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State v. Blasenhauer

Court of Appeals of Ohio, Fifth District, Guernsey

August 24, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ROBERT L. BLASENHAUER Defendant-Appellant

         Appeal from the Guernsey County Court of Common Pleas, Case No. 15-CR-224

          FOR PLAINTIFF-APPELLEE JASON R. FARLEY ASSISTANT GUERNSEY COUNTY PROSECUTING ATTORNEY

          FOR DEFENDANT-APPELLANT STEPHEN E. PALMER WILLIAM FORNIA YAVITCH & PALMER, CO. L.P.A.

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Hoffman, J.

         {¶1} Defendant-appellant Robert L. Blasenhauer, Jr. appeals his conviction on one count of rape, in violation of R.C. 2907.02(A)(1)(b), entered by the Guernsey County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} At all times relevant, Appellant was married to M.B., and shared four children, in addition to seven children Appellant fathered in previous relationships. It is uncontested the parties were experiencing marital difficulties, personally and financially, at the time of the events herein, and were contemplating divorce.

         {¶3} On the evening of September 26th, 2015, Appellant and M.B. had a bonfire with their children. The parties consumed alcoholic beverages, including shots of whiskey, with a neighbor. It is undisputed Appellant was intoxicated. Appellant had difficulty holding his head up, was staggering while walking and slurring his words. M.B. was also intoxicated. Seven of the parties' children were home during the evening. B.B., the parties' eight year-old daughter, went inside from the bonfire, falling asleep in Appellant and M.B.'s bedroom.

         {¶4} Later in the evening, Appellant and M.B. went inside, washing the dirt from their feet in the bathroom. Appellant proceeded to the bedroom, while M.B. went to the kitchen to eat cereal. M.B. also sat in the family room with G.B., Appellant's daughter.

         {¶5} M.B. later entered the bedroom, observing Appellant on top of B.B. in the bed. Appellant's hand was moving. M.B. turned the bedroom light on, screaming at Appellant to get off B.B. Appellant put his shorts on, throwing a blanket over B.B.

         {¶6} G.B., Appellant's other daughter, overheard M.B. yelling and observed Appellant come out of the bedroom, stating to M.B. "you're stupid." M.B. told Appellant to leave the residence.

         {¶7} B.B. stated she went inside from the bonfire, going to bed in her parents' room. She eventually fell asleep, but was later awakened by Appellant pulling the covers off of her. Appellant pulled her pants off of her, followed by pulling her underwear down her left leg. Appellant touched his mouth to her "bad spot, " where she "goes to the bathroom." She felt Appellant put his "bad spot" in her "bad spot, " but not "too far. He rubbed his "bad spot" while touching B.B. M.B. then walked into the room, yelling at Appellant, who then left the residence.

         {¶8} M.B. observed a wet spot between B.B.'s legs on the bed, appearing to be semen. She photographed the scene. M.B. also observed fluid in B.B.'s private area, near her legs and buttocks. She photographed the image. M.B. ran to the neighbors, later calling law enforcement.[1]

         {¶9} Deputy Oakley of the Guernsey County Sheriff's Department arrived at the scene, followed by Lieutenant Mackie. M.B. was emotionally "hysterical" and crying. Deputy Oakley observed B.B. on the bed, with a sheet or a blanket on top of her.[2] B.B. was not wearing underwear, and a small pair of underwear were located near her on the bed. The underwear were later determined to be clothing M.B. intended to use to "clean up" B.B., prior to calling dispatch. Deputy Oakley observed small wet spots on the bed sheets, directly below B.B.'s buttocks area, and a large round spot of a fluid substance.

         {¶10} Lieutenant Mackie testified M.B. was hysterical at the residence. He further recounted the apprehension of Appellant, who was found passed out in his work truck, with no socks and no shirt on. He wore only jean type shorts. Appellant was visibly intoxicated. A loose pair of boxer shorts was found in his pocket. He was not wearing underwear.

         {¶11} Appellant was indicted on one count of rape, in violation of R.C. 2907.02(A)(1)(b), a first degree felony, with a victim under the age of thirteen.[3]

         {¶12} Following a jury trial, Appellant was convicted of the charge on September 30, 2016, and sentence was imposed on October 3, 2016, via Judgment Entry of Sentence.[4]

         {¶13} Appellant appeals, assigning as error, I. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING (WITHOUT OBJECTION) IMPPROPER [SIC] HEARSAY EVIDENCE IN VIOLATION OF THE RULES OF EVIDENCE AND APPELLANTS RIGHTS OF CONFRONTATION AND TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

         II. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING (WITHOUT OBJECTION) OTHER ACTS EVIDENCE IN VIOLATION OF THE RULES OF EVIDENCE AND APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

         III. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING (WITHOUT OBJECTION) IMPROPER EXPERT TESTIMONY ABOUT THE VERCITY [SIC] OF THE ALLEGED VICTIM IN VIOLATION OF THE RULES OF EVIDENCE AND APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

         IV. THE PROSECUTOR'S REFERENCE TO APPELLANT'S EXERCISE OF THE FIFTH AMENDMENT RIGHT TO REMAIN SILENT CONSTITUTED PLAIN ERROR, SERIOUSLY AFFECTING THE OUTCOME OF APPELLANT'S TRIAL.

         V. THE PROSECUTOR'S REFERENCE TO APPELLANT'S UTILIZATION OF HIS 401(K) TO PAY FOR HIS DEFENSE VIOLATED APPELLANT'S RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION.

         VI. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO HIS RIGHTS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION.

         VII. UNDER THE DOCTRINE OF ACCUMULATED ERROR, THE ERROR COMMITTED BY THE COURT, THE MISCONDUCT COMMITTED BY THE STATE, AND THE INEFFECTIVE ASSISTANCE OF APPELLANT'S TRIAL COUNSEL WARRANT REVERSAL.

         VIII. THE TRIAL COURT ERRED AND THEREBY DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY OVERRULING APPELLANT'S CRIM. R. 29 MOTION FOR JUDGMENT OF ACQUITTAL, AS THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE CHARGES BEYOND A REASONABLE DOUBT.

         IX.THE TRIAL COURT ERRED BY FINDING APPELLANT GUILTY AND THEREBY DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF THE OHIO CONSTITUTION BECAUSE THE VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         I.

         {¶14} In the first assigned error, Appellant maintains the trial court committed plain error in allowing hearsay statements into evidence. Specifically, Appellant challenges the statements made by Deputy Oakley, M.B. and K.B. relative to the alleged other acts committed against K.B., Appellant's daughter from a prior relationship.

         {¶15} It is well-settled a party must object in order to preserve an issue for appeal. See, e.g., State v. Jones (2001), 91 Ohio St.3d 335, 343, 2001-Ohio-57, 744 N.E.2d 1163; State v. Robb (2000), 88 Ohio St.3d 59, 75, 2000-Ohio-275, 723 N.E.2d 1019; State v. Lindsey (2000), 87 Ohio St.3d 479, 482, 2000-Ohio-465, 721 N.E.2d 995. Because appellant failed to object to the testimony during the hearing, we must determine whether the trial court committed plain error in allowing the testimony. Plain error is reversible error to which no objection was lodged at trial; it is obvious and prejudicial, and if permitted it would have a material adverse effect on the character and public confidence in judicial proceedings. State v. Craft (1977), 52 Ohio App.2d 1, 7, 367 N.E.2d 1221. See, also, Crim.R. 52(B). Notice of plain error is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus.

         {¶16} Appellant maintains the trial court committed plain error in allowing Deputy Oakley to testify as to M.B.'s recantation of events during his investigation. Deputy Oakley testified as to M.B.'s statements to law enforcement upon their arrival to the residence for purposes of the investigation. Such statements by M.B. would appear to have been excepted from the hearsay rule as excited utterances. Specifically, Deputy Oakley testified M.B. relayed the events of the evening to him upon arrival and M.B. indicated K.B. had told her of a prior incident in which Appellant engaged in alleged sexual conduct with her.[5] Deputy Oakley spoke with K.B. The testimony was cumulative to the testimony of M.B. herself and K.B. who testified she made the statements, but later recanted the allegations prior to trial. Appellant had the opportunity to cross-examine both M.B. and K.B., therefore the testimony was not prejudicial as both testified at trial.

         {¶17} Appellant further asserts the medical records from Akron Children's Hospital offered as exhibits by the State constitute hearsay. Specifically, Exhibit B, commenting B.B. presented for evaluation after "pt's father was found on top of her naked, " and Exhibit C, relating a history presented by caregiver, M.B. Exhibit C states, "Patient told her mother that her father put his 'bad spot on her bad spot.' Child told her mother this is not the first time it had occurred.*** Mother also stated that her 12 y.o. Daughter [K.B.] said that he had touched her butt before." Dr. Hamad, the treating physician, then relied upon the statements in his medical treatment and diagnosis. He testified,

…when I reviewed the records from the social worker, this wasn't the first time, and then the patient had stated to the social worker that she didn't like to think about it so, you know, for her, this may have been normal and this is what she thought was ...

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