[Cite as State v. Rodriguez,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109320 v. :

JONATHAN RODRIGUEZ, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 29, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-643801-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kelly N. Mason, Assistant Prosecuting Attorney, for appellee.

Susan J. Moran, for appellant.

EILEEN A. GALLAGHER, P.J.:

Defendant-appellant Jonathan Rodriguez appeals his convictions for

rape, attempted rape and two counts of gross sexual imposition as well as the

sexually violent predator specifications attached to the rape and attempted rape

counts. We affirm. Background

Rodriguez’s four counts of conviction pertain to one victim, his

stepdaughter, S.V. Rodriguez was found not guilty of 24 other counts of rape, gross

sexual imposition and kidnapping pertaining to S.V., two other stepdaughters and

his biological daughter.

Rodriguez became involved with the children’s mother, B.S., in

Puerto Rico in 2011 before they moved to a house on Hague Avenue in Cleveland,

Ohio in 2012. B.S. has six children, including three with Rodriguez.

S.V. testified that Rodriguez began sexually abusing her when she was

12 years old in Puerto Rico and that the abuse continued after they moved to

Cleveland.

S.V. testified that Rodriguez entered her bedroom in the middle of the

night when she was sleeping. Rodriguez pulled down both her pants and underwear

and proceeded to touch and digitally penetrate her vagina with one hand, while

touching his penis with his other. Rodriguez did these acts multiple times over the

course of several years. Rodriguez told her he was in love with her and threatened

that he would harm S.V., her sisters and their mother if S.V. told anybody about

what he did to her. S.V. did not disclose this abuse to police until years later.

Assignments of Error

Rodriguez asserts the following five assignments of error:

1. The trial court erred in denying appellant’s motion for acquittal pursuant to Crim.R. 29 when the state failed to submit sufficient evidence for the crimes charged, denying the appellant due process. 2. Appellant’s convictions are against the manifest weight of the evidence.

3. Appellant was denied due process and a fair and impartial trial as guaranteed by the 5th, 6th, and 14th Amendments of the U.S. Constitution and Article I § 16 of the Ohio Constitution based on prosecutorial misconduct.

4. The trial court deprived the appellant the right to due process and right to a fair trial when it prevented the defense the ability confront [sic] his accusers.

5. The trial court erred in allowing several instances of improper character evidence and other act evidence depriving the appellant the right to due process and a fair trial.

Sufficiency of the Evidence

In his first assignment of error, Rodriguez claims that the state

presented insufficient evidence to sustain his convictions for attempted rape and the

sexually violent predator specification.

A challenge to the sufficiency of the evidence supporting a conviction

requires a determination as to whether the state met its burden of production at

trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048,

. When

reviewing sufficiency of the evidence, an appellate court must determine “‘whether,

after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.’” State v. Leonard,

,

,

, ¶ 77, quoting State v. Jenks,

,

(1991),

paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not

assess whether the evidence is to be believed but whether, if believed, the evidence admitted at trial would support a conviction beyond a reasonable doubt. State v.

Starks, 8th Dist. Cuyahoga No. 91682,

, ¶ 25; Jenks at paragraph

two of the syllabus.

Attempted Rape

Rodriguez was convicted of attempted rape in violation of R.C.

2923.02 and 2907.02(A)(2). R.C. 2907.02(A)(2) provides: “[n]o person shall

engage in sexual conduct with another when the offender purposely compels the

other person to submit by force or threat of force.”

R.C. 2923.02(A) provides: “[n]o person, purposely or knowingly, and

when purpose or knowledge is sufficient culpability for the commission of an

offense, shall engage in conduct that, if successful, would constitute or result in the

offense.”

Sexual conduct is defined in R.C. 2907.01(A) as:

[V]aginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; 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.

The Ohio Supreme Court has held that a criminal attempt is an act or

omission constituting a substantial step toward committing a crime. State v.

Woods,

,

(1976), overruled in part on other

grounds, State v. Downs,

,

(1977). The act

“must be strongly corroborative of the actor’s criminal purpose” in order to constitute a substantial step toward the act, but need not be the last proximate act

prior to the commission of the offense.

at paragraph one of the syllabus. This

standard directs attention to overt acts of the defendant that “convincingly

demonstrate” the defendant’s firm purpose to commit the offense.

.

(Citations omitted.) “There must be evidence indicating purpose to commit rape

instead of some other sex offense, such as gross sexual imposition, R.C. 2907.05,

which requires only sexual contact.” State v. Davis,

,

(1996).

S.V. described the attempted rape at issue here as follows:

“(Interpreter) I remember that I was waking — I woke up, I was getting ready to get up, and I heard him coming out of my mother’s room and I heard the steps, and then he walked into the room. The door — the lock in my room didn’t work, so we couldn’t lock it. We could just close it. So that’s why I didn’t lock the door. And then he enter in the room and I had the comforter, I was wrapped in the comforter, and he tried to remove the comforter from me. I was wrapped in the comforter and he tried — he struggled. He wanted to take the comforter away from me, and I hold onto the comforter and I said no. I was crying. I was hysterical. I was asking him to leave the room. He said if you don’t let me do it, it’s going to be worse for you. And he didn’t leave, saying you’re going to see what’s going to happen. That’s when he left the room.

Rodriguez argues that from this testimony it is impossible to conclude that he was

attempting to rape S.V. Essentially, he argues that there is no way to conclude that

he was attempting sexual conduct as opposed to sexual contact. We disagree.

During her direct examination, S.V. testified in detail about other

instances over time in which Rodriguez assaulted her: Q. Okay. So I want to go back. We’re talking about — we know what room we’re talking about now, and you said something happened in the middle of the night. Can you tell us what happened?

A. (Interpreter) Yes.

Q. Okay. What happened?

A. (Interpreter) When I was sleeping in the room, Jonathan will walk into the room, and I will wake up very scared and he will just touch me in my parts.

Q. Would you wake up before he touched you?

A. (Interpreter) Because I knew that he would walk into the room at any time, I will hear. I was already with that in my head that will hear the steps in the room. And every time I heard the steps I will wake up very scared.

Q. Because this wasn’t the first time that this happened, right?

A. (Interpreter) Correct.

Q. Okay. So you said he would come into the room and he would touch your parts. Can you be more specific about what he touched?

A. (Interpreter) My vagina.

Q. Okay. And what would he touch your vagina with?

A. (Interpreter) He penetrated his fingers.

***

Q. So you just told us about a time you remember something happening in this bedroom [at your home on Hague Avenue]. Do you remember other times where Jonathan touched you when you were living in the United States?

A. (Interpreter) Well, several times at the same house.

Q. Okay. You said several times at the same house.

Was it in the same room or in a different room? A. (Interpreter) In the same room.

***

Q. So the time we talked about yesterday, was that the first time that Jonathan touched you on Hague?

A. (Interpreter) Yes.

Q. Okay. And you told us yesterday, I think, that there were more times that this happened in that Hague house; is that right?

A. (Interpreter) Yes, that’s correct, several times.

Q. Okay. So this happened several more times. And how often did you tell us it would happen when you were in the Hague house?

A. (Interpreter) Let’s say that in a month, probably two times. It didn’t happen that many times per month.

From this evidence, viewed in a light most favorable to the

prosecution, we conclude that Rodriguez’s attempted rape conviction is supported

by sufficient evidence. In light of Rodriguez’s repeated history of entering S.V.’s

room and digitally penetrating her, there was sufficient evidence to infer that it was

his intention to do the same during the event described.

Sexually Violent Predator Specifications

Rodriguez argues that there was insufficient evidence presented to

substantiate the sexually violent predator specifications attached to the rape and

attempted rape counts. The core of Rodriguez’s argument is that it was improper

for the jury to consider as evidence establishing the sexually violent predator

specifications, any evidence presented in support of the counts for which he was

found not guilty. R.C. 2971.01(H) provides:

(1) “Sexually violent predator” means a person who, on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses.

(2) For purposes of division (H)(1) of this section, any of the following factors may be considered as evidence tending to indicate that there is a likelihood that the person will engage in the future in one or more sexually violent offenses:

(a) The person has been convicted two or more times, in separate criminal actions, of a sexually oriented offense or a child-victim oriented offense. For purposes of this division, convictions that result from or are connected with the same act or result from offenses committed at the same time are one conviction, and a conviction set aside pursuant to law is not a conviction.

(b) The person has a documented history from childhood, into the juvenile developmental years, that exhibits sexually deviant behavior.

(c) Available information or evidence suggests that the person chronically commits offenses with a sexual motivation.

(d) The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims.

(e) The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim’s life was in jeopardy.

(f) Any other relevant evidence.

“R.C. 2971.01(H)(2) provides a nonexclusive list of factors that the

trial court ‘may’ use in determining that a defendant is likely to engage in sexually

violent offenses in the future, and the trial court is free to consider ‘any other

relevant evidence’ as provided in the catchall provision of R.C. 2971.01(H)(2)(f).”

State v. Belle, 8th Dist. Cuyahoga Nos. 107046 and 107300,

, quoting State v. T.E.H., 10th Dist. Franklin Nos. 16AP-384, 16AP-385 and 16AP-

386,

; see also State v. A.M., 8th Dist. Cuyahoga No. 106400,

(“Under R.C. 2971.01(H)(1), as amended in 2005, a sexually

violent offense in the current indictment can be the basis for a sexually violent

predator specification.”).

As such, the jury could permissibly consider evidence pertaining to

counts for which Rodriguez was ultimately found not guilty in determining whether

he was a sexually violent predator. Viewing the evidence in a light most favorable to

the prosecution, we reject Rodriguez’s argument that there was insufficient evidence

to support the sexually violent predator specifications.

We overrule this assignment of error.

Manifest Weight of the Evidence

In his second assignment of error, Rodriguez argues that his

convictions are against the manifest weight of the evidence.

“Weight of the evidence concerns ‘the inclination of the greater

amount of credible evidence, offered at trial, to support one side of the issue rather

than the other.’” (Emphasis deleted.) State v. Thompkins,

,

(1997), quoting Black’s Law Dictionary 1594 (6th Ed. 1990). A

manifest weight challenge attacks the credibility of the evidence presented and

questions whether the prosecution met its burden of persuasion at trial. State v.

Whitsett, 8th Dist. Cuyahoga No. 101182,

. It “addresses the

evidence’s effect of inducing belief,” i.e., whether the state’s or the defendant’s evidence is more persuasive. State v. Wilson,

,

,

.

When considering an appellant’s claim that a conviction is against the

manifest weight of the evidence, the appellate court functions as a “thirteenth juror”

and may disagree “with the factfinder’s resolution of * * * conflicting testimony.”

, citing Tibbs v. Florida,

,

,

(1982). Evaluating a challenge to the weight of the evidence requires this court

to review the record, weigh the evidence and reasonable inferences, consider witness

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

fact clearly lost its way and thereby created a manifest miscarriage of justice.

Reversal on the weight of the evidence is reserved for the “‘exceptional case in which

the evidence weighs heavily against the conviction.’”

quoting State v. Martin,

,

(1st Dist. 1983).

Sexually Violent Predator Specifications

Rodriguez argues that his sexually violent predator specification

convictions are against the manifest weight of the evidence. Rodriguez redeploys

his sufficiency argument as a basis for concluding that the convictions are against

the manifest weight of the evidence. He claims that, absent consideration of the

evidence pertaining to counts for which he was found not guilty, the evidence did

not “amount to ‘chronically’ committing offenses with a sexual motivation” as

required by statute. He claims that there is nothing in his past suggesting he is likely to reoffend and that this is further supported by the presentence investigation

report.

Rodriguez does not identify any conflicting evidence that, in

resolving, the jury lost its way. This is not the exceptional case in which the evidence

weighs heavily against conviction. The sexually violent predator specifications are

not against the manifest weight of the evidence.

Rape, Attempted Rape and Gross Sexual Imposition

Rodriguez asserts that his convictions for rape, attempted rape and

gross sexual imposition “rests on the testimony of [S.V.] alone, as there was no

physical evidence and no corroborating evidence.” Rodriguez claims that S.V.’s

testimony is against the weight of the evidence “in light of the inconsistencies,

motivation to be untruthful, and other errors.”

To substantiate his claim, Rodriguez refers to portions of B.S.’s

testimony which he claims are inconsistent with her daughter S.V.’s testimony. For

example, B.S. testified that she had a close relationship with her children and

believed that they confided in her. She claimed that she was always with her children

and observed their interactions with Rodriguez and that she never observed any

“strange” interactions. She also claimed that the allegations against Rodriguez could

not be true in light of the fact that the house was full of people. B.S. also claimed

that S.V.’s reason for going to Puerto Rico was not to flee Rodriguez’s abuse, but

rather she was “already finished school” and “asked [her] to send her to Puerto Rico

and enroll her in school.” Further, in support of his manifest weight claim, Rodriguez attacks

S.V.’s credibility. He asserts that S.V.’s claims are suspect to the extent that she did

not disclose the abuse until roughly one year after police began investigating her

sisters’ abuse claims. He also claims that there was inconsistency in S.V.’s

recollection of the time frame of the abuse. For example, in some places S.V. claimed

the abuse occurred when she was between 12 and 14 years old. Elsewhere she

claimed abuse happened when she was 15. Rodriguez also notes that at one point in

S.V.’s testimony, she claimed that Rodriguez touched only her vagina but she also

claimed that he touched her breast. Rodriguez also challenges S.V.’s testimony to

the extent that she was unable to remember the exact number of times he abused

her, claiming that her testimony “seems suspect in light of the nature of the conduct

and the likely impact the conduct would have on a person who was allegedly being

assaulted.” Rodriguez concludes that “[i]f this were true, it can be argued that [S.V.]

would have had a more vivid recollection of events.”

Regardless of whether there is some conflict between B.S.’s testimony

and S.V.’s testimony, there is no material inconsistency as to the evidence that

Rodriguez committed the actual crimes of conviction. See State v. Hill, 8th Dist.

Cuyahoga No. 99819,

(“A conviction is not against the manifest

weight of the evidence solely because the jury heard inconsistent testimony.”). As to

S.V.’s testimony about being a child who was sexually abused by her stepfather over

the course of several years, the jury was free to reject any portion that was

inconsistent, problematic or otherwise unbelievable. State v. Shutes, 8th Dist. Cuyahoga No. 105694,

(“The trier of fact may take note of any

inconsistencies and resolve them accordingly, choosing to believe all, none, or some

of a witness’s testimony.”). Rodriguez cannot manufacture a manifest weight of the

evidence issue from the fact that the convictions are based solely upon S.V.’s

testimony and are not corroborated by other evidence. See State v. Daniels, 8th

Dist. Cuyahoga No. 92563,

, ¶ 58 (“There is no requirement that a

rape victim’s testimony be corroborated as a condition precedent to conviction.”);

see also State v. Gunter, 8th Dist. Cuyahoga No. 95775,

(“Ohio

courts have consistently held that a rape conviction may rest solely on the victim’s

testimony, if believed.”).

Here, the jury heard the testimony, including S.V.’s account, and it

chose to believe her regarding the counts of rape, attempted rape and two counts of

gross sexual imposition. Based on the record before us we cannot say that the trier

of fact clearly lost its way. As such, we find the convictions are not against the

manifest weight of the evidence. We overrule this assignment of error.

Prosecutorial Misconduct

In his third assignment of error, Rodriguez claims he was denied a

fair trial because of prosecutorial misconduct. He asserts that there were three such

instances. First, he claims it was improper for the state to argue to the jury, for

purposes of the sexually violent predator specifications, that it should consider

evidence of counts for which he was found not guilty. Second, he claims the state

impermissibly revealed that Rodriguez was incarcerated during the trial. Third, Rodriguez claims the state impermissibly cross-examined him regarding his past

sexual activity.

“The test for prosecutorial misconduct is whether the remarks were

improper and, if so, whether they prejudicially affected the accused’s substantial

rights.” State v. Ford,

,

,

, ¶ 364,

citing State v. Smith,

,

(1984). “The touchstone

of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”

quoting Smith v. Phillips,

,

,

(1982). “A

prosecutor’s conduct during trial cannot be grounds for error unless the conduct

deprives the defendant of a fair trial.” State v. Marshall, 8th Dist. Cuyahoga No.

100736,

, ¶ 68, citing State v. Apanovitch,

,

(1987). “‘Given the myriad safeguards provided to assure a fair trial, and

taking into account the reality of the human fallibility of the participants, there can

be no such thing as an error-free, perfect trial, and * * * the Constitution does not

guarantee such a trial.’” State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-

1192, ¶ 40, quoting United States v. Hasting,

,

,

(1983) (emphasis deleted).

Based on Rodriguez’s failure to object to the alleged misconduct

during trial, we are limited in our review to plain error. See Marshall at ¶ 68.

Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” The

plain error rule is to be invoked only under “exceptional circumstances to avoid a manifest miscarriage of justice.” Chagrin Falls v. Ptak, 8th Dist. Cuyahoga No.

109342,

, citing State v. Long,

,

(1987). There is no plain error where, absent the error, the outcome of

trial clearly would have been different.

Sexually Violent Predator Specifications

Rodriguez claims that it was misconduct for the state to argue that the

jury should consider as evidence for the sexually violent predator specifications,

evidence that pertained to the counts for which he was found not guilty. As

discussed previously, it is permissible for a jury to consider “any other relevant

evidence.” State v. Belle, 8th Dist. Cuyahoga Nos. 107046 and 107300, 2019-Ohio-

787, ¶ 36. This includes considering “a sexually violent offense in the current

indictment” as the basis for a sexually violent predator specification. State v. A.M.,

8th Dist. Cuyahoga No. 106400,

. There is no merit to this

challenge because Rodriguez fails to demonstrate prejudice.

Mention of Incarceration During Trial

Rodriguez argues that it was misconduct for the prosecutor to reveal

to the jury that he was incarcerated at the time of trial. As the basis of this claim,

Rodriguez refers to his cross-examination as to the contents of a letter he wrote to

the court:

Q. And is that the letter that you wrote to the Judge on July 5th of 2019?

A. (Interpreter) Yes. Q. Okay. And you wrote in this letter that when you were in jail, one of the corporals broke your leg. Do you remember saying that to the Judge?

A. (Interpreter) No, he didn’t break my leg. I didn’t break my leg. What happened is that they threw me on the ground, and when he threw me on the ground it hurt my knee when he tried to put me in the floor. And also the way he threw me on the ground, he broke my tooth.

Q. Okay. My question was, do you remember writing in the letter that the corporal broke your leg?

This court has observed that verbal reference to a defendant’s jail

status is similar to wearing prison or jail clothing to the extent that it “erodes the

presumption of innocence.” State v. Watters, 8th Dist. Cuyahoga No. 82451, 2004-

Ohio-2405, ¶ 14, citing State v. Heckler, 4th Dist. Pickaway No. 93CA10,

(July 15, 1994). “Whether the reference is visual or verbal, the

potential for prejudice is the same.” Id. at ¶ 15.

However, the improprieties of a reference to a defendant’s jail status

aside, where the question and answer do not affect the outcome of the trial, there is

no unjust prejudice. See id. at ¶16; see also State v. Sharp, 12th Dist. Butler No.

CA2009-09-236,

, ¶ 107 (“[A]ppellant’s custodial status does not

have the same impact as wearing prison clothing throughout a trial.”); see also State

v. Gaona, 5th Dist. Licking No. 11 CA 61,

(“single isolated

comment about the presence of deputies falls well short of [defendant appearing in

jail clothing]”); see also Chagrin Falls v. Ptak, 8th Dist. Cuyahoga No. 109342,

, quoting State v. Hill,

,

(1996) (“‘[I]solated comments by a prosecutor are not to be taken out of context and be given their most damaging meaning,’ and we must review the

challenged statements within the context of the entire trial.”).

Here, Rodriguez does not demonstrate that unjust prejudice resulted

from the prosecutor’s reference to his jail status. To the contrary, his claim is merely

that the reference “may have influenced the jury.”

We note that during a subsequent point in Rodriguez’s testimony

during cross-examination, Rodriguez stated that he was incarcerated:

Q. Okay. Are you dating anyone currently?

A. (Interpreter) I’m not going out with anyone now because I’m in prison here * * *.

There is additional indication that Rodriguez was not prejudiced by the prosecutor’s

mention of his jail status. Although Rodriguez was found guilty of four counts, the

jury acquitted him of the remaining 24 counts. Compare State v. Nitsche, 2016-

Ohio-3170,

, ¶ 95 (8th Dist.), quoting State v. Banks, 8th Dist.

Cuyahoga,

,

, ¶ 64 (“[D]efendant was ‘unable to show

that he was prejudiced by the trial court’s refusal to sever his offenses’ where he was

acquitted of some charges and convicted of lesser offense in others.”).

Past Sexual Activity

Rodriguez argues the third instance of prosecutorial misconduct

occurred during his cross-examination where, over objection, the state inquired into

his past sexual activity.

In general, and subject to specified exceptions that do not pertain to

this case, evidence of specific instances of a defendant’s sexual activity are inadmissible in prosecutions for rape, in violation of R.C. 2907.02 and gross sexual

imposition, in violation of R.C. 2907.05. State v. Jeffries,

, 2020-

Ohio-1539,

. However, a defendant waives this statutory

prohibition after interjecting or “opening the door” to the issue of his own prior

sexual activity. State v. Howell, 2d Dist. Greene No. 2019-CA-7,

, citing State v. Gauntt, 8th Dist. Cuyahoga No. 63792,

,

, 4 (Sept. 30, 1993).

During Rodriguez’s direct examination, counsel elicited the following

regarding Rodriguez’s past sexual activity:

Q. So, Mr. [Rodriguez], I think we’ve established that you have — you had problems with [the victim’s mother]?

A. (Interpreter) Yes, plenty.

***

Q. So did there come time when that friction in your relationship caused you to a have relationships with other people?

A. (Interpreter) In 2016, [another woman] texted me. That was in 2016. I had a very friendly communication with her without her knowing, [the victim’s mother] knowing about it. Yes, I did sleep with her.

Q. And what?

A. (Interpreter) I did sleep with her.

Q. Okay. So was there more than that person?

***

A. (Interpreter) There was another girl I just dated without anybody knowing, and I’m very ashamed of saying this.

Q. Okay. Anyone else? A. (Interpreter) I just fooled around with three other women. I was just experimenting my life and my youth.

During Rodriguez’s cross-examination, the state inquired about these

women as well as other women with whom he had been involved. Because

Rodriguez had previously offered evidence regarding his past sexual history, the

state did not violate the statutory limitation regarding specific instances of his sexual

activity with its inquiry. See Howell at ¶ 29.

We overrule the third assignment of error.

Impeachment Evidence

In his fourth assignment of error, Rodriguez claims that the trial court

made several erroneous rulings regarding his attempts to impeach witnesses on

cross-examination.

“It is well settled that ‘the trial court has broad discretion in the

admission of evidence, and unless it has clearly abused its discretion and the

defendant has been materially prejudiced thereby, an appellate court should not

disturb the decision of the trial court.’” State v. Barnes,

, 23, 2002-

Ohio-68,

, quoting State v. Issa,

,

(2001).

Impeaching K.R. with Police Statement

Rodriguez argues that the trial court erred by prohibiting him from

attempting to impeach K.R. with a prior consistent statement. Rodriguez asserts

that, pursuant to Evid.R. 801(D)(2), he should have been able to cross-examine K.R. with her statement to police regarding consistencies between it and her testimony

because it constituted an admission by a party opponent. We disagree.

We observe that Rodriguez was acquitted of all of the counts

pertaining to K.R. As such, he fails to demonstrate any prejudice resulted from not

being able to use K.R.’s police statement to impeach her.

Nevertheless, K.R. was an alleged victim, not a party to the case. By

its own terms, Evid.R. 801(D)(2) is confined to admissions by party-opponents. See

State v. Ingram, 12th Dist. Butler No. CA2006-01-012,

(“[A]n

alleged victim who testifies as a witness for the state is not a party-opponent within

the meaning of Evid.R. 801(D)(2).”); State v. Williams, 7th Dist. Mahoning No. 09

MA 11,

(“[A] victim in a criminal case is not a party-opponent

for purposes of Evid.R. 801(D)(2).”).

We find no abuse of discretion.

Impeaching S.V. With Prior Inconsistent Statements

Rodriguez argues that the trial court erred by prohibiting him from

attempting to impeach S.V. with a prior inconsistent statement. Rodriguez does not

provide citation to any portion of the police statement and he does not provide

citation to the portion of S.V.’s testimony that is allegedly inconsistent. Instead,

Rodriguez cites a portion of the trial transcript where his counsel discussed the

statement with the court at a sidebar. After that discussion, the court concluded “it

can’t just be a difference. It has to be a material difference.” Rodriguez’s counsel responded “[y]eah, that’s fine. I don’t need to impeach her with the transcript on

that one.”

Rodriguez asserts this was error because S.V. “used a very different

tone” in her statement to police as compared to her testimony during direct

examination. However, he neither claims nor cites any rule, statute or other

authority that the court violated or otherwise demonstrates that the court abused its

discretion.

Rodriguez also asserts that material differences aside, he should have

been able to question S.V. about her police statement pursuant to Evid.R. 607 and

801. He does not, however, develop any argument in support of this assertion.

“‘[I]t is not the duty of this Court to develop an argument in support

of an assignment of error if one exists.’” State v. Collins, 8th Dist. Cuyahoga No.

89668,

, quoting State v. Franklin, 9th Dist. Summit No.

22771,

. “An appellate court is not obliged to construct or

develop arguments to support an appellant’s assignment of error and ‘will not “guess

at undeveloped claims on appeal.”’” State v. Jacinto,

,

(8th Dist.).

Impeachment by Omission

Rodriguez claims he was prejudiced by the court prohibiting him

from cross-examining witnesses with prior statements “utilizing impeachment by

omission.” During trial, Rodriguez sought to impeach witnesses by comparing

specific details included in their trial testimony that they did not mention when

interviewed by police.

This court has observed that a witness’ testimony at trial that includes

details that were not included in a police interview does not necessarily constitute a

material inconsistency. See, e.g., State v. Hartford,

,

(8th Dist. 1984). “‘Certain details related to the police may naturally not

be brought up on direct examination and some details omitted from a witness

statement may naturally crop up for the first time at trial, and it is not appropriate

to consider the omission of such details to be “inconsistencies.”’” State v. Kenney,

8th Dist. Cuyahoga No. 80653,

, quoting State v. Hartford,

,

(8th Dist. 1984).

Here, Rodriguez argues that he should have been able to impeach S.V.

to the extent that she testified that she went back to Puerto Rico to escape

Rodriguez’s abuse but failed to indicate that to the police during her interview. He

also claims that he should have been able to impeach one of the stepsisters to the

extent that she testified as to her awareness of her sisters being abused by Rodriguez

but failed to disclose this to police during her interview.

Rodriguez argues that this case is similar to State v. Blackman, 8th

Dist. Cuyahoga No. 88608,

. In Blackman, this court found no

error in the state cross-examining the defendant regarding omissions from a written

statement he prepared and gave to police: By giving the police a written statement, appellant left himself open to impeachment on any matters of importance that were omitted from that statement. On cross-examination, he admitted that he did not inform the police that the victim had repeatedly tried to contact him after he moved out of her mother’s house. This is the sort of significant detail which would have been natural to mention in the prior statement, and hence was subject to impeachment because of its omission.

Id., at ¶ 22.

We find that Blackman is distinguishable. Initially, we note that S.V.

and A.R. were children who claimed to be victims of sexual assault, not defendants

in a criminal prosecution. They did not give the police a written statement. Instead,

the girls were asked questions by the police. Moreover, the police did not specifically

ask S.V. if Rodriguez’s abuse was the reason she went to Puerto Rico and they did

not ask A.R. whether she was aware her sisters were being abused by him.

Rodriguez additionally makes the unsupported assertion that Evid.R.

613(C) provides for “[i]mpeachment by omission.” Evid.R. 613(C) provides:

During examination of a witness, conduct of the witness inconsistent with the witness’s testimony may be shown to impeach. If offered for the sole purpose of impeaching the witness’s testimony, extrinsic evidence of the prior inconsistent conduct is admissible under the same circumstances as provided for prior inconsistent statements by Evid.R. 613(B)(2).

Assuming for the moment that Evid.R. 613(C) does apply here, we

nevertheless reject Rodriguez’s assertion to the extent that the girls’ testimony

during trial is not inconsistent with answers they did not give to questions they were

not asked.

We find no abuse of discretion. Rule of Completeness

Rodriguez claims that the trial court violated Evid.R. 106 during the

following sidebar with counsel during the detective’s cross-examination:

[Prosecutor]: Judge, just a heads up for the court reporter, based on where the cross-examination goes, I may ask to play the full statements of the girls on redirect.

The Court: That’s the other thing is that when you introduce portions of witness statements, the rule of completion allows the entire one to come in.

[Counsel]: I understand. I do understand.

Evid.R. 106 provides:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it.

“The overriding purpose of the rule is to prevent adverse parties from taking

statements or writings out of context and distorting them.” Perry v. Univ. Hosps.,

8th Dist. Cuyahoga No. 83034,

; State v. Barna, 9th Dist.

Lorain No. 93CA005564,

(Nov. 3, 1993).

Here, although Rodriguez proceeded to cross-examine the detective,

making specific reference to the girl’s statements to police, the state did not

subsequently seek to introduce additional portions of those statements. As such, the

court never determined whether any such portion was admissible under Evid.R. 106

and thus, did not violate the rule. We find no abuse of discretion.

Accordingly, we overrule the fourth assignment of error. Improper Character and Other Acts Evidence

In his fifth assignment of error, Rodriguez argues that the state

improperly presented instances of character and other acts evidence by introducing

evidence of his domestic violence convictions as well as evidence from his social

media accounts.

Domestic Violence

Rodriguez argues that the trial court erred by permitting a detective

to testify regarding two incidents of domestic violence involving the appellant and

the girl’s mother, B.S. He claims it was also error for the trial court to permit B.S. to

testify that Rodriguez physically abused her and pointed a gun at her as well as to

allow the state to introduce a photograph of their house showing a bullet hole in the

ceiling.

However, during B.S.’s cross-examination, Rodriguez’s counsel

engaged in the following line of questioning regarding their relationship:

Q. So, ma’am, you were with [Rodriguez] for I believe eight years; is that right?

A. (Interpreter) Yes.

Q. And during those eight years, would it be fair to say that you had basically a husband and wife relationship with [Rodriguez]?

A. (Interpreter) Yes.

Q. You had good times and you had bad times?

A. (Interpreter) Yes.

Q. You went out at times with him? A. (Interpreter) Yes.

Q. Did you all make love?

[Prosecutor]: Objection.

The Court: Sidebar.

By eliciting testimony from B.S. regarding Rodriguez’s character as a

romantic partner, he gave the state the opportunity to rebut that testimony. Evid.R.

404(A)(1) (“Evidence of a pertinent trait of character offered by an accused, or by

the prosecution to rebut the same is admissible * * *.); see also State v. Garcia, 8th

Dist. Cuyahoga No. 102546,

(“Because the defense opened the

door and placed [defendant’s] character at issue, the state was entitled to rebut that

testimony * * *.”).

We find no abuse of discretion.

Other Police Interactions

Rodriguez next claims that the state improperly questioned him

regarding two specific incidents with police.

Prior to the state’s questioning regarding the incidents, Rodriguez

was asked, during direct examination, whether he had “been in trouble before” the

domestic violence incidents with B.S.

Rodriguez testified that “I had some conflict in 2013, 2014 * * * but it

wasn’t anything all that serious.” He then proceeded to describe an altercation that

occurred while driving in a car. Rodriguez explained that “someone came and tried

to side swipe us just out of spite.” He explained that he was carrying a firearm and that the other driver “pulled out a weapon.” In response “I had the idea of pulling

out this badge that was in my friend’s car, and I showed it to them so we wouldn’t

have any more trouble.” Rodriguez further explained that the badge was “just like a

children’s toy, that’s all it was.”

Rodriguez’s counsel then asked him whether he had “any other

trouble with the police other than traffic violations.” In response, Rodriguez

detailed a shoplifting incident involving B.S. and himself. He did not discuss any

other incident.

During Rodriguez’s cross-examination, he agreed that he

characterized his interactions with police as “a little conflict, not all that serious.”

The state then inquired about an incident at U.S. Cotton after his employment there

had been terminated. The prosecutor inquired whether Rodriguez threatened to

“shoot anyone who tried to have [him] removed,” whether “it took police two and a

half hours to clear out the 250 employees while they searched for you” and whether

he considered that conduct “serious.”

The state also inquired into the circumstances surrounding the

incident where Rodriguez brandished a “police” badge and Rodriguez admitted that

he was pretending to be a police officer.

There are two methods of impeachment by contradiction — self- contradiction under Evid.R. 613 and specific contradiction pursuant to Evid.R. 616. Pursuant to Evid.R. 613(C), prior inconsistent conduct, the rule allows that “[d]uring examination of a witness, conduct of the witness inconsistent with the witness’s testimony may be shown to impeach.” Under Evid.R. 616(C), specific contradiction, “facts contradicting a witness’s testimony may be shown for the purpose of impeaching the witness’s testimony.” Under both of these rules, limitations exist on the use of extrinsic evidence when the facts or conduct are offered solely for impeaching a witness’s testimony.

State v. Serrano,

,

, ¶ 36 (8th Dist.).

Accordingly, we find the state’s questions were not improper. The

state merely inquired as to inconsistencies; it did not seek to introduce extrinsic

evidence.

We find no abuse of discretion.

Social Media

Rodriguez argues the trial court impermissibly permitted the state to

introduce evidence of his social media postings including images of women as well

as a video depicting him with firearms.

Images

During direct examination, Rodriguez introduced several

photographs that he had posted to social media depicting him with his children,

stepchildren and their mother. He discussed how family members “liked” or “loved”

these photographs.

During cross-examination, the state introduced different social media

postings made by Rodriguez, including those of women posing in bikinis and

lingerie.

Evid.R. 404(A)(1) provides:

Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same is admissible * * *. Rodriguez was certainly permitted to offer evidence of his good character and as a

family man which he did by introducing photographs of himself with his family.

Evid.R. 404(A)(1) also permits the state to offer evidence to rebut that claim which

it did by introducing Rodriguez’s postings of scantily clad women.

We cannot conclude that the court abused its discretion by permitting

the state to cross-examine Rodriguez regarding these images.

Video

During direct examination, Rodriguez testified that he purchased one

firearm and that it was the only firearm that he had ever owned. During cross-

examination, however, the state introduced one of Rodriguez’s music videos

featuring images of Rodriguez with multiple firearms wearing what appeared to be

a clown mask. The state argued that it was admissible as “bad character evidence”

because Rodriguez brought his own character into question by introducing the social

media photos of himself with his family “portraying him as a good person who

wouldn’t do these sorts of things that he’s accused of.” The court allowed the video

into evidence because one of Rodriguez’s children testified that he was “a clown” and

because some of the photographs of Rodriguez with various firearms appeared to

depict “inside what looked to be a residence.”

Rodriguez argues that the court violated Evid.R. 608 when it

admitted the video depicting him with the firearms. In relevant part, Evid.R. 608(B)

provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The state argues that the video was admissible as a specific

contradiction pursuant to Evid.R. 616(C). Evid.R. 616(C) permits the introduction

of a testifying witness’ conduct that is inconsistent with the witness’ testimony for

purposes of impeachment. Evid.R. 616(C) limits the use of extrinsic evidence of

contradiction offered for the sole purpose of impeaching a witness’ testimony,

making such evidence inadmissible unless the evidence is one of the following:

(1) Permitted by Evid.R. 608(A), 609, 613, 616(A), 616(B), or 706;

(2) Permitted by the common law of impeachment and not in conflict with the Rules of Evidence.

Relevant to this case, the video was admissible pursuant to Evid.R.

616(A) which provides that “[b]ias, prejudice, interest, or any motive to

misrepresent may be shown to impeach the witness either by examination of the

witness or by extrinsic evidence.”

Even assuming that it was error for the court to admit the video, any

resulting prejudice is harmless. There was no dispute that Rodriguez is a musician

and that images with firearms were part of a music video. As such, the mere

depiction of him holding different guns than the one he claimed to own does not

establish ownership. We cannot say that the trial court abused its discretion by allowing

the video into evidence.

We overrule the fifth assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry out this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___ EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR