State v. Santibanez

2023 Ohio 3404, 224 N.E.3d 1268

• Court: Ohio Court of Appeals
• Decided: September 22, 2023
• Docket: OT-22-035
• Status: Published

Opinion

[Cite as State v. Santibanez, 2023-Ohio-3404.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

State of Ohio Court of Appeals No. OT-22-035

Appellee Trial Court No. 2021CRI091A

v.

Alejandro Paco Santibanez DECISION AND JUDGMENT

Appellant Decided: September 22, 2023

*****

James VanEerten, Ottawa County Prosecuting Attorney, and Thomas A. Matuszak and Barbara Gallé-Rivas, Assistant Prosecuting Attorneys, for appellee.

W. Alex Smith, for appellant.

OSOWIK, J.

{¶ 1} Following a jury trial, the defendant-appellant, Alejandro Paco Santibanez,

was convicted of rape and kidnapping by the Ottawa County Court of Common Pleas and

sentenced to an indefinite sentence of eleven (11) to sixteen and one-half (16.5) years in

prison. On appeal, appellant claims that the trial court violated his constitutional right to compulsory process when it precluded his parents from testifying on his behalf at trial.

We affirm.

I. Background

{¶ 2} On April 30, 2021, appellant was indicted on charges of rape, in violation of

R.C. 2907.02(A)(2) and (B), a felony of the first degree (Count 1); kidnapping, in

violation of R.C. 2905.01(A)(4) and (C)(1), a felony of the first degree (Count 1);

domestic violence, in violation of R.C. 2919.25(A) and (D)(2), a misdemeanor of the first

degree (Count 3); and abduction, in violation of R.C. 2905.02(B) and (C), a felony of the

third degree (Count 4). The charges stemmed from allegations made by M.S., appellant’s

estranged wife, who told police that appellant brutally raped her over the course of

several hours on April 23, 2021 in their Curtice, Ohio home. Appellant denied the

charges. He claimed that the two engaged in consensual, albeit rough sex.

{¶ 3} At the beginning of the three-day trial, the parties requested an order to

separate the witnesses, which the trial court granted. As day two of the trial was

beginning, appellant requested that, because the trial was being livestreamed on

YouTube, the trial court specify that the separation of witnesses order also applied to

viewers, who might be live-streaming. The court agreed and announced to courtroom

spectators and anyone watching on-line that violating its separation order would be

sanctioned.

2. {¶ 4} During its case-in-chief, the state presented the testimony of the victim who

described being raped digitally, vaginally and anally by appellant. She added that

appellant also punched and choked her, causing her to pass out and vomit. Part of the

assault was recorded by appellant, on the victim’s cell phone. The recording was played

for the jury, and the victim can he heard screaming on it. After the assault, the victim

called her sister for help, who took her to a hospital where she was examined by a SANE

(sexual assault nurse examiner). The SANE, who also testified, described 17 injuries

found all over the victim’s body, from facial bruising to tears to her vagina and anus.

While at the hospital, the victim received a text message from appellant, in which he

described himself as a “monster” and admitting to “unforgiveable” acts that included

raping, hitting, choking and threatening to kill the victim. Other trial witnesses included

the victim’s sister and multiple law enforcement officers.

{¶ 5} After the second day of trial, appellant, who was being held in the Ottawa

County Detention Facility, initiated three separate phone calls to his mother, K.A.

(“mother’). Each call lasted the full 15-minutes, the maximum allowed by jail-house

rule. The calls were also recorded and monitored, which all parties to the call are advised

of.

{¶ 6} The next morning, on the third and final day of trial, the state informed the

court that it had been contacted by law enforcement about the calls between appellant and

mother. The prosecutor was advised that appellant gave mother “a blow-by-blow

3. account of what the State’s witnesses testified to yesterday and prepped her to

specifically violate the Rules of Evidence and rape shield statute.” In particular,

appellant directed that, while mother was on the witness stand, she should “blurt out” that

the reason appellant was a “dick” to the victim shortly after they were married was

“because she had sent some nude photos of herself to another man.”

{¶ 7} When the state finished presenting its case-in-chief, a DVD—containing the

telephone calls and marked as Court’s Ex. 1—was played for the court and defense

counsel. Although the recordings were not transcribed, the hearing that followed the

playing of the calls was.

{¶ 8} After listening to the conversations between appellant and his mother,

defense counsel acknowledged that mother gained “a lot of knowledge she wouldn’t

[otherwise] have had” and that appellant “prompt[ed]” mother on “several occasions” to

“‘talk about this and that.’” Counsel described “this and that” as information pertaining

to the victim’s sexual “history,” which the trial court had specifically “precluded under

the rape shield law.”

{¶ 9} Defense counsel said that, even though mother and stepfather might “[blurt]

out something” and cause a mistrial, he “would still like to call them” as witnesses. The

state urged the trial court to preclude their testimony, as a consequence for appellant’s

“intentional violation” of the court’s separation-of-witnesses order.

{¶ 10} In granting the state’s motion, the trial court said,

4. Well, the heads up to what the testimony was * * * over the course

of the days is certainly something we tried to not let happen, but I am not

sure how damaging that was.

But the prompting to say, “This is what your testimony should be,”

for me, it really fell apart in that third phone call.

So I will exclude the testimony of both parents at this point.

(3/10/2022 Tr. at 535).

{¶ 11} Following the hearing, the state rested its case, and appellant presented no

defense.

{¶ 12} The jury found appellant guilty of rape and kidnapping and not guilty of

abduction.1 Following a sentencing hearing, the trial court imposed an indefinite

sentence of eleven to sixteen-and-one-half years in prison as to the rape offense and

eleven years as to the kidnapping offense, with the sentences to be served concurrently.

The court also ordered appellant to register as a Tier III sex offender.

{¶ 13} Appellant appealed and raises a single assignment of error:

ASSIGNMENT OF ERROR I: Santibanez was deprived of his due

process right of compulsory process by not being allowed to call defense

witnesses in violation of the 6th and 14th Amendments.

1 The domestic violence charge was dismissed at the request of the state, and the abduction offense was redesignated as Count 3.

5. II. Law and Analysis

{¶ 14} An accused shall enjoy the right to have compulsory process for obtaining

witnesses in the accused’s favor under both the Sixth Amendment to the United States

Constitution and Article I, Section 10 of the Ohio Constitution. The right to compulsory

process has been described as “the right to present a defense, the right to present the

defendant’s version of the facts as well as the prosecution’s to the jury so it may decide

where the truth lies. * * * This right is a fundamental element of due process of law.”

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.E.2d 1090 (1967). The

manner of enforcing the constitutional right to compulsory process is provided by R.C.

2945.45 (“Subpoenas to issue to any country”) and Crim.R. 17.

{¶ 15} In this case, subpoenas were issued, at appellant’s request, to mother and

stepfather, compelling each to testify at trial. In his sole assignment of error, appellant

contends—for the first time—that the trial court violated his right to compulsory process

when it precluded them from testifying. Appellant not only failed to object to the trial

court’s ruling at trial but defense counsel expressed his “understand[ing] if the Court

takes a position where [the witnesses] are excluded.” Because appellant raises this

constitutional challenge for the first time on appeal, he has forfeited all but plain error.

State v. Ruble, 4th Dist. Washington No. 16CA20, 2017-Ohio-7259, ¶ 38-39. To prevail

on a claim of plain error, appellant must show that an error occurred, that the error was

plain, and that but for the error, the outcome of the trial clearly would have been

6. otherwise. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶

69. Appellate courts take notice of plain error with utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice. State v. Obermiller,

147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 62.

{¶ 16} Of course, the trial court precluded mother and stepfather from testifying as

a consequence for appellant’s violation of its separation-of-witnesses order. The purpose

of separating witnesses is to prevent a witness from hearing the testimony of other

witnesses, which serves to prevent that witness from altering his or her own testimony to

support or undermine the prior testimony. State v. Waddy, 63 Ohio St.3d 424, 434, 588

N.E.2d 819 (1992), superseded by state constitutional amendment on other grounds.

Moreover, and important to the facts of this case, the rule also proscribes a spectator or

witness from telling a prospective witness what has taken place in court if the judge has

ordered separation of witnesses. State v. Spirko, 59 Ohio St.3d 1, 14, 570 N.E.2d 229

(1991) (Revealing prior testimony to a prospective witness is “highly improper”).

{¶ 17} Normally, the exclusion of a witness should not be disturbed by a

reviewing court absent an abuse of discretion. State v. Smith, 49 Ohio St.3d 137, 142,

551 N.E.2d 190 (1990). “However, where the court seeks to exclude a witness for

violating a separation order, there must be a showing that the party calling the witness

consented to, connived in, procured or had knowledge of the witness’ disobedience.

Secondly, the testimony sought to be introduced must be important to the defense such

7. that exclusion of the evidence constitutes prejudicial error.” Id. See also State v. Baker,

6th Dist. Lucas No. L-03-1026, 2004-Ohio-5894, ¶ 11 (“Ohio’s long-standing rule

permits witnesses to testify unless the court finds the separation order was intentionally

violated.”). “Therefore, in order to conclude that a trial court’s exclusion of a disobedient

witness was proper pursuant to Smith, a reviewing court must either find that the defense

encouraged or knew of the witness’s violation, and if the defense did not, then it must

find that the witness’s exclusion caused no prejudice to the defendant.” State v. DeWitt,

7th Dist. Mahoning No. 09MA68, 2010-Ohio-4777, ¶ 61-63.

{¶ 18} Here, the evidence is undeniable that “the party calling the witness,” i.e.

appellant calling his mother to testify, “consented to, connived in, procured or had

knowledge of the witness’ disobedience.” The recorded phone calls clearly show

appellant coaching his mother on what to expect and how to testify. Appellant can also

be heard saying that he “might use her for something tomorrow * * * [that] hasn’t been

allowed to be brought up,” namely the fact that the victim sent naked pictures of herself

to another man. Ironically, appellant’s request—early in the trial—that the trial court

warn potential witnesses who might be livestreaming, undercuts any possible claim by

appellant that he did not realize he was acting in defiance of the separation order. In sum,

the evidence clearly establishes that appellant connived and attempted to procure

testimony in violation of the court’s separation order and the Rape Shield Statute.

8. Therefore, we find no error, much less plain error, in the trial court’s decision to bar

mother from testifying.

{¶ 19} Separately, appellant argues that the trial court erred in barring stepfather

from testifying because it is “unknown” whether he was a party to the jailhouse calls and

therefore also unknown whether he was aware of appellant’s malfeasance. We note, as

did the state, that the record indicates that stepfather was “usually on the other phone

[and] always [with mother]” when trial counsel and mother had conversations about the

trial. But, even if we were to agree that it is speculative that father listened in on those

calls and/or that mother shared the contents of the calls with stepfather, the problem—for

appellant—is that he has failed to offer any evidence that he was prejudiced by the order

to exclude stepfather from testifying. Again, appellant did not object to the ruling, and

just as problematic, he failed to proffer what stepfather would have testified about.

Appellant asserts, incorrectly, that it was the trial court’s duty to “voir dire” the parents,

but he offers no legal authority to support his claim. And, because appellant made no

proffer as to what stepfather would have testified about, we cannot find that his exclusion

caused appellant to suffer any prejudice. Accord State v. Fouts, 4th Dist. Washington

No. 15CA25, 2016-Ohio-1104, ¶ 54, citing State v. Mitts, 81 Ohio St.3d 223, 227, 690

N.E.2d 522 (1998), applying Evid. R.103(A)(2) (“More importantly, in the absence of a

proffer the issue has not been preserved for review.”).

9. {¶ 20} For the record, we note that defense counsel indicated at trial that he

intended to call the parents “because they were part of what happened on the 22nd after

the incident occurred,” specifically, that the parents “were involved in phone calls with

[appellant]” and “they were telling him to do certain things.” Thus, the parents would

have testified about communications between themselves and appellant after the attack,

pertaining to their advice to appellant. In other words, it did not pertain to appellant’s

guilt or innocence and therefore, we find, would not have resulted in a different outcome,

had they been allowed to testify. Given the absence of any proffer and because there is

no indication that the excluded testimony was prejudicial to the defense, we find no plain

error by the trial court in excluding mother or stepfather’s testimony. Accord Fouts at ¶

55 (No abuse of discretion to exclude daughter’s testimony as a discovery sanction where

father, who was accused of sex crimes against daughter’s friend, failed to proffer

testimony and where daughter “was not present during encounter between her father and

the victim and therefore did not have first-hand knowledge of the events.”).

III. Conclusion

{¶ 21} The Compulsory Process Clause “provides [a defendant] with an effective

weapon, but it is a weapon that cannot be used irresponsibly.” Taylor v. Illinois, 484 U.S.

400, 410, 108 S. Ct. 646, 98 L. Ed.2d 798 (1988). Here, appellant sacrificed his right to

compel testimony as a consequence for his flagrant violation of the trial court’s

10. separation of witnesses order and more generally for attempting to undermine the trial by

supplying his mother with testimony he knew was not allowed.

{¶ 22} We find appellant’s sole assignment of error not well-taken, and we affirm

the trial court’s July 21, 2022 Judgment Entry. The costs of this appeal are assessed to

appellant pursuant to App.R. 24. It is so ordered.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Myron C. Duhart, P.J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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