State v. Cuthbert, 2012 Ohio 4472

Appellant Dewitt A. Cuthbert was convicted by jury of three counts of rape and one count of kidnapping arising from acts against M.R. in June 2009.
M.R. lived with Cuthbert; her minor son E. and half-sister J.S. also resided there during the relevant period.
The assaults included fellatio, digital anal penetration, and penile vaginal penetration, all alleged to be nonconsensual by M.R.
The jury merged the kidnapping with the rape counts and merged sentencing for two rape counts; appellant was sentenced to seven years and labeled a Tier III sex offender.
On appeal, Cuthbert challenged sufficiency/weight of the evidence, prosecutorial conduct, due process, sentencing mergers, evidentiary rulings on a tape and statements, and consent-related cross-examination.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency/weight of the evidence	Cuthbert challenges guilt as against weight/sufficiency.	Cuthbert contends evidence fails to prove elements beyond a reasonable doubt and/or weight is improper.	Convictions not against weight or sufficiency; evidence supports guilt.
Prosecutorial misconduct and mistrial demand	Prosecutor's closing remarks tainted trial; mistrial warranted.	Curative actions corrected error; not prejudicial; due process preserved.	Harmless prejudice; no reversible error; trial fair overall.
Constitutional due process and fair trial	Due process rights violated by misconduct and evidentiary rulings.	No substantial prejudice; trial fair in context.	No due process violation; conduct not materially prejudicial.
Merger and sentencing of rape counts	All rape counts should merge for sentencing.	Rapes committed by separate acts; multiple offenses do not merge.	Two rape counts sentenced separately; no error in merger/ordering.
Evidentiary completeness of tape and exculpatory statements	Balance of jail-tape should have been played under Evid.R.106.	Partial tape admitted; full tape would unduly prejudicial.	Partially played tape was permissible; completeness not violated.

State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (distinguishes sufficiency and weight standards)
State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for reviewing sufficiency)
U.S. v. Doyle, 426 U.S. 610 (U.S. 1976) (post-arrest silence; due process considerations)
Darden v. Wainwright, 477 U.S. 168 (U.S. 1986) (prosecutorial misconduct framework)
State v. Johnson, 128 Ohio St.3d 153 (Ohio 2010) ( merger doctrine for allied offenses of similar import)
State v. Davic, 2012-Ohio-952 (Ohio) (intervening acts separate rapes; lack of merger)
State v. Barnes, 68 Ohio St.2d 13 (Ohio 1981) (separate penetrations constitute separate rapes)
State v. Hay, 10th Dist. No. 93AP–868 (Ohio 1994) (merger considerations for multiple rapes (cited for framework))
Beed Aircraft Corp. v. Rainey, 488 U.S. 153 (U.S. 1988) (rule of completeness underpinning Evid.R. 106)