State v. Rohde

[Cite as State v. Rohde, 2014-Ohio-5580.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
STEVEN M. ROHDE
Defendant-Appellant
Appellate Case No. 26087
Trial Court Case No. 2013-CR-173
(Criminal Appeal from
(Common Pleas Court)
...........
OPINION
Rendered on the 19th day of December, 2014.
...........
MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
PETER R. CERTO, JR., Atty. Reg. No. 0018880, One South Main Street, Suite 1590, Dayton, Ohio
45402
Attorney for Defendant-Appellant
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.............
WELBAUM, J.
{¶ 1} Defendant-appellant, Steven M. Rohde, appeals from his conviction in the
Montgomery County Court of Common Pleas for one count of sexual imposition following a jury
trial. Specifically, Rohde claims: (1) the trial court lacked subject-matter jurisdiction to hear his
case due to the indictment being filed after the grand jury had been discharged; (2) his
constitutional right to effectively cross-examine the victim was violated when the trial court
issued a discovery sanction that prohibited the defense from impeaching the victim with a poem
the victim allegedly wrote; and (3) his conviction was not supported by sufficient corroborating
evidence and was against the manifest weight of the evidence. For the reasons outlined below,
we will affirm Rohde’s conviction.
Facts and Course of Proceedings
{¶ 2} On May 10, 2013, Rohde was indicted on two counts of unlawful sexual conduct
with a minor in violation of R.C. 2907.04(A), as well as eight counts of sexual imposition in
violation of R.C. 2907.06(A)(4). Rohde pled not guilty to all the charges on May 14, 2013.
Five months later, on October 25, 2013, Rohde filed a motion to quash the indictment on grounds
that the trial court lacked subject-matter jurisdiction, arguing his indictment was improperly filed
after the grand jury had been discharged. The indictment indicates that the grand jury’s term
began on January 1, 2013, but the record does not reflect when the grand jury was discharged.
See Crim.R. 6(G).
{¶ 3} On December 3, 2013, the trial court issued its decision overruling Rohde’s
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motion to quash on grounds that it was untimely per Crim.R. 12. The trial court also found no
evidence of impropriety with regard to the indictment’s filing. The matter then proceeded
toward a jury trial.
{¶ 4} Prior to trial, the State dismissed five of the eight sexual imposition charges
against Rohde, thereby leaving two counts of unlawful sexual conduct with a minor and three
counts of sexual imposition to be tried to the jury. Following trial, the jury found Rohde guilty
of one count of sexual imposition and returned not guilty verdicts on the other four counts.
{¶ 5} Rohde’s conviction stemmed from allegations that he engaged in sexual contact
with a minor, S.L., who is the former best friend of his teenage daughter, D.R. The alleged
abuse occurred during a sleepover at Rohde’s residence when S.L. was 14 years old. There is no
dispute that S.L. slept over at Rohde’s residence often. In addition, the testimony of S.L., D.R.,
their friends, A.W., A.H. and K.H., as well as Rohde’s wife, firmly established that it was a
common occurrence during the sleepovers for the girls to watch movies on a pull-out bed in a
television room before falling asleep. Their testimony also established that Rohde would, at
times, join the girls and watch movies with them.
{¶ 6} A.W. and A.H. testified that Rohde was less likely to join them if S.L. was not
around. A.W. and A.H. also testified that when Rohde was present he would sit next to S.L. on
the pull-out bed and that he would sometimes put his arm around her, try to cuddle with her, or
would hold her “like a teddy bear.” Trans. Vol. II (Dec. 19, 2013), p. 376. A.H. also testified
that Rohde would sometimes sleep with them on the pull-out bed and that when she would wake
up in the morning she would oftentimes see Rohde lying next to S.L. In addition, A.H. testified
that Rohde called S.L. his girlfriend, said that he was going to take her on dates, and at times
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acted as if he wanted to hold her hand.
{¶ 7} While S.L. claimed there were several incidents of abuse during the sleepovers at
Rohde’s residence, the single count of sexual imposition for which Rohde was convicted
concerned a sleepover during the winter break of S.L.’s eighth-grade year in late December 2011.
With regard to that incident, S.L. testified that she, Rohde, and D.R. watched a movie on the
pull-out bed together, and after the movie ended, they all laid down to go to sleep. S.L. then
testified that Rohde moved closer to her and caressed her sides and breasts underneath her bra
and put his hand inside her underwear near her vagina. As Rohde was doing this, S.L. testified
that she started to cry. According to S.L., Rohde then stopped touching her, got up from where
he was laying, sat on the side of the bed, and started petting her hair. At that point, S.L. testified
that D.R. woke up and saw her crying.
{¶ 8} After that incident, S.L. testified that beginning in January 2012, she continued to
attend sleepovers at Rohde’s residence, but that she asked D.R. if they could sleep in D.R.’s
bedroom on an air mattress as opposed to on the pull-out bed in the television room. Following
the new sleeping arrangement, S.L. testified that Rohde did not touch her inappropriately again.
{¶ 9} S.L. also testified that, during her eighth-grade year, she told a few of her peers,
including A.W. and A.H., about what happened with her and Rohde. At trial, both A.W. and
A.H. confirmed that S.L. had a conversation with them about Rohde and testified that they
encouraged S.L. to tell her parents what she had told them. After sometime, S.L. disclosed the
abuse to her mother on December 16, 2012. S.L. explained that the disclosure came after Rohde
sent a text message to her cell phone on December 14, 2012. In the text message, S.L. claimed
that Rohde asked her “what are you doing tonight.” Trial Trans. Vol. II (Dec. 19, 2013), p. 315.
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S.L. testified that the message upset her because it reminded her of everything that happened the
year before. As a result, she decided to disclose the abuse to her mother two days later.
{¶ 10} Upon learning of the abuse, S.L.’s mother went to the school guidance counselor
with S.L., and then contacted the police. After learning of the allegations, Detective Robert
Brazel of the Vandalia Police Department testified that he obtained Rohde’s telephone records
and confirmed that Rohde contacted S.L.’s cell phone on December 14, 2012, and on other
occasions as well.
{¶ 11} In addition, the State called expert witness Dr. Joyce Miceli, a psychologist, who
testified that it is common for abused children not to immediately recognize abusive touching as
inappropriate and to delay disclosing the abuse in order to keep a sense of normalcy. S.L.
testified that she continued spending the night at Rohde’s house after the abuse because she did
not want anything to seem out of the ordinary and did not want to ruin the relationship between
her and D.R. or the relationships within the Rohde family.
{¶ 12} At the close of the State’s case, Rohde orally moved for an acquittal of all five
charges, which the trial court overruled. In his defense, Rohde presented testimony from his
wife who confirmed that S.L. slept over during winter break of December 2011, but denied
Rohde ever sleeping in the television room with the girls. D.R. also testified on Rohde’s behalf,
and stated that she remembered waking up to S.L. crying at 2:00 a.m. during one of their
sleepovers, but denied that her father was in the room at that time. D.R. also testified that she
and S.L. began to sleep in her bedroom as opposed to the television room in 2012.
{¶ 13} Rohde also presented testimony from his eldest 21-year-old daughter, and a
friend of hers; and D.R.’s friend, K.H. Each of these witnesses denied seeing anything
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inappropriate between Rohde and S.L. Despite this evidence, the jury found Rohde guilty of one
count of sexual imposition.
{¶ 14} After the guilty verdict, on January 3, 2014, Rohde filed three motions–a motion
for acquittal, motion for new trial, and motion to arrest judgment. The motion for acquittal was
overruled at Rohde’s sentencing hearing.
{¶ 15} In the motion for new trial, Rohde argued that the trial court improperly
prohibited the defense from questioning S.L. about a poem she allegedly wrote and posted on the
Internet. During cross-examination, S.L. testified that she had a happy home life, and in an
attempt to impeach that testimony, defense counsel began to ask S.L. whether she was familiar
with a passage from the poem, which discussed the author’s unhappiness with her home life and
parents. The State objected to the defense questioning S.L. about the poem primarily on grounds
that the poem was never disclosed during discovery.
{¶ 16} The defense conceded at trial that it did not disclose the poem to the State, but
argued it was not obligated to disclose the poem because it was impeachment evidence. The
trial court, however, ruled in favor of the State and prevented the defense from questioning S.L.
about the poem. Thereafter, the defense proffered the poem as evidence and then filed the
motion for new trial arguing that the trial court’s ruling concerning the poem was made in error.
The trial court overruled the motion for new trial finding that it appropriately prohibited the
defense from using the poem due to the defense’s discovery violation.
{¶ 17} In the motion to arrest judgment, Rohde raised the same argument as in his
pretrial motion to quash the indictment, which argued that the trial court did not have
subject-matter jurisdiction to hear his case due to the indictment being filed ten days after the
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grand jury was discharged. The trial court overruled this motion as well.
{¶ 18} After the trial court ruled on Rohde’s three post-trial motions, on January 21,
2014, the trial court sentenced Rohde to various community control sanctions not to exceed five
years. Among the sanctions, Rohde was ordered to serve a 20-day jail term, which was stayed
pending this appeal. Rohde now appeals from his conviction for sexual imposition, raising four
assignments of error for review.
First Assignment of Error
{¶ 19} Rohde’s First Assignment of Error is as follows:
THE TRIAL COURT DID NOT HAVE JURISDICTION TO HEAR THE CASE
AND ERRED IN OVERRULING DEFENDANT’S MOTION TO QUASH THE
INDICTMENT WHEN THE INDICTMENT WAS FILED AFTER THE GRAND
JURY TERM EXPIRED.
{¶ 20} Under this assignment of error, Rohde argues the trial court erred in overruling
his pretrial motion to quash the indictment as untimely. In support of this claim, Rohde
contends his motion presented a jurisdictional defect, which could be raised at any time, and was
not subject to the time restraints for filing pretrial motions set forth in Crim.R. 12. To that end,
Rohde claims his indictment was not properly filed in that it was filed with the clerk of courts
after the grand jury’s term had expired. According to Rohde, this alleged error left the trial court
without subject-matter jurisdiction to hear his case.
{¶ 21} Because subject-matter jurisdiction involves a trial court’s power to hear a case,
it may be raised as an issue at any time. State v. Mbodji, 129 Ohio St. 3d 325, 2011-Ohio-2880,
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951 N.E.2d 1025, ¶ 10. This principle is reflected in Crim.R. 12(C)(2), which governs pretrial
motions. The rule states, in pertinent part that:
Prior to trial, any party may raise by motion any defense, objection, evidentiary
issue, or request that is capable of determination without the trial of the general
issue. The following must be raised before trial:
***
(2) Defenses and objections based on defects in the indictment, information, or
complaint (other than failure to show jurisdiction in the court or to charge an
offense, which objections shall be noticed by the court at any time during the
pendency of the proceeding); * * *
(Emphasis added.) Crim.R. 12(C)(2).
{¶ 22} Therefore, absent a jurisdictional question, an attack on the validity of an
indictment via a pretrial motion should be brought before the trial court as provided by Crim. R.
12. State v. Jones, 6th Dist. Lucas No. L-09-1181, 2009-Ohio-6498, ¶ 15. Specifically,
Crim.R. 12(D) provides that “[a]ll pretrial motions except as provided in Crim.R. 7(E) and 16(M)
shall be made within thirty-five days after arraignment or seven days before trial, whichever is
earlier.”
{¶ 23} Here, Rohde filed his motion to quash on October 25, 2013, approximately 150
days after his arraignment. Accordingly, the motion was not timely filed under Crim.R. 12(D).
However, as previously noted, Rohde contends that his claim, i.e., that his indictment should
have been quashed due to being filed after the grand jury was discharged, is jurisdictional in
nature and not subject to the time restraints in Crim.R. 12.
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{¶ 24} It is well-established that a trial court obtains subject-matter jurisdiction over a
case upon a valid indictment being returned and filed with the trial court. State v. Pillow, 2d
Dist. Greene No. 2010-CA-71, 2011-Ohio-4294, ¶ 18; see also State v. Leigh, 2d Dist.
Montgomery No. 18294, 2001 WL 1345957, *2 (Nov. 2, 2001). However, even if we found that
Rohde’s motion to quash was timely filed as a challenge to the trial court’s jurisdiction, the trial
court still did not err in overruling the motion to quash his indictment.
{¶ 25} The return and filing process for indictments is outlined in Crim.R. 6(F) and R.C.
2939.22. These provisions require the indictment to be returned by the foreman to the trial court
and then filed with the clerk who must endorse the date of filing. While a grand jury’s service
ends after it is discharged, see Crim.R. 6(G) and State v. Schwab, 109 Ohio St. 532, 535-536, 143
N.E. 29 (1924), there is no requirement in Crim.R. 6 or R.C. 2939.22 that the indictment must be
filed prior to the discharge or that the filing requirement is bestowed upon the grand jury.
{¶ 26} Here, the record establishes the grand jury foreman signed and returned Rohde’s
indictment, and that the indictment was thereafter filed on May 10, 2013. The grand jury’s term
began on January 1, 2013, but the record does not reflect whether its term was extended beyond
four months. It is possible, as Rohde argues, that the indictment was filed after the grand jury
was discharged. However, as noted above, there is nothing in Crim.R. 6 or R.C. 2939.22 that
prohibits filing a timely-signed indictment after the grand jury’s discharge. There is also nothing
in the record indicating that the grand jury’s decision to indict Rohde was made after it was
discharged and relieved of its authority to do so. Therefore, based on the record and the
aforementioned rules governing grand juries, we find no defect with respect to the indictment’s
filing and conclude that the subject-matter jurisdiction of the trial court was properly invoked.
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Accordingly, the trial court did not err in overruling Rohde’s motion to quash the indictment.
{¶ 27} Rohde’s First Assignment of Error is overruled.
Second Assignment of Error
{¶ 28} Rohde’s Second Assignment of Error states as follows:
THE TRIAL COURT ERRED IN RESTRICTING CROSS[-]EXAMINATION
USING DEFENDANT’S PROFFERED EXHIBIT A ON THE BASIS THAT IT
WAS NOT PROVIDED DURING DISCOVERY.
{¶ 29} Under this assignment of error, Rohde contends the trial court erred by
prohibiting him from impeaching S.L.’s testimony using a poem that she allegedly wrote and
posted on the Internet. The poem, which the defense proffered on the record, discusses the
author’s unhappiness with her home life and parents. According to Rohde, his right to
effectively cross-examine S.L. under the Confrontation Clause of the United States Constitution
was violated when the trial court prohibited defense counsel from questioning her about the poem
as the result of a discovery sanction for failing to disclose the poem to the State.
{¶ 30} Crim.R. 16 governs discovery in criminal prosecutions. By its terms, the
purpose of Crim.R. 16 is “to provide all parties in a criminal case with the information necessary
for a full and fair adjudication of the facts, to protect the integrity of the justice system and the
rights of defendants, and to protect the well-being of witnesses, victims, and society at large.”
Crim.R. 16(A). The Supreme Court of Ohio has stated that the overall objective of the discovery
rules is “ ‘is to remove the element of gamesmanship from a trial’ ” and “to prevent surprise and
the secreting of evidence favorable to one party.” (Citation omitted.) Lakewood v. Papadelis,
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32 Ohio St. 3d 1, 3, 511 N.E.2d 1138 (1987), quoting State v. Howard, 56 Ohio St. 2d 328, 333,
383 N.E.2d 912 (1978). “Compliance with Crim.R. 16 eliminates, at least to some degree, trial
by ambush[.]” (Citation omitted.) State v. Arnold, 189 Ohio App. 3d 507, 2010-Ohio-5379,
939 N.E.2d 218, ¶ 75 (2d Dist.).
{¶ 31} Crim.R. 16(L)(1) provides that: “If at any time during the course of the
proceedings it is brought to the attention of the court that a party has failed to comply with this
rule or with an order issued pursuant to this rule, the court may order such party to permit the
discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence
the material not disclosed, or it may make such other order as it deems just under the
circumstances.”
{¶ 32} “Sanctions for a Crim.R. 16 discovery violation are within the discretion of the
trial court and should be imposed equally, without regard to the status of the offending party.”
State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 20. “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”
(Citation omitted.) Id. at ¶ 34. A decision is unreasonable if a trial court does not engage in a
sound reasoning process. AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 33} “[A]ny infringement on a defendant’s constitutional rights caused by the
[discovery] sanction must be afforded great weight.” Lakewood, 32 Ohio St. 3d at 5, 511 N.E.2d
1138. Consequently, when imposing a discovery sanction, “a trial court must inquire into the
circumstances surrounding a discovery violation, must balance the competing interests, and ‘must
impose the least severe sanction that is consistent with the purpose of the rules of discovery.’ ”
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(Emphasis deleted.) Darmond at ¶ 21, quoting Lakewood at 5 and paragraph two of the syllabus.
{¶ 34} In this case, the trial court determined that Rohde violated the rules of discovery
when it failed to disclose the poem allegedly written by S.L. to the State and thus prohibited
Rohde from using the poem to impeach S.L.’s testimony that she had a happy home life. We
note there is nothing in Crim.R. 16 that requires a party to disclose a witness’s prior inconsistent
statement that is to be used as impeachment evidence. State v. Pierce, 2011-Ohio-4873, 968
N.E.2d 1019, ¶ 76 (2d Dist.) However, the Local Rules of Practice and Procedure for the
General Division of the Montgomery County Court of Common Pleas call for reciprocal
discovery of all witness statements.
{¶ 35} Mont. Co. C.P.R. 3.03 I (D)(2)(4) provides that: “An information packet shall be
delivered to the defendant's counsel upon the execution of a Demand and Receipt for the
information packet. The information packet shall contain * * * (b) All witness statements.”
(Emphasis added.) Section (D)(6) of the rule then states that: “The execution of a demand and
receipt for an information packet and the acceptance of an information packet by counsel for the
defendant automatically obligates the defendant to provide to the prosecutor reciprocal
discovery as set forth in Section I (D) (2) (4) of this Local Rule and as required by Rule 16 of the
Ohio Rules of Criminal Procedure.” (Emphasis added.) Mont. Co. C.P.R. 3.03 I (D)(6).
Accordingly, upon accepting the information packet from the State, the defense has the reciprocal
duty to provide the State with all witness statements.
{¶ 36} In State v. Flanigan, 2d Dist. Montgomery No. 21460, 2007-Ohio-3158, this
court held that when defense counsel makes a request for discovery and acknowledges by his
signature that he will reciprocate with full discovery under both Crim.R. 16 and the court’s local
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rules, “that defense counsel waive[s] his right to challenge [the witness’s] inconsistent statement
with a document that it failed to supply the [S]tate in violation of the local rules.” Id. at ¶ 70;
see also Pierce at ¶ 76 (finding that a discovery sanction “might have been appropriate if there
were a case-management plan requiring reciprocal discovery of witness statements”).
{¶ 37} Here, Rohde’s defense counsel signed a request for discovery under Crim.R.
16(B) acknowledging that he received the information packet from the State and that he had a
reciprocal duty of disclosure pursuant to Crim.R. 16(H) and the Local Court Management Plan.
See Request for Discovery (May 17, 2013), Montgomery County Common Pleas Court Case No.
2013 CR 00173, Docket No. 12, p. 1. Despite agreeing to a reciprocal duty of disclosure,
Rohde’s counsel conceded at trial that he did not provide the State with the poem allegedly
written by S.L.
{¶ 38} Assuming S.L.’s poem qualifies as a witness statement, the defense arguably
violated the local rules of discovery by failing to fulfill its reciprocal duty to disclose all witness
statements. However, we need not specifically address whether S.L.’s poem qualifies as a
witness statement under the local rules, because the extent of Rohde’s cross-examination of S.L.
was within the sound discretion of the trial court, and the court’s decision prohibiting the defense
from using the poem to impeach S.L. was not an abuse of its discretion under the circumstances
of this case. See State v. Green, 66 Ohio St. 3d 141, 147, 609 N.E.2d 1253 (1993) (finding that
the “ ‘extent of cross-examination with respect to an appropriate subject of inquiry is within the
sound discretion of the trial court’ ” and that “the right of cross-examination includes the right to
impeach a witness’s credibility”), quoting Alford v. United States, 282 U.S. 687, 694, 51 S. Ct.
218, 75 L. Ed. 624 (1931).
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{¶ 39} The Confrontation Clause entitles a defendant to engage in an effective
cross-examination of his or her accusers, but it does not guarantee a “cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985). Rather, “trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on * *
* cross-examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety or interrogation that is repetitive or only marginally
relevant. ” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
Additionally, “ ‘[a] trial court has the discretion to determine whether two statements are
inconsistent and whether any differences between prior statements and trial testimony are
material inconsistencies.’ ” State v. Raia, 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707,
¶ 26, quoting State v. Freeman, 7th Dist. Jefferson No. 07 JE 5, 2008-Ohio-2925, ¶ 53.
{¶ 40} Here, the trial court questioned whether S.L.’s poem was relevant and truly
inconsistent with the testimony provided at trial. The record indicates the poem was only
marginally relevant, as its contents do not prove or disprove any of the elements of the sexual
offenses for which Rohde was charged. Rather the poem concerns the collateral issue of S.L.’s
home life and was intended to be used as a prior inconsistent statement to attack S.L.’s
credibility. We note, “[i]t is not error for a trial court to prohibit extrinsic evidence of a prior
inconsistent statement where the statement is relevant to a collateral issue that is being tried, and
the statement is pertinent only with respect to the credibility of the witness.” (Citation omitted.)
State v. Markland, 5th Dist. Stark No. 2001CA00356, 2002-Ohio-5104, ¶ 42.
{¶ 41} Furthermore, it is questionable whether S.L.'s poem accurately reflects her
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feelings regarding her home life. Poems are not necessarily based in fact; therefore, S.L.'s poem
could have been a work of fiction or merely represented how she felt during a short period of
time. Because it was unknown when and why S.L. wrote the poem, or if she wrote it at all, it is
dubious at best as to whether the poem truly contradicts her testimony regarding her home life.
While some of this information could have been clarified through questioning at trial, it was
within the trial court’s discretion whether to permit such questioning during cross-examination.
We find that it was not unreasonable for the trial court to prohibit questioning regarding the
poem. Even if S.L. had testified that she wrote the poem and was unhappy with her home life
when she wrote it, this does not necessarily mean that her prior testimony regarding her home life
was false and does not affect her credibility with respect to the allegations she made against
Rohde.
{¶ 42} For the foregoing reasons, we conclude the trial court did not abuse its discretion
in prohibiting Rohde’s counsel from using the poem to impeach S.L. during cross-examination.
Accordingly, Rohde’s Second Assignment of Error is overruled.
Third and Fourth Assignments of Error
{¶ 43} For purposes of convenience, we will address Rohde’s Third and Fourth
Assignments of Error together. They are as follows:
III. THE TRIAL COURT ERRED IN FAILING TO GRANT
APPELLANT/DEFENDANT’S MOTION FOR ACQUITTAL WHEN
THE VICTIM’S TESTIMONY WAS UNSUPPORTED BY OTHER
EVIDENCE.
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IV. THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 44} Under the foregoing assignments of error, Rohde challenges the legal sufficiency
and manifest weight of the evidence. Specifically Rohde argues that S.L.’s testimony was
insufficient to support a conviction for sexual imposition because her testimony regarding the
alleged abuse was unsupported by any other corroborating evidence. Rohde also argues his
conviction was against the manifest weight of the evidence because S.L.’s testimony regarding
the abuse was refuted by the testimony of D.R. and his wife.
{¶ 45} As a preliminary matter, we note that “[a] challenge to the sufficiency of the
evidence differs from a challenge to the manifest weight of the evidence.” State v. McKnight,
107 Ohio St. 3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 69. “A sufficiency of the evidence
argument disputes whether the State has presented adequate evidence on each element of the
offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v.
Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78
Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 46} “When reviewing a claim as to sufficiency of evidence, the relevant inquiry is
whether any rational factfinder viewing the evidence in a light most favorable to the state could
have found the essential elements of the crime proven beyond a reasonable doubt.” (Citations
omitted.) State v. Dennis, 79 Ohio St. 3d 421, 430, 683 N.E.2d 1096 (1997). “The verdict will
not be disturbed unless the appellate court finds that reasonable minds could not reach the
conclusion reached by the trier-of-fact.” (Citations omitted.) Id.
{¶ 47} In contrast, “[a] weight of the evidence argument challenges the believability of
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the evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating whether a
conviction is against the manifest weight of the evidence, the appellate court must review the
entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and
determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717
(1st Dist.1983). “The fact that the evidence is subject to different interpretations does not render
the conviction against the manifest weight of the evidence.” State v. Adams, 2d Dist. Greene
Nos. 2013 CA 61, 2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 48} “The credibility of the witnesses and the weight to be given to their testimony are
matters for the trier of facts to resolve.” State v. Hammad, 2d Dist. Montgomery No. 26057,
2014-Ohio-3638, ¶ 13, citing State v. DeHass, 10 Ohio St. 2d 230, 231, 227 N.E.2d 212 (1967).
Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder’s
decisions whether, and to what extent, to credit the testimony of particular witnesses. State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). “This court
will not substitute its judgment for that of the trier of facts on the issue of witness credibility
unless it is patently apparent that the factfinder lost its way.” (Citation omitted.) State v.
Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997).
{¶ 49} “Although sufficiency and manifest weight are different legal concepts, manifest
weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is
supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.”
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(Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11.
As a result, “a determination that a conviction is supported by the weight of the evidence will
also be dispositive of the issue of sufficiency.” (Citations omitted.) State v. Braxton, 10th Dist.
Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 50} Rohde was convicted of one count of sexual imposition in violation of R.C.
2907.06(A)(4). This statute provides, in pertinent part, that: “No person shall have sexual
contact with another, not the spouse of the offender * * * when any of the following applies: * *
* (4) The other person * * * is thirteen years of age or older but less than sixteen years of age,
whether or not the offender knows the age of such person, and the offender is at least eighteen
years of age and four or more years older than such other person.” R.C. 2907.06(A)(4).
{¶ 51} “Sexual contact” is defined as “any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01.
“ ‘[T]here is no requirement that there be direct testimony regarding sexual arousal or
gratification.’ ” State v. Clark, 2d Dist. Clark No. 2013 CA 52, 2014-Ohio-855, ¶ 12, quoting
State v. Gesell, 12th Dist. Butler No. CA2005-08-367, 2006-Ohio-3621, ¶ 25. The trier of fact
may infer from the evidence presented at trial whether the purpose of the touching was for the
defendant’s sexual arousal or gratification. Id.
{¶ 52} After a thorough review of the record, we conclude that S.L.’s trial testimony
indicates that Rohde engaged in sexual contact with her in violation of R.C. 2907.06(A)(4).
However, section (B) of the statute provides that: “No person shall be convicted of [Sexual
Imposition] solely upon the victim’s testimony unsupported by other evidence.” R.C.
19
2907.06(B). As a result, Rohde argues that the corroboration required by R.C. 2907.06(B) is not
present in this case because there is no other evidence supporting S.L.’s testimony.
{¶ 53} In State v. Economo, 76 Ohio St. 3d 56, 666 N.E.2d 225 (1996), “[t]he Supreme
Court of Ohio stressed long ago that ‘[t]he corroborating evidence necessary to satisfy R.C.
2907.06(B) need not be independently sufficient to convict the accused, and it need not go to
every essential element of the crime charged. Slight circumstances or evidence which tends to
support the victim's testimony is satisfactory.’ ” State v. Shah, 2d Dist. Montgomery No. 25855,
2014-Ohio-1449, ¶ 49, quoting Economo at syllabus. In Economo, the only evidence
corroborating any element of sexual imposition was that the alleged victim promptly reported the
incident to the authorities, appeared to be upset, and did not want to be alone with the alleged
perpetrator of the offense. These slight circumstances which tended to support the victim's
testimony were deemed to constitute sufficient corroboration. Economo at 60.
{¶ 54} Here, we find that there is sufficient other evidence that tends to support and
corroborate S.L.’s testimony regarding the abuse. Various witnesses, including A.W., A.H.,
D.R. and Rohde’s wife, testified that sleepovers at Rohde’s residence were common and that
during these sleepovers, the girls, including S.L., would watch movies on a pull-out bed in the
television room. These witnesses also testified that Rohde would sometimes join the girls in
watching movies, and A.W. and A.H. testified that he would lay with them on the pull-out bed.
A.H. further testified that Rohde would sometimes sleep on the pull-out bed with them and that
she would see him lying next to S.L. the next morning. Rohde’s wife also confirmed that S.L.
slept over at their house during winter break of December 2011. All of this testimony evidences
Rohde’s opportunity to commit the abuse in the manner S.L. alleged it occurred.
20
{¶ 55} Most importantly, Rohde’s daughter testified that she once witnessed S.L. crying
at 2:00 a.m. during a sleepover in the television room and indicated that it was a memorable
moment because it was one of the only times that she had seen S.L. cry. Rohde’s daughter also
confirmed that she and S.L. began to sleep in her room as opposed to the television room in 2012.
This testimony supports S.L’s version of the December 2011 incident and also corroborates
S.L.'s testimony that she did not thereafter sleep on the pull-out bed in the television room.
{¶ 56} We also note that S.L.’s reasons for hiding the abuse and delaying its disclosure
are corroborated by the testimony of expert witness Dr. Joyce Miceli. There was also evidence
presented through the testimony of Detective Brazel that Rohde sent a text message to S.L. as she
alleged, as well as on a variety of other dates.
{¶ 57} Rohde contends that D.R.’s testimony that he was not in the room when S.L. was
crying and his wife’s testimony that he never slept in the television room with the girls refutes
S.L.’s testimony and renders his conviction against the manifest weight of the evidence. We
disagree, as the decision as to what extent to credit the testimony of D.R. and Rohde’s wife “is
within the peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The fact that
the jury chose to believe S.L.’s account of events over the account given by D.R. and Rohde’s
wife does not render his conviction as being against the manifest weight of the evidence.
{¶ 58} Based upon the testimony presented at trial, we conclude that Rohde’s conviction
for one count of sexual imposition is not against the manifest weight of the evidence and is
necessarily supported by sufficient evidence. Accordingly, his Third and Fourth Assignments of
Error are overruled.
21
Conclusion
{¶ 59} Having overruled all four of Rohde’s assignments of error, the judgment of the
trial court is affirmed.
.............
FROELICH, P.J., concurs.
DONOVAN, J., concurs in judgment only.
Copies mailed to:
Mathias H. Heck
April F. Campbell
Peter R. Certo, Jr.
Hon. Timothy N. O’Connell