State v. Thacker, Case No. 18CA21

• Decision Date: 16 September 2020
• Docket Number: Case No. 18CA21
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. FRANK J. THACKER, Defendant-Appellant.
• Court: Ohio Court of Appeals

2020 Ohio 4620

STATE OF OHIO, Plaintiff-Appellee, v. FRANK J. THACKER, Defendant-Appellant.

Case No. 18CA21

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

September 16, 2020

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Matthew F. Loesch, Portsmouth, Ohio, for appellant.

Brigham Anderson, Lawrence County Prosecuting Attorney, Jeffrey M. Smith, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.

Hess, J.

{¶1} Frank J. Thacker appeals his conviction for rape, kidnapping, burglary, and abduction with a firearm specification.¹ Thacker raises ten assignments of error for our review. He contends that the conviction was against the manifest weight and sufficiency of the evidence because there was a significant reason for the victim to fabricate testimony and physical evidence contradicted her. However, witnesses' testimony, telephone records, photographs of the victim's face and backdoor, and DNA evidence all corroborate the victim's version of events. Reviewing the record as a whole 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 exclude other acts evidence concerning a protective order and when it denied his motion for a trial continuance. Thacker failed to object to the other acts evidence or the civil protective order at trial and forfeited all but plain error. And, because Thacker's trial counsel used the other acts evidence as part of his trial strategy to undermine the victim's credibility, any error was an invited error that he cannot challenge on appeal. Additionally, Thacker failed to cite to anything in the record to support his motion for a continuance based on not having replacement eyeglasses available. He had reading glasses and the trial court provided him with a magnifying glass. There was no evidence of the degree of his vision impairment and he cited nothing in the record to support his uncorroborated allegation that he was unable to assist in his defense. The trial court did not abuse its discretion in denying his continuance.

{¶3} Thacker contends that his trial counsel was ineffective for failing to object to hearsay statements, failing to object to improper comments made during the state's closing argument and failing to request a jury poll after a shotgun shell not admitted into evidence fell from the sweatpants that had been admitted into evidence. He contends that the trial court should have declared a mistrial. However, we find that the statements Thacker objects to were non-hearsay statements used to explain the witness's conduct. And, even if they constituted hearsay, we find any error to be either harmless or the result of counsel's trial strategy. Likewise, we find no improper statements in the state's closing argument. Therefore, we find no deficiency in trial counsel's failure to object to them. In reviewing the record concerning the shotgun shell that the jury discovered during deliberations, we find that the trial court did not err in deciding not to hold a hearing to question the jury about potential prejudice. Therefore, Thacker cannot show that his trial counsel was deficient or that he was prejudiced.

{¶4} Thacker also argues that the trial court abused its discretion when it failed to grant his motion for an acquittal because the state failed to establish that the crimes occurred in Lawrence County, Ohio. However, the state introduced direct evidence through the victim's testimony and circumstantial evidence through law enforcement testimony and reports that the offenses all occurred in Lawrence County, Ohio. Therefore, the trial court properly denied his motion for acquittal.

{¶5} Thacker contends that the state committed discovery violations and should have been sanctioned with an order excluding certain receipts and checks as evidence. However, the state voluntarily agreed not to submit the receipts and checks to which Thacker's trial counsel objected. Thacker has failed to identify any receipts or checks that were admitted into evidence over his objection.

{¶6} Thacker argues that his convictions for burglary, kidnapping and rape should merge. However, the burglary offense resulted in a separate and identifiable harm from the harms that resulted from the kidnapping and rape offenses. And the kidnapping and rape convictions do not merge because the restraint on the victim was prolonged, the confinement was secretive, and the movement was substantial. In transporting the victim to two separate locations in Lawrence County in the backseat of a truck, Thacker subjected the victim "to a substantial increase in risk of harm separate and apart from that involved in the underlying crime" of rape. Therefore, the trial court did not err when it did not merge the burglary, kidnapping and rape convictions.

{¶7} 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.

{¶8} We reject his arguments, overrule his assignments of error, and affirm his convictions.

I. FACTS

{¶9} The Lawrence County Grand Jury indicted Thacker on three counts of rape in violation of R.C. 2907.02(A)(2), first-degree felonies; one count of burglary in violation of R.C. 2911.12(A)(1), a second-degree felony; two counts of kidnapping in violation of R.C. 2905.01(A)(3) and (A)(4), second-degree felonies; and one count of abduction in violation of R.C. 2905.02(A)(1)(b), a third-degree felony. All seven counts included firearm specifications. Thacker pleaded not guilty and the case proceeded to trial, which produced the following evidence.

{¶10} The victim, M.C., testified that she met Thacker in February or March 2017 and the two developed a romantic relationship. Thacker performed construction work on her home for which she paid him in full in October 2017. In May or June 2017, Thacker became more controlling and suspicious and over the summer their relationship was "on again off again." She was afraid to break it off with Thacker because of how controlling he had become.

{¶11} On September 22, 2017, Thacker came to her home and accused her of cheating on him. The argument escalated and Thacker forced her into his truck, drove her to a property he owned, assaulted her, and threatened to kill her and her two children. Although the assault occurred in September, she did not file charges against Thacker until mid-October 2017 because she was afraid of what he might do. In mid-October, with her mother, stepfather and brother present, she told Thacker to get his tools and get off of her property. She testified that Thacker reminded her that he had threatened to kill her and her children, "Just remember everything I told you on that night. I meant everything I said. I always do what I say." She then immediately went to the police station and filed a report and obtained a civil protection order against Thacker. The state introduced the civil protection order into evidence which showed that M.C. applied for it on October 23, 2017 and the trial court issued it October 31, 2017.

{¶12} There was no evidence of any further contact between M.C. and Thacker until February 9, 2018. M.C. testified that, on Friday, February 9, 2018, Thacker had a court appearance on the September assault charges. At approximately 11:25 p.m. that same evening, Thacker began calling M.C., placing eleven consecutive telephone calls from 11:25 p.m. until 11:47 p.m. The state introduced telephone records and law enforcement testimony which corroborated the victim's testimony about the telephone calls. Thacker used a "*67" procedure to block his caller identification.

{¶13} M.C. testified that she answered one of the calls and recognized Thacker's voice and called 9-1-1. The state introduced telephone records, Lawrence County 9-1-1 reports, and law enforcement testimony that corroborated M.C.'s testimony. At approximately 11:55 p.m., February 9, 2018, Deputy Steven Sisler was dispatched to M.C.'s house, arriving there at 12:04 a.m., February 10, 2018. Deputy Sisler testified that he took M.C.'s statement and left at 12:11 a.m. to try to locate Thacker. Deputy Sisler testified that M.C. appeared scared, nervous and had a shotgun laying on the kitchen counter. M.C. had no bruises or lacerations on her face and there was no sign that the kitchen door had been damaged, tampered with, or kicked in.

{¶14} M.C. testified that after Deputy Sisler left she remained in her home armed with her shotgun. At approximately 12:30 a.m., while she was in another room, her dog became agitated at the kitchen back door. M.C. went to the kitchen with her shotgun and while the dog was sniffing at the door, Thacker kicked the door in and came charging at her with a pistol aimed at her, screaming "Do you think you're gonna shoot me?" Thacker began struggling with her for control of the shotgun, continuously hitting her head. The struggle continued as Thacker dragged her outside. Thacker choked her, seized control over the shotgun, and forced her into the backseat of his truck. M.C. testified that she was terrified and believed she was going to die. Thacker started driving and telling her that she was going to die and that she should die with dignity by admitting everything she had done and that she was a "whore."

{¶15} Thacker drove her to a remote property he owned, trained the shotgun on her face, and continued to threaten to kill her, insisting that she had been involved with multiple men. M.C. testified that this went on for several hours, while she tried to calm him down and reason with him. At some point Thacker looked at his phone and the victim saw that the time was 5:08 a.m. Thacker...