State v. Risch

[Cite as State v. Risch, 2025-Ohio-2484.]




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




STATE OF OHIO,
                                                     CASE NO. 2-24-04
        PLAINTIFF-APPELLEE,

   v.

MATTHEW KEITH RISCH,                                 OPINION AND
                                                     JUDGMENT ENTRY
        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                                 Criminal Division
                           Trial Court No. 2023-CR-124

                       Judgment Reversed and Cause Remanded

                               Date of Decision: July 14, 2025




APPEARANCES:

         Victoria Bader for Appellant

         Laia Zink for Appellee
Case No. 2-24-04



WALDICK, J.

       {¶1} Defendant-appellant, Matthew Keith Risch (“Risch”), brings this

appeal from the May 20, 2024 judgment of the Auglaize County Common Pleas

Court. On appeal, Risch argues that the trial court erred by permitting Risch’s prior

convictions to go to the jury, that the trial court abused its discretion by denying

Risch’s request for a mistrial, that Risch received ineffective assistance of trial

counsel, that Risch’s consecutive sentences were not clearly and convincingly

supported by the record, and that the cumulative errors deprived him of a fair trial.

For the reasons that follow, we reverse the judgment of the trial court and remand

for a new trial.

                                    Background

       {¶2} On August 10, 2023, a 10-count indictment was returned against Risch

containing the following charges: (Count 1) Gross Sexual Imposition (“GSI”) in

violation of R.C. 2907.05(A)(4), a third degree felony; (Count 2) GSI in violation

of R.C. 2907.05(A)(4), a third degree felony; (Count 3) Attempted GSI in violation

of R.C. 2923.02(A) and R.C. 2907.05(A)(4), a fourth degree felony; (Count 4) GSI

in violation of R.C. 2907.05(A)(4), a third degree felony; (Count 5) Disseminating

Matter Harmful to Juveniles in violation of R.C. 2907.31(A)(3), a fourth degree

felony; (Count 6) Disseminating Matter Harmful to Juveniles in violation of R.C.

2907.31(A)(3), a fourth degree felony; (Count 7) Disseminating Matter Harmful to
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Juveniles in violation of R.C. 2907.031(A)(1), a fourth degree felony; (Count 8)

Disseminating Matter Harmful to Juveniles in violation of R.C. 2907.031(A)(3), a

fourth degree felony; (Count 9) Public Indecency in violation of R.C.

2907.09(A)(1), a fourth degree misdemeanor; and (Count 10) Public Indecency in

violation of R.C. 2907.09(B)(4), a first degree misdemeanor. The charges stemmed

from Risch’s interactions with two separate child-victims. Counts 1, 2, 3, 5, 6, 9 and

10 were related to “Victim 1” while Counts 4, 7, and 8 were related to “Victim 2.”

Risch pled not guilty to the charges.

         {¶3} It was alleged, inter alia, that while Risch was alone in his basement

with Victim 1, Risch put a child’s glove on his erect penis and encouraged Victim

1 to touch his erect penis. There was another allegation that while in a vehicle, Risch

touched the legs and “upper thigh” area of Victim 1 for purposes of sexual arousal

or gratification while Victim 1 had no underwear on.1 It was also alleged that Risch

regularly wore an open robe with nothing underneath it, exposing himself to

children.




1
  This event occurred in Risch’s truck. Victim 1 testified that Risch took her, her sister, and Risch’s step-son
swimming at a Holiday Inn. Victim 1 did not have clothing to swim in, so she was given Risch’s wife’s
clothing, which was too big for Victim 1. In the pool, Risch was repeatedly grabbing Victim 1 and pulling
her on his lap. Victim 1 testified she could feel his “private part” “move” when she was forced to sit on Risch.
When the group left the pool, Victim 1 sat behind Risch in his truck. She was wearing a t-shirt and a sweatshirt
tied around her waist to cover herself, but no underwear. Risch reached behind himself with his left arm
between the door and the seat to touch Victim 1’s thigh during the ride. The other two children were asleep
in the back during the incident. However, when Victim 1’s sister awakened at one point, Victim 1 shined a
light from her cell phone on Risch’s hand on her thigh, showing her sister, so the incident was observed by
another witness.

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         {¶4} In addition, it was alleged that Risch had a prior conviction for GSI

against a child under thirteen, which enhanced the penalty for GSI in violation of

R.C. 2907.05(A)(4)/(C)(2). These statutory provisions read as follows:

         (A) No person shall have sexual contact with another; cause another
         to have sexual contact with the offender; or cause two or more other
         persons to have sexual contact when any of the following applies:

         ...

         (4) The other person, or one of the other persons, is less than thirteen
         years of age, whether or not the offender knows the age of that person.

         ...

         (C) Whoever violates this section is guilty of gross sexual imposition.

         ...

         (2) Gross sexual imposition committed in violation of division (A)(4)
         or (B)2 of this section is a felony of the third degree. Except as
         otherwise provided in this division, for gross sexual imposition
         committed in violation of division (A)(4) or (B) of this section there
         is a presumption that a prison term shall be imposed for the offense.
         The court shall impose on an offender convicted of gross sexual
         imposition in violation of division (A)(4) or (B) of this section a
         mandatory prison term, as described in division (C)(3) of this section,
         for a felony of the third degree if the offender previously was
         convicted of or pleaded guilty to a violation of this section, rape, the
         former offense of felonious sexual penetration, or sexual battery, and
         the victim of the previous offense was less than thirteen years of age.


2
  There are no arguments that R.C. 2907.05(B) is implicated in this case. However, for reference, it reads as
follows:

         (B) No person shall knowingly touch the genitalia of another, when the touching is not
         through clothing, the other person is less than twelve years of age, whether or not the
         offender knows the age of that person, and the touching is done with an intent to abuse,
         humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

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Case No. 2-24-04


Notably, Risch did have multiple prior convictions for GSI; however, his only prior

conviction related to a child under thirteen was a conviction for “Attempted GSI.”

Nevertheless, the trial court determined that a prior conviction for Attempted GSI

enhanced the penalty in this case under R.C. 2907.05(C)(2).

       {¶5} Prior to trial, Risch filed a motion in limine seeking to prevent the State

from presenting evidence regarding his prior convictions at trial. In essence, Risch

contended that the language in R.C. 2907.05(C)(2) related to a prior conviction was

not an element of the crime that needed to be determined by the jury. The trial court

held a hearing on the matter wherein the parties argued whether the language in R.C.

2907.05(C)(2) constituted a sentencing factor to be determined by the trial court at

the time of sentencing, or an essential, enhancing element of the crime at issue that

had to be proven to the jury beyond a reasonable doubt. Ultimately the trial court

determined that the language in R.C. 2907.05(C)(2) constituted an essential element

that had to be proven to the jury.

       {¶6} Risch renewed his objection at trial and contended that the prior

conviction language in R.C. 2907.05(C)(2) was merely a sentencing factor to be

considered by the trial judge, but the objection was overruled. In an attempt to limit

the information regarding his prior convictions that went to the jury, Risch agreed

to admit that he had a prior conviction for Attempted GSI of a victim under thirteen.




                                         -5-
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       {¶7} Prior to the commencement of trial, the State dismissed Counts 7 and 8

of the indictment, leaving only one count to be tried related to Victim 2. The trial

then proceeded on the remaining counts.

       {¶8} At the conclusion of the State’s case, Risch made a Crim.R. 29 motion

for acquittal on all counts. His motion was granted with respect to Counts 3 and 4,

but denied with respect to the remaining charges. Based on the trial court’s ruling,

there were no remaining charges related to Victim 2.

       {¶9} The jury found Risch guilty of all remaining charges against him. On

May 20, 2024, Risch was sentenced to serve an aggregate 156-month prison term.

A judgment entry memorializing his sentence was filed that same day. It is from this

judgment that Risch appeals, asserting the following assignments of error for our

review.

                           First Assignment of Error

       The trial court erred when it required the prior conviction to go
       to the jury.

                          Second Assignment of Error

       The trial court abused its discretion when it denied the mistrial
       request.

                           Third Assignment of Error

       Trial counsel was constitutionally ineffective.




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                                   Fourth Assignment of Error

         The cumulative effect of the errors in this case denied a fair trial.

                                    Fifth Assignment of Error

         The trial court erred when it sentenced Matthew Risch to
         consecutive sentences that the record clearly and convincingly
         does not support.


         {¶10} Following oral arguments in this case, we requested that the parties

brief two additional issues for our consideration.

    1. Pursuant to R.C. 2907.05(C)(2), does Risch’s conviction for
       “Attempted Gross Sexual Imposition” constitute a prior conviction “of
       this section” such that the penalty becomes mandatory?

    2. Defendant’s Exhibit A, which was introduced into evidence at trial,
       contains a stipulation to two prior convictions for Gross Sexual
       Imposition of individuals who were 14 and 15 years of age.3 Do the
       rules of evidence provide any basis for presenting these convictions to
       the jury when the defendant did not testify?

         {¶11} We will begin by addressing Risch’s fourth assignment of error, as it

is dispositive in this case.




3
  The State contends that there was no stipulation in this case since the State would have preferred to present
evidence related to the prior convictions to the jury. Thus we will call the statements “admissions” rather
than stipulations.

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                             Fourth Assignment of Error

       {¶12} In his fourth assignment of error, Risch argues that the cumulative

errors in this case deprived him of a fair trial.

                                  Standard of Review

       {¶13} Under the doctrine of cumulative error, “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. Powell, 2012-Ohio-2577, ¶ 223.

  Trial Court’s Application of “Enhancing Offenses” under R.C. 2907.05(C)(2)

       {¶14} At a pretrial hearing, the parties discussed whether “Attempted GSI”

of a child under thirteen constituted an offense of “this section” such that it enhanced

the penalty under R.C. 2907.05(C)(2). The specific enhancing language in R.C.

2907.05(C)(2) reads as follows:

       The court shall impose on an offender convicted of gross sexual
       imposition in violation of division (A)(4) or (B) of this section a
       mandatory prison term . . . if the offender previously was convicted
       of or pleaded guilty to a violation of this section . . . and the victim of
       the previous offense was less than thirteen years of age.

(Emphasis added.) The State argued that “Attempted GSI” would qualify as an

offense of “this section” because the GSI language was directly referenced

alongside the attempt statute in Risch’s indictment and conviction for Attempted


                                           -8-
Case No. 2-24-04


GSI. In addition, the State argued that Risch’s prior convictions for GSI of a 14-

year-old child and GSI of a 15-year-old child would enhance the offense. Defense

counsel initially disagreed that any of the charges enhanced the crime in this case.

The following discussion then occurred:

       THE COURT: . . . So for purposes of enhancement, those are the three
       (3) counts that the State claims would enhance. The enhancement
       language in the statute…

       ...

       I believe it’s 2907.05.

       [PROSECUTOR]: (C)(2).

       THE COURT: [Y]eah, (C)(2). “If the offender previously was
       convicted of or pleaded guilty to a violation of this section, rape, the
       former offense of felonious sexual penetration, or sexual battery,” and
       while conviction of 2907.05 in conjunction with 2923.02 is what
       makes it an attempt, it is still a conviction under 2907.05, and
       therefore, would still enhance. Is that the position of the State?

       [PROSECUTOR]: Yes, Your Honor.

(March 5, 2024, Tr. at 21-22).

       {¶15} Critically, when the trial court recited the statutory language of R.C.

2907.05(C)(2), it did not read the portion indicating that the victim had to be less

than thirteen to enhance the offense. Nevertheless, the trial court asked defense

counsel if he agreed that the prior offenses enhanced this matter, and defense

counsel, after conferring with Risch, surprisingly agreed.

       The discussion then continued as follows:

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      THE COURT: Okay. So we’re on the same page for that. . . . It’s my
      understanding that the Defendant’s position is that the Defendant
      wishes to admit that he was previously convicted of the GSI of a
      fifteen (15) year old, the GSI of a fourteen (14) year old, and the
      attempted GSI of a six (6) to seven (7) year old. And then wishes the
      Court to exclude admission of these [prior indictments and judgment
      entries] because they would be,- [sic] the prejudicial effect would
      outweigh the probative value, because there would be no probative
      value because since he has admitted the enhancement, there’s no need
      to put in the documents which have other extraneous things in them,
      like all those other counts of the misdemeanors. Now is that what the
      Defense is saying? . . .

      ...

      [Defense counsel confers with Risch.]

      [DEFENSE COUNSEL: Your Honor, the answer is yes, that is what
      we’re trying to do. We want to STIPULATE [sic] to the prior
      enhancing offense without having additional documents or witnesses
      to testify to that. That’s what we’re trying to do with respect to the
      counts that were just mentioned on the record.

      THE COURT: So the Defendant will be admitting that on December
      7, 2010, that he was convicted of one (1) count of gross sexual
      imposition on a fifteen (15) year old; one (1) count of gross sexual
      imposition on a fourteen (14) year old; one (1) count of attempted
      gross sexual imposition on a child between the ages of (6) and (7)? Is
      that a yes?

      [DEFENSE COUNSEL]: That’s a yes, Your Honor.

      ...

      THE COURT: And that would be done in writing, as a written
      admission; is that what you are saying?

      [DEFENSE COUNSEL]: Yes, Your Honor.

      ...


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       THE COURT: If the Court receives that admission, in written form
       and admits it, would the State concur that all the other documents
       would, therefore, be duplicitous and have no probative value?

       [PROSECUTOR]: Yes, Your Honor. I guess I just want to be clear,
       due to prior arguments, that the Defendant understands that written
       admission would go to the jury . . . [.]

       THE COURT: I said it would be admitted . . . then it would go to the
       jury and they would, therefore, have to accept that as true without the
       necessity of any further proof.

(Id. at 22-25).

       Later during the same hearing, defense counsel raised the issue of the

“admissions” again with the trial court.

       [Defense Counsel]: . . . I was raising that issue because, you know,
       obviously, you know, the jury hearing, well, you’re convicted of GSI
       involving a victim under thirteen (13) years of age could be unduly
       prejudicial. I mean, that’s the concern, and is there any other way to
       modify the way that’s presented to the jury, so that they know that
       he’s been convicted of an offense that causes the time to be mandatory
       without disclosing the nature of the charge? That’s the question.

       THE COURT: I’ve ruled on that.

       [DEFENSE COUNSEL]: Yes, I understand, Your Honor.

       THE COURT: NOTED. [sic] We’re going to take a brief recess.
       During that recess, you can refresh yourselves, but also during that
       recess, I need to see Defense Counsel concerning the preparation of
       the admission that he indicated the Defendant was going to admit.

(Id. at 73-74).

       When court reconvened, a document had been prepared reading as follows:

       The Defendant does hereby ADMIT that on December 7, 2010, he
       was convicted of the following:

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       1. Gross Sexual Imposition of a 15 year old female;

       2. Gross Sexual Imposition of a 14 year old female;

       3. Attempted Gross Sexual Imposition of a female between the ages of
          6 and 7, in the Wyandot County Court of Common Pleas.

(Def.’s Ex. A).4 The trial court had Risch sign the document in the courtroom and

indicated that the document would be submitted to the jury during the actual trial.

The document was ultimately submitted as written to the jury.

                                                  Analysis

           {¶16} There are multiple issues that arose from the March 5, 2024 hearing

that warrant discussion. First, we asked the parties to brief the issue of whether

“Attempted GSI” should qualify as a prior offense of “this section” under R.C.

2907.05(C)(2) such that it enhanced the offense in the case sub judice. Second, we

asked the parties to brief whether the rules of evidence provide any basis for

presenting the prior GSI convictions of a 14-year-old and a 15-year-old when those

convictions definitively did not enhance the offense in this matter pursuant to R.C.

2907.05(C)(2). We will address each issue in turn.

Does a prior conviction for Attempted GSI enhance the penalty for GSI under R.C.
                                 2907.05(C)(2)?




4
    Although labeled as “Defendant’s Exhibit A,” it is not clear who actually prepared the document.

                                                     -12-
Case No. 2-24-04


       {¶17} Both parties acknowledged that whether “Attempted GSI” enhances

the penalty for GSI under R.C. 2907.05(C)(2) is an issue of first impression in this

District. In order to determine whether the legislature intended “Attempted GSI” to

constitute a violation of “this section” for purposes of R.C. 2907.05(C)(2), we must

analyze statutory language and case authority.

       {¶18} The primary concern in the interpretation of a statute is legislative

intent. State v. Jordan, 2000–Ohio–225. Courts will look to the language of the

statute itself in attempting to ascertain the legislative intent. See Stewart v. Trumbull

Cty. Bd. of Elections, 34 Ohio St.2d 129, 130 (1973). In examining the actual

language of a statute, words should be given their common, ordinary, and accepted

meaning unless the legislature has clearly expressed a contrary intention.

Youngstown Club v. Porterfield, 21 Ohio St.2d 83, 86 (1970).

       {¶19} First, we look to the plain statutory language of the “Attempt” statute

as codified in R.C. 2923.02(E)(1). This section states that “whoever violates this

section is guilty of an attempt to commit an offense,” not “guilty of some form of

the crime attempted.” (Emphasis added.) This is consistent with case authority

interpreting the “attempt” statute.

       {¶20} In State v. Warren, 2006-Ohio-1281, ¶ 53 (7th Dist.), the Seventh

District Court of Appeals stated, “a conviction for an attempted crime is not

converted into, or interchangeable with, a conviction for the underlying crime. For

example, a conviction for attempted rape is not a conviction for rape, except with a

                                          -13-
Case No. 2-24-04


lesser penalty. It is a conviction for attempted rape, which is a separate crime.” See

also, State v. Nolan, 2013-Ohio-2829, ¶ 45 (11th Dist.) (“Although an attempt is a

complete offense in itself, it presumes the underlying crime for which the offender

has prepared has not been completed.”).

       {¶21} The Supreme Court of Ohio looked at a similar, albeit distinguishable

issue to whether an attempt of a crime can constitute the crime itself for

enhancement purposes in State v. Taylor, 2007-Ohio-1950. Specifically, the Court

was asked to resolve the issue of “whether a conviction for an attempted drug

offense that would have been, if successfully completed, a first-degree felony, but

which becomes a second-degree felony by virtue of the fact that it is merely an

attempt to commit an offense, is subject to the mandatory prison term provisions

in R.C. 2925.11.” Id. at ¶ 1. On review of the relevant statutes, the Court determined

that “an attempted possession of drugs is not a separate and distinct crime from

possession of drugs, but rather is incorporated into the possession offense.” Id. at ¶

16. The Court emphasized that R.C. 2925.01(G)(4) defines a “drug abuse offense”

to include any attempt to commit a violation of R.C. 2925.11. Id. at ¶ 11. Thus, the

court reasoned that the crime of attempted possession was one of the crimes

delineated in R.C. 2925.11, and therefore R.C. 2925.11 controlled the sentencing

for that crime. Id. at syllabus.

       {¶22} The holding in Taylor has been distinguished by multiple Ohio

Appellate Courts and largely limited to the “possession of drugs” statute, R.C.

                                        -14-
Case No. 2-24-04


2925.11. In State v. Garner, 2012-Ohio-3262, (8th Dist.), the Eighth District Court

of Appeals considered whether “Attempted Failure to Comply” constituted a prior

conviction of “division (B) of this [Failure to Comply] section” such that a prison

term should be imposed consecutively to any other prison term imposed on the

offender. The Eighth District determined that unlike in Taylor, where a criminal

attempt was part of the offense, the statute related to Failure to Comply, R.C.

2921.331,

       delineates the felony level and, in some instances, additional penalties
       for defendants who violate R.C. 2921.331(C)(4) or (5). However,
       unlike the statute governing “drug abuse offenses,” the crime of
       “attempted failure to comply” is not one of the crimes delineated
       in R.C 2921.331. In fact, unlike the crime of “attempted drug
       possession,” which was at issue in . . . Taylor, R.C. 2921.331 does not
       include the word “attempt” in any of its provisions or definitions.
       Thus, we find no basis to conclude that the legislature intended
       “attempted failure to comply” to be a crime incorporated in R.C.
       2921.331. See State v. Wilson, 1st Dist. No. C–090436, 2010–Ohio–
       2767.

Garner at ¶ 17. The Eighth District continued by stating that,

       as set forth in R.C. 2901.04(A), “sections of the Revised Code
       defining offenses or penalties shall be strictly construed against the
       state, and liberally construed in favor of the accused.” Accordingly,
       any ambiguities in R.C. 2921.331 and 2923.02 must be interpreted in
       appellant’s favor. With R.C. 2901.04(A) in mind, we hold that the
       trial court erred in determining that it was mandated to impose a
       consecutive prison term in this case pursuant to R.C. 2921.331(D).

Id. at ¶ 18.




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Case No. 2-24-04


       {¶23} Other cases addressing other statutes have come to the same

conclusion as the Eighth District Court of Appeals in Garner. For example, in State

v. Hoselton, 2011-Ohio-1396, (6th Dist.), the appellant was required to register as a

sex offender as a result of a prior qualifying conviction. He was subsequently

convicted of “attempted failure to report.” Later, he was convicted in a new case of

failure to verify his address in violation of R.C. 2950.06. The trial court imposed a

mandatory three-year prison term pursuant to sentencing enhancement provisions

in R.C. 2950.99 that elevate the penalty if the defendant had a prior conviction for

certain enumerated failure to report crimes. The Sixth District determined that a

prior conviction for “attempted failure to report” was not contained in the plain

enhancing language of the penalty provision of R.C. 2950.99, thus an “attempted”

violation did not qualify to enhance the offense. Id. at ¶ 10.

       {¶24} Similarly, in State v. Wilson, 2010-Ohio-2767, (1st Dist.), a defendant

was convicted of “Attempted Failure to Register.” The trial court sentenced Wilson

to a mandatory prison term under R.C. 2950.99 for repeat nonreporting offenders.

Wilson argued that the general felony sentencing laws should apply, not R.C.

2950.99, since he had been found guilty of only “attempt.” The First District agreed,

finding that there was no basis to “conclude that the legislature intended ‘attempted

failure to register’ to be a crime incorporated in R.C. 2950.99.” Id. at ¶ 7. Stated

differently, because R.C. 2950.99 did not expressly include an “attempt” in its

penalty enhancement provision, an “attempt” did not qualify.

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       {¶25} The statute at issue in this case, R.C. 2907.05(C)(2), is far more similar

to R.C. 2921.331 or R.C. 2950.99 than it is to R.C. 2925.11. In R.C. 2907.05(C)(2),

there is simply no indication that an “attempt” of a crime was intended to be

incorporated in the penalty provision. In fact, the word “attempt” does not appear in

R.C. 2907.05 at all.

       {¶26} We do understand the State’s argument that an “attempt” of a crime

necessarily implicates the crime attempted, but that does not mean that the defendant

is convicted of anything other than a criminal attempt. If the legislature intended for

an “attempted” violation of R.C. 2907.05 to be an enhancing factor, it could have

simply stated as much. See State v. Beckwith, 2017-Ohio-4298, ¶ 24 (8th Dist.)

(“Thus, following these precedents, we also apply the plain and unambiguous

meaning of R.C. 2950.99 and decline to insert into the statute the word “attempt.”).

       {¶27} A review of another section of the Revised Code related to sex

offender registration indicates that if the legislature had intended an “attempt” to

enhance the offense in R.C. 2907.05(C)(2), the legislature would have stated as

much. Revised Code 2950.01(A)(14) defines “sexually oriented offenses” for

purposes of sex offender registration. It states that a “sexually oriented offense” for

purposes of sex offender registration specifically includes an “attempt” to commit a

violation of, inter alia, R.C. 2907.05. The same or similar language is not included

in the penalty enhancement provision of R.C. 2907.05(C)(2).



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        {¶28} To make the penalty enhancing language in R.C. 2907.05(C)(2) more

directly similar to the language the Supreme Court of Ohio analyzed in the

“possession of drugs” statute in Taylor, supra, the legislature would have needed to

state something akin to “if the offender previously was convicted of or pleaded

guilty to a ‘sexually oriented offense’ as defined in R.C. 2950.01 then the penalty

becomes mandatory.” In that situation, an “attempt” would be statutorily included

by reference in a similar manner to Taylor’s analysis of R.C. 2925.11. But that is

not the case before us.

        {¶29} Here, the absence of the “attempt” language in R.C. 2907.05(C)(2)

suggests that an “attempted GSI” of a child under thirteen was never intended to be

an enhancing offense. At the very least, Revised Code sections defining offenses or

penalties should be strictly construed against the State and liberally construed in

favor of the accused. R.C. 2901.04(A).

        {¶30} Simply put, by reviewing the plain statutory language, and the case

authority interpreting “attempted” violations of various statutes, we find that it was

error for the trial court to determine that “Attempted GSI” enhanced the penalty in

this case under R.C. 2907.05(C)(2). This error alone would warrant reversal for a

new trial. However, it was not the only error of significance that occurred in this

case.

        Should “admissions” have been presented to the jury regarding
        Risch’s prior convictions for GSI of a 14-year-old and a 15-year-old?


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Case No. 2-24-04


       {¶31} At the outset, we emphasize that the discussion of R.C. 2907.05(C)(2)

at the March 5, 2024 hearing contained a fatal flaw. When the trial court recited the

language of R.C. 2907.05(C)(2) at page 22 of the transcript, the trial court omitted

the portion related to the victim being thirteen years of age or less. Revised Code

2907.05(C)(2) plainly does not have enhancing language for simply having a prior

GSI conviction. Nevertheless, the parties seemed to proceed as though GSI of a 14-

year-old and a 15-year-old would enhance the offense and thus the prior convictions

could be presented to the jury. The “admissions” were prepared and sent to the jury.

       {¶32} There are limited circumstances where a defendant’s prior convictions

are admissible at trial. Here, Risch did not testify and the State presented no

evidence regarding his prior actions/convictions under Evid.R. 404(B). Even with

the trial court’s (erroneous) pretrial ruling that Risch’s prior conviction for

Attempted GSI of an individual under thirteen was an enhancing element in this

case that needed to be determined by the jury, there is no established relevance to

Risch’s prior convictions for GSI of a 14-year-old or of a 15-year-old. Those

convictions are not enhancing elements and they should not have been presented to

the jury.

       {¶33} Further, there is no established relevance to the extra language

included in Defendant’s Exhibit A that Risch was convicted of Attempted GSI of a

female “between the ages of 6 and 7[.]” The only language that needed to be

included in the “admission” under the trial court’s ruling regarding the Attempted

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GSI conviction was that Risch had a prior conviction of Attempted GSI of an

individual under thirteen. All of the remaining information is irrelevant and highly

prejudicial.

       {¶34} The Supreme Court of Ohio has stated as follows regarding the

erroneous introduction of prior convictions:

       The existence of a prior offense is such an inflammatory fact that
       ordinarily it should not be revealed to the jury unless specifically
       permitted under statute or rule. The undeniable effect of such
       information is to incite the jury to convict based on past misconduct
       rather than restrict their attention to the offense at hand. For this
       reason, we do not consider the trial court’s admonitions to the jury
       that appellee’s prior convictions are immaterial to his guilt of the
       present charge sufficient to cure the error. Nor are we persuaded that
       appellee would have been convicted absent the disclosure to the jury
       of appellee’s two prior convictions.

State v. Allen, 29 Ohio St.3d 53, 55 (1987).

       {¶35} We find that it was error for defense counsel to admit to information

that was so highly prejudicial and inadmissible based on the evidence presented at

trial and it was error for the trial court to permit the introduction of the prior

convictions. Moreover, the inflammatory nature of the prior offenses was not cured

by the instructions of the trial court. The trial court stated that the information was

only received because

       a prior conviction of Attempted Gross Sexual Imposition of a victim
       under the age of thirteen (13) is an element of some of the offenses
       charged. . . . It was not received, and you may not consider it, to prove
       the character of the Defendant in order to show that he acted in
       conformity to, or in accordance with that character. It does not follow
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Case No. 2-24-04


       from the Defendant’s past acts that he committed the particular crimes
       charged in this case. The State has the burden of proving each element
       of the particular crimes currently at trial beyond a reasonable doubt.
       The State cannot satisfy its burden merely by implying that the
       Defendant committed these crimes because his other acts suggest a
       propensity to commit crimes.

(Tr. at 721). Notably, although the trial court’s instructions reference Risch’s

admissions in Defendant’s Exhibit A, the trial court does not specifically instruct

the jury how to consider or apply the GSI convictions of the 14-year-old or the 15-

year-old.

       {¶36} Regardless, even assuming the trial court’s instructions applied to

Defendant’s Exhibit A as a whole and not only to the conviction related to a victim

under the age of thirteen, it is not sufficient to cure the prejudice here. In Old Chief

v. United States, 519 U.S. 172 (1997), the Supreme Court of the United States held

that “Where a prior conviction was for a gun crime or one similar to other charges

in a pending case the risk of unfair prejudice would be especially obvious * * *.” Old

Chief at 185. Here, the prior convictions were for GSI against minors and Risch was

facing charges for, inter alia, GSI against minors. This evidence “would be arresting

enough to lure a juror into a sequence of bad character reasoning[.]” Old Chief at

185. As we have stated previously, a curative instruction cannot cure instances

where the prejudice is so great that it is impossible to “unring the bell.” State v.

Bruce, 2023-Ohio-3298, ¶ 114 (3d Dist.), citing Tumblin v. State, 29 So.3d 1093,

1102 (Fla. 2010).


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Case No. 2-24-04


        {¶37} Moreover, we are unpersuaded by the State’s claim that if there was

any error here, it was “invited error.” The “errors” were made by defense counsel

and the trial court. Further, the errors were of such gravity that the fundamental

fairness of the trial is in question. Moreover, courts have refused to apply the invited

error doctrine where there is no colorable trial strategy that would support the

invited error. State v. James, 2015-Ohio-4987, ¶ 29 (8th Dist.) (“We refuse to apply

the rule that the invited error doctrine forbids consideration of ineffective assistance

of counsel claims based on the invited error doctrine because there is no colorable

trial strategy that would support the invited error.”).

        {¶38} In sum, after reviewing the record and the arguments of the parties, we

find that it was error for the trial court to determine that “Attempted GSI” was an

enhancing offense in this case under R.C. 2907.05(C)(2). We also find that the

introduction of Defense Exhibit A was erroneous because it contained extraneous,

inadmissible, and highly inflammatory information. Further, we find that the errors

were prejudicial and warrant reversal for a new trial. Therefore, Risch’s fourth

assignment of error is sustained and this case is remanded to the trial court for a new

trial.5 See State v. Bruce, 2023-Ohio-3298, ¶ 115 (3d Dist.).




5
 We emphasize that our holding is not intended to suggest that the State’s case against Risch was unfounded
or that the evidence of the witnesses was somehow unpersuasive.

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Case No. 2-24-04


       {¶39} As Risch’s fourth assignment of error has been sustained and his

convictions have been reversed, his remaining assignments of error are rendered

moot, and we will not further address them.

                                    Conclusion

       {¶40} Having found error prejudicial to Risch in the particulars assigned and

argued, his fourth assignment of error is sustained and this cause is reversed and

remanded for a new trial. The remaining assignments of error are moot.

                                        Judgment Reversed and Cause Remanded



ZIMMERMAN and MILLER, J.J., concur.

/jlm




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                            JUDGMENT ENTRY

       For the reasons stated in the opinion of this Court, the fourth assignment of

error is sustained and it is the judgment and order of this Court that the judgment of

the trial court is reversed with costs assessed to Appellee for which judgment is

hereby rendered. The cause is hereby remanded to the trial court for further

proceedings and for execution of the judgment for costs.

       It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.




                                            Juergen A. Waldick, Judge



                                            William R. Zimmerman, Judge



                                            Mark C. Miller, Judge

DATED:
/jlm




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