[Cite as State v. Fetherolf, 2017-Ohio-1316.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 14-16-10

        v.

MICHAEL JASON FETHEROLF,                                   OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 14-16-11

        v.

MICHAEL JASON FETHEROLF,                                   OPINION

        DEFENDANT-APPELLANT.


                  Appeals from Union County Common Pleas Court
                             Trial Court No. 13-CR-0207

                                      Judgments Affirmed

                              Date of Decision: April 10, 2017


APPEARANCES:

        Carrie Wood for Appellant

        Terry L. Hord for Appellee
Case Nos. 14-16-10, 14-16-11


SHAW, J.

        {¶1} Defendant-appellant, Michael J. Fetherolf (“Fetherolf”), brings this

appeal from the April 6, 2016, judgment of the Union County Common Pleas Court

sentencing Fetherolf to serve 25 years to life in prison after Fetherolf was convicted

in a jury trial of Rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first

degree, and Intimidation of a Witness in violation of R.C. 2921.04(B), a felony of

the third degree.1 On appeal, Fetherolf argues that the trial court erred by allowing

multiple witnesses to testify to the veracity of statements made by the victim, A.C.,

that the trial court erred by failing to exclude details of Fetherolf’s prior conviction

since he did not testify at trial, that the trial court erred by allowing “other acts”

evidence to be presented that had “no bearing on any fact of consequence,” that the

trial court erred by denying Fetherolf’s motion for a new trial based on his claim

that the State failed to disclose a conviction of one of the State’s witnesses, and that

the prosecutor committed misconduct that deprived Fetherolf of a fair trial.

                               Facts and Procedural History

        {¶2} Fetherolf was originally indicted on November 19, 2013, for Rape with

the specification that the victim was less than ten years of age in violation of R.C.

2907.02(A)(1)(b), a felony of the first degree, Gross Sexual Imposition in violation

of R.C. 2907.05(B), a felony of the third degree, and Sexual Battery in violation of


1
 Fetherolf was also found guilty of Gross Sexual Imposition, but that count was merged with the Rape
conviction for purposes of sentencing.

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R.C. 2907.03(A)(5), a felony of the second degree. It was alleged that on or about

September 22, 2013, Fetherolf engaged in sexual conduct with his daughter, A.C.,

who was born in March of 2006. According to the bill of particulars it was alleged

that Fetherolf digitally penetrated A.C.’s vagina.

       {¶3} On January 23, 2015, a superseding indictment was filed against

Fetherolf.   The superseding indictment alleged 33 counts against Fetherolf,

beginning with the same allegation of Rape previously indicted (Count 1) and the

same allegation of Gross Sexual Imposition previously indicted (Count 2). The

superseding indictment then also alleged fifteen counts of Rape in violation of R.C.

2907.02(A)(1)(b), all felonies of the first degree (Counts 3, 5, 7, 9, 11, 13, 15, 17,

19, 21, 23, 25, 27, 29, 31), fifteen counts of Gross Sexual Imposition in violation of

R.C. 2907.05(A)(4), all felonies of the third degree (Counts 4, 6, 8, 10, 12, 14, 16,

18, 20, 22, 24, 26, 28, 30, 32), and one count of Intimidation of an Attorney, Victim

or Witness in a Criminal Case in violation of R.C. 2921.04(B), a felony of the third

degree (Count 33). The new Rape and Gross Sexual Imposition charges were

related to similar allegations of digital penetration that Fetherolf allegedly

perpetrated against A.C. when Fetherolf had physical custody of A.C. on weekends

between March of 2011 and September of 2013. The Intimidation of a Witness

charge alleged that Fetherolf threatened to spank A.C. if she told anyone about the




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Case Nos. 14-16-10, 14-16-11


alleged incidents, and that she would be in trouble if she told anyone. Fetherolf pled

not guilty to the charges.

           {¶4} On March 7-10, 2016, a jury trial was held.2                              Testimony at trial

indicated that A.C. was born in March of 2006 to mother Heather C., but it was not

determined that Fetherolf was A.C.’s father until a DNA test was done when A.C.

was approximately two and a half years old. After Fetherolf was determined to be

A.C.’s father, Heather testified that she contacted Fetherolf and asked if he wanted

to be involved in A.C.’s life. Fetherolf indicated that he did and Heather began

providing Fetherolf with visitation.3 Heather testified that as time passed she started

allowing overnight visits between A.C. and Fetherolf and that those overnight visits

grew into every other weekend.

           {¶5} Heather testified that on Friday September 20, 2013, she dropped A.C.

off with Fetherolf for his weekend visitation with the intent being that Fetherolf or

his grandmother would return A.C. on Sunday. Testimony indicated that Fetherolf

was staying in his grandmother’s trailer at the time and that he primarily exercised

his visitation with A.C. at the trailer.

           {¶6} Heather indicated that she was contacted by Fetherolf on Saturday

September 21st and Fetherolf asked her to drop off extra clothes for A.C., which

she did. Then, Heather testified that she received a text message from Fetherolf on


2
    A visiting judge presided over the trial.
3
    Heather testified that all visitation was established outside of court proceedings.

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Case Nos. 14-16-10, 14-16-11


Sunday September 22, 2013, stating that his grandmother would bring A.C. home

on Monday morning instead of Sunday. On Monday morning, Heather testified that

she received a message from Fetherolf wherein he stated that he woke up late and

that he or his grandmother would bring A.C. home that night or take her directly to

school on Tuesday, September 24, 2013. Heather testified that she was upset with

the situation.

       {¶7} Heather indicated that the next morning, Tuesday, she received a call

from the school inquiring about A.C. because she was not at school. Heather then

began trying to contact Fetherolf. Heather testified that when she could not get in

contact with Fetherolf, she called the police. The police located Fetherolf that day

and facilitated A.C.’s return to Heather.

       {¶8} After A.C. was returned to her, Heather took A.C. home. Heather

commented that A.C. was dirty and looked like she needed a bath. Heather indicated

that it was around lunchtime and A.C. was hungry so Heather made her food.

Heather testified that A.C. looked “down” but was responsive. Heather testified

that she asked A.C. about her weekend and eventually asked if A.C. got in trouble

at Fetherolf’s. Heather testified that A.C. put her head down, which was unusual

behavior for A.C.

       {¶9} Heather testified that A.C. asked to take her lunch upstairs to her room.

Heather indicated that it was fine and permitted A.C. to go upstairs. Heather


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testified that shortly thereafter, Heather’s sister Kara went upstairs to talk to A.C.

and a few minutes later Kara came down, “pale” with “a look of shock” and said

that Heather needed to talk to A.C. (March 7, 2016, Tr. at 196).

          {¶10} Heather testified that she then talked to her daughter and asked what

was wrong repeatedly and Heather testified that A.C. initially told her that she did

not want to say anything because she was afraid of being spanked or getting in

trouble. Heather testified that she conveyed to A.C. that she was not going to get

into trouble and that A.C. then told her that Fetherolf touched her “in her butterfly,”

and indicated her vagina. (Id. at 197). Heather testified that she asked A.C. what

she meant and A.C. demonstrated with her hand.

          She put her palm up. She took two fingers up and started going
          up and down like this on her palm and then she stuck one finger
          inside of her palm. And I asked her what she meant by that and
          she said that he had stuck a finger inside of her.

(Id.) Heather testified that A.C. also told her that Fetherolf threatened to spank A.C.

if A.C. did not allow him to touch her “butterfly.” (March 7, 2016, Tr. at 197).

Heather testified that A.C. indicated that similar acts had been going on since A.C.

was between four and five years old. Kara, who had already talked to A.C. at that

point, testified that A.C. had told her essentially the same story, that Fetherolf

touched her in her “no-no” parts, indicating her vaginal area. (March 8, 2016, Tr.

at 16).



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         {¶11} Heather testified that after hearing A.C.’s story she was upset and she

went downstairs to make some phone calls. Kara took A.C. to a nearby park for 20-

30 minutes while Heather made the calls. Heather testified that she called her

mother, Linda, who came to the house. Linda also spoke with A.C. and Linda

testified that A.C. revealed to her that Fetherolf had “stuck his fingers up in [her]”

and that it had been going on since A.C. was four or five years old. (Id. at 43).

According to Linda, A.C. also said that she did not tell anyone because her father

had threatened to spank her if she did.4

         {¶12} After Heather finished making phone calls to, inter alia, her

pediatrician, A.C. was taken to a nearby hospital and referred to a separate hospital

that could more adequately handle a sexual assault examination. A.C. was then

taken to the emergency room at Nationwide Children’s Hospital by Heather, Kara,

and Kara’s boyfriend.

         {¶13} At the emergency room, A.C. met with a number of medical

professionals including an emergency room physician and a Sexual Assault Nurse

Examiner (“SANE”). A.C. also met with a social worker, Lauren Kato, who took

A.C.’s initial history. A.C. informed the social worker and medical personnel that

Fetherolf had been drinking and had “swirl[ed]” his fingers on her “bad spot.”



4
  Fetherolf’s attorney objected to testimony related to A.C.’s disclosures to Heather, Kara, and Linda. The
trial court overruled these objections stating that they were, inter alia, excited utterances. Fetherolf does not
claim on appeal that it was error for the trial court to permit these particular statements.

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Case Nos. 14-16-10, 14-16-11


(March 8, 2016, Tr. at 109). Kato testified that A.C. indicated that Fetherolf

threatened to spank A.C. if she did not cooperate. Kato testified that A.C.’s

disclosure was consistent with what A.C. had told her mother based on Kato’s

interview with Heather.

        {¶14} Shortly thereafter on the same date, A.C. was physically examined by

Dr. Helen McManus, an emergency room physician. Dr. McManus testified that

she used the initial history provided by Kato to direct her care. Dr. McManus

testified that although she did not find any marks on A.C. the exam was consistent

with an allegation of touching, which would often not leave any marks.5 Dr.

McManus testified that following her examination she concluded that A.C. had been

sexually abused.

        {¶15} In addition to a physical examination of A.C. by Dr. McManus, a rape

kit was performed on A.C. by Teresa Warnimont, a SANE. Warnimont collected

evidence and submitted it to BCI for testing. All swabs of A.C. checking for semen

and amylase were negative. However, DNA testing revealed that in the crotch

portion of A.C.’s underwear a male’s DNA was present, which was consistent with

a sample of Fetherolf’s DNA.6 The DNA analyst testified at trial that the DNA




5
  Dr. McManus noted in her report that “[i]n more than 90% of cases of documented sexual abuse the exam
is normal.” (State’s Ex. 5 p. 4).
6
  “The partial Y-Chromosome DNA profile from the crotch and front panel of the underwear (Item 1.7.1A)
is consistent with Michael Fetherolf.” (State’s Ex. 21). Further, the “estimated frequency 1 in every 4167
male individuals.” (Id.)

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Case Nos. 14-16-10, 14-16-11


present in A.C.’s underwear was more than what she would usually find with simply

touching or handling underwear.

         {¶16} A videotaped deposition of A.C. was played for the jury.7                                The

deposition was dated May 18, 2015, which would have been approximately a year

and a half after the alleged incidents of September 2013. During the deposition,

A.C. often said she did not remember events. She even stated she could not

remember the answers to some questions that she was asked that were totally

unrelated to the events in question.8 A.C. was tearful in the deposition and appeared

reluctant to testify at all. At one point the deposition was stopped because A.C. was

crying and she wanted to see her mother. When the deposition resumed, A.C. said

she had gotten scared. In fact, on multiple occasions A.C. indicated that she was

scared, and she stated that she did not want to talk about Fetherolf because she was

scared. The one emphatic thing A.C. did testify to was that she did not want to see

Fetherolf.9

         {¶17} A.C. never did give an account of what Fetherolf had allegedly done

to her in her deposition. When asked what occurred on the September 2013

weekend in question, she stated that she could not remember. However, when she


7
  The parties stipulated that A.C. was unavailable to testify at trial.
8
  At the beginning of the deposition, the judge presiding over the deposition indicated that he had found A.C.
competent to testify.
9
  Through most of the deposition, A.C. was quiet and reluctant to say anything, answering most questions
with some variation of “I can’t remember.” However, she was very definite in stating that she did not want
to see Fetherolf. She was much louder and emphatic. Heather also testified that since the incident A.C.
wanted nothing to do with her father.

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Case Nos. 14-16-10, 14-16-11


was asked if she thought she had told people what had happened to her, she stated

that she “thought so.” Separately in the deposition she stated that she told her Aunt

Kara “what [her] dad did,” but she never defined what that was.

        {¶18} Dennis Flanagan, a detective with the City of Marysville testified as

to his involvement with this case. He testified that he tried to contact Fetherolf

shortly after the accusations were made to get his side of the story and Fetherolf

called Detective Flanagan one night just after midnight.                   Detective Flanagan

testified that Fetherolf sounded irate and intoxicated. Detective Flanagan testified

that Fetherolf called the allegations against him “bullshit” and stated that he would

come in for an interview. Detective Flanagan testified that Fetherolf never came in

and that Detective Flanagan was eventually contacted months later and informed

that Fetherolf was apprehended elsewhere.

        {¶19} The State also presented the testimony of Fetherolf’s probation officer

and a paramour of Fetherolf’s, Pam Hawkins. Hawkins testified that she left her

husband to be with Fetherolf in the fall of 2013, around the time these allegations

surfaced. Hawkins testified that she thought Fetherolf was on felony probation for

failure to pay child support10 and that she and Fetherolf left Ohio together, at

Fetherolf’s suggestion, to go to New York and Pennsylvania. Hawkins testified that

one evening while with Fetherolf she saw him looking at inappropriate pictures of


10
  Any child support related accusations were not regarding A.C. They involved another child or other
children.

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Case Nos. 14-16-10, 14-16-11


underage girls on a tablet. She also testified that Fetherolf purchased her a wig,

thong and a skirt to dress her up like a “little girl.” (March 8, 2016, Tr. at 137).

       {¶20} Hawkins testified that things soured between her and Fetherolf and she

turned herself in for an outstanding warrant. Hawkins testified that she went to jail

and when she got out she alerted officers to Fetherolf’s location. At that time, she

believed he had an active warrant related to failure to pay child support.

       {¶21} At the conclusion of the State’s case, Fetherolf’s counsel made a

Crim.R. 29 motion for acquittal on all counts. The trial court sustained that motion

with regard to 30 counts of the superseding indictment. Specifically, the trial court

dismissed counts 3-32 of the superseding indictment on the basis that there was

insufficient evidence to support convictions for Rape or GSI for any instances other

than the September 2013 instance after which A.C. promptly disclosed what

happened. The trial court indicated that the other allegations related to incidents

that purportedly occurred between 2011 and 2013 were too indefinite and lacked

sufficient proof to submit to the jury.

       {¶22} The remaining three counts against Fetherolf, Rape, Gross Sexual

Imposition, and Intimidation of a Witness related to the September 2013 incident,

were then submitted to the jury. The jury ultimately found Fetherolf guilty of all

three counts.




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Case Nos. 14-16-10, 14-16-11


       {¶23} Prior to Fetherolf’s sentencing, he filed multiple pro se motions

including a motion for a new trial, which alleged, inter alia, that the State failed to

disclose some prior convictions of one of its witnesses, Pamela Hawkins. At

Fetherolf’s sentencing hearing, the trial court overruled Fetherolf’s new trial

motion, with the exception of his argument that the State failed to disclose some of

the prior convictions of Hawkins. The trial court indicated that it would allow the

State to respond in writing to Fetherolf’s contention and that the trial court would

rule on that issue related to Fetherolf’s motion for a new trial after it received the

State’s response.

       {¶24} As to Fetherolf’s sentencing, the trial court merged Fetherolf’s

convictions for Rape and Gross Sexual Imposition, finding that they were allied

offenses of similar import, and the State elected to proceed to sentence Fetherolf on

the Rape conviction. The trial court then ordered Fetherolf to serve 25 years to life

in prison on the Rape conviction, of which 25 years was a mandatory prison term.

Fetherolf was sentenced to serve 30 months in prison on the Intimidation of a

Witness conviction, concurrent to the Rape sentence.

       {¶25} On April 6, 2016, a judgment entry memorializing Fetherolf’s

sentence was filed. Fetherolf filed a notice of appeal from that judgment.

       {¶26} On April 21, 2016, the State filed a memorandum in opposition to

Fetherolf’s motion for a new trial based on the State allegedly failing to disclose


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Case Nos. 14-16-10, 14-16-11


prior convictions of Hawkins. Fetherolf then filed a pro se response. On May 24,

2016, the trial court filed an entry denying Fetherolf’s motion for a new trial.

Fetherolf filed a notice of appeal from that judgment.

       {¶27} Fetherolf’s appeals from his sentencing entry and from the denial of

his motion for a new trial were consolidated, and he asserts the following

assignments of error for our review.

                            Assignment of Error No. 1
       The trial court erred when it allowed Dr. McManus, S.A.N.E.
       nurse Teresa Warnimont, and Caseworker Kaitlin Ruddy to
       testify to the veracity of A.C.’s statements.

                            Assignment of Error No. 2
       The trial court erred when it failed to exclude: (1) details of Mr.
       Fetherolf’s prior conviction and sentence when he did not testify
       at trial, and (2) other acts evidence which had no bearing on any
       fact of consequence in contravention of Evid.R. 404(B)[.]

                            Assignment of Error No. 3
       The trial court erred when it denied Mr. Fetherolf a new trial
       after the State failed to turn over to defense counsel all of Pamela
       Hawkins’ prior convictions, including a recent conviction for
       falsification.

                           Assignment of Error No. 4
       Michael Fetherolf’s right to a fair trial was violated by repeated
       instances of prosecutorial misconduct and deprived Mr. Fetherolf
       of a fair trial.




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Case Nos. 14-16-10, 14-16-11


                              First Assignment of Error

       {¶28} In his first assignment of error, Fetherolf argues that the trial court

erred by allowing several of the State’s witnesses to provide testimony that he

characterizes as vouching for the veracity of A.C.’s statements.

                                 Standard of Review

       {¶29} We review a trial court’s decision to admit or exclude evidence under

an abuse of discretion standard. State v. Lauf, 3d Dist Putnam No. 12-16-06, 2017-

Ohio-608, ¶ 54, citing State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-

3479, ¶ 13, citing State v. Graham, 58 Ohio St.2d 350 (1979), and State v. Morris,

132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 19. An abuse of discretion constitutes a

decision that is arbitrary, capricious, or grossly unsound. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

       {¶30} However, where Fetherolf did not object to an evidentiary issue, we

review his arguments on appeal for plain error. State v. Mammone, 139 Ohio St.3d

467, 2014-Ohio-1942, ¶ 69, reconsideration denied, 139 Ohio St.3d 1487, 2014-

Ohio-3195, and cert. denied, 135 S.Ct. 959 (2015). We take notice of plain error

“with the utmost caution, under exceptional circumstances and only to prevent a

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of

the syllabus. To prevail under plain error, Fetherolf must show that an error

occurred, that the error was plain, and that but for the error, the outcome of the trial


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clearly would have been otherwise. Mammone at ¶ 69, citing State v. Barnes, 94

Ohio St.3d 21, 27 (2002).

                             Alleged Errors and Analysis

       {¶31} On appeal, Fetherolf argues that several of the State’s witnesses

testified to their opinion of the veracity of A.C.’s statements. Specifically, Fetherolf

contends that the emergency room physician, Dr. McManus, and the SANE, Teresa

Warnimont testified that A.C. was credible and that such testimony was improper.

Notably, Fetherolf acknowledges in his brief that he did not object to these

purportedly erroneous statements at the trial court level, and thus we review their

admissibility for plain error.

       {¶32} It is apparent from a review of the record that Fetherolf

mischaracterizes the testimony in the record on appeal. For instance, in his brief he

contends that “[b]oth Dr. McManus and [the SANE] testif[ied] that, in their expert

opinion, A.C. and her mother are credible.” (Appt.’s Br. at 16). He also argues that

Detective Flanagan and Kaitlyn Ruddy, an intake caseworker at the department of

job and family services, testified that that A.C. was credible. These claims are

simply inaccurate and do not reflect the testimony. There was testimony from some

of these witnesses that A.C. and her mother were consistent in their statements, but

these witnesses never testified specifically that A.C. was credible.




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       {¶33} Fetherolf seems to contend that because these witnesses testified that

A.C.’s statements were consistent the witnesses were effectively testifying that A.C.

was credible. Fetherolf seeks this Court to essentially make a ruling that a witness

cannot testify that a statement is consistent because it implies that the statement is

credible.   However, a statement could be consistent and still be a complete

fabrication. Whether a statement being consistent makes it more or less credible is

a factual determination to be made by the finder-of-fact. Thus we do not find any

of the witnesses’ statements related to any consistency of A.C.’s disclosures to be

error, let alone plain error.

       {¶34} Nevertheless, Fetherolf does point us to one specific incident in the

testimony of Teresa Warnimont, the SANE, wherein Warnimont arguably went

beyond testifying that A.C.’s statements were consistent. That segment, cited by

Fetherolf, reads as follows.

       Q [Prosecutor]: We have just gone through, basically, what you
       did at Children’s Hospital on September 24th of 2013 for the Rape
       kit. Right?

       A [Warnimont]: Yes.

       Q: When you are doing that work, do you specifically look for
       items of interest?

       A: Yes, we would look for any red marks or anything unusual
       on the patient’s body.




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Case Nos. 14-16-10, 14-16-11


       Q: If, upon your examination, you do not see an indication of
       any type of injury or trauma to the vaginal area, does that rule
       out whether or not there’s been sexual abuse?

       A:   No, it does not.

       Q: Based on your training, experience and education, why is
       that?

       A: The tissue in the ano-genital area is very vascularized, so it
       heals very easily. It, also, is very elastic, so it stretches easy. It is
       not uncommon to have no findings.

       Q: Based on your training, education and experience, what have
       you learned about child disclosure in these type of cases?

       A: That what they say happened is what happened and we treat
       them and give them the support that they need after the
       disclosure.

       Q: That’s how you handle them?

       A:   Correct.

(March 9, 2016, Tr. at 33-34).

       {¶35} Fetherolf argues that the preceding statement wherein the SANE

testified that “what they say happened is what happened” constituted improper

vouching for the victim’s credibility. Contrary to Fetherolf’s argument it seems that

the SANE may have been merely saying that she “handled” the allegations for

purposes of examination as though what the child said happened is what happened.

       {¶36} However, to the extent that the SANE was testifying that all children,

including A.C., are always telling the truth when they disclose, it would be an overly


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broad and likely improper statement.         Nevertheless, even assuming that the

preceding testimony of the SANE was error and should not have been introduced,

we cannot find that it was plain error in this instance.

       {¶37} In this case the consistent statements of A.C. were corroborated by the

DNA evidence. The jury was also able to see A.C.’s deposition and at least draw

inferences from A.C.’s demeanor as to whether she may have been the victim of

sexual abuse or not. We simply cannot find that even if we read the SANE’s isolated

statement in the worst possible light that it was so egregious that it rose to the level

of plain error or that without the statement the outcome of the trial would have been

different. Therefore, we do not find Fetherolf’s arguments well-taken, and his first

assignment of error is overruled.

                             Second Assignment of Error

       {¶38} In Fetherolf’s second assignment of error, he argues that the trial court

erred by permitting “other acts” evidence that he contends had no bearing on any

fact of consequence, and that the trial court erred by failing to exclude details of

Fetherolf’s prior conviction and sentence when he did not testify.

                                 Standard of Review

       {¶39} “ ‘The admission of * * * [other-acts] evidence lies within the broad

discretion of the trial court, and a reviewing court should not disturb evidentiary

decisions in the absence of an abuse of discretion that created material prejudice.’ ”


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State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14, quoting State v. Diar,

120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 66. Under an abuse of discretion review,

“[i]t is not sufficient for an appellate court to determine that a trial court abused its

discretion simply because the appellate court might not have reached the same

conclusion or is, itself, less persuaded by the trial court’s reasoning process than by

the countervailing arguments.” Morris at ¶ 14, citing AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). An

abuse of discretion standard is a deferential review. Id.

                                “Other Acts” Evidence

       {¶40} The admission of “other acts” evidence is governed in part by Evid.R.

404(B), which reads,

       (B) Other Crimes, Wrongs or Acts. 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. In criminal cases, the
       proponent of evidence to be offered under this rule shall provide
       reasonable notice in advance of trial, or during trial if the court
       excuses pretrial notice on good cause shown, of the general nature
       of any such evidence it intends to introduce at trial.

       {¶41} In this case, Fetherolf contends that the trial court erred by allowing

Pamela Hawkins, Fetherolf’s former paramour, to testify regarding consensual

sexual acts that occurred between them, which were unrelated to the charged crimes,



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thus constituting impermissible “other acts” evidence. In particular, Fetherolf

argues that it was error to allow a portion of the following testimony.

       Q [Prosecutor]: When you were with [Fetherolf] during this time,
       did you see him on the computer?

       A [Hawkins]: He was on my Tablet.

       Q: Your Tablet?

       A:   Yes, and my cell phone.

       Q: Did you see anything on your Tablet that concerned you?

       [Defense Counsel]: Objection, Your Honor.

       THE COURT: Overruled. I’m going to permit this witness to
       testify to certain matters that appear to be other acts that the
       defendant was allegedly involved in and I’m not going to permit
       this testimony to be introduced to prove the character of the
       defendant or he acted in conformity with character but it’s being
       introduced for the sole purpose to prove his motive, his
       opportunity, his intent, his preparation, plan or knowledge or
       identity [sic].

            So, it is only going to be used for that purpose, alone, and not
       to prove his character. Go ahead.

       [Prosecutor]: Thank you, Your Honor.

       Q: What was it that you saw on your Tablet?

       A: Um, this was after we left Debbie and them’s place. We went
       and stayed at a motel there in Marion and – this is hard for me to
       say –[Fetherolf] wanted to go to Wal-Mart for me to –

       Q: Let’s talk about – or are you talking about the Tablet now?

       A:   Yes.

                                        -20-
Case Nos. 14-16-10, 14-16-11



      Q: Okay.

      A: [Fetherolf] was looking on the Tablet at some young girls.
      I’m not going to say they were – I’m going to say between 13 and
      younger. Some, maybe, 15 and younger and it was some
      unappropriate (sic) pictures that nobody should be looking at and
      he just asked me what I thought it would be like to be with a young
      girl like that and I just, at the time, it didn’t really register because
      I was, you know, drinking a lot at the time and it just didn’t
      register how he was acting and how he was talking.

      Q: And then after that, did he – did you go somewhere?

      A: He wanted to go to Wal-Mart. Um, he had some money sent
      to him by Western Union from his mother * * * and we were going
      to go and get a 24 pack of Busch beer and he started going over to
      where I was getting some potato chips and things and then I was
      walking around getting ready to go to the register and I looked
      over and he was over by the little girl’s, teenage girl’s clothing and
      I thought – I went over and asked him, what are you doing? And
      he said, oh, I want to get – what size –

      [Defense Counsel]: Objection, Your Honor.

      A:   – what size do you think –

      THE COURT: Okay, overruled.

      Q: Go ahead.

      THE COURT: Again, the same admonition. It’s not to prove
      character. It’s to prove the other things I already mentioned to
      you. Go ahead.

      A: Sorry. He wanted to know what size I would wear in thong
      underwear and asked me where the wigs would be at and I said,
      what are you talking about? And he said, well, I want you to dress
      up as a little girl tonight for me. Okay, you know, I didn’t know
      what to think of that but he got a blonde wig, blue thong

                                        -21-
Case Nos. 14-16-10, 14-16-11


         underwear. Got me a strapless bra-shirt kind of thing and, like,
         a little mini skirt kind of thing and I wore it for him that night.

         Q: Did this happen more than one time?

         A:    It happened three times.

         Q: And, I mean, not that you went to the store but you wore it
         three different times?

         A:    I wore it twice. He wore it once.

(March 8, 2016, Tr. at 135-137).11

         {¶42} Fetherolf contends that the preceding testimony related to consensual

sexual acts between himself and Hawkins, both adults, should have had no bearing

on this Rape trial and that they were improperly admitted. He does not argue on

appeal, as he did at the trial court level, that the testimony related to viewing

inappropriate pictures of underage girls on the tablet was improperly admitted.

         {¶43} In our analysis of the issue raised by Fetherolf, we emphasize that

during Hawkins’ testimony, the trial court interrupted to specifically admonish the

jury, twice, to inform the jury that the testimony could only be used for the purposes

specified in Evid.R. 404(B). Arguably the evidence does touch on some of the

exceptions listed in Evid.R. 404(B), which permits testimony regarding certain other

acts; however, it is undoubtedly prejudicial and it is our conclusion that any

contention that it does fit under the 404(B) exceptions is tenuous at best.


11
  Notably, before Hawkins ever testified, the parties discussed her presumed testimony and its admissibility.
The court heard arguments from both parties and ruled that the testimony was admissible.

                                                   -22-
Case Nos. 14-16-10, 14-16-11


       {¶44} Nevertheless, the trial court is given broad discretion in these matters

and we may not reverse simply because we may have made a different decision.

Even assuming that it was error to allow the introduction of the consensual sexual

acts we cannot find that such an error prejudiced Fetherolf given the evidence

presented at trial, which has been previously referenced. Therefore, Fetherolf’s

argument is not well-taken.

                                  Prior Conviction

       {¶45} Next, Fetherolf contends that the trial court erred by allowing

testimony that Fetherolf was on probation for an unrelated offense when he

allegedly committed the crimes in this case.

       {¶46} In this case, the fact that Fetherolf was on probation when he

committed the Rape of A.C. in September of 2013 was first introduced through the

testimony of Hawkins. Hawkins testified that during the fall of 2013, Fetherolf slept

on the couch at the residence of Hawkins and her husband. Hawkins testified that

she left her husband in the fall of 2013 to be with Fetherolf when Fetherolf suggested

they go for a “change of scenery.” (March 8, 2016, Tr. at 131).

       {¶47} Hawkins testified that Fetherolf informed her that he was on probation

for “felony child support” and that there was probably a warrant out for his arrest.

(Id. at 132). Hawkins testified that she thought that was the reason Fetherolf wanted

to get away. Hawkins testified that she and Fetherolf went to Catskill, New York,


                                        -23-
Case Nos. 14-16-10, 14-16-11


then later to Pennsylvania to a motel, then to Marion, Ohio. Hawkins testified that

at one point Fetherolf took the battery out of his cell phone because “they” were

looking for him and they would not be able to locate where he was at.

       {¶48} Hawkins testified that she was eventually pulled over by the police

while driving alone and was arrested for an active warrant. Hawkins testified that

she did jail time and when she got out she called the police on Fetherolf, thinking

he had a warrant for felony child support. Hawkins testified that she learned at that

time that he was also wanted for Rape.

       {¶49} Later, Fetherolf’s probation for an unrelated offense was mentioned

again at trial when his probation officer, Edward Worley, testified. Worley testified

that he was in charge of “felony non-support child support cases” and that Fetherolf

was his probationer.

       {¶50} During Worley’s testimony, the trial court interrupted sua sponte and

a sidebar conference was held. At that time, the trial court inquired as to the purpose

of Worley’s testimony and the trial court stated, without prompting by the defense

that, “I never would have allowed him to testify in the first place about being on

probation because now this felony conviction is evidence and he hasn’t taken the

stand and that’s not proper.” (March 9, 2016, Tr. at 60).

       {¶51} When Worley’s testimony resumed, he testified that he lost contact

with Fetherolf at some point and that he tried to locate him. Worley testified that


                                         -24-
Case Nos. 14-16-10, 14-16-11


Fetherolf was eventually apprehended and that Fetherolf admitted to his

“violations” and the failure to pay his support. (Id. at 62). Worley then testified

that on the day Fetherolf was arrested, he obtained Fetherolf’s DNA, which was the

standard used to test against the samples taken from A.C.

           {¶52} On appeal, Fetherolf argues that it was error for the trial court to permit

any testimony regarding Fetherolf’s convictions when Fetherolf did not testify.

Fetherolf contends that pursuant to Evid.R. 609(A)(2), evidence of a prior

conviction of a defendant can be introduced, but only if the accused chooses to

testify.

           {¶53} In our own review, we would note that Fetherolf did not object to the

preceding testimony. In fact, even after the trial court noted that it would not have

allowed testimony related to probation, Fetherolf’s trial counsel still did not object

when Worley testified that Fetherolf admitted to violations of his child support.

           {¶54} Even if we assumed that the testimony related to Fetherolf’s prior

conviction was not admissible, it can be argued that it was a valid trial strategy by

the defense to allow in testimony that Fetherolf was on probation for a non-violent

offense. Fetherolf essentially left the Marysville area right after the alleged incident

with A.C. and without another valid reason to leave—such as running from child

support—it could have appeared to the jury that Fetherolf was fleeing from a crime




                                             -25-
Case Nos. 14-16-10, 14-16-11


against A.C. that he knew he had committed. Thus defense counsel may have

wanted this testimony to be introduced for a valid purpose.

       {¶55} Nevertheless, even if we presumed that Fetherolf did object and that

the testimony was not admissible, we cannot find that the mentions of Fetherolf’s

probation and his felony child support so tainted the proceedings that his convictions

must be reversed, particularly given that it had some arguable benefit to the defense.

Moreover, the State’s case was relatively strong insofar as statements of A.C. were

actually corroborated in this case by the DNA evidence. Therefore, Fetherolf’s

argument is not well-taken, and his assignment of error is overruled.

                             Third Assignment of Error

       {¶56} In Fetherolf’s third assignment of error, he argues that the trial court

erred by denying his motion for a new trial. Specifically, Fetherolf contends that

the State committed discovery violations by failing to disclose Pamela Hawkins’s

2015 misdemeanor conviction for falsification.

                                 Standard of Review

       {¶57} In order to reverse a defendant’s conviction specifically due to a

discovery violation, it must be shown that “ ‘(1) the prosecution’s failure to disclose

was a willful violation of the rule; (2) foreknowledge of the information would have

benefited the accused in preparing a defense, and (3) the accused * * * suffered

prejudice.’ ” State v. Wangler, 3d Dist. Allen No. 1–11–18, 2012–Ohio–4878, ¶


                                         -26-
Case Nos. 14-16-10, 14-16-11


108, quoting State v. LaMar, 95 Ohio St.3d 181, 2002–Ohio–2128, ¶ 38, citing State

v. Joseph, 73 Ohio St.3d 450, 458 (1995).

        {¶58} Generally, we apply an abuse of discretion standard to a trial court’s

decision to deny a motion for a new trial. State v. Rice, 11th Dist. Ashtabula No.

2012-A-0062, 2014-Ohio-4285, ¶ 9.

                            Fetherolf’s New Trial Motion

        {¶59} In this case, after the jury found Fetherolf guilty, but before his

sentencing hearing, he filed a number of motions with the trial court, including a

motion for a new trial. In the motion for a new trial, Fetherolf argued, inter alia,

that the State committed a discovery violation by failing to disclose that Pamela

Hawkins had a misdemeanor falsification conviction in 2015.

        {¶60} The State responded to the motion by contending that it had provided

all requisite discovery pursuant to Crim.R. 16.         More specifically, the State

contended that Fetherolf was provided an interview with Hawkins on June 25, 2014,

and that Fetherolf was notified twice in 2015 that the State planned to call Hawkins

as a witness. The State indicated that it provided known relevant convictions at that

time.

        {¶61} In addition, the State argued that during the course of the trial Hawkins

readily testified to being on probation and that she had prior convictions, although

a prior conviction specifically for falsification in 2015 was not mentioned by either


                                         -27-
Case Nos. 14-16-10, 14-16-11


party. The State contended that it was unaware of a misdemeanor conviction for

Hawkins occurring in 2015. Nevertheless, Hawkins did admit to being jailed on an

unrelated charge.

       {¶62} After reading the arguments of the parties, the trial court ultimately

determined that Fetherolf “was not harmed by not having this information and the

State was not responsible for not investigating the prior record more than it did.”

(Doc. No. 213).

                              Arguments and Analysis

       {¶63} On appeal, Fetherolf renews his argument that the State failed to

provide discovery, contending that the State should have known about the late 2015

misdemeanor conviction of Pamela Hawkins and that it should have disclosed the

conviction. Fetherolf argues that Crim.R. 16(B)(2) actually required the State to

disclose such information. Criminal Rule 16(B)(2) requires the State to disclose,

“(2) Criminal records * * * of a witness in the state’s case-in-chief * * *[.]”

       {¶64} By contrast, the State argues that under the Supreme Court of Ohio’s

decision in State v. Petro, 148 Ohio St. 505 (1947), which discussed the granting or

denial of a motion for a new trial based on newly discovered evidence, Fetherolf is

unable to establish that he could not have discovered Hawkins’s falsification




                                         -28-
Case Nos. 14-16-10, 14-16-11


conviction in the exercise of due diligence, precluding his motion for a new trial.12

Further the State argues that it was not required to investigate the criminal record of

Hawkins all the way up to trial, and that the jury was apprised that Hawkins had

prior convictions, if not this specific conviction.

         {¶65} While the better practice may be for the State to continuously update

the criminal records of its witnesses, we cannot find in this case the failure to do so

was reversible error. This case was pending for years before it was brought to trial.

The State indicated that it disclosed the relevant prior convictions that it was aware

of before Hawkins was ever convicted of misdemeanor falsification in a nearby

county. Here there is no indication that the State specifically tried to hide anything

from the defense, particularly since the State actually elicited testimony from

Hawkins that she went to jail and had other convictions.

         {¶66} Finally, given that Hawkins’s credibility was already called into

question at trial by admitting that she had prior convictions, admitting that she had

gone to jail, and admitting that she was drinking to the point of addiction during the

time she spent with Fetherolf, we cannot find that this one additional conviction

would have cast such additional doubt on her credibility that it impacted Fetherolf’s




12
   Fetherolf argues in his reply brief that Petro does not apply in this instance because Petro relates to filing
a motion for a new trial under Crim.R. 33(A)(6), and this case involves a motion for a new trial pursuant to
Crim.R. 33(A)(2). Criminal Rule 33(A)(6) does specifically relate to newly discovered evidence where the
defendant could not obtain it with reasonable diligence, and Criminal Rule 33(A)(2) relates to misconduct
of, inter alia, the prosecuting attorney.

                                                     -29-
Case Nos. 14-16-10, 14-16-11


convictions. Therefore, for all of these reasons, Fetherolf’s third assignment of error

is overruled.

                             Fourth Assignment of Error

       {¶67} In his fourth assignment of error, Fetherolf argues that the prosecutor

committed misconduct that deprived him of a fair trial. Specifically, he contends

that the prosecutor committed misconduct for eliciting the testimony he claims was

erroneous in the first and second assignments of error and that the prosecutor

committed misconduct by failing to disclose Hawkins’s prior conviction for

falsification referenced in the third assignment of error.

                                 Standard of Review

       {¶68} Prosecutorial misconduct is generally not grounds for reversal unless

it so taints the proceedings as to deprive the defendant of a fair trial. State v. Johns,

3d. Dist. Seneca No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25. Where

it is clear beyond a reasonable doubt that the jury would have found the defendant

guilty, even absent the alleged misconduct, the defendant has not been prejudiced,

and his conviction will not be reversed.         See State v. Underwood, 2d Dist.

Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.                  We review allegations of

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d

Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright,

477 U.S. 168, 106 S.Ct. 2464 (1986). “In making this determination, an appellate


                                          -30-
Case Nos. 14-16-10, 14-16-11


court should consider several factors: (1) the nature of the remarks, (2) whether an

objection was made by counsel, (3) whether corrective instructions were given by

the court, and (4) the strength of the evidence against the defendant.” State v.

Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995).

                                      Analysis

       {¶69} Individually, we have found that none of the assigned errors by

Fetherolf were reversible. In this assignment of error, he argues essentially that the

prosecutor’s cumulative actions render his convictions reversible.         Given the

evidence in this case, complete with DNA, and as noted earlier the jury’s ability to

at least observe and evaluate the victim’s demeanor, even if she did not testify

regarding the acts specifically, we cannot find that any errors we have found in this

case cumulatively resulted in reversible error based on prosecutorial misconduct.

This is particularly true given that defense counsel did not object to some of the

testimony, possibly on the basis of trial strategy, and given that some of the

testimony elicited was not objectionable at all.         Thus we cannot find any

prosecutorial misconduct in this case that rises to the level of prejudicial error, and

Fetherolf’s fourth assignment of error is overruled.




                                         -31-
Case Nos. 14-16-10, 14-16-11


                                Conclusion

       {¶70} For the foregoing reasons Fetherolf’s assignments of error are

overruled and the judgments of the Union County Common Pleas Court are

affirmed.

                                                        Judgments Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




                                    -32-
