State v. Collins

[Cite as State v. Collins, 2011-Ohio-6365.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 CO 10
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
EARL COLLINS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appeal from the Court of Common Pleas
of Columbiana County, Ohio
Case No. 09 CR 184
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. Timothy J. McNicol
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Douglas A. King
Hartford, Dickey & King Co., LPA
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44113
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 9, 2011
[Cite as State v. Collins, 2011-Ohio-6365.]
WAITE, P.J.
{1} Appellant Earl Collins appeals the December 17, 2009 jury verdict of
the Columbiana County Court of Common Pleas convicting him on one count of rape
with an age specification. The incident occurred during the late evening of March 27,
2008, when Appellant arrived at the home of his friend Lisa Soles to babysit her
daughter, M.S., then nearly three years old. At some time that evening Appellant
removed the child from her room, took her to her mother’s room, removed her
pajama bottoms, and “tickled” her vaginal and anal areas with his tongue before
returning her to her bed. Ms. Soles overheard M.S. talking to Appellant about the
incident the next morning and confronted him. Over the course of that day (March
28, 2008) and during the following week Appellant gave varying explanations for the
incidents of that night, threatened suicide, and refused to disclose his location to
friends and to law enforcement. Appellant then fled the state for an extended period.
On March 28, 2008 M.S.’s mother consulted her pediatrician; the incident was
reported to the Columbiana County Department of Jobs and Family Services, the
police, and the Tri-County Child Advocacy Center, where M.S. was later evaluated.
When Appellant returned to the area, he was indicted on one count of rape with an
age specification. Appellant was tried and convicted on that count and sentenced to
an indefinite term of fifteen years to life.
{2} On appeal Appellant’s first and fifth assignments of error allege
violations of his Fifth Amendment rights based on comments that Appellant alleges
touch on his pre-arrest silence. His second assignment challenges the court’s
decision finding M.S. competent to testify. His third and fourth assignments argue
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Sixth Amendment violations in the deposition of M.S. and in testimony given by Ms.
Soles and Dr. Paul McPherson. Appellant’s sixth assignment of error alleges the jury
was not properly instructed on the state’s burden of proof. His seventh and eight
assignments of error challenge the sufficiency and weight of the evidence. His final,
ninth, assignment of error alleges that cumulative error deprived him of a fair trial. All
of Appellant’s assignments are without merit and the judgment of the trial court is
hereby affirmed.
HISTORY OF THE CASE
{3} On the evening of March 27, 2008, Lisa Soles had arranged to go out
with a friend. Both M.S. and the friend’s son stayed together at Ms. Soles’s house.
Appellant, Earl Collins, was a long-time friend of Ms. Soles and was at that time
frequently spending the night on her couch because he did not have a permanent
home. By prior arrangement Appellant was to watch both children that night. When
he arrived, around ten that evening, both children were asleep. Ms. Soles and her
friend left and Ms. Soles returned alone around midnight. When she entered the
house she asked Appellant if the children had been quiet and was told the children
had slept the whole time. (Tr. Vol. I, p. 167.) While making breakfast the next
morning, Ms. Soles heard her daughter exclaim to Appellant: “Earl, you licked my
peepee. Earl you licked my butt.” (Tr. Vol. I, p. 166.) Ms. Soles confronted
Appellant, who claimed M.S. had defecated in her underwear the night before and
that he cleaned her up, and had “wiped” her, not “licked” her. Ms. Soles noticed that
M.S. was still wearing the same underwear she had been wearing when she was put
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to bed the night before. Ms. Soles asked Appellant about the underwear, and he
said the stool was so hard he had removed it from M.S.’s underwear, but that there
was no mark, so he’d left the same underwear on.
{4} After talking with her daughter Ms. Soles went to her own room and
found M.S.’s pajama bottoms on the floor near her bed. Ms. Soles called Appellant
and told him what her daughter had said; he responded that he wouldn’t watch the
child anymore “if that’s the things she’s going to say.” Ms. Soles assured him he
would no longer be near the child again. (Tr. Vol. I, p. 171.) Ms. Soles then called
her daughter’s pediatrician, Mahoning County Children Services, the child’s father,
and a friend, Pam Sturgeon, who she believed would know what to do because of
her training as a teacher’s aide. M.S. was examined by Ms. Soles, who is a nurse.
An appointment was scheduled for M.S. with the Child Advocacy Center. Ms. Soles
decided not to take M.S. to the emergency room because she did not see any
bleeding and she did not believe, based on M.S.’s statements, that there had been
penetration. (Tr. Vol. I, p. 180.)
{5} During the course of the day Ms. Soles received a second phone call
from Appellant, during which he said that, “* * * if he did it, it was unintentional. He
doesn’t remember. He may have been blacked out or passed out.” (Tr. Vol. I, p.
175.) When Ms. Soles asked why he took M.S. out of her bed he replied that the bed
was too low to change her in. Ms. Soles testified at trial that M.S. was wearing the
same underwear the next morning that she had worn to sleep. She also confirmed
that she found M.S.’s pajama sweat pants, which M.S. had also worn to sleep, on the
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floor in her own bedroom that morning, not M.S.’s. Appellant called her one last time
that day and repeated his assertions “‘* * * again, if I did it, it was unintentionable [sic]
– unintentional. I’m an asshole and I deserve to die if I did it.* * * ‘Do I need to worry
about somebody slashing my throat?’” (Tr. Vol. I, p. 178.) Ms. Soles did not see or
hear from Appellant again until the next fall during court proceedings, more than a
year later.
{6} Ms. Soles went to the police department to report the incident. Ms.
Sturgeon, a friend of both Ms. Soles and Appellant, accompanied Ms. Soles and
allowed the police to record a message left by Appellant on her phone. The
message, which indicated that Appellant was going to harm himself, initiated a series
of phone calls between various police officers, Appellant, and Appellant’s ex-wife
Sheila Reidy. The phone calls culminated with a recorded conversation between
Appellant and Sergeant Dickey in which Appellant stated that he would not harm
himself. (Tr. Vol. I, p. 284.) This conversation was the last contact between the
police department and Appellant until September 30, 2009 when he gave his
brother’s name and birth date instead of his own during a traffic stop. According to
the testimony of various witnesses, Appellant left Ohio for Texas and remained there
for more than a year. Although he may have returned for holidays and may have
spent some time in a camper somewhere in Columbiana County during that period,
law enforcement was not aware of his presence. (Tr. Vol. II, p. 264.) Witnesses
agree that he was absent from the places he usually frequented and many of his
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friends did not see him at all for the entire period from March 28, 2008 until he was
arrested in September of 2009.
{7} When Appellant left Ms. Soles’s house on March 28, 2008, he met up
with Bob Lalley who describes himself as one of Appellant’s “top five” friends at the
time. He spent the day with Mr. Lalley, an upholsterer for whom he occasionally
worked, on a furniture pick-up. Mr. Lalley testified that Appellant was unusually quiet,
left abruptly toward the end of the day, and later called him and said “I did something
I could go to prison for * * * I touched a little girl inappropriately.” (Tr. Vol. II, p. 292.)
Mr. Lalley asked Appellant where he was, but he refused to disclose his location.
Appellant called Mr. Lalley one last time about a week later, and accused him of
spreading rumors. Mr. Lalley responded that he had only repeated what Appellant
had told him. (Tr. Vol. II, p. 294.) Mr. Lalley did not see or hear from Appellant again
until trial.
{8} In addition to occasionally working for Mr. Lalley, Appellant was a
regular employee at United Technical Support Services. His supervisor, Ronald
Duffey, testified that he was a good worker, and that in early May, Appellant
requested an out-of-state transfer to Georgia. Appellant was approved for the
transfer and on May 21, 2008 received a $2500.00 check from his employer for
relocation expenses. Mr. Duffey was surprised when Appellant called three days
later and resigned. Appellant never returned the check. About the same time, on
May 23, 2008, Appellant agreed to meet with Bettina Dillworth, an investigator from
the prosecutor’s office. Appellant said he would meet Ms. Dillworth at the police
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department on May 24, 2008 at 1:00 p.m., the same day he resigned. Appellant did
not keep the appointment. More than a year later, on September 30, 2009, Appellant
was riding in the back of a friend’s pick-up truck. When the truck was stopped and
the occupants asked to identify themselves Appellant gave his brother’s name,
“Chuck,” and his brother’s birth date. (Tr. Vol. I, p. 223.) The officer allowed him to
correct his response, and then arrested him on the outstanding warrant. (Tr. Vol. I,
pp. 224-225.)
PROCEDURAL HISTORY
{9} Appellant was indicted by the Columbiana County Grand Jury on
August 26, 2009 for the conduct alleged to have occurred on March 27, 2008. The
indictment identified a single count of rape in violation of R.C. 2907.02 (A)(1)(b), a
first degree felony, which provides: “[n]o person shall engage in sexual conduct with
another who is not the spouse of the offender or who is the spouse of the offender
but is living separate and apart from the offender, when any of the following applies *
* * (b) [t]he other person is less than thirteen years of age, whether or not the
offender knows the age of the other person.” A jury trial was conducted on
December 16 and 17, 2009. Bettina Dillworth, Lisa Soles, Linda Eveleth, Officer
Richard Pillsbury, Deputy William McGee, Pam Sturgeon, Sheila Reidy, Sergeant
Kevin Dickey, Robert Lalley, Ronald Duffey, and Glenn Verden testified at trial for the
prosecution. The video depositions of M.S. and Dr. Paul McPherson were played for
the jury and introduced into evidence. Donald Reidy testified for the defense. After
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evidentiary rulings, the defense moved for acquittal under Rule 29. The motion was
denied.
{10} A verdict of guilty was returned by the jury on December 17, 2009. The
jury was polled at the request of defense counsel. On December 22, 2009, judgment
was entered and the sentencing disposition scheduled. The sentencing hearing was
conducted on February 12, 2010. On February 19, 2010 the sentence, an indefinite
term of fifteen (15) years to life, with five years of post-release control and required
registry as a “Tier III Sexual Offender,” was entered in the record. Appellant was
given credit for one hundred and thirty-six (136) days served. Appellant filed his
timely appeal on March 2, 2010.
ASSIGNMENT OF ERROR NO. 1
{11} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE PROSECUTOR TO INTRODUCE EVIDENCE OF
DEFENDANT/APPELLANT’S ASSERTION OF HIS FIFTH AMENDMENT RIGHTS
AND BY IMPROPER COMMENT THEREON.”
{12} In this first assignment of error, Appellant cites five instances he alleges
amount to Fifth Amendment violations made during the state’s case-in-chief and
three statements made by the prosecutor in closing he claims are not only violations
of his Fifth Amendment rights, but also are due process violations. Of these, the
statements made during the trial either do not constitute references to protected
silence at all or were introduced, not by the state, but by defense. Only the
statements made in closing actually touch on Appellant’s rights to silence.
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Statements made in closing are not substantive evidence and are not evaluated
under the same rule as statements made during the case-in-chief.
{13} In Appellant’s fifth assignment, he argues prosecutorial misconduct
occurred in connection with these same statements from his first assignment.
Because the subject matter of Appellant’s first and fifth assignments overlap, we will
address these assignments out of turn.
{14} As to his first assignment of error, the Fifth Amendment to the United
States Constitution provides that no person “shall be compelled in any criminal case
to be a witness against himself.” The protections of the Fifth Amendment apply to the
states through the Fourteenth Amendment. State v. Leach, 102 Ohio St. 3d 135,
2004-Ohio-2147, 807 N.E.2d 335, citing Malloy v. Hogan (1964), 378 U.S. 1, 6, 84
S. Ct. 1489, 12 L. Ed. 2d 653. The Ohio Supreme Court considered the Fifth
Amendment implications of pre-Miranda silence in Leach. The Leach Court, noting
that the United States Supreme Court had not yet ruled on the issue, held that “[u]se
of a defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth
Amendment” because “the use of [the defendant’s] pre-arrest silence in the state’s
case-in-chief as substantive evidence of guilt subverts the policies behind the Fifth
Amendment.” Id. at syllabus; ¶30.
{15} Leach involved charges of attempted rape, gross sexual imposition and
kidnapping. The individuals involved had been given access to a third party’s house
while the homeowner was away, but appear to have been instructed not to be there
at the same time. There was no physical evidence offered at trial and the case
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rested solely on the testimony of the individuals concerned. Following the incident,
the homeowner, a friend of the defendant, told the police that the defendant wanted
to speak with them and gave the police his phone number. At trial the police
sergeant was permitted to testify that he used the phone number provided to contact
the defendant. When the sergeant spoke with the defendant, he set up an
appointment for the defendant to come in and talk to him in person. However, the
defendant did not keep the appointment and instead left a message on the
sergeant’s phone indicating that he “wanted to speak with an attorney before talking
with the police.” Id. ¶5.
{16} The Supreme Court found that defendant’s decision to speak with an
attorney was an invocation of his Fifth Amendment rights and that testimony during
the state’s case in chief concerning a defendant’s invocation of the Fifth Amendment
is a violation of that Amendment’s guarantee against self-incrimination. The Court
reasoned that allowing the “[u]se of pre-arrest silence in the state’s case-in-chief
would force defendants either to permit the jury to infer guilt from their silence or
surrender their right not to testify and take the stand to explain their prior silence.” Id.
at ¶31. The Court explained that “[t]o hold otherwise would encourage improper
police tactics, as officers would have reason to delay administering Miranda warnings
so that they might use the defendant’s pre-arrest silence to encourage the jury to
infer guilt.” Id.
{17} The Court distinguished the use of pre-arrest silence in the case in chief
from pre-arrest silence used to impeach. The latter is allowed, because
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impeachment necessarily means the defendant has elected to set aside the
protection and to testify. “[U]se of pre-arrest silence as impeachment evidence is
permitted because it furthers the truth-seeking process. Otherwise, a criminal
defendant would be provided an opportunity to perjure himself at trial, and the state
would be powerless to correct the record.” Id. at ¶33. The Court also distinguished
testimony concerning the defendant’s decision to exercise his right to silence, and to
speak to an attorney, from testimony concerning the fact that the defendant did not
keep an appointment he scheduled with the police. The Court considered and
rejected a “course of the investigation” explanation for the testimony concerning
defendant’s decision to consult an attorney; importantly, however it did determine that
had the sergeant’s testimony in Leach been limited to the fact that an appointment
had been made, but had not been kept, there would be no Fifth Amendment
violation. Id. at ¶32.
{18} The Leach Court found that testimony reflecting a defendant’s decision
to speak to an attorney rather than talk to the police was “intended to lead the jury to
one conclusion * * * that innocent people speak to police to clear up
misunderstandings, while guilty people consult with their attorneys.” Id. The Court
noted repeated references by the state, first in opening, then at multiple points during
the case-in-chief and in closing, to the fact that the defendant chose to speak to an
attorney rather than talk to the police. The Court concluded “the state’s substantive
use of the defendant’s pre-arrest, pre-Miranda, silence substantially subverts the
policies behind the Fifth Amendment privilege against self-incrimination and is not a
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legitimate governmental practice. * * * Therefore, we hold that use of a defendant’s
pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment
privilege against self-incrimination. Because the evidence of guilt was not
overwhelming in this case, the admission of defendant’s pre-arrest pre-Miranda
silence was clearly prejudicial.” Id. at ¶37-38. The Leach Court remanded the matter
for a new trial.
{19} In the matter at bar, there are certainly some factual similarities with
Leach. In neither case did the appellant take the stand. In the matter at bar there
was no physical evidence, although the events described in both cases do not
suggest an abundance of physical evidence existed in either case. Here, Appellant
had been told that the police wanted to talk to him. He called the police to let them
know that he did not intend to commit suicide; but did not discuss with them the facts
of the case or assert his innocence. Similarly, in Leach the defendant spoke to police
but did not discuss the incident with law enforcement. However, in Leach, the
defendant actually said that he must consult a lawyer prior to talking to police,
specifically asserting his Miranda rights in advance. The state then chose to inform
the court, several times in testimony, that the Leach defendant chose to speak to an
attorney rather than to the police. This is the crucial divergence in facts. Mr. Leach
directly asserted his Fifth Amendment rights when he refused to discuss the actual
incidents with the police, instead, clearly stating that he wanted to speak to an
attorney, first. In the matter before us, no such clear action was taken by Appellant.
In fact, at no time did police even get as far in their conversations as to question
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Appellant about the incident. Their efforts were directed towards setting up a
meeting with Appellant to further their investigation and their testimony was limited to
these efforts.
{20} During the state’s case-in-chief Officer Pillsbury testified that on March
28, 2008, after he and Patrolman Moore drove to several locations looking for
Appellant, he spoke with Appellant on the phone. In response to the prosecutor’s
questions, Officer Pillsbury carefully explained that not only was he not the
investigating officer on the case, he was in fact off-duty and had been called in to
assist Patrolman Moore because he had a social relationship with Appellant. Officer
Pillsbury further testified that when he was called in and interacted with Appellant, it
was at that point solely because Appellant’s suicidal statements had been reported to
the police resulting in the need to investigate the potential suicide warning. That
night when Officer Pillsbury finally spoke to Appellant, he told him that there were no
warrants for his arrest and that he and Patrolman Moore were solely concerned
about his physical well being. He also told Appellant that there would, in fact, be an
investigation into the rape allegations and that the police would want to talk to him,
but that their primary concern at that time was in making sure Appellant would not
harm himself. Officer Pillsbury stated that this conversation was the last he had with
Appellant, and that he had not spoken with him as a law enforcement officer or as a
friend since that night. (Tr. Vol. I, pp. 215-217.) He went on to describe the nature of
his relationship with Appellant and his lack of involvement with the rape investigation
beyond March 28, 2008.
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{21} Defense counsel did not object to Officer Pillbury’s testimony. On
appeal, Appellant raises as error Officer Pillbury’s response to defense counsel’s
question: “Officer, I just have one question for you. You believe that it was unusual
that Mr. Collins didn’t come around to the Moose Club with these accusations out
there? Is that what you think?” (Tr. Vol. I, p. 218.) To which Officer Pillsbury
responded “[w]ell, if he was innocent of them, then I see no reason why he didn’t
come in, speak to the police, and continue his life as normal.” Id. Rather than object
or request a corrective instruction, defense counsel continued, “[o]kay, You don’t
think this is embarrassing for someone, maybe they wouldn’t want to be around
people or see people, have people ask them about it?” (Tr. Vol. I, p. 218.) Hence,
the only damaging testimony was actually in answer to Appellant’s own counsel’s
question. Testimony elicited by the defense during the state’s case-in-chief cannot
be construed as an improper attempt by the state to make probative use of a
defendant’s silence. This is not the type of comment Leach is designed to protect
against. To hold otherwise would allow enterprising defense counsel to create
reversible error by deliberately eliciting improper testimony from the state’s
witnesses. On appeal, the state cannot be held responsible for testimony sought and
obtained by the defense.
{22} Similarly, Appellant complains of statements made during the testimony
of Bettina Dillworth, an investigator from the prosecutor’s office who attempted to
interview Appellant before he left the state. A significant portion of what Appellant
describes as testimony that Appellant hindered the investigation into the matter and
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that his failure to give the police a statement delayed his indictment in this matter,
were again responses to defense counsel’s questions. Defense counsel asked, “just,
for clarification, you had indicated that the case wasn’t taken to grand jury because
you were waiting on test results, waiting on statements * * * [w]as Mr. Collins’ [sic]
statement necessary to take this case to grand jury?” (Tr. Vol. II, p. 319.) To which
Ms. Dillworth responded that Appellant’s statement and his DNA would have been
“very helpful” and that because they were unable to locate him they could not request
DNA which they often get “near the beginning of the case” and that both problems
“played in the timeline” of the case. (Tr. Vol. II., pp. 319-320.) Not only was this
testimony not elicited by the prosecutor, it is the type of “course of investigation”
testimony Leach allows and is independently relevant to explain the passage of time
between the incident, the indictment, and the arrest.
{23} The statements made by Officer Pillsbury and Ms. Dillworth are not
examples of the improper use of a defendant’s protected silence that Leach prohibits.
No objection was made to any of the statements and, in fact, any damaging
testimony was solicited by Appellant’s own counsel.
{24} Turning to the comments that were actually solicited by the state,
Appellant argues that comments by other officers and Ms. Dillworth constituted error
because they impinged on his Fifth Amendment rights to protected silence. Appellant
complains that Sergeant Dickey testified that no one in the department was contacted
by Appellant during the investigation despite the fact that the sergeant encouraged
Appellant’s ex-wife to have him get in touch with police. (Tr. Vol. II, p. 284.) He also
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takes issue with the prosecutor’s investigator’s comments. Ms. Dillworth testified
about her attempts to set up an appointment with Appellant. She became involved
with the case when she received a request for assistance from an intake worker at
Children Services. Ms. Dillworth said she did receive a phone call from Appellant on
May 23, 2008. Appellant asked her if she worked for the prosecutor’s office. When
she said yes, she asked to set up an appointment to “talk about some things.”
Appellant responded that “it’s all bullshit” and asked if he would be arrested when
they met. Ms. Dillworth told him that the case was at an investigative stage, they
wanted his perspective, and that he would be able to leave. The two agreed to meet
on May 24, 2008, in the afternoon. (Tr. Vol. II, pp. 310-311.) Appellant did not keep
the appointment. This is the full extent of Ms. Dillworth’s testimony and is limited
solely to the course of the investigation. Unlike the situation in Leach, where the
appellant was asked questions relevant to the incident and refused to answer
because he wished to talk to a lawyer, the scenario with Ms. Dillworth is exactly the
fact pattern the Leach Court specifically held that it would condone: an initial contact
with a defendant to make an appointment that the defendant did not keep. Leach at
¶32. We also note that Ms. Dillworth does not have arrest powers and any
discussion with her, pre-arrest, must be entirely noncustodial.
{25} While Sergeant Dickey’s testimony, in response to the state’s
questions, appears to be entirely gratuitous on the part of the state, once again, his
comments appear to be directed at the lack of cooperation in even an initial
investigation. His testimony that Appellant’s ex-wife was encouraged by police to
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have Appellant contact them to no avail appears to be confined to an appointment
not kept. To the extent it overreaches because it implies Appellant should have
contacted the department and did not, it cannot be said to rise to the level of a Leach
violation. There is law in this state holding that law-enforcement testimony describing
pre-arrest, pre-Miranda discussions with defendants including the defendant’s
decision not to answer certain questions, has been distinguished and exempted from
Leach prohibitions. State v. Onunwor, 8th Dist. No. 93937, 2010-Ohio-5587, ¶55. In
Onunwor, as in the case at bar, the defendant initially made voluntary contact with
the police. In Onunwor, the defendant actually met with the investigating officer.
During his voluntary interview concerning a shooting, the defendant answered some
questions but declined to answer others. The defendant did not testify at trial. The
interviewing officer was allowed to testify as to the initial, voluntary contact, and to the
fact that in response to questions including do you want “to get to the bottom of who
killed [your] mother?” defendant “fell silent.” Id. at ¶50. Sergeant Dickey’s testimony
to the effect that Appellant would not even make an appointment to talk with
investigating officers falls far short of the police testimony permitted by Onunwor.
Thus, it cannot possibly rise to the level of that prohibited in Leach.
{26} Additionally, the issues to be resolved at trial here included the length of
time between the complaint, the indictment, and the arrest as well as the fact that
although Ms. Soles’s bed sheets were later collected for DNA analysis, no evidence
was initially collected, and no interviews were conducted by the Columbiana County
Police Department. During trial, defense counsel elicited testimony from various
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witnesses concerning threats alleged to have been made against Appellant by M.S.’s
family. This testimony was relevant to the defense’s explanation of his flight to Texas
as a fear of reprisal rather than consciousness of guilt. Under the circumstances,
testimony from the various officers concerning the lack of further contact with
Appellant is relevant both to the fact that none of the alleged threats were reported
and as an explanation of the delay between the incident and the indictment.
{27} The worst construction of Sergeant Dickey’s testimony that Appellant
made no further contact with either him or anyone else in the police department is
akin to the interviewer’s testimony in Onunwor that defendant was “unresponsive” to
specific questions during his voluntary interview. Both his testimony and Ms.
Dillworth’s are also independently relevant to the state’s case-in-chief. Appellant fled
the jurisdiction before a complete investigation of the incident. The fact of Appellant’s
departure and prolonged absence is independently relevant to the timeframe of the
criminal case. In contrast to Leach, where there was very little gap between
complaint and indictment and no flight, the officers’ testimony is independently
relevant to the specific facts of the matter at bar. Because the testimony elicited by
the prosecutor in the instant matter had multiple, legitimate, purposes in the context
of the other issues addressed at trial, we cannot find that it was solely relevant to an
impermissible inference of guilt. Unlike Leach, the testimony introduced by the state
at trial was not “clearly meant to allow the jury to infer [Appellant’s] guilt.” For this
reason, and because the testimony did not directly refer to Appellant’s assertion of
his right to silence, but, instead, supported a “course of investigation” argument, we
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cannot find that inclusion of this testimony amounts to a violation of the Fifth
Amendment. The testimony, while questionable, had independent relevance and
does not constitute error. Leach at ¶25.
{28} With regard to the statements made in the state’s case-in-chief
Appellant’s first assignment of error is overruled. We will address statements made
during closing arguments in Appellant’s fifth assignment of error out of order.
ASSIGNMENT OF ERROR NO. 5
{29} “DEFENDANT/APPELLANT WAS DENIED HIS RIGHT TO DUE
PROCESS AND A FAIR TRIAL BECAUSE OF IMPROPER COMMENTS BY THE
PROSECUTION DURING CLOSING ARGUMENT.”
{30} Appellant’s fifth assignment of error restates the Fifth Amendment and
introduces due process challenges to the statements made during the state’s closing.
Neither the Ohio Supreme Court nor the United States Supreme Court has ruled on
whether the use of pre-arrest silence constitutes a due process violation. The Ohio
Supreme Court declined to reach the issue in Leach because it ordered a new trial
based on violations of the Fifth Amendment, alone. Leach, ¶37, fn1. Whether the
conduct identified is a Fifth Amendment and/or a due process violation, the standard
of review for misconduct is the same.
{31} We review allegations of prosecutorial misconduct by first determining
whether the actions by the prosecution were improper, and, if so, whether they
prejudiced Appellant's substantial rights. State v. Treesh (2001), 90 Ohio St. 3d 460,
480, 739 N.E.2d 749. “In determining whether the prosecutor’s statements affected a
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substantial right of the defendant, an appellate court should consider the following
factors: ‘(1) the nature of the remarks; (2) whether an objection was made by
defense counsel; (3) whether the court gave any corrective instructions; and (4) the
strength of the evidence presented against the defendant.’” State v. Scott, 7th Dist.
No. 07 MA 152, 2009-Ohio-4961, ¶85, quoting State v. Breland, 11th Dist. No. 2003-
A-0066, 2004-Ohio-7238, ¶29.
{32} Prosecutorial misconduct will not provide a basis for reversal unless the
misconduct can be said to have deprived Appellant of a fair trial based on the entire
record. State v. Lott (1990), 51 Ohio St. 3d 160, 166, 555 N.E.2d 293; State v.
Skidmore, 7th Dist. No. 08 MA 165, 2010-Ohio-2846, ¶44; appeal not allowed, 2010-
Ohio-4928, 126 Ohio St. 3d 1602, 935 N.E.2d 47. The latitude afforded prosecutors
in closing argument does not “‘encompass inviting the jury to reach its decision on
matters outside the evidence adduced at trial’ or ‘allud[ing] to matters not supported
by admissible evidence.’” State v. Freeman (2000), 138 Ohio App. 3d 408, 419, 741
N.E.2d 566, quoting State v. Hart (1994), 94 Ohio App. 3d 665, 671, 641 N.E.2d 755.
A closing argument is considered in its entirety to determine whether it was
prejudicial. State v. Moritz (1980), 63 Ohio St. 2d 150, 157, 407 N.E.2d 1268;
Skidmore, ¶53. Finally, the test for prosecutorial misconduct focuses on “the fairness
of the trial, not the culpability of the prosecutor.” State v. Noling, 98 Ohio St. 3d 44,
2002-Ohio-7044, ¶91, 781 N.E.2d 88.
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(A) General Misconduct.
{33} In Appellant’s fifth assignment of error he alleges prosecutorial
misconduct in the closing argument. Appellant first argues that the state improperly
appealed to the emotions of the jury by referencing their personal experience of
children and reminding the jury how “tough” testifying had been for M.S., thus,
intending to inflame the passions of the jury. No objection was raised before the trial
court, therefore Appellant has waived all but a plain error review. Crim.R. 52(B). The
plain error doctrine requires that we find an obvious error that affected substantial
rights under exceptional circumstances. Crim.R. 52(B); State v. Barnes (2002), 94
Ohio St. 3d 21, 27, 759 N.E.2d 1240. It cannot be utilized unless the outcome clearly
would have been different if not for the error. State v. Waddell (1996), 75 Ohio St. 3d
163, 166, 661 N.E.2d 1043. Neither of the instances Appellant raises constitutes
plain error.
{34} Appellant’s arguments substantively mischaracterize these statements.
The prosecution, in response to testimony concerning the possibility that the child
witness may have been coached to describe misconduct, referred to the difficulty the
court, the prosecutor, defense counsel, and other witnesses had when questioning
M.S. M.S. was an active child, fidgeting and kicking her feet while seated to answer
questions, and easily distracted. The state’s remark in closing was directed to how
difficult it was to get M.S. to focus and the inference made was that it would be
difficult to coach such a child. The prosecution’s reference to the jury’s “experiences
with children” was a request that they evaluate M.S.’s testimony describing the act in
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the context of their experience of children. It was intended to highlight the fact that
the acts M.S. described were “not concepts that are normal for children to talk about *
* [t]hese are foreign ideas that children have no idea of their significance.” (Tr. Vol. II,
p. 359.) Comment upon testimony is “within the bounds of the prosecutor’s wide
latitude in closing argument.” State v. Davis (1996), 76 Ohio St. 3d 107, 119, 666
N.E.2d 1099. In context, neither statement identified by Appellant constitutes
misconduct. There is no need for the court to “invoke a plain error analysis” if none
“of the complained of prosecutorial comments constituted misconduct.” Id. The
state’s comments in closing concerning M.S.’s demeanor and testimony were not an
improper appeal to emotion, and did not constitute error.
{35} Appellant also argues that the state’s comment on the testimony given
by Ms. Dillworth that established Appellant’s failure to keep his appointment with her
was misconduct. Under Leach, which Appellant mis-cites in support of this
proposition, such testimony is explicitly allowed: “Sergeant Corbett’s testimony that
he had made an appointment to meet with Leach to discuss the case but that the
appointment was not kept is legitimate.” Leach, at ¶32. Since the testimony itself
was appropriate, comment on that testimony is equally appropriate. Davis, supra,
119. These remarks did not constitute misconduct, therefore no error analysis is
required. Id.
(B) Fifth Amendment Violations.
{36} Finally, Appellant also argues that use of the same statements alleged
to be Fifth Amendment violations in his first assignment of error by the prosecutor in
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closing also constitute due process violations. In his closing argument the prosecutor
referred to the testimony given by Officer Pillsbury and Sergeant Dickey. With
reference to Sergeant Dickey’s testimony the prosecutor stated, “[m]ost importantly,
though,* * *he didn’t even tell Sergeant Dickey that he didn’t do it. Here he is, it’s his
only opportunity. It’s the only documentation we have of him talking to an East
Palestine police officer besides Pillsbury * * * and he didn’t even tell Sergeant Dickey
that he didn’t do it when he had the clear opportunity.” (Tr. Vol. II, pp. 371-372.)
Statements made in opening and in closing are not substantive evidence, and as
such are outside the explicit rule articulated by the Ohio Supreme Court in Leach.
However, the use of such statements implicates the exact dilemma the Supreme
Court designed the Leach decision to avoid: “use of pre-arrest silence * * * would
force defendants either to permit the jury to infer guilt from their silence or surrender
their right not to testify and take the stand to explain their prior silence.” Id. at ¶31.
Comment on pre-arrest silence in closing creates the same issue; either a defendant
must forego his right to be (and to remain) silent, or he faces comment on that
silence. At oral argument the state vehemently defended statements made in closing
as fair comment on testimony. The state is incorrect in this argument. The
prosecutor’s comments were an expansion on the “course of investigation” testimony
offered by Sergeant Dickey and was clearly intended as an inference of guilt. No
inference may be drawn from a defendant’s decision to remain silent, pre- or post-
arrest. This comment amounts to misconduct and, hence, constitutes error.
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{37} Statements made in closing concerning a defendant’s Fifth Amendment
protected pre-arrest silence are most analogous to statements made in closing
concerning a Fifth Amendment protected decision not to take the stand. Comments
made by the state in closing on the decision not to take the stand are unanimously
recognized as improper. Nevertheless, due to the wide latitude allowed parties in
summation, although comment on a defendant’s decision not to take the stand
constitutes erroneous misconduct, such comments are not always found to be
reversible error. State v. Thompson (1987), 33 Ohio St. 3d 1, 4-5, 514 N.E.2d 407
(finding that, although the prosecutor in question may be liable for sanction, even
complete sanction, that in the face of overwhelming physical evidence defendant
could not prove prejudice); see also State v. Webb (1994), 70 Ohio St. 3d 325, 328,
638 N.E.2d 1023.
{38} Once again, when the prosecutor commented in closing on Sergeant
Dickey’s testimony, no objection was raised before the trial court, waiving all but a
plain error review of each statement. Crim.R. 52(B). A finding of plain error cannot
be made unless the outcome clearly would have been different if not for the error.
Waddell, supra at 166. Statements must be considered both in the context of the
entire closing and, if found to be error, in the context of the entire trial to determine
whether the error necessitates reversal. The remarks identified by Appellant do not
rise to that level. While these improper comments appear to be both irresponsible
and overreaching, the record contains evidence, if believed, that would convict
Appellant. Although the prosecution’s assertion concerning Appellant’s failure to use
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his “chance” to set the record straight was improper, the jury also had before it
testimony concerning Appellant’s admission to his friend Mr. Lalley; his departure
from the state; his lies about his identity; the various versions of the night’s events
and his statements to Ms. Soles; and M.S.’s consistent description of her experience.
It is impossible to conclude that but for the prosecutor’s statement Appellant would
have been acquitted. The prosecutor’s comment was a single instance of an
improper comment on protected silence that was an expansion on otherwise
appropriate testimony and facts in evidence. In re J.R., 9th Dist. No. 04CA0066-M,
2005-Ohio-4090. The prosecutor’s comments do not rise to the level of plain error.
Neither the material in the record nor the arguments offered by Appellant
demonstrate that the prosecutor’s error was the dispositive element tainting the jury’s
decision. Appellant’s fifth assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
{39} “THE TRIAL COURT ABUSED ITS DISCRETION IN DECLARING M.S.
COMPETENT TO TESTIFY AT AGE 4½ REGARDING EVENTS THAT WERE
ALLEGED TO HAVE OCCURRED WHEN M.S. LESS [SIC] THAN 3 YEARS OLD.”
{40} Appellant’s second assignment of error challenges the trial court
judge’s conclusion that M.S. was competent to testify. Competence is defined by
statute and the evaluation of competence is conducted by the judge. Decisions
regarding competence are discretionary and may be reversed only where there is an
abuse of discretion.
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{41} Ohio Revised Code Section 2317.01, captioned “Competent
witnesses,” provides that “[a]ll persons are competent witnesses except those of
unsound mind and children under ten years of age who appear incapable of receiving
just impressions of the facts and transactions respecting which they are examined, or
of relating them truly * * * any examination made by the court to determine whether a
child is a competent witness shall be conducted by the court in an office or room
other than a courtroom or hearing room, shall be conducted in the presence of only
those individuals considered necessary by the court for the conduct of the
examination or the well-being of the child, and shall be conducted with a court
reporter present. The court may allow the prosecutor, guardian ad litem, or attorney
for any party to submit questions for use by the court in determining whether the child
is a competent witness.”
{42} Competence of a juvenile witness is evaluated using the factors
specified by the Ohio Supreme Court in State v. Frazier (1991), 61 Ohio St. 3d 247:
{43} “(1) the child’s ability to receive accurate impressions of fact or to
observe acts about which he or she will testify, (2) the child’s ability to recollect those
impressions or observations, (3) the child’s ability to communicate what was
observed, (4) the child’s understanding of truth and falsity and (5) the child’s
appreciation of his or her responsibility to be truthful.”
{44} Although the trial court must consider all the Frazier factors when
determining competence, it is not required to make specific findings on each factor
when ruling on competence. Schulte v. Schulte (1994), 71 Ohio St. 3d 41, 43, 715
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N.E.2d 719. “The Frazier factors play a slightly different role in the hands of a court
reviewing a competency determination. As we noted in Frazier, the determination of
competency is within the sound discretion of the trial judge. The Frazier factors form
the backdrop against which a reviewing court evaluates whether the trial judge's
determination was an abuse of discretion.” (Internal citations omitted.) Id. at
syllabus.
{45} There are no magic words that qualify or disqualify a child witness. The
trial court makes a holistic assessment, applying the factors identified by the
Supreme Court. Absent a manifestly arbitrary or capricious decision, an assessment
of the witness’s competence is within the trial court’s discretion as the court is in the
best position to evaluate a witness it has directly examined. The trial court conducted
a competency hearing and spent time questioning M.S. in a manner designed to
address each of the Frazier factors. The fact that M.S. did not answer all of the
questions “correctly,” according to Appellant, does not disqualify her. State v.
Anderson, 154 Ohio App. 3d 789, 2003-Ohio-5439. The trial court tested her ability to
recollect and describe events, names, and people. The trial court discussed with her
the difference between the truth and a lie and addressed whether or not it was
important to tell the truth. The prosecutor and defense counsel both had the
opportunity to ask additional questions. The court’s decision to find M.S. competent
was made within the Frazier parameters. Nothing in the record supports a
conclusion that the decision was unreasonable or arbitrary. Accordingly, we give the
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trial court’s assessment of the witness’s competence due deference and based on
this record, it is affirmed.
{46} Appellant’s second assignment of error is without merit, and is
overruled.
ASSIGNMENT OF ERROR NO. 3
{47} “THE TRIAL COURT ERRED IN PERMITTING THE DEPOSITION OF
THE CHILD WITNESS AND IN PERMITTING THE SAME TO BE CONDUCTED
WITHOUT THE DEFENDANT/APPELLANT PRESENT.”
{48} Appellant’s third assignment of error suggests that the trial court
violated his Sixth Amendment rights by allowing M.S. to be deposed, and deposed in
a separate room. The deposition of a child victim and the use of such a deposition as
testimony are controlled by statute. The same code section, R.C. 2945.481,
establishes the procedures and requirements for the deposition of a child victim of
specific crimes as well as special arrangements for the testimony of a child victim
who is less than 13 in specific crimes, including R.C. 2907.02. M.S. was four years
old in December, 2009. It is apparent, however, that Appellant’s third assignment of
error relies upon a misreading of the statute.
{49} The relevant portions of the statute reads:
{50} “2945.481 Testimony of child victim.
{51} “* * *
{52} “[(A)](2) In any proceeding in the prosecution of a charge of a violation
of * * * 2907.02 * * * in which an alleged victim of the violation or offense was a child
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who was less than thirteen years of age when the complaint, indictment, or
information was filed * * * the judge of the court in which the prosecution is being
conducted, upon motion of an attorney for the prosecution, shall order that the
testimony of the child victim be taken by deposition. The prosecution may also
request that the deposition be videotaped in accordance with division (A)(3) of this
section. * * * The defendant shall have the right to attend the deposition and the right
to be represented by counsel. Depositions shall be taken in the manner provided in
civil cases, except that the judge shall preside at the taking of the deposition and
shall rule at that time on any objections of the prosecution or the attorney for the
defense. The prosecution and the attorney for the defense shall have the right, as at
trial, to full examination and cross-examination of the child victim whose deposition is
to be taken.* * * If a deposition of a child victim taken under this division is admitted
as evidence at the proceeding under division (B) of this section, the child victim shall
not be required to testify in person at the proceeding. * * *
{53} “(3) If the prosecution requests that a deposition to be taken under
division (A)(2) of this section be videotaped, the judge shall order that the deposition
be videotaped in accordance with this division * * * the judge shall exclude from the
room in which the deposition is to be taken every person except the child victim
giving the * * * deposition, and any person whose presence the judge determines
would contribute to the welfare and well-being of the child victim giving the
deposition. The person chosen by the child victim shall not be a witness in the
proceeding and, both before and during the deposition, shall not discuss the
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testimony of the child victim with any other witness in the proceeding. To the extent
feasible, any person operating the recording equipment shall be restricted to a room
adjacent to the room in which the deposition is being taken, or to a location in the
room in which the deposition is being taken * * * so that the person operating the
recording equipment can see and hear, but cannot be seen or heard by, the child
victim giving the deposition during the deposition. The defendant shall be permitted
to observe and hear the testimony * * * and shall be restricted to a location from
which the defendant cannot be seen or heard by the child victim giving the
deposition, except on a monitor provided for that purpose. * * * A deposition that is
videotaped under this division shall be taken and filed in the manner described in
division (A)(2) of this section * * * and, if a deposition that is videotaped under this
division is admitted as evidence at the proceeding, the child victim shall not be
required to testify in person at the proceeding * * *
{54} “* * *
{55} “(B)(1) At any proceeding in a prosecution in relation to which a
deposition was taken under division (A) of this section, the deposition or a part of it is
admissible in evidence upon motion of the prosecution if the testimony in the
deposition or the part to be admitted is not excluded by the hearsay rule and if the
deposition or the part to be admitted otherwise is admissible under the Rules of
Evidence. For purposes of this division, testimony is not excluded by the hearsay
rule * * * if both of the following apply:
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{56} “(a) The defendant had an opportunity and similar motive at the time of
the taking of the deposition to develop the testimony by direct, cross, or redirect
examination.
{57} “(b) the judge determines that there is reasonable cause to believe that,
if the child victim who gave the testimony in the deposition were to testify in person at
the proceeding, the child victim would experience serious emotional trauma as a
result of the child victim’s participation at the proceeding.
{58} “(2) Objections to receiving in evidence a deposition or a part of it
under division (B) of this section shall be made as provided in civil actions.
{59} “* * *
{60} “(C) * * * testimony of the child victim to be taken in a room other than
the room in which the proceeding is being conducted and be televised, by closed
circuit equipment, into the room in which the proceeding is being conducted to be
viewed by the jury, if applicable, the defendant, and any other persons who are not
permitted in the room in which the testimony is to be taken but who would have been
present during the testimony of the child victim had it been given in the room in which
the proceeding is being conducted. * * *
{61} “(D) * * * testimony of the child victim to be taken outside of the room in
which the proceeding is being conducted and be recorded for showing in the room in
which the proceeding is being conducted before the judge, the jury, if applicable, the
defendant, and any other persons who would have been present during the
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testimony of the child victim had it been given in the room in which the proceeding is
being conducted. * * *
{62} “(E) For purposes of divisions (C) and (D) of this section, a judge may
order the testimony of a child victim to be taken outside the room in which the
proceeding is being conducted if the judge determines that the child victim is
unavailable to testify in the room in the physical presence of the defendant due to
one or more of the following:
{63} “(1) The persistent refusal of the child victim to testify despite judicial
requests to do so;
{64} “(2) The inability of the child victim to communicate about the alleged
violation or offense because of extreme fear, failure of memory, or another similar
reason;
{65} “(3) The substantial likelihood that the child victim will suffer serious
emotional trauma from so testifying.
{66} “* * *
{67} “(F)(2) A judge who makes any determination regarding the
admissibility of a deposition under divisions (A) and (B) of this section, the
videotaping of a deposition under division (A)(3) of this section, of the taking of
testimony outside of the room in which a proceeding is being conducted under
division (C) or (D) of this section, shall enter the determination and findings on the
record in the proceedings.” (Emphasis added.)
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{68} On December 2, 2009 the prosecution moved for a deposition to be
conducted pursuant to R.C. 2945.481, indicating that Appellant was charged with a
violation of R.C. 2907.02, that the child victim in question was less than thirteen (13),
and that the state intended to offer this testimony as evidence in lieu of live
testimony. The state’s motion clearly provides for compliance with the statutory
procedure: “[t]he State further agrees to make all necessary ‘technical’ arrangements
for the videotaping of the child’s deposition, including the required monitors for both
the child victim and Defendant pursuant to R.C. 2945.481(A)(3).” (12/2/09 Motion to
Take Videotaped Depo.) The trial court set the motion for a hearing on December 7,
2009. The hearing was conducted on the record. Defense counsel objected to the
taking of the deposition, arguing that Appellant must be present unless the court
makes a finding that the defendant’s presence at the deposition would harm the child
prior to the deposition. The state agreed that such a finding is necessary to admit the
deposition at trial, but stated that the deposition itself could go forward as provided
under the rule, without this finding. The court specifically agreed with the prosecutor
that the deposition could proceed pursuant to rule without a finding of harm, and
found that the factors alluded to by defense counsel went to admissibility, not the
conduct of the deposition itself. The court granted the motion for video deposition on
the record and ordered the state “to make all necessary arrangements” for the
deposition. (12/8/09 J.E.)
{69} In Appellant’s third assignment of error he confuses the statutory
requirements for a deposition to be taken pursuant to R.C. 2945.481(A)(2) and the
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requirements for a child victim to be allowed to testify outside of the courtroom
pursuant to R.C. 2945.481(C) or (D). Under the plain language of the statue, the
prosecution may move for a deposition, and may request that the deposition be
videotaped as described, and the court “shall” grant those motions and make
arrangements for the deposition to be conducted as described in the statute. R.C.
2945.481(A)(2) and (3). A motion for deposition and “request” that the deposition to
be videotaped, pursuant to R.C. 2945.481(A)(3), does not trigger the requirements of
R.C. 2945.481(E) identified by Appellant. Motions for deposition may be granted
without any inquiry into the mental state of the child, refusal of the child to speak, or
inability of the child to communicate in the presence of defendant. If, however, the
prosecution seeks to enter the deposition into evidence or offer the deposition in lieu
of testimony, additional findings must be made. R.C. 2945.481(A)(2), (A)(3), (B).
{70} Appellant’s third assignment of error challenges only the decision to
allow the video deposition pursuant to R.C. 2945.481(A)(3), arguing that the
deposition may only be conducted outside the presence of the defendant if the
requirements of R.C. 2945.481(E) have been met. This is simply not the case. The
requirements of R.C. 2945.481(E) explicitly apply only to sections (C) and (D) which
qualify testimony given outside the courtroom. When a deposition is offered in
evidence it must then satisfy part (B), which requires that the deposition have been
conducted in a manner that fully allowed defendant, with similar motive and
opportunity, to develop testimony as at trial. The requirements of (B)(1)(a) and (b)
are similar, but not identical to the requirements of (E).
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{71} The state moved for deposition in accordance with the law, the court
held a hearing on the motion, heard objections, determined the applicability of the
statute and ruled on the record allowing the deposition. During the deposition
Appellant’s counsel was present in the room with M.S., and Appellant appeared from
the county jail using the court’s video arraignment equipment. (12/7/09 Status Conf.
Tr., p. 6; 12/15/09 Comp. Hrg. Tr., pp 11-12; M.S. Depo., p. 2.) This is specifically
allowed pursuant to the statue that allows for deposition. At trial, prior to permitting
the state to play the deposition in lieu of testimony, the court found the conditions
specified in R.C. 2945.481 had been met. (Tr., Vol. I, p. 132.) Appellant does not
complain that the deposition was improperly admitted; rather, that it was improperly
allowed to be taken in the first place. Appellant bears the burden to affirmatively
show error by reference to the record. There is nothing in the record that
demonstrates any irregularity in the deposition. Absent an affirmative showing and in
light of the state’s explicit acknowledgment of the audio/visual requirements of R.C.
2945.481(A)(3) this Court “has no choice but to presume the validity of the lower
court’s proceedings.” Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197,
199, 400 N.E.2d 384. Appellant’s third assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 4
{72} “THE TRIAL COURT ERRED IN PERMITTING INADMISSIBLE
HEARSAY TESTIMONY WHICH THE JURY RELIED UPON TO REACH ITS
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GUILTY VERDICT IN CONTRAVENTION OF THE DEFENDANT/APPELLANT’S
SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSERS.”
{73} Appellant’s fourth assignment of error challenges the trial court’s
decision to allow testimony by Lisa Soles and Dr. Paul McPherson of statements
made by M.S. No hearsay objection was made at trial to the testimony of Ms. Soles
identified by Appellant. Appellant has waived all but plain error with regard to Ms.
Soles’ statements. The state argues that the child’s statements, as described by Ms.
Soles, are excited utterances and admissible under that exception to the hearsay
rule. Objections to the testimony of Dr. McPherson were made, and overruled during
his video deposition. Questions of admissibility are subject to the discretion of the
trial court, absent an abuse of discretion, an appellate court will not disturb the ruling
by a trial court as to the admissibility of evidence. State v. Martin (1985), 19 Ohio
St.3d 122, 129, 483 N.E.2d 1157. An abuse of discretion connotes more than an
error of judgment; it implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157, 16 O.O.3d 169,
404 N.E.2d 144.
{74} “Hearsay” is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). Evidence Rule 802 contains the general prohibition
against the admission of hearsay. It provides: “Hearsay is not admissible except as
otherwise provided by the Constitution of the United States, by the Constitution of the
State of Ohio, by statute enacted by the General Assembly not in conflict with a rule
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of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the
Supreme Court of Ohio.” Exceptions to this general prohibition are enumerated in
Evid.R. 803. Pertinent to this appeal is Evid.R. 803(2), which permits the admission
of the following: “Excited utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the
event or condition.” Although the statements identified by Appellant are hearsay,
they are admissible under exceptions to the hearsay rule.
{75} The admission of excited statements is based on a premise of
reliability. “‘This exception derives its guaranty of trustworthiness from the fact that
declarant is under such state of emotional shock that his reflective processes have
been stilled. Therefore, statements made under these circumstances are not likely to
be fabricated.’” Staff Note to Evid.R. 803(2) citing McCormick on Evidence, § 297
(2d ed. 1972). In essence, “excited utterance must be the product of reactive rather
than reflective thinking: ‘Reactive excited statements are considered more
trustworthy than hearsay generally on the dual grounds that, first, the stimulus
renders the declarant incapable of fabrication and, second, the impression on the
declarant's memory at the time of the statement is still fresh and intense.
Accordingly, Rule 803(2) assumes that excited utterances are not flawed by lapses of
memory or risks of insincerity.’” (Emphasis in original.) State v. Taylor (1993), 66
Ohio St. 3d 295, 300, 612 N.E.2d 316 (citing Weissenberger's Ohio Evidence (1992),
Section 803.16. See, also, 4 Louisell & Mueller, Federal Evidence (1980) 491-492,
Section 439).
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{76} In Potter v. Baker (1955), 162 Ohio St. 488, 55 Ohio Op. 389, 124 N.E.2d
140, the Ohio Supreme Court established a four-part test to determine the
admissibility of a “spontaneous exclamation”:
{77} “Such testimony as to a statement or declaration may be admissible
under an exception to the hearsay rule for spontaneous exclamations where the trial
judge reasonably finds (a) that there was some occurrence startling enough to
produce a nervous excitement in the declarant, which was sufficient to still his
reflective faculties and thereby make his statements and declarations the unreflective
and sincere expression of his actual impressions and beliefs, and thus render his
statement or declaration spontaneous and unreflective, (b) that the statement or
declaration, even if not strictly contemporaneous with its exciting cause, was made
before there had been time for such nervous excitement to lose a domination over his
reflective faculties, so that such domination continued to remain sufficient to make his
statements and declarations the unreflective and sincere expression of his actual
impressions and beliefs, (c) that the statement or declaration related to such startling
occurrence or the circumstances of such startling occurrence, and (d) that the
declarant had an opportunity to observe personally the matters asserted in his
statement or declaration.” (Emphasis sic.) Id. at paragraph two of the syllabus.
{78} The fact that a statement is made in response to a question does not
preclude it from being considered “excited utterance.” State v. Wallace (1988), 37
Ohio St. 3d 87, 524 N.E.2d 466. The “admission of a declaration as an excited
utterance is not precluded by questioning which: (1) is neither coercive nor leading,
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(2) facilitates the declarant’s expression of what is already the natural focus of the
declarant’s thoughts, and (3) does not destroy the domination of the nervous
excitement over the declarant’s reflective faculties.” Id. at 93.
{79} In Wallace the utterance deemed admissible was made by a five-year-
old victim of assault fifteen (15) hours after the incident in response to questioning.
During the fifteen intervening hours the child victim was unconscious or semi-
conscious. The Wallace Court held “[a] period of unconsciousness, even an
extended period, does not necessarily destroy the effect of a startling event upon the
mind of the declarant for the purposes of satisfying the excited-utterance exception to
the hearsay rule.” Id. at paragraph one of the syllabus. The Court noted that a
period of “[c]ontinuing emotional or physical shock” may prolong the effect of sexual
assault, “particularly when victims are of tender years.” Id. at 90-91, fn 4. See also,
State v. Humphries (1992), 79 Ohio App. 3d 589, 607 N.E.2d 921; State v. Taylor
(1993), 66 Ohio St. 3d 295, 612 N.E.2d 316; State v. Smith (1986), 34 Ohio App. 3d
180, 571 N.E.2d 933 (the time element is not the controlling factor in rape cases, the
controlling elements are the “circumstances as would reasonably show that [the
statement] resulted from impulse rather than reason and reflection.” Id. at 190.)
{80} Also relevant to this assignment of error is Evid.R. 803, which provides
“[t]he following are not excluded by the hearsay rule, even though the declarant is
available as a witness” section (4) of Evid.R. 803 is titled “Statements for purposes
of medical diagnosis or treatment.” Evidence Rule 803(4) allows “[s]tatements
made for purposes of medical diagnosis or treatment and describing medical history,
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or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment” to be admitted in evidence even though they would otherwise
be excluded as hearsay. The Ohio Supreme Court considered the admissibility of
statements made by a child victim at length in State v. Dever (1992), 64 Ohio St. 3d
401, 696 N.E.2d 436, and modifying the earlier rule of State v. Boston (1989), 46
Ohio St. 3d 108, 115, 545 N.E.2d 1220. The Dever Court found “[t]he trial court
should consider the circumstances surrounding the making of the hearsay statement.
If the trial court finds * * * that the child’s statements were inappropriately influenced
by another, then those statements would not have been made for the purpose of
diagnosis or treatment.” Id. at 410. The trial court’s inquiry will necessarily depend
on the facts of each case. Id. The trial court “may consider whether the child’s
statement was in response to a suggestive or leading question * * * and any other
factor which would affect the reliability of the statements (such as [a] bitter custody
battle* * *). If no such factors exist, the evidence should be admitted. The credibility
of the statements would then be for the jury to evaluate in its role as factfinder.” Id.
(A) Testimony of Ms. Soles.
{81} At trial Ms. Soles testified that she woke up on March 28, 2008 and
went into the kitchen to prepare breakfast. While she was in the kitchen, she heard
her daughter’s voice in the next room, speaking to Appellant: “‘Earl, you licked my
peepee. Earl, you licked my butt.’” When she heard what her daughter said, Ms.
Soles came into the living room and asked “‘What did you say?’ And Earl interjected
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and said. ‘Oh, she means I wiped her butt.’” (Tr. Vol. I, pp.166-167.) Ms. Soles said
that Appellant claimed the child had had an accident and that he had cleaned her up,
but not changed her underwear. She also said that while Appellant was talking to
her, he was also collecting his things and left almost immediately. (Tr. Vol. I, p. 169.)
Ms. Soles was then asked by the prosecutor whether M.S. spoke with her after
Appellant left and whether she had asked her daughter questions or if the child had
volunteered information. Defense counsel objected generally “there’s no foundation
for this testimony at this time” and was overruled. (Tr. Vol. I, pp. 169-170.)
{82} Ms. Soles continued as instructed. She testified that when Appellant
left M.S. came into the kitchen with her. While in the kitchen Ms. Soles asked: “‘M.S.,
did you poop the bed last night?’” to which the child replied, “‘No, Mommy, I didn’t
poop the bed.’” (Tr. Vol I, p. 169.) Ms. Soles’ testimony continued:
{83} “* * * ‘Well, what happened?’ ‘Earl got in my bed, Mommy, and under
my covers and he tickled me.’ ‘Okay.’ ‘Then Aiden woke up, Mommy.’ Aiden was
my friend’s son. ‘And Aiden woke up and he wouldn’t go back to sleep and he
wouldn’t be quiet and Earl told him to be quiet and he didn’t. So Earl took me out of
my bed.’ My little girl had a tiny bruise above her eye. And I said, ‘What happened to
your eye?’ ‘When he took me out of bed, he bumped it on the head – the bedpost.’
‘What happened?’ ‘He took me in your room, Mommy.’ I said, “Did you sleep there?’
‘No, Mommy. Earl took my pants off then he took my panties off and then he licked
my peepee and he licked my butt.”
{84} “* * *
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{85} “And then he took her back to her bed.” (Tr. Vol I, p. 170.)
{86} After the preliminary objection to foundation, no hearsay objection was
made by counsel to this testimony concerning M.S.’s statements on the morning of
March 28, 2008 and the subsequent behavioral changes Ms. Soles observed. (Tr.
Vol. I pp. 169-170, 181.) As such, Appellant has waived all but plain error with regard
to the court’s decision to allow these statements. In the context of the extended
period of excitement experienced by a child and a young child’s lack of capacity for
“reason and reflection,” statements made spontaneously upon waking, mere hours
after the conduct described, are well within the court’s discretion to allow under
Evid.R. 803(2). State v. Ashcroft (1998), Butler County App. No. CA 97-11-217;
Wallace, Humphries, etc. supra. M.S.’s initial statement was unprompted, and her
mother’s subsequent open ended questioning does not appear to be inappropriately
suggestive. Wallace, supra. Questions of weight and credibility were for the jury to
settle. The trial court’s decision to allow the testimony was not an abuse of
discretion, nor does it rise to the level of plain error.
(B) Testimony of Dr. McPherson.
{87} Appellant identifies several statements reported to have been made by
M.S. in response to questioning by Dr. McPherson and a statement reported by Dr.
McPherson as having been made by Ms. Soles as part of M.S.’s medical history. No
objection was made to the statements during the state’s direct questioning of Dr.
McPherson. Defense counsel did object to the statement on redirect, and the
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objection was overruled. Due to the objection and the difference in declarant the
statements must be evaluated under separate rules.
(1) Statements Made by M.S.
{88} Dr. McPherson’s observation of M.S. and discussion of her history with
Ms. Soles were for the purpose of diagnosis and designed to elicit relevant
information. Dr. McPherson’s testimony reveals both consciousness of the need to
identify coaching and sensitivity to a child’s susceptibility to suggestive questioning.
(McPherson Depo., pp. 12-14, 18-21, 28-31.) Unlike the circumstances in Boston,
supra, there was no custody battle and no separate motivation to drive a particular
diagnosis. Appellant had, until the incident, by all accounts been Ms. Soles’s good
friend, often present in the home and a frequent babysitter. As described above,
statements made for the purpose of medical diagnosis are an exception to the
hearsay rule, and “physicians, by virtue of their training and experience, are quite
competent to determine whether particular information given to them in the course of
a professional evaluation is ‘reasonably pertinent to diagnosis or treatment’ and are
not prone to rely upon inaccurate or false data in making a diagnosis or in prescribing
a course of treatment.” King v. People (Colo.1990), 785 P.2d 596 (as quoted by
State v. Muttart, 116 Ohio St. 3d 5, 13, 2007-Ohio-5267, 875 N.E.2d 944). In Muttart
the Ohio Supreme Court elaborated:
{89} “We are aware, of course, of the possibility that parents of abused
children may give false information to a physician, including denials or deliberate
misidentifications, see United States v. Yazzie (C.A.9, 1995), 59 F.3d 807, 813, and
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that a victim might deny abuse to the physician, particularly when in the company of
the abuser. Such falsehoods may be a survival strategy or may reflect a complex
psychodynamic or phenomena that untrained persons may not understand fully.
Although physicians and psychotherapists are not infallible when diagnosing abuse,
we believe that their education, training, experience, and expertise make them at
least as well equipped as judges to detect and consider those possibilities.” Id. at
¶42.
{90} Under the principles in Muttart the trial court’s decision to admit Dr.
McPherson’s testimony concerning M.S.’s statements was appropriate. Once
admitted, the weight was a question for the jury. The court’s decision to allow Dr.
McPherson’s relevant and probative testimony was not a violation of the
confrontation clause of the Sixth Amendment or the Ohio Rules of Evidence. As
such, it did not rise to the level of plain error.
(2) Statements Made by Ms. Soles.
{91} Appellant points to a single instance of testimony, on page 40 of the
deposition, where on redirect the prosecutor asks Dr. McPherson to elaborate as to
information he relied on when evaluating M.S. and the section of his report titled
“Review of Symptoms.” Appellant argues the doctor’s response to the question was
hearsay within hearsay. (McPherson Depo., p. 40). During the deposition, defense
counsel objected that the statement was hearsay within hearsay but the objection
was overruled. What Appellant’s argument does not discuss are the various points in
the prior seventeen pages of the deposition where defense counsel cross-examined
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Dr. McPherson on his training, his methodology, and the information he relied on in
evaluating M.S.’s condition. Defense counsel specifically elicited both M.S.’s
statements and her mother’s statements, resulting in the following testimony: “when I
spoke with - - during our initial eval - - initial talking with mom, I was informed that the
patient told mom, ‘Earl, you licked my butt,’ while Earl was present. And then Earl
responded by saying, “I wiped your butt.’” (McPherson Depo., p. 22.)
{92} With regard to the confrontation clause and the admissibility of
otherwise inadmissible hearsay the threshold question is whether the hearsay at
issue testimonial or non-testimonial hearsay. “Where nontestimonial hearsay is at
issue, it is wholly consistent with the Framers’ design to afford the States flexibility in
their development of hearsay law * * * [w]here testimonial evidence is at issue,
however, the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Crawford v. Washington
(2004), 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 203. “While the Court
declined to settle on a single formulation, it noted that, ‘[w]hatever else the term
[testimonial] covers, it applies [ ] to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial, and to police interrogations. These are the modern
abuses at which the Confrontation Clause was directed.’” Horton v. Allen (C.A.1,
2004), 370 F.3d 75, 84, citing and quoting Crawford, supra. The testimony at issue
here is the statement of a minor made to her mother and reported to a physician for
the purposes of diagnosis. It is nontestimonial in nature and does not raise a Sixth
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Amendment issue. The testimony is instead subject to Ohio common law concerning
hearsay.
{93} Under the common law, where, as here, a party chooses to open the
door to otherwise inadmissible testimony, it is within the court’s discretion to allow the
other party to elicit additional clarifying testimony on the same issue. “‘Under the rule
of curative admissibility, or the “opening the door” doctrine, the introduction of
inadmissible evidence by one party allows an opponent, in the court's discretion, to
introduce evidence on the same issue to rebut any false impression that might have
resulted from the earlier admission.’” State v. Dunivant, 5th Dist. No. 2003CA00175,
2005-Ohio-1497, ¶12 (See, also, United States v. Moody (C.A.6, 1967), 371 F.2d
688, 693, “’With the door opened this widely in favor of [defendant], we cannot say
that the District Judge's rulings in favor of appellee's proffered hearsay on the same
subject was an abuse of judicial discretion or constituted reversible error;’” and State
v. Croom (Jan. 18, 1996), 8th Dist. No. 67135, at *17. “Invited error would preclude a
defense counsel who induces hearsay evidence on cross-examination from
precluding further hearsay testimony on re-direct examination.”)
{94} The doctor’s statement on re-direct, placed in context of defense
counsel’s cross-examination, was within the court’s discretion to allow as invited
error, described above. The fact that the statement was hearsay during redirect
could be cured by defense counsel’s prior decision to address the issue on cross.
The trial court’s decision to allow the testimony was not unreasonable, arbitrary, or
unconscionable and therefore was not an abuse of discretion.
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{95} Appellant’s fourth assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 6
{96} “DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW
SUCH THAT REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT FAILED
TO PROPERLY INSTRUCT THE JURY.”
{97} Appellant’s sixth assignment of error rests on a single abbreviated
quote plucked from sixteen (16) pages of jury instructions. (Tr. Vol. II, pp. 402-418.)
Appellant argues that because the words “beyond a reasonable doubt” do not appear
in Appellant’s carefully selected quote the trial court failed to properly instruct the jury.
On review, “[a] jury instruction must be viewed in the context of the overall charge
rather than in isolation.” State v. Lewis (1993), 67 Ohio St. 3d 200, 203, 616 N.E.2d
921, citing State v. Price (1979), 60 Ohio St. 2d 136, 14 O.O.3d 379, 398 N.E.2d 772.
Appellant’s argument fails, as within these sixteen pages of jury instructions,
recorded by the court and provided to the jury during deliberations, there appears a
full page of instruction as to the meaning of reasonable doubt and the role of
reasonable doubt in the state’s burden of proof. (Tr. Vol. II, pp. 403-404.) The court
explained the elements of the crime charged. The court then instructed the jury as to
the treatment of evidence and testimony before re-stating the state’s burden:
“[b]efore you can find the Defendant guilty, you must find beyond a reasonable doubt
that [continued to re-list the elements and define terms].” (Tr. Vol. II, pp.409-410.)
The trial court concluded with the quote selected by Appellant “[i]f you find that the
State has proven all the elements of the charge of rape, including that the victim was
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less than thirteen years of age* * *.” (Tr. Vol. II, p. 410.) Appellant’s argument is
wholly without merit. The jury was properly instructed as to the state’s burden and
the requirement of proof beyond a reasonable doubt. Appellant’s sixth assignment of
error is overruled.
ASSIGNMENT OF ERROR NO. 7
{98} “DEFENDANT/APPELLANT’S CONVICTION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR NO. 8
{99} “THE STATE OF OHIO FAILED TO PRODUCE SUFFICIENT
EVIDENCE AS TO THE COMMISSION OF THE SEX ACT OF CUNNILINGUS.”
{100} Appellant herein challenges both the sufficiency and the manifest
weight of the evidence. To determine whether sufficient evidence exists to support a
conviction, the reviewing court must determine “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.
Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus. In
determining whether a criminal judgment is against the manifest weight of the
evidence, this Court acts as a “thirteenth juror” to determine whether, “the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Thompkins (1997), 78 Ohio St. 3d
380, 387, 678 N.E.2d 541, citing State v. Martin (1983), 20 Ohio App. 3d 172, 175,
485 N.E.2d 717. The verdict is not against the weight of the evidence when there is
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evidence which, if believed, will convince the average person of the accused’s guilt
beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, 172, 383
N.E.2d 132.
{101} “A verdict that is supported by sufficient evidence may still be against
the manifest weight of the evidence. ‘Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other. It indicates clearly to the jury that the
party having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is not a question
of mathematics, but depends on its effect in inducing belief.”’ (Emphasis sic.)”
(Internal citations omitted.) State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-
3282, ¶24, quoting Thompkins, supra, at 387. The weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of fact to determine.
State v. DeHass (1967), 10 Ohio St. 2d 230, 227 N.E.2d 212, paragraph one of the
syllabus.
{102} The state’s case is supported by the testimony of thirteen witnesses;
the defense called a single witness. Among the state’s thirteen witnesses were both
of Appellant’s employers, who had no relationship with the victim or the victim’s
mother and no incentive to harm Appellant, whom they both describe as a good
worker. The state’s most damning piece of evidence is readily identifiable:
Appellant’s admission via telephone to his friend and sometimes-employer Bob Lalley
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that he “did something [he] could go to prison for,” he “touched a little girl
inappropriately.” (Tr. Vol. II, p. 292.) Appellant’s admission is compounded by his
own behavior: applying for a transfer, accepting the check for expenses, then
quitting his regular job without returning the check and leaving the state. None of the
errors alleged by Appellant concerning the videotaped deposition, statements made
by the prosecutor, or by other witnesses has the same effect.
{103} With regard to the sex act, it is the responsibility of the jury to resolve
questions of fact and to determine the credibility and weight of the testimony of the
young witness. DeHass, supra; State v. McConnell, 2nd Dist. No. 19993, 2004-Ohio-
4263. M.S.’s statements to Appellant, overheard by her mother, statements made
directly to her mother, and statements to Dr. McPherson were admissible as excited
utterances and statements made for medical diagnosis. M.S.’s reported statements
and her testimony in the deposition are consistent. When asked by the doctor where
Appellant licked her, the child placed her hand in her underwear to show him. M.S.
was equally able to show where, on anatomically correct drawings, contact occurred.
Courts readily accept the fact that young children use a variety of words to describe
their genitals. See, e.g. McConnell, supra; In re D.M., 158 Ohio App. 3d 780, 2004-
Ohio-585; Dever, supra. The jury was instructed as to the elements of the offense
and the findings necessary to a verdict, and the jury was polled at the request of
defense counsel. The jury had before it evidence sufficient to support its conclusion
that prohibited contact had occurred. The evidence in the record does not support a
conclusion that the jury lost its way in believing the state’s version of the events at
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issue in this case. Accordingly, Appellant’s seventh and eighth assignments of error
are overruled.
ASSIGNMENT OF ERROR NO. 9
{104} “DEFENDANT/APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO A FAIR TRIAL DUE TO THE CUMULATIVE ERRORS IN THESE
PROCEEDINGS.”
{105} Appellant contends that each of the errors identified in his preceding
assignments are reversible, but that even if they were individually found harmless
their cumulative effect deprived him of a fair trial. However, errors do not become
prejudicial “by sheer weight of numbers.” State v. Frazier, 115 Ohio St. 3d 139, 2007-
Ohio-5048, 873 N.E.2d 1263, ¶241. Although cumulative error may “be found when
the effect of multiple errors * * * acts to deprive the defendant of his constitutional
right to a fair trial * * * an assignment of error that simply intones the phrase
‘cumulative error’ but offers no analysis or argument constitutes an assignment of
error without substance.” State v. Scott, 7th Dist. No. 07 MA 152, 2009-Ohio-4961,
¶92–93 (citing State v. Garner (1995), 74 Ohio St. 3d 49, 656 N.E.2d 150 and State v.
Bethel, 110 Ohio St. 3d 416, 2006-Ohio-4853, 854 N.E.2d 150). Appellant offers no
argument or analysis in his brief.
{106} Although some statements made in closing argument concerning
Appellant’s pre-arrest silence were error, Appellant has failed to show prejudice
resulting from the error. Appellant’s six other assignments, which frequently
misrepresent the record, fail to show error and are equally without merit. Even if
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errors could become prejudicial by sheer weight of numbers, such numbers do not
exist here. There is nothing in the record to suggest that, but for the fact that the jury
was told Appellant failed, pre-arrest, to assert his innocence to the police, the jury
would have acquitted him. Absent other error there is no cumulative effect that
worked to deprive Appellant of his right to a fair trial.
{107} Appellant’s ninth assignment of error is without merit and is overruled.
CONCLUSION
{108} Appellant’s arguments that his Fifth Amendment, Sixth Amendment,
and due process rights were violated are without merit. Similarly, his allegations of
prejudicial misconduct, abuse of discretion, evidentiary violations, failure to properly
instruct the jury, and cumulative error are equally without merit. Appellant’s
conviction was based upon sufficient evidence and not against the manifest weight of
the evidence. Appellant’s nine assignments of error are without merit and overruled.
The judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.