State v. Fast

[Cite as State v. Fast, 2021-Ohio-2548.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2019-A-0089

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

ROBERT LEE FAST,
Trial Court No. 2018 CR 00267
Defendant-Appellant.

OPINION

Decided: July 26, 2021
Judgment: Affirmed.

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

William P. Bobulsky, William P. Bobulsky Co., LPA, 1612 East Prospect Road,
Ashtabula, OH 44004 (For Defendant-Appellant).

MARY JANE TRAPP, P.J.

{¶1} Appellant, Robert Lee Fast (“Mr. Fast”), appeals from the judgment of the

Ashtabula County Court of Common Pleas sentencing him to an aggregate prison term

of 40 to 100 years following a jury trial in which he was found guilty of four counts of rape.

The offenses occurred in 1990 and 1991 and involved Mr. Fast’s niece when she was a

child.

{¶2} Mr. Fast presents four assignments of error, contending that the trial court

erred by (1) denying his motion to dismiss the indictment based on the statute of
limitations; (2) granting the state’s motion in limine and restricting his cross-examination

of the victim in relation to her alleged drug use and addiction; and (3) imposing sentences

pursuant to an improperly amended indictment. Mr. Fast also contends that the state

presented insufficient evidence to sustain a conviction on count 4 of the indictment and

that the jury’s verdicts were against the manifest weight of the evidence.

{¶3} After a careful review of the record and pertinent law, we find as follows:

{¶4} (1) The state’s prosecution was not barred by the statute of limitations. The

statute of limitations was tolled until the victim turned age 18 and was increased to 20

years by subsequent legislation.

{¶5} (2) The trial court did not abuse its discretion in granting the state’s motion

in limine. The trial court’s ruling is supported by a sound reasoning process and is

consistent with the legal authority regarding the admissibility of evidence concerning a

witness’s drug use. In addition, the trial court’s ruling did not prohibit Mr. Fast from cross-

examining the victim about drug use or addiction related in time or place to any of the

charged offenses.

{¶6} (3) The state presented sufficient evidence for a reasonable jury to

conclude that the rape offense charged in count 4 occurred in 1991. The discrepancy

between the victim’s trial testimony and her written statement to the police involved the

weight of the evidence rather than its sufficiency.

{¶7} (4) After reviewing the entire record and weighing the evidence and all

reasonable inferences, we find that the jury did not clearly lose its way or create a manifest

miscarriage of justice. Given the totality of the evidence, we cannot say that

inconsistencies or conflicting evidence rendered the victim’s testimony so incredible as to

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be unbelievable.

{¶8} (5) Mr. Fast has not established that his sentence is clearly and

convincingly contrary to law. Crim.R. 7(D) permitted the trial court to amend the

indictment because it did not change either the name or identity of the charged offenses.

The trial court’s amendment was, in essence, a correction of a clerical error.

{¶9} Thus, we affirm the judgment of the Ashtabula County Court of Common

Pleas.

Substantive and Procedural History

{¶10} The victim, E.L., was born on March 24, 1981. Mr. Fast is her mother’s

brother, i.e., her uncle. E.L. alleged that Mr. Fast sexually assaulted her on multiple

occasions as a child.

The Alleged Offenses

{¶11} According to E.L., Mr. Fast first sexually assaulted her during the summer

of 1990 when she was nine years old. At the time, E.L. resided in Roaming Shores, Ohio,

with her mother; her sister, A.G., who is five years older than her; and her stepfather.

According to A.G., she and E.L. would go to the First Baptist Church in Jefferson on

Wednesdays for dinner and activities. A.G. also signed them up for vacation bible school

held at the church during the summer.

{¶12} Mr. Fast resided in a small, second-floor apartment in Jefferson with his

long-time girlfriend, Deborah Harden (“Ms. Harden”). E.L. stayed at Mr. Fast’s apartment

during one week in the summer of 1990 to attend vacation bible school, and she slept on

his living room couch.

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 {¶13} One evening, E.L. was lying on the couch watching television, and Mr. Fast

was sitting on a chair. Ms. Harden was sleeping in the bedroom with the door closed.

Mr. Fast turned the station to pornography, where a man and a woman were engaging in

intercourse. Mr. Fast then exposed himself, and he and E.L. engaged in sexual activity

involving the touching of Mr. Fast’s genitals and fellatio. Afterward, Mr. Fast told E.L. to

lie on the couch and go to bed. E.L. buried her head in the pillow and tried to go to sleep.

{¶14} According to E.L., Mr. Fast sexually assaulted her again during the same

week. E.L. returned to Mr. Fast’s home from vacation bible school. As she was walking

up the driveway, Mr. Fast was waxing his car. She went into the kitchen to get something

to drink. Mr. Fast followed her, gave her a Lynchburg Lemonade, and told her to drink it.

E.L. drank some of the beverage. Mr. Fast led E.L. into the bedroom, where they engaged

in sexual activity involving digital penetration, vaginal intercourse, and fellatio. Afterward,

Mr. Fast told E.L. that she would never tell anyone because they would not believe her

and that she was “just a little liar.”

{¶15} Mr. Fast denied any sexual activity with E.L. and stated that she never

stayed at his Jefferson apartment. According to Mr. Fast, the apartment was too small

for guests. He further denied any knowledge of the vacation bible school at the First

Baptist Church or that E.L. attended it.

{¶16} Mr. Fast’s long-time partner, Ms. Harden, also denied that E.L. ever spent

the night at their Jefferson apartment. They occasionally had friends come over to play

cards but did not have overnight guests because there was no place for them to stay.

Ms. Harden was aware of the existence of the vacation bible school from the sign on the

church but denied that E.L. or A.G. ever stayed at their Jefferson apartment to attend it.

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 {¶17} According to E.L., Mr. Fast also sexually assaulted her during the summer

of 1991 when she was ten years old. E.L.’s mother worked during the day, so A.G.

watched her at their house in Roaming Shores. E.L. rode her bike to go swimming with

her neighbors at a pool located a few blocks away. Mr. Fast showed up and played in

the pool with E.L. and her friends. He was wearing a bright blue Speedo-type bathing

suit.

{¶18} When it was time to leave, Mr. Fast said he would take E.L. home. He put

her bike in his car, which was a maroon Camaro. Instead of driving E.L. home, Mr. Fast

drove in the opposite direction to an oil well drive. He told E.L. to get out of the car despite

her concerns about getting home late. Mr. Fast had E.L. remove her bathing suit and

subsequently engaged in anal intercourse with her. Afterward, Mr. Fast told E.L to put

her bathing suit back on and said no one would believe her if she told anyone because

she was “just a little liar.”

{¶19} He told E.L. to get back in the car and drove her to her house. A.G. was

waiting at the end of the driveway because E.L. was late. When E.L. got out of the car,

she could barely walk, and A.G. asked her what happened. Mr. Fast told her that E.L. fell

off her bike.

{¶20} Mr. Fast denied any sexual activity with E.L. on that day. According to Mr.

Fast, A.G. had asked him to pick E.L. up at the swimming pool because her bike had

broken down. Mr. Fast drove to the pool and swam for a short period of time. He was

wearing a white and blue Speedo under his shorts. Afterward, he put E.L.’s bike in the

back of his 1988 Camaro. E.L. had said something about wrecking it, and he observed

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a flat tire. He drove E.L. straight to her house, put her bike in the shed, and went home.

Months later, he patched the tire during a family get-together.

{¶21} E.L. never reported the sexual assaults until she became an adult. She told

her future wife at age 21 and A.G. at age 22. After E.L. told A.G. that she had been

sexually abused, A.G. did not speak to her for a year.

{¶22} In September 2017, E.L., accompanied by A.G., her wife, and her mother,

confronted Mr. Fast at his and Ms. Harden’s residence in Jefferson. E.L. told Mr. Fast, “I

am done keeping your secrets, you are dead to me.” Mr. Fast responded by asking what

E.L. wanted from him. E.L. told him, “You’re dead to me,” walked away, and got into her

vehicle. According to Ms. Harden, Mr. Fast was stunned and sat on the ground “with his

mouth dropped open.”

Police Report and Investigation

{¶23} In December 2017, E.L., accompanied by her mother, went to the Jefferson

Police Department to file charges against Mr. Fast. She spoke with Sergeant Aaron

Dumperth (“Sgt. Dumperth”), who asked her to write out a statement. E.L. wrote for

several hours that morning but did not finish. She came back the next day and wrote for

several more hours. Sgt. Dumperth described E.L. as being emotionally distraught at

some points.

{¶24} For the alleged offenses occurring in Jefferson, the year 1990 appears in

parentheses. For the alleged offense occurring in Roaming Shores, E.L. identified the

year as 1992.

{¶25} After E.L. completed her statement, Sgt. Dumperth spoke with personnel at

the First Baptist Church. He obtained bible school program pamphlets from 1989 and

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1990. A.G.’s name appears in the 1989 program; E.L.’s name does not appear in either

program.

{¶26} Sgt. Dumperth also interviewed A.G. via telephone and E.L.’s wife. He did

not attempt to collect any physical evidence for DNA testing due to the lengthy period of

time between the alleged offenses and E.L.’s reporting of them.

Indictment

{¶27} In April 2018, the Ashtabula County Grand Jury indicted Mr. Fast on six

counts of rape involving a person less than 13 years of age in violation of R.C.

2907.02(A)(1)(b) (counts 1 through 6) and two counts of rape involving submission by

force or threat of force in violation of R.C. 2907.02(A)(2) (counts 7 and 8). The indictment

identified counts 1 through 6 and 8 as being felonies of the first degree and count 7 as

being an aggravated felony of the first degree.

{¶28} The indictment alleged the following time periods and locations for each of

the charged offenses:

{¶29} Counts 1, 2, and 3: On or between March 24 and December 31 of 1990 in

Jefferson.

{¶30} Count 4: On or between March 24 and December 31 of 1991 in Roaming

Shores.

{¶31} Counts 5 and 6: On or between June 1 and September 1 of 1992 in

Roaming Shores and in Rome, New Lyme, and Lenox Townships.

{¶32} Count 7: On or between June 1 and August 30 of 1996 in Lenox, New

Lyme, and Dorset Townships and in Roaming Shores. Over Mr. Fast’s objection, the trial

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court subsequently permitted the state to amend this alleged time period to begin on June

1, 1994.

{¶33} Count 8: On or between May 1 and May 31 of 2000 in the states of Ohio

and West Virginia.

{¶34} Mr. Fast appeared through counsel and pleaded not guilty to the charges.

Pretrial Motions

{¶35} The parties filed several pretrial motions. Relevant to this appeal, the state

filed a “motion in limine to prohibit irrelevant evidence or testimony.” According to the

state, E.L. disclosed to investigators that, on some instances, Mr. Fast gave her alcohol

and marijuana prior to sexually abusing her, which the state conceded was relevant

evidence. However, the state contended that evidence regarding E.L.’s alcohol or drug

use “unrelated in time or place to the offenses charged” was irrelevant and prejudicial

and, therefore, inadmissible. The state sought an order prohibiting the defense from

questioning E.L. or presenting evidence or testimony regarding her alcohol or drug use

“unrelated in time or place to the offenses charged.”

{¶36} Mr. Fast opposed the state’s motion, contending that evidence relating to

E.L.’s “drug addiction and other problems during the period of time referenced after the

dates set forth in the Indictment” bore directly upon E.L.’s credibility and her ability to

accurately recall evidence that the state sought to introduce.

{¶37} Mr. Fast filed a motion to dismiss the indictment based on the six-year

statute of limitations set forth in the version of R.C. 2901.13 in effect at the time of the

alleged offenses. He later filed a supplement to his motion. The state opposed Mr. Fast’s

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motion to dismiss, contending that the statute of limitations was tolled until E.L. turned 18

and that it was subsequently increased to 20 years.

{¶38} The trial court held a hearing on pending pretrial motions. The trial court

heard testimony from E.L. in relation to Mr. Fast’s motion to dismiss. She testified that

she was born on March 24, 1981, and turned 18 in 1999; she first disclosed the alleged

sexual assaults to her future wife and her sister when she was over the age of 21; and

she had had not disclosed the alleged sexual assaults prior to turning 18. The trial court

found that the statute of limitations did not begin to run until March 24, 1999, and overruled

Mr. Fast’s motion to dismiss.

{¶39} The defense presented argument in opposition to the state’s motion in

limine. According to the defense, E.L. indicated in her statement to police that she was

a “drug addict” and was using marijuana during the time period alleged in count 8, i.e.,

May 2000. The defense contended that this evidence was directly and materially related

to count 8. In addition, E.L.’s ongoing drug use and addiction was relevant to her ability

to recall events that allegedly occurred 29 years prior. Following the defense’s argument,

the trial court stated that it would grant the state’s motion in limine.

{¶40} The trial court subsequently filed a judgment entry overruling Mr. Fast’s

motion to dismiss, finding that the statute of limitations was increased to 20 years; it did

not begin to run until E.L. turned 18; and the indictment was filed before the statute of

limitations had expired.

{¶41} The trial court filed a separate judgment entry granting the state’s motion in

limine without setting forth its reasoning.

{¶42} The state filed a motion to dismiss count 8, which the trial court granted.

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 Jury Trials

{¶43} In May 2019, the matter proceeded to a jury trial on the seven remaining

counts in the indictment. The jury returned not guilty verdicts on counts 5, 6, and 7 and

failed to reach verdicts on counts 1 through 4. The state requested that the matter be

reset for a retrial on the latter counts.

{¶44} The state filed a motion to amend counts 1 through 4 of the indictment to

state that the offenses were “aggravated” felonies of the first degree rather than felonies

of the first degree based on the version of R.C. 2907.02(A)(1)(b) in effect in 1991. Mr.

Fast filed an objection to the state’s motion, contending that it was barred by double

jeopardy.

{¶45} The trial court filed a judgment entry granting the state’s motion to amend

and overruling Mr. Fast’s objection. The trial court determined that the amendment would

not change the name or identity of the charged offenses and that jeopardy had not

attached to counts 1 through 4 because the jury did not reach a verdict in the first trial.

{¶46} In September 2019, the matter proceeded to a retrial on counts 1 through

4. Prior to the state’s case-in-chief, the defense renewed its motion to dismiss the

indictment, which the trial court overruled.

{¶47} The defense also made a proffer in anticipation of E.L.’s testimony.

According to the defense, E.L.’s oral and written statements to the Jefferson Police

Department referenced alcohol and drug use/abuse as a teenager and drug addiction.

The defense argued that such issues were relevant to E.L.’s “memory,” “lack of memory,”

and “accuracy of memory” regarding the alleged incidents from 1990 and 1991 and

requested permission to cross-examine E.L. about them.

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 {¶48} The trial court inquired whether it had previously reviewed the issue in ruling

on the state’s motion in limine, and defense counsel confirmed that it had. The trial court

further inquired whether there was a basis to believe that E.L. was using any alcohol or

drugs of abuse in calendar years 1990 or 1991, and defense counsel confirmed there

was not. The trial court stated that its previous ruling would stay; it would continue to

enforce the previously-granted motion in limine; and there would be no examination

regarding E.L.’s alcohol and drug abuse that occurred long after the allegations in counts

1 through 4.

{¶49} As its case-in-chief, the state presented testimony from E.L., A.G., and

Officer Dumperth. During E.L.’s testimony, she described the alleged events underlying

counts 1 through 4 in very specific detail.

{¶50} Following the state’s presentation of its evidence, the defense moved for

acquittal pursuant to Crim.R. 29, which the trial court overruled.

{¶51} The defense presented testimony from Ronald McCloud, who was Mr.

Fast’s former co-worker and attested to Mr. Fast’s reputation for good character and

truthfulness; Ms. Harden; and Mr. Fast.

{¶52} The defense submitted as exhibits the vacation bible school programs from

1989 and 1990; a diagram of Mr. Fast’s Jefferson apartment that he had prepared; and a

photograph from a family event in 1998 that included Mr. Fast, Ms. Harden, and E.L. The

defense used Sgt. Dumperth’s police report during its cross-examination of the state’s

witnesses but did not offer it into evidence. After resting, the defense renewed its Crim.R.

29 motion for acquittal, which the trial court again overruled.

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 {¶53} Following deliberations, the jury returned guilty verdicts on all four counts.

The trial court ordered a presentence investigation and set the matter for sentencing.

Post-trial Motions

{¶54} Following the trial court’s filing of its judgment on the verdict, Mr. Fast filed

a motion for judgment of acquittal pursuant to Crim.R. 29(C), Article I, Section 10 of the

Ohio Constitution, and the Fifth and Fourteenth Amendments to the United States

Constitution, and, in the alternative, a motion for a new trial pursuant to Crim.R. 33. Mr.

Fast also requested a hearing, preparation of a trial transcript, and leave to supplement

his motion upon receipt of the trial transcript. The trial court filed a judgment entry

overruling Mr. Fast’s motions and request.

Sentencing

{¶55} At the sentencing hearing, the trial court sentenced Mr. Fast to terms of

actual incarceration of 10 to 25 years in prison on each count, with count 2 to be served

consecutive to count 1; count 3 to be served consecutive to counts 1 and 2; and count 4

to be served consecutive to counts 1, 2 and 3; for an aggregate term of actual

incarceration of 40 to 100 years. The trial court filed a judgment entry memorializing the

jury’s guilty verdicts and Mr. Fast’s sentences.

{¶56} Mr. Fast appealed and presents the following four assignments of error for

our review1:

{¶57} “[1.] The trial court committed prejudicial error by failing to grant

Defendant’s Motion to Dismiss the indictment based upon the statute of limitations set

forth in Ohio Revised Code Section 2901.13.

1. This court granted several extensions for the filing of the record on appeal, which were necessary due
to the court reporter’s illness.
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 {¶58} “[2.] The trial court committed prejudicial error by granting the State’s

Motion in Limine and restricting Defendant’s cross-examination of [E.L.] relative to her

drug use and addiction.

{¶59} “[3.] The trial court committed judicial error by failing to grant Defendant’s

Motions for Acquittal and Motion for New Trial.

{¶60} “[4.] The trial court committed prejudicial error in the sentencing of

Defendant.”

Motion to Dismiss

{¶61} In his first assignment of error, Mr. Fast contends that the trial court erred

in denying his motion to dismiss the indictment.

Standard of Review

{¶62} We review a trial court’s decision on a motion to dismiss pursuant to a de

novo standard of review. State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-

2455, ¶ 14.

Statute of Limitations

{¶63} Mr. Fast contends that counts 1 through 4 of the indictment were barred

from prosecution by virtue of the six-year statute of limitations set forth in the former

version of R.C. 2901.13. We disagree.

{¶64} The former version of R.C. 2901.13(A)(1) provided for a six-year statute of

limitations for all felonies except murder and aggravated murder. The former version of

R.C. 2901.13(F) provided that “[t]he period of limitation shall not run during any time when

the corpus delicti remains undiscovered.” The Supreme Court of Ohio held that “[f]or

purposes of R.C. 2901.13(F), the corpus delicti of crimes involving child abuse or neglect

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is discovered when a responsible adult, as listed in R.C. 2151.421, has knowledge of both

the act and the criminal nature of the act.” State v. Hensley, 59 Ohio St.3d 136, 571

N.E.2d 711 (1991), syllabus.

{¶65} In Hensley, the victims were still minors at the time the abuse was reported

and prosecution commenced. Several appellate districts subsequently determined that

the tolling of the statute of limitations adopted in Hensley ceases when the victim reaches

the age of majority. See State v. Hughes, 633 N.E.2d 1217, 1219 (12th Dist.1994); State

v. McGraw, 8th Dist. Cuyahoga No. 65202, 1994 WL 264401, *4 (June 16, 1994); State

v. Weiss, 96 Ohio App.3d 379, 384, 645 N.E.2d 98 (5th Dist.1994); State v. Webber, 101

Ohio App.3d 78, 81, 654 N.E.2d 1351 (9th Dist.1995); State v. Elsass, 105 Ohio App.3d

277, 281, 663 N.E.2d 1019 (10th Dist.1995); State v. Hammons, 3d Dist. Defiance No. 4-

95-3, 1995 WL 737526, *3 (Dec. 14, 1995); State v. Wooldridge, 2d Dist. Montgomery

No. 17708, 1999 WL 812363, *8 (Oct. 8, 1999).

{¶66} Effective March 9, 1999, R.C. 2901.13 was amended to increase the statute

of limitations to 20 years for certain offenses, including rape under R.C. 2907.02. See

H.B. No. 49, 1998 Ohio Laws 188; R.C. 2901.13(A)(3)(a). House Bill 49 provided that the

amended statute of limitations “applies to an offense committed prior to the effective date

of this act if prosecution for that offense was not barred under section 2901.13 of the

Revised Code as it existed on the day prior to the effective date of this act.”

{¶67} Thus, R.C. 2901.13(A)(3)(a) requires that a prosecution for rape commence

within 20 years after the offense is committed. State v. Bentley, 11th Dist. Ashtabula No.

2005-A-0026, 2006-Ohio-2503, ¶ 12. The amendment applies retroactively to offenses

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committed prior to the amendment, provided that the statute of limitations for such

offenses had not expired prior to the amendment. Id.

Analysis

{¶68} Based on the foregoing authority, the state’s prosecution of the rape

offenses in counts 1 through 4 of the indictment was not barred by the statute of

limitations. Counts 1 through 3 alleged rape offenses occurring between March 24, 1990,

and December 31, 1990, when E.L. was 9 years old. Count 4 alleged a rape offense

occurring between March 24, 1991, and December 31, 1991, when E.L. was 10 years

old. At the time these rape offenses were committed, the six-year statute of limitations

set forth in the former version of R.C. 2901.13(A)(1) applied. However, there is no

evidence that E.L. reported these offenses to a “responsible person” before she attained

the age of 18 on March 24, 1999. In fact, E.L. testified during the pretrial motions hearing

and during trial that she first disclosed being sexual assaulted after she turned 21.

{¶69} On March 9, 1999, the statute of limitations for rape was increased to 20

years. Since E.L. had not reported the rape offenses to a responsible adult and was three

weeks away from her eighteenth birthday, the 20-year statute of limitations became

applicable. However, it remained tolled until E.L. turned 18 on March 24, 1999. As a

result, the state was required to prosecute Mr. Fast prior to March 24, 2019. The

indictment was filed in April 2018; thus, the statute of limitations had not expired.

{¶70} Our conclusion is in accord with those of our sister districts that have applied

the foregoing authority to similar facts. See State v. Warren, 168 Ohio App.3d 288, 2006-

Ohio-4104, 859 N.E.2d 998, ¶ 13-14 (8th Dist.); State v. Picard, 5th Dist. Richland No.

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2009 CA 0108, 2010-Ohio-6358, ¶ 55-68; State v. Bowling, 12th Dist. Butler No. CA2014-

01-017, 2015-Ohio-360, ¶ 9-15.

{¶71} Mr. Fast’s first assignment of error is without merit.

Motion in Limine

{¶72} In his second assignment of error, Mr. Fast contends that the trial court

erred by granting the state’s motion in limine regarding E.L.’s alleged drug use and

addiction. According to Mr. Fast, the trial court’s ruling restricted his right of cross-

examination in violation of Evid.R. 616(B) and his right to introduce relevant evidence in

violation of Evid.R. 402.

Standard of Review

{¶73} Both the Supreme Courts of the United States and Ohio have held that the

“‘extent of cross-examination with respect to an appropriate subject of inquiry is within the

sound discretion of the trial court.’” State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d

1253 (1993), quoting Alford v. United States, 282 U.S. 687, 691, 694, 51 S.Ct. 218, 75

L.Ed. 624 (1931). “Thus, when the trial court determines that certain evidence will be * *

* excluded from trial, it is well established that the order or ruling of the court will not be

reversed unless there has been a clear and prejudicial abuse of discretion.” O’Brien v.

Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490 (1980).

{¶74} An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). When the

issue on review has been confided to the discretion of the trial court, the mere fact that

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the reviewing court would have reached a different result is not enough, without more, to

find error. Id.

Right of Cross-examination

{¶75} 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 * * *.” Similarly, the Ohio Constitution provides that “the party

accused shall be allowed * * * to meet the witnesses face to face.” Article I, Section 10.

The primary interest secured by the Confrontation Clause is the right of cross-

examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934

(1965).

{¶76} The right of cross-examination includes the right to impeach a witness’s

credibility. Green at 147. Under Evid.R. 611(B), “[c]ross-examination shall be permitted

on all relevant matters and matters affecting credibility.” Under Evid.R. 616(B), “[a] defect

of capacity, ability, or opportunity to observe, remember, or relate may be shown to

impeach the witness either by examination of the witness or by extrinsic evidence.”

{¶77} “However, the Confrontation Clause guarantees only ‘an opportunity for

effective cross-examination, not cross-examination that is effective in whatever way, and

to whatever extent, the defense might wish.’” (Emphasis sic.) State v. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83, quoting Delaware v. Fensterer, 474

U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). “Trial courts have ‘wide latitude * * * to

impose reasonable limits on such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.’” State v. McKelton, 148 Ohio

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St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 170, quoting Delaware v. Van Arsdall, 475

U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d. 674 (1986).

{¶78} These principles are further reflected in Evid.R. 611(A), which provides that

“[t]he court shall exercise reasonable control over the mode and order of interrogating

witnesses and presenting evidence so as to (1) make the interrogation and presentation

effective for the ascertainment of the truth, (2) avoid needless consumption of time, and

(3) protect witnesses from harassment or undue embarrassment.”

Relevancy and Prejudice

{¶79} Under Evid.R. 402, “[a]ll relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, by the Constitution of the

State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of

the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme

Court of Ohio. Evidence which is not relevant is not admissible.” Evid.R. 401 defines

“relevant evidence” as “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Nevertheless, “[a]lthough relevant, evidence is

not admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).

{¶80} Evidence of a witness’s drug use may be probative of his or her capacity or

ability to observe, remember, or relate under Evid.R. 616(B). See State v. Jacobs, 4th

Dist. Highland No. 11CA26, 2013-Ohio-1502, ¶ 57 (Harsha, J., concurring). However,

courts have recognized there is considerable danger that evidence a witness has used

illegal drugs may so prejudice the jury that it will excessively discount the witness’s

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testimony. See Flythe v. District of Columbia, 4 F.Supp.3d 222, 229 (D.D.C.2014)

(collecting cases).

{¶81} Thus, this court has held that “the credibility of testimony can be attacked

through evidence of a witness’s intoxication at the time of the matter about which the

witness seeks to testify.” (Emphasis added.) Kenney v. Fealko, 75 Ohio App.3d 47, 51,

598 N.E.2d 861 (11th Dist.1991). “Such evidence is relevant to the issue of credibility,

since it questions the ability of the witness to correctly perceive the events which allegedly

occurred.” Id.

{¶82} Similarly, federal courts have held that “‘a witness’s use of drugs may not

be used to attack his or her general credibility, but only his or her ability to perceive the

underlying events and testify lucidly at trial.’” United States v. March, 114 Fed.Appx. 671,

674 (6th Cir.2004), quoting Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir.1987).

Analysis

{¶83} Mr. Fast first contends that the trial court erred because evidence regarding

E.L.’s drug use and addiction was directly related to her ability to accurately recall events

that allegedly occurred 28 years prior to trial.

{¶84} We acknowledge that E.L.’s credibility and her ability to recall the alleged

incidents underlying counts 1 through 4 were crucial aspects of the state’s case against

Mr. Fast. However, Mr. Fast never asserted that E.L. was using drugs or alcohol at any

time during 1990 or 1991. At trial, the defense conceded that there was no basis to

believe that E.L. was using drugs of abuse or alcohol during 1990 or 1991.

{¶85} Although the trial court did not expressly set forth its reasoning in granting

the state’s motion in limine, it could have reasonably determined that E.L.’s subsequent

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drug use and addiction had minimal probative value in establishing her ability to recall

prior events and that any such value was outweighed by the danger of unfair prejudice

and confusion of the issues. See AAAA Ents., Inc. v. River Place Community Urban

Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990) (holding that a decision

constitutes an abuse of discretion “if there is no sound reasoning process that would

support” it). The trial court’s ruling was also consistent with the foregoing authority

regarding the admissibility of evidence regarding a witness’s drug use. Mr. Fast has not

cited any case law to support, much less compel, a contrary conclusion. Therefore, we

find no abuse of discretion on the trial court’s part.

{¶86} Mr. Fast next contends that the trial court erred because the time period in

which E.L. allegedly abused drugs and became an addict, i.e., her “teenage years,”

encompassed the ten-year time period referenced in the original eight counts of the

indictment, i.e., May 24, 1990, through May 31, 2000.

{¶87} Contrary to Mr. Fast’s suggestion, the indictment did not allege a continuing

course of conduct occurring over a ten-year period. For instance, counts 1 through 3

alleged separate offenses related in time and location, while count 4 alleged an offense

related in time but at a different location. The offenses alleged counts 5 through 8 were

each unrelated in time and location to counts 1 through 4.

{¶88} In addition, Mr. Fast’s use of the phrase “teenage years” is imprecise. At

the hearing on Mr. Fast’s motion in limine, defense counsel contended that E.L.

referenced being a drug addict and using drugs on the date of the offense charged in

count 8, which allegedly occurred on or between May 1 through May 31, 2000. During

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oral argument in this case, Mr. Fast’s appellate counsel confirmed that this argument

relates to the time period alleged in count 8.

{¶89} Even if we presume E.L. was using or was addicted to drugs during May

2000, it does not appear that the trial court’s ruling would have prohibited Mr. Fast from

cross-examining E.L. about it. The state’s motion in limine sought an order prohibiting

the defense from questioning E.L. regarding her alcohol or drug use “unrelated in time or

place to the offenses charged.” E.L.’s alleged drug use during May 2000 was arguably

related in time or place to count 8.

{¶90} Even if the trial court’s ruling could be construed as being improperly

overbroad, Mr. Fast cannot demonstrate resulting prejudice. The trial court subsequently

granted the state’s motion to dismiss count 8. Drug use or addiction during May 2000 is

not arguably related in time or place to counts 1 through 4, which alleged conduct

occurring in 1990 and 1991. Thus, any potentially prejudicial effect of the trial court’s

ruling was subsequently eliminated.

{¶91} Accordingly, we conclude that the trial court did not abuse its discretion in

granting the state’s motion in limine.

{¶92} Mr. Fast’s second assignment of error is without merit.

Sufficiency of the Evidence

{¶93} Within his third assignment of error, Mr. Fast contends that the trial court

erred by denying his motions for acquittal and motion for a new trial based on the

deficiencies in the state’s evidence.

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 Standard of Review

{¶94} Crim.R. 29(A) provides, in relevant part, that “[t]he court on motion of a

defendant or on its own motion, after the evidence on either side is closed, shall order the

entry of a judgment of acquittal of one or more offenses charged in the indictment,

information, or complaint, if the evidence is insufficient to sustain a conviction of such

offense or offenses.”

{¶95} Crim.R. 29(C) provides, in relevant part, that “[i]f a jury returns a verdict of

guilty * * *, a motion for judgment of acquittal may be made or renewed within fourteen

days after the jury is discharged or within such further time as the court may fix during the

fourteen day period. If a verdict of guilty is returned, the court may on such motion set

aside the verdict and enter judgment of acquittal.”

{¶96} Thus, when a defendant makes a Crim.R. 29 motion, he or she is

challenging the sufficiency of the evidence introduced by the state. State v. Patrick, 11th

Dist. Trumbull Nos. 2003-T-0166 & 2003-T-0167, 2004-Ohio-6688, ¶ 18.

{¶97} Pursuant to Crim.R. 33(A)(4), the trial court may grant a new trial on motion

of the defendant where “the verdict is not sustained by sufficient evidence * * *.” Although

technically distinct from a Crim.R. 29 motion by way of its remedy, a Crim.R. 33(A)(4)

motion for a new trial based upon insufficient evidence nonetheless tests the legal

sufficiency of the conviction. State v. Vitantonio, 2013-Ohio-4100, 995 N.E.2d 1291, ¶ 9.

Thus, we review Crim.R. 29 and Crim.R. 33(A)(4) motions under the same standard of

review. State v. Stephens, 11th Dist. Trumbull No. 2001-T-0044, 2002-Ohio-2976, ¶ 26.

{¶98} “‘“[S]ufficiency” is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

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sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th

Ed.1990). “In essence, sufficiency is a test of adequacy.” Id. “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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. “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.” Id.

{¶99} When evaluating the adequacy of the evidence, we do not consider its

credibility or effect in inducing belief. Thompkins at 386-387. Rather, we decide whether,

if believed, the evidence can sustain the verdict as a matter of law. Id.

Analysis

{¶100} Mr. Fast contends that E.L.’s testimony was “completely deficient” to

establish that the rape offense in count 4 occurred in 1991, as charged in the indictment.

According to Mr. Fast, E.L.’s testimony referenced the year 1992.

{¶101} Count 4 of the indictment charged Mr. Fast with rape involving a person less

than 13 years of age in violation R.C. 2907.02(A)(1)(b) and alleged the offense took place

between March 24, 1991, and December 31, 1991, in Roaming Shores.

{¶102} E.L. testified that she was born on March 24, 1981, and that this offense

occurred during the summer of 1991 when she was ten years old. During cross-

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examination, E.L. conceded that she identified the year as 1992 in her written statement

to police. On redirect examination, the state inquired as follows:

{¶103} “[THE STATE]: Who is the man who touched you and penetrated you in

1990?

{¶104} “[E.L.] Robert Fast.

{¶105} “[THE STATE]: 1991?

{¶106} “[E.L.] Robert Fast.”

{¶107} Thus, we conclude the state presented sufficient evidence for a reasonable

jury to conclude that the rape offense charged in count 4 occurred in 1991. The

discrepancy between E.L.’s trial testimony and her written statement to the police involved

the weight of the evidence rather than its sufficiency.

{¶108} Accordingly, the discussed portion of Mr. Fast’s third assignment of error is

without merit.

Manifest Weight of the Evidence

{¶109} Within his third assignment of error, Mr. Fast contends that the jury’s

verdicts were against the manifest weight of the evidence.

Standard of Review

{¶110} “[W]eight of the evidence addresses the evidence’s effect of inducing

belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

“In other words, a reviewing court asks whose evidence is more persuasive—the state’s

or the defendant’s?” Id. “‘The court, 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

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such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered.’” Thompkins, supra, at 387, quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

{¶111} “‘When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting

testimony.’” Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d

652 (1982). “‘The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.’” Id.,

quoting Martin at 175.

Analysis

{¶112} Mr. Fast contends that the evidence supporting counts 1 through 3 are

contradicted by the “multiple deficiencies” in E.L.’s testimony and the testimony of other

witnesses.

{¶113} Mr. Fast has failed to cite any portion of the record or relevant legal authority

in support of this proposition, in violation of App.R. 16(A)(7). For this reason alone, his

argument lacks merit. In any event, after reviewing the entire record and weighing the

evidence and all reasonable inferences, we find that the jury did not clearly lose its way

or create a manifest miscarriage of justice.

{¶114} Given the long period of time between the alleged offenses and E.L.’s report

to police, the state’s case against Mr. Fast necessarily depended heavily on matters of

witness credibility. “[T]he credibility of the witnesses is primarily for the trier of the facts.”

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

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syllabus. “The choice between credible witnesses and their conflicting testimony rests

solely with the finder of fact and an appellate court may not substitute its own judgment

for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277

(1986). A fact finder is free to believe all, some, or none of the testimony of each witness

appearing before it. State v. Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127,

¶ 58.

{¶115} Further, when reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the trier of

fact are correct. Id. at ¶ 59. This presumption arises because the fact finder had an

opportunity to view the witnesses and observe their demeanor in weighing their credibility.

Id.

{¶116} At trial, E.L. testified in great detail regarding Mr. Fast’s alleged sexual

assaults. Certain aspects of E.L.’s testimony was bolstered by consistent testimony from

the other witnesses.

{¶117} For example, A.G. confirmed the general dysfunction present in their

household as children; that she and E.L. were affiliated with the First Baptist Church in

Jefferson; that they attended the vacation bible school at the church during certain

summers; that E.L. stayed at Mr. Fast’s Jefferson apartment during one summer to attend

the school; and the general events surrounding the alleged Roaming Shores rape

offense.

{¶118} Mr. Fast and Ms. Harden each confirmed details regarding the layout of

their Jefferson apartment; that Mr. Fast wore a blue Speedo; and that Mr. Fast owned a

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red Camaro. Mr. Fast confirmed some of the events surrounding the alleged Roaming

Shores rape offense.

{¶119} The jury also heard Mr. Fast’s steadfast denials that he sexually assaulted

E.L. and both Mr. Fast’s and Ms. Harden’s testimony that E.L. never stayed overnight at

their Jefferson apartment, despite her description of it.

{¶120} The jury was in the best position to view these witnesses and determine

their respective credibility. Despite the defense’s best efforts, the jury chose to believe

E.L.’s version of events.

{¶121} In addition, as the defense demonstrated, E.L.’s trial testimony contained

some inconsistences in comparison to her written statement to police. For instance, E.L.

stated that the Roaming Shores rape offense occurred in 1992 rather than 1991 and

identified the location of Mr. Fast’s former Jefferson apartment building as being replaced

by Rite Aid rather than Drug Mart. These inconsistencies do not weigh heavily against

Mr. Fast’s convictions, as the evidence supports an inference that they were errors in

recollection.

{¶122} We also note the evidence indicating E.L.’s name does not appear in either

the 1989 or 1990 vacation bible school program pamphlets. However, A.G.’s name

appears in the 1989 program, which confirms aspects of her testimony. In addition, A.G.

testified that she did see not the names of some children who did attend and did not

recognize the names of other children who were listed in the program pamphlet as

attending. Thus, this evidence also does not weigh heavily against Mr. Fast’s convictions,

as the evidence supports an inference that the program pamphlets were not entirely

factually accurate.

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 {¶123} Given the totality of the evidence, we cannot say that inconsistencies or

conflicting evidence rendered E.L.’s testimony so incredible as to be unbelievable.

Accordingly, the jury did not clearly lose its way and create a manifest miscarriage of

justice in weighing the evidence.

{¶124} The remainder of Mr. Fast’s third assignment of error is without merit.

Sentencing

{¶125} In his fourth and final assignment of error, Mr. Fast contends that the trial

court imposed his sentences after a second trial pursuant to an improperly amended

indictment, which constituted an abuse of discretion and was in violation of law.

Standard of Review

{¶126} The standard of review for felony sentences is governed by R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 16. It provides as follows:

{¶127} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

{¶128} “The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court’s standard for review is not

whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds either of the following:

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 {¶129} “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶130} “(b) That the sentence is otherwise contrary to law.”

{¶131} “‘Clear and convincing evidence is that measure or degree of proof which is

more than a mere “preponderance of the evidence,” but not to the extent of such certainty

as is required “beyond a reasonable doubt” in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

Law and Analysis

{¶132} Crim.R. 7(D) governs the amendment of an indictment and provides, in

relevant part, as follows:

{¶133} “The court may at any time before, during, or after a trial amend the

indictment, information, complaint, or bill of particulars, in respect to any defect,

imperfection, or omission in form or substance, or of any variance with the evidence,

provided no change is made in the name or identity of the crime charged.” (Emphasis

added.)

{¶134} Although Mr. Fast contends that the trial court’s amendment was “improper”

and “in violation of law,” he has failed to develop an argument or cite any relevant legal

authority in support of this proposition.

{¶135} In any event, we note that the Supreme Court of Ohio has held that “Crim.R.

7(D) does not permit the amendment of an indictment when such amendment changes

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the penalty or degree of the charged offense; amending the indictment to change the

penalty or degree changes the identity of the offense.” State v. Davis, 121 Ohio St.3d

239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 13. The court later clarified that reversible error

occurs when the state attempts to “‘increase the penalty or degree of the offense’

charged.” (Emphasis added.) State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286,

934 N.E.2d 920, ¶ 9, quoting Davis at ¶ 12.

{¶136} For example, in Davis, the court found reversible error where the

amendment significantly increased the quantity of drugs alleged to have been sold,

thereby increasing the degree of the offense to a second-degree felony from a fourth-

degree felony and increasing the potential penalties. See id. at ¶ 9.

{¶137} In this case, counts 1 through 4 of the indictment charged Mr. Fast with rape

in violation R.C. 2907.02(A)(1)(b). These counts alleged that Mr. Fast engaged in sexual

conduct with E.L., who was not his spouse and was less than 13 years of age. The

indictment identified these offenses as being felonies of the first degree.

{¶138} At the first jury trial, the jury failed to reach verdicts on these counts. Prior

to retrial, the state filed a motion to amend the indictment to state that the offenses in

counts 1 through 4 were “aggravated” felonies of the first degree based on the version of

R.C. 2907.02(A)(1)(b) in effect in 1991. Mr. Fast objected to the state’s motion. The trial

court granted the state’s motion to amend and overruled Mr. Fast’s objection.

{¶139} Under these facts, Crim.R. 7(D) permitted the trial court to amend the

indictment, as it did not change either the name or identity of the offenses charged.

Counts 1 through 4 of the original indictment clearly stated that Mr. Fast was charged with

rape in violation of R.C. 2907.02(A)(1)(b) and included the necessary essential elements

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of that offense. Under the version of Ohio Revised Code in effect in 1990 and 1991, an

offense in violation of R.C. 2907.02(A)(1)(b) was identified as “rape” and was classified

as an “aggravated felony of the first degree.” See former R.C. 2907.02(B). There was

not a rape offense classified as a “felony of the first degree.” Thus, the trial court’s

amendment was, in essence, a correction of a clerical error.

{¶140} This court and others have permitted amendments in similar circumstances.

For example, in State v. Wellman, 4th Dist. Pickaway No. 85 CA 5, 1986 WL 9078 (Aug.

20, 1986), the indictment was amended to state that an aggravated burglary offense in

violation of R.C. 2911.11(A)(3) was an “aggravated felony of the first degree” rather than

a “felony of the first degree.” Id. at *3. The Fourth District determined that the amendment

did not change the nature or identify of the offense because it was always “aggravated

burglary in violation of R.C. 2911.11(A)(3).” Id.

{¶141} In State v. Ryan, 11th Dist. Ashtabula No. 1316, 1988 WL 363194 (Jan. 22,

1988), the indictment was amended to change the numerical designation of a rape

offense from R.C. 2907.02(A)(3) to R.C. 2907.02(A)(1)(b) based on a change in the Ohio

Revised Code prior to the commission of the offense. Id. at *3. The elements of the

offense remained identical, although the degree of felony was changed from a felony of

the first degree to an aggravated felony of the first degree. Id. This court found no

reversible error because the original indictment contained the substantial language of the

specific code section involved. Id.

{¶142} Our conclusion is not changed by the fact that the amendment occurred

prior to a retrial on counts 1 through 4.

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 {¶143} “The Double Jeopardy Clause of the United States Constitution prohibits (1)

a second prosecution for the same offense after acquittal, (2) a second prosecution for

the same offense after conviction, and (3) multiple punishments for the same offense.”

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 10. “[J]eopardy

does not terminate when the jury is discharged because it is unable to agree.” Richardson

v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

{¶144} Here, the jury failed to reach verdicts on counts 1 through 4 at the first trial.

Therefore, Mr. Fast was not retried for the same offenses after acquittal or conviction.

{¶145} Accordingly, Mr. Fast has not established that his sentence is clearly and

convincingly contrary to law.

{¶146} Mr. Fast’s fourth assignment of error is without merit.

{¶147} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.

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