[Cite as State v. Crist, 2016-Ohio-7750.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                          Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. 15-CA-63
SHONN A. CRIST                                  :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Fairfield County
                                                    Court of Common Pleas, Case No.
                                                    2015CR135



JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             November 14, 2016


APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

GREGG MARX                                          DAVID SAMS
Prosecuting Attorney                                P.O. Box 40
ANDREA GREEN                                        West Jefferson, OH 43162
Assistant Prosecutor
239 W. Main Street, Ste. 101
Lancaster, OH 43130
Fairfield County, Case No. 15-CA-63                                                          2

Gwin, P.J.

        {¶1}   Appellant Shonn A. Crist [“Crist”] appeals his convictions after a jury trial in

the Fairfield County Court of Common Pleas on three counts of Sexual Battery, in violation

of R.C. 2907.03(A)(5)&(B), felonies of the third degree, and one count of Rape, in violation

of R.C. 2907.02(A)(2)&(B), a felony of the first degree.

                                    Facts and Procedural History

        {¶2}   On April 10, 2015, the Fairfield County Grand Jury indicted Crist on three

counts of Sexual Battery, in violation of R.C. 2907.03(A)(5)&(B), felonies of the third

degree, and one count of Rape, in violation of R.C. 2907.02(A)(2)&(B), a felony of the first

degree.

        {¶3}   On October 12, 2015, the state filed a motion for proposed jury instruction

regarding the element of force of a parent or other authority figure within the offense of

Rape. Crist's trial counsel filed no motions requesting or opposing specific jury instructions.

        {¶4}   This matter proceeded to a jury trial on October 20, 2015. Prior to any

evidence being presented, the trial court allowed the specific jury instruction on force

because the allegations made in the case involved parent and child. Crist did not object.

        {¶5}   The following evidence was presented during Crist’s jury trial.

        {¶6}   Crist is the biological father to S.C., b. Feb. 12, 1997. (4T. at 582). S.C.

began living with Crist full time when she was a freshman in high school at age 14. (3T.

at 526). S.C. moved in with Crist because her living situation with her mother was

chaotic, and Crist's home was more stable. Crist began grooming S.C. Crist told S.C.

that he needed to teach her how to be affectionate. He would excessively hug her, cuddle

with her on the couch or in his bed, kiss her on the lips and ask her to give him kisses.
Fairfield County, Case No. 15-CA-63                                                       3


Crist would discuss with S.C. topics such as sex, pornography, and masturbation, and

would tell her that she had nice breasts. Crist gave S.C. money to go purchase a new

bra, instructed her as to what kind of bra to purchase, and asked her to model it for him

when she returned home. (3T. at 534-537).

       {¶7}   The first incident of sexual conduct occurred in March 2013. Crist gave

S.C. money because she had gotten good grades. (3T. at 541 – 542). He took her

shopping, and when they returned home, Crist kissed S.C., and engaged in both sexual

contact and conduct with her while in the garage. Once inside the home, Crist led S.C.

to his bedroom and engaged in further sexual conduct with her, and instructed her as to

what she was to do. (3T. at 545 – 549). S.C. did not know how to think, feel or react to

what Crist had done to her.

       {¶8}   A few days later, S.C. asked her maternal grandmother if she could stay

the night with her for Easter, because she wanted to get out of Crist's house. Once at

her grandmother's home, S.C. told her grandmother what Crist had done to her, and a

police report was filed. (2T. at 554). Fairfield County Child Protective Services (CPS)

was notified, and S.C. underwent a physical exam at Nationwide Children's Hospital. (2T.

at 435-38; 554). S.C. had internal injuries consistent with the sexual assaults that she

reported. (2T. at 443; 499-500). Pursuant to the CPS case plan, S.C. continued to stay

in her maternal grandparents' home.

       {¶9}   Despite the no contact order that was put in place, Crist initiated contact

with S.C., and she relented. Crist told S.C. that if she said that nothing had ever happened

between them, that life could go back to normal and he would buy her a car. Crist

convinced S.C. that she had been wrong to tell on him, and that it would not happen
Fairfield County, Case No. 15-CA-63                                                      4


again. Crist told S.C. that if she kept telling people that he abused her that he would get

her put into a mental hospital, and that she would be labeled as a sexual predator. (3T.

at 637; 4T. at 866). Crist told S.C. that she needed to recant, that it would not happen

again, and that everything would go back to normal. During this time, S.C.'s mother led

her grandparents to believe that she was misbehaving, which led to a stressful living

environment for S.C. Because of this, S.C. thought she might be happier living at the

home of Crist’s parents. (3T. at 558-59). Crist told S.C. that she could only live there if

she recanted, so at Crist's urging, S.C. recanted the allegation to her caseworker. (3T.

at 558-60).

       {¶10} In the fall of 2013, S.C. was a junior in high school. S.C. moved into the

home of Crist’s mother. Crist lived just a few doors down the street, and because S.C.

did not have a car, he became her main mode of transportation to and from work. (3T. at

561-67). Crist saw S.C. daily, as he took her to and from work every day. When Crist

took S.C. to work, he began to again sexually abuse her. Crist engaged in various types

of sexual conduct, including oral and vaginal intercourse with S.C. two to three times a

week. (3T. at 732-33; 5T. at 898-99). The types of sexual conduct varied, and occurred

so frequently that she could not keep track. Id.

       {¶11} S.C. began to notice a correlation between gifts Crist gave her and his

sexual advances. She noticed that he would give her money or buy her new clothes, and

then a day or two later he wanted to have sex with her. (4T. at 736-37). S.C. began to

stop accepting the gifts, hoping that if she did not accept them, he would not ask her for

sex. (4T. at 737-38).
Fairfield County, Case No. 15-CA-63                                                       5


       {¶12} Crist told S.C. that if she disclosed what was occurring, that she would be

labeled, and be made to look crazy. (4T. at 866; 5T. at 904). Based on her prior

disclosures of sexual abuse, S.C. saw a counselor regularly, and as a part of her case

plan, she engaged in family sessions that included Crist. In these sessions, Crist denied

that there had been any inappropriate conduct.        This led S.C. to believe that what

happened was her fault. (3T. at 571 - 572).

       {¶13} In early 2014, S.C. stopped being a passive participant in this sexual

activity, and began resisting her father's sexual advances both physically and verbally.

(3T. at 575-76). S.C. swatted his hands and pushed him away. (3T. at 576; 4T. at 734-

36). The majority of the time Crist would not accept no for an answer, and sometimes

would hold her down and have forcible vaginal intercourse with her. (3T. at 576-78). In

March of 2014, S.C. contacted her CPS caseworker and disclosed the truth about the

sexual abuse that had occurred in 2013 and 2014. (3T.at 578-79). Crist had informed

S.C. that he may gain custody of her younger sister, and S.C. was concerned that her

little sister might also be victimized if she was not truthful about what had been going on.

(3T. at 579-81).

       {¶14} Detectives spoke with Crist, and during this interview, he admitted that

sexual conduct might have occurred with S.C. Crist provided explanations and placed

blame on his daughter for initiating sexual encounters. (1T. at 170; 212-233; 2T. at 245-

86). S.C. recorded phone calls that took place between her and Crist. In these calls,

Crist accused S.C. of "playing victim" and said that as long as she was not around, he

was able to be "good.” (3T. at 591-92). His "problems" only ever occurred when she

started living with him. (3T. at 633; 671). Crist told S.C. he would talk more about what
Fairfield County, Case No. 15-CA-63                                                           6


happened in person, and did not deny that he abused her. (3T.at 591-95; 634-35). Crist

told S.C. that he would buy her a new car and a new phone, and suggested that if she

recanted like she did before, that it would all go away. (4T. at 730-50). Crist told S.C.

that she was the aggressor, and that he would not let it happen again. (3T. at 648 - 649;

4T. at 755). Crist implicitly admitted to having sex with S.C., and apologized for his

actions. (3T. at 702-07; 721-22; 6T. at 1235-41).

         {¶15} At the conclusion of the five-day trial the jury returned a verdict finding Crist

guilty of all four counts as charged in the Indictment. On November 6, 2015, Crist was

sentenced to serve 11 years in a state penal institution on the rape charge. Crist was

sentenced to a term of community control as to Counts 1 and 2, sexual battery charges.

The trial court found that Count 3, sexual battery, merged with Count 4, Rape.

                                         Assignments of Error

         {¶16} Crist raises two assignments of error,

         {¶17} “I. THE TRIAL COURT ERRED WHEN FAILING TO INSTRUCT THE JURY

THAT FORCE IN A RAPE PROSECUTION UNDER R.C. 2907.02(A)(2) REQUIRED

PHYSICAL VIOLENCE, COMPULSION, OR CONSTRAINT.

         {¶18} “II. THE TRIAL COURT ERRED WHEN INSTRUCTING THE JURY THAT

INFERENCES COULD BE DRAWN FROM “CIRCUMSTANCES” PROVEN IN THE

CASE.”

                                         Standard of Review

         {¶19} The giving of jury instructions is within the sound discretion of the trial court

and will not be disturbed on appeal absent an abuse of discretion. State v. Martens, 90

Ohio App.3d 338, 629 N.E.2d 462(3rd Dist. 1993). In order to find an abuse of that
Fairfield County, Case No. 15-CA-63                                                            7


discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be reviewed as a whole.

State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).

        {¶20} Crim.R. 30(A) governs instructions and states as follows:

              At the close of the evidence or at such earlier time during the trial as

        the court reasonably directs, any party may file written requests that the

        court instruct the jury on the law as set forth in the requests. Copies shall

        be furnished to all other parties at the time of making the requests. The

        court shall inform counsel of its proposed action on the requests prior to

        counsel's arguments to the jury and shall give the jury complete instructions

        after the arguments are completed. The court also may give some or all of

        its instructions to the jury prior to counsel's arguments. The court need not

        reduce its instructions to writing.

              On appeal, a party may not assign as error the giving or the failure to

        give any instructions unless the party objects before the jury retires to

        consider its verdict, stating specifically the matter objected to and the

        grounds of the objection. Opportunity shall be given to make the objection

        out of the hearing of the jury.

        {¶21} Crist did not file a written request for specific jury instructions, and did not

object to the trial court's jury instructions. Based upon Crist’s failure to proffer instructions

or object to the instructions and bring the issue to the trial court's attention for
Fairfield County, Case No. 15-CA-63                                                         8


consideration, we must address Crist’s two assignments of error under the plain error

doctrine.

        {¶22} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d

35(1999) the United States Supreme Court held that because the failure to properly

instruct the jury is not in most instances structural error, the harmless-error rule of

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies to a failure to

properly instruct the jury, for it does not necessarily render a trial fundamentally unfair or

an unreliable vehicle for determining guilt or innocence.

        {¶23} Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” “Notice

of plain error under Crim.R. 52(B) 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 three of the syllabus. In order to find

plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of

the trial clearly would have been otherwise. Id. at paragraph two of the syllabus.

        {¶24} The defendant bears the burden of demonstrating that a plain error affected

his substantial rights. United States v. Olano, 507 U.S. at 725, 734, 113 S.Ct. 1770, 123

L.Ed.2d 308(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d 643, 646(2004).

Even if the defendant satisfies this burden, an appellate court has discretion to disregard

the error and should correct it only to ‘prevent a manifest miscarriage of justice.'” State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002), quoting State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus. Perry, supra, at 118,

802 N.E.2d at 646.
Fairfield County, Case No. 15-CA-63                                                         9


        {¶25} An erroneous jury instruction does not constitute plain error unless, but for

the error, the outcome of the trial clearly would have been otherwise.”              State v.

Cunningham, 105 Ohio St.3d 197, 824 N.E.2d 504, 2004–Ohio–7007, ¶ 56. See, also,

State v. Adams 62 Ohio St.2d 151, 154, 404 N.E.2d 144(1980) (holding that a trial court’s

failure to specifically charge the jury on every element of an offense is not per se plain

error, but could result in plain error if the failure substantially prejudiced the defendant).

Appellate courts notice plain error “‘with the utmost caution, under exceptional

circumstances [,] and only to prevent a manifest miscarriage of justice.’” State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240, 2002–Ohio–68, quoting State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.

                                                   I.

        {¶26} In his first assignment of error, Crist argues that the jury instruction on

parental force in this case in relation to the charge of rape pursuant to R.C. 2907.02(A)(2)

was in error.

        {¶27} R.C. 2907.02(A)(2) provides

                 No person shall engage in sexual conduct with another when the

        offender purposely compels the other person to submit by force or threat of

        force.

                                             ***

                 (C) A victim need not prove physical resistance to the offender in

        prosecutions under this section.

        {¶28} R.C. 2901.01(A)(1) defines “force,”
Fairfield County, Case No. 15-CA-63                                                      10


                 “Force” means any violence, compulsion, or constraint physically

       exerted by any means upon or against a person or thing.

                 In the case at bar, the trial court instructed the jury,

                 Force: This means any violence, compulsion, effort or constraint

       exerted or used by any means upon or against a person or thing.

6T. at 1261. Crist argues that the trial court’s failure to include the word “physically” in

the definition of the term “force” that was given to the jury was error. Crist contends that

psychological pressure and manipulation by a father against a daughter is not sufficient

to find force.

       {¶29} In State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304(1988), the Ohio

Supreme Court expanded the definition of “force” in a case involving the rape of a four

year old child by her father. The Supreme Court held:

                 The force and violence necessary to commit the crime of rape

       depends upon the age, size and strength of the parties and their relation to

       each other. With the filial obligation of obedience to a parent, the same

       degree of force and violence may not be required upon a person of tender

       years, as would be required were the parties more nearly equal in age, size

       and strength. (State v. Labus [1921], 102 Ohio St. 26, 38–39, 130 N.E. 161,

       164.).

Eskridge, para. 1 of the syllabus.

       {¶30} Later, in State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661(1992), the

Supreme Court again expanded the definition of force in the context of a pattern of incest
Fairfield County, Case No. 15-CA-63                                                       11


between a father and his twenty-year-old daughter. Although the Court found the state

did not prove the elements of forcible rape, it held:

               A defendant purposely compels another to submit to sexual conduct

        by force or threat of force if the defendant uses physical force against that

        person, or creates the belief that physical force will be used if the victim

        does not submit. A threat of force can be inferred from the circumstances

        surrounding sexual conduct, but a pattern of incest will not substitute for the

        element of force where the state introduces no evidence that an adult victim

        believed that the defendant might use physical force against her. (State v.

        Eskridge [1988], 38 Ohio St.3d 56, 526 N.E.2d 304, distinguished.)”

Schaim, at paragraph 1 of the syllabus.

        {¶31} In the case at bar, we decline to use the definition of “force” applied in

Schaim because the victim in that case was an adult. Here, the victim was not an adult

when she was sexually assaulted. She was a minor and still considered a child. The

victim was not of so tender an age, however, as the child in Eskridge. Therefore, the

question is whether her will was overcome by fear or duress. See, State v. Oddi, 5th Dist.

Delaware No. 02CAA01005, 2002-Ohio-5926, ¶57 (“The minors involved in this case are

younger from the twenty-year old adult the Supreme Court faced in Schaim, but neither

were they children of tender years.”).

               “[I]n determining whether a course of conduct results in duress, the

        question is not what effect such conduct would have upon an ordinary man

        but rather the effect upon the particular person toward whom such conduct

        is directed, and in determining such effect the age, sex, health, and mental
Fairfield County, Case No. 15-CA-63                                                          12


        condition of the person affected, the relationship of the parties and all the

        surrounding circumstances may be considered.”

State v. Getsy, 84 Ohio St.3d 180, 206 (1998), quoting Tallmadge v. Robinson, 158 Ohio

St. 333 (1952).

        {¶32} In the case at bar, the trial court instructed the jury,

               Force of a parent or other authority figure: When the relationship

        between the victim and the Defendant is one of child and parent, the

        element of force need not be openly displayed or physically brutal. It can

        be subtle, slight, psychologically and emotionally powerful. Evidence of an

        express threat of harm or evidence of significant physical restraint is not

        required. If you find beyond a reasonable doubt that under the

        circumstances in evidence, the victim's will was overcome by fear, duress,

        or intimidation, the element of force has been proved.

6T. at 1261.

        {¶33} We find that the trial court’s instructions correctly stated the law as it applies

to Crist’s case. The victim was 14 years old at the time the abuse began. She was Crist’s

daughter and was living with him at the time. Initially, the abuse was reported to the police.

However, Crist pressured the girl to recant, telling her he would get her put into a mental

hospital, and that she would be labeled as a sexual predator. Crist told S.C. that she

could only live at the home of his parents if she recanted. In early 2014, S.C. stopped

being a passive participant in this sexual activity, and began resisting her father's sexual

advances both physically and verbally.

        {¶34} In State v. Eskridge, the Supreme Court observed,
Fairfield County, Case No. 15-CA-63                                                       13


              “In the within case, we are confronted with a child being told to do

       something by an important figure of authority, and commanded not to tell

       anyone about it. In such a case, we find nothing unreasonable about a

       finding that the child’s will was overcome.      Consequently, the forcible

       element of rape was properly established.” State v. Fowler (1985), 27 Ohio

       App.3d 149, 154, 27 OBR 182, 187, 500 N.E.2d 390, 395.

              In Fowler, the defendant, the stepfather of the fourteen-year-old

       victim, challenged his conviction for rape by force or threat of force on the

       grounds, among several, that the use of force or threat of force had not been

       proven.

              “* * * Sexual activity between a parent and a minor child is not

       comparable to sexual activity between two adults with a history of

       consensual intercourse. 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. Etheridge

       (1987), 319 N.C. 34, 47, 352 S.E.2d 673, 681. In the present case, Eskridge

       was the victim’s father and, at the time of the rape, was babysitting her. He

       therefore held a position of authority over her which did not require any

       explicit threats or displays of force.

38 Ohio St.3d 56, 59,526 N.E.2d 304(1988).

       {¶35} The trial court’s instructions to the jury taken as a whole correctly stated the

law with respect to the “force” required to convict Crist. Crist has failed to demonstrate
Fairfield County, Case No. 15-CA-63                                                           14


that the result of his trial would have been different had the judge included the word

“physically” when defining “force” to the jury.

        {¶36} Crist’s first assignment of error is overruled.

                                                     II.

        {¶37} In his second assignment of error, Crist maintains the jury instructions

allowed the impermissible stacking of inferences by allowing inferences from “other facts

or circumstances proven.” Crist contends that the instructions undermined his right not to

testify in his case. Specifically, Crist argues the jury was arguably allowed to base its

verdict of guilty on the perceived basis that his failure to testify failed to rebut the victim’s

insistence in the recorded telephone calls that he had abused her. Crist agrees that he

failed to object to the instructions at the trial court level.

        {¶38} In the case at bar, the trial court instructed the jury,

                To infer or to make an inference is to reach a reasonable conclusion

        of fact which you may, but are not required to make, from other facts which

        you find have been established by direct evidence. Whether an inference

        is made, jurors, rests entirely with you. You may infer a fact or facts only

        from other facts or circumstances that have been proven by the greater

        weight of the evidence, but you may not make inferences from a speculative

        or remote basis that has not been established by the greater weight of the

        evidence.

6T. at 1246-1247.

        {¶39} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “‘such evidence to be irreconcilable with any
Fairfield County, Case No. 15-CA-63                                                           15

reasonable theory of innocence in order to support a conviction.’” State v. Jenks, 61 Ohio

St.3d 259, 272, 574 N.E.2d 492(1991) at paragraph one of the syllabus. “‘Circumstantial

evidence and direct evidence inherently possess the same probative value [.]’” Jenks, 61

Ohio St.3d at paragraph one of the syllabus.            Furthermore, “‘[s]ince circumstantial

evidence and direct evidence are indistinguishable so far as the jury's fact-finding function

is concerned, all that is required of the jury is that i[t] weigh all of the evidence, direct and

circumstantial, against the standard of proof beyond a reasonable doubt.’” Jenks, 61 Ohio

St.3d at 272, 574 N.E.2d 492. While inferences cannot be based on inferences, a number

of conclusions can result from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168,

555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co. , 164 Ohio St. 329,

331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be

employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio St.3d

at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

        {¶40} In the case at bar, the trial court instructed the jury,

               Ladies and gentlemen, it is not necessary that the Defendant take

        the witness stand in his own defense. He has a constitutional right not to

        testify. The fact that he did not testify must not be considered by you for

        any purpose.

6T. at 1262.

        {¶41} “Juries are presumed to follow their instructions.” Zafiro v. United States

506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317(1993). “A presumption always exists

that the jury has followed the instructions given to it by the trial court,” Pang v. Minch, 53
Fairfield County, Case No. 15-CA-63                                                     16

Ohio St.3d 186, 187, 559 N.E.2d 1313(1990), at paragraph four of the syllabus, rehearing

denied, 54 Ohio St.3d 716, 562 N.E.2d 163.

       {¶42} Crist’s reliance upon State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335,

2004–Ohio–2147 is misplaced.

       {¶43} In Leach, the Ohio Supreme Court held that the “use of a defendant’s pre-

arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege

against self-incrimination.” Id. at ¶ 38, 807 N.E.2d 335. In Leach, two women called the

police and accused the defendant of attempted rape and other crimes. Id. at ¶ 3, 807

N.E.2d 335. During the state’s case-in-chief, the police investigator testified that one of

the victims had provided him with the defendant’s phone number. Id. at ¶ 5, 807 N.E.2d

335. The investigator called the defendant and made an appointment to talk with him the

next day. Id. at ¶ 5, 807 N.E.2d 335. The investigator testified that the defendant did not

keep the appointment, and that the defendant had left a message on the police answering

machine that he wanted to speak with an attorney before talking with the police. Id.

       {¶44} In finding that the state violated the defendant’s Fifth Amendment rights,

Leach explained: “The state in this case presented testimony that Leach, who had not yet

been arrested or Mirandized, remained silent and/or asserted his right to counsel in the

face of questioning by law enforcement. This testimony was clearly meant to allow the

jury to infer Leach’s guilt. Otherwise, jurors might reason, Leach would have offered his

version of events to law enforcement.” Id. at ¶ 25. See, State v. Powell, 132 Ohio St.3d

233, 2012-Ohio-2577, 971 N.E.2d 865, ¶156. In Powell, the Supreme Court observed,

              Leach applies to the prosecutor’s argument that Powell refused to

       turn himself in and assist the police. This argument implied that Powell had
Fairfield County, Case No. 15-CA-63                                                       17


       something to hide by not turning himself in and telling the police what

       happened.     Under Leach, this was an improper comment on Powell’s

       prearrest silence and violated his Fifth Amendment privilege against self-

       incrimination.

Powell at ¶ 159. However, in Powell the state argued to the jury,

               The Defendant refuses to come in even after his brother talks to him

       at the insistence of Detective Gast. He refuses to come in. Imagine what

       has just occurred. And he refuses to come in to assist.

Powell at ¶ 155.

       {¶45} No testimony was presented or argument made by the state in the case at

bar that Crist had something to hide by not testifying on his own behalf at trial. The trial

court’s instructions concerning inferences would not “naturally and necessarily” be taken

as a comment on the failure of the accused to testify, or to present a defense. See

generally, State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906, 911(1986), citing State

v. Cooper, 52 Ohio St.2d 163, 370 N.E.2d 725(1977), vacated on other grounds (1978),

438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1157.           The state may comment upon a

defendant’s failure to offer evidence in support of its case. State v. Collins, 89 Ohio St.3d

524, 733 N.E.2d 1118(2000). “Such comments do not imply that the burden of proof has

shifted to the defense, nor do they necessarily constitute a penalty on the defendant’s

exercise of his Fifth Amendment right to remain silent.” Id. at 528-29, 733 N.E.2d 1118.

The state must refrain from commenting on a decision not to testify, but the state may

challenge the weight of evidence offered by the defense in support of its theory of the
 Fairfield County, Case No. 15-CA-63                                                        18


case. Id. The state does not have a duty to disprove every possible circumstance

suggested by the defendant. Id.

        {¶46} Crist has not cited any evidence in the record that the jury failed to follow

the trial court’s instruction.   Accordingly, we find that Crist has failed to rebut the

presumption that the jury followed the trial court’s instructions not to consider the fact that

he did not testify at trial.

        {¶47} Because we find there is no reasonable possibility that jury instructions cited

by Crist as error contributed to his conviction, any error is harmless. State v. Kovac, 150

Ohio App.3d 676, 782 N.E.2d 1185, 2002-Ohio-6784, ¶ 42; State v. Lindsay, 5th Dist.

Richland No. 2010-CA-0134, 2011-Ohio-4747, ¶75.

        {¶48} Crist’s second assignment of error is overruled.

        {¶49} The judgment of the Fairfield County Court of Common Pleas is affirmed.


 By Gwin, P.J.,

 Wise, J., and

 Baldwin, J., concur


                                                _________________________________
                                                HON. W. SCOTT GWIN

                                                _________________________________
                                                HON. JOHN W. WISE

                                                _________________________________
                                                HON. CRAIG R. BALDWIN



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