State v. Stalder

2023 Ohio 3736

• Court: Ohio Court of Appeals
• Decided: October 13, 2023
• Docket: 21-CA-26
• Status: Published

Opinion

[Cite as State v. Stalder, 2023-Ohio-3736.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Andrew J. King, J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : GLEN STALDER : Case No. 21-CA-26 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: On Remand From The Supreme Court of Ohio, Case No. 21-CRB- 186

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 13, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH M SABO ANDREW R. SANDERSON 136 West Main Street 738 East Main Street P.O. Box 1008 Lancaster, OH 43130 Lancaster, OH 43130 Fairfield County, Case No. 21-CA-26 2

King, J.

{¶ 1} This matter is before this Court upon remand from the Supreme Court of

Ohio. In appellant Glen Stalder's direct appeal of his conviction and sentence by the

Fairfield County Court of Common Pleas, State v. Stalder, 5th Dist. Fairfield No. 21 CA

26, 2022-Ohio-398-1386, we addressed his third assignment of error and found Stalder

established a prima facie case of purposeful gender discrimination based on the state's

exercise of two peremptory challenge of male prospective jurors. We declined to address

Stalder's first and second assignments of error as moot in light of our ruling on his Batson

challenge. The state appealed, and the Ohio Supreme Court accepted a discretionary

appeal. The Supreme Court found that Stalder failed to set forth sufficient facts and

circumstances to establish a prima facie case of purposeful gender discrimination. The

Supreme Court reversed our decision on Stalder's Batson challenge and remanded the

case to this court to address Stalder's remaining assignments of error. State v. Stalder, -

-- N.E.3d----, 2023-Ohio-2359. Pursuant to the Supreme Court's judgment entry, we

therefore address Stalder's first and second assignments of error.

Facts and Procedural History

{¶ 2} On February 21, 2021, 26-year-old J.R. was working at the Amanda

Carryout where Stalder was a regular customer. Stalder arrived at the store at 7:00 a.m.,

that day, got coffee and hung around for approximately two hours. It was unusual for

Stalder to be in the store longer than a few minutes. During that two hours Stalder was in

and out of the store, he would go outside to talk to other people who were also hanging

around and then go back into the store to talk to J.R. when no other customers were

present. Fairfield County, Case No. 21-CA-26 3

{¶ 3} When Stalder was in the store alone with J.R. he did things that made J.R.

uncomfortable including staring at her, licking his lips, and making moaning sounds. He

told J.R. that a girl like her probably would not be into a guy like him. When Stalder

continued to loiter inside the store, J.R. busied herself stocking items in hopes that Stalder

would just leave. At one point Stalder blocked J.R.'s only path back to the register and

motioned with his arms that he wanted a hug. J.R. complied hoping that would get Stalder

to leave, but instead of just giving J.R. a hug, appellant grabbed J.R.'s buttocks over her

clothing and squeezed. He then let go and stepped to the side so J.R. could pass, but as

she did Stalder grabbed J.R.'s crotch over her clothing. Stalder then told J.R. he would

like to put his tongue in her vagina. Stalder was later charged with one count of sexual

imposition pursuant to R.C. 2907.06(A)(1).

{¶ 4} Stalder pled not guilty and opted to proceed to a jury trial which took place

on July 29, 2021. Before trial, the state filed a motion in limine asking the trial court to

prohibit Stalder from introducing any evidence regarding the termination of J.R.'s

employment from the Amanda Carryout, which occurred well after the incident here. The

trial court granted the state's motion.

{¶ 5} At trial, the state presented evidence from J.R. and Fairfield County Deputy

Sheriff Shane Tigner who responded to the call regarding the incident. Stalder rested

without presenting any evidence. Stadler did, however, make a proffer as to what

testimony from the owner of the Amanda Carryout would have entailed regarding the

termination of J.R.'s employment, as well as a proffer as to statements made or not made

by J.R. which he would have introduced through Deputy Tigner, but was prohibited from

doing so. Fairfield County, Case No. 21-CA-26 4

{¶ 6} After hearing the evidence and deliberating, the jury found Stalder guilty.

He was sentenced to 7 days in jail, a $500 fine, and a period of community control.

{¶ 7} Stalder's remaining assignments of error are as follow:

I

{¶ 8} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE

DEFENDANT-APPELLANT'S REQUEST TO PRESENT EXCULPATORY EVIDENCE."

II

{¶ 9} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN PERMITTING

THE INTRODUCTION OF CERTAIN EVIDENCE IN THE PROSECUTION OF THE

CASE BELOW."

{¶ 10} In his first assignment of error, Stalder argues the trial court infringed on his

constitutional right to a fair trial when it excluded evidence of J.R.'s termination from the

Amanda Carryout and further when it denied his inquiry with Deputy Tigner regarding

statements made or not made by J.R. We disagree.

Applicable Law

{¶ 11} Relevant evidence is "evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." Evid.R. 401. Evidence, although relevant,

may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury. Evid.R. 403. The trial court is

vested with broad discretion when weighing evidence under Evid.R. 403. State v. Lang,

129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 87. "A reviewing court will not

interfere absent a clear abuse of that discretion." State v. Bethel, 110 Ohio St.3d 416, Fairfield County, Case No. 21-CA-26 5

2006-Ohio-4853, 854 N.E.2d 150, ¶ 171. "Abuse of discretion" means an attitude that is

unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d

83, 87, 482 N.E.2d 1248 (1985). Most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990). An unreasonable decision is one backed by no sound

reasoning process which would support that decision. Id. "It is not enough that the

reviewing court, were it deciding the issue de novo, would not have found that reasoning

process to be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result." Id.

{¶ 12} As to Stalder's first complaint, why J.R.'s employment was terminated long

after she was assaulted by Stalder simply had no bearing on any fact of consequence in

this matter. Counsel for Stadler admitted he did not know when J.R. was terminated other

than "[w]ell after the alleged incident," and further that "[i]t was not at all connected to this

incident." Transcript of trial (T.) 187. We therefore find no error in the trial court's ruling.

{¶ 13} Next, counsel for Stadler attempted to question Deputy Tigner about what

J.R. said to him during the course of the investigation. Specifically, counsel attempted to

ask Deputy Tigner if J.R. had told him about the lewd comment Stadler made to her.

{¶ 14} Counsel's relevant questioning to J.R. consisted of the following:

[Counsel]: When you talked to the police, what did you tell them

about this incident?

[J.R.]: I told them everything that I said.

[Counsel]: Everything that happened? Fairfield County, Case No. 21-CA-26 6

[J.R.] Yeah.

[Counsel]: Every single thing you testified to this jury about. Correct?

[J.R.]: Yes.

[Counsel]: Including the things he said to you?

{¶ 15} T. 134-135.

{¶ 16} Counsel made no attempt to impeach J.R.'s testimony with any prior written

or recorded statement made by J.R.

{¶ 17} Counsel for Stalder then questioned deputy Tigner as follows:

[Counsel]: * * * You said you did speak with her concerning the

answer?1

[Tigner]: Correct, in the office.

[Counsel]: And what were some of the things she told you?

[The state]: Objection.

The Court: [Counsel]?

[Counsel]: It's going to be a prior inconsistent statement, Your Honor.

The Court: As to what – approach.

(thereupon a side-bar discussion was held as follows:)

The Court: What prior inconsistent statement?

[Counsel] He said he would stick his tongue in my vagina.

1 It is unclear what "answer" is being referenced here. Before this question counsel was refreshing Tigner's recollection as to what time he arrived at the scene. Fairfield County, Case No. 21-CA-26 7

[The state]: That's not –

[Counsel]: No, that's my point.

[The state]: Your Honor –

The Court: Well, how is it inconsistent?

[Counsel]: Because she didn't tell him that.

The Court: Well, so the absence of telling someone, that's not

inconsistent.

[Counsel]: Sure it is.

[The Court]: No, it's not.

[Counsel]: I'm saying it's not. Okay.

[The Court]: [Counsel], I'm saying it's not inconsistent. It may be

something she didn't say, bit it's not inconsistent to her testimony –

what she testified to here today.

[Counsel]: She testified she told the deputy that.

[The Court]: I don't recall that.

[Counsel]: I went back – There was a specific reason I went over it

for this very purpose. The first time I heard that statement was in

court today. The reason it was the first time I heard that statement

was because she didn't tell the deputy. And I asked her and she said

yes, I told the deputy everything that happened.

The Court: I don't recall her – what she said she told – I don't know

that saying something – not saying something that she said here

today is an inconsistent statement. * * * I'm sustaining the objection

here. Fairfield County, Case No. 21-CA-26 8

{¶ 18} T. 172-173.

{¶ 19} Before resting his case, counsel for Stalder then made the following proffer:

Additionally, Defendant's Exhibit 2, which is the narrative supplement

that the deputy prepared in connection with this case demonstrates

that at no time was that statement reported to the officer. He does

not include that in his statement and if allowed to question the

Deputy, he would have revealed he is very experienced, recognizes

the importance of reporting statements like that and would have

surely included it in his report had it been made to him. The Court

determined it was inappropriate for us to go there and, therefore, we

are putting on the record that's what we anticipate the evidence

would have been.

{¶ 20} T. 188.

{¶ 21} Stalder did not enter Defendant's Exhibit 2 into evidence. T. 189.

{¶ 22} The state objected to Stalder's line of questioning as hearsay. Counsel for

Stalder argued it was to expose a prior inconsistent statement. Here on appeal, Stalder

makes no argument as to how the evidence was admissible. While we are not obligated

to make arguments for an appellant, in the interest of justice we will look to the arguments

made at trial.

{¶ 23} During trial, Stalder appeared to argue Tigner's report was admissible via

Evid.R. 803(8) which provides: Fairfield County, Case No. 21-CA-26 9

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

(8) Public Records and Reports. Records, reports, statements, or

data compilations, in any form, of public offices or agencies, setting

forth (a) the activities of the office or agency, or (b) matters observed

pursuant to duty imposed by law as to which matters there was a

duty to report, excluding, however, in criminal cases matters

observed by police officers and other law enforcement personnel,

unless offered by defendant, unless the sources of information or

other circumstances indicate lack of trustworthiness.

{¶ 24} " 'Hearsay' is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted in the statement." Evid.R. 801(C).

{¶ 25} In addressing a nearly identical evidentiary fact pattern this court found:

* * * Appellant was attempting to introduce hearsay statements

nested within the document. Evid. R. 805 provides, "Hearsay

included within hearsay is not excluded under the hearsay rule if

each part of the combined statements conforms with an exception to

the hearsay rule provided in these rules." Appellant does not argue

the hearsay statements included within the report are admissible Fairfield County, Case No. 21-CA-26 10

under any other exception to the hearsay rule. We therefore find the

trial court did not abuse its discretion in excluding the statements

within the police report as hearsay. Further, the police report is not a

part of the record before this Court on appeal, and we therefore

cannot find Appellant was prejudiced by its exclusion.

{¶ 26} State v. Merritt, 5th Dist. Richland No. 2020CA0063, 2021-Ohio-2847 ¶ 38.

{¶ 27} So too here. We find Stalder's attempt to question Deputy Tigner regarding

any statements made by J.R. were properly excluded as hearsay.

{¶ 28} The first assignment of error is overruled.

{¶ 29} In his second assignment of error, Stalder argues the trial court erred in

permitting the introduction of victim-impact testimony. Specifically, Stalder argues J.R.'s

testimony regarding how this incident impacted her life was unfairly prejudicial. We

disagree.

{¶ 30} The admission or exclusion of evidence lies in a trial court's sound discretion

"so long as such discretion is exercised in line with the rules of procedure and evidence."

Rigby v. Lake County, 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991); State v. Sage,

31 Ohio St.3d 173, 510 N.E.2d 343 (1987).

{¶ 31} Evid.R. 403(A) states: "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."

{¶ 32} Testimony regarding the effect a defendant's criminal acts have on the

victim is usually irrelevant because it does not ordinarily involve the guilt or innocence of Fairfield County, Case No. 21-CA-26 11

the accused. State v. Wade, 8th Dist. Cuyahoga No. 90145, 2008-Ohio-4870, ¶ 17.

"Rather than proving any fact of consequence on the issue of guilt, victim impact

testimony tends to inflame the passions of the jury and risk conviction on facts unrelated

to actual guilt." Id., citing State v. White, 15 Ohio St.2d 146, 239 N.E.2d 65 (1968).

However, "[v]ictim-impact evidence is admissible in certain circumstances, such as when

the evidence relates to both the facts attendant to the offense and the effect on the victim."

State v. Rucker, 2d Dist. Montgomery No. 24340, 2012-Ohio-4860, ¶ 34, citing State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 138.

{¶ 33} Over Stalder's objection, J.R. was asked is she interacts differently with

people in the wake of this incident. She responded "It makes me like I felt like

uncomfortable around people anymore. I don't know what anybody's intentions are going

to do – be or like if – I always stay with somebody I know. I don't go out by myself anymore

or be alone anywhere." T. 127.

{¶ 34} Stalder argues the testimony was irrelevant, prejudicial and its admission

was significantly outweighed by confusing the issues or misleading the jury. We note the

testimony was limited and unemotional. There is no indication the jury was influenced by

the complained of testimony or that the outcome of the trial would have been different

without the testimony given there was a video of the incident.

{¶ 35} Upon review, we find the trial court did not abuse its discretion in permitting

the limited testimony.

{¶ 36} The second assignment of error is overruled. Fairfield County, Case No. 21-CA-26 12

{¶ 37} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By King, Andrew,

Wise, J., J. and

Baldwin, J. concur. [Cite as State v. Stalder, 2023-Ohio-3736.]