State v. Stites , 2020 Ohio 4281 ( 2020 )

[Cite as State v. Stites, 2020-Ohio-4281.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-190247
C-190255
Plaintiff-Appellee, : TRIAL NO. B-1803242-B
vs. :
ANGELA STITES, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 2, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Angela Glaser for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Angela Stites appeals her convictions for
complicity to sexual battery, complicity to rape, rape, gross sexual imposition, and
endangering children, for which the trial court sentenced her to 86 years in prison.
Stites’s convictions stem from evidence that she and her longtime partner, Herman
See, sexually abused their daughters and stepdaughters over a period of 16 years.
For the reasons that follow, we determine that the evidence presented at trial was
insufficient to sustain Stites’s conviction for rape as alleged in Count 27 of the
indictment. As to Stites’s remaining convictions, we overrule Stites’s assignments of
error and affirm the trial court’s judgment.
Factual Background
{¶2} Stites developed a relationship with Herman See in 1998. At the time
the two started their relationship, Stites had a daughter from a previous relationship,
E.M, and See had two children from his previous relationships, a son, Robert See,
and a daughter, S.J.S. Stites and See then had biological children together: two girls,
K.S. and W.S., and a boy. The blended family lived together in Colerain Township
and Norwood until November of 2017 when the Norwood Police Department
initiated an investigation into allegations that See had been raping his daughter, K.S.
K.S.’s allegations led to a broader investigation of sexual abuse by See and Stites as
well. As a result of the investigation, the state indicted See and Stites with a litany of
charges regarding not only K.S., but also K.S.’s two, older half-sisters, E.M. and S.J.S.
The matter proceeded to a jury trial in which See and Stites were tried together.
{¶3} At trial, K.S. recalled that the abuse by her father had begun sometime
around the age of six when they lived in Colerain Township. K.S. recalled a specific
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incident where she had performed fellatio on her father, and her father had
performed cunnilingus on her. K.S. remembered a time where See had made her
wear her mother’s green lingerie, and that See had used various sex toys on her. K.S.
recalled that See had performed cunnilingus on her the day of her seventh birthday
party in April of 2006.
{¶4} According to K.S., Stites knew about the sexual abuse, because Stites
“walked in” on See and K.S. engaged in sexual activity when K.S. was ten or 11 years
old. Stites would also “start fights” with K.S. and See on the days when Stites found
out about their sexual activities. K.S. further testified that she had overheard
conversations between See and Stites in which the two discussed See’s sexual
activities with K.S.
{¶5} The summer before K.S. started the sixth grade, sometime between
June 2010 and July 2010, K.S. recalled that See actually penetrated her with his
penis. K.S. remembered that the penetration had occurred on a white leather couch.
K.S. estimated that her father had sexual intercourse with her over 200 times after
that time. K.S. also recalled that when she had started dating her boyfriend,
sometime in December 2012, her father had sex with her.
{¶6} In April 2015, K.S., then 15, gave birth to a baby girl, and K.S.’s doctor
advised her to abstain from intercourse for a period of time. K.S. recalled that her
father had sex with her when her doctor permitted her to have sex again. K.S. also
recalled that her father had sex with her on her baby’s first Christmas Eve.
{¶7} In 2017, K.S. moved in with the father of her baby. Before she moved,
Stites asked K.S. how she felt about her father taking her virginity. K.S. said that it
was not until she told her boyfriend about the abuse that she realized what she had
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OHIO FIRST DISTRICT COURT OF APPEALS
experienced amounted to sexual abuse. Her boyfriend encouraged her to go to the
Norwood police.
{¶8} K.S.’s older stepsister, E.M. testified at trial regarding her abuse. E.M.
primarily resided with her biological father, Stites’s ex-husband, but E.M. visited the
See home regularly. E.M. testified that she recalled the abuse beginning around the
age of three or four. E.M. recalled See had inserted his fingers in her vagina and had
licked her vaginal area. E.M. also recalled a time around her fifth birthday where See
had made her perform oral sex on him. E.M. remembered S.J.S had been there as
well. After this incident, E.M. testified that the sexual abuse occurred regularly at the
See home.
{¶9} In late 2010, when E.M. was 14, See told her that he had heard she was
no longer a virgin. When E.M. responded in the affirmative, See had vaginal
intercourse with her. By E.M.’s estimate, See had sex with her between 20 and 50
times.
{¶10} According to E.M., Stites knew about the abuse as well. Stites told
E.M. that if she did not allow See to have sex with her, then she would never know a
“real man’s love.” E.M. also recalled a time in elementary school when Stites had
demonstrated oral sex by using a popsicle.
{¶11} E.M. testified that she could clearly recall the last time See had sex
with her: On January 1, 2012, E.M.’s friend had died the night before in a car
accident, and See had sex with her to “cheer her up.” E.M. then disclosed the abuse
to her biological father. Her father reported E.M.’s allegations to the Norwood
police. An investigation ensued, but the grand jury did not return an indictment.
E.M. testified that she had begun abusing drugs and her life spiraled out of control.
At the time of trial, E.M. was incarcerated.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} E.M.’s stepsister, S.J.S., the biological daughter of See and See’s ex-
wife, Dawn, also testified at trial regarding her abuse. S.J.S. testified that See and
Stites first abused her in 2001, when S.J.S. was eight years old. S.J.S. lived with her
mother at the time in Florida, but she came to Ohio to stay with her father for the
summer. One night, See came into S.J.S.’s bedroom and asked her if she wanted a
blue lollipop. S.J.S. said yes, and See told her that she could have it if she “gave him
oral sex.” S.J.S. and See walked to the family room and S.J.S. performed fellatio on
him. E.M. walked into the room during the encounter, and then E.M. also performed
fellatio on him. S.J.S. testified that See had tried to have sex with her, but he stopped
when S.J.S. told him it hurt. S.J.S. testified that Stites had been present during the
encounter, that Stites had licked her vagina, and that S.J.S. had licked Stites’s vagina.
See and Stites also encouraged S.J.S. and E.M. to put their fingers in each other’s
vaginas.
{¶13} At the end of the summer of 2001, S.J.S. told her mother what had
happened with See and Stites. Dawn testified at trial that she had called See and
then the Florida police after S.J.S.’s disclosure. The following day, See called S.J.S.
and told her that if she told the police what had happened, he would go to prison for
the rest of his life. As a result, S.J.S. told the police that the abuse had been a dream.
{¶14} The following year, the summer of 2002, S.J.S. came to Ohio again to
spend the summer with See and Stites. See began to have vaginal intercourse with
S.J.S. on a regular basis. Two or three times during the summer of 2002, Stites
made S.J.S. lick Stites’s vagina and then Stites would lick S.J.S.’s vagina. This abuse
continued each summer in 2003, 2004, and 2005. In 2005, S.J.S. cried while See
had sex with her, and S.J.S. told See that she did not want to have sex anymore.
S.J.S. never slept at See’s home again.
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{¶15} S.J.S. testified that the police had contacted her in 2012, after E.M.’s
disclosure. S.J.S. lied to police and told them that she had never experienced abuse.
S.J.S. testified that she had lied to police to protect See, but she regretted not coming
forward to support E.M.
{¶16} Several other family members, including See and Stites’s son and
daughter, W.S., testified that they had never witnessed any abuse, nor had they been
subjected to any abuse. Stites testified in her own defense and maintained that none
of the sexual incidents happened, and that each of the girls had a motivation to lie.
Stites testified that she and See had become the main caregivers for K.S.’s baby, and
that Stites had threatened to take custody of the baby away from K.S. According to
Stites, S.J.S. believed that Stites had been responsible for breaking up the marriage
with S.J.S’s biological father. Stites testified that she and See had kicked E.M. out of
their home because of E.M.’s drug use and behavior.
{¶17} At the conclusion of the evidence presented at trial, the jury found
Stites guilty of several crimes alleged to have occurred in the summer of 2001: four
counts of rape with respect to S.J.S. as alleged in Counts 20, 21, 27, and 28;
complicity to rape E.M. and S.J.S. as alleged in Counts 23 and 26; and gross sexual
imposition with regard to E.M. and S.J.S. as alleged in Count 24.
{¶18} The jury found that Stites was complicit to See’s rape of K.S., which the
jury found had occurred sometime between 2007 and 2012 as alleged in Count 38.
Also with respect to K.S., the jury found Stites guilty of two counts of endangering
children as alleged in Count 39 and Count 41. Finally, the jury found Stites guilty of
complicity to sexual battery with respect to E.M., which had occurred in early 2011 as
alleged in Count 15.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} The jury found Stites not guilty of two counts of complicity to sexual
battery with regard to E.M. and K.S., which had allegedly occurred in January 2012
and April 2015, as stated in Count 17 and Count 40.
{¶20} The trial court sentenced Stites to an aggregate sentence of 86 years in
prison. Stites’s appeal ensued.
Admission of Hearsay Statements
{¶21} In Stites’s first assignment of error, she argues that the trial court
erred in admitting several hearsay statements. Hearsay is a “statement, other than
one made by the declarant while testifying at trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Evid.R. 801(C).
{¶22} Stites argues that the trial court erred in admitting: (1) testimony from
E.M.’s stepmother that E.M. had told her that she had been “taught how to treat a
man the right way” in reference to See’s abuse; (2) testimony from a Hamilton
County Department of Job and Family Services caseworker that W.S. had appeared
to be protecting her parents in the aftermath of K.S.’s disclosure; and (3) testimony
from Stites’s mother that K.S. had told her that she had sex with See.
{¶23} With respect to these three statements, the record shows that the trial
court sustained defense counsel’s objections at trial. The trial court also admonished
the jury during final instructions that any statements or answers stricken by the
court could not be considered as evidence. We presume that the jury followed the
trial court’s curative instructions. State v. Fears, 86 Ohio St.3d 329, 334, 715 N.E.2d
136 (1999).
{¶24} Stites also argues that the trial court erred in admitting testimony
from E.M.’s biological father and S.J.S.’s biological mother recounting their
daughters’ abuse disclosures. E.M.’s father testified that in 2012, E.M. had told him
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OHIO FIRST DISTRICT COURT OF APPEALS
that See molested her, and Stites allowed the abuse to happen. Similarly, S.J.S.’s
biological mother, Dawn, recounted how S.J.S. had disclosed to her that See touched
her. Finally, Stites argues that the trial court erred in admitting testimony from
K.S.’s school counselor and K.S.’s boyfriend regarding statements that K.S. had made
to them. K.S.’s school counselor testified that K.S. had engaged in self-harming
behavior, and that K.S. had said she was “in a dark place.” K.S.’s boyfriend testified
that K.S. had disclosed the sexual abuse to him.
{¶25} We agree with Stites that these statements are hearsay. Nevertheless,
we determine that the admission of the hearsay statements was harmless beyond a
reasonable doubt. See Crim.R. 52(A); State v. Morris, 141 Ohio St.3d 399, 2014-
Ohio-5052, 24 N.E.3d 1153, ¶ 23. E.M., S.J.S., and K.S. all testified at trial in detail
regarding the sexual abuse they had endured. Even if we discard the hearsay
testimony of which Stites complains, the evidence that these women experienced
sexual abuse was overwhelming.
{¶26} Because we determine that the admission of the hearsay statements of
which Stites complains were either cured by the trial court’s sustained objections, or
constituted harmless error, we overrule the first assignment of error.
Evidence of Drug Use by Stites and the Victims’ Post-Rape Struggles
{¶27} In her second and third assignments of error, Stites argues that the
trial court erred in admitting evidence of her drug use.
{¶28} On direct examination, Stites testified that she and See had kicked
E.M. out of their home because of E.M.’s heroin use. E.M. then fabricated the abuse
allegations in retaliation. The state questioned Stites as to whether she had ever
smoked marijuana with E.M. The defense objected, and the trial court sustained the
objection. The state questioned Stites as to whether she had used marijuana or
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OHIO FIRST DISTRICT COURT OF APPEALS
heroin. When Stites denied using drugs, the state then used recordings of Stites’s jail
calls to impeach her. In the recording, Stites can be heard discussing her experience
with withdrawal after her arrest on the underlying charges in this case.
{¶29} Stites argues that the trial court erred in permitting the state to
impeach her with extrinsic evidence. Impeachment of a witness with a prior
inconsistent statement by extrinsic evidence is governed by Evid.R. 613(B), which
provides:
Extrinsic evidence of a prior inconsistent statement by a witness is
admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny
the statement and the opposite party is afforded an opportunity to
interrogate the witness on the statement or the interests of justice
otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action
other than the credibility of a witness * * *.
{¶30} Consistent with Evid.R. 613(B), Evid.R. 608(B) prohibits introduction
of extrinsic evidence of a witness’s misconduct “for the purpose of attacking or
supporting the witness’s character for truthfulness [.]”
{¶31} The state’s introduction of Stites’s drug use, including the recorded jail
calls where Stites discussed withdrawal, was not for the purpose of attacking her
character for truthfulness. Instead, Stites’s own drug use was directly relevant to her
defense that she had refused to tolerate E.M.’s drug use, thus leading E.M. to lie
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OHIO FIRST DISTRICT COURT OF APPEALS
about the rapes. If Stites herself used drugs, it would make her defense to E.M.’s
allegations much less plausible.
{¶32} Stites’s fourth assignment of error challenges the trial court’s
admission of “victim-impact evidence.”
{¶33} At trial, E.M. testified that she had a drug addiction, which had begun
in 2012 after the grand jury refused to indict See. E.M. eventually became addicted
to heroin. E.M.’s heroin addiction led her to steal from her grandparents, which
resulted in a felony-burglary conviction and prison sentence. K.S. also testified that
she had struggled emotionally and mentally in the aftermath of her abuse. K.S.’s
school counselor testified that K.S. had engaged in self-harming behavior and had
experienced struggles at school.
{¶34} Stites argues that the admission of evidence related to K.S.’s and
E.M.’s behavior was unfairly prejudicial. Logically, any evidence submitted by the
state is prejudicial to the defendant; however, the rules of evidence only bar evidence
that is unfairly prejudicial. State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550,
820 N.E.2d 302, ¶ 23; Evid.R. 403(A). “Unfairly prejudicial evidence usually appeals
to the jury’s emotions, rather than to intellect.” State v. Thompson, 141 Ohio St.3d
254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 112, citing Oberlin v. Akron Gen. Med. Ctr.,
91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001).
{¶35} The evidence related to E.M.’s drug abuse and K.S.’s mental and
emotional struggles was not unfairly prejudicial. The evidence was probative of
whether the women had been abused by their parents, or whether the abuse
allegations had been an elaborate lie to get back at their parents, as Stites suggested.
Thus, we determine that Stites’s argument regarding unfair prejudice is without
merit.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} Because we determine that the evidence related to Stites’s drug use
and the impact of the abuse on E.M. and K.S. was relevant and not unduly
prejudicial, we overrule assignments of error two through four.
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OHIO FIRST DISTRICT COURT OF APPEALS
Improper Vouching
{¶37} In her fifth assignment of error, Stites argues that the trial court erred
in allowing the prosecutor to improperly vouch for the victims during opening
statement and closing argument.
{¶38} Improper vouching occurs when a prosecutor espouses a personal
belief or opinion as to the credibility of a witness, or implies knowledge of facts
outside the trial record. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880
N.E.2d 31, ¶ 232, citing State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997),
and State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 117.
Improper vouching is reversible error unless it is “clear beyond a reasonable doubt
that, absent the prosecutor’s comments, the jury would have found defendant guilty.”
State v. Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984), citing United States v.
Hasting, 461 U.S. 499, 510-511, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).
{¶39} During opening statements, the prosecutor told the jury that the state
could have charged See and Stites with “thousands” of criminal charges, but that it
would have been impracticable to do so.
{¶40} The prosecutor’s comment that “thousands” of criminal charges could
have been brought did not imply that the prosecutor had knowledge of facts outside
the trial record. Although the prosecutor’s statement was hyperbolic, the victims
testified that they had endured sexual abuse on a regular basis for years, and it would
have been impracticable for the victims to recount each incident of abuse. Even if
the statement by the prosecutor had implied knowledge outside of the trial record,
the defense objected to the prosecutor’s statement, and the trial court immediately
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OHIO FIRST DISTRICT COURT OF APPEALS
admonished the jury that opening statements were not evidence. Therefore, any
error did not amount to reversible error.
{¶41} Stites also alleges that the prosecutor improperly remarked to the jury
during closing argument that the state had hundreds of recorded jail calls between
See and Stites, and that a call “probably” existed where Stites had said, “Oh my gosh,
I’m in trouble.” The prosecutor’s comment followed defense counsel’s argument that
the state had failed to produce a jail call in which Stites admitted liability. Stites also
argues that prosecutor improperly remarked during closing: “I feel proud and I feel
privileged to stand here today and support [the victims].” The trial court again
immediately admonished the jury after counsel stated his opinion about the victims.
{¶42} Assuming that the prosecutor’s statements were improper, the two
statements were not so pervasive as to affect the impartiality of Stites’s trial. In other
words, absent these statements, the jury would have found Stites guilty beyond a
reasonable doubt. Therefore, we overrule the fifth assignment of error.
Grand-Jury Proceedings
{¶43} In Stites’s sixth assignment of error, she argues that the trial court
abused its discretion in admitting evidence regarding E.M.’s 2012 grand-jury
proceeding, and in admitting evidence regarding the underlying grand-jury
proceeding.
{¶44} Crim.R. 6(E) governs grand-jury secrecy, and it provides:
Deliberations of the grand jury and the vote of any grand juror shall
not be disclosed. Disclosure of other matters occurring before the
grand jury may be made to the prosecuting attorney for use in the
performance of his duties only pursuant to this rule. A grand juror,
prosecuting attorney, interpreter, court reporter, or typist who
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OHIO FIRST DISTRICT COURT OF APPEALS
transcribes recorded testimony, may disclose other matters occurring
before the grand jury, only when so directed by the court preliminary
to or in connection with a judicial proceeding, or when permitted by
the court at the request of the defendant upon a showing that grounds
may exist for a motion to dismiss the indictment because of matters
occurring before the grand jury. No grand juror, officer of the court, or
other person shall disclose that an indictment has been found against a
person before such indictment is filed and the case docketed. The
court may direct that an indictment shall be kept secret until the
defendant is in custody or has been released pursuant to Rule 46. In
that event the clerk shall seal the indictment, the indictment shall not
be docketed by name until after the apprehension of the accused, and
no person shall disclose the finding of the indictment except when
necessary for the issuance of a warrant or summons. No obligation of
secrecy may be imposed upon any person except in accordance with
this rule.
{¶45} Stites argues that E.M.’s testimony violated Crim.R. 6(E). E.M.
testified regarding how she had disclosed See’s abuse in 2012, leading to a police
investigation. E.M. did not testify in front of the 2012 grand jury. E.M. was told that
the grand jury refused to issue an indictment against See because of “a lack of
physical evidence.”
{¶46} Crim.R. 6(E) does not impose any secrecy obligations on a victim in a
grand-jury proceeding, except to the extent that it provides that no person can
disclose that an indictment has been found until the indictment is filed and a case
docketed. The rule also provides: “No obligation of secrecy may be imposed upon
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OHIO FIRST DISTRICT COURT OF APPEALS
any person except in accordance with this rule.” Therefore, E.M.’s testimony
regarding the 2012 grand-jury proceeding, which had occurred years prior and did
not result in an indictment, does not violate Crim.R. 6(E).
{¶47} Stites also argues that the state improperly questioned Norwood Police
Officer Kilby and Stites regarding the 2012 grand-jury proceeding. Officer Kilby
testified that he had reviewed the grand-jury transcript from 2012. He noted that
E.M. did not testify, but that Stites had “testified against” E.M. When the state cross-
examined Stites, Stites admitted that she had testified at the 2012 grand-jury
proceeding, and that her testimony was the same then as it was at trial.
{¶48} Officer Kilby’s testimony that E.M. did not appear in front of the 2012
grand jury was merely cumulative of E.M.’s testimony. As to the evidence that Stites
testified against E.M., Crim.R. 6(E) does not protect the grand-jury testimony of
defendants or codefendants from later disclosure. See Crim.R. 16(J)(2); State v.
Greer, 66 Ohio St.2d 139, 150, 420 N.E.2d 982 (1981). Moreover, the record
indicates that the state notified Stites of its intent to use the 2012 grand-jury
testimony at trial. Thus, Crim.R. 6(E) does not protect Stites’s 2012 grand-jury
testimony from disclosure at trial.
{¶49} Stites further argues that the admission of evidence related to the
grand-jury proceeding in the underlying case violated Crim.R. 6(E). Stites argues
that the trial court erred in allowing Officer Kilby to testify in general terms as to the
grand-jury process, and to list the witnesses who testified before the grand jury.
Stites argues that Officer Kilby should not have been able to list a grand-jury witness
whom the state did not call as a witness at trial.
{¶50} It is not clear that Crim.R. 6(E) bars Officer Kilby’s discussion of the
grand-jury process, or that Crim.R. 6(E) bars Officer Kilby from listing the names of
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OHIO FIRST DISTRICT COURT OF APPEALS
witnesses who testified at grand jury. Moreover, Officer Kilby did not disclose the
substance of any of the witnesses’ testimony. Therefore, Stites has not demonstrated
that Officer Kilby’s testimony related to the underlying grand-jury proceeding
amounted to plain error. See Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002) (a party claiming plain error under Crim.R. 52(B) must
show that an obvious error occurred, which affected the outcome of the trial).
{¶51} Because the admission of evidence related to the 2012 and underlying
grand-jury proceedings did not violate Crim.R. 6(E) and did not otherwise amount to
plain error, we overrule Stites’s sixth assignment of error.
Expert Opinions
{¶52} In Stites’s seventh assignment of error, she argues that the trial court
erred in permitting Officer Kilby and K.S.’s school counselor to render expert
opinions without qualifying them as experts.
{¶53} Stites relies on State v. Hall, 1st Dist. Hamilton No. C-170699, 2019-
Ohio-2985. In Hall, the state qualified a police officer as an expert in the midst of a
defendant’s sexual-assault trial without having supplied an expert-witness report as
required under Crim.R. 16(K). The trial court permitted the officer to testify that
children normally delay in reporting abuse, and that sexual assaults against children
typically occur by trusted individuals. The Hall court determined that the trial court
erred in allowing the officer to testify as an expert, and that the officer’s testimony
improperly bolstered the victims’ testimony. The Hall court determined that the
admission of the officer’s expert opinion was not harmless beyond a reasonable
doubt where prosecutorial misconduct had also occurred.
{¶54} Officer Kilby testified that, in his experience, child-sexual-abuse
victims do not typically delay reporting. Officer Kilby testified that child victims do
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OHIO FIRST DISTRICT COURT OF APPEALS
not behave in any “typical way” during an interview. Unlike the police officer in Hall
who testified as an expert for the state, Officer Kilby testified regarding his personal
experience as a police officer, he was never qualified as an expert, and he did not
purport to offer any expert opinion tied to the facts of this case, and thus he did not
render an expert opinion.
{¶55} Stites also takes issue with a portion of Officer Kilby’s testimony
regarding the jail-house calls made between See and Stites. The state questioned
Officer Kilby as to whether he had ever heard the name “John Zieger” mentioned
during the calls, to which Officer Kilby responded that he had not. The state asked
Officer Kilby whether the investigation had led to the existence of a perpetrator other
than the defendants, and Officer Kilby testified that it had not.
{¶56} Officer Kilby did not offer any expert opinions regarding the absence
of other perpetrators. The state introduced Officer Kilby’s testimony to rebut the
defense’s argument that multiple people had been in and out of the See home over
the years, and that perhaps someone else could have been the perpetrator. Again,
Officer Kilby did not render an expert opinion.
{¶57} Stites also takes issue with testimony from the Norwood school
counselor, who had dealt with K.S.’s emotional disturbances at school. The
counselor testified that she believed that K.S. had been struggling with mental-health
issues. When asked if K.S.’s behavior could be consistent with someone struggling
with sexual abuse in the home, the counselor testified that it “could also point to a
student who is struggling with some abuse in the home.” The school counselor also
testified that it did not surprise her to learn of the sexual-abuse allegations in this
case.
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{¶58} Just like Officer Kilby, K.S.’s school counselor was never qualified as
an expert and did not render an expert opinion. Although the counselor testified that
K.S.’s struggles “could” have been caused by sexual abuse, and that she was not
surprised to learn about K.S.’s allegations, these statements do not constitute an
expert opinion regarding the cause of K.S.’s behavior as tied to the facts of this case.
{¶59} Because the state did not offer improper expert-opinion testimony, we
overrule Stites’s seventh assignment of error.
Photographs of Victims as Children
{¶60} In Stites’s eighth assignment of error, she argues that the trial court
erred in allowing the state to introduce photographs of the victims as children.
{¶61} Evid.R. 403(A) provides that relevant evidence is not admissible “if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” The admission of photographic
evidence is left to the sound discretion of the trial court and will not be disturbed on
appeal absent an abuse of that discretion. State v. Morales, 32 Ohio St.3d 252, 257,
513 N.E.2d 267 (1987).
{¶62} At the conclusion of the state’s direct examination of the victims, the
prosecutor asked each victim to identify a picture of herself taken at a young age—
approximately the time the abuse began. Stites argues that the photographs of the
victims as children had no probative value and were used merely to play to the jury’s
emotions.
{¶63} The photographs of the victims as children were probative of the
victims’ young ages at the time the abuse began, especially in light of the fact that the
victims had reached adulthood by trial. The photographs did not unfairly prejudice
Stites. See raised a similar objection in his appeal, which this court overruled. See
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OHIO FIRST DISTRICT COURT OF APPEALS
State v. See, 1st Dist. Hamilton Nos. C-190251 and C-190252, 2020-Ohio-2923, ¶ 43-
44, citing State v. Davis, 7th Dist. Mahoning No. 05MA3, 2007-Ohio-1397, ¶ 39, and
State v. Carey, 5th Dist. Licking No. 2008-CA-20, 2009-Ohio-103, ¶ 100.
{¶64} Because the trial court did not abuse its discretion in admitting the
photographs of the victims as young children, we overrule Stites’s eighth assignment
of error.
Insufficient Evidence
{¶65} In Stites’s ninth assignment of error, she argues that the trial court
erred in denying her Crim.R. 29 motion for an acquittal on several counts of the
indictment. Stites argues that the evidence was insufficient to support the
complicity-to-rape and child-endangering convictions with respect to K.S., the
complicity-to-rape and gross-sexual-imposition convictions with respect to E.M., and
the complicity-to-rape and rape charges with respect to S.J.S.
{¶66} When reviewing a challenge to the sufficiency of the evidence, this
court must view the evidence in a light most favorable to the prosecution, and
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. We will examine the evidence as
to each victim in the light most favorable to the state to determine whether any
rational juror could have found the elements of the offenses proven beyond a
reasonable doubt.
Convictions related to K.S.
{¶67} In Count 38, the state alleged that Stites had committed complicity to
rape involving K.S., sometime from January 2007 to July 2012. Complicity is
defined in R.C. 2923.03, and it provides in relevant part that “[n]o person, acting
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OHIO FIRST DISTRICT COURT OF APPEALS
with the kind of culpability required for the commission of an offense, shall * * *
[a]id or abet another in committing the offense[.]” R.C. 2923.03(A)(2). “Aid” or
“abet” as used in the complicity statute means “ ‘[t]o assist or facilitate the
commission of a crime, or to promote its accomplishment.’ ” State v. Johnson, 93
Ohio St.3d 240, 754 N.E.2d 796 (2001), quoting Black’s Law Dictionary 69 (7
Ed.Rev.1999). Stites argues that the evidence was insufficient to establish that she
aided or abetted K.S.’s rape.
{¶68} K.S. testified that See had started engaging in sexual contact with her
when she was approximately six years old. Stites knew about the abuse K.S.
endured, because Stites “walked in” on K.S. and See while they were engaged in
sexual activity when K.S. was around ten or 11 years old, sometime from 2009 to
2010. K.S. testified that See had begun having sexual intercourse with her around
the age of 11, sometime in the summer of 2010. Stites also knew that See raped K.S.,
because Stites asked K.S. how she felt about her father taking her virginity. K.S.
further testified that on days when Stites had found out that K.S. and See had
engaged in sex acts, Stites would start fights with K.S. and with See. This evidence is
sufficient for the jury to infer that Stites knew See sexually abused their minor
daughter, and that Stites facilitated the abuse in their home.
{¶69} In Counts 39 and 41, the state charged Stites with child endangering
with respect to K.S during the 2007-to-2012 timeframe, and April 2015. Stites again
argues that the state failed to prove that she knew about the abuse, but, as we have
determined, the evidence belies Stites’s argument.
Convictions related to E.M.
{¶70} In Counts 23 and 24, the state alleged that Stites had committed
complicity to rape and gross sexual imposition with regard to E.M. in the summer of
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OHIO FIRST DISTRICT COURT OF APPEALS
2001. Stites argues that the evidence was insufficient to support that she had aided
See in raping E.M., or that she was present when S.J.S. and E.M. were made to
digitally penetrate each other.
{¶71} According to E.M., when she was five years old in the summer of 2001,
See made her perform fellatio on him, and she watched S.J.S. perform fellatio on See.
Although E.M. could not recall Stites participating in the summer 2001 incident,
S.J.S., who was around eight years old at the time, recalled that Stites was present
during the incident, and that Stites had actively encouraged the girls to penetrate
each other. We determine that the evidence was sufficient to sustain the convictions
on Counts 23 and 24.
Convictions related to S.J.S.
{¶72} In Counts 24, 26, and 27, the jury found that Stites had committed
gross sexual imposition, complicity to rape, and rape with regard to S.J.S. in the
summer of 2001.
{¶73} According to S.J.S., Stites forced S.J.S. to digitally penetrate E.M. This
evidence is sufficient evidence to sustain gross sexual imposition as stated in Count
24.
{¶74} S.J.S. also testified that See had forced her to perform oral sex on him,
and that Stites had been present when See first penetrated her with his penis. S.J.S.
testified:
Q. When you gave him a blow job, what happened next; do you
remember?
A. We went into the bedroom, and then he tried – like we tried to,
like – he tried to put his penis inside me, but it hurt and he just rubbed
it on there but he didn’t put it inside me.
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OHIO FIRST DISTRICT COURT OF APPEALS
Q. Eight years old at the time?
A. Yes.
Q. Had you ever had sexual intercourse?
A. No.
Q. *** He didn’t put his penis all the way inside you; is that what
you are saying?
A. He didn’t, no.
Q. Did he at all make any penetration in his attempt to do this?
A. It was like he didn’t put it inside me, no. He just rubbed it on
me.
Q. Did it go between the lips of your vagina?
A. Yes.
{¶75} Any penetration, however slight, is sufficient evidence for rape. State
v. Strong, 1st Dist. Hamilton No. C-100484, 2011-Ohio-4947, ¶ 54 (“penetration of
the labia was sufficient to prove penetration of the vagina for purposes of satisfying
the element of sexual conduct as defined in R.C. 2907.01(A)”). Thus, the evidence
was sufficient to sustain Stites’s conviction for complicity to rape as stated in Count
26.
{¶76} According to S.J.S., she had performed cunnilingus on Stites and Stites
had performed cunnilingus on her during the summer of 2001. These actions
formed the basis of the state’s rape charges as listed in Count 20 and Count 21.
Similarly, Count 27 alleged that Stites had performed cunnilingus on S.J.S. during
the summer of 2001. However, S.J.S. testified that she did not remember having had
“oral sex” with Stites other than one time that summer. The state concedes that the
evidence at trial was insufficient to prove that Stites raped S.J.S. more than once
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OHIO FIRST DISTRICT COURT OF APPEALS
during the summer of 2001. Therefore, the evidence was insufficient to sustain
Stites’s rape conviction in Count 27.
{¶77} We sustain in part Stites’s ninth assignment of error as to Count 27
only, and we overrule the remainder of the ninth assignment of error.
Merger
{¶78} In her tenth assignment of error, Stites argues that the trial court erred
in failing to merge some of her offense under R.C. 2941.25.
{¶79} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of
them.
{¶80} The Ohio Supreme Court has explained R.C. 2941.25 as follows:
1. In determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must evaluate three
separate factors—the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
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OHIO FIRST DISTRICT COURT OF APPEALS
involving separate victims or if the harm that results from each offense
is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of the
following is true: (1) the conduct constitutes offenses of dissimilar
import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were committed
with separate animus.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, syllabus.
{¶81} First, Stites argues that the offense of child endangering under R.C.
2919.22 with respect to K.S. as charged in Count 39 should have merged with the
offense of complicity to rape with respect to K.S. as charged in Count 38. The state
contends that the offenses of child endangering and complicity to rape do not merge,
because they are offenses of dissimilar import.
{¶82} The Ohio Supreme Court elaborated on offenses of dissimilar import
in State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266. In Early, the
Ohio Supreme Court determined that aggravated vehicular assault and operating a
motor vehicle while under the influence of drugs or alcohol (“OVI”) did not merge
under the allied-offense statute, even though the OVI offense served as the predicate
conduct for the aggravated vehicular assault. The court reasoned that aggravated
vehicular assault “has a different import and significance” than OVI, such that
“[t]here is a legitimate justification for criminalizing each of these offenses
separately[.]” Id. at ¶ 15.
{¶83} Applying Early, the Fifth Appellate District determined that the
offenses of murder and child endangering did not merge, reasoning that
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OHIO FIRST DISTRICT COURT OF APPEALS
the murder statute at issue in this matter is intended to punish the
taking of a human life while engaging in violence against another,
while the proscription against child endangering, in principle, is for
the separate overall purpose of protecting children against any type of
abuse or torture, which, in this instance, resulted in serious physical
harm and eventual death. Therefore, even though the two offenses
were based on the same course of conduct timeframe * * *, we hold the
trial court in the case sub judice did not err in refusing to merge the
two offenses for sentencing.
State v. Miku, 2018-Ohio-1584, 111 N.E.3d 558, ¶ 79 (5th Dist.).
{¶84} R.C. 2919.22 pertains to the duty of care and protection a parent or a
person acting in loco parentis has with respect to a child. Complicity to rape, on the
other hand, criminalizes actual physical harm regardless of the relationship between
the victim and the perpetrator. The fact that Stites was K.S.’s mother makes her
crimes different than if Stites had just been an unrelated person aiding and abetting
See’s rapes.
{¶85} Therefore, child endangering and complicity to rape are offenses of
dissimilar import, and the trial court did not err in failing to merge them.
{¶86} Next, Stites argues that Counts 20 and 21 should have merged. Counts
20 and 21 relate to cunnilingus between Stites and S.J.S. According to the testimony
offered by S.J.S. at trial, these offenses occurred on the same night and close in time.
Nevertheless, the state contends that these offenses were committed separately, and
thus the trial court did not err in failing to merge them.
{¶87} Different sexual acts are considered separate offenses. State v. Grant,
2d Dist. Montgomery No. 19824, 2003-Ohio-7240, ¶ 59, citing State v. Nicholas, 66
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio St.3d 431, 613 N.E.2d 225 (1993) (“Offenses involving distinct, different sexual
activity each constitute a separate crime with a separate animus, and are not allied
offenses of similar import, even when they are committed in the course of the same
encounter.”). The Eighth Appellate District determined that two counts of gross
sexual imposition did not merge where one count was related to the touching of the
victim’s breast and the other for the vaginal area. State v. Kalka, 8th Dist. Cuyahoga
No. 106339, 2018-Ohio-5030, ¶ 56.
{¶88} The act of Stites performing cunnilingus on S.J.S. and the act of S.J.S.
performing cunnilingus on Stites are different sexual acts. Therefore, we agree with
the state that Counts 20 and 21 do not merge.
{¶89} Because we determine that the trial court did not err in failing to
merge offenses as allied offenses of similar import, we overrule Stites’s tenth
assignment of error.
Conclusion
{¶90} We reverse Stites’s conviction on Count 27, as the state concedes that
the evidence presented at trial was insufficient to sustain that conviction. We
remand the matter to the trial court with instructions to vacate Stites’s conviction on
Count 27 and to docket an amended sentencing entry reflecting a total aggregate
sentence of 76 years. In all other respects, the judgment of the trial court is affirmed.
Judgment affirmed in part, reversed in part, and cause remanded.
MYERS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry this date.
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