State v. Pence
2013 Ohio 1388
Ohio Ct. App.2013Background
- Defendant Pence was charged with three counts of gross sexual imposition stemming from alleged sexual contact with his ten-year-old stepdaughter, E.S.
- At trial, the State moved for acquittal under Crim.R. 29; Counts Two and Three were acquitted, Count One went to verdict.
- Pence was convicted on Count One after the jury trial.
- Before sentencing Pence moved for a new trial based on prosecutor misconduct regarding elicited testimony about his right against self-incrimination; motion denied.
- The court imposed six months in jail and five years of mandatory community control; Pence timely appeals raising four assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether using pre-arrest silence as substantive evidence violated the Fifth Amendment | Haddix; Leach; pre-arrest silence used to prove guilt | Silence was improperly used to imply guilt and violate Fifth Amendment | No reversible error; plain-error analysis applied; not sufficient to overturn conviction |
| Whether admission of social-worker testimony and related closing argument violated Confrontation/Rule 803(4) | Testimony aided medical diagnosis or treatment under Evid.R. 803(4) | Testimony was testimonial and violated Confrontation Clause | Admissible under 803(4); any error harmless beyond reasonable doubt given corroborating evidence |
| Whether trial court erred by not granting a new trial due to alleged multiple acts within Counts | Multiple acts within Count One prejudiced due process; need cautionary instruction | No prejudice; acts within one count were properly supported and argued | No plain error; prosecutor’s comments within permissible scope; no need for cautionary instruction |
| Whether the evidence was legally sufficient and not against the manifest weight | E.S. testimony established repeated acts of touching by Pence | Inconsistencies undermine credibility and sufficiency | Evidence sufficient and not against weight; conviction supported by E.S.’s testimony |
| Whether any discovery issues or other evidentiary rulings prejudiced Pence | Undisclosed statement by Pence to E.S. could have aided defense | No demonstrated willful violation or prejudice from disclosure gaps | Assignments leading to discovery issues rejected as non-prejudicial |
Key Cases Cited
- State v. Haddix, 2012-Ohio-2687 (12th Dist. 2012) (pre-arrest silence and Fifth Amendment rights discussed)
- State v. Leach, 102 Ohio St.3d 135 (2004-Ohio-2147) (pre-arrest silence as substantive evidence violates Fifth Amendment; distinction from impeachment)
- State v. Lloyd, 2008-Ohio-3383 (12th Dist. 2008) (plain-error review and prejudice standards for evidentiary errors)
- State v. Wayne, 2007-Ohio-3351 (12th Dist. 2007) (plain error review; standard for prejudice and harmless error)
- State v. Arnold, 126 Ohio St.3d 290 (2010-Ohio-2742) (Confrontation Clause and admissibility of child-interview statements; distinction between forensic vs medical-diagnosis purposes)