[Cite as State v. Pooler , 2021-Ohio-607.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellant

v. NE’AARICK L. POOLER Defendant-Appellee : : : : : : : : : : Appellate Case No. 28619

Trial Court Case No. 2019-CR-256 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 5th day of March, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Day ton, Ohio 45475 Attorney for Defendant-Appellee

. . . . . . . . . . . . . DONOVAN, J.-2- {¶ 1} On November 27, 2019, the State filed a motion for leave to app eal following Ne’aarick L. Pooler’s acquittal of one count of rape following a jury trial. We allowed the State’s appeal on one issue: whether certain questioning of the complaining witness violated the rape shield statute. The parties briefed the issu e and caused the record to

be filed with this court. {¶ 2} Upon review, we conclude that the trial court did not err in al lowing defense counsel to recall and question the complaining witness after th e defendant testified that she had demanded $50 for sexual activity. (The trial court had prohibited defense counsel from asking any questions of the complaining witness ab out sexual activity for money during the State’s case in chief.) {¶ 3} On January 31, 2019, Pooler was indicted on one count of rape ( force or threat of force), in violation of R.C. 2907.02(A)(2), along wit h a three-year firearm specification. The alleged victim and complaining witness was M.S. Pooler pled not guilty, and he filed several pretrial motions which are not dir ectly relevant to this appeal. {¶ 4} On October 9, 2019, at the final pretrial conference, the court acknowledged that some of M.S.’s medical records had been produced in discov ery and that defense counsel “may wish to examine” her about those records at trial. The court asked defense counsel to file a motion in that regard and for the State to re spond, addressing whether such a request “would run afoul o f the rape shield laws or anyt hing in that nature.” {¶ 5} In October 2019, Pooler’s attorney filed a motion and a supplem ental motion requesting that the defense be allowed to use M.S.’s medical re cords, because the records were necessary to Pooler’s defense. Pooler asserted th at his anticipated defense was that “the sexual activity was both consensual and p art of a quid pro quo for-3- money” and that the records, in which M.S. admitted to prostitu tion, were relevant to this

defense. {¶ 6} The State filed a notice of its intention to present impeachmen t evidence, namely statements made during a police interview in which Poole r denied knowing M.S. and denied having had sex with her. (These statements had prev iously been suppressed by the trial court because Pooler’s requests for an attorney during the interview had been denied.) The State argued that, after the s uppression hearing, defense counsel had indicated Pooler’s intention to argue that the sex was consensual, that M.S. was a prostitute, and that she was alleging rape “due to demanding money for consensual sex that Defendant did not pay.” According to the St ate, such a defense was “completely contradictory” to Pooler’s statements to the police , in which he had denied knowing her or having sex with her. The State requested that i t be permitted to impeach Pooler with his prior statements if he took the stand and testi fied to “this contradictory set

of facts.” {¶ 7} The State also filed a request for a hearing on the applicabili ty of the rape shield law. The State asserted that, during discovery, it had delivered to defense counsel some of M.S.’s therapeutic medical records in which M.S. disclo sed prior instances of sexual and drug abuse. Specifically, M.S. referenced that, at the age of 23, 1 “she learned how to prostitute.” (At the time of the indicted offen se, M.S. was 47 years old.) Further, the State asserted that, following disclosure of these documents, Pooler claimed that he knew M.S. from working at Dollar General, that he “knew her as a prostitute,” and

1 The therapeutic record itself was not admitted, and it is uncle ar whether the admission included the limitation “at the age of 23.”-4- that he refused to pay her for consensual sex, which motivated her to make the rape allegation against him. The State pointed out that M.S. was 52 years old at the time of the motion, and she had had no prostitution-related convictions or any interactions with law enforcement relating to prostitution. The State asserted: “She is not a prostitute. She was not a prostitute in 2015. She did look at a photosprea d of the Defendant. She is 100% certain that he is the man who violently raped her in M ay of 2015. This is corroborated by the semen that was left in her vagina. * * * De fendant desires to dirty up the Complaining Witness by things that he discovered in review of documents received

after his initial statements. * * *” {¶ 8} Pooler opposed the State’s motion to use suppressed statements in order to impeach him, arguing that he should not have to “choose between taking the stand in his own defense or declining to do so because of the potentially da maging character of statements unlawfully seized from him.” {¶ 9} On October 26, 2019, the trial court granted in part the State’ s motion to use Pooler’s statements for impeachment purposes only if Pooler tes tified at trial. Based on Ohio’s rape shield statute, the court also overruled Pooler’s m otion to use M.S.’s medical records at trial. Citing State v. Gardner , 59 Ohio St.2d 14, 391 N.E.2d 337 (1979), the court concluded that, “prior to Defendant taking the stand and thereby placing before the jury salient evidence of his explanation of why the encounter w as consensual, there will

be absolutely no mention at any point during the trial of Defendant’s allegations.” {¶ 10} On the day of trial, outside of the presence of the jury, the f ollowing exchange occurred:

THE COURT: * * *-5- * * * [Defense Counsel] asked a question, and that was she wan ted some clarification whether or not during the State’s case-in-ch ief, and the alleged victim * * * were on the stand, would she be permitted to crossexamine her at that time, understanding that because Mr. Pooler would not yet have testified as to the allegations that this was a prosti tution encounter - - that could only come in in the Defense’s case-in-chief - - [Defense Counsel] wondered, hey, do I nevertheless get to cross-examine [M.S.] on everything except that? And the answer is yes, you do. And I know you’ll rigorously observe the Court’s order regarding the issue of pro stitution * * *. And then of course, as we talked about, if Mr. Pooler testifie s in the Defense’s case-in-chief, and the Defense wishes to recall [M.S. ] to the stand, that it would be entirely appropriate. And then after M r. Pooler has injected the issue of prostitution into the case, then [Defense Counsel] would be free to cross-examine M.S. on the topic - - on the sub ject of prostitution; and if need be, to utilize her healthcare record that raised the issue, I guess for us all, at least in a documentary way, for t he first time. So I think that’s clear. There shouldn’t be any confusion the re. {¶ 11} At trial, evidence was presented as follows: {¶ 12} M.S. testified that on May 29, 2015, she was employed at a hote l located in Fairborn as the supervisor of the housekeeping department. Aft er work, she went to the Walmart on Miller Lane and purchased an outfit to wear to a “po ol bar” on Main Street, namely the Ashwood Lounge, where she was planning to go with tw o other women. M.S. testified that she left her home on foot and began to walk towa rd Main Street; on the way,-6- she stopped at the home of a friend on Pointview Avenue for hal f an hour and then proceeded again on foot to meet her friends. {¶ 13} M.S. testified that, when she turned onto Merrimac Avenue, she observed a sports utility vehicle (SUV) parked by the side of the road, and loud music was coming from the vehicle. The front passenger door was open, and she o bserved someone talking on the phone by the SUV. M.S. testified that, as she p assed the SUV, she “got pulled back” and pushed over the passenger seat of the car. M. S. stated that she felt something hard against her head. M.S. testified that she resis ted initially, but then “just gave up,” and she was vaginally raped. She stated that her arm s and chest were inside the vehicle at the time, and she observed a child’s car seat in the back seat of the vehicle. {¶ 14} M.S. testified that, after the rape, her attacker pulled her ou t of his vehicle, shut the door, and walked toward the front of the SUV; she ran toward the back, away from him, although her pants were still down. M.S. stated that her attacker “got in his truck and pulled off.” M.S. stated that she had never seen him before. She called 911, but she testified that she did not wait for the police to arriv e because she was scared; she “found [her] way back up to Main Street and * * * went home.” M.S. testified that she called one of the women she had planned to meet, and that woman came to M.S.’s home and took her to the hospital. M.S. stated that she began using drugs after the incident, beginning with “smoking pot, and it just led [her] to harder dr ugs - - cocaine.” She acknowledged that her drug use had led to her being put on prob ation. At the time of the trial, M.S. had worked at Woodhaven Drug Rehabilitation for ove r a year, and she testified that she had been in recovery for drugs and alcohol since March 2017. {¶ 15} Pooler testified that, at the time of the incident, he was empl oyed at Dollar-7- General and also worked as a bouncer at the Ashwood Lounge. He stated that, on May 29, 2015, he went to the Ashwood Lounge after work for a drink. Pooler testified that, as he sat in his car outside the bar texting his friends, he obser ved M.S. exit the bar; he said he recognized her as a shopper at Dollar General. Pooler testi fied that he asked M.S. if it was “deep,” or crowded, inside the bar. According to Pooler , when M.S. told him it was not crowded, he decided not to go inside, and he asked M.S. whe re she was going. He testified that M.S. stated she was going to a friend’s home, an d he offered to give her a ride. Pooler stated that he had had prior conversations with M .S., and he was friends with her daughter as well. {¶ 16} Pooler stated that M.S. got in his vehicle, a gray Grand Am. P ooler testified as follows about subsequent events: Driving, having a conversation. Asked what I’m about to get in to, told her I’m probably about to go kick it with my friends. She said - - she

offered - - I mean she insisted that she want to come. Told he r no, this is probably not your type of crowd. We started having a conversat ion. How your day; how your day? She telling me like, she’s just trying to have fun. I said, oh, for real? So what you’re trying to do? She’s like , what you trying to do? I’m like, what you trying to do? She like, let me see what you’re working with. {¶ 17} When questioned about how he interpreted M.S.’s request to see “what you’re working with,” Pooler responded that he interpreted it a s a sexual comment, and after she said that, he got “back into the alley” and “pulled [ his] penis out.” Pooler testified that M.S. gave him oral sex. Pooler stated that they subsequen tly exited the vehicle, and-8- he had vaginal intercourse with M.S. at the rear of his car. H e stated that they then returned to his vehicle, and as he was pulling off out the alle y, M.S. said “that’ll be $50.” According to Pooler, he asked what the $50 was for, and M.S. st ated “we just had sex, didn’t we?” Pooler testified he told M.S. she was “tripping,” that he was just giving her a ride, and that he would not have let her in his car if he “knew this would be the outcome.” Pooler stated that they argued and M.S. tried to negotiate for a lesser amount; “[s]he tried to go from 50 to 40, from 40 to 30. I told her I’m not giving you no money.” Pooler stated that when he dropped M.S. off, she said, “so you’re not going t o give me the money?,” and he said no. Then M.S. said, “ha, I got you.” Pooler testi fied that he “never thought four years later * * * [he] woul d be sitting here [in court].” {¶ 18} Pooler acknowledged that he had lied to the police in the cours e of his interview. He stated that, after being denied counsel, he was “scared for [his] life,” and he thought lying “was the only way to get out.” Pooler stated that he did not force M.S.

to have sex with him. {¶ 19} On cross-examination, Pooler stated that he left the Dollar Gen eral at 8:30 on the night of the incident and proceeded to the Ashwood Loung e. He was 20 years

old at the time. {¶ 20} The following exchange occurred with the prosecutor: Q. * * * And you were going to meet Van, James, and Ryan - - a ll similar age under 21 year old people. A. They’re a year older than me. Q. * * * You’re the only one who is not allowed in the bar you bounce

in.-9- A. Yes, sir. Q. * * * And then you notice the lady from the store. A. Yes, sir. Q. And this is a person you actually seem to know pretty well. I’m not saying you’re friends, but based on your testimony, not the first time you’ve seen her.

A. Yes. This is not the first time I’ve seen her. Q. Not the second time you’ve seen her. A. No, sir. Q. In fact, you’re friends with her daughter. A. Yes, sir. Q. Friends with her niece.

A. On Facebook I’m friends with her niece.

* * * Q. How often would you see her in the store? A. Her daughter and her probably like once a week, twice a wee k. Q. Once, twice a week. A. Yes, sir. Q. You’ve seen her anywhere else? A. No, sir. Q. And you were friends with her daughter, but you had no idea that according to you now, she’s a prostitute? A. Can you say that again?-10- Q. * * * You’re now accusing her of being a prostitute, right? A. Yes, sir.

* * * Q. And you worked in the area on North Main Street with regul arity?

A. Yes. Q. You’d admit there’s a lot of prostitution over there.

A. Yes. Q. And you had never seen her as part of it?

A. There’s a lot of them.

* * * Q. * * * So then you have this conversation with this woman you know, but oh, no [sic] is a prostitute, who’s a grandma, and yo u’re driving three minutes south and suddenly it turns sexual. Describe for us again

how it turned sexual. A. Told her this might not be [a] crowd that she want to kick it with because they’re way younger than her. She said I’m just trying to have fun. So okay. She was like so what you about to do? I said what yo u trying to do? It started off like that and it led to having sex. I did not rape this lady.

* * * Q. But this woman at the end of the encounter said, “I got yo u.” A. Yes, sir. Q. What did you take that to mean? A. That she was going to have her nephew, if she have a son, her-11- son, her husband, or man, or cousins, anything come up to my jo b probably try to fight me. Probably anything, you know. I didn’t give he r what she wanted. So I thought that it was only to a physical nature not being in jail, turning myself in for driving with no license, and getting char ged with rape three days later. Q. * * * Well, four years later. A. Four years and three days later. Q. She knew you all those four years? A. Yes, sir. Q. So what you’re saying is she decided to get back at you. Is that what you’re saying? A. Yes, sir.

* * * Q. And now you’re telling them today that [M.S.] is a prostitu te, aren’t you? A. Yes, sir. Q. Because that would help you out, wouldn’t it? A. No, sir. Q. You would agree with me on the 28th, you did not admit to a crime when you talked to these detectives. You didn’t admit to a crime, did you? A. I still didn’t commit (sic) to a crime.

* * *-12- Q. * * * But the easiest way to get away from these detectives was to deny? A. Yes, sir.

* * * Q. You think they would’ve let you out of the room quicker if you said yeah, I raped her? A. Probably. Q. But you didn’t say that. You said you didn’t know this wom an. That’s what you said, isn’t it? A. Yes, sir. Q. And now you want the jury to believe you know her, you know her daughter, you know her niece, and she’s a prostitute? A. Yes, sir. {¶ 21} After Pooler’s cross-examination, defense counsel indicated to the court that she intended to call M.S. to the stand, and the following exchange occurred at

sidebar: [THE PROSECUTOR]: We reiterate the objection we made in the motion. There’s a balancing test involved with this. That bal ancing test waives [sic] the rape shield statute and what it’s designed to protect versus the relevance of the testimony. In this case, there is no indi cation that this Defendant ever said anything about prostitution. He’s hanging onto a therapeutic record that has one mention of something that at th e age of 23. [M.S.] is now 52 years old. She has no arrests for prostitutio n. She has-13- no interactions with law enforcement for prostitution. This is something she said to a therapist. There is no indication that this was a pr ostitution event outside of somebody who just testified to being a known liar. And to victimize her again by putting her on the stage [sic], the Stat e thinks is beyond anything that was ever imagined by the rape shield statu te. THE COURT: I appreciate everything you just said * * *. I re ally do. And I don’t think - - I’m going to rule in Defense’s favor . So the Defense really need to try to snatch and defeat [sic] from the jaws of victory in this ruling. But I do want to state for the record that thi s is clearly - - have been a troublesome facts and issues for the Court [sic]. I don ’t think there’s any question that rape shield says what it says. I don’t think there’s any question that relating to the fact that from this one lone entr y in her health care records - - I’ve got my own doubts about it. But it’s the re. And I also think that my job is to see to it that Mr. Pooler gets to prese nt a complete defense and part of that is his claim that this was a prostitut ion encounter and the - - only thing I will say is that the - - it’s interest ing - - Evilina (phonetic) step up here, will you? Court of Appeal should know that I just asked my lawyer to ent er this little gathering, and that is so as to Mr. Pooler has now testi fied, the issue of prostitution came up after the fact which is an interesting wrinkle here. But nevertheless, he would offer it, I believe. The Defense’s position would be he’s offering it to explain why she would have a motivation to lie about

the fact that this was a consensual encounter. That is the - - that’s the-14- linchpin for his defense and I think if I - - [Mr. Prosecutor], I’ve got my doubts, okay, based on everything you just said. I’m damn sure do [sic ].

And - - but I think the Gardner case and some other cases make it pretty clear - - I think the man gets to present his defense. Defense has read my rulings as has the State, honestly. And I think I’m going to let him call [M.S.] back to the stand as I said I would, and I don’t think I have to caution the lawyer, [Defen se Counsel’s] ability and the capability and spirit of goodwill to understand that I’m only going to let this go so far. And in fact, it’s probably not go ing to go very far at all unless I miss my guess. But I’m going to let you do it because I think I’m obliged to let you do it in order for Mr. Pooler to present a defense. So that’s my ruling. Your objection is noted, [Mr. Prosecutor]. {¶ 22} After M.S. was recalled to testify by defense counsel, the foll owing exchange occurred: Q. * * * [M.S.], have you ever been engaged in prostitution?

A. No. Q. Do you recall being in treatment with an organization calle d South Community, Incorporated in Kettering, Ohio? A. Yes, that’s where I went for my therapy. Q. Do you recall during the course of this case and your conta ct with Det. Fraley that she sought to have you sign a medical rel ease for your counseling records?

A. Yes.-15- Q. * * * And do you recall that Det. Fraley was getting the co unseling records of yours?

A. Yes. Q. And you signed that release? A. Yes, I did. Q. Do you recall, [M.S.], during the time that you were engage d in counseling, you were being treated - - I don’t know if it was a psychiatrist, a psychologist, or a therapist, were you in active therapy in 201 7? A. If it was at South Community, yes, I was. Q. * * * And I have your records before me and if I would show you notes from your therapist regarding those therapy sessions, wou ld it refresh your recollection?

A. Yeah. Q. I’m actually going to hand you the complete record. But I’ ll just - - I’ve noted the page. A. Okay. Q. * * * First, just for our own edification, I have here you r signed

release.

A. Yes. Q. * * * I don’t know if you’ve ever seen these.

A. No. Q. I would please like to direct your attention to a notation here. I have it highlighted.-16- A. “I learned how to prostitute and stole checks.” * Q. * * * So you learned how to prostitute and you stole checks; is that right?

A. Yeah. {¶ 23} In response to questions by the prosecutor, M.S. acknowledged t hat she was ordered to seek drug treatment at South Community while on probation in Montgomery County. M.S. acknowledged that the records reflecte d that her drug use began at the age of 23 with crack, and that at the time, she re sided in Waukegan, Illinois. M.S. acknowledged that, during her therapy, she said that she s tole checks and learned how to prostitute at the age of 23 in the City of Waukegan, Ill inois. (The therapeutic records themselves were not proffered nor sought to be admitted by either the State or the defense.) M.S. testified that she did not “continue prosti tuting” after leaving Waukegan, “[b]ecause some really bad things happened.” M.S. te stified that categorizing her as a prostitute at age 47 was “completely wron g.” She further testified that she had lived in the Dayton area since 2007 or 2008, and t hat she had never been arrested or had interaction with law enforcement based on prost itution during that entire

time. {¶ 24} On October 31, 2019, the jury found Pooler not guilty of rape, and the court entered an order of acquittal on firearm specification. {¶ 25} On appeal, the State raises one assignment of error:

THE TRIAL COURT VIOLATED OHIO’S RAPE-SHIELD STATUTE WHEN IT ALLOWED POOLER’S COUNSEL TO QUESTION M.S. ABOUT

WHETHER SHE PREVIOUSLY HAD BEEN A PROSTITUTE.-17- {¶ 26} Quoting Gardner , 59 Ohio St.2d 14, 391 N.E.2d 337, the State asserts that the “objective of the rape-shield law is to discourage the tend ency in rape cases to ‘try the victim rather than the defendant’ by ‘guarding the complain ant’s sexual privacy and protecting her from undue harassment’ and ‘encourag[ing] the re porting of rape, thus aiding crime prevention.’ ” The State acknowledges that applica tion of the rape-shield statute, R.C. 2907.02(D), may not unduly infringe upon a defend ant’s constitutional rights, such as the right to present a defense, and but it argues that the trial court must “balance the interests advanced by the statute against the probative val ue of the evidence at issue.” {¶ 27} The State points out that the trial court initially recognized that the rape shield statute prohibited Pooler’s counsel from questioning M.S . about being a prostitute when she testified in the State’s case-in-chief, but then allow ed M.S. to be recalled in Pooler’s case-in-chief “for the sole purpose of questioning her about being a prostitute.” According to the State, “there is no legal rationale for applyi ng the rape-shield statute differently depending upon whether the witness is called in the state’s case-in-chief versus the defendant’s case,” and any questioning of M.S. about her past sexual activities violated R.C. 2907.02(D) regardless of when she was questioned. {¶ 28} The State further contends that Gardner “actually goes against the trial court’s decision,” because Pooler did not offer any direct or i ndirect evidence to suggest “that financial arrangements were entered into between Pooler a nd M.S. for sexual activities.” Rather, Pooler testified to just the opposite: he told the jury that he did not know that M.S. was a prostitute and was unaware that M.S. expec ted to be paid for the sex they had. {¶ 29} The State argues that Gardner “explicitly excludes” the type of-18- impeachment evidence that the trial court permitted, namely all owing Pooler to impeach M.S.’s testimony denying that she engaged in prostitution by me ans of her medical records, which indicated she had learned how to prostitute over 20 years earlier in Illinois. Additionally, the State argues that, because M.S. was a defense witness at the time she was asked about being a prostitute, the trial court allowed the defense to impeach its own witness with prior inconsistent statements, in violation of Evi d.R. 607(A); Evid.R. 607(A) prohibits a party from impeaching its own witness by means of a prior inconsistent statement without first showing surprise and affirmative damage . The State contends that the defense was not surprised by M.S.’s denial that she wa s a prostitute; rather, it appears that it was part of the defense’s strategy to set M.S. up to make such a denial precisely so that the defense could then score points with the jury by impeaching her. The State argues that the trial court erred as a matter of law by aiding Pooler’s lawyers in engaging in such behavior. {¶ 30} Finally, the State asserts that, significantly, “M.S. was never asked if she engaged in prostitution with Pooler on the night in question. She was instead asked only if she had ever engaged in prostitution generally, and was then confronted with the statement she made to her therapist.” According to the State, Evid.R. 404(A) precludes the admission of character evidence “for the purposes of provin g action in conformity therewith on a particular occasion,” and therefore explicitly p recludes the introduction of character evidence of rape victims when such evidence is covere d under the rape-shield

statute. {¶ 31} In response, Pooler asserts that the State first elicited testi mony that M.S. was a prostitute when it cross-examined Pooler, and therefore t he prosecution, rather-19- than the defense, put the issue of M.S.’s alleged prostitution before the jury. Pooler argues that the State “opened the door” for this type of testim ony, directing our attention to the prosecution’s closing argument, in which M.S. was charac terized as a prostitute. Pooler asserts that, if there was any error in the introduction of such evidence, it was created “when the prosecution cross examined Mr. Pooler introdu cing the issue of M.S. being a prostitute,” in violation of the trial court’s October 26, 2019 order about such evidence. Pooler contends that his testimony was “about an ext ortion attempt” until the prosecution framed the issue in terms of prostitution, in viola tion of Evid.R. 404(B), and that the State’s argument should be rejected under the “invited error” doctrine. {¶ 32} Additionally, Pooler argues that the rape shield law, R.C. 2907 .02(D), did not apply because of the “Multiple Admissibility Doctrine.” Ci ting Evid.R. 404(B), Pooler asserts that he offered evidence of M.S.’s knowledge of prostit ution as proof of a motive, intent or plan to falsely accuse him of rape, not as evidence o f her sexual history or that she was acting in character as a prostitute. According to Pool er, in light of M.S.’s “threat” – “ha, I got you” -- her history of prostitution and dishonesty were relevant to her motive, intent, or plan. {¶ 33} Pooler argues that the trial court properly applied the balanci ng test set forth

in Gardner, 59 Ohio St.2d 14, 391 N.E.2d 337. He asserts that the defense offered M.S.’s history of prostitution because it was relevant to her m otive to falsely accuse him of rape after he refused her “extortion demand” for money after a consensual sexual encounter. Thus, it was not offered to impeach M.S. but to dem onstrate her motive to

lie about her extortion of Pooler. {¶ 34} According to Pooler, the State does not acknowledge that it int roduced-20- M.S.’s prostitution in the course of its cross-examination of h im. Pooler also argues that the evidence elicited from M.S. in the defense’s case-in-chief, i.e., that M.S. was familiar with sex for money and this was a motive for her to lie about t he rape, did not violate her “sexual privacy” as it did not get “into specifics or any other private sexual matter and the testimony was not used as harassment,” did not put the victim o n trial, and would not discourage the reporting of rape. Pooler argues that his “dire ct testimony was M.S. demanded money after they had a consensual sexual encounter. A s a matter of law, demanding money after sex is not prostitution.” Pooler argues that the State “interpreted facts indicative of extortion and called them prostitution” and therefore itself raised the issue of M.S.’s being a prostitute. Finally, Pooler asserts th at the testimony in the record about M.S.’s sexual history was “not inflammatory or prejudicia l” and, in fact, defense counsel’s examination of M.S. made her “sympathetic” as a woman who apparently had mental health and substance abuse problems. {¶ 35} Pooler was acquitted of rape at trial. Although the State’s a ppeal will have no bearing on Pooler’s acquittal, the State seeks a legal deter mination of whether the trial court properly allowed the evidence related to M.S.’s prostitut ion. {¶ 36} “Trial courts have discretion over the admission or exclusion o f evidence,

and we review the court's decision for abuse of discretion. State v. Dyer , 2017-Ohio-8758, 100 N.E.3d 993, ¶ 24 (2d Dist.). ‘A trial court abuses its dis cretion when it makes a decision that is unreasonable, unconscionable, or arbitrary. A n abuse of discretion includes a situation in which a trial court did not engage in a “sound reasoning process.” Abuse-of-discretion review is deferential and does not permit a n appellate court to simply substitute its judgment for that of the trial court.’ ” State v. Snowden , 2019-Ohio-3006,-21- 140 N.E.3d 1112, ¶ 55 (2d Dist.), quoting State v. Darmond , 135 Ohio St.3d 343, 2013- Ohio-966, 986 N.E.2d 971, ¶ 34. {¶ 37} R.C. 2907.02, Ohio’s rape shield statute, provides: (D) Evidence of specific instances of the victim's sexual activ ity, opinion evidence of the victim's sexual activity, and reputatio n evidence of the victim's sexual activity shall not be admitted under this s ection unless it involves evidence of the origin of semen, pregnancy, or disease , or the victim's past sexual activity with the offender, and only to th e extent that the

court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh i ts probative

value. (E) Prior to taking testimony or receiving evidence of any sexu al activity of the victim * * * in a proceeding under this section , the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not le ss than three days before trial, or for good cause shown during the trial. {¶ 38} With respect to R.C. 2907.02, this Court has noted: * * * “Even if one of the foregoing exceptions applies, intro duction of such evidence is permitted only if the court finds that the evidence is material to a fact at issue and that its prejudicial nature doe s not outweigh its probative value.” In re Michael , 119 Ohio App.3d 112, 118, 694 N.E.2d 538 (2d Dist.1997), citing R.C. 2907.02(D). “Application of the rape shield law may not, however, unduly in fringe-22- upon a defendant's constitutional rights.” Id. “The Confrontation Clause of the Sixth Amendment to the United States Constitution gives the accused the right to be confronted with the witnesses against him.” State v. Lang, 128 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83. Even so, “[t]he rights to confront witnesses and to defend are not absol ute and may bow to accommodate other legitimate interests in the criminal p rocess.” State v. Boggs , 63 Ohio St.3d 418, 722, 588 N.E.2d 813 (1992). “In determining whether the rape shield law would unconstitutio nally infringe on a defendant’s rights, a court must ‘balance the sta te interest which the statute is designed to protect against the probative value of the

excluded evidence.’ ” State v. Craig , 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 66, quoting State v. Gardner , 59 Ohio St.2d 14, 17, 391 N.E.2d 337 (1979). Accord State v. Hennis , 2d Dist. Clark No. 2003 CA 21, 2005-Ohio-51, ¶ 48. The Ohio Supreme Court has recognized that “several legitimate state interests are advanced by the [rape] shield law,” namely: First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defend ant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that i s unduly inflammatory and prejudicial, while being only marginall y probative, the statute is intended to aid in the truth-finding process.-23- (Footnote omitted.) Gardner at 17. On the other side of the scale, “[t]he key to assessing the probative value of the excluded evidence is its relevancy to the matters as proof of

which it is offered.” Gardner at 18 . “ ‘Cases decided since Gardner * * *

have established that in order for the contested evidence to be admissible, it must be submitted for a more important purpose than mere imp eachment of a witness's credibility.’ ” State v. Hicks , 2d Dist. Montgomery No. 17730, 2000 WL 646505, *4 (May 19, 2000), quoting In re Michael , 119 Ohio App.3d 112, 119, 694 N.E.2d 538. Accord Hennis at ¶ 52 (“impeaching a witness's credibility is an insufficient reason for admitting e vidence that violates the Rape Shield Law”).

State v. McNeal , 2d Dist. Montgomery No. 28123, 2019-Ohio-2941, ¶ 33-36. {¶ 39} In Hicks , this Court noted that there “are well recognized constitution al limitations to the rape-shield statute which require that provi sion to yield when its application unduly infringes upon an accused's constitutional r ight to confront his accusers or present a defense.” Hicks at *4. {¶ 40} As noted above, it “is within the sound discretion of the trial court to determine the relevance of evidence and to apply the rape shiel d law to best meet the purposes behind the statute. * * *.” In re Michael at *119. The evidence the court admitted from M.S.’s therapeutic records, namely the single lin e attributed to M.S. and recorded by her therapist, “I learned how to prostitute and sto le checks,” was not within the exceptions to the rape shield statute, namely evidence of t he origin of semen, pregnancy, or disease, or the victim's past sexual activity wit h the offender. The State’s-24- interests, as set forth above, had to be balanced against Poole r’s constitutional right to confront M.S. and present a defense. Pooler’s defense was that his encounter with M.S. was a consensual one, and that she was motivated to fabricate t he rape allegation when he refused to pay her after the encounter. Pooler testified th at M.S. initially indicated that she was “just trying to have fun” before the encounter, but the n demanded $50 afterward and continued to try to negotiate payment. Pooler testified th at he did not intend to commit forcible rape, and that M.S. only stated “got you,” in a manner Pooler perceived to be threatening, when he refused to pay. As the trial court noted, Pooler offered the evidence to demonstrate why M.S. would have a motive to lie abo ut the fact that this was a consensual encounter, which the court characterized as the “l inchpin” of his defense. {¶ 41} While the evidence of M.S.’s having admitted to prostitution en croached on M.S.’s sexual privacy, the intrusion was not meant to harass or humiliate her, or to attack her credibility in general. The trial court could have reasona bly concluded that the probative value of M.S.’s admission to engaging in prostitution outweighed any interest the State had in its exclusion. It also could have reasonably concluded that application of the rape shield law in this instance would have hindered the truth-finding process. Under these circumstances, the “well recognized constitutional limitations to the rapeshield statute which require that provision to yield when its a pplication unduly infringes upon an accused's constitutional right to confront his accusers or present a defense” applied. Significantly, although the State objected to M.S.’s being recalled to the stand, it did not object to the question regarding prostitution. Henc e, the State cannot now be heard to complain that the question asked should have been limi ted to whether M.S. demanded money for sex from Pooler. We conclude that the court properly applied the-25- balancing test set forth in Gardner in deciding not to exclude the evidence. In other words, we find no error in the trial court’s admission of the e vidence.

. . . . . . . . . . . . . TUCKER, P.J., concurs: {¶ 42} If I had been the trial judge, I would not have allowed M.S. to be interrogated about her alleged, and long ago, prostitution history. Without dispute, this testimony violated the rape shield law. And, in my opinion, the testimon y’s “prejudicial nature * * * outweigh[ed] its probative value.” In re Mitchell , 119 Ohio App.3d 112, 118, 694 N.E.2d 538 (2d Dist.1977). Given this, I do not concur in the majorit y opinion’s statement that “application of the rape shield law in this [case] would have h indered the truth-finding process” or the majority opinion’s conclusion that, under the c ircumstances of this case, Pooler’s right to confront M.S. trumped the rape shield prohibi tion. {¶ 43} Nonetheless, I concur in the majority opinion because I cannot conclude the trial court abused its discretion by allowing the disputed test imony. The trial court applied the balancing test mandated by Gardner , 59 Ohio St.2d 14, 391 N.E.2d 337, and after so doing, it permitted the testimony. Based upon the trial court’ s application of the required balancing test, I cannot conclude that the trial court’s eviden tiary ruling amounted to an abuse of discretion, though I would have reached a different de cision on admissibility.

HALL, J., dissents: {¶ 44} There is no constitutional right for a defendant to ask a victi m of a rape charge, “Have you ever been engaged in prostitution?” (Tr. 640. ) {¶ 45} There is but one question to resolve in this appeal: does the c onstitutional-26- right to present a defense trump the rape-shield statute to all ow a defendant to inquire whether the victim had ever been a prostitute just because the defendant claims the victim attempted to extort money from him after what he claimed was co nsensual sex? There is no question in this case that the evidence permitted by the tri al court, that the victim may have engaged in prostitution 25 years ago, was within the purvi ew of the rape-shield statute. The trial court recognized the evidence would be exclu ded by the statute. The issue is whether the defendant’s right to present a defense ove rrode the rape-shield prohibition. {¶ 46} To put the question in context, I reiterate the relevant factua l parameters. The victim testified she was forcibly raped. Pooler testified that, after he and the victim engaged in consensual sex, she demanded money from him. He refu sed. To be picky, that sounds like extortion, not prostitution. Prostitution con sists of an agreement to perform a sexual act for a price. Pooler denied he ever made s uch an agreement. And any reasonable person who “learned how to prostitute” (Tr. 641) would have required either payment or a demonstration of ability to pay before perf ormance. {¶ 47} But more importantly, there was no indication that the victim w as currently, or even recently, engaged in prostitution. The court was aware that “[s]he has no interactions with law enforcement for prostitution. This is som ething she said to a therapist. There is no indication that this was a prostitution event” (Tr. 637) other than Pooler’s testimony about attempted extortion. Had the court co nducted a more complete hearing in chambers, as required by R.C. 2907.02(E), it would h ave learned that the victim “learned how to prostitute” at age 23 in Illinois, almost 25 ye ars before the reported rape. (Tr. 644.) She had not been engaged in prostitution since she left Illinois. ( Id .) While-27- living in Dayton for the previous 11 or 12 years, she had not b een arrested for prostitution and had not had any interaction with law enforcement related to prostitution (Tr. 647.) She was not a prostitute. (Tr. 644.) {¶ 48} Analysis must start with the undeniable rape-shield restriction that a victim’s sexual activity is, with exceptions inapplicable in this case, inadmissible. “ Evidence of specific instances of the victim's sexual activity, opinion evi dence of the victim's sexual activity, and reputation evidence of the victim's sexual activi ty shall not be admitted under this section unless it involves evidence of the origin of semen , pregnancy, or disease, or the victim's past sexual activity with the offender, and only t o the extent that the court

finds that the evidence is material to a fact at issue in the c ase and that its inflammatory or prejudicial nature does not outweigh its probative value.” R.C. 2907.02(D). {¶ 49} The often-referred to case of Gardner , 59 Ohio St.2d 14, 391 N.E.2d 337, does not provide support for the trial court’s decision. Indeed , Gardner stated that evidence of a reputation as a prostitute “is not sufficiently probative of consent to outweigh the state's legitimate interests in excluding the testimony, at least where there is no suggestion in the record that financial arrangements were enter ed into for sexual activities

in this instance.” Id. at 18 . Although the last phrase of that Gardner passage has been quoted many times, that phrase was not the holding of the case. In Gardner, there was no evidence of financial arrangements in the sexual encounter f or which Gardner was on trial. The victim testified that she never had engaged in pros titution. Gardner wanted to call a witness to testify that he, the witness, previously h ad been solicited by the victim for sex. That was not permitted, and the Supreme Court affirme d. So the Gardner decision’s language stating that “at least where there is no su ggestion in the record that-28- financial arrangements were entered into for sexual activities in this instance” was a

limitation on the Gardner decision, not the holding of the case, and the phrase was dict a. Therefore, that language should not be used to throw the baby o ut with the bath water when analyzing rape-shield evidence. {¶ 50} Without question, “[t]he rights to confront witnesses and to de fend are not absolute and may bow to accommodate other legitimate interests in the criminal process.” State v. Boggs , 63 Ohio St.3d 418, 422, 588 N.E.2d 813 (1992). The directive of Gardner

is that a court must “balance the state interest which the stat ute is designed to protect against the probative value of the excluded evidence.” Gardner at 17. That means a trial court should determine the relevance, if any, of the prop osed evidence and weigh its admission against the legitimate rape-shield statute prohibitio ns so that cases do not devolve into the once-approved tactic of trashing and embarrass ing the victim with irrelevant or marginally-relevant evidence outweighed by prejud icial effect. {¶ 51} Here, the trial court’s identified theory of relevance for the disputed evidence was motivation to lie. “The Defense’s position would be he’s of fering [the disputed evidence] to explain why she would have a motivation to lie abo ut the fact that this was a consensual encounter.” (Tr. 638.) Such evidence then specifica lly goes to the credibility of the victim. The rape-shield statute does not permit evidence of a victim's sexual history when offered solely to impeach the victim's credibility unless it is otherwise material to a

fact at issue in the case. State v. Minton, 2016-Ohio-5427, 69 N.E.3d 1108, ¶ 30 (4th Dist.), citing State v. Ferguson , 5 Ohio St.3d 160, 450 N.E.2d 265 (1983). Evidence that a person is engaged in or recently has engaged in prostitution arguably could be relevant to whether the encounter was a consensual prostitution event. But the evidence Pooler-29- wanted to offer had nothing whatsoever to do with whether the v ictim was currently or even recently a prostitute, or was streetwalking and picking up strange men in the area where the encounter occurred, or was known to demand money afte r consensual sex.

The evidence the defense offered was not evidence from “Johns” who claimed she was currently, or even recently, engaged in prostitution. I fail to see how evidence that the victim “learned how to prostitute” 25 years earlier was allowed by the rape-shield statute.

The trial court concluded that Pooler should be able to introdu ce evidence of his defense “that this was a prostitution encounter.” (Tr. 637.) In my opi nion, that conclusion was directly contrary to the rape-shield statute and case law inter preting it. {¶ 52} Evidence that the victim “learned how to prostitute” 25 years e arlier in another state also simply was not relevant to whether she had a motivation to lie regarding being raped in May 2015. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evi dence.” Evid. R. 401. Here, Pooler claimed M.S. demanded money after consensual sex. Whether the victim was or had been a prostitute did not make the victim’s motivati on to lie any more or less probable at all. Evidence that a person is a prostitute provid es no better indication that the person is motivated to get back at a defendant for failing to pay money after sex than any other person who would ask for money after sex and be denie d. A non-prostitute victim who demands money after sex and is rebuffed has just as much if not more motivation to report the encounter as a rape than a prostitute. In fact, it is more reasonable to conclude that the prostitute, if anything, would be more likely to recognize and accept failure to pay as a hazard of the business and move on. Therefore, evidence-30- about what the victim learned 25 years before her testimony mad e it no more probable that there was a motivation to fabricate a story than someone w ho did not have such a distant history. Because the evidence was not relevant, it was inadmissible by rule. {¶ 53} Furthermore, t he defense’s argument and the court’s decision suggest that a victim who demands and is refused money after consensual sex would be motivated by the denial of payment to report the encounter to police, go to a hospital for a rape exam, then years later identify the defendant in a photospread, parti cipate in prosecution by testifying to the circumstances before a jury, and return to co urt in response to a defense subpoena. In my opinion, the idea that all of this activity was a contrivance because of a failure to pay money demanded after consensual sex was not only unrelated to whether the unpaid victim was a prostitute, it was also just plain ludi crous. {¶ 54} One only has to look at the defense’s first question (“Have you ever been a prostitute?”) to see that the evidence was introduced not to ad dress the encounter between Pooler and victim, but to sully the victim’s reputation , pure and simple. I borrow

sentiments from decisions of sister states. In Haynes v. State , 498 S.W.2d 950, 952 (Tex.Crim.App.1973), the court observed that, even if it were p roven that the victim was a prostitute, “this would not have proved consent, or made her any the less the subject of rape by force. A prostitute does not lose the right of choice, and may consent or not consent according to her own will.” And in Brewer v. United States , 559 A.2d 317, 321 (D.C.1988), the court stated: “[I]t cannot be assumed that pros titutes will accept every opportunity that comes along to engage in sexual relations. The fact that a woman is a prostitute, which may prove that she has had consensual sex wit h others, has nothing to do with whether she consented to sexual intercourse with a part icular defendant. Even a-31- prostitute can be raped.” {¶ 55} I firmly believe that, in the absence of some current or recent evidence of prostitution, the question of what the victim did 25 years ago was wholly inadmissible. But even if one believed that a connection with prostitution ha d some evidentiary value, on this record the trial court abused its discretion by not lim iting the questioning to current events. The trial court carefully should have outlined the para meters of the defense questioning and never should have permitted the defense to ask whether the victim ever had engaged in prostitution. I note the complete absence of an y information, even from Pooler, who claimed to recognize the victim and know her family , of any prostitution by the victim. The available evidence of what the victim may have learned 25 years earlier was quite remote. She denied having engaged in prostitution sin ce she came to Dayton 10 or 11 years earlier. She had had no arrests or contacts wit h police regarding prostitution during those 10 or 11 years. The defense could not point to any outside evidence of recent prostitution activity by M.S. Nor could the defense point to outside evidence of prostitution activity by M.S. that was similar to t he facts of the encounter between M.S. and Pooler. In fact, other than Pooler’s contenti on that M.S. demanded money after sex, there was no testimonial evidence related to t he specific sexual encounter at issue that was directly probative of the material issue of consent. {¶ 56} In State v. Ciacchi , 8th Dist. Cuyahoga No. 92705, 2010-Ohio-1975, the question was whether evidence of the victim's solicitations for sex in exchange for money was offered merely to impeach the victim's credibility, which w as inadmissible, or whether it was directly probative of the element of consent. There, the defendant testified that the victim had propositioned him on the street and that he went to her apartment after paying-32- her $20 for oral sex. Id. at ¶ 18. The trial court had prevented the defendant from providing further details of the conversation that occurred on the street and inside the victim's apartment. The Eighth District reversed the defendant ’s conviction and ordered a new trial. The appellate court found the evidence was “not pr ecluded by Ohio’s rape shield law” because the victim's statements soliciting sex for money on the street and the victim’s statements made at her apartment were “directly relate d to the specific sexual

encounter at issue in the case.” Id . at ¶ 24. Thus, the testimonial evidence went directly

to the issue of consent. Id. The same criteria should have applied here. If Pooler had evidence “directly related to the specific sexual encounter at issue in the case,” then in

the discretion of the trial court it could be admissible. But the trial court abused its discretion below by allowing remote, disconnected, decades-old evidence of marginally probative value. {¶ 57} For the foregoing reasons, I dissent.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Richard L. Kaplan Hon. Steven K. Dankof