[Cite as State v. Thomas, 2015-Ohio-5247.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27580
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DEANDRA J. THOMAS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014 02 0569 (B)
DECISION AND JOURNAL ENTRY
Dated: December 16, 2015
SCHAFER, Judge.
{¶1} Defendant-Appellant, Deandra Thomas, appeals the judgment of the Summit
County Court of Common Pleas convicting him on two counts of rape and one count of felonious
assault and sentencing him to a total prison term of 13 years. For the reasons that follow, we
affirm the trial court’s judgment.
I.
{¶2} Thomas was indicted on the following charges: (1) two counts of rape in violation
of R.C. 2907.02(A)(2), a felony of the first degree; (2) one count of felonious assault in violation
of R.C. 2903.11(A)(2), a felony of the second degree; and (3) one count of kidnapping in
violation of R.C. 2905.01(A)(4), a felony of the first degree. The indictment arose from an
incident in which Thomas allegedly punched a female victim, S.M., and forced her to have
vaginal intercourse and perform fellatio on him without her consent and caused serious physical
harm to her. The day after the incident, S.M. went to Barberton Citizens Hospital where she
2
presented with the following injuries: multiple bruises and scratches, a burn on her left shoulder,
a swollen right eye, bleeding in the white of her left eye, and a chipped tooth. These injuries did
not require surgery or hospitalization, but she was given pain medication and antibiotics to
prevent the development of sexually transmitted diseases. After receiving treatment for her
injuries, S.M. was transported to St. Thomas Hospital, where she underwent a sexual assault
medical examination that was administered by Nurse Valorie Prulhiere.
{¶3} During the examination, several DNA samples were removed from S.M.’s body
and turned over to the Ohio Bureau of Criminal Investigation for further testing. She explained
to Nurse Prulhiere that she was romantically involved with Michael Person. The day before the
examination, she went to Person’s house, where a group of people were gathering to drink
alcohol and socialize. S.M. stated that after the other guests left, Person began to assault her by
beating her, cutting her with a knife, and burning her arm with a cigarette. S.M. also said that
during the assault by Person, another person named “Dread” arrived, who forced her to perform
fellatio on him and have vaginal intercourse without her consent. S.M. further indicated that
“Dread” punched her right eye with a closed fist. This person left shortly afterwards and Person
continued his assault, which included engaging in sexual conduct with S.M. without her consent.
{¶4} Detective Stephen Coburn of the Barberton Police Department conducted a
follow-up investigation during which he discovered that “Dread” was Thomas. He subsequently
interviewed Thomas, who admitted to being at Person’s house the night of the alleged rape and
assault for the purpose of buying drugs from Person. Thomas also admitted to having oral and
vaginal intercourse with S.M., but he claimed to have only done it because Person demanded that
he do it and he was fearful of Person. Further, BCI tested the DNA samples taken from S.M.’s
body and the sample from her right breast matched Thomas’s DNA.
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{¶5} This matter proceeded to a jury trial after which the jury found Thomas guilty of
both rape counts and the felonious assault count. It found him not guilty of kidnapping. The
trial court subsequently sentenced him to 13 years in prison. Thomas filed this timely appeal,
presenting four assignments of error for our review.
II.
Assignment of Error I
The introduction of highly prejudicial character evidence violated Thomas’s
due process rights under the 14th Amendment and his rights to due process
and fair trial under the 6th Amendment and the Ohio Constitution, meriting
reversal and a new trial.
{¶6} In his first assignment of error, Thomas advances two arguments. First, he
contends that the trial court erred by admitting improper character evidence under Evid.R.
404(B). He specifically challenges the admission of his statements during the police interview
indicating that he went to Person’s house for the purpose of purchasing drugs. Since Thomas has
failed to properly preserve this issue for appellate review, we disagree. Second, Thomas asserts
that the trial court plainly erred by failing to issue a limiting instruction regarding the proper use
of this evidence. We also disagree on this point.
A. Admissibility of Thomas’s Statements
{¶7} Evid.R. 103(A)(1) requires that a party seeking to exclude evidence state “a
timely objection or motion to strike * * * [that includes] the specific ground for objection, if the
specific ground was not apparent from the context[.]” Before trial commenced, Thomas’s trial
counsel stated his “concern” about the video recording of his confession since there are
“different points [in which] Mr. Thomas makes an admission that his purpose for going to the
house was to buy drugs, I believe specifically cocaine.” He went on to state, “I know how the
prosecution feels that it’s relevant, * * * [but] to protect the record, I would object.” When the
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State played the video recording of the confession, Thomas’s trial counsel did not state an
objection on the record. However, when the State offered the video recording into evidence,
Thomas’s trial counsel stated, “I’ll renew my objections as we did earlier about the whole buying
drugs thing, which we didn’t eliminate [from the recording], and the Court allowed it to come
in.”
{¶8} It is clear from these statements that Thomas never objected to the evidence of his
statements regarding drug use on the basis of impermissible character evidence. Rather, the only
basis for his objection to this evidence was lack of relevance. Consequently, he has not properly
preserved the Evid.R. 404(B) issue. See State v. Williams, 9th Dist. Summit No. 22877, 2006-
Ohio-4720, ¶ 17-18 (determining that the defendant forfeited evidentiary issue since the specific
ground for the objection asserted in the trial court was different from the one asserted on appeal).
Instead, he has forfeited all but plain error in regard to this issue. See State v. Tibbetts, 92 Ohio
St.3d 146, 161 (2001) (“Because he failed to object at trial on the specific ground raised here,
[the defendant] has forfeited the issue, limiting us to a plain error analysis [of the defendant’s
Evid.R. 404(B) argument].”).
{¶9} Although Thomas has preserved plain error review in regard to the Evid.R.
404(B) issue, he has failed to argue the existence of plain error in the admission of this evidence
on appeal. This Court has repeatedly noted that it will not sua sponte fashion an unraised plain
error argument and then address it. E.g., State v. McCrae, 9th Dist. Summit No. 27387, 2015-
Ohio-1803, ¶ 8 (collecting cases). As a result, we will not consider whether Thomas’s
statements regarding his purpose for going to Person’s house were properly admitted under
Evid.R. 404(B). See State v. Ellis, 9th Dist. Summit No. 27013, 2014-Ohio-4186, ¶ 27 (“[A]s
[the defendant] has failed to argue plain error on appeal, this Court will not consider whether the
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admission of the disputed evidence within the context of Evid.R. 404(B) constituted plain
error.”).
B. Limiting Instruction Regarding Thomas’s Statements
{¶10} Thomas did not request a limiting instruction for the use of his statements about
purchasing drugs, so he has forfeited all but plain error on this point. State v. Clay, 9th Dist.
Summit No. 27015, 2014-Ohio-3806, ¶ 61, citing State v. Risden, 2d Dist. Montgomery No.
22930, 2010-Ohio-991, ¶ 137. The plain error doctrine, as it is outlined in Crim.R. 52(B), may
only be invoked where the following three elements apply:
First, there must be an error, i.e., a deviation from the legal rule. * * * Second,
the error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an
error must be an “obvious” defect in the trial proceedings. * * * Third, the error
must have affected “substantial rights” * * * [and] affected the outcome of trial.
(Citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27 (2002). We are cautioned that plain
error “is to be taken with the utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph
three of the syllabus.
{¶11} We cannot determine that the trial court’s failure to issue a limiting instruction
regarding Thomas’s statements affected the outcome of trial. Thomas argues that these
statements can only be taken to establish Thomas’s propensity to purchase drugs and thus
required a limiting instruction. But, even if this argument is accepted, such a propensity is
immaterial here since it does not indicate whether Thomas was more likely to commit the
charged offenses of rape and felonious assault. Moreover, the record does not reflect that the
jury used these statements to convict Thomas simply because he may have been depicted as a
person of poor character. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 91
(“Nothing suggests that the jury used ‘other acts’ evidence to convict [the defendant] because he
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was a bad person. Accordingly, the trial court’s failure to give limiting instructions did not
constitute plain error.”), citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 162. Indeed,
Thomas’s statements appear to bolster his defense that he did not go to Person’s house on the
night of the incident to rape and assault S.M. As a result, we are unable to conclude that the trial
court committed plain error by not issuing a limiting instruction regarding Thomas’s statements.
{¶12} Accordingly, we overrule Thomas’s first assignment of error.
Assignment of Error II
The trial court created reversible error by permitting the nurse who
completed the sexual assault examination to provide testimonial statements
made by the alleged victim when the defendant did not have a previous
opportunity for cross examination of the alleged victim.
{¶13} In his second assignment of error, Thomas contends that Nurse Prulhiere’s
testimony regarding S.M.’s statements during the sexual assault medical examination was
inadmissible as violative of his right to confront witnesses. We disagree.1
{¶14} We review the trial court’s admission of evidence over a Confrontation Clause
objection de novo. State v. McNair, 9th Dist. Lorain No. 13CA010485, 2015-Ohio-2980, ¶ 36.
The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the
witnesses against him.” Sixth Amendment to the United States Constitution. The Ohio
Constitution also provides criminal defendants with the right to confront witnesses in Article I,
Section 10. Toledo v. Sails, 180 Ohio App.3d 56, 2008-Ohio-6400, ¶ 12 (6th Dist.). The import
of these protections is that they “require[], wherever possible, testimony and cross-examination
1
The State argues that Thomas failed to properly preserve this issue for appellate review.
However, Thomas’s trial counsel contemporaneously objected to Nurse Prulhiere’s testimony
regarding S.M.’s statements on the basis that they were “no longer for medical treatment
purposes * * * but rather [for] evidence collection [purposes], which takes it into a testimonial
situation where there’s confrontation issues[.]” As a result, we conclude that this issue has not
been forfeited on appeal.
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to occur at trial.” State v. Myers, 9th Dist. Summit No. 25737, 2012-Ohio-1820, ¶ 21, citing
State v. Allen, 8th Dist. Cuyahoga No. 82556, 2004-Ohio-3111, ¶ 17.
{¶15} The Confrontation Clause’s protections are only invoked to bar the admission of
out-of-court statements that are “testimonial.” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-
5267, ¶ 59. An out-of-court statement is testimonial, for Confrontation Clause purposes, “where
it was given with the ‘“primary purpose of creating an out-of-court substitute for trial
testimony.”’” McNair at ¶ 38, quoting Ohio v. Clark, __ U.S. __, 135 S.Ct. 2173, 2183 (2015),
quoting Michigan v. Bryant, 562 U.S. 344, 351 (2011). Moreover, the United States Supreme
Court has limited the Clause’s breadth as “bar[ring] ‘admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testimony, and the defendant
had a prior opportunity for cross-examination.’” (Emphasis added.) Davis v. Washington, 547
U.S. 813, 821 (2006), quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
Accordingly, “‘[w]hen the declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of his prior testimonial statements. * * * The Clause
does not bar admission of a statement so long as the declarant is present at trial to defend or
explain it.’” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 127, quoting Crawford at
59, fn. 9, citing California v. Green, 399 U.S. 149, 162 (1970).
{¶16} We have consistently determined that a rape victim’s out-of-court statements to a
nurse conducting a sexual assault medical examination are non-testimonial. E.g., State v.
Dickens, 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25 (“[T]his Court has rejected
similar arguments [regarding the testimonial nature of rape victims’ statements to nurses].”);
State v. Stahl, 9th Dist. Summit No. 22261, 2005-Ohio-1137, ¶ 21 (“Based on our review of the
statements, the circumstances, and the case as a whole, we find that these statements were made
8
for the purpose of medical diagnosis and treatment and were not testimonial as to necessitate a
finding that this victim must have expected that they would have be available for later use at
trial.”), aff’d, 111 Ohio St.3d 186, 2006-Ohio-5482. Thomas attempts to distinguish Stahl on the
grounds that (1) S.M. made her statements to police before the examination while she was at
Barberton Hospital, not a police station; (2) Nurse Prulhiere told her that she was required to
report her “knowledge of reported sexual assaults” to police; and (3) Detective Coburn told S.M.
that he would follow-up with her at St. Thomas after the examination. According to Thomas,
these circumstances would suggest to an objective witness that statements to Nurse Prulhiere
would be used for evidence collection.
{¶17} We conclude that these circumstances are insufficient to distinguish this matter
from Stahl. Thomas has provided no authority to support his propositions that the location of a
victim’s initial discussion with police and the police’s promise of a follow-up after a medical
examination indicate to a victim that her statements during the medical examination are part of
evidence collection. See App.R. 16(A)(7). Additionally, Nurse Prulhiere’s disclosure to S.M.
that she reports to police regarding sexual assaults is similar to the disclosures provided by the
hospital in Stahl, which supports applying our precedent as opposed to distinguishing it. See
Stahl at ¶ 20 (discussing St. Thomas’s consent form for the sexual assault medical examination
process and determining that the victim’s statements after signing the form were non-
testimonial).
{¶18} Finally, even if the circumstances in this matter were such that Stahl and its
progeny were distinguishable, there would still be no Confrontation Clause problem here. S.M.
testified at trial and was subject to cross-examination, which precludes this Court from finding
that Thomas’s confrontation rights were violated. See State v. Just, 9th Dist. Wayne No.
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12CA0002, 2012-Ohio-4094, ¶ 24 (holding that there was no Confrontation Clause violation
since declarants “appeared at trial and testified”), citing State v. Simmons, 9th Dist. Summit No.
25275, 2011-Ohio-916, ¶ 9-10 (same). Thomas argues that there was nevertheless a
Confrontation Clause violation because S.M. was cross-examined after Nurse Prulhiere’s
testimony. But, the fact that S.M., the declarant, testified after Nurse Prulhiere’s testimony about
S.M.’s out-of-court statements is immaterial to our Confrontation Clause analysis. See State v.
Keenan, 81 Ohio St.3d 133, 142 (1998) (determining that there was no Confrontation Clause
violation where police detective testified to declarant’s out-of-court statement before the
declarant testified); accord Johnson v. Lockhart, 71 F.3d 319, 321 (8th Cir.1995) (“[T]he
dispositive point [for Confrontation Clause purposes] is that [the defendant] was afforded the
opportunity to effectively examine [the declarant] under oath and in front of a jury about the out-
of-court statements, not that the examination must occur during the prosecution’s case.”). Thus,
we reject Thomas’s argument on this point.
{¶19} Accordingly, we overrule Thomas’s second assignment of error.
Assignment of Error III
The trial court committed reversible error when it found Thomas guilty of
felonious assault because the evidence was insufficient to support such a
finding.
{¶20} In his third assignment of error, Thomas contends that there is insufficient
evidence in the record to support his felonious assault conviction. We disagree.
{¶21} A sufficiency challenge of a criminal conviction presents a question of law, which
we review de novo. State v. Thompkins, 78 Ohio St. 380, 386 (1997). In carrying out this
review, our “function * * * is to examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
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reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
After such an examination and taking the evidence in the light most favorable to the State, we
must decide whether “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. Although we conduct de novo review when considering
a sufficiency of the evidence challenge, we “neither resolve evidence conflicts nor assess the
credibility of the witnesses, as both are functions reserved for the trier of fact.” State v. Jones,
1st Dist. Hamilton Nos. C-120570, C-120571, 2013-Ohio-4775, ¶ 33.
{¶22} Thomas was convicted of felonious assault in violation of R.C. 2903.11(A)(1),
which pertinently provides that “[n]o person shall knowingly * * * cause serious physical harm
to another[.]” “A person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain nature.”
R.C. 2901.22(B). The Revised Code defines “[s]erious physical harm to persons” as including
the following:
[a]ny physical harm that involves some permanent incapacity, whether partial or
total, or that involves some temporary, substantial incapacity[, a]ny physical harm
that involves some permanent disfiguremenet or that involves some temporary,
serious disfigurement[, or a]ny physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves any degree of
prolonged or intractable pain.
R.C. 2901.01(A)(5)(c)-(e). Thomas challenges the sufficiency of the evidence on both the
mental state element of “knowingly” and the element of “serious physical harm.”
{¶23} At trial, S.M. testified that Thomas hit her in the right eye with a “[c]losed fist,
really hard[,]” which she said “hurt real bad” to the point that she “thought he knocked [her] eye
out.” S.M. further testified that the punch caused her to have difficulty seeing and to continue
having problems through the day of trial, which commenced six months after the alleged
incident:
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It hurt really, really bad; really bad. I thought [Thomas] had knocked my eye out
at first because I seen a bright light and seen darkness and that’s all. I thought my
eye was like knocked in the back of my head. And it hurt bad. I have problems
to this day behind it.
S.M.’s medical records were entered into evidence and the medical personnel who treated her
testified as well. These records reflect that during her medical evaluation, S.M. described the
pain to her right eye as a “10” on a scale from one to 10 with 10 being the most painful and that
S.M. received a variety of pain medications. A picture of S.M.’s swollen right eye was also
entered into evidence. Taking this evidence in the light most favorable to the State, we
determine that there is sufficient evidence to support Thomas’s felonious assault conviction. See
State v. Montgomery, 8th Dist. Cuyahoga No. 102043, 2015-Ohio-2158, ¶ 12 (“‘Where injuries
to the victim are serious enough to cause him or her to seek medical treatment, the finder of fact
may reasonably infer that the force exerted on the victim caused serious physical harm as defined
by R.C. 2901.01(A)(5).’”), quoting State v. Lee, 8th Dist. Cuyahoga No. 82326, 2003-Ohio-
5640, ¶ 24; State v. Worrell, 10th Dist. Franklin No. 04AP-410, 2005-Ohio-1521, ¶ 51 (finding
that victim “sustained ‘serious physical harm’ through the bruising”), rev’d in part on other
grounds, sub nom. In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-
Ohio-2109; State v. Stillman, 5th Dist. Delaware No. 04CAA07052, 2004-Ohio-6974, ¶ 24-25
(finding that victim suffered serious physical harm where “her face was swollen” and had
“trauma to the eye”).
{¶24} Thomas specifically argues that there is insufficient evidence regarding the mental
state element of “knowingly” because he denied punching S.M. in the video recording of the
police interview.2 This contention essentially rests on S.M.’s alleged lack of credibility, but such
2
Thomas stated during the police interview that he “could have swung at [S.M.] just like
mugged her out of bed.”
12
an argument “rests in manifest weight, not sufficiency” and we consequently reject it. State v.
Alison, 9th Dist. Summit No. 24719, 2010-Ohio-1340, ¶ 17. As to the serious physical harm
element, Thomas’s contention rests on the lack of evidence indicating that S.M.’s injuries were
life-threatening and the lack of medical records confirming S.M.’s testimony as to the duration of
the pain in her right eye. But, there is no requirement that to sustain a felonious assault, there
must be proof that the victim suffered life-threatening injuries requiring surgery or
hospitalization, see R.C. 2901.01(A)(5) (defining serious physical harm), or that there are
medical records corroborating the duration of the effects from the victim’s injury, see State v.
Ivory, 8th Dist. Cuyahoga No. 84223, 2004-Ohio-5875, ¶ 22 (finding that there was sufficient
evidence regarding serious physical pain where the victim testified to “her ongoing pain”). As a
result, we must reject Thomas’s contentions.
{¶25} Accordingly, we overrule Thomas’s third assignment of error.
Assignment of Error IV
Thomas’s convictions were against the manifest weight of the evidence,
meriting reversal.
{¶26} In his fourth assignment of error, Thomas challenges all of his convictions as
against the manifest weight of the evidence. We disagree.
A. Standard of Review
{¶27} A manifest weight of the evidence challenge to a criminal conviction is legally
distinct from a sufficiency of the evidence challenge. Thompkins, 78 Ohio St.3d at 387.
Accordingly, when applying the manifest weight standard, we are required to consider the whole
record, “weigh the evidence and all reasonable inferences, consider the credibility of witnesses
and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed and a new
13
trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to
only reverse a conviction on manifest weight grounds “in exceptional cases,” State v. Carson,
9th Dist. Summit No. 26900, 2013-Ohio-5785 ¶ 32, citing Otten at 340, where the evidence
“weighs heavily against the conviction,” Thompkins at 387.
{¶28} In addition to the felonious assault conviction described in the discussion of his
third assignment of error, Thomas was also convicted on two counts of rape in violation of R.C.
2907.02(A)(2), which provides that “[n]o person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or threat of force.”
“Sexual conduct” is relevantly defined as “vaginal intercourse between a male and a female; * *
* [and] fellatio * * * between persons regardless of sex[.]” R.C. 2907.01(A). One count of rape
related to the allegation that Thomas forced S.M. to perform fellatio on him. The other related to
the allegation that Thomas forced S.M. to have vaginal intercourse with him.
B. Manifest Weight Regarding Felonious Assault and Rape Convictions
{¶29} S.M. testified in detail to the incident that gave rise to this matter. According to
her testimony, Person started to assault her after the party. During the course of Person’s attack,
Thomas arrived at the house and Person told him that he could receive fellatio from S.M.
Thomas then went into the room where S.M. was, pulled her hair, unzipped his pants, and forced
her to perform fellatio without her consent. He also forced vaginal intercourse on S.M. without
her consent. S.M.’s testimony explicitly describes her expression of the lack of consent and
Thomas’s disregard of it. While performing fellatio, she told Thomas “[t]o not do this; please
don’t do this” and that Thomas’s only response was to tell her to “shut up.” She also attested
that during the course of the vaginal intercourse she “was crying and [she] was telling him
please, stop” before trying to “convince him” to stop and let her sneak out of the house by
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climbing out of the window. When Person came into the room, S.M. said that Thomas jumped
off the bed and said, “[S.M.] playing. Watch her. Don’t trust her. She tried to sneak out the
window.” He subsequently punched her face, causing her a swollen eye that required medical
attention.
{¶30} Thomas contends that this testimony lacked credibility. But, the record does not
reveal that S.M.’s testimony suffers from such serious discrepancies that we, as a reviewing
court relying on “a cold, paper record,” must supplant the jury’s determination of credibility. In
re B.B., 8th Dist. Cuyahoga No. 81948, 2003-Ohio-5920, ¶ 31; see also State v. Johnson, 9th
Dist. Lorain No. 13CA010496, 2015-Ohio-1689, ¶ 15 (“Further, the mere fact that [the
defendant] offered his own self-serving contradictory testimony does not support a reversal on
manifest weight grounds since the trier of fact ‘“ is free to believe all, part, or none of the
testimony of each witness.”’”), quoting State v. Cross, 9th Dist. Summit No. 25487, 2011-Ohio-
3250, ¶ 35, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35.
Rather, from the record, we conclude that “the jury believed what [S.M.] said, and [Thomas] has
not set forth any corroborating evidence as to why this Court should disrupt that finding, other
than reiterating to us what ‘he said.’” State v. Martinez, 9th Dist. Summit No. 24037, 2008-
Ohio-4845, ¶ 17. Consequently, we reject Thomas’s credibility-based argument for the reversal
of his convictions on manifest weight grounds.
{¶31} Thomas also argues that his rape conviction for engaging in vaginal intercourse
with S.M. was against the manifest weight of the evidence since the DNA sample taken from her
vagina did not match his DNA. But, physical evidence is not required to support a rape
conviction against a manifest weight challenge. See id. at ¶ 13 (rejecting manifest weight
challenge to rape conviction even though there was “‘little to no credible physical evidence’”).
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Additionally, the BCI forensic scientist who analyzed the DNA samples provided the following
testimony regarding the lack of a match between Thomas’s DNA and the sample taken from
S.M.’s vagina:
[I]f there was no fluid deposited there, so there was – if a person had contact in
any way with and there’s fluid present from another contributor, you may not be
able to detect any DNA from this possible third person. So if someone had
contact with the vaginal cavity but did not deposit semen, and someone else has
semen there, we would not necessarily be able to detect that. It could be possible
that it’s there, but there’s so much DNA from these other two people that it’s an
undetectable amount for our testing purposes.
From this testimony, the jury could reasonably conclude that the lack of physical evidence was
not determinative as to whether Thomas had vaginal intercourse with S.M. Lastly, in the video
recording of his police interview, Thomas admitted to engaging in vaginal intercourse with S.M.,
which renders any lack of physical evidence inconsequential to our manifest weight analysis.
C. Affirmative Defense of Duress
{¶32} Thomas finally asserts that his convictions were against the manifest weight of the
evidence because the record shows that he only performed the actions giving rise to his
convictions due to duress created by Person. “Duress has long been recognized as an affirmative
defense in Ohio,” State v. Flinders, 9th Dist. Summit No. 26024, 2012-Ohio-2882, ¶ 29, citing
State v. Sappienza, 84 Ohio St.3d 63 (1911), and defendants must prove it by a preponderance of
the evidence, State v. Poole, 33 Ohio St.2d 18, 19 (1973). Despite its technical viability as an
affirmative defense, the Ohio Supreme Court has cautioned that “the defense of necessity or
duress is strictly and extremely limited in application and will probably be effective in very rare
occasions.” State v. Cross, 58 Ohio St.2d 482, 488 (1979). We have previously set out the
elements of duress as follows:
In order to establish the defense of duress, one must establish the following: (1) a
harm due to the pressure of a human force; (2) the harm sought to be avoided was
16
greater than, or at least equal to that sought to be prevented by the law defining
the offense charged; (3) the actor reasonably believed at the moment that his act
was necessary and was designed to avoid the greater harm; (4) the actor was
without fault in bring about the situation; and (5) the threatened harm was
imminent, leaving no alternative by which to avoid the greater harm.
Flinders at ¶ 30, citing State v. Lawson, 2d Dist. Montgomery No. 22155, 2008-Ohio-1311, ¶ 20-
21.
{¶33} Thomas’s defense to the charges was that after he went to Person’s house, Person
instructed him to engage in sexual conduct with S.M. Although he claims that he did not want to
have either oral or vaginal intercourse with S.M., Thomas admits that he nonetheless did because
he was afraid of Person. In support of his duress defense, Thomas points to his statements
during the video recording of the police interview.
{¶34} The jury did not accept Thomas’s defense and chose to disbelieve his claims.
After reviewing the video recording of the police interview and S.M.’s testimony, we cannot
second-guess that determination on appeal. During the course of the police interview, Thomas’s
version of events dramatically changes. At first, he denied even knowing S.M. After being
confronted with contrary evidence obtained during the police investigation, Thomas relented and
admitted to both knowing S.M. and engaging in sexual conduct with her. Initially, though, he
said that he only engaged in sexual conduct with S.M. because he “didn’t want to seem like [a]
sucker type[.]” Subsequently in the interview, Thomas’s story changed and he claimed to have
engaged in sexual conduct with S.M. because he was afraid of Person. Thomas said that he was
fearful of Person due to his bigger size and his strange behavior the night of the incident. But,
Thomas never told Detective Coburn during the interview that Person threatened him and he
would only say that “possibly my [Thomas’s] life was being threatened” at the time of the sexual
conduct.
17
{¶35} In comparison to Thomas’s changing version of events, the jury heard the
following unequivocal testimony from S.M. on direct examination:
Q: [W]hen you’re performing oral sex on [Thomas], did [Person] have a knife
to him?
A: No.
Q: Did he have a gun to his head?
A: No.
Q: Did he threaten him?
A: No.
Q: Did he say if you don’t let her do this I’m going to kill you?
A: No.
S.M. confirmed this testimony on redirect examination:
Q: Michael Person threatened you, right?
A: Yes.
Q: Did you ever hear him threaten [Thomas]?
A: No.
Q: Michael Person hit you, right?
A: Yes.
Q: Did you ever see him hit [Thomas]?
A: No.
** *
Q: Did you hear [Thomas] say to Michael Person anything about wanting to
leave, I don’t want to do this, this isn’t right?
A: No.
18
The jury could choose to believe S.M.’s consistent testimony over the changing version of events
offered by Thomas in his police interview and we cannot disturb that choice on appeal. In sum,
it was not against the manifest weight of the evidence for the jury to find that Thomas failed to
prove the existence of duress.
{¶36} Accordingly, we overrule Thomas’s fourth assignment of error.
III.
{¶37} Having overruled all of Thomas’s assignments of error, we affirm the judgment of
the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
19
CARR, P. J.
CONCURS.
MOORE, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
KRISTEN KOWALSKI, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
State v. Thomas
Combined Opinion