[Cite as State v. Mathes, 2013-Ohio-1732.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2012-03-028
Plaintiff-Appellee, :
OPINION
: 4/29/2013
- vs -
:
JAMES DAVID MATHES, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2011 CR 0761
D. Vincent Faris, Clermont County Prosecuting Attorney, David H. Hoffmann, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Paul Croushore, P.O. Box 75170, Cincinnati, Ohio 45275, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, James David Mathes, appeals his conviction in the
Clermont County Court of Common Pleas for rape. For the reasons set forth below, we
affirm the conviction.
{¶ 2} On August 31, 2011, Mathes was indicted for one count each of rape in
violation of R.C. 2907.02(A)(2), unlawful restraint in violation of R.C. 2905.03(A), kidnapping,
in violation of R.C. 2905.01(A)(4), and tampering with evidence in violation R.C.
Clermont CA2012-03-028
2921.12(A)(1). These charges arose out of an incident that occurred on June 4, 2010. On
that day, Mathes had been drinking beer since about 1:00 P.M. At about 7:00 P.M., A.C., a
neighbor, came over to Mathes' house. A.C. was 14 years old at the time and was friends
with Mathes' niece, Marisa, who lived with Mathes. A.C. had gone to the house to retrieve
some clothes that Marisa had borrowed. Marisa was not home at the time, but Mathes was
home. At trial, A.C. testified that she went into the home and into Marisa's room to get her
clothes, and as she was walking to the front door to leave, Mathes grabbed her by the arm
and pinned her down on the couch. A.C. testified that she protested, but Mathes pushed her
down with his left arm and then with his right hand reached up her shorts and digitally
penetrated her vagina. A.C. explained that by her estimation Mathes held her for three to
five minutes. She eventually broke free from his grasp and ran home crying.
{¶ 3} Later that night, A.C. told her father that Mathes "touch[ed] her." A.C.'s father
called the Union Township Police Department who came to the home and obtained a written
statement from A.C. regarding the incident. Detective Keith Puckett then conducted a
videotaped interviewed with A.C. and asked her to write a second statement. After speaking
with A.C., Detective Puckett and a few other officers went to Mathes' home to speak to him
about the allegations. Mathes agreed to go to the police station and be interviewed. During
the interview, which was also recorded, Mathes denied having any contact with A.C. and
agreed to provide DNA samples to the police. Detective Puckett scraped under Mathes'
fingernails with wooden scrapers and collected nail clippings from Mathes for DNA analysis.
Emily Draper, a chemist with the Ohio Bureau of Criminal Investigation, tested these samples
and testified at trial that she found A.C.'s DNA on a swab from the scraper of Mathes' right
hand fingernails and on the left hand fingernail scraper. Furthermore, she stated that the
DNA on his fingernails produced more of A.C.'s DNA than Mathes' own DNA. She testified
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that this strength of a profile was consistent with digital penetration of a mouth, vagina or
anus.
{¶ 4} Mathes testified at trial on his own behalf. He maintained that he had no
contact with A.C. and suggested that her DNA may have gotten on his fingernails due to his
handling of her laundry. The jury ultimately found Mathes guilty of rape, kidnapping, and
unlawful restraint, but not guilty of tampering with evidence. The trial court found that the
three counts represented allied offenses of similar import, and the state elected to proceed
on Count 1, rape, for sentencing. The trial court then designated Mathes as a Tier III Sex
Offender/Child Victim Registrant and imposed a prison sentence of five years. Mathes timely
appeals his conviction raising two assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S REQUEST TO
PLAY THE VIDEO OF THE MINOR WITNESS A.C.'S INTERVIEW WITH THE POLICE TO
SHOW HER INCONSISTENT STATEMENTS AND ODD DEMEANOR, AND IN FAILING TO
MAKE A PROPER RECORD OF THE JURY QUESTION AS TO HER WRITTEN
STATEMENTS.
{¶ 7} In his first assignment of error, Mathes argues the trial court erred in failing to
admit into evidence three prior inconsistent statements of A.C. Mathes asserts that the trial
court's decision not to admit A.C.'s prior inconsistent statements deprived him of the
opportunity to effectively confront the witness with these inconsistencies.
{¶ 8} In general, the "trial court's decision to admit or exclude evidence will not be
reversed by a reviewing court absent an abuse of discretion." State v. Jackson, 12th Dist.
No. CA2011-01-001, 2011-Ohio-5593, ¶ 16. An abuse of discretion implies that the court's
decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or
judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
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{¶ 9} Mathes argues that A.C.'s two written statements and the videotaped interview
should have been admitted into evidence, as these three statements were admissible
pursuant to Evid.R. 613(B). Evid.R. 613(B) states, in part, that extrinsic evidence of a prior
inconsistent statement by a witness is admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of
impeaching the witness, the witness is afforded a prior
opportunity to explain or deny the statement and the opposite
party is afforded an opportunity to interrogate the witness on the
statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the
action other than the credibility of a witness
(b) A fact that may be shown by extrinsic evidence under Evid.R.
608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under the
common law of impeachment if not in conflict with the Rules of
Evidence.
{¶ 10} Thus, under Evid.R. 613(B), a party may introduce extrinsic evidence of a prior
inconsistent statement to impeach the witness's credibility. In order to introduce the prior
inconsistent statement into evidence, proper foundation must be laid. State v. Lewis, 12th
Dist. CA2010-08-017, 2011-Ohio-415, ¶ 30, citing State v. Mack, 73 Ohio St.3d 502, 514-515
(1995). A proper foundation is laid where the witness denies making the prior statement.
State v. Hartman, 12th Dist. No. CA98-06-040, 1999 WL 188145, *6 (April 5, 1999), citing
State v. Colvin, 12th Dist. No. CA94-04-092, 1995 WL 103235, *4 (March 13, 1995).
However, if a witness admits to making the prior inconsistent statement then extrinsic
evidence is not admissible. Id.; State v. Kulasa, 10th Dist. 11AP-826, 2012-Ohio-6021, ¶ 12.
{¶ 11} Prior to being presented with the two written statements, A.C. admitted during
direct examination that she initially told the police that the incident occurred outside on a
picnic table but later changed her story and said that it actually occurred inside the home on
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a couch. A.C. explained that, "when I was writing everything down, I was scared, and I was
nervous, so I just kind of wrote really, really fast to get it over with." During cross-examination
of A.C., Mathes presented A.C. with copies of the two statements. Mathes thoroughly cross-
examined A.C. regarding inconsistent facts between each statement, such as her purpose for
going over to the Mathes' residence, the location where the assault occurred, and whether
Mathes grabbed her from behind or pulled her arms up. When confronted with each of these
inconsistencies, A.C admitted that the statements were inconsistent but explained that she
was "confused" and "scared" that night. As to the videotaped interview, initially, A.C. testified
that she could not remember what she told Detective Puckett during the interview. However,
later during cross-examination, A.C. admitted to telling Detective Puckett during this interview
that she was not "being completely truthful" as the incident occurred in the house and not in
the backyard as she originally told him. A.C. explained that the reason she said it occurred in
the backyard was because she "was scared to say that I went into the house, because I
thought it would make me look bad." A.C. further testified that although there were
differences in the details of the assault in her trial testimony and those contained in her
statements, the way in which she testified at trial was what "really happened." Based on this
testimony, A.C. admitted to making the prior inconsistent statements and accordingly the two
written statements and the videotaped interview were not admissible under Evid.R. 613(B).
{¶ 12} Mathes asserts that the videotaped interview should at least been played for
the jury because it showed her "odd demeanor" and "contrary behavior." After a review of
the record, it appears that defense counsel failed to specifically question A.C. as to her
conduct during the interview, but rather focused on her inconsistent statements.
Furthermore, defense counsel could have questioned Detective Puckett as to A.C.'s
demeanor during the interview to establish her inconsistent conduct. However, defense
counsel failed to ask about this and focused on A.C.'s inconsistencies in her statements. As
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detailed above, because A.C. admitted to making inconsistent statements, the written
statements and the videotaped interview were inadmissible under Evid.R. 613(B).
Accordingly, we reject Mathes' argument and find that the trial court did not abuse its
discretion in excluding A.C.'s three prior statements.
{¶ 13} Mathes also argues in his first assignment of error that the trial court erred in
failing to provide the jury with copies of A.C.'s written statements when requested by the jury.
Generally, if, "during the course of its deliberations, a jury requests further instruction, or
clarification of instructions previously given, a trial court has discretion to determine its
response to that request." State v. Baker, 12th Dist. No. CA2007-09-018, 2008-Ohio-5544, ¶
32, citing State v. Carter, 72 Ohio St.3d 545, 553 (1995). Thus, in response to a question
from the jury, it is within the sound discretion of the trial court to provide supplemental
instructions or to refer the jury to instructions already provided. Id.
{¶ 14} We first note that trial counsel waived placing the proceedings on the record as
to the question posed by the jury. However, appellate counsel properly filed a request
pursuant to App.R. 9(C) to supplement the record with a statement of evidence. See State v.
Hileman, 12th Dist. No. CA96-10-219, 1998 WL 161386, *1 (Apr. 6, 1998). The statement of
evidence does not indicate that Mathes objected to the question or the answer provided to
the jury. As there was no objection at trial, Mathes has waived all but plain error. Crim.R. 52.
An alleged error is plain error only if the error is obvious and but for the error, the outcome of
the trial clearly would have been different. State v. Blankenburg, 197 Ohio App.3d 201,
2012-Ohio-1289, ¶ 53 (12th Dist.), citing State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,
¶ 108. A finding of harmless error, however, is appropriate where there is "overwhelming
evidence of guilt" or "some other indicia that the error did not contribute to the conviction."
State v. Sims, 12th Dist. No. CA2007-11-300, 2009-Ohio-550, ¶ 34, quoting State v.
Ferguson, 5 Ohio St.3d 160, (1983), fn. 5. According to the statement of evidence, during
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jury deliberations the jury asked: "Can we have [A.C.'s written statements[?]" Defense
counsel agreed to the court's answer that "the evidence before [the jury] is what has been
admitted, and [the court] cannot produce evidence which is not admitted."
{¶ 15} After reviewing the record, we cannot say that the trial court's failure to provide
the jury with A.C.'s written statements represented error let alone plain error. As discussed
above, the trial court properly denied admission of A.C.'s statements as extrinsic evidence
pursuant to Evid.R. 613(B). Accordingly, as the statements were not admitted into evidence,
the jury was not entitled to view them during deliberations. See R.C. 2945.35; State v.
Graven, 52 Ohio St.2d 112, 113 (1977) (finding that evidence which has been ruled
inadmissible is excluded from the jury room.).
{¶ 16} Mathes' first assignment of error is overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A MISTRIAL AND
DISCHARGE THE JURY WHERE THE OFFICER TESTIFIED THAT MATHES REQUESTED
AN ATTORNEY.
{¶ 19} In his second assignment of error, Mathes asserts the jury was improperly
permitted to hear testimony that he "requested an attorney." Essentially, Mathes contends
that his request for counsel was used as substantive evidence of guilt which violated his due
process rights requiring the trial court to grant a mistrial.
{¶ 20} The state played a video of Mathes' interview during Detective Puckett's
testimony. During this interview, Mathes asked Detective Puckett, "[s]hould I get a lawyer."
Once the videotape concluded, Detective Puckett explained the process he used to obtain
nail clippings from Mathes to test for DNA. Detective Puckett explained that he started
opening the package of nail clippers in order to obtain the clippings but "then [Mathes]
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requested an attorney." So he placed the clippers back into their packages until he received
a search warrant for the clippings. It is this testimony that Mathes claims prejudiced him.
{¶ 21} We first note that there was no objection to Detective Puckett's comment or to
the video. In fact during a side bar conference, defense counsel specifically agreed to "play
the whole" video. Accordingly, as there was no objection, Mathes has waived all but plain
error. Crim.R. 52(B).
{¶ 22} After a review of the record, we find that even if it was error for Detective
Puckett to testify regarding Mathes' request for an attorney, such testimony did not contribute
to Mathes' conviction. Here, the state presented overwhelming evidence of Mathes' guilt.
The victim provided a detailed description as to the manner in which Mathes sexually
assaulted her. Although there were some differences in the details of the assault, A.C.
consistently stated that Mathes digitally penetrated her. The DNA evidence was
overwhelming and corroborated A.C.'s account of her encounter with Mathes. The state
presented evidence that A.C.'s DNA was found on the swab from Mathes' left hand fingernail
scraper and the swab from the right hand fingernail scraper. In fact, Draper testified that
"A.C. was the major source of DNA here" such that that there was more DNA "from [A.C.]
than from Mr. Mathes himself." Draper further testified that the amount of A.C.'s DNA found
on the nail scrapings was consistent with "something like a vaginal or anal penetration or
even oral penetration" and not casual contact. Accordingly, any error the trial court made in
allowing testimony regarding Mathes' request for counsel was, at best, harmless error.
{¶ 23} Moreover, we note that during defense counsel's re-direct examination of
Mathes, counsel specifically questioned Mathes regarding his discussion with Detective
Puckett about obtaining a lawyer. "Appellant cannot, on appeal, complain that the trial court
erred in permitting the admission of prejudicial testimony which he elicited from the witness.
The rule of invited error prohibits a party who induces error in the trial court from taking
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advantage of such error on appeal." State v. Williams, 12th Dist. No. CA2006-03-067, 2007-
Ohio-2699, ¶ 27.
{¶ 24} As a result, we find appellant has not shown that the outcome of the trial would
have been different without the admission of the statements at issue. Mathes' second and
final assignment of error is therefore overruled.
{¶ 25} Judgment affirmed.
HENDRICKSON, P.J. and PIPER, J., concur.
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