The Akron Legal News

3rd District affirms attempted rape conviction

ANNIE YAMSON
Special to the Legal News
Published: May 20, 2013

A 3rd District Court of Appeals panel recently ruled that a man was properly convicted of four counts of sexual conduct charges with a minor under the age of 13.

Andrew Depinet contended his trial court erred by allowing two rebuttal witnesses and by denying his motion for a new trial.

He also claimed he was denied his right to effective assistance of counsel.

A Seneca County grand jury indicted Depinet on Dec. 14, 2011, charging him with one count of attempted rape, a second-degree felony, two counts of gross sexual imposition and one count of importuning, all felonies of the third degree.

At the time of his indictment, Depinet was 20 and worked at a Kroger and also owned and operated a concession stand business at local fairs and events.

Case history stated that Depinet had been friends with D.K., a 12-year-old boy, for about two years. The two often spent time together going to movies and bowling and D.K. would help with Depinet’s concession stand on occasion.

After he entered a plea of not guilty, Depinet’s case proceeded to a three-day jury trial in the Seneca County Court of Common Pleas where the state’s main witness was the alleged victim along with the two law enforcement officers who conducted the investigation.

During his testimony, D.K. described incidents that took place during the period from April to June 2011.

According to court summary, Depinet began having conversations about sexually related topics with D.K. He testified that Depinet began asking him to take off his pants and touched him in a sexual manner and that at one point he attempted to place his mouth on D.K.

Eighteen different character witnesses testified on behalf of the defense including co-workers, neighbors, relatives, friends and school personnel.

The court stated that each witness established that they felt Depinet was a trustworthy and caring individual and no one had ever seen or suspected any inappropriate sexual conduct on his part.

Depinet also testified on his own behalf and denied all of the charges.

The state proceeded to call two rebuttal witnesses — two younger boys who went to school with Depinet. Both included testimony that Depinet had touched them sexually and had even offered money to do so.

The jury subsequently found Depinet guilty on all four counts and sentenced him to a total prison term of nine years.

Following the trial, Depinet filed a motion for a new trial, alleging prejudicial error when the state offered the testimony of two rebuttal witnesses and juror misconduct when a juror was observed speaking in the hallway to his great niece, a friend of one of the witnesses.

The trial court denied the motion and Depinet appealed, raising three assignments of error.

Depinet contended that the two rebuttal witnesses should not have been permitted because their testimony was false and denied him his fundamental right to a fair trial.

“The state’s rebuttal evidence was not offered as proof of other bad acts or to attack Depinet’s credibility,” 3rd District Judge John Willamowski wrote on behalf of the court. “These witnesses were presented to rebut evidence of a pertinent character trait that Depinet had offered to support his defense.”

Willamowski contended that by claiming he had never solicited any minor to participate in sexual activity, he opened the door that allowed the state to rebut his defense.

The appellate court also acknowledged the fact that Depinet claimed the testimony of the rebuttal witnesses was not true.

However, the state stressed that his attorney cross-examined the witnesses thoroughly.

“Depinet took the stand again after their testimony and had the opportunity to deny their testimony and raise any factual issues,” wrote the court. “It was for the jury to decide the credibility of the witnesses and testimony.”

The appellate panel also found that the trial court did not err in its denial of Depinet’s motion for a new trial.

The juror who spoke to a friend of a witness in the hallway signed an affidavit swearing the case was not discussed and that the brief conversation in the hall had no impact on the juror’s decision.

“Depinet has failed to demonstrate how this contact prejudiced him or prevented him from having a fair trial,” wrote the court.

In his final assignment of error, Depinet claimed he had ineffective assistance of his counsel “because of certain statements, or choice of words, made by his counsel during opening and closing statements and when questioning the witnesses.”

Willamowski contended that review of the court transcripts revealed that Depinet’s complaints about what his attorney said during trial were taken out of context.

Depinet also claimed that his attorney could have called more witnesses to discredit the victim’s testimony.

“Defense counsel’s strategy ... was to portray Depinet as such a good citizen that it would be impossible for him to commit any kind of inappropriate, let alone illegal, behavior,” Willamowski wrote. “Counsel presented 18 character witnesses, and yet, Depinet suggests that even more witnesses should have been offered. Claiming ineffective assistance of counsel based on nothing more than failed trial strategy is simply not sufficient.”

The appellate panel affirmed the judgment of the trial court. Presiding Judge Vernon Preston and Judge Stephen Shaw concurred.

The case is cited State v. Depinet, 2013-Ohio-1850.

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