[Cite as State v. West, 2018-Ohio-428.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JOSEPH W. WEST, JR. : Case No. CT2017-0022
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2016-0197
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 31, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX DAVID A. SAMS
Prosecuting Attorney Box 40
W. Jefferson, Ohio 43162
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0022 2
Baldwin, J.
{¶1} Defendant-appellant Joseph W. West, Jr. appeals his conviction and
sentence from the Muskingum County Court of Common Pleas on one count each of rape
and kidnapping. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 8, 2016, the Muskingum County Grand Jury indicted appellant on
one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, and one
count of kidnapping in violation of R.C. 2905.01(A)(4), also a felony of the first degree. At
his arraignment on June 29, 2016, appellant entered a plea of not guilty to the charges.
{¶3} Subsequently, a jury trial commenced on February 21, 2017. The following
testimony was adduced at trial.
{¶4} A.S., the approximately 23 year old victim in this case, testified that in June
of 2015, he ended up in the Muskingum County Jail on a felony arson charge. He testified
that appellant was assigned to the same pod in the jail. According to A.S., on July 21,
2015, appellant asked him if he would clean appellant’s cell in exchange for soup. A.S.
testified that he agreed to do so and that while he was cleaning on the floor of appellant’s
cell with his jumpsuit halfway down to keep cool, appellant grabbed him by the neck and
“put my face against the glass wall and just like straddled me right there where I couldn’t
move and pulled my jumpsuit down and raped me.” Trial Transcript at 236. A.S. testified
that appellant penetrated his back side with his penis and that while he tried to fight, he
could not because appellant had him pinned and A.S. was in a trance. A.S. testified that
appellant told him not to move and that when appellant was done, he patted A.S. on the
back and said ”That was a good one, buddy.” Trial Transcript at 245. A.S. further testified
Muskingum County, Case No. CT2017-0022 3
that appellant had shut the door to the cell and that the window to the cell was covered
with a towel so that no one could look inside. While A.S. tried to scream during the
incident, he could not because he was in shock.
{¶5} After he was able to get away, A.S. went back to his cell and sat on the toilet
because he felt that he had to go the bathroom. When asked if appellant had ejaculated,
A.S. testified that he had. A.S. did not report the rape at that time because he was scared
and embarrassed. He further testified that he did not tell any corrections officers what
had happened on July 21st, 22nd or 23rd of 2015 and that although he went to a nurse on
July 23, 2015, he did not tell the nurse what had happened because of fear and shame.
He further testified that inmates who snitched sometimes got hurt by other inmates.
{¶6} A.S. finally, on July 26, 2016, told a corrections officer who he called Miss
B what had happened because he felt comfortable with her and that he could trust her
while he did not feel comfortable with other corrections officers. A.S. spoke with her and
another female corrections officer in private and testified that he was upset and crying at
the time. He testified that he did not tell the doctor who he saw on July 24, 2015 because
“it’s something that disturbing and disgusting, and it’s just not right.” Trial Transcript at
256. Appellant testified that he called his sister during the period of time from when the
incident happened until when he talked to Miss B and eventually told her what had
happened.
{¶7} On cross-examination, A.S. testified that he did not remember telling Miss
B that he did not say anything while appellant was raping him. He testified that he tried to
yell, but couldn’t, and admitted to having been in jail fights before and being able to handle
himself in a fight. A.S. remembered saying to Miss B that appellant had not ejaculated
Muskingum County, Case No. CT2017-0022 4
and admitted that such statement was not consistent with his trial testimony. A.S., during
cross-examination, was unable to state when he told his sister about the rape. A.S.
recalled speaking with his sister and telling her about being excited about getting out of
jail and having a new start on life and that he felt better. He testified that he did not recall
whether or not, during the period between July 21, 2015 and July 26, 2015, he told his
sister that he had been raped.
{¶8} Roberta Ann Boucher, a corrections officer at the Muskingum County Jail
that appellant referred to as “Miss B”, testified that it was not unusual to see a door window
covered in the cells and that corrections officers could not see into the individual cells
from their control center. She testified that A.S. initially approached her on July 25, 2015
and wanted to talk to her in private, which was not usual, but that they were in the process
of changing shifts, so A.S. told her that he would talk to her the next night. A.S. told the
corrections officers who escorted him to a room in the booking area that he was not
comfortable speaking with a male and wanted to speak with Officer Boucher. A.S. spoke
with her and another female corrections officer. The following testimony was adduced
when Officer Bucher was asked what happened:
{¶9} A. He said that he needed to discuss something about an episode that had
happened earlier in that week, that he was very embarrassed. He began to cry. We just
kept reassuring him that whatever he needed to talk about was kept there. And he was
adamant about he didn’t want us to inform his mother or his sister or any of the men that
worked—or that lived in that pod of what he wanted to discuss with us.
{¶10} Q. And he’s telling you that before he tells you what it is he wants to
discuss?
Muskingum County, Case No. CT2017-0022 5
{¶11} A. Yes. He was very adamant about not wanting this to get out.
{¶12} Q. And his demeanor, what was his demeanor when he’s telling you this?
{¶13} A. A broken man, very nervous. Like, he was mentally and physically sick.
{¶14} Q. What did he tell you?
{¶15} A. He informed us that he had been raped by inmate Joseph West.
{¶16} Trial Transcript at 304-305.
{¶17} Officer Boucher testified that A.S. told her that he had not disclosed the rape
to a doctor who he had seen earlier in the week because the doctor was a male and he
was too embarrassed. She testified that A.S. was “tearful, mentally drained.” Trial
Transcript at 307. On cross-examination, Officer Boucher testified that the day room in
the jail got loud and that if inmates enter a cell and shut the door to the cell, it did not
cause her concern. Officer Boucher further testified that A.S. was adamant that he did
not want his sister or mother to know what had happened, but admitted that she did not
so specify in her report. She also admitted that she did not indicate in her incident report
that A.S. had said that appellant had ejaculated, although she thought that she would
have documented such statement if it had been made. On redirect, Officer Boucher
testified that the she had never interviewed a rape victim before or prepared an incident
report and that it was not part of her training. She further testified that A.S. told her that
he needed to use the bathroom after the incident because he “immediately felt like he
had to poop.” Trial Transcript at 332. A.S. told her that he had bleeding from his rectum
and Officer Boucher testified that she believed that she had documented the bleeding in
her report. She testified that there were no cameras showing the inside of an inmate’s
jail cell.
Muskingum County, Case No. CT2017-0022 6
{¶18} At trial, Detective Steven Welker of the Muskingum County Sheriff’s Office
testified that there was no video surveillance at the jail at time of the incident, but that
equipment has since been added. He testified that he obtained the recorded phone calls
from the jail between A.S. and his sister and that A.S. did not make any disclosures to his
sister on July 22, 2015 or July 23, 2015 and that during the conversations on such dates,
A.S. was positive and upbeat. According to Detective Welker, the rape kit, which was
taken beyond the 72 hour period for sex crime evidence kits, was inconclusive. On
redirect, Detective Welker testified that the telephones that A.S. would have been calling
his sister from were in the day room and that other inmates would have been able to hear
A.S.’s conversations with his sister.
{¶19} At the conclusion of the State’s case, appellant’s counsel made a Crim.R.
motion for judgment of acquittal. The trial court denied the motion.
{¶20} At the conclusion of the evidence and the end of deliberations, the jury, on
February 22, 2017, found appellant guilty of both counts. Pursuant to an Entry filed on
March 6, 2017, the trial court merged the two counts and sentenced appellant to eleven
years in prison. The trial court ordered that the sentence be served consecutively to the
prison sentence that appellant already was serving. Appellant also was classified as a
Tier III sex offender.
{¶21} Appellant now raises the following assignments of error on appeal:
{¶22} I. THE TRIAL COURT ERRED IN ALLOWING UNNECESSARY
EVIDENCE OF THE VICTIM’S INTELLECTUAL IMPAIRMENT.
{¶23} II. THE RAPE AND KIDNAPPING CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Muskingum County, Case No. CT2017-0022 7
I
{¶24} Appellant, in his first assignment of error, argues that the trial court erred in
allowing testimony of A.S.’s intellectual impairment. We disagree.
{¶25} Prior to A.S.’s testimony at trial, Jennifer Todd, an intervention
specialist/social worker for special needs children, testified that she was employed by
Eagle Wings Academy, a special needs school focusing on intensive behavior. She
testified that all of their students had individualized education plans and that A.S. had
been placed in her classroom his ninth grade year of high school. Todd testified that A.S.
was in her class for approximately four and a half years and graduated in 2013. She
testified that he had been born prematurely and addicted to crack cocaine. Over objection,
she testified that A.S. functioned at the level of a student entering the seventh grade.
According to Todd, A.S. took a longer time to process information and had cognitive
delays.
{¶26} Appellant now contends that Todd’s testimony was irrelevant and highly
prejudicial and thus not admissible. Relevant evidence is admissible unless prohibited by
an evidentiary rule, statute, or constitutional provision. Evid.R. 402. Evid.R. 403(A)
provides that relevant evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.
{¶27} We find that the probative value of the above testimony was not
substantially outweighed by the danger of unfair prejudice. The testimony had significant
probative value because it helped explain why A.S., who according to the testimony took
Muskingum County, Case No. CT2017-0022 8
a long time to process information, delayed in reporting and why his ability to relate what
had occurred during the incident was affected by his limited cognitive abilities.
{¶28} Appellant’s first assignment of error is, therefore, overruled.
II
{¶29} Appellant, in his second assignment of error, contends that his convictions
for rape and kidnapping were against the manifest weight of the evidence. We disagree.
{¶30} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, 678 N.E.2nd 541, superseded by constitutional amendment on other
grounds as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶31} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 231, 237 N.E.2d 212
(1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260, 418, 674 N.E.2d 1159. The jury
as the trier of fact was free to accept or reject any and all of the evidence offered by the
Muskingum County, Case No. CT2017-0022 9
parties and assess the witness's credibility. “While the jury may take note of the
inconsistencies and resolve or discount them accordingly * * * such inconsistencies do
not render defendant's conviction against the manifest weight or sufficiency of the
evidence.” State v. Craig, 10th Dist. No. 99AP–739, 1999 WL 29752 (Mar 23, 2000) citing
State v. Nivens, 10th Dist. No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed,
the jury need not believe all of a witness' testimony, but may accept only portions of it as
true. State v. Raver, 10th Dist. No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill,
176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶32} Appellant initially points out that there was no physical evidence, whether
injury, DNA or otherwise, and argues that there were inconsistencies and contradictions
in A.S.’s testimony that cast doubt on his credibility. Appellant argues that A.S. did not
struggle or yell out during the assault. However, A.S. testified that he was unable to fight
appellant off because appellant had him pinned and everything happened very quickly.
He testified at he tried to yell, but could not. While, as appellant argues, there were no
witnesses, there was testimony that appellant closed the door to his cell and that the
window to appellant’s cell was covered with a towel. There also was testimony that the
day room was very loud and that there was no video surveillance equipment.
{¶33} Appellant also questions A.S.’s credibility on the basis that A.S. delayed in
reporting the incident. At trial, A.S. testified that he did not immediately report what had
happened because he was embarrassed and scared and that snitching was not looked
on favorably and could lead to getting hurt. Next, appellant argues that A.S. did not
initially report that appellant had ejaculated and may have denied it. During his testimony,
A.S. admitted that when he talked to Detective Welker, he did not admit that appellant
Muskingum County, Case No. CT2017-0022 10
had ejaculated, but testified that he did not want to tell another man about the ejaculation.
He maintained at trial that he had told Officer Boucher about the ejaculation. While she
did not include the ejaculation in her report, she testified that she did not recall asking
A.S. if appellant had ejaculated and that she had never interviewed a rape victim before.
She did testify that A.S. had told her that he needed to use the bathroom immediately
after the rape because he needed to defecate and that he was bleeding from his rectum.
{¶34} Appellant also stresses that A.S. did not initially report the rape to the jail
nurse, doctor or his sister. When asked why he did not tell the nurse, A.S. testified that
he was scared and ashamed. He testified that he did not tell the doctor because the
incident was disturbing and disgusting. While appellant did eventually tell his sister, he
was unable to recall when he did so. There was testimony that when A.S. went to talk to
Officer Boucher, he was crying and was insistent that he did not want his mother or sister
to know due to embarrassment. Moreover, there was testimony at trial that the phones
were in a public area so that any conversations that appellant had with his sister could
have been overheard by his fellow inmates.
{¶35} In short, we find that the evidence presented, if believed, proved that
appellant committed rape and kidnapping beyond a reasonable doubt and that the jury
did not lose its way in convicting appellant. The jury, as trier of fact, was in the best
position to assess A.S.’s credibility and clearly found his testimony credible.
{¶36} Appellant’s second assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2017-0022 11
{¶37} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
John Wise, P.J. and
Hoffman, J. concur.