State v. Barker
2016 Ohio 8006
| Ohio Ct. App. | 2016Background
- Scott Barker (step-grandfather) was tried and convicted of one count of sexual battery (R.C. 2907.03(A)(2),(B)) for touching a 10‑11 year‑old girl (N.S.) while she stayed at his apartment during a weekend in January 2014.
- Victim testified to two incidents: early‑morning digital contact after pants/underwear were pulled down, and later fondling under her shirt; she disclosed the abuse to her sister at the hospital, who urged reporting.
- A SANE nurse observed redness on the labia majora and reported the victim blurted during the exam that the swab felt like how Barker touched her.
- BCI found male DNA on the waistband/crotch of the victim’s underwear but the sample was insufficient for identification.
- Barker denied the allegations; the jury convicted on both counts, state elected to merge and proceed to sentencing on one count, and the court imposed an eight‑year mandatory term.
- On appeal Barker raised sufficiency and manifest‑weight challenges, multiple claims of prosecutorial misconduct, and evidentiary errors; the Sixth District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to show "sexual conduct" (penetration/insertion) | State: testimony and SANE outburst plus physical findings supported that digital spreading/touching constituted insertion/spreading of labia and thus sexual conduct. | Barker: No evidence of penetration or insertion; touching alone insufficient. | Court: Evidence sufficient; reasonable juror could find sexual conduct (labial spreading/touching satisfies statutory definition). |
| Manifest weight of the evidence | State: victim’s consistent account, nurse’s observations, and DNA support conviction. | Barker: Testimony conflicted; scant independent corroboration; jury may have erred. | Court: Verdict not against manifest weight; jury credibility determinations upheld. |
| Prosecutorial misconduct (multiple alleged instances: comfort dog exposure; improper voir dire; emotional display; burden‑shifting in closing; attacks on credibility via radio knowledge) | Barker: Prosecutor’s actions and statements prejudiced his right to a fair trial. | State: Several remarks were improper but not prejudicial; curative measures and jury instructions mitigated any harm. | Court: Some prosecutorial remarks were improper (including burden‑shifting and certain testimonial statements), but none rose to prejudice requiring reversal. |
| Evidentiary rulings (bolstering victim’s truthfulness; improper testimonial statements) | Barker: Court erred by admitting mother’s testimony about victim’s truthfulness and permitting prosecutor’s testimonial insinuations. | State: Defense opened the door and errors were harmless in context. | Court: Admission of mother’s testimony on truthfulness was erroneous but harmless; other testimonial/excursive questioning was improper but not prejudicial in the trial context. |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (standard for sufficiency review)
- State v. Thompkins, 78 Ohio St.3d 380 (manifest‑weight standard)
- State v. DeHass, 10 Ohio St.2d 230 (credibility determinations for the trier of fact)
- State v. Lott, 51 Ohio St.3d 160 (two‑part prosecutorial misconduct test)
- State v. Treesh, 90 Ohio St.3d 460 (review of sufficiency and appellate deference)
- State v. Robb, 88 Ohio St.3d 59 (trial court discretion on evidence admissibility)
- State v. Sage, 31 Ohio St.3d 173 (abuse of discretion standard for evidentiary rulings)