inline">[Cite as State v. Fulton, 2022-Ohio-4323

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,
                                                          CASE NO. 9-22-05
       PLAINTIFF-APPELLEE,

       v.

RODNEY D. FULTON,                                         OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2019-CR-0069

                                      Judgment Affirmed

                           Date of Decision: December 5, 2022



APPEARANCES:

        Stephen P. Hardwick for Appellant

        Jocelyn Stefancin for Appellee
Case No. 9-22-05


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Rodney Fulton (“Fulton”) brings this appeal from

the judgment of the Court of Common Pleas of Marion County finding him guilty

of multiple felonies and sentencing him to an aggregate prison term of 41 years to

life. On appeal, Fulton challenges the denial of the admission of evidence and the

sentence imposed. For the reasons set forth below, the judgment is affirmed.

                                Procedural History

       {¶2} On February 21, 2019, the Marion County Grand Jury indicted Fulton

on one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first

degree. Doc. 1. Fulton entered a plea of not guilty to the charge. Doc. 6. On May

29, 2019, a superseding indictment was filed and charged Fulton with the following

counts: 1) rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree;

2) rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree; 3)

abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree; 4) gross

sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree;

and 5) sexual battery in violation of R.C. 2907.03(A)(5), a felony of the second

degree. Doc. 19. Fulton subsequently entered pleas of not guilty to all counts. Doc.

23.

       {¶3} A jury trial was held from July 30 to August 3, 2020. The jury found

Fulton guilty of all counts of the indictment. Doc. 164-168. The trial court held a

sentencing hearing on September 3, 2020. Doc. 181. After a discussion amongst

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Case No. 9-22-05


the parties and the trial court, Count 2 (rape) and Count 3 (abduction) were found

to be allied offenses of similar import causing the offenses to merge. Doc. 181. The

State elected to proceed to sentencing with Count 2. Doc. 181. The trial court then

imposed the following prison sentences on Fulton: Count 1 – 15 years to life; Count

2 – 15 years to life; Count 4 – 48 months; and Count 5 – 7 years. Doc. 181. The

trial court then ordered that the sentences be served consecutively for an aggregate

prison term of 41 years to life. Doc. 181.

       {¶4} On January 25, 2020, Fulton, with leave of this Court, filed a delayed

appeal. Doc. 186. Fulton raises the following assignments of error on appeal.

                            First Assignment of Error

       The trial court erred by refusing to allow [Fulton] to ask, on cross-examination, whether [Fulton] reacted to the deputy’s allegation
       of sexual abuse by exclaiming “Oh, my God. Give me a DNA test.”

                           Second Assignment of Error

       The trial court’s findings clearly and convincingly do not support
       consecutive sentences.

                             Hearsay Evidence

       {¶5} In the first assignment of error, Fulton claims that the trial court erred

in refusing to allow him to ask the deputy about a statement made by Fulton on the

grounds of hearsay. A trial court has broad discretion over the admission or

exclusion of evidence and the decision will not be reversed on appeal absent an

abuse of discretion and a showing of material prejudice. State v. Wendel, 3d Dist.


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Case No. 9-22-05


Union No. 14-16-08,

2016-Ohio-7915

74 N.E.3d 806

. “Material prejudice occurs

when, after weighing the prejudicial effect of the errors, we are unable to find that

without the errors, the fact finder would probably have reached the same decision.”

Id.


       {¶6} Fulton argues in this case that the trial court erred by denying him the

opportunity to question Deputy Craig Layne (“Layne”) about a statement made by

Fulton requesting a DNA test after Layne testified that Layne had been the one to

request the DNA test.    The trial court’s ruling was based on the fact that Fulton’s

statement was hearsay. “‘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.” Evid.R. 801(C).

       {¶7} At trial, Layne testified that he had brought up the idea of a DNA test.

Tr. 594. On cross-examination, Fulton’s counsel attempted to question Layne about

whether Layne raised the idea or whether Fulton had done so. Tr. 599-600.

       Q. But he was accused for the first time in front of you of raping
       a child.

       A. Uh-huh.

       Q. He had quite a reaction, didn’t he?

       A. Yes, he did.

       Q. He was going, “Oh, my God. Oh, my” –

       Mr. Scott: Objection, Your Honor.


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Case No. 9-22-05


Tr. 599-600. The State argued that this was asking for a hearsay statement because

it was asking the witness what Fulton had said. Fulton’s counsel argued that he was

trying to show that Fulton had stated “Oh, my God. Give me a DNA test.” Tr. 601.

According to counsel, this request was the first time the idea of a DNA test was

raised and it was Fulton who did so as was shown on the tape of the interview. Tr.

601. The trial court agreed with the State and sustained the objection.

       {¶8} Generally, hearsay statements are not admissible, unless an exception

applies. Evid.R. 802. The statement in question here was clearly an out of court

statement offered to prove the truth of the matter asserted, i.e. that Fulton was the

one to raise the idea of a DNA test. It was not an admission offered by Layne against

Fulton, which would not have been hearsay. Evid.R. 801(D)(2). Thus, the trial

court could conclude that the statement was a hearsay statement.

       {¶9} Fulton claims on appeal that the statement was not a hearsay statement

because it was an excited utterance. An “excited utterance” is one “relating to a

startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” Evid.R. 803(2). Excited utterances

are exceptions to the hearsay rule. Evid.R. 803. This court notes that Fulton did

not argue that the statement was an excited utterance to the trial court. “[I]t is a

cardinal rule of appellate procedure that a party cannot assert new legal theories for

the first time on appeal.” State v. Richcreek,

196 Ohio App.3d 505

, 2011-Ohio-

4686, ¶ 33,

964 N.E.2d 442

 (6th Dist.). The failure to raise at trial that a statement

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Case No. 9-22-05


was an excited utterance and thus not subject to the hearsay rule results in a waiver

of the issue for appeal. State v. York,

115 Ohio App.3d 245, 249

685 N.E.2d 261


(4th Dist. 1996). Since Fulton failed to raise this issue during trial, he may not now

argue for the first time that the statement was admissible as an excited utterance.

       {¶10} Even if we were to find that the statement was an excited utterance,

and thus admissible, it would not necessarily result in a prejudicial error. The

statement in question here was regarding who suggested the DNA test. This was

not a material fact, but was instead attempting to be used to impeach the credibility

of Layne who claimed he was the one who suggested the test. The jury heard the

testimony of the victim who identified Fulton as the person who lived with her

grandmother and the person who raped her. The victim however was not able to

identify Fulton in the courtroom as he had changed his appearance. Fulton does not

raise any alleged error with the victim’s testimony. Layne’s testimony was merely

to identify Fulton, as he appeared in the courtroom, as the same person he

interviewed as a suspect in response to the allegations made.      Thus, no prejudice

resulted from the trial court’s ruling. The first assignment of error is overruled.

                                         Sentencing

       {¶11} Fulton claims in his second assignment of error that the trial court’s

findings in regards to consecutive sentences are not supported by the record. R.C.

2929.14 provides in pertinent part as follows.



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Case No. 9-22-05


      (4) If multiple prison terms are imposed on an offender for
      convictions of multiple offenses, the court may require the
      offender to serve the prison terms consecutively if the court finds
      that the consecutive service is necessary to protect the public from
      future crime or to punish the offender and that consecutive
      sentences are not disproportionate to the seriousness of the
      offender's conduct and to the danger the offender poses to the
      public, and if the court also finds any of the following:

      (a) The offender committed one or more of the multiple offenses
      while the offender was awaiting trial or sentencing, was under a
      sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
      of the Revised Code, or was under post-release control for a prior
      offense.

      (b) At least two of the multiple offenses were committed as part of
      one or more courses of conduct, and the harm caused by two or
      more of the multiple offenses so committed was so great or
      unusual that no single prison term for any of the offenses
      committed as part of any of the courses of conduct adequately
      reflects the seriousness of the offender's conduct.

      (c) The offender's history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from
      future crime by the offender.

R.C. 2929.14(C).

      {¶12} Fulton argues that since he was sentenced to life in prison under R.C.

2971.03, consecutive sentences offer no additional protection to the public and are

irrational. Fulton was convicted of two counts of violating R.C. 2907.02(A)(1)(b)

– rape where the victim was under the age of 13. R.C. 2907.02(A)(1)(b). “Except

as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14

of the Revised Code, an offender under division (A)(1)(b) of this section shall be

sentenced to a prison term or term of life imprisonment pursuant to R.C. 2971.03 of

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Case No. 9-22-05


the Revised Code.” R.C. 2907.02(B). An offender convicted of raping a child under

the age of 10 years of age who was not sentenced to a prison term of life without

the chance of parole, is to be sentenced to a minimum prison term of fifteen years

to a maximum of life imprisonment. R.C. 2971.03(B)(1)(b). The trial court

properly imposed this sentence for the two rape convictions given that the victim

was under the age of ten when the offenses occurred. Likewise, the convictions for

gross sexual imposition and sexual battery were also within the statutory range.

Fulton does not argue that the sentences were not appropriate, only that the trial

court erred in ordering them to be served consecutively.

         {¶13} Fulton claims that since he had already been sentenced to a term of life

in prison, consecutive sentences provided no additional protection to the general

public. However, the life sentence was the maximum sentence, not the minimum.1

If the sentences were to be ordered to be served concurrently, then Fulton potentially

could have been released after 15 years in prison. The trial court determined that

Fulton should only be eligible for parole after he had served 41 years. The length of

the minimum sentence is within the trial court’s sole discretion to determine as long

as the sentences are within the statutory ranges. State v. Davis, 3d Dist. Auglaize

No. 2-11-06,

2011-Ohio-5441

. The trial court made the required findings pursuant

to R.C. 2929.14(C) and the findings were supported by the record. Thus, this Court


1
 If the sentences imposed were life without the possibility of parole, the issue of consecutive sentences would
be moot as the decision would have no practical affect since one cannot serve a sentence after the person has
died. State v. Campbell, 8th Dist. Cuyahoga No. 103982,

2016-Ohio-7613, ¶ 7

.

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Case No. 9-22-05


finds no error in the trial court’s determination that consecutive sentences were

necessary to protect the public and punish the offender for the multiple offenses.

The second assignment of error is overruled.

       {¶14} Having found no error prejudicial to the Appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Marion County

is affirmed.

                                                              Judgment Affirmed

ZIMMERMAN, P.J. and MILLER, J., concur.

/hls




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