Phone call evidence entered in rape trial
WARREN — A key piece of evidence against the defense was played for a Trumbull County jury as the rape trial of a 41-year-old Liberty man continued for a second day Tuesday in common pleas court.
Defendant Theodore J. Fecko III will decide whether to take the stand today before Judge Ronald J. Rice.
Fecko is accused of inappropriate touches and then digitally raping a then-12-year-old girl at the Ray Court home of his mother on July 23, 2020. If found guilty, Fecko could get a life prison sentence.
Before Assistant Prosecutor Diane Barber ended her case, she played the Oct. 22, 2020, jail phone call between Fecko’s mother and the defendant, which was recorded. In that call when talking about DNA evidence in the case, Fecko admitted to his mother that he had masturbated about 20 minutes before the alleged offenses took place.
Defense attorney Robert Rohrbaugh II immediately objected after the jury heard the statement — citing hearsay. Rice overruled the defense move, however, letting the contents of the call stand as evidence.
In total, Barber called 10 people to the witness stand Wednesday, including four health care workers from Akron Children’s Hospital in Boardman, where the victim was brought about two hours after the alleged assault took place. All the health care workers — nurse practitioner Marjorie Malmer, social worker Mary Wojciak, emergency room nurse Celestina Walters and Dr. James J. Rechtenwald — said the victim accused Fecko of fondling her breast twice and then reaching below her underwear to penetrate her.
The victim herself gave that same testimony to jurors on Monday.
Malmer, however, said there was no physical evidence of the assault, which she said is normal in these types of cases.
Two representatives of the Ohio Bureau of Criminal Investigation later testified to analyzing DNA evidence taken from the defendant and from the victim and her underwear. Neither BCI agents Stacy Violi nor Timothy Ozbeck could say that the defendant’s DNA matched the samples taken from the victim.
BCI agent JoAnn Gibb, who analyzed Fecko’s cellphone, testified that the victim’s cellphone number was kept in his list of contacts. Later testimony by Liberty police detective Sgt. Michael Schuster revealed that Fecko had attempted to call the victim on July 5, some 18 days before the alleged offense.
“There were more than one time that had happened,” Schuster told Rohrbaugh during cross examination.
Also presented as evidence were 28 thumbnail photos gleaned from the defendant’s cellphone, showing Fecko with the victim and her 9-year-old girl friend playing in the water at Mill Creek Park earlier in the day of the alleged attack.
Rohrbaugh got Schuster to admit that Fecko had cooperated with the investigation in submitting to DNA swabs and giving up the passcode to his cellphone.
“He reluctantly handed over his cellphone,” Schuster said.
It was the jail phone call to his mother, however, that proved to be the most damaging piece of evidence Wednesday. Trumbull County jail administrator Maj. Daniel Mason took the stand to verify that it was Fecko who placed the call from his jail pod.
The victim’s stepfather came to the stand testifying that he received a call from the victim shortly after the alleged attack. At the time, the man said he and his wife — the victim’s mother — were shopping in Niles.
“She told me what happened and I told her to go home and lock the door, and we’ll be right home,” he said.
The stepfather told the jury after learning of the allegation, he tried to call Fecko four times to get his side of the story, but got no answer. He said he left two voicemails, but had never heard from the defendant.
The jury will not go into deliberations until both attorneys get a chance today to present final statements to them and the judge reads them instructions.