State v. Palmer

[Cite as State v. Palmer, 2022-Ohio-2643.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JEFFREY PALMER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 108
Motion to Reopen
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Denied
Atty. Paul J. Gains, Mahoning Prosecutor, Atty. Ralph M. Rivera, Assistant Chief,
Criminal Division, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503 for
Plaintiff-Appellee and
Jeffrey Palmer, N.C.C.C. Cr-A-30, P.O. Box 1812, Marion, Ohio 43301, Pro Se,
Defendant-Appellant.
Dated: July 18, 2022
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PER CURIAM.
{¶1} Defendant-Appellant, Jeffrey Palmer, has filed an application to reopen his
direct appeal from his conviction on 12 counts of rape and one count of gross sexual
imposition (GSI) of a minor under the age of 13. Appellant was sentenced to a total of 40
years to life in prison. State v. Palmer, 7th Dist. Mahoning No. 19 MA 0108, 2021-Ohio-
81. We denied appellant’s assignments of error on direct appeal and affirmed his
conviction and sentence on September 29, 2021. On December 28, 2021, the Ohio
Supreme Court declined to accept appellant’s appeal for review. State v. Palmer, 165
Ohio St.3d 1495, 178 N.E.3d 534 2021-Ohio-4515. Appellant filed the instant App.R.
26(B) application to reopen on December 28, 2021. For the following reasons, the
application is denied.
{¶2} An application to reopen an appeal must be filed “within ninety days from
journalization of the appellate judgment unless the applicant shows good cause for filing
at a later time.” App.R. 26(B). Our judgment in this case was filed on September 29, 2021.
Appellant filed this application on December 28, 2021. Thus, it was timely filed.
{¶3} When considering an application for reopening pursuant to App.R. 26(B),
we must first determine, based upon appellant’s application, affidavits, and portions of the
record before us, whether appellant has set forth a colorable claim of ineffective
assistance of appellate counsel. See e.g. State v. Milburn, 10th Dist. No. 89AP-655, 1993
WL 339900 (Aug. 24, 1993); State v. Burge, 88 Ohio App.3d 91, 623 N.E.2d 146 (10th
Dist.1993). The appropriate standard to assess whether Appellant has raised a “genuine
issue” as to the ineffectiveness of appellate counsel in his request to reopen under App.R.
26(B)(5) was set forth by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Spivey, 84 Ohio St.3d 24,
25, 701 N.E.2d 696 (1998). In order to show the ineffective assistance of appellate
counsel, appellant must prove that his appellate counsel deficiently performed by failing
to raise the issues he now presents and that he was prejudiced because there was a
reasonable probability of success had he presented those claims on appeal. State v. Goff,
98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d 700.
Case No. 19 MA 108
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{¶4} On direct appeal, appellant, through counsel, raised nine assignments of
error. Those assignments of error concerned violation of his constitutional rights due to:
identical counts charged in the same indictment; failing to instruct the jury on the lesser
offense of GSI; insufficient evidence of oral rape; allowing the introduction of
impermissible “other act” evidence; ineffectiveness of trial counsel for failing to be
prepared for trial, not filing a motion to suppress, not withdrawing from the case, and not
objecting to references to the minor (AB) in this case as “victim;” allowing the State to
impermissibly bolster AB’s testimony by using “expert” medical testimony; failing to record
sidebars; and cumulative errors.
{¶5} In the instant Rule 26(B) application, appellant asserts that his appellate
counsel was ineffective by failing to raise a number of additional issues. He asserts ten
arguments that he refers to as assignments of error. Appellant first argues:
APPELLATE COUNSEL WAS INEFFECTIVE WHEN HE FAILED
TO ARGUE THAT TRIAL COUNSEL FAILED TO OBJECT TO THE
ADMISSION AND ELICITING OF HEARSAY, AND TESTIMONIAL
STATEMENTS, IN VIOLATION OF PALMER’S 5TH, 6TH, AND 14TH
AMENDMENTS TO THE U.S. CONSTITUTION AND ART. 1,
SECTION 10 OF THE OHIO CONSTITUTION.
{¶6} Appellant claims that appellate counsel should have raised his trial
counsel’s failure to object to a number of statements made by AB, her mother TB (TB),
Detective Sweeney, and Officer Hillman. He contends that these statements violated his
Confrontation Clause rights and constituted inadmissible hearsay.
{¶7} We start by evaluating whether the statements violated appellant’s
Confrontation Clause rights. The Sixth Amendment's Confrontation Clause provides that,
‘[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with
the witnesses against him.” The Confrontation Clause prohibits the introduction of
testimonial statements by a non-testifying witness, unless that witness is unavailable to
testify and the defendant had a prior opportunity for cross-examination. State v. Grabe,
7th Dist. Mahoning No. 16 MA 0061, 2017-Ohio-1017, ¶ 20, citing Crawford v.
Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
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{¶8} Here, AB testified at trial and was subject to complete cross-examination.
(Tr. at 171-209). “The Confrontation Clause is not violated by admitting a declarant's out-
of-court statements, as long as the declarant is testifying as a witness and subject to full
and effective cross-examination.” State v. Culler, 7th Dist. Columbiana No. 20 CO 0030,
2021-Ohio-4642, ¶ 37, citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930 (1970).
{¶9} Since there is no Confrontation Clause violation, trial counsel did not
deficiently perform by failing to object to or otherwise raise this issue, and appellate
counsel was therefore not ineffective for failing to raise trial counsel’s ineffectiveness on
this issue.
{¶10} Appellant also contends that AB’s statements to TB, Detective Sweeney
and Officer Hillman constituted inadmissible hearsay, trial counsel was ineffective for
failing to raise this issue, and the trial court abused its discretion by admitting these
statements. He first asserts that AB’s statements were not excited utterances under Evid.
R. 803 because the statements were made in 2018 about conduct that allegedly occurred
in 2015 and 2016. He quotes State v. Taylor, 66 Ohio St.3d 295, 300-301, 612 N.E.2d
316 (1993) (quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955)) concerning
a four-part test to determine that an out-of-court statement is an excited utterance under
the hearsay exception.
{¶11} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by
the declarant while testifying at trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Evid.R. 802 provides that “[h]earsay 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 of
the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme
Court of Ohio.”
{¶12} Evid.R. 803 identifies exceptions to the hearsay rule where the declarant’s
availability is immaterial. One such exception includes Evid. R. 803(2): “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.” Statements made under this
exception are considered more truthful because the “declarant is under such state of
emotional shock that his reflective processes have been stilled. Therefore, statements
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made under these circumstances are not likely to be fabricated. McCormick § 297 (2d ed.
1972).” 1980 Staff Notes to Evid. R. 803(2).
{¶13} In order for an excited utterance to be admissible, four factors must be
satisfied: (1) the event must be startling enough to produce a nervous excitement in the
declarant, (2) the statement must have been made while the declarant was still under the
stress of excitement caused by the event, (3) the statement must relate to the startling
event, and (4) the declarant must have personally observed the startling event. State v.
Taylor, 66 Ohio St.3d 295, 300–301, 612 N.E.2d 316 (1993). In determining if a statement
is an excited utterance, “[t]he controlling factor is whether the declaration was made under
such circumstances as would reasonably show that it resulted from impulse rather than
reason and reflection.” State v. Humphries, 79 Ohio App.3d 589, 598, 607 N.E.2d 921(1992).
{¶14} Appellant correctly points out that AB did not disclose sexual abuse until
nearly two years after it occurred and appellant had left the home. (Tr. at 146-147). When
asked at trial why she waited to disclose the abuse, AB testified that appellant threatened
that he would hurt her mother if she told. (Tr. at 188). She stated that she was afraid of
appellant and he was serious when he told her she would not see her mother. (Tr. at 188).
She stated that appellant was older and bigger than her, and she knew that appellant kept
a BB gun in his car. (Tr. at 188-189). She stated that she was afraid that appellant would
come back when he left. (Tr. at 196).
{¶15} TB testified as to the circumstances surrounding AB’s disclosure of the
sexual abuse to her and AB’s demeanor at that time. (Tr. at 146-147). She testified that
AB came into the room while TB was talking to family and AB told TB that she had
something to tell her about appellant and TB took AB into another room:
A [TB]: and told me - - she was on the brink of crying, and she came and
told me she wanted to tell me something. So I asked her what it was.
And she told me that it was about Israel. So I said, well what is it?
We had company around at the time, so I pulled her upstairs and
asked her. And she told me - - she told me that’s when he touched
her. And I asked her how long was he doing it for? She told me the
whole time he was in our apartment when we stayed in Boardman.
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Q [prosecution]: What was [AB] like when she’s telling you these things?
A: She was crying. She was looking like she was scared, like her whole
- - she had an expression on her face like she was just like - - it was
like she didn’t want to tell me, but it’s like she told me because she
said she got tired of having nightmares of waking up and I wasn’t
there.
Q: [TB], what do you do as soon as [minor] tells you this?
A: I tell her get dressed and I’ll take her to the emergency room.
(Tr. at 147-148).
{¶16} The period of time that AB waited to disclose is concerning. However,
“[t]here is no per se amount of time after which a statement can no longer be considered
to be an excited utterance.” Taylor, 66 Ohio St.3d at 303. Further, the courts have liberally
applied the excited utterance rule to statements by children concerning sexual abuse
because “‘children are likely to remain in a state of nervous excitement longer than would
an adult’ ” and young children possess “‘limited reflective powers.’ ” Id., quoting Taylor at
304, 612 N.E.2d 316. This liberality is necessary due to “the age of the child, the shocking
nature of the act, and the surprising nature of the assault.” In re S.W.H., 2d Dist. Greene
No. 44918, 2016-Ohio-841, ¶ 22, quoting State v. Boston, 46 Ohio St.3d 108, 118, 545
N.E.2d 1220 (1989). The Ohio Supreme Court has held that in order for a statement to
qualify as an excited utterance, “[t]he central requirements are that the statement must
be made while the declarant is still under the stress of the event and the statement may
not be a result of reflective thought.” Id.{¶17} “‘A reviewing court should give the trial court wide discretion when the trial
court decides that statements made by a child-victim about sexually abusive acts qualify
as excited utterances.’ ” State v. Robinson, 12th Dist. No. CA2015-01-013, 48 N.E.3d
109, 2015-Ohio-4533, ¶ 29, quoting State v. Ashcraft, 12th Dist. No. CA97-11-217 (Sept.
28, 1998), citing State v. Wagner, 30 Ohio App.3d 261, 263, 508 N.E.2d 164 (8th
Dist.1986). “[W]hen the crime is rape, determining whether the victim is in an excited state
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is a factual question that is left to the trial court's discretion.” Ashcraft, citing State v. Smith,
34 Ohio App.3d 180, 190, 517 N.E.2d 933 (5th Dist.1986).
{¶18} Here, AB was ten years old when the sexual abuse began and she was
twelve years old when she disclosed the abuse to TB. (Tr. at 172,175). TB testified that
AB approached her and was “on the brink of crying,” “crying,” and “scared,” immediately
before she disclosed the abuse to TB. (Tr. at 147). AB testified that she waited to disclose
because appellant had threatened her about her mom, she was afraid of him, and she
was afraid that he would return. She also testified that she had a nightmare the night
before about TB not “coming back” and she disclosed the abuse to TB when she heard
her mother talking about appellant. (Tr. at 188, 197). Based upon AB’s young age, her
reason for not disclosing earlier and the circumstances surrounding the time of disclosure,
we find that AB’s statements to TB were excited utterances. Accordingly, appellant’s
assertion of ineffective appellate counsel is without merit because trial counsel was not
ineffective for failing to raise this as an issue at trial.
{¶19} Since AB’s disclosure was an excited utterance, appellant’s assertion that
TB’s testimony contained repeated hearsay from AB also fails. Consequently, trial
counsel was not ineffective for failing to raise this issue and appellate counsel was
therefore not ineffective for failing to raise trial counsel’s ineffectiveness as to this issue.
{¶20} Even if TB’s testimony contained inadmissible hearsay, its admission was
harmless error. TB’s testimony was part of the timeline of the events concerning the
sexual abuse, as she was the first to testify, and she explained when appellant moved in,
when she discovered the abuse, and how AB’s behavior had changed after appellant
moved in with them. See State v. Gutierrez, 3rd Dist. Hancock No. 5-10-14, 2011-Ohio-
3126, §49 (admission of mother’s testimony concerning her child’s disclosure of sexual
abuse not error as purpose was to explain timeline and child’s behavior before and after
abuse; even if error, harmless error because child testified as to abuse). Thus, TB’s
testimony was presented more for background or a timeline as opposed to the “truth of
the matter” because AB testified right after TB and she related firsthand the sexual abuse
that she suffered.
{¶21} Moreover, AB’s testimony as to the sexual abuse rendered any admission
of TB’s testimony harmless because it was essentially cumulative. Id. at §50 (“[w]here a
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declarant is examined on the same matters as contained in an impermissible hearsay
statement and where the testimony is essentially cumulative, the admission of any such
hearsay statement is harmless”) (citing State v. Tomlinson, 33 Ohio App.3d 278, 281, 515
N.E.2d 963 12th Dist. Warren 1986); see also State v. Noles, 6th Dist. Lucas No. 2013-
Ohio-4088(relying on Gutierrez to find the same concerning nine-year-old victim’s
disclosure to grandmother of sexual abuse that occurred when she was five years old).
As in Gutierrez, this Court does not find that in the present case that, but for the admission
of TB’s testimony regarding AB’s disclosure, there was a reasonable probability that the
outcome of trial would have been different. AB testified herself and was subject to cross-
examination. Consequently, even if trial counsel deficiently performed by not raising this
issue, no prejudice resulted. Accordingly, appellate counsel was not ineffective by failing
to raise on appeal the ineffectiveness of trial counsel as to this issue.
{¶22} Appellant also challenges the admission of the testimony of Detective
Sweeney and Officer Hillman. Detective Sweeney testified that he spoke to TB after a
social worker from Akron Children’s Hospital called to report that AB and TB were there
and had reported that AB had been raped. (Tr. at 215). He stated that TB was “emotional”
and “upset,” as she had just learned that about the rape prior to coming to the emergency
room. (Tr. at 215). Sweeney was asked about a statement that TB made to him
concerning a disclosure by AB. (Tr. at 215). He responded that TB had “advised that her
daughter had been raped by her former live-in boyfriend.” (Tr. at 215). Detective Sweeney
continued testifying that he also spoke to AB, who was very emotional, and “she disclosed
that she had been raped.” (Tr. at 215). He thereafter was asked if he had a suspect in
mind after speaking to TB and AB and he said he did and it was “Mr. Palmer,” based upon
the information provided to him by AB and TB. (Tr. at 215).
{¶23} We find that TB’s statements to Detective Sweeney were excited
utterances and therefore exceptions to the hearsay rule. She made those statements at
the emergency room immediately after she had just learned that AB had been sexually
abused. Sweeney described TB as visibly upset and “emotional.” (Tr. at 215).
{¶24} Appellant also asserts trial counsel ineffectiveness for failing to object
when Detective Sweeney was asked if he had a suspect in mind and he answered that it
was appellant. (Tr. at 216). Appellant further alleges error in failing to object to Officer
Case No. 19 MA 108
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Hillman’s testimony as to his initial investigation, his testimony that the nature of the
allegations were that TB’s former boyfriend raped AB, and the only suspect was appellant.
(Tr. at 314-316).
{¶25} The testimony of both Detective Sweeney and Officer Hillman was offered
to show the beginning and chronology of the police investigation. “Where out-of-court
statements were offered to explain a police officer's conduct while investigating a crime,
rather than to prove the truth of the matter asserted therein, such statements were not
hearsay.” State v. Fowler, 10th Dist. Franklin No. 15AP-1111, 2017-Ohio-438, ¶ 30, citing
State v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d 1105 (10th Dist.1987), citing State
v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980).
{¶26} Further, even if any of this testimony was hearsay, appellant’s assertion
nevertheless fails because AB and TB were the sources of Sweeney and Hillman’s
testimony that appellant was a suspect and AB and TB both testified and were subjected
to cross-examination. Officer Hillman also testified that he interviewed a neighbor living
next to the family when appellant lived with them and she testified at trial as well.
Moreover, Officer Hillman had interviewed appellant and testified about that interview as
well. Thus, appellant’s trial counsel had the opportunity to cross-examine and did cross-
examine AB, TB, and the neighbor at trial. “Where a declarant is examined on the same
matters as contained in impermissible hearsay statements and where admission is
essentially cumulative, such admission is harmless.” Fowler at ¶ 30, quoting State v.
Tomlinson, 33 Ohio App.3d 278, 281, 515 N.E.2d 963 (1986).
{¶27} Accordingly, appellant’s first argument lacks merit.
{¶28} In the second argument of his Rule 26(B) application, appellant asserts:
Petitioner was denied the effective assistance of appellate
counsel, a violation of due process of the 6th and 14 th
Amendments to the U.S. Constitution and section 16 Art. 1
of the Ohio Constitution, when counsel failed to raise on
appeal trial counsels[sic] failures to object to prosecutorial
misconduct and trial courts[sic] abuse of discretion in
admitting inadmissible testimony.
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{¶29} Appellant contends that the prosecution committed misconduct and his
counsel failed to raise this misconduct when the prosecution used Janet Gorsuch, Nurse
Practitioner (NP) at ACH in the Child Advocacy Center (CAC), to give an opinion on
whether AB was sexually abused and whether AB was believable. However, appellant
makes no further mention of prosecutorial misconduct in this assignment of error and
makes essentially the same arguments that he presented on direct appeal.
{¶30} We addressed the issue of NP Gorsuch’s testimony in our Opinion on
appellant’s direct appeal and we overruled his sixth assignment of error alleging that the
State improperly used NP Gorsuch’s “diagnosis” of “concerning for sexual abuse” to
bolster AB’s allegations. Consequently, appellant’s trial counsel was not ineffective in
failing to raise this issue and appellate counsel was not ineffective for failing to raise trial
counsel’s failure to raise this issue.
{¶31} Accordingly, appellant’s second argument lacks merit.
{¶32} In the third argument of his Rule 26(B) application, appellant asserts:
Palmer argues that it was also ineffective assistance of
appellate counsel not to argue on appeal that trial counsel
failed to object to the state’s misconduct in closing
argument when she stated “And everybody is in some big
conspiracy to, again, as he put it, railroad him, just like
Gorsuch lied. The police lied. The prosecutor’s office
obviously bought it because we’re here prosecuting him.”
(Trial Tr. 450).
{¶33} In support of this assertion, appellant quotes Washington v. Hofbauer, 228
F.3d 689 (2000), as stating that “It is always improper for a prosecutor to suggest that a
defendant is guilty merely because he is being prosecuted or has been indicted. It is
equally improper to imply to a jury that an underlying factual predicate of a crime must be
true due to the fact of indictment or prosecution.”
{¶34} The part of the prosecution’s closing that appellant refers to stated
completely that:
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And everybody is in some big conspiracy to, again, as he put it,
railroad him, just like what happened to him on his prior
convictions. [TB] lied. Monissa lied. Jan Gorsuch lied. The police
lied. The prosecutor’s office obviously bought it because we’re
here prosecuting him.
Tr. at 450.
{¶35} When reviewing a claim that the prosecution committed misconduct in
closing argument, this Court evaluates whether the remarks were improper and, if so,
whether they prejudicially affected the defendant's substantial rights. State v. Lott, 51
Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). The prosecution is afforded wide latitude in
summation. Id. The challenged statements are not viewed in isolation but are read in
context of the entire closing argument and the entire case. State v. Treesh, 90 Ohio St.3d
460, 466, 739 N.E.2d 749 (2001); State v. Rahman, 23 Ohio St.3d 146, 154, 492 N.E.2d
401 (1986) (also noting if the Court were to find “every remark made by counsel outside
of the testimony were grounds for a reversal, comparatively few verdicts would stand,
since in the ardor of advocacy, and in the excitement of trial, even the most experienced
of counsel are occasionally carried away by this temptation”).
{¶36} “[T]he touchstone of due process analysis in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the culpability of the prosecutor.” Lott, 51 Ohio
St.3d at 166, 555 N.E.2d 293, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940,
71 L.Ed.2d 78 (1982). Where there are improper remarks, “it must be clear beyond a
reasonable doubt that, absent the prosecutor's comments, the jury would have found
defendant guilty.” State v. Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984).
{¶37} The comments by the prosecution in the federal case cited by appellant
are not similar to those made by the prosecution at closing in the instant case. The Sixth
Circuit in Hofbauer held that the prosecution’s pervasive character attack on the
defendant at closing was “plainly improper”. In his initial summation, the prosecutor
improperly implied that the jurors should consider Washington's unseemly character
when rendering their verdict; in his rebuttal, he explicitly urged them to do so. Meanwhile,
he attacked Washington as a “‘self-serving, illogical selfish non-compassionate, no
emotional interest in a family type of person,’ ” who acted irrational due to “drugs and
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alcoholism and a general not caring about other people.” Id. at 699-700. The Sixth Circuit
found additional prosecutorial misconduct when the prosecution told the jury during
closing that the victim must have presented her story regarding penetration to someone
since the appellant was indicted and the victim’s story to every witness never changed,
where there was no evidence of this presented at trial. Id. The Court found that these
statements were also improper because a prosecutor cannot suggest that a defendant is
guilty just because he was indicted and the prosecution cannot bolster the victim’s
testimony based on facts not presented in evidence. Id. at 701-702.
{¶38} Contrarily in the instant case, the prosecution basically used the
statements made by appellant, who testified on direct examination that the police
questioned him about AB and he absolutely denied the allegations. (Tr. at 371). On cross-
examination, appellant also stated that TB, AB, and the neighbor Monissa Redmond,
were “definitely” lying when they said that he moved in with TB in 2015. (Tr. at 380). He
further testified that he was never left alone with any of the children and TB told a “bold-
faced lie” when she testified that he watched the children while she worked. (Tr. at 384-
386). He testified that “pretty much” everything that TB and Monissa testified to were lies
and AB was lying as well. (Tr. at 391-396). He testified that he was the only one telling
the truth at trial. (Tr. at 400). In fact, the prosecution asked appellant on cross-
examination:
Just so I’m clear, this is a big conspiracy, the mom, [TB],
Monissa, [AB], even the boyfriend, they’re all working to conspire
to get you, Jeffrey Palmer, get you in trouble? Just yes or no.
(Tr. at 404). Appellant replied, “It’s definitely happening.” (Tr. at 404). He also stated that
“I’m clearly being lied on. And if you read all the statements, it speaks volumes.” (Tr. at
407). Appellant stated that NP Gorsuch was “very biased” about whether AB was sexually
abused because she was an advocate. (Tr. at 397). He further testified that he was not
sure whether AB had fooled the police, social workers, and NP Gorsuch, but “I know she
gave a story that I strong - - I have to strongly suggest, believe, that she didn’t come up
with herself.” (Tr. at 399). Since the prosecution merely restated that which appellant
stated at trial, there is no prosecutorial misconduct in these closing comments.
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{¶39} Further, these comments were only a small part of the prosecution’s
closing statement and the entire case. The prosecution reviewed all of the testimony at
closing, including that of AB, and referred to appellant’s testimony as part of the overall
summation. The trial court also informed the jury that the opening and closing statements
and arguments are not evidence. (Tr. at 454).
{¶40} And finally, even if the few closing comments were improper, it is clear
beyond a reasonable doubt that the jury would have found appellant guilty without them.
{¶41} Accordingly, appellant’s third argument lacks merit.
{¶42} In the fourth argument of his Rule 26(B) application, appellant asserts:
Appellate counsel should have raised on appeal that [h]is
Constitutional 6th and 14th Amendments to due process
and effective counsel were violated when trial counsel failed
to request a mistrial after the [sic] judge at trial violated his
right to the presumption o[sic] innocents[sic] by asking the
jury the prejudicial question “were any of you formerly a
juror in the same case or in a civil case brought against the
defendant for the same act?” (Trial Tr., 22).
{¶43} The trial court is granted wide discretion in conducting voir dire and
determining the questions to be asked. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,
880 N.E.2d 31, ¶ 44, quoting State v. Lorraine, 66 Ohio St.3d 414, 418, 613 N.E.2d 212(1993), and State v. Wilson, 74 Ohio St.3d 381, 386, 659 N.E.2d 292 (1996)(quoting
Mu'Min v. Virginia), 500 U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). “‘[A]buse
of discretion’ connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980).
{¶44} Part of the guarantee of a defendant's right to an impartial jury under the
Sixth Amendment is “an adequate voir dire to identify unqualified jurors.” State v.
Jackson, 107 Ohio St.3d 53, 2005-Ohio- 598, 1836 N.E.2d 1173, ¶ 56, quoting Morgan
v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); State v. Wilson,
74 Ohio St.3d at 386, 659 N.E.2d 292. “Without an adequate voir dire the trial judge's
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responsibility to remove prospective jurors who will not be able impartially to follow the
court's instructions and evaluate the evidence cannot be fulfilled.” Jackson at ¶ 56,
quoting Rosales–Lopez v. United States (1981), 451 U.S. 182, 188, 101 S.Ct. 1629, 68
L.Ed.2d 22. Thus, voir dire questions “must be sufficient to identify prospective jurors who
hold views that would prevent or substantially impair them from performing the duties
required of jurors.” Jackson at ¶ 57, citing Morgan at 734–735.
{¶45} Appellant is correct that the trial court asked the prospective jurors in voir
dire: “Were any of you formerly a juror in the same case or in a civil case brought against
this defendant for the same act?” (Tr. at 22). They collectively responded, “No.” (Tr. at
22). Appellant contends that the court’s question implied to the jurors that he had
committed the same crime against someone else and he had been civilly sued as well.
{¶46} A mistrial should be declared only “when the ends of justice so require and
a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1(1991)(citations omitted). A party challenging a jury panel “has the burden of showing that
the jurors were either unlawfully empaneled or that the jurors cannot be fair and impartial.”
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 150.
{¶47} The trial court’s voir dire question in the instant case was somewhat
inartful. However, Crim. R. 24(C) identifies challenges for cause that may be made to
potential juror qualifications. The challenges include that a potential juror: “was a member
of the grand jury that found the indictment in the case” Crim. R. 24(C)(4); “served on a
petit jury drawn in the same case against the same defendant” (Crim. R. 24(C)(4); “served
as a juror in a civil case brought against the defendant for the same act” (Crim. R.
24(C)(5); or that the juror “has an action pending between him or her and the State of
Ohio or the defendant.” (Crim. R. 24(C)(6)). Further, R.C. 2313.17(B) sets forth
challenges for cause to excuse a potential juror, and it identifies the following as
challenges: “that the person has an interest in the cause;” (R.C. 2313.17(B)2)); “that the
person has an action pending between the person and either party;” (R.C. 2313.17(B)(3));
or “that the person formerly was a juror in the same cause;” (R.C. 2313.17(B)(4)). Since
Crim. R. 24 and R.C. 2313.17(B) identify the questions that the trial court asked of the
jurors, the court did not err in asking them about whether they had been jurors in the same
case or whether they had participated in a civil case with appellant.
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{¶48} Moreover, there is no indication of prejudice resulting from this
questioning. The court informed the jury that they would be instructed on the law in this
case by the court. (Tr. at 24). The court asked if any of them would be unable to accept
the law as the court would be instructing and apply it to the facts of the case. (Tr. at 24).
The prospective jurors collectively responded, “No.” (Tr. at 24). The court also informed
them before opening statements that it was their duty “to decide the case solely on the
evidence which you see or hear in the case.” (Tr. at 118). After closing arguments, the
court presented the jury instructions, and informed the jury that appellant was presumed
innocent unless guilt was established beyond a reasonable doubt by the prosecution as
to each essential element of the offenses for which he was charged. (Tr. at 452-453). The
court also defined the meaning of the evidence upon which the jury was to rely to
determine appellant’s guilt and informed them that the prosecution needed to prove each
essential element of the crimes beyond a reasonable doubt in order to find appellant
guilty. (Tr. at 457-458). The court then reviewed each essential element of the crimes
brought against appellant. (Tr. at 458-467). The court informed the jurors that they were
to “carefully weigh the evidence,” “consider all the evidence, and make your findings with
intelligence and impartiality, and without bias, sympathy, or prejudice, so that the state of
Ohio and the defendant will feel that their case was fairly and impartially tried.” (Tr. at
471).
{¶49} Since the trial court did not err in its question to the jurors concerning their
prior service on a jury, trial counsel was not ineffective for failing to object to this
questioning, and appellate counsel was therefore not ineffective in failing to raise trial
counsel’s lack of objection or failure to move for a mistrial as to this issue.
{¶50} Accordingly, appellant’s fourth argument lacks merit.
{¶51} In the fifth argument of his Rule 26(B) application, appellant asserts:
Palmer was also denied effective counsel, a violation of the
6th and 14th Amendments, when trial counsel failed to
object to the states[sic] cross examination which compelled
Palmer to testify to the veracity and credibility of the
multiple witnesses against him.
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{¶52} Appellant contends that trial counsel also rendered ineffective assistance
when he failed to object when the prosecution repeatedly asked him on cross-
examination if the State’s witnesses were lying. He cites to portions of the trial where the
prosecution asked him if TB, AB, or Monissa were lying when they testified as to when
he moved in with TB, if TB left him alone with the children, and if Monissa testified just to
get appellant in trouble. (Tr. at 379, 380, 388, 389, 392, 394, 399, 400, 403-406, 450).
{¶53} We find no merit to appellant’s assertion. In State v. Romano, 7th Dist.
Mahoning No. 04-MA-148, 2005-Ohio-5480, ¶ 40, we held that “[t]he trial court may permit
the prosecution, on cross-examination, to inquire whether another witness was lying.” The
defendant had asserted on appeal that the prosecution continuously asked him and other
witnesses throughout the trial whether they believed that the State’s witnesses were lying.
Id. at ¶39. The defendant contended that by doing so, the prosecution had “invaded the
province of the jury to determine truthfulness.” Id. Citing cases from the Eleventh District
and the Eighth District, we held that the defendant’s assignment of error was without
merit. Id. at ¶40, citing State v. Garfield, 34 Ohio App.3d 300, 303–304, 518 N.E.2d 568,
(1986); State v. Carter, 8th Dist. Cuyahoga No. 84816, 2005–Ohio–2179, at ¶ 23. Since
the prosecution did not commit error in asking appellant whether its witnesses were lying,
trial counsel was not ineffective in failing to object and appellate counsel was not
ineffective for failing to raise this issue on appeal.
{¶54} Accordingly, appellant’s fifth argument lacks merit.
{¶55} In the sixth argument of his Rule 26(B) application, appellant asserts:
Palmer argues that his counsel intentionally prejudiced him
by informing the jury pool, “Okay, you’ve been a corrections
officer. You know - - I keep nothing back—You’ll wonder
why. He is in jail because this is a serious offense, and the
bonds are high. And he could not make bond. That is the
reason he’s incarcerated. I don’t want you to think any other
reason. So when you see deputies walking with him,
thats[sic] the reason. They have a duty to be with him. They
have to be everywhere with him because technically he’s a
prisoner of the jail.” (Trial Tr, 82-83).”
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{¶56} Appellant contends that his counsel’s statements about him being in jail
violated his right to an impartial jury trial and his presumption of innocence. He refers to
cases holding that a defendant has a right to appear before a jury in civilian clothes and
without restraints.
{¶57} Appellant is correct that the United States Supreme Court has held that a
court should not compel a defendant to appear before a jury in prison clothing or in visible
physical restraints. See Estelle v. Williams, 425 U.S. 501. 504-506, 96 S.Ct. 1691, 48
L.Ed.2d 126 (1976); Deck v. Missouri, 544 U.S. 622, 632, 125 S.Ct. 2007, 161 L.Ed.2d
953 (2005). Relying on these United States Supreme Court’s opinions, the Ohio Eighth
District Court of Appeals, in State v. Collins, 8th Dist. Case No. 89808, 2008-Ohio-3016,
¶ 14-18, held that that comments by a trial court that a defendant was in jail violated the
defendant’s right to a fair and impartial trial. The trial court had informed the jury prior to
voir dire that they would not see the defendant in the cafeteria during their break because
he was incarcerated “for security purposes.” Id. at ¶11. The defense objected to the
comments at sidebar because the defendant was dressed in civilian clothing for trial so
that the jury would not know that he was in jail. Id. The court did not dismiss the jury that
was eventually chosen, but offered to make a curative instruction, but none was given.
Id. at ¶17. The Eighth District held that the trial court abused its discretion by not granting
a mistrial due to its comments, which violated the defendant’s due process rights.
{¶58} In State v. Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, the
Eighth District distinguished its holding in Collins. Robinson argued on appeal that he was
entitled to a mistrial under Collins because a teenage witness mentioned in his testimony
that Robinson was in prison. The Robinson Court acknowledged that the trial court should
have issued a curative instruction, but it found Collins factually distinguishable because it
was a judge who made the comment in Collins, not a teenage witness making a fleeting
non-responsive comment. Id. at ¶ 74. The court emphasized that the judge’s position
carried great weight and credibility in the jury’s eyes. Id. at ¶ 74.
{¶59} In State v. Graffius, 7th Dist. Columbiana No. 18 CO 0008, 2019-Ohio-
2714 ¶34, the State’s witness testified during direct examination that she did not fear the
defendant because she knew he was in jail. The defendant asserted on appeal that his
trial counsel was ineffective for failing to object to the testimony that he was in jail. We
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recognized that Ohio courts have held that verbal references to a defendant being in jail
were improper and potentially prejudicial because they erode the presumption of
innocence, like wearing jail clothing. Id. at ¶ 35, citing State v. Stroermer, 2d Dist. Clark
No. 2017-CA-93, 2018-Ohio-4522, ¶ 35, citing State v. Watters, 8th Dist. Cuyahoga No.
82451, 2004-Ohio-2405, ¶ 15-16. However, we also noted that Ohio courts held that a
single isolated statement that a defendant is in jail was insufficient to demonstrate
prejudice. Graffius at ¶ 36, citing Stroermer at ¶ 35, citing State v. Sharp, 12th Dist. Butler
No. CA2009-09-236, 2010-Ohio-3470 and State v. Gaona, 5th Dist. Licking No. 11 CA
61, 2012-Ohio-3622.
{¶60} We found no merit to the appellant’s argument, holding that the reference
to the defendant’s incarceration was merely a response to the prosecution’s question
asking if the victim was fearful of the defendant and the statement was a single isolated
reference. Graffius at ¶37. We found that when no reasonable possibility exists that
unlawful testimony contributed to a conviction, the error is rendered harmless and will not
be grounds to reverse. Id. at ¶36, citing State v. Howard-Ross, 7th Dist. Mahoning No. 13
MA 168, 2015-Ohio-4810, 44 N.E.3d 304, citing State v. Lytle, 48 Ohio St.2d 391, 358
N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds in Lytle v.
Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978). We explained that counsel’s
failure to object to the statement was trial strategy so that the jury’s attention would not
be drawn to the comment, since the comment was part of a very lengthy answer to the
question. Id. at ¶38.
{¶61} Here, rather than trying to draw attention away from the deputies
accompanying appellant at trial by minimizing the issue, defense counsel’s strategy was
to draw attention to the deputies and explain to the jury pool why they accompanied
appellant. Defense counsel was speaking to a potential juror who indicated that he had
been a corrections officer. (Tr. at 82). Defense counsel took the opportunity to explain at
that time that:
--you’ll see deputies with Mr. Palmer. You’ll wonder why. He is
in jail because this is a serious offense, and the bonds are high.
And he could not make bond. That is the reason he’s
incarcerated. I don’t want you to think any other reason. So when
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you see deputies walking with him, that’s the reason. They have
a duty to be with him. They have to be everywhere with him
because technically he’s a prisoner of the jail.
Tr. at 82-83). Since one of the jurors had been a corrections officer, defense counsel
chose that moment to explain why deputies accompanied appellant in order to dispel any
other reason for their accompaniment. We see no prejudice to doing so and in fact,
defense counsel tried to preemptively dismiss the jury’s thoughts as to why the deputies
were with appellant, as they may have been thinking that he is dangerous or was guilty.
Since defense counsel did not err or prejudice the defense by drawing attention to the
reason why he had deputies with him, appellate counsel was not deficient on appeal for
failing to raise trial counsel’s ineffectiveness in failing to raise this issue.
{¶62} Accordingly, appellant’s sixth argument lacks merit.
{¶63} In the seventh argument of his Rule 26(B) application, appellant asserts:
Palmer also raises the issue that appellate counsel failed to
raise trial counsel’s ineffective representation due to
counsel’s failure to object to prosecutorial misconduct in
closing argument. In this instant the prosecution made the
Golden Rule Argument to the jury which asked them to
place themselves in the shoes of the alleged victim, “And
this is a 13 year old girl in front of strangers, in front of the
defendant, her rapist, talking about some of the most
intimate and personal things that a person could talk about.
Imagine if you were called to the stand to talk about even
your last consensual sexual experience, how embarrassing
that would be for us as adults. Now put it as a 13 year old
girl who’s been raped.” (Trial Tr, 417).
{¶64} Appellant contends that his Sixth Amendment rights were violated when
his counsel failed to object to part of the prosecution’s closing argument which he asserts
used the “golden rule argument” by asking the jury to put themselves in the shoes of the
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victim. He cites to the Sixth Circuit Court of Appeals’ holding in Hodge v. Hurley, 426
F.3d 358 (6th Cir. 2005), finding that trial counsel was ineffective for failing to object to a
number of comments made by the prosecution in closing argument, which included
suggesting “the jury to ‘put [itself] in the place of someone that might run into [Hodge] at
night.’ ” Id. at 384. The Sixth Circuit called this type of argument the “golden rule
argument” and cited cases holding that such arguments are objectionable and
impermissible. Id.
{¶65} The Hodge Court cited the Eighth District Court of Appeals’ holding in City
of Cleveland v. Egeland, 26 Ohio App.3d 83, 497 N.E.2d 1383, 1389 (8th Dist. 1986), that
“the prosecutor cannot properly threaten the jury that an acquittal would jeopardize them
personally. Such arguments ask the jurors to shed their objectivity and to assume the role
of interested parties” (citations omitted); cf. Boop v. Baltimore & Ohio RR. Co., 118 Ohio
App. 171, 193 N.E.2d 714, 716 (3d Dist. 1963)(“This type of argument, where the jurors
are asked to put themselves in the place of plaintiff, is commonly known as the ‘Golden
Rule Argument’ and, upon objection being made, is normally considered objectionable
and incompetent for the reason that it constitutes an appeal to the jury to abandon their
position of impartiality and to exercise their discretion in the guise of an interested party.”).
{¶66} The prosecution’s comment in the instant case does not fall under the
golden rule. The prosecution did make the following statement during closing: “And this
is a 13 year old girl in front of strangers, in front of the defendant, her rapist, talking about
some of the most intimate and personal things that a person could talk about. Imagine if
you were called to the stand to talk about even your last consensual sexual experience,
how embarrassing that would be for us as adults. Now put it as a 13 year old girl who’s
been raped. She was reluctant to talk about some of these things.” (Tr. at 417). The
prosecution went on to remind the jury that AB did in fact tell them, “eventually,” about
what appellant did to her. (Tr. at 417). The prosecution did not use the statement to have
the jury put themselves in AB’s place for them to abandon their impartiality. Rather, the
prosecution was explaining to the jury why AB was hesitant to divulge such private
information.
{¶67} Accordingly, appellant’s seventh argument lacks merit.
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{¶68} In the eighth argument of his Rule 26(B) application, appellant asserts:
Petitioner was denied effective appelate[sic] counsel when
counsel failed to raise the issue that trial counsel was
ineffective for failing to object to prosecutorial misconduct,
a violation of due process of the 6th and 14th Amendments
to the U.S. Constitution and section 16 Art. 1 of the Ohio
Constitution.
{¶69} Appellant quotes State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-
4686, 964 N.E.2d 442 (6th Dist.) to assert that the prosecution’s statements in closing
relied upon inadmissible hearsay from all of its witnesses to corroborate AB’s out-of-court
statements because they were just regurgitating what AB told them. He contends that this
violates his right to counsel because counsel failed to object to this at closing.
{¶70} None of the statements upon which appellant relies for this assignment of
error are hearsay. Appellant cites to the following part of the closing argument where the
prosecution talks about appellant grooming AB. The prosecution states:
Now, [AB] is 13. She doesn’t know enough to say that the
defendant groomed her. She doesn’t know enough to make up
a story where the abuse escalated from touching to penetration
to vaginal sex. She wouldn’t know that that’s the pattern that
many sexual assaults follow. However, we heard from Nurse
Gorsuch exactly that. The testimony showed that the defendant
groomed [AB].
(Tr. at 422).
{¶71} The prosecution merely summarized the testimony that NP Gorsuch gave
on direct examination based upon her experience as a nurse practitioner who had
extensive experience in child sexual abuse cases. (Tr. at 290-291). NP Gorsuch testified
as to what grooming was and how parts of AB’s disclosure to her fit into that category.
(Tr. at 291). Further, AB testified to this same disclosure. (Tr. at 177-189).
Case No. 19 MA 108
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{¶72} Appellant also quotes from the prosecution’s closing argument that “[TB]
lied. Monissa lied. Jan Gorsuch lied. The police lied. [AB] lied. The prosecutor’s office
obviously bought it because we’re here prosecuting him.” (Tr. at 450). Again, this is not
hearsay as explained infra, since it was a summary of the cross-examination of appellant
by the prosecution. Further, the prosecution pointed out earlier in closing argument that
the testimony of Monissa Redmond was used to establish when appellant lived with TB
and the changes she observed in AB’s behavior. (Tr. at 412, 443). The prosecution also
stated that TB’s testimony was used to establish the date that appellant lived with her,
where they lived, the changes she observed in AB’s behavior, and the actions she took
when AB told her what had happened. (Tr. at 412, 443). None of the testimony of these
witnesses was used to establish the truth of any statements made by AB concerning
sexual abuse by appellant.
{¶73} Appellant is correct that the prosecution also told the jury to “consider the
testimony of [AB], consider all the other witnesses that corroborated her testimony. And
at the end of the day, I’m confident that you will find this defendant guilty beyond a
reasonable doubt of all 13 counts in the indictment.” (Tr. at 426). However, the
prosecution clarified the use of the testimony of other witnesses in closing by stating, “So
why does the state bother to put up other witnesses at all? Because we want to give you
more information. Think about all that you learned from those other witnesses. You
learned about how the defendant even had an opportunity to have access to this little girl,
that he’s living in the home, that he’s watching the kids.” (Tr. at 442). Thus, the testimony
of these witnesses was used for background, observations about AB’s behavior changes,
and procedure, and not for establishing the truthfulness of AB’s statements of sexual
abuse by appellant. Accordingly, trial counsel was not ineffective in failing to object to the
closing argument and appellate counsel was not ineffective for failing to raise a lack of
objection by trial counsel.
{¶74} Accordingly, appellant’s eighth argument lacks merit.
{¶75} In the ninth argument of his Rule 26(B) application, appellant asserts:
Palmer also raises the issue that, without objection from
trial counsel, nurse Janet Gorsuch was permitted to repeat
Case No. 19 MA 108
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testimonial hearsay statements that were entirely for
forensic purposes rather than for diagnosis or treatment.
{¶76} Appellate counsel raised this issue on appeal in assignment of error
number six. We addressed this assignment of error on direct appeal and found that it
lacked merit. We need not address it again.
{¶77} In the tenth argument of his Rule 26(B) application, appellant asserts:
Appellate counsel was ineffective for failing to argue the
courts[sic] abuse of discretion violated his right to due
process through the 6th and 14th Amendments by
permitting the following. Q: “Were there changes in your
sex life with the defendant?” [Zena: “Objection.”] A.
“Yes.” [The Court: “Overruled.”] A. “It was just different.
Like he wasn’t sexually into me like your boyfriend
supposed to be. Like he wasn’t the same like how you would
be sexually.” (Trial Tr, 145).
{¶78} Appellant contends that his appellate counsel was ineffective for failing to
argue that the trial court abused its discretion in allowing TB to testify as to how her sexual
relationship with appellant had changed. He contends that this violated R.C. 2907.02(D)
and R.C. 2945.59.
{¶79} Appellate counsel raised this issue in a somewhat different manner on
direct appeal. It was presented in appellant’s fourth assignment of error asserting a
violation of appellant’s due process rights when the State presented numerous “other
acts” evidence, which included TB’s testimony that her sexual relationship with appellant
changed while he was living with her.
{¶80} We addressed the assignment of error in the context of Evid. R. 404(B)
and ultimately held that that even if this statement constituted “other act” evidence, and
was improperly admitted, the admission was harmless because the remaining evidence
at trial established appellant’s guilt.
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{¶81} Evid. R. 404(B) provides:
(B) Other Crimes, Wrongs or Acts. 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.
{¶82} R.C. 2907.02(D) provides in relevant part:
Evidence of specific instances of the defendant's sexual activity, opinion
evidence of the defendant's sexual activity, and reputation evidence of the
defendant's sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, the
defendant's past sexual activity with the victim, or is admissible against the
defendant under section 2945.59 of the Revised Code, and only to the
extent that the court finds that the evidence is material to a fact at issue in
the case and that its inflammatory or prejudicial nature does not outweigh
its probative value.
{¶83} R.C. 2945.59 provides in relevant part:
In any criminal case in which the defendant's motive or intent, the absence
of mistake or accident on his part, or the defendant's scheme, plan, or
system in doing an act is material, any acts of the defendant which tend to
show his motive or intent, the absence of mistake or accident on his part, or
the defendant's scheme, plan, or system in doing the act in question may
be proved, whether they are contemporaneous with or prior or subsequent
Case No. 19 MA 108
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thereto, notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant.
{¶84} R.C. 2945.49 and Evid.R. 404(B) are in accord with one another and are
to be read in conjunction with each other. State v. Williams, 134 Ohio St.3d 521, 2012-
Ohio-5695, 983 N.E.2d 1278, ¶17. However, they do differ in some respects, however.
R.C. 2945.59 gives “the trial court discretion to admit evidence of any other acts of a
defendant in cases where motive or intent, absence of mistake or accident, or scheme,
plan, or system in doing an act is material. Id. at ¶17, citing generally Black's Law
Dictionary 1066 (9th Ed.2009) (“material” means “[h]aving some logical connection with
the consequential facts”)(emphasis added).
{¶85} The Ohio Supreme Court has held that “the admissibility of other-acts
evidence pursuant to Evid.R. 404(B) is a question of law.” State v. Hartman, 161 Ohio
St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22. “Determining whether the evidence is
offered for an impermissible purpose does not involve the exercise of discretion * * *,
[therefore] an appellate court should scrutinize the [trial court's] finding under a de novo
standard” of review. Id., quoting Leonard, The New Wigmore: Evidence of Other
Misconduct and Similar Events, Section 4.10 (2d Ed.2019).
{¶86} However, the trial court “has discretion whether to allow other-acts
evidence that is admissible for a permissible purpose.” Id., citing State v. Williams, 134
Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 17. “It is well established that a trial
court's decision to admit evidence is an evidentiary determination within the broad
discretion of the trial court and subject to review on an abuse-of-discretion standard.”
State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19.
{¶87} Our opinion on direct appeal as to harmless error applies here as well.
Even if the trial court erred in admitting TB’s statement because it was impermissible
other act evidence, this statement did not contribute to appellant’s conviction and excising
this statement does not otherwise impact appellant’s guilt. “[A] judgment of conviction
should not be reversed because of ‘the admission * * * of any evidence offered against *
* * the accused unless it affirmatively appears on the record that the accused was or may
have been prejudiced thereby.’ ” State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052,
24 N.E.3d 1153, ¶ 27, citing State v. Crawford, 32 Ohio St.2d 254, 255, 291 N.E.2d 450Case No. 19 MA 108
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(1972), quoting R.C. 2945.83(C). “In making these determinations, an appellate court
‘must excise the improper evidence from the record and then look to the remaining
evidence’ for either overwhelming evidence of guilt or some other indicia that the error
did not contribute to the accused's conviction.” State v. Lavette, 8th Dist. Cuyahoga No.
106169, 2019-Ohio-145, ¶ 47, citing Morris, 141 Ohio St.3d 399 at ¶ 29.
{¶88} Accordingly, appellant’s tenth argument lacks merit.
{¶89} For the above reasons, this Court denies appellant’s Rule 26(B)
application for reopening.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 19 MA 108