State v. Stoffer , 2011 Ohio 5133 ( 2011 )

[Cite as State v. Stoffer, 2011-Ohio-5133.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09-CO-1
)
MICHAEL STOFFER, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Columbiana County, Ohio
Case No. 08CR250
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Robert Herron
Prosecuting Attorney
Timothy McNicol
Kyde L. Kelly
Assistant Prosecuting Attorneys
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant Attorney Douglas A. King
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44413
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 30, 2011
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DONOFRIO, J.
{¶1} Defendant-appellant Michael Stoffer appeals his jury-trial conviction and
fifteen-year prison sentence for two counts of gross sexual imposition and three
counts of illegal use of a minor in nudity-oriented material or performance.
{¶2} Tom and Sue, who have been married 38 years and have five adult
children and fourteen grandchildren, live in Leetonia, Ohio.1 (Tr. 353, 369, 386.) One
of their adult children, a son, and his wife have three children – T.P. (12 y.o.a.), A.P.
(7 y.o.a.), and B.P. (6 y.o.a.).2 (Tr. 353, 386.) The children’s parents became
involved in “street” drugs and Tom and Sue took legal and physical custody (by
agreement) of those three grandchildren in 2002. (Tr. 353-354.) Sue does not work
outside the home, but cares for the children on a daily basis. (Tr. 371.)
{¶3} In 2007, Tom’s friend, Stoffer, came to them in need of a place to stay
following an accident and injury. (Tr. 354.) Tom had been friends with Stoffer since
grade school. (Tr. 386.) They rented a bedroom in their home to him for $75 a
month. (Tr. 355.)
{¶4} Stoffer was not working, but received VA benefits. (Tr. 387-388.)
Stoffer regularly took part in family gatherings and spent a lot of time with the
grandchildren, and was generally treated as part of the family. (Tr. 349, 372, 376-
377, 403, 474-476.) A.P. and B.P. would spend time with Stoffer in his room. (Tr.
361-362, 372.) Stoffer kept a computer and digital camera in the room. (Tr. 360, 393,
476.) He would let them play games on his computer and allowed A.P. to use the
camera. A guitar which A.P.’s father had given her for her birthday was kept on a
shelf in the closet in his room out of her reach. (Tr. 365-366, 453.)
{¶5} Another of Tom and Sue’s five children, Karen, lives in her own home
directly behind her parents. (Tr. 342.) She has two children of her own, two young
boys – a 4-year-old and a 5-year-old. (Tr. 343.) Since they were next door
neighbors, Karen’s children would often play with T.P., A.P., and B.P. (Tr. 343.)
1. Tom and Sue’s last name has been withheld to protect the identity of the child victim in this case.
2. The children’s stated ages were their ages at the time of trial.
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Karen and her children would spend time in her parents’ house and in turn, Karen
would occasionally watch all of the children at her house when her mother went out
to the store or on errands. (Tr. 343, 346.)
{¶6} On July 2, 2008, the kids had been playing outside and then went into
Karen’s house to watch cartoons. (Tr. 343.) As she was in the kitchen doing dishes,
Karen overheard the children’s conversation. (Tr. 343.) A.P. asked Karen’s 5-year-
old boy to take his shirt off and then asked him to take his pants off. (Tr. 344.) She
then giggled and told him she was just kidding. (Tr. 344.) When Karen asked A.P.
why she had asked the 5-year-old to take his pants off, she replied that she was only
kidding. (Tr. 344.) At that point, B.P. spoke up and said he had seen Stoffer and A.P.
kissing. (Tr. 344-345.) When Sue returned from the store, Karen told Sue that she
needed to have a talk with A.P. (Tr. 345.)
{¶7} After talking with A.P., Sue had serious concerns about what had
occurred between A.P. and Stoffer and phoned Tom at work to relay those concerns
to him. (Tr. 356-357, 389.) Tom left work early and returned home. (Tr. 389.) Tom
confronted Stoffer and told him he had heard that he was “messing” with his
granddaughter. (Tr. 390.) Stoffer responded that he would never do anything like
that. (Tr. 390.) Tom then brought A.P. to Stoffer and had her recite the allegations to
him. (Tr. 391.) He again denied the allegations, but then indicated that he might
have pulled her pants down but forgot and that he had picked her up by her feet and
her underwear had fallen off. (Tr. 391.)
{¶8} Sue went to the Columbiana County Department of Job and Family
Services on July 7, 2008, to report what had occurred. (Tr. 315.) Laurie Jones, an
investigator with that department, went to Tom and Sue’s home the following day to
assess the safety of the children. (Tr. 315-316.) Since Tom and Sue had asked
Stoffer to leave the home and believed A.P.’s story, Jones determined that A.P. was
safe. (Tr. 316.)
{¶9} Jones returned to Tom and Sue’s home on July 18, 2008 for a follow-up
visit. (Tr. 316.) This time, she was accompanied by Dan Valentine, a part-time
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constable for the Salem Township Police Department. (Tr. 316.) Jones interviewed
T.P. and B.P. (Tr. 316.) Valentine interviewed and took statements from Sue and
Karen. (Tr. 226.) A.P. was not formally interviewed and was instead scheduled to be
seen at Tri-County Advocacy Center in Youngstown, Ohio. (Tr. 243, 316-317.) The
center is a medical clinic in which children who are suspected of being abused are
medically evaluated. (Tr. 243.)
{¶10} A.P. was evaluated at the center on July 22, 2008 by Dr. Paul
McPherson. (Tr. 245.) After he obtained her medical history, A.P. was then
interviewed by the center’s social worker, Diana Russo. (Tr. 346.) Dr. McPherson
and Laurie Jones observed the interview as it took place via closed circuit television.
(Tr. 246, 251, 317.) During the interview, A.P. disclosed that Stoffer had kissed her
“boobies.” (Tr. 249.) She also said that Stoffer touched her “private area” and that it
hurt after she “peed.” (Tr. 249.) She also explained the Stoffer put her hand on his
“private part” over his clothes and that Stoffer got on top of her and moved up and
down on her with his clothes on. (Tr. 250.) For the first time, she also revealed that
Stoffer had taken pictures of her “boobies” and “private spot.” (Tr. 250.)
{¶11} Valentine subsequently located Stoffer at a motel in North Lima. North
Lima is located in Beaver Township, Mahoning County, Ohio, where Valentine is also
a full-time police officer with the rank of corporal. (Tr.223.) Valentine obtained a
search warrant for Stoffer’s room in hopes of locating his computer and digital
camera. (Tr. 228.) Valentine, along with other members of the Beaver Township
Police Department and Laurie Jones, executed the warrant on July 25, 2008.
(11/07/2008 Suppression Hearing Tr. 8, Trial Tr. 228.) When it was apparent that
there were very few personal items of Stoffer’s found in the room or his vehicle,
Stoffer was asked where his belongings were and he indicated that they were in a
storage unit. (Tr. 232.) Stoffer gave the police consent to search the unit and they
recovered the camera they were looking for. (Tr. 232-233.)
{¶12} Valentine forwarded the camera to the Ohio Bureau of Criminal
Identification and Investigation. (Tr. 234.) There, forensic specialist Joann Gibb was
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able to view numerous pictures which had been deleted from the camera. (Tr. 274.)
Three of these pictures showed A.P. in various stages of nudity in Stoffer’s room at
Tom and Sue’s house. (Tr. 237-238, 275.)
{¶13} On August 20, 2008, a Columbiana County grand jury indicted Stoffer
on two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), third-
degree felonies, and three counts of illegal use of a minor in nudity-oriented material
or performance, in violation of R.C. 2907.323(A)(1), second-degree felonies. Stoffer
pleaded not guilty, the court appointed him counsel, and the case proceeded to
discovery and other pretrial matters.
{¶14} One of those pretrial matters which is relevant in this appeal is a motion
to suppress filed by Stoffer on October 31, 2008. Stoffer argued that no search
warrant had been provided in discovery and that if a search warrant was issued there
was no probable cause to justify its issuance. He also argued that no consent to
search form had been provided in discovery and that if there was one, his consent
was not validly obtained.
{¶15} The trial court held a hearing on the motion on November 7, 2008. The
state presented the testimony of Valentine who testified about the execution of the
search warrant and Stoffer’s consent to search the storage unit and subsequent
consent to search the memory of the computer and digital camera that were seized.
{¶16} On November 10, 2008, the trial court denied Stoffer’s motion to
suppress. The court reasoned that Stoffer was cooperative and voluntarily signed
both consent forms and voluntarily led the police officers to the camera and admitted
that the camera was his. The court found that there was no evidence of revocation of
any consents or any coercion or threats employed to get Stoffer to sign the consent
forms or to make the admissions that he did.
{¶17} On November 25, 2008, a Columbiana County grand jury returned a
superseding indictment charging Stoffer with the same offenses as before but adding
the mental state of purposely to the two counts of gross sexual imposition and adding
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the mental state of recklessly to the three counts of illegal use of a minor in nudity-
oriented material or performance.
{¶18} The case proceeded to a jury trial on December 8, 2008. After initial
instructions, a jury view of Tom and Sue’s home was conducted, in particular the
room Stoffer rented while he was there and where the pictures that formed the basis
of the illegal use of a minor in nudity-oriented material or performance counts were
taken. The state presented the testimony of those who investigated the case: Laurie
Jones, the investigator with the Columbiana County Department of Job and Family
Service who first interviewed A.P.’s family and who witnessed the formal interview at
the Tri-County Advocacy group; Dan Valentine, the part-time constable of Salem
Township where the crimes occurred and a full-time police officer in Beaver
Township where Stoffer was located and where the digital camera was recovered
which yielded the pictures that formed the basis of the illegal use of a minor in nudity-
oriented material or performance counts; Dr. Paul McPherson, who evaluated A.P. at
the Tri-County Advocacy Center; and Joann Gibb, the forensic specialist with the
Ohio Bureau of Criminal Identification and Investigation that recovered the illicit
pictures from Stoffer’s digital camera. The state also presented the testimony of A.P.
and her family, including her grandparents, Tom and Sue, her aunt Karen, and her
brother, B.P. Various pictures including the three nude pictures taken of A.P. were
admitted as evidence. Stoffer testified in his own defense. He described how A.P.’s
pants may have fell down while playing, explained that he only gave the children
“goodnight” kisses, and denied rubbing up against A.P. or taking nude pictures of
her.
{¶19} On December 9, 2008, the jury returned verdicts of guilty on all five
counts contained in the indictment. On December 17, 2008, the trial court sentenced
Stoffer to five years in prison on each of the gross sexual imposition counts to be
served consecutively to each other and five years in prison on each of the illegal use
of a minor in nudity-oriented material or performance counts to be served
concurrently with each other but consecutively with the sentence for the gross sexual
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imposition counts for an aggregate sentence of fifteen years. The trial court also
designated Stoffer a Tier II Sex Offender/Child Victim Offender pursuant to R.C.
Chapter 2950, and was advised of his duty to register under the statute. This appeal
followed.
{¶20} Stoffer raises fifteen assignments of error. Stoffer’s first assignment of
error states:
{¶21} “THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT/APPELLANT’S MOTION TO SUPPRESS EVIDENCE[.]”
{¶22} Stoffer contends that when the police officers executed the search
warrant at his hotel room he was placed in handcuffs. When they were unable to
locate the digital camera they were looking for and questioned him about its location,
he revealed that it was in a storage unit. Stoffer characterizes the encounter as a
custodial interrogation. Since the police did not read him his Miranda rights, he
argues that his revelation about the location of the digital camera and the pictures
recovered from it are physical evidence obtained as a result of unwarned statements
and, thus, are inadmissible.
{¶23} In response, the state points out that in his motion to suppress and at
the hearing on the motion Stoffer never challenged the evidence on the basis of the
police officer’s failure to read him his Miranda rights. The state contends the hearing
was confined to whether there was an unreasonable search and seizure (i.e.
warrantless) and whether there was valid consent given by Stoffer.
{¶24} This court has observed that a defendant’s failure to raise an issue in a
motion to suppress constitutes a waiver of that issue on appeal. State v. Roskovich,
7th Dist. No. 04 BE 37, 2005-Ohio-2719, ¶13, citing State v. Peagler (1996), 76 Ohio
St.3d 496, 500, 668 N.E.2d 489. A review of Stoffer’s motion to suppress reveals
that the Miranda issue was not raised in the motion. The motion set forth only two
specific grounds. The first was that the state had failed to produce a search warrant
in discovery and that there was no probable cause to justify the search. The second
was that no valid consent to search was given by Stoffer. At the hearing on the
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motion, the only person to testify was Officer Dan Valentine. During his testimony,
the state provided Stoffer’s attorney with a copy of the search warrant and a copy of
the consent to search form. Stoffer’s attorney’s cross-examination of Valentine
simply focused on who was present when the warrant and consent to search were
presented to Stoffer and whether the consent-to-search form was explained to him.
Since Stoffer never raised the Miranda issue below either in his motion or at the
hearing on the motion, he waived that issue on appeal.
{¶25} We are left only to examine the propriety of the trial court’s decision
based on the two grounds that were presented to it in Stoffer’s suppression motion.
The standard of review in an appeal of a suppression issue is two-fold. State v.
Dabney, 7th Dist. No. 02BE31, 2003-Ohio-5141, at ¶9, citing State v. Lloyd (1998),
126 Ohio App.3d 95, 100-101, 709 N.E.2d 913. Since the trial court is in the best
position to evaluate witness credibility, an appellate court must uphold the trial court’s
findings of fact if they are supported by competent, credible evidence. Id., citing State
v. Winand (1996), 116 Ohio App.3d 286, 288, 688 N.E.2d 9, citing Tallmadge v.
McCoy (1994), 96 Ohio App.3d 604, 608, 645 N.E.2d 802. However, once an
appellate court has accepted those facts as true, the court must independently
determine as a matter of law whether the trial court met the applicable legal standard.
Id., citing State v. Clayton (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906. This
determination is a question of law of which an appellate court cannot give deference
to the trial court’s conclusion. Id., citing Lloyd.
{¶26} The first ground set forth in Stoffer’s suppression motion was that the
state had failed to produce a search warrant in discovery and that there was no
probable cause to justify the search. At the suppression hearing, the prosecutor
provided Stoffer’s defense counsel with a copy of the search warrant. In addition,
Officer Valentine testified that Stoffer was present at the motel when they went to
execute the warrant and that Stoffer was given a copy of the search warrant at that
time. (11/07/2008 Suppression Hearing Tr. 9-10, 17.) Moreover, the only
incriminating physical evidence there was in this case was Stoffer’s digital camera
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and the images retrieved from it. The search warrant was limited to Stoffer’s motel
room and his vehicle. The digital camera was not retrieved from either of those
locations, but from a storage unit Stoffer had rented nearby. Since there was a
signed written consent by Stoffer to search that unit, the underlying probable cause
for the search warrant, which did not yield any incriminating evidence, was irrelevant.
{¶27} That brings us to the second ground set forth in the suppression motion
which was that no valid consent to search was given by Stoffer. Again, Officer
Valentine was the only person to testify at the suppression hearing. Stoffer did not
testify. Officer Valentine testified that Stoffer executed a written consent to search
the storage unit where the digital camera was located. (11/07/2008 Suppression
Hearing Tr. 11-12.) Stoffer opened the storage unit himself, was present the entire
time the officers searched it, and at no time revoked his consent. (11/07/2008
Suppression Hearing Tr. 11-12.) Based on the evidence presented, we agree with
the trial court’s conclusion that Stoffer gave valid consent to police to search the
storage unit.
{¶28} Based on the foregoing and limited to the two grounds raised by
Stoffer’s suppression motion, the trial court did not err in overruling the motion.
{¶29} Accordingly, Stoffer’s first assignment of error is without merit.
{¶30} Stoffer’s second assignment of error states:
{¶31} “THE TRIAL COURT ERRED IN FINDING [B.P.] COMPETENT TO
TESTIFY AND IN FINDING [A.P.] COMPETENT TO TESTIFY.”
{¶32} Stoffer contends that pursuant to Evid.R. 601(A) a child witness under
the age of ten is not competent to testify if they appear incapable of receiving or
relating facts properly. Stoffer points out that A.P.’s brother, B.P., who was six years
old when he testified at the November 26, 2008 voir dire on the issue of competence,
incorrectly stated that the next day would be Christmas. Stoffer states that B.P. also
testified that he did not know his address, his birthday, his grandmother’s name, what
school he attended, what grade he was in, what grade he was in the previous year,
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and what house he lived in the previous year. Stoffer also points out that B.P.
described trips to the county fair and to a park as his vacation.
{¶33} As for A.P., Stoffer contends her age at the time of voir dire was never
established and that she did not know her own birthday or the name of her teacher
from the previous year.
{¶34} In response, the state maintains that the trial court properly determined
through the questioning of the children that they were capable of receiving just and
truthful impressions of facts and events and that they were able to accurately relate
them. Nevertheless, the state argues that since Stoffer never objected to the
introduction of the children’s testimony any error arising therefrom does not rise to
the level of plain error.
{¶35} Since Stoffer failed to object to the trial court’s competency
determination or the introduction of the children’s testimony at trial, this court reviews
this issue only for plain error. Crim.R. 52(B); In re Williams (1997), 116 Ohio App.3d
237, 241, 687 N.E.2d 507. To prevail on a claim governed by the plain error
standard, an appellant must demonstrate that the trial outcome would have been
clearly different but for the alleged errors. State v. Waddell (1996), 75 Ohio St.3d
163, 166, 661 N.E.2d 1043.
{¶36} Generally, an appellate court reviews a trial court’s determination of
whether a child is competent to testify for an abuse of discretion. State v. Frazier
(1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483. This is because the court has the
opportunity to observe the child’s appearance, manner of responding to questions,
demeanor, and any indicia of ability to relate facts accurately and truthfully. Id.Abuse of discretion connotes more than an error of law or judgment; it implies that
the trial court’s attitude was arbitrary, unreasonable, or unconscionable. State v.
Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331.
{¶37} Evid.R. 601(A) provides that “[e]very person is competent to be a
witness except: (A) Those of unsound mind, and children under ten years of age,
who appear incapable of receiving just impressions of the facts and transactions
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respecting which they are examined, or of relating them truly.” Thus, the trial court
must make a determination of whether a child under ten is competent to testify.
When making this determination the court must consider:
{¶38} “(1) the child’s ability to receive accurate impressions of fact or to
observe acts about which he or she will testify, (2) the child’s ability to recollect those
impressions or observations, (3) the child’s ability to communicate what was
observed, (4) the child’s understanding of truth and falsity, and (5) the child’s
appreciation of his or her responsibility to be truthful.” Frazier, 61 Ohio St.3d at 251,
574 N.E.2d 483.
{¶39} Commenting on the Frazier considerations, the Ohio Supreme Court
later stated:
{¶40} “Those characteristics can be broken down into three elements. First,
the individual must have the ability to receive accurate impressions of fact. Second,
the individual must be able to accurately recollect those impressions. Third, the
individual must be able to relate those impressions truthfully.” State v. Said (1994),
71 Ohio St.3d 473, 476, 644 N.E.2d 337.
{¶41} In this case, although the children could not relay certain details about
their lives, they still demonstrated that they were competent to testify. As for B.P., he
indicated that he knew that telling the truth was a rule of court. (Tr. 10.) He
understood that breaking a rule had consequences. (Tr. 10.) For example, he stated
that if he broke a rule at home he would be spanked. (Tr. 10.) He also demonstrated
that he understood what telling the truth meant. (Tr. 12.) Although he was unsure of
what holiday was the next day (Thanksgiving), he knew that saying the female court
reporter was a boy was not the truth. (Tr. 11-12.) He was able to tell the court that
his favorite television program was Sponge Bob and that saying Sponge Bob (who is
a boy) was a girl was not the truth. (Tr. 12.) He knew that he lived in Leetonia and
that he lived with “Grandma.” (Tr. 13.) He knew his sister’s name and her age. (Tr.
14.) Although he could not relate his exact birthdate, he was able to recall his
favorite present that he got for his birthday the previous year. (Tr. 14.) He was able
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to tell the court his favorite present that he received the previous Christmas. (Tr. 15.)
He was able to relate his teachers’ names from the previous year and the current
year, as well as what grade he was in. (Tr. 16-17.) B.P.’s answers established that
he could not only accurately receive and recollect impressions of fact, but that he
could also relate those impressions truthfully.
{¶42} As for A.P., she also stated that she understood the need to tell the
truth in court. (Tr. 23.) As with B.P., she related that the consequences of not telling
the truth at home resulted in being spanked. (Tr. 23.) She stated that she
understood that the judge could put her in jail for not telling the truth in court. (Tr. 24.)
She understood that saying she was a boy or that the male assistant prosecutor was
a girl were examples of not being truthful. (Tr. 23.) She was able to relate what grade
she was in and the name of her teacher. (Tr. 24.) Like B.P., she was able to recall
her favorite presents from last Christmas and her last birthday. (Tr. 26-27.) A.P.’s
answers reflected that she too could accurately receive and recollect impressions of
fact, and relate those impressions truthfully.
{¶43} Accordingly, Stoffer’s second assignment of error is without merit.
{¶44} Stoffer’s third assignment of error states:
{¶45} “THE TRIAL COURT ERRED IN FAILING TO SEVER THE FIVE (5)
COUNTS OF THE SUPERCEDING [sic] INDICTMENT FOR PURPOSES OF
TRIAL.”
{¶46} Stoffer argues that the trial court abused its discretion in joining the
counts for trial, contending that the factual situation of each crime was identical and
not easily capable of segregation. Stoffer also notes that the crimes involved the
same victim, factual situations, and witnesses. Stoffer argues that prejudice in joining
the counts was demonstrated by the assistant prosecutor suggesting to the jury in his
opening statement that they should believe the two counts of gross sexual imposition
because of the three pictures which gave rise to the three counts of illegal use of a
minor in nudity-oriented material or performance.
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{¶47} In response, the state argues that Stoffer waived this alleged error
because he did not request severance below in the trial court.
{¶48} Stoffer failed to move for separate trials after the grand jury issued the
superseding indictment. As mentioned before, an appellant’s failure to raise an error
in the trial court constitutes a waiver of that issue on appeal unless it rises to the level
of plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 13, 444 N.E.2d 1332.
Thus, this court reviews the trial court’s failure to grant separate trials for plain error.
{¶49} Crim.R. 8(A) provides that two or more offenses may be charged in the
same indictment if the offenses are (1) of the same or similar character, or (2) are
based on the same act or transaction, or (3) are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan,
or (4) are part of a course of criminal conduct.
{¶50} The law favors joining multiple criminal offenses in a single trial under
Crim.R. 8(A). State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293, 298.
Two or more offenses can be joined if they are of the same or similar character. State
v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 314-315, 421 N.E.2d 1288,
1290.
{¶51} In this case, all of the offenses charged in Stoffer’s indictment were of
the same or similar character. The offenses charged were gross sexual imposition
and illegal use of a minor in nudity-oriented material or performance. Thus, it was
proper to join all of the offenses in one indictment.
{¶52} Crim.R. 14 provides that if it appears that a defendant is prejudiced by a
joinder of offenses in an indictment for trial, the court shall order an election or
separate trial of counts or provide such other relief as justice requires.
{¶53} If a defendant claims the court erred in refusing to allow separate trials
of multiple charges, he has the burden of affirmatively showing that his rights were
prejudiced. State v. Torres (1981), 66 Ohio St.2d 340, 343, 421 N.E.2d 1288. “When
a defendant claims that he was prejudiced by the joinder of multiple offenses, a court
must determine (1) whether evidence of the other crimes would be admissible even if
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the counts were severed, and (2) if not, whether the evidence of each crime is simple
and distinct.” State v. Schaim (1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661.
{¶54} In this case, the evidence of each crime was simple and distinct. The
three photographs were each taken within seconds of each other as evidenced by
the time stamp on each photograph. A.P. testified that Stoffer had touched her
breasts and vagina, and that he had also taken pictures of those areas. Under these
circumstances, the trial court did not err in joining the five counts for trial. Nor is it
apparent that the outcome of the trial would clearly have been otherwise.
{¶55} Accordingly, Stoffer’s third assignment of error is without merit.
{¶56} Stoffer’s fourth assignment of error states:
{¶57} “THE TRIAL COURT ERRED WHEN IT ADMITTED INADMISSIBLE
HEARSAY TESTIMONY OF DR. MCPHERSON.”
{¶58} Dr. Paul McPherson evaluated A.P. at the Tri-County Advocacy Center.
After Dr. McPherson conducted a physical examination of A.P., Diane Russo, a
social worker, interviewed A.P. in another room. Although not in the room where A.P.
was interviewed, Dr. McPherson watched the interview live via closed circuit
television. At trial, the court permitted Dr. McPherson, over objection, to testify about
what A.P. told Russo. Dr. McPherson testified that A.P. told Russo that Stoffer had
kissed her breasts, touched her private area which resulted in pain when she
urinated, and that he went up and down while lying on top of her.
{¶59} Stoffer argues the Dr. McPherson’s testimony constituted hearsay and
that the trial court erred in allowing its admission. Stoffer contends that the only
possible hearsay exception would be Evid.R. 803(4), concerning statements for
purposes of medical diagnosis or treatment. However, Stoffer argues that the
exception does not apply here because Dr. McPherson was not in the room,
removing the guarantee of trustworthiness upon which the exception is based.
{¶60} In response, the state argues that the statements made by A.P. and
testified to by Dr. McPherson were made for purposes of medical treatment and,
therefore, fall within the hearsay exception set forth in Evid.R. 803(4).
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{¶61} Evid.R. 803 provides certain exceptions to the hearsay rule. Evid.R.
803(4) provides:
{¶62} “The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
{¶63} “* * *
{¶64} “(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.”
{¶65} When a child sex abuse victim is taken to an advocacy center, it is not
uncommon for the child to be subject to a physical exam by a doctor separate from
an interview conducted by a social worker. Nor is it uncommon for a doctor or others
to view the interview via closed circuit television and then testify about what they
heard during the interview at trial. Despite the contents of the interview constituting
hearsay, the testimony is admissible under the hearsay exception set forth in Evid.R.
803(4) as long as the interview was conducted for the purpose of medical diagnosis
or treatment. State v. Griffith, 11th Dist. No. 2001-T-0136, 2003-Ohio-6980, ¶52-82.
See, also, State v. Gilfillan, 10th Dist. No. 08AP-317, 2009-Ohio-1104, ¶74-79; State
v. Arnold, 10th Dist. No. 07AP-789, 2008-Ohio-3471, ¶ 35-39; Ferguson at ¶34-42;
State v. D.H., 10th Dist. No. 07AP-73, 2007-Ohio-5970, ¶38-48; State v. Jordan, 10th
Dist. No. 06AP-96, 2006-Ohio-6224, ¶ 17-21; State v. Edinger, 10th Dist. No. 05AP-
31, 2006-Ohio-1527, ¶53-64.
{¶66} Moreover, the Ohio Supreme Court has held that “[s]tatements made to
interviewers at child-advocacy centers that are made for medical diagnosis and
treatment are nontestimonial and are admissible without offending the Confrontation
Clause.” (Emphasis added.) State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742,
933 N.E.2d 775, paragraph two of the syllabus.
{¶67} In this case, Dr. McPherson testified as follows:
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{¶68} “Q. Now is part of your job at the Tri-County Children’s Advocacy
Center to diagnose and treat victims of abuse?
{¶69} “A. Yes. That’s our main clinical responsibility there.
{¶70} “Q. And in order to achieve that responsibility is it important to obtain
an accurate history from the patient?
{¶71} “A. Yes, that is one of the big aspects of making a diagnosis of child
sexual abuse, is the history that the child provides.
{¶72} “We also talk to the parents, or the non-offending caregiver, about any
other medical conditions they may have that may confuse us.
{¶73} “We also do a physical exam on the child. And then afterwards we
recommend testing for sexually transmitted diseases, if we need to. And then
typically recommend therapy.
{¶74} “Q. Now did you see [A.P.] yourself, personally?
{¶75} “A. Yes. I examined [A.P.] personally.
{¶76} “Q. Do you also take a history, or are you present when a history is
obtained?
{¶77} “A. Yes, we take essentially two histories. I first talk to the caregiver
that brought the child in, and ask them basic medical history questions; medications
they’re on. Are they allergic to any medications? Have they injured their private
parts previously, that required a visit to the doctor or hospital?
{¶78} “And then afterwards, the child herself was interviewed by Diane
Russo, our social worker. During that interview I actually observe that in real time in
a different room, but via closed circuit television.
{¶79} “Q. And do you use all of that information then to properly examine
and diagnose the patient?
{¶80} “A. Yes. Obtaining a history from the child is critical so we know
what kind of exam we need to do, so, we know what kind of labs or test studies that
we need to do, as well. And then again, for mental health and therapy counseling,
- 17 -
we need all of that information to make a diagnosis and proper management.” (Tr.
245-246.)
{¶81} As the aforementioned testimony reveals, the statements A.P. made at
the Tri-County Advocacy Center, including those to Russo and observed in real time
by Dr. McPherson via closed circuit television, were made for purposes of medical
diagnosis or treatment.
{¶82} Accordingly, Stoffer’s fourth assignment of error is without merit.
{¶83} Stoffer’s fifth assignment of error states:
{¶84} “THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION
IN LIMINE AS FILED ON DECEMBER 9, 2008, PREVENTING THE
DEFENDANT/APPELLANT FROM CALLING WITNESS KEMATS TO TESTIFY AS
TO [A.P.’S] PRIOR ALLEGATIONS OF SEXUAL ABUSE.”
{¶85} Stoffer proffered the testimony of Jamie Kemats, a guidance counselor
at A.P.’s school. She testified that in January 2008 A.P.’s brother B.P. had reported
that another student touched A.P. in gym class. Kemats interviewed A.P. about the
incident and confirmed B.P.’s report. The police were summoned and Kemats later
learned from the principal that the five-year-old offender admitted to the incident and
was removed from the school.
{¶86} Because the incident was of the same nature and occurred around
the same time as the crimes charged in the superseding indictment, Stoffer argued
that the jury should know about it. The trial court determined that since the incident
actually did occur, it fell within the rape shield statute and could not go before the
jury.
{¶87} Ohio’s rape shield provision provides:
{¶88} “Evidence of specific instances of the victim’s sexual activity, opinion
evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual
activity shall not be admitted under this section unless it involves evidence of the
origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the
offender, and only to the extent that the court finds that the evidence is material to a
- 18 -
fact at issue in the case and that its inflammatory or prejudicial nature does not
outweigh its probative value.” R.C. 2907.05(E).
{¶89} It is a well recognized constitutional principle that “(t)he rights to
confront and cross-examine witnesses and to call witnesses in one’s own behalf have
long been recognized as essential to due process.” Chambers v. Mississippi (1973),
410 U.S. 284, 294-95, 93 S.Ct. 1038, 35 L.Ed.2d 297.
{¶90} Several legitimate state interests are advanced by the shield law: (1)
guarding the complainant’s sexual privacy and protecting them from undue
harassment; (2) discouraging the tendency in rape cases to try the victim rather than
the defendant; (3) encouraging the reporting of rape, thus aiding crime prevention;
(4) and aiding the truth-finding process by excluding evidence that is unduly
inflammatory and prejudicial, while being only marginally probative. State v. Gardner
(1997), 59 Ohio St.2d 14, 17-18, 391 N.E.2d 337.
{¶91} In determining whether the rape shield law has been
unconstitutionally applied in any particular instance, the court must thus balance the
state interest which the statute is designed to protect against the probative value of
the excluded evidence. State v. Gardner (1997), 59 Ohio St.2d 14, 17, 391 N.E.2d
337.
{¶92} Stoffer argues that the application of the rape shield law in his case
infringed on his ability to present a defense. Stoffer relies on In re Michael (1997),
119 Ohio App.3d 112, 694 N.E.2d 538, in support. In Michael, a juvenile defendant
was adjudicated delinquent by reason of rape, attempted rape, and gross sexual
imposition of an eight-year-old foster child who had been placed in his home and with
whom he shared a bedroom. At trial, a clinical psychologist who evaluated the victim
testified that there were three criteria he used to determine if a child had been
sexually abused, one of which was the degree to which the child is conversant in
sexual matters compared to “ordinary” children. Michael wanted to present evidence
that the victim had been sexually abused prior to being placed in his home and that
another person had been convicted of sexually abusing the victim in the identical
- 19 -
manner in which he had been accused of sexually abusing the victim. On appeal,
Michael argued that the trial court erred in applying the rape shield law to exclude
that evidence because it prevented him from showing an alternative source of the
victim’s knowledge of sexual conduct or activity.
{¶93} In a matter of first impression for the Second District Court of Appeals,
the court observed that the average fact-finder would consider an eight-year-old to be
a “sexual innocent” and would be more likely to believe the sexual experience they
described in connection with the crime being prosecuted because they otherwise
could have not described it. The court found that because an expert (i.e., the clinical
psychologist) had testified that the victim’s advanced knowledge of sexuality was an
indicator of sexual abuse, it was probative for the jury to know that the victim had
previously been victimized in a similar manner by another because the victim was of
such a young age that their knowledge of sexuality was inappropriate.
Consequently, the court held that the exclusion of all evidence of a victim’s prior
sexual abuse under those circumstances infringed on the defendant’s constitutional
right to present a necessary and critical element of his defense and was
unreasonable and constituted an abuse of discretion. However, because the
defendant’s trial counsel was able to elicit testimony about the victim’s prior sexual
abuse from cross-examination of the clinical psychologist and a children services
caseworker, the court effectively deemed it harmless error and affirmed the
adjudication.
{¶94} We disagree with Michael to the extent that it stands for the
proposition that the rape shield law has any application to prior sexual abuse suffered
by a child victim. In construing the rape shield statute, “our paramount concern is the
legislative intent” in enacting it. State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355,
2004-Ohio-4960, 815 N.E.2d 1107, ¶21. To discern this intent, we must “read words
and phrases in context according to the rules of grammar and common usage.” State
ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶23.
Ohio’s rape shield law prohibits evidence of “specific instances of the victim’s sexual
- 20 -
activity” unless one of four exceptions applies. The statute’s reference to “specific
instances of the victim’s sexual activity” connotes volitional activity by the victim with
another and not involuntary activity such as that which would stem from being
subjected to sexual abuse.
{¶95} This interpretation of Ohio’s rape shield statute is supported by the
General Assembly’s use of the “victim’s sexual activity” throughout that provision.
The statute specifically prohibits opinion and reputation evidence of the victim’s
sexual activity. Opinion and reputation evidence are methods of proving character.
Evid.R. 405. Character is generally thought to include qualities, like honesty and
integrity,3 over which that person has control. Therefore, when the General
Assembly sought to protect a victim from opinion and reputation evidence, it was
contemplating evidence of a victim’s sexual history over which they had control.
{¶96} The state interests identified by the Ohio Supreme Court in Gardner,
supra, which are advanced by the rape shield law also support this understanding of
the “victim’s sexual activity.” It is hoped that guarding the victim’s sexual privacy and
protecting them from undue harassment encourages the reporting of rape, thus
aiding crime prevention. Interpreting the rape shield statute to exclude evidence of
past sexual abuse does not further these state interests. While sexual abuse victims
may very understandably be reluctant to disclose past instances of sexual abuse,
that discomfort is different from the undue harassment that rape shield statutes were
enacted to protect against – undue harassment that may be caused by the revelation
of one’s own history of questionable voluntary or consensual sexual activity.
{¶97} The rape shield law also was intended to prevent a defendant from
exploiting a victim’s sexual history to imply consent in the defendant’s case. State v.
Ray (June 11, 1992), 10th Dist. No. 91AP-1290. Since in this case defense counsel
sought to introduce evidence that the victim had previously been sexually abused by
a person other than the defendant, such evidence cannot be similarly exploited by
3. character. Dictionary.com. Dictionary.com Unabridged. Random House, Inc.
http://dictionary.reference.com/browse/character (accessed: August 31, 2011).
- 21 -
the defendant. Moreover, given that gross sexual imposition involving a victim under
the age of thirteen is a strict liability offense in Ohio, State v. Salinas, 10th Dist. No.
09AP-1201, 2010-Ohio-4738, at ¶16, consent of the child victim be would unavailable
as a defense. See R.C. 2907.05(D).
{¶98} Based on the foregoing, we construe that the legislative intent of
Ohio’s rape shield law was to address only past consensual sexual activity of the
victim and not prior sexual abuse suffered by the victim. Therefore, the rape shield
statute has no application in this case and the trial court erred in applying it.
{¶99} The question then becomes whether the exclusion of evidence of
A.P.’s prior sexual abuse unconstitutionally infringed on Stoffer’s ability to present a
defense. The right of a criminal defendant to confront and cross-examine a witness
on relevant matters is secured in the Sixth Amendment to the United States
Constitution. Delaware v. Van Arsdall (1986), 475 U.S. 673, 89 L.Ed.2d 674, 682-83.
However, “trial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only marginally relevant.”
(Emphasis added.) Id.{¶100} “Relevant evidence” is any evidence that tends to make the existence
of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. Evid.R. 401. Generally, all relevant
evidence is admissible. Evid.R. 402. Relevant evidence may be inadmissible,
however, if its probative value is substantially outweighed by the danger of unfair
prejudice. Evid.R. 403.
{¶101} In this case, evidence of the prior sexual abuse was not relevant. In
his opening statement, the prosecutor never suggested that A.P.’s age-inappropriate
sexual knowledge was proof that that A.P. was telling the truth. Rather, the
prosecution relied on the photographs recovered from Stoffer’s digital camera
depicting A.P. in various stages of nudity in Stoffer’s bedroom to bolster A.P.’s
- 22 -
credibility. While Dr. McPherson did testify that A.P.’s sexual knowledge must have
been derived from specific experiences, he also testified that she was
developmentally appropriate for her age:
{¶102} “Q. Would you please summarize for the jury the history that you
provided and relied upon in regards to [A.P.]?
{¶103} “A. Yes. The history that we relied upon, apart from her past
medical history, was an interview of the child.
{¶104} “And when we interview children we do a couple of things; first of all
we want to make sure the child was developmentally appropriate, or that they
understand their colors, they understand body parts, that they understand what
inside and outside means. So we-- we make sure that the child is developmentally
appropriate for her age. And [A.P.] was developmentally appropriate for her age.
{¶105} “Q. What’s the next step?
{¶106} “A. Then typically what we do is we make sure they understand
body parts, because children use different terms for body parts. We hear all kinds.
And we wanted to make sure when she said something we knew what she meant.
And so, she identified for us her private parts.
{¶107} “(Thereupon, Attorney McNicol marked for purposes of identification
as State’s Exhibit Number 15, being two anatomical drawings.)
{¶108} “Q. (By Attorney McNicol.) I’m going to hand you what I have
marked as State’s Exhibit Number 15. Do you -- do you recognize those two
documents?
{¶109} “A. Yes, I do.
{¶110} “Q. What are they?
{¶111} “A. These documents are-- are photocopied from the medical chart
in which the originals are kept. And these are the, what we call anatomical drawings
that were used when, uh, [A.P.] was interviewed at our center.
{¶112} “Q. And there are some labeling on those documents, is there not?
{¶113} “A. Yes, there is.
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{¶114} “Q. What-- what is the labeling?
{¶115} “A. Uh, [A.P.] identified the female chest region as boobies; she
identified the vaginal area as the private spot. And then the anal region on the
female as a butt. And then on the male anatomical drawing she identified the male
penis as a private.
{¶116} “Q. Was she spoken to specifically about the -- the abuse involving
this Defendant, Mike?
{¶117} “A. Yes. When we-- when we interviewed her after we obtain that
she’s developmentally appropriate, and we understand what terms she uses for
private parts, we give the child the opportunity to tell us what happened. And we do
it in a way where we don’t make any presumptions. We want to make sure that
someone hasn’t misunderstood the child, or the child said something that was really
an innocent type of interaction. So, we approach the interview that way. We keep
our mind open.
{¶118} “And then we also ask questions in a way where we’re not suggesting
the child anything, or we’re not putting things in the child’s mind.
{¶119} “And so by taking that type of approach we allow the child to tell us
their story. * * *” (Tr. 246-249.)
{¶120} Dr. McPherson then went on to relate A.P.’s very specific statements
concerning Stoffer’s sexual abuse of her.
{¶121} Lastly, even though we have determined that it ultimately was not
error for the trial court to exclude the evidence of prior sexual abuse, albeit for
different reasons, its exclusion would otherwise have been harmless error. Unlike in
Michael, here there was independent, physical evidence indicating that inappropriate
contact had occurred between A.P. and Stoffer. There was evidence presented that
three photographs were retrieved from Stoffer’s digital camera showing A.P. in
various stages of nudity.
{¶122} Accordingly, Stoffer’s fifth assignment of error is without merit.
{¶123} Stoffer’s sixth assignment of error states:
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{¶124} “THE TRIAL COURT ERRED IN PERMITTING WITNESS GIBBS
AND WITNESS DR. MCPHERSON TO TESTIFY AS EXPERTS.”
{¶125} Stoffer argues that despite not being qualified as an expert and the
absence of any finding that Dr. McPherson or JoAnn Gibbs was an expert, they
nonetheless proceeded to state their opinion as such. Concerning Dr. McPherson,
Stoffer cites two examples of his testimony in support. First, Dr. McPherson testified
that it was his expert opinion that a seven year old would not know the details of the
sexual contact that was alleged to have occurred unless she had experienced it. (Tr.
250.) Second, Dr. McPherson opined that this was a case of sexual abuse within a
reasonable degree of medical certainty. (Tr. 253.) Concerning JoAnn Gibbs, Stoffer
refers to her testimony about the retrieval and authentication of the pictures retrieved
from his digital camera.
{¶126} In response, the state points out that Stoffer did not object to any of
the expert testimony and that their testimony nonetheless comported with Evid.R.
702, the rule of evidence which governs expert testimony. Because of Stoffer’s
failure to object to the testimony, the state contends that this assignment of error
should be reviewed only for plain error and that if there was any error it did not rise to
that level.
{¶127} Whether a witness is qualified to testify as an expert is a matter within
the trial court’s discretion. State v. Awkal (1996), 76 Ohio St.3d 324, 331. Therefore,
we will review a trial court’s decision to qualify a witness as an expert for abuse of
discretion.
{¶128} Evid.R. 702 provides the qualifications a person must meet in order to
be qualified as an expert:
{¶129} “A witness may testify as an expert if all of the following apply:
{¶130} “(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a misconception
common among lay persons;
- 25 -
{¶131} “(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter of the testimony;
{¶132} “(C) The witness’ testimony is based on reliable scientific, technical,
or other specialized information. To the extent that the testimony reports the result of
a procedure, test, or experiment, the testimony is reliable only if all of the following
apply:
{¶133} “(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely accepted knowledge,
facts, or principles;
{¶134} “(2) The design of the procedure, test, or experiment reliably
implements the theory;
{¶135} “(3) The particular procedure, test, or experiment was conducted in a
way that will yield an accurate result.”
{¶136} Despite the trial court’s failure to make a specific finding that Dr.
McPherson was qualified to testify as an expert, he was nonetheless so qualified. He
graduated from medical school and trained in general pediatrics. (Tr. 244.) He
trained an additional two years in specifically diagnosing and treating children who
have been abused. Id. By the time of trial, he had evaluated approximately fourteen-
hundred children who were suspected of being abused. Id.{¶137} Likewise, JoAnn Gibbs was qualified to testify as an expert. She
testified that she was a certified forensic computer examiner by the International
Association of Computer Investigative Specialists. (Tr. 270). She is also a certified
electronics evidence collection specialist, holding a Microsoft Certified Professional
Certification. Id. She also testified that she had been through numerous schools
pertaining to the various software that they utilize at the Ohio Bureau of Criminal
Identification and Investigation. Id.{¶138} Based on the testimony presented by Dr. McPherson and JoAnn
Gibbs concerning their professional qualifications, it cannot be said that any error in
- 26 -
the trial court’s failure to make a specific finding that they were qualified to testify as
experts rose to the level of plain error.
{¶139} Accordingly, Stoffer’s sixth assignment of error is without merit.
{¶140} Stoffer’s seventh assignment of error states:
{¶141} “THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE
STATE EXHIBITS 1 THROUGH 7 AS NO PROPER FOUNDATION WAS LAID NOR
WAS EXPERT TESTIMONY APPROPRIATE.”
{¶142} Under this assignment of error, Stoffer reasserts his argument that he
made under the previous assignment of error that JoAnn Gibbs was not found to be
an expert and, therefore, should not have been able to offer her expert opinion
regarding the retrieval of the pictures from Stoffer’s digital camera. Stoffer also
argues that the state failed to lay a proper foundation for admission as evidence. In
particular, Stoffer takes issue with Gibbs subjecting the camera to analysis by “a
memory stick reader” and that she used “specialized forensic software.” (Brief of
Defendant-Appellant, p. 25; Tr. 272, 274.) He also takes issue with Gibbs’s inability
to verify the dates the photos were taken. (Tr. 281-282.)
{¶143} The admission of photographs into evidence at trial is a decision left
to the sound discretion of the trial judge. State v. Smith, 97 Ohio St.3d 367, 2002-
Ohio-6659, 780 N.E.2d 221, ¶33. Evid.R. 901 sets forth the requirements for
authenticating evidence, including photographic evidence: “The requirement of
authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its
proponent claims.” Pursuant to Evid.R. 901(B)(9), “[e]vidence describing a process
or system used to produce a result and showing that the process or system produces
an accurate result” is one example of authentication conforming to the rule’s
requirements.
{¶144} In this case, JoAnn Gibbs testified concerning the authentication of
photographs. Gibbs explained how she removed the memory stick from Stoffer’s
digital camera and inserted it into a memory stick reader. (Tr. 272.) She then
- 27 -
attached the memory stick reader to a write blocker device. (Tr. 272.) The write
blocker device physically barricades the memory stick from the computer in such a
way that the computer analyzing the memory stick cannot alter it in any way. (Tr.
273.) Using her computer and specialized software, she then proceeded to take a
forensic image of the memory stick. (Tr. 273.) The forensic image is a bit for bit copy
of every sector on the memory stick. (Tr. 273.) Again with specialized software,
Gibbs was able to view everything on the memory stick, including deleted
photographic images. (Tr. 274.) It was from those images that Gibbs located the
photographs that formed the basis of the three counts of illegal use of a minor in
nudity-oriented material or performance. (Tr. 275.) As for the date the photographs
were taken, Gibbs explained that the date information contained with the digital
image file was the date that was on the camera at the time the picture was taken. (Tr.
277.)
{¶145} There is no dispute that the digital camera seized from Stoffer’s
storage unit was in fact his. As the above testimony illustrates, the state adduced
sufficient testimony from Gibbs to authenticate or identify the images comprising
Exhibits 1 through 7 as duplicates of the images appearing on Stoffer’s digital
camera. In sum, the trial court did not abuse its discretion in admitting the
photographs as evidence.
{¶146} Accordingly, Stoffer’s seventh assignment of error is without merit.
{¶147} Stoffer’s eighth and ninth assignments of error state, respectively:
{¶148} “THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT/APPELLANT’S CRIMINAL RULE 29 MOTION FOR JUDGMENT OF
ACQUITTAL; ALTERNATIVELY, THE DEFENDANT/APPELLANT’S CONVICTION
IS BASED UPON INSUFFICIENT EVIDENCE AND THEREFORE MUST BE
REVERSED.”
{¶149} “THE DEFENDANT/APPELLANT’S CONVICTION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
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{¶150} Though sufficiency and manifest weight involve two different
standards of review, they will be discussed together for the sake of clarity and judicial
economy and because both call for a review of the evidence, and because Stoffer
advances the same arguments in support of each.
{¶151} Stoffer argues the conviction was based upon insufficient evidence
and was against the manifest weight of the evidence because the evidence he
heretofore argued was improperly admitted into evidence. He argues: (1) the digital
camera was illegally seized; (2) the children were not competent to testify; (3) the
experts were not properly qualified to testify; (4) impermissible hearsay was admitted;
(5) the photographs were not properly authenticated; and (6) the court erroneously
prohibited testimony concerning an alternative explanation for A.P.’s sexual
knowledge.
{¶152} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the jury verdict. State v. Smith (1997), 80 Ohio St.3d 89, 113,
684 N.E.2d 668. In essence, sufficiency is a test of adequacy. State v. Thompkins
(1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Whether the evidence is legally
sufficient to sustain a verdict is a question of law. Id. In reviewing the record for
sufficiency, 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. Smith, 80 Ohio St.3d at
113, 684 N.E.2d 668.
{¶153} Alternatively, a weight-of-the-evidence challenge requires an
appellate court to review the entire record, weigh the evidence and all reasonable
inferences, and consider the credibility of the witnesses. State v. Thompkins (1997),
78 Ohio St.3d 380, 387, 678 N.E.2d 541. In weighing the evidence and the
reasonable inferences that can be drawn therefrom, if there exists two fairly
reasonable views of the evidence, the reviewing court cannot simply substitute its
judgment for the jury and choose the one it finds more persuasive or believable.
- 29 -
State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.). In
assessing the credibility of the witnesses, the reviewing court is guided by the
principle that the credibility of the witnesses is primarily the responsibility and
province of the jury. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O. 366, 227
N.E.2d 212. This is because the jury is in the best position to asses the credibility of
a trial witness based on their observations of the witnesses’ demeanor, gestures, and
voice inflections. Gore, 131 Ohio App.3d at 201, 722 N.E.2d 125, citing Seasons
Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410, 461
N.E.2d 1273, 1276. In reviewing all of the evidence, a weight-of-the-evidence
challenge requires the reviewing court to determine if the greater amount of credible
evidence supported the jury’s finding of guilt. State v. Thompkins (1997), 78 Ohio
St.3d 380, 387, 678 N.E.2d 541.
{¶154} Reversal based on a successful weight-of-evidence challenge is
reserved only for the exceptional case in which the evidence weighed so heavily
against conviction that the jury clearly must have lost its way, creating a manifest
miscarriage of justice. Id. Indeed, reversing on weight of the evidence after a jury
trial is so extreme that it requires the unanimous vote of all three appellate judges
rather than a mere majority vote. Thompkins, 78 Ohio St.3d at 389, 678 N.E.2d 541,
citing Section 3(B)(3), Article IV of the Ohio Constitution (noting that the power of the
court of appeals is limited in order to preserve the jury's role with respect to issues
surrounding the credibility of witnesses).
{¶155} The two counts of gross sexual imposition will be addressed first.
Stoffer was convicted of two counts of gross sexual imposition in violation of R.C.
2907.05(A)(4), which provides:
{¶156} “(A) No person shall have sexual contact with another, not the spouse
of the offender; cause another, not the spouse of the offender, to have sexual contact
with the offender; or cause two or more other persons to have sexual contact when
any of the following applies:
{¶157} “* * *
- 30 -
{¶158} “(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of that person.”
{¶159} “Sexual contact” is defined as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or gratifying either
person.” R.C. 2907.01(B).
{¶160} A rational trier of fact could have found beyond a reasonable doubt
that Stoffer twice had sexual contact with A.P. A.P. testified that Stoffer had used his
hands to touch her “boobies” and her “wrong place.” This court has previously found
similar testimony sufficient. See State v. Rhodes, 7th Dist. No. 99 BA 62, 2002-Ohio-
1572 (where victim testified that the defendant testified that he put “his finger in her
private.”)
{¶161} Stoffer’s conviction on the two counts of gross sexual imposition is
also supported by the weight of the evidence. In addition to A.P.’s own testimony, Dr.
McPherson testified to the statements A.P. made at the Tri-County Advocacy Center
about Stoffer touching her breasts and pubic regions. Additionally, Dr. McPherson
testified that, within a reasonable degree of medical certainty, A.P. had been sexually
abused. (Tr. 253.)
{¶162} Turning to the three counts of illegal use of a minor in nudity-oriented
material or performance, Stoffer was convicted of three counts of illegal use of a
minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(1),
which provides:
{¶163} “(A) No person shall do any of the following:
{¶164} “(1) Photograph any minor who is not the person’s child or ward in a
state of nudity, or create, direct, produce, or transfer any material or performance that
shows the minor in a state of nudity * * * [.]”
{¶165} A rational trier of fact could have found beyond a reasonable doubt
that Stoffer took the three nude pictures of A.P. found on his digital camera. A.P.
testified that Stoffer took a picture of her “boobies” and her “wrong place.” (Tr. 38.).
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Therefore, there was sufficient evidence to support Stoffer’s conviction on those
counts.
{¶166} Further the weight of the evidence supports Stoffer’s conviction on
those three counts. Dan Valentine testified about retrieving the digital camera from
Stoffer’s storage unit to which Stoffer voluntarily directed him. (Tr. 232-233.) Joann
Gibb testified about retrieving the images from Stoffer’s camera. In addition, Dr.
McPherson corroborated A.P.’s recounting of Stoffer taking the pictures of her in
various stages of nudity. (Tr. 250.)
{¶167} Accordingly, Stoffer’s eighth and ninth assignments of error are
without merit.
{¶168} Stoffer’s tenth assignment of error states:
{¶169} “THE TRIAL COURT ERRED IN FAILING TO MERGE THE
OFFENSES IN THE SUPERCEDING INDICTMENT FOR PURPOSES OF
SENTENCING.”
{¶170} Stoffer argues that the two counts of gross sexual imposition were not
allied offenses of similar import. He contends that there was no evidence presented
to establish that the counts were committed at separate times or with separate
animus. Therefore, he concludes, the trial court’s sentence of five years in prison on
each count to be served consecutively was contrary to law. Stoffer also contends
that three counts of illegal use of a minor in nudity-oriented material were allied
offenses of similar import. But since the trial court ordered concurrent sentences on
those convictions, Stoffer concedes that the sentences were permissible.
{¶171} In response, the state argues that the testimony of the victim
established that there were at least two separate incidents which gave rise to the two
counts of gross sexual imposition.
{¶172} Stoffer failed to raise the issue of merger at sentencing and, therefore,
waived all but plain error. “Because an error related to merger affects a defendant’s
right to protection from double jeopardy, and because an erroneous failure to merge
convictions inevitably causes a different outcome in a defendant's trial, the failure to
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merge convictions on allied offenses of similar import will almost always result in
plain error.” State v. Haslam, 7th Dist. No. 08-MO-3, 2009-Ohio1663, at ¶ 62. Thus,
if the court here failed to properly merge Stoffer’s convictions, the result is plain error.
{¶173} R.C. 2941.25 addresses the issue of merger and provides:
{¶174} “(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be convicted of only
one.
{¶175} “(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses of the same
or similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the defendant
may be convicted of all of them.”
{¶176} Recently, in State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061,
2010-Ohio-6314, the Ohio Supreme Court adopted the new following approach to
determination of allied offenses:
{¶177} “Under R.C. 2941.25, the court must determine prior to sentencing
whether the offenses were committed by the same conduct. Thus, the court need not
perform any hypothetical or abstract comparison of the offenses at issue in order to
conclude that the offenses are subject to merger.
{¶178} “In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one offense
and commit the other with the same conduct, not whether it is possible to commit one
without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816(Whiteside, J., concurring) * * * If the offenses correspond to such a degree that the
conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.
{¶179} “If the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by the same conduct,
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i.e., ‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).
{¶180} “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{¶181} “Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses are
committed separately, or if the defendant has separate animus for each offense,
then, according to R.C. 2941.25(B), the offenses will not merge.” (Emphasis sic.) Id.
at ¶47-41.
{¶182} Applying Johnson to this case, we address the first question –
whether it is possible to commit one offense and commit the other with the same
conduct. Here, Stoffer’s two convictions for gross sexual imposition were both for
violations of R.C. 2907.05(A)(4) and, therefore, contain identical elements. Thus, it is
possible to commit one offense and commit the other with the same conduct. So, the
answer to the first question is yes.
{¶183} The second question is whether the offenses were committed by the
same conduct, i.e., a single act, committed with a single state of mind. Here, the
record reveals two distinct acts of sexual misconduct defined by R.C. 2907.01(B):
touching the victim’s breasts and touching her pubic region. So, the answer to the
second question is no. Therefore, each offense charged constitutes a separate
offense of gross sexual imposition, and the crimes do not constitute allied offenses of
similar import which must be merged for conviction.
{¶184} Other districts are in accord. In State v. Moralevitz (1980), 70 Ohio
App.2d 20, 24 O.O.3d 16, 433 N.E.2d 1280 the defendant was charged with three
counts of gross sexual imposition: placing his finger between the victim’s legs, putting
his hand upon the victim’s chest, and putting his tongue between the victim’s legs.
The Eighth District concluded that the acts occurred consecutively, determining that
they were not allied offenses, “just as the commission of anal rape after vaginal rape
constituted the commission of separate offenses in State v. Ware (1977), 53 Ohio
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App.2d 210, 211 [judgment affirmed (1980), 63 Ohio St.2d 84] * * *.” Id. at 28. See,
also, State v. Austin (2000), 138 Ohio App.3d 547, 741 N.E.2d 927 discretionary
appeal not allowed, 90 Ohio St.3d 1472, 738 N.E.2d 383 (3d Dist.) (concluding that
touching of the victim’s breast with defendant’s hand and kissing the victim’s breast
with his mouth did not indicate a single, simultaneous incident; rather the acts
occurred separately but in close proximity of time during the same extended assault
of the victim).
{¶185} Applying that same analysis to the three counts of illegal use of a
minor in nudity-oriented material or performance leads to the same conclusion. The
first question is whether it is possible to commit one offense and commit the other
with the same conduct. Here, Stoffer’s three convictions of illegal use of a minor in
nudity-oriented material or performance were all for violations of R.C. 2907.323(A)(1)
and, therefore, contain identical elements. Thus, it is possible to commit one offense
and commit the other with the same conduct. So, the answer to the first question is
yes.
{¶186} The second question is whether the offenses were committed by the
same conduct, i.e., a single act, committed with a single state of mind. Here, the
record reveals three distinct acts of illegal use of a minor in nudity-oriented material
or performance. Three separate pictures showing A.P. in various stages of nudity
were retrieved from Stoffer’s digital camera. While they may have been taken within
seconds of each other, all three pictures were taken separately and at distinctly
different times. So, the answer to the second question is no. Therefore, each
offense charged constitutes a separate offense of illegal use of a minor in nudity-
oriented material or performance, and the crimes do not constitute allied offenses of
similar import which must be merged for conviction.
{¶187} Accordingly, Stoffer’s tenth assignment of error is without merit.
{¶188} Stoffer’s eleventh assignment of error states:
{¶189} “THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES UPON DEFENDANT/APPELLANT.”
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{¶190} Stoffer acknowledges the Ohio Supreme Court’s decision in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, removing the requirement
of specific findings for imposition of consecutive sentences. However, Stoffer
maintains that the underlying legislative policy remains intact. Stoffer argues that the
trial court’s reasons for imposing consecutive sentences should be clear from the
record in order to allow for a meaningful appellate review.
{¶191} Regardless of the “policy” argument advanced by Stoffer, this court is
left only with what remains of Ohio’s felony sentencing law and is bound by the Ohio
Supreme Court’s decisions in that regard. Prior to the Ohio Supreme Court’s
decision in Foster, the trial court was required to make certain findings in order to
sentence an offender to consecutive sentences. R.C. 2929.14(E). However, in
Foster, the Court found that provision unconstitutional because it statutorily required
“judicial fact-finding before imposition of a sentence greater than the maximum term
authorized by a jury verdict or admission of the defendant.” Id. at paragraph one of
the syllabus. As a remedy, Foster severed the provision in its entirety from the
statute. Id. at paragraph two of the syllabus. Now, a sentencing court has “full
discretion” to sentence an offender within the statutory range and is no longer
required to make findings or give its reasons for imposing non-minimum, maximum,
or consecutive sentences. Id. at paragraph seven of the syllabus. A sentencing court
need only consider “R.C. 2929.11, which specifies the purposes of sentencing, and
R.C. 2929.12, which provides guidance in considering factors relating to the
seriousness of the offense and recidivism of the offender.” State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at ¶38.
{¶192} Accordingly, Stoffer’s eleventh assignment of error is without merit.
{¶193} Stoffer’s twelfth assignment of error states:
{¶194} “THE DEFENDANT/APPELLANT’S SENTENCE WAS NOT
PROPORTIONAL RELATIVE TO THE DEFENDANT’S CONDUCT LEADING TO
THE CHARGES AND THEREFORE THE SENTENCES ARE CONTRARY TO LAW.”
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{¶195} Stoffer argues that although the Ohio Supreme Court in State v.
Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, determined that R.C.
2929.14(E) was unconstitutional, the trial court should still engage in a proportionality
analysis in furtherance of the statutory policy underlying that section. He contends
there is nothing in the record to support a conclusion that the sentence was
proportionate to his conduct.
{¶196} R.C. 2929.14(E) provided that before a court could sentence an
offender to consecutive sentences that the trial court was required to find that
consecutive sentences were “necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public.” The court was also required to find that one of the three factors in R.C.
2929.14(E)(4)(a), (b), or (c) was applicable. The trial court was then required to
provide reasons supporting its findings. R.C. 2929.19(B)(2)(c).
{¶197} Again, Stoffer concedes that under Foster the trial court is no longer
required to making findings under R.C. 2929.14(E). 109 Ohio St.3d 1, 845 N.E.2d
470, 2006-Ohio-856, paragraph three of the syllabus. After severing that section
from the statute, the Ohio Supreme Court then held that a sentencing court has “full
discretion” to sentence an offender within the statutory range and is no longer
required to make findings or give its reasons for imposing non-minimum, maximum,
or consecutive sentences. Id. at paragraph seven of the syllabus. A sentencing court
need only consider “R.C. 2929.11, which specifies the purposes of sentencing.” “R.C.
2929.12, which provides guidance in considering factors relating to the seriousness
of the offense and recidivism of the offender,” and any other statutes that are specific
to the case. State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855, ¶ 38.
Consequently, the trial court was not required to engage in the proportionality
analysis espoused in R.C. 2929.14(E).
{¶198} Accordingly, Stoffer’s twelfth assignment of error is without merit.
{¶199} Stoffer’s thirteenth assignment of error states:
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{¶200} “DEFENDANT/APPELLANT’S SENTENCES ARE CONTRARY TO
LAW AS THEY DO NOT SERVE THE OVERRIDING PURPOSES AND
PRINCIPLES OF SENTENCING AS EXPRESSED IN ORC 2929.11.”
{¶201} Under this assignment of error, Stoffer argues that imposition of
maximum and consecutive sentences regarding the two counts of gross sexual
imposition was not consistent with the purposes of felony sentencing set forth in R.C.
2929.11(A) to adequately protect the public and punish the offender. He posits that
the trial court’s imposition of consecutive sentences was not commensurate with the
seriousness of his conduct and that the sentences do not comply with purposes of
felony sentencing set forth in R.C. 2929.11(B). Again, he argues that the record is
lacking for a meaningful appellate review.
{¶202} Appellate review of felony sentences is a very limited, two-fold
approach, as outlined by the plurality opinion of the Ohio State Supreme Court in
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶26. The
first step requires appellate courts to “examine the sentencing court’s compliance
with all applicable rules and statutes in imposing the sentence to determine whether
the sentence is clearly and convincingly contrary to law.” Id. (O’Connor, J., plurality
opinion). In examining “all applicable rules and statutes,” the sentencing court must
consider R.C. 2929.11 and R.C. 2929.12. Id. at ¶13-14 (O’Connor, J., plurality
opinion). If the sentence is not clearly and convincingly contrary to law, the
sentencing court’s exercise of discretion “in selecting a sentence within the
permissible statutory range is subject to review for any abuse of discretion.” Id. at ¶17
(O’Connor, J., plurality opinion). Thus, an abuse of discretion is used to determine
whether the sentence satisfies R.C. 2929.11 and R.C. 2929.12. Id. at ¶17 (O’Connor,
J., plurality opinion).
{¶203} A sentencing court must consider the principles and purposes of
sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C.
2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38. The trial court in
this case did not discuss the statutory principles and factors either at the sentencing
- 38 -
hearing or in the sentencing entry. However, the sentencing court need not make
findings regarding these statutes. This court has held that a silent record raises the
rebuttable presumption that the sentencing court considered the statutory sentencing
criteria. State v. James, 7th Dist. No.07CO47, 2009-Ohio-4392, ¶50, citing State v.
Adams (1988), 37 Ohio St .3d 295 and applying footnote from Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912, 896 N.E.2d 124. Only if the record affirmatively shows that the
trial court failed to consider the principles and purposes of sentencing will a sentence
be reversed on this basis, unless the sentence is strikingly inconsistent with relevant
considerations. Id.{¶204} The record does not affirmatively show that the court refused to
consider the proper principles and factors. Nor is the sentence strikingly inconsistent
with the pertinent considerations. In sum, Stoffer’s sentence fell within the statutory
range and was not clearly and convincingly contrary to law. Nor did the trial court’s
application of R.C. 2929.11 and R.C. 2929.12 to Stoffer’s sentence constitute an
abuse of discretion.
{¶205} Accordingly, Stoffer’s thirteenth assignment of error is without merit.
{¶206} Stoffer’s fourteenth assignment of error states:
{¶207} “THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE
SENTENCES IN THE PRESENT CASE IS CONTRARY TO LAW AND/OR
VIOLATES THE MANDATES OF ORC 2929.13(A).”
{¶208} Stoffer argues that the trial court made no finding that the imposition
of consecutive sentences would not impose an unnecessary burden on state or local
government resources, citing R.C. 2929.13(A). Without further explanation, Stoffer
argues that it is “clear” in this case that the sentences imposed did “in fact” impose an
unnecessary burden on state and local government resources.
{¶209} R.C. 2929.13(A) provides that a felony “sentence shall not impose an
unnecessary burden on state or local government resources.”
{¶210} “Just what constitutes a ‘burden’ on state resources is undefined by
the statute, but the plain language suggests that the costs, both economic and
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societal, should not outweigh the benefit that the people of the state derive from an
offender’s incarceration. Some have argued that in cases where the multiple life tails
might be involved, incarceration of aged offenders who require the kind of nursing
care needed by elderly people might place a burden on the state’s resources. Of
course this is true, but it is only one type of cost associated with incarceration. The
court must also consider the benefit to society in assuring that an offender will not be
free to reoffend. Many people sleep better at night knowing that certain offenders are
incarcerated. They would no doubt consider a lengthy incarceration worth the cost of
housing those offenders.” State v. Vlahopoulos, 154 Ohio App.3d 450, 2003-Ohio-
5070, 797 N.E.2d 580, at ¶5.
{¶211} As mentioned, Stoffer has provided no explanation or evidence that
the sentence the trial court imposed would create an unnecessary burden on state or
local government resources. Given the nature of the crimes perpetrated by Stoffer
against his child-victim, it cannot be said that the public, and primarily its safety,
would not benefit from having Stoffer incarcerated for fifteen years.
{¶212} Accordingly, Stoffer’s fourteenth assignment of error is without merit.
{¶213} Stoffer’s fifteenth assignment of error states:
{¶214} “DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL DUE TO
THE CUMULATIVE EFFECT OF THE ERRORS AS SET FORTH HEREIN.”
{¶215} Stoffer argues that due to the cumulative effect of the errors he
alleged occurred in this case, he was denied a fair trial and substantive due process.
He requests dismissal of all the charges against him and discharge from prison or, at
the very least, a new trial.
{¶216} “The cumulative error doctrine refers to a situation in which the
existence of multiple errors, which may not individually require reversal, may violate a
defendant’s right to a fair trial. To affirm a conviction in spite of multiple errors, we
must determine that the cumulative effect of the errors is harmless beyond a
reasonable doubt. The errors may be considered harmless if there is overwhelming
evidence of guilt, if Appellant’s substantial rights were not affected, or if there are
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other indicia that the errors did not contribute to the conviction.” (Internal citations
omitted.) State v. Anderson, 7th Dist. No. 03-MA-252, 2006-Ohio-4618, at ¶80.
{¶217} As discussed above, the errors Stoffer alleges do not have merit,
harmless or otherwise. Thus, no cumulative error exists.
{¶218} Accordingly, Stoffer’s fifteenth assignment of error is without merit.
{¶219} The judgment of the trial court is hereby affirmed.
Vukovich, J., concurs.
DeGenaro, J., concurs.