State v. Newlon ( 2024 )

[Cite as State v. Newlon, 2024-Ohio-3433.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. CT2023-0085
JASON NEWLON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2023-0126
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 6, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD WELCH APRIL CAMBELL
Prosecuting Attorney 345 Metro Place, Suite 100
BY: JOSEPH A. PALMER Dublilne, OH 43017
Assistant Prosecutor
27 North Fifth Street
Zanesville, OH 43702
Muskingum County, Case No. CT2023-0085 2
Gwin, P.J.
{¶1} Defendant-appellant Jason G. Newlon [“Newlon”] appeals his convictions
and sentences after a jury trial in the Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶2} On February 23, 2023, the Muskingum County Grand Jury returned an
Indictment charging Newlon with thirty-one counts each relating to claims of sexual
abuse by his three step-daughters.
Counts 1 through 7 were for acts committed against C.D.
{¶3} Count 1 and Count 2 alleged Gross Sexual Imposition, victim less than 13
years old, occurring from August 13, 2017 through August 12, 2019, felonies of the third
degree in violation of R.C. 2907.05(A)(4) / (C)(2);
{¶4} Count 3 alleged Rape of a victim less than 13 years old, with a specification
alleging force or threat of force, occurring from August 13, 2017 - August 12, 2019, a
felony of the first degree, in violation of R.C. 2907.02(A)(1)(b) / (B);
{¶5} Count 4 and Count 6 alleged Gross Sexual Imposition with an allegation
alleging force or threat of force, occurring from August 13, 2021 - August 12, 2022,
felonies of the fourth degree in violation of R.C. 2907.05(A)(1) / (C)(1);
{¶6} Count 5 alleged Rape, with a specification alleging force or threat of force,
occurring from August 13, 2021 – August 12, 2022, a felony of the first degree, in
violation of R.C. 2907.02(A)(2) / (B); and
{¶7} Count 7 alleged Endangering Children causing serious physical harm,
occurring from August 13, 2017 - August 12, 2022, a felony of the second degree in
violation of R.C. 2919.22(B)(2) / (E)(3).
Muskingum County, Case No. CT2023-0085 3
Counts 8 to 24 were for acts alleged by C.D.’s sister, C.B.
{¶8} Count 8, Count 9 and Count 12 alleged Gross Sexual Imposition (August 8,
2013 - August 7, 2014), victim less than 13 years old, felonies of the third degree in
violation of R.C. 2907.05(A)(4) / (C)(2);
{¶9} Count 10, alleged Rape (August 8, 2013 - August 7, 2014) by force / threat
of force, a felony of the first degree in violation of 2907.02(A)(2) / (B);
{¶10} Count 11 alleged Gross Sexual Imposition (August 8, 2013 - August 7,
2015) by force / threat of force, a felony of the fourth degree in violation of R.C.
2907.05(A)(1) / (C)(1);
{¶11} Counts 13, 14, 15 and 16 alleged Rape (August 8, 2013 - August 7, 2015)
by force / threat of force, felonies of the first degree in violation of 2907.02(A)(2) / (B);
{¶12} Count 17 alleged Rape (August 8, 2013 - August 7, 2014), victim less than
13 years old by force / threat of force, a felony of the first degree in violation of R.C.
2907.02(A)(1)(b) / (B);
{¶13} Count 18 alleged Rape (August 8, 2014 - August 7, 2015), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶14} Count 19 alleged Rape (August 8, 2015 - August 7, 2016), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶15} Count 20 alleged Rape (August 8, 2016 - August 7, 2017), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶16} Count 21 alleged Rape (August 8, 2017 – August 7, 2018), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
Muskingum County, Case No. CT2023-0085 4
{¶17} Count 22 alleged Rape (August 8, 2018 – August 7, 2019), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶18} Count 23 alleged Rape (August 8, 2019 - August 7, 2020), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶19} Count 24 alleged Endangering Children (August 8, 2013 - August 7, 2019),
causing serious physical harm, a felony of the second degree in violation of R.C.
2919.22(B)(2) / (E)(3).
Counts 25 to 31 were for acts alleged by Z.B.
{¶20} Count 25 and Count 26 alleged Gross Sexual Imposition (August 8, 2012 -
August 7, 2013), victim less than 13 years old, felonies of the third degree in violation of
R.C. 2907.05(A)(4) / (C)(2);
{¶21} Count 27 alleged Rape (August 8, 2016 - August 7, 2017), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶22} Count 28 alleged Rape (August 8, 2017 - August 7, 2018), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶23} Count 29 alleged Rape (August 8, 2018 - August 7, 2019), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶24} Count 30 alleged Rape (August 8, 2019 - August 7, 2020), by force / threat
of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / (B);
{¶25} Count 31 alleged Endangering Children (August 8, 2012 - August 7, 2019),
causing serious physical harm, a felony of the second degree in violation of R.C.
2919.22(B)(2) / (E)(3).
{¶26} A jury trial commenced on August 1, 2023.
Muskingum County, Case No. CT2023-0085 5
Z.B. testifies that Newlon sexually abused her
{¶27} Z.B. was born August 8, 2001. 1T. at 2121. C.B. is her twin sister and C.D.
is her fifteen-year-old sister. Id. at 213. Newlon was married to the children’s mother,
Amy Newlon. Id.
{¶28} Z.B. testified that Newlon began sexually abusing her by touching her
breasts and vagina under her clothes. Id. at 216-217. The abuse began when the family
lived at 1051 Adams Circle and continued when the family moved to 2457 Michael Drive.
Id. at 215; 259. While living on Adams Circle, Z.B. was force to stroke Newlon’s penis.
Id. at 223. While living on Michael Drive, Newlon began putting his finger in Z.B.’s vagina.
Id. at 219; 224. Newlon forced his penis into her vagina at least five times. Id. at 221;
223; 226. Newlon would threaten to beat her, her mother, and cause her mother to lose
custody of her and her sibling if she were to tell on him. Id. at 221.
{¶29} Z.B. remembered trying to resist Newlon; however, he would hold her tightly
so that she could not move. 1T. at 222 -223; 229. She testified to the fear inside her
during these encounters. Id. Newlon wrapped his legs around hers and “bear hugged”
her so that she could not move at all. Id. at 222. Newlon would then force his penis inside
her vagina. Id. at 223. He would grind against her until he got his penis inside of her. Id.
{¶30} Z.B. testified that she had to repeat fourth grade because her confidence
and concentration were affected by the molestation that was taking place. 1T. at 218;
240. Although it was difficult to remember precise dates and times, Z.B. believed the
abuse began when she was nine years old. 1T. at 224. Z.B. testified that Newlon raped
1 For clarity, the transcript of Newlon’s jury trial will be referred to as “__T.__” signifying the volume
number and the page number.
Muskingum County, Case No. CT2023-0085 6
her more than five times. Id. at 224-226. She testified that Newlon raped her at least
once a year until she moved out of the home in August 2020. Id. at 227-229. Newlon’s
threats continued throughout this time period. Id. at 230. Z.B. testified that she believed
Newlon would hurt her because he had gotten physically violent with her. 1T. at 230. At
one point, Newlon gave Z.B. a black eye when he punched her. Id. at 230-231.
{¶31} Z.B. testified that she told Newlon’s sisters, Kimberly Newlon and Rachel
Shackleford, that Newlon had sexually abused her, after Z.B. moved out of the house in
2020. Id. at 231-233; 235; 236. This conversation took place at Shackleford’s place of
employment. Id. Later that week, Z.B. told her godmother, Melissa Bottomly, and her
grandmother, Sarah Barrett, about the abuse. Id. at 235-236. Z.B. went to the police at
the urging of her family. Id. at 237-238.
{¶32} Z.B. testified that she now suffers from severe anxiety and depression, as
well as anger as a result of being sexually abused by Newlon. 1T. at 239-240.
C.B. testifies that Newlon sexually abused her
{¶33} Z.B.’s twin sister, C.B. was born August 8, 2001. 1T. at 256. C.B. testified
that she, her siblings and her mother moved in with Newlon when C.B. was in the third
grade. Id. at 260. C.B. testified that the sexual abuse began at the home on 1051 Adams
Circle. Id.
{¶34} C.B. remembered Newlon asking her to come into his bedroom and rub his
stomach because his stomach was bloated and hurt. 1T. at 260 - 261. As C.B. rubbed
Newlon’s stomach, he began to push her hand down under his pants to rub his penis.
Id. at 261. Newlon would then reach over and begin touching C.B. under her clothes.
Newlon would pull C.B.’s clothing aside and would rub his penis on the outside of C.B.’s
Muskingum County, Case No. CT2023-0085 7
vagina. Id. at 262. C.B. testified that Newlon’s penis was not erect, but would become
erect as she continued to rub it. Id. at 263. C.B. testified that Newlon would always begin
the sexual abuse by complaining that his stomach hurt and asking her to rub it. Id. at
265. He would always touch her breasts and her vagina with his hands. Id. C.B. testified
that the abuse occurred twice a week. Id. She testified that she was abused by Newlon
more than thirty times from the age of twelve through the age of fifteen. Id. at 266 - 267.
Newlon began putting his penis into C.B.’s vagina when she was twelve to thirteen years
old. Id. at 268. C.B. testified that Newlon forced his penis into her anus and her mouth
around this time. Id. at 270. Newlon would push her head down and force his penis into
her mouth. Id.; 1T. at 272. Newlon would tell C.B. that it’s okay, it’s normal to explore. Id.
at 271. C.B. testified that this happened over one hundred times from the age of twelve
through the age of eighteen. Id. at 272-273. Newlon forced his penis into C.B.’s anus on
two occasions when she was thirteen years old. Id. at 273-275. Newlon would threaten
to punish C.B. if she did not cooperate. Id. at 279.
{¶35} C.B. was with Z.B. when they disclosed to their mother, Kimberly and
Rachel. 1T. at 280- 281. She claimed the group “guilt tripped” the girls into not reporting
the incidents to the authorities. Id. C.B. took her younger sister C.D. to the police station
after discovering inappropriate pictures on her I-Pad. Id. at 284-285.
{¶36} C.B. testified that Newlon would take pictures of her when she was asleep
in her bedroom. Id. at 287. He would later tell her that he deleted them only to have them
reappear at a later time. Id. at 287-288.
{¶37} C.B. testified that as a result of the years of sexual abuse by Newlon she
felt suicidal and thought of ending her life. 1T. at 285-286.
Muskingum County, Case No. CT2023-0085 8
The girls’ mother, Amy Newlon, testifies
{¶38} Amy met Newlon fourteen years ago. 1T. at 297. They were married July 9,
2011. Id. at 298. She divorced Newlon at the beginning of 2023. Id. She and Newlon
have two children together, twins, born September 3, 2014. Id. at 299.
{¶39} Amy testified that she thought it was odd that Newlon would ask the children
to rub his stomach; however, she did not want to believe anything inappropriate was
going on. Id. at 301 - 303. She further testified that Newlon was controlling. Id. at 304.
Amy was not allowed to have her family visit, or to take the children anywhere, even the
grocery store. Id.
{¶40} Amy testified that she learned of the abuse when Newlon’s sister, Rachel
Shackleford, told her, when Amy met her at Shackleford’s place of employment,
Shackleford’s Disposal. 1T. at 305. No one else was present at the time. Id. Amy
immediately kicked Newlon out of the house. Id. However, shortly later Newlon would
threaten to kill himself, her, and his kids unless she allowed him to return. Id. at 307.
{¶41} Amy testified that she did not report the abuse to the police because “it
wasn’t my story to tell. I couldn’t force them to go and tell.” 1T. at 307.
The youngest sister, C. D., testifies
{¶42} C.D., born August 8, 2007, the youngest of the three sisters, testified. 1T.
at 304. She told the jury that she was about eight years old when Newlon began to touch
her inappropriately. Id. at 315. She said Newlon stuck his fingers inside her vagina, and
then put his fingers in her mouth. Id. at 316. She then testified that when she turned
fourteen, Newlon started raping her. Id. at 318 -320. She also explained that Newlon
would threaten to kill himself if she told anyone. Id. at 323.
Muskingum County, Case No. CT2023-0085 9
{¶43} She then explained that her sister C.B. took her to the sheriff's office. Id. at
324. She testified that she told C.B. about the abuse, because she had her phone taken
from her. There were inappropriate pictures on it, as well as text messages between her
and her friend about these allegations. Id. at 327.
{¶44} C.D. testified that she was interviewed at Nationwide Children's Hospital.
1T. at 324.
The girls’ godmother testifies.
{¶45} Melissa Chapman Bottomly, the girls’ godmother, also testified. She
explained that Z.B. disclosed the abuse to her November 2, 2020. 2T. at 342- 344.
Bottomly did not report the abuse; however, she encouraged Z.B. to report it. Id. at 344.
The forensic interviewer testifies.
{¶46} Carolyn Vineyard, who conducted the interview with C.D., at Nationwide
Children’s Hospital on September 21, 2022 also testified. Id. at 356. The video of her
forty-five-minute interview was played for the jury. Id. at 362; State's Exhibit 2. Over
objection a redacted version of Vineyard’s report was also admitted into evidence.
State’s Exhibit 1. 356-357.
The State moves to amend the indictment.
{¶47} After the state rested, the state moved to amend the indictment on counts
one through three to include the two-year period before what was stated in the
indictment, because C.D. testified that the sexual abuse began when she was nine years
old, not eleven years old. 2T. at 398. Newlon did not object. The trial judge granted the
amendment to change the date of the offenses in Counts 1-3 to August 13, 2015 from
August 13, 2017. Id.
Muskingum County, Case No. CT2023-0085 10
Newlon’s sisters testify
{¶48} Kimberly Newlon and Rachel Shackleford, Newlon’s sisters, each testified
for the defense. 2T. at 399; 409. Each testified that none of the girls ever disclosed to
her that Newlon was sexually abusing them. Id. at 402; 415. Each further testified that
no meeting ever took place at Shackleford’s Disposal in which Newlon’s sexual abuse
of any of the girls was discussed. Id.
The jury finds Newlon guilty on all counts
{¶49} After the close of the evidence and instructions by the trial judge, the jury
returned verdicts of guilty on all counts. 2T. at 547-554. The trial judge asked each side
to submit a sentencing memorandum, and a presentence investigation report was
ordered. Sentencing was deferred. Id. at 556-557.
Sentence
{¶50} Sentencing took place on September 25, 2023. The trial judge sentenced
Newlon as follows,
Count 1: 60 months; Count 2: 60 Months; Count 3: life w/o possibility
of parole for 25 years; Count 4: 18 months; Count 5: 11 years; Count 6: 18
months; Count 7: 8 years; Count 8: 60 months; Count 9: 60 months; Count
10: life w/o possibility of parole for 25 years; Count 11: 18 months; Count
12: 60 months; Count 13: 11 years; Count 14: 11 years; Count 15: 11 years;
Count 16: 11 years; Count 17: life w/o possibility of parole for 25 years;
Count 18: 11 years; Count 19: 11 years; Count 20: 11 years; Count 21: 11
years; Count 22: 11 Years; Count 23: 11 years; Count 24: 8 years; Count
25: 60 months; Count 26: 60 months; Count 27: a minimum term of 11 years
Muskingum County, Case No. CT2023-0085 11
an indefinite term of 16 1/2 years; Count 28: 11 years; Count 29: 11 years;
Count 30: 11 years; and Count 31: 8 years.
{¶51} The trial judge further ordered:
Provided however, the periods of incarceration imposed on
Counts One through Seven shall be served concurrently with one another
for an aggregate prison term of life without the possibility of parole for
twenty-five (25) years; Counts Eight through Twenty-four shall be served
concurrently with one another for an aggregate prison term of life without
the possibility of parole for twenty-five (25) years; Counts Twenty-five
through Thirty-one shall be served concurrently with one another for an
aggregate prison term of a minimum eleven (11) years to an indefinite
maximum sixteen and one half (16 1/2) years; Counts One through Seven
shall be served consecutively to Counts Eight through Twenty-four for an
aggregate prison term of life without the possibility of parole for fifty (50)
years; Counts Twenty-five through Thirty-one shall be served consecutively
to Counts One through Twenty-four for an aggregate prison term of life
without the possibility of parole for a minimum of sixty-one (61) years to an
indefinite maximum sixty-six and one half (66 1/2) years.
Assignments of Error
{¶52} Newlon raises seven Assignments of Error,
{¶53} “I. THE TRIAL COURT ERRED IN AMENDING NEWLON'S INDICTMENT
AS TO COUNTS ONE THROUGH THREE TO COVER A TWO-YEAR TIME FROM
WHEN THE VICTIM WAS NINE AND TEN.
Muskingum County, Case No. CT2023-0085 12
{¶54} “II. THE INTRODUCTION OF INADMISSIBLE EVIDENCE WAS
REVERSIBLY PREJUDICIAL IN NEWLON'S TRIAL.
{¶55} “III. THE EVIDENCE AGAINST NEWLON WAS LEGALLY INSUFFICIENT
OF THE RAPE COUNTS TO WHICH R.C. 2971.03 APPLIES, SHOULD BE
REVERSED. THE EVIDENCE AGAINST NEWLON OF SERIOUS PHYSICAL HARM
AS TO THE CHILD ENDANGERING COUNTS, SHOULD BE REVERSED.
{¶56} “IV. THE MANIFEST WEIGHT OF THE EVIDENCE WEIGHS IN FAVOR
OF NOT CONVICTING NEWLON.
{¶57} V. NEWLON'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS
COUNSEL WAS PREJUDICIALLY INEFFECTIVE.
{¶58} VI. NEWLON'S CONVICTIONS SHOULD BE REVERSED DUE TO
PROSECUTORIAL MISCONDUCT IN REBUTTAL CLOSING REMARKS.
{¶59} VII. NEWLON WAS DENIED HIS RIGHT TO A FAIR TRIAL IN THIS CASE
BECAUSE OF CUMULATIVE ERROR.
I.
{¶60} In his First Assignment of Error, Newlon claims the trial judge erred by
granting the state’s amendment of the indictment to change the time period for Counts
1, 2 and 3 to include the two-year period before what was stated in the indictment,
because C.D. testified that the sexual abuse began when she was nine years old, not
eleven years old. Newlon did not object. The trial judge granted the amendment to
change the date of the offenses in Counts 1-3 to August 13, 2015 from August 13, 2017.
Id. Specifically Newlon contends that he had no notice that he had to defend against
Muskingum County, Case No. CT2023-0085 13
allegations occurring in 2015 and the amendment changed the punishment for the
offenses.
{¶61} Because Newlon did not object he has forfeited all but plain error.
Standard of Review
{¶62} Crim.R. 52 affords appellate courts limited power to correct errors that
occurred during the trial court proceeding. The Rule distinguishes between errors to
which a defendant objected at trial [Crim.R. 52(a)] and errors that a defendant failed to
raise at trial. [Crim.R. 52(b)]. The main distinction between plain-error review, which is
the standard employed when a defendant failed to object at trial, and harmless-error
review, which is employed when a defendant did object, is the party that bears the
burden. See State v. Jones, 2020-Ohio-3051, ¶ 17-18. Under plain-error review, the
defendant bears the burden to demonstrate the requirements for review whereas under
harmless-error review, the state bears the burden to demonstrate that the error did not
affect the defendant’s substantial rights. Id. at ¶ 17-18. See, State v. Bond, 2022-Ohio-
4150, ¶7. While Crim.R. 52(a) precludes error correction only if the error “does not affect
substantial rights,” (emphasis added), Crim.R. 52(b) authorizes no remedy unless the
error does “affec[t] substantial rights.” (Emphasis added.). State v. Perry, 2004-Ohio-
118, ¶15 (2004), quoting United States v. Olano, 507 U.S. 725, 734-735 (1993).
{¶63} “To establish plain error under Crim.R. 52(b), [Newlon] must show that an
error occurred, that the error was obvious, and that there is ‘a reasonable probability that
the error resulted in prejudice,’ meaning that the error affected the outcome of the trial.”
(Emphasis omitted.) State v. McAlpin, 2022-Ohio-1567, ¶ 66, quoting State v. Rogers,
2015-Ohio-2459, ¶ 22. Accord State v. Bailey, 2022-Ohio-4407, ¶ 8. These elements are
Muskingum County, Case No. CT2023-0085 14
“conjunctive,” meaning “all three must apply to justify an appellate court’s intervention.”
Bailey at ¶ 9, citing State v. Barnes, 94 Ohio St.3d 21, 27(2002). Intervention by an
appellate court for plain error “is warranted only under exceptional circumstances to
prevent injustice.” Id. at ¶ 8, citing State v. Long, 53 Ohio St.2d 91(1978), paragraph
three of the syllabus.
{¶64} In order to show that an error affected substantial rights, the defendant must
demonstrate “a reasonable probability that the error resulted in prejudice - the same
deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis
deleted.) State v. Rogers, 2015-Ohio-2459, ¶ 22, citing United States v. Dominguez
Benitez, 542 U.S. 74, 81-83, (2004) (construing Fed.R.Crim.P. 52(b), the federal analog
to Crim.R. 52(B)). Bond at ¶ 22. The Court in Rogers reaffirmed that even if an accused
shows the trial court committed plain error affecting the outcome of the proceeding, the
appellate court is not required to correct it. Id. at ¶ 23. The Supreme Court stated:
[W]e have “admonish[ed] courts to notice plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’” Barnes at 27, 94 Ohio St.3d 21, 759 N.E.2d 1240,
quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
three of the syllabus.
Rogers, ¶ 23; State v. Perry, 101 Ohio St.3d 118, 120 (2004).
Time period of the sexual abuse
{¶65} We find instructive the case law that has developed concerning the failure
to provide exact dates upon which a sexual assault is alleged to have occurred. In those
cases, courts have found specificity as to the time and date of an offense is not required
Muskingum County, Case No. CT2023-0085 15
in an indictment. Under R.C. 2941.03: “an indictment or information is sufficient if it can
be understood therefrom: * * * (E) That the offense was committed at some time prior to
the time of filing of the indictment * * *.” An indictment is not invalid for failing to state the
time of an alleged offense or doing so imperfectly. The state is not required to prove that
an offense occurred on any specific date, but rather may prove that the offense occurred
on a date reasonably near that charged in the indictment. State v. Adams, 2002-Ohio-
5953, ¶ 8 (5th Dist.).
{¶66} If such is not fatal to an indictment, it follows that impreciseness and
inexactitude of the evidence at trial is not “per se impermissible or necessarily fatal to a
prosecution.” State v. Robinette, 1987 WL 7153 (5th Dist. Feb 27, 1987); State v. Davis,
2024-Ohio-1504, ¶ 18 (5th Dist.), appeal not allowed, 2024-Ohio-2576, ¶18. The
question in such cases is whether the inexactitude of temporal information truly
prejudices the accused’s ability fairly to defend himself. State v. Sellards, 17 Ohio St.3d
169(1985); State v. Gingell Ohio App.3d 364, 368 (1st Dist. 1982); State v. Kinney, 35
Ohio App.3d 84 (1st Dist. 1987). Newlon did not object, move for a continuance or move
for a mistrial when the state asked that the indictment be amended. Newlon has not
argued or alleged that the inexactitude prejudiced his ability to defend himself at trial.
{¶67} Grafted upon the question of prejudice is a problem that cases of child
abuse invariably present, i.e., a victim-witness who, due to tender years, does not have
the temporal memory of an adult and has problems remembering exact times. As this
court has noted, “[t]ime is neither essential nor an element of the crime of sexual battery.”
State v. Robinette, supra. In Robinette, this Court noted,
Muskingum County, Case No. CT2023-0085 16
We note that these particular cases often make it more difficult to
ascertain specific dates. The victims are young children who may
reasonably be unable to remember exact times and dates of psychologically
traumatic sexual abuses. This is especially true where the crimes involve
several instances of abuse spread out over an extended period of time.
State v. Humfleet (Sept. 9, 1985), Clermont App. No. CA84-04-031,
unreported, at 15. The problem is compounded where the accused and the
victim are related or reside in the same household, situations which often
facilitate an extended period of abuse. An allowance for reasonableness
and inexactitude must be made for such cases considering the
circumstances.
{¶68} In State v. Sellards, 17 Ohio St.3d 169 (1985), the Supreme Court gave two
examples of when the failure to provide specific dates and times could be prejudicial to
the accused. The Court first noted that if the age of the victim were an element of the
crime with which the accused had been charged and the victim bordered on the age
required to make the conduct criminal, then the failure to provide a more specific time
frame would be prejudicial. This is true because “specific dates of sexual conduct might
well have become critical to the accused’s ability to prepare a defense, since sexual
conduct toward one thirteen years of age or older would not constitute the offense of
rape as defined in the charged section of the criminal code, R.C. 2907.02(A)(3).”
Sellards, 17 Ohio St.3d at 172. The second situation is where “the defendant had been
imprisoned or was indisputably elsewhere during part but not all of the intervals of time
set out in the indictment. Again, under such circumstances, the inability of the state to
Muskingum County, Case No. CT2023-0085 17
produce a greater degree of specificity would unquestionably prejudice the defense.” Id.The Sellards court noted: “the record in this case does not indicate that the failure to
provide the accused with a specific date was a material detriment to the preparation of
his defense.
{¶69} In the case at bar, C.B. testified to numerous times that she was sexually
abused by Newlon. 1T. at 266; 272-273. Newlon’s defense was that none of the events
occurred. The indictment alleged the abuse continued through August 12, 2019. The
original indictment in the case at bar alleged incidents of sexual abuse dating from 2013.
See, Counts 8 - 18; Count 25. Accordingly, Newlon was on notice that he was required
to defend against allegations occurring before 2017, albeit for C.B. and Z.B. Whether
some acts of abuse of C.D. took place in 2015 as opposed to 2017 has not been shown
to be prejudicial to his defense at trial.
The amendment did not change the penalty for the offense for which Newlon was
convicted
{¶70} In State v. Davis, 2008-Ohio-4537, ¶ 12, the Ohio Supreme Court found
plain error when a trial court amended an indictment to allow a defendant to be
prosecuted for a higher degree of a crime.
{¶71} Pursuant to R.C. 2907.02(B), a trial court is authorized to sentence a
defendant for rape of a victim less than 13 years of age pursuant to R.C. 2907.02(A)(1)(b)
to either life without parole or one of three indefinite sentences pursuant to R.C.
2971.03(B). The Ohio Supreme Court clarified this sentencing scheme, stating that
“[w]hen a trial court does not sentence a defendant convicted under R.C.
2907.02(A)(1)(b) to life without parole under R.C. 2907.02(B), R.C. 2971.03(B) provides
Muskingum County, Case No. CT2023-0085 18
three possible indefinite sentences that may be imposed instead: 10 years to life, 15
years to life, or 25 years to life.” State v. Bowers, 2020-Ohio-5167, ¶ 5. The three possible
indefinite sentences are set out in R.C. 2971.03(B)(1) which provides:
[I]f the court does not impose a sentence of life without parole [under
R.C. 2907.02(B)], the court shall impose upon the person an indefinite
prison term consisting of one of the following:
(a) Except as otherwise required in division (B)(1)(b) or (c) of this
section, a minimum term of ten years and a maximum term of life
imprisonment.
(b) If the victim was less than ten years of age, a minimum term of
fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or
threat of force, or if the offender previously has been convicted of or pleaded
guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code
or to violating an existing or former law of this state, another state, or the
United States that is substantially similar to division (A)(1)(b) of that section,
or if the offender during or immediately after the commission of the offense
caused serious physical harm to the victim, a minimum term of twenty-five
years and a maximum of life imprisonment.
Emphasis added.
{¶72} In the case at bar, Count 3 of the Indictment alleged that Newlon committed
rape against a victim less than 13 years of age and purposefully compelled the victim to
submit by the use of force or threat of force. The jury made the specific finding on the
Muskingum County, Case No. CT2023-0085 19
verdict form that Newlon purposefully compelled C.D. to submit by the use of force or
threat of force. Therefore, pursuant to R.C. 2971.03(B)(1)(c) the trial judge was
authorized to impose the sentence of life imprisonment with parole eligibility after twenty-
five years, without regard to whether the victim was less than ten years of age.
Accordingly, in the case at bar, the amendment to the indictment did not increase the
punishment for the crime for which Newlon was indicted and convicted.
{¶73} We hold that Newlon has not demonstrated that there is a reasonable
probability that amending the Indictment resulted in prejudice, meaning that the error
affected the outcome of the trial. We decline to find a manifest injustice warranting the
extraordinary step of finding plain error by allowing the state to amend the Indictment.
{¶74} Newlon’s First Assignment of Error is overruled.
II.
{¶75} In his Second Assignment of Error, Newlon contends that the admission of
prejudicial other acts evidence and hearsay warrant a reversal of his convictions.
{¶76} Newlon concedes that he did not object to the other acts evidence;
therefore, he has forfeited all but plain error. For our standard of review, see, Assignment
of Error I, supra.
Evid.R. 404 – Other Acts Evidence
{¶77} Evidence of a person’s character is generally not admissible to prove that
the person acted in conformity therewith on a particular occasion. Evid.R. 404(A).
Likewise, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” Evid.R. 404(B)
does allow “evidence of the defendant’s other crimes, wrongs, or acts to be admitted for
Muskingum County, Case No. CT2023-0085 20
other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. The key is that the evidence must
prove something other than the defendant’s disposition to commit certain acts.” State v.
Hartman, 2020-Ohio-4440, ¶ 22; State v. Knuff, 2024-Ohio-902, ¶115.
{¶78} When evidence is challenged as inadmissible other-acts evidence, a trial
court must perform a three-step analysis:
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the accused
in order to show activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those stated in
Evid.R. 404(B). The third step is to consider whether the probative value of
the other acts evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R. 403.
State v. Williams, 2012-Ohio-5695, ¶ 19-20; see also Hartman at ¶ 24-33; Knuff at ¶ 116.
Issue for Appellate Review: Whether but for the admission of his past violent
acts against the victim, himself or others, the jury would have acquitted Newlon.
{¶79} Newlon first cites to the testimony of Z.B. in which she told the jury Newlon
blackened her eye. 1T. at 230-231. He additionally cites to the testimony of his ex-wife
that he threatened to kill himself, her, and the children if she did not allow him to return
to the marital residence. 1T. at 307.
Muskingum County, Case No. CT2023-0085 21
{¶80} In the case at bar, the evidence concerning Newlon’s violence toward Z.B.
was relevant to explain why Z.B. believed that Newlon would hurt her, her mother or her
siblings if she disclosed the abuse to anyone or did not submit to his perverse sexual
demands. 1T. at 230. Further, the indictment alleged that Newlon purposefully compelled
the victims to submit by force or threat of force. Thus, “force” was an element that the
state had to prove beyond a reasonable doubt.
{¶81} The testimony from Amy Newlon was relevant to address the issue of why
Newlon was permitted to return to the residence after the allegations of sexual abuse
came to light. It further was relevant to explain Newlon’s control over the family, their fear
of Newlon, and their belief that he would carry through with his threats.
{¶82} Further, Newlon does not explain how the testimony that he now complains
of prejudiced him at trial in light of the other voluminous admissible evidence against
him. Newlon has thus failed to demonstrate a reasonable probability that the error
resulted in prejudice, meaning that the error affected the outcome of the trial.
Hearsay
{¶83} Evid.R. 801(C) defines hearsay as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.”
{¶84} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991).
“However, we review de novo evidentiary rulings that implicate the Confrontation Clause.
United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).” State v. McKelton, 2016-
Muskingum County, Case No. CT2023-0085 22
Ohio-5735, ¶97. De novo review is independent, without deference to the lower court's
decision.” State v. Hudson, 2013-Ohio-647, ¶ 27 (3rd Dist.), citing Ohio Bell Tel. Co. v.
Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
{¶85} We note that any error will be deemed harmless if it did not affect the
accused’s “substantial rights.” Before constitutional error can be considered harmless,
we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24 (1967).
{¶86} Hearsay is generally not admissible unless it falls within one of the
recognized exceptions. Evid.R. 802; State v. Steffen, 31 Ohio St.3d 111, 119(1987). “The
hearsay rule...is premised on the theory that out-of-court statements are subject to
particular hazards. The declarant might be lying; he might have misperceived the events
which he relates; he might have faulty memory; his words might be misunderstood or
taken out of context by the listener. And the ways in which these dangers are minimized
for in-court statements-the oath, the witness’ awareness of the gravity of the
proceedings, the jury’s ability to observe the witness’ demeanor, and, most importantly,
the right of the opponent to cross-examine-are generally absent for things said out of
court.” Williamson v. United States, 512 U.S. 594, 598 (1994).
Issue for Appellate Review: Whether the admission of hearsay during the
testimony of C.B and in the recommendations contained in State’s Exhibit 1 contributed
to Newlon’s conviction in any meaningful degree
{¶87} Newlon first argues that the trial judge erred in permitting the state to
introduce hearsay. He points only to the following testimony by C.B.,
Muskingum County, Case No. CT2023-0085 23
When we had our meeting, it was me, Mom, [Z.B.], Kim, and Rachel.
I didn’t really tell her details. Rachel had just basically told me the same
thing happened to you, something similar happened to [Z.B.]
1T. at 280-281. [Appellant’s brief at 13]. This testimony does not relate any specific out
of court statement. In addition, Amy Newlon [mom], Z.B., and Rachel Shackleford each
testified and were subject to cross-examination. Newlon and Z.B. testified to the meeting
and the topic of the meeting. Shackelford denied the meeting ever occurred.
{¶88} Newlon has thus failed to demonstrate a reasonable probability that any
error in the admission of this testimony resulted in prejudice, meaning that the error
affected the outcome of the trial.
The recommendations contained in the report of the forensic examiner, State’s
Exhibit 1
{¶89} State’s Exhibit 1 is a twelve-page report from the Child Assessment Center
of Nationwide Children’s Hospital concerning C.D. Newlon only objected to the
recommendations of Alison Humphreys, LSW contained at page 9 and the
recommendations of Caroline Vineyard, LSW contained at page 12 of the document. 2T.
at 337-338. Newlon contends the introduction of these recommendations denied him his
right to confrontation. [Appellant’s brief at 13].
{¶90} The Confrontation Clause of the Sixth Amendment states, “In all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses
against him.” Out-of-court statements by a witness which are testimonial in nature are
barred, under the Confrontation Clause, unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness. Crawford v.
Muskingum County, Case No. CT2023-0085 24
Washington, 541 U.S. 36 (2004). If testimony qualifies as nonhearsay, it does not
implicate the Confrontation Clause. Id. at 59, citing Tennessee v. Street, 471 U.S. 409,
414 (1985); State v. Maxwell, 2014-Ohio-1019, ¶131.
{¶91} In State v. Arnold, 2010-Ohio-2742, the Ohio Supreme Court considered
the admissibility of statements made during interviews at child-advocacy centers. Arnold
involved a Confrontation Clause challenge. The issue in Arnold was whether a child’s
statements during an interview were for medical diagnosis or treatment, making them
“non-testimonial,” or whether they primarily served a forensic or investigative purpose,
making them “testimonial” in violation of the defendant’s confrontation rights. The
Supreme Court noted that child-advocacy centers are unique insofar as a single
interview with a child serves “dual purposes,” which are: “(1) to gather forensic
information to investigate and potentially prosecute a defendant for the offense and (2)
to elicit information necessary for medical diagnosis and treatment of the victim.”
{¶92} The recommendations to which Newlon objects simply indicate that C.D.
should receive trauma counseling or therapy. The recommendations are nontestimonial
because the primary purpose of the report was not to create a record for trial but for
purposes of medical diagnosis and treatment. See, White v. Illinois, 502 U.S. 346, 356–
357, (1992), and fn. 8.
{¶93} Even assuming arguendo that the trial judge should have redacted the
recommendations before allowing the jury to review State’s Exhibit 1, we find any error
to “be harmless beyond a reasonable doubt, did not have an impact on the jury, and did
not contribute to appellant’s conviction in any meaningful degree.” State v. Rahman, 23
Ohio St.3d 146,151(1986). The jury heard each of the victims testify in detail to the years
Muskingum County, Case No. CT2023-0085 25
of sexual abuse inflicted upon her by Newlon. There is no evidence in the record that the
jury abandoned their oaths, their integrity or the trial court’s instructions and found
Newlon guilty based upon the testimony that it was recommended C.D. receive trauma
therapy.
{¶94} Newlon’s Second Assignment of Error is overruled.2
III.
{¶95} In his Third Assignment of Error, Newlon first argues that the evidence
concerning the element of “force or threat of force” to support the rape charges was
insufficient. He next contends that the state failed to prove that Newlon’s years of
sexually abusing his step-daughters caused the children “serious physical harm.”
Standard of Appellate Review – Sufficiency of the Evidence
{¶96} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. 99 (2013); Hurst v. Florida, 577 U.S. 92 (2016). The test for the sufficiency of the
evidence involves a question of law for resolution by the appellate court. State v. Walker,
2016-Ohio-8295, ¶30; State v. Jordan, 2023-Ohio-3800, ¶13. “This naturally entails a
review of the elements of the charged offense and a review of the state's evidence.”
State v. Richardson, 2016-Ohio-8448, ¶13.
{¶97} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259(1991),
2 We will address Newlon’s contentions concerning the prosecutor’s remarks during closing
argument in our disposition of Newlon’s Sixth Assignment of Error.
Muskingum County, Case No. CT2023-0085 26
paragraph two of the syllabus, superseded by State constitutional amendment on other
grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, (1997); Walker, 150
Ohio St.3d at ¶30. “The relevant inquiry is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph two of
the syllabus. State v. Poutney, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for
evidentiary sufficiency we do not second-guess the jury's credibility determinations;
rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of
the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516,
543(2001), quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at
¶31. We will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable
minds could not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111
Ohio St.3d 70, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997); State v.
Montgomery, 148 Ohio St.3d 347, ¶74.
Rape – force or threat of force
Issue for Appellate Review: Whether, after viewing the evidence in the light
most favorable to the prosecution, the evidence, if believed, would convince the
average mind that Newlon was guilty beyond a reasonable doubt of Rape
{¶98} Newlon was convicted of force / threat of force rape in violation of R.C.
2907.02(A)(2). R.C. 2097.02 provides,
(A)(2) No person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by force or threat
of force.
Muskingum County, Case No. CT2023-0085 27
{¶99} “Sexual conduct” means vaginal intercourse between a male and female;
anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal opening of another.
Penetration, however slight, is sufficient to complete vaginal or anal intercourse. R.C.
2907.01(A).
{¶100} “Force” is defined as “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1).
{¶101} R.C. 2907.02(A)(2) / (B) requires the victim's submission to sexual conduct
to be obtained by force or threat of force. The force element needed to prove the offense
of gross sexual imposition is the same as it is for rape. State v. Riggs, 2005-Ohio-5244,
¶120 (10th Dist.); State v. Biggs, 2022-Ohio-2481, ¶16 (5th Dist.) We further note,
corroboration of a victim’s testimony in rape cases is not required. State v. Johnson,
2006-Ohio-6404, ¶ 53.
{¶102} In State v. Eskridge, 38 Ohio St.3d 56, 58-59 (1988), the Supreme Court of
Ohio found the amount of force required to meet this requirement varies depending on
the age of the victim and the relationship between the victim and the defendant. Id. at ¶
58. However, some amount of force must be proven beyond the force inherent in the
crime itself. State v. Dye, 82 Ohio St.3d 323, 327 (1998).
{¶103} Here, the victims were not adults when each was sexually assaulted by
Newlon. Each victim was a minor and still considered a child. The Ohio Supreme Court
has stated that “it is nearly impossible to imagine the rape of a child without force
involved,” State v. Dye, 82 Ohio St.3d 323, 327(1998), and the Court has noted “the
Muskingum County, Case No. CT2023-0085 28
coercion inherent in parental authority when a father sexually abuses his child,” State v.
Eskridge, 38 Ohio St.3d 56, 58 (1988). “‘The youth and vulnerability of children, coupled
with the power inherent in a parent’s position of authority, creates a unique situation of
dominance and control in which explicit threats and displays of force are not necessary
to effect the abuser’s purpose.’” Id. at 59, quoting State v. Etheridge, 319 N.C. 34, 47,
352 S.E.2d 673 (1987); Disciplinary Counsel v. Goodman, 2024-Ohio-952, ¶24.
{¶104} In the case at bar, Newlon lived with the victims throughout the period that
he abused them. He was married to the mother of the children and occupied the role of
a father in the family.
{¶105} Z.B. testified that Newlon held her so that she could not move while raping
her. 1T. at 222-223. He further threatened her, and she testified to her fear. Id. at 223.
Newlon was violent with Z.B. causing her not to resist. Id. at 230.
{¶106} C.B. testified that Newlon threatened to punish her if she resisted. Id. at
279. Newlon would push her hand or her head down to his penis. Id. at 261-262; 265;
270-271. Newlon would force his penis into C.B.’s anus. Id. at 274.
{¶107} C.D. testified the Newlon put his fingers into her vagina and then into her
mouth. 1T. at 316. In his bed, Newlon took her clothes off, turned her over and pit his
penis in her vagina. Id. at 320. Newlon threatened to kill himself if she told anyone. Id. at
323.
{¶108} The girls did not consent to any of the actions of Newlon. They were not
willing participants. It is clear from the record that each girl submitted because of the
parental authority exercised over her by Newlon.
Muskingum County, Case No. CT2023-0085 29
{¶109} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Newlon did commit the crime of rape by force or threat of force. We hold, therefore, that
the state met its burden of production regarding each element of the crime of Rape for
which Newlon was indicted and, accordingly, there was sufficient evidence to submit the
charge to the jury and to support Newlon’s conviction.
Gross Sexual Imposition – serious physical harm
Issue for Appellate Review: Whether, after viewing the evidence in the light
most favorable to the prosecution, the evidence, if believed, would convince the
average mind that Newlon was guilty beyond a reasonable doubt of causing serious
physical harm to his victims
{¶110} Newlon was convicted of Endangering Children in violation of R.C.
2919.22; however, he concedes that the evidence was sufficient to convict him of
the offense pursuant to R.C. 2919.22(A). Newlon’s focus is solely upon the sentence
enhancing element,
(E)(1) Whoever violates this section is guilty of endangering
children.
(2) If the offender violates division (A) or (B)(1) of this section,
endangering children is one of the following, and, in the circumstances
described in division (E)(2)(e) of this section, that division applies:
…
Muskingum County, Case No. CT2023-0085 30
(c) If the violation is a violation of division (A) of this section and
results in serious physical harm to the child involved, a felony of the third
degree;
{¶111} R.C. 2901.01 statutorily defines “serious physical harm” in relevant part,
(5) “Serious physical harm to persons” means any of the
following:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric treatment.
{¶112} Newlon argues that the state failed to prove that any of his victims
“suffered from any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment.”
{¶113} This Court has previously noted the degree of harm which rises to level
of “serious” physical harm is not an exact science, given the definition uses terms
such as “substantial,” “temporary,” “acute” and “prolonged.” State v. Holsinger, 2017-
Ohio-1378, ¶35 (5th Dist.). The extent or degree of a victim’s injuries is “normally a
matter of the weight rather than the sufficiency of the evidence.” Id.
{¶114} In the case at bar, Z.B. testified that she suffers from severe anxiety,
depression and panic attacks. 1T. at 240. She repeated fourth grade as a result of
her lack of focus and esteem brought on by the repeated abuse from Newlon. Id.
{¶115} C.B. testified that she was suicidal. 1T. at 285. She is in therapy and
taking medication for depression. Id. at 286.
{¶116} Trauma therapy was recommended for C.D. State’s Exhibit 1.
Muskingum County, Case No. CT2023-0085 31
{¶117} In the case at bar, the children suffered repeated instances of sexual
abuse for years at the hands of her step-father. Based upon the evidence presented
during trial, it is not unreasonable to conclude that the abuse resulted in serious
psychological trauma and that the trauma would require treatment well into the
future.
{¶118} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt
that Newlon did cause serious physical harm to each child. We hold, therefore, that
the state met its burden of production regarding each element of the crime of
Endangering Children as a felony of the third degree for which Newlon was indicted
and, accordingly, there was sufficient evidence to submit the charge to the jury and
to support Newlon's convictions.
{¶119} Newlon’s Third Assignment of Error is overruled.
IV.
{¶120} In his Fourth Assignment of Error, Newlon contends his convictions are
against the manifest weight of the evidence. Specifically, he argues that the children
held multiple meetings about sexual abuse in which they testified that two parties
participated, Kimberly Newlon and Rachel Shackleford. However, Newlon notes that
neither party corroborated that these events, or that the sexual act disclosures,
occurred. Therefore, he argues that competing inferences suggest that he did not
commit the multiple acts of sexual abuse for which he was convicted. [Appellant’s
brief at 17].
Muskingum County, Case No. CT2023-0085 32
Standard of Review – Manifest Weight
{¶121} The term “‘manifest weight of the evidence’. . . relates to persuasion.”
Eastley v. Volkman, 2012-Ohio-2179, ¶19. It “concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387(1997),
superseded by constitutional amendment on other grounds as stated by State v. Smith,
80 Ohio St.3d 89, 102 at n.4 (1997); State v. Martin, 2022-Ohio-4175, ¶ 26.
{¶122} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d at 386–387;
State v. Issa, 93 Ohio St.3d 49, 67 (2001).
{¶123} Weight of the evidence addresses the evidence's effect of inducing belief.
Thompkins, at 386-387; State v. Williams, 2003-Ohio-4396, ¶83. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
the fact finder’s resolution of the conflicting testimony. State v. Jordan, 2023-Ohio-3800;
Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42(1982) (quotation marks
omitted); State v. Wilson, 2007-Ohio-2202, ¶25, citing Thompkins.
{¶124} In weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact.” Eastley, 2012-Ohio-2179 at ¶ 21. “The
underlying rationale of giving deference to the findings of the trial court rests with the
knowledge that the [trier of fact] is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
Muskingum County, Case No. CT2023-0085 33
credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80 (1984).
{¶125} When there is conflicting testimony presented at trial, a defendant is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence
was presented. “‘If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict and judgment.’” Seasons Coal
Co., Inc at fn. 3, quoting 5 Ohio Jur.3d, Appellate Review, §603, at 191-192 (1978); In re
Z.C., 2023-Ohio-4703, ¶14.
{¶126} The interplay between the presumption of correctness and the ability of an
appellate court to reverse a verdict based on the manifest weight of the evidence has
been stated as follows, “’Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence.’” Seasons Coal Co., 10 Ohio St.3d
at 80, quoting C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280 - 281.
See, also, Frankenmuth Mut. Ins. Co. v. Selz, 6 Ohio St.3d 169, 172 (1983); In re
Sekulich, 65 Ohio St.2d 13, 16 (1981). “The central question is whether ‘there is
substantial evidence upon which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’ (Emphasis sic.) State v. Getsy, 84 Ohio
St.3d 180, 193-194, 702 N.E.2d 866 (1998), citing State v. Eley, 56 Ohio St.2d 169, 383
N.E.2d 132 (1978), syllabus, superseded by constitutional amendment on other grounds
as stated in Smith, 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668(1997).” State v.
Nicholson, 2024-Ohio-604, ¶71. A manifest-weight challenge should be sustained “‘only
Muskingum County, Case No. CT2023-0085 34
in the exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st
Dist. 1983); Nicholson at ¶71.
{¶127} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. Bryan-Wollman v. Domonko, 2007-Ohio-4918, ¶ 2-4, citing Thompkins at
paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered
{¶128} In Cross v. Ledford, 161 Ohio St. 469, 477(1954), the Supreme Court
cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the
impression which the testimony of the witnesses makes upon the trier of
facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
Muskingum County, Case No. CT2023-0085 35
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
{¶129} Because Z.B., C.B., C.D., Rachel Shackleford and Kimberly Newlon
testified, the jury was able to judge for themselves the witness’s appearance on the
stand, manner of testifying, the reasonableness of their testimony, the accuracy of
memory, frankness or lack of it, and any bias she may have. The fact that the jury chose
not to believe the testimony of Newlon’s sisters does not make his convictions against
the manifest weight of the evidence. “While the trier of fact may take note of the
inconsistencies and resolve or discount them accordingly * * * such inconsistencies do
not render defendant’s conviction against the manifest weight or sufficiency of the
evidence.” State v. Craig, 1999 WL 29752 (10th Dist. Mar 23, 2000) citing State v. Nivens,
1996 WL 284714 (10th Dist. May 28, 1996). Indeed, the trier of fact need not believe all
of a witness’ testimony, but may accept only portions of it as true. State v. Raver, 2003–
Ohio–958, ¶ 21 (10th Dist.), citing State v. Antill, 176 Ohio St. 61, 67(1964); State v.
Burke, 2003–Ohio–2889 (10th Dist.), citing State v. Caldwell, 79 Ohio App.3d 667 (4th
Dist. 1992).
{¶130} We find that this is not an “‘exceptional case in which the evidence
weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380,
386–387, (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.). Based
upon the entire record in this matter, we find Newlon’s convictions are not against
the sufficiency or the manifest weight of the evidence. To the contrary, the jury
Muskingum County, Case No. CT2023-0085 36
appears to have fairly and impartially decided the matters before them. The jury
heard the witnesses, evaluated the evidence, and was convinced of Newlon’s guilt.
{¶131} Finally, upon careful consideration of the record in its entirety, we find
as set forth above, there is substantial evidence on which the jury could properly
conclude beyond a reasonable doubt that Newlon committed the acts for which he
was indicted and convicted. State v. Nicholson, 2024-Ohio-604, ¶75. Therefore, in
light of the evidence, as well as the record in its entirety, we find the jury clearly did
not lose its way concluding that Newlon was guilty. We find that the jury did not
disregard or overlooked compelling evidence that weighed against conviction.
{¶132} Newlon’s Fourth Assignment of Error is overruled.
V.
{¶133} In his Fifth Assignment of Error, Newlon contends that trial counsel was
ineffective for failing to object to other acts and hearsay testimony [Assignment of
Error 2]; and for failing to object to remarks in the state’s closing argument.
[Assignment of Error, 7, infra].
Standard of Appellate Review – Ineffective Assistance of Counsel
{¶134} To prevail on a Sixth Amendment claim alleging ineffective assistance
of counsel, a defendant must show that his counsel's performance was deficient and
that his counsel's deficient performance prejudiced him. Strickland v. Washington,
466 U.S. 668, 694(1984). To show deficiency, a defendant must show that “counsel's
representation fell below an objective standard of reasonableness.” Id., at 688, 104
S.Ct. 2052. And to establish prejudice, a defendant must show “that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
Muskingum County, Case No. CT2023-0085 37
proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. Andtus v. Texas,
590 U.S. 806, 813-814 (2020).
Issue for Appellate Review: Whether there is a reasonable probability that,
but for counsel's failure to object the result of the proceeding would have been
different.
{¶135} In our disposition of Newlon’s Second Assignment of Error, we found
the evidence concerning Newlon’s violence toward Z.B. was relevant to explain why Z.B.
believed that Newlon would hurt her, her mother or her siblings if she disclosed the abuse
to anyone or did not submit to his perverse sexual demands. 1T. at 230. We further found
the testimony from Amy Newlon was relevant to address the issue of why Newlon was
permitted to return to the residence after the allegations of sexual abuse came to light.
{¶136} As the evidence to which he now complains was admissible, trial counsel
was not ineffective for failure to object to the testimony.
{¶137} Testimony concerning the alleged sexual assault by Newlon’s brother upon
their sisters, Rachel Shackleford and Amy Newlon, was relevant because it indicated
that those assaults were not reported and kept quiet by the family. 2T. at 407- 408; 420.
This was directly related to why the witnesses would deny meeting with, or ever speaking
to, the victims about Newlon sexually abusing them.
{¶138} Accordingly, we find Newlon fails to demonstrate either the deficit
performance or prejudice that Strickland requires to support his allegation of ineffective
assistance of counsel.
{¶139} Newlon’s Fifth Assignment of Error is overruled.
Muskingum County, Case No. CT2023-0085 38
VI.
{¶140} In his Sixth Assignment of Error, Newlon contends the prosecutor
committed error during closing argument by improperly inflaming the passions of the
jurors.
{¶141} Newlon did not object to the comments he now assigns as error. Therefore,
he has forfeited all but plain error.
Standard of Appellate Review – Plain Error
{¶142} Recently, the Ohio Supreme Court reviewed claims of plain error and
stated,
To prevail under the plain-error standard, the defendant must show
that an error occurred, that it was obvious, and that it affected his substantial
rights. Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d
1240 (2002) (an error affects substantial rights only when it affects the
outcome of the trial). “Notice of plain error under Crim.R. 52(B) is to be taken
with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph three of the syllabus.
State v. Nicholson, 2024-Ohio-604, ¶114. See also, State v. Knuff, 2024-Ohio-902, ¶117.
{¶143} In Knuff, the Supreme Court addressed the appropriate standard of review
for addressing claims of prosecutorial misconduct during closing argument,
We assess prosecutorial misconduct in closing arguments by asking
“‘whether the remarks were improper and, if so, whether they prejudicially
affected [the] substantial rights of the defendant.’” State v. Hessler, 90 Ohio
Muskingum County, Case No. CT2023-0085 39
St.3d 108, 125, 734 N.E.2d 1237 (2000), quoting State v. Smith, 14 Ohio
St.3d 13, 14, 470 N.E.2d 883 (1984). A conviction may be upheld in the face
of a prosecutor’s improper remarks when it is “clear beyond a reasonable
doubt that the jury would have returned a verdict of guilty” regardless of the
comments. United States v. Hasting, 461 U.S. 499, 511-512, 103 S.Ct.
1974, 76 L.Ed.2d 96 (1983) (new trial unwarranted despite prosecutor’s
improper argument because of “overwhelming evidence of guilt and the
inconsistency of the scanty evidence tendered by the defendants”).
State v. Knuff, 2024-Ohio-902, ¶238.
Issue for Appellate Review: Whether but for the prosecutor’s remarks during
closing argument the jury would have acquitted Newlon.
{¶144} Newlon points to only the following remark made by the prosecutor during
rebuttal closing argument,
You can say Amy’s not a good mother. She didn’t protect the kids.
She let them down. You can say Rachel and Kim aren’t good aunts and
they didn’t protect the kids. They let them down. The question is if you
believe them, are you going to let them down or are you going to protect
them? Thank you.
2T. at 500. [Appellant’s brief at 18-19].
{¶145} The prosecutor may not invite the jury to judge the case upon standards or
grounds other than the evidence and law of the case. Thus, he cannot inflame the
passion and prejudice of the jury by appealing to community abhorrence or expectations
with respect to crime in general, or crime of the specific type involved in the case. United
Muskingum County, Case No. CT2023-0085 40
States v. Solivan, 937 F.2d 1146 (6th Cir. 1991). State v. Draughn, 76 Ohio App.3d 666,
670-671 (5th Dist. 1992).
{¶146} The fact that the prosecutor engaged in some improper argument, however,
does not warrant reversal unless the remarks prejudicially affected substantial rights of
the accused. State v. Hessler, 90 Ohio St.3d 108, 125 (2000). In making this
determination, we must consider the effect of any misconduct in the context of the entire
trial. State v. Keenan, 66 Ohio St.3d 402, 410 (1993). We must also view the prosecutor's
closing argument in its entirety when determining prejudice. State v. Hill, 75 Ohio St.3d
195, 204 (1996).
{¶147} In the case at bar, even though the prosecutor's remark was improper, the
single comment did not pervade the entire trial, let alone the closing argument. Under
these circumstances, there is nothing in the record to show that the jury would have
found Newlon not guilty had the comments not been made on the part of the prosecution.
State v. Benge, 75 Ohio St.3d 136, 141(1996); State v. McMillen, 2009-Ohio-210, ¶¶
111-112 (5th Dist.).
{¶148} In light of the entire record, the prosecutor’s remarks did not prejudicially
affect Newlon’s substantial rights so as to deny him a fair trial.
{¶149} Newlon’s Sixth Assignment of Error is overruled.
VII.
{¶150} In his Seventh Assignment of Error, Newlon argues the cumulative effect of
the erroneous admission of evidence and, the prosecutor’s misconduct, resulted in the
denial of his right to a fair trial.
Muskingum County, Case No. CT2023-0085 41
{¶151} In State v. Brown, 2003-Ohio-5059, the Ohio Supreme Court recognized
the doctrine of cumulative error. The cumulative error doctrine does not apply, however,
where the defendant “cannot point to ‘multiple instances of harmless error.’” State v.
Mammone, 2014-Ohio-1942, ¶ 148 quoting State v. Garner, 74 Ohio St.3d 49, 64,
(1995).
{¶152} In the instant case, we have found no instance of error. The doctrine of
cumulative error is therefore inapplicable.
{¶153} Newlon’s Seventh Assignment of Error is overruled.
{¶154} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Wise, J., and
King J., concur