State v. Price

• Decision Date: 18 May 2018
• Docket Number: Case No. 17CA015
• Citation: 2018 Ohio 1988
• Parties: STATE OF OHIO Plaintiff-Appellee v. JEREMY W. PRICE Defendant-Appellant
• Court: Ohio Court of Appeals

2018 Ohio 1988

STATE OF OHIO Plaintiff-Appellee v. JEREMY W. PRICE Defendant-Appellant

Case No. 17CA015

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

May 18, 2018

JUDGES: Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County, Court of Common Pleas, Case No. 16CR077

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

SEAN WARNER

Holmes County Prosecutor's Office

164 East Jackson Street

Millersburg, OH 44654

For Defendant-Appellant

DAVID HUNTER

244 West Main Street

Loudonville, OH 44842

Gwin, J.,

{¶1} Appellant Jeremy W. Price ["Price"] appeals his conviction and sentence after a jury trial in the Holmes County Court of Common Pleas.

Facts and Procedural History

{¶2} On October 21, 2016, Price resided in Holmes County with his wife, Shelby Price, his stepdaughter, L.R. and children, M.P. and E. P. Price's nephew, Gus Price and his wife Alisha Kessler were living in the backyard in a tent at that time.

{¶3} Price and Gus came home from work and Shelby took Price, Gus and Alisha to the home of their boss, Andy O'Dell, to pick up their check and "hang out," while she returned home to watch six children.

{¶4} Sometime in the early morning of October 22, 2016, Alisha Kessler, after having been at Andy O'Dell's and having consumed alcohol, went to get a drink from Price's trailer. Upon entering the trailer, Alisha testified she saw Price's face between the legs of L.R. "licking her." T. at 137. After about "five minutes" of standing there watching, Alisha left to tell her husband Gus. Gus went to the trailer, looked in the window of the back door, and then went around to the front door and walked in the trailer. Gus testified he saw Price with Lilly on the couch with his face on her vagina. Price then "stood up and started playing with his penis trying to get it hard...." T. at 83. Gus enters the trailer, grabbed his child and walked out of the trailer.

{¶5} Neither Gus nor Alicia called the police to report what they observed. Instead they go to Holly Claypool's residence. Holly and her husband Nathan called Andy O'Dell. O'Dell', Dawn Colopy and Christopher Ross accompany Gus, Alicia, Holly and Nathan to Price's home. Holly Claypool calls the police.

{¶6} Holly Claypool testified that when Price was confronted about how he could do such a thing Price stated that he thought it was his wife. T. at 191. Holly further testified that L.R., in response to Price's statement that he would never hurt her, "interrupted him and was crying and said no daddy, you were messing with me and I kicked you off of me." T. at 190.

{¶7} The victim submitted to a SANE exam and a rape kit was submitted to BCI. BCI tests of L.R.'s vaginal samples tested presumptively positive for seminal fluid and no sperm were identified. T. at 305. "Presumptively positive" means that the test does not confirm the presence of seminal fluid it indicates seminal fluid may be present; there is no way to confirm that seminal fluid is present. T. at 306. Amylase, a component of saliva was found in L.R.'s underwear. T. at 309. However, there was not enough DNA present to identify anyone positively. T. at 321.

{¶8} The cutting from L.R.'s underwear indicated a mixture of more than one male with the major profile consistent with Price or any male coming from his father's side. T. at 334; 352. The amounts detected were .37 nanograms in the cutting and .31 nanograms in the swab. T. at 339. A "nanogram" is one billionth of a gram. T. at 339.

{¶9} The jury found Price guilty of one count of rape a felony of the first degree in violation of R.C. 2907.02(A)(1)(b) and R.C. 2907.02(B). The trial court sentenced Price to a term of ten years to life.

Assignments of Error

{¶10} Price raises three assignments of error:

{¶11} "I. THE TRIAL COURT ERRED IN PERMITTING CERTAIN EVIDENCE TO BE CONSIDERED BY THE JURY.

{¶12} "II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS UNDER CRIM. R 29(A) AT THE CLOSE OF THE STATE'S CASE.

{¶13} "III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL."

I.

{¶14} In his first assignment of error, Price argues that it was plain error to allow evidence of his prior conviction, his propensity toward violence when drinking and hearsay evidence during his jury trial

STANDARD OF APPELLATE REVIEW.

A. Plain error.

{¶15} Price agrees that our standard of review is plain error because he did not object at trial.

{¶16} Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or defects affecting substantial rights" notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show "an error, i.e., a deviation from a legal rule" that constitutes "an 'obvious' defect in the trial proceedings," State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶17} Even if the error is obvious, it must have affected substantial rights, and "[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." Id. The Ohio Supreme Court recently clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is "required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis sic.) Id. At ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, ___ Ohio St.3d ___, 2017-Ohio-8011, ___N.E.3d ___ (Oct. 4, 2017), ¶32-34.

{¶18} If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; the Supreme Court has "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" (Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas, ___ Ohio St.3d ___, 2017-Ohio-8011, ___N.E.3d ___ (Oct. 4, 2017), ¶32-34.

B. Admissibility of evidence.

{¶19} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). "Ordinarily, we review a trial court's hearsay rulings for an abuse of discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6^th Cir. 2010)." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

ISSUES FOR APPEAL

A. Whether the trial court abused its discretion by admitting evidence of Price's prior conviction.

B. Whether the trial court abused its discretion by admitting evidence of Price's character for violence when drinking.

{¶20} Evid.R. 404(A) provides that evidence of a person's character is not admissible to prove the person acted in conformity with that character. Evid.R. 404(B) sets forth an exception to the general rule against admitting evidence of a person's other bad acts. The Rule states as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

{¶21} In State v. Williams, 134 Ohio St.3d 521, 983 N.E.2d 1278, 2012-Ohio-5695, the Ohio Supreme Court stated that trial courts should conduct a three-step analysis when considering the issue of "other acts" evidence:

The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R. 403.

Id. at ¶ 20.

{¶22} Furthermore, "other acts" evidence is admissible only if there is substantial proof that the alleged other acts were committed by the defendant and such evidence tends to show one of the matters enumerated in Evid.R. 404(B). State v. Wagner, 5^th Dist. Licking 03 CA 82, 2004-Ohio-3941, ¶ 43, citing State v. Echols, 128 Ohio App.3d 677, 692, 716 N.E.2d 728 (1^st Dist. 1998). This Court has recognized that the Ohio Revised Code does not define "substantial proof" in this context. See State v. Burden, 5^th Dist. Stark No. 2012-CA-00074, 2013-Ohio-1628, ¶ 58. This Court also summarized as follows in State v. King, 5^th Dist. Richland No. 08-CA-335, 2010-Ohio-4844: "We * * * do not believe that the substantial proof requirement necessitates that independent evidence corroborate other acts testimony. Instead, we believe that the substantial proof requirement is satisfied if at least one witness who has direct knowledge of the other act can testify to the other act. The jury may then fulfill its duty and evaluate the witness's testimony and credibility. * * *." Id. at ¶ 45.

{¶23} In the case at bar, the state did not submit...