State v. DasenState v. Dasen
Case Information
*1
[Cite as
State v. Dasen
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No.
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE KEVIN DASEN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015-05-1621 DECISION AND JOURNAL ENTRY Dated: June 28, 2017
SCHAFER, Presiding Judge. Defendant-Appellant, Kevin Dasen, appeals from his convictions and sentence
entered in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
I. E.D. is Dasen’s biological daughter. E.D. was born in 1996 and has Asperger’s
Syndrome, developmental delays, and an IQ of 81. On May 18, 2015, E.D., age 19, informed her mother that Dasen had been sexually assaulting her for many years, with the most recent incident occurring just the day before on May 17, 2015. E.D.’s mother subsequently called the police and took E.D. to the rape crisis center at Akron City Hospital. According to the medical report from her examination, E.D. told her treating physician that Dasen had been sexually assaulting her for six years, since she was 13 years old. On May 20, 2015, Dasen surrendered himself to law enforcement. *2 On June 10, 2015, the Summit County Grand Jury returned a 21-count indictment
charging Dasen with seven counts of rape in violation of
close of the State’s case-in-chief, Dasen made a
determined that Counts I, II, and XXI, Counts III, IV, and XX, Counts V, VI, and IXX, Counts VII, VIII, and XVIII, Counts IX, X, and XVII, Counts XII and XVI, and Counts XIV and XV were allied offenses of similar import, respectively. The State elected to have Dasen sentenced on Counts II, IV, VI, VIII, X, XII, and XIV and the trial court determined that those counts were not allied offenses of similar import. The trial court sentenced Dasen to a definite 10-year prison term on each count and ordered those sentences be served consecutively for a total prison term of 70 years. Dasen filed this timely appeal and raises eight assignments of error for this
Court’s review. To facilitate our analysis, we elect to address Dasen’s assignments out of order. Since assignments of error one and three implicate similar issues, we elect to address them together.
II.
Assignment of Error III
The trial court erred as a matter of law because the State failed to establish on the record that there was sufficient evidence to support a conviction.
Assignment of Error I
Appellant’s conviction was contrary to the manifest weight of the evidence and the jury lost its way when it found the Appellant guilty. *4 In his first and third assignments of error, Dasen argues that his convictions are
both supported by insufficient evidence and against the manifest weight of the evidence. We disagree.
A. Sufficiency of the Evidence
“‘We review a denial of a defendant’s
assessing the sufficiency of the State’s evidence.’”
State v. Smith
, 9th Dist. Summit No. 27389,
1. Sexual Battery –
“Sexual conduct” means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
note that Dasen’s trial counsel conceded in his opening argument that “Mr. Dasen had sex with his daughter, not a secret.” At trial, E.D. testified that Dasen is her father and identified him in court. E.D. testified that Dasen had sexually assaulted her continuously for years, beginning in 2009 when she was 13 years old. E.D. testified that although she could not remember each incident of sexual assault in great detail, she estimated that Dasen has sexually assaulted her 300 times between 2009 and 2015, with Dasen inserting his penis into her vagina in each instance. E.D. then recalled specific incidents of sexual assault in detail. Specifically, E.D. testified that the most recent incident of sexual assault occurred on May 17, 2015. E.D. testified that on that day, Dasen summoned her to his downstairs bedroom, but that she resisted because *6 she knew Dasen was going to assault her, as he has done several times prior. E.D. testified that she was “fighting a bit” with Dasen in an effort to stop Dasen, including hitting him and trying to push him down the stairs. E.D. testified that Dasen took her by the hand and ultimately got her into his bedroom. E.D. stated that once she was in Dasen’s bedroom, Dasen “took my pants off, he rubbed my back, and then he inserted his penis into my vagina.” E.D. recalled that Dasen undressed her while she was standing up and then picked her up and placed her onto his bed, where he proceeded to rub her back for a few minutes before inserting his penis into her vagina. E.D. testified that the assault on May 17, 2015, lasted for approximately a half hour and that Dasen did not use a condom. E.D. stated that because Dasen had been sexually assaulting her for several years, the assault on that particular day neither hurt nor felt good, but just felt awkward. E.D. testified that Dasen ultimately ejaculated inside of her. E.D. then proceeded to testify about the first time that Dasen ever sexually
assaulted her. E.D. testified that Dasen first assaulted her in 2009. E.D. testified that she explicitly remembers that she was 13 years old when she was first sexually assaulted because the assault occurred approximately three years after her grandmother’s death in November, 2006, and about “[a] month, to a month-and-a-half” after her cousin Heather moved from Ohio to Tennessee in 2009. E.D.’s cousin testified at trial that she did indeed move from Ohio to Tennessee in 2009. E.D. recalled that Dasen gave her bourbon to drink. E.D. testified that she drank one or two shots of bourbon, which was her first time ever drinking alcohol. E.D. testified that she “felt awful funny” and went to sleep in her bedroom. E.D. testified that she awoke with Dasen on top of her with his penis inside of her vagina. E.D. testified that her nightgown was “[h]iked up abover [her] waist” and that Dasen’s hands were covering her mouth, which prevented her from speaking. E.D. also testified that she did not resist because she was scared *7 that Dasen would hurt her, as she once “got thrown into a wall” by Dasen when she resisted a spanking. E.D. noted that Dasen had anger problems and that he would often become violent. E.D. further testified that she could not remember how long that first assault lasted since her “mind was pretty fogged from the alcohol.” E.D. testified that a few days after the first assault occurred, Dasen told her that nobody would believe her if she ever reported the incident and even threatened to kill her if she told anybody about it. E.D. subsequently testified that in the springtime of 2010, while she was still
attending school, Dasen took her upstairs to his bedroom where he gave her alcohol. E.D. testified that Dasen proceeded to remove her clothes and rubbed his hands up and down her body for a minute before inserting his penis into her vagina. E.D. testified that Dasen assaulted her on his bed during this encounter. E.D. further testified about similar encounters that occurred in 2011, 2012, 2013,
and 2014. E.D. testified that in 2011, Dasen took her upstairs to his bedroom where they both smoked a blunt. E.D. testified that Dasen then had her lay down on his bed, where he proceeded to pull up her dress and insert his penis into her vagina. E.D. then testified that in 2012, prior to spring break at school, Dasen took her upstairs to her own bedroom. E.D. testified that once inside her bedroom, Dasen removed her clothes and proceeded to have vaginal intercourse with her on a futon. E.D. recalled that in early 2013, before her birthday in February, Dasen entered her bedroom and “kept insisting” to see her breasts or vagina. E.D. testified that Dasen then asked if he could insert his penis into her vagina, which he did upon her acquiescence. E.D. testified that she allowed Dasen to have vaginal intercourse with her on that occasion in early 2013 because she was scared of him becoming violent. E.D. testified that at some point she stopped resisting Dasen’s sexual advances because he would yell at her or would tie her wrists if *8 she did not acquiesce. Lastly, E.D. testified about an encounter in 2014 where after eight or ten hours of Dasen begging to have sex with her, she relented and had vaginal intercourse with Dasen in his downstairs bedroom. E.D. also testified that when she was 13 years old, Dasen would sexually assault
her “maybe once or twice a month,” but that the incidents became more frequent as she got older. E.D. testified that Dasen would sexually assault her maybe once a week when she was 14 years old, approximately twice a week when she was 15 years old, and three or four times a week when she was 16 years old. E.D. testified that each incident involved vaginal intercourse, though occasionally Dasen would have her perform oral sex. E.D. testified that she felt confused whenever Dasen would assault her because she “didn’t know if it was right or wrong.” E.D. also testified that Dasen would become violent if she ever refused to have sex with him. Based upon E.D.’s aforementioned testimony, we determine that the State presented sufficient evidence that Dasen engaged in sexual conduct with E.D., his biological daughter, on seven separate occasions. Specifically, the State put forth evidence which, if believed, demonstrated that Dasen had vaginal intercourse with E.D. approximately 300 times between 2009 and 2015, while occasionally having E.D. perform oral sex on him during this same time period. The evidence adduced at trial further reveals that Dasen had vaginal intercourse with E.D. in 2009, 2010, 2011, 2012, 2013, 2014, and 2015, and that E.D. explicitly recounted seven separate incidents of sexual assault at trial. Thus, based on the foregoing evidence, we conclude that the State met its burden of production with respect to all seven counts of sexual battery.
2. Rape –
Substantial impairment is not defined for purposes of this statute, nor has the Ohio Supreme Court ever defined the term for purposes of addressing the sufficiency of evidence. In a case that raised a different question, however, the Court noted that: “The phrase ‘substantially impaired’ * * * must be given the meaning generally understood in common usage. * * * [It] must be established by demonstrating a present reduction, diminution or decrease in the victim’s ability, either to appraise the nature of his conduct or to control his conduct. This is distinguishable from a general deficit in ability to cope[.]”
State v. Daniels , 9th Dist. Summit No. 25808, 2011–Ohio–6414, ¶ 6, quoting State v. Zeh , 31 Ohio St.3d 99, 103–104 (1987). Expert testimony is not required to establish substantial impairment, and the existence of a substantial impairment may be proven by the victim’s testimony. Daniels at ¶ 6. As we previously concluded, the State presented sufficient evidence
demonstrating that Dasen engaged in sexual conduct with E.D., his biological daughter, on seven different occasions. With respect to whether E.D. had a mental or physical condition that substantially impaired her ability to resist or consent to Dasen’s sexual conduct, E.D. testified that she drank bourbon the first time her father ever assaulted her in 2009. E.D. stated that after taking one or two shots of the bourbon, she felt “awful funny” and went to her bedroom to sleep. E.D. testified that she later awoke to Dasen on top of her, penetrating her vagina with his penis. Lastly, E.D. testified that she does not recall many details of that first assault in 2009 because her “mind was pretty fogged from the alcohol.” *10 E.D.’s cousin, Heather B., also testified at trial. Heather testified that she was an
active participant in E.D.’s life when she was younger. Heather testified that when E.D. was in second or third grade, she had “learning deficits” and had a hard time socializing with peers. Heather stated that Dasen and E.D.’s mother had E.D. tested when she was a child, whereupon they learned that E.D. had autism. Heather testified that E.D. was placed in special education programs that catered to her special needs and that E.D. attended 16 different schools since she was in kindergarten, including a stint of homeschooling. Lastly, Heather testified that E.D. had trouble taking care of her own hygiene as a teenager. Moreover, E.D.’s mother testified at trial. E.D.’s mother testified that E.D. was
born premature at 26-weeks’ gestation. She testified that E.D. had many developmental delays as a child and did not start talking or using full sentences until she was four years old. She further testified that E.D. was diagnosed at a young age with Asperger’s Syndrome, which she noted is a form of autism. E.D.’s mother testified that E.D. often retreats when she is in large crowds. She also testified that she had to keep E.D. on a harness until the age of 13 whenever they were in public because E.D. would often wander. E.D.’s mother also testified that E.D. has an IQ of 81 and that even though E.D. was almost 20 years old at the time of trial, she was still “a 13-year-old mentally.” Lastly, E.D.’s mother testified that Dasen was aware that E.D. is autistic. Additionally, the State presented the expert testimony of Dr. Susan LeSure, a
psychologist who reviewed E.D.’s medical and educational records. Dr. LeSure testified that
E.D. has been diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder,
and expressive and receptive language disorder. Dr. LeSure testified that individuals with these
disabilities are “more vulnerable” because they are often enrolled in special classes at school
*11
where they are “not exposed to the same kind of prevention activities or training around
sexuality.” She further testified that individuals with these disabilities often have less
understanding of what is going on around them, are less able to communicate or express
themselves, may be more isolated due to lack of good social skills, have trouble understanding
relationships, and are less likely to be believed because they have trouble expressing themselves.
Dr. LeSure further testified that E.D.’s school records reveal that she started
receiving special services as early as preschool due to a speech and language disability.
Moreover, she testified that E.D.’s school testing shows that E.D. “is at the tenth percentile
relative to other children her age cognitively and subsequent testing has documented the same
cognitive vulnerability.” According to Dr. LeSure, E.D.’s school testing shows that E.D.’s
ability to sustain attention, concentrate, and exert mental control “was in a borderline delayed
range” and that E.D.’s academic skills “were at three percent relative to her peers” as of 2008.
Based upon all of this information, Dr. LeSure testified that she believes that E.D. “would be
more vulnerable [to sexual assault] than a child who was developing typically.”
Based on the foregoing evidence, we determine that the State presented sufficient
evidence showing that Dasen engaged in sexual conduct with E.D. when E.D.’s ability to resist
was substantially impaired because of a mental condition and Dasen knew that E.D.’s ability to
resist was substantially impaired because of a mental condition. The evidence presented at trial,
if believed, demonstrated that Dasen had vaginal intercourse with his daughter approximately
300 times between 2009 and 2015, including the seven specific times described by E.D. during
her trial testimony. Moreover, the evidence, if believed, shows that Dasen knew that his
daughter was autistic, had cognitive disabilities, and had developmental delays at the time that he
engaged in sexual conduct with E.D. Lastly, with respect to the first time that Dasen sexually
*12
assaulted E.D. in 2009, the evidence demonstrates that E.D.’s mind was “foggy” during the
encounter due to drinking bourbon supplied by Dasen. Thus, based on the foregoing evidence,
we conclude that the State met its burden of production with respect to all seven counts of rape in
violation of
3. Rape –
sustain Dasen’s seven sexual battery convictions. E.D. testified that Dasen, her biological father, sexually abused her approximately 300 times between 2009 and 2015. When testifying about the first time that Dasen ever assaulted her in 2009, E.D. recalled that she awoke to Dasen penetrating her vagina with his penis and covering her mouth with his hands, which prevented her from speaking. E.D. testified that she did not resist this assault because she was scared that *13 Dasen would hurt her, as she once “got thrown into a wall” by Dasen when she resisted a spanking. E.D. testified that days after the first assault occurred, Dasen threatened to kill her if she ever told anybody about what he had done. Dasen also told E.D. that nobody would ever believe her if she reported him. E.D. also testified that Dasen had an anger problem. E.D.’s mother buttressed
E.D.’s testimony on this point. E.D. testified that Dasen attended anger management classes around 2012, which proved to be unsuccessful. E.D. testified that Dasen would often yell and become violent when he was angry. Regarding the early 2013 assault that E.D. recalled in her trial testimony, E.D. stated that she allowed Dasen to have vaginal intercourse with her because she was scared of him becoming violent. E.D. testified that at some point she stopped resisting Dasen’s sexual advances because he would always yell at her or would often tie her wrists together if she did not acquiesce. Moreover, with respect to the last incident of sexual abuse that occurred on May 17, 2015, E.D. testified that Dasen led her by her hand into his bedroom against her will. E.D. testified that she tried hitting Dasen and pushing him down the stairs to prevent him from sexually abusing her, but to no avail. E.D. testified that Dasen removed her clothing, laid her on his bed, and had vaginal intercourse with her for nearly half an hour. Lastly, the State presented evidence during its case-in-chief that Dasen weighs roughly 280 pounds, whereas E.D. weighs between 90 and 100 pounds. Based on the foregoing evidence, we determine that the State presented sufficient
evidence demonstrating that Dasen engaged in sexual conduct with E.D. when he purposely
compelled E.D. to submit by force or threat of force. The evidence at trial demonstrates that
Dasen compelled E.D. to submit to vaginal intercourse by force or threat of force by means of
removing her clothing, covering her mouth, tying her wrists, yelling at her, becoming violent
*14
towards her, and/or threatening to kill her if she ever tells anybody.
See Eskridge
, 88 Ohio St.3d
at 58-59 (noting the forcible element of rape is properly established when “a child is told to do
something by an important figure of authority, and commanded not to tell anyone about it”).
Additionally, E.D. stated that she ultimately stopped rejecting Dasen’s sexual advances out of
fear of Dasen yelling or becoming violent. Lastly, the State presented evidence of the age
difference and disparity in size between Dasen and E.D., as well as E.D.’s confused feelings
while enduring sexual abuse at the hands of her father.
See id
. at 58, citing
State v. Labus
, 102
Ohio St. 26, 38-39 (1921) (noting that “[t]he force and violence necessary in rape is naturally a
relative term, depending upon the age, size and strength of the parties and their relation to each
other” and also that a child’s “filial obligation of obedience” to a parent can be sufficient to
establish force “upon a person of such tender years”). Thus, based on the foregoing evidence,
we conclude that the State met its burden of production with respect to all five counts of rape in
violation of
sufficient evidence at trial.
B. Manifest Weight of the Evidence Turning to his manifest weight argument, Dasen contends that the jury clearly lost its way and created a manifest miscarriage of justice when it convicted him of 12 counts of rape and seven counts of sexual battery. We disagree. A sufficiency challenge is legally distinct from a manifest weight challenge.
Thompkins at 387. When applying the manifest weight standard, we are required to consider the whole record, “weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly *15 lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily against the conviction,” Thompkins at 387. Having reviewed the record, we cannot conclude that the jury lost its way when it
determined that Dasen was guilty of rape and sexual battery. The jury heard testimony from E.D. that Dasen, her biological father, engaged in sexual conduct with her nearly 300 times between 2009 and 2015, including the seven separate timeframes outlined in the indictment. E.D. further testified that she submitted to Dasen’s sexual advances out of fear of being at the receiving end of Dasen’s angry outbursts. E.D. testified that if she ever refused to have sex with Dasen that he would yell at her or tie her wrists together and have sex with her anyway. Moreover, several of the State’s witnesses testified concerning E.D.’s autism diagnosis and developmental delays, from which the jury could have concluded that E.D.’s ability to resist or consent to sexual conduct was substantially impaired. Although Dasen attempted to show through his own testimony and through cross-
examination that E.D. instigated all sexual encounters with him and that she blackmailed him to continue having sex with her, the jury was free to disregard that theory. This is also true of Dasen’s attempt at trial to downplay the significance of E.D.’s autism and other disabilities. “This Court has repeatedly held that the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson , 9th Dist. Summit No. 25161, 2010–Ohio–3296, ¶ 15. We “will not overturn a conviction as being against the manifest weight of the evidence simply because the trier of fact chose to believe the State’s *16 version of events over another version.” State v. Barger , 9th Dist. Medina No. 14CA0074–M, 2016–Ohio–443, ¶ 29. Thus, because Dasen has failed to demonstrate that this is the exceptional case where the jury lost its way by convicting him, we reject his argument that his convictions are against the manifest weight of the evidence. See Otten at 340. Dasen’s first and third assignments of error are overruled.
Assignment of Error II
The trial court erred by denying Defendant’s motion to suppress evidence obtained through a warrantless search of his cell phone in violation of Article I Section 14 of the Ohio Constitution and the Fourth Amendment of the United States Constitution. In his second assignment of error, Dasen contends that the trial court erred by
denying his suppression motion. Specifically, Dasen contends that he did not knowingly and voluntarily consent to have law enforcement search his cell phone. Dasen also argues that law enforcement’s search of his cell phone exceeded the scope of his consent where the Akron Police Department outsourced the search of his cell phone to the Internet Crimes Against Children (ICAC) Task Force in Cleveland, Ohio. We disagree with both arguments. A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside,
through the Fourteenth Amendment, and Section 14, Article I of the Ohio Constitution,
guarantee the right of the people to be free from unreasonable searches and seizures by the
government.
State v. Orr
,
requirement, the State must demonstrate that the consent was “freely and voluntarily given.”
Bumper v. North Carolina
, 391 U.S. 543, 548 (1968);
State v. Posey
, 40 Ohio St.3d 420, 427
(1988);
State v. Beougher
, 9th Dist. Summit No. 21378,
suppression hearing that he had an opportunity to interview Dasen on May 20, 2015. Detective Cozart testified that Dasen voluntarily turned himself in at the police station before an arrest warrant had been signed. Detective Cozart testified that he subsequently gave Miranda warnings to Dasen and interviewed him in a room located within the police department. Detective Cozart testified that during the course of the interview, Dasen admitted
to possessing sexually explicit photographs of E.D. on his cell phone. Detective Cozart testified
that Dasen then voluntarily produced his cell phone and permitted him to search it and use its
contents as evidence. Detective Cozart testified that he never asked Dasen about his cell phone
or asked to look at his cell phone’s contents prior to this point in the interview. Detective Cozart
testified that he then retrieved a “consent to search” form for the cell phone, read the form aloud
to Dasen, and had Dasen sign the form. The form authorized law enforcement to conduct a
complete search of the cell phone’s contents. Detective Cozart testified that he subsequently
gave the cell phone to a police officer who works with ICAC. Detective Cozart testified that
ICAC was the organization that actually searched the contents of Dasen’s cell phone.
*19
Given the evidence presented at the suppression hearing, Dasen cannot prevail on
his argument that he did not knowingly or voluntarily consent to have his cell phone searched.
The evidence clearly demonstrates that prior to signing the “consent to search” form, Dasen
orally authorized Detective Cozart to search his cell phone and use its contents as evidence.
Indeed, the evidence shows that Dasen was the individual who first discussed the contents of his
cell phone and permitted law enforcement to search his cell phone, even before Detective Cozart
ever broached the subject during the interview. Moreover, the fact that Dasen signed a written
waiver is strong proof that the waiver was valid.
See State v. Jackson
, 5th Dist. Richland No.
2012-CA-20,
scope of his consent, we likewise conclude that Dasen’s argument is without merit. The
Supreme Court of Ohio has held that “[t]he standard for measuring the scope of consent under
the Fourth Amendment is objective reasonableness, i.e., what a typical reasonable person would
have understood by the exchange between the officer and the suspect.”
State v. Roberts
, 110
Ohio St.3d 71,
his cell phone and that the search did not exceed the scope of his consent, Dasen’s second assignment of error is overruled.
Assignment of Error V
The trial court erred and abused its discretion when it granted the State’s 404(B) motion over Mr. Dasen’s objection. In his fifth assignment of error, Dasen argues that the trial court erred by granting
the State’s “404(B) other acts motion.” Specifically, Dasen challenges the trial court’s decision permitting the State to introduce certain evidence at trial, including testimony concerning: (1) prior incidents of domestic violence; (2) his behavior when intoxicated and angry; (3) how he disciplined his children; and (4) his installation of a GPS tracking system on his family members’ cell phones. We disagree with Dasen’s argument. We note that Dasen’s fifth assignment of error strictly argues that the trial court
erred by granting the State’s
Assignment of Error VI
The trial court erred when it granted the State’s motion in limine to exclude any evidence that allegedly violated the Rape Shield Law. In his sixth assignment of error, Dasen contends that the trial court erred by
granting the State’s motion in limine to exclude evidence of E.D.’s past sexual conduct on the basis of the rape shield law. We disagree. “A motion in limine ‘is a precautionary request, directed to the inherent discretion
of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside the presence of the jury.’” State v. Echard , 9th Dist. Summit No. 24643, 2009–Ohio–6616, ¶ 3, quoting State v. Grubb , 28 Ohio St.3d 199, 201 (1986). This Court is not required to decide whether a trial court’s order granting or denying a motion in limine is proper if the claimed error is not preserved by objection, proffer, or ruling on the record at the pertinent part during the trial. State v. Bobo , 9th Dist. Summit No. 21581, 2004–Ohio–195, ¶ 5. In order to properly preserve any objection for appellate review, “[a]t trial, it is incumbent upon a defendant, who has been temporarily restricted from introducing evidence by virtue of a motion in limine, to seek the introduction of the evidence by proffer or otherwise in order to enable the court to make a final determination as to its admissibility * * *.” Grubb at paragraph two of the syllabus.
{¶50} In the instant case, the trial court granted the State’s motion in limine to exclude evidence regarding E.D.’s past sexual conduct. As such, Dasen was required at trial to seek the introduction of this evidence by proffer or otherwise to properly preserve this issue for appeal. A thorough review of the record reveals that Dasen failed to do so. Therefore, Dasen has not properly preserved this issue for appeal and we decline to address it. See Bobo at ¶ 6 (“[Appellant] has not properly preserved this error for appeal, and this Court has nothing to review.”).
{¶51} Dasen’s sixth assignment of error is overruled.
Assignment of Error VII
The trial court erred when it permitted [the victim’s] medical records over Mr. Dasen’s objections. In his seventh assignment of error, Dasen argues that the trial court erred by
admitting E.D.’s medical records to the extent that they contained hearsay statements. We disagree. A trial court’s decision regarding the admissibility of evidence will not be
overturned absent a clear abuse of discretion and material prejudice to the defendant.
State v.
Sales
, 9th Dist. Summit No. 25036,
Dasen does not dispute that the medical records at issue were adequately authenticated or that
they are business records, but he asserts that the Court erred nonetheless in admitting the records
*23
without the accompanying testimony of the medical professionals responsible for the diagnoses
contained therein. Dasen has not cited to any legal authority within his brief for the proposition
that a hospital’s properly authenticated business records must be accompanied by expert
testimony. To the contrary, this Court has concluded that properly authenticated medical records
are admissible as business records under
identifying him as her sexual abuser over the course of the past six years should not have been
admitted.
E.D.’s medical report wherein E.D.’s mother, Jillian, informed medical personnel that she and
*24
E.D. would both be living with another family member for the time being to ensure their physical
safety. However, we conclude that this statement, which concerns where and with whom E.D.
would reside in the immediate wake of her reporting her sexual abuse, would assist medical
professionals in treating E.D. Specifically, such information would aid in E.D.’s treatment by
preventing future sexual abuse and by removing E.D. from an emotionally and psychologically
unhealthy living environment. Thus, we determine that the trial court did not abuse its discretion
in admitting E.D.’s medical report in full since the statements contained therein were made for
the purposes of treatment pursuant to
Assignment of Error VIII
The cumulative effect of all the errors enumerated in assignments of error 2, 5, 6, and 7 denied the Appellant the right to a fair trial and due process under the Sixth and Fourteenth Amendments to the United States Constitution,R.C. 2901.04 , and Article I Section 10 of the Ohio Constitution. In his eighth assignment of error, Dasen contends that cumulative impact of the
errors articulated in his second, fifth, sixth, and seventh assignments of error deprived him of a fair trial and due process of law. We disagree. Under the cumulative error doctrine, a judgment may be reversed if the
cumulative effect of multiple errors deprives a party of his constitutional rights even though,
individually, the errors may not rise to the level of prejudicial error or cause for reversal.
See
State v. Garner,
74 Ohio St.3d 49, 64 (1995). However, as indicated by our resolution of the
previous assignments of error, Dasen has not identified a single instance of error. As such,
Dasen’s argument regarding cumulative error is not well-taken.
See State v. Hunter
, 131 Ohio
St.3d 67,
{¶60} Dasen’s eighth assignment of error is overruled.
Assignment of Error IV
The trial court erred and abused its discretion in imposing Appellant’s sentence. In his fourth assignment of error, Dasen argues that the trial court erred by failing
to adequately make the requisite findings pursuant to
A. Requisite Statutory Findings
In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.”
impose a prison sentence within the statutory range[.]”
State v. Foster
,
raises multiple issues. He states that there is no evidence that he committed the offenses, that the trial court did not address the likelihood of recidivism, that the likelihood of recidivism is minimal, and that the trial court did not properly consider mitigating circumstances. We reject each of these contentions. At the sentencing hearing, the trial court recounted how Dasen “took full
advantage” of his daughter’s “developmental delays.” The trial court stated that Dasen is “the
worst type of offender” and that his conduct of blaming his autistic daughter for his own actions
was “the worst of the worst.” The trial court then explicitly addressed
statutory range. Moreover, the trial court’s March 3, 2016, sentencing entry states that it
*27
considered the principles and purposes of sentencing under
B. Merger
Dasen also argues that the offenses upon which he was sentenced should merge as
they are allied offenses of similar import. We apply de novo review when considering a trial
court’s decision regarding merger of convictions for the purposes of sentencing.
State v.
Williams
,
(A) Where the same conduct by the defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
sentenced on seven counts of rape, to wit: Counts II, IV, VI, VIII, X, XII, and XIV. A review of
the indictment, as well as the State’s evidence presented at trial, demonstrates that the seven
counts upon which Dasen was sentenced involved seven completely separate incidents that
occurred during different date ranges. Specifically, Count II occurred between February 11,
2009 and February 10, 2010, Count IV occurred between February 11, 2010 and February 10,
2011, Count VI occurred between February 11, 2011 and February 10, 2012, Count VIII
occurred between February 11, 2012 and February 10, 2013, Count X occurred between
February 11, 2013 and February 10, 2014, Count XII occurred between February 11, 2014 and
February 10, 2015, and Count XIV occurred between February 11, 2015 and May 17, 2015.
Accordingly, we conclude that the trial court did not err by failing to merge Counts II, IV, VI,
VIII, X, XII, and XIV for purposes of sentencing.
See State v. Lett
, 7th Dist. Mahoning No. 15
MA 0128,
III. With all eight of Dasen’s assignments of error having been overruled, the
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run.
Costs taxed to Appellant.
JULIE A. SCHAFER FOR THE COURT CARR, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
JASON D. WALLACE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.