The Akron Legal News

Man who tried to rape young girl loses appeal

ANNIE YAMSON
Special to the Legal News
Published: April 8, 2015

The 9th District Court of Appeals this week affirmed the judgment of the Lorain County Court of Common Pleas in the case of Anthony Aguirre, who was convicted of kidnapping and attempted rape after he was caught in a compromising position with an 8-year-old girl.

Case summary states that, on the night of Aug. 9, 2010, Aguirre was staying at the home of a woman identified only as Mellisa R.

After watching movies on a computer, Mellisa sent her 8-year-old daughter, K.R.D., to her bedroom which was located on the first floor.

At trial, Mellisa testified that she and Aguirre were going to go upstairs to her bedroom to watch a movie.

She told the trial court that Aguirre sent her upstairs and indicated that he would be along in a few moments.

Mellisa prepared the movie and waited for Aguirre but he did not come upstairs.

After waiting for a few minutes, Mellisa went back downstairs to check on him. She testified that it was almost completely dark and only the glow of the computer monitor lit the dining room.

Mellisa walked over to the light switch in the dining room and turned on the light. From where she stood, she had a clear view into K.R.D.’s bedroom, where she saw Aguirre.

Mellisa stated that Aguirre was lying down on K.R.D.’s bed and was holding K.R.D. on top of him. She testified that K.R.D. was naked from the waist down and that Aguirre was attempting to insert his penis into K.R.D.’s anus.

K.R.D. also testified at trial. She stated that Aguirre came into her room shortly after her mother had put her to bed.

According to her, Aguirre covered her mouth, bit her on the ear, removed her clothing and “stuck (his) penis in her butt.”

K.R.D. told the court that she felt like she could not leave because Aguirre was holding on to her and stated that she was scared and unsure of what was happening.

After Mellisa discovered what happened she took K.R.D. upstairs and informed the other occupants of the home, her sister and K.R.D.’s aunt, Renee Powers, and her brother-in-law.

Powers testified that Mellisa looked terrified and that K.R.D. was crying and thought that she had done something wrong.

Mellisa’s brother-in-law ran downstairs in order to confront Aguirre, but Aguirre had already fled on foot, leaving his shoes, cellphone and the bag of clothes he had packed.

After the incident was reported and K.R.D. was taken in for examination, K.R.D.’s ear tested positive for remnants of saliva. DNA tests proved that Aguirre could not be excluded as a contributor to the saliva.

At the conclusion of a jury trial, Aguirre was found guilty of kidnapping a victim under the age of 13, a sexual motivation specification and attempted rape of a victim under the age of 10. He was sentenced to 15 years to life in prison.

Despite the overwhelming evidence of guilt, Aguirre argued in his appeal that there was not enough evidence to convict on the kidnapping charge and that all of his convictions were not supported by the manifest weight of the evidence.

“Aguirre argues that his kidnapping conviction is based on insufficient evidence because the state failed the prove that he either removed K.R.D. from her bedroom or restrained her liberty,” Judge Donna Carr wrote on behalf of the court of appeals.

According to Aguirre, “any restraint was incidental to the attempted rape, and did not rise to the level of restraint required for a charge of kidnapping.”

The reviewing panel of judges disagreed.

“When a victim is under the age of 13, the kidnapping statute prohibits the restraint of the victim ‘by any means,’” Carr wrote. “At the time of this incident, Aguirre was a fully grown adult and K.R.D. was only 8 years old.”

“K.R.D. testified that Aguirre came into her room, placed his hand over his mouth, told her to shut up and made her take off her clothes.”

Based on the evidence, the appellate panel concluded that the state set forth sufficient evidence of restraint.

The reviewing court also found that Aguirre’s convictions were supported by the manifest weight of the evidence.

Aguirre’s defense during trial largely hinged on his belief that Mellisa was not generally a truthful person and that she fabricated the allegations against him because she found text messages from another woman on his cell phone.

The court of appeals pointed out that Aguirre’s DNA was found on K.R.D.’s ear and K.R.D. told the jury multiple times that Aguirre bit her on the ear. Moreover, it noted the jury heard testimony that Aguirre fled form Mellisa’s house on foot in the middle of the night without his shoes, his bag of clothes or his cell phone.

“It is an established principle of law that flight from justice may be indicative of the consciousness of guilt,” Carr wrote

Since the jury was in the best position to judge the credibility of the witnesses, the appellate panel ruled that its verdicts were not against the manifest weight of the evidence.

Aguirre also argued that the trial court should have let him present testimony from Melissa’s ex-husband and ex-mother-in-law that she had fabricated sexual abuse allegations in the past.

However, the reviewing court side with the trial court when it held that the evidence Aguirre sought to introduce was problematic because “it turns the trial into mini trials on whether those situations were true or not.”

“We cannot conclude that the trial court abused its discretion by refusing to allow Aguirre to question Mellisa about specific instances of her prior conduct,” Carr concluded.

The judgment of the Lorain County Court of Common Pleas was ultimately affirmed with Presiding Judge Jennifer Hensal and Judge Carla Moore concurring.

The case is cited State v. Aguirre, 2015-Ohio-922.

[Back]