from Union County Common Pleas Court Trial Court No.
Wood for Appellant.
L. Hord for Appellee.
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.
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.
and Procedural History
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.
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
On March 7-10, 2016, a jury trial was held. 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. 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
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
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.
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
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.
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
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
(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).
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.
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.
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.
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. Dr. McManus testified that following her
examination she concluded that A.C. had been sexually abused.
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
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.
A videotaped deposition of A.C. was played for the
jury. 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. 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
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
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
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 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).
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.
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.
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
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.
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.
On April 6, 2016, a judgment entry memorializing Fetherolf s
sentence was filed. Fetherolf filed a notice of appeal from
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.
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
of Error No. 1
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.
of Error No. 2
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
of Error No. 3
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.
of Error No. 4
Fetherolf's right to a fair trial was violated by
repeated instances of prosecutorial misconduct and deprived
Mr. Fetherolf of a fair trial.
Assignment of Error
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.
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).
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 ...