State v. Gum , 2019 Ohio 4748 ( 2019 )

[Cite as State v. Gum, 2019-Ohio-4748.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ROBBIE GUM : Case No. 2018 CA 00177
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2018 CR 0372
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 18, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DONAVAN HILL
PROSECUTING ATTORNEY 116 Cleveland Avenue North
STARK COUNTY, OHIO Canton, OH 44702
By: KATHLEEN O. TATARSKY
110 Central Plaza, South – Suite 510
Canton, OH 44702
Stark County, Case No. 2018 CA 00177 2
Wise, Earle, J.
{¶ 1} Defendant-appellant Robbie Gum appeals the November 9, 2018 judgment
of conviction and sentence of the Court of Common Pleas, Stark County, Ohio. Plaintiff-
appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} We refer to the sixty-three-year-old victim in this matter as Jane Doe. In
early 2018, Doe was preparing to sell her home, which required some repairs. Gum lived
nearby and Doe hired him to complete the repairs. Gum had partially completed a ceiling
repair, leaving a 4 inch by 3 foot area of the ceiling open. On the night of February 16,
2018, Doe arrived home late from a meeting to find a note on her door from Gum asking
her to text him when she returned home. She did so, and Gum responded just after 11:00
p.m. stating he was coming over. Doe did not think this unusual as she considered Gum
a friend.
{¶ 3} Gum arrived, then went back home to retrieve the panel for the ceiling.
When he returned, he crept into Doe's home, locked the door behind himself, crept up
behind Doe and struck her with a flashlight on the right side of her head. He then stuck
her on the left side of her head. Gum then put his hand over Doe's mouth and nose and
told her if she screamed, he would kill her.
{¶ 4} Gum turned off the lights and made Doe crawl to the front of her sofa and
lay on the floor. Doe told Gum he just needed to go home, Gum responded "I'm already
going to get 16 to 20 years for what I did to your head so I might as well finish the rest."
He then lowered his pants, shoved his penis into Doe's face and ordered her to "suck."
Stark County, Case No. 2018 CA 00177 3
Gum told Doe to do exactly as he asked of her or would "gut" her with the knife he was
carrying.
{¶ 5} Doe was frightened and did as she was told as Gum had already
demonstrated his willingness to bludgeon her with the flashlight. Gum ordered her to
remove her clothing and she did so, after which Gum touched her body all over. Gum
then produced some zip ties and told Doe he was going to use them to tie her up. Doe
loudly begged him not to. Gum told her to shut up and he would not tie her up. Instead,
he sat on a paint can and made Doe army-crawl to him and perform fellatio. He then
directed her to crawl on her hands and knees to the bedroom and to "wiggle [her] ass” as
she did so because he liked that.
{¶ 6} In the bedroom Gum ordered Doe onto the bed. Doe again begged Gum
to just go home but Gum just repeated his order, still wielding the flashlight. Gum then
again ordered Doe to perform fellatio while he took photos with his phone. Doe noticed
Gum had a rag and asked what it was for. Gum stated he was going to shove it in her
mouth while he raped her and was going to invite his buddy Jimmy over to watch. He then
digitally penetrated her and declared he "could make a good video out of this." Doe
continued begging Gum to just go home.
{¶ 7} Doe’s ordeal went on for about four hours before Gum's demeanor suddenly
changed. Doe then realized Gum was coming down from some type of high. Throughout
the assault Gum had referred to Doe as bitch, slut, or whore. He then suddenly began
referring to her by her name, told her she needed to call police, and offered to clean her
head wounds. Doe again told him to just go home. Once he did, Doe immediately took
herself to Aultman Hospital.
Stark County, Case No. 2018 CA 00177 4
{¶ 8} Doe was treated for a swollen hand and lacerations to her head which
required eleven stapes to close. Doe was also seen by a sexual assault nurse who
observed Doe to be exhausted, upset and agitated. Doe refused a rape kit because Gum
was unable to obtain an erection and did not penetrate her with his penis. Further she just
wanted to go home.
{¶ 9} Doe also spoke to Lawrence Township police officer Patrick Arnold at the
hospital. She provided Officer Arnold with Gum's name and address. As Arnold drove
back to the police station to complete his report and obtain a warrant, he spotted a man
walking down State Route 21 that matched Doe’s description of Gum. Arnold and his
partner stopped the man who identified himself as Gum and stated he was out looking for
cattails for a craft project. As Arnold patted Gum down for weapons, Gum ran. After a
short chase he was apprehended, provided with Miranda warnings and taken to the police
station for an interview. Gum stated he fled because he had methamphetamine in his
pocket.
{¶ 10} Gum was interviewed by Lawrence Township Police Chief David Brown.
Gum was not wearing the outer clothing Doe had described, but the tee shirt he wore
under his sweatshirt appeared to be blood stained. Gum's clothing was seized and sent
to the Bureau of Criminal Investigation (BCI) for testing. Gum's interview was video
recorded, but was accidently erased. Gum admitted he left a note on Doe’s door, and had
sent a text saying he was on his way over to her house, but maintained he never went to
Doe’s home the evening question.
{¶ 11} Officers next obtained permission from Gum's wife to search his home. The
clothing Doe described was not found. However, on top of Gum's shed, officers located
Stark County, Case No. 2018 CA 00177 5
a black bag containing the flashlight described by Doe as well as the cloth, knife, and zip
ties. These items were also sent to BCI for testing.
{¶ 12} Officers also searched Doe's home. They observed a pool of blood on the
living room floor and blood stains on the comforter in the bedroom. The comforter and the
clothing Doe was wearing at the time of the attack were sent to BCI.
{¶ 13} DNA expert David Miller of the BCI tested the submitted items. The DNA of
both Gum and Doe was found on the flashlight, the shirt Gum was wearing when he was
arrested, and the comforter from Doe’s bed.
{¶ 14} As a result of these events, in March, 2018, the Stark County Grand Jury
returned an indictment charging Gum with one count of forcible rape, one count of
kidnapping, one count of aggravated burglary, and one count of felonious assault. The
kidnapping and burglary charges carried sexual motivation specifications.
{¶ 15} Gum pleaded not guilty to the charges and the matter proceeded to a jury
trial on October 1, 2018. Gum's counsel argued in opening statement that the encounter
was consensual.
{¶ 16} The state presented five witnesses that testified to the forgoing facts. Gum
rested without producing witnesses or testifying on his own behalf. The jury found Gum
guilty as charged.
{¶ 17} Gum was subsequently sentenced to an aggregate prison term of 22 years.
He was further classified as a Tier III sex offender.
{¶ 18} Gum then filed an appeal, and the matter is before this court for
consideration. He raises one assignment of error:
I
Stark County, Case No. 2018 CA 00177 6
{¶ 19} "APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE."
{¶ 20} In his sole assignment of error, Gum argues his convictions are against the
manifest weight of the evidence. We disagree.
{¶ 21} On review for manifest weight, a reviewing court is to examine the entire
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 such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered." State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d
541 (1997). The granting of a new trial "should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction." Martin at 175.
{¶ 22} Gum attacks the credibility of Doe and law enforcement officers involved in
the investigation of this matter.
{¶ 23} Gum argues Doe's testimony was not believable because it was
inconsistent with her reports to law enforcement as to digital penetration and whether or
not Gum ejaculated. We note that at trial, however, Gum did not deny sexual conduct had
taken place between himself and Doe. Rather, his defense was that the conduct was
consensual. Gum's counsel for Gum argued in opening statement:
Mr. Frame: Consent, that's what this case is going to be about. There
was an ongoing sexual relationship between Mr. Gum and Miss
Stark County, Case No. 2018 CA 00177 7
[Doe], and that is really what this case is about. Whether or not that
sexual relationship was consensual.
Now, Mr. Gum is married, he has four children. He was having an
ongoing sexual relationship with another woman. As the State has
already said, he had a problem with drugs as well. So Mr. Gum was
not making very wise choices. He was not acting in an appropriate
manner. And he decided that he couldn't continue this relationship.
And that is the decision which led to the allegations that you will be
hearing about today and tomorrow.
Transcript of trial, volume 1 at 205-206.
{¶ 24} We therefore reject Gum's credibility arguments regarding consent.
Moreover, as for any inconsistencies, it is well settled that "[w]hile the trier of fact may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996
WL 284714 (May 28, 1996).
{¶ 25} As for Gum's attack on the credibility of the officers due to loss of the video
of his interview, the physical and forensic evidence in this matter corroborated Doe's
report. A video of Gum denying the charges would have done nothing to dispel the
strength of appellee's case. We therefore reject Gum's argument.
Stark County, Case No. 2018 CA 00177 8
{¶ 26} We find that this is not an " 'exceptional case in which the evidence weighs
heavily against the conviction.' " State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678
N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. The
jury neither lost his way nor created a miscarriage of justice in finding Doe did not consent
to the charged crimes and convicting Gum of rape, kidnapping, felonious assault, and
aggravated burglary.
{¶ 27} The sole assignment of error is overruled. The judgment of conviction and
sentence of the Stark County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Wise, John, P.J. and
Baldwin, J. concur.
EEW/rw