State v. MooreState v. Moore
Eric E. Willison for Appellant
Allison M. Kesler for Appellee
{1} Defendant-Appellant, Cecil Moore (“Moore“), appeals from the November 28, 2023 judgment of the Marion County Court of Common Pleas. Following a jury trial where he was found guilty of fifteen charges consisting of rape, sexual battery, and gross sexual imposition, the trial court merged the rape and sexual battery charges and sentenced him to a total of 62-1/2 years in prison. In his ten assignments of error, Moore challenges the trial court‘s sentence and a variety of its rulings during trial. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Indictment and Relationship Between Moore and the Victim
{2} On August 18, 2021, Moore was indicted on 15 felony counts, the first five for rape in violation of
- Counts 1, 6, and 11 – On or about June 1, 2014 through September 20, 2014.
- Counts 2, 7, and 12 – On or about March 15, 2015 through June 20, 2015.
- Counts 3, 8, and 13 – On or about June 21, 2015 through December 31, 2015.
Counts 4, 9, and 14 – On or about January 1, 2016 through October 11, 2016. - Counts 5, 10, and 15 – On or about October 12, 2016.
The alleged victim of the offenses was T.G., who was born in February 2001, was 13 years old at the start of the first time period in the indictment, and was 15 years old during the last time period.
{3} Around 2004 or 2005, when T.G. was approximately four years old, T.G.‘s mother and Moore started a romantic relationship, which included the birth of a child together and continued through the time periods set forth in the indictment. Starting when she was 10 or 11 years old, T.G. lived in Marion with her mother, her two younger half-sisters, and Moore. According to T.G., she had a “typical father-daughter relationship” with Moore while growing up, she would call him “dad,” and he would be a parent to her—including helping her with school work, taking her to school events, teaching her how to ride a bike, and disciplining her and her half-sisters. (Trial Tr. at 474-475). With her actual father already out of her life, Moore “was the only real father figure” she had, apart from her grandfather. (Id.). T.G. explained that Moore was the general decision maker in the house, and he was very controlling—including not allowing her to have friends come to the house and not allowing her to participate in any extracurricular activities.
{4} T.G. testified that Moore had sex with her “a lot“—up to eight times a week—between June 1, 2014 and October 12, 2016.1 (Trial Tr. at 544, 576). However, the evidence focused on five separate incidents, each of which corresponded with one of the five time periods set forth in the indictment and, thus, the indictment included one count of rape, sexual battery, and GSI for each incident. T.G. testified about all five incidents during trial, as follows.
{5} The first incident involved the first time Moore had sex with T.G. This took place during the summer before she started the eighth grade. After T.G.‘s mother left the house, Moore came into T.G.‘s room and shut the door. He pulled a condom out of his pocket, hovered over her, told her it would be okay, and penetrated her vagina with his penis. T.G. told him to stop, which he eventually did.
{6} The second incident took place on the day T.G. returned from her eighth-grade trip to Washington, D.C. Moore picked her up at school in a van and parked in a driveway. He told T.G. to bend over the back seat of the van, pulled her pants down, and proceeded to have anal sex, during which he penetrated her. T.G. felt terrible pain and told him to stop, but Moore did not.
{8} The fourth incident occurred after T.G. saw that one of Moore‘s old phones had a Google search for the word “porn.” She showed Moore what was on the phone, Moore yelled at her and accused her of doing it, and they got into an argument. After the argument, Moore took T.G. to his bedroom, pulled up pornography on his phone, and stood behind her to see if she was aroused by what was on the phone. Moore held the phone in front of T.G. with one hand while he reached around her with his other hand, placing his hand on her vagina to see if she was aroused while watching the porn on his phone. Although he was touching her vagina with his hand, T.G. could not remember his fingers going inside it. Moore subsequently put the phone away and had vaginal sex with her.
{9} The fifth incident involved the last time Moore had sex with T.G. They had sex in Moore‘s bedroom and then Moore left to go to a casino. T.G.‘s mother arrived home about 30 minutes later and, without advanced notice to T.G. or Moore,
{10} When asked whether Moore would touch her prior having sexual intercourse, T.G. said “yes” and explained: “He would kiss me, and he would touch my breasts, and put his hand in my pants and touch my vagina.” (Trial Tr. at 480). According to T.G., there was never a time when she wanted to have sex with Moore. She testified that Moore had warned her that, if she ever told anybody, then her mother would hate her and disown her; Moore would go to jail for the rest of his life, where he would kill himself; her two half-sisters would hate her for it; and she would be disliked and disowned by her family. At the time, T.G. felt that she was protecting her half-sisters because she knew, if the sexual activity was happening to her, then it was not happening to them.
{11} T.G. did not tell anyone about the abuse until she was an adult and then only after her young stepson tragically died in August 2020. When her stepson died, it changed T.G.‘s outlook on life and she told her mother about the abuse. T.G. explained that she had kept the abuse a secret until that time, and even denied any abuse (including telling one of her half-sisters she had not been raped by Moore and telling a doctor she had not been sexually abused), because part of her felt no one would believe her and the other part of her believed what Moore said about her
C. Verdicts and Sentencing
{12} During the trial, the jury heard testimony from the following witnesses: Dana Jagger of the Marion City Police Department (“Officer Jagger“), who conducted an investigation in this case; T.G.‘s mother; one of T.G.‘s half-sisters; Samuel Walter (“Special Agent Walter“), a former sexual assault detective for the Marion Police Department who interviewed Moore; and T.G. herself. The State called all of these witnesses; Moore did not call any witnesses or present any evidence after the State rested its case.
{13} The jury found Moore guilty of all 15 counts.2 At sentencing, the trial court found that each rape count merged with the sexual battery count from the same time period (e.g., Count 1 merged with Count 6). It then sentenced Moore to a term of 11 years in prison for each of the rape convictions and a term of 18 months in prison for each of the GSI convictions. The trial court found that the sentences should be served consecutively, for an aggregate prison sentence of 62-1/2 years. This appeal followed.
II. ASSIGNMENTS OF ERROR
{14} Moore raises ten assignments of error for our review:
The trial court erred when it convicted Appellant on all 15 counts in the absence of sufficient evidence of force or lack [sic] of force.
Second Assignment of Error
The trial court erred when it convicted Appellant for sexual battery when the Third Amended Bill of Particulars alleged that the basis for the crime was that Appellant was the stepparent of the alleged victim.
Third Assignment of Error
The trial court erred when it violated the Appellant‘s right to confrontation when it improperly restricted the cross examination of witnesses against Appellant.
Fourth Assignment of Error
The trial court erred when it allowed expert testimony regarding grooming and delayed disclosure when no experts were disclosed, qualified, nor any expert reports filed before trial.
Fifth Assignment of Error
The trial court erred when it allowed in evidence of prior bad acts which the State of Ohio did not request permission for prior to trial.
Sixth Assignment of Error
The trial court erred when it did not permit the Appellant to develop evidence on the slipshod nature of the investigation conducted by the State of Ohio.
Seventh Assignment of Error
The trial court erred when it did not merge the claims for gross sexual imposition into the convictions for rape and sexual battery.
Eighth Assignment of Error
The trial court erred when it convicted the Appellant for gross sexual imposition on Counts 10-15 of the Third Amended Bill of Particulars.
The trial court erred when it did not allow cross examination into the alleged victim‘s bias and motivation to misrepresent.
Tenth Assignment of Error
The trial court erred when it did not allow the jury to see the full video of the Appellant‘s interview with Agent Walter.
III. DISCUSSION
{15} We address the assignments of error out of order in a manner that facilitates our analysis.
A. First Assignment of Error
{16} In the first assignment of error, Moore argues the trial court erred when it “convicted [him] on all 15 counts” because “it is clear that the element of force or threat of force that needs to be present in rape, sexual battery, and gross sexual imposition, is not present.” (Appellant‘s Brief at 3, 12). He contends the State failed to present sufficient evidence of force or threat of force for the offenses.
1. Standard of Review
{17} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Dent, 2020-Ohio-6670, ¶ 15. Thus, our review is de novo. Id. A sufficiency challenge disputes whether a party met its burden of production at trial. State v. Messenger, 2022-Ohio-4562, ¶ 26. “In a sufficiency-of-the-evidence inquiry, the question is whether the evidence presented, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find
2. Applicable Law
{18} Counts 1 through 5 charged Moore with rape in violation of
{20} Focusing on force, the rape and GSI charges here all involved whether the offender purposely compelled the other person to submit by force or threat of force. Notably, this court has analyzed the “force or threat of force” element for both crimes similarly, at least where the defendant is in a position of authority over the victim. E.g., State v. Catlett, 2024-Ohio-386, ¶ 10 (3d Dist.) (explaining that this court applies the Supreme Court of Ohio‘s discussion of the force-or-threat-of-force element under the rape statute to the GSI statute); State v. Heft, 2009-Ohio-5908, ¶ 87-90 (3d Dist.) (relying on principles from caselaw involving forcible rape in assessing a conviction for GSI, where the victim was defendant‘s stepdaughter and father figure). Also notable is that the Supreme Court of Ohio‘s caselaw has distinguished between instances when these crimes are committed against children and when they are committed against adults. Compare State v. Eskridge, 38 Ohio St.3d 56 (1988) (victim was defendant‘s four-year-old daughter) with State v. Schaim, 65 Ohio St.3d 51, 54-55, 1992-Ohio-31 (1992) (victim was defendant‘s twenty-year-old adopted daughter; distinguishing Eskridge).
{22} Given that Moore challenges only the sufficiency of the evidence of force or threat of force, we focus solely on whether the State presented sufficient evidence to prove that element. See State v. Burke, 2020-Ohio-4781, ¶ 17 (3d Dist.). As an initial matter, even setting aside the fact Moore was not convicted of the sexual battery counts because they merged with the rape counts, neither force nor threat of force is an element for the charged sexual battery counts, i.e., Counts 6 through 10. See
{23} Next, despite the assignment of error challenging all fifteen counts, Moore concedes in his brief that there was sufficient evidence of force or threat of force for the offenses charged in Counts 1, 2, 11, and 12 (i.e., the first two incidents). Regardless, the evidence presented, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find the element of “force or threat of force” beyond a reasonable doubt for all of the rape and GSI counts. T.G. testified there was never a time when she wanted to have sex with Moore. She further testified that Moore had warned her that, if she ever told anyone about the sexual activity between them, then her mother would hate her and disown her; Moore would go to jail for the rest of his life, where he would kill himself; her two half-
{24} Moore‘s first assignment of error is overruled.
B. Eighth Assignment of Error
{25} In the eighth assignment of error, Moore argues there was insufficient evidence to prove the GSI in Counts 14 and 15. We apply the same standard of review as in the first assignment of error.
{26} First addressing Count 14, Moore says that T.G. testified Moore‘s “purpose in putting his hand on her vagina was to assure himself (because of his racist beliefs) that she was not sexually aroused by pornography” involving Black people. (Appellant‘s Brief at 33). He asserts there was no other testimony regarding his purpose for doing so and, “since there was no evidence that [T.G.] was aroused or that [Moore] sought to arouse her or himself, there is insufficient evidence to support” the GSI conviction. (Id.). Thus, Moore attacks the offense‘s requirement that the sexual contact must be touching of an erogenous zone of another “for the purpose of sexually arousing or gratifying either person.”
{28} Next, regarding Count 15, Moore says “there was simply no evidence of sexual contact with [T.G.] apart from the alleged rape.” (Appellant‘s Brief at 33). However, when asked whether Moore would touch her prior to having sexual intercourse, T.G. said “yes” and explained: “He would kiss me, and he would touch my breasts, and put his hand in my pants and touch my vagina.” (Trial Tr. at 480). According to T.G., there was never a time when she wanted to have sex with Moore. We find that a rational trier of fact, when viewing the evidence presented in a light most favorable to the prosecution, could find beyond a reasonable doubt that Moore made sexual contact with T.G. prior to the rape.
{29} Moore‘s eighth assignment of error is overruled.
{30} In the seventh assignment of error, Moore argues that the trial court erred in not merging the rape and GSI convictions during sentencing (like the trial court had for the rape and sexual battery offenses).
1. Applicable Law
{31} “We review de novo whether certain offenses should be merged as allied offenses under
{32} When a defendant‘s conduct supports multiple offenses, courts apply the allied offenses analysis in
(A) Where the same conduct by 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 the same or 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.
- In determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must evaluate three separate factors—the conduct, the animus, and the import. - Two or more offenses of dissimilar import exist within the meaning of
R.C. 2941.25(B) when the defendant‘s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable. - Under
R.C. 2941.25(B) , a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.
Id. at syllabus.
2. Analysis
{33} Contrary to Moore‘s suggestion, he has not met his burden of establishing that he is entitled to the protection provided by
{34} Our analysis within the eighth assignment of error concerning Count 15 is also applicable here. Namely, T.G.‘s testimony supported that Moore touched
{35} Moore‘s seventh assignment of error is overruled.
D. Third and Sixth Assignments of Error
{36} In the third assignment of error, Moore contends the trial court violated his right to confrontation when it restricted cross-examination of witnesses
{37} Moore‘s sixth assignment of error is closely related to his third assignment of error. He asserts that “the trial court erred when it did not permit [him] to develop evidence on the slipshod nature of the investigation conducted by the State of Ohio.” (Appellant‘s Brief at 3). Moore cites much of the same testimony in support of both assignments of error. In many respects Moore‘s argument is simply a rehashing of one part of his third assignment of error. Thus, we address both assignments of error together.
{38} “The scope of cross-examination lies within the sound discretion of the trial court, viewed in relation to the particular facts of the case.” State v. McAlpin, 2022-Ohio-1567, ¶ 151; see also State v. Robb, 88 Ohio St.3d 59, 71, 2000-Ohio-275 (2000). Additionally, “[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus; State v. Campbell, 2014-Ohio-493, ¶ 41-45 (8th Dist.) (trial court did not abuse its discretion in sustaining prosecutor‘s hearsay objection to testimony concerning contents of police report). Thus, we review the arguments in this assignment of error for an abuse of discretion. A trial court abuses its discretion when its conduct is unreasonable, arbitrary, or unconscionable. State v. Hill, 2022-Ohio-4544, ¶ 9.
2. Applicable Law
{39} “A defendant‘s right to cross-examine the state‘s witnesses is guaranteed by both the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.” McAlpin at ¶ 151. While “[t]he Sixth Amendment‘s Confrontation Clause precludes a trial court from placing ‘improper restrictions’ on defense cross-examination,” it only “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis in original.) Id., quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)
{40} “To establish a Confrontation Clause violation, [the defendant] must show that he was ‘prohibited from engaging in otherwise appropriate cross-examination.‘” Id. at ¶ 152, quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986). An appellate court will not find the trial court erred if “legitimate, legally supportable reasons exist for sustaining” an objection to the portion of cross-examination at issue. Id. at ¶ 153-154 (no violation of Confrontation Clause where State‘s objection during defendant‘s cross-examination could have been sustained for improper form or lack of foundation).
{41} Moore‘s arguments are premised on the trial court sustaining objections to prevent the improper admission of hearsay statements. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement.
{42} Police reports are generally inadmissible hearsay. State v. Leonard, 2004-Ohio-6235, ¶ 111;
The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.
3. Analysis
{43} Turning first to cross-examination that related to her police report, Officer Jagger testified that she conducted an investigation in this case and wrote a
{44} During the next set of questions about the police report‘s contents, Moore‘s counsel asked Officer Jagger to tell the jury what she learned from T.G. about her half-sisters having information for Officer Jagger to investigate. Moore argued that the statements to be elicited were not being offered to prove the truth of the matter asserted; instead they would describe the process of Officer Jagger‘s investigation—in order to support Moore‘s theory that the investigation was sloppy and did not conform to her training because T.G. was the one directing who should be interviewed.
{46} Moreover, even if the trial court erred in sustaining this hearsay objection, such error was harmless beyond a reasonable doubt.
{47} Here, the trial court‘s decision to sustain the hearsay objection did not affect Moore‘s substantial rights. While it did have some relevance, the testimony to be elicited concerned a relatively peripheral issue and, as the State pointed out at trial, Moore‘s counsel conducted an in-depth cross-examination into the process of Officer Jagger‘s investigation and critiqued it. State v. Lester, 2004-Ohio-2909, ¶ 27-28 (12th Dist.) (barring police report did not affect a substantial right of the defendant, where defendant explored what he viewed as an inconsistency between the report and the officer‘s testimony). This included exploring, for example: Officer Jagger‘s training on report writing and interviewing; the importance of being impartial, timely, accurate, and comprehensive in documenting events; when and how she would document the events of her investigation; her role in the investigation, including developing a rapport with victims so they will trust her; her training and experience with false sex abuse allegations; steps taken in the investigation; how she had not conducted the initial interview of T.G. and did not watch that interview but instead relied on the narrative supplied by the interviewer; and whether she followed her procedures and training in this particular case.
{48} Next, Moore‘s counsel then attempted to introduce the entire police report into evidence, citing hearsay exceptions pursuant to
{49} Finally, Moore argues the trial court erred by sustaining a hearsay objection when his counsel posed this question to T.G.‘s mother: did Officer Jagger ever ask you who T.G.‘s pediatrician was from 2014 to 2016? Moore claims that questions cannot be hearsay because they are not statements and not offered to prove facts. Arguably, there is conflicting case law on this point, but we need not delve into it to address the argument here. E.g., In re M.H., 2021-Ohio-1041, ¶ 56 (1st Dist.) (questions “are not assertions, and therefore not statements, because they are incapable of being proven either true or false“); State v. Ecklin, 1995 WL 407309, *6 (11th Dist. June 9, 1995) (“a question can be an assertion and, therefore, hearsay“). Even if the question posed by Moore‘s counsel did not seek to elicit hearsay, any error in sustaining the hearsay objection was harmless beyond a reasonable doubt. Once again, the testimony to be elicited concerned a relatively peripheral issue in the case and Moore‘s counsel explored, at length, the process of Officer Jagger‘s investigation and critiqued it. This included asking Officer Jagger both if she had requested and if she had ever received medical records from T.G.‘s pediatrician (Officer Jagger admitted she had not). Based on our review of the
{50} Moore‘s third and sixth assignments of error are overruled.
E. Ninth Assignment of Error
{51} The ninth assignment of error also addresses an evidentiary issue. In response to defense counsel‘s questioning, T.G. admitted that she became frustrated at the people on Moore‘s side of the family because they weren‘t communicating with her, including a cousin. When Moore‘s counsel asked, “did you at some point send [the cousin] a Facebook message expressing that frustration that no one --,” the prosecutor cut off the rest of the question with a hearsay objection. (Trial Tr. at 575). Defense counsel argued the solicited testimony was not being offered for the truth of the matter asserted in the statement, but was being offered to show bias and motive. The court sustained the objection and defense counsel, rather than reframing the question, abandoned the inquiry and ended his examination of T.G.
{53} Moore‘s ninth assignment of error is overruled.
F. Fourth Assignment of Error
{54} The fourth assignment of error concerns two different issues involving alleged expert testimony by witnesses not disclosed as experts. First, Moore complains that the State “offered evidence that [Moore] treated [T.G.] differently than the two other children in the home, to wit: favoring her with his attentions while not paying attention to the two others.” (Appellant‘s Brief at 20). He cites testimony from T.G.‘s mother and T.G.‘s half-sister, as well as his objection that the State was (allegedly) presenting grooming evidence when no expert had been
{55} Second, Moore points to Special Agent Walter‘s testimony that, based on his experience investigating these types of sex cases, it is not uncommon for victims to delay reporting instances of sexual abuse. Special Agent Walter was not disclosed as an expert witness, and Moore objected that such testimony was expert testimony. The trial court overruled the objection as permissible lay witness testimony, pursuant to
1. Standard of Review
{56} An appellate court reviews a trial court‘s admission or exclusion of evidence for an abuse of discretion. State v. Finnerty, 45 Ohio St.3d 104, 107 (1989). Additionally, an abuse of discretion standard applies to a trial court‘s decision to admit testimony under
{57} Looking at the first issue, we agree with the trial court‘s ruling that the testimony from T.G.‘s mother and half-sister concerned their personal observations. It was not testimony that required them to be qualified as an expert witness and, therefore, was not objectionable on that basis. See
{58} Turning to the second issue, Special Agent Walter testified at length about his extensive qualifications, training, and experience in law enforcement and investigating sexual assault cases. This included his experience as a sexual assault detective for the Marion Police Department and as a special agent for the Naval Criminal Investigative Service handling numerous sexual assault investigations. Without objection, Special Agent Walter testified he was familiar with instances of individuals who delay reporting sexual assault and reasons why victims do not immediately report having been sexually assaulted. Then, when the prosecutor asked if delayed reporting of sexual assault was common in his experience, Moore‘s counsel objected. After the trial court overruled the objection, Special Agent Walter answered “yes” to the question.
{59} The evidence rule governing opinion testimony by lay witnesses provides, “If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”
{60} Having reviewed the transcript, we find that the trial court did not abuse its discretion in admitting Special Agent Walter‘s testimony at issue pursuant to
{61} Accordingly, Moore‘s reliance on
{62} Moore‘s fourth assignment of error is overruled.
{63} In the fifth assignment of error, Moore argues that the trial court erred by allowing evidence of prior bad acts without the State requesting permission to present such evidence prior to trial, as required by
{64} The first set is the favoritism evidence we analyzed in the fourth assignment of error. Specifically, Moore cites testimony from T.G.‘s mother that she noticed all three girls would want to go to the store with Moore but T.G. was the only one allowed to go, T.G. would be the only one allowed to take motorcycle rides with Moore, and T.G. “got a little more spent on her” for Christmas. (Trial Tr. at 326, 331). Moore argues that the trial court was under the mistaken impression that the objected-to testimony must concern an act that was illegal or evil.
{65} The second set is T.G.‘s testimony concerning Moore‘s use of the dildo, use of the anal beads, and touching prior to having intercourse (i.e., kissing T.G., touching her breasts, putting his hand in her pants, and touching her vagina). Moore argues that, in overruling his objection, the trial court erred because the evidence was never disclosed pursuant to the notice requirements in
{66} ”
(2) Permitted Uses; Notice. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The proponent of evidence to be offered under this rule shall:
(a) provide reasonable notice of any such evidence the proponent intends to introduce at trial so that an opposing party may have a fair opportunity to meet it;
(b) articulate in the notice the permitted purpose for which the proponent intends to offer the evidence, and the reasoning that supports the purpose; and
(c) do so in writing in advance of trial, or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
{67} Not all evidence implicates
{68} In considering other-acts evidence, “trial courts should conduct a three-step analysis.” State v. Williams, 2012-Ohio-5695, ¶ 19. “The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Id. at ¶ 20, citing Evid.R. 401. The second step “is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B).” Id. “[C]ourts must scrutinize the proponent‘s logic to determine exactly how the evidence connects to a proper purpose without relying on any intermediate improper-character inferences.” Hartman at ¶ 23.
{69} “The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.” Williams at ¶ 20, citing
{70} Under
2. Analysis
{71} We start by addressing the testimony that, around the time the alleged sexual acts began, witnesses noticed Moore exhibiting favoritism to T.G. over her half-sisters. Even assuming this testimony falls within the scope of other-acts evidence subject to
{72} Moore emphasized T.G.‘s delay in disclosing the conduct, and the jury could find this testimony helped to explain the sequence of events and why T.G. may not have immediately reported the conduct of someone close to her who was showing her favoritism. See State v. Schwarzman, 2014-Ohio-2393, ¶ 31-33 (8th Dist.) (in countering defendant‘s credibility attacks on victim due to delayed disclosure, explaining the jury could have relied on testimony concerning the favoritism defendant showed to victim).
{73} Looking to the three-part test for admission of the other-acts evidence, the testimony was relevant.
{74} Turning to the third step, the evidence‘s probative value for permitted purposes was not substantially outweighed by the danger of unfairly prejudicing Moore or confusing or misleading the jury. The evidence did not have “an undue tendency to lead” the jury to find him guilty of the charged offenses because he exhibited favoritism. Echols, 2024-Ohio-5088, at ¶ 41. Therefore, the testimony passed the three-step analysis for admissibility.
{75} Finally, Moore‘s primary argument is that the State did not provide the notice required by
{76} The second set of evidence (Moore‘s use of sex toys and sexual contact) was not evidence of other crimes, wrongs, or acts. As shown above, it was direct testimonial evidence of some of the charged offenses. First, T.G.‘s testimony concerning Moore‘s use of the dildo on her was evidence of the GSI offense in Count 13. Second, T.G.‘s testimony concerning Moore‘s use of the anal beads on her the next day was evidence of the rape offense in Count 3. Third, T.G.‘s testimony that Moore would kiss her, touch her breasts, put his hand in her pants, and touch her vagina prior to having sexual intercourse with her was evidence of the GSI offenses in Counts 11, 12, and 15. Thus, the testimony went directly to the charged crimes themselves, so it does not fall within the scope of
{77} Moore‘s fifth assignment of error is overruled.
{78} In the tenth assignment of error, Moore contends that the trial court erred in not requiring the State to play the entire video of Moore‘s interview with Special Agent Walter. Instead, the State introduced only four clips from the interview. Moore asserts that, at trial, he “attempted to offer the video as a business record, as a public record, . . . and pursuant to the Rule of Completeness under
1. Standard of Review
{79} Once again, an appellate court reviews a trial court‘s admission or exclusion of evidence for an abuse of discretion. Finnerty, 45 Ohio St.3d at 107. This standard of review applies to a trial court‘s decision on whether to admit other parts of a writing or recorded statement under
2. Applicable Law
{80}
3. Analysis
{81} Moore did not meet his burden of showing that the remaining part of the videotaped police interview was “otherwise admissible.” Initially, we address Moore‘s reliance on the fact that the entire video (with the exception of Moore mentioning he was willing to take a polygraph) was admitted into evidence at the first trial. Moore contends the admission of the full video at his first trial (which was open to the public) allowed him to “offer the video as a business record, as a public record . . . and pursuant to the Rule of Completeness under
{82} More basically, Moore simply has not shown that any other portion of the video was “otherwise admissible,” pursuant to
{83} Concerning his bald assertion that the entire video was a public record, Moore does not support this proposition with any reasoning or cited authority. Looking back to the trial transcript, it appears Moore‘s argument during the trial was that, once the video was admitted into evidence in the first trial, it became public property and a public record. However, the situation does not fit the requirements of the public records exception to hearsay, so we reject this argument and we likewise do not find any other exception applies. See
{84} Moore‘s tenth assignment of error is overruled.
I. Second Assignment of Error
{85} In the second assignment of error, Moore argues the trial court erred when it convicted him for sexual battery despite the Third Amended Bill of Particulars erroneously alleging Moore was T.G.‘s stepparent. However, the trial court at sentencing found that each rape count merged with the sexual battery count from the same time period. Thus, contrary to Moore‘s claim, he actually was not convicted of sexual battery. E.g., State v. Radabaugh, 2024-Ohio-5640, ¶ 22 (3d Dist.), citing
{86} Moore‘s second assignment of error is overruled.
J. Cumulative Error Analysis
{87} Finally, although Moore does not specifically assign such an alleged error, he also presents the argument that the errors committed by the trial court were not harmless. Given that we found the possibility of harmless errors in our analysis above, we consider the cumulative-error doctrine. Pursuant to the doctrine, “[a]lthough violations of the Rules of Evidence during trial, singularly, may not rise to the level of prejudicial error, a conviction will be reversed where the cumulative effect of the errors deprives a defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus. Here, even considering all of the possible harmless errors indicated above, Moore‘s argument concerning errors fails because, when considered cumulatively, they did
IV. CONCLUSION
{88} For the foregoing reasons, Moore‘s assignments of error are overruled. Having found no error prejudicial to the appellant in the particulars assigned and argued, we affirm the judgment of the Marion County Court of Common Pleas.
Judgment Affirmed
WALDICK, P.J. and WILLAMOWSKI, J., concur.
/jlm