State v. Richcreek, 196 Ohio App. 3d 505

Background

Defendant Richcreek was convicted on five counts of first-degree rape arising from assaults on his twin half-sisters, A.M. and A.L., at a Perrysburg Township home.
Counts 2 and 3 involve A.M. (2007) and count 1 involves A.M. (2007); counts 4–5 involve A.L. (2009) and two earlier 2008 incidents.
The state presented hearsay statements from several witnesses about A.M.’s and A.L.’s out-of-court statements; some were admitted for nonhearsay purposes and later used to prove force.
A.M. recanted at trial, denying rape; A.L. did not recant and testified to multiple rapes, with corroborative hospital and police records entered.
The trial court admitted documents and police affidavits related to A.L.’s allegations, and a police officer testified about Richcreek’s credibility after the search.
The appellate court reversed the convictions and remanded for further proceedings, discharging A.M.’s count and vacating A.L.’s four counts, due to improper hearsay and related errors.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether hearsay was properly admitted and used	Richcreek argues improper hearsay and dual-use testimony infected the trial.	Richcreek contends the court allowed inadmissible hearsay for substantive proof and improper closing-use.	Hearsay admitted improperly; not harmless beyond reasonable doubt for A.M. and A.L. counts.
Impeachment of A.M. with prior inconsistent statements	Richcreek asserts Evid.R. 607(A) was violated by impeachment without proper surprise/damage.	State contends impeachment was proper given witness recalcitrance.	Impeachment with prior statements without proper predicate violated Evid.R. 607(A) and was reversible error.
Admissibility of A.L.’s extrajudicial statements and their later use in closing	Richcreek challenges the use of A.L.’s statements as substantive proof or bolstering.	State argues 801(D)(1)(b) prior consistent statements and 803 exemptions apply.	Wrongful use of A.L.’s statements; their admission as substantive proof or bolstering was reversible error.
Admission of A.L.’s police report and the search warrant as evidence	Richcreek alleges plain error in admitting police report and warrant without proper foundation and limiting instructions.	State argues any error was harmless because other evidence exists.	Plain error; admission of report and warrant prejudicial; not harmless beyond reasonable doubt.
Overall sufficiency and trial-counsel issues in light of errors	Richcreek claims ineffective assistance and cumulative error entitlement.	State asserts cumulative error was harmless given other evidence.	Multiple errors, individually reversible; overall verdicts on A.M. count and A.L. counts reversed/remanded; some issues moot.

Key Cases Cited

State v. Clay, 187 Ohio App.3d 633 (2010-Ohio-2720) (establishes nontruthful-use analysis for nonhearsay purposes)
State v. Sorrels, 71 Ohio App.3d 162 (1991-Ohio-) (harmless-error review for improper hearsay under Crim.R. 52(A))
State v. Blanton, 184 Ohio App.3d 611 (2009-Ohio-5334) (limits on dual-use statements and Evid.R. 403(A) balancing)
State v. Humphrey, 2008-Ohio-6302 (2010) (excited-utterance framework under Evid.R. 803)
State v. Kirk, 2010-Ohio-2006 (2010) (prosecutor cannot rely on nonhearsay to prove truth; closing argument misuse)
State v. Williams, 115 Ohio App.3d 24 (1996-Ohio-684) (foundational cautions for hearsay statements used in trial)
State v. Britta, 2010-Ohio-971 (2010) (assertions about motive and timing of prior statements restrict admissibility)
State v. Yarber, 102 Ohio App.3d 185 (1995) (bolstering testimony and denial of its admissibility as substantive evidence)
State v. Duszynski, 6th Dist. No. L-10-1063 (2010-Ohio-6511) (distinguishes harmless-error analysis when recantation occurs)
State v. York, 115 Ohio App.3d 245 (1996-Ohio-) (regarding Evid.R. 801(D)(1)(b) timing and admissibility)