Darrin Pordash v. Stuart Hudson ( 2010 )


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  •                                        File Name: 10a0427n.06
    
                           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    
                                                 No. 07-4141
    
                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                                                                                 FILED
    DARRIN PORDASH,                                                                           Jul 13, 2010
                                                                                       LEONARD GREEN, Clerk
              Petitioner
    
    v.                                                           ON APPEAL FROM THE
                                                                 UNITED STATES DISTRICT
    STEWART HUDSON, Warden,                                      COURT FOR THE NORTHERN
                                                                 DISTRICT OF OHIO
              Respondent
    
    
                                                            /
    
    Before:          MARTIN, RYAN, and KETHLEDGE, Circuit Judges.
    
              BOYCE F. MARTIN, JR., Circuit Judge. Darrin Pordash appeals the United States District
    
    Court for the Northern District of Ohio’s denial of habeas relief. Pordash contends that the Ninth
    
    Appellate District Court of Ohio applied a lowered force standard in upholding his rape and sexual
    
    battery conviction in regards to his patient, J.B., and, thus, that his due process rights were violated.
    
    Viewing the evidence in a light most favorable to the prosecution, a rationale trier of fact could have
    
    found that the force element of rape was adequately demonstrated beyond a reasonable doubt and
    
    that no constitutional violation occurred. Thus, we affirm the district court’s denial of habeas relief.
    Pordash v. Hudson
    07-4141
    Page 2
    
                                                      I.1
    
           Darrin Pordash was a chiropractor in Sheffield Village, Ohio. During a three-month span
    
    in 2002, Pordash allegedly raped and sexually battered three different female patients, E.L, J.B., and
    
    L.R., in a similar manner. The three women, whose stories were essentially the same, reported him
    
    without knowledge of the other womens’ assault charges.
    
           J.B., in particular, testified that, while Pordash was massaging and making adjustments to
    
    her back, he massaged her lower back, her buttocks, and rubbed her vagina through her clothing.
    
    She testified that she was confused by this action and didn’t respond. Then, Pordash suddenly
    
    slipped his fingers down the waistband of her pants and inserted his fingers into her vagina for a few
    
    seconds.
    
           In each instance, the victim testified that, while Pordash was not holding her down at the time
    
    of the assault, his hand was on her back throughout the encounter, indicating dominance.
    
    Additionally, each woman testified that she was aware that Pordash had an extensive background
    
    in martial arts and that she feared that resisting him would lead to serious bodily harm.
    
           At trial, Pordash admitted that the encounters occurred, but he alleged that the acts were
    
    consensual. He moved for acquittal at the close of the prosecution’s case and again at the end of
    
    trial, claiming that the State had failed to prove the element of force required for his conviction. The
    
    trial court denied both his motions, finding that sufficient evidence had been presented, and it sent
    
    the case to the jury. On March 17, 2004, the jury found Pordash guilty on three counts of rape and
    
    
           1
          Facts are drawn from the district court and state court opinions. See Pordash v. Hudson, No.
    1:06CV836, 
    2007 WL 2229833
    , at *1 (N.D. Ohio July 31, 2007); State v. Pordash, No.
    04CA008480, 
    2004 WL 2600461
    , at *1 (Ohio App. Ct. Nov. 17, 2004).
    Pordash v. Hudson
    07-4141
    Page 3
    
    three counts of sexual battery. Pordash was sentenced to 108 months incarceration. The court found
    
    that the sexual battery convictions were allied offenses and imposed no additional sentence.
    
           Pordash appealed to the Ninth Appellate District of Ohio, which affirmed his conviction and
    
    sentence. Pordash, 
    2004 WL 2600461
    , at *7. He then appealed to the Ohio Supreme Court, which
    
    declined to hear his appeal.
    
           On April 7, 2006, Pordash petitioned for a writ of habeas corpus in the United States District
    
    Court for the Northern District of Ohio. On December 19, a magistrate judge recommended that
    
    Pordash’s petition be denied except for his fifth claim challenging the sufficiency of the evidence
    
    in regards to J.B. On July 31, 2007, the district judge denied Pordash’s petition on all claims,
    
    agreeing with the magistrate for the most part, but finding that the magistrate had employed the
    
    wrong standard in determining the sufficiency of the force element of rape and that sufficient
    
    evidence existed to convict Pordash of J.B.’s rape and sexual battery.
    
           Pordash timely appealed.
    
                                                     II.
    
           In a sufficiency of evidence claim, we determine whether, viewing the trial testimony and
    
    exhibits in the light most favorable to the prosecution, and without reweighing the evidence or
    
    substituting our own judgment for that of the jury, any rational trier of fact could have found the
    
    essential elements of the crime beyond a reasonable doubt. Brown v. Konteh, 
    567 F.3d 191
    , 205 (6th
    
    Cir. 2009). Even if we determine that a rationale trier of fact could not have found the essential
    
    elements of the crime, we must defer to the state appellate court’s contrary sufficiency determination
    
    so long as it is not unreasonable. Id.
    Pordash v. Hudson
    07-4141
    Page 4
    
            Our review is “limited to deciding whether a conviction violated the Constitution, laws, or
    
    treaties of the United States.” Estelle v. McGuire, 
    502 U.S. 62
    , 67-68 (1991). Thus, short of a
    
    constitutional violation, we do not review the state court’s application of state laws in finding that
    
    the state proved the element of force necessary to convict Pordash.
    
                                                      III.
    
            Pordash claims that the prosecutor failed to establish the element of force at the trial and that
    
    the reviewing Ohio appellate court improperly invoked a definition of force that applies to sexual
    
    offenses against minors rather than adults in upholding the trial court’s finding. He further claims
    
    that the state’s failure to properly apply its own laws in upholding the conviction is a violation of his
    
    constitutional due process right.
    
            Under Ohio law, it is illegal for a person to “engage in sexual conduct with another when the
    
    offended purposely compels the other person to submit by force or threat of force.” O.R.C.
    
    §2907.02(A)(2). Ohio statute defines force as “any violence, compulsion, or constraint physically
    
    exerted by any means upon or against a person or thing.” O.R.C. § 2901.01(A)(1). Ohio case law
    
    holds that, “force or threat of force can be inferred where a defendant purposely compelled the victim
    
    to submit by employing certain objective actions that can be found to have overcome the will of the
    
    victim by fear or duress.” State v. Rupp, No. 05MA166, 
    2007 WL 969069
    , at *8 (Ohio App. Ct.
    
    Mar. 27, 2007).
    
            Pordash specifically points to the Ohio appellate court’s reliance upon State v. Eskridge, 
    526 N.E.2d 304
     (Ohio 1998), in upholding his conviction. Eskridge holds that the perpetrator’s parental
    
    relationship to the victim may be proof of force when the victim is a child because the role of parent
    Pordash v. Hudson
    07-4141
    Page 5
    
    is an inherently authoritative one. Pordash claims that the court, in applying the Eskridge force
    
    standard, “as long as it can be shown that the rape victim’s will was overcome by fear or duress, the
    
    forcible element of rape can be established,” id. at 306, wrongly analogized the doctor-patient
    
    relationship to a parent-child relationship and, thus, presumed that Pordash exercised inherent force
    
    over his patients. He contends that had the appellate court applied the adult force standard, “any
    
    violence, compulsion, or constraint physically exerted by any means upon or against a person,”
    
    O.R.C. 2907.01, he would have been exonerated.
    
           It is true that Ohio infers force based upon a parent-child relationship and does not extend
    
    that inference to adult relationships See State v. Schaim, 
    600 N.E.2d 661
    , 663 (Ohio 1992).
    
    However, the record shows that the appellate court specifically differentiated the doctor-patient
    
    relationship from that of a parent and child. Pordash, 
    2004 WL 2600461
    , at *3. Moreover, there
    
    is no indication that the Eskridge language—“as long as it can be shown that the rape victim’s will
    
    was overcome by fear or duress, the forcible element of rape can be established” Eskridge, 526
    
    N.E.2d at 306—is intended to be a distinct force standard that applies only to children.
    
           In fact, Ohio courts have repeatedly invoked this language in proving force in cases of adult
    
    rape. For example, in State v. Rupp, the defendant disputed a jury instruction that invoked this
    
    language in a rape case where the twenty-three-year-old victim stated that she had submitted to her
    
    rapist out of fear of retaliation if she resisted. 
    2007 WL 969069
    , at *6. The court stated that
    
           appellant’s argument fails to distinguish between the finding of force or threat of
           force for cases of children raped by those in authority positions [Eskridge] . . . and
           the mere ability of a jury to infer a threat of force in all cases where the victim’s will
           is overcome by fear or duress . . . if the defendant created the belief that physical
           force will be used in the absence of submission, then threat of force can be inferred.
    Pordash v. Hudson
    07-4141
    Page 6
    
           Nothing in the rape statute requires the threat of force to be direct or express. Thus,
           threat of force includes both explicit and implicit threats.
    
    Id. The court further stated that
    
           moreover, other appellate cases have unhesitatingly applied the law set forth in the
           disputed jury instruction here [the Eskridge force language] to cases where there was
           no position of authority over a child. See, e.g., State v. Pordash, 9th Dist. No.
           04CA8480, 2004-Ohio-6081 (dealing with chiropractor raping patients); State v.
           Worrell, 10th Dist. No. 04AP-410, 2005-Ohio-1521 (dealing with husband raping
           wife).
    
    Id.
    
           Moreoever, in State v. Arias, another case of adult rape, the court cited the Eskridge force
    
    language to reach its conclusion that “force may also be established by testimony that the victim’s
    
    will was overcome by fear” and that the victim’s “testimony regarding their fear of retaliation by
    
    defendant, if they did not engage in sexual conduct with him, is enough to establish force if believed
    
    by the trier of fact.” No. 04CA008428, 
    2004 WL 1882631
    , at *7 (Ohio App. Ct. Aug. 25, 2004).
    
    Thus, it is clear that the Ohio courts have referred to the contested force language in Eskridge when
    
    establishing force in cases of adult rape.
    
           Here, the appellate court merely referenced the Eskridge force language in its opinion, and
    
    went on clarify that each victim testified that her will was overborne by fear of retaliation based on
    
    her knowledge of Pordash’s martial arts expertise. The court did not analogize the doctor-patient
    
    relationship to that of a parent and child. Therefore, the appellate court was not applying an incorrect
    
    force standard in reviewing Pordash’s case. Whether or not that force was sufficient to overbear a
    
    victim’s will was a matter for jury determination.
    Pordash v. Hudson
    07-4141
    Page 7
    
           Thus, because the district court’s invocation of the Eskridge force language was not incorrect,
    
    no constitutional violation occurred.
    
                                                    IV.
    
           Therefore, we affirm the district court’s denial of habeas relief.
    

Document Info

DocketNumber: 07-4141

Filed Date: 7/13/2010

Precedential Status: Non-Precedential

Modified Date: 9/22/2015