State v. King, 2010 Ohio 290 (Ohio App. 1/29/2010), L-08-1126.

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2010 Ohio 290

State of Ohio, Appellee, v. Vincent D. King, Appellant.

Court of Appeals No. L-08-1126.

Trial Court No. CR07-1400.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: January 29, 2010.

Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, for appellee.

Stephen D. Long, for appellant.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas which sentenced defendant-appellant, Vincent D. King, to a total incarceration time of life plus five years after a jury found him guilty of one count of gross sexual imposition and one count of rape. Appellant now challenges that judgment through the following assignments of error¹:

{¶ 2} "1. Appellant was denied his right to counsel as guaranteed by the Sixth Amendment due to ineffective assistance of counsel.

{¶ 3} "2. The trial court erred by not declaring a mistrial of the proceedings and by not conducting the voir direct [sic] of the remaining jurors at the request of counsel, thereby denying appellant the right to due process, equal protection of the law and the right to a fair trial by an impartial jury.

{¶ 4} "3. The trial court erred by overruling appellant's motion for a new trial, filed pursuant to Crim.R. 33 and grounded upon the misconduct of a juror and the failure of the trial court to divulge its knowledge of the misconduct on the first day of trial.

{¶ 5} "4. The trial court erred in sentencing Mr. King separately for the crimes rape and gross sexual imposition herein as they are allied offenses of similar import as contemplated under R.C. 2941.25(A), and as no separate animus existed for the commission of each of the crimes.

{¶ 6} "5. There was insufficient evidence for the jury to find Mr. King guilty of gross sexual imposition and the convictions [sic] for the charge of gross sexual imposition was against the manifest weight of the evidence."

{¶ 7} On February 23, 2007, appellant was indicted and charged with one count of gross sexual imposition of a person less than 13 years of age in violation of R.C. 2907.05(A)(4) and (B), a third degree felony, and one count of rape of a person less than ten years of age in violation of R.C. 2907.02(A)(1)(b) and (B), a first degree felony. The indictment was filed as a result of the events of December 23, 2006, which were testified to at the trial below as follows.

{¶ 8} The victim in this case, I.D, was seven years old at the time of the offenses. On December 23, 2006, I.D. was visiting the home of her great aunt (appellant's mother) while her mother and great uncle went Christmas shopping. Appellant, who at that time was 33 years old, is the first cousin of I.D.'s mother. At some point during the evening, appellant's mother was watching a television program on the first floor of the home that I.D. did not want to watch. I.D. then went upstairs to watch television in appellant's bedroom. Appellant has two televisions in his bedroom and was playing a videogame on one of the sets when I.D. came in to watch the Disney Channel on the other set. I.D. testified that she lay down on appellant's bed to watch a show and that she fell asleep. I.D. stated that when she awoke, her pants and underwear had been pulled down to her ankles and appellant was sitting on the bed next to her. I.D. testified that she felt appellant touch her bottom but she could not be sure with what because he was behind her. She then testified that appellant put two fingers in her "middle part" between her legs and that it hurt. She asked appellant to stop, which he did, but that he again touched her bottom with something she could not identify. I.D. then stated that appellant put his mouth on her neck. After appellant stopped, I.D. went to use the bathroom but stated that it hurt too much to urinate. She then went downstairs where her mother picked her up a short time later, at approximately 11:00 p.m.

{¶ 9} When I.D. got in the car she told her mother, Angela D., that she needed to tell her something. She was very upset and crying but eventually told her mother what appellant had done. Angela testified that she pulled the car over and got in the back seat with I.D. to comfort her because she was hysterical. Angela then took I.D. to the hospital where she was evaluated for sexual assault.

{¶ 10} Rossana McNeil, a sexual assault nurse examiner at St. Vincent's Mercy Medical Center, evaluated I.D. and testified at the trial below. McNeil took an assault history of I.D., conducted a physical exam of her, and collected evidence using a rape kit. The physical exam included an examination of I.D.'s vaginal area which, upon visual inspection, appeared very red. In particular, McNeil stated that there were flat red circles, or petechiae, on the area to the right of I.D.'s vaginal vault. Petechiae, she stated, are caused by bleeding in the capillaries underneath the surface of the skin and can be caused by blunt force trauma.

{¶ 11} The Toledo Police Department was notified of the possible sexual assault and Officers Connie Lepla and John Newman went to the hospital to investigate. Lepla testified that after interviewing I.D., she collected the rape kit, returned it to the police station and logged it into the evidence room. The rape kit was subsequently processed but revealed no scientific evidence implicating appellant.

{¶ 12} Several days later, Detective Ron Permar, an investigator in the special victims unit of the Toledo Police Department, interviewed I.D. about the assault. Through the use of anatomical drawings and the feeling faces tool, I.D. described to Permar what happened to her and identified her assailant. Thereafter, appellant was brought to the Toledo Police Department where Permar questioned him about I.D.'s allegations. Appellant denied that he sexually assaulted I.D. and only admitted to wrestling with her when she tried to remove money from his pockets. Permar's interview of appellant was videotaped and the video was played for the jury at the trial below.

{¶ 13} In addition to the state's witnesses, appellant testified in his own defense, denying the allegations in the indictment.

{¶ 14} At the conclusion of the trial, after the parties rested, and outside the hearing of the jury, the court notified counsel as follows:

{¶ 15} "By the way, it's my understanding the court reporter informs me that during the testimony of the defendant at one point in his testimony Juror Number 1 made a statement, I heard a statement, I didn't hear exactly what the words were. The reporter she believes that she heard Juror Number 1 say liar, and there was another point in the trial where you heard her say during other testimony make a statement which I didn't hear, but what was it, and you put it in the record."

{¶ 16} There was then a discussion held off of the record and the court then recessed for a short time. While in recess, the court held an on-the-record discussion with the parties and informed them as follows:

{¶ 17} "The court reporter just stated to counsel that during the cross-examination of the victim by counsel for the defendant that at one point the court reporter heard and put in the record at the appropriate place the Juror Number 1, the same juror, make a statement to the affect that she's just a kid."

{¶ 18} In light of the revelation that Juror Number 1 made the two statements during the trial, appellant's counsel requested that the court conduct a voir dire of that juror to determine if she made the remarks and if she had already made up her mind as to whether appellant was guilty or not guilty of the crimes. The court granted the request and questioned Juror Number 1 about her comments. She admitted that she had made the statements and apologized. Although she stated that she had not yet formed an opinion as to appellant's guilt, the court ordered Juror Number 1 removed from the jury and seated alternate Juror Number 1 in her place. The parties then proceeded to closing arguments and the court charged the jury. After the jury returned with guilty verdicts on both counts, appellant's trial counsel made an oral request for the court to individually voir dire the jurors to determine if they had heard the comments of the original Juror Number 1 and, if so, what effect, if any, they may have had upon the jurors. Appellant's trial counsel noted that he would be filing a motion for a new trial based on possible juror misconduct and believed it would be economical to conduct the voir dire at that time. The court denied the request.

{¶ 19} Subsequently, and prior to sentencing, appellant filed a motion for a new trial on the ground of juror misconduct. Appellant requested that the court order all of the jurors be summoned into court to be questioned about the effect of the comments of Juror Number 1 on their determination of the guilt or innocence of appellant, whether the comments were discussed during deliberations, and what effect the removal of Juror Number 1 had upon their deliberations. The state agreed with appellant's request for a hearing on the motion for a new trial. The case proceeded to a hearing at which all of the jurors were individually asked whether they had heard Juror Number 1's comment during the cross-examination of the victim; whether they had heard Juror Number 1's comment during appellant's direct examination; whether each juror had any discussions with Juror Number 1 about the case before she was dismissed; whether Juror Number 1's comments were ever discussed among the jurors during their deliberations in the case; and whether Juror Number 1's comments had any effect on the each juror's verdict in the case. Four of the jurors stated that they had heard Juror Number 1's comment during the victim's testimony and nine of the jurors stated that they heard Juror Number 1 call appellant a liar during his testimony. None of the jurors, however, stated that they had discussed the...