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Date: 11-07-2018

Case Style:


Case Number: 2017-CA-63

Judge: Michael L. Tucker


Plaintiff's Attorney: NATHANIEL R. LUKEN

Defendant's Attorney: DAVID R. MILES


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On February 27, 2017, a Greene County grand jury issued an indictment
against Lacey charging him with rape of a person under 13 years of age, a first degree
felony in violation of R.C. 2907.02(A)(1)(b); gross sexual imposition upon a person under
13 years of age, a third degree felony in violation of R.C. 2907.05(A)(4); and importuning
a person under 13 years of age to engage in sexual activity, a third degree felony in
violation of R.C. 2907.07(A). One person was the victim of the three offenses, all of
which were committed on December 23, 2016.
{¶ 3} Lacey pleaded not guilty at his arraignment. On September 12, 2017, Lacey
moved the trial court to order the victim to undergo an independent medical examination
for infection with a sexually transmitted disease.1 The court did not enter a decision on
1 In their briefs, the parties refer to “the [h]erpes [s]implex [v]irus” but do not specify the type. Appellant’s Br. 12;

Lacey’s motion, effectively overruling it. On September 22, 2017, the State moved the
court to allow the victim to testify with a facility dog. The court sustained the State’s
motion without discussion in an entry filed on September 25, 2017, roughly 90 minutes
before Lacey’s trial began.
{¶ 4} At the conclusion of the trial two days later, the jury found Lacey guilty as
charged. Lacey appeared for sentencing on December 20, 2017, at which time the trial
court sentenced him to serve concurrent terms of imprisonment of 10 years to life on the
charge of rape; 5 years on the charge of gross sexual imposition; and 5 years on the
charge of importuning, for an aggregate term of 10 years to life. As well, the court
advised Lacey that he would be subject to postrelease control and indicated that he would
be required to register as a Tier III sex offender. Lacey timely filed his notice of appeal
on December 26, 2017.
II. Analysis
{¶ 5} For his first assignment of error, Lacey contends that:
{¶ 6} Lacey challenges the jury’s verdicts, collectively, in three respects.
Appellant’s Br. 10-11. First, he observes that the State presented “no medical evidence
corroborating” the victim’s allegations that he engaged in sexual activity with her. Id. at
10. Second, he claims that the State failed to prove that he and the victim were ever
Appellee’s Br. 14.

alone together on December 23, 2016. Id. Third, he implies that the jury ignored or
overlooked evidence indicating that the victim fabricated her allegations against him.
See id. at 10-11.
{¶ 7} In a challenge based on the weight of the evidence, an “appellate court acts
as a ‘thirteenth juror.’ ” State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 49 (2d
Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Accordingly, the appellate court must review the record; weigh the evidence and all
reasonable inferences; consider the credibility of witnesses; and determine whether in
resolving conflicts in the evidence, the jury clearly lost its way and created a manifest
miscarriage of justice warranting a new trial. Thompkins at 387, citing State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist.
Montgomery No. 25172, 2013-Ohio-717, ¶ 8. The appellate court “may determine which
of several competing inferences suggested by the evidence should be preferred,”
although it “must defer to the factfinder’s decisions whether, and to what extent, to credit
the testimony of particular witnesses.” (Citation omitted.) State v. Cochran, 2d Dist.
Montgomery No. 27023, 2017-Ohio-216, ¶ 5. A trial court’s “judgment should be
reversed as being against the manifest weight of the evidence ‘only in the exceptional
case in which the evidence weighs heavily against [a] conviction.’ ” Hill at ¶ 8, quoting
Martin at 175.
{¶ 8} Lacey argues, first, that the jury clearly lost its way by finding him guilty
absent any evidence of physical injury to the victim. See Appellant’s Br. 10. On
December 27, 2016, the victim filed a report with the Fairborn Police Department, after
which a physician employed by Dayton Children’s Hospital performed a physical

examination. Trial Tr. 215:8-218:15 and 448:2-454:16. The physician, whom Lacey
called as one of his witnesses, determined the victim’s condition to be “normal” at that
time, finding “no signs of any injury.” Id. at 450:6-450:12.
{¶ 9} Whether signs of physical injury sustained by the victim on December 23,
2016, would have remained to be discovered four days later is not ascertainable from the
record; neither Lacey nor the State asked the physician about the effect, if any, that the
passage of time might have had on the results of the victim’s examination. Id. at 446:11
460:12. The physician, regardless, also testified that in comparable cases, the absence
of signs of physical injury is “not unusual at all,” whereas the presence of signs of physical
injury is unusual. Id. at 457:13-457:23. Given this testimony from Lacey’s own expert
witness, we cannot conclude that the jury clearly lost its way by finding Lacey guilty
despite the lack of evidence of physical injury to the victim.
{¶ 10} In the second part of his argument, Lacey asserts that there was “no
corroboration * * * that [the victim] and [he] were ever alone” together on December 23,
2016. Appellant’s Br. 10. Lacey appears to base his assertion largely on a statement
the victim made to a detective with the Fairborn Police Department, in which the victim
reported that Lacey had initiated sexual activity with her on December 23, 2016, at
approximately six o’clock in the evening. See Trial Tr. 179:12-179:18, 264:8-264:23 and
{¶ 11} Superficially, the record lends some support to Lacey’s argument. A
number of witnesses, including Lacey and the victim herself, provided testimony detailing
their respective movements on the day in question, and their cumulative testimony
suggests the following sequence of events:

1. Before or shortly after 10:00 a.m., the victim accompanied Lacey on a
work assignment (Lacey was employed as a tow-truck operator in December
2016). They returned to Lacey’s house at the conclusion of the assignment,
perhaps as late as 11:00 a.m.2
2. At or around the same time, Lacey’s mother arrived to launder her
clothes. She remained for roughly 30 minutes, during which Lacey took another
assignment, and left once Lacey returned.
3. Shortly afterward, Lacey brought the victim to the nearby home of his
adult cousin, where the victim waited while Lacey completed a third assignment.3
Roughly one hour later, Lacey and the victim returned to Lacey’s house.
4. At approximately 12:00 p.m., Lacey’s cousin finished work for the day
and drove from her place of employment to Lacey’s house, arriving between 12:30
and 1:00 p.m.
5. At approximately 1:00 p.m., Lacey’s fiancée arrived home after work.
6. Lacey and one or more other persons, including the victim, then
consumed marijuana, and Lacey’s fiancée cooked a pizza.
7. After eating, Lacey and his fiancée had an argument over money for
Christmas shopping. Lacey’s fiancée became upset and left the house, taking
Lacey’s child with her.
2 The victim had been an overnight guest at Lacey’s house since December 18, 2016. Trial Tr. 188:1-188:5 and 395:14-395:20.

3 The victim testified in passing that Lacey’s cousin was at home when Lacey dropped her off, though she subsequently seemed to testify that Lacey’s cousin was not there at that point. Trial Tr. 195:3-195:15 and 264:8266:14.

8. At approximately 3:00 p.m., Lacey’s cousin left.
9. Between 3:30 and 3:45 p.m., Lacey’s mother returned to the house to
finish her laundry. Before 5:00 p.m., Lacey’s fiancée returned.
10. Between 5:00 and 5:20 p.m., Lacey left to visit his cousin, and his
mother went home.
11. At approximately 5:30 p.m., Lacey’s fiancée, along with the victim and
Lacey’s child, traveled to Fairfield Commons to shop.4 On their way, Lacey’s
fiancée stopped at the house of one of Lacey’s co-workers to drop off Christmas
gifts, arriving between 5:30 and 5:45 p.m. While the victim and Lacey’s child
waited outside, Lacey’s fiancée entered the house to deliver the gifts to the co
worker’s wife. Lacey’s fiancée left her cellular telephone in her car.
12. At or around 6:09 p.m., Lacey called his fiancée. The victim entered
the house to tell Lacey’s fiancée that she was receiving a call.
13. Between 6:30 and 6:40 p.m., or perhaps somewhat earlier, Lacey’s
fiancée, the victim and Lacey’s child left for Fairfield Commons.
14. Between 7:00 and 7:30 p.m., Lacey arrived at his cousin’s house.
15. At approximately 8:16 p.m., the victim sent Lacey a text message,
apparently while shopping at Fairfield Commons. Between 8:16 p.m. and 9:30
p.m., Lacey’s fiancée, the victim and Lacey’s child returned to Lacey’s house.
16. At approximately 9:30 p.m., the victim’s mother and stepfather arrived
to pick up the victim.
4 Lacey had only one child at the time. See Trial Tr. 336:12-336:24.

See id. at 195:3-199:18, 207:18-208:25, 258:8-259:10, 264:8-266:18, 268:21-269:15,
335:19-336:24, 338:7-343:5, 349:14-356:20, 372:1-374:7, 376:23-379:14, 385:3-385:22,
386:10-386:12, 395:14-399:10, 400:7-405:4 and 435:14-438:20.
{¶ 12} The victim’s statement that Lacey initiated sexual activity at or around six
o’clock in the evening is difficult to reconcile with the foregoing chronology in two
significant respects: (1) Lacey’s fiancée testified that she, the victim and Lacey’s child did
not return to Lacey’s house between the time that they left to drop off Christmas gifts at
the residence of Lacey’s co-worker, and the time that they arrived at Fairfield Commons;
and (2) the victim testified that she had never been to the co-worker’s house.5 See id.
at 269:16-270:10 and 354:1-354:15. In its brief, the State argues, by implication, that
Lacey, his fiancée and his co-worker’s wife did not testify truthfully about the timing of
events between 5:00 p.m. and 7:30 p.m., thereby explaining the apparent conflict.
Appellee’s Br. 12-13.
{¶ 13} Yet, the record also supports an alternative explanation: the victim was
simply mistaken about the time that the sexual activity occurred. If Lacey initiated sexual
activity with the victim at approximately three o’clock in the afternoon, then the testimony
given by Lacey, his fiancée, his mother, his cousin and his co-worker’s wife regarding the
sequence of events on December 23, 2016, largely matches the corresponding testimony
given by the victim herself. The victim, in fact, testified that she was alone with Lacey at
approximately 3:00 p.m. that day, once Lacey’s cousin went home, and Lacey’s cousin
5 Of note, the victim testified that she knew Lacey’s co-worker, but not the co-worker’s wife. Trial Tr. 269:16269:17. Lacey’s fiancée and the co-worker’s wife make no reference to the presence of Lacey’s co-worker at the house when Lacey’s fiancée arrived to deliver gifts. Id. at 351:25-353:12 and 436:6-440:12. Assuming that Lacey’s co-worker was elsewhere at the time, the victim might have not known that Lacey’s fiancée had taken her to the coworker’s house.

testified that when she left Lacey’s house, Lacey’s fiancée was not there.6 Trial Tr.
198:7-199:18 and 377:11-378:21. Furthermore, the victim had not only consumed
marijuana throughout that same afternoon, but was also taking prescription anti
depressants. See id. at 196:19-200:5, 241:21-243:16 and 256:19-257:15.
{¶ 14} This alternative explanation resolves nearly all conflicts with respect to the
sequence of events on December 23, 2016, with one notable exception. Lacey’s mother
testified that when she arrived at Lacey’s house between 3:30 and 3:45 p.m. to finish her
laundry, Lacey’s cousin had “just pulled away,” by which she seems to have meant that
she saw Lacey’s cousin driving away from Lacey’s house. See id. at 372:4-372:17.
Even so, Lacey’s cousin testified that she left at 3:00 p.m., which conflicts with the
testimony of Lacey’s mother but accords with the victim’s testimony. Regardless,
Lacey’s mother was not asked to elaborate on this aspect of her testimony, leaving the
possibility—among others—that she had merely seen a vehicle resembling that which
she associated with Lacey’s cousin. See id. at 372:8-375:21.
{¶ 15} If the jury concluded that Lacey’s sexual activity with the victim occurred at
6:00 p.m., then it presumably did not fully credit the conflicting testimony of Lacey, Lacey’s
fiancée and the wife of Lacey’s co-worker. Alternatively, the jury might have considered
the various witnesses’ accounts of events and concluded that the sexual activity occurred
earlier in the day. We are obligated to “defer to the factfinder’s decisions whether, and
to what extent, to credit the testimony of particular witnesses.” Cochran, 2d Dist.
Montgomery No. 27023, 2017-Ohio-216, at ¶ 5. Because the evidence presented to the
6 Lacey’s cousin stated that she “believe[d]” that Lacey’s child was still in the house, as well. Trial Tr. 377:18378:23.

jury could reasonably be construed to support either of these conclusions—depending in
part on the jury’s decisions concerning the witnesses’ credibility—we hold that the jury
did not clearly lose its way in finding Lacey guilty despite the uncertainty regarding the
exact time at which the sexual activity occurred.
{¶ 16} In the third part of his argument, Lacey posits that the jury overlooked
evidence suggesting that the victim fabricated her allegations against him. Appellant’s
Br. 10-11. The jury, however, also received evidence in the form of testimony from the
victim’s mother and the victim’s aunt establishing that the victim’s typical behavioral
patterns were disrupted in the days following December 23, 2016, as well as the recording
of a telephone conversation between the victim and Lacey that was monitored by
members of the Fairborn Police Department. Trial Tr. 220:8-221:15, 295:21-296:6,
305:20-306:11 and 422:21-429:14. During his monitored conversation with the victim,
Lacey made several statements in which he seemed to acknowledge his guilt. See id.
at 422:21-429:14. Inasmuch as the jury’s evaluation of this evidence was essentially an
assessment of the witnesses’ credibility, we hold that the jury did not clearly lose its way
by finding Lacey guilty.
{¶ 17} Although the State did not present evidence that the victim suffered physical
injury, Lacey’s own expert testified that medical examinations typically do not result in the
discovery of signs of physical injury in comparable cases. The evidence, moreover,
supported a determination that Lacey had an opportunity to commit the offenses for which
he was convicted, and we must defer to the jury’s decision to credit the victim’s testimony
over that of Lacey himself. For all of the foregoing reasons, Lacey’s first assignment of
error is overruled.

{¶ 18} For his second assignment of error, Lacey contends that:
{¶ 19} On September 12, 2017, Lacey filed a motion in which he requested that
the trial court order the victim to undergo an independent medical examination for
infection with herpes simplex virus. The court never entered a formal decision in
response, thereby overruling the motion by default. Lacey argues that the court erred by
overruling the motion.
{¶ 20} We find that the trial court did not err by overruling the motion under the
circumstances of this case. See e.g., State v. Giles, 8th Dist. Cuyahoga No. 65731, 1994
WL 372330, *8 (July 14, 1994); State v. Wolfe, 81 Ohio App.3d 624, 630, 611 N.E.2d 976
(11th Dist.1992), citing State v. Boston, 46 Ohio St.3d 108, 131, 545 N.E.2d 1220 (1989).
In Wolfe, the Eleventh District Court of Appeals found that, in accordance with the Ohio
Supreme Court’s holding in Boston, a defendant may not offer “expert opinion testimony
to attack [a] child victim’s veracity or to show that the child was susceptible to suggestion
or influence and is lying.” Wolfe at 630. Here, Lacey sought to have the victim tested
for infection with herpes simplex virus in an attempt to contest the veracity of the victim’s
allegations—or, in his words, to assist the jury in its “search for the truth.” See
Appellant’s Br. 13.
{¶ 21} Lacey’s fiancée testified that she and Lacey are infected with the virus, and
in his brief, Lacey argues that if the victim had tested positive for infection with the virus,

then the result would have been “outcome determinative,” or in other words, proved
Lacey’s guilt. Trial Tr. 357:22-358:15; see Appellant’s Br. 13. A negative result, on the
other hand, would not necessarily have assisted the jury in its “search for the truth”
because, as the State’s expert witness testified, “there are numerous cases” in which
persons are exposed to the virus but do not become infected. Trial Tr. 466:10-467:9.
Thus, irrespective of whether a positive result would have proven Lacey’s guilt, a negative
result would have unfairly influenced the jury’s perception of the victim’s credibility.
{¶ 22} Lacey’s citation to the opinion of the First District Court of Appeals in State
v. Hill, 59 Ohio App.3d 31, 570 N.E.2d 1138 (1st Dist.1989), is inapposite; in Hill, the First
District considered a trial court’s ruling on a motion for paternity testing pursuant to R.C.
2317.47 for the purpose of determining the identity of an alleged rapist. Hill at 32;
Appellant’s Br. 13. By contrast, the examination sought by Lacey in the instant matter
was not authorized by any provision of the Revised Code. Lacey’s second assignment
of error is overruled.
{¶ 23} For his third assignment of error, Lacey contends that:
{¶ 24} Finally, Lacey argues that the trial court erred by sustaining the State’s
motion to allow the victim to testify with a facility dog. Lacey insists that the dog’s
presence invested the victim’s testimony with greater credibility than it would have had
otherwise, and he criticizes the trial court for ruling on the motion without analysis and
without allowing him an opportunity to respond. Appellant’s Br. 14-15. Lacey did not
object at trial to the use of the dog, so we review only for plain error. See State v.

Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).
{¶ 25} Apart from “plain error,” an appellate court “ ‘ “will not consider any error
* * * not call[ed] to the trial court’s attention at a time when [the] error could have been
avoided or corrected.” ’ ” (Citation omitted.) See State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15-16, quoting State v. Awan, 22 Ohio St.3d 120,
122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545
(1968), paragraph three of the syllabus. By the plain-error standard, reversal is
warranted only if “the outcome of the trial would clearly have been different” but for the
alleged error. See Waddell at 166.
{¶ 26} The State remarks in its brief that “the record is not clear [whether] the
facility dog was even used.” Appellee’s Br. 18. Although the trial court introduced the
dog and his handler to the prospective jurors at the beginning of voir dire, the record
includes no further mention of the dog. See Trial Tr. 7:12-7:19 and 182:24-292:15. In
the absence of any definitive indication, we presume that the dog was present with the
victim while she testified.
{¶ 27} On review, we find no basis on which to conclude that the use of the facility
dog affected the outcome of Lacey’s trial. The fact that the only reference to the dog
was made during voir dire suggests that the dog’s behavior during the trial had no
noticeable impact on the proceedings, and without evidence to the contrary, Lacey cannot
show that the result of the trial would have been different had the trial court overruled the
State’s motion for permission to use the dog. In addition, the use of facility dogs in similar
cases has been approved by Ohio courts and by courts in other states. See, e.g., State
v. Hasenyager, 2016-Ohio-3540, 67 N.E.3d 132, ¶ 7-12 (9th Dist.), appeal not accepted,

147 Ohio St.3d 1474, 2016-Ohio-8438, 65 N.E.3d 778; State v. Millis, 242 Ariz. 33, 391
P.3d 1225, ¶ 27-33 (2017); State v. Reyes, 505 S.W.3d 890, 895-898
(Tenn.Crim.App.2016); People v. Chenault, 227 Cal.App.4th 1503, 1514-1523, 175
Cal.Rptr.3d 1 (2014). Lacey’s third assignment of error is overruled.

Outcome: We find that the jury’s verdicts were not against the manifest weight of the
evidence, and further, we find that the trial court did not err either by failing to sustain Lacey’s motion for a medical examination of the victim, or by allowing the victim to testify with a facility dog. There of Lacey’s convictions are affirmed.

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