State v. Thacker
| Decision Date | 05 August 2021 |
| Docket Number | 19CA18 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. FRANK J. THACKER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Jeremy Masters, Assistant State Public Defender, Columbus, Ohio, for appellant.
Brigham Anderson, Lawrence County Prosecuting Attorney Ironton, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Frank J. Thacker appeals his conviction for rape, kidnapping and abduction. Thacker raises five assignments of error for our review. He contends that his conviction was against the manifest weight of the evidence because the victim initially failed to testify as to penetration and there were numerous inconsistencies between the victim's testimony and the testimony of a key witness. However, not only did the victim testify about penetration, but the treating physician also testified that the sexual assault included penetration. Moreover, both the victim and her friend testified consistently about the events that occurred that evening, the type and color of vehicle, and the general appearance of the assailant. Additionally, the state presented the testimony of two DNA experts who testified that the DNA specimen collected from the victim was an exact match to Thacker. Reviewing the record, we cannot say that this is an exceptional case where the evidence weighs heavily against the convictions, that the trier of fact lost its way, or that a manifest miscarriage of justice has occurred. Accordingly, the verdict was not against the manifest weight of the evidence.
{¶2} Thacker argues that the trial court abused its discretion when it denied his motion to dismiss the indictment because the 19-year preindictment delay was the result of inactions or omissions of the state. However, Thacker failed to prove actual prejudice by the preindictment delay. Thus, the trial court did not abuse its discretion in denying his motion to dismiss.
{¶3} Next, Thacker contends that the trial court should have declared a mistrial due to misconduct of a juror because the juror failed to disclose her relationship to the victim. But the trial court removed that juror, replaced her with an alternate, and conducted a voir dire of the remaining jurors to determine whether they were able to be fair and impartial. Each juror testified that they would be fair and impartial. Thus, the trial court did not abuse its discretion when it denied Thacker's motion for a mistrial.
{¶4} Thacker argues that his trial counsel was ineffective for: (1) failing to bring the trial court's attention to three separate felony arrests from which the state should have obtained his DNA sample, which he argues bolsters his claimed violation of his speedy trial rights and (2) failing to object to the prosecution's leading questions of the victim that rehabilitated the state's case pertaining to the ultimate issue of penetration. However, we find that trial counsel was not deficient for failing to raise his three prior felony arrests because the state was under no obligation to obtain Thacker's DNA specimen at the time he was arrested for those offenses. And, because he failed to show actual prejudice from the preindictment delay, the state's reasons for the delay were irrelevant to the speedy trial analysis. Additionally, trial counsel's decision not to object to leading questions is a matter of trial strategy we do not second guess. Therefore, Thacker has failed to show that his trial counsel was deficient or that he was prejudiced.
{¶5} Last, Thacker contends that these cumulative errors warrant a reversal. However, because we find no merit to any of his assignments of error, the cumulative error doctrine is not applicable.
{¶6} We reject his arguments, overrule his assignments of error, and affirm his convictions.
{¶7} In May 2018, the Lawrence County Grand Jury indicted Thacker on three counts of rape in violation of R.C. 2907.02(A)(2), all first-degree felonies; one count of kidnapping in violation of R.C. 2905.01(A)(4)(1), a first-degree felony; and one count of abduction in violation of R.C. 2905.02(A)(1)(b), a third-degree felony, all which allegedly occurred more than 18 years earlier, in December 1999. Thacker pleaded not guilty and moved to have the indictment dismissed, arguing that his rights to a speedy trial and due process had been violated. The state opposed the motion, arguing that the state did not know that Thacker was the perpetrator until the Combined DNA Index System (CODIS) match of his DNA occurred in April 2018. Thacker's DNA was procured after he was arrested in February 2018 for separate kidnapping and rape offenses involving a different victim. The trial court denied Thacker's motion to dismiss. Prior to the start of the trial, the state moved to dismiss count three of the indictment, which the trial court granted. The case proceeded to trial, which produced the following evidence.
{¶8} Jennifer Cornette was the childhood friend of the victim, A.S., and was with her the night A.S. was kidnapped and raped. Cornette testified that on December 22, 1999 she was a 14-year-old seventh grader who was having a sleepover at A.S.'s house. The two girls decided to sneak out of the house and meet up with a boy acquaintance who lived in the area. After A.S.'s parents went to bed, Cornette and A.S. left the house and went to a local gas station to meet the boy. The boy did not show up and, after they called him from a payphone, the two girls started walking back to A.S.'s house. During the walk along County Road 1, a white or light-colored Jeep Cherokee pulled up and the male driver asked them if they needed a ride home. The girls declined the offer and the male drove off. However, as they walked farther up the road, Cornette saw the taillights of the parked vehicle and told A.S. they needed to run. The male driver jumped out from the side of the road and came after Cornette, grabbing her by the hair. Cornette managed to escape. Cornette looked back and saw the male driver approaching A.S. Cornette described the driver as white, with a mustache, brown hair, a little thinning on the top, and a little taller than Cornette, who was 5'9" at the time. Cornette tried to get help and eventually ran back to A.S.'s house and told A.S.'s father what had happened and he called 9-1-1. Cornette learned that A.S. had been released by the assailant, had walked to a family friend's house, and called authorities. Cornette and A.S.'s father took A.S. to the hospital emergency room for medical treatment.
{¶9} Cornette testified that in 2018 she was asked to participate in a police photographic lineup. She chose a photo from the lineup but told police that it had been nearly 20 years and the photo she selected was the closest to the person she saw that night back in 1999, but she could not be 100 percent certain. The photo Cornette identified was of Thacker from 1999. In the statement she gave to the police in the early morning after the attack, Cornette stated that the vehicle was an older looking, brown, light tan, or white car.
{¶10} A.S. testified that on December 22, 1999 she was 14 years old and her best friend, Cornette, and she were having a sleepover at A.S.'s house. She and Cornette planned to sneak out of the house and meet up with friends at the local gas station. A.S. and Cornette left the house after midnight but the friends did not show up at the gas station. After waiting around for a while, A.S. and Cornette started walking back to A.S.'s house. A man pulled up and asked if they wanted a ride and they said no. They pointed at a house and stated that they live at the nearby house so the man drove off. But as they continued walking, they saw the vehicle with the lights on. A.S. and Cornette started running, but the man grabbed A.S. and she fell to the ground.
{¶11} The man forced her into his vehicle and drove off with her, talking to her, telling her he was going to teach her a lesson. The man pulled his penis out of his pants, grabbed A.S.'s hair and tried to force her to perform oral sex. The man continued to drive until they reached a remote area with a big metal cylinder. The man forced A.S. to remove her clothes and then he tried to put his penis into her vagina and rectum. Afterwards, he told her to put her clothes back on and told her she was not going to tell anyone because he could find her and kill her. He released A.S. and she made her way to a family friend's house. She was dry heaving, throwing up, and collapsed at their house. She told them what had happened and they called her father. The police were notified and A.S. went to the hospital and made a police report. A.S. described the man as having a receding hairline and that the vehicle he was driving was a light-colored, SUV-type of car with a "bag phone" cellular phone. A.S. stated that the man was having difficulty with an erection but did insert his penis into both her vagina and rectum.
{¶12} The medical personnel working at the hospital on December 22, 1999 testified about the physical examination performed on A.S. and the steps taken to collect and preserve evidence for the police, which included swabs of A.S.'s vagina and rectum. The treating physician testified that A.S. had a tear in her hymen which indicated penetration during sexual assault.
{¶13} Ms. Kennedy, an expert witness in the field of forensic science with a specialty in DNA analysis, testified that she performed an analysis on the samples taken from A.S.'s vagina and rectum, obtained a profile, and entered them into CODIS in 2001. Ms. Jimenez, also an expert witness in the field of forensic science with a specialty in DNA analysis testified that she obtained DNA samples from Thacker in 2018 and was alerted that it was consistent...
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