State v. Pate ( 2021 )

[Cite as State v. Pate, 2021-Ohio-1838.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28702
:
v. : Trial Court Case No. 2019-CR-1019
:
SCOTT E. PATE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of May, 2021.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Scott E. Pate, appeals from his conviction in the
Montgomery County Court of Common Pleas after a jury found him guilty of ten counts of
rape of a minor less than ten years of age, nine counts of gross sexual imposition, four
counts of unlawful sexual conduct with a minor, and two counts of disseminating matter
harmful to juveniles. In support of his appeal, Pate argues that the trial court erred by
overruling his motion to sever offenses that were joined pursuant to Evid.R. 8(A). Pate
also argues that the trial court erred by admitting two of the victims’ video-recorded
forensic interviews into evidence under the hearsay exceptions in Evid.R. 803(4) and
Evid.R. 807(A). Pate further argues that his convictions for ten counts of rape of a minor
less than ten years of age were not supported by sufficient evidence and were against
the manifest weight of the evidence. Lastly, Pate argues that the State engaged in
prosecutorial misconduct at his trial and that the cumulative effect of all the errors at trial
warrants a reversal of his conviction. For the reasons outlined below, we find that all of
Pate’s claims lack merit, and we will therefore affirm the judgment of the trial court.
Facts and Course of Proceedings
{¶ 2} On May 1, 2019, a Montgomery County grand jury returned a 26-count
indictment charging Pate with ten counts of rape of a minor less than ten years of age in
violation of R.C. 2907.02(A)(1)(b); ten counts of gross sexual imposition (GSI) in violation
of R.C. 2907.05(A)(4), four counts of unlawful sexual conduct with a minor in violation of
R.C. 2907.04(A), and two counts of disseminating matter harmful to juveniles in violation
of R.C. 2907.31(A)(1). Each of the rape and gross sexual imposition counts included a
sexually violent predator specification under R.C. 2941.148(A).
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{¶ 3} The charges stemmed from allegations that Pate sexually abused four
minors, A.A.1, A.A.2, A.A.3, and E.K. The indictment alleged that the sexual abuse of
A.A.1, A.A.2, and A.A.3 occurred between March 1, 2016 and March 16, 2019. At the
time the abuse was disclosed, A.A.1 was seven years old, A.A.2 was five years old, and
A.A.3 was three years old. The indictment alleged that the sexual abuse of E.K. occurred
between January 1, 2004 and April 24, 2004. E.K. was 13 years old at the time of the
alleged abuse. The following table sets forth the charges pertaining to each of the four
victims.
Count Victim Offense Allegation
1 A.A.1 Rape < 10 Digital-vaginal penetration in back room of Pate’s residence
2 A.A.1 GSI Digital-vaginal contact in back room of Pate’s residence
(same incident as Count 1)
3 A.A.1 Rape < 10 Digital-vaginal penetration in front room of Pate’s residence
4 A.A.1 GSI Digital-vaginal contact in front room of Pate’s residence
(same incident as Count 3)
5 A.A.1 Rape < 10 Cunnilingus in back room of Pate’s residence
6 A.A.1 Rape < 10 Cunnilingus in Pate’s vehicle
7 A.A.1 Rape < 10 Cunnilingus in front room of Pate’s residence
8 A.A.1 Rape < 10 Fellatio in front room of Pate’s residence
9 A.A.1 GSI Penile-vaginal contact in front room of Pate’s residence
10 A.A.1 GSI Vaginal touching in Pate’s vehicle
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11 A.A.1 GSI Penile touching at Pate’s residence
12 A.A.1 GSI Penile touching at Pate’s residence
13 A.A.1 GSI Vaginal touching with an object in back room of Pate’s
residence
14 A.A.1 Disseminating Pornographic videos shown at Pate’s residence
15 A.A.2 Rape < 10 Cunnilingus in front room of Pate’s residence
16 A.A.2 Rape < 10 Cunnilingus in back room of Pate’s residence
17 A.A.2 Rape < 10 Fellatio at Pate’s residence
18 A.A.2 Rape < 10 Fellatio at Pate’s residence
19 A.A.2 GSI Vaginal touching in front room of Pate’s residence
20 A.A.2 GSI Vaginal touching in Pate’s residence
21 A.A.2 Disseminating Pornographic videos shown at Pate’s residence
22 A.A.3 GSI Digital-vaginal contact at Pate’s residence
23 E.K. Unlawful Digital penetration
Sexual
Conduct
24 E.K. Unlawful Vaginal intercourse
Sexual
Conduct
25 E.K. Unlawful Fellatio
Sexual
Conduct
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26 E.K. Unlawful Cunnilingus
Sexual
Conduct
{¶ 4} Pate pled not guilty to the indicted charges and the matter ultimately
proceeded to a jury trial on the 26 charges set forth above. Pate, however, elected to
have a bench trial on the sexually violent predator specifications. Prior to those
proceedings, the trial court conducted a voir dire examination to determine whether A.A.1
and A.A.2 were competent to testify at trial. Following this examination, the trial court
determined that A.A.1, who was then eight years old, was competent to testify. The trial
court determined, however, that A.A.2, who was then six years old, was not competent to
testify. Having found that A.A.2 was not competent to testify at trial, and following an
evidentiary hearing, the trial court determined that statements A.A.2 had made to her
mother and to a forensic interviewer about the abuse were admissible hearsay under
Evid.R. 807(A).
{¶ 5} Prior to trial, Pate filed a Crim.R. 14 motion to sever the charges related to
A.A.1, A.A.2, and A.A.3 from the charges related to E.K. so that they could be tried
separately. Although Pate conceded that all the charges were properly joined pursuant
to Crim.R. 8(A), he argued that the 12 to 15-year lapse in time between the charges would
cause the jury to have an unfavorable impression of him and would prejudice him at trial.
Pate also argued that the allegations related to E.K. and the allegations related to A.A.1,
A.A.2, and A.A.3 were so dissimilar that joinder served no valid evidentiary purpose.
Pate further argued that the requested severance was appropriate because the evidence
supporting the joined offenses would not be admissible at separate trials as other-acts
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evidence under Evid.R. 404(B).
{¶ 6} The trial court disagreed with Pate and denied his motion to sever. In doing
so, the trial court found that the evidence supporting the joined offenses was: (1) relevant;
(2) admissible at separate trials as other-acts evidence under Evid.R. 404(B); and (3) had
a probative value that outweighed the danger of unfair prejudice. The trial court further
found that the charges and evidence were separate and distinct and that there was only
a “scant likelihood of jury confusion.” Order Denying Motion to Sever (Sep. 30, 2019).
{¶ 7} The State called several witnesses at Pate’s jury trial. The witnesses
included A.A.1; E.K.; the mother of A.A.1, A.A.2, and A.A.3; the law enforcement officers
and experts who investigated the allegations of sexual abuse; and the medical and mental
health service providers who examined and treated A.A.1 and A.A.2. Pate also called
four relatives as defense witnesses. Pate called his wife, April Pate; his 19-year-old
daughter, Belinda Pate; his 23-year-old son, Jonathan Pate; and his 25-year-old stepson,
Ty Shyers. The following information was elicited at trial through the witnesses’
testimony and other evidence.
Pate’s Relationship to A.A.1, A.A.2, and A.A.3
{¶ 8} Pate’s wife, April, was close friends with the maternal grandmother of A.A.1,
A.A.2, and A.A.3. When the maternal grandmother passed away in 2012, April became
very close to A.A.1, A.A.2 and A.A.3’s mother (“Mother”). April and Mother became so
close that April was present in the delivery room when A.A.2 and A.A.3 were born.
Mother and her family spent a lot of time at the Pates’ residence for cookouts, birthday
celebrations, and holiday gatherings. Over time, April stepped into the role as
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grandmother to A.A.1, A.A.2, and A.A.3. The three girls referred to April as “Mammaw”
and to Pate as “Pawpaw.”
{¶ 9} Beginning in 2016, April and Pate would babysit A.A.1, A.A.2, and A.A.3 free
of charge. At 2:45 p.m. on Monday through Friday, Mother would drop off the three girls
at the Pates’ residence in Miamisburg, Montgomery County, Ohio. The girls would stay
at the Pates’ residence until their father (“Father”) picked them up sometime between
5 p.m. and 8 p.m. Pate, who was unemployed, was oftentimes the only person at home
when Mother dropped off the girls, and he would often babysit the girls when no one else
was at home. Pate also regularly picked up A.A.1 from elementary school during the
school year.
{¶ 10} In addition to babysitting, the Pates allowed A.A.1 and A.A.2 to each spend
one night of the week at their residence. A.A.1 and A.A.2 would rarely spend the night
at the same time. A.A.3, who was still very young, never spent the night with the Pates.
When A.A.1 or A.A.2 would spend the night, the child would either sleep in the bedroom
belonging to Pate’s daughter, Belinda, or on the couch in the living room.
A.A.1’s and A.A.2’s Disclosure of Abuse and the Subsequent Investigation
{¶ 11} On Saturday March 16, 2019, Mother was at home with A.A.1, A.A.2, and
A.A.3 while Father was out getting maintenance performed on their vehicle. As Mother
was finishing cleaning her bedroom, five-year-old A.A.2 came into the room and looked
at a license plate hanging on their wall that had a silhouette of a naked woman on it.
A.A.2 pointed to silhouette and angrily told her Mother that: “Pawpaw needed to tell the
truth.” Trial Trans. Vol. III, p. 542. When Mother asked A.A.2 what she was talking
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about, A.A.2 became dismissive. Mother, however, kept asking A.A.2 what she was
talking about, and A.A.2 eventually told Mother that: “Pawpaw’s trying to have sex with
me and my * * * sisters.” Id. Mother had never heard A.A.2 use the word “sex” before
and did not ask A.A.2 what she thought the word meant. Mother instead asked how long
Pate had been trying to have sex with her and her sisters. A.A.2 responded “for months,”
and then told Mother to ask A.A.1 about the abuse. Id. at 542-543.
{¶ 12} Mother then had A.A.2 leave the room and called seven-year-old A.A.1 into
the room to speak with her privately. During this conversation, Mother asked A.A.1 if
Pate had been touching her, to which A.A.1 responded “Yeah.” Id. at 544. Mother did
not elicit any more information from A.A.1 or A.A.2 until Father returned home, at which
time Mother and Father spoke with A.A.1 alone. As part of that conversation, A.A.1 told
Mother and Father that Pate was “licking on her.” Id. at 546.
{¶ 13} At trial, Mother could not remember what else A.A.1 had told her during their
conversation. However, Mother did recall reporting A.A.1’s and A.A.2’s allegations to
the Miamisburg Police Department the following day, Sunday March 17, 2019, and
providing the police with a written statement. Mother’s written statement, which was
admitted into evidence, described the circumstances surrounding A.A.2’s disclosure and
the information that Mother subsequently learned from speaking with A.A.1. Mother
wrote in the statement that A.A.1 told her that Pate “had her go to their back room and
touches on her privates when nobody is there” and “has rub[b]ed on her down there.”
State’s Exhibit 1.
{¶ 14} After Mother completed her written statement, the investigating officer
instructed Mother to take the girls to the hospital to be examined. Once at the hospital,
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the sexual assault nurse examiner (“SANE nurse”) examined A.A.1 and A.A.2. The
examination did not uncover any visible, physical injuries to either girl. At trial, the SANE
nurse testified that it is normal not to see any injuries because vaginal tissue is very pliant
and heals quickly.
{¶ 15} The SANE nurse also performed rape-kit swabs on A.A.1’s and A.A.2’s
mouths, fingernails, genitalia, buttocks, and the areas around their anuses. The swabs
were then tested by a DNA forensic expert from the Miami Valley Regional Crime Lab.
The expert testified that the test results did not uncover any male DNA or semen. The
expert also testified that the results did not surprise her since it was reported that A.A.1.
and A.A.2 had bathed and changed their clothing prior to the swabs being taken.
{¶ 16} The matter was thereafter referred to CARE House, which is an advocacy
center for abused and neglected children in Montgomery County. A social worker for
CARE House, Jennifer Knisley, conducted forensic interviews with A.A.1 and A.A.2 three
days after they disclosed the abuse to Mother and Father. 1 During the forensic
interviews, A.A.1 and A.A.2 made several additional disclosures. Among the disclosures
were that Pate had touched A.A.1’s and A.A.2’s “privates” with his fingers going in circles,
licked their privates, and put his “thing” in their mouths. State’s Exhibit 5(A). A.A.1 also
claimed that when Pate was changing A.A.3’s diaper, she saw Pate touch A.A.3 with his
fingers the same way that he had touched her. Id. A.A.1 further claimed that Pate
touched her private with a blue “thing that you turn on” and “it starts squiggling around.”
Id. A.A.1 and A.A.2 both indicated that Pate showed them videos on his cell phone
1 Knisley attempted to conduct an interview with A.A.3, but A.A.3 was too young and
could not communicate.
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depicting females performing oral sex on males, and that Pate made them do what was
shown in the videos. Id.
{¶ 17} Following the CARE House interviews, a search warrant was executed at
Pate’s residence. During the search, officers collected Pate’s cell phone and a blue
vibrator located in a filing cabinet in Pate’s bedroom. When questioned by the
investigating detective, Pate denied having any kind of vibrators in his home. After the
detective informed Pate that a blue vibrator was found in his filing cabinet, Pate indicated
that it probably belonged to his wife, April. State’s Exhibit 16(A). During a subsequent
recorded jail call with April, Pate referenced the vibrator with a sense of familiarity, as
Pate told April that the officers had found “Mr. Blue.” State’s Exhibit 17; Trans. Vol. V, p.
1005.
{¶ 18} With regard to pornography, Pate initially told the investigating detective that
he never watched pornographic videos on his cell phone. Pate maintained that he only
visited a website called “Bootyville,” which he claimed showed no sexual acts, just women
wearing G-strings. State’s Exhibit 16(A). However, when the detective asked to search
Pate’s cell phone, Pate began to change his story and indicated that there was sexual
content on his cell phone that his friends had sent him.
{¶ 19} Pate also told the detective that he never showed A.A.1 or A.A.2
pornographic videos. However, as the interview progressed, Pate told the detective that
the girls possibly saw pornographic videos on his cell phone by accident while “walking
up” on him. State’s Exhibit 16(A). Pate claimed that when he saw the girls looking at
the video he would turn off his phone.
{¶ 20} During the course of the investigation, a mobile device examiner used
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extraction software to extract the data on Pate’s cell phone. The data extracted included
a website search history showing that Pate had searched and visited several active
websites on pornhub.com as recently as March 2019. The names of the websites that
Pate visited included, but were not limited to: “Exxxtra Small Teens Porn Videos”; “Teen
Porn Videos: Free College Teen Porn Sex Movies”; “Teen Virgin First Time Sex Porn
Videos”; and “Free Midget Teen Girl Porn Videos.” State’s Exhibit 13.
A.A.1’s Allegations of Abuse
{¶ 21} A.A.1 testified at trial that Pate had licked her private on the skin while she
was in the front room and back room of Pate’s house. Trial Trans. Vol. IV, p. 635-648.
A.A.1 also testified that Pate would lick her private in his truck and van when he would
pick her up from school. Id. at 648-651. A.A.1 additionally testified that she observed
Pate lick A.A.2’s private while they were in the front and back room of Pate’s house. Id.
at 666-668. A.A.1 also testified that Pate would rub on her private with two fingers going
in circles while they were in Pate’s living room, back room, van, and truck. Id. at 653-
655. A.A.1 further testified that Pate would make his private touch her bottom on the
skin while she was bending over the arm of a chair in the living room with her pants off.
Id. at 642-644.
{¶ 22} A.A.1 additionally testified that Pate would put a “blue squiggly thing” that
made a buzzing sound on her private. Id. at 656-657. A.A.1 testified that Pate would
also make her touch his private with “the blue squiggly thing” while in the front room and
back room of his house and in his van. Id. at 662. A.A.1 testified that Pate kept “the
blue squiggly thing” in his drawer in the back room. Id. at 655-656. When asked to
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identify a picture of the blue vibrator that was found at Pate’s residence, A.A.1 did not
recognize it as the one that Pate had used on her. A.A.1 testified that the one used on
her was round with no bumps on it. Id. at 674. Pate’s wife, April, later testified that six
or seven years ago she had a silver egg or oval shaped vibrator called “bullet.” Trial
Trans. Vol. VI, p. 1145 and 1165-1166.
{¶ 23} A.A.1 further testified that Pate would make her put her mouth on his private
while they were in the living room and back room of his house. Trial Trans. Vol. IV, p.
659-661. A.A.1 also testified that Pate instructed her on how to do this by showing her
a video on his cell phone. Id. A.A.1 testified that the video showed “girls sucking on the
boys’ things.” Id. at 659 and 661. A.A.1 further testified that she saw Pate move his
fingers in circles on A.A.3’s private spot when he was changing her diaper. Id. at 663-
664.
Pate’s Relationship to E.K. and E.K.’s Disclosure of Abuse
{¶ 24} Pate’s wife, April, is E.K.’s aunt, as April’s brother is E.K.’s father. E.K.,
therefore, refers to Pate as her uncle. Between January and April 2004, E.K.’s mother
resided at Orchard Hill Apartments in Miamisburg, Ohio. During this time, E.K., who was
then 13 years old, would go between living with her mother and living with the Pates who
also resided at the Orchard Hill Apartments. E.K. would stay with the Pates for two
weeks at a time.
{¶ 25} On April 23, 2004, E.K. told her stepfather’s sister, Janet Russell, that Pate
sexually abused her. After Russell discussed the matter with E.K.’s mother, who was
skeptical of E.K.’s allegations, Russell called the police. Officer Russell Green of the
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Miamisburg Police Department responded to the call and obtained written statements
from Russell and E.K. Although E.K.’s writing was somewhat illegible and difficult to
discern, E.K. indicated at trial that her 2004 written statement described an incident in
which Pate sexually abused her in his bedroom. A legible portion of E.K.’s written
statement indicated that while she was living with Pate, he asked her if she wanted to do
a “69 with him,” and that she said “no.” State’s Exhibit 6. The statement also said that
E.K. “got in the bed with him” and Pate “stuck it in [her]” and said “I love you.” Id.
Russell’s written statement said that E.K. told her that Pate “stuck it in me a little” and that
he “touched her in [private] areas and molested her, but said she was still a virgin.”
State’s Exhibit 55. Although Officer Green reported the matter to his supervisor, for
unknown reasons there was no further investigation into the matter.
{¶ 26} Shortly after reporting the incident, E.K. moved to Georgia to live with her
grandmother. Approximately three or four years later, E.K. returned to Miamisburg, Ohio
to live with her mother. After living with her mother, E.K. lived with a couple of girlfriends
for two or three years until she met her now ex-wife. E.K. and her ex-wife lived in
Kentucky for four years before they got divorced. Following the divorce, E.K. remained
in Kentucky for three years until she moved back to Ohio due to financial hardship.
Because she had nowhere to go, E.K. called her aunt, April, in 2018, to see if she could
stay with her. April, who then lived at the Pates’ current residence in Miamisburg, agreed
to let E.K. live with her, Pate, and their daughter Belinda.
{¶ 27} Between 2018 and 2019, E.K. went back and forth between staying at the
Pates’ residence and a hotel room. While staying with the Pates, E.K. slept on a cot in
the living room. E.K. felt awkward living with the Pates given what had happened
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between her and Pate in 2004. E.K., however, kept to herself and did not interact much
with Pate. E.K. testified that on December 15, 2018, Pate had sent her a text message
while they were both at the Pates’ residence that asked her if she wanted “to come back
here show me tit[t]ies.” Trial Trans. Vol. V, p. 846-847; State’s Exhibit 7. E.K. did not
respond to Pate’s text message.
{¶ 28} Shortly thereafter, on January 24, 2019, E.K. was staying in a hotel room
and was supposed to be picked up by Pate after she checked out. E.K. testified that
before Pate picked her up, he sent her a text message that stated: “When I pick you up *
* * can get some of that before you check out[?]” State’s Exhibit 7. When E.K. texted
back “some of what[?]” Pate responded: “W[h]at I always want[.] What do you say been
a while[.] If so I’ll take a shower and bring a jo[i]nt[.]” Id. E.K. testified that “what [Pate]
always wants is pussy.” Trial Trans. Vol. V, p. 849-850. E.K. testified that she declined
Pate’s offer by sending him a message saying that she was on her “monthly.” Id. at 850;
State’s Exhibit 7. E.K. testified that by “monthly” she meant her “period” and that she
was not really on her period. Id. at 850-851. E.K. testified that she lied about being on
her period because it sickened her to think about having intercourse with Pate. Id. at
851.
{¶ 29} After learning about A.A.1’s and A.A.2’s disclosures of abuse, E.K. spoke
to the investigating detective about certain interactions she observed between Pate and
the girls that made her uncomfortable. E.K. also spoke to the detective about the abuse
she suffered at the hands of Pate when she was a child. On March 29, 2019, E.K. wrote
a statement discussing how Pate abused her. See State’s Exhibit 8. Two weeks after
meeting with the detective, E.K. permanently moved out of the Pates’ residence.
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E.K.’s Allegations of Abuse
{¶ 30} E.K. testified at trial regarding the abuse she suffered in 2004. E.K.
testified that Pate took her upstairs to his bedroom to play with his “magic cards” and
locked the door behind them while she and Pate were alone at his residence. Trial
Trans. Vol. V, p. 821. E.K. testified that Pate started to get undressed and played a video
on the television at the foot of his bed to help get him aroused. Id. at 822. E.K. testified
that Pate helped her to get undressed and began stroking his penis and told her he had
to “wake up his little friend.” Id. at 823. E.K. testified that Pate then started rubbing her
vagina and licked his fingers afterwards. Id. E.K. testified that Pate then pulled her to
the edge of his bed and stuck his penis inside her vagina. Id. E.K. testified that the
incident eventually ended by Pate pulling out his penis and masturbating until he
ejaculated. Id. at 824.
{¶ 31} E.K. testified that whenever Pate had intercourse with her, he would first
perform cunnilingus on her. Id. at 827. E.K. also testified that when he abused her in
his bedroom, Pate always had the television on showing videos of people having
intercourse and oral sex. Id. at 829. E.K. recalled that Pate instructed her on how to
perform fellatio by showing her how to put her tongue on the back of his penis in order to
apply pressure to it. Id. E.K. also testified that there was another incident in which Pate
stuck his fingers inside her vagina while she was sitting in the front-passenger seat of his
vehicle while they were coming back from the store. Id. at 825-826. E.K. testified that
Pate told her that if she told her mother about the abuse she would get taken away and
never see her mother again. Id. at 830.
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Verdict and Sentence
{¶ 32} After considering all the testimony and evidence, the jury found Pate guilty
of 25 of the 26 counts set forth in the indictment, the lone exception being the single count
of gross sexual imposition involving A.A.3. The trial court also found Pate guilty of all the
sexually violent predator specifications. At sentencing, the trial court merged several of
the counts and ordered all of the counts to be served consecutively for a total, aggregate
sentence of ten terms of life in prison without the possibility of parole with an additional
definite term of 58 years to life in prison. The trial court also found that Pate was a Tier
III sex offender, a child victim offender, and a sexual predator who was subject to
registration, reporting, and verification requirements under both Meghan’s Law and the
Adam Walsh Act. Pate now appeals from his convictions, raising five assignments of
error for review.
First Assignment of Error
{¶ 33} Under his first assignment of error, Pate contends that the trial court erred
by failing to grant his motion to sever the charged offenses that pertained to E.K. from the
charged offenses that pertained to A.A.1, A.A.2, and A.A.3., so that the offenses could be
tried separately. We disagree.
Joinder of Offenses
{¶ 34} Crim.R. 8(A) provides, in relevant part, that: “Two or more offenses may be
charged in the same indictment, information or complaint in a separate count for each
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offense if the offenses charged * * * are of the same or similar character[.]” Crim.R 8(A)
also allows for the joinder of offenses that “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.” Permitting joinder “ ‘conserves resources by avoiding
duplication inherent in multiple trials and minimizes the possibility of incongruous results
that can occur in successive trials before different juries.’ ” State v. Ford, 158 Ohio St.3d
139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 103, quoting State v. Hamblin, 37 Ohio St.3d
153, 158, 524 N.E.2d 476 (1988).
{¶ 35} “ ‘Notwithstanding the policy in favor of joinder,’ Crim.R. 14 permits a
defendant to request severance of the counts in an indictment ‘on the grounds that he or
she is prejudiced by the joinder of multiple offenses.’ ” Id. at ¶ 104, quoting State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 49. “The defendant ‘has
the burden of furnishing the trial court with sufficient information so that it can weigh the
considerations favoring joinder against the defendant’s right to a fair trial.’ ” Id., quoting
State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). The State, however,
can overcome a defendant’s claim of prejudicial joinder in two ways. Id. “The first way
is by satisfying the ‘other acts’ test.” (Citation omitted.) LaMar at ¶ 50. That is, “[i]f in
separate trials the state could introduce evidence of the joined offenses as ‘other acts’
under Evid.R. 404(B), a defendant cannot claim prejudice from the joinder.” (Citations
omitted.) Id. “The state may also negate a claim of prejudice by satisfying the less
stringent ‘joinder test,’ which requires a showing ‘that evidence of each crime joined at
trial is simple and direct.’ ” Id., quoting State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d
293 (1990) and Torres at 344.
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{¶ 36} In order to prevail on a claim that the trial court erred in denying a motion to
sever, the defendant “ ‘must affirmatively demonstrate (1) that 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.’ ” Ford at ¶ 106, quoting
State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). A trial court’s ruling on
a Crim.R. 14 motion is therefore reviewed for an abuse of discretion. Id., citing State v.
Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. “A trial court abuses
its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”
(Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d
971, ¶ 34. An abuse of discretion most often involves an unreasonable decision that is
not supported by a sound reasoning process. AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990).
{¶ 37} As noted above, Pate argues that the trial court abused its discretion when
it denied his motion to sever the charged offenses that pertained to E.K. from the charged
offenses that pertained to A.A.1, A.A.2, and A.A.3. In support of the motion, Pate argued
that joining these offenses would prejudice him because the 12 to 15-year time span
between the allegations would create an unfavorable impression of him in the mind of the
jurors. Pate also argued that the allegations pertaining to E.K. were so dissimilar from
the allegations pertaining to A.A.1, A.A.2, and A.A.3, that joinder served no valid
evidentiary purpose. Pate further argued that the State would not be permitted to
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introduce evidence of the joined offenses in separate trials as other-acts evidence under
Evid.R. 404(B). The trial court disagreed with Pate’s arguments and denied the motion
to sever. For the following reasons, we do not find that the trial court’s decision was an
abuse of discretion.
Evid.R. 404(B) Other-Acts Evidence
{¶ 38} As previously noted, the State can overcome a defendant’s claim of
prejudicial joinder by showing that evidence of the joined offenses would be admissible
at separate trials as other-acts evidence under Evid.R. 404(B). Ford at ¶ 104; Lamar at
¶ 50. Evid.R. 404(B) provides, in relevant part, that:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
{¶ 39} Therefore, under Evid.R. 404(B), “evidence of other crimes, wrongs, or acts
may be admissible for any purpose material to the issue of guilt or innocence as long as
it is not being introduced for the purpose of showing the accused’s propensity to commit
bad acts.” State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 49
(2d Dist.). In other words, “evidence of other acts is admissible when the evidence is
probative of a separate, nonpropensity-based issue.” State v. Hartman, 161 Ohio St.3d
214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22.
{¶ 40} R.C. 2945.59 similarly provides that:
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In any criminal case in which the defendant’s motive or intent, the
absence of mistake or accident on his part, or the defendant’s scheme, plan,
or system in doing an act is material, any acts of the defendant which tend
to show his motive or intent, the absence of mistake or accident on his part,
or the defendant’s scheme, plan, or system in doing the act in question may
be proved, whether they are contemporaneous with or prior or subsequent
thereto, notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant.
{¶ 41} Like Evid.R. 404(B), R.C. 2945.59 “preclude[s] the admission of evidence
of other crimes, wrongs, or acts offered to prove the character of an accused in order to
show that the accused acted in conformity therewith, but it does not preclude admission
of that evidence for other purposes, e.g., to show proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 25.
{¶ 42} In Williams, the Supreme Court of Ohio “set forth a three-part analysis for
determining the admissibility of other-acts evidence: to be admissible, (1) the evidence
must be relevant, Evid.R. 401, (2) the evidence cannot be presented to prove a person’s
character to show conduct in conformity therewith but must instead be presented for a
legitimate other purpose, Evid.R. 404(B), and (3) the probative value of the evidence
cannot be substantially outweighed by the danger of unfair prejudice, Evid.R. 403.” State
v. Graham, Ohio Slip Opinion No. 2020-Ohio-6700, __ N.E.3d __ ¶ 72. “ ‘The
admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a question of law.’ ” Id.,quoting Hartman at ¶ 22. “The court is precluded from admitting improper character
-21-
evidence under Evid.R. 404(B), but it has discretion to allow other-acts evidence that is
admissible for a permissible purpose.” (Citations omitted.) Id.{¶ 43} In denying Pate’s motion to sever, the trial court applied the three-part test
in Williams and found that Williams was factually similar to the instant case. Like Pate,
the defendant in Williams was convicted of several counts of rape, gross sexual
imposition, and unlawful sexual conduct with a minor. Williams at ¶ 1. The convicted
offenses in Williams stemmed from the defendant sexually abusing J.H., a 14-year old
boy who the defendant mentored at church. Id. at ¶ 3. Over objection, the trial court in
Williams permitted the State to admit other-acts evidence from a witness who testified
that the defendant had similarly abused him 10 years earlier when he was 16 years old.
Id. at ¶ 5-8. The State offered the witness’s testimony to show that the defendant had a
common plan or scheme, a distinct pattern of sexual conduct, and the intent to achieve
sexual gratification with teenage males. Id. at ¶ 5.
{¶ 44} On appeal, the Eighth District Court of Appeals held that the witness’s
testimony in Williams was inadmissible other acts evidence under Evid.R. 404(B). Id. at
¶ 10. Relying on State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), the Eighth
District determined that other-acts evidence offered to show a scheme, plan, or system is
inadmissible unless it shows the background of the alleged crime or proves the identity
of the accused. Id. The Eighth District therefore held that Curry precluded the
admission of evidence of the defendant’s prior sexual relationship with a different minor,
because the sexual acts of that relationship had been “chronologically and factually
separate occurrences” and the identity of the accused was not an issue at trial. Id. at
¶ 1. The Supreme Court of Ohio, however, disagreed and reversed the Eighth District’s
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decision. Id. at ¶ 2.
{¶ 45} In reversing Williams, the Supreme Court explained that evidence of other
crimes, wrongs, or acts of an accused may be admissible to prove intent or plan, even if
the identity of an accused or the immediate background of a crime is not at issue. Id. at
¶ 2. The Supreme Court held that evidence of Williams’s sexual relations with another
teenage boy on previous occasions was relevant to prove that the defendant had a plan
to target vulnerable teenage boys, to mentor them, and to groom them for sexual activity
with the intent of sexual gratification. Id. at ¶ 22. Instead of simply showing propensity,
the Supreme Court found that “[t]he state offered the testimony of [the witness] to
demonstrate the motive, preparation, and plan of the accused to target teenage males
who had no father figure and to gain their trust and confidence for the purpose of grooming
them for sexual activity with the intent to be sexually gratified.” Id. at ¶ 21.
{¶ 46} The Supreme Court also noted that the witness’s testimony “rebutted the
suggestion offered by the defense during opening statements that J.H. had falsely
accused Williams of abuse with the hope of getting out of trouble at school and the
suggestion that Williams was sexually attracted to women.” Id. at ¶ 22. The Supreme
Court additionally found that the witness’s testimony indicating “that Williams received
‘some type of sexual gratification’ also [was] relevant to show that Williams’s intent was
sexual gratification.” (Citation omitted.) Id. Therefore, having found that the witness’s
testimony was relevant, probative of something other than propensity, and not unfairly
prejudicial, the Supreme Court in Williams reinstated the judgment of the trial court. Id.
at ¶ 21-25.
{¶ 47} Relying on Williams, the trial court in this case concluded that if the
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allegations concerning E.K. were tried separately from the allegations concerning A.A.1,
A.A.2, and A.A.3, the evidence supporting their respective allegations would be
admissible as other-acts evidence under Evid.R. 404(B). Using the three-part test in
Williams, the trial court found that: (1) the evidence supporting the charges relating to
E.K. was relevant to the charges relating to A.A.1, A.A.2, and A.A.3, and vice versa; (2)
the evidence supporting the charges was probative of non-propensity based issues, i.e.,
Pate’s motive, preparation, plan, lack of mistake or accident, scheme, or pattern of
conduct; and (3) the probative value of the evidence was not outweighed by the danger
of unfair prejudice.
{¶ 48} Pate challenges the trial court’s decision on this matter based on the
Supreme Court of Ohio’s recent decision in Hartman, 161 Ohio St.3d 214, 2020-Ohio-
4440, 161 N.E.3d 651. In Hartman, the defendant was accused of raping an adult female
acquaintance in her hotel room after they had spent the evening out with a group of
friends. Id. at ¶ 1. In order to counter Hartman’s claim that the sexual encounter with
the rape victim was consensual, the State presented evidence establishing that Hartman
had sexually abused his stepdaughter when she was a child. Id. at ¶ 12. Following trial,
Hartman was found guilty of rape and appealed his conviction. Id. at ¶ 16. On appeal,
the Eighth District Court of Appeals reversed Hartman’s convictions on grounds that the
evidence purporting to show that he sexually abused his stepdaughter was inadmissible
other-acts evidence under Evid.R. 404(B). Id. at ¶ 17. The Supreme Court of Ohio
agreed with the Eighth District and Hartman and held that the evidence at issue
“constituted improper propensity evidence, and the trial court erred in admitting it.” Id. at
¶ 64.
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{¶ 49} In reaching its decision in Hartman, the Supreme Court discussed the
exceptions listed in Evid.R. 404(B) in great detail. With regard to motive, the Supreme
Court explained that: “Motive evidence establishes that the accused had a specific reason
to commit a crime.” Id. at ¶ 48. The Supreme Court found that other-acts evidence is
not admissible for purposes of establishing motive in rape cases when the evidence does
not provide any motive beyond that which can be inferred from the commission of the
offenses itself, i.e., sexual gratification. Id. at ¶ 49-50. For this reason, the motive
exception would not apply in the instant case.
{¶ 50} When discussing the “common scheme or plan” exception in Evid.R.
404(B), the Supreme Court in Hartman distinguished its decision in Williams and stated
the following:
Here, the evidence plainly does not fit into the common
understanding of plan evidence. Hartman’s alleged assault of his
stepdaughter was not part of a larger scheme involving the rape of E.W.
Nonetheless, the state contends that the evidence was admissible as a
result of our decision in Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983
N.E.2d 1278.
In Williams, we considered whether other-acts evidence tending to
show a plan may be admitted when the identity of the assailant is not at
issue. Although we had previously indicated that such evidence will most
often be relevant to illustrate the immediate background of the offense or
identify the perpetrator, see Curry, 43 Ohio St.2d at 73, 330 N.E.2d 720, we
confirmed in Williams that plan evidence is not necessarily limited to those
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scenarios and may be admitted for other purposes, Williams at ¶ 19.
While the other-acts evidence in Williams tended to show that
the defendant, who had been charged with the rape of a 14-year-old
boy, had a pattern of grooming teenage boys to take advantage of
them sexually, that fact alone is not what overcame the propensity bar.
Rather, the result in Williams turned on the state’s use of the other-
acts evidence for the purpose of refuting the defendant’s claims that
he was not sexually attracted to teenage boys and establishing that
the defendant had acted with the specific intent of achieving sexual
gratification. Id. at ¶ 22, 25.
There may be instances in which seemingly unrelated but highly
similar crimes could be evidence of a common scheme to commit the
charged crime—perhaps, for instance, a string of robberies occurring close
in time and location. We stress, however, that plan evidence should show
that the crime being charged and the other acts are part of the same grand
design by the defendant. Otherwise, proof that the accused has committed
similar crimes is no different than proof that the accused has a propensity
for committing that type of crime. The takeaway for the jury becomes, “The
accused did it once recently; therefore, the accused did it again.”
Imwinkelried, Using a Contextual Construction to Resolve the Dispute over
the Meaning of the Term “Plan” in Federal Rule of Evidence 404(b), 43
U.Kan.L.Rev. 1005, 1012 (1995).
Here, Hartman’s molestation of his stepdaughter four years prior was
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not linked to any overarching plan to commit rape against E.W. The
incidents are wholly distinct, and unlike the common-scheme evidence
demonstrated in Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983
N.E.2d 1278, the other-acts evidence in this case contains few similarities
to the crimes charged. Thus, the evidence was not relevant to show a
common scheme or plan.
(Emphasis added.) Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, at
¶ 43-47.
{¶ 51} The Supreme Court in Hartman also discussed the absence of mistake and
intent exceptions in Evid.R. 404(B) and stated the following:
Other-acts evidence is admissible to negate a defendant’s claim of
mistake or accident with respect to the commission of the alleged crime;
such evidence tends “[t]o show, by similar acts or incidents, that the act in
question was not performed inadvertently, accidentally, involuntarily, or
without guilty knowledge.” McCormick, Evidence, Section 190, at 804 (4th
Ed.1994). In the criminal context, there are generally two ways in which
the accused may raise a claim of accident. Imwinkelried, 51 Ohio St.L.J.
at 593. The first involves whether a criminal act occurred at all. * * *
The second scenario implicates the intent of the accused. The
question here is not whether the act occurred but whether the defendant
acted with a criminal intent. * * *
***
There is a thin line between the permissible use of other-acts
-27-
evidence to show intent and the impermissible use to show propensity.
Allowing other-acts evidence to prove the defendant’s state of mind “flirt[s]
dangerously with eviscerating the character evidence prohibition”
altogether. Leonard at Section 7.4. * * *
For this reason, courts should use caution when evaluating whether
to admit other-acts evidence for the purpose of showing intent or absence
of mistake. To determine whether other-acts evidence is genuinely
probative of the intent of the accused to commit the charged crime, rather
than merely the accused’s propensity to commit similar crimes, the question
is whether, “under the circumstances, the detailed facts of the charged and
uncharged offenses strongly suggest that an innocent explanation is
implausible.” (Emphasis sic.) Id. at Section 7.5.2. Or to put it another
way, the other-acts evidence “must be so related to the crime charged in
time or circumstances that evidence of the other acts is significantly useful
in showing the defendant’s intent in connection with the crime charged.” 1
Wharton’s Criminal Evidence at Section 4:31.
(Emphasis added.) Hartman at ¶ 52-58.
{¶ 52} With the foregoing principles in mind, we find that the evidence supporting
the joined offenses in this case was more similar to the evidence in Williams than
Hartman. We reach this conclusion because the similarities between the abuse alleged
by A.A.1, A.A.2, and E.K. were not only probative of Pate’s common scheme or pattern
of sexually abusing young girls who were entrusted into his care, but it was also probative
of absence of mistake. Specifically, E.K.’s testimony that Pate played pornographic
-28-
videos when he sexually abused her in 2004 tended to refute Pate’s claim that A.A.1 and
A.A.2 accidently saw pornographic videos on his cell phone. E.K.’s testimony that Pate
played pornographic videos showing people having intercourse and oral sex when he
abused her and also instructed her on how to perform fellatio was similar to A.A.1’s
testimony that Pate showed her how to perform fellatio by showing her videos of “girls
sucking on boys’ things.” Trial Trans. Vol. IV, p. 659-661. E.K.’s testimony was likewise
similar to A.A.2’s allegation in her forensic interview that Pate would show her videos of
adults engaging in oral sex and would make her do the things shown in the videos. The
similarities between these allegations indicated that Pate’s actions were not performed
innocently or by accident. Therefore, we find that the evidence of the joined offenses
was relevant and admissible for a reason other than propensity.
{¶ 53} We further find that the probative value of the other-acts evidence was not
outweighed by the danger of unfair prejudice. The other-acts evidence was greatly
probative in that it corroborated the victims’ allegations of abuse. This is especially
important in this case given that A.A.1 and A.A.2 were very young and thus more
susceptible to attacks on their credibility and reliability.
{¶ 54} We also note that the Supreme Court of Ohio has recognized that when a
witness is a material witness in two separate cases there is no prejudice in trying the
cases together. State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251,
¶ 28. A material witness is ‘[a] witness who can testify about matters having some logical
connection with the consequential facts, esp. if few others, if any, know about those
matters.’ ” Id., quoting Black’s Law Dictionary 1839 (10th Ed.2014).
{¶ 55} In this case, E.K. was a material witness in that her testimony not only
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concerned her allegations of abuse, but A.A.1’s and A.A.2’s allegations as well.
Specifically, E.K. testified that when A.A.1 and A.A.2 were around Pate’s computer, she
would occasionally “hear the girls tell [Pate] to stop, but when [she’d] look over at them
* * * [Pate] would make it look like he was patting their butt or tapping their hips or
something.” Trial Trans. Vol. V, p. 842. E.K. also testified that Pate “would be kissing
them on the neck,” and that the girls “never kissed him back.” Id. at 875. E.K. further
testified that when Pate tried to kiss the girls, they “pushed their head down to their
shoulders and would tell him ‘No, stop.’ ” Id. 875-876. Therefore, because E.K. was a
material witness in both matters, there was no prejudice in joining the offenses in
question.
{¶ 56} For the foregoing reasons, we find that all three parts of the other-acts
admissibility test set forth in Williams were satisfied. That is, the other-acts evidence
was relevant, probative of a non-propensity issue, and its probative value was not
outweighed by the danger of unfair prejudice. See Graham, Ohio Slip Opinion No. 2020-
Ohio-6700, __ N.E.3d __, at ¶ 72. Therefore, the evidence of the joined offenses was
admissible as other-acts evidence under Evid.R. 404(B). Because the State can
overcome a defendant’s claim of prejudicial joinder by showing that it could have
introduced evidence of the joined offenses as other-acts evidence under Evid.R. 404(B),
and because the trial court did not err in finding that the evidence at issue could be
introduced under that rule, the trial court did not abuse its discretion in denying Pate’s
motion to sever the joined offenses.
Simple and Direct Evidence
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{¶ 57} Even if we had found that the evidence at issue was not admissible as other-
acts evidence, the State can also defeat a claim of prejudicial joinder by showing that the
evidence pertaining to each offense joined at trial is simple and direct. Ford, 158 Ohio
St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, at ¶ 104; Lott, 51 Ohio St.3d at 163, 555
N.E.2d 293. “[W]hen simple and direct evidence exists, an accused is not prejudiced
by joinder regardless of whether the evidence is admissible as other-acts evidence.”
(Citations omitted.) State v. Coley, 93 Ohio St.3d 253, 260, 754 N.E.2d 1129 (2001),
citing Lott at 163. Evidence is simple and direct if the jury can readily separate the proof
required for each offense, the evidence is straightforward and unlikely to confuse jurors,
and if there is little danger that the jury would improperly consider testimony on one
offense as corroborative of the other. State v. Morgan, 2d Dist. Clark No. 2018-CA-103,
2019-Ohio-3691, ¶ 79, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819
N.E.2d 215, ¶ 34, citing LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at
¶ 50-51. (Other citations omitted.)
{¶ 58} In denying Pate’s motion to sever, the trial court found that the evidence
supporting the joined offenses was separate and distinct and that there was a minimal
likelihood of jury confusion. After a thorough review of the record, we find that the trial
court’s decision was reasonable. There is nothing in the record suggesting that the
jurors were ever confused by the evidence or were unable to segregate the offenses and
evidence related to each charge. The jury, in fact, found Pate not guilty of one of the
charges levied against him, thereby demonstrating that the jury was able to sift through
the evidence and segregate the offenses successfully. Therefore, while there were
several charges brought in this case, the record nevertheless indicates that the evidence
-31-
supporting each charge was simple and direct. Because the evidence was simple and
direct, for that reason as well, the trial court did not abuse its discretion in denying Pate’s
motion to sever.
{¶ 59} Pate’s first assignment of error is overruled.
Second Assignment of Error
{¶ 60} Under his second assignment of error, Pate challenges the trial court’s
decision to permit portions of A.A.1’s and A.A.2’s forensic interviews to be admitted into
evidence at trial. In support of this claim, Pate contends that the forensic interviews were
inadmissible hearsay evidence under Evid.R. 802. Specifically, Pate claims that the trial
court erred in admitting the forensic interviews under the hearsay exceptions in Evid.R.
803(4) and Evid.R. 807(A). Pate also contends that since A.A.1 testified at trial, her
forensic interview should not have been admitted into evidence because it was cumulative
and prejudicial. For the reasons set forth below, we find that each of Pate’s claims lack
merit.
Standard of Review
{¶ 61} “The admission or exclusion of evidence rests within the sound discretion
of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph
two of the syllabus. Disagreements about the admission of evidence are therefore
reviewed for an abuse of discretion. State v. Freeman, 2d Dist. Greene No. 2020-CA-
33, 2021-Ohio-734, ¶ 54, citing Sage. As a result, “[h]earsay challenges to a trial court’s
admission of statements from children in sex-abuse cases are reviewed under an abuse-
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of-discretion standard.” State v. Moore, 2019-Ohio-1671, 135 N.E.3d 1114, ¶ 21 (2d
Dist.), citing State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 48.
As previously noted, “[a] trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary.” Darmond, 135 Ohio St.3d 343, 2013-Ohio-
966, 986 N.E.2d 971, at ¶ 34.
A.A.1’s and A.A.2’s Forensic Interviews were Admissible Hearsay Evidence
{¶ 62} 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. 801(C). As a general rule, hearsay statements are inadmissible as
evidence. Evid.R. 802. There are, however, several exceptions to this rule, including
the exceptions set forth in Evid.R. 803(4) and Evid.R. 807(A). We have addressed each
of these exceptions separately below.
1. Evid.R. 803(4)
{¶ 63} Evid.R. 803(4) provides that a hearsay statement made for purposes of
medical diagnosis or treatment is not excluded by the hearsay rule, even though the
declarant is available as a witness. Specifically, the rule permits “[s]tatements made for
purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Evid.R. 803(4). “Such statements are deemed to be trustworthy and admissible because
‘the effectiveness of the treatment depends upon the accuracy of information given to the
physician [so] the declarant is motivated to tell the truth.’ ” State v. Hazel, 2d Dist. Clark
-33-
No. 2011-CA-16, 2012-Ohio-835, ¶ 45, quoting State v. Brewer, 6th Dist. Erie No. E-01-
053, 2003-Ohio-3423, ¶ 28, citing State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d
409 (1988).
{¶ 64} In the present case, the trial court found that A.A.1’s and A.A.2’s forensic
interviews were admissible hearsay under Evid.R. 803(4) because the statements elicited
during the interviews were for purposes of medical diagnosis or treatment. Pate,
however, contends that the primary purpose of the interviews was forensic information
gathering, not medical diagnosis or treatment. Therefore, according to Pate, the
challenged evidence was hearsay and not admissible under Evid.R. 803(4). We
disagree.
{¶ 65} “In determining whether statements made to a forensic interviewer at a child
advocacy center are made for the purpose of medical diagnosis and treatment, as
opposed to forensic investigative purposes, the court must ‘identify the primary purpose
of the statements.’ ” State v. Remy, 2d Dist. Clark No. 2017-CA-6, 2018-Ohio-2856,
¶ 82, quoting State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 28.
“Whether the purpose of a child’s statements is for medical diagnosis or treatment will
depend on the facts of the particular case.” State v. Jones, 2015-Ohio-4116, 43 N.E.3d
833, ¶ 73 (2d Dist.), citing Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944 at
¶ 49.
{¶ 66} In Arnold, the Supreme Court of Ohio recognized that child-advocacy
centers are unique insofar as a single interview with a child serves “dual purposes,” which
are: “(1) to gather forensic information to investigate and potentially prosecute a
defendant for the offense and (2) to elicit information necessary for medical diagnosis and
-34-
treatment of the victim.” Arnold at ¶ 33. The Supreme Court in Arnold also found
nothing objectionable about considering the child’s statements individually to determine
which ones were for medical diagnosis or treatment and to exclude those that were not.
Id. at ¶ 42. For example, the Supreme Court found that some of the child’s statements
primarily had a forensic or investigative purpose, including the child’s assertion that the
defendant had “shut and locked the bedroom door before raping her; her descriptions of
where her mother and brother were while she was in the bedroom with Arnold, of Arnold’s
boxer shorts, of him removing them, and of what Arnold’s ‘pee-pee’ looked like; and her
statement that Arnold removed her underwear.” Id. at ¶ 34. The Supreme Court found
that “[t]hese statements likely were not necessary for medical diagnosis or treatment.
Rather, they related primarily to the state’s investigation.” Id.
{¶ 67} The Supreme Court, however, also found that “other statements provided
information that was necessary to diagnose and medically treat” the child victim. Id. at
¶ 37. The Supreme Court noted that “[t]he history obtained during the interview is
important for the doctor or nurse practitioner to make an accurate diagnosis and to
determine what evaluation and treatment are necessary.” Id. Specifically, the Supreme
Court held that the victim’s “statements that described the acts that Arnold performed,
including that Arnold touched her ‘pee-pee,’ that Arnold’s ‘pee-pee’ went inside her ‘pee-
pee,’ that Arnold’s ‘pee-pee’ touched her ‘butt,’ that Arnold’s hand touched her ‘pee-pee,’
and that Arnold’s mouth touched her ‘pee-pee’ ” were necessary for medical diagnosis or
treatment. Id. at ¶ 38. The fact that the victim already had undergone a “rape-kit
examination” did not dissuade the Supreme Court from finding that the foregoing
statements were necessary for subsequent medical diagnosis or treatment. Id. at ¶ 39.
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The Supreme Court also found nothing objectionable about the fact that police watched
the interview or the fact that information obtained for medical purposes ultimately was
used to prosecute the defendant. These considerations did “not change the fact” that
some of the child’s statements “were made for medical diagnosis and treatment.” Id. at
¶ 43.
{¶ 68} In State v. Warman, 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244,
the Twelfth District Court of Appeals applied Arnold in a case involving a recording of an
interview at a child-advocacy center. After reviewing the child’s statements during the
interview, the Twelfth District concluded that some of the statements were admissible
under Evid.R. 803(4) and some were not. Id. at ¶ 51-52. Although the trial court in
Warman had allowed the jury to see a video of the entire recorded interview, the Twelfth
District held that the introduction of the inadmissible statements was harmless error and
stated the following:
Under Arnold, KG6's statements concerning the specifics of the
sexual act she performed, i.e., how many times she did it, her physical
interaction with his penis, and “ducking,” were primarily for the purpose of
medical treatment. However, the remaining information in the interview,
including where the car was located, where she and her siblings were
situated in the car, and that she had a shirt around her eyes were
statements drawn from her primarily for a forensic or investigative purpose.
Because these statements were not primarily for medical diagnosis or
treatment they should not have been admitted under the Evid.R. 803(4)
hearsay exception.
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Accordingly, some of the statements KG6 made in the interview did
not fall under the hearsay exception for medical diagnosis or treatment, and
therefore the admission of those statements was error to the extent that
they were offered to prove the truth of the matter they asserted. However,
such error was harmless as the state presented ample evidence other than
the video-recorded interview to sustain Warman’s conviction for the rape of
KG6.
Id. at ¶ 50-52.
{¶ 69} In Remy, 2d Dist. Clark No. 2017-CA-6, 2018-Ohio-2856, this court also
considered whether statements made by child sex-abuse victims were admissible under
Evid.R. 803(4) as statements made for purposes of medical diagnosis or treatment.
Similar to the case at bar, Remy involved three young children who had been sexually
abused by their stepfather. Id. at ¶ 1-8. After disclosing the abuse, the children
underwent forensic interviews at a child-advocacy center. Id. at ¶ 9. On appeal, we
found that the trial court had erred in admitting the children’s statements during the
interview under Evid.R. 803(4), but determined the error was harmless. Id. at ¶ 90-91.
In so holding, we stated the following:
Based on the evidence before us, the primary purpose of [social
worker] Lowe’s forensic interviews with D.C., J.C., and K.C. was for forensic
information-gathering, not for the purpose of medical diagnosis and
treatment. The interviews were coordinated with law enforcement
personnel, Detective Fent observed the interviews from an observation
room, and Lowe consulted with Detective Fent prior to completing the
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interviews that the detective attended. The interviews were not conducted
in a medical facility or through referrals from a medical facility, and there is
no indication that the children gave the statements for purposes of obtaining
a medical diagnosis or treatment. Although referrals to physicians and
counselors were made following certain interviews, the primary goals stated
by Lowe were information-gathering for child safety, not to provide
immediate medical (physical or mental health) care and diagnosis.
Although the recorded videos of Lowe’s interviews were
objectionable, we nevertheless conclude, upon review of the entire record,
that their admission was harmless. As with the statements in [another trial
witness’s] recordings, the allegations by the children in the challenged
interviews with Lowe were repeated to other medical professionals and/or
therapists. Accordingly, the content of the children’s statements would
have been before the jury even absent the video-taped interviews. In
addition, even without the video-recordings, Lowe would have been
permitted to testify about the demeanor of the children during the interviews
and to the referrals that were made as a result of the girls’ statements during
the interviews. Arguably, Lowe might have been permitted to testify about
some of the girls’ allegations to explain why the referrals were made, but
not for the truth of the allegations themselves.
Id. at ¶ 90-91.
{¶ 70} After Remy, this court addressed the same Evid.R. 803(4) issue in State v.
Moore, 2019-Ohio-1671, 135 N.E.3d 1114 (2d Dist.) and noted the following:
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[I]n the Remy opinion * * *, this court did not attempt to parse the
children’s statements to determine whether the primary purpose for some
of them might have been medical diagnosis or treatment. Instead, we
simply conducted a harmless-error analysis. As illustrated by Arnold and
Warman, however, it is also appropriate to consider a child’s statements
one-by-one to see whether any of them fit within the Evid.R. 803(4) hearsay
exception. In fact, in a second Remy case * * * this court addressed the
same interviews in the context of the children’s mother’s appeal from her
own convictions related to her husband’s abuse. In State v. Remy, 2018-
Ohio-2857, 117 N.E.3d 916 (2d Dist.), we explicitly recognized that “some
statements” made during the children’s interviews at the child-advocacy
center “may have been made for purpose of treatment” and, thus, may not
have been objectionable on hearsay grounds. Id. at ¶¶ 64-65
(acknowledging that not all of the children’s statements at the child-
advocacy center were necessarily subject to exclusion as hearsay and
recognizing that some of the statements may have been related to medical
treatment). That is precisely what we have found in Moore’s case.
Moore at ¶ 32.
{¶ 71} Like Arnold and Warman, in Moore we held that the critical aspects of the
child victim’s statements to the interviewer were properly admitted under Evid.R. 803(4)
and that the trial court’s erroneous admission of other hearsay statements by the victim
during her interview at the child-advocacy center constituted harmless error. Id. at ¶ 33.
Specifically, we stated that:
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Based on our review of the record, the trial court did not act
unreasonably to the extent that it allowed the jury to hear [the victim’s]
statements to [the interviewer] about specific sex acts Moore performed on
her. Those statements referenced multiple instances of vaginal
intercourse, oral sex, contact between Moore’s penis and [the victim’s]
“butt,” and touching of her breasts and vagina. The trial court acted within
its discretion in concluding that the primary purpose of these statements
was medical diagnosis or treatment.
We believe the trial court erred, however, insofar as it allowed the
jury to hear all of [the victim’s] statements to [the interviewer]. For
example, [the victim’s] statements about the physical location of the abuse
and the layout of the house, the presence of anyone else, what Moore said
or sounds he made while performing sex acts, and whether [the victim] was
asleep all appear to have been elicited and made primarily for investigatory
purposes. These sorts of contextual statements were not reasonably
necessary for medical diagnosis or treatment and, therefore, were not
admissible under the Evid.R. 803(4) hearsay exception. As the Twelfth
District did in Warman, however, we find that the trial court’s admission of
these non-medical statements constituted harmless error.
(Footnote omitted.) Id. at ¶ 29-30.
{¶ 72} Based on the holdings in Arnold, Moore, and Warman, we find that the
statements A.A.1 and A.A.2 made during their interviews describing the nature of the
sexual abuse they endured were for purposes of medical diagnosis and treatment and
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were therefore admissible under Evid.R. 803(4). For example, A.A.1’s statements during
the interview indicating that Pate rubbed on her private with his fingers going in circles,
put a “blue squiggly thing” on her private, licked her private, and made her suck his private
were all admissible for purposes of medical diagnosis and treatment under Evid.R.
803(4). See State’s Exhibit 5(A). Likewise, A.A.2’s statements during the interview
indicating that Pate put his “thing” in her mouth, touched her “spot” with a wet finger by
putting his finger in his mouth and then dipping it in her “spot”, and that Pate hurt her
when he was “down there,” were also admissible under Evid.R. 803(4). See id.
{¶ 73} Although A.A.1’s and A.A.2’s forensic interviews contained other
statements that did not pertain to medical diagnosis or treatment, upon review, we find
that the admission of those statements was harmless error. This is because A.A.1
reiterated the non-medical statements during her live testimony at trial, and, for reasons
discussed more fully below, all of A.A.2’s non-medical statements were separately
admissible under Evid.R. 807(A). Therefore, all of the statements would have been
presented to the jury regardless of their admissibility under Evid.R. 803(4). Accordingly,
we find that the trial court did not err in applying Evid.R. 803(4) to the statements that
pertained to the nature of Pate’s sexual abuse, and that the other statements improperly
admitted under that rule amounted to harmless error.
2. Evid.R. 807(A)
{¶ 74} Evid.R. 807 “provides an exception to the general exclusion of hearsay
statements when a child under the age of 12 at the time of trial or hearing makes an out-
of-court statement describing any sexual act that is performed on, with, or by the child.”
State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576, 906 N.E.2d 427, ¶ 14, citing
-41-
Evid.R. 807(A). Specifically, that rule provides that:
An out-of-court statement made by a child who is under twelve years
of age at the time of trial or hearing describing any sexual activity performed,
or attempted to be performed, by, with, or on the child or describing any act
or attempted act of physical harm directed against the child’s person is not
excluded as hearsay under Evid.R. 802 if all the following apply:
(1) The court finds that the totality of the circumstances surrounding the
making of the statement provides particularized guarantees of
trustworthiness that make the statement at least as reliable as
statements admitted pursuant to Evid.R. 803 and 804. The
circumstances must establish that the child was particularly likely to be
telling the truth when the statement was made and that the test of cross-
examination would add little to the reliability of the statement. In making
its determination of the reliability of the statement, the court shall
consider all of the circumstances surrounding the making of the
statement, including but not limited to spontaneity, the internal
consistency of the statement, the mental state of the child, the child’s
motive or lack of motive to fabricate, the child’s use of terminology
unexpected of a child of similar age, the means by which the statement
was elicited, and the lapse of time between the act and the statement.
In making this determination, the court shall not consider whether there
is independent proof of the sexual activity or attempted sexual activity,
or of the act or attempted act of physical harm directed against the child's
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person;
(2) The child’s testimony is not reasonably obtainable by the proponent of
the statement;
(3) There is independent proof of the sexual activity or attempted sexual
activity, or of the act or attempted act of physical harm directed against
the child’s person;
(4) At least ten days before the trial or hearing, a proponent of the statement
has notified all other parties in writing of the content of the statement,
the time and place at which the statement was made, the identity of the
witness who is to testify about the statement, and the circumstances
surrounding the statement that are claimed to indicate its
trustworthiness.
Evid.R. 807(A).
{¶ 75} “For the statement to be admitted [under Evid.R. 807(A)], the proponent of
the statement must not be able to reasonably obtain the child’s testimony.” Silverman at
¶ 14, citing Evid.R. 807(A)(2). “[W]hen a court finds that a child is not competent to be a
witness, her testimony is ‘not reasonably obtainable’ pursuant to Evid.R. 807(B)(2).”
(Citations omitted.) State v. Cardosi, 122 Ohio App.3d 70, 75, 701 N.E.2d 44 (2d
Dist.1997); State v. C.W., 2016-Ohio-1558, 63 N.E.3d 709, ¶ 9 (2d Dist.). In this case,
the trial court conducted a voir dire examination and determined that A.A.2 was not
competent to testify at trial. Therefore, because A.A.2’s was not competent to testify at
trial, her testimony was not reasonably obtainable under Evid.R. 807(A).
{¶ 76} Following an evidentiary hearing, the trial court found that all four
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requirements of Evid.R. 807(A) were satisfied in order to permit A.A.2’s forensic interview
to be admitted at trial. Pate, however, contends that the requirement under Evid.R.
807(A)(1) was not satisfied because the statements A.A.2 made during the interview were
unreliable. Pate argues that A.A.2’s statements were unreliable because the
interviewer, Jennifer Knisley, testified that A.A.2 was “scatterbrained” and “chaotic” during
the interview, which prevented Knisley from following the “usual protocol.” Specifically,
Knisley testified that:
[A.A.2 is] five and just developmentally [she] was a little bit more
scatterbrained and kind of chaotic, just—she’s a very active five-year-old
and so she wanted to talk about what she wanted to talk about and not
necessarily follow, you know, this protocol or this structure that I wanted to
go through, so. She demonstrates some of that, was just kind of being all
over and she answers what she wants when she wants.
Trial Trans. Vol. IV, p. 730-731.
{¶ 77} Upon review, we find that Knisley’s testimony does not indicate that A.A.2’s
statements were unreliable. When determining the reliability of A.A.2’s statements, the
trial court thoroughly considered all of the circumstances surrounding the forensic
interview, including the factors listed in Evid.R. 807(A)(1). Specifically, the trial court
found that A.A.2’s statements were elicited by means of a non-leading forensic interview
that showed spontaneity. Although we find that there were some instances where
Knisley had to use leading questions in order to guide A.A.2 back to the topic being
discussed and repeated several questions due to A.A.2’s lack of focus, the video of the
interview as a whole establishes that the interview was neutral and that Knisley did not
-44-
improperly influence A.A.2’s responses. The video also shows that A.A.2 would at times
spontaneously provide unsolicited details about the sexual abuse by Pate. The video
further supports the trial court’s finding that there were no material, internal consistencies
in A.A.2’s allegations.
{¶ 78} The trial court also reasonably found that, due A.A.2’s young age, A.A.2 did
not have the cognitive wherewithal to connive a plan to fabricate allegations of sexual
abuse against Pate. In addition, the trial court reasonably found that A.A.2’s use of the
term “sex” during the interview and her ability to physically imitate sex acts was not
something a five-year old would be expected to know or reference. The trial court further
found that the guarantees of trustworthiness that one would expect in statements
admitted under Evid.R. 803(4) were present in the forensic interview. Based on all of
these findings, the trial court reasonably determined that A.A.2’s forensic interview had
particularized guarantees of trustworthiness that made it sufficiently reliable.
{¶ 79} Because the trial court’s findings as to the reliability of A.A.2’s statements
are reasonable, and because the other requirements under Evid.R. 807(A) are not in
dispute, we do not find that the trial court abused its discretion in admitting A.A.2’s forensic
interview under the hearsay exception in Evid.R. 807(A).
The Cumulative Forensic Interview Evidence Was Not Prejudicial
{¶ 80} Pate also contends that since A.A.1 testified about the allegations of sexual
abuse at trial, the trial court erred in admitting her forensic interview because it was
cumulative to her testimony and thus prejudicial. We again disagree.
{¶ 81} “ ‘ “Cumulative evidence” ’ is additional evidence of the same kind to the
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same point.” State v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 41, quoting
Kroger v. Ryan, 83 Ohio St. 299, 94 N.E. 428 (1911), syllabus. “Pursuant to Evid.R.
403(B), it is within the sound discretion of the trial court to exclude cumulative evidence
only when the probative value of the evidence is substantially outweighed by the danger
of a material prejudice to the defendant.” State v. Arrone, 2d Dist. Greene No. 2005-CA-
89, 2006-Ohio-4144, ¶ 152. “The mere fact that evidence is repetitive will not be
considered reversible error unless the defendant was unfairly prejudiced thereby.” State
v. Baker, 2d Dist. Montgomery No. 23933, 2011-Ohio-1820, ¶ 16, quoting State v. Smith,
80 Ohio St.3d 89, 108-109, 684 N.E.2d 668 (1997). “The pertinent question is whether
the evidence was unfairly prejudicial to the defendant, not whether it was unfavorable to
him.” Id.{¶ 82} Upon review, we find that A.A.1’s interview was cumulative in that there was
nothing in the admitted portion of A.A.1’s forensic interview that was not covered by
A.A.1’s trial testimony. The record, however, indicates that the interview was admitted
to assist Knisley in explaining how she analyzed the context of A.A.1’s allegations, i.e.,
whether the allegations had characteristics of innocent touching or sexual abuse. See
Trial Trans. Vol. IV, p. 723 and 728-729. Therefore, while the admission of A.A.1’s
interview may have been cumulative, it was not needlessly cumulative. Regardless,
Pate failed to demonstrate how he was materially prejudiced by the cumulative nature of
the evidence. Pate simply argued that A.A.1’s interview merely corroborated her trial
testimony. While the corroboration may have been unfavorable to Pate, it was not
unfairly prejudicial because even if A.A.1’s interview had not been admitted, there was an
abundance of other evidence presented at trial that corroborated A.A.1’s testimony.
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{¶ 83} Because A.A.1’s and A.A.2’s forensic interviews were admissible under the
hearsay exceptions in Evid.R. 803(4) and Evid.R. 807(A), and because A.A.1’s forensic
interview was not prejudicially cumulative, Pate’s second assignment of error is overruled.
Third Assignment of Error
{¶ 84} Under his third assignment of error, Pate contends that his convictions for
six counts of raping A.A.1 and four counts of raping A.A.2 were not supported by sufficient
evidence and were against the manifest weight of the evidence. We disagree.
{¶ 85} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.{¶ 86} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction was against the manifest weight of the evidence, the appellate court
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must review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, the trier
of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61,
2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 87} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). However, we may determine which of several competing
inferences suggested by the evidence should be preferred. A judgment of conviction
should be reversed as being against the manifest weight of the evidence only in
exceptional circumstances. Martin at 175.
{¶ 88} As previously noted, Pate is challenging his convictions for six counts of
raping A.A.1 and four counts of raping A.A.2. Each of the rape counts was in violation
of R.C. 2907.02(A)(1)(b) and included a specification that the victim was less than 10
years of age. See R.C. 2907.02(B). Pursuant to R.C. 2907.02(A)(1)(b): “No person shall
engage in sexual conduct with another who is not the spouse of the offender * * * when
* * * [t]he other person is less than thirteen years of age, whether or not the offender
knows the age of the other person.”
{¶ 89} The term “sexual conduct” is defined as “vaginal intercourse between a
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male and female; anal intercourse, fellatio, and cunnilingus between persons regardless
of sex; and, without privilege to do so, the insertion, however slight, of any part of the
body or any instrument, apparatus, or other object into the vaginal or anal opening of
another.” R.C. 2907.01(A). “ ‘Fellatio is committed by touching the male sex organ with
any part of the mouth.’ ” State v. Hudson, 2d Dist. Montgomery No. 22793, 2009-Ohio-
2776, ¶ 42, quoting State v. Long, 64 Ohio App.3d 615, 618, 582 N.E.2d 626 (9th
Dist.1989). “[C]unnilingus is completed by the placing of one’s mouth on the female’s
genitals.” State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 86.
Cunnilingus “generally refers to the act of licking to stimulate the vulva or clitoris with the
lips or tongue.” State v. Gossard, 2d Dist. Montgomery No. 19494, 2003-Ohio-3770, ¶ 14.
{¶ 90} Pate contends that there was insufficient evidence to support a finding that
he engaged in sexual conduct with A.A.1 and A.A.2. The following evidence, however,
established otherwise.
Rape of A.A.1
{¶ 91} During trial, A.A.1 referred to her vagina as her “private.” A.A.1 testified
that she used her private for “pottying” and indicated that it was located in her lap area.
Trial Trans. Vol. IV, p. 639-640. A.A.1 also referred to Pate’s penis as his “private,” as
she testified that boys use their private for “pottying” and indicated that a boy’s private is
located between his legs. Id. Using this terminology, A.A.1 testified to several incidents
of cunnilingus, digital penetration, and fellatio. Each of those incidents are discussed in
detail below.
1. Cunnilingus
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{¶ 92} Three of the six counts of rape related to A.A.1 involved allegations of Pate
performing cunnilingus. In support of these counts, A.A.1 testified that Pate licked on
her private in the “back room” and identified the “back room” as Pate’s bedroom. Id. at
635 and 646. A.A.1 testified that when it happened, she would be lying on her belly on
Pate’s side of the bed with her clothes off. Id. at 646-647. A.A.1 also testified that when
Pate licked her private it would be on her skin. Id. at 646. A.A.1 additionally testified
that Pate licked on her private in the same manner while she was on the flower chair in
Pate’s front room/living room. Id. at 643, 646-648.
{¶ 93} A.A.1 further testified that Pate licked on her private while she was in his
van and truck. Id. at 648-651. A.A.1 testified that after Pate picked her up from school,
he would drive her to the river where no one else was around. Id. at 648-649. A.A.1
testified that when they got to the river, Pate would get out of his vehicle, come around to
the front-passenger seat where she was sitting, and “lick on [her] private.” Id. at 649-
650. A.A.1 testified that Pate instructed her how to put her legs up and once again
indicated that when Pate licked on her private it would be on her skin. Id. at 651-653.
{¶ 94} When viewed in a light most favorable to the State, the foregoing testimony
was sufficient to establish at least three counts of rape by cunnilingus in violation of R.C.
2907.02(A)(1)(b). The testimony established that Pate performed cunnilingus on A.A.1
on at least three separate occasions while: (1) in his bedroom, (2) in the living room and
(3) inside his vehicle by the river.
2. Digital Penetration
{¶ 95} Two of the six counts of rape related to A.A.1 involved allegations of Pate’s
digitally penetrating A.A.1’s vagina. In support of these counts, A.A.1 testified that Pate
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rubbed on her private using two of his fingers. Trial Trans. Vol. IV, p. 653. A.A.1
testified that Pate’s fingers “would go in circles” on her skin. Id. At one point, A.A.1
testified that Pate only touched “outside” her body. Id. at 652. However, when A.A.1
was asked to demonstrate on a tissue box how Pate touched her with his fingers, the
record indicates that A.A.1’s fingers went slightly inside the tissue box during the
demonstration. Id. at 654. A.A.1 testified that Pate did this type of touching “[i]n the
living room, back room, van, and truck.” Id. at 654. A.A.1 specifically recalled it
happening in the living room while she was “sitting in [Pate’s] lap.” Id. at 654. A.A.1
testified that it would happen when they were sitting on “the flower chair” and on “the blue
chair.” Id. at 655. A.A.1 testified that it felt “weird.” Id.
{¶ 96} The insertion, however slight, of any part of the body into the vaginal
opening of another constitutes “sexual conduct” for purposes of establishing rape under
R.C. 2907.02(A)(1)(b). R.C. 2907.01(A). Therefore, when viewed in a light most
favorable to the State, we find that the foregoing testimony elicited from A.A.1 was
sufficient to establish at least two counts of rape by digital penetration. Specifically, the
testimony established that Pate digitally penetrated A.A.1 on two occasions in the living
room, i.e. on the flower chair and on the blue chair. The testimony additionally
established that Pate digitally penetrated A.A.1 while in his bedroom and vehicle.
Accordingly, there was sufficient evidence of at least two instances of digital penetration.
Pate’s claim otherwise again lacks merit.
3. Fellatio
{¶ 97} The remaining count of rape related to A.A.1 involved an allegation that
Pate made A.A.1 perform fellatio on him. In support of this count, A.A.1 testified that
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Pate “would make [her] put [her] mouth on his private spot.” Trial Trans. Vol. IV, p. 659.
A.A.1 testified that Pate instructed her how to do it by showing her a video on his cell
phone of “girls sucking on the boys’ things.” Id. at 659, 661. A.A.1 testified that Pate
would put his private spot in her mouth while in the living room and in the back room. Id.
at 660. A.A.1 specifically recalled an incident in the front room when “something white”
came out of Pate’s private spot after he put his private in her mouth. Id. A.A.1 testified
that the white substance “squirted out” on the floor and that Pate said “it was juice.” Id.
at 660- 661.
{¶ 98} When viewed in a light most favorable to the State, the foregoing testimony
was sufficient to establish one count of rape by fellatio in violation of R.C.
2907.02(A)(1)(b).
Rape of A.A.2
{¶ 99} As previously discussed, because five-year-old A.A.2 was found to be
incompetent to testify at trial, a portion of A.A.2’s forensic interview was played for the
jury and admitted into evidence pursuant to Evid.R. 807(A). During the interview, A.A.2
initially only described Pate’s abuse of A.A.1. However, A.A.2 eventually began to
include herself in the abuse and described two instances of fellatio. In addition, A.A.1
provided testimony at trial indicating that she saw Pate perform cunnilingus on A.A.2. All
of these incidents are discussed in detail below.
1. Fellatio
{¶ 100} Two of the four counts of rape related to A.A.2 involved allegations of
fellatio. After telling the interviewer about how Pate touched A.A.1 with his genital area,
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A.A.2 made the following unsolicited comment: “Him does it sometimes and we have to
put it in [her] mouth.” State’s Exhibit 5(A), 4:55:08 p.m. to 4:55:56 p.m. When the
interviewer clarified and asked A.A.2 if Pate did that to her, A.A.2 first shook her head no
and then responded: “Yeah, but we say no all the time.” Id. at 4:55:57 p.m. to 4:56:06
p.m. When the interviewer asked A.A.2 to tell her about Pate putting “his spot,” i.e., his
genitalia, in her mouth, A.A.2 indicated that Pate did it even though she did not want him
to. Id. at 4:58:12 p.m. to 4:58:21 p.m. A.A.2 then said “We tell him to stop” and
indicated that Pate stopped. Id. at 4:57:42 p.m. to 4:58:43 p.m. When the interviewer
asked A.A.2 to clarify what the “thing” or “spot” was on Pate’s body, A.A.2 said that Pate’s
thing was “in the middle.” Id.
{¶ 101} The interviewer then asked A.A.2 where she was located when Pate puts
his “thing” in her mouth and A.A.2 responded: “At Pawpaw and Mammaw’s.” Id. at
4:58:48 p.m. to 4:58:53 p.m. When asked where in Pawpaw and Mammaw’s house,
A.A.2 responded: “In their bedroom.” Id. at 4:58:54 p.m. to 4:58:59 p.m. A.A.2
thereafter indicated that Pate only did it to her and A.A.1, not to A.A.3. Id. at 4:59:00
p.m. to 4:59:16 p.m.
{¶ 102} Later in the interview, A.A.2 indicated that Pate showed her pornographic
videos. Id. at 5:06:37 p.m. to 5:07:11 p.m. When the interviewer asked what the people
were doing in the videos, A.A.2 said “all these girls do this” and then A.A.2 physically
imitated oral sex by opening her mouth and moving her head. Id. at 5:06:48 p.m. to
5:07:00 p.m. A.A.2 thereafter clarified that “they are doing it to the boy.” Id. at 5:07:03
p.m. to 5:07:13 p.m. A.A.2 said that the people in the videos were “not kids they’re
grownups.” Id. at 5:07:14 p.m. to 5:07:23 p.m. When asked how Pate showed her the
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videos, A.A.2 said that “they were doing it on his phone.” Id. at 5:07:45 p.m. to 5:08:06
p.m. A.A.2 also shook her head yes when the interviewer asked her whether Pate had
ever made her do the things shown in the videos. Id. at 5:08:15 p.m. to 5:08:20 p.m.
{¶ 103} When viewed in a light most favorable to the State, the foregoing evidence
was sufficient to establish two counts of rape by fellatio in violation of R.C.
2907.02(A)(1)(b). A.A.2’s comments indicating that she said no to fellatio all the time
and that Pate did it anyway suggested that Pate made her perform fellatio on more than
one occasion. A.A.2 also specifically indicated that Pate made her perform fellatio in his
bedroom. In addition, A.A.2’s comments indicating that Pate showed her videos on his
cell phone of females performing oral sex on males and how Pate made her do the things
in the videos indicated a time that Pate made her perform fellatio on him while showing
her a pornographic video on his cell phone. We further note that A.A.1 testified that she
observed Pate do everything to A.A.2 that he did to her, and A.A.1 specifically testified
that Pate would make her (A.A.1) perform fellatio in the living room and in his bedroom.
Trial Trans. Vol. IV, p. 660 and 664-665. Based on the foregoing statements and
testimony, we find that there was sufficient evidence in the record supporting at least two
separate instances of fellatio involving A.A.2.
2. Cunnilingus
{¶ 104} The remaining two counts of rape related to A.A.2 involve allegations of
cunnilingus. At trial, A.A.1 testified that she observed Pate lick A.A.2’s private in the
living room and his bedroom. Trial Trans. Vol. IV, p. 666-667. A.A.1 testified that this
would happen after school and during sleepovers. Id. at 667. A.A.1 recalled a specific
incident when this happened in the living room, as A.A.1 testified that A.A.2 was on her
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belly leaning over the arm of the flower chair and Pate was sitting on the “rolling chair.”
Id. A.A.1 also testified that she recalled seeing Pate lick A.A.2’s private in the back room
while on his side of the bed. Id. at 667-668.
{¶ 105} Again, when viewed in a light most favorable to the State, the foregoing
testimony was sufficient to establish two counts of rape by cunnilingus in violation of R.C.
2907.02(A)(1)(b). A.A.1’s testimony sufficiently established that Pate performed
cunnilingus on A.A.2 in his bedroom and living room.
{¶ 106} Based on all the foregoing evidence, the jury could have reasonably
determined that Pate engaged in six incidents of sexual conduct with A.A.1, as well as
four incidents of sexual conduct with A.A.2, thereby committing a total of ten counts of
rape of a minor less than ten years of age in violation of R.C. 2907.02(A)(1)(b) and (B).
In reaching its verdict, the jury was free to believe all, part, or none of the testimony of
each witness and to draw reasonable inferences from the evidence presented. State v.
Hunt, 2d Dist. Darke No. 2018-CA-9, 2019-Ohio-2352, ¶ 24. After weighing all the
evidence, including but not limited to the material discovered on Pate’s cell phone, E.K.’s
observations of Pate’s interactions with the girls, and E.K.’s own allegations of abuse, we
cannot say that the jury lost its way or created a manifest miscarriage of justice in
believing A.A.1’s and A.A.2’s allegations of sexual abuse. Simply because the jury
chose to believe A.A.1’s and A.A.2’s allegations did not mean that the verdict was against
the manifest weight of the evidence. Therefore, in addition to being supported by
sufficient evidence, Pate’s convictions for six counts of raping A.A.1 and four counts of
raping A.A.2 were not against the manifest weight of the evidence.
{¶ 107} Pate’s third assignment of error is overruled.
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Fourth Assignment of Error
{¶ 108} Under his fourth assignment of error, Pate contends that the State
committed prosecutorial misconduct by pursuing joinder of the offenses related to E.K.
and A.A.1, A.A.2 and A.A.3. Pate also contends that the State committed prosecutorial
misconduct by presenting A.A.1’s and A.A.2’s forensic interviews, the blue vibrator found
in Pate’s residence, and E.K.’s corroborating accusations as evidence at trial. We
disagree.
{¶ 109} “When reviewing a claim of prosecutorial misconduct, our inquiry is
twofold: we must first decide whether the prosecutor’s actions were improper, and if so,
we consider whether the conduct prejudicially affected the defendant’s substantial rights.”
State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 115, citing
State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 228. “ ‘The
touchstone of due process analysis * * * is the fairness of the trial, not the culpability of
the prosecutor.’ ” Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71
L.Ed.2d 78 (1982). “Thus, ‘[t]he relevant question is whether the prosecutors’ [conduct]
‘ “so infected the trial with unfairness as to make the resulting conviction a denial of due
process.” ’ ” Id., quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91
L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868,
40 L.Ed.2d 431 (1974). “Where it is clear beyond a reasonable doubt that the trier of fact
would have found the defendant guilty, even absent the alleged misconduct, the
defendant has not been prejudiced, and his conviction will not be reversed.” State v. St.
John, 2d Dist. Montgomery No. 27988, 2019-Ohio-650, ¶ 110, citing State v. Underwood,
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2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.
{¶ 110} With regard to joinder, pursuant to Crim.R. 8(A), the State was permitted
to pursue joinder of the offenses in question. Therefore, contrary to Pate’s claim
otherwise, pursuing joinder was not improper. In so holding, we note that Pate has never
argued that joinder was improper, as Pate conceded in the court below that these
offenses were properly joined in a single indictment pursuant to Crim.R. 8(A). See Reply
to State’s Motion Contra Defendant’s Motion to Sever (Sep. 24, 2019), p. 2. Pate instead
filed a Crim.R. 14 motion to sever the offenses on grounds of prejudice, which, for the
reasons discussed under Pate’s first assignment of error, was properly denied by the trial
court.
{¶ 111} As discussed under Pate’s second assignment of error, it was also not
improper for the State to present A.A.1’s and A.A.2’s forensic interviews as evidence at
trial, as the interviews were admissible under Evid.R. 803(4) and Evid.R. 807(A). Even
though portions of A.A.1’s interview contained statements that did not fall under Evid.R.
803(4), and even though the statements in A.A.1’s interview were cumulative to her trial
testimony, as previously discussed, Pate was not unfairly prejudiced by those harmless
errors.
{¶ 112} Concerning the blue vibrator, Pate asserts that the State knew A.A.1 would
not recognize it as the one Pate used on her, yet asked her to identify a picture of it at
trial anyway as a means to inflame the jury’s emotions. There is, however, no indication
on the record that the State knew A.A.1 would not recognize the blue vibrator. In any
event, Pate was not prejudiced by the State’s conduct because the fact that A.A.1 did not
recognize the blue vibrator was beneficial to his defense. We cannot say that the State’s
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reference to the blue vibrator, which A.A.1 did not recognize, affected the jury’s verdict.
{¶ 113} Finally, we also fail to see how it was improper for the State to admit
evidence of E.K.’s corroborating allegations of sexual abuse at trial. E.K.’s allegations
were admissible not only with respect to the offenses for which she was the victim, but
also with respect to the offenses involving A.A.1, A.A.2, and A.A.3, as we have already
determined that E.K.’s testimony regarding her abuse would be admissible as other-acts
evidence under Evid.R. 404(B). Simply because E.K.’s testimony about Pate’s sexual
abuse tended to corroborate A.A.1’s and A.A.2’s allegations of sexual abuse did not make
her testimony on that subject improper.
{¶ 114} Because the conduct challenged by Pate was not improper or prejudicial,
Pate has not established a claim of prosecutorial misconduct. Therefore, his fourth
assignment of error is overruled.
Fifth Assignment of Error
{¶ 115} Under his fifth assignment of error, Pate contends that the cumulative
effect of all the errors in this case deprived him of a fair trial and warrants a reversal of
his conviction. We again disagree.
{¶ 116} Under the doctrine of cumulative error, “[s]eparately harmless errors may
violate a defendant’s right to a fair trial when the errors are considered together.” State
v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 40, citing State v. Madrigal,
87 Ohio St.3d 378, 397, 721 N.E.2d 52 (2000). “In order to find cumulative error, we first
must find that multiple errors were committed at trial.” Id. “A conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial even
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though each of the numerous instances of trial-court error does not individually constitute
cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d
865, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus.
{¶ 117} In this case, the only harmless errors committed at trial were that portions
of A.A.1’s forensic interview were admitted into evidence despite being cumulative and
despite the interview’s containing hearsay statements that did not fall under the medical
diagnosis or treatment hearsay exception in Evid.R. 803(4). After considering these few
harmless errors together, we do not find that they were so pervasive as to deprive Pate
of a fair trial. Accordingly, there is no cause for reversal under the doctrine of cumulative
error.
{¶ 118} Pate’s fifth assignment of error is overruled.
Conclusion
{¶ 119} Having overruled all five assignments of error raised by Pate, the judgment
of the trial court is affirmed.
.............
HALL, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Johnna M. Shia
Hon. Mary Lynn Wiseman