State v. Hurt

821 N.E.2d 1033, 158 Ohio App. 3d 671, 2004 Ohio 4266
CourtOhio Court of Appeals
DecidedAugust 13, 2004
DocketNo. 20155.
StatusPublished
Cited by4 cases

This text of 821 N.E.2d 1033 (State v. Hurt) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hurt, 821 N.E.2d 1033, 158 Ohio App. 3d 671, 2004 Ohio 4266 (Ohio Ct. App. 2004).

Opinion

Brogan, Judge.

{¶ 1} Zachary B. Hurt was found guilty by a jury in the Montgomery County Court of Common Pleas of unlawful sexual conduct with a minor, a felony of the third degree. The trial court sentenced him to community-control sanctions and ordered the forfeiture of his computer to the Riverside Police Department.

{¶ 2} The state’s evidence established the following facts.

{¶ 3} Hurt, a 43-year-old gay male, and Stephen Howell, a 19-year-old gay male, met over the Internet in late September 2002. After talking several times on the telephone, they first met in person on September 22, 2002. On Friday, September 27, 2002, Hurt and Howell again met. Howell stayed at Hurt’s apartment on Friday night and spent Saturday with him. On that Saturday, Howell informed Hurt that he was not interested in a romantic relationship with him. Despite that conversation, Howell spent Saturday night with Hurt, as well. On Sunday morning, while Hurt was taking a shower, Howell used Hurt’s computer and logged onto the Internet as hotass69_1983. While online, Howell communicated with N.F., a 15-year-old gay male, and they arranged to meet that day as friends. According to Howell, he informed Hurt that he was going to see a 15-year-old friend in Greenville. Hurt responded, “Are you sure he’s not an undercover cop?”

{¶ 4} During the early afternoon, Howell picked up N.F. at his home, and they drove to the Dayton Mall. After window-shopping and eating dinner, Howell received a telephone call from Hurt. Hurt indicated that Howell had left some clothes at his apartment, and he invited them to visit, watch a movie, and go to the music store. With N.F.’s agreement, Howell and N.F. went to Hurt’s residence. When they arrived, Howell and N.F. sat down on Hurt’s couch to watch the end of Grease, which was airing on the television. Hurt brought Howell’s clothes to the living room. After Grease had ended, Hurt invited the two into his bedroom, where his computer was located, to search online for ring *674 tones for Howell’s cellular telephone. Howell sat in the computer chair, Hurt milled around the room, and N.F. sat on the bed. After searching unsuccessfully, Hurt put an all-male pornographic video, entitled Mine’s Bigger Than Yours, into his VCR and began to play it. Howell moved onto the bed beside N.F., and Hurt sat on a chair in front of the bedroom door.

{¶ 5} N.F. was aroused by the video, and he asked Hurt if he could go to the bathroom. Hurt and Howell understood that N.F. wanted to masturbate. Hurt responded, “Why don’t you stay here; we’re all friends.” N.F. pulled down his pants to his thigh and began to masturbate on the bed. Hurt touched N.F.’s inner thigh and penis and stroked N.F.’s penis. Hurt then instructed Howell to perform oral sex on N.F., which he did for several seconds. In addition, Hurt performed oral sex on N.F. and then kissed him. After the oral sex had ceased, N.F. masturbated until he ejaculated. Hurt provided him with towels, and N.F. cleaned up. Howell and N.F. left Hurt’s apartment shortly thereafter. Howell and N.F. subsequently reported the incident to the Riverside police.

{¶ 6} Hurt asserts four assignments of error on appeal. Because we conclude that the third assignment of error is dispositive, we address that assignment only.

{¶ 7} “3. The trial court’s continuous pattern of permitting the prosecutor to introduce evidence more prejudicial than probative served to deny appellant due process.”

{¶ 8} In his third assignment of error, Hurt asserts that the trial court erred in admitting evidence of Hurt’s failure to report his roommate’s income and workers’ compensation income to his subsidized rental authority, of the pictures of male genitalia on his computer, of N.F.’s reaction to the incident, and of Hurt’s sexual activity with Howell.

{¶ 9} Evid.R. 403(A) provides, “Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” “Resolution of the question of whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury is necessarily commended to the discretion of the trial court.” (Emphasis sic.) State v. Petty (June 4, 1992), Montgomery App. No. 13002, 1992 WL 120503; State v. Rogers, Miami App. No. 2003-CA-30, 2004-Ohio-2746, 2004 WL 1178764.

{¶ 10} First, Hurt argues that “the allusion and innuendo that Hurt may be exaggerating his workers’ compensation disability and may be failing to report income or roommates for his subsidized rent” were inadmissible, because they were offered solely to demonstrate that he was dishonest, in violation of Evid.R. 404(B) and R.C. 2945.59. Hurt states that evidence of other acts is limited to *675 those that are closely related in time, nature, and place to the offense charged. The state responds that “Evid.R. 608(B) allows a party to question a witness on cross-examination about specific instances of conduct for the purpose of attacking credibility.”

{¶ 11} “The Ohio Rules of Evidence clearly delineate the methods by which a party may impeach a witness. Credibility may be attacked by evidence that the witness has been convicted of a crime (Evid.R.609), or by evidence of the witness’s character for untruthfulness (Evid.R.608).” State v. Rodriquez (1986), 31 Ohio App.3d 174, 176, 31 OBR 339, 509 N.E.2d 952; State v. Skatzes, Montgomery App. No. 15848, 2003-Ohio-516, 2003 WL 490549. Under Evid.R. 608(B), a party may, in the court’s discretion, cross-examine a victim regarding false statements if they are clearly probative of truthfulness or untruthfulness. See State v. Fredrick, Montgomery App. No. 18996, 2002-Ohio-1195, 2002 WL 360643; State v. Boggs (1992), 63 Ohio St.3d 418, 421, 588 N.E.2d 813. “Other than the Evid.R. 609 exception for certain criminal convictions, a witness’s credibility may not be impeached by extrinsic proof of special instances of his conduct; such conduct may be inquired into only by the intrinsic means of cross-examination within the guidelines set forth in Evid.R. 608(B). Criminal activities not resulting in conviction cannot ordinarily form the basis for an attack upon a witness’s credibility.” (Citations omitted.) Skatzes, supra, at ¶ 183.

{¶ 12} In the present case, the state argues, and Hurt acknowledges, that the sole purpose of the evidence regarding his alleged exaggeration of his disability and his apparent failures to place his nephew on his lease and to report his nephew’s income to his subsidized housing authority was to imply that he is dishonest. We agree with the state that this evidence is probative of Hurt’s truthfulness, and thus the evidence is permitted, in the court’s discretion, pursuant to Evid.R. 608(B). Accordingly, the trial court did not err in permitting the state to cross-examine Hurt as to this conduct.

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821 N.E.2d 1033, 158 Ohio App. 3d 671, 2004 Ohio 4266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hurt-ohioctapp-2004.