[Cite as State v. Bennett,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 16-19-03

v.

JAMES E. BENNETT, OPINION

DEFENDANT-APPELLANT.

Appeal from Wyandot County Common Pleas Court Trial Court No. 18-CR-0081

Judgment Affirmed

Date of Decision: December 2, 2019

APPEARANCES:

Joel M. Spitzer for Appellant

Douglas D. Rowland for Appellee Case No. 16-19-03

SHAW, J.

{¶1} Defendant-appellant, James E. Bennett (“Bennett”), brings this appeal

from the June 17, 2019, judgment of the Wyandot County Common Pleas Court

sentencing him to twenty-four months in prison after Bennett was convicted in a

bench trial of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4), a felony

of the third degree. On appeal, Bennett argues that there was insufficient evidence

presented to convict him, that his conviction was against the manifest weight of the

evidence, that his sentence was not supported by the record, that the trial court erred

by failing to hold an evidentiary hearing before quashing a subpoena for tax records

of the child-victim’s parents, and that the trial court erred by permitting “hearsay”

statements at trial.

Background

{¶2} For nearly fifty years Bennett’s wife, Cheri1, ran a childcare business

out of their home. On April 25, 2018, Cheri was the babysitter for the daughter of

Katie L. and Aaron L., A.L, who was four years old. Cheri had been babysitting

A.L. since shortly after A.L. was born. Prior to babysitting A.L., Cheri was the

babysitter for A.L.’s older sister N.L. until N.L. started school. The Bennetts and

1 There are different spellings for Bennett’s wife’s first name included in the record. In the trial transcript, her first name is spelled “Cheri,” so we use that for purposes of this appeal. In the December 6, 2018, hearing, her name was spelled “Sherri.” In Bennett’s brief, he refers to her as “Sherry.” The spelling of her first name makes no difference to this appeal; however, we are aware the record contains a discrepancy.

-2- Case No. 16-19-03

the victim’s family had a lengthy, ongoing relationship that all involved described

as positive prior to the incident leading to this case.

{¶3} After work on April 25, 2018, Katie L. picked up A.L. from the Bennett

residence and brought A.L. home. The family had dinner, and then shortly

thereafter Aaron L. was preparing A.L. for a bath. At that time, Aaron noticed that

A.L. was hesitant and did not want to get into the bathtub. Aaron asked A.L. what

the problem was and A.L. said that “her girl parts hurt.” (Tr. at 16). Aaron noticed

that A.L.’s vagina was visibly red. Aaron asked A.L. why it hurt and she told Aaron

that Bennett “had touched her.” (Id. at 17). Aaron asked if A.L. meant the touching

occurred when Bennett was “helping her on or off the potty” and whether Bennett

had possibly “wiped her too hard,” but A.L. said no. (Id.) Aaron inquired again

regarding whether the touching was bathroom-related and A.L. again said no. A.L.

said that Bennett touched her during naptime while Cheri was upstairs with the

puppies napping. Aaron proceeded to bathe A.L. then told Katie to talk to A.L.

{¶4} Katie went to dry A.L. after the bath and noticed that A.L.’s “bottom”

was red. Katie asked if A.L.’s pants were irritating her and A.L. told Katie that

Bennett had caused the problem. Katie asked how Bennett hurt A.L. and A.L. said

that Bennett “rubbed her very hard with his hands” during nap time. (Tr. at 43).

A.L. reiterated that Cheri was upstairs with the puppies and that the other children

that Cheri was babysitting were sleeping on a quilt. A.L. told Katie that Bennett

-3- Case No. 16-19-03

told her to “scoot down, [that] he started rubbing [her] really hard with his hands

and when he was done, he told [her] to pull [her] pants back up and to go lay back

down.” (Id. at 43-44). Katie indicated that A.L. had never made any type of

accusation like that before.

{¶5} Aaron and Katie contacted a friend who worked with a Sheriff’s

department. They also collected the clothes that A.L. had been wearing that day,

including her underwear, and put them into a bag. On the next day, A.L. was taken

for a sexual assault examination conducted by a sexual assault nurse examiner

(“SANE”). At that time the SANE noted that there was some redness in A.L.’s

genitalia, though she stated that was not uncommon for a four year old. The SANE

asked A.L. if anyone had touched her and A.L. did not respond. A.L. did not make

a disclosure to the SANE, and the SANE stated that A.L. was very shy during the

examination.

{¶6} On May 7, 2018, a forensic interview of A.L. was conducted at

Nationwide Children’s Hospital. During that interview A.L. did not disclose

anything and she indicated that she had not been improperly touched.

{¶7} The clothes that had been collected from A.L. were sent to BCI for

testing. A forensic scientist did a screening test on the underwear for semen and a

separate screening test for “amylase,” which was commonly found in high

concentrations in saliva, but could also be from other bodily fluids such as sweat or

-4- Case No. 16-19-03

urine. While there was no semen detected in A.L.’s underwear, the crotch area of

A.L.’s underwear tested positive for amylase DNA from an unknown male.

{¶8} Bennett was interviewed by the police on June 6, 2018. He stated that

he never helped A.L. use the bathroom and that he had no contact with her private

areas whatsoever. He stated that A.L. went to the bathroom by herself, and that she

used a bathroom downstairs. He willingly gave a DNA sample when asked. DNA

was also taken from A.L.’s father.

{¶9} The DNA analysis revealed that DNA consistent with Bennett’s was

present in both samples taken from A.L.’s underwear. In fact, Bennett was included

in the mixture at a rate rarer than one in one trillion, which the forensic scientist

testified was the highest reportable statistic. Aaron was excluded as a contributor

to the DNA in the crotch region of A.L.’s underwear.

{¶10} Bennett was interviewed a second time after the DNA results returned.

He again denied knowing how it was possible that his DNA would be in A.L.’s

underwear.

{¶11} On July 11, 2018, Bennett was indicted for one count of Gross Sexual

Imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree. Bennett

pled not guilty to the charge.

{¶12} On October 15, 2018, the State filed a “Motion to Allow Child’s

Statements at Trial Pursuant to Evidence Rule 807.” The State contended that

-5- Case No. 16-19-03

Evid.R. 807(A) allowed statements made by a child under twelve describing a

sexual act to be admissible notwithstanding hearsay issues. In order for the

statements to be admissible under Evid.R. 807, the trial court would have to find

that under the totality of the circumstances the statement was reliable and

trustworthy, that the child’s testimony was not reasonably obtainable by the

proponent of the statement, and that there was independent proof of the sexual

activity. The State contended that all requirements of Evid.R. 807 were met in this

case to allow A.L.’s parents to testify to the statements she made to them on April

25, 2018.

{¶13} On October 16, 2018, Bennett filed a motion to suppress A.L.’s

statements, seeking to prevent them from being introduced at trial.

{¶14} A hearing was held on October 30, 2018, and December 6, 2018, for

purposes of determining the admissibility of Evid.R. 807 testimony, and for a

determination on Bennett’s suppression motion. On December 6, 2018, the trial

court conducted an in camera interview of A.L., who was five years old at the time.

Ultimately the trial court found that A.L. was incapable of testifying in this matter.

{¶15} The trial court then heard the testimony of A.L.’s parents and the

arguments of the parties regarding the potential admissibility of A.L.’s statements

to her parents. At the conclusion of the hearing, the trial court determined as

follows.

-6- Case No. 16-19-03

The Court found the disclosure of sexual activity made by A.L.L. to her parents are admissible pursuant to Evidence Rule 807. Therefore, both Aaron [L]. and Katie [L]. are permitted to testify at trial regarding the disclosure made by A.L.L. to her parents. The disclosure was made in close proximity to the alleged sexual activity. The child’s statements to her parents were consistent. The statements given the totality of the circumstances are trustworthy. There is independent proof of sexual activity given the report from the Attorney General’s Office related to the Defendant’s DNA on A.L.L.’s underwear.

(Doc. No. 31). The trial court thus granted the State’s motion pursuant to Evid.R.

807 and denied Bennett’s suppression motion.

{¶16} Subsequently, Bennett filed a written waiver of a jury trial, electing to

proceed to a bench trial.

{¶17} On January 8, 2019, Bennet filed subpoenas duces tecum seeking

Aaron and Katie’s tax records from 2016, 2017, and 2018. Bennett also sought tax

records from Aaron’s construction business. Bennett requested that Katie and

Aaron bring the tax documents to trial.

{¶18} On January 11, 2019, the State filed a “Motion to Quash” the

subpoenas duces tecum issued to Aaron and Katie. The State argued that Crim.R.

17(C) provided the court the authority to quash or modify a subpoena if compliance

was unreasonable or oppressive. The State argued that the information sought was

irrelevant to the trial.

{¶19} On January 17, 2019, Bennett filed a response arguing that he had a

right to confront witnesses and that there was the potential that Aaron and Katie

-7- Case No. 16-19-03

were not as financially stable as they maintained at the suppression hearing. Bennett

argued that if they were not financially stable, they may have given false and

misleading testimony. The defense insinuated that it was possible that Aaron and

Katie owed the Bennetts money, though there was no indication of that at the time

of the request. The defense argued that the tax records were necessary for

impeachment purposes.

{¶20} On January 22, 2019, the trial court filed a judgment entry granting

the State’s motion to quash the subpoenas duces tecum requesting Aaron and Katie

to produce tax records. In its entry on the matter, the trial court stated, “Upon

consideration of same, and for good cause shown, the Court finds said Motion [to

Quash] to be well-taken.” (Doc. No. 54).

{¶21} On February 5, 2019, Bennett filed a notice of alibi stating that he was

golfing from mid-morning to mid-afternoon on April 25, 2018. After the State

requested that Bennett be more specific, Bennett amended his notice of alibi to state

that he was golfing specifically at Bob’s Countryside Golf Course north of Upper

Sandusky.

{¶22} On February 15, 2019, Bennett filed a new amended notice of alibi,

indicating that he was actually golfing at the Bucyrus Country Club/Valley View

Golf Course on the day of the alleged incident.

-8- Case No. 16-19-03

{¶23} The matter proceeded to a bench trial on February 25-26, 2019. The

State presented the testimony of Katie, Aaron, the SANE who examined A.L., the

forensic scientists involved in the DNA testing of A.L.’s underwear, and the

detective who investigated the matter/interviewed Bennett. The DNA results and

the interviews with Bennett were also introduced into evidence.

{¶24} In Bennett’s case-in-chief, he presented the testimony of his wife,

Cheri, who testified that she never left the children alone in a situation where

something could have happened to them. In addition, Cheri testified that she

remembered the day in question because it was her granddaughter’s birthday. Cheri

testified that when her daughter called that day Bennett was not home. Moreover,

Cheri testified that Bennett was a smoker and that he spit often, including into the

toilet. The defense suggested this as a possible reasoning for amylase DNA being

in A.L.’s underwear.

{¶25} Bennett’s daughter also testified that when she called her parents’

residence on April 25, 2018, her father was not at home. In addition, she testified

that she looked up the weather for that day and it was a nice day.

{¶26} Bennett presented the testimony of two people who testified that on

nice days Bennett would golf with them. However, they testified they did not know

if they golfed with Bennett specifically on April 25, 2018. All the witnesses that

-9- Case No. 16-19-03

knew Bennett testified to his good character and that he regularly hacked and spit

due to his smoking habit.

{¶27} Bennett also presented the testimony of the social worker that

interviewed A.L. at Nationwide Children’s Hospital. The social worker testified

that A.L. did not disclose that anything had happened to her in the interview. That

interview was introduced into evidence.

{¶28} In addition, Bennett presented the testimony of a doctor who reviewed

the records in this matter, in particular the forensic interview at Nationwide

Children’s Hospital, and concluded that she did not “see anything in there that is

convincing that [A.L.] was sexually abused from that piece of evidence.” (Tr. at

315). However, she admitted that A.L. might not have understood that the touching

she received, if it happened, was traumatic or sexual abuse.

{¶29} Finally Bennett testified on his own behalf, indicating that he was a

retired Ohio State Highway Patrolman, that he was still active as a court bailiff and

that he had a side job transporting individuals to medical appointments. Bennett

testified that according to his phone records he was around Bucyrus shortly before

12:30 p.m. on the date in question, which was at a time when the children usually

took naps. Bennett testified that he never touched A.L., and that he had never been

alone with her. He testified that he was shocked that the results came back with his

DNA in A.L.’s underwear.

-10- Case No. 16-19-03

{¶30} At the conclusion of the trial, the trial court found Bennett guilty of

Gross Sexual Imposition as charged. Sentencing was set for a later date.

{¶31} On May 30, 2019, Bennett filed a sentencing memorandum arguing in

favor of being placed on community control.

{¶32} On May 31, 2019, Bennett filed a motion for leave to file a motion for

a new trial instanter. He argued that he received ineffective assistance of trial

counsel for his trial counsel advising him to proceed to a bench trial rather than a

jury trial.

{¶33} On May 31, 2019, the case proceeded to sentencing. Prior to

sentencing Bennett, the trial court granted Bennett leave to file his motion for a new

trial instanter, and heard Bennett’s argument on the motion. The trial court then

overruled Bennett’s motion for a new trial. Afterward, the trial court proceeded to

sentencing and Bennett was ordered to serve twenty-four months in prison. A

judgment entry memorializing Bennett’s sentence was filed June 17, 2019. It is

from this judgment that Bennett appeals, asserting the following assignments of

error for our review.

Assignment of Error No. 1 The trial court abused its discretion when it entered a judgment against the appellant when the judgment was not supported by the manifest weight of the evidence.

-11- Case No. 16-19-03

Assignment of Error No. 2 The trial court erred when it failed to grant the defendant’s motion for acquittal as the guilty verdict at the trial court was not supported by sufficient evidence.

Assignment of Error No. 3 The trial court’s sentence of appellant was not supported by the record and was contrary to law.

Assignment of Error No. 4 The trial court abused its discretion when it granted the State’s motion to quash without holding an evidentiary hearing.

Assignment of Error No. 5 The trial court erred when it admitted hearsay statements pursuant to Evidence Rule 807, denying Appellant’s constitutional right to confront his accuser.

{¶34} We elect to address the assignments of error out of the order in which

they were raised.

Fifth Assignment of Error

{¶35} In his fifth assignment of error, Bennett argues that the trial court erred

by permitting the State to present A.L.’s statements to her parents pursuant to

Evid.R. 807(A).

Standard of Review

{¶36} A trial court’s decision to admit statements under Evid.R. 807 is

reviewed under an abuse of discretion standard. State v. Singleton, 8th Dist.

Cuyahoga No. 103478,

, citing In re A.K., 2d Dist.

Montgomery No. 26199,

; State v. Cook, 3d Dist. Allen No. 1-

-12- Case No. 16-19-03

11-66,

. An abuse of discretion implies that the trial court’s

determination was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore,

(1983).

Analysis

{¶37} Generally hearsay is not admissible at trial pursuant to Evid.R. 802.

However, hearsay evidence may be admissible if it falls into one of the enumerated

exceptions found in the Rules of Evidence. One such exception is Evid.R. 807(A),

which allows out-of-court statements made by a child under the age of twelve to be

admitted where those statements describe a sexual act performed by, with, or on the

child. Evidence Rule 807(A) contains specific requirements for admissibility of

such statements, and it reads as follows.

(A) An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual activity performed, or attempted to be performed, by, with, or on the child or describing any act or attempted act of physical harm directed against the child’s person is not excluded as hearsay under Evid.R. 802 if all of the following apply:

(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid.R. 803 and 804. The circumstances must establish that the child was particularly likely to be telling the truth when the statement was made and that the test of cross-examination would add little to the reliability of the statement. In making its determination of the reliability of the statement, the court shall consider all of the circumstances surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement,

-13- Case No. 16-19-03

the mental state of the child, the child’s motive or lack of motive to fabricate, the child’s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement. In making this determination, the court shall not consider whether there is independent proof of the sexual activity or attempted sexual activity, or of the act or attempted act of physical harm directed against the child’s person;

(2) The child’s testimony is not reasonably obtainable by the proponent of the statement;

(3) There is independent proof of the sexual activity or attempted sexual activity, or of the act or attempted act of physical harm directed against the child’s person;

(4) At least ten days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate its trustworthiness.

The Supreme Court of Ohio has described Evid.R. 807(A)’s requirements as a “high

threshold.” State v. Silverman,

,

.

{¶38} In this case, the State filed a motion to present Evid.R. 807 testimony

well prior to the trial, thus clearly complying with Evid.R. 807(A)(4). The trial

court then conducted a hearing on the State’s motion to determine the admissibility

of the statements A.L. made to her mother Katie and her father Aaron.

{¶39} Both Katie and Aaron testified at the hearing regarding the

circumstances surrounding A.L.’s disclosure on April 25, 2018, and regarding the

statements that A.L. made at that time. Following the testimony, and the arguments

-14- Case No. 16-19-03

of the parties, the trial court found that “[t]he disclosure was made in close proximity

to the alleged sexual activity. The child’s statements to her parents were consistent.

The statements given the totality of the circumstances are trustworthy.” (Doc. No.

31). At the hearing the trial court elaborated that there did not appear to be any

motive for fabrication. The trial court thus found that Evid.R. 807(A)(1) was

satisfied.

{¶40} As to the second element of Evid.R. 807, the trial court conducted an

in camera interview of A.L. Following the in camera interview, the trial court stated

that A.L. was shy and willing to help but unable to engage in a discussion. The trial

court found that due to A.L.’s age and “inability to verbalize much in a context of a

courtroom situation, her testimony * * * just wouldn’t produce anything of value.

* * * She just from what I observed there isn’t much hope that she could really be a

witness[.]” (Dec. 6, 2018, Tr. at 5-6). Thus the trial court determined that A.L.’s

testimony could not be obtained, satisfying Evid.R. 807(A)(2).

{¶41} As to the third element of Evid.R. 807, specifically 807(A)(3), which

requires independent proof of the sexual act, the trial court found that Bennett’s

DNA in the crotch region of A.L.’s underwear supplied independent proof in this

matter. Thus after reviewing all of the elements of Evid.R. 807(A), the trial court

found A.L.’s statements to her parents on April 25, 2018, were admissible.

-15- Case No. 16-19-03

{¶42} In our own review of the matter, we cannot find that the trial court

abused its discretion. The trial court held a hearing and addressed each of the

requirements of Evid.R. 807(A) and made appropriate findings supporting its

conclusions that A.L.’s statements to her parents should be admissible at trial.

Where a trial court has conducted a clear analysis of the appropriate elements and

the evidence supports the trial court’s findings, we cannot find that a trial court

abused its discretion in admitting Evid.R. 807(A) testimony. See State v. Cook, 3d

Dist. Allen No. 1-11-66,

(requirements of 807 met where

child’s testimony was not obtainable due to, inter alia, young age, the court

considered the factors of 807(A)(1), the State filed its motion more than 10 days

prior to trial, and independent proof was provided through a confession of the

defendant).

{¶43} Moreover, under similar circumstances to the case sub judice, where a

child was determined to “be unable to speak or relate anything to the court” and

where there was DNA in the child’s underwear to supply independent proof of

sexual contact, a child’s statements have been found to be admissible at trial under

Evid.R. 807(A). State v. Deleon, 6th Dist. Sandusky No. S-12-020, 2013-Ohio-

2029, ¶¶ 24-31. We find this case analogous to Deleon. For all of these reasons we

cannot find that the trial court abused its discretion in this matter. Therefore,

Bennett’s fifth assignment of error is overruled.

-16- Case No. 16-19-03

Second Assignment of Error

{¶44} In Bennett’s second assignment of error, he argues that the trial court

erred by denying his motion for acquittal. He contends that the State presented

insufficient evidence to convict him of Gross Sexual Imposition.

Standard of Review

{¶45} A motion for acquittal tests the sufficiency of the evidence presented

by the State at trial. State v. Disabato, 3d Dist. Union No. 14-18-23, 2019-Ohio-

3542, ¶ 11. Therefore, we review a trial court’s decision denying a motion for

acquittal using the same standard used in a sufficiency of the evidence claim.

quoting State v. Moore, 3d Dist. Union No. 14-08-43,

, citing

State v. Lightner, 3d Dist. Hardin No. 6-08-11,

, citing State v.

Carter,

(1995).

{¶46} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks,

(1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

-17- Case No. 16-19-03

elements of the crime proven beyond a reasonable doubt.”

“In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

,

citing State v. Williams,

,

(1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03,

, citing

State v. Thompkins,

(1997) (“Sufficiency of the evidence is

a test of adequacy rather than credibility or weight of the evidence.”).

Analysis

{¶47} In this case, Bennett was convicted of Gross Sexual Imposition in

violation of R.C. 2907.05(A)(4), which reads as follows.

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

***

(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.

{¶48} In order to convict Bennett at trial of Gross Sexual Imposition, the

State presented testimony that on April 25, 2018, A.L. claimed that Bennett rubbed

her very hard in her private region. A.L.’s parents both noted some redness in the

-18- Case No. 16-19-03

area, as did the SANE the next day. The underwear that was worn by A.L. was

collected and sent for DNA testing. “Amylase” DNA consistent with Bennett’s was

found in the crotch region of A.L.’s underwear.2

{¶49} On appeal, Bennett argues that even when looking at the evidence in

the light most favorable to the State, the State did not establish that any touching of

A.L. was done for the purpose of sexually arousing or gratifying either person.

Bennett argues that such specific intent seeking sexual arousal or gratification had

to be shown pursuant to State v. Dunlap,

,

, in order to support a conviction for Gross Sexual Imposition.

{¶50} Notably, there is no specific requirement for direct testimony

regarding sexual arousal or gratification; rather, in determining whether sexual

contact occurred, the factfinder may infer from the evidence whether a defendant’s

contact with an erogenous zone under R.C. 2907.01(B) was for the purpose of

sexual arousal or gratification. State v. Fears, 8th Dist. Cuyahoga No. 104868,

, appeal not allowed,

,

.

The purpose of the contact may be inferred from the type, nature, and circumstances

of the contact. Fears at ¶ 65, citing State v. Tate, 8th Dist. Cuyahoga No. 98221,

2013–Ohio–370, ¶ 20; Sate v. Cobb,

(9th Dist. 1991).

2 There was testimony that saliva can be used as a lubricant, and that amylase was most prevalent in saliva. However, amylase could be present in other bodily fluids such as sweat.

-19- Case No. 16-19-03

{¶51} In this case, looking at the facts in the light most favorable to the State

as we are directed on review, there was testimony that Bennett rubbed A.L.’s

vaginal region “very hard” and then ordered her to pull her pants up and go join the

other children. A rational trier-of-fact could infer that Bennett’s actions constituted

sexual contact and were for the purposes of sexual arousal or gratification. See State

v. Hodgkin, 1st Dist. Hamilton No. C-170689,

. As A.L.

was clearly under thirteen years of age, we cannot find that the State presented

insufficient evidence in this matter to convict Bennett at trial of Gross Sexual

Imposition. Therefore his second assignment of error is overruled.

First Assignment of Error

{¶52} In Bennett’s first assignment of error, he argues that his conviction for

Gross Sexual Imposition was against the manifest weight of the evidence.

Standard of Review

{¶53} In reviewing whether a verdict was against the manifest weight of the

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting

testimony. State v. Thompkins,

,

. In doing

so, this Court must review the entire record, weigh the evidence and all of the

reasonable inferences, consider the credibility of witnesses and determine whether

in resolving conflicts in the evidence, the factfinder “clearly lost its way and created

-20- Case No. 16-19-03

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.”

{¶54} Nevertheless, a reviewing court must allow the trier-of-fact

appropriate discretion on matters relating to the credibility of the witnesses. State

v. DeHass,

(1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v. Hunter,

,

.

Analysis

{¶55} Bennett presented the testimony of a number of witnesses in his case-

in-chief, and he also testified in his own defense. Bennett maintained that he was

golfing on the day in question, which he contends was corroborated by his phone

records indicating that at one point shortly before 12:30 p.m. he was near Bucyrus.

He argues that his absence in the residence was further corroborated by the

testimony of his wife and daughter that when his daughter called on April 25, 2018,

Bennett was not at home at the time.

{¶56} Furthermore, Bennett argues that he was forthcoming and cooperative

in the investigation, readily meeting with law enforcement and voluntarily providing

a DNA sample. Bennett adamantly denied ever touching A.L., or helping her use

-21- Case No. 16-19-03

the bathroom; however, he surmised that it was possible that his smoking habit,

which caused him to spit often, potentially led to the DNA contamination.3

{¶57} Bennett’s wife also testified that she almost never left the children

alone, especially to take a nap like A.L. had told her parents. In addition, Bennett

emphasized throughout the trial that A.L. did not make any disclosures to medical

professionals or during the forensic interview; rather, she only told her parents of

the purported touching.

{¶58} Notably, all of this evidence was before the trial court, and the trial

court weighed it all in making its finding of guilt in this matter. Following closing

arguments, the trial court conducted an analysis, summarizing some of the testimony

presented and acknowledging some of the points that the defense made. However,

the trial court found that Bennett’s alibi was not dispositive as it did not account for

the entire nap period on April 25, 2018, or the entire day that A.L. was at the

Bennetts’ residence for that matter. The trial court also indicated that it was

specifically swayed by the strength of the “clear” DNA evidence, particularly given

where it was located in the underwear that had been worn by A.L. on the day of the

incident in question. (Tr. at 406).

3 When Bennett was interviewed by the police after the DNA results came back, the police officer mistakenly said that the DNA results were definitive that the substance was saliva. Testimony at trial revealed that amylase could come from other bodily fluids. However, it is possible that Bennett developed his “spitting” defense in light of the fact that the officer made it sound like the DNA present only could have come from saliva, where amylase is found in very high concentrations.

-22- Case No. 16-19-03

{¶59} Moreover, the trial court made its determination after being able to see

and hear the testimony of Bennett himself, and judge his credibility. The factfinder

is in the best position to evaluate credibility of witnesses, and we will not second-

guess the factfinder on these matters. State v. DeHass,

(1967).

{¶60} Given the testimony that was presented, we cannot find that the

factfinder “clearly lost its way” where testimony indicated that: 1) A.L.’s genitals

were red and irritated on the date in question; 2) A.L. made statements to her parents

that Bennett had rubbed her very hard there; 3) Bennett’s DNA was found

specifically in the crotch region of A.L.’s underwear; and 4) Bennett himself stated

that he never assisted A.L. in the bathroom. Based on this evidence, and giving

deference to the trial court’s credibility determinations, we cannot find that

Bennett’s conviction was against the manifest weight of the evidence. Therefore

Bennett’s first assignment of error is overruled.

Third Assignment of Error

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

erred by sentencing him to serve twenty-four months in prison.

Standard of Review

{¶62} Revised Code 2953.08(G)(2) provides that when reviewing felony

sentences, a reviewing court may increase, reduce, or modify a sentence, or it may

-23- Case No. 16-19-03

vacate and remand the matter for resentencing, only if it clearly and convincingly

finds that either the record does not support the sentencing court’s statutory findings

or the sentence is contrary to law. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-

Ohio-3838, ¶ 10, citing State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-

99, ¶ 7.

Analysis

{¶63} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than [a] minimum sentence[].’ ” State

v. Castle, 2d Dist. Clark No. 2016-CA-16,

, quoting State v.

King, 2d Dist. Clark No. 2012-CA-25,

; State v. Freeman, 3d

Dist. Union No. 14-18-16,

. Nevertheless, when exercising its

sentencing discretion, a trial court must consider the statutory policies that apply to

every felony offense, including those set out in R.C. 2929.11 and R.C.

2929.12. State v. Kerns, 3d Dist. Logan No. 8-18-05,

, citing

State v. Mathis,

,

, ¶ 38.

{¶64} Revised Code 2929.11 provides that sentences for a felony shall be

guided by the overriding purposes of felony sentencing: “to protect the public from

future crime by the offender and others and to punish the offender, and to promote

the effective rehabilitation of the offender using the minimum sanctions that the

-24- Case No. 16-19-03

court determines accomplish those purposes without imposing an unnecessary

burden on state of local government resources.” R.C. 2929.11(A). In order to

comply with those purposes and principles, R.C. 2929.12 instructs a trial court to

consider various factors set forth in the statute relating to the seriousness of the

offender’s conduct and to the likelihood of the offender’s recidivism. R.C.

2929.12(A)-(E).

{¶65} In the case sub judice, Bennett was convicted of Gross Sexual

Imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree. Pursuant

to R.C. 2907.05(C)(2), a violation of R.C. 2907.04(A)(4) carries a presumption that

a prison term should be imposed. Revised Code 2929.14(A)(3)(a) states that the

prison term for a violation of R.C. 2907.05 shall be twelve, eighteen, twenty-four,

thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months. Thus the

imposition of a twenty-four month prison sentence in this matter was within the

statutory range. In fact, it was in the lower end of the range. Nevertheless, Bennett

argues that his sentence was clearly and convincingly contrary to law.

{¶66} In fashioning its sentence in this matter, the trial court stated that it had

considered the record, the PSI, the statements made at sentencing, etc. The trial

court analyzed R.C. 2929.11 and the factors in R.C. 2929.12 and stated as follows.

As to the, uh, serious factors that make this offense more serious, the injury was to a victim who, uh, is of a very minor age, to wit four years at the time of the offense. Also, uh, there was, uh, at least some potential, uh, serious physical and psychological harm

-25- Case No. 16-19-03

in that this was a sexual offense. The, uh, on the other side, the offender – uh, well, excuse me, the offender held a public position which makes the offense worse from that perspective and the uh, offender’s relationship, uh, with the victim of course does play into those factors. Those are the factors the Court does find.

Uh, on the other side of the coin, the factors that make this less serious is that, uh, the offender has no criminal record, no juvenile record, uh, he has, uh, led a law-abiding life for all of his life and has served in various, uh, public positions, uh, of respect and, uh, service to the community. Uh, so the Court is considering all of those factors.

This is a sexual offense that is, uh, of a third degree and the potential penalties are one to five years, uh, in prison. The presumption is that prison would be imposed and that can be rebutted and the defense has placed rebuttable evidence before the Court of substantial nature. Nonetheless, the Court does find that the offender is not amenable to community control and that prison is consistent with the purposes and principles of sentencing. The, uh, Court has no pleasure in so finding.

(May 31, 2019, Tr. at 39-40).

{¶67} On appeal, Bennett argues that the trial court erred in its reasoning

when it stated that the conduct here was more serious because Bennett was in a

public position in the community. He argues that under the “seriousness” factors of

R.C. 2929.12(B)(3), for conduct to be more serious the offender had to hold a

position of trust in the community and the offense had to relate to that position.

Bennett claims that the crime in this matter did not relate to his duty as a court bailiff

-26- Case No. 16-19-03

or as a former highway patrolman, thus the trial court erred in finding that conduct

here was more serious because Bennett was in a public position.4

{¶68} The record is clear that the trial court stated that Bennett was in a

public position at sentencing; however, the trial court did not state that the offense

in this matter related to the position. Similarly, the trial court did not specifically

cite R.C. 2929.12(B)(3) when stating that Bennett held a public position. This is

important because there is a separate provision of R.C. 2929.12, specifically (B)(4),

that states conduct is more serious if the offender’s occupation or profession obliged

the offender to prevent the offense or bring others committing it to justice. Being a

bailiff and a former Ohio State Highway Patrolman, this factor arguably could apply

and would not make the trial court’s statement erroneous. Moreover, we note that

the trial court also referred to these same public positions as mitigating factors in

favor of a “less serious” finding for sentencing purposes.

{¶69} Nevertheless, even if we assumed that the trial court was specifically

referring to the seriousness factor in R.C. 2929.12(B)(3) and that the trial court erred

by determining that merely being in a public position was enough to make the

conduct more serious in this case, the prison sentence still would not be clearly and

4 In support of his argument, Bennett cites this Court’s decision in State v. McLemore,

(3d Dist. 2000), wherein we reversed a trial court’s sentence for misapplication of a different sentencing factor, specifically R.C. 2929.12(D)(4). That statutory provision involved an offender demonstrating a pattern of drug or alcohol abuse and the offender’s refusal to acknowledge the pattern. It is thus facially inapplicable to this matter; however, Bennett argues that we should apply the reasoning that if the trial court misstated issues regarding sentencing factors in crafting its sentence, the sentence should be reversed.

-27- Case No. 16-19-03

convincingly contrary to law because there are several other factors noted by the

trial court that support the prison sentence in this matter. See State v. Lamb, 6th

Dist. Wood No. WD-03-054,

(even where trial court

erred in applying R.C. 2929.12(B)(3), as long as the remaining factors are sufficient

to justify a prison sentence, the sentence was not erroneous). Here there were

several factors that made the conduct more serious, namely that the conduct was

exacerbated due to the age of the victim, because it was a sexual offense (R.C.

2929.12(B)(1)), and because the offender’s relationship with the victim facilitated

the offense (R.C. 2929.12(B)(6)).

{¶70} Given that there was a presumption in favor of prison in this matter

and given that there were independent factors to support the trial court’s sentence,

we cannot find that the trial court’s sentence in this matter was clearly and

convincingly contrary to law. Therefore, Bennett’s third assignment of error is

overruled.

Fourth Assignment of Error

{¶71} In Bennett’s fourth assignment of error, he argues that the trial court

erred by granting the State’s motion to quash the subpoenas duces tecum that had

been issued ordering Katie and Aaron to produce their tax records at trial for the

previous three years.

-28- Case No. 16-19-03

Standard of Review

{¶72} Criminal Rule 17(C) gives the trial court discretion to quash or modify

a subpoena, on motion of a party, if compliance would be “unreasonable or

oppressive.” State v. Baker, 12th Dist. Warren No. CA2009-06-079, 2010-Ohio-

1289, ¶ 15, citing State v. Russ, 12th Dist. Clermont No. CA99-07-074,

. Generally a trial court’s determination on a motion to quash a subpoena is

reviewed for an abuse of discretion. State v. Simonis, 3d Dist. Seneca No. 13-14-

05,

; Baker at ¶ 15 citing State v. Strickland, 8th Dist.

Cuyahoga No. 91982,

, ¶ 37.

Analysis

{¶73} In order to understand Bennett’s request for the subpoenas duces

tecum, and the State’s corresponding motion to quash, we must put them in the

proper context in this case. During the December 6, 2018, hearing on the State’s

motion to present Evid.R. 807(A) testimony, the issue of Aaron’s and Katie’s

finances was first brought up by the State presumably in order to show that neither

had a motive to fabricate a story on behalf of A.L. While Aaron was testifying, he

was asked if he or Katie owed the Bennetts money for babysitting services or if they

were behind in their payments. Aaron and Katie indicated that they regularly paid

the Bennetts and that they had no prior issues. In fact, Aaron and Katie both testified

that they had a good relationship with the Bennetts prior to April 25, 2018.

-29- Case No. 16-19-03

{¶74} On cross-examination, Aaron was asked what he profited from his

business in 2017. Aaron responded that he believed it was around $50,000 but his

accountant handled his taxes so he was not certain. That was largely the extent of

testimony regarding financial information from the December 6, 2018, hearing.

{¶75} After the Evid.R. 807 hearing, Bennett filed subpoenas duces tecum

seeking tax records for Aaron and Katie and for Aaron’s business. Bennett

requested that the tax records be brought to the trial so that they could be used for

cross-examination. The State filed a motion to quash Bennett’s subpoenas, arguing

that Bennett was seeking irrelevant information to the matter. Bennett filed a

response, claiming that the State opened the door to financial issues at the prior

hearing, and that there was a possibility that Aaron and Katie had lied about their

financial state. Bennett did not argue at that time that Aaron and Katie owed the

Bennetts money or that they were delinquent in their babysitting payments. He

contended that there was the potential for impeachable information in the tax

records. Without holding a hearing, the trial court summarily granted the State’s

motion to quash.

{¶76} The case then proceeded to trial where there was some testimony

presented regarding the parties’ relationship, including their business relationship.

The testimony did not indicate that Aaron and Katie were behind or delinquent in

their payments for babysitting; in fact, the opposite was true. The testimony

-30- Case No. 16-19-03

indicated that they had timely paid. There was no testimony illustrating any

financial issues relevant to this matter, or that Aaron and Katie had any financial

motive to fabricate statements made by A.L.

{¶77} On appeal, Bennett argues that the trial court abused its discretion by

granting the State’s motion to quash the subpoenas duces tecum without holding a

hearing. He contends that a hearing was mandatory to allow Bennett an opportunity

to demonstrate why the subpoenaed documents were necessary, and that absent a

hearing, reversal was warranted. He cites In re Subpoena Duces Tecum Served

Upon Atty. Potts,

,

, in support.

{¶78} In Potts, the Supreme Court of Ohio constructed a bright line rule that

reads as follows.

Pursuant to Crim.R. 17(C), when deciding a motion to quash a subpoena duces tecum requesting the production of documents prior to trial, a trial court shall hold an evidentiary hearing. At the hearing, which may be held in camera, the proponent of the subpoena must demonstrate that the subpoena is not unreasonable or oppressive by showing “(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’ ” (United States v. Nixon [1974],

, 699–700,

,

, followed.)

Potts at syllabus.

-31- Case No. 16-19-03

{¶79} Bennett argues that based upon Potts, the trial court was required to

hold an evidentiary hearing and to conduct the Nixon analysis adopted in Potts

before quashing the subpoenas. He contends that because the trial court granted the

State’s motion to quash without a hearing, and without any type of Nixon analysis

whatsoever, the trial court abused its discretion in this matter.

{¶80} We recognize that the Potts decision would seem to require a trial

court to hold a hearing and conduct a Nixon analysis before it quashes a subpoena

duces tecum. A number of Ohio Appellate Courts have addressed interlocutory

appeals on this issue, including by third parties, and ordered a trial court to hold a

hearing and conduct an analysis on the matter. See Parma v. Schoonover, 8th Dist.

Cuyahoga No. 100152,

(non-party department of health appealed

denial of its motion to quash subpoena, because there was no hearing or Nixon

analysis, matter reversed); Cincinnati v. Neff, 1st Dist. Hamilton No. C-130411,

(trial court’s failure to conduct an evidentiary hearing before

quashing a subpoena warranted reversal).

{¶81} Fewer appeals exist where a trial court has quashed a subpoena, or

denied a motion to quash a subpoena, without a hearing and the matter proceeded

all the way to a final judgment, which was then appealed. Even Potts dealt with an

ancillary matter, it was not a direct appeal in the criminal case resulting from a final

-32- Case No. 16-19-03

judgment. Thus despite its bright-line rule that appears applicable on its face, Potts

is not an entirely analogous set of circumstances.

{¶82} In State v. Baker, 12th Dist. Warren No. CA2009-06-079, 2010-Ohio-

1289, the Twelfth District Court of Appeals addressed a situation wherein a trial

court failed to hold an evidentiary hearing on a motion to quash, but the case

proceeded (without an interlocutory appeal) with the defendant ultimately pleading

no contest to OVI. Baker at ¶ 23. The defendant was convicted and he appealed,

challenging a suppression issue and the trial court’s failure to hold a hearing on the

motion to quash. The court in Baker overruled the challenge to the suppression

issue, but found that the trial court did err by failing to hold a Potts hearing on the

motion to quash. The court in Baker then vacated the conviction and remanded the

matter with instructions for the trial court to conduct a Potts hearing/Nixon analysis.

Id. at ¶¶ 57-58. Baker stated that if the trial court still rendered the same decision

after holding the Potts hearing and conducting the requisite Nixon analysis, the trial

court could reinstate the conviction. Id. at ¶ 58.

{¶83} In City of Olmsted Falls v. Bowman, 8th Dist. Cuyahoga No. 102129,

, the Eighth District Court of Appeals went even further when the

trial court failed to hold a Potts hearing or conduct a Nixon analysis. The court in

Bowman held that a trial court could not apply the Nixon factors retrospectively,

thus where an appellate court reversed for a Potts hearing on a motion to quash, the

-33- Case No. 16-19-03

conviction had to be vacated, even after a trial had been conducted, and the matter

had to proceed from where the error occurred, effectively granting the defendant a

new trial. Bowman at ¶¶ 15-19.

{¶84} Strictly reading Potts, Baker, or Bowman, these cases would seem to

mandate reversal in this matter, regardless of any analysis of the actual record before

us. However, a case from the Second District Court of Appeals, Miamisburg v.

Rinderle, 2d Dist. Montgomery No. 26094,

, provides a different

alternative. In Rinderle, the appellant challenged the trial court’s decision to quash

a subpoena without a hearing. The trial court held brief arguments on the matter

just before the beginning of trial, which the Rinderle court found could be enough

to satisfy Potts. Nevertheless, the court in Rinderle stated,

But even if the trial court did err in failing to hold a hearing, the error was harmless because the subpoena plainly was improper. Rinderle’s counsel asserted that he wanted to cross examine the prosecutor to be sure she had provided full discovery. (

). In response, the prosecutor represented that she had made her “entire file” available to the defense. (Id. at 8– 9,

). Defense counsel admitted having seen the file at least once. (

). Under these circumstances, and absent any evidence to suggest that the prosecutor had violated her continuing obligation under Crim.R. 16, defense counsel had no right to cross examine the prosecutor for purposes of a “fishing expedition” or what the trial court characterized as “a shotgun accusation that maybe you haven’t received all of the discovery.” (

).

Rinderle at ¶ 20.

-34- Case No. 16-19-03

{¶85} Rinderle allows for the possibility that even where a Potts

hearing/Nixon analysis was not conducted before quashing a subpoena, harmless

error can be found if the subpoena was plainly improper. We feel this is the more

logical application of the rule to the facts before us, particularly in a bench trial such

as the one before us. While a hearing should be held under Potts, where the record

demonstrates that subpoena plainly has no merit, and would have no impact on the

trial whatsoever that already occurred, we will not go so far as to overturn the entire

trial or remand the matter to the trial court to have a superfluous hearing. This is

particularly true where this case does not involve an interlocutory or third-party

appeal.

{¶86} In this case there simply was never any financial malfeasance alleged

to justify a “fishing expedition” to find potential impeachable information of Katie

and Aaron. At trial, the testimony indicated that there was no failure to pay for

babysitting services at any point on behalf of Katie and Aaron and that they were

not behind in their payments. There is absolutely no indication of a financial motive

in this matter whatsoever. To the extent that Katie and Aaron’s finances were

relevant at all in this matter, defense counsel was able to cross-examine Aaron as to

his business earnings at the December 6, 2018 hearing. Katie and Aaron were also

available for cross-examination regarding their payments to the Bennetts at trial, or

their financial status in general. However, a trial court could readily find that

-35- Case No. 16-19-03

extrinsic evidence used for impeachment purposes was inadmissible or irrelevant,

particularly if it pertained to anything other than a prior inconsistent statement.

{¶87} Moreover, we note as to the relevancy of the request for tax records,

Evid.R. 807 refers to the motive of the child in making a disclosure of sexual activity

not the motive of the narrator of the child’s statement. Thus the narrator’s

credibility—Katie and Aaron in this case—and any relevance of financial tax

returns, is addressed under a general evaluation of the narrator’s testimony at trial

and the corresponding rules of impeachment. This would include the rules

pertaining to collateral impeachment.

{¶88} Under these specific factual circumstances, including the fact that the

trial judge considering the ruling on collateral impeachment also serves as the trier-

of-fact in weighing the totality of the evidence, we decline to find reversible error.

Therefore, Bennett’s fourth assignment of error is overruled.

Conclusion

{¶89} For the foregoing reasons Bennett’s assignments of error are overruled

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

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

-36-