State v. Cleary, 2011 Ohio 3725

Defendant Beau Cleary was convicted of attempted rape after a jury trial and sentenced to four years in prison, classified as a Tier III sex offender.
The victim, M.B., had a three-year-old and an eighteen-month-old at home; the assault occurred when Cleary visited with his friend Dustin Cooper.
During the incident, Cooper and the three-year-old were present in the bedroom when Cleary attempted to rape M.B.
DNA testing on stains failed to include Cleary as a contributor; cervical trauma suggested but was not definitively linked to Cleary.
The State indicted Cleary on attempted rape and forcible rape; he was found guilty only of attempted rape and appealed, challenging evidentiary rulings and procedural issues.
The trial court classified Cleary as a convicted sex offender and sentenced him to four years; Cleary challenged multiple rulings on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dustin Cooper could be declared a court’s witness	State contends Cooper’s statements were inconsistent with prior statements.	Cooper’s testimony and prior statements were not sufficiently inconsistent to warrant court witness designation.	Overruled; Correct reasoning and plain error analysis found no abuse.
Admission of detective’s statement about lying to coax truth	State argues the remark impeached Cooper’s credibility for purpose of impeachment.	Statement was improper hearsay and prejudicial; not an admissible basis to attack credibility.	Admissible for limited impeachment purpose; not error.
Mistrial decision by stand-in judge for deadlocked jury	Judge Tucker correctly relied on prior rulings to deny mistrial.	Mistrial should have been granted due to prejudicial error from detective’s statement.	Overruled; no abuse of discretion; harmless beyond a reasonable doubt.
Dynamite (Howard) charge to a deadlocked jury by stand-in judge	Charge was neutral and permissible under Howard.	Stand-in judge lacked trial context to assess need for instruction.	Overruled; no reversible error.
Weight of the evidence supporting conviction	Evidence including victim testimony and corroborating physical findings supports verdict.	Lack of physical evidence and credibility issues show miscarriage of justice.	Not against the manifest weight; conviction affirmed.

State v. Arnold, 189 Ohio App.3d 507 (2010) (court may call witnesses; improper to use as court’s witness to impeach own witness without surprise/damage)
State v. Adams, 62 Ohio St.2d 151 (1980) (authority on calling witnesses by the court; Evid.R. 614)
State v. Sage, (1987) 31 Ohio St.3d 173 (1987) (abuse of discretion standard for evidentiary rulings)
Weiss v. Weissenberger, Weissenberger’s Ohio Evidence Treatise (2010) (treatise cited for hearsay concepts (not included as a case))
State v. Howard, 42 Ohio St.3d 18 (1989) (approved neutral, non-coercive deadlock instruction)
State v. Maupin, (1975) 42 Ohio St.2d 473 (1975) (discussed in context of when to give deadlock instruction)
State v. Franklin, 62 Ohio St.3d 118 (1991) (standard for mistrial decisions; ends of justice)
State v. DeHass, 10 Ohio St.2d 230 (1967) (witness credibility and weight of testimony)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (weight-and-sufficiency-esque standard for reviewing manifest weight)
State v. Glover, 35 Ohio St.3d 18 (1988) (mistrial/abuse of discretion considerations)