[Cite as State v. Leach,
2024-Ohio-3145.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-08-012
: OPINION
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:
JONATHAN A. LEACH, :
Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI20230034
Nicholas A. Adkins, Madison County Prosecuting Attorney, and Michael S. Klamo, Chief
Assistant Prosecuting Attorney, for appellee.
Shannon M. Treynor, for appellant.
HENDRICKSON, J.
{¶ 1} Appellant, Jonathan A. Leach, appeals his convictions in the Madison
County Court of Common Pleas for two counts of rape. For the reasons discussed below,
we affirm.
I. Factual and Procedural Background
{¶ 2} On March 10, 2023, Leach was indicted on two counts of rape in violation
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of R.C. 2907.02(A)(1)(b), felonies of the first-degree. The Indictment alleged that the
victim of the rape offenses, "Emma," was a child under ten years of age.1
{¶ 3} Leach had been dating Emma's grandmother, Ana, in the late summer or
early fall of 2019. By January 13, 2023, Leach was living together with Ana in her home.
On January 13, 2023, Emma was spending the night at Ana's home. Around 10:45 p.m.,
Emma, Ana, and Leach were in the living room. Emma was in her pajamas on the couch
where she was going to sleep. Ana left the living room and went to her own bedroom,
leaving Emma and Leach in the living room.
{¶ 4} Ana returned to the living room approximately 30-45 minutes later. Ana
noticed that, although Emma still had her panties on, her pajama bottoms were off and
tangled in her blanket. Ana recalled that Emma's pajama bottoms were on when Ana had
gone to bed earlier. Ana described Emma as "mortified," "shocked," and "very scared."
After getting Emma some cookies, Ana asked what was wrong. Emma told Ana that
Leach had touched her inappropriately. Eventually Ana took Emma to her bedroom, away
from Leach, and again asked what happened. Emma told Ana that Leach touched her
"privacy," licked her "privacy" and had put his "privacy" in her mouth. Emma pointed to
her vagina as her privacy.
{¶ 5} Soon thereafter, Ana and Emma left the home in Ana's car. Ana parked in
a school parking lot and asked Emma again what happened and recorded it with her
phone. Emma told Ana that Leach tried to put his privacy in her mouth.
{¶ 6} DNA specimens were collected from Emma and Leach. Leach's DNA was
discovered on the interior front panel of Emma's panties. Emma's DNA was discovered
on Leach's penis.
1. "Emma" is a pseudonym adopted in this opinion for purposes of privacy and readability. In re D.P.,
2022-Ohio-4553 (12th Dist.), ¶ 1, fn. 1.
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{¶ 7} The matter proceeded to a jury trial, and the jury returned guilty verdicts on
both rape counts. The trial court sentenced Leach to two concurrent prison terms of life
without parole.
{¶ 8} Leach now appeals, raising four assignments of error for our review.
II. Legal Analysis
{¶ 9} Assignment of Error No. 1:
THE COURT ABUSED ITS DISCRETION BY FINDING THAT
THE TESTIMONIAL, OUT OF COURT STATEMENTS BY
THE ACCUSER MET THE CRITERIA FOR AN EXCEPTION
TO HEARSAY.
{¶ 10} In his first assignment of error, Leach argues that the trial court committed
prejudicial error by admitting Ana's testimony concerning two of Emma's out-of-court
statements: (1) After Ana removed Emma to the bedroom, Emma stated that Leach
touched her privacy, licked her privacy, and put his privacy in her mouth; and (2) when
Ana drove with Emma and parked her car in the school parking lot, Ana recorded Emma's
statement that Leach tried to put his privacy in her mouth. The trial court admitted these
statements as present sense impressions.
{¶ 11} Leach asserts that Emma's statements to Ana were testimonial in nature,
and therefore violated the Confrontation Clause of the Sixth Amendment. Leach argues
that Ana purposefully elicited these statements from Emma for later use at trial. Leach
further argues that the statements were not present sense impressions or excited
utterances because of how much time had passed since Emma's encounter with Leach.
The statement in the bedroom was made several minutes after the event, and the
statement in the parking lot was made about one hour after the event. Leach argues that
Ana's decision to record Emma's statement in the parking lot indicates her intent to
prepare evidence for later use at trial. We disagree.
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{¶ 12} "Generally, a trial court's ruling as to the admissibility of evidence will not be
reversed absent an abuse of discretion." State v. Knecht, 2015-Ohio-4316, ¶ 20 (12th
Dist.). However, a claim that a criminal defendant's rights have been violated under the
Confrontation Clause is reviewed de novo.
Id.
{¶ 13} The Confrontation Clause, as found in the Sixth Amendment to the United
States Constitution, preserves the right of a criminal defendant "to be confronted with the
witnesses against him." To that end, the Confrontation Clause bars the admission of
"testimonial hearsay" unless the declarant is unavailable and the accused had a prior
opportunity to cross-examine the declarant. State v. Primo, 2005-Ohio-3903, ¶ 12 (12th
Dist.), citing Crawford v. Washington,
541 U.S. 36, 68 (2004). The key issue, therefore,
is what constitutes a testimonial statement for "'[i]t is the testimonial character of the
statement that separates it from other hearsay that, while subject to traditional limitations
upon hearsay evidence, is not subject to the Confrontation Clause.'" State v. Hood, 2012-
Ohio-6208, ¶ 33, quoting Davis v. Washington,
547 U.S. 813, 821 (2006).
{¶ 14} The Supreme Court of the United States has explained that statements are
nontestimonial when "made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency." Davis at 822. Statements are testimonial
"when the circumstances objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution."
Id. Additionally, a formal station-house
interrogation is more likely to provoke testimonial statements, while less formal
questioning is less likely to reflect a primary purpose aimed at obtaining testimonial
evidence against the accused. Ohio v. Clark,
576 U.S. 237, 245 (2015).
{¶ 15} In the present case, when Ana asked Emma to tell her what had happened,
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the two of them were faced with the ongoing emergency of Emma having recently been
raped, with the assailant still in Ana's home. Ana elicited Emma's statements not to create
evidence for use at trial, but to get a sense of what had happened to her granddaughter
and what to do next. Ana testified that her primary concern at that time was "To get her
out of there, get her to be safe." Ana's conduct afterwards demonstrates this as she went
to two different police agencies and then took Ana to the hospital for a medical exam.
{¶ 16} Although Ana chose to record Emma's statement in the parking lot, there is
no indication that she did so with the intent to prepare evidence for trial, and she did not
tell Emma that her statements were being recorded for any such purpose. Ana testified
that, at that moment, her mind was racing through thoughts about her previous divorce,
having a live-in boyfriend for the first time, and her desire to not subject her children to
any harm. There was no design behind her choice to record Emma. "Statements made
to someone who is not principally charged with uncovering and prosecuting criminal
behavior are significantly less likely to be testimonial than statements given to law
enforcement officers." Clark, 576 U.S. at 249. Further, "Statements by very young
children will rarely, if ever, implicate the Confrontation Clause," as it is extremely unlikely
a child victim would intend her statements to be a substitute for trial testimony.
Id. at 247-
248. Therefore, we find that Emma's statements to Ana were not testimonial in nature,
and admitting them at trial did not violate the Confrontation Clause.
{¶ 17} Moreover, Evid.R. 803(1) permits the admission of a "present sense
impression," which is defined as "[a] statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or immediately
thereafter unless circumstances indicate lack of trustworthiness." Similarly, Evid.R.
803(2) also permits the admission of an excited utterance. An excited utterance is "[a]
statement relating to a startling event or condition made while the declarant was under
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the stress of excitement caused by the event or condition." There is no per se amount of
time after which a statement can no longer be considered to be an excited utterance.
State v. Sims, 2009-Ohio-550, ¶ 14 (12th Dist.). Rather, in analyzing whether a statement
is an excited utterance, "'[t]he controlling factor is whether the declaration was made
under such circumstances as would reasonably show that it resulted from impulse rather
than reason and reflection.'" State v. Nixon,
2012-Ohio-1292, ¶ 13 (12th Dist.), quoting
State v. Humphries,
79 Ohio App.3d 589, 598 (12th Dist. 1992).
{¶ 18} Ana testified that Emma looked "mortified" and "very scared and shocked"
when she discovered Emma after the rape. Emma's statement in the bedroom was made
only minutes later, while her assailant was still in the house. Emma's statement in the
vehicle was made only about one hour after the incident, during Ana's efforts to separate
Emma from Leach as the circumstances permitted. The mere fact that a victim's
statement was made even several hours after the event does not automatically disqualify
it as an excited utterance. State v. Baker, 137 Ohio App.3d 628, 649 (12th Dist. 2000).
When the victim is still under a "nervous state of excitement," the victim's statement may
qualify as an excited utterance. Id.; see also State v. Chappell,
97 Ohio App.3d 515, 591
(8th Dist. 1994) (finding a nine-year-old's statement to her grandmother qualified as an
excited utterance even though it was made 32 hours after being raped). Additionally,
Emma's statement in the car was consistent with her statement in the bedroom, lending
it further credibility. Both of Emma's statements were clearly admissible as excited
utterances.
{¶ 19} Leach's first assignment of error is overruled.
{¶ 20} Assignment of Error No. 2:
THE COURT COMMITTED REVERSIBLE ERROR BY NOT
FINDING PREJUDICE AS A RESULT OF THE
PROSECUTION'S DISCOVERY VIOLATION IN ITS
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FAILURE TO DISCLOSE EXCULPATORY EVIDENCE.
{¶ 21} In his second assignment of error, Leach argues he suffered prejudice when
the state failed to disclose a voicemail recording until the middle of trial, when the state
realized it had not been turned over.
{¶ 22} Crim.R. 16 governs discovery in criminal prosecutions. State v. Wilson,
2013-Ohio-3877, ¶ 14 (12th Dist.). "Prosecutorial violations of Crim.R. 16 are reversible
only when there is a showing that (1) the prosecution's failure to disclose was a willful
violation of the rule, (2) foreknowledge of the information would have benefited the
accused in the preparation of his defense, and (3) the accused suffered some prejudicial
effect." State v. Joseph,
73 Ohio St.3d 450, 458 (1995). Sanctions for a Crim.R. 16
discovery violation are within the discretion of the trial court. State v. Palmer, 2014-Ohio-
5491, ¶ 39 (12th Dist.). When deciding on a sanction, the trial court must impose the
least severe sanction that is consistent with the purpose of the rules of discovery.
Id.
{¶ 23} On January 19, 2023, the police had received two voicemails from Ana and
from Emma's mother, advising them that Emma had recanted her accusations against
Leach. The police failed to preserve these voicemail recordings; however, the state
provided the content of these voicemails to the defense in discovery. At trial, Leach
moved to dismiss the charges due to the state's failure to preserve these voicemails. On
July 25, 2023, during the discussion of the defense's motion to dismiss, the prosecutor
disclosed that there was a third voicemail left by Emma's mother for the state's victim's
advocate on February 22, 2023, advising the victim's advocate of Emma's recantation.
The prosecutor conceded that he knew of this voicemail more or less immediately and
had neglected to provide it to the defense in discovery. The third voicemail was then
provided to the defense and played for the trial court.
{¶ 24} The trial court ultimately overruled Leach's motion to dismiss, reasoning that
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the defense had been informed of the content of the first two voicemails and was able to
use the information about Emma's recantation in cross-examination. Further, the trial
court found that the specific recordings were not material to the defense, and the third
voicemail was cumulative to the other voicemails. The defense learned of this third
voicemail prior to the testimony of Emma's mother and Ana. Thus, this information was
available to use on cross-examination of those witnesses. Nevertheless, the defense did
not move for a continuance or an adjournment to investigate the third voicemail or
consider its significance to the defense.
{¶ 25} On appeal, the defense asserts that the third voicemail was important for
establishing a timeline and the time period over which Emma maintained her recantation
before retracting it. However, the dates of the voicemails were apparent and constructing
the timeline was not a complicated undertaking. There is no indication that the state's
failure to provide the third voicemail in discovery was willful, and the third voicemail was
otherwise cumulative to the first two voicemails. Therefore, the defense did not suffer
prejudice from the late disclosure.
{¶ 26} Leach's second assignment of error is overruled.
{¶ 27} Assignment of Error No. 3:
THE COURT COMMITTED PLAIN ERROR BY NOT
ISSUING A LIMITING INSTRUCTION FOLLOWING A
SUSTAINED HEARSAY OBJECTION THAT THE ACCUSER
HAD RETRACTED HER RETRACTION.
{¶ 28} In his third assignment of error, Leach argues that the trial court erred by
not issuing a limiting instruction after it sustained a hearsay objection to Ana's testimony
that Emma had retracted her recantation of the rape accusation against Leach. Leach
did not request such an instruction; therefore we review for plain error. "Plain error does
not exist unless the error is obvious and but for the error, the outcome of the trial would
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have been different." State v. Warnock, 2024-Ohio-382, ¶ 32 (12th Dist.). Emma's initial
disclosures of being raped, made under the stress of the events that had just occurred,
combined with the DNA evidence, established Leach's guilt beyond a reasonable doubt.
Because of the overwhelming evidence supporting the convictions, a limiting instruction
would not have changed the outcome of the trial.
{¶ 29} Leach's third assignment of error is overruled.
{¶ 30} Assignment of Error No. 4:
THE COURT ABUSED ITS DISCRETION BY DISALLOWING
EVIDENCE OF PRIOR SEXUAL ACTS BY THE ACCUSER
WHICH WERE INTENDED TO DEMONSTRATE THE
ACCUSER'S PRIOR KNOWLEDGE OF THOSE SAME
SEXUAL ACTS.
{¶ 31} In his fourth assignment of error, Leach argues that the trial court should
have admitted evidence that Emma had witnessed cunnilingus and fellatio while watching
a sexually explicit program on Netflix. Leach argues that this evidence would have
demonstrated Emma's prior knowledge of the sexual acts she accused Leach of
committing against her. We disagree.
{¶ 32} R.C. 2907.02(E) and (F) permit the trial court to determine the admissibility
of evidence of any sexual activity of the victim after a hearing on the matter in chambers
prior to, or for good cause shown, during trial. When evidence is offered to show a child's
knowledge of sexual acts, its relevance depends on whether the prior sexual acts closely
resemble the acts in question. State v. Young, 2009-Ohio-5354, ¶ 33 (8th Dist.). Where
allegations of prior sexual acts are unsubstantiated or where the prior sexual acts are
dissimilar to the allegations made against the defendant, such evidence is not probative
or relevant. See Id. at ¶ 36-37.
{¶ 33} Emma's mother testified in an in camera hearing that she noticed on her
Netflix account that someone had begun watching a sexually explicit program. She later
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caught Emma watching the program on one occasion, and immediately stopped her. It
could not be established how much of the program Emma had actually watched. Emma's
mother separately viewed the first two episodes of the show, and testified that it depicted
people naked on top of one another, but did not depict cunnilingus or fellatio.
{¶ 34} The trial court did not abuse its discretion when it disallowed this evidence
because it could only be speculated as to how much of the program Emma had watched,
and there was no indication that Emma witnessed cunnilingus or fellatio, therefore the
evidence was not probative or relevant.
{¶ 35} Leach's fourth assignment of error is overruled.
{¶ 36} Assignment of Error No. 5:
THE PROSECUTION ENGAGED IN MISCONDUCT
DURING SENTENCING WHEN IT ARGUED THAT THE
DEFENDANT HAD ENGAGED IN PRIOR SEX ACTS WITH
THE MINOR, BASED SOLELY ON RUMOR AND
SPECULATION OF THE MINOR'S FAMILY.
{¶ 37} During the sentencing hearing, the prosecutor advised the trial court that
there was evidence that Leach had sexually abused Emma before based upon a phone
conversation between Ana and Emma's Mother on the night of the incident. Emma's
mother asked Emma if this had happened before, and Emma said yes. Leach did not
object to these remarks. On appeal, Leach argues that these remarks were mere
speculation and permitting them was plain error. Leach asserts these remarks led the
trial court to impose a prison term of life without parole as opposed to life with parole
eligibility after 15 years.
{¶ 38} Leach does not establish how these remarks are prosecutorial misconduct.
The rules of evidence, including the rules on hearsay, do not apply to sentencing
hearings. State v. Bene, 2006-Ohio-3628, ¶ 21 (12th Dist.). A trial court may properly
rely on a broad range of information at sentencing. State v. Clemons,
2014-Ohio-4248,
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¶ 7 (2d Dist.). Unindicted acts can be considered in sentencing without resulting in error
when they are not the sole basis for the sentence. Id. In determining the sentence, the
trial court specifically considered the seriousness of the offense and injury caused to
Emma, noted that Leach's relationship with Emma and her grandmother facilitated the
offense, and noted that it could not determine whether Leach had any genuine remorse.
There is no indication that the court solely relied on the prosecutor's comment. We do
not find the prosecutor engaged in misconduct during sentencing.
{¶ 39} Leach's fifth assignment of error is overruled.
III. Conclusion
{¶ 40} For the reasons outlined above and finding no merit to any of Leach's five
assignments of error, we affirm Leach's convictions for two counts of rape.
{¶ 41} Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.
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