2005 Ohio 2931 | Ohio Ct. App. | 2005
{¶ 2} A person is guilty of sexual battery if that person knowingly coerces another person who is not their spouse into sexual conduct by any means that would prevent resistance by a person of ordinary resolution. Under Ohio's current statutory scheme, the fact that the defendant is the victim's doctor is insufficient to show that the doctor has coerced the victim to such an extent a person of ordinary resolution could not resist the sexual conduct. The only evidence of coercion in this case besides that fact that Bajaj is a doctor is that the examination table was up against the wall. This is insufficient to show that a person of ordinary resolution could not resist his advances. Accordingly, the trial court's decision is affirmed in part, reversed in part, and Bajaj's conviction for sexual battery is vacated.
{¶ 4} On July 27, 2001, Bajaj saw a variety of patients, but his last patient before lunch was Christine Mott and his last patient of the day was Jaime Rodgers. Mott was a registered nurse at the East Liverpool City Hospital. She knew of Bajaj through the hospital and, by July 2001, had been his patient for about a year. Her main complaint was chest pain, but that day it appears she was also suffering from bronchitis.
{¶ 5} In July 2001, Rodgers was studying to become an x-ray technician, although not at the East Liverpool City Hospital. She first saw Bajaj in June 2001 after another doctor told her that he may be able to help her with her foot problem. Rodgers had been diagnosed with plantar faceitis, a painful foot condition. Rodgers' condition was so severe that she visited the emergency room between her first and second appointments with Bajaj. On her first visit, Bajaj performed a complete physical on Rodgers. While conducting that physical, Bajaj noticed some irregularities and ordered Rodgers to get an echocardiogram. The July 27th visit was a follow-up appointment.
{¶ 6} Mott testified that when she arrived for her appointment she was placed in the examination room and that Bajaj acted inappropriately. According to Mott, Bajaj heard her cough and had her lay down on the examination table, lift her shirt, and take off her bra. Mott then alleged that Bajaj began feeling and squeezing her breasts. She further claimed that Bajaj told her that her breasts were beautiful and began licking and kissing her hand. Mott told Bajaj that she was not interested, but he asked her to meet him outside. He then tried to kiss her and asked her for a hug. When she refused he suggested she see another doctor. Bajaj testified that Mott's version of events was an exaggeration and gave a medical explanation for a tamer version of events.
{¶ 7} Rodgers also testified that Bajaj acted inappropriately during her appointment. According to Rodgers, Bajaj spoke with her about her echocardiogram, then ordered her to lay on the examination table and lift her shirt. She lifted her shirt and he squeezed her nipple. He then said, "Beautiful," which Rodgers took to mean that there were no problems. She then testified that Bajaj told her to lower her pants and underwear and she complied. According to Rodgers, Bajaj then began pressing toward her pubic area with his hands and put his finger "inside the folds of her vagina back towards where [her] tampon was." He then removed his hand from her pubic area. She then said that Bajaj tried to kiss her as she sat up. According to Rodgers, Bajaj asked for one kiss or one hug and kissed her on the cheek. Bajaj also testified that Rodgers exaggerated and gave a medical explanation for a tamer version of events.
{¶ 8} The Columbiana County Grand Jury returned an indictment charging Bajaj with one count of sexual battery against Rodgers. It later returned a separate indictment charging Bajaj with one count of gross sexual imposition against Mott.
{¶ 9} The cases were originally scheduled to be tried separately and the sexual battery charge went to trial in June 2002. During the course of trial some jurors improperly looked at a newspaper article and the trial court declared a mistrial. Defense counsel then moved that the case be joined and both proceeded to a jury trial. At the conclusion of that trial, the jury found Bajaj guilty on both counts. Baja was then sentenced to more than the minimum but less than the maximum possible prison term on each count and ordered to pay restitution. The trial court ordered that the two sentences be served consecutively.
{¶ 10} Bajaj has raised seven assignments of error on appeal. Those assignments of error deal with trial errors, sentencing errors, and whether his convictions were supported by insufficient evidence. In order to ease our analysis, we will reformulate the issues Bajaj raised.
{¶ 12} "The evidence presented by the State on the charge of sexual battery was insufficient as a matter of law."
{¶ 13} "The evidence presented by the State on the charge of gross sexual imposition was insufficient as a matter of law."
{¶ 14} "Sufficiency of the evidence" is "'a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.'" State v. Thompkins,
{¶ 16} Bajaj was convicted of gross sexual imposition under R.C.
{¶ 17} Appellate courts have found sufficient evidence of force even if the victim was asleep when the offense was committed. For instance, inState v. Sullivan (Oct. 7, 1993), 8th Dist. No. 63818, the sleeping victim awoke to find the defendant performing oral sex on her. In finding the requisite element of force present, the Eighth District noted that "any" compulsion could establish force as defined in the statute, and observed that the evidence demonstrated that in committing the offense, the defendant had removed the victim's clothing and repositioned her body. Similarly, in State v. Lillard (May 23, 1996), 8th App. No. 69242, that court found the element of force present where the defendant "used physical exertion to position [the victim's] robe and legs." And in Statev. Byrd, 8th Dist. No. 82145, 2003-Ohio-3958, ¶ 24, that same court affirmed a conviction for gross sexual imposition under R.C.
{¶ 18} Other courts have found sufficient evidence on the forcible element of the offense when the defendant used his hands to move the victim's body into certain positions as a precursor to the various sexual acts and spoke sternly and emphatically. State v. Hurst (Mar. 7, 2000), 10th Dist. No. 98AP-1549.
{¶ 19} In this case, there is sufficient evidence in the record to support this element. Mott testified that her left side was against a wall while Bajaj squeezed her breasts and that he was holding her right hand. While Bajaj fondled her breasts, Mott "tried to pull back and he just kept squeezing my hand and he was pushed into me. I could feel his stomach up against my right side" These actions fall within the statutory definition of force since it is "constraint physically exerted by any means upon or against a person," especially given the minimal force exerted by similar defendants whose convictions were affirmed on appeal. Accordingly, Bajaj's third assignment of error is meritless.
{¶ 21} Bajaj was convicted of sexual battery under R.C.
{¶ 22} The Revised Code does not define "coercion", but the commentary to R.C.
{¶ 23} In this case, the State does not argue that Bajaj either used or threatened force in order to engage in sexual conduct with Rodgers because there is no evidence showing force or threat of force. Rodgers laid down on the table herself, pulled up her shirt herself, lowered her pants herself, and lowered her underwear herself. Likewise, Bajaj did not resist Rodgers when she sat up after inserting his fingers into the inside folds of her vagina. Instead, the State argues that Bajaj's inherent authority as a doctor would prevent resistance by a person of ordinary resolution. We cannot accept this argument under current Ohio law.
{¶ 24} The Ohio Supreme Court has held that a defendant has not committed sexual battery if the only evidence of coercion is the relationship between the defendant and the victim unless the statute specifically provides otherwise. In State v. Noggle,
{¶ 25} "Consensual sexual conduct between persons over sixteen years of age, as was apparently the situation in this case, is generally legal in Ohio. The intent of R.C.
{¶ 26} "`(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
{¶ 27} "`(1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.
{¶ 28} "`(2) The offender knows that the other person's ability to appraise the nature of or control his or her own conduct is substantially impaired.
{¶ 29} "`(3) The offender knows that the other person submits because he or she is unaware that the act is being committed.
{¶ 30} "`(4) The offender knows that the other person submits because such person mistakenly identifies the offender as his or her spouse.
{¶ 31} "`(5) The offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis.
{¶ 32} "`(6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over such other person."
{¶ 33} "The General Assembly envisioned a variety of specific situations where an offender might take unconscionable advantage of a victim. The teacher-student relationship is not, however, included as one of those situations. That fact is telling. The statute is very specific, going so far as to forbid sexual conduct between prison workers and prisoners as well as between hospital workers and patients. Had the General Assembly sought to forbid sexual conduct between teachers and students, it would have done so specifically." Id. at 32-33.
{¶ 34} As the Ohio Supreme Court explained, "[w]hat Dale Noggle is accused of doing is wrong in the eyes of his profession and in the eyes of society. What Dale Noggle is accused of doing, however, is not considered a [sexual battery] by the state of Ohio." Id. at 32.
{¶ 35} Since the Ohio Supreme Court decided Noggle, the legislature amended it, making it even more specific than it was when Noggle was decided. In addition to the six categories listed above, the statute now contains five additional categories, R.C.
{¶ 36} "(7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to division (D) of section
{¶ 37} "(8) The other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution.
{¶ 38} "(9) The other person is a minor, and the offender is the other person's athletic or other type of coach, is the other person's instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person.
{¶ 39} "(10) The offender is a mental health professional, the other person is a mental health client or patient of the offender, and the offender induces the other person to submit by falsely representing to the other person that the sexual conduct is necessary for mental health treatment purposes.
{¶ 40} "(11) The other person is confined in a detention facility, and the offender is an employee of that detention facility."
{¶ 41} Thus, the statute now specifically prohibits sexual conduct between "a patient in a hospital or other institution" and someone with "supervisory or disciplinary authority over" that patient (R.C.
{¶ 42} R.C.
{¶ 43} We emphasize that we are bound by both the statute and the Ohio Supreme Court's decision in Noggle when reaching this conclusion. We understand the State's argument; a doctor is in a position of authority and patients are taught to follow their doctors' instructions. But we do not see how the doctor-patient relationship is materially different than the teacher-patient relationship addressed in Noggle. Nor has the State presented us with any argument of any material difference. Furthermore, following Noggle, the legislature could have made the statute less specific, rather than making it even more specific. This would have avoided the type of analysis the Ohio Supreme Court applied in Noggle. By making the statute even more specific, the legislature has demonstrated that it adopted Noggle's analysis and makes us even more sure that we cannot find that a defendant has coerced a victim simply because the victim was the defendant's patient. If the citizens of this State disagree with this conclusion, then the legislature should amend the statute to include this type of relationship.
{¶ 44} Regardless, the fact that the legislature has not criminalized all sexual conduct between a doctor and patient, or between others in positions of authority and those they directly control or supervise, does not mean that fact-finders may not consider the defendant's status when determining whether the coercion employed was sufficient to prevent resistance by a person of ordinary resolution. For instance, in State v.Knight (2000),
{¶ 45} When looking at the facts of this case in the light most favorable to the prosecution, we fail to see how any reasonable fact-finder could conclude that the means of coercion Bajaj used in this case would prevent resistance by a person of ordinary resolution. Rodgers was studying to become an x-ray technician in July 2001, but not at the hospital where Bajaj worked. She did not have an established doctor-patient relationship with Bajaj at the time of the incident since she had only been to see him once before. She first went to him because of foot pain and was returning for this second appointment to get the results of an echocardiogram. After telling Rodgers the result of that test, Bajaj asked her to get back on an examination table located in the corner of the room, with a wall to Rodgers's left and behind her head. Bajaj stood to Rodgers's right while he asked her to lift her shirt and bra and lower her pants and underwear. After she did so, he moved his hand down her abdomen until his fingers reached the inside folds of her vagina. When Rodgers resisted, he removed his hand.
{¶ 46} We fail to see how this situation is so coercive that a person of ordinary resolve would not resist the sexual conduct. Bajaj did not threaten to withhold any kind of medical treatment from Rodgers or her family (such as a referral to a specialist or a prescription) if she did not submit to his advances and Rodgers never testified that she understood that he was making that kind of threat. He did not pressure her into submitting to the sexual conduct by telling her that it was necessary for treatment purposes. And Bajaj did not use force or threat of force to coerce her into submitting to the sexual conduct.
{¶ 47} We acknowledge that the position of the table against the wall may have been more coercive than it would have been had the table been away from the wall since Bajaj could block the only easy exit from the table. But this fact alone is insufficient to demonstrate that Bajaj could then have overcome the resistance of a person of ordinary resolve. Given the Ohio Supreme Court's decision in Noggle, we do not believe the State presented sufficient evidence to charge the jury on the offense of sexual battery against Rodgers.
{¶ 48} It is important to note that our conclusion does not mean that Bajaj's actions against Rodgers did not constitute any criminal offense. For instance, we find it rather likely that the jury would have convicted Bajaj of sexual imposition if given the chance. R.C.
{¶ 49} "No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when * * * (1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard."
{¶ 50} It would not be difficult for the prosecutor to have proven that Bajaj was reckless with regard to whether his conduct was offensive to Rodgers. But the fact remains that the jury did not find him guilty of this offense. Instead, it found him guilty of sexual battery. The evidence does not support this conviction, thus Bajaj's conviction for sexual battery must be vacated. His second assignment of error is meritorious.
{¶ 52} "Appellant was harmed by the introduction of a significant amount of inadmissible, irrelevant and highly prejudicial evidence."
{¶ 53} "Prosecutorial misconduct denied appellant his right to a fair trial under both the Ohio and United States Constitutions."
{¶ 54} "Appellant was denied his right under both the Ohio and United States Constitutions to the effective assistance of counsel."
{¶ 55} Bajaj addresses many of the same basic errors through the different lenses of these assignments of error. For instance, Bajaj challenges the propriety of allowing a rebuttal witness in each of these assigned errors. But each of these arguments also contains distinct issues not addressed in any of the others. For clarity's sake, we will first address the issues common to more than one of these assignments of error. We will then address the errors unique to each assigned error.
{¶ 57} Many of Bajaj's arguments deal with matters which are in the sound discretion of the trial court. When reviewing those matters, we will not reverse the trial court's decision unless it has abused that discretion. See Ramage v. Central Ohio Emergency Serv., Inc.,
{¶ 58} In many cases, Bajaj did not specifically object to the matters he now claims as error on appeal. Those questions not objected to are reviewed under the plain error standard found in Crim.R. 52(B). "`Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" State v. Manley,
{¶ 59} Bajaj also argues that the prosecution's actions constitute prosecutorial misconduct. The test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial. Statev. Fears (1999),
{¶ 60} Finally, Bajaj argues his trial counsel was ineffective in relation to many of these matters. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate counsel's performance was deficient and that deficient performance prejudiced the defense.Strickland v. Washington (1984),
{¶ 62} The State contends that Creeley was not a surprise rebuttal witness and that defense counsel had "as much time as he wanted" to prepare for Creeley's testimony. But the State admits that this is not reflected in the record. The State further argues that Bajaj did not object to Creeley's testimony. Finally, the State contends that Bajaj was not materially prejudiced by Creeley's testimony even if that testimony was improperly admitted.
{¶ 63} Creeley's testimony was damning. Bajaj admitted to many of the facts alleged by both Mott and Rodgers, but testified that his actions were all for medical reasons, that he did not do anything inappropriate, and that Mott and Rodgers were exaggerating their claims. After Bajaj testified, the State called Creeley on rebuttal. He testified that he confronted Bajaj about Mott's allegations before the Rodgers story was in the newspaper. According to Creeely, Bajaj told him, "I'm sorry for that I did. Will you please make it go away?" Thus, Creeley testified that Bajaj admitted some wrongdoing. This directly contradicts Bajaj's testimony, since he claimed he did not do anything wrong.
{¶ 64} Bajaj did not object when Creeley was called to testify as a rebuttal witness, did not voir dire Creeley to establish whether his testimony was truly rebuttal testimony, did not request a continuance to prepare for Creeley's testimony, did not object to any of Creeley's testimony, and did not request that the trial court instruct the jury that it could only consider Creeley's testimony for the purpose of rebutting Bajaj's testimony. Thus, we can only reverse Bajaj's conviction for reasons relating to Creeley's testimony if the prosecutor committed misconduct by not disclosing that Creeley would testify sooner, that the trial court plainly erred by allowing Creeley's testimony, or that Bajaj's counsel was ineffective for not taking one of the actions listed above.
{¶ 65} The prosecutor did not commit misconduct by not disclosing that Creeley would testify sooner. There is nothing in the record to support Bajaj's claim that the State delayed identifying Creeley as a witness. Bajaj testified on the second day of trial. Creeley testified that he first spoke with the prosecutor on the evening of the second day of trial. The prosecutor issued a subpoena to Creeley that night and called Creeley to testify on the third day of trial.
{¶ 66} Furthermore, Bajaj's own actions demonstrate that he was prepared for Creeley's testimony. Bajaj did not object when the State called Creeley in rebuttal and did not request a continuance. In the absence of a motion to continue in this situation, a trial court may properly conclude that defense counsel is prepared to go forward at that time. State v. Finnerty (1989),
{¶ 67} The trial court did not plainly err by allowing Creeley's testimony. Creeley's testimony was obviously rebuttal evidence. It directly contradicted Bajaj's testimony by showing that he had previously admitted that his actions were not proper. Counsel was prepared for Creeley's testimony; he asked pointed, fact-specific questions when cross-examining Creeley. And Bajaj should not have been surprised about the content of that testimony since it concerned a statement that he allegedly made; hence, it should have been within his knowledge. See id. Finally, the decision over whether to allow Creeley's testimony is within the trial court's sound discretion and the trial court may allow a rebuttal witness to testify even if the prosecutor did not disclose the existence of this witness prior to trial. Id. Given these facts of this case, the trial court would not have abused its discretion if it allowed Creeley to testify over objection. Thus the trial court's decision was not error, let alone plain error.
{¶ 68} Finally, counsel was not ineffective for failing to challenge Creeley's testimony or ability to testify. As stated above, the trial court would not have erred by allowing Creeley's testimony even if Bajaj's counsel objected to that testimony. Accordingly there is not a reasonable probability that the outcome would have been different if Bajaj's counsel had tried to challenge Creeley's ability to testify
{¶ 69} Bajaj's arguments relating to Creeley's testimony all are meritless.
{¶ 71} In response, the State argues that the experts' did not give opinions on the truthfulness of the victims' testimony. The State contends that these experts were used to explain the victims' subsequent actions and that this is a proper purpose for expert testimony. Thus, the State denies that it was error to allow this testimony, that it committed prosecutorial conduct by referring to this testimony in closing arguments, and that counsel was ineffective for failing to object to this testimony.
{¶ 72} It is reversible error to admit testimony from a purported expert or lay witness attesting to the believability of another's statements. State v. Boston (1989),
{¶ 73} In this case, each expert testified that each victim suffered from posttraumatic stress disorder and that the victims did not display any evidence of malingering. The Ohio Supreme Court has held that post-traumatic stress disorder is a proper subject of expert testimony and can help a jury determine whether someone has been raped or sexually assaulted. State v. Bidinost,
{¶ 74} Rodgers' counselor testified first and did not mention malingering on direct examination. On cross examination, defense counsel asked her if she was familiar with malingering. The counselor testified that she was and agreed with defense counsel's definition of malingering. Defense counsel never asked the witness if she believed Rodgers was malingering, but this is clearly the impression he intended to leave in the minds of the jury. While discussing malingering, defense counsel also had the counselor testify that she knew that Rodgers had filed a civil action against Bajaj. On redirect examination, the prosecutor asked Rodgers' counselor whether Rodgers had displayed any symptoms of malingering and the counselor replied in the negative. Both then asked additional questions on the subject in recross and a subsequent redirect.
{¶ 75} Mott's psychotherapist testified immediately after Rodgers' counselor. At the end of her direct examination, the prosecutor asked her if Mott displayed any symptoms of malingering. Mott's psychotherapist replied in the negative. Bajaj's counsel did not raise the issue on cross examination and the prosecutor did not conduct a redirect examination of this witness.
{¶ 76} In his closing argument, the prosecutor made the following statement about the counselors:
{¶ 77} "That takes me into, of course, the testimony of the psychiatric, psychological, I should say, professionals who testified here yesterday. First testifying on behalf of the State of Ohio was Pat Taylor, Jamie Rodgers' counselor. Next testifying on behalf of the State was Dr. Ronnie Rittenhaus from Weirton, both very experienced, very professional type counselors. Their testimony mainly concentrated on their diagnosis and treatment of both victims for post traumatic stress syndrome, PTSD.
{¶ 78} "They explained, I feel very well, the concept of PTSD, that it is caused by some sort of triggering, traumatic event. And that triggering, traumatic event in both of these young women's situations, what he did to them in that office on July 27, 2001.
{¶ 79} "Beyond that testimony, however, of their problems with post traumatic stress and the symptoms, the classic symptoms that each victim exhibited, they further testified, and this was brought up, if you recall, by [Bajaj's counsel], that they found no psychological or psychiatric signs of fabrication. I think the term that [Bajaj's counsel] brought up and it's the first time I've heard it yesterday was malingering. Certainly both these professional counselors were familiar with it, but they certainly found no evidence in counseling either of these victims that met the diagnostic criteria of malingering or fabrication, whatever you want to call it, in any way, in any way whatsoever."
{¶ 80} The prosecutor then went on to describe how Mott's counselor testified that Mott's actions were consistent with someone who was in shock.
{¶ 81} The trial court did not err when it allowed the prosecutor to ask these experts whether the victims displayed any signs of malingering. Defense counsel first raised the issue. He may not have asked Rodgers' counselor if she believed that Rodgers was malingering, but his questions clearly implied as much. His line of questioning invited the type of normally inadmissible questions that the prosecutor asked of the counselors. See Pizzillo. Furthermore, the prosecutor could not have challenged defense counsel's line of inquiry in a different, less egregious manner. See contra State v. Kovac,
{¶ 82} In addition, defense counsel was not ineffective for raising the issue of malingering. Part of counsel's trial strategy was to make the jurors believe that Mott and Rodgers had fabricated their stories. In his opening statement, defense counsel said that the victims' claims "do not pass the smell test. They stink. Something is wrong." He then went on to list a variety of "coincidences" which he claimed made the victims' testimony suspect. He concluded as follows:
{¶ 83} "And the ultimate motive in this, I think you will see by the end of this is that you had a very young lady who made up a story. You had someone else who jumped on the bandwagon and both of them have jointly obtained counsel to sue Dr. Bajaj and Dr. Beatty for money. That's the motive for these lies. If you want motive, money is the motive, okay? Are they willing to destroy his life? Yes, they are."
{¶ 84} Defense counsel reiterated these themes in his closing argument. He again commented on the similarity between the victims' description of events and accused them of fabricating their stories for money. He concluded by once again telling the jury "that this case smells."
{¶ 85} Normally, when defense counsel fails to object to testimony prohibited by Boston, then counsel's performance falls below an objective standard of reasonable representation. State v. Huff (2001),
{¶ 87} The State responds that Bajaj has failed to demonstrate how the references to the prior trial prejudiced him and contends that this court should not presume prejudice in that situation. Finally, the State contends that we must presume that the jury followed the trial court's instructions and disregarded the fact that Bajaj was tried previously.
{¶ 88} Courts do not encourage references to prior trials or hearings. See State v. Hatcher (1996),
{¶ 89} In State v. Keenan,
{¶ 90} Even the cases which have not condoned this practice have refused to reverse a conviction because of references to a prior trial. For instance, in Hatcher, the First District found no plain error when defense counsel did not timely object to allow the trial court to instruct the jury or to strike the question, and when defense counsel implicitly, if not explicitly, agreed to continue without action by the trial court. Id. at 631. And in Hopfer, the Second District held that references to a "first trial" did not prejudice the defendant's right to a fair trial. Id. at 540.
{¶ 91} In State v. Davis (Mar. 2, 1994), 3rd Dist. No. 13-93-24, defense counsel told the jury during voir dire that this trial was the second time the case had been tried to a jury and other generalized references to the prior trial were made during trial. The Third District found that counsel was not ineffective for making these references. "Appellant's claim of prejudice resulting from the jury's knowledge that there had been a prior trial is unfounded. The possibility the jury misused this information is speculation by appellant. Furthermore, the trial court gave sufficient curative instructions to correct any potential harm to appellant." Id. at 3.
{¶ 92} It would be much more prejudicial for a party to refer to the outcome of a prior court proceeding, especially if that outcome was adverse to either party. See Jones v. Keller (1966),
{¶ 93} In this case, both attorneys made generalized references to the fact that there was a prior trial and some of the witnesses' testimony could be interpreted as references to a prior trial. But the trial court instructed the jury as follows:
{¶ 94} "Now, during the trial it has been mentioned that a part of this case was called for trial previously. You are instructed that those proceedings could not be concluded due to juror misconduct outside the courtroom that was not the fault of any party or attorney. No verdict was reached in that trial and consequently, that proceeding has nothing whatsoever to do with this trial."
{¶ 95} Any prejudice which Bajaj could have suffered by the generalized reference to a prior trial was mitigated by the trial court's instruction. The trial court instructed the jury that it was not the parties' fault that the prior trial could not be concluded and that it should disregard the fact that Bajaj was previously tried for one of these charges. Ohio juries are presumed to follow the trial court's instruction. State v. LaMar,
{¶ 97} In response, the State contends that neither of these lines of inquiry involved an invocation of Bajaj's right to remain silent. Accordingly, it believes its actions did not violate Bajaj's rights.
{¶ 99} The officer's testimony was not used to impeach Bajaj since it was presented before Bajaj testified. "`Defendant's silence cannot possibly be used to impeach his credibility when he has yet to testify. Mention of defendant's pre-arrest silence at trial is to be used by the state as a "shield" to prevent the defendant from having the considered opportunity to construct a convenient, and unquestioned, exonerating story. Defendant's pre-arrest silence, in conformity with the rights the
{¶ 100} But Creeley's testimony was presented in rebuttal which, by definition, is used to impeach the defense witnesses' credibility. Bajaj testified in this case. Accordingly, the State could use his pre-arrest silence to challenge his credibility. Furthermore, the State did not refer to this aspect of Creeley's testimony during closing arguments. The prosecutor's line of inquiry on this issue did not violate Bajaj's Fifth and/or
{¶ 102} The police officer's testimony about his efforts to contact Bajaj would violate this prohibition if that testimony was about Bajaj's "pre-arrest silence" and if it was used "as substantive evidence of guilt." However, the officer's testimony does not meet either of these tests.
{¶ 103} First, the testimony does not indicate that Bajaj chose to remain silent before talking to the police. Instead, the testimony demonstrates that the police were not able to contact Bajaj. During cross-examination, counsel was inquiring about the officer's investigation of Rodgers' allegations. The two had the following exchange:
{¶ 104} "Q: Okay. You testified that you tried to contact — did you contact any other witnesses or persons that evening?
{¶ 105} "A: Yes. I made two phone calls to Dr. Bajaj's residence and got no answer.
{¶ 106} "* * *
{¶ 107} "Q: [W]as it requested of you to bring certain documents with you to court this afternoon?
{¶ 108} "A: Yes.
{¶ 109} "Q: And what were those certain documents?
{¶ 110} "A: You were requesting phone records.
{¶ 111} "Q: Okay. Phone records with regards to what?
{¶ 112} "A: To July 27, 28, or any time thereafter.
{¶ 113} "Q: In other words, phone records trying to document what you're testifying to as attempts you made to contact Dr. Bajaj, is that correct?
{¶ 114} "A: Yes.
{¶ 115} "Q: Do those phone records exist?
{¶ 116} "A: No they do not.
{¶ 117} "Q: There is no proof that you attempted to contact Dr. Bajaj on July 27 or 28, is there?
{¶ 118} "A: I did.
{¶ 119} "Q: There is no other proof besides your testimony?
{¶ 120} "A: True."
{¶ 121} On redirect examination, the prosecutor asked about the officer's attempts to contact Bajaj.
{¶ 122} "Q: Now, you also testified that you made — that you recall making at least two attempts to contact Dr. Bajaj?
{¶ 123} "A: Yes.
{¶ 124} "Q: Is that right?
{¶ 125} "A: Yes.
{¶ 126} "Q: When was that?
{¶ 127} "A: That was —
{¶ 128} "Q: If you know?
{¶ 129} "A: That was the evening of the incident.
{¶ 130} "Q: Okay. And did you get an answering machine?
{¶ 131} "A: No. Got nothing.
{¶ 132} "Q: Got no answer whatsoever?
{¶ 133} "A: No.
{¶ 134} "Q: Do you know if any other personnel from your office attempted to contact Dr. Bajaj?
{¶ 135} "A: Yes. Officer Brophey. I left a standing order that the house be checked as often as he could on his turn. And I know that he was there upwards of five occasions in the following days.
{¶ 136} "Q: Was he ever able to make contact with Dr. Bajaj?
{¶ 137} "A: No.
{¶ 138} "Q: All right. So Dr. Bajaj never gave you a statement?
{¶ 139} "A: No. No."
{¶ 140} This testimony does not indicate that Bajaj ever remained silent regarding the allegations against him. Rather, it shows that the police never were able to contact him in order to obtain a statement. Thus, this is not evidence of pre-arrest silence.
{¶ 141} Second, the State did not use this testimony as substantive evidence of Bajaj's guilt. Defense counsel first elicited any testimony on this issue and the State did not refer to these issues again. The prosecutor did not mention this issue during his closing arguments as evidence of Bajaj's guilt.
{¶ 142} The State did not use any evidence of Bajaj's pre-arrest silence as substantive evidence of his guilt. Accordingly, the trial court did not commit plain error by allowing this testimony and the prosecutor did not commit misconduct when making this line of inquiry. Bajaj's arguments to the contrary are meritless.
{¶ 144} During cross-examination, the State asked Bajaj, "No one came up to you and said, hey, you've got our support, we don't believe it or anything like that either, did they?" Bajaj responded that people came up to offer him support after the allegations were in the newspaper. The State then asked Bajaj if he had received psychological counseling recently. Bajaj responded that he had. The prosecutor then asked, "Have you been diagnosed with a condition called impulse control disorder?" Bajaj responded that he had not and that his diagnosis was depression. Bajaj's counsel did not object to either line of inquiry.
{¶ 145} Bajaj argues that the State introduced improper character evidence, but he does not really object to the evidence produced at trial since he gave non-prejudicial answers to the questions asked. Rather, his complaint is that the prosecutor should never have asked the questions in the first place. Thus, his arguments are meritless to the extent that they challenge the admissibility of the evidence produced at trial.
{¶ 146} Bajaj specifically contends the prosecutor committed misconduct because he did not have a good-faith basis to ask Bajaj whether he had been diagnosed with impulse control disorder. A cross-examiner may not ask a question if the examiner does not have a good-faith belief that a factual predicate for the question exists. Statev. Gillard (1988),
{¶ 147} The majority of Bajaj's challenge to these questions is a general attack on the impression these questions would leave in the jury's mind. But Bajaj did not challenge these questions at trial and answered them in a manner favorable to himself. Accordingly, Bajaj was not denied a fair trial merely because the prosecutor asked him these questions. Bajaj's arguments to the contrary are meritless.
{¶ 149} After Bajaj filed his brief, we decided McKinnon. In State v.McKinnon, 7th Dist. No. 02 CO 36, 2004-Ohio-3359, we rejected a claim that there was any error when the investigating officer testified that, after twenty-one years in law enforcement, the victim in that case was "[p]robably one of the most traumatized victims I've dealt with." Id. at ¶ 150-154. In doing do, we relied on State v. Taylor (1996),
{¶ 150} Bajaj's argument in this case is exactly that argued inMcKinnon. It is meritless for similar reasons.
{¶ 152} In response, the State contends that defense counsel made a strategic choice to join the cases which this court cannot question. It then argues that it did not commit misconduct. It contends that the State should be allowed to argue that the fact that there are two charges indicates Bajaj's guilt if Bajaj tries to use that fact to demonstrate his innocence.
{¶ 153} The State is clearly correct about counsel's effectiveness. Counsel's trial strategy clearly was to discredit both Rodgers and Mott by implicating that the two conspired to make up their stories for financial gain. The only way to accomplish this strategy would be by joining the two trials. As stated above, we must refrain from secondguessing trial counsel's strategic decisions when reviewing an ineffective assistance of counsel claim. Carter at 558. Thus, we cannot conclude counsel was ineffective for requesting that the trial for the two offenses be joined.
{¶ 154} Bajaj points to a statement the prosecutor made in his closing argument to argue that he committed misconduct. In closing arguments, the prosecutor concluded his argument with the following statements:
{¶ 155} "Ladies and gentleman, this medical field, when a physician enters that field, they take what's called a Hippocratic Oath. I think we've all probably heard of that. And I pulled it up on the Internet and printed out a copy and read it over. And it ends like this, `May I always act so to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.'
{¶ 156} "Christine Mott sought his help. Jamie Rodgers sought his help. What did he give them? Nothing. What did he make them? The objects of his own personal physical or sexual desires. Nothing more. He's an opportunist and nothing more. He saw an opportunity when Christine Mott came in there at the last appointment of that morning on July 27, and he took it and he thought he got away with it because she didn't tell right away. She actually walked out and looked apparently normal.
{¶ 157} "And boy, that made him feel good. Boy, that gave him confidence. That empowered him. And he took a look at his schedule and who was there at the last appointment of the day? A good looking 22 year old girl. He said, hey, I got away with it with Christine, I'm going togo for it. That office is going to be empty. Here comes Jamie Rodgers.Life up your top, Jaime. Lifts up her top. Lift up the bra. She's lettingme do it. I'm getting away with it. Heck, I might as well go farther. Pull your pants down Jaime."
{¶ 158} Bajaj now complains of the italicized portion of the prosecutor's remarks.
{¶ 159} The prosecutor is entitled to a certain degree of latitude in closing argument, and the trial court's has discretion to determine the propriety of a closing argument. State v. Benge,
{¶ 160} Nevertheless, the prosecutor's remarks did not deny Bajaj a fair trial. In this case, there was no dispute either over Bajaj's identity. Instead, the jury was asked to decide whose version of events it believed, the victims' or Bajaj's. The prosecutor argued that the similarity between the incidents demonstrates that Bajaj was guilty of both offenses. But before the prosecutor made this argument, Bajaj argued that the similarities between the offenses demonstrated that he did not commit either of them. Thus, the State was merely responding to Bajaj's argument. Bajaj's arguments to the contrary are meritless.
{¶ 162} It was not error for the trial court to admit this exhibit even though it said that the prosecutor would notify the state medical board. Although no one testified that Rodgers' allegations had been reported to the state medical board, Mott testified that she had filed a complaint with that body. And Creeley's testimony clarified that the state medical board was aware of the allegations. Thus, that portion of State Exhibit 9 was cumulative of other evidence already in the record.
{¶ 163} On the other hand, it was error not to redact the portion of the exhibit stating the potential prison term Bajaj faced for sexual battery. As the Fifth District recently stated, the jury should not normally be told the potential sentences a criminal defendant faces for the charged offenses. State v. Hudson, 5th Dist. No. 02CAA12065, 2003-Ohio-7049, at ¶ 87-89. "[T]he subject of disposition is a matter for the court and not for the jury." State v. Rogers (1985),
{¶ 164} However, counsel did not object to this exhibit and this error does not rise to the level of plain error. Neither counsel directed the jury to pay special attention to this exhibit. Rather, it was introduced to show that September 5th was the day when Rodgers' allegations first became public. Furthermore, it is difficult to see how the potential length of the sentence would have affected whose version of events the jury chose to believe.
{¶ 165} Finally, the trial court did not plainly err when it admitted this exhibit even though it contained the conditions of Bajaj's bail. The conditions of his bail were not excessive; he was required to post a $25,000 personal recognizance bond, to have no contact with the victims, and to surrender his passport. Admitting this evidence would affect the central question in this case, whether to believe the victims' version of events or Bajaj's.
{¶ 166} In conclusion, the trial court did not plainly err when it admitted this exhibit into evidence without an objection. Bajaj's arguments to the contrary are meritless.
{¶ 168} A prosecutor cannot express his or her personal belief or opinion as to the credibility of a witness. State v. Smith (1984),
{¶ 169} In this case, the prosecutor did not express an opinion on whether the nurse who testified was credible. Rather, he made the following remark: "[W]hat did you really expect them to say, ladies and gentlemen? They're loyal employees; that's their livelihood out there." This remark was an attempt to show why the nurse was less credible, which is a proper argument. Bajaj's argument to the contrary is meritless.
{¶ 172} In State v. McNeill,
{¶ 174} "The extent and scope of cross-examination clearly fall within the ambit of trial strategy, and debatable trial tactics do not constitute lack of effective assistance of counsel." State v. Dixon,
{¶ 175} In this case, defense counsel chose to impeach Rodgers' testimony by using her prior inconsistent statements to the nurse at the hospital rather than her statement to police. The hospital nurse testified that Rodgers told her that Bajaj did not penetrate her with his fingers and defense counsel confronted Rodgers with this testimony on cross-examination. Then defense counsel focused on Rodgers' actions after the incident, comparing them to Mott's version of events. This once again focused the jury on defense counsel's central theme, Mott and Rodgers were making up their stories.
{¶ 176} Using Rodgers' statement to the police may have helped show more minor inconsistencies, but these were minor. Defense counsel chose not to focus on these discrepancies and focused on others instead. Counsel performance in this regard was not deficient and Bajaj's argument to the contrary is meritless.
{¶ 178} Bajaj next claims that counsel was ineffective for failing to object to Mr. Mott's testimony about his anger and reaction to hearing about the allegations. But it is difficult to see how this testimony prejudiced Bajaj in any way. Mr. Mott's reaction to the allegations has nothing to do with whether Bajaj committed the offenses.
{¶ 179} Finally, Bajaj contends that counsel was ineffective for not objecting to Mr. Mott's "damaging hearsay testimony" about his conversations with Bajaj's wife and Dr. Beatty's son. Mr. Mott testified that he was told of the incident three days after it occurred. That day, he called Dr. Beatty's house and spoke with his son. Mr. Mott told Dr. Beatty's son what happened. He then testified that Dr. Beatty's son answered, "My father would really want to know who you are and try to work this out." Mr. Mott said he hung up after refusing to tell Dr. Beatty's son his identity. Mr. Mott next called Bajaj's home and spoke with his wife. He testified that he told Mrs. Bajaj what happened. He then said, "[S]he was real apologetic and I told her it wasn't her fault, I just thought she should be aware of it."
{¶ 180} These statements may be hearsay, although it is questionable whether they were introduced for the truth of the matter asserted, but they clearly were not damaging. The fact that Dr. Beatty's son wanted to know the name of Bajaj's accuser does not have anything to do with whether Bajaj committed the offenses in this case. Likewise, the fact that Bajaj's wife apologized for her husband's actions when an obviously angry man called her and accused her husband of improper advances does not raise an inference of Bajaj's guilt. Since Bajaj was not prejudiced by these statements, his counsel was not ineffective for failing to object to them.
{¶ 182} "The cumulative effect of errors deprived appellant of his right to a fair trial under both the Ohio and United States Constitutions, as confidence in the result being a just verdict was necessarily undermined."
{¶ 183} Bajaj argues that even if the errors he has alleged herein are harmless individually, their cumulative effect has resulted in an unfair trial.
{¶ 184} Separately harmless errors may violate a defendant's right to a fair trial when the errors are considered together. State v. Madrigal,
{¶ 185} In this case, there are multiple instances of error. But the errors were all minor and had no real relation to the main issue at trial. Thus, the cumulative effect of these errors did not deny Bajaj his right to a fair trial.
{¶ 187} "The trial court erred in sentencing appellant."
{¶ 188} Bajaj first argues that the trial court did not make the findings necessary to sentence him to more than the minimum sentence. When reviewing any sentence imposed for a felony, this court cannot reverse, vacate, or modify the sentence unless it clearly and convincingly finds either that the record does not support the sentencing court's findings or that the sentence is otherwise contrary to law. R.C.
{¶ 189} The trial court may only impose a sentence beyond the minimum term when it specifically finds on the record that the shortest prison term would either demean the seriousness of the offender's conduct or would not adequately protect the public from future crime by the offender. R.C.
{¶ 190} In this case, the trial court found that a minimum sentence "would demean the seriousness of the criminal conduct that was here involved with regard to these two criminal acts." This finding complies with R.C.
{¶ 191} Bajaj also contends the trial court erred when it ordered that the sentences be served consecutively. However, since we have found that his conviction for sexual battery is not supported by sufficient evidence issues regarding the consecutive nature of his sentences are moot. Bajaj's fourth assignment of error is meritless.
Waite, P.J., concurs.
Vukovich, J., concurs.
