[Cite as State v. Moore,
2025-Ohio-712.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-23-83
PLAINTIFF-APPELLEE,
v.
CECIL C. MOORE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
General Division
Trial Court No. 21CR0354
Judgment Affirmed
Date of Decision: March 3, 2025
APPEARANCES:
Eric E. Willison for Appellant
Allison M. Kesler for Appellee
Case No. 9-23-83
MILLER, J.
{¶1} Defendant-Appellant, Cecil Moore (“Moore”), appeals from the
November 28, 2023 judgment of the Marion County Court of Common Pleas.
Following a jury trial where he was found guilty of fifteen charges consisting of
rape, sexual battery, and gross sexual imposition, the trial court merged the rape and
sexual battery charges and sentenced him to a total of 62-1/2 years in prison. In his
ten assignments of error, Moore challenges the trial court’s sentence and a variety
of its rulings during trial. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Indictment and Relationship Between Moore and the Victim
{¶2} On August 18, 2021, Moore was indicted on 15 felony counts, the first
five for rape in violation of R.C. 2907.02(A)(2), the second five for sexual battery
in violation of R.C. 2907.03(A)(5), and the last five for gross sexual imposition
(“GSI”) in violation of R.C. 2907.05(A)(1). The indictment alleged the offenses
took place during five time periods, and one count for each offense was charged in
relation to each time period as follows:
• Counts 1, 6, and 11 – On or about June 1, 2014 through September
20, 2014.
• Counts 2, 7, and 12 – On or about March 15, 2015 through June 20,
2015.
• Counts 3, 8, and 13 – On or about June 21, 2015 through December
31, 2015.
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• Counts 4, 9, and 14 – On or about January 1, 2016 through October
11, 2016.
• Counts 5, 10, and 15 – On or about October 12, 2016.
The alleged victim of the offenses was T.G., who was born in February 2001, was
13 years old at the start of the first time period in the indictment, and was 15 years
old during the last time period.
{¶3} Around 2004 or 2005, when T.G. was approximately four years old,
T.G.’s mother and Moore started a romantic relationship, which included the birth
of a child together and continued through the time periods set forth in the indictment.
Starting when she was 10 or 11 years old, T.G. lived in Marion with her mother, her
two younger half-sisters, and Moore. According to T.G., she had a “typical father-
daughter relationship” with Moore while growing up, she would call him “dad,” and
he would be a parent to her—including helping her with school work, taking her to
school events, teaching her how to ride a bike, and disciplining her and her half-
sisters. (Trial Tr. at 474-475). With her actual father already out of her life, Moore
“was the only real father figure” she had, apart from her grandfather. (Id.). T.G.
explained that Moore was the general decision maker in the house, and he was very
controlling—including not allowing her to have friends come to the house and not
allowing her to participate in any extracurricular activities.
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B. Sexual Activity Between Moore and the Victim
{¶4} T.G. testified that Moore had sex with her “a lot”—up to eight times a
week—between June 1, 2014 and October 12, 2016.1 (Trial Tr. at 544, 576).
However, the evidence focused on five separate incidents, each of which
corresponded with one of the five time periods set forth in the indictment and, thus,
the indictment included one count of rape, sexual battery, and GSI for each incident.
T.G. testified about all five incidents during trial, as follows.
{¶5} The first incident involved the first time Moore had sex with T.G. This
took place during the summer before she started the eighth grade. After T.G.’s
mother left the house, Moore came into T.G.’s room and shut the door. He pulled
a condom out of his pocket, hovered over her, told her it would be okay, and
penetrated her vagina with his penis. T.G. told him to stop, which he eventually
did.
{¶6} The second incident took place on the day T.G. returned from her
eighth-grade trip to Washington, D.C. Moore picked her up at school in a van and
parked in a driveway. He told T.G. to bend over the back seat of the van, pulled her
pants down, and proceeded to have anal sex, during which he penetrated her. T.G.
felt terrible pain and told him to stop, but Moore did not.
1
Evidence at trial included records showing purchases of Plan B, which T.G. testified was used as one method
of birth control.
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{¶7} The third incident involved the first time Moore used sex toys with T.G.
during sexual encounters. Moore laid T.G. on the bed in his bedroom and tried to
insert a dildo into her vagina. He was unable to get the dildo inside of her because
it was very large. T.G. testified that Moore “spread [her] open” with his fingers, but
the dildo did not get past her “outer vaginal lips.” (Trial Tr. at 497, 504). The next
day, Moore told T.G. to lay on her stomach on the bed in his bedroom. He then
inserted anal beads “all the way” inside of T.G. and, after a minute or two, he pulled
them out very quickly—resulting in T.G. suffering a sharp pain. (Id. at 503).
{¶8} The fourth incident occurred after T.G. saw that one of Moore’s old
phones had a Google search for the word “porn.” She showed Moore what was on
the phone, Moore yelled at her and accused her of doing it, and they got into an
argument. After the argument, Moore took T.G. to his bedroom, pulled up
pornography on his phone, and stood behind her to see if she was aroused by what
was on the phone. Moore held the phone in front of T.G. with one hand while he
reached around her with his other hand, placing his hand on her vagina to see if she
was aroused while watching the porn on his phone. Although he was touching her
vagina with his hand, T.G. could not remember his fingers going inside it. Moore
subsequently put the phone away and had vaginal sex with her.
{¶9} The fifth incident involved the last time Moore had sex with T.G. They
had sex in Moore’s bedroom and then Moore left to go to a casino. T.G.’s mother
arrived home about 30 minutes later and, without advanced notice to T.G. or Moore,
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T.G.’s mother decided to leave Moore and they all stopped living with him. At the
time, T.G.’s mother was unaware of any of the sexual activity that had occurred
between Moore and T.G., according to T.G. and her mother.
{¶10} When asked whether Moore would touch her prior having sexual
intercourse, T.G. said “yes” and explained: “He would kiss me, and he would touch
my breasts, and put his hand in my pants and touch my vagina.” (Trial Tr. at 480).
According to T.G., there was never a time when she wanted to have sex with Moore.
She testified that Moore had warned her that, if she ever told anybody, then her
mother would hate her and disown her; Moore would go to jail for the rest of his
life, where he would kill himself; her two half-sisters would hate her for it; and she
would be disliked and disowned by her family. At the time, T.G. felt that she was
protecting her half-sisters because she knew, if the sexual activity was happening to
her, then it was not happening to them.
{¶11} T.G. did not tell anyone about the abuse until she was an adult and
then only after her young stepson tragically died in August 2020. When her stepson
died, it changed T.G.’s outlook on life and she told her mother about the abuse. T.G.
explained that she had kept the abuse a secret until that time, and even denied any
abuse (including telling one of her half-sisters she had not been raped by Moore and
telling a doctor she had not been sexually abused), because part of her felt no one
would believe her and the other part of her believed what Moore said about her
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mother being angry and her half-sisters disowning her. The police eventually
interviewed T.G., which led to the indictment against Moore.
C. Verdicts and Sentencing
{¶12} During the trial, the jury heard testimony from the following
witnesses: Dana Jagger of the Marion City Police Department (“Officer Jagger”),
who conducted an investigation in this case; T.G.’s mother; one of T.G.’s half-
sisters; Samuel Walter (“Special Agent Walter”), a former sexual assault detective
for the Marion Police Department who interviewed Moore; and T.G. herself. The
State called all of these witnesses; Moore did not call any witnesses or present any
evidence after the State rested its case.
{¶13} The jury found Moore guilty of all 15 counts.2 At sentencing, the trial
court found that each rape count merged with the sexual battery count from the same
time period (e.g., Count 1 merged with Count 6). It then sentenced Moore to a term
of 11 years in prison for each of the rape convictions and a term of 18 months in
prison for each of the GSI convictions. The trial court found that the sentences
should be served consecutively, for an aggregate prison sentence of 62-1/2 years.
This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶14} Moore raises ten assignments of error for our review:
2
We note that there was a first trial that resulted in a hung jury. Unless otherwise indicated, this opinion and
all references to testimony and evidence relate only to the second trial.
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First Assignment of Error
The trial court erred when it convicted Appellant on all 15 counts in the
absence of sufficient evidence of force or lack [sic] of force.
Second Assignment of Error
The trial court erred when it convicted Appellant for sexual battery
when the Third Amended Bill of Particulars alleged that the basis for
the crime was that Appellant was the stepparent of the alleged victim.
Third Assignment of Error
The trial court erred when it violated the Appellant’s right to
confrontation when it improperly restricted the cross examination of
witnesses against Appellant.
Fourth Assignment of Error
The trial court erred when it allowed expert testimony regarding
grooming and delayed disclosure when no experts were disclosed,
qualified, nor any expert reports filed before trial.
Fifth Assignment of Error
The trial court erred when it allowed in evidence of prior bad acts which
the State of Ohio did not request permission for prior to trial.
Sixth Assignment of Error
The trial court erred when it did not permit the Appellant to develop
evidence on the slipshod nature of the investigation conducted by the
State of Ohio.
Seventh Assignment of Error
The trial court erred when it did not merge the claims for gross sexual
imposition into the convictions for rape and sexual battery.
Eighth Assignment of Error
The trial court erred when it convicted the Appellant for gross sexual
imposition on Counts 10-15 of the Third Amended Bill of Particulars.
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Ninth Assignment of Error
The trial court erred when it did not allow cross examination into the
alleged victim’s bias and motivation to misrepresent.
Tenth Assignment of Error
The trial court erred when it did not allow the jury to see the full video
of the Appellant’s interview with Agent Walter.
III. DISCUSSION
{¶15} We address the assignments of error out of order in a manner that
facilitates our analysis.
A. First Assignment of Error
{¶16} In the first assignment of error, Moore argues the trial court erred when
it “convicted [him] on all 15 counts” because “it is clear that the element of force or
threat of force that needs to be present in rape, sexual battery, and gross sexual
imposition, is not present.” (Appellant’s Brief at 3, 12). He contends the State
failed to present sufficient evidence of force or threat of force for the offenses.
1. Standard of Review
{¶17} Whether the evidence is legally sufficient to sustain a verdict is a
question of law. State v. Dent, 2020-Ohio-6670, ¶ 15. Thus, our review is de novo.
Id. A sufficiency challenge disputes whether a party met its burden of production
at trial. State v. Messenger,
2022-Ohio-4562, ¶ 26. “In a sufficiency-of-the-
evidence inquiry, the question is whether the evidence presented, when viewed in a
light most favorable to the prosecution, would allow any rational trier of fact to find
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the essential elements of the crime beyond a reasonable doubt.” Dent at ¶ 15, citing
State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Thus, “[i]n
assessing the sufficiency of the evidence, we do not resolve evidentiary conflicts or
assess the credibility of witnesses.” State v. Jackson,
2023-Ohio-2193, ¶ 26 (3d
Dist.); see also
Jenks at 279.
2. Applicable Law
{¶18} Counts 1 through 5 charged Moore with rape in violation of R.C.
2907.02(A)(2), which provided, “No person shall engage in sexual conduct with
another when the offender purposely compels the other person to submit by force
or threat of force.” Counts 6 through 10 charged Moore with sexual battery in
violation of R.C. 2907.03(A)(5), which provided, “No person shall engage in sexual
conduct with another, not the spouse of the offender, when . . . [t]he offender is the
other person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or
person in loco parentis of the other person.” As used in both of these statutes, the
term “sexual conduct” was defined as “vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons regardless of
sex; and, without privilege to do so, the insertion, however slight, of any part of the
body or any instrument, apparatus, or other object into the vaginal or anal opening
of another. Penetration, however slight, is sufficient to complete vaginal or anal
intercourse.” R.C. 2907.01(A).
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{¶19} Counts 11 through 15 charged Moore with GSI in violation of R.C.
2907.05(A)(1), which provided, “No person shall have sexual contact with another,
not the spouse of the offender . . . when . . . [t]he offender purposely compels the
other person . . . to submit by force or threat of force.” The term “sexual contact”
was defined as “any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a
breast, for the purpose of sexually arousing or gratifying either person.” R.C.
2907.01(B).
{¶20} Focusing on force, the rape and GSI charges here all involved whether
the offender purposely compelled the other person to submit by force or threat of
force. Notably, this court has analyzed the “force or threat of force” element for
both crimes similarly, at least where the defendant is in a position of authority over
the victim. E.g., State v. Catlett, 2024-Ohio-386, ¶ 10 (3d Dist.) (explaining that
this court applies the Supreme Court of Ohio’s discussion of the force-or-threat-of-
force element under the rape statute to the GSI statute); State v. Heft, 2009-Ohio-
5908, ¶ 87-90 (3d Dist.) (relying on principles from caselaw involving forcible rape
in assessing a conviction for GSI, where the victim was defendant’s stepdaughter
and father figure). Also notable is that the Supreme Court of Ohio’s caselaw has
distinguished between instances when these crimes are committed against children
and when they are committed against adults. Compare State v. Eskridge,
38 Ohio
St.3d 56 (1988) (victim was defendant’s four-year-old daughter) with State v.
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Schaim, 65 Ohio St.3d 51, 54-55,
1992-Ohio-31 (1992) (victim was defendant’s
twenty-year-old adopted daughter; distinguishing Eskridge).
{¶21} The term “force” is defined as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” R.C.
2901.01(A)(1). The force necessary depends upon the age, size, and strength of the
parties and their relation to each other. Eskridge at paragraph one of the syllabus.
When the alleged victim is a minor, the force does not need to be overt and
physically brutal; it can be subtle and psychological. Id. at 58; State v. Bradshaw,
2023-Ohio-1244, ¶ 2, 51, 57 (3d Dist.) (involving rapes of niece when defendant’s
niece was 14 to 16 years old). As long as it can be shown that the minor victim’s
will was overcome by fear or duress, the forcible element of rape under R.C.
2907.02(A)(2) or GSI under R.C. 2907.05(A)(1) can be established.
Eskridge at 59
(upholding finding that the four-year-old victim’s will was overcome when the child
was told to do something by an important authority figure and commanded not to
tell anyone about it; thus, the forcible element was established);
Bradshaw at ¶ 51;
Catlett at ¶ 10 (affirming GSI conviction; clarifying that the key inquiry in
determining whether the State presented sufficient evidence of the force element
was whether, based on the totality of the circumstances, the victim’s will was
overcome by fear or duress). Moreover, both the rape and the GSI statutes
specifically clarify that “[a] victim need not prove physical resistance to the
offender.” R.C. 2907.02(C) and R.C. 2907.05(D).
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3. Analysis
{¶22} Given that Moore challenges only the sufficiency of the evidence of
force or threat of force, we focus solely on whether the State presented sufficient
evidence to prove that element. See State v. Burke, 2020-Ohio-4781, ¶ 17 (3d Dist.).
As an initial matter, even setting aside the fact Moore was not convicted of the
sexual battery counts because they merged with the rape counts, neither force nor
threat of force is an element for the charged sexual battery counts, i.e., Counts 6
through 10. See R.C. 2907.03(A)(5).3 Therefore, Moore’s argument does not apply
to those counts and necessarily fails with respect to them.
{¶23} Next, despite the assignment of error challenging all fifteen counts,
Moore concedes in his brief that there was sufficient evidence of force or threat of
force for the offenses charged in Counts 1, 2, 11, and 12 (i.e., the first two incidents).
Regardless, the evidence presented, when viewed in a light most favorable to the
prosecution, would allow a rational trier of fact to find the element of “force or threat
of force” beyond a reasonable doubt for all of the rape and GSI counts. T.G. testified
there was never a time when she wanted to have sex with Moore. She further
testified that Moore had warned her that, if she ever told anyone about the sexual
activity between them, then her mother would hate her and disown her; Moore
would go to jail for the rest of his life, where he would kill himself; her two half-
3
We also note the sexual battery charges against Moore were not brought under subsection (A)(1), which
involves coercion. R.C. 2907.03(A)(1).
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Case No. 9-23-83
sisters would hate her for it; and she would be disliked and disowned by her family.
T.G. also testified that—for years—she did not tell anyone about the abuse because
part of her believed what Moore said about her mother being angry and her half-
sisters disowning her. Such evidence, at least when viewed in a light most favorable
to the State, showed that Moore overcame T.G.’s will by fear or duress while T.G.
was a minor and Moore served in a parental role and position of authority. See
Eskridge, 38 Ohio St.3d at 58.
{¶24} Moore’s first assignment of error is overruled.
B. Eighth Assignment of Error
{¶25} In the eighth assignment of error, Moore argues there was insufficient
evidence to prove the GSI in Counts 14 and 15. We apply the same standard of
review as in the first assignment of error.
{¶26} First addressing Count 14, Moore says that T.G. testified Moore’s
“purpose in putting his hand on her vagina was to assure himself (because of his
racist beliefs) that she was not sexually aroused by pornography” involving Black
people. (Appellant’s Brief at 33). He asserts there was no other testimony regarding
his purpose for doing so and, “since there was no evidence that [T.G.] was aroused
or that [Moore] sought to arouse her or himself, there is insufficient evidence to
support” the GSI conviction. (Id.). Thus, Moore attacks the offense’s requirement
that the sexual contact must be touching of an erogenous zone of another “for the
purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B).
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{¶27} T.G. testified as follows: Moore “pulled up porn on his phone and had
me lay down, and he was behind me” and “he wanted to see if I was aroused by
what was on his phone, which was a black couple having sex.” (Trial Tr. at 507).
He held the phone in front of her with one hand while touching her vagina with his
other “to see if [T.G.] would get wet in any way, aroused while watching the porn
on his phone.” (Id. at 507-508). They had sex after that. (Id.). We find that a
rational trier of fact, when viewing the evidence presented in a light most favorable
to the prosecution, could find beyond a reasonable doubt that Moore touched T.G.’s
vagina at least for the purpose of sexually arousing or gratifying himself as
evidenced by the fact he had sex with T.G. immediately after watching the
pornographic video and touching her vagina.
{¶28} Next, regarding Count 15, Moore says “there was simply no evidence
of sexual contact with [T.G.] apart from the alleged rape.” (Appellant’s Brief at
33). However, when asked whether Moore would touch her prior to having sexual
intercourse, T.G. said “yes” and explained: “He would kiss me, and he would touch
my breasts, and put his hand in my pants and touch my vagina.” (Trial Tr. at 480).
According to T.G., there was never a time when she wanted to have sex with Moore.
We find that a rational trier of fact, when viewing the evidence presented in a light
most favorable to the prosecution, could find beyond a reasonable doubt that Moore
made sexual contact with T.G. prior to the rape.
{¶29} Moore’s eighth assignment of error is overruled.
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C. Seventh Assignment of Error
{¶30} In the seventh assignment of error, Moore argues that the trial court
erred in not merging the rape and GSI convictions during sentencing (like the trial
court had for the rape and sexual battery offenses).
1. Applicable Law
{¶31} “We review de novo whether certain offenses should be merged as
allied offenses under R.C. 2941.25.” State v. Bailey, 2022-Ohio-4407, ¶ 6. “Merger
is a sentencing question, not an additional burden of proof shouldered by the state
at trial.” State v. Washington,
2013-Ohio-4982, ¶ 18. The defendant bears the
burden of establishing he or she is entitled to the protection provided by R.C.
2941.25 against multiple punishments for a single criminal act.
Id.
{¶32} When a defendant’s conduct supports multiple offenses, courts apply
the allied offenses analysis in R.C. 2941.25 to determine if the offenses merge or if
the defendant may be convicted of separate offenses. State v. Cass, 2024-Ohio-
2614, ¶ 19 (3d Dist.). The statute states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of
all of them.
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R.C. 2941.25. The Supreme Court of Ohio clarified certain aspects of this statute
in State v. Ruff, 2015-Ohio-995. The court’s syllabus held:
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate three
separate factors—the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense
is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of
the following is true: (1) the conduct constitutes offenses of dissimilar
import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were committed
with separate animus.
Id. at syllabus.
2. Analysis
{¶33} Contrary to Moore’s suggestion, he has not met his burden of
establishing that he is entitled to the protection provided by R.C. 2941.25 against
multiple punishments for the pairs of rape and GSI offenses committed during each
of the five time periods. In other words, merger was not required for those offenses.
Evidence supports that the offenses were all committed separately. See State v.
Potts, 2016-Ohio-5555, ¶ 98 (3d Dist.) (a court may end its analysis upon an
affirmative response to any of the three factors—import, conduct, or animus).
{¶34} Our analysis within the eighth assignment of error concerning Count
15 is also applicable here. Namely, T.G.’s testimony supported that Moore touched
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at least one of her erogenous zones during each incident prior to having sexual
intercourse. See State v. Schroeder, 2019-Ohio-4136, ¶ 96 (4th Dist.) (GSI and rape
convictions did not need to merge when evidence indicated defendant touched the
victim’s breasts and inserted fingers into victim’s vagina, despite their close
proximity in time; defendant’s conduct constituted two separate and distinct acts);
State v. Foust,
2004-Ohio-7006, ¶ 145 (acts constituting GSI and rape were separate
from each other where victim testified that defendant touched her breasts and put
his fingers on her vagina and the evidence did not show he “committed these acts
while he was raping” the victim). Furthermore, T.G.’s testimony regarding Moore
spreading her vagina open with his fingers and using the dildo the day before he
inserted the anal beads provides additional support for separate instances of GSI and
rape for Counts 3 and 13. Additionally, as we previously indicated, T.G.’s
testimony regarding Moore touching her vagina while displaying pornography on
his phone in front of her, before having sexual intercourse, provides additional
support for separate instances of GSI and rape for Counts 4 and 14. Therefore, the
trial court did not err in deciding not to merge the rape and GSI convictions.
{¶35} Moore’s seventh assignment of error is overruled.
D. Third and Sixth Assignments of Error
{¶36} In the third assignment of error, Moore contends the trial court
violated his right to confrontation when it restricted cross-examination of witnesses
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Case No. 9-23-83
against him.4 More specifically, the assignment of error focuses on instances where
the trial court sustained the State’s hearsay objections during Moore’s cross-
examination of various witnesses. The first category involves a series of questions
relating to a police report and to eliciting testimony based on statements in the police
report. The second category relates to whether it was permissible for counsel to
introduce hearsay statements contained within a cross-examination question.
Ultimately, we find Moore’s right to confrontation was not violated by the trial court
sustaining the State’s various objections at issue, or any error was harmless.
{¶37} Moore’s sixth assignment of error is closely related to his third
assignment of error. He asserts that “the trial court erred when it did not permit
[him] to develop evidence on the slipshod nature of the investigation conducted by
the State of Ohio.” (Appellant’s Brief at 3). Moore cites much of the same
testimony in support of both assignments of error. In many respects Moore’s
argument is simply a rehashing of one part of his third assignment of error. Thus,
we address both assignments of error together.
4
The assignment of error does not involve the typical Confrontation Clause claim, where the witness does
not testify and is unavailable such that the defendant is never confronted with the witness. See U.S. Const.,
amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . .”); State v. Leonard, 2004-Ohio-6235, ¶ 110 (“[t]he admission of hearsay does not
violate the Confrontation Clause if the declarant . . . testifies at trial”). All of Moore’s arguments are based
on statements by persons either who testified at trial or for whom there was no reason to believe they could
not have testified at trial (i.e., no showing they were unavailable to testify).
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1. Standard of Review
{¶38} “The scope of cross-examination lies within the sound discretion of
the trial court, viewed in relation to the particular facts of the case.” State v.
McAlpin, 2022-Ohio-1567, ¶ 151; see also State v. Robb,
88 Ohio St.3d 59, 71,
2000-Ohio-275 (2000). Additionally, “[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.” State v. Sage,
31 Ohio
St.3d 173 (1987), paragraph two of the syllabus; State v. Campbell,
2014-Ohio-493,
¶ 41- 45 (8th Dist.) (trial court did not abuse its discretion in sustaining prosecutor’s
hearsay objection to testimony concerning contents of police report). Thus, we
review the arguments in this assignment of error for an abuse of discretion. A trial
court abuses its discretion when its conduct is unreasonable, arbitrary, or
unconscionable. State v. Hill,
2022-Ohio-4544, ¶ 9.
2. Applicable Law
{¶39} “A defendant’s right to cross-examine the state’s witnesses is
guaranteed by both the Confrontation Clause of the Sixth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio Constitution.” McAlpin at
¶ 151. While “[t]he Sixth Amendment’s Confrontation Clause precludes a trial
court from placing ‘improper restrictions’ on defense cross-examination,” it only
“guarantees an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish.’”
(Emphasis in original.)
Id., quoting Pennsylvania v. Ritchie,
480 U.S. 39, 52 (1987)
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and Delaware v. Fensterer, 474 U.S. 15, 20 (1985); see also Evid.R. 611(B) (scope
of cross-examination).
{¶40} “To establish a Confrontation Clause violation, [the defendant] must
show that he was ‘prohibited from engaging in otherwise appropriate cross-
examination.’” Id. at ¶ 152, quoting Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986). An appellate court will not find the trial court erred if “legitimate, legally
supportable reasons exist for sustaining” an objection to the portion of cross-
examination at issue. Id. at ¶ 153-154 (no violation of Confrontation Clause where
State’s objection during defendant’s cross-examination could have been sustained
for improper form or lack of foundation).
{¶41} Moore’s arguments are premised on the trial court sustaining
objections to prevent the improper admission of hearsay statements. Hearsay is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted in the statement.
Evid.R. 801(C). An oral or written assertion is a statement, and a “declarant” is a
person who makes a statement. Evid.R. 801(A), (B).
{¶42} Police reports are generally inadmissible hearsay. State v. Leonard,
2004-Ohio-6235, ¶ 111; Evid.R. 802. However, it is possible that such a report or
portions of a report can be admitted if a hearsay exception applies. One potentially
applicable exception states, in relevant part:
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The following are not excluded by the hearsay rule, even though the
declarant is available as a witness: . . . Records, reports, statements,
or data compilations, in any form, of public offices or agencies, setting
forth . . . matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, excluding, however, in
criminal cases matters observed by police officers and other law
enforcement personnel, unless offered by defendant, unless the
sources of information or other circumstances indicate lack of
trustworthiness.
Evid.R. 803(8)(b). Thus, setting aside other potential admissibility issues, a
defendant in a criminal case may be permitted to introduce a favorable police report
containing matters observed pursuant to official duty, under Evid.R. 803(8)(b).
E.g., State v. Settles, 1998 WL 667635, *5 (3d Dist. Sept. 30, 1998). Contrary to
Moore’s assertions, hearsay statements contained in a public record are not
automatically admissible by virtue of their inclusion in an official record. State v.
Mohn,
2009-Ohio-437 ¶ 26 (12th Dist.). Rather, such statements may be admitted
into evidence only if they fall within an additional hearsay exception.
Id. For
example, the contents of a police report may contain hearsay, thus creating a
hearsay-within-hearsay issue. Such statements would only be admissible if they fall
within the exception enunciated in Evid.R. 805 (“[h]earsay included within hearsay
is not excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule provided in these rules”).
3. Analysis
{¶43} Turning first to cross-examination that related to her police report,
Officer Jagger testified that she conducted an investigation in this case and wrote a
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report after reviewing the case file and having a discussion with T.G. over the phone.
Initially, Moore complains that the trial court improperly sustained hearsay
objections when his counsel “asked questions about the contents of the report.”
(Appellant’s Brief at 16). In reviewing the transcript at this portion of the trial,
Moore did not attempt to argue the police report or its contents were not hearsay or
that any hearsay exception applied. Moore’s counsel indicated he intended to have
the officer authenticate the report and to enter it as an exhibit, and he stressed it was
Officer Jagger’s own report. Based on our review of the record, we find no abuse
of discretion. See State v. James, 2022-Ohio-3244, ¶ 11-13 (1st Dist.) (court’s
limitations on defense counsel’s cross-examination were not an abuse of discretion
in light of the record, including failure by defense counsel to raise an argument to
overcome the State’s objection).
{¶44} During the next set of questions about the police report’s contents,
Moore’s counsel asked Officer Jagger to tell the jury what she learned from T.G.
about her half-sisters having information for Officer Jagger to investigate. Moore
argued that the statements to be elicited were not being offered to prove the truth of
the matter asserted; instead they would describe the process of Officer Jagger’s
investigation—in order to support Moore’s theory that the investigation was sloppy
and did not conform to her training because T.G. was the one directing who should
be interviewed.
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{¶45} We acknowledge that “extrajudicial statements made by an out-of-
court declarant are properly admissible to explain the actions of a witness to whom
the statement was directed.” State v. Thomas, 61 Ohio St.2d 223, 232 (1980).
However, a statement in the officer’s report from T.G. that she wanted Officer
Jagger to interview certain people would be offered for the truth of the matter
asserted. Yet even if the statements were not being offered for the truth of the matter
asserted, the barred evidence had limited relevance and would have been
cumulative, so we find no abuse of discretion. State v. Forehope,
71 Ohio App.3d
435, 443 (5th Dist. 1991) (statements in police report were not offered for truth of
matter asserted, but trial court did not abuse its discretion by barring admission
because the report was cumulative of other evidence on the issue). Further, a
properly formatted question asked of the officer would have resulted in showing
why Officer Jagger interviewed T.G.’s half-sisters and allowed counsel to draw the
desired inference that T.G. was directing the investigation.
{¶46} Moreover, even if the trial court erred in sustaining this hearsay
objection, such error was harmless beyond a reasonable doubt. Crim.R. 52(A)
defines harmless error in the context of criminal cases and provides: “Any error,
defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.” See also Evid.R. 103(A) (effect of erroneous ruling). “During a
harmless-error inquiry, the state has the burden of proving that the error did not
affect the substantial rights of the defendant.” State v. Morris, 2014-Ohio-5052, ¶
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23. “Whether the defendant’s substantial rights were affected depends on whether
the error was prejudicial, i.e., whether it affected the outcome of the trial.” State v.
Jones, 2020-Ohio-3051, ¶ 18. If a reviewing court determines that the error did not
affect the defendant’s substantial rights, then the error is harmless and will be
disregarded. Morris at ¶ 23.
{¶47} Here, the trial court’s decision to sustain the hearsay objection did not
affect Moore’s substantial rights. While it did have some relevance, the testimony
to be elicited concerned a relatively peripheral issue and, as the State pointed out at
trial, Moore’s counsel conducted an in-depth cross-examination into the process of
Officer Jagger’s investigation and critiqued it. State v. Lester, 2004-Ohio-2909, ¶
27-28 (12th Dist.) (barring police report did not affect a substantial right of the
defendant, where defendant explored what he viewed as an inconsistency between
the report and the officer’s testimony). This included exploring, for example:
Officer Jagger’s training on report writing and interviewing; the importance of being
impartial, timely, accurate, and comprehensive in documenting events; when and
how she would document the events of her investigation; her role in the
investigation, including developing a rapport with victims so they will trust her; her
training and experience with false sex abuse allegations; steps taken in the
investigation; how she had not conducted the initial interview of T.G. and did not
watch that interview but instead relied on the narrative supplied by the interviewer;
and whether she followed her procedures and training in this particular case.
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Additionally, Moore’s counsel questioned T.G.’s mother, T.G.’s half-sister, and
T.G. herself—all of whom testified after Officer Jagger—about their involvement
in and knowledge of Officer Jagger’s investigation. (E.g., Trial Tr. at 356, 567-568,
572-574). Based on our review of the record, Moore’s case was not diminished by
the trial court’s decision to sustain the State’s hearsay objection to defense counsel’s
attempted improper use of the police report and it did not affect the outcome of the
trial. Lester at ¶ 27-28 (finding no prejudice to defendant due to police report not
being admitted into evidence); Robb, 88 Ohio St.3d at 71 (defendant not prejudiced
by trial court’s refusal to allow cross-examination into topic, where there was a
wide-ranging cross-examination providing jury sufficient information to assess
witness as well as abundant other evidence reflecting on the issue).
{¶48} Next, Moore’s counsel then attempted to introduce the entire police
report into evidence, citing hearsay exceptions pursuant to Evid.R. 803(6) and
803(8). However, even if one or more of the exceptions applied to the police report
generally, Moore was attempting to admit statements within its contents that he
failed to show either were admissible under a hearsay exception or did not constitute
hearsay. See Petti v. Perna, 86 Ohio App.3d 508, 513-514 (3d Dist. 1993) (for the
Evid.R. 803(8) exception to apply, “[t]he observations must be either the firsthand
observations of the official making the report or those of one with a duty to report
to a public official”). When the trial court pointed out the double-hearsay issue,
Moore’s counsel complained there was “[a] lot of hiding evidence from the jury”
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but did not address the admissibility challenges created by the evidence rules. (Trial
Tr. at 290). We find no abuse of discretion. Settles, 1998 WL 667635, at *6 (3d
Dist.) (trial court erred in allowing detective’s testimony about contents of his police
report because it contained hearsay statements of witnesses who had no official duty
to give statements to the police).
{¶49} Finally, Moore argues the trial court erred by sustaining a hearsay
objection when his counsel posed this question to T.G.’s mother: did Officer Jagger
ever ask you who T.G.’s pediatrician was from 2014 to 2016? Moore claims that
questions cannot be hearsay because they are not statements and not offered to prove
facts. Arguably, there is conflicting case law on this point, but we need not delve
into it to address the argument here. E.g., In re M.H., 2021-Ohio-1041, ¶ 56 (1st
Dist.) (questions “are not assertions, and therefore not statements, because they are
incapable of being proven either true or false”); State v. Ecklin,
1995 WL 407309,
*6 (11th Dist. June 9, 1995) (“a question can be an assertion and, therefore,
hearsay”). Even if the question posed by Moore’s counsel did not seek to elicit
hearsay, any error in sustaining the hearsay objection was harmless beyond a
reasonable doubt. Once again, the testimony to be elicited concerned a relatively
peripheral issue in the case and Moore’s counsel explored, at length, the process of
Officer Jagger’s investigation and critiqued it. This included asking Officer Jagger
both if she had requested and if she had ever received medical records from T.G.’s
pediatrician (Officer Jagger admitted she had not). Based on our review of the
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record, the trial court’s decision to sustain the State’s hearsay objection did not
affect the trial’s outcome. See also U.S. v. Disla, 358 Fed.Appx. 121, 132-134 (11th
Cir. 2009).5
{¶50} Moore’s third and sixth assignments of error are overruled.
E. Ninth Assignment of Error
{¶51} The ninth assignment of error also addresses an evidentiary issue. In
response to defense counsel’s questioning, T.G. admitted that she became frustrated
at the people on Moore’s side of the family because they weren’t communicating
with her, including a cousin. When Moore’s counsel asked, “did you at some point
send [the cousin] a Facebook message expressing that frustration that no one -- ,”
the prosecutor cut off the rest of the question with a hearsay objection. (Trial Tr. at
575). Defense counsel argued the solicited testimony was not being offered for the
truth of the matter asserted in the statement, but was being offered to show bias and
motive. The court sustained the objection and defense counsel, rather than
reframing the question, abandoned the inquiry and ended his examination of T.G.
5
As a final matter, within the assignment of error, Moore offhandedly directs us to a portion of the cross-examination of T.G.’s half-sister. (See Appellant’s Brief at 19). His counsel sought to show the half-sister
was testifying inconsistently from the first trial regarding when she told T.G.’s mother about Moore having
sex with T.G. On appeal, Moore complains that the State dictated the method of impeachment that had to be
used. (Id.). However, the trial court did not impose any requirements on Moore’s counsel to use a specific
method of cross-examination, and we find no abuse of discretion in the court sustaining the objection
challenging the improper impeachment. Looking at the transcript, it is evident that during a sidebar the
prosecutor—in an apparent attempt to help defense counsel and move the cross-examination forward—
described a way to impeach a witness through the use of a prior inconsistent statement. Moore’s counsel
then was able to have T.G.’s half-sister acknowledge her testimony differed from her prior testimony, she
referenced the difference, and she tried to explain the difference.
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{¶52} We find no abuse of discretion. It is questionable whether Moore was
not offering the statement to prove the truth of the matter asserted, but instead to
show bias and motive. See State v. Issa, 1998 WL 80301, *3 (1st Dist. Feb. 27,
1998) (no abuse of discretion in excluding out-of-court statement where defendant
argued it was admissible to show bias, where such a contention was questionable);
State v. King,
2019-Ohio-833, ¶ 15-20 (12th Dist.). Hindering his contention, there
is no indication the lack of communication with Moore’s side of the family or the
statement were made prior to the police investigation or even prior to Moore being
indicted. Furthermore, even if sustaining the objection was erroneous, we conclude
that any error was harmless.
Issa at *3.
{¶53} Moore’s ninth assignment of error is overruled.
F. Fourth Assignment of Error
{¶54} The fourth assignment of error concerns two different issues involving
alleged expert testimony by witnesses not disclosed as experts. First, Moore
complains that the State “offered evidence that [Moore] treated [T.G.] differently
than the two other children in the home, to wit: favoring her with his attentions while
not paying attention to the two others.” (Appellant’s Brief at 20). He cites
testimony from T.G.’s mother and T.G.’s half-sister, as well as his objection that
the State was (allegedly) presenting grooming evidence when no expert had been
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disclosed.6 The trial court overruled the objection on the ground that the witnesses
were testifying to their personal observations about what was happening in their
home, not providing expert testimony.
{¶55} Second, Moore points to Special Agent Walter’s testimony that, based
on his experience investigating these types of sex cases, it is not uncommon for
victims to delay reporting instances of sexual abuse. Special Agent Walter was not
disclosed as an expert witness, and Moore objected that such testimony was expert
testimony. The trial court overruled the objection as permissible lay witness
testimony, pursuant to Evid.R. 701, not expert testimony.
1. Standard of Review
{¶56} An appellate court reviews a trial court’s admission or exclusion of
evidence for an abuse of discretion. State v. Finnerty, 45 Ohio St.3d 104, 107
(1989). Additionally, an abuse of discretion standard applies to a trial court’s
decision to admit testimony under Evid.R. 701. State v. Cook,
2020-Ohio-3411, ¶
39 (3d Dist.). As noted earlier, a trial court abuses its discretion when its conduct
is unreasonable, arbitrary, or unconscionable. Hill,
2022-Ohio-4544, at ¶ 9.
6
The Supreme Court of Ohio approvingly cited the following definition of “grooming”: “Grooming refers
to deliberate actions taken by a defendant to expose a child to sexual material; the ultimate goal of grooming
is the formation of an emotional connection with the child and a reduction of the child’s inhibitions in order
to prepare the child for sexual activity.” State v. Williams,
2012-Ohio-5695, ¶ 21, quoting United States v.
Chambers,
642 F.3d 588, 593 (7th Cir. 2011); see also 2024 Sub. H.B. No. 322 (enacting R.C. 2907.071 to
create the offense of “grooming,” which generally involves engaging in a pattern of conduct with a minor for
the purpose of preparing the minor to engage in sexual activity). While it is questionable whether the
favoritism here qualifies as “grooming,” we need not decide whether it does in order to address Moore’s
assignments of errors.
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2. Analysis
{¶57} Looking at the first issue, we agree with the trial court’s ruling that the
testimony from T.G.’s mother and half-sister concerned their personal observations.
It was not testimony that required them to be qualified as an expert witness and,
therefore, was not objectionable on that basis. See Evid.R. 702.
{¶58} Turning to the second issue, Special Agent Walter testified at length
about his extensive qualifications, training, and experience in law enforcement and
investigating sexual assault cases. This included his experience as a sexual assault
detective for the Marion Police Department and as a special agent for the Naval
Criminal Investigative Service handling numerous sexual assault investigations.
Without objection, Special Agent Walter testified he was familiar with instances of
individuals who delay reporting sexual assault and reasons why victims do not
immediately report having been sexually assaulted. Then, when the prosecutor
asked if delayed reporting of sexual assault was common in his experience, Moore’s
counsel objected. After the trial court overruled the objection, Special Agent Walter
answered “yes” to the question.
{¶59} The evidence rule governing opinion testimony by lay witnesses
provides, “If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences which are
(1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.”
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Evid.R. 701. In assessing admissibility under this rule, the Supreme Court of Ohio
has “recognize[d] the importance of a foundation of sufficient familiarity with the
substance to support the opinion.” State v. McKee, 91 Ohio St.3d 292, 295-296,
2001-Ohio-41 (2001). In other words, in considering the lay witness opinion
testimony, the trial court must make “an initial determination that the witness
possessed sufficient experience or specialized knowledge, thus satisfying the rule’s
requirements that the opinion be both ‘helpful to a clear understanding . . . of a fact
in issue’ and ‘rationally based’ upon the witness’s perception.” Id. at 296. In
accordance with this application of the rule, “courts have permitted lay witnesses to
express their opinions in areas in which it would ordinarily be expected that an
expert must be qualified under Evid.R. 702.” Id.
{¶60} Having reviewed the transcript, we find that the trial court did not
abuse its discretion in admitting Special Agent Walter’s testimony at issue pursuant
to Evid.R. 701. He provided sufficient foundation detailing his experience and
knowledge to support the testimony. See McKee at 297-298. His testimony
concerning whether, in his experience, it is common for individuals to delay
reporting instances of sexual abuse was based on his own perceptions and
experience, and it was helpful to the jury in the determination of a fact in issue.
Evid.R. 701; State v. Jones, 2015-Ohio-4116, ¶ 104-111 (2d Dist.) (trial court did
not abuse its discretion in allowing lay witness detective’s testimony that it is
common for children to delay in reporting sexual abuse, where Evid.R. 701’s
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requirements were met); State v. Bright, 2024-Ohio-2803, ¶ 18-25 (8th Dist.)
(nurse’s testimony offering opinion as to how, when, and why a child sexual-assault
victim may or may not disclose the assault was permissible lay-witness testimony
because the State laid a foundation demonstrating her qualifications and her
testimony was based on her personal knowledge and experience). For example, the
testimony was helpful to the jury in assessing T.G.’s credibility in relation to her
delayed reporting and in understanding the investigative process in general, both of
which Moore attacked during trial. Jones at ¶ 111 (finding the detective’s
“testimony was rationally based on his training and personal experience in child
abuse cases, and aided the trier of fact in determining [the victim’s] credibility since
her disclosure of the abuse was delayed and she had some difficulty with the timing
of her abuse”). We also emphasize that the testimony at issue was general in nature,
not pertaining to T.G. specifically.
Bright at ¶ 23-25.
{¶61} Accordingly, Moore’s reliance on Crim.R. 16(K)—and its
requirements that an expert witness prepare a written report summarizing the
expert’s testimony and disclose that report no later than 21 days before trial—is
misplaced. Bright at ¶ 25 (because the nurse’s testimony was properly admitted
pursuant to Evid.R. 701, “Crim.R. 16(K) was not violated”).
{¶62} Moore’s fourth assignment of error is overruled.
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G. Fifth Assignment of Error
{¶63} In the fifth assignment of error, Moore argues that the trial court erred
by allowing evidence of prior bad acts without the State requesting permission to
present such evidence prior to trial, as required by Evid.R. 404(B). Once again,
Moore focuses his argument on two different sets of evidence that we address
separately.
{¶64} The first set is the favoritism evidence we analyzed in the fourth
assignment of error. Specifically, Moore cites testimony from T.G.’s mother that
she noticed all three girls would want to go to the store with Moore but T.G. was
the only one allowed to go, T.G. would be the only one allowed to take motorcycle
rides with Moore, and T.G. “got a little more spent on her” for Christmas. (Trial
Tr. at 326, 331). Moore argues that the trial court was under the mistaken
impression that the objected-to testimony must concern an act that was illegal or
evil.
{¶65} The second set is T.G.’s testimony concerning Moore’s use of the
dildo, use of the anal beads, and touching prior to having intercourse (i.e., kissing
T.G., touching her breasts, putting his hand in her pants, and touching her vagina).
Moore argues that, in overruling his objection, the trial court erred because the
evidence was never disclosed pursuant to the notice requirements in Evid.R.
404(B)(2)(a), (b), and (c).
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1. Applicable Law and Standards of Review
{¶66} “Evid.R. 404(B) does not contain a blanket prohibition on the
introduction of other-acts evidence.” State v. Echols, 2024-Ohio-5088, ¶ 30.
Instead, it “broadly prohibits the use of ‘[e]vidence of any other crime, wrong, or
act . . . to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.’” Id. at ¶ 24, quoting Evid.R.
404(B)(1). The rule goes on to reference permitted uses of other crimes, wrongs, or
acts, and it contains a notice requirement:
(2) Permitted Uses; Notice. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. The proponent of evidence to be offered under this rule shall:
(a) provide reasonable notice of any such evidence the proponent
intends to introduce at trial so that an opposing party may have a
fair opportunity to meet it;
(b) articulate in the notice the permitted purpose for which the
proponent intends to offer the evidence, and the reasoning that
supports the purpose; and
(c) do so in writing in advance of trial, or in any form during trial
if the court, for good cause, excuses lack of pretrial notice.
Evid.R. 404(B)(2). “Though Evid.R. 404(B) lists specific examples of permissible
nonpropensity purposes for which other-act evidence may be admitted, its list is not
exhaustive.” Echols at ¶ 31. “The key [to admissibility] is that the evidence must
prove something other than the defendant’s disposition to commit certain acts.”
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State v. Hartman, 2020-Ohio-4440, ¶ 22 (“evidence of other acts is admissible when
the evidence is probative of a separate, nonpropensity-based issue”).
{¶67} Not all evidence implicates Evid.R. 404(B). By its “own terms,
evidence must meet two criteria to fall within its scope.” Echols at ¶ 24. First, it
must be evidence of a “crime, wrong, or act.”
Id. Second, “it must not be evidence
that goes directly to the charged crime itself—rather, it must be evidence of an
‘other crime, wrong or act.’” (Emphasis in original.)
Id., quoting Evid.R. 404(B)(1).
{¶68} In considering other-acts evidence, “trial courts should conduct a
three-step analysis.” State v. Williams, 2012-Ohio-5695, ¶ 19. “The first step is to
consider whether the other acts evidence is relevant to making any fact that is of
consequence to the determination of the action more or less probable than it would
be without the evidence.” Id. at ¶ 20, citing Evid.R. 401. The second step “is to
consider whether evidence of the other crimes, wrongs, or acts is presented to prove
the character of the accused in order to show activity in conformity therewith or
whether the other acts evidence is presented for a legitimate purpose, such as those
stated in Evid.R. 404(B).” Id. “[C]ourts must scrutinize the proponent’s logic to
determine exactly how the evidence connects to a proper purpose without relying
on any intermediate improper-character inferences.”
Hartman at ¶ 23.
{¶69} “The third step is to consider whether the probative value of the other
acts evidence is substantially outweighed by the danger of unfair prejudice.”
Williams at ¶ 20, citing Evid.R 403. Given that the evidence rules do not bar all
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prejudicial evidence but only that which is unfairly prejudicial, “the primary
concern is that the evidence creates an undue tendency to lead the factfinder to find
guilt based on an impermissible character-based inference.” Echols, 2024-Ohio-
5088, at ¶ 41. Such evidence must be excluded when its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury. Hartman, 2020-Ohio-4440, at ¶ 29, citing Evid.R. 403(A).
{¶70} Under Evid.R. 404(B), “[t]he determination of whether other-acts
evidence is admitted for a permissible purpose is a question of law, which we review
de novo.” Echols, 2024-Ohio-5088, at ¶ 30, citing Hartman,
2020-Ohio-4440, at ¶
22. However, the portion of our analysis regarding whether the probative value of
the other-acts evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury is reviewed for an abuse
of discretion. Id. at ¶ 39, citing
Hartman at ¶ 30.
2. Analysis
{¶71} We start by addressing the testimony that, around the time the alleged
sexual acts began, witnesses noticed Moore exhibiting favoritism to T.G. over her
half-sisters. Even assuming this testimony falls within the scope of other-acts
evidence subject to Evid.R. 404(B), the testimony was not admitted “to prove
[Moore’s] character in order to show that on a particular occasion [Moore] acted in
accordance with the character.” Evid.R. 404(B)(1). The testimony at issue
explained the sequence of events leading up to the charged offenses and preparation
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for committing them, as well as the delay in reporting them. Evid.R. 404(B)(2); see
also State v. Plevyak, 2014-Ohio-2889, ¶ 26, 29 (11th Dist.); State v. Pridgett, 2016-
Ohio-687, ¶ 29-33 (8th Dist.).
{¶72} Moore emphasized T.G.’s delay in disclosing the conduct, and the jury
could find this testimony helped to explain the sequence of events and why T.G.
may not have immediately reported the conduct of someone close to her who was
showing her favoritism. See State v. Schwarzman, 2014-Ohio-2393, ¶ 31-33 (8th
Dist.) (in countering defendant’s credibility attacks on victim due to delayed
disclosure, explaining the jury could have relied on testimony concerning the
favoritism defendant showed to victim).
{¶73} Looking to the three-part test for admission of the other-acts evidence,
the testimony was relevant. Evid.R. 401; e.g., State v. Granakis, 2017-Ohio-8428,
¶ 23-24 (9th Dist.) (witness testimony as to observations regarding how defendant
and victim interacted, including showing favoritism, was admissible to help the trier
of fact understand the charge and defendant’s course of conduct). Next, we do not
find that the State presented the testimony concerning favoritism to prove Moore’s
character “in order to show activity in conformity therewith.” Williams, 2012-Ohio-
5695, at ¶ 20. Instead, as shown in the preceding paragraph, the other acts evidence
was presented for separate, legitimate purposes to “prove something other than
[Moore’s] disposition to commit certain acts.” Hartman,
2020-Ohio-4440, at ¶ 22;
see also Williams,
2012-Ohio-5695, at ¶ 23; Pridgett,
2016-Ohio-687, at ¶ 29-33
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(8th Dist.) (witness’s testimony concerning defendant’s apparent attempted flattery
of her was relevant to demonstrate his preparation and intent, not used as character
evidence).
{¶74} Turning to the third step, the evidence’s probative value for permitted
purposes was not substantially outweighed by the danger of unfairly prejudicing
Moore or confusing or misleading the jury. The evidence did not have “an undue
tendency to lead” the jury to find him guilty of the charged offenses because he
exhibited favoritism. Echols, 2024-Ohio-5088, at ¶ 41. Therefore, the testimony
passed the three-step analysis for admissibility.
{¶75} Finally, Moore’s primary argument is that the State did not provide
the notice required by Evid.R. 404(B)(2), set forth above. Even if we assume the
testimony concerning favoritism qualifies as other-acts evidence subject to Evid.R.
404(B), we note that Moore does not argue he was surprised the State introduced
the evidence at trial or was unprepared for it. See 2012 Staff Note, Evid.R. 404
(“The purpose of adding the notice requirement is to provide the prosecution and
the defense with the opportunity to prepare their case”). In fact, the trial transcript
indicates Moore expected the testimony and was prepared for it by arguing it was
not relevant to the State’s case. (Trial Tr. at 326-327). Moreover, “[t]he rule should
not be construed to exclude otherwise relevant and admissible evidence solely
because of a lack of notice, absent a showing of bad faith.” 2012 Staff Note, Evid.R.
404. A prosecutor acts in bad faith by withholding notice of the other-acts evidence
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in order to gain a tactical advantage at trial. Plevyak, 2014-Ohio-2889, at ¶ 21-22
(11th Dist.). Moore does not show—or even argue—any bad faith on the part of the
prosecution in introducing such evidence here. Id.; see also State v. Nuzum, 2016-
Ohio-2744, ¶ 21 (6th Dist.). Based on the circumstances, Evid.R. 404(B)’s notice
requirement would not require the first set of evidence at issue to be excluded.
{¶76} The second set of evidence (Moore’s use of sex toys and sexual
contact) was not evidence of other crimes, wrongs, or acts. As shown above, it was
direct testimonial evidence of some of the charged offenses. First, T.G.’s testimony
concerning Moore’s use of the dildo on her was evidence of the GSI offense in
Count 13. Second, T.G.’s testimony concerning Moore’s use of the anal beads on
her the next day was evidence of the rape offense in Count 3. Third, T.G.’s
testimony that Moore would kiss her, touch her breasts, put his hand in her pants,
and touch her vagina prior to having sexual intercourse with her was evidence of
the GSI offenses in Counts 11, 12, and 15. Thus, the testimony went directly to the
charged crimes themselves, so it does not fall within the scope of Evid.R. 404(B)
and its notice requirement does not apply. Echols, 2024-Ohio-5088, at ¶ 24 (the
evidence “must not be evidence that goes directly to the charged crime itself—
rather, it must be evidence of an ‘other crime, wrong or act’” [emphasis in original]),
quoting Evid.R. 404(B)(1).
{¶77} Moore’s fifth assignment of error is overruled.
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H. Tenth Assignment of Error
{¶78} In the tenth assignment of error, Moore contends that the trial court
erred in not requiring the State to play the entire video of Moore’s interview with
Special Agent Walter. Instead, the State introduced only four clips from the
interview. Moore asserts that, at trial, he “attempted to offer the video as a business
record, as a public record, . . . and pursuant to the Rule of Completeness under
Evid.R. 106.” (Appellant’s Brief at 35). Based on a review of the transcript, it
appears Moore did not actually attempt to offer the video as evidence. Rather,
Moore attempted to force the State to play the entire video in order to have his
statements to Special Agent Walter that were recorded on the video introduced to
the jury without his having to personally testify.
1. Standard of Review
{¶79} Once again, an appellate court reviews a trial court’s admission or
exclusion of evidence for an abuse of discretion. Finnerty, 45 Ohio St.3d at 107.
This standard of review applies to a trial court’s decision on whether to admit other
parts of a writing or recorded statement under Evid.R. 106. State v. Singh, 2022-
Ohio-3385, ¶ 31, 35 (12th Dist.); State v. Mathers,
2008-Ohio-2902, ¶ 25-26 (9th
Dist.).
2. Applicable Law
{¶80} Evid.R. 106, commonly known as the “rule of completeness,”
provides that, “[w]hen a writing or recorded statement or part thereof is introduced
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by a party, an adverse party may require the introduction at that time of any other
part or any other writing or recorded statement which is otherwise admissible and
which ought in fairness to be considered contemporaneously with it.” (Emphasis
added.) Evid.R. 106. Therefore, when a party only introduces a part of a written or
recorded statement, the adverse party cannot automatically require the introduction
of another part—or the remainder—of it. Id.; see also Singh at ¶ 33. The adverse
party has the burden of showing the additional part sought to be introduced is
“otherwise admissible.” Singh at ¶ 33. The main purpose of the rule of
completeness is to prevent one party from taking statements out of context and
distorting them. Id. at ¶ 32; Mathers at ¶ 27 (the rule “allows the adverse party to
immediately put the admitted statements into context by permitting the party to
simultaneously admit the remainder of the writing or recording”).
3. Analysis
{¶81} Moore did not meet his burden of showing that the remaining part of
the videotaped police interview was “otherwise admissible.” Initially, we address
Moore’s reliance on the fact that the entire video (with the exception of Moore
mentioning he was willing to take a polygraph) was admitted into evidence at the
first trial. Moore contends the admission of the full video at his first trial (which
was open to the public) allowed him to “offer the video as a business record, as a
public record . . . and pursuant to the Rule of Completeness under Evid.R. 106” and
required the State play the entire video during its questioning of Special Agent
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Walter. (Appellant’s Brief at 35). Moore’s logic is incorrect. The State was free
to present its case at the second trial in the manner it deemed appropriate under the
Rules of Evidence. Moore has failed to show that the stipulated admission of the
video during the first trial is relevant to the issue here or would require admission
of the entire video during the second trial. E.g. State v. Gau, 2010-Ohio-5516, ¶ 21
(11th Dist.) (the actions and proceedings raised by appellant “occurred in the context
of the first trial and were therefore irrelevant to the second trial”).
{¶82} More basically, Moore simply has not shown that any other portion of
the video was “otherwise admissible,” pursuant to Evid.R. 106. During trial, the
State explained the various admissibility issues with the other portions of the video,
including hearsay, rape shield protections, and relevancy. Yet, apart from his claim
that the entire video was both a public record and a business record, Moore fails to
address any of these issues or otherwise affirmatively show why any other portion
of the video was admissible.
{¶83} Concerning his bald assertion that the entire video was a public record,
Moore does not support this proposition with any reasoning or cited authority.
Looking back to the trial transcript, it appears Moore’s argument during the trial
was that, once the video was admitted into evidence in the first trial, it became public
property and a public record. However, the situation does not fit the requirements
of the public records exception to hearsay, so we reject this argument and we
likewise do not find any other exception applies. See Evid.R. 803(6); Singh, 2022-
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Ohio-3385, at ¶ 36 (12th Dist.) (defendant’s statements on other parts of the
videotaped interview “were not ‘otherwise admissible’ as they are exculpatory
statements that do not fall within an exception to the general rule excluding hearsay
statements from evidence”); Mathers, 2008-Ohio-2902, at ¶ 29-30 (9th Dist.) (trial
court’s denial of request to introduce entire recording of defendant’s police
interview was not abuse of discretion; defendant “could not use Evid.R. 106 to offer
his own out of court statement”). The trial court did not abuse its discretion in
denying Moore’s request to play the entire video of the interview during the trial.
{¶84} Moore’s tenth assignment of error is overruled.
I. Second Assignment of Error
{¶85} In the second assignment of error, Moore argues the trial court erred
when it convicted him for sexual battery despite the Third Amended Bill of
Particulars erroneously alleging Moore was T.G.’s stepparent. However, the trial
court at sentencing found that each rape count merged with the sexual battery count
from the same time period. Thus, contrary to Moore’s claim, he actually was not
convicted of sexual battery. E.g., State v. Radabaugh, 2024-Ohio-5640, ¶ 22 (3d
Dist.), citing R.C. 2941.25(A) (although the jury found defendant guilty of two
counts, the trial court merged them at sentencing, so he was only convicted and
sentenced on one of the counts). Consequently, Moore does not have a final
conviction for sexual battery to be vacated. E.g., State v. Marks,
2024-Ohio-4863,
¶ 32, fn. 1 (3d Dist.); State v. Williams,
2012-Ohio-4693, ¶ 71 (4th Dist.) (because
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the count was merged, defendant was not convicted for the count, so there was no
conviction to vacate and any error related to an issue concerning that count was
harmless); State v. Price, 2019-Ohio-3201, ¶ 11, fn. 2 (2d Dist.) (declining to
address assignments of error relating to offense merged at sentencing). Because we
affirm Moore’s convictions and sentence, we need not and do not address this
assignment of error. E.g., State v. Carter,
2022-Ohio-1444, ¶ 48, fn. 7 (3d Dist.)
(“if we reversed the rape convictions for any reason, the kidnapping [charge that
was merged at sentencing] could be reinstated assuming the charge was still
supported by the evidence” [emphasis added.]).
{¶86} Moore’s second assignment of error is overruled.
J. Cumulative Error Analysis
{¶87} Finally, although Moore does not specifically assign such an alleged
error, he also presents the argument that the errors committed by the trial court were
not harmless. Given that we found the possibility of harmless errors in our analysis
above, we consider the cumulative-error doctrine. Pursuant to the doctrine,
“[a]lthough violations of the Rules of Evidence during trial, singularly, may not rise
to the level of prejudicial error, a conviction will be reversed where the cumulative
effect of the errors deprives a defendant of the constitutional right to a fair trial.”
State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus. Here,
even considering all of the possible harmless errors indicated above, Moore’s
argument concerning errors fails because, when considered cumulatively, they did
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not result in prejudicial error or otherwise deprive him of the right to a fair trial.
State v. Powell, 2012-Ohio-2577, ¶ 224; DeMarco,
31 Ohio St.3d at 196-197.
IV. CONCLUSION
{¶88} For the foregoing reasons, Moore’s assignments of error are overruled.
Having found no error prejudicial to the appellant in the particulars assigned and
argued, we affirm the judgment of the Marion County Court of Common Pleas.
Judgment Affirmed
WALDICK, P.J. and WILLAMOWSKI, J., concur.
/jlm
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