[Cite as State v. Cuthbert, 2012-Ohio-4472.]

COURT OF APPEALS 

 DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. John W. Wise, J. 

 : Hon. Julie A. Edwards, J. 

-vs- : 

 : Case No. 11CAA070065 

DEWITT A. CUTHBERT : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas, Case No. 10 CRI-12-

0608A 

 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: September 28, 2012 

APPEARANCES: 

For Appellant: For Appellee: 

 

ANTHONY M. HEALD CAROL HAMILTON O’BRIEN 

125 N. Sandusky St. DELAWARE COUNTY PROSECUTOR 

Delaware, OH 43015 KYLE ROHRER 

 140 N. Sandusky St., 3rd Floor 

 Delaware, OH 43015 

 
[Cite as State v. Cuthbert, 2012-Ohio-4472.]

Delaney, J. 

{¶1} Appellant Dewitt A. Cuthbert appeals from the judgment entry of the 

Delaware County Court of Common Pleas convicting him of three counts of rape and 

one count of kidnapping and sentencing him to an aggregate prison term of seven 

years. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} This case arose on June 17, 2009 in the city of Delaware, Ohio, at the 

apartment appellant shared with M.R. Appellant and M.R. were in a dating 

relationship and lived together from February, 2009 through June, 2009. M.R.’s minor 

son E. and E.’s half-sister J.S. also lived at the apartment. 

{¶3} On the evening of June 17, M.R. went upstairs to finish some homework 

for her college class. Appellant briefly interrupted her and complained he was angry 

she was on the computer instead of spending time with him. Appellant went back 

downstairs and M.R. continued to work in the bedroom. 

{¶4} About twenty minutes later appellant came back into the room and said 

he wanted to have sex with M.R. She rolled her eyes and said something to the effect 

of “let’s get it over with.” Appellant got mad, yelled an obscenity at M.R., and again 

left the room. M.R. finished her assignment and went to bed. 

{¶5} M.R. fell asleep but awoke to find appellant forcing her into an act of 

fellatio. Appellant then penetrated M.R. vaginally and anally while yelling obscenities 

and holding her by the hair. M.R. pleaded with appellant to stop but he did not. After 

he completed the sex acts, appellant went into the bathroom and M.R. remained in the 
Delaware County, Case No. 11CAA070065 3 

bed, crying. Appellant said to her, “How does it feel to be treated like a piece of 

[expletive]?” 

{¶6} M.R. went downstairs, intending to leave the house. J.S. heard appellant 

and M.R. arguing and came up from the basement to ask what was wrong. Appellant 

said it was none of her business and told her to go back downstairs. J.S. later testified 

she didn’t know what appellant and M.R. argued about, but she knew M.R. went into 

the bathroom and vomited, and J.S. sat with her on the couch until she fell asleep. 

{¶7} June 18 passed without incident. On June 19, appellant went to work 

and M.R. picked him up afterward. They argued on the way home, and M.R. 

confronted appellant about the rapes. He said she was blowing it out of proportion 

and he couldn’t take it back. During the argument, appellant stated “You don’t know 

what rape is but you’re about to find out.” Eventually the police were called, but upon 

their arrival appellant was already gone. 

{¶8} In the course of the investigation of the June 19 incident, M.R. told Sgt. 

Shellito of the Delaware City Police Department about the rape two days earlier, but 

also stated she didn’t want to pursue criminal charges at that time. 

{¶9} Shellito followed up on M.R.’s allegations and interviewed appellant. 

Appellant agreed with M.R.’s account of the sexual acts that occurred, but claimed the 

acts were consensual. 

{¶10} M.R. and appellant ended their relationship. People who knew M.R. said 

she changed in the aftermath of the rapes and became withdrawn and depressed. 

M.R. began attending counseling. 
Delaware County, Case No. 11CAA070065 4 

{¶11} In the fall of 2010, M.R. spoke with Detective Christina Burke of the 

Delaware County Sheriff’s Office and told her about the rapes. At that point, M.R. was 

ready to pursue criminal charges. 

{¶12} Appellant was charged by indictment with three counts of rape pursuant 

to R.C. 2907.02(A)(2) and one count of kidnapping pursuant to R.C. 2905.01(A)(4).1 

Appellant entered pleas of not guilty and the case proceeded to jury trial. Appellant 

moved for acquittal pursuant to Crim.R. 29 at the close of appellee’s evidence and at 

the close of all of the evidence. 

{¶13} Appellant was found guilty as charged. The trial court ruled that Count 

Four, kidnapping, merged with Counts One through Three (three counts of rape), and 

that Counts Two and Three (both rape) merged for sentencing. Appellee elected to 

sentence on Count One, rape, and Count Two, rape. The trial court sentenced 

appellant to an aggregate prison term of seven years and found him to be a Tier III 

sex offender. 

{¶14} Appellant now appeals from the judgment entry of conviction and 

sentence. 

{¶15} Appellant raises seven Assignments of Error: 

{¶16} “I. THE JURY’S GUILTY VERDICTS ON COUNTS ONE, TWO, THREE 

AND FOUR WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE 

PRESENTED AT THE TRIAL OF THIS MATTER.” 

 

1 Appellant was also charged by indictment with a fourth count of rape against a different 

victim. This count was severed from the others for trial and is not at issue in this appeal. 
Delaware County, Case No. 11CAA070065 5 

{¶17} “II. THE COURT COMMITTED PREJUDICIAL ERROR OVERRULING 

THE DEFENDANT’S MOTION FOR A MISTRIAL DUE TO PROSECUTORIAL 

MISCONDUCT.” 

{¶18} “III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A 

FAIR TRIAL IN VIOLATION OF THE DEFENDANT’S FIFTH, SIXTH, AND 

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND 

ARTICLE 1, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.” 

{¶19} “IV. THE COURT COMMITTED REVERSABLE (sic) ERROR IN 

FINDING THAT THE RAPE CONVICTIONS SHOULD NOT MERGE AND IN 

IMPOSING CONSECUTIVE SENTENCES ON THOSE COUNTS.” 

{¶20} “V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT 

PERMITTED THE STATE OF OHIO TO PRESENT A PORTION OF A TAPE 

RECORDING WITHOUT REQUIRING, UPON REQUEST BY THE DEFENDANT, 

THAT THE BALANCE OF THE TAPE BE PLAYED.” 

{¶21} “VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN 

IT PREVENTED THE DEFENDANT FROM ASKING QUESTIONS REGARDING 

EXCULPATORY STATEMENTS MADE TO OFFICER SHELLITO.” 

{¶22} “VII. THE COURT COMMITTED PREJUDICIAL ERROR IN 

PREVENTING RELEVANT CROSS EXAMINATION OF MATTERS RELATING TO 

THE ISSUE OF CONSENT.” 
Delaware County, Case No. 11CAA070065 6 

I. 

{¶23} Appellant argues in his first assignment of error his convictions for three 

counts of rape and one count of kidnapping are against the manifest weight and 

sufficiency of the evidence. 

{¶24} The legal concepts of sufficiency of the evidence and weight of the 

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The 

standard of review for a challenge to the sufficiency of the evidence is set forth in 

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the 

syllabus, in which the Ohio Supreme Court held, “An appellate court’s function when 

reviewing the sufficiency of the evidence to support a criminal conviction is to examine 

the evidence admitted at trial to determine whether such evidence, if believed, would 

convince the average mind of the defendant’s guilt beyond a reasonable doubt. The 

relevant inquiry is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime proven beyond a reasonable doubt.” 

{¶25} In determining whether a conviction is against the manifest weight of the 

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing 

the entire record, weighs the evidence and all reasonable inferences, considers the 

credibility of witnesses and determines whether in resolving conflicts in the evidence, 

the jury clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, at 

387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of 
Delaware County, Case No. 11CAA070065 7 

the evidence and ordering a new trial should be reserved for only the “exceptional 

case in which the evidence weighs heavily against the conviction.” Id.

{¶26} Appellant was convicted of three counts of rape pursuant to R.C. 

2907.02(A)(2), which states: “No person shall engage in sexual conduct with another 

when the offender purposely compels the other person to submit by force or threat of 

force.” Count one was for the act of fellatio, count two for the act of digital anal 

penetration, and count three for the act of penile vaginal penetration. Appellant was 

also convicted of one count of kidnapping pursuant to R.C. 2905.01(A)(4), which 

states in pertinent part, “No person, by force, threat, or deception, * * * shall remove 

another from the place where the other person is found or restrain the liberty of the 

other person * * * to engage in sexual activity, as defined in section 2907.02 of the 

Revised Code, with the victim against the victim’s will.” 

{¶27} Appellant’s argument is premised upon his assertion the testimony of 

appellee’s witnesses was not credible. Appellant also argues the jury lost its way 

because evidence was presented that appellant and M.R. had an otherwise 

untroubled relationship, M.R. did not immediately call the police, and the sexual 

assault in the bedroom did not awaken E. who was sleeping next door. 

{¶28} In the present case, M.R. testified in detail as to the sexual acts 

committed by appellant and the acts were not consensual. Moreover, we also are 

mindful that “[c]orroboration of victim testimony in rape cases is not required.” State v. 

Johnson, 112 Ohio St.3d 210-217, 2006-Ohio-6404 at ¶ 53. 
Delaware County, Case No. 11CAA070065 8 

{¶29} Upon review of the entire record, we are not convinced the jury lost its 

way and we find sufficient evidence, if believed, to support the findings of guilt. We 

further find no manifest miscarriage of justice. 

{¶30} Appellant’s first assignment of error is overruled. 

II., III. 

{¶31} Appellant’s second and third assignments of error are related and will be 

considered together. First, appellant asserts appellee repeatedly committed 

prosecutorial misconduct and the trial court should have granted a mistrial; he further 

alleges he was therefore deprived of due process and a fair trial in violation of the 5th, 

6th, and 14th Amendments of the United States Constitution and Article I, Sections 10 

and 16 of the Ohio Constitution. 

{¶32} The test for prosecutorial misconduct is whether the prosecutor’s 

remarks and comments were improper and if so, whether those remarks and 

comments prejudicially affected the substantial rights of the accused. State v. Lott, 51 

Ohio St.3d 160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 

112 L.Ed.2d 596 (1990). In reviewing allegations of prosecutorial misconduct, we 

must review the complained-of conduct in the context of the entire trial. Darden v. 

Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). 

{¶33} Complaints of prosecutorial misconduct are often raised in the context of 

the closing argument, but the question of “how far is too far” is to be judged by the 

circumstances of the particular case: 

[T]he prosecutor may not invite the jury to judge the case upon standards or 

grounds other than the evidence or the law of the case. Thus, he cannot 
Delaware County, Case No. 11CAA070065 9 

inflame the passion and prejudice of the jury by appealing to the community 

abhorrence or expectations with respect to crime in general, or crime of the 

specific type involved in the case. United States v. Solivan, 937 F.2d 1146 

(C.A.6, 1991). 

The prosecutor is not only entitled, he is encouraged to advocate strongly, even 

vehemently, for conviction. But while he may strike hard blows, the prosecutor 

is not at liberty to strike foul ones. Berger v. United States, 295 U.S. 78, 55 

S.Ct.629, 79 L.Ed. 1314 (1935). 

The prosecutor’s conduct should always be judged within the context of the 

whole case, and most particularly, the whole argument. 

We turn now to the consequences of overstepping by the prosecutor. The trial 

of the case is under the control of the trial judge, who must monitor the 

proceedings as they develop, and control the conduct of both counsel. 

Because the trial judge is present and sees and hears all that goes on, great 

deference should be accorded to his judgment as to how to handle these 

issues. 

When misconduct occurs, the trial judge should admonish the prosecutor, and if 

the conduct is severe enough, admonish him within the presence of the jury. 

He should instruct the jury to disregard the prosecutor’s statements only if 

requested by defense counsel. State v. Harcourt, 46 Ohio App.3d 52, 546 

N.E.2d 214 (1988). If appellant moves for a mistrial, the court should overrule 

the motion only if satisfied that the conduct will not result in a miscarriage of 

justice, considering the curative steps taken by the court. * * * *. 
Delaware County, Case No. 11CAA070065 10 

When reviewed by the appellate court, we should examine the climate and 

conduct of the entire trial, and reverse the trial court’s decision as to whether to 

grant a mistrial only for a gross abuse of discretion. See State v. Maurer, 15 

Ohio At.3d 239, 473 N.E.2d 768 (1984), cert.denied, 472 U.S. 1012, 105 S.Ct. 

2714, 86 L.Ed.2d 728 (1985). 

State v. Draughn, 76 Ohio App.3d 664, 671, 602 N.E.2d 790 (5th Dist.1992). 

{¶34} Appellant complains of a number of statements by appellee in closing 

argument, directing us first to the following statement which was interrupted sua 

sponte by the trial court. While appellant did not object to the first statement by 

appellee, the comment is best evaluated in the context of the ensuing remarks, 

objections, and motion for mistrial: 

[PROSECUTOR]: * * * *. YOU ARE GOING TO GO IN THAT ROOM, AND I 

WOULD SUBMIT TO YOU FOLKS THAT’S WHEN YOUR JOB REALLY 

BEGINS, BECAUSE THE ULTIMATE TEST YOU HAVE, YOUR SERVICE AS 

JURORS, WILL NOT BE THAT YOU SAT HERE AND LISTENED TO 

WITNESSES AND LISTENED TO LAWYERS BABBLE FOR TWO AND A 

HALF DAYS, THE TRUE TEST IS THE JURY SERVICE, IT WILL BE THE 

QUALITY OF THE VERDICT THE JURY WILL RENDER. WHETHER THIS 

VERDICT SPEAKS FOR JUSTICE, WHETHER THIS VERDICT— 

THE COURT: MR. ROHRER, AS LONG AS THEIR VERDICT IS BASED 

UPON THE FACTS AND THE LAW AS I WILL GIVE IT TO THEM IT IS A 

PROPER VERDICT. NO ONE QUESTIONS THAT VERDICT. LET’S GET ON 

TO SOMETHING ELSE. 
Delaware County, Case No. 11CAA070065 11 

[PROSECUTOR]: WHETHER YOUR VERDICT SPEAKS FOR THE TRUTH— 

THE COURT: MR. ROHRER, I JUST TOLD YOU, IF THEIR VERDICT IS 

GUILTY, IF THEIR VERDICT IS NOT GUILTY, AS LONG AS IT WAS BASED 

UPON THE FACTS AND THE LAW OF THE OHIO (sic), IT SPEAKS FOR THE 

TRUTH. YOU UNDERSTAND? SO THIS SUBJECT MATTER IS CLOSED, 

NO MORE SIR. 

{¶35} Later, appellee continued: 

[PROSECUTOR]: THIS IS A YES OR A NO. IF SHE IS TELLING THE 

TRUTH THIS IS RAPE. THERE ISN’T ANY MISTAKE IN THIS CASE, THERE 

ISN’T ANY WELL, MAYBE THIS WAS CONSENSUAL. ONE WITNESS. 

AGAIN, THE JUDGE WILL INSTRUCT YOU AND GO BY THE JUDGE’S 

INSTRUCTIONS AND NOT BY WHAT WE SAY THE INSTRUCTIONS ARE, 

THE INSTRUCTIONS ON ONE WITNESS, THE TESTIMONY, IF YOU 

BELIEVE IT IS SUFFICIENT TO PROVE ANY FACT, AND THE STATE 

WOULD SUBMIT TO YOU THAT SINCE THERE ARE ONLY TWO PEOPLE IN 

THIS ROOM, AND YOU ONLY HEARD FROM ONE, [M.R.], WHO IS ONE— 

{¶36} Appellant objected immediately and moved for a mistrial. The trial court 

discussed the matter with the parties at sidebar, during which the following exchange 

took place: 

[PROSECUTOR]: I WOULD ALSO LIKE TO PROFFER THIS POINT TO THE 

COURT, MR. HEALD, IN CLOSING ARGUMENT, HE WENT TO GREAT 

LENGTHS ABOUT HOW HE CAN DISPROVE MAYBE A NEGATIVE, HE 

VERY MUCH WENT INTO THE FACT THAT HIS CLIENT DIDN’T TESTIFY. 
Delaware County, Case No. 11CAA070065 12 

THE COURT: NO. 

[DEFENSE TRIAL COUNSEL]: I DIDN’T SAY THAT. 

THE COURT: HE DID NOT DO THAT. 

{¶37} The trial court then excused the jury to further discuss the pending 

motion for a mistrial. The trial court took issue with the prosecutor’s statements and 

the prosecutor defended himself: 

THE COURT: MR. ROHRER, I STOPPED YOU IN FINAL ARGUMENT, YOU 

TRIED TO INFER TO THE JURY THAT ANY FINDING OF NOT GUILTY 

WOULD BE AN IMPROPER VERDICT. THAT OBVIOUSLY IS IMPROPER. 

IT’S IMPROPER TO COMMENT ON THE FACT THAT THE DEFENDANT DID 

OR DID NOT TESTIFY. 

* * * *. 

THE COURT: YOU STRENUOUSLY OBJECT? ALL YOU WANT—IT’S KIND 

OF OBVIOUS TO THE COURT SITTING HERE, THAT THIS IS WHAT IS 

HAPPENING. THE COURT DOES NOT APPRECIATE THAT. THIS IS 

SUPPOSE (sic) TO BE A FAIR COURTROOM. YOU ALL KNOW WHAT THE 

RULES ARE. WE KNOW DEFINITELY WHAT THE RULES ARE. IN MY 30 

YEARS I HAVE NEVER HEARD ANYONE INFER THAT A JUST VERDICT 

WOULD NOT BE A VERDICT, NOT BE JUSTIFIED. I SAID I NEVER HEARD 

THAT. YOU’RE PUSHING THE LIMITS, AND I DON’T APPRECIATE IT, SIR. 

* * * *. 

{¶38} Defense trial counsel argued a curative instruction would not be 

sufficient. The trial court brought the jury back in and made the following instruction: 
Delaware County, Case No. 11CAA070065 13 

* * * *. 

LADIES AND GENTLEMEN, I WANT TO READ YOU SOMETHING THAT IS 

VERY FUNDAMENTAL IN OUR SYSTEM OF JURISPRUDENCE, JUST IN A 

CRIMINAL CASE: IF (sic) IS NOT NECESSARY THAT THE DEFENDANT 

TAKE THE WITNESS STAND IN HIS OWN DEFENSE. HE HAS A 

CONSTITUTIONAL RIGHT NOT TO TESTIFY. THE FACT THAT THIS 

DEFENDANT DID NOT TESTIFY MUST NOT AND CAN NOT (SIC) BE 

CONSIDERED BY YOU FOR ANY PURPOSE WHATSOEVER, NOR MAY 

YOU DRAW ANY INFERENCE UPON THE FACT THAT HE DID NOT 

TESTIFY. IT IS IMPROPER FOR COUNSEL TO COMMENT ON THIS 

CONSTITUTIONAL RIGHT. 

{¶39} The comments that first provoked a reprimand by the trial court, in terms 

of the jury returning a verdict “for justice,” could motivate the jury to weigh the case 

upon standards other than the evidence presented and the law. In the context of the 

entire argument, however, and due largely to the fact that the trial court shut down the 

argument almost immediately, we find the comments did not prejudice the ultimate 

outcome of the case, and the trial court’s instruction was sufficient to cure any 

misdirection the jury may have inferred from the prosecutor’s comments. 

{¶40} More troubling is appellant’s second example of prosecutorial 

overreaching, an unambiguous comment upon appellant’s decision not to testify. 

{¶41} The Ohio Supreme Court has noted comments by prosecutors on 

defendants’ post-arrest silence or decision not to testify are looked upon with “extreme 

disfavor” because they raise an inference of guilt and essentially penalize the 
Delaware County, Case No. 11CAA070065 14 

defendant for exercising a constitutional right. State v. Thompson, 33 Ohio St.3d 1, 4, 

514 N.E.2d 407 (1987). Where such comments “work to the material prejudice of the 

defendant, they will not be tolerated.” Id., citing Wainwright v. Greenfield, 474 U.S. 

284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1976); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 

2240, 46 L.Ed.2d 91 (1976). 

{¶42} Even where such comments are improper, however, the Court noted “the 

defendant’s conviction may be affirmed, provided that the comments regarding the 

defendant’s silence are found to be harmless beyond a reasonable doubt.” 

Thompson, supra, 33 Ohio St.3d at 4, citing Chapman v. California, 386 U.S. 18, 87 

S.Ct.824, 17 L.Ed.2d 705 (1967); United States v. Hasting, 461 U.S. 499, 103 S.Ct. 

1974, 76 L.Ed.2d 96 (1983). The question is whether it is clear beyond a reasonable 

doubt that the jury would have found the appellant guilty absent the prosecutor’s 

comments. Id., citing State v. Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984). 

{¶43} In the instant case, we find the comments, while improper, were 

harmless beyond a reasonable doubt, thanks largely to the prompt objection and 

curative instruction by the trial court. Despite the prosecutor’s comments, we find, 

beyond a reasonable doubt, the appellant would still have been found guilty of the 

same charges. As addressed in our discussion of the first assignment of error, the 

evidence presented was sufficient for the jury to find appellant guilty. 

{¶44} Viewing the statements in the context of the entire trial, combined with 

the immediate objections and curative instruction, with the totality of evidence 

supporting a finding of appellant’s guilt, we cannot find appellant’s rights were 

substantially prejudiced and he did not receive a fair trial. See, State v. Freeman, 5th 
Delaware County, Case No. 11CAA070065 15 

Dist. No. 2006CA00388, 2007-Ohio-6270; State v. Dunn, 5th Dist. No. 2008-CA00137, 2009-Ohio-1688; State v. Graber, 5th Dist. No. 2002CA00014, 2003-Ohio-137. 

{¶45} Appellant has not demonstrated that but for the improper comments, the 

outcome of the trial would have been different, or that appellant was denied due 

process of law. Accordingly, appellant’s second and third assignments of error are 

overruled. 

IV. 

{¶46} In his fourth assignment of error, appellant argues all three rape 

convictions should have merged for purposes of sentencing. 

{¶47} Appellant was convicted of three separate counts of rape for three 

distinct acts of sexual assault. However, the trial court merged two counts of rape 

(Counts Two [digital/anal] and Three [penile/vaginal]) and merged the kidnapping 

count with all three rape counts. 

{¶48} In its sentencing entry, the trial court stated: “...the Court finds based 

upon the testimony that Count One the act of fellatio is a separate and distinct act to 

the criminal charge in Count Two and Count Three but the Court finds that the 

charges of Rape charged in Count Two and Three do merge and the Defendant may 

be sentenced on either Count Two or Count Three but not on both. The State then 

elected to proceed with sentencing on Count Two not Count Three.” 

{¶49} In State v. Johnson, the Ohio Supreme Court attempted to clarify 

whether offenses are subject to merger. 128 Ohio St.3d 153, 2010-Ohio-6314, 942 

N.E.2d 1061. Pursuant to Johnson, “[i]f the multiple offenses can be committed by the 

same conduct, then the court must determine whether the offenses were committed by 
Delaware County, Case No. 11CAA070065 16 

the same conduct, i.e., ‘a single act, committed with a single state of mind.’ “ Id. at ¶ 

49, quoting State v. Brown, 119 Ohio St .3d 447, 2008–Ohio–4569, ¶ 50 (Lanzinger, 

J., concurring in judgment only). “If the answer to both questions is yes, then the 

offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50. The 

offenses will not merge, however, if “the commission of one offense will never result in 

the commission of the other, or if the offenses are committed separately, or if the 

defendant has separate animus for each offense.” (Emphasis sic.) Id. at ¶ 51. 

{¶50} In this case, appellant was convicted of multiple counts of rape for 

multiple, differentiated acts of forcible penetration. Multiple rape offenses do not 

merge when a defendant commits them between “intervening acts.” State v. Jones, 78 

Ohio St.3d 12, 14 , 676 N.E.2d 80 (1997). Merger does not apply because the 

defendant has a separate specific intent to commit each rape, and the victim suffers a 

separate risk of harm from each rape. State v. Davic, 10th Dist. No. 11AP-555, 2012-

Ohio-952, ¶ 16, appeal not allowed, 132 Ohio St.3d 1482, 2012-Ohio-3334, 971 

N.E.2d 960, citing State v. Hayes, 10th Dist. No. 93AP–868 (Mar. 1, 1994). 

{¶51} As in Davic, in the instant case “an intervening act separated each of 

appellant's multiple rapes” because he alternated between different types of 

penetration. “Each rape was, therefore, a separate offense being committed with a 

separate specific intent and causing separate harm to the victim.” Id. See also, State 

v. Barnes, 68 Ohio St.2d 13, 427 N.E.2d 517 (1981)(entry into two bodily orifices 

constitute two separate rape offenses). 

{¶52} The trial court did not err in sentencing appellant on two separate counts 

of rape, and appellant’s fourth assignment of error is overruled. 
Delaware County, Case No. 11CAA070065 17 

V. 

{¶53} In his fifth assignment of error, appellant contends the trial court should 

not have permitted appellee to play only a portion of the tape of appellant’s jail 

telephone call and should have played the balance of the recording. 

{¶54} At trial, appellee presented evidence in the form of a CD of a telephone 

call of appellant from jail to his mother. Over objection appellee played a portion of 

this CD in which appellant instructed his mother to “get any dirt on [M.R.] that you 

can.” Appellant argued the entire conversation should be played but appellee 

responded doing so would result in the admission of evidence otherwise inadmissible. 

The trial court listened to recording of the entire conversation outside of the presence 

of the jury, overruled appellant’s objection, and instructed the jury “* * *the telephone 

conversation between the defendant and his mother * * *consists of 17.31 minutes. 

The part you heard is that part only, this part that the court has ruled is admissible.* * * 

*” 

{¶55} Appellant cites Evid.R. 106, which provides: “When a writing or recorded 

statement or part thereof is introduced by a party, an adverse party may require the 

introduction at that time of any other part or any other writing or recorded statement 

which is otherwise admissible and which ought in fairness to be considered 

contemporaneously with it.” The rule has been described as “merely a rule that 

concerns the timing of evidence that is otherwise admissible” which codifies the 

common-law “rule of completeness.” State v. Matthews, 2nd Dist. No. 24233, 2011-

Ohio-5066, ¶ 32, citing Beech Aircraft Corp. v. Rainey (1988), 488 U.S. 153, 172, 109 

S.Ct. 439, 102 L.Ed.2d 445 and Staff Notes to Evid.R. 106. Under this rule, an 
Delaware County, Case No. 11CAA070065 18 

adverse party may introduce any other document or part thereof “when one party has 

made use of a portion of a document, such that misunderstanding or distortion can be 

averted only through presentation of another portion.” Beech Aircraft, at 172, citing 7 

Wigmore, Evidence (Chadbourn Rev.1978) 653, Section 2113. 

{¶56} It is not evident from the record what possible misunderstanding or 

distortion appellant complains of, and he argues to us only that the jury was “not 

allowed to hear or see the situation under which the portion of the conversation took 

place.” Appellant’s Brief, p. 17. Appellant fails to explain how he suffered any 

prejudice from the trial court’s decision and we find no error. 

{¶57} Appellant’s fifth assignment of error is therefore overruled. 

VI. 

{¶58} In his sixth assignment of error, appellant argues the trial court erred in 

disallowing defense trial counsel to elicit from a police officer appellant’s full statement 

to him; including portions appellant claims were helpful to his defense. 

{¶59} First, we note appellant raises this alleged error without specifying what 

“exculpatory statement” the court should have allowed defense trial counsel to elicit. 

The witness had already blurted out that appellant claimed the sexual conduct was 

consensual, and there is no relevant proffer on page 336 as argued in appellant’s 

brief. 

{¶60} The trial court disallowed further admission of appellant’s statement to 

another witness because such evidence is hearsay which falls within no exception to 
Delaware County, Case No. 11CAA070065 19 

the general rule against admissibility. See, State v. Watkins, 2 Ohio App.3d 402, 442 

N.E.2d 478 (10th Dist.1981). It is well-established that self-serving statements by 

defendants, offered by the defense when a defendant does not testify, are not 

admissible. State v. Gatewood, 15 Ohio App.3d 14, 16, 472 N.E.2d 63 (1st 

Dist.1984). “If appellant wanted the exculpatory material brought before the jury he 

could not do so through the mouth of another, thereby obviating the possibility of 

cross-examination.” Id. 

{¶61} The trial court did not err in excluding appellant’s full statement to the 

investigating officer, and appellant’s sixth assignment of error is therefore overruled. 

VII. 

{¶62} In his seventh assignment of error, appellant contends the trial court 

erred in not permitting appellant “to elicit testimony relative to consent.” 

{¶63} Appellant’s specific complaint in this assignment of error goes to his 

insistence that M.R. told an investigator she took her pants off prior to the sexual 

assault. Defense trial counsel asked the investigator whether M.R. told him she took 

her pants off, appellee objected, and the trial court sustained the objection. 

{¶64} Upon cross-examination, appellant asked M.R. whether she told police 

she took her own pants off, and she responded that she didn’t remember. Trial 

counsel wanted to then ask the officer on the stand whether M.R. did in fact tell him 

she took her pants off. 

{¶65} The admission or exclusion of evidence is a matter left to the sound 

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 
Delaware County, Case No. 11CAA070065 20 

(1987). Absent an abuse of discretion resulting in material prejudice to the defendant, 

a reviewing court should be reluctant to interfere with a trial court’s decision in this 

regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). Our task is 

to look at the totality of the circumstances and determine whether the trial court acted 

unreasonably, arbitrarily, or unconscionably in allowing or excluding the disputed 

evidence. State v. Rogers, 5th Dist. No. 07 CA 106, 2008-Ohio-6630, ¶ 17, citing 

State v. Oman, 5th Dist. No. 1999CA00027, 2000 WL 222190 (Feb.14, 2000). 

{¶66} The proffered testimony of the investigator would have violated Evid.R. 

608 as extrinsic evidence of a specific instance of a witness’ conduct: appellant had 

inquired of M.R. on cross-examination about the disputed statement, but was then 

“stuck” with her answer and could not offer extrinsic evidence through another 

witness. 

{¶67} Evid.R. 608(B) states: 

Specific instances of the conduct of a witness, for the purpose of attacking or 

supporting the witness's character for truthfulness, other than conviction of 

crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. 

They may, however, in the discretion of the court, if clearly probative of 

truthfulness or untruthfulness, be inquired into on cross-examination of the 

witness (1) concerning the witness's character for truthfulness or 

untruthfulness, or (2) concerning the character for truthfulness or untruthfulness 

of another witness as to which character the witness being cross-examined has 

testified. 
Delaware County, Case No. 11CAA070065 21 

{¶68} Upon review we find the trial court’s decision to disallow the testimony 

was not unreasonable, arbitrary, or unconscionable. 

{¶69} Appellant’s seventh assignment of error is overruled. 

{¶70} Having overruled appellant’s seven assignments of error, the judgment 

of the Delaware County Court of Common Pleas is hereby affirmed. 

By: Delaney, P.J. 

Wise, J. and 

Edwards, J. concur. 

HON. PATRICIA A. DELANEY 

HON. JOHN W. WISE 

HON. JULIE A. EDWARDS 

PAD:kgb 

 
[Cite as State v. Cuthbert, 2012-Ohio-4472.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

DEWITT A. CUTHBERT : 

 : 

 : Case No. 11CAA070065 

 Defendant-Appellant : 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant. 

 

HON. PATRICIA A. DELANEY 

HON. JOHN W. WISE 

HON. JULIE A. EDWARDS