State v. Seals , 2023 Ohio 1261 ( 2023 )

[Cite as State v. Seals, 2023-Ohio-1261.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Andrew J. King, J.
-vs-
Case No. CT2022-0045
DANIEL SEALS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2021-0213
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 17, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON
PROSECUTING ATTORNEY 8138 Somerset Road
JOHN CONNOR DEVER Thornville, Ohio 43076
ASSISTANT PROSECUTOR
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0045 2
Wise, J.
{¶1} Appellant Daniel Seals appeals his conviction and sentence after a jury trial
in the Muskingum County Court of Common Pleas. Appellee is State of Ohio. The
relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On April 22, 2021, Appellant was indicted on fifteen counts of Gross Sexual
Imposition in violation of R.C. §2907.05(A)(4).
{¶3} On May 17, 2022, Appellant began a jury trial in the Muskingum County
Court of Common Pleas.
{¶4} During voir dire, Juror 25 indicated he may not be impartial and was brought
into chambers to discuss.
{¶5} During the trial court’s examination of Juror 25, he noted that nothing had
happened to him or his family, but generally he could not stand sexual predators. Juror
25 agreed the defendant was presumed to be innocent, and Appellee had to prove guilt
beyond a reasonable doubt. Juror 25 stated he could decide the case on the evidence
presented at trial, and did not have a problem that the burden of proof is on Appellee.
However, during the trial court’s questions, Juror 25 stated his daughter had been
involved in sex trafficking and the juror was worried about what the traffickers did to her
would prevent him to be impartial.
{¶6} Appellant’s trial counsel made a challenge for cause, which was overruled
by the court. However, after passing on their third preemptory challenge, Appellee used
its fourth preemptory challenge to dismiss Juror 25. Juror 25 was not a member of the
jury.
Muskingum County, Case No. CT2022-0045 3
{¶7} At trial, L.R. testified his mother and Appellant’s brother started dating and
he moved to Muskingum County when he was eleven years old. Upon moving in, L.R.
lived with his mother, Appellant, Appellant’s brother, and Appellant’s two nieces off and
on. L.R.’s sister moved in later.
{¶8} After the first few months, Appellant offered to rub L.R.’s back in L.R.’s
bedroom at night in 2015. The back rubs continued for about a year. Then when L.R. fell
asleep during a backrub, Appellant reached in a scooping motion and touched L.R.
between his testicles and anus. Appellant would touch him this was for ten to fifteen
minutes. This happened several times throughout the summer of 2015.
{¶9} Nothing happened in October of 2015, but Appellant resumed the touching
in November of 2015 and continued through the spring of 2016 a total of at least fifteen
times. L.R. stated he would pretend to be asleep every time it happened. L.R. took five
years to tell his mother about the abuse. L.R. indicated he could smell alcohol on
Appellant’s breath on the nights he was abused.
{¶10} Next, Celeste Prince testified that she was previously employed at
Nationwide Children’s Hospital. She conducted a forensic interview of L.R. As part of her
duties at work, Ms. Prince indicated she would summarize the contents of the interview
as part of a patient’s medical records. Appellee then played a recording of the forensic
interview of L.R. The content of L.R.’s testimony was consistent with the information he
disclosed in the forensic interview.
{¶11} Next, S.W. testified that she is the mother of L.R. She testified that Appellant
was the only male influence in L.R.’s life other than Appellant’s brother, who was only
around L.R. on weekends. S.W. testified Appellant would drink whiskey frequently. She
Muskingum County, Case No. CT2022-0045 4
found Appellant in L.R.’s room on several occasions. On more than one occasion she
found Appellant asleep on L.R.’s floor next to the bed. Appellant told S.W. he was giving
L.R. a backrub to calm him down from a nightmare.
{¶12} Appellee then rested.
{¶13} Appellant’s first witness was his niece, Jo.S. She testified that she never
found Appellant in L.R.’s room. She said that his drinking did not have a negative effect
on him, but relaxed him. She recalled L.R. liking Danny, having a fairly close relationship,
and would even go places with him.
{¶14} Next, Appellant testified the first time he heard about the accusations was
when he received a note to call Detective Castul. Appellant said that during his interview
with Detective Castul, he admitted to knowing L.R. but never inappropriately touching
him. He said he never paid L.R. special attention, and only rubbed L.R.’s back when L.R.
complained of back pain after playing sports.
{¶15} The jury found Appellant guilty on Count 1, but not guilty on Counts two
through fifteen.
{¶16} On June 29, 2022, the matter proceeded to a sentencing hearing. At the
hearing, the trial court sentenced Appellant to fifty-four months in prison and gave
Appellant credit for 156 days in prison.
ASSIGNMENTS OF ERROR
{¶17} Appellant filed a timely notice of appeal and herein raises the following three
Assignments of Error:
{¶18} “I. A JUROR WITH CLEAR PRECONCEIVED PREJUDICE WAS SEATED
DURING THE VOIR DIRE PROCESS THEREBY TAINTING THE JURY.
Muskingum County, Case No. CT2022-0045 5
{¶19} “II. THE TRIAL COURT ERRED WHEN ADMITTING THE STATE’S
EXHIBIT 1A AND 2, WHICH WERE NOT STATEMENTS MADE FOR THE PURPOSE
OF MEDICAL DIAGNOSIS OR TREATMENT.
{¶20} “III. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH [sic] O.R.C. §2929.11 AND FACTORS TO BE
CONSIDERED IN O.R.C. §2929.12.”
I.
{¶21} In Appellant’s first Assignment of Error, Appellant argues by seating juror
25, the trial court violated Appellant’s right to a fair and impartial jury. We disagree.
{¶22} “Pursuant to the Sixth and Fourteenth Amendments, a criminal defendant
is guaranteed the right to an impartial and unbiased jury.” Miller v. Webb, 385 F.3d 666,
672 (6th Cir.2004); State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165 N.E.3d
1198, ¶49. The trial court and counsel have broad discretion in a juror’s ability to be
impartial. State v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d 772 (1998). However, “when
a juror who has exhibited actual bias against a defendant is seated on the jury, the
defendant’s Sixth Amendment right to an impartial jury has been violated. Froman at
¶49.
{¶23} “Resolution of the impartiality issue rests in large part on the trial court’s
assessment of the juror’s credibility and demeanor, and the context in which the issue
arises.” State v. Lloyd, 8th Dist. Cuyahoga No. 109128, 2021-Ohio-1808, ¶17, citing
Skilling v. U.S., 561 U.S. 358, 386, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). The abuse
of discretion standard is more than an error of judgment; it implies the court ruled
Muskingum County, Case No. CT2022-0045 6
arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶24} “Actual bias is ‘bias in fact’ –the existence of a state of mind that leads to
an inference that the person will not act with entire impartiality.” United State v. Torres,
128 F.3d 38,43 (2d Cir.1997); see also United States v. Wood, 299 U.S. 123, 133, 57
S.Ct. 177, 81 L.Ed. 78 (1936). Appellant may show actual bias by either the juror’s
express admission or circumstantial evidence of the juror’s biased attitude. Hughes v.
United States, 258 F.3d 453, 459 (6th Cir.2001). Courts have found actual bias when a
juror “unequivocally stated she could not be fair due to her law-enforcement bias.” Id. at
459-460. Courts have also found actual bias when a juror had a fixed opinion of a
defendant’s guilt based on pretrial publicity. Irwin v. Dowd, 366 U.S. 717, 727-728, 81
S.Ct. 1639, 6 L.Ed.2d 751 (1961).
{¶25} R.C. §2945.25, in pertinent part, states:
(B) That the person is possessed of a state of mind evincing enmity
or bias toward the defendant or the state; but no person summoned
as a juror shall be disqualified by reason of a previously formed or
expressed opinion with reference to the guilt or innocence of the
accused, if the court is satisfied, from examination of the juror or from
other evidence, that the juror will render an impartial verdict
according to the law and the evidence submitted to the jury at the
trial[.]
{¶26} In the case sub judice, Appellant argues that Juror 25 said on several
occasions he cannot be impartial because he expressed that he finds pedophiles
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disgusting, that he may have a previously formed opinion of the defendant because “I
can’t prove he’s guilty yet,” and that he did not like the idea of hearing about the case
because it involved abuse of a child. What Appellant failed to argue in his brief is that
Juror 25’s daughter was the victim of sex trafficking. However, after an examination by
the trial court, the juror indicated that if he is chosen he could be fair, listen to the
evidence, be impartial in his judgment, but would prefer not to be chosen. He indicated
he understood Appellant is entitled to a presumption of innocence and the burden to
prove guilt beyond a reasonable doubt is on the prosecution. It is clear from the trial
court’s examination of Juror 25, that it was satisfied the juror would render an impartial
verdict according to law. Therefore, pursuant to R.C. §2945.25, the trial court did not
abuse its discretion when, after examination of Juror 25, it denied Appellant’s challenge
for cause.
{¶27} Even assuming arguendo that Juror 25 did have actual bias, the State used
a preemptory challenge to dismiss Juror 25. He neither heard evidence nor rendered an
opinion in this matter. Therefore, Appellant is unable to show he was prejudiced by the
alleged bias of a prospective juror who was dismissed by Appellee during voir dire.
{¶28} Appellant’s first Assignment of Error is overruled.
II.
{¶29} In Appellant’s second Assignment of Error, Appellant argues the trial court
erred in admitting Exhibits 1A and 2. We disagree.
{¶30} “Ordinarily, a trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case, so long as such discretion is exercised
in line with the rules of procedure and evidence.” Rigby v. Lake County 58 Ohio St.3d
Muskingum County, Case No. CT2022-0045 8
269, 271, 569 N.E.2d 1056 (1991). The appellate court must limit its review of the trial
court’s admission or exclusion of evidence to whether the trial court abused its discretion.
Id. The abuse of discretion standard is more than an error of judgment; it implies the
court ruled arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983).
{¶31} Evid.R. 803, in pertinent part states:
(4) Statements for Purposes of Medical Diagnosis or Treatment.
Statements 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.
{¶32} To determine “whether statements made to a forensic interviewer at a child
advocacy center are made for the purpose of medical diagnosis and treatment, as
opposed to forensic investigative purposes, the court must ‘identify the primary purpose
of the statements.’ ” State v. Remy, 2d Dist. Clark No. 2017-CA-6, 2018-Ohio-2856, ¶82,
quoting State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶28.
“Whether the purpose of a child’s statements is for medical diagnosis or treatment will
depend on the facts of the particular case.” State v. Jones, 2d Dist. Montgomery No.
26289, 2015-Ohio-4116, 43 N.E.3d 833, ¶73.
{¶33} In the case at bar, Appellant does not point to specific statements when
arguing the inadmissibility of the evidence. Instead, he makes a holistic argument that
the entire interview was for forensic investigative purposes, and therefore we will
Muskingum County, Case No. CT2022-0045 9
analyze, not whether these statements were made for the purpose of medical diagnosis
or treatment, but if the statements erroneously admitted were harmless.
{¶34} In the case sub judice, Appellee played the full recording of L.R.’s forensic
interview over Appellant’s objection. Appellant claims some, if not all, of the statements
are inadmissible hearsay not covered by the medical diagnosis or treatment exception.
However, this Court has previously held that when the “declarant testifies and is
examined on the same matters as contained in impermissible hearsay statements, and
where admission is essentially cumulative, such admission is harmless.” State v. Burge,
5th Dist. Stark No. 2016CA00217, 2017-Ohio-7862, ¶30. L.R. testified about the same
sexual acts contained in the forensic interview recording, at least fifteen in total. Thus,
the admission of L.R.’s recorded statements was harmless.
{¶35} Appellant’s second Assignment of Error is overruled.
III.
{¶36} In Appellant’s third Assignment of Error, Appellant argues the
proportionality of the sentence was inconsistent with the principles set forth in R.C.
§2929.11 and factors to be considered in R.C. §2929.12.
{¶37} This Court reviews felony sentences using the standard of review set forth
in R.C. §2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31.
Subsection (G)(2) sets forth this Court’s standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the sentence
or modification given by the sentencing court.
Muskingum County, Case No. CT2022-0045 10
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing. The appellate
court’s standard of review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this division
if it clearly and convincingly finds either of the following:
(a) That 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 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is contrary to law.
{¶38} “Clear 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.
{¶39} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.’ ” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶36.
Muskingum County, Case No. CT2022-0045 11
{¶40} In the case sub judice, Appellant does not argue that the sentence was
outside the permissible statutory range, but that the trial court failed to consider and
weigh the principles set forth in R.C. §2929.11 and factors listed in R.C. §2929.12
appropriately. However, upon review of the record, the trial court noted it considered the
facts and circumstances of the case and, when given multiple opportunities to show
remorse by the court in the sentencing hearing, Appellant demonstrated a complete lack
of remorse for his crime. The trial court then sentenced Appellant to fifty-four months in
prison. Therefore, we find the sentence is not clearly and convincingly contrary to law.
The sentence is within the statutory range, and the trial court considered the principles
set forth in R.C. §2929.11 and factors listed in R.C. §2929.12.
{¶41} Appellant’s third Assignment of Error is overruled.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
King, J., concur.
JWW/br 0413