[Cite as In re K.M., 2024-Ohio-2278.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: K.M. : APPEAL NOS. C-230541 C-230542 : TRIAL NOS. 22-1666X 22-1667X :
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: June 14, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After a mistrial and a quick restart, the juvenile court in the trial of
defendant-appellant K.M. (on multiple counts of gross sexual imposition (“GSI”))
faced difficult, day-of-trial decisions regarding whether to admit damaging evidence
of prior bad acts and hearsay statements from the victims amidst a complex
evidentiary environment. Although we ultimately conclude the juvenile court erred in
admitting certain evidence of K.M.’s prior bad acts, we nonetheless determine that its
error was harmless and that the juvenile court committed no other errors raised by
K.M. We therefore affirm K.M.’s two adjudications of gross sexual imposition under
R.C. 2907.05, overruling his three assignments of error.
I.
{¶2} The state charged K.M., who was born in 2006, with three counts of
what would be GSI under R.C. 2907.05(A)(4) if he had been charged as an adult, for
alleged sexual contacts with two minor children. The first, L.M., was born in 2013 and
describes K.M. as her cousin, and the second, M.G., was also born in 2013 and
describes K.M. as related to a family friend. The two separate incidents relating to
over-the-clothes touching of L.M. and M.G. that resulted in K.M.’s adjudications took
place in late 2021, and the juvenile court dismissed a third allegation regarding an
earlier touching of M.G.
{¶3} The cause was initially tried before a magistrate in April 2023, resulting
in a mistrial after a witness for the prosecution spoke about a victim’s testimony with
the magistrate outside of official court proceedings. Prior to that initial trial, the state
filed a notice of intent to introduce other acts evidence pursuant to Evid.R. 404(B) and
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R.C. 2945.59 regarding an alleged prior sexual assault of M.G. by K.M., which the state
claimed would establish K.M.’s modus operandi.
{¶4} However, at the outset of K.M.’s new trial in June 2023, the state moved
to withdraw the notice of intent, and the juvenile court granted the motion. But the
state’s plans changed again during the trial testimony of a social worker, Stephanie
Helton, who had interviewed M.G. at the Mayerson Center for Safe and Healthy
Children (“Mayerson Center”) in 2022. On cross-examination, K.M. asked Ms. Helton
whether M.G. had spoken to the police prior to the interview. Ostensibly, the point
defense counsel sought to establish was that it was not best practice to interview an
alleged child victim after the child already discussed the relevant incident with the
police. She confirmed that M.G. disclosed speaking with Detective Andrew Stoll prior
to the interview, but she did not discuss (nor did K.M. ask about) what M.G. told the
detective or what she and M.G. talked about at the time M.G. told her about the
interaction with the police.
{¶5} On redirect, the juvenile court allowed the state to ask Ms. Helton about
what she and M.G. discussed when M.G. mentioned speaking to the police, concluding
that K.M. had opened the door to her testimony on that matter. Ms. Helton then
explained that, around the time M.G. disclosed his police contact, she and M.G. had
been discussing an incident from “when he was younger” where K.M. pulled down
M.G.’s pants, touched his butt, and anally and orally penetrated him. K.M. objected
to the statements on grounds of relevance, unfair prejudice, and improper other acts
evidence under Evid.R. 404(B), and the court overruled his objections based on the
door opening.
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{¶6} Also during trial, M.G. testified about a December 2021 incident in
which K.M. “smacked” his butt in the kitchen at a relative’s home. Although he
identified his “private part and [] butt” as places where no one should touch him and
said “yes” and identified K.M. when the state asked whether anyone had ever touched
him there, M.G. otherwise did not testify about any specific time that K.M.
inappropriately touched him, including during the December 2021 incident.
{¶7} During Ms. Helton’s testimony, the state played a video recording of her
interview with M.G., including portions where he described K.M. grabbing him on his
butt and on the “bottom” of his private part over his clothes. The court admitted the
approximately 30-minute video into evidence with M.G.’s statements about the prior
assault allegation redacted, overruling K.M.’s hearsay objection and holding the
balance of the statement admissible under the hearsay exception for statements made
for the purposes of medical diagnosis or treatment, Evid.R. 803(4).
{¶8} Later, the state recalled M.G. to the stand, at which point he testified
about observing K.M. and L.M. under the covers on top of K.M.’s bed. L.M. then
briefly testified that K.M. touched her private part over her clothes once as they sat on
his bed in the basement of his house. She added that she felt weird afterwards and
shared the episode with M.G. As with M.G., the state called a social worker, Ashley
Cremeans, to testify, as she had interviewed L.M. at the Mayerson Center in 2022.
Again, the state played portions of her interview with L.M. and moved the recording
into evidence over K.M.’s hearsay objection. In the video, L.M. did not recall anyone
touching her inappropriately until Ms. Cremeans mentioned that her mother raised
that concern. L.M. then recalled, otherwise unprompted and without Ms. Cremeans
mentioning K.M.’s name, that K.M. touched her private part while they were on top of
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his bed and that she told M.G. afterwards, substantially aligning with what she later
said at trial.
{¶9} Detective Stoll testified that he started this investigation after M.G.’s
mother reported that he told a school therapist that K.M. had touched his private part
and that M.G. was scared because K.M. “had previously assaulted him sexually a
couple of times in the past.” The court cut off Det. Stoll’s answer at that point and
indicated that his statement was not taken for the truth of the matter asserted. On
cross-examination, defense counsel questioned if he remembered asking K.M. about
doing the alleged sex acts because he was “in puberty and you’re a little horny or is it
because you watched videos?” Counsel then asked the question again, without
mentioning “videos.” Det. Stoll responded, “I did ask him that,” and the defense
queried, “So that’s your belief?” At that point, Det. Stoll explained that in his
experience, kids are routinely exposed to pornography at a young age and then
sometimes act out the sex acts that they witness. K.M. objected to hearsay, and the
court overruled the objection because the defense first asked about “videos,” opening
the door to more testimony about them. The court denied the state’s attempt to admit
additional, related evidence under Evid.R. 404(B), but it did allow some additional
testimony on K.M.’s alleged viewing of pornography over his objections.
{¶10} After trial, the juvenile court adjudicated K.M. as delinquent on two GSI
charges—one relating to M.G. and the other relating to L.M. In its oral findings of fact,
the court found the victims’ testimony credible because they used their own words and
relayed the incidents to each other. It also found that, in their forensic interviews,
“they remained as sophisticated as kids can be and as credible as they could the entire
time.” It chalked up “any sort of inconsistencies” to the victims’ “age, being a kid and
5 OHIO FIRST DISTRICT COURT OF APPEALS
not understanding the gravity of what happened to them and what they were
explaining.” At the dispositional hearing, the court ordered K.M. to stay away from
the victims, placed him on probation, imposed a suspended commitment to the
Department of Youth Services, and ordered him to complete a residential program at
a youth facility as a condition of probation. K.M. now appeals, asking us to reverse the
adjudications and remand the cause for a new trial, presenting three assignments of
error.
II.
{¶11} In his second assignment of error, which we address first, K.M. ascribes
error to the court’s admission of M.G.’s and L.M.’s statements from their Mayerson
Center forensic interviews with Ms. Helton and Ms. Cremeans, respectively, in
addition to video recordings of those interviews. The court determined the statements
constituted hearsay but found them admissible under the exception for statements
made for medical diagnosis or treatment. Evid.R. 803(4). Although the standard of
review for hearsay determinations differs between Ohio appellate districts, this district
has held that the abuse of discretion standard applies, and we review the admission of
hearsay evidence based on the Evid.R. 803(4) exception under that same standard.
HSBC Bank USA, Natl. Assn. v. Gill, 2019-Ohio-2814, 139 N.E.3d 1277, ¶ 1-5 (1st Dist.)
(collecting cases and determining that the abuse of discretion standard applies); see
State v. Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 7-8 (1st
Dist.) (applying the abuse of discretion standard in the context of Evid.R. 803(4)).
{¶12} This court has previously established that “[t]he trial court’s
determination of whether the child’s statements were for the purpose of medical
diagnosis or treatment depends upon the facts of the particular case” with relevant
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considerations including: “(1) whether the child was questioned in a leading or
suggestive manner; (2) whether a motive to fabricate existed, such as a custody battle;
(3) whether the child understood the need to tell medical personnel the truth; (4) the
child’s age; and (5) the consistency of the child’s declarations.” Lukacs at ¶ 7, citing
State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 49 (applying
those factors to conclude a similar disclosure by a child victim to a therapist was
admissible under Evid.R. 803(4)). In Lukacs, the jury viewed a video recording of an
interview with a child victim of sexual assault. Lukacs at ¶ 4. Applying the standard
noted above, we held that the recording was admissible because it “was part of an
ongoing attempt to determine the extent of the sexual abuse and the appropriate
treatment for the victim,” and because the interviewer did not use leading questions,
no motive to fabricate existed, and the statements were consistent with the physical
evidence. Id. at ¶ 8.
{¶13} Similarly, in a subsequent case applying the Lukacs factors, we held that
a child’s allegations of sexual abuse made during a Mayerson interview were
admissible as a hearsay exception, despite being initially inconsistent, because the
purpose of the interview was to assess safety “both in a physical and psychological
sense,” the social worker’s questions were open-ended and not leading, and the
witness knew the difference between the truth and a lie and had no motive to lie. State
v. Bowers, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, ¶ 23; see State v. Ridder,
1st Dist. Hamilton No. C-150460, 2016-Ohio-5195, ¶ 9 (holding the same on similar
grounds). These cases help guide our present inquiry.
{¶14} Here, M.G.’s interview took place at a hospital (the Mayerson Center),
and Ms. Helton testified that “before the interview began, I let him know that we did
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have a medical doctor there, and that if he had worries or concerns about his body,”
he should express those concerns, and she could share those with the doctor. Although
the state acknowledges the objective of interviews at the Mayerson Center is neither
exclusively medical nor forensic, this context appears similar to what we considered
sufficiently medical in Lukacs, Bowers, and Ridder. Further, Ms. Helton’s
questioning was gentle, often open-ended, and not phrased to suggest answers to M.G.
K.M. did not contend that M.G. had a motive to lie, and we see none in the record. Ms.
Helton established the need for M.G. to tell the truth at the beginning of the interview
and confirmed through several questions that he understood the nature of telling the
truth and lying. Finally, despite K.M.’s assertions to the contrary, M.G.’s statements
were substantially consistent. He mentioned being smacked on the butt and touched
inappropriately, and later explained in more detail when, how, and where it happened.
Therefore, the court did not abuse its discretion in admitting M.G.’s statements and
the recording of his interview with Ms. Helton as a hearsay exception under Evid.R.
803(4).
{¶15} The same holds true for L.M.’s statements and interview. Ms. Cremeans
told L.M. at the start of the interview that “it was to talk with her about keeping her
body safe and healthy.” She explained the importance of telling the truth, and L.M.
agreed to tell the truth. Ms. Cremeans gently asked mostly open-ended questions and
did not lead L.M. or suggest answers. Although L.M. did not mention the incident
with K.M. until more than 30 minutes into the interview, despite Ms. Cremeans asking
earlier if she had ever been touched inappropriately, she independently recalled
specific details of the incident after Ms. Cremeans mentioned that L.M.’s mom raised
concerns about inappropriate touching. L.M. recalled that her cousin, K.M., “grabbed”
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her and touched her “no-no spot” on top of her clothes and identified her private part
without being led by Ms. Cremeans. The court thus did not abuse its discretion in
admitting L.M.’s statements and the recording of the interview as a hearsay exception
under Evid.R. 803(4).
{¶16} Therefore, because the recordings of M.G.’s and L.M.’s Mayerson Center
interviews were both admissible under the hearsay exception for statements made for
medical treatment, Evid.R. 803(4), we overrule K.M.’s second assignment of error.
III.
{¶17} Next, we address K.M.’s first assignment of error, in which he contends
that the juvenile court erred by admitting two types of other acts evidence based on
his opening the door: (1) evidence that he watched pornography, and (2) evidence
regarding an alleged sexual interaction between him and M.G. that took place years
before the charged acts. He argues that even if the door was opened, the juvenile court
should not have admitted the evidence because it was propensity-based and was
substantially more prejudicial than probative and thus should have been excluded
under Evid.R. 404(B).
{¶18} Evid.R. 404(B) “generally bars evidence of other crimes, wrongs, or acts
as pure propensity evidence—that is, when utilized to establish a person’s character
trait and their conformity in the present case with that trait.” State v. Sowders, 1st
Dist. Hamilton No. C-230153, 2023-Ohio-4498, ¶ 10, citing Evid.R. 404(B)(1), and
State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975); see R.C. 2945.59. In
assessing the admissibility of evidence under Evid.R. 404(B), the court first
“evaluate[s] whether the evidence is relevant to the particular purpose for which it is
offered,” which we review de novo. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-
9 OHIO FIRST DISTRICT COURT OF APPEALS
4440, 161 N.E.3d 651, ¶ 22, 26; see State v. McDaniel, 2021-Ohio-724, 168 N.E.3d 910,
¶ 17 (1st Dist.). Second, we determine, also de novo, whether the other acts were
introduced as improper propensity evidence or for a permissible non-propensity
purpose under Evid.R. 404(B)(2). Hartman at ¶ 22. Finally, we assess the evidence’s
probative value against its risk of unfair prejudice under Evid.R. 403(A), reviewing the
juvenile court’s determination on that matter for an abuse of discretion. Id. at ¶ 29-
30; McDaniel at ¶ 17.
{¶19} Even when evidence is otherwise inadmissible, the defendant might not
be able to take advantage of that error on appeal if they opened the door to its
admission. “ ‘The term “opening the door” is based upon the doctrine of “invited
error.” ’ ” McDaniel at ¶ 11, quoting In re Bailey, 1st Dist. Hamilton No. C-990528,
2001 WL 477069, 1 (May 2, 2001). “This doctrine ‘prohibits a party who induces error
in the trial court from taking advantage of such an error on appeal.’ ” Id., quoting In
re Bailey at 1. But prying “open the door” does not justify opening the floodgates for
prejudicial evidence. Id. at ¶ 13. “ ‘[T]he doctrine is to prevent prejudice and is not to
be subverted into a rule for injection of prejudice.’ ” (Emphasis deleted.) 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). Ultimately, “[t]he introduction of
otherwise inadmissible evidence under the ‘shield of this doctrine is permitted “only
to the extent necessary to remove any unfair prejudice which might otherwise have
ensued from the original evidence.” ’ ” Bronner at ¶ 73, quoting Winston at 1240,
quoting California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir.1956).
A.
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{¶20} The first category of evidence challenged by K.M. under this assignment
concerns Det. Stoll’s testimony that K.M. watched pornographic videos along with the
detective’s statements about the potential role that watching pornography might have
played in the alleged assaults. The court admitted this testimony after defense counsel
cross-examined Det. Stoll about his interview with K.M., in which Det. Stoll asked
K.M. whether he did the alleged sex acts because he was “in puberty and you’re a little
horny or is it because you watched videos?” Across 50-some pages of the trial
transcript, the parties debated whether K.M. opened the door to Det. Stoll’s
subsequent testimony (and about playing related portions of his interview with K.M.
on redirect) by quoting that question back to Det. Stoll and asking about it. To
summarize that odyssey, the juvenile court determined K.M. opened the door to Det.
Stoll’s testimony and some portions of the recording that related to K.M.’s alleged
history of viewing pornography because K.M. asked about “videos,” but the court
denied the state’s midtrial Evid.R. 404(B) motion to introduce more evidence relating
to it.
{¶21} We agree that K.M. opened the door to the testimony and to related
portions of the recording. K.M.’s apparent goal in asking the question was to establish
the content of Det. Stoll and K.M.’s conversation, including K.M.’s response to the
detective’s question—that he had a girlfriend and therefore did not watch much
pornography. By raising that point on cross-examination, K.M. opened the door to
Det. Stoll’s testimony about the nature of the videos and why it was relevant to his
investigation. The state then permissibly used the video recording of his interview
with K.M. as demonstrative evidence to facilitate Det. Stoll’s testimony. The final
version of the recording admitted into evidence included Det. Stoll’s questions about
11 OHIO FIRST DISTRICT COURT OF APPEALS
pornography, including the question and answer about which K.M. cross-examined
Det. Stoll, with other portions redacted.
{¶22} Ultimately, we conclude that everything the juvenile court allowed into
evidence relating to K.M.’s viewing of pornography was fair game considering K.M.’s
questions on that topic, and the evidence did not inject unfair prejudice against K.M.
into the proceedings. Unlike the statements about K.M.’s alleged prior assault, which
we address next, the evidence of his alleged history with pornography lacks an
inflammatory sting in this context. And in addition to denying the state’s midtrial
Evid.R. 404(B) motion to introduce further evidence about K.M.’s history with
pornography and the potential role it might have played in his behaviors with M.G.
and L.M., the juvenile court closely parsed the video evidence and instructed the state
to exclude improper portions related to it. Further, our review of the record indicates
no additional evidence on this topic was admitted. Thus, we conclude the juvenile
court properly limited the scope of pornography-related evidence to the narrow aspect
opened by K.M., and overwhelming evidence in the record indicates that the court did
not consider it as propensity evidence or for some other improper purpose.
{¶23} Therefore, we see no infirmity under Evid.R. 404(B), and the juvenile
court properly limited the scope of the pornography evidence to what was invited by
K.M.
B.
{¶24} The second episode at issue under K.M.’s first assignment of error
concerns Ms. Helton’s testimony, elicited by the state on redirect examination, that
M.G. told her (and the police) about an allegation of past sexual abuse against him by
12 OHIO FIRST DISTRICT COURT OF APPEALS
K.M., including anal and oral penetration. These statements were highly prejudicial,
suggesting far more graphic allegations against K.M. than what was at issue in the case
before the juvenile court. Nonetheless, the juvenile court concluded that K.M. opened
the door to the content of these statements. Upon a close review of the trial record, we
disagree.
{¶25} The purported door opening occurred when K.M. cross-examined Ms.
Helton about whether she remembered M.G. saying that he had talked to the police
before his interview with her. But K.M. did not ask about the content of those
statements and referenced that part of M.G.’s interview for an alternative purpose: to
establish that M.G. had spoken to the police about alleged abuse by K.M. prior to his
interview. As K.M. established in his cross-examination of Ms. Helton, this prior
disclosure could increase the risk of coached answers from the victim. Merely by
establishing the timeline of M.G.’s disclosures, K.M. did not introduce a risk of unfair
prejudice to the state that would necessitate it presenting evidence about the
accusation of past abuse. In fact, the state first established the fact that M.G. spoke to
the police through M.G.’s testimony. By asking Ms. Helton about that fact, K.M.
merely took a known fact and emphasized its timing. To the extent the state sought to
counteract any potential coaching, it could have redirected Ms. Helton about the
circumstances of her interview without exploring the content of M.G.’s prior
allegations. Ultimately, then, we conclude that K.M. did not open the door for Ms.
Helton to testify about the content of M.G.’s statements to her regarding prior abuse
by K.M. See McDaniel, 2021-Ohio-724, 168 N.E.3d 910, at ¶ 12, 13, 22.
{¶26} Given that K.M. did not open the door to the content of M.G.’s
statements regarding prior abuse, the statements were inadmissible if Evid.R. 404(B)
13 OHIO FIRST DISTRICT COURT OF APPEALS
did not permit their admission for a nonpropensity purpose. The state contends that
introducing the content of the statements was necessary for “clarification of the proper
context” after K.M. put M.G.’s “veracity, his reliability, and his motivation for
disclosing the abuse” at issue. That argument runs into two problems: the state
introduced evidence about M.G. speaking to the police first, and the content of M.G.’s
statements about prior abuse was not necessary to rebut K.M.’s critique of his
interview with Ms. Helton. Even if the statements did help clarify why M.G.
mentioned speaking to police prior to his Mayerson interview, Ms. Helton easily could
have limited her testimony to stating generally that they had been talking about an
incident of prior abuse without disclosing specific, highly inflammatory details.
{¶27} Additionally, although the juvenile court overruled K.M.’s Evid.R.
404(B) objection after the statements were introduced, it seemed to acknowledge the
high risk of prejudice by stating, “I understand and see now why the 404(B) evidence
was agreed to be excluded,” referring to the state’s withdrawn notice of Evid.R. 404(B)
evidence regarding M.G.’s accusation of a prior assault. Similarly, we see no
permissible purpose for introducing the content of M.G.’s statements regarding prior
abuse, and the risk of prejudice due to its highly inflammatory nature substantially
outweighs its probative value regarding whether K.M. committed the act in question.
Therefore, the statements should have been excluded under Evid.R. 404(B).
{¶28} Even though we conclude that the juvenile court improperly admitted
evidence of M.G.’s accusations of prior sexual assault by K.M. without the defense
opening the door to it, we must measure that error against the harmless error
standard. See McDaniel, 2021-Ohio-724, 168 N.E.3d 910, at ¶ 23. Under Crim.R.
52(A), “[a]ny error, defect, irregularity, or variance which does not affect substantial
14 OHIO FIRST DISTRICT COURT OF APPEALS
rights shall be disregarded.” Applying that rule to determine whether an error
warrants reversal:
(1) “There must be prejudice to the defendant as a result of the
admission of the improper evidence at trial”; (2) “an appellate court
must declare a belief that the error was not harmless beyond a
reasonable doubt,” i.e., that there was “no reasonable possibility that the
testimony contributed to the accused’s conviction”; and (3) “in
determining whether * * * the error is harmless beyond a reasonable
doubt, the court must excise the improper evidence from the record and
then look to the remaining evidence.”
State v. Benson, 1st Dist. Hamilton No. C-180128, 2019-Ohio-3255, ¶ 23, quoting State
v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153 ¶ 24, 27-29; see State
v. O’Connell, 2020-Ohio-1369, 153 N.E.3d 771, ¶ 31 (1st Dist.).
{¶29} “[P]ropensity evidence is inherently prejudicial,” McDaniel at ¶ 24, and
it would be difficult to argue that the inflammatory statements did not at least color
the factfinder’s view of K.M., even in a bench trial. But after excising that testimony,
the evidence still supports K.M.’s adjudication for gross sexual imposition regarding
M.G.
{¶30} K.M.’s adjudication primarily rests upon M.G.’s testimony at trial and
the recording of his interview with Ms. Helton. At trial, M.G. had trouble recalling
anything about the December 2021 incident except K.M. smacking his butt and how it
made him feel uncomfortable because that is a part of the body that others should not
touch. M.G. also identified his private part and butt and said, “Yes” when asked, “Has
15 OHIO FIRST DISTRICT COURT OF APPEALS
anyone ever touched you there?” Although he then identified K.M., he did not testify
to a specific touching of his private part.
{¶31} But in M.G.’s recorded interview with Ms. Helton, M.G. recalled, in
detail, K.M. touching him inappropriately in December 2021. As we concluded above,
the juvenile court properly admitted this critical part of the video under a hearsay
exception. It includes discussion of the relevant accusations but, notably, excludes any
references to the allegation of a prior assault. Thus, the redacted video admitted into
evidence bolsters the fact, apparent from the trial record, that the juvenile court
consistently tried to keep out unfairly prejudicial evidence and to insulate itself from
hearing it. Additionally, the record ultimately supports the juvenile court’s credibility
findings regarding M.G. and Ms. Helton, and none of its findings reference M.G.’s
statements to Ms. Helton about K.M.’s earlier abuse.
{¶32} Furthermore, apart from its error in admitting evidence too directly
describing M.G.’s accusation of prior abuse by K.M., the juvenile court took extensive
measures to insulate itself from other evidence about the matter, including excluding
other evidence about the prior incident. It cautioned the state about introducing
details about the accusation before and after it was mentioned, noting the risk of
introducing improper other acts evidence. Once it determined that the door was
opened, it only allowed in Ms. Helton’s testimony about the accusation and did not
admit other testimony or evidence on the matter. For example, when Det. Stoll
mentioned M.G.’s fear due to prior assaults by K.M., the court cut him off and
instructed itself that the evidence was not taken for the truth of the matter asserted.
Finally, it carefully parsed the video evidence and instructed the state to redact any
mentions of alleged prior abuse, much of which the state had already preemptively
16 OHIO FIRST DISTRICT COURT OF APPEALS
excluded. Thus, we see no indication that the juvenile court improperly considered
evidence of M.G.’s accusations of prior abuse by K.M.
{¶33} We therefore have confidence, beyond a reasonable doubt, that even
though the juvenile court erred by allowing the statements into evidence, it excluded
consideration of M.G.’s allegation of prior assault by K.M. from its decision to
adjudicate K.M. at trial. Accordingly, although the juvenile court erred in admitting
the statements into evidence, its error was harmless, and we overrule K.M.’s first
assignment of error regarding the improper admission of other acts evidence under
Evid.R. 404(B).
IV.
{¶34} Finally, in his third assignment of error, K.M. challenges his
adjudications as not supported by legally sufficient evidence and against the manifest
weight of the evidence. As distinct grounds for appeal, we consider them separately,
in turn.
{¶35} In a sufficiency challenge, “the question is whether the evidence
presented, when viewed in a light most favorable to the prosecution, would allow any
rational trier of fact to find the essential elements of the crime beyond a reasonable
doubt.” State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15. We
assess sufficiency challenges de novo, but “the court is not to weigh the evidence.”
State v. McDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12; see Dent
at ¶ 15. And “in conducting a sufficiency review, a reviewing court must consider all
the evidence admitted at trial, even improperly admitted evidence.” State v. Kareski,
137 Ohio St.3d 92, 2013-Ohio-4008, 998 N.E.2d 410, ¶ 24, citing Lockhart v. Nelson,
488 U.S. 33, 34, 109 S.Ct. 285, 102 L.Ed.2d 265 (1998).
17 OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} K.M. argues the evidence was legally insufficient to establish that the
alleged contact with M.G. and L.M. was for sexual arousal or gratification. The GSI
statute, R.C. 2907.05(A), prohibits certain “sexual contact,” and R.C. 2907.01(B)
defines “sexual contact” as “any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.” The
state correctly observes that the juvenile court can infer a purpose of sexual
gratification based on the “ ‘type, nature and circumstances of the contact, along with
the personality of the defendant.’ ” State v. Hodgkin, 2019-Ohio-1686, 135 N.E.3d
533, ¶ 11 (1st Dist.), quoting State v. Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009
(9th Dist.1991).
{¶37} As described more fully above, M.G. testified generally that K.M.
touched him on his butt and private part, that it caused him discomfort, and that he
told others about it. In his Mayerson interview, he described the conduct in detail,
including K.M. touching him in an inappropriate manner and that he then got away
from K.M. Based on this context and testimony, the juvenile court had sufficient
evidence to infer a sexual purpose for K.M.’s contact with M.G.
{¶38} Supporting the inference of sexual gratification regarding L.M., the
state points to M.G.’s testimony about his concern after seeing K.M. and L.M. under
the covers on K.M.’s bed in the basement because M.G. believed K.M. tends to carry
out improper acts in that room. L.M. testified directly about K.M. touching her
inappropriately over her clothes while they were on his bed and feeling weird about it,
and her testimony aligned with her Mayerson interview. We see no evidence
presented that this was nonsexual behavior, like accidental touching during “innocent
18 OHIO FIRST DISTRICT COURT OF APPEALS
play,” as K.M. suggests. The juvenile court had sufficient evidence that K.M.’s contact
with L.M. had an intent of sexual gratification. Therefore, both of K.M.’s adjudications
were supported by legally sufficient evidence.
{¶39} Separately, in reviewing adjudications against a manifest weight of the
evidence argument, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997). Unlike in a sufficiency challenge, we “review the
entire record, weigh the evidence and reasonable inferences, [and] consider the
credibility of the witnesses.” State v. Barnthouse, 1st Dist. Hamilton No. C-180286,
2019-Ohio-5209, ¶ 6. However, we will reverse the juvenile court’s judgment and
order a new trial only in “ ‘exceptional cases in which the evidence weighs heavily
against the conviction.’ ” State v. Sipple, 2021-Ohio-1319, 170 N.E.3d 1273, ¶ 7 (1st
Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶40} K.M. argues M.G.’s testimony was contradictory and confusing.
Although M.G. only recalled K.M. “smacking” him on the butt during his trial
testimony and did not testify specifically about when K.M. touched his private part,
his Mayerson interview includes much more detail on the incident, including K.M.
touching him on the bottom of his private part. The court found his testimony and
interview credible, and we see no reason to depart from that conclusion, despite M.G.’s
inability to specifically recall certain specific details at trial. Ms. Helton testified about
how a child’s disclosures of abuse come at different times and in different ways, and
the juvenile court seemingly followed that testimony. The court did not lose its way in
adjudicating K.M. regarding M.G.
19 OHIO FIRST DISTRICT COURT OF APPEALS
{¶41} Finally, K.M. contests his adjudication regarding L.M. because she did
not explain specific details about how he touched her, she contradicted herself, and
her Mayerson interview was improperly leading. But L.M. explained in the interview
and at trial how K.M. touched her where she should not be touched, specifically her
private part, when she was on top of his bed in his room. She provided enough details
for the inference that the contact was not accidental and had a sexual gratification
purpose, and K.M. did not present evidence to the contrary. Further, her Mayerson
interview was not leading, and L.M. provided details about the incident without
coaching or suggestions other than Ms. Cremeans mentioning that her mom told the
Center that L.M. was touched inappropriately. The court did not lose its way in
adjudicating K.M. for his contact with L.M.
{¶42} In sum, K.M.’s adjudications for gross sexual imposition regarding M.G.
and L.M. were supported by legally sufficient evidence and were not against the
manifest weight of the evidence. We therefore overrule K.M.’s third and final
assignment of error.
* * *
{¶43} Despite our conclusion that the juvenile court erred by admitting M.G.’s
statements regarding a prior instance of abuse by K.M., the court otherwise aptly
navigated a complicated evidentiary landscape and did not appear to consider the
improper evidence. Because we conclude that the court’s only error was harmless and
because K.M.’s delinquency adjudications were supported by legally sufficient
evidence and were not against the manifest weight of the evidence, we overrule K.M.’s
three assignments of error and affirm the judgments of the juvenile court adjudicating
20 OHIO FIRST DISTRICT COURT OF APPEALS
him on two counts of what would be gross sexual imposition, in violation of R.C.
2907.05, had he been charged as an adult.
Judgments affirmed.
BOCK, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.