The Akron Legal News

Court of appeals affirms seven-year sentence for man who drugged, raped college student

ANNIE YAMSON
Special to the Legal News
Published: September 16, 2015

The 2nd District Court of Appeals recently ruled that a Dayton man was properly convicted on charges of rape, possession of criminal tools and contaminating a substance for human consumption.

The ruling affirmed the judgment of the Montgomery County Court of Common Pleas, where Joseph Fricke was tried by a jury and sentenced to seven years in prison for placing Lorazepam in a female’s drink before raping her.

The victim, 19-year-old C.C., was a University of Dayton student on Aug. 27, 2011 when she consumed a mixed drink and approximately one and a half shots of vodka in her dormitory before going out with friends.

Court documents state that C.C. and her friends went to a bar at some point after midnight. There, C.C. met Fricke for the first time and the two started up a conversation.

Case summary states that, at some point, Fricke offered C.C. a shot, which she drank, and then asked her to come home with him to “cuddle and watch a movie.”

According to C.C., she quickly began to feel drunk after the shot and, though she initially told Fricke that she was not interested in going home with him, he persisted in asking her and she eventually agreed.

The evidence presented at Fricke’s trial indicated that, at 2:46 a.m., C.C. sent a text message to her friend B.R. that stated “in car.”

At 2:52 a.m. C.C. sent another text to a different friend stating, “7i don’t knoe where I am (sic).” A minute later she sent another message stating, “Im i7n a car i7 don’t know (sic).”

C.C. testified that, at that point, she began to feel “super drunk” and scared and thought she should exit the car but when she looked at the door handle, she could not remember how to operate it.

Once they arrived at Fricke’s residence, he prepared a drink of vodka and orange juice and C.C. drank some of it. They then went to Fricke’s room and C.C. had trouble negotiating the stairs.

At 5:03 a.m., Fricke’s phone made a call to C.C.’s phone. The call went to voicemail and recorded C.C. saying “get off me now,” “ow,” “I don’t like this” and “stop.”

The message also recorded Fricke saying, “Why are you pushing me away?”

C.C. had no memory of what happened at the time that the voice message was created.

Around noon the next day, Fricke woke C.C. and drove her back to her dormitory. Case summary states that she had difficulty walking and went right to her bed.

Her roommates found her shortly thereafter, asleep and barely responsive. They listened to the voicemail that was left on C.C.’s phone during the assault and then took turns sitting with her until she woke up at 4 p.m.

C.C. said that when she awoke she felt “really strange.” She took a shower and had trouble standing and noticed that a tampon she had inserted the night before was missing. C.C. had bruising on her leg and a cut on her lip and stated that she was “very confused” and “had no idea what happened” to her the previous night.

That evening, C.C. went to Miami Valley Hospital where she was examined by a sexual assault nurse who noted that C.C. exhibited signs of vaginal and anal rape.

Since C.C.’s symptoms were consistent with a drug facilitated assault, the nurse took blood and urine samples which revealed a small trace of alcohol but a substantial amount of Lorazepam.

Swabs collected during C.C.’s examination tested positive for semen and Fricke’s DNA and C.C.’s DNA was found on Fricke’s bed.

When police went to speak to Fricke he initially denied knowing C.C. but eventually stated that she could have been the woman he was with the previous night.

After he was taken into custody, Fricke attempted to contact his lawyer but failed so the police began the jail booking process. At that point, Fricke asked to speak with the detectives and informed them that there were two pills on the floor of the interview room where he was sitting. Those pills were collected and later identified as Lorazepam.

Fricke was then informed for a second time that he did not have to speak with detectives until he spoke to his attorney and Fricke responded that he had prior experience being interviewed by university police. He then indicated that he understood his rights and signed a pre-interview form.

After hearing the evidence, a jury found Fricke guilty on all counts and he was sentenced to seven years in prison and designated a Tier III sex offender.

On appeal to the 2nd District court, Fricke argued that his convictions were against the sufficiency and manifest weight of the evidence and contended that C.C. was not a credible witness. The appellate panel disagreed.

“The evidence in this case supports a finding that C.C. was in Fricke’s presence from the time she met him in the bar until he returned her to her dormitory,” Judge Mike Fain wrote for the court of appeals.

Fain pointed out that C.C. was obviously impaired and noted that the DNA evidence supported a finding that Fricke had vaginal and anal intercourse with her.

“While C.C. did not remember having sex, the voicemail left by Fricke’s cellphone on C.C.’s cellphone contains statements by C.C. saying stop and a male voice, which Fricke admitted was his, asking why she was pushing him away,” Fain wrote.

The appellate panel also considered evidence that Fricke had a prescription for Lorazepam and he admitted that he did not like taking the drug and did not take it every day as prescribed.

“Thus, the jury could infer that he had extra pills on hand,” Fain wrote. “Furthermore, the evidence showed that Fricke was a paramedic and had completed a nursing program. Thus, the jury could infer that he was familiar with the effects of the drug.”

In fact, the day after the rape, Fricke texted C.C. at 5:27 p.m. and asked her if she was awake. The court of appeals held that the text indicated an awareness on Fricke’s part of how impaired C.C. was.

“We conclude that the record contains evidence upon which a jury could reasonably rely in concluding that Fricke put Lorazepam in C.C.’s drink,” Fain wrote. “There is evidence upon which a reasonable juror could rely in finding that Fricke possessed Lorazepam with the purpose to administer it to, and with the intent to impair, C.C. and that he did so by placing it in one or both of the drinks he supplied her with the purpose of rendering her incapable of resisting his sexual advances.”

The appellate panel proceeded to overrule Fricke’s remaining arguments which included claims that he was not properly interviewed and that his residence was not properly searched.

It also overruled an assignment of error from the state in a cross appeal and concluded that the trial court properly merged the offenses of rape and contamination of a substance for human consumption.

“All of Fricke’s assignments of error and the state’s sole assignment of error being overruled, the judgment of the trial court is affirmed,” Fain concluded.

Judges Mary Donovan and Jeffrey Welbaum joined Fain to form the majority.

The case is cited State v. Fricke, 2015-Ohio-3389.

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