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State v. Price

Court of Appeals of Ohio, Fifth District, Holmes

May 18, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JEREMY W. PRICE Defendant-Appellant

          Criminal appeal from the Holmes County, Court of Common Pleas, Case No. 16CR077

          For Plaintiff-Appellee SEAN WARNER.

          For Defendant-Appellant DAVID HUNTER.

          JUDGES: Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

          OPINION

          GWIN, J.

         {¶1} Appellant Jeremy W. Price ["Price"] appeals his conviction and sentence after a jury trial in the Holmes County Court of Common Pleas.

         Facts and Procedural History

         {¶2} On October 21, 2016, Price resided in Holmes County with his wife, Shelby Price, his stepdaughter, L.R. and children, M.P. and E. P. Price's nephew, Gus Price and his wife Alisha Kessler were living in the backyard in a tent at that time.

         {¶3} Price and Gus came home from work and Shelby took Price, Gus and Alisha to the home of their boss, Andy O'Dell, to pick up their check and "hang out, " while she returned home to watch six children.

         {¶4} Sometime in the early morning of October 22, 2016, Alisha Kessler, after having been at Andy O'Dell's and having consumed alcohol, went to get a drink from Price's trailer. Upon entering the trailer, Alisha testified she saw Price's face between the legs of L.R. "licking her." T. at 137. After about "five minutes" of standing there watching, Alisha left to tell her husband Gus. Gus went to the trailer, looked in the window of the back door, and then went around to the front door and walked in the trailer. Gus testified he saw Price with Lilly on the couch with his face on her vagina. Price then "stood up and started playing with his penis trying to get it hard…." T. at 83. Gus enters the trailer, grabbed his child and walked out of the trailer.

         {¶5} Neither Gus nor Alicia called the police to report what they observed. Instead they go to Holly Claypool's residence. Holly and her husband Nathan called Andy O'Dell. O'Dell', Dawn Colopy and Christopher Ross accompany Gus, Alicia, Holly and Nathan to Price's home. Holly Claypool calls the police.

         {¶6} Holly Claypool testified that when Price was confronted about how he could do such a thing Price stated that he thought it was his wife. T. at 191. Holly further testified that L.R., in response to Price's statement that he would never hurt her, "interrupted him and was crying and said no daddy, you were messing with me and I kicked you off of me." T. at 190.

         {¶7} The victim submitted to a SANE exam and a rape kit was submitted to BCI. BCI tests of L.R.'s vaginal samples tested presumptively positive for seminal fluid and no sperm were identified. T. at 305. "Presumptively positive" means that the test does not confirm the presence of seminal fluid it indicates seminal fluid may be present; there is no way to confirm that seminal fluid is present. T. at 306. Amylase, a component of saliva was found in L.R.'s underwear. T. at 309. However, there was not enough DNA present to identify anyone positively. T. at 321.

         {¶8} The cutting from L.R.'s underwear indicated a mixture of more than one male with the major profile consistent with Price or any male coming from his father's side. T. at 334; 352. The amounts detected were .37 nanograms in the cutting and .31 nanograms in the swab. T. at 339. A "nanogram" is one billionth of a gram. T. at 339.

         {¶9} The jury found Price guilty of one count of rape a felony of the first degree in violation of R.C. 2907.02(A)(1)(b) and R.C. 2907.02(B). The trial court sentenced Price to a term of ten years to life.

         Assignments of Error

         {¶10} Price raises three assignments of error:

         {¶11} "I. THE TRIAL COURT ERRED IN PERMITTING CERTAIN EVIDENCE TO BE CONSIDERED BY THE JURY.

         {¶12} "II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS UNDER CRIM. R 29(A) AT THE CLOSE OF THE STATE'S CASE.

         {¶13} "III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL."

         I.

         {¶14} In his first assignment of error, Price argues that it was plain error to allow evidence of his prior conviction, his propensity toward violence when drinking and hearsay evidence during his jury trial

         STANDARD OF APPELLATE REVIEW.

         A. Plain error.

         {¶15} Price agrees that our standard of review is plain error because he did not object at trial.

         {¶16} Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or defects affecting substantial rights" notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show "an error, i.e., a deviation from a legal rule" that constitutes "an 'obvious' defect in the trial proceedings, " State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

         {¶17} Even if the error is obvious, it must have affected substantial rights, and "[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." Id. The Ohio Supreme Court recently clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is "required to demonstrate a reasonable probability that the error resulted in prejudice-the same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis sic.) Id. At ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, __Ohio St.3d __, 2017-Ohio-8011, __N.E.3d__(Oct. 4, 2017), ¶32-34.

         {¶18} If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; the Supreme Court has "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" (Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas, __Ohio St.3d__, 2017-Ohio-8011, __N.E.3d__(Oct. 4, 2017), ¶32-34.

         B. Admissibility of evidence.

         {¶19} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). "Ordinarily, we review a trial court's hearsay rulings for an abuse of discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010)." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

         ISSUES ...


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