[Cite as State v. Bowers, 2016-Ohio-904.]



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



STATE OF OHIO,                              :     APPEAL NO. C-150024
                                                  TRIAL NO. B-1305688
         Plaintiff-Appellee,                :

   vs.                                      :
                                                      O P I N I O N.
                                            :
ADAM BOWERS,

         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: March 9, 2016



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

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.




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


FISCHER, Presiding Judge.


       {¶1}   Defendant-appellant Adam Bowers appeals his convictions for rape

and gross sexual imposition of a kindergarten-age girl, L.D. Because we determine

that the trial court erred only in sentencing Bowers, we sustain his sixth assignment

of error and remand the matter for resentencing. We find no merit in his remaining

assignments of error, however, so we affirm the remainder of the trial court’s

judgment.

                    Background Facts and Procedural History

       {¶2}   During the late summer of 2013, then-eight-year-old L.D. stayed with

her grandmother, Debbie, and Debbie’s husband, Mike, every other weekend at their

home in Newtown, Ohio, as she had done for years prior. Mike’s son, Bowers, and

Bowers’s then-wife, Amber, also lived with Debbie. L.D. reported to Amber that

Bowers had tried to initiate a sexual encounter with her at a Kroger grocery store.

L.D.’s report to Amber started an investigation by the Newtown police department,

and the police referred L.D. to the Mayerson Center for Safe and Healthy Children at

Cincinnati Children’s Hospital for an interview with a social worker.

       {¶3}   The social worker conducted a recorded interview with L.D. at the

Mayerson Center to assess L.D.’s safety. In the interview, L.D. initially denied that

anyone had touched her inappropriately, but L.D. then began disclosing that Bowers

had sexually molested her multiple times when she was five and six years old. L.D.

described in detail an occasion where Bowers had been sitting in a chair with his

pants down and had forced L.D.’s hand to touch his penis. L.D. tried to let go, but he

made her hand move up and down until “gooey stuff” came out of his penis.




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       {¶4}    According to L.D., Bowers also forced her to watch pornography where

a man and a woman were having sex, and he showed her videos of himself and his

wife masturbating. Bowers also showed L.D. a picture of his erect penis to show her

“how big” it could get. Bowers threatened to spank or discipline L.D. if she did not

comply with his sexual demands, and he offered her candy if she would touch or lick

his penis.

       {¶5}    L.D. also described an incident where Bowers forced her head down

onto his penis and put his penis in her mouth, causing her to gag and choke. The

“gooey stuff” went into her mouth, and she had to wash it out. L.D. also described an

incident in the shower where Bowers put his penis inside her vagina, which hurt her.

L.D. stated that this happened more than once.

       {¶6}    After L.D.’s Mayerson Center interview, Bowers met voluntarily with a

Newtown police detective to discuss L.D.’s accusations. Bowers’s interview was also

recorded.     Bowers denied any sexual contact with L.D. whatsoever, but as the

interview progressed and the officer revealed some of the graphic details L.D. had

provided to the social worker, Bowers began to relent. At first, Bowers indicated that

L.D. had seen him watching pornography, and, on one occasion, he had been

masturbating and L.D. had come up and touched his penis. Eventually, Bowers

admitted that L.D. had held his penis and been forced to masturbate him, as well as

perform oral sex on him. He also admitted that his penis tip went inside her vagina

after L.D. had asked him about sex.

       {¶7}    As a result of Bowers’s confession and L.D.’s statement, Bowers was

placed under arrest for rape. Bowers was indicted on September 24, 2013, for two

counts of rape of a child under R.C. 2907.02(A)(1)(b), and gross sexual imposition.


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The two rape counts in the indictment specified that L.D. had been under the age of

ten at the time of the offenses. The matter proceeded to a jury trial.

       {¶8}   At trial, the state presented the testimony of L.D. via Skype. L.D.

described, in her nine-year-old vocabulary, how Bowers had made her perform oral

sex and masturbate him, and had put his penis inside her.

       {¶9}   The state then presented the testimony of Bowers’s ex-wife, Amber.

Amber testified that she had not really spoken to Bowers since the day of his arrest,

when Amber had asked him on the phone if the allegations of sexual abuse were true,

and he had responded affirmatively. The main purpose of Amber’s testimony was to

introduce a series of letters Bowers had sent to Amber from prison. In one of the

letters, Bowers stated, “I’m not necessarily blaming my dad for my actions cuz I

could have NOT done it. Could have got away from Temptation, but I let it get the

best of me. Because, of what I have seen, it was placed into my brain and did a dumb

move. [E]ver since I have been with you, nothing has happened.”

       {¶10} In the letters, Bowers denied oral and vaginal penetration with L.D.,

but he admitted to the “porn and masturbating part.” Bowers stated that he liked

“coming clean” to himself and to Amber, and that he trusted her not to show the

letters to anyone else. Bowers also commented on what he thought of his possible

punishment for the charged offenses:

              I have a good judge and being first time in trouble with

              the law, I might get lucky. Either of the two things will

              happen. The two F1s will get dropped and get charged

              with just the GSI and go home and have to take sex

              classes and be on probation for 5 to 6 years and register


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               for a while. Or fight hard and get all charges dropped. I

               bet they will wanna stick me with at least the GSI

               though.

        {¶11} Later on in the same letter, Bowers stated,

               There’s a guy in here, He had the same charge but more

               charges and a record. Anyways he got sentenced for 37

               years. He had 8 charges, dropped all but 3. Charged

               him for two F1s and an F2. He got accused for raping

               his own 4 year old daughter. Now he had a minor record

               for the same thing…rape. That’s why I wanted to trust

               you first. Cuz I don’t want that to happen to me.

        {¶12} In addition to Amber’s and L.D.’s testimony, the state also presented

the testimony of the social worker who had interviewed L.D. at the Mayerson Center,

and the Newtown police detective who had interviewed Bowers. The social worker

testified that her main concern when conducting L.D.’s interview was to determine

L.D.’s safety, which included medical and psychological safety. The social worker

also testified that a doctor examined L.D. after the interview.       L.D.’s recorded

interview with the social worker was played in its entirety for the jury. The Newtown

police officer introduced Bowers’s recorded confession, which also was played for the

jury.

        {¶13} Bowers testified in his own defense. He claimed that L.D. had touched

his penis, but only once. When asked for more details as to this event on cross-

examination, Bowers could not give any kind of timeframe, and he stated, “[s]he just

came in contact with it and that was it.” The prosecutor questioned Bowers: “You


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don’t remember the details of how a little girl touched your penis?”                Bowers

responded, “No, I don’t.”

       {¶14} As to the letters he had written Amber from prison, Bowers testified

that he had confessed to Amber because of her hostility towards him since his arrest,

and that he wanted her back. When asked about why he had confessed in the

interview with the Newtown police detective to raping L.D., Bowers testified that the

detective had “talked him into” claiming that he had committed the offenses, and

that Bowers had lied to the detective in the interview. The prosecutor asked Bowers:

“You were just able to come up with a story about raping a five-year-old girl

spontaneously?” Bowers responded, “I wouldn’t say that I came up with a story

saying that I raped somebody, but I would say everybody lies. I’ve lied before. I

mean, anybody can just make up a simple lie.”              When asked again on cross-

examination why he felt pressured to admit to the sexual contact after initially

denying it, Bowers responded that the detective had offered to help him, “so,

obviously, I felt that I was going home at the end of this, and that’s all there is to it.”

       {¶15} The jury found Bowers guilty of rape involving oral sex and guilty of

gross sexual imposition, but not guilty of vaginal rape. The trial court imposed a

prison term of 25 years to life for the rape count and 36 months for the gross-sexual-

imposition count, to run concurrently with the rape count. Bowers now appeals his

convictions.

                                      Spousal Privilege

       {¶16} In Bowers’s first assignment of error, he argues that the trial court

erred by permitting Amber to divulge privileged spousal communications to the jury.

Bowers complains that the trial court should not have allowed Amber to read from


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letters Bowers had written her from jail. We note that Bowers failed to object to the

testimony on this basis in the trial court, so we review for plain error. State v. Lewis,

1st Dist. Hamilton Nos. C-050989 and C-060010, 2007-Ohio-1485, ¶ 39.

       {¶17} In a criminal trial, R.C. 2945.42 provides an accused the right to

exclude testimony regarding privileged spousal communications, also known as the

spousal privilege. Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552, 963

N.E.2d 1270, ¶ 20.      The right to invoke the spousal privilege belongs to the

nontestifying spouse. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920

N.E.2d 104, ¶ 112. The statute provides that a “[h]usband or wife shall not testify

concerning a communication made by one to the other, * * * during coverture, unless

the communication was made * * * in the known presence or hearing of a third

person competent to be a witness * * *.” The statute further provides that the

privilege exists even “if the marital relation has ceased to exist.” R.C. 2945.42.

       {¶18} “Coverture” has been defined as “the condition or state of a married

person, whether man or woman.” Bentleyville v. Pisani, 100 Ohio App.3d 515, 517,

654 N.E.2d 394 (8th Dist.1995). Courts have found that “coverture” requires not

only that the communication between the spouses have been made during the

marriage, but also while the spouses were living together, because “ ‘[w]here

evidence shows that incidents of coverture have been relinquished, no legitimate

purpose would be served by the exclusion of spousal testimony.’ ” State v. Nowlin,

5th Dist. Muskingum No. CT2012-0015, 2012-Ohio-4923, ¶ 45, quoting Bentleyville;

see State v. Reed, 2014-Ohio-5463, 25 N.E.3d 480, ¶ 57 (11th Dist.).

       {¶19} The letters from Bowers to Amber were sent after Bowers had gone to

prison, and some were sent even after Bowers and Amber had divorced—although


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the record is not clear which letters were sent when. The record is clear, however,

that Amber sought to cut Bowers out of her life after the allegations against L.D.

surfaced. Amber refused to talk to Bowers after his arrest, and she would not take

his phone calls. In one of the letters, Bowers acknowledged Amber’s silence, stating,

“so I heard you never wanna speak to me again?” Bowers’s own testimony at trial

reflected that Amber had been hostile toward him after his arrest, and that he

wanted to win her back in the letters. Because Amber ceased her communication

with Bowers after his arrest in an effort to distance herself from him permanently,

and then sought a divorce, “coverture” had been relinquished.       As a result, the

jailhouse letters from Bowers to Amber were not privileged spousal communications,

and we overrule Bowers’s first assignment of error.

                 The Medical-Diagnosis or Treatment Exception

       {¶20} In his second assignment of error, Bowers argues that the trial court

erred by allowing the state to introduce hearsay statements made by L.D. through

her Mayerson Center interview.

       {¶21} Evid.R. 803(4) provides an exception to the hearsay rule for

“[s]tatements made for the purposes of medical diagnosis or treatment and

describing medical history, or past or present symptoms, pain, or sensations, or the

inception or general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.” This court has held that statements

made by a child victim to a social worker at Cincinnati Children’s Hospital were

admissible under Evid.R. 803(4). See State v. Lukacs, 188 Ohio App.3d 597, 605,

2010-Ohio-2364, 936 N.E.2d 506 (1st Dist.); State v. Woodruff, 1st Dist. Hamilton

Nos. C-140256 and C-140257, 2015-Ohio-2422, ¶ 20-21.


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       {¶22} In determining whether a child’s statements were made for the

purpose of medical diagnosis or treatment, the Lukacs court noted that the inquiry

“depends upon the facts of the particular case” and the factors to be examined

include (1) the nature of the questioning—whether the interviewer asked leading or

suggestive questions; (2) whether the child had a reason to lie; (3) whether the child

understood the need to tell the truth; (4) the age of the child at the time the

statements were made; and (5) whether the child’s statements were consistent. Id.

       {¶23} In L.D.’s case, the social worker at Children’s Hospital testified that the

main purpose in conducting L.D.’s interview, as with any abuse-related interview, is

to assess safety, both in a physical and psychological sense. The social worker asked

L.D. open-ended questions, or questions designed to give L.D. a choice between two

opposing answers. No leading or suggestive questioning occurred. Especially after

L.D. revealed allegations of vaginal rape in the shower, the questions asked by the

social worker were clearly asked to assess her medical safety, and L.D. underwent a

physical examination after the interview. By the time of the interview, L.D. was eight

years old, and she indicated to the social worker that she knew the difference

between the truth and a lie. L.D. had no motive to lie about the sexual abuse from

Bowers.   In terms of consistency of L.D.’s statements, L.D. initially denied that

inappropriate touching had occurred; however, L.D. quickly opened up to the social

worker upon further questioning, and L.D.’s statements regarding the sexual abuse

remained consistent over the next hour-plus interview.

       {¶24} We determine that no error occurred in admitting L.D.’s Mayerson

Center interview, because those statements were admissible under Evid.R. 803(4).

We overrule Bowers’s second assignment of error.


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                   Prosecutor’s Remarks During Closing

       {¶25} In his third assignment of error, Bowers argues that the trial court

erred by permitting the prosecutor to comment on Bowers’s state of mind with

respect to his possible punishment for the crimes at issue. Bowers takes specific

exception to the prosecutor’s remarks that Bowers wanted to “unconfess” to the

crimes, after learning the legal significance between rape and gross sexual

imposition, and that Bowers remembered the details of the crimes—despite his

testimony to the contrary—but that Bowers was being manipulative.

       {¶26} The law affords a prosecutor a degree of latitude in closing argument

when commenting on what the evidence has shown. State v. Murrell, 1st Dist.

Hamilton No. C-020333, 2003-Ohio-2068, ¶ 23; State v. Lott, 51 Ohio St.3d 160,

165, 555 N.E.2d 293 (1990). In determining whether prosecutorial misconduct has

occurred, the first question is whether the remarks were improper, and, even if they

were, the remarks must have “prejudicially affected substantial rights of the

accused.” Lott at 165. Thus, the alleged improper remarks must have deprived the

accused of a fair trial in order for an appellate court to reverse a conviction for

prosecutorial misconduct. See State v. Fears, 86 Ohio St.3d 329, 332, 715 N.E.2d

136 (1999).

       {¶27} In this case, the prosecutor’s comments that Bowers wanted to

“unconfess” to the rape charge, that Bowers remembered the details of the crime,

and that he was manipulative, were a fair commentary on Bowers’s credibility given

the evidence presented at trial. See State v. Tapke, 1st Dist. Hamilton No. C-060494,

2007-Ohio-5124, ¶ 81. Bowers confessed to the Newtown police detective that he

forced L.D. to perform oral sex on him, but, once in prison, Bowers told his ex-wife in


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a letter that only the “masturbation” occurred. Bowers also told his ex-wife that if he

were convicted of only the gross-sexual-imposition count, and not rape, he would

only receive probation. A logical inference can be made from this evidence that

Bowers thought better of admitting to the crimes once in prison, and after he had

time to reflect on his possible punishment.

       {¶28} Bowers also argues that the prosecutor improperly remarked about the

difference in punishment between rape and gross sexual imposition, as reflected in

Bowers’s letters to Amber. In closing, the prosecutor began to re-read the following

passage from Bowers’s letter: “There’s a guy in here, He had the same charge but

more charges and a record. Anyways he got sentenced for 37 years. He had 8

charges, dropped all but 3. Charged him for two F1s and an F2. He got accused for

raping his own 4 year old daughter.” Bowers’s counsel objected, and the trial court

issued a cautionary instruction to the jury, informing them that punishment is not a

factor in determining guilt or innocence. Given the trial court’s instruction, we see

no error. See State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995) (a jury is

presumed to follow a curative instruction).

       {¶29} Furthermore, considering the totality of the evidence admitted against

Bowers by the state at trial, we cannot say that, but for the allegedly improper

remarks by the prosecutor, the outcome of the trial clearly would have been

otherwise. See Fears, 86 Ohio St.3d 329 at 332, 715 N.E.2d 136. Therefore, Bowers

has not shown that the prosecutor’s remarks in closing prejudiced him. We overrule

Bowers’s third assignment of error.




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                           Ineffective Assistance of Counsel

       {¶30} In his fourth assignment of error, Bowers argues that he received

ineffective assistance of counsel, because his counsel failed to object to: (1) Amber’s

testimony under the spousal privilege, (2) the introduction of L.D.’s Mayerson Center

interview, and (3) the prosecutor’s allegedly inappropriate statements during closing

argument.

       {¶31} Ineffective assistance of counsel requires a showing that counsel’s

performance fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result of counsel’s deficient performance. State v.

Combs, 1st Dist. Hamilton No. C-120756, 2013-Ohio-3159, ¶ 24; Strickland v.

Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).               An

appellate court will not second guess trial-strategy decisions made by counsel. See

State v. Adams, 103 Ohio St.3d 508, 514, 2004-Ohio-5845, 817 N.E.2d 29.

       {¶32} As we have determined, no error occurred with respect to the

admission of Amber’s testimony, because the spousal privilege did not exist at the

time Bowers wrote her letters from jail. Moreover, no error occurred with respect to

the introduction of L.D.’s Mayerson Center interview either, because it was

admissible under Evid.R. 803(4). Finally, no error occurred with respect to the

prosecutor’s remarks in closing argument. Therefore, even if Bowers’s counsel had

objected, his objections would have been unsuccessful, and his decision not to object

can be seen as trial strategy.

       {¶33} We overrule Bowers’s fourth assignment of error.




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                      Weight and Sufficiency of the Evidence

       {¶34} In his fifth assignment of error, Bowers argues that his convictions for

rape and gross sexual imposition were supported by insufficient evidence, and were

against the manifest weight of the evidence. We disagree.

       {¶35} Given the level of detail in L.D’s Mayerson Center interview describing

the crimes, Amber’s testimony as to the letters she received from Bowers, where he

admitted to the gross-sexual-imposition charge, L.D.’s trial testimony reiterating that

she had been abused by Bowers, and Bowers’s confession, more than sufficient

evidence existed to support his convictions. See State v. Jenks, 61 Ohio St.3d 259,

612 N.E.2d 492 (1991). As to manifest weight of the evidence, the jury was entitled to

give little weight to Bowers’s self-serving trial testimony in which Bowers claimed

that he had lied to the Newtown police detective when he had confessed to oral sex

with L.D.—especially where the pretrial letters Bowers sent to Amber from prison

indicated that Bowers believed he would only receive probation for a gross-sexual-

imposition conviction. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997).

       {¶36} Therefore, we overrule Bowers’s fifth assignment of error.

                                        Sentencing

       {¶37} In his sixth assignment of error, Bowers argues that the trial court

improperly sentenced him on the rape offense as charged in Count 2 of the

indictment to an indefinite prison term of 25 years to life in prison. We agree.

       {¶38} Count 2 of the indictment charged rape of a child under R.C.

2907.02(A)(1)(b), and included specific language that the victim had been under the

age of ten. Moreover, the verdict form signed by the jury as to Count 2 included the


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express finding by the jury that L.D. had been under the age of ten at the time of the

offense.     R.C. 2907.02(B) provides that “[n]otwithstanding sections 2929.11 to

2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall

be sentenced to a prison term or term of life imprisonment pursuant to section

2971.03 of the Revised Code.” The statute also provides “[i]f the victim under

division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the

offender to a prison term or term of life imprisonment pursuant to section 2971.03 of

the Revised Code, the court may impose upon the offender a term of life without

parole.” R.C. 2907.02(B).

       {¶39} At the sentencing hearing, the trial court stated on the record as

follows: “On the rape, Count 2, I’m imposing 25 years to life, pursuant to

2971.03(A)(c)(i).”    When the defendant questioned his sentence, the trial court

responded, “Mr. Bowers, the Court has no discretion on that sentence.” It appears

clear from the record that the trial court applied R.C. 2971.03(A). The specific

subsection of R.C. 2971.03(A) that addresses a prison sentence of 25 years to life is

(3)(d)(i).

       {¶40} R.C. 2971.03(A)(3)(d)(i) provides that

                if the offense for which the sentence is being imposed is

                rape for which a term of life imprisonment is not

                imposed under division (A)(2) of this section or division

                (B) of section 2907.02 of the Revised Code, it shall

                impose an indefinite prison term as follows: [I]f the rape

                is committed on or after January 2, 2007, in violation of

                division (A)(1)(b) of section 2907.02 of the Revised


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               Code, it shall impose an indefinite prison term

               consisting of a minimum term of twenty-five years and a

               maximum term of life imprisonment.

       {¶41} R.C. 2971.03(A) by its terms applies only to a person who was

convicted of or pleaded guilty to a sexually-violent-predator specification that was

included in the indictment. See State v. Tschudy, 9th Dist. Summit No. 24053,

2008-Ohio-473, ¶ 6.         The state did not include a sexually-violent-predator

specification in Bowers’s indictment, thus, the trial court erred in applying R.C.

2971.03(A) to Bowers. See State v. McMullen, 9th Dist. Summit No. 26850, 2015-

Ohio-1631 (where the appellate court determined that the trial court erred in

applying R.C. 2971.03(A)(3)(d)(i) to a defendant when that defendant had not

pleaded guilty to or been convicted of being a sexually-violent predator).

       {¶42} In sum, the trial court was under the mistaken impression that it had

no discretion in sentencing Bowers, and the trial court erred in applying R.C.

2971.03(A). As a result, we sustain Bowers’s sixth assignment of error. On remand,

the trial court must resentence Bowers in accordance with R.C. 2907.02(B).

                                        Conclusion

       {¶43} In conclusion, we reverse the sentence imposed on the rape count and

remand the matter to the trial court to resentence Bowers on the rape offense in

Count 2 in accordance with R.C. 2907.02(B) and the law. The trial court’s judgment

is affirmed in all other respects.

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


HENDON and CUNNINGHAM, JJ., concur.


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




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