State v. Plott ( 2017 )

[Cite as State v. Plott, 2017-Ohio-38.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE No. 13-15-39
v.
RAYMOND F. PLOTT, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE No. 13-15-40
v.
RAYMOND F. PLOTT, OPINION
DEFENDANT-APPELLANT.
Appeals from Seneca County Common Pleas Court
Trial Court Nos. 13-CR-0142 and
15 CR 0097
Judgments Affirmed
Date of Decision: January 9, 2017
APPEARANCES:
Joseph C. Patituce for Appellant
Derek W. DeVine for Appellee
Case Nos. 13-15-39, 13-15-40
SHAW, J.
{¶1} Defendant-appellant, Raymond Plott (“Plott”), brings these appeals
from the October 30, 2015, judgments of the Seneca County Common Pleas Court
sentencing him to an aggregate 10-year prison term after he was found guilty in a
jury trial of one count of Rape in violation of R.C. 2907.02(A)(2), a felony of the
first degree, one count of Domestic Violence in violation of R.C. 2919.25(A),
(D)(4), a felony of the third degree due to Plott having two prior Domestic Violence
convictions, and one count of Abduction in violation of R.C. 2905.02(A)(2), a
felony of the third degree. On appeal, Plott argues that (1) the State improperly
introduced evidence of his pre-arrest silence; (2) the trial court erred in denying his
motions for acquittal; (3) the State improperly introduced opinion testimony; (4) the
State improperly impeached its own witness; (5) the trial court erred in allowing a
witness to testify as a strangulation expert; (6) the trial court improperly commented
that his counsel was dishonest; (7) the trial court erred in granting the State’s
“Motion for Consolidation” and denying his motion to sever; (8) his convictions are
against the manifest weight of the evidence; and (9) the State committed
prosecutorial misconduct.
Relevant Facts and Procedural History
{¶2} On August 29, 2013, the Seneca County Grand Jury indicted Plott on
two counts of Rape in violation of R.C. 2907.02(A)(2), both felonies of the first
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degree.1 The charges stemmed from allegations that Plott had sexually assaulted
K.D. at Plott’s residence on or about July 6, 2013.
{¶3} Following a mistrial on those charges, the Seneca County Grand Jury
issued a second indictment against Plott alleging one count of Domestic Violence
in violation of R.C. 2919.25(A), (D)(4), a felony of the third degree, and one count
of Abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree.2 The
charges stemmed from allegations that Plott had also assaulted his fiancé, Julia
Mele, on the same night Plott had allegedly raped K.D.
{¶4} On June 8, 2015, the State moved to consolidate the two cases for trial.
That same day, after Plott was arraigned on the new charges, a hearing was held on
the State’s motion, where the following exchange occurred:
The Court: Now, there is also a motion for consolidation of cases
for purposes of jury trial. That being 13 CR 0142 and 15 CR 0097.
Court has your motion. Anything further?
[The Prosecutor]: No, Your Honor.
The Court: Any objection?
[Defense Counsel]: No, Your Honor.
The Court: Thank you. The Court grants the motion to
consolidate for purposes of trial, and both cases will be tried on
the same date and time * * *.
June 8, 2015 Hrg., p. 8-9.
1
The Rape allegations correspond to appellate case number 13-15-39.
2
The Domestic Violence and Abduction allegations correspond to appellate case number 13-15-40.
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{¶5} On September 9, 2015, just five days before trial, Plott filed a motion
to sever, arguing that joinder was improper under the Criminal Rules of Procedure
and he was prejudiced thereby.
{¶6} On the morning of trial, a hearing was held on Plott’s motion to sever
and Plott’s motion was ultimately denied. The case then proceeded to trial, where
the following relevant evidence was presented.
{¶7} Lieutenant Jason Windsor of the Tiffin Police Department was the first
witness to testify on behalf of the State. He testified that on July 7, 2013, he was
called into work to investigate an alleged sexual assault at Lot 107 of the Highland
Trailer Court (“the residence”). He stated that through his investigation, he learned
that Plott, Mele, and K.D., the alleged victim, lived at the residence. He stated that
he spoke with K.D. at the hospital, where he obtained her statement and
photographed her injuries. He added that he later obtained a warrant to search the
residence.
{¶8} Lieutenant Windsor testified that he also interviewed Mele after
learning that she had been assaulted by Plott that evening. He stated that he
observed “some prominent bruising to [Mele’s] neck.” Trial Tr., p. 153. He stated
that the bruising was on the left side of her neck, going slightly to the rear.
Lieutenant Windsor testified that he photographed Mele’s injuries and those
photographs were later introduced into evidence.
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{¶9} Lieutenant Windsor testified that Mele was not cooperative with the
investigation insofar as there was an allegation that she was trying to get K.D. to
change her statement. He added that “victims of domestic violence are known to
frequently recant their statements to protect their abusers.” Trial Tr., p. 152.
{¶10} Finally, Lieutenant Windsor testified that he spoke with Plott over the
phone the day after the alleged assaults. He stated, “[Plott] said he was coming to
turn himself in and that he wasn’t going to talk to me without his attorney.” Id. at
p. 158. He added that he later obtained a warrant to collect Plott’s DNA. At this
point in the trial the stipulations were read to the jury that had been reached between
the parties. It was stipulated to a reasonable degree of scientific certainty that a
semen sample taken from a vaginal swab of K.D. matched Plott’s DNA. It was also
stipulated that Plott had two prior convictions for Domestic Violence.
{¶11} On cross-examination, Lieutenant Windsor was asked about the
evidence linking Plott to Mele’s injuries. Defense counsel asked whether
Lieutenant Windsor had any evidence that Plott attempted to strangle Mele and he
responded that he had Mele’s statement and the injuries to K.D.’s neck.
{¶12} Detective Rachel Nye of the Tiffin Police Department was the second
witness to testify on behalf of the State. Detective Nye testified that on July 7, 2013,
she was called into work to assist Lieutenant Windsor with his investigation of an
alleged rape. She stated that she spoke with K.D. at the hospital and took
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photographs of K.D.’s bruised arms and legs. She added that she also picked up
K.D.’s rape kit from the hospital and took it to the police station.
{¶13} Megan Homan, a Registered Nurse and Sexual Assault Nurse
Examiner, was the third witness to testify on behalf of the State. She testified that
on July 7, 2013, she performed a sexual assault examination of K.D., which included
documenting the bruises on K.D.’s body, specifically on K.D.’s arms and legs, and
swabbing K.D.’s body for possible DNA. Homan testified that during the
examination K.D. was “quiet,” and “[a]t times she was tearful.” Trial Tr., p. 197.
Homan’s report was introduced into evidence.
{¶14} On cross-examination, Homan testified that K.D. informed her during
the examination that Plott had penetrated her once with his genitals. The statement
that Homan took from K.D. indicated that Plott had initially digitally penetrated
K.D. and then later turned her on her side and penetrated her with his genitals.
{¶15} Jody Noon, a friend of Mele’s, was the fourth witness to testify on
behalf of the State. Noon testified that she was with Mele and Plott at the Eagles, a
local bar, on July 6, 2013. Noon testified that Plott was told to leave the bar that
evening because he was getting loud. Noon testified that before Mele and Plott left
the bar, Noon did not observe any marks on Mele’s neck.
{¶16} Noon testified that Mele called her later in the evening, “crying and
upset,” stating that Mele needed a ride from Plott’s residence because Plott had “hurt
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her,” and that it was “urgen[t].” Trial Tr., p. 241. Noon testified that she went and
picked up Mele and that when she did, she noticed marks on Mele’s neck that she
had not seen earlier that night.
{¶17} On cross-examination, Noon testified that Mele told her that she and
Plott had been at the Eagles earlier that day for approximately 12 hours. Noon
testified that she left Mele at the Eagles around 11:45 p.m. but met Mele back at the
Eagles the following afternoon and Noon eventually took Mele to the police station.
{¶18} On re-direct, Noon testified that she had offered to take Mele to the
police station when she picked Mele up from the residence on the night of the
alleged incident, but Mele declined.
{¶19} On re-cross, Noon stated that Mele told her the following afternoon
that the police were calling her, but she was not going to answer.
{¶20} On re-direct, she stated that Mele had found out that Plott had done
something wrong.
{¶21} K.D. was the fifth witness to testify on behalf of the State. K.D.
testified that she was originally from Carey, Ohio but had been living in Kentucky
with her fiancé. She stated that in May of 2013 she left Kentucky and moved in
with Mele, and Mele’s fiancé, Plott. K.D. testified that Mele was a “real good”
friend of hers and that she had been for “a few years.” Trial Tr., p. 257.
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{¶22} K.D. testified that on the evening of July 6, 2013, she was alone at the
residence she shared with Plott and Mele. K.D. testified that she had taken
medication for sleep and anxiety when Plott and Mele arrived back at the residence.
She stated that Plott appeared “very aggravated, agitated. Just raging.” Id. at p.
259. She stated that as Plott and Mele entered the residence, Plott kicked, pushed,
or shoved Mele through the doorway. She explained, “[Plott] kept telling her to get
up and he kept kicking her and telling her to get up. And she was saying she
couldn’t.” Id. She testified specifically that Plott choked Mele and pulled her hair.
K.D. added that when she picked up her phone, Plott threatened “to get [her], too”
and eventually took her phone. Id.
{¶23} K.D. testified that she went to her bedroom, but Plott followed her and
cornered her between her nightstand and her dresser. She explained, “[Plott] was
telling me that he was going to kill me and that he was going to wrap my body in
plastic and throw it in the river.” Id. at p. 262. She testified that Plott asked her to
come up with reasons why she deserved to live and she told him that she had
children and grandchildren and had taken care of her dying mother. She added that
Plott hit her face and arms and knocked her glasses off of her face.
{¶24} K.D. testified that Mele eventually came into the bedroom too but
dropped her purse, causing its contents to fall out. K.D. testified that Plott “made
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[Mele] get down on all fours and made her crawl.” Id. at p. 262. K.D. added that
Plott was also “making [Mele] like kiss [her] feet and things * * *.” Id. at p. 263.
{¶25} K.D. testified that Plott eventually calmed down and went into the
living room, but she did not leave the residence because she had taken medications
that prevented her from driving and Mele could not drive because she had been
drinking all day. K.D. added that she also did not want to let Plott see her because
she “was scared of what he would do.” Id. at p. 264.
{¶26} K.D. testified that she went to bed but later awoke to Plott standing
next to her. She testified that Plott told her that Mele had left the residence and that
they were alone. K.D. explained that Plott came in and out of her room “three or
four” times, trying to convince her to engage in sexual activities. Trial Tr., p. 267.
She stated that Plott told her that he would leave if she let him do it once. K.D.
testified that she told Plott no. K.D. stated that after the third or fourth time, Plott
said “I guess I’ll have to rape you.” Id. at p. 268.
{¶27} K.D. testified that Plott pulled the covers off of her, climbed on top of
her, penetrated her with his genitals, and ejaculated. K.D. testified that she
“plead[ed] over and over to please stop.” Id. at p. 269. She stated that when he
finished, he left her bedroom and went back to the living room. She added that Plott
came back to her room later and stated that he wanted to have sex with her again.
She stated, “I still asked him not to, and he pulled my body to the side of the bed
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and penetrated me that way with me on my side.” Id. at p. 270. K.D. testified that
Plott told her not to say anything so that when Mele was not home they could
“continue to do things.” Id. at p. 271.
{¶28} On cross-examination, K.D. testified that the night before the alleged
rapes she had gone to a bar with Mele and Noon. She stated that Mele and Noon
wanted to stay until the bar closed, but she did not want to so she left and stayed the
night at her friend’s house. She added that she went back to the residence the next
morning after going to the Eagles and picking up a house key from Mele.
{¶29} K.D. reiterated that she took several sleeping medications around 9:00
p.m. on the night of the alleged sexual assaults. She added that the medications
prevent her from driving but do not impair her overall ability to function. K.D.
stated that the rapes occurred in the early morning hours within 30 minutes of each
other and that Plott ejaculated both times. She added that she allowed Plott to kiss
and touch her when he was in her room because he told her that he would leave if
she did.
{¶30} Mele was the sixth witness to testify on behalf of the State. She
testified that she and Plott were engaged and the two lived together at the residence,
along with K.D. She testified that she remembered leaving the bar with Plott at
some point on the evening of July 6, 2013 and going back to the residence, where
K.D. was. She added, however, that she did not remember how she got the marks
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on her neck. She stated, “I, I know I fell the day before, but I don’t know if it was
from that or if anything happened to me that night. I don’t know.” Id. at p. 368.
Mele indicated that she had fallen on her knees into a “bush thing,” and it was
possible that she received the injuries to her neck that way on the day prior to the
alleged incident. Id. at p. 368-369.
{¶31} Mele initially testified that she did not remember her interview with
Lieutenant Windsor. She explained, “I remember being there. I don’t remember
our conversation. I know he was asking me questions, but what I was saying, I don’t
know. Like I said, I was still drunk then, too.” Id. at p. 369. Then, the following
colloquy took place:
[The Prosecutor]: If you had an opportunity to view the
conversation today, would that refresh your recollection?
[Mele]: It probably will not because it’s just showing me what I
said. I’m not going to remember without seeing it, I’m not going
to remember it. I don’t think it’s going to bring back my memory
of what I said. What I said is what I said. It might have happened
at that point, but as time goes by, two years later, I’m thinking I
don’t remember what actually happened.
[The Prosecutor]: And that’s not, that’s okay, [Mele]. That’s not
what I’m asking you. I’m asking you, you indicated you don’t
remember what you said?
[Mele]: I don’t remember what I said. I don’t remember.
[The Prosecutor]: To Lieutenant Windsor?
[Mele]: No.
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[The Prosecutor]: Okay. You’re testifying in front of the jury that
actually viewing your conversation and a video recording of your
conversation with Lieutenant Windsor, seeing that, that would
not help you remember what you said to Lieutenant Windsor?
[Mele]: It would probably help me - - I would see what I said, but
I don’t know if it’s what I remember what I said. You know what
I’m - - I’m trying to explain this better. But showing me the video
is only going to show me what I said. But without the video, I’m
not going to, I wouldn’t remember what I said.
[The Prosecutor]: Right. So the video will help you know what
you said? I just want to make sure we’re clear.
[Mele]: Sure would, seeing it.
Id. at p. 369-371.
{¶32} Thereafter, the jury was excused, and the State played the video of
Mele’s interview with Lieutenant Windsor. After the video was played, the jury
returned, and the prosecutor asked whether Mele’s recollection was refreshed. Mele
equivocated, first stating that she still did not “remember our interview[.]” Id. at p.
410. However, she would go on to waver between saying she did not remember the
interview or what happened and saying that she remembered certain “parts of it”
and certain events from the night in question, just nothing related to whether Plott
actually harmed her. Id.
{¶33} As to the incident in question, Mele testified that she remembered
some things, such as being on the floor of the residence and K.D. “giggling” on the
couch at one point. Id. at p. 415. Mele emphasized that she did not know how she
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got the marks on her neck. She testified, “I know I fell, so I can’t, I can’t say 100
percent [Plott] did it and I can’t say 100 percent he didn’t do it.” Id. at p. 416.
{¶34} On cross-examination, Mele testified that the day before the incident
she had gone out to a bar with K.D. and Noon. She stated that K.D. and Noon
eventually left the bar, but she stayed until closing. She added that she stayed at her
friends’ house that night and met Plott the following morning at the Eagles where
she drank all day.
{¶35} She testified that she did not remember whether she and Plott were
arguing about K.D., but she remembered wanting to leave the residence. She added
that K.D. must have known that she was leaving the residence because Mele was
getting ready to go. Mele stated that Plott never prevented her from leaving the
residence or told her that she had to stay.
{¶36} Mele testified that she did not remember whether Plott said he was
going to kill her or whether he choked her. She further testified that she did not
remember Plott hitting K.D. She stated that she thought she saw Plott hit K.D. but
it was only a shadow, so Mele did not directly observe any actual strikes. She stated
that Plott was very upset with K.D. and was yelling at her to leave, but K.D. was on
the couch giggling and laughing with Plott later that night before Mele left.
{¶37} On re-direct Mele testified that she did remember Plott asking K.D.
what “good” she had done in life. Id. at p. 429.
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{¶38} Ruth Downing was the final witness to testify on behalf of the State.
After being recognized as an expert on the identification and effects of strangulation,
she testified that Mele’s injuries to her neck were consistent with a strangulation
injury to a reasonable degree of scientific certainty.
{¶39} Upon the conclusion of Downing’s testimony, the State rested. At that
time, Plott renewed all previous motions and objections, which the trial court denied
and overruled, respectively. Plott also moved for an acquittal on all charges
pursuant to Crim.R. 29, which the trial court denied.
{¶40} Plott then testified as the defense’s sole witness. He testified that he
and Mele were not engaged and had not recently had any sexual relationship. He
stated that they were in a relationship more than one year ago, but they were now
just friends.
{¶41} Plott testified that the night before the alleged assaults occurred, Mele
and Noon went out to a bar. He stated that at 3:00 a.m., Mele called him and asked
him to come pick her up because K.D. had left her at a bar. He stated that he told
Mele that he could not pick her up until later that morning.
{¶42} Plott testified that when he saw Mele the next day, he noticed a few
marks on her neck. He stated that he and Mele got into an argument about what had
happened to her but Mele could not remember. He added that he was upset with
K.D. for abandoning Mele.
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{¶43} Plott testified that he and Mele eventually went to the Eagles where
they stayed until about 8:30 p.m. He added that he “had a buzz on.” Id. at p. 482.
He testified that when they got back to the residence, he and Mele continued to
argue. He stated that Mele was concerned that he was going to make K.D. leave the
residence immediately. He added that during their argument, he never pushed,
kicked, or choked Mele. He testified that after they finished arguing, Mele left. He
added that around this time, K.D. was seated on the couch “just making jokes and
kidding around.” Id. at p. 486.
{¶44} Plott testified that after Mele left, he went to bed but later awoke to
make some dinner. He explained that after he finished eating, K.D. “came up behind
[him] and put her arms around [him] and started kissing on [his] neck and stuff.”
Id. at p. 491. He stated that they ended up back in her bedroom where they had
consensual sex. He added that he never forced himself on her or threatened her in
any way.
{¶45} Plott admitted that he had previously pleaded guilty to two domestic
violence charges because he was guilty of those offenses but stated that he did not
enter pleas of guilty in these cases because he did not commit the offenses, “plain
and simple.” Id. at p. 477.
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{¶46} On cross-examination, Plott stated that Mele was his girlfriend insofar
as he had not been with anyone since her, and he cared for her. He added that they
did not have a sexual relationship and did not sleep in the same bed.
{¶47} Upon the conclusion of Plott’s testimony, the defense rested, and Plott
renewed all previous motions and objections, which the trial court denied and
overruled, respectively. The case was then submitted to the jury.
{¶48} Ultimately the jury found Plott guilty of one count of Rape, Domestic
Violence, and Abduction. He was acquitted of the second count of Rape.
{¶49} On October 26, 2015, Plott’s sentencing hearing was held. At the
hearing it was determined that the Domestic Violence and Abduction charges should
merge for purposes of sentencing, and the State elected to proceed to sentence on
the Domestic Violence charge. Plott was ultimately ordered to serve 8 years in
prison on the Rape conviction and 24 months in prison on the Domestic Violence
conviction, consecutive to each other, for an aggregate 10-year prison term.
Judgment Entries memorializing Plott’s sentences were filed on October 30, 2015.
It is from these judgments that Plott appeals, presenting the following assignments
of error for our review.
Assignment of Error No. I
THE STATE OF OHIO IMPROPERLY INTRODUCED
APPELLANT’S PRE-ARREST SILENCE AS SUBSTANTIVE
EVIDENCE OF GUILT IN VIOLATION OF APPELLANT’S
RIGHT TO REMAIN SILENT UNDER THE FIFTH AND
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FOURTEENTH AMENDMENTS TO THE UNITED STATE’S
CONSTITUTION.
Assignment of Error No. II
THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29
WHEN THE STATE OF OHIO FAILED TO PRESENT
SUFFICIENT EVIDENCE THAT APPELLANT WAS GUILTY
OF DOMESTIC VIOLENCE AND ABDUCTION.
Assignment of Error No. III
THE STATE OF OHIO IMPROPERLY, OVER THE
OBJECTION OF COUNSEL, INTRODUCED OPINION
TESTIMONY FROM DETECTIVE JASON WINDSOR TO
THE PREJUDICE OF APPELLANT AND DEPRIVED HIM OF
HIS RIGHT TO A FAIR TRIAL.
Assignment of Error No. IV
THE STATE OF OHIO IMPROPERLY IMPEACHED ITS
OWN WITNESS WITH A PRIOR OUT OF COURT
STATEMENT TO THE PREJUDICE OF APPELLANT
DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL.
Assignment of Error No. V
THE TRIAL COURT IMPROPERLY PERMITTED A
WITNESS TO TESTIFY AS A STRANGULATION EXPERT IN
VIOLATION OF EVID. R. 702.
Assignment of Error No. VI
THE TRIAL COURT IMPROPERLY INTERJECTED ITS
OPINION THAT APPELLANT’S COUNSEL WAS NOT
HONEST.
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Assignment of Error No. VII
THE TRIAL COURT COMMITTED ERROR WHEN IT
GRANTED THE STATE OF OHIO’S MOTION TO JOIN THE
TWO SEPARATE CASES TOGETHER, AND IN THE
ALTERNATIVE ERRED WHEN IT DENIED THE MOTION
TO SEVER THE TWO CASES.
Assignment of Error No. VIII
APPELLANT’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. IX
THE STATE OF OHIO COMMITTED PROSECUTORIAL
MISCONDUCT WHEN IT INTRODUCED TESTIMONY
RELATING TO APPELLANT’S PRE-ARREST SILENCE.
Assignment of Error No. X
THE STATE OF OHIO COMMITTED PROSECUTORIAL
MISCONDUCT DURING CLOSING ARGUMENTS BY
DENIGRATING OPPOSING COUNSEL AND THE DEFENSE.
{¶50} For ease of discussion we elect to address some of Plott’s assignments
of error together, and out of the order in which they were raised.
Assignment of Error No. VII
{¶51} In his seventh assignment of error, Plott argues that the trial court erred
in granting the State’s “Motion for Consolidation” or, in the alternative, denying his
motion to sever. Specifically, Plott argues that (1) joinder was improper under the
Rules of Criminal Procedure and that (2) he was prejudiced insofar as the jury got
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to consider evidence of his prior domestic violence convictions when considering
whether he raped K.D. We disagree.
{¶52} Issues of joinder and severance are generally reviewed under an abuse
of discretion standard. State v. Shook, 3d Dist. Logan No. 8-14-01, 2014-Ohio-
3987, ¶ 22; State v. Bell, 3d Dist. Seneca No. 13-12-39, 2013-Ohio-1299, ¶ 27. A
trial court will be found to have abused its discretion when its decision is contrary
to law, unreasonable, not supported by the evidence, or grossly unsound. State v.
Boles, 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 18. When applying the
abuse of discretion standard, a reviewing court may not simply substitute its
judgment for that of the trial court. State v. Slappey, 3d Dist. Marion No. 9-12-58,
2013-Ohio-1939, ¶ 12.
{¶53} However, as to the issue of joinder, Plott initially failed to object to
the State’s “Motion for Consolidation,” and therefore, he waived all but plain error.
State v. Bump, 3d Dist. Logan No. 8-12-04, 2013-Ohio-1006, ¶ 81. To have plain
error under Crim.R. 52(B), the error must be an “obvious” defect in the trial
proceedings that affected the defendant’s “substantial rights.” State v. Barnes, 94
Ohio St.3d 21, 27 (2002). Plain error is to be used “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id. Further, plain error only exists where “but for the error, the outcome of the trial
would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 436 (1997).
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{¶54} Under Crim.R. 13, a trial court may order two or more indictments to
be tried together “if the offenses or the defendants could have been joined in a single
indictment or information.” Two or more offenses may be charged in the same
indictment if they are of “the same or similar character, or are based on the same act
or transaction, or are based on two or more acts or transactions connected together
or constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.” Crim.R. 8(A).
{¶55} Nonetheless, a defendant may move to sever the indictments joined
for trial if it appears that their joinder is prejudicial. Crim.R. 14. To prevail on a
motion to sever, a defendant has the burden of demonstrating that
(1) his rights were prejudiced, (2) that at the time of the motion
to sever he provided the trial court with sufficient information so
that it could weigh the considerations favoring joinder against the
defendant's right to a fair trial, and (3) that given the information
provided to the court, it abused its discretion in refusing to
separate the charges for trial.
State v. Schaim, 65 Ohio St.3d 51, 59 (1992). “When a defendant claims that he
was prejudiced by the joinder of multiple offenses, a court must determine (1)
whether evidence of the other crimes would be admissible even if the counts were
severed, and (2) if not, whether the evidence of each crime is simple and distinct.”
Id.{¶56} A motion to sever is a pre-trial motion and subject to the time
limitation contained in Crim.R. 12(D). Crim.R. 12(C)(5). Crim.R. 12(D) provides,
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“All pretrial motions * * * shall be made within thirty-five days after arraignment
or seven days before trial, whichever is earlier” unless the court extends the time for
pretrial motions based on the “interest of justice.”
{¶57} Courts have affirmed denials of motions to sever where defendants
failed to file them in a timely fashion. See, e.g., State v. Bell, 3d Dist. Seneca No.
13-12-39, 2013-Ohio-1299, ¶ 30 (finding no abuse of discretion where motion to
sever was untimely and defendant offered no legitimate reason for its untimeliness);
State v. Montgomery, 2d Dist. Montgomery No. 22193, 2009–Ohio–1415, ¶ 17
(affirming denial of motion to sever where it was filed outside the time constraints
of Crim.R. 12(D)); State v. Segines, 8th Dist. Cuyahoga No. 89915, 2008–Ohio–
2041, ¶ 57.
{¶58} Here, we cannot say that the trial court abused its discretion in denying
Plott’s motion to sever. Plott was arraigned on the charges of Domestic Violence
and Abduction on June 8, 2015, at which time the trial court also granted the State’s
“Motion to Consolidate.” Plott made no objection to joinder at that time. Rather,
Plott filed his motion to sever on September 9, 2015, three months after the
indictments were joined and five days before trial and offered no reason as to why
his motion was untimely.
{¶59} Likewise, we cannot say that the trial court erred in granting the State’s
“Motion to Consolidate.” The State alleged that Plott assaulted Mele and K.D. at
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the residence on July 6, 2013. The assaults allegedly occurred within a few hours
of each other, and K.D. witnessed Plott’s assault on Mele. This could support a
conclusion that the offenses were of “the same or similar character, or are based on
the same act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are part of
a course of criminal conduct.” Crim.R. 8(A). Alternatively, the evidence related to
each crime was separate and distinct and easily discernible by a jury.
{¶60} For these reasons, we find that the trial court did not err in granting the
State’s “Motion to Consolidate” and denying Plott’s motion to sever.3 Accordingly,
we overrule Plott’s seventh assignment of error.
Assignment of Error No. II
{¶61} In his second assignment of error, Plott argues that the trial court erred
in denying his motions for acquittal on the Domestic Violence and Abduction
charges. Specifically, Plott argues that the State failed to prove that Mele was a
“family or household member” within the meaning of R.C. 2919.25 and that the
State failed to prove that Mele was “placed in fear” within the meaning of R.C.
2905.02.4 We disagree.
3
This is true regardless of what standard of review we apply. To the extent that Plott filing a late motion to
sever constitutes an “objection” to the much earlier joinder, which we would review under a harmless
error/abuse of discretion standard, we cannot find that there was error here.
4
Plott does not challenge the trial court’s denial of his motions for acquittal on the charge of Rape or any
other element of the Domestic Violence and Abduction charges.
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{¶62} When an appellate court reviews the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. State v. Monroe,
105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy. State
v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, the question of whether the offered evidence is sufficient to sustain a
verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-
Ohio-2079, ¶ 4.
R.C. 2919.25 – Domestic Violence
{¶63} R.C. 2919.25(A) provides, “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.” “Family or
household member” means any of the following:
(a) Any of the following who is residing or has resided with the
offender:
(i) A spouse, a person living as a spouse, or a former spouse
of the offender;
***
R.C. 2919.25(F)(1). “Person living as a spouse” means “a person who is living or
has lived with the offender in a common law marital relationship, who otherwise is
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cohabiting with the offender, or who otherwise has cohabited with the offender
within five years prior to the date of the alleged commission of the act in question.”
R.C. 2919.25(F)(2).
{¶64} Here, Plott argues that the State did not present sufficient evidence that
he and Mele “cohabitated.” Specifically, Plott argues that the evidence shows that
he “was the one that maintained his home, paid the bills for his home, and that he
was the sole owner of it.” Appellant’s Brief, p. 14.
{¶65} However, in State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85,
¶¶ 17-18, the Ohio Supreme Court found that the State is not required to present
evidence of shared financial or familial responsibilities and consortium in order to
establish “cohabitation” if the victim testifies that she and the defendant were living
together at the time of the incident. The Court noted that this kind of evidence is
only required “when the victim and the defendant do not share the same residence.”
(Emphasis sic.) Id. at ¶ 13.
{¶66} During the State’s case-in-chief, Mele testified that she and Plott were
engaged and lived together at the residence at the time of the alleged assault. Other
witnesses also testified that Mele lived at the residence. Pursuant to McGlothan,
this is sufficient to show that Mele was a “person living as a spouse” within the
meaning of R.C. 2919.25(F)(2) and therefore, a “family or household member”
within the meaning of 2919.25(F)(1).
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R.C. 2905.02 - Abduction
{¶67} R.C. 2905.02(A)(1) provides, “No person, without privilege to do so,
shall knowingly do any of the following: By force or threat, restrain the liberty of
another person under circumstances that create a risk of physical harm to the victim
or place the other person in fear.”
{¶68} Here, Plott argues that in order to convict him of Abduction, the State
had to prove that he “knowingly, by force or threat of force, restrained [Mele’s]
liberty under circumstances that placed her in fear.” Appellant’s Brief, p. 14. Plott
claims that “if [Mele] was never put in fear by [his] actions, [he] would not be guilty
of abduction.” Id.
{¶69} However, the statute does not require that the victim be placed in fear
in order for a defendant to be convicted of abduction; a defendant may be convicted
of abduction if the defendant, by force or threat, restrains the victim’s liberty under
circumstances that create a risk of physical harm to the victim.
{¶70} During the State’s case-in-chief, K.D. testified that she observed Plott
choke Mele and kick her repeatedly, knocking her to the floor. She added that Mele
tried to get up off the floor, but Plott kept kicking her. This testimony is sufficient
to establish that Plott forcibly restrained Mele’s liberty under circumstances that
created a risk of physical harm to her.
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{¶71} For these reasons, we find that the trial court did not err in denying
Plott’s motions for acquittal. Accordingly, Plott’s second assignment of error is
overruled.
Assignment of Error No. VIII
{¶72} In Plott’s eighth assignment of error, he argues that his convictions for
Rape, Domestic Violence, and Abduction were against the manifest weight of the
evidence. We disagree.
{¶73} The Supreme Court of Ohio has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and
‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v.
Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v.
Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the syllabus. Unlike our
review of the sufficiency of the evidence, an appellate court’s function when
reviewing the weight of the evidence is to determine whether the greater amount of
credible evidence supports the verdict. Thompkins, supra, at 387. In reviewing
whether the trial court’s judgment was against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. Id. In doing so, this Court must review the entire record, weigh the
evidence and all of the reasonable inferences, consider the credibility of witnesses,
and determine whether in resolving conflicts in the evidence, the factfinder “clearly
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Case Nos. 13-15-39, 13-15-40
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” Thompkins at 387.
Domestic Violence and Abduction
{¶74} In arguing that his convictions for Domestic Violence and Abduction
were against the manifest weight of the evidence, Plott contends that the actual
victim of these crimes, Mele, was unable to provide any testimony that Plott actually
struck her or choked her. He also argues that Lieutenant Windsor’s testimony
lacked specificity because the injuries to Mele’s neck were not measured and
compared to Plott’s hands, and Plott argues that he emphatically denied the
allegations in his testimony. Finally, Plott argues that even if the evidence was
sufficient to support the conclusion that Mele was a family or household member to
an extent that would satisfy R.C. 2919.25, the determination that Mele was a family
or household member was against the weight of the evidence.
{¶75} Contrary to Plott’s arguments, we cannot find that his convictions for
Domestic Violence and Abduction were against the manifest weight of the evidence.
Although Plott disputed that Mele was his fiancé, Mele testified that she was his
fiancé and it was not disputed that they lived together. This evidence certainly
supports the finding that Mele was a family or household member and we cannot
find that such a determination is against the weight of the evidence.
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{¶76} As to the incident in question, K.D. specifically testified that she
personally witnessed Plott choking and striking Mele. In addition, the State
presented the testimony of a strangulation expert, who testified to a reasonable
degree of scientific certainty that the marks on Mele’s neck were consistent with
strangulation. Photographs of the marks on Mele’s neck were introduced into
evidence for the jury to observe and evaluate. State’s Exs. 6, 7.
{¶77} K.D.’s version of events was corroborated, in part, by a friend of
Mele’s, Jody Noon, who testified that she was with Mele and Plott at the Eagles on
July 6, 2013. Noon testified that Plott was told to leave the bar because he was
getting loud. Noon testified that before Mele went back to her residence with Plott
that evening Noon did not observe any marks on Mele’s neck. Noon testified that
Mele then called her later in the evening, “crying and upset,” stating that Mele
needed a ride from Plott’s residence because Plott had “hurt her,” and that it was
“urgen[t].” Trial Tr., p. 241. When Noon picked up Mele, she noticed the marks
on Mele’s neck that she had not seen earlier that night. All of this evidence is
consistent with K.D.’s testimony that Plott was violent with Mele at Plott’s
residence that evening.
{¶78} Notably, Mele’s testimony never contradicted K.D.’s eyewitness
testimony related to the Abduction and Domestic Violence charges. Mele testified
numerous times that she did not remember how she got the marks on her neck, and
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that it was possible that Plott caused the injuries, she just claims she could not recall.
The jury was free to find Mele’s testimony not to be credible, particularly given
Noon’s testimony that the injuries to Mele were not present earlier in the night.
{¶79} Finally, as the testimony relates to these charges, the jury in this case
was able to see and hear the testimony of Plott himself, who testified that he did not
commit any of the acts he was charged with. The jury was able to evaluate his
credibility and the credibility of all witnesses involved and add those determinations
to the substantial evidence presented.5 Based on the evidence presented, we cannot
find that Plott’s convictions for Domestic Violence and Abduction were against the
manifest weight of the evidence.
Rape
{¶80} Rape, as it was charged in this case, is codified in R.C. 2907.02(A)(2),
and reads, “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.”
{¶81} Plott challenges his conviction for Rape on appeal by contending that
K.D.’s testimony was simply not credible, particularly in comparison to Plott’s story
that he had engaged in consensual sex with K.D.
{¶82} Contrary to Plott’s arguments, the testimony at trial was clear. K.D.
specifically testified that Plott raped her, indicating that Plott repeatedly came into
5
We note that Plott stipulated that he had two prior convictions for Domestic Violence, elevating his offense
to a third degree felony. Plott makes no arguments related to this on appeal.
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Case Nos. 13-15-39, 13-15-40
her room after Mele had left and attempted to get K.D. to engage in sexual acts with
him. K.D. testified that she told Plott “no” and that Plott climbed on top of her
anyway and engaged in sexual intercourse.
{¶83} Plott stipulated to the DNA evidence, which established that his semen
was found inside K.D. Photographs were taken of a number of bruises that K.D.
received and those pictures were entered into evidence. While Plott explicitly
denied the allegations, claiming that the sex was consensual, the jury believed that
Plott raped K.D. and convicted him of one count of rape.6
{¶84} Based on the evidence presented we cannot find that the jury clearly
lost its way or created a manifest miscarriage of justice in convicting Plott of one
count of Rape. Therefore, Plott’s eighth assignment of error is overruled.
Assignment of Error No. I
{¶85} In his first assignment of error, Plott argues that the State erred by
introducing testimony related to Plott’s pre-arrest silence as substantive evidence of
guilt. We disagree.
{¶86} The right of an accused to remain silent, enunciated in Miranda v.
Arizona, 384 U.S. 436 (1966), carries with it an implicit assurance that his silence
will not be used against him. Doyle v. Ohio, 426 U.S. 610, 618 (1976). “A
6
K.D. did claim that Plott raped her twice that evening and the jury only convicted Plott of one count of rape,
likely because in K.D.’s account of the events to the SANE, the SANE only wrote down one incident of
vaginal penetration.
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defendant’s decision to exercise his right to remain silent * * * is generally
inadmissible at trial either for purposes of impeachment or as substantive evidence
of guilt.” State v. Perez, 3d Dist. No. 4–03–49, 2004–Ohio–4007, ¶ 10, citing State
v. Leach, 102 Ohio St.3d 135, 2004–Ohio–2147. Use of a defendant’s silence in the
State’s case-in-chief puts a defendant in the position of having to choose between
allowing a jury to infer guilt from his silence or being forced to take the stand to
explain his prior silence, thereby surrendering his right not to testify. Perez, 2004–
Ohio–4007, at ¶ 20. However, the introduction of evidence regarding a defendant’s
decision to remain silent does not constitute reversible error if, based on the whole
record, the evidence was harmless beyond any reasonable doubt. State v.
Zimmerman, 18 Ohio St.3d 43, 45 (1985). The Ohio Supreme Court has held that
“[a] single comment by a police officer as to a suspect’s silence without any
suggestion that the jury infer guilt from the silence constitutes harmless error.” State
v. Treesh, 90 Ohio St.3d 460, 480, 2001–Ohio–4; see also State v. Roby, 3d Dist.
Putnam No. 12–09–09, 2010–Ohio–1498, ¶ 14.
{¶87} In this case, Plott specifically takes issue with the following
examination of Lieutenant Windsor.
Q [Prosecutor]: Did you have a chance to speak with the
Defendant, Raymond Plott, about this case?
A [Windsor]: I spoke with him over the phone on Monday, I
believe, July 8th.
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Q: And what did he tell you?
A: He said he was coming to turn himself in and that he wasn’t
going to talk to me without his attorney.
Trial Tr., p. 158. Plott’s counsel objected to this questioning, and that objection was
overruled.
{¶88} There was no further mention by Lieutenant Windsor of Plott’s
silence. Similarly, there was no further mention by the State.7
{¶89} Plott argues that the brief, preceding segment was improper and
significant enough to warrant reversal of this entire trial. In support, he cites this
Court’s decision in State v. Perez, 3d Dist. Defiance No. 4-03-49, 2004-Ohio-4007.
In Perez, this Court reversed a conviction where evidence of a defendant’s pre-arrest
silence was presented by the State and the defendant specifically took the stand to
explain why he had not spoken to the police. On its face Perez is patently
distinguishable from this case where there is no indication that Plott took the stand
to refute this single, isolated comment. Thus we do not find Perez persuasive here.
{¶90} Moreover, we would emphasize that this was a single, isolated
comment without any suggestion that the jury should infer guilt from it, thus making
it harmless under State v. Treesh, 90 Ohio St.3d 460, 480, 2001–Ohio–4. Therefore,
7
Notably, Plott’s counsel actually referenced this exchange in his closing argument, stating that Plott’s
actions in turning himself in did not seem to be those of a guilty man. “He submitted himself to a DNA
standard. Didn’t run. Didn’t hide. As you heard, I think he, I think the Lieutenant testified, he said he’d
come in. Doesn’t sound like something a guilty person would do.” Trial Tr., p. 569.
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we do not find Plott’s argument well-taken, and his first assignment of error is
overruled.
Assignment of Error No. III
{¶91} In Plott’s third assignment of error, he argues that the State improperly
introduced “expert” opinion testimony of Lieutenant Windsor. Plott does not cite
any specific instances of improper opinion testimony that he claims are actually
prejudicial in this case; rather, he summarily directs us to 18 pages of Lieutenant
Windsor’s testimony and sweepingly declares that the excerpt contains improper
opinion testimony. As Plott fails to direct us to any specific error we could overrule
Plott’s assignment of error for this reason alone. See App.R. 12; App.R. 16.
{¶92} Nevertheless, after reviewing the cited pages, we will assume that
Plott intends to direct us to Lieutenant Windsor’s testimony that “[v]ictims of
domestic violence are known to frequently recant their statements to protect their
abusers,” as it is the only readily apparent piece of testimony that seems to fit with
Plott’s argument. Trial Tr., at p. 152. Even extracting this testimony to make an
argument for Plott, there is no indication that Lieutenant Windsor was offering an
expert opinion on this issue and thus we cannot find it was erroneous. Lieutenant
Windsor was simply offering an opinion based on his nineteen years of experience
as a police officer and his interactions with domestic violence victims as to why he
was not surprised that Mele was uncooperative with the investigation.
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{¶93} It could perhaps be argued that at this point in the trial there did not
yet appear to be any particular basis to address how cooperative Mele had been with
the investigation since she had not yet testified, but Lieutenant Windsor was
certainly able to give an opinion based on his years of dealing with domestic
violence victims, particularly given that he was not offering an ultimate opinion that
the domestic violence did or did not happen. Furthermore, Lieutenant Windsor was
able to be cross-examined on this testimony, and he was, in fact, cross-examined on
this testimony. Trial Tr. p. 173.
{¶94} Finally, Plott directs us to no caselaw establishing how this testimony
was erroneous. However, even if Lieutenant Windsor’s testimony was erroneous at
the time it was entered, we cannot find that it was anything but harmless error in
this case. Therefore, Plott’s third assignment of error is overruled.
Fourth Assignment of Error
{¶95} In Plott’s fourth assignment of error, he argues that the State
improperly impeached Mele, the State’s own witness, with Mele’s prior out of court
statement. Specifically, he argues that the State improperly impeached Mele with
her statements to Lieutenant Windsor in her police interview without showing
“surprise” and “affirmative damage.” Plott contends that the State was aware
Mele’s testimony at trial was going to be different from her initial statement to
Lieutenant Windsor in the interview, thus the State could not be “surprised,” and
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any statements Mele made to Lieutenant Windsor in her interview were
inadmissible as impeachment evidence.
{¶96} “Evid.R. 607(A) authorizes a party to impeach its own witness ‘by
means of a prior inconsistent statement only upon a showing of surprise
and affirmative damage.’ ” State v. McKelton, --- Ohio St.3d ---, 2016-Ohio-5735,
¶ 119 (Ohio), reconsideration denied. “ ‘Surprise’ occurs when a witness’s
testimony materially differs from a prior statement and counsel had no reason to
believe that the witness would testify as he did at trial.” McKelton at ¶ 120, citing
State v. Davie, 80 Ohio St.3d 311, 323, 1997-Ohio-341. “The ‘affirmative damage’
requirement is satisfied if a ‘party’s own witness testifies to facts that contradict,
deny, or harm that party’s trial position.’ ” McKelton at ¶ 121, citing State v. Blair,
34 Ohio App.3d 6, 9 (8th Dist.1986). We review a trial court’s application of this
rule, and on evidentiary rulings in general, under an abuse of discretion standard.
McKelton at ¶ 119, citing State v. Davie, 80 Ohio St.3d 311, 323 (1997).
{¶97} In this case, after Mele took the stand, she was asked whether she
recalled her interview with Lieutenant Windsor. She indicated that she remembered
being present for the interview but she did not recall the conversation itself because
she was drunk during the interview. The prosecutor asked if showing her the
interview would refresh her recollection of it, and Mele testified that it probably
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would not. At that time the jury was excused and Mele was shown the video of her
interview.
{¶98} After the interview was played, the jury returned and the following
dialogue took place between the prosecutor and Mele.
[The Prosecutor]: Having viewed that video, does that refresh
your recollection regarding the statements you made to
Lieutenant Windsor at that interview?
[Mele]: I still don’t remember our interview, but seeing that, I
can’t, you know, I see it on tape. It’s in stone.
[The Prosecutor]: Okay. So are you indicting that, yes, it has
refreshed your recollection of the recorded interview you
conducted?
[Mele]: Kind of parts of it, yes.
[The Prosecutor]: Okay. Having seen that, do you remember
Lieutenant Windsor asking you how you got the marks on your
neck?
[Mele]: I don’t remember, I don’t remember the interview at all.
But you’re talking about on there?
[Defense Counsel]: Your Honor, can we approach?
[The Prosecutor]: Your Honor -- well, go ahead.
The Court: No, wait a second. Rephrase your question.
[The Prosecutor]: Do you remember Lieutenant - - did you see on
the video we just watched --
[Mele]: I seen [sic.]
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{¶99} The Prosecutor]: -- did you see Lieutenant Windsor ask you
how you - -
[Mele]: Yes.
[The Prosecutor]: -- got the marks on your neck?
[Defense Counsel]: Objection, Your Honor.
The Court: Overruled.
[The Prosecutor]: Okay. Just so we’re clear, you told Lieutenant
Windsor that [Plott] was responsible for the marks on your neck?
[Mele]: Yes.
[The Prosecutor]: Do you remember also telling Lieutenant
Windsor that that was because he was choking you?
[Mele]: Yes.
[The Prosecutor]: Do you remember telling Lieutenant Windsor
that he hit [K.D.]?
[Mele]: I seen [sic], I said that he hit her. And then I said, I
changed it and all I saw was shadows. I wasn’t sure if that mark
was from him or the night before.
[The Prosecutor]: Do you remember telling Lieutenant Windsor
that you saw bruises on her the following morning that were not
there yesterday?
[Mele]: Yes.
[The Prosecutor]: Okay.
[Mele]: No, I wasn’t -- I didn’t know if they weren’t there
yesterday because she was wearing - - I couldn’t see. She didn’t
show me - - she showed me the mark when she showed up to the
Eagles and dropped off my tweezers that I had.
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[The Prosecutor]: But you didn’t see the, you don’t remember
seeing - - you told Lieutenant Windsor you did not see the bruises
the previous day?
[Mele]: I didn’t see that day. Not that I remember.
[The Prosecutor]: Do you remember talking to Lieutenant
Windsor in the video and indicating a conversation you had with
[Plott] the following morning?
[Mele]: I asked him if he did it. If he, you know, she’s saying he
raped her or whatever.
[The Prosecutor]: Do you remember him telling you, I have
blackouts. I’m sorry. I didn’t mean to hurt you.
[Mele]: Yes.
***
[Defense Counsel]: Your Honor, I’m going to continue to object
to this line of questioning.
[The Court]: Overruled.
***
[The Prosecutor]: [Mele], do you remember sometime after this
incident on July 7th, do you remember approaching, approaching
[K.D.] and telling her you had a video?
[Mele]: Yes, because I didn’t believe her.
[The Prosecutor]: Okay. And what had you hoped to accomplish
by telling her that there was a video of what occurred in the, in
the home that night?
[Mele]: I would hope that she, you know, would admit that she
came on to him.
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Case Nos. 13-15-39, 13-15-40
[The Prosecutor]: Okay. But in reality when you did that, there
was no video recording of what happened the night before?
[Mele]: No.
[The Prosecutor]: So in that instance, you were lying in that
instance to K.D. about the video?
[Mele]: Yes.
[The Prosecutor]: And you were doing that to help [Plott]?
[Mele]: No. I was doing it for my sanity. For me. Because I
didn’t believe her.
[The Prosecutor]: Okay.
[Mele]: I would not believe that I was with a man that would do
that with someone.
[The Prosecutor]: Right. Nobody wants to believe that?
[Mele]: Right.
[The Prosecutor]: Right?
[Mele]: So it was all me, you know, doing that because I needed
to know the truth. Because of the things she was doing before
that, staying in my home.
***
[The Prosecutor]: So you didn’t go - - I just want to make sure
we’re clear. You’re testifying today that you don’t remember
anything that happened in the, the home that night between you
and [Plott] or you and [K.D.]?
[Mele]: I remember some things. Things that were said over and
over again.
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Case Nos. 13-15-39, 13-15-40
[The Prosecutor]: Uh-huh.
[Mele]: Like him questioning her. What did she do good in her
life. I remember that. I remember being on the floor because my
back was killing me. And I remember her sitting on the couch
giggling. And I was furious to like -- because I leave. That’s what
I do. If somebody gets in my face or bothers me, my thing is to
leave. That’s what I do. I’ve done it in past relationships. I don’t
like fighting. I don’t like anybody in my face yelling at me or
doing any, you know what I mean, breaking something. Don’t
like it.
[The Prosecutor]: Is that why you called [Noon], pleading with
her to come get you because [Plott] tried to hurt you?
[Mele]: No, I wanted to leave. I didn’t say -- I don’t know what I
said to her. I just wanted a ride out of there. I kept telling [K.D.],
please, let’s go. Let’s go. Let’s go. I don’t know how many times
I could ask her to go. So I couldn’t get in the car because I was
intoxicated, so I’m not going to get in the car and drive. But I had
no choice but to get [Noon] to come get me.
***
[The Prosecutor]: All right. Now, I want to make sure we’re clear
on your testimony today, [Mele].
[Mele]: Uh-huh.
[The Prosecutor]: We asked you about the marks on your neck.
And you’re testifying today that although you told Lieutenant
Windsor that those were a result of choking, [Plott] choking you,
today your testimony is that you don’t remember how you go
those marks on your neck?
[Mele]: I don’t remember. I know I had marks. I know I fell, so
I can’t say 100 percent he didn’t do it. I just know and then seeing
that, if I said that, then that’s what must have happened because
-- but I don’t remember. I can’t say yes and I can’t say no - -
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[The Prosecutor]: Okay.
[Mele]: -- if I don’t remember.
[The Prosecutor]: Okay. But you’re acknowledging that if you
said that to Lieutenant Windsor the very next afternoon, the very
next day, you’re acknowledging that that’s what must have
happened?
[Mele]: That’s what I’m -- yes. That’s what I’m thinking.
[The Prosecutor]: Talking about the choking and the marks on
your neck?
[Mele]: Right.
[The Prosecutor]: Okay. You mentioned being on the ground
and your back being in pain. Are you testifying that you don’t
remember how you got on the ground or how your back was in
pain?
[Mele]: I was walking in the door and there’s a little like lip on it.
I’m not sure, I must have, foot kicked it and hit the door jamb
because I think he was trying to probably get in behind me and
he wanted the keys. And I remember just throwing them towards
[K.D.] Because I probably didn’t want him to have it because he
would get in the car and probably go. Which maybe I should have
let him, but --
Id. at p. 410-417.
{¶100} An additional relevant dialogue was held on re-direct.
[The Prosecutor]: [Mele], you said [Plott], he did not make you
beg to live?
[Mele]: No. I don’t remember that.
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[The Prosecutor]: In fact, it was him making [K.D.], he was
asking her a bunch of questions?
[Mele]: I remember it was all towards her.
[The Prosecutor]: Okay. Those kinds of questions why - -
[Mele]: Yeah. All those kinds of questions.
[The Prosecutor]: Okay. About why she should live?
[Mele]: The only thing I remember is him saying what did you do
good in your life. That’s all I remember because it was, over and
over and over and over and over again.
[The Prosecutor]: And when he was saying that to her, was he
talking like you and I are? Was he raising his voice? Was he
whispering?
[Mele]: I don’t remember exactly his tone at that point. I
remember the question, it was like a question, it was just like a
normal question being asked, so I don’t think it was kind of like a
violent way.
[The Prosecutor]: You testified that, again, you needed to leave.
You felt that on that night you needed to get out of that home?
[Mele]: Uh-huh.
[The Prosecutor]: And is it fair to say that the reason you needed
to get out of [the residence] is because of the violence?
[Mele]: Because of the way he acts. The way he was acting. To
me that’s ridiculous. You know what I mean? I don’t deal with
that. I’m going to go and I’m going to let him sleep it off, relax,
whatever. And I’m going to go out and get out of there. That’s
all. It’s like basically punishment to him. I, I leave.
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[The Prosecutor]: So you didn’t leave the house - - are you
testifying that you did not leave the house because you were
strangled earlier in the evening?
[Mele]: No. Because I have left the house before when he yells at
me.
[The Prosecutor]: Okay. So are you saying now that you were not
strangled?
[Mele]: Oh, I don’t know. I don’t remember being strangled, but
I’m saying from what I see in the video and from what I said, I
believe I was if I said it.
[The Prosecutor]: Okay.
[Mele]: Like I said, I can’t tell you 100 percent. I’m not, you know
what I mean? I can’t remember.
[The Prosecutor]: Right. But on the conversation with you, the
conversation you had with Lieutenant Windsor, you were - - you
saw that interview and now you remember that interview. You
weren’t indicating to Lieutenant Windsor you were having issues
remembering anything?
[Mele]: What do you mean? I don’t remember - - I seen [sic] the
video. I’m seeing what I see. What I said.
[The Prosecutor]: Right.
[Mele]: So I’m taking a chance of believing what I see and what I
said.
[The Prosecutor]: And - -
[Mele]: I can’t - - oh, I’m sorry.
[The Prosecutor]: No, go ahead.
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[Mele]: * * * If I said he choked me, then it probably happened.
So I can’t guarantee you. Because then I would be lying saying
yes, he did do it when I don’t know if he did it. I can’t say he did
it. I can’t say he didn’t. But my testimony there shows because it
seems like that’s what I said. And I did have the marks on my
neck.
[The Prosecutor]: And on that July 7th interview, you weren’t
making any qualifying statements to Lieutenant Windsor about it
may have happened or I may not remember. You were telling
him on that date definitively what happened?
[Mele] Yeah. I seen [sic] that.
Id. at p. 429-432.
{¶101} Plott argues on appeal that the preceding testimony constitutes the
State introducing improper impeachment evidence of its own witness as the State
was aware that Mele would not be testifying that she remembered Plott harming her
like she had stated in her interview with Lieutenant Windsor. Plott argues that the
State could not show “surprise,” and therefore could not impeach its own witness
with prior inconsistent statements from the interview.
{¶102} At the outset, we note that the preceding questioning and testimony
indicates that while Mele initially claimed that she did not remember her interview
or the pivotal details of the night in question, she also, on numerous occasions, and
with regard to other specific statements and incidents, testified that her memory had
in fact been refreshed or at least that after viewing the video she did in fact remember
and acknowledge the reality of significant parts of the incident, to which she gave
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testimony. This indicates that some of the testimony provided by Mele was from
her own memory and did not contain impeachment by prior inconsistent statements
at all.
{¶103} Nevertheless, the State is permitted to lay a necessary foundation for
introducing a prior statement in order to attempt to demonstrate surprise and
affirmative damage. “In order to introduce a witness’s prior inconsistent statement
a proper foundation must be laid, which is accomplished when a witness denies
making the prior statement.” State v. Wilbon, 8th Dist. Cuyahoga No. 82934, 2004-
Ohio-1784, ¶ 26, citing State v. Soke, 105 Ohio App.3d 226 (8th Dist.1995), citing
State v. Riggins, 35 Ohio App.3d 1 (8th Dist. 1986). “Further, when a witness claims
a lack of memory regarding the events described in a prior statement, the prior
statement is considered inconsistent and is therefore admissible.” Id, citing State v.
Portis, 10th Dist. Franklin No. 01AP-1458, 2002-Ohio-4501.
{¶104} Here, the State would certainly be permitted to ask a number of
foundational questions as to what Mele remembered, if she remembered talking to
the police, and if she remembered the incident, and then attempt to refresh her
recollection related to those things. The State could then question her once that
attempt had been made to see if she then remembered the incident or making any
statements before ever using any specific statements themselves.
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{¶105} However, in this case, once the State had asked its foundational
questions, to the extent that Mele claimed that she “did not remember” there may
have been some impeachment or hearsay questions that were improperly asked by
the State without establishing the requisite showing of surprise. Nevertheless,
Mele’s testimony is, at best, merely equivocal as to what she did and did not
remember both before and after attempting to refresh her recollection.8
{¶106} Moreover, even if we were to assume that this entire line of
questioning was improper either as improper impeachment of the State’s own
witness or improper hearsay, we cannot find that it was anything but harmless in
this case. Mele was not present for the rape of K.D. and she provided no testimony
related to the elements of that offense. Thus there could be no impact at all of this
testimony on the Rape conviction.
{¶107} As to the Domestic Violence and Abduction charges related to Mele,
the primary testimony regarding those charges was provided by K.D., who
witnessed them. K.D.’s testimony was then corroborated in part by Noon and the
strangulation expert. The jury was able to see photos of the injuries on Mele’s neck
and weigh Plott’s credibility as to his denials. At best Mele was only able to say
that she did not remember what happened and it was possible Plott caused the
injuries but she also claimed it was possible the injuries were from a fall the night
8
It should be noted that Mele’s interview with Lieutenant Windsor was never shown to the jury, Mele was
simply asked about some statements she made therein.
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Case Nos. 13-15-39, 13-15-40
prior. Thus we cannot find that the testimony was anything but harmless error. This
is not a situation where absent the victim’s testimony there was no other evidence
to convict Plott. There was a witness to the act present whose testimony was
corroborated in part by multiple sources. Therefore Plott’s fourth assignment of
error is overruled.
Assignment of Error No. V
{¶108} In Plott’s fifth assignment of error, he argues that the trial court
improperly permitted Ruth Downing to testify as a strangulation expert in
contravention of Evid.R. 702. Specifically, he contends that Downing’s testimony
was unreliable as it related to strangulation because, (1) strangulation was a
“relatively new area;” (2) Downing’s “methodology” had not been peer-reviewed;
(3) there was no known error rate; and (4) there was no indication that Downing’s
“methodology” had gained general acceptance. Appt.’s Br. at p. 19.
{¶109} Evidence Rule 702 governs the admissibility of expert testimony. It
reads,
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;
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(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.
{¶110} In determining whether the opinion of an expert witness is reliable
under Evid.R. 702(C), a trial court, acting as a gatekeeper, examines whether the
expert’s conclusion is based on scientifically valid principles and methods.
Valentine v. Conrad, 110 Ohio St.3d 42, 2006–Ohio–3561, ¶ 16, citing Miller v.
Bike Athletic Co., 80 Ohio St.3d 607 (1998). “In evaluating the reliability of
scientific evidence, several factors are to be considered: (1) whether the theory or
technique has been tested, (2) whether it has been subject to peer review, (3) whether
there is a known or potential rate of error, and (4) whether the methodology has
gained general acceptance.” Miller at 611, citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593–94, 113 St. Ct. 2786 (1993).
{¶111} Although these factors may aid in determining reliability, none of the
factors are dispositive as the inquiry is flexible. Id., citing Daubert at 594.
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Ultimately, the focus is “solely on principles and methodology, not on the
conclusions that they generate.” Daubert at 595. However, “[w]hen performing
[the preceding] analysis, we are mindful that ‘courts should favor the admissibility
of expert testimony whenever it is relevant and the criteria of Evid.R. 702 are met.’
” State v. Ream, 3d Dist. Allen No. 1-12-39, 2013-Ohio-4319, ¶ 76, quoting State
v. Nemeth, 82 Ohio St.3d 202, 207 (1998).
{¶112} In this case, Ruth Downing testified that she was a family nurse
practitioner and a forensic nurse. She testified that she had been a registered nurse
for 39 years, that she had received a “Bachelor of Science and Nursing” from
Otterbein University, that she received a Master of Science in Nursing in 2006 and
had received a post-master certificate as a family nurse practitioner. She testified
that she was also trained as a Sexual Assault Nurse Examiner and was a member of
a number of professional organizations. She also testified that she founded an
educational consultation business called Forensic Healthcare Consulting.
{¶113} Downing then provided her training specifically related to domestic
violence and strangulation, which included over 50 “trainings” on those issues.
Downing testified that she taught a number of classes on the issues. She testified
that she had reviewed approximately 40 to 50 cases on strangulation and thousands
of victims of violence. She testified that she had provided testimony on the issue of
strangulation five times in a number of courts all over the United States.
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Case Nos. 13-15-39, 13-15-40
{¶114} The State then moved to have Downing declared an expert in the
effects and identification of strangulation. At that time, the court allowed defense
counsel to conduct voir dire of Downing. Defense counsel asked whether she had
ever been peer reviewed for articles and publications, and she stated that she had.
She testified as to how she would identify if someone had been strangled, and she
testified that she had a standardized methodology that was based on standard
practices in the industry. She testified that some of her methods were subjective but
“a lot of it is based on the current research that we have from a variety of
disciplines.” Trial Tr., p. 441.
{¶115} After defense counsel’s voir dire, Downing was classified as an
expert in the effects and identification of strangulation without any objection by
defense counsel.
{¶116} On appeal, it does not appear that Plott takes issue with anything
related to Evid.R. 702(A) or (B).9 Plott appears to focus his argument on Evid.R.
702(C), claiming that there was not enough indicia of reliability associated with
Downing’s testimony related to identifying strangulation.
{¶117} Contrary to Plott’s arguments, Downing clearly testified that her
work was accepted, that she had a standardized methodology and that she discussed
9
Nevertheless, even if he had challenged these issues we could not find that the trial court erred in
determining that Downing was qualified to provide expert testimony and that her testimony related to matters
beyond the knowledge or experience possessed by lay persons.
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Case Nos. 13-15-39, 13-15-40
issues with her peers. She testified that she did not know that there was anything
set up right now for [peer review] of strangulation in particular. It’s a relatively new
area of inquiry in the health care profession.” Trial Tr., at p. 441. There was no
indication that a specific “experiment” was done in this case and Downing clearly
testified as to what she considered and how she reached her conclusion to a
reasonable degree of scientific certainty that Mele had been strangled. That
conclusion was fully subject to cross-examination. Based on the evidence presented
we cannot find that the trial court erred in permitting Downing’s testimony as an
expert witness. Therefore, Plott’s fifth assignment of error is overruled.
Assignment of Error No. VI
{¶118} In Plott’s sixth assignment of error he argues that the trial court
improperly interjected its opinion that defense counsel was dishonest. We disagree.
{¶119} While the rape victim, K.D., was being cross-examined in this case,
Plott’s counsel asked her why she did not leave the residence and why she did not
lock Plott out of her room. K.D. testified that there was no lock on her bedroom
door. The following exchange then occurred.
Q [Defense Counsel]: If other people have testified that there’s a
lock on that door, if Lieutenant Windsor testified to that, would
that be a mistake?
[Prosecutor]: Objection. I don’t know that Lieutenant Windsor
testified to that.
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THE COURT: Sustained. [Defense Counsel], you are making
things up, perhaps. I’m going to go off the record and meet
counsel in chambers.
(The Court and Counsel had a conference in chambers and
reviewed prior testimony.)
THE COURT: Ladies and gentlemen, I apologize for the delays.
This Court does allow Counsel to take testimony, either Counsel,
and change it in forming questions. So we wanted to be sure what
was said so that the questions are proper. And in this case, I
wanted to be sure what was said about doors locked and unlocked.
All right. And whether there are locks or not locks on them, I
don’t mean to imply that Counsel is doing anything wrong, either
Counsel. I just want to be sure that when a question is asked of a
witness, any witness, that there is some foundation for that
question.
So we have taken care of that and, [Defense Counsel], you
may proceed.
Trial Tr., p. 332-333.
{¶120} Plott argues on appeal that the preceding interjection by the trial court
that Plott’s counsel was “making things up, perhaps,” showed that the court was
biased against Plott and his attorney. To support his claim, Plott cites State v. Dean,
127 Ohio St.3d 140, 2010-Ohio-5070, for the proposition that a criminal trial before
a biased judge is fundamentally unfair and denies a defendant due process. Dean at
¶ 48. In Dean, “the trial court made accusatory and threatening comments toward
counsel during trial and denied counsel reasonable opportunities to consult with the
defendant.” State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 81, citing
Dean at ¶¶ 51, 53. The trial court also suggested that counsel had manipulated,
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Case Nos. 13-15-39, 13-15-40
defrauded and deceived the court in attempting to disqualify the judge from sitting
on the trial. The Supreme Court of Ohio determined that the judge had “deep-
seated bias against counsel” throughout the entire trial, which actually led to the
defendant seeking to represent himself in the proceedings. Dean at ¶ 66.
{¶121} First, the circumstances present in Dean are readily distinguishable
from this case. Here, there was a single isolated comment and the comment in no
way led to Plott seeking to represent himself. Thus Dean is hardly relevant and
certainly does not compel a different result here. Second, the trial court’s statement
that defense counsel was “perhaps” making up facts was technically correct. A
review of Lieutenant Windsor’s testimony shows that Lieutenant Windsor never did
testify that K.D.’s room had a lock on it; rather, Lieutenant Windsor testified that
he could not “recall if they do or not.” Trial Tr., p. 172.
{¶122} Third, as soon as the proceedings reconvened after the parties and the
trial court reviewed the prior testimony, the trial court explicitly stated to the jury
that it did not mean to imply that defense counsel was doing anything wrong,
alleviating any appearance of bias. Fourth, and finally, the trial court later instructed
the jury that if it “said or did anything which you consider an indication of my view
on the facts, you are instructed to disregard it. The Judge must be, and sincerely
desires to be, impartial in presiding over this and every other trial[.] * * * The Court
does not have the right, does not desire to invade the province of the jury by
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Case Nos. 13-15-39, 13-15-40
indicating in any way a preference between the State of Ohio and the Defendant.”
Trial Tr., p. 595-596. “A jury is presumed to follow the instructions, including
curative instructions, given it by a trial judge.” State v. Garner, 74 Ohio St.3d 49,
59, 1995-Ohio-168.
{¶123} Given that what the trial court said was technically correct, and given
that corrective measures were taken, we cannot find any error here. Therefore,
Plott’s sixth assignment of error is overruled.
Assignments of Error Nos. IX and X
{¶124} In his ninth and tenth assignments of error, Plott argues that the State
committed prosecutorial misconduct. In his ninth assignment of error he argues that
the prosecutor committed misconduct “when it introduced testimony relating to
[Plott’s] pre-arrest silence,” which was discussed in the first assignment of error.
Appt.’s Br., p. 14. In his tenth assignment of error, Plott argues that the State
committed prosecutorial misconduct during closing arguments.
{¶125} “In reviewing claims of prosecutorial misconduct, the test is whether
the prosecutor’s remarks were improper and, if so, whether those comments
prejudicially affected the substantial rights of the defendant.” State v. Stober, 3d
Dist. Putnam No. 12-13-09, 2014-Ohio-1568, ¶ 131, appeal not allowed, 140 Ohio
St.3d 1438, 2014-Ohio-4160, and appeal not allowed, 146 Ohio St.3d 1472, 2016-
Ohio-5108, citing State v. Jones, 90 Ohio St.3d 403, 420 (2000). “In making this
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Case Nos. 13-15-39, 13-15-40
determination, an appellate court should consider several factors: (1) the nature of
the remarks, (2) whether an objection was made by counsel, (3) whether corrective
instructions were given by the court, and (4) the strength of the evidence against the
defendant.” State v. Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995). “The
touchstone of analysis ‘is the fairness of the trial, not the culpability of the
prosecutor.’ ” State v. Underwood, 73 Ohio App.3d 834, 840-841 (4th Dist.1991),
quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940 (1982).
{¶126} Prosecutorial misconduct is generally not grounds for reversal unless
it so taints the proceedings as to deprive the defendant of a fair trial. State v. Johns,
3d. Dist. Seneca Nos. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25. Where
it is clear beyond a reasonable doubt that the jury would have found the defendant
guilty, even absent the alleged misconduct, the defendant has not been prejudiced,
and his conviction will not be reversed. See State v. Underwood, 2d Dist.
Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of
prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d
Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright,
477 U.S. 168, 106 S.Ct. 2464 (1986).
{¶127} Furthermore, as to prosecutorial misconduct allegations related to
closing arguments, “[p]arties have wide latitude in their closing statements,
particularly ‘latitude as to what the evidence has shown and what inferences can be
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Case Nos. 13-15-39, 13-15-40
drawn from the evidence.’ ” State v. Wolff, 7th Dist. Mahoning No. 07MA166,
2009-Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-
6266, at ¶ 213. A prosecutor may comment upon the testimony of witnesses and
suggest the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-
Ohio-18, ¶ 116.
{¶128} In this case, Plott first contends that the prosecutor committed
misconduct by introducing testimony related to Plott’s pre-arrest silence. Plott
makes essentially the same argument that he made in the first assignment of error
as support for his contention. As we found no prejudicial error in the first
assignment of error in introducing the brief, isolated statement by Plott that he was
turning himself in but would not speak to authorities without an attorney, we
similarly can find no prosecutorial misconduct rising to a prejudicial level here.
Therefore, Plott’s ninth assignment of error is overruled.
{¶129} Next, Plott contends that there were five references in closing
arguments wherein the prosecutor committed misconduct by “denigrat[ing]”
defense counsel. All five references were in the State’s rebuttal closing arguments.
They read as follows.
[1]10 So Defense Counsel is trying to make you speculate about
things. Well, he must not be guilty because we have a DNA
sample.
10
The numbers were not in the transcript, they are inserted for ease of reference.
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Case Nos. 13-15-39, 13-15-40
Trial Tr., p. 584.
[2] Now, Defense Counsel, as we know, he’s not purporting to be
a strangulation expert, is he? We only heard in this case from one
strangulation expert. Now, the strangulation expert did look at
these photos and say, oh, well, there’s not a clear, this doesn’t look
exactly like a clear hand print. Ladies and gentlemen, nobody
expects a full hand print to be on there. She didn’t dismiss these.
So when Defense Counsel asks you to do that, not being a
strangulation expert, I ask you to disregard that…rely on the
testimony of the expert. Not Defense Counsel’s expectations of
what a, a strangulation victim should look like.
Id. at 584-85.
[3] Also, Defense Counsel said [K.D.] had reluctance answering
questions. Now, you were all here. Did it appear that she was
reluctant answering questions because she says uh-huh instead of
yes? Everybody knows what that means. Everybody in this
courtroom knows that’s an affirmative answer. It’s only Defense
Counsel, excuse me. For the record. I’m sorry. He knows it’s
difficult to sit here and talk about that kind of thing. You saw the
emotion in her voice. So he’s trying to get under her skin. So we
are going to disregard what she said because she didn’t verbalize
yes instead of uh-huh? Does that mean she’s reluctant to answer
questions, ladies and gentlemen? That’s Defense Counsel trying
to create an issue that doesn’t exist.
Id. at 585-86.
[4] But at the end of the day, what Defense Counsel is attempting
to suggest to you all is that because she didn’t hop out a window
or because she grabbed a pair of tweezers, that means that this
whole thing didn’t happen. Ladies and gentlemen, there’s not a
rule book * * * that sexual assault victims are required to follow.
Id. at 591.
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[5] All sexual assault victims react differently. * * * So I’d ask
you not to discard her testimony because she didn’t follow the
arbitrary set of rules Defense Counsel has placed on her.
Id.
{¶130} After reviewing the closing arguments as a whole, and more
specifically the cited portions by Plott on appeal, we can find no error here, let alone
error that would rise to the level of prosecutorial misconduct. All of the prosecutor’s
statements were made in rebuttal closing argument in response to arguments made
by defense counsel in his closing arguments. Numbers 1 and 2 were in response to
defense counsel stating that bruising on Mele’s neck in one of the pictures did “not
look like somebody’s hand.” Id. at 578. Number three above was in reference to
defense counsel’s statement that K.D. “had reluctance answering questions.” Id.
Numbers four and five above were statements made after defense counsel suggested
that K.D. was not acting as someone who had been sexually assaulted might because
she did not “run out the door[.]” Id. at 577.
{¶131} Thus all of the preceding statements were directly in response to
arguments made by defense counsel, which is permissible in closing arguments.
There is nothing in the preceding statements that “denigrates” defense counsel;
rather, the prosecutor suggests that the arguments and conclusions that defense
counsel made in closing argument were not supported by the evidence presented.
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We can find no error here, let alone prejudicial error. Therefore, Plott’s tenth
assignment of error is overruled.
{¶132} For the foregoing reasons Plott’s first, second, third, fourth, fifth,
sixth, seventh, eighth, ninth, and tenth assignments of error are overruled and the
judgments of the Seneca County Common Pleas Court are affirmed.
Judgments Affirmed
WILLAMOWSKI, J., concurs.
/jlr
ROGERS, J., dissents.
{¶133} I must respectfully dissent from the majority’s conclusions in
Assignment of Error No. IV.
{¶134} Plott takes issue with the Prosecutor asking Mele questions about
what she told Lieutenant Windsor during her interview. While Plott claims that the
State improperly impeached its own witness under Evid.R. 607(A), a quick review
of the record reveals that the Prosecutor was not asking these questions to impeach
Mele’s credibility but to elicit substantive evidence of Plott’s guilt. Either way,
however, Mele’s testimony was improper.
{¶135} Early into trial, the issue of Mele testifying was discussed:
[Defense Counsel]: The second item, Your Honor, it sounds as
though from the Prosecution’s opening statement, it sounds as if the
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Prosecution is on notice that their alleged victim, [Mele], will come
in here and either deny that the events transpired or that she just
simply doesn’t remember. Since they’re going to be calling this
witness on direct, I would move the Court for an instruction of 607,
Impeachment, 607(A) that no party may impeach their own witness
either through testimony of other witnesses or through documentation
or audio or recording unless they can show surprise and prejudice.
And here, I don’t think there’s any mistake that there will be no
surprise that she’s going to testify contrary to the facts contained in
the indictment.
The Court: Mr. Boos?
[The Prosecutor]: No, Your Honor. We’re certainly not surprised in
this case. She testified at a prior hearing as to that fact. But we’ve not
indicated that we intend to call her as a witness. I believe defense
counsel indicated he may utilize her. We may ask the Court, we may
at a later time, depending on how the trial goes, utilize 614(A) but
that’s not something where we’re at at this time. * * * .
The Court: Let’s take it up at the appropriate time, which you’re not
planning at this time to call?
[The Prosecutor]: That State will not be calling [Mele] as a witness.
Trial Tr., p. 142-143.
{¶136} The State changed its mind, however, after the trial court declined to
call her as a witness and indicated that her testimony was necessary to avoid
Confrontation Clause issues.
{¶137} When Mele took the stand, the Prosecutor began by asking her about
her interview with Lieutenant Windsor. Mele denied any recollection of the
interview. The Prosecutor asked her if showing her the interview would refresh her
recollection. Mele indicated that it may, and the Prosecutor showed her the
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interview outside the presence of the jury. Afterwards, the jury returned, and the
Prosecutor asked Mele whether her recollection had been refreshed. Mele replied,
“I still don’t remember our interview, but seeing that, I can’t, you know, I see it on
tape. It’s in stone.” Trial Tr., p. 410. Over Plott’s objection, the Prosecutor
continued asking Mele about what she told Lieutenant Windsor during her
interview. Mele answered the Prosecutor’s questions but indicated that her
testimony was based on what she had just heard herself say in the video.
{¶138} Evid.R. 612 permits a party to use a writing to refresh a witness's
recollection. “Before using a recording to refresh a witness's recollection, it must
first be established that the witness cannot currently recall the events or information
recorded.” State v. Fair, 2nd Dist. Montgomery No. 24388, 2011-Ohio-4454, ¶ 59,
citing State v. Gunn, 2nd Dist. Montgomery No. 16617, 1998 WL 453845 (Aug. 7,
1998). “When a videotape exists of the statements, the correct procedure is to allow
the witness to view the recording outside the presence of the jury, thereby having
his recollection refreshed; the witness may then testify based upon his or her own
present knowledge.” Id. If the recording does not refresh the witness’s recollection,
then the further inquiry as to matters discussed in the recorded statement is
prohibited. See Evid.R. 602 (A witness may not testify to a matter unless the witness
has personal knowledge of it). The recording “used to refresh the witness's
recollection is not admitted into evidence unless admission is requested by the
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adverse party, and in any event has no substantive evidentiary significance.” City
of Dayton v. Combs, 94 Ohio App.3d 291, 298 (2d Dist.1993).
{¶139} Mele’s recollection of her interview with Lieutenant Windsor was
not refreshed after viewing the video. Afterwards, Mele indicated that she still “did
not remember the interview at all.” Trial Tr., p. 410. Throughout the course of her
testimony, Mele indicated numerous times that she was basing her testimony on
what she had just heard herself say in the video—not what she independently
recalled. This kind of testimony is improper under Evid.R. 612 and 602.
{¶140} Further, even if, arguendo, Mele’s recollection of her interview with
Lieutenant Windsor had been refreshed, she was testifying to what she told
Lieutenant Windsor in her interview (i.e., out of court statements), and the State was
offering her statements to prove that Plott assaulted her on the evening of July 6,
2013 (i.e, the truth of the matter asserted). Indeed, the Prosecutor asked Mele, “But
you’re acknowledging that if you said [that the marks on your neck were a result of
Plott choking you] to Lieutenant Windsor the very next afternoon, the very next day,
you’re acknowledging that that’s what must have happened?” Id. at p. 416-417.
Mele’s testimony is textbook hearsay and inadmissible under the Rules of Evidence.
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); Evid.R. 802 (Hearsay is inadmissible, unless it falls within an exception).
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{¶141} The majority glosses over these important evidentiary issues and
quickly concludes that any perceived error was harmless. “Under Evid.R. 103(A)
and Crim.R. 52(A), we disregard as harmless the admission of improper hearsay
evidence unless a substantial right of the party is affected.” State v. Missler, 3d Dist.
Hardin No. 6–14–06, 2015–Ohio–1076, ¶ 60, citing State v. Richcreek, 196 Ohio
App.3d 505, 2011–Ohio–4686, ¶ 31 (6th Dist.). Substantial rights are not affected
“where the remaining evidence constitutes overwhelming proof of a defendant's
guilt * * *.” State v. Jones, 3d Dist. Van Wert No. 15–11–16, 2012–Ohio–5334, ¶
34, citing State v. Murphy, 91 Ohio St.3d 516, 555 (2001); see also State v.
Brown, 65 Ohio St.3d 483, 485 (1992) (harmless error exists if there is no reasonable
probability that the error affected the trial's outcome).
{¶142} Excluding Mele’s inadmissible testimony, the evidence supporting
Plott’s domestic violence and abduction convictions consisted primarily of K.D.’s
testimony that she saw Plott push, choke, and kick Mele inside the residence. Noon
testified that she picked Mele up from the residence that night after Mele called her
and said that Plott had hurt her. She testified that she observed marks on Mele’s
neck that she had not seen earlier that day, and Downing later testified that the marks
were consistent with a strangulation injury.
{¶143} However, Mele testified that she tripped on the lip of the door when
she walked into the residence that night. She stated that Plott did not push her,
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choke her, or punch her. As for the marks on her neck, Mele initially stated that she
believed she got them from an earlier fall. She later explained, “I know I had marks.
I know I fell, so I can’t say 100 percent he didn’t do it. * * * I can’t say yes and I
can’t say no - - * * * if I don’t remember.” Trial Tr., p. 416. She stated, however,
that she did not leave the residence that night because Plott hurt her. Plott also
denied harming Mele.
{¶144} I do not believe the remaining evidence constituted overwhelming
proof of Plott’s guilt, such that his substantial rights were not affected by Mele’s
inadmissible testimony. The majority states, “At best Mele was only able to say
that she did not remember what happened and it was possible Plott caused the
injuries but she also claimed it was possible the injures were from a fall the night
prior.” Majority Opinion, ¶ 107. But Mele’s inadmissible testimony included a
detailed account of what Plott allegedly did to her on the night in question and his
apparent confession.
{¶145} I also find it troubling that the Prosecutor asked the jury to focus on
Mele’s inadmissible testimony when considering whether Plott was guilty of
domestic violence and abduction. He stated,
But at the end of the day, ladies and gentlemen, I ask you to focus on
the statements that occurred prior to any of these charges being filed
against [Plott]. Those statements being, you need to come get me.
[Plott] hurt me. And also to Lieutenant Windsor. Remember, she
admitted, I told Lieutenant Windsor the day after the offense, yeah, he
choked me. Yeah, he caused those marks on my neck. In fact, she
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even had to sort of reluctantly acknowledge, well, if that’s what I said,
what I said happened, then it must have happened. But now that
[Plott] is facing a domestic violence conviction, she’s decided, well, I
don’t really remember anything.
Id. at p. 550.
{¶146} Further, I do not believe “there could be no impact at all of this
testimony on the Rape conviction” because “Mele was not present for the rape of
K.D. and she provided no testimony related to the elements of that offense.”
(Emphasis sic.) Majority Opinion, ¶ 106. Whether Plott sexually assaulted K.D.
turned on the issue of credibility. K.D. testified that Plott sexually assaulted her
twice at the residence and she was too afraid to leave the residence because she had
witnessed Plott assault Mele earlier that night. Plott testified, however, that he and
K.D. had consensual sex once. Homan’s testimony painted another scenario: that
K.D. had been sexually assaulted only once. Mele’s inadmissible testimony
bolstered K.D.’s credibility insofar as Mele essentially repeated K.D.’s version of
what happened prior to the alleged sexual assaults; at the same time, it cast serious
doubt on Plott’s credibility insofar as she testified to his apparent confession.
{¶147} Simply put, the State did not want to call Mele as a witness because
it believed that Mele’s testimony would cause more harm than good. After the trial
court refused to call Mele as a witness, the State had no choice but to put her on the
stand or face possible Confrontation Clause issues. When Mele denied recalling
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what she told Lieutenant Windsor about that night, the Prosecutor elicited improper
testimony under the guise of a refreshed recollection.
{¶148} Accordingly, I would sustain Plott’s fourth assignment of error and
reverse and remand the matter for a new trial on all three charges.
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