         [Cite as State v. Webster, 2013-Ohio-4142.]

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




STATE OF OHIO                                      :   APPEAL NO. C-120452
                                                       TRIAL NO. B-1103023
        Plaintiff-Appellee,                        :
                                                           O P I N I O N.
  vs.                                              :

NATHANIEL WEBSTER, JR.,                            :

    Defendant-Appellant.                           :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: September 25, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael
Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michele L. Berry, for Defendant-Appellant.




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


HENDON, Presiding Judge.

       {¶1}    Following a jury trial, defendant-appellant Nathaniel Webster was found

guilty of four counts of unlawful sexual conduct with a minor for conduct occurring in

September, October, November, and December of 2009. He was sentenced to twelve

years’ incarceration, fined $40,000 and ordered to pay his victim $3400 in

restitution.   For the following reasons, we reverse Webster’s conviction on the

December 2009 charge, but affirm the trial court’s judgment in all other respects.

Pretrial Matters

       {¶2}    Webster, a former National Football League (“NFL”) player, was

indicted based on allegations that he had had a sexual relationship with Jordyn

Jackson in 2009 when Jackson was just 15 years old and Webster was 31 years old.

In pertinent part, the indictment alleged that Webster had had vaginal intercourse

with Jackson once in September 2009, once in October 2009, once in November

2009, and once in December 2009, and that he knew that Jackson was 15 years old

at the time or that he had been reckless in that regard. The state’s bill of particulars

stated that, during each of the months listed, Webster had engaged in vaginal

intercourse with Jackson at Webster’s home or in Webster’s car while the car was

parked in parking lots near Webster’s home.

       {¶3}    Webster was also charged with gross sexual imposition and sexual

battery. Prior to trial, Webster moved to sever his gross-sexual-imposition charge

from the remaining counts on the basis that the “rape shield” law applied only to that

count but to none of the others. Webster argued that, absent severance, he would be

unable to introduce evidence pertinent to his defense. The trial court denied the

motion and all the charges were tried together.

                                               2
                       OHIO FIRST DISTRICT COURT OF APPEALS


The State’s Case at Trial

       {¶4}   In 2009, Jackson and Webster lived in the same neighborhood only a

few houses away from each other. Jackson was a 15-year-old high school sophomore.

She lived with her parents and siblings. Webster was married and had several

children. According to Jackson, she began babysitting for Webster’s family in 2009,

and a sexual relationship soon ensued. Webster admitted to police that he had had a

sexual relationship with Jackson. The main issue at trial was the timing of the

alleged sexual activity, and whether it occurred when Jackson was only 15 years old.

Webster’s mens rea as to Jackson’s age was also an issue.

                             The September 2009 Charge

       {¶5}   In regard to the charge that Webster and Jackson had engaged in

sexual intercourse in September 2009, Jackson testified that during that month

while she and a friend, Chloe Kelly, were getting ready to go to a high school football

game, Webster texted Jackson on her cellular telephone asking to see her. Jackson

told Webster that she was at Kelly’s house. Webster picked her up there and drove

Jackson to his house where, according to Jackson, they engaged in sexual intercourse

in his bedroom while Webster’s wife was out. Kelly corroborated details of Jackson’s

testimony regarding the texting and Jackson leaving her house unexpectedly. Kelly

also testified that Jackson had told her in the fall of 2009 that Jackson had been

having a sexual relationship with Webster.

       {¶6}   In further support of the September 2009 charge, the state introduced

cellular telephone records showing that there were 256 telephone calls and text

messages between Jackson’s and Webster’s telephones that month.



                                              3
                      OHIO FIRST DISTRICT COURT OF APPEALS


                          The October 2009 Charge

       {¶7}   Michelle Jackson, Jackson’s mother, testified that she was having a

difficult time contacting her daughter on October 30, 2009. Michelle remembered

the date clearly because it was the day before her premature newborn baby was

coming home from the hospital. Since Michelle could not find Jackson, she decided

to drive around the neighborhood to look for her. Michelle discovered Jackson and

Webster together in Webster’s car as Webster was driving into the subdivision where

they lived. At trial, Jackson testified that she had not had sexual intercourse with

Webster on the evening that her mother had caught her, but that she had had sexual

intercourse with Webster a number of times that month in Webster’s house. Jackson

also testified that Webster had told her that he loved her on October 28, 2009.

Jackson had marked the date on her calendar. The calendar was admitted into

evidence.

       {¶8}   Hue Jackson, Jackson’s father, testified that he telephoned Webster

about this incident, asking if anything inappropriate was occurring between Webster

and Jackson. During this call, Hue told Webster that Jackson was only 15 years old.

Hue explained to the jury that he was sure of the date that he had called Webster

because he had been the head coach of the Oakland Raiders at the time, and he

remembered that his team was playing the Denver Broncos that Sunday. He was also

sure of the timing because his newborn daughter was soon to come home from the

hospital.

       {¶9}   As further evidence that there was a relationship between Webster and

Jackson, the state submitted evidence that Webster and Jackson had had 84 cellular

telephone contacts that month.

                                            4
                        OHIO FIRST DISTRICT COURT OF APPEALS


                             The November 2009 Charge

       {¶10} After Jackson had been caught with Webster in his car, she had been

“grounded.” But, according to Jackson, she continued to see Webster two to three

times a week during November 2009. Jackson testified that she would tell her

mother that she was going jogging in the neighborhood and instead would meet

Webster at a predetermined location. Jackson stated that she and Webster had

sexual intercourse in his car on these occasions while the car was parked in an

apartment building parking lot or in the parking lot of a nearby retirement center.

Jackson also testified that, in November 2009, she had a heart with Webster’s initial

tattooed on her body.

       {¶11} Michelle Jackson testified that, in November 2009, she would

frequently watch her daughter leave to go jogging in the neighborhood, and at the

same time would notice a car leaving Webster’s driveway. Michelle was sure that

these events occurred in November 2009 because she would watch Jackson from a

second floor window as she fed her newborn baby. According to Michelle, her

daughter would be gone 30 to 40 minutes at a time on these occasions, and when she

returned she did not look as if she had been running.

       {¶12} In further support of the November 2009 charge, the state introduced

into evidence telephone records showing 125 telephone contacts between Jackson’s

cellular telephone number and Webster’s cellular telephone number during that

month.

                             The December 2009 Charge

       {¶13} In regard to the December 2009 charge, the state introduced records

showing 117 telephone contacts between Webster’s telephone number and Jackson’s

                                             5
                       OHIO FIRST DISTRICT COURT OF APPEALS


telephone number that month. The state did not present evidence of sexual contact

between Jackson and Webster during this month, and Jackson testified that she

thought that Webster had left town in December 2009.

                        Evidence in Support of all Charges

       {¶14} In support of all of the charges, the state played a series of taped

conversations between Jackson and Webster that Jackson had secretly recorded at

the direction of investigating police officers. In them, Webster references his and

Jackson’s sexual relationship but is vague as to its timing. In one of the calls,

Webster joked with Jackson about how young she was. That call was made in 2011.

       {¶15} Finally, the state produced a taped confession in which Webster

admitted to detective Brian Pitchford that he and Jackson had had a sexual

relationship.   Webster stated that he didn’t know exactly when the relationship

began, but that he remembered Hue Jackson confronting him about being alone with

his daughter in Webster’s car. Webster implied that he had been sexually involved

with Jackson at the time that Hue had called. He also admitted that the relationship

may have started in 2009. And he confessed that he and Jackson would text each

other to arrange their sexual encounters. Webster further confessed that he didn’t

know how old Jackson was at the time that he had started a sexual relationship with

her. He thought that she may have been “15, 14, 16.”

Webster’s Defense

       {¶16} At trial, Webster attempted to discredit the state’s version of events as

it related to the timing of their relationship and also attempted to establish that

Jackson appeared to be older than she was.



                                             6
                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶17} During the cross-examination of the state’s witnesses, the defense

drew out inconsistencies in some of the testimony, and highlighted Jackson’s

inability to remember specific dates. The defense also elicited testimony from

Jackson suggesting that Pitchford may have coached her as to the timing of her

relationship with Webster.     And the defense thoroughly questioned Pitchford

concerning Webster’s confession. Counsel focused on Pitchford’s numerous leading

questions concerning the dates at issue, pointing out that Webster could not

remember specific dates until Pitchford suggested the dates to him.

       {¶18} Several witnesses for the defense were called. Webster’s brothers-in-

law, nicknamed “Redman” and “Bud,” were living with Webster in 2009. They

testified that they and each of their girlfriends had had almost exclusive use of

Webster’s cellular telephone during the months in question. Other witnesses for the

defense corroborated this testimony, stating that it was difficult to reach Webster on

his cellular telephone because he did not answer it. According to Redman and Bud,

Jackson sold marijuana to them on a regular basis and the telephone calls and texts

between Jackson’s cellular telephone and Webster’s cellular telephone often

concerned a marijuana sale.

       {¶19} Witnesses for the defense also testified that Jackson appeared to be

older than 15 years old, claiming that Jackson had been driving in the fall of 2009

and that she had been admitted to a night club after showing identification.

       {¶20} Webster’s wife, Jennifer, testified that Webster was out of town many

times throughout the four-month span at issue. Jennifer believed that Webster had

been having an affair in June 2010 based on how Webster had been acting at the




                                              7
                        OHIO FIRST DISTRICT COURT OF APPEALS


time and also based on certain health issues that Jennifer developed in August 2010

that had required a trip to the gynecologist.

The Specificity and Sufficiency of the State’s Case

       {¶21} In his first and second assignments of error, Webster claims that the

state failed to distinguish specific instances of sexual conduct in its indictment and bill

of particulars, and during trial. This lack of specificity, according to Webster, hampered

his ability to present a defense in violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution. Webster further claims that the state’s

lack of specificity during trial necessarily resulted in a failure of proof and that his

convictions are therefore not supported by sufficient evidence.

       {¶22} Webster cites Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), and

State v. Hemphill, 8th Dist. Cuyahoga No. 85431, 2005-Ohio-3726, in support of his

argument that the state’s case lacked the requisite level of specificity to sustain his

convictions. Both cases are distinguishable from the present one.

                                  Valentine and Hemphill

       {¶23} Defendant Michael Valentine was accused of sexually abusing his step-

daughter. The state charged him with 20 counts of child rape and 20 counts of

felonious sexual penetration of a minor.        The state alleged that all of the counts

occurred over the same ten-month period.             Each rape count in the indictment

contained identical language from the Ohio Revised Code, as did each sexual

penetration count. The state’s bill of particulars alleged that each crime had occurred in

the family home. The Sixth Circuit Court of Appeals determined that the fatal flaw in

the state’s case against Valentine was that, in its indictment and in its evidence

presented at trial, “the prosecution did not attempt to lay out the factual bases of forty

                                                 8
                        OHIO FIRST DISTRICT COURT OF APPEALS


separate incidents that took place.” Valentine at 633. The only evidence presented

concerning the number of sexual encounters between Valentine and his victim came

from the victim herself, who described what a typical abusive encounter consisted of

and then estimated the number of time the behavior had occurred. Id. at 632-633. The

court determined that “[g]iven the way that Valentine was indicted and tried, it would

have been incredibly difficult for the jury to consider each count on its own.” Id. at 633.

As a result, Valentine was tried and convicted in an “all or nothing” fashion. Id. at 634.

       {¶24} In Hemphill, the defendant had been indicted for 99 sexually oriented

offenses. The indictment essentially alleged three types of sexual crimes occurring over

varying timeframes. Hemphill was convicted of 22 counts each of rape and gross sexual

imposition with sexually violent predator specifications, 7 counts each of rape and gross

sexual imposition without specifications, and 29 counts of kidnapping with sexual

motivation specifications. Relying on Valentine, the Eight Appellate District held that

the state had failed to adequately differentiate these counts and, with three exceptions,

failed to subject each count to individual proof. The court found that for the vast

majority of the charges, Hemphill had, like Valentine, been convicted based on a

generic description of sexual acts combined with a numerical estimate of how many

times the act had occurred. Hemphill at ¶ 88-92.

       {¶25} In the present case, the state’s indictment and bill of particulars

sufficiently differentiated among the counts charged. The state, as is permissible, used

the same language in each of its counts of sexual conduct with a minor. But it

distinguished the charges by narrowing the time frame of each. And Webster was given

notice in the bill of particulars that the state was alleging that vaginal intercourse

between Webster and Jackson took place in Webster’s home and in his car while his car


                                                9
                       OHIO FIRST DISTRICT COURT OF APPEALS


was parked in parking lots close to his home.      Alleging one count a month of sexual

conduct with a minor and describing the sexual act and the place where it occurred is a

far cry from the indictments in Hemphill and Valentine that alleged dozens of identical

crimes without significantly further distinguishing factors.    See State v. Ferren 8th

Dist. Cuyahoga No. 95094, 2011-Ohio-3382, ¶ 32.

       {¶26} As to the evidence presented at trial, the state did not try Webster in an

“all or nothing” fashion. Unlike the victims in Hemphill and Valentine, Jackson did not

merely generically describe a sexual act and estimate the number of times that the act

occurred.   Instead, the state presented evidence that tied each count to the relevant

time frame through Jackson’s testimony, her mother’s and father’s testimony, Chloe

Kelly’s testimony, telephone records, and Webster’s confession. This allowed Webster

the chance to defend against each count separately.          And it allowed the jury to

contemplate each count separately.

       {¶27} We therefore hold that Valentine and Hemphill are distinguishable from

the present case and that Webster’s argument has no merit.

                              Sufficiency of the Evidence

       {¶28} Webster’s argument that there was insufficient evidence to sustain his

convictions has some merit. Our standard of review when addressing the sufficiency of

the evidence is whether, after viewing the evidence presented in the light most

favorable to the state, any rational trier of fact could have found all the essential

elements of the crime charged beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶29} The crime of unlawful sexual conduct with a minor is defined in R.C.

2907.04(A). That code section states that “[n]o person who is eighteen years of age or

                                              10
                         OHIO FIRST DISTRICT COURT OF APPEALS


older shall engage in sexual conduct with another, who is not the spouse of the

offender, when the offender knows the other person is thirteen years of age or older but

less than sixteen years of age, or the offender is reckless in that regard.”

       {¶30} As detailed above, Jackson testified that in September 2009, October

2009 and November 2009 she and Webster had engaged in vaginal intercourse. The

state tied each charge to the relevant time frame though Jackson’s testimony, through

the corroborating testimony of Chole Kelly, Michelle and Hue Jackson, and through

Webster’s confession and cellular telephone records. We hold that this evidence was

sufficient and specific enough to sustain Webster’s convictions for the charges tied to

September, October, and November 2009.

       {¶31} We do, however, find a lack of proof in regard to the December 2009

charge. The state presented no evidence that any sexual contact occurred between

Jackson and Webster during that month. The only evidence presented were phone

records showing that contact between Jackson and Webster had continued through

December 2009. This was not sufficient to prove a charge under R.C. 2907.04(A). We

therefore reverse Webster’s conviction for count seven in his indictment that alleged a

violation of R.C. 2907.04(A) occurring in December 2009.

       {¶32} Webster’s first assignment of error is overruled. His second assignment

of error is affirmed in part and overruled in part.

Testimony About Jackson’s Credibility

       {¶33} In his third assignment of error, Webster claims that plain error

occurred when detective Pitchford offered his opinion as to Jackson’s credibility.

Webster alternatively argues that counsel was ineffective for failing to object to this

testimony.

                                                 11
                        OHIO FIRST DISTRICT COURT OF APPEALS


        {¶34} Webster takes issue with the following exchange between the assistant

prosecuting attorney and Pitchford during re-direct examination:

        Q. Now, Detective, Ms. Donovan [defense counsel] asked you whether you

        believed Miss Jackson.

        A. Yes.

        Q.   And do you believe that she was having sexual intercourse with Nate

        Webster when she was 16 years old?

        A. Yes.

        Q. And do you believe that she was having sexual intercourse with him when

        she was 15 years old?

        A. Yes.

        Q. And do you believe possibly she was even having sexual intercourse shortly

        after she turned 17 years old in February 2011?

        A. Yes.

        {¶35} Citing State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989),

Webster claims that Pitchford’s testimony deprived him of a fair trial and that his

convictions must be reversed. In Boston, the Court held that “[a]n expert may not

testify as to the expert’s opinion of the veracity of the statements of a child declarant.”

Id. at syllabus.

        {¶36} Boston is not directly on point since Pitchford was not testifying as an

expert. However, in State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶

122, the Ohio Supreme Court ruled that a police officer’s opinion that an accused is

being untruthful is inadmissible.




                                                12
                        OHIO FIRST DISTRICT COURT OF APPEALS


       {¶37} If we were to review the cited exchange in a vacuum, based on Davis

Webster’s argument might have merit. Webster, however, opened the door to this

testimony and we find no error.

       {¶38} On cross-examination, defense counsel asked Pitchford numerous

questions concerning Jackson’s credibility as it related to the pending charges. Counsel

asked Pitchford (1) whether he believed Jackson when she told him that she had

babysat for the Websters numerous times (Webster’s and Jackson’s relationship

allegedly started when Jackson started babysitting), (2) whether Jackson’s story

concerning her first sexual encounter with Webster “made any sense” to Pitchford, (3)

whether Pitchford was aware that Jackson’s father had called Jackson a “liar” when she

first told him of her sexual relationship with Webster, (4) whether Pitchford believed

one of two conflicting stories Jackson had told concerning whether her mother or

Webster had gone with her to purchase a new cellular telephone that enabled her to

stay in contact with Webster, and (5) whether Pitchford was aware that Jackson’s

former boyfriend thought that Jackson had been lying about some of her allegations

against Webster.

       {¶39} Unlike in Davis and in Boston, where the state had offered testimony

concerning the victim’s truthfulness during its case-in-chief, here the state was

rebutting the defendant’s attempt to establish that Jackson had lied about multiple

aspects of the pending charges. It is well-settled that a prosecutor can respond to issues

raised by an accused. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d

81, ¶ 101; see State v. Kelly, 9th Dist. Summit No. 24660, 2011-Ohio-4999; State v.

Irwin, 7th Dist., Columbiana No. 11-CO-6, 2012 Ohio 2704, ¶ 22.




                                               13
                        OHIO FIRST DISTRICT COURT OF APPEALS


       {¶40} In sum, a defendant cannot fairly expect the state to ignore a line of

attack on a victim’s veracity as it relates to the pending charges. The prosecution was

well within its bounds to ask questions that directly countered the defendant’s stringent

cross-examination of Pitchford. We therefore hold that no error occurred. And since

there was no error, counsel was not ineffective for failing to object. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). Webster’s third assignment of error is

overruled.

Alleged “Ultimate Issue” and “Specialized Meaning” Testimony

       {¶41} In his fourth assignment of error, Webster claims that plain error

occurred when Pitchford improperly “asserted his own conclusions” to the jury that

Jackson’s allegations against Webster constituted the crime of unlawful sexual conduct

with a minor. Because there was no objection to this testimony, we review for plain

error. Crim.R. 52(B). Plain error does not exist unless, “but for the error, the outcome

of the trial clearly would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1982), paragraph two of the syllabus. Notice of plain error “is to be taken

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

manifest miscarriage of justice.”     Id. at paragraph three of the syllabus. In the

alternative, Webster contends that counsel was ineffective for failing to object.

       {¶42} Pitchford was in the midst of explaining to the jury how he became

involved in this case when the following exchange occurred between the assistant

prosecuting attorney and Pitchford:




                                                14
                        OHIO FIRST DISTRICT COURT OF APPEALS


       Q. When you interviewed all the people [Hue, Michelle, and Jordyn Jackson]

       and you determined, I think you told the jury that what she said in terms of the

       unlawful sex with a minor did violate Ohio law?

       A. Yes.

       {¶43} Based on this exchange, Webster asserts that Pitchford actually testified

(1) that sexual intercourse occurred between Jackson and Webster when Jackson was

15 years old, and (2) that Webster had been reckless in regard to Jackson’s age. This,

according to Webster, violated his “Fifth, Sixth, and Fourteenth Amendment rights to

due process, to confront the State’s evidence, and [to] a fair trial wherein an impartial

jury determines whether the evidence presented proves beyond a reasonable doubt all

the essential elements of the crime.” Webster also claims that Pitchford’s testimony

contained “impermissible legal conclusions pertaining to terms that have specialized

meanings within the statute defining the offense in question.” See U.S. v. Nixon, 694

F.3d 623 (6th Cir.2012).

       {¶44} We are not convinced that Webster’s characterization of the cited

question and answer is entirely accurate. Pitchford testified after Jackson had testified.

During defense counsel’s cross-examination of Jackson, the defense attempted to

establish that the police had coached Jackson in regard to the timing of her relationship

with Webster. The passage cited by Webster was a part of a larger exchange during

which the state was attempting to establish that Pitchford’s investigation into Webster’s

case had been fair. This testimony was proper. Cassano, 96 Ohio St.3d at 101, 772

N.E.2d 81.

       {¶45} Even if we were to agree with Webster’s portrayal of this exchange, we

find no grounds for reversal. Webster claims that the error is plain error because “the


                                               15
                        OHIO FIRST DISTRICT COURT OF APPEALS


combination of Pitchford’s and Jordyn’s testimony established the entire case against

Webster.” In this same argument Webster also claims that “the [s]tate’s entire case”

rested on Jackson’s truthfulness. Neither statement is accurate. Chloe Kelly, Hue

Jackson, and Michelle Jackson corroborated the timeframes testified to by Jackson.

And in his confession, Webster admitted that he had had sexual intercourse with

Jackson, possibly in 2009. He also admitted that he and Jackson would text each other

to arrange meetings. The state produced telephone records showing contact between

Webster’s cellular telephone and Jackson’s cellular telephone during the months in

question. Further, Webster stated in his confession that he didn’t know how old

Jackson was when they started having sex, stating that she may have been between 14

and 16 years old.

       {¶46} Consequently, the state’s case was not based solely on Jackson’s and/or

Pitchford’s and Jackson’s testimony. With or without the complained-of statement, the

prosecution presented more than sufficient evidence to convict Webster of unlawful

sexual conduct with a minor. This argument therefore has no merit. And we also find

no ineffective assistance of counsel for counsel’s failure to object to Pitchford’s

testimony. See Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373. Webster’s fourth assignment of error is overruled.

The Rape Shield Law

       {¶47} In his fifth assignment of error, Webster alleges that the trial court

improperly applied R.C. 2907.05(E), the “rape shield law,” in his case.

       {¶48} R.C. 2907.05(E) states:

              Evidence of specific instances of the victim’s sexual activity,

           opinion evidence of the victim’s sexual activity, and reputation

                                               16
                        OHIO FIRST DISTRICT COURT OF APPEALS


           evidence of the victim’s sexual activity shall not be admitted

           under this section unless it involves evidence of the origin of

           semen, pregnancy, or disease, or the victim’s past sexual activity

           with the offender, and only to the extent that the court finds that

           the evidence is material to a fact at issue in the case and that its

           inflammatory or prejudicial nature does not outweigh its

           probative value.

       {¶49} Webster claims that the trial court erred when it excluded (1) evidence

that Jackson had falsely claimed to have had sexual relationships with other NFL

players, (2) evidence that from June 2009 through the summer of 2010, Jackson was

having sexual relationships with Redman and Bud, (3) evidence that Jackson infected

Redman and Bud with sexually transmitted diseases (“STD”), and (4) evidence that

Webster infected his wife with the same STD in the summer of 2010.

       {¶50} We limit our analysis to Webster’s second allegation. There was no

proffer to the trial court pertaining to evidence of the spread of an STD. See State v.

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), syllabus. And the trial court

allowed Jackson to be cross-examined on the issue of whether she had fabricated

stories of sexual relationships with other NFL players.

                      Application of the Rape Shield Law

       {¶51} To determine whether the rape shield law was constitutionally applied to

exclude evidence that Jackson was having affairs with Redman and Bud, the trial court

was required to “balance the state interest which the statute is designed to protect

against the probative value of the excluded evidence.” State v. Gardner, 59 Ohio St.2d

14, 17, 391 N.E.2d 337 (1979).

                                               17
                        OHIO FIRST DISTRICT COURT OF APPEALS


       {¶52} At the outset, Webster argues that the trial court’s balancing of whether

the proffered evidence should have been admitted was flawed because the court applied

a “strict liability” mens rea to the crime of unlawful sexual conduct with a minor.

Without knowing the elements of the offense, Webster argues, the court could not have

properly determined the probative nature of the proffered evidence.

       {¶53} Webster’s representation that the trial court applied an incorrect mens

rea when ruling is not supported by the record. First, the court stated that it had read

Webster’s motion concerning application of the rape shield statute. That motion

included the proper elements of unlawful sexual conduct with a minor. Second, at the

hearing on this matter, the court listened to arguments that set forth the proper mens

rea and then indicated on the record that the crime of unlawful sexual conduct with a

minor carried a mens rea of recklessness concerning the age of the victim. In this

regard, the court stated, “the burden of proof is reckless.        It doesn’t have to be

knowingly or purposely. It’s a lower standard that the state is held to.” Finally, while

ruling on Webster’s motion, the court said, “I don’t see how [the proffered evidence] is

relevant because it’s pretty much a strict liability statute on the age thing, if they prove

that she was between 13 and 16 when they had sex and that he was reckless in that

regard.” (Emphasis added.)

       {¶54} Given the complete context of this sentence and of the hearing overall,

we are convinced that the trial court’s misstatement that unlawful sexual conduct with a

minor was “pretty much a strict liability statute” was simply that─a misstatement and

we find no error.




                                                18
                         OHIO FIRST DISTRICT COURT OF APPEALS


                               Balancing of Interests

       {¶55} The rape shield law advances several state interests. First, it guards the

alleged victim’s sexual privacy and protects her or him from undue harassment, thereby

discouraging the tendency to try the victim rather than the defendant. Gardner, 59

Ohio St.2d at 17, 391 N.E.3d 337. Second, the the rape shield law may encourage the

reporting of rape, thus aiding crime prevention. Id. Third, “by excluding evidence that

is unduly inflammatory and prejudicial, while being only marginally probative, the

statute is intended to aid in the truth-finding process.” Id. at 17-18.

       {¶56} Webster contends that the trial court did not properly weigh the

probative nature of the proffered evidence against these state interests. “The key to

assessing the probative value of the excluded evidence is its relevancy to the matters as

proof of which it is offered.” Id. at 18. Webster claims the proffered evidence would

have explained the multiple phone contacts between his cellular telephone number and

Jackson’s. We acknowledge that the cellular telephone calls and texts were relevant to

the state’s case. But evidence of sexual relationships between Jackson and Redman and

Jackson and Bud was unnecessary to establish that Jackson had called Webster’s

telephone number in order to speak to other people. In fact, Redman and Bud both

testified at trial that the cellular telephone records admitted by the state reflected

contact between each of them and Jackson.              Other witnesses for the defense

corroborated this testimony. And during his confession to police, Webster stated that

Jackson had called his number to speak with either Redman or Bud because she and

one of them “had a connection.”

       {¶57} Webster next claims that evidence that Jackson was in sexual

relationships with other men would have aided his case in regard to his mens rea.

                                                 19
                        OHIO FIRST DISTRICT COURT OF APPEALS


Webster argues that if the jury knew that Jackson was having sexual intercourse with

Redman and Bud, who were in their late teens and early twenties, the jury could have

inferred that Webster must have thought that Jackson was in her late teens or early

twenties. We find this argument to be highly speculative and the evidence of little

probative value.

       {¶58} Overall, we hold that the trial court properly weighed the state interests

that the rape shield law protects with the probative value of the proffered evidence.

                                Rape Shield Waiver

       {¶59} Webster next claims that the state waived its rape shield protection

during trial. The state asked Jackson during direct examination if she had ever engaged

in sexual activity with Redman or Bud. Jackson replied that she had not. Jackson also

testified on direct examination that the only person that she had been sexually involved

with in Webster’s home was Webster.        Webster now argues that, given this line of

questioning, Webster should have been able to question Redman and Bud about this

alleged relationship.

       {¶60} Trial counsel did not raise this exact objection on at trial. The defense

instead argued that parts of Webster’s redacted confession concerning Jackson’s

alleged relationships should have been played for the jury. The trial court overruled this

objection.

       {¶61} In regard to the present argument, we hold that there was no plain error

given that this evidence was of minimal probative value. Long, 53 Ohio St.3d 91, 372

N.E.2d 804 at paragraphs two and three of the syllabus.




                                               20
                       OHIO FIRST DISTRICT COURT OF APPEALS


                                         Severence

       {¶62} In his final argument in this assignment of error, Webster claims the

trial court abused its discretion when it did not grant his motion to sever the gross

sexual imposition count from the remaining charges. The gross sexual imposition

charge is the only charge to which the rape shield law had attached. Webster cites no

case law in support of this argument nor does he cite to alleged error in the record. It

is not this court’s job to ferret out the basis for this claim. App.R. 12; App.R. 16;

Halliday v. Halliday, 8th Dist. Cuyahoga No. 92116, 2010-Ohio-2597, ¶ 17.

       {¶63} Webster’s fifth assignment of error is overruled.

Statement Against Interest

       {¶64} In his sixth assignment of error, Webster claims that the trial court erred

when it ruled that defense witnesses Maurice Anderson and Jennifer Webster could not

testify that Webster had told each of them that he had had a sexual relationship with

Jackson in June 2010. In the alternative, Webster argues that counsel was ineffective

for failing to properly object to the court’s ruling. There is no proffer in the record

concerning Jennifer Webster’s testimony. We therefore confine our analysis to

Anderson’s. See Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500, at syllabus.

       {¶65} Defense counsel proffered that Anderson would have testified that

Webster had admitted to him that Webster had had sexual intercourse with Jackson at

a time when Jackson was 16 years old. Webster claims that Anderson’s testimony was

crucial to his defense because it established that he was having a sexual relationship

with Jackson after Jackson had turned 16. We review this assignment of error for an

abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).



                                              21
                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶66} Webster contends that the trial court improperly applied Evid.R.

804(B)(3) when it determined that his statement to Anderson was inadmissible.

Evid.R. 804(B)(3) provides that a statement against interest may be admitted under

certain circumstances as an exception to the hearsay rule. But Evid.R. 804(B)(3) does

not apply to statements made by a party to the action. 1993 Staff Note to Evid.R.

804(B)(3). A statement made by a defendant is considered an “admission,” and is

governed by Evid.R. 801(D)(2). An “admission” and a “statement against interest”

reflect two distinct concepts and different rules of admissibility apply to each. See

Ferrebee v. Boggs, 24 Ohio App.2d 18, 263 N.E.2d 574 (4th Dist.1970). In pertinent

part, Evid.R. 801(D)(2) provides that the statement sought to be admitted at trial must

be offered against the party who had made the statement.

       {¶67} Here, Webster was attempting to introduce evidence that he had had a

sexual relationship with Jackson in 2010─after Jackson had turned 16 years of age.

The trial court properly determined that this statement was beneficial to Webster and

therefore not admissible. We find no error and no ineffective assistance of counsel.

Webster’s sixth assignment of error is overruled.

Ineffective Assistance of Counsel

       {¶68} In his seventh assignment of error, Webster claims that he was convicted

of the November 2009 charge due to trial counsel’s errors.

       {¶69} To establish a claim for ineffective assistance of counsel, Webster must

show that his attorney’s performance was deficient and that “but for” the deficiency,

there is a reasonable probability that the outcome of his trial would have been

otherwise. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373.

                                              22
                       OHIO FIRST DISTRICT COURT OF APPEALS


        {¶70} Webster asserts that counsel failed to object to a leading question

concerning whether Jackson had had sexual intercourse with Webster in November

2009.    He also asserts that counsel led Jackson to repeat the November 2009

timeframe on cross-examination. According to Webster, without these alleged errors,

there was no evidence that he had had sexual intercourse with Jackson in November

2009.

        {¶71} Webster takes issue with this question:

           And then in November 2009, you said that you continued to see

           the defendant maybe two to three times a week. How would you

           get out of the house to go see the defendant?

        {¶72} Prior to posing this question, the assistant prosecuting attorney had

already established that he was asking Jackson questions concerning the timeframe of

October to November 2009. Also prior to posing this question, Jackson had testified

that she had been having sexual intercourse with Webster two to three times a week

before she had been caught by her mother in Webster’s car, and that she had continued

to see him with the same frequency after she had been caught and “grounded.” And

Michelle Jackson had already testified that she had discovered Webster and Jackson

together on October 30, 2009. Hue Jackson had corroborated Michelle’s testimony.

Consequently, the November 2009 timeframe had been established by Jackson and by

her parents before this question had been posed. The “leading” part of this question

was permissible under Evid.R. 611(C) as a means to aid the jury in understanding that

the state was asking how Jackson managed to see Webster after she had been

“grounded.” See State v. D’Ambrosio, 67 Ohio St.3d 185, 190, 616 N.E.2d 909 (1983).




                                              23
                         OHIO FIRST DISTRICT COURT OF APPEALS


This single question did not establish the November 2009 timeframe as asserted by

Webster. And counsel’s performance was not deficient for failing to object.

       {¶73} Nor was counsel’s performance deficient when she “led” Jackson to

repeat the November 2009 timeframe on cross-examination.              Each of Webster’s

charges was tied to a specific month. The state had presented evidence that Webster

and Jackson had engaged in sexual conduct in November 2009. Defense counsel’s

questions concerning November 2009 attempted to discredit Jackson’s version of

events. This was sound trial strategy and therefore does not constitute ineffective

assistance of counsel.

       {¶74} Webster’s seventh assignment of error is overruled.

Manifest Weight of the Evidence

       {¶75} In his eighth assignment of error, Webster contends that his convictions

were against the manifest weight of the evidence. Since we have already determined

that the December 2009 charge is not supported by sufficient evidence, we confine our

analysis to Webster’s convictions for conduct occurring in September, October, and

November 2009.

       {¶76} While Webster cites the proper standard for our review of this

assignment of error, the bulk of his argument attacks the sufficiency of the state’s case.

“The legal concepts of sufficiency of the evidence and weight of the evidence are both

quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997), syllabus. A sufficiency of the evidence inquiry requires the court to

determine whether the state presented enough evidence to support a conviction. It

tests the adequacy of the state’s case. Id. at 386. In contrast, a weight of the evidence

inquiry is much broader. It requires this court to weigh the evidence and all reasonable

                                               24
                          OHIO FIRST DISTRICT COURT OF APPEALS


inferences, consider the credibility of witnesses and determine whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

        {¶77} Webster asserts that the state presented no evidence that sexual conduct

occurred between Jackson and Webster in October, November, or December 2009.

This is a sufficiency argument. We addressed the sufficiency of the state’s evidence in

the second assignment of error. Next Webster argues that the jury “lost its way”

because it was faced with the choice to convict on all counts or to acquit on all counts.

We addressed Webster’s “all or nothing” argument in the first assignment of error and

found it to be lacking.

        {¶78} Webster next argues that the jury’s weighing of the evidence was tainted

by Pitchford’s vouching for Jackson’s truthfulness. We have already addressed this

argument, as well, and determined that Pitchford’s testimony was properly before the

jury.

        {¶79} To the extent that Webster contends that the jury should not have

believed the state’s version of events, we find no indication that the jury “lost its way” in

weighing the evidence presented.

        {¶80} Webster’s eighth assignment of error is overruled.

Cumulative Error

        {¶81} In his ninth assignment of error, Webster contends that the cumulative

effect of the errors in this case deprived him of a fair trial. The cumulative error

doctrine provides that multiple instances of harmless error, while not individually

prejudicial, may have the cumulative effect of depriving a defendant of a fair trial. State

                                                 25
                         OHIO FIRST DISTRICT COURT OF APPEALS


v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). Here, Webster contends that

various combinations of errors in assignments of error one through seven mandate a

reversal of his convictions. We have determined that no error occurred, harmless or

otherwise, in the vast majority of these assignments of error. We therefore hold that

the cumulative error doctrine does not apply. Webster’s ninth assignment of error is

overruled.

The Restitution Order

       {¶82} In his tenth assignment of error, Webster claims that the trial court’s

restitution order was not authorized by law and therefore must be reversed. This

argument has no merit.

       {¶83} The trial court ordered Webster to pay $3400 in restitution to Jackson to

reimburse her for counseling expenses that were incurred in connection with Webster’s

crimes. Webster claims that this order was contrary to law. He cites R.C. 2929.11(E) in

support of his argument. But that code section was repealed effective July 1, 1996. The

applicable code section, R.C. 2929.18(A), allows a trial court to order a defendant to pay

restitution “in an amount based on the victim’s economic loss.”              Under R.C.

2929.01(M), “economic loss” includes any medical cost incurred as a result of the

commission of the offense at issue. This assignment of error is overruled.

Webster’s Sentence

       {¶84} Webster asserts that the trial court abused its discretion when it imposed

sentences greater than the minimum term of incarcerations, ordered the sentences to

run consecutively, and fined Webster $40,000. Aside from the trial court’s sentence on

the December 2009 charge, we find no error.



                                               26
                        OHIO FIRST DISTRICT COURT OF APPEALS


       {¶85} Our review of the record shows that the trial court’s sentences on the

September, October, and November 2009 charges were within the range allowed by

law, and were not so arbitrary, unreasonable or unconscionable as to connote an abuse

of discretion. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

¶ 14-17; State v. Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-

Ohio-3349, ¶ 9 and 27.       And the record indicates that the trial court carefully

considered the facts of the case before imposing sentence. The trial court’s sentences

on counts four, five and six (the September, October, and November charges) of

Webster’s indictment are affirmed.

       {¶86} Since we have determined that Webster’s conviction on count seven of

his indictment for sexual conduct with a minor occurring in December 2009 was not

supported by sufficient evidence, we reverse the court’s twenty-four month sentence on

that count.

       {¶87} Webster’s eleventh assignment of error is sustained in part and

overruled in part.

Conclusion

       {¶88} There was insufficient evidence to support a conviction for count seven

of Webster’s indictment, charging him with unlawful sexual conduct with a minor

occurring in December 2009. That conviction is reversed. In all other respects, the

trial court’s judgment is affirmed.

       {¶89} This case is remanded to trial court to enter judgment vacating Webster’s

conviction on count seven of his indictment and to adjust his sentence accordingly. We

note that this will result in a 24 month reduction in Webster’s term of imprisonment.

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

                                              27
                       OHIO FIRST DISTRICT COURT OF APPEALS


HILDEBRANDT and FISCHER, JJ., concur.


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




                                             28
