State v. Simpson

[Cite as State v. Simpson, 2018-Ohio-328.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-16-1175

Appellee Trial Court No. CR0201502696

v.

Kerry Drake Simpson DECISION AND JUDGMENT

Appellant Decided: January 26, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

James J. Popil, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Appellant, Kerry Simpson, appeals from the July 12, 2016 judgment of the

Lucas County Court of Common Pleas convicting him of rape, a violation of R.C.

2907.02(A)(2) and (B), and compelling prostitution, a violation of R.C. 2907.21(A)(1)

and (B), with an enhancement that the victim was less than 16 years of age, and

sentencing him to a mandatory term of nine years and six years respectively, to be served

consecutively. Upon consideration of the assignment of error, we affirm.
 {¶ 2} Appellant asserts the following single assignment of error:

Appellant’s convictions were not supported by the manifest weight

of the evidence.

{¶ 3} A challenge to the weight of the evidence questions whether a greater

amount of credible evidence was admitted to support the conviction than acquittal. State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). When weighing the

evidence, the court of appeals must consider whether the evidence in a case is conflicting

or where reasonable minds might differ as to the inferences to be drawn from it, consider

the weight of the evidence, and consider the credibility of the witnesses to determine if

“the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” Id., quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “[I]n determining whether the

judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment and

the finding of facts.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, fn. 3,

461 N.E.2d 1273 (1984), quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section

603, at 191-192 (1978).

{¶ 4} At trial J.W., the victim, testified as follows. In 2005, she was fifteen years

old when she met appellant, whom J.W. knew was 40 years old, through S.S., an

elementary school friend. At that time, J.W. was addicted to crack cocaine, and appellant

initially supplied her and S.S. with crack cocaine for free. Later that year, she moved in

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with appellant without her mother’s knowledge. Afterward, she did not feel free to leave

because she wanted the drugs and was terrified of appellant. He would not allow her to

leave the apartment without supervision.

{¶ 5} She recalled once when appellant became very angry at her and yanked her

hair because she had used a neighbor’s phone to report that S.S. had overdosed on drugs.

Appellant took her away while the police responded to the call because he was afraid he

would get in trouble. S.S. confirmed that she had once overdosed on drugs.

{¶ 6} J.W. testified that appellant forced J.W. and S.S. to prostitute themselves at

his apartment or on “dates” he arranged. J.W. and S.S. were forced to give appellant the

money they were paid and he supplied them with crack cocaine. J.W. recalled numerous

times when she refused to comply with appellant’s demands or had not returned home

soon enough after an encounter and he had hit her with his hands, a bat, or a belt. She

also saw him hit S.S. once and other women at the apartment numerous times. Appellant

would also force J.W. to hit S.S.

{¶ 7} S.S., who was serving time for complicity to commit aggravated robbery and

murder, also testified at trial and confirmed J.W.’s testimony. S.S. admitted she had been

a 13-year-old runaway and met appellant when she purchased drugs from him. She

introduced J.W. to appellant, who supplied them with crack cocaine and later forced them

to prostitute themselves and give him the money in order to get drugs. S.S. further

testified that while appellant would arrange sexual encounters or send S.S. out to find her

own encounters, he never let J.W. leave the apartment alone. He also made S.S. have sex

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with drug dealers four or five times in order to obtain crack cocaine. S.S. complied with

appellant’s demands because she wanted a place to live and access to the drugs. S.S.

testified appellant forced her to have sex a few times and she saw him having sex with

J.W. who appeared uncomfortable. S.S. was afraid of appellant because she had seen

him become violent and hit J.W. with his hand and a belt. He also manipulated them into

hitting each other to destroy their friendship. S.S. also saw J.W.’s mother at the

apartment using drugs with J.W. and appellant.

{¶ 8} N.S., who had a prior conviction for making a false statement relating to her

drug use in 2005, testified that she used crack cocaine at appellant’s house in 2005 and

sometimes slept there. She confirmed J.W. lived at the apartment and usually hid in the

bedroom. N.S. saw J.W. use crack cocaine at the apartment and saw J.W. leave the house

four or five times and return with money she gave appellant. N.S. also saw appellant

implicitly threaten J.W. and other girls by wearing a belt around his neck and giving them

a look. She saw one girl who had been beaten, but did not know who had beat her.

{¶ 9} J.W. admitted that she had consensual sex with appellant but sometimes had

complied to avoid being hit or because he forced her. She recalled the turning point

event that led to her escape from appellant. On the evening of September 9, 2005,

appellant became angry and beat her repeatedly with a bat because he thought she had not

properly responded to his friend. She recalled deciding that night that she had to get

away from him. The next morning, appellant wanted J.W. to have sex with him and

when she objected, he told her that she would do whatever he told her to do. He forced to

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have vaginal and anal sex with him, causing her pain and injury and to become hysterical.

Afterward, he sent her out with a man who also wanted to have anal sex. She jumped out

of the car and ran to her grandmother’s home before going to a hospital, where she stayed

until being discharged the following day.

{¶ 10} J.W.’s medical records were introduced into evidence. An analysis of the

rape kit was analyzed by the Bureau of Criminal Investigations (“BCI”). The BCI found

DNA from a vaginal swab that indicated a match to appellant’s DNA at a ratio of

1:536,800 people. While the DNA taken from a fabric sample and an anal swab

indicated the presence of a male’s DNA, there was insufficient genetic material to

identify or exclude a particular source. Photographs of J.W.’s bruising were also

admitted, which J.W. testified were caused by being hit with the bat. The records also

documented numerous vaginal and anal tears. The assault history completed at the

hospital indicated that the assault had occurred at 5:30 p.m. on September 10, 2005, but

the report was prepared at 2330 hours on September 10, 2005. An officer who was called

to investigate the matter testified that she took J.W.’s statement that day and took

possession of the rape kit, which was secured in the policy department’s property room.

{¶ 11} J.W. testified she did not return to appellant after these events, but she

would not cooperate with the prosecution of appellant at that time because she was afraid

of him. She asserted she returned home to live with her mother who had met appellant

once. Appellant had previously threatened to kill her family if she did not return from

her prostitution calls. J.W. also testified she never spoke to S.S. again and saw appellant

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once four years later. S.S. also testified that she saw J.W. several times after S.S.

recovered from overdosing and met appellant through J.W. a few times and hung out with

appellant at a club once. S.S. did not clarify the time period when these meetings

occurred.

{¶ 12} The Toledo police detective began his investigation of the case in early

2015 with an untested rape kit obtained from J.W. in 2005. He spoke with the victim and

other witnesses. J.W. testified that she finally agreed to cooperate with the prosecution in

2015 to prevent another girl from being harmed by appellant. The detective identified

appellant as the suspect and found him in Mississippi. After appellant was brought back

to Toledo, the detective interviewed appellant and obtained DNA evidence from him. He

denied the rape accusation, but admitted only to having had vaginal sex with J.W.,

without knowledge of her age. Initially, he denied prostitution was occurring out of his

apartment, but he later admitted J.W. and the other women were prostitutes who paid

their own way.

{¶ 13} The detective also testified that he listened to appellant’s telephone

conversation while he was held in custody. In a three-way call appellant made to keep

the phone number private, he spoke to “Mike” and inquired about Mike’s ability to locate

J.W. at area women’s shelters. The detective testified defendants sometimes attempt to

intimidate or pay-off victims to get them to drop their allegations. A recording of the call

was played for the jury.

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 {¶ 14} Appellant argues in his sole assignment of error that J.W.’s testimony was

not credible. He asserts the jury was inflamed by the nature of the charges and failed to

fairly weigh the evidence because it found him guilty. Appellant identified the evidence

which he believed supported his argument. However, he did not include references to the

transcript pages and misstates the evidence that was admitted. For this reason, appellee

argues we should disregard appellant’s assignment of error.

{¶ 15} Any statement of fact made in connection with the assignment of error

must be supported by references to the pages within the document that is part of the

record. App.R. 16(A)(6) and (D). If a party fails to make references to the record to

support their argument, the appellate court has the discretion to disregard the assignment

of error. App.R. 12(A)(2); State v. Peagler, 76 Ohio St.3d 496, 499, 668 N.E.2d 489

(1996); Hawley v. Ritley, 35 Ohio St.3d 157, 159, 519 N.E.2d 390 (1988), citing

Uncapher v. Baltimore & Ohio RR. Co., 127 Ohio St. 351, 356, 188 N.E. 553 (1933).

While we could disregard appellant’s assignment of error, we will consider the weight of

the evidence assignment of error but without consideration of appellant’s summation of

the evidence.

{¶ 16} Regarding the rape charge, appellee was required to prove that appellant

engaged in sexual conduct with J.W. by purposely compelling J.W. to submit by force or

threat of force. R.C. 2907.02(A)(2). At trial, J.W. specifically recalled an evening when

appellant had beaten her with a bat and her injuries were evidenced by photographs taken

at the hospital the next day. The next morning, J.W. testified appellant forced her to have

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vaginal and anal sex. The vaginal sex was confirmed by DNA testing. The anal testing

was inconclusive, although the sample indicated foreign DNA which could have come

from appellant. While the hospital records reported the attack occurred on September 10

at 5:30 p.m., rather than the evening of September 9, it was the jury’s role to determine if

there was an error in the record and weigh the credibility of J.W. Furthermore, it is

within the province of the jury to consider whether J.W.’s admission that she saw

appellant years later and S.S.’s testimony that she met appellant again “through” J.W.

discredited J.W.’s credibility.

{¶ 17} Regarding the charge of compelling prostitution, appellee was required to

prove that appellant knowingly compelled J.W. to engage in sexual activity for hire. R.C.

2907.21(A)(1). Subsection (B) further provides that

the element “compel” does not require that the compulsion be openly

displayed or physically exerted. The element “compel” has been

established if the state proves that the victim’s will was overcome by force,

fear, duress, or intimidation.

{¶ 18} Appellant admitted that J.W. was a prostitute and there was sufficient

evidence upon which a jury could have found that appellant compelled J.W. to prostitute

herself. J.W. testified appellant forced her to prostitute herself in order to receive drugs

and out of fear. Two other young women also testified that appellant required J.W. to

prostitute herself. The compulsion element was established by the fact that appellant was

40 years old and J.W. was 15; appellant supplied J.W. with drugs; appellant kept J.W.

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confined to his apartment except when out on a call; appellant threatened J.W. by

carrying a belt around his neck, hitting her, raping her, and threatening her family; and

appellant attempted to find J.W. after the charges against him were filed.

{¶ 19} We conclude the jury did not clearly lose its way in weighing the evidence

and determining the credibility of the witnesses. The findings of guilt were not contrary

to the manifest weight of the evidence. Therefore, we find appellant’s sole assignment of

error not well-taken.

{¶ 20} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE

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