State v. R.W. , 2022 Ohio 2771 ( 2022 )

[Cite as State v. R.W., 2022-Ohio-2771.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110858
v. :
R.W., SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 11, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641796-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Debora Brewer and Melissa Riley, Assistant
Prosecuting Attorneys, for appellee.
Tim Young, Ohio State Public Defender, and Craig M.
Jaquith, Assistant State Public Defender, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, R.W., Sr., appeals his convictions and sentence
following a jury trial. For the reasons that follow, we affirm.1
I. Procedural Background
In July 2019, appellant was named in an eight-count indictment
charging him with rape, a first-degree felony violation of R.C. 2907.02(A)(2) (Count
1); rape, a first-degree felony violation of R.C. 2907.02(A)(1)(c) (Count 2); rape, a
first-degree felony violation of R.C. 2907.02(A)(2) (Count 3); rape, a first-degree
felony violation of R.C. 2907.02(A)(1)(c) (Count 4); burglary, a second-degree felony
violation of R.C. 2911.12(A)(1) (Count 5); and sexual battery, a third-degree felony
violation of R.C. 2907.03(A)(5) (Count 6); retaliation, a third-degree felony violation
of R.C. 2921.05(B) (Count 7); and intimidation of a crime victim or witness, a first-
degree misdemeanor violation of R.C. 2921.04(A) (Count 8). Appellant pleaded not
guilty, and the trial court assigned him counsel.
Early in the pretrial stages of the case, appellant asserted his desire to
represent himself. As such, he was referred to the court’s psychiatric clinic for a
competency evaluation. The competency report concluded that appellant was both
competent to stand trial and proceed without counsel. After extensive inquiry by
two different judges and several refusals to proceed with certain attorneys acting as
standby counsel, he executed the necessary documentation waiving counsel. On
1 Pursuant to Loc.App.R. 13.2(c) and (d) of the Eighth District Court of Appeals,
this court uses the initials of the appellant because using his actual name is likely to reveal
the identity of the juvenile sexual-assault victim and other juvenile witnesses.
July 19, 2021, appellant, pro se, commenced a jury trial before a retired judge sitting
by assignment, with his approved stand-by counsel.
II. Jury Trial
The state’s first witness was the victim, appellant’s then 15-year-old
daughter (“the victim”). She stated that in 2019 she lived with her mother, sister,
brother, her father’s girlfriend, and her father (appellant). She stated that she slept
in the basement and on occasion appellant would sleep in the bed with her. During
the night of May 13-14, 2019, while her mother was hospitalized following a stroke,
the victim awoke in her bed to her appellant on top of her, “grinding” on her. She
stated that her pants were pulled down and she was laying on her stomach. She felt
him reach under her and touch her vagina. The victim testified that appellant then
put his penis in her vagina. She stated that it hurt and she did not know how long
the assault went on, but when he stopped, he got a rag, cleaned both of them up, and
went upstairs. She told the jury that after the assault she sat in bed crying, trying to
go back to sleep.
The victim stated that she got up and appellant took her and her
siblings to school that morning. She stated that she disclosed the sexual assault to a
friend of hers at recess, who in turn told the assistant principal. After this disclosure,
she stated that she was taken to the hospital for an examination and spoke to the
police, an investigator, and a counselor about the sexual assault.
The victim testified that this incident was not the only time appellant
assaulted her in her bedroom. She told the jury about another incident that occurred
in February 2019, when she awoke to appellant putting his penis in her vagina. On
cross-examination, she stated that this other incident occurred in April 2019. The
victim testified that she eventually told her younger sister about what their father
did, but they kept it a secret.
On cross-examination, the victim admitted that appellant set rules
and expectations for her and her younger sister, concerning chores, cellphone usage,
what music they listened to, and with whom they socialized. Appellant often used
the word “controlling” and “disciplinarian” when questioning the victim about living
with appellant. The victim admitted that appellant’s expectations were in contrast
to her mother’s approach on parenting. She agreed that she “didn’t appreciate
[appellant’s] controlling ways,” and that she “liked things a lot better how they were
before [appellant] came into [her] life.” (Tr. 587.) She testified that at the time of
sexual assault, she had only lived with appellant since late 2018, but prior to that
only “off and on for a total of 15 months.” (Tr. 584.)
The victim stated that after the allegations, appellant no longer lived
with them and was not permitted to be at the home. However, during the late-night
hours of June 20, 2019, the victim discovered appellant in their home. She stated
that she called the police — the 911 recording was played for the jury. During the
recording, the victim tells the operator that appellant was not supposed to be at the
home because appellant “molested” her. She testified that during this incident,
appellant approached her, questioning why she was “lying on him.” She stated he
made her feel scared and afraid he was going to hurt her. In fact, when appellant
asked her how he had hurt her, the victim responded, “he’s left me with trauma.”
(Tr. 644.)
Twyla West testified she was the assistant principal at Adlai
Stevenson school back in 2018. She recalled the victim appearing in her office with
another student on May 14, 2019, and informing her that the victim was sexually
assaulted by appellant. According to West, the victim appeared very distraught,
upset, and was crying as she described what occurred earlier that day. She stated
after speaking with the victim, she contacted the Cuyahoga County Division of
Children and Family Services (“CCDCFS”) and the police, who later transported the
victim to the hospital.
Michael Bokmiller, a social worker with CCDCFS, testified as to his
investigation into the sexual abuse allegation. Bokmiller testified he reported to
Adlai Stevenson school and met with the victim who advised him what had occurred.
He also spoke with appellant, who denied the allegations, attributing them to the
fact that he had recently taken his daughters’ cell phones from them. He also
testified that he performed forensic interviews at the Child Advocacy Center of both
the victim and her younger sister. Based on his investigation, he deemed the
allegations “substantiated” and recommended that the victim and her family seek
counseling.
Kate Burns, a Sexual Assault Nurse Examiner (“SANE”) with
University Hospitals, testified that she treated the victim and performed the Sexual
Assault examination. She testified that she collected samples for DNA analysis, and
although the clothing the victim wore during the assault was not obtained, she
retained the underwear that the victim wore to the hospital. Burnes indicated upon
her physical exam she found some redness on the lower part of the victim’s hymen,
but otherwise her examination did not reveal any other abnormalities.
BCI forensic analysts, Andrew Sawin and Hallie Dreyer, testified that
they tested the items from the victim’s rape kit. Sawin testified that the standard
DNA testing of the anal and vaginal swabs did not indicate a DNA profile foreign to
the victim’s profile. Testing from the victim’s underwear revealed an unidentifiable
minor profile that could be attributed to a male. Sawin testified that the presence of
this minor profile could have occurred during laundry or other household transfers.
Dreyer testified that she analyzed the Y-STR testing, which solely
focuses on the presence of male DNA. She stated that the testing confirmed the
presence of male DNA. Regarding the vaginal and anal swabs, the male profile was
of insufficient quality to include or exclude appellant as the contributor. However,
appellant was specifically excluded as the contributor to the male DNA profile found
on the swab taken from the victim’s buttocks.
The victim’s younger sister, who was 14-years old at the time of trial,
testified that on an unspecified date, she was sleeping in bed with the victim and
appellant, who is also her father. She recalled that movement in the bed caused her
to wake. She testified that she saw her father “shaking” himself on top of the victim
with his pants down. She stated that her sister appeared to be sleeping, and
appellant was a few inches on top of her sister. She testified that she asked her father
to “stop” and then asked him if she could sleep next to her sister. She stated that she
was unsure what occurred but it made her feel uncomfortable. She testified that her
sister later told her about the sexual assaults, but that she kept it a secret.
On cross-examination, the younger sister admitted that appellant was
controlling, but denied fabricating the allegations or being untruthful. She denied
that the movement in the bed was merely appellant’s habit of shaking his legs when
trying to get comfortable. Additionally, she denied that appellant ever touched her
inappropriately and admitted that if appellant had not moved in with them, “none
of this would be happening right now.” (Tr. 779.)
Ashley Martinez testified she is a licensed counselor at Frontline
Services. She stated that the victim was referred to her for treatment by CCDCFS.
Martinez stated that during the victim’s assessment, she learned there had been an
alleged sexual assault and molestation alleged involving the victim’s father. She
stated that the victim reported symptoms regarding distress, stomach aches,
hypervigilance, and sleeping with a knife in her bed. Martinez testified that after
evaluating the victim, she made a diagnosis stating that the victim had symptoms
consistent with post-traumatic stress disorder (“PTSD”) as “a result of the sexual
assaults.”
The victim’s mother testified that she is also the mother of the victim’s
younger sister. She stated that she moved into a house with her children and
appellant in late 2018. She testified that the appellant would often sleep in the
basement with the victim, which she found odd. Mother stated that in May 2019,
while hospitalized from a stroke, she received a call from a school official reporting
that her daughter had reported being sexually assaulted by the appellant.
Mother also testified as to her relationship with appellant and about
appellant’s relationship with the victim. She described to the jury appellant’s
controlling behavior both with her and their children. It was revealed during her
testimony that appellant had a criminal history, which included prostitution and
that he was a registered sex offender. As for appellant and the victim’s relationship,
she stated that appellant always favored the victim and treated her differently from
the other children. She denied coaching or encouraging her daughters to lie or
fabricate these allegations.
Appellant elected not to testify, and attempted to call four witnesses.
He tried to call the victim’s mother, as a defense witness, after she had testified as a
state’s witness. The trial court, however, did not allow him to call her as witness
finding that she previously testified and was subject to extensive cross-examination.
Appellant’s first witness was Maple Heights Police Officer Derek
Jividen, who testified regarding a notation that he had made that indicated that
preliminary DNA testing by BCI showed “[n]o DNA profile foreign to [the victim.].”
The second defense witness was appellant’s granddaughter, who testified that
appellant had been like a father to her and that she had never known him to abuse
children. And the final defense witness, Brittani Troyer, a forensic analyst at BCI,
testified regarding a lab report that reflected that DNA testing showed that the
results were inconclusive on the vaginal samples and anal samples, but that
appellant was excluded as being a possible contributor to male DNA profile
discovered on the victim’s buttocks swabs.
The jury found appellant not guilty of Counts 1 and 2, but guilty of the
remaining counts. The trial court concluded that Counts 3 and 4, and Counts 7 and
8 were allied offenses; the state elected that the court sentence appellant on Counts
3 and 7. Over objection, the trial court imposed a prison term under the Reagan
Tokes Law of eight to twelve years on Count 3, 6 years on Count 5, four years on
Count 6, and to time served on Count 7. All counts were ordered consecutive to each
other for a total prison sentence of 18 to 22 years.
Appellant now appeals, raising seven assignments of error.
III. The Appeal
A. Jail Clothing
In his first assignment of error, appellant contends that the trial court
erred when it allowed the jurors to view him in orange jail clothing for one full day
during the trial, which included the pro se presentation of his closing argument.
Under this assignment of error, he raises two issues — (1) whether the trial court
made a reasonable effort to ensure that he did not appear before the jury dressed in
orange jail clothing; and (2) whether the trial court and the state engaged in ex parte
communication regarding appellant’s appearance at trial in orange jail clothing. He
claims that his appearance in jail clothing creates reasonable doubt whether the
jurors were able to deliberate objectively and fairly.
1. Appearance in Jail Clothing
The United States Supreme Court has held that a defendant’s right to
due process may be violated where the defendant stands trial before a jury while
dressed in identifiable jail clothes. Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct.
1691, 48 L.Ed.2d 126 (1976). The court recognized that “the constant reminder of
the accused’s condition implicit in such distinctive, identifiable attire may affect a
juror’s judgment.” Id. at 504; see also Holbrook v. Flynn, 475 U.S. 560, 568, 106
S.Ct. 1340, 89 L.Ed.2d 525 (1986). The court, however, declined to establish a
bright-line rule requiring a conviction to be reversed where the defendant appeared
before the jury in jail clothing, recognizing that a defendant might choose to wear
identifiable jail clothing “in the hope of eliciting sympathy from the jury.” Estelle at
507-508.
To establish that a constitutional violation occurred, the defendant
must show that she or he was compelled to stand trial before a jury while dressed in
identifiable jail clothing. State v. Trowbridge, 1st Dist. Hamilton No. C-110541,
2013-Ohio-1749, ¶ 28. Even if such showing is made, the defendant must still
demonstrate that he was prejudiced by such compulsion. In State v. Grissom, 6th
Dist. Erie No. E-99-029, 2000 Ohio App. LEXIS 4977 (Oct. 27, 2000), the defendant
claimed that his appearance in jail clothing prejudiced him. The Sixth District
observed that the jury did not convict appellant of all the charges against him, which
indicated that the jury “carefully considered the evidence relating to the charges
rather than making a blanket decision that appellant was guilty because he was
dressed in jail clothing at trial.” Id. at 8. Following Grissom, this court concluded
that a jury’s decision not to convict a defendant of all charges indicates the jury
carefully reviewed the evidence presented and that a brief appearance in prison
clothing did not bias the jury. State v. Hawthorne, 8th Dist. Cuyahoga No. 102689,
2016-Ohio-203, ¶ 30.
In this case, appellant appeared in civilian clothing during the first
five days of trial. On the morning of the July 26, 2021, the fifth day of trial, appellant
expressed his discomfort with the restraints around his ankles. He made these
statements in front of the jury and revealed to the jury that his ankles were shackled.
[APPELLANT]: Your Honor, these things hurt my feet. These are
hurting my feet. They’re too tight. (Indicating.)
THE COURT: The jury will disregard that showing he just put on.
Thank you.
[APPELLANT]: And I have had them on all week, so * * *.
Emphasis added. (Tr. 1213.)
Later that day, appellant collapsed in front of the jury during his
examination of his witness. EMS was called and transported him to the hospital.
Trial was postponed until the following day.
The next day, appellant appeared in court seated in a wheelchair and
wearing jail clothing. Outside the presence of the jury, the prosecutor stated that
earlier that day, appellant refused to get off the floor in the jail medical area to take
Ibuprofen and change his clothing. The prosecutor stated that appellant would not
come into the courtroom, so they placed him in restraints. The trial court noted that
appellant was not currently in restraints, but handcuffed while seated in a
wheelchair. The state asked the court to make a finding that him appearing in jail
clothing and seated at counsel table was the least restrictive approach to allow the
parties to proceed with trial.
Appellant disagreed with the state’s assessment, stating that he was
in extreme pain and that he “did not refuse to dress in my clothes. They didn’t try
to dress me in any clothing. They put these oranges on me, and I don’t want the jury
to see me in these oranges.” (Tr. 1248-1249.)
Trial reconvened. In the presence of the jury, appellant stated “[t]his
is inhumane to be treated this way. (Defendant moaning).” (Tr. 1251.) The trial
court then advised the jury to “understand that you are not to draw any conclusions
because of the attire of the Defendant here. So, that’s it.” (Tr. at id.) The record
reflects that appellant continued making statements about his medical condition,
claiming that he was in extreme pain and he was refused medical assistance and
medication. According to appellant, he could not continue with his direct
examination of his granddaughter due to his condition.
We find that appellant was not denied his right to due process by
appearing in jail clothing because no prejudice has been shown. First, the judge told
the jurors to disregard the fact that appellant was shackled and wearing jail clothing,
and we must presume that the jurors followed the instruction. See State v. Dalmida,
1st Dist. Hamilton No. C-140517, 2015-Ohio-4995, ¶ 21, citing State v. Fears, 86
Ohio St.3d 329, 334, 715 N.E.2d 136 (1999) (jury is presumed to follow court’s
instruction to disregard defendant’s appearance in jail clothing).
Moreover, our review of the record reveals that the trial court made
every effort at the beginning of trial to ensure that the jury was unaware that
appellant was being held in jail during trial. These efforts included skirting around
counsel table to prevent the jury from seeing him shackled, the positioning of the
table, appellant appearing in civilian clothing, and side bars being conducted at
defense table. Despite these efforts, appellant, himself, revealed to the jury on the
fifth day of trial that he was in custody through his own conduct by showing the jury
the shackles on his feet and making statement that the shackles had been on his feet
“all week.” Accordingly, the fact that he appeared in jail clothing the following day
after making such display and being taken to the hospital by EMS would not have
surprised the jury to the point where it may have prejudiced appellant.
This conclusion that the jury was not prejudiced is supported by the
jury’s verdict that found appellant not guilty of two counts of rape. Following
Hawthorne, the fact that the jury did not convict appellant of all charges indicates
that the jurors were clearly able to deliberate objectively and fairly. Accordingly, we
find that appellant has failed to demonstrate how he was prejudiced by his
appearance in jail clothing on the fifth day of trial.
2. Ex Parte Communication about Jail Clothing
After trial resumed, the state cross-examined appellant’s
granddaughter. The record reveals that during this cross-examination, appellant
repeatedly objected to the state’s questioning, implored his granddaughter to “plead
the fifth,” and interjected his own opinion or answers to the questions. The trial
court cautioned appellant that if his disruptions continued, the court would proceed
without the appellant’s presence in the courtroom. Following this discussion,
appellant requested a bathroom break; the court took a recess. During the recess
and outside the presence of appellant, the court made a record of what occurred
earlier that day:
THE COURT: Let the record show the Defendant is not in the room
here. He is in his orange jumpsuit, so-to-speak, and I did tell the jury
to not draw any conclusions on the guilt or innocence because of that.
The reason we had him brought up today in the wheelchair was because
we’ve been told by the sheriff’s deputies in the medical outfit that he
refused any treatment this morning and he was laying on the floor, or
lying on the floor I should say, and therefore we had him brought over
because he wasn’t — he refused the treatment. He refused to change,
things like that. Anything else you want to add?
[THE PROSECUTOR]: I would just ask, Your Honor, that the record
reflect and that you adopt the findings that you had to order him
brought over in a wheelchair with the handcuffs on because it was the
only way to get him up. He refused to come up. That this is the least
restrictive setting, or way to have him in the courtroom so that he can
represent himself. And that this is — there’s no other alternatives, so
that we can proceed in court.
THE COURT: There are no other alternatives. And also, let the record
show that during all of the testimony of [his granddaughter], he was
moaning and groaning quite a bit. And I did tell him on the record that
if he continued to act out that we would just put him in the lockup and
have him available by some audio ways, and apparently they’re getting
to that.
***
So that can be done, but I don’t want to do that if we don’t have to. If
he runs out of witnesses, he will have rested his case and we will
proceed to final argument. And as I already mentioned, there is one
hour for each party. And how he’s going to give his final argument, I
do not know, he says he’s in a lot of pain; however, in my opinion it’s
somewhat convenient for him.
[THE PROSECUTOR]: And I would place on the record, Your Honor,
that certainly when he was objecting to the information about Mr.
Bokmiller, that suddenly the moaning stopped, only to start up again
when the jury walked in the room.
THE COURT: All right.
(Tr. 1259-1261.)
Appellant contends that the trial court violated his due process rights
because it engaged in ex parte communication with the state regarding appellant’s
appearance in jail clothing. In support, he cites to Jud.Cond.R. 2.9(B) and State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168.
Jud.Cond.R. 2.9(A) provides that “[a] judge shall not initiate, receive,
permit, or consider communications made to the judge outside the presence of the
parties or their representatives concerning a pending or impending proceeding
* * *.” Subsection (B) states that “[i]f a judge receives an unauthorized ex parte
communication bearing upon the substance of a matter, the judge shall make
provision promptly to notify the parties of the substance of the communication and
provide the parties with an opportunity to respond.”
In State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d
1168, the Ohio Supreme Court relied on these rules of judicial conduct when it found
that the trial court, on an ex parte basis, improperly elicited the state’s assistance in
drafting its judicial opinion imposing the death penalty. The court held that this ex
parte communication violated Roberts’s right to due process and thus, reversed
Roberts’s death sentence.
We find that Roberts is clearly distinguishable because in that case,
the trial judge was the “final arbiter of justice” in making this ultimate decision on
whether to impose the death sentence. Id. at ¶ 160. “The trial judge is charged by
statute with the sole responsibility of personally preparing the [death-sentence]
opinion setting forth the assessment and weight of the evidence, the aggravating
circumstances of the murder, and any relevant mitigating factors prior to
determining what penalty should be imposed.” Id. at ¶ 159. Accordingly, the
Supreme Court found that the trial judge’s ex parte communication with the
prosecutor seeking assistance in drafting the opinion making such final
determination clearly undermined the confidence of the judicial process and was
contrary to law. Id. at ¶ 159-163.
In this case, the jury was the ultimate trier of fact and the
communication between the prosecutor and the trial judge occurred outside the
presence of the jury. Moreover, the communication between the trial judge and the
state merely reiterated what was already placed on the record when appellant was
present in the courtroom. Finally, as discussed above, the nature of the
communication — that appellant’s appearance in jail clothing was the least
restrictive alternative — did not affect the jury’s ability to consider the evidence
without being influenced by appellant’s courtroom attire. Accordingly, unlike the
egregious conduct in Roberts, we find that the communication here did not
prejudice appellant or undermine the confidence in the judicial process in this case.
We make this finding not without recognizing that the better practice would be for
the trial court to conduct all conversations in the presence of the appellant,
especially one that is acting as his own counsel.
Appellant’s prior conduct already alerted the jury to the fact that he
may be held in jail during trial. Additionally, the record demonstrates that the jury
carefully considered the evidence when it found appellant not guilty of two counts
of rape. Finally, the trial court instructed the jury not to consider appellant’s
appearance in jail clothing as an indication of guilt. Accordingly, we find no error
and the first assignment of error is overruled.
B. Defense Witness
The state called the victim’s mother as a witness in its case-in-chief,
and the record reflects that appellant extensively cross-examined her. In fact, the
record reflects that mother testified for an entire day of trial — her testimony began
the afternoon session of court on July 21, 2021, and concluded the following day.
After the state rested its case, appellant attempted to call the victim’s
mother as his first witness. In the presence of the jury, the trial court advised
appellant that despite him subpoenaing her, the court was not allowing him to call
mother as a witness. The trial court explained that mother testified “for two days.
You can’t question her again. You cross-examined her. She’s not going to testify.”
(Tr. 1207.) Appellant objected and questioned whether the trial court was
prohibiting him from calling any witness who previously testified. The trial court
responded that it “was not saying that” but reminded appellant that all of his
intended witnesses had to appear in court either “today or tomorrow morning.”
In his second assignment of error, appellant contends that the trial
court erred when it prevented him from calling the victim’s mother as a defense
witness and limited his examination of mother to solely cross-examining her as a
state’s witness. He claims that this error denied him this right to present a complete
defense as to “whether and what extent [his daughters] resented appellant’s
tendency toward being a disciplinarian.”
Evid.R. 611(A) provides that a trial court “shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence
so as to (1) make the interrogation and presentation effective for the ascertainment
of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.” It is within the trial court’s discretion as to
how evidence should be presented. State v. Benitez, 8th Dist. Cuyahoga No. 96257,
2011-Ohio-5498, ¶ 79, citing State v. Gutierrez, 3d Dist. Hancock No. 5-10-14, 2011-
Ohio-3126, ¶101. Additionally, Evid.R. 403 allows the trial court to exercise
discretion in the presentation of cumulative evidence or evidence that causes undue
delay. The trial court has broad discretion in the admission and exclusion of
evidence and unless it has clearly abused its discretion and the defendant has been
materially prejudiced thereby, this court should be slow to interfere. State v.
Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
We note that appellant did not explain to the trial court why he
wanted to call the victim’s mother back to the witness stand in his defense. It is basic
to appellate practice that error, in the form of excluded testimony, is not reviewable
unless there has been a proffer of the excluded testimony or the content of such
testimony is apparent from the circumstances. Balliett v. Horan, 5th Dist. Ashland
No. 97 COA 01204, 1998 Ohio App. LEXIS 3540, 11-12 (July 27, 1998), citing Evid.R.
103. A review of the record demonstrates appellant made no proffer of the content
of the victim’s mother’s testimony or what testimony he attempted to elicit that was
beyond what she already provided. Although the record reveals that the trial court
required appellant to immediately continue with his case-in-chief, appellant could
have submitted a proffer outside the presence of the jury at the end of the day, or a
proffer could have been made in written form filed with the trial court. See Balliett
at id. Here, appellant did not avail himself to either option and even on appeal, he
fails to disclose what specific testimony he hoped to elicit from the victim’s mother
that was not cumulative or redundant of what she had already testified to during
appellant’s extensive cross-examination.
In Benitez, 8th Dist. Cuyahoga No. 96257, 2011-Ohio-5498, this court
considered a similar issue of whether the trial court abused its discretion when it
refused to allow Benitez to call two witnesses in his defense that had previously
testified in the state’s case-in-chief. Defense counsel explained to the court that the
witnesses were needed in rebuttal and to clarify previous testimony. The trial court
denied counsel’s requested finding that the justification touched on a “collateral
issue” and did not justify the one witness rehashing her prior testimony and the
other witness was subject to “full and complete examination.” Id. at ¶ 82. This court
found that the trial court did not abuse its discretion because the witnesses were
extensively cross-examined and the jury was aware of the defense’s theory that the
sexual abuse allegations were fabricated. Id. at ¶ 83.
We find this court’s decision in Benitez persuasive. Here, the record
reflects that mother was subject to extensive cross-examination about the
allegations of sexual abuse by the victim. Much like in Benitez, appellant’s theory of
the case was that the victim invented the allegations because she resented him and
his disciplinarian behaviors and that mother encouraged her behavior. The record
reveals that this theory was expressed during appellant’s opening statement and
fully developed in the victim’s testimony, the sister’s testimony, and in mother’s
testimony during the state’s case-in-chief. See, e.g., tr. 546; 587-588; 755-756; 765;
999. Allowing appellant to call the victim’s mother as a witness in his case-in-chief
to reiterate this theory would have been cumulative and caused unnecessary delay.
Accordingly, we find that the trial court did not abuse its discretion
when it denied appellant’s request to recall a witness who previously testified during
the state’s case-in-chief and was subject to extensive cross-examination. His second
assignment of error is overruled.
C. Expert Vouching for Credibility
Martinez, a licensed professional counselor, testified about her
interactions with the victim and family following a referral from CCDCFS. She was
not presented, qualified, or received as an expert. During the state’s examination of
Martinez, the prosecutor questioned her regarding her assessment of the victim to
determine if any diagnosis exists, and any treatment recommendations she had
made based on that diagnosis. Martinez testified that based on the information
given, she “compile[s] everything into the assessment and then talk[s] with parent
and child, about, you know, treatment recommendations, and in this case I made a
recommendation for trauma focused kind of behavioral therapy.” (Tr. 795-796.)
She testified that she diagnosed the victim with “posttraumatic stress disorder” as
“a result of the sexual assaults * * * or abuse.” (Tr. 796.) Appellant did not object.
Appellant contends in his third assignment of error that the trial court
erred when it allowed testimony from a state’s expert witness vouching for the
credibility of the accusing witness. He contends that this error violated the Ohio
Supreme Court’s decision in State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220(1989), that prohibits an expert or lay person circumventing the factfinder’s role of
assessing the credibility and veracity of witnesses.
Because appellant did not object, we review this assignment of error
under a plain error standard of review. Crim.R. 52(B) Under Crim.R. 52(B), plain
errors affecting substantial rights may be noticed by an appellate court even though
they were not brought to the attention of the trial court. To constitute plain error,
there must be (1) an error, i.e., a deviation from a legal rule, (2) that is plain or
obvious, and (3) that affected substantial rights, i.e., affected the outcome of the
trial. State v. Barnes, 94 Ohio St. 3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Even
if the error satisfies these prongs, appellate courts are not required to correct the
error. Id., citing Crim.R. 52(B). Appellate courts retain discretion to correct plain
errors. Id. Courts are to notice plain error under Crim.R. 52(B), “‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’” Id., quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978).
An expert may not testify as to the expert’s opinion about the veracity
of the statements of a child victim. Boston at 129. Such testimony is presumptively
prejudicial and inadmissible because it “‘infringe[s] upon the role of the fact finder,
who is charged with making determinations of veracity and credibility.’” Id. at 128-
129, quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988)
(Brown, J., concurring). This court has implied, however, that “‘Boston does not
apply when the child victim actually testifies and is subjected to cross-examination.’”
State v. Djuric, 8th Dist. Cuyahoga No. 87745, 2007-Ohio-413, ¶ 44, quoting; State
v. Benjamin, 8th Dist. Cuyahoga No. 87364, 2006-Ohio-5330, ¶ 19. In this case, the
victim testified and was subject to cross-examination where she stated that
appellant sexually assaulted her on two different occasions. Additionally, when
appellant asked her how he had hurt her, the victim responded, “he’s left me with
trauma.” (Tr. 644.)
More importantly, however, Martinez did not testify whether she
believed the victim or whether the victim was being truthful. Rather, she explained
to the jury her interactions with the victim, her assessment of the victim, her
diagnosis, and treatment options. She stated that the symptoms that the victim
reported satisfied the criteria for post-traumatic stress disorder, which was a result
of the sexual assaults that the victim reported. Martinez did not opine that these
allegations were truthful or credible. Accordingly, Boston does not apply.
Based on the foregoing, we find no obvious error that affected the
substantial rights of appellant that would require this court to make a finding of
plain error. The third assignment of error is overruled.
D. Jury Instructions
Appellant contends in his fourth assignment of error that the trial
court erred when it instructed the jury that they could “consider prior criminal
activity in considering the guilt or innocence of the accused.”
After all parties rested, the trial court provided the jury its
instructions for deliberation. Following the instructions, the trial court asked the
parties if any additions or deletions were requested. The prosecutor asked about its
Evid.R. 404(A) proposed instruction that allowed the state to rebut the appellant’s
character and reputation evidence. The trial court then stated:
THE COURT: I did talk about prior criminal activity.
[THE PROSECUTOR]: And I think we had submitted a 404(A)
proposed instruction to the Court and to the Defendant just talking
about the fact that information has been offered with regards to the
Defendant’s reputation, the State is allowed to rebut that and that
information will be used for reputation or rebuttal alone.
THE COURT: Right. I think you can consider prior criminal acts. I
certainly —
[APPELLANT]: Say that again. Could you say that again.
THE COURT: Yeah, you can consider prior criminal activity in
considering the guilt or innocence of the accused.
(Tr. 1341-1342.) The appellant did not object to the court’s statement.
Although the trial court made this statement to the parties in the
presence of the jury, the verbal and written instructions provided to the jurors did
not contain any such statement. The trial court gave the jury a standard “other acts
evidence” jury instruction:
Now, evidence was received about the commission of crimes other than
the offenses with which the Defendant is charged in this trial. That
evidence was received only for a limited purpose. It was not received,
and you should not consider it, to prove the character of the Defendant
in order to show that he acted in conformity or in accordance with that
character.
If you find that the evidence of other crimes is true and the Defendant
committed them, you may consider that evidence only for the purpose
of deciding whether it proves: the absence of mistake or accident; or
the Defendant’s motive, opportunity, intent, and purpose, preparation,
or plan to commit the offense charged in this trial; or knowledge of
certain circumstances surrounding the offense charged in this trial; or
the identity of the person who committed the offense in this trial. That
evidence cannot be considered as other acts or for any other purpose.
(Tr. 1325.)
Generally, “[i]n examining errors in a jury instruction, a reviewing
court must consider the jury charge as a whole and ‘must determine whether the
jury charge probably misled the jury in a matter materially affecting the complaining
party’s substantial rights.’” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114
N.E.3d 1092, ¶ 115, quoting Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 652
N.E.2d 671 (1995), quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202,
208, 560 N.E.2d 165 (1990).
However, appellant did not object to the jury instructions given, so we
review for a determination of whether the trial court committed plain error. State
v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.); see
also Crim.R. 30(A). Plain error does not exist unless the defendant shows that the
outcome of the trial clearly would have been different but for the alleged erroneous
instruction. Id. at ¶ 32, citing State v. Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339(1994), and Cleveland v. Buckley, 67 Ohio App.3d 799, 588 N.E.2d 912 (8th
Dist.1990).
In this case, we find that the trial court gave the jury the proper
instruction regarding evidence of other acts. We presume the jury followed those
instructions. See State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995);
Pang v. Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990). And although the
trial court directed a general statement to the parties about the consideration of
other crimes when deciding guilt or innocence, the trial court did not include this
instruction in its specific advisement or in the written form that was provided to the
jury. Moreover, the jury’s verdict clearly demonstrates that it was not prejudicially
swayed by the appellant’s prior criminal conduct. Accordingly, we find that the trial
court did not commit plain error in making this broad statement to the parties.
Appellant’s fourth assignment of error is overruled.
E. Cumulative Effect of Errors
Appellant contends in his fifth assignment of error that the
cumulative effect of trial-court errors denied him his right to a fair trial.
Under the cumulative-error doctrine, “a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial even
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. We have found no error. Thus, the doctrine of cumulative
error does not apply to this case, and we overrule this assignment of error.
F. Manifest Weight of the Evidence
Appellant contends in his sixth assignment of error that the findings
of guilt for Counts 3, 4, and 6 are against the manifest weight of the evidence. He
does not challenge his convictions on Counts 5 (burglary) and 7 (intimidation). We
initially note that Counts 3 and 4 were merged for sentencing with the state electing
to impose sentence on Count 3. Accordingly, this court will only address Counts 3
and 6 under this assignment of error.2
The Supreme Court of Ohio has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ * * *, declaring that ‘manifest weight’ and ‘legal sufficiency’
are ‘both quantitatively and qualitatively different.’” Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 10, quoting State v. Thompkins, 78
Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus.
2 For the purposes of R.C. 2941.25, a conviction consists of a guilty verdict and the
imposition of a sentence or penalty. Because Count 4 merged with Count 3 for sentencing,
no conviction exists on Count 4, and therefore, we cannot individually review the evidence
supporting that findings of guilt. See, e.g., State v. Ramos, 8th Dist. Cuyahoga No.
103596, 2016-Ohio-7685. This rationale applies to both sufficiency and manifest weight
challenges. See State v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 23;
citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990)
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. * * * Weight is not a question of mathematics, but depends on its
effect in inducing belief.” Eastley at ¶ 12, quoting Thompkins at 387. In a manifest
weight analysis, this court sits as a “thirteenth juror,” and reviews “‘the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines 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 id., quoting
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The
discretionary power to grant a new trial should be exercised only in exceptional cases
where the evidence weighs heavily against the conviction. Thompkins at 386.
Appellant was found guilty of Count 3, rape, in violation of R.C.
2907.02(A)(2). The indictment charged that on or about May 13, 2019, appellant
engaged in sexual conduct to wit: vaginal intercourse, with [the victim] by purposely
compelling her to submit by force or threat of force.
Appellant was also found guilty of Count 6, sexual battery, in violation
of R.C. 2907.03(A)(5). The indictment charged that on or about December 9, 2018,
to May 13, 2019, Appellant engaged in “sexual conduct with [the victim] not his
spouse, and [appellant] being the father of [the victim].”
Appellant contends that his convictions are against the manifest
weight of the evidence because the physical evidence from the Y-STR DNA testing
and the SANE nurse examination was inconclusive and uncertain. Specifically, he
contends that although the state’s expert testified about the presence of male-
specific DNA on the victim’s front and back panels of her underwear, the state’s
expert admitted that this DNA could have come from laundry or other household
transfers. Additionally, appellant contends the evidence weighs against conviction
because that the Y-STR male-specific profile from one of the swabs specifically
excluded appellant as a contributor. Finally, he directs this court to the SANE
nurse’s testimony that the redness observed at the base of the victim’s hymen could
have been caused by events other than sexual assault.
Although appellant identifies the evidence most favorable to him, the
jury also heard testimony from the victim that after appellant sexually assaulted her,
“he got off of me and then went to go get a rag and wipe me and clean me up.” (Tr.
569, 607). Additionally, the victim testified that she showered after the assault and
changed her clothing, including her underwear. Accordingly, while the physical
evidence seems inconclusive or uncertain, the jury also heard testimony that would
justify or explain the lack of physical evidence recovered in this case.
Appellant also contends that his convictions are against the manifest
weight of the evidence because the trial court improperly allowed the state’s witness
to improperly vouch for the credibility of the victim. We disagree. First, this court
in addressing appellant’s third assignment of error concluded that Martinez did not
impugn the jury’s role of assessing credibility. At no time did Martinez testify that
she found the victim truthful, her accusations credible, or that she believed the
victim’s allegations.
While we consider the credibility of witnesses in a manifest weight
challenge, we remain mindful that the determination regarding witness credibility
rests primarily with the trier of fact who hears all the testimony and is in the best
position to observe the witnesses at trial. State v. Kilton, 8th Dist. Cuyahoga No.
106864, 2019-Ohio-87, ¶ 20, citing State v. Mossburg, 8th Dist. Cuyahoga No.
98769, 2013-Ohio-1664, ¶ 22. In this case, the jury heard direct testimony from the
victim surrounding the rape and sexual battery. Accordingly, the jury was in the
best position to observe the victim’s demeanor and make its own determination
regarding the victim’s credibility. Appellant does not direct this court to any
inconsistencies in her testimony or any other witnesses whose testimony would
render her testimony incredible.
Accordingly, we find that the jury did not lose its way in convicting
appellant of rape and sexual battery. This case is not the exceptional case where the
evidence weighs heavily against the convictions. Accordingly, appellant’s sixth
assignment of error is overruled.
G. Reagan Tokes
In his seventh assignment of error, appellant contends that the trial
court erred when it sentenced him to an indefinite sentence under the Reagan Tokes
Law because the law violates constitutional guarantees of due process, the
separation-of-powers doctrine, and the right to trial by jury.
Based on the authority established by this district’s en banc holding
in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges
appellant advances against the constitutional validity of the Reagan Tokes Law have
been overruled. Id. at ¶ 17-54. Accordingly, his seventh assignment of error is
summarily overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
LISA B. FORBES, J., CONCUR
N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). (Forbes, J.,
dissenting).