State v. Harvey

[Cite as State v. Harvey, 

.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-22-1029

        Appellee                                 Trial Court No. CR0202101334

v.

Quincy Harvey                                    DECISION AND JUDGMENT

        Appellant                                Decided: December 22, 2022

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani and Rebecca A. Facey, Assistant
        Prosecuting Attorneys, for appellee.

        Laurel A. Kendall, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} This matter is before the court on the appeal of defendant-appellant, Quincy

Harvey, from the February 7, 2022 judgment of the Lucas County Court of Common

Pleas which, following a jury trial convicting him of two counts of rape, and one count
each of kidnapping, felonious assault, resisting arrest, and obstructing official business,

sentenced him to a minimum of 41 years of imprisonment. Although we find that the

court erred in granting the state’s motion for forfeiture by wrongdoing, absent the

improperly admitted evidence, the sufficiency and manifest weight support the jury’s

verdicts as to the rape and kidnapping charges. Accordingly, we affirm.

                                           I. Facts

       {¶ 2} Appellant was arrested on March 1, 2021, following an incident at the

apartment of his girlfriend, victim, A.D., where she alleged that appellant had beaten her

over a course of hours and prevented her from calling for help. A.D. also reported that

she had been sexually assaulted. Appellant was indicted on March 9, 2021, on two

counts of rape, first degree felonies, one count of kidnapping, a first degree felony, one

count of felonious assault, a second degree felony, and second-degree misdemeanors of

resisting arrest and obstructing official business.

       {¶ 3} In May 2021, A.D. filed an affidavit with the court recanting certain

statements she had previously made to police. A.D. stated that on the night in question,

she and appellant had gotten into a physical altercation but she denied that he had hit her

with a hammer or that he had sexually assaulted her. A.D. stated that she lied to police

because she was angry with appellant.

       {¶ 4} Based on the affidavit and anticipating that A.D.’s trial testimony would

contradict statements made to police on July 27, 2021, the state filed a motion requesting




2.
that A.D. be called as a court’s witness, Evid.R. 614(A), thereby allowing the state to

question her on cross-examination. On January 13, 2022, the motion was granted.

       {¶ 5} In preparation for trial, the state issued subpoenas to serve A.D. for the

rescheduled trial date of December 14, 2021, and trial date of January 25, 2022. Both

subpoenas were returned and stated that the witness no longer resided at the address. It is

undisputed that during the course of the proceedings, despite a no contact order appellant

contacted A.D. from jail by telephone and email numerous times and that the proceedings

were a frequent topic of conversation.

       {¶ 6} The trial in the matter commenced on January 25, 2022. The 911 call placed

by A.D. was played for the jury. During the call, A.D. indicated that she was calling

from a nearby sister’s house and that she had been assaulted by her boyfriend over a

course of hours, that he had taken her phone and broken “everything” in the house, and

that he hit her with a hammer. A.D. stated that she was walking back to her apartment

where her kids were sleeping.

       {¶ 7} Testimony was elicited from multiple Toledo Police officers who were

dispatched following the 911 call placed by A.D. When officers arrived, A.D. exited the

apartment. She had visible injuries, appeared scared and was shaking, and was speaking

softly. A.D. injuries included a large, swollen welt on her forehead, and bruises on her

arms and legs.




3.
       {¶ 8} Entering the apartment the officers witnessed appellant, unclothed with a

towel across his body, sleeping on the couch. He had no visible injuries. After multiple

attempts, they were able to wake him. According to the officers, appellant was told to

stop resisting multiple times and various restraint techniques were used to subdue him

and get him into custody.

       {¶ 9} The officers testified that based on the condition of the apartment, a struggle

had taken place. They observed pillows and clothing strewn about, broken glass, small

kitchen appliances on the ground, broken mirrors, a broken television, a bedroom bed and

dresser displaced, and the chandelier ripped down from the ceiling.

       {¶ 10} Video from the officers’ body-worn cameras were played to the jury.

Defense counsel objected to the video, specifically the testimonial statements made by

A.D., arguing that the admission of such statements was a confrontation clause violation.

Counsel voiced an ongoing objection as to the statements. The state countered that the

statements were made in the context of an ongoing emergency- the suspect was still in

the apartment with A.D.’s children. The court overruled the objection.

       {¶ 11} As to the alleged sexual assault, one of the responding officers, the only

female, testified that A.D. privately told her that appellant had “forced himself into her.”

This was reflected in the body-cam video.

       {¶ 12} A Toledo Fire fighter and EMT testified that he responded to an “assault

and rape” call involving A.D. Summarizing his run report which was admitted into




4.
evidence, the EMT stated that A.D. had injuries to her head and complained of being hit

by a hammer. The EMT indicated, over objection, that A.D.’s complaints included that

she had been assaulted and raped over the course of two hours. The EMT stated that his

report was based solely on what was reported by police at the scene.

       {¶ 13} On the beginning of the second day of trial, the state filed a motion

pursuant to Evid.R. 804(B)(6), requesting that A.D.’s statements to law enforcement be

admitted due to the approximately 1,000 telephone calls and over 3,000 email messages

made by appellant to A.D., while in custody at the county jail and in violation of a no

contact order, during the pendency of the case. The motion indicated that the focus of

many of the exchanges was getting the charges against appellant dismissed. The state

claimed that A.D. had not made herself “available” as a witness and that the subpoenas

issued to her for the December 2021 and January 2022 trial dates were returned as

undeliverable. The state claimed that through the recorded discussions with appellant

following the first day of trial, it was established that she was aware that the trial was

happening and that her testimony was of “central importance” to the case.

       {¶ 14} A discussion regarding the motion was had in chambers. The state first

recounted its motion, filed months prior, requesting to have A.D. testify as a court

witness due to its belief that she would testify on appellant’s behalf. The state noted that

A.D. had been in contact with appellant during the pendency of the case and that she had

filed an affidavit in May 2021, recanting most of the allegations against appellant.




5.
       {¶ 15} The state noted that A.D. had not appeared at trial and it was “unable to get

a subpoena in her hand because attempts were returned to the Lucas County Prosecutor’s

office undeliverable.” The state indicated that it was not sure that A.D. was even aware

that the trial was taking place until the prior evening when nine telephone calls were

made from the jail to A.D. The state indicated that the conversations focused on the trial

taking place. Acknowledging that appellant did not specifically tell A.D. not to appear

for trial, the state noted:

               [I]n one of the calls last night, when it’s clear that the trial is going

       forward despite both of them hoping that it was going to be dismissed, she

       suggests that she should come down here and clear all of this up. And

       while Mr. Harvey does not specifically say, no, no, do not do that, he does

       dissuade her, and that is not a part of their ultimate plan when getting off

       the phone.

       {¶ 16} The state indicated that, in its view, this was the “tipping point” rendering

A.D. “unavailable” under Evid.R. 804(B)(6). Granting the motion, the court stated that

based on the totality of the circumstances, including appellant’s violation of the no

contact order and the sheer number and central topic of the contacts, it was not necessary

that the state show that appellant specifically told A.D. not to appear at trial.

       {¶ 17} The trial then resumed and testimony was elicited from the SANE (sexual

assault nurse examiner) nurse who treated A.D. The SANE nurse stated that she treats




6.
victims of “interpersonal violence” including victims of sexual assault, domestic

violence, and strangulation. The nurse stated that once the patient is medically stable, a

SANE examination, which includes a detailed history of the event and evidence

collection, is conducted. Defense counsel objected to testimony regarding information

given by A.D.

       {¶ 18} The nurse testified that she immediately noticed that A.D. had visible

injuries to her head, face, and arms. The SANE nurse agreed that the history given by

A.D. guided the focus of the exam. The nurse read from the detailed assault history

where A.D. explained that appellant, her then-boyfriend, beat and strangled her and hit

her in the head with a hammer, poured water and coffee creamer on her, destroyed

multiple items in the home, and then forced oral and vaginal sex. The SANE nurse

testified as to the photographic evidence she collected; the photographs were admitted

into evidence. The nurse agreed that there was no vaginal trauma but stated that such a

finding has no real bearing on whether she was sexually assaulted. The nurse stated that

this is especially true when a victim is menstruating.

       {¶ 19} A forensic scientist from the Ohio Bureau of Criminal Investigation (BCI)

testified that she works in the DNA section analyzing evidence for the presence of bodily

fluids. The scientist conducted testing on samples collected from A.D.’s rape kit which

included vaginal, anal, and oral swabs, a hammer, A.D.’s underwear, and a DNA

standard from appellant.




7.
       {¶ 20} The vaginal samples were negative for appellant’s DNA. The scientist

explained that when a woman is menstruating it can flush out or mask smaller quantities

of DNA (found in a suspect’s semen.) Also, if a victim “cleans up” after the assault,

DNA can be wiped away. The oral samples were, likewise, negative with the expert

noting that saliva continuously filters and cleans the mouth. The testing results from the

anal samples, showed evidence of an unknown male contributor.

       {¶ 21} As to A.D.’s underwear, the scientist testified that the front panel contained

some DNA from an unknown male contributor. The testing of the back panel of the

underwear revealed that A.D. and appellant (a non-sperm fraction) were major

contributors. The frequency of the occurrence is less than one in one trillion.

       {¶ 22} The skin swabs from the left and right sides of A.D.’s face included

appellant as a contributor to the DNA profile. The results from the swab from the

hammer’s wooden handle, revealed no identifiable profile due to the large number of

contributors. The swab of the hammer’s head showed appellant as the major DNA

contributor.

       {¶ 23} The DNA expert agreed that the testing of the samples revealed no

presence of semen. The expert clarified that because the presumptive test was negative a

confirmatory test was not conducted. The report was admitted into evidence.

       {¶ 24} Two Lucas County Sheriff resource officers each testified that their

responsibilities included monitoring the Lucas County jail’s phone system and individual




8.
computer tablets that inmates are assigned upon arrest and booking. The tablets allow

inmates to send outside emails and have video visitation. The contact must be initiated

by the inmate. When using the tablets, inmates have to enter a specific, individualized

pin number. Specific tablet messages can be extracted. The emails or messages between

appellant and A.D. listed the recipient as N.W. when, in fact, the email address was

A.D.’s. The messages from March 1, 2021 through July 28, 2021, totaled 3,033.

       {¶ 25} Telephone call participants are notified that they are being monitored at the

beginning of each call. The phone logs are monitored and recorded by an outside

company and the recordings can be accessed by the county resource officers. As to

appellant, a search was made regarding calls made to two phone numbers associated with

A.D. The amount totaled approximately 998. The officer agreed that appellant placed

nine phone calls to A.D. the night before; seven of the calls were completed.

       {¶ 26} A disc with a phone recording from March 1, 2021, the day of appellant’s

arrest, was played for the jury. The call had appellant and A.D. discussing the events.

A.D. expressed anger at the items destroyed by appellant, the injuries he inflicted upon

her and the liquids he dumped on her, and that he forced her to engage in fellatio.

Appellant claimed to not remember the incident.

       {¶ 27} The state’s final witness, Toledo Police Detective Nate Morrison, was

assigned to investigate the incident. Morrison stated that he observed appellant while he

was still in a holding cell and that he appeared to be intoxicated.




9.
       {¶ 28} Detective Morrison testified that he met with A.D. while she was being

treated at the hospital. Morrison described her injuries as severe bruising and swelling to

her head, scratches, red marks, and swelling on her arms and legs. Morrison stated that

A.D. appeared fearful, a bit confused, and relieved to be getting help.

       {¶ 29} Detective Morrison was then asked to recount what A.D. told him; the

objection to the testimony was overruled. A.D. first described the property destroyed by

appellant. She then stated that she was dragged from room-to-room by her hair; she was

assaulted in each room. A.D. stated that she was hit in the head with a hammer.

Morrison testified that he could see the imprint of the round hammer head on her

forehead. Morrison further testified that A.D.’s hair was knotted and matted and that

portions were pulled out but still clinging to the knots.

       {¶ 30} As to the sexual assault, A.D. stated that appellant forced his penis into

A.D.’s mouth. A.D. further stated that appellant had her bend over the couch and

vaginally penetrated her against her will. A.D. stated that she did not know if appellant

ejaculated or not prior to stopping. She got him a towel so he could clean up (she was

menstruating at the time); he then fell asleep.

       {¶ 31} Detective Morrison stated that on March 3, 2021, he went to A.D.’s home

to collect evidence. He noted that the bruising to A.D. face and limbs had become very

heavy, especially around her eyes. Morrison was also able to observe the “remnants” of

the damage done to the apartment. Photographs taken by Morrison of A.D. and the




10.
apartment were admitted into evidence. He also collected towels used by appellant and

A.D. to wipe up after the assault.

       {¶ 32} Morrison stated that the items he collected that were sent to the BCI

included appellant’s buccal swab, the SANE kit, and the hammer. He indicated that the

towels given to him by A.D. were not sent because they were limited in the number of

items that could be submitted for testing. Detective Morrison stated that he made a later

inquiry about the towels but that the BCI advised him that a DNA connection had already

been made and that they would not take any additional items.

       {¶ 33} Detective Morrison testified that after interviewing A.D. and reviewing the

evidence he charged appellant with two counts of rape, for the oral and vaginal rapes,

kidnapping, for the acts of forcing A.D. and dragging her throughout the house, felonious

assault, based on the injuries A.D. sustained from the hammer, and resisting arrest and

obstruction of justice due to appellant’s actions when police attempted to get him into

custody.

       {¶ 34} Detective Morrison was questioned about his contact with A.D. over the

course of the proceedings. He stated that early in the investigation they were in regular

contact with each other and that on March 9, 2021, she appeared at the grand jury

proceedings. Shortly thereafter, however, she ceased cooperating and would not return

his phone calls. Morrison stated that this is common in domestic violence situations




11.
especially where the couple reconciles. He noted the constant contact appellant and A.D.

maintained, despite a no contact order, which he believed impacted the proceedings.

       {¶ 35} Morrison acknowledged A.D.’s recantation in May 2021; he indicated that

it did not change the course of the investigation because it frequently occurs in cases of a

domestic nature. He agreed that she did not try to recant any statements relating to her

physical injuries. He also agreed that the recantation did not change the condition her

apartment was found in on March 1, 2021, and that it did not change the results of the

DNA testing.

       {¶ 36} Detective Morrison testified that nine calls were placed to A.D. following

the first day of trial and that he believed she and appellant were a couple. Morrison

admitted that he was not sure if A.D. was ever subpoenaed to appear at trial because the

attempts were returned as undeliverable. He stated that A.D., despite knowing that the

trial was underway, had not made herself available to testify against appellant. The

detective stated that evidence of her knowledge was based on the nine jail calls placed

following the first day of trial.

       {¶ 37} During cross-examination, Detective Morrison acknowledged that A.D.

recanted her statements in May 2021 by sworn affidavit rather than just a letter or

contradictory statement. Morrison stated that he did not attempt to talk with A.D. at this

point because he had lost all contact with her in mid-March. Detective Morrison testified




12.
that during the course of the proceedings he checked the search engine LexisNexis for a

possible new address to send victim witness letters.

        {¶ 38} Detective Morrison was questioned about the DNA and physical evidence,

including that there was neither vaginal trauma nor the presence of semen. He was also

questioned about the fact that a potentially significant item of evidence, the towel

appellant allegedly wiped himself off with after sex, was not submitted to the BCI.

Morrison was further questioned about the fact that there was no photographic or

physical evidence demonstrating that A.D. was dragged through the apartment by her

hair.

        {¶ 39} At the conclusion of the state’s evidence, defense counsel made a Crim.R.

29 motion for acquittal arguing that there was no evidence that the rapes occurred “during

a period of force” and that, generally, appellant should be acquitted of all six charges.

The state contended that even with the SANE nurse testimony alone, there was sufficient

evidence that A.D. was forcibly raped. The motion was denied. With the defense not

presenting any evidence, the motion was renewed and again denied.

        {¶ 40} The jury returned guilty verdicts as to all the charges. This appeal followed

the February 22, 2022 sentencing.




13.
                                 II. Assignments of Error

               I. The trial court abused its discretion by granting the state’s motion

       for forfeiture by wrongdoing pursuant to Evid.R. 804(B)(6).

               II. The trial court abused its discretion by denying Harvey’s motion

       for acquittal as the charges of rape and kidnapping pursuant to Crim.R. 29,

       because appellant’s convictions were not supported by sufficient evidence.

               III. Appellant’s convictions for rape and kidnapping were not

       supported by the manifest weight of the evidence.

                                       III. Discussion

                     A. Evid.R. 804(B)(6) Forfeiture by Wrongdoing

       {¶ 41} In appellant’s first assignment of error he argues that the court abused its

discretion when it granted the state’s motion for forfeiture by wrongdoing pursuant to the

hearsay exception under Evid.R. 804(B)(6). The state counters that, as demonstrated by

the preponderance of the evidence, appellant’s constant contact with A.D., in violation of

the no contact order, and continual pleas to make the case go away, caused A.D. to be

unavailable for trial.

       {¶ 42} An accused’s right to confront the witnesses against him or her, established

in the Confrontation Clause of the Sixth Amendment and codified in the state and federal

rules against hearsay, “both restrict the use of statements of a person not present at trial.”

State v. Keairns, 

, 

 (1984). A trial court’s hearsay




14.
rulings are generally reviewed for an abuse of discretion. State v. Hymore, 

, 

 (1967). However, we review de novo evidentiary rulings that

implicate the Confrontation Clause. State v. McKelton, 

, 2016-Ohio-

5735, 

, citing United States v. Henderson, 

 (6th

Cir.2010).

       {¶ 43} Evid.R. 804 provides several exceptions to the rule against hearsay based

on the unavailability of a witness. Relevantly, the rule provides:

              (A) Definition of Unavailability. “Unavailability as a witness”

       includes any of the following situations in which the declarant:

              ***

              (5) is absent from the hearing and the proponent of the declarant’s

       statement has been unable to procure the declarant’s attendance (or in the

       case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the

       declarant’s attendance or testimony) by process or other reasonable means.

              A declarant is not unavailable as a witness if the declarant’s

       exemption, refusal, claim of lack of memory, inability, or absence is due to

       the procurement or wrongdoing of the proponent of the declarant’s

       statement for the purpose of preventing the witness from attending or

       testifying.




15.
             (B) Hearsay Exceptions. The following are not excluded by the

      hearsay rule if the declarant is unavailable as a witness:

             ***

             (6) Forfeiture by Wrongdoing. A statement offered against a party if

      the unavailability the witness is due to the wrongdoing of the party for the

      purpose of preventing the witness from attending or testifying. However, a

      statement is not admissible under this rule unless the proponent has given to

      each adverse party advance written notice of an intention to introduce the

      statement sufficient to provide the adverse party a fair opportunity to

      contest the admissibility of the statement.

      {¶ 44} Forfeiture by wrongdoing is a recognized equitable exception to a

defendant’s constitutional right to confront the witnesses against him. 

,

citing Giles v. California, 

, 

, 

 (2008);

Reynolds v. United States, 

, 

 (1878). In 2001, the doctrine

was codified as a hearsay exception under Evid.R. 804(B)(6).

             To admit statements under this exception, a prosecutor must show by

      a preponderance of the evidence that (1) the defendant engaged in

      wrongdoing that caused the witness to be unavailable and (2) one purpose

      for the wrongdoing was to make the witness unavailable to testify. See




16.
       State v. Fry, 

, 

, 

, ¶ 106;

       State v. Hand, 

, 

, 

, ¶ 84.

       {¶ 45} Interpreting the forfeiture by wrongdoing exception, the state urges us to

apply the reasoning in a Third Appellate District case involving similar jail contacts

between the victim and the defendant. State v. Artis, 

, 

(3d. Dist.). In Artis, the defendant was charged with domestic violence. Approximately

three weeks prior to trial, the state filed a motion for forfeiture by wrongdoing asking that

the court declare the victim unavailable as a witness due to audio recordings of jail calls

where the defendant repeatedly “suggested” that the victim not appear for trial. Id. at ¶ 4.

At the start of trial, the state renewed its motion after confirmation that the victim was

refusing to appear for trial. Id. at ¶ 5. Granting the motion, the court concluded that the

state proved by a preponderance of the evidence that the defendant “colluded” with the

victim to not respond to a properly-served subpoena. Id. at ¶ 6.

       {¶ 46} Affirming the forfeiture by wrongdoing determination, the appellate court

found clear evidence of wrongdoing based on the extensive conversations between

appellant and the victim. Id. at ¶ 19-20. As to the victim’s unavailability, the trial court

recounted that after she failed to appear at trial as ordered in the subpoena, the court

found her in contempt and directed the sheriff’s office to locate her. Id. at ¶ 22. The

victim was located over an hour away and still refused to comply with the subpoena. Id.




17.
at ¶ 23. The court concluded that the trial court’s determination of unavailability was

supported by the record. Id. at ¶ 29.

       {¶ 47} This court has similarly held that the trial court properly granted a motion

for forfeiture by wrongdoing where, after the victim had been properly subpoenaed and

attempted to be reached at home and through family members, the court concluded that

the appellant, by contacting the victim in violation of the no contact order and instructing

others to make sure she did not appear at trial, caused her unavailability. State v. Harper,

, 

 (6th Dist.). See State v. Parker, 6th Dist. Lucas No. L-

18-1238, 

 (chronicling an extensive list of measures taken by the

state in an attempt to secure the victim’s presence at trial and then finding that the trial

court did not err in granting the state’s motion for forfeiture by wrongdoing); State v.

Gonzalez, 6th Dist. Wood Nos. WD-19-068, WD-19-069, 

 (after

successful service of a subpoena, the victim’s failure to appear was attributed to

appellant’s continued harassment and threats).

       {¶ 48} The critical distinction between the above-cited cases and the case at bar is

the trial court’s proper finding that the state was unable to serve A.D. through process or

other reasonable efforts. Illustrative, though not binding on this court, the Oregon

Supreme Court had addressed witness unavailability where a subpoena was not served

and the domestic violence victim had been repeatedly threatened and did not appear at

trial. State v. Iseli, 

 (Or.2020). The court noted that a defendant’s conduct




18.
is, by definition “relevant” to the forfeiture by wrongdoing inquiry and not “irrelevant” to

the broader unavailability inquiry. 

. The court noted that the “reasonable

means” inquiry contemplates a totality of the circumstances approach, 

 and the reason

for a declarant’s nonattendance has bearing on the reasonable means to be employed in a

particular case. 

. The court concluded that a determination of reasonableness of

procuring a witness’ attendance beyond service of a subpoena included the consideration

of the costs of securing the witness’ attendance, the importance of the testimony, and the

likelihood that the additional efforts would produce the witness. 

. The court

ultimately concluded that the state had failed to establish the victim’s unavailability. 

.

       {¶ 49} In the present case, the state does not dispute that A.D. was not served by

subpoena. The record contains two unserved subpoenas dated November 23, 2021, and

just before trial on January 11, 2022. Thus, because appellant was not served by process,

we must consider what reasonable means were employed to secure her appearance. Even

a cursory review of the record demonstrates that A.D. had several ties to the community.

As evidenced in the 911 call, she had a sister who, on the date of the incident, lived just

minutes away. In fact, her children were dropped off there prior to A.D. being

transported to the hospital. Further, many of the records admitted into evidence had

A.D.’s mother’s name and local address listed. There was no evidence presented that the

state contacted any family members to identify A.D.’s whereabouts. Though appellant,




19.
through coercive means, certainly worked to ensure that A.D. would not testify against

him, this did not relieve the state of its obligation to secure her attendance at trial.

Further, and concerning to this court, is the state’s knowledge that A.D. had recanted

several of the allegations in May 2021. Her contradictory testimony was anticipated as

evidenced by the state’s request that she be called as a court’s witness. Certainly, the

ability to present her statements through the testimony of responding officers would be

easier and likely more convincing to the jury. We strongly caution against the use of

such tactics.

         {¶ 50} Looking at the totality of the circumstances, because the state failed to

demonstrate its attempts to secure the presence of A.D., by subpoena or other reasonable

means by a preponderance of the evidence, the court erred in concluding that appellant’s

actions caused A.D. to be absent from trial. Appellant’s first assignment of error is well-

taken.

                    B. Sufficiency and manifest weight of the evidence

         {¶ 51} In light of our disposition of appellant’s first assignment of error, we

review his second and third assignments of error excluding consideration of the evidence

wrongfully admitted at trial to determine whether the verdicts are supported. See State v.

Harris, 

, 

, 

. Appellant raises these

assignments of error specifically as to his convictions for rape and kidnapping.




20.
1. Sufficiency of the evidence

       {¶ 52} Sufficiency of the evidence is a question of law. State v. Thompkins, 

, 

 (1997). Under this standard of adequacy, a court

must consider whether the evidence was sufficient to support the conviction as a matter

of law. 

 The proper analysis is “‘whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.’” State v. Williams, 

, 

 (1996), quoting State v. Jenks, 

, 

 (1991), paragraph two of the syllabus.

       {¶ 53} Appellant was convicted of two counts of rape, R.C. 2907.02(A)(2) and

(B), which provides, in relevant part:

                (2) No person shall engage in sexual conduct with another when the

       offender purposely compels the other person to submit by force or threat of

       force.

                (B) Whoever violates this section is guilty of rape, a felony of the

       first degree.

       {¶ 54} Appellant was also convicted of kidnapping, R.C. 2905.01(A)(4) and (C),

which provides:

                (A) No person, by force, threat, or deception, or, in the case of a

       victim under the age of thirteen or mentally incompetent, by any means,




21.
       shall remove another from the place where the other person is found or

       restrain the liberty of the other person, for any of the following purposes:

              ***

              (4) To engage in sexual activity, as defined in section 2907.01 of the

       Revised Code, with the victim against the victim's will;

              ***

              (C)(1) Whoever violates this section is guilty of kidnapping. Except

       as otherwise provided in this division or division (C)(2) or (3) of this

       section, kidnapping is a felony of the first degree.

       {¶ 55} Evidence supporting the rape convictions is as follows. At trial, the

testimony of the SANE nurse began with a detailed recitation of her training and

qualifications. The nurse explained that the purpose of a history taken from a victim is to

guide the course of the physical examination. The history was written by the nurse and

typed into A.D.’s electronic medical records. The records were admitted into evidence

over defense counsel’s continuing hearsay objection.

       {¶ 56} The SANE nurse then read the history. A large portion of the narrative

detailed the physical injuries sustained by appellant and property damage leading up to

the sexual assault. Appellant does not dispute the felonious assault conviction on appeal.

As to the rapes, the nurse read:




22.
              [Y]ou got to suck my dick and make me feel better * * * he was

       trying to shove himself into my mouth. * * *. Then he was trying to force

       me to lay down and he said, after this I just want – or, I want some of that

       pussy. I said, no, because I’m on my period. He said I don’t care and he

       threw me against the couch and pulled my pants down.

       {¶ 57} We note that A.D.’s medical records were properly admitted under Evid.R.

702, and that statements made for the purpose of diagnosis and treatment may be

admissible under Evid.R. 803(4), which provides that statements are not hearsay when

“made for purposes of medical diagnosis or treatment and describ[e] medical history, or

past or present symptoms, pain, or sensations, or the inception or general character of the

cause or external source thereof insofar as reasonably pertinent to diagnosis or

treatment.” “For statements to be admissible under this exception, the declarant’s motive

must be consistent with that of a patient seeking treatment and it must be reasonable for

the medical provider to rely on the information in diagnosing and treating the declarant.”

State v. Holmes, 6th Dist. Lucas No. L-17-1111, 

, citing State v.

Ridley, 6th Dist. Lucas No. L-10-1314, 

, ¶ 49. We have previously

found that a description of the injuring event falls within the medical diagnosis or

treatment hearsay exception. Holmes at ¶ 77, citing Ridley at ¶ 52.

       {¶ 58} In addition, testimony from the BCI forensic scientist that appellant’s DNA

was found on the back panel of appellant’s underwear and on the swabs from her cheek.




23.
       {¶ 59} As to the kidnapping conviction, Detective Morrison noted his observation

that consistent with being dragged, appellant’s hair had been pulled out and was hanging

in knots. Further, during her SANE examination, A.D. detailed that she and appellant

moved from room to room with appellant physically assaulting her in each room. A.D.

stated that she was forced to sit in her bedroom while appellant poured a case of bottles

water on her, bottle by bottle. According to the SANE report and nurse testimony, the

events culminated in appellant forcibly removing A.D.’s clothing, shoving himself in her

mouth, and forcing her to lay down for the purpose of forced vaginal sex.

       {¶ 60} Based on the foregoing, we find that appellant’s rape and kidnapping

convictions were supported by sufficient evidence. Appellant’s second assignment of

error is not well-taken.

2. Manifest weight of the evidence

       {¶ 61} Appellant’s third assignment of error asserts that his convictions for rape

and kidnapping were against the manifest weight of the evidence. Unlike sufficiency of

the evidence, when reviewing a manifest weight claim,

              “[t]he court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must

       be reversed and a new trial ordered. The discretionary power to grant a




24.
       new trial should be exercised only in the exceptional case in which the

       evidence weighs heavily against the conviction.”

State v. Lang, 

, 

, 

, ¶ 220, quoting

Thompkins, 

, 

.

       {¶ 62} Reviewing all the admissible testimony and evidence presented at trial, we

cannot say that the jury lost its way in finding appellant guilty of two counts of rape. As

detailed above A.D., while being medically treated, stated that appellant forced his penis

in her mouth and in her vagina. DNA evidence supported these claims. Testimony

regarding A.D.’s affidavit recanting the rapes was also presented to the jury. As to

kidnapping, evidence was presented that A.D. had been dragged by her hair, had been

assaulted in various rooms in the apartment and was not allowed to leave, and was forced

to engage in oral and vaginal sex. Thus, we conclude that the rape and kidnapping

convictions were not against the manifest weight of the evidence. Appellant’s third

assignment of error is not well-taken.

                                      IV. Conclusion

       {¶ 63} Although we find that the trial court erred in finding that A.D. was

unavailable for trial and that her hearsay statements to law enforcement were admissible,




25.
the remaining, admissible evidence supported the jury’s verdict. Accordingly, we affirm

the February 7, 2022 judgment of the Lucas County Court of Common Pleas. Pursuant to

App.R. 24, costs are assessed to appellant.

                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Gene A. Zmuda, J.
                                               ____________________________
Myron C. Duhart, P.J.                                  JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




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