[Cite as State v. Cuthbert, 2012-Ohio-4472.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Case No. 11CAA070065
DEWITT A. CUTHBERT :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 10 CRI-12-
0608A
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 28, 2012
APPEARANCES:
For Appellant: For Appellee:
ANTHONY M. HEALD CAROL HAMILTON O’BRIEN
125 N. Sandusky St. DELAWARE COUNTY PROSECUTOR
Delaware, OH 43015 KYLE ROHRER
140 N. Sandusky St., 3rd Floor
Delaware, OH 43015
[Cite as State v. Cuthbert, 2012-Ohio-4472.]
Delaney, J.
{¶1} Appellant Dewitt A. Cuthbert appeals from the judgment entry of the
Delaware County Court of Common Pleas convicting him of three counts of rape and
one count of kidnapping and sentencing him to an aggregate prison term of seven
years. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on June 17, 2009 in the city of Delaware, Ohio, at the
apartment appellant shared with M.R. Appellant and M.R. were in a dating
relationship and lived together from February, 2009 through June, 2009. M.R.’s minor
son E. and E.’s half-sister J.S. also lived at the apartment.
{¶3} On the evening of June 17, M.R. went upstairs to finish some homework
for her college class. Appellant briefly interrupted her and complained he was angry
she was on the computer instead of spending time with him. Appellant went back
downstairs and M.R. continued to work in the bedroom.
{¶4} About twenty minutes later appellant came back into the room and said
he wanted to have sex with M.R. She rolled her eyes and said something to the effect
of “let’s get it over with.” Appellant got mad, yelled an obscenity at M.R., and again
left the room. M.R. finished her assignment and went to bed.
{¶5} M.R. fell asleep but awoke to find appellant forcing her into an act of
fellatio. Appellant then penetrated M.R. vaginally and anally while yelling obscenities
and holding her by the hair. M.R. pleaded with appellant to stop but he did not. After
he completed the sex acts, appellant went into the bathroom and M.R. remained in the
Delaware County, Case No. 11CAA070065 3
bed, crying. Appellant said to her, “How does it feel to be treated like a piece of
[expletive]?”
{¶6} M.R. went downstairs, intending to leave the house. J.S. heard appellant
and M.R. arguing and came up from the basement to ask what was wrong. Appellant
said it was none of her business and told her to go back downstairs. J.S. later testified
she didn’t know what appellant and M.R. argued about, but she knew M.R. went into
the bathroom and vomited, and J.S. sat with her on the couch until she fell asleep.
{¶7} June 18 passed without incident. On June 19, appellant went to work
and M.R. picked him up afterward. They argued on the way home, and M.R.
confronted appellant about the rapes. He said she was blowing it out of proportion
and he couldn’t take it back. During the argument, appellant stated “You don’t know
what rape is but you’re about to find out.” Eventually the police were called, but upon
their arrival appellant was already gone.
{¶8} In the course of the investigation of the June 19 incident, M.R. told Sgt.
Shellito of the Delaware City Police Department about the rape two days earlier, but
also stated she didn’t want to pursue criminal charges at that time.
{¶9} Shellito followed up on M.R.’s allegations and interviewed appellant.
Appellant agreed with M.R.’s account of the sexual acts that occurred, but claimed the
acts were consensual.
{¶10} M.R. and appellant ended their relationship. People who knew M.R. said
she changed in the aftermath of the rapes and became withdrawn and depressed.
M.R. began attending counseling.
Delaware County, Case No. 11CAA070065 4
{¶11} In the fall of 2010, M.R. spoke with Detective Christina Burke of the
Delaware County Sheriff’s Office and told her about the rapes. At that point, M.R. was
ready to pursue criminal charges.
{¶12} Appellant was charged by indictment with three counts of rape pursuant
to R.C. 2907.02(A)(2) and one count of kidnapping pursuant to R.C. 2905.01(A)(4).1
Appellant entered pleas of not guilty and the case proceeded to jury trial. Appellant
moved for acquittal pursuant to Crim.R. 29 at the close of appellee’s evidence and at
the close of all of the evidence.
{¶13} Appellant was found guilty as charged. The trial court ruled that Count
Four, kidnapping, merged with Counts One through Three (three counts of rape), and
that Counts Two and Three (both rape) merged for sentencing. Appellee elected to
sentence on Count One, rape, and Count Two, rape. The trial court sentenced
appellant to an aggregate prison term of seven years and found him to be a Tier III
sex offender.
{¶14} Appellant now appeals from the judgment entry of conviction and
sentence.
{¶15} Appellant raises seven Assignments of Error:
{¶16} “I. THE JURY’S GUILTY VERDICTS ON COUNTS ONE, TWO, THREE
AND FOUR WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
PRESENTED AT THE TRIAL OF THIS MATTER.”
1
Appellant was also charged by indictment with a fourth count of rape against a different
victim. This count was severed from the others for trial and is not at issue in this appeal.
Delaware County, Case No. 11CAA070065 5
{¶17} “II. THE COURT COMMITTED PREJUDICIAL ERROR OVERRULING
THE DEFENDANT’S MOTION FOR A MISTRIAL DUE TO PROSECUTORIAL
MISCONDUCT.”
{¶18} “III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A
FAIR TRIAL IN VIOLATION OF THE DEFENDANT’S FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
ARTICLE 1, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.”
{¶19} “IV. THE COURT COMMITTED REVERSABLE (sic) ERROR IN
FINDING THAT THE RAPE CONVICTIONS SHOULD NOT MERGE AND IN
IMPOSING CONSECUTIVE SENTENCES ON THOSE COUNTS.”
{¶20} “V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
PERMITTED THE STATE OF OHIO TO PRESENT A PORTION OF A TAPE
RECORDING WITHOUT REQUIRING, UPON REQUEST BY THE DEFENDANT,
THAT THE BALANCE OF THE TAPE BE PLAYED.”
{¶21} “VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN
IT PREVENTED THE DEFENDANT FROM ASKING QUESTIONS REGARDING
EXCULPATORY STATEMENTS MADE TO OFFICER SHELLITO.”
{¶22} “VII. THE COURT COMMITTED PREJUDICIAL ERROR IN
PREVENTING RELEVANT CROSS EXAMINATION OF MATTERS RELATING TO
THE ISSUE OF CONSENT.”
Delaware County, Case No. 11CAA070065 6
I.
{¶23} Appellant argues in his first assignment of error his convictions for three
counts of rape and one count of kidnapping are against the manifest weight and
sufficiency of the evidence.
{¶24} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
syllabus, in which the Ohio Supreme Court held, “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. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.”
{¶25} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, at
387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of
Delaware County, Case No. 11CAA070065 7
the evidence and ordering a new trial should be reserved for only the “exceptional
case in which the evidence weighs heavily against the conviction.” Id.
{¶26} Appellant was convicted of three counts of rape pursuant to R.C.
2907.02(A)(2), which states: “No person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or threat of
force.” Count one was for the act of fellatio, count two for the act of digital anal
penetration, and count three for the act of penile vaginal penetration. Appellant was
also convicted of one count of kidnapping pursuant to R.C. 2905.01(A)(4), which
states in pertinent part, “No person, by force, threat, or deception, * * * shall remove
another from the place where the other person is found or restrain the liberty of the
other person * * * to engage in sexual activity, as defined in section 2907.02 of the
Revised Code, with the victim against the victim’s will.”
{¶27} Appellant’s argument is premised upon his assertion the testimony of
appellee’s witnesses was not credible. Appellant also argues the jury lost its way
because evidence was presented that appellant and M.R. had an otherwise
untroubled relationship, M.R. did not immediately call the police, and the sexual
assault in the bedroom did not awaken E. who was sleeping next door.
{¶28} In the present case, M.R. testified in detail as to the sexual acts
committed by appellant and the acts were not consensual. Moreover, we also are
mindful that “[c]orroboration of victim testimony in rape cases is not required.” State v.
Johnson, 112 Ohio St.3d 210-217, 2006-Ohio-6404 at ¶ 53.
Delaware County, Case No. 11CAA070065 8
{¶29} Upon review of the entire record, we are not convinced the jury lost its
way and we find sufficient evidence, if believed, to support the findings of guilt. We
further find no manifest miscarriage of justice.
{¶30} Appellant’s first assignment of error is overruled.
II., III.
{¶31} Appellant’s second and third assignments of error are related and will be
considered together. First, appellant asserts appellee repeatedly committed
prosecutorial misconduct and the trial court should have granted a mistrial; he further
alleges he was therefore deprived of due process and a fair trial in violation of the 5th,
6th, and 14th Amendments of the United States Constitution and Article I, Sections 10
and 16 of the Ohio Constitution.
{¶32} The test for prosecutorial misconduct is whether the prosecutor’s
remarks and comments were improper and if so, whether those remarks and
comments prejudicially affected the substantial rights of the accused. State v. Lott, 51
Ohio St.3d 160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591,
112 L.Ed.2d 596 (1990). In reviewing allegations of prosecutorial misconduct, we
must review the complained-of conduct in the context of the entire trial. Darden v.
Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
{¶33} Complaints of prosecutorial misconduct are often raised in the context of
the closing argument, but the question of “how far is too far” is to be judged by the
circumstances of the particular case:
[T]he prosecutor may not invite the jury to judge the case upon standards or
grounds other than the evidence or the law of the case. Thus, he cannot
Delaware County, Case No. 11CAA070065 9
inflame the passion and prejudice of the jury by appealing to the community
abhorrence or expectations with respect to crime in general, or crime of the
specific type involved in the case. United States v. Solivan, 937 F.2d 1146
(C.A.6, 1991).
The prosecutor is not only entitled, he is encouraged to advocate strongly, even
vehemently, for conviction. But while he may strike hard blows, the prosecutor
is not at liberty to strike foul ones. Berger v. United States, 295 U.S. 78, 55
S.Ct.629, 79 L.Ed. 1314 (1935).
The prosecutor’s conduct should always be judged within the context of the
whole case, and most particularly, the whole argument.
We turn now to the consequences of overstepping by the prosecutor. The trial
of the case is under the control of the trial judge, who must monitor the
proceedings as they develop, and control the conduct of both counsel.
Because the trial judge is present and sees and hears all that goes on, great
deference should be accorded to his judgment as to how to handle these
issues.
When misconduct occurs, the trial judge should admonish the prosecutor, and if
the conduct is severe enough, admonish him within the presence of the jury.
He should instruct the jury to disregard the prosecutor’s statements only if
requested by defense counsel. State v. Harcourt, 46 Ohio App.3d 52, 546
N.E.2d 214 (1988). If appellant moves for a mistrial, the court should overrule
the motion only if satisfied that the conduct will not result in a miscarriage of
justice, considering the curative steps taken by the court. * * * *.
Delaware County, Case No. 11CAA070065 10
When reviewed by the appellate court, we should examine the climate and
conduct of the entire trial, and reverse the trial court’s decision as to whether to
grant a mistrial only for a gross abuse of discretion. See State v. Maurer, 15
Ohio At.3d 239, 473 N.E.2d 768 (1984), cert.denied, 472 U.S. 1012, 105 S.Ct.
2714, 86 L.Ed.2d 728 (1985).
State v. Draughn, 76 Ohio App.3d 664, 671, 602 N.E.2d 790 (5th Dist.1992).
{¶34} Appellant complains of a number of statements by appellee in closing
argument, directing us first to the following statement which was interrupted sua
sponte by the trial court. While appellant did not object to the first statement by
appellee, the comment is best evaluated in the context of the ensuing remarks,
objections, and motion for mistrial:
[PROSECUTOR]: * * * *. YOU ARE GOING TO GO IN THAT ROOM, AND I
WOULD SUBMIT TO YOU FOLKS THAT’S WHEN YOUR JOB REALLY
BEGINS, BECAUSE THE ULTIMATE TEST YOU HAVE, YOUR SERVICE AS
JURORS, WILL NOT BE THAT YOU SAT HERE AND LISTENED TO
WITNESSES AND LISTENED TO LAWYERS BABBLE FOR TWO AND A
HALF DAYS, THE TRUE TEST IS THE JURY SERVICE, IT WILL BE THE
QUALITY OF THE VERDICT THE JURY WILL RENDER. WHETHER THIS
VERDICT SPEAKS FOR JUSTICE, WHETHER THIS VERDICT—
THE COURT: MR. ROHRER, AS LONG AS THEIR VERDICT IS BASED
UPON THE FACTS AND THE LAW AS I WILL GIVE IT TO THEM IT IS A
PROPER VERDICT. NO ONE QUESTIONS THAT VERDICT. LET’S GET ON
TO SOMETHING ELSE.
Delaware County, Case No. 11CAA070065 11
[PROSECUTOR]: WHETHER YOUR VERDICT SPEAKS FOR THE TRUTH—
THE COURT: MR. ROHRER, I JUST TOLD YOU, IF THEIR VERDICT IS
GUILTY, IF THEIR VERDICT IS NOT GUILTY, AS LONG AS IT WAS BASED
UPON THE FACTS AND THE LAW OF THE OHIO (sic), IT SPEAKS FOR THE
TRUTH. YOU UNDERSTAND? SO THIS SUBJECT MATTER IS CLOSED,
NO MORE SIR.
{¶35} Later, appellee continued:
[PROSECUTOR]: THIS IS A YES OR A NO. IF SHE IS TELLING THE
TRUTH THIS IS RAPE. THERE ISN’T ANY MISTAKE IN THIS CASE, THERE
ISN’T ANY WELL, MAYBE THIS WAS CONSENSUAL. ONE WITNESS.
AGAIN, THE JUDGE WILL INSTRUCT YOU AND GO BY THE JUDGE’S
INSTRUCTIONS AND NOT BY WHAT WE SAY THE INSTRUCTIONS ARE,
THE INSTRUCTIONS ON ONE WITNESS, THE TESTIMONY, IF YOU
BELIEVE IT IS SUFFICIENT TO PROVE ANY FACT, AND THE STATE
WOULD SUBMIT TO YOU THAT SINCE THERE ARE ONLY TWO PEOPLE IN
THIS ROOM, AND YOU ONLY HEARD FROM ONE, [M.R.], WHO IS ONE—
{¶36} Appellant objected immediately and moved for a mistrial. The trial court
discussed the matter with the parties at sidebar, during which the following exchange
took place:
[PROSECUTOR]: I WOULD ALSO LIKE TO PROFFER THIS POINT TO THE
COURT, MR. HEALD, IN CLOSING ARGUMENT, HE WENT TO GREAT
LENGTHS ABOUT HOW HE CAN DISPROVE MAYBE A NEGATIVE, HE
VERY MUCH WENT INTO THE FACT THAT HIS CLIENT DIDN’T TESTIFY.
Delaware County, Case No. 11CAA070065 12
THE COURT: NO.
[DEFENSE TRIAL COUNSEL]: I DIDN’T SAY THAT.
THE COURT: HE DID NOT DO THAT.
{¶37} The trial court then excused the jury to further discuss the pending
motion for a mistrial. The trial court took issue with the prosecutor’s statements and
the prosecutor defended himself:
THE COURT: MR. ROHRER, I STOPPED YOU IN FINAL ARGUMENT, YOU
TRIED TO INFER TO THE JURY THAT ANY FINDING OF NOT GUILTY
WOULD BE AN IMPROPER VERDICT. THAT OBVIOUSLY IS IMPROPER.
IT’S IMPROPER TO COMMENT ON THE FACT THAT THE DEFENDANT DID
OR DID NOT TESTIFY.
* * * *.
THE COURT: YOU STRENUOUSLY OBJECT? ALL YOU WANT—IT’S KIND
OF OBVIOUS TO THE COURT SITTING HERE, THAT THIS IS WHAT IS
HAPPENING. THE COURT DOES NOT APPRECIATE THAT. THIS IS
SUPPOSE (sic) TO BE A FAIR COURTROOM. YOU ALL KNOW WHAT THE
RULES ARE. WE KNOW DEFINITELY WHAT THE RULES ARE. IN MY 30
YEARS I HAVE NEVER HEARD ANYONE INFER THAT A JUST VERDICT
WOULD NOT BE A VERDICT, NOT BE JUSTIFIED. I SAID I NEVER HEARD
THAT. YOU’RE PUSHING THE LIMITS, AND I DON’T APPRECIATE IT, SIR.
* * * *.
{¶38} Defense trial counsel argued a curative instruction would not be
sufficient. The trial court brought the jury back in and made the following instruction:
Delaware County, Case No. 11CAA070065 13
* * * *.
LADIES AND GENTLEMEN, I WANT TO READ YOU SOMETHING THAT IS
VERY FUNDAMENTAL IN OUR SYSTEM OF JURISPRUDENCE, JUST IN A
CRIMINAL CASE: IF (sic) IS NOT NECESSARY THAT THE DEFENDANT
TAKE THE WITNESS STAND IN HIS OWN DEFENSE. HE HAS A
CONSTITUTIONAL RIGHT NOT TO TESTIFY. THE FACT THAT THIS
DEFENDANT DID NOT TESTIFY MUST NOT AND CAN NOT (SIC) BE
CONSIDERED BY YOU FOR ANY PURPOSE WHATSOEVER, NOR MAY
YOU DRAW ANY INFERENCE UPON THE FACT THAT HE DID NOT
TESTIFY. IT IS IMPROPER FOR COUNSEL TO COMMENT ON THIS
CONSTITUTIONAL RIGHT.
{¶39} The comments that first provoked a reprimand by the trial court, in terms
of the jury returning a verdict “for justice,” could motivate the jury to weigh the case
upon standards other than the evidence presented and the law. In the context of the
entire argument, however, and due largely to the fact that the trial court shut down the
argument almost immediately, we find the comments did not prejudice the ultimate
outcome of the case, and the trial court’s instruction was sufficient to cure any
misdirection the jury may have inferred from the prosecutor’s comments.
{¶40} More troubling is appellant’s second example of prosecutorial
overreaching, an unambiguous comment upon appellant’s decision not to testify.
{¶41} The Ohio Supreme Court has noted comments by prosecutors on
defendants’ post-arrest silence or decision not to testify are looked upon with “extreme
disfavor” because they raise an inference of guilt and essentially penalize the
Delaware County, Case No. 11CAA070065 14
defendant for exercising a constitutional right. State v. Thompson, 33 Ohio St.3d 1, 4,
514 N.E.2d 407 (1987). Where such comments “work to the material prejudice of the
defendant, they will not be tolerated.” Id., citing Wainwright v. Greenfield, 474 U.S.
284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1976); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.
2240, 46 L.Ed.2d 91 (1976).
{¶42} Even where such comments are improper, however, the Court noted “the
defendant’s conviction may be affirmed, provided that the comments regarding the
defendant’s silence are found to be harmless beyond a reasonable doubt.”
Thompson, supra, 33 Ohio St.3d at 4, citing Chapman v. California, 386 U.S. 18, 87
S.Ct.824, 17 L.Ed.2d 705 (1967); United States v. Hasting, 461 U.S. 499, 103 S.Ct.
1974, 76 L.Ed.2d 96 (1983). The question is whether it is clear beyond a reasonable
doubt that the jury would have found the appellant guilty absent the prosecutor’s
comments. Id., citing State v. Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984).
{¶43} In the instant case, we find the comments, while improper, were
harmless beyond a reasonable doubt, thanks largely to the prompt objection and
curative instruction by the trial court. Despite the prosecutor’s comments, we find,
beyond a reasonable doubt, the appellant would still have been found guilty of the
same charges. As addressed in our discussion of the first assignment of error, the
evidence presented was sufficient for the jury to find appellant guilty.
{¶44} Viewing the statements in the context of the entire trial, combined with
the immediate objections and curative instruction, with the totality of evidence
supporting a finding of appellant’s guilt, we cannot find appellant’s rights were
substantially prejudiced and he did not receive a fair trial. See, State v. Freeman, 5th
Delaware County, Case No. 11CAA070065 15
Dist. No. 2006CA00388, 2007-Ohio-6270; State v. Dunn, 5th Dist. No. 2008-CA-
00137, 2009-Ohio-1688; State v. Graber, 5th Dist. No. 2002CA00014, 2003-Ohio-137.
{¶45} Appellant has not demonstrated that but for the improper comments, the
outcome of the trial would have been different, or that appellant was denied due
process of law. Accordingly, appellant’s second and third assignments of error are
overruled.
IV.
{¶46} In his fourth assignment of error, appellant argues all three rape
convictions should have merged for purposes of sentencing.
{¶47} Appellant was convicted of three separate counts of rape for three
distinct acts of sexual assault. However, the trial court merged two counts of rape
(Counts Two [digital/anal] and Three [penile/vaginal]) and merged the kidnapping
count with all three rape counts.
{¶48} In its sentencing entry, the trial court stated: “…the Court finds based
upon the testimony that Count One the act of fellatio is a separate and distinct act to
the criminal charge in Count Two and Count Three but the Court finds that the
charges of Rape charged in Count Two and Three do merge and the Defendant may
be sentenced on either Count Two or Count Three but not on both. The State then
elected to proceed with sentencing on Count Two not Count Three.”
{¶49} In State v. Johnson, the Ohio Supreme Court attempted to clarify
whether offenses are subject to merger. 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061. Pursuant to Johnson, “[i]f the multiple offenses can be committed by the
same conduct, then the court must determine whether the offenses were committed by
Delaware County, Case No. 11CAA070065 16
the same conduct, i.e., ‘a single act, committed with a single state of mind.’ “ Id. at ¶
49, quoting State v. Brown, 119 Ohio St .3d 447, 2008–Ohio–4569, ¶ 50 (Lanzinger,
J., concurring in judgment only). “If the answer to both questions is yes, then the
offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50. The
offenses will not merge, however, if “the commission of one offense will never result in
the commission of the other, or if the offenses are committed separately, or if the
defendant has separate animus for each offense.” (Emphasis sic.) Id. at ¶ 51.
{¶50} In this case, appellant was convicted of multiple counts of rape for
multiple, differentiated acts of forcible penetration. Multiple rape offenses do not
merge when a defendant commits them between “intervening acts.” State v. Jones, 78
Ohio St.3d 12, 14 , 676 N.E.2d 80 (1997). Merger does not apply because the
defendant has a separate specific intent to commit each rape, and the victim suffers a
separate risk of harm from each rape. State v. Davic, 10th Dist. No. 11AP-555, 2012-
Ohio-952, ¶ 16, appeal not allowed, 132 Ohio St.3d 1482, 2012-Ohio-3334, 971
N.E.2d 960, citing State v. Hayes, 10th Dist. No. 93AP–868 (Mar. 1, 1994).
{¶51} As in Davic, in the instant case “an intervening act separated each of
appellant's multiple rapes” because he alternated between different types of
penetration. “Each rape was, therefore, a separate offense being committed with a
separate specific intent and causing separate harm to the victim.” Id. See also, State
v. Barnes, 68 Ohio St.2d 13, 427 N.E.2d 517 (1981)(entry into two bodily orifices
constitute two separate rape offenses).
{¶52} The trial court did not err in sentencing appellant on two separate counts
of rape, and appellant’s fourth assignment of error is overruled.
Delaware County, Case No. 11CAA070065 17
V.
{¶53} In his fifth assignment of error, appellant contends the trial court should
not have permitted appellee to play only a portion of the tape of appellant’s jail
telephone call and should have played the balance of the recording.
{¶54} At trial, appellee presented evidence in the form of a CD of a telephone
call of appellant from jail to his mother. Over objection appellee played a portion of
this CD in which appellant instructed his mother to “get any dirt on [M.R.] that you
can.” Appellant argued the entire conversation should be played but appellee
responded doing so would result in the admission of evidence otherwise inadmissible.
The trial court listened to recording of the entire conversation outside of the presence
of the jury, overruled appellant’s objection, and instructed the jury “* * *the telephone
conversation between the defendant and his mother * * *consists of 17.31 minutes.
The part you heard is that part only, this part that the court has ruled is admissible.* * *
*”
{¶55} Appellant cites Evid.R. 106, which provides: “When a writing or recorded
statement or part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or recorded statement
which is otherwise admissible and which ought in fairness to be considered
contemporaneously with it.” The rule has been described as “merely a rule that
concerns the timing of evidence that is otherwise admissible” which codifies the
common-law “rule of completeness.” State v. Matthews, 2nd Dist. No. 24233, 2011-
Ohio-5066, ¶ 32, citing Beech Aircraft Corp. v. Rainey (1988), 488 U.S. 153, 172, 109
S.Ct. 439, 102 L.Ed.2d 445 and Staff Notes to Evid.R. 106. Under this rule, an
Delaware County, Case No. 11CAA070065 18
adverse party may introduce any other document or part thereof “when one party has
made use of a portion of a document, such that misunderstanding or distortion can be
averted only through presentation of another portion.” Beech Aircraft, at 172, citing 7
Wigmore, Evidence (Chadbourn Rev.1978) 653, Section 2113.
{¶56} It is not evident from the record what possible misunderstanding or
distortion appellant complains of, and he argues to us only that the jury was “not
allowed to hear or see the situation under which the portion of the conversation took
place.” Appellant’s Brief, p. 17. Appellant fails to explain how he suffered any
prejudice from the trial court’s decision and we find no error.
{¶57} Appellant’s fifth assignment of error is therefore overruled.
VI.
{¶58} In his sixth assignment of error, appellant argues the trial court erred in
disallowing defense trial counsel to elicit from a police officer appellant’s full statement
to him; including portions appellant claims were helpful to his defense.
{¶59} First, we note appellant raises this alleged error without specifying what
“exculpatory statement” the court should have allowed defense trial counsel to elicit.
The witness had already blurted out that appellant claimed the sexual conduct was
consensual, and there is no relevant proffer on page 336 as argued in appellant’s
brief.
{¶60} The trial court disallowed further admission of appellant’s statement to
another witness because such evidence is hearsay which falls within no exception to
Delaware County, Case No. 11CAA070065 19
the general rule against admissibility. See, State v. Watkins, 2 Ohio App.3d 402, 442
N.E.2d 478 (10th Dist.1981). It is well-established that self-serving statements by
defendants, offered by the defense when a defendant does not testify, are not
admissible. State v. Gatewood, 15 Ohio App.3d 14, 16, 472 N.E.2d 63 (1st
Dist.1984). “If appellant wanted the exculpatory material brought before the jury he
could not do so through the mouth of another, thereby obviating the possibility of
cross-examination.” Id.
{¶61} The trial court did not err in excluding appellant’s full statement to the
investigating officer, and appellant’s sixth assignment of error is therefore overruled.
VII.
{¶62} In his seventh assignment of error, appellant contends the trial court
erred in not permitting appellant “to elicit testimony relative to consent.”
{¶63} Appellant’s specific complaint in this assignment of error goes to his
insistence that M.R. told an investigator she took her pants off prior to the sexual
assault. Defense trial counsel asked the investigator whether M.R. told him she took
her pants off, appellee objected, and the trial court sustained the objection.
{¶64} Upon cross-examination, appellant asked M.R. whether she told police
she took her own pants off, and she responded that she didn’t remember. Trial
counsel wanted to then ask the officer on the stand whether M.R. did in fact tell him
she took her pants off.
{¶65} The admission or exclusion of evidence is a matter left to the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
Delaware County, Case No. 11CAA070065 20
(1987). Absent an abuse of discretion resulting in material prejudice to the defendant,
a reviewing court should be reluctant to interfere with a trial court’s decision in this
regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). Our task is
to look at the totality of the circumstances and determine whether the trial court acted
unreasonably, arbitrarily, or unconscionably in allowing or excluding the disputed
evidence. State v. Rogers, 5th Dist. No. 07 CA 106, 2008-Ohio-6630, ¶ 17, citing
State v. Oman, 5th Dist. No. 1999CA00027, 2000 WL 222190 (Feb.14, 2000).
{¶66} The proffered testimony of the investigator would have violated Evid.R.
608 as extrinsic evidence of a specific instance of a witness’ conduct: appellant had
inquired of M.R. on cross-examination about the disputed statement, but was then
“stuck” with her answer and could not offer extrinsic evidence through another
witness.
{¶67} Evid.R. 608(B) states:
Specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness's character for truthfulness, other than conviction of
crime as provided in Evid.R. 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if clearly probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness's character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or untruthfulness
of another witness as to which character the witness being cross-examined has
testified.
Delaware County, Case No. 11CAA070065 21
{¶68} Upon review we find the trial court’s decision to disallow the testimony
was not unreasonable, arbitrary, or unconscionable.
{¶69} Appellant’s seventh assignment of error is overruled.
{¶70} Having overruled appellant’s seven assignments of error, the judgment
of the Delaware County Court of Common Pleas is hereby affirmed.
By: Delaney, P.J.
Wise, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
PAD:kgb
[Cite as State v. Cuthbert, 2012-Ohio-4472.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DEWITT A. CUTHBERT :
:
: Case No. 11CAA070065
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
State v. Cuthbert
Combined Opinion