State v. Kaaz , 2017 Ohio 5669 ( 2017 )

[Cite as State v. Kaaz, 2017-Ohio-5669.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-05-010
: OPINION
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:
GENE R. KAAZ, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 2015-5237
Richard W. Moyer, Clinton County Prosecuting Attorney, Lindsey M. Fleissner, 103 East
Main Street, Wilmington, Ohio 45177, for plaintiff-appellee
Bryan R. Perkins, Michael K. Allen, 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202,
for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Gene Kaaz, appeals his convictions and sentence in the
Clinton County Court of Common Pleas for rape, sexual battery, unlawful sexual conduct with
a minor, and importuning.
{¶ 2} The charges stem from allegations made by J.R., who alleged that when she
was nine years old, Kaaz began to sexually abuse her via oral, anal, and vaginal intercourse.
According to J.R., a majority of Kaaz's sexual abuse occurred on a chair in Kaaz's locked
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garage.
{¶ 3} Kaaz was indicted on 14 counts of rape, sexual battery, unlawful sexual
conduct with a minor, and importuning. After pleading not guilty to the charges, the matter
proceeded to a four-day jury trial. The jury found Kaaz guilty on all charges. After merging
some of the charges, the trial court sentenced Kaaz to consecutive sentences for an
aggregate prison term of 30 years to life. Kaaz now appeals his convictions and sentence,
raising the following assignments of error. As Kaaz's first and seventh assignments of error
are interrelated, we will address them together.
I. Sufficiency and Weight of the Evidence
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT AS HE WAS CONVICTED ON INSUFFICIENT EVIDENCE.
{¶ 6} Assignment of Error No. 7:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT AS HIS CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF
THE EVIDENCE PRESENTED AT TRIAL.
{¶ 8} Kaaz argues in his first and seventh assignments of error that his convictions
are against the manifest weight of the evidence and not supported by sufficient evidence.
{¶ 9} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt beyond a reasonable doubt. State
v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. 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." State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
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{¶ 10} A manifest weight of the evidence challenge, on the other hand, examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
{¶ 11} "While appellate review includes the responsibility to consider the credibility of
witnesses and weight given to the evidence, these issues are primarily matters for the trier of
fact to decide." State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶
81. An appellate court, therefore, will overturn a conviction due to the manifest weight of the
evidence only in extraordinary circumstances when the evidence presented at trial weighs
heavily in favor of acquittal. Id.
{¶ 12} Although the legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different, a "determination that a conviction
is supported by the manifest weight of the evidence will also be dispositive of the issue of
sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶ 13} Kaaz was convicted of rape in violation of R.C. 2907.02(A)(1)(b), which
essentially prohibits sexual conduct with a person who is less than 13 years of age. Kaaz was
also convicted of sexual battery in violation of R.C. 2907.03(A)(5), which criminalizes sexual
conduct when the "offender is the other person’s natural or adoptive parent, or a stepparent,
or guardian, custodian, or person in loco parentis of the other person." Kaaz was also
convicted of importuning in violation of R.C. 2907.07(B)(1), which provides that no "person
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shall solicit another * * * to engage in sexual conduct with the offender, when the offender is
eighteen years of age or older and four or more years older than the other person, and the
other person is thirteen years of age or older but less than sixteen years of age * * *." Finally,
Kaaz was also convicted of unlawful sexual conduct with a minor in violation of R.C.
2907.04(A), which provides, that no "person who is eighteen years of age or older shall
engage in sexual conduct with another * * * when the offender knows the other person is
thirteen years of age or older but less than sixteen years of age, or the offender is reckless in
that regard."
A. Trial Testimony
1. Child Protection Unit Caseworker
{¶ 14} After reviewing the record, we find that Kaaz's convictions are all supported by
sufficient evidence and were not otherwise rendered against the manifest weight of the
evidence. During Kaaz's trial, the state presented testimony from several witnesses. The
first was an investigative caseworker with the Clinton County Department of Job and Family
Services, Child Protection Unit. The caseworker testified that he investigated an allegation
that Kaaz was allowing children to smoke marijuana and drink alcohol, and providing them
with such. When Kaaz's wife admitted that there was marijuana in the home, the caseworker
continued his investigation. As part of the investigation, the caseworker interviewed J.R.
{¶ 15} J.R. confirmed that she consumed alcohol and marijuana provided to her by
Kaaz. J.R., who was confined in a detention center at the time of her interview, admitted that
she had been drinking from a young age. The caseworker learned that J.R. had been in
trouble for unruliness and kicking a police car, and that she engaged in self-harm through
cutting herself. J.R. became more comfortable with the caseworker during their discussion,
and ultimately shared that Kaaz had sexually abused her. The caseworker scheduled a
follow-up interview with J.R., and contacted police regarding the allegations.
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{¶ 16} During the follow-up interview with the caseworker and his supervisor, J.R.
provided additional information regarding the sexual abuse she suffered from Kaaz. J.R. told
the caseworker that the sexual abuse, which included vaginal intercourse, occurred on the
chair in Kaaz's garage. J.R. also told the caseworker and supervisor that Kaaz would
sometimes "pull out and ejaculate on the chair" or ejaculate inside of her if she was
menstruating at the time. The caseworker and his supervisor gave this information to police.
2. Child Protection Unit Supervisor
{¶ 17} The state next presented testimony from the caseworker's supervisor, who is
the investigative supervisor of the Child Protection Unit. The supervisor testified that when
she and the caseworker interviewed J.R., J.R. indicated that she suffered sexual abuse at the
hands of Kaaz since the age of nine. The sexual abuse would occur in the garage, on Kaaz's
bed, and in Kaaz's bathroom. The supervisor then testified that she and the caseworker
reacted to J.R.'s statement by informing police, specific to the sexual abuse occurring on the
chair in the garage, for investigatory purposes.
{¶ 18} The supervisor also testified that she interviewed Kaaz, and that he denied
giving J.R. alcohol or marijuana, but did state that he had lain in bed with J.R. However,
Kaaz told the supervisor that nothing sexual occurred between himself and J.R. and that J.R.
was a troubled child. When the supervisor specifically advised Kaaz of the allegations J.R.
made, Kaaz "advised that he didn't want to talk about that any longer." The supervisor
testified that when she asked Kaaz if there would be any reason his and J.R.'s DNA would be
found on the chair in the garage, "his eyes got bigger. He sat back further and advised that
he no longer wanted to talk, he wanted an attorney."
3. Detective
{¶ 19} The state also presented testimony from a Wilmington Police Department
detective who was contacted by the supervisor and caseworker regarding J.R.'s allegations
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of sexual abuse against Kaaz. The detective testified that once he was given information
about the chair in Kaaz's garage, he obtained a search warrant and seized the chair. The
detective described the chair as "nasty," and "dirty." Together with his supervisor, the
detective moved the chair to the police station's evidence room where it was later analyzed
by a special agent of the Ohio Bureau of Criminal Investigations ("BCI"). The detective
testified that after the special agent found the presence of seminal fluid and other stains on
the chair, he secured another search warrant to obtain DNA samples from Kaaz and the
victim, and that police collected the samples from both.
4. BCI Agent
{¶ 20} The state next presented testimony from the BCI agent who took DNA
samples from the chair. The agent testified that he performed a forensic sweep on the chair,
and that he employed a black light to determine if the chair contained saliva, urine, or semen.
When the light indicated several stains, the agent cut the fabric on the chair and did a
preliminary test on the stained areas, as well as the chair's inside cushion. The preliminary
tests indicated that the stains on the chair and the cushion contained seminal fluid. The
agent then sent the samples to the laboratory for DNA testing.
5. Forensic Scientists
{¶ 21} The state called multiple BCI forensic scientists, who testified about testing the
samples. The scientists confirmed that the samples tested positive for semen, and that DNA
found on the chair belonged to Kaaz and J.R.
6. Mayerson Forensic Interviewer
{¶ 22} The state then called a social worker and forensic interviewer who is employed
at the Mayerson Center for Safe and Healthy Children. The interviewer testified that her role
at the Center is to "assess if something has happened to a child or if they have witnessed
significant violence. Then my role is to assess the need for medical care which includes like
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physical medical care, but also mental health care." The interviewer testified that when she
spoke to J.R., J.R. provided "a lot of detail" regarding Kaaz's sexual abuse. Based on the
information regarding the sexual abuse, the interviewer determined that J.R. needed a
medical consultation as well as ongoing mental health therapy.
7. J.R.'s Brother
{¶ 23} The state then began presenting evidence from J.R.'s family about Kaaz and
his actions in the years leading up to the sexual abuse allegations. In this regard, J.R.'s
brother was the first to testify. He disclosed that Kaaz allowed him to drink alcohol when he
was as young as 12, and that he and Kaaz drank alcohol together on multiple occasions.
J.R.'s brother also testified that Kaaz began giving him marijuana in seventh grade, and that
Kaaz provided him marijuana on multiple occasions. According to J.R.'s brother, Kaaz drank
heavily, and when drunk, he would make "dirty comments," be "more touchy," and act
"perverted * * * he would talk about parts of a girl or a guy." Kaaz also showed nude
photographs to J.R.'s brother.
{¶ 24} J.R.'s brother testified that he noticed that Kaaz was more "touchy feely" with
J.R. than he was with the other siblings, and that Kaaz would lie with J.R. on the couch, on
his bed, or go out to the garage with J.R. Kaaz would also massage J.R. while she was
sitting on the couch, and J.R.'s brother saw Kaaz and J.R. in Kaaz's bed together. J.R.'s
brother testified that he would find Kaaz and J.R. together in bed at least once a week, and
that Kaaz and J.R. would spend hours at a time in the garage with the door closed and
locked. Kaaz also told J.R.'s brother to "go away" when Kaaz wanted to spend time alone in
the garage with J.R.
{¶ 25} J.R.'s brother testified that J.R. confided in him and their older sister that Kaaz
had "sexual conduct" with her and that she felt that the conduct was inappropriate but did not
know how to stop it. J.R. told her brother that the sexual abuse had started when she was
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nine years old. J.R.'s brother testified his reaction to what J.R. told him was to be "scared
and threatened," and thus he did not tell anyone until much later.
8. J.R.
{¶ 26} J.R. then testified about the sexual activity that had taken place over the last
several years. J.R. testified that when she was younger, around eight or nine years old, she
felt ill and lay in Kaaz's bed to be cared for. Kaaz gave her whiskey to drink and
subsequently kissed her. Kaaz then put his penis in J.R.'s mouth and later put his mouth on
her vagina. J.R. testified that she ran into the bathroom and vomited after Kaaz finished.
When J.R. was ten years old, Kaaz was giving her beer, and by 11, he was giving her
marijuana.
{¶ 27} J.R. testified that Kaaz's demeanor would change often, and that alcohol was
often a part of her sexual abuse. Kaaz would ask J.R. to massage him, and then take her to
the garage where he would engage in vaginal intercourse with her after giving her shots of
alcohol to drink. J.R. also testified that Kaaz would engage in oral and anal sex with her.
The sexual conduct would occur more than once a week, and Kaaz never went more than a
month without engaging in sexual conduct with J.R. J.R. also confirmed her brother's
testimony regarding his seeing Kaaz and her together in bed, and testified that before her
brother came to the door, she and Kaaz had intercourse.
{¶ 28} J.R. also testified that when she would tell Kaaz not to touch her, he would tell
her that he could make her feel better, that she acted out when she did not have "it," and that
they could make each other feel good. Kaaz also told J.R. not to tell anyone about the
sexual conduct or they would both get into trouble. However, J.R. did tell her sister and
brother, just as her brother testified to earlier in the trial.
9. J.R.'s Older Sister
{¶ 29} J.R., who is the youngest of the four children, had two sisters. The older sister
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testified that Kaaz began providing her alcohol when she was 11 or 12, and that she would
get drunk on the alcohol Kaaz provided her. Kaaz also provide her marijuana, which they
smoked together. J.R.'s sister also testified that Kaaz would talk to her about sexual
intercourse, specifically as to what positions she should use with her partners. Kaaz also
showed J.R.'s sister pictures of genitals and described what areas to touch for pleasure.
Kaaz also demonstrated sexual positions with J.R.'s sister by grabbing her hips and showing
her how to move on top of him.
{¶ 30} J.R.'s sister also testified that when she and Kaaz were talking about oral sex,
Kaaz licked her bare leg on her inner thigh. Kaaz also kissed her on the lips while lying on
the floor with her. He also kissed her on the back of her ear, moving down her neck and
across the front of her upper chest. J.R.'s sister later testified that one night, she woke up
and Kaaz was trying to put his hand up her shirt. J.R.'s sister confirmed during her testimony
that J.R. told her and their brother about Kaaz's sexual abuse. J.R. also told her sister that
she and Kaaz had sexual intercourse.
10. J.R.'s Other Sister
{¶ 31} The younger of J.R.'s sisters testified that Kaaz offered her alcohol and
marijuana and pressured her into using marijuana with him. He also showed her images of
nude women, which the sister found "disgusting." The sister also testified that she saw Kaaz
and J.R. go to the garage together, "a couple times a week," and that the garage door was
then shut and locked. Because of what occurred in the household, the sister testified that
she would not go into the garage herself.
11. Kaaz
{¶ 32} Kaaz testified in his own defense, and denied any sexual conduct with J.R. On
cross-examination, he denied every allegation J.R. and her siblings testified to, including
providing marijuana for the children, touching any of them inappropriately, or having any
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sexual contact with them. Kaaz indicated that the children's testimony was fabricated and
that the children were "liars."
12. Kaaz's Son
{¶ 33} Kaaz's son from a previous relationship also testified in his defense. The son
testified that he had never seen any sexual contact between Kaaz and J.R. However, Kaaz's
son also testified that he no longer lived with Kaaz because Kaaz gave him alcohol and
marijuana when he was in the fifth grade, and his mother then made him reside with her.
{¶ 34} After viewing this evidence in a light most favorable to the prosecution, we find
that the state proved the elements of the crimes charged, and that the jury did not lose its
way or create a manifest miscarriage of justice in finding Kaaz guilty. While Kaaz testified
that he did not sexually abuse J.R., the jury was in the best position to judge his credibility,
and we will not disturb its finding that Kaaz's credibility was lacking or that J.R. and the other
states' witnesses were believable. As such, we overrule Kaaz's first and seventh
assignments of error.
II. Other Bad Acts
{¶ 35} Assignment of Error No. 2:
{¶ 36} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY ALLOWING THE PROSECUTION TO INTRODUCE EVIDENCE OF
OTHER BAD ACTS SEPARATE FROM THOSE ALLEGED IN THE INDICTMENT.
{¶ 37} Kaaz argues in his second assignment of error that the trial court erred by
admitting evidence of Kaaz's prior bad acts.
{¶ 38} A trial court's decision to admit or exclude relevant evidence will not be
reversed absent an abuse of discretion. State v. Bozeman, 12th Dist. Butler No. CA2008-10-
248, 2009-Ohio-3677. An abuse of discretion connotes more than an error in law or
judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
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State v. Jones, 12th Dist. Butler No. CA2012-04-077, 2013-Ohio-654.
{¶ 39} Evidence that an accused committed a crime other than the one for which he
is on trial is not admissible when its sole purpose is to show the accused's propensity or
inclination to commit a crime, or that he acted in conformity with bad character. State v.
Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472.
However, there are certain exceptions that allow evidence of other acts of wrongdoing.
{¶ 40} First, R.C. 2945.59 provides,
In any criminal case in which the defendant’s motive or intent,
the absence of mistake or accident on his part, or the
defendant’s scheme, plan, or system in doing an act is material,
any acts of the defendant which tend to show his motive or
intent, the absence of mistake or accident on his part, or the
defendant’s scheme, plan, or system in doing the act in question
may be proved, whether they are contemporaneous with or prior
or subsequent thereto, notwithstanding that such proof may
show or tend to show the commission of another crime by the
defendant.
{¶ 41} Also, Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts is
permitted to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
of the absence of mistake or accident. State v. Kirkland, 140 Ohio St. 3d 73, 2014-Ohio-
1966.
A. State v. Williams
{¶ 42} The Ohio Supreme Court laid out a three-part test to determine if other acts
evidence is admissible. State v. Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695. First, the
court is to "consider whether the other acts evidence is relevant to making any fact that is of
consequence to the determination of the action more or less probable than it would be
without the evidence." Id. at ¶ 20. Second, the court is to consider "whether evidence of the
other crimes, wrongs, or acts is presented to prove the character of the accused to show
activity in conformity therewith or whether the other acts evidence is presented for a
legitimate purpose, such as those stated in Evid.R. 404(B)." Id. Third, the court is to
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consider "whether the probative value of the other acts evidence is substantially outweighed
by the danger of unfair prejudice." Id.
1. Applicable Testimony
{¶ 43} During the trial, and as discussed in Kaaz's first and seventh assignments of
error, J.R.'s siblings testified regarding sexually-related instances they witnessed or
experienced involving Kaaz. The siblings testified about Kaaz showing them nude pictures,
telling sexually-related jokes, discussing sex with them, demonstrating sexual positions, and
receiving alcohol and marijuana from Kaaz. J.R.'s older sister also testified that Kaaz kissed
her in an inappropriate manner and licked her thigh during a discussion of oral sex. Kaaz
now claims that this testimony was impermissible prior bad acts testimony. However, the
record indicates that the testimony was proper to show Kaaz' intent, motive, preparation, and
plan.
{¶ 44} Specifically, the trial court permitted the testimony to show Kaaz's grooming of
J.R., and how he went about plying the victim with alcohol and drugs to make his sexual
abuse of her easier.1 These acts – including discussing sex, showing nude pictures, kissing
the siblings inappropriately, and reducing their inhibitions – demonstrated grooming behavior
that was characteristic of Kaaz's intent, motive, preparation, and plan to sexually abuse J.R.
Kaaz's actions were specific and repeated, and were indicative of his sexual behavior toward
children.
2. Williams Test
{¶ 45} Regarding the test set out in Williams, we find that the trial court did not abuse
its discretion in admitting the evidence. First, the other acts evidence was of consequence in
the determination of what occurrences or facts were probable to exist. The testimony clearly
1. As noted by the Williams court, grooming "refers to deliberate actions taken by a defendant to expose a child
to sexual material; the ultimate goal of grooming is the formation of an emotional connection with the child and a
reduction of the child's inhibitions in order to prepare the child for sexual activity." 2012-Ohio-5695 at ¶ 21.
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established Kaaz's approach to preparing J.R. for the sexual abuse, and demonstrated that
Kaaz normalized sexual behaviors with the siblings when they were young children. See
State v. Stanforth, 12th Dist. Clermont No. CA2016-07-052, 2017-Ohio-4040 (affirming use of
other acts testimony to demonstrate appellant's grooming of the victims). Kaaz took specific
and repeated actions to groom and normalize sexual behavior, including showing the siblings
nude pictures, discussing genitalia, instructing them on sexual positions and gratification, as
well as intimate touching and kissing.
{¶ 46} Second, the testimony was presented to prove Kaaz's motive and intent, rather
than his character to show activity in conformity therewith. Specifically, the testimony
established Kaaz's routine of manipulating the siblings, and his repeated actions to lower
their inhibitions through alcohol and marijuana. Kaaz also familiarized the siblings with
sexual concepts at a young age by telling sexually-related jokes, suggesting to the siblings
sexual activities to please themselves and their partners, and demonstrating sexual acts to
and with the siblings. Moreover, in its final instructions to the jury, the trial court instructed
the jury that it could not consider evidence of any other acts to show character and activity in
conformity therewith. We presume the jury followed this instruction. See State v. Kirkland,
140 Ohio St. 3d 73, 2014-Ohio-1966 (finding the second prong of the three-part Williams test
fulfilled where the jury was given a similar limiting instruction regarding prior acts testimony).
{¶ 47} Third, the probative value of the other acts evidence was not substantially
outweighed by the danger of unfair prejudice. The trial court noted that, in general, evidence
of criminal activity is inherently prejudicial. However, the trial court concluded, and we agree,
that the probative value outweighed any prejudice. The witnesses were subject to cross-
examination, and defense counsel continuously challenged the witnesses and their credibility
regarding their testimony of Kaaz's sexual motives and actions. Moreover, Kaaz testified in
his own defense that the siblings were lying, and the jury was free to judge the credibility of
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each witness it heard testify.
{¶ 48} After reviewing the record, we find that the testimony was properly admitted for
the sole purpose of showing Kaaz's motive, preparation, and plan to target J.R. as a victim
through the use of grooming. As such, we overrule Kaaz's second assignment of error.
III. Prosecutorial Misconduct
{¶ 49} Assignment of Error No. 3:
{¶ 50} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT AS HE WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE TRIAL
COURT ALLOWED THE PROSECUTING ATTORNEY TO ENGAGE IN MISCONDUCT.
{¶ 51} Kaaz argues in his third assignment of error that the prosecutor engaged in
misconduct during his trial.
{¶ 52} For a conviction to be reversed on the basis of prosecutorial misconduct, a
defendant must prove the prosecutor's acts were improper and that they prejudicially affected
the defendant's substantial rights. State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶
62. To demonstrate prejudice, a defendant must show that the improper remarks or
questions were so prejudicial that the outcome of the trial would clearly have been otherwise
had they not occurred. State v. Jones, 12th Dist. Butler No. CA2006-11-298, 2008-Ohio-865,
¶ 21.
{¶ 53} The focus of "an inquiry into allegations of prosecutorial misconduct is upon
the fairness of the trial, not upon culpability of the prosecutor." State v. Gray, 12th Dist.
Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. As such, prosecutorial misconduct "is not
grounds for error unless the defendant has been denied a fair trial." State v. Olvera-Guillen,
12th Dist. Butler No. CA2007-05-118, 2008-Ohio-5416, ¶ 27.
{¶ 54} During Kaaz's cross-examination, the state questioned Kaaz about the
allegations of sexual abuse. At one point, the prosecutor stated, "speaking of phone calls,
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you advised your parents you'd take a plea deal in this case." Kaaz's counsel immediately
objected, and the trial court sustained the objection. Kaaz did not answer or address the
state's question at all. The transcript indicates that a side-bar was held, which was not
transcribed in the record.2 Even so, the transcript later indicates that the state and Kaaz's
defense counsel discussed with the trial court whether the question would require a mistrial.
{¶ 55} The state indicated that the reason it sought to admit the conversation
between Kaaz and his parents when he mentioned the plea deal was to provide context for
Kaaz's later statement to his parents that he would "beat" the system and receive probation
rather than a prison sentence. There were no actual plea negotiations between the state and
Kaaz referenced in the prosecutor's question, and Kaaz was merely speaking to his parents
about his plans to manipulate the justice system. The state's attempt to question Kaaz
regarding his conversation with his parents was not made to indicate a failed attempt at plea
negotiations, nor was it an attempt to indicate that Kaaz expressed any guilt.
{¶ 56} Although the state later indicated why it was posing the question and the
issuewas cured by the defense's objection, the inference of Kaaz's willingness to plead –
regardless of his reason for doing so – was not necessary to prove the charges facing Kaaz,
and any gains hoped to be made by the state that Kaaz was attempting to avoid a prison
sentence pale in comparison to the victim's testimony and corroborating DNA evidence.3
2. Multiple times throughout the transcript, counsel would join the trial court at the bench for a sidebar.
However, none of the sidebar discussions were transcribed. Instead, the transcript would merely indicate that an
"off-the-record discussion" was held, and then the trial court would announce a decision as a result of the
sidebar. As a reviewing court that relies upon the record, the absence of such discussions diminishes our
review. Neither the state nor defense counsel raised any objection to the sidebars not being part of the record,
yet without such, we do not know what arguments or legal reasoning were specifically given by the respective
parties. When a decision of the trial court is being attacked, or supported, it is important to have a record of the
preceding discussions.
3. Kaaz's argument in this assignment of error clings to an assumed inference that the mention of a plea deal
could mean Kaaz was guilty. However, Kaaz not accepting the plea deal could easily lead to an inference that
Kaaz was not willing to plead to something he did not do. One could easily infer the state was offering a plea
deal because the state considered its evidence lacking. Therefore, the prejudice Kaaz assumes may not even
exist.
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Simply stated, it was unnecessary for the state to venture into this territory, yet, it is clear
Kaaz was not prejudiced to any extent that denied him a fair trial.
{¶ 57} Aware of the state's intent, this question did not rise to the level of
prosecutorial misconduct. While a plea deal would rarely be admissible at trial, the
prosecution had a good faith basis for attempting to ask the question. State v. Gillard, 40
Ohio St. 3d 226, 231 (1988) ("a cross-examiner may ask a question if the examiner has a
good-faith belief that a factual predicate for the question exists"). Furthermore, the trial court
specifically instructed the jury that statements made by the attorneys were not evidence and
should not be considered as evidence. Given this instruction and the immediate sustaining
of Kaaz's objection to the question, the jury would not have considered the prosecutor's
question.
{¶ 58} Kaaz also claims prosecutorial misconduct because the state referred to him
during its opening statement as a "pedophile" and a "predator." While Kaaz argues that this
name-calling was perpetuated to damage his character and prejudice him in the eyes of the
jury, we disagree. The context of the statements, as indicated in the trial transcript, indicate
that the state was telling the jury what it believed the evidence would prove, specific to the
charges against Kaaz. Specifically, the full statement was, "the evidence in this case will
prove beyond a reasonable doubt that defendant is a predator and a pedophile and that over
the course of the last seven years he has repeatedly sexually molested and raped" J.R.
{¶ 59} The terms "predator" and "pedophile" are descriptive labels that are inherently
connected to sexual perpetrators and are arguably used to stigmatize those labeled as such.
While the statement was perhaps inartful or needless, it did not rise to the level of
prosecutorial misconduct where the statement was only made in one instance by the state,
not repeatedly, and was specific to what the evidence was expected to show. The ultimate
decision as to whether Kaaz was guilty or innocent of specific conduct was left to the jury,
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and no other incidents indicate in the record that the state was attempting to stigmatize Kaaz
unfairly.
{¶ 60} Nor is there any indication in the record that the two words used in opening
statements prejudiced Kaaz or rendered his four-day trial unfair. This is especially true
where there was overwhelming evidence of Kaaz's guilt, including testimony from the victim
and DNA evidence that corroborated her testimony. As such, and having found no
prosecutorial misconduct, we overrule Kaaz's third assignment of error.
IV. Motion for Mistrial
{¶ 61} Assignment of Error No. 4:
{¶ 62} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY FAILING TO GRANT HIS REQUEST FOR A MISTRIAL AFTER THE
PROSECUTOR MADE A STATEMENT INDICATING THAT THE DEFENDANT-APPELLANT
WAS WILLING TO TAKE A PLEA AGREEMENT.
{¶ 63} Kaaz argues in his fourth assignment of error that the trial court erred by not
granting his motion for a mistrial after the state referenced Kaaz taking a plea deal with the
state.
{¶ 64} A mistrial should not be ordered merely because of some error or irregularity at
trial. State v. Partin, 12th Dist. Butler No. CA2012-09-189, 2013-Ohio-2858. Instead,
"mistrials need be declared only when the ends of justice so require and a fair trial is no
longer possible." State v. Garner, 74 Ohio St. 3d 49, 59 (1995). A trial court's decision to
deny a motion for a mistrial is within the sound discretion of the trial court. State v. Gilbert,
12th Dist. Butler No. CA2010-09-240, 2011-Ohio-4340, ¶ 83. "An appellate court will not
disturb the exercise of this discretion absent a showing that the accused has suffered
material prejudice." State v. Blankenship, 102 Ohio App. 3d 534, 549 (12th Dist.1995).
{¶ 65} As previously discussed, the trial court denied Kaaz's request for a mistrial
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after the prosecutor made reference to Kaaz's conversation with his parents in which he
indicated his intent to strike a plea deal to "game" the justice system. However, and for the
same reasons we found that the prosecutor did not engage in misconduct, we find that the
trial court did not abuse its discretion in denying Kaaz's request for a mistrial.
{¶ 66} Again, we decline to accept Kaaz's invitation to assume prejudice occurred.
The prosecutor's question did not reference anything in regard to actual plea negotiations.
Nor did it necessarily imply Kaaz's guilt. The trial court immediately sustained defense
counsel's objection and Kaaz did not answer or address the plea issue. The jury was
properly instructed that attorney statements were not evidence, and we have no reason to
believe the jury did not fully and faithfully follow the court's instructions.
{¶ 67} After reviewing the record, we find that the trial court did not abuse its
discretion in denying Kaaz's motion for a mistrial, and we overrule his fourth assignment of
error.
V. Vouching for Credibility
{¶ 68} Assignment of Error No. 5:
{¶ 69} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY PERMITTING A SOCIAL WORKER TO VOUCH FOR THE CREDIBILITY
OF AN ALLEGED VICTIM OF SEXUAL ABUSE.
{¶ 70} Kaaz argues in his fifth assignment of error that the trial court erred by
permitting a witness to bolster the credibility of the victim.
{¶ 71} Generally, lay witnesses are prohibited from testifying as to another witness'
veracity. State v. Cappadonia, 12th Dist. Warren No. CA2008-11-138, 2010-Ohio-494, ¶ 36.
"[I]t is the fact-finder who bears the burden of assessing the credibility and veracity of
witnesses." Id. at ¶ 17.
{¶ 72} Kaaz argues that the state used two witnesses to bolster the credibility of J.R.
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Kaaz claims that the forensic interviewer from the Mayerson Clinic and the caseworker
supervisor testified improperly as to J.R.'s credibility.
A. Mayerson Center Forensic Interviewer
{¶ 73} Regarding the interviewer, the state asked her to describe J.R. "generally"
when she was interviewed at the Center. The interviewer then answered
Very engaging. I felt like she really gave thought to the questions
that were being asked of her and her answers[,] and corrected
herself if she misspoke. I felt like she was trying to be as
comprehensive and informative as she could with me because
she obviously knew why she was there and she wanted to be
able – I felt like she wanted to be able to provide me with as
much information as she could so that I could do my job.
This testimony did not address J.R.'s veracity, rather it addressed generally the impression
the interviewer had during her time with J.R. in regard to the quality of the interview and how
J.R. engaged with her during that time. Not one word in the interviewer's testimony relates to
credibility, but rather, to J.R. as being comprehensive and informative. Moreover, the state
asked for only a "general" description of J.R., and never asked the interviewer to relay her
opinion as to J.R.'s credibility.
B. Child Protection Unit Supervisor
{¶ 74} Kaaz also asserts that the state offered testimony from the caseworker
supervisor in an effort to bolster J.R.'s credibility. During the supervisor's testimony, she
discussed that she and her caseworker found J.R.'s statements regarding the chair in Kaaz's
garage important, and that she reported that information to police specifically. The state then
asked, "was the identification of that chair, in particular, important to you?" The supervisor
responded, "well, I think once we found out that the chair did, in fact, exist, it showed us that
[J.R.] was a credible witness."
{¶ 75} While this testimony did address J.R.'s credibility, the testimony was specific to
the allegations she made against Kaaz to children services and how J.R.'s information was
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relevant when determining whether allegations should be substantiated. As such, the
supervisor's statements regarding J.R.'s credibility spoke directly to the supervisor's reaction
when learning the police seized a chair from Kaaz's garage.
{¶ 76} The supervisor's ultimate decision to believe that physical evidence, in her
opinion, corroborated J.R.'s statement regarding the existence of a chair was of a limited
nature. Testifying to the fact that physical evidence exists to corroborate a victim's statement
is not an unfair bolstering of the victim. The testimony was not offered in an attempt to make
the jurors believe that J.R.'s testimony in its entirety was credible. This line of testimony was
not used to supplant the jury's role and responsibility to assess J.R.'s credibility. We also
note that the court instructed the jury that it alone determined a witness' credibility and what
weight should be given, if any, to testimony.
{¶ 77} Having found that the state's witnesses were not used to bolster J.R.'s in-court
credibility, we find that the trial court did not improperly admit testimony from these
witnesses. Therefore, we overrule Kaaz's fifth assignment of error.
VI. Hearsay
{¶ 78} Assignment of Error No. 6:
{¶ 79} THE TRIAL COURT ERRED OT [SIC] THE PREJUDICE OF DEFENDANT-
APPELLANT BY ADMITTING NUMEROUS INSTANCES OF IMPERMISSIBLE HEARSAY
EVIDENCE.
{¶ 80} Kaaz argues in his sixth assignment of error that the trial court impermissibly
admitted hearsay evidence at his trial.
{¶ 81} As previously stated, the admission or exclusion of evidence rests within the
sound discretion of the trial court. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012
Ohio 4769, ¶ 25. Absent an abuse of discretion, an appellate court will not disturb a trial
court's ruling as to the admissibility of evidence. State v. Issa, 93 Ohio St. 3d 49, 64 (2001).
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{¶ 82} According to Evid.R. 801(C), hearsay "is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted." Hearsay is not admissible unless it falls within one of the permissible
hearsay exceptions. Evid.R. 802. However, where the evidence is offered to show the effect
on the listener, rather than to prove the truth of the matter asserted, the out of court
statement is nonhearsay. State v. Kersbergen, 12th Dist. Butler No. CA2014-10-218, 2015-
Ohio-3103, ¶ 50.
A. Child Protection Unit Caseworker and Supervisor
{¶ 83} Kaaz first argues that the trial court permitted impermissible hearsay testimony
when the caseworker testified to what he and J.R. discussed. During the caseworker's
testimony, he testified that J.R. told him that Kaaz sexually abused her since the age of nine,
and that Kaaz engaged in vaginal intercourse with her on the chair in the garage. Thereafter,
the casework supervisor testified that J.R. also told her that Kaaz engaged in vaginal
intercourse with her on the chair in the garage. The witnesses also testified that J.R. told
them that Kaaz would sometimes ejaculate on the chair.
{¶ 84} The testimony of these two witnesses was not hearsay because it was not
offered to prove the truth of the matter asserted, but rather to show why the children services
agency continued its investigation and why the agency workers went to police regarding the
potential existence of a chair in Kaaz's garage. The state's questioning was meant to
establish a timeline of events regarding how the children services agency received the
allegation that Kaaz provided alcohol and marijuana to the children and how that ended in
Kaaz's arrest for sexual abuse. However, such testimony was not offered to prove that Kaaz
had, in fact, engaged in vaginal intercourse with J.R.
B. J.R.'s Sisters
{¶ 85} Kaaz next argues that two of J.R.'s siblings offered hearsay testimony when
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they testified about statements J.R. made to them regarding Kaaz's sexual conduct with her.
However, and similar to the testimony discussed above, this testimony was offered to show
the effect the statements had on the siblings, rather than to prove the truth of the matter
asserted. In fact, the state's line of questioning for one sibling was specific to whether that
sibling reported the abuse to anyone. The sibling described the way that J.R. acknowledged
the sexual abuse, and the state immediately asked, "how did you react to it" and later asked
why the sibling decided not to tell anyone about the abuse. The other sibling also testified
that J.R. admitted the abuse, and then testified at length about how she felt upon the
disclosure and what she did and did not do as a reaction to what her sister told her. The
siblings' testimony was offered to show the effect of J.R.'s statement upon them, not to prove
that Kaaz sexually abused J.R.
{¶ 86} Even if the statements of J.R.'s siblings were to be considered hearsay as
Kaaz suggests, those statements would only qualify as hearsay statements because one of
J.R.'s siblings testified prior to J.R.'s testimony. Pursuant to Evid.R. 801(D)(1)(b), J.R.'s
siblings could have testified as to J.R.'s out-of-court statements as nonhearsay if offered after
J.R. had testified and had been challenged on cross-examination. Therefore, the testimony
from J.R.'s siblings as to her prior out-of-court statements would be harmless error given that
the testimony was admissible after J.R. testified.4
{¶ 87} J.R. testified as to what she told her siblings and was subject to staunch cross-
examination. From the beginning of the trial, to the end, the defense strategy was that J.R.
was not telling the truth regarding the claimed sexual activity taking place between her and
Kaaz. J.R.'s testimony revealed that her out-of-court statements made to her siblings were
4. Evid.R. 801(D) provides, "a statement is not hearsay if the declarant testifies at trial * * * and is subject to
cross-examination concerning the statement and the statement is * * * consistent with the declarant's testimony
and was given under oath subject to cross-examination * * * and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive."
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completely consistent with her statements made in court. We have previously acknowledged
the admissibility of out-of-court statements made to an individual by a child-declarant who
subsequently is in court and available for cross-examination. State v. Hamilton, 77 Ohio
App.3d 293, 303 (12th Dist.1991). While not every out-of-court statement that the child-
declarant made would necessarily be admissible, we have indicated previously the victim's
specific statements pertaining to the acts of abuse would be admissible. Id. at 303. If a
victim testifies, as J.R. did here, subsequent testimony by others to demonstrate her
consistency is not hearsay if offered to rebut an express or implied charge that the victim-
witness was not being truthful in his or her accusations.
{¶ 88} After reviewing the record, we find that the testimony presented from all
witnesses was properly admitted, and that none was inadmissible hearsay. As such, Kaaz's
sixth assignment of error is overruled.
VII. Consecutive Sentences
{¶ 89} Assignment of Error No. 8:
{¶ 90} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY IMPOSING CONSECUTIVE SENTENCES.
{¶ 91} Kaaz argues in his eighth assignment of error that the trial court erred in
imposing consecutive sentences.
{¶ 92} We review the imposed sentence under the standard of review set forth in R.C.
2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court does not review the
sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C.
2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the
appellate court finds by clear and convincing evidence that "the record does not support the
trial court's findings under relevant statutes or that the sentence is otherwise contrary to law."
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Marcum at ¶ 1.
{¶ 93} A sentence is not clearly and convincingly contrary to law where trial court
"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly imposes postrelease control, and sentences the defendant within the
permissible statutory range." State v. Julious, 12th Dist. Butler CA2015-12-224, 2016-Ohio-
4822, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only when
it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by
the record." State v. Brandenburg, 146 Ohio St. 3d 221, 2016-Ohio-2970, ¶ 1.
{¶ 94} A consecutive sentence is contrary to law where the trial court fails to make the
consecutive sentencing findings as required by R.C. 2929.14(C)(4). State v. Marshall, 12th
Dist. Warren No. CA2013-05-042, 2013-Ohio-5092, ¶ 8. Pursuant to R.C. 2929.14(C)(4), a
trial court must engage in a three-step analysis and make certain findings before imposing
consecutive sentences. State v. Smith, 12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-
1093, ¶ 7. Specifically, the trial court must find that (1) the consecutive sentence is
necessary to protect the public from future crime or to punish the offender, (2) consecutive
sentences are not disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public, and (3) one of the following applies:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
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R.C. 2929.14(C)(4).
{¶ 95} "In order to impose consecutive terms of imprisonment, a trial court is required
to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry." State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these
findings, it must be clear from the record that the court engaged in the required sentencing
analysis and made the requisite findings. Smith at ¶ 8.
{¶ 96} After reviewing the record, we find that the trial court's sentence was not
contrary to law and was fully supported by the record. The trial court made the requisite
findings regarding consecutive sentences during the sentence hearing, and in its sentencing
entry. The trial court also reiterated that the abuse began when J.R. was only nine years old,
and that it happened repeatedly for years. The record demonstrates that the sexual conduct
included vaginal and anal intercourse, as well as oral sex, kissing, and touching. This
conduct began when the child was nine and continued to occur multiple times a week, never
going longer than a month without repeated violations of the child.
{¶ 97} After a full review of the record, we find that the trial court's sentence was not
contrary to law and was otherwise fully supported by the record. As such, Kaaz's eighth
assignment of error is overruled.
VIII. Cumulative Error
{¶ 98} Assignment of Error No. 9:
{¶ 99} THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS LED TO A
WRONGFUL VERDICT IN VIOLATION OF DEFENDANT-APPELLANT'S
CONSTITUTIONAL RIGHTS OF DUE PROCESS.
{¶ 100} Kaaz argues in his final assignment of error that the cumulative effect of
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errors made at his trial resulted in an invalid verdict.
{¶ 101} According to the cumulative error doctrine, "a conviction will be reversed
where the cumulative effect of errors in a trial deprives a defendant of the constitutional right
to a fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal." State v. McClurkin, 12th Dist. Butler No. CA2007-03-071,
2010-Ohio-1938, ¶ 105.
{¶ 102} "'There can be no such thing as an error-free, perfect trial, and * * * the
Constitution does not guarantee such a trial.'" State v. Hill, 75 Ohio St. 3d 195, 212 (1996),
quoting United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 1980 (1983). The accused
is to be given a fair trial, not a perfect trial. Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357
(1974).
{¶ 103} After finding no errors had occurred during Kaaz's trial, we find that he was
not deprived of a fair trial, and the cumulative error doctrine is inapplicable. Kaaz's ninth and
final assignment of error is, therefore, overruled.
{¶ 104} Judgment affirmed.
S. POWELL, P.J., concurs.
M. POWELL, J., concurs separately.
M. POWELL, J., concurring separately.
{¶ 105} I concur with the majority opinion but write separately to express my concerns
regarding the admission, as nonhearsay, of J.R.’s statements to her siblings about appellant
sexually abusing her.
{¶ 106} The record reflects that appellant had previously objected to the testimony of
the social workers as to what J.R. had told them on the ground the statements were hearsay.
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When J.R.’s siblings testified about what J.R. had told them, the trial court merely confirmed
that defense counsel’s objection was part of a continuing objection and overruled it. If there
were any discussions between the trial court and defense counsel concerning this testimony
and the objections to it, such discussions are not reflected in the record.
{¶ 107} The sole basis upon which the state relies on appeal in arguing that J.R.’s
statements to her siblings about the sexual abuse were properly admitted is that the
statements were offered not to prove the truth of the matter asserted in the statements, but
rather, "to show the effect of the statement on the listener * * * and how they reacted."5
Although the state does not specify how the statements affected J.R.’s siblings or how the
siblings reacted to the statements, the state references to the pages of the transcript where
J.R.’s siblings variously testified that what J.R. told them made them mad, upset, or cry, and
that they didn’t know what to do about it, felt responsible, and encouraged J.R. to tell
someone. However, the relevance of the effect that J.R.’s disclosures had on her siblings
and how they reacted to it is not apparent.
{¶ 108} I recognize that in defining "hearsay" Evid.R. 801(C) does not impose any
explicit requirement that the purpose for which a statement is offered be relevant to any
material trial issue. Relevance is a separate issue addressed in Article IV of the Ohio Rules
of Evidence, and there was no objection based upon relevance. However, as a practical
matter, offering the statements for irrelevant purposes belies the state’s claim that the
statements were not being offered to prove the truth of the matter asserted. There is no
indication in the record that the trial court gave any consideration to the relevance of the
effect J.R.’s statements had upon her siblings and how they reacted to them when it
determined whether the statements were hearsay.
5. Because the state advances this single justification for the admission of J.R.'s statements to her siblings as
non-hearsay, this concurring opinion will not address any alternative basis for admission which may be supported
by the record.
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{¶ 109} In my view, J.R.’s statements to her siblings about the sexual abuse should
not have been admitted as non-hearsay statements because they were offered to show how
they affected J.R.’s siblings and how the siblings reacted to the statements. Nonetheless, I
concur in the affirmance of appellant’s convictions because J.R. testified and was thus
subject to cross-examination as to the substance of her statements to her siblings, and J.R.’s
testimony, in conjunction with other evidence, supports the verdicts. Therefore, any error in
the admission of the statements for the reason advanced by the state is harmless error.
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