State v. Durham

2024 Ohio 3289, 251 N.E.3d 788

• Court: Ohio Court of Appeals
• Decided: August 26, 2024
• Docket: 2023 AP 10 0050
• Status: Published

Opinion

[Cite as State v. Durham, 2024-Ohio-3289.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2023 AP 10 0050 ENRIQUE DURHAM : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2022 CR 08 0291

JUDGMENT: Affirmed in part; Reversed in part

DATE OF JUDGMENT ENTRY: August 26, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RYAN STYER ELICE HARRIS Prosecuting Attorney Harris Law Firm, LLC By: KRISTINE BEARD 6480 E. Main Street, Suite A Assistant Prosecutor Reynoldsburg, OH 43068 125 E. High Avenue New Philadelphia, OH 44663 Tuscarawas County, Case No. 2023 AP 10 0050 2

Gwin, P.J.

{¶1} Defendant-appellant Enrique Durham [“Durham”] appeals his convictions

and sentences after a jury trial in the Tuscarawas County Court of Common Pleas.

Facts and Procedural History

{¶2} H.C. and Durham met when H.C. was 17 years old and Durham was 19

years old. 3T. at 3691. H.C.’s daughter, T.D., was two years old at the time. 3T. at 369.

During their ensuing relationship, Durham changed T.D.'s diapers, bought her clothes

and presents, dressed her, cooked for her, and helped her potty train. 5T. at 575. Durham

and H.C. eventually had their own daughter, K.D. and, by 2022, the couple had been

together for eleven years. 3T. at 369; 5T. at 569. Although T.D. was not his biological

daughter, Durham treated T.D. and K. D. the same. 5T. at 571. The family moved into a

trailer in Sandy Valley and T.D. attended school in the Sandy Valley school district. 3T.

at 370; 383. In the trailer H.C. and Durham had their own bedroom and bathroom and the

girls each had their own bedroom and shared a bathroom. 2T. at 269-270. The girls'

bedrooms were on the opposite side of the trailer from H.C. and Durham. Id.; 3T. at 374.

H.C. discovers Durham has been sexually abusing T.D.

{¶3} On June 14, 2022, at around 8:30 p.m. the family went to bed. 3T. at 374.

H.C. woke up to find Durham gone and went to see if he was outside the trailer smoking

a cigarette. Id. The trailer was dark. H.C. noted that both doors to the trailer were locked

and then went to check on the girls. Id. She observed K.D. in her room sleeping. H.C.

encountered Durham rushing out of T.D.'s bedroom muttering something about a

1 For clarity, the transcript of Durham’s jury trial will be referred to as “__T.__” signifying the volume number and the page number of the transcript. All references are to the version of the transcript filed with Durham’s Motion to Supplement the Record granted by this Court by Judgment Entry filed May 9, 2024. Tuscarawas County, Case No. 2023 AP 10 0050 3

shelf had fallen. 3T. at 374. H.C. entered T.D.’s bedroom and observed one of the

two shelfs on the wall still in place, while the other had fallen to the floor. Id. at 375.

H.C. told T.D. to get out of bed and help take the second shelf down from the wall.

Id. When T.D. looked at H.C. blankly, H.C. repeated her request for help with the

shelving. At that time, T.D. told her mother that she could not help her because “dad

was rubbing lotion on her privates.” Id. H.C. drew back the covers to see that T.D.

had no shorts or underwear on. Durham had returned to the room during this time

standing behind H.C. saying, “[T.D.], come on T.D.” 3T. at 375. H.C. smelled lotion

on Durham’s hand and on T.D.’s “privates.” Id. Later that same night T.D. told H.C.

that it had happened another time when she was in the shower and another time at

night. Id. at 379. She told her mother that “his fingers were in between my lips.” Id.

T.D. testifies that Durham sexually abused her

{¶4} T.D. was born July 20, 2009. 2T. at 267. T.D. testified that, on the night of

June 14, 2022, Durham came into her room and told her to shut the T.V. off. Id. at

276. T.D. turned the T.V. off. T.D. then went to lay down in her bed. Durham

proceeded to go over to where she kept her body lotion, and pumped some lotion

into his hand. He then shut the bedroom light off, went over to T.D., pulled her pants

and her underwear down and started rubbing her “V area and then slipped kind of his

finger inside and then go back out and rub.” 2T. at 276-277. Durham stopped when

he heard H.C. walking down the hallway. As he attempted to rush out of the bedroom,

Durham bumped the shelves on the bedroom wall, causing one to fall. T.D. heard

Durham tell H.C. that he was going to get his tools to fix the shelf. Id. T.D. testified

that when her mother asked her to help with the shelf, her mother got mad and threw Tuscarawas County, Case No. 2023 AP 10 0050 4

the blankets off T.D. revealing that T.D. was naked from the waist down. T.D. testified

that Durham stood behind her mom motioning her not to talk. Id. at 277.

{¶5} T.D. testified that during 2022 when the school year was ending,

Durham touched her while she was naked in the shower, squeezing her breasts,

rubbing her vaginal area and putting his fingers inside her vaginal area. 2T. at 293.

T.D. testified that Durham’s fingers were “[o]utside and then a little bit inside and then

right back outside.” Id. at 294.

{¶6} T.D. admitted that she told Deputy Balash that no digital penetration

occurred on June 14, 2022, because she was scared and felt uncomfortable, even

though Durham was not present, and Balash did nothing to make her uncomfortable.

2T. at 312-314.

The investigation

{¶7} On June 15, 2022, H.C. reported the incident to the Tuscarawas County

Sheriff's Office. 3T. at 382. Deputy Balash was assigned to the investigation. 4T.at

478-479. Deputy Balash was working as a resource officer for the Sandy Valley

School District and planned to meet with H.C. and T.D. at his Sandy Valley office. 4T.

at 481. During his interview, T.D. denied that digital penetration had occurred during the

June 14, 2022 incident. Id. at 516-517.

{¶8} After speaking with H.C. and T.D., Deputy Balash went to the home,

took photos (State's Exhibit 12), and collected T.D.'s shorts and underwear (State's

Exhibit 13). The physical evidence was sent to BCI for forensic analysis. Deputy

Balash also told H.C. to take T.D. to Akron Children's Hospital for a physical exam.

4T. at 482. Tuscarawas County, Case No. 2023 AP 10 0050 5

{¶9} T.D.'s physical examination was normal. 2T. at 238-241. At Akron

Children's Hospital, Erika Eisel conducted a forensic interview with T.D. 2T. at 253.

During the interview, T.D. disclosed that Durham came into her bedroom, took off

her bottoms and underwear, and touched and digitally penetrated her vaginal area.

2T. at 260; 312-313. The forensic interview was digitally recorded and played for the

jury. 2T. at 257; State’s Exhibit 3.

{¶10} After the forensic interview and physical exam, T.D. was referred to

Lighthouse Family Center for a trauma evaluation. Carrie Schnirring, from

Lighthouse Family Center, conducted T.D.'s trauma evaluation and prepared an

expert report. 2T. at 186; State’s Exhibit 1. T.D. was diagnosed with Posttraumatic

stress disorder, Adjustment disorder with Depressed Mood, r/o Major Depressive

Disorder. 2T. at 209-211; State’s Exhibit 1 at 11.

Durham contacts Deputy Balash

{¶11} On June 22, 2022, Durham called Deputy Balash to schedule an

interview. 4T. at 501-502. The interview, which was recorded audibly, took place in

Deputy Balash's police vehicle parked outside Durham' s home. Id.; State’s Exhibit 14.

Deputy Balash described Durham’s face as twitching or jerking involuntarily during

the interview. Id. at 503. During the interview, Durham admitted applying lotion to

T.D.’s breasts and vaginal area. He further admitted that it was possible that the wash

rag may have gone inside T.D.’s vagina as he scrubbed her while she was showering.

Id. at 511-12. He denied intentional digital penetration, and admitted lying to H.C. to

avoid conflict. The entire one hour-forty-minute interview with Durham was played for

the jury. 4T. at 505-506. Tuscarawas County, Case No. 2023 AP 10 0050 6

Durham testifies at trial

{¶12} Durham admitted that on June 14, 2022, he went into T.D.'s dark

bedroom, took off T.D.'s clothing, pumped the lotion bottle and rubbed lotion on T.D.'s

whole body. 5T. at 580-582; 595-597; 617. He denied that he digitally penetrated T.D.

Id. at 598-599. He further admitted to telling Deputy Balash that he would scrub T.D.

in the shower including her vaginal area. Id. at 605-606. He described for the jury

how he would put the washcloth between T.D.’s legs but not inside her vagina. 5T. at

622. Durham testified that he describes the “vaginal area” as the area below the belly

button and above the genitalia. Id. at 618-619. He insisted that it would not be on or

inside the lips. Id.

The charges

{¶13} On August 8, 2022, Durham was indicted by the Tuscarawas County

Grand Jury for two counts of Rape, one count occurring between January 1, 2022

and June 13, 2022, and the second count occurring June 14, 2022, of a victim less

than 13 years of age, in violation of R.C. 2907.02(A)(1)(b) / (B), both first degree

felonies, two counts of Gross Sexual Imposition of a child less than 13 years of age,

one count occurring between January 1, 2022 and June 13, 2022, and the second

count occurring June 14, 2022, in violation of R.C. 2907.05(A)(4) / (C)(2), both third

degree felonies and, one count of Endangering Children, occurring between January

1, 2022 and June 13, 2022, in violation of R.C. 2919.22(B)(1) / (E)(2)(d) a second-

degree felony. Tuscarawas County, Case No. 2023 AP 10 0050 7

Verdict and sentence

{¶14} At the conclusion of the evidence, the jury found Durham guilty as

charged in the indictment. Sentencing was deferred for a presentence investigation.

{¶15} On September 6, 2023, the trial judge sentenced Durham to concurrent

life terms with the possibility of parole after ten years on Counts 1 and 3; forty-eight-

month terms on Counts 2 and 4 to be served concurrently with each other and

consecutively to Counts 1 and 3; and six years on Count 5 to be served concurrently

with Counts 2 and 4 and consecutively to Counts 1 and 3, for a total aggregate

indeterminate term of 16 years to life imprisonment.

Assignments of Error

{¶16} Durham raises six Assignments of Error,

{¶17} “I. ENRIQUE DURHAM WAS DENIED HIS RIGHTS TO DUE

PROCESS AND A FAIR TRIAL IN VIOLATION OF THE OHIO AND UNITED

STATES CONSTITUTIONS WHEN UNADMITTED, UNREDACTED AND

HIGHLIGHTED EXPERT REPORTS WERE INADVERTENTLY SUBMITTED TO

THE JURY.

{¶18} “II. ENRIQUE DURHAM'S CONVICTION FOR ENDANGERING

CHILDREN, IN VIOLATION OF R.C. 2919.22(B)(1) AND R.C. 2919.22(E)(2)(D), A

FELONY OF THE SECOND DEGREE, IS IN VIOLATION OF HIS RIGHT TO DUE

PROCESS OF LAW GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION. Tuscarawas County, Case No. 2023 AP 10 0050 8

{¶19} “III. THE TRIAL COURT COMMITTED PLAIN ERROR AND EXPOSED

ENRIQUE DURHAM TO MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE

IN VIOLATION OF HIS RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF

THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY FAILING TO MERGE

HIS CONVICTIONS AS ALLIED OFFENSES OF SIMILAR IMPORT.

{¶20} “IV. ENRIQUE DURHAM WAS DENIED HIS CONSTITUTIONAL

RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN THE STATE ENGAGED

IN PROSECUTORIAL MISCONDUCT.

{¶21} “V. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN

SENTENCING ENRIQUE DURHAM.

{¶22} “VI. ENRIQUE DURHAM WAS DENIED HIS CONSTITUTIONAL

RIGHT TO A FAIR TRIAL AS A RESULT OF THE CUMULATIVE ERRORS AT

TRIAL.”

I.

{¶23} In his First Assignment of Error, Durham contends that it was reversible

error to allow inculpatory versions of Carrie Schnirring’s report [State’s Exhibit 1] to be

taken into the jury room and considered by the jury when such exhibits were never

received in evidence.

{¶24} Carrie Schnirring, from Lighthouse Family Center, conducted T.D.'s

trauma evaluation and prepared an expert report. 2T. at 186; State’s Exhibit 1. At

the close of evidence on day four of Durham’s jury trial, after the jury had been excused

for the day, the trial judge and both attorneys discussed redacting State’s Exhibit 1. 4T. Tuscarawas County, Case No. 2023 AP 10 0050 9

at 525. The next morning, the trial judge pointed out to counsel seven areas of State’s

Exhibit 1 that he believed needed to be discussed. 5T. at 533. The judge noted that he

had marked a copy of State’s Exhibit 1, and that he provided a copy to counsel and gave

each one the opportunity to mark that copy for use in discussions. Id. at 533.

{¶25} After extensive discussion on the record, the parties came to an agreement.

Id. at 533-541. At the conclusion of the discussion the prosecutor asked, and the trial

judge agreed that the original, unredacted copy of State’s Exhibit 1 would be kept for the

record. Id. at 541. The trial judge then stated,

And, I have a copy that you gave me that we will attempt at the

redacting on first so we can take a look at that, okay? Okay, we have a plan

in place regarding redacting. Next, when we concluded yesterday, the State

was resting subject-it rested subject to the admission of its exhibits. All of

them have been admitted as presented except State’s Exhibit 1 and [sic.]

will be a redacted copy that would be provided to the jury. The original will

also be kept, excuse me, with the record but not provided to the jury.

5T. at 541-542. Emphasis added. On July 26, 2024, the Court’s Administrative Assistant

filed a “Memo” that states, “A manila envelope containing an un-redacted copy of State’s

Exhibit #1 which was not given to the Jurors in the above-referenced case was placed in

the Confidential File of this administrative office.” [Docket Entry No. 162].

Standard of Review

{¶26} The Due Process Clause of the Fourteenth Amendment to the United States

Constitution requires that a defendant accused of a state criminal violation shall be tried

before a panel of fair and impartial jurors. See Duncan v. Louisiana, 391 U.S. 145, 88 Tuscarawas County, Case No. 2023 AP 10 0050 10

(1968), and State v. King, 10 Ohio App.3d 161(1st Dist. 1983). See, also, Ohio

Constitution, Article I, Section 10. The evidence against the accused must be developed

on the witness stand and in open court. Turner v. Louisiana, 379 U.S. 466, 473 (1965).

The judgment reached in a case should be based only on evidence and argument in open

court, and not by any outside influence. Patterson v. Colorado, 205 U.S. 454, (1907);

Sheppard v. Maxwell, 384 U.S. 333, 351(1966). For this reason, a verdict based upon

evidence that was not admitted during trial would violate Due Process.

First Issue for appellate review: Whether the record supports the assertion that

exhibits not admitted into evidence were taken into the jury room

{¶27} Durham’s sole support for his belief that the jury was given other copies of

Carrie Schnirring’s report that had been used during the trial judge and counsel’s

discussions concerning redacting the exhibit is the following, “Undersigned counsel

received 103 pages of trial exhibits including two copies of a Redacted State's Ex. 1, one

copy of a Highlighted State's Ex. 1 and one copy of an Unredacted State's Ex. 1. Counsel

was advised the Unredacted State's Ex. 1 was not maintained or retrieved from a

separate envelope.” Appellant’s brief at n. 2.

{¶28} One area where this Court does not have discretion to overlook, is when

facts, argument or evidence has been presented in the appellate brief that were not

presented to the trial court during the proceedings in the lower court. In State v. Hooks,

92 Ohio St.3d 83(2001), the Supreme Court noted, “a reviewing court cannot add matter

to the record before it that was not a part of the trial court's proceedings, and then decide

the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d

402(1978).” It is also a longstanding rule “that the record cannot be enlarged by factual Tuscarawas County, Case No. 2023 AP 10 0050 11

assertions in the brief.” Dissolution of Doty v. Doty, 1980 WL 350992 (4th Dist. Feb. 28,

1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59 (10th

Dist. 1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler, 2006-Ohio-6515, ¶ 7, quoting Dzina v.

Celebrezze, 2006-Ohio-1195, ¶ 16.

{¶29} It is speculative to conclude that the jurors were given other versions of

Carrie Schnirring’s report [State’s Exhibit 1]. The only evidence that they were sent into

the jury room is the suggestion that they were because they are contained in the trial

record. Nowhere does the record indicate that the exhibits were taken into the jury room

during trial. State v. Cooper, 52 Ohio St.2d 163, 179 (1977), vacated on other grounds

438 U.S. 911(1978).

{¶30} The trial judge said only the redacted version would go to the jury. 5T. at

541-542. Only one of the documents referenced by Durham contains an original, red

sticker marked, “State’s Exhibit 1”. We have nothing in the record to suggest that the jury

was given anything other than the redacted version of Carrie Schnirring’s report. In an

appeal, all reasonable presumptions consistent with the record will be indulged in in favor

of the regularity of the proceedings below. In re Sublett, 169 Ohio St. 19, (1959); State v.

Grant, 67 Ohio St.3d 465, 483 (1993). Keeping exhibits with the record does not mean

the exhibits were given to the jury; rather, it means the exhibits were kept with the record

for purposes of appellate review.

{¶31} There is nothing in the record to show that the jury examined any of the

other papers. Durham’s assertions do not appear in the trial court record. This Court may

not go beyond the record when reviewing a matter on direct appeal, and consequently, Tuscarawas County, Case No. 2023 AP 10 0050 12

we must find that this matter is more appropriate for review in a petition for post-conviction

relief made pursuant to R.C. 2953.21. See, State v. Stevens, 1995 WL 495835, *2 (5th

Dist. May 26, 1995)2.

{¶32} The record in this case does not support Durham's argument that other

versions of State’s Exhibit 1 were taken into the jury room and considered by them during

trial.

Second Issue for appellate review: Whether, assuming arguendo the

documents were taken to the jury room, did that error result in prejudice to Durham’s

substantial rights

{¶33} However, even if we were to assume arguendo, that the documents were

taken into the jury room, Durham would fair no better.

{¶34} The law requires that items exposed to the jury must have been properly

received in evidence in open court, “It is perfectly plain that the jury room must be kept

free of evidence not received during trial, and that its presence, if prejudicial, will vitiate

the verdict.” Dallago v. United States, 427 F.2d 546, 553 (D.C.Cir. 1969) (footnote and

citations omitted). Accord, United States v. Lee, 573 F.3d 155, 162 (3rd Cir. 2009).

{¶35} It is the responsibility of counsel for both sides in a trial to examine the items

to be presented to the jury for their consideration to ensure that the jury is not exposed to

matters not admitted into evidence. State v. Estrada, 69 Haw. 204, 221(1987);

Government of the Virgin Islands v. Joseph, 685 F.2d 857 (3rd Cir. 1982); United States

v. Finnegan, 204 F.2d 105, 115 (8th Cir. 1953); State v. Ritchie, 556 So.2d 651, 658(La.

2 “A petition for post-conviction relief is a means to reach constitutional issues that would otherwise

be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. State v. Murphy (Dec. 26, 2000), Franklin App. No. 00AP–233.” State v. Perry, 2011-Ohio-274, ¶ 12 (5th Dist.). Tuscarawas County, Case No. 2023 AP 10 0050 13

1990). Failure to do so may mean that a reviewing court can only reverse for plain error.

Id. See also, United States v. Friedland, 660 F.2d 919, 928 (3rd Cir. 1981).

{¶36} In the case at bar, if the other versions of Carrie Schnirring’s report were

taken to the jury room, then, obviously, neither counsel fulfilled their due diligence to

review the items admitted into evidence before allowing them to be taken to the jury room.

{¶37} In a series of cases involving jurors possibly being exposed to documents

or other evidence in the jury room that had not been admitted at trial, the Ohio Supreme

Court has emphasized that the defendant must demonstrate prejudice resulting from the

error.

{¶38} In State v. Cooper, the defendant was convicted of aggravated murder with

the specifications that he purposely caused the death of the victim while committing the

offense of kidnapping and while attempting to commit rape. 52 Ohio St.2d 163, 166

(1977), vacated on other grounds, 438 U.S. 911(1978). On appeal, one of Cooper’s

contentions was that it was reversible error to allow inculpatory exhibits to be taken into

the jury room and considered by the jury when such exhibits were never received in

evidence. Id. at 180. The exhibits were photographs of the scene of the crime, and, the

search warrant, an envelope of cloth fibers, a list of items recovered from appellant’s car,

and a supplementary report made by a sheriff’s deputy after appellant’s arraignment. Id.

The Ohio Supreme Court noted that,

Nowhere does the record indicate that the exhibits were taken into

the jury room during trial. Tuscarawas County, Case No. 2023 AP 10 0050 14

Clearly, the error of the trial court in not formally admitting the above

exhibits in evidence was harmless, since all these exhibits were merely

cumulative in nature.

52 Ohio St.2d at 180. In State v. Froman, Froman was charged with aggravated murder

with death penalty specifications. 2020-Ohio-4523, ¶ 27. One of his contentions on appeal

was that the trial court erred by allowing the jury to view multiple videotapes of his phone

conversations with a [police officer friend] thereby violating his due-process rights and the

best-evidence rule. Id. at ¶95. The Court noted that, “Over Froman’s objection, state’s

exhibit No. 51 was played for the jury, and state’s exhibit No. 50 was admitted into

evidence and sent back with the jury for its deliberations. The trial court explained that

state’s exhibit No. 50, which did not include the closed captioning, was being admitted to

‘leav[e] it to [the jurors’] own interpretation of what was said.’ State’s exhibit Nos. 47

through 49 and 51 were not admitted into evidence, but they were included as part of the

record for appellate purposes.” Id. at ¶ 97. In overruling the assignment of error, the Ohio

Supreme Court emphasized that “Froman failed to show that he was prejudiced.” Id. at ¶

100.

{¶39} In State v. Grant, a jury convicted Grant of two counts of aggravated murder

and one charge of aggravated arson. Each aggravated murder charge contained two

death-penalty specifications, one alleging a course of conduct involving the purposeful

killing of two or more people, and another alleging murder during an aggravated arson.

67 Ohio St.3d 465, 469 (1993). One of Grant’s contentions on appeal was that the fire

chief’s ninety-six color slides, together with a black and white photograph of the corpses, Tuscarawas County, Case No. 2023 AP 10 0050 15

were taken into the jury room although not admitted into evidence. Id. at 483. The Ohio

Supreme Court overruled his assignment of error,

This is a speculative claim, and, in an appeal, all reasonable

presumptions consistent with the record will be indulged in in favor of the

regularity of the proceedings below. In re Sublett (1959), 169 Ohio St. 19, 7

O.O.2d 487, 157 N.E.2d 324; State v. Frost, supra, 14 Ohio App.3d at 321,

14 OBR at 387, 471 N.E.2d at 173. Furthermore, no prejudice resulted. The

photograph was repetitive, and the jury had already seen the slides; other

evidence as to the fire scene was abundant.

67 Ohio St.3d at 483.

{¶40} Thus, in each of the cases, the Ohio Supreme Court emphasized that the

burden was upon the defendant to demonstrate prejudice. Because Dunham failed to

exercise due diligence to examine the evidence before it was taken to the jury room to

ensure that only admissible evidence would be given to the jury, and in light of the

aforementioned Ohio Supreme Court cases, we review the submission of the other

versions of Carrie Schnirring’s report for plain error.

Plain error

{¶41} Crim.R. 52 affords appellate courts limited power to correct errors that

occurred during the trial court proceeding. The Rule distinguishes between errors to which

a defendant objected at trial [Crim.R. 52(a)] and errors that a defendant failed to raise at

trial. [Crim.R. 52(b)]. The main distinction between plain-error review, which is the

standard employed when a defendant failed to object at trial, and harmless-error review,

which is employed when a defendant did object, is the party that bears the burden. See Tuscarawas County, Case No. 2023 AP 10 0050 16

State v. Jones, 2020-Ohio-3051, ¶ 17-18. Under plain-error review, the defendant bears

the burden to demonstrate the requirements for review whereas under harmless-error

review, the state bears the burden to demonstrate that the error did not affect the

defendant’s substantial rights. Id. at ¶ 17-18. See, State v. Bond, 2022-Ohio-4150, ¶7.

While Crim.R. 52(a) precludes error correction only if the error “does not affect substantial

rights,” (emphasis added), Crim.R. 52(b) authorizes no remedy unless the error does

“affec[t] substantial rights.” (Emphasis added.). State v. Perry, 2004-Ohio-118, ¶15

(2004), quoting United States v. Olano, 507 U.S. 725, 734-735 (1993).

{¶42} “To establish plain error under Crim.R. 52(b), [Durham] must show that an

error occurred, that the error was obvious, and that there is ‘a reasonable probability that

the error resulted in prejudice,’ meaning that the error affected the outcome of the trial.”

(Emphasis omitted.) State v. McAlpin, 2022-Ohio-1567, ¶ 66, quoting State v. Rogers,

2015-Ohio-2459, ¶ 22. Accord State v. Bailey, 2022-Ohio-4407, ¶ 8. These elements are

“conjunctive,” meaning “all three must apply to justify an appellate court’s intervention.”

Bailey at ¶ 9, citing State v. Barnes, 94 Ohio St.3d 21, 27(2002). Intervention by an

appellate court for plain error “is warranted only under exceptional circumstances to

prevent injustice.” Id. at ¶ 8, citing State v. Long, 53 Ohio St.2d 91(1978), paragraph three

of the syllabus.

{¶43} In order to show that an error affected substantial rights, the defendant must

demonstrate “a reasonable probability that the error resulted in prejudice - the same

deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis

deleted.) State v. Rogers, 2015-Ohio-2459, ¶ 22, citing United States v. Dominguez

Benitez, 542 U.S. 74, 81-83, (2004) (construing Fed.R.Crim.P. 52(b), the federal analog Tuscarawas County, Case No. 2023 AP 10 0050 17

to Crim.R. 52(B)). Bond at ¶ 22. The Court in Rogers reaffirmed that even if an accused

shows the trial court committed plain error affecting the outcome of the proceeding, the

appellate court is not required to correct it. Id. at ¶ 23. The Supreme Court stated:

[W]e have “admonish[ed] courts to notice plain error ‘with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’” Barnes at 27, 94 Ohio St.3d 21, 759 N.E.2d 1240,

quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph

three of the syllabus.

Rogers, ¶ 23; State v. Perry, 101 Ohio St.3d 118, 120 (2004).

How this issue arose in the trial court

{¶44} Prior to trial, Durham filed a motion in limine asking the court to limit any

prior bad acts testimony regarding domestic violence. [Docket Entry No. 140]. In the

motion Durham referenced the child victim's trauma evaluation report prepared by Carrie

Schnirring at Lighthouse Family Center and reports made to Ms. Schnirring regarding

domestic violence in the family. [State’s Exhibit 1]. The state filed a response. [Docket

Entry No. 142]. In the response, the state contended that the evidence was relevant to

explain how the will of a victim of a rape can be overborne, and how a partner could be

manipulated into supporting the abuser. Prior to the start of trial, the trial judge granted

the motion finding that because force was not alleged during the sexual assaults, the

evidence was barred by Evid.R. 404. 2T. at 169-171. Based on the trial judge’s ruling,

Carrie Schnirring was instructed not to testify about any domestic violence in T.D.'s life

and home. 2T. at 182-183. Tuscarawas County, Case No. 2023 AP 10 0050 18

{¶45} Prior to T.D.’s testimony, the state objected to Durham’s having cross-

examined Schnirring about an alleged false police report made by T.D. 2T. at 249-250.

The state contended that to explain the situation, it would be necessary to bring up the

threats Durham made to T.D., which the state could not do because of the trial judge’s

ruling on the motion in limine. Id. at 250-251. The trial judge indicated he would review

the ruling if the matter was brought up by the defense. Id. at 252.

{¶46} During his cross-examination of T.D., Durham conceded that he opened the

door to the domestic violence incidents because he was seeking to elicit testimony from

T.D. that she filed a false police report concerning her allegations that her parents abused

her. 2T. at 307. He further withdrew the motion in limine because he was “opening the

door” to the domestic violence testimony. Id. at 309-319; 335; 425. The trial judge

indicated he would permit the state to recall Schnirring. Id.; 2T. at 317. The state

requested the trial judge instruct the jury that they were not permitted to talk about the

domestic violence with Schnirring because of the motion in limine. 2T. at 317. The trial

judge permitted the state to inform T.D. that they no longer had to abide by the prior ruling

and she could testify concerning domestic violence in the home. Id. at 318. However, the

trial judge indicated that he would not permit testimony about every bad act Durham had

ever done. Id. at 336. Ultimately, the state elected not to recall Schnirring. 3T. at 424-425.

The record on appeal

{¶47} Contained within the record transmitted to this Court are the following

documents,

1. A copy of the report of Carrie Schnirring that contains no red

“State’s Exhibit 1” sticker [the “Original version”]; Tuscarawas County, Case No. 2023 AP 10 0050 19

2. A copy of the report of Carrie Schnirring that contains a photocopy

in black of a “State’s Exhibit” sticker with a blank exhibit number. This

version has areas highlighted- some of which were not redacted, in addition

to the areas which were ultimately redacted [the “Highlighted version”];

3. A copy of the report of Carrie Schnirring that contains no red or

photocopied “State’s Exhibit” or “State’s Exhibit 1” sticker, that has the

seven areas of redaction obliterated by white correction fluid, frequently

referred to by its trade name as “Wit-Out,” [the “Wit-Out” version];

4. A redacted copy of the report of Carrie Schnirring that contains a

red “State’s Exhibit 1” sticker [the “Redacted version”].

The trial testimony concerning domestic violence

{¶48} At trial, Schnirring testified concerning how threats of violence affect a child

and the child’s ability to control their environment. 2T. at 189-190. She testified to the

effects of returning a child back after the child has “told on” a caregiver. Id. at 190. She

further testified that family violence plays into the control of a child. Id.

{¶49} Before being relieved of the restrictions imposed by the trial judge’s ruling

on Durham’s motion in limine, T.D. testified that Durham beat her and called her names.

2T. at 278; 291. On cross-examination, T.D. was asked about reporting incidents of

violence in the home when she was interviewed at Akron Children’s Hospital. Id. at 316;

320 -321. She testified that she had called the police because her mom and Durham were

abusing her. Id. at 325. T.D. testified,

Enrique, he was on the camera in the phone and I was doing the

dishes, taking care of [K.D.] and taking care of a dog and he starts Tuscarawas County, Case No. 2023 AP 10 0050 20

threatening to beat on me when he gets home if the things are not right,

how he wanted it. Threating to put his hands on me and then he started

cussing me out and then I just started having a breakdown and I called

grandma to come pick me up.

2T. at 328. T.D. explained that “beat” meant, “Physically hit me with his hands, belt, shoes,

anything he can throw at me what he would usually do.” Id. She testified that she would

get “beat” for not following the rules. Id. at 329. Durham would hit her in her face or

anywhere on her body. Id. T.D. further told the jury,

And my mom, she started hitting on me too but he took me by my

hair, started beating on me in the living room, threw me over the chair and

I peed myself because I was begging for him to stop, then he stopped and

then he drag-he drug-my bad-dragged me by my hair, threw me into the

bathroom and started throwing my shoes at me, took the cleaner for the

bathroom, threw that at me and a toothbrush, also while beating on me,

telling me that I had to clean the toilet, sink and bath tub with that and if it's

not right, that he would start hitting on me again and then my mom was also

upset so she hit on me a little bit but he was mostly the one causing the

bruises on me. Also, while cussing me out.

2T. at 330. T.D. testified further,

So, the physical abuse where I started getting hit is when I was

younger but he started beating and hitting on my mom and it would get to

the point where I don't know if my mom would make it out. So, as I started

getting older, I started throwing myself into it when every time I would see Tuscarawas County, Case No. 2023 AP 10 0050 21

him beat mom even though I would be getting beat too. So, when I started

getting around nine, ten, he would start beating me even worse and I started

fighting back. One day, when I got out of school, these girls that I didn't like

were walking behind me and he thought we were friends. So, he started

yelling at me, told me to get in the car. We got home--

2T. at 334. T.D. continued,

The day where they were walking behind me, he took me into the

car-He told me to get in the F-in (sic) car and I did and he started yelling at

me. We got home, I went to the kitchen, he started cussing me out and he

went to go get his belt, he hit me with the belt, and I caught it and I started

fighting back and then he used his hands, he made my mouth bleed and I

had some bruises on me. So, I was hitting back to the point where his mouth

was bleeding also and then I went to my room. I was crying and we were

still fighting back and forth. My mom walked in and he was saying that I was

– I was abused when I was younger and I didn’t mean to take it out on you

and I’m sorry.

2T. at 337-338.

{¶50} H.C. testified on cross-examination that it was true that she and Durham

beat on T.D. 3T. at 410. They would spank her with their hands, a belt, scream and cuss

at her. Id. at 411. The belt left marks on T.D.’s leg. Id at 412.

{¶51} Durham testified that he administered spankings to T.D. 5T. at 573.

Sometimes he would spank T.D. with a belt. Id. at 573; 594; 603.

Durham’s contentions Tuscarawas County, Case No. 2023 AP 10 0050 22

{¶52} We first note that the reference to page 7 of the Highlighted version

concerning how other family members felt about Durham, Durham did not ask the trial

judge to, and the trial judge did not, redact this paragraph. See, Appellant’s brief at 8, #1.

5T. at 533-544; Redacted version at 7. The same is true with respect to Durham’s

contention concerning the Unredacted version and Highlighted version at page 2. See,

Appellant’s brief at 9, #2.

{¶53} T.D. testified at trial to Durham pulling her hair and throwing shoes at her.

2T. at 330. See, Appellant’s brief at 9, #4. T.D. testified concerning the bathroom incident.

See, Appellant’s brief at 9, #3; 2T. at 330. T.D. testified that Durham would call her names.

2T. at 291; See, Appellant’s brief at 9, #5. T.D. testified that Durham abused her mother,

H.C. 2T. at 334; See, Appellant’s brief at 9, #6; #8; #9, #11. H.C. admitted at trial to hitting

T.D. with her hand and a belt. 3T. at 411; See, Appellant’s brief at 9, #10. Both T.D. and

H.C. testified to marks left on T.D. after being disciplined. 2T. at 330; 334; 412; See,

Appellant’s brief at 9, #11; #12. T.D. testified that she would attempt to intervene when

H.C. and Durham would fight. 2T. at 334; See, Appellant’s brief at 9, #14. The only other

evidence contained in the Unredacted version and the Highlighted version that is not

contained in the Redacted version concerns T.D. sister, K.D. See, Appellant’s brief at

#13; #15.

{¶54} Accordingly, as the majority of the redactions from Carrie Schnirring’s report

were testified to during trial, any versions erroneously submitted to the jury are cumulative

and repetitive of the testimony. Any differences were minimal.

{¶55} Durham has not demonstrated that there is a reasonable probability that the

error resulted in prejudice, meaning that the error affected the outcome of the trial. Tuscarawas County, Case No. 2023 AP 10 0050 23

Durham did not dispute the majority of allegations made by T.D. Durham admitted that

on June 14, 2022, he got out of bed after his partner fell asleep. He then proceeded to go

to the bedroom of his twelve-year-old step-daughter and removed all of her clothes.

Durham then pumped lotion onto his hands and proceeded to rub the lotion, from top to

bottom, including her breasts and vaginal area, on the naked body of his twelve-year-old

step-daughter. When he hears his partner approaching, he flees the room. Durham

admitted that he lied to his partner concerning his reason for being in T.D.’s bedroom. He

further admitted to washing his twelve-year-old daughter in the shower, including

scrubbing her between the legs with a washcloth. 5T. at 622.

{¶56} In addition, because T.D., H.C. and Durham each testified, the jury was able

to judge for themselves their appearance on the stand, manner of testifying, the

reasonableness of their testimony, the accuracy of memory, frankness or lack of it, and

any bias they may have.

{¶57} We find that there was abundant evidence to submit the charges to the jury

and to support Durham’s convictions. Further, any error in the submission of the other

versions of Carrie Schnirring’s report did not affect the substantial rights of Durham. The

remaining evidence adduced by the state established his guilt beyond any reasonable

doubt.

Conclusion – Durham’s First Assignment of Error

{¶58} We hold that it is speculative to conclude that the jurors were given other

versions of Carrie Schnirring’s report. The only evidence that they were sent into the jury

room is the suggestion that they were because they are contained in the trial record. Tuscarawas County, Case No. 2023 AP 10 0050 24

Nowhere does the record indicate that the exhibits were taken into the jury room during

trial. There is nothing in the record to show that the jury examined any of the other papers.

{¶59} Assuming arguendo that exhibits were taken into the jury room and

considered by the jury when those exhibits had not been admitted into evidence, we hold

that Durham has not demonstrated that there is a reasonable probability that the error

resulted in prejudice, meaning that the error affected the outcome of the trial. We decline

to find a manifest injustice warranting the extraordinary step of finding plain error in the

submission of the Original version, the Highlighted version, the Wit-Out version and the

Redacted version of Carrie Schnirring’s report to the jury.

{¶60} Durham’s First Assignment of Error is overruled.

II.

{¶61} In his Second Assignment of Error, Durham asserts that the evidence was

not sufficient to support his conviction for Child Endangering. Specifically, Durham argues

the evidence fails to prove beyond a reasonable doubt the T.D. suffered “serious physical

harm” so as to elevate the crime to a felony of the second degree.

Standard of Appellate Review

{¶62} The Sixth Amendment provides, “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. 99 (2013); Hurst v. Florida, 577 U.S. 92 (2016). The test for the sufficiency of the

evidence involves a question of law for resolution by the appellate court. State v. Walker,

2016-Ohio-8295, ¶30; State v. Jordan, 2023-Ohio-3800, ¶13. “This naturally entails a Tuscarawas County, Case No. 2023 AP 10 0050 25

review of the elements of the charged offense and a review of the state's evidence.” State

v. Richardson, 2016-Ohio-8448, ¶13.

{¶63} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus, superseded by State constitutional amendment on other

grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, (1997); Walker, 150

Ohio St.3d at ¶30. “The relevant inquiry is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph two of

the syllabus. State v. Poutney, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for

evidentiary sufficiency we do not second-guess the jury's credibility determinations;

rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of

the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516,

543 (2001), quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at

¶31. We will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable

minds could not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer,

2006-Ohio-5283, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997); State v.

Montgomery, 2016-Ohio-5487, ¶74.

Issue for Appellate Review: Whether, after viewing the evidence in the light

most favorable to the prosecution, the evidence, if believed, would convince the

average mind that Durham was guilty beyond a reasonable doubt of causing T.D.

serious physical harm Tuscarawas County, Case No. 2023 AP 10 0050 26

{¶64} Durham was convicted of Endangering Children in violation of R.C.

2919.22; however, he concedes that the evidence was sufficient to convict him of the

offense pursuant to R.C. 2919.22(B)(1). Durham’s focus is solely upon the sentence

enhancing element,

(E)(1) Whoever violates this section is guilty of endangering

children.

(2) If the offender violates division (A) or (B)(1) of this section,

endangering children is one of the following, and, in the circumstances

described in division (E)(2)(e) of this section, that division applies:

…

(d) If the violation is a violation of division (B)(1) of this section

and results in serious physical harm to the child involved, a felony of the

second degree.

{¶65} Durham argues that the state failed to prove that T.D. “suffered from any

mental illness or condition of such gravity as would normally require hospitalization

or prolonged psychiatric treatment.” Accordingly, he argues, the “serious physical

harm" enhancement must be vacated and the offense of Child Endangering reduced

to a first-degree misdemeanor.” Appellant’s brief at 20.

{¶66} In the case at bar, T.D. was diagnosed with Posttraumatic stress

disorder, Adjustment disorder with Depressed Mood, r/o Major Depressive Disorder.

2T. at 209-211; State’s Exhibit 1 at 11. T.D.’s depression stemmed from the specific

stressors of sexual abuse, her mother’s reaction, Children’s Service’s becoming

involved and her mother losing custody of T.D. 2T. at 210. Ms. Schnirring testified Tuscarawas County, Case No. 2023 AP 10 0050 27

that the longer the sexual abuse goes on, the more severe the posttraumatic stress.

Id. at 212. Schnirring testified that T.D.’s age, and her mother’s mismanagement of

the situation are factors “to how much she’s going to have to work in therapy to

address these symptoms that she struggled with.” Id. at 212. Recovery is further

complicated when the perpetrator of the sexual abuse is a person of trust and

authority. Id. at 212-213. Schnirring testified that she recommended trauma therapy

and that T.D.’s depression symptoms be monitored “pretty closely because she might

need to see someone for a consultation regarding medication if the trauma therapy

doesn’t relieve some of the more severe symptoms of depression.” 2T. at 214.

Schnirring further testified that the fact that her mother did not believe her and that

Children Services had to remove T.D. from her mother’s home “suggests that her

road to recovery is going to be difficult.” Id. at 214. Schnirring recommended that T.D.

begin counseling in November-December, 2022. 2T. at 218. T.D.’s counseling was

delayed because of scheduling problems brought about because of the pandemic.

2T. at 224-225.

{¶67} The jury was able to view T.D.’s forensic interview at Akron Children’s

Hospital and review Schnirring’s report. State’s Exhibit 3; State’s Exhibit 1.

{¶68} R.C. 2901.01 statutorily defines “serious physical harm” in relevant part,

(5) “Serious physical harm to persons” means any of the

following:

(a) Any mental illness or condition of such gravity as would

normally require hospitalization or prolonged psychiatric treatment. Tuscarawas County, Case No. 2023 AP 10 0050 28

{¶69} This Court has previously noted the degree of harm which rises to level

of “serious” physical harm is not an exact science, given the definition uses terms

such as “substantial,” “temporary,” “acute” and “prolonged.” State v. Holsinger, 2017-

Ohio-1378, ¶35 (5th Dist.). The extent or degree of a victim’s injuries is “normally a

matter of the weight rather than the sufficiency of the evidence.” Id.

{¶70} State v. Elliott, involved a man who was convicted of felonious assault

after he killed his wife and then allowed his six-year-old son to discover her lying dead

in a pool of her own blood. 104 Ohio App.3d 812 (11 th Dist. 1995). The son suffered

post-traumatic stress disorder (“PTSD”) as a result. Id. at 415–16. In Elliott, there was

conflicting evidence as to whether the child’s mental condition required “prolonged

psychiatric treatment.” 104 Ohio App.3d at 819. However, the court found that the

conflicting testimony “does not preclude reasonable minds from finding beyond a

reasonable doubt that as a result of discovering his mother’s body, [the child] suffered

from a mental illness requiring prolonged psychiatric treatment.” Id.

{¶71} State v. Cooper, involved a mother who was involved in sexually

abusing and/or allowing others to sexually abuse her four children. 139 Ohio App.3d

149 (12th Dist. 2000). The children each displayed “a variety of symptoms of mental

illness.” Id. Even though the expert could not separate the children’s sexual abuse

from their physical and emotional maltreatment as the cause of their mental illnesses,

the Court found that the trial court was not required to acquit, because from the

expert’s testimony a jury could reasonably find that “appellant caused ‘serious

physical harm’ in the form of mental illness that is prohibited by the felonious assault

statute.” Id. at 161. Tuscarawas County, Case No. 2023 AP 10 0050 29

{¶72} In the case at bar, a twelve-year-old child suffered repeated instances

of sexual abuse at the hands of her step-father. Based upon the evidence presented

during trial, it is not unreasonable to conclude that the resulting psychological trauma

would be serious and require treatment well into the future.

{¶73} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Durham did cause serious physical harm to T.D. We hold, therefore, that the state

met its burden of production regarding each element of the crime of Endangering

Children as a felony of the second degree for which Durham was indicted and,

accordingly, there was sufficient evidence to submit the charge to the jury and to

support Durham's conviction.

{¶74} Durham’s Second Assignment of Error is overruled.

III.

{¶75} In his Third Assignment of Error, Durham contends the trial judge erred by

failing to merge the rape, gross sexual imposition and endangering children convictions

because the charges are allied offenses of similar import.

{¶76} We review de novo whether certain offenses should be merged as allied

offenses under R.C. 2941.25. State v. Williams, 2012-Ohio-5699, ¶ 1; State v. Bailey,

2022-Ohio-4407, ¶6. However, because Durham failed to preserve the issue of merger

at trial, we review the issue for plain error. See State v. Rogers, 2015-Ohio-2459, ¶ 28

(“the failure to raise the allied offense issue at the time of sentencing forfeits all but plain

error”); Bailey, 2022-Ohio-4407 at ¶ 7. Tuscarawas County, Case No. 2023 AP 10 0050 30

{¶77} “To establish plain error, [Durham] must show that an error occurred, that

the error was obvious, and that there is ‘a reasonable probability that the error resulted in

prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis omitted.)

State v. McAlpin, 2022-Ohio-1567, ¶ 66, quoting State v. Rogers, 2015-Ohio-2459, ¶ 22.

Accord State v. Bailey, 2022-Ohio-4407, ¶ 8. These elements are “conjunctive,” meaning

“all three must apply to justify an appellate court’s intervention.” Bailey at ¶ 9, citing State

v. Barnes, 94 Ohio St.3d 21, 27(2002). Intervention by an appellate court for plain error

“is warranted only under exceptional circumstances to prevent injustice.” Id. at ¶ 8, citing

State v. Long, 53 Ohio St.2d 91(1978), paragraph three of the syllabus.

{¶78} The main distinction between plain-error review, which is the standard

employed when a defendant failed to object at trial, and harmless-error review, which is

employed when a defendant did object, is the party that bears the burden. See State v.

Jones, 2020-Ohio-3051, ¶ 17-18. Under plain-error review, the defendant bears the

burden to demonstrate the requirements for review whereas under harmless-error review,

the state bears the burden to demonstrate that the error did not affect the defendant’s

substantial rights. Id. at ¶ 17-18. See, State v. Bond, 2022-Ohio-4150, ¶7.

{¶79} In order to show that an error affected substantial rights, the defendant must

demonstrate “a reasonable probability that the error resulted in prejudice—the same

deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis

deleted.) State v. Rogers, 2015-Ohio-2459, ¶ 22, citing United States v. Dominguez

Benitez, 542 U.S. 74, 81-83, (2004) (construing Fed.R.Crim.P. 52(b), the federal analog

to Crim.R. 52(B)). Bond at ¶ 22. Tuscarawas County, Case No. 2023 AP 10 0050 31

Allied-offenses of similar import – R.C. 2941.25

{¶80} In Ohio, the legislative statement on multiple punishments is found in R.C.

2941.25, which provides:

(A) Where the same conduct by [a] defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶81} This test requires a court to ask three questions: “(1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? An affirmative answer to any of

[these questions] will permit separate convictions. The conduct, the animus, and the

import must all be considered.” State v. Ruff, 2015-Ohio-995, ¶ 31. An allied-offenses

analysis must be driven by the facts of each case. “[T]he analysis must focus on the

defendant’s conduct to determine whether one or more convictions may result, because

an offense may be committed in a variety of ways and the offenses committed may have

different import.” Id.

{¶82} There are two circumstances in which offenses will be deemed dissimilar in

import, making sentences for multiple counts permissible. The first circumstance is Tuscarawas County, Case No. 2023 AP 10 0050 32

“[w]hen a defendant’s conduct victimizes more than one person [because] the harm for

each person is separate and distinct.” Id. at ¶ 26. The second circumstance is when a

defendant’s conduct against a single victim constitutes two or more offenses and “the

harm that results from each offense is separate and identifiable from the harm of the other

offense.” Id. Therefore, the Ohio Supreme Court has held that “two or more offenses of

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.” Ruff at ¶ 26. Whether the offenses have similar

import will be revealed by “[t]he evidences at trial or during a plea or sentencing hearing.”

Id.

{¶83} In State v. Whitfield, the Ohio Supreme Court cautioned trial courts as

follows,

Because R.C. 2941.25(A) protects a defendant only from being

punished for allied offenses, the determination of the defendant’s guilt for

committing allied offenses remains intact, both before and after the merger

of allied offenses for sentencing. Thus, the trial court should not vacate or

dismiss the guilt determination.

2010-Ohio-2, ¶26. Emphasis added.

Issue for Appellate Review: Whether R.C. 2941.25 allows multiple sentences

for rape, gross sexual imposition and endangering children in Durham’s case

{¶84} Under R.C. 2907.02, the elements of rape as indicted in this case were:

(A)(1) No person shall engage in sexual conduct with another who

is not the spouse of the offender or who is the spouse of the offender but is Tuscarawas County, Case No. 2023 AP 10 0050 33

living separate and apart from the offender, when any of the following

applies:

(b) The other person is less than thirteen years of age, whether or

not the offender knows the age of the other person.

{¶85} Under R.C. 2907.05, the elements of gross sexual imposition as indicted in

this case were:

(A) No person shall have sexual contact with another, not the spouse

of the offender; cause another, not the spouse of the offender, 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.

{¶86} Under R.C. 2919.22, the elements of endangering children as indicted in

(B) No person shall do any of the following to a child under eighteen

years of age or a child with a mental or physical disability under twenty-one

years of age:

(1) Abuse the child

{¶87} Sexual conduct is defined as “vaginal intercourse between a male and

female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;

and, without privilege to do so, the insertion, however slight, of any part of the body or Tuscarawas County, Case No. 2023 AP 10 0050 34

any instrument, apparatus, or other object into the vaginal or anal cavity of another.

Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C.

2907.01(A).

{¶88} Sexual contact is defined as “any touching of an erogenous zone of another,

including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a

female, a breast, for the purpose of sexually arousing or gratifying either person.” R.C.

2907.01(B).

{¶89} An “abused child” can be found where the child is the victim of “sexual

activity” as defined under Chapter 2907. of the Revised Code, where such activity would

constitute an offense under that chapter. See, R.C. 2151.031.

Rape and gross sexual imposition are not allied offenses under the facts

established during trial

{¶90} Rape and gross sexual imposition may, depending on the circumstances,

be allied offenses of similar import. See, State v. Abi–Sarkis, 41 Ohio App.3d 333 (one

uninterrupted assaultive episode without a separate animus as to each act, R.C.

2941.25(A) permits only one conviction). See also, State v. Teagarden, 2008-Ohio-6986,

¶175 (5th Dist.).

{¶91} However, “simply because gross sexual imposition and rape may be allied

offenses in one case does not mean that they are allied in every other case.” State v.

Knight, 2008-Ohio-579, at ¶ 47 (8th Dist.), citing State v. Wozniak (May 23, 1996), 10th

Dist. No. 95APA03–345. There may be instances when a defendant may be convicted

and sentenced for both charges. Tuscarawas County, Case No. 2023 AP 10 0050 35

{¶92} In Knight, the testimony showed that the defendant had groped the victim’s

breast during the episode where he raped her. The Knight court determined that such

conduct is separate from the conduct that constituted the rape offense. In Knight, the

victim was penetrated both vaginally and anally, and the court determined that such

conduct is “separate and distinct from the conduct that constituted the gross sexual

imposition offense.” Id. at ¶ 48. Therefore, the court concluded that Knight committed

gross sexual imposition when he groped the victim’s breast and that this was done with

a separate animus from the sexual contact that led to the conviction for rape. Id. citing

State v. Reid, 2004–Ohio–2018 (8th Dist.); Teagarden, 2008-Ohio-6986, ¶177. See also,

State v. Foust, 2004-Ohio-7006, ¶144 (act of touching victims vagina with a knife was

conduct separate and distinct from rape; therefore, defendant could be convicted of rape

and gross sexual imposition).

{¶93} In the case at bar, concerning Count 4 of the indictment alleging gross

sexual imposition on June 14, 2022, Durham admitted that he applied lotion to T.D.’s

breasts as well as her vagina. 4T. at 505-506.

{¶94} Concerning Count 2 of the indictment alleging gross sexual imposition

between January 1, 2022 and June 13, 2022, T.D. testified that during 2022 when the

school year was ending, Durham touched her while she was naked in the shower

squeezing her breasts, rubbing her vaginal area and putting his fingers inside her

vaginal area. 2T. at 293. Durham admitted to telling Deputy Balash that he would

scrub T.D. in the shower including her vaginal area. Id. at 605-606. Tuscarawas County, Case No. 2023 AP 10 0050 36

{¶95} Similarly, to Knight and Teagarden, we find under the facts established at

trial, Durham’s conduct of groping T.D.’s breasts was committed with separate animus

than the counts of rape. State v. Teagarden, 2008-Ohio-6986, ¶178.

{¶96} Accordingly, we find that Durham has not demonstrated that any obvious

error occurred in the failure to merge the rape and the gross sexual imposition counts for

sentencing, or that there is a reasonable probability that the error resulted in prejudice,

meaning that the error affected the outcome of the trial. We decline to find a manifest

injustice warranting the extraordinary step of finding plain error in the failure to merge the

rape and gross sexual imposition counts for sentencing.

Endangering children is an allied offense of rape and gross sexual imposition

under the facts of this case

{¶97} The state’s sole argument for imposing a separate sentence for Durham’s

conviction for endangering children is State v. Fisher, 2023-Ohio-2693(8th Dist.).

[Appellee’s brief at 18]. We find the state’s reliance on Fisher to be misplaced.

{¶98} In finding the offenses of rape, gross sexual imposition and endangering

children do not merge for sentencing, the court in Fisher found, “Child endangering,

pursuant to R.C. 2919.22, involves the duty of care and protection a parent or a person

acting in loco parentis has with respect to a child.” Id. at ¶8. However, that is true only

with respect to R.C. 2919.22(A), not R.C. 2919.22(B). In order to convict a defendant of

child endangering under R.C. 2919.22(A), the state must prove that: (1) an individual who

is the parent, guardian, custodian, person having custody or control, or person in loco

parentis of; (2) a child under 18 years of age; (3) recklessly created a substantial risk to

the health or safety of the child; and (4) by violating a duty of care, protection, or support. Tuscarawas County, Case No. 2023 AP 10 0050 37

To convict a defendant of child endangering under R.C. 2919.22(B)(1), the state must

prove that: (1) the child is under 18 years of age; (2) an affirmative act of abuse occurred;

and (3) the defendant recklessly committed the act of abuse. State v. Garcia, 2004–Ohio–

1409, ¶ 36 (10th Dist.); State v. Carse, 2010-Ohio-4513, ¶ 54 (10th Dist.). Only a certain,

defined group of people who violate a duty of care, protection or support can violate R.C.

2919.22(A); however, one can recklessly abuse a child in violation of R.C. 2919.22(B)(1)

without violating a duty of care as required by R.C. 2919.22(A). Garcia, ¶ 36.

{¶99} In the case at bar, the state did not charge Durham with a violation of R.C.

2919.22(A); rather Durham was indicted and convicted of Endangering Children under

R.C. 2919.22(B)(1). At trial, the charge of Endangering Children was predicated upon

Durham's "sexual abuse" of T.D. See, e.g. 5T. at 635-636. No separate animus or

separate harm stemming from the endangering children charge was alleged or proven.

{¶100} Accordingly, Durham’s convictions for endangering children in count five of

the indictment should be merged for purposes of sentencing. As such, this matter must

be remanded to the trial court for resentencing. Teagarden, 2008-Ohio-6985, ¶ 178.

{¶101} Durham’s Third Assignment of Error is overruled in part, and affirmed in

part.

IV.

{¶102} In his Fourth Assignment of Error, Durham contends the prosecutor

committed error during closing argument by improperly bolstering a state's witness and

misstating the evidence thereby depriving him of a fair trial.

{¶103} Durham did not object to the comments he now assigns as error. Therefore,

he has forfeited all but plain error. Tuscarawas County, Case No. 2023 AP 10 0050 38

Standard of Appellate Review – Plain Error

{¶104} Recently, the Ohio Supreme Court reviewed claims of plain error and

stated,

To prevail under the plain-error standard, the defendant must show

that an error occurred, that it was obvious, and that it affected his substantial

rights. Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (2002) (an error affects substantial rights only when it affects the

outcome of the trial). “Notice of plain error under Crim.R. 52(B) is to be taken

with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91,

372 N.E.2d 804 (1978), paragraph three of the syllabus.

State v. Nicholson, 2024-Ohio-604, ¶114. See also, State v. Knuff, 2024-Ohio-902, ¶117.

{¶105} In Knuff, the Supreme Court addressed the appropriate standard of review

for addressing claims of prosecutorial misconduct during closing argument,

We assess prosecutorial misconduct in closing arguments by asking

“‘whether the remarks were improper and, if so, whether they prejudicially

affected [the] substantial rights of the defendant.’” State v. Hessler, 90 Ohio

St.3d 108, 125, 734 N.E.2d 1237 (2000), quoting State v. Smith, 14 Ohio

St.3d 13, 14, 470 N.E.2d 883 (1984). A conviction may be upheld in the face

of a prosecutor’s improper remarks when it is “clear beyond a reasonable

doubt that the jury would have returned a verdict of guilty” regardless of the

comments. United States v. Hasting, 461 U.S. 499, 511-512, 103 S.Ct.

1974, 76 L.Ed.2d 96 (1983) (new trial unwarranted despite prosecutor’s Tuscarawas County, Case No. 2023 AP 10 0050 39

improper argument because of “overwhelming evidence of guilt and the

inconsistency of the scanty evidence tendered by the defendants”).

State v. Knuff, 2024-Ohio-902, ¶238.

Issue for Appellate Review: Whether but for the prosecutor’s remarks during

closing argument the jury would have acquitted Durham.

{¶106} Durham points to only the two following remarks made by the prosecutor

during closing argument,

T.D. tells you that, you know, he, when she doesn't do exactly what

he wants her to do, she gets hit with a belt. Guess what? Her mom and dad

admitted, she gets hit with a belt, gets hit with a belt often. That's the truth....

She's been consistent throughout this entire case. They wanted to make

her out to be a liar but she didn't lie. She did what Carrie Schnirring said,

she let her story gradually come out and why is that? Because you want to

know, you're twelve years old, am I going to go home to a safe place or is

no one going to believe me and I'm going to go home to an unsafe place

and who can blame her really, that it already happened to her. She told the

truth and her life was unsafe. She told the truth and initially her mother

believed her but then her mother put her time and time again in the presence

of Enrique.

5T. at 637. And again, during her rebuttal closing argument,

You shouldn't find a guilty man innocent because he lies. It's not the

weight of the lies. It’s not the - It's the nature of the lies. It's the

reasonableness of what you heard. [H.C.], according to [defense counsel], Tuscarawas County, Case No. 2023 AP 10 0050 40

lied because she wasn't honest about being physically abusive to her

daughter. Because who wants to be labeled as a physically abusive

mother? Nobody. And she told you, she not proud of that. Frankly, she

doesn't even know if she's going; to get her daughters. I mean, she has no

idea whether she's going to get her daughters back. She didn't come in here

[sic] lie. She spent a lot of time lying for Enrique which is the reason why

she ended up in this position, which is the reason why she doesn't have her

daughters. [T.D.] didn't lie…. She got caught in a predicament and she told

the truth and then she gradually disclosed about, frankly, what sounds like

a pretty horrible household of secrets and violence and sexual abuse. Who

has the most reason to lie? Who has said over and over again, my entire

life is crumbling, I'm losing everything, I've worked so hard, you know, and

now, I'll do anything to fix this. I need to fix this. Well, first I'll lie about it and

say it didn't happen. Next, I'll call - Next, I'll say we have a broken family so

now my child is lying, which doesn't make any sense. Then I'll look at these

jurors square in the eye and say I only rub lotion on her pubic area, which

again is a crime, but he's minimizing to maximize his chance of you

believing him. I hope that you're smarter than that and I am asking you to

find Enrique guilty for his actions, guilty for the trauma he put this child

through and I hope we'll come into the courtroom and hear that verdict.

Thank you.

5T. at 644-645. Tuscarawas County, Case No. 2023 AP 10 0050 41

{¶107} Courts afford prosecutors wide latitude in closing arguments, and

prosecutors may draw reasonable inferences from the evidence at trial, commenting on

those inferences during closing arguments. State v. Hunt, 10th Dist. No. 12AP-1037,

2013-Ohio-5326, 2013 WL 6406316, ¶ 18. As a general rule “[i]t is improper for an

attorney to express his or her own personal belief or opinion as to the credibility of a

witness.” State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997). A prosecutor

improperly vouches for the credibility of a witness “‘when the prosecutor implies

knowledge of facts outside the record or places his or her personal credibility in issue.’”

State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 200, quoting

State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 232.

{¶108} Even if we were to assume arguendo that the prosecutor’s statements were

improper, Durham is unable to demonstrate the type of prejudice necessary to require

reversal based on plain error from prosecutorial misconduct. See State v. Guade, 10th

2012-Ohio-1423, ¶ 20. “An improper comment does not affect a substantial right of the

accused if it is clear beyond a reasonable doubt that the jury would have found the

defendant guilty even without the improper comments.” State v. McAlpin, 2022-Ohio-

1567, ¶168, citing State v. Treesh, 90 Ohio St.3d 460, 464 (2001).

{¶109} Durham was not deprived of a fair trial due to prosecutorial misconduct. The

evidence against Durham was compelling, and there is little chance that, absent the

improper comments, the result of his trial would have been different. Because T.D. and

H.C. testified, the jury was able to judge for themselves the witness’s appearance on the

stand, manner of testifying, the reasonableness of their testimony, the accuracy of

memory, frankness or lack of it, and any bias T.D. or H.C. may have. The jury further Tuscarawas County, Case No. 2023 AP 10 0050 42

heard the tape-recorded interview Durham gave to Deputy Balash and observed Durham

testify during trial subject to cross-examination. Also, any potential prejudice was

mitigated by the trial court’s instruction to the jury that closing arguments are not evidence.

McAlpin, 169 Ohio St.3d 279, ¶ 188, citing State v. Jones, 91 Ohio St.3d at 353 (2001).

{¶110} Durham has not demonstrated that the jury abandoned their oaths, their

integrity or the trial court’s instructions and found him guilty based upon the prosecutor’s

statements. It is clear beyond a reasonable doubt that the jury would have returned a

verdict of “guilty” regardless of the comments.

{¶111} Durham’s Fourth Assignment of Error is overruled.

V.

{¶112} In his Fifth Assignment of Error, Durham contends the trial judge

miscalculated his sentence.

{¶113} In light of our disposition of Durham’s Third Assignment of Error in which

we remand Durham’s case for resentencing, we find Durham’s Fifth Assignment of Error

to be premature.

{¶114} Durham’s Fifth Assignment of Error is overruled.

VI.

{¶115} In his Sixth Assignment of Error, Durham argues the cumulative effect of

the erroneous admission of evidence and, the prosecutor’s misconduct, resulted in the

denial of Durham's right to a fair trial.

{¶116} In State v. Brown, 2003-Ohio-5059, the Ohio Supreme Court recognized

the doctrine of cumulative error. The cumulative error doctrine does not apply, however, Tuscarawas County, Case No. 2023 AP 10 0050 43

where the defendant “cannot point to ‘multiple instances of harmless error.’” State v.

Mammone, 2014-Ohio-1942, ¶ 148 quoting State v. Garner, 74 Ohio St.3d 49, 64 (1995).

{¶117} In the instant case, we have found just one instance of error in failing to

merge the Endangering Children count with the Gross Sexual Imposition and Rape

counts. The doctrine of cumulative error is therefore inapplicable. We conclude that the

cumulative effect of the failure to merge is also harmless because it did not materially

affect the verdict. State v. Leonard, 2004-Ohio-6235, ¶ 185.

{¶118} Durham’s Sixth Assignment of Error is overruled.

Conclusion

{¶119} Durham’s First, Second, Fourth, Fifth and Sixth Assignments of Error are

overruled.

{¶120} Durham’s Third Assignment of Error is sustained and we remand this matter

solely for purposes of merging the Endangering Children count with the Gross Sexual

Imposition and Rape counts and, resentencing Durham accordingly.

{¶121} This decision in no way affects the guilty verdicts and sentences issued by

the jury on any other count of the indictment. It only affects the sentence with the sole

purpose of merging the Endangering Children count with the Gross Sexual Imposition

and Rape counts, and resentencing Durham accordingly. Tuscarawas County, Case No. 2023 AP 10 0050 44

{¶122} The decision of the Tuscarawas County Court of Common Pleas is affirmed

in all other respects.

By Gwin, P.J.,

Wise, J., and

King, J., concur