XENIA — A jury was unable to reach a verdict in the rape case of two Fairborn men March 8.
Chance Putnam, now 22, and Tahryn “T.J.” Bailey, now 19, were each charged with two counts of rape, a first degree felony, and two counts of sexual battery, a third degree felony.
After deliberating for a few hours in the afternoon, the jury foreman informed Judge Stephen Wolaver they would be unable to reach a verdict, even if given more time. Wolaver excused the jurors, but did not declare a mistrial. He continued to keep the two defendants on bond.
Assistant Prosecutor Cherie Stout asked for a couple days to decide what the state will do. She said options include retrying the case or asking for a dismissal.
Six jurors voted guilty, three not guilty and three undecided, according to the court reporter.
While discussing the merits of the case with the attorneys after court adjourned, one juror said that had the alleged victim totally blacked out and not remembered bits and pieces of the alleged events, he would have voted guilty. Another told the defense attorneys that one piece of evidence they submitted actually hurt their case.
The charges came after a sexual assault was reported to the Fairborn Police Department April 2016. The pair were arrested in August, according to police.
During closing arguments Wednesday morning, assistant prosecutor Anu Sharma told the jury the state had met its burden of proof. She said Bailey “did engage in sexual conduct not the spouse of the offender” when the alleged victim’s ability to resist or consent was impaired.”
“She testified that she was in a state that she was intoxicated,” Sharma said. “She couldn’t control her movements.”
The victim, now 17-years-old, admitted in court that she went to the party to get drunk.
“She was given those shots by Mr. Bailey,” Sharma said. “People that she trusted.”
Sharma also told the jury that the victim had missing gaps of time, blacked out and was acting silly, all things consistent with being heavily intoxicated.
“She had no knowledge of how she got to certain positions,” Sharma said. “They knew that they were drunk. They were all drinking. The events … are what they are. I think the state’s met their burden.”
Putnam’s defense attorney, Christopher M. Fogt, argued that the state did not meet its burden.
“There’s plenty of reasonable doubt,” he said. “There’s just not enough information as to what happened to rely on.”
Fogt also argued that the victim remembered some events of the evening in question, “Except when it’s not to her benefit.”
“She remembers a lot of things, then she claims she doesn’t,” Fogt said. “She’s trying to have it both ways.”
Fogt added that information the jury didn’t receive is as important as information it did receive.
“I ask you, don’t fall into the gaps on behalf of the state,” he said. “They didn’t necessarily prove that a sex act even occurred.”
Public defender Adrian King, representing Bailey, said the case comes down to one thing, unanswered questions.
“The evidence just hasn’t been shown,” he said. “We need answers to find these boys guilty.”
King said the answers don’t exist.
In a rebuttal, assistant prosecutor Cheri Stout questioned the defense’s tactics.
“The defense is asking you to believe they didn’t have sex, or if they did, it was consensual or she wasn’t impaired,” Stout said. “You can’t have it both ways.”
She added that the defense wants the jury to believe the victim had sex with two others, but not Bailey and Putnam. Stout also cited the medical examination, which a sexual assault nurse examiner said showed injuries she has seen maybe two times out of 100 cases.
“She couldn’t stop Chance and T.J.,” Stout said. “We have given you enough for beyond the reasonable doubt.”
