Youngstown Daily Legal News

Rape of step-daughter conviction upheld

JESSICA SHAMBAUGH
Special to the Legal News
Published: August 6, 2013

The 10th District Court of Appeals recently affirmed Robert Roush’s convictions for raping his stepdaughter but ruled the trial court must make specific findings before issuing consecutive sentences.

The three-judge appellate panel rejected Roush’s claims that his convictions for gross sexual imposition, rape and disseminating matter harmful to a juvenile were against the manifest weight of the evidence.

According to the facts of the case, Roush married M.R. in October 2007 when her daughter, K.R. was 8 years old.

The three moved into a house near Bixby Road and K.R. testified that Roush began sexually abusing her shortly after the marriage.

She stated that she would get home from school at 3 p.m. and her mother would get home from work around 5 p.m.

During those hours, she described Roush touching her breasts “more than one time” with both his hands and his mouth, raping her “more than one time” and showing her pornographic DVDs.

She told the court these situations happened “a whole lot of times” but she wasn’t sure how many because she “tries to forget.”

In July 2010, K.R. was 11 and went to stay with her father in Tennessee.

While she was there she went to see a doctor, Humberto Rodriguez, because her genitals “were burning.”

The doctor found visible lesions and testing showed that K.R. had genital herpes. She then told her mother that Roush had been abusing her.

M.R. testified Roush admitted to touching her daughter and tried to convince her to help him “make it appear as though K.R. had falsely accused” him.

She said he suggested paying the babysitter to say K.R. had been out with older boys or “go out and get a prostitute” so that he could catch another sexually transmitted disease to “serve as evidence that defendant had not had sex with K.R.”

Blood tests revealed that Roush had antibodies that form after someone is exposed to genital herpes and police found the DVDs, a vibrator and KY Jelly described by K.R. in his house.

Roush was charged with gross sexual imposition, disseminating porn to a minor and rape.

A Franklin County Court of Common Pleas jury found him guilty of all counts and he proceeded to sentencing.

The trial court ordered Roush to serve sentences for gross sexual imposition and rape consecutively, resulting in an aggregate prison term of 70 years to life.

On appeal to the 10th District, Roush argued that his convictions were against the manifest weight of the evidence, his convictions for gross sexual imposition and rape should have merged and the trial court erred by issuing consecutive sentences.

The appellate judges found that when K.R. testified at the trial, detailing the acts of sexual abuse, she gave detailed descriptions of the DVD, vibrator and lubricant that were later found in Roush’s home and that she had tested positive for genital herpes.

Rodriguez testified that in his experience it was not uncommon for girls like K.R. to remain silent for a time about abuse and that she had abrasions inside her vagina and genital herpes.

They further determined that M.R. offered testimony that corroborated her daughter’s version of the events.

Roush argued that M.R. and K.R. were not credible and that his mother and his sister, who testified that K.R. made up the story because she was jealous of Roush, were more credible.

“The instant case was tried to a jury,” 10th District Judge John Connor wrote for the court. “Determinations regarding credibility and the weight of the evidence remain within the province of the jury.”

The judges maintained that the testimony from the doctor, the alleged victim and the girl’s mother outweighed the testimony from Roush’s family.

“Engaging in the limited weighing of the evidence which we are permitted, we cannot say the jury clearly lost its way when it found defendant guilty of four counts of gross sexual imposition, one count of disseminating a matter harmful to a juvenile and five counts of rape, beyond a reasonable doubt,” Judge Connor stated.

The judges agreed with Roush that he could not be convicted of both rape and gross sexual imposition if those offenses came from the same conduct.

However, they determined K.R.’s testimony supported that Roush had sexual contact with her breasts and that he raped her separately.

They ruled there was not evidence to support that the acts happened concurrently and overruled his claim that they should merge.

Roush further argued that under the Ohio Revised Code, his trial court was required to make specific findings before issuing consecutive sentences.

The appellate court found that R.C. 2929.14(C)(4) was put into effect prior to Roush’s sentencing but after he committed his alleged offenses.

It ruled that under Ohio law, the statute should apply to any defendant whose punishment may be reduced if the trial court were required to make the findings.

The judges ruled Roush’s sentence may be decreased by the findings and determined that the trial court did not make any of them.

“Because the trial court sentenced defendant after the effective date of H.B. No. 86, and failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences, we must vacate defendant’s sentence and remand the case for resentencing,” Judge Connor stated.

“On remand, the trial court must determine whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and enter the required findings on the record.”

Judge Susan Brown and retired Judge John McCormac joined Judge Connor to form the majority.

The case is cited State v. Roush, case No. 2013-Ohio-3162.

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