State v. Nichols

• Decision Date: 13 January 1993
• Docket Number: No. 485,485
• Citation: 85 Ohio App.3d 65,619 N.E.2d 80
• Parties: The STATE of Ohio, Appellee, v. NICHOLS, Appellant.
• Court: Ohio Court of Appeals

Page 65

85 Ohio App.3d 65

619 N.E.2d 80

The STATE of Ohio, Appellee, v. NICHOLS, Appellant.

No. 485.

Court of Appeals of Ohio, Fourth District, Pike County.

Decided Jan. 13, 1993.

Robert N. Rosenberger, Pike County Pros. Atty. and Charles R. Junk, Jr., Asst. Pros. Atty., Waverly, for appellee.

Charles H. Wilson, Jr., West Union, for appellant.

STEPHENSON, Presiding Judge.

This is an appeal from a judgment entered by the Pike County Court of Common Pleas, upon a jury verdict, finding Kurt Paul Nichols, defendant below and appellant herein, guilty of gross sexual imposition in violation of R.C. 2907.05(A)(4). ¹ The following errors are assigned for our review:

I. "The trial court erred to the prejudice of defendant when it overruled defendant's motion for a mistrial."

II. "The trial court erred to the prejudice of defendant when it refused to instruct the jury on the issue of credibility of a witness, her prior inconsistent statements and her impeachment."

III. "The trial court erred to the prejudice of defendant when it permitted the witness, Phyllis Amlin, to testify as to what the victim had demonstrated to her about the alleged sexual conduct between the victim and defendant."

IV. "The trial court erred to the prejudice of defendant when it sustained the objections of the prosecutor to questions asked by counsel for defendant relative to the motive of the victim in bringing the charge against defendant."

V. "The trial court committed error prejudicial to defendant in the admission into evidence over his objection of other acts by him."

VI. "The verdict and judgment below are against the manifest weight of the evidence."

The record reveals the following facts pertinent to this appeal. On May 19, 1991, Amy J. Jackson (d.o.b. July 14, 1979) (hereinafter referred to as "the minor child") was visiting a Ms. Susan Day, her paternal aunt, when she made certain allegations that she had been sexually abused by her stepfather, the appellant. The sheriff's department was, thereafter, notified and on June 28, 1991, appellant was indicted by the Pike County Grand Jury on one count of rape in violation of R.C. 2907.02(A)(1)(b). Appellant entered a plea of not guilty and the matter proceeded to a jury trial on January 7, 1992.

Although appellant was acquitted on the rape charge, he was found guilty of the lesser included offense of gross sexual imposition. ² Appellant was, thereafter, sentenced to a two-year definite term of incarceration at the Ohio State Reformatory. On January 14, 1992, appellant filed a motion for new trial arguing that the proceedings below had been tainted by prosecutorial misconduct and that the trial court had erred in (1) failing to grant a mistrial as a result of such misconduct, (2) allowing the state to present certain rebuttal evidence, and (3) failing to give jury instructions on prior inconsistent statements by witnesses. The trial court entered judgment overruling the motion on January 31, 1992, and this appeal followed. Additional facts will be discussed where necessary for resolving a particular assignment of error.

Appellant's first assignment of error is directed at references made by the prosecutor during closing argument concerning "the last [s]exual [c]onduct" between the parties. (Emphasis added.) Appellant objected to these statements and moved for a mistrial on the grounds that a reference to "last" sexual conduct tended to suggest that there had been multiple incidents of such conduct even though no such evidence had been introduced. The trial court overruled the motion, but gave the following cautionary instruction:

"JUDGE : * * * Ladies and gentlemen during the uh, the Prosecutor's argument, he used a phrase, 'Last Sexual Conduct.' I think he used it twice in making his argument. And to the extent that phrase implies or raises an implication of prior Sexual Conduct on behalf of the defendant, it is an improper statement and you are instructed to disregard that statement and any implication that uh, it may give rise to. There has been absolutely no evidence of any prior Sexual Conduct in this case * * * and you [are] instructed that you must disregard that statement or any implication that it may give rise to. You may continue your argument."

These instructions notwithstanding, appellant argues that he was denied a fair trial as a result of the prosecutor's comments and the lower court should have declared the proceedings a mistrial. We disagree. Initially, we note that the granting or denying of a motion for mistrial rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 182, 31 OBR 375, 382, 510 N.E.2d 343, 349. A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused are adversely affected and this determination is, again, in the discretion of the trial court. State v. Reynolds (1988), 49 Ohio App.3d 27, 33, 550 N.E.2d 490, 497. In order to demonstrate an abuse of discretion on these matters, a criminal appellant must be able to show that the trial court's decision was arbitrary, unreasonable or unconscionable. See State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715, 719; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898; State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 172, 404 N.E.2d 144, 148. We are not persuaded that such a showing has been made in the cause sub judice.

The state correctly argues that the sole offending conduct by the prosecutor was the inclusion of the word "last" in two separate places during closing argument. Although the use of this word was clearly improper under the circumstances of this case, it is less apparent that its use adversely affected a substantial right or deprived appellant of a fair trial. The trial court gave a cautionary instruction which mandated that the jury disregard the comments and that there was no evidence of any prior sexual contact between appellant and the minor child. For purposes of mistrial analysis, we note that there is a presumption as to the efficacy of curative instructions with respect to improper comments by witnesses, see State v. Warren (1990), 67 Ohio App.3d 789, 799, 588 N.E.2d 905, 912; see, also, State v. Zuern (1987), 32 Ohio St.3d 56, 61, 512 N.E.2d 585, 590, and there is no reason why such a presumption would not also apply to curative instructions given after improper prosecutorial comments. Appellant cites nothing in the record which would overcome this presumption and we can find nothing to that effect in our own review. It should also be noted that the prosecutor, upon resuming his closing argument, admitted to the jury that his reference to last sexual conduct had been a misstatement. Under these circumstances, we discern no abuse of discretion in the refusal to grant a mistrial and the first assignment of error is overruled. ³

We shall jointly consider the second and third assignments of error as they both revolve around inconsistent statements describing the alleged sexual assault. The minor child testified at trial that, when the incident occurred, appellant was situated behind her. The defense then had a taperecorded statement, by the minor child to the prosecutor, played for the benefit of the jury. During the taped statement, the minor child answered affirmatively in response to a question as to whether appellant had been in front of her at the time of the alleged incident. The state then called a rebuttal witness, Phyllis Amlin, caseworker for Pike County Children's Services, to recount the explanation that the minor child had given to her of the incident and, presumably, to resolve inconsistencies in the child's statements as to appellant's position during the alleged assault.

Appellant now argues on appeal that it is improper for a trial court to allow the rehabilitation of a prosecution witness with prior consistent statements given subsequent to any inconsistent statements with which that witness was previously impeached. As an abstract proposition of law, we agree. The introduction of hearsay evidence at trial is generally prohibited. See Evid.R. 802. ⁴ However, a declarant's prior consistent statements are excluded from the definition of "hearsay" and may be admitted into evidence at trial if (1) the declarant testifies at trial and is subject to cross-examination concerning the statement, (2) the statement is consistent with her prior testimony, and (3) it is offered to rebut an express or implied charge of recent fabrication. See Evid.R. 801(D)(1)(b).

The courts in Ohio have generally interpreted this rule as including only those prior consistent statements which were made before the prior inconsistent statements or before the existence of any motive to falsify testimony. See, e.g., State v. Mullins (1986), 34 Ohio App.3d 192, 196-197, 517 N.E.2d 945, 950-951; State v. Smith (1986), 34 Ohio App.3d 180, 191, 517 N.E.2d 933, 944; State v. Bock (1984), 16 Ohio App.3d 146, 148, 16 OBR 154, 155, 474 N.E.2d 1228, 1230. In applying this standard to the cause sub judice, we agree with appellant that any rehabilitative testimony given by Amlin does not escape classification as "hearsay" under Evid.R. 801(D)(1)(b). The transcript reveals that the inconsistent taperecorded statement by the minor child was given on September 20, 1991, whereas the interview with Amlin was conducted the following November. Thus, any consistent statements made to that witness occurred after, not before, the prior inconsistent statements used to impeach the child's testimony. The testimony of this witness could not be classified as "non-hearsay" under Evid.R. 801(D)(1)(b) and should have been excluded from evidence pursuant to Evid.R. 802. ⁵

We are, nevertheless, not persuaded that the error in allowing such testimony mandates a reversal of the judgment. To begin, it is not immediately apparent to us that...