State v. Marshall

[Cite as State v. Marshall, 2021-Ohio-4434.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109633
v. :

JUANITO MARSHALL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 16, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-635603

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eben O. McNair, Assistant Prosecuting
Attorney, for appellee.

Russell S. Bensing, for appellant.

EMANUELLA D. GROVES, J.:

Defendant-appellant Juanito Marshall (“Marshall”) appeals his

convictions for multiple counts of rape and other charges after a jury trial. For the

following reasons, we affirm.
 Factual and Procedural History

On November 8, 2018, then 16-year-old K.H. revealed that she had

been raped when she was seven. She and her mother, C.E., got into an argument,

and K.H. yelled that her mother did not care about her and did not know she had

been raped in the past. K.H. told C.E. that Marshall was the rapist. C.E. immediately

called Marshall, and then her sister, T.T. Marshall and T.T. had been in a

relationship years ago and share a daughter, Al.M. K.H. and C.E., who had moved

out of state, immediately arranged to return to Ohio. On November 12, 2018, C.E.,

K.H., and T.T. went to the Broadview Heights police station to report the rapes.

On March 4, 2019, Marshall was indicted as follows: Count 1, rape

(fellatio) by force of a victim under the age of ten; Count 2, kidnapping of a victim

under the age of eighteen with a sexual motivation; Count 3, endangering children,

causing serious physical harm; Count 4, disseminating matter harmful to a juvenile

where the victim was under thirteen years of age; Count 5, rape (fellatio) by force of

a victim under the age of ten; Count 6, rape (anal penetration) by force of a victim

under the age of ten; Count 7, endangering children, causing serious physical harm;

Count 8, kidnapping of a victim under the age of eighteen with a sexual motivation;

Count 9, disseminating matter harmful to a juvenile where the victim was under 13

years of age; Count 10, endangering children.

The parties filed several pretrial motions. Most relevant to this appeal,

Marshall filed a motion to exclude any testimony regarding his past sexual behavior

with T.T. Marshall argued that testimony from T.T. as to digital anal penetration
during intercourse and asking her to open her mouth wider during oral sex was not

relevant or admissible. In his motion, Marshall argued that the evidence was

inadmissible under the rape shield statute R.C. 2907.02(D) and that it was

inadmissible under both Evid.R. 404(B) and R.C. 2945.59. In response, the state

argued that the evidence was both admissible and relevant and that it would show

Marshall’s plan and modus operandi.

The trial court heard testimony from T.T. prior to trial. After hearing

her testimony, the trial court held in abeyance its ruling on Marshall’s motion. The

court found that the admissibility of T.T.’s testimony would depend on K.H.’s

testimony.

The trial began on February 12, 2020, and the testimony was as follows:

Sometime in early 2009, K.H., C.E., and M.M., moved into Marshall’s home in

Broadview Heights. At that time, Marshall, T.T., and their daughter Al.M. lived in

the home. At the time, C.E. had guardianship of M.M., her aunt, who had dementia.

Moving in allowed C.E. to secure T.T.’s assistance in caring for M.M. The home had

five bedrooms. K.H., C.E., and M.M. slept in a downstairs bedroom. Marshall and

T.T. had the master bedroom on the second floor. Al.M.’s bedroom was next to the

master. K.H. would share Al.M.’s room on occasion. Marshall’s four other children,

J.M., Am.M., I.M., and G.M. would periodically stay at the house. When all the kids

were there, the boys would sleep in one room and the girls would sleep in another.

K.H. thought of Marshall as an uncle and treated him as such. They

had a good relationship. Marshall would always compare K.H. to T.T., telling her
that they looked a lot alike and that when K.H. grew up she was going to be prettier

than T.T.

The First Offense

K.H. testified that the first offense happened when C.E. and T.T. had

gone shopping. Al.M. was watching TV on the first floor while K.H. was playing in

Al.M.’s bedroom. Marshall was in the master bedroom, which also had a computer

room. K.H. testified that Marshall called her by name, and she went into the

computer room. When K.H. entered, she saw Marshall seated with his pants open

and his penis exposed. Marshall started moving his penis and said to K.H., “I know

you see it.” K.H. testified she was scared and thought she was in trouble. When she

tried to leave, Marshall grabbed her by the arm and wouldn’t let her go. At that

point, they heard the garage door open. Marshall let her go and K.H. ran out of the

room.

T.T. testified that Marshall told her about the incident; however,

according to T.T., Marshall told her that K.H. inadvertently saw his penis when he

was in the computer room. He alleged that he was wearing loose pants and his penis

was exposed. Marshall told T.T. that he had an “uncle-niece” conversation with K.H.

about how that was inappropriate. T.T. told C.E. about the incident. C.E. was upset

when she heard, then talked to K.H. about it. Based on the information C.E. received

at the time, she did not feel it was necessary to leave the home or take any further

action.
The Second Offense

K.H. testified that the second offense happened a couple of months

after the first incident. K.H. was unsure exactly when this happened but was sure

that T.T. was no longer living in the home at that time.

During the second incident, K.H. testified that she woke up and her

mother and great aunt were still sleeping. K.H. went upstairs to the master bedroom

and started playing cards with Marshall. At some point, Marshall began to pick K.H.

up and throw her on the bed. At one point, he picked her up and digitally penetrated

her anus through her underwear before tossing her on the bed. Marshall asked her

if it hurt and K.H. nodded yes. Marshall then grabbed a DVD that had a picture of a

naked man and woman on it. The woman’s legs were spread open, and the man was

lying between them. K.H. testified that Marshall asked K.H. if she wanted that

picture to be the two of them. K.H. didn’t know what to say, so she nodded yes. After

that, they kept playing cards until C.E. called up for K.H. and asked what she was

doing. K.H. told C.E., “nothing, playing cards,” then went back downstairs. K.H.

did not tell C.E. what happened at that time because she was scared.

On cross-examination, the defense questioned K.H. about a

videotaped interview she gave to the police. K.H. testified that she did not recall

some parts of her interview. On her second day of testifying, K.H. remembered that

there were two incidents of oral sex, not one as she had previously testified. K.H.

was not able to remember the details of the first incident of oral sex, only that it
either happened during the second incident or sometime between the second and

third incident.

The trial court then permitted the defense to show K.H. her

videotaped statement to refresh her recollection. After viewing the video, K.H.

recalled telling two of Marshall’s children, Am.M. and J.M., about performing oral

sex on Marshall. Additionally, she remembered that Am.M. and J.M. advised her to

bite Marshall if he tried to make her do it again.

The Third Offense

The third offense happened sometime after K.H., C.E. and M.M.

moved out of the Broadview Heights home. K.H. was visiting the home to play with

Marshall’s children. All the kids were in the master bedroom with Marshall.

Marshall would take turns throwing the kids on the bed. Marshall then told all the

kids except K.H. to leave the room. J.M. hesitated, but, per K.H., Marshall yelled at

him and J.M. left.

Marshall then locked the door and got under the covers. He then

pulled his pants down and made K.H. put her head under the covers. Marshall then

told her to “open” and made her perform fellatio on him. He then proceeded to put

his hand on K.H.’s head and move it up and down. K.H. bit him. Marshall asked

her if she was okay and K.H. told him no. He then asked K.H. if she wanted to

continue and K.H. told him no. K.H. then unlocked the door and ran downstairs.

After viewing her videotaped statement, K.H. further recalled that

before the third offense, she was sleeping in a bed with Marshall’s two oldest
daughters, Am.M. and I.M. Marshall came into the room and got into bed with

them, spooning K.H. When they all woke up, they went into the master bedroom

and Marshall began throwing them on the bed. Then Marshall kicked the other

children out of the room and made K.H. stay. K.H. testified that the remainder of

the third offense incident occurred as she had testified earlier.

T.T.’s Testimony

After K.H.’s testimony, the trial court decided to allow T.T.’s

testimony about Marshall’s habits with limits. The trial court permitted her to testify

that Marshall repeatedly compared K.H. to T.T. and suggested that K.H. would grow

to be more beautiful than T.T. The trial court also allowed T.T. to testify about

Marshall’s preference for digital anal penetration. The court found there was

insufficient basis to allow T.T. to testify about Marshall telling her to open her mouth

wider during oral sex.

T.T. testified that she met Marshall around 2000 or 2001 when she

was 18 or 19 years old. They were initially friends and then began seeing one

another. T.T. became pregnant, around January of 2005. T.T. and Marshall moved

in together within a year of Al.M.’s birth.

T.T. testified that Marshall began comparing K.H.’s looks to hers

when K.H. was five. Marshall would repeatedly say that K.H. and T.T. were “babes,”

and that K.H. would be prettier than T.T. when she grew up.

T.T. testified that C.E. called her in November 2018 about K.H.’s

allegations. When C.E. and K.H. returned to Ohio, T.T. went with them to the police
station. T.T. talked to Det. Ambrose separately. T.T. testified that she did not

discuss K.H.’s allegations with either K.H. or C.E. T.T. first heard the nature of the

allegations when she spoke to Det. Ambrose. When she learned that K.H. alleged

that Marshall performed digital anal penetration, T.T. recalled that he did the same

thing to her when they had sex.

At trial, T.T. testified that when she and Marshall began having sex,

he insisted on digital anal penetration. T.T. indicated she was uncomfortable with

it at first and they talked about it. Marshall told T.T. that he did it because he felt it

made his partner more aroused.

Am.M.’s Testimony

Am.M., Marshall’s oldest daughter, also testified. Am.M. testified

that she became aware that K.H. had disclosed her allegations against Marshall to

others in November of 2018 when she received a call from her stepmother, T.M.

Am.M. spoke to Det. Ambrose on November 21, 2018. Also, Am.M. testified that in

either 2008 or 2009, K.H. told her that Marshall and K.H. had touched each other’s

private parts and would watch videos. Am.M. believed that her other siblings, J.M.,

I.M., and G.M. were present during this conversation. Am.M. denied knowing about

any oral sex and did not remember telling K.H. to bite Marshall’s penis. Am.M. did

remember Marshall commenting that K.H. looked like T.T.

Am.M. specifically remembered one day sitting on the stairs at the

Broadview Heights house, looking up, and seeing Marshall carry K.H. into his room

and close the door. Am.M. testified that Marshall and K.H. were laughing and
joking. Am.M. remembered this incident because it was shortly after K.H. told her

what had been happening with Marshall.

Am.M. further disclosed that she did not want to be a witness and had

not had contact with Marshall’s side of the family since November 2018.

Defense Case-in-Chief: T.M.’s testimony

T.M., Marshall’s wife, testified on behalf of the defense. T.M. had

known Marshall for 22 years and is the mother of two of his children, J.M. and I.M.

T.M. testified that Marshall and T.T. were having problems in the beginning of 2009.

She was aware of this because on two separate occasions Marshall stayed with her

to avoid issues at home. T.M. testified that he moved in with her permanently about

June 8, 2009, and they have been together since that date.

T.M. testified that, except for a four-year period when Marshall was

incarcerated in Texas, he has lived with her. T.M. did not believe anyone lived in the

Broadview Heights house after June 8, 2009, because the house was foreclosed and

was scheduled to be sold at sheriff’s sale on June 29, 2009. However, she

acknowledged on cross-examination that the house did not sell until a few years

later. T.M. was unaware that C.E., K.H., and M.M. lived with Marshall in 2009.

T.M. also was adamant that her children did not visit the Broadview Heights house

after January 2009 and believed the same was true for Marshall’s two other

children, Am.M. and G.M.
 The Verdict

After the state’s case-in-chief, the trial court dismissed one count of

disseminating material harmful to a juvenile pursuant to Crim.R. 29. At the end of

all the testimony, the remaining charges went to the jury.

The jury found Marshall guilty on all of the remaining counts.

Marshall presents the following assigned errors for our review.

Assignment of Error No. 1
The convictions of rape and kidnapping are against the manifest weight
of the evidence.

Assignment of Error No. 2
The trial court erred in its admission of evidence which did not qualify
under the exceptions for propensity evidence under Evid.R. 404(B).

Assignment of Error No. 3
The trial court plainly erred in allowing evidence under Evid.R. 404(B)
but failing to provide the jury with a limiting instruction on the use of
such evidence.

Assignment of Error No. 4
Defense Counsel provided ineffective assistance of counsel, in violation
of the 6th Amendment of the United States Constitution, in failing to
object to the trial court’s failure to provide the jury with a limiting
instruct [sic] on the use of 404(B) evidence.

Weight of the Evidence

In his first assignment of error, Marshall argues that his convictions

for rape and kidnapping were against the manifest weight of the evidence. Marshall

argues that K.H.’s testimony lacked credibility, specifically pointing to her

remembrance during trial of a second act of fellatio and her inability to pinpoint

when certain events occurred. He argues that because of these inconsistencies his

convictions were against the manifest weight of the evidence. Marshall further
argues that we should give less deference to the juries’ findings of credibility. We

disagree.

Law and Analysis

When a defendant challenges his conviction based on the manifest

weight of the evidence, he is challenging whether the prosecution met its burden of

persuasion. State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583,

¶ 32. We must determine “whether ‘there is substantial evidence upon which a jury

could reasonably conclude that all the elements have been proved beyond a

reasonable doubt.’” State v. Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-

1416, ¶ 29, citing State v. Leonard, 104 Ohio St.3d 54, 68, 2004-Ohio-6235, 818

N.E.2d 229. Therefore, when analyzing the manifest weight of the evidence, we

must

review the entire record, weigh the evidence, and all reasonable
inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly
lost its way and created a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.

Jackson at ¶ 32, citing State v. Otten, 33 Ohio App.3d 339, 515 N.E.2d 1009 (9th

Dist.1986), paragraph one of the syllabus.

To that end, we act as the “thirteenth juror” who has the discretionary

power to grant a new trial. State v. Taylor, 8th Dist. Cuyahoga No. 108347, 2020-

Ohio-3589, ¶ 38. The jury is in a unique position “to view the witnesses’ demeanor,

gestures, facial expressions, and voice inflections.” Id. at ¶ 39. We reject Marshall’s

suggestion that we give less deference to the juries’ determinations of credibility.
State v. Hester, 8th Dist. Cuyahoga No. 108207, 2019-Ohio-5341, ¶ 21. So

“[a]lthough we have the discretionary power of a ‘thirteenth juror’ to grant a new

trial, that power should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.” Id. at ¶ 22.

In the instant case, Marshall was convicted of three counts of rape

under R.C. 2907.02(A)(1)(b), which required the state to prove he engaged in sexual

conduct with K.H., who was not his spouse and was under the age of 13. The state

also needed to show that he compelled K.H., who was under the age of ten, to submit

by force or threat of force. In two of the counts, the “sexual conduct” was fellatio, in

the third, it was anal penetration.

Marshall was also convicted of two counts of kidnapping under R.C.

2905.01(A)(4), which required the state to prove that Marshall did, by force, threat,

or deception, purposely remove K.H. from the place where she was found or restrain

the liberty of K.H. for the purpose of engaging in sexual activity with K.H. against

her will. The state was also required to prove that K.H. was under 18 at the time and

that Marshall committed the offense with sexual motivation.

It is axiomatic that, if believed, a victim’s testimony is enough to prove

rape. State v. Wampler, 6th Dist. Lucas No. L-15-1025, 2016-Ohio-4756, ¶ 58. The

state need not present corroborating testimony or physical evidence “as a condition

precedent to conviction.” Id., citing State v. Reinhardt, 10th Dist. Franklin No.

04AP-116, 2004-Ohio-6443, ¶ 29 and State v. Birt, 12th Dist. Butler No. 2012-02-

031, 2013-Ohio-1379 ¶ 48.
 Here, K.H. testified to three incidents of rape. K.H. testified that

Marshall had her perform oral sex on him two times. She also testified that Marshall

digitally penetrated her anus.

Furthermore, K.H. and T.T.’s testimony established that Marshall

held the role of uncle towards K.H. The element of force may be shown where the

“‘youth and vulnerability of children, coupled with the power inherent in a parent’s

position of authority, creates a unique situation of dominance and control in which

explicit threats and displays of force are not necessary to effect the abuser’s

purpose.’” State v. Dye, 82 Ohio St.3d 323, 327, 695 N.E.2d 763 (1998), quoting

State v. Eskridge, 38 Ohio St.3d 56, 58, 526 N.E.2d 304 (1988).

While corroboration was not necessary, other witnesses corroborated

almost every aspect of K.H.’s testimony. K.H. testified that Marshall exposed

himself to her. T.T. confirmed that Marshall told her that K.H. saw his exposed

penis. C.E. confirmed that T.T. spoke to her about the incident and that she spoke

to K.H. about it. Then, K.H. testified that she told Marshall’s two oldest children

about at least one instance of fellatio.

Am.M., Marshall’s daughter, confirmed that K.H. told her that

Marshall and K.H. had touched each other’s private parts. Am.M. further confirmed

seeing her father carry K.H. into the master bedroom and close the door. Finally,

K.H. testified to seeing a pornographic video cover, and Am.M. testified that K.H.

told her that in addition to the touching, Marshall and K.H. watched videos.
 The state also presented the testimony of Kirsti Mouncey, chief

program officer with the Rape Crisis Center. Mouncey utilized her knowledge of the

behavior of child rape victims to help the jury understand how child rape victims

process their assaults and how they remember them. Mouncey explained that child

rape victims often try not to think too much about their sexual assaults in order to

deal with it.

Additionally, in some cases, Mouncey testified that child rape victims

won’t think about the details of the incident for years until something prompts them

to disclose. Once that happens, Mouncey testified recalling the incidents can bring

forth a lot of difficult emotions.

Competent, credible evidence was presented to support the jury’s

findings of guilt.

Marshall’s first assignment of error is overruled.

Other Acts Evidence

In his second assignment of error, Marshall argues that the trial court

erred in admitting the testimony of T.T. since that testimony did not fall into one of

the exceptions under Evid.R. 404(B) or R.C. 2945.59. We agree that it was error for

the evidence to be admitted but find that Marshall was not prejudiced by the

admission.
 Standard of Review

“The admissibility of other-acts evidence pursuant to Evid.R. 404(B)

is a question of law.” State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161

N.E.3d 651, ¶ 22. “Determining whether the evidence is offered for an impermissible

purpose does not involve the exercise of discretion * * *, [therefore] an appellate

court should scrutinize the [trial court’s] finding under a de novo standard” of

review. Id., quoting Leonard, The New Wigmore: Evidence of Other Misconduct

and Similar Events, Section 4.10 (2d Ed.2019).

“[T]he trial court is precluded by Evid.R. 404(B) from admitting

improper character evidence, but it has discretion whether to allow other-acts

evidence that is admissible for a permissible purpose.” Id., citing State v. Williams,

134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 17. If the reviewing court

finds that the evidence was admitted for a permissible purpose, this court “should

not disturb [that decision] in the absence of an abuse of discretion that created

material prejudice.” State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-Ohio-

5241, ¶ 66, quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972

N.E.2d 528 at ¶ 16. An abuse of discretion is more than an error of law or judgment.

State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654, ¶ 13 (8th

Dist.) “It implies that the trial court’s decision was unreasonable, arbitrary, or

unconscionable.” Id.
 Law and Analysis

In the instant case, the trial court permitted T.T. to testify as to

specific instances of Marshall’s sexual activity. Ordinarily, in a rape case, incidents

of either the victim’s or the defendant’s past sexual activity would be inadmissible

under the rape shield statute, R.C. 2907.02(D). State v. Jeffries, 160 Ohio St.3d

300, 2020-Ohio-1539, 156 N.E.3d 859, ¶ 14. However, there are exceptions. For a

defendant the statute states:

Evidence of specific instances of the defendant’s sexual activity,
opinion evidence of the defendant’s sexual activity, and reputation
evidence of the defendant’s sexual activity shall not be admitted under
this section unless it involves evidence of the origin of semen,
pregnancy, or disease, the defendant’s past sexual activity with the
victim, or is admissible against the defendant under section 2945.59 of
the Revised Code, and only to the extent that the court finds that the
evidence is material to a fact at issue in the case and that its
inflammatory or prejudicial nature does not outweigh its probative
value.

R.C. 2907.02(D).

In the instant case, the origin of semen, pregnancy, or disease was not

at issue. Further, the past sexual history of the defendant with the victim was not at

issue. Therefore, the proposed evidence would only be admissible under R.C.

2945.49 and only if “its inflammatory or prejudicial nature does not outweigh its

probative value.” R.C. 2907.02(D).

R.C. 2945.49 and Evid.R. 404(B) are in accord with one another

although they do differ. R.C. 2945.49 states, in pertinent part:
 In any criminal case in which the defendant’s motive or intent, the
absence of mistake or accident on his part, or the defendant’s scheme,
plan, or system in doing an act is material, any acts of the defendant
which tend to show his motive or intent, the absence of mistake or
accident on his part, or the defendant’s scheme, plan, or system in
doing the act in question may be proved, whether they are
contemporaneous with or prior or subsequent thereto,
notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant.

(Emphasis added.) R.C. 2945.59.

Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the

common law with respect to evidence of other acts of wrongdoing, “the standard for

determining admissibility of such evidence is strict, and the statute section and rule

must be construed against admissibility.” State v. Valsadi, 6th Dist. Wood No. WD-

09-064, 2010-Ohio-5030, ¶ 47, citing State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d

682 (1988), at paragraph one of the syllabus.

[I]n order for “other acts” evidence to be admissible, it must come
within one of the theories of admissibility enumerated in Evid.R.
404(B) or R.C. 2945.59. In addition, proof of one of these purposes
must go to an issue which is material in proving the defendant’s guilt
for the crime at issue. Further, the prior act must not be too remote
and must be closely related in nature, time, and place to the offense
charged. A prior act which is “* * * too distant in time or too removed
in method or type has no permissible probative value.”

Valsadi at ¶ 48.

Here, Marshall argues that the evidence was not admissible under

Evid.R. 404(B) or R.C. 2945.59.

Evidence of an accused’s other acts or crimes is admissible, but only

if those acts “prove something other than the defendant’s disposition to commit

certain acts.” Hartman, 161 Ohio St.3d 214 at ¶ 22. In other words, “while evidence
showing the defendant’s character or propensity to commit crimes or acts is

forbidden, evidence of other acts is admissible when the evidence is probative of a

separate, nonpropensity-based issue.” Id.

In determining the admissibility of other acts evidence, we must

determine whether the evidence is relevant. Id. at ¶ 24. The issue with other acts

evidence, however, is that propensity evidence will almost always have some

relevance. Id. at ¶ 25. Propensity evidence is excluded “not because it has no

appreciable probative value but because it has too much.” Id., citing 1A Wigmore,

Evidence, Section 58.2, at 1212 (Tillers Rev. 1983).

Therefore, when it comes to other acts testimony, the question is not

“whether the other-acts evidence is relevant to the ultimate determination of guilt.

Rather, the court must evaluate whether the evidence is relevant to the particular

purpose for which it is offered.” (Emphasis sic.) Id. at ¶ 26 Further, “the

nonpropensity purpose for which the evidence is offered must go to a ‘material’ issue

that is actually in dispute between the parties.” (Emphasis added.) Id. at ¶ 27. Not

only must the evidence go to a material issue, but there must be “a threshold

showing that the act for which the evidence is offered actually occurred. * * * and

that the defendant was the actor.” Id. at ¶ 28.

So, in summary, other acts evidence is inadmissible unless it is a)

relevant to the nonpropensity purpose for which it is being introduced, b) admitted

prove/supporting an issue that is actually in dispute in the case at hand, and c) there

is evidence that i) the act occurred and ii) the defendant committed the act. Whether
the probative value of the other acts evidence outweighs the prejudicial effect of the

evidence only becomes an issue if the evidence survives this initial threshold of

admissibility.

In the instant case, the state argued that T.T.’s testimony was relevant

to show Marshall’s modus operandi or plan.1 They argued that T.T.’s testimony

would demonstrate that Marshall essentially groomed T.T. and groomed K.H. in a

similar manner. “‘Modus operandi’ literally means method of working.” Hartman

at ¶ 37. “A modus operandi provides a ‘behavioral fingerprint’ for the other acts,

which can be compared to the behavioral fingerprint for the crime in question.”

State v. Thompson, 8th Dist. Cuyahoga No. 109110, 2020-Ohio-5257, ¶ 36. “It is

evidence of signature, fingerprint-like characteristics unique enough ‘to show that

the crimes were committed by the same person.’” Hartman at ¶ 37, quoting

Weissenberger, Federal Evidence, Section 404.17 (7th Ed.2019).

In Hartman, for instance, Hartman was accused of raping an adult

female acquaintance who was asleep in her hotel room when the assault happened.

The state introduced the testimony of Hartman’s stepdaughter whom he was alleged

to have sexually assaulted while she was asleep in her bedroom. Hartman at ¶ 36.

The state argued that they were not introducing the testimony to suggest that

1 In their brief before this court, the state argues that the evidence was admissible to
show absence of mistake or accident. However, the state did not argue this below, either in
their motion or during the admissibility hearing. Further, Marshall never argued mistake
or accident, he denied the allegations. As mistake or accident was not an issue in this case
and was not raised, the state has waived that argument on appeal. Telecom Acquisition
Corp. I v. Lucic Ents., 8th Dist. Cuyahoga No. 102119, 2016-Ohio-1466, ¶ 57.
Hartman was the kind of person who assaults sleeping females, but that the

testimony proved that Hartman’s modus operandi was to sexually assault females

while they were asleep and that his modus operandi identified him as the

perpetrator. Id.

The Ohio Supreme Court disagreed. The court noted that “[t]here is

nothing fingerprint-like about molesting a child in a bed during the night.” Id. at

¶ 38. The court further found that there were no idiosyncratic features of the child

molestation that were also present in the alleged rape. Id. Finally, the court noted

that identity was not an issue in the case since the victim, E.W., knew who Hartman

was before the assault. Id. at ¶ 39.

In the instant case, the state’s introduction of other acts to

demonstrate modus operandi was a subterfuge in order to introduce otherwise

prohibited behavioral evidence and must be rejected. T.T.’s testimony did not

establish a behavior fingerprint linking K.H.’s assaults with T.T.’s interactions with

Marshall. T.T. merely testified that Marshall digitally penetrated her anus during

sex. There is nothing idiosyncratic about digital anal penetration during intercourse

such that it can only be used to identify Marshall. Furthermore, as in Hartman,

Marshall’s identity was never in question. K.H. identified him as the perpetrator

from the outset.

The state’s introduction of T.T.’s testimony served just one purpose,

i.e., to establish that Marshall was the type of person who would digitally penetrate
a sexual partner’s anus. Therefore, T.T.’s testimony was not admissible under

Evid.R. 404(B) or R.C. 2945.59 in order to prove modus operandi.

The state further argued that the evidence was admissible to show

Marshall’s plan. Evidence of a “plan” typically involves “other acts” that “are linked

to the present crime because they are carried out in furtherance of the same overall

plan.” Id. at ¶ 40. Plan evidence typically contemplates a larger criminal scheme of

which the alleged crime is just a portion. Id. T.T.’s testimony did not establish a

larger criminal scheme culminating in the rape of K.H. Testimony about Marshall’s

consensual sexual relationship with an adult partner had no link whatsoever to his

alleged behavior with K.H. nor did it constitute a crime or portion of the crime.

Therefore, T.T.’s testimony was not admissible under Evid.R. 404(B) or R.C.

2945.59 in order to prove plan.

The state’s failure to establish T.T.’s testimony as either a modus

operandi or a plan renders the evidence inadmissible. Furthermore, the state must

show that modus operandi or plan were material issues of the case against Marshall.

This was a single-victim case in which all the testimony was about Marshall’s actions

with K.H. This was not a case where the victim could not identify her perpetrator

and testimony was necessary to establish the identity of the person who attacked

her. Further, there was no evidence presented at trial to establish an overarching

criminal plan that culminated in K.H.’s sexual assault. Consequently, the state failed

to demonstrate that the modus operandi or plan was material.
 Consequently, the trial court erred in admitting T.T.’s testimony as a

matter of law.

This does not end our analysis, however. When other acts evidence is

erroneously admitted, reversal of the conviction and a new trial is only warranted if

it can be shown that: 1) Marshall was prejudiced by the admission of the improper

evidence, and 2) that the error was not harmless beyond a reasonable doubt. State

v. Miller, 8th Dist. Cuyahoga No. 101225, 2015-Ohio-519, ¶ 33.

“[A] judgment of conviction should not be reversed because of ‘the

admission * * * of any evidence offered against * * * the accused unless it

affirmatively appears on the record that the accused was or may have been

prejudiced thereby.’” State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24

N.E.3d 1153, ¶ 27, citing State v. Crawford, 32 Ohio St.2d 254, 255, 291 N.E.2d 450

(1972), quoting R.C. 2945.83(C). “In making these determinations, an appellate

court ‘must excise the improper evidence from the record and then look to the

remaining evidence’ for either overwhelming evidence of guilt or some other indicia

that the error did not contribute to the accused’s conviction.” State v. Lavette, 8th

Dist. Cuyahoga No. 106169, 2019-Ohio-145, ¶ 47, citing Morris, 141 Ohio St.3d 399

at ¶ 29.

In the instant case, we find that, after removal of the offending

testimony, there was overwhelming evidence of Marshall’s guilt. As noted

previously, K.H.’s testimony established what occurred and that along with the

testimony of other witnesses established overwhelming evidence of guilt.
 Although the trial court erred in admitting T.T.’s evidence, we find

that there was overwhelming evidence of Marshall’s guilt and therefore, the

admission of T.T.’s testimony was harmless error. Marshall’s second assignment of

error is overruled.

Jury Instructions

In his third assignment of error, Marshall argues that the trial court

erred in failing to give a limiting instruction for the use of Evid.R. 404(B) evidence.

We disagree.

Standard of Review

“The giving of jury instructions is typically within the sound

discretion of the trial court, and we review it for an abuse of discretion.” State v.

Davis, 8th Dist. Cuyahoga No. 109890, 2021-Ohio-2311, ¶ 29. “An abuse of

discretion connotes a decision that is unreasonable, arbitrary, or unconscionable.”

Cleveland v. Cornely, 8th Dist. Cuyahoga No. 109556, 2021-Ohio-689, ¶ 17, citing

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

Law and Analysis

In the instant case, Marshall did not object to the jury instructions. A

party waives on appeal any issue regarding jury instructions if they fail to object

before the instructions are given to the jury. Crim.R. 30(A). As Marshall failed to

object to the proposed jury instructions, he has waived all but plain error.

“Where the defense fails to request a limiting instruction on other acts

evidence, the trial court’s failure to give such an instruction is not plain error where
nothing suggests the jury used other acts evidence to convict the defendant because

he was a bad person.” State v. Jeffries, 8th Dist. Cuyahoga No. 105379, 2018-Ohio-

162 at ¶ 30.

As we have already found that there was overwhelming evidence of

guilt, and that Marshall was not prejudiced by the introduction of T.T.’s testimony,

we find that the failure to give jury instructions does not rise to the level of plain

error.

Therefore, Marshall’s third assignment of error is overruled.

Ineffective Assistance of Counsel

In his fourth assignment of error, Marshall argued that he received

ineffective assistance of counsel when his counsel failed to request a limiting

instruction after the introduction of other acts evidence. We disagree.

Law and Analysis

To establish ineffective assistance of counsel, a defendant must show

that their counsel’s performance fell below an objective standard of reasonableness

and that they were prejudiced by that deficient performance, such that but for their

counsel’s deficient performance, the outcome of the trial would have been different.

State v. Barnes, 8th Dist. Cuyahoga No. 92512, 2010-Ohio-1659, ¶ 67, citing

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

In conjunction with the idea that a trial court is not required to sua

sponte give a limiting instruction when other acts evidence is admitted, a lawyer is
not required to request a limiting instruction. “Depending on the nature of the other-

acts evidence and the context in which it is used, defense counsel may as a matter of

strategy wish to avoid highlighting the evidence for the jury.” Hartman, 161 Ohio

St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, at ¶ 67, citing State v. Schaim, 65 Ohio

St.3d 51, 61, 600 N.E.2d 661 (1992), fn. 9.

Marshall argues that his trial counsel forgot to request the limiting

instruction. He further argues that this was not a strategic decision because there

was no benefit to Marshall in allowing the jury to consider T.T.’s testimony as

probative of guilt. We disagree.

In order to find ineffective assistance of counsel, we must find that

Marshall’s lawyer’s conduct fell below an objective standard of reasonableness.

Barnes at ¶ 67. A counsel is presumed competent, and a defendant must overcome

the presumption that his counsel’s decisions were not the product of sound trial

strategy. State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 21,

citing State v. Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 36-37.

We are unable to find that counsel’s assistance fell below an objective standard of

reasonableness.

Contrary to Marshall’s argument, Marshall’s counsel was far from

forgetful in this case. His counsel filed multiple motions to exclude and limit

testimony, including but not limited to, a motion to exclude testimony from the rape

crisis center, a motion to exclude other acts evidence of an arrest in 2009 that did

not lead to a conviction, and a motion to limit the testimony of Det. Ambrose.
Counsel displayed a thorough grasp of the possible evidentiary pitfalls in this case

and sought to limit or minimize the effects of that evidence as much as possible.

Even if Marshall’s counsel were ineffective for failing to request a

limiting instruction, we cannot say that counsel’s failure rose to the level of prejudice

to Marshall. In order to show prejudice, Marshall must show that it is reasonably

probable that except for the errors of his counsel, the outcome of the proceedings

would have been different. State v. Garvin, 197 Ohio App.3d 453, 2011-Ohio-6617,

967 N.E.2d 1277, ¶ 57 (4th Dist.). As we have noted, there was overwhelming

evidence of Marshall’s guilt, and the nature of the admitted evidence was not so

egregious that it required a new trial. Therefore, the error did not so prejudice

Marshall that it affected the outcome.

We, therefore, find that Marshall’s counsel was not ineffective for

failing to request a limiting instruction for the other acts evidence.

Marshall’s fourth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR