[Cite as State v. Hauptstueck, 2011-Ohio-3502.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                       :
                                                    :     Appellate Case No. 24013
        Plaintiff-Appellee                          :
                                                    :     Trial Court Case No. 10-CR-90
v.                                                  :
                                                    :
KEITH HAUPTSTUECK                                   :     (Criminal Appeal from
                                                    :     (Common Pleas Court)
        Defendant-Appellant               :
                                                 :
                                              ...........

                                              OPINION

                               Rendered on the 15th day of July, 2011.

                                                  .........

MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorneys for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. #0005031, 108 Dayton Street, Yellow Springs, Ohio
45387
      Attorney for Defendant-Appellant

                                                  .........

HALL, J.

        {¶ 1} Keith Hauptstueck appeals from his conviction and sentence following a jury

trial on four counts of raping a child under age thirteen, one count of forcible rape, two counts
                                                                                             2


of gross sexual imposition involving a child under age thirteen, one count of gross sexual

imposition by force, and one count of sexual battery.

        {¶ 2} Hauptstueck advances eight assignments of error on appeal. First, he contends

the prosecutor engaged in misconduct during closing arguments by appealing to jurors’

emotions. Second, he claims the trial court erred in allowing the State to introduce

inadmissible expert testimony. Third, he asserts that the prosecutor engaged in misconduct by

arguing facts not in evidence. Fourth, he alleges that count nine of his indictment, which

charged sexual battery, was fatally defective. Fifth, he argues that he received constitutionally

ineffective assistance of trial counsel. Sixth, he contends his convictions are against the

manifest weight of the evidence. Seventh, he claims the trial court erred in failing to suppress

a tape recording of telephone conversations he had with the victim’s mother. Eighth, he

asserts that cumulative error deprived him of his right to a fair trial.

        {¶ 3} The charges against Hauptstueck stemmed from allegations that he had sexually

abused his grandson, M.S., on numerous occasions over several years. The victim’s mother,

T.I., testified at trial that she confronted her son after a friend expressed concerns about an

inappropriate relationship between Hauptstueck and the child. Without mentioning

Hauptstueck, T.I. and her husband asked M.S. whether “anything inappropriate” was going on

and whether he knew what they were talking about. M.S. replied that he did know, and he

accused Hauptstueck of sexually abusing him. According to T.I., M.S. told her that

Hauptstueck had “been doing it * * * for years.”

        {¶ 4} After confronting her son, T.I. contacted the police, who began an investigation.

While the investigation was proceeding, Hauptstueck periodically called T.I.’s house. T.I.
                                                                                                                                   3


initially avoided the calls. She then reported the calls to police. Detective Michael Rotterman

discussed the issue with T.I. and informed her that she could tape-record her conversations

with Hauptstueck. The following day, T.I. gave police a recording of two telephone

conversations between herself and Hauptstueck during which he made incriminating

admissions about fondling M.S. and engaging in oral sex with the child. After reviewing the

tapes, detective Rotterman and another detective interviewed Hauptstueck at the police

station. During those interviews, Hauptstueck again admitted sexually molesting M.S on

multiple occasions. M.S. also testified at trial and recalled Hauptstueck sexually abusing him

at three locations over a period of years. M.S. additionally testified about Hauptstueck

possessing a gun and threatening to kill anyone who found out about the abuse.

         {¶ 5} After the jury convicted Hauptstueck of the charges set forth above, the trial

court imposed an aggregate sentence of sixty-six and one-half years in prison. This appeal

followed.

         {¶ 6} In his first assignment of error, Hauptstueck contends the prosecutor engaged in

misconduct during closing arguments by appealing to jurors’ emotions. In particular, he takes

issue with remarks the prosecutor made while playing part of a tape recording. The remarks

were as follows:

         {¶ 7} “I just want to play a couple more clips for you. And these are [T.I.’s] words,

and they are quite haunting.

         {¶ 8} “(CD played from 11:21 a.m. to 11:22 a.m.)1


           1
               The clips from the CD were not transcribed but they were recorded on the audio/video transcript which we have reviewed.
 The clips are from the telephone recording between the victim’s mother and the defendant which had previously been played to the jury.
 The portion replayed during the argument is the victim’s mother saying the boy feels he is not worth anything, he cuts himself because of
                                                                                                                                   4


         {¶ 9} “[T.I.’s] words that her son will be changed forever, that she’s left with a broken

child. She thought she took her kids to a safe place, to their grandparents. Her words are

haunting, but the Defendant’s words convicted him of seven of the nine counts. And the final

two counts, common sense convicts the Defendant.” (Trial transcript, at 236-237).

         {¶ 10} Hauptstueck contends the prosecutor’s remarks were objectionable because

they were intended to inflame jurors’ emotions. We note, however, that defense counsel did

not object. Therefore, Hauptstueck has waived all but plain error, which does not exist unless,

but for the error, the outcome would have been different and reversal is necessary to prevent a

manifest miscarriage of justice. State v. Davis, 127 Ohio St. 3d 268, 2010-Ohio-5706. We see

no plain error here.

         {¶ 11} “The test for prosecutorial misconduct is whether the prosecutor’s acts were

improper in their nature and character and, if they were, whether the substantial rights of the

defendant to a fair trial were prejudiced thereby.” State v. McGonegal (Nov. 2, 2001),

Montgomery App. No. 18639, citing State v. Smith (1984), 14 Ohio St.3d 13, 14. “While a

prosecutor may not make excessively emotional arguments tending to inflame the jury’s

sensibilities, the prosecutor is entitled to some latitude in making a closing argument to the

jury.” State v. Tibbetts (2001), 92 Ohio St. 3d 146, 168. In the context of argument about the

force element of the two final charges, where the force was not physical but rather subtle or

psychological, the child’s emotional state could have had some relevance. We are not able to

say that the argument was improper.

         {¶ 12} Even if defense counsel had objected, the prosecutor’s remarks here would not


 what the defendant has done and she is left with a broken child who she thought she had taken to a safe place, the grandparents’ home.
                                                                                             5


have warranted reversal. In our view, the remarks did not make an excessively emotional

appeal to the jurors’ emotions. While characterizing T.I.’s words as “haunting,” the prosecutor

focused on Hauptstueck’s own words, which the prosecutor pointed out were enough to

convict him on most of the charges. We see no prosecutorial misconduct and certainly no

plain error. The first assignment of error is overruled.

       {¶ 13} In his second assignment of error, Hauptstueck claims the trial court erred in

allowing the State to introduce inadmissible expert testimony. This argument concerns

testimony from pediatric psychologist Sarah Greenwell, who explained that adolescent males

often delay reporting abuse involving a family member.

       {¶ 14} Hauptstueck contends Greenwell’s testimony was inadmissible under Evid.R.

703, which provides: “The facts or data in the particular case upon which the expert bases an

opinion or inference may be those perceived by the expert or admitted into evidence at the

hearing.” Hauptstueck also challenges the admissibility of Greenwell’s testimony under

Evid.R. 705, which states: “The expert may testify in terms of opinion or inference and give

the expert’s reasons therefor after disclosure of the underlying facts or data. The disclosure

may be in response to a hypothetical question or otherwise.”

       {¶ 15} On appeal, Hauptstueck contends Greenwell was not asked any hypothetical

questions. He also notes that she demonstrated no familiarity with the facts of his case, did not

refer to any such facts, and did not claim to have reviewed the record. Therefore, he argues

that her testimony failed to comply with Evid.R. 703 and Evid.R. 705.

       {¶ 16} We are unpersuaded by Hauptstueck’s argument. Once again, we are limited to

plain-error review as no objection was made below. As set forth above, Greenwell testified
                                                                                            6


generally about delayed disclosures of sexual abuse, a relevant issue in this case. Although she

did not specifically address M.S.’s situation, she identified the types of children who tend to

delay reporting and the situations often involved. Greenwell indicated that her testimony was

based on her own experience and her review of the “literature.” Greenwell adequately

identified the basis for her opinions, and she satisfied Evid.R. 703 and Evid.R. 705. See, e.g.,

Beard v. Meridia Huron Hosp., 106 Ohio St. 3d 237, 241, 2005-Ohio-4787, ¶26. (“Because

experts are permitted to base their opinions on their education, including their review of

professional literature, training, and experience, it follows that experts are also permitted to

testify regarding that information.”). The second assignment of error is overruled.

       {¶ 17} In his third assignment of error, Hauptstueck asserts that the prosecutor

engaged in misconduct by arguing facts not in evidence. In particular, he challenges the

prosecutor’s statements during closing arguments about the absence of DNA or other physical

evidence. Hauptstueck contends no testimony was presented at trial upon which the

prosecutor could base an argument regarding such evidence.

       {¶ 18} We disagree. Plain-error analysis applies here, too, because defense counsel did

not object to the prosecutor’s remarks. In any event, the record fails to support Hauptstueck’s

allegation of prosecutorial misconduct. On cross examination, defense counsel asked two

detectives whether they had found any DNA or other physical evidence corroborating M.S.’s

allegations. They responded that they had not. On re-direct examination, one of the detectives

explained that he did not expect to find physical evidence such as DNA because the

allegations involved touching and oral sex performed long before the investigation began.

Moreover, defense counsel commented on the lack of DNA evidence in his closing argument.
                                                                                                                                    7


 In light of the testimony and the defense argument, the prosecutor properly addressed the

non-existence of DNA or other physical evidence during closing arguments. The third

assignment of error is overruled.

         {¶ 19} In his fourth assignment of error, Hauptstueck alleges that count nine of his

indictment, which charged sexual battery, was fatally defective.

         {¶ 20} Count nine alleged that Hauptstueck “did engage in sexual conduct with

another, not his spouse, said offender being the other person’s natural or adoptive parent, or a

stepparent or guardian, custodian, or person in loco parentis of the other person[.]”

Hauptstueck claims this charge was flawed because it failed to set forth the facts upon which

his “in loco parentis” status was predicated. His argument emanates from State v. Noggle

(1993), 67 Ohio St.3d 31. There, the Ohio Supreme Court held that “[i]ndictments based

upon an alleged offender’s status as a person in loco parentis should at least state the very

basic facts upon which that alleged status is based.” Id. at paragraph two of the syllabus.

         {¶ 21} Upon review, we find Hauptstueck’s argument to be unpersuasive. As with his

other arguments, he failed to raise this one below. Therefore, he has waived all but plain error.

State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, paragraph three of the syllabus. We

find no plain error here.

         {¶ 22} The purpose of including a factual basis to support an allegation of in loco

parentis status in an indictment is to give a defendant sufficient notice of the charge against

him. 2 See State v. Funk, Franklin App. No. 05AP-230, 2006-Ohio-2068, ¶49. When an


           2
            The State suggests that the Ohio Supreme Court implicitly has overruled Noggle because more recent cases only have required an
 indictment to track the language of a statute to be sufficient. The conclusion in Noggle that the words “in loco parentis” were not sufficient
 has not been directly overruled, modified, or criticized by any more recent Ohio Supreme Court cases. Given our disposition of this
                                                                                                               8


indictment charging sexual battery lacks such a factual basis, a bill of particulars can serve the

same purpose. Noggle, at 34. Here Hauptstueck never requested a bill of particulars. This fact,

combined with his failure to object to the language of his indictment and his ability to present

a defense at trial, suggests that he was not misled and that he understood the nature of the

sexual battery charge against him. Indeed, it is readily apparent to this Court that the factual

basis for an in loco parentis finding here was Hauptstueck’s status as a grandparent with

whom M.S. visited and spent the night. A grandparent is significantly different from the

teacher/coach relationship in Noogle or the family-friend/houseguest in Funk. Because

Hauptstueck was a grandparent, and because the evidence supports a finding of in loco

parentis status, we find no plain error in his indictment’s omission of specific basic facts to

support that status. Accordingly, the fourth assignment of error is overruled.

         {¶ 23} In his fifth assignment of error, Hauptstueck argues that he received

constitutionally ineffective assistance of trial counsel. In particular, he criticizes his attorney

for failing to object to count nine of his indictment, to pediatric psychologist Greenwell’s

expert testimony, or to the prosecutor’s closing argument.

         {¶ 24} To prevail on his claim, Hauptstueck must show deficient performance and

resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674. To establish deficiency, he must show that counsel’s representation fell below

an objective standard of reasonableness. Id. To show prejudice, he must demonstrate that

counsel’s deficiency impacted the judgment against him. State v. Bradley (1989), 42 Ohio

St.3d 136. Reversal is warranted if there is a reasonable probability that, but for counsel’s


 assignment of error on other grounds, we decline to determine whether Noggle has been implicitly overruled.
                                                                                            9


deficient performance, the result of the proceeding would have been different. Id.

       {¶ 25} Upon review, we conclude that Hauptstueck cannot prevail on his

ineffective-assistance claim. In our analysis above, we concluded that he was not prejudiced

by his indictment’s omission of basic facts supporting an in loco parentis allegation in count

nine. Moreover, with regard to Greenwell’s testimony, we held that it was not objectionable

under Evid.R. 703 or Evid.R. 705. We also found nothing objectionable about the challenged

portion of the prosecutor’s closing argument. In light of these determinations above,

Hauptstueck has failed to establish any deficient performance by his trial counsel that

prejudiced him. His fifth assignment of error is overruled.

       {¶ 26} In his sixth assignment of error, Hauptstueck contends his convictions are

against the manifest weight of the evidence. In support, he notes that M.S. failed to report any

abuse for years and ultimately did so only after being questioned by his mother. Hauptstueck

also stresses M.S.’s inability to recall specific dates or the number of times sexual abuse took

place. He additionally points to evidence that T.I. once caught M.S. viewing “gay

pornography” on the internet. Hauptstueck attributes M.S.’s allegations of abuse to the child

having viewed this pornography.

       {¶ 27} When a conviction is challenged on appeal as being against the weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v.

Thompkins (1997), 78 Ohio St.3d 380, 387 (citations omitted). A judgment should be reversed
                                                                                               10


as being against the manifest weight of the evidence “only in the exceptional case in which the

evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172,

175.

       {¶ 28} Having reviewed the record, we do not find that Hauptstueck’s convictions are

against the weight of the evidence. M.S. testified about incidents of abuse occurring at three

locations over a period of years. The jury heard recorded telephone conversations between

Hauptstueck and T.I. during which he admitted sexually abusing M.S. The jury also watched a

recording of Hauptstueck’s interview at the police station during which he again admitted

molesting M.S. on multiple occasions.

       {¶ 29} With regard to M.S.’s delay in reporting the abuse, the State presented

testimony from pediatric psychologist Greenwell, who explained why adolescent males often

delay reporting abuse involving a family member. As for M.S.’s inability to recall certain

specifics, his lack of recall is not surprising given the length of time involved. Finally, the jury

was free to reject Hauptstueck’s theory that M.S. may have fabricated the sexual-abuse

allegations after viewing internet pornography. In light of M.S.’s testimony, and

Hauptstueck’s recorded confessions, the jury did not clearly lose its way and create a manifest

miscarriage of justice when it found him guilty. The evidence does not weigh heavily against

Hauptstueck’s convictions. The sixth assignment of error is overruled.

       {¶ 30} In his seventh assignment of error, Hauptstueck claims the trial court erred in

failing to suppress the tape recording of his telephone conversations with T.I. In support, he

contends detective Rotterman induced T.I. to record the conversations. Therefore, he reasons

that T.I. was acting as a government agent and that a warrant was required before she could
                                                                                           11


tape the conversations.

       {¶ 31} Hauptstueck’s argument lacks merit for at least two reasons. First, the record

does not establish that T.I. was acting as a State agent when she recorded the calls. Detective

Rotterman did not instruct her to record any conversations, did not provide her with a

recording device, did not arrange the conversations, and was not present when they occurred.

The detective simply told her that she could talk to Hauptstueck on the telephone and

suggested that she might want to record the conversation. We are unpersuaded that this advice

transformed T.I. into an agent of the State for Fourth Amendment purposes.

       {¶ 32} Second, Hauptstueck’s argument is unpersuasive even assuming, purely

arguendo, that T.I. did qualify as a State agent. We are aware of no authority that precludes a

law-enforcement officer or other      government agent from speaking to a suspect on the

telephone and recording the conversation without a warrant. Although Hauptstueck generally

cites R.C. 2933.51, et. seq., Ohio’s electronic surveillance law, nothing therein precluded T.I.

from recording her telephone conversations with him. The statute generally prohibits the

warrantless interception of wire, oral, or electronic communications. It does not apply,

however, to a law-enforcement officer who “intercepts a wire, oral, or electronic

communication, if the officer is a party to the communication[.]” R.C. 2933.52(B)(3). Nor

does the statute apply to “[a] person who is not a law enforcement officer and who intercepts

a wire, oral, or electronic communication, if the person is a party to the communication[.]”

R.C. 2933.52(B)(4). The upshot of these exceptions is that T.I. was not prohibited from

recording her conversations without a warrant because she was a party to the conversations.

For this additional reason, the seventh assignment of error is overruled.
                                                                                             12


       {¶ 33} In his eighth assignment of error, Hauptstueck raises a claim of cumulative

error. He contends the effect of the errors alleged in his first seven assignments of error, even

if individually harmless, cumulatively deprived him of a fair trial.

       {¶ 34} It is true that separately harmless errors may violate a defendant’s right to a fair

trial when the errors are aggregated. State v. Madrigal (2000), 87 Ohio St.3d 378, 397. To find

cumulative error, we first must find multiple errors committed at trial. Id. at 398. We then

must find a reasonable probability that the outcome below would have been different but for

the combination of separately harmless errors. State v. Thomas (Sept. 21, 2001), Clark App.

No.2000-CA-43. In our review of Hauptstueck’s other arguments, however, we found no

multiple errors. Therefore, we find no cumulative error. The eighth assignment of error is

overruled.

       {¶ 35} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                        ..............



FAIN, J., concurs.

FROELICH, J., concurring:

       {¶ 36} I concur, but I would find the separate playing of and commenting on the

“haunting” excerpt to be inappropriate and possibly error. Its effect was to emphasize a

mother’s emotional explanation of the harm and pain suffered by her and her child rather than

whether the State had proved the Appellant guilty beyond a reasonable doubt.

       {¶ 37} However, I agree with the majority that such actions were not plain error and

that the failure to object did not constitute ineffective assistance; the lack of objection may
                                                                                          13


well have been a decision by counsel not to draw attention to the statements. Further, even if

an objection had been made, the playing of the recording and the prosecutor’s brief remark did

not deprive the Appellant of a fair trial.

                                             ..........


Copies mailed to:

Mathias H. Heck, Jr.
Laura M. Woodruff
George A. Katchmer
Hon. Barbara P. Gorman
