author: DITKOFF, J.

text:
    COMMONWEALTH v. Richard CHILDS.
    No. 16-P-1414
    Appeals Court of Massachusetts, Middlesex..
    Argued December 8, 2017 Decided September 20, 2018
    James F. Petersen for the defendant.
    Kate Cimini, Assistant District Attorney, for the Commonwealth.
    Present: Sacks, Ditkoff, & Singh, JJ.
   DITKOFF, J.

The defendant, Richard Childs, appeals from his Superior Court convictions on three indictments charging indecent assault and battery, see G. L. c. 265, § 13H, and one indictment charging indecent assault and battery on a child, see G. L. c. 265, § 13B, arising out of his seven-year abusive relationship with a friend's daughter. The charged acts, which occurred in Middlesex County, happened at the beginning and the end of that time period. We conclude that the judge properly allowed the Commonwealth to present evidence that the abuse continued during the period in which the family lived outside Middlesex County to show the nature of the relationship and the absence of mistake or accident. As we also conclude that the prosecutor properly used the uncharged conduct for these purposes during closing argument, we affirm.

1. Background. a. The Commonwealth's case. The victim lived with her parents and her sister, who is two years younger than the victim. The victim's father had a serious problem with alcohol use, and the victim's mother had a severe mental illness that resulted in her spending most of her time in her room. The defendant was a close family friend and had been a part of the victim's life since her infancy.

Prior to the victim's turning seven years old, the victim and her family lived in Hudson in Middlesex County. When the victim was five or six years old, she was in the attic with the defendant, who was teaching her how to read. The defendant began rubbing his penis with his own hand "on the outside of his pants." The defendant then grabbed the victim's hand and rubbed it against his penis, also on the outside of his pants. He continued to read words to her as he did this.

Shortly before the victim's seventh birthday, she and her family moved to Springfield in Hampden County. In Springfield, the defendant would come to the victim's house "mostly every Sunday" during football season to drink alcohol and to watch football games with the victim's father. Whenever the victim's father would leave the room, the defendant would continue his sexual advances towards the victim. He would rub his penis over his pants, lick his lips, and direct gestures indicating intercourse with his fingers toward the victim. The victim "really didn't have any reaction to it."

The victim recounted two specific incidents to the jury from her time outside Middlesex County. When she was seven or eight years old, the defendant brought the victim and her sister "glow in the dark" stickers for their shared bedroom. After the girls affixed the stickers, the defendant expressed his desire to "see ... how the room looked." This, of course, required turning off the lights. Once the lights were out, the defendant took his penis out of his pants and rubbed it against the victim's face. The victim ran and hid behind a dresser.

When the victim was eight or nine years old, the victim's father asked the victim to accompany the defendant on a drive to Ludlow (also outside Middlesex County) to fill the defendant's gasoline tank. While driving, the defendant rubbed his hands over the victim's abdomen and on her lap, over her vagina. She told him to stop, and then he rubbed her cheek.

The victim recounted two other specific acts of molestation that the judge excluded and were not heard by the jury. One occurred when the victim was ten or eleven years old. The victim and her sister were in a pool and the defendant exposed his penis to them. The other involved the defendant's putting his penis in the victim's mouth and then licking her vagina. The time frame and location for this latter incident was vague; the Commonwealth stated that it occurred when the victim was six years old (before she moved to Springfield), but also stated that it occurred in 2006, when the victim would have been eight or nine years old and living in Springfield.

In 2011, shortly after the victim turned fourteen years old, her family lost electricity to their house in Springfield and decided to return to an empty apartment in Hudson that her family still owned. The first evening, the victim returned from a visit to her grandmother's apartment to find her father passed out on a couch, with the defendant sitting next to him watching television. After the victim and the defendant talked for a while, she asked the defendant if she and her sister could go to his apartment (which was nearby) and use his computer. He agreed.

After approximately one hour, the defendant returned to his apartment while the victim and her sister were still there. The defendant put his hand down the back of the victim's shirt and began rubbing her back. The defendant then moved his hand to the front and touched her breasts underneath her bra. The victim was "just sitting there." The defendant touched the victim's "stomach" under her clothes. Again, the victim was "just sitting there." The defendant placed a hand over her pants, over her vagina area, and rubbed back and forth. Again, the victim was "just sitting there." After "a minute," the defendant stopped.

The victim's sister then went into the hallway to make a telephone call. The defendant took the victim's finger and sucked on it for approximately thirty seconds, going "back and forth against [her] finger." The victim was "still sitting there ... in shock" and "just let it happen." When the victim's sister returned and saw this, the defendant stopped. After the victim's sister reentered the room, the defendant rubbed his waist against the victim's shoulder. The victim could feel his erection through his pants. Again, the victim was "still sitting there."

On another evening in the next few days, the defendant repeatedly put his hand on the victim's buttocks, over her clothing. He said, "Excuse me," but the victim was convinced that it was intentional.

A Hudson police detective interviewed the defendant shortly after the incidents. According to the detective, the defendant stated that, after tending to the victim's father, he had returned to his apartment. He wanted to see what the girls were doing on his computer, so he placed his hands on the chair or possibly on the girls' shoulders and leaned forward to see. He said that "it could have been a possibility" that he had "brushed up against them and maybe touched their breast or something as an accident."

b. The defendant's case. The defense was that "this girl made up these allegations against the defendant because of the lack of attention she was getting from her own family." The defendant testified that the victim and her sister were lonely and had little interaction with their parents. He took the girls out to eat and bought them clothing. Once the family moved to Springfield, he visited them every weekend in the summer.

He acknowledged allowing the girls to access his apartment and to use his computer when they were living in Hudson in 2011. When he returned to his apartment, he "put [his] arms around them, ... gave them a kiss on the head, [and] asked them how they were doing and how was their summer." He occasionally got up to see what they were doing on the computer. He had to put his hands on their shoulders to balance himself when he did this. This happened again the next evening. He denied touching the victim inappropriately in any way. He also denied the charged conduct in the attic when the victim was five or six years old.

Regarding the uncharged driving incident when the victim was eight or nine years old, he remembered having to throw his arm across the victim when braking because she was not wearing a seat belt. He also remembered the uncharged glow in the dark stickers incident. He testified that the door to the bedroom was never closed and that he did not act inappropriately. He also denied the victim's account of weekly sexual gestures and harassment.

The defendant called three social workers as witnesses. One testified that, when the victim was eight years old, she recanted an accusation against the defendant when interviewed by the social worker. When the victim was ten years old, she told another social worker that "she hadn't been sexually abuse[d]." When the victim was thirteen years old, she denied to a third social worker that she had ever been touched sexually without her consent. The defendant also elicited from a responding officer a description of the victim's 2011 report to the police, which was less detailed than her trial testimony.

2. Discussion. a. Evidence of uncharged conduct. "Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Commonwealth v. Crayton, 470 Mass. 228, 249, 21 N.E.3d 157 (2014). Nonetheless, "[s]uch evidence may be admitted 'to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive.' " Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780, 68 N.E.3d 644 (2016), quoting Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686, 797 N.E.2d 470 (2003). Even when relevant, "the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Almeida, 479 Mass. 562, 568, 96 N.E.3d 708 (2018), quoting Crayton, supra. These matters are "entrusted to the trial judge's broad discretion and are not disturbed absent palpable error." Commonwealth v. Keown, 478 Mass. 232, 242, 84 N.E.3d 820 (2017), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192, 921 N.E.2d 968 (2010).

Here, the evidence was relevant to show that "the relationship" between the defendant and the victim was one of continuous sexual abuse. Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567, 33 N.E.3d 452 (2015). See Commonwealth v. Dwyer, 448 Mass. 122, 128-129, 859 N.E.2d 400 (2006), quoting Commonwealth v. Barrett, 418 Mass. 788, 794, 641 N.E.2d 1302 (1994) ("some evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and the 'probative existence of the same passion or emotion at the time in issue' "). Had the jury been left with the false impression that the defendant had molested the victim once when she was five or six years old and then not again until she was a teenager, her testimony would make little sense. The jury would hear that she was chatting with someone who molested her seven years earlier and asked to go to his apartment to use his computer. Then, when the defendant began molesting her, she was "just sitting there"; she "just let it happen"; she was "still sitting there." This lack of reaction occurred while the defendant went from reaching down her shirt, to touching her breasts under her bra, to rubbing her vagina area over her pajama pants, to sucking her finger, to rubbing his erection against her shoulder.

Once the jury had knowledge that the victim alleged this was part of an ongoing, continuous abusive relationship, the victim's actions and reactions make logical sense. Thus, "the relationship between [the] defendant and [the victim]," Centeno, 87 Mass. App. Ct. at 567, 33 N.E.3d 452, quoting Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 679, 755 N.E.2d 795 (2001), a proper use of uncharged conduct, was important evidence here. See Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 526, 954 N.E.2d 67 (2011) (uncharged rape of victim when she was fifteen years old properly admitted in prosecution for rapes of victim three and six years later to show "full picture of the entire relationship with the victim"); Beaulieu, 90 Mass. App. Ct. at 780, 68 N.E.3d 644 (in prosecution for domestic battery, judge properly allowed victim to testify that her mother had been hitting her at least two times each month for previous three or four years to provide "the history of the relationship [between the defendant and the victim] to give context to the jury").

The nature of the relationship was particularly relevant here, as the only reason why there is any uncharged conduct is the fortuity that the middle acts of molestation happened in a different county from the beginning and ending acts. Cf. Commonwealth v. McDonagh, 480 Mass. 131, 143, 102 N.E.3d 369 (2018) (proper introduction of "defendant's out-of-county sexual assaults against [victim] to show his pattern of conduct towards [victim]" mitigated closing argument error). If all of the incidents of abuse had occurred in the same county, they all could have been charged by the Middlesex County district attorney, and there would be no issue about the admissibility of these acts.

The evidence was relevant for another purpose as well. Based on the defendant's statement to the police, it was evident that there would be a question of accident or mistake, as the defendant told the police it "could have been a possibility" that he "brushed up against them and maybe touched their breast or something as an accident." And, indeed, the defendant did ask for, and receive, an accident instruction. The continuous abuse, of course, was powerful evidence rebutting the claim of accident, another proper use for uncharged conduct. Dwyer, 448 Mass. at 128, 859 N.E.2d 400. See Commonwealth v. Roby, 462 Mass. 398, 414, 969 N.E.2d 142 (2012) (evidence of number of times defendant sexually touched each victim properly admitted to undermine defendant's explanation for presence of victim on his lap not wearing a shirt); Commonwealth v. Vera, 88 Mass. App. Ct. 313, 319, 36 N.E.3d 1272 (2015) (in prosecution for open and gross lewdness, "[e]vidence of Internet searches for young girl pornography is relevant ... because it is highly probative of the defendant's intent and the lack of innocent mistake in exposing his genitals to a young girl").

In light of the relevance of the nature of the defendant's continuous relationship with the victim, it was well within the judge's discretion to admit two specific examples of the defendant's abuse during the victim's time outside Middlesex County. In this regard, the judge carefully exercised his discretion, excluding the two most damaging incidents of uncharged conduct. Specifically, the judge excluded the incident that involved the victim's sister as a victim also (the pool incident when the victim was ten or eleven years old), and the incident that involved oral rape. See Vera, 88 Mass. App. Ct. at 322, 36 N.E.3d 1272 (judge "selective" in which prior bad acts to admit).

Moreover, as the case developed, the prejudicial tendency of the uncharged conduct was diminished. Because the defendant used the victim's statements, while living in Springfield, to the three social workers denying she had been sexually abused to attack her credibility, the defendant's evidence (if credited) naturally rebutted the uncharged conduct evidence as well. Furthermore, the defendant had no difficulty remembering the two uncharged incidents and recounting his version of events. Finally, the uncharged conduct was supported only by the victim's testimony, so the admission required no change in the defense theory that she was fabricating the abuse.

The judge here avoided replicating the error in Dwyer, 448 Mass. at 129-130, 859 N.E.2d 400. There, the Commonwealth presented two charged incidents and seven uncharged incidents. Id. at 127-128, 859 N.E.2d 400. (Unlike here, in Dwyer, all of the uncharged incidents preceded the charged conduct. Id. ) The direct examination on the uncharged conduct there was forty per cent longer than on the charged conduct, and most of the cross-examination and "much" of the defendant's testimony was directed to the uncharged conduct. Id. at 128, 859 N.E.2d 400.

Here, by contrast, the bulk of the victim's testimony and all four Commonwealth exhibits concerned the charged conduct. A much smaller portion of the victim's testimony concerned the uncharged conduct. All of the victim's sister's testimony concerned the charged conduct, as she failed to answer questions about the uncharged conduct. None of the detective's testimony concerned the uncharged conduct. Similarly, the defendant's testimony (on direct and cross-examination) was centered on the charged conduct, with a much lesser amount concerning the uncharged conduct.

This case favorably compares to cases in which uncharged conduct was permissibly admitted. In Commonwealth v. Facella, 478 Mass. 393, 403-404, 85 N.E.3d 665 (2017), the Commonwealth introduced prior attacks on two unrelated persons to rebut a defense that the charged attack was caused by medication. Like here, there were two specific incidents and a five-year course of general conduct. See id. at 403, 85 N.E.3d 665. But, unlike here, the victims in the uncharged conduct were different from the victim of the charged conduct. Id. Nonetheless, the Supreme Judicial Court found the admission of the evidence within the trial judge's discretion. Id. at 407-408, 85 N.E.3d 665.

In Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 53, 35 N.E.3d 771 (2015), the defendant was charged with the rape of his son's eight year old half-sister. The Commonwealth introduced evidence that the defendant molested his own daughter for four to six years about ten years before the charged conduct to show a pattern of operation. Id. at 53-54, 55, 35 N.E.3d 771. The evidence there had a greater potential for prejudice than here, as the uncharged conduct was presented by the testimony of the defendant's own daughter, who was not the victim in the charged conduct. Id. at 55, 35 N.E.3d 771. Nevertheless, we held that admission of the evidence was within the trial judge's discretion. Id. at 54, 35 N.E.3d 771.

In Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 812, 694 N.E.2d 358 (1998), the defendant was charged with raping the victim in his cottage in Scituate. Most of the defendant's abuse of the victim, however, occurred in a ski chalet in Vermont, and the victim testified about numerous sexual assaults there. Id. In addition, the Commonwealth presented evidence that the defendant abused four other persons in the ski chalet over the next ten years. Id. at 812-813, 694 N.E.2d 358. We held that admission of all of this evidence was within the judge's discretion to show a course of conduct. Id. at 819-820, 694 N.E.2d 358. Moreover, "[a]lthough the last witness claimed to have been abused ... nine years after the last charged act, this testimony was not too remote, given the continuing nature of the pattern, and the striking similarity of each incident to the charged acts." Id. at 820, 694 N.E.2d 358. This case falls well within the parameters of Hanlon.

Furthermore, it is significant that "[t]he judge also provided a limiting instruction to the jury regarding the prior bad act evidence when it was offered and again in his final charge, thus minimizing any prejudicial effect." Almeida, 479 Mass. at 569, 96 N.E.3d 708. Accord Commonwealth v. Clayton (No. 1), 63 Mass. App. Ct. 608, 613, 827 N.E.2d 1273 (2005). The judge forcefully limited the jury's use of the uncharged conduct to discerning "the relationship between the parties, the respective positions of the parties, any state of mind of the defendant or pattern of conduct or common scheme or course of conduct, absence of mistake or accident." The judge provided this limiting instruction before the victim's testimony about the uncharged conduct, again after that testimony, and yet a third time in the final charge. In sum, the judge acted within his discretion in his handling of the evidence of uncharged conduct.

b. Closing argument. So long as the prosecutor's closing argument is grounded in the evidence, the prosecutor may "argue 'the evidence and the fair inferences which can be drawn from the evidence.' " Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801, 81 N.E.3d 327 (2017), quoting Commonwealth v. Braley, 449 Mass. 316, 329, 867 N.E.2d 743 (2007). "Because the defendant did not object to the prosecutor's closing statement at trial, we review [any error] for a substantial risk of a miscarriage of justice." Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835, 95 N.E.3d 285 (2018).

In closing argument, the prosecutor argued that the defendant consistently molested the victim from the time she was six years old. The prosecutor argued that all the incidents, charged and uncharged, were part of a pattern of the defendant's taking advantage of opportunities to molest the victim. In short, the prosecutor used the uncharged conduct to argue that it showed the relationship between the defendant and the victim was one of consistent sexual abuse. This was one of the purposes for which the uncharged conduct was admitted. Accordingly, the prosecutor acted properly in using the evidence for the purpose for which it was admitted. See Commonwealth v. Philbrook, 475 Mass. 20, 28-29, 55 N.E.3d 398 (2016) (prosecutor's argument that defendant killed victim because he was angry was proper use of prior bad acts admitted to show hostility between defendant and victim); Commonwealth v. Baker, 67 Mass. App. Ct. 760, 769, 856 N.E.2d 908 (2006) (argument that prior bad acts showed that defendant committed charged crime was proper).

There is no doubt that, had the uncharged conduct been improperly admitted, the prosecutor's heavy use of it would establish the prejudicial nature of the error. Because, however, the trial judge acted within his discretion in admitting the evidence of the uncharged conduct, there was no error.

Judgments affirmed.

I write separately because I believe that the court's decision fails to adhere to the guidance of the Supreme Judicial Court in Commonwealth v. Facella, 478 Mass. 393, 405-406, 85 N.E.3d 665 (2017), and Commonwealth v. Dwyer, 448 Mass. 122, 128-129, 859 N.E.2d 400 (2006), respecting the admission of uncharged prior bad acts in criminal sexual assault cases. The uncharged criminal conduct introduced in this case overwhelmed the charged conduct and, together with closing argument, which blended the two, likely deprived the defendant of a fair trial. In arriving at a contrary conclusion, I believe the court significantly underestimates the damage done by evidence of uncharged bad acts, particularly those that constitute the same crimes for which the defendant is on trial.

While our case law has developed in such a way as to allow bad acts to be admitted for various purposes, including to show "inclination" to commit the crime charged, it still aims to prohibit propensity evidence. Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 818 n.5, 694 N.E.2d 358 (1998) (noting incongruence of law in this area). If the exceptions are not to swallow the rule, they must be applied in a circumspect manner and with due regard for the risk of prejudice to the defendant.

The starting point must be that any bad act evidence that is collateral to the issue to be tried risks being highly prejudicial. See Commonwealth v. Barrett, 418 Mass. 788, 795, 641 N.E.2d 1302 (1994) ("It is implicit in the general rule regarding the inadmissibility of prior bad acts evidence that the admission of such evidence carries with it a high risk of prejudice to the defendant"); Commonwealth v. Crayton, 470 Mass. 228, 249 n.27, 21 N.E.3d 157 (2014) (because "other bad acts" evidence is "inherently prejudicial," more "exacting standard" of admissibility is necessary). To this must be added the consideration that bad act evidence "is admitted not for the direct purpose of proving an element of the crime charged but merely as circumstantial evidence tending to establish, by inference, one factor relevant to the determination of guilt." Barrett, 418 Mass. at 795, 641 N.E.2d 1302. Against this backdrop, the probative value of the bad act evidence must be evaluated. See Commonwealth v. Anestal, 463 Mass. 655, 665, 978 N.E.2d 37 (2012) (even if other bad act evidence is probative of relevant issue in case, it may not be admitted unless probative value outweighs risk of unfair prejudice).

In order to determine whether the proper balance was struck, it is important to clarify the purpose for which the Commonwealth offered the evidence and the basis upon which the trial judge admitted it. See Facella, 478 Mass. at 404, 85 N.E.3d 665. Here, the prosecutor explained that the purpose was the usual one: "to present an accurate picture of the relationship between the parties and the defendant's motive and intent for the charged conduct." The judge allowed the Commonwealth's motion, without articulating his reasoning, so it is natural to infer that he concurred with the Commonwealth's rationale and its theory.

There is no question that, when a defendant is tried on sexual assault charges, "some evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and 'the probative existence of the same passion or emotion at the time in issue.' " Dwyer, 448 Mass. at 128-129, 859 N.E.2d 400, quoting Barrett, 418 Mass. at 794, 641 N.E.2d 1302. Compare Facella, 478 Mass. at 405, 85 N.E.3d 665. Some evidence, however, does not mean any or all evidence. See Dwyer, 448 Mass. at 129, 859 N.E.2d 400 (allowing victim "to testify in detail about each of seven uncharged incidents was excessive").

Nor does our common-law rule contemplate that uncharged bad act evidence be fully recited by the victim at trial, if for no other reason than a detailed narrative is likely to confuse the facts and the issues to be decided by the jury, and to create a risk of undue prejudice to the accused. See Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E.2d 896 (1947) (bad act evidence creates risk that jury may see defendant as someone capable of and likely to commit crime charged and dispense with proof that he actually did commit crime charged). See also Commonwealth v. Trapp, 396 Mass. 202, 206, 485 N.E.2d 162 (1985).

Here, the prosecutor indicated that the bad act evidence would be presented "in fairly summary fashion so that they don't overwhelm the trial." Yet, the Commonwealth's motion in limine sought to present evidence of several specific instances of uncharged bad acts taking place in the seven years between the charged acts. The judge allowed the motion in its entirety. Later, during the course of trial, the judge limited the evidence somewhat, but still allowed the victim to testify to details of uncharged sexual assaults, some of which were more inflammatory than the charged assaults. Given the purpose of the bad acts evidence -- to present a fair picture of the relationship between the parties -- it was unnecessary to go into the details of the specific incidents. See Anestal, 463 Mass. at 666, 978 N.E.2d 37 (fact of department of social services complaint against defendant was probative, details were not). Rather, where there was no other purpose for bringing up specific incidents, the nature of the relationship should have been explained in a summary manner. See Dwyer, 448 Mass. at 130, 859 N.E.2d 400 (court cautioned trial judge on remand "to limit any prior bad act testimony to establishing in summary fashion that the [victim] claims that the abuse continued over a number of years"). Contrast Facella, 478 Mass. at 404-405, 85 N.E.3d 665 (specific incidents of defendant's violent attacks prior to interferon treatment admitted where relevant to specific purpose of rebutting defendant's claim that interferon diminished his capacity to commit murder).

The detailed nature of the uncharged incidents naturally led to cross-examination on those allegations and, when the defendant testified, to direct examination attempting to rebut those allegations and further cross-examination. Thus, the jury's focus "was repeatedly drawn to the uncharged conduct." Dwyer, 448 Mass. at 129, 859 N.E.2d 400. Contrast Commonwealth v. King, 387 Mass. 464, 469, 441 N.E.2d 248 (1982) (after other bad acts evidence introduced, there was no further testimony concerning that evidence, and it was not alluded to in closing argument or judge's charge). See Mass. G. Evid. § 404(b) note, at 56 (2018) ("The prohibition against propensity evidence in specific act form stems from the belief that not only does such evidence have low probative value and carry the distinct risk of undue prejudice, it will also inevitably lead to proliferation of issues and distract the attention of the fact finder from the main event").

Moreover, the uncharged acts constituted the same crimes for which the defendant was being tried. The risk that the jury would infer guilt of the specific charged crimes in 2006 and 2011 from evidence that the defendant repeatedly committed the same crimes during the seven-year interim was too great to overlook. See Commonwealth v. Leftwich, 430 Mass. 865, 869, 724 N.E.2d 691 (2000) (substantial similarity of prior conviction to charge being tried weighs in favor of exclusion); Commonwealth v. Little, 453 Mass. 766, 773-774, 906 N.E.2d 286 (2009) (admission of defendant's prior conviction of crime substantially similar to one for which he was being tried created risk that jury would convict based on propensity).

This risk became more evident when, in closing argument, the prosecutor reviewed the uncharged conduct in conjunction with the charged conduct. The argument began: "In 2006 and 2011, and a bunch of times in between, this defendant took his opportunities when and where he found them." The theme continued: the opportunity the defendant saw in 2011 was "an opportunity not unlike the ones he'd been taking for years, since [the victim] was six." The prosecutor went on to detail the victim's account of each of the acts, charged as well as uncharged, and to attack the defendant's account of the same. Although the statements were undoubtedly grounded in the evidence at trial, they nevertheless communicated to the jury that the defendant had committed the crimes charged on numerous occasions over a seven-year period of time.

Limiting instructions notwithstanding, I believe the prejudice flowing from the detailed accounts of uncharged bad acts, consisting of the same offenses for which the defendant stood charged, in conjunction with closing argument that emphasized the same, likely deprived the defendant of a fair trial. I therefore respectfully dissent.

      The judge also excluded a third act, close in time to the charged 2011 incident, when the prosecutor tried to elicit it in cross-examination of the defendant. Apparently, it was not included in the Commonwealth's motion in limine.

      The victim described to investigators another specific incident that occurred when she was twelve years old, in which the defendant rubbed his penis and then exposed it to her. The judge did not exclude this incident, but no evidence of it was presented to the jury.

      We assume, without deciding, that the issue was preserved, despite the defendant's lack of objection when the evidence was introduced and the fact that the trial here predated Commonwealth v. Grady, 474 Mass. 715, 54 N.E.3d 22 (2016). Because the trial judge twice revised which acts he would admit and told the defendant that his rights were saved at some points, but not at other points, the issue is complicated.

      In the context of property crimes, the Legislature has created a mechanism for a related course of criminal conduct occurring in different counties to be tried in one court. G. L. c. 266, § 60B. This case suggests consideration might be given to whether a similar mechanism should exist for crimes against the person. Under current law, the district attorney in one county must request of the district attorney in the other county to indict a defendant there and then obtain a court order consolidating the various indictments, see, e.g., Dwyer, 448 Mass. at 126 n.5, 859 N.E.2d 400, neither of which would be necessary in the case of a property crime.

      Defense counsel stated that her desire to use the victim's statements to the social workers was independent of the admission of the uncharged conduct.

      The prosecutor also explained "the reason that [the uncharged acts are] part of the case is quite simply because they happened out of county." The Commonwealth was not without the ability to prosecute the defendant for crimes against the same victim occurring in two different counties. See Dwyer, 448 Mass. at 126 n.5, 859 N.E.2d 400 (sexual assaults involving same defendant and victim in two different counties indicted separately and joined for trial). The fact that the other bad acts occurred out of county should not be a ground supporting admission.

      Although the Commonwealth sought to admit the bad acts in order to put the crimes into the context of the relationship, the prosecutor also sometimes referred to the bad acts as "course of conduct" evidence. There was nothing to suggest, however, a unique pattern underlying the specific incidents that would constitute a course of conduct. See, e.g., Commonwealth v. Walker, 442 Mass. 185, 201-203, 812 N.E.2d 262 (2004) (defendant engaged in series of criminal episodes; in each, he brought woman back to his home, drugged her with drink containing sleeping medication, and then sexually assaulted her); Hanlon, 44 Mass. App. Ct. at 818-821, 694 N.E.2d 358 (in trial of priest charged with sexually assaulting altar boy, other former altar boy witnesses permitted to testify to uncharged assaults against them, where each had similar relationship to defendant, assaults occurred in same location, and manner in which defendant approached each was similar).

      Although the Commonwealth need not demonstrate that bad act evidence is necessary to its case, see Commonwealth v. Copney, 468 Mass. 405, 413, 11 N.E.3d 77 (2014), the fact that it is unnecessary certainly enters into the calculus whether the evidence is more probative than prejudicial. See Mass. G. Evid. § 404(b)(2) (2018) (admissibility of bad acts evidence dependent on probative value outweighing risk of unfair prejudice to defendant). In my view, it is unnecessary to admit evidence of specific incidents of bad acts simply to give context regarding the relationship between the parties, where that purpose may be served by a summary explanation.

      While cases regarding prejudice resulting from the admission of prior criminal convictions may be distinguished, firsthand testimony from the victim of a crime relating the experience of being victimized is arguably more prejudicial than the admission of a record of a conviction, which may not be further explained. See Commonwealth v. McGeoghean, 412 Mass. 839, 843, 593 N.E.2d 229 (1992).

      Although I am cognizant of the presumption that jurors follow limiting instructions, "where the evidence subject to limitations has an extremely high potential for unfair prejudice, we have a duty to be skeptical as to the effectiveness of limiting instructions" (citation omitted). Commonwealth v. Elliot, 393 Mass. 824, 834, 473 N.E.2d 1121 (1985).


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF GIRARD, Plaintiff-Appellee, v. Gary L. OAKMAN, Defendant-Appellant.
    NO. 2017-T-0065
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided March 30, 2018
    Michael E. Bloom, Girard City Prosecutor, Girard Municipal Court, 100 North Main Street, Girard, OH 44420 (For Plaintiff-Appellee).
    Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240, and Sarah Thomas Kovoor, Ford, Gold, Kovoor & Simon, Ltd., 8872 East Market Street, Warren, OH 44484 (For Defendant-Appellant).
    CYNTHIA WESTCOTT RICE, J., {¶ 1} Appellant, Gary L. Oakman, appeals his conviction for obstructing official business, a second-degree misdemeanor under R.C. 2921.31(A). Besides challenging the sufficiency and manifest weight of the evidence, he maintains that he was denied a fair trial because his trial counsel was not afforded ample time to prepare for trial. Upon reviewing the record, we reverse and remand.
    {¶ 2} As of February 11, 2017, appellant and his wife lived at 1037 East Liberty Street, Liberty Township, Trumbull County, Ohio. The couple had only been married for approximately eighteen months, and his wife had at least one adult child from an earlier relationship. At that time, appellant had a permit to carry a concealed weapon and was the owner of three firearms, at least two of which he kept in the home's main bedroom.
    {¶ 3} On the date in question, the couple learned that a friend of the wife's son had died from a drug overdose the day before. Due to the sad news, the couple began drinking alcoholic beverages that evening, and soon became embroiled in an argument. During the confrontation, appellant knocked over a lamp in the living room and kicked a piece of furniture toward his wife. Although appellant did not hit his wife, he did attempt to take her cell phone away from her, claiming that she had been communicating with her ex-boyfriend.
    {¶ 4} At some point during the altercation, the wife was able to lock herself in a spare bedroom. When appellant continued to yell that he wanted to see her phone, she called the Liberty Township Police Department for help. Before the police could arrive, appellant calmed down, went into the main bedroom, and locked the door. As a result, the wife was able to exit the spare bedroom and meet the police in the home's garage.
    {¶ 5} Officer Robert Altier was one of the two policemen who responded to the wife's call. As part of his uniform that evening, Officer Altier wore a "dash" camera that made both a visual and audio recording of his encounter with the wife and appellant. A transcript of the audio recording was accepted into evidence at trial.
    {¶ 6} During their initial conversation in the garage, the wife confirmed to Officer Altier that appellant had been drinking and was locked inside the main bedroom where he kept multiple firearms. Upon leading Officer Altier to the bedroom door, the wife was eventually able to convince appellant to open the door and speak to the officers. Once the door was open, appellant and the wife immediately began to yell at each other; thus, the officers decided to take the two individuals into different rooms and speak with them separately. While the second officer took the wife to the kitchen, Officer Altier followed appellant back into the main bedroom.
    {¶ 7} Upon entering the room, Officer Altier observed that there were no lights on, and immediately asked appellant where the light switch was. Appellant responded that the lights were controlled by a remote and began to search for that remote on the bed. The officer then asked if there were any guns in the room. Appellant gave a very confusing response to this question and continued to walk around the foot of the bed, appearing as if he was still looking for the "light" remote. Once appellant got around the corner of the bed, to where the width of the bed was between him and Officer Altier, he took steps toward a nightstand that was located near the far wall.
    {¶ 8} In response to appellant's movements, Officer Altier pointed his flashlight on the nightstand and quickly saw a firearm sitting on top, in plain view. Therefore, the officer pulled his own weapon from its holster, pointed it at appellant, and ordered him to keep away from the firearm. Appellant did not stop immediately and continued toward the firearm with his hand extending forward, causing the officer to yell his command to stay away three more times. Ultimately, appellant did stop, but not before his hand was only six to eight inches away from the firearm. He then put his hands up in the air and backed away.
    {¶ 9} In light of the foregoing incident, appellant was immediately placed under arrest and charged with domestic violence. However, approximately one month after the incident, that charge was dismissed, and Officer Altier executed a new complaint charging appellant with obstructing official business under R.C. 2921.31(A). On March 15, 2017, appellant made his initial appearance before the trial court, entering a plea of not guilty to the sole charge. According to the trial court, as part of that proceeding, an agreement was reached that appellant's trial would be held on March 29, and that the trial would be before a jury if appellant filed a timely request.
    {¶ 10} On the same day as the initial appearance, the clerk for the trial court sent a notice to both sides regarding the scheduled proceeding for March 29, 2017. Instead of stating that appellant's trial would be held on March 29, though, the notice indicated that the matter was set for a pretrial conference at that time. The mailing of the notice was noted by the clerk on the "Public Docket Information" sheet for the case.
    {¶ 11} During the fourteen-day interim period between the initial appearance and the scheduled proceeding for March 29, 2017, appellant's trial counsel did not submit a request for a jury trial. One day before that scheduled proceeding, the clerk for the trial court issued a new notice stating that appellant's trial would go forward on March 29. A copy of this notice was faxed to defense counsel's office.
    {¶ 12} A bench trial was held on the scheduled date. At the beginning of the trial, defense counsel moved for a continuance on the basis that her client would be denied a fair trial because one day was insufficient time to prepare for trial. In essence, counsel asserted that, since the clerk's original notice had stated that a pretrial conference was scheduled for the March 29 date, she had not taken all necessary steps to prepare for trial, including the filing of a jury demand. After the state responded, the trial court orally denied the continuance request. As the primary basis for its decision, the court quoted from a transcript of the March 15, 2017 initial appearance. In the quote, the court stated that, in light of statements made by both attorneys, the case would be scheduled for trial on March 29, 2017.
    {¶ 13} Officer Altier and appellant were the only two witnesses at trial. As part of their respective questioning of the witnesses, both the prosecutor and defense counsel tried to play the audio recording of the dash camera worn by Officer Altier the evening of the incident. However, certain difficulties arose in playing the recording; as a result, the trial court gave defense counsel an extension of time in which to submit a transcript of the audio recording. Once filed, the transcript was considered as evidence.
    {¶ 14} In its written judgment, the trial court found that, by moving toward the gun on the nightstand and then not immediately stopping when so ordered by Officer Altier, appellant had purposely hampered or impeded both police officers in their investigation of the alleged domestic violence. Accordingly, the court found him guilty of the charged offense. After holding a separate sentencing hearing, the court sentenced appellant to thirty days in jail, but suspended twenty-seven of the days. The court also placed him on probation for one year.
    {¶ 15} On appeal, appellant raises three assignments for review:
    {¶ 16} "[1.] The trial court erred as a matter of law, by forcing appellant to go to trial in violation of his rights to due process of law and trial by jury.
    {¶ 17} "[2.] The trial court's finding that appellant had committed the crime of obstructing official business was not supported by sufficient evidence.
    {¶ 18} "[3.] Appellant's conviction is against the manifest weight of the evidence."
    {¶ 19} Under his first assignment, appellant argues that he was denied a fair trial because his trial counsel was not given timely notice of the trial date. He contends that his counsel did not receive any notice about the trial date until March 28, 2017, only one day before the scheduled proceeding on March 29. He also contends that, prior to the March 28, 2017 notice, the only notice his counsel had received from the trial court clerk had stated that the scheduled March 29 proceeding would only be a pretrial conference. Building upon this, appellant further argues that, in addition to the fact that his counsel did not have adequate time to prepare, he was denied his right to a jury trial because, by the time his counsel received the March 28 notice, it was too late to file a timely jury demand.
    {¶ 20} In asserting the foregoing argument, appellant does not address the trial court's oral statement in overruling his motion for a continuance at the outset of his trial. As noted above, in concluding that appellant's trial counsel was provided adequate and timely notice of the trial date, the trial court quoted a portion of a transcript of his March 15, 2017 initial appearance proceeding. Specifically, the court stated:
    {¶ 21} "And I'm going to read the relevant part of the transcript-Page 6 of the transcript from that day. Regarding the time, [the prosecutor] indicated 45 days. [Defense counsel], we would also want a jury demand-jury trial. Mr. Oakman said, yes. [Defense counsel] said, yes. The Court said, we got jury trials coming up on March 29. [The prosecutor] said, set it. I said, my next jury is coming September, October. You're starting a trial on the 20th. [Defense counsel] said, Monday, which would have the (sic ) been the 20th. The Court then said, let's set it for the 29th. The next jury trial is in September.
    {¶ 22} "And then the Court said, all right, let the record reflect, defendant appeared in open court; acknowledged receiving a copy of the complaint; waived the reading; fully advised of his legal and constitutional rights; entered a plea of not guilty; did not waive his right to a speedy trial. The bond is set at 2,500 personal recognizance. Trial will be at 9:00 o'clock a.m. on March 29, 2017. Right now it's a bench trial unless you file a jury demand. [Defense counsel] said, I did in the other case but I'll refile and send it over to the court today. And upon then the hearing was concluded."
    {¶ 23} Since the record before this court does not have a transcript of the March 15, 2017 proceeding, we cannot verify whether the foregoing statement by the trial court is an accurate quote. Nevertheless, the trial transcript readily shows that when the trial court read the quote from the prior proceeding into the record, defense counsel did not contest the accuracy of the quote. Moreover, in challenging the trial court's denial of his continuance request in his appellate brief, appellant has not contested the court's basic contention that the parties had agreed to go to trial on March 29, 2017.
    {¶ 24} In addition, our review of the trial court's jacket for the instant case shows that, on the same date as the initial appearance proceeding, the trial court rendered a written order setting the matter for trial on March 29, 2017. This order was contained in the judgment setting forth the terms of appellant's bail. Accordingly, there is no dispute that the court intended for the March 29, 2017 proceeding to be the trial on the merits, not a pretrial conference.
    {¶ 25} Notwithstanding the foregoing, there is no indication in the trial record that a copy of the "bail" judgment was mailed to the parties. Included in the record is a copy of the "Criminal/Traffic Docket" for the instant case, as prepared by the trial court clerk. As one of the entries on the docket for March 15, 2017, the clerk retyped the substance of the trial court's "bail" judgment. Although the clerk accurately retyped the court's bail order, the clerk misstated the purpose of the upcoming March 29, 2017 proceeding; i.e., the clerk typed that a pretrial conference would be held on that date.
    {¶ 26} As a separate entry on the docket for March 15, 2017, the clerk indicated that a notice had been issued stating that a "pretrial" was scheduled for March 29, 2017. Although the notice was consistent with the clerk's erroneous restatement of the "bail" judgment on the docket, it directly conflicted with the actual order in the judgment which set the case for trial on that date.
    {¶ 27} As a general proposition, a trial court must "speak" only through its journal, not by oral pronouncements. Mihovk v. Paulson , 8th Dist. Cuyahoga No. 69987, 1996 WL 532079, *5 (Sept. 19, 1996). Furthermore, in the civil context, it has been held that the mere entry of the trial date on a court's docket provides constructive notice of that date to the parties. Lopresti v. O'Brien , 11th Dist. Geauga No. 2016-G-0084, 2017-Ohio-5637, 2017 WL 2831010, ¶ 24, quoting Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn. , 28 Ohio St.3d 118, 125, 502 N.E.2d 599 (1986). Thus, if no additional steps had been taken, it is arguable that the trial court's order on the case jacket would have been sufficient notice that the case was scheduled for trial on March 29, 2017.
    {¶ 28} However, following the trial court's entry of the "trial" order on the case jacket, the clerk issued the notice stating that only a pretrial conference would be held on March 29, 2017. This was the last notice defense counsel received until one day before that scheduled proceeding, when the clerk faxed a new notice stating that the case was set for trial. Given these circumstances, this court holds that defense counsel reasonably relied upon the clerk's "pretrial" notice, justifiably concluding that it was not necessary to be prepared for trial on March 29, 2017.
    {¶ 29} Since the offense of obstructing official business is a second-degree misdemeanor for which the maximum sentence is ninety days, the sole charge against appellant is considered a petty offense. See R.C. 2921.31(B) ; Crim.R. 2(D). In regard to petty offenses, Crim.R. 24(A) states:
    {¶ 30} "In petty offense cases, where there is a right to a jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later."
    {¶ 31} Pursuant to the foregoing analysis, appellant and his trial counsel did not receive proper notice of the trial date until one day before. Therefore, he was denied a fair opportunity to submit a timely jury demand. To this extent, not only was he denied his right to a jury trial, but defense counsel was not afforded sufficient time to prepare for trial. Since the trial court should have granted a continuance and set a new date for trial, appellant's first assignment has merit.
    {¶ 32} Under his second assignment, appellant asserts that the sole charge against him should have been dismissed because the state's evidence was insufficient to satisfy the elements of obstructing official business. As his primary argument, he claims that none of his actions during the incident could be characterized as impeding the officers' investigation into the alleged domestic violence.
    {¶ 33} " 'A sufficiency of the evidence argument challenges whether the state has presented evidence for each element of the charged offense. The test for sufficiency of evidence is whether, after viewing the probative evidence and the inferences drawn from it, in a light most favorable to the prosecution, any rational trier of fact could find all elements of the charged offenses proven beyond a reasonable doubt.' State v. Barno , 11th Dist. No. 2000-P-0100, 2001-Ohio-4319, 2001 WL 1116908 [at *5], 2001 Ohio App. LEXIS 4280 at *16 citing State v. Jones , 91 Ohio St.3d 335, 345, 744 N.E.2d 1163, 2001-Ohio-57. Whether sufficient evidence has been presented to allow the case to go to the jury is a question of law; thus, an appellate court is not permitted to weigh the evidence when making this inquiry. State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994 WL 738452 [at *4], 1994 Ohio App. LEXIS 5862, at *13 (citations omitted). A reviewing court will not reverse a jury verdict 'where there is substantial evidence upon which the jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.' Id. citing State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132, at the syllabus. Thus, an appellate court will examine the evidence and determine whether that evidence, 'if believed, would convince the average mind of a defendant's guilt beyond a reasonable doubt.' State v. Norwood , 11th Dist. No. 2005-L-047, 2006-Ohio-3415 [2006 WL 1816276], at ¶ 15, citing State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492." State v. Higgins , 11th Dist. Lake No. 2005-L-215, 2006-Ohio-5372, 2006 WL 2934824, ¶ 22.
   {¶ 34} The crime of obstructing official business is defined in R.C. 2921.31(A) :

{¶ 35} "No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties."

{¶ 36} " R.C. 2921.31 has five essential elements: (1) an act by the defendant; (2) done with the purpose to prevent, obstruct, or delay a public official; (3) that actually hampers or impedes a public official; (4) while the official is acting in the performance of a lawful duty; and (5) the defendant does so act without a privilege to do so." State v. Brickner-Latham , 3rd Dist. Seneca No. 13-05-26, 2006-Ohio-609, 2006 WL 319183, ¶ 25.

{¶ 37} Under his first evidentiary challenge, appellant maintains that there was no evidence to support a finding that he actually impeded the officers' investigation into the alleged domestic violence. Specifically, he asserts the evidence can only be interpreted to show that, when Officer Altier ordered him to stop walking toward the firearm on the nightstand, he immediately complied.

{¶ 38} The record does not support appellant's argument on this point. As noted previously, the evidence before the trial court included a written transcript of the audio recording made by Officer Altier's body camera. As to the moment at which appellant began walking toward the firearm, the transcript shows that the following exchange took place:

{¶ 39} "MR. OAKMAN: It's right here.

{¶ 40} "OFFICER ALTIER: Okay.

{¶ 41} "MR OAKMAN: I'll give you the remote, I know where the remote is.

{¶ 42} "OFFICER ALTIER: Hey, get-get away from that gun.

{¶ 43} "MR. OAKMAN: I know-the gun is there.

{¶ 44} "OFFICER ALTIER: Get away from the gun.

{¶ 45} "MR. OAKMAN: (Inaudible) it's-

{¶ 46} "OFFICER ALTIER: Get away from that gun.

{¶ 47} "MR. OAKMAN: But again, no, I got-are you guys kidding me?

{¶ 48} "OFFICER ALTIER: Get your hands-get your hands away from that fucking gun.

{¶ 49} "MR. OAKMAN: The remote's over there.

{¶ 50} "OFFICER ALTIER: You were walking right toward it, man."

{¶ 51} The foregoing excerpt demonstrates that Officer Altier told appellant four separate times to get away from the firearm. Moreover, this clearly was not an instance in which Officer Altier said the four commands/orders all in a row, without interruption. Appellant made some type of statement in between all four commands. Therefore, the verbal exchange between Officer Altier and appellant supports the finding that appellant did not immediately comply with the officer's command to stay away from the gun. The officer had to repeat the command four times before appellant stopped.

{¶ 52} Generally, an individual can be found guilty of obstructing official business when he persists in performing a specific act when a police officer has told him to stop. See State v. Jackson , 11th Dist. Lake No. 2008-L-147, 2009-Ohio-6226, 2009 WL 4158882 ; State v. Hill , 10th Dist. Franklin No. 10AP-177, 2010-Ohio-6121, 2010 WL 5141707. In State v. Watson , 3rd Dist. Union No. 14-09-01, 2009-Ohio-6713, 2009 WL 4894663, two police officers repeatedly told the defendant to stay away from his briefcase and to not put his hand inside. Despite the express order, the defendant pulled the briefcase over to him, opened it, and placed his hand inside. The Third Appellate District held that his actions constituted an affirmative act which impeded the officers' performance of their lawful duties. Id. at ¶ 36.

{¶ 53} In addition to the excerpt from the audio recording, Officer Altier testified that appellant did not stop walking toward the firearm until his extended hand was within six to eight inches from the firearm. Based upon this, the trial court justifiably found that appellant did not immediately comply with the officer's command, and that his actions impeded both officers in their investigation of the alleged domestic violence. Accordingly, there was sufficient evidence for the trial court to hold that the elements of obstructing official business could be found beyond a reasonable doubt.

{¶ 54} As part of its findings that appellant acted purposely in trying to impede or obstruct the officers, the trial court concluded that he had attempted to deceive them as to whether he had any guns in the bedroom. Under his second evidentiary challenge, appellant contends that this finding is not supported by the evidence because he clearly told Officer Altier that there were guns in the bedroom.

{¶ 55} A review of the transcript of the audio recording shows that, after Officer Altier asked him whether he had any firearms with him in the bedroom, appellant stated:

{¶ 56} "MR. OAKMAN: No, no guns. I have guns. I have no guns, but it's right over here."

{¶ 57} The response is contradictory and confusing. In light of this, the trial court could justifiably find that, at least momentarily, appellant was unsure whether he wanted to inform the officers about the firearms. In turn, this supported the further finding that it was appellant's intention to pick up the gun.

{¶ 58} Since the state presented sufficient evidence to support a conviction for obstructing official business, appellant's second assignment is without merit.

{¶ 59} Under his last assignment, appellant contends that his conviction is against the manifest weight of the evidence because the trial court should have rejected Officer Altier's testimony as totally lacking in credibility. However, when a criminal case must be remanded for a new trial as a result of a legal error in the original proceeding, a "manifest weight" argument is rendered moot and need not be addressed. State v. Platfoot , 183 Ohio App.3d 349, 2009-Ohio-3769, 916 N.E.2d 1147, ¶ 22 (2d Dist.).

{¶ 60} The judgment of the Girard Municipal Court is reversed, and the case is hereby remanded for further proceeding consistent with this opinion.

DIANE V. GRENDELL, J., TIMOTHY P. CANNON, J., concur.


author: PIPER, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Gary W. ROGERS, Defendant-Appellant.
    NO. CA2017-08-112
    Court of Appeals of Ohio, Twelfth District, Butler County.
    April 9, 2018
    Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
    Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-appellant
   PIPER, J.

{¶ 1} Defendant-appellant, Gary W. Rogers, appeals his conviction and sentence for felonious assault in the Butler County Court of Common Pleas.

{¶ 2} On February 1, 2017, the Butler County Grand Jury returned an indictment charging Rogers with felonious assault, a second-degree felony. The matter proceeded to a two-day jury trial commencing on May 31, 2017.

{¶ 3} Mark Schlensker testified on behalf of the state. Mark testified that at approximately 4:00 a.m. on September 3, 2017 he received a call from his ex-wife, Wendy Schlensker. Mark described Wendy's demeanor on the phone as scared and very frantic. Wendy was crying and informed Mark she was in trouble and needed him to pick her up from Rogers' home in Butler County. Wendy lived at the residence with Rogers, who was her boyfriend at the time. Mark drove to the address and parked outside where he observed Wendy and Rogers arguing in front of the residence.

{¶ 4} Mark testified that Wendy informed Rogers her ex-husband was the driver of the vehicle and Rogers walked over to his vehicle. Then, Mark turned to look at Wendy and Rogers punched him in the side of his head three or four times. Rogers proceeded to open the driver's side door and attempted to remove Mark from the vehicle. As a result, Mark became tangled in his seatbelt with his body halfway out of the vehicle. Wendy interjected herself into the fray, which provided an opportunity for Mark to reposition himself in the driver's seat. Rogers continued to strike Mark in the head with punches while reaching around Wendy. Then, Rogers and Wendy moved away from the vehicle for a moment and Mark drove away.

{¶ 5} Mark sustained injuries during the altercation with Rogers and was treated at a nearby hospital for a facial laceration and swelling, the loss of a piece of his ear, knee scrapes, and a fractured nose. The state introduced photographic evidence depicting the injuries sustained by Mark and blood inside Mark's vehicle. Mark stated his injuries remained visible for months and his fractured nose required surgery. Mark testified he has a concealed handgun license and that he always keeps a .45 caliber handgun holstered underneath his driver's side seat. Mark stated he did not attempt to reach for the handgun the night of the altercation.

{¶ 6} Before Mark's testimony, the state played a recording of a 911 call placed on September 3, 2016 by Rogers' neighbor. The neighbor stated that an altercation awoke her and that she observed two people assaulting someone by a car. Officer Lanny Ash testified that he was dispatched to Rogers' residence regarding an altercation. Ash made contact with Wendy at the residence. He described her demeanor as frantic. Ash testified he had met Wendy before September 3, 2016 because he arrested Rogers sometime earlier for domestic violence in which Wendy was the victim.

{¶ 7} Rogers testified on his own behalf. Rogers stated that he and Wendy engaged in an argument on September 3, 2016. According to Rogers, Wendy yelled at him, threw his belongings around the house and yard, threatened him with a hammer, and discharged a pistol inside his home. While outside, Rogers observed a small vehicle make "a real dramatic turn" and then "come flying back up the street" where the driver "locked it up right there in front of [his] house * * *." Rogers walked to the driver's side of the vehicle and informed Mark he did not need to be there and that he should leave. During this interaction, Wendy repeatedly hit Rogers. Then, Mark opened the vehicle door and threatened to shoot Rogers. Wendy continued to hit Rogers, who observed Mark reach for a black handgun under the driver's side seat. Rogers pushed Wendy to the side, lunged forward, grabbed Mark's wrist, and "stretched him back in his car * * *." Rogers told Mark to drop the handgun. Mark refused to drop the handgun and Rogers hit him "once or twice," which caused Mark to drop the handgun to the floor of the vehicle. Rogers unsuccessfully attempted to pull Mark from the vehicle away from the handgun.

{¶ 8} At this point, Wendy repositioned herself between Rogers and Mark and resumed hitting Rogers. While Wendy remained between Mark and Rogers, Mark reached again for the handgun and Rogers punched him around Wendy. Then, Rogers pushed Wendy aside and Mark's holstered handgun "went flying into the middle of the street." Rogers struck Mark two more times, and once Mark surrendered, Rogers backed away from the vehicle.

{¶ 9} Wendy testified regarding the argument with Rogers and the phone call to Mark. Wendy stated Rogers punched Mark several times around her and that her back was facing Mark during the altercation. Wendy testified she did not observe Mark exit the vehicle or Rogers attempt to pull him from the vehicle. Additionally, Wendy did not observe a handgun at any point during the altercation and did not hear Rogers inform Mark to drop a handgun.

{¶ 10} At the close of the evidence, the trial court provided the jury with final jury instructions, which included instructions on the affirmative defense of self-defense and the inferior degree offense of aggravated assault, a fourth-degree felony. The jury found Rogers guilty of felonious assault and not guilty of aggravated assault. On July 10, 2017, the trial court sentenced Rogers to a three-year prison term.

{¶ 11} Rogers timely appealed from his conviction and sentence.

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ENTERING A JUDGMENT OF GUILTY BASED UPON INCONSISTENT JURY VERDICTS.

{¶ 14} Rogers contends that a not guilty verdict for the inferior degree offense of aggravated assault is inconsistent with a guilty verdict for felonious assault. Rogers argues this error requires this court to vacate his conviction and remand the matter for a new trial.

{¶ 15} The Ohio Supreme Court has distinguished between a lesser-included offense and an offense that is an "inferior degree" of the indicted offense. See State v. Deem , 40 Ohio St.3d 205, 208-09, 533 N.E.2d 294 (1988) (defining lesser included offense as an offense having a penalty of lesser degree than the indicted offense and which, as statutorily defined, also being committed, and some element of the greater offense is not required to prove the commission of the lesser offense); see id. (defining an inferior degree offense as one with identical elements, except for one or more additional mitigating elements).

{¶ 16} R.C. 2903.11(A)(1) defines felonious assault, in pertinent part, as no person shall knowingly cause serious physical harm to another. R.C. 2903.12 defines aggravated assault, in pertinent part, as "[n]o person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly * * * [c]ause serious physical harm to another * * *." "Because the elements of aggravated assault are identical to the elements of felonious assault, except for the additional mitigating element of provocation, aggravated assault is an offense of an inferior degree of felonious assault." State v. McOsker , 12th Dist. Clermont No. CA2016-05-025, 2017-Ohio-247, 2017 WL 283476, ¶ 14.

{¶ 17} Rogers cites a Tenth District opinion to support his argument that the jury returned inconsistent verdicts requiring reversal of his conviction. See State v. Howard , 10th Dist. Franklin No. 06AP-1273, 2007-Ohio-5659, 2007 WL 3072613. In Howard , the court reversed a conviction for aggravated menacing after finding the verdict inconsistent with the jury's not guilty verdict for menacing on the same count. Id. at ¶ 1, 10. The court reasoned that menacing is a lesser-included offense of aggravated menacing, and because the latter cannot be committed without committing the former, the inconsistent verdicts required reversal. Id. at ¶ 5. Rogers contends that this reasoning applies to the present case because an inferior degree offense versus a lesser-included offense is a "distinction without a difference." However, contrary to Rogers' argument, a distinction exists between the facts of this case and Howard because one may be convicted of felonious assault and not convicted of aggravated assault.

{¶ 18} Rogers further contends that interpreting the jury's findings of guilty for felonious and not guilty for aggravated assault requires a court to assume the jurors found Rogers failed to meet his burden in proving serious provocation. However, such conclusion is clearly demonstrated by the jury's findings and does not require an assumption to be made by the court. "[A] jury is presumed to follow instructions given by the trial court." State v. Swing , 2017-Ohio-8039, 98 N.E.3d 828, ¶ 81. The trial court instructed the jury that it must consider the offense of felonious assault and if it found the state failed to prove beyond a reasonable doubt all the essential elements of the offense of felonious assault, then the jury was to find Rogers "not guilty and not consider the inferior degree offense of aggravated assault. " If the jury found him guilty of felonious assault, then the jury was to continue deliberations "to decide whether [Rogers proved] by the greater weight of the evidence that he acted while he was under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite [Rogers] into using deadly force." The trial court further instructed the jury that if the jury found Rogers met his burden, then the jury must find Rogers guilty of aggravated assault and not guilty of felonious assault.

{¶ 19} Therefore, presuming the jurors followed the trial court's instructions, the record clearly indicates the jury found the state proved every element of felonious assault beyond a reasonable doubt. Then, as instructed by the trial court, the jury continued deliberations to determine whether Rogers proved serious provocation by the greater weight of the evidence. The jury's determinations of guilty for felonious assault and not guilty for aggravated assault clearly indicate the jury found Rogers failed to meet his burden with respect to the mitigating element of serious provocation because the elements of the two crimes are identical, except for the mitigating element.

{¶ 20} Accordingly, Rogers' first assignment of error is overruled.

{¶ 21} Assignment of Error No. 2:

{¶ 22} APPELLANT WAS DENIED THE RIGHT TO DUE PROCESS AND A FAIR TRIAL BY THE ADMISSION OF IRRELEVANT PRIOR BAD ACTS EVIDENCE.

{¶ 23} Rogers argues he suffered unfair prejudice at trial when the trial court admitted improper character evidence concerning a domestic violence charge involving him and Wendy because the only purpose in admitting the evidence was to demonstrate his bad character.

{¶ 24} Rogers failed to object to the admission of the evidence at trial; therefore, he waived all but plain error. See State v. Lamb , 12th Dist. Butler Nos. CA2002-07-171 and CA2002-08-192, 2003-Ohio-3870, 2003 WL 21686419, ¶ 13. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B). Plain error does not exist unless the error is obvious and but for the error, the outcome of the case would have been different.

State v. Blacker , 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, 2009 WL 3350404, ¶ 39. Notice of plain error is taken with the utmost caution and only under exceptional circumstances to prevent a manifest miscarriage of justice. Id.

{¶ 25} Pursuant to Evid.R. 404(A)(1), "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion * * *." Additionally, pursuant to Evid.R. 404(B)" '[e]vidence that an accused committed a crime other than the one for which he is on trial is not admissible 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.' " State v. Ward , 12th Dist. Clermont No. CA2013-07-059, 2014-Ohio-990, 2014 WL 1356709, ¶ 19, quoting State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. The state concedes the exceptions listed in Evid.R. 404(A)(1)-(3) and (B) are inapplicable to the present case. Therefore, we will not consider the statutory exceptions in our plain error analysis.

{¶ 26} After thoroughly reviewing the record, we find the trial court did not commit plain error in admitting the evidence regarding the prior domestic violence charge. At trial, the prosecutor solicited testimony from a responding officer that the officer had previously met Wendy when he had the occasion to arrest Rogers for domestic violence. Specifically, in response to whether he had met Wendy before, the arresting officer answered affirmatively and stated that he "arrested Mr. Rogers for domestic violence some time ago prior to this incident where [Wendy] was the * * * victim * * *." The responding officer testified he did not know the outcome of the prior arrest.

{¶ 27} Since Rogers did not object to the testimony by the responding officer, the prosecutor's intent in eliciting this testimony is unclear. Nonetheless, even assuming the testimony was violative of Evid.R. 404, the testimony does not amount to plain error because but for the admission of the testimony, the outcome of the trial clearly would not have been different. As discussed below, the record contains substantial evidence of Rogers' guilt and the jury's findings regarding serious provocation and self-defense were supported by the manifest weight of the evidence. See, e.g. , State v. Russell , 12th Dist. Butler No. CA2012-03-066, 2013-Ohio-1381, 2013 WL 1438000, ¶ 62 (finding trial court's admission of domestic violence conviction concerning, but did not amount to plain error because outcome of the trial clearly would not have been different).

{¶ 28} The responding officer briefly testified that he had arrested Rogers some time ago for an incident that involved Rogers and Wendy. Rogers contends the testimony unfairly prejudiced his theory of the case by demonstrating his affinity to violence. However, the prosecutor neither expanded upon this testimony nor made an argument based upon the testimony in closing argument. State v. Marcum , 2018-Ohio-1009, 109 N.E.3d 1, ¶ 40 (finding improperly admitted character evidence did not constitute plain error where the evidence was brief and primarily contextual). Rather, the focus of the trial regarded the facts supporting Rogers' conviction for felonious assault and whether Rogers met his burden with respect to proving self-defense and serious provocation. While Rogers correctly asserts the trial court did not provide a curative instruction immediately following the testimony, it did instruct the prosecutor to move on in the line of questioning. Therefore, based on the evidence presented and the brevity of the alleged problematic testimony, Rogers fails to demonstrate how the outcome of the trial clearly would have been different.

{¶ 29} Accordingly, Rogers' second assignment of error is overruled.

{¶ 30} Assignment of Error No. 3:

{¶ 31} THE VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 32} Rogers argues that the guilty verdict for felonious assault was against the manifest weight of the evidence because he established by a preponderance of the evidence that he acted in self-defense and while under sudden passion brought on by serious provocation from Mark.

{¶ 33} A manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. In making this determination, a reviewing court looks at the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Morgan , 2014-Ohio-2472, 14 N.E.3d 452, ¶ 34. "An appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal." State v. Couch , 12th Dist. Butler No. CA2016-03-062, 2016-Ohio-8452, 2016 WL 7626280, ¶ 8.

{¶ 34} Self-defense is an affirmative defense and the defendant bears the burden of proving self-defense by a preponderance of the evidence. State v. Gray , 12th Dist. Butler No. CA2010-03-064, 2011-Ohio-666, 2011 WL 497477, ¶ 42, citing R.C. 2901.05(A). To establish self-defense in a case where a defendant used deadly force, the defendant must prove each of the following elements: "(1) he was not at fault in creating the situation giving rise to the affray; (2) he had a bona fide belief he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of deadly force; and (3) he did not violate any duty to retreat or avoid the danger." Gray at ¶ 43, citing State v. Robbins , 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.

{¶ 35} With respect to aggravated assault, "[p]rovocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force." State v. Deem , 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph five of the syllabus. "In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must [first] be applied." State v. Shane , 63 Ohio St.3d 630, 634, 590 N.E.2d 272 (1992). Under an objective standard, "the provocation must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control." State v. McOsker , 12th Dist. Clermont No. CA2016-05-025, 2017-Ohio-247, 2017 WL 283476, ¶ 16. If the objective standard is met, "the inquiry shifts to a subjective standard, to determine whether the defendant in the particular case 'actually was under the influence of sudden passion or in a sudden fit of rage.' " State v. Mack , 82 Ohio St.3d 198, 201, 694 N.E.2d 1328 (1998), quoting Shane at 635, 590 N.E.2d 272. In so doing, the trial court must consider the "emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time." Deem at 211, 533 N.E.2d 294.

{¶ 36} After a thorough review of the record, we find that the jury could have reasonably concluded that Rogers failed to establish that he either acted in self-defense or was under serious provocation sufficient to incite or to arouse him into using deadly force.

{¶ 37} Rogers points to his testimony to support his contention that the jury clearly lost its way in finding he failed to prove self-defense and serious provocation by a preponderance of the evidence. However, there was ample evidence presented to allow the jury to reasonably conclude Rogers failed to meet his respective burdens. With respect to self-defense, Rogers argues that he was not at fault in creating the situation that resulted in the felonious assault because he asked Mark to leave, Rogers had a legitimate belief that he was in imminent danger because Mark reached for his gun and threatened to shoot him, and Rogers did not have a reasonable opportunity to retreat from this danger. Rogers contends the same circumstances provided the jury with evidence to reasonably find serious provocation.

{¶ 38} While Rogers testified regarding the circumstances asserted above, the inclination of the greater amount of credible evidence indicates the jury did not create a manifest miscarriage of justice in finding Rogers failed to meet his respective burdens. Specifically, Mark testified he received a call in the middle of the night from his frantic ex-wife, who claimed she was in trouble and needed him to pick her up. Mark testified he drove to Rogers' home and parked outside. Rogers approached the vehicle and began punching Mark in the head. The punches continued despite Wendy interjecting herself between the fray and included Rogers attempting to pull Mark from his vehicle. Mark admitted to having a holstered handgun beneath his driver's side seat, but denied threatening Rogers with the weapon or attempting to retrieve it. Photographic evidence along with medical records and testimony indicate Mark sustained serious injuries during the altercation. While testifying on behalf of Rogers, Wendy stated she did not hear Mark threaten Rogers with a handgun and did not observe Mark attempt to retrieve a handgun.

{¶ 39} Therefore, the circumstances of what occurred during the altercation differ in several aspects based on the evidence presented by the state and the defendant. "While this court considers the credibility of witnesses in a manifest weight analysis, the [fact-finder] remains in the best position to view the witnesses, observe their demeanor, and assess their credibility." State v. Fread , 12th Dist. Butler No. CA2013-03-045, 2013-Ohio-5206, 2013 WL 6199154, ¶ 29. "It is well established that when conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony." (Internal quotations omitted.) Id ., citing State v. Bates , 12th Dist. Butler No. CA2009-06-174, 2010-Ohio-1723, 2010 WL 1534060, ¶ 11.

{¶ 40} The mere fact the jury believed the evidence presented by the state over Rogers' testimony does not equate to a finding the jury clearly lost its way. Furthermore, the record does not indicate inconsistency or incredibility in the testimony presented by the state to render the evidence unreliable thereby creating a manifest miscarriage of justice. Rather, the state presented evidence the jury reasonably found credible, and thus, the jury's findings regarding self-defense and serious provocation were not against the manifest weight of the evidence.

{¶ 41} Accordingly, Rogers' third assignment of error is overruled.

{¶ 42} Assignment of Error No. 4:

{¶ 43} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN FINDING THAT HE COULD NOT OVERCOME THE PRESUMPTION IN FAVOR OF PRISON AT SENTENCING.

{¶ 44} Rogers contends his prison sentence is clearly and convincingly contrary to law because the trial court erred in making its findings pursuant to R.C. 2929.12 and 2929.13. Specifically, Rogers argues the trial court erred by stating it could not find Mark induced or facilitated the offense because the jury found Rogers failed to demonstrate serious provocation. Rogers argues the jury's finding against serious provocation does not necessitate the trial court's finding that Mark did not induce or facilitate the offense. Therefore, Rogers' sentence is contrary to law.

{¶ 45} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 ; accord State v. Crawford , 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, 2013 WL 3946242, ¶ 6. As explained in Marcum , "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion." (Emphasis omitted.) Marcum at ¶ 9. Rather, pursuant to R.C. 2953.08(G)(2), an appellate court may only "increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing" if the court finds by clear and convincing evidence "(a) [t]hat the record does not support the sentencing court's findings[,]" or "(b) [t]hat the sentence is otherwise contrary to law." R.C. 2953.08(G)(2)(a)-(b). Thus, "the language in R.C. 2953.08(G)(2) establishes an 'extremely deferential standard of review.' " Crawford at ¶ 8.

{¶ 46} A sentence is not "clearly and convincingly contrary to law where the trial court considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within the permissible statutory range." State v. Ahlers , 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, 2016 WL 2621510, ¶ 8, citing State v. Moore , 12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-5191, 2014 WL 6612502, ¶ 6.

{¶ 47} Pursuant to R.C. 2929.13(D)(1), for a second-degree felony, a prison term is necessary to comply with the principles and purposes of felony sentencing, that is, to punish the offender and protect the public from harm. State v. Holmes , 9th Dist. Lorain No. 07CA009165, 2008-Ohio-1321, 2008 WL 754882, ¶ 16. R.C. 2929.13(D)(2) permits a trial court to depart from this presumption and impose community control sanctions in lieu of prison if it finds both that the community control sanction would adequately punish the offender and protect the public from future crime, and that the imposition of a community control sanction would not demean the seriousness of the offense. In making such findings, the trial court shall consider the applicable factors set forth in R.C. 2929.12. R.C. 2929.13(D)(2)(a)-(b).

{¶ 48} After thoroughly reviewing the record, it is clear the trial court considered the principles and purposes of R.C. 2919.11, the recidivism factors of R.C. 2919.12, the requirements for overcoming the presumption of a prison term of R.C. 2929.13(D), properly imposed postrelease control, and sentenced Rogers within the permissible statutory range. In its consideration of R.C. 2929.12 and 2929.13(D), the trial court stated that some of the factors supported a finding against a presumption of prison. However, the trial court determined that because the jury found against serious provocation, the trial court would not find Mark facilitated the offense pursuant to R.C. 2929.12(C)(1) or that Rogers acted under strong provocation pursuant to R.C. 2929.12(C)(2).

{¶ 49} Contrary to Rogers' claim, the trial court did not make such determination as a matter of law, but rather, the trial court was indicating that it was not inclined to make factual findings contrary to the jury's determinations. In other words, the trial court interpreted the evidence consistent with, and similar to, the jury's interpretations of the evidence. The trial court was indicating its result would be no different than the result reached by the jury.

{¶ 50} Rogers argues the trial court stated it was obligated or prevented by law from making its own findings under the statute, and therefore, his sentence is contrary to law. The record does reflect that the trial court made findings consistent with the jury's factual determinations. However, the record does not demonstrate, as Rogers asserts, that the trial court made its findings as a matter of law. Moreover, despite the trial court's findings that some factors supported a determination against the presumption of a prison term, R.C. 2929.12 allows the trial court to consider and afford the weight given to any relevant factors in imposing a sentence. State v. Steger , 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, 2016 WL 6948166, ¶ 18.

{¶ 51} Accordingly, the sentence imposed by the trial court is not clearly and convincingly contrary to law and Rogers' fourth assignment of error is overruled.

{¶ 52} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.