[Cite as State v. Brumbach, 2011-Ohio-6635.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



STATE OF OHIO,                                 :      APPEAL NO. C-100792
                                                      TRIAL NO. B-0908735
          Plaintiff-Appellee,                  :

        vs.                                    :

MATTHEW BRUMBACH,                              :           O P I N I O N.

          Defendant-Appellant.                 :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: December 23, 2011




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                   OHIO FIRST DISTRICT COURT OF APPEALS



FISCHER, Judge.

       {¶1}   Defendant-appellant Matthew Brumbach was sentenced to 50 years to

life in prison after a jury found him guilty of five counts of rape. Brumbach was

designated a Tier III sex offender or child victim offender under the current version

of R.C. Chapter 2950, 2007 Am.Sub.S.B. No. 10 (“S.B. 10”). Brumbach now appeals

his convictions, raising nine assignments of error. Because we determine that S.B. 10

cannot be applied to Brumbach’s offenses, we remand this cause for resentencing

under the law in effect at the time Brumbach committed the offenses. We affirm the

remainder of the trial court’s judgment.

                        Factual and Procedural Background

       {¶2}   Brumbach was indicted on December 31, 2009, for rape after his

adopted daughter disclosed that Brumbach had sexually abused her. The abuse was

uncovered initially because the victim struggled with drug abuse for which she

received counseling. After one of the counseling sessions, the victim admitted to her

mother that her father had harmed her. The police became involved, and the victim

was interviewed by a counselor at the Mayerson Center, where she stated that she

had been repeatedly sexually abused by Brumbach. Brumbach had been married to

the victim’s mother, and he had adopted the victim when she was very young.

Although Brumbach and the victim’s mother had divorced, Brumbach had continued

to spend time with his daughter. The sexual abuse had begun when the victim was

seven years old. The abuse had occurred almost every time the victim had been with

Brumbach, and the abuse had escalated over time. Brumbach had threatened to hurt

the victim’s mother if the victim told anyone about the abuse.




                                           2
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶3}   After the victim disclosed the abuse, one of the detectives assigned to

the case recorded a telephone conversation between the victim and Brumbach. The

victim called Brumbach pretending that she had written a diary that had detailed

everything that had happened between her and Brumbach, and she told Brumbach

that her stepfather had found the diary. Brumbach begged the victim to tell her

family that the diary was just a “fantasy,” to which the victim replied that no one

would believe that the diary was a fantasy. Brumbach responded that he would go to

prison, and when the victim asked why, Brumbach said he would be charged with

“sex with a minor.”

       {¶4}   Brumbach entered a plea of not guilty to the rape charges, and the

matter proceeded to a jury trial. At the time of trial, the victim resided in a juvenile-

treatment facility in Indiana, and the victim’s mother indicated that she would not

honor a subpoena. As a result, the prosecution took a videotaped deposition of the

victim, which was played for the jury at trial. The victim testified in her deposition

with detail regarding specific instances of abuse that she was able to recall. She

testified that the abuse had occurred almost every time she had visited her father

since the age of seven. She stated that the abuse had stopped once she had reached

the end of her eighth-grade school year. She had begun using drugs to mask her pain

and embarrassment.

       {¶5}   The jury found Brumbach guilty of three counts of rape under R.C.

2907.02(A)(1)(b) and two counts of rape under R.C. 2907.02(A)(2). The trial court

sentenced Brumbach to ten years to life in prison on the rape counts under R.C.

2907.02(A)(1)(b) and ten years in prison on the rape counts under R.C.




                                           3
                   OHIO FIRST DISTRICT COURT OF APPEALS



2907.02(A)(2) for an aggregate sentence of 50 years to life in prison. This appeal

ensued.

                                      Speedy Trial

       {¶6}   Brumbach’s first assignment of error alleges that the rape charges

pending against him should have been dismissed for lack of a speedy trial. Under

R.C. 2945.71(C)(2), a defendant charged with a felony must be brought to trial within

270 days after the defendant’s arrest. For purposes of calculating the 270-day time

period, R.C. 2945.71(E) provides that each day the defendant is jailed counts as three

days. Because Brumbach was jailed prior to trial, his trial must have occurred within

90 days of his arrest. The time period within which a defendant must be tried is

tolled by the defendant’s request for a continuance, or for another reasonable

continuance, and for “[a]ny period of delay necessitated by reason of a * * * motion,

proceeding, or action made or instituted by the accused[.]” R.C. 2945.72(H) and (E).

       {¶7}   Brumbach argues on appeal that the trial court erred in its speedy-trial

calculation because the trial court should have counted an additional 15 days for the

time between January 20, 2010, and February 4, 2010. Brumbach requested a

continuance on January 20, and the entry granting the requested continuance

indicated that the case was continued until January 3, 2010. At the time of the entry,

January 3, 2010, had passed, and thus Brumbach argues that the continuance was

not effective to toll the speedy-trial time. The record, however, indicates that the

continuation date of January 3 is nothing more than a scrivener’s error and that both

the parties and the court intended the January 20 entry to continue the case until

February 3—not January 3. After the January 20 entry was filed, the parties next

appeared before the court on February 3, when Brumbach requested a one-day

                                          4
                   OHIO FIRST DISTRICT COURT OF APPEALS



continuance. Therefore, the trial court did not err in tolling the time for a speedy

trial between January 20 and February 4 under R.C. 2945.72(H).

       {¶8}   Brumbach also argues that the trial court should have counted an

additional nine days in the speedy-trial calculation for the time between July 10,

2010, and July 19, 2010. Brumbach argues that the June 2, 2010, entry by the court

granted a continuance, at Brumbach’s request, to July 10, but nothing in the record

continued the case from July 10 to July 19. The state contends that the June 2 entry

continued the case to July 19, and not July 10, because July 10 was a Saturday, and

the parties did not appear before the court until July 19. It is not clear from the

record whether the June 2 entry continued the case until July 19, so we assume for

our calculation purposes that Brumbach is correct in arguing that nine days should

have been added to the speedy-trial time.

       {¶9}   Brumbach further argues that the trial court should have counted the

period between August 2, 2010, and August 17, 2010, in the speedy-trial calculation

because the state failed to use due diligence to obtain the victim as a witness. On

July 27, 2010, the state requested a continuance from August 2 until August 9 to

secure the availability of the police officer as a witness—not the victim. Therefore,

the trial court tolled the speedy-trial time from August 2 to August 9 as a reasonable

continuance under R.C. 2945.72(H).

       {¶10} The trial court granted the state a continuance on August 9 until

August 17 to secure the victim’s testimony. On August 12, however, Brumbach filed a

motion to dismiss for lack of a speedy trial, and that same day the court entered an

order continuing the case until August 17. Assuming that Brumbach is correct in

arguing that the continuance granted on August 9 did not toll the speedy-trial time

                                            5
                   OHIO FIRST DISTRICT COURT OF APPEALS



because the state failed to use due diligence, this would not have changed the trial

court’s calculation. The trial court counted the time between August 9 and August 12

in its calculation against the state, and the trial court correctly determined that the

speedy-trial time was tolled when Brumbach filed his motion to dismiss.           R.C.

2945.72(E).

       {¶11} The trial court determined that, as of August 17, 2010, 72 days had

passed since Brumbach’s arrest for purposes of the speedy-trial statute. Even if we

assume that the trial court erred by not counting the time period from July 10

through July 19 in its calculation, this would have brought the total number of days

to 81. The time periods from August 17 through September 12 and from September

13 through October 19 were tolled under R.C. 2945.72(H) because of continuances at

Brumbach’s request. Brumbach’s trial began on October 20. Therefore, Brumbach’s

trial occurred within the 90-day requirement.

       {¶12} Brumbach’s first assignment of error is overruled.

                         Sufficiency and Weight of the Evidence

       {¶13} In Brumbach’s second, third, and fourth assignments of error,

Brumbach contests the sufficiency and the weight of the evidence adduced to support

his convictions and argues that the trial court improperly denied his Crim.R. 29

motions for acquittal.

       {¶14} A sufficiency claim and the denial of a Crim.R. 29 motion for an

acquittal are considered under the same standard of review. State v. Gorrasi, 1st

Dist. No. C-090292, 2010-Ohio-2875, ¶11. In a challenge to the sufficiency of the

evidence, the question is whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found all the

                                          6
                    OHIO FIRST DISTRICT COURT OF APPEALS



essential elements of the crime beyond a reasonable doubt. State v. Thompkins, 78

Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. By contrast, in resolving a

challenge to the weight of the evidence, we must review the entire record, weigh the

evidence, consider the credibility of the witnesses, and determine whether the trier of

fact clearly lost its way and created a manifest miscarriage of justice. Id. at 387. A

new trial should only be granted in the exceptional case where the evidence weighs

heavily against the conviction. Id. Ultimately, the “weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of fact.” State v.

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

       {¶15} Brumbach was convicted of three counts of rape under R.C.

2907.02(A)(1)(b) and two counts of rape under R.C. 2907.02(A)(2).                 R.C.

2907.02(A)(1)(b) provides that, “[n]o person shall engage in sexual conduct with

another * * * when * * * [t]he other person is less than thirteen years of age, whether

or not the offender knows the age of the other person.” R.C. 2907.02(A)(2) provides

that “[n]o person shall engage in sexual conduct with another when the offender

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

       {¶16} The victim testified that her father had begun engaging in sexual

conduct with her at the age of seven. The sexual abuse had continued and had

become progressively worse. The victim remembered, with detail, specific instances

of sexual conduct with her father, and she testified that Brumbach had threatened to

harm her mother if she told anyone about the abuse. She testified that the abuse had

stopped at the end of her eighth-grade year.        The jury also heard a recorded

telephone conversation between the victim and Brumbach, where Brumbach had

stated that he would be going to jail for having sex with a minor.

                                           7
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17} Based upon the telephone recording, the victim’s testimony, as well as

the other evidence presented at trial, a rational trier of fact could have found the

elements of rape proven beyond a reasonable doubt.              Furthermore, we cannot

determine that the jury clearly lost its way and created a manifest miscarriage of

justice in finding Brumbach guilty. We overrule Brumbach’s second, third, and

fourth assignments of error.

                                   Excessive Sentence

       {¶18} In his fifth assignment of error, Brumbach alleges that the trial court

erred in imposing maximum, consecutive sentences for his offenses, and that his

aggregate sentence of 50 years to life was excessive. In determining whether a

sentence is excessive, a reviewing court must first determine whether the sentence

was clearly and convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶14-17. If the sentence was not contrary to law,

the appellate court then reviews the sentence under an abuse-of-discretion standard.

Id. Where the trial court does not explicitly state on the record its consideration of

the applicable sentencing statutes, the appellate court nonetheless presumes that the

trial court properly considered those statutes. Id. at fn. 4.

       {¶19} Brumbach concedes that the sentences he received were within the

applicable statutory ranges for rape offenses and were not contrary to law, but

Brumbach contends that his aggregate sentence was an abuse of discretion. We

cannot agree. The evidence presented at trial revealed that Brumbach had engaged

in continued sexual abuse of his adopted daughter. The abuse had progressed over

time, and Brumbach had used psychological force to keep the victim from telling

anyone. The victim had convinced her father to stop the abuse, and soon after, the

                                            8
                    OHIO FIRST DISTRICT COURT OF APPEALS



abuse had been uncovered during the victim’s counseling. At the time of trial, the

victim resided in a juvenile-treatment facility. In light of the record, we cannot say

that the trial court’s imposition of maximum, consecutive sentences in this case was

an abuse of discretion, and we overrule the fifth assignment of error.

                            Use of Videotaped Deposition

       {¶20} In his sixth assignment of error, Brumbach contends that the trial

court erred in allowing the victim to testify via a videotaped deposition. In general, a

witness must testify at trial in person, but Crim.R. 15 allows for the use of a

videotaped deposition if a witness is unavailable, as defined in Evid.R. 804(A), which

means that the party offering the deposition has been unable to procure the

attendance of the witness by subpoena, or that the witness is out of state. State v.

Austin (1998), 131 Ohio App.3d 329, 338, 722 N.E.2d 555.

       {¶21} At the time of trial, the minor victim resided in a juvenile-treatment

facility in Indiana, and the victim’s mother told the prosecutor that she would not

honor the subpoena.      Brumbach and his counsel were present at the victim’s

deposition and had an opportunity to cross-examine the victim. Therefore, the use

of the victim’s videotaped deposition satisfied the requirements of Crim.R. 15.

Brumbach nevertheless contends that the state should have secured the victim’s

availability pursuant to R.C. 2939.27. R.C. 2939.27 allows a judge to recommend

that an out-of-state witness be taken into custody to procure that witness’s

testimony. Neither Crim.R. 15 nor Evid.R. 804 require that the trial court use the

procedure under R.C. 2939.27 before admitting a videotaped deposition. The trial

court stated on the record that it was hesitant to use this procedure because it would

require holding the victim in custody before and during the trial.

                                           9
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} Brumbach argues that the error in admitting the videotaped deposition

was further compounded when the trial court sustained various objections made by

the state to defense counsel’s questions regarding accusations of abuse by other men

made by the victim’s mother. The trial court’s admission or exclusion of evidence is

subject to an abuse-of-discretion standard. State v. Sage (1987), 31 Ohio St.3d 173,

510 N.E.2d 343, paragraph two of the syllabus. During the victim’s deposition, the

state objected to various questions Brumbach’s counsel posed to the victim regarding

allegedly false sexual-abuse allegations made by the victim’s mother against the

victim’s grandfather. We fail to see how this line of questioning is relevant, and the

trial court correctly excluded it pursuant to Evid.R. 402.

       {¶23} The trial court did not err in admitting the victim’s deposition

testimony, and the sixth assignment of error is overruled.

                  Motion to Suppress the Telephone Recording

       {¶24} In his seventh assignment of error, Brumbach argues that the recorded

telephone conversation between him and the victim should have been suppressed.

R.C. 2933.51 et. seq., Ohio’s electronic-surveillance law, generally prohibits

interception of wire, oral, or electronic communications without a warrant. R.C.

2933.52(B)(3) provides an exception, which allows a law enforcement officer to

intercept a communication, even where the officer is not a party to the

communication, if the officer has prior consent of one of the parties to the

communication.

       {¶25} Brumbach argues that the recording was illegally obtained under R.C.

2933.52(B)(3) because the victim’s consent to the taping had not been freely given.

Brumbach contends that the name of the detective, to whom the victim had given her

                                          10
                      OHIO FIRST DISTRICT COURT OF APPEALS



consent to record the conversation, did not appear on the police consent form. At

the hearing on the motion to suppress, however, the detective testified that he had

obtained the victim’s consent, and the detective had stated his name on the recording

before the victim had placed the call to Brumbach. Moreover, nothing in the record

indicates that the victim had been coerced into recording Brumbach, and the victim

testified in her deposition that no coercion had occurred.

       {¶26} We cannot determine that the trial court erred in overruling

Brumbach’s motion to suppress the telephone recording. The seventh assignment of

error is overruled.

                               Prosecutorial Misconduct

       {¶27} In his eighth assignment of error, Brumbach contends that the state

committed prosecutorial misconduct when the prosecutor, in closing, made

derogatory remarks about the defense counsel. To obtain a reversal on the ground of

improper remarks made during closing argument, the defendant must demonstrate

that the improper remarks deprived the defendant of a fair trial. State v. Hirsch

(1998), 129 Ohio App.3d 294, 309-310, 717 N.E.2d 789. Brumbach cites to State v.

Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883, 886, where the court determined

that a prosecutor’s derogatory comments about defense counsel were an improper

attempt to sway the jury. In Smith, the prosecutor referred to the defense’s case as

“lies,” “garbage,” and “a well conceived and well rehearsed lie,” and the prosecutor

accused defense counsel of eliciting perjured testimony. Id. at 885.

       {¶28} In this case, defense counsel objected to the following statement made

by the prosecutor during closing argument: “Mr. Haas insinuated -- I can’t believe

he did this -- insinuated in this case that the victim is using sex as a weapon. The

                                          11
                    OHIO FIRST DISTRICT COURT OF APPEALS



victim of a rape by her father from the time she was seven years old is using sex as a

weapon. That’s insulting.” (T.p. 954.)

       {¶29} The prosecutor’s statement in Brumbach’s case does not reach the

same level of impropriety as those statements made in Smith, and we cannot

determine that the prosecutor’s statement regarding defense counsel was improper.

Moreover, even if the statement was improper, Brumbach cannot show how the

prosecutor’s statement resulted in any prejudice to his case in light of the evidence

against him. We overrule Brumbach’s eighth assignment of error.

                              Sex-Offender Classification

       {¶30} In his ninth assignment of error, Brumbach argues, relying primarily

on State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, that his

Tier III sexual-offender classification under S.B. 10 is unconstitutional and must be

vacated. Nothing in the record shows definitively that a crime occurred on or after

January 1, 2008, the effective date of S.B. 10.        Therefore, the defendant’s sex-

offender classification falls under Megan’s Law. See id.

       {¶31} In conclusion, we sustain Brumbach’s ninth assignment of error to the

extent that we reverse the judgment of the trial court designating Brumbach as a Tier

III sex offender. We remand for resentencing under the sexual-offender law in effect

at the time Brumbach committed the offenses.

                      Judgment affirmed in part, reversed in part, and cause remanded.

HILDEBRANDT, P.J., and SUNDERMANN, J., concur.


Please Note:
       The court has recorded its own entry on the date of the release of this opinion.



                                           12
