[Cite as State v. Shook,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-14-01

v.

JOHN TIMOTHY SHOOK, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR13-03-0057

Judgment Affirmed

Date of Decision: September 15, 2014

APPEARANCES:

Andrew T. Sanderson for Appellant

Eric C. Stewart for Appellee Case No. 8-14-01

SHAW, J.

{¶1} Defendant-appellant John Timothy Shook (“Shook”) appeals the

December 11, 2013 judgment of the Logan County Common Pleas Court

sentencing Shook to an aggregate prison term of 7.5 years after Shook was

convicted in a jury trial of six counts of Sexual Battery in violation of R.C.

2907.03(A)(7), all felonies of the third degree, five counts of Gross Sexual

imposition in violation of R.C. 2907.05(A)(1), all felonies of the fourth degree,

and one count of Attempted Sexual Battery in violation of R.C. 2923.02 and R.C.

2907.05(A)(7), a felony of the fourth degree.

{¶2} The facts relevant to this appeal are as follows. On March 12, 2013,

Shook was indicted for various sexual crimes alleging that Shook, who was the

band and choir teacher at Riverside school in Logan County, engaged in sexual

contact with three of his high school students. (Doc. 2). During the proceedings

the indictment was amended twice. (Doc. 18); (Doc. 52). Shook was ultimately

charged with thirteen total counts allegedly perpetrated against three separate

victims: six counts of Sexual Battery against victim E.P. in violation of R.C.

2907.03(A)(7), all felonies of the third degree, three counts of Gross Sexual

Imposition of victim L.K. in violation of R.C. 2907.05(A)(1), all felonies of the

fourth degree, Attempted Sexual Battery against victim L.K. in violation of R.C.

2923.02 and R.C. 2907.03(A)(7), a felony of the fourth degree, two counts of

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Gross Sexual Imposition against victim K.W. in violation of R.C. 2907.05(A)(1),

both felonies of the fourth degree, and one count of Attempted Sexual Battery

against victim K.W. in violation of R.C. 2923.02 and R.C. 2907.03(A)(7), a felony

of the fourth degree. (Doc. 52). Shook pled not guilty to the charges against him.

{¶3} On July 18, 2013, Shook filed a motion in limine to exclude “prior

bad acts” evidence. (Doc. 36). In the memorandum in support, Shook argued that

he anticipated the State would offer the testimony of students he previously taught

at another school and that those students would testify that Shook engaged in

sexual acts with them. (Id.) Shook argued that such evidence would be unfairly

prejudicial and was impermissible under Evid.R. 404(B).

{¶4} On July 29, 2013, the State filed a response to Shook’s motion in

limine, contending that under the Ohio Supreme Court’s decision in State v.

Williams,

(2012), 404(B) evidence could be introduced in

sexual abuse cases where it is relevant and probative if used to prove the

defendant’s plan, motive, intent, or preparation. The State argued that the

testimony of the students from Shook’s previous school would be offered for just

such a purpose. (Doc. 39).

{¶5} On September 19, 2013, the trial court filed a journal entry denying

Shook’s motion in limine, citing Williams, and this Court’s decision in State v.

Bump, 3d Dist. Logan No. 8-12-04,

. (Doc. 50). The trial court

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indicated that it would specifically instruct the jury that it could not consider the

testimony of Shook’s prior students to show that Shook acted in conformity with

these prior acts. (Id.)

{¶6} On October 14, 2013, Shook filed a “Motion to Sever the Indictment.”

(Doc. 90). Shook contended that although the charges were all similar in character

as sex offenses, the charges related to victims L.K. and K.W. required the state to

prove that Shook acted “with the purpose of sexual gratification,” making the

charges substantially different from the Sexual Battery charges related to victim

E.P. (Id.) On October 22, 2013, the State filed a response, contending that the law

favored joinder, and that the evidence related to each victim was simple and direct.

(Doc. 123).

{¶7} On October 24, 2013, the trial court filed a journal entry denying

Shook’s motion to sever the indictment. (Doc. 133). The trial court reasoned that

first, the testimony of the victims would be admissible in the other victims’ trials,

and second that the evidence was simple and direct such that the jurors should not

be confused. (Id.)

{¶8} The case subsequently proceeded to a jury trial, which was held from

October 29 to November 1, 2013. At trial the State called 14 witnesses including

the three victims. The first victim, E.P., testified that she was a student in Shook’s

band and choir classes, that she was a member of Shook’s marching band, that she

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was a “band aide” for Shook her freshman year of high school, that she

occasionally babysat Shook’s children, and that she kept the book for Shook’s

junior high basketball team. (Tr. at 186-194). E.P. testified that Shook first

showed an interest in her in his office, where he called her over and told her to sit

on his lap and read an email. (Tr. at 195-197). E.P. testified while she was on

Shook’s lap, Shook began touching her legs and vagina. (Tr. at 197-198). E.P.

testified that she was 16 at the time, and that Shook told her she could not tell

anyone about the incident. (Tr. at 201).

{¶9} E.P. then testified to a series of incidents where she engaged in sexual

acts with Shook, including losing her virginity to Shook, other incidents of vaginal

sex, oral sex to both parties, and anal sex that occurred from December of 2011

through January of 2013.1 E.P. testified to incidents that occurred in various

locations around Riverside school, and at Shook’s home. E.P. was able to

specifically identify dates and locations through dated entries in her journals,

which were introduced into evidence at the trial.

{¶10} The second victim to testify at trial, L.K., testified that she had

wanted to learn clarinet to join marching band so Shook began giving her lessons

in his office at the school in the summer of 2012. (Tr. at 350). L.K. testified that

after her second lesson with Shook he called her over to the computer, put his arm

1 As Shook does not contest the sufficiency or weight of the evidence for any of his convictions, we find it unnecessary to recite the details of each separate instance of sexual activity.

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around her and then “touched [her] butt.” (Tr. at 353). L.K. testified that she was

told not to tell anyone, and that she did not tell her parents or other adults because

everyone “loved” Shook. (Tr. at 355). L.K. testified that during the next lesson

Shook touched her butt and her breasts. (Tr. at 354). She testified that she tried to

pull away but she could not because Shook was “stronger.” (Id.) L. K. testified

that the same thing happened again at the next lesson, with Shook touching her

butt and her breasts. (Tr. at 355). L.K. testified the lesson after that she was

wearing spandex because she had volleyball practice. L.K. testified that Shook

put his hand down her spandex and touched her “bare vagina.” (Tr. at 357). L.K.

testified that shortly after that final incident she stopped going to private lessons

with Shook and quit marching band. (Tr. at 358).

{¶11} The third victim to testify at trial, K.W., testified that she was also a

member of the band and in Shook’s choir class. K.W. testified that Shook gave

her a ride home from the school on multiple occasions. K.W. testified that on one

of the rides home, Shook touched her leg and she was uncomfortable and scooted

away. (Tr. at 388). K.W. testified that on another ride Shook touched her leg

again but up higher. (Tr. at 389). K.W. also testified to an incident that happened

in Shook’s office where Shook spanked her with his bare hand, grabbed her

“boob” and “squeezed her nipple.” (Tr. at 394). K.W. testified that Shook told

her not to tell anyone because he would get fired if she did. (Tr. at 395).

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{¶12} After the State rested its case, Shook called ten witnesses and also

took the stand himself to deny that he ever had sex with E.P. and to deny that he

touched L.K. or K.W. inappropriately.

{¶13} Following closing arguments and jury instructions,2 the case was

submitted to the jury. The jury returned guilty verdicts on twelve of the thirteen

indicted counts, acquitting Shook of the Attempted Sexual Battery of K.W. He

was otherwise found guilty of six counts of Sexual Battery against E.P. in

violation of R.C. 2907.03(A)(7), all felonies of the third degree, three counts of

Gross Sexual Imposition of victim L.K. in violation of R.C. 2907.05(A)(1), all

felonies of the fourth degree, Attempted Sexual Battery against L.K. in violation

of R.C. 2923.02 and R.C. 2907.03(A)(7), a felony of the fourth degree, and two

counts of Gross Sexual Imposition against K.W. in violation of R.C.

2907.05(A)(1), both felonies of the fourth degree.

{¶14} On December 9, 2013 a sentencing hearing was held. At the hearing

Shook had several people speak on his behalf pleading for leniency, and he made a

statement himself. The prosecutor then made a statement and argued for

maximum consecutive sentences for a 39 year prison term. Members of the

victims’ families also made statements. After hearing the arguments of the parties

2 At the request of the defense, the jury was also instructed as to the lesser included offenses of Sexual Imposition on the Gross Sexual Imposition charges.

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the court sentenced Shook to serve an aggregate prison term of 7.5 years.3 A

judgment entry memorializing this sentence was filed December 11, 2013. (Doc.

163).

{¶15} It is from this judgment that Shook appeals, asserting the following

assignments of error for our review.

ASSIGNMENT OF ERROR 1 THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE REQUEST OF THE DEFENDANT- APPELLANT TO SEVER THE COUNTS OF THE INDICTMENT BELOW.

ASSIGNMENT OF ERROR 2 THE TRIAL COURT COMMITTED HARMFUL ERROR IN ADMITTING CERTAIN EVIDENCE OF “PRIOR BAD ACTS” IN THE TRIAL OF THE INSTANT CASE.

ASSIGNMENT OF ERROR 3 THE TRIAL COURT COMMITTED HARMFUL ERROR IN PRECLUDING THE DEFENDANT-APPELLANT FROM INTRODUCING EXCULPATORY EVIDENCE IN THE TRIAL OF THE INSTANT CASE.

First Assignment of Error

{¶16} In Shook’s first assignment of error, he argues that the trial court

erred by overruling his motion to sever the indictment. Specifically, Shook

contends that the crimes against the various victims vary temporally, and that the

3 Shook was ordered to serve 5 years in prison on each of the Sexual Battery convictions against E.P., which would run concurrent to each other. Shook was ordered to serve 15 months in prison on each of the four convictions related to L.K., which would run concurrent to each other but consecutive to the five year Sexual Battery term. Shook was ordered to serve 15 months in prison for the Gross Sexual Imposition convictions against K.W., which would run concurrent to each other but consecutive to the other prison sentences, creating the aggregate prison term of 7.5 years.

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crimes against victims L.K. and K.W. were dissimilar to those against victim E.P.

because the State had to prove the extra element of “with purpose of sexual

gratification” for L.K. and K.W.4

{¶17} The joinder of offenses is governed by Crim.R. 8(A) which provides:

Two or more offenses may be charged in the same indictment * * * if the offenses charged * * * are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.

{¶18} “ ‘It is well-established that the law favors joinder because the

avoidance of multiple trials conserves time and expense and minimizes the

potentially incongruous outcomes that can result from successive trials before

different juries.’ ” State v. Howard, 2d Dist. Greene No.2012–CA–39, 2013–

Ohio–2343, ¶ 35, quoting State v. Glass, 2d Dist. Greene No.2000–CA–74,

, *2 (Mar. 9, 2001), citing State v. Schiebel,

, 86–87

(1990).

{¶19} A defendant can move to sever joined offenses pursuant to

Crim.R.14, which states that, “If it appears that a defendant * * * is prejudiced by

a joinder of offenses * * * the court shall order an election or separate trial of

4 Shook states in his argument that “with purpose of sexual gratification” is an element of Gross Sexual Imposition. It is actually part of the definition of sexual contact, which is an element of Gross Sexual Imposition. Pursuant to R.C. 2907.01(B), “ ‘Sexual contact’ means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.” (Emphasis added.)

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counts, grant a severance of defendants or provide such other relief as justice

requires.”

{¶20} “The defendant claiming error in the trial court's refusal to sever

multiple charges has the burden of affirmatively showing that his rights were

prejudiced.” (Citations omitted.) State v. Skatzes, 2d Dist. Montgomery No.

15848, 2003–Ohio–516, ¶ 147. “To affirmatively show that his rights have been

prejudiced, the defendant ‘must furnish the trial court with sufficient information

so that it can weigh the considerations favoring joinder against the defendant's

right to a fair trial, and [the defendant] must demonstrate that the court abused its

discretion in refusing to separate the charges for trial.’ ” Glass, supra, at *3–4,

quoting State v. Lott,

(1990). (Other citation omitted.)

{¶21} “When a defendant claims that he was prejudiced by the joinder of

multiple offenses, a court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed, and (2) if not, whether the

evidence of each crime is simple and distinct.” State v. Schaim,

(1992); State v. Thomas, 3d Dist. Allen No. 1–11–25, 2012–Ohio–5577, ¶ 21.

If the evidence of other crimes would be admissible at separate trials, any “

‘prejudice that might result from the jury's hearing the evidence of the other crime

in a joint trial would be no different from that possible in separate trials,’ and a

court need not inquire further.” Schaim, quoting Drew v. United States, 331 F.2d

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85, 90 (1964). Moreover, “a defendant is not prejudiced by joinder where the

joined offenses are ‘simple and direct, so that a jury is capable of segregating the

proof required for each offense.’ ” State v. Wilson, 2d Dist. Montgomery No.

20910, 2005–Ohio–6666, ¶ 38, quoting State v. Fletcher, 2d Dist. Clark No.2003–

CA–62, 2004–Ohio–4517, ¶ 41.

{¶22} We review a trial court’s decision on joinder of offenses for trial

under an abuse of discretion standard. State v. Stober, 3d Dist. Putnam No. 12-13-

09,

. “The term ‘abuse of discretion’ connotes more than a

mere error in law or judgment; it implies that the court's attitude was unreasonable,

arbitrary or unconscionable.” State v. Adams,

(1980).

{¶23} In this case, prior to the trial, Shook filed a motion to sever the

indictment, which was denied by the trial court. The trial court reasoned that the

testimony of the victims would be admissible in each other’s trials and that the

testimony was simple and direct such that it should not confuse the jury. The trial

court thus found that both of the factors that the Ohio Supreme Court stated in

Schaim were present in this case, supporting joinder, even though the trial court

only needed to find one factor or the other. Shook renewed his motion to sever the

indictment at the beginning of the trial and it was again denied by the trial court,

for the same reasons it had stated previously.

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{¶24} Despite Shook’s arguments that the charges were dissimilar and

varied temporally, the evidence presented at trial suggests that many of the

charges were similar and that they occurred during the same time frame. Shook

was charged with Sexual Battery of E.P. and Attempted Sexual Battery of both

L.K. and K.W., indicating a direct similarity between charged offenses against all

three victims. The remaining charges were all Gross Sexual Impositions, which

were also sexually-related crimes.

{¶25} Shook’s claim that the crimes varied temporally is not necessarily

supported by the record either. The testimony at trial indicated that all of the

sexual crimes took place between December of 2011 and January of 2013. The

Sexual Batteries against E.P. allegedly took place over that entire span, while the

crimes against L.K. and K.W. both allegedly took place in the summer of 2012,

specifically July and August. Thus all of the crimes were of a similar nature and

were within the same time frame.

{¶26} The crimes were also similar in that they were all perpetrated against

similarly aged victims who were all students in Shook’s classes. In addition, all

three victims testified to incidents that took place at the school, specifically in

Shook’s band room or his office. Thus Shook’s arguments that the crimes were

dissimilar have no merit.

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{¶27} We addressed a similar argument to Shook’s in State v. Stober, 3d

Dist. Putnam No. 12-13-09,

, and found that the testimony of

multiple victims of a teacher who was having sexual contact with students could

have been admissible in each other’s trials under Evid.R. 404(B) “to show motive,

intent, plan, or scheme.” Stober at ¶ 102. On this basis, we found that the trial

court did not abuse its discretion in denying the defendant’s motion to sever. A

similar holding is appropriate here where under 404(B) the State could have

introduced the testimony in each separate trial to show a plan or scheme.5

{¶28} Nevertheless, while the trial court needed only to find that either the

testimony would be admissible in separate trials or that the testimony was simple

and direct, the trial court found both in this case. The result of the trial seems to

suggest that the testimony was simple and direct as the jury acquitted Shook on

one of the counts against victim K.W., indicating that the jury was able to clearly

follow and understand the testimony. There is no indication in the record that the

testimony was anything but simple and direct and Shook has not pointed us to

anything to establish otherwise.

{¶29} Accordingly as it is Shook’s burden on appeal to establish

affirmatively that the trial court erred in denying his motion to sever the

5 In addition, we would note that Shook’s argument that there was an additional element to be proven in the case of L.K. and K.W. similarly fails, as while “for the purpose of sexual gratification” is not explicitly stated in the Sexual Battery statute, having intercourse with a student carries an obvious implication of sexual gratification.

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indictment, that he was prejudiced by the denial of his motion and he has not done

so, we cannot find the trial court abused its discretion. Therefore his first

assignment of error is overruled.

Second Assignment of Error

{¶30} In his second assignment of error, Shook argues that the trial court

erred in permitting the State to present the testimony of three witnesses from

Covington, a school Shook taught at previously. Specifically Shook contends that

the testimony of these witnesses constituted prior “bad acts” testimony and was

impermissible under 404(B), that the students’ testimony was irrelevant, and that it

was far more prejudicial than probative.

{¶31} Evid.R. 404(B) reads as follows.

Evidence 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, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. * * *

{¶32} “Generally, the prosecution in a criminal case may not present

evidence that the defendant has committed other crimes or acts independent of the

crime for which the defendant is being tried to establish that the defendant acted in

conformity with his bad character.” State v. Thomas, 1st Dist. Hamilton No.

C120561, 2013–Ohio–5386, ¶ 20, citing Evid.R. 404(B); State v. Brown, 1st Dist.

Hamilton No. C–120327, 2013–Ohio–2720, ¶ 26. However, Evid.R. 404(B)

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provides that other bad acts are admissible to show “motive, opportunity, intent,

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

Shedrick,

(1991); Brown at ¶ 26. This list is nonexclusive.

State v. Morris,

, 2012–Ohio–2407, ¶ 18.

{¶33} The Ohio Supreme Court held in State v. Williams,

, 2012–Ohio–5695, that the admission of other acts evidence is a three-

step process. Williams, at ¶ 22; State v. Guerra, 9th Dist. Lorain No. 12CA010188,

2013–Ohio–5367, ¶ 17.

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.

.

{¶34} “Evidentiary rulings at trial are reviewed on appeal for an abuse of

discretion.” State v. Altman, 7th Dist. Columbiana No.

, 2013–Ohio-

5883, ¶ 22, citing State v. Beshara, 7th Dist. Mahoning No. 07 MA 37, 2009–

Ohio–6529, ¶ 55, citing State v. Bey,

(1999).

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{¶35} In this case Shook specifically objects to the testimony of J.H., T.C.,

and C.B. who were all students at Covington while Shook taught there from 2001

to 2005. At trial J.H. testified that when he heard of Shook’s indictment he called

the authorities to report an incident he witnessed in the band room at Covington

where Shook was kissing one of J.H.’s fellow students, T.C. (Tr. at 435). T.C.

testified that the kiss did take place, that it was mostly mutual, and that she later

had sex with Shook at his house one time. (Tr. at 449).

{¶36} C.B. testified that when she was 17 and a student of Shook’s at

Covington she also had sex with Shook once during school. (Tr. at 460). C.B.

and T.C. both testified that Shook flirted with his students. (Tr. at 448, 461). All

three of these students were members of Shook’s band at Covington.

{¶37} On appeal Shook argues that the Covington witnesses’ testimony

was not material, and that even if it was, the probative value was substantially

outweighed by unfair prejudice.6 The State contends that the testimony of these

Covington witnesses was permissible to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident” and thus

was admissible at the trial. The State argues that the testimony was specifically

offered to show that Shook had a pattern of preying on teenage female students

6 Shook also argues that the Rape Shield statute should protect him from testimony regarding specific sexual acts, citing to R.C. 2907.02(D). We would note that Shook was not on trial for rape, and there is no similar “Rape Shield” provision in the Sexual Battery statute. There is one, however, in the GSI statute. Nevertheless, there is a specific exception in that provision for the type of 404(B) evidence discussed here.

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from the age of 15-17 in his band and choir classes, and that he would then engage

in sexual activity with them either on school grounds or at his home. The State

also contends that the Covington witnesses’ testimony was particularly relevant to

the claims of victim L.K. and K.W. where the State had to prove that when Shook

had contact with them, Shook had a sexual interest in those victims.

{¶38} The record supports the State’s arguments as Shook’s victims were

all 15-17 year old females who were in his band class and the sexual activity took

place either in the school or at Shook’s home. Both of the female Covington

witnesses testified to incidents that happened in the school, which is similar in

nature to all three of the victims in this case, indicating a plan or pattern.

{¶39} Moreover, the Covington witnesses’ testimony tends to show a

sexual motive in Shook touching L.K. and K.W., which is relevant to the elements

of the Gross Sexual Imposition charges. Shook either denied that he touched these

victims inappropriately, or claimed that any contact was not of a sexual nature.

The testimony of the Covington witnesses tends to dispute his denials and

indicates that Shook had a sexual interest in girls of that age in his classes.

{¶40} While there is some inherent prejudice in allowing the testimony of

the Covington witnesses, we cannot find under the facts and circumstances of this

case that the trial court abused its discretion in finding that the Covington

witnesses’ testimony was admissible at trial.

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{¶41} Nevertheless, even if the testimony of the Covington witnesses was

improperly admitted, any resulting prejudice was severely diminished by the trial

court’s multiple limiting instructions, and by being, at least in some part,

cumulative to other testimony already in the record.

{¶42} Prior to any of the Covington witnesses taking the stand, the court

gave the following limiting instruction to the jury.

Ladies and gentlemen, the State, as they have told you in opening statement, is going to have witnesses from the prior school district that the defendant was employed at. This is what we call other acts evidence, and there are rules under which this is admissible. We do not in this court or any other court in the State convict somebody of bad character, so his – his character isn’t at issue here, and this testimony isn’t being admitted to show the defendant’s character or that he acted in conformity with that character; it’s being admitted to prove other elements of the offense such as purpose, motive, plan, or scheme.

(Tr. at 413).

{¶43} At the conclusion of the trial, Shook’s counsel further highlighted the

court’s preliminary instruction to the jury during his closing arguments, by

emphasizing that the jury could not consider the Covington witnesses’ testimony

as 404(B) evidence.

I would like to talk for a moment before I start to talk about the actual alleged victims in this case, about the evidence that you heard from the witnesses who testified from Covington.

As [the prosecutor] indicated, they were not victims in this case. There are no charges filed in that case, and the judge will give you a limited instruction telling you you can only consider their

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testimony for the purpose of determining motive, opportunity, intent, or purpose, preparation or plan to commit the offense. What you cannot consider it for is that Mr. Shook acted in conformity therewith.

He told you when he talked to you about this before; that the reason for that is that we do not consider that because somebody did something bad in the past [does not mean] they did something bad at this point. You’re not permitted to consider it for that purpose, and there’s a very good reason.

Think about the witnesses from Covington. Charges happened eight years ago. What opportunity, what real opportunity does Mr. Shook have to provide you a defense to those charges? Counts that he’s not even charged with? Eight years ago, witnesses are gone, memories are faded. There might be alibi witnesses, there might have been someone else who was there.

These people did not come forward. They did not give him the opportunity to contest those charges, and it’s improper for you to consider that he did that then and because of that he’s done what he did to these girls. You may not make that connection.

You may consider it for motive, opportunity, intent, or purpose, and when you look at it that way, is what he allegedly did with the Covington witnesses the same as what he did in this case?

(Tr. at 729-730). Defense counsel then continued to argue that that the incidents at

Covington were different than the incidents in this case.7

{¶44} After closing arguments concluded, the trial court gave its formal

instructions to the jury, and specifically instructed the jury again on this issue of

the Covington witnesses, using the following language.

7 In defense counsel’s lengthy closing argument, she routinely attacks the idea that a consistent “plan,” “motive,” or “scheme” etc. was shown through the use of the Covington witnesses. (Tr. at 730-31, 762, 779).

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Evidence was received about the commission of crimes or wrong acts other than the offense with which the defendant is charged in this trial. That evidence was received only for a limited purpose. It was not received and you may not consider it to prove the character of the defendant in order to show that he acted in conformity with that character. If you find that the evidence of other crimes or wrongs – or wrong act true and the defendant committed it or them, you may consider that evidence only for the purpose of deciding whether it proves the defendant’s motive, opportunity, intent or purpose, preparation, or plan to commit the offense charged in this trial. That evidence cannot be considered for any other purpose.

(Tr. at 803-804).

{¶45} The trial court thus gave a limiting instruction before the evidence

was even heard, and an instruction to the jury before they deliberated. As we

presume that the jury followed the court’s instructions, we find any potential

prejudice severely limited in this case.

{¶46} That any potential prejudice is severely limited is also particularly

true in light of the fact that the jury was already aware of the existence of at least

one Covington witness through the testimony of victim E.P. During direct

examination of E.P., the following exchange occurred.

Q: Did [Shook] ever talk about why he left his former job?

A: He had said that he was having sexual relations with a girl from Covington and she had told her friends and then the teachers heard about it and started asking questions so he just left.

Q: Okay. Do you remember where that conversation occurred?

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A: We were in the instrument room.

(Tr. at 214). Therefore the jury was at least in part already aware of accusations of

Shook having a sexual relationship with a former student at Covington.

{¶47} Thus based on the record before us, we cannot find that the trial court

abused its discretion in permitting the Covington witnesses’ testimony. However,

even if the testimony was improperly admitted, we find that any prejudice was

severely limited. Any resulting prejudice seems insignificant in light of the

substantial evidence presented at trial, particularly with regard to E.P., who even

had journals detailing some of her encounters with Shook. Accordingly, for all of

the foregoing reasons, Shook’s second assignment of error is overruled.

Third Assignment of Error

{¶48} In Shook’s third assignment of error, he argues that the trial court

erred by excluding the testimony of one of his witnesses. Specifically, Shook

contends that the trial court erred in excluding the testimony of J.M., who would

have testified that victim E.P. told J.M. she was still a virgin after the date on

which E.P. claimed at trial to have had sex with Shook.

{¶49} A trial court has broad discretion whether to admit or exclude

evidence and its decision in such matters will not be disturbed on appeal absent an

abuse of discretion. State v. Graham,

(1979).

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{¶50} Evid.R. 613(B) governs the admissibility of extrinsic evidence of a

prior inconsistent statement. It states, in relevant part:

Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply:

(1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require;

(2) The subject matter of the statement is one of the following:

(a) A fact that is of consequence to the determination of the action other than the credibility of a witness * * *.

Evid.R. 613(B).

{¶51} Extrinsic evidence is not admissible under Evid.R. 613(B) unless a

proper foundation is laid for its admission. A foundation must be established

through direct or cross-examination in which: (1) the witness is presented with the

former statement; (2) the witness is asked whether he or she made the statement;

(3) the witness is given an opportunity to admit, deny, or explain the statement;

and (4) the opposing party is given an opportunity to interrogate the witness

regarding the inconsistent statement. State v. Morgan, 8th Dist. Cuyahoga No.

97934, 2012–Ohio–4937, ¶ 14–15, citing State v. Theuring,

(1st Dist. 1988).

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{¶52} If a witness denies making the statement, extrinsic evidence of the

statement is generally admissible; provided, the evidence does not relate to a

collateral matter. State v. Soke,

(8th Dist. 1995), citing

State v. Riggins,

(8th Dist. 1986). “If, however, the witness

admits making the prior statement, the trial court does not abuse its discretion by

thereafter refusing to admit extrinsic evidence of that statement.” State v. Kemp,

8th Dist. Cuyahoga No. 97913,

(additional citations omitted).

{¶53} In this case, Shook’s attorney attempted to challenge E.P.’s claims

regarding having sex with Shook, and E.P.’s related journal entries about when the

sexual incidents took place. During Shook’s counsel’s cross-examination of E.P.,

the following testimony was presented.

Q [DEFENSE COUNSEL]: So you went to snowball February 4th with Austin, and you talked with [J.M.] about that the following Monday, didn’t you?

***

A [E.P.]: Yes.

Q: In fact, you told her that you had a plan with Austin to lose your virginity that night but it didn’t happen because the condom broke. Do you remember telling [J.M.] that?

A: Not my virginity, his virginity.

Q: That’s not what you told [J.M.]. Your plan was to lose your virginity?

A: She thought that I was still a virgin.

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Q: Excuse me?

A: She thought that I was still a virgin.

Q: So you were lying to her when you said that?

A: Yes, I was.

(Tr. at 256-257).

{¶54} In order to further attempt to challenge E.P.’s claims and her

credibility, Shook called J.M. to the stand in his case-in-chief. When Shook’s

counsel began to ask J.M. about what E.P. had told her regarding the dance and

losing her virginity to Austin, the State objected and the following conversation

was held.

[STATE]: Objection. This is hearsay.

MS. BURKETT [Defense Counsel]: I can direct it specifically to impeaching [E.P.]’s testimony yesterday[.]

THE COURT: Let’s have a side bar, counsel.

***

[During sidebar]

THE COURT: It’s still hearsay.

MS. BURKETT [Defense Counsel]: [E.P.] testified yesterday that she did not tell [J.M.] that she was going to lose her virginity.

THE COURT: What she is testifying is hearsay. What is the hearsay exception?

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MS. BURKETT: It’s one prior inconsistent statement, Your Honor.

***

THE COURT: I’m not going to allow it. I don’t think this is admissible under 613.

MS. BURKETT: And we need to proffer it because it’s a pretty important piece of our case.

THE COURT: Okay.

***

MS. BURKETT: If we were permitted to question this witness, we anticipate that she would indicate that [E.P.] did in fact tell her that she was going to lose her virginity before the – she told her before the snowball that she had planned to lose her virginity with Austin at the snowball. She then spoke to her on Monday after the snowball and told her that, in fact, she did not lose her virginity because the condom had broken. This is directly contradictory to what [E.P.] testified to yesterday and this statement would have been offered to impeach her.

(Tr. at 509-510).

{¶55} On appeal, Shook contends that he should have been permitted to

introduce J.M.’s statement to impeach E.P. as having made prior inconsistent

statements. However, Shook overlooks the fact that E.P. never denied that she had

told J.M. she was still a virgin. E.P. explicitly testified on cross-examination that

she was lying to J.M. when she told her she was still a virgin at “snowball.” Thus

Shook had no basis to introduce extrinsic evidence of a prior inconsistent

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statement as E.P. did not provide inconsistent statements on this matter. Thus we

can find no error in the court’s denial of Shook’s proffered testimony. At the very

least, we cannot find that the trial court abused its discretion in excluding this

evidence. See

at ¶ ¶ 36-41.

{¶56} Moreover, even if there was error here, it clearly was not prejudicial

where the jury already had the testimony from E.P. that she had lied to J.M. about

being a virgin at the time of the snowball dance. J.M.’s testimony would have

merely been cumulative to testimony the jury was already aware of, and we could

not say that but-for this piece of evidence the outcome of the trial would have been

different. Thus even if there was error here, we cannot find that it was anything

but harmless. Accordingly, Shook’s third assignment of error is overruled.

{¶57} For the foregoing reasons Shook’s assignments of error are overruled

and the judgment of the Logan County Common Pleas Court is affirmed.

Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr

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