[Cite as State v. Zimmerman,
2019-Ohio-721.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-75
v. : (C.P.C. No. 17CR-826)
Edwin E. Zimmerman, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 28, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
Swanson, for appellee. Argued: Valerie B. Swanson.
On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex, for appellant. Argued: Robert D. Essex.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Edwin E. Zimmerman, appeals a judgment of the
Franklin County Court of Common Pleas entered on January 9, 2018, sentencing him to
serve 11 years in prison for the crime of kidnapping. We find that the jury foreperson's
admission that she saw excluded prejudicial evidence and relayed what she saw to the other
jurors at the outset of deliberations, combined with the fact that police officer witnesses
offered hearsay testimony and improperly vouched for the credibility of the victim,
deprived Zimmerman of a fair trial. We reverse and remand the case for a new trial.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 9, 2017, a Franklin County Grand Jury indicted Zimmerman for
a single count of kidnapping. (Feb. 9, 2017 Indictment.) Zimmerman pled "not guilty" and
his case was tried before a jury. (Feb. 13, 2017 Plea Form.) Trial began on October 2, 2017
with testimony by the victim, Ashley Ward.
No. 18AP-75 2
{¶ 3} Ward testified that at the time of the alleged offense she was severely addicted
to heroin and had been using pills or heroin (and sometimes crack cocaine) since 2003.
(Tr. at 59-60, 63-64, 71.)1 She admitted that she had resorted to prostitution to help pay
for her drug habit; she walked streets near Parsons Avenue. (Tr. at 34.) At the time of the
incident, she was spending up to $400 per day on drugs though she only made $100 to
$200 per day as a prostitute. (Tr. at 83-84.) She acknowledged heroin dulled her senses,
she sometimes would lose time while on a "bender," and she sometimes would become
quite desperate for drugs. (Tr. at 65-69.) She also admitted she had used heroin within
hours of the offense but stated she had come down and needed another dose at the time
when she encountered Zimmerman. (Tr. at 95-96.)
{¶ 4} She said Zimmerman picked her up in his white minivan shortly after
midnight on January 1, 2017 by offering her $300 for two hours of her time. (Tr. at 71-72.)
Since she sometimes charged as little as $60 for sexual intercourse, $300 was a good offer,
so she accepted and got in the vehicle. (Tr. at 69-72.) She testified that she was under the
impression that he was going to take her to his nearby house. (Tr. at 41-42, 91-92.) When
Zimmerman had been driving for a time, she told him she wanted to stop and get her "stuff"
if they were going to go so far away, but he said he had "stuff" at his house. (Tr. at 42-43.)
By "stuff" she testified she meant heroin. Id.
{¶ 5} Her testimony about what happened next varied somewhat between her
testimony on direct and cross-examination. As she rode in Zimmerman's van, she said the
conversation turned to prostitutes who had been found dead in a cornfield. (Tr. at 42-43)
On direct examination, she described Zimmerman as mocking when he discussed whether
the authorities had found out who did it. (Tr. at 43.) On cross-examination, she denied
that Zimmerman was ever mean, menacing, or angry during the drive and testified she
could not remember who brought up the topic. (Tr. at 94-97, 114.) The drive ended when
Zimmerman pulled into a cornfield; Ward told him she was not comfortable with the
location given about what they had been talking. (Tr. at 42-46.) Zimmerman indicated
that it would all be over soon. (Tr. at 46.) Ward initially testified she interpreted this
1 The transcript of the trial and sentencing in this case was filed on March 13, 2018 in two consecutively
paginated volumes. For citation simplicity and because the volumes are consecutively paginated, we cite only
to the page referenced.
No. 18AP-75 3
exchange as being an indication that Zimmerman intended to kill her but then later agreed
it was an attempt to comfort her. (Tr. at 46, 99-100.)
{¶ 6} When Ward indicated she thought they were going to go to a house,
Zimmerman said they were actually just going to stay in the van. (Tr. at 47.) He then told
her to get in the back of the van. (Tr. at 48.) When she refused, he pulled a folding
pocketknife from the side panel in the door of his van with its three-inch blade deployed.
(Tr. at 48-49.) He repeatedly sliced the air near her face and again told her to get in the
back seat. (Tr. at 48-49, 116.) At that point, she got out of the van, and wrote the license
number down on her sleeve while Zimmerman drove away. (Tr. at 49-51.) On direct
examination Ward testified that as she got out of the van Zimmerman grabbed for her but
missed because he was restrained by his seatbelt. (Tr. at 49-50.) However, on cross-examination she admitted the van had power locks but Zimmerman did not try to lock her
in and he made no attempt to chase her when she ran away. (Tr. at 97-98.) She also said
she could have gotten out of the van at any time and (in conflict with her other testimony)
testified she had no issues in getting out of the vehicle. (Tr. at 98, 107, 111.) She also
admitted she had seen Zimmerman in the neighborhood since the event and he had never
bothered her. (Tr. at 50, 90.)
{¶ 7} Ward explained she obtained a ride back to Parsons Avenue by knocking on
the door of a neighboring house and asking the person there for a ride. (Tr. at 51-52.) She
did not contact the police at that point in time and instead got high. (Tr. at 118-20.) She
was unable to relate where the area was or from which house she had obtained a ride. (Tr.
at 92-93.) She attributed the lack of recall to a brain injury sustained as the result of an
auto accident when she was a child. Id. She said she only told the police about Zimmerman
when, approximately two weeks later, the police questioned her in connection with an
investigation unrelated to Zimmerman. (Tr. at 118-20.) She admitted she was upset that
Zimmerman did not pay her.
Id.
{¶ 8} The next witness to testify was a patrol officer who generally worked the
neighborhood in which Ward operated. (Tr. at 133-34.) He testified he knew Ward and
could tell by her precipitously declining appearance that she was an addict. (Tr. at 135.)
But he testified he nonetheless had found her to be "honest" about anything he asked her.
Id. He testified Ward told him her story and he passed along the information she gave him
No. 18AP-75 4
to detectives with the Columbus Division of Police. (Tr. at 159.) The officer was permitted,
over the objection of the defense, to recount much of the substance of what Ward told him,
largely repeating the narrative Ward offered before the trial court cut off his testimony as
improper hearsay. (Tr. at 136-38.) Though the prosecutor initially insisted that the
material was not being offered for the truth of the matters asserted, shortly thereafter, the
prosecutor indicated the officer's testimony was intended to improve Ward's credibility.
(Tr. at 136-38, 140.)
{¶ 9} Another patrol officer, a Community Response Team ("CRT") officer, also
testified he knew many of the prostitutes who operated in Ward's area. (Tr. at 167-69.)
Although he did not know Ward well, at the request of officers from Fairfield County
investigating another crime, he made contact with Ward, thereby connecting her with the
police and setting in motion the events that led to Zimmerman. (Tr. at 170-72.) Although
the officer admitted he did not know Ward, he was permitted, over a defense objection, to
testify that he "believe[d] her." (Tr. at 173-74.)
{¶ 10} The final two witnesses were a crime scene search detective and a forensic
science expert. These witnesses confirmed that Zimmerman drove a white minivan with
the same license number written down by Ward and, according to cellular phone data, was
in the area of Parsons Avenue on New Year's Eve 2016. See State's Ex. B; State's Exs. C2-
C7; Tr. at 139-40, 187. One of the items found in the van and photographed by the crime
scene search detective was a knife. (Tr. at 128-30, 195-96, 232-33.) Because the knife
evidently did not match the description given by Ward, the trial court concluded that the
photograph was prejudicial and misleading rather than probative. (Tr. at 128-30, 195-96.)
It therefore excluded the photograph (which had been marked, State's Exhibit C22) from
evidence and that photograph was never intentionally shown to the jury or admitted into
evidence. (Tr. at 195-96, 232-33.)
{¶ 11} In opening and closing statements, Zimmerman's attorneys did not contest
that Zimmerman picked up Ward on January 1, 2017 in order to pay her for sex, or that he
drove her to a remote spot in order to complete that transaction. (Tr. at 27-30, 245-48.)
However, counsel argued Ward was behaving erratically and when she became spooked by
her conversation with Zimmerman about missing prostitutes, she ran away once
Zimmerman parked his van in a cornfield. Id. Zimmerman's attorneys argued Zimmerman
No. 18AP-75 5
never pulled a knife and noted that, by Ward's own admission, she could have left the
vehicle at any time and Zimmerman made no attempt to stop or give chase (even though
he was in a vehicle and she was on foot).
Id.
{¶ 12} On October 3, 2017, the jury found Zimmerman guilty of kidnapping. (Oct. 3,
2017 Verdict Form; Tr. at 267-68.) Following the verdict, in discussions with counsel, one
of the jurors inquired about where the knife was found and indicated that she had seen a
picture of it on the prosecutor's laptop. (Oct. 11, 2017 Hearing Tr. at 2, filed Mar. 13, 2018;
Oct. 12, 2017 Mot. for New Trial at 2.) The trial court held a hearing on the subject. The
juror (who had served as the foreperson of the jury) said that she saw the photograph on
the prosecutor's laptop and that she communicated that fact to the other jurors "early on"
in the deliberations before anyone "said anything." (Oct. 11, 2017 Hearing Tr. at 6-7.) After
questioning about whether it affected her verdict, the foreperson claimed there had been
no effect, that the jury had been focused on the evidence provided, and that she did not
think the other jurors believed her revelation about the knife. Id. at 6-8.
{¶ 13} Despite having accepted the foreperson's answers, in the trial court's decision
on Zimmerman's motion for a new trial, the court found that the foreperson's statements
were inadmissible. The trial court reasoned that because the jury's exposure to prejudicial
excluded evidence was not revealed by "outside evidence," it did not satisfy Ohio Rule of
Evidence 606(B). (Nov. 16, 2017 Decision at 4-7.) Thus, asking the foreperson to speak on
the topic of deliberations had been inappropriate. Id. The trial court further found that
even if the foreperson's statements could have been considered, the knife was not
"devastating" evidence and there was no reasonable possibility that the jury had considered
the knife such that it "contributed" to Zimmerman's conviction. Id. at 7.
{¶ 14} On January 4, 2018, the trial court convened a sentencing hearing. (Tr. at
270.) Based on the fact that Zimmerman was on probation when he committed the offense
and that he had a poor criminal record (which included several sex crimes similar in nature
to that of which he was accused in this case), the trial court sentenced him to the maximum
sentence of 11 years. (Tr. at 281-85.)
{¶ 15} Zimmerman now appeals.
No. 18AP-75 6
II. ASSIGNMENTS OF ERROR
{¶ 16} Zimmerman assigns six errors for our review:
[1.] Appellant was denied his due process right to a fair trial
when the court failed to grant him a new trial based on the jury
learning of a photograph of a knife which was not introduced
into evidence nor used in the crime and which was highly
prejudicial to the appellant.
[2.] The trial court erred to the prejudice of the appellant in
permitting numerous instances of the state improperly
bolstering its main witness' credibility via other witnesses.
[3.] The appellant was denied the effective assistance of counsel
based on numerous instances of failure to object to improper
and highly prejudicial testimony.
[4.] The numerous instances [of] improper and prejudicial
testimony in addition to the jury's knowledge of the knife that
was not introduced into evidence rise to the level of cumulative
error.
[5.] Appellant's kidnapping conviction was not supported by
sufficient evidence.
[6.] Appellant's kidnapping conviction was against the
manifest weight of the evidence.
III. DISCUSSION
A. First Assignment of Error – Whether the Trial Court Erred in Failing to
Grant Zimmerman a New Trial Based on the Revelation that the Jury
was Exposed to Excluded Evidence the Court had Already Ruled was
Prejudicial
1. Whether Consideration of the Juror's Testimony was Proper
{¶ 17} Ohio Rule of Evidence 606(B) provides:
Inquiry into validity of verdict or indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the
course of the jury's deliberations or to the effect of anything
upon that or any other juror's mind or emotions as influencing
the juror to assent to or dissent from the verdict or indictment
or concerning the juror's mental processes in connection
therewith. A juror may testify on the question whether
extraneous prejudicial information was improperly brought
to the jury's attention or whether any outside influence was
improperly brought to bear on any juror, only after some
No. 18AP-75 7
outside evidence of that act or event has been presented.
However a juror may testify without the presentation of any
outside evidence concerning any threat, any bribe, any
attempted threat or bribe, or any improprieties of any officer of
the court. A juror's affidavit or evidence of any statement by the
juror concerning a matter about which the juror would be
precluded from testifying will not be received for these
purposes.
(Emphasis sic and added.) The trial court concluded that the juror testimony should not
have been considered because no "outside evidence" had been submitted pointing to the
fact that "extraneous prejudicial information was improperly brought to the jury's
attention." Id.; see also Nov. 16, 2017 Decision & Entry at 4-7.
{¶ 18} But "a juror may testify without the presentation of any outside evidence
concerning any … improprieties of any officer of the court." Evid.R. 606(B). The Oxford
English Dictionary defines "impropriety," in relevant part as, "[w]ant of accordance with
… reason or rule; incorrectness, erroneousness, inaccuracy." Oxford English Dictionary
(Online Ed.July 2018). The Supreme Court of Ohio has found impropriety where, for
example, a bailiff erroneously informed a jury that they were not permitted to fail to reach
a verdict. State v. Adams, 141 Ohio St. 423 (1943); see also Evid.R. 606(B) (staff notes
citing Adams and stating "the aliunde rule does not apply where the irregularity is due to
the conduct of an officer of the court").2 There is nothing to suggest in this case that the
prosecutor intentionally or maliciously showed the juror the excluded evidence, yet it was
surely "erroneous" or an "impropriety" to have displayed the excluded photograph in a
position in which it could have been (and was) observed by a member of the jury who
admitted that she told the other jurors what she had seen.
{¶ 19} Thus, we agree with the trial court's original decision to permit the foreperson
to give a statement concerning the impact of the accidental impropriety under Evid.R.
606(B). We do not agree with the trial court's later decision to retroactively exclude the
statement it elicited. We therefore approach the question of whether the trial court erred
in denying Zimmerman's motion for a new trial in consideration of the foreperson's
statements.
2 But cf. State v. Spurlock, 2d Dist. No. 17954, 2000 WL 1433936,
2000 Ohio App. LEXIS 4490, *9-10
(Sept. 29, 2000) (using the Latin maxim noscitur a sociis to infuse the definition of "improprieties" with an
association of threats and bribes).
No. 18AP-75 8
2. Whether the Trial Court Erred in Refusing to Grant Zimmerman a
New Trial
{¶ 20} Ohio Rule of Criminal Procedure 33 provides:
(A) Grounds. A new trial may be granted on motion of the
defendant for any of the following causes affecting materially
his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of
the court, or abuse of discretion by the court, because of which
the defendant was prevented from having a fair trial;
…
(E) Invalid grounds for new trial. No motion for a new
trial shall be granted or verdict set aside, nor shall any
judgment of conviction be reversed in any court because of:
…
(5) Any other cause, unless it affirmatively appears from the
record that the defendant was prejudiced thereby or was
prevented from having a fair trial.
(Emphasis sic.) Crim.R. 33(A)(1) and (E)(5).
{¶ 21} We review a trial court's decision on a motion for a new trial for abuse of
discretion. State v. Meek, 10th Dist. No. 16AP-549, 2017-Ohio-9258, ¶ 23. A trial court's
decision constitutes an abuse of discretion when it is, among other things, "unreasonable."
Id., citing Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983). It is also error, even
under an abuse of discretion standard, for a trial court to err legally because " 'no court has
the authority, within its discretion, to commit an error of law.' " JPMorgan Chase Bank,
N.A. v. Liggins, 10th Dist. No. 15AP-242,
2016-Ohio-3528, ¶ 18, quoting State v. Akbari,
10th Dist. No. 13AP-319,
2013-Ohio-5709, ¶ 7; see also, e.g., State v. Chandler, 10th Dist.
No. 13AP-452,
2013-Ohio-4671, ¶ 8 (Citations omitted.) ("Although an abuse of discretion
is typically defined as an unreasonable, arbitrary, or unconscionable decision, we note that
no court has the authority, within its discretion, to commit an error of law.").
{¶ 22} In this case, the trial court excluded the picture of the knife because it found
it was "prejudicial" and that the prejudice of showing it to the jury "certainly outweigh[ed]
the probative value." (Tr. at 195-96.) Then, after the verdict, the jury foreperson revealed
that, she had seen the knife picture on the prosecutor's laptop and, "early" in deliberations,
No. 18AP-75 9
before anyone had even "said anything," she had informed her fellow jurors. (Oct. 11, 2017
Hearing Tr. at 6-7.) Notwithstanding the fact that the trial court had originally concluded
that the picture of the knife was "prejudicial" and that the prejudice created by the jury
seeing it would "certainly outweigh[] [any] probative value," the trial court denied the
motion for a new trial because Zimmerman had failed to prove prejudice. (Nov. 16, 2017
Decision at 7.) Specifically, he had failed to prove that the knife picture "contributed to
[his] conviction" or was "devastating" such that the jurors would have ignored the general
instruction to confine their consideration of the case to the evidence presented. Id.
{¶ 23} Yet, Zimmerman was not required to prove that the knife picture was
"devastating" or that it "contributed to [his] conviction." (Nov. 16, 2017 Decision at 7.) The
law only required Zimmerman to show an "irregularity in the proceedings" and that he "was
prejudiced thereby or was prevented from having a fair trial." Crim.R. 33(A)(1) and (E)(5).
The jury foreperson admitted an irregularity occurred when she saw the picture and told
the other jurors about it before they began their deliberations. (Oct. 11, 2017 Hearing Tr. at
6-7.) And the trial court itself had excluded the knife picture on the grounds that, if the jury
were to see it, it would cause unfair prejudice to Zimmerman. (Tr. at 195-96.) As this was
a single-witness case where the sole victim-witness' testimony suffered from a number of
inconsistencies and she admitted a number of impairing conditions, the prejudice posed by
the knife is enhanced to the point where it begins to imbue doubt in the outcome. See supra
at ¶ 5-7; see post at ¶ 33-34.
{¶ 24} The plaintiff-appellee, State of Ohio, argues that Zimmerman never
overcame the presumption that the jury followed the court's instructions and confined itself
to deliberating based solely on the evidence introduced at trial because Zimmerman never
showed that the knife picture was "devastating." (State's Brief at 19-20, citing Green v.
Miller, 483 U.S. 756, 767, fn. 8 (1987.) In other words, the State argues that since the jury
is presumed to follow the trial court's instructions and since there was no showing that the
knife was too "devastating" for the jury to ignore, we cannot infer that the jury violated the
court's instruction to consider only properly admitted evidence.
{¶ 25} However, we need not infer anything where there is direct evidence. The
presumption that the jury obeyed the trial court's instructions was compromised the
moment the jury foreperson admitted she saw the knife picture and immediately related
No. 18AP-75 10
what she saw to her fellow jurors before anyone else even had a chance to say anything at
the outset of deliberations. (Oct. 11, 2017 Hearing Tr. at 6-7.) It is true that, after that
admission, the foreperson claimed that the picture did not change the result of her
deliberation and claimed she found it unlikely that any of her fellow jurors even believed
her. Id. at 6-8. But if it was apparently not inconsequential to the foreperson; otherwise, it
seems unlikely she would mention the knife at all to anyone. The fact that she felt the need
to tell her fellow jurors about it at the outset of deliberations and then immediately question
the attorneys about it after the verdict suggests its importance to her at the time of the
verdict than perhaps in later retrospect.3 Moreover, her statement that her fellow jurors
did not believe her is not something she was in a position to know, and that speculation is
rendered even more unlikely by her trusted status as elected foreperson of the jury.
{¶ 26} By requiring proofs from Zimmerman in excess of what is required by law for
supporting a motion for a new trial, and by concluding that no prejudice had been shown
despite having already found that introducing the knife picture would have been
prejudicial, the trial court acted unreasonably. Under the circumstances, it abused its
discretion in denying Zimmerman's motion for a new trial. Zimmerman's first assignment
of error is sustained.
B. Second Assignment of Error – Whether the Trial Court Erred in
Permitting Bolstering of Ward's Credibility by Officer Witnesses
{¶ 27} "Generally, '[t]he admission of evidence is within the discretion of the trial
court.' " Shaw v. Underwood, 10th Dist. No. 16AP-605, 2017-Ohio-845, ¶ 25, quoting
Brown v. Dept. of Rehab. & Corr., 10th Dist. No. 13AP-804,
2014-Ohio-1810, ¶ 36, citing
Banford v. Aldrich Chem. Co.,
126 Ohio St.3d 210,
2010-Ohio-2470, ¶ 38. Thus, the
decision to admit or exclude evidence is reviewed for abuse of discretion. Underwood at
¶ 25. But, even in the context of evidentiary questions, "no court has the authority, within
its discretion, to commit an error of law." Liggins at ¶ 18. Zimmerman argues that three
exchanges with two of the officer-witnesses at trial amounted to the officers improperly
bolstering Ward's credibility and should not have been permitted by the trial court.
3 By the time she minimized the impact of her statements to the jury, she perhaps may have begun to suspect
that she erred in failing to follow the trial court's instructions. (Oct. 11, 2017 Hearing Tr. at 5, 7) (trial court
twice reassured the foreperson that there were no "right or wrong answers" and that she was not in "trouble"
in order to elicit statements from her).)
No. 18AP-75 11
(Zimmerman Brief at 19-30.) We address these in the order they are alleged to have
occurred at trial.
{¶ 28} First, an officer testified that he knew Ward and had found her to be "honest"
about anything he asked her. (Tr. at 135.) Specifically, he testified as follows:
Q. Did you get to know her?
A. Yes. We talked to her frequently. Actually, she was one of
the nicer girls. She was always willing to help us out. If we
had a question, she would always be honest with us about
what we were asking. Whenever we saw her, we would
usually stop and have a chat with her.
Id. Because Zimmerman did not object when this testimony was offered, we review its
admission for plain error. State v. Rogers,
143 Ohio St.3d 385,
2015-Ohio-2459, ¶ 22.
{¶ 29} This testimony could be considered evidence of Ward's character for
truthfulness. Ohio Rule of Evidence 608(A) controls the admissibility of such testimony:
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to
these limitations: (1) the evidence may refer only to character
for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness
for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
We note that Ward's character for truthfulness was put in issue by the defense during
argument, but was not attacked through evidence. This Court has held "[v]igorous cross-examination or opening statements do not constitute the type of attack upon a witness'
character for truthfulness envisioned by Evid.R. 608(A)(2)." State v. Ponce, 10th Dist. No.
95APA11-1450, 1996 WL 589267,
1996 Ohio App. LEXIS 4552, *19 (Oct. 10, 1996), citing
United States v. Thomas,
768 F.2d 611, 618 (5th Cir.1985); United States v. Danehy,
680
F.2d 1311, 1314 (11th Cir.1982); Beard v. Mitchell,
604 F.2d 485 (7th Cir.1979). Although
the defense in this case certainly argued that the jury should not believe Ward based on
Ward's sometimes self-contradictory testimony, her personal choices, and her admitted
impairments, it is a close question as to whether the defense "attacked" her "truthfulness"
for Evid.R. 608(A) to apply. Because it is a close question, the admission of this testimony
without objection is not an " 'obvious defect' " in the proceedings and hence is not "plain
error." Rogers at ¶ 22, quoting State v. Barnes,
94 Ohio St.3d 21, 27 (2002).
No. 18AP-75 12
{¶ 30} The second incident Zimmerman challenges was one in which an officer was
permitted, over the objection of the defense, to recount much of the substance of what Ward
told him, largely repeating the narrative Ward offered before the trial court cut off his
testimony as improper hearsay. (Tr. at 136-38.) Though the prosecutor initially insisted
that the material was not being offered for the truth of the matters asserted, shortly
thereafter, the prosecutor indicated the officer's testimony, repeating what Ward told him,
was intended to improve Ward's credibility. (Tr. at 136-38, 140.)
{¶ 31} The State has sought to justify the admission of this testimony for the purpose
of showing the basis on which and how the officer's investigation proceeded and not for the
truth, arguing that the trial court's instruction to the jury cured any confusion related to it.
(State Brief at 28.) However the officer's "investigation" consisted of taking down Ward's
statement and delivering it to detectives at headquarters. (Tr. at 159.) Nothing other than
the fact that Ward gave the officer a statement about an alleged crime is necessary to
establish for the jury the course of that limited "investigation." This purpose did not supply
a need for the officer to recount the substance of any of what Ward told him and the only
conceivable purpose of that testimony was to suggest the truth of Ward's statements by
showing that she had told the same story before. (Tr. at 136-37.) The trial court then
reversed course and sustained the objection. Id.; Evid.R. 801(C); Evid.R. 802. But this
happened only after the officer had repeated much of Ward's narrative and, despite the
State's arguments, the trial court did not instruct the jury to disregard the improper
testimony, but rather, allowed further (albeit more limited) commentary by the officer on
direct examination about what Ward had said. (Tr. at 137-40.) This was error.
{¶ 32} The final incident Zimmerman raises was an instance in which a different
officer admitted he did not know Ward but he was nonetheless permitted, over defense
objection, to testify that she told him her story and he "believe[d] her." (Tr. at 173-74.)
Notwithstanding Evid.R. 608, testimony that a particular witness is telling the truth about
something in particular infringes on the role of the factfinder and is " 'egregious [and]
prejudicial.' " State v. Allen, 8th Dist. No. 92482, 2010-Ohio-9, ¶ 45-50, quoting State v.
Boston,
46 Ohio St.3d 108, 128-29 (1989); see also State v. Eastham,
39 Ohio St.3d 307,
312 (1988). The jury—not any witness, officer, or expert—is the arbiter of credibility in a
criminal trial and it was for the jury to decide if it was going to "believe" Ward or not. See
No. 18AP-75 13
e.g., State v. Smith, 10th Dist. No. 16AP-21,
2017-Ohio-9283, ¶ 46, 48-50. Overruling the
defense objection to this testimony was error.
{¶ 33} Zimmerman's second assignment of error is sustained in part and overruled
in part.
C. Fourth Assignment of Error – Cumulative Effect
{¶ 34} As his fourth assignment of error, Zimmerman argues that the cumulative
effect of the errors he has raised resulted in denying him a fair trial. (Zimmerman Brief at
38-39.) "Pursuant to the doctrine of cumulative error, a judgment may be reversed where
the cumulative effect of errors deprives a defendant of his constitutional rights, even though
the errors individually do not rise to the level of prejudicial error." State v. McClurkin, 10th
Dist. No. 11AP-944, 2013-Ohio-1140, ¶ 61, citing State v. Johnson, 10th Dist. No. 10AP-137,
2010-Ohio-5440, ¶ 34; State v. Garner,
74 Ohio St.3d 49, 64, (1995). The trial court
committed error when it allowed improper testimony by police officers that was admittedly
offered to bolster Ward's credibility. Likewise, the trial court erred by failing to grant
Zimmerman a new trial based on a direct admission that the jury was exposed to, and spent
at least some time considering in its deliberations an excluded and salient piece of evidence,
the photo of Zimmerman's knife, for which admission had been denied by the trial court.
The individual prejudicial effect of each these errors was significant and, when considered
in context of the rest of the evidence adduced at trial, the collective or cumulative effect of
these issues deprived Zimmerman of a fair trial.
{¶ 35} Ward testified that as she and Zimmerman drove, they had a conversation
about prostitutes who had been found dead in a cornfield, but she equivocated on who
brought it up and inconsistently described Zimmerman's demeanor during their
conversation. (Tr. at 42-43, 94-97, 114.) When Zimmerman allegedly drove to the
cornfield; Ward said she told Zimmerman she was not comfortable with the location and
Zimmerman responded that it would all be over soon. (Tr. at 46.) But Ward vacillated on
whether this was an intimidating inference that Zimmerman intended to kill her or an
attempt to comfort her. (Tr. at 46, 99-100.) Under questioning from the prosecution, Ward
described a scene where Zimmerman slashed at her with a knife when she refused his order
to get in the back seat of the van and that he grabbed for her as she escaped out the van
door. (Tr. at 48-50, 116.) Yet when questioned by the defense, she acknowledged that the
van had power locks but Zimmerman did not try to lock her in. (Tr. at 97-98.) She admitted
No. 18AP-75 14
that she could have left the van at any time, that Zimmerman never tried to stop her from
leaving the van, and he made no attempt to chase her when she ran away. (Tr. at 97-98,
107, 111.) She also admitted that she had seen Zimmerman in the neighborhood since the
event and that he had never approached her again. (Tr. at 50, 90.)
{¶ 36} At one juncture, Ward explained that her memory sometimes suffers due to
a brain injury she suffered as a small child. (Tr. at 92.) Ward also offered additional
evidence of impairment, testifying that at the time of the alleged offense she was severely
addicted to heroin and was experimenting with crack cocaine. (Tr. at 59-60, 63-64, 71.)
She admitted that she had resorted to prostitution to pay for her drug habit but that she
generally did not make enough to pay for her drugs, since at the time of the incident, she
was consuming $400 in heroin per day while making only $100 to $200 per day by
prostitution. (Tr. at 34, 83-84.) She acknowledged that heroin dulled her senses, that she
sometimes would lose time while on a "bender," and that she sometimes would become
quite desperate for drugs. (Tr. at 66-69.) She also stated that she had used heroin within
hours of the offense but needed another dose when she encountered Zimmerman and that
her time was wasted when he did not pay her. (Tr. at 95-96, 111-12, 118-20.)
{¶ 37} Because the evidence of kidnapping in this case was not entirely supportive
of the State's allegations, because the knife picture was prejudicial, because Ward's
credibility problems were improperly bolstered by officers who repeated her story and were
permitted to tell the jury that they believed Ward, Zimmerman was denied a fair trial.
Zimmerman's fourth assignment of error is sustained.
D. Third and Sixth Assignments of Error – Moot
{¶ 38} Sustaining Zimmerman's first, second (in part), and fourth assignments of
error necessitates a remand for a new trial. Thus, issues concerning the efficacy of counsel
and questions regarding the manifest weight of the evidence are now moot. Accordingly,
Zimmerman's third and sixth assignments of error are moot and considered no further.
E. Fifth Assignment of Error – Whether Zimmerman's Conviction was
Insufficiently Supported by the Evidence
{¶ 39} Zimmerman's asserts a fifth assignment of error that his conviction for
kidnapping was insufficiently supported by the evidence. Sufficiency is:
"[A] term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the
evidence is legally sufficient to support the jury verdict as a
No. 18AP-75 15
matter of law." … In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is
a question of law.
Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 11, quoting State v. Thompkins,
78 Ohio St.3d 380, 386 (1997); Black's Law Dictionary 1433 (6th Ed.1990). "In reviewing
a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.' " State v. Monroe,
105
Ohio St.3d 384,
2005-Ohio-2282, ¶ 47, quoting State v. Jenks,
61 Ohio St.3d 259 (1991),
paragraph two of the syllabus.
{¶ 40} Although we have sustained assignments of error requiring reversal and
remand for a new trial, we nonetheless address the fifth assignment of error challenging
the sufficiency of the evidence because if it were to be sustained, Zimmerman's criminal
matter in this instance would be over—the charges could not be retried. That is, "the Double
Jeopardy Clause does not preclude retrial of a defendant if the reversal was grounded upon
a finding that the conviction was against the weight of the evidence. However, retrial is
barred if the reversal was based upon a finding that the evidence was legally insufficient to
support the conviction." Thompkins at 387, citing Tibbs v. Florida,
457 U.S. 31, 47 (1982).
Hence, though Zimmerman's other assignments of error are rendered moot, the fifth
assignment of error remains a live controversy that this Court now attempts to resolve.
{¶ 41} As indicted in this case, kidnapping is defined as follows:
(A) No person, by force, threat, or deception … shall remove
another from the place where the other person is found or
restrain the liberty of the other person, for any of the following
purposes:
…
(3) To terrorize, or to inflict serious physical harm on the
victim.
R.C. 2905.01(A)(3). Some of Ward's testimony indicated that Zimmerman induced her to
go with him to his house by promising $300 and drugs. (Tr. at 41-43, 71-72, 91-92.) Yet,
instead he took her to a cornfield where he terrorized her with a knife and attempted to
force her into the back of his van. (Tr. at 42-51.) Although Ward contradicted and
No. 18AP-75 16
equivocated on this version of events in other portions of her testimony (see supra at ¶ 35)
and although there were other general reasons to doubt her credibility (see supra at ¶ 36),
when "viewing the evidence in a light most favorable to the prosecution," we find that a
"rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." Monroe at ¶ 47.
{¶ 42} We overrule Zimmerman's fifth assignment of error.
IV. CONCLUSION
{¶ 43} Because the evidence against Zimmerman was inconsistent and not
expansive, we hold that the jury foreperson's admission that she had seen the excluded
knife picture and relayed what she saw to the other jurors at the outset of deliberations,
prejudiced Zimmerman. Likewise, testimony by officers to vouch for Ward's credibility and
buttress it through hearsay was also prejudicial. Given the questionable and contradictory
nature of the evidence against Zimmerman, such errors may have been individually
sufficient to deny Zimmerman a fair trial and were certainly cumulatively sufficient. We
thus sustain Zimmerman's first, second (in part), and fourth assignments of error and
remand for a new trial. This renders Zimmerman's third and sixth assignments of error
moot. Though the evidence was contradictory and in conflict, there was some evidence
which, if believed, would establish the necessary elements of the offense. Thus, taking the
view of the evidence most favorable to the prosecution, there was sufficient evidence for
Zimmerman's conviction. We therefore overrule Zimmerman's fifth assignment of error
and overrule in part Zimmerman's second assignment of error. The judgment of the
Franklin County Court of Common Pleas is reversed and remanded for a new trial.
Judgment reversed and
remanded for a new trial.
HORTON, JJ., concurs.
DORRIAN, L. conurs in part and dissents in part.
DORRIAN, J., concurring in part and dissenting in part.
{¶ 44} Regarding the fifth assignment of error, I concur with the majority that there
was sufficient evidence to support the jury's verdict and would overrule the fifth assignment
of error.
{¶ 45} Regarding the first assignment of error, I respectfully dissent and would
overrule the first assignment of error. First, the majority decided a question which I believe
No. 18AP-75 17
warranted supplemental briefing from the parties because neither party addressed it in
their briefs, there is no precedent from our court, and there is precedent from the Second
District Court of Appeals, State v. Spurlock, 2d Dist. No. 17954 (Sept. 29, 2000), different
from the precedent the majority now sets. The question is: Does "impropriet[y] of any
officer of the court," in the context of Evid.R. 606(B), require bad faith or willfulness on the
part of the officer of the court? The majority finds, in effect, there is no such requirement.4
In this case, the answer to the question would be determinative of whether the court could
consider the foreperson's testimony without outside evidence or whether the aliunde rule
applies. Second, notwithstanding the trial court's determination that the aliunde rule did
apply to exclude the foreperson's testimony, the court considered the testimony in deciding
to deny appellant's motion for new trial. I would affirm the trial court's finding but for
different reasons. I would affirm because, applying the standard in Crim.R. 33(A) and (E),
I am not convinced that "it affirmatively appears from the record that the defendant was
prejudiced thereby or was prevented from having a fair trial." (Emphasis added.) Civ.R.
33(E)(5).
{¶ 46} There are a lot of unanswered questions from the October 11, 2017 hearing
with the foreperson, which would require much speculation on the court's part regarding
what the other jurors knew and what effect the information had on them. For example,
when the foreperson told the other jurors—how did she describe the knife? Did she say it
did not match the description of the pocket knife the witness gave at trial? Even if the
foreperson did describe the knife, without additional context, the jurors were left to purely
speculate about where the knife came from, who owned it, and where it was found. The
foreperson herself inquired with the attorneys after the trial where the knife came from.
There was no request by appellant to follow-up with these questions or ask for more detail
from the foreperson. Furthermore, although the majority notes the foreperson was
speculating as to whether her fellow jurors believed her, it is also speculation as to whether
the information had any effect on the deliberations by the other jurors. (Majority opinion
at ¶ 25.) Again, there was no request by appellant to follow-up with the other jurors once
4 In paragraph 18, the majority notes, and I agree, there is nothing to suggest in this case that the prosecutor
intentionally or maliciously showed the juror the excluded evidence.
No. 18AP-75 18
the court and counsel learned that the foreperson had shared the information prior to when
the jury began deliberating. Therefore, I would overrule the first assignment of error.
{¶ 47} Regarding the second assignment of error, I respectfully dissent because I
would find the alleged bolstering testimony of the police officer witnesses to not be plain
error, to not be error when taken in context, and to be harmless. First, as the majority
points out, the testimony of the officer that he found Ward to be "honest" was not plain
error. Second, there was an initial objection by appellant regarding the officer testifying to
what Ward told him while he was conducting his investigation. In response, the prosecutor
explained, "It's not offered for the truth of the matter asserted. It's being offered for what
he did next in the investigation." (Tr. Vol. II at 136.) There was no continuing objection,
however, the court stopped the officer mid-way through his testimony and instructed the
officer: "Officer, I'm going to stop you for one minute. Let's -- I definitely don't want to be
talking about exactly what she said. More so, I understand it's not being offered for the
truth, but specific statements are probably inappropriate to come in. Let's talk about in
general terms what happened and then what he did as a result." (Emphasis added.) (Tr.
Vol. II at 137.) There was no request for a curative instruction, and the court did not give a
curative instruction, but the jury heard both the judge and the prosecutor say the testimony
is not offered for the truth. Furthermore, although the majority states the prosecutor
indicated that "the officer's testimony, repeating what Ward told him, was intended to
improve Ward's credibility." (Majority opinion at ¶ 30.) The transcript reveals that the
prosecutor's statement was made in a different context. In response to the defense
objection to the prosecutor asking the officer whether prostitutes report crimes often, the
prosecutor stated, "[i]t's going to go towards her credibility." (Tr. Vol. II at 140.)
Furthermore, the court sustained the defense objection to that question and instructed the
prosecutor to rephrase the question.
Q. Okay. So do prostitutes report crimes to you that often?
A. No, ma'am.
Q. Why not?
A. I think they're afraid to come forward because --
MR. DODGION: Objection.
No. 18AP-75 19
MS. VAN CULIN: It's going to go towards her credibility. She
stated yesterday they don't come forward because nobody
believes her.
MR. DODGION: He's speculating.
MS. VAN CULIN: He's using his experience.
THE COURT: Okay. I think the question in its current form
needs to be rephrased. I will sustain the objection.
Q. (By Ms. Van Culin) Detective, in your three years on the
south side, how many prostitutes did you talk to a day?
A. At least one or two a day.
Q. Okay. On those daily encounters, how often did they report
a crime that occurred to them?
A. Almost never.
(Tr. Vol. II at 140-41.) Finally, I agree with the majority that the police officer witness's
statement that he "believed" Ward when she relayed to him what happened was in error.
However, I note that both Ward and the officer were subject to cross-examination, and on
cross-examination, the officer admitted he had only met Ward one time and he did not run
a warrant check on her. Thus, I would consider the error to be harmless. Therefore, I would
overrule the second assignment of error.
{¶ 48} Regarding the fourth assignment of error, I respectfully dissent because I
would not find there was cumulative error. Therefore, I would overruled the fourth
assignment of error.
{¶ 49} Accordingly, I would consider the third and sixth assignments of error, which
the majority has determined to be moot.
{¶ 50} For these reasons, I respectfully concur in part and dissent in part.
