State v. Kamer
| Docket Number | WD-20-084 |
| Decision Date | 17 June 2022 |
| Citation | 2022 Ohio 2070 |
| Parties | State of Ohio Appellee v. Gregory Scott Kamer, Jr. Appellant |
| Court | Ohio Court of Appeals |
Paul A. Dobson, Wood County Prosecuting Attorney, and David T Harold, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
DECISION AND JUDGMENT
{¶ 1} Appellant, Gregory Kamer Jr., appeals the November 6, 2020 judgment of the Wood County Court of Common Pleas sentencing him to four consecutive sentences of life in prison without the possibility of parole, plus 30 months. Because Kamer was prejudiced by the trial court admitting other-acts testimony for a purpose not permitted by Evid.R 404(B) and improperly admitting numerous incriminating statements through hearsay testimony-and the state did not prove that these errors were harmless beyond a reasonable doubt-we reverse.
{¶ 2} In November 2019, Kamer was indicted on 12 charges related to the sexual abuse of K.K. ("the child"), who was five years old at the time of the offenses. Counts 1, 2, 3, 4, 7, 8, 9, and 10 charged Kamer with rape in violation of R.C. 2907.02(A)(1)(b), each a first-degree felony; counts 5 and 11 charged him with gross sexual imposition in violation of R.C. 2907.05(A)(4), each a third-degree felony; and counts 6 and 12 charged him with disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1), each a fourth-degree felony. The charges in the indictment were divided over two periods of time; the state alleged that counts 1 through 6 happened "[o]n or about December 1, 2018 to February 28, 2019[, ]" and that counts 7 through 12 happened "[o]n or about March 1, 2019 to July 29, 2019[.]"
{¶ 3} Kamer's case was tried to a jury in October 2020. The state presented the testimony of C.K. ("mother"), the child's mother; the child; Alison Alstott, a social worker; detective Matt Simon of the Lake Township Police Department ("LTPD"); Abigail Grieser, a child abuse investigator from the Wood County Department of Job and Family Services ("JFS"); Alicia Martinez, a sexual assault nurse examiner ("SANE"); and G.K., Kamer's former stepdaughter. Kamer presented the testimony of Dr. Gregory Forgac, a psychologist, and testified in his own behalf. The following facts were adduced at trial.
{¶ 4} The state began its case by presenting mother's testimony. Mother testified that, at the time of the events alleged in the indictment, she was in a relationship with Kamer, and they were living at the motel where mother worked. The child, who was mother's child from a different relationship, and a younger daughter ("sibling") that mother and Kamer shared also lived with them. Mother said that the child and Kamer had a good relationship; the child "wanted [Kamer] to be her dad * * *" and "liked the thought of having a dad." From the time that they moved into the motel in November or December of 2018 until approximately February or March of 2019, Kamer watched the children while mother worked her shifts at the motel. After that, mother put the children in daycare, so Kamer no longer watched them while she worked.
{¶ 5} Altogether, Kamer lived with mother and the children in three different rooms at the motel. The first room that they lived in was a "single room with one bed" that was furnished with a king-sized bed, and that mother outfitted with a toddler bed for the child and a pack 'n' play for the sibling. Because of the size of the room, mother said that it was "a lot harder to box off * * *" the children's area like she later did in the larger rooms. Although the children were in the same room as mother and Kamer, mother said that the child never saw her and Kamer having sex. The adults took preventative measures to conceal their sexual activity from the children, including waiting until the girls were asleep to have sex, staying under the covers during sex, leaving the TV on, and stacking four or five king-sized pillows to create a wall between them and the children. Although mother said that there was a "small chance" that the child might have overheard Kamer telling mother to relax and watch TV while he was performing oral sex on mother, mother did not "believe there would be a way [the child] would have heard it."
{¶ 6} When the family moved into the second, slightly bigger room, mother purchased a cardboard partition "to go in between [the girls'] space and our space just to try to keep somewhat of privacy * * *" and block a direct line of sight from the children's beds to the adults' bed. The child eventually put a hole in the partition. Mother also said that the child had a garbage bag on her mattress that mother could hear when the child got out of bed. Mother insisted that she and Kamer were very careful to conceal their sexual activity from the child and said, by way of example, that she heard the child get up one night while she and Kamer were having sex, and that she and Kamer stopped until the child went back to bed. However, she conceded that if she could hear the child, it was likely that the child could hear her and Kamer, and if the child were awake, she could have heard things that mother and Kamer said. Mother said that the child "[absolutely" did not see mother and Kamer having sex. On cross, though, she acknowledged that, when the child first disclosed the sexual abuse, the child said that "this is what mommy and daddy do" while pantomiming intercourse with naked dolls.
{¶ 7} Regarding the child's disclosure of the abuse, mother said that in August 2019, after Kamer was arrested on a parole violation and no longer lived at the motel, the child went to a family party with her maternal grandfather and step-grandmother. When mother picked up the child, grandfather and step-grandmother told mother that the child "came out about something that had happened to her[, ]" which was that "Gregory"-i.e., Kamer-"was touching her." She elaborated that the child did not want to discuss the allegations "too much" because she did not want to upset mother, but said that Kamer "was touching her down below and that he had put himself halfway inside of her." Mother said that the child referred to the touching as a "secret game" that she and Kamer played, and when Kamer called from jail that night, mother told him that the child After that, mother remembered "going off on Kamer.
{¶ 8} The day after the child's disclosure of the abuse, mother took her to the hospital for an examination. According to mother, someone was going to "open a case and look into all of it * * *" because the things that the child reported during the exam were "too alarming to having [sic] just seen anything."
{¶ 9} As a result of the child's disclosures, the LTPD and JFS opened investigations of the matter. Grieser, the JFS worker who conducted the forensic interview of the child, spoke with mother after the interview and showed mother the pictures that the child drew. At trial, the state presented the drawings as an exhibit. One of the drawings was a picture that the child said was Kamer's penis. Mother thought that the picture was significant because of the "lines that [the child] drew in it." Mother explained that Kamer is "un-circumcised and it looks like his penis has lines in it."
{¶ 10} Over Kamer's objection, the trial court allowed mother to testify to the specifics of the abuse that the child disclosed to mother. According to mother, the child reported that Kamer "put her in bed and let her watch his phone, told her to relax, and he did perform oral sex on her." Mother said that Kamer also used to tell mother to "'[r]elax, watch TV" when he would perform oral sex on her. Additionally, the child disclosed a time when Kamer "took her into the bathroom and white stuff came out of the tip of his penis-gooey white stuff."
{¶ 11} Mother went on to testify about the child's history of telling lies and making up stories. On direct, mother said that the child "would tell white lies-just like any five, six year old" about things like throwing away garbage or going to the bathroom before bed and that mother wanted the allegations of abuse "to be another one of them." A couple of days after taking the child to the hospital, mother was talking to the child and trying to get the child to The "he" the child referred to was Kamer. Although mother initially thought that the child was changing her story about the abuse, she eventually realized that the child was disclosing additional instances of abuse.
{¶ 12} The child's history of lying is what made mother initially disbelieve the child's disclosures about the sexual abuse. However, the child was in therapy, and mother had "not noticed any lies coming from [the child] lately." Mother said that when the child Despite mother's repeated questions, the child maintained that Kamer sexually abused her.
{¶ 13} On cross, mother was more direct in her answers about the child's history of lying, saying that the child "did lie a lot." Although mother claimed that she lied to Kamer when she told him that the child asked if she would go to jail if she were lying about her accusations, mother admitted to calling the child a "'fucking little liar[, ]'" saying that the child "'needs attention[, ]'" and flat-out saying " "
{¶ 14}...
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