State v. Muller, CASE NO. 4-11-09

2012 Ohio 3530

STATE OF OHIO, PLAINTIFF-APPELLEE,

v.KYLE A. MULLER, DEFENDANT-APPELLANT.

CASE NO. 4-11-09

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

Dated: August 6, 2012

OPINION

Appeal from Defiance County Common Pleas Court

Trial Court No. 10 CR 10745

Judgment Affirmed

APPEARANCES:

Clayton J. Crates for Appellant

Morris J. Murray and Russell R. Herman for Appellee

ROGERS, J.

{¶1} Defendant-Appellant, Kyle Muller ("Muller") appeals the judgment of the Court of Common Pleas of Defiance County, convicting him of three counts of sexual battery and one count of rape and imposing a seventeen-year prison term. On appeal, Muller asserts that the trial court abused its discretion by denying his motion for relief from prejudicial joinder and refusing to sever the complaining witnesses for separate trials; that the trial court abused its discretion by admitting testimony of other acts evidence regarding a similar sexual encounter involving Muller in Michigan; that the trial court erred in denying Muller's motion for acquittal of the four rape charges as there was insufficient evidence to establish the element of force; that the trial court erred by prohibiting Muller from introducing opinion evidence of two complaining witnesses' untruthfulness; that Muller's conviction for sexual battery in Count Seven was against the manifest weight of the evidence; and, that the trial court erred by denying Muller's motion for judgments notwithstanding the verdicts as insufficient evidence was presented that Muller was not the spouse of any of the complaining witnesses. For the following reasons, we affirm the judgment of the trial court.

{¶2} On February 19, 2010, the Defiance County Grand Jury indicted Muller on nine counts: four counts of rape in violation of R.C. 2907.02(A)(2), felonies of the first degree, four counts of sexual battery in violation of R.C.2907.03(A)(2), felonies of the third degree, and one count of sexual battery in violation of R.C. 2907.03(A)(1), a felony of the third degree. The indictment followed an investigation conducted on Defiance College campus due to five alleged victims reporting allegations of improper sexual conduct by Muller. On September 9, 2010, Muller entered pleas of not guilty to all charges.

{¶3} On December 30, 2010, the State filed a motion in limine requesting the preclusion of any statements concerning the prior or current sexual activity of the complaining witnesses in accordance with R.C. 2907.02(D). On January 12, 2011, defense counsel filed two motions: the first, a motion for relief from prejudicial joinder, requesting separate trials as to each complaining witness, and the second, a motion in limine requesting the trial court to prohibit the State from introducing evidence or making references to Muller's conviction in Michigan on April 29, 2010 for similar charges. Trial commenced February 28, 2011.¹

{¶4} The following evidence was adduced at trial. For the State's case-in-chief, it first presented Kenneth Wetstein ("Wetstein"), the Vice President for Student Engagement at Defiance College. Wetstein explained that Muller was astudent at Defiance College from August 2008 until November 2009. In the spring of 2009, Wetstein received a complaint in the form of a communication information form ("CIF") from two female students, who wished to remain anonymous, reporting that Muller behaved in an inappropriate sexual manner towards them. In response to the CIF, Wetstein arranged a meeting with Muller to discuss the allegations, during which he warned Muller about his behavior towards women when alcohol is involved.

{¶5} In August 2009 a coach reported to Wetstein that a woman had disclosed a sexual assault to him, reporting that Muller was the alleged perpetrator and M.A. was the alleged victim. Wetstein explained that in October 2009 M.A. submitted a formal complaint, describing the allegation that Muller had sexually assaulted her. Upon receiving M.A.'s formal complaint, he met with Muller and suspended him for ten days. During the suspension period, another alleged victim, A.K., submitted a formal complaint against Muller. A formal hearing was held in front of the College Judicial Committee, after which it determined that Muller was responsible for violating the Student Code of Conduct and recommended to Wetstein that Muller be expelled. Wetstein implemented the sanction and expelled Muller.Testimony regarding M.A.'s Allegations²

{¶6} M.A. testified that she is a student and a soccer player at Defiance College. She testified that in August 2009 she arrived on campus for pre-season football camp, as was required of all students majoring in athletic training. She described her duties as an athletic trainer as attending all practices, taping the players, filling up the whirlpool, watching practice in case of injury, administering first aid and ultrasounds, and delivering ice. "Ice duty" requires that the athletic trainer deliver ice to the football players in the lobby of their dorms before they go to bed. She testified that the athletic trainers are prohibited from associating with the players during the entirety of football camp and from going into the "pods."³

{¶7} M.A. was acquainted with Muller as he was a member of the football team and because Defiance College is a small campus and "everyone pretty much knows everyone." Trial Tr., p. 172. On August 16, 2009, she was on "ice duty" and delivered ice to Muller. M.A. testified that she went into Muller's "pod," into the living room of his dorm, and watched TV with him. She explained that she sat on the futon and he sat next to her, and laid his head on her leg. He then tried toreach his hand down her pants and touch her buttocks. She testified, "I was like what are you doing; like I didn't come over here for that; I'm just watching this; like what are you doing; and then he like pulled his hand out; and then like shortly after, he stuck his hand back up the front this time." Trial Tr., p. 181. She then explained that after the second attempt to put his hand up her shorts, "I kind of like didn't seriously ask, I said what are you doing; like I didn't come over here for that; I just came over here to deliver you ice; like what are you doing; and then he stopped again." Id. at p. 182.

{¶8} M.A. said they resumed talking and that he wanted to show her a video on his computer of his brother. In order to watch the video, she moved to a recliner closer to the computer. Before she moved to the recliner, she texted her friend, Kelsey Ferguson ("Kelsey), to get Kelsey to call her and give her an excuse to leave. M.A. texted her several times, but she didn't respond. M.A. moved over to the recliner to watch the video, and while the video was loading, Muller "was in front of me and he put his hands up my shorts and put his fingers in me and then he transitioned and put himself inside me as I was sitting there." Id. at p. 183.

{¶9} She testified that after he was finished, she kissed Muller on the mouth, they watched the video on his computer, she moved back to the futon to check her phone, and then left. She testified that she ran to Kelsey's room, but Kelsey did not answer the door because she was asleep. M.A. told Kelsey aboutthe incident the next day, reported it to another athletic trainer and to her assistant soccer coach, but did not report it to the police or her parents until months later when she found out about the other girls.

Testimony regarding H.D.'s Allegations⁴

{¶10} H.D. testified that she recently graduated from Defiance College where she played soccer. In 2008, H.D. met Muller at a dance. In February 2009, H.D. went to a party at the "football house" (Trial Tr., p. 224) to celebrate a basketball victory and became severely intoxicated. Ashton Judis and Muller walked H.D. back to her dorm room, left, and later Muller came back because she was getting sick. When Muller came back to help her, she "passed out." Id. at p. 227. When she woke up, Muller was having sex with her. She asked him what he was doing and then passed out again. Muller left the next morning.

{¶11} H.D. also testified that a few months prior to this incident, she had sexual contact with Muller when she was sober. H.D. testified that she and Muller had discussed having sex prior to this incident, and H.D. repeatedly told him that she did not want to have sex with him. H.D. stated that she did not tell anyoneabout the incident because she was embarrassed and ashamed and felt that she let it happen.

{¶12} On cross-examination, H.D. testified that after Muller and Ashton dropped her off at her dorm room that night, she sent Muller a text message, but she could not remember what she said in the text or Muller's response.

Testimony Regarding K.B.'s Allegations⁵

{¶13} K.B. testified that she was enrolled as a student at Defiance College during the 2009-2010 academic year. She met Muller on August 28, 2009 at a school dance. On August 29, 2009, after attending a party where she had consumed alcohol, K.B. went to Kyle Keegan's dorm room, where several of her friends had arranged to stay the night. K.B.'s roommate, Kaye Bockbrader ("Kaye"), Kyle Keegan ("Kyle"), and Khalil Hazime ("Khalil"), were also in the dorm room. Kaye and Kyle were on the bunk bed, which had been made into a lofted bed, and K.B. and Khalil were on the futon located underneath the bunk bed. A few minutes after they went to bed, several people came into the room, including Muller. K.B. testified that she had feelings for Khalil, but that after Muller came into the room, Khalil left, and Muller kissed her, pushed her downonto the bed, bent her wrist back, laid on top of her, undid her pants, and raped her.

{¶14} A few minutes later Khalil walked back into the room and "caught both of [them] a little bit off guard." Id. at p. 275. K.B. was then able to push Muller off of her, pull up her shorts, and stand up. Khalil said to Muller, "you owe me." Id. K.B. testified that she was...