The Akron Legal News

Appellate court rejects appeal from man who sexually abused his 10-year-old daughter

ANNIE YAMSON
Special to the Legal News
Published: May 12, 2015

In the 9th District Court of Appeals, a panel of three judges recently ruled that the Medina County Court of Common Pleas properly convicted a father of the rape of his biological daughter.

The defendant, Theodore Higdon, was sentenced to 25 years to life in prison after a jury heard the evidence and issued a guilty verdict.

According to case summary, Higdon and his wife, Candice, were separated and began formal divorce proceedings in 2010.

During the course of their marriage the Higdons had twin children, a son and a daughter.

On Dec. 2, 2012, Higdon was spending time with the twins at his home. At the time, the twins were 10 years old.

Around 9:30 p.m., the children went to sleep in their respective bedrooms but the daughter complained that she could not sleep and asked to sleep in her father’s bed. Higdon agreed.

During trial, the daughter testified that Higdon smelled of alcohol and that his face looked very pale.

Court documents state that the daughter complained about being too warm so Higdon suggested that she remove some articles of clothing.

The daughter testified that once she was in her shirt and underwear, her father began talking about orgasms and then exposed himself and asked her to touch him. When she refused, Higdon performed oral sex on his daughter two times.

Afterwards, the daughter asked Higdon if other dads do the same thing. She testified that he answered, “Sometimes.”

She also testified that Higdon said, “We can do this again next time.”

The daughter then went to the bathroom to wipe her father’s saliva from her and then returned to her own bedroom where she began to cry.

She testified that she wanted to call her mother and tell her what happened but Higdon would not allow it.

The next day, the daughter did not attend school after she complained that she had stomach pain.

Candice picked the children up from Higdon’s house that evening and the daughter told her mother about the incident with Higdon that night. Candice immediately called the police.

The evidence presented at Higdon’s trial included the results of tests done by the Ohio Bureau of Criminal Investigation and Identification on the clothes that the daughter was wearing on the night of the incident.

Amylase, an enzyme found in saliva, was found the daughter’s underwear.

Lindsey Nelson-Rausch, a forensic scientist for the BCI’s DNA unit, testified that the DNA from the daughter’s underwear was consistent with contributions from the daughter and Higdon.

Following his conviction and sentence, Higdon appealed directly to the 9th District court, arguing first that his jury did not consist of a fair cross-section of the community because roughly two-thirds of it was female.

“Crim.R. 24(F) provides that a defense attorney ‘may challenge the array of petit jurors on the ground that it was not selected, drawn or summoned in accordance with law,’” Judge Julie Schafer wrote on behalf of the court of appeals. “Here, Mr. Higdon’s defense counsel did not object to the composition of the petit jury until after the jury was sworn and empaneled.”

The reviewing court concluded that Higdon’s challenge was untimely.

Higdon proceeded to challenge the manifest weight of the evidence supporting his conviction.

According to him, several witnesses and pieces of evidence supported the fact that he did not rape his daughter.

Specifically, Higdon cited the fact that his daughter did not seek immediate help after the alleged sexual abuse.

Higdon also claimed that his ex-wife attempted to turn their children against him by “poisoning their minds” with thoughts that he was an alcoholic, a liar and weak.

Higdon went on to cite expert testimony that allegations of child abuse are common in divorce proceedings and the fact that DNA tests never conclusively established him as the source of amylase on the daughter’s underwear.

The court of appeals, however, held that the jury was in the best position to judge the testimony presented at trial.

“Here, the jury apparently accepted the testimony of Mr. Higdon’s daughter,” Schafer wrote. “The daughter’s testimony, if believed, supports the conclusion that she was raped by her biological father.

“Although Mr. Higdon attempted to show at trial that his daughter was lying because Mrs. Higdon had poisoned their children’s minds in the midst of a bitter divorce, the jury was free to disregard that theory.”

The appellate panel concluded that there was no manifest miscarriage of justice and the jury did not lose its way when it convicted Higdon of rape.

Higdon also challenged the admission of a letter that his ex-wife had written after learning of the incident and that she read during trial.

But the reviewing court held that, even if admission of the letter was an error, it was harmless because of the “overwhelming evidence of guilt” against Higdon.

The court of appeals concluded that Higdon was properly convicted and it affirmed the judgment of the Medina County court.

Presiding Judge Jennifer Hensal and Judge Donna Carr concurred.

The case is cited State v. Higdon, 2015-Ohio-1592.

[Back]