[Cite as State v. Jamison, 2014-Ohio-3275.]




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


State of Ohio                                         Court of Appeals No. L-12-1274

        Appellee                                      Trial Court No. CR0201101607

v.

Ricky Jamison                                         DECISION AND JUDGMENT

        Appellant                                     Decided: July 25, 2014

                                              * * * * *`

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas, which found appellant guilty of three counts of rape, in violation of R.C.

2907.02(A)(2) and (B), all felonies of the first degree, and one count of kidnapping a

minor under the age of 13 or a mentally incompetent individual, in violation of R.C.
2905.01(A)(4) and (C), also a felony of the first degree. Following jury trial, appellant

was convicted on all counts and sentenced to ten-year terms of incarceration for each of

the four counts, to be served consecutively. For the reasons set forth below, this court

affirms the judgment of the trial court.

         {¶ 2} Appellant, Ricky Jamison, sets forth the following four assignments of

error:

                I. The Trial Court erred by allowing Appellee to use leading

         questions on direct examination of the victim at trial.

                II. The Trial Court erred by allowing duplicative and inflammatory

         photographs to be admitted as evidence.

                III. Appellee failed to provide legally sufficient evidence at trial to

         sustain a conviction on three counts of rape.

                IV. Appellant’s convictions fell against the manifest weight of

         evidence.

         {¶ 3} The following undisputed facts are relevant to this appeal. This case arises

from the kidnapping and vicious rape over the course of many hours of a girl who was

playing outside of her home in a Toledo neighborhood. At approximately 5:00 p.m. on

March 3, 2011, the victim’s mother arrived home from work. The victim was eager to go

outside and play. The victim is significantly developmentally delayed. She was 14 years

of age at the time of the incident and possessed the cognitive functioning of a child

approximately one-half her chronological age.




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       {¶ 4} On March 3, 2011, the victim asked her mother if she could go outside and

walk the neighbor’s dog. The victim’s mother gave her permission to do so. The

victim’s mother realized that when her daughter said she wanted to “walk the dog,” the

victim meant she wanted to retrieve the neighbor’s dog, bring it home, and play with the

dog in her yard. Due to her circumstances, the victim was not allowed to walk around the

block by herself. Notably, the victim required occupational therapy, physical therapy,

speech therapy, and special needs classes. She was exempt from the standardized testing

required by Ohio schools.

       {¶ 5} It is illuminating to note that the victim’s studies were centered on

rudimentary tasks such as speaking in complete sentences, following basic directions, and

asking for a sight menu at McDonald’s so that she could order for herself.

       {¶ 6} Although the victim’s cognitive limitations prevented her from

understanding and participating in the things that other children her same chronological

age typically do, she always enjoyed activities such as pushing a stroller with her dolls

inside, playing school, and playing dress-up.

       {¶ 7} At 6:30 p.m., the victim’s mother became concerned as her daughter had

not returned inside the home. She began to look for her daughter throughout the

neighborhood at neighbors’ homes and at a senior citizen facility that is in close

proximity to the victim’s house. The victim enjoyed visiting with the senior citizens at

the senior citizen residential facility. After failing to locate her daughter after several

hours of frantic searching, her mother called the police.




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       {¶ 8} At approximately 4:30 p.m. the day after the victim disappeared, a Maumee

High School student discovered the disheveled and disoriented victim near the Andover

Apartment complex located along the border of Maumee and Toledo. The victim had

visible marks on her neck. The victim was distraught and stated that “he hurt me,” “I told

him no, mommy, and he grabbed me by the neck and put me in the car.”

       {¶ 9} Given the victim’s condition, she was taken to Toledo Hospital. She was

treated by a Sexual Assault Nurse Examiner (“SANE nurse”). The SANE nurse “could

tell right away” that the victim was not a typical 14 year old because she was “very

childlike in her mannerisms, in her speech, the way she talked.” The SANE nurse took

the victim’s medical history and performed a complete “head to toe assessment.” The

SANE nurse determined that a sexual assault examination was required.

       {¶ 10} Accordingly, the SANE nurse took oral swabs, fingernail swabs, vaginal

swabs, anal swabs, and combed the victim’s pubic hair. Additionally, a blue light, which

luminesced on bodily fluids, was utilized. It revealed bodily fluids on the left side of the

victim’s chin, upper right arm, buttocks, and mons pubis. Thus, all of these areas were

also swabbed. Lastly, the SANE nurse collected the victim’s clothing, including her

underwear, which was inside out and stained with dried blood and drainage.

       {¶ 11} Significantly, during the examination, the victim voluntarily disclosed to

the SANE nurse portions of what had occurred to her after she went missing. The victim

stated, “he grabbed my key around my neck” and “he put his boy privates in my mouth.”




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Additionally, as the SANE nurse assessed the victim’s vulva, the victim stated that he

“put his boy privates in there.”

       {¶ 12} The victim further shared with the SANE nurse that she kept crying during

her ordeal and told her attacker repeatedly that she wanted to go home. She stated “I kept

crying and telling him I wanted to go home; I didn’t sleep or eat anything; he wouldn’t let

me go home; he took my pants off and he pushed me down.”

       {¶ 13} The physical examination revealed that the victim had lacerations in the

area of her hymen, redness and tenderness at the clitoral hood, abrasions to her labia

minora, and redness, abrasions and tenderness on the posterior fourchette. Notably, the

victim continued to bleed throughout the examination. At trial, the treating SANE nurse

authenticated and discussed twelve photographs that were taken of the victim’s injuries

during her examination.

       {¶ 14} In addition to the SANE nurse, treating physician Dr. Schlievert testified

for the prosecution as an expert witness in pediatric abuse and neglect. Schlievert

testified in relevant part that the victim, “definitely was developmentally delayed,” and

was, “significantly much younger in her demeanor, behavior, expressions, and language

and speech.” He noted that the victim required reassurances similar to children who are

four or five years old that she would not need shots during the doctor’s office visit.

Schlievert also testified that the victim stated to him that, “he put his—she didn’t want to

say it at first but then she said pee pee in her front butt.” The victim further disclosed to




5.
Schlievert that “he made me suck it.” Based upon his assessment of what was done to the

victim, Schlievert recommended H.I.V. testing.

       {¶ 15} In conjunction with testimony from medical providers, the prosecution also

called an expert in forensic biology and forensic DNA typing employed by the Ohio

Bureau of Criminal Identification and Investigation (“BCI”). The BCI witness testified

that the semen that was detected on the vaginal and anal swabs in the rape kit, and

amylase (an enzyme present in high concentrations of saliva) was detected on the neck

and buttocks swabs. A comparison of the vaginal and anal swabs to a reference sample

from the victim showed the presence of the victim’s DNA, as well as an unknown male.

The unknown male’s profile was entered into the national database, which triggered the

investigation of appellant’s role in the kidnapping and rape of the victim.

       {¶ 16} Given these developments in the case, DNA was obtained from appellant.

It was submitted to BCI for testing. Appellant’s DNA was a match to the perpetrator’s

DNA.

       {¶ 17} The BCI witness testified in pertinent part, “Based on the national

database provided by the Federal Bureau of Investigation, the expected frequency of

occurrence of the DNA profile from the sperm fraction of the vaginal swabs * * * is 1 in

121,200,000,000,000,000 unrelated individuals.”

       {¶ 18} Consistently, the anal swab also resulted in two DNA profiles, one

matching the victim and one matching appellant. The BCI witness testified, “Based on

the national database provided by the Federal Bureau of Investigation, the expected




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frequency of occurrence of the DNA profile from the sperm fraction of the anal swabs

* * * is 1 in 8,203,000,000,000,000,000 unrelated individuals.”

       {¶ 19} At trial, the victim testified that when she was walking her baby doll in a

stroller, a bald stranger got out of a car, grabbed her by the neck, choked her, and forced

her into the car.

       {¶ 20} A detective with the Toledo Police department testified that the victim was

discovered near the Andover Apartment complex, which is in close proximity to

appellant’s apartment. The detective testified that after appellant was identified by BCI

as the source of the semen from the swabs taken from the victim, a search warrant was

executed upon appellant’s apartment.

       {¶ 21} During the search of appellant’s apartment, a pillow on the couch that

matched one depicted in a photograph found on the victim’s mobile phone was

recovered. The couch, chairs, table, and thermostat on the wall were in the same exact

locations as reflected in the victim’s mobile phone photos. All of this further supported

the already substantial evidence collected that appellant was the perpetrator of these

crimes.

       {¶ 22} After the search of appellant’s apartment was concluded, appellant was

taken into police custody. During the investigative interview of appellant, appellant was

shown photographs of the victim and was asked why his DNA would have been

recovered from the victim’s person. Appellant unconvincingly conveyed that he




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sometimes picked up women and had sex with them but might not recall the women

afterwards.

       {¶ 23} Ultimately, appellant conceded to the investigating officers that he was

riding around in his friend’s car when they saw the victim walking alone in the area

where the victim resided. Appellant stated that they had innocently asked the girl

“what’s up,” and in response, she jumped into their car, he drove her to his apartment,

and she said she wanted to make love. Appellant stated that he told her she looked kind

of young, but said that she replied that she was 18 years old. Appellant stated that they

attempted intercourse, but she was “real tight” and he could not penetrate her. Upon

attempting penetration again, she was still “too tight.” He volunteered that due to her

tightness he “came quick.”

       {¶ 24} Appellant unconvincingly proclaimed at trial that the prosecution had been

“all lies” and had been “fabricated.” With respect to the incriminating photos, separate

and apart from the multiple DNA matches, appellant hypothesized that the police had

somehow staged the photos inside his apartment with the victim on his couch to set him

up.

       {¶ 25} The jury was not convinced. The trial concluded and the jury found

appellant guilty of all counts. This appeal ensued.

       {¶ 26} In the first assignment of error, appellant contends that the trial court erred

by abusing its discretion in allowing appellee to ask leading questions of the victim on

direct examination. We are not persuaded. The record shows that the trial court properly




8.
permitted leading questions on direct examination pursuant to Evid.R. 611(c). The

victim is significantly developmentally delayed, which necessitated questions for her to

be posed in a more leading fashion than would be necessary for a witness not having her

cognitive limitations.

       {¶ 27} Evid.R. 611(c) permits the use of leading questions “as may be necessary to

develop the witness’ testimony.” Evid.R. 611(c) is broad and leaves the limits of the use

of leading questions on direct examination within the sound discretion of the trial court.

State v. Lewis, 4 Ohio App.3d 275, 278, 448 N.E.2d 487 (3d Dist.1982).

       {¶ 28} The record reflects that multiple medical professionals familiar with the

victim and the victim’s mother all testified that the victim functioned at a far lower level

than fully functioning individuals her same age. Thus, the intellectual capability of the

victim properly formed a justification in warranting the disputed leading questions to her

on direct examination. See State v. Jones, 2d Dist. Montgomery No. 17903, 2000 WL

1006557 (July 21, 2000) (court upheld the use of leading questions when the victim was

14 years old at the time of trial but functioned at the mental level of a 7-year-old child).

       {¶ 29} The record reflects that appellant’s claim that there was no testimony of

anyone qualified to judge the mental capabilities of developmentally delayed children is

without merit. On the contrary, two treating medical expert witnesses testified to the

victim’s delayed developmental state. The content of victim’s own testimony

corroborated the expert witnesses’ assessment of her limitations.




9.
       {¶ 30} Ohio caselaw consistently reflects that courts permit leading questions in

cases such as this one, particularly in cases involving sexual offenses against minors.

State v. Rector, 7th Dist. No. 01 AP 758, 2002-Ohio-7442, ¶ 30. See State v. Miller, 44

Ohio App.3d 42, 541 N.E.2d 105 (6th Dist.1988); State v. Madden, 15 Ohio App.3d 130,

472 N.E.2d 1126 (12th Dist.1984); State v. Matheny, 5th Dist. Tuscarawas No.

2001AP070069, 2002 WL 386163 (Mar. 6, 2002); State v. Mader, 8th Dist. Cuyahoga

No. 78200, 2001 WL 1002365 (Aug. 30, 2001); State v. Pegram, 7th Dist. Mahoning No.

95 C.A. 80, 1998 WL 30141 (Jan. 22, 1998); State v. Hutton, 7th Dist. Belmont No. 93-

B-2, 1995 WL 516962 (Aug. 30, 1995).

       {¶ 31} We cannot find the trial court’s decision to permit leading questions of the

victim under the facts and circumstances of this case to be unreasonable, arbitrary or

unconscionable. Wherefore, we find appellant’s first assignment of error not well-taken.

       {¶ 32} In the second assignment of error, appellant contends that the trial court

erred in admitting certain photos of the victim’s physical injuries at trial. Pursuant to

Evid.R. 403 and 611(A), the admission of photographs lies within the sound discretion of

the trial court. State v. Williams, 74 Ohio St.3d 569, 574, 660 N.E.2d 724 (1996).

       {¶ 33} Photographs depicting the nature and severity of injuries are probative of

the offender’s intent. Id. at 575. Several of the disputed photographs are close-ups of

other photographs. Close-ups were necessary to enable the viewer to be able to see the

injuries to the hymen, posterior fourchette and source of the bleeding in the vulva area.

The injuries that were visible only in the close-ups included swelling, redness and acute




10.
bruising. A different view or close-up of an injury may be introduced, which cannot be

seen in other photographs, to depict a different aspect of the victim’s injuries. See State

v. Tibbetts, 92 Ohio St.3d 146, 157, 749 N.E.2d 226 (2001).

       {¶ 34} The record reflects the disputed photos were necessary to accurately reflect

the nature and extent of the victim’s injuries which could not be fully seen or appreciated

in the other photos presented. As such, they were permissible. Wherefore, we find

appellant’s second assignment of error not well-taken.

       {¶ 35} In the third assignment of error, appellant contends that appellee failed to

provide legally sufficient evidence to sustain a conviction on three counts of rape.

Crim.R. 29(A) requires a trial court to order an acquittal “if the evidence is insufficient to

sustain a conviction of such offense or offenses.” However, if the record demonstrates

that reasonable minds may reach differing conclusions as to the proof of the material

elements of a crime, a trial court may not grant a Crim.R. 29(A) motion for acquittal.

State v. Bridgeman, 55 Ohio St.2d 261, 263, 381 N.E.2d 184 (1978).

       {¶ 36} The record unequivocally reflects that appellant’s convictions of three

counts of rape and one count of kidnapping were based upon far more than sufficient

evidence. The record encompasses ample evidence of appellant’s guilt, including

multiple DNA matches and extensive expert testimony, all of which was corroborated by

the testimony of the investigating officers and the victim. Appellant’s claims suggesting

that the victim was somehow the instigator and a willing participant in these events are

unsupported, unilateral, and absolutely belie the record of evidence.




11.
       {¶ 37} The record in this case demonstrates that a developmentally delayed girl

was walking near her home when appellant forced her into a car, transported her to his

apartment, and brutally raped her. The record contains overwhelming evidence of her

severe injuries and a multitude of DNA matches to appellant, verifying his infliction of

those injuries.

       {¶ 38} Wherefore, we find appellant’s third assignment of error not well-taken.

       {¶ 39} In the fourth assignment of error, appellant states the convictions fell

against the manifest weight of evidence. A manifest weight challenge questions whether

the state has met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). In making this determination, the appellate court sits as a

“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 reversed and a new trial

ordered.” Id. at 386. “The discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 40} We have carefully reviewed the record in its entirety. Our review of the

record reveals no evidence that the fact-finder lost its way or created a manifest

miscarriage of justice. On the contrary, the record reflects ample objective evidence of

appellant’s guilt ranging from multiple DNA matches to appellant of the semen and




12.
saliva recovered from the victim, photographic evidence of the severe physical injuries

inflicted upon her during the rape, police testimony, expert medical witness testimony,

and victim testimony, all consistently demonstrating appellant’s guilt of kidnapping and

rape.

        {¶ 41} Wherefore, we find appellant’s fourth assignment of error not well-taken.

        {¶ 42} Based upon the foregoing, we find that substantial justice has been done in

this matter. The judgment of the Lucas County Court of Common Pleas is hereby

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
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, P.J.                                  JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


             This decision is subject to further editing by the Supreme Court of
        Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
             version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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