State v. Sims

[Cite as State v. Sims, 2023-Ohio-1179.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case
No. 21CA15
v. :
GRANT ADRIAN MYQUAL SIMS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Kort Gatterdam and Erik P. Henry, Columbus, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and
Merry M. Saunders, Athens County Assistant Prosecuting Attorney,
Athens, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-3-23
ABELE, J.
{¶1} This is an appeal from an Athens County Common Pleas
Court judgment of conviction and sentence. A jury found Grant
Adrian Myqual Sims, defendant below and appellant herein, guilty
of two counts of rape, in violation of R.C. 2907.02(A)(2) and
R.C. 2907.02(A)(1)(c).
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION TO SEVER THE RAPE CHARGES
INTO SEPARATE TRIALS AND VIOLATED
Athens App. No. 21CA15 2
APPELLANT’S DUE PROCESS AND FAIR TRIAL
RIGHTS GUARANTEED BY THE UNITED STATES AND
OHIO CONSTITUTIONS.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN ADMITTING HEARSAY
STATEMENTS AND VIOLATED APPELLANT’S RIGHTS
TO DUE PROCESS AND TO A FAIR TRIAL AS
GUARANTEED BY THE UNITED STATES AND OHIO
CONSTITUTIONS.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN ADMITTING MEDICAL
RECORDS AND EVIDENCE COLLECTION KITS THEREBY
VIOLATING APPELLANT’S RIGHTS TO DUE PROCESS
AND TO A FAIR TRIAL AS GUARANTEED BY THE
UNITED STATES AND OHIO CONSTITUTIONS.”
FOURTH ASSIGNMENT OF ERROR:
“THE ADMISSION OF OTHER ACTS TESTIMONY AND
EVIDENCE REGARDING OFFENSES TO WHICH
APPELLANT PLED GUILTY TO VIOLATED RULES 403
AND 404 AND APPELLANT’S RIGHTS TO DUE
PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY
THE UNITED STATES AND OHIO CONSTITUTIONS.”
FIFTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN ADMITTING RECORDS
FROM THE BUREAU OF CRIMINAL INVESTIGATION
THEREBY VIOLATING APPELLANT’S RIGHTS TO DUE
PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY
THE UNITED STATES AND OHIO CONSTITUTIONS.”
SIXTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN IT
ENTERED A JUDGMENT OF CONVICTION BASED ON
INSUFFICIENT EVIDENCE AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF APPELLANT’S RIGHTS UNDER THE UNITED
STATES AND OHIO CONSTITUTIONS.”
SEVENTH ASSIGNMENT OF ERROR:
Athens App. No. 21CA15 3
“THE TRIAL COURT IMPOSED A SENTENCE CLEARLY
AND CONVINCINGLY CONTRARY TO LAW, THE RECORD
CLEARLY AND CONVINCINGLY DOES NOT SUPPORT
THE TRIAL COURT’S SENTENCING FINDINGS, AND
THE SENTENCE IMPOSED IS INCONSISTENT WITH
THE PURPOSES AND PRINCIPLES OF SENTENCING
CONTRARY TO R.C. 2929.11 AND R.C. 2929.12
AND APPELLANT’S RIGHTS TO DUE PROCESS
GUARANTEED BY SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION AND THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
{¶3} This appeal involves two separate encounters that
occurred between appellant and J.K. and K.H.1 Appellant does not
deny sexual encounters with the individuals, but instead
contends that the encounters were consensual.
{¶4} On October 24, 2018, appellant met J.R. at a hookah
lounge. The next day, J.R. told friends she had been sexually
assaulted, and later sought an examination at a local hospital.
{¶5} On September 18, 2019 or the early morning hours of
September 19, 2019, appellant met K.H. after she spent many
hours drinking alcohol. When K.H. awoke the next day, she
thought she had been raped and visited a hospital for
examination. The results of each examination identified
appellant as the individual who had engaged in sexual contact
1
Appellant also was charged with rape that involved a third
individual, K.K. The jury found appellant not guilty of this
offense. We therefore do not include additional details of
appellant’s encounter with K.K. unless relevant to appellant’s
assignments of error.
Athens App. No. 21CA15 4
with J.R. and K.H.
{¶6} On February 24, 2020, an Athens County Grand Jury
returned an indictment that charged appellant with (1) three
counts of rape, in violation of R.C. 2907.02(A)(2), (2) one
count of rape in violation of R.C. 2907.02(A)(1)(c), (3) one
count of theft, in violation of R.C. 2913.02(A)(1), and (4) one
count of identity fraud, in violation of R.C. 2913.49(B)(1).
Appellant pleaded not guilty to all charges.
{¶7} Subsequently, appellant filed a motion to sever the
charges for trial. Appellant asserted that trying the cases
together, with three different victims, would cause undue
prejudice and allow the state to, in effect, introduce “other
acts” evidence. Appellant argued that trying the offenses
together would cause him to suffer the following unfair
prejudice: (1) the jury would hear “inflammatory accusations”
that three individuals accused appellant of rape before hearing
any evidence, which would “create an image of an individual
predisposed to preying on women”; (2) the facts regarding “each
incident contain slight similarities that present a strong
likelihood the jury will confuse the incidents”; and (3)
appellant’s “ability to testify may be severely hampered.”
Appellant further asserted that the state could not overcome his
showing of prejudice because the state could not establish that
the evidence regarding the joined offenses would be admissible
Athens App. No. 21CA15 5
as other-acts evidence, or that the evidence concerning each
offense is simple and direct.
{¶8} The state, however, asserted that trying the offenses
together would not prejudice appellant’s right to a fair trial.
The state disputed appellant’s claim that joining the offenses
would impede his ability to testify and claimed that the
evidence would be simple and direct.
{¶9} After consideration, the trial court overruled
appellant’s motion to sever the charges into separate trials and
stated that appellant “failed to furnish sufficient information
to establish that his rights would be prejudiced by trying
separate counts together at trial.”
{¶10} On July 20 to July 23, 2020, the trial court held a
jury trial. Before the trial began, appellant pleaded guilty to
counts five and six: (1) theft, in violation of R.C.
2913.02(A)(1); and (2) identity fraud, in violation of R.C.
2913.49(B)(1).
{¶11} At trial, J.R. testified that, while she talked to a
friend at a local hookah lounge, she noticed appellant enter the
lounge. After they spoke and exchanged contact information,
appellant unexpectedly kissed her. J.R. indicated she “was
extremely uncomfortable and embarrassed.”
{¶12} As J.R. prepared to leave the lounge, appellant asked
her for a ride and she agreed. When they reached appellant’s
Athens App. No. 21CA15 6
residence, which happened to be very near to the lounge,
appellant told J.R. to pull into a driveway. Once in the
driveway, appellant “insisted” J.R. move to the vehicle’s
backseat. J.R. stated she became scared and did not exit the
vehicle because “there would have been nowhere to go to.”
Additionally, J.R. stated that her car belonged to her
grandfather and she did not feel she could abandon it.
{¶13} After J.R. followed appellant’s instructions and
crawled into the backseat, appellant removed her pants and
undergarments, then began to perform cunnilingus and inserted
his fingers into her vagina. J.R. told appellant “no” and that
she did not want him to do that, but appellant did not stop.
J.R. related that she “was panicking,” her “body shut down,” and
she was crying. Appellant then began to place his penis inside
her vagina.
{¶14} At that point, a car stopped next to them in the
driveway and appellant exited. Before he did go, he told J.R.
that “he thought that it might have been a kink for [her] to say
no.” J.R. responded, however, that she “really did mean no.”
J.R. then pulled up her pants, returned to the front seat and
drove away. As she drove home, she stated she “was in a state
of shock.”
{¶15} J.R. explained that she went to work the day after the
incident, but did not remember going to work and could not focus
Athens App. No. 21CA15 7
on her job. When a co-worker asked J.R. if she was okay, J.R.
said she was not and told the co-worker that she should have
called off work.
{¶16} When the state introduced into evidence a copy of
Facebook messages that J.R. exchanged with the manager of the
hookah lounge, appellant objected and claimed the messages are
hearsay. The state asserted, however, that the messages are
present sense impressions or excited utterances. The trial
court overruled appellant’s objection. J.R. then reviewed the
exhibit that contained a copy of her Facebook message to the
lounge owner, Maj. In the message, J.R. asked Maj if he could
“ban someone for [her],” and she “was just sexually assaulted.”
{¶17} The state also attempted to introduce into evidence
another Facebook message that J.R. exchanged with a friend.
After appellant objected, the trial court asked about the amount
of time that elapsed between the incident and J.R.’s messages,
and the state indicated that J.R. made the statements the next
day. The court then overruled the objection and J.R. testified
that on October 25, 2018 she messaged her friend that she “was
just sexually assaulted.”
{¶18} After J.R.’s testimony, the state informed the trial
court that it intended to present testimony and evidence
regarding J.R.’s medical records, and that appellant planned to
object to the admission of those records. Appellant argued that
Athens App. No. 21CA15 8
the medical records did not fall within any hearsay exception,
and instead, fell more within the realm of law enforcement
investigative effort than statements related to medical
treatment. The trial court, however, overruled the objection.
{¶19} At that point, registered Nurse Rachel Burns Carter
testified that she performed J.R.’s intake examination. During
her testimony, Carter read directly from J.R.’s incident
narrative and recited a direct quote from J.R. Appellant did
not object when Carter read directly from J.R.’s narrative.
After Carter obtained J.R.’s narrative, she began the evidence-
collection process. When the state introduced the sexual-
assault evidence-collection kit, appellant objected and wished
to “renew the objection with the same basis.” The court noted,
then overruled, appellant’s objection.
{¶20} K.H. testified that on September 18, 2019, she
celebrated a friend’s birthday and, throughout the night,
consumed multiple alcoholic beverages. K.H. stated that she
does not remember every part of the evening and does not
remember leaving the last bar she visited, but does remember
sitting on her porch listening to music. As K.H. sat on her
porch, appellant approached her and commented on the music and
“that’s really all that [K.H.] remember[s].” K.H. indicated
that she does not remember anything else except “[t]he next
thing” “is waking up the next day.”
Athens App. No. 21CA15 9
{¶21} K.H. testified that when she eventually awoke around
1:30 p.m., she “was completely naked” and “like covered in
piss.” When K.H. visited the bathroom she also discovered
bleeding from her anus. She then looked for her belongings and
discovered her purse had been rummaged through and her debit
card missing. K.H. then left her house and visited a
restaurant. As she waited in line at the restaurant, she told a
friend about the previous night’s events and stated, “I think I
got raped last night actually.” At that point, K.H. went home
to call her mother.
{¶22} The state next introduced into evidence a text message
from K.H. to her boss the day after the encounter. Appellant
objected and asserted the message constitutes inadmissible
hearsay, but the state argued that the statement is an excited
utterance. The trial court overruled appellant’s objection, but
determined the state could not introduce the printed text
message into evidence. The prosecutor then asked K.H. to read
her text message, “hey something really traumatic happened to me
last night and I do not (inaudible). Will you please work my
five to close tonight?” After she sent the text message, K.H.
visited the hospital.
{¶23} K.H. later discovered that someone had used her debit
card at multiple locations and spent approximately $1,500. The
state introduced evidence that appellant had used the debit
Athens App. No. 21CA15 10
card, but appellant objected regarding the specific locations
and the use of the debit card. In particular, appellant argued
that because he had pleaded guilty to theft and identity fraud,
any evidence regarding the debit card is not relevant. The
state asserted, however, that the evidence is relevant to show
how police apprehended appellant. The trial court agreed and
overruled appellant’s objection.
{¶24} After K.H.’s testimony, the state indicated that it
intended to present evidence regarding K.H.’s medical records.
Although appellant again argued that the medical records did not
fall within any hearsay exception, the trial court overruled the
objection. Registered Nurse Jennifer Young then testified that
on September 19, 2019, she performed K.H.’s sexual-assault
examination. During her testimony, Young read directly from
K.H.’s incident narrative and stated that it is a direct quote
from K.H. Appellant did not object.
{¶25} After the state presented the individual accounts of
each incident and each individual’s nurse’s testimony, the state
introduced testimony from forensic scientists who tested DNA
obtained from the medical kits. Shortly after Bureau of
Criminal Investigation forensic scientist Devonie Herdeman began
to testify, appellant objected to the BCI reports, as well as
the corresponding testimony, and asserted that because the
reports and testimony contain the words “offense” and “victim,”
Athens App. No. 21CA15 11
the use of those terms suggests “a rape has occurred and that
[appellant] did it.” Appellant also argued that the reports
constitute inadmissible hearsay and Evid.R. 803(8) prohibits the
reports because they are similar to a police officer’s report of
an investigation. The trial court, however, overruled
appellant’s objection. Herdeman and other BCI forensic
scientists then testified that the DNA obtained during the
medical examinations matched appellant’s DNA profile.
{¶26} The state next called to testify forensic toxicologist
Dr. George Behonick, who stated that K.H. had a .146% blood
ethanol concentration when submitted on September 19, 2019 at
5:00 p.m. Dr. Behonick also explained the effects alcohol has
on the nervous system and, as the blood-alcohol concentration
surpasses .3%, a person can appear to be “in a stupor” or
“comatose,” and the person’s memory impaired.
{¶27} Appellant testified in his defense and admitted he
engaged in sexual contact with J.R. and K.H., but maintained the
contact had been consensual. Appellant explained that he met
J.R. at the hookah lounge and thought they made a connection, so
he kissed her. When the lounge closed, he asked J.R. for a ride
home, and she agreed. When he and J.R. arrived in his driveway
he told J.R. he did not like the front seat and that he
“want[ed] to get in the backseat with [her],” J.R. agreed. Once
in the backseat, appellant told J.R. she looked beautiful and he
Athens App. No. 21CA15 12
wanted to kiss her. Appellant then engaged in oral sex with
J.R. and he thought “it was okay for us to have sex,” but when
he placed his penis on J.R., she began to cry and, when she
started to cry, he “immediately put [his] penis away.”
Appellant told J.R. that he was “sorry” if she thought it was
“too much.” According to appellant, J.R. responded, “no I just
feel like I’m a hoe.” Appellant said that he and J.R. then
exchanged contact information and J.R. left.
{¶28} The next day, appellant messaged J.R. to ask if he
left his marijuana inside her car. When J.R. did not
immediately respond, he called her. J.R. later messaged
appellant to ask where he thought he left his marijuana.
Appellant, however, eventually found his marijuana in his house
and then texted J.R. to let her know and to apologize for the
previous night.
{¶29} Appellant also testified that he met K.H. while he
urinated in an alley. Appellant claimed that K.H. tapped him on
the shoulder, invited him to her residence, and once at the
residence, he visited and exited the bathroom and K.H. was
“naked and ready to engage in sex.” Appellant stated that he
engaged in “anal, oral, [and] vaginal” sex with K.H.
{¶30} Appellant further stated that, after he engaged in
sexual relations, he used the bathroom. When he again exited
the bathroom and found K.H. asleep, he decided to leave the
Athens App. No. 21CA15 13
residence. Before doing so, he took K.H.’s debit card and cash.
{¶31} On July 23, 2021, after hearing the evidence and
counsels’ arguments, the jury found appellant (1) guilty of the
rape offense that involved J.R., (2) not guilty of an alleged
rape offense that involved K.K., (3) not guilty of the R.C.
2907.02(A)(2) rape offense that involved K.H., and (4) guilty of
the R.C. 2907.02(A)(1)(c) rape offense that involved K.H.
{¶32} The trial court sentenced appellant to serve (1) 11
years in prison for each rape count, with a possible maximum
term of 16 years and 6 months, (2) 12 months for the theft
offense, and (3) 18 months for the identity fraud offense. The
court further ordered the sentences for the rape offenses and
the identity fraud offense to be served consecutively to one
another for a total minimum term of 23 years and 6 months, with
a maximum term of 29 years. This appeal followed.
I
{¶33} In his first assignment of error, appellant asserts
that the trial court erred by denying his Crim.R. 14 motion to
sever the rape charges, which involved three different victims,
into separate trials. In particular, appellant asserts that to
allow the cases to be tried together caused him prejudice
because it (1) permitted the state to introduce inadmissible
other-acts evidence that would not have been admissible if the
cases had been tried separately, (2) impacted his “right to
Athens App. No. 21CA15 14
testify” in that “he would be required to ‘testify as to all of
the allegations against him’ or risk the jurors questioning why
he would testify to some, but not all, of the allegations,” and
(3) included evidence regarding the three encounters that is not
simple or direct.
{¶34} The state argues that the trial court did not abuse
its discretion because it could have introduced evidence
regarding each occurrence as other-acts evidence or,
alternatively, the evidence regarding each crime is simple and
direct.
{¶35} Crim.R. 8(A) specifies that “[t]wo or more offenses
may be charged in the same indictment, information or complaint
in a separate count for each offense if the offenses charged * *
* are of the same or similar character * * *.” The rule further
permits the joinder of offenses that “are based on the same act
or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or
plan, or are part of a course of criminal conduct.”
{¶36} As a general rule, the law favors joinder and the
avoidance of multiple trials. E.g., State v. Gordon, 152 Ohio
St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 18. Joint trials
“conserve[] judicial and prosecutorial time, lessen[] the not
inconsiderable expenses of multiple trials, diminish[]
inconvenience to witnesses, and minimize[] the possibility of
Athens App. No. 21CA15 15
incongruous results in successive trials before different
juries.” State v. Thomas, 61 Ohio St.2d 223, 225, 400 N.E.2d
401 (1980); accord Zafiro v. United States, 506 U.S. 534, 537,
113 S.Ct. 933, 122 L.Ed.2d 317 (1993), quoting Richardson v.
Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)
(joint trials “promote efficiency and ‘serve the interests of
justice by avoiding the scandal and inequity of inconsistent
verdicts’”). If, however, joinder prejudices a defendant,
Crim.R. 14 gives a trial court discretion to sever the trials:
“If it appears that a defendant * * * is prejudiced by a joinder
of offenses * * *, the court shall order an election or separate
trial of counts, * * *, or provide such other relief as justice
requires.”
{¶37} Appellate courts review trial court decisions
regarding a Crim.R. 14 motion to sever criminal charges under
the abuse of discretion standard. State v. Ford, 158 Ohio St.3d
139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 106; State v. Hand, 107
Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. An abuse
of discretion implies that a court’s attitude is unreasonable,
arbitrary or unconscionable. “‘A decision is unreasonable if
there is no sound reasoning process that would support that
decision.’” Ford at ¶ 106, quoting AAAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990). “[A]n ‘arbitrary’ decision is one
Athens App. No. 21CA15 16
made ‘without consideration of or regard for facts [or]
circumstances.’” State v. Beasley, 152 Ohio St.3d 470, 2018-
Ohio-16, 97 N.E.3d 474, ¶ 12, quoting Black’s Law Dictionary 125
(10th Ed.2014), and citing Dayton ex rel. Scandrick v. McGee, 67
Ohio St.2d 356, 359, 423 N.E.2d 1095 (1981), quoting Black’s Law
Dictionary 96 (5th Ed.1979) (“arbitrary” means “‘without
adequate determining principle; * * * not governed by any fixed
rules or standard’”). An unconscionable decision is one
“showing no regard for conscience” or “affronting the sense of
justice, decency, or reasonableness.” Black’s Law Dictionary
(11th ed. 2019). An unconscionable decision also may be
characterized as “[s]hockingly unjust or unfair.” Black’s Law
Dictionary (11th ed. 2019). Moreover, when reviewing for an
abuse of discretion, appellate courts must not substitute their
judgment for that of the trial court. E.g., State v. Grate, 164
Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 187; In re Jane
Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).
{¶38} “A defendant who appeals the denial of relief bears a
heavy burden” to establish that a trial court abused its
discretion. Ford at ¶ 106. To establish that a trial court’s
refusal to sever a trial constitutes an abuse of discretion, a
defendant must establish that holding combined trials prejudiced
the defendant’s rights. Gordon at ¶ 21; State v. Schaim, 65
Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). The test is
Athens App. No. 21CA15 17
whether a joint trial is so manifestly prejudicial that
the trial judge is required to exercise his or her
discretion in only one way — by severing the trial. * *
* A defendant must show clear, manifest and undue
prejudice and violation of a substantive right resulting
from failure to sever.
State v. Schiebel, 55 Ohio St.3d 71, 89, 564 N.E.2d 54 (1990),
quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.
1989). A defendant must provide “the trial court with
sufficient information so that it [can] weigh the considerations
favoring joinder against the defendant’s right to a fair trial.”
State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981),
syllabus; accord Ford at ¶ 106. Consequently, “a trial court
does not abuse its discretion in refusing to grant severance
where the prejudicial aspects of joinder are too general and
speculative.” State v. Payne, 10th Dist. Franklin App. No.
02AP–723, 2003–Ohio–4891.
{¶39} If a defendant presents sufficient information to show
that joining offenses for trial will prejudice the defendant’s
rights, the state can overcome the defendant’s claim of
prejudicial joinder by showing either: (1) the state could have
introduced evidence of the joined offenses as other acts under
Evid.R. 404(B) (the other-acts test); or (2) the “evidence of
each crime joined at trial is simple and direct” (the joinder
test). E.g., State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d
293 (1990). “‘The two tests are disjunctive, so that the
Athens App. No. 21CA15 18
satisfaction of one negates a defendant’s claim of prejudice
without consideration of the other.’” State v. Wright, 4th
Dist. Jackson No. 16CA3, 2017-Ohio-8702, ¶ 51, quoting State v.
Sullivan, 10th Dist. Franklin No. 10AP–997, 2011–Ohio–6384, ¶
23. Accordingly, “‘[i]f the state can meet the joinder test, it
need not meet the stricter ‘other acts’ test.’” State v.
Johnson, 88 Ohio St.3d 95, 109, 723 N.E.2d 1054 (2000), quoting
State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991).
{¶40} Evidence of joined offenses is simple and direct when
(1) the jury is capable of readily separating the proof required
for each offense; (2) the evidence is unlikely to confuse the
jurors, (3) the evidence is straightforward and easy to
understand; (4) the offenses involve different victims,
different incidents, and different witnesses; and (5) little
danger exists that the jury would improperly consider testimony
on one offense as corroborative of the other. State v.
Freeland, 4th Dist. No. 12CA3352, 2015-Ohio-3410, ¶ 14; accord
State v. Pate, 2021-Ohio-1838, 173 N.E.3d 567, ¶ 57 (2nd Dist.);
State v. Wright, 4th Dist. Jackson No. 16CA3, 2017-Ohio-8702, ¶
52; State v. Dantzler, 10th Dist. Franklin No. 14AP-907, 2015-
Ohio-3641, ¶ 23; State v. Clifford, 135 Ohio App.3d 207, 212,
733 N.E.2d 621 (1st Dist.1999). Furthermore, “‘Ohio appellate
courts routinely find no prejudicial joinder where the evidence
is presented in an orderly fashion as to the separate offenses
Athens App. No. 21CA15 19
or victims without significant overlap or conflation of proof.’”
State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138,
¶ 16, quoting State v. Lewis, 6th Dist. No. L-09-1224, 2010-
Ohio-4202, ¶ 33.
{¶41} We additionally note that the purposes of the joinder
test are (1) “to prevent the finder of fact from confusing the
offenses,” State v. Varney, 4th Dist. Hocking No. 07CA18, 2008–
Ohio–5283, ¶ 19, and (2) “to prevent juries from combining the
evidence to convict” the defendant of multiple crimes, “instead
of carefully considering the proof offered for each separate
offense.” State v. Mills, 62 Ohio St.3d 357, 362, 582 N.E.2d
972 (1992).
{¶42} In the case sub judice, we agree with the appellee
that the evidence of each crime joined at trial is simple and
direct. The prosecution presented the evidence that related to
each offense in a simple and direct manner, and separately
presented the circumstances of each individual’s encounter with
appellant. The state first presented J.K.’s testimony and the
testimony of the nurse who conducted her examination. Next, the
state presented K.K’s testimony, the testimony of the nurse who
conducted her examination, and the testimony of a witness with
K.K. during the evening of K.K.’s encounter with appellant.
After the state presented the evidence that surrounded K.K.’s
encounter with appellant, the state presented K.H.’s testimony
Athens App. No. 21CA15 20
and the testimony of the nurse who conducted her examination.
After the state presented testimony from law enforcement
officers involved in the investigations, the state introduced
the forensic evidence involved with the three individuals. All
forensic evidence identified appellant as the contributor of the
DNA recovered during the examinations.
{¶43} After our review, we conclude that the evidence
adduced at trial is not complicated or confusing, and the state
presented the evidence in a logical manner. The evidence is, in
fact, simple and direct. See State v. Kuck, 2016-Ohio-8512, 79
N.E.3d 1164, ¶ 43 (2nd Dist.) (evidence simple and direct when
prosecution first presented evidence that involved one victim
then presented evidence that involved other victim); State v.
Clyde, 6th Dist. Erie No. E–14–006, 2015–Ohio–1859, ¶ 38,
quoting State v. Lewis, 6th Dist. Lucas Nos. L–09–1224, L–09–
1225, 2010–Ohio–4202, ¶ 33 (evidence simple and direct when
“each victim testified as to his or her own experiences with
[the defendant]” and stating joinder not prejudicial when “‘the
evidence is presented in an orderly fashion as to the separate
offenses or victims without significant overlap or conflation of
proof’”); State v. Meeks, 5th Dist. Stark No.2014CA17, 2015–
Ohio–1527, ¶ 99 (evidence simple and direct when state “clearly
laid out [the offenses] for the jury” and “[e]ach victim
testified separately”); State v. Hillman, 10th Dist. Franklin
Athens App. No. 21CA15 21
Nos. 14AP–252 and 14AP–253, 2014–Ohio–5760, 26 N.E.2d 1236, ¶ 40
(evidence simple and direct when incidents “involved a simple
set of facts and a limited number of witnesses whose testimony
was straightforward”); State v. Moshos, 12th Dist. Clinton No.
CA2009–0608, 2010–Ohio–735, ¶ 82 (evidence simple and direct
when each victim “provided a detailed description of her own
unwanted sexual encounters with appellant”); State v. Kissberth,
2nd Dist. Montgomery No. 20500, 2005–Ohio–3059, ¶ 62 (evidence
simple and direct when witnesses “testified only to their own
experiences with” the defendant); State v. Ahmed, 8th Dist.
Cuyahoga No. 84220, 2005–Ohio–2999, ¶ 26 (evidence simple and
direct when “[e]ach victim testified as to the specific facts
giving rise to her separate charges against” the defendant).
{¶44} Furthermore, we find nothing in the record to suggest
that the jury could not separate the evidence with respect to
each offense, or that the jury could have been confused. Most
notably in the case at bar, we emphasize that the jury sifted
through all the evidence and found appellant not guilty of the
rape allegation that involved one victim, K.K., and not guilty
of the R.C. 2907.02(A)(2) rape allegation that involved K.H.
See State v. Sutton, 8th Dist. Cuyahoga No. 102300, 2015-Ohio-
4074, ¶ 25 (“[T]he jury’s not guilty verdicts on several of the
charges demonstrated the jury’s ability to apply the evidence
separately to each offense.”); State v. Evans, 4th Dist. Jackson
Athens App. No. 21CA15 22
No. 10CA1, 2012-Ohio-1562, ¶ 38 (“Because the jury acquitted
[the defendant] of one of the charges, we cannot find that the
jury was confused by the evidence, overwhelmed by the number of
counts, or influenced by the cumulative effect of the
joinder.”); State v. Villa, 2d Dist. Montgomery No. 18868, 2002-
Ohio-2939, ¶ 51 (“[A] jury’s acquittal of a defendant on one or
two charges establishes that the defendant was not prejudiced by
the joinder of the charges against him”). Thus, in light of the
jury’s verdict in the case sub judice, we believe that the
record indicates that the jury considered each of the three
individual’s encounters with appellant separately, and could
appropriately separate the state’s proof with respect to each
charge.
{¶45} Moreover, we do not agree with appellant that the
failure to sever the charges negatively impacted his right to
testify. Appellant argues that, if the trial court separated
the offenses into separate trials, he could have chosen to
testify in some of the trials and remain silent in others
without jeopardizing his defense concerning other offenses.
Appellant thus argues that the failure to separate the offenses
into separate trials forced him to testify regarding all alleged
offenses, even though he may have chosen to remain silent if the
offenses had been separated for trial.
{¶46} To establish that the failure to separate offenses for
Athens App. No. 21CA15 23
trial prejudiced a defendant’s right to testify, a “defendant
must make a convincing showing that he has important testimony
to give concerning one cause, and a strong need to refrain from
testifying in the other.” State v. Roberts, 62 Ohio St.2d 170,
176, 405 N.E.2d 247 (1980). Additionally, the defendant “must
produce sufficient information regarding the nature of the
testimony he wishes to give in the one case, and his reasons for
not wishing to testify in the other, so as to satisfy the court
that his claim of prejudice is genuine.” Id.{¶47} After our review in the case sub judice, we do not
believe appellant presented any convincing reasons to support
his argument that he might have chosen to testify in some of the
cases, but not others. See generally State v. Dean, 146 Ohio
St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 66 (“defendant’s mere
desire to testify to only one count is an insufficient reason to
require severance”). Here, appellant did not establish “a
strong need to refrain from testifying” in one case, and
“important testimony” to give in any other case. Thus,
appellant has not established sufficient prejudice to warrant
separate trials.
{¶48} We further note that courts have determined that any
prejudice that may result from the joinder of offenses is
minimized when a trial court cautions a jury before
deliberations to consider each count, and the evidence
Athens App. No. 21CA15 24
applicable to each count, separately, and to state its findings
as to each count uninfluenced by its verdict on any other
counts. State v. Freeland, 4th Dist. Ross No. 12CA3352, 2015-
Ohio-3410, ¶ 16, citing State v. Gibson, 6th Dist. Lucas No. L–
13–1223 and L–13–1222, 2015–Ohio–1679, ¶ 30. In the case at
bar, we recognize that the trial court instructed the jury to
consider each count, and the evidence applicable to each count,
separately. Specifically, the trial court stated:
The four charges set forth in this case constitute
separate and distinct matters. You must consider each
charge and the evidence applicable to each charge
separately. And you must state your findings as to each
charge uninfluenced by your verdict as to the other
charges. The Defendant may be found guilty or not guilty
of any or all of the charged offenses.
Thus, we believe the trial court’s instruction minimized any
possible prejudice that could result from the joinder of the
offenses for trial.
{¶49} Consequently, after our review in the case sub judice
we do not believe that the trial court abused its discretion by
overruling appellant’s motion to separate the trials. Here, a
review of the record reveals that the evidence is simple and
direct, and the jury could segregate the evidence when it
determined whether the state had established, beyond a
reasonable doubt, that appellant committed the charged offenses.
{¶50} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
Athens App. No. 21CA15 25
II
{¶51} In his second assignment of error, appellant asserts
that the trial court erred by admitting into evidence certain
hearsay statements. In particular, appellant contends that the
court abused its discretion by admitting into evidence the
following messages: (1) Facebook messages that J.R. exchanged
with the hookah bar owner and with her friend; and (2) text
message K.H. sent to her boss.
{¶52} Appellant argues these statements are not relevant and
their prejudicial effect substantially outweigh any probative
value. Appellant further alleges that the statements should not
be admitted into evidence under the present-sense-impression or
excited-utterance exceptions to the hearsay rule because,
appellant reasons, neither J.R. nor K.H. sent the messages at
the time they perceived the events or while under the stress of
excitement. Instead, appellant contends that both J.R. and K.H.
sent their messages after sufficient time passed to reflect upon
events.
A
{¶53} Initially, we observe that trial courts typically
enjoy broad discretion to determine whether a declaration falls
within a hearsay exception. State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97 (hearsay rulings
ordinarily reviewed for abuse-of-discretion unless
Athens App. No. 21CA15 26
constitutional rights implicated under Confrontation Clause);
State v. Dever, 64 Ohio St.3d 401, 410, 596 N.E.2d 436 (1992)
(“trial court has broad discretion to determine whether a
declaration should be admissible as a hearsay exception”).
Appellate courts, therefore, generally will not disturb a trial
court’s evidentiary ruling unless the court “‘has clearly abused
its discretion and the defendant has been materially prejudiced
thereby.’” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-
1594, 63 N.E.3d 93, ¶ 61, quoting State v. Issa, 93 Ohio St.3d
49, 64, 752 N.E.2d 904 (2001). As we noted earlier, an abuse of
discretion implies that a court’s attitude is unreasonable,
arbitrary or unconscionable. E.g., State v. Clinton, 153 Ohio
St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 60 citing Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶54} In the case sub judice, as we explain below, we do not
believe that the trial court abused its discretion by allowing
the state to introduce J.R.’s and K.H.’s out-of-court
statements.
B
{¶55} Appellant argues that the statements in question are
not relevant under Evid.R. 401 and, even if relevant, the
prejudicial effect substantially outweighs any probative value.
We first note, however, that appellant does not point to the
record where he objected to the statements based on relevancy or
Athens App. No. 21CA15 27
prejudicial impact. Instead, as noted in appellant’s brief,
appellant objected to J.R.’s out-of-court statements for the
following reasons: “the messages constituted out-of-court
declarations, an attempt to bolster J.R.’s credibility, and
extrinsic evidence of her character, and also lacked
foundation.” Appellant’s Brief at 13. Moreover, when appellant
objected to K.H.’s testimony, he objected on the basis of
hearsay and further argued it is “duplicative and redundant
extrinsic evidence.” Trial Transcript Day Two at 82. Thus,
because appellant did not argue before the trial court that the
statements are not relevant or are unfairly prejudicial, he may
not raise these issues for the first time on appeal. See
generally State v. Russell, 4th Dist. Ross No. 21CA3750, 2022-
Ohio-1746, ¶ 90 (objecting on one basis does not preserve other
unmentioned grounds); Independence v. Office of the Cuyahoga
Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d
1182, ¶ 30 (may not raise argument on appeal not raised in trial
court).
{¶56} Appellate courts may, however, consider a forfeited
argument using a plain-error analysis. See Risner v. Ohio Dept.
of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278,
2015-Ohio-3731, 42 N.E.3d 718, ¶ 27 (reviewing court has
discretion to consider forfeited constitutional challenges); see
also Hill v. Urbana, 79 Ohio St.3d 130, 133–34, 679 N.E.2d 1109Athens App. No. 21CA15 28
(1997), quoting In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286(1988), syllabus (“‘[e]ven where [forfeiture] is clear,
[appellate] court[s] reserve[] the right to consider
constitutional challenges to the application of statutes in
specific cases of plain error or where the rights and interests
involved may warrant it’”); State v. Pyles, 7th Dist. Mahoning
No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State v. Jones, 7th
Dist. No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (plain-error doctrine
“‘is a wholly discretionary doctrine’”); DeVan v. Cuyahoga Cty.
Bd. of Revision, 8th Dist. Cuyahoga, 2015-Ohio-4279, 45 N.E.3d
661, ¶ 9 (appellate court retains discretion to consider
forfeited argument); see Rosales-Mireles v. United States, ___
U.S. ___, 138 S.Ct. 1897, 1904, 201 L.Ed.2d 376 (2018) (court
has discretion whether to recognize plain error).
{¶57} For the plain error doctrine to apply, the party
claiming error must establish (1) that “‘an error, i.e., a
deviation from a legal rule’” occurred, (2) that the error was
“‘an “obvious” defect in the trial proceedings,’” and (3) that
this obvious error affected substantial rights, i.e., the error
“‘must have affected the outcome of the [proceedings].’” State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶
22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d
1240 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207,
209, 436 N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious
Athens App. No. 21CA15 29
and prejudicial although neither objected to nor affirmatively
waived which, if permitted, would have a material adverse affect
on the character and public confidence in judicial
proceedings”).
{¶58} In the case before us, we do not believe that the
trial court obviously erred by failing to conclude that the
statements are irrelevant, or that the prejudicial effect of the
statements substantially outweighed any probative value.
Consequently, the plain-error doctrine does not apply to
appellant’s relevancy and prejudicial-effect arguments.
C
{¶59} Appellant next argues that the statements constitute
inadmissible hearsay. Appellant disputes the state’s assertion
that the trial court properly admitted the statements under the
excited-utterance exception.
{¶60} Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Evid.R.
801(C). Hearsay is inadmissible in evidence at trial, unless it
falls under an exception to the Rules of Evidence. Evid.R. 802;
State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d
930 (2014), ¶ 129; State v. Lykins, 4th Dist. Adams No.
18CA1079, 2019-Ohio-3316, ¶ 92.
{¶61} Evid.R. 803(2) contains the excited-utterance
Athens App. No. 21CA15 30
exception. This rule permits a trial court to admit a hearsay
statement into evidence “if it relates ‘to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.’” State v. Fry,
125 Ohio St.3d 163, 2010–Ohio–1017, 926 N.E.2d 1239, ¶ 100,
quoting Evid.R. 803(2). A court may admit a hearsay statement
under the excited utterance exception under the following
circumstances:
“(a) there was some occurrence startling enough to
produce a nervous excitement in the declarant, which was
sufficient to still his reflective faculties and thereby
make his statements and declarations the unreflective
and sincere expression of his actual impressions and
beliefs, and thus render his statement of declaration
spontaneous and unreflective,
(b) the statement or declaration, even if not
strictly contemporaneous with its exciting cause, was
made before there had been time for such nervous
excitement to lose a domination over his reflective
faculties so that such domination continued to remain
sufficient to make his statements and declarations the
unreflective and sincere expression of his actual
impressions and beliefs,
(c) the statement or declaration related to such
startling occurrence or the circumstances of such
starling occurrence, and
(d) the declarant had an opportunity to observe
personally the matters asserted in his statement or
declaration.”
State v. Jones, 135 Ohio St.3d 10, 2012–Ohio–5677, 984 N.E.2d
948, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124
N.E.2d 140 (1955), paragraph two of the syllabus.
{¶62} The excited-utterance “‘exception derives its guaranty
of trustworthiness from the fact that declarant is under such
Athens App. No. 21CA15 31
state of emotional shock that his reflective processes have been
stilled. Therefore, statements made under these circumstances
are not likely to be fabricated.’” State v. Taylor, 66 Ohio
St.3d 295, 300, 612 N.E.2d 316 (1993), quoting McCormick,
Section 297 (2d ed. 1972). Additionally, excited utterances
“are considered more trustworthy than hearsay generally
on the dual grounds that, first, the stimulus renders
the declarant incapable of fabrication and, second, the
impression on the declarant’s memory at the time of the
statement is still fresh and intense. Accordingly, Rule
803(2) assumes that excited utterances are not flawed by
lapses of memory or risks of insincerity.”
Id., quoting 1 Weissenberger’s Ohio Evidence (1992), Section
803.16.
{¶63} In the case sub judice, appellant challenges the
state’s assertion that J.R. and K.H. made their statements while
under stress of nervous excitement. Appellant asserts that
because J.R. and K.H. made their statements the day after the
events, the evidence fails to show that nervous excitement
continued until the time of the statements. Instead, appellant
argues that both J.R. and K.H. had sufficient time to reflect
upon events and their statements constitute a narration of
events, rather than excited utterances.
{¶64} The amount of time that elapses “between the statement
and the event is relevant but not dispositive of” whether a
declarant’s statement occurred while still under the stress of
the startling occurrence. Jones at ¶ 168, quoting Taylor, 66
Athens App. No. 21CA15 32
Ohio St.3d at 303; State v. Wallace, 37 Ohio St.3d 87, 90, 524
N.E.2d 466 (1988). In fact, “‘[t]here is no per se amount of
time after which a statement can no longer be considered to be
an excited utterance.’” Jones at ¶ 168, quoting Taylor, 66 Ohio
St.3d at 303. Instead, “‘[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., quoting Taylor, 66 Ohio St.3d at
303; Stough v. Indus. Comm., 142 Ohio St. 446, 52 N.E.2d 992(1944), paragraph one of the syllabus (“A declaration or
statement, to be admissible as part of the res gestae, is not
required to be exactly simultaneous with the primary fact in
controversy, but it must be a spontaneous or an impulsive
declaration or statement and not the mere narration of a past
transaction”).
{¶65} A court that must determine whether a declarant’s
statement occurred while under stress of the startling
occurrence must examine the particular facts of the case and not
“‘“attempt to formulate an inelastic rule delimiting the time
limits within which an oral utterance must be made in order that
it be termed a spontaneous exclamation.”’” Jones at ¶ 168,
quoting Taylor, 66 Ohio St.3d at 303, quoting State v. Duncan,
53 Ohio St.2d 215, 219–220, 373 N.E.2d 1234 (1978).
Furthermore, reviewing courts should affirm a trial court’s
Athens App. No. 21CA15 33
conclusion that a statement fits the excited-utterance exception
when its “‘decision appears to be a reasonable one, even though
the reviewing court, if sitting as a trial court, would have
made a different decision.’” Taylor, 66 Ohio St.3d at 305,
quoting Potter, 162 Ohio St. at 499–500. In Jones, the court
determined the declarant’s statement to be an excited utterance
when the evidence showed that the declarant “was highly upset
and screaming” when she “blurted out” the circumstances of the
startling event (i.e., learning that defendant killed a person).
Id. at ¶ 169. The court concluded that the declarant’s
demeanor, when making the statement, showed that she remained
“under the influence of the startling occurrence when she made
her excited utterance.” Id., citing State v. Wallace, 37 Ohio
St.3d 87, 90–91, 524 N.E.2d 466 (1988) (statement excited
utterance even though 15–hour interval between startling
occurrence and utterance and declarant unconscious for part of
that time), and State v. Baker, 137 Ohio App.3d 628, 649, 739
N.E.2d 819 (12th Dist.2000) (several-hour interval between
startling occurrence and utterance); State v. Huertas, 51 Ohio
St.3d 22, 31, 553 N.E.2d 1058 (1990) (statement excited-
utterance when “declarant was ‘very agitated,’ ‘in serious pain’
and ‘had not calmed down’ from the stress of” startling event,
i.e., a stabbing).
{¶66} However, simply remaining “upset” after a startling
Athens App. No. 21CA15 34
occurrence “does not meet the standard for admissibility under
Evid.R. 803(2).” Taylor, 66 Ohio St.3d at 303. In Taylor, the
circumstances that surrounded the declarant’s statement
suggested he had time to reflect on the event and to give “a
narrative account” of the event. Id. In that case, the
declarant was murdered, but days before his death he spoke with
Robert Adams, a plumber who performed repairs at the residence
of the declarant’s paramour and the defendant’s grandmother,
Viola Thomas. At trial, Adams testified that the declarant told
Adams that he spent the night at Viola’s residence while the
defendant also stayed overnight and, during the night, he
discovered the defendant rummaging through the declarant’s
clothing. When the declarant asked the defendant why, the
defendant told the declarant that he was looking for cigarettes,
but the declarant explained to Adams that he told the defendant
that the defendant knew that the declarant “smoked cigars, not
cigarettes.” Id. at 297. The declarant also informed Adams
that the defendant “was going to do something to [the declarant]
then but [Viola] prevented it.” Id. The declarant also told
Adams that the defendant “had threatened to kill him.” Id. The
declarant further advised Adams that the defendant “was
mistreating [Viola], had broken into her house, and because of
his laziness, was a burden on her.” Id. Later, the defendant
was convicted of multiple offenses and sentenced to death.
Athens App. No. 21CA15 35
{¶67} On appeal to the Ohio Supreme Court, the defendant
asserted that the trial court erred by allowing Adams’s hearsay
testimony and argued that Adams’s testimony did not fit the
excited-utterance exception to the hearsay rule. The supreme
court agreed, and pointed out that the primary dispute concerned
whether the declarant made the statements while still “under the
stress of the startling occurrence.” Id. at 301. The court
noted that the appellate court had concluded that the “startling
occurrence” happened when the declarant found the defendant
searching his pants and when the defendant threatened to kill
the declarant. Id. The appellate court thus determined that
these circumstances placed the declarant “in a state of nervous
excitement” and that the declarant’s “nervous excitement
continued to dominate” until the next day when he “relayed the
events to Adams.” Id. The Ohio Supreme Court, however,
concluded that the appellate court’s conclusion lacked
“evidentiary support.” Id. The court observed that the
declarant made several similar statements to Adams throughout
the course of the day – beginning at 8:00 a.m. and ending
sometime in the afternoon and, during each recounting of the
occurrence, the declarant stated that the defendant threatened
to kill him. In deciding whether the declarant’s statements fit
the excited-utterance exception, the court noted that the record
contained only one reference to the declarant’s “state of
Athens App. No. 21CA15 36
agitation.” Id. at 303. The court pointed out that when Adams
responded to a question about whether the declarant appeared
“real upset,” Adams stated that the declarant “was upset. He
just said he loved [Viola], and if he didn’t care for her he
wouldn’t come around.” Id. The court explained, however, that
“[m]erely being ‘upset’ clearly does not meet the standard for
admissibility under Evid.R. 803(2) because it does not show that
[the declarant’s] statements were not the result of reflective
thought.” Id. The court wrote:
Indeed the balance of Adams’s testimony regarding [the
declarant’s] statements indicates just the opposite:
that [the declarant] was reflecting on the event and
giving a narrative account to Adams which was the result
of his reflective thought. [The declarant] commented on
[the defendant’s] laziness for remaining asleep all day
instead of assisting Adams to reduce [Viola’s repair]
bill. The statements included other grievances [the
declarant] had against [the defendant] which had
occurred long before the “startling occurrence” as well
as conduct by [the defendant] that [the declarant]
considered to be detrimental to * * * Viola Thomas. The
comments also included [the declarant’s] conclusion that
were it not for the fact of his love for Viola Thomas,
he would not continue to visit her home.
Id.
The court concluded that the declarant’s
statements clearly indicate that [he] was reflecting on
the events of the previous night, considering other
aspects of his relationship with [the defendant] and
[the defendant’s] relationship with his grandmother as
well as the effect on [the declarant’s] relationship
with [Viola].
Id.
Athens App. No. 21CA15 37
{¶68} Thus, the Taylor court determined that the evidence
failed to show that the declarant’s “reflective faculties were
still dominated by ‘nervous excitement.’” Id. Consequently,
the declarant’s statement did not fall within the excited-
utterance exception.
{¶69} Appellant contends that Taylor should govern the
outcome in the case sub judice because the circumstances that
surrounded J.R.’s and K.H.’s statements demonstrate that each
had sufficient time to reflect upon the occurrences and their
statements appear to be a narrative account of events rather
than a continuation of nervous excitement. We believe, however,
that the traumatic nature of a sexual assault, and the ensuing
reaction to that assault, may not quickly dissipate and may, in
fact, continue for an extended period of time after the
traumatic event. For that reason, those determinations must be
made on a case-by-case basis in light of the unique facts
present in each case. Courts may recognize that a sexual
assault victim may suffer more than some typical nervous
excitement, but instead suffer from severe, life-changing
trauma. Nevertheless, after our review in the case sub judice,
we conclude that any error that the trial court may have
arguably committed when it admitted the statements in question
constitutes harmless error.
{¶70} Crim.R. 52(A) provides: “Any error, defect,
Athens App. No. 21CA15 38
irregularity, or variance which does not affect substantial
rights shall be disregarded.” An error is harmless when the
error did not impact the verdict, the error was harmless beyond
a reasonable doubt, and after excising the erroneously admitted
evidence, the remaining evidence establishes the defendant’s
guilt beyond a reasonable doubt. State v. Harris, 142 Ohio
St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37. Additionally,
“the admission of hearsay is harmless error where the declarant
was also a witness and examined regarding matters identical to
those contained in the hearsay statements.” State v. Williams,
2d Dist. Montgomery No. 26369, 2016–Ohio–322, ¶ 37.
{¶71} In the case sub judice, J.R. testified and gave direct
testimony that closely mirrored the statements contained in her
Facebook messages. Thus, J.R.’s testimony about her Facebook
messages was cumulative to her in-court statements that
appellant sexually assaulted her. K.H. likewise gave direct
testimony that appellant sexually assaulted her. Her text
message to her boss is simply cumulative to her direct
testimony. Consequently, any arguable error in this regard
constitutes, at most, harmless error. State v. Blanton, 4th
Dist. Adams No. 16CA1031, 2018-Ohio-1275, ¶ 71, citing State v.
L.E.F., 10th Dist. Franklin No. 13AP–1042, 2014–Ohio–4585, ¶ 14
(“[I]nsofar as [victim]’s statements may have been
[inadmissible], we conclude such admission constitutes harmless
Athens App. No. 21CA15 39
error because the statements were cumulative of [victim]’s live
trial testimony, which was subject to cross-examination.”);
State v. Williams, 2d Dist. Montgomery No. 26369, 2016–Ohio–322,
¶ 37 (“the admission of hearsay is harmless error where the
declarant was also a witness and examined regarding matters
identical to those contained in the hearsay statements”); State
v. Deanda, 2014-Ohio-3668, 17 N.E.3d 1232, ¶ 39 (3rd Dist.)
(“[h]earsay statements admitted that are repetitious of
admissible statements and are supported by overwhelming evidence
are not prejudicial”); State v. Stone, 4th Dist. Scioto No.
11CA3462, 2013-Ohio-209, ¶ 14 (victim’s hearsay testimony that
person assaulted her harmless error when victim presented in-
court testimony of sexual assault); see State v. Williams, 38
Ohio St.3d 346, 350, 528 N.E.2d 910 (1988) (admission of hearsay
that was cumulative testimony constitutes harmless error).
{¶72} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶73} In his third assignment of error, appellant asserts
that the trial court erred by admitting (1) J.R.’s and K.H.’s
sexual-assault medical records and evidence collection kits, and
(2) their respective nurses’ testimony regarding the statements
that each individual made during the sexual-assault
examinations. Appellant contends that (1) this evidence does
Athens App. No. 21CA15 40
not fall within the Evid.R. 803(4) medical-diagnosis-and-
treatment exception, and (2) the reading of the narration of the
events constitutes the needless presentation of cumulative
evidence under Evid.R. 403(B).
Athens App. No. 21CA15 41
A
{¶74} Once again, we note that the admission of evidence
generally falls within a trial court’s sound discretion and an
appellate court will not reverse a trial court’s evidentiary
decision absent an abuse of that discretion.
B
{¶75} Evid.R. 803(4) contains a hearsay exception for
“[s]tatements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.”
{¶76} The hearsay rules except statements made for the
purpose of medical diagnosis or treatment due to the inherent
reliability underlying the nature of those statements.
[A] fundamental assumption underlying the medical-
treatment exception is that that particular hearsay is
reliable. Dever, 64 Ohio St.3d at 410–411, 596 N.E.2d
436. “[The] exception is premised on the theory that a
patient’s statements to her physician are likely to be
particularly reliable,” United States v. Tome (C.A.10,
1995), 61 F.3d 1446, 1449, and “carr[y] special
guarantees of credibility,” White v. Illinois (1992),
502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848.
State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d
944, ¶ 39.
{¶77} Additionally, statements made for the purpose of
Athens App. No. 21CA15 42
medical diagnosis and treatment are considered reliable because
“‘facts reliable enough to be relied on in reaching a diagnosis
have sufficient trustworthiness to satisfy hearsay concerns.’”
State v. Dever, 64 Ohio St.3d 401, 411, 596 N.E.2d 436 (1992),
quoting 2 McCormick on Evidence (4th Ed.1992) 250; accord
Muttart at ¶ 41. Thus, “[i]f a statement is made for purposes
of diagnosis or treatment, it is admissible pursuant to Evid.R.
803(4).” Muttart at ¶ 34, quoting Dever, 64 Ohio St.3d at 414.
{¶78} In general, statements made while a medical
professional obtains a victim’s history, such as whether a
defendant’s penis entered the victim’s vagina, generally fall
within the medical-diagnosis-and-treatment exception. State v.
Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶
37-38. For example, statements that identify a defendant as the
perpetrator of a crime, where the defendant touched the victim,
and how sexual contact occurred ordinarily are statements
obtained for medical diagnosis and treatment. State v. Felts,
2016-Ohio-2755, 52 N.E.3d 1223 (4th Dist.), ¶ 39, citing Arnold
at ¶ 32, 38 (“information regarding the identity of the
perpetrator, the type of abuse alleged, and the time frame of
the abuse allows the doctor or nurse to determine whether to
test the child for sexually transmitted infections”); State v.
Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 27,
quoting In re D.L., 8th Dist. Cuyahoga No. 84643, 2005-Ohio-
Athens App. No. 21CA15 43
2320, ¶ 21 (“‘courts have consistently found that a description
of the encounter and identification of the perpetrator are
within scope of statements for medical treatment and
diagnosis’”); State v. Williams, 1st Dist. Hamilton No. C–
140199, 2015-Ohio-3968, ¶ 31 (“Obtaining a thorough history
regarding the causation and nature of the injury is an important
component of medical diagnosis and treatment”); State v. Taylor,
8th Dist. Cuyahoga No. 101704, 2015-Ohio-2513, ¶ 44 (“statements
regarding the identity of the perpetrator, the type of abuse
alleged, the time frame of the abuse, and the identification of
the areas where the child had been touched, were all for medical
diagnosis”).
{¶79} On the other hand, statements merely serve an
investigative purpose when they do not help the treatment
provider diagnose a medical condition or recommend treatment.
Thus, a rape victim’s statement that the defendant “shut and
locked the bedroom door before raping her; her descriptions of
where her mother and brother were while she was in the bedroom
with [the defendant], of [the defendant]’s boxer shorts, of him
removing them, and of what [the defendant]’s “pee-pee” looked
like; and her statement that [the defendant] removed her
underwear” “likely were not necessary for medical diagnosis or
treatment.” Arnold at ¶ 34.
{¶80} In the case sub judice, we first point out that
Athens App. No. 21CA15 44
appellant objected before the state introduced each nurse’s
testimony and each medical kit. When he objected, however,
appellant broadly asserted that the nurses’ testimony and
medical kits are inadmissible under Evid.R. 803(4).
Additionally, appellant did not object when the nurses read each
individual’s narrative statement, and did not attempt to
distinguish between statements contained within those narratives
that may have been made for medical diagnosis and treatment and
those solely for investigative purpose.
{¶81} We observe that for each assignment of error presented
for review, an appellant must identify the specific parts of the
record where the alleged error occurred. See App.R. 16(A)(7)
(brief must include “[a]n argument containing the contentions of
the appellant with respect to each assignment of error presented
for review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record
on which appellant relies”). “This rule is designed ‘to aid the
reviewing court in determining whether any reversible error
occurred in the lower court by having the complaining party
specify the exact location(s) where such a determination can be
made.’” Mayfair Village Condominium Owners Assn. v. Grynko, 8th
Dist. Cuyahoga No. 99264, 2013-Ohio-2100, ¶ 6, quoting Hildreth
Mfg. v. Semco, Inc., 151 Ohio App.3d 693, 2003-Ohio-741, 785
N.E.2d 774, ¶ 32 (3d Dist.). Consequently, an appellate court
Athens App. No. 21CA15 45
may disregard an assignment of error when an appellant fails to
identify the relevant portions of the record upon which an
assignment of error is based. See App.R. 12(A)(2) (“The court
may disregard an assignment of error presented for review if the
party raising it fails to identify in the record the error on
which the assignment of error is based * * *.”); see also
Mayfair Village Condominium Owners Assn. at ¶ 6 (appellate court
“not obliged to scour the record in search of evidence to
support an appellant's assignment of error.”), citing Nob Hill
E. Condominium Assn. v. Grundstein, 8th Dist. Cuyahoga No.
95919, 2011-Ohio-2552, ¶ 11.
{¶82} In the case before us, appellant cites to parts of the
record that contain broad objections to the nurses’ testimony
and medical kits. Appellant does not, however, cite to the
location that contains objections to particular statements that
he believes served an investigative purpose, rather than an
Evid.R. 803(4) medical-diagnosis-or-treatment purpose. Without
citation to the specific parts of the nurses’ testimony that
appellant believes fall outside of the Evid.R. 803(4) medical-
diagnosis-or-treatment exception, we need not parse the
testimony to determine whether the trial court properly admitted
each statement contained in the narratives.
{¶83} Additionally, although we recognize that appellant’s
reply brief points to specific, objectionable statements,
Athens App. No. 21CA15 46
appellant did not raise these same specific objections during
the trial court proceedings. See State v. S.A.A., 10th Dist.
Franklin No. 17AP-685, 2020-Ohio-4650, ¶ 20 (declining to review
argument regarding admissibility of statements contained in
videotaped interview when appellant “did not specifically
outline the same questions before the trial court” and instead
“argued generally at trial that the entire video interviews were
for purposes of forensic investigation”). We therefore decline
to review them for the first time on appeal.
{¶84} Moreover, to the extent that appellant may have lodged
a continuing objection to the evidence, we observe that “[t]he
purpose of a continuing or standing objection is to relieve a
party who has unsuccessfully raised an objection from having to
repeat the objection every time ‘testimony of the same class’ is
offered.” State ex rel. Holwadel v. Hamilton Cty. Bd. of
Elections, 144 Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, ¶
48, quoting Brady v. Stafford, 115 Ohio St. 67, 152 N.E. 188(1926), paragraph two of the syllabus. A single continuing
objection is not, however, sufficient to preserve objections to
multiple pieces of evidence when the admissibility
determinations turn on different facts. State v. Henness, 79
Ohio St.3d 53, 59, 679 N.E.2d 686 (1997) (“[t]he existence of
the marital privilege turns on the specific circumstances
surrounding each allegedly privileged communication, e.g.,
Athens App. No. 21CA15 47
whether a third party was present” and thus, continuing
objection insufficient to preserve error). See generally State
v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶
41 (same interview or interrogation might contain both
admissible and inadmissible statements).
{¶85} Thus, even if the record suggests that appellant may
have raised a continuing objection to the nurses’ testimony,
this continuing objection, in our view, did not sufficiently
preserve objections to each statement when the admissibility of
each statement required the trial court to separately analyze
whether the statement was made for medical diagnosis or
treatment, or whether the statement was made for investigative
purposes. Importantly, appellant does not cite any authority to
require the wholesale exclusion of a nurse’s testimony when it
contains a mix of statements made for medical diagnosis or
treatment, and statements arguably made for investigative
purposes.
{¶86} Therefore, for all of the foregoing reasons, we do not
believe that appellant properly preserved his Evid.R. 803(4)
objections to the nurses’ testimony. However, even if he had
properly preserved those objections, we believe that any
arguable error the trial court committed in the admission of
that testimony into evidence, to the extent that it relayed
statements made for an investigative purpose, constitutes
Athens App. No. 21CA15 48
harmless error. Here, the nurses’ testimony simply repeated
what each individual victim stated during their direct in-court
testimony at trial: “[a]ny error in the admission of hearsay is
generally harmless where the declarant of the hearsay statement
is cross-examined on the same matters and the seemingly
erroneous evidence is cumulative in nature.” In re M.E.G., 10th
Dist. Franklin Nos. 06AP-1256, 06AP-1257, 06AP-1258, 06AP-1263,
06AP-1264, and 06AP-1265, 2007-Ohio-4308, ¶ 32; accord State v.
Bender, 3rd Dist. Union No. 14-19-22, 2020-Ohio-722, ¶ 17.
{¶87} In the case at bar, the individuals who were the
subject of the nurses’ testimony testified at trial in open
court, and subject to cross-examination. Bender at ¶ 17; State
v. Clegg, 5th Dist. Delaware No. 20 CAA 09 0035, 2021-Ohio-2736,
¶ 59. The jury had the opportunity to view the witnesses and to
assess their credibility. See Bender at ¶ 17; State v. Ceron,
8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 61.
{¶88} Thus, we believe that any arguable error that may have
occurred in this case concerning the testimony of the nurses and
the medical records constitutes harmless error that we must
disregard.
C
{¶89} Appellant further contends that the testimony of the
nurses was needlessly cumulative.
{¶90} Evid.R. 403(B) provides: “Although relevant, evidence
Athens App. No. 21CA15 49
may be excluded if its probative value is substantially
outweighed by considerations of undue delay, or needless
presentation of cumulative evidence.” We note that “Evid.R.
403(B) does not require exclusion of cumulative evidence. The
court has discretion to admit or exclude it.” State v.
Campbell, 69 Ohio St.3d 38, 51, 630 N.E.2d 339 (1994). “The
mere fact that evidence is repetitive will not be considered
reversible error unless the defendant was unfairly prejudiced
thereby.” State v. Baker, 2d Dist. Montgomery No. 23933, 2011-
Ohio-1820, ¶ 16, citing State v. Smith, 80 Ohio St.3d 89, 108-
109, 684 N.E.2d 668 (1997). “The pertinent question is whether
the evidence was unfairly prejudicial to the defendant, not
whether it was unfavorable to him.” Id.{¶91} In the case sub judice, we do not believe that the
trial court abused its discretion by allowing the state to
introduce cumulative evidence. Nothing in the record shows that
the cumulative evidence unfairly prejudiced appellant. Each
witness testified about their personal encounter with a victim
and related to the trier of fact the nature of that encounter.
D
{¶92} Next, appellant argues that the nurses’ testimony is
improper because it bolstered J.R.’s and K.H.’s testimony.
Appellant does not, however, cite any authority that prevents a
party from using another witness’s testimony to bolster a
Athens App. No. 21CA15 50
complaining witness’s testimony. In fact, courts have held that
“‘[a] party may introduce testimony to “bolster” or corroborate
another witness’s testimony as long as the testimony is relevant
and not objectionable on specific evidentiary grounds.’” State
v. Watkins, 10th Dist. Franklin No. 12AP-345, 2013-Ohio-804, ¶
22, quoting State v. Hurst, 10th Dist. Franklin No. 98AP–1549
(Mar. 7, 2000); State v. Culp, 9th Dist. Summit No. 26188, 2012–
Ohio–5395, ¶ 30 (evidence corroborating victim’s testimony is
relevant to the victim’s credibility). We therefore reject
appellant’s argument that the trial court erred by admitting the
nurses’ testimony on the basis that it improperly bolstered the
complaining witnesses’ testimony. Here, the witness related the
factual nature of their examination and did not offer opinion
about a victim’s veracity.
{¶93} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error.
IV
{¶94} In his fourth assignment of error, appellant asserts
that the trial court erred by allowing the state to introduce
other-acts evidence for the two offenses (theft and identity
fraud) to which he pled guilty. Appellant asserts that the
evidence was not relevant to prove an element in dispute and
that this evidence is needlessly cumulative.
Athens App. No. 21CA15 51
Evid.R. 404(B)2 provides:
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.
R.C. 2945.59 similarly states:
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 thereto, notwithstanding that such proof may
show or tend to show the commission of another crime by
the defendant.
2
On July 1, 2022, Evid.R. 404(B) was amended to read as follows:
(B) Other Crimes, Wrongs or Acts.
(1) Prohibited Uses. Evidence of any other crime,
wrong or act is not admissible to prove a person’s
character in order to show that on a particular occasion
the person acted in accordance with the character.
(2) Permitted Uses; Notice. This evidence may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. The
proponent of evidence to be offered under this rule
shall:
(a) provide reasonable notice of any such evidence
the proponent intends to introduce at trial so that an
opposing party may have a fair opportunity to meet it;
(b) articulate in the notice the permitted purpose
for which the proponent intends to offer the evidence,
and the reasoning that supports the purpose; and
(c) do so in writing in advance of trial, or in any
form during trial if the court, for good cause, excuses
lack of pretrial notice.
Athens App. No. 21CA15 52
{¶95} Evid.R. 404(B) and R.C. 2945.59 “preclude[] the
admission of evidence of other crimes, wrongs, or acts offered
to prove the character of an accused in order to show that the
accused acted in conformity therewith, but it does not preclude
admission of that evidence for other purposes.” State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278,
syllabus. In other words, other-acts evidence is not admissible
when the sole purpose of the evidence “is to show the accused’s
propensity or inclination to commit crime.” State v. Hartman,
161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 20,
quoting State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720(1975), citing 1 Underhill’s Criminal Evidence, Section 205, at
595 (6th Ed.1973). Other-acts evidence is admissible, however,
so long as the evidence relates to a permissible purpose such as
“motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Evid.R. 404(B).
Accordingly, other-acts evidence is admissible when (1) the
evidence is relevant, (2) the evidence is not used “to prove a
person’s character to show conduct in conformity,” (3) the
evidence is offered “for a legitimate other purpose,” and (4)
the danger of unfair prejudice does not substantially outweigh
the probative value of the evidence. State v. Graham, 164 Ohio
St.3d 187, 2020-Ohio-6700, 172 N.E.2d 841, ¶ 72, citing State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶
Athens App. No. 21CA15 53
20.
{¶96} Appellate courts review a trial court’s determination
regarding whether other-acts evidence constitutes impermissible
propensity evidence or permissible nonpropensity evidence using
the de-novo standard of review. Hartman at ¶ 22, citing
Leonard, The New Wigmore: Evidence of Other Misconduct and
Similar Events, Section 4.10 (2d Ed.2019) (“[d]etermining
whether the evidence is offered for an impermissible purpose
does not involve the exercise of discretion * * *, an appellate
court should scrutinize the [trial court’s] finding under a de
novo standard” of review); State v. Ludwick, 4th Dist. Highland
No. 21CA17, 2022-Ohio-2609, ¶ 18; State v. McDaniel, 2021-Ohio-
724, 168 N.E.3d 910, ¶ 17 (1st Dist.). If the proffered other-
acts evidence is for a permissible purpose, trial courts have
discretion, under Evid.R. 403(A), to determine whether the
danger of unfair prejudice substantially outweighs the probative
value of the evidence. Hartman at ¶ 30; Williams at ¶ 17
(Evid.R. 404(B) affords courts discretion to allow other-acts
evidence when offered for a permissible purpose). Appellate
courts thus review a trial court’s decision under Evid.R. 403
for an abuse of discretion. Hartman at ¶ 30; State v. Graham,
164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 72;
Ludwick at ¶ 18. Other-acts evidence is relevant if it tends
“to make the existence of any fact that is of consequence to the
Athens App. No. 21CA15 54
determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401. Propensity
evidence “almost always * * * will have some relevance.” State
v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651,
¶ 25. In fact, propensity “evidence is excluded ‘not because it
has no appreciable probative value but because it has too
much.’” Id., quoting 1A Wigmore, Evidence, Section 58.2, at 1212
(Tillers Rev.1983). The relevancy inquiry in Evid.R. 404(B)
cases thus does not focus upon “whether the other-acts evidence
is relevant to the ultimate determination of guilt.” Id. at ¶
26. Instead, courts must determine whether the evidence is
relevant to a “‘purpose other than the person’s character or
propensity to behave in a certain way.’” Id., quoting United
States v. Gomez, 763 F.3d 845, 860 (7th Cir.2014).
{¶97} Both Evid.R. 404(B) and R.C. 2945.59 permit other-acts
evidence when the evidence is relevant to establishing a
defendant’s intent. Other-acts evidence is relevant to
establish intent if the evidence tends “‘[t]o show, by similar
acts or incidents, that the act in question was not performed
inadvertently, accidentally, involuntarily, or without guilty
knowledge.’” Id. at ¶ 52, quoting McCormick, Evidence, Section
190, at 804 (4th Ed.1994). “[T]he other-acts evidence ‘must be
so related to the crime charged in time or circumstances that
evidence of the other acts is significantly useful in showing
Athens App. No. 21CA15 55
the defendant’s intent in connection with the crime charged.’”
Id. at ¶ 58, quoting 1 Wharton’s Criminal Evidence at Section
4:31. The evidence “‘“must have such a temporal, modal and
situational relationship with the acts constituting the crime
charged”’” that it “‘“discloses purposeful action in the
commission of the offense in question.”’” Id. at ¶ 61, quoting
State v. Gardner, 59 Ohio St.2d 14, 20, 391 N.E.2d 337 (1979),
quoting State v. Burson, 38 Ohio St.2d 157, 159, 311 N.E.2d 526(1974).
{¶98} Additionally, evidence of other acts is admissible
when “the challenged evidence plays an integral part in
explaining the sequence of events and is necessary to give a
complete picture of the alleged crime.” State v. Thompson, 66Ohio St.2d 496, 498, 422 N.E.2d 855 (1981); accord State v.
Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 140;
Hartman at ¶ 41. Furthermore, evidence regarding other acts
“may be presented when ‘they are so blended or connected with
the one on trial as that proof of one incidentally involves the
other; or explains the circumstances thereof; or tends logically
to prove any element of the crime charged.’” State v.
Wilkinson, 64 Ohio St.2d 308, 317, 18 O.O.3d 482, 415 N.E.2d
261, 269 (1980), quoting United States v. Turner, 423 F.2d 481,
483-84 (C.A.7, 1970) (citation omitted).
{¶99} In the case at bar, we believe that evidence regarding
Athens App. No. 21CA15 56
appellant’s other contemporaneous acts was relevant to establish
appellant’s intent by disproving his claim that his sexual
encounters with the victim was consensual. See State v. Gardner,
59 Ohio St.2d 14, 20, 13 O.O.3d 8, 391 N.E.2d 337 (1979) (when
defendant claims sexual encounter consensual, defendant’s intent
is a material issue). The evidence that appellant took the
victim’s debit card immediately after the rape, then later used
the card at multiple locations, helped to demonstrate
appellant’s guilty knowledge and negate his consent defense.
The other acts evidence shared a temporal and situational
relationship with K.H.’s rape so as to disclose his purposeful
action in committing rape. This evidence tended to make it more
probable that appellant did not commit rape inadvertently,
accidentally, involuntarily, or without guilty knowledge.
{¶100} Moreover, the other-acts evidence constituted an
integral component to help to explain the sequence of events and
necessary to provide the trier of fact with a complete picture
of the rape – the evidence flowed directly and immediately from
appellant’s interaction with K.H. and helped to explain the
entire sequence of events.
{¶101} Additionally, even if we accept for purposes of
argument that the trial court erred by allowing the state to
introduce evidence concerning appellant’s theft and identity-
fraud offenses, we believe that any such error is harmless error
Athens App. No. 21CA15 57
that we must disregard. State v. Morris, 141 Ohio St.3d 399,
2014-Ohio-5052, 24 N.E.3d 1153, ¶ 32 (“[A]n improper evidentiary
admission under Evid.R. 404(B) may be deemed harmless error on
review when, after the tainted evidence is removed, the
remaining evidence is overwhelming”). In the case sub judice,
even without the evidence regarding appellant’s theft and
identity-fraud offenses, the record contains overwhelming first-
person accounts and evidence that appellant raped J.R. and K.H.
Both victims testified at trial. J.R. stated that appellant
engaged in unwanted sexual contact with her and that she told
appellant, “no.” K.H. testified that due to excessive alcohol
consumption she had very little recollection of the encounter,
but when she awoke the next day, she discovered that she had
been raped. Appellant did not deny sexual encounters with both
J.R. and K.H. Instead, appellant asserted that they engaged in
consensual sex. As we further explain in appellant’s sixth
assignment of error, we believe that the state presented ample
evidence to establish appellant’s guilt beyond a reasonable
doubt. Moreover, we again point out that after hearing the
evidence the jury found appellant not guilty of one of the three
charged rape offenses. Thus, any arguable error that stemmed
from the admission of evidence that appellant stole K.H.’s debit
card and then used it to purchase items that totaled
approximately $1,500 did not impact the jury’s verdict. We do
Athens App. No. 21CA15 58
not believe that any danger exists that the jury convicted
appellant of the two counts of rape based upon evidence that he
stole K.H.’s debit card and made purchases. Consequently, any
error did not affect appellant’s substantial rights and is
harmless error that we must disregard. See Crim.R. 52(A) (“Any
error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded”).
{¶102} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error.
V
{¶103} In his fifth assignment of error, appellant asserts
that the trial court erred by admitting into evidence records
from the Bureau of Criminal Investigation. Appellant points out
that at trial, he objected to admitting the reports into
evidence because the reports “included boilerplate language
suggest[ing] the rape offenses had occurred and each accuser was
in fact a ‘victim.’” Appellant claims that the use of the term
“victim” is unfairly prejudicial and bolstered the testimony of
J.R. and K.H. Appellant additionally objected at trial because
the reports are “no different than giving jurors a police report
that tracks what a witness told a police officer.” On appeal,
appellant argues that the “BCI employees certainly qualified as
law enforcement personnel” under Evid.R. 803(8) and, thus, the
rule should preclude admitting the reports into evidence.
Athens App. No. 21CA15 59
A
{¶104} Once again, we note that the admission of evidence at
trial generally falls within the trial court’s sound discretion,
and an appellate court will not reverse a court’s evidentiary
decision absent an abuse of that discretion. In State v.
Madden, 2017-Ohio-8894, 100 N.E.3d 1203, (10th Dist.), the court
rejected the argument that the use of the word “victim” during a
criminal trial constitutes prejudicial error when (1) “the fact
of an assault was not in dispute,” (2) the “witnesses used the
term ‘victim’ as synonymous with complainant,” (3) the witnesses
“did not express an opinion as to appellant’s guilt,” and (4)
the prosecutor did not “intentionally [seek] to elicit
prejudicial testimony from the witnesses at issue.” Id. at ¶
34. In reaching its decision, the court explained:
This court has noted that “[a] ‘victim’ is a ‘person
harmed by a crime, tort, or other wrong.’” State v.
Morock, 10th Dist. No. 14AP-559, 2015-Ohio-3152, ¶ 25,
citing Black’s Law Dictionary (10th Ed.2014).
Similarly, it has been held that use of the term
“‘victim’ is not the same as expressing an opinion that
the defendant was guilty of a crime; the term ‘victim
applies to anyone who suffers either as a result of
ruthless design or incidentally or accidentally.’”
State v. Chism, 130 Wash.App. 1054, Wash.App. No. 54895–
6–I (Dec. 27, 2005), quoting Webster’s Third New
International Dictionary 2550 (1993).
Courts in other jurisdictions have held that “[t]he
term ‘victim’ is used appropriately during trial when
there is no doubt that a crime was committed and simply
the identity of the perpetrator is in issue.” Jackson
v. State, 600 A.2d 21, 24 (Del.1991). See also In re
Welfare of P.J.K., Minn.App. No. A15–0115 (Sept. 8,
2015) (where issue at trial was not whether an armed
Athens App. No. 21CA15 60
robbery actually occurred but, rather, whether the state
could prove beyond a reasonable doubt who committed it,
occasional reference to individual as “victim” was
“accurate and not prejudicial”).
As noted above, most of the references to “victim”
in the present case are in the context of law enforcement
officers recounting their role in the investigation.
Courts have observed that “the term ‘victim,’ to law
enforcement officers, is a term of art synonymous with
‘complaining witness.’” Jackson at 24–25. Thus, courts
have found a lack of prejudice where a law enforcement
officer uses the term “victim” in such a manner. See
State v. Frey, Iowa App. No. 7–205/06–1081, 2007 WL
1827423 (June 27, 2007) (defense counsel not ineffective
in failing to object to use of the term victim where
detective “used the term ‘victim’ as synonymous with the
term ‘complainant’”); see also State v. Wigg, 179 Vt.
65, 70, 889 A.2d 233 (2005) (finding harmless error where
a law enforcement officer uses the term victim as
synonymous with complainant and “never expressed an
opinion” that the defendant was guilty); State v.
Harvey, 167 Wash.App. 1026, Wash.App. No. 29513–3–III
(Mar. 29, 2012) (questions by prosecutor that elicited
police officers to refer to individuals shot as
“victims” not improper; “referring to the men who died
from gunshot wounds as victims does not amount to opinion
testimony”).
Appellant relies on this court’s decision in State
v. Almedom, 10th Dist. No. 15AP-852, 2016-Ohio-1553, in
support of his contention that reversible error
occurred. That case, however, is distinguishable from
the facts of this case. At issue in Almedom was whether
a crime took place, i.e., whether the defendant had
sexual conduct with girls under the age of 13. Further,
under the facts of Almedom, “the trial court judge
consistently referred to the girls as ‘victims,’” which
this court deemed analogous to “telling the members of
the jury that the girls were truthful when they claimed
that sexual abuse occurred.” Id. at ¶ 2. By contrast,
in the present case there was no dispute that A.S. was
physically assaulted and seriously injured, and the
record contains no victim references by the trial court.
Id. at ¶ 30-33.
{¶105} After our review in the case sub judice, we agree with
Athens App. No. 21CA15 61
the Madden court’s holding and rationale. Applying this
rationale to the instant case, we do not believe that use of the
word “victim” on BCI forms unfairly prejudiced appellant.
First, no one disputed that sexual encounters had, in fact,
occurred between appellant and the three individuals. Second,
the forms “used the term ‘victim’ as synonymous with
complainant.” Third, appellant did not point to anything in the
record to suggest that any witness used the term “victim” to
“express an opinion as to appellant’s guilt.” Last, the record
does not indicate that the prosecutor “intentionally sought to
elicit prejudicial testimony” regarding the three individuals’
status as “victims.” Id. at ¶ 34.
{¶106} Consequently, we do not agree with appellant that the
trial court abused its discretion by admitting the BCI reports
into evidence.
B
{¶107} Appellant next asserts that the trial court should
have excluded the BCI reports because they do not fall within an
exception to the hearsay rule. Appellant contends that under
Evid.R. 803(8), the BCI reports are inadmissible as “matters
observed by police officers and other law enforcement
personnel.” The state, however, argues that the BCI reports are
business records and admissible under Evid.R. 803(6).
Evid.R. 803(8) provides as follows:
Athens App. No. 21CA15 62
Records, reports, statements, or data compilations,
in any form, of public offices or agencies, setting forth
(a) the activities of the office or agency, or (b)
matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police
officers and other law enforcement personnel, unless
offered by defendant, unless the sources of information
or other circumstances indicate lack of trustworthiness.
{¶108} Thus, “[i]n criminal cases, Evid.R. 803(8)(b) excludes
from the public-records-and-reports exception to hearsay police
reports that ‘recite an officer’s observations of criminal
activities or observations made as part of an investigation of
criminal activities.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 111, quoting State v. Ward, 15
Ohio St.3d 355, 358, 474 N.E.2d 300 (1984).
{¶109} In the case sub judice, appellant has summarily
asserted that the BCI reports fall within the Evid.R. 803(8)(b)
exclusion, but does not cite authority to support his
proposition. Under App.R. 16(A)(7), an appellant’s brief shall
include “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record
on which appellant relies.” Appellate courts should not perform
independent research to create an argument for a litigant.
State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266,
Athens App. No. 21CA15 63
2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring
in part and dissenting in part), quoting Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983) (“‘“appellate courts do not sit
as self-directed boards of legal inquiry and research, but
[preside] essentially as arbiters of legal questions presented
and argued by the parties before them”’”); accord State v.
Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 57.
“[W]e cannot write a party’s brief, pronounce ourselves
convinced by it, and so rule in the party’s favor. That’s not
how an adversarial system of adjudication works.” Xue Juan Chen
v. Holder, 737 F.3d 1084, 1085 (7th Cir. 2013).
{¶110} In view of the absence of authority to support
appellant’s position, we reject his argument that the BCI
reports are inadmissible under Evid.R. 803(8)(b). See In re
Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-
Ohio-2638, 951 N.E.2d 751, ¶ 14 (failure to cite legal authority
or present argument that a legal authority applies is grounds to
reject a claim); Robinette v. Bryant, 4th Dist. Lawrence No.
14CA28, 2015-Ohio-119, ¶ 33 (“It is within our discretion to
disregard any assignment of error that fails to present any
citations to cases or statutes in support”).
C
{¶111} Appellant next contends that “the probative value of
the reports was substantially outweighed by the danger of unfair
Athens App. No. 21CA15 64
prejudice, confusion of the issues, or of misleading the jury.”
He asserts that the reports “bolstered” the accusers’ testimony
by labeling them “victims” and that the reports “were needlessly
cumulative” when the BCI forensic scientists’ trial testimony
already reported that the DNA analysis matched appellant.
{¶112} We again note that because appellant does not point to
the place in the record where he raised specific objections, he
has forfeited the right to raise this issue on appeal.
Regardless, we do not believe that the trial court erred by
admitting the BCI reports.
{¶113} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fifth assignment of error.
VI
{¶114} In his sixth assignment of error, appellant asserts
that sufficient evidence does not support his conviction and his
conviction is against the manifest weight of the evidence.
A
{¶115} Initially, we observe that “sufficiency” and “manifest
weight” present two distinct legal concepts. Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶
23 (“sufficiency of the evidence is quantitatively and
qualitatively different from the weight of the evidence”); State
v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),
syllabus. A claim of insufficient evidence invokes a due
Athens App. No. 21CA15 65
process concern and raises the question whether the evidence is
legally sufficient to support the verdict as a matter of law.
Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency
of the evidence, our inquiry focuses primarily upon the adequacy
of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable
doubt. Id. at syllabus. The standard of review is whether,
after viewing the probative evidence and inferences reasonably
drawn therefrom in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. E.g.,
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574
N.E.2d 492 (1991). Furthermore, a reviewing court is not to
assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would
support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook,
J., concurring).
{¶116} Thus, when reviewing a sufficiency-of-the-evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. E.g., State v. Hill, 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio
St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will
not overturn a conviction on a sufficiency-of-the-evidence claim
Athens App. No. 21CA15 66
unless reasonable minds could not reach the conclusion that the
trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162,
749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,
739 N.E.2d 749 (2001).
{¶117} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St.3d
at 387. “The question to be answered when a manifest weight
issue is raised is whether ‘there is substantial evidence upon
which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’” State v. Leonard,
104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting
State v. Getsy, 84 Ohio St.3d 180, 193–194, 702 N.E.2d 866(1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132(1978), syllabus. A court that considers a manifest weight
challenge must “‘review the entire record, weigh the evidence
and all reasonable inferences, and consider the credibility of
witnesses.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-
493, 108 N.E.3d 1028, ¶ 208, quoting State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. Reviewing
courts must also bear in mind, however, that credibility
generally is an issue for the trier of fact to resolve. State
v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.
Athens App. No. 21CA15 67
Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31.
“‘Because the trier of fact sees and hears the witnesses and is
particularly competent to decide “whether, and to what extent,
to credit the testimony of particular witnesses,” we must afford
substantial deference to its determinations of credibility.’”
Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929
N.E.2d 1047, ¶ 20, quoting State v. Konya, 2d Dist. Montgomery
No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2d
Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley
court explained:
“‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment must be made in favor of the
judgment and the finding of facts. * * *
If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it
that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict
and judgment.’”
Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 60, at 191–192
(1978). Thus, an appellate court will leave the issues of
evidence weight and witness credibility to the fact finder, as
long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-
1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948,
2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier
Athens App. No. 21CA15 68
of fact has some factual and rational basis for its
determination of credibility and weight”).
{¶118} Accordingly, if the prosecution presented substantial
credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements
of the offense had been established, the judgment of conviction
is not against the manifest weight of the evidence. E.g., Eley;
accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,
quoting Black’s Law Dictionary 1594 (6th ed.1990) (judgment not
against the manifest weight of evidence when “‘“the greater
amount of credible evidence”’” supports it). A court may
reverse a judgment of conviction only if it appears that the
fact-finder, when it resolved the conflicts in evidence,
“‘clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial
ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983);
accord McKelton at ¶ 328. A reviewing court should find a
conviction against the manifest weight of the evidence only in
the “‘exceptional case in which the evidence weighs heavily
against the conviction.’” Thompkins, 78 Ohio St.3d at 387,
quoting Martin, 20 Ohio App.3d at 175; accord State v. Clinton,
153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State
v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
Athens App. No. 21CA15 69
{¶119} We further note that “‘“[w]hen conflicting evidence is
presented at trial, a conviction is not against the manifest
weight of the evidence simply because the jury believed the
prosecution testimony.”’” State v. Cooper, 170 Ohio App.3d 418,
2007–Ohio–1186, 867 N.E.2d 493, ¶ 17 (4th Dist.), quoting State
v. Mason, 9th Dist. Summit No. 21397, 2003–Ohio–5785, ¶ 17,
quoting State v. Gilliam, 9th Dist. Lorain No. 97CA006757, 1998
WL 487085, *4 (Aug. 12, 1998). Moreover, a conviction is not
against the manifest weight of the evidence even if the
“evidence is subject to different interpretations.” State v.
Adams, 2d Dist. Greene Nos. 2013CA61, 2013–CA–62, 2014–Ohio–
3432, ¶ 24.
{¶120} We also observe that, when an appellate court
concludes that the weight of the evidence supports a defendant’s
conviction, this conclusion necessarily includes a finding that
sufficient evidence supports the conviction. E.g., State v.
Waller, 4th Dist. Adams No. 17CA1044, 2018-Ohio-2014, ¶ 30.
Thus, a determination that the weight of the evidence supports a
conviction is also dispositive of the issue of sufficiency. Id.B
{¶121} After our review of the evidence adduced at trial in
the case sub judice, we do not believe that the evidence weighs
heavily against appellant’s rape convictions under R.C.
2907.02(A)(1)(c) and (A)(2). Those provisions read:
Athens App. No. 21CA15 70
(A)(1) No person shall engage in sexual conduct
with another who is not the spouse of the offender or
who is the spouse of the offender but is living separate
and apart from the offender, when any of the following
applies:
* * * *
(c) The other person’s ability to resist or consent
is substantially impaired because of a mental or
physical condition or because of advanced age, and the
offender knows or has reasonable cause to believe that
the other person’s ability to resist or consent is
substantially impaired because of a mental or physical
condition or because of advanced age.
(2) No person shall engage in sexual conduct with
another when the offender purposely compels the other
person to submit by force or threat of force.
1
{¶122} Appellant first asserts that the evidence fails to
support his 2907.02(A)(2) conviction because the evidence does
not establish that he purposely compelled J.R. to submit to
sexual contact by force or threat of force. In particular,
appellant alleges that J.R. could have left at any time, or
declined to crawl into the backseat with him, and once J.R.
moved to the backseat, she “reasonably signaled” she “wished to
engage in sexual activity with him.” Appellant further argues
that J.R. merely felt regret over the incident and that he did
not purposely compel her to engage in sexual contact.
{¶123} The state, on the other hand, contends that
appellant’s conviction is not against the manifest weight of the
evidence. The state points to testimony that J.R. did not want
to engage in sexual contact with appellant, that she told
Athens App. No. 21CA15 71
appellant to stop, and that appellant did not stop his advances.
{¶124} After our review, we agree with the state’s view of
the evidence. Because J.R.’s testimony contains ample competent
and credible evidence that appellant purposely compelled her to
engage in sexual contact by force or threat of force,
appellant’s R.C. 2907.02(A)(2) rape conviction is not against
the manifest weight of the evidence. The jury was in the best
position to hear the testimony, to assess witness credibility
and the jury chose to believe the prosecution’s witness when it
resolved conflicts in the evidence. This is the function of the
trier of fact. A jury is free to believe all, part or none of
the testimony from any witness who testifies before the jury.
Likewise, we believe that the record contains sufficient
evidence to support the conviction.
2
{¶125} Appellant next argues that his R.C. 2907.02(A)(1)(c)
rape conviction is against the manifest weight of the evidence.
In particular, he contends that the evidence fails to support a
finding that (1) K.H.’s alcohol consumption substantially
impaired her ability to resist or consent, or (2) appellant
“knew or had reasonable cause to believe K.H.’s ability to
resist or consent was substantially impaired.” Appellant claims
that, because K.H. was conscious enough to invite appellant into
her home, undress, and engage in sexual contact with him, the
Athens App. No. 21CA15 72
evidence fails to show that K.H. was substantially impaired, or,
if so, that appellant knew, or had reasonable cause to believe,
that her ability to resist or consent was substantially
impaired.
{¶126} In State v. Canterbury, 4th Dist. Athens No. 13CA34,
2015-Ohio-1926, we discussed the meaning of “substantial
impairment”:
“The phrase ‘substantial impairment’ is not defined
in R.C. 2907.02, nor has the Ohio Supreme Court provided
any definition.” State v. Keeley, [4th Dist. Washington
No. 11CA5, 2012-Ohio-3564] at ¶ 16; citing State v.
Daniels, Summit No. 25808, 2011-Ohio -6414, ¶ 6.
However, the Ohio Supreme Court has stated, in regards
to a sexual battery charge against a youth victim alleged
to have an impairment due to alleged mental retardation,
as follows:
“The phrase ‘substantially impaired,’ in that it is
not defined in the Ohio Criminal Code, must be given the
meaning generally understood in common usage. As
cogently stated by the appellate court, substantial
impairment must be established by demonstrating a
present reduction, diminution or decrease in the
victim’s ability, either to appraise the nature of his
conduct or to control his conduct.” State v. Zeh, 31
Ohio St.3d 99, 103–104, 509 N.E.2d 414 (1987).
* * * *
Further, “[w]hether a person is substantially
impaired ‘does not have to be proven by expert medical
testimony; rather, it can be shown to exist by the
testimony of people who have interacted with the victim,
and by allowing the trier of fact to do its own
assessment of the person’s ability to appraise or
control his or her conduct.’” State v. Lasenby, 3rd
Dist. Allen No. 1-13-36, 2014-Ohio-1878, ¶ 27; quoting
State v. Brady, 8th Dist. Cuyahoga No. 87854, 2007-Ohio-
1453, ¶ 78; State v. Brown, 3rd Dist. Marion No. 9-09-
15, 2009-Ohio-5428, ¶ 21. Thus, the determination of
substantial impairment is made “on a case-by-case basis,
providing great deference to the fact-finder.” Lasenby
Athens App. No. 21CA15 73
at ¶ 27; citing Brown at ¶ 22.
{¶127} Additionally, voluntary intoxication or impairment
is included in the terms “mental or physical condition” as
used in R.C. 2907.02(A)(1)(c). Lasenby at ¶ 28; citing State
v. Harmath, 3rd Dist. Seneca No. 13-06-20, 2007-Ohio-2993, ¶
14; see also State v. Boden, 9th Dist. Summit No. 26623, 2013-
Ohio-4260, ¶ 20; State v. Cedeno, 8th Dist. Cuyahoga No.
98500, 2013-Ohio-821, ¶ 20. Further, courts have held that
“[t]he consumption of large amounts of alcohol in a short
period of time is evidence that voluntary intoxication caused
substantial impairment.” Lasenby at ¶ 28; citing State v.
Hatten, 186 Ohio App.3d 286, 2010–Ohio–499, ¶ 22 (2nd Dist.);
see also State v. Lindsay, 3rd Dist. Logan No. 8–06–24, 2007–
Ohio–4490, ¶ 20.
State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-
1926, ¶ 57-59.
{¶128} Factors that courts identify as evidence of
substantial impairment due to intoxication include: (1) the
victim consumed large quantities of alcohol; (2) the victim
“passed out”; and (3) the victim cannot recall, or has
difficulty remembering, the incident. State v. Dailey, 4th
Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 51 (rape victim
consumed large quantity of alcohol and stated she “passed out”);
State v. Kuck, 2016-Ohio-8512, 79 N.E.3d 1164, ¶ 95 (2nd Dist.)
Athens App. No. 21CA15 74
(substantial impairment established when victim “consumed at
least ten alcoholic drinks”); State v. Lasenby, 3rd Dist. Allen
No. 1-13-36, 2014-Ohio-1878, ¶ 28 (consuming large quantity of
alcohol in short time period and inability to recall events
constitutes evidence of substantial impairment); State v.
Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 24
(2d Dist.) (“stumbling, falling, slurred speech, passing out, or
vomiting” evidence of substantial impairment).
{¶129} We also note that evidence that a rape victim
displayed some awareness, or could ambulate from one location to
another, does not negate a finding of substantial impairment.
Dailey at ¶ 52; State v. Bentz, 2017-Ohio-5483, 93 N.E.3d 358(3rd Dist.), ¶ 105 (rejecting argument that weight of evidence
showed victim “not substantially impaired because she was able
to ambulate out of [defendant]’s bedroom, to [a] vehicle, and to
the police department without assistance”). In Dailey, for
example, the rape victim showed some awareness by feigning sleep
in the hope that the defendant would cease the activity. Id. at
¶ 5. We, nonetheless, upheld the defendant’s substantial-
impairment rape conviction because we did not believe that the
victim’s ability to be sufficiently aware to feign sleep negated
the substantial-impairment element. Rather, being aware does
not equate to a finding that the victim failed to “experience[]
a ‘reduction, diminution or decrease’ in her abilities to
Athens App. No. 21CA15 75
appraise the nature of, or control, her conduct.” Id. at ¶ 52,
quoting Zeh, 31 Ohio St.3d at 103–104.
{¶130} In the case sub judice, after our review we believe
that the record contains ample competent and credible evidence
of K.H.’s substantial impairment at the time appellant engaged
in sexual conduct with her. K.H. testified she spent several
hours consuming numerous alcoholic beverages and she does not
remember how she returned home. She explained she remembers
sitting on her porch and talking with appellant, but after that
point, she could not remember what occurred. Instead, she
indicated that her next recollection is waking up the following
day. The inability to recall what transpired throughout the
night illustrates that K.H. experienced a “reduction, diminution
or decrease in [her] ability, either to appraise the nature of
[her] conduct or to control [her] conduct.” Zeh, 31 Ohio St.3d
at 103–104. If K.H. cannot recall her conduct, the jury
reasonably could have inferred that she had a reduction,
diminution, or decrease in her ability to either assess the
nature of her conduct or to control her conduct.
{¶131} Appellant, however, contends that he did not know, or
have reasonable cause to believe, that K.H.’s ability to resist
or consent was substantially impaired. To support this claim,
appellant relies upon (1) his testimony that he did not think
that K.H. appeared to be under the influence of alcohol, and (2)
Athens App. No. 21CA15 76
the lack of testimony from K.H.’s companions on the night in
question to suggest that K.H. had displayed signs of impairment.
{¶132} Under R.C. 2907.02(A)(1)(c), an accused’s conduct is
not criminal unless, inter alia, the accused engages in sexual
conduct with another when the accused knows, or has reasonable
cause to believe, that the person’s ability to consent or resist
is substantially impaired due to a mental or physical condition.
{¶133} According to R.C. 2901.22(B),
[a] person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.
We observe that “intent, lying as it does within the
privacy of a person’s own thoughts, is not susceptible of
objective proof.” State v. Garner, 74 Ohio St.3d 49, 60, 656
N.E.2d 623 (1995). Thus, “[i]ntent ‘“can never be proved by the
direct testimony of a third person and it need not be. It must
be gathered from the surrounding facts and circumstances.”’”
State v. Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998),
quoting State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293(1990), quoting State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313,
paragraph four of the syllabus (1936). Consequently, “whether a
person acts knowingly can only be determined, absent a
defendant’s admission, from all the surrounding facts and
circumstances * * *.” State v. Huff, 145 Ohio App.3d 555, 563,
Athens App. No. 21CA15 77
763 N.E.2d 695 (1st Dist.2001).
{¶134} Accordingly, whether an accused knew, or had
reasonable cause to believe, that a victim was substantially
impaired for purposes of R.C. 2907.02(A)(1)(c) may be inferred
from the surrounding facts and circumstances, including the
victim’s demeanor. State v. Jones, 8th Dist. Cuyahoga No.
101311, 2015-Ohio-1818, ¶ 43, citing State v. Novak, 11th Dist.
Lake No. 2003-L-077, 2005-Ohio-563, ¶ 25. Evidence that should
alert an accused of a victim’s substantial impairment may
include evidence that the victim was “stumbling, falling,
slurr[ing] speech, passing out, or vomiting.” State v. Hatten,
186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 24 (2d
Dist.). Additionally, “[a] jury can reasonably conclude that
the defendant knew the victim was substantially impaired and
unable to object to the defendant’s conduct if there was
evidence that the victim was in a state of deep sleep or
drunkenness.” State v. Anderson, 6th Dist. Wood No. WD-04-035,
2005-Ohio-534, ¶ 41; accord State v. Palmer-Tesema, 8th Dist.
Cuyahoga No. 107972, 2020-Ohio-907, ¶ 60 (“sleep constitutes a
mental or physical condition that substantially impairs a person
from resisting or consenting to sexual conduct.”); State v.
Graves, 8th Dist. Cuyahoga No. 88845, 2007-Ohio-5430, ¶ 22
(“sleep is a mental or physical condition that substantially
impairs a person from resisting or consenting to sexual
Athens App. No. 21CA15 78
conduct”).
{¶135} For example, a victim’s testimony that she “passed
out” and awoke to the defendant “in between [her] legs and [her]
pants and underwear down and him licking [her] on [her] vagina”
permits a finding that the defendant knew or had reasonable
cause to believe that the victim’s ability to resist or consent
was substantially impaired because of a physical condition.
State v. Miller, 3rd Dist. Logan No. 8-19-02, 2019-Ohio-4121, ¶
38. Additionally, a victim who testifies that she experienced
“blackouts” suggests that the victim was unconscious. Kuck at ¶
97. A victim’s unconscious state, being obviously
ascertainable, also permits a finding that the defendant knew or
had reasonable cause to believe that the victim’s ability to
resist or consent was substantially impaired because of a
physical condition. State v. Eberth, 7th Dist. Mahoning No. 07-
MA-196, 2008-Ohio -6596, ¶ 49 (evidence victim unconscious
during sexual contact “more than enough to prove that she was
substantially impaired”); see State v. Williams, 9th Dist.
Lorain App. No. 02CA008112, 2003-Ohio-4639 (defendant’s
awareness victim passed out after ingesting a substantial amount
of alcohol is evidence that he knew, or should have known, that
the victim substantially impaired). Being unconscious does “not
simply impair [a victim] from resisting or consenting.” Kuck at
¶ 97. Instead, it precludes the victim from taking any action
Athens App. No. 21CA15 79
at all. Id.{¶136} In contrast, when a rape victim testifies that she
“was aware of her surroundings and coherent enough to make
decisions about the extent of her participation in the events in
question,” courts have concluded that this evidence fails to
show that the defendant knew, or had reasonable cause to
believe, that the victim was substantially impaired. State v.
Rivera, 8th Dist. Cuyahoga No. 97091, 2012-Ohio-2060, ¶ 28.
{¶137} After our review in the case sub judice, we believe
that the state presented ample competent and credible evidence
to establish that appellant knew, or had reasonable cause to
know, that K.H. was substantially impaired. K.H. stated she has
no memory of what happened between the time that she spoke with
appellant outside of her residence and when she awoke the next
day. Also, the forensic toxicologist testified that K.H.’s
blood-alcohol content, when submitted at 5:00 p.m. the following
day, was .146%. He explained that the rate of alcohol
dissipation for women is .018% per hour and the varying degrees
of intoxication: (1) intoxication becomes life-threatening once
the blood-alcohol level approaches .35 or .4, and (2) at the
lower concentrations, between .05 and .1, a person’s inhibitions
and critical-thinking skills become impaired. A person with a
.1 blood-alcohol concentration will display some deficits in
reaction time and exhibit coordination difficulties, and when a
Athens App. No. 21CA15 80
person’s content reaches .2, the person can become “confused”
and “disoriented.” At the higher levels, around a .3 and
beyond, a person may have memory problems, and once a person
reaches “a .3 and beyond,” the person “enter[s] a stage of
intoxication that can be associated with stupor or being
comatose.” The toxicologist indicated that a person will not be
“forming memory very well if they’re in a stupor or they’re
unresponsive or unconscious.”
{¶138} Here, K.H.’s testimony, in addition to the forensic
toxicologist’s testimony, permitted the jury to infer that K.H.
was unconscious or passed out when appellant engaged in sexual
conduct with her. K.H. stated she has no memory of the events
(or very little memory according to the SANE report) between the
moment she spoke with appellant while she sat on her front porch
and when she awoke the next day at 1:30 p.m. Her memory lapse,
according to the forensic toxicologist, indicates either “in a
stupor,” “unresponsive[,] or unconscious.” For appellant to
claim to be unaware that K.H. was in any of these states is
specious, and the jury obviously did not find appellant’s
testimony credible. As the trier of fact, it is well within the
jury's province to discredit appellant’s testimony.
{¶139} Consequently, in the case at bar it appears that the
jury opted to believe K.H.’s testimony that she did not consent
to engaging in sexual conduct with appellant and that she was
Athens App. No. 21CA15 81
unaware of, or had scant memory of, the nature of any sexual
contact that had occurred until she awoke the next day when she
noticed that her body displayed indicators of sexual activity.
We find nothing manifestly unjust with the jury’s decision to
discredit appellant’s testimony that he and K.H. engaged in
consensual sexual conduct. Once again, a trier of fact may
choose to believe all, part or none of the testimony of any
witness who appears before it. Here, the jury believed K.H.’s
testimony and discounted appellant’s testimony. Obviously, the
jury is in the best position to observe the witnesses and to
assess their credibility.
{¶140} Therefore, we do not agree with appellant that his
R.C. 2707.02(A)(1)(c) conviction is against the manifest weight
of the evidence. The state presented substantial competent and
credible evidence that K.H. was substantially impaired and that
appellant knew, or had reasonable cause to believe, that K.H.
was substantially impaired. For these same reasons, we believe
that the record contains sufficient evidence to support
appellant’s R.C. 2707.02(A)(1)(c) rape conviction.
{¶141} Accordingly, based upon the foregoing reasons, we
overrule appellant’s sixth assignment of error.
VII
{¶142} In his seventh assignment of error, appellant asserts
that the trial court’s sentence is clearly and convincingly
Athens App. No. 21CA15 82
contrary to law. Appellant does acknowledge that his sentences
“fall within the applicable [statutory} ranges available,” but
asserts that the trial court did not correctly consider “the
purposes and principles of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors set forth in
R.C. 2929.12.” Id.{¶143} When reviewing felony sentences, appellate courts
apply the standard of review outlined in R.C. 2953.08(G)(2).
State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶
12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-
Ohio-1277, ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate
court’s standard for review is not whether the sentencing court
abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies
that an appellate court may increase, reduce, modify, or vacate
and remand a challenged felony sentence if the court clearly and
convincingly finds either:
(a) That the record does not support the sentencing
court’s findings under division (B) or (D) of section
2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶144} A defendant bears the burden to establish, by clear
and convincing evidence, (1) that a sentence is either contrary
to law or (2) that the record does not support the specified
findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C.
Athens App. No. 21CA15 83
2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 2929.20(I). State v.
Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48;
State v. Shankland, 4th Dist. Washington Nos. 18CA11 and 18CA12,
2019-Ohio-404, ¶ 20.
[C]lear and convincing evidence is that measure or
degree of proof which is more than a mere ‘preponderance
of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal
cases, and which will produce in the mind of the trier
of facts a firm belief or conviction as to the facts
sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
{¶145} “A court reviewing a criminal sentence is required by
R.C. 2953.08(F) to review the entire trial-court record,
including any oral or written statements and presentence-
investigation reports.” State v. Bryant, ___ Ohio St.3d ___,
2022-Ohio-1878, ___ N.E.3d ___, ¶ 20, citing R.C. 2953.08(F)(1)
through (4). We additionally observe, however, that “[n]othing
in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute
its judgment for that of the trial court concerning the sentence
that best reflects compliance with R.C. 2929.11 and 2929.12.”
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d
649, ¶ 42. In other words, “R.C. 2953.08(G)(2) does not allow
an appellate court to modify or vacate a sentence based on its
view that the sentence is not supported by the record under R.C.
Athens App. No. 21CA15 84
2929.11 and 2929.12.” Bryant at ¶ 22. Consequently, appellate
courts cannot review a felony sentence when “the appellant’s
sole contention is that the trial court improperly considered
the factors of R.C. 2929.11 or 2929.12 when fashioning that
sentence.” State v. Stenson, 6th Dist. Lucas No. L-20-1074,
2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; accord State v.
Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13
(“In light of Jones, assigning error to the trial court’s
imposition of sentence as contrary to law based solely on its
consideration of R.C. 2929.11 and 2929.12 is no longer grounds
for this court to find reversible error.”); State v. Loy, 4th
Dist. Washington No. 19CA21, 2021-Ohio-403, ¶ 30. We also
observe that “neither R.C. 2929.11 nor 2929.12 requires a trial
court to make any specific factual findings on the record.”
Jones at ¶ 20.
{¶146} Furthermore, “an appellate court’s determination that
the record does not support a sentence does not equate to a
determination that the sentence is ‘otherwise contrary to law’
as that term is used in R.C. 2953.08(G)(2)(b).” Jones at ¶ 32.
“[O]therwise contrary to law” means “‘in violation of statute or
legal regulations at a given time.’” Id. at ¶ 34 quoting
Black's Law Dictionary 328 (6th Ed.1990), cited with approval in
Bryant at ¶ 22. Thus, for example, “when a trial court imposes
a sentence based on factors or considerations that are
Athens App. No. 21CA15 85
extraneous to those that are permitted by R.C. 2929.11 and
2929.12, that sentence is contrary to law.” Bryant at ¶ 22.
{¶147} In the case sub judice, appellant has not argued that
the record fails to support the findings under R.C. 2929.13(B),
R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), 2929.14(C)(4), or R.C.
2929.20(I). Appellant agrees that his sentences “fall within
the applicable ranges available,” but instead asserts that the
issue is “whether the trial court considered the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and
the seriousness and recidivism factors set forth in R.C.
2929.12.”
{¶148} As we pointed out above, however, R.C. 2953.02(G)(2)
does not allow this court to independently review the record to
determine whether the trial court chose an appropriate sentence
based on the R.C. 2929.11 and R.C. 2929.12 factors. See Jones,
supra; State v. Hughes, 4th Dist. Adams No. 21CA1127, 2021-Ohio-
3127, ¶ 41 (“R.C. 2953.08(G)(2) does not give appellate courts
broad authority to review sentences to determine if they are
supported by the record”). Therefore, we may not consider the
issue of whether the trial court properly considered the
purposes and principles of felony sentencing listed in R.C.
2929.11 and the seriousness and recidivism factors listed in
R.C. 2929.12. We note, however, that the trial court did, in
fact, indicate that it did fully consider the factors listed in
Athens App. No. 21CA15 86
each section. Furthermore, we find nothing in the record to
suggest that the trial court’s sentencing decision is contrary
to law. Rather, appellant agrees that his prison sentence is
authorized under the relevant statutes.
{¶149} Accordingly, based upon the foregoing reasons, we
overrule appellant’s seventh assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
Athens App. No. 21CA15 87
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Athens County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.