AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
[[COURTLISTENER_SUBOPINION {"id":"9882482","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
[Cite as State v. Bruce,
2023-Ohio-3298
.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-22-11
PLAINTIFF-APPELLEE,
v.
TIMOTHY ALLEN BRUCE, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 19-CR-0239
Judgment Reversed
Date of Decision: September 18, 2023
APPEARANCES:
Dennis W. McNamara for Appellant
Raymond Kelly Hamilton for Appellee
Case No. 14-22-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant Timothy A. Bruce (“Timothy”) appeals the
judgment of the Union County Court of Common Pleas, arguing that he was denied
his right to the effective assistance of counsel. This appeal is not primarily about
whether Timothy is guilty of the charges against him but is ultimately about whether
Timothy received a fair trial on the charges against him. For the reasons set forth
below, the judgment of the trial court is reversed.
Facts and Procedural History
{¶2} R. is the daughter of Randy. In 2016, Randy moved to Florida to seek
treatment for his substance abuse issues. At that time, Randy’s mother, Kimberly,
received custody of R. and became her primary caregiver. Kimberly has also
functioned as the primary caregiver of her ex-husband, Timothy, since the time he
had suffered a traumatic brain injury in a motor vehicle accident in 1999. This
injury has affected Timothy’s cognitive and physical abilities through the present
day.
{¶3} While she had custody of R., Kimberly worked as a registered nurse.
When Kimberly was at work, she would have Timothy supervise R. several days a
week after school at his apartment. During this time, Kimberly’s mother, Nancy,
frequently visited with R. A family friend, Brandee, also lived with Kimberly and
R. for roughly nine months in this general timeframe.
-2-
Case No. 14-22-11
{¶4} In August of 2018, R. traveled to Florida to stay with Randy for roughly
ten days. On August 7, 2018, R. had a conversation with her father in which she
disclosed allegations of sexual misconduct that involved Timothy. At this time, R.
was eight years old. Randy then proceeded to file a police report in Florida. As the
misconduct was alleged to have occurred in Ohio, the police in Florida forwarded
this report to the City of Marysville Division of Police in Ohio where Detective
Dennis Flanagan (“Detective Flanagan”) began an investigation into the allegations.
A copy of this report was also forwarded to Molly Vance at Children’s Services in
Union County.
{¶5} After R. returned to Ohio, she was interviewed at the Center for Family
Safety and Healing at Nationwide Children’s Hospital (“Nationwide Hospital”) on
August 15, 2018. Nancy and Kimberly were present with R. during this process and
discussed the allegations with the staff at Nationwide Hospital. After this interview,
Detective Flanagan met with Kimberly, Nancy, and R. at Kimberly’s house.
{¶6} On August 29, 2018, R.’s school received a report from a parent of a
student that R. was watching pornography on her phone on the school bus. The
school conducted an investigation into this matter but found no evidence on her
phone that would corroborate the parent’s report. On August 31, 2018, R. went to
the office of the school nurse, Courtney Thompson, and then wrote down her
allegations in a letter addressed to her teacher. This precipitated a conversation
between R. and the school principal, Thomas Holdren.
-3-
Case No. 14-22-11
{¶7} As part of his investigation, Detective Flanagan conducted interviews
with Kimberly, Brandee, and Nancy. He also conducted a search of Timothy’s
apartment where he discovered pornographic DVDs and a laptop containing a
number of pornographic materials. The police took these items into evidence as R.
had alleged that Timothy had shown her pornographic videos on his television.
{¶8} On October 10, 2019, Timothy was indicted on one count of voyeurism
in violation of R.C. 2907.08(C), a felony of the fifth degree; one count of
disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1), a
felony of the fourth degree; one count of importuning in violation of R.C.
2907.07(A), a felony of the third degree; three counts of gross sexual imposition in
violation of R.C. 2907.05(A)(4), felonies of the third degree; and four counts of rape
in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree.
{¶9} A jury trial on these charges occurred between February 28, 2022 and
March 2, 2022. By this time, R. was eleven years old. On the first day of trial, the
State called Randy and two employees of the Center for Family Safety and Healing
at Nationwide Children’s Hospital. On the second day of trial, the State began by
calling the forensic nurse, Gail Hornor (“Hornor”), who had conducted a physical
examination of R., to testify. At trial, Hornor affirmed that the medical examination
did not produce any physical evidence to corroborate her allegations. Hornor
testified that R.’s “exam was normal” but that these results did not foreclose the
-4-
Case No. 14-22-11
possibility of the conduct alleged by R. (Mar. 1 Tr. 22-23). The State then had
Thomas Holdren and Courtney Thompson testify before calling R. as a witness.
{¶10} On taking the stand, R. testified that, at various times beginning just
after her seventh birthday, Timothy had shown her pornographic videos; watched
her while she was showering; touched the insides of her privates with his fingers;
put his tongue on her chest and genitals; and contacted parts of her body with his
genitals, including her mouth. After this testimony, the State called Molly Vance
and Detective Flanagan to testify.
{¶11} On the third day of trial, the Defense called Kimberly, Nancy, and
Brandee to testify as witnesses. On March 3, 2022, the jury returned verdicts of
guilty on all of the charges against Timothy. On March 24, 2022, the trial court
sentenced Timothy and issued its judgment entry of sentencing. The trial court
imposed multiple life sentences on Timothy without the possibility of parole.
Assignment of Error
{¶12} Timothy filed his notice of appeal on April 22, 2022. On appeal, he
raises the following assignment of error:
Mr. Bruce was denied the effective assistance of counsel during
his trial; Sixth and Fourteenth Amendments of the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
Timothy argues that his counsel was deficient for his failure to object to the
introduction of inadmissible exhibits or testimony on roughly thirty occasions that
are identified in his brief.
-5-
Case No. 14-22-11
Legal Standard
{¶13} “Under Ohio law, ‘a properly licensed attorney is presumed to carry
out his duties in a competent manner.’” State v. Harvey, 3d Dist. Marion No. 9-19-
34,
2020-Ohio-329, ¶ 57
, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9,
1993
WL 270995
(July 22, 1993). “For this reason, the appellant has the burden of
proving that he or she was denied the right to the effective assistance of counsel.”
State v. Cartlidge, 3d Dist. Seneca No. 13-19-44,
2020-Ohio-3615 ¶ 39
. “In order
to prove an ineffective assistance of counsel claim, the appellant must carry the
burden of establishing (1) that his or her counsel’s performance was deficient and
(2) that this deficient performance prejudiced the defendant.” State v. McWay, 3d
Dist. Allen No. 1-17-42,
2018-Ohio-3618, ¶ 24
, quoting Strickland v. Washington,
466 U.S. 668, 687
,
104 S.Ct. 2052
,
80 L.Ed.2d 674
(1984).
{¶14} In order to establish deficient performance, the appellant must
demonstrate that trial “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
State v. Morrissey,
2022-Ohio-3519
,
198 N.E.3d 554, ¶ 26
(3d Dist.), quoting
Strickland at 687
. “Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance.” McWay at ¶ 24, quoting State v.
Pellegrini, 3d Dist. Allen No. 1-12-30,
2013-Ohio-141, ¶ 40
.
{¶15} “In order to establish prejudice, ‘the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
-6-
Case No. 14-22-11
been different.’” State v. Berry, 3d Dist. Union No. 14-20-05,
2021-Ohio-1132, ¶
122
, quoting State v. Bibbs,
2016-Ohio-8396
,
78 N.E.3d 343
, ¶ 13 (3d Dist.). If the
appellant does not establish one of these two prongs, the appellate court does not
need to consider the facts of the case under the other prong of the test. State v.
Baker, 3d Dist. Allen No. 1-17-61,
2018-Ohio-3431, ¶ 19
, citing State v. Walker,
2016-Ohio-3499
,
66 N.E.3d 349
, ¶ 20 (3d Dist.).
Legal Analysis
{¶16} On appeal, Timothy argues that his defense counsel was deficient for
failing to object on roughly thirty different occasions that he identifies in his brief.
Timothy divides these instances of alleged deficient performance into four
categories: impermissible other acts evidence, improper opinion testimony,
inadmissible hearsay statements, and improper prosecutorial comments during
closing arguments. In our analysis, we will divide these thirty alleged instances into
the four categories used by Timothy and will then analyze whether each of these
instances represents an error. After examining whether these identified instances
constituted errors, we will turn to examining whether Timothy carried the burden of
demonstrating prejudice.
I. Deficient Performance Analysis: Other Acts Evidence
{¶17} “A hallmark of the American criminal justice system is the principle
that proof that the accused committed a crime other than the one for which he is on
trial is not admissible when its sole purpose is to show the accused’s propensity or
-7-
Case No. 14-22-11
inclination to commit crime.” State v. Sutherland,
2021-Ohio-2433
,
173 N.E.3d
942, ¶ 8
(2d Dist.), quoting State v. Curry,
43 Ohio St.2d 66, 68
,
330 N.E.2d 720
(1975), citing 1 Underhill’s Criminal Evidence, Section 205, 595 (6th Ed. 1973).
The reasons for this principle are
(1) The overstrong tendency to believe the defendant guilty of the
charge merely because he is a person likely to do such acts; (2) the
tendency to condemn not because he is believed guilty of the present
charge but because he has escaped punishment from other offenses;
(3) the injustice of attacking one who is not prepared to demonstrate
the attacking evidence is fabricated; and (4) the confusion of issues
which might result from bringing in evidence of other crimes.’
Curry at 68
, quoting Whitty v. State,
34 Wis.2d 278, 292
,
149 N.W.2d 557, 563
(1967). This logic extends to evidence of other prior wrongs or bad acts. State v.
Merritt, 7th Dist. Jefferson No. 09 JE 26,
2011-Ohio-1468, ¶ 19
. For this reason,
“[a]s a general rule[,] evidence of prior crimes, wrongs, or bad acts is inadmissible
if it is wholly independent of the charge for which an accused is on trial. State v.
Fannon,
2018-Ohio-5242
,
117 N.E.3d 10, ¶ 67
(4th Dist.).
{¶18} “Evid.R. 404(B)[(1)] categorically prohibits evidence of a defendant’s
other acts when its only value is to show that the defendant has the character or
propensity to commit a crime.” State v. Smith,
162 Ohio St.3d 353
, 2020-Ohio-
4441,
165 N.E.3d 1123, ¶ 36
, citing Evid.R. 404(B). In other words, “evidence
which tends to show that the accused has committed other crimes or acts
independent of the crime for which he stands trial is not admissible to prove a
defendant’s character or that the defendant acted in conformity therewith.” State v.
-8-
Case No. 14-22-11
Wendel,
2016-Ohio-7915
,
74 N.E.3d 806
(3d Dist.), quoting State v. Hawthorne,
7th Dist. Columbiana No.
04 CO 56
,
2005-Ohio-6779, ¶ 24
. See Evid.R. 404(A).
{¶19} However, Evid.R. 404(B)(2) contains a list of permitted uses for
evidence of other crimes, wrongs, or acts. Evid.R. 404(B)(2). This provision states
that such evidence may be used to establish “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Evid.R. 404(B)(2).
The admissibility of other acts evidence is ‘carefully limited because
of the substantial danger that the jury will convict the defendant solely
because it assumes that the defendant has a propensity to commit
criminal acts, or deserves punishment regardless of whether he or she
committed the crime charged in the indictment.’
State v. Jones, 4th Dist. Scioto No. 06CA3116,
2008-Ohio-968, ¶ 33
, quoting In re
Sturm, 4th Dist. Washington No. 05CA35,
2006-Ohio-7101, ¶ 51
.
{¶20} “In determining whether other acts evidence is admissible, the Ohio
Supreme Court has set forth a three-step analysis.” State v. Richey, 2021-Ohio-
1461,
170 N.E.3d 933, ¶ 37
(3d Dist.), citing State v. Williams,
134 Ohio St.3d 521
,
2012-Ohio-5695
,
983 N.E.2d 1278, ¶ 19-20
.
‘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.’
[Williams at] ¶ 20, citing Evid.R. 401. See also [State v.] Hartman[,
161 Ohio St.3d 214
,
2020-Ohio-4440
,
161 N.E.3d 651
,] ¶ 24, 28.
State v. Williams, 3d Dist. Allen No. 1-19-70,
2021-Ohio-256, ¶ 16
. “The threshold
question is whether the evidence is relevant.”
Smith at ¶ 37
. “The rule governing
-9-
Case No. 14-22-11
the admissibility of other-acts evidence does not bypass the relevancy
determination.” Hartman at ¶ 25.
‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.
Evid.R. 401. “Evidence which is not relevant is not admissible.” Evid.R. 402.
However,
the problem with other-acts evidence is rarely that it is irrelevant;
often, it is too relevant. Hartman at ¶ 25; see 1A Wigmore, Evidence,
Section 58.2, at 1212 (Tillers Rev. 1983). In the Evid.R. 404(B)
context, the relevance examination asks whether the proffered
evidence is relevant to the particular purpose for which it is offered,
as well as whether it is relevant to an issue that is actually in dispute.
Hartman at ¶ 26-27.
Smith at ¶ 37
. For this reason, “the inquiry is not whether the other-acts evidence is
relevant to the ultimate determination of guilt. Rather, the court must evaluate
whether the evidence is relevant to the particular purpose for which it is offered.”
Hartman at ¶ 26.
‘The next 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).’
Williams,
2021-Ohio-256, ¶ 16
(3d Dist.), quoting Williams,
2012-Ohio-5695
, ¶ 19-
20. “The key is that the [other acts] evidence must prove something other than the
defendant’s disposition to commit certain acts.”
Smith, supra, at ¶ 36
, quoting
-10-
Case No. 14-22-11
Hartman, supra, at ¶ 22
. These first two steps of the Ohio Supreme Court’s analysis
present questions of law and are subject to a de novo standard of review on appeal.
State v. McDaniel,
2021-Ohio-724
,
168 N.E.3d 910, ¶ 17
(1st Dist.).
Hartman,
supra, at ¶ 22
, citing Leonard, The New Wigmore: Evidence of Other Misconduct
and Similar Events, Section 4.10 (2d Ed.2019) (“[d]etermining whether the
evidence is offered for an impermissible purpose does not involve the exercise of
discretion * * *, an appellate court should scrutinize the [trial court’s] finding under
a de novo standard”).
{¶21} However, “[t]he analysis does not end once a proponent has
established a permissible nonpropensity purpose for the admission of other-acts
evidence.”
Hartman, supra, at ¶ 29
.
‘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[,
2012-Ohio-5695
,] ¶ 20, citing Evid.R. 403. See
also Hartman at ¶ 29.
Williams,
2021-Ohio-256, at ¶ 16
. “As the importance of the factual dispute for
which the evidence is offered to the resolution of the case increases, the probative
value of the evidence also increases and the risk of unfair prejudice decreases.”
Hartman, supra, at ¶ 31
.
{¶22} This third step “constitutes a judgment call which we review for abuse
of discretion.”
McDaniel at ¶ 17
. See
Hartman, supra, at ¶ 30
(holding that
“[b]alancing the risks and benefits of the evidence necessarily involves an exercise
-11-
Case No. 14-22-11
of judgment; thus, the trial court’s determination should be reviewed for an abuse
of discretion”). Thus, “[i]n the absence of an abuse of discretion and a showing of
material prejudice, ‘an appellate court will not disturb a trial court’s ruling as to the
admissibility of evidence.’” State v. Brentlinger,
2017-Ohio-2588
,
90 N.E.3d 200,
¶ 46
(3d Dist.), quoting State v. Rollison, 3d Dist. Marion 9-09-51,
2010-Ohio-2162,
¶ 32
. “An abuse of discretion has been described as an unreasonable, arbitrary or
unconscionable decision.” State v. Harris, 3d Dist. Hancock No. 5-99-14,
1999 WL
797159
(Sept. 30, 1999). “[E]vidence of other crimes, wrongs or bad acts carries
the potential for the most virulent kind of prejudice for the accused.” State v. Porter,
2d Dist. Montgomery No. 28288,
2019-Ohio-4482, ¶ 12
. For this reason, Evid.R.
404(B) “must be strictly construed against the admissibility of such evidence.” State
v. Pearson,
114 Ohio App.3d 168, 185
,
682 N.E.2d 1086, 1897
(3d Dist. 1996).
{¶23} On appeal, Timothy identifies eleven instances where he argues
improper other acts testimony was introduced at his trial. These eleven instances
fall into three main categories. The first five instances relate to his sexual history,
including his alleged association with prostitutes. (Mar. 1 Tr. 158, 183; Mar. 2 Tr.
60, 129-130, 131). The next three instances relate to Timothy’s use or possession
of various pornographic materials. (Mar. 1 Tr. 157, 160, 176, 182). The final three
of these identified instances relate to his alleged drug use. (Feb. 28 Tr. 58; Mar. 1
Tr. 160; Mar. 2 Tr. 52). For the sake of clarity, we will examine these eleven
instances in three separate analyses based on the preceding categorizations.
-12-
Case No. 14-22-11
A. Other Acts Evidence: Sexual History
{¶24} Timothy identifies five instances in which he argues the State
improperly introduced other acts evidence that related to his sexual history. The
first, second, third, and fourth instances address discussions of Timothy’s possible
involvement with prostitutes or adult escorts. The fifth instance is testimony about
a comment that Timothy made to Kimberly. We will address these two groupings
of challenged testimony in separate analyses.
{¶25} First, Second, Third, and Fourth Instances: The State questioned
Detective Flanagan on direct examination about whether Timothy had previously
had “any adult female visitors who were not Kim[.], Brandee [a family friend], [or]
Nancy [Kimberly’s mother] [.]” (Mar. 1 Tr. 157). Detective Flanagan answered in
the affirmative and then stated the following:
What we learned during our investigation was that after Mr. Bruce’s
traffic accident, he still had sexual urges, was considered by family
members to be very sexually driven and so, he started frequenting a
website called Back Page. Back Page, at one time, was one of the
largest pornographic websites in the United States and it gained quite
a bit of notoriety for its ties to prostitution and sex trafficking. It had
a personal ad’s page where it would advertise for adult
companionship, was essentially it was a cover for prostitution. Mr.
Bruce began frequenting this site and on, at least, two to three
occasions he did, in fact, order prostitutes to come to his apartment.
This was verified by family members who refer to these visits as adult
dates.
Id. at 158. The following exchange then occurred:
[Prosecutor:] So, I want to make sure. So, his own family members
contended to you that Tim Bruce was getting prostitutes to his home?
-13-
Case No. 14-22-11
[Detective Flanagan:] Yes.
[Prosecutor:] And did I hear you say they called them adult dates?
[Detective Flanagan:] Adult dates to take care of the urges he was
having.
Id. at 158.1 He later testified that Back Pages “was shut down in April of 2018 after
a Federal investigation” and that Timothy’s alleged activities on this site would have
been illegal. Id. at 183. The following exchange then occurred:
[Defense Counsel:] Okay. So, was that activity of scheduling this
type of thing, if in fact true, was that illegal?
[Detective Flanagan:] Scheduling those types of visits, yes, that was
illegal but by the time the investigation started, the site had gone down
and I had been told by the family that Mr. Bruce no longer accessed
that site because of the scrutiny it was getting from law enforcement.
Id. However, according to Detective Flanagan’s testimony, no charges relating to
these activities were ever brought against Timothy. The charges in the indictment
in this case certainly did not arise from these specific activities. Further, Detective
Flanagan’s testimony on this matter also relied entirely upon hearsay statements
from multiple sources. We also note that, as Timothy points out is his brief, the
State did not provide advance notice of its intention to use other acts evidence at
trial in compliance with Evid.R. 404(B).
1
In his brief, Timothy also challenges the testimony identified in this first instance as containing inadmissible
hearsay in addition to being improper other acts evidence.
-14-
Case No. 14-22-11
{¶26} In the second challenged instance, the prosecutor again brought up the
subject of prostitution when questioning Nancy in the following exchange:
[Prosecutor:] But you said [in the recorded interview] * * *, quote, I
remember one night there was a girl there. Never seen before. Maybe
20 or 30 with Tim and when I asked Kim, she said, Tim’s friend
brought her from Columbus, end quote.
[Nancy:] Okay.
***
[Prosecutor:] Do you remember that incident?
[Nancy:] Yeah, I do remember—I do remember Kimmy telling me
that, yeah.
[Prosecutor:] And so, that girl you saw there that was 20 or 30 years
old * * * tell me what you remember about that.
[Nancy:] Um, well, I can tell you what she looks like.
[Prosecutor:] Go ahead, please.
[Nancy:] You know, if I’m right, um, kind of—short, okay. Pretty
short. Blond hair. A nice young lady, you know, and she was there
to see Tim.
[Prosecutor:] Okay. Short blond hair, you said?
[Nancy:] I just said blond hair.
[Prosecutor:] You said she was short?
[Nancy:] Yeah, she was—she was.
[Prosecutor:] She was short?
[Nancy:] She was not tall. Let’s put it that way.
-15-
Case No. 14-22-11
***
[Prosecutor:] And she had blond hair?
[Nancy:] I believe so.
[Prosecutor:] Okay, and what was your understanding why she was
there?
[Nancy:] She was a friend of Tim’s. I mean, to—to—how would I
call it. Um, to be his mate or something. I mean, they—I don’t know
if you would call it dating because, you know, she stayed—I believe
she stayed there a little while, you know.
[Prosecutor:] She stayed there that evening?
[Nancy:] Yeah, and you know, like I said, you know, I didn’t take it
much further than that but Tim—you know, Tim liked her. I know
that. You know, I think he kind of had a crush on her.
(Mar. 2 Tr. 130-132). We note that this exchange began with Nancy’s prior
statement of what Kimberly had reportedly told her. Further, the prosecution
requested a description of this alleged prostitute and then asked for these details to
be repeated. Dwelling on such inarguably irrelevant details only served to
needlessly prolong a line of questioning into a highly prejudicial topic.
{¶27} In the third instance, Timothy identifies another exchange that the
prosecution had with Nancy on the subject of his involvement with adult escorts:
[Prosecutor:] During that same interview with Detective Flanagan *
* * that I referenced * * *, Detective Flanagan asked you if you had
any knowledge about prostitutes and Tim Bruce.
[Nancy:] Uh-huh.
[Prosecutor:] Do you remember what you told him?
-16-
Case No. 14-22-11
[Nancy:] Um, no, I don’t remember but—
[Prosecutor:] Do you remember anything about prostitutes and Tim
Bruce?
[Nancy:] Um, I know somebody took him there for his birthday one
time.
[Prosecutor:] Okay. Keep elaborating.
[Nancy:] Huh?
[Prosecutor:] Keep—you said somebody took him there for his
birthday?
[Nancy:] Yeah, I wasn’t there, so I don’t know if they found one or
not. I just know that was supposed to be a birthday present.
(Mar. 2 Tr. 129-130). We note that it is not clear from these statements that Nancy
had the knowledge required to verify whether a prostitute was, in fact, obtained as
a “birthday present” for Timothy; whether Timothy was aware that a prostitute was
potentially being procured for him; or any of the other circumstances surrounding
this rumored plan. Id. at 130.
{¶28} In the fourth instance, while questioning Kimberly, the prosecution yet
again brought up the subject of Timothy’s prior involvement with prostitutes:
[Prosecutor:] So, let’s go to—have you ever been involved in
knowledge that Mr. Bruce has undertaken efforts to have prostitutes
visit him?
[Kimberly:] Yes.
[Prosecutor:] Explain your understanding of that.
[Kimberly:] Of him having them?
-17-
Case No. 14-22-11
[Prosecutor:] Yes, ma’am.
[Kimberly:] He—I don’t understand what you’re asking me. He had
one—he had one come to the house. Is that what you’re asking?
[Prosecutor:] Well, you had shared with Detective Flanagan * * * as
have several others that may or may not testify that Mr. Bruce has
undertaken the use of prostitutes?
[Kimberly:] Once.
[Prosecutor:] Only once, as far as you know?
[Kimberly:] Yes.
[Prosecutor:] Okay, and describe that one time. Let me have the
details. Not what actually may have happened but tell me how it was
set up.
[Kimberly:] I don’t know if I—I don’t remember how it was—I don’t
know. I mean, I’m not saying I didn’t know but I’m not remembering
it at this moment. I think it was Back Page.
[Prosecutor:] Okay. Give me a time frame of when this occurred?
[Kimberly:] I don’t know that either. I can’t remember. It’s been so
long.
[Prosecutor:] Oh, * * * I understand you can’t remember, so let’s
narrow it down. Narrow down the timeframe when you think this
Back Page was used by Mr. Bruce to obtain a prostitute?
[Defense Counsel:] Objection. She already says she doesn’t
remember.
[Kimberly:] I don’t remember.
[Prosecutor:] I’m asking clarifying questions.
[Kimberly:] I don’t—don’t remember.
-18-
Case No. 14-22-11
[Defense Counsel:] Ruling, please?
[Trial Court:] Sustained at this point.
[Prosecutor:] So, you can’t remember. Let me see if we can jog your
memory. How old was R[.] at the time when this occurred?
[Kimberly:] I don’t remember that either. I don’t even remember if
it was before or after or, I think, it was before. I’m not sure.
(Mar. 2 Tr. 58-60). Notably, while defense counsel did raise an objection during
this exchange, it was not on the basis of this testimony being irrelevant or
inadmissible other acts evidence. We turn now to analyzing these four challenged
instances of other acts evidence.2
{¶29} As an initial matter, we note that Detective Flanagan indicated during
his testimony that these alleged activities with prostitutes were illegal. “The Ohio
Supreme Court has held that, ‘[a]s a general rule, the introduction of evidence
tending to show that a defendant has committed another crime wholly independent
of the offense for which he is on trial is prohibited.’” (Emphasis sic.) State v.
Sutherland,
92 Ohio App.3d 840, 847
,
637 N.E.2d 366, 370
(3d Dist. 1994), quoting
State v. Adams,
53 Ohio St.2d 223, 230
,
374 N.E.2d 137, 141
(1978), judgment
vacated in part on other grounds in Adams v. Ohio,
439 U.S. 811
,
99 S.Ct. 69
, 58
2
There is yet another instance of the State bringing up Timothy’s potential association with prostitutes that
is not challenged on appeal. While cross-examining Brandee, the prosecution stated, “Well what about the
one time and I can play it for you in the interview, if you’d like, that you shared with Detective Flanagan,
about when Tim Bruce got a prostitute and the prostitute gave him his money back. Do you remember
sharing that with Detective Flanagan?” (Mar. 2 Tr. 106-107). In her testimony, Brandee confirmed that she
had heard about this situation and indicated that the information she had was secondhand. Thus, the State
brought up the topic of Timothy’s potential association with prostitutes on five occasions while questioning
four different witnesses.
-19-
Case No. 14-22-
11
L.Ed.2d 103
(1978). “The introduction of ‘substantial evidence of the
circumstances and facts involved in the commission of [a prior] crime,’ may warrant
reversal even when the crime itself is admissible.” State v. Cantrell, 4th Dist. Ross
No. 96 CA 2255,
1997 WL 414974
, *3 (July 27, 1997), quoting Sutherland at 848.
{¶30} In this case, the jurors heard Detective Flanagan testify that Timothy’s
alleged involvement with prostitutes as detailed would constitute illegal activities.
However, these potentially illegal activities were in no way related to the charges
against him. The State returned to this highly prejudicial line of questioning on
multiple occasions. Further, beyond its irrelevance to this trial, the testimony on
this subject was, at times, vague and included secondhand information, raising
serious questions about the general reliability of a number of these statements.
{¶31} On appeal, the State points to the fact that the crime of gross sexual
imposition requires proof that the defendant “ha[d] sexual contact with another.”
R.C. 2907.05(A). In turn, the definition of “sexual contact” requires that the
touching was undertaken “for the purpose of sexually arousing or gratifying either
person.” R.C. 2907.01(B). The State argues that this testimony about Timothy’s
potential involvement with prostitutes was necessary to establish that he was
capable of arousal or sexual gratification after his traumatic brain injury. We turn
to examining this argument under the third step of the test provided in State v.
Williams,
2012-Ohio-5695, at ¶ 20
.
-20-
Case No. 14-22-11
{¶32} The third step in examining the admissibility of other acts evidence “is
to consider whether the probative value of the other acts evidence is substantially
outweighed by the danger of unfair prejudice.” See Williams, supra, at ¶ 16.
Probative value is measured partially by the relative scarcity of
evidence on the same issue; that is, if the state offers evidence for
which there is an evidentiary alternative that has substantially similar
or greater probative value but is less prejudicial, the probative value
of the state’s evidence must be discounted. [State v. Creech,
150 Ohio
St.3d 540
,
2016-Ohio-8440
,
84 N.E.3d 981
, ¶ 22], citing Old Chief v.
United States,
519 U.S. 172
,
117 S.Ct. 644
,
136 L.Ed.2d 574
(1997).
‘The danger of unfair prejudice is then weighed against this reduced
probative value.’ Creech at [¶ 22].
State v. Day, 8th Dist. Cuyahoga No. 108435,
2020-Ohio-5259
, ¶ 46, quoting State
v. Alexander, 8th Dist. Cuyahoga No. 106556,
2019-Ohio-451, ¶ 36
. Further,
[s]exually deviant acts * * * carry a severe social stigma, leading to
an increased risk that other sexually deviant acts by the defendant will
influence a jury to convict because it assumes the defendant is a bad
man.
State v. Morris,
2012-Ohio-6151
,
985 N.E.2d 274
, ¶ 56 (9th Dist.).
{¶33} Even assuming that the State needed to engage in special efforts to
establish that Timothy was capable of arousal due to his traumatic brain injury and
that this was a valid use of other acts evidence,3 there were ample evidentiary
3
The State argues that evidence about whether Timothy was capable of sexual arousal was necessary because
Kimberly testified that “it was physically ‘impossible’ for Appellant [Timothy] to commit the crimes.”
(Appellee’s Brief, 8, citing Mar. 2 Tr. 19, 24, 32). However, Kimberly’s trial testimony did not assert that
Timothy’s traumatic brain injury rendered him incapable of sexual arousal or gratification. Rather, her
testimony suggested that Timothy was physically incapable of dragging R. up the stairs as R. had alleged.
We also note that the State was the party that introduced evidence at trial of Timothy’s potential impotence.
(See Mar. 2 Tr. 106-107). Nonetheless, we will consider the State’s argument on its own terms.
-21-
Case No. 14-22-11
alternatives to this testimony about prostitution that could establish that he was
capable of arousal or sexual gratification. Further, the evidentiary alternatives not
only existed but were introduced at trial and explored at length. For example, while
being cross-examined by the State, Kimberly affirmed that Timothy was “very
sexually driven as a result of his TBI [traumatic brain injury]”; that Timothy “wants
sexual gratification”; and that he had pornographic movies in his possession for the
purpose of attaining sexual gratification. (Mar. 2 Tr. 57-58, 69).
{¶34} The State also introduced an abundance of evidence about Timothy’s
possession of pornographic materials. Later in our analysis, we will discuss several
challenges that Timothy raises to the admission of some of the evidence about these
pornographic materials. However, Timothy does not challenge all of this evidence
as he concedes that much of it relates to the charge of disseminating matter harmful
to juveniles or aspects of R.’s allegations. For example, he does not challenge the
evidence that seventy different pornographic items were discovered on his laptop;
that he had pornographic DVDs in his possession; that he had access to
pornographic materials on his cable television; and that he had hard core
pornographic videos.
{¶35} This unchallenged evidence about these pornographic materials, at
least bears some relationship to the allegations raised by R. and is relevant to a
charge against Timothy. Again, even assuming the State had to take special efforts
in this case to establish that Timothy was capable of arousal, the availability of
-22-
Case No. 14-22-11
ample evidentiary alternatives to establish this fact renders this unfairly prejudicial
testimony about prostitutes completely unnecessary and reduces to near
nonexistence any arguable probative value that this challenged testimony may have
had. The danger of unfair prejudice far outweighs any arguable probative value
possessed by this evidence. “A strict interpretation” of the allowable uses of other
acts evidence “does not permit such cumulative or ‘piled on’ evidence.” State v.
Strong,
119 Ohio App. 31, 37
,
196 N.E.2d 801, 806
(5th Dist. 1963).
{¶36} In summary, this highly prejudicial testimony about Timothy’s
potential association with prostitutes was not relevant to the charges at trial.
Williams,
2012-Ohio-5695, at ¶ 20
. This testimony does not further any of the
permissible purposes for the introduction of other acts evidence that are set forth in
Evid.R. 404(B).4 This testimony is far more unfairly prejudicial than valuable as
probative evidence of a fact at issue at trial. For these reasons, the evidence related
to Timothy’s alleged activities with prostitutes should not have been elicited at trial
but, once introduced, should have prompted an objection and been excluded.
{¶37} Fifth Instance: After questioning Kimberly about Timothy’s prior
involvement with prostitutes, the prosecutor inquired into an incident in which
4
During closing arguments, the State returned to the topic of Timothy’s potential involvement with
prostitutes, saying that Kimberly “knows he’s gotten prostitutes and yet [R.] * * * continues to go over there”
for babysitting. (Emphasis added.) (Mar. 2 Tr. 154). See also Id. at 158. In this statement, the prosecutor
directly linked the testimony about the adult escorts to evaluation of whether Timothy was a suitable childcare
provider or was dangerous given the propensities indicative of these illegal or harmful behaviors. Thus, the
prosecutor’s own use of this information in closing arguments suggests that this testimony was impermissible
propensity evidence.
-23-
Case No. 14-22-11
Timothy had made a comment to Kimberly that she later reported in an interview to
Detective Flanagan. Timothy challenges the resulting testimony as being “[i]n the
same vein” as the testimony about Timothy’s alleged association with adult escorts.
(Appellant’s Brief, 11). The challenged exchange reads as follows:
[Prosecutor:] Did you ever tell Detective Flanagan, as you were
explaining your understanding of Tim Bruce’s sexual desires and
proclivities that Tim had shared with you that—or you had shared
with Detective Flanagan, I should say, that Tim told a woman he
wanted to pin her legs behind her head like a Tyson chicken?
[Kimberly:] Yeah.
[Prosecutor:] Tell me about that incident.
[Kimberly:] Um, he has said things inappropriately sexually which is
common with head injuries but saying it and doing it’s two different
things.
[Prosecutor:] So, you just said as a nurse—you’re a home healthcare
nurse. We’re going to get into that here in a minute but you just said
people with brain injuries, they sometimes say sexual things that are
in appropriate. Is that accurate?
[Kimberly:] Yes.
***
[Prosecutor:] Let me ask you this. So you know about the porn. You
know about the prostitutes. You know about, as you said, people with
traumatic brain injuries are likely to say inappropriate things and yet
you still sent you granddaughter, R[.], over to stay with him?
[Kimberly:] Yes.
[Prosecutor:] Did you think that was appropriate?
[Kimberly:] Yes or I wouldn’t have done it.
-24-
Case No. 14-22-11
[Prosecutor:] Did you leave [R.] with Mr. Bruce by herself?
[Kimberly:] Yes.
(Emphasis added.) (Mar. 2 Tr. 60-61.)5 After this line of inquiry, the prosecution
tied Timothy’s comment, his possession of pornographic materials, and his possible
association with prostitutes into questions about Kimberly’s evaluation of
Timothy’s character. The conclusion of this exchange suggests that this testimony
was elicited for the impermissible purpose of suggesting that Timothy had a
propensity to commit the charged crimes because of these prior activities.
{¶38} Timothy’s comment, as relayed through Kimberly, was derived from
a situation that was extraneous to the alleged acts that formed the basis of the
charges in this case. As noted previously, the prosecution already had an abundance
of evidence that could be relied upon to establish that Timothy was capable of
arousal or sexual gratification, making this testimony unnecessary for the purpose
offered by the State on appeal for the admission of this evidence. Finally, this
comment was tied into an assessment of Timothy’s propensities.
[The] purpose [of propensity evidence] is to demonstrate that the
accused has a propensity or proclivity to commit the crime in
question. See [State v.] Curry[,
43 Ohio St.2d 66
,] 68,
330 N.E.2d 720
[(1975)]. Evid.R. 404(B) categorically bars the use of other-acts
evidence to show propensity.
5
Timothy also challenges this testimony from Kimberly as containing inadmissible hearsay. However, in
this appeal, we need only address whether this testimony was permissible as other acts evidence.
-25-
Case No. 14-22-11
Hartman, supra, at ¶ 21
. See State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-
Ohio-5241, ¶ 82-84 (“[T]here is a fundamental difference between a man’s desire
to engage in sexual activity with * * * [an] adult * * * and his desire to rape [a] * *
* little girl.”), quoting Morris, supra, at ¶ 28. For these reasons, the testimony about
this statement should have prompted an objection from defense counsel and should
have been excluded at trial.
B. Pornographic Materials
{¶39} In his brief, Timothy acknowledges that R. had alleged that he had
shown her pornographic materials. Timothy also admits that the testimony about
his possession of pornography that he does not challenge in this appeal was relevant
to the charge against him for disseminating matter harmful to juveniles. See State
v. Gawron, 7th Dist. Belmont No. 20 BE 0009,
2021-Ohio-3634
, ¶ 45. For these
reasons, he does not challenge all of the references to his possession of pornography
that were made at trial. However, he challenges three main portions of Detective
Flanagan’s trial testimony that were related to his possession or use of pornographic
materials. We will address the first two portions of Detective Flanagan’s testimony
together before we address the third challenged portion of his testimony.
{¶40} First and Second Instances: Before the prosecution elicited the
challenged portions of testimony, Detective Flanagan was asked whether he
discovered materials in Timothy’s possession that could corroborate R.’s allegations
that Timothy had exposed her to pornography.
-26-
Case No. 14-22-11
As a result of our investigation, we were able to learn that there were
quite a few pornographic images on that computer. In fact, 70
different items were tagged for pornography. These included
websites, videos, adult chat rooms and adult webcams. * * *
The investigation revealed that Mr. Bruce did have cable service at
that apartment. That cable service allowed him to access premium
channels and adult channels, so he did have access to pornographic
movies. He, also, had a DVR device as part of his cable package
which would allow him to download various movies.
While I was searching the bedroom, I noticed that the cable box was
on top of a small stand. When I opened the bottom drawer of the
stand, I found pornographic videos in the stand. When I looked at the
contents of the video, I found that the—they were DVD’s. It did
match what was represented on the DVD cover. These were not
illegal. They were hard core pornography but they were not illegal
pornography, so the covers were photographed but the videos were
not seized.
(Mar. 1 Tr. 156-157).6 After this statement, the prosecution turned to eliciting the
first portion of Detective Flanagan’s testimony that Timothy challenges on appeal
by asking for the titles of these videos. In response, Detective Flanagan stated:
Um, one was called ‘Sex Star MILF.’ MILF is an acronym part of for
mom I’d like to f**k. The other three videos were essentially foot
fetish videos. One was called ‘Welcome to Footville.’ The other one
was ‘Foot Sex.’ And the third was ‘My Feet-Your Meat, Volume
Three.’
(Mar. 1 Tr. 157). In the second portion of challenged testimony, the prosecution
returned to the topic of Timothy’s foot fetish videos. Detective Flanagan testified
6
Importantly, Timothy does not challenge this portion of Detective Flanagan’s testimony on appeal. Our
ruling on the admissibility of the foot fetish pornography does not address this quoted testimony. We quote
this portion of his testimony only because it provides the context for the subsequent testimony about the foot
fetish pornography that Timothy does challenge on appeal. Appellant’s Brief, 11.
-27-
Case No. 14-22-11
that he took several pictures of the pornographic films that were discovered in
Timothy’s possession. The following exchange occurred:
[Prosecutor:] State’s Exhibit 25, what is depicted?
[Detective Flanagan:] This is Welcome to Footville. This is one of
the three foot fetish videos that were contained in that drawer.
[Prosecutor:] Now, Detective, you used the word fetish. Would you
spell that for purposes of the record?
[Detective Flanagan:] F-E-T-I-S-H.
[Prosecutor:] And you’ve had some training about fetishes?
[Detective Flanagan:] I have.
[Prosecutor:] And what is a fetish?
[Detective Flanagan:] A fetish video is, essentially, a video that
creates sexual arousal by focusing on body parts other than the genital
area, by focusing on objects or items or by focusing on some type of
a sexually based act or theme. Um, with respect to this, when you’re
talking about body parts, generally, in most of your fetish videos,
you’re featuring women’s breasts, legs, hair and particularly feet.
Studies have indicated, roughly, 47 percent of your fetish videos are
foot fetish videos.
[Prosecutor:] What was that percentage?
[Detective Flanagan:] Approximately 47 percent.
[Prosecutor:] State’s Exhibit 26, what is depicted?
[Detective Flanagan:] This is the second video called Foot Lovers.
[Prosecutor:] And does it have depictions of a female in a state of
undress?
[Detective Flanagan:] It does.
-28-
Case No. 14-22-11
[Prosecutor:] And you see bare skin?
[Detective Flanagan:] Yes, you can.
[Prosecutor:] State’s Exhibit Number 27, what is depicted here?
[Detective Flanagan:] This is the third video titled My Feet-Your
Meat, Volume 3 and, again, this is something where, if you look on
the cover, you can see that you have exposed male genitals in close
proximity to women’s feet which is, essentially, what you have in
these type of fetish films.
(Mar. 1 Tr. 175-177). Explicit pictures of several of these DVD movie covers were
introduced into evidence. We note that Detective Flanagan was asked whether R.
“disclosed any titles of these DVD’s that [he] * * * had found[.]” Id. at 185. In
response, he answered that he had never interviewed R. and affirmed that she did
not identify any of “these pornographic materials as the ones she had seen.” Id. at
186.
{¶41} The evidence of Timothy’s possession or use of pornography was
extensive. Detective Flanagan testified about the discovery and nature of Timothy’s
pornographic materials. Brandee testified that she became aware of Timothy’s
pornography when she was cleaning his house and was asked why he might have
had these materials. Among other things, the State questioned Kimberly about
comments Timothy had made about his pornography; about whether she and
Timothy were “involved in pornography” during their marriage; about whether
-29-
Case No. 14-22-11
Timothy had given pornography to Randy when he was a child; and about why
Timothy had may have had pornographic videos. (Mar 2 Tr. 51).7, 8
{¶42} Timothy also argues that the testimony about his possession of foot
fetish pornography “had nothing to do with the allegations” against him.
(Appellant’s Brief, 11). Testimony about pornography discovered in a defendant’s
possession has been found to be admissible where these materials depict acts that
are “similar in nature to the sexual acts committed with” the victim. State v.
Voorhis, 3d Dist. Logan No. 8-07-23,
2008-Ohio-3224, ¶ 73
. See also State v.
Mincey,
2023-Ohio-472
,
208 N.E.3d 1043, ¶ 31
(1st Dist.); State v. Eichorn, 5th
Dist. Morrow No. 02 CA 953,
2003-Ohio-3415
, ¶ 34.
{¶43} Beyond containing similar acts, the pornographic materials in these
cited cases also depicted acts between adults and children that were roughly
paralleled by an adult defendant and a child victim in the criminally charged acts.
Voorhis at ¶ 73; Eichorn, supra, at ¶
Mincey at ¶ 31
. However, in the case presently
before this Court, the evidence produced at trial does not suggest that this foot fetish
pornography was similar to the illegal acts that were alleged by R. or depicted any
7
In this summary, we do not include the testimony regarding R.’s allegations that Timothy had shown her
pornographic materials.
8
In this summary, we also do not include the references to Timothy’s pornography that were elicited by
defense counsel on cross-examination. For example, defense counsel questioned Detective Flanagan about
whether Timothy’s pornographic materials were “VCR or were they all CD’s,” eliciting this information:
“[t]he ones I found were the CD-DVD type. From speaking to family, I was told that at one time Mr. Bruce
had a very extensive pornographic VCR collection but I did not find that in the apartment.” (Mar. 1 Tr. 185).
-30-
Case No. 14-22-11
sexual acts between adults and children. See State v. Clemons,
94 Ohio App.3d 701,
710
,
641 N.E.2d 778, 784
, (12th Dist.).
{¶44} Further, no evidence at trial suggests that the testimony about this foot
fetish pornography was introduced to corroborate any of the allegations that R. had
raised regarding the illicit materials that Timothy showed her. R.’s allegations
contained very little information about the content of the pornographic videos that
she viewed with Timothy. See also State v. Ross, 2d Dist. Montgomery No. 22958,
2010-Ohio-843
, ¶ 112. On cross-examination, defense counsel elicited testimony
that Detective Flanagan never had the opportunity to interview R. to determine if
any of the pornographic materials that Timothy had showed her were from a movie
of which she knew the title. He also testified that he did not, during his
investigation, receive any information from R. that would indicate whether she
viewed any of these particular movies or DVDs.
{¶45} Curiously, defense counsel elicited information from Detective
Flanagan on cross-examination that should have been the basis of an earlier
objection to the initial introduction of this challenged testimony on direct
examination. Cross-examination is of limited effectiveness in counteracting the
unfairly prejudicial effects of introducing irrelevant testimony about foot fetish
pornography at trial and may have only served to belabor the discussion of this topic
in this case. In the absence of another discernible reason, the introduction of this
-31-
Case No. 14-22-11
testimony would ultimately serve the purpose of establishing that Timothy was a
“sex-crazed pervert.” Morris, supra, at ¶ 56.9
{¶46} Third Instance: The State questioned Detective Flanagan about
Timothy’s use of cable television to view pornographic materials after the charges
in this case had been filed.
[Prosecutor:] You made mention that Mr. Bruce had access to cable.
[Detective Flanagan:] Yes.
[Prosecutor:] Um, did you do any investigation related to his access
to * * * cable? Like, did you do any follow up investigation?
[Detective Flanagan:] Yes. He had access through a cable company
called Spectrum. They were the ones that confirmed that he was a
cable subscriber and that he did have access to Premium packages and
Pay-Per-View movies and that through these packages and Pay-Per-
Views, he also had access to adult entertainment.
[Prosecutor:] So, as it related to the whole porn question, you found
porn in his room. Correct?
[Detective Flanagan:] Correct.
[Prosecutor:] And then you, also, found that he had access to
downloads from the Internet which could or could not include porn.
Correct?
[Detective Flanagan:] Correct.
9
During closing arguments, the prosecution returned to the topic of the foot fetish videos, saying “[t]hose
particular videos, Detective Flanagan, he told me they were fetish videos. He even used the percentage. He
said 47 percent of fetish videos involve feet and attractions.” (Mar. 2 Tr. 159). Given the irrelevance of this
information to the facts of this case, the content of the record provides no other plausible reason to return to
this statistic during closing arguments except to highlight Timothy’s personal peccadillos.
-32-
Case No. 14-22-11
[Prosecutor:] And it’s my understanding your first testimony was you
continued to investigate this matter all the way up to and to the present
when we started trial. Is that accurate?
[Detective Flanagan:] That’s correct.
[Prosecutor:] Does Mr. Bruce still have this access to cable or online
downloads?
[Detective Flanagan:] Not through Spectrum. He terminated his
membership in November of 2021 which, in and of itself, is not
unusual. But then I learned that the previous month in October of
2021 he ordered $292 worth of Pay-Per-View movies. And then the
following month his account was terminated.
[Prosecutor:] And I just want to make sure I have that number
correctly. How much was it, again?
[Detective Flanagan:] Approximately, $292.
(Emphasis added.) (Mar. 1 Tr. 159-160). See also Id. at 182.
{¶47} We note that R. alleged that Timothy had shown her pornographic
materials. While R. did not describe the contents of these videos in detail, she did
describe how and where Timothy showed her these videos. R. testified, “he had
them [the videos] saved on his TV, I think. His TV, like, where you can save things
that are on TV like Roku.” (Mar. 1 Tr. 111). She also stated that Timothy had
showed her illicit videos on his computer. For this reason, some testimony that
Timothy was able to access pornographic materials on his television and had
accessed movies on Pay-Per-View could arguably provide some corroboration to
R.’s testimony.
-33-
Case No. 14-22-11
{¶48} However, the testimony regarding the amount of money he spent on
Pay-Per-View movies after criminal charges were brought against him is irrelevant
in the absence of any testimony that establishes that these $292.00 of purchases even
included pornographic movies. Based on the testimony at trial, this information
only establishes that Timothy watched a lot of movies, which is irrelevant to any
fact at issue in this case. But beyond this issue, the context of this testimony at trial
invites the jury to speculate about the content of these movies, suggesting that
Timothy did not simply watch a lot of movies on Pay-Per-View but that he watched
a lot of pornographic movies on Pay-Per-View when the evidence does not establish
such a conclusion.
{¶49} If the prosecution could not establish that these purchases were of
pornographic movies, then the extent of Timothy’s Pay-Per-View movie watching
goes beyond the plausibility of R.’s allegations and could only stoke speculation in
this case.10 Further, if the prosecution could establish that the Pay-Per-View movies
10
We reach this conclusion in part because of how the prosecutor returned to this cable bill during closing
arguments, saying Detective Flanagan “found out that Tim Bruce had spent $292 in that last month that he
had the Pay-Per-View. Apparently, he either didn’t want to pay it or wasn’t happy with his views but he
terminated his contract as an outstanding bill because, you see, that Pay-Per-View was how he could get
pornography.” (Mar. 2 Tr. 158-159). Initially, the fact that this bill went unpaid is irrelevant to this case.
Further, the earlier testimony about these Pay-Per-View purchases does not clearly establish that Timothy
had, in fact, accessed pornographic movies on his television but only established that he could have accessed
such materials. Again, in the absence of additional testimony that established he did access pornographic
materials, this information invites the jury to speculate about the nature and content of these Pay-Per-View
movies. It also established an impermissible character trait of Timothy that the prosecutor freely used due to
a lack of defense objection.
-34-
Case No. 14-22-11
included pornographic materials, the admission of such evidence would still be
subject to the standards of Evid.R. 402 and Evid.R. 403.
C. Other Acts Evidence: Alleged Drug Use
{¶50} On appeal, Timothy challenges three main instances in which the
prosecution elicited information about Timothy’s prior history of drug use. We will
consider the first two instances in one analysis before proceeding to a separate
analysis of the third instance.
{¶51} First and Second Instances: First, R.’s father and Timothy’s son,
Randy, testified that he had surrendered custody of R. to his mother, Kimberly
because he had entered rehabilitation in Florida to address his drug addiction.
Randy indicated that he had a distant relationship with his father because Timothy
“couldn’t accept” that he “wanted to go get clean.” (Feb. 28 Tr. 53, 54). The
following exchange between the prosecutor and Randy then occurred:
[Prosecutor:] Randy, you said that you’re very distant from your
father. You said, in your own words, something about some people
couldn’t accept that you were going to step away from the journey of
addiction. Is that what you were referring to?
[Randy:] Yep.
[Prosecutor:] What do you mean by that?
[Randy:] Initially, when I went to treatment, the first couple of
months I was down there, I would occasionally get phone calls of I
just wish you could be back up here. I miss hanging out. You know,
I miss catching a buzz, doing this, doing that, and it just seemed to be
that, you know, the old life was, you know, not something he could
let go of. At least on my end of the spectrum.
-35-
Case No. 14-22-11
[Prosecutor:] You used the word buzz?
[Randy:] Yes.
[Prosecutor:] What does that mean?
[Randy:] We used to smoke pot together.
[Prosecutor:] And your father wanted to continue that kind of
behavior smoking pot. Is there another name for pot? The technical
term?
[Randy:] Marijuana.
[Timothy Bruce:] Medical.
[Prosecutor:] And your father wanted to do that with you and you
didn’t want to do it anymore?
[Randy:] Correct.
(Feb. 28 Tr. 57-58). Second, the State brought up the issue of Timothy’s prior drug
use again, questioning Kimberly about whether she was aware that Randy and
Timothy had used drugs together in the past:
[Prosecutor:] Do you know that your—Tim Bruce used drugs with
your son, Randy?
[Kimberly:] When he was a kid?
[Prosecutor:] I didn’t give a specification yet. I’m just asking, did
you know if he used drugs? Tim Bruce used drugs with your son,
Randy?
[Kimberly:] I know they have as an adult smoked pot.
-36-
Case No. 14-22-11
(Mar. 2 Tr. 52). On appeal, the State argues that this testimony “elaborated upon
the challenging grooming family dynamic” that Timothy “exacted upon the victim.”
(Appellee’s Brief, 7). However, the testimony elicited does not indicate that
Timothy “groomed” Randy for drug use in any way or even introduced Randy to
drug use. Rather, this testimony only indicates that Randy, “as an adult,” had used
drugs alongside his father. (Mar. 2 Tr. 52). Beyond the fact that this testimony does
not establish that Timothy groomed Randy for drug use, the act of introducing an
adult to drug use is not similar to grooming a child for sexual abuse.
{¶52} The State’s argument essentially admits that this evidence was
introduced in an attempt to establish that Timothy had groomed Randy for drug
abuse and that this prior behavior suggests that he may have groomed R. for sexual
abuse. In other words, evidence of these other acts were introduced to suggest that
Timothy had the character of a predator and “acted in accordance with th[is]
character” in this case. Evid.R. 404(B)(1). This is precisely the kind of evidence
that is prohibited by Evid.R. 404(B)(1). The State also does not allege that this
evidence was introduced for any of the permissible reasons to use other acts
evidence that are listed in Evid.R. 404(B)(2). For this reason, we conclude that this
other acts testimony was not admissible evidence under Evid.R. 404(B).
{¶53} The State also argues that defense counsel broached the topic of
Randy’s relationship with Timothy on cross-examination, opening the door for the
prosecution to engage in this line of inquiry.
-37-
Case No. 14-22-11
Under the opened-the-door doctrine, “[t]he introduction of otherwise
inadmissible evidence * * * ‘is permitted * * * “to the extent necessary
to remove any unfair prejudice which might otherwise have ensued
from the original evidence.””’ State v. Bronner, 9th Dist. Summit No.
20753,
2002-Ohio-4248
, ¶ 73, quoting United States v. Winston,
447
F.2d 1236, 1240
(D.C. Cir. 1971), quoting California Ins. Co. v. Allen,
235 F.2d 178, 180
(5th Cir. 1956).
State v. Cotton, 12th Dist. Butler No. CA2022-05-055,
2023-Ohio-46, ¶ 15
.
[While] ‘[t]he introduction of evidence of other bad acts can be
prejudicial and is generally prohibited by Evid.R. 404(B) * * *, courts
will not find prejudicial error when the defense ‘opens the door’ to
such evidence.
(Citations omitted.) State v. Brooks, 9th Dist. Medina No. 07 CA 0111-M, 2008-
Ohio-3723, ¶ 53, quoting State v. Moore, 8th Dist. Cuyahoga No. 80416, 2003-
Ohio-1154, ¶ 23.
{¶54} However, “the doctrine [of opening the door] is ‘dangerously prone to
overuse.’” Bronner, supra, at ¶ 72, quoting
Winston, supra, at 1240
, quoting United
States v. McClain,
440 F.2d 241, 244
(C.A. D.C. 1971).
[J]ust because a door creaks open, it does not allow a parade to march
through. “It has been observed that ‘opening the door is one thing.
But what comes through the door is another. Everything cannot come
through the door.’” State v. Bronner, 9th Dist. Summit No. 20753,
2002-Ohio-4248
,
2002 WL 1906507
, ¶ 72, quoting United States v.
Winston,
447 F.2d 1236, 1240
(D.C. Cir. 1971). “‘[T]he doctrine is
to prevent prejudice and is not to be subverted into a rule for injection
of prejudice.’” (Emphasis sic.) Id. at ¶ 73, quoting
Winston at 1240
.
State v. McDaniel,
2021-Ohio-724
,
168 N.E.3d 910, ¶ 13
(1st Dist.).
{¶55} In this case, the State questioned Randy about his own history of drug
use on direct examination. On cross-examination, the Defense questioned Randy
-38-
Case No. 14-22-11
about his relationship with Timothy presumably to address issues of potential bias
against Timothy. Randy’s answer did not portray Timothy in a favorable light.
Given that the State had already questioned Randy about his prior drug use on direct
examination, we note that the prejudice from Randy’s answer on cross-examination
primarily accrued to Timothy rather than Randy.
{¶56} Further, even if the Defense opened the door for the prosecution to
discuss the relationship between Randy and Timothy, the exchange between the
State and Randy elicited information that went beyond what was necessary to
understand their “family dynamic * * *.” (Appellee’s Brief, 6). See also Bronner,
supra, at 72-76. This line of inquiry did not open the door for an exchange about
Timothy’s history of drug use. The State’s questions about Timothy’s history of
drug use were not necessary to address the testimony elicited from Randy during
cross-examination and sought unfairly prejudicial information that was ultimately
irrelevant to any fact of consequence in this case.
{¶57} Third Instance: During the testimony of Detective Flanagan, the
prosecution again returned to the topic of Timothy’s prior drug use:
[Prosecutor:] You heard Randy[’s] * * * testimony that his father
encouraged him to, quote, get buzzed, end quote. Did you hear that
testimony?
[Detective Flanagan:] Yes.
[Prosecutor:] Did you find any evidence of drugs or what have you
in Mr. Bruce’s home * * *?
-39-
Case No. 14-22-11
[Detective Flanagan:] There was one small item. It appeared to be
drug paraphernalia. I believe it was related to marijuana use. We did
not find any type of illegal narcotics or illegal prescription meds.
(Mar. 1 Tr. 160). In this case, Timothy was not indicted on any charge that was
related to illegal drug use. Further, R.’s allegations did not contain any mention of
Timothy using any illegal drugs. Thus, “nothing connects the drug-related evidence
with the charged offenses” in this case. State v. Grate,
164 Ohio St.3d 9
, 2020-
Ohio-5584,
172 N.E.3d 8, ¶ 133
.
{¶58} The State asserts that Detective Flanagan’s testimony about the drug
paraphernalia was “a demonstration of [the] investigative thoroughness” of law
enforcement in this case. (Appellee’s Brief, 7). However, the State does not cite to
any caselaw that suggests establishing “investigative thoroughness” is a justification
for the introduction of such testimony.
Id.
Under the facts of this case, the discovery
of drug paraphernalia was in no way necessary to explain the actions of law
enforcement as they conducted their investigation. This prejudicial evidence was
irrelevant to any fact of consequence that was at issue at trial and should have
prompted an objection by defense counsel. See State v. Tench,
156 Ohio St.3d 85
,
2018-Ohio-5205
,
123 N.E.3d 955, ¶ 173-174
. “Evidence which is not relevant is
not admissible.” Evid.R. 402.
{¶59} In summary, the parties presented evidence at trial on three days.
Randy testified on February 28; Detective Flanagan testified on March 1; and
Kimberly testified on March 2. Thus, the prosecution returned to the issue of
-40-
Case No. 14-22-11
Timothy’s prior drug use on each day of his trial. Randy’s testimony did not open
the door for the State to repeatedly bring up Timothy’s prior history of drug use on
three separate days during the examination of three different witnesses. Testimony
about Timothy’s prior drug history is ultimately irrelevant to the disposition of this
case and was unfairly prejudicial.
II. Deficient Performance Analysis: Opinion Testimony
{¶60} “In our system of justice it is the fact finder, not the so-called expert
or lay witnesses, who bears the burden of assessing the credibility and veracity of
witnesses.” State v. Eastham,
39 Ohio St.3d 307, 312
,
530 N.E.2d 409
(1988). For
this reason, “[o]pinion testimony regarding another witness’s credibility ‘infringe[s]
upon the role of the fact finder, who is charged with making determinations of
veracity and credibility.’” State v. Smith,
2017-Ohio-9283
,
102 N.E.3d 1111, ¶ 46
(10th Dist.), quoting
Eastham at 312
. “Generally, the opinion of a witness as to
whether another witness is being truthful is inadmissible.” State v. Essa,
194 Ohio
App.3d 208
,
2011-Ohio-2513
,
955 N.E.2d 429, ¶ 90
(8th Dist.).
{¶61} However, Evid.R. 608(A) does permit some opinion evidence
regarding the credibility of a witness under specified circumstances and reads as
follows:
The credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is admissible
-41-
Case No. 14-22-11
only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
Evid.R. 608(A). “While Evid.R. 608(A) permits testimony regarding a witness’s
general character or reputation for truthfulness, the rule prohibits testimony
regarding a witness’s truthfulness on a particular occasion.” State v. Pawlak, 8th
Dist. Cuyahoga No. 99555,
2014-Ohio-2175, ¶ 41
.
{¶62} A distinction exists between lay and expert witnesses. State v. McKee,
91 Ohio St.3d 292
,
2001-Ohio-41
,
744 N.E.2d 737
, fn. 2 (2001). “[L]ay testimony
‘results from a process of reasoning familiar in everyday life,’ while expert
testimony ‘results from a process of reasoning which can be mastered only by
specialists in the field.’”
Id.,
quoting State v. Brown,
836 S.W.2d 530, 549
(Tenn.
1992), superseded on other grounds by statute.
{¶63} Evid.R. 701 states that the testimony of a lay witness “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.” Evid.R. 701.
Lay opinions, inferences, impressions, or conclusions are admissible
if they are those that a rational person would form on the basis of the
observed facts and if they assist the jury in understanding the
testimony or delineating a fact in issue.
State v. Marshall, 8th Dist. Cuyahoga No. 100736,
2015-Ohio-2511
, ¶ 25. Evid.R.
701 does not prohibit a lay witness from “testify[ing] about another’s emotional
state when the testimony is based upon personal observations.” State v. Kovac, 150
-42-
Case No. 14-22-
11
Ohio App.3d 676
,
2002-Ohio-6784
,
782 N.E.2d 1185, ¶ 56
(2d Dist.). But in
accordance with the general rule, “lay witnesses are prohibited from testifying as to
another witness’s veracity.”
Pawlak, supra, at ¶ 113
, citing Kovac at ¶ 32.
{¶64} “The state elicits such opinion evidence at its peril, particularly where
the evidence essentially involves a credibility contest and significant independent
evidence of the offenses * * * is lacking.” State v. Kennedy, 11th Dist. Ashtabula
No. 2021-A-0030,
2022-Ohio-3369, ¶ 20
, quoting State v. Miller, 2d Dist.
Montgomery No. 18102,
2001 WL 62793
, *7 (June 26, 2001). However, while
“having a witness testify that the victim is telling the truth is an error, it is harmless
error if the victim testifies and is subject to cross-examination.” State v. Hupp, 3d
Dist. Allen No. 1-08-21,
2009-Ohio-1912, ¶ 20
.11, 12 This is because,
[w]hen the victim testifies, the jury is able to hear the victim’s
answers, witness her demeanor and judge her credibility completely
independent of the other’s testimony concerning the veracity of the
victim.
11
In State v. Boston, the Ohio Supreme Court found reversible error where an expert witness gave
impermissible opinion testimony regarding the veracity of allegations of sexual abuse that were raised by a
child victim. State v. Boston,
46 Ohio St.3d 108, 129
,
545 N.E.2d 1220
(1989), overruled, in part, on other
grounds by State v. Dever,
64 Ohio St.3d 401
,
1992-Ohio-41
,
596 N.E.2d 436
(1992). In Hupp, this Court
considered Boston in the context of impermissible opinion testimony that was given by a lay witness.
Hupp,
supra, at ¶ 18-20
. We concluded that this impermissible opinion testimony constituted harmless error
because the child victim testified at trial and was cross-examined. Id. at ¶ 20. However, in the case presently
before us, Timothy essentially raises a cumulative error argument to establish prejudice for his ineffective
assistance of counsel claim. Appellant’s Brief, 26. Under the cumulative error doctrine, multiple harmless
errors can provide a basis for a reversal. State v. Line, 3d Dist. Allen No. 1-19-07,
2019-Ohio-4221, ¶ 16
.
12
We note that courts have held, in cases with varying fact patterns, that the admission of impermissible
opinion testimony “is more likely to be prejudicial if the case was essentially a ‘credibility contest’ between
the victim and the defendant without independent evidence of the alleged crimes.”
Kovac, supra, at ¶ 40
,
quoting State v. Palmer, 9th Dist. Medina No. 2323-M,
1995 WL 48442
(Feb. 8, 1995). See also State v.
Johnson, 5th Dist. Stark No. 2016CA00069,
2016-Ohio-8261, ¶ 54
; State v. Richcreek,
196 Ohio App.3d
505
,
2011-Ohio-4686
,
964 N.E.2d 442, ¶ 108
(6th Dist.); State v. Schewirey, 7th Dist. Mahoning No. 05 MA
155,
2006-Ohio-7054, ¶ 52
;
Pawlak, supra, at ¶ 116
; State v. Roush, 10th Dist. Franklin No. 12AP-201, 2013-
Ohio-3162, ¶ 62.
-43-
Case No. 14-22-11
Id. at ¶ 20. See also State v. Leigh, 6th Dist. Ottawa No. OT-16-028, 2017-Ohio-
7105, ¶ 24 (The error of admitting impermissible opinion testimony “is mitigated if
the victim testifies and is subject to cross-examination.”). Though instances of
impermissible opinion testimony may constitute harmless errors, “the law provides
that when multiple harmless errors are considered together, their combined effect
may violate a defendant’s right to a fair trial.”
Rollison, supra, at ¶ 50
. We turn
now to examining seven challenged instances of what Timothy argues was improper
opinion testimony.13
{¶65} First and Second Instances: Molly Vance (“Vance”) works for Logan
County Children Services. She conducted an initial interview with R. before
sending her to Nationwide Hospital for further investigation. During her testimony,
the following exchange occurred:
[Prosecutor:] And when you observed it [R.’s interview], what did
you observe?
[Vance:] * * * [S]he [R.] was pretty consistent with what she was
saying. It seemed very credible. Um, she stuck to her story. Could
give details. Um, so, when I left there I believed—I believed what
she said.
13
In his brief, Timothy identifies eight instances of improper opinion testimony. However, one of these
instances is challenged as an inadmissible hearsay statement and as improper opinion testimony. We will
address seven of these instances in this section and will address the eighth instance when we examine the
statements challenged as inadmissible hearsay.
-44-
Case No. 14-22-11
(Mar. 1 Tr. 130). In the second challenged instance of opinion testimony, Vance
testified that she “and the CAC [Child Advocacy Center] staff felt she [R.] was very
credible in her description.” Id. at 133.
Social workers are permitted to testify to their disposition in an
alleged sexual abuse case. See State v. Smelcer (1993),
89 Ohio
App.3d 115
[,
623 N.E.2d 1219
]. Social workers may also comment
on the consistency of an alleged victim’s statements. See In re D.D.,
Cuyahoga App. No. 89042,
2008-Ohio-222
* * *; In re W.P.,
Cuyahoga App. No. 84114,
2004-Ohio-6627
* * *; State v. Demiduk
(June 24, 1998), Columbiana App. No. 96-CO-16 [
1998 WL 355864
(7th Dist.)* * *. However, social workers may not testify as to the
truthfulness or credibility of the alleged victim.
Id.
(Emphasis sic). State v. Winterich, 8th Dist. Cuyahoga No. 89581, 2008-Ohio-
1813, ¶ 21. See also State v. Cashin, 10th Dist. Franklin No. 22424, 2009-Ohio-
6419, ¶ 20 (“[S]tatements directly supporting the veracity of a child witness are
prohibited * * *.”).
{¶66} In the first identified statement from Vance, she began by giving
permissible testimony about her observations regarding the consistency and detailed
nature of R.’s allegations. State v. McGlowan, 6th Dist. Lucas No. L-07-1163,
2009-Ohio-2160, ¶ 43
(A police detective’s lay witness testimony regarding delayed
disclosure was permissible where the detective never gave an opinion as to whether
sexual abuse occurred in that case.”); State v. L.E.F., 10th Dist. Franklin No. 13AP-
1042,
2014-Ohio-4585, ¶ 27
(“Witnesses involved in the examination of a sexual
abuse victim may comment on the consistency of the victim’s statements.”).
-45-
Case No. 14-22-11
{¶67} However, Vance concluded this statement by sharing her personal
beliefs about the veracity of R.’s allegations. Cook, supra, at ¶ 41; Winterich at ¶
23 (finding that a social worker’s “opinion that the victim ‘seemed believable’ was
improper”). Vance’s personal belief in R.’s allegations does not assist the trier of
fact in reaching a conclusion on the issue of whether sexual abuse had occurred but
intrudes on the function of the jury as trier of fact. Lawson, supra, at ¶ 17, 22. This
opinion testimony went to the central issue that the jury was to decide in this case
and was impermissible.
{¶68} In the second identified statement, Vance gave the opinions of other
staff members regarding the credibility of R.’s allegations. This testimony
presumably reflected hearsay statements that had been made by other individuals to
Vance. This testimony gave the opinions of unidentified declarants on the ultimate
issue that was to be decided by the jury in this case. Further, the jurors, who had
previously heard testimony from two CAC treatment providers, would likely have
perceived the staff of the Child Advocacy Center as authorities on the matter of
child sexual abuse allegations. For these reasons, this testimony was impermissible.
{¶69} Third Instance: The State called the nurse at R.’s school, Courtney
Thompson (“Thompson”), to testify as a witness. Thompson stated that she had
been involved when R. initially reported the allegations at school. During direct
examination, the following exchange occurred:
[Prosecutor:] Did you detect that [R.] * * * was faking?
-46-
Case No. 14-22-11
[Thompson:] No.
[Prosecutor:] Did you detect at all that [R.] * * * was just making all
this up?
[Thompson:] I don’t believe that a third grader would be able to make
all of that up unless that truly happened to her. That’s not something
I typically see.
(Mar. 1 Tr. 65-66). At trial, Thompson testified as a lay witness but gave an opinion
about what was typical for third grade victims who raise allegations of sexual abuse.
[C]ourts have permitted lay witnesses to express their opinions in
areas in which it ordinarily would be expected that an expert must be
qualified under Evid.R. 702. * * * Although these cases are of a
technical nature in that they allow lay opinion testimony on a subject
outside the realm of common knowledge, they still fall within the
ambit of the rule’s requirement that a lay witness’s opinion be
rationally based on firsthand observations and helpful in determining
a fact in issue. These cases are not based on specialized knowledge
within the scope of Evid.R. 702, but rather are based upon a
layperson’s personal knowledge and experience.
State v. Jones,
2015-Ohio-4116
,
43 N.E.3d 833
, ¶ 107 (2d Dist.), quoting McKee,
supra, at 296-297. Thus,
courts have permitted witnesses with firsthand knowledge to offer lay
opinion testimony where they have a reasonable basis—grounded
either in experience or specialized knowledge—for arriving at the
opinion expressed.
McKee at 296, quoting Asplundh Mfg. Div., a Div. of Asplundh Tree Expert Co. v.
Benton Harbor Engineering,
57 F.3d 1190
, 1198 (3d Cir. 1995).
{¶70} On direct examination, Thompson did not give any testimony that
establishes she had the knowledge or experience that was necessary to give an
-47-
Case No. 14-22-11
opinion regarding what was typical for a third grader when disclosing allegations of
sexual abuse. State v. Sanchez, 11th Dist. Ashtabula No. 2018-A-0097, 2020-Ohio-
5576, ¶ 83. In fact, prior to these challenged statements, Thompson’s testimony
indicated that R.’s allegations came during the “first week of [Thompson’s] * * *
first year” of being a school nurse. (Mar. 1 Tr. 52). Thompson also indicated that
this was her first-time reporting allegations of sexual abuse as a mandated reporter.
{¶71} Further, on cross-examination, Thompson confirmed that she had not
previously “been involved in a situation like this before where a child made
allegations[.]” (Mar. 1 Tr. 66).14 Since Thompson had not previously dealt with a
situation in which a child had raised sexual abuse allegations, she was clearly not
qualified to give an opinion about what was typical in such cases. See also Jones,
supra, at ¶ 108 (A police detective was permitted to testify about what was typical
for child victims in sexual abuse cases where he had extensive experience in similar
cases).
{¶72} Beyond this initial issue, courts have also found testimony about the
rarity of child victims raising false allegations of sexual abuse to be problematic
even where the witness has extensive experience in such cases. “Whether the
victims in previous cases * * * were truthful and accurate is not relevant to the truth
14
While these questions on cross-examination demonstrate that Timothy’s defense counsel did, at least, take
some steps to address this problematic testimony on some level, the substance of these facts had essentially
been introduced already on direct examination.
-48-
Case No. 14-22-11
or accuracy of * * * the incident at issue in this case.” State v. Coffman,
130 Ohio
App.3d 467, 476
,
720 N.E.2d 545, 548-549
(3d Dist. 1998) (finding a police
officer’s testimony that, in his extensive experience in child sexual abuse cases, he
had “never had anyone even near [the seven-year-old victim’s] age where we knew
for a fact they were lying” to be improper); State v. Whitt,
68 Ohio App.3d 752, 758
,
589 N.E.2d 492, 495
(8th Dist. 1991); State v. Davis,
64 Ohio App.3d 334, 345
,
581
N.E.2d 604, 611
(12th Dist. 1989). Thus, testimony of this nature from a lay witness
who does not have extensive experience with these types of cases was problematic.
Accordingly, we conclude that the portion of Thompson’s testimony that Timothy
challenges on appeal was impermissible.
{¶73} Fourth Instance: On direct examination, Randy was asked by the
prosecutor what his goal was in filing a police report after R. had told him her
allegations. In response, Randy said:
Honestly, I—I need to say this. Um, I believed her wholeheartedly. I
did because, like, this doesn’t just come out of thin air in a child’s
mind but at the same time this was a very double edged sword for me.
Um, I didn’t know how to make the word like, you know, you say it
and you believe it but at the same time, it doesn’t make sense. Um,
but the only thing that I could really think about in this moment was I
know I have to do everything right in order to accomplish the goal of
getting her back to me which is, ultimately, the safest place she can
be.
(Feb. 28 Tr. 40-41). Randy then emphasized that this was important, “especially if
all of this is a hundred percent true * * *.” Id. at 41. This statement gave an opinion
about “credibility of [an]other witness * * *.”
Pawlak, supra, at ¶ 109
. While there
-49-
Case No. 14-22-11
is no indication that the prosecution sought to elicit this answer, these statements
still constituted impermissible opinion testimony and were not objected to by
defense counsel.
{¶74} Fifth Instance: On redirect examination, the prosecution also asked
about what Randy “detect[ed] as a dad” when he was watching the recorded
interview of R. describing the allegations in detail. (Feb. 28 Tr. 57). Randy replied
by saying, “My child has been harmed. My child is a victim. My child has been
through stuff that no child should have to go through.”
Id.
The State’s question
asked Randy what he perceived as he viewed a recorded interview of R. This is a
matter within the knowledge of a lay witness.
{¶75} Portions of Randy’s answer did suggest an opinion on the ultimate
issue in this case. See State v. Marrero, 10th Dist. Franklin No. 10AP-344, 2011-
Ohio-1390, ¶ 43, 46-48, citing State v. Clemons, 3d Dist. Allen No. 1-86-36,
1988
WL 37129
, *6. In this case, whether R. had been harmed by sexual abuse was
disputed. State v. Aboytes, 11th Dist. Lake No. 2020-L-001,
2020-Ohio-6806, ¶ 181
(“[T]he term ‘victim’ is used appropriately during trial when there is no doubt that
a crime was committed and simply the identity of the perpetrators is in issue.”);
State v. Madden,
2017-Ohio-8894
,
100 N.E.3d 1203, ¶ 34
(10th Dist.) (considering
whether the fact that the complainant had suffered a harm was in dispute).
{¶76} However, courts have uniformly found that such testimony does not
rise to the level of plain error. State v. Donald, 7th Dist. Mahoning No. 08 MA 154,
-50-
Case No. 14-22-11
2009-Ohio-4638
, ¶ 69; State v. Jackson,
2023-Ohio-455
,
208 N.E.3d 1010, ¶ 26
(8th
Dist.), citing State v. Butts, 8th Dist. Cuyahoga No. 108381,
2020-Ohio-1498, ¶ 41
;
State v. Wright, 9th Dist. Lorain No. 02CA008179,
2003-Ohio-3511
, ¶ 3-5; State v.
Morock, 10th Dist. Franklin No. 14AP-559,
2015-Ohio-3152, ¶ 25
. We note that
Randy’s statement was the understandable response of a father. Given this context,
we conclude that, even if this comment was impermissible, consideration of this
statement need not enter into the final analysis of prejudice.
{¶77} Sixth Instance: On cross-examination, Randy was questioned by the
Defense about R.’s honesty. On redirect examination, the prosecution referenced
this line of questioning in the following exchange:
[Prosecutor:] Randy, Mr. Valentine [Timothy’s Defense Counsel]
asked you if you knew about your daughter’s habit of lying. Do you
recall that?
[Randy:] I do.
[Prosecutor:] And does she have the habit of lying?
[Randy:] No.
[Prosecutor:] And you went on to start to explain your answer and so,
I want to give you a chance to explain your answer now. When you
said that she’s like any other kid, what do you mean?
[Randy:] She—if she sees herself getting extra attention from
explaining something, she will exaggerate. She will push it out, drag
it out further, you know, really, really accentuate details to, you know,
push that connection or that going on.
[Prosecutor:] Okay.
-51-
Case No. 14-22-11
[Randy:] So, I don’t think necessarily it’s a habit of lying as it is, you
know, seeking attention.
(Feb. 28 Tr. 54-55). On appeal, Timothy challenges this line of questioning as
Randy “reaffirm[ing] his [prior] opinion testimony.” (Appellant’s Brief, 12).
However, this testimony came after the Defense had a long series of questions that
delved into R.’s character for truthfulness on cross-examination.
{¶78} Each of the questions in this challenged portion of testimony
addressed a specific line of inquiry pursued by the Defense on cross-examination.
Further, unlike the first challenged instance above, Randy gave his opinion as to
R.’s general character for truthfulness rather than his opinion as to whether her
specific allegations against Timothy were true. See State v. Cook, 3d Dist. Union
No. 14-19-26,
2020-Ohio-3411, ¶ 41
. For these reasons, Randy’s testimony about
R.’s general character for truthfulness was permissible on redirect examination
under Evid.R. 608(A). See State v. Skidmore, 7th Dist. Mahoning No. 08 MA 165,
2010-Ohio-2846, ¶ 25
. See also State v. Denson, 1st Dist. Hamilton No. C-220208,
2023-Ohio-847, ¶ 23-26
.
{¶79} Seventh Instance: On cross-examination, Nancy was involved in the
following exchange with the prosecutor:
[Prosecutor:] And it [a written report] says, PGGM [Paternal Great-
Grandmother] reported that she believes, quote, something happened,
end quote. Do you see that?
[Nancy:] Yes, I do.
-52-
Case No. 14-22-11
[Prosecutor:] And so, the lady that wrote this report, she says that that
is the exact language that you used, quote, something happened, end
quote?
[Nancy:] Well, I believe I said—I don’t think I said that I believe that
something happened, you know.
[Prosecutor:] Uh-huh.
[Nancy:] I said—I said, if something maybe happened—I think I said
the same thing to Detective Flanagan. I don’t—you know. You know
what, at that time, I might have said this. I’m not going to lie. I might
have said that because it was right in the beginning of everything and
everything was—R[.] had said so many things and I felt so bad for
her. I didn’t think that she would be lying about it, you know.
(Mar. 2 Tr. 127-128). On appeal, Timothy challenges these statements as containing
impermissible opinion testimony.
{¶80} However, on direct examination, defense counsel asked if Nancy “had
any specific conversations with [R.] * * * regarding allegations she’s made against
Mr. Bruce[.]” (Mar. 2 Tr. 120). In response, Nancy said, “I told Detective Flanagan,
you know, I believe what she had told me and I am sorry but I swear I don’t
remember all the things that she told me.”
Id.
Given that Nancy had already made
this statement during direct examination, we cannot conclude that defense counsel
performed deficiently by failing to object to a discussion of her prior testimony on
cross-examination. See also State v. Sierra, 8th Dist. Cuyahoga Nos. 42827, 42829,
and 42951,
1981 WL 5025
, *9 (July 30, 1981); State v. Amankwah, 8th Dist.
Cuyahoga No. 89937,
2008-Ohio-2191, ¶ 44
.
-53-
Case No. 14-22-11
{¶81} In summary, our analysis has concluded that four of these seven
analyzed instances contained impermissible opinion testimony. As noted
previously, this Court has held that where a child victim testifies at trial and is cross-
examined, as in this case, such opinion testimony is generally considered to be
harmless error. See
Hupp, supra, at ¶ 18-19, 21
(finding harmless error where the
father of the children-victims testified “that he believed their allegations * * *”).
However, such opinion testimony is error nonetheless. While these four instances
do not individually provide grounds for reversal, these multiple instances of
harmless error are pertinent to a cumulative error analysis. See State v. DeMarco,
31 Ohio St.3d 191, 196-197
,
509 N.E.2d 1256, 1261
(1997). For this reason, we
will consider these four instances of improper opinion testimony as we determine
whether Timothy has established prejudice in the final analysis.
III. Deficient Performance Analysis: Hearsay Statements
{¶82} “‘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). The rules of evidence define a “statement” as “(1) an
oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.” Evid.R. 801(A). “Hearsay is typically inadmissible unless
the statement falls into a hearsay exception.”
Berry, supra, at ¶ 100
, citing Evid.R.
802. “Under Evid.R. 103(A) and Crim.R. 52(A), we disregard as harmless the
admission of improper hearsay evidence unless a substantial right of the party is
-54-
Case No. 14-22-11
affected.”
Brentlinger, supra, at ¶ 48
, quoting State v. Missler, 3d Dist. Hardin No.
6-14-06,
2015-Ohio-1076
, ¶ 60.
{¶83} Further, “[a] defense counsel’s failure to object is not ineffective
assistance of counsel if the evidence is admissible.” State v. Brown, 2020-Ohio-
3614,
154 N.E.3d 1129, ¶ 79
(3d Dist.), quoting State v. Jackson, 8th Dist. Cuyahoga
No. 86105,
2006-Ohio-174, ¶ 47
. However, “where resolution of factual issues
turns solely upon the credibility of witnesses, failure to object to hearsay testimony
which bolsters the credibility of witnesses constitutes ineffective assistance of
counsel.” State v. Nichols,
116 Ohio App.3d 759, 765
,
689 N.E.2d 98, 102
(10th
Dist. 1996).
{¶84} On appeal, Timothy challenges eleven instances where he alleges
inadmissible hearsay evidence was introduced at trial without objection. The first
instance addresses a comment made by an expert who did not testify at trial. The
next three instances address out-of-court statements made by Kimberly and Nancy
to staff at Nationwide Hospital. These are followed by four instances that relate to
R.’s disclosure of her allegations to Randy, her school principal, and a school nurse.
The final three instances address the admission of three recorded police interviews
of Kimberly and Brandee that were unredacted.
{¶85} First Instance: During cross-examination, the prosecutor engaged in
the following exchange with Kimberly:
-55-
Case No. 14-22-11
[Prosecutor:] Taking a look at State’s Exhibit 29 [a video recording
of an interview of Kimberly from September 25, 2018], you were
talking about somebody named Miss Benton that used to counsel your
son, Randy?
[Kimberly:] Yes, and had family counseling with her.
[Prosecutor:] And Miss Benton was some sort of a sex therapy
counselor. Is that accurate?
[Kimberly:] Sex offender counselor.
[Prosecutor:] And you had talked to Miss Benton?
[Kimberly:] Yes.
[Prosecutor:] And that’s what you were sharing with Detective
Flanagan?
[Kimberly:] Yes.
[Prosecutor:] And you had shared with Detective Flanagan that that
sex therapist shared with you that, quote, very rarely are kids lying
about this that they make it up, end quote. Did you hear that statement
from your own mouth?
[Kimberly:] I did.
(Mar. 2 Tr. 44-45).15 This statement of Miss Benton as related through Kimberly at
trial “was clearly hearsay and should not have been permitted.” State v. Porter, 9th
Dist. Summit No. 11091,
1983 WL 4222
(Sept. 14, 1983) (examining a case in
which a witness repeated at trial what an expert had previously told him).
15
Timothy also challenged this statement as improper opinion testimony and as hearsay. However, we need
only address its admissibility in our analysis of hearsay statements.
-56-
Case No. 14-22-11
{¶86} In the absence of significant physical evidence, the State’s case
ultimately relies on the jury’s assessment of the allegations against Timothy. This
challenged comment goes directly to the credibility of the allegations raised by a
child. Further, this hearsay statement was purportedly made by a counselor who the
jury would likely have perceived as an expert on the matter discussed. Accordingly,
this testimony carries the potential for being unfairly prejudicial in addition to being
inadmissible and should have been challenged by an objection.
{¶87} Second Instance: Alicia Daniels (“Daniels”) is a forensic interviewer
and mental health advocate at the Center for Family Safety and Healing at
Nationwide Children’s Hospital. As a part of her involvement in this case, Daniels
coauthored a report in which she documented the interviews conducted in this case
at Nationwide Hospital. At trial, the State had Daniels read various portions of the
report into the record and comment on what was contained in various portions of
the report. The portions of the report that she read contained statements that Nancy
and Kimberly had made to the staff at Nationwide Hospital on the day of R.’s
interview. On appeal, Timothy asserts that the out-of-court statements from
Kimberly and Nancy were inadmissible hearsay.
{¶88} Some portions of this challenged evidence contain statements in which
Nancy and Kimberly expressed their doubts regarding R.’s allegations and even
suggested that R. may be raising these allegations because she wants to live with
her father in Florida. The decision not to object to this class of statements may have
-57-
Case No. 14-22-11
been a matter of trial strategy as this testimony was consistent with the Defense’s
argument that R. had fabricated her allegations. However, the following portion of
this challenged testimony is of a different quality:
[Prosecutor:] And the PGGM [Paternal Great Grandmother, Nancy],
what did she respond to you because—would you have written down
whatever they respond? I mean, that’s why you make the summary.
Correct?
[Daniels:] Correct. It’s a summary of how my conversation went
with the family and what we discussed.
[Prosecutor:] And so, the great-grandma [Nancy] * * * [w]hat did she
respond?
[Daniels:] She [Nancy] stated that she believes something happened
but voiced concern that the patient could be exaggerating.
[Prosecutor:] And then keep going.
[Daniels:] And PGM [Paternal Grandmother, Kimberly] * * *
reported feeling unsure of what to believe.
[Prosecutor:] Now, in this particular situation, you used the word—
you used quotes around something happened * * * didn’t you? So,
whose words would those have been?
[Daniels:] That would have been paternal great-grandmother’s
[Nancy’s] words.
[Prosecutor:] And so, she’s saying that she believes something
happened but then she also adds?
[Daniels:] That she’s concerned it’s exaggerated.
(Feb. 28 Tr. 123-124). Both Nancy and Kimberly would later be called to testify as
witnesses for the Defense.
-58-
Case No. 14-22-11
{¶89} In these hearsay statements, Nancy and Kimberly conveyed their
opinions as to whether they believed R.’s allegations. Since in-court declarations
about whether a witness believes the allegations are not permissible, out-of-court
hearsay declarations about whether a witness believes the allegations are not
permissible. Nonetheless, we note that these statements described the doubts that
R.’s family had about her allegations. For this reason, defense counsel may have
refrained from raising an objection as a matter of trial strategy.
{¶90} Third Instance: At the conclusion of Daniels’s testimony on direct
examination, the following exchange occurred:
[Prosecutor:] Now, in this particular scenario, you’ve interviewed
about, I think it was 800 plus people. You’ve interacted with their
caregivers. * * * [B]ut you said this particular interaction stuck out
for you?
[Daniels:] It did.
[Prosecutor:] Why is that?
[Daniels:] At the very end of the appointment when we were doing
wrap up and I was giving the paperwork, so the Discharge Summary,
um, I had a pretty direct conversation with the family about reminding
them that R[.] was the victim and not Mr. Bruce.
(Emphasis added.) (Feb. 28 Tr. 129). In his brief, Timothy singles out the italicized
portion of this exchange as a particular focus of his argument.
{¶91} However, Timothy lumps this statement in with his challenge to the
hearsay statements in Daniels’s report. This is understandable as this “direct
conversation” came immediately after the interview in which Kimberly and Nancy
-59-
Case No. 14-22-11
made the statements that are documented in Daniels’s report. (Feb. 28 Tr. 129).
But as Daniels’s own statement, this comment stands apart from the hearsay
statements from Nancy and Kimberly that were written in the report. We need not
consider whether this statement was inadmissible hearsay as Daniels’s comment
that “R[.] was the victim and not Mr. Bruce” is independently problematic as it
offers an opinion on the ultimate issue to be decided at trial. (Feb. 28 Tr. 129).
{¶92} When describing what “stuck out” to her, Daniels did not discuss the
content of R.’s interview. (Feb. 28 Tr. 129). She did not point to any indicators of
reliability that were present in R.’s allegations and that could assist the trier of fact
in reaching a conclusion as to whether sexual abuse had occurred. See State v.
O.E.P.-T.,
2023-Ohio-2035
, --- N.E.3d ---, ¶ 179 (10th Dist.) (noting that a
description of a child-victim’s disclosure as “clear, coherent, and consistent”
assisted the jury in evaluating the allegations instead of simply giving an opinion of
the truthfulness of the allegations). See Winterich, supra, at ¶ 21.
{¶93} Rather, what “stuck out” to her was that, after the CAC interview, she
believed R.’s allegations while R.’s family had doubts. Id. In the identified
statement, she was telling the family members to believe that R. was the victim
rather than Timothy.16 At trial, this statement was not coupled with any information
that could assist the jurors in ascertaining whether sexual assault occurred in this
16
We are not examining whether this conversation was appropriate for Daniels to have with R.’s family at
the CAC. We are only examining the appropriateness of eliciting this information at trial.
-60-
Case No. 14-22-11
case. Further, the question posed to Daniels appears to have sought this answer.
For these reasons, we place this statement alongside the other instances of
impermissible opinion testimony that were reviewed previously.
{¶94} Fourth Instance: At trial, the State called Jami Casto (“Casto”), who
is the Clinical Program Coordinator at the Center for Family Safety and Healing at
Nationwide Children’s Hospital, as a witness. During direct examination of Casto,
the following exchange occurred:
[Prosecutor:] Then did you notice a reaction from grandmother?
[Casto:] She said that she had a hard time believing that.
[Prosecutor:] So, I want to make sure who the she is?
[Casto:] She being grandma.
[Prosecutor:] Grandma had a hard time—
[Casto:] Grandma and I talked to grandma and great-grandma
together.
[Prosecutor:] Okay. And you heard grandma say?
[Casto:] That they had a hard time believing that.
[Prosecutor:] And they had a hard time believing what is the that?
[Casto:] That everything that she said about the sexual abuse. And
then, prior to the interview, just so you know, prior to that they had
talked about not thinking that it could have happened because of some
concerns they had about his health problems.
(Feb. 28 Tr. 105). Casto’s statements indicated that Nancy and Kimberly were
skeptical of R.’s allegations from the outset. This testimony was not unfavorable to
-61-
Case No. 14-22-11
the Defense. Thus, even if this testimony contained inadmissible hearsay, the
unopposed introduction of favorable testimony cannot contribute to a finding of
prejudice in the final analysis.
{¶95} Fifth Instance: The prosecution asked Randy about a conversation
that he had with R. as follows:
[Prosecutor:] Did your daughter talk to you about pornography?
[Randy:] Yes.
[Prosecutor:] What—what did you learn and then determine from
what your daughter said?
[Randy:] From what she had told me, I gathered that he had—he had
shown her these videos, had essentially tried to educate her was the
understanding that I got. But, again, she was lacking the words and I
think the comfortability to tell me, you know, in fuller detail.
(Feb. 28 Tr. 44). In this testimony, Randy relayed what he came to understand from
statements that R. made to him during her initial disclosure of the alleged abuse. On
appeal, Timothy argues that these statements contained inadmissible hearsay and
should have prompted an objection from defense counsel.
{¶96} However, defense counsel had previously objected on grounds of
hearsay while Randy was testifying as to what R. had relayed to him during her
initial disclosure of the allegations. The trial court had overruled this prior
objection. The portion of Randy’s testimony that Timothy challenges as
inadmissible hearsay on appeal also came from R.’s initial disclosure to her father.
Since the trial court had already allowed the statements from this conversation to be
-62-
Case No. 14-22-11
admitted, defense counsel would have no reason to believe that the result of a
subsequent objection would have been any different.
{¶97} “An attorney is not required to perform futile acts. It may well have
been part of counsel’s strategy not to badger the court with respect to rulings on
which the court had made itself clear * * *.” State v. Mooney, 9th Dist. Lorain No.
94CA005860,
1995 WL 453379
, *3 (July 26, 1995). Further, the failure to do a
futile act cannot be prejudicial. State v. Powell,
2019-Ohio-4345
,
134 N.E.3d 1270
,
¶ 69 (8th Dist.). Further, on cross-examination, defense counsel questioned Randy
about the fact that R. never alleged she had been penetrated during her initial
disclosure to him. (Feb. 28 Tr. 46). Thus, defense counsel may also have decided
not to object as a matter of trial strategy in order to emphasize the fact that R. did
not allege penetration until her later interview at Nationwide Hospital.
{¶98} Sixth, Seventh, and Eighth Instances: The next three challenged
instances of alleged hearsay relate to statements that R. made in the process of
disclosing her allegations at school. At trial, the school nurse, Courtney Thompson
(“Thompson”), testified that R. came into the office at school; eventually asked for
a piece of paper; wrote down the allegations (“R. Letter”); and then spoke about
what she had written. After this interaction, Thompson wrote a letter (“Thompson
Letter”) that documented what had transpired in her office and what had been
discussed in her conversation with R. Portions of the Thompson Letter were later
-63-
Case No. 14-22-11
read at trial. The sixth instance of alleged hearsay is the admission of the Thompson
Letter as this writing relates numerous statements made by R.
{¶99} After speaking with Thompson, R. went to speak with the school
principal, Thomas Holdren (“Holdren”). (Mar. 1 Tr. 36, 38). The R. Letter was in
his possession during this discussion. As he spoke with R., Holdren wrote down a
series of notes (“Holdren’s Notes”) in the margin of the R. Letter. Holdren’s Notes
included a number of statements made by R. during their discussion. During his
testimony at trial, Holdren read several of these notes and provided an explanation
of their meaning when asked. The seventh instance of alleged hearsay is the
admission of R.’s statements as relayed through Holdren’s Notes. During Holdren’s
testimony, the State also published the R. Letter to the jury. The eighth instance of
alleged hearsay is the admission of the R. Letter, containing R.’s written allegations.
{¶100} Elements of the Thompson Letter, Holdren’s Notes, and the R. Letter
provided defense counsel with various grounds to raise objections. However, for
several reasons, we conclude that the decision on whether to object to this evidence
falls within the realm of debatable trial tactics and strategy. At the outset, we note
that the trial court had already overruled a hearsay objection on the grounds that R.
would later testify. Thus, defense counsel could arguably have refrained from
lodging an objection as the trial court’s prior ruling on a hearsay objection indicated
that R.’s statements likely would have been admitted. Further, given that R. was to
testify, these statements were either going to be cumulative to R.’s trial testimony
-64-
Case No. 14-22-11
or a source of inconsistent statements for the jury to consider if R.’s trial testimony
was to vary from the statements she had made to Thompson and Holdren.
Accordingly, we cannot conclude that these are instances of deficient performance.
{¶101} Ninth, Tenth, and Eleventh Instances: While cross-examining
Kimberly, the State played several small portions of recorded interviews that she
had sat for on September 28, 2018 and November 30, 2018 with Detective Flanagan.
Subsequently, while cross-examining Brandee, the State played a small portion of a
recorded interview between her and Detective Flanagan that occurred on September
20, 2018. At the conclusion of Timothy’s trial, unredacted copies of these entire
interviews were then admitted into evidence as Exhibits 29, 30, and 31. Prior to
admission, the trial court asked defense counsel if he had any objection to these
three exhibits. Defense counsel expressly stated that there was no objection.
{¶102} On appeal, Timothy argues that defense counsel should have
objected to the admission of these unredacted interview recordings into evidence as
exhibits on hearsay grounds. In these interviews, Detective Flanagan gave several
protracted evaluations of the content and credibility of R.’s allegations. Kimberly
and Brandee also recounted a number of Timothy’s other acts that were unrelated
to the charges against him. Further, these interviews also contained a number of
descriptions of the other acts evidence that was admitted at trial, challenged on
appeal, and found to be unfairly prejudicial in our prior analysis. The renderings of
-65-
Case No. 14-22-11
these prior acts were far more unfairly prejudicial in these recorded interviews than
the renderings of these same incidents that were given at trial.
{¶103} We have already concluded that the unfairly prejudicial testimony
given at trial regarding Timothy’s prior acts should not have been introduced
unchallenged. For the same reasons, we conclude that these unredacted interviews,
which contain more prejudicial versions of the same information in addition to other
prejudicial opinion evidence and other prior bad acts evidence, also should not have
been admitted into evidence as exhibits unchallenged. See also State v. Fuchs, 2d
Dist. Montgomery No. 27873,
2019-Ohio-4294, ¶ 22
.
IV. Deficient Performance Analysis: Closing Arguments
{¶104} In examining claims of prosecutorial misconduct, “the standard of
review ‘is [1] whether remarks are improper and, if so, [2] whether they
prejudicially affected substantial rights of the accused.’” State v. Davis, 3d Dist.
Seneca No. 13-16-30,
2017-Ohio-2916, ¶ 27
, quoting State v. Lott,
51 Ohio St.3d
160, 165
,
555 N.E.2d 293
(1990).
“[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability
of the prosecutor.” Smith v. Phillips,
455 U.S. 209, 220
,
102 S.Ct.
940
,
71 L.Ed.2d 78
(1982). “A prosecutor is entitled * * * to ‘wide
latitude in summation as to what the evidence has shown and what
reasonable inferences may be drawn therefrom.’” [State v.]
McKelton, [
148 Ohio St.3d 261
,
2016-Ohio-5735
,
70 N.E.3d 508
,] *
* * ¶ 274[, quoting] State v. Stephens,
24 Ohio St.2d 76, 82
,
263
N.E.2d 773
(1970). However, ‘[i]t is improper for an attorney to
express his personal belief or opinion as to the credibility of a witness
or as to the guilt of the accused.’ [State v.] Smith[,
14 Ohio St.3d 13
,]
-66-
Case No. 14-22-11
14,
470 N.E.2d 883
[(1984)] citing State v. Thayer,
124 Ohio St. 1
,
176 N.E. 656
(1931). ‘A prosecutor may state his opinion if it is based
on the evidence presented at trial.’ State v. Klein, 3d Dist. Union No.
14-12-09,
2013-Ohio-2387
, * * * ¶ 60, quoting State v. Watson,
61
Ohio St.3d 1, 10
,
572 N.E.2d 97
(1991) abrogated on other grounds
by State v. McGuire,
80 Ohio St.3d 390
,
686 N.E.2d 1112
(1997).
State v. Thompson, 3d Dist. Henry
2017-Ohio-792
,
85 N.E.3d 1108
, ¶ 21. “[N]ot
every intemperate remark by counsel can be a basis for reversal.” State v. Liles, 3d
Dist. Allen No. 1-14-61,
2015-Ohio-3093, ¶ 31
, quoting State v. Porter, 4th Dist.
Meigs No. 10CA15,
2012-Ohio-1526, ¶ 20
. “Misconduct of a prosecutor at trial
will not be considered grounds for reversal unless the conduct deprives the
defendant of a fair trial.” State v. Johnson,
2014-Ohio-4750
,
22 N.E.3d 249
, ¶ 88
(3d Dist.).
{¶105} In his brief, Timothy identifies the following remark that was made
during closing arguments as the basis of his prosecutorial misconduct claim:
I want you to pay particular close attention. If you remember Mr.
Bruce, when R[.] was testifying, didn’t make near as many sounds or
noises or grunts or words. He knows what he’s doing. Trying to look
at R[.]. Trying to keep in contact with. His mumbling’s greatly
decreased, you see, because he’s got to make note of everything she
says.
(Mar. 2 Tr. 151). Timothy argues that the prosecutor, by referencing his demeanor
and appearance at trial, violated his Fifth Amendment right against self-
incrimination by improperly drawing attention to his decision not to testify.
{¶106} However, the Ohio Supreme Court has held that “[a] defendant’s face
and body are physical evidence.” State v. Brown,
38 Ohio St.3d 305, 317
, 528
-67-
Case No. 14-22-
11
N.E.2d 523
, 538 (1988). For this reason, “[a] prosecutor may comment on the
defendant’s physical appearance, demeanor and body language during trial.” State
v. Williams, 1st Dist. Hamilton No. C-180291,
2020-Ohio-1228, ¶ 37
, citing Brown
at 317; State v. Green,
90 Ohio St.3d 352, 373
,
2000-Ohio-182
,
738 N.E.2d 1208,
1232
(2000); State v. Bey,
85 Ohio St.3d 487, 496-497
,
1997-Ohio-283
,
709 N.E.2d
484
(1999). See also State v. Hill,
75 Ohio St.3d 195, 203
,
661 N.E.2d 1068, 1078
(1996).
{¶107} Further, prosecutorial comments about the demeanor of the accused
at trial are not, as a general matter, properly understood as implicating a defendant’s
Fifth Amendment right not to testify. State v. Weaver,
178 Ohio App.3d 504
, 2008-
Ohio-5022,
898 N.E.2d 1023, ¶ 143
(6th Dist.); State v. Ladson, 8th Dist. Cuyahoga
No. 105914,
2018-Ohio-1299
, ¶ 36. See also State v. A.W.M., 10th Dist. Franklin
No. 18AP-523,
2020-Ohio-4707, ¶ 61-62
. But see State v. McDonald, 6th Dist.
Lucas No. L-08-1032,
2010-Ohio-574
, ¶ 27.
{¶108} Having examined the content of the challenged statement, we cannot
conclude that the prosecutor intended this remark to be a comment on Timothy’s
decision not to testify or that the jurors would have understood this remark to be a
comment on Timothy’s decision not to testify. State v. Shivers, 8th Dist. Cuyahoga
No. 106601,
2018-Ohio-5174, ¶ 62
, quoting State v. Webb,
70 Ohio St.3d 325, 328
,
1994-Ohio-425
,
638 N.E.2d 1023
(1994). Thus, there is no indication that the State
impermissibly commented on Timothy’s decision not to testify as he alleged in his
-68-
Case No. 14-22-11
brief. (See Appellant’s Brief, 23). See also State v. Erker,
2019-Ohio-3185
,
141
N.E.3d 543
, ¶ 121 (8th Dist.).
{¶109} Timothy also argues that this comment contained irrelevant evidence
regarding his demeanor during trial. Again, the Ohio Supreme Court has held that
a defendant’s demeanor and behavior during trial constitute evidence on which a
prosecutor may comment. Brown, supra, at 317;
Green, supra, at 373
;
Hill, supra,
at 203
. While the content of this challenged comment is somewhat inscrutable, the
prosecution appears to be addressing several statements that defense counsel made
in opening arguments about how Timothy’s traumatic brain injury affects his
responses to his surroundings. See Williams, supra, at ¶ 37-38. Defense counsel
had previously stated the following:
I’ve talked to you a little bit during jury voir dire about my client, Tim
Bruce, and his issues with the traumatic brain injury. I’m not going
to go through all that again but just want to point out to you one more
time it causes him sometimes, when he gets upset about things, to act
out. Not against R[.] but while we’re in trial here. He’s having some
difficulty while we were sitting listening to opening statements
because it so offended him the things that [the prosecutor] * * * was
saying. All these things that have been made up about him. And as a
result, he’s unable to control himself.
(Feb. 28 Tr. 27). Thus, the statements by the prosecution appear to be a response to
these previous comments from the Defense. Given this context, we cannot conclude
that the prosecutor’s remarks during closing arguments were prejudicial or harmful
to the Defense even if we were to assume that the comments were improper. See
Brown, supra, at 317.
-69-
Case No. 14-22-11
Prejudice Analysis
{¶110} Our analysis of the assigned errors concluded that this trial contained
multiple errors that were, in several instances, significant. To establish prejudice,
Timothy essentially argues that the cumulative effect of the multiple errors he
identifies on appeal was to deny him a fair trial and to undermine confidence in the
result of these proceedings. He argues that, in the absence of these errors, a
reasonable probability exists that the jurors may not have returned verdicts of guilty
on the charges against him.
{¶111} “The Ohio Supreme Court previously recognized that the doctrine of
cumulative error may be applied to a claim of ineffective assistance of counsel.”
State v. Hopings, 6th Dist. Lucas No. L-20-1075,
2022-Ohio-1532, ¶ 44
.
The cumulative-error doctrine provides that ‘a conviction will be
reversed when the cumulative effect of errors in a trial deprives a
defendant of a fair trial even though each of the numerous instances
of trial-court error does not individually constitute cause for reversal.’
State v. Belton,
149 Ohio St.3d 165
,
2016-Ohio-1581
,
74 N.E.3d 319, ¶ 169
, quoting
State v. Powell,
132 Ohio St.3d 233
,
2012-Ohio-2577
,
971 N.E.2d 865
, ¶ 223.
A claim of cumulative error based on the ineffective assistance of
counsel would require a determination that while no single act by trial
counsel met the standard set forth in Strickland, * * * [supra at 687-
688], the cumulative effect of counsel’s conduct satisfied the
Strickland standard.
State v. Howard,
2020-Ohio-3819
,
156 N.E.3d 433, ¶ 85
(2d Dist.).
-70-
Case No. 14-22-11
{¶112} To establish prejudice, “the defendant must demonstrate * * * that
there exists a reasonable probability that, but for counsel’s error[s], the result of the
proceeding would have been different.” State v. Davis,
159 Ohio St.3d 31
, 2020-
Ohio-309,
146 N.E.3d 560, ¶ 14
. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id.,
quoting
Strickland, supra,
at 694
. This requires more than a conclusion that “the defendant was simply harmed
by counsel’s alleged deficient performance.” Id. at ¶ 15. See also State v. Bradley,
42 Ohio St.3d 136
,
538 N.E.2d 373, fn. 1
(1989).
{¶113} Beyond making a general assertion that the identified errors were
prejudicial, Timothy raises several arguments to establish that the challenged errors
were particularly damaging to his defense under the facts of this case. He begins by
pointing to the testimony from Detective Flanagan and Hornor regarding the
absence of physical evidence to corroborate the allegations of rape against him. On
cross-examination, Detective Flanagan testified as follows:
[Defense Counsel:] Now, isn’t it true that, as testified to earlier,
there’s no physical evidence that any of these things actually
occurred?
[Detective Flanagan:] That’s correct.
[Defense Counsel:] So, your investigation and then your ensuing
speculation as to what occurred are based on—on the actual verbal
allegations by R[.]?
[Detective Flanagan:] That’s accurate.
(Mar. 1 Tr. 180). The nurse who had examined R. testified as follows:
-71-
Case No. 14-22-11
[Defense Counsel:] * * * And the physical exam, itself, from your
examination of R[.], there is no indication in fact that she was
penetrated. Correct?
[Hornor:] Her exam was normal. Correct.
[Defense Counsel:] Okay. And there’s no, from a physical
examination viewpoint, there’s no indication, no evidence that in fact
she was even sexually molested. Correct?
[Horner:] Correct.
(Mar. 1 Tr. 23).17 In the absence of physical evidence, Timothy argues that the
State’s case depended on the credibility of the allegations against him, increasing
the harmful impact of the errors that he challenges on appeal. Thus, he asserts that
the improper opinion testimony unfairly bolstered the State’s case against him while
the improper evidence of other potentially illegal activities and bad acts unfairly
undermined his defense.
{¶114} We note that the jury instructions given by the trial court directed the
jury to consider the other acts evidence only for the delineated, permissible
purposes. The jury instructions also admonished the jurors that they were “the sole
judges of the facts” and “the credibility of the witnesses.” (Mar. 2 Tr. 175, 176).
However, while “[t]he giving of a curative instruction will often obviate the
necessity of a mistrial * * *, there are some instances in which the prejudice is so
17
We note that Hornor testified at trial that R. “gave extensive history of sexual abuse” and that her (Hornor’s)
“diagnosis of sexual abuse was made based upon her [R.’s] * * * extensive history * * *.” (Mar. 1 Tr. 23).
See State v. Schewirey, 7th Dist. Mahoning No. 05 MA 155,
2006-Ohio-7054, ¶ 53
.
-72-
Case No. 14-22-11
great that it is impossible ‘to unring the bell.’” Tumblin v. State,
29 So.3d 1093,
1102
(Fla. 2010), quoting Graham v. State,
479 So.2d 824, 825-26
(Fla. App. 1985).
It is our opinion that this case presents one such instance.
{¶115} Having considered each of these alleged instances of deficient
performance, we conclude that the result of defense counsel’s numerous instances
of inaction was the introduction of inadmissible and highly prejudicial testimony.
The cumulative effect of these errors was to deny Timothy his right to a fair trial.
For this reason, we conclude that Timothy has carried the burden of establishing
that he was denied his right to the effective assistance of counsel as guaranteed by
the Sixth Amendment to the United States Constitution. His sole assignment of
error is sustained. Accordingly, we vacate all of Timothy’s convictions in this case
and remand this cause of action for a new trial. See State v. Barr,
158 Ohio App.3d
86
,
2004-Ohio-3900
,
814 N.E.2d 79
, ¶ 3 (7th Dist.).
Conclusion
{¶116} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Union County Court of Common Pleas is
reversed. We remand this cause of action for further proceedings consistent with
this opinion.
Judgment Reversed
And Cause Remanded
MILLER, P.J., concurs.
-73-
Case No. 14-22-11
ZIMMERMAN, J., concurring separately.
{¶117} I write separately in support of our decision to reverse the conviction
of the Defendant. Plain and simple, the State went too far in its use of highly
prejudicial and irrelevant evidence without objection by the Defense. One can only
imagine how the jury considered such evidence in its deliberation on charges that
had no connection.
/hls
-74-Case Information
- Court
- Ohio Ct. App.
- Decision Date
- September 18, 2023
- Status
- Precedential