[Cite as State v. Barnett,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27660 : v. : Trial Court Case No. 2016-CR-1959 : DARRELL BARNETT : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 12th day of October, 2018.

...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, 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

CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton, Ohio 45426 Attorney for Defendant-Appellant

.............

WELBAUM, P.J. -2-

{¶ 1} Defendant-appellant, Darrell Barnett, appeals from his conviction and

sentence in the Montgomery County Court of Common Pleas after a jury found him guilty

of two counts of sexual battery against his 15-year-old daughter. For the reasons

outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On August 18, 2016, the Montgomery County Grand Jury returned an

indictment charging Barnett with two counts of sexual battery in violation of R.C.

2907.03(A)(5). The charges stemmed from allegations that Barnett sexually abused his

15-year-old daughter, AG, on two separate occasions in March 2016. Barnett pled not

guilty to the charges and the matter proceeded to a jury trial.

{¶ 3} As it relates to this appeal, it is undisputed that Barnett and AG’s mother

(“Mother”) were legally separated at the time of the alleged abuse. It is also undisputed

that Barnett and Mother have five children together, four daughters and one son. Their

daughters are HR and HL, who are both 18 years old, AG, who has since turned 16 years

old, and E, who is 11 years old. Their only son, D, is 10 years old. Their oldest

daughter, HR, is married and has one child.

{¶ 4} In January 2016, Mother and the five children moved out of Barnett’s

residence, which is located in the city of Moraine, Montgomery County, Ohio. Mother,

HR, HL, D, and HR’s husband and child moved in with Mother’s father (“Grandfather”).

Due to limited space in Grandfather’s home, AG and E went to live with Mother’s sister

(“Aunt”). -3-

{¶ 5} After moving out of the residence, AG and her siblings began biweekly visits

with Barnett. During these visits, four of the five children, HL, AG, E, and D, would spend

Thursday through Sunday with Barnett at Barnett’s residence. At trial, both AG and

Mother testified that there was only one bed and two loveseat couches at Barnett’s

residence. AG also testified that when she and her siblings visited Barnett’s residence,

she and her two sisters, HL and E, would typically sleep on the floor of the “pink room”

located upstairs. AG’s brother, D, would sleep on one of the two couches located in the

first-floor living room. Barnett would sleep in the first-floor bedroom where the only bed

in the residence was located.

{¶ 6} The record indicates that AG and her siblings visited Barnett during the

second week of March 2016. AG testified that, during this visit, she attempted to sleep

on the second couch that was located in the first-floor living room because she had

arthritis in her back and had difficulty sleeping on the floor. Both AG and Mother testified

that AG had a chronic back problem for which she took medication. AG testified that at

all relevant times she was taking Flexeril for her back pain. AG testified that she only

took the Flexeril at night before going to bed because it made her very drowsy. Mother

confirmed at trial that the Flexeril made AG drowsy.

{¶ 7} After moving downstairs to the first-floor living room, AG testified that her

younger sister, E, asked to sleep on the couch. AG testified that she agreed to let E

sleep on the couch and that Barnett thereafter invited AG to sleep with him in his bed.

After accepting Barnett’s invitation, AG testified that she recalled walking into Barnett’s

room, but did not specifically remember falling asleep. Although she did not remember

falling asleep, AG testified that she woke up briefly in the middle of the night to Barnett -4-

having his hand under her tank top and bra. AG testified that Barnett made skin to skin

contact with her breast. Due to the Flexeril, AG testified that she struggled to stay awake

and fell back asleep.

{¶ 8} Continuing, AG testified that, when she woke up a second time, her clothes

had been removed and Barnett was naked and on top of her. AG claimed that Barnett

was moving up and down with his whole body touching hers. During this time, AG

testified that Barnett’s penis was inside her vagina and that it was painful. AG testified

that she knew what was happening, but could not do anything to stop Barnett from having

sexual intercourse with her because she felt like she was in a “sleep coma.” Trans. Vol.

I (May 30, 2017), p. 152.

{¶ 9} AG testified that when Barnett eventually stopped, she was able to get out of

bed and locate her clothes on the floor. AG then ran into the bathroom, locked the door,

and cried. AG testified that she was terrified and did not know what to think. After crying

in the bathroom for some time, she returned to the bedroom and went back to sleep.

{¶ 10} AG testified that she did not immediately tell anyone about what had

happened to her because she was afraid of Barnett, who she claimed was very violent.

AG explained that Barnett liked to yell and scream and that he had threatened to hurt her

and her siblings. AG also claimed that Barnett had told her and her siblings that he could

easily kill their mother. AG testified that she believed Barnett’s threats because he had

knives and guns in the house that he would use when making his threats.

{¶ 11} After the incident in Barnett’s bedroom, AG told Mother, Aunt, and

Grandfather that she did not want to go back to Barnett’s house to visit Barnett.

Unfortunately, Mother told AG that she had to visit Barnett again. When told this news, -5-

AG claimed that she was terrified and that she cried and threw a fit in opposition.

{¶ 12} At trial, Aunt confirmed that AG was upset upon learning she had to visit

Barnett again. Specifically, Aunt testified that AG was “hysterical” and that AG had

“curled up in a ball, screaming and crying and shaking.” Trans. Vol. II (June 1, 2017), p.

400-401. Aunt further testified that she had never seen AG behave like that before and

that it was different than her usual general dislike for visiting Barnett. According to Aunt,

during the timeframe of the abuse, AG’s personality and behavior changed from bubbly

and happy to withdrawn and depressed.

{¶ 13} Although she did not want to return to Barnett’s residence, AG testified that

she and her siblings went back to Barnett’s residence for their biweekly visit on March 24,

2016. AG testified that a similar scenario occurred between her and Barnett during that

visit. Specifically, AG testified that she attempted to sleep on the couch, her younger

sister E wanted the couch, and that Barnett invited her to sleep with him in his bed. When

asked why she again agreed to sleep with Barnett in his bed considering what had

happened previously, AG testified that she slept there because her younger sister E

offered to sleep with Barnett and AG wanted to protect E from Barnett.

{¶ 14} During this second incident, AG, who had taken her Flexeril before going to

bed, testified that she once again woke up in the middle of the night to Barnett having his

hand under her shirt and on her breast. AG testified that she later woke up to Barnett’s

naked body moving up and down on top of her. AG testified that her clothes were once

again removed, Barnett’s penis was inside her vagina, and it was painful. AG testified

that she was more awake during this second incident and that she actively tried to push

Barnett off her, but was unable to do so. AG also claimed that Barnett tried to kiss her, -6-

but that she moved her head away.

{¶ 15} When Barnett stopped, AG testified that she once again ran into the

bathroom. Thereafter, AG testified that her brother, D, came into the bedroom to sleep

on the floor. AG claimed she then got back into bed with Barnett because she felt safer

with D on the floor, as AG believed Barnett would not do anything to her while D was

present.

{¶ 16} Shortly thereafter, while D was sleeping, AG testified that she told Barnett

she was going to tell Mother what had happened. In response, AG claimed that Barnett

said Mother would not believe her, that she should not tell anyone because he would go

to prison, and that he would kill himself before going to prison. AG testified that she was

terrified Mother would not believe her.

{¶ 17} AG testified that, the day after this second incident, she went to lunch with

Mother and Barnett. During this time, AG testified that Mother and Barnett spoke with

her about some inappropriate sexual text messages that they had recently discovered on

her cell phone. When asked how she discovered the text messages, Mother testified

that AG had left her cell phone at church the previous day and that the pastor’s wife had

given the cell phone to Aunt. The record indicates that Aunt looked through AG’s cell

phone and found that AG had been exchanging sexually explicit text messages with a 29-

year-old male. Upon discovering the text messages, Aunt showed the messages to

Mother, who then discussed the matter with Barnett. Mother testified that she and

Barnett decided to report the matter to police and to confront AG about the messages

over lunch.

{¶ 18} At lunch, Mother and Barnett told AG that they were disappointed in her and -7-

that the police had both her cell phones.1 After being confronted by Mother and Barnett

about the text messages, AG informed Mother that she had something important to tell

her. AG and Mother then drove to AG’s grandmother’s farm to feed their puppies.

During this trip, Mother asked AG what she wanted to tell her. Mother testified that AG

seemed upset and started crying uncontrollably in the car. In response, Mother kept

asking AG what was wrong, to which AG responded: “Mommy, I can’t.” Trans. Vol. II

(June 1, 2017), p. 368. Mother also testified that AG told her that she “was going to hate

her and * * * be mad at her.” Id. at 369. Thereafter, Mother suggested AG write down

what she wanted to say. AG agreed, and when they returned home, AG wrote her

mother a letter explaining what had happened with Barnett.

{¶ 19} At trial, AG read the letter into the record before the jury. In the letter, AG

wrote:

I was raped. Okay. If that’s what you want to call it, by Darrell Barnett, * *

*. A few months or weeks ago I slept in on your side and with headphones

in and then in the middle of the night I woke up with his hand in my shirt and

I got scared. Before I could do anything I fell back asleep. Then the next

time his hand was in my pants. This is so hard mom. Then he took my

clothes off as I was asleep. I could barely function because I took some

medicine to help me sleep, Flexeril, you know how it is sometimes * * * I

1 The record indicates that AG had two cell phones. Mother took away AG’s first cell phone in January 2016 as punishment for AG sending “inappropriate messages to people.” Trans. Vol. II (June 1, 2017), p. 357. Mother did not realize that AG had a second cell phone on which she was messaging the 29-year-old male. Mother did not specify what kind of “inappropriate messages” AG was sending on her first phone nor did Mother indicate to whom AG was sending the inappropriate messages. -8-

was so upset and scared, I didn’t know what to do. I have cried over it

every night because I don’t know what to do. I don’t know how to deal with

it. I just want to die and I’m so scared, momma; that’s why I (indiscernible)

about coming here because I’m so scared it’s going to happen, but I went—

wasn’t okay because you said there was no way out of it. Then a few nights

ago it happened all over again. Mommy, I’m so sorry, it just—he is stronger

than you think and I tried to get him to stop, but he wouldn’t. I finally got

him off and I was going—I was crying and he said ‘What’s wrong?’ I told—

and asked him maybe I should tell mom—we should tell mom. He said,

‘No, it’s our secret,’ and I asked if it was bad and he said yes he could go to

prison, but he was—said that he would kill himself before he goes. I don’t

know what to do anymore. I’m scared. I am so scared. He could kill you

or kill me or himself. He said he would do everything like nothing

happened, which I promise to God it did, mom, I’m so scared, I don’t want

it to happen again, mom, I don’t know what to do.* * *

Trans. Vol. II (June 1, 2017), p. 299-300.

{¶ 20} After reading the letter, Mother took AG to the police station where AG was

initially interviewed by Officer Mollie Hayden of the Moraine Police Department. Hayden

testified that AG was upset, crying, scared, and emotional during the interview. Hayden

also testified that AG became so emotional that she could not understand what AG was

saying and could not complete the interview. As a result, Hayden called Detective

Kenneth Lloyd, a more experienced officer, to complete the interview with AG.

{¶ 21} Detective Lloyd testified that AG was very upset and crying during his -9-

interview. After the interview, Detective Lloyd testified that he instructed Mother to take

AG to the hospital for purposes of having a sexual assault exam conducted. Detective

Lloyd further testified that he obtained a DNA sample from Barnett, with Barnett’s consent,

and sent evidence technicians to Barnett’s house to collect AG’s underwear and the

bedsheets from Barnett’s bed.

{¶ 22} Per Detective Lloyd’s instruction, Mother took AG to the hospital to have a

sexual assault exam conducted. The sexual assault nurse examiner, Kristi Teeters,

testified that she had AG tell her in her own words what happened during the assault and

wrote down what AG said word for word. According to Teeters, AG told her “she was at

her dad’s house, that she couldn’t sleep on the floor so she was asleep on the couch and

that her other sister wanted to sleep on the couch so her dad told her she could come

sleep in his room in his bed.” Trans. Vol. II (June 1, 2017), p. 469. Teeters also testified

that AG told her:

We fell asleep back to back. * * * I was so tired. I woke up with his hand in

the front of my shirt. I fell back asleep. I woke back up with his hand down

my pants. I don’t even remember how my clothes came off, and then he

was on top of me or I was on top of him I don’t even know what happened I

tried to fight him off and get away, but he was stronger than me. I finally

got away and locked myself in the bathroom.

Id. Teeters further testified that AG told her: “I went out to check on the other kids. My

dad tried to put his arm around me and I tensed up. I told him I was telling mom, and he

said no, don’t. [He] said he’d kill himself before going to prison.” Id.

{¶ 23} After speaking with AG, Teeters testified that she used a sexual assault kit -10-

to examine AG, which included a vaginal and rectal exam, as well as taking various swabs

from AG’s body, including her vagina. Teeters testified that she then provided the

completed sexual assault kit to law enforcement.

{¶ 24} Timothy Augsback, a forensic scientist in the DNA section of the Ohio

Bureau of Criminal Investigation (“BCI”), testified that BCI received the sexual assault kit

and the evidence collected by law enforcement for purposes of conducting DNA and

seminal fluid testing. Augsback testified that his role was to compare the DNA profiles

found on the evidence to known standards in order to determine whether the DNA came

from a common source.

{¶ 25} Augsback testified that no DNA profile foreign to AG was found on AG’s

vaginal swabs and that the vaginal swabs were inconclusive for the presence of semen.

When asked what the term “inconclusive” meant, Augsback explained that it meant there

was a “faint positive result,” which “indicates the presumptive test could have indicated

the presence [of semen], but it was not able to be photographed, and you could not see

the result.” Trans. Vol. III (June 2, 2017), p. 529. Augsback, therefore, “could not say

whether or not seminal fluid was in fact present.” Id. at 528.

{¶ 26} Augsback further testified that AG’s DNA was identified on four out of five

pairs of underwear that were tested. Augsback testified that male DNA was also present

on three pairs of the underwear on which AG’s DNA was present. However, Augsback

testified that the source of the male DNA could not be identified. Augsback further

testified that the bedsheet tested positive for semen and contained a mixture of DNA from

Barnett, AG and Mother.

{¶ 27} While the State was building its case against Barnett, sometime in the fall -11-

of 2016, AG wrote a second letter to Mother in which AG offered to recant her allegations

against Barnett. In the letter, AG stated, in part, the following:

I didn’t lie about what if it was a nightmare and none of it was true. I would

never lie about something like that happening to me. I have crazy wild

dreams and nightmares and I have—I can’t hardly remember parts of what

happened because of it—because what if it never did. I can’t help living

knowing I don’t know what happened and I can’t—cannot stand on trial, * * *

no one believes me anyways, so why does it even matter what I say from

this point on. I just want what’s best for everyone and everyone wants their

dad around. There is no evidence as to what happened to me, so just my

word against his, and as long as everyone’s happy and you are, then I’ll just

say I lied so everyone gets what they want, because I can’t help living this

way.

Trans. Vol. II (June 1, 2017), p. 292.

{¶ 28} When asked about this second letter, which was provided to Detective Lloyd

by Mother, AG testified that the letter did not indicate that her allegations against Barnett

were untrue. According to AG, she wrote the letter because no one in her family believed

that Barnett abused her and because she was scared.

{¶ 29} In addition to the foregoing testimony, the State called AG’s

psychotherapist, Frances Duncan. Duncan, who has been treating AG since November

2016, testified that AG had been consistent in her account of what happened during the

abuse in question. Duncan also testified that the trauma from the sexual assault caused

AG to suffer symptoms of post-traumatic stress disorder, including sleep disturbances, -12-

anxiety, depression, and a sense of being damaged. Duncan further testified that there

was a great deal of dysfunction in AG’s family. From her sessions with AG, Duncan

learned that Barnett had on numerous occasions threatened to kill the family, including

the children. Duncan also testified that AG told her Barnett had threatened the children

by sharpening knives and cleaning guns in front of them. Duncan also learned that

Barnett had threatened to cut Mother into pieces and had a history of killing family pets.

{¶ 30} After the State rested its case, the defense presented two witnesses to

testify on Barnett’s behalf. The first witness, Bob Stinson, was a clinical psychologist

who had never seen or treated AG. Stinson simply provided general testimony on the

topics of delayed disclosures, false allegations, and the credibility of victims in sexual

abuse cases.

{¶ 31} The second defense witness, Knoll Watson, was AG’s physician. Dr.

Watson testified that he had treated AG for depression since November 2015, for which

he prescribed Zoloft. Watson also testified that AG had complained of back pain prior to

March 2016 and that he had prescribed her Flexeril, which can cause drowsiness.

Watson specifically testified that he prescribed AG ten tablets of Flexeril on March 4,

2016. Watson claimed it would be rare for Flexeril to cause incapacitation, but that it

commonly makes people tired or sleepy. Following this testimony the defense rested its

case.

{¶ 32} After closing arguments and jury instructions, the jury deliberated and found

Barnett guilty of both counts of sexual battery. The trial court then sentenced Barnett to

five years in prison on each count, to be served consecutively, for a total prison term of

ten years. The trial court also designated Barnett a Tier III sex offender. -13-

{¶ 33} Barnett now appeals from his conviction and sentence, raising five

assignments of error for review.

First Assignment of Error

{¶ 34} Barnett’s First Assignment of Error is as follows:

APPELLANT WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR TRIAL

WHEN THE TRIAL COURT PERMITTED THE STATE TO INTRODUCE,

OVER OBJECTION, TESTIMONY REGARDING APPELLANT’S

ALLEGED VIOLENT HISTORY.

{¶ 35} Under his First Assignment of Error, Barnett contends that the trial court

erred by permitting the State to introduce testimony at trial regarding prior acts of violence

and threats that he had made toward his family. Specifically, Barnett challenges AG’s

testimony that Barnett threatened her and her siblings with knives and guns and that

Barnett had stated that he could easily kill Mother. Barnett also challenges the testimony

of AG’s counselor, Duncan, who testified that AG told her Barnett had sharpened knives

and cleaned guns in front of his children, killed family pets, and threatened to kill his

children and to cut Mother into pieces. Barnett claims this testimony was irrelevant,

highly prejudicial, and inadmissible under Evid.R. 404(B).

{¶ 36} Evid.R. 404(B) provides, in relevant part, that:

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 -14-

mistake or accident.

{¶ 37} “The language of Evid.R. 404(B) indicates that the list of purposes for which

evidence of other crimes, wrongs, or acts may be admitted is not an exhaustive listing.”

State v. Morris,

,

,

, ¶ 18. Rather,

“evidence of other crimes, wrongs, or acts may be admissible for any purpose material to

the issue of guilt or innocence as long as it is not being introduced for the purpose of

showing the accused’s propensity to commit bad acts.” State v. Boles,

,

,

(2d Dist.).

{¶ 38} “Generally, evidence of other acts is admissible if (1) it is offered for a

purpose other than to prove the character of a person in order to show action in conformity

with that character, Evid.R. 404(B), (2) it is relevant when offered for that purpose, Evid.R.

401, and (3) the danger of unfair prejudice does not substantially outweigh its probative

value, Evid.R. 403.” State v. Goldblum, 2d Dist. Montgomery No. 25851, 2014-Ohio-

5068, ¶ 32, citing State v. Kirkland,

,

,

, citing State v. Williams,

,

,

.

{¶ 39} “A trial judge has considerable discretion to determine whether the specific

[prior acts] evidence is of such a nature that it falls within one of the other purposes under

Evid.R. 404(B) for which the evidence may be admitted.” Id. at ¶ 32, citing Morris at ¶ 19.

The Supreme Court of Ohio has stressed that “[u]nless the trial court has ‘clearly abused

its discretion and the defendant has been materially prejudiced thereby, this court should

be slow to interfere’ with the exercise of such discretion.”

, quoting State

v. Hymore,

,

(1967). “A trial court abuses its -15-

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

(Citation omitted.) State v. Darmond,

,

,

.

{¶ 40} Based on the record before this court, we do not find that the trial court

abused its discretion in permitting the State to introduce testimony regarding Barnett’s

prior violent and threatening behavior toward his family. At trial, AG testified that she did

not initially disclose Barnett’s abuse to anyone because Barnett was violent and she

feared him. Given this testimony, the trial court reasonably concluded that the evidence

of Barnett’s prior violent acts and threats was admissible to show the basis of AG’s fear

of Barnett and that her fear was rational. As a result, the evidence of Barnett’s prior

behavior was not offered to prove that Barnett had bad character or that he acted in

conformity with that bad character. Rather, evidence of Barnett’s prior behavior gave

substance to AG’s claimed fear of Barnett and explained why AG delayed disclosing the

sexual abuse. The prior bad acts evidence in question was therefore offered for a reason

other than showing conformity with Barnett’s character and was relevant in establishing

the basis of AG’s fear.

{¶ 41} Our finding is supported by prior decisions of this court wherein we held that

a defendant’s prior history of verbal or physical abuse toward a victim was admissible to

demonstrate the victim’s state of mind and/or to explain the victim’s delay in reporting the

defendant’s criminal activity. See, e.g., State v. Moore, 2d Dist. Greene No. 2010 CA

13,

, ¶ 20, 22 (holding that defendant’s alleged prior bad acts were relevant

to victim’s fearful response to defendant’s behavior and her state of mind, noting that

defendant’s “history of threatening, frightening, and abusing [the victim] * * * helped to -16-

explain [the victim’s] reluctance to call the police”); State v. Crowley, 2d Dist. Clark No.

2009 CA 65,

, *3 (holding that defendant’s prior domestic violence was

admissible “to prove [the victim] had a reasonable basis to fear that [the defendant] would

commit physical harm to her, as he had done in the past.”); State v. Kneisley, 2d Dist.

Montgomery No. 17027,

, *1 (Jan. 15, 1999), (holding that prior incident

of domestic violence was admissible for the limited purpose to show why the victim waited

three days to report defendant’s crime).

{¶ 42} Furthermore, since Barnett made AG’s credibility a central issue of the case,

the State was entitled to support AG’s credibility with evidence that corroborated her

claimed fear of Barnett. For that reason, as well as the reasons discussed more fully

above, we find that the evidence of Barnett’s prior violent acts and threats had great

probative value that was not outweighed by unfair prejudice.

{¶ 43} For the foregoing reasons, Barnett’s First Assignment of Error is overruled.

Second Assignment of Error

{¶ 44} Barnett’s Second Assignment of Error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO

ALLOW ADDITIONAL TESTIMONY OR EVIDENCE OF [AG’S] SEXUALLY

EXPLICIT TEXT MESSAGE EXCHANGES.

{¶ 45} Under his Second Assignment of Error, Barnett contends that the trial court

erred in excluding testimony and evidence concerning sexually explicit text messages -17-

that AG had exchanged with a 29-year-old male.2 Barnett claims the text messages

were critical to his defense because he sought to prove that AG accused him of sexual

abuse as retaliation for him and Mother discovering the text messages and taking away

AG’s cell phone as punishment. According to Barnett, the text messages establish that

AG had a motive for accusing him of sexual abuse and could “potentially explain” the

inconclusive DNA/seminal fluid test results. As a result, Barnett claims the trial court’s

decision to exclude testimony and evidence regarding the text messages infringed on his

constitutional right to present his defense.

{¶ 46} “[T]he Constitution guarantees criminal defendants ‘a meaningful

opportunity to present a complete defense.’ ” Crane v. Kentucky,

,

,

(1986), quoting California v. Trombetta,

,

,

(1984). Accord State v. Wesson,

,

,

. However, “this constitutional right is not

absolute and does not require the admission of all evidence favorable to the defendant.”

(Emphasis deleted.) State v. Swann,

,

,

, citing United States v. Scheffer,

,

,

(1998). (Other citations omitted.) “ ‘In the exercise of this right, the

accused, as is required of the State, must comply with established rules of procedure and

evidence designed to assure both fairness and reliability in the ascertainment of guilt and

innocence.’ ” Id. at ¶ 14, quoting Chambers v. Mississippi,

,

In his appellate brief, Barnett erroneously alludes to other sexually explicit text messages sent between AG and her boyfriend. At trial, AG specifically denied sending any inappropriate text messages to anyone other than the 29-year-old-male, and there is nothing in the record indicating that AG sent sexually explicit text messages to her boyfriend as Barnett suggests. -18-

1038,

(1973).

{¶ 47} Pursuant to Evid.R. 402, all relevant evidence is generally admissible

whereas irrelevant evidence is not. “Relevant evidence” is defined as “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.” Evid.R. 401. However, relevant evidence is not admissible and must be

excluded “if its probative value is substantially outweighed by the danger of unfair

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

{¶ 48} A trial court has broad discretion to admit or exclude evidence and its

exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.

State v. Norris, 2d Dist. Montgomery No. 26147,

, ¶ 14, citing State v.

Noling,

,

,

. As previously noted,

“[a] trial court abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.” Darmond,

,

,

. When applying this standard, “an appellate court may not merely

substitute its judgment for that of the trial court.” State v. Cassel,

,

, ¶ 13 (2d Dist.), citing Berk v. Matthews,

,

(1990).

{¶ 49} In this case, the parties agreed prior to trial that AG’s conduct in exchanging

sexually explicit text messages with a 29-year-old male was admissible evidence.

However, the State argued, and the trial court agreed, that the actual content of the

sexually explicit text messages was irrelevant to the allegations against Barnett. The

trial court further determined that even if the content of the text messages was relevant, -19-

the probative value of the content was substantially outweighed by unfair prejudice.

Accordingly, the trial court prohibited the content of the text messages from being

admitted at trial.

{¶ 50} Upon review of the text messages at issue, we do not find that the trial court

abused its discretion in excluding the contents of the text messages at trial. The text

messages did not pertain to the allegations of sexual abuse against Barnett and in no

way furthered his defense strategy. Barnett’s defense hinged on the fact that he had

discovered AG had been exchanging sexually explicit text messages with a 29-year-old

male. The record is clear that Barnett was not prevented from presenting that fact to the

jury. Simply stated, the actual content of the text messages was of no consequence to

Barnett’s defense, as the content would not have made his claim of retaliation any more

or less probable. In other words, presenting the contents of the text messages to the

jury would have served no purpose other than to portray AG in a negative light.

Therefore, based on the record before this court, it was not unreasonable for the trial court

to conclude that the probative value of the text messages fell below the potential for unfair

prejudice.

{¶ 51} For the foregoing reasons, Barnett’s Second Assignment of Error is

overruled.

Third Assignment of Error

{¶ 52} Barnett’s Third Assignment of Error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED

TIMOTHY AUGSBACK TO TESTIFY REGARDING DNA AND SEMINAL -20-

FLUID TESTING.

{¶ 53} Under his Third Assignment of Error, Barnett contends that the testimony of

BCI forensic scientist Timothy Augsback violated his rights under the Confrontation

Clause of the Sixth Amendment because scientists other than Augsback performed the

DNA and seminal fluid testing on which Augsback based his expert opinions. According

to Barnett, the State’s failure to present the scientists who actually performed the DNA

and seminal fluid testing ran afoul of the Confrontation Clause.

{¶ 54} The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him[.]” The United States Supreme Court has interpreted this to mean that the

admission of an out-of-court statement of a witness who does not appear at trial is

prohibited by the Confrontation Clause if the statement is testimonial, unless the witness

is unavailable and the defendant had a prior opportunity to cross-examine the witness.

Crawford v. Washington,

,

,

(2004);

State v. Maxwell,

,

,

. However,

“the Confrontation Clause ‘does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted.’ ” State v. Ali, 2d Dist. Clark No.

2014 CA 59,

, ¶ 17, quoting

. “[T]he core class of

testimonial statements includes statements ‘that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.’ ” State v. Syx,

,

,

(2d Dist.), quoting

.

{¶ 55} In Williams v. Illinois,

,

,

(2012), -21-

the United States Supreme Court found no Confrontation Clause violation under

circumstances very similar to the case at bar. In Williams, a forensic expert testified that

a DNA profile was obtained from semen on a rape victim’s vaginal swabs and that the

DNA profile from the vaginal swabs matched a state-police-lab DNA profile that was

generated from a sample of the defendant’s blood.

. The expert further testified

that the DNA profile from the vaginal swabs was prepared by an outside laboratory.

On cross-examination, the expert confirmed that she did not conduct or observe any of

the DNA testing on the vaginal swabs and that her testimony relied on the DNA profile

produced by the outside laboratory.

In light of that fact, the defendant argued his

confrontation rights were violated when the expert testified about a DNA profile that the

expert had not prepared.

. The report from the outside laboratory was not

admitted into evidence, read during trial, or shown to the factfinder.

.

{¶ 56} The Court in Williams held that the expert’s testimony did not violate the

Confrontation Clause “because that provision has no application to out-of-court

statements that are not offered to prove the truth of the matter asserted.”

;

State v. Keck,

,

,

. The Court

explained that “[w]hen an expert testifies for the prosecution in a criminal case, the

defendant has the opportunity to cross-examine the expert about any statements that are

offered for their truth. Out-of-court statements that are related by the expert solely for

the purpose of explaining the assumptions on which that opinion rests are not offered for

their truth and thus fall outside the scope of the Confrontation Clause.” Williams at 58;

.

{¶ 57} The present case is analogous to Williams. Similar to the facts of Williams, -22-

Augsback testified that other scientists in his department conducted the necessary DNA

testing to prepare DNA profiles from the sexual assault kit, bedsheets, and AG’s

underwear. Augsback confirmed that his role was not to conduct the DNA testing on

those items, but to review and compare the resulting data to known standards in order to

determine whether any of the DNA came from a common source. Like the expert in

Williams, Augsback was able to explain the processes used to conduct the DNA testing

that was performed by the other scientists. See Williams at 60. Contrast State v.

Hartman,

,

, ¶ 82 (2d Dist.) (noting the DNA expert was

unable to fully explain the reasoning for the process used to conduct the testing).

{¶ 58} The reports of the scientists who prepared the DNA profiles were not

admitted into evidence. Rather, the record indicates that Augsback simply relied on the

information in those reports to make his DNA profile comparisons and to render his

conclusions about the source of DNA on each item. In other words, the DNA profiles

prepared by the other scientists were not offered for their truth at trial, but were simply

used by Augsback to explain how he reached his conclusions.

{¶ 59} Likewise, the results of seminal fluid testing on the vaginal swabs (which

was also performed by another scientist) were used by Augsback to help him explain his

conclusions regarding the source of DNA on the vaginal swabs. During trial, Augsback

testified that AG was the single contributor of DNA and that no DNA profile foreign to AG

was found on the vaginal swabs. When Augsback was asked whether there may not

have been enough seminal fluid in AG’s vagina to yield an additional DNA profile from the

vaginal swabs, Augsback explained that the vaginal swabs were “inconclusive” for the

presence of semen. Trans. Vol. III (June 2, 2017), p. 528. Augsback then explained -23-

that the term “inconclusive” meant there was a “faint positive result” which “indicates the

presumptive test could have indicated the presence [of semen], but it was not able to be

photographed[.]” Id. at 529. Accordingly, Augsback “could not say whether or not

seminal fluid was in fact present.” Id. at 528. Contrary to Barnett’s claim otherwise, the

fact that Augsback defined the term “inconclusive” does not violate the Confrontation

Clause because it is not an out-of-court, testimonial statement, but a statement based on

Augsback’s own knowledge of BCI lab terminology.

{¶ 60} Barnett claims that Williams is distinguishable from the present case

because Williams involved a bench trial. We fail to see how that fact is relevant. Barnett

also attempts to analogize this case to Melendez-Diaz v. Massachusetts,

,

,

(2009) and Bullcoming v. New Mexico,

,

,

(2011), wherein the United States Supreme Court held

that forensic reports could not be used as substantive evidence against the defendant

unless the analyst who prepared and certified the reports was subject to confrontation.

In Melendez-Diaz and Bullcoming, the forensic reports were introduced into evidence for

the purpose of proving the truth of what they asserted, specifically, in Bullcoming that the

defendant’s blood alcohol level exceeded the legal limit and in Melendez-Diaz that the

substance in question contained cocaine. Williams,

,

,

. The reports in Melendez-Diaz and Bullcoming therefore “ ‘contain[ed] a

testimonial certification, made in order to prove a fact at a criminal trial.’ ”

,

quoting Bullcoming at 657.

{¶ 61} Unlike Melendez-Diaz and Bullcoming, the forensic reports relied on by

Augsback in this case were not admitted into evidence and were not used to prove a fact -24-

a trial. Simply put, Melendez-Diaz and Bullcoming did not address the specific issue in

this case, i.e., whether the Confrontation Clause bars an expert from expressing a

scientific opinion based on laboratory testing that the expert did not perform himself.

Williams, however, answers this question in the negative. Id. at 58.

{¶ 62} Because the results of the DNA and seminal fluid tests performed by other

scientists were not offered for their truth, but used to help Augsback explain his own

scientific conclusions, all of which were subject to cross-examination, per Williams, there

was no violation of the Confrontation Clause. Barnett’s claim to the contrary lacks merit.

{¶ 63} Under his Third Assignment of Error, Barnett also argues that Augsback

lacked the necessary expert qualifications under Evid.R. 702 to give an expert opinion

regarding seminal fluid testing. The admissibility of expert testimony is a matter

committed to the sound discretion of the trial court, and the trial court’s ruling will not be

overturned absent an abuse of that discretion. Valentine v. Conrad,

,

,

. As previously noted, “[a] trial court abuses its

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

(Citation omitted.) Darmond,

,

,

.

{¶ 64} Pursuant to Evid.R. 702, a witness may testify as an expert if all of the

following apply:

(A) The witness' testimony either relates to matters beyond the knowledge

or experience possessed by lay persons or dispels a misconception

common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, -25-

experience, training, or education regarding the subject matter of the

testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other

specialized information. * * *

{¶ 65} Barnett contends that Augsback was not qualified as an expert in seminal

fluid testing because he testified that he “[has] been competency tested in [seminal fluid

testing], but * * * do[es] not maintain proficiency to perform it regularly[.]” Trans. Vol. II

(June 1, 2017), p. 448. As a result, Barnett claims Augsback did not have the specialized

knowledge, skill, experience, or training to testify regarding the seminal fluid test results.

We disagree.

{¶ 66} Upon review, we do not find that the trial court abused its discretion in

allowing Augsback to testify that seminal fluid test results on the vaginal swab were

“inconclusive.” We also find that the trial court did not abuse its discretion by allowing

Augsback to testify that the term “inconclusive” meant there was a “faint positive result”

that was insufficient to conclude whether seminal fluid was in fact present. As the record

indicates, Augsback not only had specialized knowledge of the test results based on his

employment at BCI, but also specifically testified that he was familiar with seminal fluid

testing and that he was “competency tested” to conduct such tests.

.

Although Augsback admitted that he did not have the proficiency to conduct seminal fluid

testing regularly and typically does not perform the test at issue, given the limited nature

of his testimony and his specialized knowledge as a BCI employee, we do not find that it

was unreasonable for the trial court to permit Augsback to testify in this manner.

{¶ 67} The dissent agrees that Augsback’s testimony did not violate the -26-

Confrontation Clause and that Augsback was qualified to testify as an expert, but

nevertheless believes a reversal and retrial is warranted based on Evid.R. 703. Barnett,

however, failed to challenge Augsback’s testimony under Evid.R. 703 in his appeal. It is

not this court’s duty to create an argument on Barnett’s behalf. The burden of

demonstrating error on appeal rests with the appellant. Durrstein v. Tuttle-Durrstein, 2d

Dist. Greene No. 2005-CA-112,

. See also App.R. 16(A)(7)

(requiring briefs to have “[a]n argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons in support of

the contentions, with citations to the authorities, statutes, and parts of the record on which

appellant relies”); State v. Billiter,

,

(4th Dist) (“it is

not our function to construct the appellant’s arguments for him”). Because Barnett failed

to challenge Augsback’s testimony under Evid.R. 703 in his appeal, we decline to sua

sponte raise the issue.

{¶ 68} Even if Augsback’s testimony about the DNA test results was prohibited

under Evid.R. 703, any resulting prejudice was minimal given that the DNA test results

were favorable to Barnett in that none of the results specifically indicated that Barnett’s

DNA was found on AG’s vaginal swab or underwear. As previously noted, Augsback

testified that no DNA profile foreign to AG was found on AG’s vaginal swab and that the

vaginal swab was inconclusive for the presence of semen. Although Augsback testified

that “inconclusive” meant there was a “faint positive result” for seminal fluid on AG’s

vaginal swab, Augsback explained that he “could not say whether or not seminal fluid was

in fact present.” Trans. Vol. III (June 2, 2017), p. 528. On cross-examination, Augsback

also testified that before testing the vaginal swab for seminal fluid, the vaginal swab was -27-

first tested for spermatozoa and that “no sperm were identified” on the vaginal swab

despite the seminal fluid testing coming back as inconclusive. Id. at 544-545.

Augsback further clarified that if any spermatozoa had been identified, the test for seminal

fluid would have been positive. Id. Moreover, Augsback testified that the male DNA

found on three pairs of AG’s underwear could not be identified. Accordingly, the male

DNA in AG’s underwear could not be linked to Barnett.

{¶ 69} Although Augsback testified that Barnett’s bedsheet tested positive for

semen and carried a mixture of DNA from Barnett, his wife, and AG, on cross-

examination, Augsback clarified that the DNA on the bedsheet did not come from semen

and that the test results do not determine when or how AG’s DNA got on the bedsheet.

Id. at 556-558. Given that a majority of the DNA test results were either inconclusive or

failed to identify Barnett’s DNA, this is not a case in which the DNA was a determining

factor. While we recognize that the presence of unknown male DNA in AG’s underwear

and the presence of AG’s DNA on Barnett’s bedsheet lends some support to AG’s claim

of abuse, even without the DNA test results there is overwhelming evidence of Barnett’s

guilt. Specifically, the guilty verdict is supported by AG’s testimony, AG’s letters, and the

testimony of AG’s relatives and medical care providers. Therefore any error in allowing

Augsback to testify regarding the DNA testing was harmless beyond a reasonable doubt,

making a retrial unnecessary. See State v. Williams,

,

(1983), quoting Harrington v. California,

,

,

(1969)(“evidence * * * improperly admitted in derogation of a criminal

defendant’s constitutional rights * * * is harmless ‘beyond a reasonable doubt’ if the

remaining evidence alone comprises ‘overwhelming’ proof of defendant’s guilt”). Accord -28-

State v. Jenkins, 2d Dist. Montgomery No. 27701,

.

{¶ 70} Because Augsback’s testimony did not violate the Confrontation Clause and

because the trial court did not abuse its discretion in permitting Augsback to testify as an

expert, Barnett’s Third Assignment of Error is overruled.

Fourth Assignment of Error

{¶ 71} Barnett’s Fourth Assignment of Error is as follows:

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE

CONVICTION FOR SEXUAL BATTERY AND THE VERDICT WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 72} Under his Fourth Assignment of Error, Barnett contends that there was

insufficient evidence to support his conviction for two counts of sexual battery and that

said conviction was against the manifest weight of the evidence.

{¶ 73} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis,

,

(1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.” -29-

(Citations omitted.)

{¶ 74} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating

whether a conviction is against the manifest weight of the evidence, the appellate court

must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier

of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’ ”

, quoting State

v. Martin,

,

(1st Dist. 1983). “The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,

2013 CA 62,

, citing Wilson at ¶ 14.

{¶ 75} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

, *4 (Aug. 22, 1997). However, we may determine which of several competing

inferences suggested by the evidence should be preferred. A judgment of conviction

should be reversed as being against the manifest weight of the evidence only in

exceptional circumstances.

.

{¶ 76} As previously noted, Barnett is challenging his conviction for two counts of

sexual battery. Sexual battery is codified under R.C. 2907.03. Section (A)(5) of that

statute provides: “No person shall engage in sexual conduct with another, not the -30-

spouse of the offender, when * * * [t]he offender is the other person’s natural or adoptive

parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other

person.” R.C. 2907.03(A)(5).

{¶ 77} The term “sexual conduct” is defined, in relevant part, as “vaginal

intercourse between a male and female; * * * and, without privilege to do so, the insertion,

however slight, of any part of the body or any instrument, apparatus, or other object into

the vaginal or anal opening of another. Penetration, however slight, is sufficient to

complete vaginal or anal intercourse.” R.C. 2907.01(A).

{¶ 78} In the present case, it is undisputed that Barnett is AG’s biological father.

The only determinative issue is whether Barnett engaged in sexual conduct with AG. At

trial, AG testified that sometime around the second week of March 2016, when she and

three of her siblings were visiting Barnett for the weekend, Barnett invited AG to sleep

with him in his bed due to AG having back problems and due to AG’s younger sister, E,

wanting to sleep on the couch where AG had been sleeping. AG testified that she went

to Barnett’s bedroom and later woke up in the middle of the night naked in Barnett’s bed

with Barnett’s naked body moving up and down on top of her. AG specifically testified

that Barnett’s penis was inside her vagina and that it was painful. AG testified that she

knew it was happening, but could not do anything to get Barnett to stop because she was

very tired and drowsy due to taking Flexeril for her back.

{¶ 79} AG further testified that a similar incident occurred while she and her

siblings were spending the weekend at Barnett’s house a short time thereafter. AG

testified that she once again tried to sleep on the couch, but that her back was hurting

and that E wanted to sleep on the couch. As a result, AG testified that Barnett again -31-

invited her to sleep in his bed. AG claimed she once again went to sleep in Barnett’s

bed because her younger sister E offered to sleep there and AG wanted to protect E from

Barnett. AG then testified that she once again woke up in the middle of the night naked

with Barnett’s naked body moving up and down on top of her. She also testified that

Barnett’s penis was inside her vagina and that it was painful. AG testified that during this

second incident, she was more awake and tried to push Barnett off her, but that she was

unsuccessful in doing so.

{¶ 80} Upon review, we find the foregoing testimony was sufficient to establish all

elements of sexual battery under R.C. 2907.03(A)(5). AG’s testimony clearly indicates

that Barnett, her biological father, engaged in sexual conduct with her. Accordingly,

Barnett’s sufficiency claim lacks merit.

{¶ 81} Barnett’s manifest weight claim also lacks merit. In support of this claim,

Barnett argues that there was little credible evidence of his guilt. However, in addition to

AG’s testimony detailing the abuse, there was evidence of male DNA in two pairs of AG’s

underwear. Although there was not enough DNA to identify the source of the DNA, the

fact that male DNA was present lends support to AG’s claim of abuse. There was also

evidence of AG’s DNA on Barnett’s bedsheets along with semen. Although Mother’s

DNA was also found on the bedsheets and Mother admitted to being intimate with Barnett

on the bed,3 the fact that AG’s DNA was also present at the very least supports AG’s

claim that she was in Barnett’s bed.

{¶ 82} In addition to the DNA evidence, the first letter AG wrote to Mother and the

3 Mother testified that although they were legally separated, she and Barnett were still trying to work things out with their relationship and were at times intimate. -32-

testimony from the medical professionals who interviewed AG indicated that AG’s

recollection of the incidents in question was fairly consistent. While there were portions

of AG’s testimony that were inconsistent with prior statements she had made during the

investigation,4 “[w]e will not disturb the jury’s conclusions concerning the credibility of

witnesses and their conflicting testimony unless it is so incredible that it defies belief.”

(Citation omitted.) State v. Brady, 2d Dist. Montgomery No. 18682,

,

*5 (Oct. 12, 2001). That is not the case here.

{¶ 83} In support of his manifest weight claim, Barnett also attempts to attack AG’s

credibility using the second letter AG wrote to Mother in which AG offered to recant her

allegations against him. However, AG testified that the letter did not indicate that her

allegations were untrue. According to AG, she wrote the letter because no one in her

family believed that she had been abused and because she was scared. AG read the

letter to the jury and specifically testified that letter did not say that the abuse did not

happen, but that she would recant the allegations to appease her family. “[T]he jury

was free to believe, or disbelieve, any part of the witnesses’ testimony, and a conviction

is not against the manifest weight of the evidence merely because the jury believed the

prosecution’s testimony.” (Citation omitted.) State v. Arega,

,

, ¶ 30 (10th Dist.).

{¶ 84} Based on the foregoing, we do not find that this is the rare case where the

evidence weighed heavily against the conviction and where the jury created a manifest

miscarriage of justice. As previously noted, we also find that the State presented

4 For example, AG testified that she did not remember reporting that Barnett put his hand in her pants when that fact was relayed to Detective Lloyd and the nurse who conducted the sexual assault examination. -33-

sufficient evidence for a reasonable juror to find Barnett guilty of sexual battery.

{¶ 85} For the foregoing reasons, Barnett’s Fourth Assignment of Error is

overruled.

Fifth Assignment of Error

{¶ 86} Barnett’s Fifth Assignment of Error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED

MR. BARNETT TO TEN (10) YEAR[S] IN PRISON AND ORDERED THAT

BOTH COUNTS BE SERVED CONSECUTIVELY.

{¶ 87} Under his Fifth Assignment of Error, Barnett contends that the trial court

“abused its discretion” in sentencing him to consecutive, five-year prison terms for each

of his two sexual battery offenses. For the following reasons, Barnett’s claim lacks merit.

{¶ 88} As a preliminary matter, we note that this court no longer applies an abuse

of discretion standard when reviewing felony sentences. The Supreme Court of Ohio

has made clear that felony sentences are to be reviewed in accordance with the standard

set forth in R.C. 2953.08(G)(2). State v. Marcum,

,

,

, ¶ 10, 16. R.C. 2953.08(G)(2) provides as follows:

The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s

standard for review is not whether the sentencing court abused its

discretion. The appellate court may take any action authorized by this

division if it clearly and convincingly finds either of the following: -34-

(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,

if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 89} Pursuant to the plain language of R.C. 2953.08(G)(2), we may vacate or

modify Barnett’s sentence only if we “determine by clear and convincing evidence that

the record does not support the trial court’s findings under relevant statutes or that the

sentence is otherwise contrary to law.” Marcum at ¶ 1. In this case, the trial court made

findings under one of the “relevant statutes,” specifically, R.C. 2929.14(C)(4).

{¶ 90} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive

sentences if it determines that: (1) consecutive service is necessary to protect the public

from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public; and (3) one or more of the following three findings are

satisfied:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single -35-

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 91} “ ‘[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.’ ” State v. Bittner,

2d Dist. Clark No. 2013-CA-116,

, quoting State v. Bonnell,

,

,

. In this case, the record

establishes that the trial court made all the required consecutive-sentence findings under

R.C. 2929.14(C)(4) at the sentencing hearing and in the sentencing entry. Specifically,

the trial court found that:

Consecutive sentences are necessary to protect the public from future

crime. Consecutive sentences are not disproportionate to the seriousness

of [Barnett’s] conduct and to the danger [Barnett] poses to the public. At

least two of the multiple offenses were committed as part of one or more

course of conduct, and the harm caused by two or more of the multiple

offenses was so great and unusual that no single prison term can

adequately reflect the seriousness of [Barnett’s] conduct.

See Trans. Vol. III (June 28, 2017), p. 750; Termination Entry (June 30, 2017),

Montgomery C.P. No. 2016-CR-1959, Docket No. 243, p. 1. -36-

{¶ 92} “[W]here a trial court properly makes the findings mandated by R.C.

2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does

not support the trial court’s findings.” State v. Withrow, 2d Dist. Clark No. 2015-CA-24,

.

{¶ 93} After a thorough review of the record, we do not clearly and convincingly

find that the record does not support the trial court’s consecutive-sentence findings. The

record indicates that Barnett’s offenses were severe and disturbing given that he sexually

abused his 15-year-old daughter, AG, while she was entrusted into his care and while AG

was under the effect of medication. Barnett engaged in this conduct on two separate

occasions and, according to the trial court, showed a dismissive attitude toward the

offenses. The record further indicates that Barnett tried to cover up his actions by telling

AG that no one would believe her if she disclosed the abuse and that he would kill himself

before going to prison for his actions. Barnett has several children, some of whom are

younger and even more vulnerable than AG, and they, along with the public, are in need

of protection from Barnett. As a result, we cannot say the record does not support the

trial court’s decision to impose consecutive sentences.

{¶ 94} We also do not clearly and convincingly find that Barnett’s 10-year prison

sentence is otherwise contrary to law. See R.C. 2953.08(G)(2)(b). “In general, a

sentence is not contrary to law when it is within the authorized statutory range and the

trial court states that it has considered the principles and purposes of sentencing and the

seriousness and recidivism factors.” State v. Bradley, 2d Dist. Greene No. 2017-CA-64,

, citing State v. Smith, 2d Dist. Montgomery No. 26307, 2016- -37-

Ohio1269, ¶ 25.

{¶ 95} In this case, Barnett’s two five-year prison sentences are within the

authorized statutory range provided in R.C. 2929.14(A)(3)(a). The trial court also stated

at the sentencing hearing that it had considered the purposes and principles of sentencing

in R.C. 2929.11 and weighed the seriousness and recidivism factors in R.C. 2929.12.

Accordingly, Barnett’s prison sentence is not clearly and convincingly contrary to law.

{¶ 96} “[A]n appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” Marcum,

,

,

, at ¶ 23. Here, we find no clear and convincing

evidence establishing that the record does not support Barnett’s sentence. Again, the

record indicates that the nature of Barnett’s offenses were severe and disturbing, as they

were committed against his biological daughter while she was entrusted into his care and

vulnerable due to being on medication that made her somnolent.

{¶ 97} For the foregoing reasons, Barnett’s Fifth Assignment of Error is overruled.

Conclusion

{¶ 98} Having overruled all assignments of error raised by Barnett, the judgment

of the trial court is affirmed.

.............

HALL, J., concurs. -38-

FROELICH, J., dissenting:

{¶ 99} Barnett’s third assignment of error focuses on whether the testimony of BCI

forensic scientist Timothy Augsback violated the Confrontation Clause and whether

Augsback was qualified to testify about certain matters as an expert under Evid.R. 702.

I agree that there was no Confrontation Clause violation and that the trial court did not

abuse its discretion in allowing Augsback to testify as an expert. However, Augsback’s

testimony was objectionable under Evid.R. 703, since he was not permitted to rely on

DNA profiles created by other forensic scientists when those profiles were not admitted

into evidence at trial.

{¶ 100} Evid.R. 703 addresses the bases of an expert’s opinion: “The facts or data

in the particular case upon which an expert bases an opinion or inference may be those

perceived by the expert or admitted in evidence at the hearing.” “Pursuant to Evid.R.

703, an expert may not base his opinion on hearsay but must rely upon his own personal

knowledge of facts and data submitted as evidence in the case.” Dellagnese v. Sorkin,

9th Dist. Summit Nos. 13036 and13229,

, *3 (Mar. 30, 1988).

{¶ 101} The bases for expert opinions under Rule 703 of the Ohio Rules of

Evidence are more limited than permitted under Fed.R.Evid. 703. The federal rule

provides that “[a]n expert may base an opinion on facts or data in the case that the expert

has been made aware of or personally observed. If experts in the particular field would

reasonably rely on those kinds of facts or data in forming an opinion on the subject, they

need not be admissible for the opinion to be admitted. * * *” (Emphasis added.)

“The purpose of [Federal] Rule 703 is to make available to the expert all of

the kinds of things that an expert would normally rely upon in forming an -39-

opinion, without requiring that these be admissible in evidence * * *. In

short, through Rule 703, the law is catching up with the realities of

professional life.” Mannino v. Int’l Mfg. Co.,

(6th Cir.

1981). Thus, “great liberality is allowed the expert in determining the basis

of his opinions,” Eggert v. Meritain Health, Inc.,

(quoting Mannino,

) (alteration omitted), and an expert may

base his opinion on facts or data that would be inadmissible in evidence,

including hearsay evidence, see Kingsley Assocs., Inc. v. Del-Met, Inc.,

(6th Cir. 1990) (quoting Fed. R. Evid. 703).

Ryans v. Koch Foods, LLC, Case No. 1:13-cv-234-SKL,

, *4

(E.D.Tenn. July 16, 2015).

{¶ 102} At trial, Augsback testified about how a DNA comparison is done:

(1) extract DNA from a sample, (2) quantify the amount of DNA present, (3) amplify the

DNA, (4) create a DNA profile, and (5) compare DNA profiles. Augsback stated that,

after the preparation of DNA profiles, he can compare the profiles to determine if they

come from a common source. Augsback acknowledged that, in this case, another

forensic scientist performed the preliminary steps of the analysis and created the DNA

profiles from those samples, where possible.

{¶ 103} In addition to his Confrontation Clause objection, Barnett argued at trial

that Augsback’s testimony raised hearsay issues, because Augsback did not conduct the

DNA tests on the specific items (underwear, bed sheets, etc.) to obtain the DNA profiles

and, instead, relied on other scientists’ data. (Trial Tr. at 437-441). The results of the

tests upon which Augsback relied to render his opinions were not offered or admitted into -40-

evidence at trial. The trial court allowed Augsback’s testimony because it did not violate

the Confrontation Clause. However, the trial court should have sustained the hearsay

objection pursuant to Evid.R. 703.

{¶ 104} Further, although the results of the DNA tests did not conclusively

establish that Barnett committed the offenses, the admission of Augsback’s testimony

was not harmless beyond a reasonable doubt. With respect to the vaginal swab,

Augsback found that “no DNA profile foreign to [AG] was found.” Beyond the comparison

of DNA profiles, Augsback testified, over objection, regarding the male DNA found on

AG’s vaginal swab. He stated that “the test for seminal fluid was inconclusive. So I

could not say whether or not seminal fluid was present” on the vaginal sample. (Trial Tr.

at 528.) Augsback went on to say, however, that “[i]nconclusive for seminal fluid per our

protocol is when there is a result that is a faint, positive result that cannot be documented

photographically, so we cannot show a positive result.” (Trial Tr. at 529.) Augsback

clarified that a “faint positive” is different than a negative result.

{¶ 105} Augsback further testified that AG’s DNA was found on four pairs of

underwear. For three of those pairs of underwear, male DNA was also detected in the

sample, but not enough that he could include or exclude any known individuals. (Trial

Tr. 530-531.) Two samples were tested from Barnett’s fitted sheet; both samples had

Barnett’s DNA. One sheet sample was inconclusive for AG and her mother due to

relatedness, and the second sample included AG and her mother.

{¶ 106} Augsback’s testimony that there was a faint positive on the vaginal swab

from AG – a conclusion reached by another forensic scientist, not Augsback -- was offered

for the truth of the matter asserted, i.e., to establish the existence of male DNA on AG’s -41-

vaginal swab, not merely as a basis for his ultimate conclusion that no comparison could

be made to Barnett. The State further offered Augsback’s testimony of the presence of

AG’s DNA along with Barnett’s DNA on the bed sheet to corroborate AG’s allegation. The

prosecutor argued during closing argument:

And then there’s the DNA. Even without the DNA you've got

enough to convict here. But what did you hear from Tim Augsback? The

vaginal swab that was taken from [AG], during the sexual abuse exam was

tested, and it came back as inconclusive for seminal fluid. Now, what Tim

Augsback said that means, “inconclusive” means there is a faint positive for

seminal fluid. Not strong enough to say for certain, but it was enough to

prompt other testing. And then you have the sheets. These are the

bedsheets from Defendant’s bed, where he had sex with his daughter. And

on one very small area of that sheet the lab was able to identify a mixed

DNA profile. And what were the results of that mixture? It was his sperm

mixed with his daughter's DNA, exactly where she said he had sex with her.

(Trial Tr. 710)

{¶ 107} After defense counsel attempted to minimize the importance of the DNA

evidence during closing argument, the prosecutor argued in rebuttal:

And on that first day when [AG] told her mom about what he did to

her, she had no idea that this defendant’s sperm would be found mixed with

her DNA in the middle of the bed, where she told you this happened. But

that’s what happens when you tell the truth; the physical evidence supports

you. -42-

Now, Defense wants to talk about the DNA and the fact that, well,

Mom’s DNA is found there too. Well, isn’t that ironic, the two women that

this defendant has had sex with, both are mixed with his sperm, in his bed,

in the same spot. That supports what [AG] told you.

And the underwear that were collected, how do we not know those

were [AG’s]? Because what Officer Hayden testified to was this defendant

pointed out [AG’s] pile of clothes. He’s the one who said those were [AG’s]

underwear. And the underwear that [AG] had at her father’s house had

male DNA in them.

You know, and I think it’s important to mention this again, the

defendant’s reaction to all of this. He’s calling [Mother] to explain why his

DNA might be on or in his daughter. He’s calling the detective after he

knows his DNA has been taken to find out the results. Those are the

actions of a man who’s worried that maybe he left some DNA behind.

(Trial Tr. 728-729.)

{¶ 108} Because the trial court erred in admitting the testimony of Augsback and

the error was not harmless, I would reversed Barnett’s conviction and remand for a new

trial.

Copies sent to:

Mathias H. Heck, Jr. Michael J. Scarpelli Christopher A. Deal Hon. Barbara P. Gorman