[Cite as State v. Thacker, 2015-Ohio-4214.]


                                   COURT OF APPEALS
                                RICHLAND COUNTY, OHIO
                               FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                     :   Hon. Sheila G. Farmer, J.
                                              :   Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :   Case No. 14CA62
                                              :
DONOVAN IAN THACKER                           :
                                              :
                                              :
       Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Richland County
                                                  Court of Common Pleas, Case
                                                  No. 2014 CR 0186 D



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           October 7, 2015



APPEARANCES:

For Plaintiff-Appellee:                           For Defendant-Appellant:

BAMBI COUCH-PAGE                                  JOHN C. O'DONNELL, III
RICHLAND CO. PROSECUTOR                           10 West Newlon Place
LILLIAN R. SHUN                                   Mansfield, OH 44902
38 South Park St.
Mansfield, OH 44902
Richland County, Case No. 14CA62                                                   2

Delaney, J.

       {¶1} Appellant Donovan Ian Thacker appeals from the judgment entry of

conviction and sentence of the Richland County Court of Common Pleas.

Appellee is the state of Ohio.

                     FACTS AND PROCEDURAL HISTORY

                                  The Evidence at Trial

       {¶2} Appellant, 24, a convicted felon,1 met Jennifer Bowman, 32,

through her job at Volunteers of America when he was released from prison into

the halfway-house program.       Appellant and Bowman began to date in late

October 2013 immediately upon appellant's release and appellant started

"hanging around" Bowman's house frequently.2          Bowman had four minor

children: W.P., K.P., B.B., and A.B. At the time of these events, W.P. was 15

and his sister K.P. was 12. B.B. was 8 and A.P. was 3. Appellant babysat the

children while Bowman worked.

       {¶3} On February 6, 2014, around 6:00 p.m., appellant was at

Bowman's house and as had become their habit, the couple drank beer and

tequila. Also present was another adult named Jeff Losey and Losey's girlfriend.

Losey eventually passed out in the living room, drunk, and his girlfriend left.

Appellant offered W.P. a shot of tequila and Bowman did not object. W.P. spit


1 Appellant has felony convictions for theft from an elderly person, misuse of
credit cards, and felony domestic violence. Appellant also has misdemeanor
O.V.I. convictions. He acknowledged his criminal activity arises from his
alcoholism, which he was in treatment for at Volunteers of America when he met
Bowman.
2 Bowman's supervisor confronted her about dating someone from the program

and told her if the relationship continued she would be fired. Bowman quit and
did not work again during the pendency of this case.
Richland County, Case No. 14CA62                                                       3


out the tequila but remained in the room, sitting on the couch. W.P.'s siblings

played in another room.      W.P. observed appellant whisper something in his

mother's ear; appellant then approached W.P. and said he wanted to speak to

him upstairs.

         {¶4} W.P. assumed appellant wanted to reprimand him because W.P.

"had an attitude" earlier that day about washing dishes.

         {¶5} W.P. testified he and appellant had a good relationship up to this

point. He first met appellant when his mother and stepfather were in the process

of separating. As his mother and appellant began to date, W.P. liked appellant;

appellant helped the family with Christmas, bought things for the kids, and talked

W.P.'s mom into letting him get his ears pierced. On this day, W.P. headed

upstairs with appellant behind him.

         {¶6} W.P. was surprised when appellant led him into his brother's

bedroom and closed and locked the door.3            W.P. became alarmed when

appellant approached him and became uncomfortably close to him.               W.P.

testified appellant tried to kiss him and W.P. resisted, turning his head. Appellant

forced W.P. onto the bed, held him down, removed his pants, and forcibly

sexually assaulted him. W.P. described oral and anal penetration.

         {¶7} During the assault, W.P. cried      and yelled for his brother and

sisters. Music was playing loudly downstairs, however. Finally K.P. and B.B.

knocked on the bedroom door for about 20 seconds, causing appellant to stop




3   B.B.'s room has a lock on the door but W.P.'s room does not.
Richland County, Case No. 14CA62                                                       4


the assault, pull his pants on, and tell W.P. to get dressed. Appellant left the

room and went back downstairs.

       {¶8} K.P. asked W.P. what was wrong and he did not reply; he ran into

the bathroom where he threw up and took a long shower because he felt "dirty

and nasty." W.P. cried in the shower and wondered whether he should tell his

mom while appellant was still in the house. When he came out of the shower, he

went into K.P.'s room and told her appellant raped him. K.P. was angry and

demanded they tell their mother immediately, but W.P. urged her not to while

appellant was still in the house. W.P. spent that night in K.P.'s bedroom because

he was afraid.

       {¶9} Early the next morning, Bowman briefly left the house. Upon her

return, W.P. told her appellant raped him. W.P. testified his mother became

angry and ran from the room. About 30 minutes later, she came back into the

room and told W.P. she didn't believe him because appellant was "not that type

of guy." She also told him not to tell anyone. W.P. was devastated and felt he

made a mistake in telling his mother what happened.4

       {¶10} Later that day, W.P. contacted his friend J.S. on Facebook and told

her what happened. He told J.S. he didn't want to stay at his house. J.S. and

her mother, Tiffany Reuer, drove to the house and picked W.P. up.

       {¶11} Tiffany Reuer is an L.P.N. and a mandated child abuse reporter.

J.S. told her what happened to W.P. When W.P. got into their car, he started


4 At trial, Bowman testified she never told W.P. she didn't believe him, although
he "may have gotten that feeling" from her failure to take action and her feeling
that she "didn't want it to be true." Bowman admitted at trial she initially lied to
investigators to protect appellant.
Richland County, Case No. 14CA62                                                     5


crying. Reuer talked to him and explained he needed to disclose what happened

and to go to the hospital.    At first W.P. resisted but then was willing to go

because he was in pain; Reuer testified W.P. was visibly uncomfortable sitting.

W.P. testified he was bleeding and was afraid something was seriously wrong.

      {¶12} Reuer first took W.P. to his father's house to tell him what

happened and to give his father the opportunity to seek help. The father had no

vehicle, however, and asked Reuer to take W.P. to the hospital. Reuer took

W.P. to MedCentral in Mansfield.

      {¶13} A Sexual Abuse Nurse Examiner (SANE) nurse examined W.P. on

February 8 and documented physical evidence of the rape. W.P. had physical

injuries including bruising to his arm and abrasions, redness, and swelling to his

rectum consistent with sexual assault. The history of the assault reported by

W.P. was consistent with the injuries observed.    The SANE nurse testified the

injuries could not have been caused by diarrhea or bowel movements. The

abrasions and tears were consistent with penetration. The nurse did not find

blood during the exam but there was blood in W.P.'s underwear. In the time

since the rape, W.P. had used the bathroom, showered, vomited, brushed his

teeth, and changed clothes repeatedly.     The nurse testified showering could

wash away even internal D.N.A. evidence within that time period.

      {¶14} From the hospital, W.P. went to the Mansfield Police Department

and provided a statement to investigators. Police went to the residence and

collected a camouflage blanket from B.B.'s bed. No other physical evidence was

collected from the residence although the bedroom was photographed. The rape
Richland County, Case No. 14CA62                                                    6


kit and blanket tested negative for the presence of semen so no D.N.A. testing

was performed.

         {¶15} Children's Services launched an investigation as well. Appellant

was forbidden from having any contact at all with the children. W.P. was placed

in the temporary custody of his father. Bowman's mother lived at the residence

on a temporary basis to ensure Bowman was appropriate with the other children.

         {¶16} In the meantime, Bowman told appellant everything investigators

revealed about W.P.'s injuries and statements. Appellant was still on probation

and reported to his probation officer, who placed him in custody for a probation

violation related to the alcohol consumption. While appellant was in custody,

detectives interviewed him and he denied raping W.P.         Appellant said his

experience in prison was child sex offenders are not treated well. He also denied

drinking at Bowman's house.

         {¶17} Bowman continued to communicate with appellant while he was in

jail.   They wrote, visited, or talked by phone every day.   Bowman also had

contact with appellant's mother and they discussed explanations for W.P.'s

injuries, including a virus the family experienced in the weeks leading up to the

rape which had caused diarrhea. Appellant and Bowman discussed an escape

plan in which appellant would fake an illness in order to be transported to the

hospital from which Bowman would help him escape. One of the letters they

exchanged contained a hand-drawn map of the hospital. Bowman continually

expressed her love and support for appellant.
Richland County, Case No. 14CA62                                                    7


      {¶18} In the weeks before the trial, the prosecutor's office presented

Bowman with evidence appellant had been corresponding with another woman

from jail as well.   Bowman ultimately stopped supporting appellant and her

contact with him ceased. At trial, Bowman acknowledged she first supported

appellant over her son, but said over time she thought about appellant's lies and

manipulation and how long he had been upstairs with W.P. that night. Bowman

denied her changing attitude had anything to do with the pending dependency

and abuse case against her in family court through which she was required to

comply with a case plan.

      {¶19} W.P.'s father testified that since the rape, W.P. has been in

counseling and takes medication for anxiety and depression. In the weeks and

months after the rape, W.P. wakes up from nightmares screaming.

      {¶20} Appellant testified on his own behalf at trial. He acknowledged his

felony record and his alcoholism. He denied insinuating himself into Bowman's

family over a very short period of time and denied singling out W.P. and

grooming him for sexual abuse. He also denied raping W.P., stating he went

upstairs with W.P. that night and they talked about various issues W.P. was

having. Appellant said he was drunk and "lectured" W.P. which may have made

him appear upset when K.P. observed them in B.B.'s bedroom.            Appellant

claimed that he couldn't remember what he said when Bowman first asked him

whether he raped W.P. other than to say "absolutely not."

      {¶21} Bowman was recalled by appellee upon rebuttal and testified that

when she first confronted appellant with the rape accusation, he said W.P. "came
Richland County, Case No. 14CA62                                                       8


on to him" but nothing happened.           She also testified to the timeline of the

diarrhea virus. W.P. also testified upon rebuttal and said he did have diarrhea in

February but it did not cause bleeding; he did not have a habit of spending the

night in K.P.'s room; and he had no problems with appellant in general prior to

the rape.

                          Indictment, Conviction, and Sentence

       {¶22} Appellant was charged by indictment with one count of forcible rape

pursuant to R.C. 2907.02(A)(2) [Count I]; one count of kidnapping pursuant to

R.C. 2905.01(A)(4) [Count II]; and one count of unlawful sexual conduct with a

minor pursuant to R.C. 2907.04(A)(1) [Count III]. Appellant entered pleas of not

guilty and the case proceeded to trial by jury. Appellant was found guilty as

charged. Counts II and III merged with Count I and the trial court sentenced

appellant to a prison term of 11 years.5

       {¶23} Appellant raises four assignments of error:

                          ASSIGNMENTS OF ERROR

       {¶24} "I. THE TRIAL COURT ERRED TO DEFENDANT/APPELLANT'S

PREJUDICE BY REFUSING TO ADMIT TESTIMONY OF VICTIM'S SEXUAL

PREFERENCE OR ORIENTATION."

       {¶25} "II.   THE TRIAL COURT COMMITTED PLAIN ERROR IN

ALLOWING EXTRANEOUS EVIDENCE IN REBUTTAL TESTIMONY BY TWO

STATE'S WITNESSES."




5Appellant was also found guilty of a probation violation and sentenced to a
consecutive 18-month term on that offense.
Richland County, Case No. 14CA62                                                        9


       {¶26} "III. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE

OF COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION."

       {¶27} "IV.   THE COURT ERRED IN SENTENCING DEFENDANT TO

THE MAXIMUM SENTENCE."

                                    ANALYSIS

                                         I.

       {¶28} In his first assignment of error, appellant argues the trial court

should have allowed evidence of the victim's "sexual preference or orientation"

and also summarily argues that purported evidence of the victim's sexual activity

would have been admissible. We disagree.

       {¶29} The admission or exclusion of relevant evidence is a matter left to

the sound discretion of the trial court. Absent an abuse of discretion resulting in

material prejudice to the defendant, a reviewing court should be reluctant to

interfere with a trial court’s decision in this regard. State v. Hymore, 9 Ohio St.2d

122, 128, 224 N.E.2d 126 (1967).

       {¶30} Appellant's argument here is premised upon a mischaracterization

of the record. Appellant argues "Defendant/Appellant's Counsel wanted to admit

testimony that the victim had told Defendant/Appellant that he liked to have

homosexual sex."      (Brief, 4).   No such statement or conversation was in

evidence.   In fact, the record reveals the proffered evidence in the pretrial

conference consisted of the following:
Richland County, Case No. 14CA62                                                     10


            THE COURT: We have a motion in limine. The prosecutor has

            asked that the defendant be prohibited from bringing in other

            evidence of the victim's sexual activity.

                    [Defense counsel]; you think you have appropriate evidence

            to bring in. What evidence do you intend to offer of the victim's

            sexual--

            [DEFENSE COUNSEL]:          There is no direct evidence of sexual

            activity before or after the incident.      There is a lot of evidence

            regarding the sexual orientation of the boy in the months leading up

            to the offense, there was a conflict with that, it was a topic of

            discussion with his mother, with [appellant] himself and others as

            well.

                    There is evidence he is troubled. He cuts himself, there are

            issues going on in his life, including his sexual orientation. The

            testimony is he was bullied at school.

            THE COURT: How is that relevant to this case?

            [DEFENSE COUNSEL]: Because it shows an animus for--part of

            our defense is the relationship between his mother and [appellant]

            was a source of agitation for him, a source of animosity.

            THE COURT: How is that a defense for your client?

            [DEFENSE COUNSEL]: It gives him reason for motivation, gives

            him a reason to come up with a story to get him out of the house.
Richland County, Case No. 14CA62                                                    11


             THE COURT: He's lying about your client to get away from his

             mother?

             [DEFENSE COUNSEL]: To get my client out of their lives.

             * * * *.

             T. 6-7.

      {¶31} And later, when the trial court suggests any evidence pertaining to

the victim's sexual orientation is wholly irrelevant because the victim is 15 and

even alleged consent to a sexual act is not a defense:

             * * * *.

             [DEFENSE COUNSEL]:         I understand what your ruling is

             going to be, but the purpose of the evidence of his sexual

             orientation isn't to establish conduct on his part or smear his

             reputation. It's to show it was an issue of animosity between

             himself, his mother, and [appellant] the day they were talking

             to him, he was running into problems at school, with

             counseling.   And according to information I received, that

             was a source of unhappiness for [W.P.]. It shows a reason

             he would be upset with my client, on top of many other

             reasons.

             * * * *.

             T. 11.
Richland County, Case No. 14CA62                                                         12


         {¶32} The trial court properly ruled the prejudicial effect of the proffered

evidence, nebulous at best outweighed any probativeness and was therefore

inadmissible.

         {¶33} Appellant further argues, though, that evidence of the victim's

sexual activity should have been admitted, another argument that was not before

the trial court. Defense trial counsel specifically acknowledged "[t]here is no

direct evidence of [the victim's] sexual activity before or after the incident." T. 6,

supra.    Instead, appellant's argument at trial was that the victim was having

emotional problems that somehow culminated in him wanting appellant out of

their lives, an argument the trial court correctly determined is unrelated to

evidence of sexual orientation.

         {¶34} On appeal, though, appellant argues "[t]he evidence of sexual

orientation was relevant to the issue of why there was evidence of penetration to

the rectum of [the victim]." Brief, 4. Such evidence was neither proffered nor

argued at trial. Based solely upon appellant's contention here, the admission of

such evidence would clearly violate Ohio's rape shield law, which excludes

reputation, opinion, and specific-acts evidence of a victim's alleged sexual history

unless an exception applies. State v. Shuster, 5th Dist. Morgan Nos.

13AP0001and 13AP0002, 2014-Ohio-3486, ¶¶ 68-69, appeal not allowed, 141

Ohio St.3d 1489, 2015-Ohio-842, 26 N.E.3d 824, reconsideration denied, 142

Ohio St.3d 1469, 2015-Ohio-1896, 30 N.E.3d 976, citing R.C. 2907.02(D); R.C.

2907.05(E). Appellant's summary argument fails to address any exception under

which such evidence would be relevant or admissible.
Richland County, Case No. 14CA62                                                      13


       {¶35} We further note the sexual-orientation issue was raised before the

trial court as a motion in limine by appellee: appellee moved to exclude evidence

of the victim's sexual orientation and appellant responded in opposition.

Appellant never raised the issue again after the trial court granted the motion in

limine. In State v. Pyo, 5th Dist. Delaware No. 04CAA01009, 2004-Ohio-4768,

we explained: “In general, the ruling on a motion in limine does not preserve the

record on appeal and an appellate court need not review the ruling unless the

claimed error is preserved by an objection at trial." State v. Grubb, 28 Ohio St.3d

199, 503 N.E.2d 142 (1986), paragraph two of the syllabus, citing, e.g., State v.

Leslie, 14 Ohio App.3d 343, 344, 471 N.E.2d 503 (1984).

       {¶36} Appellant's first assignment of error is overruled.

                                          II., III.

       {¶37} Appellant's second and third assignments of error are related and

will be considered together. Appellant argues the trial court should not have

permitted the victim and his mother to testify on rebuttal and that defense trial

counsel was ineffective for failing to object to the rebuttal witnesses.       We

disagree.

       {¶38} “Rebutting evidence is that given to explain, refute, or disprove new

facts introduced into evidence by the adverse party; it becomes relevant only to

challenge the evidence offered by the opponent, and its scope is limited by such

evidence.” State v. McNeill, 83 Ohio St.3d 438, 446, 700 N.E.2d 596 (1998);

State v. Grinnell, 112 Ohio App.3d 124, 146, 678 N.E.2d 231 (1996) [“The

purpose of rebuttal is to permit the state the opportunity to refute new evidence
Richland County, Case No. 14CA62                                                           14


offered by the defendant in the presentation of his case.”]. The Ohio Supreme

Court has held that “[a] party has an unconditional right to present rebuttal

testimony on matters which are first addressed in an opponent's case-in-chief

and [that is not testimony that should have been presented] in the rebutting

party's case-in-chief.” Phung v. Waste Mgmt. Inc., 71 Ohio St.3d 408, 410, 644

N.E.2d 286 (1994). It has also written that “[i]t is within the trial court's discretion

to determine what evidence is admissible as proper rebuttal.” McNeill, supra, 83

Ohio St.3d at 446. In order to find an abuse of discretion, we must determine that

the trial court's decision was unreasonable, arbitrary or unconscionable and not

merely an error of law or judgment. State v. Richards, 5th Dist. Stark No.

1999CA00362, 2000 WL 502831, *3 (Apr. 17, 2000), citing Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶39} Appellant argues appellee's rebuttal witnesses, Bowman and W.P.,

merely restated their testimony from direct examination. We disagree with this

characterization. Both witnesses responded to the defense raised by appellant:

that W.P.'s injuries may have been caused by a bout of severe diarrhea. Both

witnesses also responded to specific claims raised in the defense case including

W.P.'s alleged dislike of appellant and appellant's statement upon first learning of

the accusation. Appellant's cited case, State v. Leuin, is inapposite because the

error in that case was premised upon impermissible character evidence

presented upon rebuttal. State v. Leuin, 11 Ohio St.3d 172, 175, 464 N.E.2d

552, (1984) (per curiam).       Appellant cites no such impermissible character

evidence here, nor is there any such evidence in the record.
Richland County, Case No. 14CA62                                                       15


       {¶40} We find appellee's rebuttal testimony was limited to explaining,

refuting, and disproving new facts introduced into evidence by appellant and was

thus not improper. As appellant further points out in his third assignment of error,

defense trial counsel did not object to appellee's rebuttal testimony at trial. In

light of our analysis supra, however, this failure to object is not ineffective

assistance of counsel.

       {¶41} To succeed on a claim of ineffectiveness, a defendant must satisfy

a two-prong test. Initially, a defendant must show that trial counsel acted

incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984). In assessing such claims, “a court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).

“There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel

acted “outside the wide range of professionally competent assistance.” Id. at 690.

       {¶42} Even if a defendant shows that counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this

“actual prejudice” prong, the defendant must show that “there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.
Richland County, Case No. 14CA62                                                         16


       {¶43} In light of our determination that the rebuttal testimony was not

improperly admitted, we find defense trial counsel did not act incompetently in

failing to object thereto. Moreover, upon our review of this trial record, there is no

possibility that if the testimony was not admitted, the result of the trial would have

been different.

       {¶44} Appellant's second and third assignments of error are therefore

overruled.

                                             IV.

       {¶45} In his fourth assignment of error, appellant argues the trial court

erred in sentencing him to the maximum sentence. We disagree.

       {¶46} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–

4912, the Ohio Supreme Court established a two-step procedure for reviewing a

felony sentence. The first step is to “examine the sentencing court's compliance

with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If

the first step is satisfied, the second step requires the trial court's decision be

reviewed under an abuse-of-discretion standard. Id. We have recognized that

“[w]here the record lacks sufficient data to justify the sentence, the court may well

abuse its discretion by imposing that sentence without a suitable explanation.”

State v. Firouzmandi, 5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶ 52.

       {¶47} Subsequent to the Ohio Supreme Court's Foster decision, “[t]he

decision to impose the maximum sentence is simply part of the trial court's

overall discretion in issuing a felony sentence and is no longer tied to mandatory
Richland County, Case No. 14CA62                                                      17

fact-finding provisions.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–

Ohio–1281, ¶ 14.

      {¶48} In the instant case, the trial court merged Counts II and III with

Count I and sentenced appellant upon Count I. The mandatory prison term of 11

years is within the statutory range for the offense of forcible rape and is in

accordance with law. R.C. 2907.02(A)(2); R.C. 2929.14(A)(1).

      {¶49} In the instant case, on the record at the sentencing hearing, the trial

court noted it considered the purposes and principles of sentencing contained in

R.C. 2929.11 and considered the seriousness factors of R.C. 2929.12.

      {¶50} The trial court also cited a number of specific factors relevant to the

decision to impose a maximum sentence. The injury was exacerbated by the

victim's age; the victim suffered both physical and psychological harm; and the

relationship between the offender and the victim facilitated the offense. This

appellant also demonstrates the likelihood of recidivism because he was on

community control when he committed the offense, the terms of which he

violated by drinking and cohabitating with the victim's mother. Appellant has a

history of criminal convictions including an offense of violence and has not

responded to treatment. Finally, appellant demonstrated no remorse.

      {¶51} We find the sentence of the trial court is fully supported by the

record and does not constitute an abuse of discretion.

      {¶52} Appellant's fourth assignment of error is overruled.
Richland County, Case No. 14CA62                                          18


                               CONCLUSION

      {¶53} Appellant's four assignments of error are overruled and the

judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Farmer, J., concur.
