State v. Howard

[Cite as State v. Howard, 2011-Ohio-3524.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-10-50

v.

JODY HOWARD, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court
Trial Court No. 09-CR-345

Judgment Affirmed

Date of Decision: July 18, 2011

APPEARANCES:

Kevin P. Collins for Appellant

Brent Yager and Denise M. Martin for Appellee
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PRESTON, J.

{¶1} Defendant-appellant, Jody Dean Howard (hereinafter “Jody” or

“Howard”), appeals the Marion County Court of Common Pleas’ judgment of

conviction. For the reasons that follow, we affirm.

{¶2} This case stems from Howard’s sexual victimization of his sister-in-

law, S.S., who was less than 13 years of age at the time of the incidents, his

creation of obscene pornographic material involving S.S., his possession of child

pornography, and his complicity in destroying the obscene pornographic material

involving S.S. following his indictment for the same.

{¶3} On July 23, 2009, the Marion County Grand Jury indicted Howard on

50 Counts, including: Counts 1-40 of rape, violations of R.C. 2907.02(A)(1)(b)

and first degree felonies; and Counts 42-50 of gross sexual imposition, violations

of R.C. 2907.05(A)(4) and third degree felonies. (Doc. No. 1). On July 27, 2009,

Howard was arraigned and entered pleas of not guilty. (Doc. No. 4).

{¶4} On February 18, 2010, the Marion County Grand Jury further indicted

Howard on 53 Counts, including: Count 51 of pandering obscenity involving a

minor in violation of R.C. 2907.321(A)(1), a second degree felony; Counts 52-76

of pandering obscenity involving a minor, violations of R.C. 2907.321(A)(5) and

fourth degree felonies; Counts 77-102 of illegal use of a minor in nudity-oriented

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material or performance, violations of R.C. 2907.323(A)(1) and second degree

felonies; and Count 103 of complicity to tampering with evidence in violation of

R.C. 2923.03(A)(4), 2921.12(A)(1), a third degree felony. (Doc. No. 58).

{¶5} On February 19, 2010, Howard filed a motion to sever Counts 1-50

from Counts 51-103 pursuant to Crim.R. 12(C)(5), Crim.R. 14, and Crim.R. 8.

(Doc. No. 60). On February 22, 2010, Howard was arraigned on the supplemental

indictment and entered pleas of not guilty. (Doc. No. 62).

{¶6} On March 5, 2010, the State filed a motion to dismiss Counts 4-40 and

Counts 44-50 of the original indictment and also filed its response to the Howard’s

motion to sever. (Doc. Nos. 68-69). On March 8, 2010, the trial court dismissed

Counts 4-40 and Counts 44-50 without prejudice. (Doc. No. 70). On May 19,

2010, the trial court denied Howard’s motion to sever. (Doc. No. 89).

{¶7} A jury trial was held from June 28th to July 6, 2010. (Doc. Nos. 140,

146-48). Thereafter, the jury found Howard guilty on Counts 1-3, 41-43, and 51-

103. (Doc. Nos. 148-208).

{¶8} On August 19, 2010, the trial court sentenced Howard to: 9 years

imprisonment on each of Counts 1-3 of rape; 2 years imprisonment on each of

Counts 41-43 of gross sexual imposition; 4 years imprisonment on Count 51 of

pandering obscenity involving a minor; 12 months on each of Counts 52-76 of

pandering obscenity involving a minor; 12 months on each of Counts 78-102 of

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illegal use of a minor in a nudity-oriented material or performance; and 1 year on

Count 103 of complicity to tampering with evidence. (Doc. No. 219). No sentence

was imposed on Count 77 since it was an allied offense. (Id.). The trial court

further ordered that: the terms imposed in Counts 1-3 should be served

consecutively to each other; the terms imposed in Counts 41-43 should be served

concurrently to each other and consecutively to Counts 1-3; the term imposed on

Count 51 should be served consecutively to Counts 1-3; the terms imposed on

Counts 52-76 should be served concurrently to each other and consecutively to

Counts 1-3; the terms imposed on Counts 78-102 should be served concurrently to

each other and consecutively to Counts 1-3; and Count 103 should be served

consecutively to Counts 1-3, for an aggregate sentence of 36 years. (Id.).

{¶9} On September 20, 2010, Howard filed a notice of appeal. (Doc. No.

221). Howard now appeals raising twelve assignments of error for our review.

We elect to address Howard’s first assignment of error out of the order presented

in his brief and to combine his assignments of error where appropriate.

ASSIGNMENT OF ERROR NO. II

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTION FOR
PANDERING OBSCENITY INVOLVING A MINOR IN
VIOLATION OF R.C. 2907.321(A)(1) [COUNT 51].

ASSIGNMENT OF ERROR NO. III

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THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTION FOR
PANDERING OBSCENITY INVOLVING A MINOR IN
VIOLATION OF R.C. 2907.321(A)(5) [COUNTS 52-76].

ASSIGNMENT OF ERROR NO. IV

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTION FOR
ILLEGAL USE OF [A] MINOR IN A NUDITY-ORIENTED
MATERIAL OR PERFORMANCE IN VIOLATION OF R.C.
2907.323(A)(1) [COUNT 77].

ASSIGNMENT OF ERROR NO. V

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTION FOR
ILLEGAL USE OF [A] MINOR IN A NUDITY-ORIENTED
MATERIAL OR PERFORMANCE IN VIOLATION OF R.C.
2907.323(A)(3) [COUNTS 78-102].

ASSIGNMENT OF ERROR NO. VI

DEFENDANT-APPELLANT’S CONVICTION FOR RAPE IS
CONTRARY TO THE MANIFEST WEIGHT OF EVIDENCE.
[COUNTS 1-3].

ASSIGNMENT OF ERROR NO. VII

DEFENDANT-APPELLANT’S CONVICTION FOR GROSS
SEXUAL IMPOSITION IS CONTRARY TO THE MANIFEST
WEIGHT OF EVIDENCE. [COUNTS 41, 42, AND 43].

ASSIGNMENT OF ERROR NO. VIII

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTION FOR
COMPLICITY TO TAMPERING WITH EVIDENCE.
[COUNT 103].

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{¶10} In assignments of error two through five and eight, Howard argues

that the State presented insufficient evidence to support his convictions for

pandering obscenity involving a minor, illegal use of a minor in a nudity oriented

material or performance, and complicity to tampering with evidence. In his sixth

and seventh assignments of error, Howard argues that his convictions for rape and

gross sexual imposition were against the manifest weight of the evidence.

{¶11} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks (1981),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, superseded by

state constitutional amendment on other grounds in State v. Smith (1997), 80 Ohio

St.3d 89, 684 N.E.2d 668. Accordingly, “[t]he relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Id.

{¶12} On the other hand, a reviewing court must examine the entire record,

“‘[weigh] the evidence and all reasonable inferences, consider the credibility of

witnesses and [determine] whether in resolving conflicts in the evidence, the [trier

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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’” to determine whether a

conviction is against the manifest weight of the evidence. State v. Thompkins

(1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin (1983),

20 Ohio App.3d 172, 175, 485 N.E.2d 717. A reviewing court must, however,

allow the trier of fact appropriate discretion on matters relating to the weight of the

evidence and the credibility of the witnesses. State v. DeHass (1967), 10 Ohio

St.2d 230, 231, 227 N.E.2d 212.

{¶13} Marion County Sheriff’s Deputy David Barron testified that he was

working as a dispatcher answering 9-1-1 calls on July 7, 2009 from 11:00 p.m. to

7:00 a.m. (June 28-30 and July 1-2, 2010 Tr. at 301-02). He testified that, around

11:13 p.m., he received a 9-1-1 call from Bret S., the victim’s father, reporting a

sexual problem between an adult and a juvenile at 3927 Smeltzer Road in Marion,

Ohio. (Id. at 302-03). Deputy Barron identified State’s exhibit two as a true and

accurate copy of the 9-1-1 phone conversation. (Id. at 303-04).

{¶14} Detective Thomas Miller of the Marion County Sheriff’s Office

testified that, on July 7, 2009, he was dispatched to 3927 Smeltzer Road for a

family altercation over a sex offense. (Id. at 304-05). When Detective Miller

arrived on the scene, Bret pulled in behind his cruiser, exited his vehicle, and

stated that his son-in-law, Howard, was inside the residence with a gun,

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threatening to commit suicide. (Id. at 305-06). When Detective Miller and Bret

went into the residence, they found Howard sitting in a chair and his wife, Nikki

Howard (“Nikki”), sitting on Howard’s lap facing him and holding his arms down

to the chair. (Id. at 306). Nikki was upset, crying, and yelling at Howard to calm

down, relax, and that killing himself was not the answer. (Id.). Detective Miller

testified that Howard had a blank expression on his face, and that he could tell

something was wrong, though Howard was not saying anything. (Id.). Nikki told

Detective Miller that she had hid the weapon from Howard, but, as Detective

Miller approached Howard to place him in handcuffs for his safety, Howard stated

he was going to try to take Detective Miller’s service weapon so he could shoot

himself if Detective Miller came any closer to him. (Id. at 307-08). At that point,

Detective Miller backed up, drew his Taser, and called for back-up. (Id. at 308). A

few minutes later, Howard told Nikki to let go of his arms, Howard placed his

hands out, looked at Detective Miller, and told him to take him to jail before he

changed his mind. (Id. at 308-09). Detective Miller secured Howard and placed

him in his cruiser under supervision, and then he returned to the residence to

secure the weapon that Nikki had hid from Howard. (Id. at 310). At that point,

Deputy Dutton arrived on the scene and was asked to supervise Howard, while he

and Major Corwin spoke with Bret and Nikki about why Howard wanted to

commit suicide. (Id. at 310-11).

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{¶15} Detective Miller testified that, although hesitant at first, Nikki and

Bret stated that they had some suspicion that something was going on between

Howard and Nikki’s 12-year-old sister, S.S. (Id. at 312). Nikki and Bret told

Detective Miller that S.S. would hang around Howard too much, and S.S. was not

playing enough with the other kids. (Id.). They further stated that S.S. liked to

play X-box and get ice cream with Howard. (Id.). Nikki stated that her mother,

Jane, had borrowed her vehicle earlier that day, and they learned that Jane was at a

bar consuming alcohol. (Id. at 312-14). According to Nikki, when they went to

get Jane, Jane made a comment about something going on between Howard and

S.S. (Id. at 312-14). As a result of that comment, Nikki confronted S.S. when they

were on their way home from the bar. (Id. at 315). Detective Miller testified that

Nikki, however, refused to provide a recorded statement. (Id.). Detective Miller

testified that, during his investigation, he discovered Howard was born in February

1977. (Id. at 318). He further testified that he spoke with S.S., though she was

reluctant to talk to him, so he suggested to Major Corwin that S.S. speak to a

female deputy. (Id. at 319).

{¶16} On cross-examination, Detective Miller testified that Nikki told him

that the “something” going on between Howard and S.S. was that they were

flirtatious with one another. (Id. at 322). He testified that a rape kit was done on

S.S. that night at the hospital. (Id. at 326). Detective Miller further testified that

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S.S. stated that she made statements to Brianna Burge, her best friend from school,

but Burge was never questioned. (Id. at 326-27).

{¶17} Marion County Sheriff’s Deputy Jason Dutton testified that he was

dispatched to 3927 Smeltzer Road, Marion County, Ohio on July 7, 2009 for a

possible attempted suicide. (Id. at 329). Deputy Dutton testified that he was

responsible for supervising Howard while Howard was restrained in the back of

the police cruiser, and that he witnessed Howard attempt to strangle himself while

in the back of the cruiser. (Id. at 329-31). After that occurred, Deputy Dutton

handcuffed Howard’s hands behind his back. (Id. at 339). Deputy Dutton further

testified that he interviewed Howard at the multi-county correctional facility

regarding the alleged sexual offense that occurred between him and S.S. (Id. at

331-32). Deputy Dutton identified State’s exhibit three as a true and accurate

copy of that interview. (Id. at 332). Deputy Dutton testified that Howard

repeatedly denied that anything happened between him and S.S., and that he

ultimately charged Howard with persistent disorderly conduct and menacing. (Id.

at 341). Deputy Dutton testified that Howard avoided eye contact during the

interview, though he denied doing anything wrong. (Id. at 342-33).

{¶18} Amber Davis, a Verizon Wireless employee, identified State’s

exhibit four as the cell phone records of phone numbers 740-360-7009, belonging

to Bret S., and 740-262-3719, belonging to Howard. (Id. at 344-45). Davis

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testified that exhibit four contained the contents of text messages between the two

phone numbers, though she testified on cross-exam that the records do not indicate

who actually sent the text messages. (Id. at 352, 355).

{¶19} Jane S. testified that she has four daughters: Nikki Howard (29),

Christi S. (21), S.S. (13), and Bretta S. (11). (Id. at 361-62). Jane testified that

S.S. was born in September 1996. (Id.). Jane testified that she lived with Nikki

and Jody Howard at 3927 Smeltzer Road from April to July 2009, and that, around

10:30 a.m. on July 6, 2009, she woke up to find S.S. missing from the bed next to

her. (Id. at 364-65). Jane testified that she went looking for S.S. in the house, but

could not find her, and when she went by Howard’s bedroom, she heard the bed

“squeaking and stuff * * * just like somebody was in there having sex.” (Id. at

366). Jane testified that she then went back downstairs to try to find S.S., but still

could not find her, so she went back upstairs to continue her search for S.S. (Id. at

365). When she came back upstairs, she saw Howard leave his bedroom in his

underwear with his hands cupped over his privates heading towards the guest

bathroom. (Id.). Jane testified that she yelled for S.S., and S.S. yelled back,

“mom, I’m back here in the closet,” meaning Ariel’s (Jody and Nikki Howard’s

daughter’s) closet. (Id). Jane testified that she had already looked in Ariel’s closet

when she was upstairs the first time, and S.S. was not there, so she took S.S.

outside of the house and told S.S. that she was not in Ariel’s closet. (Id. at 366).

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Jane testified that she asked S.S. if she was in Howard’s room, and S.S. said “yes.”

(Id.). Jane testified that she “just left it at that, [a]nd she knew what was going on

* * * [b]ecause of the way [S.S.] and [Howard were] so chummy together and

everything.” (Id.). Jane further testified that she discovered blood in S.S.’s

underwear once, even though S.S. had not yet begun her menstrual cycle. (Id. at

366-67). Jane testified that she then became suspicious that something might be

happening at Nikki and Jody’s house, so she moved there to keep her eyes on

things. (Id. at 367).

{¶20} Jane testified that her husband, Bret’s, cell phone number was 360-

7009. (Id.). She further testified that she does not even know how to turn on a

computer. (Id.) Jane testified that Howard has taken the children, including S.S.,

swimming at the YMCA. (Id. at 368). Jane testified that she borrowed Nikki’s

van to attend a friend’s funeral, and, afterwards, she went to The Frosty Mug bar.

(Id. at 368). Jane testified that Bret and Nikki showed up to get the van, and that

she yelled “she’d better clean up her own back door between her husband and my

baby, [S.S.],” as Nikki was driving away. (Id. at 369).

{¶21} On cross-examination, Jane testified that Bret and she are in the

middle of a divorce where custody of S.S. is in dispute. (Id. at 370, 393-94). She

testified that Bret and she own property at 658 Buena Drive, but that she moved in

with Nikki and Jody Howard “to protect [her] daughter.” (Id. at 370-72). Jane

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testified that she never reported her suspicions of Howard to children services, the

police, the prosecutor’s office, or the sheriff’s department, even though she was

positive that S.S. and Howard had sex on July 6th. (Id. at 372). When asked why

she did not take S.S. to the hospital at that time, Jane testified that Bret would not

let her, and Bret, in fact, went motorcycle riding with Howard that same day. (Id.

at 373). Jane testified that, when she confronted S.S. about finding the blood in

her panties, S.S. stated it was from her rectum, though Jane never took S.S. to a

physician. (Id. at 373-74). Jane admitted that she allowed S.S. to live with

Howard for three to four months while she was supervising. (Id. at 374). Jane

admitted that she was drunk when she yelled the allegations against Howard when

Nikki and Bret came to the bar to retrieve the van. (Id. at 375). Jane testified that

S.S. wears underwear regardless of S.S.’s statements to the contrary. (Id. at 396-

97). Jane also testified that children services had initiated a case for S.S., though

she denied that her testimony was her effort to protect her interests in the custody

dispute with her husband or children services. (Id. at 394-95). Jane testified that

she did not actually find S.S. in the bedroom having sex with Howard, and Jane

denied ever telling S.S. that she would not tell Nikki about them having sex if S.S.

promised to stop. (Id. at 397-98). Jane testified that she was never on the

computer, and she has no knowledge of an online order at Sears for shoes and a

hooded sweatshirt that was placed on a credit account she shared with Bret. (Id. at

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400). Jane testified that she never saw Howard fondle or touch S.S. in a sexual

manner, though she saw them play games together on the T.V. (Id. at 403-05). On

re-direct, Jane testified that she told Bret several times that she thought something

was going on between Howard and S.S., and that S.S. stated that she was in

Howard’s room. (Id. at 408-09).

{¶22} Abbigail Dindo, a paralegal at the Marion County Prosecutor’s

Office, testified that she monitored Howard’s jailhouse phone conversations. (Id.

at 411-13). Dindo identified: State’s exhibit five as a CD of thirteen phone calls

she downloaded from the jail call system; State’s exhibit six as a copy of her

narrative report; and State’s exhibit seven as a printout of the calls that were

downloaded. (Id. at 413-17).

{¶23} Nikki Howard was called but refused to testify at trial. (Id. at 420,

426).

{¶24} Bret testified that he has four daughters: Nikki (29), Christi (21), S.S.

(13), and Bretta (11), and that S.S. was born in September 1996. (Id. at 428-30).

Bret testified that Howard married his oldest daughter, Nikki, and that a year ago

he was living with Nikki, Howard, and their children on Smeltzer Road. (Id.).

Bret testified that he was at Nikki and Jody’s house on July 6, 2009, and he

recalled Jane mentioning that S.S. was in Howard’s bedroom, but Jane never

indicated she saw or heard anything or that she thought something was going on

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between Howard and S.S. (Id. at 435). Bret further testified that Jane never told

him that S.S. admitted she was in Howard’s bedroom. (Id. at 436). Bret testified

that, on July 7, 2009, Jane took Nikki’s van to attend a funeral, and that, between

10 to 11 p.m. that night, Nikki, Bretta, S.S., and he went to The Frosty Mug to get

the van back from Jane. (Id. at 436-37, 439). Bret testified that he went inside the

bar to get the van keys from Jane, and Jane came out of the bar and began arguing

with Nikki. (Id. at 440). Bret testified that Jane made an accusation that Howard

was molesting S.S., and Nikki stated that she was “going to go home and get to the

bottom of this.” (Id. at 441-42). Bret testified that he asked Christi to pick up S.S.

from the house, but he did not go back to the house, but instead, met Christi at

Pleasant School, which is one or two miles from the house on Smeltzer Road. (Id.

at 443-45). At some point thereafter, Nikki told him that Howard wanted to kill

himself, and Nikki asked him to contact Wanda, Jody’s mother. (Id. at 446-47).

Bret testified that, at some point, he received a text from Nikki indicating that

Howard had sex with S.S. (Id. at 447-48). Bret testified that he then called 9-1-1,

and he identified State’s exhibit two as his 9-1-1 phone call. (Id. at 450-51).

{¶25} Bret testified that, when the deputy sheriff arrived, he pulled in

behind him and went into the house with him where he saw Nikki and Jody sitting

in the chair. (Id. at 452). Bret testified that Howard was seated normally, but

Nikki was sitting on Howard’s lap facing him with her hands on Howard’s wrists.

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(Id. at 453). Bret testified that Howard told the deputy to stay away from him,

though he could not recall whether Howard threatened to take the deputy’s service

weapon. (Id. at 454). Before back-up arrived, Howard stated “just go ahead and

take me.” (Id. at 455). Bret testified that he talked with Deputy Miller at the

hospital about the suspicions that Jane had about Howard and S.S. (Id. at 458).

Bret testified that he never saw anything occur between Howard and S.S., though

he did tell S.S. to keep her hands to herself when she was around Howard. (Id. at

459). Bret identified State’s exhibit nine as the recorded conversation Christi and

he had with Deputy Miller on July 7, 2009. (Id. at 461). Bret testified that he

recalled hearing a phone conversation between Howard and Nikki that occurred

shortly after Howard’s arrest where Howard apologized for what was happening,

though Bret could not tell what Howard apologized for exactly. (Id. at 462). Bret

believed he recalled that, during this same conversation, Howard stated that his

career was over and he just wanted to die. (Id. at 462-63). Bret identified: State’s

exhibit ten as a teddy bear and State’s exhibit eleven as a jewelry box, both items

that S.S. stated Howard gave to her. (Id. at 466-67). Bret testified that Howard has

taken S.S. and the other children swimming at the YMCA. (Id. at 468).

{¶26} On cross-examination, Bret testified that he had a pending divorce

with Jane where the custody of their minor children is in dispute, and children

services had a pending case involving S.S. (Id. at 469-70). Bret testified that Jane

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is not very savvy with electronics, but he never ordered anything online from

Sears. (Id. at 473-74). Bret testified that he never saw Howard inappropriately

touch S.S., though he did testify that S.S. would hit Howard as “funny games,”

stating things like “you goober” or “you Barney.” (Id. at 474-75). Regarding the

July 6th incident, Bret testified that he was sleeping in bed at the time, and Jane

never mentioned that she saw S.S. have sex with Howard. (Id. at 475-76). Bret

testified that he asked Jane where the family’s dog was in the house, because he

thought Jane might have heard the dog jumping on the bed. (Id. at 476-77). Bret

testified that Jane was at the house that night because she was going to babysit the

children the next day, not because she was there to protect the children. (Id. at

478). Bret testified that he asked Christi to take S.S. to the hospital to prove that

nothing was going on between them, because he did not believe Jane because she

only made these allegations against Howard when she was drunk. (Id. at 481).

Bret testified that Nikki and Jody bought all the kids Valentine’s gifts. (Id. at 483-

84).

{¶27} Bret testified that, at some point, he talked to an attorney, John

Firstenberger, because S.S. changed her story. (Id. at 485-89). Firstenberger

called another attorney, Matthews, who eventually shared this information with

Prosecutor Yager. (Id.). Bret testified that Prosecutor Yager called him, and he

told Prosecutor Yager that S.S. told him nothing ever happened between Howard

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and her. (Id. at 490). Bret testified that he never encouraged S.S. to change her

story, and Bret denied ever knowing that S.S. had sex with Howard. (Id. at 491,

494). Bret testified that he never told S.S. that he would not tell Nikki if she

would stop having sex with Howard. (Id. at 494-95). Bret testified that S.S. and

Howard played X-box together, and that S.S. would play with Howard while the

other children would not. (Id. at 499). Bret testified that, when Howard took S.S.

to school, Howard’s two other girls would go with them as well. (Id. at 498). Bret

testified that he would have beat up or shot Howard if he knew that Howard was

having sex with S.S. (Id. at 502). On re-direct, Bret testified that Howard also

gave S.S. a necklace. (Id. at 507).

{¶28} Major Aaron Corwin of the Marion County Sheriff’s Office testified

that he was dispatched to 3927 Smeltzer Road on July 7, 2009 after 11:00 p.m. for

a suicidal subject with a gun. (Id. at 515-26). Major Corwin testified that he has

known Howard for years since Howard was involved in corrections and law

enforcement. (Id. at 517). He testified that he spoke with Nikki and Bret and

learned of the allegation that Howard was having sex with S.S. (Id. at 518).

According to Major Corwin, Nikki stated that S.S. admitted that she had sex with

Howard, while Howard admitted something happened but would not be specific.

(Id.). Major Corwin testified that Nikki informed him that Howard became

enraged and suicidal and attempted to ram his head through a plate glass window

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or door after S.S. admitted she had sex with Howard. (Id. at 518-19). He further

testified that Bret and Nikki stated that Howard took S.S. for ice cream and to

school alone, and that Howard played X-box with S.S. but not the other children.

(Id. at 520). Major Corwin identified State’s exhibit twelve as the audio recording

of his interview with Howard. (Id. at 521). On cross-examination, Major Corwin

testified that Bret indicated that Howard took S.S. to school alone, although that

was not in his report. (Id. at 534).

{¶29} The victim, S.S., testified that she is thirteen years old and was born

in September 1996. (Id. at 538). She testified that she played X-box with Howard;

Howard gave her a motorcycle ride; Howard took her to school; and Howard took

her swimming at the YMCA. (Id. at 541-42). S.S. testified that Howard would

take the other children to school and the YMCA when they went. (Id.). S.S.

testified that she was not in Howard’s bedroom on July 6, 2009, but instead, was

in the kids’ bedroom. (Id. at 543-44). S.S. testified that, on July 7, 2009, Nikki,

her dad, and she went to The Frosty Mug at night, and her mother, Jane, made an

accusation that Howard and she had sex. (Id. at 545-46). S.S. testified that Nikki

asked her in the car whether she had sex with Howard, but she did not say

anything. (Id. at 547). S.S. testified that Nikki continued to question her at the

house, but she did not say anything. (Id. at 548). S.S. admitted that she said she

loved Howard as a boyfriend previously, but she was not telling the truth then.

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(Id.). S.S. denied that she was trying to help Howard while testifying, and she

testified that Howard started talking about killing himself after Nikki finished

talking to her at the house. (Id. at 549). S.S. testified that she did not know why

Howard wanted to kill himself. (Id. at 550). S.S. testified that she could not

remember telling Christi that she loved Howard or telling Christi that Howard and

she were going to live in Florida together when she turned eighteen. (Id.). S.S.

testified that she told Nurse Russell she had sex with Howard, and that she may

have told Russell that she could not stand to be apart from Howard. (Id. at 552-

53). S.S. testified that Russell did a physical exam. (Id. at 555). S.S. testified that

she told Deputy Miller that she had sex with Howard, but that statement was not

true. (Id. at 556-57). S.S. identified State’s exhibit thirteen as the audio recording

of her interview with Deputy Miller. (Id. at 558-59). S.S. testified that she talked

to Deputy McDonald, but the things she stated during the interview were false. (Id.

at 560-61). S.S. identified State’s exhibit fourteen as her recorded interview with

Deputy Amy McDonald. (Id. at 564, 566). S.S. further testified that she told

prosecutors that Howard: kissed her, touched her breasts, touched her private

parts, put his finger in her vagina, and put his penis into her mouth. (Id. at 569-

573). S.S. testified that she knew that Howard could get in trouble when she made

those statements. (Id. at 574). S.S. testified that she told prosecutors that Howard

would ejaculate on her stomach, on her face, or in her mouth, but that those

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Case No. 9-10-50

statements were also not true. (Id. at 580). S.S. testified that she told prosecutors

that she preferred to refer to sex as “making love.” (Id.). S.S. testified that she

recalled testifying at Grand Jury that Howard took her virginity. (Id. at 583). S.S.

testified that Nikki’s family gave her the Teddy Bear, though she acknowledged

that she had stated earlier it was from Howard. (Id. at 585). S.S. testified that the

jewelry box was a gift from Nikki’s family, though the notes in the jewelry box

stated “I will love you forever and always” and the back of the note said “Do not

cry. I’m not going anywhere.” (Id. at 586-87). S.S. testified that the third note in

the jewelry box stated, “[t]his shiny 5 cents was in my pocket for the first time I

told you that I love you.” (Id. at 588). S.S. identified State’s exhibit sixteen as a

broken CD that she obtained from Howard’s house, which contained songs

Howard had written. (Id. at 588-89). S.S. testified that Howard gave her the CD,

but denied that he wrote the songs for her. (Id. at 590).

{¶30} S.S. testified that she chatted with Howard on MySpace. (Id. at 591).

S.S. identified: State’s exhibit seventeen as a MySpace chat she had with Howard

on December 23, 2008; State’s exhibit eighteen as a MySpace chat she had with

Howard on February 1, 2009; and State’s exhibit nineteen as a MySpace chat she

had with Howard on February 7, 2009. (Id. at 591-95). The contents of these chats

were read into the record, without objection, with the prosecutor reading Howard’s

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Case No. 9-10-50

messages and S.S. reading her responses. (Id. at 591-600). The December 23-24,

2008 MySpace chat between S.S. and Howard was as follows:

[Howard]: miss me yet? lolo
[S.S.]: sure
[Howard]: wow that convencing
[S.S.]: thank you i was going to write u but my myspace would
not show nothing not even my home page i logged out and logged
back and it still would not work.
[Howard]: that makes me feel a tad bit better. U should miss ur
bro in law all da time. Whatcha doin? getting better at golf?
[S.S.]: no, dad took the T.V. THE PEOPLE DID NOT TAKE
MY MUSIC OFF MY MYSPACE
[Howard]: two goods…now u get to talk to me and good u still
have ur playlist for a few more mins hehe. Miss me yet?
[S.S.]: sure the kids want to say hi HI DAD I LOVE U
[Howard]: tell em i love em … and u need to admit it i flow thru
ur vains like fish in the sea!
[S.S.]: HA HA VERY FUNNY how is nikkie doing
[Howard]: close to popping a kid out…but right now im mackin
on her sister lol
[S.S.]: ok butt chin what does that mean
[Howard]: what part u not understand ? the mackin or the
poppin? mackin means flirting popping means like popcorn…
[S.S.]: k thank u butt chin
[Howard]: it’s all good wall model
[S.S.]: who sings the song Sorry, Candy shop, and Cyclone
[Howard]: flirt back and i will tell ya…
[S.S.]: nooooooooooooooooooooooooooooooooooooooo!
[Howard]: sorry i dont know then…
[S.S.]: if u do not tell me then i am getting off the myspace
[Howard]: ur nephue is born…good looking boy like his dad
[S.S.]: congratulations is he coming here tonight?
[Howard]: tomorrow at 10am so b ther if you wanna see the
pimp
[S.S.]: i saw the baby boy and looks nothing like u he looks to
cute
[Howard]: fu

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Case No. 9-10-50

[S.S]: u hurt my feelings butt chin
[Howard]: how does it feel? not good huh…yeah now what
[S.S.]: ok

(June 28-30 and July 1-2, 2010 Tr. at 591-93); (State’s Ex. 17). The February 7,

2009 MySpace chat between S.S. and Howard was as follows:

[S.S.]: hi wat r u doing
[Howard]: talking to you…i guess…u need to stop getting in
trouble…
[S.S.]: sorry thats how i roll.
[Howard]: STOP freakin rolling then…going a week with no
half pint sucks a lot
[Howard]: where you at?
[S.S.]: MY FRIEND KIERSTINS HOUSE I AM STAYING
THE NIGHT WITH HER
[Howard]: nice..so you can talk for a min. Ur dad gave the ok
for you to stay tomorrow with us i was told. Not sure whats up
with him but this BS needs to stop. Seems if you guys get in
trouble he knows you like coming here and doing stuff with us so
that’s the first thing they take away when your bad
[S.S.]: Christi is not inviting me to her baby shower y can u only
talk to me for a min
[Howard]: I took sleeping meds..but i will try to stay up as long
as i can. Not like I ever get to talk to you…brat
[S.S.]: well i am not a brat i did nit think u would be on myspace
i just got back from the zommers roller skating rink
[Howard]: U R A brat because you get into trouble and spoil the
good times. Your not missing much anyway cant start the bike
because ron needs to get a new battery for it. other than that i
been bored out of my mind.
[S.S.]: thats funny but not good the bike can not start up
[Howard]: i had it started but battery went completely dead and
wont turn over now. Bad cell in battery he said he would get a
new one and give me a new switch for the neons. NOT FUNNY
EITHER half pint~
[S.S.]: well i have to call my parents to pick me up because i
want to go home

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Case No. 9-10-50

[Howard]: dont wanna come here?
[S.S.]: idk r ur kidz awake
[Howard]: yes…nikkie is out and about too…but u dont have to
if you don’t want to.
[S.S.]: i have no ride their i have to ask my dad but i have no
way to get a hold of him
[Howard]: call nikkie to pick you up…ur dad was suppose to tell
you next time he seen you that if you wanted to spend the night
to call her.
[S.S.]: i know he did tell me
[Howard]: like i said though if you dont want to its all good. Not
going to twist ur arm~
[S.S.]: lol
[Howard]: I do miss seeing you though…but I guess i can go
another week slamming my head in the wall…
[S.S.]: i am coming over
[Howard]: YAY!!!..(does a flip) … err i mean….umm cool~
[S.S.]: me and nikkie is going to the store first
***
[Howard]: Work bites.
[S.S.]: y r u bored
[Howard]: yes very much so…at least i got to see ya for a few
mins
[S.S.]: i know
[Howard]: felt good
[S.S.]: oh i think i am spending the night
[Howard]: goody
***
[Howard]: erase all ur messages and change ur pass Shes
looking to far into things again * * * Ur sis asking me why i dont
tell her i miss her but tell u lmao! * * * u letting ur sister read ur
messages or something? When u check these could u please get
on myspace and delete all of mine. I would but i can only do one
at a time on my phone and seems to be no way to delete trash
bin. Thanks half pint love ya!

(June 28-30 and July 1-2, 2010 Tr. at 596-600); (State’s Ex. 19). S.S. testified

that she could not remember telling her sixth grade teacher that her boyfriend

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Case No. 9-10-50

gave her a teddy bear. (Id. at 601). S.S. testified that she lied about Howard to get

her dad to come back home. (Id. at 603).

{¶31} On cross-examination, S.S. testified that she told the judge she lied

and none of these things happened. (Id. at 608-09). S.S. testified that no one

instructed her how to testify at trial. (Id. at 610). She testified that Howard gave

her the CD of songs after she asked for it, and Howard did not just give it to her.

(Id. at 617-18). She testified that the notes in the jewelry box were from Nikki and

Jody. (Id. at 620). S.S. testified that Howard’s comment about seeing the “pimp”

during the MySpace chat was in reference to Howard’s son, not him. (Id.). S.S.

testified that she: received all A’s and two B’s in school; was never suspended

from school; served on the cheerleading team; and never saw a psychiatrist,

psychologist, therapist, or counselor. (Id. at 621-22). S.S. testified that she could

not remember the details of what actually happened because she had told so many

lies. (Id. at 624-25). S.S. testified that Howard took the other kids to the pool and

for ice cream when she went with him. (Id. at 626). S.S. testified that she told the

prosecutor that she lied and wanted the charges against Howard to be dropped. (Id.

at 628). She testified that Howard never texted her sexual things, and that all the

kids and Nikki play X-box with Howard, too. (Id. at 639, 641).

{¶32} Christi S. testified that S.S. is her sister whose nickname is “Bree,”

and Bret and Jane are her parents. (Id. at 651). Christi testified that, on July 7,

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Case No. 9-10-50

2009, she was driving around town trying to find her mom and eventually located

her at The Frosty Mug. (Id. at 652). Christi testified that her mom came out of the

bar “raging she knew what was going on, that she was gonna get Jody done, she

knew they were having sex.” (Id.). Christi testified she text messaged Nikki after

they left the bar and asked her if she wanted her to pick up the kids. (Id. at 653).

Christi testified that Nikki then sent her a text message indicating that S.S. had sex

with Howard. (Id. at 654). Christi testified that she then went to the house to pick

up S.S. and Bretta because her dad told her to take the kids to the emergency

room. (Id.). Christi testified that, while they were riding to the emergency room,

S.S. stated that she loved Howard and admitted that she had sex with him. (Id. at

655-56). Christi testified that S.S. stated that she was going to move to Florida

with Howard when she turned eighteen. (Id. at 656). Christi further testified that

S.S. told her that Howard gave her the necklace, the teddy bear, and the jewelry

box. (Id. at 658).

{¶33} On cross-examination, Christi testified that Howard was never alone

with S.S. when he took her to school, for ice cream, or the YMCA, but that all the

kids went together with Howard. (Id. at 659-60). Christi testified that she was

unaware of any admission by Howard. (Id. at 663). She testified that her

boyfriend and her talked about Howard and S.S. being flirtatious, but they never

saw Howard do anything wrong. (Id. at 664). Christi testified that she thought her

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Case No. 9-10-50

mom was being crazy when she accused Howard, because her mom was drunk.

(Id. at 666). Christi testified that S.S. told her friend how Howard liked his

sandwiches made and what Howard liked to eat the night she took S.S. to the

hospital. (Id. at 667). Christi testified that she had heard Jody tell Nikki that he

did not want to be at the house if S.S. was not allowed to be there. (Id. at 668).

Christi testified that Nikki told her that she bought S.S. the jewelry box for

Valentine’s Day, but Christi testified that she did not believe that. (Id. at 669).

Christi testified that S.S. told her the sex hurt. (Id. at 675). On re-direct, Christi

testified that she believed S.S. when S.S. stated she had sex. (Id.). Christi testified

that her mom told her about hearing the bed noises from Howard’s bedroom, and

her mom told her that S.S. admitted she was in the bedroom (Id. at 676-77).

Christi also testified that her mom told her that she had found blood in S.S.’s

underwear, and that S.S. wears underwear. (Id. at 678-79).

{¶34} Kristen Blevins testified that she is a friend of Christi, and that, on

July 7, 2009, Christi called her and asked her to come to the hospital. (Id. at 679-

80). Blevins testified that S.S. was very upset and stated that she felt like she was

going to puke. (Id. at 680). Blevins testified that she tried to get S.S. to eat a

sandwich, and S.S. stated “that’s how Jody likes his sandwich” or “that’s what

Jody eats.” (Id. at 681). Blevins testified that S.S. referred to Howard several

times, and that she thought S.S. loved Howard as a boyfriend, because S.S.

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Case No. 9-10-50

seemed infatuated with him. (Id. at 681-82). Blevins testified that S.S. stated that

she did not want to participate in cheerleading anymore because Howard wanted

her to do that, and that she thought the whole conversation was strange. (Id. at

683-84).

{¶35} Annie Gottwald testified that she is the store manager at the Marion

Verizon Wireless store and was asked to testify as the custodian of the records.

(Id. at 685-86). Gottwald identified State’s exhibit four as copies of Verizon

Wireless records for phone numbers 360-7009 and 262-3719. (Id. at 686, 689-90).

Gottwald testified that State’s exhibit 4A contained text messages between phone

numbers 740-360-7009 and 740-262-3719 between July 6, 2009 and July 17,

2009. (Id. at 708-09).

{¶36} At this point in the trial, the video deposition of Beth Russell was

played for the jury. During her deposition, Russell testified that she was the

Sexual Assault Nurse Examiner (SANE Nurse) who examined S.S. (Russell Depo.

at 4, 6). Russell identified State’s exhibit one as a copy of the report she generated

from her exam of S.S. on July 7, 2009. (Id. at 7-8). Russell testified that she

conducted the exam of S.S. alone, and that during her history S.S. stated:

I guess this all started a couple months ago when me and my
family went out to dinner. He -- meaning my sister’s husband --
said that I told him he had cute dimples. He told me that I was
hot. We’ve been in a connection since then. I can’t stand being
apart from him. My mom and dad found out we was having an

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Case No. 9-10-50

affair. * * * he put his private part into my private parts. But
they didn’t tell my sister. Tonight my mom had a little too much
to drink and made me tell my sister everything. Let’s just say he
took my virginity. Yesterday was the last time we had an affair.

(Russell Depo. at 10). Russell testified that S.S. reported the last time she had

sexual relations with Howard was the morning of July 6th at 3927 Smeltzer Road.

(Id. at 11). Russell testified that S.S. indicated that the sexual relations included:

“[v]aginal penetration [s]he also said that he licked her private parts and her face

and kissed her on her lips and her face.” (Id.). Russell further testified that S.S.

stated that she gave Howard oral sex and Howard gave her oral sex. (Id. at 12).

S.S. indicated that Howard ejaculated on her stomach, and S.S. denied that

Howard used a condom. (Id. at 13). S.S. stated that she had urinated, ate, drank,

washed or wiped, brushed her teeth, taken a shower, and changed her clothes since

the last sexual encounter. (Id.). Russell testified that S.S. stated that the suspect

was 32 years of age and was her sister’s husband. (Id. at 14). Russell testified that

S.S. consented to the sexual activity, i.e. S.S. was not physically forced. (Id.).

Russell testified that she did not observe any physical trauma to S.S.’s genital area,

though Russell testified that this was not unusual because S.S. had a high level of

estrogen. (Id. at 15). Russell testified that the hymen is more elastic when it is

“estrogenized,” which could explain why there was no visible trauma. (Id. at 16).

Russell testified that she classified S.S’s genitals as being at “Stage 5” maturity on

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Case No. 9-10-50

a 1-5 scale, meaning S.S. was at the last stage before puberty, and she was

showing higher levels of estrogen and she had pubic hair. (Id. at 17). Russell

testified that she did not inspect S.S.’s vagina or the cervix, because they do not

perform a Foley catheter exam on girls who have not yet begun their period for

fear of causing trauma or injury. (Id. at 17-18). Russell testified that S.S. stated

that she did not want Howard to be mad at her for telling, and that she did not

want to participate in cheerleading anymore, because he talked her into doing it

and she would think about him when she was doing it. (Id. at 18). Russell further

testified that S.S. stated that: she did not want to go to sleep because she did not

want to stop thinking about Howard; and she hoped she would dream about

Howard when she did fall asleep. (Id.).

{¶37} On cross-examination, Russell testified that she did not observe any

physical injury and that she “can only tell you what she told me.” (Id. at 20).

Russell testified that she did not take measurements of the vaginal opening, and as

far as she knew, S.S.’s hymen was intact. (Id. at 22-23). Russell testified that she

combed S.S.’s pubic hair, though she did not put that in her report. (Id. at 24).

Russell testified that she observed no injury to S.S.’s labia majoria, labia minora,

meatus, hymen, or perineum. (Id. at 26-27). Russell testified that S.S. related that

she had no bleeding. (Id. at 30). Russell identified defense exhibit one as pictures

of S.S.’s face and genitals. (Id. at 31). On re-direct, Russell testified that the

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Case No. 9-10-50

pictures show that S.S.’s hymen is “estrogenized,” because it was “fluffy, pale,

and [] folding over itself.” (Id. at 34). Russell testified that S.S. could have trauma

that was not visible since they did not inspect inside her vagina using a catheter.

(Id.). Russell also testified that the lack of injury does not mean that S.S. did not

have sex, since vaginal fluids could be released even at her age. (Id. at 37).

{¶38} Darlene Schoonard, a SANE nurse at Marion General Hospital,

identified State’s exhibit twenty as a diagram of the female genitalia. (Id. at 713-

14). Schoonard testified that some women do not bleed after having sex for the

first time. (Id. at 717). Schoonard testified that puberty causes the hymen to

become “more fluffy” and have a thicker more elastic tissue. (Id.). Schoonard

testified that many times no injury is visible because of the elasticity of the hymen,

the position of the sex partners, the tenseness of the partners, pelvic tilt, and

lubrication. (Id. at 718). Schoonard testified that if the sex was consensual, then

both partners are more relaxed and have better positioning, which leads to less

injury or trauma. (Id. at 718-19). Schoonard testified that puberty begins “vassal

congestion, meaning that the blood vessels in that area become engorged with

blood, that transfers into the cellular system which means that the vagina itself

would be more lubricated.” (Id. at 719). Schoonard testified that they do not use

the Foley catheter technique on girls who have not yet begun their menstrual

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Case No. 9-10-50

cycle. (Id.). Schoonard testified that they seldom see injuries in sexual assault

cases. (Id. at 720).

{¶39} On cross-examination, Schoonard testified that there is no such thing

as a “virgin test,” even though there are some medical societies that believe in

such testing. (Id. at 722). Schoonard testified that no fluids were found on the

outside of S.S., but that pre-ejaculation could exist in the vagina up to seventy-two

hours. (Id. at 722-23). Schoonard testified that S.S. had no visible injuries to her

vaginal area. (Id. at 724, 734, 736). Schoonard testified that no speculum1 was

used since S.S. had not yet started to menstruate. (Id. at 726). Schoonard testified

that no wet mount or phosphatase tests were performed to check for semen, though

some hospitals do those tests, and she testified that Russell performed no test for

semen other than the Wood’s test. (Id. at 736-38). Schoonard testified that most of

the children she sees who have been sexually assaulted are “very happy-go-lucky,”

and that whether sexually assaulted children act out “depends upon the

relationship they have with their abuser many times.” (Id. at 741-42). Schoonard

testified that 99% of the time sexually assaulted children have a strong feeling of

love towards the perpetrator. (Id. at 746).

{¶40} Tammy Blair testified that she contacted the prosecutor’s office

about the case because she saw Howard with S.S. at the YMCA in February or
1
A speculum is “[a]n instrument for enlarging the opening of any canal or cavity in order to facilitate
inspection of its interior.” STEDMAN’S MEDICAL DICTIONARY (5 Ed. 1982) 1310.

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Case No. 9-10-50

March 2009. (Id. at 751-52). Blair testified that Howard was “pursuing [S.S.] in

the pool, touching very inappropriately, just constantly on top of her in the pool.”

(Id. at 752). Blair testified that S.S.

* * * would be sitting on the side of the pool and he would be in
the pool, and her legs would be open and he would be in between
her legs with his hands either on her -- on her sides or her hips
or her thighs. He would be just an inch away from her face or
whispering into her ear. They looked like a couple, but
obviously I could tell that that would not be appropriate
considering their age difference.

(Id. at 753). Blair testified that she never said anything to Howard, since she did

not know what to say. (Id.). She testified that her boyfriend at the time knew

Howard from school, so she knew Howard was around 33 years of age, and that

S.S. appeared to be teen or preteen. (Id.). Blair further testified that she found

Howard’s MySpace page and discovered the girl’s name in an effort to contact the

girl’s family, but all she could locate was the girl’s first name. (Id. at 753-54).

Blair testified that S.S. had multiple posts on Howard’s MySpace wall that said “I

love you,” messages for Valentine’s day, and messages “that were cutesy and had

hearts and things on ‘em[;] [t]he kind of messages that a 12 year old shouldn’t be

sending to a 33 year old man.” (Id. at 754).

{¶41} On cross-examination, Blair testified that she did not report

Howard’s actions to the YMCA lifeguard on duty, and that she did not talk to

anyone about Howard’s actions except her sister and boyfriend. (Id. at 755-57).

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Case No. 9-10-50

Blair testified that she never contacted the prosecutor’s office until July after she

read about the charges against Howard in the newspaper. (Id. at 758-60). Blair

testified that she never saw any sexual touching between Howard and S.S. (Id. at

760). Blair further testified that she feels guilty she never said anything to anyone

earlier about what she witnessed. (Id. at 766).

{¶42} Lorri Ross testified that she was S.S.’s sixth grade teacher, and that

S.S. told her that her boyfriend gave her a teddy bear for Valentine’s Day. (Id. at

767-69). Ross testified that S.S. did not tell her who her boyfriend was, but S.S.

would mention the name Jody quite often. (Id. at 769). Ross testified that S.S.

would talk about Jody as her brother-in-law, and how her brother-in-law was

picking her up from cheerleading practice and taking her to school. (Id.). Ross

testified that S.S. asked her if she wanted to listen to a rap CD that Howard made,

but she declined. (Id.). On cross-examination, Ross testified that S.S. is a very

good student, very bubbly and laughs all the time. (Id. at 770). Ross testified that

she never saw any evidence of problems in S.S.’s home, and that S.S. never

appeared to be suffering from any type of anxiety. (Id. at 771). Ross testified that

she was surprised to find out that S.S. may have been sexually abused based upon

the way S.S. acted at school. (Id.). Ross testified that S.S. never stated that

Howard was her boyfriend, and S.S. never told her about a Valentine’s gift box

with the teddy bear in it. (Id. at 771-72).

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Case No. 9-10-50

{¶43} Deputy Amy McDonald testified that she spoke with S.S. on July 8,

2009, and that S.S. told her that she had sex with Howard. (Id. at 776-80).

According to McDonald, S.S. indicated she was not sure how many times they had

sex, but it was more than twice, the last time being the Monday prior to the

interview when she was in Howard’s bedroom. (Id. at 780). Deputy McDonald

testified that S.S. stated that Howard kissed her, touched her, and penetrated her

with his finger while she was in the front of the vehicle and the younger children

were in the back of the vehicle. (Id. at 782). S.S. stated that Howard would make

a gun with his hand and act like he was shooting towards her when he wanted to

digitally penetrate her. (Id.). Deputy McDonald testified that S.S. stated that

Howard was her boyfriend, and that he was the only person she could talk to, and

the only person that cared for her. (Id. at 783). S.S. stated that she missed Howard

and wanted to know when she could see him again. (Id.). Deputy McDonald

further testified that S.S. indicated that her relationship with Howard began around

Christmastime, and that they had sex in the bedroom and in the downstairs laundry

room. (Id. at 786).

{¶44} On cross-examination, Deputy McDonald testified that S.S. stated

that she told her friend, Brianna Burge, about her relationship with Howard, but

Deputy McDonald never interviewed Burge, and the sheriff’s department

interviewed Burge on June 28, 2010, almost a year after the interview with S.S.

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Case No. 9-10-50

(Id. at 790). Deputy McDonald acknowledged that her report indicated that S.S.

told her “my mom and dad knew and they told me that as long as I didn’t do it

anymore they wouldn’t tell my sister.” (Id. at 795). Deputy McDonald testified

that S.S. appeared to be infatuated with Howard. (Id. at 800).

{¶45} Gwen Chestnut, the Marion County Prosecutor’s Office Victim

Advocate, testified that, on July 15, 2009, the prosecutor and she interviewed S.S.

at their office. (Id. at 812-13). Chestnut testified that, when S.S. was asked if she

knew why she was there, S.S. indicated “because I’m having an affair with my

brother-in-law.” (Id. at 814-15). S.S. indicated that Howard began touching her

around Christmas 2008, which started with simple touching, then moved to

vaginal touching, and eventually to intercourse. (Id. at 815). Chestnut testified

that S.S. stated that Howard put his penis into her mouth, and he asked her to give

him “head,” but she was not sure what to do, so Howard moved her mouth back

and forth. (Id. at 816). Chestnut testified that S.S. indicated that Howard inserted

his finger into her vagina multiple times in his home, in his bed, in the laundry

room, and in the vehicle when he would bring her home from school with the

other kids in the car. (Id.). S.S. called this “finger banging.” (Id.). When Chestnut

asked whether Howard would ejaculate in her vagina, S.S. was not familiar with

the term “ejaculate,” but referred to it as “cum,” and S.S. stated that Howard

would not “cum” into her vagina but on her stomach, her face, or in her mouth.

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(Id. at 817). When Chestnut asked S.S. about how she felt about Howard, S.S.

stated that “she cared about him a lot, she loved him. He was her boyfriend. And

when she was 18 he was going to leave his wife, Nikki, and they were gonna go to

Florida and get married.” (Id.). Chestnut further testified that S.S. indicated that

Howard gave her a teddy bear, a necklace, and a jewelry box, and S.S. would not

turn over the necklace because she was wearing it. (Id. at 818-19). Chestnut

testified that S.S. provided her with her MySpace user ID and password. (Id. at

819). Chestnut testified that she found a tremendous amount of IM messages from

Howard, but she could not see the content of those messages because they were

mostly deleted. (Id.). Chestnut identified State’s exhibit twenty-one as a copy of

S.S.’s MySpace page, which featured S.S.’s profile picture: Howard behind S.S.

holding her in a headlock. (Id. at 820). Chestnut testified that in a four-month

period, Howard instant messaged S.S. four hundred and twelve (412) times,

including: five (5) times in November; one hundred twenty-five (125) times in

December; twenty-six (26) times in January; one hundred forty-three (143) times

in February; seventy-five (75) times in March; and eighteen (18) times in April.

(Id. at 821-22).

{¶46} Chestnut further testified that she listened to the July 8-9, 2009

phone calls that Howard placed from jail. (Id. at 822). Chestnut identified: State’s

exhibit twenty-two as Howard’s July 8, 2009 phone call to his mother, Wanda

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Howard; State’s exhibit twenty-three as Howard’s fourth telephone call; State’s

exhibit twenty-four as Howard’s fifth phone call on July 8, 2009; State’s exhibit

twenty-five as Howard’s sixth phone call on July 8, 2009; and State’s exhibit

twenty-six as Howard’s seventh phone call from July 8, 2009. (Id. at 825-29). On

cross-examination, Chestnut testified that S.S. never denied that these things

happened. (Id. at 838). Chestnut testified that she was not surprised that Howard’s

MySpace contacts with S.S. drop off after April, because that was outside the

“grooming period.” (Id. at 845). Chestnut testified that S.S. has never gone to

counseling. (Id. at 848).

{¶47} Marion County Sheriff’s Office Detective Ryan Scheiderer testified

that he was asked to review a phone call that Howard made to Nikki from jail

around 1:53 p.m. (Id. at 885-87). Detective Scheiderer testified that, during the

phone call, Howard can be heard asking Nikki where his wallet was, and Nikki

advised Howard that his mother had the wallet. (Id. at 886). Detective Scheiderer

testified that he then listened to Howard’s second phone call to Nikki, placed at

2:02 p.m. that same day, in which Howard asks Nikki if she found the wallet. (Id.

at 887). During the call, Nikki tells Howard that she found the wallet, and Howard

asks Nikki to look inside the wallet, according to Detective Scheiderer. (Id.).

Nikki then advises Howard that she found something, and then Nikki is heard

crying on the phone, asking Howard “what is it? What’s this about?” (Id.).

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Howard apologizes to Nikki, asks her not to watch it and to get rid of it, according

to Detective Scheiderer. (Id.). Detective Scheiderer testified that he listened to the

phone calls around 3:00 to 3:15 p.m., and then, contacted Detective Brown and

advised him that they needed to locate Nikki Howard and discover the contents of

Howard’s wallet. (Id. at 889).

{¶48} Detective Scheiderer located Nikki at Howard’s parents’ home, and

he told Nikki he was aware that Howard had something in his wallet, and he asked

Nikki to turn it over to him. (Id. at 890). Detective Scheiderer testified that

Howard’s family became very disruptive, so Nikki asked to speak with them in the

cruiser. (Id. at 890-91). At that point, Nikki produced the wallet but denied

finding anything inside except some medical or insurance cards, so he informed

Nikki that she could get charged with tampering with evidence, which is a felony

offense. (Id. at 891-92). Detective Scheiderer testified that Nikki told them she

had found a memory card with S.S. on it. (Id. at 892). When they asked for Nikki

to turn over the memory card, Nikki advised them that it was in the residence.

(Id.). They then went back to the residence, and Nikki retrieved the memory card,

but declined to turn it over to them, according to Detective Scheiderer. (Id. at 893).

Detective Scheiderer testified that he then told Nikki he would obtain a search

warrant, and, at that point, Nikki turned over the memory card. (Id. at 894).

Detective Scheiderer testified that Nikki advised that the memory card had a video

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of S.S. wearing a towel on her head naked from the neck down dancing around in

front of the camera. (Id. at 895). He further testified that Nikki attempted to play

the video from Howard’s phone, but an error message appeared on the phone. (Id.

at 895-96). Detective Scheiderer testified that they were never able to retrieve the

information from the memory card. (Id. at 896).

{¶49} Detective Scheiderer testified that subsequently they executed a

search warrant at Howard’s 3927 Smeltzer Road residence to search for additional

storage devices, media devices, computers, and miscellaneous memory storage

devices. (Id. at 897-98). Detective Scheiderer identified several of the items

seized from the home, including: State’s exhibit twenty-eight as Howard’s cell

phone; State’s exhibit twenty-nine as a two-gigabyte jump drive; State’s exhibit

thirty as a travel disc; State’s exhibit thirty-one as the circuit board of the desk top

computer; State’s exhibit thirty-two as the SD card removed from the printer;

State’s exhibit thirty-three as miscellaneous CDs and DVDs; State’s exhibit thirty-

four as an Acer laptop from Howard’s desk; State’s exhibit thirty-five as Nikki’s

desktop computer; and State’s exhibit thirty-six as a Dell desktop computer taken

from Howard’s desk. (Id. at 898-901).

{¶50} Marion County Sheriff’s Office Major Jeff Cline testified that he

received a phone call on July 8th from Major Corwin who requested that he go to

512 Mary Street for the execution of a search warrant. (Id. at 927-28). Major

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Cline testified that the detectives were at this residence trying to obtain a media

card from a cell phone. (Id. at 929). Major Cline testified that Nikki retrieved a

couple cell phones from the house, brought them outside, and handed Detective

Scheiderer a media card from a cell phone. (Id. at 929-30). When he asked Nikki

if it was the media card from Howard’s cell phone, Nikki stated “yes,” but Nikki

was unable to get the media card to work. (Id. at 930). Major Cline testified that

he asked Nikki what was on the card, because she had previously stated she had

seen it, and Nikki stated that there was a video of S.S. fresh out of the shower with

a towel on her head naked dancing and laughing. (Id.). On cross-examination,

Major Cline testified that he was not sure which phone Nikki placed the media

card into to play the video. (Id. at 936). He further testified that he could not recall

whether the phone displayed an error message since he was not the officer trying

to open the video. (Id. at 937-38).

{¶51} Marion County Sheriff’s Office Deputy Brian Brown testified that

Nikki stated that the media card contained a video of S.S. naked with a towel

wrapped around her head dancing around. (Id. at 943). Deputy Brown identified:

State’s exhibit twenty-seven as the media card taken from Nikki; State’s exhibit

twenty-eight as Howard’s cell phone; and State’s exhibit twenty-eight-A as

another media card collected at Howard’s parents’ residence. (Id. at 944-45).

Deputy Brown further testified that Detective Scheiderer and he executed the

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search warrant of Howard’s residence. (Id. at 945). He testified that they seized

computers from the residence, and that he took those computers to BCI personally.

(Id. at 946-47). Deputy Brown testified that he collected DNA from Howard,

which was submitted with the rape kit. (Id. at 948). He testified that Step Number

10 of the rape kit is the pubic hair combing, but that no pubic combing was done

in this case because the patient (S.S.) shaved her pubic hair. (Id.).

{¶52} Erica Moore, a computer forensic specialist for BCI & I, identified

State’s exhibit thirty-nine as the report of her analysis of three computer hard

drives. (Id. at 971, 974-75). Moore testified that she created forensic images of the

hard disc drives to retrieve the data on those hard discs, which she then

downloaded onto a DVD disc she identified as State’s exhibit forty. (Id. at 977-

78). Moore identified State’s exhibit twenty-seven as BCI Item No. 1 and the two

gigabyte secure digital (SD) card from Howard’s wallet. (Id. at 978-79). Moore

testified that she was unable to examine the SD card, because it “might have been

damaged in some way” by “maybe running it under water, [or] maybe using a

magnet,” though Moore could not say for sure. (Id. at 980-81). Moore identified:

State’s exhibit twenty-nine, BCI Item No. 2, and a two-gigabyte Universal Serial

Bus (USB) Drive from which she created Attachment A to State’s exhibit forty,

which contained 40 movies and 19 pictures she thought depicted S.S. based upon

S.S.’s MySpace profile picture. S.S. was not naked in any of these movies or

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pictures, however. (Id. at 981, 985-86). Moore identified State’s exhibit thirty,

BCI Item No. 3, and a one-gigabyte USB drive on which she found nothing. (Id. at

982, 986). Moore identified State’s exhibit twenty-eight, BCI Item No. 4, as a

mobile phone from which she created Attachment B to exhibit forty, which

contained text messages, audio files, graphic images, a calendar, and a phone book

file. (Id. at 982, 986). Moore identified State’s exhibit twenty-eight A as the SD

card from the mobile phone (State’s exhibit twenty-eight) from which she created

Attachment C to exhibit forty, which contained 41 pictures she thought might be

S.S. (Id.). Moore identified State’s exhibit thirty-two, BCI Item No. 6, as a two-

gigabyte SD card from which she created Attachment D to State’s exhibit forty,

which contained 2 movies and 12 pictures she thought depicted S.S. (Id. at 983,

986-87).

{¶53} Moore identified State’s exhibit thirty-four, BCI Item No. 8, as the

laptop computer, which had two user accounts, one for “Jody” and one for “JDH.”

(Id. 984, 987-88). Moore testified that the JDH user account was configured for a

password, but the user could login by just hitting the enter key without actually

providing a password. (Id. at 988-89). The Jody user account, however, required

an actual password. (Id. at 989). Moore testified that she identified multiple

references to child pornography related to the JDH user account, which she

compiled in Attachment F of State’s exhibit forty. (Id. at 989-94). Moore testified

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that she identified multiple references to child pornography related to the JDH user

account in a FrostWire peer-to-peer file sharing program, which she compiled in

Attachment G of State’s exhibit forty. (Id. at 995-96). Moore testified that she

located 1,050 images of child pornography on the hard disc’s unallocated space

and in the temporary internet files related to the Jody user account, which she

compiled in Attachment I of State’s exhibit forty. (Id. at 996-97). Moore testified

that she located 1,050 thumbnail images that were associated with the images of

child pornography in Attachment I, which she compiled in Attachment J of State’s

exhibit forty. (Id. at 997-98). Moore testified that she found 320 photographs that

she thought depicted S.S., which she included on Attachment K of State’s exhibit

forty. (Id. at 998-99). Moore testified that she also found text references to S.S. on

the laptop, which she compiled in Attachment L of State’s exhibit forty. (Id. at

999). Moore testified that she found references to internet searches for preteen

nude models on the laptop, which she compiled in Attachment M of State’s exhibit

forty. (Id. at 999-1000).

{¶54} Moore testified that the desktop computer tower, State’s exhibit

thirty-six, BCI Item No. 10, was a computer tower that had two user accounts,

including “Jody” and “log.” (Id. at 1006). The Jody user account was password

protected. (Id. at 1009). Moore identified Attachment U of State’s exhibit forty as

the results of her search for text terms frequently associated with child

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pornography, which netted multiple references. (Id. at 1007). Moore identified

Attachment V of State’s exhibit forty as her search results for text terms frequently

associated with child pornography related to the peer-to-peer file sharing

applications LimeWire and FrostWire on the computer. (Id. at 1009-10). Moore

testified that she found “a lot of text that [she’s] seen in the past to reference child

pornography,” including the following: “baby girl, “self made,” “viv,” “15 year

old,” “Documentsandsettings\Jody\desktop\incomplete\12yearold\underage\child\

daughter\child\sex\child\lover,” “Amy 14 year old,” “Sandra,” “Lolita preteen

model child sex lover ptsc pthc.” (Id.). Moore identified Attachment W to State’s

exhibit forty as a “movie film which [she] thought depicted child pornography.”

(Id.). Moore identified Attachment X to State’s exhibit forty as “942 graphic

images that may depict child pornography,” which she found within the

computer’s unallocated space, the C Drive, and Google Chrome search files on the

Jody user account. (Id. at 1010-12). Moore identified Attachment Y to State’s

exhibit forty as 19 pictures she found on the computer that could be S.S. (Id. at

1012). Moore identified Attachment Z as “searches for 12 year old nude preteen

porn streaming, preteen non nude models, sucking dick webcam girl and young

girl models sexy lolitas.” (Id. at 1012). When Moore was asked whether the

pornographic images on Attachments I and X were downloaded, she answered:

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Some of them are different, for -- sorry, let me find Attachment I
on here. For Attachment I there were some located within
unallocated space and with those you can’t tell where they came
from, you can just tell that they’re there. On the other ones that
were located within Temporary Internet Files, “content.ie5”, like
that leads me to believe that they were looked at using Internet
Explorer. So it was just a website, you know, access websites.

(Id. at 1014-15). The prosecutor then asked if the images that were viewed online

could have been downloaded, and Moore responded, “absolutely.” (Id. at 1015).

Finally, Moore identified State’s exhibit forty-one as a list of the file names of

pictures thought to be child pornography. (Id.).

{¶55} On cross-examination, Moore testified that the pictures she found on

the unallocated space of the computer’s hard disc were not saved, but she could

not testify whether those pictures had been deleted or not. (Id. at 1017-18). She

further testified that the Jody user account on BCI Item No. 10 (State’s exhibit 36,

the desktop computer) was not password protected, but the Jody account on BCI

Item No. 8 (State’s exhibit 34, the Acer laptop) was password protected. (Id. at

1018-19). Some of the 1,050 pictures she found were on the Jody user account

and some on the JDH user account, which was not password protected. (Id. at

1022). Moore testified that the pictures on Attachment I were from the laptop

(BCI Item No. 8), while the pictures on Attachment X were from the desktop (BCI

Item No 10). Moore testified that, out of all the pictures obtained, only one picture

was found on an account that required a password. (Id. at 1024). Moore testified

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Case No. 9-10-50

that the pornographic images could have been deleted by computers’ previous

owners, if any. (Id. at 1030). Moore testified that she could not attribute files

located in unallocated space to any user names. (Id. at 1031). Moore testified that

nineteen counts in the indictment corresponded with pornographic pictures taken

from Attachment I, (pictures extracted from the laptop computer), including:

sixteen counts attributable to pictures found on the JDH user account; one count

attributable to a picture found on the Jody user account; and two counts

attributable to pictures found in unallocated space. (Id. at 1032-33). Moore

testified that the forty-eight counts of child pornography are related to the

pornographic pictures found on BCI Item Nos. 8 and 10 (the Acer laptop and Dell

desktop). (Id. at 1039). Moore testified that the pornographic pictures associated

with forty-seven of the forty-eight counts were from user accounts with no

passwords, meaning anyone who had access to the computer could have viewed

the pictures online. (Id. at 1049-50, 1064-65). Moore testified that she found no

evidence that: any of the pictures were loaded onto a CD, floppy disc, flash drive;

the pictures were enlarged; or the pictures were printed. (Id. at 1060-61). Moore

testified that there was no evidence that the SD card had been wet, magnetized, or

cut up. (Id. at 1068-69).

{¶56} On re-direct, Moore testified that every functional user account on

both the laptop and desktop computers (BCI Item Nos. 8 and 10) were under Jody

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or JDH. (Id. at 1071). Moore testified that the amount of images found on the

machines was more than normal for random internet pop-ups or spam email. (Id.).

Moore testified that if the video on the SD card had been simply deleted, then she

should have been able to open it. (Id. at 1072).

{¶57} Bob Peterson, an investigator in the prosecutor’s office, testified that

he examined Attachments I and X of State’s exhibit forty and downloaded the

worst images; namely, those where children were involved in sexual acts or

pictures focusing on the child’s genitals. (Id. at 1075-77). Peterson identified

State’s exhibit forty-one as a list of the pornographic pictures, with pictures he

picked out being marked with a brief description of the picture listed on the

exhibit. (Id. at 1077). Peterson identified State’s exhibit numbers fifty-two to

seventy-six as the pictures he downloaded and printed off from Attachments I and

X of State’s exhibit forty. (Id. at 1078-79). Peterson then described the contents of

each picture in relation to the Counts in the indictment. (Id. at 1079-89). Peterson

testified that Attachments I and X contained 1,992 images. (Id. at 1089). Peterson

further testified that he was provided with one CD, which he identified as State’s

exhibit five, containing all thirteen of Howard’s phone calls from jail. (Id. at

1090). Peterson made several CDs containing the individual phone calls, which he

identified as State’s exhibits twenty-three to twenty-six. (Id. at 1091-92).

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{¶58} Thereafter, Howard made a Crim.R. 29(A) motion and a motion for a

mistrial, which were both overruled. (Id. at 1123-29). The State then rested, and

the defense presented testimony from two witnesses. (Id. at 1130).

{¶59} Deputy Thomas Miller testified that S.S. never told her mom or dad

or sister, Christi, about having sex with Howard. (Id. at 1131). Deputy Miller

testified that he never learned about S.S.’s parents promising not to tell Nikki

about the incident if S.S. promised not to do it anymore. (Id. at 1132). On cross-

examination, Deputy Miller testified that S.S. was uncomfortable speaking with

him in the presence of her father. (Id.).

{¶60} John Deraedt, owner of a software integration company, testified that

temporary internet files are automatically created by the computer when the user is

downloading or browsing. (Id. at 1134-35, 1145-46). Deraedt testified that he

reviewed Attachments A through Z of State’s exhibit forty, and the only things

relative to the criminal charges were found on Attachments I and X. (Id. at 1153-

54). Deraedt testified that many of the 1,992 images were duplicate images, which

indicated to him that they could have been created by visiting the same website

several times or from several pop-ups from the same website. (Id. at 1156).

Deraedt testified that the pictures that were extracted were “low grade, cropped

images,” not “photo quality stuff * * * like you would typically find on any web

page when you’d click on it and it brings ‘em up.” (Id. at 1157). Deraedt testified

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that none of the pictures were actually downloaded onto the computers, but were

“leftover junk essentially from surfing” the internet. (Id. at 1158). Deraedt

testified that there was no way to tell if the computer user enlarged the pictures or

not. (Id. at 1165-66). On cross-examination, Daraedt testified that he did not have

a degree in computer forensics, and that the BCI report was correct. (Id. at 1175-

76). He testified that no one can say for sure whether the images were

downloaded, but that they were located in areas that typically would not be

indicative of a download. (Id. at 1184).

{¶61} In his second and fourth assignments of error, Howard argues that

the State presented insufficient evidence to support his convictions for pandering

obscenity involving a minor (Count 51) and illegal use of a minor in a nudity-

oriented material or performance (Count 77). Specifically, Howard argues that

Nikki’s out of court statements were the only evidence to support these

convictions. We disagree.

{¶62} Counts 51 and 77 stem from Howard’s cell phone video of S.S. The

criminal offense of pandering obscenity involving a minor is codified in R.C.

2907.321(A)(1) and provides: “[n]o person, with knowledge of the character of the

material or performance involved, shall * * * [c]reate, reproduce, or publish any

obscene material that has a minor as one of its participants or portrayed

observers[.]” The criminal offense of illegal use of a minor in a nudity-oriented

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Case No. 9-10-50

material or performance is codified in R.C. 2907.323(A)(1) and provides, in

pertinent part: “[n]o person shall * * * create, direct, produce, or transfer any

material or performance that shows [a] minor [,not the person’s child or ward,] in

a state of nudity[.]”

{¶63} The evidence that supported Howard’s conviction for Count 51

included more than Nikki’s statement concerning the contents of the cell phone

video. The jury also listened to Howard’s phone call from jail wherein Howard

asked Nikki to get rid of his cell phone’s SD card that was in his wallet. (State’s

Ex. 25). During the phone call, Howard asks if Nikki found what he was talking

about in his wallet, and she says “yes.” (Id.). Nikki then asks, “whose is this?”

and Howard admits it is his. (Id.). Nikki then asks “what am I supposed to do”

and begins crying. (Id.). Howard indicates that he never had intercourse with

“her,” and Nikki sobbingly asks Howard “why did you do this, why?” (Id.).

Howard then asks Nikki “are you still with me,” and Howard then instructs Nikki

to “get rid of it, now.” (Id.). Nikki replies that she’s looking at it now; Howard

tells Nikki “please don’t, please, please, please” several times; and Nikki states

that she has to watch the whole thing. (Id.). In the background, a young girl is

heard giggling and laughing on what sounds like a video clip. (Id.). After viewing

the item, Nikki states, “I just don’t understand,” and Howard promises he will

“make it better” when he gets out of jail, and there will be no more secrets

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Case No. 9-10-50

between them. (Id.). Aside from this evidence, the jury heard evidence of S.S.’s

prior Grand Jury testimony that Howard made a cell phone video of her in the

shower. (June 28-30 and July 1-2, 2010 Tr. at 581). Viewing this evidence in a

light most favorable to the prosecution, a reasonable jury could conclude that

Howard violated R.C. 2907.321(A)(1) and R.C. 2907.323(A)(1).

{¶64} Howard’s second and fourth assignments of error are, therefore,

overruled.

{¶65} In his third and fifth assignments of error, Howard argues that the

State presented insufficient evidence to support his convictions for pandering

obscenity involving a minor (Counts 52 to 76) and illegal use of a minor in a

nudity-oriented material or performance (Counts 78-102).

{¶66} Counts 52-76 and 78-102 stem from the child pornography found on

Howard’s computer hard drives. Counts 52-76 charged Howard with violations of

R.C. 2907.321(A)(5), which provides: “[n]o person, with knowledge of the

character of the material or performance involved, shall * * * [b]uy, procure,

possess, or control any obscene material, that has a minor as one of its

participants[.]” As used in R.C. 2907.321, “material” is broadly defined and

“includes an image or text appearing on a computer monitor * * * or an image or

text recorded on a computer hard disk[.]” R.C. § 2907.01(J). Counts 78-102

charged Howard with violations of R.C. 2907.323(A)(3), which provides: “[n]o

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Case No. 9-10-50

person shall * * * [p]ossess or view any material or performance that shows a

minor who is not the person’s child or ward in a state of nudity[.]”

{¶67} Howard’s arguments that he never downloaded or printed the

obscene material lack merit since “material” includes images appearing on a

computer monitor or images recorded on the computer’s hard disk, where the

images were found in this case. The testimony at trial demonstrated that the

images had to have been viewed on the computer screen for those images to be

recorded on the computer’s hard disks. The evidence demonstrated that Howard

had over one thousand images of child pornography, multiple text references to

terms indicative of child pornography, and texts indicative of Google searches for

child pornography on the hard disks of computers that has user name accounts for

“JDH” and “Jody”—Howard’s initials and first name, respectively. These

computers had no other user accounts on them, and Howard’s wife, Nikki, had

accounts on different computers where no child pornography was found. This

evidence, taken with the evidence of Howard’s cell phone video of S.S. and the

evidence of sexual conduct with S.S., could lead a reasonable juror to conclude

that Howard was responsible for procuring and possessing the child pornography

on the computer hard disks. Furthermore, a reasonable juror could conclude that

Howard procured the child pornography with knowledge of the character of the

material from the amount of images found. A rational juror could also conclude

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Case No. 9-10-50

that the images on Howard’s computers were not the result of spam email and

random internet pop-ups in light of their quantity. Viewing the evidence presented

in a light most favorable to the prosecution, a reasonable juror could have

concluded that Howard violated R.C. 2907.321(A)(5) and R.C. 2907.323(A)(3).

{¶68} Howard’s third and fifth assignments of error are, therefore,

overruled.

{¶69} In his sixth and seventh assignments of error, Howard argues that his

convictions for rape (Counts 1-3) and gross sexual imposition (Counts 41-43) are

against the manifest weight of the evidence. Specifically, Howard argues that the

jury lost its way by believing S.S.’s statements made prior to trial rather than her

testimony in court under oath. We disagree.

{¶70} The criminal offense of rape is codified in R.C. 2907.02, which

provides, in pertinent part: “[n]o person shall engage in sexual conduct with

another who is not the spouse of the offender * * * when * * * [t]he other person

is less than thirteen years of age, whether or not the offender knows the age of the

other person.” R.C. 2907.02(A)(1)(b). The criminal offense of gross sexual

imposition is codified in R.C. 2907.05 and provides, in pertinent part: “[n]o person

shall have sexual contact with another, not the spouse of the offender; cause

another, not the spouse of the offender, to have sexual contact with the offender;

or cause two or more other persons to have sexual contact when * * * [t]he other

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person, or one of the other persons, is less than thirteen years of age, whether or

not the offender knows the age of that person.” R.C. 2907.05(A)(4).

{¶71} Howard argues that S.S.’s statements made to law enforcement prior

to trial are not trustworthy. As an initial matter, we note that even under a

manifest weight analysis, we must allow the trier of fact appropriate discretion on

credibility of the witnesses. DeHass, 10 Ohio St.2d at 231. S.S. stated to law

enforcement that Howard and she had sex more than once but probably not more

than three times. S.S. also stated to law enforcement that Howard performed oral

sex upon her, and she performed oral sex upon Howard. S.S. further stated to law

enforcement that Howard inserted his finger into her vagina, kissed her lips and

breasts, and fondled her private parts. S.S. made consistent, detailed statements,

including the locations, the signals, and persons present, to several members of

law enforcement and testified to these aforementioned acts under oath before the

Grand Jury. Although S.S. testified at trial that she lied about the incidents, there

was testimony indicating that S.S. loved Howard and that S.S. stated she wished

she never said anything about what happened. During her interview with Deputy

McDonald, S.S. asked several times when she could she Howard again. S.S. also

stated to several individuals before trial, including her sister, Christi, law

enforcement, and her teacher, that the jewelry box, the teddy bear, and necklace

were Valentine’s Day gifts from Howard. Although S.S. testified at trial that the

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gifts were from Nikki and Howard jointly, the jewelry box contained notes

indicative that it came from Howard only. Furthermore, S.S. refused to turn over

the necklace to authorities, which tends to corroborate Christi’s testimony that S.S.

adored her necklace because it was from Howard.

{¶72} Since S.S. consistently and repeatedly made detailed statements of

her sexual relationship with Howard before trial, S.S.’s testimony at trial was

impeached by these prior statements. Aside from that, S.S stated that she could

not recall, did not know, or “kinda sorta” for her answer to many of the

prosecution’s questions. In addition to that, the jury was made aware of the

family’s possible attempts to cover-up what happened. This included Howard’s

father-in-law’s testimony at trial denying his suspicions of Howard, and believing

his daughter’s changed story. This also included evidence that Howard’s wife,

Nikki, helped destroy evidence in the case and accused her own father of

molesting S.S. All of this, along with S.S.’s stated love for Howard, could lead

the jury to question S.S.’s credibility and trustworthiness at trial.

{¶73} Regardless of S.S.’s prior statements, the jury had other

circumstantial evidence of Howard’s guilt. “Circumstantial evidence and direct

evidence inherently possess the same probative value.” State v. Treesh (2001), 90

Ohio St.3d 460, 485, 739 N.E.2d 749, citing Jenks, 61 Ohio St.3d 259, at

paragraph one of the syllabus. The evidence demonstrated that Howard became

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irate and suicidal in direct response to S.S.’s admission to Nikki that she had sex

with Howard. Howard, in fact, admitted that “something” happened but would not

give details. Howard’s actions in the aftermath of S.S.’s admission are indicative

of Howard’s guilt—why would he have such a strong reaction if S.S.’s admission

were false? The jury also heard evidence from family members, Christi and Bret,

that Howard flirted with S.S., and the jury heard evidence from an independent

witness, Tammy Blair, that Howard and S.S. interacted like a boyfriend and

girlfriend at the YMCA pool. The jury also heard evidence regarding Howard’s

hundreds of MySpace contacts with S.S., including chats where Howard indicates

how much he misses S.S. and asks S.S. to delete his MySpace messages because

Nikki is getting suspicious. The jury had evidence of Howard’s possession of

child pornography, including a video of S.S. dancing naked on his cell phone.

Many of the children depicted in the pornography were performing sexual acts

similar to the ones that S.S. stated were performed between Howard and her. The

jury also heard evidence from which it could have concluded that S.S. was in

Howard’s bedroom having sex, as S.S.’s mother, Jane, concluded. Although no

physical evidence was found on S.S. indicative of sexual activity, Jane testified

that she found blood on S.S.’s underwear one time, even though S.S. had not yet

started her period. While none of these pieces of evidence individually may have

been enough to convict Howard, taken together, along with S.S.’s multiple,

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consistent statements implicating Howard, the evidence as a whole weighs in favor

of Howard’s guilt. Therefore, we cannot conclude that Howard’s rape and gross

sexual imposition convictions are against the weight of the evidence.

{¶74} Howard’s sixth and seventh assignments of error are, therefore,

overruled.

{¶75} In his eighth assignment of error, Howard argues that the State

provided insufficient evidence to support his complicity to tampering with

evidence conviction. Specifically, Howard argues that the State failed to produce

evidence that the SD card was altered or destroyed with the purpose of impairing

its value or availability as evidence.

{¶76} The offense of tampering with evidence is codified in R.C. 2921.12

and provides, in pertinent part: “[n]o person, knowing that an official proceeding

or investigation is in progress * * * shall * * * [a]lter, destroy, conceal, or remove

any record, document, or thing, with purpose to impair its value or availability as

evidence in such proceeding or investigation[.]” R.C. 2921.12(A)(1). R.C.

2923.03(A)(4) provides: “[n]o person, acting with the kind of culpability required

for the commission of an offense, shall * * * [c]ause an innocent or irresponsible

person to commit the offense.” “A person acts purposely when it is his specific

intention to cause a certain result * * *.” R.C. § 2901.22(A). “[I]ntent, lying as it

does within the privacy of a person’s own thoughts, is not susceptible of objective

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proof [; and therefore,] intent can be determined from the surrounding facts and

circumstances, and persons are presumed to have intended the natural, reasonable

and probable consequences of their voluntary acts.” State v. Garner (1995), 74

Ohio St.3d 49, 60, 656 N.E.2d 623.

{¶77} The complicity to tampering with evidence charge stems from

Howard’s phone conversation with Nikki from jail wherein he asks Nikki to “get

rid of” his SD card, which contained a video of S.S. dancing naked on it. As we

mentioned earlier, what appears to be the contents of the video was heard in the

background of the phone conversation between Nikki and Howard. The testimony

at trial demonstrated that law enforcement arrived at Howard’s parents’ home to

retrieve the SD card from Nikki less than two hours after the phone conversation

when the SD card was playing the video. Although Nikki refused to provide law

enforcement with the SD card at first, eventually Nikki went inside the home,

without the accompaniment of a law enforcement officer, and retrieved the SD

card. When Nikki presented the SD card for the officer to play the video, the

phone displayed an error message. Nikki stated that she did not erase or destroy

the SD card; however, the BCI & I lab was unable to open the SD card, which

Moore testified was unusual absent tampering. The jury was also aware of the fact

that Nikki was being very supportive of her husband, even after seeing the video

of S.S. dancing naked, to the point of disowning her own family and implicating

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her own father in the crime. Viewing this evidence in a light most favorable to the

prosecution, a rational trier of fact could conclude that Howard solicited Nikki to

alter or destroy the SD card with the purpose of impairing its value or availability

as evidence against her husband.

{¶78} Howard’s eighth assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY DENYING HIS MOTION TO
SEVER THE COUNTS.

{¶79} In his first assignment of error, Howard argues that the trial court

erred by denying his motion to sever Counts 51-103 of the supplemental

indictment from Counts 1-50 of the original indictment for purposes of trial.

Howard argues that the joinder of these Counts was improper because: it was

prejudicial; evidence of each crime was not simple and direct; and the State would

not have been able to introduce evidence of the joined offenses as “other acts”

evidence under Evid.R. 404(B). We disagree.

{¶80} Crim.R. 8(A) permits the joinder of multiple charges against a

defendant if the charges “are of the same or similar character, or are based on the

same act or transaction, or are based on two or more acts or transactions connected

together or constituting parts of a common scheme or plan, or are part of a course

of criminal conduct.” Moreover, “it is well settled that the law favors joinder.”

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State v. Waddy (1992), 63 Ohio St.3d 424, 429, 588 N.E.2d 819, superseded by

constitutional amendment as stated in Smith, 80 Ohio St.3d 89. See, also, State v.

Voorhis, 3d Dist. No. 8-07-23, 2008-Ohio-3224, ¶63.

{¶81} When a defendant claims that he was prejudiced by the joinder of

multiple offenses, a court must determine: (1) whether evidence of the other

crimes would be admissible even if the counts were severed; and (2) if not,

whether the evidence of each crime is simple and distinct. State v. Schaim, (1992)

65 Ohio St.3d 51, 59, 600 N.E.2d 661, citing State v. Hamblin (1988), 37 Ohio

St.3d 153, 158-59, 524 N.E.2d 476. Moreover, “[i]f the evidence of other crimes

would be admissible at separate trials, any ‘prejudice that might result from the

jury’s hearing the evidence of the other crime in a joint trial would be no different

from that possible in separate trials,’ and a court need not inquire further.”

Schaim, 65 Ohio St.3d at 59, quoting Drew v. United States (C.A.D.C., 1964), 331

F.2d 85, 90. See also Voorhis, 2008-Ohio-3224, at ¶66.

{¶82} To prevail on a claim that the trial court erred in denying a motion to

sever, the defendant generally has the burden of affirmatively demonstrating:

(1) that his rights were prejudiced, (2) that at the time of the
motion to sever he provided the trial court with sufficient
information so that it could weigh the considerations favoring
joinder against the defendant’s right to a fair trial, and (3) that
given the information provided to the court, it abused its
discretion in refusing to separate the charges for trial.

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Schaim, 65 Ohio St.3d at 59, citing State v. Torres (1981), 66 Ohio St.2d 340, 421

N.E.2d 1288, syllabus. However, a defendant’s failure to renew his or her Crim.R.

14 motion for severance at the close of the State’s case or at the close of all

evidence waives all but plain error on appeal. State v. Miller (1995), 105 Ohio

App.3d 679, 691, 664 N.E.2d 1309, citations omitted.

{¶83} To demonstrate plain error, the defendant must demonstrate that the

trial court deviated from a legal rule, the error was an obvious defect in the

proceeding, and the error affected a substantial right. State v. Barnes (2002), 94

Ohio St.3d 21, 27, 759 N.E.2d 1240. The defendant must also demonstrate that

the outcome of his trial would clearly have been different but for the trial court’s

errors. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043, citing

State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894. We recognize plain

error “‘with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” State v. Landrum (1990), 53 Ohio

St.3d 107, 110, 559 N.E.2d 710, quoting State v. Long (1978) 53 Ohio St.2d 91,

372 N.E.2d 804, paragraph three of the syllabus.

{¶84} Howard failed to renew his Crim.R. 14 motion for severance at the

close of the State’s case or at the close of all evidence, and therefore, Howard has

waived all but plain error on appeal. (June 28-30 and July 1-2, 2010 Tr. at 1123-

30, 1191). Howard has failed to demonstrate plain error. To begin with, Howard

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has failed to demonstrate that the trial court deviated from a legal rule. In a

similar case, this Court found that child pornography depicting images similar to

the defendant’s alleged conduct with the victim were admissible to show

defendant’s motive, intent, scheme, or plan under Evid.R. 404(B); and therefore,

joinder of the child pornography and rape charges was permissible. Voorhis, 2008-

Ohio-3224, at ¶73, citing State v. Eichorn, 5th Dist. No. 02 CA 953, 2003-Ohio-

3415, ¶¶33-34. Similar to the facts in Voorhis, the record demonstrates that

Howard was alleged to engage in conduct similar to that depicted in the child

pornography on his computer hard disks. Notably, the images were of girls of

similar ages to S.S. performing and receiving oral sex, and having intercourse with

adult men. (State’s Exs. 52-76); (June 23-30 and July 1-2, 2010 Tr. at 1079-89).

Additionally, Howard has failed to demonstrate that, but for the trial court’s denial

of his Crim.R. 14 motion, the result of the trial would have clearly been different.

Therefore, Howard has failed to demonstrate plain error necessary to sustain his

first assignment of error.

{¶85} Howard’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. IX

THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT AND VIOLATED HIS RIGHT
TO CONFRONTATION UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND SECTION 10, ARTICLE I OF THE

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OHIO CONSTITUTION BY ALLOWING DEPUTIES TO
TESTIFY ABOUT NIKKI’S STATEMENTS THAT HE HAD
SEX WITH [S.S.]. [COUNTS 1-3 AND 41-43]

ASSIGNMENT OF ERROR NO. X

THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT AND VIOLATED HIS RIGHT
TO CONFRONTATION UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION BY ALLOWING DEPUTIES TO
TESTIFY ABOUT NIKKI’S STATEMENTS ABOUT THE
VIDEO ON HIS CELL PHONE. [COUNTS 51 AND 77].

{¶86} In his ninth assignment of error, Howard argues that the trial court

violated the Confrontation Clause by allowing Detective Miller and Major Corwin

to testify that Nikki stated: (1) S.S. admitted having sex with Howard; and (2)

Howard admitted something happened but would not be specific about what had

happened. Similarly, Howard argues in his tenth assignment of error that the trial

court violated the Confrontation Clause by allowing Deputy Scheiderer and Major

Cline to testify that Nikki stated that Howard had a video of S.S. dancing, wearing

only a towel on her head.

{¶87} The Confrontation Clause of the Sixth Amendment to the United

States Constitution provides that: “* * * [i]n all criminal prosecutions, the accused

shall enjoy the right * * * to be confronted with the witnesses against him.”

Crawford v. Washington (2004), 541 U.S. 36, 38, 124 S.Ct. 1354, 158 L.Ed.2d

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177. Similarly, Section 10, Article I of the Ohio Constitution provides that: “[i]n

any trial, in any court, the party accused shall be allowed * * * to meet the

witnesses face to face.”

{¶88} The question of whether a criminal defendant’s rights under the

Confrontation Clause have been violated is a question of law reviewed de novo.

State v. Turks, 3d Dist. Nos. 1-10-02, 1-10-26, 2010-Ohio-5944, ¶11, citing State

v. Keith, 3d Dist. Nos. 1-06-46, 1-06-53, 2007-Ohio-4632, ¶49, citing United

States v. Robinson (C.A.6, 2004), 389 F.3d 582, 592. Since Howard failed to

object to the testimony at trial on Confrontation Clause grounds, we review for

plain error. Turks, 2010-Ohio-5944, at ¶11, citations omitted. The plain error

standard has been previously set forth above.

{¶89} Howard has failed to demonstrate plain error here. Nikki’s statement

concerning Howard’s cell phone video of S.S. was not hearsay since Nikki was a

co-conspirator as to the tampering with evidence charge. Evid.R. 801(D)(2)(e).

As such, the admission of Nikki’s statements did not violate the Confrontation

Clause. State v. Braun, 8th Dist. No. 91131, 2009-Ohio-4875, ¶¶114-118. Aside

from that, as previously mentioned Nikki’s statements were not the only evidence

that Howard created the video of S.S., so we are not persuaded that the result of

the trial would have clearly been different without Nikki’s statements being

admitted.

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{¶90} With respect to Nikki’s statements to law enforcement that S.S.

admitted having sex with Howard, and Howard admitted “something” happened,

we cannot conclude that their admission constituted plain error in this case. Even

assuming that the trial court erred by admitting these statements, we are not

persuaded that the results of the trial would have been clearly different. Nikki’s

statements that S.S. admitted having sex with Howard was merely cumulative

since S.S.’s prior statements concerning her sexual activity with Howard were

admitted into evidence through multiple other witnesses. Furthermore, Christi

testified that she received a text message from Nikki indicating that S.S. had sex

with Howard. Likewise, the fact that Nikki stated that Howard admitted

“something” happened was merely cumulative in light of the evidence presented

concerning Howard’s adverse reactions to S.S.’s admission of them having sex,

i.e. Howard’s act of slamming his head into glass and threatening to commit

suicide. As we stated before, the jury could infer an implicit admission of guilt

from Howard’s immediate and strong reaction. Aside from that, the jury was

presented with several other pieces of evidence, albeit mostly circumstantial, from

which they could have found Howard guilty of rape and gross sexual imposition.

{¶91} Howard’s ninth and tenth assignments of error are, therefore,

overruled.

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ASSIGNMENT OF ERROR NO. XI

DEFENDANT-APPELLANT RECEIVED PREJUDICIAL
INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION
OF HIS SIXTH AND FOURTEENTH AMENDMENTS
RIGHTS, AS WELL AS HIS RIGHTS UNDER SECTION 10,
ARTICLE I, OHIO CONSTITUTION.

{¶92} In his eleventh assignment of error, Howard argues that his trial

counsel was ineffective for failing to preserve his Confrontation Clause arguments

with respect to assignments of error nine and ten on appeal. We disagree.

{¶93} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶94} Counsel is entitled to a strong presumption that all decisions fall

within the wide range of reasonable professional assistance. State v. Sallie (1998),

81 Ohio St.3d 673, 675, 693 N.E.2d 267. Tactical or strategic trial decisions, even

if unsuccessful, do not generally constitute ineffective assistance. State v. Carter

(1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. Rather, the errors complained of

must amount to a substantial violation of counsel’s essential duties to his client.

See State v. Bradley (1989), 42 Ohio St. 3d 136, 141-142, 538 N.E.2d 373,

quoting State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623.

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{¶95} Prejudice results when “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.

{¶96} Howard has failed to demonstrate ineffective assistance of trial

counsel. To begin with, this Court has recognized that trial counsel’s failure to

object to testimony based upon the Confrontation Clause, like other objections, is

a matter of trial strategy, and therefore, not ineffective assistance. Turks, 2010-

Ohio-5944, at ¶44. Furthermore, we have already determined that the trial court

did not err in admitting Nikki’s statements regarding Howard’s cell phone video of

S.S. since those statements were admissible pursuant to Evid.R. 801(D)(2)(e), and

therefore, trial counsel was not ineffective for failing to object as to those

statements. With regard to Nikki’s statements concerning S.S.’s admission of

having sex with Howard and that Howard admitted “something” happened, we

cannot conclude that, but for their admission, the result of the proceeding would

have been different. As such, Howard has failed to demonstrate prejudice

resulting from trial counsel’s alleged error to sustain his ineffective assistance

claim.

{¶97} Howard’s eleventh assignment of error is, therefore, overruled.

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ASSIGNMENT OF ERROR NO. XII

THE COMBINATION OF THE AFOREMENTIONED
ERRORS ARE SUFFICIENT TO CALL INTO QUESTION
THE VALIDITY OF THE VERDICT, PREVENTING
APPELLANT FROM OBTAINING THE FAIR TRIAL
GUARANTEED BY THE FIFTH AND SIXTH
AMENDMENTS TO THE U.S. CONSTITUTION AS MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT, AND ARTICLE ONE, SECTIONS TEN AND
SIXTEEN OF THE OHIO CONSTITUTION.

{¶98} In his twelfth and final assignment of error, Howard argues that he

was deprived a fair trial because of the multiple errors that occurred in this case.

We disagree. “The failure to establish multiple instances of harmless error makes

the doctrine of cumulative error inapplicable.” State v. Hupp, 3d Dist. No. 1-08-

21, 2009-Ohio-1912, ¶33. Since Howard has failed to demonstrate error herein, he

has also failed to demonstrate cumulative error.

{¶99} Howard’s twelfth assignment of error is, therefore, overruled.

{¶100} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

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