State v. Kelly ( 2024 )

[Cite as State v. Kelly, 2024-Ohio-1612.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29774
:
v. : Trial Court Case No. 2018 CR 04548
:
GARY KELLY : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
...........
OPINION
Rendered on April 26, 2024
...........
KRISTIN L. ARNOLD, Attorney for Appellant
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Gary Kelly was found guilty after a bench trial in the
Montgomery Court of Common Pleas of gross sexual imposition and public indecency
based on conduct that occurred in 2018 with M.D. In a separate jury trial, he was found
guilty of three counts of rape, one count of attempted rape, and six counts of gross sexual
imposition stemming from his conduct with two sisters, A.M. and L.M., between 1987 and
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1993. With one exception, each count alleged that the victim was younger than 13 years
old when the conduct occurred. The trial court found that Kelly was a sexually oriented
offender, a Tier III sex offender, and a sexually violent predator, and it sentenced him to
a combination of definite and indefinite sentences totaling 15 years to life in prison.
{¶ 2} Kelly appeals from his convictions. He claims that the trial court should have
dismissed the charges related to A.M. and L.M. as outside the statute of limitations, that
his trial counsel was ineffective for withdrawing his motion to suppress, that the court
should have granted his Crim.R. 29(A) motion on the counts related to M.D., and that the
court made various evidentiary errors during the bench and jury trials. For the following
reasons, the trial court’s judgment will be affirmed as to Counts 5-10 (L.M.) and Counts
14 and 16 (M.D.) and vacated as to Counts 1-4 (A.M.).
I. Facts and Procedural History
{¶ 3} In the late 1980s and early 1990s, when he was in his early 20s, Kelly resided
with family friends in a residence in Moraine. The family consisted of parents and three
children: a son, E.M. (born 1977), and daughters A.M. (born 1978) and L.M. (born 1981).
Kelly worked for the children’s father and slept primarily in the son’s attic bedroom. For
several months in 1990 and 1991, the mother’s friend, Tamara, and her children also lived
with the family. After a separate unit in the building became available for rent, Tamara
moved next door and resided there for a year and a half to two years. Tamara observed
several incidents between Kelly and A.M. that she thought were inappropriate, though
she did not notice anything regarding Kelly and L.M. At some point, A.M. told her mother
that she had been molested and raped by Kelly, and they went to the police.
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{¶ 4} There is conflicting evidence about when the police were first notified of
Kelly’s behavior. According to A.M.’s and Tamara’s jury trial testimony, in the fall of
1991, A.M. came downstairs in the early morning and told her mother about Kelly’s
conduct. When Kelly returned from work that evening, the family kicked him out of their
home. A.M. and her mother went to the Moraine police department to report Kelly’s
behavior the same day.
{¶ 5} In early August 1993, Kelly sexually assaulted A.M.’s friend, J.C., and the
girls separately went to the Moraine police department to report Kelly’s conduct. On
August 7, 1993, A.M. disclosed that Kelly had repeatedly touched her privates,
masturbated in front of her, touched her bottom, and licked her stomach in September
1991. The narrative section of the police report indicated that A.M. had confided in her
mother the night before coming to the police, August 6, 1993. J.C. filed a police report
on August 8, 1993. A.M.’s mother communicated to the Moraine police in September
1993 that she wanted to have Kelly prosecuted, but it appears little investigation was
conducted, and the allegations did not lead to any charges at that time.
{¶ 6} In 2018, Kelly lived in a single-family home in Dayton with his longtime
girlfriend, Tracy Hall, and his adult daughter. In March 2018, Cheyenne Shelton, who
had previously lived with Kelly and Hall in an informal foster arrangement, moved back
into their home. While there, Shelton babysat several of her friends’ children, including
four-year-old M.D. M.D. often stayed with Shelton for the weekend and had regular
contact with Kelly.
{¶ 7} On July 7, 2018, M.D. told her mother that Kelly “showed her his wee wee”
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and had her touch it. M.D.’s mother went to her sister’s home, which was nearby, and
M.D. made similar statements to her aunt. Later that day, M.D.’s mother contacted law
enforcement. A police investigation ensued, and M.D. was interviewed by CARE House
and referred for therapy. Kelly agreed to be interviewed by Detective Joshua Spears,
and he traveled to the police station for an interview on August 7, 2018.
{¶ 8} During the course of his investigation, Detective Spears learned of other
potential victims, including A.M. The investigation led to new disclosures by A.M.’s
sister, L.M.
{¶ 9} On December 7, 2018, Kelly was indicted on two counts of gross sexual
imposition (under 13) and one count of public indecency, all related to his conduct with
M.D. Later that month, Kelly moved to suppress his statements to the police, claiming a
violation of his Miranda rights. Defense counsel withdrew the motion to suppress on
February 1, 2019, prior to any hearing on the motion.
{¶ 10} On April 11, 2019, the State filed a 16-count superseding indictment alleging
six counts related to A.M. (five rapes and one attempted rape, Counts 1-6), seven counts
related to L.M. (one rape and six gross sexual impositions, Counts 7-13), and three counts
related to M.D. (two gross sexual impositions and one public indecency, Counts 14-16).
Count 6, one of the rape charges regarding A.M., alleged a violation of R.C. 2907.02(A)(2)
involving force or threat of force. The other rape, attempted rape, and gross sexual
imposition counts all alleged that the victim had been under the age of 13. The two gross
sexual imposition counts regarding M.D. also included sexually violent predator
specifications. The State subsequently dismissed the original indictment. Kelly waived
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his right to a jury trial, and a bench trial was scheduled for October 21, 2019.
{¶ 11} Numerous motions were filed during the pendency of Kelly’s case. On
September 23, 2019, the State filed a notice of intent to introduce the statements M.D.
had made to her mother, therapist, and the CARE House forensic interviewer pursuant to
Evid.R. 807 and 803(4) if M.D. were unavailable at trial. The State indicated that “[t]he
potential unavailability of M.D. is based upon the fact that, given her young age, there is
a possibility that she may not be found competent to testify at trial, or simply may be
unable to testify when faced with the pressures of trial.” On September 26, 2019, the
court determined that M.D. was competent to testify. However, it scheduled a hearing
on the State’s Evid.R. 807 motion, and the trial was continued until March 2020.
{¶ 12} On February 21, 2020, Kelly moved to sever the original three charges
concerning M.D. (Counts 14-16) from the 13 counts concerning A.M and L.M. The trial
court granted the motion, and the trial on Counts 14-16 was set for the week of March 16,
2020. Kelly requested a bench trial for those charges.
{¶ 13} On March 12, 2020, Kelly filed a motion in limine seeking to prevent the
State from introducing evidence of prior bad acts, specifically evidence related to Counts
1-13, including all information, testimony, and evidence related to those allegations,
Kelly’s police interview in which those acts were discussed, and questions of defendant
about prior bad acts for which he had not been convicted or tried.
{¶ 14} On March 16, 2020, the court filed an agreed entry regarding M.D.’s
statements. The order identified M.D.’s mother, her aunt, and the forensic interviewer
who had witnessed statements by M.D. The order stated that, “[a]t the [Evid.R. 807]
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hearing, the parties agree that – in the event that the child victim is deemed ‘unavailable’
at trial, and if the other conditions of Evid.R. 807 are properly met, the statements offered
by the above-listed witnesses would be properly admissible under Evid.R. 807. This
agreement does not limit any other applicable rules of evidence which may apply to the
same statements, and reflects only the parties’ agreement with regard to Evid.R. 807.”
{¶ 15} The next day, however, Kelly moved to continue the bench trial due to the
COVID-19 pandemic. The trial court granted the motion and rescheduled the bench trial
for August 17, 2020. A few days before the scheduled bench trial, the court filed an
amended entry regarding Evid.R. 807 statements. The amended agreed order provided
that if M.D.’s testimony were “not reasonably obtainable” under Evid.R. 807(B), the parties
stipulated that the remaining Evid. 807 requirements were satisfied and M.D.’s statements
would be admissible. However, the trial date was again continued.
{¶ 16} On October 27, 2020, Kelly filed an amended motion in limine to exclude
prior bad acts, which sought to preclude the State from presenting evidence of certain
conduct between Kelly and M.D., along with his behavior with other victims. At a pretrial
conference, the State agreed to Kelly’s motion.
{¶ 17} The bench trial on Counts 14 to 16 ultimately was held in May 2021. The
State called ten witnesses, the first of which was M.D. After questioning by the State,
the State moved for M.D. to be declared unavailable under Evid.R. 807. The motion was
granted over defense counsel’s objection. The State then presented the testimony of
M.D.’s mother, aunt, father, and father’s girlfriend; Shelton; Frances Duncan, M.D.’s
therapist; Jennifer Knisley, the CARE House forensic interviewer; Hall; and Detective
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Spears. Several exhibits were admitted into evidence, including photos of Kelly’s home,
text messages, pictures drawn by M.D. during therapy, and video-recordings of M.D.’s
forensic interview, Kelly’s interview with Detective Spears, and M.D.’s conversation with
her father’s girlfriend. After deliberating, the trial court found Kelly guilty of Counts 14
(gross sexual imposition) and 16 (public indecency), but not guilty of Count 15 (gross
sexual imposition).
{¶ 18} The jury trial on Counts 1-13 was scheduled for August 23, 2021, but that
date was continued several times; the jury trial was ultimately rescheduled for August
2022. In April 2022, Kelly moved to dismiss Counts 1-13 with prejudice on the ground
that the statute of limitations on the rape and gross sexual imposition claims had expired
before he was indicted. After a hearing, the trial court overruled the motion.
{¶ 19} On August 8, 2022, Kelly filed a motion in limine seeking an order allowing
the defense to cross-examine A.M. and L.M. on statements and medical information
contained in their medical records. The court overruled the motion, reasoning that the
information was “immaterial and irrelevant to the issues at bar.”
{¶ 20} On August 10, 2022, the State dismissed Counts 1, 3, and 7 of the
indictment and asked the court to renumber the remaining counts related to A.M. and
L.M. as Counts 1 through 10. The trial court granted the motion.
{¶ 21} The matter proceeded to a jury trial on Counts 1-10 on August 16, 2023.
A.M. and L.M. both testified for the State, as well as E.M., their brother; Tamara, their
mother’s friend; Brenda Miceli, a pediatric psychologist; Steve Ackerman, Kelly’s friend;
and Detective Spears. The State also offered several exhibits. Kelly did not offer any
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evidence on his behalf. The jury found Kelly guilty of all counts.
{¶ 22} Over several days in May 2022, August 2022, January 2023, and March
2023, the trial court conducted a hearing on the sexually violent predator specification for
Count 14. At the beginning of the sentencing hearing on April 11, 2023, the trial court
found that the sexually violent predator specification applied. The trial court also
designated Kelly a sexually oriented offender and a Tier III sex offender. It sentenced
Kelly to an aggregate term of 15 years to life in prison, as detailed in the chart below. It
also ordered Kelly to pay restitution of $750 to L.M.
New
Count Victim Offense Statute Degree Sentence
#
1 N/A A.M. Rape (<13) 2907.02(A)(1)(b) F1 Dismissed
2907.02(A)(1)(b)
2 1 A.M. Attempted Rape (<13) F2 Mand 7 yrs
/ 2923.02(A)
3 N/A A.M. Rape (<13) 2907.02(A)(1)(b) F1 Dismissed
4 2 A.M. Rape (<13) 2907.02(A)(1)(b) F1 Mand 10 yrs
5 3 A.M. Rape (<13) 2907.02(A)(1)(b) F1 Mand 10 yrs
6 4 A.M. Rape (force or threat of force) 2907.02(A)(2) F1 Mand 10 yrs
7 N/A L.M. Rape (<13) 2907.02(A)(1)(b) F1 Dismissed
8 5 L.M. Gross Sexual Imposition (<13) 2907.05(A)(4) F3 Mand 3 yrs
9 6 L.M. Gross Sexual Imposition (<13) 2907.05(A)(4) F3 Mand 3 yrs
10 7 L.M. Gross Sexual Imposition (<13) 2907.05(A)(4) F3 Mand 3 yrs
11 8 L.M. Gross Sexual Imposition (<13) 2907.05(A)(4) F3 Mand 3 yrs
12 9 L.M. Gross Sexual Imposition (<13) 2907.05(A)(4) F3 Mand 3 yrs
13 10 L.M. Gross Sexual Imposition (<13) 2907.05(A)(4) F3 Mand 3 yrs
Mand 5 to
Gross Sexual Imposition (<13)
14 14 M.D. 2907.05(A)(4) F3 Life (Consec
with SVP Spec.
to Cts 1-10)
Gross Sexual Imposition (<13)
15 15 M.D. 2907.05(A)(4) F3 Acquitted
with SVP Spec.
30 days in
16 16 M.D. Public Indecency 2907.09(A)(1) M4
jail
{¶ 23} Kelly appeals from his convictions, raising seven assignments of error. His
first, second, third, fourth, and fifth assignments of error concern the counts related to
M.D., and his remaining two assignments of error concern the counts related to A.M. and
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L.M. We will address them in an order that facilitates our analysis.
II. Denial of Crim.R. 29(A) Motion at Bench Trial
{¶ 24} We begin with Kelly’s fourth assignment of error, which claims that the trial
court erred in denying his Crim.R. 29(A) motion on Counts 14-15, the gross sexual
imposition charges, during the bench trial.1 Kelly asserts that the State failed to present
sufficient evidence of any type of touching with M.D. Because the trial court acquitted
Kelly of Count 15, only Count 14 is currently at issue. According to the bill of particulars,
Count 14 alleged that Kelly committed gross sexual imposition by causing M.D. to touch
his penis with her hand between June 29, 2018 and July 7, 2018.
{¶ 25} Crim.R. 29(A) states that when a motion for acquittal is made after the
evidence on either side is closed, a court shall enter a judgment of acquittal “if the
evidence is insufficient to sustain a conviction” for the charged offense. “A motion for
acquittal under Crim.R. 29(A) is governed by the same standard as the one for
determining whether a verdict is supported by sufficient evidence.” State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. “A sufficiency of the evidence
argument challenges whether the State has presented adequate evidence on each
element of the offense to allow the case to go to the jury or sustain the verdict as a matter
of law.” State v. Finn, 2d Dist. Montgomery No. 22914, 2009-Ohio-4949, ¶ 15, citing
State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).
{¶ 26} “An appellate court’s function when reviewing the sufficiency of the
1
Kelly’s Crim.R. 29(A) motion did not challenge the sufficiency of the State’s evidence as
to Count 16, public indecency, and he does not raise the sufficiency of the evidence for
that charge on appeal. See Bench Tr. at 420.
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evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a 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.”
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 27} When reviewing the sufficiency of the evidence, “the court does not engage
in a determination of the witnesses’ credibility.” State v. Goff, 82 Ohio St.3d 123, 139,
694 N.E.2d 916 (1998), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. Rather, the relevant inquiry is whether the
evidence presented, if believed, was sufficient to support the conviction. State v. Jones,
166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16, citing Thompkins at 390.
The verdict will not be disturbed on appeal unless “the appellate court finds that
reasonable minds could not reach the conclusion reached by the trier-of-fact.” State v.
Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jenks at 273.
{¶ 28} Kelly was convicted of gross sexual imposition in violation of R.C.
2907.05(A)(4). This provision provides, in part, that “[n]o person shall have sexual
contact with another * * * [or] cause another * * * to have sexual contact with the offender,”
if the other person is less than 13 years of age. R.C. 2907.05(A)(4); State v. Gau, 2d
Dist. Montgomery No. 29786, 2023-Ohio-4205, ¶ 8. “Sexual contact” means “any
touching of an erogenous zone of another, including without limitation the thigh, genitals,
buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually
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arousing or gratifying either person.” R.C. 2907.01(B).
{¶ 29} “The purpose of sexually arousing or gratifying either person is an essential
element of R.C. 2907.05(A)(4).” State v. Curtiss, 2d Dist. Montgomery No. 29006, 2022-
Ohio-146, ¶ 146, quoting In re Moore, 10th Dist. Franklin No. 04AP-581, 2004-Ohio-6357,
¶ 11. However, the trier of fact may infer from the totality of the circumstances whether
the purpose of the touching was for the defendant’s sexual arousal or gratification. State
v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 43 (2d Dist.). Relevant considerations
include the area(s) of the body being touched and the absence of evidence of accidental
touching. Curtiss at ¶ 143.
{¶ 30} In this case, the State presented substantial evidence that Kelly caused
four-year-old M.D. to have sexual contact with him. According to multiple witnesses,
M.D. stayed overnight at Kelly’s home during the weekend of June 29 to July 2, 2018.
M.D.’s mother testified that on July 7, 2018, while M.D’s two-year-old brother was
stepping into a pull-up diaper, M.D. said that Kelly “showed her his wee wee and had her
touch it.” Bench Tr. at 51. Mother called her older sister (Aunt), with whom she was
close, and went to her house, where Aunt spoke with M.D. Aunt testified that M.D. said
that Kelly “pulled his thing out” and “asked her to touch it.” Bench Tr. at 108. After M.D.
spoke with her aunt, Mother talked to her again. M.D. repeated that Kelly “made her
touch his wee wee.” Bench Tr. at 55. M.D. told her mother that this had happened more
than once. Id. M.D.’s father further testified that, shortly after M.D. disclosed Kelly’s
behavior to her mother, M.D. told him that “she was laying on [Kelly’s] lap and he showed
her his wee-wee, and he asked her to touch it, and she did.” Bench Tr. at 311.
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{¶ 31} Frances Duncan, M.D.’s therapist, testified about statements and drawings
that M.D. had made during her weekly therapy sessions. Duncan stated that she talked
with M.D. about “red flag touches,” which are not okay. Bench Tr. at 154. Duncan
explained that “red flag touches” occur when someone touches private parts of your body
where you wear your swimsuit or your underwear. Id. M.D. told Duncan that Kelly had
given her red flag touches. Bench Tr. at 155.
{¶ 32} M.D. told Duncan during a therapy session on October 5, 2018, that she
had touched Kelly’s penis. Duncan testified that she asked M.D. if Kelly had told her to
touch his “wee wee,” and M.D. said that he did. When Duncan asked if she did touch
his “wee wee,” M.D. “became very defensive and said, ‘he told me to.’ ” Bench Tr. at
177. M.D. made similar statements at her October 10, 2018 appointment and at other
subsequent appointments. Id. at 178-179, 192, 198. M.D. told Duncan that it had
happened “a lot.” Id. at 179. On December 12, 2018, M.D. again said that Kelly “made
me touch it,” referring to Kelly’s penis. Id. at 198.
{¶ 33} M.D. drew several pictures of Kelly with an apparently erect penis and
talked about moving “back and forth and back and forth.” See State’s Ex. 35-44. She
frequently told Duncan that Kelly was “happy because of what he did,” and she mentioned
that when discussing some of the pictures she drew of Kelly. Bench Tr. at 180-183;
State’s Ex. 40-41.
{¶ 34} M.D. also expressed to several individuals that Kelly would be upset with
her for reporting his behavior. Mother testified that M.D. was initially scared of Kelly
being mad at her and that he would hurt her family; M.D. told her mother that Kelly “would
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be very upset with her if she told.” Bench Tr. at 69. During her interview at CARE
House, M.D. also told Jennifer Knisley, the forensic interviewer, that Kelly told her not to
tell.2 Bench Tr. at 277-278; State’s Ex. 32A. Discussing an August 2018 drawing during
therapy, M.D. told Duncan that Kelly “was sad because I didn’t keep it a secret.” Bench
Tr. at 162. Knisley explained at trial that instructions not to tell are significant, because
they help distinguish whether the alleged behavior is benign, such as when the child
accidentally sees something, “versus somebody intentionally doing something and then
acknowledging that this is something they don’t want to be talked about.” Bench Tr. at
278.
{¶ 35} Construing the evidence in the light most favorable to the State, the
evidence supported a conclusion that Kelly caused M.D. to touch his penis for the purpose
of providing him sexual gratification. M.D. was four years old when the incident occurred,
and she repeatedly stated that she touched Kelly’s penis because he told her to. M.D.
drew pictures that appeared to show Kelly with an erection, M.D. expressed to others that
Kelly’s sexual conduct with M.D. made him happy, and Kelly had instructed M.D. not to
disclose what he had done. The State’s evidence reasonably reflected that Kelly acted
for the purpose of his own sexual gratification and that he understood the wrongfulness
of his actions. Consequently, there was sufficient evidence to support Kelly’s conviction
for gross sexual imposition. The trial court did not err in denying his Crim.R. 29(A)
motion.
2
M.D. told Knisley during the CARE House interview that Kelly showed her his wee wee,
but she did not disclose any touching. Bench Tr. at 278; see State’s Ex. 32A. M.D. did
allude to something else having occurred, but she did not want to discuss it during the
interview. Id. at 284; State’s Ex. 32A.
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{¶ 36} Kelly’s fourth assignment of error is overruled.
III. Unavailability of M.D. as a Witness
{¶ 37} Kelly’s first assignment of error claims that the trial court erred in declaring
M.D. unavailable to testify at the bench trial pursuant to Evid.R. 807. He argues that
three of the four requirements in Evid.R. 807(A) for allowing M.D.’s hearsay statements
were not met.
{¶ 38} Under Evid.R. 801(C), “hearsay” is “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.” In general, hearsay is not admissible at trial. Evid.R. 802.
{¶ 39} “Evid.R. 807(A) allows out-of-court statements made by a child under the
age of twelve to be admitted where those statements describe a sexual act performed by,
with, or on the child.” In re A.E., 8th Dist. Cuyahoga No. 112615, 2023-Ohio-4217, ¶ 20.
Four criteria must be met before such statements are admissible: (1) the trial court must
find that the statement is trustworthy; (2) the child’s testimony “is not reasonably
obtainable by the proponent of the statement;” (3) independent proof of the act must exist;
and (4) at least ten days prior to the trial or hearing, the proponent of the statement must
provide written notice of the content of the statement, the time and place at which the
statement was made, the identity of the witness who is to testify about the statement, and
the circumstances surrounding the statement. Evid.R. 807(A)(1)-(4).
{¶ 40} We review the trial court’s determination that a child’s statement is
admissible under Evid.R.807 for an abuse of discretion. In re S.H.W., 2d Dist. Greene
No. 2015-CA-25, 2016-Ohio-841, ¶ 31.
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{¶ 41} On appeal, Kelly argues that the trustworthiness of M.D.’s statements,
whether independent evidence of sexual abuse existed, and whether M.D.’s testimony
was not reasonably obtainable are all at issue. However, on August 14, 2020, the trial
court filed an amended agreed entry concerning the State’s use of M.D.’s statements to
various individuals pursuant to Evid.R. 807. The agreed entry provided, in relevant part:
At the date of the hearing on the State’s Motion, three witnesses
were identified as witnesses to the child victim’s statements which are
offered as admissible pursuant to Evid.R. 807:
1) Mother C.K.
2) Aunt E.K.
3) Forensic Interviewer, Jennifer Knisley.
At the hearing, the parties agreed that, in the event that Evid.R.
807(A)(2) is satisfied - meaning, the Court determines that the child’s
testimony is “not reasonably obtainable” as defined in subsection(B) – then
the parties agree and stipulate that the remaining requirements of Evid.R.
807(A)(1), (3), and (4) are sufficiently satisfied and the statements would be
admissible.
This agreement does not limit any other applicable rules of evidence
which may apply to the same statements, and reflects only the parties’
agreement with regard to Evid.R. 807.
(Emphasis added.) Amended Joint/Agreed Entry (Aug. 14, 2020). After the prosecutor
asked the trial court to declare M.D. unavailable under Evid.R. 807 at the bench trial,
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defense counsel acknowledged that “the stipulation comes in after the court makes that
determination.” Bench Tr. at 28. Accordingly, Kelly has waived any argument that
Evid.R. 807(A)(1), (3), and (4) were not satisfied, and we will focus on the trial court’s
determination that M.D.’s testimony was “not reasonably obtainable” at trial.
{¶ 42} Evid.R. 807(B) provides three circumstances in which a child’s testimony
may be “not reasonably obtainable by the proponent of the statement.” Of relevance
here, the trial court may find a child’s testimony to be “not reasonably obtainable” when
“[t]he child refuses to testify concerning the subject matter of the statement or claims a
lack of memory of the subject matter of the statement after a person trusted by the child,
in the presence of the court, urges the child to both describe the acts described by the
statement and to testify.” Evid.R. 807(B)(1).
{¶ 43} M.D. was seven years old when the bench trial occurred. From the
beginning of her direct examination, M.D. was reluctant to answer the questions asked
by the prosecutor. She initially stated that she did not know her name and denied that
she could spell it or had to spell it in school. M.D. did provide her age when asked.
When reminded that she needed to tell the truth, M.D. gave her first name, but said she
did not know her last name or her father’s last name, although she agreed they had the
same last name. When provided her last name by the prosecutor, M.D. agreed that was
it.
{¶ 44} M.D. then became a bit more forthcoming. She indicated that she was in
first grade and had two teachers, and she provided their names. M.D. stated that she
did not know where she went to school but provided the school’s name upon further
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questioning. M.D. told the court who she lived with and who her father lived with,
although she said she did not know where her father lived.
{¶ 45} M.D. testified that she knew “Cheyenne” (Shelton) “because my mommy
knows her.” She acknowledged that Shelton used to babysit her. M.D. initially said that
she did not know who Shelton lived with, but then said “sometimes kids, sometimes
grownups.” Bench Tr. at 14. M.D. said she did not remember if Shelton babysat her in
a house or who else was there.
{¶ 46} M.D. indicated that she knew someone named Gary and that he lived with
Shelton; M.D. said she did not know his daughter or girlfriend. M.D. indicated that she
would “sometimes” stay overnight with Shelton, but she initially testified that no one else
would be there, including Kelly. When asked directly if Kelly would be there sometimes,
she responded, “Sometimes.” Bench Tr. at 15. M.D. also said her cousin and little
brother would sometimes stay there.
{¶ 47} M.D. repeatedly denied that she had talked with her mother about
something that had happened with Kelly. When asked if she did not want to talk about
it or did not remember, M.D. said she did not remember. M.D. repeatedly denied talking
to people at CARE House, to “Ms. Frances” (her therapist, Frances Duncan), or to her
father about it. M.D. testified that she did not know who Duncan was but indicated that
she colored and played with her. M.D. denied remembering anything that happened on
the couch at Kelly’s house, except that the dog chewed holes in the couch. She testified
that she did not see Kelly in the courtroom, and she said that she did not know several
others. When asked if there was “anything you can remember that happened that you
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think you should tell the Court about today,” M.D. responded, “no” and that she did not
remember.
{¶ 48} After a brief sidebar discussion, M.D.’s mother was brought into the
courtroom to encourage M.D. to testify. After speaking briefly with M.D., her mother said
that M.D. did not want to talk. The prosecutor asked if there was anything they could do
to make the experience less scary for her. M.D. replied, “No.” M.D.’s mother pointed
out to M.D. that she only needed to talk to the judge. When asked if she remembered
the judge, M.D. said no, even after her mother reminded her that she had seen him five
times.
{¶ 49} After M.D.’s mother again left the courtroom, M.D. reiterated that she did
not want to talk to the prosecutor, that she did not remember the things they had
discussed before, and that there was nothing the prosecutor could ask to help her testify.
After further attempts to elicit testimony from M.D., the prosecutor asked the trial court to
find that M.D.’s testimony was not reasonably obtainable and that she was unavailable
under Evid.R. 807.
{¶ 50} Defense counsel disagreed that M.D.’s testimony was not obtainable.
They argued that M.D. often replied, “I don’t know,” rather than “I don’t remember.”
Defense counsel further noted that M.D. indicated that she remembered Shelton and the
couch, and thus questioned whether she had an actual lack of memory. They further
noted that Duncan would be able to testify to M.D.’s statements regarding the alleged
crimes, as M.D.’s statements to her therapist were made for the purposes of medical
diagnosis. Counsel objected, however, to M.D.’s statements being admitted through
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other individuals.
{¶ 51} The State argued that “I don’t know” and “I don’t remember” were
“functionally equivalent” for a seven-year-old and that M.D.’s “guarding technique is to
shut down, avoid, ‘I don’t remember’, run around the room. Any combination of
avoidance techniques is consistent with, I think, what we’ve seen here today * * * when
she encounters something scary or hard to talk about * * *.” Bench Tr. at 29. The
prosecutor asserted that, whether it was actual lack of memory or a persistent refusal to
discuss what happened, M.D. would not be able to testify.
{¶ 52} The court ruled that Evid.R. 807(B) had been met, and it declared M.D.
unavailable.
{¶ 53} We find no abuse of discretion in the trial court’s ruling. M.D. was reluctant
to answer any of the prosecutor’s questions, including those that were clearly within her
knowledge and memory. While M.D. did answer several questions regarding her
schooling and family, she often did so only after first expressing that she did not know.
As the topic turned to the people and circumstances giving rise to the charges, M.D.
became increasingly reluctant to provide details and expressed a lack of memory. Even
after her mother came into the courtroom to encourage her, M.D. indicated that there was
nothing the prosecutor could do to make her less scared and willing to testify. Under
these circumstances, the trial court reasonably determined that M.D.’s testimony was not
reasonably obtainable.
{¶ 54} Kelly’s first assignment of error is overruled.
IV. Refreshed Recollection
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{¶ 55} Kelly’s second assignment of error claims that the trial court erred in
allowing lay witnesses to review a police report to refresh their recollections during the
bench trial. He argues that the report provided “the impression of the detective, not
actual statements made or written by the testifying witnesses.”
{¶ 56} When a witness lacks a present recollection of relevant events, a party may
use a writing or recording to refresh the witness’s recollection. See Evid.R. 612; State
v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 231 (“The state could
have refreshed [witness’s] recollection under Evid.R. 612 by showing her the videotaped
interview outside the jury’s presence.”). To accomplish this, “the witness looks at the
memorandum to refresh his [or her] memory of the events, but then proceeds to testify
upon the basis of his [or her] present independent knowledge.” State v. Scott, 31 Ohio
St.2d 1, 5-6, 285 N.E.2d 344 (1972); Ford at ¶ 230. “The testimony of the witness whose
recollection has been refreshed is the evidence, not the contents of the writing.” State
v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 57. The writing or
recording used to refresh a witness’s recollection is merely “a memory jogging device.”
State v. Turner, 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-144, ¶ 28.
{¶ 57} Evid.R. 612 does not discuss what types of writings are permitted to refresh
a witness’s recollection. Several Ohio appellate districts have expressly held that
Evid.R. 612 does not require the witness to have prepared the writing or recording used
to refresh the witness’s recollection. See, e.g., State v. O'Keefe, 11th Dist. Ashtabula
No. 2002-A-0015, 2004-Ohio-5300, ¶ 74, citing Weissenberger, Ohio Evidence, Section
612.3, 312 (2004); State v. Jewett, 10th Dist. Franklin No. 11AP-1028, 2013-Ohio-1246,
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¶ 65; State v. Rector, 7th Dist. Carroll No. 01 AP 758, 2002-Ohio-7442, ¶ 39 (“There is
no requirement in the rule that the witness must have prepared the writing being used to
refresh that recollection.”).
{¶ 58} In Jewett, the Tenth District permitted the use of a detective’s summary of
a witness’s interview to refresh the witness’s recollection. In that case, a homicide
detective interviewed a firefighter/paramedic who had provided medical treatment to the
victim outside the victim’s residence during the afternoon and then returned to the
residence that evening when the home was on fire with the victim deceased inside. The
recording of the interview was accidentally destroyed prior to trial, but the detective had
made a written summary of the interview. During his trial testimony, the paramedic
indicated that a review of the summary would refresh his recollection. Noting that the
“writing” discussed in Evid.R. 612 did not have to be an original document or recording,
nor did it have to be previously adopted by the testifying witness, the Tenth District
concluded that the trial court did not err in allowing the State to use the detective’s
summary to refresh the paramedic’s memory. Jewett at ¶ 65; see also State v. Osborne,
5th Dist. Knox No. 2005-CA-09, 2005-Ohio-6497, ¶ 19 (detectives could utilize the police
investigation report written by another detective to refresh their recollections of the events
pursuant to Evid. R. 612); Turner at ¶ 28-29 (no error in using 911 call log to refresh
witness’s memory about when she reported the incident). We find Jewett instructive.
{¶ 59} In this case, the State used Detective Spears’s “Detective Investigatory
Product” (State’s Ex. 46) and an Incident Detailed Report (State’s Ex. 47) to refresh the
recollections of M.D.’s mother and Tracy Hall, over defense counsel’s objections. The
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State first asked M.D.’s mother on redirect examination if she had ever told the police that
M.D. said that Kelly’s conduct happened more than once. Mother responded that she
did not remember telling the initial responding officer, and she said that looking at a copy
of his report would refresh her recollection. The State then asked Mother to look at the
narrative summary that Officer Adam Sharp had prepared at 5:33 p.m. on July 7, 2018
(State’s Ex. 46, p. 4). After reading it, M.D.’s mother testified that her memory had been
refreshed. She then stated that M.D. had told her it happened more than once and that
she (Mother) had told the officer. Bench Tr. at 92-93.
{¶ 60} Later in the redirect examination, M.D.’s mother indicated that she did not
remember identifying who had committed the sexual abuse during her 911 call. She
testified, “No, I think I just said that my four-year-old was sexually abused * * * and I
needed to speak with an officer.” Bench Tr. at 97. The prosecutor asked if reviewing
the Incident Detailed Report (State’s Ex. 47) would help refresh her recollection, and
Mother responded affirmatively. Bench Tr. at 97. Upon looking at the document,
Mother stated, “I don’t really know how to read this.” Id. at 98. After the prosecutor
pointed out the narrative portion, Mother confirmed that she never gave Kelly’s name to
the dispatcher. The prosecutor again referred Mother to Officer Sharp’s report to refresh
her memory as to whether she told the officer. Mother again stated that it had refreshed
her recollection and testified that she told Officer Sharp that the perpetrator was Kelly,
Shelton’s foster father.
{¶ 61} During Hall’s direct examination, Hall testified that she had confronted Kelly
about whether he displayed his penis to M.D., and Kelly admitted that he did; Kelly
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explained to Hall that M.D. was going to tell Shelton. Bench Tr. at 342. Hall stated that
either Kelly then walked out of the room or she did. When questioned if she had
confronted Kelly about his explanation, Hall indicated that she did not remember any more
of the conversation. The prosecutor asked if reviewing Detective Spears’s report would
refresh her recollection, and Hall responded, “Possibly. Yes.” After the trial court
overruled defense counsel’s objection, the prosecutor showed Hall the relevant
paragraph in Spear’s investigatory report. After reviewing the paragraph, Hall testified
that the conversation went “[j]ust like what I said. * * * Either he walked out or I did.”
Bench Tr. at 345.
{¶ 62} We find no error in the use of the police reports to refresh the witnesses’
recollections. Although neither witness authored the report that she reviewed, the
reports documented the witnesses’ prior statements to police officers. Both witnesses
testified that reviewing the exhibit(s) would assist them in refreshing their recollections,
and after reviewing the exhibit silently, the witnesses testified from their refreshed
memories. Defense counsel had access to both exhibits and could have cross-
examined the witnesses about them.
{¶ 63} Kelly’s second assignment of error is overruled.
V. Motion in Limine: Prior Bad Act
{¶ 64} In his third assignment of error, Kelly claims that the trial court erred in
overruling his motion in limine during the bench trial.
{¶ 65} In March 2020, defense counsel requested a motion in limine prohibiting the
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State from introducing any evidence of Kelly’s prior bad acts. Specifically, he argued
that evidence regarding the allegations in Counts 1-13, which concerned A.M. and L.M.,
was inadmissible under Evid.R. 401, 402, 403, and 404. He asked the court to preclude
the State from introducing evidence related to those charges, including all information,
testimony, and evidence related to those allegations, Kelly’s police interview in which
those acts were discussed, and questions asked of Kelly about prior acts for which he
had not been convicted or tried.
{¶ 66} On October 27, 2020, Kelly filed an amended motion in limine. This motion
added the following argument: “Additionally, the Defendant made statements to Detective
Spears during his recorded interview on this incident which did not lead to any charges.
Specifically, the Defendant states that the alleged victim climbed on his shoulders and
put her vagina in his face. The Defendant denied touching the alleged victim and this
statement did not result in any charges and is therefore irrelevant and inadmissible under
Evidence Rules 401 and 402.”
{¶ 67} At the beginning of the bench trial, defense counsel reminded the trial court
that he had filed a motion in limine and that “I think at the final pretrial, [the prosecutor]
and I agreed on the record that everything that was put in there that the State agrees with
me, barring any – us opening the door, of course.” Bench Tr. at 5. (The record does
not contain a transcript of this final pretrial conference.)
{¶ 68} During Detective Spears testimony on the second day of the bench trial,
however, the State played the portions of Kelly’s police interview in which he had said
that M.D. climbed on his shoulders and put her vagina in his face. See State’s Ex. 45A.
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Defense counsel objected and requested a mistrial, stating that this evidence was
contrary to the parties’ stipulation. The State initially responded that it had agreed only
not to mention other victims. However, the prosecutor later apologized, saying that she
had “missed that specific statement in [defense counsel’s] motion” and that she had not
intended to violate the terms of the motion in limine. The State argued, however, that
Kelly’s response to the allegations was relevant, was part of a course of events, and did
not constitute a prior bad act. Defense counsel countered that this incident was a
“separate act altogether” and was “completely irrelevant [and] extremely prejudicial.”
{¶ 69} The court allowed the interview to be played. It reasoned:
Well, whether it’s prior bad act. That’s really the question. You’re
saying it’s a prior bad act. It’s [a] separate and distinct act. The State
asserts as [sic] part of a continuous series of acts, continuous transaction
and occurrence. And if the evidence would reveal over – well, once we
hear everything, that your assertion, your version of this is correct, then I
will disregard it, and not consider it as evidence in this case.
***
The rules * * * on a motion in limine is it’s a tentative ruling by the
Court that’s made outside the context of hearing the evidence in its full
context. I haven’t heard the evidence in its full context. I could change
my ruling on the motion in limine. A court can do that. It’s a tentative initial
ruling by the Court to give some guidance to the parties in their execution
of the trial of a case. * * * [The motion in limine] was agreed, but the Court
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still has to adopt it. And the Court, as in any motion in limine, once hearing
the evidence in the full context, can decide that the evidence comes in, even
though it had maybe initially ruled that it was not. Just like in – if it was the
other way around, you know. If I’d said it comes in, and then I hear the full
context, defense could renew the motion in limine and ask the Court not to
consider it. And I could change. It’s the nature of motions in limine. We
don’t know, before the trial sometimes, what all the evidence is and how it
relates.
So you’ve noted – you’ve made your exception.
Bench Tr. at 373-375.
{¶ 70} “[I]n reviewing a bench trial, an appellate court presumes that a trial court
considered nothing but relevant and competent evidence in reaching its verdict. The
presumption may be overcome only by an affirmative showing to the contrary by the
appellant.” State v. Wiles, 59 Ohio St.3d 71, 86, 571 N.E.2d 97 (1991), citing State v.
Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987); State v. Chirco, 2d Dist.
Montgomery No. 29399, 2023-Ohio-22, ¶ 17. Even if we were to conclude that the
disputed portion of Kelly’s interview should not have been admitted, we must presume
that the trial court considered only the evidence relevant to the indicted charges, and the
record does not suggest that the court did otherwise. See State v. King, 2d Dist.
Champaign No. 2021-CA-18, 2021-Ohio-4228, ¶ 23. To the contrary, the trial court
expressly stated that it would disregard Kelly’s disputed statements if it determined that
they discussed prior bad acts.
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{¶ 71} Kelly’s third assignment of error is overruled.
VI. Ineffective Assistance of Counsel
{¶ 72} Kelly’s fifth assignment of error claims that his trial counsel rendered
ineffective assistance when he withdrew Kelly’s motion to suppress statements that he
made to the police. He indicates that those statements were subsequently used against
him at the bench trial.
{¶ 73} We review alleged instances of ineffective assistance of trial counsel under
the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), which was adopted by the Ohio Supreme Court in State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective-
assistance claim, a defendant must show that trial counsel rendered deficient
performance and that counsel’s deficient performance prejudiced him. Strickland at
paragraph two of the syllabus; Bradley at paragraph two of the syllabus. Failure to make
a showing of either deficient performance or prejudice defeats an ineffective-assistance
claim. Strickland at 697.
{¶ 74} To establish deficient performance, a defendant must show that his trial
counsel’s performance fell below an objective standard of reasonable representation. Id.
at 688. In evaluating counsel’s performance, a reviewing court “must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. “The adequacy of counsel’s performance must be viewed in
light of all of the circumstances surrounding the trial court proceedings.” State v.
Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29. To establish
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prejudice, a defendant must show that there is “a reasonable probability that, but for
counsel's errors, the proceeding’s result would have been different.” State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and
Bradley at paragraph two of the syllabus.
{¶ 75} The withdrawal of a motion to suppress does not constitute per se
ineffective assistance of counsel. State v. Caldwell, 2d Dist. Greene No. 2013-CA-76,
2015-Ohio-2551, ¶ 43. “Instead, the decision to withdraw a motion to suppress
‘constitutes ineffective assistance of counsel only when the record establishes that the
motion would have been successful.’ ” (Citations omitted.) Id. at ¶ 44.
{¶ 76} In this case, defense counsel sought to have Kelly’s statements to law
enforcement officers suppressed on the ground that they were made in violation of his
Miranda rights. Counsel withdrew Kelly’s motion to suppress prior to any hearing on the
motion.
{¶ 77} During the bench trial, Detective Spears indicated that, on July 31, 2018, he
went to Kelly’s home and spoke with Kelly’s girlfriend and daughter. While taking photos
with their consent, Spears found Kelly on his bed. Kelly gave consent to continue taking
photos. The two also discussed scheduling an interview at a later date, and Kelly agreed
to come. Spears testified that Kelly came to the police station on his own, either by
driving himself or getting a ride from someone; he “was not brought in by police in any
way.” Bench Tr. at 354. Spears described how Kelly would have gotten to the interview
room, which was approximately 10 feet by 7 feet and unlocked. Detective Spears
testified that the interview began at 1:49 p.m. and lasted approximately an hour. He
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indicated that Kelly was informed of his Miranda rights, waived them, and agreed to speak
with him. Bench Tr. at 361.
{¶ 78} A video-recording of Detective Spears’s interview with Kelly was admitted
at the bench trial as Court’s Exhibit II. At the beginning of the interview, the detective
told Kelly that he was not under arrest and that he could leave at any time; Spears pointed
out that the door to the interview room, which another detective (Detective Alley) had
closed, was unlocked and that Kelly could walk out. Kelly told Detective Spears that he
had previously been arrested and notified of his Miranda rights. The detective reviewed
Kelly’s Miranda rights with him, and Kelly expressed that he understood them and was
willing to talk to the officer. Kelly initialed the waiver of rights form next to each right and
signed at the bottom. On this record, there is no evidence that the motion to suppress
Kelly’s statements would have succeeded. Accordingly, Kelly has not demonstrated that
his trial counsel rendered ineffective assistance by withdrawing the motion to suppress.
{¶ 79} Kelly’s fifth assignment of error is overruled.
VII. Motion to Dismiss Counts 1-13
{¶ 80} In his seventh assignment of error, Kelly claims that the trial court erred in
failing to dismiss Counts 1 through 13 on statute of limitations grounds.
{¶ 81} The State offered three exhibits in response to the motion to dismiss,
including the August 7, 1993 police report and A.M.’s witness statement. The State also
asked the trial court to consider the testimony of several witnesses from the hearings on
the sexually violent predator specification: A.M., L.M., Tamara (their mother’s friend whom
they considered an aunt), and Chief Richardson of the Moraine Police Department;
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defense counsel had no objection. See Motion to Dismiss Tr., p. 272-273.
{¶ 82} The trial court concluded that the statute of limitations for the charged
offenses began when A.M. and L.M. each turned 18 years old, and that Kelly had been
indicted within the limitations periods. As to A.M., the trial court stated that her partial
disclosure in 1993 did not trigger the statute of limitations for rape because the corpus
delicti of rape was not discovered. The trial court stated that, in reaching its decision, it
considered the three exhibits and testimony of witnesses from the May 20, 2022 sexually
violent predator hearing; A.M. testified at the May 24, 2022 sexually violent predator
hearing, and it is unclear whether the trial court considered her testimony.
{¶ 83} We generally review a trial court’s decision on a motion to dismiss an
indictment de novo. State v. Hagen, 2d Dist. Champaign No. 2018-CA-2, 2018-Ohio-
4045, ¶ 21; State v. Milton, 2d Dist. Montgomery No. 27819, 2018-Ohio-4999, ¶ 11.
However, we must afford great deference to the trial court’s factual findings. See State
v. Hawkins, 2d Dist. Montgomery No. 27019, 2018-Ohio-867, ¶ 37. “When reviewing a
trial court’s decision on a motion to dismiss (or any other motion), we are limited to the
evidence that was before the trial court for that motion. Id. at ¶ 20.
{¶ 84} “Statutes of limitations provide the ultimate time limit within which the
government must prosecute a defendant[.]” State v. Jones, 148 Ohio St.3d 167, 2016-
Ohio-5105, 69 N.E.3d 688, ¶ 11. When the offenses against A.M. and L.M. occurred,
R.C. 2901.13(A)(1) provided a six-year statute of limitations for all felonies other than
aggravated murder or murder. Effective March 9, 1999, the statute of limitations for rape,
attempted rape, and gross sexual imposition was extended to 20 years after the offense
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was committed. R.C. 2901.13(A)(3); 1998 H.B. 49. The revised statute included
language that the revision applied not only to offenses occurring after the effective date,
but also to offenses committed prior to the effective date if the statute of limitations had
not yet expired. 1998 H.B. 49, Section 3. In 2015, the statute of limitations for rape was
extended to 25 years. R.C. 2901.13(A)(4); 2015 Sub.H.B. 6. This amendment also
applied to offenses “committed prior to the effective date of the amendments if
prosecution for that violation was not barred under this section as it existed on the day
prior to the effective date of the amendments.” R.C. 2901.13(L).
{¶ 85} “Generally, statutes of limitations begin to run when the crime is complete.”
State v. Swartz, 88 Ohio St.3d 131, 133, 723 N.E.2d 1084 (2000), citing Toussie v. United
States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); Milton at ¶ 14. However,
the limitations period is tolled “during any time when the corpus delicti remains
undiscovered.” Former R.C. 2901.13(F), now R.C. 2901.13(G). “The corpus delicti of
a crime is essentially the fact of the crime itself.” State v. Ashe, 2d Dist. Montgomery
No. 26528, 2016-Ohio-136, ¶ 9, quoting State v. Barker, 10th Dist. Franklin No. 03AP-43,
2003-Ohio-5346, ¶ 4. The “corpus delicti” has two elements: (1) the act itself, and (2)
the criminal agency of the act. State v. Hensley, 59 Ohio St.3d 136, 138, 571 N.E.2d
711 (1991); Milton, 2d Dist. Montgomery No. 27819, 2018-Ohio-4999, at ¶ 11. To
establish the corpus delicti, only some evidence that a crime was, in fact, committed is
required; there is no need for evidence showing that the accused committed the crime.
State v. Harris, 2d Dist. Montgomery No. 29780, 2024-Ohio-99, ¶ 38.
{¶ 86} In 1991, the Ohio Supreme Court addressed when the corpus delicti for
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child sexual assault is discovered, recognizing that the sexual abuse of children involved
special considerations. Hensley at 138-139. It explained:
* * * It is common knowledge in child sex abuse cases that the victims often
internalize the abuse, and in some instances blame themselves, or feel
somehow that they have done something wrong. Moreover, the mental
and emotional anguish that the victims suffer frequently inhibits their ability
to speak freely of the episodes of abuse. For these reasons, we reject the
court of appeals’ holding that because the children in the present case
understood the wrongness of appellee’s acts, the corpus delicti of the crime
was discovered by them. While the record in this case suggests that the
two children comprehended the inappropriateness of appellee’s actions, it
would pervert justice to impose on those whom the Criminal Code seeks to
protect the responsibility to know the exact criminal nature of such conduct.
In other words, even though a child of tender years may know that an act
committed against him or her is wrong or even criminal, we are unwilling to
impose the burden to contact the authorities on an already traumatized and
susceptible child.
Id.{¶ 87} The Court sought to “strike a proper balance between the need to place
some restriction on the time period within which a criminal case may be brought, and the
need to ensure that those who abuse children do not escape criminal responsibility for
their actions.” Id. at 139. It held that, “[f]or purposes of R.C. 2901.13(F), the corpus
-33-
delicti of crimes involving child abuse or neglect is discovered when a responsible adult,
as listed in R.C. 2151.421, has knowledge of both the act and the criminal nature of the
act.” Id. at syllabus. Disclosure to a parent was expressly excluded from triggering the
statute of limitations.
{¶ 88} We and other appellate districts subsequently held that the tolling in
Hensley terminated when the child reached the age of majority. E.g., State v.
Wooldridge, 2d Dist. Montgomery No. 17708, 1999 WL 812363 (Oct. 8, 1999).
{¶ 89} In August 2006, the Ohio legislature added a provision to R.C. 2901.13
addressing when the statute of limitations is triggered for offenses involving child abuse
or neglect. Former R.C. 2901.13(I); 2006 Am.Sub.S.B.17. The new provision stated
that the limitations period for criminal offenses involving child victims did not begin to run
until either (1) the victim reaches the age of majority, or (2) a public children services
agency or a municipal or county peace officer that is not the child’s parent or guardian
has been notified “that abuse or neglect is known, suspected, or believed to have
occurred.” (Emphasis added.) Former R.C. 2901.13(I), now R.C. 2901.13(J).
{¶ 90} Statutes are presumed to be prospective in operation unless expressly
made retrospective. R.C. 1.48; Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882
N.E.2d 899, ¶ 9. Unlike other amendments to R.C. 2901.13, the Ohio legislature did not
specify that former R.C. 2901.13(I), now R.C. 2901.13(J), was to apply retroactively. We
therefore presume that the August 2006 amendment applies only to cases in which, when
the amendment became effective, the statute of limitations had not yet begun to run. In
this case, both A.M. and L.M. turned 18 prior to the passage of former R.C. 2901.13(I)
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and, thus, the limitations period for bringing a prosecution had already started.
Accordingly, we conclude that current R.C. 2901.13(J) does not apply to this case, and
we will focus only on when the corpus delicti was discovered under Hensley for purposes
of R.C. 2901.13(G).
A. Statute of Limitations for L.M.
{¶ 91} Turning to the case before us, we begin with the charges involving L.M.,
who was born in October 1981. The indictment alleged that the offenses occurred
between January 1, 1987, and August 7, 1993, when L.M. was between five and eleven
years old. L.M. did not report the sexual abuse while she was a minor. The August 7,
1993 police report regarding A.M. (State’s Exhibit B) stated that the girls’ mother
questioned L.M. about Kelly’s conduct, but L.M. “repeatedly denied that any offenses had
been committed against her.” The report further stated that neither A.M. nor the girls’
mother believed L.M.’s denials and that Officer Chamber also “suspect[ed] that it is very
likely that suspect has violated L.M. in a similar fashion as [A.M.],” but there was no
evidence at that time that a crime against L.M. had been committed. Therefore, the
statute of limitations for her offenses began to run when she turned 18 in October 1999.
{¶ 92} At that point, the statute of limitations for both rape and gross sexual
imposition was 20 years and would have expired in October 2019. Because L.M. was a
minor when the amendments took effect, the increased limitations period applied. See
State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 13; State v. Jensen,
6th Dist. Lucas No. L-20-1042, 2021-Ohio-3505, ¶13-14. Before the new limitations
period expired, the statute of limitations for rape was extended to 25 years, thus permitting
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a rape charge to be brought until October 2024. As summarized in the chart below, Kelly
was indicted on rape and gross sexual imposition charges involving L.M. on April 11,
2019, within the limitation periods for both offenses. Accordingly, the trial court properly
denied the motion to dismiss Counts 7 to 13 of the indictment.
DATE EVENT
October 1981 L.M.’s birthdate
March 1999 Statute of limitations for rape/GSI extended to 20 years
October 1999 L.M. turned 18 years old; limitations period began
August 2015 Statute of limitations for rape extended to 25 years
April 2019 Kelly indicted on rape/GSI charges
October 2019 Statute of limitations for GSI expired
October 2024 Statute of limitations for rape expired
B. Statute of Limitations for A.M.
{¶ 93} A.M. was born in May 1978 and, as with the charges concerning L.M., the
charged offenses concerning A.M. were alleged to have occurred between January 1,
1987 and August 7, 1993, when she was between 8 and 15 years old. On August 7,
1993, A.M. reported to the Moraine police that Kelly had repeatedly touched her
“privates,” touched her buttocks, masturbated in front of her while touching her privates,
and licked her stomach. State’s Exhibit A. An officer prepared an offense case report
for sexual imposition. State’s Exhibit B. A.M. and her mother had another visit to the
police department on September 15, 1993, see id., but it appears that little to no
investigation followed. When A.M. made these reports, the statute of limitations for rape
and gross sexual imposition was six years.
{¶ 94} The parties appear to agree that the limitations period for gross sexual
imposition began to run with A.M.’s August 1993 disclosure to the Moraine police. The
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statute of limitations was extended to 20 years in March 1999, prior to the expiration of
those six years, and therefore the extension applied to A.M.’s allegations. However, the
statute of limitations expired in August 2013, prior to Kelly’s indictment. No gross sexual
imposition charges related to A.M. were included in the indictment.
{¶ 95} The parties dispute whether the limitations period for rape also began with
her 1993 disclosure to the Moraine police. The State asserts that because A.M., while a
minor, never disclosed that Kelly had perpetrated rape offenses, the statute of limitations
for rape did not begin to run until she reached age 18 in May 1996. If the State is correct,
the statute of limitations expired in May 2021, two years after Kelly was indicted. On the
other hand, if the limitations period began to run on or before August 1993, it expired
several years before the indictment.
{¶ 96} According to the State’s exhibits, A.M.’s August 7, 1993 disclosure of sexual
abuse to the Moraine police was limited to conduct that constituted gross sexual
imposition or sexual imposition. Neither A.M.’s witness statement nor the available
police reports included disclosures of sexual conduct, as defined in R.C. 2907.01(A),
which is required for rape. Chief Richardson testified that both Officer Chamber, who
took the August 7, 1993 report, and Detective Hicks, who did an initial follow-up, were
retired. Richardson contacted them, but neither recalled the case.
{¶ 97} A.M. provided additional information at the May 24, 2022 sexually violent
predator hearing. She testified that the abuse had occurred at her Moraine residence,
where she lived from first grade until 1991. She indicated that she told her parents and
Tamara about the abuse on the morning after taking a sex education class and realizing
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what Kelly had been doing to her. She testified: “I came running down the stairs, and I
just – the next morning – because he came in my room that night and jacked off, and I
came running down the stairs that morning and said, I have had enough. I’ve taken
enough. I can take no more. I’m not going to take no more. I know what he’s doing to
me. He is having sex with me. He is raping me. He is molesting me, and this isn’t fair.
And why is he doing this to me? I’m just a little kid.” SVP Tr. at 220-221. A.M. stated
that Kelly was kicked out of the house that day, and her mother took her to the police
department. Id. at 221-222.
{¶ 98} Tamara, who testified at the May 20, 2022 sexually violent predator hearing,
testified that she was present when A.M. came downstairs crying and made disclosures
about Kelly and that Kelly was evicted from the family’s residence that day. Id. at 31-34.
Tamara indicated that A.M. was 12 or 13 when she initially made the disclosures. Id. at
56. A.M.’s friend, J.C., testified that after Kelly touched her in early August 1993, she
talked to A.M. at the request of A.M.’s brother, E.M. Id. at 76. J.C. stated that she
discussed filing a police report with A.M. and “basically begged her not to let that go * * *
because it was so horrific.” Id. at 76-77.
{¶ 99} A.M. testified that she went to the police a total of four times. SVP Tr. at
235-237. She said that the first time was with her mother in 1991 and the second and
third times were with J.C. She testified, somewhat inconsistently, that the first three visits
to the police department occurred in the same year, id.at 237, although State’s Exhibit B
showed that she went to the Moraine police station twice in 1993. (The August 7, 1993
police report showed that A.M. no longer lived at the Moraine residence when that report
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was made.) The last time, A.M. was older and she went because she was “tired of [Kelly]
taunting [her] at the ballpark, and something needed to be done.” Id.
{¶ 100} A.M. testified that she wrote a report each time she went to the police
station. SVP Tr. at 238. She recalled that the 1991 report was given to Detective Mike
Hanks. Id. at 239-240. When asked about the interview on cross-examination, A.M.
stated that she did not tell the police everything that Kelly had been doing to her, because
Hanks “cut [her] off.” Id. at 243. She explained that the detective said to “let [her]
mother speak” and that her mother needed to complete the report. Id. at 244. A.M. also
acknowledged that she did not include all of Kelly’s alleged conduct in her August 7, 1993
written statement to the police. She explained that she was given only a limited time to
complete her written statement. Id. at 224-225.
{¶ 101} However, A.M. testified that she gave written statements to the Moraine
police that alleged rape. She stated:
Q All right. So you’re saying you wrote more than one statement for the
police?
A Oh, yeah.
Q And in any of them, did you mention any of the rapes that occurred,
fingers inside your body, or penises trying to go inside your body?
A Yes.
Q And you gave that to the police?
A Yes, I did.
Q Do you remember what year you did that?
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A No, sir, I don’t. I mean, I know – I mean, I have it written down at home.
I wasn’t –
Q Okay. Was it – when you wrote a statement and you mentioned the
rapes, was that one of the times that you were down there with [J.C.] or one
of the other times?
A I know I told [J.C.]. So I mentioned it that time, but I don’t recall exactly
when.
Id. at 238. A.M. stated that the Moraine police had collected three boxes of evidence
regarding the allegations against Kelly, including panties provided by A.M. and L.M. Id. at
235. That evidence and A.M.’s additional written statements were unaccounted for.
{¶ 102} On appeal, Kelly points to a portion of A.M.’s testimony during the
subsequent jury trial. At that time, A.M. similarly testified that she went to the Moraine
police department on four occasions and wrote statements each time. Jury Tr. at 235-
236. She indicated that the first report was made in 1991, when Kelly was kicked out of
the house. A.M. identified State’s Ex. 12 as her August 7, 1993 written statement and
said that she was given five minutes to write and “that’s all I could get written out.” Id. at
242-243. A.M. testified that she told the officers who took the reports about oral sex and
vaginal sex, but she did not write about the incidents because she thought the officer had
recorded the information in his notes. Id. at 243, 261-263. A.M.’s testimony indicated
that she disclosed rape to police officers by 1993, if not before. However, this trial
testimony was not before the trial court when it ruled on Kelly’s April 20, 2022 motion to
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dismiss Counts 1-13, and we cannot consider it in reviewing the trial court’s decision.3
{¶ 103} In denying the motion to dismiss the rape counts concerning A.M., the trial
court found that, until the 2018 investigation, A.M. had never disclosed to a mandated
reporter that Kelly had perpetrated numerous rape offenses against her during the
indicted timeframe. However, the trial court did not account for A.M.’s testimony at the
sexually violent predator specification hearing. Although the evidence was inconsistent
about when A.M. said what and who accompanied her, A.M. testified unequivocally that
she told Moraine police officers about the sexual conduct, likely around the time she told
J.C., if not before. A.M. was also clear that she had made multiple written reports and
that State’s Exhibits A and B did not reflect all of her disclosures about Kelly’s conduct.
{¶ 104} It was the State’s burden to demonstrate that it prosecuted the charged
offenses within the appropriate statute of limitations. Milton, 2d Dist. Montgomery No.
27819, 2018-Ohio-4999, at ¶ 22, citing State v. Climaco, Climaco, Seminatore, Lefkowitz
& Garofoli Co., L.P.A., 85 Ohio St.3d 582, 587, 709 N.E.2d 1192 (1999). Based on the
evidence before the trial court when Kelly’s motion was decided, the State did not meet
this burden as to the charges related to A.M. A.M.’s own testimony indicated that she
disclosed to the Moraine police that Kelly had raped her. Although she did not provide
an exact date, her testimony suggested that it occurred in 1993, when J.C. also went to
the Moraine police to disclose sexual abuse by Kelly. Based on A.M.’s testimony, the
statute of limitations for rape began to run with her August 1993 disclosure, if not before.
3
After the jury trial but before sentencing, Kelly filed a pro se motion to dismiss Counts
1-10 as outside the statute of limitations. The trial court dismissed the motion the next
day, but the reasons were stated at a scheduling conference, which was not transcribed.
Kelly’s assignment of error does not appear to address this motion.
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{¶ 105} As summarized in the table, because the statute of limitations for rape
began to run on or about August 1993, the statute of limitations expired several years
before the 16-count indictment was filed and served.
DATE EVENT
May 1978 A.M. birthdate
A.M. reports sex abuse to the Moraine police; statute of
August 1993
limitations period began for gross sexual imposition and rape
May 1996 A.M. turned 18 years old
March 1999 Statute of limitations for rape/GSI extended to 20 years
August 2013 Statute of limitations for GSI and rape expired
April 2019 Kelly indicted on rape charges
Accordingly, the trial court erred in denying Kelly’s motion to dismiss Counts 1 through 6.
{¶ 106} Kelly’s seventh assignment of error is overruled in part and sustained in
part.
VIII. Motion in Limine: Medical Information and Prior Statements
{¶ 107} In his sixth assignment of error, Kelly claims that the trial court erred in
denying his motion in limine seeking to use prior statements and medical information from
A.M. and L.M.’s medical records.
{¶ 108} A motion in limine is a pretrial request that certain purportedly inadmissible
evidence not be referred to or offered at trial. State v. Jones, 2d Dist. Montgomery No.
28977, 2021-Ohio-3050, ¶ 56, citing Black’s Law Dictionary (11th Ed. 2019). “Typically,
a party makes this motion when it believes that mere mention of the evidence during trial
would be highly prejudicial and could not be remedied by an instruction to disregard.”
Id., quoting Black’s Law Dictionary (11th Ed. 2019).
{¶ 109} The granting or denial of a motion in limine does not determine the
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admissibility of the questioned evidence. Id. at ¶ 57. Instead, “it is only a preliminary
interlocutory order precluding questions being asked in a certain area until the court can
determine from the total circumstances of the case whether the evidence would be
admissible.” (Citations omitted.) State v. Grubb, 28 Ohio St.3d 199, 201, 503 N.E.2d 142(1986). Hence, a decision on a motion in limine is a “tentative, interlocutory,
precautionary ruling by the trial court” reflecting its anticipatory treatment of the
evidentiary issue. Id. at 201-202; State v. Tyra, 2d Dist. Montgomery No. 27040, 2017-
Ohio-313, ¶ 28.
{¶ 110} Because the ruling on a motion in limine is not final, “[a]n appellate court
need not review the propriety of such an order unless the claimed error is preserved by a
timely objection when the issue is actually reached during the trial.” State v. Leslie, 14
Ohio App.3d 343, 344, 471 N.E.2d 503 (2d Dist.1984). “Failure to object to or proffer
evidence at trial based on the disposition made in a preliminary motion in limine
constitutes a waiver of any challenge.” Tyra at ¶ 28.
{¶ 111} On August 8, 2022, Kelly filed a motion in limine seeking an order allowing
the defense to cross-examine A.M. and L.M. on statements and medical information
contained in their medical records. Defense counsel highlighted portions of their medical
histories addressing their mental health histories and prescription medications, as well as
information regarding their parents’ substance abuse and sexual conduct. The court
denied the motion, stating that the information was “immaterial and irrelevant to the issues
at bar.”
{¶ 112} During L.M.’s cross-examination, L.M. testified that she had spoken about
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the sexual abuse with her counselor. Jury Tr. at 364. In a sidebar discussion, defense
counsel renewed his request to ask L.M. about some of the things she had mentioned to
her counselor. The prosecutor objected, arguing that it was irrelevant and that anything
related to other sexual activity would be barred by the rape shield law. Defense counsel
clarified that the motion in limine referred to L.M.’s father’s masturbating in front of her,
her parents’ substance abuse, and their swapping of partners. After asking when the
counseling occurred (2013), the trial court sustained its prior ruling.
{¶ 113} In general, the admission or exclusion of relevant evidence is within the
sound discretion of the trial court. State v. Jali, 2d Dist. Montgomery No. 28294, 2020-
Ohio-208, ¶ 39. While cross-examination is permitted on all relevant matters and on
matters affecting credibility, Evid.R. 611(B), the trial court “has discretion to limit the scope
of cross-examination taking into account the particular facts of a case.” State v. Kearns,
2016-Ohio-5941, 71 N.E.3d 681, ¶ 13 (10th Dist.); Evid.R. 611(A). The term “abuse of
discretion” indicates an attitude that is arbitrary, unconscionable, or unreasonable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 114} We find no abuse of discretion in the trial court’s exclusion of questions
about L.M.’s statements during counseling. There is no suggestion that L.M.’s mental
health history or her parents’ behavior affected L.M.’s understanding or memory of what
occurred with Kelly, or that those circumstances were relevant to L.M.’s credibility.
Based on the information before it, the trial court reasonably concluded that the
information from the counseling would be irrelevant. Defense counsel did not renew its
motion in limine during A.M.’s testimony, and any issue regarding the use of her medical
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records for cross-examination is both waived and moot.
{¶ 115} Kelly’s sixth assignment of error is overruled.
IX. Conclusion
{¶ 116} The trial court’s judgment will be affirmed as to Counts 5-10 (L.M.) and
Counts 14 and 16 (M.D.) and vacated as to Counts 1-4 (A.M.).
.............
TUCKER, J. and HUFFMAN, J., concur.