State v. Kruse

[Cite as State v. Kruse, 2017-Ohio-5667.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-16-15
v.
JEAN PAUL KRUSE, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 13-CR-0124
Judgment Affirmed
Date of Decision: July 3, 2017
APPEARANCES:
Elizabeth M. Mosser for Appellant
Jocelyn K. Lowe for Appellee
Case No. 14-16-15
ZIMMERMAN, J.
{¶1} Defendant-Appellant, Jean Paul Kruse (“Kruse” or “Jean Paul”), brings
this appeal from the judgment entry of Union County Common Pleas court
convicting and sentencing him to multiple terms of life imprisonment following
guilty verdicts by a jury on five counts of rape, five counts of sexual battery, four
counts of gross sexual imposition and one count of intimidation of a witness in a
criminal case. On appeal, Kruse asserts that the trial court abused its discretion
when it denied Kruse funding for an investigator and an expert witness; that he was
denied the effective assistance of counsel; that the trial court committed plain error
by admitting hearsay evidence; and that his convictions for rape, sexual battery, and
gross sexual imposition were against the manifest weight of the evidence. For the
reasons that follow, we affirm the convictions of Kruse.
Facts
{¶2} Jean Paul Kruse married Emily Kruse (“Emily”) in 2003 (collectively
referred to as “the Kruses”). The Kruses had children from previous relationships,
and one child of their own was born during their marriage. In addition to these
children, during their marriage the Kruses’ fostered and adopted children from
various parts of the world, including Viet Nam, Haiti, Liberia, and the Congo.
{¶3} As of July, 2012, the Kruses had ten children living with them in their
home in Marysville, Ohio. On July 20, 2012, one of the children living with them,
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N.D., disclosed to Roy and Susie Fraker, Emily Kruse’s parents, that Jean Paul had
sexually abused some of the children in the Kruses’ home.1 (05/19/15 Tr. at 172-
73). Specifically, N.D. stated that Jean Paul had sexually abused B.K. and S.K.,
adoptive children of the Kruses. Further, another child living in the home, F.K.,
told family members that Jean Paul had sexually abused her and corroborated that
Jean Paul had sexually abused the other children.
{¶4} Criminal and children services’ investigations commenced in Union
County in the weeks thereafter against Jean Paul. During the course of the
investigations F.K. and B.K. disclosed that Jean Paul Kruse sexually abused them.
In addition to these allegations of abuse, Emily’s biological daughter, M.C., alleged
Jean Paul also abused her.2
Procedural History
{¶5} On July 15, 2013 the Union County, Ohio grand jury indicted Jean Paul
on seventeen (17) criminal charges consisting of rape, sexual battery, gross sexual
imposition (“gross sexual imposition” or “GSI”), and intimidation of an attorney,
victim, or witness in a criminal case. Kruse obtained counsel on July 31, 2013, and
requests for discovery and a bill of particulars were filed on that same date. On
1
N.D. testified that she disclosed the sexual abuse concerns to: Emily Kruse, Betsy and Andy Fraker, Scott
and Amy Holly, and Amy Connolly prior to the July 20, 2012 disclosure to Roy and Susie Fraker. (05/13/15
Tr., Vol. II. at 184-87).
2
Ultimately, the jury found Kruse not guilty of sexual abuse involving M.C.
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August 27, 2013 the State responded to Kruse’s request for discovery, and
supplemented its response to the request for discovery on September 17, 2013.
{¶6} On June 12, 2014 a superseding indictment was filed against Jean Paul.
This new indictment contained twenty-seven (27) criminal counts, including
multiple counts of rape, sexual battery, and gross sexual imposition, as well as seven
counts of intimidation of a witness, and one count of tampering with evidence.
However, on August 7, 2014 a third, superseding indictment was filed in this case
against Kruse, consisting of thirty-five (35) counts, including multiple counts of
rape, sexual battery, and gross sexual imposition, and intimidation of a witness and
one count of tampering with evidence.
{¶7} On September 24, 2014 an application for appointment of a special
prosecutor was filed by the State. A special prosecutor was appointed in this case
on September 30, 2014.
{¶8} On January 9, 2015 Kruse filed a motion in the trial court for
appropriation of funds for an investigator to assist with his defense. A hearing on
the request was held on January 14, 2015, and on January 16, 2015 the court
overruled Kruse’s motion. However, on April 14, 2014, Kruse filed another motion
for appropriation of funds for a child forensic investigator which the trial court
denied in part and sustained in part. In its ruling, the trial court appropriated Kruse
$1,000 for an investigator to assist with his trial preparation, but denied any funding
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for the investigator to testify at trial. Interestingly, the record is unclear as to
whether Kruse ever hired an investigator or used the funding provided by the trial
court.
{¶9} The cases proceeded to a jury trial on May 11, 2015 and during the
course of the trial the State dismissed 12 of its 35 counts. (05/18/2015 Tr. at 67-
68). Upon completion of the trial, the jury found Kruse guilty on 15 of 23 counts in
the indictment.3 However, the jury was unable to reach a verdict on one count of
gross sexual imposition (Count 7), but did find Kruse not guilty on the remaining 7
counts (Counts 4, 5, 6, 8, 18, 19, and 20).
{¶10} At Kruse’s sentencing hearing on June 3, 2015, the trial court found
that counts one (Rape), two (Sexual Battery), and three (Gross Sexual Imposition)
merged, and thereafter sentenced Kruse on count one, Rape, for an indefinite term
of imprisonment, with a minimum 10 years and maximum life sentence. In regards
to counts nine (Rape), ten (Sexual Battery), and eleven (Gross Sexual Imposition),
the trial court found that those counts merged, and thereafter sentenced Kruse on
count nine, Rape, to a term of life imprisonment without parole. Regarding counts
twelve (Rape), thirteen (Sexual Battery), and fourteen (Gross Sexual Imposition),
the trial court also found that those counts merged, and Kruse was sentenced
3
Specifically, Kruse was found guilty of renumbered counts: Count 1 – Rape; Count 2 – Sexual Battery;
Count 3 – GSI; Count 9 – Rape; Count 10 – Sexual Battery; Count 11 – GSI; Count 12 – Rape; Count 13 –
Sexual Battery; Count 14 – GSI; Count 15 – Rape; Count 16 – Sexual Battery; Count 17 – Witness
Intimidation; Count 21 – Rape; Count 22 – Sexual Battery; and Count 23 – GSI.
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thereafter on count twelve, Rape, to a term of life imprisonment without parole. In
regards to counts fifteen (Rape) and sixteen (Sexual Battery), the trial court found
that those counts merged, and Kruse was sentenced on count fifteen, Rape, to a term
of life imprisonment without parole. On count seventeen, Intimidation, the court
sentenced Kruse to a term of thirty months imprisonment. In regards to counts
twenty-one (Rape) and twenty-two (Sexual Battery), the trial court found that those
counts merged and Kruse was thereafter sentenced on count twenty-one, Rape, to
an indefinite prison term with a minimum of ten years and a maximum of life. On
count twenty-three, gross sexual imposition, the court sentenced Kruse to a fifty-
four-month term of imprisonment.
{¶11} Further, the trial court ordered that the five rape sentences imposed
(Counts 1, 9, 12, 15, and 21) to run consecutively with each other, and the
intimidation of a witness and gross sexual imposition counts (Counts 17 and 23) to
run concurrently with the five rape sentences. Thus, Kruse’s rape sentences
consisted of three (3) life sentences without parole (Counts 9, 12, and 15) and two
(2) sentences with minimum terms of 10 years and a maximum of life (Counts 1 and
21). Additionally, the trial court ordered that Kruse be registered as a Tier III sex
offender/child victim offender.
{¶12} From his convictions Kruse timely appeals, and presents the following
assignments of error for our review:
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ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED APPELLANT FUNDS FOR AN INVESTIGATOR,
AND LATER AN EXPERT WITNESS, CONTRARY TO LAW.
ASSIGNMENT OF ERROR NO. II
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT COMMITTED PLAIN ERROR THAT
SUBSTANTIALLY PREJUDICED APPELLANT.
ASSIGNMENT OF ERROR NO. IV
THE CONVICTIONS OF RAPE, SEXUAL BATTERY, AND
GROSS SEXUAL IMPOSITION WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶13} On appeal, Kruse contends that the trial court abused its discretion in
regards to its denial of funding for an investigator and expert witness; that he was
denied the effective assistance of counsel; that the trial court committed plain error
in admitting hearsay testimony; and that all the convictions of rape, sexual battery,
and gross sexual imposition are against the manifest weight of the evidence. We
will address each assignment of error in turn.
First Assignment of Error
{¶14} In his first assignment of error, Kruse contends that the trial court
abused its discretion by denying Kruse funds for an investigator and expert witness.
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Specifically, Kruse asserts that on January 16, 2015 the trial court improperly denied
Kruse funds for an investigator, citing the lack of timeliness of the request by the
defense as the reason for denial. Additionally, Kruse states that on April 28, 2015
the trial court improperly denied Kruse’s subsequent funding request for the
investigator to testify as an expert witness at trial. For the following reasons, we
find Appellant’s arguments are without merit.
Standard of Review
{¶15} “As a matter of due process, indigent defendants are entitled to receive
the ‘raw materials’ and the ‘basic tools of an adequate defense * * *.’” State v.
Mason, 82 Ohio St. 3d 144, 149, 1998-Ohio-370, 694 N.E.2d 932 citing Ake v.
Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087 (1985) quoting Britt v. North Carolina,
404 U.S. 226, 227, 92 S. Ct. 431 (1971). “Due process * * * does not require the
government to provide expert assistance to an indigent defendant in the absence of
a particularized showing of need.” Id. at 150. A ‘particularized showing of need’
means “more than a mere possibility of assistance from an expert.” Id. “Rather, a
defendant must show a reasonable probability that an expert would aid in his
defense, and that the denial of expert assistance would result in an unfair trial.” Id.
{¶16} In regards to a trial court’s decision to grant or deny a request for an
expert witness the Ohio Supreme Court has determined:
[I]t is appropriate for a court to consider the following factors in
determining whether the provision of an expert witness is necessary:
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‘(1) the effect on the defendant’s private interest in the accuracy of the
trial if the requested service is not provided, (2) the burden on the
government’s interest if the service is provided, and (3) the probable
value of the additional service and the risk of error in the proceeding
if the assistance is not provided.’
{¶17} State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493, 894 N.E.2d 671,
¶ 22 quoting Mason, supra, citing Ake, supra.
{¶18} The trial court possesses the sound discretion to grant or deny a
defendant’s request for an expert witness. Id. at ¶ 23. Therefore, a trial court’s
decision as to whether to provide an expert witness is reviewed under the “abuse of
discretion” standard. Id. “The term ‘abuse of discretion’ connotes more than an
error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable.” State v. Hernandez, 3rd Dist. Hardin No. 6-16-08,
2017-Ohio-679, ¶ 7 citing Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983). Absent an abuse of discretion, an appellate court shall not
reverse a trial court’s decision. Maag v. Maag, 3rd Dist. Wyandot No. 16-01-16,
2002-Ohio-1401, *2.
First Ruling on Investigator Funds
{¶19} Kruse contends that trial court improperly denied him funding for an
investigator by making no findings as to a particularized need, and by citing the lack
of timeliness as the reason for the denial. In support, Kruse directs us to the trial
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court’s January 16, 2015 entry in which the trial court determined Kruse’s lack of
timeliness of the request as the reason for the denial.
{¶20} The trial court’s January 16, 2015 Judgment Entry denying Kruse’s
first request for investigator funding states as follows:
[u]pon due consideration, the Court, after stating its reasoning on the
record, ORDERED that Defendant’s Motion for Appropriation of
Funds for an Investigator * * * [was] overruled.
(Doc. No. 127 at 1). As to the trial court’s “reasoning on the record” at the hearing
of January 14, 2015, the trial court stated as follows:
I’m denying your other [investigator] motions, but I am granting the
continuance. I think the information that you have is sufficient to
negate the need for an investigator. I think that will create an undue
delay because as soon as your investigator gets done with whatever
your investigator’s doing, then the Prosecutor’s going to want to do
the same thing and there’s going to be a back and forth. * * * That’s
just too unproductive and too much delay. I don’t think that’s
required.
(01/14/15 Tr. at 23).
{¶21} Even though the trial court did not use the “particularized need”
language in its ruling, the trial court nonetheless conducted its analysis consistent
with the factors outlined in Brady and Mason that are set forth above. Regarding
the first factor in Brady, the trial court found that Kruse had already received
sufficient information in discovery to negate the need for an investigator. Regarding
the second Brady factor, the trial court found that the State would have been
burdened by having to obtain its own investigator upon receipt of Kruse’s
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investigator’s report, which would have created an unnecessary delay for the trial.
And regarding the third and final Brady factor, the trial court found that granting the
request for investigator funding would have been “unproductive.” Thus, the trial
court denied Kruse’s request.
{¶22} After analyzing the trial court’s ruling on Kruse’s first request for
investigator funding pursuant to Brady and Mason, we cannot say that the trial court
abused its discretion by denying the request because Kruse failed to demonstrate a
particularized need to the trial court. In his memorandum attached to his request for
an investigator, Kruse presented the trial court with a broad assertion about an
“apparent transfer of behavior” (of the victims) theory regarding “something
inappropriate [that] occurred” and nothing more. (Doc. No. 103 at 2). The
memorandum also gives an estimate “that funds to procure an investigator would
be less than one thousand dollars,” but fails to reveal the identity of an investigator
and how the funding amount was determined. (Id.) Lastly, Kruse’s request for
funds occurred just twelve (12) days prior to the start of the (then) scheduled trial,
which we agree was made untimely. Thus, because Kruse’s request was untimely,
overly broad, and failed to provide the trial court with specificity as to the
“particularized need,” for the funding of an investigator, the trial court did not abuse
its discretion in overruling this request.
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Second Ruling on Investigator Funds
{¶23} Kruse filed a second request for an investigator on April 14, 2015. A
hearing on a second motion for investigator funding was held on April 28, 2015,
resulting in the trial court sustaining the motion in part, by granting Kruse up to
$1,000 for the use of an investigator to help with trial preparation. However, the
trial court restricted the use of the investigator funds for trial preparation only, not
for testimonial expenses of the investigator. Kruse asserts that the trial court abused
its discretion by imposing these restrictions since Kruse demonstrated a
particularized need for the funding.
{¶24} Kruse’s categorization of the April, 2015 ruling by the trial court
regarding investigator funding is misplaced. In its ruling on this request, the trial
court discussed the “particularized need” factors for funding. (Doc. No. 170 at 1).
However, in its analysis of the “particularized need” factors, the trial court found
that Kruse “did not” meet his burden of showing a particularized need required to
satisfy the request for investigator funds for testimonial reasons. (Emphasis added).
(Id. at 2).
{¶25} Thus, upon our review of Appellant’s second motion, we find that the
trial court followed the factors enunciated in Mason regarding the “particularized
need” test and therefore did not abuse its discretion by allotting Kruse funds for trial
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preparation only because Kruse failed to show a particularized need for testimonial
expenses of an expert.
{¶26} Accordingly, Kruse’s first assignment of error is overruled.
Second Assignment of Error
{¶27} In his second assignment of error, Kruse contends that he was denied
effective assistance of counsel, claiming his counsel’s performance fell below an
objective standard of reasonable representation. Specifically, Kruse asserts that his
trial counsel did not timely review discovery, resulting in full discovery not being
provided to Kruse until a year after the initial request. Kruse also asserts his counsel
was ineffective by filing the first request for investigator funds untimely. Further,
Kruse contends that at trial, defense counsel did not object to the State’s use of
leading questions, which resulted in substantial prejudice to Kruse. Lastly, Kruse
asserts that defense counsel’s multiple instructions and corrections from the trial
court as to how to impeach a witness and how to refresh the recollection of a witness
fell below an objective standard of reasonable representation. For the reasons that
follow, we disagree.
Standard of Review
{¶28} “‘When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that the counsel’s representation fell
below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d
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150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland v. Washington, 466
U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.’” Id., at 694. See
also, State v. Bradley, 42 Ohio St. 3d 136, 137, 538 N.E.2d 373 (1989).
{¶29} In analyzing a claim for ineffective assistance of counsel, this court’s
scrutiny of counsel’s performance must be highly deferential, with a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. Bradley, supra, at 142, quoting Strickland, supra, at 687-
88. “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel’s
performance.” Id.
Analysis
{¶30} Initially, we note that during the trial the State dismissed 12 of the 35
counts against Kruse, that Kruse was found “not guilty” of seven of the 23 counts,
and the jury was unable to reach a verdict on one count. Defense counsel’s ability
to avoid convictions on more than one-half of the indicted counts does support the
presumption that defense counsel’s performance was within the range of reasonable
professional assistance.
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Discovery and Motion Deficiencies
{¶31} At the January 14, 2015 Motions Hearing, defense counsel informed
the trial court that they had additional discovery concerns after being provided
complete discovery by the State.4 (01/14/15 Tr. at 4). Thereafter, the court
concluded: “[w]ell, apparently, from what I’m hearing, they didn’t – they didn’t
realize they didn’t have everything.” (Id. at 14). While the January 16, 2015 Journal
Entry briefly mentions that discovery material had been available to counsel since
August 27, 2013, the court held an evidentiary hearing on the matter and granted a
continuance of the trial on January 21, 2015,5 thus resulting in more time for trial
preparation.
{¶32} Additionally, upon review of the additional discovery, defense counsel
immediately requested funds to hire an investigator, which the trial court denied.
(Doc. No. 127 at 2). Thereafter, defense counsel filed a second request for funds
for an investigator/expert witness, which the trial court granted in part. (Doc. No.
170 at 2). “The reasonableness of counsel’s determination concerning the extent,
method and scope of any criminal discovery necessarily depends upon the particular
facts and circumstances of each case.” State v. Allen, 10th Dist. Franklin No. 02AP-
862, 2003-Ohio-1114, ¶ 7 citing State v. Wilson, 8th Dist. Cuyahoga No. 61199,
4
At the January 14, 2015 hearing, defense counsel represented to the trial court that it had received ten (10)
CD’s of additional discovery material from the State on the aforementioned date. (01/14/2015 Tr. at 4).
5
No record of the evidentiary hearing held on January 21, 2015 regarding the matter of discovery was
provided to this court.
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1992 WL 309378, * 1 (Oct. 22, 1992). Here, defense counsel’s persistence and
ability to obtain funds to hire an investigator does not fall below an objective
standard of reasonable representation. Additionally, being unaware of additional
discovery materials is not the same as failing to review the discovery material.
Kruse’s argument regarding any discovery mistakes made by his counsel fails to
show how such was prejudicial to his defense. Thus, Kruse has not satisfied the
first prong of the Strickland test on this issue.
Objections to Leading Questions
{¶33} Kruse next contends that counsel was ineffective by failing to object
to leading questions. Specifically, Kruse contends that his attorney failed to object
to leading questions of M.C. and references the record where M.C. gave one-word
answers to leading questions where no objection was made.
{¶34} In our review the record demonstrates that defense counsel did object
to the State’s use of leading questions to M.C. For example, the following exchange
at trial establishes this fact:
Q. (Questioning by Attorney Michener for the State) Now, later
on did you discover that that same day [N.D.] had been sent back
to Idaho?
A. (M.C.) Yes.
Q. And after that - -
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Attorney Leach: And again, Judge, I’m going to object to the
leading. He’s asked – phrase the question with a yes/no
answer.
Trial Court: All right. Don’t lead.
(05/11/15 Tr. Vol. II at 209).
{¶35} Additionally, the portions of the transcript that Kruse directs us to
where defense counsel did not object does not rise to a level that would constitute
an ineffective assistance of counsel claim. As the Ohio Supreme Court stated in
State v. Conway, “the failure to make objections is not alone enough to sustain a
claim of ineffective assistance of counsel.” State v. Conway, 109 Ohio St. 3d 412,
2006-Ohio-2815, 848 N.E.3d 810, ¶ 103; State v. Holloway, 38 Ohio St. 3d 239, 244,
527 N.E.2d 831 (1988); State v. Gumm, 73 Ohio St. 3d 413, 428, 1995-Ohio-24, 653
N.E.2d 253, holding modified by State v. Wogenstahl, 75 Ohio St. 3d 344, 1996-
Ohio-2219, 662 N.E.2d 311.
{¶36} Trial counsel is permitted to make strategic decisions regarding the
use of objections to leading questions. As this court held in State v. Dye:
Nevertheless, to the extent that any leading questions were used by
the State and were not objected to, we would note that it is wholly
within the trial court’s discretion to allow leading questions on direct
examination and therefore courts have typically found that any failure
to object to leading questions does not constitute ineffective assistance
of counsel. Furthermore, electing not to object to the use of leading
questions, particularly when a child-victim is being questioned, could
certainly fall within the ambit of trial strategy.
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State v. Dye, 3rd Dist. Seneca No. 13-15-35, 2016-Ohio-986, ¶ 22. (Internal citations
omitted). Defense counsel’s objection to some, but not all leading questions could
easily fall within counsel’s trial strategy, and therefore, does not fall below an
objective standard of reasonableness as required by the test in Strickland.
{¶37} Lastly, even though Kruse cannot satisfy the first prong of the
Strickland test, even if he were able to demonstrate that counsel’s performance fell
below an objective standard of reasonableness, Kruse was not convicted on either
count involving M.C. Even though he was not convicted on those counts involving
M.C., Kruse avers that M.C.’s statements impacted the jurors’ beliefs’ as to
allegations by F.K., S.K., and B.K. To support this blanket assertion of prejudice,
Kruse directs us to no specific statement of M.C. that resulted in actual prejudice to
Kruse. To the contrary, M.C.’s testimony resulted in a genuine issue of credibility
for the defense to argue to the jury. For these reasons, we find Kruse was not
prejudiced from defense counsel’s trial tactics by not objecting to all of the leading
questions asked by the prosecutor.
Objections to Hearsay Statements
{¶38} Kruse again contends that counsel’s performance was so deficient as
to result in ineffective assistance because “[n]o objection was raised to argue that
statements made by F.K. were hearsay.” (Br. Of Appellant at 13). Kruse then cites
just one instance of a hearsay statement that was not objected to. (Id.). However, a
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review of the entire transcript reveals that defense counsel did object to hearsay
statements made by F.K. on multiple occasions. The following excerpts are
illustrative of defense counsel’s objections to hearsay statements:
Q. (Questioning by Attorney Kinsler for the State) So after that
argument over the phone where she – what did she say – let me
back up. What did she say in that argument over the phone?
A. (F.K.) What did she say to?
Q. Jean Paul.
A. Oh. She said –
Attorney Leach: Objection.
A. Cause Jean Paul was –
Attorney Leach: Objection.
Q. He’s objecting. Just wait?
Attorney Leach: Hearsay.
Trial Court: Overruled.
(05/12/15 Tr. at 188).
Q. (Questioning by Attorney Kinsler for the State) After that,
did anybody else in the house ever disclose to you that they had
been touched inappropriately by Jean Paul?
A. (F.K.) [B.K.]
Q. What did [B.K.] tell you?
Attorney Leach: Objection, your Honor.
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A. She didn't tell us. She –
Q. When he objects, I need you to wait.
A. Okay. I don’t hear him objecting.
Attorney Leach: Objection, your Honor.
Q. Let him –
The Court: All right. Sustained.
(Id. at 189).
{¶39} While it is true that defense counsel did not object to certain hearsay
statements of F.K., which is discussed thoroughly under Appellant’s third
assignment of error, the record clearly reflects that defense counsel did object to
other hearsay statements and questions when it was appropriate to object. Providing
deference to counsel’s judgments during trial, we find the assertion that Kruse was
denied effective assistance of counsel on this basis without merit.
Impeachment/Refresh Recollection Concerns
{¶40} Finally, Kruse contends that because defense counsel had to be
instructed by the court multiple times on the difference between impeaching a
witness and refreshing a witness’s recollection, counsel’s performance fell below
an objectively reasonable standard. We note as an initial matter that the trial court
did instruct counsel, at a sidebar, on matters of witness impeachment and
recollection refreshed. (See, e.g., 05/13/15 Tr. Vol. I at 77-81). As such, the jury
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was not privy to this conversation. Sidebars are commonplace during trial and for
practical purposes are designed to assist counsel with rules of evidence and flow of
testimony. Kruse fails to show us any specific prejudice that resulted from these
corrections by the trial court. By failing to be specific as to how this prejudiced
him, Kruse failed to meet his burden on this prong of his ineffective assistance of
counsel claim.
{¶41} For the aforementioned reasons, Kruse’s second assignment of error
is overruled.
Third Assignment of Error
{¶42} In his third assignment of error, Kruse contends that the trial court
committed plain error by not sua sponte prohibiting the use of leading questions by
the State to M.C., one of the victims. Additionally, Kruse contends that it was plain
error for F.K.’s testimony, containing hearsay statements, to be considered by the
jury. We disagree.
Standard of Review
{¶43} Crim.R. 52(B) provides: “‘plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.’”
State v. Long, 53 Ohio St. 2d 91, 94, 372 N.E.2d 804 (1978) quoting Crim.R. 52(B).
The court, on their own motion or at the request of counsel, should exercise the
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power to afford notice of plain error “only in exceptional circumstances, and
exercise cautiously even then.” Id. Additionally:
“* * * The normal rule is that an appellate court should not consider
questions which have not been properly raised in the trial court and
upon which the trial court has had no opportunity to pass. The plain
error rule should be applied with caution and should be invoked only
to avoid a clear miscarriage of justice. To exercise the right freely
would undermine and impair the administration of justice and detract
from the advantages derived from orderly rules of procedure.’”
Id. at 95-96, quoting Gendron v. United States, 295 F.2d 897, 902 (8th Cir.1961).
“In order to have a plain error under Crim.R. 52(B), there must be an error, the error
must be an “obvious” defect in the trial proceedings, and the error must have
affected “substantial rights.” State v. Roberts, 180 Ohio App. 3d 666, 2009-Ohio-
298, 906 N.E.2d 1177, ¶ 10 (3rd Dist.) citing State v. Barnes, 94 Ohio St. 3d 21, 27,
2002-Ohio-68, 759 N.E.2d 1240.
Leading Questions
{¶44} Kruse again rehashes his argument that portions of M.C.’s testimony
contained leading questions, now asserting that it was plain error for the trial court
to permit the State to use leading questions on its direct examination of M.C. Kruse
contends that the leading questions were obvious defects and were prejudicial to
Kruse. However, as discussed above, “it is wholly within the trial court’s discretion
to allow leading questions on direct examination.” Dye, 3rd Dist. Seneca No. 13-
15-35, 2016-Ohio-986, ¶ 22.
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{¶45} Evid.R. 611(C), which governs the use of leading questions states, in
part: “Leading Questions. Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop his testimony. * *
*.” (Emphasis added). State v. Lewis, 4 Ohio App. 3d 275, 277, 448 N.E.2d 487
(3rd Dist.1982) quoting Evid.R. 611(C). As this court recognized in Lewis, “[t]he
exception ‘except as may be necessary to develop his testimony’ is quite broad and
places the limits upon the use of leading questions on direct examination within the
sound judicial discretion of the trial court.”
{¶46} While the record reveals that the trial court granted some leeway to
the State in the development of M.C.’s testimony, we note that said leeway was not
outside of the discretion of the trial court. M.C. was a minor testifying about her
alleged sexual abuse by Kruse at trial, and Ohio “[c]ourt’s have continued to
emphasize the latitude given the trial court * * *, especially in cases involving
children who are the alleged victims of sexual offenses.” State v. Rector, 7th Dist.
Carroll No. 01 AP 758, 2002-Ohio-7442, ¶ 30. See also, State v. Wilson, 2nd Dist.
Montgomery No. 19618, 2003-Ohio-6229, ¶ 37; State v. Jamison, 6th Dist. Lucas
No. L-12-1274, 2014-Ohio-3275, ¶ 30; In re J.M., 3rd Dist. Putnam No. 12-11-06,
2012-Ohio-1467, ¶ 30. After examining the entire record, and specifically the
testimony of M.C. we cannot reasonably conclude that the trial court exceeded the
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parameters of its sound discretion. Further, as we noted above, Kruse was found
not guilty of the charges relative to M.C.
Hearsay Statements
{¶47} Kruse again points us to the testimony of F.K., stating that the trial
court impermissibly allowed F.K. to testify as to hearsay statements of S.K. and
B.K. Kruse contends that absent the hearsay statements of F.K., he potentially
would not have been convicted of the counts related to S.K. and B.K.
{¶48} Specifically, Kruse raises concern with the following exchange
involving F.K.’s “hearsay” statements relative to S.K. and B.K.:
Q. (Questioning by Attorney Kinsler for the State) And what, if
anything, happens with [B.K.] and [S.K.]? Where are they at?
A. (F.K.) Jean Paul comes outside and tells them he needs them
to help him fix the curtains. And then locks all the door [sic] and
takes them upstairs. And then 30 minutes later they come
downstairs and we notice something is weird. Because why would
he ask two little girls to ask him fix [sic] curtains when he could
have asked like me or [N.D.], two older girls? So we took them
like, as soon as they come out, which was like 30 minutes later.
We come – they come outside. We ask them like, did Jean Paul
do anything to you? And they – that’s when they tell us that Jean
Paul puts his – their shirts over their eyes and was going like this
to their heads. [B.K.] and [S.K.] made that statement – statement
that he was going like this to their head. So me and [N.D.]’s
thinking, what else could he – and [S.K.] said that it was
something big in her mouth. So we – me and [N.D.]’s thinking
like, he put his penis in their mouths. And [S.K.] stated that he
puts her on his bed and play [sic] with her private parts.
Q. Okay. How long does this – how long after they exit the
house does this conversation take place?
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A. Like right away.
Q. You said you were asking them about what was going on in
the house?
A. Yes. We asked them if Jean Paul any [sic] did anything to
them.
Q. Other than, you know, what you took to be oral sex, did either
of the children, either [B.K.] or [S.K.] describe any other abuse
that happened right then in the house?
A. Other than [S.K.] saying that he laid her on his bed and
played with her private part, that was it.
**
Q. Okay. Did she indicate anything to lead you to believe what
part she was referring to?
A. Her vagina.
(05/13/15 Tr., Vol. I, at 53-54).
{¶49} Our review of the record reveals that prior to this exchange, the trial
court dealt with the hearsay issue of F.K.’s testimony outside of the presence of the
jury. (Id. at 39). Once the court recessed the jury, counsel for the State inquired of
F.K. regarding the above cited testimony. (Id. at 40-43). And, after cross
examination and arguments from the State and defense counsel, the trial court ruled
that S.K.’s and B.K.’s statements (to F.K.) constituted excited utterances and were
an exception to hearsay under Evid.R. 803(2). (Id. at 51). Thereafter, the jury re-
entered the courtroom and the examination regarding S.K. and B.K.’s statements
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made to F.K resumed. (Id.) While Kruse contends that the F.K.’s testimony was
hearsay, plain error does not exist under the facts of this argument as the trial court
specifically found that the statements were admissible as an exception to the hearsay
rule under Evid.R. 803(2) during a hearing held outside the presence of the jury.
Thus, we find that Kruse’s argument is without merit and overrule assignment of
error number three.
Fourth Assignment of Error
{¶50} In his fourth assignment of error, Kruse contends that his convictions
of rape, sexual battery, and gross sexual imposition were against the manifest weight
of the evidence. Specifically, Kruse asserts that there was no evidence to support
his convictions for rape, sexual battery, and gross sexual imposition for all of the
children, and that the conviction pertaining to S.K. was against the manifest weight
of the evidence because S.K. testified that Kruse did not sexually abuse her. For the
following reasons, we disagree.
Standard of Review
{¶51} In analyzing a claim that the conviction was against the manifest
weight of the evidence, an appellate court:
sits as the “thirteenth juror” and may disagree with the fact finder’s
resolution of the conflicting testimony. * * * The appellate court,
“‘reviewing 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 jury clearly lost its
way and created such a manifest miscarriage of justice that the
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conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against
conviction.”
State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State
v. Jackson, 169 Ohio App. 3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶ 14 (citations
omitted). However, in sitting as the thirteenth juror the appellate court should give
due deference to the findings made by the jury. Id.
{¶52} With that standard in mind, we will discuss the rape, sexual battery,
and gross sexual imposition convictions as they pertain to each victim in turn.
Convictions regarding F.K.
{¶53} After reviewing the entire record, we cannot say that each of the rape,
sexual battery, and gross sexual imposition convictions6 regarding F.K. were against
the manifest weight of the evidence. To support his argument that these convictions
were against the manifest weight of the evidence, Kruse avers there is a lack of
physical evidence to support the convictions related to F.K.
{¶54} However, multiple witnesses for the State testified concerning the
abuse of F.K., including the testimony of Dr. Gayle Hornor, Betsy Fraker, Amy
Connolly, Gina Grady, and Christina Willis. The testimony of Dr. Hornor, the
pediatric nurse practitioner at the Center for Family Safety and Healing at
6
Convictions regarding F.K. comprised renumbered counts 1, 2, and 3 of Kruse’s indictment.
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Case No. 14-16-15
Nationwide Children’s Hospital examined F.K. on August 10, 2012 as part of a
forensic interview. (5/13/15 Tr., Vol. I, at 23). Dr. Hornor testified that while F.K.
had no physical signs of sexual abuse, the exam did not rule out or confirm sexual
abuse because “[t]he vast majority of children, really only between less than ten
percent of children who are sexually abused are going to have a physical finding on
exam.” (Emphasis added). (Id. at 26).
{¶55} Further, F.K. testified while residing at their home on Pepper Lane,
she “woke up to feel his [Kruse’s] fingers inside of [her]”. (5/12/15 Tr. at 180).
F.K. testified that once she moved Kruse jumped up and ran out of the room. (Id.).
F.K. also testified that on a second occasion she woke up to feel Kruse’s fingers
again in her vagina. (Id. at 183). Thus, competent and credible evidence of rape,
sexual battery, and gross sexual imposition exists in the record to support the jury’s
verdicts as to F.K.
{¶56} Further, Kruse contends that the convictions regarding F.K. should be
overturned because F.K. recanted her statement prior to trial. While F.K. did recant
her allegations by writing various family members letters of apology for “lying”
about the abuse she suffered by Kruse, F.K. testified that she was instructed to write
those letters by Emily Kruse. (Id., at 58). F.K. also testified that she believed that
if she did not write the letters she’d be “sent away.” (Id. at 60).
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{¶57} After examining the record and the evidence presented by the State,
we cannot say that the conviction is against the manifest weight of the evidence.
Accordingly, Kruse’s assignment of error, as it relates to F.K., is overruled.
Convictions regarding B.K.
{¶58} After reviewing the entire record, we cannot say that the rape, sexual
battery, and gross sexual imposition convictions7 regarding B.K. were against the
manifest weight of the evidence. While we agree that there was no physical
evidence presented by the State as to Kruse’s sexual abuse of B.K., we note the
record contains testimonial evidence of abuse regarding B.K. N.D. and F.K.
testified that B.K. disclosed sexual abuse by Kruse to them. (05/12/15 Tr. at 195;
05/13/15 Tr., Vol. 1, at 53-54; 05/13/15 Tr., Vol. 2, at 183-84). Additionally, a
video interview between Jennifer Westgate (“Westgate”), a forensic
interviewer/social worker at Nationwide Children’s Hospital in Columbus, and B.K.
was played for the jury. During that interview B.K. disclosed that “him (sic)
[referring to Dad] touches our private part,” and pointed to the vaginal area of an
anatomically-correct female drawing. (08/10/2012 Video Interview Tr. of B.K. at
14). When Westgate followed-up and asked B.K. if “[h]e touches your pee-pee,
right there?” (pointing to the vaginal area of an anatomically-correct female
drawing) B.K. nodded her head in affirmance. (Id.). B.K. also described in detail
7
Convictions regarding B.K. comprised renumbered counts 9, 10, 11, 12, 13, 14, 15, and 16 of Kruse’s
indictment.
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how Kruse would “put medicine on it [referring to Kruse’s penis],” and that the
medicine would come from his bathroom. (Id. at 16-17). B.K. also told Westgate
that “him [Kruse] open - - him (sic) say open your mouth and suck his pee-pee and
I didn’t want to.” (Id. at 31).
{¶59} Kruse defends this testimony by contending that B.K. “transferred”
the abuse she suffered by a sibling to Kruse. However, the record contains no
evidence of Kruse’s theory of “transference” in this case. Nevertheless, B.K. was
able to identify and differentiate her sibling from her father.
{¶60} B.K. was also able to differentiate between Kruse and her sibling when
she discussed her sexual abuse (by Kruse) with Angela Adkins (“Adkins”), B.K.’s
foster mother. (05/15/15 Tr., Vol. 2, at 233-34). B.K. revealed to Adkins that she
was abused by Kruse separate from a sibling. (Id. at 239-40). The following
exchange occurred between Adkins and counsel for the state:
Q. (Questioning by Attorney Kinsler for the State) When she
opened up to you, what did she discuss?
A. (Adkins) She would - - really didn’t go into a lot of details
with me, but she would kind of share with me what would - - what
she had talked about in counseling and just kind of her feelings,
that she was sad, and she did mention bad touches and - -
Q. Did she explain who was giving her the bad touches?
A. Yes.
Q. And who was that?
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A. That was her father.
Q. Did she ever describe anybody else as giving her bad
touches?
A. Not in any detail.
Q. Can you explain that answer a little bit?
A. Well, yeah. She touched lightly on * * * as well, her brother.
Q. Okay. Anyone outside of those two names then?
A. No.
(Id.).
{¶61} Thus, competent and credible evidence supports that B.K. knew that
she was abused by Kruse and by a sibling, and that she was able to differentiate the
abuse involving Kruse separately from her sibling. After reviewing the record, we
cannot say that the jury lost its way and created a manifest miscarriage of justice
regarding the convictions involving B.K. Accordingly, we find Kruse’s arguments
regarding his convictions involving B.K. are without merit.
Convictions regarding S.K.
{¶62} Lastly, Kruse contends that his convictions of rape, sexual battery, and
gross sexual imposition8 regarding S.K. were against the manifest weight of the
8
Convictions regarding S.K. comprised renumbered counts 21, 22, and 23 of Kruse’s indictment.
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Case No. 14-16-15
evidence. In support of this argument, Kruse points to the fact that S.K. recanted
her abuse allegations, and that there was no physical evidence presented by the state.
{¶63} As an initial matter, we note that S.K. did not testify that Kruse abused
her, unlike F.K. In fact, S.K. only disclosed to F.K. and N.D. that Kruse had
sexually abused her. Specifically, S.K. testified as follows:
Q. (Questioning by Attorney Michner for the State) Okay, what
did you say?
A. (S.K.) [N.D.] asked me questions if dad put his thing in my
mouth and that I was scared and that I had to lie and I said yes.
Q. So, you told her that dad had put his thing in your mouth?
A. Yes.
Q. Did that really happen?
A. No.
(05/18/2015 Tr. at 11). And on cross-examination, S.K. testified as follows:
Q. (Cross Examination by Attorney McNeal for Kruse) And
after you went outside and played, did you talk to any of your
brothers and sisters about what happened?
A. (S.K.) Yeah, [N.D.] asked me questions.
Q. Okay, and what did [N.D.] ask you?
A. If dad put his thing in my mouth.
Q. And you said no, didn’t you?
A. I said yes.
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Q. Oh, you said he did put something in your mouth?
A. Yes.
Q. What did he put in your mouth?
A. His thing.
Q. Okay.
A. But it’s not true.
Q. You say it’s not true?
A. Yeah.
(Id. at 13). Further, when S.K. was interviewed by Emily Combes (“Combes”), a
social worker at the Center for Family Safety and Healing at Nationwide Children’s
hospital, S.K. failed to disclose any sexual abuse by Kruse to Combes. (05/14/15
Tr., Vol. II, at 174-75).
{¶64} However, the State’s case of abuse of S.K. was premised upon the
testimony of other witnesses. For example, N.D. testified that:
A. (N.D.) * * * He took S.K. inside. Then I went back there tried
(sic) to unlock the doors, and the doors were locked. A few
minutes later S.K. comes out. She’s smiling. We ask her what
was wrong. She said that Jean Paul had her in the bathroom.
Pulled her shirt over her head. He had put some medicine on his
penis and made her suck on it.
(05/13/2015 Tr., Vol. 2, at 183). Further, as discussed herein, F.K. also testified
about this incident involving S.K., corroborating the statements S.K. made to N.D.
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{¶65} N.D. and F.K. were not the only witnesses that testified regarding the
sexual abuse of S.K. Lisa Golden, an Early Child and Mental Health Supervisor
and Behavioral Health Specialist at Nationwide Children’s Hospital counselled
B.K., who disclosed during treatment that she (B.K.) observed S.K. getting “not
okay touches from dad.” (05/18/15 Tr. at 44).
{¶66} We are mindful that the weight to be given the evidence and the
credibility of the witnesses are matters primarily for the trier of fact. State v.
DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
The trier of fact has the authority to “believe or disbelieve any witness or accept part
of what a witness says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 277 (1964). “The choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio
St.3d 120, 123, 489 N.E.2d 277 (1986).
{¶67} The jury had the opportunity to evaluate the credibility of each of the
witnesses. Viewing the conflicting reports of abuse, with the role of the jury in
mind, we cannot say that the jury lost its way and created a manifest miscarriage of
justice in convicting Kruse on counts involving S.K.
{¶68} Accordingly, Kruse’s assignments of error are hereby overruled.
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{¶69} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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