State v. Neal
2017 Ohio 1493
| Ohio Ct. App. | 2017Background
- Defendant David W. Neal was indicted for one count of gross sexual imposition (R.C. 2907.05(A)(1), felony 4) and one count of sexual imposition (R.C. 2907.06(A)(4), misdemeanor 3) based on allegations by a 14-year-old girl (K.C.) that he rubbed her vagina while they were watching a movie.
- K.C. testified at trial describing progressive touching (feet → legs → under-shorts contact at the vagina), fear while it occurred, and that defendant told her not to tell anyone afterwards.
- Prosecution admitted a forensic interview video of K.C. (conducted by a social worker) and played a controlled phone call in which K.C. told defendant the conduct made her uncomfortable and defendant responded "Yeah."
- A jury convicted Neal on both counts; the trial court merged convictions and sentenced him to 18 months on the gross sexual imposition count.
- Neal appealed, raising sufficiency/manifest-weight challenges, prosecutorial misconduct in closing argument, ineffective assistance of counsel for failure to object, erroneous admission of the forensic-interview video under Evid.R. 803(4), and cumulative error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency / manifest weight of evidence for convictions | State: K.C.'s testimony, the controlled call, and corroboration supported convictions | Neal: evidence insufficient; weight against conviction; no force for GSI; corroboration lacking for SI | Affirmed. Jury credibility finding reasonable; K.C.'s testimony plus call satisfied elements and corroboration requirement |
| Force element for gross sexual imposition | State: force can be psychological/authority over a child; victim's fear and the defendant's command not to tell suffice | Neal: no overt physical force shown | Affirmed. Force may be subtle/psychological for child victims; K.C.'s fear and defendant's authority satisfied force requirement |
| Admissibility of forensic-interview video under Evid.R. 803(4) | State: statements to social worker were for medical/diagnostic purposes and thus admissible | Neal: statements not for medical treatment and were prejudicial hearsay | Affirmed. Interview was for purposes of diagnosis/treatment and properly admitted; confrontation clause not violated because K.C. testified and was cross-examined |
| Prosecutorial misconduct / counsel ineffective for failing to object to closing | Neal: prosecutor misstated evidence as "unrefuted," vouched for victim, invited jury to "make your vote count"; counsel ineffective for not objecting | State: remarks were within latitude for closings, responsive to defense theory, and not plain error; counsel not deficient or prejudicial | Affirmed. Remarks not prejudicial misconduct; no plain error; ineffective-assistance claim fails for lack of deficient performance or prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard requires deficient performance and prejudice)
- State v. Muttart, 116 Ohio St.3d 5 (2007) (child statements to social worker admissible under Evid.R. 803(4) when made for diagnosis/treatment)
- State v. Elmore, 111 Ohio St.3d 515 (2006) (prosecutorial-misconduct reversal requires prejudice to defendant's substantial rights)
- State v. Wagers, 12th Dist. Preble No. CA2009-06-018 (2010) (discussing reliability basis of medical-treatment hearsay exception)