[Cite as State v. McClellan, 2018-Ohio-3355.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                  :    JUDGES:
                                                :    Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                    :    Hon. William B. Hoffman, J.
                                                :    Hon. Criag R. Baldwin, J.
-vs-                                            :
                                                :
WILLIAM PAUL MCCLELLAN,                         :    Case No. 2017CA00193
                                                :
        Defendant - Appellant                   :    OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2017-
                                                     CR-0568




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    August 20, 2018



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      GEORGE URBAN
Prosecuting Attorney                                 116 Cleveland Avenue NW, Suite 808
                                                     Canton, Ohio 44702
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00193                                                  2

Baldwin, J.

        {¶1}   Appellant, William Paul McClellan, was convicted by a jury of one count of

rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. He was sentenced

to life without the possibility of parole and declared a Tier III Sex Offender. He appeals

his conviction as well as evidentiary rulings of the trial court. Appellee is the State of

Ohio.


                     STATEMENT OF THE FACTS AND THE CASE

        {¶2}   Appellant was indicted and convicted of raping a seven year old child, A.B.,

the daughter of Amanda Nutt, Appellant’s cousin, while he was serving as a baby sitter.

        {¶3}   Ms. Nutt and her husband made arrangements for Nicole Wallace,

Appellant’s girlfriend, to watch their children while they were at work. Ms. Wallace helped

the older children get ready for school and then remained home with Ms. Nutt’s infant

daughter until Ms. Nutt or her husband arrived home. Appellant would often accompany

Ms. Wallace and tend to his and Ms. Wallace’s daughter while Ms. Wallace cared for Ms.

Nutt’s children. Appellant would watch the children if Ms. Wallace was unavailable.

January 25, 2017 was one of the dates that Appellant watched the children without Ms.

Wallace present.

        {¶4}   On January 25, 2017 Appellant sent all of the children to school with the

exception of A.B.. He told A.B. that she was going to stay home and help him care for

J.R.. Once the other children had left for school Appellant directed A.B to go to the couch,

lie down on her belly and pull her pants and underwear down to her ankles. At that point

he sexually assaulted A.B. and ejaculated on her buttocks.
Stark County, Case No. 2017CA00193                                                 3


       {¶5}   For reasons not explained, Appellant called Ms. Nutt and Ms. Wallace and

told them that A.B. could not find her shoes and was going to stay home from school. Ms.

Nutt insisted that A.B. had plenty of shoes and that Appellant was to take her to school.

Appellant complied and delivered A.B. to school at 9:54 AM.

       {¶6}   A.B. came home after school and went upstairs to change. She was

trembling, so her father asked her what happened. She described the assault and Mr.

Nutt relayed the same to Ms. Nutt. Ms. Nutt took A.B. to Mercy Medical Center at the

recommendation of law enforcement and then to Akron Children’s Hospital.

       {¶7}   Penny Daly, social worker at Akron Children’s Hospital, met the family and

began the protocol required for an allegation of sexual assault of a child. Ms. Daly taped

an interview of A.B. who repeated the allegations that she previously explained to her

mother. Thereafter a nurse practitioner, Megan Dahlheimer, recommended a physical

exam and collection of a sexual assault kit. A.B.’s underwear, purple and black long

sleeve shirt and purple stretch jeans were collected by law enforcement and a sexual

assault kit was collected.

       {¶8}   Detective Joseph Mongold of the Canton Police Department was assigned

to investigate the allegations of A.B. He visited A.B’s. school and learned she came in

late on January 25, 2017. He went to Appellant’s home on March 17, 2017 to speak with

Appellant but Appellant was watching his infant daughter. Instead, Appellant agreed to

come to the police station on March 20, 2017 where he participated in a videotaped

interview. During that interview Appellant admitted sodomizing A.B. His description of the

offense matched in all significant details with the story provided by A.B..
Stark County, Case No. 2017CA00193                                                  4


       {¶9}   As part of the investigation of the alleged sexual assault, DNA was collected

from the clothing of A.B.. That DNA and Appellant’s DNA were delivered to the Ohio

Bureau of Criminal Investigation. A test for male specific DNA, Y-STR, was completed on

A.B.’s clothing at 25 different locations. Erika Jimenez, an analyst in the DNA Unit,

testified that she was able to obtain a profile on 19 of those locations and all 19 were

consistent with Appellant’s DNA.

       {¶10} The Stark County Grand Jury indicted Appellant on one count of rape, in

violation of R.C. 2907.02 (A)(1)(b), a felony of the first degree. Because the victim was

under the age of 10, the count carried a potential imprisonment term of life without parole.

Appellant initially pled not guilty and then filed a motion to plead not guilty by reason of

insanity and requested a competency evaluation. The evaluator found Appellant

competent to stand trial and the motion to plead not guilty by reason of insanity was

withdrawn; the plea of not guilty remained and the case was set for trial.

       {¶11} On August 16, 2017 Appellant filed a motion to suppress his confession.

The motion was overruled but certain portions of the statement were deemed

inadmissible. The Appellee played Appellant’s recorded confession at trial with the

appropriate edits.

       {¶12} On September 8, 2017 Appellant filed a motion in limine to prohibit any

reference to prior convictions from 2000 and 2006 involving rape and sexual imposition.

Appellant also requested that the Appellant’s comments regarding comparison of the

victim’s genitals to his own daughter’s genitals be prohibited. The State complied and

made no reference to either of those issues during trial.
Stark County, Case No. 2017CA00193                                                        5


           {¶13} Prior to the commencement of the jury trial the victim was questioned by the

trial court for competency. The trial court found that A.B. understood the court’s questions

and the difference between the truth and a lie and found her competent to testify.

Appellant raised no objection to A.B.’s competency during this hearing or the trial.

           {¶14} Also prior to trial an Arnold hearing was conducted to address the

admissibility of statements made by A.B. to the social worker, Penny Daly and Megan

Dahlheimer, the nurse practitioner. The trial court ruled that Daly could testify to the

statements made by A.B. because they were made for the purpose of medical diagnosis

and treatment, but nurse Dahlheimer could not give an opinion regarding whether the

victim was sexually abused. While Ms. Daly did testify, the Appellee also played for the

jury the videotaped interview of A.B. as conducted by Ms. Daly. Nurse Dahlheimer did not

testify.

           {¶15} Appellant did not object to playing the videotape of A.B. for the jury until that

point in the tape where A.B. made statements regarding prior instances of abuse by

Appellant. The trial court dismissed the jury and heard argument from counsel regarding

whether the full tape should be played. After reviewing the video, the medical records,

and the testimony of Penny Daly concerning the disclosures made to her during the

interview of A.B., the trial court allowed the tape to be heard by the jurors after a limiting

instruction and allowed the defense the opportunity to recall and question the victim about

those other acts.

           {¶16} Appellant moved for acquittal after the state rested and, after that motion

was overruled, Appellant rested without presenting witnesses or recalling the victim. The

jury was instructed, completed its deliberations and found Appellant guilty. Appellant
Stark County, Case No. 2017CA00193                                                    6


returned to court on September 15, 2017 and was sentenced to life in prison without the

possibility of parole.

       {¶17} Appellant filed a notice of appeal on October 11, 2017 and submits four

assignments of error:

       {¶18} “I. THE TRIAL COURT ERRED BY FINDING A.B., A CHILD UNDER THE

AGE OF TEN, WAS COMPETENT TO TESTIFY.”

       {¶19} “II.   APPELLANT'S       CONVICTIONS        (SIC)    WERE     AGAINST        THE

SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶20} “III. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE THE

STATEMENTS MADE BY A.B. TO PENNY DALY BECAUSE THE STATEMENTS WERE

NOT MADE FOR THE PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.”

       {¶21} “IV. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE

PORTIONS OF THE VIDEO THAT INTRODUCED OTHER ACTS EVIDENCE IN

VIOLATION OF RULE 404(B) OF THE OHIO RULES OF EVIDENCE.”

                                        ANALYSIS

       {¶22} In his first assignment of error, Appellant contends that the trial court erred

when it found the victim, A.B., competent to testify. Appellant was offered the opportunity

to question A.B. during the competency hearing, but chose not to do so.              Further,

Appellant did not object to the presentation of A.B.’s testimony at any time during the trial.

For those reasons, we must review this assignment under the plain error standard.

       {¶23} Crim. R. 52(B) provides that “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” Notice

of plain error under this rule is to be taken with the utmost caution, under exceptional
Stark County, Case No. 2017CA00193                                                   7

circumstances and only to prevent a manifest miscarriage of justice. See: State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978); State v. Cooperrider, 4 Ohio St.3d 226, 448

N.E.2d 452 (1983).

       {¶24} The court conducted a hearing to establish the competency of A.B. as

follows:

       THE COURT: All right, we're on the record.

       The Court is now going to be voir diring (sic) the alleged victim in this case,

       [A.B.], relative to competency as required by law.

       BY THE COURT:

       Q. Good morning.

       A. Morning.

       Q. Good afternoon; it's almost 1:00.

       Q. How are you?

       A. Good.

       Q. And what's your name?

       A. [A.B].

       Q. How do you spell that last name?

       A. *****

       Q. Okay. And where do you live?

       A. Mi- I live in Minerva.

       Q. Okay. And how old are you?

       A. I'm eight.

       Q. Eight years old. When was your birthday?
Stark County, Case No. 2017CA00193                                          8


     A. March 5, 2009.

     Q. Okay. So this past March you just turned eight, right?

     A. (Nods affirmatively.)

     Q. And so you're going to school in Minerva?

     Is that right?

     A. (Nods affirmatively.)

     Q. Say, say your answers out loud, okay, so we have a record of them. So

     is that a yes?

     A. Yes.

     Q. Okay. And what grade are you in?

     A. Third grade.

     Q. Third grade. Do you like your teacher?

     A. Um-hum.

     Q. Just start, back to school?

     A. (Nods affirmatively.)

     Q. Is that a yes?

     A. Yes.

     Q. Yes. And what -- what's your favorite subject?

     A. Math.

     Q. Math. Not recess?

     A. Kind of.

     Q. Kind of. But you like math?

     A. (Nods affirmatively.)
Stark County, Case No. 2017CA00193                                                        9


     Q. Well, I'm going to ask you a couple questions now and I want you to tell

     me whether or not I'm telling you the truth or what I'm saying is somewhat -

     - seems wrong to you, okay.

     Look outside right now. Can you see through the blinds there?

     A. (Nods affirmatively.)

     Q. If I told you that it was raining, would that be the truth or a lie?

     A. A lie.

     Q. Because?

     A. It's not raining.

     Q. It's not raining; the sun's shining. And if I said the ceiling was black, would

     that be the truth or a lie?

     A. A lie.

     Q. And that's because?

     A. The ceiling ain't black.

     Q. Now, what happens when you tell a lie?

     A. You get in big trouble.

     Q. Okay. And you understand the importance of telling the truth?

     A. Um-hum.

     Q. And if you don't understand something that's asked of you, can you make

     sure that you say I don't understand?

     A. Yes.

     Q. Okay.

     THE COURT: Does anybody need to follow up any questions of the Court?
Stark County, Case No. 2017CA00193                                                         10


       MS. DONNELLY: Not from the State, Your Honor.

       MS. STOUT: No, Your Honor.

Tr. I, p. 175-178

       {¶25} The trial court then concluded that A.B. understood the difference between

the truth and a lie and the importance of telling the truth, leading the trial court to find her

competent to testify in the case. Appellant offered no objection or comment regarding this

finding.

       {¶26} Every person is competent to be a witness except those of unsound mind,

and children under ten years of age who appear incapable of receiving just impressions

of the facts respecting which they are examined, or of relating them truly. Evid.R. 601(A).

In determining whether a child under the age of ten is competent to testify, the trial court

must consider: (1) the child's ability to receive accurate impressions of fact or to observe

acts about which he or she will testify, (2) the child's ability to recollect those impressions

or observations, (3) the child's ability to communicate what was observed, (4) the child's

understanding of truth and falsity, and (5) the child's appreciation of his or her

responsibility to be truthful. State v. Frazier, 61 Ohio St.3d 247, 574 N.E.2d 483 (1991).

This court must find an abuse of discretion to reverse a finding of competency. State v.

Lewis, 4 Ohio App.3d 275, 448 N.E.2d 487 (3rd Dist.1982).

       {¶27} The Appellant concedes that the court’s line of questioning satisfies the

requirements for competency, but suggests that A.B.’s later testimony was inconsistent

and suggestive of some lack of competency.

       [I]t is not the role of the trial judge to determine that everything a child will

       testify to is accurate, but whether the child has the intellectual capacity to
Stark County, Case No. 2017CA00193                                                      11

       accurately and truthfully recount events. State v. Leach (Feb. 20, 2001),

       Clermont CA2000-05-033, unreported, at 5. Any inconsistencies between

       [A.B.’s] trial testimony and the testimony of other witnesses relate to [her]

       credibility, not [her] competency. See id.; State v. Rayburn (Apr. 24, 2000),

       Clinton CA99-03-005, unreported, at 6. [A.B.’s] credibility was for the jury's

       consideration.


State v. Jones, 12th Dist. Brown No. CA2000-11-032, 2001 WL 1402638, *6


       {¶28} Based on A.B.’s testimony during the competency examination, we do not

find that the trial court abused its discretion by finding A.B. competent to testify under

Evid.R. 601 and the factors set forth in Frazier. Accordingly, Appellant's first assignment

of error is overruled.

       {¶29} In his second assignment of error, Appellant contends the conviction was

against the sufficiency and manifest weight of the evidence. In reviewing a record for

sufficiency, “the relevant inquiry is whether, after reviewing 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. Jenks, 61 Ohio St.3d

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

Ohio stated in State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997):

“With respect to sufficiency of the evidence, “‘sufficiency’ is a term of art meaning that

legal standard which is applied to determine whether the case may go to the jury or

whether the evidence is legally sufficient to support the jury verdict as a matter of law.”

Black's Law Dictionary (6 Ed.1990) 1433. See also, Crim.R. 29(A) (motion for judgment

of acquittal can be granted by the trial court if the evidence is insufficient to sustain a
Stark County, Case No. 2017CA00193                                                       12


conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally

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

124 N.E.2d 148 (1955). In addition, a conviction based on legally insufficient evidence

constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211,

2220, 72 L.Ed.2d 652, 663 (1982), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979).

      {¶30} Appellant was charged with one count of rape, a violation of R. C. 2907.02

(A)(1)(b) when the victim was under the age of 10. The elements of the offense are:

      No person shall engage in sexual conduct with another who is not the

      spouse of the offender or who is the spouse of the offender but is living

      separate and apart from the offender, when any of the following applies:

                                            ***

      (b) The other person is less than thirteen years of age, whether or not the

      offender knows the age of the other person.

                                            ***

      if the victim under division (A)(1)(b) of this section is less than ten years of

      age, in lieu of sentencing the offender to a prison term or term of life

      imprisonment pursuant to section 2971.03 of the Revised Code, the court

      may impose upon the offender a term of life without parole.



      {¶31} “Sexual conduct” is defined in R.C. 2907.01 (A) as including “the insertion,

however slight, of any part of the body or any instrument, apparatus, or other object into
Stark County, Case No. 2017CA00193                                                  13


the vaginal or anal opening of another. Penetration, however slight, is sufficient to

complete vaginal or anal intercourse.”

       {¶32} Appellant confessed to this offense and the victim corroborated his

confession by her testimony and by her statement to a social worker and those statements

provided evidence for each element of the offense. For those reasons, we conclude there

was sufficient evidence to support the conviction.

       {¶33} We likewise find that the verdict was not against the manifest weight of the

evidence. In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387 1997-

Ohio-52, 678 N.E.2d 541 (1997). Reversing a conviction as being against the manifest

weight of the evidence and ordering a new trial should be reserved for only the

“exceptional case in which the evidence weighs heavily against the conviction.” Id. We

note the weight to be given to the evidence and the credibility of the witnesses are issues

for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d 212 (1967). The trier

of fact “has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page.” Davis v. Flickinger,

77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.


       {¶34} The record contains nothing that would support a conclusion that “the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction
Stark County, Case No. 2017CA00193                                                   14


must be overturned and a new trial ordered.” Therefore, Appellant’s second assignment

of error is overruled.


       {¶35} Appellant’s third and fourth assignments of error object to the court’s ruling

regarding evidentiary issues, so we will address those assignments simultaneously. The

admission or exclusion of relevant evidence rests in the sound discretion of the trial court.

State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). As a general rule, all

relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. The term “abuse of

discretion” connotes more than an error of law or judgment; it implies that the court's

attitude is unreasonable, arbitrary, or unconscionable. Wilmington Steel Products, Inc. v.

Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). Absent an

abuse of discretion resulting in material prejudice to the defendant, a reviewing court

should be reluctant to interfere with a trial court's decision in this regard. State v. Sage,

31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).

       {¶36} Appellant contends, as his third assignment of error, that the admission into

evidence of the statements made by A.B. to social worker Penny Daly was erroneous

because the statements were not made for the purpose of medical diagnosis or treatment.

       {¶37} The Supreme Court of Ohio held that “[r]egardless of whether a child less

than ten years old has been determined to be competent to testify pursuant to **947

Evid.R. 601, the child's statements may be admitted at trial as an exception to the hearsay

rule pursuant to Evid.R. 803(4) if they were made for purposes of medical diagnosis or

treatment.” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944 (2007),

syllabus. In Muttart the court described a non-exhaustive list of considerations:
Stark County, Case No. 2017CA00193                                                    15


              The trial court's considerations of the purpose of the child's

       statements will depend on the facts of the particular case. At a minimum,

       we believe that a non-exhaustive list of considerations includes (1) whether

       the child was questioned in a leading or suggestive manner***; (2) whether

       there is a motive to fabricate, such as a pending legal proceeding such as

       a “bitter custody battle,” ***; and (3) whether the child understood the need

       to tell the physician the truth, ***. In addition, the court may be guided by

       the age of the child making the statements, which might suggest the

       absence **955 or presence of an ability to fabricate, and the consistency of

       her declarations. ***. In addition, the court should be aware of the manner

       in which a physician or other medical provider elicited or pursued a

       disclosure of abuse by a child victim, as shown by evidence of the proper

       protocol for interviewing children alleging sexual abuse. ***.


Muttart, at ¶ 49 (Internal citations and footnote omitted).


       {¶38} The trial court conducted an Arnold hearing on August 30, 2017 and

Appellee provided the testimony of Penny Daly, the social worker who performed the

forensic interview of A.B. and Meghan Dahlheimer, the nurse practitioner to whom Ms.

Daly relayed information for purposes of determining what medical treatment would be

needed. Appellant had the opportunity to cross-examine both witnesses. At the

conclusion of the evidence the trial court found that social worker Daly’s “interview,

statements attributed to the alleged victim, are admissible for diagnosis and treatment

purposes.” (August 30, 2017 Transcript of Hearing, pages 57-58). The court also noted

that there were no “Crawford issues” since the ruling was based on the alleged victim
Stark County, Case No. 2017CA00193                                                 16


testifying and being subject to cross-examination. The trial court was not willing to

sanction the testimony of Ms. Dahlheimer based upon her testimony at this hearing. Ms.

Dahlheimer did not testify at the trial.

       {¶39} During the Arnold hearing Ms. Daly repeatedly confirmed that the forensic

interview was completed to insure that A.B. received proper medical care. The details

gathered were conveyed to Nurse Dahlheimer who, during the Arnold hearing, confirmed

that her recommended treatment for A.B. (physical exam and collection of rape kit) was

based upon the details received from Ms. Daly.

       {¶40} Appellant first argues that because the video of the interview between Ms.

Daly and A.B. was not played at the Arnold hearing, the court erred by permitting the

Appellee to play the video for the jury. The video was not at issue at the Arnold hearing.

The trial court conducted that hearing only to determine if A.B.’s statements were

testimonial or made for the purposes of medical treatment and therefore qualified for an

exemption from the Hearsay Rule under Evid.R. 803(4). The State was not obligated to

present the video to accomplish that goal. The video contained the same information that

Ms. Daly was prepared to recount to the jury during her testimony. A.B. appeared in the

video and testified before the jury. The Court offered Appellant the opportunity to recall

A.B. to question her about the video, but he declined the offer.

       {¶41} Appellant also contends that the information gathered by Ms. Daly was not

sought for the purpose of medical treatment based upon Nurse Dahlheimer’s

recommendations and a comment by the trial court. Ms. Daly’s unrebutted testimony at

the Arnold hearing was that the information was gathered to facilitate medical treatment

of A.B. The recommendation to collect a rape kit as part of an examination and the lack
Stark County, Case No. 2017CA00193                                                 17


of any medical treatment does not alter the purpose of the interview by Ms. Daly. The

Appellant also contends the court erred based upon a remark that the “"methodology and

training that she used was appropriate to elicit from the alleged victim the statements

necessary for her to then recommend to other individuals, medical individuals, what action

needs to be taken" (August 30, 2017, Tr. p. 57-58) contending that this refers to Ms. Daly

making medical recommendations, which she did not do. We interpret this comment to

refer to the gathering of the information by Ms. Daly and the recommendation issued by

Nurse Dahlheimer as was demonstrated on the record. Regardless of the confusion

caused by the use of pronouns in the trial court’s comment, it was evident that Ms. Daly’s

goal was collection of information for the purpose of medical diagnosis.

      {¶42} We hold that the trial court did not abuse it discretion by permitting the

testimony of Ms. Daly or the playing of the recording of the interview of A.B. as that

information was sought for the purpose of providing medical treatment. Appellant’s third

assignment of error is overruled.


      {¶43} Appellant contends in his fourth assignment of error that the trial court erred

by admitting that portion of the video containing “other acts evidence” in violation of

Evid.R. 404(B). Specifically, he is referencing a statement by A.B. that Appellant had

previously digitally penetrated her anus and that he whooped her with a belt.


      {¶44} Rule 404(B) of the Ohio Rules of Evidence and R.C. 2945.59 preclude

admission of other acts evidence to prove a character trait in order to demonstrate

conduct in conformity with that trait. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-

5695, 983 N.E.2d 1278, ¶ 16. The Rules of Evidence and the Code carve out exceptions:
Stark County, Case No. 2017CA00193                                                   18


             Evidence of other crimes, wrongs, or acts of an accused tending to

      show the plan with which an act is done may be admissible for other

      purposes, such as those listed in Evid.R. 404(B)—to show proof of motive,

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

      mistake or accident—and in considering other acts evidence, trial courts

      should conduct a three-step analysis.

             The first step is to consider whether the other acts evidence is

      relevant to making any fact that is of consequence to the determination of

      the action more or less probable than it would be without the evidence.

      Evid.R. 401. The next step is to consider whether evidence of the other

      crimes, wrongs, or acts is presented to prove the character of the accused

      in order to show activity in conformity therewith or whether the other acts

      evidence is presented for a legitimate purpose, such as those stated in

      Evid.R. 404(B). The third step is to consider whether the probative value of

      the other acts evidence is substantially outweighed by the danger of unfair

      prejudice. See Evid.R 403.

Williams, at ¶¶ 19-20.

      {¶45} This issue arose during the playing of the videotape of A.B.’s interview by

Ms. Daly. Appellant did not object to the use of the videotape until that point in the

recording just before A.B. was to comment about Appellant’s prior sexual abuse of her.

The tape was stopped and Appellant explained his objection at the bench. Appellee cited

to the theory set out in Williams—that this evidence was not designed to show that the

Appellant acted in conformity with his bad character, but only to show that A.B. was
Stark County, Case No. 2017CA00193                                                    19


“groomed” to be compliant with the Appellant’s requests and instructions, as objectionable

as they were. The trial court reluctantly agreed with the Appellee and provided a limiting

instruction directing the jury to limit their consideration of the prior acts mentioned in the

video to show only a “pattern of conduct or modus operandi on the part of the Defendant”

and not for any other purpose. Appellant did not request any further limiting instruction be

included in the jury instructions, and none was included. The video tape was admitted

into evidence without objection and neither party made reference to the prior acts in

closing.

        {¶46} The Supreme Court of Ohio addressed a similar situation in State v.

Williams, supra, where the State sought to introduce the prior acts of Williams with a

juvenile who was not a victim in the case before the court. Williams objected that the

introduction of this evidence was a violation of Evid.R. 404(B) and R.C. 2945.59 which

prohibit introduction of “[e]vidence that an accused committed a crime other than the one

for which he is on trial *** when its sole purpose is to show the accused's propensity or

inclination to commit crime or that he acted in conformity with bad character. Williams, at

¶ 15. The State argued “that two independent bases exist to admit the other acts

evidence in this case: the intent and the plan of the accused, i.e., intent of sexual

gratification emanating from sexual conduct with teenage males and a specific plan to

target vulnerable teenage boys and groom them for eventual sexual activity. Williams, at

¶ 12.   The State made a similar argument in this case, that the acts of Appellant were

preparation and plan of targeting or grooming AB, but we find that the facts herein are

distinguishable from the facts of Williams and that when we apply the analysis of Williams

to these facts, we find that the prior acts evidence was improperly admitted.
Stark County, Case No. 2017CA00193                                                               20


        {¶47} We must first determine whether the other acts evidence is relevant to

making any fact of consequence to determination of the action more or less probable than

it would be without the evidence. The evidence may be relevant, but it does not show

Appellant's preparation and plan of targeting or grooming A.B.


        {¶48} The other acts evidence in Williams was of grooming techniques which were

not criminal acts, but which ultimately resulted in criminal sexual acts. The defendant in

Williams targeted, befriended, and mentored vulnerable teenage boys in an effort to gain

their trust to facilitate his plan to engage in sexual activity with them. In the instant case,

the other acts evidence is not of grooming techniques Appellant employed on the victim,

but rather of independent criminal sexual acts on the victim which are qualitatively the

same as the charged offense under the law. Appellant could have been charged with

separate violations of R.C. 2907.02((A)(1)(b) for each act of digital and penile penetration.

His prior acts of digital penetration were not an effort to gain her trust, or her compliance

with his directions, but rather were separate, independent acts of rape. Because consent

is not a defense to the charge of rape in this case and the defendant’s intent is not as

issue, the child victim’s compliance with the directives of appellant or lack thereof was not

relevant.1

        {¶49} Further, in Williams the court found the testimony concerning the prior acts

was relevant to show his intent was sexual gratification, citing R.C. 2907.01 and R.C.

2907.05(A)(1). Williams, supra, ¶22. R.C. 2907.05(A)(1) defines gross sexual

imposition, with which Williams was charged, to require "sexual contact." R.C. 2907.01


1Under certain circumstances, the prior acts of lesser, illegal sexual conduct may be admissible to show
scheme or plan of grooming the same victim for later, more serious sexual offenses when consent or the
defendant's intent is at issue.
Stark County, Case No. 2017CA00193                                                    21


defines sexual contact to require the touching be for the "purpose of sexually arousing or

gratifying either person." In the instant case, Appellant was charged only with rape, which

does not require proof the conduct was for the purpose sexual arousal or gratification

       {¶50} Further, in Williams the court found the testimony concerning the prior acts

was relevant to show his intent was sexual gratification, citing R.C. 2907.01 and R.C.

2907.05(A)(1). Williams, supra, ¶22. Revised Code 2907.05(A)(1) defines gross sexual

imposition, with which Williams was charged, to require "sexual contact." Revised Code

2907.01 defines sexual contact to require the touching be for the "purpose of sexually

arousing or gratifying either person." In the instant case, Appellant was charged only with

rape, which does not require proof the conduct was for the purpose sexual arousal or

gratification

       {¶51} The second step is to consider whether the evidence of the other crimes,

wrongs, or acts is presented to prove the character of the accused in order to show activity

in conformity therewith, or whether the other acts evidence is presented for a legitimate

purpose. We find no legitimate purpose for which the evidence was admitted in this case

other than to show Appellant acted in conformity with his past behavior with this victim.

       {¶52} The final step is to consider whether the probative value of the other acts

evidence is substantially outweighed by the danger of unfair prejudice. As discussed

above, the evidence was of very little relevance in this case other than to demonstrate

Appellant acted in conformity with his pattern of having committed prior acts of rape

against this same child victim. The admissibility of other acts evidence is carefully limited

because of the substantial danger the jury will convict the defendant solely because it

assumes the defendant has a propensity to commit criminal acts, or deserves punishment
Stark County, Case No. 2017CA00193                                                   22


regardless of whether he or she committed the crime charged in the indictment. See State

v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). This danger is particularly high

when the other acts are very similar to the charged offense, or of an inflammatory nature.

State v. Schaim, 65 Ohio St.3d 51, 1992-Ohio-31, 600 N.E.2d 661 (1992). "Because of

the severe social stigma attached to crimes of sexual assault and child molestation,

evidence of these past acts poses a higher risk, on the whole, of influencing the jury to

punish the defendant for the similar act rather than the charged act." State v. Miley, 5th

Dist. Richland No. 2005-CA-67, 2006-Ohio-4670, ¶ 59. In a case where the evidence is

of a particularly inflammatory nature, a curative instruction may be insufficient to cure the

prejudicial effect. State v. Patterson, 5th Dist. Stark No. 2017CA00022, 2017-Ohio-8970,

¶¶ 36-37, appeal not allowed, 152 Ohio St.3d 1491, 99 N.E.3d 427, 2018-Ohio-2155.

       {¶53} This case involves other acts evidence of prior acts of rape against the

same victim, which were of limited probative value to the charged act of rape, but highly

prejudicial due to the age of the victim and the inflammatory nature of the evidence.

Although the limiting instruction may have lessened the impact of the evidence, we find

the instruction insufficient to cure the prejudicial effect and the other acts evidence

inadmissible.


       {¶54} Notwithstanding our finding that the prior acts were not admissible, we find

that their admission was harmless in this case considering the weight of the admissible

evidence. The testimony of the victim, the victim’s statements to the social worker and

the Appellant’s comprehensive confession are consistent, detailed and unrebutted and
Stark County, Case No. 2017CA00193                                                 23

supply the basis for a conviction even if the prior acts evidence had been excluded. State

v. Burge, 5th Dist. Stark No. 2016CA00217, 2017-Ohio-7862, ¶ 30.

      {¶55} We overrule Appellant’s fourth assignment of error.

      {¶56} The decision of the Stark County Court of Common Pleas is affirmed.



By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.
