author: OSOWIK, J.

text:
    STATE of Ohio, Appellee v. Michael C. HORN, Appellant
    No. WD-16-053
    Court of Appeals of Ohio, Sixth District, Wood County.
    Decided: March 2, 2018
    Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
    Neil S. McElroy, Toledo, for appellant.
    DECISION AND JUDGMENT
   OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas which, following a jury trial, found appellant guilty of six counts of rape with sexually violent predator specifications. For the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} Appellant, Michael C. Horn, was the 40 year old step-father and step-uncle to the two victims, S.M. and J.M., respectively, who were 13 to 14 years old at the times of the rapes. S.M. and J.M. are first cousins. On November 10, 2015, the Wood County prosecutor filed six bills of information against appellant: (Count 1) rape of S.M., in violation of R.C. 2907.02(A)(1)(c) and (B), a first degree felony, during time period 1; (Count 2) rape of S.M., in violation of R.C. 2907.02(A)(2) and (B), a first degree felony, during time period 1; (Count 3) rape of S.M., in violation of R.C. 2907.02(A)(1)(c) and (B), a first degree felony, during time period 2; (Count 4) rape of S.M., in violation of R.C. 2907.02(A)(2) and (B), a first degree felony, during time period 2; (Count 5) rape of J.M., in violation of R.C. 2907.02(A)(1)(c) and (B), a first degree felony, during time period 3; and (Count 6) rape of J.M., in violation of R.C. 2907.02(A)(2) and (B), a first degree felony, during time period 3. Following the jury trial held March 7-10, 2016, appellant was convicted on all six counts. The jury verdict judgment entry was journalized March 15, 2016.

{¶ 3} Each of the six counts also carried a sexually violent predator specification pursuant to R.C. 2941.148(A). Following a bench trial held July 26, 2016, appellant was convicted on all six counts of the sexually violent predator specifications. The sexually violent predator specification verdict judgment entry was journalized September 8, 2016.

{¶ 4} Subsequently on September 13, 2016, the trial court held the sentencing hearing. Appellee stipulated to the merger of Count 2 into Count 1, Count 4 into Count 3, and Count 6 into Count 5. For each of the Counts 1, 3 and 5, the trial court sentenced appellant to serve a prison term of ten years to life to be served consecutively. The trial court journalized the sentencing judgment entry on September 22, 2016 followed by a nunc pro tunc judgment entry on September 28, 2016.

{¶ 5} It is from the trial court's September 28, 2016, journalized judgment entry which appellant filed his appeal on October 17, 2016.

{¶ 6} Appellant sets forth five assignments of error:

I. The admission of other-acts testimony violated Mr. Horn's right to a fair trial, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution.
II. Application of the rape-shield law resulted in a deprivation of Mr. Horn's constitutional rights to confront and cross-examine witnesses, his right to present a defense, and his right to a fair trial and due process of law, in violation of the U.S. Constitution's Fifth, Sixth, and Fourteenth Amendments and Article I, Sections 10 and 16 of the Ohio Constitution.
III. Mr. Horn's conviction under the Sexually Violent Predator specification is against the manifest weight of the evidence.
IV. The trial court abused its discretion when it permitted a counselor to testify regarding Asperger's syndrome in violation of Evid.R. 401, 402, and 403 resulting in violation of Mr. Horn's right to a fair trial, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution.
V. Mr. Horn's convictions for violations of R.C. Sec. 2907.02(A)(1)(c) are not supported by legally sufficient evidence.

{¶ 7} Appellant's first, second and fourth assignments of error question the admissibility of evidence by the trial court and will be addressed together. We review a trial court's decision to admit or exclude evidence for abuse of discretion. State v. Richardson , 6th Dist. Lucas No. L-07-1214, 2010-Ohio-471, 2010 WL 497343, ¶ 66. Abuse of discretion connotes the record shows the trial court's decision was unreasonable, arbitrary or unconscionable. Id. The abuse of discretion must also create a material prejudice. State v. Teal , 6th Dist. Lucas Nos. L-15-1280, 2017-Ohio-7202, 2017 WL 3446991, ¶ 16.

{¶ 8} In order for the jury to find appellant guilty of rape in Counts 1, 3 and 5, appellee must prove beyond a reasonable doubt that appellant violated R.C. 2907.02(A)(1)(c), which provides:

No person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * (c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

{¶ 9} In order for the jury to find appellant guilty of rape in Counts 2, 4 and 6, appellee must prove beyond a reasonable doubt that: "No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." R.C. 2907.02(A)(2).

{¶ 10} For any rape crime, the victim need not prove physical resistance to the offender. R.C. 2907.02(C).

{¶ 11} The lengthy jury instructions stipulated by the parties and read to the jury contained all of the relevant definitions associated with the elements of these crimes.

Admissibility-"Other Acts" Evidence

{¶ 12} The focus of appellant's first assignment of error are Counts 1 through 4 for the rapes of S.M. Appellant argues Evid.R. 404(B) prohibits the introduction of "other acts" evidence of matters extrinsic to the operative facts of the underlying charges in order to prove the offenses alleged, and his due process rights were violated because these other acts were neither temporally related, nor circumstantially related, to the operative facts of the offenses alleged. Appellant argues S.M.'s testimony was not temporally related "regarding four other acts, some of which occurred at an unspecified time prior to the alleged incidents, and others that occurred six months after the charged offense in counts 1 and 2, and eight to nine months before the charged offense in counts 3 and 4." Appellant further argues S.M.'s testimony was not circumstantially related because "there was nothing so unusual or distinctive about spanking a bare bottom, offering to assist in shaving pubic hair, performing cunnilingus, or putting her hand on [appellant's] penis. And each of those instances was different from each other, and each was different from the two charged incidents."

{¶ 13} In response appellee argues the trial court did not abuse its discretion because uncharged sex crimes against the same victim by the same defendant are not subject to exclusion under Evid.R. 404(B)"for such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In addition to identifying the perpetrator, the other acts testimony also showed appellant's grooming plan to create a trust relationship with S.M. to submit to his sexual conduct. Appellee argues the other acts testimony was admissible because it was more probative than any unfair prejudice to appellant.

{¶ 14} Evid.R. 404(B) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

{¶ 15} Evidence of other acts may be used to show appellant is the actual individual who committed those offenses to establish a behavioral fingerprint to identify him as the perpetrator through the characteristics of the acts rather than through his character traits. Richardson , 6th Dist. Lucas No. L-07-1214, 2010-Ohio-471, 2010 WL 497343, at ¶ 69. The other acts evidence must also be temporally and circumstantially related to the operative facts of the charged offense. Id. at ¶ 70.

{¶ 16} Consideration of other acts evidence is a three-step analysis: (1) pursuant to Evid.R. 401 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; (2) whether the other acts evidence is presented solely 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; and (3) pursuant to Evid.R. 403 whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. Teal , 6th Dist. Lucas Nos. L-15-1280, 2017-Ohio-7202, 2017 WL 3446991, ¶ 18.

{¶ 17} The operative facts of the charged offenses begins our analysis. The record shows the first two rape convictions (Counts 1 and 2) involved digital penetration of S.M.'s vagina and stimulating her clitoris while she was asleep, when she was a ninth grader. The third and fourth rape convictions (Counts 3 and 4), also when S.M. was a ninth grader, involved digital penetration of her vagina and stimulating her clitoris followed by the insertion and use of sex toys in her vagina and anus while awake. In each instance S.M. was alone with the appellant at the home they shared and in a situation where she felt helpless and could not stop the rape. After each rape S.M. felt ashamed and isolated from her family, friends and teachers because "no one believed" her, and no one stopped appellant, even when she did tell adults. S.M. came to fear appellant. S.M.'s mother testified she observed appellant yell at S.M., and on one occasion it was "beyond normal dad behavior."

{¶ 18} The record also shows testimony regarding the following other acts evidence was discussed by S.M. and corroborated by one or more other witnesses.

{¶ 19} At trial S.M. testified to three separate events while an eighth grader: 1) appellant ordered her to drop her pants and panties and spanked her bare bottom and demanded she count the spanks and thank him for them; 2) appellant offered to shave her pubic hair; and 3) appellant gave her a birds-and-bees talk that involved appellant using his personal copy of the "Kama Sutra," which she described as "the Indian book on sex positions" with graphic pictures.

{¶ 20} At trial S.M. testified to two separate events while a ninth grader: 1) appellant ordered her to drop her pants and panties and he examined her vagina and clitoris with his tongue and fingers to make sure she's "not ripped up" and then examined her anus with his finger covered in Vaseline; and 2) while appellant wore boxer shorts and had a partial erection, he grabbed her hand to put it over his penis to demonstrate "he was too big for me and that if he would have raped me, it would have tore me up."

{¶ 21} Grooming is the process by which appellant took deliberate actions to expose S.M. to sexual material and to sexual behaviors to prepare S.M. for sexual activity. State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 21. The other acts testimony appeared to describe aspects of appellant's grooming process conditioning S.M. to submit to appellant's sexual behaviors that occurred while she was an eighth and ninth grader.

{¶ 22} The first step of other acts evidence analysis is pursuant to Evid.R. 401. Relevant evidence is generally admissible, while irrelevant evidence is inadmissible. Evid.R. 402. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. We find the other acts evidence about the grooming process was relevant that the rapes stated in Counts 1 through 4 were more probable than they would be without the evidence.

{¶ 23} The second step of other acts evidence analysis is pursuant to Evid.R. 404(B). We find the other acts evidence was presented for legitimate purposes other than solely about appellant's character, such as specifically identifying appellant as the perpetrator of the rapes in the absence of mistake or accident and to identify his plan or scheme or motive or intent to target the teenagers in the family and condition them to submit to his sexual conduct. Evid.R. 404(B) did not prohibit the introduction of such other acts evidence for those legitimate purposes.

{¶ 24} The third step of other acts evidence analysis is pursuant to Evid.R. 403, which states:

Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

Evid.R. 403(A). We find the probative value of the relevant other acts evidence substantially outweighed any danger of unfair prejudice. We do not find the other acts evidence resulted in material prejudice against appellant. The other acts evidence helped appellee to prove appellant's identity, motive, opportunity, preparation, and plan. The record does not indicate the jury was confused or misled by such other acts evidence.

{¶ 25} We find the trial court did not act unreasonably, arbitrarily or unconscionably and did not abuse its discretion regarding the admissibility of other acts evidence. Appellant's first assignment of error is not well-taken.

Admissibility-"Rape Shield" Evidence

{¶ 26} Appellant next argues Ohio's rape-shield law must yield to his Sixth Amendment right to confront the witnesses against him. The focus of appellant's second assignment of error are, again, Counts 1 through 4 for the rapes of S.M. Appellant argues he should have been able to introduce evidence of S.M.'s sexual activity with her teenage boyfriend to show that she had a reason to fabricate the allegations against appellant. Appellant argues S.M's reason to fabricate was in response to her mother and appellant forbidding S.M. from seeing her boyfriend. S.M.'s parents were divorced and shared custody of her. Appellant argues S.M. wanted to move in full-time with her biological father for his "relaxed" parenting standards.

{¶ 27} In response appellee argues the trial court did not abuse its discretion because the purpose and spirit of the rape shield law is intended for precisely the facts in this case.

{¶ 28} Ohio's rape shield law states in part as follows:

Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

R.C. 2907.02(D).

{¶ 29} We find the record shows appellant did not seek to introduce evidence of specific instances of S.M.'s sexual activity, opinion evidence of S.M.'s sexual activity, or reputation evidence of S.M.'s sexual activity for any allowable reason. Appellant did not seek to introduce evidence of the origin of semen, pregnancy, or disease, or S.M.'s past sexual activity with appellant, which are the limited allowances by statute. Appellant sought to attack S.M.'s credibility by providing a reason to fabricate the allegations against appellant. "Evidence of sexual activity offered merely to impeach the credibility of the witness is not material to a fact at issue in the case and must be excluded." State v. Ector , 6th Dist. Lucas No. L-07-1169, 2009-Ohio-515, 2009 WL 282409, ¶ 21. The record shows the jury heard testimony from eight witnesses other than S.M., including forensic DNA evidence and expert testimony regarding the alleged sex toys used in Counts 3 and 4. The jury, as the trier of the facts, determined credibility of all the evidence, including the nine witness testimonies. State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 165.

{¶ 30} We find the record confirms the jury heard appellant cross-examine S.M. about her motives to fabricate her rape claims against appellant, including references to S.M.'s boyfriend, and S.M. answered each question. Perhaps S.M.'s answers did not support appellant's defense theory, but the application of the rape shield law did not deprive appellant of material evidence to a fact at issue nor deny testimony that was more probative than prejudicial. State v. Coffey , 6th Dist. Lucas No. L-12-1047, 2013-Ohio-3555, 2013 WL 4401316, ¶ 24. We find the fact that appellant confronted S.M. through appropriate, meaningful cross-examination confirmed there was no violation of the Confrontation Clause. State v. Craig , 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 81. Appellant's opportunities during cross-examination to expose S.M.'s motives to fabricate her claims did not raise Sixth Amendment concerns. State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 172.

{¶ 31} Nor did the application of the rape shield law deprive appellant of the meaningful cross-examination of S.M. and her biological parents regarding the alleged motive of "relaxed" parenting standards. S.M. testified that in contrast to her step-father "my dad, he gives me-at some point he gives me a chance to express my opinion, tell him yes or no, and he'll actually listen to me." S.M.'s dad testified S.M. "was pretty honest with me because I always kind of had a really good relationship with that." S.M.'s mom testified she can think of nothing that would motivate both S.M. and J.M. to fabricate the rape allegations against appellant.

{¶ 32} We find the trial court did not act unreasonably, arbitrarily or unconscionably and did not abuse its discretion regarding the inadmissibility of evidence under the rape shield law. Appellant's second assignment of error is not well-taken.

Admissibility-"Asperger's Syndrome" Evidence

{¶ 33} Appellant next argues the trial court abused its discretion by admitting irrelevant testimony from J.M.'s school counselor about Asperger's syndrome"for no purpose other than to unfairly prejudice the defendant and mislead the jury." Appellant argues "there was no other evidence that the victim of counts 5 and 6 [J.M.] was suffering any substantial impairment because of a mental or physical condition." As a result, appellant argues he did not receive a fair trial.

{¶ 34} In response appellee argues the trial court did not abuse its discretion because the school counselor's testimony was from her personal experience with her own foster children diagnosed with Asperger's syndrome, which was relevant evidence under Evid.R. 401. Appellee further argues the school counselor's testimony was not unduly prejudicial to appellant because she had personally met with J.M. and had personal experience with and training in counseling students involved with sexual and physical abuse. Appellee never sought the school counselor to be classified as an expert witness.

{¶ 35} Contrary to appellant's assertion, there was relevant evidence that J.M. suffered from a mental condition other than Asperger's syndrome. The record shows that J.M.'s mom testified J.M. was diagnosed at age three with ADHD and took the same medications as appellant. It was appellant who explained to J.M.'s mom (his sister-in-law) what effect the medicines had. There was also testimony from J.M. describing her physics class in high school as, "Isn't physics, like, gym or something?" The testimony J.M. provided, both on direct and cross-examination, was sufficient to show that a rational jury could reach its own conclusions as to J.M.'s mental condition referred to by multiple witnesses as "low functioning" and whether that condition rendered her "substantially impaired."

{¶ 36} "Substantial impairment" is "a present reduction, diminution or decrease in the victim's ability, either to appraise the nature of his conduct or to control his conduct." State v. Zeh , 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414 (1987). "Substantial impairment does not have to be proven by expert medical testimony; rather, it can be shown to exist by the testimony of people who have interacted with the victim, and by allowing the trier of fact to do its own assessment of the person's ability to appraise or control his or her conduct." State v. Brady , 8th Dist. Cuyahoga No. 87854, 2007-Ohio-1453, 2007 WL 926365, ¶ 78 ; State v. Acosta , 6th Dist. Lucas No. L-09-1120, 2010-Ohio-5166, 2010 WL 4157283, ¶ 22. The determination of substantial impairment is made on a case-by-case basis with "great deference" to the trier of fact. State v. Brown , 5th Dist. Richland No. 2016 CA 0043, 2017-Ohio-1114, 2017 WL 1155069, ¶ 47.

{¶ 37} J.M.'s school counselor testified she received specialized training as a "counselor to identify the telltale signs of sexual abuse or physical abuse" in addition to "extensive training" due to being a therapeutic foster parent to special needs children for 20 years. Some of her special needs foster children had Asperger's syndrome, which she described as a disorder where the person is socially awkward and does not know how to evaluate a social situation. The school counselor did not provide an opinion about J.M. and Asperger's syndrome. The school counselor testified a teacher referred J.M. to her because the teacher was concerned with J.M.'s grades dropping, poor hygiene, and her transformation into a withdrawn and untalkative girl. J.M. eventually told the school counselor about appellant forcing her to perform fellatio and "family members that were angry that didn't want her to tell." The school counselor testified after J.M.'s disclosure she did not see improvement in her grades, hygiene or stress "because this was an ongoing situation * * * there wasn't a resolution for her to have an end to it."

{¶ 38} We find the trial court did not act unreasonably, arbitrarily or unconscionably and did not abuse its discretion regarding the admissibility of J.M.'s school counselor testimony. Appellant's fourth assignment of error is not well-taken.

Manifest Weight

{¶ 39} In support of his third assignment of error, appellant argues appellee failed to meet its burden of proving beyond a reasonable doubt that appellant is a sexually violent predator. Appellant argues the expert testimony was inconclusive for determining recidivism with any certainty and at best was "very low."

{¶ 40} In response appellee argues appellant argues there was no miscarriage of justice by the trial court, and the trial court's determination of the weight and credibility of the evidence must be accorded due deference.

{¶ 41} "A challenge to the weight of the evidence questions whether the greater amount of credible evidence was admitted to support the judgment than not." Flowers v. Siefer , 6th Dist. Lucas No. L-16-1002, 2017-Ohio-1310, 88 N.E.3d 599, ¶ 94. This court has repeatedly stated that in determining whether a verdict is against the manifest weight of the evidence, we review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way to create such a manifest miscarriage of justice as to require a new trial. State v. Reynolds , 6th Dist. Lucas No. L-16-1021, 2017-Ohio-1478, 89 N.E.3d 235, ¶ 47. A conviction will be overturned only in exceptional cases. Id. Every "reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts." Flowers at ¶ 94.

{¶ 42} It is well established that the trier of fact has the sole duty to decide what weight should be given to the testimony of any witness, including experts. Kokitka v. Ford Motor Co. , 73 Ohio St.3d 89, 92, 652 N.E.2d 671 (1995) ; State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. We will not reverse those decisions absent an abuse of discretion where the record shows the decision was unreasonable, arbitrary or unconscionable. Flowers at ¶ 59 ; Kinn v. HCR ManorCare , 2013-Ohio-4086, 998 N.E.2d 852, ¶ 14 (6th Dist.). The trier of fact heard the testimony, viewed witness demeanor, gestures and voice inflections and ultimately resolved any conflicting evidence presented at the trial. State v. Schwamberger , 6th Dist. Lucas No. L-13-1236, 2014-Ohio-4733, 2014 WL 5421042, ¶ 21. A "conviction is not against the manifest weight of the evidence simply because the fact finder believed the prosecution testimony." Id.

{¶ 43} Pursuant to R.C. 2971.02, appellant elected to have the trial court, instead of a jury, determine the sexually violent predator specifications following his jury convictions on the underlying rape charges.

{¶ 44} A "sexually violent predator" is defined as "a person who, on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." R.C. 2971.01(H)(1). A "sexually violent offense" is essentially defined as "a violent sex offense." R.C. 2971.01(G)(1). A "violent sex offense" is defined, in part, as a "violation of section 2907.02 * * * of the Revised Code." R.C. 2971.01(L)(1).

{¶ 45} Appellant's convictions for offenses pursuant to R.C. 2907.02(A)(1)(2) and 2907.02(A)(2) are by definition "sexually violent offenses." Appellant's offenses occurred after January 1, 1997. The remaining issue for the trier of fact was the determination if appellant "is likely to engage in the future in one or more sexually violent offenses." That determination must be proven by appellee beyond a reasonable doubt. State v. Williams , 88 Ohio St.3d 513, 532, 728 N.E.2d 342 (2000).

{¶ 46} The trial court, as the trier of fact, is presumed to have considered "only the relevant, material, and competent evidence" in arriving at its sexually violent predator judgments unless it affirmatively appears to the contrary. State v. Arnold , 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. Here there is no showing the presumption should not apply.

{¶ 47} According to the plain language of the statute, the General Assembly offers six factors to the trier of fact it "may" consider "as evidence tending to indicate that there is a likelihood that a person will engage in the future in one or more sexually violent offenses." R.C. 2971.01(H)(2)(a)-(f). Significantly, there is a broad catch-all factor of "any other relevant evidence." R.C. 2971.01(H)(2)(f). While a trier of fact is not required to consider any of those six factors, some appellate jurisdictions have concluded that consideration of any one is appropriate. State v. Sopko , 8th Dist. Cuyahoga No. 90743, 2009-Ohio-140, 2009 WL 97705, ¶ 48 ; State v. Person , 9th Dist. Summit No. 27600, 2016-Ohio-681, 2016 WL 756930, ¶ 24 ; State v. T.E.H. , 10th Dist. Franklin Nos. 16AP-384, 2017-Ohio-4140, 2017 WL 2442803, ¶ 72 ; State v. Cartwright , 12th Dist. Preble No. CA2012-03-003, 2013-Ohio-2156, 2013 WL 2313663, ¶ 27. We agree.

{¶ 48} The transcript of the sexually violent predator bench trial, and the trial court's subsequent journal entry, each confirm the trial court considered all of the evidence and also specifically considered the R.C. 2971.01(H)(2)(c) and (f) factors when it determined appellee had proven beyond a reasonable doubt that appellant is guilty of the sexually violent predator specifications. Competing expert testimony and reports were among the record of evidence. The record also shows that despite his convictions, the expert witnesses testified that appellant denied his culpability and lacked remorse for the rapes against S.M. and J.M.

{¶ 49} The trial court ultimately reached its verdict and stated in the judgment entry journalized September 8, 2016:

Specifically, the Court finds the facts of the current offenses-that Defendant committed multiple sexually violent offenses over a period of sixteen months, with two juvenile victims around the age of fourteen, both with a familial relationship to the Defendant-demonstrate Defendant is likely to engage in the future one or more sexually violent offenses.

{¶ 50} We reviewed the entire record in this case and do not find the trial court lost its way or created a manifest miscarriage of justice in determining appellant's guilt beyond a reasonable doubt for each sexually violent predator specification. We will not disturb the trial court's findings.

{¶ 51} Appellant's fourth assignment of error is not well-taken.

Sufficiency of Evidence

{¶ 52} In support of his fifth assignment of error, appellant argues appellee failed to produce legally sufficient evidence to support the convictions. Appellant argues there was insufficient evidence that S.M. (in Counts 1 and 3) and J.M. (in Count 5) were substantially impaired by a physical or mental condition pursuant to R.C. 2907.02(A)(1)(c). For Count 1, appellant argues that sleep is not uniformly recognized by the district courts as a substantial impairment, as the cases appear to "involve the abuse or overuse of drugs and or alcohol." For Counts 3 and 5, appellant urges this court to determine the evidence was insufficient to conclude the victims were impaired to the requisite "substantial" degree.

{¶ 53} In response appellee argues there were three avenues of legally sufficient evidence regarding substantial impairments of the victims and known by appellant: "In one instance, the victim was asleep during the rape. In another rape, the victim was low functioning. In another rape, the disparity of power in the familial relationship caused the substantial impairment." No expert testimony was required. Appellee argues the jury was the trier of fact and rationally determined, after viewing the evidence in a light most favorable to the prosecution, the essential elements of the crimes were proven beyond a reasonable doubt.

{¶ 54} Our role in reviewing a challenge to the sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. State v. Beasley , 2018-Ohio-493, 2018 WL 915251, ¶ 207 (slip opinion). It asks whether the evidence was legally sufficient to support the guilty verdict as a matter of law, irrespective of evaluating witness credibility. Id. "This standard is very narrow and tests only whether there was evidence presented which supports each element of the prima facie case." Flowers , 6th Dist. Lucas No. L-16-1002, 2017-Ohio-1310, 88 N.E.3d 599, at ¶ 83.

{¶ 55} The prima facie case for Counts 1, 3 and 5 pursuant to R.C. 2907.02(A)(1)(c) are: (1) sexual conduct, (2) with one not the offender's spouse, (3) when the other person's ability to resist or consent is substantially impaired by a mental or physical condition, and (4) the offender knows or has reasonable cause to believe the other person is substantially impaired by such condition. In re J.J. , 6th Dist. Erie No. E-11-018, 2012-Ohio-2550, 2012 WL 2061612, ¶ 21.

{¶ 56} With respect to Count 1, the record evidence shows S.M. testified she was asleep, her body relaxed, following appellant's massaging of her upper body around bed time, and when she awoke appellant's fingers were inside her vagina.

Q: When you were asleep, were you able to resist or consent with what Mike was doing to you?
A: No.
Q: Again, that was why?
* * *
A: Because I was asleep at that point.

{¶ 57} Contrary to appellant's assertions, this court has addressed the issue of sleep as a "substantial impairment." "A jury can reasonably conclude that the defendant knew the victim was substantially impaired and unable to object to the defendant's conduct if there was evidence that the victim was in a state of deep sleep or drunkenness. State v. Anderson , 6th Dist. Wood No. WD-04-035, 2005-Ohio-534, 2005 WL 327179, ¶ 41. Here, there was evidence S.M. was asleep at the time of the rape.

{¶ 58} The record includes evidence from which the jury can reach its own determination as to S.M.'s ability to resist or consent and being substantially impaired because of a mental or physical condition of which appellant knew or should have known. Using the test of sufficiency, we find any rational trier of fact could have found evidence supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c) for Count 1 beyond a reasonable doubt.

{¶ 59} With respect to Count 3, the record evidence shows S.M. repeatedly testified how she felt helpless to stop the rape by her step-father. While Count 3 was occurring, S.M. was afraid of appellant's temper and was resigned to the helplessness of a child who expected no adult would believe her about what her step-father did to her. S.M.'s testimony included statements such as, "I felt if I didn't do [what he commanded], he was going to do it anyways," and "[my step-father] gets these very stern looks on is face every time that you challenge him. When he has that look, it does not go well. * * * If I would disobey him, he would definitely start yelling [and I'd be afraid he would hurt me or my mother]." S.M.

further testified, "I figured nobody would end up believing me. And if I told my mom she would have ended up asking him about it, he would have denied it, and she wouldn't believe me." Upon further questioning, S.M. explained how she coped.

Q: What was going through your head as all of this was happening [the Count 3 and 4 rapes]?
A: I tried to block everything that was going on out of my head.
Q: How did you manage that?
A: I ended up just staring off to the side.
Q: Did you find something to look at?
A: I ended up looking at my mother's jewelry box.

{¶ 60} The record includes evidence from which the jury can reach its own determination as to S.M.'s ability to resist or consent being substantially impaired because of a mental or physical condition of which appellant knew or should have known. Using the test of sufficiency, we find any rational trier of fact could have found evidence supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c) for Count 3 beyond a reasonable doubt.

{¶ 61} With respect to Count 5, the record evidence shows J.M. testified that "Uncle Mike" also gave her a birds-and-bees talk when she was either 13 or 14 years old and showed her a video using his computer with "people doing anal sex." J.M. was uncomfortable having appellant give her that talk rather than her mother. Then soon after J.M. turned 14 years old, she was at appellant's house to spend the night, which was a frequent, necessary occurrence due to transportation arrangements for her to get to school. That night she was not yet asleep, and appellant came to her room. He told her to come with him to another bedroom where they were alone. He removed his boxer shorts and guided her mouth to his penis for fellatio. She felt she had no choice but to obey appellant "because he was family." Many witnesses described J.M. as "low functioning." J.M. testified she was scared and tried to cope with the situation by "shutting down."

Q: What was going through your head when that happened?
A: At that time my brain was starting to shut down as I was getting scared and creeped out. * * * I was really scared, and I really didn't know what to do.

{¶ 62} The record includes evidence from which the jury can reach its own determination as to J.M.'s ability to resist or consent being substantially impaired because of a mental or physical condition of which appellant knew or should have known. Using the test of sufficiency, we find any rational trier of fact could have found evidence supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c) for Count 5 beyond a reasonable doubt.

{¶ 63} Appellant's fifth assignment of error is not well-taken.

{¶ 64} On consideration whereof, we find that substantial justice has been done in this matter and the judgment of the trial court to be lawful. The judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Arlene Singer, J.

CONCUR.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Prentiss R. HARE, Defendant-Appellant
    No. 2017-CA-4
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered on March 2, 2018.
    ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor's Office, Appellate Division, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee
    DARRELL L. HECKMAN, Atty. Reg. No. 002389, One Monument Square, Suite 200, Urbana, Ohio 43078, Attorney for Defendant-Appellant
   HALL, J.

{¶ 1} Prentiss Hare appeals his convictions for aggravated robbery and felony murder. Finding no error, we affirm.

I. Background

{¶ 2} Hare was indicted on four counts following the death of Dashun Lumford: purposeful murder, felony-murder with a predicate offense of aggravated robbery, felony-murder with a predicate offense of felonious assault, and aggravated robbery. The case was tried to a jury, which heard the following evidence.

The death

{¶ 3} Donald Walton lived in a duplex at 12 South Light Street in Springfield, Ohio. On the morning of December 4, 2015, a Friday, Walton was at home with two friends, Sylvester Howard and Hare. Walton went to a pharmacy for some medicine and returned a couple hours later to find, in addition to Howard and Hare, two other people in his duplex, Ashley Cromlish and Dashun Lumford. Cromlish, an admitted drug addict, was there to buy drugs. She bought crack cocaine from Lumford and smoked it in the house. According to Howard, Lumford also gave some crack to Hare "on credit." When Hare wanted more, Lumford told him that he would have to pay. So, said Howard, Hare went out and sold some food stamps and came back with $70. Hare then bought crack from Lumford until the $70 was gone. Howard testified that everyone was smoking crack and that Cromlish used some heroin that Lumford had given her. Howard also mentioned that Hare was angry because, on a previous occasion, Lumford had sold him bad crack.

{¶ 4} Later, Howard and Walton were sitting in the living room-a smallish rectangular room with a couch and a love seat on opposite walls and a bed on the floor between them. Cromlish testified that Hare and Walton had told her to "go to the bathroom and stay there." (Tr. 351). But Howard testified that Cromlish had gone to the kitchen to shoot up the heroin that she had gotten from Lumford. Lumford walked into the living room. Suddenly, Hare entered the living room behind Lumford, grabbed him around the throat from behind, and lifted Lumford into the air. The two men fell onto the bed, with Hare landing on top. Hare continued to strangle Lumford from behind with his hands, according to Howard; Walton testified that Hare strangled Lumford using both arms. Lumford barely resisted.

{¶ 5} Howard testified that he grabbed Hare, trying to stop him, but Walton grabbed him. Howard then fled the house. As he was leaving, he heard Hare tell him or Walton to get the money from Lumford. According to Walton, Hare continued to strangle Lumford for five to ten minutes.

{¶ 6} Cromlish testified that while she was in the bathroom, she heard a "thump." She hesitantly opened the bathroom door and saw Hare and Walton carrying Lumford's body through the kitchen and out the back door. Cromlish asked if Lumford would be okay, and one of them replied that he would. Cromlish testified that they threatened her, saying that if she said anything, they would hurt her. She then ran out of the house. Cromlish said that later she was with Hare and some others when she heard Hare say to one of them, "I did it again, I did it again." (Id. at 353).

{¶ 7} Walton testified that he and Hare left the house and stopped for a beer, for which Hare paid cash. Then they went to a church to have dinner. While there, someone said that a body had been found behind Walton's house.

{¶ 8} According to Howard, sometime later he sold Hare crack. He said that Hare threatened him, saying, "What happened to him [Lumford] can happen to you if you don't keep your mouth shut." (Tr. 384).

The discovery of the body

{¶ 9} Just a few feet from Walton's duplex is a convenience store called the Main Stop. A little before 3 p.m. that Friday, a Vectren Gas employee found Lumford's body behind the store. He noticed that Lumford's pants and shoes had been removed, with the shoes beside the body and a pair of blue jeans on or near Lumford's head. After getting no response from Lumford, the Vectren employee went into the Main Stop and called 911. When he returned to the body a few minutes later, the pants were gone. The employee noticed what appeared to be drag marks leading away from the body. His impression was that Lumford had been robbed.

{¶ 10} Springfield police officer Jerry Bowen and Detective James McCutcheon responded to the scene. Both men noticed a small abrasion on Lumford's neck. Based on the abrasion, Lumford's missing pants, and the lack of other physical indicia of overdose, neither Bowen nor McCutcheon believed that Lumford had died from a drug overdose. Officer Bowen photographed the scene, including what appeared to be drag marks from the body leading to the rear of Walton's duplex. Police officers found no one inside the duplex.

The investigation

{¶ 11} The following Monday, Howard voluntarily went to the police and told them what he knew about Lumford's death. Howard identified Hare from a photo lineup. That same day, based on Howard's information, Detective McCutcheon sought out Walton and Cromlish and spoke with them both. He obtained Walton's consent to search the duplex.

{¶ 12} Kisha Wheeler watched from the street as Walton got into the detective's car. She then entered the duplex, where she had been earlier in the day, and found Hare inside alone. She had heard that a body had been found outside and asked Hare about it. Wheeler testified that Hare then confessed that he had killed Lumford, saying that he killed him by "affixiation." (Tr. 657). She said that he told her that he had killed Lumford for "fleecing" him, for selling him bad cocaine. Hare told Wheeler that he and another person had taken Lumford's body outside. They had been talking for only about ten minutes when Detective McCutcheon arrived to search the premises. Hare was taken into custody.

{¶ 13} During the search of the duplex, police found a pair of blue jeans under the kitchen sink. Walton told police that the blue jeans may be Lumford's, and a DNA analysis of the jeans confirmed this. Police also recovered a cell phone that belonged to Hare on which they found a text message sent on December 4, 2015, that said, "Lol oops I did it again...." (Id. at 730; State's Exhibit 13). Hare denied any involvement in Lumford's death.

The cause of death

{¶ 14} Deputy Montgomery County Coroner Dr. Robert Schott autopsied Lumford's body on December 5, 2015. Dr. Schott found that Lumford's lungs were "heavy" from an accumulation of "extra blood and frothy-like watery fluid." (Tr. 457). This is a common finding in overdose cases, said Schott, but there are other causes. Dr. Schott collected samples of various fluids and sent them to the toxicology lab for analysis. His initial findings were "pulmonary congestion and edema, suspected drug overdose based on history and heavy lungs, [and] small abrasions of the neck and forehead." (Id. at 460).

{¶ 15} After speaking with Howard, Walton, and Cromlish, Detective McCutcheon contacted Dr. Schott and told him that witnesses had said that Lumford was strangled. So Dr. Schott re-examined Lumford's body. Other than the abrasion on the neck, Dr. Schott found no other unusual neck injuries. But he did find small hemorrhages of the blood vessels in Lumford's eyes, called petechiae. Dr. Schott explained that these ruptures are caused by increased blood pressure in the eyes, which occurs when the veins in the neck (but not the arteries) are compressed such that blood cannot flow back to the heart. Dr. Schott revised his initial findings to strangulation and ruled out an overdose, pending the toxicology analysis.

{¶ 16} The toxicology analysis showed that when Lumford died, he had several drugs in his system, including marijuana and high concentrations of cocaine, fentanyl, and heroin. Dr. Schott testified that these concentrations are not necessarily fatal. But he said that the drug concentrations in Lumford's system were sufficient to produce intoxication. Based on the witness reports of strangulation, the neck abrasion, and the petechiae, it was Dr. Schott's opinion that the cause of death was strangulation.

{¶ 17} Hare presented the testimony of two experts. Dr. Francisco Diaz, a forensic pathologist who worked for the Wayne County, Michigan Coroner, strongly disagreed with Dr. Schott's conclusion on the cause of death. Strangulation, said Dr. Diaz, results in obvious injuries, which are not found in this case. Lumford, he said, did not have the significant injuries to the neck structures that you would expect to find. Medical toxicologist Dr. Glen Burns testified that Lumford had lethal levels of opiates in his system and that the concentration of fentanyl was five times the potentially lethal dose. Dr. Burns testified that Dr. Schott's reliance on petechiae to show strangulation is unjustified because petechiae are not diagnostic and may come from multiple sources.

{¶ 18} The jury found Hare not guilty of purposeful murder (Count 1) but found him guilty of the remaining counts-felony-murder with the predicate offense of aggravated robbery (Count 2), felony-murder with the predicate offense of felonious assault (Count 3), and aggravated robbery (Count 4). The trial court merged Counts 2 and 3 for sentencing purposes, and the state elected sentencing on Count 3. The court sentenced Hare to an aggregate prison term of 26 years to life.

{¶ 19} Hare appealed.

II. Analysis

{¶ 20} Hare presents six assignments of error. The first two challenge the sufficiency of the evidence supporting aggravated robbery and felony murder. The third assignment of error challenges the manifest weight of the evidence as to the cause of death. The fourth assignment of error challenges the admission of "other acts" evidence. The fifth assignment of error challenges Hare's exclusion from certain portions of the trial. Lastly, the sixth assignment of error presents a claim of ineffective assistance of trial counsel.

A. The evidence of aggravated robbery is sufficient.

{¶ 21} The first assignment of error alleges that the evidence is insufficient to show that Hare committed aggravated robbery.

{¶ 22} "When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed but, rather, whether the evidence, 'if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.' " State v. Pountney , Ohio Sup. Ct. Slip Opinion No. 2018-Ohio-22, 2018 WL 328882, ¶ 19, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "The relevant inquiry is whether, after viewing the evidence in the 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." Jenks at paragraph two of the syllabus.

{¶ 23} Hare was convicted of aggravated robbery under R.C. 2911.01(A)(3), which states: "No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, * * * shall * * * [i]nflict, or attempt to inflict, serious physical harm on another." The state's theory was that Hare took the $70 from Lumford that Hare had given him for the crack. Hare argues that there is no evidence that he took, or attempted to take, anything from Lumford.

{¶ 24} The evidence shows that after smoking crack that Lumford had given him, Hare wanted more. Lumford demanded payment, so, having no money, Hare went out and sold food stamps, returning with $70 cash. Hare then bought $70 worth of crack from Lumford. Howard testified that as he was leaving, after Hare started strangling Lumford, Hare told him to retrieve the money from Lumford. No money was found in Lumford's pants, which were stashed under the kitchen sink. Also, later that day, despite having given all the cash he had to Lumford for the crack, Hare bought beer for himself and Walton. Of course, the money that Hare used could have come from a source other than Lumford. But no evidence of some other source was presented.

{¶ 25} Viewing the evidence in the light most favorable to the state, the evidence is sufficient to find that, after strangling him, Hare took money from Lumford.

{¶ 26} The first assignment of error is overruled.

B. The evidence of felony murder is sufficient.

{¶ 27} The second assignment of error alleges that the evidence is insufficient to show that Hare committed felony murder.

{¶ 28} Hare was convicted of felony murder under R.C. 2903.02(B), which states: "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code."

{¶ 29} The predicate felony offense here is aggravated robbery. Hare's second assignment of error argument is premised on the conclusion that the evidence of the predicate offense is insufficient. He argues that because there was insufficient evidence to establish aggravated robbery, the evidence that he committed felony murder must also be insufficient. Because we concluded that the evidence is sufficient to find that Hare committed aggravated robbery, his sufficiency argument fails.

{¶ 30} The second assignment of error is overruled.

C. The evidence supports the finding that Hare strangled Lumford.

{¶ 31} The third assignment of error alleges that the evidence is insufficient to establish the cause of death. Hare's argument, though, appears to challenge the manifest weight of the evidence. He argues that the evidence shows that Lumford died from a drug overdose.

{¶ 32} The manifest weight of the evidence must be distinguished from the evidence's sufficiency, and a different standard of review must be applied:

In contrast [to a sufficiency challenge], a manifest-weight challenge "concerns 'the inclination of the greater amount of credible evidence * * * to support one side of the issue rather than the other.' " (Emphasis sic.) State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). A manifest-weight challenge requires us to consider the entire record, including the credibility of the witnesses, the weight of the evidence, and any reasonable inferences and determine whether " 'the [panel] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id. , quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983) ; accord R.C. 2953.02.

State v. Montgomery , 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 75. "The credibility of the witnesses and the weight to be given to their testimony is a matter for the trier of facts, the jury here, to resolve." State v. White , 2d Dist. Montgomery No. 20324, 2005-Ohio-212, 2005 WL 120059, ¶ 65, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). "This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict." (Citation omitted.) Id. at ¶ 67.

{¶ 33} The state's expert witness, deputy coroner Dr. Robert Schott, testified that he initially found that Lumford died from a drug overdose. He said that he re-examined Lumford's body after Detective McCutcheon told him that witnesses had said that Lumford was strangled. Dr. Schott found no unusual neck injuries, other than the abrasion. But he did find small hemorrhages, petechiae, in Lumford's eyes that are consistent with strangulation. Dr. Schott testified that based on the new information and his re-examination he revised his initial findings to "possible manual strangulation" and ruled out an overdose. (Tr. 476).

{¶ 34} The results of the toxicology analysis did not change Dr. Schott's opinion on the cause of death. The analysis revealed that when Lumford died he had high concentrations of several drugs in his system-cocaine, fentanyl, heroin, and other opiates. Dr. Schott acknowledged that the concentration of fentanyl was higher than most fatal overdoses he had seen and that heroin can kill at any concentration. But he said that the concentrations in Lumford were not necessarily fatal, though they were enough to produce intoxication. Dr. Schott testified that without knowing about the allegations that Lumford was strangled, he would have concluded that overdose was the cause of death. As it was, though, based on the witness reports, the neck abrasion, and the petechial hemorrhages, it was Dr. Schott's opinion that Lumford was strangled.

{¶ 35} That Lumford did not die from a drug overdose but was strangled is supported by the testimony of other witnesses. Officer Bowen and Detective McCutcheon both testified that, based on their experience, Lumford's death did not look like an overdose. Both Howard and Walton testified that Hare strangled Lumford. And Wheeler testified that Hare confessed to her that he killed Lumford by "affixiation." (Tr. 657). Wheeler also said that Hare told her that his motive for killing him was that Lumford had sold him bad crack. Howard too testified that Hare was mad at Lumford because Lumford had sold him bad crack. Cromlish testified that she saw Hare and Howard carrying Lumford's body out of the house and that they threatened her. Howard said that Hare threatened him too. Cromlish also said that she heard Hare say to someone, "I did it again, I did it again." (Id. at 353). And Hare later used the same phrase in a text message that he sent: "Lol oops I did it again...." (Id. at 730; State's Exhibit 13).

{¶ 36} Forensic pathologist Dr. Francisco Diaz strongly disagreed with Dr. Schott's conclusion that Lumford died by strangulation. According to Dr. Diaz, if a person has been strangled to death, the injuries are obvious: "It is something that jumps at the examiner." (Id. at 761). He said that victims will fight for their life when deprived of air, so there should be dramatic findings to support strangulation. In this case, said Dr. Diaz, there are no such findings. Dr. Diaz testified that you would expect to find things like bleeding on the larynx, external and internal injuries to the bones and tissues of the neck, and bleeding of the muscles around the neck. None of these symptoms was found on Lumford. But Dr. Schott testified that it is possible to compress the blood vessels in the neck with hands or arms enough to stop blood flow without causing injury. He also said that the intoxicating effects of fentanyl and heroin could have "shut[ ] down his respiratory drive, making him closer to unconsciousness just from the effects of the drugs." (Id. at 506). The drugs, said Dr. Schott, "could certainly make him more compliant, less able to fight off somebody attempting to strangle him without using more force or a weapon or causing any other injury to the body." (Id. ).

{¶ 37} Medical toxicologist Dr. Glen Burns testified that Lumford had lethal levels of opiates in his system and that the concentration of fentanyl was five times the potentially lethal dose. Dr. Burns also said that fentanyl and heroin are synergetic, meaning the effect of the two together is greater than each alone. He testified that Dr. Schott's reliance on small petechiae to show strangulation is unjustified because petechiae are not diagnostic and may come from many sources, including simply lying face down. But Dr. Burns did not testify that the concentrations of drugs found in Lumford's system are definitively lethal-only potentially lethal. He admitted that it is "possible" that a person could live. (Tr. 880). This is consistent with Dr. Schott's testimony that the concentration found in Lumford is not necessarily lethal.

{¶ 38} The evidence here presents a conflict among expert opinions as to the cause of Lumford's death. "The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness." State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). This principle applies equally when the witnesses are experts. See State v. Harris , 9th Dist. Medina No. 16CA0054-M, 2017-Ohio-8263, 2017 WL 4779555, ¶ 22 ; State v. Fenderson , 5th Dist. Richland No. 09 CA 64, 2010-Ohio-2240, 2010 WL 2010923, ¶ 61. We do not think that the jury here lost its way simply because it chose to believe the state's witnesses and disbelieve the defendant's witnesses. Compare White , 2005-Ohio-212, at ¶ 69 (saying that the jury "did not los[e] its way simply because it chose to believe the State's witnesses and disbelieve Defendant, which it was entitled to do"). We cannot say that the jury "clearly lost its way and created such a miscarriage of justice" as to justify reversal. That strangulation is the cause of death is not only supported by Dr. Schott's testimony but also by the testimony of eyewitnesses and a witness to whom Hare confessed. There is more than enough evidence to support the finding that Hare caused Lumford's death.

{¶ 39} The third assignment of error is overruled.

D. Other-acts evidence

{¶ 40} The fourth assignment of error alleges that the trial court erred by admitting evidence of Hare's "other acts."

{¶ 41} Hare failed to object at the time that this "other acts" evidence was admitted, so he has waived all but plain error. Crim.R. 52(B) states that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "By its very terms, the rule places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule. Second, the error must be plain. To be 'plain' within the meaning of Crim.R. 52(B), an error must be an 'obvious' defect in the trial proceedings. Third, the error must have affected 'substantial rights.' We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." (Citations omitted.) State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 42} " Evid.R. 404(B) * * * precludes the admission of evidence of other crimes, wrongs, or acts offered to prove the character of an accused in order to show that the accused acted in conformity therewith, but it does not preclude admission of that evidence for other purposes." State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, syllabus. These "other purposes" for which other-acts evidence may be admitted include "proof of motive." Evid.R. 404(B). A three-step analysis determines whether to admit other-acts evidence:

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 ¶ 20.

{¶ 43} Hare argues that the following testimony about his other bad acts should not have been admitted: Cromlish's testimony that he smoked crack; Howard's testimony that he smoked crack and had heroin; Howard's testimony that he sold food stamps for cash; Howard's testimony that Hare threatened him; and Cromlish's testimony that she heard him say, "I did it again."

{¶ 44} Cromlish's testimony that Hare smoked crack was admissible. The testimony was in response to the prosecutor's question about what Walton and Hare did in the hours before Hare attacked Lumford. It does not appear that the testimony was elicited to prove character. Also, the evidence serves a legitimate purpose. It helps to prove that Hare's motive for killing Lumford was retaliation for Lumford having sold him bad crack.

{¶ 45} Howard too testified that Hare smoked crack in the hours before he attacked Lumford, and he testified about the heroin. But this testimony was elicited on cross-examination by defense counsel. So if the admitting it was error, the error was invited. Compare State v. Lenoir , 2d Dist. Montgomery No. 22239, 2008-Ohio-1984, 2008 WL 1838352, ¶ 24 (concluding that if it was error to admit testimony that the defendant tried to bribe the witness with drugs so that she would not testify against him in the assault case, it was invited error because the testimony was elicited by defense counsel on cross-examination). "Under the doctrine of 'invited error,' an appellant is barred from attacking a judgment because of an error for which the appellant was responsible." Id. , citing State ex rel. The V Cos. v. Marshall , 81 Ohio St.3d 467, 692 N.E.2d 198 (1998).

{¶ 46} Howard testified that Hare sold $140 worth of food stamps for $70 and used the money to buy crack from Lumford. This evidence was not elicited to prove Hare's character but as evidence to establish Hare's motive for killing Lumford and to prove Lumford would have had money that was missing after what amounted to an aggravated robbery.

{¶ 47} Howard testified that Hare threatened him, saying that Hare told him, "What happened to him [Lumford] can happen to you if you don't keep your mouth shut." (Tr. 384). But "[e]vidence of threats or intimidation of witnesses reflects a consciousness of guilt." State v. Hamm , 1st Dist. Hamilton Nos. C-160230, 2017-Ohio-5595, 2017 WL 2829708, ¶ 20, citing State v. Richey , 64 Ohio St.3d 353, 357, 595 N.E.2d 915 (1992). So this testimony is "admissible as an admission by conduct." Id.

{¶ 48} Lastly, Cromlish testified that when she was later with Hare and some others, she heard Hare tell someone, "I did it again, I did it again." (Tr. 353). This is not a wrongful act under Evid.R. 404(B). Rather, it is an admission by a party-opponent, which is admissible under Evid.R. 801(D)(2)(a). See State v. Perez , 9th Dist. Lorain No. 98CA007235, 2000 WL 296090, *5-6 (Mar. 22, 2000). Hare argues that this admission goes beyond simply admitting to strangling Lumford. He says that "I did it again" implies that he had strangled or murdered someone before, which is highly prejudicial. Hare says that the "again" portion of the admission should not have been allowed, citing this court's decision in State v. Hawn , 138 Ohio App.3d 449, 741 N.E.2d 594 (2d Dist.2000). In Hawn , we concluded that testimony about a domestic-violence incident and about a hair-pulling injury and black eye caused by the defendant were inadmissible under Evid.R. 404(B) because the evidence was "wholly independent of the offense for which [the defendant] was on trial." Hawn at 464, 741 N.E.2d 594. Here, though, Hare's admission is to one of the offenses for which he was on trial.

{¶ 49} Ultimately, we conclude it was not error to admit the challenged testimony and not an obvious defect in the proceedings. Moreover, even if none of the challenged testimony should have been admitted, given all the other evidence presented that Hare strangled Lumford because he was angry with him for selling him bad crack, we do not think that the absence of the challenged testimony would have changed the outcome of the trial. Accordingly we find no plain error in admission of the challenged evidence.

{¶ 50} The fourth assignment of error is overruled.

E. Hare's presence was properly waived.

{¶ 51} The fifth assignment of error alleges that the trial court erred by conducting portions of the trial without Hare's presence. Hare says that he was improperly excluded from a jury view and a conference on the admission of exhibits.

{¶ 52} "An accused has a fundamental right to be present at all critical stages of his criminal trial. Section 10, Article I, Ohio Constitution ; Crim.R. 43(A). An accused's absence, however, does not necessarily result in prejudicial or constitutional error. '[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only .' " (Emphasis sic.) State v. Frazier , 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 139, quoting Snyder v. Massachusetts , 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

{¶ 53} Hare's presence was properly waived. Hare's defense counsel expressly waived Hare's presence at the jury view, telling the court that Hare "wants to waive his appearance at the view." (Tr. 181). Hare was present in the courtroom at the time and did not voice any objection. Defense counsel also expressly waived Hare's presence at the exhibit conference while Hare was in the courtroom, and he did not object. Therefore Hare's presence was properly waived. Compare Frazier at ¶ 144 (concluding that the defendant's presence at an in-chambers conference was properly waived where the defendant was in open court and did not object when defense counsel waived his presence); State v. Hayes , 2d Dist. Montgomery No. 26379, 2016-Ohio-7241, 2016 WL 5888103, ¶ 109 (same). See also United States v. Gagnon , 470 U.S. 522, 528, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (saying that a trial court "need not get an express 'on the record' waiver from the defendant for every trial conference which a defendant may have a right to attend").

{¶ 54} And even if Hare's presence was not properly waived, he fails to show prejudice from his absence at either portion of the trial. "[A] jury view is not a critical stage in the trial proceedings." State v. Stivender , 2d Dist. Montgomery No. 19094, 2002-Ohio-6864, 2002 WL 31780953, ¶ 11, citing State v. Cassano , 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81. "In order to demonstrate reversible error, Defendant must show that he was prejudiced by his absence from the jury view." Id. , citing Cassano . Hare has not shown that he was prejudiced by his absence from the jury view. Moreover it is commonly accepted that transportation of a defendant in custody to a jury view in a secured fashion could have a negative impact on the jury so it is routinely waived as sound trial strategy. As for the exhibit conference, a defendant suffers no prejudice if "his absence occurred during a discussion involving legal or scheduling issues within the professional competence of counsel." Frazier at ¶ 142.

{¶ 55} The fifth assignment of error is overruled.

F. Ineffective assistance of counsel

{¶ 56} The sixth assignment of error alleges that Hare was denied the effective assistance of counsel. Hare argues that defense counsel was ineffective for failing to object to the admission of the others-acts evidence.

{¶ 57} To show that defense counsel was ineffective, Hare must prove that counsel's performance fell below an objective standard of reasonable representation and that the deficiency prejudiced him. State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus, citing Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[A] court must indulge in a strong presumption that the challenged action might be considered sound trial strategy. Thus, judicial scrutiny of counsel's performance must be highly deferential." (Citations omitted.) State v. Bird , 81 Ohio St.3d 582, 585, 692 N.E.2d 1013 (1998).

{¶ 58} The whole of Hare's argument is that "[t]here can be no strategic reason for failing to object to a litany of other felonious acts of defendant." We disagree. As we said, Cromlish's testimony that Hare smoked crack was not elicited to prove Hare's character and was admissible to show Hare's motive for killing Lumford. Also, defense counsel could reasonably have thought that this testimony, accompanied as it was by Cromlish's testimony that she and Walton smoked crack too, hurt Cromlish's and Walton's credibility more than it hurt Hare's defense. Howard's testimony that Hare smoked crack came in response to defense counsel's questioning about whether Lumford sold Hare bad crack on the day that Lumford died. Defense counsel could have been trying to undermine the state's case by suggesting that if Hare was angry with Lumford for selling him bad crack in the past, it does not make sense that Hare would have bought more crack from Lumford. As for Howard's testimony about heroin, the testimony indicates that it was Lumford who had the heroin, which he gave to Cromlish. Howard's testimony about Hare selling food stamps for cash was not elicited to prove Hare's character but to help establish Hare's motive for killing Lumford and to prove aggravated robbery. And Howard's testimony that Hare threatened him was admissible as conduct demonstrating consciousness of guilt. Finally, Cromlish's testimony that she heard Hare tell someone "I did it again" is admissible as an admission by a party-opponent.

{¶ 59} None of defense counsel's challenged conduct constitutes unreasonable representation. And even if it did, the deficiency did not prejudice Hare. Like we have already said, given all the other evidence presented that Hare strangled Lumford because he was angry with Lumford for selling him bad crack, the absence of any or all of the challenged testimony would not have led to acquittal on any of the charges.

{¶ 60} The sixth assignment of error is overruled.

III. Conclusion

{¶ 61} We have overruled each of the assignments of error presented. The trial court's judgment is therefore affirmed.

WELBAUM, P.J. and FROELICH, J., concur.