[Cite as State v. Mathes, 2013-Ohio-1732.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2012-03-028
        Plaintiff-Appellee,                         :
                                                                OPINION
                                                    :            4/29/2013
   - vs -
                                                    :

JAMES DAVID MATHES,                                 :

        Defendant-Appellant.                        :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2011 CR 0761


D. Vincent Faris, Clermont County Prosecuting Attorney, David H. Hoffmann, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Paul Croushore, P.O. Box 75170, Cincinnati, Ohio 45275, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, James David Mathes, appeals his conviction in the

Clermont County Court of Common Pleas for rape. For the reasons set forth below, we

affirm the conviction.

        {¶ 2} On August 31, 2011, Mathes was indicted for one count each of rape in

violation of R.C. 2907.02(A)(2), unlawful restraint in violation of R.C. 2905.03(A), kidnapping,

in violation of R.C. 2905.01(A)(4), and tampering with evidence in violation R.C.
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2921.12(A)(1). These charges arose out of an incident that occurred on June 4, 2010. On

that day, Mathes had been drinking beer since about 1:00 P.M. At about 7:00 P.M., A.C., a

neighbor, came over to Mathes' house. A.C. was 14 years old at the time and was friends

with Mathes' niece, Marisa, who lived with Mathes. A.C. had gone to the house to retrieve

some clothes that Marisa had borrowed. Marisa was not home at the time, but Mathes was

home. At trial, A.C. testified that she went into the home and into Marisa's room to get her

clothes, and as she was walking to the front door to leave, Mathes grabbed her by the arm

and pinned her down on the couch. A.C. testified that she protested, but Mathes pushed her

down with his left arm and then with his right hand reached up her shorts and digitally

penetrated her vagina. A.C. explained that by her estimation Mathes held her for three to

five minutes. She eventually broke free from his grasp and ran home crying.

      {¶ 3} Later that night, A.C. told her father that Mathes "touch[ed] her." A.C.'s father

called the Union Township Police Department who came to the home and obtained a written

statement from A.C. regarding the incident. Detective Keith Puckett then conducted a

videotaped interviewed with A.C. and asked her to write a second statement. After speaking

with A.C., Detective Puckett and a few other officers went to Mathes' home to speak to him

about the allegations. Mathes agreed to go to the police station and be interviewed. During

the interview, which was also recorded, Mathes denied having any contact with A.C. and

agreed to provide DNA samples to the police. Detective Puckett scraped under Mathes'

fingernails with wooden scrapers and collected nail clippings from Mathes for DNA analysis.

Emily Draper, a chemist with the Ohio Bureau of Criminal Investigation, tested these samples

and testified at trial that she found A.C.'s DNA on a swab from the scraper of Mathes' right

hand fingernails and on the left hand fingernail scraper. Furthermore, she stated that the

DNA on his fingernails produced more of A.C.'s DNA than Mathes' own DNA. She testified



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that this strength of a profile was consistent with digital penetration of a mouth, vagina or

anus.

        {¶ 4} Mathes testified at trial on his own behalf. He maintained that he had no

contact with A.C. and suggested that her DNA may have gotten on his fingernails due to his

handling of her laundry. The jury ultimately found Mathes guilty of rape, kidnapping, and

unlawful restraint, but not guilty of tampering with evidence. The trial court found that the

three counts represented allied offenses of similar import, and the state elected to proceed

on Count 1, rape, for sentencing. The trial court then designated Mathes as a Tier III Sex

Offender/Child Victim Registrant and imposed a prison sentence of five years. Mathes timely

appeals his conviction raising two assignments of error.

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S REQUEST TO

PLAY THE VIDEO OF THE MINOR WITNESS A.C.'S INTERVIEW WITH THE POLICE TO

SHOW HER INCONSISTENT STATEMENTS AND ODD DEMEANOR, AND IN FAILING TO

MAKE A PROPER RECORD OF THE JURY QUESTION AS TO HER WRITTEN

STATEMENTS.

        {¶ 7} In his first assignment of error, Mathes argues the trial court erred in failing to

admit into evidence three prior inconsistent statements of A.C. Mathes asserts that the trial

court's decision not to admit A.C.'s prior inconsistent statements deprived him of the

opportunity to effectively confront the witness with these inconsistencies.

        {¶ 8} In general, the "trial court's decision to admit or exclude evidence will not be

reversed by a reviewing court absent an abuse of discretion." State v. Jackson, 12th Dist.

No. CA2011-01-001, 2011-Ohio-5593, ¶ 16. An abuse of discretion implies that the court's

decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or

judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
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       {¶ 9} Mathes argues that A.C.'s two written statements and the videotaped interview

should have been admitted into evidence, as these three statements were admissible

pursuant to Evid.R. 613(B). Evid.R. 613(B) states, in part, that extrinsic evidence of a prior

inconsistent statement by a witness is admissible if both of the following apply:

              (1) If the statement is offered solely for the purpose of
              impeaching the witness, the witness is afforded a prior
              opportunity to explain or deny the statement and the opposite
              party is afforded an opportunity to interrogate the witness on the
              statement or the interests of justice otherwise require;

              (2) The subject matter of the statement is one of the following:

              (a) A fact that is of consequence to the determination of the
              action other than the credibility of a witness

              (b) A fact that may be shown by extrinsic evidence under Evid.R.
              608(A), 609, 616(A), or 616(B);

              (c) A fact that may be shown by extrinsic evidence under the
              common law of impeachment if not in conflict with the Rules of
              Evidence.

       {¶ 10} Thus, under Evid.R. 613(B), a party may introduce extrinsic evidence of a prior

inconsistent statement to impeach the witness's credibility. In order to introduce the prior

inconsistent statement into evidence, proper foundation must be laid. State v. Lewis, 12th

Dist. CA2010-08-017, 2011-Ohio-415, ¶ 30, citing State v. Mack, 73 Ohio St.3d 502, 514-515

(1995). A proper foundation is laid where the witness denies making the prior statement.

State v. Hartman, 12th Dist. No. CA98-06-040, 1999 WL 188145, *6 (April 5, 1999), citing

State v. Colvin, 12th Dist. No. CA94-04-092, 1995 WL 103235, *4 (March 13, 1995).

However, if a witness admits to making the prior inconsistent statement then extrinsic

evidence is not admissible. Id.; State v. Kulasa, 10th Dist. 11AP-826, 2012-Ohio-6021, ¶ 12.

       {¶ 11} Prior to being presented with the two written statements, A.C. admitted during

direct examination that she initially told the police that the incident occurred outside on a

picnic table but later changed her story and said that it actually occurred inside the home on
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a couch. A.C. explained that, "when I was writing everything down, I was scared, and I was

nervous, so I just kind of wrote really, really fast to get it over with." During cross-examination

of A.C., Mathes presented A.C. with copies of the two statements. Mathes thoroughly cross-

examined A.C. regarding inconsistent facts between each statement, such as her purpose for

going over to the Mathes' residence, the location where the assault occurred, and whether

Mathes grabbed her from behind or pulled her arms up. When confronted with each of these

inconsistencies, A.C admitted that the statements were inconsistent but explained that she

was "confused" and "scared" that night. As to the videotaped interview, initially, A.C. testified

that she could not remember what she told Detective Puckett during the interview. However,

later during cross-examination, A.C. admitted to telling Detective Puckett during this interview

that she was not "being completely truthful" as the incident occurred in the house and not in

the backyard as she originally told him. A.C. explained that the reason she said it occurred in

the backyard was because she "was scared to say that I went into the house, because I

thought it would make me look bad."           A.C. further testified that although there were

differences in the details of the assault in her trial testimony and those contained in her

statements, the way in which she testified at trial was what "really happened." Based on this

testimony, A.C. admitted to making the prior inconsistent statements and accordingly the two

written statements and the videotaped interview were not admissible under Evid.R. 613(B).

       {¶ 12} Mathes asserts that the videotaped interview should at least been played for

the jury because it showed her "odd demeanor" and "contrary behavior." After a review of

the record, it appears that defense counsel failed to specifically question A.C. as to her

conduct during the interview, but rather focused on her inconsistent statements.

Furthermore, defense counsel could have questioned Detective Puckett as to A.C.'s

demeanor during the interview to establish her inconsistent conduct. However, defense

counsel failed to ask about this and focused on A.C.'s inconsistencies in her statements. As

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detailed above, because A.C. admitted to making inconsistent statements, the written

statements and the videotaped interview were inadmissible under Evid.R. 613(B).

Accordingly, we reject Mathes' argument and find that the trial court did not abuse its

discretion in excluding A.C.'s three prior statements.

       {¶ 13} Mathes also argues in his first assignment of error that the trial court erred in

failing to provide the jury with copies of A.C.'s written statements when requested by the jury.

Generally, if, "during the course of its deliberations, a jury requests further instruction, or

clarification of instructions previously given, a trial court has discretion to determine its

response to that request." State v. Baker, 12th Dist. No. CA2007-09-018, 2008-Ohio-5544, ¶

32, citing State v. Carter, 72 Ohio St.3d 545, 553 (1995). Thus, in response to a question

from the jury, it is within the sound discretion of the trial court to provide supplemental

instructions or to refer the jury to instructions already provided. Id.

       {¶ 14} We first note that trial counsel waived placing the proceedings on the record as

to the question posed by the jury. However, appellate counsel properly filed a request

pursuant to App.R. 9(C) to supplement the record with a statement of evidence. See State v.

Hileman, 12th Dist. No. CA96-10-219, 1998 WL 161386, *1 (Apr. 6, 1998). The statement of

evidence does not indicate that Mathes objected to the question or the answer provided to

the jury. As there was no objection at trial, Mathes has waived all but plain error. Crim.R. 52.

An alleged error is plain error only if the error is obvious and but for the error, the outcome of

the trial clearly would have been different. State v. Blankenburg, 197 Ohio App.3d 201,

2012-Ohio-1289, ¶ 53 (12th Dist.), citing State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,

¶ 108. A finding of harmless error, however, is appropriate where there is "overwhelming

evidence of guilt" or "some other indicia that the error did not contribute to the conviction."

State v. Sims, 12th Dist. No. CA2007-11-300, 2009-Ohio-550, ¶ 34, quoting State v.

Ferguson, 5 Ohio St.3d 160, (1983), fn. 5. According to the statement of evidence, during
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jury deliberations the jury asked: "Can we have [A.C.'s written statements[?]" Defense

counsel agreed to the court's answer that "the evidence before [the jury] is what has been

admitted, and [the court] cannot produce evidence which is not admitted."

       {¶ 15} After reviewing the record, we cannot say that the trial court's failure to provide

the jury with A.C.'s written statements represented error let alone plain error. As discussed

above, the trial court properly denied admission of A.C.'s statements as extrinsic evidence

pursuant to Evid.R. 613(B). Accordingly, as the statements were not admitted into evidence,

the jury was not entitled to view them during deliberations. See R.C. 2945.35; State v.

Graven, 52 Ohio St.2d 112, 113 (1977) (finding that evidence which has been ruled

inadmissible is excluded from the jury room.).

       {¶ 16} Mathes' first assignment of error is overruled.

       {¶ 17} Assignment of Error No. 2:

       {¶ 18} THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A MISTRIAL AND

DISCHARGE THE JURY WHERE THE OFFICER TESTIFIED THAT MATHES REQUESTED

AN ATTORNEY.

       {¶ 19} In his second assignment of error, Mathes asserts the jury was improperly

permitted to hear testimony that he "requested an attorney." Essentially, Mathes contends

that his request for counsel was used as substantive evidence of guilt which violated his due

process rights requiring the trial court to grant a mistrial.

       {¶ 20} The state played a video of Mathes' interview during Detective Puckett's

testimony. During this interview, Mathes asked Detective Puckett, "[s]hould I get a lawyer."

Once the videotape concluded, Detective Puckett explained the process he used to obtain

nail clippings from Mathes to test for DNA. Detective Puckett explained that he started

opening the package of nail clippers in order to obtain the clippings but "then [Mathes]



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requested an attorney." So he placed the clippers back into their packages until he received

a search warrant for the clippings. It is this testimony that Mathes claims prejudiced him.

       {¶ 21} We first note that there was no objection to Detective Puckett's comment or to

the video. In fact during a side bar conference, defense counsel specifically agreed to "play

the whole" video. Accordingly, as there was no objection, Mathes has waived all but plain

error. Crim.R. 52(B).

       {¶ 22} After a review of the record, we find that even if it was error for Detective

Puckett to testify regarding Mathes' request for an attorney, such testimony did not contribute

to Mathes' conviction. Here, the state presented overwhelming evidence of Mathes' guilt.

The victim provided a detailed description as to the manner in which Mathes sexually

assaulted her. Although there were some differences in the details of the assault, A.C.

consistently stated that Mathes digitally penetrated her.          The DNA evidence was

overwhelming and corroborated A.C.'s account of her encounter with Mathes. The state

presented evidence that A.C.'s DNA was found on the swab from Mathes' left hand fingernail

scraper and the swab from the right hand fingernail scraper. In fact, Draper testified that

"A.C. was the major source of DNA here" such that that there was more DNA "from [A.C.]

than from Mr. Mathes himself." Draper further testified that the amount of A.C.'s DNA found

on the nail scrapings was consistent with "something like a vaginal or anal penetration or

even oral penetration" and not casual contact. Accordingly, any error the trial court made in

allowing testimony regarding Mathes' request for counsel was, at best, harmless error.

       {¶ 23} Moreover, we note that during defense counsel's re-direct examination of

Mathes, counsel specifically questioned Mathes regarding his discussion with Detective

Puckett about obtaining a lawyer. "Appellant cannot, on appeal, complain that the trial court

erred in permitting the admission of prejudicial testimony which he elicited from the witness.

The rule of invited error prohibits a party who induces error in the trial court from taking
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advantage of such error on appeal." State v. Williams, 12th Dist. No. CA2006-03-067, 2007-

Ohio-2699, ¶ 27.

       {¶ 24} As a result, we find appellant has not shown that the outcome of the trial would

have been different without the admission of the statements at issue. Mathes' second and

final assignment of error is therefore overruled.

       {¶ 25} Judgment affirmed.



       HENDRICKSON, P.J. and PIPER, J., concur.




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