[Cite as State v. Fouts, 2016-Ohio-1104.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                                 :
                                                    Case No. 15CA25
        Plaintiff-Appellee,                    :

        v.                                     :    DECISION AND
                                                    JUDGMENT ENTRY
DOUGLAS W. FOUTS,                              :

        Defendant-Appellant.                   :    RELEASED: 3/16/2016

                                            APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.

Harsha, J.
        {¶1}     After a jury convicted Douglas W. Fouts of gross sexual imposition and

attempted unlawful sexual conduct with a minor, the trial court sentenced him to prison

and Fouts filed this appeal.

        {¶2}     Fouts argues that the trial court erred in denying his motion to suppress

statements he made to police. He claims the interview was a custodial interrogation that

required a Miranda warning, which he did not receive. He also argues that his

statements were involuntary because the police engaged in deceptive practices by

minimizing the seriousness of his actions. However, the evidence at the suppression

hearing reveals that Fouts’s statements to police were both non-custodial and voluntary.

The police told him that he was not under arrest and that he was not required to speak

to them. There was no evidence of promises of leniency, misstatements of law, or
Washington App. No. 15CA25                                                                               2


types of deception or coercion by the police that would have overcome his will and

forced him to make an involuntary confession.

        {¶3}    Fouts also contends that he was denied his constitutional rights to due

process and compulsory process when as a discovery sanction, the trial court

improperly applied Crim.R. 16(L) by preventing one of two surprise witnesses from

testifying.1 Accordingly, we must first determine whether the trial court erred under state

law in applying the rule. The trial court did not impose the harshest discovery sanction

available. After considering the circumstances, the trial court permitted one of Fouts’s

two surprise witnesses to testify, providing the defense counsel made the witness

available to speak to the prosecutor at a lunch break during trial. The other surprise

witness, Fouts’s 15-year-old daughter, was excluded. Because Fouts failed to disclose

her, failed to proffer her testimony, and there is nothing in the record that shows she

had relevant, non-redundant testimony, the trial court properly exercised its discretion

by excluding her. In the absence of a violation of the state evidentiary rule, our analysis

ends because Fouts’s constitutional argument is premised upon such a violation. Fouts

also argues that the prosecutor’s objection to the witness and refusal to interview her

during a break at trial constituted prosecutorial misconduct that denied him a fair trial.

However, this claim is also meritless because the prosecutor’s objection to Fouts’s two

surprise witnesses is not “misconduct”, rather it was in keeping with fair trial practice.

The premise for his conclusion does not exist here either.

        {¶4}    Next Fouts argues that his trial counsel provided ineffective assistance by

failing to supplement discovery with the names of two additional defense witnesses,


1
 Fouts does not contend that Crim.R. 16(L) and/or its proper application under state law violates his Sixth
and Fourteenth amendment rights.
Washington App. No. 15CA25                                                                      3


giving a poor closing argument, and failing to request a lesser included offense jury

instruction. Fouts’s dissatisfaction with defense counsel concerns tactical decisions that

do not rise to the level of ineffective assistance. Fouts also failed to show that there is a

reasonable probability that but for counsel's actions, the result of the trial would have

been different. Therefore, he failed to prove prejudice. And based upon the evidence at

trial, he was not entitled to a lesser included offense jury instruction. The state

presented uncontroverted evidence of force through the victim’s testimony that Fouts

held his arms around her, pulled her hair back, and pulled her shirt down. Fouts

admitted he hugged his arms around her and moved her hair aside. He did not deny or

contest the evidence that he pulled the victim’s shirt down. Because Fouts offered no

evidence to contest his use of force, and in fact admitted it, it was not reasonably

possible for the jury to find him not guilty of the greater offense, but guilty of the lesser

one. So, he was not entitled to jury instruction on the lesser included offense.

       {¶5}   Finally, Fouts asserts that the trial court erred when it failed to give a sua

sponte jury instruction on the lesser included offense of “sexual imposition” and instead

instructed only on “gross sexual imposition.” However, as we determined, the facts did

not warrant a lesser included offense instruction, so the trial court had no duty to give

one.

       {¶6}   We affirm the judgment of the trial court.


                                          I. FACTS


       {¶7}   The Washington County Grand Jury indicted Fouts on one count each of

kidnapping, abduction, gross sexual imposition, and attempted unlawful sexual conduct

with a minor, who was 15 years old. Fouts moved to suppress the statements he gave
Washington App. No. 15CA25                                                                   4

to police on the grounds that they were custodial but he was not given a Miranda

warning, and they were involuntary due to police deception. After the trial court denied

his motion, a jury found him not guilty of kidnapping and abduction, but guilty of gross

sexual imposition and attempted unlawful sexual conduct with a minor.

       {¶8}   At trial the state presented the victim, who testified that her parents had

recently separated and she was living with her mother who worked a midnight shift as a

nurse. As a result she would frequently go to her friend’s house to spend the night and

go to school. Her friend was Fouts’s daughter who was also 15 years old. The victim

testified that she had this arrangement with the Fouts family since August or September

2013 and she was encouraged to use the terms “mom” and “dad” with the Foutses.

       {¶9}   The victim indicated that she contacted Mr. Fouts by phone and asked him

if he and his daughter could pick her up so she could spend the night. She expected

Fouts’s daughter to be in vehicle when he arrived; however, his daughter was not there.

Instead of driving her back to the Fouts home, Fouts told the victim that he was having a

fight with his wife and did not want to return home yet. He drove the victim to a

secluded, wooded area of a high school parking lot. The victim stated that Fouts was

drinking beer and told her he wanted to listen to music. Fouts offered her a beer and a

cigarette, which the victim refused. The victim stated that Fouts told her to stop calling

him “dad” and began talking about his interest in pornography and sexual problems he

was having with his wife.

       {¶10} While she was in Fouts’s vehicle, the victim texted Fouts’s daughter and

told her that Fouts had offered her beer and that they were in the high school parking

lot. She texted that Fouts was getting angry that she was texting, and that she was
Washington App. No. 15CA25                                                                  5


scared because he was cleaning out the back seat of the vehicle. She testified that he

took her phone away and told her she did not need to talk to anyone else because she

was up there with him. The victim testified that at that point, she had no further ability to

send a text message. The state introduced screen shots of the victim’s and the

daughter’s text messages. The exhibit shows that for a period of about 15 minutes, the

text messages stopped. The victim testified that after Fouts took her phone, he got out

of the car, cleared out the back seat area, and went around to her side of the vehicle,

got in, and asked if he could sit closer to the victim. But she moved, went over the

center console, and sat in the driver’s side.

       {¶11} The victim testified that after Fouts got into the passenger seat, he pulled

her over onto his lap, wrapped his arms around her body, and told her she was

beautiful. She testified that Fouts moved her hair off her shoulder, pulled down her shirt

and began kissing the back of her neck. The victim testified that she told him multiple

times to stop and Fouts told her he could tell she was scared and he told her not to be

afraid and that it felt good.

       {¶12} When Fouts started driving out of the parking lot, the victim testified she

was able to gain possession of her phone and she texted Fouts’s daughter and told her

what had happened. The screen shots from the victim’s text messages showed that

approximately fifteen minutes after her last text, the victim texted that Fouts had put her

on his lap and kissed her neck and that he continued to do so even though she had

asked him to stop.

       {¶13} The victim testified that when she arrived at Fouts’s house, she

immediately told Fouts’s two daughters what had happened. Fouts’s daughters
Washington App. No. 15CA25                                                                 6


encouraged the victim to tell Fouts’s wife. The victim agreed and texted the wife exactly

what had occurred that evening. The state introduced screen shots of those text

messages.

        {¶14} The state also presented Officer Katherine Warden, who testified that after

she spoke to the victim and her parents, she went to the Fouts residence in West

Virginia to speak with him. Fouts eventually drove his own car to follow her to the police

station in Marietta, Ohio. Officer Warden stated that Fouts’s wife answered the door and

was “very standoffish.” The wife did not want to speak to the police and did not want

them to come inside the house. Warden testified that at the station Fouts initially lied

about taking the victim to the high school parking lot and kissing her. However, when he

was told that the parking lot had video cameras and his car was shown on the camera,

he changed his story and eventually admitted to driving the victim up there, telling her

she was beautiful, hugging her, moving her hair aside and kissing her neck. The jury

watched Fouts’s 30-minute videotaped interview with Officer Warden.

        {¶15} Mrs. Fouts testified for the defense but her testimony is not relevant to our

task.

        {¶16} After the jury returned a guilty verdict on the counts of gross sexual

imposition and attempted unlawful sexual conduct with a minor, the trial court sentenced

Fouts, who appealed.

                                 II. ASSIGNMENTS OF ERROR

        {¶17} Fouts raises four assignments of error:

        1.    THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT’S
              MOTION TO SUPPRESS.
Washington App. No. 15CA25                                                                   7


       2.     DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL
              RIGHTS TO DUE PROCESS AND COMPULSORY PROCESS BY THE
              DENIAL OF HIS RIGHT TO CALL HIS DAUGHTER AS A WITNESS.

       3.     DEFENDANT-APPELLANT’S TRIAL COUNSEL PROVIDED
              CONSTITUTIONALLY INEFFECTIVE ASSISTANCE.

       4.     THE TRIAL COURT ERRED BY REQUIRING DEFENSE COUNSEL TO
              REQUEST IN WRITING A LESSER INCLUDED OFFENSE JURY
              INSTRUCTION WHEN THE OHIO SUPREME COURT HAS HELD
              THESE INSTRUCTIONS ARE REQUIRED.

                     III. MOTION TO SUPPRESS FOUTS’S STATEMENT

                                A. Custodial Interrogation

                             1. Standard of Review and Law

       {¶18} Fouts challenges the trial court’s denial of his motion to suppress.

Appellate review of a trial court's decision on a motion to suppress raises a mixed

question of law and fact. State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, 975

N.E.2d 965, ¶ 6. Because the trial court acts as the trier of fact in suppression hearings

and is in the best position to resolve factual issues and evaluate the credibility of

witnesses, we must accept the trial court's findings of fact if they are supported by

competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. Accepting these facts as true, we must then “independently

determine, without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Hobbs at ¶ 8, citing Burnside at ¶ 8.

       {¶19} Police are not required to administer Miranda warnings to everyone they

question. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714

(1977). Likewise warnings are not required simply because the questioning takes place

in the station house, or because the questioned person is one whom the police suspect.
Washington App. No. 15CA25                                                                     8

Id. Only a “custodial interrogation” triggers the need for Miranda warnings. State v.

Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997). Miranda defined “custodial

interrogation” as “questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any significant

way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

“The ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” California v.

Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) quoting

Mathiason, supra, at 495. The relevant inquiry in determining whether a person is

subject to custodial interrogation focuses upon how a reasonable person in the

suspect's position would have understood the situation. Berkemer v. McCarty, 468 U.S.

420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The subjective views of the

interviewing officer and the suspect do not control whether a custodial interrogation

occurred. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293

(1994); In re Strum, 4th Dist. Washington No. 05CA35, 2006-Ohio-7101, ¶ 29-31.

       {¶20} Fouts does not dispute the facts surrounding the police interview, but

attacks the trial court’s legal conclusion that his statements to the police were non-

custodial. Fouts claims that the police questioning of him at this home, which continued

at the police station, was a “custodial interrogation” but at no time prior to or during the

questioning did he receive a Miranda warning. He argues that the officer’s intent was

coercive because she wanted to interview Fouts at the Marietta Police Station where

she had jurisdiction, and she planned to threaten Fouts with arrest if he did not

cooperate.
Washington App. No. 15CA25                                                                9


                                  2. The Suppression Hearing

       {¶21} Two police officers and an employee from Washington County Children’s

Services went to the Fouts home in West Virginia in the early evening of the day the

victim reported the incident. Officer Warden testified Fouts’s wife answered the door

and told police she did not want questioning to occur at the house because of the

presence of children and asked if the questioning had to occur at the house. The police

told her no and explained that Fouts was not under arrest and that he may choose

whether to speak with them. After his wife brought Fouts to the door, he and the police

stood outside on the porch for approximately 10 to 15 minutes talking. The police

testified that they told Fouts that he was not under arrest and that he did not have to talk

to them if he did not want to and that Fouts told them he understood that. The police

never touched Fouts or physically restrained him in any way at any time during the

questioning.

       {¶22} Due to the severe cold temperatures, the police asked Fouts if they could

continue the questioning at the Williamstown Police Station in West Virginia. Fouts

agreed to follow the police in his own vehicle. However, a few moments later, Officer

Warden decided to go to the Marietta Police Station in Ohio instead and asked Fouts if

he would follow her there. Fouts voluntarily agreed to go to Marietta, which was about a

ten-minute drive from Fouts’s house, and followed the police in his own car.

       {¶23} Officer Warden acknowledged that she wanted to have Fouts return to the

Marietta Police Station because she had jurisdiction there and may have to take Fouts

into custody, depending upon what he said during the questioning. At the time the

officer began questioning Fouts, she knew what the minor had alleged occurred and
Washington App. No. 15CA25                                                                 10


that Fouts’s vehicle was on security videotape at the high school parking lot. The officer

testified that she made it clear to Fouts at his house that he was not under arrest and

that he was not required to talk to her or go to the police station, but she did not remind

him of that again when Fouts arrived at the police station or during the questioning at

the station.

       {¶24} At the Marietta Police Station Fouts and Officer Warden sat in an office

with the door closed but not locked. Fouts was not handcuffed or otherwise restrained.

Fouts spoke conversationally with the police officer about the mortgage industry, as that

had been Fouts’s line of work. Fouts had his cell phone with him and used it several

times during the questioning to speak to his wife and to review text messages. After

listening to Fouts talk about the housing and mortgage markets for several minutes, the

officer told Fouts that she had received information about an incident that occurred the

previous night between Fouts and a minor, and which the officer hoped was just a

misunderstanding. Fouts agreed that some misunderstanding must have occurred. The

officer asked Fouts to tell her what happened.

       {¶25} Fouts told the officer that the minor was a friend of his daughter and that

the minor had texted him to see about a ride. The officer asked Fouts about the time

frame the minor texted him for a ride and he stated it was about 10 p.m. the previous

evening. He voluntarily handed his phone to the officer and told her to look at the text

messages. The officer told Fouts that he should correct anything she said that is

incorrect during the questioning because the officer did not want to put words in his

mouth. Fouts responded affirmatively, stating that he would not answer a question if he

thought his answer would be misconstrued. The officer asked him if he went straight to
Washington App. No. 15CA25                                                                  11


his house after he picked up the minor. Fouts indicated that the only stop he had made

was at a gas station for gasoline and kerosene; Fouts stated that he did not go or stop

anywhere else. The officer asked him if he went to the Marietta High School and Fouts

denied it. He also denied driving through the high school parking lot. The officer

informed him that security cameras in the high school parking lot had captured his

vehicle on tape. Upon hearing this, Fouts stated that the minor was driving his vehicle.

         {¶26} The officer then stated that she did not think that Fouts raped the minor.

Instead, she believed that Fouts “made a mistake” or did something “iffy.” She then

asked Fouts how long the relationship with the minor had been going on. Fouts denied

having a relationship with the minor. The officer told Fouts she was not going to tell his

wife what he said during the interview and reiterated that she does not believe Fouts

raped the minor, but stated she did believe he had made “a mistake.” The officer told

Fouts that she understood Fouts pulled the minor onto his lap and started kissing her

and that if he had raped somebody, they would be having a different conversation. The

officer stated that she thought Fouts probably made a mistake and mistakes can be

fixed.

         {¶27} She then asked Fouts if he put any of his body parts into the minor. Fouts

denied penetrating the minor with any body parts but admitted that he told the minor she

was beautiful, pulled her hair back, and kissed her neck. He denied pulling her onto his

lap, insisting that she voluntarily climbed onto his lap, but admitted that he had his arms

around her in a hug. Fouts stated that the minor told him his behavior was wrong and

asked him to stop. Fouts stated that at the same time the minor told him to stop, he had

decided to stop on his own. When asked how the incident got started, Fouts admitted
Washington App. No. 15CA25                                                                    12


that he had been talking to the minor about sex, that she looks older than her age, and

that sometimes the “lines get blurred.”

       {¶28} Officer Warden gave Fouts an opportunity to write out what happened the

previous evening. While the officer was talking to him about making a written statement,

Fouts took a phone call from his wife and informed the officer that he would need to

leave soon to pick up his daughter. The officer left Fouts in the office alone to give him

an opportunity to fill out the written statement. After several attempts to write out a

statement, Fouts got up and left the office to search for the officer. He located the officer

and informed her that he was unable to find the right words and was unhappy with his

attempts to write something out. He stated that he felt under pressure because he

needed to leave to pick up his daughter. The officer and Fouts walked back to the office

and the officer told him that he did not need to fill it out if he did not want to. The officer

told Fouts she was not certain she could let him go and told him to take a seat for about

five minutes while she made a phone call. Fouts sat back down in the chair and waited.

A little later the officer returned to the office and stated, “Okay Mr. Fouts you are ready

to go.” The police questioning lasted approximately 30 minutes.

       {¶29} Fouts did not testify or offer any direct evidence at the hearing.

                                          3. Analysis

       {¶30} Nothing in the record before us indicates that Fouts was under a formal

arrest or that a reasonable person in Fouts’s situation would not have felt free to leave.

Officer Warden told Fouts that he was not under arrest and that the decision to speak

with the police was his choice. He voluntarily agreed to follow the police in his own

vehicle to the station to continue the questioning. He was never handcuffed, restrained
Washington App. No. 15CA25                                                                 13


or locked in a room. He was able to leave and freely walked through the door of the

office where the questioning occurred. Even though Fouts’s mindset is not controlling,

his own statements and actions indicate he subjectively understood he was there

voluntarily. For example, he stated he would not answer a question he thought would be

misconstrued, he took phone calls from his wife and, based on those telephone calls,

informed the officer he would need to leave to pick up his daughter. After being left

alone in the office to complete a written statement, he left to look for the officer and

inform her that the pressure he felt to leave to pick up his daughter made it hard for him

to come up with the right words for the written statement, so he had decided not to

provide a written statement. At the conclusion of the questioning, he walked out of the

police station, got into his vehicle and left.

       {¶31} Although the officer told Fouts to sit and wait about five minutes while she

placed a phone call, this occurred after the questioning had ended and she had left

Fouts to complete his written statement. At that point, Fouts had already lied to the

officer, apologized for lying, and admitted that he had taken the minor to the high school

parking lot, told her she was beautiful, held her in a hug, pulled her hair back, and

kissed her neck. Even then, the officer did not arrest Fouts, threaten to arrest him, or

take him into custody. And, just as Fouts’s mindset is not controlling, neither are Officer

Warden’s subjective intentions about the possibility of threatening arrest if he did not

cooperate. Thus, we need not entertain Fouts’s speculation about what Warden

intended to do if he did not cooperate. See Stansbury, supra; State v. Boyd, 4th Dist.

Adams No. 02CA744, 2003-Ohio-983, ¶ 12.
Washington App. No. 15CA25                                                                 14


       {¶32} The totality of the circumstances indicates that a reasonable person in

Fouts’s position would believe that he was not in custody and could freely leave.

Because Fouts’s statements were not the result of a custodial interrogation, he was not

entitled to a Miranda warning.

                                        B. Voluntariness

       {¶33} Fouts argues that his statements were involuntary because the police

engaged in deception by minimizing the seriousness of the crime in order to obtain his

incriminating statements.

       {¶34} He alleges that during the questioning the police “made numerous

misleading and false statements to entice [him] into making incriminating statements.”

He claims that the police admitted to making false and misleading statements at the

hearing on the motion to suppress, citing a section of the hearing transcript:

       Q. Do you sometimes minimize the extent of the crime, in an effort to have them
          open up about what they’ve done?
       A. Yes.
       Q. And is that a fairly common police tactic, to minimize the seriousness of the
          offense?
       A. Yes.
       Q. Mm-hum. Did you employ that type of tactic here?
       A. Yes.


                             1. Standard of Review and Law
       {¶35} Voluntariness of a confession and compliance with Miranda are

analytically two separate inquires. Dickerson v. United States, 530 U.S. 428, 120 S.Ct.

2326, 147 L.Ed.2d 405 (2000). “[E]ven when Miranda warnings are not required, a

confession may be involuntary if on the totality of the circumstances the “ ‘defendant’s

will was overborne’ by the circumstances surrounding the giving of a confession.” State

v. Petitjean, 140 Ohio App.3d 517, 526, 748 N.E.2d 133 (2nd Dist. 2000) quoting
Washington App. No. 15CA25                                                                 15

Dickerson, supra at 434. The ultimate determination of voluntariness presents a

reviewing court with a question of law that we answer without deference to the trial

court. Katz, Ohio Arrest, Search and Seizure, Section 24.3 (2015 Ed.), citing Arizona v.

Fulminante, 499 US 279, 111 S.Ct. 1246, 113 L.Ed.2d. 302 (1991).

       {¶36} If all of the circumstances indicate that a confession was coerced or

compelled, it cannot be used to convict the defendant. That determination depends

upon weighing the pressure to confess against the confessor’s power of resistance. A

court reviews “the totality of all the surrounding circumstances – both the characteristics

of the accused and the details of the interrogation.” Dickerson at 434. The totality of the

circumstances includes “the age, mentality, and prior criminal experience of the

accused; the length intensity, and frequency of interrogation; the existence of physical

deprivation or mistreatment; and the existence of threat or inducement.” State v.

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051, paragraph two of the syllabus (overruled

on other grounds). Deception is a factor that bears on the voluntariness of a defendant's

confession, but “this factor, standing alone, is not dispositive of the issue.” State v.

Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d 97 (1991). “[V]ague and indefinite” statements

do not render a confession involuntary. State v. Osie, 140 Ohio St.3d 131, 149, 2014-

Ohio-2966, 16 N.E.3d 588, ¶ 100 reconsideration denied, 140 Ohio St.3d 1455, 2014-

Ohio-4414, 17 N.E.3d 600, ¶ 100 and cert. denied, 135 S.Ct. 1562, 191 L.Ed.2d 649

(2015).

       {¶37} When the accused challenges the admission of a confession on the basis

it was involuntary, the burden is upon the state to prove the contrary by a

preponderance of the evidence. Katz, supra.
Washington App. No. 15CA25                                                                   16


                                          2. Analysis

       {¶38} The record of the suppression hearing shows that Fouts was a 40-year-old

man with no apparent mental deficiency who had worked in the real estate business

and had previous criminal experience arising from a grand larceny charge. He

voluntarily drove himself to the police station and was questioned for approximately 30

minutes. During the interview the officer told Fouts she did not believe he had raped the

minor. The officer testified that she told Fouts that because it was true, i.e. the minor

had made no allegations that a rape had occurred. She testified that she never told

Fouts that if he confessed there would be no charges. Fouts neither alleges, nor do we

find, any evidence that the police officer made statements constituting direct or indirect

promises of leniency, or that she made representations concerning sentencing or

probation. Likewise, there is nothing in the record that suggests the officer made any

misrepresentations of the law.

       {¶39} Fouts’s argument is that the officer minimized his offense by telling him

she did not believe he committed rape. We find nothing deceptive about this statement;

the officer testified that the minor’s factual allegations did not include rape. The other

possible statements in the record that arguably minimized Fouts’s offense were the

officer’s statement that she believed he “made a mistake” and “mistakes can be fixed”,

and her characterization of what might have happened the night before as “iffy.”

However, we find nothing about those vague and indefinite statements that would

render his confession involuntary.

       {¶40} Nothing in the officer’s interview approaches the level of conduct

necessary to overcome Fouts’s will to remain silent, or otherwise resulted in a coerced
Washington App. No. 15CA25                                                                              17


confession. There was no “badgering” or threatening by the officer. The entire tone of

the questioning was casual, conversational, and cooperative. There was no hint of

coercion or duress during the interview. Nor was there anything improper in the officer’s

efforts to create a favorable environment for a confession. There was nothing false,

deceptive or coercing about her tactic of minimizing the offense by labelling it a

“mistake” and his behavior as “iffy”.

        {¶41} Because the trial correctly ruled Fouts’s statements were not the result of

custodial interrogation and were voluntary, we overrule his first assignment of error.

                                        IV. Witness Exclusion

                                       A. Discovery Sanction

        {¶42} As a premise Fouts posits that the trial court abused its discretion and

acted arbitrarily and unreasonably when it excluded one of his witnesses from testifying

at trial as a discovery sanction. Although his attorney failed to disclose two witnesses

prior to trial, he argues that the trial court should have used a less drastic discovery

sanction and allowed both witnesses, rather than just one, to testify. The conclusion to

his argument contends that the trial court’s “arbitrary, capricious and unreasonable”

imposition of a discovery sanction under Crim.R. 16(L)(1)2 violated his right to due

process and compulsory process.

        {¶43} Fouts does not argue that Crim.R. 16(L)(1), if properly applied under state

law, violates his constitutional right to due process and compulsory process. See

generally Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)

(“arbitrary rules that prevent whole categories of defense witnesses from testifying on


2In prior versions of the Rules of Criminal Procedure, the discovery sanction provision in Crim.R. 16(L)(1)
was set forth in Crim.R. 16(E)(3).
Washington App. No. 15CA25                                                                    18


the basis of a priori categories that presume them unworthy of belief” violate the Sixth

Amendment right to compulsory process). Instead, he argues that the trial court abused

it discretion in applying state law, and that error resulted in the denial of his Sixth and

Fourteenth Amendment rights. Therefore, our analysis initially addresses Fouts’s

contention that the trial court misapplied Crim.R. 16(L)(1). See generally Spencer v.

Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (2001) (defendants challenged

Texas criminal procedure rules that governed how the recidivist statutes were enforced,

not the constitutionality of the statutes themselves).


                              1. Standard of Review and Law

       {¶44} Trial courts possess broad discretion to impose sanctions for discovery

violations, and those rulings should not be reversed on appeal absent an abuse of that

discretion. See State v. Moss, 4th Dist. Gallia No. 14CA2, 2015-Ohio-3651, ¶ 7; State v.

Dillard, 4th Dist. Meigs No. 13CA9,2014–Ohio–4974, at ¶ 13; State v. Woods, 4th Dist.

Ross No. 13CA3396, 2014–Ohio–4429, at ¶ 15. An “abuse of discretion” implies that a

court's attitude is unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio

St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Adams, 60 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980). In reviewing for an abuse of discretion, appellate courts must not

substitute their judgment for that of the trial court. State ex rel. Duncan v. Chippewa

Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57

Ohio St.3d 135, 137–138, 566 N.E.2d 1181 (1991).

       {¶45} Crim.R. 16(L)(1) provides that, if, at any time during the course of

proceedings, the trial court determines that a party has failed to comply with the

discovery rules, the court may make any order it deems just, including an order to
Washington App. No. 15CA25                                                                  19


prohibit the “party from introducing in evidence the material not disclosed * * *.” There

are numerous cases where trial courts have excluded witnesses who were not properly

revealed to opposing counsel, and those orders were upheld on appeal. See State v.

Lawhorn, 4th Dist. Ross App. No. 11CA3223, 2012-Ohio-253; State v. Brooks, 7th Dist.

Jefferson No. 04JE10, 2004–Ohio–4546, at ¶ 19–28; Mount Vernon v. Szerlip, 5th Dist.

Knox No. 98CA20, 1999 WL 436764 (Jun. 17, 1999); State v. Johnson, 5th Dist.

Richland No. 98–CA–42, 1998 WL 818026 (Nov. 19, 1998).

        {¶46} The failure to reveal the names of potential witnesses in discovery under

the Rules of Criminal Procedure deprives the opposing party the opportunity to

adequately prepare for trial. “Modern trials must not be conducted on the basis of

ambush and surprise. Rather, the Rules of Criminal Procedure set forth the applicable

procedure to be followed for pretrial discovery.” State v. Moss, 4th Dist. Gallia No.

14CA2, 2015-Ohio-3651. The overall objective of the criminal rules of procedure is to

remove the element of gamesmanship from such proceedings. State v. Darmond, 135

Ohio St.3d 343, 2013–Ohio–966, 986 N.E.2d 971, at ¶ 19; State v. Wilson, 12th Dist.

Butler No. CA2012–12–254, 2013–Ohio–3877, at ¶ 14. However, because the sanction

of witness exclusion may infringe on a criminal defendant’s Sixth Amendment right to

present a defense, courts should endeavor to impose the least severe sanction for the

failure to comply with the rules of discovery. Lakewood v. Papadelis, 32 Ohio St.3d 1,

511 N.E.2d 1138 (1987). “It is only when exclusion acts to completely deny defendant

his or her constitutional right to present a defense that the sanction is impermissible.” Id.

at 5.
Washington App. No. 15CA25                                                                    20


       {¶47} “Before imposing the sanction of exclusion, the trial court must find that no

lesser sanction would accomplish the purpose of the discovery rules and that the state

would be prejudiced if the witnesses were permitted to testify.” Id. A trial court must

review the circumstances surrounding the Crim.R. 16 violation and consider whether the

prosecution “will be surprised or prejudiced by the witness’ testimony, the impact of

witness exclusion on the evidence at trial and the outcome of the case, whether

violation of the discovery rules was willful or in bad faith, and the effectiveness of less

severe sanctions.” Id.


                                         2. Analysis

       {¶48} Early in the proceedings Fouts’s counsel identified three potential trial

witnesses, who were the same three witnesses the state had identified: the victim, an

employee from Washington County Children’s Services, and Officer Warden. Later,

Fouts asked for and received new counsel, who did not supplement the initial disclosure

with any additional witnesses.

       {¶49} During opening statements Fouts’s counsel told the jury that Fouts’s wife

would be testifying. Out of the hearing of the jury, the state objected to the wife testifying

because she had not been previously disclosed as a witness. The trial court inquired

into the nature of the discovery exchanged between the parties and the timing of the

various witness disclosures. Defense counsel claimed that he had verbally identified the

wife as a witness at an earlier pretrial meeting. Neither the state nor the trial court could

recall this verbal disclosure. The trial court asked about the possible prejudice. The

state argued that it would be prejudiced if the wife was called as a witness. Although the

state conceded that Officer Warden talked briefly to the wife at the house, the state
Washington App. No. 15CA25                                                                  21


argued that it did not know what her testimony would be. The court informed defense

counsel that he would be permitted to call the wife if he allowed the state to speak to her

during a break. Defense counsel agreed to allow the state to speak to the wife. The trial

court overruled the state’s objection and allowed the wife’s testimony on the condition

that the state be permitted to talked to her during the lunch break that day. Thus, Fouts

was not completely denied his right to present a defense; rather the supplemental

surprise witness he identified in opening statement was permitted to testify.

       {¶50} After the court decided to allow the wife’s testimony, defense counsel

disclosed that he also planned to call Fouts’s daughter. Counsel claimed that he had

also verbally identified her as a witness at a pretrial. Again, neither the court nor the

state had a recollection of this verbal disclosure. The state objected to Fouts’s daughter

because Fouts had never disclosed her as a witness and the state had never spoken to

her. The trial court ruled that because defense counsel had not given formal written

discovery in the case and had not followed the discovery procedure, the court was not

going to permit Fouts to call his daughter.

       {¶51} After the lunch recess the state withdrew its objection to Fouts’s wife.

However, the state did not speak to the daughter and continued to object to her

testimony. The trial court indicated that it was going to stand by its earlier ruling and

permit testimony from the wife but sustain the state’s objection to testimony from the

daughter. Defense counsel did not disclose the nature or subject area of the daughter’s

expected testimony, nor did he proffer the daughter’s testimony into the record.

       {¶52} In Lakewood, supra, the trial court precluded the defendant from calling

any of his witnesses for his failure to comply with discovery rules, so the attorney for the
Washington App. No. 15CA25                                                                    22

defendant proffered the witnesses' testimony on the record. Lakewood, at 2, 4. The

Ohio Supreme Court found that Papadelis had been denied a fair trial because the

proffered testimony was material and relevant and if believed by the jury, could have led

to an acquittal. Id. at 4–6.

       {¶53} Here, the trial court made an inquiry into the circumstances and, rather

than imposing the most severe sanction of excluding both witnesses, imposed a lesser

sanction of allowing one of the two witnesses because the state had previously spoken

to her and had the ability to interview her during the lunch break. Neither the police nor

the prosecutor had spoken previously to the daughter and the state maintained its

objection to her testifying.

       {¶54} Fouts contends that his daughter’s testimony was crucial to his defense

because of text messages between the victim and the daughter. The record shows that

the victim sent text messages to the daughter during the course of the evening, and that

the state had introduced screen shots of those text messages at trial. Thus the content

of the text messages was available to Fouts for use in his defense. Fouts also contends

that his wife’s testimony at trial was that the victim initially told the wife that his daughter

was “blowing things out of proportion.” He claims that his daughter’s testimony was

necessary to have a complete understanding of the events that night. Yet, he did not

proffer her testimony as required by Evid R.103(A)(2). And the wife’s testimony was

presented after the trial court ruled to exclude the daughter as a witness and thus was

not a factor the trial court could have considered. Likewise, his daughter was not

present during the encounter between her father and the victim and therefore did not

have first-hand testimony of the events. Finally, Fouts was not prevented from cross-
Washington App. No. 15CA25                                                                   23


examining the victim concerning her statements to Fouts’s wife. Thus in the absence of

a proffer, it appears that the daughter’s testimony could add little, if anything, to the

evidence. More importantly, in the absence of a proffer the issue has not been

preserved for review. State v. Mitts, 81 Ohio St.3d 223, 227, 690 N.E.2d 522 (1998),

applying Evid. R.103(A)(2).

       {¶55} Fouts did not proffer his daughter’s testimony; there is nothing in the

record or context from which we can conclude that the daughter would have relevant,

non-redundant testimony. The trial court inquired into the circumstances concerning

Fouts’s discovery violation and the prejudice to the prosecution. Given those

circumstances the court imposed the least severe sanction consistent with the purpose

of the rules of discovery. The trial court did not act arbitrary, unreasonable, or

unconscionable when it excluded the testimony of the daughter as a discovery sanction.

       {¶56} Because we find no error in the trial court’s application of Crim.R. 16(L)(1),

the premise for Fouts’s constitutional challenge does not exist. In its absence there can

be no merit to his conclusion that the trial court violated his rights under the Sixth and

Fourteenth Amendments, and our analysis ends.



                                B. Prosecutorial Misconduct

       {¶57} Fouts argues that the prosecutor’s failure to interview his daughter during

the lunch break and refusal to withdraw its objection to her testimony constitutes

prejudicial prosecutorial misconduct, which also resulted in a violation of the Sixth and

Fourteenth Amendments. The structure of our analysis is the same as that in Section IV

(A).
Washington App. No. 15CA25                                                                    24


                              1. Standard of Review and Law

       {¶58} Fouts did not object to the prosecutor’s conduct during trial, raising it for

the first time on appeal. Failure to object constitutes forfeiture of any challenges on

appeal except for plain error. State v. Black, 4th Dist. Ross No. 12CA3327, 2013-Ohio-

2105, ¶ 20-21 appeal not allowed, 136 Ohio St.3d 1558, 2013-Ohio-4861, 996 N.E.2d

985, ¶ 20-21 (2013); State v. Garvin, 197 Ohio App.3d 453, 2011–Ohio–6617, 967

N.E.2d 1277, ¶ 51 (4th Dist.). Thus, the doctrine of plain error applies.

       {¶59} Under Crim.R. 52(B) we may notice plain errors or defects affecting

substantial rights. “Inherent in the rule are three limits placed on reviewing courts for

correcting plain error.” State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873

N.E.2d 306, ¶ 15. “ ‘First, there must be an error, i.e., a deviation from the legal rule. * *

* Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an

error must be an ‘obvious' defect in the trial proceedings. * * * Third, the error must have

affected ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the

trial court's error must have affected the outcome of the trial.' “ Id. at ¶ 16, 873 N.E.2d

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

notice plain error “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. “Reversal is

warranted only if the outcome of the trial clearly would have been different absent the

error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001).

       {¶60} “To evaluate allegations of prosecutorial misconduct, we ‘must determine

(1) whether the prosecutor's conduct was improper and (2) if so, whether it prejudicially

affected [the defendant's] substantial rights.’ ” State v. Thompson, 141 Ohio St.3d 254,
Washington App. No. 15CA25                                                                 25


284, 2014-Ohio-4751, 23 N.E.3d 1096, 1134, ¶ 162 cert. denied, 136 S.Ct. 83 (2015)

quoting State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 121.

“The conduct of a prosecuting attorney during trial cannot be made a ground of error

unless the conduct deprives defendant of a fair trial.” State v. Apanovitch, 33 Ohio St.3d

19, 24, 514 N.E.2d 394 (1987).

                                           2. Analysis

       {¶61} Fouts did not identify his wife as a witness until his opening statement.

The state objected to her after the jury was excused and the entire discussion

concerning the defense witnesses occurred outside of the jury’s presence. Then, only

after the court agreed to allow Fouts’s wife to testify, did Fouts identify his daughter as a

witness. The prosecutor objected on the basis of surprise, spent his lunch break

interviewing one of Fouts’s surprise witnesses, and did not interview the daughter in

light of the court’s ruling that she would not testify.

       {¶62} We find nothing improper about the prosecutor’s objection to defense

counsel’s surprise witnesses or subsequent efforts to interview only one of them during

a lunch break. Discovery under the Rules of Criminal Procedure removes the element of

gamesmanship, surprise and ambush. All parties are entitled to seek their enforcement

and have the opportunity to adequately prepare for trial. State v. Darmond, 135 Ohio

St.3d 343, 350, 2013-Ohio-966, 986 N.E.2d 971, 977, ¶ 29 (2013) (“Current Crim.R.

16(A) applies to ‘all parties in a criminal case,’ and ‘all duties and remedies’ of the rule

apply ‘to the defense and the prosecution equally’ and are ‘intended to be reciprocal.’ ”).

We reject Fouts’s claim that the prosecutor engaged in misconduct. Because we reject
Washington App. No. 15CA25                                                                26


his premise of prosecutorial misconduct, we also reject his conclusion that there was a

resulting violation of his constitutional rights to due process and compulsory process.

       {¶63} Fouts also argues that his counsel’s failure to supplement discovery,

which resulted in the exclusion of his daughter’s testimony, constituted ineffective

assistance of counsel. We address this argument when we address Fouts’s next

assignment of error.

       {¶64} We overrule Fouts’s second assignment of error.


                           V. Ineffective Assistance of Counsel

       {¶65} Fouts argues that his trial counsel provided constitutionally ineffective

assistance when he: (1) failed to provide discovery of defense witnesses; (2) gave a

poor closing argument; and (3) failed to request a lesser included offense of sexual

imposition.

                             A. Standard of Review and Law

       {¶66} In our review of the claim of ineffective assistance of counsel, we must

indulge in “a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Strickland at 689. This is essentially a de novo review.

       {¶67} To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must establish (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 result of the proceeding would

have been different. State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d
Washington App. No. 15CA25                                                                   27

1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674; State v. Knauff, 4th Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 23. The

defendant has the burden of proof because in Ohio, a properly licensed attorney is

presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860

N.E.2d 77, ¶ 62. Failure to satisfy either part of the test is fatal to the claim. Strickland at

697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).

                                         B. Analysis

                                1. Failure to Supplement Discovery

       {¶68} Fouts claims that his attorney provided ineffective counsel because he did

not supplement a prior disclosure with two additional witnesses. Even if we assume that

his counsel’s failure to disclose two additional witnesses was deficient, Fouts cannot

show resulting prejudice. He was permitted to call one of his surprise witnesses, his

wife, at trial. And, as we noted above, we cannot discern any prejudice resulting from

the trial court’s exclusion of his daughter’s testimony. Fouts did not proffer his

daughter’s expected testimony and there is nothing in the record that would suggest her

testimony would be anything more than marginally relevant. Without some evidence that

the daughter could have added anything of significant benefit to Fouts’s defense, we are

left to speculate that he suffered prejudice. We will not presume prejudice from a silent

record. Fouts cannot prevail on a claim of ineffective assistance of counsel.

                                        2. Closing Argument

       {¶69} Fouts argues that his counsel gave a poor closing argument, which fell

below the objective standard of reasonably effective assistance of counsel. Counsel’s

decision on whether to give an opening statement or closing argument and how to
Washington App. No. 15CA25                                                                28

formulate and deliver them are tactical decisions. State v. Bradley, 42 Ohio St.3d

136,144, 538 N.E.2d 373, 381-382 (1989) (rejecting defendant’s ineffective assistance

of counsel claim that his counsel's closing argument was “too brief, passionless and

themeless”):

       Appellant argues that counsel's failure to make an opening statement and
       counsel's closing statement during the guilt phase which purportedly failed to
       humanize defendant and emphasized the nature of the crime constituted
       ineffective assistance of counsel. Given, however, the “strong presumption” that
       counsel's performance constituted reasonable assistance, counsel's actions
       must be viewed as tactical decisions and do not rise to the level of ineffective
       assistance. In any event, appellant does not show that there is a “reasonable
       probability” that but for counsel's actions, the result of the case would have been
       different. Therefore, the burden of proving prejudice has not been met.
Id. at 144; State v. Burke, 73 Ohio St.3d 399, 653 N.E.2d 242 (1995) (recognizing that

the waiver of closing argument to the jury does not ipso facto constitute ineffective

assistance of counsel, and that the waiver might simply constitute a matter of trial

strategy).


       {¶70} Counsel’s closing argument, although brief, was a focused attack on the

credibility of the victim. And Fouts does not show how, but for the counsel’s closing

argument, the outcome of his trial would have been different in light of his failure to

refute moving her shirt and admission that he wrapped his arms around the victim,

pulled her hair back and kissed her. Therefore, even if we were to assume counsel’s

brief closing argument was deficient, Fouts has not met the burden of proving prejudice.

               3. Failure to Request a Lesser Included Offense Jury Instruction

       {¶71} Fouts argues that his counsel should have requested a jury instruction on

the lesser included offense of sexual imposition because the state’s proof on the

element of force necessary to prove gross sexual imposition was very weak. “Force” is
Washington App. No. 15CA25                                                                 29


an element of gross sexual imposition and means “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” R.C.

2901.01(A)(1). The state must present some evidence of force in addition to the sexual

contact.

       {¶72} Sexual imposition, in violation of R.C. 2907.06(A)(1) is a lesser include

offense of gross sexual imposition, in violation of R.C. 2907.05(A)(1). See State v.

Staab, 9th Dist. Lorain App. No. 04CA8612, 2005-Ohio-3323, ¶ 7 (noting that the

difference between the two crimes is the additional element of force necessary in gross

sexual imposition).

       {¶73} Trial counsel's failure to request instructions on lesser included offenses is

often a matter of trial strategy and does not per se establish ineffective assistance of

counsel. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996), citing State v.

Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980), cert. denied, 449 U.S. 879, 101

S.Ct. 227, 66 L.Ed.2d 102 (1980). As noted by the Supreme Court of Ohio, the historical

development of trial strategies shows that the lesser included offense jury instruction

can sometimes favor the state and sometimes favor the defendant. State v. Wine, 140

Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207. Where a defendant wishes to pursue

an “all or nothing” defense strategy, counsel may decide not to request the lesser

offense instruction. “[D]efendant's counsel's decision not to request an instruction on

lesser included offenses—seeking acquittal rather than inviting conviction on a lesser

offense—was a matter of trial strategy.” Wine at ¶ 30.

       {¶74} Here, in spite of Fouts’s argument that the “force” element of gross sexual

imposition “was very weak,” defense counsel may have decided to pursue the strategy
Washington App. No. 15CA25                                                                  30


of obtaining an acquittal rather than inviting a conviction on the lesser offense of sexual

imposition. And in fact, counsel was successful in obtaining an acquittal on two other

charges.

       {¶75} More importantly, counsel is not required to pursue a vain act. State v.

Sowards, 4th Dist. Gallia App. No. 09CA8, 2011-Ohio-1660, ¶ 20. Under the evidence

presented at trial, Fouts was not entitled to an instruction on sexual imposition.

       {¶76} Determining whether a lesser included offense instruction is warranted

involves a two-part test. State v. Deanda, 136 Ohio St.3d 18, 2013–Ohio–1722, 989

N.E.2d 986, ¶ 6; State v. Wilson, 4th Dist. Scioto App. No. 13CA3542, 2015-Ohio-2016,

¶ 42-44. First, a trial court must determine if the requested charge is a lesser included

offense of the charged crime. Id.; State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d

311 (1987). Second, the court must consider the evidence:

       “The trial court, after reviewing the evidence, determines whether an
       instruction on lesser included offenses is appropriate. The trial court must
       give an instruction on a lesser included offense if under any reasonable
       view of the evidence it is possible for the trier of fact to find the defendant
       not guilty of the greater offense and guilty of the lesser offense.”

State v. Wine, 140 Ohio St.3d 409, 2014–Ohio–3948, 18 N.E.3d 1207, ¶ 34. However,

“[t]he mere fact that an offense can be a lesser included offense of another offense

does not mean that a court must instruct on both offenses where the greater offense is

charged.” Id. at ¶ 22. Instead, “the quality of the evidence offered * * * determines

whether a lesser-included-offense charge should be given to a jury.” Id. at ¶ 26. A lesser

included offense instruction requires more than “some evidence” that a defendant may

have acted in such a way as to satisfy the elements of the lesser offense. State v.

Shane, 63 Ohio St.3d 630, 633, 590 N.E.2d 272 (1992). “To require an instruction * * *
Washington App. No. 15CA25                                                               31


every time ‘some evidence,’ however minute, is presented going to a lesser included (or

inferior-degree) offense would mean that no trial judge could ever refuse to give an

instruction on a lesser included (or inferior-degree) offense.” Id. at 633. Furthermore, a

court must not allow a jury to consider “ ‘compromise offenses which could not possibly

be sustained by the adduced facts.’ “ Wine at ¶ 22, quoting State v. Wilkins, 64 Ohio

St.2d 382, 387, 415 N.E.2d 303 (1980).

       {¶77} When a court reviews the quality of the evidence offered, the court must

consider “[t]he whole of the state's case.” State v. Bethel, 110 Ohio St.3d 416, 2006–

Ohio–4853, 854 N.E.2d 150, ¶ 141 (2006), citing State v. Goodwin, 84 Ohio St.3d 331,

345, 703 N.E.2d 1251 (1999). “An instruction on a lesser-included offense is required

only where the evidence presented at trial would reasonably support both an acquittal

on the crime charged and a conviction on the lesser-included offense.” State v. Carter,

89 Ohio St.3d 593, 600, 734 N.E.2d 345 (2000).

       {¶78} As we previously noted, sexual imposition is a lesser include offense of

gross sexual imposition; the difference between the two crimes is the additional element

of force necessary in gross sexual imposition. State v. Staab, supra. Force need not be

overt or physically brutal. State v. Burton, 4th Dist. Gallia App. No. 05CA3, 2007-Ohio-

1660, ¶ 37. Courts have found the element of force satisfied when the state presented

evidence that the defendant manipulated or moved the victim’s body or clothing,

reached around a victim’s body to block their means of escape, or confined a victim in a

car. See generally State v. Burton, supra; State v. Staab, supra; State v. Byrd, 8th Dist.

Cuyahoga App. No. 82145, 2003-Ohio-3958.
Washington App. No. 15CA25                                                                32


       {¶79} A relaxed standard of showing force applies where the defendant holds a

position of authority over a child victim. State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d

304 (1988), paragraph one of the syllabus; State v. Riffle, 110 Ohio App.3d 554, 674

N.E.2d 1214 (1996). Where the case “involves a child and that child's parent, or person

who stands in loco parentis, subtle and psychological forms of coercion sufficiently

show force.” State v. Shadoan, 4th Dist. Adams No. 03CA764, 2004-Ohio-1756, ¶ 21.

                                       B. Analysis

       {¶80} To support his contention Fouts argues that the “force” element of gross

sexual imposition was supported by very weak evidence. He claims that the state’s only

evidence of force was the testimony of the victim. He is wrong on both contentions.

       {¶81} Just because the state’s evidence is “weak” does not entitle the defendant

to an instruction on a lesser included offense. The proper test is proclaimed in State v.

Carter, supra. The victim testified that Fouts pulled her onto his lap, held his arms

around her, pulled her hair aside, and pulled down her shirt. The record also includes

Fouts’s admission that he held his arms around her in a hug and pulled her hair aside.

And, he did not refute or otherwise contest the evidence that he pulled down her shirt.

       {¶82} Although there was some evidence that Fouts was a father figure and the

victim called him “dad”, we need not determine whether Eskridge’s more relaxed

standard of “subtle” or “psychological” coercion applies. The record contains sufficient

evidence of physical force without applying the relaxed standard. There was

uncontroverted evidence of force from the victim’s testimony that Fouts held his arms

around her and pulled down her shirt, moved her hair, and kissed her against her will.

And in his confession Fouts corroborated the victim’s testimony and admitted he held
Washington App. No. 15CA25                                                                 33


her in a hug and pulled her hair aside. He did not refute her contention that he moved

her shirt. Thus, counsel was not required to request an instruction on the lesser

included offense of sexual imposition. Under any reasonable view of the evidence,

including his admissions, the jury could not possibly find Fouts not guilty of the greater

offense of gross sexual imposition but guilty of the lesser offense. Because Fouts was

not entitled to a lesser offense jury instruction, his counsel was not required to request

one

       {¶83} We overrule Fouts’s third assignment of error.

      VIII. Trial Court’s Failure to Give a Lesser Included Offense Jury Instruction

       {¶84} Fouts argues that the trial court should have instructed the jury, sua

sponte, on the lesser included offense of sexual imposition because State v. Wine,

supra, requires that the trial court give the jury a lesser included offense instruction

when the evidence requires it. That may be true as an abstract statement of law but

Fouts overlooks the evidence in this record.

       {¶85} Just as trial counsel was not required to request a jury instruction that was

not warranted by the evidence, likewise, the trial court had no duty to sua sponte give a

lesser included offense instruction based on our record. We already determined that

Fouts was not entitled to a jury instruction on sexual imposition because of the

testimony of the victim and his own admission of the use of force, e.g. holding her in his

arms, moving her shirt and hair aside to kiss her against her will. Accordingly, we find

no merit in this fourth assignment of error.

                                     III. CONCLUSION
Washington App. No. 15CA25                                                          34


       {¶86} Having found no prejudicial error under any of Fouts’s assignment of

errors, we affirm the judgment of the trial court.


                                                              JUDGMENT AFFIRMED.
Washington App. No. 15CA25                                                                  35


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
McFarland, J: Concurs in Judgment Only.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
