[Cite as State v. Burden, 2013-Ohio-1628.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 2012-CA-00074
BERT S. BURDEN                                :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Stark County
                                                  Court of Common Pleas, Case No.2011-
                                                  CR-1447

JUDGMENT:                                         Affirmed




DATE OF JUDGMENT ENTRY:                           April 22, 2013

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JOHN FERRERO                                      JACOB WILL
BY: RENEE WATSON                                  116 Cleveland Avenue N.W.
110 Central Plaza South, Ste. 510                 808 Courtyard Centre
Canton, OH 44702-1413                             Canton, OH 44702
[Cite as State v. Burden, 2013-Ohio-1628.]


Gwin, P.J.

        {¶1}     Appellant, Burt Burden [“Burden”], appeals from the June 26, 2012

judgment entry of the Stark County Court of Common Pleas convicting him of five

counts of gross sexual imposition, three of which were felonies of the third degree and

two of which were felonies of the fourth degree. Plaintiff-appellee is the State of Ohio.

                                         Facts and Procedural History

        {¶2}     On October 12, 2011, Burden was indicted on four counts of rape in

violation of R.C. 2907.02, felonies of the first degree. Burden was also indicted on six

counts of gross sexual imposition in violation of R.C. 2907.05 The following evidence

was adduced at trial.

        {¶3}     J.A. was born in 1980. Her aunt Connie is married to Burden. During the

relevant time frame, Connie's son Dustin, his wife Melanie and their two children also

lived with Connie and Burden. J.A. often visited her aunt as a child, and when she

became a teen, would go visit as well as to babysit Dustin's children.

        {¶4}     J.A. testifed Burden began inappropriately touching her when she was

about 8 years old. Connie and Burden had a large bed and early on, J.A. and her sister

S.C. slept in their bed with them. Burden would touch her when they were in his bed. He

would also touch her inappropriately when they were on the sofa. On the sofa, he would

put a blanket over them, then fondle, and digitally penetrate her vagina. While he

assaulted her, he would tell J.A. she was pretty and that she was his favorite.

        {¶5}     Burden would also enter the bathroom while J.A. was showering to watch

her. When no one was around, Burden would expose himself and masturbate in front of

J.A.
Stark County, Case No. 2012-CA-00074                                                    3


        {¶6}     On cross-examination, J.A. stated that no one contacted her in 1999

regarding an investigation about the abuse. J.A. admitted that she told her aunt that she

thought the abuse was just a bad dream.

        {¶7}     S.C. the 29-year-old niece of Burden testified Burden’s inappropriate

behavior began with him exposing himself to her and masturbating in front of her. She

recalls one early incident when Burden, fresh from the shower, came into the living

room naked and asked her to dry his back. Later, he began touching her when both

were seated on the sofa. He would start by rubbing her back, but then would put his

hands in her pants to fondle her and put his fingers in her vagina. She would often wake

up to Burden in her bed, touching both the outside and inside of her vagina. Sometimes

he was clothed and sometimes not. Each time Burden victimized S.C. he would say the

same thing: "You know I love you and I would never do anything to hurt you, right?"

        {¶8}     S.C. never told her sister, J.A. that Burden was touching her

inappropriately.

        {¶9}     When S.C. was 16, she was questioned by school employees regarding

the alleged incidents. After talking with the school officials, S.C. stated that Burden

called her and asked why she would not lie for him.

        {¶10} On cross-examination, S.C. stated that she was interviewed in 1999 by a

social worker regarding the alleged abuse. She admitted that she never claimed

penetration when she was interviewed in 1999. She admitted telling Detective Coleman

"If I don't win, I will still look like a liar."

        {¶11} B. C., the mother of J. A. and S. C. testified that in 1999 S.C. asked to be

picked up at school, and that she was told about the alleged abuse at that time. B.C.
Stark County, Case No. 2012-CA-00074                                                  4


stated that she listened in on a phone call between her daughter S.C. and Burden in

1999, and that Burden said to S.C. she could have lied for him.

       {¶12} On cross-examination, B.C. stated that she told Detective Coleman that

her first knowledge of the incidents came in 1999.

       {¶13} J.N. the 36-year old niece of Burden, testified that she would visit Burden

at his home when she was a child. At approximately age 15, she was placed at Next

Step, which is a group home. Eventually the staff at the group home permitted J.N. to

visit with Burden and Connie over holidays and weekends.

       {¶14} J.N. spent the night on numerous occasions and had her own bedroom.

Eventually Burden began coming into her bedroom at night, naked. He would get in bed

with her and touch her breasts and outer vaginal area.

       {¶15} In 2010, J.N. disclosed the abuse to Perry Township Police Detective

Mindy Coleman when Coleman contacted J.N. during an investigation of Burden.

       {¶16} B.D. testified as an "other acts" witness. B.D. is Burden's biological

daughter. She lived with Burden and his first wife (also named Connie), who is her

stepmother until she was 11 years old. While she lived there, she shared a room with

her half-sister, A.G.

       {¶17} Burden regularly came to the girls’ room during the night. He would lie in

between them, touch their breasts and genitals and ask if it felt good. He also asked

them to touch his penis. On occasions when Burden was supposed to be disciplining

B.D., he would tell her to pretend to cry while he rubbed her between her legs. He would

do the same thing when he was supposed to be bathing B.D. BD told teachers and

counselors about the abuse, but no one ever believed her reports.
Stark County, Case No. 2012-CA-00074                                                   5


      {¶18} On cross, B.D. stated that she did not recall a trip to the emergency room

in 1979 or a meeting with a counselor in 1981. She also admitted to borrowing money

from Burden as an adult.

      {¶19} Detective Mindy Coleman, of the Perry Township Police Department,

testified that she investigated allegations of abuse by Burden against some individuals,

including J.A. and S.C. This investigation revealed allegations of sexual abuse by

Burden against J.A. and S.C.

      {¶20} On cross-examination, Detective Coleman admitted that she used leading

questions in her interviews with the alleged victims. She also admitted that she informed

the victims that the case would be stronger if more people came forward. Coleman

admitted she never attempted to contact Connie Porter, the investigator from 1999.

      {¶21} Burden called as a witness Connie Porter formerly of the Stark County

Child Protective Services. Porter testified that in 1999 she was involved in an

investigation regarding S.C. Porter stated that during her investigation, S.C. denied any

symptoms of child abuse. Porter stated that her investigation ended, yet no formal

report or document was produced. On cross-examination, Porter stated that her notes

indicated the victim's mother did not want to pursue prosecution in 1999.

      {¶22} Connie Burden, Burden’s wife, testified that she was the aunt of J.A. and

S.C. Connie Burden stated that she never noticed any apprehension by the girls

towards the Burden during their visits.

      {¶23} After the evidence was concluded, the trial court dismissed one count of

rape (Count 3) and one count of gross sexual imposition (Count 7).
Stark County, Case No. 2012-CA-00074                                                    6


       {¶24} After deliberation, the jury returned verdicts of not guilty to the three

counts of rape. However, the jury returned verdicts of guilty to five of the six counts of

gross sexual imposition. Burden was then sentenced to nine (9) years in prison.

                                      Assignments of Error

       {¶25} Burden raises three assignment of error,

       {¶26} “I. THE DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED

WHEN THE TRIAL COURT DENIED DEFENDANT'S MOTION TO DISMISS BASED

ON PRE-INDICTMENT DELAY.

       {¶27} “II. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO

PRESENT IMPERMISSIBLE "OTHER ACTS" EVIDENCE.

       {¶28} “III. THE DEFENDANT'S CONVICTION FOR FIVE COUNTS OF GROSS

SEXUAL IMPOSITION IN VIOLATION OF R.C. 2907.05 WERE AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

                                                   I.

       {¶29} In his first assignment of error, Burden complains his case should have

been dismissed based on pre-indictment delay. He argues he has suffered a due

process violation because two witnesses — Phil Heagerty and Connie Porter — either

had expressed doubt as to the allegations in the past or presently had no independent

recollection of their involvement in the matter.

       {¶30} The Sixth Amendment to the United States Constitution provides “[i]n all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * *

*.” This provision is applicable to state courts through the Fourteenth Amendment.
Stark County, Case No. 2012-CA-00074                                                     7

Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1(1967). The Ohio

Constitution provides similar protection.

       {¶31} As the second syllabus in State v. Luck, 15 Ohio St.3d 150, 153, 472

N.E.2d 1097(1984) states, “[a]n unjustified delay between the commission of an offense

and a defendant's indictment therefore, which results in actual prejudice to the

defendant, is a violation of the right to due process of law under Section 16, Article I of

the Ohio Constitution and the Fifth and Fourteenth Amendment to the United States

Constitution.” Luck, 15 Ohio St.3d at 154, 472 N.E.2d at 1102. See also, United States

v. Lovasco, 431 U.S. 783, 789-790, 97 S.Ct. 2044, 52 L.Ed.2d 752(1977).

       {¶32} Furthermore, any claim of prejudice, such as the death of a key witness,

lost evidence, or faded memories, must be balanced against the other evidence in the

case in order to determine whether the defendant will suffer actual prejudice at trial.

Luck, supra.

       {¶33} When a defendant asserts a pre-indictment delay violating his due

process rights, prejudice may not be presumed. United States v. Crouch, 84 F.3d 1497,

1514-1515(5th Cir. 1996). The notion that prejudice may be presumed from a lengthy

delay arises in the context of the four-part balancing test used in determining whether a

post-indictment or post-accusation delay has deprived a defendant of his Sixth

Amendment right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33

L.Ed.2d 101(1972). The Barker four-part test, and the concept of presumptive prejudice,

applies only to post-indictment or post-accusation delays that implicate the Sixth

Amendment right to a speedy trial, and has no application to pre-indictment delays.

See, State v. Metz, 4th Dist. No. 96 CA 48, 1998 WL 199944(Apr. 21, 1998) (Citation
Stark County, Case No. 2012-CA-00074                                                     8

omitted); State v. Schraishuhn, 5th Dist. No. 2010-CA-00635, 2011-Ohio-3805, ¶31;

State v. Harrell, 5th Dist. No. 98CAA06029, 1999 WL 3887(Dec. 29, 1998).

       {¶34} The Ohio Supreme Court held that a delay in the commencement of

prosecution by the state would be found unjustified when it is done in an attempt to gain

a tactical advantage over the defendant, or when the state “through negligence or error

in judgment, effectively ceases the active investigation of a case, but later decides to

commence prosecution upon the same evidence that was available to it at the time that

its active investigation was ceased.” Luck, 15 Ohio St.3d at 158, 472 N.E.2d 1097. The

Court also held that the length of delay would normally be a key factor in this

determination. Id.

       {¶35} The defendant has the burden of demonstrating prejudice. United States

v. Lawson 780 F.2d 535, 541-542(6th Cir. 1985). A lengthy delay in prosecuting the

defendant, by itself, does not constitute actual prejudice. The defendant must

demonstrate how the length of the delay has prejudiced his ability to have a fair trial.

United States v. Norris, 501 F.Supp.2d 1092, 1096(S.D.Oh.2007). In United States v.

Wright, 343 F.3d 849, 860(6th Cir. 2003), the Court held that loss of memory is

insufficient to establish prejudice as a matter of law.

       {¶36} In the case at bar, Burden claims that the following prejudice has resulted

from the delay in the commencement of the prosecution: (1) memories of witnesses

have undoubtedly faded; (2) unidentified witnesses are not available for trial. Burden

argues that the foregoing factors, when viewed in light of the state's reason for the delay

in prosecution of this case, warrants dismissal of the indictment on due process

grounds.
Stark County, Case No. 2012-CA-00074                                                    9


      {¶37} One potential witness, Phil Heagerty, interviewed some of the kids at the

time of the allegations, and had written a letter expressing his doubt about the

allegations. (T. Feb. 21, 2012 at 16-18). However, after being contacted by Burden's

trial counsel, Heagerty stated that he had no personal recollection of the matter and that

he had no admissible records from the time frame of the allegations. (Id. at 17).

      {¶38} Additionally, Connie Porter testified at the hearing and stated that she had

no independent recollection of the investigation in 1999 and could not explain why the

case had not been prosecuted in 1999. (Id. at 24; 61).

      {¶39} As the court stated in State v. Glasper, 2nd Dist. No. 15740, 1997 WL

71818 (Feb. 2, 1997), “The defendant will not satisfy his or her burden of proof by

merely generally alleging the possible prejudice inherent in any delay, for example, that

memories have faded, witnesses may be inaccessible, and evidence may be lost. The

defendant must identify the specific prejudice suffered, and that prejudice must be

substantial, for instance, that important taped witness inter-views were destroyed or that

key witnesses have died.”

      {¶40} In State v. Flickinger, 4th Dist. No. 98CA09, 1999 WL 34854(Jan. 19,

1999) the court noted,

             A defendant must provide concrete proof that he will suffer actual

      prejudice at trial as a result of the government's delay in indicting the

      defendant. See, e.g., Crouch, 84 F.3d at 1515 (stating that vague

      assertions of faded memories are insufficient to establish actual prejudice;

      the defendant must state which witness is unable to fully recount the

      details of the crime and how the witness' lapsed memory will prejudice the
Stark County, Case No. 2012-CA-00074                                                   10

         defense); United States v. Beszborn (C.A.5, 1994) 21 F.3d 62, 67,

         certiorari denied sub nom, Westmoreland v. United States, 513 U.S. 934,

         115 S.Ct. 330, 130 L.Ed.2d 288 (stating that vague assertions of faded

         memories are insufficient to establish actual prejudice); United States v.

         Stierwalt (C.A.8, 1994), 16 F.3d 282, 285 (stating that assertions of faded

         memories are insufficient to establish actual prejudice when the defendant

         fails to specify how witness' lapsed memory will harm his defense); United

         States v. Harrison (S.D.N.Y.1991), 764 F.Supp. 29, 32 (stating that

         assertion of faded memories is insufficient to establish actual prejudice);

         United States v. Greer (D.Vt.1997), 956 F.Supp. 525, 528 (stating that a

         defendant must present concrete proof of actual prejudice and not mere

         speculation of actual prejudice).

Flickinger, ¶19; Accord, State v. Jenkins, 2009-CA-00150, 2010-Ohio-2719, ¶43.

         {¶41} In the case sub judice, we believe that Burden's assertion that witnesses'

memories have faded are much too speculative and fail to rise to the level of concrete

proof.

         {¶42} We find, therefore, that Burden has failed to establish that the delay in

bringing the indictment caused Burden actual prejudice.

         {¶43} Assuming, arguendo, that Burden had established the existence of actual

prejudice, we believe that the state presented justifiable reasons for the delay that

outweigh any prejudice Burden may have suffered. In the case at bar, nothing in the

record suggests-and Burden does not argue-that the delay that occurred in the

prosecution of this case was motivated by bad faith, harassment, or a governmental
Stark County, Case No. 2012-CA-00074                                                   11

desire to seek a tactical advantage. United States v. Marion, 404 U.S. 307, 324, 92

S.Ct. 455, 30 L.Ed.2d 468. The lapse between the alleged incidents and the actual

indictment was the result of investigative delay and the fact that the victims were minors

whose parents did not wish to pursue the allegations.

       {¶44} For the foregoing reasons, Burden’s first assignment of error is overruled.

                                                 II

       {¶45} In his second assignment of error, Burden argues that the trial court erred

in permitting B.D.to testify as an “other acts” witness.

       {¶46} In the case at bar, B.D. testified as an "other acts" witness. B.D. is

Burden's biological daughter. She lived with Burden and his first wife until she was 11

years old. While she lived there, she shared a room with her half-sister.

       {¶47} Burden regularly came to the girls’ room during the night. He would lie in

between them, touch their breasts and genitals and ask if it felt good. He also asked

them to touch his penis. On occasions when Burden was supposed to be disciplining

B.D., he would tell her to pretend to cry while he rubbed her between her legs. He would

do the same thing when he was supposed to be bathing B.D. BD told teachers and

counselors about the abuse, but no one ever believed her reports.

       {¶48} On cross, B.D. stated that she did not recall a trip to the emergency room

in 1979 or a meeting with a counselor in 1981. She also admitted to borrowing money

from Burden as an adult.

       {¶49} Initially, we note that the decision to admit or exclude relevant evidence is

within the sound discretion of the trial court. State v. Bey, 85 Ohio St.3d 487, 490, 709

N.E.2d 484, 490(1999). The trial court's decision to admit or exclude relevant evidence
Stark County, Case No. 2012-CA-00074                                                      12

cannot be reversed absent an abuse of that discretion. See, e.g., State v. Combs, 62

Ohio St.3d 278, 581 N.E.2d 1071(1991); State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d

343(1987). The term “abuse of discretion” implies more than an error of law or

judgment. Rather, the term suggests that the trial court acted in an unreasonable,

arbitrary, or unconscionable manner. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d

715(1992); State v. Montgomery, 61 Ohio St.3d 410, 575 N.E.2d 167(1991).

Furthermore, when applying the abuse of discretion standard, a reviewing court is not

free to merely substitute its judgment for that of the trial court. In re Jane Doe 1, 57 Ohio

St.3d 135, 566 N.E.2d 1181(1991) (citing Berk v. Matthews, 53 Ohio St.3d 161, 359 N.E

.2d 1301(1990)).

       {¶50} In the case at bar, Burden was convicted of gross sexual imposition under

R.C. 2907.05. The gross sexual imposition statute also contains so-called “rape shield”

provisions,

              (E) Evidence of specific instances of the victim's sexual activity,

       opinion evidence of the victim's sexual activity, and reputation evidence of

       the victim's sexual activity shall not be admitted under this section unless it

       involves evidence of the origin of semen, pregnancy, or disease, or the

       victim's past sexual activity with the offender, and only to the extent that

       the court finds that the evidence is material to a fact at issue in the case

       and that its inflammatory or prejudicial nature does not outweigh its

       probative value.

              Evidence of specific instances of the defendant's sexual activity,

       opinion evidence of the defendant's sexual activity, and reputation
Stark County, Case No. 2012-CA-00074                                                 13


      evidence of the defendant's sexual activity shall not be admitted under this

      section unless it involves evidence of the origin of semen, pregnancy, or

      disease, the defendant's past sexual activity with the victim, or is

      admissible against the defendant under section 2945.59 of the Revised

      Code, and only to the extent that the court finds that the evidence is

      material to a fact at issue in the case and that its inflammatory or

      prejudicial nature does not outweigh its probative value.

              (F) Prior to taking testimony or receiving evidence of any sexual

      activity of the victim or the defendant in a proceeding under this section,

      the court shall resolve the admissibility of the proposed evidence in a

      hearing in chambers, which shall be held at or before preliminary hearing

      and not less than three days before trial, or for good cause shown during

      the trial.

      {¶51} R.C. 2945.59 provides:

              In any criminal case which the defendant's motive or intent, the

      absence of mistake or accident on his part, or the defendant's scheme,

      plan or system in doing an act is material, any acts of the defendant which

      tend to show his motive or intent, the absence of mistake or accident on

      his part, or the defendant's scheme, plan, or system in doing the act in

      question may be proved, whether they are contemporaneous with prior or

      subsequent thereto, notwithstanding such proof may show or tend to show

      the commission of another crime by the defendant.
Stark County, Case No. 2012-CA-00074                                                    14


      {¶52} Pursuant to the rape-shield statute, evidence of specific instances of a

defendant's sexual activity is inadmissible “unless it involves evidence of the origin of

semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and

only to the extent that the court finds that the evidence is material to a fact at issue in

the case and that its inflammatory or prejudicial nature does not outweigh its probative

value.” R.C. 2907.02(D).

      {¶53} The rape-shield statutes were designed to prohibit evidence that is

extremely inflammatory and prejudicial and only marginally probative. State v. Gardner,

59 Ohio St.2d 14, 17, 391 N.E.2d 337(1979).

      {¶54} The admissibility of other acts evidence is carefully limited because of the

substantial danger that the jury will convict the defendant solely because it assumes

that the defendant has a propensity to commit criminal acts, or deserves punishment

regardless of whether he or she committed the crime charged in the indictment. See

State v. Curry, 43 Ohio St.2d 66, 68,330 N.E.2d 720, 723(1975). This danger is

particularly high when the other acts are very similar to the charged offense, or of an

inflammatory nature, as is certainly true in this case. State v. Schaim, 65 Ohio St.3d 51,

60, 1992-Ohio-31, 600 N.E.2d 661,669.

      {¶55} The legislature has recognized the problems raised by the admission of

other acts evidence in prosecutions for sexual offenses, and has carefully limited the

circumstances in which evidence of the defendant's other sexual activity is admissible.

The rape statute and the gross sexual imposition statute both contain subsections that

address the admissibility of evidence of other sexual activity by either the victim or the

defendant. Schaim, 60 Ohio St.3d at 60, 600 N.E.2d 661. (Footnotes omitted). Because
Stark County, Case No. 2012-CA-00074                                                    15


of the severe social stigma attached to crimes of sexual assault and child molestation,

evidence of these past acts poses a higher risk, overall, of influencing the jury to punish

the defendant for the similar act rather than the charged act. Accordingly, the state may

not “parade past the jury a litany of potentially prejudicial similar acts that have been

established or connected to the defendant only by unsubstantiated innuendo.”

Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771(1988).

       {¶56} The Ohio Supreme Court has recently directed courts to conduct a three-

step test to consider whether other-act evidence is admissible. State v. Williams, 2012-

Ohio-5695, ––– N.E. 2d ––––(Dec. 6, 2012), ¶ 19. “The first step is to consider whether

the other acts evidence is relevant to making any fact that is of consequence to the

determination of the action more or less probable than it would be without the

evidence.” Id. at ¶ 20 (citing Evid. R. 401). The second step is to “consider whether

evidence of the other crimes, wrongs, or acts is presented to prove the character of the

accused in order to show activity in conformity therewith or whether [it] is presented for

a legitimate purpose, such as those stated in Evid.R. 404(B). Id. “The third step is to

consider whether the probative value of the other acts evidence is substantially

outweighed by the danger of unfair prejudice.” Id. (citing Evid. R. 403).

       {¶57} In Williams, the defendant was accused of engaging in sexual relations

with a fourteen-year-old boy he had mentored through his church. The Supreme Court

held that evidence that the defendant had had a similar relationship with a different

teenage boy he had coached on a swimming team twelve years earlier was admissible

under Evidence Rule 404(B) “to show the plan of the accused and the intent for sexual

gratification.” Id. at ¶ 25. In Williams, the evidence indicated that the defendant had
Stark County, Case No. 2012-CA-00074                                                            16


targeted young, fatherless males “to gain their trust and confidence and groom them for

sexual activity with the intent of sexual gratification.” Id. Mr. Williams befriended the

victim, often bought him gifts, and paid him to do odd jobs at Mr. Williams’ house. The

other-act evidence showed that Mr. Williams had “exhibited a pattern of isolating certain

types of victims and then abused a position of authority to engage in grooming

behaviors for the purpose of sexual gratification....” Id. at ¶ 11. Furthermore, part of Mr.

Williams’ defense was to claim that he was only sexually attracted to women. The

Supreme Court overruled the Eighth District's en banc decision and held that the other-

act evidence was admissible. Id. at ¶ 25. The Court held the other-act evidence tended

to prove that Mr. Williams derived sexual gratification from engaging in sexual relations

with teenage boys and that he had a certain plan or method of targeting a certain group

of victims by gaining their trust through the role of an authority figure before abusing

them. Id.1

       {¶58} Evidence of other acts is admissible if (1) there is substantial proof that the

alleged other acts were committed by the defendant, and (2) the evidence tends to

prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. State v. Carter, 26 Ohio St.2d 79, 83, 269 N.E.2d 115, 117(1971);

State v. Lowe, 69 Ohio St.3d 527, 530, 1994-Ohio-345, 634 N.E.2d 616, 619. (Citing

State v. Broom, 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 690-691(1988); Evid.R.

404(B); R.C. 2945.59). The Ohio Revised Code does not define “substantial proof.”

       {¶59} In State v. Wright, 4th Dist. No. 00 CA 39, 2001-Ohio-2473, the defendant

asserted that substantial proof did not exist that he committed the other act because the


       1
         Interestingly, the Court in Williams made no mention of the rape shield provisions of R.C.
2907.05(E).
Stark County, Case No. 2012-CA-00074                                                     17


uncorroborated testimony of sexual abuse by the other acts witness was the only

evidence that the defendant committed the other act. The court determined that that the

substantial proof requirement does not necessitate that independent evidence

corroborate other acts testimony. Instead, the court found that the substantial proof

requirement is satisfied if at least one witness who has direct knowledge of the other act

can testify to the other act. The jury may then fulfill its duty and evaluate the witness's

testimony and credibility.

        {¶60} In State v. Henderson, 76 Ohio App.3d 290, 601 N.E.2d 596(1991), the

court reached a contrary conclusion. In Henderson, the court determined that a victim's

unsubstantiated and uncorroborated allegations of sexual abuse did not fulfill the

substantial proof requirement. In Henderson, the defendant was convicted of gross

sexual imposition with a specification that he purposely compelled the victim to submit

by force or threat of force. To establish the element of force, the victim testified about a

past episode of the defendant's sexual misconduct, which occurred seven or eight years

prior to the trial.

        {¶61} On appeal, the court held that the trial court should have excluded the

other acts evidence. In addition to finding that the other acts occurred too remote in

time, the court noted that uncorroborated and unsubstantiated evidence of this nature is

fraught with danger and falls far short of substantial proof that appellant committed the

prior act. Henderson, 76 Ohio App.3d at 295, 601 N.E.2d at 599-600.

        {¶62} The Ohio Supreme Court initially agreed to resolve this conflict. State v.

Wright, 94 Ohio St.3d 1504, 764 N.E.2d 1035(2002); however the Court later dismissed
Stark County, Case No. 2012-CA-00074                                                                 18

the conflict without a decision as having been improvidently allowed. State v. Wright, 98

Ohio St.3d 1212, 785 N.E.2d 775(2003).

       {¶63} In the case at bar, B.D. was unable to give any specific date that claimed

her father abused her. The only time period B.D. was able to relate was generally

between the time she was seven and eleven years old. That would be eight to twelve

years prior to the earliest of the dates alleged in Burden’s indictment.2 She claimed that

she reported the abuse to “teachers and counselors” B.D. did not remember denying

the allegations in 1979; did not remember going to the hospital in 1979 and did not

remember speaking to a counselor at the Crisis Center.

       {¶64} The other acts evidence in the case at bar does not form part of the

immediate background of the crime charged. The other acts admitted during Burden's

case occurred at least eight years before the acts alleged in the indictment. Thus, the

other acts are not inextricably related to the crime charged, and are chronologically and

factually separate occurrences. We note the Ohio Supreme Court has limited its holding

in Curry and has explained that, under Evidence Rule 404(B), “evidence of other

crimes, wrongs, or acts of an accused may be admissible to prove intent or plan, even if

the identity of an accused or the immediate background of a crime is not at issue.” State

v. Williams, 2012-Ohio-5695, ––– N.E.2d ––––, ¶ 2. However, we believe that

temporarily proximity has a direct bearing on the relevancy and the potentially

prejudicial nature of the evidence in a defendant’s case.

       {¶65} We would additionally note that the quality of the evidence concerning the

allegations made by B.D. is lacking. As we have previously noted, in order for evidence

       2
         Count 4 of the indictment puts the dates at July 25, 1988 to July 25, 1995; Count 8 of the
indictment set the dates at July 25, 1988 to July 24, 1993. The other counts place the beginning date in
1990 or 1993.
Stark County, Case No. 2012-CA-00074                                                     19


of a prior act to be admissible, there must be substantial evidence that the accused

committed the act. State v. Carter, 26 Ohio St.2d 79, 269 N.E.2d 115(1971). In the case

sub judice, B.D. recanted the allegations at the time. Moreover, no other witness

testified at the trial about the prior incident or that B.D. had reported the allegations at

the time. Further, no specific dates of the alleged incidents were provided by B.D.

Uncorroborated and unsubstantiated evidence of this nature is fraught with danger and

falls far short of substantial proof that Burden committed the prior act. As a result, the

use of questionable evidence about Burden's past sexual misconduct to prove an

element of an unrelated charge was not permissible. Burden was left with absolutely no

means of answering these allegations. State v. Henderson, 76 Ohio App.3d 290, 601

N.E.2d 596(1991); State v. Strober, 51 Ohio App.3d 31, 554 N.E.2d 916(1988); State v.

Miley, 5th Dist. Nos. 2005 CA 67, 2006 CA 14, 2006-Ohio-4670, ¶75. Thus, the

question we must address now is whether the admission of the other acts testimony

was harmless.

       {¶66} In making a Crim.R. 52(A) harmless error analysis, any error will be

deemed harmless if it did not affect the accused's “substantial rights.” Otherwise stated,

the accused has a constitutional guarantee to a trial free from prejudicial error, not

necessarily one free of all error. Before constitutional error can be considered harmless,

we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Where

there is no reasonable possibility that unlawful testimony contributed to a conviction, the

error is harmless and therefore will not be grounds for reversal. State v. Lytle (1976), 48

Ohio St.2d 391,495, 358 N.E.2d 623, paragraph three of the syllabus, vacated on other
Stark County, Case No. 2012-CA-00074                                                   20

grounds in (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154. There must be other

overwhelming evidence of guilt or some other indicia that the error did not contribute to

the conviction. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23

L.Ed.2d 284(1969); State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d 265(1983), n.

5.

       {¶67} In the case at bar, the jury was given a limiting instruction. “A presumption

always exists that the jury has followed the instructions given to it by the trial court,”

Pang v. Minch, 53 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, approving and

following State v. Fox, 133 Ohio St. 154, 12 N.E.2d 413(1938); Browning v. State, 120

Ohio St. 62, 165 N.E. 566(1929). Further, the jury found Burden not guilty of the three

most serious charges.

       {¶68} Even though the admission of the prior acts was erroneous, we would

conclude, from a review of the entire record, that such error would be “harmless beyond

a reasonable doubt.” Chapman v. California; Harrington v. California, 395 U.S. 250, 89

S .Ct. 1726, 23 L.Ed.2d 284(1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056,

31 L.Ed.2d 340(1972); State v. Lindsay, 5th Dist. No. 2010-CA-0134, 2011-Ohio-4747,

¶75.

             {¶69} Burden’s second assignment of error is overruled.


                                               III.

       {¶70} In his third assignment of error, Burden contends that his convictions are

against the manifest weight and sufficiency of the evidence. Specifically, he argues the
Stark County, Case No. 2012-CA-00074                                                    21


witnesses were not credible, too much time had elapsed before prosecution and the

state produced no physical evidence.

      {¶71} Burden was convicted of five counts of gross sexual imposition involving

three girls, pursuant to R.C. 2907.05.

      {¶72} The indictment in the case at bar charged Burden with a violation of R.C.

2907.05(A)(1) and/or (A)(4), which states,

             (A) No person shall have sexual contact with another, not the spouse

      of the offender; cause another, not the spouse of the offender, to have

      sexual contact with the offender; or cause two or more other persons to

      have sexual contact when any of the following applies:

             (1) The offender purposely compels the other person, or one of the

      other persons, to submit by force or threat of force.

                                              ***

             (4) The other person, or one of the other persons, is less than

      thirteen years of age, whether or not the offender knows the age of that

      person.

      R.C. 2907.01(B) defines “sexual conduct” as,

             (B) “Sexual contact” means any touching of an erogenous zone of

      another, including without limitation the thigh, genitals, buttock, pubic

      region, or, if the person is a female, a breast, for the purpose of sexually

      arousing or gratifying either person.

      {¶73} Counts five and six involve S.C. There is no dispute that she was under 13

years of age at the time of the occurrences. S.C. testifed that she recalled Burden sitting
Stark County, Case No. 2012-CA-00074                                                22


on the couch with her, first rubbing her back and then putting his hand inside her

underwear and fondling her vaginal area. He also masturbated in front of her. She

further recalled waking up numerous times to Burden naked in her bed and rubbing her

genitals. She would stay as quiet as she could until it was over, because she was

scared.

      {¶74} Counts eight and nine concerned J.A., Burden was convicted of one count

of having sexual contact with J.A. when she was less than 13 years of age and one

count of having sexual contact with J.A. by purposely compelling her to submit by force

or threat of force. J.A. testified that the touching began when she was seven or eight

and continued until she was about 16. She testified she would wake up at night

screaming "no" because Burden was touching her while she slept in his bed. He also

touched her vaginal area when they were both seated on the sofa. Burden was in

charge when J.A. visited and he made J.A. nervous and afraid.

      {¶75} Finally, Burden was convicted of having sexual contact with J.N., between

1990 and 1993, by purposely compelling her to submit by force or threat of force.

      {¶76} J.N. testified she was born in 1975 and went to stay in the group home

where Burden found her when she was 15 years old. When she began spending time in

Burden's home, Burden began creeping into her room at night, naked, getting in bed

with her and trying to kiss her while touching her breasts and putting his hands inside

her pajama bottoms and rubbing her vaginal area. J.N. would move her head to prevent

Burden from kissing her. J.N. felt her only two choices were staying in the group home

or putting up with Burden's behavior.
Stark County, Case No. 2012-CA-00074                                                          23


       {¶77} In the case at bar, the trial court dismissed one count of rape (Count 3)

and one count of gross sexual imposition (Count 7). The jury found Burden not guilty of

three counts of rape.

       {¶78} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found the essential elements of the

crimes of gross sexual imposition We hold, therefore, that the state met its burden of

production regarding each element of the crimes of gross sexual imposition and,

accordingly, there was sufficient evidence to support Burden’s convictions.

       {¶79} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008–Ohio–6635, ¶ 31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004–Ohio–3395, 813 N.E.2d 964, ¶

81. In other words, “[w]hen there exist two fairly reasonable views of the evidence or

two conflicting versions of events, neither of which is unbelievable, it is not our province

to choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002–Ohio–

1152, at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.

The weight to be given to the evidence and the credibility of the witnesses are issues for

the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph

one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011–Ohio–6524, 960 N.E.2d

955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed.

680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646

(1983).
Stark County, Case No. 2012-CA-00074                                                  24


      {¶80} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witness’s credibility. "While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence." State v. Craig, 10th Dist. 99AP-739, 2000 WL 297252(Mar 23, 2000) citing

State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).

Indeed, the jurors need not believe all of a witness' testimony, but may accept only

portions of it as true. State v. Raver, 10th Dist. No. 02AP-604, 2003- Ohio-958, 2003

WL 723225, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548(1964);

State v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, 2003 WL 21291042, citing

State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096( 4th Dist. 1992). Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), superseded by State constitutional amendment on other grounds as stated

in State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668(1997).

      {¶81} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that appellant was guilty of the crimes

charged in the indictment. The jury heard the witnesses, evaluated the evidence, and

was convinced of Burden's guilt.

      {¶82} Burden’s third assignment of error is overruled.
Stark County, Case No. 2012-CA-00074                                         25


      {¶83} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas is affirmed.

By Gwin, P.J.

Farmer, J., and

Delaney, J., concur




                                        _________________________________
                                        HON. W. SCOTT GWIN


                                        _________________________________
                                        HON. SHEILA G. FARMER


                                        _________________________________
                                        HON. PATRICIA A. DELANEY




WSG:clw 0322
[Cite as State v. Burden, 2013-Ohio-1628.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
BERT S. BURDEN                                   :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2012-CA-00074




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas is affirmed. Costs to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. SHEILA G. FARMER


                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY
