State v. Gillard

1

2023-Ohio-2682

STATE OF OHIO Plaintiff-Appellee v. MICHAEL T. GILLARD Defendant-Appellant

No. CT2022-0040

Court of Appeals of Ohio, Fifth District, Muskingum

August 2, 2023

Appeal from the Muskingum County Court of Common Pleas, Case No CR2022-0250

For Plaintiff-Appellee

RONALD L. WECH

Muskingum County Prosecutor

BY MICHAEL HUGHES

For Defendant-Appellant

SAMUEL H. SHAMANSKY

Hon W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant Michael T. Gillard ["Gillard"] appeals his convictions and sentences after a jury trial in the Muskingum County Court of Common Pleas.

Facts and Procedural History

{¶2} On June 5, 2020, Gillard and his girlfriend lived in Coolville, Ohio. However, when in Zanesville, Gillard would stay at his mother's house on Ridge Road. Gillard travelled to his mother's house after dropping his girlfriend off at her place of employment.

{¶3} On June 5, 2020, fourteen-year-old M.G. and her mother, J.G were residing with her maternal grandmother at a home located on Oakland Avenue. M.G. lived in the house with her grandparents, while J.G. lived in the detached garage. Gillard was an acquaintance of J.G. and had previously dated her older daughter A.G.

{¶4} M.G. testified that she went to the mall on the day in question with her friend L.P. and L.P.'s sister. After they returned to the Oakland Avenue residence, J.P. introduced M.G. to Gillard, who had arrived on his motorcycle while they were away. M.G. testified that she had never had any prior discussions or phone calls with Gillard and did not remember seeing him before. At some point after introducing Gillard to her daughter, J.G. testified that Gillard made a sexual comment about M.G. Gillard testified that J.G. asked him if he had any "meth." 10T. at 1323^[1]. J.G. testified that Gillard asked her if she wanted some "ice." 4T. at 523.

{¶5} M.G. testified that Gillard's motorcycle was parked down from "Timmy's" car in the driveway. 8T. at 1054. She testified that Gillard asked J.G. if he could take M.G. and L.P. shopping to get clothes for school. 8T. at 1055. Gillard then asked M.G. if she would like to go for a ride on his motorcycle. At first M.G. did not want to go; however, after teasing from L.P. and J.G. she acquiesced in what she thought was to be a short ride around the block. 8T. at 1057; 1150-1151. M.G. gave her cell phone to L.P. for safekeeping and left on the motorcycle with Gillard. 4T. at 631-633; 8T. at 1058.

{¶6} Instead of going around the nearby stadium, Gillard drove to his mother's house. 8T. at 1058. M.G. testified that Gillard entered the residence to grab a beer and a cigarette, and M.G. followed him into the house. They remained in the kitchen between five and ten minutes. They then moved onto the porch where M.G. attempted to perform a "beer trick" by removing the cap of a glass bottle using a knife. After that, M.G. and Gillard returned to the residence and sat on the couch in the living room, where they talked for another five to ten minutes. M.G. testified that Gillard then asked for a back rub. Gillard then removed M.G.'s tank top while fondling her breasts, eventually removing her bra as well. Gillard then began to try to remove M.G.'s pants. He was able to remove one of M.G.'s legs from her pants, as M.G. was shoving him away, eventually falling to the floor. 8T. at 1075. Once on the floor, Gillard "stuck his dick inside" of M.G.'s vagina. Id. at 1076; 1087. Gillard was moving back and forth. Id. at 1088. M.G. testified that Gillard forced his penis in her mouth after asking her to kiss it. Id. at 1090-1091. M.G. testified that Gillard's mouth also came in contact with her vagina. 8T. at 1085. She further testified that Gillard placed both his hands and mouth on her exposed breasts.

{¶7} M.G. attempted to scoot away while on her back on the floor, telling Gillard that she was only fourteen years old. As a result, M.G. received a rug burn on her back from the carpeting.

{¶8} M.G. testified that Gillard got dressed and acted as if nothing had happened. He asked M.G. if she wanted to drive his car back to her grandmother's house, which she did. On the way, Gillard was touching M.G.'s thigh. Gillard gave M.G. his black Cash App card and a gold bracelet, which, at the time M.G. mistook for a watch. Gillard told M.G. he would put money on the card, if she did not tell anyone what had happened. 8T. at 1096-1097.

{¶9} After returning to her grandparent's residence, M.G. testified that she ran straight to her bedroom. In her bedroom she showed L.P. the rug burn, the black Cash App card and the bracelet. M.G. was crying, shaking and visibly distressed. L.P. testified that M.G. told her that she received the rug burn while trying to get away, but Gillard dragged her across the carpet. 4T. at 616. M.G. testified that she did not tell L.P. how she sustained the rug burn. 8T. at 1133.

{¶10} J.G. testified that she asked the girls to go to a nearby dollar store with her and they agreed to go. J.G. went inside the store and the girls remained in the car. A friend came into the store to ask what was wrong with M.G., prompting J.G. to immediately leave and return to the car. 4T. at 530. L.P. told M.G. if she did not say something to her mother then she, L.P. would. M.G. told her mother that Gillard had "hurt her." Enraged, J.P. "flew down the road" to confront Gillard. En route, she called 9-1-1.

Gillard's arrest and interview

{¶11} Deputy Graham Schaumleffel formerly of the Muskingum County Sheriffs Office testified that on June 5, 2022, he was flagged down by a woman, later identified as J. G., in a car who told him that she had called 9-1 -1. 3T. at 390^[2]. This encounter was only a couple hundred feet from J.G.'s home. Deputy Schaumleffel interviewed J.G. at her home, where she gave him the black Cash App card and bracelet that M.G. had given to her. Id. at 395. The lights to the deputy's sheriffs cruiser remained flashing during this time. Id. at 401. M.G. and her mother pointed to Gillard as they saw his motorcycle stop at the top of a nearby hill. Id. at 402-403. A.G. got off of the back of the motorcycle and ran down the hill to the home. Id. The motorcycle took off. Deputy Hamilton made the initial stop with Deputy Schaumleffel arriving shortly thereafter. 4T. at 405.

{¶12} Deputy Brandon Hamilton testified that he initiated a traffic stop of Gillard. 3T. at 473. Gillard volunteered to Deputy Hamilton that he, Gillard, had crazy sex with A.G. and that they each urinated on each other. Id. at 477. Deputy Hamilton collected DNA samples from Gillard's finger's and penis at the sheriff's office.

{¶13} Detective Brad Shawger obtained a waiver from Gillard of his Miranda rights. 6T. at 796-797. State's Exhibit 58. The interview was recorded and played for the jury. Id. at 799-800. State's Exhibit 41. Gillard went into detail about his sexual relations with A.G. Id. at 818. Gillard told the detective that A.G. had taken his black Cash App card. Id. at 821. Gillard claimed the only person that he had sex with was A.G. Id. at 823. Gillard claimed M.G. had never been to his mother's home and that he had never had sex with her. Id. at 812- 813. Detective Shawger testified that he interviewed A.G. and that she denied having sex with Gillard on June 5, 2020. Id. at 803. A.G.'s blue and white underwear was found on the living room couch during a consensual search of Gillard's mother's home.

{¶14} A.G. testified that she did not have sex with Gillard on June 5, 2020. 9T. at 1242. She further testified that her blue and white underwear were not left there on that day, but from another time. Id. at 1243-44. She testified that she got off of Gillard's motorcycle at the top of the hill because they could see the police were at the home of her mother. Id. at 1253. She testified that the motorcycle did not break down when she was with Gillard. Id. at 1259.

Forensic interview

{¶15} M.G. was taken to Nationwide Children's Hospital in Columbus. Jamie Casto, a forensic interviewer interviewed M.G. The video of the interview was played for the jury without objection. State's Exhibit 49. 5T. at 667-668. M.G.'s account of the events was similar to her testimony at trial. 5T. at 674-679. The only difference being that M.G. told Ms. Casto that she had not seen Gillard in three years and that Gillard was a friend of her deceased step-father.

{¶16} Logan Stover, the Sexual Abuse Nurse Examiner (S.A.N.E.) testified that she found nothing abnormal, even with the colposcope observation, in her examination of M.G. 5T. at 729. She observed no abrasions, redness, bruising or swelling in the vagina of M.G. Id. at 732. M.G. told Ms. Stover that Gillard had put his fingers and his penis inside her vagina. 5T. at 730. Pictures of the abrasion on M.G.'s back were admitted into evidence. State's Exhibit 53; 54. 5T. at 714.

Gillard testifies at trial

{¶17} Gillard testified that, while he was socializing at J.G.'s house, he smoked some "meth" with T. Y. who was at the home. 10T. at 1321 -1322. In his words, he "[d]id a couple hits on a bubble." Id. J.G. asked Gillard if he had any meth, to which he responded no. Id. at 1323. M.G. and L.P. walked out at this time. M.G. commented on how she liked his motorcycle and asked to be taken on a ride. 10T. at 1324. He agreed. Gillard specifically denied offering to take M.G. shopping for clothes. He testified that, after J.G. remarked that M.G. needed clothing for school, Gillard responded, "I [have] my own kids to take care of." Id.

{¶18} While taking M.G. for a ride, Gillard noticed that his motorcycle was "stalling out." 10T. at 1308, 1325. As such, he drove to his mother's residence to exchange the motorcycle...