State v. Cleavenger
153 N.E.3d 496
Ohio Ct. App.2020Background
- Defendant Deric R. Cleavenger was tried by jury and convicted of one count of rape and three counts of gross sexual imposition (GSI) for abuse of his step‑daughter when she was ages 10–13; sentence: nine years (rape) plus consecutive four‑year terms on each GSI, with five years post‑release control.
- Victim testified to multiple incidents including digital vaginal penetration (rape) and repeated touching of breasts/clitoris and buttocks (GSI); she disclosed to her mother, who held a family meeting during which defendant admitted and apologized.
- After the meeting the abuse paused, then resumed as defendant began entering the victim’s bed and touching her; victim eventually reported to police years later and a reopened investigation led to charges.
- At trial the state played an audio recording of a 2016 conversation between the victim’s mother and the victim (admitted as a co‑conspirator statement) and elicited testimony that the victim passed a 2008 polygraph.
- Defense made motions to exclude the recording and the polygraph evidence; those motions were overruled. The jury convicted; defendant appealed raising four assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of 2016 recorded conversation (Evid.R. 801(D)(2)(e) / hearsay) | Recording shows a conspiracy between defendant and mother to conceal abuse; admissible as co‑conspirator statement. | No conspiracy to commit the charged sexual offenses was proved; any alleged conspiracy to conceal was collateral and cannot make the recording admissible as a co‑conspirator admission. | Reversed: tape inadmissible as co‑conspirator statement; admission was hearsay error. |
| Admission of victim’s polygraph results | Polygraph shows victim passed and thus bolsters credibility; admissible for impeachment of defense witness testimony. | Polygraph results are generally inadmissible unless strict conditions are met; use here was one‑sided and highly prejudicial. | Reversed: admission of polygraph results was improper and prejudicial. |
| Sufficiency of evidence (Crim.R. 29) | State: victim’s testimony and timeline supplied evidence of elements of rape and GSI. | Defendant: convictions rested solely on uncorroborated victim testimony; insufficient to support convictions. | Affirmed on sufficiency: evidence was legally sufficient to support convictions. |
| Manifest weight of the evidence | State: jury credibility findings reasonable given testimony. | Defendant: trial errors and credibility issues require reversal on weight grounds. | Moot/overruled as to manifest weight because reversal was required on evidentiary errors; remand for new trial. |
Key Cases Cited
- State v. Milo, 6 Ohio App.3d 19 (10th Dist. 1982) (elements for co‑conspirator hearsay rule discussion)
- State v. Shelton, 51 Ohio St.2d 68 (Ohio 1977) (post‑offense declarations may be admissible if in furtherance of ongoing conspiracy)
- Shelton v. Ohio, 438 U.S. 909 (U.S. 1978) (Supreme Court action noted in the opinion)
- State v. DeRighter, 145 Ohio St. 552 (Ohio 1945) (conspiracy to avoid apprehension explained)
- Goins v. State, 46 Ohio St. 457 (Ohio 1889) (admission of co‑defendant declarations when prima facie conspiracy shown)
- State v. Nevius, 147 Ohio St. 263 (Ohio 1947) (cited with approval regarding co‑conspirator declarations)
- State v. Rowe, 68 Ohio App.3d 595 (10th Dist. 1990) (polygraph admissibility conditions and factors for prejudice analysis)
- People v. Rocha, 110 Mich.App. 1 (Mich. Ct. App. 1981) (factors for assessing prejudice from polygraph testimony)