The Akron Legal News

Man who had sex with his friend's underage sister has appeal rejected

JESSICA SHAMBAUGH
Special to the Legal News
Published: October 7, 2014

A three-judge panel in the 3rd District Court of Appeals recently released an opinion affirming a young man’s convictions for unlawful sexual conduct with a minor, but remanding the case for new sentencing.

The Putnam County Court of Common Pleas found Kyle Sharp guilty of two counts of unlawful sexual conduct with a minor and one count of tampering with evidence in December 2012.

It subsequently sentenced him to a total of three years in prison.

Sharp appealed those rulings to the district court.

Upon review, the appellate judges found that the state presented testimony from several witnesses during Sharp’s trial.

C.S. testified that she was 15-years-old when she met Sharp at the annual Continental Fall Festival.

She said she met up with Sharp in a parking lot so she could get alcohol.

Eventually, C.S. said she got in Sharp’s truck and the two started talking.

That talk progressed and she claimed they eventually had sexual intercourse. She told the court Sharp told her not to tell anyone what happened.

A second alleged victim, G.R., testified that Sharp was her older brother’s best friend.

After going to a movie with Sharp and her brother, Aaron, she said she asked Aaron for Sharp’s phone number and started texting him.

She said the subsequent conversations were sometimes about “sexual things.”

In March 2012, G.R. said she went over to Aaron’s apartment when she knew Sharp would be there.

The two young men went out drinking that night and returned in the early morning hours. G.R. said Aaron went straight to bed after they returned but that she and Sharp went into a spare bedroom and had sex.

After the act, G.R. said Sharp told her not to tell anyone what happened because “he could not handle jail.”

Shortly thereafter, G.R.’s mother found out about the sexual relationship and reported it to the police.

When Aaron found out about his sister’s allegations, he confronted Sharp in a local bar.

Aaron testified that Sharp denied the allegations but said if police looked at his text messages he would be in trouble.

He also told the court that his friends often brought up C.S. in front of Sharp and Sharp would not deny the sexual allegations, but instead smirked and said nothing.

The investigating officers testified a search of Sharp’s phone showed no information as though someone had deleted all texts.

Verizon Wireless provided a record of when he sent text messages to certain individuals, but not the content of those messages.

In his defense, Sharp called two Bureau of Criminal Investigation experts who testified no DNA was found on Sharp’s bed sheets.

However, they explained that this was consistent with G.R.’s testimony that Sharp used a condom.

Sharp’s cousin John also testified on his behalf and told the court that he went drinking with Sharp and Aaron on the night in question and they did not return home until after 7 a.m., which contradicted G.R.’s testimony that the men returned home around 5 a.m.

Sharp also testified that the timeline for the night did not match G.R.’s description.

He further said G.R. would flirt with him and text him about her virginity and sexual things that made him uncomfortable.

Sharp told the court he was unaware of any allegations until Aaron confronted him in the bar.

On cross-examination, however, he admitted that local police called and left messages numerous times prior to his meeting with Aaron.

He also denied deleting information from his phone because he said he was only home from jail for about 10 minutes before police came to pick it up.

Again, that was disputed on cross-examination and he admitted he was released from jail around 3:45 p.m. and the police did not get to his home until 5:40 p.m.

The jury ultimately found him guilty as charged.

Sharp first challenged the sufficiency of the evidence against him.

The judges quickly found that the testimony established all elements of unlawful sexual conduct with a minor as it showed Sharp was not married to his victims and they were underage at the time.

However, Sharp argued that his tampering with evidence conviction was unlawful because the state did not show that he knew about any ongoing investigation when he deleted the text messages.

“However, Sharp ignores the evidence presented that showed he received multiple phone calls from the Continental Police Department on March 30, April 2, April 9, April 13, April 17, April 18 and April 20. After every attempt to contact Sharp, police officers left voicemails on Sharp’s phone,” Judge Richard Rogers wrote for the court.

The judges further noted that police visited Sharp’s home numerous times but he was “conveniently” absent each time and that Sharp realized his texts could be incriminating because he confided as much in Aaron.

“Thus, when viewed in a light most favorable to the state, there is sufficient evidence in the record to demonstrate that Sharp was aware that a criminal investigation was likely to occur, if not already in progress,” Judge Rogers stated, dismissing the first assignment of error.

Sharp next argued that his convictions were against the manifest weight of the evidence because G.R.’s testimony was inconsistent about the time he and Aaron returned from the bar.

The judges found this minor detail was not enough to reverse his convictions or to outweigh his own inconsistencies and overruled the argument.

The panel did agree with Sharp’s contention that the trial court did not make all the required findings before issuing consecutive sentences.

“Having found no error prejudicial to Sharp in the first of second assignments of error, but having found error prejudicial to Sharp in the third assignment of error, we affirm in part and reverse in part the trial court’s judgment and remand this matter for further proceedings consistent with this opinion.”

Judges Vernon Preston and Stephen Shaw concurred.

The case is cited State v. Sharp, 2014-Ohio-4140.

[Back]