State v. Stober

[Cite as State v. Stober, 2014-Ohio-1568.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-13-09
v.
JEREMY STOBER, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2012 CR 89
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: April 14, 2014
APPEARANCES:
F. Stephen Chamberlain for Appellant
Todd C. Schroeder for Appellee
Case No. 12-13-09
SHAW, J.
{¶1} Defendant-appellant Jeremy Stober (“Stober”) appeals the March 28,
2013, judgment of the Putnam County Common Pleas Court sentencing Stober to
an aggregate prison term of 10 and one-half years following Stober’s jury trial
convictions for Sexual Battery in violation of R.C. 2907.03(A)(7), a felony of the
third degree, three counts of Gross Sexual Imposition in violation of R.C.
2907.05(A)(1), all felonies of the fourth degree, and Importuning in violation of
R.C. 2907.07(B)(1), a felony of the fifth degree.
{¶2} The facts relevant to this appeal are as follows. On September 17,
2012, Stober was indicted in an eight count indictment for Tampering with
Evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree (Count
1), four counts of Gross Sexual Imposition (“GSI”) in violation of R.C.
2907.05(A)(1), all felonies of the fourth degree (Counts 2, 4, 6 and 7), Sexual
Battery in violation of R.C. 2907.03(A)(7), a felony of the third degree (Count 3),
Importuning in violation of R.C. 2907.07(B)(1), a felony of the fifth degree (Count
5), and Attempted Sexual Battery in violation of R.C. 2923.02(A) and R.C.
2907.03(A)(9), a felony of the fourth degree (Count 8). (Doc. 1). The Bill of
Particulars specified that there were three alleged victims of the crimes, and that
the crimes took place over a time span ranging from 2001 through 2012. (Doc.
158).
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{¶3} On September 18, 2012, Stober was arraigned and pled not guilty to
the charges against him. (Doc. 18).
{¶4} On October 31, 2012, Stober filed a “Motion for Relief from
Prejudicial Joinder,” arguing that “it would be prejudicial to [Stober’s] defense to
join together in one trial all eight Counts consisting of different victims, spanning
a time frame over eleven years.” (Doc. 38).1 On December 14, 2012, the State
filed a response to this motion, contending that the law favored joinder, that the
offenses were of the same or similar character, and/or that they were part of a
course of criminal conduct. (Doc. 54). The State also contended that the
testimony of the separate witnesses would have been admissible anyway under
Evid.R. 404(B). (Id.)
{¶5} On January 7, 2013, a hearing on pending motions was held.
Regarding the “Motion for Relief from Prejudicial Joinder,” after hearing
arguments from both sides, the trial court stated that case law supported joinder for
similar type offenses and overruled Stober’s motion. (Jan. 7, 2013 Tr. at 7). An
entry reflecting this was filed January 22, 2013. (Doc. 71).
{¶6} The matter subsequently proceeded to a jury trial, which was held on
February 25-28, 2013. At trial, the State called 22 witnesses in its case-in-chief
1
Stober also filed various other motions including, inter alia, two motions in limine (Docs. 40; 42), a
motion for change of venue (Doc. 41), a motion to suppress (Doc. 47), and a motion to dismiss Count 1 of
the Indictment (Doc. 66). None of these motions are related to the assignments of error in this appeal,
therefore we will not further discuss them.
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and 5 rebuttal witnesses. Stober called ten witnesses on his behalf and also took
the witness stand himself.
{¶7} Testimony was presented that Stober was a teacher at Kalida High
School, beginning in the fall of 1993, and later employed by the school as a
technology coordinator, while still occasionally teaching. (Tr. at 1245). Stober
was also the high school girls’ varsity volleyball coach for Kalida. (Id. at 1246-
1247).
{¶8} Karen Fortman testified at trial that she took a class taught by Stober
in 1994, Stober’s second year as a teacher, and that in that class, Stober singled her
out and made a “spectacle” of her. (Tr. at 314). Fortman testified that the
constant teasing prompted her to leave class one day and go to the guidance office
to request out of Stober’s class. (Tr. at 315). Fortman testified that after hearing
of this, Stober called her to his office after school, closed the door and apologized.
(Tr. at 317). According to Fortman, Stober then said that when he looked at
Fortman, he thought of her as someone he would want to be married to. (Id.)
{¶9} Mary Lynn Lanham testified at trial that she also played volleyball for
Stober, and graduated in 2001. She testified that while in high school, Stober sent
her messages on ICQ chat. (Tr. at 343). Lanham testified that Stober asked her
about her personal life. (Tr. at 343-44). Lanham also testified that Stober sent her
a message one day that said if Stober “was [her] age [he] could see [himself] with
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[Lanham], that [she] was his type.” (Tr. at 344). Lanham showed her mother this
message, who testified to the same at trial. (Tr. at 730). Lanham did not report
the incident, however, because she did not want it to affect volleyball, which was
very important to her at the time. (Tr. at 345).
{¶10} J.L. was the first alleged victim to testify at trial. J.L. testified that
she played volleyball for Stober and that she graduated from Kalida in 2002. (Tr.
at 357). J.L. testified that one day, Stober called J.L. into his office to talk about a
cookout. (Id. at 359). J.L. then testified that Stober said he cared about her and
her opinion. (Id.) Following this comment, J.L. testified that Stober hugged her,
pressing against her, having contact with her breasts. (Tr. at 360-361). J.L.
testified that the hug felt sexual to her, had a lasting effect on her, and that she did
not reciprocate in any manner. (Id.) That contact was the basis for the filing of
Count 2, Gross Sexual Imposition (“GSI”), in the indictment.2 J.L. testified that
she told her parents about the incident, but she did not want to give up volleyball,
so she did not take it any further. (Tr. at 363-364).
{¶11} J.L. also testified that years later, in 2008, she began a teaching
career as a substitute at Kalida. (Tr. at 369). J.L. testified that one day in 2009
Stober came into her room, shut the door, and asked her why she did not tell
Stober about her pregnancy. (Tr. at 373). Stober also said to J.L. that he thought
2
Stober was acquitted of this charge.
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J.L. was going to “wait around for [him].” (Id.) J.L. testified that Stober “made
some kind of inference about his wife, something happening to his wife,” adding,
“[w]eren’t you going to wait for something to happen to Kristi, so that you and I
can be together?” (Id.)
{¶12} Jenna Missler testified at trial that she was a Spanish teacher at
Kalida. (Tr. at 483). Missler testified that Stober initiated instant-messaging
contact with her. (Tr. at 484). Missler testified that the messages began by being
work related then became more personal. (Tr. at 484). Missler testified that
Stober often sent messages to her that ended in “smiley” faces. (Id.) Missler
testified that the comments Stober sent her, specifically in 2006-2007, eventually
crossed the line, and she brought the comments to the sexual harassment
director/coordinator. (Tr. at 512).
{¶13} C.K. was the second alleged victim who testified at trial. C.K.
testified that although she was a student at Kalida, she did not have Stober as a
teacher and she did not play volleyball. (Tr. at 535). C.K. testified that she came
into school one day after she changed her hair color, and while in class she
received a text message about her hair looking nice from an unknown number.
(Id. at 537). C.K. responded by asking who it was, and received the response,
“you’ll find out.” (Id.)
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{¶14} After talking with other girls, C.K. learned that the number that had
messaged her was Stober’s. (Tr. at 539). C.K. testified that she and Stober then
engaged in regular texting with each other. (Tr. at 542). C.K. testified that the
texts were “flirtatious” in nature and that Stober would talk to her about a
relationship. (Tr. at 544-545). C.K. testified that Stober told her that he and his
wife did not have sex anymore. In addition, C.K. testified that Stober sent her text
messages that made her feel good, such as calling her beautiful. (Tr. at 545).
{¶15} C.K. testified that some of the text messages were overtly sexual,
with Stober going so far as to say that he masturbated while he thought of her, that
“he would be so big he would tear [her] up” and that “he could please [her] and he
could do so many things with [her].” (Tr. at 542, 544-45) C.K. testified that
Stober told her that he had a video of himself masturbating and that he could send
it to C.K. (Tr. at 559). Although the video was never sent, this video was later
located on one of Stober’s cell phones.
{¶16} C.K. testified to an incident wherein she was alone with Stober in his
office, and Stober grabbed her butt and moaned, “grumbling like he liked it.” (Tr.
at 546). C.K. testified to a separate incident wherein she was alone with Stober in
his office, and Stober exposed his penis to her and caused her to touch it. (Tr. at
565). These incidents, alleged to have occurred between March 2010 and
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February of 2011 led to the State filing the GSI charge against Stober in Count 4
of the indictment.3
{¶17} C.K. testified that Stober eventually sent her messages asking about
her parents’ schedule. (Tr. at 547-48). C.K. testified that she lived with her
father, who worked third shift, and that she informed Stober of this. (Id.) C.K.
testified that about a week after she informed Stober of her father’s schedule,
Stober showed up at her house around 4 a.m. and knocked on the door. (Id. at
552). C.K. testified that
I opened the door, I peeked my head around the corner; and I
seen him, and I froze. And he had stepped forward into the
house, pushing me backwards down onto the couch. Then he
started feeling up my shirt and down my shorts, was kissing me.
Proceeded to take my shorts off, stuck his fingers inside me and
then his penis.
(Tr. at 552). C.K. testified that she was too scared to say no. (Tr. at 552). C.K.
testified that when Stober finished, he pulled up his shorts and walked out the
door. (Tr. at 553). According to C.K. this occurred in June of 2010. This incident
led to the State filing the Sexual Battery charge in Count 3 of the Indictment.
{¶18} C.K. testified that the messages continued from Stober, including
continued talk of a potential relationship with C.K. (Tr. at 554). C.K. testified
that she told Jeff Burke about the texts and that she was uncomfortable receiving
3
The dates in the Indictment were amended to comport with the evidence presented at trial. (Tr. at 1380).
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them. (Tr. at 558). She also testified that she told the guidance counselor about
receiving messages. (Tr. at 559). C.K. testified that the text messages stopped
around Thanksgiving after she graduated from high school. (Tr. at 569). She
testified that she had negative emotions, and later texted Stober, “asking him why
he did it.” (Tr. at 570). According to C.K., Stober messaged back asking who it
was that was messaging him. (Id.) C.K. testified that she messaged back, calling
him “a sick fuck,” a text which C.K. testified Stober never acknowledged. (Id.)
{¶19} C.K. testified she did not initially want to come forward to be
involved because she was embarrassed, but did so after H.Z. asked her to do so.
(Tr. at 582). C.K. testified that Stober directed her to erase a text message Stober
had sent her about not being able to have kids, so she had nothing to worry about.
(Tr. at 661). This was one of the instances of Tampering with Evidence leading to
the filing of Count 1 of the Indictment.4
{¶20} H.Z. was the third alleged victim that testified at trial. H.Z. testified
that she was a 2012 Kalida graduate who had played volleyball for Stober. (Tr. at
752). H.Z. was also a neighbor of Stober’s. (Id.) H.Z. testified she was in 7th
grade when she received her first text message from Stober, but for years the
messages were supportive and volleyball related. (Tr. at 753-754). H.Z. testified
that the messages turned sexual when she began dating her first boyfriend. (Tr. at
4
Stober was acquitted of this charge.
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757). H.Z. testified that Stober told her that her boyfriend did not deserve her and
that Stober could do better. (Id.)
{¶21} H.Z. testified that Stober asked about her sex life and made
comments about using his fingers on her, and later, he talked about oral sex. (Tr.
at 754-758). These messages Stober sent to H.Z. allegedly occurred prior to H.Z.
turning 16 and led to the State filing the Importuning charge in Count 5 of the
Indictment.
{¶22} According to H.Z., the text messages between her and Stober
continued through her sophomore year and into her junior year. (Id.) H.Z.
testified that some of the messages, but not all, were sexual. (Tr. at 762). H.Z.
testified that she had an eating disorder, and was depressed. (Tr. at 767-768). She
testified that some of the messages Stober sent her were supportive. (Id.) She also
testified that Stober talked about his personal life a lot, saying that H.Z. could
“fix” Stober’s problems with his wife. (Tr. at 764, 766).
{¶23} H.Z. testified that the summer after her junior year, in June of 2011,
she drove to Stober’s residence and stopped in the driveway to drop off a paper for
a Volleyball camp. (Tr. at 773). H.Z. testified that Stober reached past the form
she had clearly extended out of the car and grabbed her breast. (Id.) H.Z. testified
that Stober acted as though it was an accident. (Tr. at 774). H.Z. testified that she
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then left, but later Stober messaged her saying he wished she would come back.
(Id.) This contact led to filing of the GSI charge in Count 6 of the Indictment.
{¶24} H.Z. testified that her senior year the text messages from Stober were
more than ever sexual, and that she continued to struggle with emotional
problems, an eating disorder, depression, and suicidal thoughts. (Tr. at 777). H.Z.
testified that she messaged Stober saying she was fat, and he said “prove to me
you’re fat.” (Tr. at 780). H.Z. sent him a picture of a scale showing her weight.
(Id.) In response, Stober called her down to his office and told H.Z. to lift up her
shirt. (Id.) Stober then put his hand on H.Z.’s waist, and ran it along to her
“bottom” and then “laughed it off like it was no big deal.” (Id.) This contact was
alleged to have occurred between August 2011 and October 2011, and led to the
filing of the GSI charge in Count 7 of the Indictment.
{¶25} H.Z. testified that Stober drove her to a volleyball all-star game that
H.Z. was playing in and Stober was coaching. (Tr. at 784). H.Z. testified that on
the drive, Stober put his hand on her leg, squeezed it, and said they could go off
into the woods. (Tr. at 787). H.Z. declined and they continued on to the game.
(Id.) H.Z. testified that it was clear to her that Stober’s intentions were sexual.
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(Id.) This incident led to the filing of the Attempted Sexual Battery charge in
Count 8 of the Indictment.5
{¶26} H.Z. testified that she was an office assistant at the Kalida High
School during her free time, and that she eventually showed one of the messages
Stober sent her to Nancy Grote, who worked in the office as a secretary. (Tr. at
796). H.Z. also confided in Amy Recker, a religion teacher, about the messages
she was receiving from Stober. (Tr. at 793).
{¶27} H.Z. was told that more evidence was needed, so she took it upon
herself to initiate text messages with Stober. (Tr. at 797). H.Z. testified that she
knew Stober would turn the messaging sexual, and he did. (Tr. at 798-801). Amy
Recker then showed the text messages to school authorities, made a transcript of
them, and the school authorities contacted the police. (Tr. at 1067).
{¶28} The text “transcript” that was typed by Amy Recker was introduced
into evidence, but no other text “content” was introduced into the record. (Tr. at
1069). Amy Recker testified that before H.Z. decided to text Stober, they
attempted to obtain the records of prior text message content, but were told they
could not get them. (Tr. at 1065). However, the State did introduce voluminous
cell phone records of Stober, indicating that he had exchanged thousands of text
5
Stober was acquitted of this charge.
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messages with C.K. and H.Z over a period of months, as far back as the records
could be traced.6 The content of prior text messages could not be reproduced.
{¶29} In his case-in-chief, Stober called several witnesses who testified that
they had never seen or witnessed Stober do anything inappropriate. Several of
Stober’s former volleyball players testified that Stober would say things like they
looked nice, but they did not find the comments inappropriate or offensive.
Throughout the trial, Stober’s counsel painted the State’s case as a “witch hunt.”
{¶30} Stober also took the stand in his own defense. Stober admitted to
texting his volleyball players, and admitted that he messaged H.Z. and C.K. (Tr.
at 1250, 1343-1360). Stober testified that his messages with H.Z. began when she
would watch Stober’s house while he was on vacation. (Tr. at 1250). Stober
testified that personal texts were exchanged between him and H.Z., as H.Z.
disclosed things to him. (Tr. at 1252).
{¶31} Stober testified that he also helped coach baseball, and that a former
baseball player of his committed suicide. (Tr. at 1253). Stober testified that the
suicide “shook” him and that he “wasn’t ever going to let that happen again.” (Tr.
at 1255).
6
While the record reflected that thousands of text messages had been exchanged between Stober and C.K.
and Stober and H.Z., Stober maintains on appeal that there were really only five or six text “conversations”
per month between Stober and the girls, containing multiple “lines” of texts each, so that the actual number
of texts exchanged was not in the thousands.
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{¶32} Stober testified that H.Z. talked about suicide, and that he sent her
many supportive messages. (Tr. at 1256-57). Stober testified that he tried to play
a father figure role with H.Z. and that any sex-related talk came out of H.Z.’s
questions. (Tr. at 1266). Stober testified that H.Z. was not truthful, and that he
did not grab H.Z.’s butt or stomach. (Tr. at 1292-1293).
{¶33} Stober testified that alleged victim J.L. was a babysitter for his
children when they were younger, and that J.L.’s family was close to his. (Tr. at
1279). He testified that he doesn’t recall the “hug” J.L. described, and that he was
initially happy when J.L. came back to Kalida as a teacher because he thought she
could take over coaching volleyball one day. (Tr. at 1281-1285).
{¶34} Stober testified that alleged victim C.K. was lying, that he had never
been to C.K.’s father’s house, and that her allegations were untrue. (Tr. at 1289).
Stober also testified that he did not squeeze C.K.’s butt or cause her to touch his
penis. (Id. at 1289-90) Stober testified that C.K. was also lying about the
masturbation video, saying that he made it and offered to send it to his mistress,
Lori Fisher, who also testified at trial. (Tr. at 1273). Fisher testified on rebuttal
that Stober never mentioned the masturbation video to her or sent it to her. (Tr. at
1404).
{¶35} Following the witnesses’ testimony and the parties’ closing
arguments, the case was submitted to the jury. After deliberating, the jury
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returned Not Guilty verdicts on Count 1, Tampering with Evidence, Count 2,
Gross Sexual Imposition of J.L., and Count 8, Attempted Sexual Battery of H.Z.
Stober was found Guilty of Count 3, Sexual Battery of C.K., Count 4, Gross
Sexual Imposition of C.K., Count 5, Importuning of H.Z., and Counts 6 and 7,
Gross Sexual Imposition of H.Z.
{¶36} On March 18, 2013, Stober’s sentencing hearing was held.7 The
State recommended that Stober receive maximum prison sentences on each count
to be served consecutively for an aggregate prison term of 10 and one-half years.
Two of the victims who had testified at trial gave brief statements. Stober’s
counsel then made an argument in mitigation. Ultimately, the trial court sentenced
Stober to maximum, consecutive sentences for each count, for an aggregate prison
term of 10 and one-half years. A judgment entry memorializing Stober’s sentence
was filed March 28, 2013.
{¶37} It is from this judgment that Stober appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE APPELLANT WAS DENIED DUE PROCESS AND A
FAIR TRIAL PURSUANT TO U.S. CONST. AMEND. V, VI
AND XIV AND OHIO CONST. ART. 1 § 10 WHEN THE
TRIAL COURT DID NOT ORDER AN ACQUITTAL OF THE
THREE GROSS SEXUAL IMPOSITION AND
IMPORTUNING CHARGES AT THE CLOSE OF THE
7
Stober was also classified as a sex offender and notified of his duties under his classification at the
hearing.
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STATE’S CASE AS THE EVIDENCE WAS INSUFFICIENT
TO SUSTAIN A CONVICTION.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN
IT GAVE AN INCORRECT JURY INSTRUCTION THAT A
LESSER SHOWING OF “FORCE” APPLIED AS AN
ELEMENT TO THE GROSS SEXUAL IMPOSITION
CHARGES WHICH DENIED THE DEFENDANT DUE
PROCESS OF LAW AND A FAIR TRIAL PURSUANT TO
U.S. CONST. AMEND. V, VI AND XIV AND OHIO CONST.
ART. 1 § 10.
ASSIGNMENT OF ERROR 3
THE APPELLANT WAS DENIED DUE PROCESS AND A
FAIR TRIAL PURSUANT TO U.S. CONST. AMEND. V, VI
AND XIV AND OHIO CONST. ART. 1 § 10 AS HIS
CONVICTIONS FOR SEXUAL BATTERY AND GROSS
SEXUAL IMPOSITION (COUNT IV) WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND THE
JURY’S VERDICT WAS INCONSISTENT WITH THE
EVIDENCE AND TESTIMONY PRESENTED.
ASSIGNMENT OF ERROR 4
THE APPELLANT WAS DENIED DUE PROCESS AND A
FAIR TRIAL PURSUANT TO U.S. CONST. AMEND. V, VI
AND XIV AND OHIO CONST. ART. 1 § 10 WHEN THE
TRIAL COURT JOINED THE CHARGES AND DENIED HIS
MOTION FOR RELIEF FROM PREJUDIDICIAL JOINDER.
ASSIGNMENT OF ERROR 5
THE APPELLANT WAS DENIED DUE PROCESS AND A
FAIR TRIAL PURSUANT TO U.S. CONST. AMEND. V, VI
AND XIV AND OHIO CONST. ART. 1 § 10 WHEN THE
TRIAL COURT IMPROPERLY ALLOWED NUMEROUS
404(b) WITNESSES.
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ASSIGNMENT OF ERROR 6
THE APPELLANT WAS DENIED DUE PROCESS AND A
FAIR TRIAL PURSUANT TO U.S. CONST. AMEND. V, VI
AND XIV AND OHIO CONST. ART. 1 § 10 WHEN THE
PROSECUTOR ENGAGED IN MISCONDUCT DURING
TRIAL AND IN HIS CLOSING STATEMENT AT TRIAL,
WHICH CONDUCT SUBSTANTIALLY PREJUDICED THE
APPELLANT AND MISLED THE JURY.
ASSIGNMENT OF ERROR 7
THE APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN
THE APPELLANT’S TRIAL COUNSEL FAILED TO
PROTECT APPELLANT’S RIGHTS AT TRIAL.
ASSIGNMENT OF ERROR 8
THE TRIAL COURT FAILED TO MAKE THE NECESSARY
FINDINGS UNDER R.C. 2929.14(C) FOR THE IMPOSITION
OF CONSECUTIVE SENTENCES AND FOR IMPOSING A
MAXIMUM SENTENCE.
ASSIGNMENT OF ERROR 9
THE APPELLANT WAS DENIED DUE PROCESS AND A
FAIR TRIAL AS THE ERRORS COMMITTED BY THE
TRIAL COURT, THE PROSECUTOR, AND THE
APPELLANT’S TRIAL COUNSEL COMBINED TO DENY
THE APPELLANT A FAIR TRIAL.
First Assignment of Error
{¶38} In Stober’s first assignment of error, he argues that there was
insufficient evidence to convict him for the three GSI charges and the Importuning
charge. Specifically, with regard to the Importuning conviction, Stober contends
that the State did not establish H.Z. was under 16 when she was receiving sexually
solicitous messages from Stober. With regard to the GSI convictions concerning
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C.K. and H.Z., Stober argues that the State’s evidence as to the requisite element
of “force” was insufficient.
{¶39} When an appellate court reviews a record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d
384, 2005–Ohio–2282, ¶ 47, citing State v. Jenks, 61 Ohio St.3d 259 (1991),
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89 (1997). Sufficiency is a test of adequacy, and the
question of whether evidence is sufficient to sustain a verdict is one of law. State
v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
Sufficiency of the Evidence for Stober’s Importuning
Conviction (Count 5)
{¶40} In this case, Stober was convicted of Importuning in violation of
R.C. 2907.07(B)(1), which reads, in pertinent part, as follows
(B)(1) No person shall solicit another, not the spouse of the
offender, to engage in sexual conduct with the offender, when
the offender is eighteen years of age or older and four or more
years older than the other person, and the other person is
thirteen years of age or older but less than sixteen years of age,
whether or not the offender knows the age of the other person.
{¶41} Stober argues on appeal that the testimony was not clear beyond a
reasonable doubt that H.Z. was solicited prior to turning 16. In addition, Stober
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also contends that it is not clear beyond a reasonable doubt that Stober ever
solicited H.Z. to engage in sexual conduct.
{¶42} At trial, H.Z. gave the following testimony.
Q [Prosecutor]: Was there ever a point when those text
messages began getting sexual?
A [H.Z.]: Yes.
Q: And do you recall when that was?
A: It was sophomore year during volleyball season when I was
dating my very first boyfriend.
Q: And while you were dating your very first boyfriend, the
defendant would text you sexually?
A: Yes.
Q: And would that include what sort of references?
A: He basically would say that, you know, my boyfriend didn’t
deserve me; that he could do so much better; that guys in my
grade were immature, and that he is a mature kind of guy; and
he could show me what, you know, a true, like someone who –
someone who is like me, like how I should be treated.
Q: And would he speak sexually to [you]?
A: He would ask me like about my sex life and if, you know, if
I have done anything with him; and he would sometimes make
comments saying, well, let me know when this happens; let me
know, you know, when you do this for the first time.
Q: Did he ever make any comments via text messaging about
using his fingers on you?
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A: Yes.
Q: And was that all of your sophomore year?
A: Yes.
Q: And would he make any references to you performing oral
sex on him?
A: That was not until junior year.
Q: So your sophomore year in the fall, there were references to
him penetrating you with his fingers?
A: Yes.
Q: When is your birthday?
A: January 16th.
Q: What Year?
A: 1994.
Q: And would that make you 15?
A: Yes.
Q: Your Sophomore year?
A: Yes.
Q: And that’s when you were receiving these text messages?
A: Yes.
(Tr. at 758-759).
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{¶43} On cross-examination, H.Z. was further questioned about these text
messages.
Q[Stober’s Counsel]: Okay. Okay. Now, when you say he
would talk to you about using his fingers and things of that
nature, was he telling you basically how things might happen
sexually?
A [H.Z.]: No. He said that he would use his fingers, not
somebody could use theirs. It was he using his.
Q: On who?
A: On me.
Q: Okay. And this was your sophomore year?
A: This was my sophomore year.
Q: And what was your response to that?
A: I didn’t really have a response. I mean, sometimes when he
– he said it more than once. There were times where I would
say, coach, you have a family, you have a wife. Other times I
would just let it go and say, ha ha, or, yeah, I guess, guess so.
(Tr. at 830-831).
{¶44} Based on the foregoing testimony, we find that there was sufficient
testimony presented for a jury to have determined beyond a reasonable doubt that
Stober solicited sexual contact from H.Z. before she turned 16. H.Z. was
specifically asked if Stober’s conversations regarding “using his fingers” on her
occurred while she was 15 and she said that they did. Under these circumstances,
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viewing the evidence in a light most favorable to the prosecution, we find that a
rational trier of fact could find all of the elements of Importuning proven beyond a
reasonable doubt.
Sufficiency of the Evidence for Stober’s GSI Convictions
{¶45} Stober was also convicted of three counts of GSI in violation of R.C.
2907.05(A)(1), which reads as follows.
(A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the
offender, to have sexual contact with the offender; or cause
two or more other persons to have sexual contact when any
of the following applies:
(1) The offender purposely compels the other person, or one of
the other persons, to submit by force or threat of force.
{¶46} “Force,” for the purposes of GSI, is defined in R.C. 2901.01, as “any
violence, compulsion, or constraint physically exerted by any means upon or
against a person or thing.” In order to prove force, the State “need not prove
physical resistance to the offender” in prosecutions for GSI. R.C. 2907.05(D).
{¶47} The Ohio Supreme Court has addressed the issue of “force” or
“threat of force” in multiple cases. In State v. Eskridge, 38 Ohio St.3d 56 (1988),
the Ohio Supreme Court held,
[t]he force and violence necessary to commit the crime of rape
depends upon the age, size and strength of the parties and their
relation to each other. With the filial obligation of obedience to
a parent, the same degree of force and violence may not be
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required upon a person of tender years, as would be required
were the parties more nearly equal in age, size and strength.
Eskridge, at paragraph one of the syllabus citing State v. Labus, 102 Ohio St. 26,
38–39, (1921).
{¶48} The Court in Eskridge continued, stating that given the “coercion
inherent in parental authority” when a parent abuses his or her child, the requisite
force “‘need not be overt and physically brutal, but can be subtle and
psychological. As long as it can be shown that the * * * victim’s will was
overcome by fear or duress, the forcible element * * * can be established.’”
(Emphasis added.) Id. at 58–59, quoting State v. Fowler, 27 Ohio App.3d 149,
154, (8th Dist.1985).
{¶49} In State v. Dye, 82 Ohio St.3d 323 (1998), the Ohio Supreme Court
further held that the lesser showing of force principles established in Eskridge also
applied to situations where a parent-child relationship was absent, but the adult
defendant stood in a position of authority over the child-victim. State v. Dew, 7th
Dist. Mahoning No. 08 MA 62, 2009-Ohio-6537, ¶ 106, citing Dye at 55. In such
a case, the Court found that force or threat of force could be met “without
evidence of express threat of harm or evidence of significant physical restraint.”
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{¶50} In interpreting this line of Ohio Supreme Court cases, and the
appellate cases following them, the Seventh District Court of Appeals held in State
v. Dew, 7th Dist. Mahoning No. 08 MA 62, 2009-Ohio-6537, that force, for the
purposes of Rape and GSI, is
“a relative term that depends on the totality of the circumstances
in a certain case.” State v. Rupp, 7th Dist. No. 05MA166, 2007–
Ohio–1561, at ¶ 49. Although the case law holds that a somewhat
lesser showing of force is required when the defendant stands in
a position of authority over the victim, the focus of the inquiry is
whether the victim's will was overcome by fear or duress. See, e.g.,
Eskridge at 58–59, 526 N.E.2d 304.
(Emphasis added.) Dew at ¶ 111.
{¶51} The Ohio Supreme Court has held that
“in determining whether a course of conduct results in duress,
the question is not what effect such conduct would have upon an
ordinary man but rather the effect upon the particular person
toward whom such conduct is directed, and in determining such
effect the age, sex, health and mental condition of the person
affected, the relationship of the parties and all the surrounding
circumstances may be considered.”
State v. Getsy, 84 Ohio St.3d 180, 206 (1998), quoting Tallmadge v. Robinson,
158 Ohio St. 333 (1952).
{¶52} With these standards in mind, we turn to the evidence presented
regarding each of the GSI convictions.
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GSI of C.K. (Count 4)
{¶53} Stober was convicted of one count of GSI with respect to C.K. At
trial, testimony was presented that C.K. was a student at Kalida wherein Stober
was a teacher and the technology coordinator. Although C.K. did not play
volleyball for Stober and did not take any of Stober’s classes, Stober did provide
presentations to C.K. and her classmates in the classroom. Stober also implied
through his testimony at trial that he viewed his relationship with C.K. as a
teacher-student relationship.
Q: So again, you’re being a good person in trying to help out a
student [C.K.]?
A: That’s what teachers do.
(Tr. at 1343). This evidence would establish that Stober was, in fact, an authority
figure to C.K.
{¶54} Regarding the incident that led to this specific charge, C.K. testified
that at the end of her junior year of high school, she had to print an assignment
while in school.8 (Tr. at 592). She testified that she tried to print the assignment
on the “art computer” but was unable to do so. (Id.) C.K. then attempted to print
8
We would note that there was initially a discrepancy in C.K.’s testimony as to the timeframe when this
incident happened. C.K. initially testified it was after June 2010, which would have been in her senior year
of high school. However, later on cross-examination, C.K. corrected her earlier statement, clarifying
multiple times consistently that it was the end of her junior year of high school, prior to June 2010.
Ultimately, at the close of evidence, the State moved to amend Count 4 of the Indictment to include dates
back to March, 2010, which would have covered the end of C.K.’s junior year, and comported with her
testimony. (Tr. at 1380). That amendment was granted. (Id.)
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the assignment in the library, and was again unable to do so. (Id.) The art teacher
then directed C.K. to go to Stober to see if he could figure it out. (Id. at 593).
{¶55} C.K. testified that she went into Stober’s office, opened up the file
and attempted to print it. (Tr. at 594). She testified that it was just the two of
them in Stober’s office at the time, and that when she “stood up and turned
around, he then grabbed [her] hand and put it on his penis.” (Tr. at 594). C.K.
testified that it was not voluntary, it happened quickly, and that she pulled her
hand away. (Tr. at 566).
{¶56} The action described by C.K. has been found to be sufficient to
support a GSI conviction. In State v. Steele, 5th Dist. No. 2011-CA-110, 2012-
Ohio-3777, the Fifth District Court of appeals held that testimony of a victim that
a defendant “grabbed her hand and pulled it over to his penis” constituted
sufficient evidence for a reasonable person to conclude beyond a reasonable doubt
that a GSI had been committed. Steele at ¶¶ 53-56.
{¶57} Nevertheless, this is not the only incident mentioned in C.K.’s
testimony leading to the filing of Count 4 in the indictment. C.K. also testified
that on the day her senior class photo was taken, she was again alone with Stober
in Stober’s office and he “grabbed [her] butt.” (Tr. at 565). C.K. testified that
when Stober “grabbed [her] butt,” he was “[m]oaning and grumbling like he liked
it.” (Tr. at 546).
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{¶58} C.K. testified at one point that Stober told her “not to tell anyone.”
(Tr. at 567). However, it is unclear from the transcript whether this was in
reference to the sexual text messages, the incidents leading to the GSI charge, the
incident leading to the sexual battery charge, or in reference to a specific line of
questioning wherein C.K. testified that Stober sent her messages that he
masturbated in the bathroom while thinking of her. (Tr. at 566-567).
{¶59} C.K. testified that in her senior year she told her guidance counselor
that Stober was sending her text messages, but not the content of the messages.
(Tr. at 559). She also testified that she told a man named Jeff Burke, who she
looked at like a “father figure” about the fact that Stober was sending her text
messages. (Tr. at 558). C.K. told Burke that the messages made her
uncomfortable. (Id.)
{¶60} Burke testified that in the spring of C.K.’s junior year, C.K. confided
in him that she was getting text messages and candy from Stober. (Tr. at 670).
Burke testified that C.K. “didn’t appreciate” receiving the messages from Stober.
(Id. at 671). He testified, however, that C.K. asked him to keep it confidential, so
he did. (Id.)
{¶61} C.K. testified that she did not report the sexual contact initially,
“[b]ecause after I had told the guidance counselor that [Stober] was texting me,
nothing, it wasn’t investigated, nothing was done about it, so I thought that nobody
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really cared.” (Tr. at 604). C.K. also testified that later, when being interviewed
by the police, she was reluctant to disclose everything because she believed people
would blame her. (Tr. at 647). She also testified that she told investigating
officers that she felt she should have said no because she knew better. (Tr. at
647).
{¶62} Based on the testimony and the totality of the circumstances, we find
that there was sufficient evidence to convict Stober of GSI of C.K. Force was
present during the incident where Stober caused C.K. to touch his penis. In
addition, there was evidence presented from which a jury could reasonably
conclude that C.K. was under a measure of duress, or compulsion, preventing her
from revealing these incidents or resisting them, all of which is sufficient to allow
a jury to reasonably infer the presence of force as outlined above where the
perpetrator is an authority figure.
GSIs of H.Z. (Counts 6 and 7)
{¶63} Stober was convicted of two counts of GSI of victim H.Z. H.Z. was
a student in Stober’s classes, she played on Stober’s volleyball team from her
sophomore through her senior year of high school, and she was also Stober’s
neighbor. In addition, Stober testified that he played a father-figure role with H.Z.
(Tr. at 1264-1265).
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{¶64} As stated above, Stober began sending H.Z. text messages as early as
her seventh grade year, but the messages were originally about volleyball and did
not turn “sexual” in nature until her sophomore year. H.Z. testified that the
messages, including the sexual messages, continued into her junior and senior
years of high school. H.Z. testified that she was struggling with emotional
problems, an eating disorder, depression, and suicidal thoughts. H.Z. testified that
she confided this to Stober. (Tr. at 778). H.Z. testified that occasionally her
conversations with Stober concerned her eating disorder. (Id. at 780).
{¶65} H.Z. testified that she worked as an office aide in the high school
along with Carol Kahle, and Nancy Grote, who were high school secretaries. (Tr.
at 779). H.Z. testified that Stober would often call her down to his office in the
school. (Tr. at 779). Nancy Grote testified that when Stober would call H.Z.
down to his office, her demeanor would change. (Tr. at 719-720). Grote testified
that prior to being called down to Stober’s office, H.Z. would be “chatty” and
“happy.” (Tr. at 720). Grote testified that when H.Z. returned from going to
Stober’s office, she would be “quieter” and in one instance, “put her head down.”
(Id.) Grote testified that it bothered her and Kahle, the other secretary. (Id.)
Grote testified that after making these observations, she made an attempt to help
H.Z. avoid going down to Stober’s office. (Tr. at 721). Grote testified that she
would send H.Z. on errands so that she did not have to go down to Stober’s office.
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(Id.) Grote testified that, especially once volleyball season was over, H.Z. did not
need to go down to Stober’s office, yet H.Z. would state that she had to go, so she
would go. (Tr. at 721). These facts, along with Stober’s position as teacher and
coach of H.Z., and Stober’s comments about being a father figure to H.Z., are
sufficient to support Stober being an authority figure to H.Z.
{¶66} H.Z. testified that the first incident leading to a GSI charge in the
indictment occurred in the summer after her junior year, in June of 2011.
Regarding this incident, H.Z. testified as follows.
That was when I had a volleyball camp form that was to be
turned in, and it was turned in late, and I had to go over to his
house to bring it to him; and I was getting ready to go over to a
friend’s house to go lay out and tan, so I had a swim suit on and
silky shorts and a cutoff.
And he came up to my window to get it, and he was also in his
swimsuit. I rolled my window down, and he – I held the paper
out; but he kind of reached in like acting as if the paper was in
there, and he grabbed my breast.
***
Q: Did you stay at the residence or the driveway?
A: Until like he took his hand away and he kind of said, oops,
acting like he didn’t mean to do it, but I knew that he actually
did intend to. And then I just proceeded to say, all right, I’ve
got to go, I’m going to Jill’s house, and I left.
(Tr. at 773-774). H.Z. testified that later that day she received text messages from
Stober wherein Stober stated he wished that H.Z. “would have came back and
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skipped going to Jill’s house.” (Tr. at 774). Stober informed H.Z. that no one was
home at his residence at the time. (Id. at 775).
{¶67} Regarding the second incident leading to a GSI charge in the
indictment, H.Z. testified that her senior year the text messages from Stober were
more sexual than ever. H.Z. testified to the following incident during the fall of
her senior year, during volleyball season. (Tr. at 781).
He would always text me saying, prove to me that you’re fat.
One time I stood on a scale, sent a picture of the weight on the
scale to him. That wasn’t good enough. I went down to his
office one day, and he proceeded to ask me to lift my shirt up so
that he could see my stomach. And then he reached out and
grabbed it and touched it and moved his hand down to my
bottom and kind of laughed it off like it was no big deal.
(Tr. at 780). H.Z. testified that she did not think it was innocent. (Id.)
{¶68} H.Z. testified that volleyball was a positive thing in her life, and she
thought if she told her parents about Stober’s actions her sophomore, junior, or
senior years they would not have let her play volleyball. (Tr. at 789). H.Z.
testified that volleyball was worth it to her to not jeopardize by disclosing Stober’s
actions. (Id.)
{¶69} In addition, H.Z. testified that she had other reservations about
initially disclosing the text messages and the physical contact from the incidents.
She testified,
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Two main [reasons] that come to my head would be that I would
have been benched on the court or that he would have played
one of his mind games with me like trying to get into my head
and then, you know, I would have a bad game so he would have
a reason to bench me.
Also, I, I hate being a person who would cause any problems in
someone else’s family if I did not have to, and I did not want that
to happen between him and his family and to have his kids have
to suffer going through a divorce, two parents going, you know,
where the dad – especially since I was in school and his oldest
son was also in school, like same school that I was. I would have
felt terrible if I would have been the person to break up his
parents.
(Tr. at 789-790).
{¶70} In sum, Stober was an authority figure as teacher and as a coach of
H.Z. in volleyball. Stober’s authority as H.Z.’s coach was part of the reason H.Z.
testified that she was unable to resist or report Stober’s actions earlier than she did.
H.Z. also suffered from mental/emotional issues, and Stober was aware of and
took advantage of these conditions. Stober’s degree of control over H.Z was such
that she felt compelled to show up when Stober messaged her to report to his
office, as corroborated by the testimony from the secretaries that H.Z. did not want
to go, and that going to Stober’s office clearly affected her mental state and
demeanor. In addition, like C.K., it is apparent that H.Z. feared revealing or
resisting these incidents for multiple reasons. All of this evidence was clearly
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sufficient to establish duress and compulsion in the context of an authority figure,
which augments the physical force used to commit the GSIs against H.Z.
{¶71} Based on the entirety of the evidence and the totality of the
circumstances, we find that there was sufficient evidence in this case for the jury
to find beyond a reasonable doubt that Stober committed GSIs as alleged in
Counts 6, and 7. Accordingly, Stober’s first assignment of error is overruled.
Second Assignment of Error
{¶72} In Stober’s second assignment of error, he argues that the trial court
erred when it instructed the jury on “a lesser showing of force” that applies in a
coach/teacher relationship.
{¶73} At the outset, we would note that no objection was raised at the trial
on this issue, therefore, Stober has waived all but plain error. State v. Bustamante,
3d Dist. Seneca No. 13-12-26, 2013-Ohio-4975, ¶ 15. In order to have 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. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain error is to be used “‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’” Id. quoting State v. Long, 53 Ohio St.2d 91 (1978),
paragraph three of the syllabus.
{¶74} In this case, the trial court gave the following instruction on “Force.”
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Force means any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.
When the relationship between the victim and the Defendant is
one of child and coach, or teacher, the element of force need not
be openly displayed or physically brutal. It can be slight or
psychological. Evidence of an expressed threat of harm, or
evidence of significant physical restraint is not required. If you
find that beyond a reasonable doubt that under the
circumstances in evidence, the victim’s will was overcome by
fear or duress, the element of force has been proved.
(Tr. at 1455).
{¶75} Despite Stober’s arguments, the trial court’s jury instructions were
taken directly from the Ohio Jury Instructions and adequately reflect the law as
summarized in the preceding assignment of error regarding “force” when an
authority figure is present. Therefore, we cannot find error, let alone plain error.
Accordingly, Stober’s assignment of error is overruled.
Third Assignment of Error
{¶76} In Stober’s third assignment of error, he argues that Stober’s
convictions for Sexual Battery and GSI concerning C.K. were against the manifest
weight of the evidence. Specifically, Stober argues that C.K.’s testimony
regarding the Sexual Battery and GSI incidents was vague and unbelievable, and
that given C.K.’s age at the time of the offense, she would have remembered more
detail.
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Case No. 12-13-09
{¶77} The Ohio Supreme Court has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and
‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Eastley v.
Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,
78 Ohio St.3d 380 (1997), paragraph two of the syllabus.
{¶78} Unlike our review of the sufficiency of the evidence, an appellate
court's function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict. Volkman,
supra, at ¶ 12; Thompkins, supra, at 387. In reviewing whether the trial court's
judgment was against the weight of the evidence, the appellate court sits as a
“thirteenth juror” and examines the conflicting testimony. Thompkins at 387. In
doing so, this Court must review the entire record, weigh the evidence and all of
the reasonable inferences, consider the credibility of witnesses, and determine
whether in resolving conflicts in the evidence, the factfinder “clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” Thompkins at 387.
{¶79} Stober argues that his convictions for Sexual Battery and GSI of
victim C.K. were against the manifest weight of the evidence. GSI in violation of
R.C. 2907.05(A)(1) has been defined previously. Sexual Battery is defined in
R.C. 2907.03, and reads, in pertinent part, as follows.
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Case No. 12-13-09
(A) No person shall engage in sexual conduct with another, not
the spouse of the offender, when any of the following apply:
***
(7) The offender is a teacher, administrator, coach, or other
person in authority employed by or serving in a school for which
the state board of education prescribes minimum standards
pursuant to division (D) of section 3301.07 of the Revised Code,
the other person is enrolled in or attends that school, and the
offender is not enrolled in and does not attend that school.
Sexual Battery
{¶80} In this case, Stober contends that C.K. was 20 years old at the time of
trial and “[y]et, her testimony was vague and incredible in regard to salient details
that persons exposed to sexual acts would know.” (Appt.’s Br. 14).
{¶81} At trial, C.K. testified that approximately a week before the alleged
sexual intercourse took place, Stober began asking C.K. about her parents’
schedule. (Tr. at 547). According to C.K., her father, who she lived with, worked
third shift. (Tr. at 548). C.K. testified that in June of 2010, “about a week” after
she had given Stober her father’s work schedule, Stober showed up at her
residence at approximately 4 a.m. (Tr. at 550).
{¶82} C.K. testified she was sleeping on her living room couch and was
awakened by knocking at the door. (Tr. at 550). She testified that she went to the
door, and looked outside, and saw Stober “standing in the corner [of her porch]
with his bike.” (Tr. at 551). C.K. testified that Stober was wearing a “T-shirt and
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Case No. 12-13-09
shorts.” (Tr. at 551). C.K. later clarified on cross-examination that Stober was
wearing “khaki or jean” shorts because they were not “mesh soft shorts” and that
his shorts had a “Zipper and snap/button.” (Tr. at 601).
{¶83} C.K. testified that, “I opened the door, and I peeked my head around
the corner; and I seen him, and I froze. And he had stepped forward into the
house, pushing me backwards down onto the couch. Then he started feeling up
my shirt and down my shorts, was kissing me. Proceeded to take my shorts off,
stuck his fingers inside me and then his penis.” (Tr. at 551-552).
{¶84} C.K. clarified on cross-examination that when she said that Stober
pushed her backwards she meant pushing “as in a way of forcing, I guess, without
touching me. He was close to me, backing me, walking towards me, and I’m
backing up backwards.” (Tr. at 607-608). C.K. testified that “[Stober] pretty
much pinned [her] until [she] * * * was down on the couch.” (Tr. at 608). C.K.
testified that because Stober had backed her up so she “couldn’t do anything” she
felt as though Stober had pushed her. (Tr. at 609). C.K. testified that she was “too
scared” to tell Stober “no.” (Tr. at 552).
{¶85} C.K. also testified that she tried “[s]cooting out from under” Stober,
but that she did not push him away forcefully. (Tr. at 627). C.K. further testified
that though she did not forcefully try to get up, “in [her] head [she] * * * wanted to
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get up.” (Tr. at 627). C.K. testified that after Stober was finished he pulled up his
shorts and walked out of the door, without any conversation. (Tr. at 553).
{¶86} Of this incident, Stober simply testified that he did not have sex with
C.K., and that he had never been to C.K.’s father’s residence.
{¶87} On appeal, Stober argues that C.K.’s testimony regarding the
incident of sexual intercourse leading to the Sexual Battery conviction was not
credible because C.K. “could not remember” whether Stober wore a condom, or
whether Stober ejaculated inside her. Stober also contends that C.K.’s claim that
no words were spoken at the time of the incident was not credible.
{¶88} Despite Stober’s characterizations on appeal, C.K. specifically
testified that Stober “did not” wear a condom and she knew because Stober “didn’t
put anything on.” (Tr. at 553). She also testified that she “assume[d]” Stober
ejaculated inside of her. (Tr. at 553). C.K. testified specifically that she had “tried
blocking that day out [of her memory] as much as [she] can.” (Tr. at 632).
Nevertheless, C.K. gave testimony that was consistent on direct and cross-
examination regarding this incident. In addition, the jury was fully able to see and
hear her testimony, as well as Stober’s denial of the incident, and weigh the
credibility of these witnesses. The jury was free to find Stober’s denials to be
disingenuous, and/or otherwise evaluate Stober’s testimony. Under these facts and
circumstances, we cannot find that the jury clearly lost its way on this issue.
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GSI
{¶89} Stober also argues that his conviction for GSI related to C.K. was
against the manifest weight of the evidence. Stober argues that because C.K.
could not remember whether Stober’s penis was erect, her testimony was not
credible. However, C.K. testified that her back was turned when Stober pulled out
his penis. (Tr. at 595). C.K. testified that when she turned back toward Stober,
Stober grabbed her hand and put it on his penis. (Tr. at 595). C.K. testified that
she jerked her hand away, grabbed her “thumb drive” and walked out. (Tr. at
595). C.K. also testified to the incident wherein Stober “grabbed” her butt and
moaned while doing so.
{¶90} In contravention of C.K.’s testimony, Stober claimed that the
incidents did not happen. (Tr. at 1289).
{¶91} The GSI conviction turned on the credibility of C.K.’s testimony and
the credibility of Stober’s denial at trial. The jury was in a far better position to
make a credibility determination on these issues than the appellate court is, and we
cannot find that under these circumstances, the jury clearly lost its way or that
there was a “manifest miscarriage of justice.” Accordingly, Stober’s third
assignment of error is overruled.
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Fourth Assignment of Error
{¶92} In Stober’s fourth assignment of error, he argues that the trial court
erred in denying Stober’s motion to sever the counts against the various alleged
victims into separate trials.
{¶93} The joinder of offenses is governed by Crim.R. 8(A) which provides:
Two or more offenses may be charged in the same indictment * *
* if the offenses charged * * * are of the same or similar
character, or are based on the same act or transaction, or are
based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, or are part of a
course of criminal conduct.
{¶94} “‘It is well-established that the law favors joinder because the
avoidance of multiple trials conserves time and expense and minimizes the
potentially incongruous outcomes that can result from successive trials before
different juries.’” State v. Howard, 2d Dist. Greene No. 2012-CA-39, 2013-Ohio-
2343, ¶ 35, quoting State v. Glass, 2d Dist. Greene No. 2000-CA-74, 2001 WL
228453, *2 (Mar. 9, 2001), citing State v. Schiebel, 55 Ohio St.3d 71, 86–87
(1990). (Other citations omitted.).
{¶95} A defendant can move to sever joined offenses pursuant to
Crim.R.14, which states that, “If it appears that a defendant * * * is prejudiced by
a joinder of offenses * * * the court shall order an election or separate trial of
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counts, grant a severance of defendants or provide such other relief as justice
requires.”
{¶96} “The defendant claiming error in the trial court’s refusal to sever
multiple charges has the burden of affirmatively showing that his rights were
prejudiced.” (Citations omitted.) State v. Skatzes, 2d Dist. Montgomery No.
15848, 2003–Ohio–516, ¶ 147. “To affirmatively show that his rights have been
prejudiced, the defendant ‘must furnish the trial court with sufficient information
so that it can weigh the considerations favoring joinder against the defendant's
right to a fair trial, and [the defendant] must demonstrate that the court abused its
discretion in refusing to separate the charges for trial.’” Glass, supra, at *3–4,
quoting State v. Lott, 51 Ohio St.3d 160, 163 (1990). (Other citation omitted.)
{¶97} “When a defendant claims that he was prejudiced by the joinder of
multiple offenses, a court must determine (1) whether evidence of the other crimes
would be admissible even if the counts were severed, and (2) if not, whether the
evidence of each crime is simple and distinct.” State v. Thomas, 3d Dist. Allen
No. 1-11-25, 2012-Ohio-5577, ¶ 21 citing State v. Schaim, 65 Ohio St.3d 51, 59
(1992). If the evidence of other crimes would be admissible at separate trials, any
“prejudice that might result from the jury's hearing the evidence of the other crime
in a joint trial would be no different from that possible in separate trials,” and a
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court need not inquire further. Id, quoting Drew v. United States, 331 F.2d 85, 90
(1964).
{¶98} Moreover, “a defendant is not prejudiced by joinder where the joined
offenses are ‘simple and direct, so that a jury is capable of segregating the proof
required for each offense.’” State v. Wilson, 2d Dist. Montgomery No. 20910,
2005–Ohio–6666, ¶ 38, quoting State v. Fletcher, 2d Dist. Clark No. 2003–CA–
62, 2004–Ohio–4517, ¶ 41.
{¶99} We review a trial court’s decision on joinder of offenses for trial
under an abuse of discretion standard. State v. Banks, 10th Dist. Franklin No.
09AP–1087, 2010–Ohio–5714, ¶ 30, citing State v. LaMar, 95 Ohio St.3d 181,
767 N.E.2d 166, 2002–Ohio–2128. “The term ‘abuse of discretion’ connotes more
than a mere error in law or judgment; it implies that the court’s attitude was
unreasonable, arbitrary or unconscionable.” Id., quoting State v. Adams, 62 Ohio
St.2d 151, 157 (1980).
{¶100} In this case, Stober made a motion for relief from prejudicial
joinder prior to trial, and this motion was denied. Stober renewed his motion at
trial multiple times, and was denied each time.
{¶101} The jury in this case acquitted Stober of multiple counts, including
counts related to separate victims. The jury acquitted Stober of his only charge
against J.L., acquitted Stober of the charge of Attempted Sexual Battery against
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H.Z., and then also acquitted Stober of the charge of Tampering with Evidence. In
the Tampering with Evidence charge, it was alleged as part of the crime that
Stober instructed C.K. and H.Z. to delete text messages. Thus Stober was, in
effect, acquitted of some accusations related to each alleged victim, showing that
the evidence was simple and direct and that the jury was able to segregate proof
for each offense. Under these circumstances, we fail to see how Stober is able to
establish any prejudice considering the jury was clearly able to discern the
separate crimes and did not appear to be biased by the testimony from the other
incidents.
{¶102} Moreover, the testimony of the other victims could have been
admissible in each other’s trials under Evid.R. 404(B) to show motive, intent,
plan, or scheme. As the evidence could have been admissible in separate trials, we
again cannot find that the trial court erred.
{¶103} Accordingly, Stober’s fourth assignment of error is overruled.
Fifth Assignment of Error
{¶104} In Stober’s fifth assignment of error, he argues that the trial court
improperly allowed witnesses to testify in contravention of Evid.R. 404(B).
Specifically, Stober argues that the trial court improperly allowed the testimony of
five witnesses in this case. Stober contends that these witnesses of the State
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testified to “bad acts” testimony that violated both Evid.R. 404(B) and the Rape
Shield Statute.
{¶105} Evid.R. 404(B), reads as follows.
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. In criminal cases, the proponent of evidence to be
offered under this rule shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
{¶106} “Generally, the prosecution in a criminal case may not present
evidence that the defendant has committed other crimes or acts independent of the
crime for which the defendant is being tried to establish that the defendant acted in
conformity with his bad character.” State v. Thomas, 1st Dist. Hamilton No. C-
120561, 2013-Ohio-5386, ¶ 20, citing Evid.R. 404(B); State v. Brown, 1st Dist.
Hamilton No. C–120327, 2013–Ohio–2720, ¶ 26. However, Evid.R. 404(B)
provides that other bad acts are admissible to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” State v.
Shedrick, 61 Ohio St.3d 331, 337 (1991); Brown at ¶ 26. This list is non-
exclusive. State v. Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, ¶ 18.
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{¶107} The Ohio Supreme Court held in State v. Williams, 134 Ohio St.3d
521, 526, 2012–Ohio–5695, that the admission of other acts evidence is a three-
step process. Williams, at ¶ 22; State v. Guerra, 9th Dist. Lorain No.
12CA010188, 2013-Ohio-5367, ¶ 17.
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the
determination of the action more or less probable than it would
be without the evidence. Evid.R. 401. The next step is to consider
whether evidence of the other crimes, wrongs, or acts is
presented to prove the character of the accused in order to show
activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those
stated in Evid.R. 404(B). The third step is to consider whether
the probative value of the other acts evidence is substantially
outweighed by the danger of unfair prejudice.
Williams at ¶ 20.
{¶108} “Evidentiary rulings at trial are reviewed on appeal for an abuse of
discretion.” State v. Altman, 7th Dist. Columbiana No. 12 CO 42, 2013-Ohio-
5883, ¶ 22, citing State v. Beshara, 7th Dist. Mahoning No. 07 MA 37, 2009–
Ohio–6529, ¶ 55, citing State v. Bey, 85 Ohio St.3d 487, 490 (1999). However, at
trial Stober did not object to any of these witnesses, and has waived the issue on
appeal absent plain error. Crim.R. 52(B).
{¶109} In addition, we would note that under the invited error doctrine, “a
party is not entitled to take advantage of an error that he himself invited or
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induced.” State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849; State
v. Smith, 8th Dist. Cuyahoga No. 79936, 2002-Ohio-3114, at ¶ 30.
{¶110} On appeal, Stober argues that the testimony of five of the State’s
witnesses was inadmissible at trial under Evid.R. 404(B). We will address each in
turn.
Lori Fisher
{¶111} First, Stober argues that Lori Fisher’s testimony was impermissible
under 404(B) and the Rape Shield Statute. Stober contends that Fisher’s
testimony did not concern evidence of pregnancy, semen, or disease and therefore
was not permissible.
{¶112} Fisher testified that she was a teacher at Kalida, and on cross-
examination she testified that she had been having an ongoing affair with Stober
for over a decade. The State elicited testimony from Fisher about text messages
that she exchanged with Stober, which were within minutes of text messages
Stober exchanged with H.Z. and C.K. The State offered this evidence to show that
it must have been Stober that was in possession of his phone at the time these
messages were sent.
{¶113} In addition, Fisher offered testimony that Stober had told her he
could no longer have children, which was similar to a message C.K. said she had
received from Stober. (Tr. at 675).
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{¶114} Prior to Fisher’s testimony, Stober’s counsel specifically stated that
he did not intend to object to Fisher as a 404(B) witness. On cross-examination,
Stober’s counsel drew out the fact that Fisher thought Stober was a good listener,
that he was caring, and that she made the first advance on him. (Tr. at 690).
Fisher also testified on cross, when prompted by Stober’s attorney, that Stober was
always “worried about his ability to please. [Stober] made references that he
would like to have been able to take a male enhancement pill, but didn’t know
how he could take it without his wife finding out.” (Tr. at 692). Stober’s counsel
used this testimony to contradict the testimony of H.Z. and C.K. C.K. testified she
received a text message from Stober wherein Stober stated “he would be so big he
would tear [C.K.] up.” (Tr. at 545). H.Z. later testified that she received a
message from Stober wherein Stober stated “he was so big he could tear [her].”
(Tr. at 791).
{¶115} Moreover, it became clear later when Stober took the stand and
testified that he had made the “masturbation” video for Fisher, that Stober’s
counsel brought in the information regarding their affair to attempt to support that
claim.
{¶116} Thus not only did the State have legitimate purposes for calling
Fisher, but Stober’s counsel had legitimate reasons for wanting her testimony to be
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entered into evidence. Under these circumstances, we cannot find that there was
any error, let alone plain error in allowing her testimony.
Jenna Missler
{¶117} Stober next argues that the testimony of Jenna Missler was
improper under Evid.R. 404(B). Stober argues that Missler was an adult teacher,
and not a student, and thus her testimony was unrelated to the testimony of the
younger, student victims.
{¶118} Missler gave testimony that she was a Spanish teacher at Kalida and
that she received instant messages from Stober. (Tr. at 484). Missler testified that
the messages began about work, but then became more personal. (Tr. at 484).
Those messages contained Stober’s use of a “smiley face,” which she described as
a characteristic of Stober’s messaging. Missler testified that the comments
eventually crossed the line with her and that she spoke to the sexual harassment
coordinator about the messages Stober had sent her. The messages were entered
into evidence as an exhibit. (State’s Ex. 20).
{¶119} On cross-examination, Stober’s counsel went through the alleged
harassing messages from Stober. The messages begin by showing Stober as
helpful, and supportive. (State’s Ex. 20). They also show Stober being helpful to
Missler with her problems at school. (Id.) The messages which Missler stated
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“crossed the line” were when Stober said “and may I add your husband must be
one lucky man…. :),” and “because you seem to look amazing in just about
everything…. that dress yesterday was extremely nice…. :).” (Id.) Stober’s
counsel made it clear that those messages were the extent of Stober’s
“inappropriate” comments to Missler. As the remainder of the conversation
between Stober and Missler showed Stober being helpful to Missler, this
testimony furthered Stober’s counsel’s trial strategy of painting the prosecution of
Stober as a “witch hunt.”
{¶120} Missler’s testimony may have had less of a connection to any of the
indicted charges than any of the other non-victim witnesses. Nevertheless, the
State had some legitimate basis for introducing Missler’s testimony, and Stober’s
counsel also cross-examined Missler in a manner that was consistent with, and
even furthered, his trial strategy. Accordingly, we cannot find any error in
allowing this testimony. However, even if there was error, trial counsel’s cross-
examination of Missler certainly minimized any potential claim of prejudice and
we thus cannot find any reversible error in permitting this witness to testify.
Mary Lynn Kahle
{¶121} Stober next argues that Mary Lynn Kahle’s testimony was
impermissible under Evid.R. 404(B). Kahle testified that she was a volleyball
player for Stober, that Stober added her on ICQ chat, and engaged her in
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conversations, which eventually turned personal. (Tr. at 342-343). Stober told
Kahle that he could see himself in a relationship with her. (Tr. at 344). On cross-
examination Stober’s counsel elicited testimony that Stober never tried to
physically touch Kahle, furthering his argument that the State was conducting a
witch hunt, and that the State was trying to liken the case to “Jerry Sandusky”
when the evidence did not support such a comparison. (Tr. at 353); (Tr. at 292).
{¶122} Moreover, we must note that this testimony, while remote in time to
the charges involving victims C.K. and H.Z., carried a much closer proximity and
similarity to the indicted charge involving victim J.L. in 2001. As there is some
basis for allowing the testimony, and it was clearly used and not objected to as part
of Stober’s counsel’s trial strategy, we cannot find that there was error here, let
alone plain error.
Karen Fortman
{¶123} Stober next contends that the testimony of Karen Fortman was
impermissible under Evid.R. 404(B). Fortman testified that in 1995 she was a
student in Stober’s classes, and that Stober made a “spectacle” out of her.
Fortman testified that she then asked to be removed from Stober’s class in the
future. Fortman testified that Stober subsequently called her into his office, shut
the door, and told her that when he looked at her, he saw someone he would like to
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be married to. On cross-examination, Fortman admitted that there was no sexual
contact between her and Stober.
{¶124} The State again argues that this testimony was permissible to show
Stober’s motive, intent, scheme, plan, or preparation in using his position in the
school to target these girls for sexual advances.
{¶125} Again, while remote in time to the incidents with C.K. and H.Z.,
there is a similarity in Stober’s approach to all three victims and a proximity in
time to the charge involving J.L. As there is some basis for allowing the
testimony, and it was again clearly used as part of Stober’s counsel’s trial strategy,
we cannot find that there was error here, let alone plain error.
J.L.
{¶126} Lastly, Stober argues that some of J.L.’s testimony was
impermissible at trial. The testimony Stober finds objectionable is when J.L.
testified that while working as a substitute, Stober came into her room and asked
J.L. “weren’t you going to wait for me?” (Tr. at 373).
{¶127} The State maintains that this testimony was permissible to help
retroactively corroborate and confirm J.L’s allegation that Stober had a “sexual”
interest in J.L. when he had contact with her as a student several years earlier,
which led to the filing of the GSI charge in Count 2. We agree. Thus the State
had some legitimate basis for introducing this evidence.
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{¶128} Nevertheless, even if the testimony was impermissible, Stober is
unable to establish any prejudice, as Stober was acquitted of the count relating to
J.L., showing that the jury was not biased by this evidence.
{¶129} Accordingly, as we have not found any prejudicial error in the
testimony of these witnesses, Stober’s fifth assignment of error is overruled.
Sixth Assignment of Error
{¶130} In Stober’s sixth assignment of error, he argues that the prosecutor
committed misconduct during the trial. Specifically, Stober contends that the
prosecutor repeatedly expressed his opinion that Stober was a liar during closing
arguments, that the prosecutor urged jurors to put themselves in the place of the
alleged victims, that the prosecutor sought to evoke sympathy for the victims, that
the prosecutor elicited testimony as to whether they believed various witnesses,
and that the prosecutor improperly informed the jury on the element of force.
{¶131} In reviewing claims of prosecutorial misconduct, the test is whether
the prosecutor's remarks were improper and, if so, whether those comments
prejudicially affected the substantial rights of the defendant. State v. Jones, 90
Ohio St.3d 403, 420 (2000). “In making this determination, an appellate court
should consider several factors: (1) the nature of the remarks, (2) whether an
objection was made by counsel, (3) whether corrective instructions were given by
the court, and (4) the strength of the evidence against the defendant.” State v.
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Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995). “The touchstone of analysis ‘is
the fairness of the trial, not the culpability of the prosecutor.’” Id. (Citation
omitted).
{¶132} Prosecutorial misconduct is generally not grounds for reversal
unless it so taints the proceedings as to deprive the defendant of a fair trial. State
v. Johns, 3d. Dist. Seneca No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶
25. Where it is clear beyond a reasonable doubt that the jury would have found
the defendant guilty, even absent the alleged misconduct, the defendant has not
been prejudiced, and his conviction will not be reversed. See State v. Underwood,
2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations
of prosecutorial misconduct in the context of the entire trial. State v. Stevenson,
2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v.
Wainwright, 477 U.S. 168, 106 S.Ct. 2464 (1986).
{¶133} “Parties have wide latitude in their closing statements, particularly
‘latitude as to what the evidence has shown and what inferences can be drawn
from the evidence.’” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-
Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, at
¶ 213. A prosecutor may comment upon the testimony of witnesses and suggest
the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, at
¶ 16.
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{¶134} In this case, Stober first argues that the prosecutor made improper
comments that Stober was a “liar.” In closing arguments, the prosecutor made the
following statements that Stober claims were inappropriate.
And you know the Defendant is a liar, because he took the stand,
and he lied to you about half a dozen times. He lied to you about
getting the information from Nancy, [J.L.]’s mom. He lied to
you about his conversations with Jim McBride, and some
concern about an injury. He lied to you about Lori Fisher, and
that his intent behind the masturbation video, is that it go to her.
And you know he lied to you, because she – she said so. She said,
he never said that to me.
***
And he tried to explain text messages and records and give you
his thoughts on those. Then he had to acknowledge he wasn’t
right at all about that, once I started going through the details of
those records with him. And he said to you, yeah, [H.Z] and I
texted on November 16th, 2011, because she needed a ride, and it
was a last-minute thing, so that’s why I took her and that’s in
there. When he made that statement, he didn’t realize that the
record was going to be shown to him. And when it was, he had
to backtrack, because he lied to you.
(Tr. at 1414-1416).
{¶135} While Stober argues that these statements were improper, witnesses
did give testimony that directly contradicted Stober’s testimony on the stand. As
the prosecutor is entitled to urge the jury to make reasonable inferences from the
evidence, we cannot find that it was improper for the State to argue that Stober
was lying in these specific circumstances.
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{¶136} Stober next contends that the prosecutor improperly “repeatedly
tried to have the jurors put themselves in the place of an alleged assault or in the
place [of] the alleged victims.” (Appt.’s Br. at 24). Stober cites the following
segments as being improper.
She had to announce the homecoming court later that night, and
she recalls with clarity these details, as would you, if it happened
to you.
(Tr. at 1408).
***
And where do these offenses take place? Within the privacy of a
closed space, of a room, where there aren’t witnesses. And if
that wasn’t sufficient for a conviction, we wouldn’t have
convictions in this country for people who commit sex offenses.
If that wasn’t sufficient, you could be grabbed inappropriately,
when no one is around, and no one could do anything about that,
but that’s not how our system works.
(Tr. at 1409).
Because if you’re grabbed, or you’re touched sexually, that case
can’t be prosecuted, can it? If you’re touched sexually, and no
one is present, people aren’t present when these things happen,
God help us all, because I can’t get justice for you.9
(Tr. at 1440).
And if this is not sufficient to establish force, again, God help us
all, because if someone comes up to you and grabs your breast,
9
It should be noted that the Prosecutor used this phrase “God help us all” after defense counsel stated in his
closing argument, “[a]nd this is my final comment to you, and I go back to my opening, if this is proof
beyond a reasonable doubt, heaven help us all.” (Tr. at 1439).
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or your butt, and you don’t want it, and you’re not asking for it
* * *[.]
(Tr. at 1443).
{¶137} After reviewing the passages, we find nothing improper by the
prosecutor for several reasons. First, as part of Stober’s trial strategy, he painted
the State’s case as a “witch hunt” and challenged the authenticity of the alleged
victim’s testimony relating to the incidents that happened without corroborating
witnesses. The prosecutor’s statements in closing argument were in response to
that line of questioning. Second, in the latter two cited portions, the prosecutor
was merely responding to defense counsel’s closing argument that the victims’
word alone was not enough to reach the high bar of beyond a reasonable doubt.
Thus, we cannot find that these statements were improper. However, even if they
were improper, we cannot find that these statements, when taken in context of the
entire trial, deprived Stober of a fair trial.
{¶138} Stober next contends that the prosecutor “sought to evoke sympathy
for the alleged victims.” After reviewing the transcript, we do not find the
prosecutor’s statements to be improper when viewed in context. For example,
Stober argues that the prosecutor improperly stated in closing argument that Karen
Fortman “squirmed in her seat” and “she had to pull it together” after meeting
alone with Stober. Notwithstanding Stober’s argument, this is an accurate
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reflection of the transcript, where Fortman testified that she was “obviously”
squirming in her seat during the incident, and that she was “extremely”
uncomfortable. (Tr. at 317). Fortman also testified that she had to pull herself
together to announce the homecoming court later on the night of the incident. (Tr.
at 320). Therefore, the prosecutor’s statements were a proper characterization of
the testimony. We similarly find that the remaining incidents cited by Stober are
not improper when taken in context.
{¶139} Stober next argues that the prosecutor improperly elicited testimony
from various witnesses during the trial as to “whether they believed and/or
supported the alleged victims.” (Appt’s Br. at 24). After reviewing the transcript,
we do not find any of the incidents cited by Stober to be error. For example,
Stober contends that Jeff Burke was simply a vouching witness. However, Burke
testified that C.K. confided in him long before the allegations in this case were
made that she was receiving unwanted messages from a teacher. Burke’s
testimony countered Stober’s counsel’s cross examination of C.K., wherein
Stober’s counsel challenged C.K.’s reasoning for not coming forward earlier.
{¶140} In addition, Stober argues that Detective Roy Sargent was
improperly asked about other females who came forward in the investigation and
discussed inappropriate messages from Stober. However, Detective Sargent was
only asked about the other females after Stober’s counsel raised the issue, bringing
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up a search warrant that mentioned other potential victims existed. We find that
this incident, and the remaining incidents cited by Stober were not improper when
taken in context.
{¶141} Finally, Stober argues that the prosecutor improperly stated
incorrect definitions of the law regarding force during closing arguments.
Notwithstanding the prosecutor’s statements during closing argument, which we
find consistent with the standards discussed previously, the jury was instructed
that closing arguments were not evidence. In addition, we have already
determined that the trial court’s actual jury instructions on force were proper in the
context of this case. Thus, having reviewed the prosecutor’s statements on force,
we cannot find any error that would rise to the level of prejudicial misconduct.
{¶142} In sum, after reviewing the entire record and the arguments made
by Stober, we cannot find that prosecutorial misconduct was present in this case.
Accordingly, Stober’s sixth assignment of error is overruled.
Seventh Assignment of Error
{¶143} In Stober’s seventh assignment of error, he argues that he was
denied his right to effective assistance of counsel. “Reversal of convictions on
ineffective assistance requires the defendant to show ‘first that counsel’s
performance was deficient and, second that the deficient performance prejudiced
the defense so as to deprive the defendant of a fair trial.’” State v. Cassano, 96
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Ohio St.3d 94, 2002-Ohio-3751 at ¶105, quoting Strickland v. Washington, 466
U.S. 668, 669, 104 S.Ct. 2052 (1984). When considering a claim of ineffective
assistance of counsel, the court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
{¶144} A tactical decision by trial counsel, who as a licensed attorney is
presumed to be competent, is not by itself enough to show ineffective assistance of
counsel simply because the strategy did not result in an acquittal. State v. Clayton,
62 Ohio St.2d 45, 48-49 (1980); State v. Timm, 3d Dist. Seneca No. 13-11-23,
2012-Ohio-410, ¶ 31. “Furthermore, trial counsel’s failure to object is generally
viewed as trial strategy and does not establish ineffective assistance.” State v.
Turks, 3d. Dist. Allen No. 1-08-44, 2009-Ohio-1837, ¶ 43, citing State v.
McKinney, 11th Dist. Trumbull No. 2007-T-0004, 2008-Ohio-3256, ¶ 191; State v.
Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103.
{¶145} Stober makes a number of arguments on appeal in an attempt to
establish that his counsel was ineffective. First, Stober argues that his trial counsel
was ineffective for failing to object to the “404(B) witnesses” discussed in the fifth
assignment of error. As we have already found that the testimony of these
witnesses was permissible, and that in any event, there was no resulting prejudice,
we cannot find that Stober’s counsel was ineffective for failing to object. This is
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particularly true in light of the fact that Stober’s counsel clearly wanted to make an
issue of these witnesses having not been physically touched by Stober, in an
attempt to paint the State’s case as a “witch hunt” and a misguided attempt by the
State to compare Stober to Jerry Sandusky.
{¶146} Stober next argues that his trial counsel was ineffective for failing
to object to leading questions used by the State throughout the trial. Evidence
Rule 611(C) provides that “[l]eading questions should not be used on the direct
examination of a witness except as may be necessary to develop his testimony.”
This broad exception places the decision of whether to allow leading questions
within the sound discretion of the trial court. State v. Jackson, 92 Ohio St.3d 436,
449 (2001); State v. Jefferson, 2d Dist. Greene No. 2002 CA 26, 2002-Ohio-6377,
¶ 9. As a result, the Ohio Supreme Court has held that the failure to object to
leading questions does not constitute ineffective assistance of counsel. Jackson,
supra, at 449; State v. Fraker, 3d Dist. Union No. 14-12-19, 2013-Ohio-4561, ¶
59. Thus we cannot find that any failure to object to any leading questions would
rise to the level of ineffective assistance of counsel.
{¶147} Stober next argues that his counsel was ineffective for failing to
object to “vouching,” “demeanor” and “sympathy” testimony from numerous
prosecution witnesses. However, we have already discussed that it was not error
for the prosecutor to elicit the testimony cited by Stober under the sixth
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assignment of error. Therefore, we cannot find his counsel ineffective for failing
to object to this testimony.
{¶148} Finally, Stober argues that his trial counsel was ineffective for
failing to object “to rampant hearsay and other improper testimonies.” (Appt’s Br.
at 29). Stober cites only one example of “rampant hearsay.” As support, he
claims that when Amy Recker was on the stand, Stober’s counsel was ineffective
for failing to object to Recker’s testimony that H.Z. was “depressed,” “sad,” and
was in therapy. At this point in the trial, H.Z. had already testified to severe
emotional problems, which ultimately led to her hospitalization. Even if the
testimony was impermissible, it was merely cumulative to other testimony, and
thus would not be prejudicial. Accordingly, we cannot find that the testimony was
prejudicial, or that Stober’s counsel was ineffective for failing to object to it.
{¶149} In sum, after reviewing the transcripts and the arguments made by
Stober, we cannot find that his counsel was ineffective. Accordingly, Stober’s
seventh assignment of error is overruled.
Eighth Assignment of Error
{¶150} In Stober’s eighth assignment of error, he argues that the trial court
failed to make the necessary findings under R.C. 2929.14(C) for the imposition of
maximum, consecutive sentences.
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{¶151} “A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law.” State v. Upkins, 3d Dist. Shelby No. 17-13-02, 2013-
Ohio-3986, ¶ 8, citing State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-Ohio-
767, ¶ 23 (the clear and convincing evidence standard of review set forth under
R.C. 2953.08(G)(2) remains viable with respect to those cases appealed under the
applicable provisions of R.C. 2953.08(A), (B), and (C) * * *). Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. An appellate
court should not, however, substitute its judgment for that of the trial court
because the trial court is “‘clearly in the better position to judge the defendant’s
dangerousness and to ascertain the effect of the crimes on the victims.’” State v.
Watkins, 3d Dist. Auglaize No. 2–04–08, 2004–Ohio–4809, ¶ 16, quoting State v.
Jones, 93 Ohio St.3d 391, 400 (2001).
{¶152} At the outset, we note that recent amendments to R.C.
2929.14(C)(4) now require a trial court to make additional specific findings before
imposing consecutive sentences on an offender. While the trial court is required to
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make the specific findings, it is not required to list its reasoning for making the
findings. State v. Hill, 3d Dist. No. 7-12-11, 2013-Ohio-3873, ¶ 22. Nevertheless,
with respect to the issues raised in this case R.C. 2929.14(C)(4) states,
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public
from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by
two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's
conduct.
(c) The offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶153} Thus, based on the statute, the trial court is required to make three
findings before imposing consecutive sentences: 1) that consecutive sentences are
necessary to protect the public from the future crime or to punish the offender; 2)
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that consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public; and 3) that
one of the subsections (a), (b), or (c) apply. State v. Farnsworth, 10th Dist.
Franklin No. 12CO10, 2013-Ohio-1275, ¶ 8.
{¶154} In this case, the trial court’s judgment entry states as follows.
The Court has considered the record, oral statements,
Defendant’s pre-sentence investigation report, as well as the
principles and purposes of sentencing under Ohio Revised Code
Section 2929.11 & 2929.12. The Court finds consecutive
sentences are necessary to protect the public and punish the
Offender, and are not disproportionate. The Court further finds
that the convictions are sex offenses.
(Doc. 188). It is clear from the judgment entry that the trial court made the first
required finding, and at least used some of the language of the second required
finding, but it did not make any reference to any of the subsections (a), (b), or (c),
of R.C. 2929.14(C)(4) that applied, either by utilizing any of the language of the
statutory subsection, or by using similar language.
{¶155} At the sentencing hearing, the trial court went further than it did in
its entry.
The Court finds that consecutive sentences are necessary to
protect the public and to punish the offender, are not
disproportionate to the counts found guilty by the verdict. The
Court finds that the harm is so great or unusual that a single
prison term does not adequately reflect the seriousness of the
content [sic].
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(Mar. 18, 2013 Tr. at 20). Thus, at the hearing, the trial court more clearly
referenced the first two findings it is required to make, and utilized some of the
language from subsection (b). However, despite utilizing some of the language of
subsection (b), the trial court still did not make any finding as to whether “[a]t
least two of the multiple offenses were committed as part of one or more courses
of conduct[.]”
{¶156} In State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013–Ohio–1891,
the Eighth District held,
[N]ot requiring slavish adherence to the specific wording of the
statute is not the same as relieving the court of the duty to make
the required “findings.” R.C. 2929.14(C)(4) requires the court to
make specific “findings.” In the past, we have found those
findings can be implicit in context when the court’s statements
during sentencing are intended to encompass the relevant
provisions of the sentencing statutes. But in doing so, we have
arguably frustrated the purposes underlying the requirement
for findings as a predicate for ordering consecutive sentences.
(Internal citation omitted). Venes, at ¶ 14.10
{¶157} In this case, we are mindful of the fact that it seems obvious that
there are multiple courses of conduct and multiple victims. Nevertheless, in State
v. Farnsworth, supra, the 7th District Court of Appeals held that where the trial
court made only two of the three required findings, reversal was warranted for
10
We distinguished Venes in State v. Upkins, 3d Dist. Shelby No. 17-13-02, 2013-Ohio-3986. In Upkins,
the trial court did make all the required findings.
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resentencing. See also State v. Brooks, 9th Dist. Summit Nos. 26437, 26352,
2013-Ohio-2169, ¶ 13 (“[T]his court concludes that [R.C. 2929.14(C)’s] findings
must be made at the sentencing hearing on the record. * * * Ideally, those
findings would also then be memorialized in the sentencing entry.”). In this case,
the findings did not fully comply with R.C. 2929.14(C) in either instance.
{¶158} Accordingly, we have no choice but to find that the trial court failed
to make adequate findings to support the imposition of consecutive sentences.
Therefore, Stober’s eighth assignment of error is sustained.
Ninth Assignment of Error
{¶159} In Stober’s ninth assignment of error, he argues that Stober was
denied due process and a fair trial due to errors committed by the trial court, the
prosecutor, and Stober’s trial counsel. Specifically, Stober contends that the
cumulative errors throughout the trial denied Stober his right to a fair trial.
{¶160} Having sustained no errors regarding Stober’s trial, we cannot find
that there are any errors that collectively have a “cumulative” effect to such an
extent that Stober was deprived of a fair trial. Nevertheless, to the extent that any
errors existed, when taken in context of the entire trial, they are not sufficient to
support reversal. Accordingly, Stober’s ninth assignment of error is overruled.
{¶161} For the foregoing reasons, the judgment of the Putnam County
Common Pleas Court is affirmed in part, and reversed in part and remanded to the
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trial court for resentencing to consider whether consecutive sentences are
appropriate under R.C. 2929.14(C)(4) and, if so, to enter the proper findings on the
record.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
WILLAMOWSKI, P.J. and PRESTON, J., concur.
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