The Akron Legal News

Man who raped two women on consecutive days loses appeal

ANNIE YAMSON
Special to the Legal News
Published: June 25, 2014

A Montgomery County man’s 76-year to life prison sentence imposed in the Montgomery County Court of Common Pleas was recently affirmed by the 2nd District Court of Appeals.

The defendant, David Lovato, was convicted by a jury of four counts of rape, two counts of felonious assault, two counts of kidnapping and one count of intimidation of a crime victim or witness.

The kidnapping and felonious assault counts contained sexual motivation specifications.

In his delayed appeal, Lovato claimed the trial court erred when it failed to merge allied offenses of similar import.

He also argued that his confession should have been suppressed.

According to case summary, Lovato’s convictions stemmed from the rape of two women less than one day apart.

Evidence at trial established that Lovato’s first victim, H.C., drove to the Foundry night club in Dayton to meet with two friends shortly before midnight on Jan. 16, 2006.

While there, she was approached by a man wearing a white suit and a fedora.

The man introduced himself as MJ 3000 and was later identified as Lovato.

He told H.C. that he was a photographer and offered to take pictures of her.

As the night club was closing, Lovato asked H.C. for a ride home.

She testified that she agreed because Lovato was being friendly and he told her that he lived just up the street.

However, once in the car, Lovato directed H.C. to drive farther away from the night club than she expected, eventually telling her to stop in an alley behind a house.

He repeatedly asked H.C. to come inside and when she declined, Lovato began punching her in the face and told her that she had three seconds to get in the back seat of the car.

H.C. complied, but Lovato continued to punch her three or four more times, breaking her nose.

Lovato then ordered H.C. to remove her pants and proceeded to rape her.

H.C. testified that the ordeal lasted for two and a half to three hours and Lovato alternated between threatening her and telling her that he wanted to have children with her.

When she was finally allowed to leave, Lovato asked H.C. for her phone number and a hug.

H.C. drove away at approximately 7 a.m. in the morning.

Around 8 p.m. that same day, Lovato’s second victim, T.M., got off a bus on North Main Street in Dayton, with plans to meet her boyfriend.

While she waited, T.M. went to a nearby United Foods store to buy cigarettes.

Inside, she encountered Lovato and spoke with him for a couple minutes. He identified himself as MJ 3000.

T.M. walked out of the store and smoked a cigarette and Lovato soon followed.

He stood beside her and told her that she “should not be out here by (herself.) There’s lots of rapists and pedophiles in the area.”

Lovato said that if T.M. would go with him to drop his cell phone at his sister’s house, he would wait with her for her boyfriend at the bus stop.

T.M. agreed and the two went to Lovato’s sister’s home, stayed for 10 minutes and then walked back to the bus stop.

When T.M.’s boyfriend arrived on a bus, Lovato assured him that he had “looked out” for T.M.

The couple then tried to walk away from Lovato, but he followed.

The boyfriend decided to go to a nearby Rite Aid and T.M. walked back to the bus stop with Lovato.

While passing United Foods, Lovato hit T.M. in the face and side of the head, causing her to lose consciousness.

When she came to, Lovato was dragging her by her coat into a garage in an alley.

T.M. tried to run out of the garage, but Lovato caught up to her and choked her, causing her to pass out a second time.

T.M. was raped until about 10 p.m., when Lovato walked her back to the bus stop.

When he left, T.M. called her boyfriend’s father and asked for him to pick her up.

“Considering the sexual motivation finding with respect to the kidnapping and felonious assault charges, Lovato reasonably argues that he acted with a single animus in committing the rapes, kidnapping and felonious assault,” wrote Presiding Judge Jeffrey Froelich on behalf of the court of appeals. “In our view, the sexual motivation finding does not necessarily require a conclusion that the felonious assault, rape and kidnapping offenses for each victim must merge, because such a conclusion fails to consider whether the kidnapping, felonious assaults and rapes were committed by the same conduct.”

The three-judge appellate panel sided with the trial court in finding that “there was an act of asportation by deception which constituted kidnapping,” and that it was independent from the rapes themselves.

In other words, Lovato first lured or forced the women to the home and the garage.

In H.C.’s case, he deceived her into thinking he lived nearby, instead, he executed a plan that got her to a secluded alleyway behind his home. T.M. was forcefully dragged into a garage.

Therefore, the crimes of kidnapping and rape were committed separately and should not have merged for sentencing, the court of appeals concluded.

It made the same conclusion with regard to the merger of the felonious assault and rape counts.

By punching the women before raping them, Lovato committed a separate act.

Lovato proceeded to argue that his confession to police detectives was involuntary and should have been excluded from evidence.

According to him, he was subject to repeated and prolonged questioning and deprived of sleep.

“We find no support for Lovato’s assertion that his confession was involuntary,” wrote Judge Froelich. “Lovato waived his Miranda rights. The detectives questioned Lovato for several hours during the early morning hours of Jan. 17, 2006. However, he was provided water and cigarettes on several occasions and there were several breaks during the interview.”

Lovato was asked if he wanted to stop questioning due to fatigue and he declined.

The appellate panel also noted that he was not handcuffed and was not promised anything in exchange for his statements.

Rather, he was left alone in the interview room while he voluntarily hand wrote two separate statements concerning each rape.

“Lovato’s claim that the trial court should have suppressed his confession as involuntary is without merit,” Judge Froelich concluded.

Lovato also challenged his conviction for intimidation of a witness but the court of appeals overruled that claim as moot, citing the fact that he has been in prison since 2007 and has already served the entirety of that six-month sentence.

The judgment of the Montgomery County court was affirmed with judges Mike Fain and Jeffrey Welbaum concurring.

The case is cited State v. Lovato, 2014-Ohio-2311.

[Back]