2017 OHIO 5724 - State v. Wilson

[Cite as State v. Wilson,

2017-Ohio-5724

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
F. LEON WILSON : Case No. 16-CAA-08-0035
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 15CR-I-07-0319

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 3, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DOUGLAS N. DUMOLT NICHOLAS CURRAN
140 North Sandusky Street 1901 Butterfield Road
Third Floor Suite 650
Delaware, OH 43015 Downers Grove, IL 60515

BRIAN G. JONES
2211 U.S. Highway 23 North
Delaware, OH 43015
Delaware County, Case No. 16-CAA-08-0035 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, F. Leon Wilson, appeals the August 2, 2016

judgment of conviction and sentence of the Court of Common Pleas of Delaware

County, Ohio. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On July 17, 2015, the Delaware County Grand Jury indicted appellant on

three counts of gross sexual imposition in violation of R.C. 2907.05. Counts 1 and 2

pertained to E.C., four years old, and Count 3 pertained to K.P., seven years old. Each

count included a school safety zone specification (R.C. 2941.143). The charges arose

from separate incidents between appellant and E.C. and appellant and K.P. while at

school. Appellant was their chess teacher.

{¶ 3} On April 9, 2015, E.C. told her parents her chess teacher touched her,

demonstrating the touch by placing her hand on top of her clothes between her legs and

moving her hand up and down. E.C. told her forensic interviewer the same story.

{¶ 4} Following appellant's arrest which was publicized in the press, K.P.'s

father asked K.P. if anything had happened to her since she had been a student in

appellant's chess class in February and March 2015. K.P. stated it happened once.

K.P. told her forensic interviewer that appellant asked her for permission to touch her

vagina and when she gave him permission, he rubbed her vagina over her clothing.

{¶ 5} On August 31, 2015, appellant filed a motion to sever Counts 1 and 2 from

Count 3. A hearing was held on September 21, 2015. By judgment entry filed

September 24, 2015, the trial court denied the motion.
Delaware County, Case No. 16-CAA-08-0035 3

{¶ 6} On December 5, 2015, appellant filed a motion for competency hearings

of E.C. and K.P. prior to either being permitted to testify. A hearing was held on

January 4, 2016. The state indicated it would not be calling E.C. as a witness. The trial

court conducted an examination of K.P. and determined K.P. to be competent to testify.

{¶ 7} On January 4, 2016, appellant filed a motion to compel confrontation,

objecting to the playing of E.C.'s videotaped forensic interview during the trial. A

hearing was held on February 11, 2016.

{¶ 8} On January 21, 2016, appellant filed a supplemental motion on the

issuance of severance. By judgment entry filed February 22, 2016, the trial court again

denied the motion to sever, and denied appellant's motion to compel confrontation,

finding E.C.'s out-of-court statements were admissible as pertaining to medical

diagnosis or treatment.

{¶ 9} A jury trial commenced on February 23, 2016, but the jury could not reach

a verdict on any of the counts and a mistrial was declared. Thereafter, a different judge

was assigned to the case.

{¶ 10} On May 27, 2016, appellant reasserted his motion to exclude E.C.'s

videotaped interview, claiming it violated his right to confrontation and it did not fit the

medical diagnosis or treatment exception to the hearsay rule. Again, the trial court

denied the motion.

{¶ 11} A second jury trial commenced on June 6, 2016. The jury found appellant

guilty of Counts 1 and 3, and not guilty of Count 2. The jury also found the offenses

were committed in a school safety zone.
Delaware County, Case No. 16-CAA-08-0035 4

{¶ 12} On June 24, 2016, appellant filed a motion for judgment of acquittal and

motion for new trial. By judgment entry filed July 21, 2016, the trial court denied the

motions.

{¶ 13} By judgment entry filed August 2, 2016, the trial court sentenced appellant

to an aggregate term of eight and one-half years in prison.

{¶ 14} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

{¶ 15} "THE STATE'S FAILURE TO DISCLOSE THAT E.C. COULD NOT

REMEMBER THE ALLEGED ABUSE OR MR. WILSON VIOLATED MR. WILSON'S

RIGHT TO DUE PROCESS OF LAW AS SECURED BY THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

{¶ 16} "IN THE ALTERNATIVE, MR. WILSON WAS DENIED HIS RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

10 OF THE OHIO CONSTITUTION WHERE HIS TRIAL ATTORNEYS FAILED TO

PRESENT EVIDENCE THAT E.C. COULD NOT REMEMBER THE ALLEGED ABUSE

AND/OR MR. WILSON."

III

{¶ 17} "THE TRIAL COURT VIOLATED MR. WILSON'S RIGHT TO BE

CONFRONTED WITH THE WITNESSES AGAINST HIM AS SECURED BY THE
Delaware County, Case No. 16-CAA-08-0035 5

SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 10 OF THE OHIO CONSTITUTION WHERE IT ADMITTED E.C.'S

VIDEOTAPED INTERVIEW AND E.C. WAS UNAVAILABLE FOR CROSS

EXAMINATION."

{¶ 18} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHERE IT

ADMITTED E.C.'S AND K.P'S OUT-OF-COURT VIDEOTAPED INTERVIEWS

PURSUANT TO EVID.R. 803(4), THEREBY DENYING MR. WILSON'S RIGHT TO A

FAIR TRIAL."

{¶ 19} "THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION

WHERE IT DENIED MR. WILSON'S MOTION TO SEVER AND THEREBY ALLOWED

THE STATE TO USE THE SEPARATE CHARGED ACTS AS PROPENSITY

EVIDENCE TO IMPROPERLY SUPPORT EACH OTHER."

I, II

{¶ 20} In assignments of error one and two, appellant claims he was denied due

process because the state failed to disclose that E.C. could not remember him or the

incident. In the alternative, appellant claims he was denied the effective assistance of

counsel because his trial attorneys failed to present evidence that E.C. could not

remember him or the incident. We disagree.

{¶ 21} Appellee did not call E.C. to testify at trial. Appellant argues following the

trial, he learned appellee failed to disclose that E.C. could not remember him or the

incident. This was discovered via appellee's September 15, 2016 memorandum contra
Delaware County, Case No. 16-CAA-08-0035 6

defendant's motion to stay execution of sentence wherein appellee acknowledged,

"[w]hile E.C. now has virtually no memory of Appellant, her parents have been

devastated by this offense." Subsequently, appellant's trial counsel, Eric Willison, filed

an affidavit averring during a jury instruction meeting with the trial court, appellee

informed "defense counsel for the first time, that E.C. was not called because she could

not remember the alleged events, and that because of this the prosecution decided not

to call her." Willison aff. at ¶ 20, attached to Appellant's December 2, 2016 Motion to

Reconsider Denial of Motion to Stay Execution of Sentence as Exhibit A.1 During the

sentencing hearing, appellee stated, "it's true that and fortunate that [E.] is so young she

doesn't remember the details of what happened at this point." July 29, 2016 T. at 20.

{¶ 22} In his appellate brief at 7, appellant acknowledges because his trial

attorneys did not object to the nondisclosure on the record, this issue is reviewed under

a plain error standard. Crim.R. 52(B). In order to prevail under a plain error analysis,

appellant bears the burden of demonstrating that the outcome of the trial clearly would

have been different but for the error. State v. Long,

53 Ohio St.2d 91

372 N.E.2d 804


(1978). Notice of plain error "is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice."

Id.

 at paragraph

three of the syllabus.

       {¶ 23} In State v. Johnston,

39 Ohio St.3d 48

529 N.E.2d 898

 (1988),

paragraphs four and five of the syllabus, following Brady v. Maryland,

373 U.S. 83

83 S.Ct. 1194

10 L.Ed.2d 215

 (1963), the Supreme Court of Ohio held the following:



1Appellant acknowledges the affidavit is dehors the record and cannot be considered in
this appeal, but has raised the issue to avoid any future assertion of res judicata.
Appellant's Brief at fn. 3.
Delaware County, Case No. 16-CAA-08-0035                                                7




             The suppression by the prosecution of evidence favorable to an

      accused violates due process where the evidence is material either to guilt

      or to punishment, irrespective of the good faith or bad faith of the

      prosecution. (Brady v. Maryland [1963],

373 U.S. 83

83 S.Ct. 1194

10 L.Ed.2d 215

, followed.)

             In determining whether the prosecution improperly suppressed

      evidence favorable to an accused, such evidence shall be deemed

      material only if there is a reasonable probability that, had the evidence

      been disclosed to the defense, the result of the proceeding would have

      been different. A "reasonable probability" is a probability sufficient to

      undermine confidence in the outcome. This standard of materiality applies

      regardless of whether the evidence is specifically, generally or not at all

      requested by the defense. (United States v. Bagley [1985],

473 U.S. 667

105 S.Ct. 3375

87 L.Ed.2d 481

, followed.)



      {¶ 24} In order to establish a Brady violation, appellant must demonstrate three

elements: 1) the prosecution failed to disclose evidence after requested by the defense;

2) the evidence was favorable to the defense; and 3) the evidence was material. Moore

v. Illinois,

408 U.S. 786

92 S.Ct. 2562

33 L.Ed.2d 706

 (1972); Mt. Vernon v. Link, 5th

Dist. Knox No. 14CA05,

2014-Ohio-4231

.

      {¶ 25} During the competency hearing held on January 4, 2016, appellee

informed the trial court it would not be calling E.C., age five at the time, as a witness,
Delaware County, Case No. 16-CAA-08-0035                                                     8


stating, "[h]er ability to recall events from during the summer even is very limited, and

getting her to sit still for more than about five to ten minutes at a time is rather - - rather

difficult." January 4, 2016 T. at 3. The indictment filed July 17, 2015 indicated the

incident with E.C. occurred between March 31, 2015, through April 7, 2015 when she

was four years old. Defense counsel was put on notice in January 2016 that E.C.'s

recall ability was limited. This was nine months after the dates in the indictment. If five

year old E.C. had limited recall after nine months, it was not a surprise that she could

not recall appellant and/or the incident sixteen months (sentencing) or seventeen

months (memorandum contra) after the dates listed in the indictment. We do not find

appellee withheld evidence.

       {¶ 26} Appellant argues in the alternative, his trial counsel was ineffective by

failing to present evidence of E.C.'s lack of memory to the jury.

       {¶ 27} The standard to establish ineffective assistance of counsel is set out in

State v. Bradley,

42 Ohio St.3d 136

538 N.E.2d 373

 (1989), paragraphs two and three

of the syllabus. Appellant must establish the following:



              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976],

48 Ohio St.2d 391

2 O.O.3d 495

358 N.E.2d 623

; Strickland v. Washington [1984],

466 U.S. 668

104 S.Ct. 2052

80 L.Ed.2d 674

, followed.)
Delaware County, Case No. 16-CAA-08-0035                                                  9


              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.



       {¶ 28} Appellant argues his trial counsel should have presented evidence on

E.C.'s lack of memory by either "calling E.C. to testify, calling a witness to whom E.C.

made statements concerning her lack of memory, or a stipulation." Appellant's Brief at

14.

       {¶ 29} Whether to call a five year old witness to the stand in a sexual abuse case

is a strategic choice of counsel. Based on her limited recall ability, her testimony could

have gone either way. As argued by appellee, placing a five year old child on the

witness stand to answer questions sexual in nature could have very well alienated the

jury. Whether to call a certain witness at trial falls within the realm of trial tactics and

generally will not constitute ineffective assistance of counsel. See State v. Coulter,

75 Ohio App.3d 219

598 N.E.2d 1324

 (1992).           This court must accord deference to

defense counsel's strategic choices made during trial and "requires us to eliminate the

distorting effect of hindsight." State v. Post,

32 Ohio St.3d 380, 388

513 N.E.2d 754


(1987). See State v. Clayton,

62 Ohio St.2d 45, 49

402 N.E.2d 1189

 (1980).

       {¶ 30} Appellant does not list any potential witnesses that could have been called

"to whom E.C. made statements concerning her lack of memory." Defense counsel

cannot be expected to call witnesses that do not exist. Appellant also does not suggest

what kind of "stipulation" defense counsel should have offered.
Delaware County, Case No. 16-CAA-08-0035                                               10


       {¶ 31} Upon review, we do not find any deficiency by defense counsel and

therefore no prejudice to appellant.

       {¶ 32} Assignments of Error I and II are denied.

                                          III, IV

       {¶ 33} In assignments of error three and four, appellant claims he was denied his

right to confront witnesses when the trial court admitted the videotaped interview of E.C.

when E.C. was unavailable for cross-examination, and the trial court erred in admitting

the videotaped interviews of E.C. and K.P. under Evid.R. 803(4), thereby denying his

right to a fair trial. We disagree.

       {¶ 34} In his appellate brief at 17 and 21, appellant again acknowledges because

his trial attorneys did not object to the playing of the videotapes during the trial, this

issue is reviewed under a plain error standard. Crim.R. 52(B);

Long, supra.


       {¶ 35} The Sixth Amendment's Confrontation Clause provides, "[i]n all criminal

prosecutions, the accused shall enjoy the right … to be confronted with the witnesses

against him." In Crawford v. Washington,

541 U.S. 36, 59

124 S.Ct. 1354

158 L.Ed.2d 177

 (2004), the United States Supreme Court explained, "[t]estimonial statements of

witnesses absent from trial have been admitted only where the declarant is unavailable,

and only where the defendant has had a prior opportunity to cross-examine." However,

statements made for the purpose of medical diagnosis and treatment are

nontestimonial. State v. Muttart,

116 Ohio St.3d 5

2007-Ohio-5267

875 N.E.2d 944

.

Further, "[s]tatements by very young children will rarely, if ever, implicate the

Confrontation Clause. Few preschool students understand the details of our criminal
Delaware County, Case No. 16-CAA-08-0035                                             11

justice system." Ohio v. Clark,

576 U.S. ___

135 S.Ct. 2173, 2182

192 L.Ed.2d 306

(2015).

{¶ 36} Appellee sought to introduce E.C.'s videotaped interview under Evid.R.

803(4) which states:

The following are not excluded by the hearsay rule, even though

the declarant is available as a witness:

(4) Statements for Purposes of Medical Diagnosis or

Treatment. Statements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms,

pain, or sensations, or the inception or general character of the cause or

external source thereof insofar as reasonably pertinent to diagnosis or

treatment.

{¶ 37} In his May 27, 2016 motion in limine to exclude videotape evidence of

E.C., appellant sought to exclude E.C.'s forensic interview with the Children's Advocacy

Center within Nationwide Children's Hospital. Appellant argued the interviewers "were

acting as if they were part of the police department, yet holding on to the veneer of

being physician's assistants in order to get the video testimony of the alleged victim

admitted into evidence under Evid.R. 803(4)." Prior to jury selection, the trial court

entertained argument on the motion. Appellee presented redacted copies of the

videotaped interviews of both E.C. and K.P., editing out possible statements not
Delaware County, Case No. 16-CAA-08-0035 12

covered under a hearsay exception. T. at 43-44. The trial court denied appellant's

motion in limine without comment. T. at 56. The next day, the parties agreed both

videotaped interviews could be played in their entirety in exchange for appellant being

able to play portions of his own videotaped interview. T. at 688-690.

{¶ 38} Appellee argues because of this agreement, appellant is precluded from

arguing the issue under the invited error doctrine. Under this doctrine, it is well settled

that "a party will not be permitted to take advantage of an error which he himself invited

or induced the trial court to make." State ex rel. Smith v. O'Connor,

71 Ohio St.3d 660, 663

646 N.E.2d 1115

. See Lester v. Leuck,

142 Ohio St. 91

50 N.E.2d 145

 (1943),

paragraph one of the syllabus. However, appellant made the agreement after the trial

court had ruled the day before that the videotapes were admissible. We find appellant

invited error on any hearsay statements within the videotapes because he agreed to

play them in their entirety, but he did not waive his right to contest their admission under

the plain error doctrine.

       {¶ 39} E.C. was interviewed by Emily Combs, a forensic interviewer, who

interviews children when there are concerns of abuse. T. at 705, 720-721; State's

Exhibit 20. Ms. Combs explained the interviews are recorded, and the purpose of the

interview is to give the child the opportunity to tell someone what has happened to

him/her. T. at 712. She asks non-leading, open-ended questions so the child will tell

her "whatever they want in their own words so I don't give them words to tell me." T. at

706, 717. She explained, "we do those in the hospital setting for medical diagnosis and

treatment, and so I always communicate with the physician or the nurse practitioner

about what the child has told me and that kinda guides their medical exam of the child."
Delaware County, Case No. 16-CAA-08-0035                                              13


T. at 712, 756. She admitted that police officers are part of the team and will watch the

live feed of the interviews.

Id.

The interview is the same whether police are present or

not. T. at 713. After the interview, the child undergoes a medical exam. T. at 714.

Jonathan Thackeray, M.D., conducted a medical exam on E.C. T. at 529-530. He

stated he always talks to the forensic interviewer before conducting the exam. T. at

546.

{¶ 40} K.P was interviewed by Kerri Wilkinson who is also a forensic interviewer.

T. at 793, 806-807; State's Exhibit 21. She testified to the same procedures as used by

Ms. Combs. T. at 796-797, 800-802, 806, 810. Following the interview, Gail Horner,

Ph.D. and SANE nurse, conducted a medical exam on K.P. T. at 582-584. She stated

she always meets with the forensic interviewer "immediately after the interview so that

we can discuss everything that the child disclosed to them during the interview" to guide

her in her examination. T. at 570-571. K.P. was declared competent to testify on

January 5, 2016, and the child did in fact testify during the trial and was subject to

cross-examination. T. at 1246-1294.

{¶ 41} Upon review, we find the statements made by E.C. to Ms. Combs and by

K.P. to Ms. Wilkinson were for the purposes of medical diagnosis or treatment, and the

trial court did not err in admitting the videotapes under Evid.R. 803(4). We find the

playing of E.C.'s videotape did not violate appellant's rights under the Confrontation

Clause.

{¶ 42} Assignments of Error III and IV are denied.
Delaware County, Case No. 16-CAA-08-0035 14

{¶ 43} In assignment of error five, appellant claims the trial court abused its

discretion in denying his motion to sever. We disagree.

{¶ 44} We note appellant did not renew his motion to sever to the new judge

presiding over the second trial. As a result, we will review this assignment of error

under a plain error standard. Crim.R. 52(B);

Long, supra.


       {¶ 45} Crim.R. 8(A) permits joinder of offenses and states the following:



              Two or more offenses may be charged in the same indictment,

       information or complaint in a separate count for each offense if the

       offenses charged, whether felonies or misdemeanors or both, are of the

       same or similar character, or are based on the same act or transaction, or

       are based on two or more acts or transactions connected together or

       constituting parts of a common scheme or plan, or are part of a course of

       criminal conduct.



       {¶ 46} Crim.R. 14 governs relief from prejudicial joinder and states: "If it appears

that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an

indictment, information, or complaint, or by such joinder for trial together of indictments,

informations or complaints, the court shall order an election or separate trial of counts,

grant a severance of defendants, or provide such other relief as justice requires."

       {¶ 47} In State v. Schaim,

65 Ohio St.3d 51, 59

1992-Ohio-31

600 N.E.2d 661

,

the Supreme Court of Ohio explained the following:
Delaware County, Case No. 16-CAA-08-0035                                                 15




              When a defendant claims that he was prejudiced by the joinder of

       multiple offenses, a court must determine (1) whether evidence of the

       other crimes would be admissible even if the counts were severed, and (2)

       if not, whether the evidence of each crime is simple and distinct. State v.

       Hamblin (1988),

37 Ohio St.3d 153, 158-159

524 N.E.2d 476, 481-482

;

       Drew v. United States (C.A.D.C.1964),

331 F.2d 85

. If the evidence of

       other crimes would be admissible at separate trials, any "prejudice that

       might result from the jury's hearing the evidence of the other crime in a

       joint trial would be no different from that possible in separate trials," and a

       court need not inquire further. Drew v. United States,

331 F.2d at 90

{¶ 48} Evid.R. 404(B) governs other crimes, wrongs or acts and states the

following in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

{¶ 49} The rule is in line with R.C. 2945.59 which states:
Delaware County, Case No. 16-CAA-08-0035 16

In any criminal case in which the defendant's motive or intent, the

absence of mistake or accident on his part, or the defendant's scheme,

plan, or system in doing an act is material, any acts of the defendant

which tend to show his motive or intent, the absence of mistake or

accident on his part, or the defendant's scheme, plan, or system in doing

the act in question may be proved, whether they are contemporaneous

with or prior or subsequent thereto, notwithstanding that such proof may

show or tend to show the commission of another crime by the defendant.

{¶ 50} After reviewing the evidence presented, we find if separate trials were

held, each offense would be admissible in the other case to show appellant's motive

and intent (sexual gratification), opportunity and plan (a teacher targeting very young

female students in his chess class while at school), and absence of mistake or accident

(touching was not innocent or by accident).

{¶ 51} Further, we find the evidence of each offense was simple and direct.

"Evidence is 'simple and direct' if the jury is capable of readily separating the proof

required for each offense, if the evidence is unlikely to confuse jurors, if the evidence is

straightforward, and if there is little danger that the jury would 'improperly consider

testimony on one offense as corroborative of the other.' " State v. Freeland, 4th Dist.

Ross No. 12CA003352,

2015-Ohio-3410

, ¶ 14, citing State v. Skatzes,

104 Ohio St.3d 195

2004-Ohio-6391

819 N.E.2d 215

, ¶ 34.
Delaware County, Case No. 16-CAA-08-0035 17

{¶ 52} The jury found appellant guilty of Count 1 (E.C.) and Count 3 (K.P.) and

not guilty of Count 2 (E.C.). Based upon this verdict, it is clear the jury did not confuse

the evidence relating to the three separate charges.

{¶ 53} "Courts have held that any prejudice that results from the joinder of

offenses is minimized when a trial court cautions a jury before deliberations to consider

each count, and the evidence applicable to each count separately, and to state its

findings as to each count uninfluenced by its verdict on any other counts." Freeman at

¶ 16. At the conclusion of the evidence, the trial court specifically instructed the jury as

follows (T. at 1597):

A charge as set forth in each count in the Indictment constitutes a

separate and distinct matter. You must consider each count and the

evidence applicable to each count separately, and you must state your

finding as to each count uninfluenced by your verdict as to any other

count. The Defendant may be found guilty or not guilty of any one or all of

the offenses charged.

{¶ 54} Upon review, we find no error in the offenses being joined for trial.

{¶ 55} Assignment of Error V is denied.
Delaware County, Case No. 16-CAA-08-0035 18

{¶ 56} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. concurs and

Hoffman, J. concurs separately.

EEW/sg 508
Delaware County, Case No. 16-CAA-08-0035 19

Hoffman, P.J., concurring

{¶57} I concur in the majority’s analysis and disposition of Appellant’s first and

second assignments of error.

{¶58} I further concur in the majority’s disposition of the third and fourth

assignment of errors, but do so for a different reason.

{¶59} It is a well-established principle Confrontation Clause rights, like other

constitutional rights, can be waived. State v. Pasqualone,

121 Ohio St. 3d 186

, 189–90,

903 N.E.2d 270, 274

2009-Ohio-315

, ¶ 14. See Brookhart v. Janis (1966),

384 U.S. 1, 4

86 S.Ct. 1245

16 L.Ed.2d 314

; Hawkins v. Hannigan (C.A.10, 1999),

185 F.3d 1146, 1154

 (“There is no doubt that a defendant may waive” the right to confrontation). See

also Hinojos–Mendoza v. People (Colo.2007),

169 P.3d 662, 668

 (United States

Supreme Court's decision in Crawford v. Washington “did not alter the fact that the right

to confrontation can be waived”); Magruder v. Commonwealth (2008),

275 Va. 283, 295

657 S.E.2d 113

(Crawford did not speak to the issue of waiver of right to confrontation).

{¶60} I find Appellant waived his right to confrontation in agreeing to allow the

videotape of E.C.’s interview, knowing she was unavailable to testify. Appellant did so

pursuant to an agreement by which he was able to introduce his own videotaped

interview without taking the stand.

{¶61} I agree Appellant invited any error with regard to the videotaped interview

constituting impermissible hearsay. A criminal defendant may not make an affirmative,

apparently strategic, decision at trial and then complain on appeal the result of that

decision constitutes reversible error. State v. Doss, Eighth Dist. No. 84433, 2005-Ohio-

775. This is precisely the situation the invited error doctrine seeks to avert and, in this

case, the doctrine precludes asserting as error the introduction of the videotaped
Delaware County, Case No. 16-CAA-08-0035 20

interview as hearsay. I further find any error to be harmless as the statements were

made for the purpose of medical treatment or diagnosis, and provided to the treating

physician; therefore, admissible under Evidence Rule 803(4).

{¶62} I further concur in the majority’s holding with regard to the fifth assignment

of error. However, I do so based upon a different rationale.

{¶63} Appellant failed to renew his motion to sever at the second trial. Therefore,

Appellant has waived all but plain error.

{¶64} In the case at bar, identity is not at issue. There is no dispute Appellant is

the perpetrator accused of the acts. As the identity of the person who committed the

crime was not an issue at trial, the other acts evidence would not have been properly

admitted to prove appellant's scheme, plan, or system in committing the crimes

charged. Mt. Vernon v. Hayes, Knox App. No. 09–CA–0007,

2009-Ohio-6819

2009 WL 4985247

, at ¶ 26. For a comparable analysis, see also this court's opinions in State v.

Ross, Stark App. No. 2009CA00253,

2010-Ohio-5096

2010 WL 4111163

, and State v.

Gresh, Delaware App. No. 09–CAA–012–0102,

2010-Ohio-5814

2010 WL 4884218

.

       {¶65} Appellant does not claim mistake or accident on his part; therefore, the

other acts evidence would not be admissible to prove absence of mistake. Rather,

Appellant denied committing the acts altogether.

       {¶66} The majority finds the evidence admissible to prove motive or intent

(sexual gratification), and opportunity or plan (a teacher targeting very young female

students in his chess class while at school.) Appellant admits to interaction with the

children, and to acting as their chess teacher; therefore, opportunity or plan is not at

issue. Since it is assumed human conduct is prompted by a desire to achieve a specific
Delaware County, Case No. 16-CAA-08-0035                                                 21


result, the question of motive is generally relevant in all criminal trials, even though the

prosecution need not prove motive in order to secure a conviction. State v. Smith,

84 Ohio App. 3d 647, 665

617 N.E.2d 1160

, 1172–73 (1992); See Fabian v. State (1918),

97 Ohio St. 184

119 N.E. 410

. The motive for the alleged crimes involved in the present

case is apparent. A person commits or attempts to commit gross sexual imposition for

the obvious motive of sexual gratification. Since motive was not at issue at the trial,

other acts testimony was not admissible to prove this matter.”

Id.,

 43 Ohio St.2d at 70–

71, 72 O.O.2d at 39–40, 330 N.E.2d at 724. See, also, State v. Whitmer (May 20,

1986), Marion App. No. 9–84–39, unreported,

1986 WL 5908

. Appellant’s motive is

apparent from the charges and is not a material issue. State v. Smith (1992),

84 Ohio App.3d 647, 665

, 617 Therefore, I would find the evidence as to each victim

inadmissible other acts evidence.

       {¶67} In State v. Slaven,

191 Ohio App. 3d 340

, 346–47,

945 N.E.2d 1142, 1147

2010-Ohio-6400

, this Court held,



              We find that the probative value of the evidence at issue is

       substantially outweighed by the danger of unfair prejudice, of confusion of

       the issues, or of misleading the jury. The similarities between the sexual

       abuses committed against each victim and the inflammatory nature of the

       offenses *347 elevate the risk of prejudice to the degree that the trial court

       should have severed the offenses. See State v. Kaufman,

187 Ohio App.3d 50

2010-Ohio-1536

931 N.E.2d 143

.
Delaware County, Case No. 16-CAA-08-0035                                                 22

              In State v. Frazier, Cuyahoga App. No. 83024,

2004-Ohio-1536

2004 WL 443650

, the Eighth District Court of Appeals addressed this

       issue and held that the evidence of the other sexually related actions

       would not have been admissible in both trials if the offenses had been

       tried separately. The court noted, “[T]his combined with the fact that the

       offenses against each victim varied in degree and that the testimony by

       each victim was similar, the fact-finder would have had a very difficult time

       looking at the evidence supporting each offense as simple and distinct

       because the temptation would be too great to respond to the evidence

       emotionally rather than rationally.”

Id.


              We hold that the evidence as to each victim would not be

       admissible in both trials if the offenses were tried separately, and the

       varying degree of testimony as to each victim obscures a finding as to the

       evidence's being simple and direct.



       {¶68} Appellant has waived all but plain error. “Notice of plain error … is to be

taken with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” State v. Long (1978),

53 Ohio St.2d 91

372 N.E.2d 804

. I concur in the majority’s finding the trial court’s denial of the motion to sever does

not amount to plain error. While I find the evidence as to each victim would not be

admissible if the trials were held separately, and the jury’s temptation would be great to

respond emotionally, rather than, rationally, I do not find the trial court committed plain

error as the evidence as to each victim is simple and direct.