Volume 1
Issue 2
OHIO SEXUAL ASSAULT CASE LAW REVIEW1
July 1, 2012 – December 31, 2012
Editor: Todd C. Schroeder, Putnam County Assistant Prosecutor
Phone: 419-523-3600
Fax: 419-523-4519
Email: putcoprosecutor2@bright.net
SUPREME COURT OF OHIO
State of Ohio v. Williams, 2012 Ohio 5698
The Supreme Court ruled that evidence Defendant engaged in sexual relations with another
teenage boy was admissible under Evid. R. 404 (B) as evidence of his scheme plan on system.
Prior to empaneling a jury, the state moved to admit evidence that Williams had had a similar
relationship with a different teenage boy, A.B., a 16-year-old member of the high school swim
team that Williams coached in 1997. In support of its motion, the state asserted that the fact that
Williams's relationship with A.B. paralleled that with J.H., indicated a course of conduct
constituting a common plan, demonstrated a distinct pattern of sexual conduct constituting a
modus operandi, and, by reasonable inference, tended to prove Williams's intent to achieve
sexual gratification with teenage males. Williams objected to the admission of testimony of A.B.
Relying on Curry, 43 Ohio St.2d 66, the appellate court stated that there "are only two situations
in which other-acts evidence is admissible to show a defendant's 'scheme, plan, or system': (1) to
show the background of the alleged crime or (2) to show identity." Concluding that identity was
not at issue, that the other acts with A.B. were remote and distinct occurrences, and that the
testimony of A.B. and Cornell was unduly prejudicial, the court reversed the trial court and
remanded the matter for further proceedings. However, the Supreme Court did not limit
admissibility to these two situations.
In Curry, the Court interpreted R.C. 2945.59 and stated that "scheme, plan, or system" evidence
is relevant in two general factual situations: those in which the other acts form part of the
immediate background of the alleged act that forms the foundation of the crime charged in the
indictment and those involving the identity of the perpetrator. Curry, 43 Ohio St.2d at 72. But we
did not limit admissibility to those two situations. Moreover, Curry predated Evid.R. 404(B), so
it did not consider or apply that rule.
The first step 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. Evid.R. 401. The next step is to consider whether evidence of the other crimes,
wrongs, or acts is presented to prove the character of the accused in order 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). The third step is to consider whether the probative value
of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See
Evid.R 403.
1
Made possible by Violence Against Women Act (VAWA) funding.
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As to the first step of our three-part test for the admission of other acts evidence, A.B.'s
testimony was relevant because it tended to show the motive Williams had and the preparation
and plan he exhibited of targeting, mentoring, grooming, and abusing teenage boys.
As to the second step, contrary to the view expressed by the court of appeals, the state did not
offer the evidence of the Williams-A.B. relationship to show that abusing J.H. was in conformity
with Williams's character. In fact, the trial court gave two limiting instructions that this evidence
was not being offered to prove Williams's character—one just prior to the testimony of A.B., and
one prior to deliberation. We presume the jury followed those instructions.
As to the third step, this evidence is not unduly prejudicial, because the trial court instructed the
jury that this evidence could not be considered to show that Williams had acted in conformity
with a character trait. This instruction lessened the prejudicial effect of A.B.'s testimony, and
A.B. corroborated J.H.'s testimony about the sexual abuse, which had been denied by Williams.
Thus, Evid.R. 404(B) permitted admission of evidence of Williams's prior crime because it
helped to prove motive, preparation, and plan on the part of Williams, and evidence that
Williams had targeted teenage males who had no father figure to gain their trust and confidence
and groom them for sexual activity with the intent of sexual gratification may be admitted to
show the plan of the accused and the intent for sexual gratification.
State of Ohio v. Williams, 2012 Ohio 5699
In this case the Supreme Court held that a reviewing court should review the trial court's R.C.
2941.25 (merger of offenses) determination de novo.
SECOND APPELLATE DISTRICT
State of Ohio . Kuritar, 2012 Ohio 3849
R.C. 2907.06(B) provides that: "No person shall be convicted of a violation of this section
[Sexual Imposition] solely upon the victim's testimony unsupported by other evidence."
Defendant argued that there was no evidence that he knew that his conduct would be offensive to
the victim and that there was no corroboration of the victim's testimony that his touching of her
breast was, in fact, offensive to her. The court concluded that even if there was no independent
corroboration of a victim's testimony that a sexual contact was offensive to the victim,
corroboration of that particular element of the offense is required, when the victim’s testimony as
to all other elements has been corroborated.
State of Ohio v. Hopkins, 2012 Ohio 5536
The court found no error in the prosecutor’s voir dire statement to potential jurors that her client
was "the People of the State of Ohio" and that her role was to present evidence so they could
determine whether the alleged crimes occurred. Nor was there prosecutorial misconduct when
the prosecutor stated, "That's how you know she's telling the truth" and "you know it's the truth."
When read in context, these statements rebutted Defendant’s prior allegation that J.R. was lying.
Finally, there was no misconduct based on the prosecutor telling jurors what Defendant was
thinking or feeling. Having reviewed the cited transcript pages, they reflect the prosecutor's
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closing argument summary of the events that occurred before, during, and immediately after the
rape of J.R..
THIRD APPELLATE DISTRICT
State of Ohio v. Brown, 2012 Ohio 3904
Defendant argued that he was deprived of a fair trial when the prosecutor stated during closing
argument that sexual gratification was not required, even though it is required for there to be
"sexual contact" for the offense of gross sexual imposition. The court disagreed.
During closing argument, the prosecutor stated "[w]hy, it seems to be suggested that we have to
establish that [Brown] got off sexual gratification? This type of crime isn't about, necessarily,
gratification, it is about control." Defense counsel objected to the "characterization of what the
crimes are about" since "[t]hat's a province of the Court to instruct." The trial court overruled the
objection, finding that this was a subject of the testimony at trial. Thereafter, the prosecutor
stated, "[w]e don't have to show sexual gratification necessarily. But when you want comments
and make words like rub your pussy on my dick, I can't imagine what else is on his mind."
To begin with, the prosecutor's comments do not appear to be in reference to an element of any
offense but the general character of sexual offenses. Aside from that, the State was not required
to show that Brown was actually sexually aroused or gratified, but rather, that he touched S.M.
for that purpose. Regardless, the trial court properly instructed the jury that sexual contact
requires that the offender acts with the purpose of sexually arousing or gratifying himself or the
victim. A jury is presumed to follow the trial court's instructions.
State of Ohio v. Barnett, 2012 Ohio 3748
Defendant argued that R.C. 2907.07 [Importuning] was unconstitutionally applied in this case
due to law enforcement initiating contact with him and attempting to solicit him to engage in
sexual activity with a minor. He further argued that his text messages were merely "about sex"
and constitutionally protected under the First Amendment.
The importuning statute has previously been found to not be unconstitutionally vague,
overbroad, or invalid under the First Amendment because it does not restrict speech about sex in
general, nor does it restrict adults and minors from communicating about sex. The statute also
does not restrict speech about adults engaging in sexual conduct with minors. The statute
prohibits only speech that solicits minors to engage in illegal sexual activity with adults.
The law permits a police officer to go as far as to suggest an offense and to provide the
opportunity for the defendant to commit the offense. If the defendant is already disposed to
commit the offense and acts pursuant to a criminal idea or purpose of his own, then there is no
entrapment and the defendant can be found guilty.
The record in this case demonstrates that law enforcement merely suggested an offense and
provided defendant with the opportunity to commit the offense. Defendant asked the minor for a
full-body picture so he would know what she looked like "if [he] changed his mind about doing
it with [her]." Then, he told the minor "how to get some practice in" by getting naked, putting her
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finger in her vagina, and moving it in and out. When the alleged minor text messaged that this
made her "sore," he told her that she just had to get used to it. Then, when the alleged minor
expressed concern that she could get pregnant, he assured her that only happens if she has sex
without a condom, and he always wears one. When the alleged minor asked what else he could
teach her, he told her that some girls suck on the guy's penis, and some guys lick the girl's
vagina. When the alleged minor asked if he would do that to her (lick her vagina), he text
messaged, "[s]ure." Based on this the importuning statute was found to have been violated.
State of Ohio v. Muller, 2012 Ohio 3530
Defendant argued that the trial court committed prejudicial error by allowing J.W. to testify
during the State's case-in-chief regarding a similar occurrence in Michigan in violation of Evid
Rule 404(B).
With respect to the sexual battery charges for H.D., A.K., and D.M., Defendant asserted a
defense of consent. Defendant did not deny the sexual conduct or that he knew the girls were
intoxicated. Thus, Defendant’s defense to the sexual battery charges was that he did not intend to
commit sexual battery, but that he intended to have consensual sexual intercourse with H.D.,
A.K., and D.M. The element of intent was therefore a material issue at trial.
J.W.'s testimony of Defendant's sexual conduct has a temporal, modal, and situational
relationship with the acts constituting the crimes charged. In all cases, the victims had been
drinking heavily at parties where Defendant was present. In all cases, Defendant was either
staying the night at the same residence as the victims or had access to where they were sleeping.
In all cases, the victims testified that they were either "passed out", "passing in and out of
consciousness", or too sick and "didn't want to move" due to overconsumption of alcohol, which
is when Defendant had access to them. The stark similarity between the sequence of events that
occurred in the acts charged and the prior act indicate a modal and situational relationship.
Further, there was a temporal relationship as all of the acts constituting the crimes charged
occurred between February and September of 2009. The acts testified to by J.W. occurred in
December of 2009. Therefore, the other acts evidence as testified to by J.W. is probative of
Defendant’s intentional conduct in the commission of the instant offenses. Accordingly, there
was no error in the admission of J.W.'s other acts testimony.
Defendant further argued that the trial court erred by prohibiting him from introducing opinion
evidence of untruthfulness in violation of Evid R. 608(A). There is well-established Ohio
precedent that generally prohibits the use of opinion testimony regarding a witness'
untruthfulness. In light of the ample case law that favors the exclusion of this type of opinion
evidence, the trial court did not abuse its discretion in excluding the opinion testimony.
FOURTH APPELLATE DISTRICT
State of Ohio v. Keeley, 2012 Ohio 3564
Defendant was charged with rape and argued that the evidence did not establish that the victim
suffered from a “substantial impairment.” The phrase "substantial impairment" is not defined.
Here, four witnesses placed R.V's cognitive mental and emotional level at that of a child below
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the age of thirteen. This age is also the threshold at which the Ohio General Assembly has
deemed that no one can give consent to sex. Therefore, the evidence was sufficient to conclude
the victim had a substantial impairment at the time sexual conduct occurred.
Defendant further argued the prosecution made improper remarks during closing argument, such
as calling the Defendant’s testimony "Un-credible," "a bold faced lie," "preposterous" and "just
crap." It is true that neither the prosecution nor the defense may vouch, or offer their personal
beliefs, concerning witness credibility. These remarks do rise to the level of improper since the
Defendant did place his credibility into question when he testified that he lied to police about
inserting his finger into R.D. during their encounter. Moreover, he has attempted to cast someone
who has been characterized with a pre-teen cognitive level as the sexual aggressor in these
encounters — something that strains credulity if the prosecution's testimony is to be believed,
and the trier of fact obviously did so.
State of Ohio v. Topping, 2012 Ohio 5617
The prosecutor stated: "I submit to you that the evidence presented by the defense * * * is not
worthy of belief. The evidence presented on behalf of the State in this case is quite worthy of
belief. Let's talk about it a little bit." The prosecutor then argued that among the defense
witnesses, "there seemed to be some lack of memory and there was discrepancies." He pointed
out more specifically the defense witnesses' testimony and the discrepancies and inconsistencies.
The prosecutor also pointed out the defense witnesses' biases. He further asserted that some of
the defense witnesses' testimony did not make sense.
The prosecutor did not imply that he possessed knowledge of facts outside the record or placed
his own personal credibility at issue. Instead, the prosecutor argued that based upon the evidence
presented at trial, the state's witnesses presented the more credible account of the events.
Furthermore, the prosecutor argued that the defense witnesses' accounts were not credible based
upon the evidence presented at trial and the reasonable inferences that could be drawn from it.
The prosecutor's comments constituted fair comment on the witnesses' credibility based upon
their testimony. The prosecutor's closing argument presented the reasons why appellant's and his
witnesses' testimony was not reliable or credible and thus did not amount to the prosecutor
giving a personal opinion regarding credibility. Instead, the argument pointed out the
discrepancies, inconsistencies, and lack of reasonable explanations among the defense witnesses
and invited the jury to weigh the witnesses' credibility. Thus, the comments were not improper.
FIFTH APPELLATE DISTRICT
State of Ohio v. Scott, 2012 Ohio 3482
In a case involving multiple counts of rape against his daughter, appellant moved to exclude
evidence of ongoing abuse from the time his daughter was 11 years old, and evidence of the
homicide allegation involving her younger sibling. The state argued the evidence was admissible
to show the state of mind of the victim, including the delay in reporting the abuse. The trial court
agreed, and ruled the evidence was admissible subject to a limiting instruction.
The Appellate court found the challenged other-acts evidence helped demonstrate appellant
purposely compelled his daughter to submit by force or threat of force. In a case involving a
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minor child and a parent, testimony which tends to establish psychological force is not improper
propensity evidence, but instead tends to show an element of the crime, force, which is a material
issue at trial.
Defendant further argued testimony from younger family relatives and friends that the victim
told them about ongoing sexual abuse by her father since she was 11 years old was improper.
The Appellate court disagreed citing Evid. R. 801(D)(1)(b) as permitting such testimony when
the victim testifies at the trial and is subject to cross-examination concerning the statement, and
the statement is consistent with victim's testimony and is offered to rebut an express or implied
charge against the victim of recent fabrication or improper influence or motive. Implying
fabrication or improper motive in opening statements is sufficient to invoke 801(D)(1)(b).
The Appellate court further found that error occurred in running a kidnapping sentence and rape
sentence concurrently when there should have been merger of those offenses and thus one
conviction and sentence.
State of Ohio v. Steele, 2012 Ohio 3777
At the close of the state's presentation of evidence and immediately prior to resting its case, the
state moved to amend the time period alleged in the indictment pursuant to Criminal Rule 7(D).
The amendment expanded the time period contained in the Indictment from "May 1, 2009
through September 1, 2009," to "March 1, 2009 through September 1, 2009."
Impreciseness and inexactitude of the evidence at trial is not "per se impermissible or necessarily
fatal to a prosecution." Sexual assault cases involving children often make it more difficult to
ascertain specific dates. The victims are young children who may reasonably be unable to
remember exact times and dates of psychologically traumatic sexual abuses. An allowance for
reasonableness and inexactitude must be made for such cases considering the circumstances.
The question in such cases is whether the inexactitude of temporal information truly prejudices
the accused's ability fairly to defend himself.
In State v. Sellards, the Supreme Court gave two examples of when the failure to provide
specific dates and times could be prejudicial to the accused. The court first noted that if the age
of the victim were an element of the crime with which the accused had been charged and the
victim bordered on the age required to make the conduct criminal, then the failure to provide a
more specific time frame would be prejudicial. The second situation is where "the defendant had
been imprisoned or was indisputably elsewhere during part but not all of the intervals of time set
out in the indictment. Again, under such circumstances, the inability of the state to produce a
greater degree of specificity would unquestionably prejudice the defense.
In this case, the inexactitude of temporal information did not truly prejudice defendant’s ability
fairly to defend himself.
State of Ohio v. Pore, 2012 Ohio 3360
Defendant was convicted and sentenced for Rape, Aggravated Burglary and Kidnapping and
argues that the crimes are allied offenses of similar import.
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In the case at bar, Pore armed himself with a knife and deceptively gained entrance to E.T.'s
home. Threatening E.T. with the knife, Pore moved E.T. from the kitchen to the bedroom. He
then ordered E.T. to remove her clothes. At that point, Pore moved E.T. at knifepoint from the
bedroom to the living room in order to lock the front door. Pore then forced E.T. at knifepoint to
return to the bedroom where the assault occurred.
With respect to the charge of Aggravated Burglary, this crime was complete when Pore
deceptively gained entrance into the home. This act was separate, distinct from the subsequent
Rape and Kidnapping. Accordingly, under the facts of this case Aggravated Burglary is not an
allied offense of either Rape or Kidnapping. Thus, Pore can be convicted and sentenced for
Aggravated Burglary.
However the commission of the Kidnapping was merely incidental to the Rape. The restraint and
movement had no significance apart from facilitating the Rape. No evidence exists in the record
of substantial movement, prolonged restraint, or secretive confinement. The restraint did not
subject the victim to a substantial increase in the risk of harm separate from that involved in the
underlying Rape. Accordingly, it was plain error not to find the offenses of Rape and Kidnapping
to be allied offenses of similar import.
State of Ohio v. Kasler, 2012 Ohio 6073
Defendant argued that the prosecutor committed misconduct in questioning a defense witness.
On cross-examination, the prosecutor asked Ms. Mowery why, when the prosecutor talked to her
the week before, she told the prosecutor that she did not remember anything from the night in
question. The witness stated that she did not remember saying that to the prosecutor.
Evid. R. 613(A) provides that in examining a witness concerning a prior statement, whether
written or not, the statement need not be shown nor its contents disclosed to the witness at that
time, but on request shall be shown or disclosed to opposing counsel. Counsel for Defendant did
not pursue the issue of the prior statement made by the witness, and when the witness denied
making the statement, the prosecutor moved on. Nothing in the record suggests that the
prosecutor asked the question without a good faith belief that the witness had in fact made the
statement. Further, the trial court instructed the jury at the end of the trial that the evidence does
not include any statement of counsel made during the trial. The prosecutor did not commit
misconduct in asking the witness this question.
SIXTH APPELLATE DISTRICT
State of Ohio v. Turner, 2012 Ohio 3863
This case permitted evidence that the defendant apologized to the victim by stating “Forgive me,
I’m drunk” and, more significantly, that the victim was granted a civil protection order. The
appellate court concluded that evidence that a civil protection order was granted and the
additional evidence that defendant violated is relevant to establish that the victim was fearful of
her safety made it more probable that defendant did the contested acts.
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Defendant further argued that even if relevant it violated Evid. R. 404(B) because it allowed the
jury to infer "that [he] was dangerous and that his family, at the very least, posed a risk of danger
to the victim. More importantly the admission of this evidence permitted the jury to infer that
[appellant] had threatened [the victim] in the room." In opposition, the state argued that the
violation of the civil protection order corroborated appellant's statements to the victim that he
would "get it" the next time, which evidenced appellant's motive or intent. The state also argued
that the testimony was circumstantial evidence of the threat of force. The court concluded that
the state’s arguments were more persuasive.
Any prejudicial effect caused by the evidence concerning either its issuance or its violation was
minimized by the fact that the court did not permit testimony of the details surrounding how the
civil protection order was obtained or violated.
EIGTH APPELLATE DISTRICT
State of Ohio v. Bonneau, 2012 Ohio 3258
The trial court denied defendant’s request to sever counts relating to two different victims and
separated by eleven years. Appellate court concluded joinder was proper because the crimes
were related in character and manner and because the evidence as to each victim was simple,
direct, and capable of being segregated. The jury's not guilty verdicts as to the counts relating to
A.F. and its guilty verdicts as to the counts relating to M.S. demonstrated that the jury considered
each victim separately.
State of Ohio v. West, 2012 Ohio 3151
The trial court properly allowed the state to amend the indictment during trial to conform to the
evidence. The original indictment alleged that the crimes occurred from September 1, 1998 until
June 1, 2004. The amended indictment alleged that the offenses occurred from June 2000 until
June 2004. The amendment shortened the range of time in which the alleged offenses occurred,
and remained within the range of time alleged in the original indictment, thus causing no
prejudice or surprise to defendant.
Further, trial court properly permitted nurse to provide an explanation as to why children often
delay their disclosures of sexual abuse. Defendant claimed the testimony was offered for the sole
purpose of improperly bolstering the victim's credibility. The nurse never offered an opinion on
K.R.'s truthfulness. She testified that in her experience examining approximately 1,500 child
abuse victims, only five to ten of the victims showed physical evidence of anal penetration. She
explained the number of victims showing signs of abuse is so low because anal injuries heal
quickly and children tend to delay their disclosure of abuse. This testimony did not usurp the
jury's role in assessing the victim's credibility but provided the jury information that would assist
them in making an educated determination.
State of Ohio v. Cowen, 2012 Ohio 3682
While an examining physician may provide his opinion as to whether he observed evidence of
sexual abuse, he may not vouch for the veracity of the child victim. A medical diagnosis of
“child sexual abuse” is not opinion evidence that the child was telling the truth. "That this
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diagnosis was based, in part, on statements made to him by the victim does not require the
conclusion that the doctor is vouching for the veracity of the victim's testimony."
State of Ohio v. Petkovic, 2012 Ohio 4050
Defendant argued that the court erred when it limited the scope of the defense requested
independent evaluation of N.P.'s mental capacity. When the mental condition of the victimpotential witness is a contested, essential element of the crime charged, the defense may move
the court that the state be barred from utilizing evidence of such mental condition obtained in a
clinical interview of the witness prior to trial unless the witness voluntarily agrees to a courtappointed, independent examination, with the results being made available to both sides.
The State expert concluded the following:
"* * * I found that she's impaired in her ability to make those types of decisions, to fully
advocate and protect her own health and safety due to her cognitive limitations." Additionally,
Dr. Connell recommended that N.P. having a legal guardian "should be looked at and pursued
because I think that she has deficits in * * * her ability to protect her own health and safety, both
in financial matters, in medical decision making and informed decision making * * *."
Asked by the court if N.P.'s ability to resist or consent in general was substantially impaired
because of her mental condition, Dr. Connell replied, "My opinion would be yes." Dr. Connell
clarified that she did not evaluate N.P. specifically "regarding how able she is to consent to
sexual conduct or contact," nor did she evaluate N.P. about anything specific to her ability to
consent with defendant.
Turning to defendant's expert forensic and neuropsychologist, John Fabian, the court set various
"ground rules" at a hearing to determine the scope of Dr. Fabian's independent evaluation of N.P.
The State objected to defendant's request that Dr. Fabian be allowed to probe into N.P.'s mental
thought process as to when or if she consented to having sex with defendant. The State also
objected to testimony about N.P.'s prior sexual activity. The court upheld the State's objections
and limited Dr. Fabian's evaluation accordingly.
Actual consent is distinct from the ability to legally consent. In other words, whether N.P.
consented is irrelevant if she was not capable of consenting under the offenses with which
defendant was charged. Therefore, the trial courts restrictions were appropriate.
State of Ohio v. Jones, 2012 Ohio 5737
Defendant argued that, the evidence was insufficient to establish substantial impairment. In this
case, the victim testified that by the time she left Cooper's apartment, she was so inebriated that
she could "barely move." She further testified that while she was inside Defendant’s apartment,
she "passed out" more than once. Ames testified that, upon leaving Cooper's apartment, the
victim required help to put on her shoes and coat and needed Defendant’s assistance to walk.
Based upon their testimony, sufficient evidence was presented to prove both that the victim was
“substantially impaired" and that Defendant was aware of her condition.
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NINTH APPELLATE DISTRICT
State of Ohio v. Vitt, 2012 Ohio 4438
In this case, Defendant was convicted of multiple counts of rape for multiple differentiated acts
of forcible penetration. Multiple rape offenses do not merge when a defendant commits them
between "intervening acts." Merger does not apply because the defendant has a separate specific
intent to commit each rape, and the victim suffers a separate risk of harm from each rape. An
intervening act separated each of appellant's multiple rapes because he alternated between
different types of penetration. Each rape was, therefore, a separate offense being committed with
a separate specific intent and causing separate harm to the victim.
Defendant further argued the trial court didn’t permit him to elicit testimony concerning his
defense of consent. Defendant asked M.R. whether she told police she took her own pants off,
and she responded that she didn't remember. Trial counsel wanted to then ask the officer on the
stand whether M.R. did in fact tell him she took her pants off. The proffered testimony of the
investigator would have violated Evid. R. 608 as extrinsic evidence of a specific instance of a
witness' conduct: appellant had inquired of M.R. on cross-examination about the disputed
statement, but was then "stuck" with her answer and could not offer extrinsic evidence through
another witness.
State of Ohio v. Abraham, 2012 Ohio 4248
Defendant argued that the court should have severed his trial on the rape and gross sexual
imposition counts from the counts for the illegal use of a minor in a nudity-oriented material or
performance and pandering sexually oriented matter involving a minor. Two of the charges
against Defendant arose as a result of the sexual abuse allegations brought to light by his
granddaughter, and the remaining two charges arose from pornographic images taken from his
computer. Joinder was permissible as the evidence was simple and direct and may have been
admissive Evid. R. 404 (B).
Defendant further argued testimony from the school counselor was was irrelevant and
impermissibly prejudicial. The counselor testified that after viewing a video she then discusses
the story with the kids to talk about whether the girl in the video had been sexually abused and
whether she did the right thing by telling her mother. She testified that over time she had
presented that particular sexual abuse program to approximately 960 students. She then stated
that only one child other than I.D. had ever reported abuse to her after viewing the material.
Part of the defense's theory in this case was that I.D. fabricated the allegations of abuse against
Defendant either because she blamed him for her father's absence or to gain some degree of
attention for herself. Because the evidence had some tendency to make I.D. appear more
credible, we cannot conclude that the trial court abused its discretion by allowing it.
State of Ohio v. Morris, Jr., 2012 Ohio 6151
Defendant argued that the trial court should have excluded all references to an incident involving
Sarah, S.K.'s adult sister. Second, he has argued that the trial court should have excluded S.K.'s
mother's testimony regarding him sometimes ejaculating into towels or t-shirts during
intercourse. Finally, he has argued that the trial court should have excluded S.K.'s mother's
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testimony regarding his penchant for kicking the dog if the mother refused to have sex with him.
EVIDENCE CONCERNING ADULT SISTER
Sarah is seven years older than S.K. In spring 2005, Sarah was an adult and had been married the
previous Christmas, but was living in the same house with her grandmother, younger sister,
mother, and Mr. Morris. Sarah testified that she walked into her mother's bedroom one evening
and found Mr. Morris sitting on the corner of the bed. She said that he "grabbed [her] waist and
pulled [her] toward him and said, 'You don't know what I would do to you but your mother
would get mad.'" Sarah testified that she perceived the comment to be sexual in nature, but that
she "just laughed it off," told him he was drunk, and pushed him away. She returned to her own
bedroom and that was the end of the interaction.
Relying on State v. Curry the Appellate Court concluded that the comment that Sarah described
did not form part of the immediate background of the crimes charged and is not part of a single
criminal transaction involving the alleged rapes of her sister. It was not part of the plan that
culminated in the alleged rapes of S.K. The Court further distinguished this case from State v
Williams and stated that one cannot reasonably conclude that the evidence offered by Sarah has
any tendency to prove that Mr. Morris engaged in a similar plan or method of conduct with the
two sisters or that his alleged conduct with Sarah has some tendency to prove his motive or
intent on certain occasions to derive sexual gratification from a child. Thus, Sarah's testimony
could not reasonably be deemed admissible under Evidence Rule 404(B) to prove motive, intent,
plan, or identity.
KICKING THE DOG
The Court concluded that the evidence that Mr. Morris would kick the dog out of sexual
frustration was admitted solely to prove that Mr. Morris would aggressively act out if his
voracious sexual appetite was not satisfied on a daily basis, leading to the obvious inference that
he acted in conformity with that character trait by raping his stepdaughter on the two occasions
noted in the indictment. Thus, the trial court improperly exercised its discretion by admitting the
evidence that Mr. Morris kicked the dog out of sexual frustration.
USING TOWELS DURING SEXUAL INTERCOURSE
S.K. testified that, every time Mr. Morris ejaculated while molesting her, he would quickly cover
his penis with a towel. Mr. Morris has argued that S.K.'s mother, who was married to him at the
time of the alleged incidents, should not have been permitted to testify that "[w]hen [Mr. Morris]
and I had sex, he would sometimes [ejaculate] in a towel or a T-shirt or whatever was around."
She went on to say that she did not understand why he would do that because he knew she could
not get pregnant.
The Appellate Court concluded that the testimony does not run afoul of Evidence Rule 404
because it is not "evidence of a person's character or a trait of character." The testimony was
relevant because S.K. had previously said that Mr. Morris had always ejaculated into a towel
when molesting her. It could hurt Mr. Morris's case because it provided some corroboration of
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S.K.'s allegation that she had been involved in a sexually intimate situation with Mr. Morris. As
relevant evidence, it was admissible.
TWELFTH APPELLATE DISTRICT
State of Ohio v. Bokeno, 2012 Ohio 4218
Defendant argued that the trial court erred by permitting the state to amend the dates in the
indictment to correspond with the trial testimony of the victims, from 2003 to a period between
August 2004 and August 2005. As a matter of law, no change was made to the name or identity
of the crime charged and as such, the trial court did not abuse its discretion in granting the state's
motion to amend the indictment.
In addition, Defendant did not present any sort of defense, including an alibi defense, which
would have been prejudiced by the amendment to the indictment. Therefore, even had the
amendment to the indictment permitted Defendant to be tried for offenses not reviewed by the
grand jury, Defendant was not prejudiced by the amendment.
State of Ohio v. Gray, 2012 Ohio 4769
Defendant argued that the prosecutor engaged in prejudicial misconduct during closing
arguments when he made statements that appellant is not seven or eight years old, like A.H., but
"50 some odd years old." The prosecutor further stated that Defendant made statements in his
interrogation while aware "of the importance of what" he told the detectives. The prosecutor also
continually referred to A.H. as "that little seven year old," and that "little pipsqueak of an eight
year old." Finally, the prosecutor stated that if the jury listened closely to the statements
Defendant made after his interrogation, they would hear him say "why did you do those things to
her" while Defendant argues that the tape reveals him saying "I didn't do those things to her."
In reviewing the evidence presented at trial, including the statements of A.H. to Richey, as well
as Defendant’s statements during his interrogation, we do not believe that, but for the
prosecutor's statements, Defendant would have been acquitted. The prosecutor never mentioned
Defendant’s cognitive ability but, rather, pointed out that Defendant is an adult who was aware
of the situation he was in while being interrogated. Without the prosecutor's statements, the jury
would still have been able to determine, from listening to the statements appellant made to
Monroe and Whitlock, that Defendant was aware of the situation. In addition, A.H. testified at
trial and, therefore, the jury could see whether her stature aligned with the prosecutor's
interpretation of her as "little," "tiny," and a "pipsqueak." Finally, the prosecutor's quoting of
Defendant’s statement is the prosecutor's interpretation of the evidence. The statement was made
quietly by Defendant after Monroe and Whitlock had left the room. Indeed, during defense
counsel's closing, he gave his interpretation of what Defendant said after the detectives left the
interview room. Furthermore, the jury was able to listen to the recording and make their own
determinations as to what Defendant stated.
Therefore, the prosecutor's remarks did not constitute prejudicial misconduct and did not
constitute plain error.
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State of Ohio v. Rose, 2012 Ohio 5607
Defendant challenged the trial court's ruling denying his motion to sever. Defendant argued the
cumulative effect of joining the offenses at trial allowed the evidence of the rape and kidnapping
involving T.N. to prejudice the jury regarding the assault and abduction of N.V.
In the present case, joinder was permissible as the evidence was simple and direct as there were
two adults testifying about two separate incidents that occurred within a reasonable short period
of time with some similarities. Furthermore, the trial court provided a limiting instruction to the
jury that required it to consider the charges against Defendant as separate matters.
Defendant also challenged the admission of a portion of Exhibit 14, the sexual assault report
completed by Charlene Wooten, the SANE nurse examiner. The report contained a transcription
of statements T.N. made during Wooten's examination of her. Defendant argued that the
statements T.N. made during the examination were hearsay and were not made for the purposes
of medical diagnosis or treatment, and therefore did not fall within the hearsay exception under
Evid.R. 803(4).
During trial, the SANE explained that the purpose of a sexual assault nurse examiner is to collect
specimens that is [sic] requested by the State attorney general's office kit along with the BCI,
which is the crime lab up in London. They form a kit, and we collect specimens for that kit along
with any type of history and everything from any patient who comes in saying that she was
assaulted. * * * We are there only to collect the specimens, and to listen to her story and chart
everything down verbatim as she tells us. The SANE further explained that she also asks
whether there was any penile penetration in the vagina or if there was any other object inserted in
the vagina or rectal area, and whether or not the victim had scratched or hit the perpetrator as this
would "be passed onto the police to help identify" the perpetrator.
Based on her testimony, it appears that her role was merely for investigative and evidence
gathering purposes, and therefore the report would not fall within the hearsay exception under
Evid.R. 803(4). However, the error in admitting the narrative of T.N. contained in Exhibit 14
was harmless as it was merely cumulative to the admissible testimony of T.N.
Finally, Defendant argued that the trial court erred in convicting and sentencing him for both
kidnapping and rape as these offenses are allied offenses of similar import and should have been
merged at sentencing.
The Ohio Supreme Court adopted the following guidelines: Where the restraint or movement of
the victim is merely incidental to a separate underlying crime, there exists no separate animus
sufficient to sustain separate convictions; however, where the restraint is prolonged, the
confinement is secretive, or the movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to each offense sufficient to
support separate convictions. Where the asportation or restraint of the victim subjects the victim
to a substantial increase in risk of harm separate and apart from that involved in the underlying
crime, there exists a separate animus as to each offense sufficient to support separate convictions.
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In applying these guidelines Rose's actions in grabbing T.N. by the hair and dragging her 75
yards to the car lot demonstrate a separate animus for both crimes. The movement of T. N. was
substantial. Not only did Rose move T.N 75 yards and through a gap between two fences, but he
also had to drag her across another building's parking lot that separated the area between the bar
and the car lot to reach the car where the rape ultimately occurred. Moreover, the confinement
was secretive as Rose removed T. N. from the entrance of a crowded bar to an "enclosed" car lot
containing broken down cars. Accordingly, the kidnapping and rape were not allied offenses of
similar import and the trial court properly sentenced Rose for kidnapping and rape under
Johnson and R.C. 2941.25.
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