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State v. Fetherolf

Court of Appeals of Ohio, Third District, Union

April 10, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MICHAEL JASON FETHEROLF, DEFENDANT-APPELLANT. STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MICHAEL JASON FETHEROLF, DEFENDANT-APPELLANT.

         Appeals from Union County Common Pleas Court Trial Court No. 13-CR-0207

          Carrie Wood for Appellant.

          Terry L. Hord for Appellee.

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Michael J. Fetherolf ("Fetherolf), brings this appeal from the April 6, 2016, judgment of the Union County Common Pleas Court sentencing Fetherolf to serve 25 years to life in prison after Fetherolf was convicted in a jury trial of Rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and Intimidation of a Witness in violation of R.C. 2921.04(B), a felony of the third degree. [1] On appeal, Fetherolf argues that the trial court erred by allowing multiple witnesses to testify to the veracity of statements made by the victim, A.C., that the trial court erred by failing to exclude details of Fetherolf s prior conviction since he did not testify at trial, that the trial court erred by allowing "other acts" evidence to be presented that had "no bearing on any fact of consequence, " that the trial court erred by denying Fetherolf s motion for a new trial based on his claim that the State failed to disclose a conviction of one of the State's witnesses, and that the prosecutor committed misconduct that deprived Fetherolf of a fair trial.

         Facts and Procedural History

         {¶2} Fetherolf was originally indicted on November 19, 2013, for Rape with the specification that the victim was less than ten years of age in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, Gross Sexual Imposition in violation of R.C. 2907.05(B), a felony of the third degree, and Sexual Battery in violation of R.C. 2907.03(A)(5), a felony of the second degree. It was alleged that on or about September 22, 2013, Fetherolf engaged in sexual conduct with his daughter, A.C., who was born in March of 2006. According to the bill of particulars it was alleged that Fetherolf digitally penetrated A.C.'s vagina.

         {¶3} On January 23, 2015, a superseding indictment was filed against Fetherolf. The superseding indictment alleged 33 counts against Fetherolf, beginning with the same allegation of Rape previously indicted (Count 1) and the same allegation of Gross Sexual Imposition previously indicted (Count 2). The superseding indictment then also alleged fifteen counts of Rape in violation of R.C. 2907.02(A)(1)(b), all felonies of the first degree (Counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31), fifteen counts of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4), all felonies of the third degree (Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32), and one count of Intimidation of an Attorney, Victim or Witness in a Criminal Case in violation of R.C. 2921.04(B), a felony of the third degree (Count 33). The new Rape and Gross Sexual Imposition charges were related to similar allegations of digital penetration that Fetherolf allegedly perpetrated against A.C. when Fetherolf had physical custody of A.C. on weekends between March of 2011 and September of 2013. The Intimidation of a Witness charge alleged that Fetherolf threatened to spank A.C. if she told anyone about the alleged incidents, and that she would be in trouble if she told anyone. Fetherolf pled not guilty to the charges.

         {¶4} On March 7-10, 2016, a jury trial was held.[2] Testimony at trial indicated that A.C. was born in March of 2006 to mother Heather C, but it was not determined that Fetherolf was A.C.'s father until a DNA test was done when A.C. was approximately two and a half years old. After Fetherolf was determined to be A.C.'s father, Heather testified that she contacted Fetherolf and asked if he wanted to be involved in A.C.'s life. Fetherolf indicated that he did and Heather began providing Fetherolf with visitation.[3] Heather testified that as time passed she started allowing overnight visits between A.C. and Fetherolf and that those overnight visits grew into every other weekend.

         {¶5} Heather testified that on Friday September 20, 2013, she dropped A.C. off with Fetherolf for his weekend visitation with the intent being that Fetherolf or his grandmother would return A.C. on Sunday. Testimony indicated that Fetherolf was staying in his grandmother's trailer at the time and that he primarily exercised his visitation with A.C. at the trailer.

         {¶6} Heather indicated that she was contacted by Fetherolf on Saturday September 21st and Fetherolf asked her to drop off extra clothes for A.C, which she did. Then, Heather testified that she received a text message from Fetherolf on Sunday September 22, 2013, stating that his grandmother would bring A.C. home on Monday morning instead of Sunday. On Monday morning, Heather testified that she received a message from Fetherolf wherein he stated that he woke up late and that he or his grandmother would bring A.C. home that night or take her directly to school on Tuesday, September 24, 2013. Heather testified that she was upset with the situation.

         {¶7} Heather indicated that the next morning, Tuesday, she received a call from the school inquiring about A.C. because she was not at school. Heather then began trying to contact Fetherolf. Heather testified that when she could not get in contact with Fetherolf, she called the police. The police located Fetherolf that day and facilitated A.C.'s return to Heather.

         {¶8} After A.C. was returned to her, Heather took A.C. home. Heather commented that A.C. was dirty and looked like she needed a bath. Heather indicated that it was around lunchtime and A.C. was hungry so Heather made her food. Heather testified that A.C. looked "down" but was responsive. Heather testified that she asked A.C. about her weekend and eventually asked if A.C. got in trouble at Fetherolf s. Heather testified that A.C. put her head down, which was unusual behavior for A.C.

         {¶9} Heather testified that A.C. asked to take her lunch upstairs to her room. Heather indicated that it was fine and permitted A.C. to go upstairs. Heather testified that shortly thereafter, Heather's sister Kara went upstairs to talk to A.C. and a few minutes later Kara came down, "pale" with "a look of shock" and said that Heather needed to talk to A.C. (March 7, 2016, Tr. at 196).

         {¶10} Heather testified that she then talked to her daughter and asked what was wrong repeatedly and Heather testified that A.C. initially told her that she did not want to say anything because she was afraid of being spanked or getting in trouble. Heather testified that she conveyed to A.C. that she was not going to get into trouble and that A.C. then told her that Fetherolf touched her "in her butterfly, " and indicated her vagina. (Id. at 197). Heather testified that she asked A.C. what she meant and A.C. demonstrated with her hand.

She put her palm up. She took two fingers up and started going up and down like this on her palm and then she stuck one finger inside of her palm. And I asked her what she meant by that and she said that he had stuck a finger inside of her.

(Id.) Heather testified that A.C. also told her that Fetherolf threatened to spank A.C. if A.C. did not allow him to touch her "butterfly." (March 7, 2016, Tr. at 197). Heather testified that A.C. indicated that similar acts had been going on since A.C. was between four and five years old. Kara, who had already talked to A.C. at that point, testified that A.C. had told her essentially the same story, that Fetherolf touched her in her "no-no" parts, indicating her vaginal area. (March 8, 2016, Tr. at 16).

         {¶11} Heather testified that after hearing A.C.'s story she was upset and she went downstairs to make some phone calls. Kara took A.C. to a nearby park for 20-30 minutes while Heather made the calls. Heather testified that she called her mother, Linda, who came to the house. Linda also spoke with A.C. and Linda testified that A.C. revealed to her that Fetherolf had "stuck his fingers up in [her]" and that it had been going on since A.C. was four or five years old. (Id. at 43). According to Linda, A.C. also said that she did not tell anyone because her father had threatened to spank her if she did.[4]

         {¶12} After Heather finished making phone calls to, inter alia, her pediatrician, A.C. was taken to a nearby hospital and referred to a separate hospital that could more adequately handle a sexual assault examination. A.C. was then taken to the emergency room at Nationwide Children's Hospital by Heather, Kara, and Kara's boyfriend.

         {¶13} At the emergency room, A.C. met with a number of medical professionals including an emergency room physician and a Sexual Assault Nurse Examiner ("SANE"). A.C. also met with a social worker, Lauren Kato, who took A.C.'s initial history. A.C. informed the social worker and medical personnel that Fetherolf had been drinking and had "swirl[ed]" his fingers on her "bad spot." (March 8, 2016, Tr. at 109). Kato testified that A.C. indicated that Fetherolf threatened to spank A.C. if she did not cooperate. Kato testified that A.C.'s disclosure was consistent with what A.C. had told her mother based on Kato's interview with Heather.

         {¶14} Shortly thereafter on the same date, A.C. was physically examined by Dr. Helen McManus, an emergency room physician. Dr. McManus testified that she used the initial history provided by Kato to direct her care. Dr. McManus testified that although she did not find any marks on A.C. the exam was consistent with an allegation of touching, which would often not leave any marks.[5] Dr. McManus testified that following her examination she concluded that A.C. had been sexually abused.

         {¶15} In addition to a physical examination of A.C. by Dr. McManus, a rape kit was performed on A.C. by Teresa Warnimont, a SANE. Warnimont collected evidence and submitted it to BCI for testing. All swabs of A.C. checking for semen and amylase were negative. However, DNA testing revealed that in the crotch portion of A.C.'s underwear a male's DNA was present, which was consistent with a sample of Fetherolf s DNA.[6] The DNA analyst testified at trial that the DNA present in A.C.'s underwear was more than what she would usually find with simply touching or handling underwear.

         {¶16} A videotaped deposition of A.C. was played for the jury.[7] The deposition was dated May 18, 2015, which would have been approximately a year and a half after the alleged incidents of September 2013. During the deposition, A.C. often said she did not remember events. She even stated she could not remember the answers to some questions that she was asked that were totally unrelated to the events in question.[8] A.C. was tearful in the deposition and appeared reluctant to testify at all. At one point the deposition was stopped because A.C. was crying and she wanted to see her mother. When the deposition resumed, A.C. said she had gotten scared. In fact, on multiple occasions A.C. indicated that she was scared, and she stated that she did not want to talk about Fetherolf because she was scared. The one emphatic thing A.C. did testify to was that she did not want to see Fetherolf[9]

         {¶17} A.C. never did give an account of what Fetherolf had allegedly done to her in her deposition. When asked what occurred on the September 2013 weekend in question, she stated that she could not remember. However, when she was asked if she thought she had told people what had happened to her, she stated that she "thought so." Separately in the deposition she stated that she told her Aunt Kara "what [her] dad did, " but she never defined what that was.

         {¶18} Dennis Flanagan, a detective with the City of Marysville testified as to his involvement with this case. He testified that he tried to contact Fetherolf shortly after the accusations were made to get his side of the story and Fetherolf called Detective Flanagan one night just after midnight. Detective Flanagan testified that Fetherolf sounded irate and intoxicated. Detective Flanagan testified that Fetherolf called the allegations against him "bullshit" and stated that he would come in for an interview. Detective Flanagan testified that Fetherolf never came in and that Detective Flanagan was eventually contacted months later and informed that Fetherolf was apprehended elsewhere.

         {¶19} The State also presented the testimony of Fetherolf s probation officer and a paramour of Fetherolf s, Pam Hawkins. Hawkins testified that she left her husband to be with Fetherolf in the fall of 2013, around the time these allegations surfaced. Hawkins testified that she thought Fetherolf was on felony probation for failure to pay child support[10] and that she and Fetherolf left Ohio together, at Fetherolf s suggestion, to go to New York and Pennsylvania. Hawkins testified that one evening while with Fetherolf she saw him looking at inappropriate pictures of underage girls on a tablet. She also testified that Fetherolf purchased her a wig, thong and a skirt to dress her up like a "little girl." (March 8, 2016, Tr. at 137).

         {¶20} Hawkins testified that things soured between her and Fetherolf and she turned herself in for an outstanding warrant. Hawkins testified that she went to jail and when she got out she alerted officers to Fetherolf s location. At that time, she believed he had an active warrant related to failure to pay child support.

         {¶21} At the conclusion of the State's case, Fetherolf s counsel made a Crim.R. 29 motion for acquittal on all counts. The trial court sustained that motion with regard to 30 counts of the superseding indictment. Specifically, the trial court dismissed counts 3-32 of the superseding indictment on the basis that there was insufficient evidence to support convictions for Rape or GSI for any instances other than the September 2013 instance after which A.C. promptly disclosed what happened. The trial court indicated that the other allegations related to incidents that purportedly occurred between 2011 and 2013 were too indefinite and lacked sufficient proof to submit to the jury.

         {¶22} The remaining three counts against Fetherolf, Rape, Gross Sexual Imposition, and Intimidation of a Witness related to the September 2013 incident, were then submitted to the jury. The jury ultimately found Fetherolf guilty of all three counts.

         {¶23} Prior to Fetherolf s sentencing, he filed multiple pro se motions including a motion for a new trial, which alleged, inter alia, that the State failed to disclose some prior convictions of one of its witnesses, Pamela Hawkins. At Fetherolf s sentencing hearing, the trial court overruled Fetherolf s new trial motion, with the exception of his argument that the State failed to disclose some of the prior convictions of Hawkins. The trial court indicated that it would allow the State to respond in writing to Fetherolf s contention and that the trial court would rule on that issue related to Fetherolf s motion for a new trial after it received the State's response.

         {¶24} As to Fetherolf s sentencing, the trial court merged Fetherolf s convictions for Rape and Gross Sexual Imposition, finding that they were allied offenses of similar import, and the State elected to proceed to sentence Fetherolf on the Rape conviction. The trial court then ordered Fetherolf to serve 25 years to life in prison on the Rape conviction, of which 25 years was a mandatory prison term Fetherolf was sentenced to serve 30 months in prison on the Intimidation of a Witness conviction, concurrent to the Rape sentence.

         {¶25} On April 6, 2016, a judgment entry memorializing Fetherolf s sentence was filed. Fetherolf filed a notice of appeal from that judgment.

         {¶26} On April 21, 2016, the State filed a memorandum in opposition to Fetherolf s motion for a new trial based on the State allegedly failing to disclose prior convictions of Hawkins. Fetherolf then filed a pro se response. On May 24, 2016, the trial court filed an entry denying Fetherolf's motion for a new trial. Fetherolf filed a notice of appeal from that judgment.

         {¶27} Fetherolf's appeals from his sentencing entry and from the denial of his motion for a new trial were consolidated, and he asserts the following assignments of error for our review.

         Assignment of Error No. 1

         The trial court erred when it allowed Dr. McManus, S.A.N.E. nurse Teresa Warnimont, and Caseworker Kaitlin Ruddy to testify to the veracity of A.C.'s statements.

         Assignment of Error No. 2

         The trial court erred when it failed to exclude: (1) details of Mr. Fetherolf's prior conviction and sentence when he did not testify at trial, and (2) other acts evidence which had no bearing on any fact of consequence in contravention of Evid.R. 404(B)[.]

         Assignment of Error No. 3

         The trial court erred when it denied Mr. Fetherolf a new trial after the State failed to turn over to defense counsel all of Pamela Hawkins' prior convictions, including a recent conviction for falsification.

         Assignment of Error No. 4

         Michael Fetherolf's right to a fair trial was violated by repeated instances of prosecutorial misconduct and deprived Mr. Fetherolf of a fair trial.

         First Assignment of Error

         {¶28} In his first assignment of error, Fetherolf argues that the trial court erred by allowing several of the State's witnesses to provide testimony that he characterizes as vouching for the veracity of A.C.'s statements.

         Standard of Review

         {¶29} We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. State v. Lauf 3d Dist Putnam No. 12-16-06, 2017-Ohio-608, ¶ 54, citing State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, ¶ 13, citing State v. Graham, 58 Ohio St.2d 350 (1979), and State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 19. An abuse of discretion constitutes a decision that is arbitrary, capricious, or grossly unsound. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶30} However, where Fetherolf did not object to an evidentiary issue, we review his arguments on appeal for plain error. State v. Mammone,139 Ohio St.3d 467, 2014-Ohio-1942, ¶ 69, reconsideration denied,139 Ohio St.3d 1487, 2014-Ohio-3195, and cert. denied,135 S.Ct. 959 (2015). We take notice of plain error "with the utmost caution, under exceptional circumstances and only to prevent a miscarriage of justice." State v. Long,53 Ohio St.2d 91 (1978), paragraph three of the syllabus. To prevail under plain error, Fetherolf must show that an error occurred, that the error was plain, and that but for the ...


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