State v. Lovingshimer, 2021 Ohio 3339

Background

Defendant-Appellant Charles E. Lovingshimer IV was indicted for multiple sex offenses arising from abuse between 2006 and 2013 of two children (V.1 and V.2); charges included rape (including victims under age 10), gross sexual imposition, and child endangering.
Trial began October 20, 2020; the jury convicted Lovingshimer on multiple counts, and on November 30, 2020 the trial court imposed an aggregate sentence of two consecutive life terms without parole.
Pretrial, Lovingshimer filed a motion in limine asking the State be required to refer to V.1 and V.2 as “alleged victims”; the court denied that motion.
During voir dire the prosecutor questioned potential jurors about delayed reporting and willingness to hear expert explanation for lack of physical evidence; defense objected and the court overruled with caution to the prosecutor.
At trial the mother of the victims (J.M.) testified about statements made to her by V.1 and V.2; defense objected as hearsay, but the court admitted the testimony as explaining the mother’s actions; other testimony from the victims was also presented.
Lovingshimer appealed, raising (1) cumulative error from multiple trial rulings (including voir dire and hearsay rulings) and (2) error in denying the motion in limine regarding use of the term “victim.”

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether cumulative trial errors deprived defendant of due process	State: alleged errors were individually harmless and did not cumulatively deprive defendant of a fair trial	Lovingshimer: multiple rulings (voir dire, hearsay, others) cumulatively denied a fair trial	Court: No cumulative error; did not find multiple prejudicial errors; assignment overruled
Whether prosecutor erred in presenting factual elements (delayed reporting) during voir dire	State/Prosecutor: limited factual overview in voir dire is proper to detect bias; questioning narrowly tailored	Lovingshimer: prosecutor injected case facts and conditioned jurors on evidence	Held: Voir dire scope is discretionary; court did not abuse discretion in overruling objection (questioning was narrowly tailored)
Whether admission of J.M.'s testimony recounting victims’ statements was hearsay error	State: J.M.’s statements were not admitted for truth but to explain her subsequent actions (contacting police and arranging exams)	Lovingshimer: testimony was hearsay and should have been excluded	Held: Admission proper as non-hearsay (explains witness conduct); alternatively cumulative/harmless because victims testified similarly
Whether trial court erred in denying motion in limine to force the State to use term "alleged victim"	State: referring to the children as victims in context of evidence/argument is proper; closing argument may characterize evidence and inferences	Lovingshimer: use of the word "victim" is prejudicial and should be barred	Held: Argument not preserved (no contemporaneous objections to occurrences cited); even if preserved, isolated uses (including in closing) were not prejudicial; motion denial upheld

Key Cases Cited

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard)
State v. Jackson, 107 Ohio St.3d 53 (2005) (scope of voir dire reviewed for abuse of discretion)
State v. Bedford, 39 Ohio St.3d 122 (1988) (voir dire scope varies with circumstances)
State v. Tyler, 50 Ohio St.3d 24 (1990) (prosecutor may give an overview of facts in voir dire to detect bias)
State v. LaMar, 95 Ohio St.3d 181 (2002) (out-of-court statements not offered for their truth may be admissible to explain actions)
State v. Maurer, 15 Ohio St.3d 239 (1984) (extrajudicial statements admissible to explain a witness's actions)
State v. Powell, 132 Ohio St.3d 233 (2012) (framework for cumulative-error review)
State v. Grubb, 28 Ohio St.3d 199 (1986) (motion in limine does not preserve an evidentiary issue for appeal without objection at trial)
State v. Lott, 51 Ohio St.3d 160 (1990) (prosecutor may comment on evidence and reasonable inferences in closing argument)