State v. Maddox , 2022 Ohio 956 ( 2022 )

[Cite as State v. Maddox, 2022-Ohio-956.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Earle E. Wise, Jr., P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 2021 CA 00072
JASON JOHN MADDOX
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common
Pleas, Case No. 2020 CR 01698
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 24, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE DONOVAN R. HLL
PROSECUTING ATTORNEY 122 Market Avenue North
VICKI L. DeSANTIS Suite 101
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2021 CA 00072 2
Wise, John, J.
{¶1} Appellant Jason Maddox appeals his conviction on one count of Rape
entered in the Stark County Court of Common Pleas following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} On September 21, 2020, the Stark County Grand Jury Indicted Appellant
Jason Maddox on three counts of Rape of an individual less than thirteen, in violation of
R.C. §2907.02(A)(1)(b), felonies of the first degree, and three counts of Rape by force or
threat of force, in violation of R.C. §2907.02(A)(2)(B), felonies of the first degree.
{¶5} On February 8, 2021, Appellant filed a Motion to Determine the Admissibility
of Statements, seeking a hearing from the court to determine the admissibility of
statements that the alleged minor victim had made to the forensic interviewer at the
Children's Network. The motion was made pursuant to the Ohio Supreme Court holding
in State v. Arnold, 126 Ohio St.3d 290, 2010–Ohio–2742, 933 N.E.2d 775.
{¶6} On March 18, 2021, the trial court held an “Arnold Hearing” pursuant to
Appellant’s motion. Prior to the commencement of that hearing, the parties informed the
court that an agreement had been reached and a stipulated Exhibit 1 was submitted to
the court, which contained a redacted transcript of the alleged victim's forensic interview
that the parties agreed would be admissible at trial.
Stark County, Case No. 2021 CA 00072 3
{¶7} On April 19, 2021, Appellant filed a Motion in Limine requesting the trial
court to prohibit Appellee from mentioning or presenting testimony concerning Appellant’s
prior conviction and/or prior bad acts.
{¶8} On April 19, 2021, Appellant also filed a motion requesting an in-camera
inspection of the case file of Stark County Department of Job and Family Services
(SCDJFS) for the alleged victim.
{¶9} By Judgment Entry filed April 26, 2021, the court granted Appellant's
request for the in camera inspection of SCDJFS's case file.
{¶10} On May 17, 2021, the jury trial in this matter commenced. The first witness
to testify was the victim, A.B. A.B. testified she was 15 years old at the time of trial. (T. at
203). A.B. recalled that she was twelve in July, 2018, and her parents were divorcing.
A.B. was going into seventh grade at Crenshaw Middle School. She stated that she first
met Appellant Jason Maddox at her home while she was cooking and he was with her
mom. (T. at 205). She recollected that her grandfather had just passed away. A.B. testified
that Appellant came to her bedroom and told her to get on the floor. He then proceeded
to pull her pants down and force his penis in her vagina. (T. at 207, 210). She drew a
picture of her bedroom for the jury to show where the rapes occurred. A.B. testified
Appellant told her not to tell anyone "because it will ruin my mom and it will ruin my family".
(T. at 210). She said she did, however, tell a friend from school, Jasmine, what happened.
She testified she could not call out for help, even though others were home, because
Appellant put a pillow over her face. (T. at 211).
{¶11} A.B. testified that the second rape occurred in her closet while she was
getting her clothes. She told the jury that Appellant pushed her on the ground, pulled
Stark County, Case No. 2021 CA 00072 4
down her pants and forced his penis inside her. (T. at 211-213, 214). Again, he told her
not to tell anyone.
{¶12} A.B. testified that the last rape occurred in her room. She testified that she
tried to get away but could not, and he raped her again. A.B. testified she was scared.
This time Appellant told her if she said anything he would hurt her family and "that he
knew people". (T. at 215).
{¶13} A.B. testified she was alone with Appellant frequently. One-time Appellant
bought her expensive tennis shoes and snacks. However, she often let her friend Jasmine
wear the shoes because she did not want to wear them because they were from
Appellant. (T. at 216-217). A.B. testified that she met Jasmine in seventh grade. (T. at
218). A.B. turned thirteen on October 13 of that year. (T. at 218). A.B. believed she told
Jasmine after her birthday party that Appellant had been touching her. (T. at 218-219).
Jasmine was supportive and asked if A.B. told her mom. (T. at 219). A.B. did not tell her
mom then but told Jasmine she did because she was scared that Appellant would hurt
her family. Id. A.B. testified she began to have an attitude with Appellant and then her
mom and family. (T. at 220). She testified that she told her mom about a year and a half
later in January, 2020. (T. at 221). A.B. explained that she finally told her mom because
her mom's relationship with Appellant had ended. Id.{¶14} A.B. then repeated that Appellant placed a pillow over her face on the first
and third rape. (T. at 221). A.B. then identified Appellant in open court. (T. at 222).
{¶15} On cross examination, A.B. testified she did not recall Appellant using a
condom. (T. at 229).
Stark County, Case No. 2021 CA 00072 5
{¶16} The State then called A.B.’s friend, Jasmine W., who was fourteen at the
time of trial. Jasmine testified she met A.B. in 2018, when they were in seventh grade.
They became fast friends and spent time together outside of school. Jasmine went to
A.B.'s thirteenth birthday party where she recalled seeing Appellant. (T. at 234). Jasmine
also testified about the girls trading shoes and that it was A.B.'s idea. (T. at 235). Jasmine
recalled that prior to A.B.’s 13th birthday she was usually really happy but then she was
just sad. (T. at 236). Jasmine testified that after some prompting, A.B. told her she was
sexually abused by her mom's boyfriend. (T. at 236).
{¶17} Melissa B. then took the stand. Melissa is the mother of A.B. and five
younger children. (T. at 240). Melissa B. stated that she had known Appellant since 2002
or 2003, but that she had lived out of state for ten years. She moved to 1216 Ford Court
in Canton in July, 2018. (T. at 245). Melissa stated that she reconnected with Appellant
in June of 2018 through Facebook. She stated Appellant either came to her house or she
would pick him up from his various jobs because he did not have a car. (T. at 247). When
asked about going to his house, she recounted that she received a text from someone
named Savannah, Appellant's girlfriend, which read, "This is Savannah, [Appellant's]
girlfriend, I knew he'd been lying to me." (T. at 248). Melissa responded, "Well, [Appellant]
said he didn't have a girlfriend; he lived with his mom". Id. Eventually, they spoke and met
where Appellant's mom lived. (T. at 249). Melissa testified she told Savannah that she
had been seeing Appellant for a while and that they smoked weed together and had sex
a few times. (T. at 250). She then testified that she told Savannah that "there were times
where I would pick him up and I thought we were getting weed, but he was getting coke
... ". Id. Defense counsel objected to this and the court sustained the objection and
Stark County, Case No. 2021 CA 00072 6
instructed the jury to disregard the last comment. (T. at 250-251). Melissa testified she
was intimate with Appellant and they had sex on occasion. (T. at 251). She testified there
were times Appellant was alone with her children, such as when she picked up her mom
to bring her home, or took a few of the kids with her, or when she went to the store for
food, etc. (T. at 252-253). Melissa recalled that she started to notice a change in her
daughter after she started seventh grade. (T. at 253). "It was mostly her behavior. She
was talking back, arguing, trying to pick a fight about anything, but I thought it was
because we had moved." Id. Also, Melissa relayed that her dad had recently died, she
had left her husband, A.B. was turning thirteen, and she had started at a new school. (T.
at 252-253). She testified that A.B. told her about the rapes in January or February of
2020. (T. at 254). Melissa stated that she was very angry, and that initially they decided
not to tell anyone until A.B.'s dad was home. Id. He was a truck driver and only home
once a month. Id. However, Melissa and A.B did tell Melissa’s mother and sister. (T. at
255). Almost immediately after returning home from telling her mother and sister, the
police showed up at the house because Melissa's sister called them. Id. Melissa told
police they were trying to respect A.B.'s wishes to wait for her dad to get home first. (T.
at 256). She testified a case worker came to the house and interviewed all the children.
(T. at 257). Melissa also took A.B. to the Children's Network on February 14, 2020, for a
forensic interview. (T. at 257).
{¶18} Melissa also described the layout of the house and that A.B. told her that
Appellant had raped her three different times: once in the closet and twice in her bedroom.
(T. at 260). She recalled that A.B. told her that the first time that Appellant raped her was
when Melissa's dad passed away, around July 13, 2018. (T. at 260). She testified A.B.
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was twelve at the time. (T. at 260-261). On cross-examination, defense counsel asked
Melissa if she and Appellant had been sexually active. (T. at 263-264). Counsel also
asked Melissa B. if she smoked weed with Appellant. Id.{¶19} On redirect, Melissa testified that although she was not the one to call the
police, she would have called had her sister not done so. (T. at 266).
{¶20} The State’s next witness was Kimberlee Hetrick. Ms. Hetrick was employed
through Stark County Children's Services in the intake department, and she described
her job duties. (T. at 272-273). She was assigned this case and she testified that they
received a report on their hotline concerning sexual abuse against A.B. by her mother’s
boyfriend, Jason. (T. at 275). She explained that the initial concerns were the disclosure
of three separate incidents where Appellant forced his penis into A.B.'s vagina and placed
a pillow over her face. (T. at 276).
{¶21} Ms. Hetrick testified that she had a telephone call with A.B.’s mother Melissa
and scheduled a home visit in February, 2020, to meet A.B. and Melissa. (T. at 277). She
also scheduled the forensic interview at the Children's Network. (T. at 278). Ms. Hetrick
testified there were no witnesses to the rapes, but that A.B. had disclosed the abuse to
her friend, Jasmine. Id. Ms. Hetrick also testified that A.B. had a medical exam and that
her disposition of the case indicated allegations of sex abuse. (T. at 280-281). Ms. Hetrick
testified there are three possible dispositions: unsubstantiated, substantiated and
indicated. She testified indicated was the most common disposition. (T. at 282).
{¶22} Next, Detective James Lile with the Canton Police Department testified. Det.
Lile testified the he was also a member of the multidisciplinary team at the Children's
Network, and that he began his investigation of this case in January, 2020. (T. at 300).
Stark County, Case No. 2021 CA 00072 8
He stated that he attended the forensic interview of A.B. and testified the allegations
stemmed from July of 2018. (T. at 300-301). Det. Lile testified that A.B. disclosed she was
raped several times by Appellant at her house in the bedroom and in the closet, and that
he held a pillow over her face. (T. at 301-302). Det. Lile told the jury that he interviewed
Appellant on February 21, 2020, and that Appellant told him that he had sex with A.B.’s
mother Melissa, that he spent time at Melissa’s house, and that he had become a male
figure in the children's lives. (T. at 303). Appellant denied the allegations of sex abuse
and told Det. Lile that it was A.B. who was aggressive towards him sexually and that he
would push her away. (T. at 304). Appellant admitted to Det. Lile that he stayed with the
children when Melissa's father passed away and she was away from the house. (T. at
304-305). When asked, Det. Lile affirmed that suspects often shift their conduct away
from themselves onto the victim and/or minimize their role in the conduct. (T. at 305). Det.
Lile confirmed the conduct occurred at A.B.'s house on Ford Court in Stark County, Ohio.
Id. Det. Lile confirmed he spoke with Ms. Hetrick and also had a telephone conversation
with A.B. (T. at 308-310).
{¶23} The last witness was Nurse Kathleen Nduati, MSN, APRN-CNP who works
at the CARE Center at Akron Children's Hospital as a pediatric nurse practitioner. Nurse
Nduati testified that from July, 2016, through November, 2020, she worked in Stark
County where she evaluated children with concerns of sexual, physical abuse and
neglect. (T. at 312-313). Following a recitation of her credentials, the court qualified Nurse
Nduati as an expert without objection. (T. at 315). Ms. Nduati testified that she performed
a physical evaluation of A.B. on February 14, 2020, who was fourteen at the time. (T. at
317). The redacted portion of the forensic interview was then played for the jury. (T. at
Stark County, Case No. 2021 CA 00072 9
318). Nurse Nduati also identified State's Exhibit A2 as her report of A.B. (T. at 320-321).
Out of the three diagnoses available to her (child sex abuse, no historical findings or
inconclusive), Nurse Nduati made a diagnosis of child sex abuse. (T. at 320). She
testified, "During A.B.'s interview today, she disclosed being forced to have vaginal/penile
sex on 3 separate occasions by a friend of her mom's, [Appellant], age 32, when she was
the ages of 12 to 13. He also tried to force his penis in her mouth. He also grabbed her
vagina on the outside of the clothing". Nurse Nduati stated that she found A.B.'s medical
evaluation to be within normal limits, not unexpected due to the amount of time passed
and the healing nature of the skin and genital tissue. (T. at 321). She explained that she
only finds physical findings in about five percent of the cases. (T. at 322-323). She further
testified about 80-90 percent of diagnoses are based off of the history as told by the
patient (T. at 323).
{¶24} The defense did not call any witnesses.
{¶25} Appellant made a motion for acquittal on the basis that the State did not
prove the essential elements of the crimes alleged, which was denied. (T. at 329).
{¶26} During closing arguments, the State revealed that A.B. collapsed on the
floor outside of court. Defense objected and the court struck the comment and instructed
the jury to disregard it. (T. at 354). The State also commented on Melissa's intimacy with
Appellant and smoking marijuana. (T. at 355). No objection was raised. Defense counsel
objected to another statement made by the prosecutor wherein he told the jury that A.B.
was credible and that she did not make any of this up. (T. at 358). The court ordered this
comment stricken. (T. at 358-359).
Stark County, Case No. 2021 CA 00072 10
{¶27} During deliberations, the trial court was made aware of concerns raised by
members of the jury. Based upon these concerns, which were addressed on the record,
Appellee moved for a mistrial, Appellant opposed that motion, and the trial court denied
the motion. (T. at 409). Additionally, based upon specific concerns raised by Juror 14, the
Appellant requested that Juror 14 be excused, which Appellee opposed, and the trial court
denied. (T. at 410). The trial court reread a portion of the jury instructions to address both
of these concerns. (T. at 411-413).
{¶28} While the jury continued to deliberate, a written question was submitted to
the court. (T. at 414-415). The court issued a written response to the jury which was not
opposed by either party. (T. at 415-416). Thereafter, the court received a message from
the jury that it was struggling to reach a unanimous decision. (T. at 417). In response, the
court read the Howard Charge to the jury. (T. at. 419-420).
{¶29} Ultimately, the jury was able to reach a unanimous verdict, which found the
Appellant guilty of Count I of the Indictment, and not guilty of Count II. (T. at 424).
{¶30} On May 21, 2021, Appellant appeared before the trial court for sentencing.
The court imposed a sentence of ten (10) years to life on Count I. (Sent. T. at 6-9).
{¶31} On May 26, 2021, the court filed its Judgment Entries reflecting the
Appellant's conviction and sentence.
{¶32} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶33} “I. THE APPELLEE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION OF RAPE AGAINST APPELLANT UNDER
2907.02(A)(1)(b)(B), AND THE CONVICTION MUST BE REVERSED.
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{¶34} “II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
{¶35} “III. THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT.
{¶36} “IV. THE APPELLANT WAS DENIED A FAIR TRIAL BY THE
CUMULATIVE ERRORS BY THE TRIAL COURT.
{¶37} “V. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 6TH AND 14TH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1,
SECTION 10 OF THE OHIO CONSTITUTION.”
I., II.
{¶38} We address Appellant's first and second assignments of error together, as
they raise related issues of whether the judgment convicting Appellant of rape is against
the manifest weight and sufficiency of the evidence
{¶39} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
541 (1997). The granting of a new trial "should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction." Martin at 175.
Stark County, Case No. 2021 CA 00072 12
{¶40} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt." Id. at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶41} Appellant herein was convicted of Rape, in violation of R.C.
§2907.02(A)(1)(b) which states:
(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:
(b) The other person is less than thirteen years of age, whether or not the
offender knows the age of the other person.
{¶42} “Sexual conduct” is defined by R.C. §2907.01(A):
“Sexual conduct” means vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any instrument, apparatus, or other object
into the vaginal or anal opening of another. Penetration, however slight, is
sufficient to complete vaginal or anal intercourse.
{¶43} At trial, the jury heard testimony from several witnesses, including the
victim. A.B.’s birth date is October 13, 2005. At trial, she testified to three incidents in
Stark County, Case No. 2021 CA 00072 13
which Appellant engaged in vaginal intercourse with her. While A.B. did not provide
specific dates when these acts occurred, she testified that her family moved back to Ohio
in 2017 when she was eleven or twelve years old. (T. at 204). She further testified that
she was twelve years old in July, 2018, the summer before she started seventh grade.
(T. at 205-206). She recalled the first time Appellant raped her was around the time her
grandfather passed away, which occurred in July, 2018. (T. at 206-207). As to each of
the rapes, A.B. testified that Appellant forced her to the floor, pulled down her pants and
forced his penis inside of her. (T. at 207-210; 211, 213-214; 214-215).
{¶44} A.B. testified that after the first rape, she told her friend Jasmine what had
happened. (T. at 211). She stated that she met Jasmine in 7th grade and that Jasmine
came to her 13th birthday party on October 13th. (T. at 218). A.B. testified that it was after
her 13th party that she told Jasmine that Appellant had raped her. (T. at 219, 225).
{¶45} Jasmine testified that A.B. told her about the sexual abuse by her mom’s
boyfriend either at or shortly after A.B.’s thirteenth birthday. (T. 234-236, 238). She told
Jasmine he was the guy from her birthday party. (T. at 236-237).
{¶46} A.B.’s mother, Melissa, testified that she reconnected with Appellant in
June, 2018, after moving back to Ohio. (T. at 245). She testified that Appellant was alone
with her children on several occasions. (T. at 252-253). She recalled that she started
noticing behavioral changes in her daughter around the time she started seventh grade.
(T. at 253). She testified that A.B. told her about the rapes in January or February, 2020.
(T. at 254). She stated that A.B. told her that the first rape occurred right when her
grandfather died which was July 13, 2018. (T. at 260). She testified that A.B. was twelve
in July, 2018. (T. at 260-261).
Stark County, Case No. 2021 CA 00072 14
{¶47} Further, there was physical evidence which corroborated the victim’s
testimony. Nurse Nduati testified to performing a physical exam on A.B. She explained
her findings and her diagnosis of child sex abuse in this case. (T. at 317, 320-323).
{¶48} Additionally, the forensic interview of the victim was recorded, and the
recording was played for the jury and admitted into evidence at trial.
{¶49} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We note
circumstantial evidence is that which can be "inferred from reasonably and justifiably
connected facts." State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph
five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and
persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44, 595
N.E.2d 915. It is to be given the same weight and deference as direct evidence. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶50} In light of the foregoing, we find the testimony and evidence presented by
the State provides sufficient evidence demonstrating that Appellant engaged in sexual
conduct with A.B. when she was under the age of thirteen.
{¶51} Finally, notwithstanding the State's failure to affirmatively ask the victim
whether she was the spouse of Appellant, the State nevertheless presented sufficient
evidence that A.B. was not Appellant’s spouse. See State v. Muller, 3d Dist. Defiance No.
4-11-09, 2012-Ohio-3530, ¶ 82 (“ ‘When the state fails to affirmatively ask the victim
Stark County, Case No. 2021 CA 00072 15
whether she was the spouse of the offender, [a trier of fact may] infer from the testimony
or circumstances, if sufficient, that a defendant and his victim are not married.’ ”), quoting
State v. Rainey, 2d Dist. Montgomery No. 23070, 2009-Ohio-5873, ¶ 30, citing State v.
Brown, 8th Dist. Cuyahoga No. 86577, 2006-Ohio-4584, ¶ 13. Here, A.B. testified that
Appellant was her mother’s boyfriend. A.B.’s mother testified likewise. Further, A.B.
testified that she was twelve years old when the sexual abuse took place. The legal age
to marry in Ohio is eighteen. R.C. §3101.01. Marriage of persons under the statutory age
is void in Ohio. We therefore find, to the extent that Appellant argues lack of evidence or
proof of the “not the spouse of the victim” element of the crimes, he cannot demonstrate
prejudice because, based upon the stated age of his victim she was not of marriageable
age in the state of Ohio. See R.C. §3101.01. There is no way that he could have asserted
at trial that he was the spouse of A.B. State v. Sloane, 7th Dist. Mahoning No. 06 MA 144,
2009-Ohio-1175, ¶ 49
{¶52} Based on this evidence, reasonable minds could reach different
conclusions as to whether the State proved beyond a reasonable doubt that A.B. and
Appellant were not married to each other. State v. Miller, 3rd Dist. Logan No. 8-19-02,
2019-Ohio-4121, ¶ 31; See also Muller at ¶ 82.
{¶53} Appellant also argues that there were inconsistencies between A.B.’s
testimony at trial and her forensic interview. While the jury may take note of
inconsistencies and resolve or discount them accordingly, such inconsistencies alone do
not render a conviction against the manifest weight or sufficiency of the evidence. State
v. Craig, 10th Dist. Franklin App. No. 99AP-739, 2000 WL 297252, (Mar. 23, 2000),
quoting State v. Nivens, 10th Dist. Franklin App. No. 95APA09-1236, 1996 WL 284714,
Stark County, Case No. 2021 CA 00072 16
(May 28, 1996). In a case involving inconsistencies in the testimony of a seven-year-old
child victim, this Court noted, “The jury was free to use their life experiences in assessing
the testimony of a child verses an adult and draw its conclusion.” State v. Allen, 5th Dist.
Stark No. 2021CA00051, 2022-Ohio-268, ¶ 31.
{¶54} It was for the jury to determine the credibility of the testimony, and in this
case, it is not patently apparent that the jury lost its way. Therefore, based on the evidence
before this Court, we find the jury did not create a manifest miscarriage of justice in finding
Appellant guilty of rape. Accordingly, we find Appellant's conviction is supported by
sufficient evidence and is not otherwise against the manifest weight of the evidence.
{¶55} Assignments of Error I and II are denied.
III.
{¶56} In his third assignment of error, Appellant argues he was denied a fair trial
due to prosecutorial misconduct. We disagree.
{¶57} Appellant identifies several instances which he asserts arise to
prosecutorial misconduct and otherwise deprived him of his due process rights due to: (1)
testimony regarding Appellant’s drug use, (2) evidence of prior specific instances of
Appellant’s sexual activity, (3) improper vouching for the victim’s credibility during closing
arguments, and (4) improper statements during closing arguments regarding the victim’s
actions after she testified.
{¶58} To address these arguments, we must first determine: (1) whether the
prosecutor's conduct was improper and (2) if so, whether it prejudicially affected
Appellant's substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883(1984). The inquiry is guided by four factors: (1) the nature of the remarks; (2) whether
Stark County, Case No. 2021 CA 00072 17
an objection was made by counsel; (3) whether corrective instructions were given by the
court; and (4) the strength of the evidence against the defendant. Sidney v. Walters, 118
Ohio App.3d 825, 829, 694 N.E.2d 132 (3d Dist.1997).
{¶59} Moreover, to the extent defendant did not object to allegedly improper
statements, all error is waived but for plain error. Slagle, 65 Ohio St.3d at 604, 605 N.E.2d
916. Reversal is warranted where the improper statements “pervade the trial to such a
degree that there was a denial of due process.” State v. Keenan, 66 Ohio St.3d 402, 410,
613 N.E.2d 203 (1993). When making this determination, we must consider the effect of
any misconduct in the context of the entire trial. Id. “The touchstone of this analysis is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209,
219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶60} Initially, Appellant argues that “despite Appellant’s motion in limine, the
Appellee presented evidence of Appellant’s prior bad acts by presenting evidence of his
drug use.” (Appellant’s Brief at 22).
{¶61} Here, we find that Appellant’s motion in limine addressed only certain
statements made by Appellant in his interview with law enforcement. The motion was
never supplemented, nor was a hearing ever requested. Rather, the parties stipulated to
a redacted version of the forensic interview on the issue. (T. at 170).
{¶62} Further, a motion in limine is tentative and precautionary in nature, reflecting
the court's anticipatory treatment of an evidentiary issue at trial. In deciding such motions,
the trial court is at liberty to change its ruling on the disputed evidence in its actual context
at trial. Finality does not attach when the motion is granted. State v. Grubb (1986), 28
Ohio St.3d 199, 201–202, 503 N.E.2d 142, 145.
Stark County, Case No. 2021 CA 00072 18
{¶63} Appellant objects to statements made by both Detective Lile and Melissa B.
about Appellant and Melissa having sexual intercourse. Detective Lile’s statements were
made in response to a question concerning what Appellant had told him in regard to the
nature of his relationship with Melissa. Det. Lile stated “[h]e said that they had sex,
intercourse, in his car, or in a car in the parking lot of Walmart when he was on break.”
(T. at 303).
{¶64} With regard to the testimony by Melissa B. that she and Appellant had
“smoked weed” together and “had sex a few times”, we find that such testimony was
unsolicited by the State and was not objected to by defense counsel. (T. at 250). When
Melissa made a further unsolicited statement that there were times when she “would pick
[Appellant] up and I thought we were getting weed, but he was getting coke, and I didn’t
know that at first”, defense counsel objected and the trial court sustained the objection.
(T. at 250-251). The trial court then instructed the jury to disregard the comment.
{¶65} It is well-established that juries are presumed to follow and obey the limiting
instructions given them by the trial court. State v. Davis, 5th Dist. Richland No. 14 CA 34,
2015-Ohio-889, 31 N.E.3d 1204, ¶54, citing State v. DeMastry, 155 Ohio App.3d 110,
127, 799 N.E.2d 229, 2003-Ohio-5588, ¶84; State v. Franklin (1991), 62 Ohio St.3d 118,
127, 580 N.E.2d 1 (1991); Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122
L.Ed.2d 317 (1993). “A presumption always exists that the jury has followed the
instructions given to it by the trial court.” Pang v. Minch, 53 Ohio St.3d 186, 187, 559
N.E.2d 1313 (1990), at paragraph four of the syllabus, rehearing denied, 54 Ohio St.3d
716, 562 N.E.2d 163. A curative instruction is presumed to be an effective remedy for the
introduction of improper statements during the course of a trial. See State v. Zeurn, 32
Stark County, Case No. 2021 CA 00072 19
Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). Moreover, a jury is presumed to follow the
court's curative instructions concerning improper comments. See State v. Ahmed, 103
Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93 (stating that the jury can be
presumed to have followed the court's instructions to disregard testimony).
{¶66} We further find that on cross-examination, defense counsel returned to the
testimony by asking Melissa:
Q: Okay. And I’m not trying to embarrass, but you testified, I think to
this, the two of you had been sexually active, correct?
A: Correct.
Q: In fact, you would go visit him on work breaks, correct?
A: Sometimes, yes.
Q. All right. And sometimes you smoked weed during those weed –
those work breaks.
A: Correct.
{¶67} (T. at 263-264).
{¶68} The invited error doctrine provides that “a party is not permitted to take
advantage of an error that he himself invited or induced the court to make.” Davis v. Wolfe,
92 Ohio St.3d 549, 552, 751 N.E.2d 1051 (2001). The doctrine of invited error precludes
a defendant from making an affirmative and apparent strategic decision at trial and then
complaining on appeal that the result of that decision constitutes reversible error. State v.
Wilson, 5th Dist. Muskingum No. CT 2019-0039, 2020-Ohio-1217, ¶ 20; See also State
v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶7, quoting United States v.
Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003).
Stark County, Case No. 2021 CA 00072 20
{¶69} We do not find that Appellant was unduly prejudiced by the references of
his sexual activity with Melissa, as the fact that he was in a relationship with her was
uncontroverted and was the reason he had access to A.B.
{¶70} Additionally, in defense counsel’s own opening statements to the jury, he
warned the jury, “Jason is not the best boyfriend in the world. Okay? You’re going to hear
he had a girlfriend at the time he’s seeing [A.B.’s] mom. He’s not relationship material,
but he’s not on trial for that. He is on trial for rape.” (T. at 200).
Rape Shield Law
{¶71} Appellant argues for the first time on appeal that the trial court should have
held a hearing under R.C. §2907.02, Ohio’s Rape Shield Law.
{¶72} Upon review of the record, we find Appellant failed to pursue his statutory
remedy under R.C. §2907.02(E) which provides:
Prior to taking testimony or receiving evidence of any sexual activity
of the victim or the defendant in a proceeding under this section, the court
shall resolve the admissibility of the proposed evidence in a hearing in
chambers, which shall be held at or before preliminary hearing and not less
than three days before trial, or for good cause shown during the trial.
{¶73} R.C. §2907.02(E); Young at ¶ 28.
{¶74} “[T]he Ohio Supreme Court has found that trial courts do not have a duty to
sua sponte hold a R.C. 2907.02(E) hearing.” Id. at ¶ 30, citing State v. Acre, 6 Ohio St.3d
140, 144, 451 N.E.2d 802 (1988), and State v. Evans, 8th Dist. Cuyahoga No. 85396,
2005-Ohio-3847. “A defendant may waive his statutorily granted right to such a hearing
Stark County, Case No. 2021 CA 00072 21
by failing to make a timely request for it.” Id., citing Evans at ¶ 74, citing Acre at 144, 451
N.E.2d 802.
{¶75} Appellant did not request a hearing before or during the trial. Therefore, we
find that Appellant “has waived his right to challenge the trial court's decision.” Young at
¶ 31, citing State v. Bugg, 8th Dist. Cuyahoga No. 74847, 1999 WL 777866, 1999 Ohio
App. LEXIS 4664 (Sept. 30, 1999); State v. Murphy, 8th Dist. Cuyahoga No. 107836,
2019-Ohio-4347, ¶¶ 98-100.
{¶76} Finally, Appellant argues that the prosecutor made improper statements
during his closing arguments:
{¶77} First, the prosecutor informed the jury:
{¶78} “And I’m not sure that many of you would have noticed, but as [A.B.] walked
out of the courtroom, she collapsed out onto the floor right outside of the court doors ---
sobbing.” (T. at 354).
{¶79} Counsel for Appellant objected and the court ordered the comments be
stricken and then instructed the jury to disregard. Id.{¶80} Next, the prosecutor improperly expressed his opinion that A.B. was a
credible witness, wherein he told the jury:
{¶81} “And as you go back and you consider the video, the medical report, and
any evidence and the testimony that was presented, keep that in mind, keep thinking:
[A.B.] was very credible. There’s no reason for her to make any of this up.” (T. at 358).
{¶82} Defense counsel objected to the above statement as improper witness
bolstering, and the trial court struck the statement. (T. at 358-359).
Stark County, Case No. 2021 CA 00072 22
{¶83} “ ‘A prosecutor may comment upon the testimony and suggest the
conclusion to be drawn by it, but a prosecutor cannot express his personal belief or
opinion as to the credibility of a witness or as to the guilt of an accused, or go beyond the
evidence which is before the jury when arguing for conviction.’ ” State v. Manns, 5th Dist.
Richland No. 08 CA 101, 2009-Ohio-3262, 2009 WL 1900432, ¶ 20, citing State v. Smith,
12th Dist. Butler No. CA2007–05–133, 2008-Ohio-2499, 2008 WL 2168427, ¶ 7. See also
State v. Stober, 3d Dist. Putnam No. 12–13–09, 2014-Ohio-1568, 2014 WL 1464226, ¶
133, citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 16.
{¶84} For example, a prosecutor “can bolster his own witnesses, and conclude by
saying, in effect, ‘The evidence supports the conclusion that these witnesses are telling
the truth.’ ” State v. Draughn, 76 Ohio App.3d 664, 670, 602 N.E.2d 790 (5th Dist.1992).
See also State v. Jeffery, 2d Dist., 2013-Ohio-504, 986 N.E.2d 1093, ¶ 20, citing Draughn.
However, a prosecutor “cannot say, ‘I believe these witnesses,’ because such argument
invades the province of the jury, and invites the jury to decide the case based upon the
credibility and status of the prosecutor.” Draughn at 670, 602 N.E.2d 790, citing State v.
Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). See also Jeffery at ¶ 20, citing Draughn.
{¶85} Here, upon review, while we find the prosecutor’s statements to be
troublesome, the trial court sustained the objections, instructed the jury to disregard the
statements and later instructed the jury that closing arguments were not evidence and
that the jury should not speculate on why the court sustained any objection. This limited
the potential for prejudice from any misconduct. State v. Dean, 146 Ohio St.3d 106, 2015-
Ohio-4347, 54 N.E.3d 80, ¶¶ 250, 253.
{¶86} Appellant’s third assignment of error is overruled.
Stark County, Case No. 2021 CA 00072 23
IV.
{¶87} In his fourth assignment of error, Appellant argues he was denied a fair trial
by the cumulative errors by the trial court. We disagree.
{¶88} In State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, the
Supreme Court of Ohio recognized the doctrine of cumulative error. Under the doctrine
of cumulative error, “[s]eparately harmless errors may violate a defendant's right to a fair
trial when the errors are considered together.” State v. Harris, 2d Dist. Montgomery No.
19796, 2004-Ohio-3570, ¶ 40, citing State v. Madrigal, 87 Ohio St.3d 378, 397, 721
N.E.2d 52 (2000). “In order to find cumulative error, we first must find that multiple errors
were committed at trial.” Id. “A conviction will be reversed when the cumulative effect of
errors in a trial deprives a defendant of a fair trial even though each of the numerous
instances of trial-court error does not individually constitute cause for reversal.” State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223, citing State v.
DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
{¶89} Here, Appellant bases his argument on the effect of errors concerning the
failure of the trial court to conduct a Rape Shield hearing, the allowance of testimony as
to Appellant’s sexual relationship with Melissa B. and his use of marijuana and cocaine,
and certain issues concerning the jury.
{¶90} This Court has previously addressed and found no harmful error as to the
failure to hold a Rape Shield hearing and the unsolicited testimony concerning Appellant’s
relationship and with Melissa B. and his use of drugs.
Stark County, Case No. 2021 CA 00072 24
Juror issues
{¶91} First, Appellant argues that the trial court erred in failing to sua sponte
dismiss Juror 54 because his step-daughter worked at the prosecutor’s office. When
asked if he could be fair and impartial, Juror 54 said that he could be. (T. at 87). Appellant
did not ask any questions of this juror and did not request that Juror 54 be excused for
cause nor did he exercise a peremptory challenge.
{¶92} Whether to disqualify a juror for cause is “a discretionary function of the trial
court * * * [not reversible] on appeal absent an abuse of discretion.” State v. Smith, 80
Ohio St.3d 89, 105, 684 N.E.2d 668, 685 (1997) citing Berk v. Matthews (1990), 53 Ohio
St.3d 161, 559 N.E.2d 1301, syllabus. “[T]he trial judge saw and heard” the prospective
jurors and could evaluate their responses. State v. Allen (1995), 73 Ohio St.3d 626, 629,
653 N.E.2d 675, 681. We find no abuse of discretion. See State v. Allard (1996), 75 Ohio
St.3d 482, 493–496, 663 N.E.2d 1277, 1287–1289. Furthermore, defendant waived any
potential error by failing to challenge the prospective jurors at trial. State v. Williams
(1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus,
vacated on other grounds by 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156.
{¶93} Appellant also argues that the trial court erred in not dismissing Juror 14 for
two separate reasons: (1) during deliberations she disclosed that she was struggling
because she had an uncle who was convicted of sexual assault against his youngest
daughter, and (2) a statement she made concerning the jury discussing if “ ‘We’re going
to imprison this man for life,’ blah, blah, blah, blah, blah.” (T. at 403). Juror 14 stated that
her experience did not impact her ability to be fair and impartial. (T. at 404, 406-407).
She explained that she was not even close with that side of her family and that it was just
Stark County, Case No. 2021 CA 00072 25
something she heard about from her mother. (T. at 407). The State moved for a mistrial
based on her statements that the jury was considering punishment as part of their
deliberations. (T. at 409). Counsel for Appellant opposed the motion for mistrial. Id. The
trial court denied the motion and re-read the instructions to the jury that related to
punishment. Counsel for Appellant then requested that Juror 14 be removed based on
her having family members who were both a perpetrator and a victim of the crime alleged.
(T. at 410). The trial court overruled the motion to excuse her, finding that “she clearly
indicated that the facts are very different and that she absolutely said she could be fair to
the Defendant and gave the Court no indication to the contrary.” (T. at 411).
{¶94} Based on the foregoing, we find no abuse of discretion.
{¶95} Finally, Appellant argues the trial court erred in not granting a mistrial based
on Juror 14’s statements. As stated above, counsel for Appellant opposed the State’s
motion for mistrial and under the invited error doctrine, this Court finds that Appellant
cannot now try to take advantage of that which he previously opposed.
{¶96} Where we have found that the trial court did not err, cumulative error is
simply inapplicable. State v. Carter, Stark App. No. 2002CA00125, 2003-Ohio-1313 at ¶
37. To the extent that we have found in this case that claimed error did not rise to the
level of plain error, we conclude that the cumulative effect of such claimed errors is also
harmless because taken together, they did not materially affect the verdict. State v.
Leonard, 104 Ohio St.3d 54, 818 N.E.2d 229, 2004-Ohio-6235 at ¶ 185.
{¶97} Appellant’s fourth assignment of error is overruled.
Stark County, Case No. 2021 CA 00072 26
V.
{¶98} In his fifth assignment of error, Appellant argues that he was denied the
effective assistance of counsel. We disagree.
{¶99} A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio
St.3d 153, 524 N.E.2d 476 (1988). A defendant asserting a claim of ineffective assistance of
counsel must establish: (1) the counsel's performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole,
92 Ohio St.3d 303, 306, 750 N.E.2d 148 (2001), citing Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show counsel's conduct was
deficient or unreasonable, the defendant must overcome the presumption that counsel
provided competent representation and must show that counsel's actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687, 104 S.Ct. 2052.
Counsel is entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d
267 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965(1995). Rather, the errors complained of must amount to a substantial violation of
counsel's essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141–42,
538 N.E.2d 373 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396, 358 N.E.2d 623(1976), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154(1978).
{¶100} “Prejudice results when ‘there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.’”
State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, 2014 WL 296002, ¶ 48, quoting
Stark County, Case No. 2021 CA 00072 27
Bradley at 142, 538 N.E.2d 373, citing Strickland at 691, 104 S.Ct. 2052. “ ‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’ ” Id., quoting
Bradley at 142, 538 N.E.2d 373 and citing Strickland at 694, 104 S.Ct. 2052.
{¶101} Appellant herein maintains trial counsel was ineffective for failing to
challenge Juror 54 for cause, failing to request a mistrial, and failing to object to
inadmissible hearsay and evidence violative of Ohio’s Rape Shield Law.
{¶102} For the reasons discussed in addressing the previous assignments of error, we
find Appellant's claims to be without merit, and counsel cannot be deficient for failing to raise
meritless claims. Appellant’s fifth assignment of error is overruled.
{¶103} For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas, Stark County, Ohio, is affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Gwin, J., concur.
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