[Cite as State v. Muller, 2012-Ohio-3530.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-11-09

        v.

KYLE A. MULLER,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                           Trial Court No. 10 CR 10745

                                      Judgment Affirmed

                             Date of Decision: August 6, 2012




APPEARANCES:

        Clayton J. Crates for Appellant

        Morris J. Murray and Russell R. Herman for Appellee
Case No. 4-11-09


ROGERS, J.

       {¶1} Defendant-Appellant, Kyle Muller (“Muller”) appeals the judgment of

the Court of Common Pleas of Defiance County, convicting him of three counts of

sexual battery and one count of rape and imposing a seventeen-year prison term.

On appeal, Muller asserts that the trial court abused its discretion by denying his

motion for relief from prejudicial joinder and refusing to sever the complaining

witnesses for separate trials; that the trial court abused its discretion by admitting

testimony of other acts evidence regarding a similar sexual encounter involving

Muller in Michigan; that the trial court erred in denying Muller’s motion for

acquittal of the four rape charges as there was insufficient evidence to establish the

element of force; that the trial court erred by prohibiting Muller from introducing

opinion evidence of two complaining witnesses’ untruthfulness; that Muller’s

conviction for sexual battery in Count Seven was against the manifest weight of

the evidence; and, that the trial court erred by denying Muller’s motion for

judgments notwithstanding the verdicts as insufficient evidence was presented that

Muller was not the spouse of any of the complaining witnesses. For the following

reasons, we affirm the judgment of the trial court.

       {¶2} On February 19, 2010, the Defiance County Grand Jury indicted

Muller on nine counts: four counts of rape in violation of R.C. 2907.02(A)(2),

felonies of the first degree, four counts of sexual battery in violation of R.C.


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2907.03(A)(2), felonies of the third degree, and one count of sexual battery in

violation of R.C. 2907.03(A)(1), a felony of the third degree. The indictment

followed an investigation conducted on Defiance College campus due to five

alleged victims reporting allegations of improper sexual conduct by Muller. On

September 9, 2010, Muller entered pleas of not guilty to all charges.

         {¶3} On December 30, 2010, the State filed a motion in limine requesting

the preclusion of any statements concerning the prior or current sexual activity of

the complaining witnesses in accordance with R.C. 2907.02(D). On January 12,

2011, defense counsel filed two motions: the first, a motion for relief from

prejudicial joinder, requesting separate trials as to each complaining witness, and

the second, a motion in limine requesting the trial court to prohibit the State from

introducing evidence or making references to Muller’s conviction in Michigan on

April 29, 2010 for similar charges. Trial commenced February 28, 2011.1

         {¶4} The following evidence was adduced at trial. For the State’s case-in-

chief, it first presented Kenneth Wetstein (“Wetstein”), the Vice President for

Student Engagement at Defiance College. Wetstein explained that Muller was a

1
  Although the record is devoid of any rulings prior to trial on the above motions, the trial transcript reveals
that the trial court did grant Defendant’s motion in limine prohibiting evidence regarding Muller’s
conviction in Michigan but allowed a witness (J.W.) to testify regarding the conduct as it was indicative of
“motive, habit, plan, pattern of conduct * * * scheme and the like.” Trial Tr., p. 98. The trial court denied
Defendant’s motion to sever the various counts in the indictment after a hearing on the matter “on the basis
of a combination of judicial economy, common witnesses and similar matters.” Trial Tr., p. 100. No
ruling on the State’s motion in limine is in the record or in the trial transcript. On March 24, 2011, after the
trial, but before sentencing, an entry was filed denying Defendant’s motion for separate trials. Docket No.
64.


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Case No. 4-11-09


student at Defiance College from August 2008 until November 2009. In the

spring of 2009, Wetstein received a complaint in the form of a communication

information form (“CIF”) from two female students, who wished to remain

anonymous, reporting that Muller behaved in an inappropriate sexual manner

towards them. In response to the CIF, Wetstein arranged a meeting with Muller to

discuss the allegations, during which he warned Muller about his behavior towards

women when alcohol is involved.

       {¶5} In August 2009 a coach reported to Wetstein that a woman had

disclosed a sexual assault to him, reporting that Muller was the alleged perpetrator

and M.A. was the alleged victim. Wetstein explained that in October 2009 M.A.

submitted a formal complaint, describing the allegation that Muller had sexually

assaulted her. Upon receiving M.A.’s formal complaint, he met with Muller and

suspended him for ten days. During the suspension period, another alleged victim,

A.K., submitted a formal complaint against Muller. A formal hearing was held in

front of the College Judicial Committee, after which it determined that Muller was

responsible for violating the Student Code of Conduct and recommended to

Wetstein that Muller be expelled.       Wetstein implemented the sanction and

expelled Muller.




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                           Testimony regarding M.A.’s Allegations2

         {¶6} M.A. testified that she is a student and a soccer player at Defiance

College. She testified that in August 2009 she arrived on campus for pre-season

football camp, as was required of all students majoring in athletic training. She

described her duties as an athletic trainer as attending all practices, taping the

players, filling up the whirlpool, watching practice in case of injury, administering

first aid and ultrasounds, and delivering ice. “Ice duty” requires that the athletic

trainer deliver ice to the football players in the lobby of their dorms before they go

to bed. She testified that the athletic trainers are prohibited from associating with

the players during the entirety of football camp and from going into the “pods.”3

         {¶7} M.A. was acquainted with Muller as he was a member of the football

team and because Defiance College is a small campus and “everyone pretty much

knows everyone.” Trial Tr., p. 172. On August 16, 2009, she was on “ice duty”

and delivered ice to Muller. M.A. testified that she went into Muller’s “pod,” into

the living room of his dorm, and watched TV with him. She explained that she sat

on the futon and he sat next to her, and laid his head on her leg. He then tried to

2
  As to M.A., Muller was charged in Count Three with sexual battery in violation of R.C. 2907.03(A)(1),
defined as “[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when *
* * the offender knowingly coerces the other person to submit by any means that would prevent resistance
by a person of ordinary resolution.” The jury ultimately found Muller not guilty of this charge.
3
  Wetstein testified that at Defiance College, there is a dormitory complex known as the Jacket Suites or
“pods”. There are three pods: the north, the south, and the east pod. Each pod contains four or five suites.
Each suite contains two bedrooms and a common area with a kitchenette, a bathroom, and a shower. The
suites house four students. Wetstein explained that since the furniture is mobile in each pod, it is common
for residents to rearrange furniture to create one bedroom for all four students, and one living room or study
area.

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Case No. 4-11-09


reach his hand down her pants and touch her buttocks. She testified, “I was like

what are you doing; like I didn’t come over here for that; I’m just watching this;

like what are you doing; and then he like pulled his hand out; and then like shortly

after, he stuck his hand back up the front this time.” Trial Tr., p. 181. She then

explained that after the second attempt to put his hand up her shorts, “I kind of like

didn’t seriously ask, I said what are you doing; like I didn’t come over here for

that; I just came over here to deliver you ice; like what are you doing; and then he

stopped again.” Id. at p. 182.

       {¶8} M.A. said they resumed talking and that he wanted to show her a

video on his computer of his brother. In order to watch the video, she moved to a

recliner closer to the computer. Before she moved to the recliner, she texted her

friend, Kelsey Ferguson (“Kelsey), to get Kelsey to call her and give her an excuse

to leave. M.A. texted her several times, but she didn’t respond. M.A. moved over

to the recliner to watch the video, and while the video was loading, Muller “was in

front of me and he put his hands up my shorts and put his fingers in me and then

he transitioned and put himself inside me as I was sitting there.” Id. at p. 183.

       {¶9} She testified that after he was finished, she kissed Muller on the

mouth, they watched the video on his computer, she moved back to the futon to

check her phone, and then left. She testified that she ran to Kelsey’s room, but

Kelsey did not answer the door because she was asleep. M.A. told Kelsey about


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Case No. 4-11-09


the incident the next day, reported it to another athletic trainer and to her assistant

soccer coach, but did not report it to the police or her parents until months later

when she found out about the other girls.

                           Testimony regarding H.D.’s Allegations4

        {¶10} H.D. testified that she recently graduated from Defiance College

where she played soccer. In 2008, H.D. met Muller at a dance. In February 2009,

H.D. went to a party at the “football house” (Trial Tr., p. 224) to celebrate a

basketball victory and became severely intoxicated. Ashton Judis and Muller

walked H.D. back to her dorm room, left, and later Muller came back because she

was getting sick. When Muller came back to help her, she “passed out.” Id. at p.

227. When she woke up, Muller was having sex with her. She asked him what he

was doing and then passed out again. Muller left the next morning.

        {¶11} H.D. also testified that a few months prior to this incident, she had

sexual contact with Muller when she was sober. H.D. testified that she and Muller

had discussed having sex prior to this incident, and H.D. repeatedly told him that

she did not want to have sex with him. H.D. stated that she did not tell anyone




4
  As to H.D., Muller was charged in Count One with forcible rape in violation of R.C. 2907.02(A)(2),
defined as “[n]o person shall engage in sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force” and in Count Two with sexual battery in violation of
R.C. 2907.03(A)(2) defined as “[n]o person shall engage in sexual conduct with another, not the spouse of
the offender, when * * * the offender knows that the other person’s ability to appraise the nature of or
control the other person’s own conduct is substantially impaired.” The jury ultimately found Muller not
guilty of rape but guilty of sexual battery.

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Case No. 4-11-09


about the incident because she was embarrassed and ashamed and felt that she let

it happen.

         {¶12} On cross-examination, H.D. testified that after Muller and Ashton

dropped her off at her dorm room that night, she sent Muller a text message, but

she could not remember what she said in the text or Muller’s response.

                           Testimony Regarding K.B.’s Allegations5

         {¶13} K.B. testified that she was enrolled as a student at Defiance College

during the 2009-2010 academic year. She met Muller on August 28, 2009 at a

school dance.         On August 29, 2009, after attending a party where she had

consumed alcohol, K.B. went to Kyle Keegan’s dorm room, where several of her

friends had arranged to stay the night.                   K.B.’s roommate, Kaye Bockbrader

(“Kaye”), Kyle Keegan (“Kyle”), and Khalil Hazime (“Khalil”), were also in the

dorm room. Kaye and Kyle were on the bunk bed, which had been made into a

lofted bed, and K.B. and Khalil were on the futon located underneath the bunk

bed. A few minutes after they went to bed, several people came into the room,

including Muller. K.B. testified that she had feelings for Khalil, but that after

Muller came into the room, Khalil left, and Muller kissed her, pushed her down


5
  As to K.B., Muller was charged in Count Four with forcible rape in violation of R.C. 2907.02(A)(2),
defined as “[n]o person shall engage in sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force” and in Count Five with sexual battery in violation of
R.C. 2907.03(A)(2) defined as “[n]o person shall engage in sexual conduct with another, not the spouse of
the offender, when * * * the offender knows that the other person’s ability to appraise the nature of or
control the other person’s own conduct is substantially impaired.” The jury ultimately found Muller not
guilty of both charges.

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Case No. 4-11-09


onto the bed, bent her wrist back, laid on top of her, undid her pants, and raped

her.

       {¶14} A few minutes later Khalil walked back into the room and “caught

both of [them] a little bit off guard.” Id. at p. 275. K.B. was then able to push

Muller off of her, pull up her shorts, and stand up. Khalil said to Muller, “you

owe me.” Id. K.B. testified that she was mad at Khalil and asked him where he

went, and Khalil left the room again. After that, K.B. ran out of the room and

went to her own dorm room.

       {¶15} On cross-examination, K.B. testified that the futon was about four

feet below the bunk bed; that she did not say no or yell out to Kaye and Kyle; that

when Khalil walked back into the room, she did not tell him that Muller raped her,

but instead asked him where he was. She also testified that when someone from

Defiance College contacted her about the situation, she responded that she

appreciated the concern but that it was unnecessary because everything was okay.

       {¶16} For the defense’s case-in-chief, it called Khalil who testified that he

was a football player at Defiance College during the 2009-2010 academic year.

Khalil testified that on August 29, 2009, he and K.B. stayed the night in the same

dorm room with Kaye and Kyle. He testified that Kaye and Kyle were on the top

bunk, and that he and K.B. were on the bottom. He testified that everyone in the

room was intoxicated, but that K.B. was coherent and engaging in conversation.


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Case No. 4-11-09


He and K.B. were kissing when Muller and two other people walked into the

room. He testified that when Muller came in the room, he left; K.B. was still lying

on the bed. He came back to retrieve his shoes and he saw K.B.’s pants were

pulled down a bit, but not low enough to have sexual intercourse, and that

Muller’s hands were in that area. K.B. started crying and ran out of the room.

      {¶17} Kaye testified that she was a student at Defiance College during the

fall 2009 semester and that she was K.B.’s roommate and friend. On August 29,

2010, K.B. was in her dorm room watching a movie when she got a phone call

inviting her to stay the night in another dorm room with Khalil, K.B., and Kyle.

She testified that everyone else had been drinking at a party, but that she was

sober. She went into the other dorm room, and about five or ten minutes after

everyone got into bed, Muller came into the room with two other men. Kaye

testified that she asked them to leave, and that the other two men left, but that

Muller asked to stay so Kaye allowed him to stay.

      {¶18} Kaye stated that Muller talked to her and Kyle for a little bit and then

talked to Khalil and K.B. Khalil left to go to the bathroom and was gone for about

five minutes and then came back to the room and grabbed his shoes. While Khalil

was gone, Kaye did not hear anything besides whispering. Kaye testified that

when Khalil came back for his shoes, he saw Muller in bed with K.B. and said,

“You owe me one, man.” Id. at p. 454. Kaye said that K.B. “shot out of bed” (Id.)


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Case No. 4-11-09


and was screaming at Khalil, asking him what he just said. Kaye testified that, up

until that point, K.B. had been calm, but after Khalil’s statement, she got upset and

ran out of the room crying. Kaye testified that K.B,’s pants may have been

unbuttoned but were up past her hips. Kaye and K.B. never talked about the

incident that night, but that they later got into an argument because K.B. was upset

about Kaye’s statement to the detective.

                          Testimony Regarding A.K.’s Allegations6

        {¶19} A.K. testified that she was a student at Defiance College in the fall of

2009. She met Muller through a friend. On the weekend of September 18, 2009,

she and D.M. went to Muller’s “pod.” They were playing drinking games, when

A.K. consumed too much alcohol, became ill, and vomited. Muller aided her in

the bathroom and then told her that she could lie in the top bunk bed. She testified

that she climbed up to the top bunk bed, Muller took off her shorts, and had sex

with her. She stated that she “just laid there” and “didn’t want to move” and

“couldn’t feel anything [be]cause [she] was just so sick.” Id. at p. 319. The next

morning, when Muller and his roommates left for a football game, D.M. got into

bed with her and asked her where her shorts were. A.K. testified that she returned


6
  As to A.K., Muller was charged in Count Six with forcible rape in violation of R.C. 2907.02(A)(2),
defined as “[n]o person shall engage in sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force” and in Count Seven with sexual battery in violation
of R.C. 2907.03(A)(2) defined as “[n]o person shall engage in sexual conduct with another, not the spouse
of the offender, when * * * the offender knows that the other person’s ability to appraise the nature of or
control the other person’s own conduct is substantially impaired.” The jury ultimately acquitted Muller of
rape but found him guilty of sexual battery.

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Case No. 4-11-09


to Muller’s dorm room the next night because D.M. and Muller had a relationship,

and D.M. wanted A.K. to go with her.

         {¶20} On cross-examination, A.K. testified that two other people were in

the bedroom when Muller allegedly raped her, but that she did not yell for help

because she was feeling sick. She also testified that the next morning she and

D.M. cleaned the “pod.”              When they returned that evening, two of Muller’s

roommates left to get alcohol and D.M. left the room as well, so she and Muller

were alone in the dorm room. During this time she and Muller engaged in sexual

activity which resulted in Muller ejaculating on the floor. Minutes later the two

roommates returned. A.K. did not tell anyone about the incident until a few weeks

later.

                          Testimony Regarding D.M.’s Allegations7

         {¶21} D.M. testified that she was a student at Defiance College during the

2009-2010 academic year. She was friends with A.K. and she knew Muller.

During the fall semester, she started to develop feelings for Muller, but never had

sexual contact with him. She told him that she did not want to engage in sexual

relations with him while they were intoxicated. On September 18, 2009, she,

7
  As to D.M., Muller was charged in Count Eight with forcible rape in violation of R.C. 2907.02(A)(2),
defined as “[n]o person shall engage in sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force” and in Count Nine with sexual battery in violation of
R.C. 2907.03(A)(2) defined as “[n]o person shall engage in sexual conduct with another, not the spouse of
the offender, when * * * the offender knows that the other person’s ability to appraise the nature of or
control the other person’s own conduct is substantially impaired.” The jury ultimately found Muller guilty
of both charges.


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Case No. 4-11-09


A.K., and a few other people were drinking excessively in Muller’s dorm room.

She became heavily intoxicated to the extent that she was in and out of

consciousness throughout the night and remembers only “bits and pieces.” Id. at

p. 368. She testified that Muller starting kissing her, but she refused because they

were drunk. Muller started to remove her clothes, and she “blacked out for a little

bit.” Id. at p. 370. When she regained consciousness, Muller was having sex with

her. She testified that she was “batting at him” (Id.) but that she couldn’t push him

off of her because she did not have any strength as she was “passing out.” Id.

       {¶22} The next morning, D.M. woke up because Muller and his roommates

were getting ready for a football game. She went to Muller’s bed to find A.K., and

she climbed up into bed with her. D.M. testified that she noticed A.K.’s shorts

were on the other side of the room, so she climbed down and got them, and got

back into bed. The two girls fell back asleep in the bunk bed. Later in the

morning, they woke up and cleaned the dorm room. That evening, she and A.K.

returned to Muller’s dorm to celebrate one of his roommate’s birthdays. They

were all drinking again.

                     Testimony Regarding Michigan Incident

       {¶23} J.W. testified that she lives in Michigan and has never been a student

at Defiance College. She knows Muller because they attended the same high

school. She testified that in December 2009, she and some other friends went to a


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party with Muller where they consumed alcohol. Around 2:00 a.m. she fell asleep

on the couch and around 3:00 a.m. she woke up to Muller having sexual

intercourse with her. She testified that she told him to get off of her, that he stayed

there for a few more seconds and then got off of her. She ran into the bathroom

and then got one of her friends to drive her home immediately. When she got

home that night, she told her parents what had happened.

                           Detective Richards’ Testimony

       {¶24} Detective Dave Richards testified that he has been a detective with

the City of Defiance Police Department for 12 years. Detective Hess from the

Bloomfield, Michigan Police Department contacted him regarding an investigation

in Michigan involving Muller. This prompted him to contact Defiance College.

Detective Richards then interviewed Muller regarding allegations made by M.A.

As to M.A., Detective Richards stated that Muller told him that they had sex.

Muller also told him that M.A. was not participating, but that she did not say no.

Muller acknowledged that she was texting someone before and after the sexual

intercourse.

       {¶25} As to H.D., Detective Richards testified that Muller acknowledged

that he had sexual intercourse with her while she was intoxicated, but that it was

consensual as he specifically asked her if they could have sex without a condom.




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Muller said her response was that it was okay as long as he did not ejaculate inside

of her.

          {¶26} As to K.B., Detective Richards testified that Muller adamantly

denied any sexual contact with her. Muller told him he wanted to have sex with

her, but that he did not get the opportunity.

          {¶27} As to A.K., Muller acknowledged that she vomited from

overconsumption of alcohol, that he followed her into bed, and had sex with her.

Muller told Detective Richards that he assumed he could have sex with A.K. that

night because they had previously engaged in sexual intercourse on multiple

occasions. Muller admitted that it was wrong to have sex with AK. that night as

she was too drunk to consent.

          {¶28} As to D.M., Muller admitted to Detective Richards that he had sexual

intercourse with her while she was intoxicated, and that she had previously told

him she did not want to have sex when she was drunk or until they were in a

relationship.

          {¶29} After the State’s case-in-chief, the defense moved for a Crim.R. 29

motion for acquittal due to lack of evidence regarding use of force required for




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rape on Count One (alleged acts upon H.D.), Count Six (alleged acts upon A.K.),

and Count Eight (alleged acts upon D.M.).8 The trial court overruled the motion.

        {¶30} After the defense’s case-in-chief, the defense renewed its Crim.R. 29

motion for acquittal, which the trial court again denied. After deliberating, the

jury found Muller guilty of sexual battery as charged in Counts Two (alleged acts

upon H.D.), Seven (alleged acts upon A.K.), and Nine (alleged acts upon D.M.)

and of rape as charged in Count Eight (alleged acts upon D.M.).                                 The jury

acquitted Muller of all other charges. The trial court merged Counts Eight and

Nine for sentencing, and imposed a prison sentence of seventeen years. It is from

this judgment Muller appeals, asserting the following seven assignments of error

for our review.

                                    Assignment of Error No. I

        THE TRIAL COURT ERRED TO THE PREJUDICE OF
        APPELLANT BY DENYING APPELLANT’S MOTION FOR
        SEPARATE     TRIALS,    THEREBY      VIOLATING
        APPELLANT’S RIGHTS GUARANTEED BY THE FIFTH
        AND FOURTEENTH AMENDMENTS OF THE UNITED
        STATES CONSTITUTION AND ARTICLE I, SECTION TEN
        OF THE CONSTITUTION OF THE UNITED STATES.

                                   Assignment of Error No. II

        THE TRIAL COURT ERRED TO THE PREJUDICE OF
        APPELLANT BY PERMITTING [J.W.] TO TESTIFY ABOUT
        HER SEXUAL ENCOUNTER WITH APPELLANT IN

8
  The indictment also charged Muller with a fourth count of rape: Count Four, for the alleged acts upon
K.B. However, the trial transcript reveals that defense counsel did not include this count in his motion for
acquittal.

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Case No. 4-11-09


      MICHIGAN, THEREBY VIOLATING APPELLANT’S
      RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY
      THE FIFTH AND FOURTEENTH AMENDMENTS OF THE
      UNITED STATES CONSTITUTION AND COMPARABLE
      PROVISIONS OF THE OHIO CONSTITUTION.

                   Assignment of Error No. III

      THE TRIAL COURT ERRED TO THE PREJUDICE OF
      APPELLANT BY DENYING APPELLANT’S RULE 29
      MOTION FOR ACQUITTAL OF THE RAPE CHARGES
      BECAUSE INSUFFICIENT EVIDENCE OF “FORCE” WAS
      PRESENTED, THEREBY VIOLATING APPELLANT’S
      RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY
      THE FIFTH AND FOURTEENTH AMENDMENTS OF THE
      UNITED STATES CONSTITUTION AND COMPARABLE
      PROVISIONS OF THE OHIO CONSTITUTION.

                   Assignment of Error No. IV

      THE TRIAL COURT ERRED TO THE PREJUDICE OF
      APPELLANT BY PROHIBITING APPELLANT FROM
      INTRODUCING       OPINION     EVIDENCE       OF
      UNTRUTHFULNESS IN VIOLATION OF OHIO RULES OF
      EVIDENCE 608(A) AND OF APPELLANT’S RIGHT TO DUE
      PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND
      FOURTEENTH AMENDMENTS OF THE UNITED STATES
      CONSTITUTION AND COMPARABLE PROVISIONS OF
      THE OHIO CONSTITUTION.

                    Assignment of Error No. V

      THE TRIAL COURT ERRED BY GIVING INCORRECT
      INSTRUCTION OF LAW TO JURORS AS IT RELATES TO
      OPINION EVIDENCE IN VIOLATION OF APPELLANT’S
      RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY
      THE FIFTH AND FOURTEENTH AMENDMENTS OF THE
      UNITED   STATES    CONSTITUTION, COMPARABLE
      PROVISIONS OF THE OHIO CONSTITUTION, AND
      EVIDENCE RULE 608.

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                           Assignment of Error No. VI

      APPELLANT’S CONVICTION FOR SEXUAL BATTERY IN
      COUNT SEVEN OF THE INDICTMENT WAS AGAINST
      THE MANIFEST WEIGHT OF THE EVIDENCE.

                          Assignment of Error No. VII

      THE TRIAL COURT ERRED BY DENYING APPELLANT’S
      MOTION    FOR   JUDGMENTS    NOTWITHSTANDING
      VERDICTS BECAUSE INSUFFICIENT EVIDENCE WAS
      PRESENTED AT TRIAL THAT THE APPELLANT WAS
      NOT THE SPOUSE OF ANY OF THE COMPLAINING
      WITNESSES AT THE TIME OF THE ALLEGED OFFENSES,
      IN VIOLATION OF APPELLANT’S RIGHT TO DUE
      PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND
      FOURTEENTH AMENDMENTS OF THE UNITED STATES
      CONSTITUTION AND COMPARABLE PROVISIONS OF
      THE OHIO CONSTITUTION.

                            Assignment of Error No. I

      {¶31} In his first assignment of error, Muller argues that the trial court

erred by denying his motion to sever the counts of the indictment and hold

separate trials on the counts pertaining to each complaining witness.       Muller

argues first, that joinder was improper pursuant to Crim.R. 8 as each sex offense

involved different witnesses, occurred at separate times, and involved different

circumstances.   Second, Muller argues that this was prejudicial error as the

evidence of other crimes would be inadmissible at trial if the counts were severed.

Third, Muller argues that the evidence was not simple and direct as the jury was

confused about which alleged victim corresponded with which counts.

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                                         Law

       {¶32} Crim.R. 8(A) permits a court to join multiple charges against a

defendant if the charges “are of the same or similar character * * *.” As a general

rule, joinder is favored under Crim.R. 8(A) to provide for judicial efficiency.

Crim.R. 14 provides that if it appears that a defendant is prejudiced by joinder of

offenses the court shall order separate trials of counts or provide such other relief

as justice requires. Thus, the trial court is required to sever the charges when

prejudice will result from joinder of offenses at trial.

       {¶33} In order to prevail on a claim that the trial court erred in denying his

motion to sever, the defendant has the burden of demonstrating

       (1) that his rights were prejudiced, (2) that at the time of the motion
       to sever he provided the trial court with sufficient information so that
       it could weigh the considerations favoring joinder against the
       defendant’s right to a fair trial, and (3) that given the information
       provided to the court, it abused its discretion in refusing to separate
       the charges for trial. State v. Schaim, 65 Ohio St.3d 51, 59 (1992),
       citing State v. Torres, 66 Ohio St.2d 340 (1981), syllabus.

       {¶34} A defendant’s failure to renew the Crim.R. 14 motion for severance

at the close of the State’s case or at the close of all evidence at trial results in

waiver on appeal. State v. Howard, 3d Dist. No. 9-10-50, 2011-Ohio-3524, ¶ 82,

citing State v. Miller, 105 Ohio App.3d 679 (4th Dist. 1995); State v. Lott, 51 Ohio

St.3d 160 (1990); State v. Clark, 2d Dist. No. 1078 (May 21, 1980); State v.

Ruffin, 6th Dist. No. L-93-347 (Oct. 28, 1994), citing State v. Owens, 51 Ohio


                                          -19-
Case No. 4-11-09


App.2d 132 (9th Dist. 1975); State v. DiCarlo, 7th Dist. No. 02 CA 228, 2004-

Ohio-5118, citing State v. Boyd, 8th Dist. Nos. 82921, 82922, 82923, 2004-Ohio-

368, ¶ 18, State v. Williams, 10th Dist. Nos. 02AP-730, 02AP-731, 2003-Ohio-

5204; State v. Appenzeller, 11th Dist. No. 2006-L-258, 2008-Ohio-7005, ¶ 75; but

see State v. Miller, 5th Dist. No. 2003CA00273, 2004-Ohio-3716, fn.1 (addressing

the case on the merits rather than applying waiver), State v. Sapp, 105 Ohio St.3d

104, 114, 2004-Ohio-7008 (addressing the case on the merits as the State failed to

argue waiver).

                                     Prejudice

       {¶35} With respect to the first prong of the analysis, it is the defendant’s

burden to affirmatively show that his rights were prejudiced by the joinder. Torres

at 343, citing State v. Roberts, 62 Ohio St.2d 170, 175 (1980). Specifically, the

defendant has “the burden of furnishing the trial court with sufficient information

so that it can weigh the considerations favoring joinder against the defendant’s

right to a fair trial.” Id., citing Opper v. United States, 348 U.S. 84, 95, 75 S.Ct.

158, 165 (1954).

       {¶36} The State can overcome a showing of prejudice by showing that

either (1) the evidence of other crimes would be admissible even if the counts

were severed, and (2) the evidence of each crime is simple and distinct. State v.

Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764, ¶ 27, citing Schaim, 65 Ohio


                                        -20-
Case No. 4-11-09


St.3d at 59. “Moreover, [i]f the evidence of other crimes would be admissible at

separate trials, any ‘prejudice that might result from the jury’s hearing the

evidence of the other crime in a joint trial would be no different from that possible

in separate trials,’ and a court need not inquire further.” Id., citing Schaim at 59.

                                       Abuse of Discretion

        {¶37} With respect to the third prong of the analysis, a trial court will be

found to have abused its discretion when its decision is contrary to law,

unreasonable, not supported by the evidence, or grossly unsound. See State v.

Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18, citing Black’s Law Dictionary

11 (8th Ed.2004). When applying the abuse of discretion standard, a reviewing

court may not simply substitute its judgment for that of the trial court. State v.

Nagle, 11th Dist. No. 99-L-089 (June 16, 2000), citing Blakemore v. Blakemore, 5

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

                                              Analysis

        {¶38} We hold that Muller has waived the issue of severance on appeal by

failing to renew his motion to sever at any point during the trial. On January 12,

2011, Appellant filed a motion for relief from prejudicial joinder (“Motion to

Sever”), and a hearing on the matter was held on January 19, 2011. The trial court

denied the Motion to Sever.9 The case proceeded to trial in February 2011.


9
  Trial commenced on February 28, 2011 during which the trial court stated that it had previously denied
the Motion to Sever. On March 24, 2011, the trial court entered judgment, denying the Motion to Sever.

                                                 -21-
Case No. 4-11-09


Muller did not renew his Motion to Sever at the close of the State’s evidence or at

the close of all evidence. Therefore, Muller has waived the issue of severance.

         {¶39} Although an argument of plain error might have been available to the

Appellant, he has chosen not to argue plain error. Instead, his argument is limited

specifically to abuse of discretion. If we were to review the issue of severance for

an abuse of discretion, assuming arguendo that the issue was not waived, we

would nonetheless overrule the first assignment of error as Muller has failed to

demonstrate the second prong of the three-part test outlined in Schaim: that at the

time of the motion to sever he provided the trial court with sufficient information

so that it could weigh the considerations favoring joinder against the defendant’s

right to a fair trial.10 Appellant bears the burden of producing an adequate record

on appeal, including any transcript required to evaluate the assignment of error.11

In re Predmore, 187 Ohio App.3d 100, 111, 2010-Ohio-1626 (3d Dist.), citing

State v. West, 3d Dist. No. 2-06-04, 2006-Ohio-5834, ¶ 51, 53; App.R. 9(B). The

record before us is devoid of a transcript or any other evidence demonstrating the

information Muller presented to the trial court prior to or during the hearing on the

Motion to Sever. Without the transcript and evidence presented in support of the

10
   On appeal, Muller contends that the denial of the Motion to Sever was an abuse of discretion, not that the
trial court committed plain error by failing to sua sponte sever the counts at the close of the evidence at
trial, as the State contends. Had Muller argued the latter, we would then review the evidence introduced at
trial employing a plain error standard of review. Because Muller has elected to argue abuse of discretion in
denying the motion to sever, we are restricted to reviewing the evidence in the record from the hearing on
the Motion to Sever.
11
    The record reveals that Muller ordered the transcript of “all pre-trial hearings” in the Motion for
Transcripts. The order, nonetheless, does not alleviate Muller of his burden to produce the transcript.

                                                   -22-
Case No. 4-11-09


Motion to Sever, we are unable to consider the merits of Muller’s argument that

the trial court abused its discretion. We cannot find, therefore, that the trial court

abused its discretion in denying the Motion to Sever.

       {¶40} Accordingly, Appellant’s first assignment of error is overruled.

                             Assignment of Error No. II

       {¶41} In his second assignment of error, Muller contends that the trial court

committed prejudicial error by allowing J.W. to testify during the State’s case-in-

chief regarding a similar occurrence in Michigan.           Muller argues that her

testimony constituted inadmissible other acts evidence, did not serve any

legitimate purpose under R.C. 2945.59 or Evid.R. 404(B), and should have been

excluded as its probative value was outweighed by its prejudicial effect pursuant

to Evid.R. 403(A).

       {¶42} “As a general rule, evidence of previous or subsequent criminal acts,

wholly independent of the criminal offense for which a defendant is on trial, is

inadmissible.” State v. Thompson, 66 Ohio St.2d 496, 497 (1981), citing State v.

Wilkinson, 64 Ohio St.2d 308, 314 (1980), State v. Curry, 43 Ohio St.2d 66, 68-69

(1975), State v. Burson, 38 Ohio St.2d 157, 158 (1974), State v. Hector, 19 Ohio

St.2d 167 (1969), paragraph one of the syllabus.          Evidence of other acts is

admissible if (1) there is substantial proof that the alleged other acts were

committed by the defendant, (2) the evidence tends to prove motive, opportunity,


                                        -23-
Case No. 4-11-09


intent, preparation, plan, knowledge, identity, or absence of mistake or accident,

and (3) that the other acts evidence is relevant to the proof of guilt of the defendant

of the offense in question. Curry at 69, citing Burson at 158; State v. Lowe, 69

Ohio St.3d 527, 530 (1994), citing State v. Broom, 40 Ohio St.3d 277, 282-283

(1988); Evid.R. 404(B); R.C. 2945.59.

       {¶43} The admission of evidence lies within the discretion of the trial court

and a reviewing court will not disturb the evidentiary decisions of a trial court

absent an abuse of discretion that resulted in material prejudice. State v. Heft, 3d

Dist. No. 8-09-08, 2009-Ohio-5908, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64

(2001), citing State v. Maurer, 15 Ohio St.3d 239 (1984); State v. Morris, __ Ohio

St. __ , 2012-Ohio-2407, ¶ 22.

       {¶44} We hold that the trial court did not abuse its discretion in admitting

J.W.’s testimony. As to the first issue, it is undisputed that there is substantial

proof that Muller engaged in the sexual conduct with J.W. The next inquiry is

whether any of the matters enumerated in Evid.R. 404(B) or R.C. 2945.59 is a

material issue and if so, whether the sexual encounter with J.W. tends to prove the

enumerated matter. As both the trial court and the State fail to specify which

enumerated matter applies, this court has been tasked with examining every

enumerated matter. Upon review, we hold that the trial court did not abuse its

discretion in admitting J.W.’s testimony for purposes of intent.


                                         -24-
Case No. 4-11-09


                                        Intent

       {¶45} As a preliminary matter, other acts testimony relating to the intent of

the defendant is admissible if it’s a material element of the offense charged.

Curry, 45 Ohio St.2d at 724. It’s a material element if the statute defining the

offense requires a particular intent. Id.

       {¶46} Muller was charged with multiple counts of sexual battery as defined

in R.C. 2907.03(A)(2) as “[n]o person shall engage in sexual conduct with

another, not the spouse of the offender, when * * * the offender knows that the

other person’s ability to appraise the nature of or control the other person’s own

conduct is substantially impaired.” Muller was also charged with forcible rape as

defined in R.C. 2907.02(A)(2) as “[n]o person shall engage in sexual conduct with

another when the offender purposely compels the other person to submit by force

or threat of force.” Both of these statutes contain an intent element, and therefore,

Muller’s intention to commit the crimes becomes relevant to prove his guilt.

       {¶47} The next inquiry is whether the intent element is a material issue and

if so, whether J.W.’s testimony is probative of, or tends to prove, his intent.

Determining what is material pursuant to R.C. 2945.59, relies upon “the theory of

the case as presented by the prosecution and the defense.” State v. Sinclair, 2d

Dist. No. 2002-CA-33, 2003-Ohio-3246, ¶ 32, citing State v. Griffin, 142 Ohio

App.3d 65, 72 (1st Dist. 2001).


                                            -25-
Case No. 4-11-09


        {¶48} With respect to the sexual battery charges for H.D., A.K., and D.M.,

Muller asserted a defense of consent.12 Muller did not deny the sexual conduct or

that he knew the girls were intoxicated. Detective Richards’ testified that Muller

told him the sexual conduct was consensual. With respect to H.D., testimony

revealed that she said it was okay to have sexual intercourse without a condom as

long as Muller did not ejaculate inside of her. With respect to A.K., Detective

Richards testified that Muller assumed he could have sex with her due to their

prior sexual history. With respect to D.M., again Muller’s defense was generally

one of consent. Thus, Muller’s defense to the sexual battery charges was that he

did not intend to commit sexual battery, but that he intended to have consensual

sexual intercourse with H.D., A.K., and D.M. The element of intent was therefore

a material issue at trial. See State v. Gardner, 59 Ohio St.2d 14 (1979) (intent was

a material fact in issue in forcible rape trial where defense of consent was

asserted).

        {¶49} As to the forcible rape charge relative to D.M., Muller did not deny

the sexual conduct or that he knew she was intoxicated. Rather, Muller argued in

his motion for acquittal that the State presented insufficient evidence on the

element of force. Therefore, with respect to the rape charge, Muller argued lack of



12
  We address the admissibility of J.W.’s testimony with respect to these three complaining witnesses only
as Muller was acquitted of the charges relative to the remaining two complaining witnesses, M.A. and
K.B..

                                                 -26-
Case No. 4-11-09


force. Again, intent is a material issue as to whether he intended to engage in

consensual sexual conduct or forcible rape. See Id.

       {¶50} In order for J.W.’s testimony to be relevant to the issue of intent, it

“must have such a temporal, modal and situational relationship with the acts

constituting the crime charged that evidence of the other acts discloses purposeful

action in the commission of the offense in question.” Gardner at 20, citing

Burson, 38 Ohio St.2d at 159 (evidence of prior rape was admissible to establish

the defendant’s intent to commit the charged rape); see e.g. State v. Goodrum, 8th

Dist. No. 55403 (May 18, 1989) (although occurring six years apart, the striking

similarities of the two rapes were probative of intent and disclose purposeful

action in the commission of the second rape).

       {¶51} We find J.W.’s testimony of Muller’s sexual conduct has a temporal,

modal, and situational relationship with the acts constituting the crimes charged.

In all cases, the victims had been drinking heavily at parties where Muller was

present. In all cases, Muller was either staying the night at the same residence as

the victims or had access to where they were sleeping. In all cases, the victims

testified that they were either “passed out” (Trial Tr., p. 227), “passing in and out

of consciousness” (Trial Tr., p. 368), or too sick and “didn’t want to move” (Trial

Tr., p. 319) due to overconsumption of alcohol, which is when Muller had access

to them. The stark similarity between the sequence of events that occurred in the


                                        -27-
Case No. 4-11-09


acts charged and the prior act indicate a modal and situational relationship.

Further, there was a temporal relationship as all of the acts constituting the crimes

charged occurred between February and September of 2009. The acts testified to

by J.W. occurred in December of 2009. Therefore, the other acts evidence as

testified to by J.W. is probative of Muller’s intentional conduct in the commission

of the instant offenses. Accordingly, we find no error in the admission of J.W.’s

other acts testimony and overrule the second assignment of error.

                                    Assignment of Error No. III

         {¶52} In his third assignment of error, Muller argues that the trial court

committed prejudicial error by denying his Crim.R. 29 motion for acquittal of the

four rape charges as there was insufficient evidence of force.13                            Specifically,

Muller challenges the denial of the motion for acquittal with respect to Count

Eight of the indictment, as that was the sole rape charge on which the jury entered

a guilty verdict.        Muller argues that although there was testimony that D.M.

physically protested by “batting at him,” this is nonetheless insufficient to

establish force.

         {¶53} Under Crim.R. 29(A), a court shall not order a judgment of acquittal

if the evidence is such that reasonable minds can reach different conclusions as to

whether each material element of a crime has been proven beyond a reasonable


13
  As noted above, the trial transcript reveals that the motion for acquittal was made as to only three of the
rape charges.

                                                   -28-
Case No. 4-11-09


doubt. State v. Bridgeman, 55 Ohio St.2d 261, 263-264 (1978).              A motion

for acquittal tests the sufficiency of the evidence. State v. Miley, 114 Ohio App.3d

738, 742 (4th Dist. 1996).

       {¶54} When an appellate court reviews a record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d

384, 2005-Ohio-2282, ¶ 47, citing State v. Jenks, 61 Ohio St.3d 259 (1991),

superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89 (1997). Sufficiency is a test of adequacy, State v.

Thompkins, 78 Ohio St.3d 380, 386 (1997), and the question of whether evidence

is sufficient to sustain a verdict is one of law. State v. Robinson, 162 Ohio St. 486

(1955), superseded by state constitutional amendment on other grounds as stated

in Smith.

       {¶55} We hold that the evidence was sufficient to establish every element

of the offense of rape in violation of R.C. 2907.02(A)(2), which provides that“[n]o

person shall engage in sexual conduct with another when the offender purposely

compels the other person to submit by force or threat of force.”

       {¶56} As Muller concedes that the sexual conduct occurred with D.M., the

threshold issue is whether there was sufficient evidence to establish force, as a


                                        -29-
Case No. 4-11-09


matter of law.14 The sole testimony presented on the element of force was the

following:

           A: Okay. He continued to kept (sic) kissing me and I was like I
           don’t want to do anything, I – I just want to go to sleep; I just want
           to go [to] sleep. He started taking off my clothes. I don’t really re—
           I blacked out for a little bit. When I came to and I was conscious,
           like he was –

           Q: Conscious, you mean you were aware that something was
           happening?

           A: Yeah, I was aware something was happening to me. He was on
           top of me like having sex with me. I was batting at him like I don’t,
           like no, but I couldn’t shove him off because I literally like did not
           have any strength like I was just passing out. Trial Tr., p. 370.

           {¶57} The Revised Code defines force as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.”

R.C. 2901.01(A)(1). The amount of force required in forcible rape is that which is

necessary to overcome the will of the victim. See e.g. State v. Euton, 3d Dist. No.

2-06-35, 2007-Ohio-6704, ¶ 43, State v. Smelcer, 89 Ohio App.3d 115, 126 (8th

Dist. 1993). The amount of force and violence necessary to commit the offense of

rape is a relative term, depending on the age, size, and strength of the parties and

their relationship to one another. State v. Eskridge, 38 Ohio St.3d 56, 58 (1988).

           {¶58} In the present case, the testimony revealed that D.M. was heavily

intoxicated and was passing in and out of consciousness as Muller was committing

the sexual actions. She testified that she “batted at him,” but couldn’t push him
14
     It is undisputed that there was no testimony regarding threat of force.

                                                       -30-
Case No. 4-11-09


off because she lacked strength. Trial Tr., p. 370. According to D.M., Muller

persisted in engaging in sexual intercourse with her over her physical

protestations. Viewing the testimony and evidence presented at trial in a light

most favorable to the prosecution, a rational trier of fact could have found that the

element of force was established beyond a reasonable doubt as Muller persisted in

engaging in sexual intercourse with D.M. over her physical protestations.

        {¶59} Accordingly, we overrule the third assignment of error.

                                  Assignment of Error No. IV

        {¶60} In his fourth assignment of error, Muller argues that the trial court

erred by prohibiting him from introducing opinion evidence of untruthfulness in

violation of Ohio Rule of Evidence 608(A).                    Muller highlights two specific

instances in which his trial counsel sought to introduce opinion evidence: first,

during the cross-examination of Detective Richards and second, during the direct

examination of Kaye Bockbrader. According to Appellant, the exclusion of such

evidence constitutes prejudicial error.15

        {¶61} A trial court has broad discretion to determine the admissibility of

lay witness opinion testimony, and a reviewing court will not reverse the trial

court’s decision absent an abuse of discretion. City of Urbana ex rel. Newlin v.


15
  Although not assigned as error, Muller also argues that the trial court improperly excluded questions
asked to Detective Richards as hearsay. Because this argument is not properly assigned and argued
pursuant to App.R. 16(A)(7), we decline to address it as provided by App.R. 12(A)(2).


                                                -31-
Case No. 4-11-09


Downing, 43 Ohio St.3d 109, 113 (1989); State v. King, 3d Dist. No. 9-06-18,

2007-Ohio-335, ¶ 44, citing State v. Auerbach, 108 Ohio St. 96, 98 (1923). As

stated above, a trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18, citing

Black’s Law Dictionary 11 (8th Ed.2004).

       {¶62} We hold that the trial court did not abuse its discretion in excluding

the testimony at issue. We note that Appellant’s argument under this assignment

of error focuses solely on whether opinion testimony is admissible under Evid.R.

608(A), and that neither party cites relevant case law on the matter. However,

there is well-established Ohio precedent that generally prohibits the use of opinion

testimony regarding a witness’ untruthfulness. King at ¶ 45-50; State v. Hupp, 3d

Dist. No. 1-08-21, 2009-Ohio-1912, ¶ 38-39 (Rogers, J., concurring separately); In

re Brooks, 5th Dist. No. 07-CA-74, 2008-Ohio-119, ¶ 60; State v. Black, 8th Dist.

No. 92806, 2010-Ohio-660, ¶ 31, citing State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, ¶ 122 (police officer cannot give his opinion that accused is untruthful),

State v. Boston, 46 Ohio St.3d 108 (1989) overruled on other grounds (expert

cannot testify regarding opinion of victim’s truthfulness); but see State v. Crotts,

104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 27 (Ohio rules of evidence allow for the

use of opinion evidence as long as it is rationally based on the perception of the


                                       -32-
Case No. 4-11-09


witness and helpful to a clear understanding of the lay witness’ testimony or

determination of a fact in issue; opinion evidence is not excludable “solely

because it embraces an ultimate issue to be decided by the trier of fact”).

       {¶63} The first alleged error occurred when defense counsel cross-

examined Detective Richards regarding his opinion of H.D.’s and D.M’s prior

sexual conduct with Muller. The testimony elicited during the proffer, outside of

the jury’s presence, established that Detective Richards discovered during his

investigation that H.D. and D.M. had sexual contact with Muller prior to the nights

in issue, but that they did not disclose that information to Detective Richards.

During the proffer, Detective Richards testified that throughout his investigation

he formed an opinion that D.M. and H.D. had in fact engaged in prior consensual

sexual conduct with Muller. Trial Tr., p. 418-421. The trial court excluded this

testimony, stating, “[w]hether he formed an opinion of this, that, or the other thing

is immaterial to the issues at trial * * *.” Id. at 421.

       {¶64} The second alleged error occurred when defense counsel called Kaye

to testify on direct examination regarding her opinion about whether K.B. was

telling the truth about the acts that gave rise to the sexual battery and rape charges.

The following took place:

       Q: Did you form an opinion about whether or not [K.B.] was telling
       the truth?

       A: Yes.

                                          -33-
Case No. 4-11-09



      Mr. Murray: Objection, Your Honor. It goes to –

      Mr. Hill: I can ask her what her opinion was.

      The court: No, you can’t. Sustained. Trial Tr., p. 457.

      {¶65} In light of the ample case law that favors the exclusion of this type of

opinion evidence, we conclude that the trial court did not abuse its discretion in

excluding Detective Richards’ and Kaye’s opinion testimony. Accordingly, we

overrule Muller’s fourth assignment of error.

                            Assignment of Error No. V

      {¶66} In his fifth assignment of error, Muller argues that the trial court

erred by incorrectly instructing the jury regarding opinion evidence during closing

arguments. During his closing argument, Muller’s trial counsel referenced Kaye’s

opinion of K.B.’s untruthfulness. As stated in the preceding assignment of error,

this evidence had been excluded by the trial court during Defendant’s direct

examination of Kaye. Nonetheless, the trial court sustained the State’s objection

during Defendant’s closing argument, and gave the following jury instruction:

      Some explanation is in order. It is a rule of evidence that was the
      subject of that objection. The witness is not permitted to express an
      opinion regarding the truthfulness of another witness. That’s your
      job to determine what testimony is worthy of belief and what
      testimony is not worthy of belief. That’s why we don’t allow the
      opinion. Trial Tr., p. 591-592.




                                       -34-
Case No. 4-11-09


       {¶67} Ultimately, the jury acquitted Muller of the sexual battery and rape

charges as they related to K.B. On appeal, Muller argues that this instruction was

erroneous and prejudicial.

       {¶68} As an initial matter, we note that Muller did not object to the

instructions given by the trial court. “The failure to object to a jury instruction

constitutes a waiver of any claim of error relative thereto, unless, but for the error,

the outcome of the trial clearly would have been otherwise.” State v. Rick, 3d

Dist. No. 9-08-27, 2009-Ohio-785, ¶ 31, citing State v. Underwood, 3 Ohio St.3d

12 (1983), syllabus; see also Crim.R. 30(A). Pursuant to Crim.R. 52(B), “[p]lain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-

Ohio-68. In order to have plain error under Crim.R. 52(B), there must be an error,

the error must be an “obvious” defect in the trial proceedings, and the error must

have affected “substantial rights.” Id. Plain error is to be used “with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Id. Plain error exists only in the event that it can be said

that “but for the error, the outcome of the trial would clearly have been otherwise.”

State v. Biros, 78 Ohio St.3d 426, 436 (1997); see State v. Johnson, 3d Dist. No. 2-

98-39 (June 30, 1999).




                                         -35-
Case No. 4-11-09


       {¶69} In the instant case, we hold that the jury instruction did not constitute

plain error. First, given our resolution of the preceding assignment or error, the

trial court did not commit prejudicial error by excluding this evidence, so it did not

err in instructing the jury as to the same. Second, the opinion testimony at issue

was never introduced at trial. The jury instruction regarding evidence the jury did

not hear, therefore, neither affected Muller’s substantial rights nor resulted in a

manifest miscarriage of justice. Further, there is no indication that without the

jury instruction, the outcome at trial would have been otherwise, as the jury

ultimately acquitted Muller of the sexual battery and rape charges as they related

to K.B.

       {¶70} Accordingly, we overrule Muller’s fifth assignment of error.

                            Assignment of Error No. VI

       {¶71} In his sixth assignment of error, Muller asserts that the finding of

guilt in Count Seven, sexual battery for the acts alleged by A.K., was against the

manifest weight of the evidence. Muller argues that A.K. was aware and had the

ability to speak during the sexual conduct in question, but chose not to resist. He

also argues that because she returned the following day and engaged in consensual

sexual conduct with Muller, the finding of guilt is against the manifest weight of

the evidence.




                                        -36-
Case No. 4-11-09


      {¶72} When      an   appellate   court   analyzes    a   conviction    under

the manifest weight standard it must review the entire record, weigh all of the

evidence and all of the reasonable inferences, consider the credibility of the

witnesses, and determine whether, in resolving conflicts in the evidence, the fact

finder clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio

St.3d at 387, superseded by constitutional amendment on other grounds as stated

by Smith, 80 Ohio St.3d 89, quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist. 1983). Only in exceptional cases, where the evidence “weighs heavily

against the conviction,” should an appellate court overturn the trial court’s

judgment. Id.

      {¶73} Under a manifest weight standard, an appellate court sits as a

“thirteenth juror” and may disagree with the fact finder’s resolution of the

conflicting testimony. Id. Although the appellate court may act as a thirteenth

juror, it should give due deference to the findings made by the fact-finder.

Thompkins at 388.

      {¶74} The subject of the instant assignment of error is the finding of guilt

on a sexual battery charge in violation of R.C. 2907.03(A)(2), which provides that

“[n]o person shall engage in sexual conduct with another, not the spouse of the

offender, when * * * the offender knows that the other person’s ability to appraise


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the nature of or control the other person’s own conduct is substantially impaired.”

As Muller did not contest engaging in the sexual conduct with A.K., the remaining

issue is whether he knew that A.K.’s ability to appraise the nature of or control her

conduct was substantially impaired.16

           {¶75} A.K. testified that she consumed alcohol to the extent that she

became ill and vomited. She estimated that on a scale of one to ten, one being

sober and ten being passed out/unconscious, she was about an eight. She also

stated that Muller assisted her in the bathroom and told her she could lie in the top

bunk bed. She testified that she climbed into the top bunk bed. Muller followed

her, removed her shorts, and had sexual intercourse with her. She continued to

testify that she “didn’t feel anything [be]cause [she] was just so sick. [She] didn’t

want to move. [She] didn’t want to do anything. * * * [She] just laid there.” Trial

Tr., p. 319. She also testified that two other people were in the bedroom while this

occurred, and that she didn’t yell for help because she “was feeling that sick.

[She] didn’t feel good. [She] was just miserable, just laying there.” Trial Tr., p.

328. She testified that she knew what was happening and she could speak, but that

she didn’t want to say anything because she was scared and sick.

           {¶76} She then testified that the following day she stayed at Muller’s dorm

to clean it, and then returned that night. She testified that while she was there that

night, she engaged in consensual sexual conduct with Muller in the living room.
16
     For a discussion of the spouse element, see our discussion in Assignment of Error No. VII

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       {¶77} Detective Richards testified that Muller admitted to him that he

followed A.K. into the bunk bed after she had gotten sick and then had sexual

intercourse with her. He also testified that Muller told him that he and A.K. had

previously engaged in sexual intercourse three or four times. Finally, he testified

that Muller acknowledged that A.K. was too drunk to consent and that it was

wrong to have sex with her under those conditions.

       {¶78} Given the foregoing testimony, the jury could infer that A.K.’s

ability to   control   her    conduct   was    substantially impaired   given   her

overconsumption and vomiting, and that Muller knew she was in such condition as

he assisted her in the bathroom and followed her into the bunk bed. Therefore,

this is not the exceptional case where the fact finder clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed.

       {¶79} Accordingly, we overrule Muller’s sixth assignment of error.

                             Assignment of Error No. VII

       {¶80} In his seventh assignment of error, Muller argues that the trial court

erred in denying his motion for judgments notwithstanding verdicts (“JNOV”)

because the State presented insufficient evidence at trial regarding the element in

the sexual battery statute that the defendant not to be the spouse of the victim. He

contends that the State failed to present any evidence that Muller was not the




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spouse of any of the complaining witnesses at trial, and as such, the trial court

erred in denying the JNOV.

       {¶81} Appellate courts review a trial court’s ruling on a motion for JNOV

de novo. Ohio Dept. of Transp. v. Kewpee, Inc., 3d Dist. No. 1-08-03, 2008-Ohio-

5197, ¶ 30, citing Natl. City Bank v. Rhoades, 150 Ohio App.3d 75, 87, 2002-

Ohio-6083 (2d Dist.). In ruling on a motion for JNOV, “the evidence adduced at

trial and the facts established by admissions in the pleadings and in the record

must be construed most strongly in favor of the party against whom the motion is

made, and, where there is substantial evidence to support his side of the case, upon

which reasonable minds may reach different conclusions, the motion must be

denied.” Id., citing Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271,

275 (1976).

       {¶82} Upon review, we find Muller’s argument to be meritless. “When the

state fails to affirmatively ask the victim whether she was the spouse of the

offender, [a trier of fact may] infer from the testimony or circumstances, if

sufficient, that a defendant and his victim are not married.” State v. Rainey, 2d

Dist. No. 23070, 2009-Ohio-5873, ¶ 30, citing State v. Brown, 8th Dist. No.

86577, 2006-Ohio-4584, ¶ 13. In the present case, the State presented evidence

that the victims were acquaintances with Muller as they had met at Defiance

College, either through social events or mutual friends. This evidence is legally


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sufficient to support an inference that Muller was not the spouse of any of the

victims.

       {¶83} Accordingly, we overrule Muller’s seventh assignment of error.

       {¶84} Having found no error prejudicial to the Appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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