State v. Sharier

2019 Ohio 3533

• Court: Ohio Court of Appeals
• Decided: September 3, 2019
• Docket: 18AP0015
• Status: Published

Opinion

[Cite as State v. Sharier, 2019-Ohio-3533.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 18AP0015

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE STVEN B. SHARIER COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 2017 CRC-I 000042

DECISION AND JOURNAL ENTRY

Dated: September 3, 2019

CALLAHAN, Presiding Judge.

{¶1} Appellant, Steven Sharier, appeals his conviction by the Wayne County Court of

Common Pleas. This Court affirms.

I.

{¶2} On August 29, 2016, M.W. found an undated note in her teenage stepdaughter’s

bedroom that seemed to indicate that she had a romantic interest in a man named Steve. M.W.

learned that “Steve” probably referred to an adult friend of her stepdaughter’s mother. She then

confronted her stepdaughter, K.W., about the contents of the note. K.W. denied that she had

been sexually involved with the man to whom the note referred. A few days later, however,

K.W. left a note for her stepmother in which she apologized for lying and admitted that she had

gone to the home of a man named Steve during school hours and stated that “he made [her] have

sex with him.” 2

{¶3} M.W. immediately pulled K.W. from school and drove her to the Wayne County

Sheriff’s Office. K.W. gave a statement to Lieutenant Ryan Koster, who used computer records

to identify Mr. Sharier as the suspect. Lieutenant Koster also referred K.W. to the Wayne

County Child Advocacy Center for a forensic interview, which was conducted on September 13,

2016. In the next month, K.W. placed a controlled, recorded telephone call to Mr. Sharier after

initiating contact with him through a series of text messages. Mr. Sharier was interviewed by a

detective in January 2017, and shortly thereafter was charged with unlawful sexual contact with

a minor in violation of R.C. 2907.04(A).

{¶4} The State filed a motion in limine to exclude any extrinsic evidence related to

prior accusations of sexual abuse made by K.W. against another individual under Evid.R.

608(B). The trial court conducted a hearing on the motion and excluded all such evidence, but

did so based on application of State v. Boggs, 63 Ohio St.3d 418 (1992). The case proceeded to

a jury trial that resulted in a verdict of guilty, and the trial court sentenced Mr. Sharier to five

years in prison. He then filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED [BY] NOT DISMISSING THE INDICTMENT BASED ON INSUFFICIENT EVIDENCE.

{¶5} In his first assignment of error, Mr. Sharier urges this Court to articulate a

heightened standard of review to assess the sufficiency of the evidence. This Court declines to

do so.

{¶6} The due process secured by the Fourteenth Amendment to the United States

Constitution guarantees “that no person shall be made to suffer the onus of a criminal conviction

except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a 3

reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443

U.S. 307, 316 (1979). In applying this standard, courts do not evaluate credibility, and we make

all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

{¶7} Mr. Sharier has not argued that the evidence at trial failed to meet this standard.

Instead, he urges this Court to adopt a heightened measure of sufficiency because of the

“sensitive, emotional, and now political nature” of sex offenses. The existing standard, however,

comports with due process and is applied in cases of all kinds. See, e.g., State v. Myers, 154

Ohio St.3d 405, 2018-Ohio-1903, ¶ 132 (aggravated murder with death penalty specifications);

State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 165, 177-181 (rape); State v. Tate, 140

Ohio St.3d 442, 2014-Ohio-3667, ¶ 15-20 (gross sexual imposition and kidnapping). This same

standard is consistently applied when a defendant is convicted of unlawful sexual conduct with a

minor. State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 21-25; State v.

Watson, 9th Dist. Summit No. 25915, 2012-Ohio-1624, ¶ 5-7.

{¶8} This Court declines to depart from the standard of sufficiency set forth in Jackson

and Jenks. Mr. Sharier’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED BY NOT ALLOWING THE JURY TO KNOW ABOUT THE ALLEGED VICTIM’S PAST UNSUBSTANTIATED SEXUAL ABUSE ALLEGATIONS THAT SHE ADMITTED WERE FALSE.

{¶9} Mr. Sharier’s second assignment of error argues that the trial court erred by

excluding extrinsic evidence related to a prior allegation of sexual abuse that K.W. made against

a family member under the rape shield law. Mr. Sharier did not object in the trial court on this

basis, as he acknowledges, so he has forfeited all but plain error for purposes of appeal. See

Crim.R. 52(B). 4

{¶10} Crim.R. 52(B) permits this Court to notice plain errors or defects that affected a

substantial right in the absence of an objection in the trial court. This Court can only notice plain

error when there has been a deviation from a legal rule that constitutes an obvious defect in the

trial proceedings that affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27

(2002). This Court notices plain error only in exceptional circumstances to prevent a manifest

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

{¶11} R.C. 2907.02(D), which sets forth Ohio’s rape shield law, provides:

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

See also R.C. 2907.05(E) (setting forth the rape shield law in the context of the offense of gross

sexual imposition). The rape shield law “render[s] inadmissible evidence of the rape victim’s

sexual activity with one other than the accused where the evidence: does not involve the origin of

semen, pregnancy, or disease, or the victim’s past sexual activity with the offender; is offered

simply to impeach the credibility of the victim; and is not material to a fact at issue in the case.”

State v. Ferguson, 5 Ohio St.3d 160 (1983), paragraph two of the syllabus.

{¶12} When during cross-examination a victim admits to making a prior false rape

accusation, the trial court must conduct an in camera hearing to determine whether the rape

shield law prohibits further inquiry. Boggs, 63 Ohio St.3d 418 at paragraph two of the syllabus.

If the trial court determines that sexual activity was not involved in the prior false accusation, the

trial court has the discretion to permit inquiry under Evid.R. 608(B). Id. at paragraphs one and

two of the syllabus. “[U]nder no circumstances would the defense be permitted to introduce 5

extrinsic evidence.” Id. at 422, citing Evid.R. 608(B). As the State concedes, however, the rape

shield law does not apply to allegations of unlawful sexual conduct with a minor. See State v.

Smiddy, 2d Dist. Clark No. 06CA0028, 2007-Ohio-1342, ¶ 34 (concluding that “had the General

Assembly intended for the rape shield language to be applicable to unlawful sexual conduct with

a minor, it would have included that provision in R.C. 2907.04.”). To the extent that the trial

court based its decision to exclude the evidence at issue under the rape shield law, that decision

was in error.

{¶13} This Court may only notice plain error when, “but for the error, the outcome of

the trial clearly would have been otherwise.” Long, 53 Ohio St.2d 91 at paragraph two of the

syllabus. In this case, Mr. Sharier has not demonstrated that the result would have been

different had the trial court not applied the rape shield statute. To the extent that Mr. Sharier

complains that the trial court excluded the fact that K.W. is alleged to have made a prior false

accusation of sexual assault, this Court notes that he testified to this effect during his direct

examination without objection. When defense counsel inquired about Mr. Sharier’s conduct

during the controlled telephone call placed by K.W., he testified as follows:

Q: What else made you suspect it was a controlled call?

A. Well, I mean, after my wife had asked me if I knew of any charges being dismissed against me or unsubstantiated, of course, it’s lingering in the back of my head and then, randomly, out of the blue, I’m receiving text messages and now a call?

Q: Okay.

A: She was also very vehement in asking sexual related [sic] questions which, obviously put me on guard and then made me recall that she had previously gotten someone else in trouble on the same regard.

Mr. Sharier’s own testimony, therefore, placed the allegation that K.W. had “previously gotten

someone else in trouble” for a sex offense before the jury. In addition, Mr. Sharier referenced 6

prior allegations against several individuals during a recorded interview with Detective Alex

Abel that was played during trial and admitted into evidence. Given that the previous

accusations alleged to have been made by K.W. were before the jury, this Court cannot conclude

that the result of the trial would have been different had the trial court ruled otherwise.

{¶14} To the extent that Mr. Sharier argues that the trial court incorrectly excluded

extrinsic evidence related to the allegation, he also has not demonstrated that the result of the

trial would have been different but for reliance on the rape shield law. Although Evid.R. 608(A)

permits the introduction of opinion or reputation evidence related to a witness’s character for

untruthfulness, Evid.R. 608(B) provides that “[s]pecific instances of the conduct of a witness, for

the purposes of attacking or supporting the witness’s character for truthfulness, other than

conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic evidence.” See

also State v. Kamel, 12 Ohio St.3d 306 (1984), paragraph two of the syllabus (“[A] witness’[s]

credibility may not be impeached by extrinsic proof of specific 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).”). Prior allegations of sexual assault “are an entirely

collateral matter which may not be proved by extrinsic evidence.” Boggs at 422, citing Kamel at

paragraph two of the syllabus.

{¶15} Mr. Sharier maintains that the trial court should have permitted him to introduce

“the children’s services records, social worker testimony, and perhaps testimony from [the prior

accused] and any other family members” because the prior accusation “was probative as to

whether she was telling the truth about Sharier.” Even without applying the rape shield statute,

however, that extrinsic evidence could not have been admitted as evidence of K.W.’s character

for untruthfulness. See Evid.R. 608(B); Boggs at 422. 7

{¶16} Mr. Sharier has not demonstrated that the outcome of his trial would have been

different if the trial court had not relied on the rape shield law. This Court, therefore, cannot

notice plain error in this case. Mr. Sharier’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM PRISON SENTENCE.

{¶17} In his final assignment of error, Mr. Sharier argues that the trial court should not

have imposed the maximum sentence. This Court disagrees.

{¶18} This Court may modify or vacate a felony sentence “only if it determines by clear

and convincing evidence that the record does not support the trial court’s findings under relevant

statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. With respect to maximum sentences, a trial court has “full discretion to

impose a prison sentence within the statutory range” and is “no longer required to make findings

or give * * * reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus.1

{¶19} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender using the minimum sanctions

that the court determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.” R.C. 2929.11(A). Trial courts have discretion in

fashioning felony sentences with consideration for the factors provided in R.C. 2929.12(B)-(F).

R.C. 2929.12(A). “R.C. 2929.12(B) includes factors that suggest that the offense is more

1 The Reagan Tokes Law, Am.Sub.S.B. No. 201, 2018 Ohio Laws 157, effective March 22, 2019, made substantive amendments to Ohio’s felony sentencing statutes with respect to felonies of the first and second degree committed after the effective date of the amendments. Those changes are not at issue in this appeal. 8

serious. R.C. 2929.12(C) includes factors suggesting the offense is less serious. The recidivism

factors—factors indicating an offender is more or less likely to commit future crimes—are set

forth in R.C. 2929.12(D) and (E).” State v. Thrasher, 9th Dist. Summit No. 27547, 2015-Ohio-

2504, ¶ 5.

{¶20} Mr. Sharier does not dispute that his sentence is within the permissible range for

unlawful sexual conduct with a minor, which is a third-degree felony. See R.C. 2907.04(B)(3).

Instead, he has argued that the record does not support the sentence that the trial court imposed.

{¶21} R.C. 2929.12(B), in relevant part, provides that the following factors indicate that

an offender’s conduct is “more serious than conduct normally constituting the offense”:

(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.

(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.

* * * [and]

(6) The offender’s relationship with the victim facilitated the offense.

Although the trial court did not utilize a presentence investigation, the trial court considered the

evidence at trial in addition to victim impact statements from K.W. and her father and

stepmother. In imposing the maximum sentence of sixty months in prison, the trial court noted

the psychological harm done to K.W., her tender age, her vulnerability given the instability of

her relationship with her mother, and the fact that Mr. Sharier took advantage of that situation in

the commission of the offense. The record supports the trial court’s exercise of its discretion to

impose the maximum sentence in this case. See Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, at

paragraph three of the syllabus.

{¶22} Mr. Sharier’s third assignment of error is overruled. 9

III.

{¶23} Mr. Sharier’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

LYNNE S. CALLAHAN FOR THE COURT

SCHAFER, J. CONCURS. 10

CARR, J. DISSENTING.

{¶24} I respectfully dissent from the majority’s resolution of Sharier’s second

assignment of error. First, I question the majority’s application of the plain error standard in

light of Sharier’s objection to the trial court’s decision during the in camera hearing.

Irrespective, I cannot conclude that the error in prohibiting the cross-examination of K.W. about

sexual abuse allegations she made against her sibling and later retracted did not warrant reversal.

Credibility played a pivotal role in this case. Essentially, the case turned on whether the jury

believed K.W.’s or Sharier’s testimony. There was no physical evidence or corroborating

witnesses to verify either person’s whereabouts at the relevant time.

{¶25} As a basis to conclude the error did not warrant reversal, the majority points to

comments by Sharier during his recorded interview with police and the controlled phone call

which indicate that K.W. previously accused other people of wrongdoing and got them in

trouble. However, nothing in those comments would lead the jury to suspect that K.W. may

have made false accusations or later retracted her allegations. Thus, those comments would not

cause the jury to question K.W.’s truthfulness.

{¶26} Moreover, what the jury knew of the alleged abuse of K.W. by her sibling would

also not have caused the jury to question K.W.’s truthfulness. K.W. testified that she had never

claimed to have engaged in sexual activity with someone when it did not happen. Further, the

jury saw a note that indicated K.W.’s sibling molested her and heard K.W.’s stepmother testify

that, as far as she knew, charges were still pending against the sibling. Thus, the evidence about

the alleged abuse would not have called K.W.’s truthfulness into question.

{¶27} If Sharier had been permitted to cross-examine K.W. about the alleged abuse by

her sibling, the jury likely would have heard that K.W. had retracted her allegations. While the 11

jury also would have likely heard K.W. assert that she was pressured to recant and that the

allegations were true, the jury should have been able to hear and evaluate that evidence,

particularly given the importance of credibility in this case.

{¶28} Because I cannot conclude that the error in prohibiting the cross-examination of

K.W. about these allegations did not warrant reversal, I respectfully dissent from the judgment of

the majority.

APPEARANCES:

DAVID V. GEDROCK, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.