[Cite as State v. Grant, 2015-Ohio-5197.]


                                        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. John W. Wise, J.
-vs-
                                                  Case No. 2015 CA 0010
TIMOTHY GRANT

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 14 CR 497D


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        December 11, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

BAMBI COUCH PAGE                               RANDALL E. FRY
PROSECUTING ATTORNEY                           10 West Newlon Place
38 South Park Street                           Mansfield, Ohio 44902
Mansfield, Ohio 44902
Richland County, Case No. 2015 CA 0010                                                      2

Wise, J.

       {¶1}   Appellant Timothy Grant appeals his conviction for Rape entered in the

Richland County Court of Common Pleas following a trial by jury.

       {¶2}   Appellee is State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On June 10, 2003, the victim in this case, R.D., reported that she was raped

at gunpoint by a man she knew as "Darryl". (T. at 157-160, 201). The rape had taken

place inside Goodwill Store in Ontario, Ohio. (T. at 170). The victim had met the man,

later identified as Appellant, earlier in the day at a car wash in Mansfield. (T. at 195). She

knew him from seeing him previously at her sister-in-law's house, where individuals had

purchased drugs from him. (T. at 196). The victim talked to him and purchased marijuana

from Appellant while at the car wash. (T. at 197). She also arranged to meet him later at

the Goodwill Store because she also wanted to buy crack cocaine from him, and Appellant

did not have any with him at the car wash. (T. at 198).

       {¶4}   When the victim and Appellant met at the Goodwill Store, they went into a

unisex restroom so no one would see their drug transaction. (T. at 201). Once inside the

restroom, Appellant pointed a gun at her, told her to be quiet or he would kill her, and

forced her to have oral and vaginal intercourse with him without her consent. (T. at 201,

203, 205).

       {¶5}   After reporting the incident to her grandmother, the victim reported the

incident to the Ontario Police Department and went to the hospital for a SANE exam. (T.

at 208). A rape kit was completed by SANE nurse, Lisa Salser. (T. at 249-260).
Richland County, Case No. 2015 CA 0010                                                   3


Eventually, Officer Fetzer took the rape kit as evidence and logged it into the Ontario

evidence room. (T. at 162).

        {¶6}   At the time of her statements to police, the victim told Officer Mark Fetzer

that the man lived somewhere on Harmon Avenue, in Mansfield, Ohio. (T. at 160). Even

though R.D. went with officers over to Harmon Avenue and pointed out the man's house

(T. at 210), a woman living in the home denied anyone of the description given by the

victim lived in the house. (T. at 276). The case went cold and remained unsolved until

2013.

        {¶7}   In 2013, as part of the Sexual Assault Kit Initiative instituted by Ohio

Attorney General Michael De Wine, Detective Jon Sigler located the sexual assault kit

being held in the Ontario evidence room. (T. at 277). He sent the kit to the Ohio Attorney

General's Bureau of Criminal Investigation crime lab for testing. Heather Bizub, a DNA

analyst with the Ohio Attorney General's Bureau of Criminal Investigation received the

evidence kit. (T. at 337). Testing conducted on the items in the rape kit produced a CODIS

hit that identified Appellant as the major source of the DNA on the vaginal swabs. (T. at

343, 345-346).

        {¶8}   In February of 2014, Ms. Bizub notified the Ontario Police Department of

her findings and the CODIS hit. (T. at 279). Detective Sigler then compared the known

information about the suspect at the time of the crime with the information known about

Appellant. (T. at 281-282). That information appeared to match. Detective Sigler then

located Appellant to obtain a new DNA sample to confirm the CODIS hit. Id. He also

arranged to take a statement from Appellant, who denied he knew the victim or anything

about the case. (T. at 303, 305).
Richland County, Case No. 2015 CA 0010                                                    4


       {¶9}   Appellant did confirm, however, that he had lived at 323 Harmon Avenue,

Mansfield, Ohio. (T. at 302). The new DNA sample confirmed Appellant's identity as the

source of the DNA found by Ms. Bizub during her preliminary testing.

       {¶10} On August 12, 2014, Appellant was indicted on one count of Rape, in

violation of R.C. §2907.02(A)(2). As Appellant was incarcerated within the Ohio prison

system for other sexual assault crimes, Appellant was not arraigned upon the charges

until September 4, 2015.

       {¶11} On January 15 and 16, 2015, the matter proceeded to a jury trial. Following

deliberation, the jury found Appellant guilty of the crime of rape.

       {¶12} On January 20, 2015, the trial court sentenced Appellant to a prison term

often (10) years to be served consecutively to the other crimes for which Appellant was

already serving a sentence in the Ohio prison system. Appellant was also designated a

Tier III sex offender.

       {¶13} Appellant now appeals, raising the following error for review:

                                   ASSIGNMENT OF ERROR

       {¶14} “I. THE TRIAL COURT ERRED IN NOT PERMITTING THE APPELLANT'S

TRIAL COUNSEL TO RECALL OFFICER MARK FETZER FOR THE PURPOSE OF

SHOWING INCONSISTANT [sic] STATEMENTS MADE BY THE VICTIM.”

                                             I.

       {¶15} In his sole Assignment of Error, Appellant argues that the trial court erred

in denying his request to recall Officer Fetzer. We disagree.

       {¶16} At trial, counsel or Appellant attempted to cross-examine Officer Fetzer

with regard to statements made to him by the victim as to location of the crime. (T. at 166-
Richland County, Case No. 2015 CA 0010                                                   5


167). The State objected, arguing such testimony would be hearsay. (T. at 166). The trial

court sustained the objection.

        {¶17} The following exchange took place between counsel or Appellant and the

trial court:

        COURT: What does it say in the report she said?

        MR. CORLEY: Says she met the defendant at the car wash.
        COURT: Okay.
        MR. CORLEY: And then from there, Your Honor, the next question is what
        the other findings were in the report. It indicates that she asked him for
        weed. She wasn't wearing any panties.
        COURT: Can't you get that from the victim herself? And then if it turns out
        she says something different than what it says in those documents, you
        could bring him back in that case, couldn't you?
        MR. CORLEY: Yeah. Yeah.
        COURT: I would say that would probably be the better way to handle it.
        MR. CORLEY: I will just do that. I will reserve him for that, I guess.
        COURT: Because if you bring her in and she testifies these things aren't
        true and she told him something different, you know, unless you can show
        they are excited utterances or something like that, then I think it makes more
        sense to let her say it. And then if she doesn't, then you may be under some
        hearsay exception here.
        MR. CORLEY: All right. I will do that.
        COURT: All right. Thanks.

        (T. at 167-168).

        {¶18}   Counsel for Appellant did cross-examine the victim at trial. He asked her

about the statements she made to Officer Fetzer about the location of the car wash where

she met Appellant. (T. at 219). He also cross-examined her about how long she had

known Appellant prior to the rape. (T. at 234-236).
Richland County, Case No. 2015 CA 0010                                                      6


       {¶19} Trial counsel then requested that he be allowed to recall Officer Fetzer for

the purpose of impeaching the victim as to her testimony as it related to the location of

the car wash and the length of time she knew Appellant. The trial court denied the request.

       {¶20} The admission or exclusion of evidence at trial falls within the sound

discretion of the trial court. Evid.R. 104; State v. Heinish, 50 Ohio St.3d 231, 553 N.E.2d

1026 (1990). A trial court abuses its discretion when its decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

       {¶21} Hearsay is an out-of-court statement offered for the truth of the matter

asserted. Evid.R. 801(C). Generally, hearsay statements are inadmissible at trial unless

the statement comes in under a recognized exception. Campbell argues that he should

have been allowed to cross-examine Officer Coyne about his source for the information

contained in the report under the business records exception for hearsay contained in

Evid.R. 803(6) and the public records exception contained in Evid.R. 803(8).

       {¶22} Upon review, we find no prejudice to Appellant as a result of the trial court’s

denial. Neither the location of the car wash nor the length of time the victim had known

Appellant were materially relevant to the facts in this case. The rape itself occurred at the

Goodwill store, not the car wash. How long the victim had known Appellant was irrelevant.

Neither of these issues go to any of the elements of the offense of Rape in this matter.

       {¶23} Any testimony elicited from Officer Fetzer as to statements made to him by

the victim would have been based on hearsay statements and thus inadmissible.

Accordingly, the trial court did not abuse its discretion, nor violate Appellant's due process
Richland County, Case No. 2015 CA 0010                                             7


rights in prohibiting defense counsel's cross-examination of Officer Fetzer about the

victim’s earlier statements.

       {¶24} Based on the foregoing, we find Appellant's sole Assignment of Error not

well-taken and hereby overrule same.

       {¶25} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio is affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.




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