[Cite as State v. Durst, 2020-Ohio-607.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      HURON COUNTY


State of Ohio                                       Court of Appeals No. H-18-019

        Appellee                                    Trial Court Nos. CRI2018-0112
                                                                     CRI2018-0113
v.                                                                   CRI2018-0338
                                                                     CRI2018-0405
McClain Lamar Durst
                                                    DECISION AND JUDGMENT
        Appellant
                                                    Decided: February 21, 2020

                                             *****

        James Joel Sitterly, Huron County Prosecuting Attorney, and
        Bambi S. Couch, Assistant Prosecuting Attorney, for appellee.

        Sarah A. Nation, for appellant.

                                             *****

        MAYLE, J.
                                           Introduction

        {¶ 1} This case involves four separate sexual assaults against four different

victims, by the defendant-appellant, McClain Lamar Durst. All of these assaults occurred

in the summer of 2017. The cases were consolidated and tried together before a jury in

the Huron County Court of Common Pleas over seven days, beginning on August 21,
2018. Durst was convicted of two counts of forcible rape, four counts of importuning,

four counts of unlawful sexual contact, and a single count of sexual battery. The trial

court sentenced Durst to serve 33 years in prison. On appeal, Durst raises a number of

trial-related errors. As set forth below, we affirm.

                              Facts and Procedural History

       {¶ 2} We describe each case in the order in which it was reported to law

enforcement, which is opposite of the order in which the incidents are alleged to have

occurred. The first two cases reported to the police involve twin sisters, T.S. and A.S.,

who were 15 at the time Durst assaulted them. The third case involves R.L., aged 20,

who was physically impaired at the time of the assault. The last case involves C.B., aged

16. At the time of these events, Durst was 28 years old.

Case Nos. 1 and 2 regarding victims T.S. and A.S.

       {¶ 3} T.S. and A.S. first met Durst on June 25, 2017, when the sisters were

walking from their home in Wakeman, Ohio, to a nearby carryout. Along the way, they

encountered Durst “standing by his car,” while visiting a neighbor. Durst identified

himself as “Zack” and asked A.S. for her phone number, which A.S. refused. Durst was

accompanied by his friend, “John,” and later that day, John “came up to” to T.S. at the

girls’ home and asked for her number. T.S. thought John was “cute,” and she gave him

her number.

       {¶ 4} T.S. began texting with John and Durst, and Durst asked for A.S.’s number.

Ultimately, T.S. gave Durst her sister’s “Snapchat” information so that he could




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communicate directly with her. T.S. and A.S. each told Durst that they were twins and

that they were 15 years old. Durst told the girls that he was “in his 20’s” and that he

lived in Sandusky.

       {¶ 5} Durst and A.S. began texting. On June 26, 2017, Durst asked A.S. if he and

John could come over. Many of Durst’s text messages that day and evening were sexual

in nature, like “U know I’m gonna kiss u right,” and “if we come [over] we are gonna

wanna mess around” and “Can I see some sexy pix.” A.S. told Durst that they could

come over but that Durst needed to park away from the house because her parents were

still awake.

       {¶ 6} T.S., A.S., and their friend, “H.,” met Durst and John outside, on the front

lawn, for about an hour. T.S. testified that Durst and A.S. disappeared for about 20

minutes into a wooded area that was adjacent to their home. When they returned, A.S.

told her sister that Durst “was trying to get her to suck his dick and kiss her.” After Durst

and John left, Durst texted A.S., “Are you mad at me,” and A.S. responded, “Sorry to

waste your time…” and “A lot happened too fast. Way too fast. I don’t know you like

that. * * * Im not that kind of person.” Durst responded, “if I kiss you kiss me back if we

start messing around Let it Go I guarantee you’ll enjoy it.* * * Just hook up with me one

time and we will see.”

       {¶ 7} Durst’s assault of A.S. occurred on July 5, 2017. At around 6:00 p.m. that

day, A.S. texted Durst for the “favor” of picking her up near her boyfriend’s house at

11:00 p.m. and bringing her home. In exchange for the ride, A.S. promised to “pay




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[Durst] back.” Durst replied, “you know what I want” and it’s “no[t] money.” A.S. told

Durst, “we can fuck before we get to my house * * * and you get what you want and I get

what I need and we are both happy.”

       {¶ 8} At trial, A.S. testified that she did not intend to have sex with Durst “at all”

and that she only wrote that “to get a ride home.” After picking her up, Durst drove A.S.

past her house and took her to Murray Road, about five miles away, in the country. A.S.

felt “scared.” When he pulled to the side of the road, A.S. opened the car door, intending

to run away, but he “pulled [her] back in.” A.S. testified that he “held me down and

[took] my pants off [and then] [h]e took his pants off as well, and started having sexual

intercourse [with me].” A.S. told him, “No, please stop.” At trial, A.S. verified that

Durst put his penis into her vagina, that he ejaculated, and that he exited the car afterward

to get a rag from his trunk. He then used the rag to clean both of them off.

       {¶ 9} Durst drove A.S. home around midnight. A.S. did not report the assault to

anyone except her best friend, “J.,” a couple of days later. She also threw her clothes

away, because they reminded her of the event. After the assault, A.S. and Durst texted a

number of times. In those texts, A.S. told Durst that she did not have feelings for him.

They also texted about a number of other topics such as her softball games and his

tattoos. The two stopped communicating after July 8, 2017.

       {¶ 10} Durst assaulted T.S. two weeks later. On July 19, 2017, around 11:00 p.m.,

T.S. and her friend, “H.,” were home alone, while T.S.’s parents were working and A.S.

was gone. Durst texted T.S. to ask where her sister was, and T.S. told him that she did




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not know. The texting between the two continued for a couple of hours. A written

dialogue of that conversation, as displayed on T.S.’s phone, was admitted as an exhibit.

It establishes that Durst repeatedly asked T.S., or alternatively T.S. and H., for “some

head,” i.e., fellatio, and that he wanted it “bad.” T.S. gave many responses, including

“nope,” “not gonna do that,” and “Nooo.” On the other hand, she also wrote that she

would “if you take us to Walmart first * * * but not * * * before.” Durst responded,

“Really. On the way.” T.S. testified that she gave Durst “mixed signals” so that “he

would stop asking.”

       {¶ 11} T.S. saw Durst drive by her home three times. In one of their last

exchanges, at 1:34 a.m., now July 20, 2017, Durst told T.S. to “Come out to the road”

and “let me know when your there [and] I’ll pull up.” T.S. responded, “Well im not

giving you head.” Durst assured T.S., “I wanna talk real fast and then we will see.” At

1:45 a.m., Durst texted that he was “at the end of your driveway.” Even though T.S. and

“H.” felt “kind of * * * scared,” they went outside “to see what he wanted.”

       {¶ 12} According to T.S., Durst told “H.” to go back inside because “he just

wanted to talk to T.S.” T.S. got into the front seat of Durst’s car, and Durst told her that

“he * * * just * * * wanted to talk[,] but then he kept asking [her] to give him head.” T.S.

“kept saying [that she] didn’t want to” because “that was nasty.” Durst continued to ask,

while also “jerking [himself] off,” (masturbating) and “grabbing” her waist and “pull[ing]

on [her] side to get [her] closer to him.” T.S. “kept pulling away, [but] he would pull

[her] back.” At one point, T.S.’s face and lips touched Durst’s exposed penis, and he




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tried to get T.S.’s hand “over there.” And then, according to T.S., after “pulling me

closer, like three times, he pulled me close and pulled my head down * * * [and] ha[d]

my neck down by his dick.” T.S. confirmed that Durst’s penis entered her mouth, for “a

couple of seconds.” T.S. “kept saying [she] didn’t want to” and “he let go after he got

* * * [her] mouth on his dick.” T.S. got out of the car, and Durst masturbated and told

T.S. to “keep it on the low,” meaning to “keep it to [herself].” Durst then left. T.S.

estimated that she was in Durst’s car for about ten minutes.

       {¶ 13} T.S. went inside, began to cry and called her grandmother, who told her “to

call the cops.” At 2:13 a.m., T.S. received a text message from Durst, who wrote, “U

mad at me.” T.S. responded “Not reall[y]” and “I mean u were forcing me.” Durst asked

when they could hang out again, and T.S. responded, “never * * * because that’s fucked

up.” Durst responded, “Im sorry I had u come out side.”

       {¶ 14} Huron County Sheriff Deputy Jaclyn Smith responded to the dispatch first

and was followed by Deputy John Vogel, both of whom testified at trial. While en route

to the sisters’ home, Vogel called his supervisor, Huron County Detective William

Duncan. Deputy Vogel advised Detective Duncan of an alleged sexual assault of a

minor, and Duncan asked that Vogel call him again if any evidence needed to be

collected. Otherwise, Detective Duncan would investigate the case the following day.

       {¶ 15} While the deputies were in the home, T.S. provided them with a picture

from her phone of the person she knew to be “Zack.” The picture was a screenshot of a

video that had been uploaded on the internet that T.S was able to capture. The deputies




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transported T.S. and H. to the sheriff’s department where each was interviewed and asked

to provide a written account of what happened. The deputies did not recommend that

T.S. undergo a sexual assault examination at the hospital because T.S. did not have any

physical signs of injury and because the officers determined that there would be no

recoverable forensic evidence based, in part, on T.S.’s report that Durst had not

ejaculated. At trial, T.S. and “H.” identified Durst as the person who came over that

night and assaulted T.S.

       {¶ 16} Detective Duncan shared the photo of Durst with other law enforcement

agencies, and a detective with the Sandusky Police Department recognized Durst as a

Sandusky resident. Detective Duncan then created a photo line-up that included Durst’s

photograph. T.S. identified Durst as her attacker, and a warrant was issued for Durst’s

arrest. Durst was arrested by officers with the Sandusky Police Department on July 22,

2017. At the time of the arrest, the police recovered a Samsung “Galaxy S7” cell phone

in his possession.

       {¶ 17} As part of the investigation, Detective Duncan consulted with Detective

Dennis Papineau of the Erie County Detective’s Bureau. At the time, Detective Papineau

was investigating a sexual assault claim that was alleged to have occurred in Erie County.

The incident was reported to his department on July 24, 2017 and involved C.B., the

victim in case No. 4 (see below).

       {¶ 18} Detective Papineau is well-trained in cell phone forensics and skilled at

recovering deleted files, such as messages and photos. In this case, however, he could




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not retrieve any relevant information from the cell phone found in Durst’s possession

because it was password-protected. Detective Duncan subpoenaed the cell phone service

provider, Sprint, and learned that the actual subscriber of the phone line attached to the

phone was Ryan Jenkins. Testimony at trial established that the phone was lent to Durst

by a third-party named Sandra Stahl who knew Jenkins and Durst.

       {¶ 19} Detective Papineau also obtained a search warrant to send the locked phone

to Cellebrite, a company in New Jersey that specializes in “deep extractions” on cell

phones. Cellebrite unlocked the phone and retrieved data of all sorts, including text

messages and videos. Detective Papineau received the phone back from the company,

along with an external storage device that contained text messages, photographs, images,

and videos from the phone. Detective Papineau created a report of data that was relevant

to his investigation (in case No. 4 regarding C.B.) and also provided the report to

Detective Duncan in Huron County to review for information relevant to his investigation

(in case Nos. 1 and 2 regarding T.S. and A.S.).

       {¶ 20} Detective Duncan identified messages between Durst and T.S. that matched

her description of events, and he identified other communications between Durst and an

unidentified girl, whom he suspected to be A.S. He asked T.S. and A.S. to come to the

station with their parents. During that January 9, 2018 meeting, Detective Duncan

asserted that, based upon the content of the communications, he thought there was a

second victim and he asked them to identify a particular cell phone number. Initially,

A.S. denied that she had any contact with Durst, but when her father verified that the




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number was hers, A.S. “began to weep,” and it became “obvious” that she had been

“involved with Mr. Durst.” A.S. then admitted to the events described above.

       {¶ 21} As to T.S., Durst was indicted on February 16, 2008 on five counts: rape,

in violation of R.C 2907.02(A)(2) and (B), a felony of the first degree (Count 1);

importuning, in violation of R.C. 2907.07(D)(1) and (F)(3), a felony of the fourth degree

(Count 2); unlawful sexual contact with a minor, in violation of R.C. 2907.04(A) and

(B)(3), a felony of the third degree (Count 3); unlawful sexual contact with a minor, in

violation of R.C. 2907.04(A) and (B)(4), a felony of the second degree (Count 4); and

importuning, in violation of R.C. 2907.07(B)(1) and (F)(3), a felony of the fourth degree

(Count 5). The jury convicted Durst on all five counts. The trial court sentenced Durst

to a mandatory sentence on Count 1, rape, of ten years and a mandatory sentence on

Count 2, importuning, of one year. The court merged Counts 3 and 4 with Count 1 and

merged Count 5 with Count 2.

       {¶ 22} Durst was indicted on the same counts, with respect to his assault of A.S.,

also on February 16, 2018, i.e., rape, in violation of R.C 2907.02(A)(2) and (B), a felony

of the first degree (Count 1); unlawful sexual contact with a minor, in violation of R.C.

2907.04(A) and (B)(4), a felony of the second degree (Count 2); unlawful sexual contact

with a minor, in violation of R.C. 2907.04(A) and (B)(3), a felony of the third degree

(Count 3); importuning, in violation of R.C. 2907.07(B)(1) and (F)(3), a felony of the

fourth degree (Count 4); and importuning, in violation of R.C. 2907.07(D)(1) and (F)(3),

a felony of the fourth degree (Count 5). The jury convicted Durst on Counts 2, 3, 4, and




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5. It found Durst not guilty as to Count 1, rape. The trial court sentenced Durst to seven

years in prison as to Count 2, unlawful sexual conduct with a minor, and mandatory

sentence of one year as to Count 5, importuning. It merged Count 3 with Count 2 and

merged Count 4 with Count 5.

Case No. 3 regarding victim R.L.

       {¶ 23} The state alleged that Durst assaulted R.L. on July 5, 2017—which is the

same day that he assaulted A.S.

       {¶ 24} R.L. testified that she first met Durst, who called himself “Mack,” online,

in 2016. She met him for the first time “in person” in April of 2017. At that time, Durst

and R.L.’s sister were involved in a consensual sexual relationship.

       {¶ 25} In May of 2017, R.L. had a very bad reaction to a flu vaccine and lost

feeling beneath her waist and the ability to walk. In June, R.L. was released from the

hospital and transferred to a nursing home in New London, Ohio to recover.

       {¶ 26} On July 5, 2017, while still recovering at the nursing home, R.L. was

contacted by Durst, who asked if she wanted to “hang out.” R.L. was pleased at the

chance to leave the nursing home, which was populated by mostly “elderly” people.

Around 4:00 p.m., Durst arrived. R.L. testified that she and Durst signed a log at the time

she left the facility, and the log was admitted as an exhibit at trial. Durst helped R.L.,

who was reliant on a wheelchair, to get into his car.

       {¶ 27} R.L. asked to visit her sister, and Durst agreed to take her. Along the way,

Durst “kept telling [R.L.] that he always wanted [her] [and kept] asking [for] a blow job.”




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R.L. “kept telling him no.” Despite that, Durst pulled the car into a drive in the middle of

cornfields, somewhere in Clarksfield, Ohio. Durst said, “come on, let’s do it” even

though “he knew [she] couldn’t feel anything.” Durst then “got on top of” R.L. and

“[took] off [her] pants * * * [a]nd then he just stuck his penis in [R.L.], and just had sex

with [her].” Durst ejaculated. R.L. testified, “I didn’t really know what to say, so I just

kind of let him do it, because I didn’t have the strength to kick him off.” Afterward,

Durst messaged R.L.’s sister to tell her that they were coming to her house.

       {¶ 28} Once there, R.L. asked her sister to take her to the bathroom so she “could

tell her” what happened. The sister advised R.L. that if she was “not comfortable saying

anything, [then] don’t say anything.” Despite being afraid, R.L. allowed Durst to return

her to the nursing home “[b]ecause [she] had no other ride home.” The two exchanged

few words on the way back, and R.L. had no contact with Durst after July 5, 2017.

       {¶ 29} Initially, R.L. did not report the assault to the police. But, after R.L.

learned Durst had also assaulted her friend, T.S., she changed her mind. R.L. then

reported the assault to Detective Duncan in January of 2018 while both were at the Huron

County Courthouse with respect to the criminal case against Durst involving T.S. and

A.S.

       {¶ 30} With respect to R.L., Durst was indicted on April 27, 2018 on two counts:

rape, in violation of R.C. 2907.02(A)(1)(c) and (B), a felony of the first degree (Count 1)

and sexual battery, in violation of R.C. 2907.03(A)(2) and (B), a felony of the third

degree (Count 2). The jury convicted Durst as to Count 2, and the trial court sentenced




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him to serve four years in prison. The jury found Durst not guilty of rape, as set forth in

Count 1.

Case No. 4 regarding victim C.B.

       {¶ 31} The fourth and final victim to report that she had been assaulted by Durst

was 16-year-old C.B. C.B. first met Durst on July 12, 2017, the same day of the assault,

through a mutual friend, Kodi Schambers, who had previously met Durst in person “once

or twice.”1 Schambers had spent the previous night at C.B.’s house and had been

“snapchatting” with Durst during the sleepover. At 5:05 a.m., C.B. and Schambers left

C.B.’s Bellevue, Ohio, home in Huron County, to walk to a nearby carryout for coffee.

Durst pulled up alongside the two of them in his car. Durst, calling himself “Mack,” told

them to “get in the car * * * to hangout.” C.B. was “concerned” about getting into the car

because she did not know Durst and because she had to work in a few hours, but she

“trust[ed]” Schambers, who did know him, and “figured it was okay.”

       {¶ 32} Within two or three minutes into their trip, Bellevue Police Officer Frank

Sirse pulled Durst over for a moving violation and for having license plates that were

registered to a different car. As Officer Sirse approached the car, he noticed that Durst

was taping the officer from his cell phone. Segments of the video from that traffic stop

were played for the jury. During the stop, Durst can be heard complaining of “police



1
  Schambers, who is transgendered, is the subject of Durst’s second assignment of error.
We refer to Schambers with female pronouns, consistent with her preference, and have
altered her gender designations in the transcript, where appropriate.




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harassment.” A second officer, Michael Wagner, arrived and addressed C.B., who was in

the back of Durst’s vehicle. On the tape, Office Wagner can be heard saying to C.B.,

“[your] mom has no idea where you’re at” and wondering aloud why C.B. “got in the car

with a 28 year-old.” C.B. told Officer Wagner that she was familiar with the Bellevue

curfew, that she was not in violation of that curfew, and that she was “done talking” to

him. Durst told the officer that “[w]e were just going to the gas station. That’s all we

were doing.” After verifying Durst’s ownership of the vehicle, the police allowed them

to proceed. At trial, C.B. said that she was “angry” with the police whom she thought

were “trying to get [her] in trouble for no reason.”

       {¶ 33} After they were allowed to proceed, Durst, C.B. and Schambers “drove

around” for about ninety minutes. During that time, Durst showed them videos on his

phone of him having sex with women, which “disgusted” C.B. He also bragged about the

size of his penis and asked them to feel how soft his boxer shorts were. Around 7:00

a.m., Durst pulled into Resthaven Wildlife, a nature preserve in Castalia, Ohio, located in

Erie County. Durst parked “all the way back to where it dead ends,” near a pond. The

three talked for a while and drank beer that Durst provided. C.B. testified that Durst had

“his hands * * * all over [her]” and repeatedly tried to get Schambers to leave the two of

them alone. Durst also became physically aggressive with C.B. She testified, “[a]t one

point, he did bend me over * * * while * * * fully clothed [and] thrusted his hips into

mine.” C.B. “kept telling [Schambers] to stay with [her].” C.B. also led them away from

the car to the pond to listen to the geese. Near the pond, Durst picked C.B. up, told




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Schambers to stay back, and carried C.B. to the car. C.B. told him to put her down, but

Durst kept telling her to “relax.” Schambers followed. Durst put C.B. into the back of

the car, and “was laying on top of C.B. while he was negotiating with [Schambers].”

Durst offered to buy Schambers breakfast and cigarettes if she would leave them alone.

Schambers testified that she set two timers for five minutes, one she took with her and

one she left in the car. She told Durst, “that’s how long [you have].” Schambers did not

walk too far away “just in case.”

       {¶ 34} After Schambers walked away, Durst tried getting C.B.’s pants off, while

C.B. “kept trying to pull them back on.” When C.B. heard the stitches of her pants start

to rip, she “let go [because she] didn’t want [her] pants to be torn,” but she told him “to

stop, [and] to get off” of her and that she “didn’t want [her] clothes off.” Durst acted

“like it was a game * * * and would smile * * * like it was perfectly okay.” Durst then

tried to get C.B.’s underwear off, and she told him, “my underwear [isn’t] coming off.”

Durst responded, “it’s fine, I’ll just move them to the side.” C.B. tried to get out of the

car, but he “pushed [her] back down.” C.B. testified that she “froze * * * [and] saw that

[she] wasn’t going to win,” but she was also “relying on [Schamber’s] timer” and

“hoping the time was going a lot faster than it was.”

       {¶ 35} C.B. testified that “[Durst] proceeded to put his penis in me and rape me,

and he held me down.” During the rape, Durst “had both his hands on [C.B.’s] wrists,”

and at one point he had “one hand on [her] throat.” When the timer in the car went off,

C.B. told Durst that Schambers would be back soon and that “he needed to get off me.”




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According to C.B., Schambers did return and said, “time’s up” and “just so, you know,

there’s a guy in a truck right over there.” At that point, Durst “did back up and started to

pull his pants up,” and C.B. exited the vehicle.

       {¶ 36} Within five minutes, the three left the park, and headed back toward C.B.’s

home. Along the way, Durst stopped at a carry-out and at Burger King to buy the

promised cigarettes and breakfast. While Durst was in the carryout, C.B. told Schambers

what happened, and Schambers told her, “you know that was rape, right?” C.B. said she

was “speechless” and in “shock.” She was also very sore and bled for four days.

       {¶ 37} In the week or so after the rape, Durst “sent about 50” Snapchat and

Facebook messages a day to C.B., wanting to know what she was doing, wanting to hang

out, and telling her he wanted to see her again. C.B. ignored the messages and ultimately

blocked him from contacting her.

       {¶ 38} Initially, C.B. told no one, besides Schambers, about the rape. Later in the

month, C.B. told a friend, who encouraged her to tell her parents. While on a walk, C.B.

told her mother, and together, they told C.B.’s father, who reported the rape to the Erie

County Sheriff’s Department on July 24, 2017. As part of the investigation, C.B. was

interviewed by the Huron County Children’s Services Department. She also provided the

clothing she had been wearing that day to the sheriff’s deputies.

       {¶ 39} C.B. also reported the rape to her gynecologist in August. As “reality set

in,” C.B. worried that she could have caught a sexually transmitted disease from Durst,

and she was also experiencing “really bad cramping.” C.B.’s doctor tested her “for




15.
everything” and put her on an anti-anxiety medicine. On the day of her appointment,

C.B. learned that she was pregnant but also that she was in the process of miscarrying the

baby, which happened over the course of one or two days. No forensic evidence from the

rape was collected, and C.B.’s claim—that she was pregnant—was not confirmed at trial.

       {¶ 40} The case was assigned to Detective Papineau with the Erie County

Detective’s Bureau. As discussed above, Detective Papineau discovered video evidence

on a cell phone that supported C.B.’s timeline of events. Specifically, he located the

video of Durst filming the traffic stop by Bellevue Police and videos of Durst having sex

with women (that he allegedly showed to C.B. as he drove her to the nature preserve).

Detective Papineau also obtained a video from Burger King, which showed Durst in his

vehicle going through the drive-through line on the day of the rape.

       {¶ 41} With respect to C.B., Durst was indicted on May 25, 2018 on a single count

of rape, in violation of R.C. 2907.02(A)(2) and (B), a felony of the first degree. The jury

eventually convicted Durst, as charged, and the trial court sentenced him to a mandatory

sentence of ten years in prison.

       {¶ 42} Given that all four cases involved victims who lived in Huron County,

incidents that took place over the summer of 2017, and the same critical piece of

evidence, i.e., the cell phone, the cases were consolidated. At the conclusion of the trial

and after various convictions and sentences were imposed, the court ordered that all

sentences would run consecutively to one another, for a total of 33 years in prison. The

court also placed Durst on mandatory postrelease control for five years, ordered Durst to




16.
pay $50 in restitution to C.B., and classified him as a Tier III sex offender under R.C.

Chapter 2950, requiring him to register with the local county sheriff’s office in person

every 90 days for his lifetime and subjecting him to community notification.

       {¶ 43} Durst appealed, and through his appellate counsel, he raises five

assignments for error for our review:

              I. The trial court erred in not granting appellant’s motion for a

       mistrial.

              II. The trial court erred in permitting the state to mischaracterize

       evidence.

              III. The trial court erred in permitting remote testimony by a

       witness.

              IV. The defendant’s conviction is based upon insufficient evidence

       and his conviction is against the manifest weight of the evidence and the

       court erred in denying defendant’s Rule 29 motion.

              V. Defense counsel’s performance of his duties was deficient in that

       he made errors so serious that he failed to function as the counsel

       guaranteed by the Sixth Amendment and Appellant was prejudiced by said

       errors. [sic]




17.
       1. The trial court did not err in denying Durst’s motion for a mistrial.

       {¶ 44} In his first assignment of error, Durst argues that the trial court erred when

it denied his motion for a mistrial, which he made after the jury heard testimony

regarding him selling heroin. He claims that such testimony was “highly prejudicial” and

improper evidence of “other crimes, wrongs, or acts,” in violation of Evid.R. 404(B).

       {¶ 45} A mistrial must be declared “only when the ends of justice so require and a

fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1

(1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463, 93 U.S. 1066, 35 L.E.2d 425

(1973). In analyzing whether a defendant was deprived of a fair trial, “an appellate court

must determine whether, absent the improper remarks, the jury would have found the

appellant guilty beyond a reasonable doubt.” Columbus v. Aleshire, 187 Ohio App.3d

660, 2010-Ohio-2773, 933 N.E.2d 317, ¶ 42 (10th Dist.), citing State v. Maurer, 15 Ohio

St.3d 239, 267, 473 N.E.2d 768 (1984).

       {¶ 46} Review of a trial court’s decision denying a motion for mistrial ordinarily

falls under an abuse of discretion standard. State v. Rossbach, 6th Dist. Lucas No.

L-09-1300, 2011-Ohio-281, ¶ 39, citing State v. Sage, 31 Ohio St.3d 173, 182, 510

N.E.2d 343 (1987). “Abuse of discretion” means that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).




18.
       {¶ 47} When a defendant moves for a mistrial on the basis of improper testimony

related to “other crimes, wrongs, or acts” under Evid.R. 404(B), a trial court does not

abuse its discretion by denying the motion if the reference to other acts was brief and

isolated, the remarks were followed by a curative instruction, and the likelihood of

prejudice is low. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d

242, ¶ 174-175, citing State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995)

(Affirming the denial of a mistrial because “the reference to the defendant’s prior arrests

was fleeting and was promptly followed by a curative instruction.”).

       {¶ 48} In this case, the reference to “prior bad acts” occurred under direct

examination by the state of R.L, the victim in case No. 3, while the state was establishing

when R.L. first met Durst “in person.” The record indicates that the reference was brief

and isolated:

                Q. And, you go to this hotel, what happens?

                A. We hangout at the hotel.

                Q. And, what, besides hanging out – what do you mean “hangout”,

       what do you do?

                A. He starts becoming sexual with my sister.

                Q. And what happens then?

                A. When we were about to leave, my sister had to use the bathroom,

       and he was selling heroin or something.

                [Durst’s Counsel]: Objection




19.
       {¶ 49} After a sidebar conference and a break for Durst to consult privately with

his counsel, Durst requested a mistrial or, alternatively, a curative instruction from the

court. The court denied the requested mistrial but instructed the jury to “disregard the

last question answer [sic], to not consider them for any purpose in your deliberations.

They are not related to this case.”

       {¶ 50} We find it unlikely that a single, errant comment regarding Durst selling

drugs had any impact on the outcome of the trial. Moreover, defense counsel promptly

objected, the objection was sustained, and the jury was instructed to disregard the

testimony. We must presume that the jury followed the trial court’s instructions. See

State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994). For these reasons, we find

that the trial court did not abuse its discretion by denying Durst’s motion for a mistrial,

and his first assignment of error is found not well-taken.

               II. Durst was not prejudiced by the prosecutor’s
           forecast of what the evidence would show during opening
                   statements, which proved to be inaccurate.

       {¶ 51} In his second assignment of error, Durst complains that he was prejudiced

and prevented from having a fair trial because the state mischaracterized evidence

relating to case No. 4 (involving victim C.B.) during its opening statement.

       {¶ 52} Because defense counsel did not object to the prosecutor’s opening

statement, we must review for plain error only. In order to prevail on a claim governed

by the plain error standard, Durst must demonstrate that the outcome of his trial would

clearly have been different, but for the prosecutor’s statements. See State v. Waddell, 75




20.
Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Notice of plain error is to be taken with

the utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph two of the syllabus.

      {¶ 53} During the opening statement, the prosecutor stated that before C.B.’s rape,

Schambers left Durst and C.B. alone in the back seat of Durst’s car, and promised to

return in five minutes. The prosecutor then stated:

               And when [Schambers returns], [she] can see that the defendant is

      having - - he’s having sex with [C.B.] in the back seat of the car.

               [Schambers] goes around to the back, because the defendant doesn’t

      stop. [She] goes around to the back of the car and grabs the defendant and

      pulls him backwards and said, You need to stop. We need to go home.

      There’s another car coming. And there was. Somebody else was arriving.

      With that the rape ends. (Vol. I, Opening Statement at 248; emphasis

      added).

      {¶ 54} The prosecutor’s statement, however, did not match Schambers’

testimony on that point. Schambers testified that, when she returned to the car and

observed Durst on top of C.B., she, i.e., Schambers, “didn’t touch him, but * * *

told him to get off of her.” The point was made again during re-cross

examination:




21.
              Q. Ms. Schambers, you say you didn’t physically intervene when

       you returned and found them in that position? * * *

              A. No.

              Q. Okay. You didn’t grab [Durst] from, like, the back of his shirt

       and try to physically pull him off?

              A. Not that I can recall.

              Q. If somebody else testified to that, they’re wrong.

              A. I didn’t say that.

       {¶ 55} Although the state acknowledges that the prosecutor’s assertion during

opening statements was not a fair characterization of the evidence, it argues that the

prosecutor’s overstatement did not prejudice Durst. We agree.

       {¶ 56} Before opening statements began, the trial court properly instructed the jury

that opening statements were not evidence, but were merely a “preview” of what each

side believed the evidence would show. See, e.g., State v. Frazier, 73 Ohio St.3d 323,

338, 652 N.E.2d 1000 (1995). We find that the instruction, combined with Schambers’

clear testimony—that she had no physical contact with Durst—cured any overstatement

by the prosecutor. Accord State v. Morgan, 2d Dist. Montgomery No. 19416, 2004-

Ohio-461, ¶ 41 (Overstatement by prosecutor that hair sample was an “identical” match

to the defendant was not prejudicial where court instructed jury that opening statements

were not evidence and where crime lab technician disputed that hair sample was




22.
identical.). Moreover, whether Schambers made any physical contact with Durst is

irrelevant to the state’s rape case against him.

       {¶ 57} We, therefore, find no plain error, and Durst’s second assignment of error

is not well-taken.

  III. Although the state failed to establish the necessity of calling a witness
         remotely, any error in allowing him to testify was harmless.

       {¶ 58} In his third assignment of error, Durst claims that the trial court violated his

constitutional right to confrontation when it permitted Brian Stofik, a Cellebrite techno-

forensic specialist who searched Durst’s cell phone, to testify remotely. Stofik appeared

at trial as a live witness, by video link, from Parsippany, New Jersey, where Cellebrite is

located.

       {¶ 59} Stofik testified that he unlocked the cell phone, extracted data from it, and

then duplicated and transferred the data to a password-protected external drive. Stofic

did not, however, review the contents of the data. Stofik also testified as to the processes

used by Cellebrite to ensure the integrity of the data and to protect the phone while it was

transported between Ohio and New Jersey.

       {¶ 60} At trial, Durst argued that allowing Stofik to testify remotely would deprive

him of his constitutional right to confront Stofik “face-to-face.” The trial court allowed

the witness to testify but advised that, “[going] forward” if Durst had “particularized

concerns” about the witness’s testimony, the matter could be revisited. No further

objection was made.




23.
       {¶ 61} A criminal defendant has a right to confront witnesses under both the

federal and Ohio constitutions. The Sixth Amendment to the United States Constitution

provides, “[i]n all criminal prosecutions the accused shall enjoy the right * * * to be

confronted with the witnesses against him.” In addition, Article I, Section 10 of the Ohio

Constitution states that, “[i]n any trial, in any court, the party accused shall be allowed

* * * to meet the witnesses face to face * * *.” While the Ohio Constitution provides its

own right of confrontation, that right is no broader than that created under federal law.

State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.

       {¶ 62} A defendant’s right of confrontation consists of four “elements”: the

witness’s “physical presence” in court; (2) the witness’s testimony under oath, which

impresses upon the witness “the seriousness of the matter and guard[s] against the lie by

the possibility of a penalty for perjury;” (3) the witness being subjected to cross-

examination, “the greatest legal engine ever invented for the discovery of the truth;” and

(4) providing the factfinder with the ability “to observe the demeanor of the witness in

making his statement, thus aiding the jury in assessing [the witness’s] credibility.”

(Citations omitted.) Maryland v. Craig, 497 U.S. 836, 845-846, 110 S.Ct. 3157, 111

L.Ed.2d 666 (1990). Although “the Confrontation Clause reflects a preference for face-

to-face confrontation at trial,” that “preference must occasionally give way to

considerations of public policy and the necessities of the case.” Id. at 849; see also State

v. Self, 56 Ohio St.3d 73, 564 N.E.2d 446 (1990) (“[L]iteral face-to-face confrontation is




24.
not the sine qua non of the confrontation right.” Rather, “its underlying value is

grounded upon the opportunity to observe and to cross-examine.”).

       {¶ 63} To qualify as an exception to the face-to-face confrontation requirement,

the procedure must “(1) be justified, on a case-specific finding, based on important state

interests, public policies, or necessities of the case and (2) must satisfy the other three

elements of confrontation — oath, cross-examination, and observation of the witness’s

demeanor.” State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 18,

quoting Harrell v. State, 709 So.2d 1364, 1369 (Fla.1998), citing Craig at 849-851.

       {¶ 64} Here, Durst argues that the state failed to establish that Stofik’s absence

from court was “justified.” That is, the state did not demonstrate that Stofik was

somehow prevented from testifying in person and therefore “unavailable.”

       {¶ 65} This same issue was addressed in State v. Oliver, 8th Dist. Cuyahoga No.

106305, 2018-Ohio-3667. In that case, the record indicated that the witness to a physical

assault (that occurred in Ohio) was unemployed and living in Florida. The court of

appeals found that the witness should not have been allowed to testify via “Skype”

because the “unavailability threshold was not met.” The court found that mere

“inconvenience[]” to the witness, standing alone, “is an insufficient justification” to

excuse the witness from testifying in person. Id. at ¶ 24; see also State v. Sheline, 8th

Dist. Cuyahoga No. 196649, 2019-Ohio-528 (witness who was in California at time of

trial was deemed unavailable where state “attempted” but was “unsuccessful” at making

arrangements to fly her back for trial).




25.
       {¶ 66} Similarly here, we find that Stofik should not have been permitted to testify

remotely because the state did not establish that his absence was “justified,” i.e., that he

was unavailable to appear in person. But, in this case, we find that this was harmless

error under Crim.R. 52(A). (“[A]ny error, defect, irregularity, or variance which does not

affect substantial rights shall be disregarded.”).

       {¶ 67} To find an error harmless, a reviewing court must be able to declare a belief

that the error was harmless beyond a reasonable doubt. State v. Lytle, 48 Ohio St.2d 391,

403, 358 N.E.2d 623 (1976). A reviewing court may overlook an error where the

remaining admissible evidence, standing alone, constitutes “overwhelming” proof of a

defendant’s guilt. State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983).

       {¶ 68} Here, Durst does not raise any concerns about the actual substance of

Stofik’s testimony, nor does he challenge the admissibility of the cell phone, the data

downloaded from the phone, or the chain of custody of the phone once it was confiscated.

Moreover, Stofik prepared a “witness statement,” which mirrored his testimony at trial

and which was admitted without objection as state’s exhibit No. 8. Given that Durst does

not challenge the admissibility of these items, we find that the admission of Stofik’s

testimony—without a preliminary showing of unavailability by the state—was harmless

error. Accord Oliver at ¶ 25 (Testimony via Skype was cumulative of other witness’s live

testimony and therefore harmless). We therefore find that Durst’s third assignment of

error is not well-taken.




26.
              IV. The convictions are supported by the sufficiency
                         and weight of the evidence.

       {¶ 69} In his fourth assignment of error, Durst claims that “there is insufficient

evidence to sustain a conviction, [that] the conviction is against the manifest weight of

the evidence and [that] the Court erred in failing to grant the Rule 29 Motion to Acquit.”

       Under the Rules of Appellate Procedure, an appellant must establish each assigned

error through an argument supported by citations to legal authorities and facts in the

record. App.R. 16(A)(7). If an appellant fails to advance such an argument, a court of

appeals may disregard the assignment of error. App.R. 12(A)(2). In other words,

appellate courts “are not obligated to search the record or formulate legal arguments on

behalf of the parties, because appellate courts do not sit as self-directed boards of legal

inquiry and research, but [preside] essentially as arbiters of legal questions presented and

argued by the parties before them.” (Citations omitted). Risner v. Ohio Dep’t of Nat.

Res., Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28.

       {¶ 70} Durst fails to make any specific arguments in support of this assignment of

error. Indeed, he does not even mention the facts of his case, much less identify what

evidence is lacking.

       {¶ 71} Accordingly, pursuant to App. R. 12(A)(2), we find Durst’s fourth

assignment of error not well-taken.




27.
                 V. Durst received effective assistance of trial counsel.

       {¶ 72} In his final assignment of error, Durst claims that he received ineffective

assistance of trial counsel. To establish his claim, Durst must show “(1) deficient

performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Perez, 124

Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.

       {¶ 73} A reviewing court must determine whether trial counsel’s assistance fell

below an objective standard of reasonable advocacy. Bradley at 141-142. Moreover, the

deficient performance must have been so serious that, “were it not for counsel’s errors,

the result of the trial would have been different.” Id. at 141-142.

       {¶ 74} Generally, defense counsel’s trial tactics and strategies do not constitute

ineffective assistance. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980),

citing Lytle, 48 Ohio at 396, 358 N.E.2d 623. Trial strategy “must be accorded deference

and cannot be examined through the distorting effect of hindsight.” State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115. “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Strickland at 691.




28.
         {¶ 75} Durst faults his trial counsel for failing “to present witnesses provided to

him by [Durst] and failing “to submit exhibits presented to him by [Durst].” “[C]ounsel’s

decision whether to call a witness falls within the rubric of trial strategy and will not be

second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490, 739

N.E.2d 749 (2001). Further, Durst fails to identify the witnesses he would have called

and the evidence he would have offered, much less explain how counsel’s failure to

proffer them prejudiced him.

         {¶ 76} Durst also complains that his counsel failed to call him as a witness, which

deprived him of the opportunity to tell “his side of the story.” The record establishes that

Durst was advised of his right to testify in his own defense and that he waived that right.2

At the close of the state’s case-in-chief, defense counsel told the court, outside the

presence of the jury, that he and Durst had discussed whether Durst would testify in his

own defense and that they were “going to talk about [it] again very briefly” before

making a decision. After a recess, Durst confirmed that he understood he could testify if

he wished to, that he had discussed the risks and rewards of testifying with his lawyer,

and that, based on those risks and rewards, he had decided not to testify. The decision of

whether to have the defendant testify is a “tactical decision” that remains within the

purview of trial strategy. State v. Carpenter, 6th Dist. No. E-00-033, 2002-Ohio-2266,




2
    Durst does not attack the legitimacy of his waiver of his right to testify.



29.
¶ 68, citing id., quoting Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 32

L.Ed.2d 358 (1972).

       {¶ 77} For these reasons, we find that trial counsel’s performance was neither

deficient nor prejudicial, and Durst’s fifth assignment of error is not well-taken.

                                        Conclusion

       {¶ 78} Based on the foregoing, the September 6, 2018 judgments of the Huron

County Court of Common Pleas are affirmed. Durst is ordered to pay the costs of this

appeal pursuant to App.R. 24(A).


                                                                        Judgments affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                            _______________________________
                                                            JUDGE
Christine E. Mayle, J.
                                                _______________________________
Gene A. Zmuda, P.J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




30.
