State v. Depinet, 2013 Ohio 1850

Depinet was charged by four-count indictment with offenses involving a child under thirteen, including attempted rape, gross sexual imposition, and importuning.
D.K., a twelve-year-old boy, testified about Depinet’s conversations and physical acts with him during 2011 when Depinet was nineteen.
Depinet, a college student, had a close relationship with D.K. and sometimes mentored him at Depinet’s concession stand; a number of character witnesses testified favorably about Depinet.
Depinet testified he never solicited a minor and claimed any touching occurred only because D.K. initiated it; he denied the charges and admitted a brief touch in Wal-Mart, alleging it was instigated by D.K.
The State presented rebuttal witnesses (James and Tyler) who testified to Depinet’s asking to see and touching their penises, countering the defense that Depinet was not the type to commit such acts.
Depinet moved for a new trial, asserting prejudicial rebuttal testimony and juror misconduct; the trial court denied the motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of rebuttal witnesses	Depinet contends the rebuttal witnesses’ testimony was improper under Evid. R. 404(B) and 608(B) and false.	Depinet argues the testimonies were prejudicial and not properly admissible to rebut his defense.	Rebuttal testimony admissible to rebut defenses; no abuse of discretion.
Denial of motion for new trial	Depinet claims juror misconduct and prejudicial rebuttal testimony warranted a new trial.	Depinet asserts the trial court misapplied Crim.R. 33; juror conduct was prejudicial.	No abuse of discretion; no prejudice shown.
Ineffective assistance of counsel	Depinet argues counsel’s word choices and strategy denied him effective representation.	Depinet contends counsel’s strategy and questions were deficient and prejudicial.	No ineffective assistance; strategy and conduct within wide professional discretion.

State v. Banks, 71 Ohio App.3d 214 (3d Dist.1991) (rebuttal allowed when defendant opens door to absence of prior acts)
State v. Strobel, 51 Ohio App.3d 31 (3d Dist.1988) (cross-review potential of rebuttal evidence noted)
State v. Barnes, 94 Ohio St.3d 21 (2002-Ohio-68) (abuse of discretion standard for evidentiary rulings)
State v. Issa, 93 Ohio St.3d 49 (2001-Ohio-1290) (evidence admissibility and opening the door doctrine)
State v. McCullough, 2008-Ohio-3055 (3d Dist.2008) (appellate review of evidentiary rulings and prejudice)