State v. Ballard, Unpublished Decision (5-30-2000)
State v. Ballard, Unpublished Decision (5-30-2000)
State v. Ballard, Unpublished Decision (5-30-2000)
Opinion of the Court
OPINION
Appellant Darwin Ballard appeals his conviction, for rape, from the Stark County Court of Common Pleas. The following facts give rise to this appeal. In the early morning hours of August 14, 1998, appellant entered the home of his former girlfriend, LaDonya Kimbrough. Appellant is the father of Ms. Kimbrough's children, ages three, four and five. Appellant never lived with Ms. Kimbrough and did not have a key to her house. At the time of the sexual assault, the romantic relationship between appellant and Ms. Kimbrough had been over for approximately two years. The parties stayed in contact for purposes of the children. However, these contacts often resulted in arguments and in October 1997, appellant pled guilty to a domestic violence incident in connection with Ms. Kimbrough. On the evening of August 13, 1998, Ms. Kimbrough expected a visit from a male friend. Prior to the visit, Ms. Kimbrough mopped her kitchen floor and opened the kitchen window to speed the drying of the floor. Ms. Kimbrough's friend visited from approximately 10:00 or 10:30 p.m. until midnight. Following his departure, Ms. Kimbrough went to bed. After Ms. Kimbrough went to bed, appellant entered her residence, by way of the open window in the kitchen, and got in bed with Ms. Kimbrough. Appellant was wearing only his boxer shorts. Appellant began touching her back and Ms. Kimbrough awoke. Appellant told Ms. Kimbrough he wanted to talk to her. Ms. Kimbrough indicated she did not want to talk to appellant and ordered him to leave. Appellant repeatedly asked Ms. Kimbrough whether she had sex with her male visitor. Ms. Kimbrough denied having sex with the male visitor and told appellant it was none of his business. Appellant turned accusatory. He told Ms. Kimbrough that if the male visitor could have sex with her, he could too. After appellant continued to refuse to leave, Ms. Kimbrough attempted to use the telephone beside her bed. Appellant hung up the telephone and took it from her. Ms. Kimbrough then attempted to leave the bedroom, however, appellant shut the door. Ms. Kimbrough next began pounding on her bedroom wall in an attempt to wake her neighbor. Appellant pulled her away from the wall and Ms. Kimbrough began screaming. Appellant placed his hand over Ms. Kimbrough's mouth and as she tried to remove appellant's hand from her face, Ms. Kimbrough fell to the floor receiving a carpet burn on her elbow. Appellant pulled Ms. Kimbrough from the floor, removed her boxer shorts, and began raping her. When appellant loosened his grip, Ms. Kimbrough was able to escape. Ms. Kimbrough grabbed a portable radio and began swinging it at appellant. Ms. Kimbrough hit a lamp with the radio and shattered it. She also knocked a hole in her bedroom wall shattering the radio. Appellant eventually left the bedroom and ran downstairs. At that point, Ms. Kimbrough dialed 911. Officer Robert Flaherty and Eric Stanbro, from the Canton Police Department, arrived on the scene at 4:20 a.m. The front door to the apartment was locked, however, the officers noticed an open window in the kitchen. The back door to the apartment was unlocked and the officers entered through this door. Ms. Kimbrough locked her bedroom door after appellant fled. Ms. Kimbrough did not leave her bedroom until the dispatcher told her the officers were at her bedroom door. The officers noticed that Ms. Kimbrough appeared very frightened, with red swelling around the left side of her face. Ms. Kimbrough also had a cut on the tip of her nose and under the bridge of her nose. Paramedics also arrived on the scene. Paramedic Jason Eberly observed that Ms. Kimbrough was in a distressed emotional state. He also noticed the bruising on Ms. Kimbrough's face. The paramedics transported Ms. Kimbrough to Aultman Hospital. As a result of this sexual assault, the Stark County Grand Jury indicted appellant, on one count of rape, in January 1999. Appellant entered a plea of not guilty and this matter proceeded to trial on March 1, 1999. At trial, Jennifer Bloint, a criminologist from the Stark County Crime Lab, testified that vaginal slides and swabs taken from Ms. Kimbrough tested positive for the presence of semen and spermatozoa. Appellant testified in his defense. Appellant admitted to having sexual intercourse with Ms. Kimbrough, but claimed that it was consensual. Following deliberations, the jury found appellant guilty as charged. The trial court sentenced appellant to a determinate term of five years of incarceration. Appellant timely filed his notice of appeal and sets forth the following assignments of error for our consideration.I. THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION, AND THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. OTHER ERRORS WERE COMMITTED AT TRIAL NOT RAISED HEREIN BUT APPARENT ON THE RECORD.
For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
HOFFMAN, P.J. and READER, V.J. CONCUR.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.