[Cite as State v. Baker, 2011-Ohio-1820.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :       C.A. CASE NO.     23933

v.                                                     :       T.C. NO.   09CR1985

ROBERT LEE BAKER                                       :        (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                            ..........

                                            OPINION

                         Rendered on the        15th       day of     April    , 2011.

                                            ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney,
301 W. Third Street, 5th Floor, Dayton, Ohio 45422
     Attorney for Plaintiff-Appellee

RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 1502 Liberty Tower, 120 West
Second Street, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1} Robert Lee Baker was found guilty by a jury in the Montgomery

County Court of Common Pleas of three counts of rape of a child under the age of

ten, three counts of sexual battery (parent/child) of a child under the age of thirteen,

and three counts of gross sexual imposition of a child under the age of thirteen; he
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was sentenced accordingly. He appeals from his convictions. For the following

reasons, the judgment of the trial court will be affirmed.

        {¶ 2} Baker is the victim’s father, and he is divorced from the victim’s

mother. In June 2009, when the victim was eight years old, the Dayton police

received a tip by phone that the victim was being sexually abused by her father,

with whom she visited on the weekends.1                                  After questioning the victim, the police

referred her to CARE House, where she was interviewed by a social worker. The

social worker’s interview with the victim was videotaped.

        {¶ 3} In her interview with the social worker, the victim stated that her father

had digitally penetrated her vagina (which she also referred to as her “front private

parts”), had put his penis into her vagina and “anal area,” had made her touch his

penis and engage in fellatio, and had touched her chest. She stated that no one

other than her father had done these things to her, and that this activity had

occurred “all the time” when she visited him on the weekends. The victim also

expressed that she loved her father and missed seeing him.

        {¶ 4} On August 14, 2009, Baker was indicted on three counts of rape of a

child under the age of ten, three counts of sexual battery (parent/child) of a child

under the age of thirteen, and three counts of gross sexual imposition of a child

under the age of thirteen. Before trial, the trial court found the victim competent to

testify. The court also overruled Baker’s motion in limine to exclude the social


             1
              The identity of the caller was not revealed, but the officer who talked with the caller testified that it was not the victim’s
  mother, “the voices [were] totally different.” The mother also denied that she had been the caller or had known about the call
  before the police contacted her.
                                                                                                                                   3

worker’s testimony because the statements made to her by the victim were not

offered for the purpose of medical diagnosis or treatment and overruled, at least in

part, Baker’s motions in limine to exclude his medical records entirely, or at least

those records prior to the dates contained in the indictment. The case was tried to

a jury in February 2010.

        {¶ 5} In the State’s case-in-chief, the victim recounted her father’s sexual

abuse.      The social worker testified very generally about her interview with the

victim and, during this testimony, portions of the videotaped interview with the victim

were played for the jury. Various police officers, medical personnel, and medical

experts also testified. The State presented evidence that the victim had contracted

chlamydia, a sexually transmitted disease, and that Baker had been symptomatic

and had been treated for a sexually transmitted disease, although lab tests did not

confirm the presence of chlamydia.2 In response, the defense presented evidence

that the victim did not have a reputation for truthfulness and Baker testified on his

own behalf, denying that he had abused the victim.

        {¶ 6} Baker was convicted on all of the counts in the indictment. He was

sentenced to life without parole on each count of rape, to be served consecutively,

to eight years on each count of sexual battery, to be served consecutively to each

other but to be merged with the counts of rape, and to five years on each count of



            2
               Pursuant to a search warrant, Baker was tested for chlamydia at Miami Valley Hospital. However, the nurse testified
  that she had performed both tests for the infection improperly; she explained specifically how these errors may have created “a
  false negative” test result. She also testified that Baker was treated with an antibiotic that would “erase the chlamydia” from his
  system.
                                                                                    4

gross sexual imposition, to be served consecutively to each other and to all the

other counts.

       {¶ 7} Baker raises one assignment of error on appeal. The assignment of

error states:

       {¶ 8} “***THE TRIAL COURT ERRED IN ADMITTING TESTIMONY OF

THE ALLEGEDLY MOLESTED CHILD THREE TIMES – ONCE BY VIDEO, AGAIN

BY THE INTERVIEWER, AND A THIRD TIME LIVE – AND THEREBY GIVING

UNDUE EMPHASIS OF SAME SO AS TO COMPROMISE DEFENDANT’S

CONSTITUTIONAL RIGHTS TO A FAIR AND UNBIASED TRIAL AND DUE

PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO

STATE CONSTITUTION.”

       {¶ 9} Baker claims that his rights to due process and a fair trial were

violated by the repetition of the victim’s accusations against him via her live

testimony, the CARE House social worker’s testimony about the abuse recounted

to her by the victim, and the playing of a videotape of the social worker’s interview

with the victim.   He claims that this testimony violated Evid.R. 403(A), which

requires the exclusion of evidence, even if it is relevant, “if its probative value is

substantially outweighed by the danger of unfair prejudice.” He also contends that

the use of the video and the social worker’s testimony “made cross-examination of

[the victim’s] live testimony impossible for all practical purposes,” and created a

“catch-22” requiring him to give up his right to remain silent and testify on his own

behalf.
                                                                                    5

      {¶ 10} We note that the playing of the victim’s interview with the social

worker at the beginning of trial, before the victim had testified herself, constituted

the introduction of inadmissible hearsay, because the statements were not made by

the declarant at trial and were offered to prove the truth of the matter asserted.

Evid.R. 802 and 803(C). Further, since the victim was available and did testify,

Evid.R. 807 is not applicable.

      {¶ 11} We cannot know whether Baker might have offered the victim’s prior

statements, even if the State had not, under the theory that they were inconsistent

(to a limited extent) with her testimony at trial, and thus supported his theory that

the victim had been coached. Evid.R. 801(D)(1)(a). Rather, it appears that the

tape of the victim’s out-of-court statement was offered to show it was consistent

with her in-court testimony.      As such, it could only be offered, perhaps

preemptively since the defense theory was known, to “rebut an express or implied

charge against the declarant of recent fabrication or improper influence or motive.”

Evid.R. 801(D)(1)(b). In any event, Baker did not object on hearsay grounds to the

use of the taped interview, nor has he raised this issue on appeal. Even if this

were plain error, which we do not find for the reasons discussed more fully below,

any error was harmless.

      {¶ 12} With respect to Baker’s argument that the testimony was cumulative,

he does not challenge, individually, the social worker’s testimony, the use of the

video, or the victim’s live testimony.     He acknowledges that the information

obtained from the victim by the social worker was obtained for the purpose of

treatment or diagnosis, and thus was admissible under Evid.R. 803(4).              He
                                                                                       6

concedes that the trial court thoroughly assessed the victim’s competency and

understanding of the difference between true and false statements before she

testified.     And he asserts that the video was “better evidence” than the social

worker’s testimony; he complains about it only on the basis that it was repetitive.

He contends that the State should have used only one, or possibly two, of these

forms of testimony; “three times was unconstitutional.”

        {¶ 13} Baker did not object at trial to the prejudicial nature of the cumulative

testimony or of the evidence individually; he did file a pre-trial motion to exclude the

social worker’s testimony, but only on the basis that it was hearsay because the

victim’s statements had not been for the purpose of medical diagnosis and

treatment.      After a hearing, the trial court concluded that the testimony was

admissible and overruled this motion. At the pre-trial hearings, Baker did not raise

any other objections to the social worker’s testimony, the recording, or to the

potential for repetitious testimony. When the State sought to play the tape of the

interview at trial, Baker’s attorney stated, at sidebar, only that he “object[ed] to the

tape for reasons we’ve already talked about.” Therefore, he has waived all but

plain error.

        {¶ 14} In order to find plain error, there must be a deviation from a legal rule,

the error must be an “obvious” defect in the trial proceedings, and the error must

have affected a defendant’s “substantial rights.” State v. Dixon, 152 Ohio App.3d

760, 2003-Ohio-2550, ¶21, citing State v. Barnes (2002), 94 Ohio St.3d 21, 27.

Plain error is to be used “with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” Id.
                                                                                      7

      {¶ 15} The admission or exclusion of evidence is left to the sound discretion

of the trial court and will not be disturbed on appeal absent an abuse of that

discretion. State v. Morales (1987), 32 Ohio St.3d 252, 257; State v. Simpson,

Montgomery App. No. 19797, 2004-Ohio-669. An abuse of discretion implies an

arbitrary, unreasonable, unconscionable attitude on the part of the trial court. State

v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶129-130.

      {¶ 16} Pursuant to Evid. R. 403(B), it is within the sound discretion of the trial

court to exclude evidence when the probative value of the evidence is substantially

outweighed by considerations of undue delay or needless presentation of

cumulative evidence.     The mere fact that evidence is repetitive will not be

considered reversible error unless the defendant was unfairly prejudiced thereby.

State v. Smith, 80 Ohio St.3d 89, 108-109, 1997-Ohio-355; State v. Feaster,

Summit App. No. 24367, 2009-Ohio-2558, ¶24; see, also, State v. Boler, Athens

App. No. 09CA24, 2010-Ohio-3344, ¶74-75. The pertinent question is whether the

evidence was unfairly prejudicial to the defendant, not whether it was unfavorable

to him.

      {¶ 17} Although Baker contends that the video of the victim’s interview with

the social worker and the social worker’s testimony about the interview were

cumulative, a review of the record does not support this claim. The social worker

laid the foundation for the video; she briefly summarized – in three sentences – the

acts of sexual abuse that the victim had recounted; then the videotape of portions

of the interview was played, wherein the victim described with greater specificity the

types of sexual activities in which she had engaged with her father. In our view,
                                                                                       8

this evidence was not cumulative.

       {¶ 18} The victim’s accounts of Baker’s sexual abuse –           whether to the

social worker or at trial – were clearly relevant to the offenses for which Baker was

indicted, and thus admissible in the absence of any legitimate reason to exclude

them, such as unfair prejudice, confusion of the issues, or misleading the jury.

Evid.R. 402 and 403.       At trial, Baker did not object on any of these bases.

Moreover, Baker did not dispute that the victim had been sexually abused; his

theory of the case was that someone else had committed the abuse. When Baker

testified at trial, he denied engaging in any type of sexual activity with the victim and

stated that the accusations against him were rooted in his visitation problems with

his ex-wife, the victim’s mother. He presented evidence, through the testimony of

the victim’s paternal grandmother, that the victim’s “reputation as for truthfulness”

was “not very good.”

       {¶ 19} Baker’s theory of defense from the beginning of the trial was that the

victim’s statements should not be taken at face value. For example, in his opening

statement, Baker’s counsel said “[t]he question that’s always out there, in every

single one of these cases, is are these accusations real or are they coached?”

Baker continued this theme in closing argument, where he stated that the social

worker’s statements during the interview with the victim, when examined carefully,

“started out as open-ended questions, [but] turned out not to be open-ended;” the

victim “was led to all of the answers all the way through the tape.” He pointed to

medical evidence that was “consistent with fabrication.” He also asserted that the

victim’s account and the terminology she used to describe the alleged abuse had
                                                                                      9

changed over time “so someone taught her. So there’s coaching go on [sic] here

somewhere.” Baker concluded that the “adult terms” used for the first time by the

victim at trial confirmed that, in the interim, she had been talking with adults about

the alleged abuse. And “[h]ow easy it is to program an eight-year-old. How very

easy it is.”

       {¶ 20} The State argues that, insofar as Baker’s defense relied on the social

worker’s alleged coaching of the victim and on the changes in the victim’s testimony

over time, he cannot be heard to object to the examination by the jury of her various

accounts of the abuse.      The State relies on State v. Cullay (Mar. 12, 2002),

Franklin App. No. 97AP-1590, wherein the court held that allowing a jury to

repeatedly listen to a confession did not unduly emphasize evidence favorable to

the State where that confession, which the defendant had sought to discredit at

trial, was also the center of the defense’s strategy.

       {¶ 21} In our view, the repetition of part of the victim’s allegations was not an

obvious defect in the proceedings and did not affect Baker’s substantial rights. The

victim’s allegations of abuse were probative of his guilt, and the consistency or

inconsistency with which she was able to recount his behavior over a period of time

and the manner in which she described it were relevant to the victim’s credibility

and to Baker’s theory that she was fabricating facts and had been coached to

testify as she did. Likewise, the presentation of a portion of the videotape of the

social worker’s interview with the victim played a role in Baker’s defense, insofar as

he asserted that the social worker’s manner of questioning the victim had directed

the victim’s account.
                                                                                                                               10

        {¶ 22} We find that the danger of unfair prejudice from the presentation of

the victim’s live testimony, her recorded statement, and the social worker’s brief

description of her interview with the victim did not substantially outweigh the

probative value of the evidence. The admission of this evidence did not prejudice

Baker’s substantial rights, and thus was not plain error. The record simply does

not support Baker’s claim that he was unfairly prejudiced by the introduction of the

victim’s account in various forms and at various times. Moreover, the doctrine of

cumulative error does not apply because Baker has not identified multiple instances

of harmless error. Garner, 74 Ohio St.3d at 64.

        {¶ 23} Although unrelated to the stated assignment of error, Baker also

contends that there was “questionable juror misconduct” at trial because one of the

jurors had not disclosed in voir dire that she had personal knowledge of a similar

case where a father had been accused of sexually abusing his child; in that

situation, the father had later been found to be “innocent.”3

        {¶ 24} When the juror’s comments during deliberations came to the court’s

attention, defense counsel requested a mistrial, but the parties agreed that the trial

court should question the juror. When questioned, the juror stated that she could

be fair and impartial. The State pointed out that the bias, if any, arising from the

juror’s knowledge of another case in which the father was exonerated, would be


            3
              Voir dire was not transcribed. During the discussion of the juror’s alleged bias in chambers after jury deliberations
  had begun, the prosecutor stated that he had asked potential jurors during voir dire whether “a close family member or close
  friend” had ever been connected with a sexual abuse case. In response to that question, the juror had not disclosed her
  relationship to the “similar case” that she mentioned during deliberations. Because the juror’s connection with the other case is
  unclear, the record does not disclose whether this connection should have been divulged in voir dire.
                                                                                    11

against the State. The trial court overruled Baker’s motion for a mistrial.

       {¶ 25} In his brief, Baker contends that “the interview of the juror removed

any chance” to “challenge the ruling and the verdicts on the basis of juror

misconduct.” One interpretation of this argument is that Baker contends that the

interview with the juror, in itself, was prejudicial.    Another interpretation is that

Baker concedes there was no error in the court’s handling of this matter and, as

such, recognizes that the trial court’s correct handling of the matter precluded

assigning this conduct as error. We will assume, for the sake of argument, that

Baker alleges error in the questioning of the juror.

       {¶ 26} Baker expressly agreed to have the juror questioned by the judge, so

he has waived any error in this regard.         Also, such an inquiry is the proper

procedure when the completeness of a juror’s answers in voir dire or a juror’s

impartiality is questioned. See Jenkins v. Bazzoli (1994), 99 Ohio App.3d 421,

426-427; State v. Jones (Sept. 12, 1997), Montgomery App. No. 16123.              Trial

courts have discretion in determining a juror’s ability to be impartial. State v.

Williams (1983), 6 Ohio St.3d 281, 288.

       {¶ 27} The trial court did not abuse its discretion in this instance, where the

juror expressly stated her ability to judge this case on its own facts and where any

bias arising from the juror’s familiarity with the other case would just as likely have

favored the defense. The trial court’s appropriate interview with a juror to confirm

her impartiality was not prejudicial to the defendant.

       {¶ 28} The assignment of error is overruled.

       {¶ 29} The judgment of the trial court will be affirmed.
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                                ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

R. Lynn Nothstine
Richard A. Nystrom
Hon. Gregory F. Singer
