State v. Fouts

2016 Ohio 1104

STATE OF OHIO, Plaintiff-Appellee, v. DOUGLAS W. FOUTS, Defendant-Appellant.

Case No. 15CA25

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

March 16, 2016

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.

Harsha, J.

{¶1} After a jury convicted Douglas W. Fouts of gross sexual imposition and attempted unlawful sexual conduct with a minor, the trial court sentenced him to prison and Fouts filed this appeal.

{¶2} Fouts argues that the trial court erred in denying his motion to suppress statements he made to police. He claims the interview was a custodial interrogation that required a Miranda warning, which he did not receive. He also argues that his statements were involuntary because the police engaged in deceptive practices by minimizing the seriousness of his actions. However, the evidence at the suppression hearing reveals that Fouts's statements to police were both non-custodial and voluntary. The police told him that he was not under arrest and that he was not required to speak to them. There was no evidence of promises of leniency, misstatements of law, or types of deception or coercion by the police that would have overcome his will and forced him to make an involuntary confession.

{¶3} Fouts also contends that he was denied his constitutional rights to due process and compulsory process when as a discovery sanction, the trial court improperly applied Crim.R. 16(L) by preventing one of two surprise witnesses from testifying.¹ Accordingly, we must first determine whether the trial court erred under state law in applying the rule. The trial court did not impose the harshest discovery sanction available. After considering the circumstances, the trial court permitted one of Fouts's two surprise witnesses to testify, providing the defense counsel made the witness available to speak to the prosecutor at a lunch break during trial. The other surprise witness, Fouts's 15-year-old daughter, was excluded. Because Fouts failed to disclose her, failed to proffer her testimony, and there is nothing in the record that shows she had relevant, non-redundant testimony, the trial court properly exercised its discretion by excluding her. In the absence of a violation of the state evidentiary rule, our analysis ends because Fouts's constitutional argument is premised upon such a violation. Fouts also argues that the prosecutor's objection to the witness and refusal to interview her during a break at trial constituted prosecutorial misconduct that denied him a fair trial. However, this claim is also meritless because the prosecutor's objection to Fouts's two surprise witnesses is not "misconduct", rather it was in keeping with fair trial practice. The premise for his conclusion does not exist here either.

{¶4} Next Fouts argues that his trial counsel provided ineffective assistance by failing to supplement discovery with the names of two additional defense witnesses,giving a poor closing argument, and failing to request a lesser included offense jury instruction. Fouts's dissatisfaction with defense counsel concerns tactical decisions that do not rise to the level of ineffective assistance. Fouts also failed to show that there is a reasonable probability that but for counsel's actions, the result of the trial would have been different. Therefore, he failed to prove prejudice. And based upon the evidence at trial, he was not entitled to a lesser included offense jury instruction. The state presented uncontroverted evidence of force through the victim's testimony that Fouts held his arms around her, pulled her hair back, and pulled her shirt down. Fouts admitted he hugged his arms around her and moved her hair aside. He did not deny or contest the evidence that he pulled the victim's shirt down. Because Fouts offered no evidence to contest his use of force, and in fact admitted it, it was not reasonably possible for the jury to find him not guilty of the greater offense, but guilty of the lesser one. So, he was not entitled to jury instruction on the lesser included offense.

{¶5} Finally, Fouts asserts that the trial court erred when it failed to give a sua sponte jury instruction on the lesser included offense of "sexual imposition" and instead instructed only on "gross sexual imposition." However, as we determined, the facts did not warrant a lesser included offense instruction, so the trial court had no duty to give one.

{¶6} We affirm the judgment of the trial court.

I. FACTS

{¶7} The Washington County Grand Jury indicted Fouts on one count each of kidnapping, abduction, gross sexual imposition, and attempted unlawful sexual conduct with a minor, who was 15 years old. Fouts moved to suppress the statements he gave to police on the grounds that they were custodial but he was not given a Miranda warning, and they were involuntary due to police deception. After the trial court denied his motion, a jury found him not guilty of kidnapping and abduction, but guilty of gross sexual imposition and attempted unlawful sexual conduct with a minor.

{¶8} At trial the state presented the victim, who testified that her parents had recently separated and she was living with her mother who worked a midnight shift as a nurse. As a result she would frequently go to her friend's house to spend the night and go to school. Her friend was Fouts's daughter who was also 15 years old. The victim testified that she had this arrangement with the Fouts family since August or September 2013 and she was encouraged to use the terms "mom" and "dad" with the Foutses.

{¶9} The victim indicated that she contacted Mr. Fouts by phone and asked him if he and his daughter could pick her up so she could spend the night. She expected Fouts's daughter to be in vehicle when he arrived; however, his daughter was not there. Instead of driving her back to the Fouts home, Fouts told the victim that he was having a fight with his wife and did not want to return home yet. He drove the victim to a secluded, wooded area of a high school parking lot. The victim stated that Fouts was drinking beer and told her he wanted to listen to music. Fouts offered her a beer and a cigarette, which the victim refused. The victim stated that Fouts told her to stop calling him "dad" and began talking about his interest in pornography and sexual problems he was having with his wife.

{¶10} While she was in Fouts's vehicle, the victim texted Fouts's daughter and told her that Fouts had offered her beer and that they were in the high school parking lot. She texted that Fouts was getting angry that she was texting, and that she was scared because he was cleaning out the back seat of the vehicle. She testified that he took her phone away and told her she did not need to talk to anyone else because she was up there with him. The victim testified that at that point, she had no further ability to send a text message. The state introduced screen shots of the victim's and the daughter's text messages. The exhibit shows that for a period of about 15 minutes, the text messages stopped. The victim testified that after Fouts took her phone, he got out of the car, cleared out the back seat area, and went around to her side of the vehicle, got in, and asked if he could sit closer to the victim. But she moved, went over the center console, and sat in the driver's side.

{¶11} The victim testified that after Fouts got into the passenger seat, he pulled her over onto his lap, wrapped his arms around her body, and told her she was beautiful. She testified that Fouts moved her hair off her shoulder, pulled down her shirt and began kissing the back of her neck. The victim testified that she told him multiple times to stop and Fouts told her he could tell she was scared and he told her not to be afraid and that it felt good.

{¶12} When Fouts started driving out of the parking lot, the victim testified she was able to gain possession of her phone and she texted Fouts's daughter and told her what had happened. The screen shots from the victim's text messages showed that approximately fifteen minutes after her last text, the victim texted that Fouts had put her on his lap and kissed her neck and that he continued to do so even though she had asked him to stop.

{¶13} The victim testified that when she arrived at Fouts's house, she immediately told Fouts's two daughters what had happened. Fouts's daughters encouraged the victim to tell Fouts's wife. The victim agreed and texted the wife exactly what had occurred that evening. The state introduced screen shots of those text messages.

{¶14} The state also presented Officer Katherine Warden, who testified that after she spoke to the victim and her parents, she went to the Fouts residence in West Virginia to speak with him. Fouts eventually drove his own car to follow her to the police station in Marietta, Ohio. Officer Warden stated that Fouts's wife answered the door and was "very standoffish." The wife did not want to speak to the police and did not want them to come inside the house. Warden testified that at the station Fouts initially lied about taking the victim to the high school parking lot and kissing her. However, when he was told that the parking lot had video cameras and his car was shown on the camera, he changed his story and eventually admitted to driving the victim up there, telling her she was beautiful, hugging her, moving her hair aside and kissing her neck. The jury watched Fouts's 30-minute videotaped interview with Officer Warden.

{¶15} Mrs. Fouts testified for the defense but her testimony is not relevant to our task.

{¶16} After the jury returned a guilty verdict on the counts of gross sexual imposition and attempted unlawful sexual conduct with a minor, the trial court sentenced Fouts, who appealed.

II. ...