[Cite as State v. Jackson,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-09-30

v.

ERIC A. JACKSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 07-CR-0199

Judgment Affirmed

Date of Decision: May 24, 2010

APPEARANCES:

Claire R. Cahoon for Appellant

David W. Phillips for Appellee Case No. 14-09-30

SHAW, J.

{¶1} The appellant, Eric A. Jackson, appeals the August 18, 2008

judgment of the Common Pleas Court of Union County, Ohio, finding him guilty

of two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), both

felonies of the third degree, one count of pandering sexually oriented matter

involving a minor in violation of R.C. 2907.322(A)(1), a felony of the second

degree, and one count of pandering obscenity involving a minor in violation of

R.C. 2907.321(A)(1), a felony of the second degree, and sentencing him to an

aggregate prison term of seventeen years.1

{¶2} The facts relevant to this appeal are as follows. On October 15,

2002, Jackson was arrested for the shooting of his mother.2 At the time of his

arrest, Jackson was in his vehicle. This vehicle was seized and impounded by the

Marysville Division of Police when Jackson was arrested. The vehicle was later

processed for evidence, and located inside the vehicle was a gray Craftsman

toolbox. Inside the toolbox, investigators found no tools. However, they found

handwritten notes to Jackson, two pairs of women’s underwear, two videotapes,

1 On August 20, 2009, Jackson filed a motion for leave to file a delayed appeal, which this Court granted on September 16, 2009. 2 Jackson’s mother died nine days after being shot. Jackson was indicted and subsequently convicted of aggravated murder with a three-year firearm specification and sentenced to an aggregate prison term of life with parole eligibility in twenty-three years. See State v. Jackson, 3rd Dist. No. 14-03-28,

, appeal not allowed by State v. Jackson,

,

,

; State v. Jackson, 3rd Dist. No. 14-09-24,

.

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and a photo album inside the toolbox. The album contained numerous

photographs, mostly of Jackson’s wife in sexual positions or states of undress.

The album also contained two photographs of Jackson’s daughter, who was eight

years old at the time of Jackson’s arrest, in a state of undress.

{¶3} Detective Douglas Ropp testified that he viewed the videotapes,

including what would eventually become State’s Exhibit 1. This videotape

appeared to be a homemade video. In one segment, Jackson and his daughter,

who was born on September 1, 1994, are depicted together in a bedroom. Det.

Ropp testified that he had been to Jackson’s home on Riverwind Drive in

Marysville, Ohio, which he occupied from April of 2001 until the date of his

arrest, and that the video segment of Jackson and his daughter was filmed in

Jackson’s bedroom in that home.

{¶4} This segment of the video showed Jackson’s daughter completely

nude, walking around the bedroom and sitting on the bed. Jackson, who is

wearing only shorts and underwear, has his daughter turn her back to the camera

and bend over. He then picks her up and turns her around with her legs spread

apart. Both positions enable the camera to capture a close-up image of his

daughter’s genitalia. After he puts her down, he removes his shorts, leaving him

dressed in only his thong underwear. Jackson then sits on the bed, facing the

camera, and has his daughter sit sideways on his lap. After patting the side of her

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buttocks, he places his entire hand on her left buttock and gropes it. Jackson then

turns his daughter on his lap to face towards the camera, lies down on the bed,

pulling her with him, and removes his underwear with her still on top of him. He

proceeds to return them to a seated position. During this time, Jackson’s exposed

penis has skin-to-skin contact with his daughter’s anal and vaginal area. Shortly

after this contact, his daughter gets up and Jackson re-dresses. This videotape was

later shown to Jackson’s wife, who confirmed that it was Jackson and their

daughter on the video and that the video was taken in the bedroom of their

Riverwind Drive home.

{¶5} After Jackson’s arrest for the shooting of his mother, Jackson and his

wife wrote letters to one another. At some point, Jackson’s wife wrote a letter to

Jackson, asking where the keys were to a footlocker her parents bought for her

when she was sixteen. Jackson sent a letter to his wife in response, which stated

that he last knew of the keys to the footlocker being in a safe. He then writes, “[i]f

nothing else use a fork to pick the lock.” The letter continues with Jackson asking

his wife to burn a blue disc, marked “Jams,” that is in the footlocker, stating “it

has pictures even you don’t want to see and the explanation sickens me anyway.”

Jackson also wrote in this letter that he did nothing sexual with their daughter, that

he was acting in a maternal way, and that he saw nothing wrong with their

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daughter being undressed with him but that he was wrong by being undressed with

her.

{¶6} Sometime after receiving this letter, Jackson’s wife found the blue

disc, marked “Jams,” inside the footlocker and looked at its contents. On this disc,

she found six photographs of her daughter in a bathtub wearing no clothing. The

JPEG file in which the photographs were saved showed a date of July 21, 2001.

The disc contained no other photographs.

{¶7} In all six of these photographs, some part of Jackson’s daughter’s

genitalia is exposed. In four of the photographs, the focus of the picture is on her

genitalia, and three of these photographs are close-up views of her vagina and/or

anus. After viewing the contents of the disc, Jackson’s wife realized that Jackson

had taken the photographs because she could see his arm and his watch. She then

gave the disc to law enforcement.

{¶8} On January 19, 2005, Detective Michael Justice of the Union County

Sheriff’s Office interviewed Jackson at Ross Correctional Institution, where

Jackson was incarcerated following his homicide conviction, regarding the

photographs that his wife found. Jackson stated that he did not remember taking

any nude photographs of his daughter and that he only asked his wife to destroy

items that depicted him with an ex-girlfriend. When told by Det. Justice that his

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daughter would have to be interviewed in order to determine who took the

photographs, Jackson repeatedly stated that the detective did not have to do that.

{¶9} On December 3, 2007, Jackson was indicted by the Union County

grand jury for two counts of gross sexual imposition in violation of R.C.

2907.05(A)(4), both felonies of the third degree, one count of pandering sexually

oriented matter involving a minor in violation of R.C. 2907.322(A)(1), a felony of

the second degree, and one count of pandering sexually oriented matter involving

a minor in violation of R.C. 2907.321(A)(1), also a felony of the second degree.

{¶10} Initially, Jackson entered pleas of not guilty on all four counts.

However, on February 12, 2008, he also entered written pleas of not guilty by

reason of insanity on all four counts. That same day, counsel for Jackson filed a

motion to determine Jackson’s competency to stand trial. A psychological

evaluation was subsequently ordered.3 On August 7, 2008, the State filed a

motion to amend count four of the indictment, stating that the Revised Code

section and elements provided were accurate but that the name of the charge

should be changed to pandering obscenity involving a minor. The trial court

granted this motion the following day.

{¶11} A jury trial was held in this matter on August 14-15, 2008. During

the trial, the State presented four witnesses, including Jackson’s wife, Det. Ropp,

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and Det. Justice. The State also presented the testimony of Dr. Mary Applegate, a

board certified internist and pediatrician, who viewed the videotape and

photographs in order to offer an opinion regarding Jackson’s daughter’s age at the

time each was created as well as the basis for her opinion. The State also

submitted a number of exhibits, including the videotape, the photographs, a

transcript of Det. Justice’s interview of Jackson, and the letter Jackson wrote to his

wife asking her to burn the blue disc.

{¶12} At the conclusion of the State’s case-in-chief, the defense presented

its case, which included the testimony of two witnesses: 1) Dr. Daniel Hrinko, the

forensic psychologist who evaluated Jackson to assess whether there was any

evidence that Jackson suffered from a mental illness, disease, or defect, and if so,

whether such condition resulted in an impairment in his ability to know the

wrongfulness of his actions at the time of the instant offenses; and 2) Jackson,

himself. The defense also submitted two exhibits, Dr. Hrinko’s curriculum vitae

and his written report of his evaluation of Jackson’s mental state at the time the

offenses were committed.

{¶13} Dr. Hrinko testified that the information presented to him, including

Jackson’s self-reporting, was consistent with a finding that Jackson did have a

3 This portion of the motion was later withdrawn in open court and counsel for Jackson requested that the psychological evaluation previously ordered be limited to determining those issues attendant to a not guilty by reason of insanity plea.

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serious mental disease that appeared to be consistent with a dissociative disorder,

commonly referred to as “multiple personality disorder.” However, Dr. Hrinko

also testified that there is a split in the psychology field about whether this is a

genuine disorder and that he, too, has his doubts about its legitimacy. Thus, he

testified: “in spite of my doubts and concerns about the validity and the power I

can give to a diagnosis such as dissociative disorder, I elected to make an

assumption that if this were a genuine disorder and if [Jackson] did in fact suffer

from this disorder, then I had to move to the next question, which was how did it

affect his behavior around the time of the crime.” Dr. Hrinko then concluded with

a reasonable degree of psychological certainty that Jackson was able to know the

wrongfulness of his actions at the time of the alleged offense and that there were

no indications to suggest that any other mental disease or defect interfered with his

ability to know the wrongfulness of his actions.

{¶14} Jackson testified as one of his personalities, a forty-year-old man

named “Phillip.” Jackson stated that “Phillip” has been in control of the physical

body, known as Eric Anthony Jackson, for the last three years. He also testified

the physical body has three “personalities” inside of it: Phillip, Eric, and Anthony,

who is ten-years-old.4 “Phillip” further testified that he first became aware of the

multiple personalities when “Eric” was four-years-old because “Phillip,” at the age

4 At some points, this personality is identified as a nine-year-old, including in Dr. Hrinko’s report of what Jackson told him, admitted as Defendant’s Exhibit B.

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of forty, was in control of a four-year-old’s body. “Phillip” also stated that he was

not aware of what the other personalities were doing when they were in control of

“the body” and that he only remembers what he does when he is in control of “the

body” and when he is talking to the other personalities. “Phillip” further testified

that he did not remember anything from the time he left employment with Honda

in 2000 until three days after he was arrested on October 15, 2002.

{¶15} In addition, he testified that “Anthony” was the one depicted in the

video with his daughter and that any actions “Anthony” engaged in were

experimental, as “Anthony” is only ten. However, he did acknowledge that the

adult in the videotape is “the body” he occupies. “Phillip” also stated that the

letters written to his wife, including the one asking her to burn the blue disc, were

written by “Eric,” not by “Phillip.” During his testimony, “Phillip” further

admitted that he did not mention his multiple personalities at any time prior to

speaking with Dr. Hrinko after being indicted for the instant offenses, including

when he spoke with another psychologist for his previous trial in 2003, when he

testified at that trial in 2003, when Det. Justice interviewed him in January of

2005, or at any point during his twenty-year relationship with his wife.

{¶16} At the conclusion of the trial, the jury returned verdicts of guilty on

all four counts. The trial court immediately proceeded to sentencing. The court

sentenced Jackson to five years of imprisonment on each of the first two counts

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and ordered that they be served consecutively to one another. The court also

merged the third and fourth counts, the State elected to have Jackson sentenced on

the third count, and the court sentenced Jackson to seven years in prison on that

count. This count was also ordered to be served consecutively to the first two

counts for an aggregate sentence of seventeen years. The trial court then ordered

that the aggregate sentence of seventeen years be served consecutively to

Jackson’s previous sentence in his aggravated murder case. Lastly, the trial court

informed Jackson of his classification as a Tier II sexual offender and of the

registration requirements associated with that classification.

{¶17} This appeal followed, and Jackson now asserts two assignments of

error.

ASSIGNMENT OF ERROR I

Mr. Jackson was denied a fair trial when the trial court admitted evidence of an unrelated prior conviction. Fifth and Fourteenth Amendments, United States Constitution; Section 16, Article I, Ohio Constitution. (Trial Transcript 8, 18, 23, 29, 61- 63, 100, 110-11, 124).

ASSIGNMENT OF ERROR II

Trial counsel provided ineffective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution when he failed to object to or attempt to exclude evidence of Mr. Jackson’s unrelated prior conviction. Strickland v. Washington (1984),

.

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First Assignment of Error

{¶18} In his first assignment of error, Jackson contends that the he was

denied a fair trial because evidence of his prior conviction was improperly

admitted. However, Jackson acknowledges that his trial counsel did not object to

the admission of this evidence during the trial and that, consequently, this Court is

limited to a review of this issue under the plain error standard. See State v. Jones,

,

,

; State v. Gordon (1971),

,

; Holman v. Grandview Hosp. & Med. Ctr.

(1987),

,

.

{¶19} In order to find plain error, there must be a deviation from a legal

rule, the error must be an “obvious” defect in the trial proceedings, and the error

must affect a defendant’s “substantial rights.” State v. Barnes,

,

,

. Reversal on plain error is to be used “with

the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage” of justice.

Thus, it is within these constructs that we

proceed to consider Jackson’s first assignment of error.

{¶20} Jackson cites to seven pages in the trial transcript during the State’s

case-in-chief that he maintains contain inadmissible evidence. Our review of these

pages reveals the following references to Jackson’s prior case:

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1) During the prosecutor’s opening statement he described the

contents of the videotape. After providing this description, the

prosecutor states:

Ladies and gentlemen, after that, the tape ends. You will learn that this tape was found when this detective was conducting another investigation. It was seized. They looked at the tape and discovered what was on that tape. The detective can tell you that in 2002 where [sic] they moved here in Marysville and when he was arrested on 10-15-2002, that girl was eight years old, maybe up to nine.

(Trial Trans., p. 8.) (emphasis added);

2) During the direct testimony of Det. Ropp, the following line of

questioning occurred regarding how Det. Ropp came into possession

of the videotape:

Q. And can you tell the jury, if you would, please, how you became involved in this investigation.

A. We were involved in an investigation of Mr. Jackson on his actions on 10-15-2002 here in the City of Marysville.

Q. Sir, when you became involved in this investigation, the, Mr. Jackson at that time, was he placed in custody?

A. He was.

Q. And was he found – where was he located?

A. He was located I believe just outside of the city limits by Deputy Lonnie Elmore in his motor – in his personal motor vehicle.

Q. And was that motor vehicle seized?

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A. Yes, it was.

(id. at pp. 18-19.) (emphasis added);

3) Later in Det. Ropp’s direct examination the following line of

questioning also occurred regarding where the videotape was filmed:

Q. Sir, had you been in that master bedroom at 156 Riverwind?

A. Yes, I have.

Q. And pursuant to how – what authority did you view that room?

A. Pursuant to a search warrant relating to the case involving Mr. Jackson on 10-15-02.

(id. at p. 23.) (emphasis added);

4) During the direct testimony of Jackson’s wife, the following line of

questioning occurred regarding the biological relationship between the

victim and Jackson:

Q. And your daughter is [the victim]?

A. Yes.

Q. How old – well, strike that. At the time that you were with Mr. Jackson, Mr. Jackson thought that he was [the victim’s] father.

A. Correct.

Q. It wasn’t until after his arrest that you told him that he was not; is that right?

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A. Right.

(id. at pp. 28-29.) (emphasis added); and

5) Lastly, during the direct testimony of Det. Justice, the

following line of questioning occurred regarding Jackson’s interview

with Det. Justice while he was in prison:

Q. Sir, I’m handing you what’s marked for identification purposes as State’s Exhibit 10. Can you identify that for the Court and the jury, please?

A. That is a transcript of the interview, which had [sic] recorded on a digital recorder at Ross Correctional with Eric Jackson.

***

Q. Sir, in this interview, did you – you were inquiring about the photographs, were you not?

A. Yes, sir.

Q. And generally speaking, what did Mr. Jackson tell you about the photographs that you were talking about?

A. Generally, I explained to him that if there’s not a confession or admission to him taking the photographs that his daughter would have to be interviewed as to who took the photographs, and he basically alluded that there’s no reason to interview her, if additional cases could be put together for another type of sentence that he was currently incarcerated in, and had other discussion. He brought up a couple different things about the videotape.

***

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Q. Sir, when you asked him about the photographs, he indicated he didn’t remember taking the photographs?

A. That is correct.

Q. Page 7, then, line 13 [referring to State’s Exhibit 10], what did he tell you his situation was at that time?

A. He stated “I was on enough pills at that time that I don’t remember taking the pills. I know I wasn’t like that with her. She doesn’t need to see the pictures. I’m doing enough time to where it is right now trying to get this other case straightened around.”

(id. at pp. 61-63.) (emphasis added).

{¶21} Jackson also asserts that once the State introduced this evidence,

then he mentioned his prior conviction during his testimony. This testimony

consisted of the following:

1) At the beginning of his direct testimony, Jackson stated that he

did not recall the period of his life from 2001-2002. In discussing

this, the following questioning occurred:

Q. Let’s back up. What was the first time – from today’s date backwards, what is the first date that you do recall?

A. First date that I remember is three days after being arrested for being accused of point blank shooting my mother.

Q. Was that around the same time as – as this supposed incident?

A. That was in October, and suggestibly [sic] this happened in either July or prior to July to January.

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(Trial Trans., p. 100.) (emphasis added);

2) During cross-examination by the prosecutor regarding whether

Jackson did not, in fact, recall the year 2001, his stated reason, both

at trial and to Dr. Hrinko, for leaving his employment with Honda,

and whether he previously revealed that he had multiple

personalities, the following line of questioning occurred:

Q. In fact, though, you gave testimony at a prior trial, did you not?

A. Yeah.

Q. And at that time you said you left because of back pain. Right?

A. I was let go because –

Q. I’m sorry, sir, I didn’t ask you about why you were let go. I asked you about your prior testimony. At that time you testified it was because of back pain, didn’t you?

A. Yes.

Q. And, sir, in your prior testimony, which was in a prior trial; is that right? You remember that?

A. Do you want to –

Q. I’m sorry, 2003, June 25th, 2003. Do you remember testifying?

A. No, I don’t.

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Q. So you don’t remember that during that testimony you said absolutely nothing [about] having multiple personalities, right? Sir, isn’t that right?

A. Yes, it is.

Q. And, in fact, you didn’t come up with this multiple personality idea until after you had already been on trial. Never said a word about it, did you, sir?

A. The blackouts and everything –

Q. I’m sorry, sir. You never said a word about multiple personalities, did you?

A. Because Eric didn’t want to get locked up in a mental institution.

Q. And, sir, you’re already locked up then, and then you talked to Detective Justice, didn’t you? Do you remember talking to Detective Justice on 1-19-2005?

A. Yes, I do.

Q. And at that time you never said anything about multiple personalities, did you, sir?

A. No, I didn’t.

Q. So when you testified before you said nothing about multiple personalities.

A. Uh-huh.

(id. at pp. 110-111.) (emphasis added); and

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3) In his redirect-examination, the following line of questioning

occurred regarding Jackson’s previous testimony and about the

blackouts that he maintained he experiences:

Q. Eric, Mr. Phillips has asked you a couple times regarding your testimony at your first trial. Why didn’t you bring up your multiple personalities at your first trial?

A. Because Eric didn’t want to be locked away in an insane asylum for the rest of his life.

Q. And in your first trial, who was there testifying?

A. That was Eric.

Q. Are you still experiencing blackouts?

A. Yes, I am.

Q. How often?

A. Not very often. For about the last three years I’ve had three blackouts for no more than two days at a time.

Q. Did you make anybody aware at the – at the prison of these blackouts?

A. No, I haven’t.

(id. at p. 124.) (emphasis added).

{¶22} Jackson maintains that evidence of his previous conviction was not

admissible for four reasons: 1) pursuant to Evid.R. 401 and 402, it was not

relevant; 2) pursuant to Evid.R. 403(A), even if relevant, its probative value was

substantially outweighed by the danger of unfair prejudice; 3) pursuant to Evid.R.

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404(B), this evidence of his prior bad acts, was not admitted for any permissible

purpose such as motive, opportunity, or intent; and 4) pursuant to Evid.R. 609(A),

it was not introduced to impeach him because it was introduced in the state’s case-

in-chief rather than during his testimony.

{¶23} With certain exceptions, “[a]ll relevant evidence is admissible.”

Evid.R. 402. However, “[e]vidence which is not relevant is not admissible.”

In defining what is relevant, Evid.R. 401(A) states: “‘Relevant evidence’ means

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.” The Ohio Supreme Court has repeatedly

held that “[t]he admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Trimble,

,

,

, citing State v. Sage (1987),

,

, paragraph two of the syllabus.

{¶24} Nevertheless, as previously noted, there are restrictions on the

admission of relevant evidence. Among these restrictions is evidence that has a

probative value that “is substantially outweighed by the danger of unfair prejudice,

of confusion of the issues, or of misleading the jury.” Evid.R. 403(A). Also,

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may,

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however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Evid.R. 404(B). Similarly, R.C. 2945.59 states:

In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

{¶25} The Ohio Supreme Court has discussed the underlying rationale for

the limited admissibility of other acts evidence as follows:

The admissibility of other acts evidence is carefully limited because of the substantial danger that the jury will convict the defendant solely because it assumes that the defendant has a propensity to commit criminal acts, or deserves punishment regardless of whether he or she committed the crime charged in the indictment. See State v. Curry (1975),

,

. This danger is particularly high when the other acts are very similar to the charged offense, or of an inflammatory nature[.]

State v. Schaim,

,

,

.

Furthermore, “evidence of prior convictions is prohibited except under narrow

circumstances.” Trimble,

, citing State v. Allen (1987),

,

. One such circumstance is for impeachment

purposes when a defendant testifies. Specifically, “evidence that the accused has

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been convicted of a crime is admissible if the crime was punishable by death or

imprisonment in excess of one year * * * and if the court determines that the

probative value of the evidence outweighs the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” Evid.R. 609(A)(2).

{¶26} Initially, we note that the State never attempted to impeach

Jackson’s credibility through the use of his prior conviction. Rather, the evidence

that is the subject of this appeal was largely introduced in the State’s case-in-chief.

Further, the evidence that was used to attempt to impeach Jackson was in the form

of questions during the cross-examination of Jackson about the testimony he gave

in his prior trial. Thus, Evid.R. 609 does not apply.

{¶27} We also note that the prosecution did not present any direct evidence

that Jackson had a prior conviction and/or the name of the crime for which

Jackson was convicted, i.e. aggravated murder with a firearm specification.

Moreover, the State did not ask Jackson any questions about his prior conviction.

Instead, as previously detailed, the majority of the evidence that is the subject of

this appeal involves statements about Jackson’s “arrest” on October 15, 2002, and

“another investigation” of Jackson relating to that arrest. However, Det. Justice’s

testimony included a statement that he interviewed Jackson at Ross Correctional (a

prison) and that Jackson talked about cases being put together for another type of

sentence than what he was currently incarcerated for and that he was “doing

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enough time” and needed to get his “other case straightened around.” This

information certainly implied that Jackson was in prison for some sort of crime,

i.e. that he had a prior conviction. Thus, we proceed to analyze this evidence with

an understanding of the substantial danger that evidence of a prior conviction

presents.

{¶28} In regards to the relevancy of the evidence to which Jackson now

objects, we note that the age of Jackson’s daughter at the time of the offenses was

an element in all four counts. More specifically, R.C. 2907.05(A)(4) requires that

the victim be under the age of thirteen, and R.C. 2907.321(A)(1) and R.C.

2907.322(A)(1) require that the victim be a minor, which is defined as a person

under the age of eighteen, see, R.C. 2907.01(M). Furthermore, the State also had

to prove the dates of these alleged offenses, all four of which were alleged to have

occurred between July 1, 2001, and October 14, 2002. Thus, the fact that Jackson

was arrested on October 15, 2002, that his vehicle was seized, and that the

videotape was discovered when the vehicle was processed for evidence were all

relevant to establish a time frame for the making of the videotape and to determine

his daughter’s age at that time, as the videotape was undated.

{¶29} The next question is whether this evidence, nevertheless, was

inadmissible as other acts evidence. We find that none of this evidence was

inextricably related to the crimes charged in the indictment. See State v. Lytle

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(1976),

,

, judgment vacated as to the

imposition of the death penalty based on the unconstitutionality of Ohio’s then-

death penalty scheme by Lytle v. Ohio (1978),

,

. To

the contrary, the State could have presented evidence that the tape was found by

law enforcement in Jackson’s vehicle along with Jackson, himself, as a result of an

unrelated investigation without reference to his “arrest” being made. Moreover,

evidence of his arrest served none of the purposes provided by Evid.R. 404(B) and

R.C. 2945.59 such as proof of motive, intent, scheme, or plan. Thus, this evidence

should not have been introduced.

{¶30} The State also had to prove that the offense occurred in Union

County. Therefore, Det. Ropp’s testimony that the video was filmed in Jackson’s

bedroom in his Marysville home and how Det. Ropp would have knowledge of

this (having been in the home) was also relevant. However, the jury only needed

to know that Det. Ropp was familiar with the bedroom because he had actually

been in that room in 2002. Although whether Det. Ropp was in Jackson’s home in

a lawful manner is a relevant inquiry, the fact that Det. Ropp was there pursuant to

a search warrant relating to the October 15, 2002 investigation of Jackson was

not relevant and should not have been introduced. Further, Det. Ropp’s testimony

that the portion of the videotape at issue was filmed in the bedroom was

corroborated by Jackson’s wife, who shared that bedroom with Jackson.

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Therefore, evidence of the search warrant was an unnecessary inclusion of

evidence related to other criminal acts.

{¶31} Also, Jackson’s attempts during his interview with Det. Justice to

keep Det. Justice from interviewing the victim so that she could possibly tell him

who photographed her in those positions was relevant for purposes such as

consciousness of guilt. Therefore, this information was relevant and was properly

introduced. However, the location of the interview and Jackson’s references to

serving time on another case were not relevant. In addition, that evidence could

have readily been redacted from the transcript of the interview and omitted from

Det. Justice’s testimony. Therefore, that evidence was not proper.

{¶32} As for the prosecutor’s cross-examination of Jackson regarding the

testimony he gave in his trial and how he failed to mention that he has multiple

personalities at that time, this evidence was also relevant to challenge Jackson’s

recent claim that he suffers from this disorder. Evidence Rule 607 permits a

witness’ credibility to be attacked, including by a prior inconsistent statement.

Although Jackson’s testimony in the case sub judice was not a direct contradiction

of his previous testimony, a failure to mention such a purportedly serious disorder

is highly relevant to the credibility of Jackson’s claim, particularly when Jackson

testified that he was suffering from this disorder at the time both the instant

offenses and the murder of his mother occurred.

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{¶33} This evidence was also relevant as to his claims that “Anthony”, the

ten-year-old, was experimenting rather than acting as one who would have

knowledge of the character of the material or performance portrayed in the

videotape and photographs, which is an element of both pandering charges, see

R.C. 2907.321(A)(1), 2907.322(A)(1), or engaged in the activity for the purpose

of sexual arousal or gratification, which is an element of gross sexual imposition,

see R.C. 2907.05(A)(4). Thus, the probative value of this evidence was not

substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury and was admissible.

{¶34} Turning to Jackson’s statements about his prior conviction during his

direct testimony, the State’s evidence did not necessitate him testifying in this

manner. To the contrary, Jackson’s attorney asked him what the first date that he

could recall was. Jackson chose to answer that question by responding, “three

days after being arrested for being accused of point blank shooting my mother.”

In light of the testimony in the State’s case-in-chief, Jackson could have limited

his response to the date being three days after his arrest or actually provided the

date of October 18, 2002. Accordingly, Jackson, himself, invited this error and

may not prevail on this particular issue on appeal. See State ex rel. Bitter v.

Missig,

,

,

.

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{¶35} Having determined that portions of the evidence now challenged by

Jackson should not have been admitted, we must next determine whether a

reversal of the jury’s verdicts is necessary to prevent a manifest miscarriage of

justice. We find that nothing in the record suggests that the jury used the improper

evidence to convict Jackson. Rather, the evidence previously discussed is

overwhelming against Jackson. Undeniably, Jackson created the video in which

he is seen having sexual contact with his daughter, who is quite clearly under the

age of thirteen. The date the video was seized is undisputed; Jackson’s daughter

was only eight-years-old on that date.

{¶36} The photos also had to have been taken before Jackson’s arrest, and

the JPEG file in which they were located shows a date of July 1, 2001, when his

daughter was six. Jackson’s wife recognized his arm and his watch in those

photographs, and she was not aware that these photographs were in existence until

Jackson specifically asked her to burn the disc labeled “Jams.” Not only did he

ask her to destroy that disc, but he informed her that the disc had pictures on it that

she did not want to see and that “the explanation sickens me anyway.” Notably,

this disc was in a footlocker belonging to his wife, yet Jackson was the one who

knew where the keys to it were, not her. In short, the videotape and photographs

speak for themselves.

-26- Case No. 14-09-30

{¶37} Moreover, Jackson’s attempt to be found not guilty by reason of

insanity further undermined his case. The psychologist who examined him

testified that dissociative disorder was questioned by half of the experts in the field

of psychology and then proceeded to opine with a reasonable degree of

psychological certainty that even if this were a legitimate disorder, that Jackson’s

representations to him were accurate, and that Jackson suffered from this disorder,

Jackson and all of his purported personalities were able to know the wrongfulness

of his (their) actions at the time of the offenses and there was no indication to

suggest that this disorder interfered with his (their) ability to know the

wrongfulness of those actions. Finally, Jackson’s own testimony that he never

told anyone that he suffered from multiple personalities despite being on trial for

the shooting of his mother also detracted from any credibility he may have had,

particularly when coupled with the testimony of his wife that they had been

together as a couple for approximately twenty years and that she had never

suspected he suffered from any mental condition.

{¶38} From the record in this case, we find no reasonable possibility that

the improperly admitted evidence might have contributed to Jackson’s conviction

or that a reversal is necessary to prevent a manifest miscarriage of justice.

Therefore, the first assignment of error is overruled.

Second Assignment of Error

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{¶39} In his second assignment of error, Jackson maintains that his trial

counsel was ineffective for failing to file a motion in limine or otherwise object to

the admission of the evidence at issue in the first assignment of error. Our review

of this issue begins by noting that attorneys licensed by the State of Ohio are

presumed to provide competent representation. State v. Hoffman (1998),

,

. An ineffective assistance of counsel claim

requires proof that trial counsel’s performance fell below objective standards of

reasonable representation and that the defendant was prejudiced as a result. State

v. Bradley (1989),

,

, paragraph two of the

syllabus. In reviewing such a claim, courts are to afford a high level of deference

to the performance of trial counsel.

,

. Also, in order to

show that a defendant has been prejudiced by counsel’s deficient performance, the

defendant must prove that there exists a reasonable probability that, but for

counsel’s errors, the outcome at trial would have been different.

at paragraph

three of the syllabus. “Reasonable probability” is a probability sufficient to

undermine confidence in the outcome of the trial.

,

.

{¶40} Given our discussion as to the first assignment of error and the

overwhelming evidence against Jackson, we need not determine whether counsel’s

performance fell below objective standards of reasonable representation, as no

reasonable probability exists that, but for, any perceived errors, the outcome at

-28- Case No. 14-09-30

trial would have been different. Accordingly, the second assignment of error is

overruled.

{¶41} For these reasons, the judgment of the Common Pleas Court of

Union County, Ohio, is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J., and ROGERS, J., concur.

/jlr

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