State v. Richcreek

• Decision Date: 16 September 2011
• Docket Number: No. WD–09–072.,WD–09–072.
• Citation: 2011 -Ohio- 4686,196 Ohio App.3d 505,964 N.E.2d 442
• Parties: The STATE of Ohio, Appellee, v. RICHCREEK, Appellant.
• Court: Ohio Court of Appeals

196 Ohio App.3d 505

2011 -Ohio- 4686

964 N.E.2d 442

The STATE of Ohio, Appellee,

v.RICHCREEK, Appellant.

No. WD–09–072.

Court of Appeals of Ohio, Sixth District, Wood County.

Decided Sept. 16, 2011.

Paul A. Dobson, Wood County Prosecuting Attorney, and Heather M. Baker and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee.

James F. Schaller II, Perrysburg, for appellant.

YARBROUGH, Judge.

[Ohio App.3d 511] {¶ 1} Defendant-appellant, Joseph Richcreek, appeals his conviction and sentence on five counts of rape. The victims are Richcreek's twin half-sisters (identified herein as “A.M.” and “A.L.”). The alleged rapes occurred at a home that the sisters share with their stepfather, mother, and Richcreek in Perrysburg Township.

{¶ 2} In March 2009, the Wood County Grand Jury first indicted Richcreek on two single counts of rape against A.M. and A.L., denominated as case Nos. 2009CR0124 and 2009CR0125, respectively. Then, in August 2009, a second indictment was returned against him containing three additional counts as to A.L., denominated as case No. 2009CR0375. All counts of rape are first-degree felonies in violation of R.C. 2907.02(A)(2). The jury found Richcreek guilty on all five counts following a two-day trial. Sentencing and sex-offender-classification hearings were held. The trial court determined Richcreek to be a Tier III offender and ordered him to register as such. The court then sentenced him to five consecutive eight-year terms of imprisonment. This appeal ensued.

{¶ 3} For the reasons that follow, we reverse. Because this appeal involves different witnesses and different dates for the alleged rapes, we will discuss the facts separately with respect to each sister.¹

{¶ 4} The record, witness testimony, and documents admitted at trial reflect the following facts relevant to the sole count of rape involving A.M. This incident allegedly occurred in February 2007, when she was 17 years old. At trial the state first called Nicholas Bissett, a friend of A.M., who testified that they had attended school together at Penta Career Center. According to Bissett, one night while on his computer, he received an instant message from A.M. that said, [Ohio App.3d 512] “My older brother raped me.” Defense counsel objected to this testimony on hearsay grounds. After the prosecutor responded that “it's not being offered for the truth of the matter asserted necessarily but to show what [A.M.] did,” the court overruled the objection. Bissett then testified that A.M.'s message said that she had been in the basement where Richcreek's bedroom was and that he “cornered me, pushed me on his bed, and * * * had his way with me.” He urged her to report the incident, but A.M. replied, “Don't tell anyone,” and “I'll handle it in my own way.” Sometime later, Bissett received a second computer message from A.M. that said, “Joe did it to me again.” Further objections were overruled.

{¶ 5} The next day at school Bissett took her to a Penta County school official to report the incident. This led to a February 26, 2007 interview with Matthew Weaver, a Perrysburg Township police officer, during which Weaver obtained written statements from both Bissett and A.M. At trial, Weaver testified about A.M.'s handwritten 2007 report. Over a hearsay objection, he was allowed to summarize the contents of this report, telling the jury that “for the past five years she had been molested by her half brother Joseph [and she] stated it had taken place numerous times since she had been twelve years old.” The report described these encounters in which A.M. wrote that Richcreek would “molest me by grabbing my chest or touching my vigina [sic]. He would then have sex with me.” Weaver indicated that A.M. denied that Richcreek forced or threatened her, but that “she did indicate each time that she told him no.” Further hearsay objections were overruled on the same nonhearsay basis, and A.M.'s report was admitted at trial.

{¶ 6} After meeting with Weaver, A.M. was taken to St. Luke's Hospital, where she met with sexual-assault nurse Sharon Wilson and Wood County Children Services investigator Jennifer Bender. Despite defense counsel's “ongoing hearsay objection,” Bender summarized the substance of her report at trial, stating that A.M. said that “she had been raped by Joseph Richcreek.” According to Bender, A.M. and her mother, Barb English, who was also present, were uncooperative. A.M. refused a sexual-assault examination because “she did not want her brother to go to jail [but] just wanted him to move out of the house.” Bender testified that her agency declined to pursue criminal prosecution of the rape allegation in 2007 “due to [the] family's non-cooperation.” Nurse Wilson testified that A.M. refused a rape-kit exam, although a pelvic exam and a pregnancy test were conducted. The hospital's emergency-department physician's report lists “possible sexual assault” and “questionable sexual assault” as the reasons for the examination. The emergency-department report was admitted at trial.

{¶ 7} The next day at school, A.M. met with Perrysburg Township Officer Rachel Bernhard, who was also the Penta County school-resource officer. Bernhard[Ohio App.3d 513] testified that A.M. said Richcreek approached her while she was at her computer “and told her to meet him in the basement [where] his bedroom was.” Though counsel asserted a second “ongoing” hearsay objection to Bernhard's testimony, the court overruled it, telling the jury: “Again, it's not being offered for the truth of the matter asserted and the witness is under subpoena and subject to cross-examination.” Bernhard then testified that A.M. said that Richcreek “made her grab his penis [and then] made her take her pants off and he threw her on the bed and had sexual intercourse with her.” Bernhard stated that A.M. denied that Richcreek had made threats or held her down, “but she told him no, but he did it anyway.” A.M. said that she did not tell anyone about the incident, Bernhard testified, because “she didn't want her brother to be in trouble or go to jail.”

{¶ 8} Two years later, in February 2009, Perrysburg Township Detective James Gross met with A.M. to discuss her 2007 report. Gross did so because he was then investigating similar claims made more recently by her sister, A.L., that Richcreek had sexually assaulted her several times. At trial Gross testified that A.M. told him that the earlier 2007 allegations were true, but that she had not cooperated then because “she did not want to get her brother in trouble.” After this meeting, A.M. wrote three emotionally ambivalent letters to Gross. Much of the subject matter was vague, but none of the letters made specific claims of forcible sexual assault by Richcreek. The letters were admitted at trial.

{¶ 9} From both Detective Gross's investigation and a voice-mail message that the prosecutor received from A.M. several weeks before trial, the state was already aware that she would be recalcitrant. She was subpoenaed to testify for the prosecution on August 17, 2009, but failed to appear at trial. The prosecutor then moved for and was granted a material-witness arrest warrant, and A.M. was arrested the same day. Prosecution witnesses Bissett, Weaver, Bernhard, Bender, and Wilson all testified prior to A.M.

{¶ 10} When A.M. testified on August 18, she recanted the substance of her earlier statements to these witnesses, specifically denying that Richcreek raped her. A.M. conceded making the 2007 rape claim, but stated that she did so only because she was jealous of the way her parents favored Richcreek “with more attention,” while being strict with her, and because she “wanted him kicked out of the house.” She persisted with the rape claim during Gross's 2009 investigation only because she feared “[getting] in trouble for writing a false [police] report.” Through extensive questioning about her previous statements to the various witnesses and those in her police report and letters to Gross, the prosecutor attempted to impeach A.M.'s recantation. However, she continued to deny having been raped by Richcreek. Defense counsel then cross-examined her about her prior statements. She again denied that Richcreek ever threatened [Ohio App.3d 514] her or forced her to have intercourse, explaining that she fabricated the claim out of jealousy because he received more favorable parental attention and gifts, such as a car.

{¶ 11} Unlike A.M., A.L. did not recant her claims of rape. The four incidents on which these counts are based are as follows. A.L. testified that on January 30, 2009, while at home, she and Richcreek were “wrestling around” in the living room. He then “took [her] downstairs and had sex with [her]” in his basement bedroom. A.L. explained that after telling him to stop, he continued removing her clothes. When she tried to fight him, “he hit and punched [her].” A.L. testified that on February 2, 2009, after again wrestling with Richcreek, “he drug [her] downstairs to his room, and he had sex with [her] again.” She was 19 at the time of the 2009 incidents.

{¶ 12} A.L. also testified that Richcreek raped her twice in December 2008. The first incident occurred on December 19 after Richcreek and A.L. had been wrestling in the living room. Later, after taking a shower, she found a note Richcreek left in her bedroom asking her to come to the basement. She complied and, once there, he asked to borrow some money. A.L. stated that Richcreek then “grabbed ahold of me and threw me on his bed and had sex with me.” She attempted to push him away, but testified that “he's stronger than me and overpowered me.” She did not tell her mother because she feared she would not believe her.

{¶ 13} A.L. testified that the next morning, Richcreek apologized “for what he did the day before.” Later, however, while she was doing laundry in the basement, he assaulted her again. A.L. testified that during this incident Richcreek “grabbed me...