State v. Nguyen , 2013 Ohio 3170 ( 2013 )

[Cite as State v. Nguyen, 2013-Ohio-3170.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, : Case No. 12CA14
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
CHARLES H. NGUYEN, :
: RELEASED 07/11/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Elizabeth Gaba, Columbus, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecutor, and George J. Reitmeier, Athens
County Assistant Prosecutor, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Charles Nguyen appeals his convictions for rape, kidnapping, aggravated
burglary, and tampering with evidence. Nguyen contends the trial court violated his
constitutional rights when it permitted expert testimony from Dwayne Winston, Derek
Shoemaker, and Natalie Saracco, in violation of Evid.R. 702 and 705. However,
Saracco did not act as an expert on the matters Nguyen complains about. Therefore,
that testimony could not have violated Evid.R. 702 or 705. Moreover, Nguyen fails to
adequately explain how the testimony of Winston and Shoemaker violated the rules of
evidence and how those violations in turn resulted in a violation of his constitutional
rights.
{¶2} Nguyen also argues the court erred when it denied his pre-trial request for
a rape shield hearing. However, this request was untimely. And the court did ultimately
Athens App. No. 12CA14 2
conduct the hearing during trial, so we fail to see how Nguyen suffered any prejudice.
{¶3} In addition, Nguyen contends the court erred when it did not let him make
inquiries during trial about the victim’s sexual past. However, Nguyen did or could have
asked several of the questions he claims the court prohibited. Moreover, the court did
not err when it excluded evidence that the victim and Nguyen engaged in sexual activity
one time prior to the rape. The court could reasonably conclude the inflammatory or
prejudicial nature of this evidence outweighed its slight probative value and that the
State’s interests advanced by the rape shield law outweighed the probative value of the
evidence.
{¶4} Next, Nguyen contends the court violated Evid.R. 403(A) and 611(A) when
it admitted into evidence enlarged photos, which purportedly depict bruising of the
victim’s cervix. However, the trial court reasonably concluded the probative value of the
photos was not substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury. And the admission of the photos did not make the
presentation of evidence ineffective for ascertainment of the truth. Therefore, we find
no abuse of discretion occurred.
{¶5} Nguyen also claims the court erroneously let the jury see exhibits in bags
with “testimonial statements” written on the bags. Even if we presume error occurred, it
was harmless beyond a reasonable doubt. The legible statements Nguyen objects to
are duplicative of other evidence at trial. Moreover, the illegible statements Nguyen
also objects to could not have influenced the jury because they had no discernible
meaning.
{¶6} In addition, Nguyen contends the court violated his rights under the
Athens App. No. 12CA14 3
Confrontation Clause when it prohibited him from asking the victim certain questions to
determine whether she had been coached. However, Nguyen did elicit testimony on
this point – the victim denied discussing her testimony with anyone. Because a
defendant has no right to ask a witness repetitive questions until he gets an answer that
he likes, the court’s restrictions were proper and did not violate his right of confrontation.
{¶7} Next, Nguyen argues the court also violated his Confrontation Clause
rights when it refused to let him cross-examine a deputy about a police report used to
refresh his memory. Nguyen claims Evid.R. 612 permitted his questions but again fails
to explain how a violation of the rule constitutes a Sixth Amendment violation.
Moreover, he vaguely claims the report contradicted the deputy’s testimony without
explaining what the purported contradictions were or why they are significant. It is not
this court’s function to construct an appellant’s arguments for him.
{¶8} In addition, Nguyen argues the court erred when it permitted the
prosecutor, under the guise of refreshing the victim’s memory, to have the victim read
four exhibits to the jury. Even if the court erred in this regard, and even if that error was
of constitutional magnitude, it was harmless beyond a reasonable doubt. Another
witness also read two of the exhibits to the jury without objection. And the information in
the other two exhibits was duplicative of other evidence adduced at trial.
{¶9} Nguyen contends his convictions are against the manifest weight of the
evidence and insufficient evidence supports them. He implicitly concedes the victim’s
testimony alone, if believed, supports the rape, kidnapping, and aggravated burglary
convictions. His explicit argument simply attacks her credibility and that of other State’s
witnesses. But we leave credibility determinations to the trier of fact. For the tampering
Athens App. No. 12CA14 4
with evidence conviction, Nguyen again attacks the victim’s credibility and also argues
that no evidence supports his conviction. However, the State presented evidence for
each element of the offense, so we cannot say the jury clearly lost its way and created a
manifest miscarriage of justice when it found Nguyen guilty. His convictions are not
against the manifest weight of the evidence and are supported by sufficient evidence.
{¶10} Nguyen also complains the court committed reversible error when, prior
to the trial date, it sua sponte excused several prospective jurors for various reasons,
like vacations and medical issues. However, this is not grounds for reversal – the
discharge of a prospective juror on grounds of personal excuse is solely a matter
between the court and juror. Absent a systematic abuse, the parties cannot interfere
with the court's discretion. Moreover, the court’s actions did not deprive Nguyen of the
essential benefits of voir dire.
{¶11} Next, Nguyen contends the court erred when it removed a prospective
juror for cause – financial hardship – as she expressed a willingness to serve on the jury
and said she would “get by somehow.” However, the court was free to conclude she
had a financial hardship because she lived paycheck to paycheck, would miss two-
thirds of her work week for each week of trial, and suggested that to “get by” she might
have to take out a loan. Therefore, the court’s decision to remove her for cause was
reasonable and did not constitute an abuse of discretion.
{¶12} In addition, Nguyen argues that the court erred when it failed to merge
certain convictions. We agree that rape and kidnapping are offenses of similar import;
but we also agree with the court’s conclusion that Nguyen had a separate animus for
each crime. In addition, we agree that kidnapping and aggravated burglary are offenses
Athens App. No. 12CA14 5
of similar import and that rape and aggravated burglary are also offenses of similar
import. We remand so the trial court can make an initial determination of whether these
pairs of offenses were committed separately or with a separate animus and if
necessary, resentence Nguyen accordingly.
{¶13} Finally, Nguyen complains that the court erred when it imposed maximum
and consecutive sentences. We decline to address his arguments at this time about the
rape, kidnapping, and aggravated burglary offenses because they may be rendered
moot on remand. For tampering with evidence, the court imposed the maximum
sentence but ordered Nguyen to serve it concurrently to the other sentences. This
sentence is neither clearly and convincingly contrary to law, nor did the court
demonstrate an unreasonable, arbitrary, or unconscionable attitude when it imposed the
sentence. Accordingly, we reject Nguyen’s argument.
I. Facts
{¶14} A grand jury indicted Nguyen for rape, kidnapping, aggravated burglary,
and tampering with evidence. He pleaded not guilty, and a jury trial ensued.
{¶15} The State presented the following version of events. Nguyen and the
victim, Hong “Jenny” Nguyen (who is not related to the appellant), met online on
VietSingle.com. Nguyen lived in New York City, and Jenny lives in Athens, Ohio. Near
the end of March 2009, Jenny went on vacation to New York City and met Nguyen in
person. On the second day of the trip, Jenny told Nguyen she just wanted to be friends.
But they continued to communicate, and Nguyen visited her in Ohio from May 9, 2009,
to May 17, 2009. During the visit, Jenny realized they could not be friends because
Nguyen still wanted a romantic relationship. When she drove him to the airport on May
Athens App. No. 12CA14 6
17th, Jenny ended the friendship. She tried to give Nguyen a goodbye hug at the
airport, but he turned and walked away.
{¶16} On May 19, 2009, Nguyen unexpectedly came to Jenny’s apartment
where she was, along with her three-year-old nephew, Kayden. Nguyen told her that he
wanted to apologize for his behavior at the airport and stepped into the apartment.
Jenny went to her bedroom to change because she felt exposed in her pajamas.
Nguyen followed, so she sat on the edge of her bed and used her arms to cover herself.
Nguyen sat and told her that he wanted them to be together. When she rejected him,
he took white rope from his pocket. She asked what he was doing, and he told her not
to scream. Jenny begged him not to “do this,” but he took off her shorts and ripped her
shirt off. He spread her legs and examined her to see if she had “had sex with
anybody.”
{¶17} Later, Nguyen told Jenny to turn around so he could tie her hands with the
rope. She kept saying “please don’t,” and Nguyen told her not to scream or he would
kill Kayden. After he tied her hands up, he told her to lie on the bed so he could tie her
ankles together. When she begged him to not kill her, he replied he would not because
he loved her. Jenny tried to fight, but he said, “I am not kidding around, I am going to
kill Kayden.” When Jenny continued to fight, Nguyen said, “I swear I have scissors in
my pockets I will slit his throat.” She lay on the bed, and he tied her ankles together.
Jenny tried to calm Nguyen down while she worked one of her wrists free. Nguyen
made her promise to give their relationship another chance and said if she broke her
promise, her family would “die a horrible death.” Then he used scissors and cut the
ropes off her ankles and other wrist. But when Jenny sat up, Nguyen took off his pants
Athens App. No. 12CA14 7
and said “I am just gonna do this.” Jenny begged him to stop, but he threatened
Kayden again. Nguyen let Jenny check on Kayden in another room, but when she
returned to the bedroom, he told her to “lay down, we are gonna do this.” Then he
inserted his penis into her vagina. A few minutes later, he ejaculated on her stomach,
and she used a scarf to wipe off the ejaculate.
{¶18} Nguyen told Jenny he was taking her to New York. He made her pack
and get dressed, and he used medical tape to bind her arms together. He also tried to
blindfold her with a tie and tape her mouth shut but took the items off when Jenny
protested. He took her to the living room and asked if she was going to call the police.
After Jenny promised she would not, he used the scissors to cut her free. He let Jenny
get in her car with Kayden around 9:45 a.m. so she could go to work. Jenny drove to
work, where she told her sister’s boyfriend what happened and called 911. Then she
went to the police station. Before Jenny left the house, she saw Nguyen pick up pieces
of the rope and stuff them in his pockets. She thought he also put the scissors and
medical tape in his pockets. Law enforcement did not find the scissors or tape at the
crime scene and only found what Jenny identified as a portion of the rope Nguyen used.
The State presented evidence that Nguyen’s semen was in Jenny’s vagina after the
incident, and his cell phone was in the Athens area around the time of the rape.
{¶19} Nguyen did not testify or call any witnesses on his behalf.
{¶20} A jury found Nguyen guilty on all counts. The court sentenced him to 10
years each for rape, kidnapping, and aggravated burglary and five years for tampering
with evidence. The court ordered that the sentences for rape, kidnapping, and
aggravated burglary run consecutive to each other and the sentence for tampering with
Athens App. No. 12CA14 8
evidence run concurrent to the other sentences, for an aggregate 30-year sentence.
Nguyen filed an appeal, which we dismissed for lack of a final order because the trial
court had not ruled on a motion for a new trial. State v. Nguyen, 4th Dist. No. 10CA43,
2012-Ohio-2488. After the court denied the motion, Nguyen filed this appeal.
II. Assignments of Error
{¶21} Nguyen assigns nine errors for our review:1
1. “THE TRIAL COURT ERRED TO THE PREJUDICE OF DR.
NGUYEN AND INFRINGED UPON HIS RIGHTS UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION (CONFRONTATION AND DUE
PROCESS), WHEN IT PERMITTED EXPERT TESTIMONY
CONTRARY TO RULES 702 AND 705 OF THE OHIO RULES OF
EVIDENCE [Day 3, Vol. 2, pp. 279-344; Day 4, Vol. 1, pp. 6-167;
Day 5, Vol. 1, pp. 38-40].”
2. “THE TRIAL COURT ERRED TO THE PREJUDICE OF DR.
NGUYEN WHEN IT FAILED TO A HOLD A RAPE SHIELD
HEARING BEFORE TRIAL AND DURING TRIAL, AT DR.
NGUYEN’S REQUEST, IN VIOLATION OF R.C. 2907.02 AND THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION [Final Pre-Trial, pp. 36-47: 8/2/10; Day
2, Vol. 1, pp. 61-68, 70].”2
3. “THE TRIAL COURT ERRED WHEN IT PERMITTED ENLARGED
PHOTOGRAPHS OF THE ALLEGED RAPE VICTIM’S CERVIX
AND EXHIBIT BAGS LABELED WITH TESTIMONIAL
STATEMENTS TO BE USED IN JURY DELIBERATIONS IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, ALONG WITH
RULES 403(B) AND 611(A) OF THE OHIO RULES OF EVIDENCE
[Day 5, Vol. 2, pp. 277-278; Day 9, Vol. 1, pp. 105-121].”
4. “THE TRIAL COURT ERRED WHEN IT DID NOT PERMIT
DEFENSE COUNSEL TO FULLY CROSS-EXAMINE THE
1
We take these assignments of error from his brief’s table of contents.
2
Nguyen states this assignment of error differently in the Law and Argument portion of his brief. There
he claims: “THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD A RAPE SHIELD HEARING
BEFORE TRIAL AND DURING TRIAL, AT DR. NGUYEN’S REQUEST, AND BY RESTRICTING
CROSS-EXAMINATION IN VIOLATION OF R.C. 2907.02 AND THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.” (Appellant’s Br. 8).
Athens App. No. 12CA14 9
ALLEGED RAPE VICTIM CONCERNING CONVERSATIONS SHE
HAD ABOUT HER TESTIMONY DURING A RECESS AND
PROHIBITED CROSS-EXAMINATION OF AN OFFICER ABOUT A
POLICE REPORT USED DURING TESTIMONY AND TO
PREPARE UNDER OHIO EVIDENCE RULE 612, IN VIOLATION
OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION. [Day 7, Vol. 1, p. 165-166; Day 4, Vol. 1, p. 246,
Vol. 2, p. 302-303].”
5. “DR. NYUGEN’S CONVICTIONS AND SENTENCES ON THE
RAPE, KIDNAPPING AND AGGRAVATED BURGLARY
VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT TO THE U.S. CONSTITUTION [Sentencing
Transcript. 8/18/10].”
6. “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING
MAXIMUM, CONSECUTIVE SENTENCES WITHOUT ADEQUATE
JUSTIFICATION [Sentencing Transcript. 8/18/10].”
7. “THE CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT IN
VIOLATION OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION [Day 6, Vol. 1, pp. 27 – Day 7,
p. 182].”
8. “THE TRIAL COURT ERRED IN VIOLATION OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION (DUE PROCESS) AND RULE 612 OF THE OHIO
RULES OF EVIDENCE WHEN IT PERMITTED THE
PROSECUTOR, UNDER THE GUISE OF REFRESHING A
WITNESS’S MEMORY, TO PUT BEFORE THE JURY CONTENTS
OF AN INADMISSIBLE DOCUMENT [Day 6, Vol. 1, p. 119-131].”
9. “THE TRIAL COURT ERRED WHEN IT EXCUSED JURORS, EX
PARTE, WITHOUT THE PRESENCE OF DEFENSE COUNSEL
OR DR. NGUYEN AND ONE FOR CAUSE, VIOLATING
DEFENDANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, R.C.
2945.27, ALONG WITH RULES 24 & 43 OF THE OHIO RULES OF
CRIMINAL PROCEDURE [Final Pre-Trial Transcript, p. 26 seq.-
8/2/10].”
III. Expert Testimony and the Sixth Amendment
{¶22} In his first assigned error, Nguyen complains the trial court violated his
Athens App. No. 12CA14 10
rights under the Sixth and Fourteenth Amendments to the United States Constitution
when it permitted expert testimony from three people contrary to Evid.R. 702 and 705.
In a footnote, he states that each constitutional claim “invokes both the federal
constitutional provision and its Ohio constitutional counterpart.” (Appellant’s Br. 5).
However, because he does not separately argue the state constitutional issue, we reject
it summarily. See App.R. 16(A); App.R. 12(A)(2); and paragraph 31 below.
{¶23} Evid.R. 702 provides:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge
or experience possessed by lay persons or dispels a misconception
common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or
other specialized information. To the extent that the testimony reports the
result of a procedure, test, or experiment, the testimony is reliable only if
all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is
objectively verifiable or is validly derived from widely accepted knowledge,
facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements
the theory;
(3) The particular procedure, test, or experiment was conducted in a way
that will yield an accurate result.
{¶24} Evid.R. 705 states: “The expert may testify in terms of opinion or
inference and give the expert’s reasons therefor after disclosure of the underlying facts
or data. The disclosure may be in response to a hypothetical question or otherwise.”
{¶25} Under the rules of evidence, “[t]he determination of the admissibility of
Athens App. No. 12CA14 11
expert testimony is within the discretion of the trial court. Evid.R. 104(A). Such
decisions will not be disturbed absent abuse of discretion.” Valentine v. Conrad, 110
Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. The phrase “abuse of discretion”
implies the court’s attitude is unreasonable, unconscionable, or arbitrary. State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶26} However, the Sixth Amendment guarantees a criminal defendant the right
“to be confronted with the witnesses against him.” Implicit in this guarantee is the right
to cross-examine adverse witnesses. State v. Keck, 4th Dist. No. 09CA50, 2011-Ohio-
1643, ¶ 16. This guarantee applies to the states through the Fourteenth Amendment.
State v. Keairns, 9 Ohio St.3d 228, 229, 460 N.E.2d 245 (1984), citing Pointer v. Texas,
380 U.S. 400, 85 S.Ct. 1065, 13 L.E.2d 923 (1965). Section 10, Article I, Ohio
Constitution also guarantees the defendant’s right to “meet the witnesses face to face.”
It provides no greater right of confrontation than the Sixth Amendment. State v. Self, 56
Ohio St.3d 73, 79, 564 N.E.2d 446 (1990). “ ‘[Q]uestions of the scope and effect of
constitutional protections, such as the Sixth Amendment, are matters of law and
therefore reviewed de novo.’ ” State v. Dorsey, 5th Dist. No. 11CA39, 2012-Ohio-611, ¶
19, quoting State v. Dunivant, 5th Dist. No. 2003CA00175, 2005-Ohio-1497, ¶ 7. Thus,
our review is not limited by the normal deferential standard that applies to simple claims
of violations of evidentiary rules.
A. Testimony of Dwayne Winston
{¶27} Nguyen claims the trial court improperly permitted testimony from Dwayne
Winston, a laboratory technical director. However, Nguyen did not object to the
testimony and has forfeited all but plain error. See Crim.R. 52(B). “A silent defendant
Athens App. No. 12CA14 12
has the burden to satisfy the plain-error rule[,] and a reviewing court may consult the
whole record when considering the effect of any error on substantial rights.” State v.
Davis, 4th Dist. No. 06CA21, 2007-Ohio-3944, ¶ 22, citing United States v. Vonn, 535
U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). For us to find plain error: 1.) there
must be an error, i.e., “a deviation from a legal rule”; 2.) the error must be plain, i.e., “an
‘obvious’ defect in the trial proceedings”; and 3.) the error must have affected
“substantial rights,” i.e., it must have affected the outcome of the proceedings. State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Plain error not only applies to
purported evidentiary violations but also to purported constitutional errors. See State v.
Butts, 4th Dist. 11CA22, 2012-Ohio-571, ¶ 22 (applying plain error review to an alleged
constitutional violation not objected to at the trial level).
{¶28} “Even if a forfeited error satisfies these three prongs, however, Crim.R.
52(B) does not demand that an appellate court correct it.” Barnes at 27. The Supreme
Court of Ohio has “acknowledged the discretionary aspect of Crim.R. 52(B) by
admonishing courts to notice plain error ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’ ” Id., quoting State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶29} Nguyen complains that during direct and part of cross-examination,
Winston testified as if he personally received and tested swabs and a blood sample
taken in this case for DNA. Later, Winston explained that under his company’s protocol,
a lab assistant would have received the items, and a “technologist” would have tested
the items to develop raw DNA data for analysis. Winston did not conduct the tests
himself or observe when the technologist conducted them. He just interpreted the raw
Athens App. No. 12CA14 13
data.
{¶30} Nguyen characterizes Winston’s initial testimony as “deceptive,” but the
State claims Nguyen simply misinterprets it. Nguyen makes no effort to explain how
Winston’s testimony violated Evid.R. 702 and 705 or why those violations also are a
violation of the federal or state constitutions; instead, he focuses on the “deceptive”
nature of Winston’s testimony. We do likewise. However, any “deception” was subject
to clarification or exploitation on cross-examination.
{¶31} In addition, Nguyen complains the “deception” kept him “from objecting to
Winston’s testimony on hearsay, foundation, or confrontation clause grounds.”
(Appellant’s Br. 7). However, once defense counsel became aware of the “deception,”
counsel could have objected to Winston’s prior testimony and asked the court to strike it
from the record. Counsel did not. Moreover, Nguyen’s argument about his inability to
object goes to the standard of appellate review, i.e., plain error, and does not explain
how Winston’s testimony violated evidentiary rules or constitutional provisions. “ ‘If an
argument exists that can support [an] assignment of error, it is not this court’s duty to
root it out. * * * It is not the function of this court to construct a foundation for [an
appellant’s] claims[.]’ ” In re A.Z., 4th Dist. No. 11CA3, 2011-Ohio-6739, ¶ 18, quoting
Coleman v. Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, ¶ 13. “In other words, ‘[i]t is not
* * * our duty to create an argument where none is made.’ ” In re A.Z. at ¶ 18, quoting
Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. No. 25281, 2011-Ohio-435, ¶ 7.
{¶32} Nguyen also argues that the “testing standards could not be tested via
cross-examination due to [Winston’s] deception.” (Appellant’s Br. 7). We find this
statement confusing. Counsel could not cross-examine Winston about how the tests
Athens App. No. 12CA14 14
were performed in this case because Winston lacked personal knowledge of that
matter, not because Winston was “deceptive.”
{¶33} In his reply brief, Nguyen suggests for the first time that the State, through
Winston, improperly admitted testimonial statements of the technician who created the
raw data that Winston analyzed. And Nguyen complains that because the
“technologist” did not testify, he could not question that person’s proficiency, etc., and
therefore, Winston could not testify about his interpretation of the technologist’s raw
data. Nguyen also argues that his “entire defense may have been different” if he knew
before trial that the State did not plan to call the technician as a witness. (Reply Br. 9).
{¶34} However, “[a] reply brief gives an appellant the opportunity to respond ‘to
the brief of the appellee.’ App.R. 16(C). The appellant cannot raise an issue for the first
time in a reply brief, and thus effectively deny the appellee an opportunity to respond to
it.” Nemeth v. Nemeth, 11th Dist. No. 2007-G-2791, 2008-Ohio-3263, ¶ 22. Therefore,
we decline to address these arguments. See In re Haubiel, 4th Dist. No. 01CA2631,
2002-Ohio-4095, ¶ 25.
{¶35} Because Nguyen failed to demonstrate that any error, plain or otherwise
occurred, we overrule the first assignment of error as it concerns Winston’s testimony.
B. Testimony of Derek Shoemaker
{¶36} Nguyen complains about the testimony of Derek Shoemaker, a reserve
deputy for the Athens County Sheriff’s Office, who testified about data recovery from
cell phones. He testified that five videos were recovered from Nguyen’s cell phone. He
also testified that the videos were taken around May 14, 2009, and depicted a lady (who
Jenny later identified as herself), from a slight distance away, who appeared to be
Athens App. No. 12CA14 15
working. The prosecutor played the videos for the jury, and Shoemaker identified them
as videos he had seen. During cross-examination, Shoemaker admitted he never saw
the videos on the phone. Though somewhat unclear, Shoemaker’s testimony suggests
he believed a company called Now You See It Investigations recovered the videos from
the phone for the defense. He saw the videos on a CD. Nguyen never objected to
Shoemaker’s testimony about the videos and has forfeited all but plain error review.
See Section III.A., supra (explaining this standard).
{¶37} Nguyen argues that “[n]o authority need be cited for the proposition that
the State would not have been permitted to show the jury the video[s] had Shoemaker
testified he had not reviewed or retrieved the videos on the phone, contrary to his direct
testimony.” (Appellant’s Br. 7). This assertion is contrary to App.R. 16(A)(7). Nguyen
makes no effort to explain how Shoemaker’s testimony violated Evid.R. 702 and 705 or
why those violations constitute violations of his constitutional rights that warrant a
finding of plain error. Again, it is not this court’s duty to construct an appellant’s
argument for him. In re A.Z., 4th Dist. No. 11CA3, 2011-Ohio-6739, at ¶ 18. Therefore,
we reject Nguyen’s argument and overrule the first assignment of error as it relates to
Shoemaker.
C. Testimony of Natalie Saracco
{¶38} Nguyen also argues about the testimony of Natalie Saracco, a forensic
scientist. She swabbed a rope and latex gloves found at the crime scene, and those
swabs were later tested for DNA by other people. Nguyen complains Saracco failed to
prepare an expert report, so he could not adequately cross-examine her. Nguyen
suggests that if he knew Saracco would be testifying without preparing a report, he
Athens App. No. 12CA14 16
would have made additional trial preparations to challenge her testimony. Although
Nguyen objected to Saracco’s testimony under Evid.R. 702 and the Confrontation
Clause, he did not object under Evid.R. 705. Therefore, we apply plain error analysis to
the Evid.R. 705 claim. See Section III.A., supra.
{¶39} “Witnesses presented at trial can be categorized as either fact witnesses
or expert witnesses.” D.M. v. J.M., 189 Ohio App.3d 723, 2010-Ohio-3852, 940 N.E.2d
591, ¶ 35 (9th Dist.). A fact witness testifies about “matters relevant to the case and
within [her] personal knowledge.” State v. Reinhardt, 9th Dist. No. 08CA0012-M, 2009-
Ohio-1297, ¶ 9, citing Evid.R. 402 and Evid.R. 602. “A witness testifies as an expert
when the subject matter of the testimony is related to matters that are beyond the
knowledge or experience of laypersons; the witness possesses ‘specialized knowledge,
skill, experience, training or education’ that relate[s] to the subject matter; and the
witness testifies based on ‘reliable scientific, technical, or other specialized information.’
” Reinhardt at ¶ 9, quoting Evid.R. 702. “ ‘Persons who may qualify as an expert in
certain circumstances may be called at other times as fact witnesses to testify as to
matters within their knowledge.’ ” D.M. at ¶ 35, quoting Reinhardt at ¶ 9.
{¶40} As the State suggests, Saracco was merely a fact witness in the context of
the swabs of the gloves and rope. Saracco testified to matters within her personal
knowledge, i.e., she swabbed the items and temporarily stored the swabs. Because
she was not an expert witness when she testified about this, her testimony could not
violate Evid.R. 702 or 705. Consequently, no constitutional violation occurred as
Nguyen contends. Moreover, the trial court let defense counsel question Saracco about
the swabs outside the jury’s presence and gave counsel a brief recess to review
Athens App. No. 12CA14 17
Saracco's notes. Thus, it seems counsel had ample opportunity to prepare to cross-
examine Saracco on what appears to be a very simple matter. Therefore, we reject
Nguyen’s argument and overrule the first assignment of error.
IV. Rape Shield Hearing and Evidence of the Victim’s Past Sexual Activity
{¶41} In his second assigned error, Nguyen complains the court erred when it
refused to hold a rape shield hearing when he requested it and restricted his ability to
cross-examine witnesses about the victim’s sexual history in violation of R.C. 2907.02
and his Sixth Amendment rights. The jury found Nguyen guilty of rape under R.C.
2907.02. Subsection D of that statute contains Ohio’s rape shield law, which states:
Evidence of specific instances of the victim’s sexual activity, opinion
evidence of the victim’s sexual activity, and reputation evidence of the
victim’s sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, or the
victim’s past sexual activity with the offender, and only to the extent that
the court finds that the evidence is material to a fact at issue in the case
and that its inflammatory or prejudicial nature does not outweigh its
probative value.
Evidence of specific instances of the defendant’s sexual activity, opinion
evidence of the defendant’s sexual activity, and reputation evidence of the
defendant’s sexual activity shall not be admitted under this section unless
it involves evidence of the origin of semen, pregnancy, or disease, the
defendant’s past sexual activity with the victim, or is admissible against
the defendant under section 2945.59 of the Revised Code, and only to the
extent that the court finds that the evidence is material to a fact at issue in
the case and that its inflammatory or prejudicial nature does not outweigh
its probative value. R.C. 2907.02(D).
{¶42} Under R.C. 2907.02(E):
Prior to taking testimony or receiving evidence of any sexual activity of the
victim or the defendant in a proceeding under this section, the court shall
resolve the admissibility of the proposed evidence in a hearing in
chambers, which shall be held at or before preliminary hearing and not
less than three days before trial, or for good cause shown during the trial.
{¶43} The day before trial, defense counsel orally told the court he wanted a
Athens App. No. 12CA14 18
R.C. 2907.02(E) hearing. He waited until the day of trial to file a written request.
Initially, Nguyen complains the court erred when it rejected the request as untimely. But
R.C. 2907.02(E) plainly states the hearing shall occur “not less than three days before
trial * * *.” After that, the court need only conduct a hearing “for good cause shown
during the trial.” (Emphasis added). R.C. 2907.02(E). Moreover, we fail to see how
Nguyen was prejudiced by the court’s decision because as he acknowledges, the court
ultimately conducted a rape shield hearing during trial at the State’s request.
{¶44} Next, Nguyen complains the court violated R.C. 2907.02(D) and his Sixth
Amendment rights when it refused to let him question witnesses about aspects of the
victim’s sexual history. We review the court’s R.C. 2907.02(D) rulings for an abuse of
discretion. See State v. Jordan, 7th Dist. No. 06 HA 586, 2007-Ohio-3333, ¶ 48. But as
already noted, we ordinarily use a de novo standard to review alleged violations of a
criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment.
State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, ¶ 78.
{¶45} First, Nguyen complains that during trial the court did not permit him to
discuss the fact that he and the victim were “in bed” together “just days before her
claims of rape, which was not in dispute.” (Appellant’s Br. 8-9). We find this argument
confusing. Nguyen implies that the victim admitted to consensual sexual activity with
him in the days before the rape, but this is not true. At the rape shield hearing, Jenny
denied any sexual activity with Nguyen except an incident in New York, which we
discuss in more detail below. Jenny did admit that during Nguyen’s visit to Athens, the
pair watched two movies together on her bed. This is clearly not “sexual activity” and is
therefore not even subject to R.C. 2907.02(D). See R.C. 2907.01. Moreover, on cross-
Athens App. No. 12CA14 19
examination Jenny did testify about the movie watching. So contrary to Nguyen’s claim,
the court did permit defense counsel to question the victim about the fact that she and
Nguyen were “in bed” together a few days before the rape.
{¶46} Nguyen also complains that the origin of semen was at issue and argues
that the court wrongly prevented him from inquiring about semen deposits in the victim’s
bedroom. Nguyen claims that his semen was found “in areas of [the victim’s] mattress
that the State did not even attempt to connect to the alleged rape.” (Appellant’s Br. 10).
He suggests, but does not specifically argue, that the semen was located on areas of
the mattress that did not fit the victim’s story about how the rape occurred. He argues
that the semen “could have been deposited” during consensual sexual encounters
between him and the victim in the days leading up to the rape. (Appellant’s Br. 11).
{¶47} Nguyen fails to cite where in this extensive record there is evidence that
his semen was actually found on the mattress. See App.R. 16(A)(7). If this evidence
exists, we fail to see how the “origin” of it would be at issue because Nguyen admits the
semen was his. Nguyen’s actual argument appears to be that the semen relates to the
issue of consent, i.e., if he had consensual sex with Jenny days before the alleged rape,
it is more likely the “rape” was also consensual.
{¶48} However, the trial court did not prohibit Nguyen from asking the victim
about semen deposits on the mattress. At the end of the rape shield hearing, the court
told defense counsel he could ask the victim about whether she had sex with Nguyen in
Ohio apart from the rape. Thus, if Nguyen’s semen was on the mattress, defense
counsel could have questioned the victim about whether she and Nguyen engaged in
other sexual activity that could account for it.
Athens App. No. 12CA14 20
{¶49} Nguyen complains that the court did not permit him to cross-examine the
victim about sexual activity that occurred between them in New York. At the rape shield
hearing, Jenny testified that on the morning of the first full day of her New York trip:
I was awakened by [Nguyen’s] hands touching me, touching my, touching
me down there. Touching my vagina. And pushed it away and he just
said please can I touch it. And kept on saying can I touch it, so I pushed it
away again, and then the third time, um I did let him touch it. And he
stopped. Then after that he took my hand and he put it on his penis. And
I pulled my hand away, a couple of times. And then on the, and then on
the third time he went ahead and put it back, my hands on his penis again
and that’s when I masturbated him and well stroke his penis.
{¶50} As the trial court noted, the New York incident occurred around two
months before the rape. In his reply brief, Nguyen argues that the New York incident is
not that remote in time from the rape because he and the victim had a long distance
relationship and little opportunity for physical contact. This argument ignores the fact
that there is no evidence of sexual activity during the rest of the New York trip or during
Nguyen’s 9-day vacation with the victim right before the rape. Moreover, as the trial
court stated, the New York incident is a “different type of thing” from the rape. During
the New York incident, Nguyen and the victim touched each other’s genitals with their
hands. The victim testified, and the evidence supports the conclusion that, the Ohio
incident involved vaginal intercourse and bondage and resulted in physical injuries to
Jenny. Thus, evidence supports a conclusion that the inflammatory or prejudicial nature
of the evidence of the New York incident outweighed its very slight probative value. The
court properly found the evidence inadmissible under R.C. 2907.02.
{¶51} As to Nguyen’s Sixth Amendment argument, it is apparent that at the rape
shield hearing he failed to raise any constitutional arguments when the court ruled on
the admissibility of evidence of the New York incident. Thus, we apply plain error
Athens App. No. 12CA14 21
analysis to this issue. See Section III.A., supra (explaining and applying this standard).
{¶52} “The rights to confront witnesses and to defend are not absolute and may
bow to accommodate other legitimate interests in the criminal process.” State v. Boggs,
63 Ohio St.3d 418, 422, 588 N.E.2d 813 (1992). In determining whether the rape shield
law has been unconstitutionally applied, we must “balance the state interest which the
statute is designed to protect against the probative value of the excluded evidence.”
State v. Gardner, 59 Ohio St.2d 14, 17, 391 N.E.2d 337 (1979). Ohio’s rape shield law
advances several legitimate interests:
First, by guarding the complainant’s sexual privacy and protecting her
from undue harassment, the law discourages the tendency in rape cases
to try the victim rather than the defendant. In line with this, the law may
encourage the reporting of rape, thus aiding crime prevention. Finally, by
excluding evidence that is unduly inflammatory and prejudicial, while being
only marginally probative, the statute is intended to aid in the truth-finding
process. Id. at 17-18.
{¶53} As we already explained, evidence of the New York incident had little
probative value. Thus, the court could conclude the State’s interests outweighed the
probative value of the evidence. Therefore, we find no constitutional error occurred.
{¶54} Next, Nguyen complains he could not “cross-examine State witnesses
concerning [Jenny’s] prior sexual activities, or compel his own witness testimony.”
(Appellant’s Br. 9). This argument is vague. Nguyen does not say what evidence he
wanted to introduce and could not. He appears to simply complain he could not go on a
fishing expedition into the victim’s sexual past, which is not permissible.
{¶55} In addition, Nguyen complains he should have been able to introduce
evidence of his prior sexual relationship with the victim to rebut “the witnesses’ false
testimony early on that the accuser’s and Dr. Nguyen’s relationship was purely platonic
Athens App. No. 12CA14 22
* * *.” (Appellant’s Br. 10-11). Although confusing, it appears Nguyen argues that he
should have been permitted to question Jenny about the New York incident to prove her
friends and family lied when they testified that she and Nguyen were just friends.
However, there is no evidence Jenny’s friends or relatives knew of the New York
incident.
{¶56} In his reply brief, Nguyen makes extensive arguments about why he
should have been permitted to question the victim about any consensual sexual
activities that occurred during the 9-day Ohio visit. But as we noted above, the court
told Nguyen he could ask the victim about this. Defense counsel chose not to do so.
{¶57} For the foregoing reasons, we overrule the second assignment of error.
V. Photographs and “Testimonial Statements” on Exhibit Bags
{¶58} In his third assignment of error, Nguyen contends the court erred in
violation of the Sixth and Fourteenth Amendments and Evid.R. 403(A)3 and 611(A)
when it permitted enlarged photographs of the victim’s cervix and exhibit bags with
“testimonial statements” on them to be used in jury deliberations.
A. Photographs
{¶59} Although the assigned error appears to raise a constitutional challenge to
the admission of photographs of the victim’s cervix, Nguyen’s argument focuses solely
on Evid.R. 403(A) and 611(A). So we limit our analysis to those rules. Again, see
App.R. 16(A)(7). Evid.R. 403(A) prohibits the introduction of relevant evidence if “its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” Relevant evidence is “evidence
3
In the assigned error, Nguyen actually cites Evid.R. 403(B), but this appears to be a typographical error
as his argument focuses on Evid.R. 403(A).
Athens App. No. 12CA14 23
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Evid.R. 401. Evid.R. 611(A) provides: “The court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence so
as to (1) make the interrogation and presentation effective for the ascertainment of the
truth * * *.” Generally absent an abuse of discretion, we will not disturb a trial court’s
ruling on the admissibility of evidence. State v. Blevins, 4th Dist. No. 10CA3353, 2011-
Ohio-3367, ¶ 31.
{¶60} The State introduced the photographs at issue on day 3 of the trial.
Deborah Corbin, the registered nurse who took them, identified and testified about the
photos without objection. Nguyen did not object to them until day 5 when the State
sought to admit the photos into evidence. Even then, he only objected under Evid.R.
403 and not Evid.R. 611. “To be timely, an evidentiary objection at trial must be made
when the State presents the evidence.” State v. Bogan, 2d Dist. No. 24896, 2012-Ohio-
3712, ¶ 20. Because Nguyen failed to contemporaneously object during the
identification of and testimony about the photos, he forfeited all but plain error review.
See id. at ¶ 20-21. See also Section III.A., supra (explaining and applying this standard
of review).
{¶61} Nguyen complains the photos should have been taken with a colposcope
instead of a digital camera. He contends the photos are “inaccurate enlarged
photographs of a minor injury or abrasion to [the victim’s] cervix.” (Emphasis sic).
(Appellant’s Br. 12). And he argues that the jury “was not simply looking at an injury
caused to [the victim], the jury was then looking at an enlarged version of what may not
Athens App. No. 12CA14 24
have even been an injury.” (Appellant’s Br. 13).
{¶62} However, Corbin testified the photographs did depict an injury – bruising
to the cervix. The photos were probative because Corbin testified something has to
contact the cervix for bruising to occur. And Dr. Gwendolyn Nilsen testified that bruising
is evidence of “injury and violence to the cervix[.]” Corbin testified that her employer
has a colposcope, i.e., a “high definition like camera,” that is used during vaginal exams.
However, it was not working when she examined Jenny, so Corbin photographed the
cervix with a digital camera and used the zoom function. Nguyen admits that size alone
does not “automatically increase the prejudicial aspect” of photographic evidence. State
v. Biros, 78 Ohio St.3d 426, 444, 678 N.E.2d 891 (1977). And the mere fact that Corbin
used a digital camera instead of a colposcope does not diminish the probative value of
the photos to the point they should be inadmissible. Rather, Nguyen’s argument goes
to weight given the evidence, not its admissibility. Jurors knew Corbin used a digital
camera and could consider that when they evaluated the photos.
{¶63} Based on the foregoing, we conclude the trial court did not violate Evid.R.
403(A) or 611(A). The probative value of the photos was not substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury. And
the court’s admission of the photos did not make the presentation of evidence
ineffective for the ascertainment of the truth. Because no error occurred, plain error
cannot exist. Accordingly, we overrule this portion of the third assignment of error.
B. “Testimonial Statements” on Exhibit Bags
{¶64} Nguyen also contends the bags containing certain exhibits had testimonial
statements on them, and the court violated his Sixth and Fourteenth Amendment rights,
Athens App. No. 12CA14 25
along with Evid.R. 403(A) and 611(A), when it permitted the jury to see the bags during
deliberations. See Sections III. and V.A., supra, (explaining our standard of review for
these issues). The parties appear to dispute whether we should apply plain error
analysis because Nguyen objected to the statements after the exhibits were admitted.
Regardless of what standard we apply, Nguyen’s assignment of error cannot succeed.
{¶65} Nguyen complains the bag for exhibit 65 stated “scarf with possible semen
of suspect.” (Appellant’s Br. 13). He argues the scarf was never tested for semen, but
this was clear from the use of the word “possible.” Moreover, when Deputy Flickenger
identified the garment, he testified without objection that it was “a scarf, uh, possible
seamen [sic] stain on this garment.” And as Nguyen points out, the victim testified that
she wiped Nguyen’s semen off using the scarf. Therefore, the jury knew from sources
aside from the bag it was possible the scarf had semen on it. It also knew Nguyen was
the suspect.
{¶66} Next, Nguyen complains the bag for exhibit 66, latex gloves, stated “laying
on the floor...” (Appellant’s Br. 13). But Flickenger testified that was where he found
them. Nguyen argues the bag for exhibit 67, a shirt, said “torn off victim by suspect.”
(Appellant’s Br. 13). But Jenny testified Nguyen tore off her shirt. He also complains
the bag for exhibit 69, a piece of rope, states it was “found at the end of the bed.”
(Appellant’s Br. 13). But Flickenger testified he found the rope there. So again, the jury
had all the information Nguyen complains about from sources aside from the bags.
Nguyen also argues that he could not read some words on the bags for Exhibits 68 and
69. We fail to see how illegible words impacted the jury.
{¶67} Thus, to the extent any error occurred under the Ohio Rules of Evidence,
Athens App. No. 12CA14 26
it is harmless because it did not affect any substantial rights. Crim.R. 52(A). Any
constitutional error is harmless beyond a reasonable doubt. See State v. Ellis, 4th Dist.
No. 11CA3, 2012-Ohio-1022, ¶ 15. We overrule the rest of the third assigned error.
VI. Limitations on Cross-Examination of the Victim and Deputy Flickenger
A. The Victim
{¶68} In his fourth assignment of error, Nguyen contends in part that the court
violated his rights under the Sixth Amendment Confrontation Clause when it did not let
him “fully” cross-examine the victim about conversations she had about her testimony
during a trial recess. A trial court “retains wide latitude under the Confrontation Clause
to impose reasonable limits on cross-examination based on concerns about issues such
as harassment, prejudice, confusion of issues, witness safety or interrogation that is
repetitive or irrelevant.” State v. Knapke, 10th Dist. No. 08AP-933, 2009-Ohio-2989, ¶
7.
{¶69} Nguyen claims that “[d]uring a recess, [Jenny] was overheard discussing
her testimony with someone who appeared to be a state or county employee. * * *
Among other things, the person complimented her performance on the witness stand.”
(Appellant’s Br. 16). Nguyen complains the court sustained the State’s objection to
questions about the substance of the victim’s conversation with this “unknown
individual” and whether the victim “was being coached.” (Appellant’s Br. 16).
{¶70} Despite Nguyen's claims, there is no evidence in the record that the victim
spoke to anyone about her testimony during a recess. Moreover, the following
testimony occurred without objection:
Q: Now prior to coming uh to testify, uh did you talk to anyone in the
Sheriff’s department about your testimony, or your expected
Athens App. No. 12CA14 27
testimony?
A: No.
Q: Did you talk to anyone about your expected testimony?
A: No.
Q: Uh did anyone try to talk to you about your expected testimony?
A: No.
***
Q: Now I am asking ma’am did anybody comment on your testimony
between the time you got off the stand yesterday to the time you
got on today?
A: Uh, they did not –
{¶71} The victim denied that she spoke to anyone about her testimony and in
effect denied that she was coached. So Nguyen did obtain answers to the matters he
complains the court did not let him explore. The court had no duty to permit Nguyen to
ask additional questions on this topic. A defendant has no right to ask repetitive
questions until he gets an answer that he likes. See Knapke, 10th Dist. No. 08AP-933,
2009-Ohio-2989, at ¶ 7. We reject Nguyen’s argument.
B. Cross-Examination of Deputy Flickenger
{¶72} Nguyen also contends the court violated his Sixth Amendment
Confrontation Clause rights when it did not let him cross-examine Deputy Flickenger
about a police report the deputy used to refresh his memory. Nguyen claims Evid.R.
612 permits his proposed cross-examination but does not explain how a violation of that
rule constitutes a Confrontation Clause violation. Moreover, he only vaguely claims in a
parenthetical that the report “contradicted some of [Flickenger’s] testimony.”
(Appellant’s Br. 17). Nguyen does not explain what the purported contradictions were
or why they are significant. “ ‘If an argument exists that can support [an] assignment of
error, it is not this court’s duty to root it out. * * * It is not the function of this court to
Athens App. No. 12CA14 28
construct a foundation for [an appellant’s] claims [.]’ ” In re A.Z., 4th Dist. No. 11CA3,
2011-Ohio-6739, at ¶ 18, quoting Coleman, 4th Dist. No. 10CA5, 2011-Ohio-506, at ¶
13. For the foregoing reasons, we reject Nguyen’s claim and overrule the fourth
assigned error.
VII. Refreshing the Victim’s Memory
{¶73} In his eighth assignment of error, Nguyen contends the court violated his
rights under Evid.R. 612 when it permitted the prosecutor, under the guise of refreshing
the victim’s memory, to have the victim read certain exhibits to the jury. Although
Evid.R. 612 does discuss the use of a writing to refresh the memory of a witness, the
rule does not specifically prohibit a witness from reading the writing aloud. It appears
Nguyen’s argument actually relies on the “present recollection refreshed” doctrine.
Under that doctrine, “ ‘the witness looks at the memorandum to refresh his memory of
the events, but then proceeds to testify upon the basis of his present independent
knowledge.’ ” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶
57, quoting State v. Scott, 31 Ohio St.2d 1, 5-6, 285 N.E.2d 344 (1972). “The testimony
of the witness whose recollection has been refreshed is the evidence, not the contents
of the writing.” Powell at ¶ 57, citing 1 Giannelli, Evidence, Section 612.3, at 578 (3d
Ed.2010). Therefore, a “ ‘party may not read the statement aloud, have the witness
read it aloud, or otherwise place it before the jury.’ ” Powell at ¶ 57, quoting State v.
Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d 369 (1996).
{¶74} In addition, Nguyen asserts the court violated his Fourteenth Amendment
rights when it allowed the victim to read the exhibits to the jury. However, he does not
address the Fourteenth Amendment in his argument. Instead, he focuses on the Sixth
Athens App. No. 12CA14 29
Amendment Confrontation Clause even though he did not assign this as an error. Even
if we overlooked this failure to comply with the appellate rules and address the Sixth
Amendment argument, see App.R. 12(A)(2) and 16(A), Nguyen did not make the
argument at the trial level and forfeited all but plain error as to it.
{¶75} Even if we assume that the court erred when it permitted the victim to read
State’s Exhibits 23, 33, 34, and 91, and even if such error was of constitutional
magnitude, it was harmless beyond a reasonable doubt. Exhibits 33 and 34 are copies
of text messages. Derek Shoemaker testified these messages were sent from
Nguyen’s phone to the victim’s phone after the rape. He read the messages to the jury
without objection. Thus, the contents of those exhibits would have been before the jury
even if the court limited the victim’s testimony.
{¶76} Exhibits 23 and 91 relate to two phone calls, which Jenny did not answer,
that Nguyen purportedly made to her after the rape. The exhibits contain little
information – a name, the defendant’s phone number, a date and time, a “duration” of “0
h 0 min 00 sec,” and the words “Type: Missed Call.” After looking at the exhibits, the
victim testified each indicated a “missed call.” However, Jenny already testified that she
ignored two calls Nguyen made to her after the rape. Moreover, two other admitted
exhibits (the defendant’s phone records and a document titled “MOBILITY USAGE” for
the defendant’s phone) confirm these calls occurred. Therefore, the jury would have
known about the missed calls even if the court prohibited the victim from reading the
exhibits. We overrule the eighth assignment of error.
VIII. Manifest Weight of the Evidence and Sufficiency of the Evidence
{¶77} In his seventh assigned error, Nguyen contends his convictions are
Athens App. No. 12CA14 30
against the manifest weight of the evidence and insufficient evidence supports them.
“When an appellate court concludes that the weight of the evidence supports a
defendant’s conviction, this conclusion necessarily includes a finding that sufficient
evidence supports the conviction.” State v. Puckett, 191 Ohio App.3d 747, 2010-Ohio-
6597, 947 N.E.2d 730, ¶ 34 (4th Dist.). Therefore, we first consider whether Nguyen’s
convictions are against the manifest weight of the evidence.
{¶78} To determine whether a conviction is against the manifest weight of the
evidence, we “must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed.” State v. Brown, 4th Dist.
No. 09CA3, 2009-Ohio-5390, ¶ 24, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). A reviewing court “may not reverse a conviction when there is
substantial evidence upon which the trial court could reasonably conclude that all
elements of the offense have been proven beyond a reasonable doubt.” State v.
Johnson, 58 Ohio St.3d 40, 42, 567 N.E.2d 266 (1991).
{¶79} We must remember the weight to be given evidence and credibility to be
afforded testimony are issues for the trier of fact. State v. Frazier, 73 Ohio St.3d 323,
339, 652 N.E.2d 1000 (1995). The fact finder “is best able to view the witnesses and
observe their demeanor, gestures, and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.” Seasons Coal Co. v. City of
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We will only interfere if the
fact finder clearly lost its way and created a manifest miscarriage of justice. Moreover,
Athens App. No. 12CA14 31
“[t]o reverse a judgment of a trial court on the weight of the evidence, when the
judgment results from a trial by jury, a unanimous concurrence of all three judges on the
court of appeals panel reviewing the case is required.” Thompkins at paragraph four of
the syllabus, construing and applying Ohio Constitution, Article IV, Section 3(B)(3).
A. Rape
{¶80} The jury found Nguyen guilty of first-degree felony rape in violation of R.C.
2907.02(A)(2), which provides: “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.” Nguyen implicitly concedes that Jenny’s testimony alone, if believed, supports
his conviction. But he contends that her testimony and that of other State’s witnesses is
so unbelievable the jury lost its way in crediting it. However, as we explained in State v.
Murphy, 4th Dist. No. 07CA2953, 2008-Ohio-1744, ¶ 31:
It is the trier of fact’s role to determine what evidence is the most credible
and convincing. The fact finder is charged with the duty of choosing
between two competing versions of events, both of which are plausible
and have some factual support. Our role is simply to insure the decision is
based upon reason and fact. We do not second guess a decision that has
some basis in these two factors, even if we might see matters differently.
Having heard the testimony and observed the demeanor of the witnesses, the jury may
choose to believe all, part, or none of the testimony presented by any of them. State v.
Delawder, 4th Dist. No. 10CA3344, 2012-Ohio-1923, ¶ 18.
{¶81} Here, the jury chose to believe the State’s version of events, and we will
not substitute our judgment for that of the fact finder under these circumstances. The
evidence reasonably supports the conclusion that Nguyen purposely compelled Jenny
to engage in sexual conduct, i.e., vaginal intercourse, with him by force or threat of
force. In addition to Jenny’s testimony about Nguyen’s actions, the State presented
Athens App. No. 12CA14 32
evidence that after the rape Jenny had abrasions or scratches on her ankles and a
wrist, and she had dry adhesive on one of her wrists. Law enforcement found latex
gloves and a piece of the rope purportedly used at the crime scene. The State also
presented evidence that Jenny had redness and bruising on her cervix and Nguyen’s
semen in her vagina. Other evidence placed Nguyen’s cell phone in the Athens area
around the time of the rape. And a few days after the rape, he sent Jenny a text
message expressing hope that she could “forgive” him. After reviewing the entire
record, we conclude the jury did not lose its way or create a manifest miscarriage of
justice when it found Nguyen guilty of rape.
B. Kidnapping
{¶82} The jury found Nguyen committed kidnapping in violation of R.C.
2905.01(A)(2), which provides:
(A) No person, by force, threat, or deception * * * shall remove another
from the place where the other person is found or restrain the liberty of the
other person, for any of the following purposes:
***
(2) To facilitate the commission of any felony or flight thereafter[.]
{¶83} Again, Nguyen implicitly concedes Jenny’s testimony, if believed, supports
his conviction. However, he complains she “is not credible” for the same reasons
outlined in his argument against the rape conviction. (Appellant’s Br. 30). But again,
we will not usurp the jury’s role to determine credibility. See Murphy, 4th Dist. No.
07CA2953, 2008-Ohio-1744, at ¶ 31. Therefore, we reject Nguyen’s argument.
C. Aggravated Burglary
{¶84} The jury found Nguyen guilty of aggravated burglary under R.C.
Athens App. No. 12CA14 33
2911.11(A)(1), which states:
(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied
portion of an occupied structure, when another person other than an
accomplice of the offender is present, with purpose to commit in the
structure or in the separately secured or separately occupied portion of the
structure any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on
another[.]
{¶85} Nguyen contends the State failed to prove he trespassed. A person
commits a trespass when, without privilege to do so, he knowingly enters or remains on
the land or premises of another. R.C. 2911.21(A)(1); See R.C. 2911.10. Evidence
suggests Jenny implicitly consented to Nguyen’s entrance into the apartment. But as
Nguyen acknowledges, “the privilege of an invited guest to be on the premises is
terminated if he commits a violent act.” State v. Young, 4th Dist. No. 07CA3195, 2008-
Ohio-4752, ¶ 25, citing State v. Steffan, 31 Ohio St.3d 111, 115, 509 N.E.2d 383 (1987).
He implicitly concedes that Jenny’s testimony, if believed, supports a finding that he
committed a violent act.
{¶86} Nguyen again argues Jenny is not credible, so the jury could not believe
her testimony about “the rape, i.e. the terminating event * * *.” (Appellant’s Br. 30). And
because Jenny never explicitly told Nguyen to leave, he claims the aggravated burglary
conviction is against the manifest weight of the evidence. Once again Nguyen’s
argument asks us to usurp the jury’s role to determine credibility, which we will not do.
See Murphy, 4th Dist. No. 07CA2953, 2008-Ohio-1744, at ¶ 31. The jury was free to
believe Jenny’s testimony. Therefore, we reject his argument.
D. Tampering with Evidence
Athens App. No. 12CA14 34
{¶87} The jury found Nguyen tampered with evidence in violation of R.C.
2921.12(A)(1), which provides:
(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such
proceeding or investigation[.]
{¶88} The State presented evidence that Nguyen used medical tape, rope, and
scissors during this incident. Jenny testified that Nguyen took the rope with him and
that she thought he took the tape and scissors too. Law enforcement only found what
Jenny later identified as a piece of the rope at the crime scene and did not find the tape
or scissors. Nguyen contends that it “does not make sense” that he would take items
from the scene but leave behind latex gloves as the State claimed. (Appellant’s Br. 31).
In other words, he suggests that if he did tamper with evidence, he would have been
smart enough to remove all of it. But the jury was free to conclude he was careless.
{¶89} Obviously at the time Nguyen would have tampered with evidence, an
official proceeding or investigation was not yet in progress. Nguyen argues that he also
did not know an official proceeding or investigation was about to be or likely to be
instituted. Jenny testified she told Nguyen she would not report him to police and “his
demeanor thereafter changed.” (Appellant’s Br. 31). And “[i]f true, he had no reason to
remove evidence, nor would he have reason to know of any ‘official proceeding or
investigation.’ ” (Appellant’s Br. 31). However, the jury had no obligation to find that
Nguyen actually believed the victim would not report him. “When an offender commits
an unmistakable crime, the offender has constructive knowledge of an impending
Athens App. No. 12CA14 35
investigation of the crime committed.” State v. Schmitz, 10th Dist. No. 05AP-200, 2005-
Ohio-6617, ¶ 17. The victim’s testimony, which again, the jury was free to believe,
establishes that Nguyen committed unmistakable crimes.
{¶90} Nguyen also complains that he could not have “removed” the tape, rope,
or scissors from the crime scene if he owned them and brought them to the apartment.
However, ownership is irrelevant under R.C. 2921.12. From the victim’s testimony and
fact that law enforcement did not find tape, scissors, and most of the rope at the victim’s
house, the jurors could conclude Nguyen removed those items from the crime scene.
{¶91} In addition, Nguyen argues there was no evidence he “did anything ‘to
impair the evidence’s availability’ ” in an official proceeding or investigation. (Appellant’s
Br. 31). But under the statute, the offender does not have to actually impair the
evidence’s value or availability. It is sufficient that the offender alters, destroys,
conceals, or removes the item “with purpose” to impair its value or availability.
Moreover, the jury could logically conclude that was Nguyen’s purpose because he
committed unmistakable crimes and removed items used to facilitate those crimes from
the victim’s apartment before he left. And he expressed concern about the victim
contacting law enforcement. Therefore, the evidence reasonably supports the
conclusion that Nguyen tampered with evidence.
{¶92} Nguyen’s convictions are not against the manifest weight of the evidence.
This conclusion necessarily means sufficient evidence supports his convictions.
Accordingly, we overrule the seventh assignment of error.
IX. Jury Selection
{¶93} In his ninth assignment of error, Nguyen complains that the trial court
Athens App. No. 12CA14 36
committed errors in the jury selection process.
A. Pre-Trial Excuse and Deferral of Prospective Jurors
{¶94} An assignment commissioner drew a panel of 110 prospective jurors for
this case. Before trial, the court notified the parties it excused or deferred several for
various reasons, like vacations and medical issues. Nguyen argues the court erred
because it did this “ex parte,” violating his rights under the Sixth and Fourteenth
Amendments. “ ‘[Q]uestions of the scope and effect of constitutional protections, such
as the Sixth Amendment, are matters of law and therefore reviewed de novo.’ ” Dorsey,
5th Dist. No. 11CA39, 2012-Ohio-611, at ¶ 19, quoting Dunivant, 5th Dist. No.
2003CA00175, 2005-Ohio-1497, at ¶ 7. Nguyen also claims the court violated Crim.R.
43 (which provides that the defendant must be physically present at the impaneling of
the jury) and R.C. 2945.27 and Crim.R. 24 (which discuss a defendant’s right to
examine prospective jurors). However, because Nguyen failed to specifically make
these arguments before the court impaneled the jury, he forfeited all but plain error
review as to them. See Section III.A., supra (explaining this standard of review).
{¶95} The trial court acted sua sponte in this matter, not “ex parte,” i.e., it did not
discuss the prospective jurors with the State outside the presence of defense counsel.
In addition, “[t]he attendance or non-attendance of jurors, * * * and their discharge from
attendance on grounds of personal excuse, * * * [are] matters between the court and the
jurors, and with which the parties cannot, of right, interfere.” Bond v. State, 23 Ohio St.
349, 355 (1872), cited with approval in State v. Murphy, 91 Ohio St.3d 516, 525, 747
N.E.2d 765 (2001). Therefore, “ ‘[i]t is no ground for reversal of judgment in a criminal
case, that the court, before the day set for trial, discharged some of the jurors in
Athens App. No. 12CA14 37
attendance on grounds of personal excuse and upon their unsworn
statements ***.’ ” State v. Clemons, 3d Dist. No. 1-86-36, 1988 WL37129, *6 (Mar. 30,
1998), quoting Bond at paragraph three of the syllabus. “A party has no right to have
any particular juror on the panel. His right is to an impartial jury, and a juror’s erroneous
excusal does not compromise the jury’s impartiality.” Murphy at 525.
{¶96} The excuse and deferral of prospective jurors did not cause any
disqualified or biased juror to be seated. And the court did not impair Nguyen’s ability to
exercise peremptory challenges. Thus, the court did not deny him the essential benefits
of voir dire. Id. And even if we discerned an error in the court’s process, “[a]bsent a
systematic and intentional exclusion of a particular group of persons from jury service,
minor or technical defects in the jury selection process do not result in a constitutional
infirmity warranting reversal.” State v. Barney, 4th Dist. No. 97CA12, 1999 WL 378755,
*10 (June 7, 1999). Accordingly, we reject Nguyen’s argument.
B. Removal of Prospective Juror for Cause
{¶97} Nguyen also complains that during voir dire, the court “committed error”
when it removed prospective juror Simonton for cause, i.e., financial hardship.
(Appellant’s Br. 35). In his assigned error, it appears Nguyen complains this ruling
violated the Sixth and Fourteenth Amendments, R.C. 2945.27, Crim.R. 24, and Crim.R.
43. However, Nguyen does not mention these authorities in his argument, and because
he questioned Simonton during voir dire, they seem inapplicable. Therefore, we will
apply the general analysis for challenges for cause.
{¶98} “ ‘A person called as a juror in a criminal case may be challenged’ for a
number of reasons, including ‘[t]hat he otherwise is unsuitable for any other cause to
Athens App. No. 12CA14 38
serve as a juror.’ ” State v. White, 9th Dist. No. 24960, 2010-Ohio-2865, ¶ 7, quoting
R.C. 2945.25(O). See Crim.R. 24(C)(14). Financial hardship can make a prospective
juror “unsuitable” to serve as a juror. White at ¶ 13. “The validity of each challenge * * *
shall be determined by the court.” R.C. 2945.25. See Crim. R. 24(C). “A trial court’s
ruling on a challenge for cause will not be disturbed on appeal unless it is manifestly
arbitrary and unsupported by substantial testimony, so as to constitute an abuse of
discretion.” State v. Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997).
{¶99} During voir dire, the prosecutor indicated the trial might last one to three
weeks. Simonton stated that she is a home health aide six days a week, and for each
week the trial lasted she would miss four days of work.4 Simonton explained she lives
paycheck to paycheck. The following exchange occurred:
[DEFENSE COUNSEL]: One question, Ms. Simonton. Would you
rather not be on this jury because of what you just said? Because I want
you on the jury.
BY JUROR SIMONTON: I mean I would be on it. I mean I’ll get by
somehow. But (inaudible)
BY THE JUDGE: Well you’ll get thirty dollars a day. I don’t know
if that helps you very much or not. Probably not as much as working.
BY JUROR SIMONTON: It would help. But like she said usually you
have to wait before it’s over and then they mail the check to you. And
that’s was [sic] my thing, the two weeks, when I miss that pay to go
towards my bills. I mean I’ll figure it out. I’ll borrow the money and pay it
back or something. But –
BY THE JUDGE: Okay. Thank you.
{¶100} Nguyen is correct that Simonton expressed a willingness to be on
the jury and said she would “get by somehow.” Regardless, the court could conclude
4
These statements appear in the trial day 1 transcript at pages 113-114. Simonton is not identified by
name there, but we surmised she is the speaker because in later portions of the transcript the court
identifies Simonton as a “home health nurse” before questioning her more about her financial situation.
Athens App. No. 12CA14 39
she had a financial hardship because her service as a juror might put her into debt.
Simonton indicated that to “get by” she might have to borrow money because she lives
paycheck to paycheck and would only be able to work a third of her normal work week
for every week the trial lasted. Therefore, the court’s decision to remove her for cause
was supported by a discernible rational basis, i.e., it did not constitute an abuse of
discretion. We reject Nguyen’s argument and overrule the ninth assignment of error.
X. Merger
{¶101} In his fifth assignment of error, Nguyen contends the trial court
violated his right against Double Jeopardy when it failed to merge his convictions for
kidnapping, rape, and aggravated burglary under R.C. 2941.25. This statute “codifies
the protections of the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and Section 10, Article I of the Ohio Constitution, which prohibit[ ]
multiple punishments for the same offense.” State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, 922 N.E.2d 923, ¶ 23. R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus
as to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶102} “The question of whether offenses should merge under R.C.
2941.25 ordinarily presents a question of law we review de novo.” Delawder, 4th Dist.
No. 10CA3344, 2012-Ohio-1923, at ¶ 38. But, at the sentencing hearing Nguyen
argued only his convictions for rape and kidnapping merge. So on the question of
Athens App. No. 12CA14 40
whether his aggravated burglary conviction should also merge with the rape or
kidnapping convictions, we apply plain error. “However, the Supreme Court of Ohio has
previously held that imposition of multiple sentences in violation of R.C. 2941.25
constitutes plain error.” Id. citing Underwood at ¶ 31.
{¶103} “Through a series of opinions the Supreme Court of Ohio has
advised and re-advised lower courts on the difficult task of applying Ohio’s multiple-
count statute to determine which criminal convictions require merger.” Delawder at ¶
39. In the plurality decision of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,
942 N.E.2d 1061, which was released after Nguyen’s sentencing hearing, the Court
expressly overruled its then current test for merger. Under the new test, the trial court
must first determine “whether it is possible to commit one offense and commit the other
with the same conduct, not whether it is possible to commit one without committing the
other.” (Emphasis sic). Johnson at ¶ 48. If the offenses are so alike that the same
conduct can subject the accused to potential culpability for both, they are “of similar
import” and the court must proceed to the second step. The court must then determine
whether the offenses in fact were committed by the same conduct, i.e. committed as a
single act with a single animus. Id. at ¶ 49. If so, merger is necessary. However, if the
offenses resulted from separate acts or were performed with a separate animus, or if
the commission of one offense will never result in the commission of the other, the
offenses will not merge. Id. at ¶ 51.
A. Rape and Kidnapping
{¶104} It is possible to commit rape under R.C. 2907.02(A)(2) and
kidnapping under R.C. 2905.01(A)(2) with the same conduct. See State v. Rose, 12th
Athens App. No. 12CA14 41
Dist. No. CA2011-11-214, 2012-Ohio-5607, ¶ 91. See also Sections VIII.A and VIII.B.,
supra (quoting the statutory provisions). If the offender uses force or threat to restrain
the liberty of another person for the kidnapping offense, that same force or threat could
be the “force or threat of force” used to compel that person to submit to sexual conduct
for the rape offense. Therefore, the trial court correctly found that these are offenses of
similar import even though it applied the pre-Johnson analysis.
{¶105} The trial court orally found that Nguyen had a separate animus for
each crime; we agree with this conclusion. The State suggests no animus for the rape
aside from the obvious – sexual gratification. To be convicted of kidnapping under R.C.
2905.01(A)(2), the jury must find the defendant’s purpose was to facilitate the
commission of any felony or flight thereafter. At trial, the State argued that Nguyen’s
purpose was to facilitate the felony of rape, the felony of intimidation of a victim in a
criminal case (R.C. 2921.04), and/or flight thereafter.
{¶106} At one point before the rape, Nguyen tied up the victim with rope
but then cut the rope off. After the rape, Nguyen told the victim he was taking her to
New York, made her pack and get dressed, used medical tape to bind her arms
together, and took her from the bedroom to the living room. He also attempted to
blindfold her and tape her mouth shut. And he asked the victim about whether she
would report him to police. When she promised not to, he cut her arms free.
{¶107} This evidence suggests Nguyen restrained and moved the victim
after the rape to facilitate his flight from the crime scene or to intimidate her into not
filing criminal charges. In other words, evidence supports the conclusion that the post-
rape restraint and movement of the victim was not merely incidental to the rape. See
Athens App. No. 12CA14 42
State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), syllabus. Because a
separate animus exists for the rape and kidnapping convictions, they are not allied
offenses, and the trial court could sentence Nguyen separately for each crime.
B. Rape and Aggravated Burglary
{¶108} The trial court found that rape and aggravated burglary were not
offenses of similar import. However, using the Johnson test, we conclude it is possible
to commit rape under R.C. 2907.02(A)(2) and aggravated burglary under R.C.
2911.11(A)(1) with the same conduct. See Sections VIII.A. and VIII.C., supra (quoting
the statutory provisions). The force or threat of force used to commit the rape could
satisfy the requirement for aggravated burglary that the offender “inflicts, or attempts or
threatens to inflict physical harm on another[.]” R.C. 2911.11(A)(1). But even though
the offenses are of similar import, Nguyen can be sentenced for both if he committed
the crimes separately or with a separate animus. We remand for the trial court to
consider this issue and if necessary, to resentence Nguyen accordingly. See Delawder,
4th Dist. No. 10CA3344, 2012-Ohio-1923, at ¶ 5.
C. Kidnapping and Aggravated Burglary
{¶109} The trial court did not address whether the kidnapping and
aggravated burglary convictions merged. Using the Johnson test, we conclude it is
possible to commit kidnapping under R.C. 2905.01(A)(2) and aggravated burglary under
R.C. 2911.11(A)(1) with the same conduct. See Sections VIII.B. and VIII.C., supra
(quoting the statutory provisions). To commit kidnapping under R.C. 2905.01(A)(2), the
offender must use “force, threat, or deception.” If the offender uses force or threat, that
same force or threat could satisfy the requirement for aggravated burglary that the
Athens App. No. 12CA14 43
offender “inflicts, or attempts or threatens to inflict physical harm on another[.]” R.C.
2911.11(A)(1). But even though the offenses are of similar import, Nguyen can be
sentenced for both if he committed the crimes separately or with a separate animus.
We remand for the trial court to consider this issue and if necessary, to resentence
Nguyen accordingly. See Delawder at ¶ 5. Therefore, we overrule the fifth assigned
error in part, sustain it in part, and remand for the purposes outlined above.
XI. Sentence for Tampering with Evidence
{¶110} In his sixth assignment of error, Nguyen contends that the court
abused its discretion when it imposed maximum and consecutive sentences. However,
if on remand the trial court concludes that the kidnapping and aggravated burglary
offenses merge or that the rape and aggravated burglary charges merge, some of the
issues raised in this assignment of error as to those three convictions might be rendered
moot. Therefore, we will decline to address the arguments related to those offenses at
this time. See State v. Smith, 9th Dist. No. 00CA007619, 2001 WL 111562, *4 (Feb. 7,
2001). Nonetheless, we must still address Nguyen’s five-year maximum sentence for
tampering with evidence (which the court ordered him to serve concurrently to the
sentences for the other charges).
{¶111} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, the Supreme Court of Ohio announced the two-step analysis for appellate review
of felony sentences. First, we “must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the sentence is
not clearly and convincingly contrary to law, we review it for an abuse of discretion. Id.Athens App. No. 12CA14 44
{¶112} Nguyen does not argue that his tampering with evidence sentence
is clearly and convincingly contrary to law. He cites no failure of the trial court to comply
with any “applicable rules and statutes,” nor do we see any obvious violation of this
requirement. Thus, we conclude his sentence is not clearly and convincingly contrary to
law.
{¶113} Next, we must determine whether the trial court abused its
discretion in selecting Nguyen’s sentence for tampering with evidence. Again, the term
“abuse of discretion” implies that the court’s attitude is arbitrary, unreasonable, or
unconscionable. Adams, 62 Ohio St.2d at 157, 404 N.E.2d 144.
{¶114} Nguyen claims evidence does not support a finding that he “brought
gloves or rope” to the victim’s home. (Appellant’s Br. 22). However, it appears Nguyen
makes this statement to contest a comment the court made about the aggravated
burglary charge. To the extent the statement might relate to the tampering with
evidence sentence, we find it unpersuasive. In Section VIII.D. we already determined
the manifest weight of the evidence supports his conviction for that charge.
{¶115} Nguyen also generally argues that the trial court should have given
more weight to the fact that he was a 32-year-old first-offender. However, the mere fact
that Nguyen had no prior convictions does not demonstrate an arbitrary, unreasonable,
or unconscionable attitude on the part of the court in sentencing him for tampering with
evidence. Therefore, we reject this argument and overrule the sixth assignment of error
as to the sentence for that offense.
XII. Summary
{¶116} We overrule the first, second, third, fourth, seventh, eighth, and
Athens App. No. 12CA14 45
ninth assignments of error. We overrule the fifth assignment of error in part, sustain it in
part, and remand for further proceedings. The sixth assignment of error is sustained in
part; we decline to consider the remainder of that assigned error because it may be
rendered moot by our remand.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART,
AND CAUSE REMANDED.
Athens App. No. 12CA14 46
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART
and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY: ____________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.