State v. Pate, Appellate Case No. 28702
| Citation | 2021 Ohio 1838 |
| Docket Number | Appellate Case No. 28702 |
| Decision Date | 28 May 2021 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. SCOTT E. PATE Defendant-Appellant |
| Court | United States Court of Appeals (Ohio) |
2021 Ohio 1838
STATE OF OHIO Plaintiff-Appellee
v.
SCOTT E. PATE Defendant-Appellant
Appellate Case No. 28702
COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 28, 2021
Trial Court Case No. 2019-CR-1019
(Criminal Appeal from Common Pleas Court)
OPINION
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066 Attorney for Defendant-Appellant
WELBAUM, J.
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{¶ 1} Defendant-appellant, Scott E. Pate, appeals from his conviction in the Montgomery County Court of Common Pleas after a jury found him guilty of ten counts of rape of a minor less than ten years of age, nine counts of gross sexual imposition, four counts of unlawful sexual conduct with a minor, and two counts of disseminating matter harmful to juveniles. In support of his appeal, Pate argues that the trial court erred by overruling his motion to sever offenses that were joined pursuant to Evid.R. 8(A). Pate also argues that the trial court erred by admitting two of the victims' video-recorded forensic interviews into evidence under the hearsay exceptions in Evid.R. 803(4) and Evid.R. 807(A). Pate further argues that his convictions for ten counts of rape of a minor less than ten years of age were not supported by sufficient evidence and were against the manifest weight of the evidence. Lastly, Pate argues that the State engaged in prosecutorial misconduct at his trial and that the cumulative effect of all the errors at trial warrants a reversal of his conviction. For the reasons outlined below, we find that all of Pate's claims lack merit, and we will therefore affirm the judgment of the trial court.
{¶ 2} On May 1, 2019, a Montgomery County grand jury returned a 26-count indictment charging Pate with ten counts of rape of a minor less than ten years of age in violation of R.C. 2907.02(A)(1)(b); ten counts of gross sexual imposition (GSI) in violation of R.C. 2907.05(A)(4), four counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), and two counts of disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1). Each of the rape and gross sexual imposition counts included a sexually violent predator specification under R.C. 2941.148(A).
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{¶ 3} The charges stemmed from allegations that Pate sexually abused four minors, A.A.1, A.A.2, A.A.3, and E.K. The indictment alleged that the sexual abuse of A.A.1, A.A.2, and A.A.3 occurred between March 1, 2016 and March 16, 2019. At the time the abuse was disclosed, A.A.1 was seven years old, A.A.2 was five years old, and A.A.3 was three years old. The indictment alleged that the sexual abuse of E.K. occurred between January 1, 2004 and April 24, 2004. E.K. was 13 years old at the time of the alleged abuse. The following table sets forth the charges pertaining to each of the four victims.
| Count | Victim | Offense | Allegation |
| 1 | A.A.1 | Rape | Digital-vaginal penetration in back room of Pate's residence |
| 2 | A.A.1 | GSI | Digital-vaginal contact in back room of Pate's residence (same incident as Count 1) |
| 3 | A.A.1 | Rape | Digital-vaginal penetration in front room of Pate's residence |
| 4 | A.A.1 | GSI | Digital-vaginal contact in front room of Pate's residence (same incident as Count 3) |
| 5 | A.A.1 | Rape | Cunnilingus in back room of Pate's residence |
| 6 | A.A.1 | Rape | Cunnilingus in Pate's vehicle |
| 7 | A.A.1 | Rape | Cunnilingus in front room of Pate's residence |
| 8 | A.A.1 | Rape | Fellatio in front room of Pate's residence |
| 9 | A.A.1 | GSI | Penile-vaginal contact in front room of Pate's residence |
| 10 | A.A.1 | GSI | Vaginal touching in Pate's vehicle |
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| 11 | A.A.1 | GSI | Penile touching at Pate's residence |
| 12 | A.A.1 | GSI | Penile touching at Pate's residence |
| 13 | A.A.1 | GSI | Vaginal touching with an object in back room of Pate's residence |
| 14 | A.A.1 | Disseminating | Pornographic videos shown at Pate's residence |
| 15 | A.A.2 | Rape | Cunnilingus in front room of Pate's residence |
| 16 | A.A.2 | Rape | Cunnilingus in back room of Pate's residence |
| 17 | A.A.2 | Rape | Fellatio at Pate's residence |
| 18 | A.A.2 | Rape | Fellatio at Pate's residence |
| 19 | A.A.2 | GSI | Vaginal touching in front room of Pate's residence |
| 20 | A.A.2 | GSI | Vaginal touching in Pate's residence |
| 21 | A.A.2 | Disseminating | Pornographic videos shown at Pate's residence |
| 22 | A.A.3 | GSI | Digital-vaginal contact at Pate's residence |
| 23 | E.K. | Unlawful Sexual Conduct | Digital penetration |
| 24 | E.K. | Unlawful Sexual Conduct | Vaginal intercourse |
| 25 | E.K. | Unlawful Sexual Conduct | Fellatio |
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| 26 | E.K. | Unlawful Sexual Conduct | Cunnilingus |
{¶ 4} Pate pled not guilty to the indicted charges and the matter ultimately proceeded to a jury trial on the 26 charges set forth above. Pate, however, elected to have a bench trial on the sexually violent predator specifications. Prior to those proceedings, the trial court conducted a voir dire examination to determine whether A.A.1 and A.A.2 were competent to testify at trial. Following this examination, the trial court determined that A.A.1, who was then eight years old, was competent to testify. The trial court determined, however, that A.A.2, who was then six years old, was not competent to testify. Having found that A.A.2 was not competent to testify at trial, and following an evidentiary hearing, the trial court determined that statements A.A.2 had made to her mother and to a forensic interviewer about the abuse were admissible hearsay under Evid.R. 807(A).
{¶ 5} Prior to trial, Pate filed a Crim.R. 14 motion to sever the charges related to A.A.1, A.A.2, and A.A.3 from the charges related to E.K. so that they could be tried separately. Although Pate conceded that all the charges were properly joined pursuant to Crim.R. 8(A), he argued that the 12 to 15-year lapse in time between the charges would cause the jury to have an unfavorable impression of him and would prejudice him at trial. Pate also argued that the allegations related to E.K. and the allegations related to A.A.1, A.A.2, and A.A.3 were so dissimilar that joinder served no valid evidentiary purpose. Pate further argued that the requested severance was appropriate because the evidence supporting the joined offenses would not be admissible at separate trials as other-acts
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evidence under Evid.R. 404(B).
{¶ 6} The trial court disagreed with Pate and denied his motion to sever. In doing so, the trial court found that the evidence supporting the joined offenses was: (1) relevant; (2) admissible at separate trials as other-acts evidence under Evid.R. 404(B); and (3) had a probative value that outweighed the danger of unfair prejudice. The trial court further found that the charges and evidence were separate and distinct and that there was only a "scant likelihood of jury confusion." Order Denying Motion to Sever (Sep. 30, 2019).
{¶ 7} The State called several witnesses at Pate's jury trial. The witnesses included A.A.1; E.K.; the mother of A.A.1, A.A.2, and A.A.3; the law enforcement officers and experts who investigated the allegations of sexual abuse; and the medical and mental health service providers who examined and treated A.A.1 and A.A.2. Pate also called four relatives as defense witnesses. Pate called his wife, April Pate; his 19-year-old daughter, Belinda Pate; his 23-year-old son, Jonathan Pate; and his 25-year-old stepson, Ty Shyers. The following information was elicited at trial through the witnesses' testimony and other evidence.
{¶ 8} Pate's wife, April, was close friends with the maternal grandmother of A.A.1, A.A.2, and A.A.3. When the maternal grandmother passed away in 2012, April became very close to A.A.1, A.A.2 and A.A.3's mother ("Mother"). April and Mother became so close that April was present in the delivery room when A.A.2 and A.A.3 were born. Mother and her family spent a lot of time at the Pates' residence for cookouts, birthday celebrations, and holiday gatherings. Over time, April stepped into the role as
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grandmother to A.A.1, A.A.2, and A.A.3. The three girls referred to April as "Mammaw" and to Pate as "Pawpaw."
{¶ 9} Beginning in 2016, April and Pate would babysit A.A.1, A.A.2, and A.A.3 free of charge. At 2:45 p.m. on Monday through Friday, Mother would drop off the three girls at the Pates' residence in Miamisburg, Montgomery County, Ohio. The girls would stay at the Pates' residence until their father ("Father") picked them up sometime between 5 p.m. and 8 p.m. Pate, who was unemployed, was oftentimes the only person at home when Mother dropped off the girls, and he would often babysit the girls when no one else was at home. Pate also regularly picked up A.A.1 from elementary school during the school year.
{¶ 10} In addition to babysitting, the Pates allowed A.A.1 and A.A.2 to each spend one night of the week at their residence. A.A.1 and A.A.2 would rarely spend the night at the same time. A.A.3, who was still very young, never spent the night with the Pates. When A.A.1 or A.A.2 would spend the night, the child would either sleep in the bedroom belonging to Pate's daughter, Belinda, or on the couch in the living room.
{¶ 11} On Saturday March 16, 2019, Mother was at home with A.A.1, A.A.2, and A.A.3 while Father was out getting maintenance performed on their vehicle. As Mother was finishing cleaning her bedroom, five-year-old A.A.2 came into the room and looked at a license plate hanging on their wall that had a silhouette of a naked woman on it. A.A.2 pointed to silhouette and...
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