[Cite as State v. Quinn, 2019-Ohio-3980.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.     18CA0022-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRANDON QUINN                                         COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   17 CR 0315

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2019



        PER CURIAM.

        {¶1}     Appellant, Brandon Quinn, appeals from his convictions for gross sexual

imposition (“GSI”) in the Medina County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     According to the victim (“S.L.”), she was getting dressed for school one morning

in 2012 when she noticed her mother’s boyfriend’s cell phone propped up against her bed, facing

the area of her bedroom by a mirror where she normally gets dressed. She picked the phone up

and realized it was actively recording a video. She took the phone to her mother, who was still

in bed at the time, and told her to look at it. Mr. Quinn immediately grabbed the phone and

began calling S.L. a liar. S.L. rushed off to school, where she told a friend and two others about

the incident. School officials called the police, and Mr. Quinn was charged with voyeurism.

S.L.’s mother did not believe her daughter’s story, and S.L. was soon forced to move out of their
                                                 2


home and live at her aunt’s house for the remainder of the school year. S.L. eventually moved to

Michigan to live with her father and his girlfriend.

        {¶3}   At some point in 2012 or 2013, she revealed to her boyfriend (“C.R.”), her father,

and her father’s girlfriend that Mr. Quinn had been molesting her for years, but no further action

was taken. When her father was driving her back to Ohio for Mr. Quinn’s voyeurism trial, S.L.

spoke to her mother on the phone. S.L. had a panic attack, was afraid, and did not want to betray

her mother, so she decided not to attend the trial, and her father drove her back home. After S.L.

failed to appear at Mr. Quinn’s trial, the voyeurism charge was dismissed.

        {¶4}   S.L. eventually moved back to Ohio in 2015, and she decided to finally tell the

prosecutor and police that Mr. Quinn had been molesting her for years. She claimed Mr. Quinn

would wake her up for school almost every day by rubbing her back and touching her breasts,

buttocks, and vagina. During one particular incident, she was lying on her stomach in bed when

Mr. Quinn crawled into bed with her, rubbed his penis on her buttocks, and ejaculated onto her

back.

        {¶5}   Mr. Quinn was charged with two counts of felony-three GSI, which allegedly

occurred in 2007 when S.L. was less than 13 years old. He was also charged with nine counts of

felony-four GSI, which allegedly occurred from 2008 to 2012 when S.L.’s ability to consent was

substantially impaired because she was asleep. After a jury trial, Mr. Quinn was convicted of all

eleven counts of GSI. The trial court sentenced him to an aggregate total of four years in prison

and classified him as a Tier II sex offender.

        {¶6}   Mr. Quinn now appeals from his convictions and raises four assignments of error

for this Court’s review.
                                                3


         {¶7}   For ease of analysis, we will reorganize and consolidate certain assignments of

error.

                                                II.

                              ASSIGNMENT OF ERROR FOUR

         THE VERDICTS WERE AGAINST THE MANIFEST WEIGHT AND THE
         SUFFICIENCY OF THE EVIDENCE

         {¶8}   In his fourth assignment of error, Mr. Quinn argues that his convictions were not

supported by sufficient evidence and were against the manifest weight of the evidence.

Although sufficiency and manifest weight are two separate, legally distinct arguments and

should be argued separately, Mr. Quinn has chosen to argue them together in his brief, and we

will therefore address them together.       See, e.g., State v. Gilbert, 9th Dist. Lorain No.

17CA011209, 2018-Ohio-1883, ¶ 5; State v. Dean, 9th Dist. Lorain No. 18CA011290, 2019-

Ohio-1391, ¶ 5.

         {¶9}   Whether a conviction is supported by sufficient evidence is a question of law,

which this Court reviews de novo.        State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“Sufficiency concerns the burden of production and tests whether the prosecution presented

adequate evidence for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575,

2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “The relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” Id., quoting State

v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve

evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the

trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
                                                 4


       {¶10} Mr. Quinn was convicted in this case of two counts of felony-three gross sexual

imposition, under R.C. 2907.05(A)(4), which provides: “No person shall have sexual contact

with another, not the spouse of the offender [or] cause another, not the spouse of the offender, to

have sexual contact with the offender * * * when * * * [t]he other person * * * is less than

thirteen years of age, whether or not the offender knows the age of that person.” Mr. Quinn was

also convicted of nine counts of felony-four gross sexual imposition, under R.C. 2907.05(A)(5),

which provides: “No person shall have sexual contact with another, not the spouse of the

offender [or] cause another, not the spouse of the offender, to have sexual contact with the

offender * * * when * * * [t]he ability of the other person to resist or consent * * * is

substantially impaired because of a mental or physical condition * * * and the offender knows or

has reasonable cause to believe that the ability to resist or consent of the other person * * * is

substantially impaired because of a mental or physical condition * * *.”

       {¶11} “Sexual contact” includes “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.”           R.C.

2907.01(B). “A person acts purposely when it is the person’s specific intention to cause a certain

result * * *.” R.C. 2901.22(A). This Court has consistently held that a trier of fact may infer a

purpose of sexual arousal or gratification from the type, nature, and circumstances of the contact,

along with the personality of the defendant. E.g., State v. Pistawka, 9th Dist. Summit No. 27828,

2016-Ohio-1523, ¶ 16.      Furthermore, sleep is considered a “mental or physical condition”

sufficient to substantially impair a victim’s ability to resist unwelcomed sexual contact within the

meaning of R.C. 2907.05(A)(5). State v. Porter, 9th Dist. Medina No. 12CA0061-M, 2013-

Ohio-3969, ¶ 19.
                                                  5


       {¶12} Mr. Quinn first argues that insufficient evidence was presented at trial to establish

that S.L.’s ability to resist or consent was substantially impaired due to being asleep because she

only testified that she pretended to be asleep.

       {¶13} Our review of the record reveals that S.L. testified she would normally sleep on

her stomach, wearing only her underwear, shorts, and a t-shirt in bed. According to S.L., Mr.

Quinn would “come into [her] room, keep the lights off, close the door, sit next to [her] on the

bed, and rub [her] back.” She explicitly testified that she would be asleep “sometimes” and

would not hear him come into the room. Mr. Quinn would rub her lower back under her clothes

and “would rub [her] butt and the outside of [her] vagina, the side of [her] breast.” S.L. would

pretend to be asleep when he rubbed the sides of her breasts, but would sometimes “jolt” her

body and say, “Go away. Get out.” She testified that Mr. Quinn would just tell her to relax. He

would remove her underwear and “would spread [her] bottom with his hands and [her] vagina

with * * * his thumbs on the side * * *.” He would also touch the side of her breasts under her

shirt, and she would “put [her] arms down very tight to try and restrict him.” Sometimes he

would stop, but sometimes he would continue touching her. She believed that the touching was

not accidental, but that Mr. Quinn was “feeling it, feeling [her], enjoying it.” These almost daily

incidents would last for fifteen-to-twenty minutes before Mr. Quinn would finally leave her

bedroom. She testified that, during one particular instance when she was sixteen or seventeen,

she was sleeping on her stomach and Mr. Quinn “crawled up” behind her, crouched over her

with his underwear still on, and began “rubbing his penis against [her] butt.” He eventually “left

semen on [her] butt.” Thus, S.L. indeed provided graphic details of how the molestation would

continue once she woke up, and she admitted that she sometimes still pretended to remain asleep

or tried to “restrict” Mr. Quinn’s touches during the incidents. Her detailed account of Mr.
                                                 6


Quinn’s actions and her own reactions throughout the sexual assaults, however, does not

contradict or detract from her testimony that she would “sometimes” still be asleep in her bed,

unaware that Mr. Quinn had even entered her room, when he began touching her inappropriately.

       {¶14} Mr. Quinn also argues that even if S.L. was “sometimes” asleep, no reasonable

trier of fact could determine that that element was established for every count of felony-four GSI.

We find no merit in this argument. The State presented evidence that the sexual assaults

occurred almost daily between January 1, 2008, and June 30, 2012. Instead of charging Mr.

Quinn with hundreds of felonies, the State chose to charge him with nine felony-four GSI’s, each

of which included a different six-month time span. Thus, the State was not required to prove that

each and every sexual assault during those four-and-a-half years occurred while S.L. was asleep,

only that at least one GSI every six months occurred while she was asleep.

       {¶15} After a review of the record, this Court concludes that the State presented

sufficient evidence, if believed, to establish that Mr. Quinn committed at least one GSI every six

months between January 1, 2008, and June 30, 2012, while S.L. was asleep. Based on S.L.’s

testimony, a jury could have reasonably determined the State proved the element of a “mental or

physical condition,” i.e., sleep, for each of the nine counts of felony-four GSI beyond a

reasonable doubt.

       {¶16} When a conviction is challenged as being against the manifest weight of the

evidence, this Court has stated:

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.
                                               7


State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary

power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

       {¶17} In arguing that his convictions were against the manifest weight of the evidence,

Mr. Quinn contends that the State relied on “purely circumstantial evidence presented through *

* * testimony” without any physical or otherwise corroborating evidence. This argument is

without merit.

       {¶18} It is axiomatic that “[c]ircumstantial evidence and direct evidence inherently

possess the same probative value * * *.” Jenks, 61 Ohio St.3d 259, at paragraph one of the

syllabus. Nevertheless, the State presented a wealth of direct evidence at trial, including the

victim’s testimony. “‘[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-

Ohio-4683, ¶ 28, quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the

syllabus. The jury was best able to view the witnesses and observe their demeanor, gestures, and

voice inflections, and use those observations in weighing the credibility of the proffered

testimony. See State v. Cook, 9th Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30. The jury in

this case chose to believe S.L.’s allegations that Mr. Quinn had repeatedly molested her in her

bedroom over the span of many years and found that the State had proven eleven counts of GSI

beyond a reasonable doubt. Physical evidence or evidence corroborating the victim’s testimony
                                                 8


is not required to support a conviction for GSI.        State v. Thomas, 9th Dist. Wayne No.

10CA0003, 2010-Ohio-6373, ¶ 12. This Court has consistently held that “[w]e will not overturn

a conviction as being against the manifest weight of the evidence simply because the trier of fact

chose to believe the State’s version of events over another version.” State v. Fry, 9th Dist.

Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13.

       {¶19} Mr. Quinn further claims that the State’s evidence was “suspect” because S.L. did

not come forward with her molestation allegations until 2016, i.e., nine years after the sexual

abuse allegedly started. He questions why she did not reveal her allegations sooner, either to the

police or to her counselors, and suggests that discussing the cell phone video with police back in

2012 would have been the “perfect opportunity” to disclose the sexual abuse. S.L. and C.R. both

testified that S.L. first broke down and told C.R., S.L.’s father, and her father’s girlfriend about

the molestation sometime in either 2012 or 2013. S.L. explained that she never went to the

police with her sexual abuse allegations for many years for a variety of reasons, including shame

and embarrassment. Mr. Quinn directs us to no law which required S.L. to report her sexual

abuse to the authorities any sooner than she did in this case, and we accordingly find no merit in

this argument. See App.R. 16(A)(7).

       {¶20} In reviewing the entire record, weighing the evidence and all reasonable

inferences, and considering the credibility of witnesses, we cannot say that the jury, in resolving

any conflicts in the evidence, clearly lost its way and created a manifest miscarriage of justice.

See Otten at 340. Mr. Quinn has also not demonstrated how this is an exceptional case where the

evidence presented weighs heavily in his favor and against conviction. See Thompkins at 387.

       {¶21} Mr. Quinn’s fourth assignment of error is overruled.
                                                9


                              ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED IN ALLOWING A VIDEO TO BE PLAYED
       DURING TRIAL IN (SIC) THAT THE STATE HAD NOT BEEN (SIC)
       TURNED OVER IN DISCOVERY. THE VIDEO VIOLATED OHIO RULE OF
       EVIDENCE 403(A), AS IT BORE NO PROBATIVE VALUE TO THE
       PROCEEDINGS, CAUSED CONFUSION AMONG THE JURY, AND WAS
       UNFAIRLY PREJUDICIAL TO THE DEFENDANT.

                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN ALLOWING THE VIDEO TO BE PLAYED
       IN THAT THE VIDEO WAS ADMITTED CONTRARY TO OHIO RULE OF
       EVIDENCE 404(B). IT WAS EVIDENCE OF ANOTHER ALLEGED CRIME
       OF DEFENDANT, WHICH HAD NO VALUE TO THE CRIMES
       DEFENDANT WAS CHARGED WITH COMMITTING.

       {¶22} In his first and second assignments of error, Mr. Quinn argues that the trial court

erred in playing the cell phone video of S.L. getting dressed in her bedroom and then admitting

the video into evidence.

       {¶23} At the outset, we are compelled to note that although Mr. Quinn assigns as error

the prosecutor’s failure to provide the cell phone video in discovery, he makes no actual

argument in support of that claim. See App.R. 16(A)(7). He only mentions the State’s failure to

provide discovery briefly in the statement of facts portion of his merit brief, which does not

satisfy his duty to present an argument with respect to each assignment of error under App.R.

16(A)(7). We decline to assume Mr. Quinn’s duty on appeal and create an argument on his

behalf as to discovery of the video. See In re E.G., 9th Dist. Medina No. 16CA0075-M, 2017-

Ohio-2584, ¶ 27 (“[I]t is not the duty of this Court to scour the record for evidence and construct

an argument on an appellant’s behalf.”). Nevertheless, the same attorney represented Mr. Quinn

in both his voyeurism and GSI cases, and the prosecutor stated at trial that the video had been

previously provided to defense counsel in the voyeurism case. In objecting to the video, defense

counsel stated, “This is not the version of this tape that I have previously seen.” Thus, even if
                                                 10


Mr. Quinn had set forth an argument challenging the State’s failure to provide discovery of the

video, defense counsel essentially admitted to receiving a copy of the video in advance,

previously viewing it, and specifically recalling its contents, and we would likewise determine

that Mr. Quinn has not suffered any prejudice.

          {¶24} On appeal, Mr. Quinn is only challenging the trial court’s decision to allow the

playing of the cell phone video and the admission of the video into evidence; he is not

challenging any of the trial testimony related to the video. The decision to admit or exclude

evidence lies within the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180,

(1987).     We therefore review a trial court’s decision to admit other acts for an abuse of

discretion. State v. Higgins, 9th Dist. Summit No. 27700, 2018-Ohio-476, ¶ 44. The term abuse

of discretion indicates that the court’s attitude is unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

          {¶25} Mr. Quinn argues that the trial court erred in playing and admitting the cell phone

video at trial in violation of Evid.R. 403(A) and 404(B). “Although relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” Evid.R. 403(A). “Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as proof of

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

accident.” Evid.R. 404(B). See also R.C. 2945.59. As the Supreme Court of Ohio has stated,

          the real issue when Evid.R. 404(B) evidence is improperly admitted at trial is
          whether a defendant has suffered any prejudice as a result. If not, the error may
          be disregarded as harmless error. And while courts may determine prejudice in a
          number of ways and use language that may differ, they focus on both the impact
          that the offending evidence had on the verdict and the strength of the remaining
                                                  11


       evidence. Both the error’s impact on the verdict and the weight of the remaining
       evidence must be considered on appellate review.

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 25.

       {¶26} As noted above Mr. Quinn is only challenging the trial court’s decision to allow

the playing of the cell phone video and the admission of the video into evidence. On appeal, he

has not challenged any of the trial testimony related to the video, which was undeniably

extensive. S.L. testified about finding the cell phone in record mode in her room, about what she

was doing immediately before finding the phone, and about the aftermath of finding the phone

recording her. In fact, almost all of the witnesses testified in some way about the video. In

addition, S.L. read from the statement she provided to police about finding the cell phone and

that statement was admitted into evidence as a defense exhibit. Even without seeing the contents

of the video, given the evidence before it, it seems difficult to fathom that the jury would have

questioned or doubted that a video as described by the witnesses existed. Thus, even assuming

without deciding that the video should not have been played for the jury or admitted at trial

because it represented improper other acts evidence, this Court concludes, after considering the

totality of the record, that any error in playing or admitting it was harmless. See Crim.R. 52(A)

(stating “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded”).

       {¶27} Given the arguments made on appeal, even absent the playing or admittance of

the video, the jury still would have heard the extensive testimony about the video and its

contents. In light of that other evidence that was admitted and not challenged on appeal, we

cannot conclude that Mr. Quinn was prejudiced by the playing and admission of the video.

Further, after weighing the remaining evidence, this Court concludes there was evidence before

the jury which established beyond a reasonable doubt Mr. Quinn’s guilt. See Morris at ¶ 33.
                                                12


       {¶28} Accordingly, Mr. Quinn’s first and second assignments of error are overruled.

                             ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO
       COMMIT MULTIPLE ACTS OF MISCONDUCT, THEREBY DEPRIVING
       DEFENDANT OF A FAIR TRIAL.

       {¶29} In his third assignment of error, Mr. Quinn argues that he was deprived of a fair

trial due to prosecutorial misconduct when the prosecutor made various statements: “1)

discussing two different irrelevant alleged prior bad acts, 2) improperly bolstering the credibility

of the complaining witness, 3) introducing facts not in evidence through questions, and 4)

repeatedly referring to [S.L.’s] boyfriend (“C.R.”) as “Brandon,” thereby confusing him with

[Mr.] Quinn.” We disagree.

       {¶30} “A prosecutor is at liberty to prosecute with earnestness and vigor, striking hard

blows, but may not strike foul ones.” State v. Smith, 14 Ohio St.3d 13, 13 (1984). Prosecutors

must avoid insinuations and assertions calculated to mislead, and they may not allude to matters

not supported by admissible evidence. State v. Lott, 51 Ohio St.3d 160, 166 (1990), citing Smith

at 14. “In deciding whether a prosecutor’s conduct rises to the level of prosecutorial misconduct,

a court determines if the prosecutor’s actions were improper, and, if so, whether the defendant’s

substantial rights were actually prejudiced.” State v. Moreland, 9th Dist. Summit No. 27910,

2016-Ohio-7588, ¶ 22. See also State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 140.

Thus, “‘a judgment may only be reversed for prosecutorial misconduct when the improper

conduct deprives the defendant of a fair trial.’” Id., quoting State v. Knight, 9th Dist. Lorain No.

03CA008239, 2004-Ohio-1227, ¶ 6. In other words, “[t]he defendant must show that, but for the

prosecutor’s misconduct, the trier of fact would not have convicted him.” Id. “A reviewing

court is to consider the trial record as a whole, and is to ignore harmless errors ‘including most
                                                13


constitutional violations.’” State v. Overholt, 9th Dist. Medina No. 02CA0108-M, 2003-Ohio-

3500, ¶ 46, quoting Lott at 166. “The touchstone of the analysis ‘is the fairness of the trial, not

the culpability of the prosecutor.’” State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 140,

quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).

       {¶31} Mr. Quinn first alleges misconduct occurred when the prosecutor discussed “two

different irrelevant alleged prior bad acts[.]” The first was the cell phone video recording of S.L.

in her bedroom, which he claims was both irrelevant to the charged offenses and unfairly

prejudicial. We have already addressed the cell phone incident above, determined that the

playing of the video and its introduction into evidence was harmless, and likewise decline to

engage in any further analysis of it.

       {¶32} He next challenges the prosecutor’s remarks during opening statements

concerning Mr. Quinn’s prior, alleged rape of S.L. during an incident in Hocking Hills as highly

prejudicial. It is axiomatic that remarks made by counsel in opening statements are not evidence.

State v. Carr, 9th Dist. Summit No. 26661, 2014-Ohio-806, ¶ 16; State v. Frazier, 73 Ohio St.3d

323, 338 (1995). “The purpose of opening statements is to inform the jury of the nature of the

case and to outline the facts that each party will attempt to prove.” State v. Overholt, 9th Dist.

Medina No. 2905-M, 1999 WL 635717, *8 (Aug. 18, 1999), citing Maggio v. Cleveland, 151

Ohio St. 136 (1949), paragraph one of the syllabus. “During opening statements, counsel is

accorded latitude and allowed ‘fair comment’ on the facts to be presented at trial.” Diar at ¶ 145.

Generally, a statement made by counsel of the evidence that he expects to introduce is not

reversible error unless it appears that counsel made the statement in bad faith, even if it turned

out that such evidence was incompetent. State v. Riffle, 9th Dist. Medina No. 09CA0056-M,

2010-Ohio-2812, ¶ 10.
                                                14


       {¶33} Mr. Quinn objected to the following remarks during the prosecutor’s opening

statement:

       [S.L.] will tell you, I believe, of two other incidents, one that happened outside of
       this jurisdiction down in Hocking Hills when they were at a family vacation.

       [S.L.] got particularly badly sunburned, and everybody else went on a hike - -

       ***

       Family members went on a hike. She stays back in bed and she’s badly
       sunburned – this is during the same period of time, there’s even a picture that
       exists from that vacation – and that Mr. Quinn stayed back, unbeknownst to her,
       got in bed with her, again as she was resting and sleeping, and actually, in that
       incident, inserted his fingers into her vagina.

       {¶34} Mr. Quinn argues that these comments “unfairly aroused a feeling of antipathy

against [him] in the jury[,]” and although testimony regarding the incident was later deemed

inadmissible by the trial court, “[t]he bell could not be ‘un-rung’ * * *.” He further speculates

that the prosecutor made these remarks in bad faith by claiming “the prosecutor had every reason

to know that evidence regarding this incident would not be admissible[,]” yet he offers no

explanation or support for this conclusory statement. Although the trial court did, in fact, later

determine that any evidence of the Hocking Hills incident was inadmissible, this eventuality was

not made apparent until during S.L.’s testimony, well after opening statements had concluded.

See Riffle at ¶ 10. We therefore conclude that the prosecutor’s reference to S.L.’s expected

testimony regarding the Hocking Hills incident was not made in bad faith and, consequently,

cannot be the basis for a prosecutorial misconduct claim. See id.

       {¶35} Mr. Quinn also objected at trial to the following statements made by the

prosecutor during his cross-examination of S.L.’s mother (“B.Q.”):

       (1) “Yes, because of the events that were going on. She was being molested by
       your boyfriend, and then she gets recorded and mom doesn’t believe her. Are
                                                15


       those the events you’re talking about that led to her leaving the house at seventeen
       years old?”

       (2) “Well, maybe. Give me an example, because apparently, it’s not molesting
       your daughter.”

(Emphasis added.).

       {¶36} “Cross-examination shall be permitted on all relevant matters and matters

affecting credibility.” Evid.R. 611(B). “[A] cross-examiner may ask a question if the examiner

has a good-faith belief that a factual predicate for the question exists.” State v. Gillard, 40 Ohio

St.3d 226, 231 (1988). See also State v. Feathers, 9th Dist. Summit No. 19837, 2000 WL

1675038, *1 (Nov. 8, 2000). Here, prior to B.Q.’s testimony, S.L. testified in great detail as to

the cell phone incident and also explained in graphic detail how she “was being molested when

[she] was woken up for school.” Because the prosecutor’s statements while cross-examining

B.Q. were supported by evidence already introduced at trial, we determine that they were neither

improper nor prejudicial. See State v. Cleveland, 9th Dist. Lorain No. 96CA006357, 1997 WL

104653, *4 (Mar. 5, 1997).

       {¶37} In the remainder of this assignment of error, Mr. Quinn challenges a multitude of

other statements made by the prosecutor throughout the trial, and argues that the prosecutor

committed misconduct by: (1) improperly bolstering S.L.’s credibility during direct examination;

(2) presenting “facts” to the jury under the guise of questioning a witness; and (3) improperly

confusing S.L.’s boyfriend (“C.R.”) with Mr. Quinn during his opening statement. We need not

address the merits of these arguments, however, because Mr. Quinn never objected to any of

these other statements at trial and has, thus, forfeited all but plain error on appeal. See State v.

Dawson, 9th Dist. Summit No. 28311, 2017-Ohio-2833, ¶ 36; State v. Anderson, 9th Dist.

Wayne No. 14AP0054, 2016-Ohio-7814, ¶ 12. Mr. Quinn has not raised plain error on appeal,
                                                16


and “[t]his Court has repeatedly noted that it will not sua sponte fashion an unraised plain error

argument and then address it.” State v. Thomas, 9th Dist. Summit No. 27580, 2015-Ohio-5247,

¶ 9.

       {¶38} Mr. Quinn’s third assignment of error is overruled.

                                                III.

       {¶39} Mr. Quinn’s assignments of error are all overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT
                                               17



CARR, J.
HENSAL, J.
CONCUR.

TEODOSIO, P. J.
DISSENTING.

       {¶40} Because I would conclude that the impermissible introduction of other acts

evidence to wit: the cell phone video was not harmless error in this matter, and would

consequently reverse and remand the cause for a new trial, I must respectfully dissent.

       {¶41} “A hallmark of the American criminal justice system is the principle that proof

that the accused committed a crime other than the one for which he is on trial is not admissible

when its sole purpose is to show the accused’s propensity or inclination to commit crime.” State

v. Curry, 43 Ohio St.2d 66, 68 (1975).        The improper admission of other acts evidence

necessitates reversal when there is a reasonable possibility that the evidence contributed to the

accused’s conviction. State v. Tran, 9th Dist. Summit No. 22910, 2006-Ohio-4463, ¶ 47, citing

State v. Treesh, 90 Ohio St.3d 460, 483 (2001).           Courts conduct a three-step analysis in

determining whether to admit other acts evidence:

       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. Evid.R. 401. The next 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 the other acts evidence is presented for a legitimate purpose,
       such as those stated in Evid.R. 404(B). The third step is to consider whether the
       probative value of the other acts evidence is substantially outweighed by the
       danger of unfair prejudice.

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20. In applying the three-step analysis

outlined in Williams to the facts in this case, I would conclude that the highly prejudicial other

acts video was improperly played and admitted at trial.
                                                18


       {¶42} I would further conclude that the trial court’s error in permitting the video to be

played and entered into evidence was not harmless. An error in improperly admitting other acts

evidence may only be deemed harmless where there is overwhelming evidence of guilt. See

State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, ¶ 191. “[I]n determining whether to grant a

new trial as a result of the erroneous admission of evidence under Evid.R. 404(B), an appellate

court must consider both the impact of the offending evidence on the verdict and the strength of

the remaining evidence after the tainted evidence is removed from the record.” State v. Morris,

141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 33. While I agree with the majority that the State

presented sufficient evidence to convict Mr. Quinn of all eleven counts of GSI, I would

cautiously stop short of characterizing it as overwhelming evidence of guilt. Allegations of the

repeated sexual abuse of a child are no doubt serious and disturbing, but the State’s case in this

matter turned predominantly on a determination of S.L.’s credibility, as her testimony was the

only evidence presented that Mr. Quinn committed countless acts of GSI. In a case such as this

one, where credibility is paramount, I would refrain from concluding that the erroneous

admission of highly prejudicial other acts evidence is harmless. See State v. Hart, 8th Dist.

Cuyahoga No. 105673, 2018-Ohio-3272, ¶ 42.

       {¶43} A vast majority of the State’s case in chief focused on the unrelated

voyeurism/cell phone incident, to a point where the GSI charges became a secondary issue. The

State did not file any notice of intent to introduce other acts evidence and offered no clear reason

or exception at trial under Evid.R. 404(B) or R.C. 2945.59 why the video should be either

played for the jury or admitted into evidence. The State conceded Mr. Quinn was facing no

charges related to the cell phone incident. As such, it appears to me that the cell phone video

was introduced for the very reason other acts evidence is generally impermissible: to improperly
                                                19


show a propensity or inclination to commit crime. See Curry at 68. The inference that deeply

permeated the entire trial was clear: if Mr. Quinn filmed S.L. in a state of undress, then he must

have also molested her. The prosecutor, in fact, told the jury during closing arguments that S.L.

considered the video as “proof” of her molestation and said all the jury had to do was “just watch

it.” The jury did, in fact, review the video again during its deliberations as the prosecutor had

requested.

       {¶44} A critical, yet overlooked, factor is that no limiting instruction was provided to

the jury regarding the video either during the trial or at the close of all evidence. See State v.

Wheeler, 9th Dist. Summit No. 27643, 2016-Ohio-15, ¶ 8 (“A limiting instruction serves to

minimize the likelihood that evidence of other acts will result in undue prejudice.”). The

complete lack of a limiting instruction to help guide the jury’s review of the video heightened the

risk of prejudice, instead leaving the jury to its own devices to consider the video however it saw

fit. See State v. Hartman, 8th Dist. Cuyahoga No. 105159, 2018-Ohio-2641, ¶ 43-44. The

majority perceives the viewing and admission of the video as harmless in light of the remaining

evidence presented. Contrarily, I am hesitant to presume that exposure to what is allegedly a

step-father’s voyeuristic video of his young step-daughter in a state of undress, without any

guidance from the trial court, would have little to no prejudicial impact on a jury’s decision as to

whether that same man molested the young child beyond a reasonable doubt.

       {¶45} Despite the tremendously disturbing nature of Mr. Quinn’s alleged crimes in this

matter, I cannot in good conscience ignore the highly prejudicial effect the playing of the cell

phone video and its admission into evidence had on his trial and convictions. In the absence of

overwhelming evidence of guilt, I cannot agree that it was harmless error to show the jury this

unsettling and emotionally inflammatory video of other acts not at issue in Mr. Quinn’s GSI trial.
                                               20


The jurors were told the video was “proof” of S.L.’s molestation and were told by the prosecutor

to “just watch it,” which they did. In my opinion, a “substantial danger” existed that this video

“tipped the scale toward conviction.” See State v. Patterson, 5th Dist. Stark No. 2017CA00022,

2017-Ohio-8970, ¶ 38.

       {¶46} While I certainly recognize and can appreciate the highly sensitive and troubling

nature of the allegations in this case, the law nonetheless demands that Mr. Quinn be granted a

new trial. See Tran at ¶ 47, citing Treesh at 483. “There is always a temptation in criminal cases

to let the end justify the means, but as guardians of the Constitution, we must resist that

temptation.” State v. Gardner, 135 Ohio St.3d 99, 2012-Ohio-5683, ¶ 24. I fear that the

majority’s decision today will be misconstrued and cited in the future as precedent by

prosecutors and courts alike in unfortunate applications of “what Professor Irving Younger once

called ‘the guilty SOB theory of admissibility.’ In other words, if you need the evidence to get a

conviction-let it in.” State v. Miller, 43 Ohio App.3d 44, 48 (9th Dist.1988) (Quillin, P. J.,

concurring).

       {¶47} I respectfully dissent.


APPEARANCES:

THOMAS L. ERB, JR., Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
