Criminal appeal from the Holmes County, Court of Common
Pleas, Case No. 16CR077
Plaintiff-Appellee SEAN WARNER.
Defendant-Appellant DAVID HUNTER.
JUDGES: Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon.
William B. Hoffman, J.
Appellant Jeremy W. Price ["Price"] appeals his
conviction and sentence after a jury trial in the Holmes
County Court of Common Pleas.
and Procedural History
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.
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.
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.
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.
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.
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.
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.
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.
Price raises three assignments of error:
"I. THE TRIAL COURT ERRED IN PERMITTING CERTAIN EVIDENCE
TO BE CONSIDERED BY THE JURY.
"II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO DISMISS UNDER CRIM. R 29(A) AT THE CLOSE OF THE
"III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
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
OF APPELLATE REVIEW.
Price agrees that our standard of review is plain error
because he did not object at trial.
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
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.
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),
Admissibility of evidence.
"[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.