[Cite as State v. Bruce, 2023-Ohio-3298.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

UNION COUNTY

STATE OF OHIO,

CASE NO. 14-22-11

 PLAINTIFF-APPELLEE,

 v.

TIMOTHY ALLEN BRUCE, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court

Trial Court No. 19-CR-0239

Judgment Reversed

Date of Decision: September 18, 2023

APPEARANCES:

Dennis W. McNamara for Appellant

Raymond Kelly Hamilton for Appellee
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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Timothy A. Bruce (“Timothy”) appeals the 

judgment of the Union County Court of Common Pleas, arguing that he was denied 

his right to the effective assistance of counsel. This appeal is not primarily about 

whether Timothy is guilty of the charges against him but is ultimately about whether 

Timothy received a fair trial on the charges against him. For the reasons set forth 

below, the judgment of the trial court is reversed. 

Facts and Procedural History

{¶2} R. is the daughter of Randy. In 2016, Randy moved to Florida to seek 

treatment for his substance abuse issues. At that time, Randy’s mother, Kimberly, 

received custody of R. and became her primary caregiver. Kimberly has also 

functioned as the primary caregiver of her ex-husband, Timothy, since the time he 

had suffered a traumatic brain injury in a motor vehicle accident in 1999. This 

injury has affected Timothy’s cognitive and physical abilities through the present 

day.

{¶3} While she had custody of R., Kimberly worked as a registered nurse. 

When Kimberly was at work, she would have Timothy supervise R. several days a 

week after school at his apartment. During this time, Kimberly’s mother, Nancy, 

frequently visited with R. A family friend, Brandee, also lived with Kimberly and 

R. for roughly nine months in this general timeframe. 
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{¶4} In August of 2018, R. traveled to Florida to stay with Randy for roughly 

ten days. On August 7, 2018, R. had a conversation with her father in which she 

disclosed allegations of sexual misconduct that involved Timothy. At this time, R.

was eight years old. Randy then proceeded to file a police report in Florida. As the 

misconduct was alleged to have occurred in Ohio, the police in Florida forwarded 

this report to the City of Marysville Division of Police in Ohio where Detective 

Dennis Flanagan (“Detective Flanagan”) began an investigation into the allegations. 

A copy of this report was also forwarded to Molly Vance at Children’s Services in 

Union County. 

{¶5} After R. returned to Ohio, she was interviewed at the Center for Family 

Safety and Healing at Nationwide Children’s Hospital (“Nationwide Hospital”) on 

August 15, 2018. Nancy and Kimberly were present with R. during this process and 

discussed the allegations with the staff at Nationwide Hospital. After this interview, 

Detective Flanagan met with Kimberly, Nancy, and R. at Kimberly’s house. 

{¶6} On August 29, 2018, R.’s school received a report from a parent of a 

student that R. was watching pornography on her phone on the school bus. The 

school conducted an investigation into this matter but found no evidence on her 

phone that would corroborate the parent’s report. On August 31, 2018, R. went to 

the office of the school nurse, Courtney Thompson, and then wrote down her 

allegations in a letter addressed to her teacher. This precipitated a conversation 

between R. and the school principal, Thomas Holdren. 
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{¶7} As part of his investigation, Detective Flanagan conducted interviews 

with Kimberly, Brandee, and Nancy. He also conducted a search of Timothy’s 

apartment where he discovered pornographic DVDs and a laptop containing a 

number of pornographic materials. The police took these items into evidence as R. 

had alleged that Timothy had shown her pornographic videos on his television. 

{¶8} On October 10, 2019, Timothy was indicted on one count of voyeurism 

in violation of R.C. 2907.08(C), a felony of the fifth degree; one count of 

disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1), a 

felony of the fourth degree; one count of importuning in violation of R.C. 

2907.07(A), a felony of the third degree; three counts of gross sexual imposition in 

violation of R.C. 2907.05(A)(4), felonies of the third degree; and four counts of rape 

in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree. 

{¶9} A jury trial on these charges occurred between February 28, 2022 and 

March 2, 2022. By this time, R. was eleven years old. On the first day of trial, the 

State called Randy and two employees of the Center for Family Safety and Healing 

at Nationwide Children’s Hospital. On the second day of trial, the State began by 

calling the forensic nurse, Gail Hornor (“Hornor”), who had conducted a physical 

examination of R., to testify. At trial, Hornor affirmed that the medical examination 

did not produce any physical evidence to corroborate her allegations. Hornor 

testified that R.’s “exam was normal” but that these results did not foreclose the 
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possibility of the conduct alleged by R. (Mar. 1 Tr. 22-23). The State then had 

Thomas Holdren and Courtney Thompson testify before calling R. as a witness.

{¶10} On taking the stand, R. testified that, at various times beginning just 

after her seventh birthday, Timothy had shown her pornographic videos; watched 

her while she was showering; touched the insides of her privates with his fingers;

put his tongue on her chest and genitals; and contacted parts of her body with his 

genitals, including her mouth. After this testimony, the State called Molly Vance 

and Detective Flanagan to testify.

{¶11} On the third day of trial, the Defense called Kimberly, Nancy, and 

Brandee to testify as witnesses. On March 3, 2022, the jury returned verdicts of 

guilty on all of the charges against Timothy. On March 24, 2022, the trial court 

sentenced Timothy and issued its judgment entry of sentencing. The trial court 

imposed multiple life sentences on Timothy without the possibility of parole. 

Assignment of Error

{¶12} Timothy filed his notice of appeal on April 22, 2022. On appeal, he 

raises the following assignment of error:

Mr. Bruce was denied the effective assistance of counsel during 

his trial; Sixth and Fourteenth Amendments of the United States 

Constitution and Article I, Section 10 of the Ohio Constitution. 

Timothy argues that his counsel was deficient for his failure to object to the 

introduction of inadmissible exhibits or testimony on roughly thirty occasions that 

are identified in his brief. 
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Legal Standard

{¶13} “Under Ohio law, ‘a properly licensed attorney is presumed to carry 

out his duties in a competent manner.’” State v. Harvey, 3d Dist. Marion No. 9-19-

34, 2020-Ohio-329, ¶ 57, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993 

WL 270995 (July 22, 1993). “For this reason, the appellant has the burden of 

proving that he or she was denied the right to the effective assistance of counsel.” 

State v. Cartlidge, 3d Dist. Seneca No. 13-19-44, 2020-Ohio-3615 ¶ 39. “In order 

to prove an ineffective assistance of counsel claim, the appellant must carry the 

burden of establishing (1) that his or her counsel’s performance was deficient and 

(2) that this deficient performance prejudiced the defendant.” State v. McWay, 3d 

Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington, 

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶14} In order to establish deficient performance, the appellant must 

demonstrate that trial “counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

State v. Morrissey, 2022-Ohio-3519, 198 N.E.3d 554, ¶ 26 (3d Dist.), quoting 

Strickland at 687. “Tactical or strategic trial decisions, even if unsuccessful, do not 

generally constitute ineffective assistance.” McWay at ¶ 24, quoting State v. 

Pellegrini, 3d Dist. Allen No. 1-12-30, 2013-Ohio-141, ¶ 40.

{¶15} “In order to establish prejudice, ‘the defendant must show a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would have 
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been different.’” State v. Berry, 3d Dist. Union No. 14-20-05, 2021-Ohio-1132, ¶ 

122, quoting State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.). If the 

appellant does not establish one of these two prongs, the appellate court does not 

need to consider the facts of the case under the other prong of the test. State v. 

Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State v. Walker, 

2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.).

Legal Analysis

{¶16} On appeal, Timothy argues that his defense counsel was deficient for 

failing to object on roughly thirty different occasions that he identifies in his brief. 

Timothy divides these instances of alleged deficient performance into four

categories: impermissible other acts evidence, improper opinion testimony, 

inadmissible hearsay statements, and improper prosecutorial comments during 

closing arguments. In our analysis, we will divide these thirty alleged instances into 

the four categories used by Timothy and will then analyze whether each of these 

instances represents an error. After examining whether these identified instances 

constituted errors, we will turn to examining whether Timothy carried the burden of 

demonstrating prejudice.

I. Deficient Performance Analysis: Other Acts Evidence

{¶17} “A hallmark of the American criminal justice system is the principle 

that proof that the accused committed a crime other than the one for which he is on 

trial is not admissible when its sole purpose is to show the accused’s propensity or 
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inclination to commit crime.” State v. Sutherland, 2021-Ohio-2433, 173 N.E.3d 

942, ¶ 8 (2d Dist.), quoting State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 

(1975), citing 1 Underhill’s Criminal Evidence, Section 205, 595 (6th Ed. 1973). 

The reasons for this principle are

(1) The overstrong tendency to believe the defendant guilty of the 

charge merely because he is a person likely to do such acts; (2) the 

tendency to condemn not because he is believed guilty of the present 

charge but because he has escaped punishment from other offenses; 

(3) the injustice of attacking one who is not prepared to demonstrate 

the attacking evidence is fabricated; and (4) the confusion of issues 

which might result from bringing in evidence of other crimes.’

Curry at 68, quoting Whitty v. State, 34 Wis.2d 278, 292, 149 N.W.2d 557, 563

(1967). This logic extends to evidence of other prior wrongs or bad acts. State v. 

Merritt, 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 19. For this reason, 

“[a]s a general rule[,] evidence of prior crimes, wrongs, or bad acts is inadmissible 

if it is wholly independent of the charge for which an accused is on trial. State v. 

Fannon, 2018-Ohio-5242, 117 N.E.3d 10, ¶ 67 (4th Dist.). 

{¶18} “Evid.R. 404(B)[(1)] categorically prohibits evidence of a defendant’s 

other acts when its only value is to show that the defendant has the character or 

propensity to commit a crime.” State v. Smith, 162 Ohio St.3d 353, 2020-Ohio4441, 165 N.E.3d 1123, ¶ 36, citing Evid.R. 404(B). In other words, “evidence 

which tends to show that the accused has committed other crimes or acts 

independent of the crime for which he stands trial is not admissible to prove a 

defendant’s character or that the defendant acted in conformity therewith.” State v. 
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Wendel, 2016-Ohio-7915, 74 N.E.3d 806 (3d Dist.), quoting State v. Hawthorne, 

7th Dist. Columbiana No. 04 CO 56, 2005-Ohio-6779, ¶ 24. See Evid.R. 404(A).

{¶19} However, Evid.R. 404(B)(2) contains a list of permitted uses for 

evidence of other crimes, wrongs, or acts. Evid.R. 404(B)(2). This provision states 

that such evidence may be used to establish “motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 

Evid.R. 404(B)(2). 

The admissibility of other acts evidence is ‘carefully limited because 

of the substantial danger that the jury will convict the defendant solely 

because it assumes that the defendant has a propensity to commit 

criminal acts, or deserves punishment regardless of whether he or she 

committed the crime charged in the indictment.’

State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 33, quoting In re 

Sturm, 4th Dist. Washington No. 05CA35, 2006-Ohio-7101, ¶ 51. 

{¶20} “In determining whether other acts evidence is admissible, the Ohio 

Supreme Court has set forth a three-step analysis.” State v. Richey, 2021-Ohio1461, 170 N.E.3d 933, ¶ 37 (3d Dist.), citing State v. Williams, 134 Ohio St.3d 521, 

2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19-20.

‘The first step is to consider whether the other acts evidence is relevant 

to making any fact that is of consequence to the determination of the 

action more or less probable than it would be without the evidence.’ 

[Williams at] ¶ 20, citing Evid.R. 401. See also [State v.] Hartman[, 

161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651,] ¶ 24, 28.

State v. Williams, 3d Dist. Allen No. 1-19-70, 2021-Ohio-256, ¶ 16. “The threshold 

question is whether the evidence is relevant.” Smith at ¶ 37. “The rule governing 
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the admissibility of other-acts evidence does not bypass the relevancy 

determination.” Hartman at ¶ 25. 

‘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 

evidence.

Evid.R. 401. “Evidence which is not relevant is not admissible.” Evid.R. 402. 

However, 

the problem with other-acts evidence is rarely that it is irrelevant; 

often, it is too relevant. Hartman at ¶ 25; see 1A Wigmore, Evidence, 

Section 58.2, at 1212 (Tillers Rev. 1983). In the Evid.R. 404(B) 

context, the relevance examination asks whether the proffered 

evidence is relevant to the particular purpose for which it is offered, 

as well as whether it is relevant to an issue that is actually in dispute. 

Hartman at ¶ 26-27.

Smith at ¶ 37. For this reason, “the inquiry is not whether the other-acts evidence is 

relevant to the ultimate determination of guilt. Rather, the court must evaluate 

whether the evidence is relevant to the particular purpose for which it is offered.” 

Hartman at ¶ 26.

‘The next step is to consider whether evidence of the other crimes, 

wrongs, or acts is presented to prove the character of the accused in 

order to show activity in conformity therewith or whether the other 

acts evidence is presented for a legitimate purpose, such as those 

stated in Evid.R. 404(B).’

Williams, 2021-Ohio-256, ¶ 16 (3d Dist.), quoting Williams, 2012-Ohio-5695, ¶ 19-

20. “The key is that the [other acts] evidence must prove something other than the 

defendant’s disposition to commit certain acts.” Smith, supra, at ¶ 36, quoting 
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Hartman, supra, at ¶ 22. These first two steps of the Ohio Supreme Court’s analysis 

present questions of law and are subject to a de novo standard of review on appeal. 

State v. McDaniel, 2021-Ohio-724, 168 N.E.3d 910, ¶ 17 (1st Dist.). Hartman, 

supra, at ¶ 22, citing Leonard, The New Wigmore: Evidence of Other Misconduct 

and Similar Events, Section 4.10 (2d Ed.2019) (“[d]etermining whether the 

evidence is offered for an impermissible purpose does not involve the exercise of 

discretion * * *, an appellate court should scrutinize the [trial court’s] finding under 

a de novo standard”). 

{¶21} However, “[t]he analysis does not end once a proponent has 

established a permissible nonpropensity purpose for the admission of other-acts 

evidence.” Hartman, supra, at ¶ 29.

‘The third step is to consider whether the probative value of the other 

acts evidence is substantially outweighed by the danger of unfair 

prejudice.’ Williams[, 2012-Ohio-5695,] ¶ 20, citing Evid.R. 403. See 

also Hartman at ¶ 29.

Williams, 2021-Ohio-256, at ¶ 16. “As the importance of the factual dispute for 

which the evidence is offered to the resolution of the case increases, the probative 

value of the evidence also increases and the risk of unfair prejudice decreases.” 

Hartman, supra, at ¶ 31.

{¶22} This third step “constitutes a judgment call which we review for abuse 

of discretion.” McDaniel at ¶ 17. See Hartman, supra, at ¶ 30 (holding that 

“[b]alancing the risks and benefits of the evidence necessarily involves an exercise 
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of judgment; thus, the trial court’s determination should be reviewed for an abuse 

of discretion”). Thus, “[i]n the absence of an abuse of discretion and a showing of 

material prejudice, ‘an appellate court will not disturb a trial court’s ruling as to the 

admissibility of evidence.’” State v. Brentlinger, 2017-Ohio-2588, 90 N.E.3d 200, 

¶ 46 (3d Dist.), quoting State v. Rollison, 3d Dist. Marion 9-09-51, 2010-Ohio-2162, 

¶ 32. “An abuse of discretion has been described as an unreasonable, arbitrary or 

unconscionable decision.” State v. Harris, 3d Dist. Hancock No. 5-99-14, 1999 WL 

797159 (Sept. 30, 1999). “[E]vidence of other crimes, wrongs or bad acts carries 

the potential for the most virulent kind of prejudice for the accused.” State v. Porter, 

2d Dist. Montgomery No. 28288, 2019-Ohio-4482, ¶ 12. For this reason, Evid.R. 

404(B) “must be strictly construed against the admissibility of such evidence.” State 

v. Pearson, 114 Ohio App.3d 168, 185, 682 N.E.2d 1086, 1897 (3d Dist. 1996). 

{¶23} On appeal, Timothy identifies eleven instances where he argues

improper other acts testimony was introduced at his trial. These eleven instances 

fall into three main categories. The first five instances relate to his sexual history, 

including his alleged association with prostitutes. (Mar. 1 Tr. 158, 183; Mar. 2 Tr. 

60, 129-130, 131). The next three instances relate to Timothy’s use or possession 

of various pornographic materials. (Mar. 1 Tr. 157, 160, 176, 182). The final three

of these identified instances relate to his alleged drug use. (Feb. 28 Tr. 58; Mar. 1 

Tr. 160; Mar. 2 Tr. 52). For the sake of clarity, we will examine these eleven

instances in three separate analyses based on the preceding categorizations.
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A. Other Acts Evidence: Sexual History

{¶24} Timothy identifies five instances in which he argues the State 

improperly introduced other acts evidence that related to his sexual history. The 

first, second, third, and fourth instances address discussions of Timothy’s possible 

involvement with prostitutes or adult escorts. The fifth instance is testimony about 

a comment that Timothy made to Kimberly. We will address these two groupings 

of challenged testimony in separate analyses.

{¶25} First, Second, Third, and Fourth Instances: The State questioned 

Detective Flanagan on direct examination about whether Timothy had previously 

had “any adult female visitors who were not Kim[.], Brandee [a family friend], [or] 

Nancy [Kimberly’s mother] [.]” (Mar. 1 Tr. 157). Detective Flanagan answered in 

the affirmative and then stated the following:

What we learned during our investigation was that after Mr. Bruce’s 

traffic accident, he still had sexual urges, was considered by family 

members to be very sexually driven and so, he started frequenting a 

website called Back Page. Back Page, at one time, was one of the 

largest pornographic websites in the United States and it gained quite 

a bit of notoriety for its ties to prostitution and sex trafficking. It had 

a personal ad’s page where it would advertise for adult 

companionship, was essentially it was a cover for prostitution. Mr. 

Bruce began frequenting this site and on, at least, two to three 

occasions he did, in fact, order prostitutes to come to his apartment. 

This was verified by family members who refer to these visits as adult 

dates.

Id. at 158. The following exchange then occurred:

[Prosecutor:] So, I want to make sure. So, his own family members 

contended to you that Tim Bruce was getting prostitutes to his home?
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[Detective Flanagan:] Yes.

[Prosecutor:] And did I hear you say they called them adult dates?

[Detective Flanagan:] Adult dates to take care of the urges he was 

having.

Id. at 158.1 He later testified that Back Pages “was shut down in April of 2018 after 

a Federal investigation” and that Timothy’s alleged activities on this site would have 

been illegal. Id. at 183. The following exchange then occurred:

[Defense Counsel:] Okay. So, was that activity of scheduling this 

type of thing, if in fact true, was that illegal?

[Detective Flanagan:] Scheduling those types of visits, yes, that was 

illegal but by the time the investigation started, the site had gone down 

and I had been told by the family that Mr. Bruce no longer accessed 

that site because of the scrutiny it was getting from law enforcement. 

Id. However, according to Detective Flanagan’s testimony, no charges relating to 

these activities were ever brought against Timothy. The charges in the indictment 

in this case certainly did not arise from these specific activities. Further, Detective 

Flanagan’s testimony on this matter also relied entirely upon hearsay statements 

from multiple sources. We also note that, as Timothy points out is his brief, the 

State did not provide advance notice of its intention to use other acts evidence at 

trial in compliance with Evid.R. 404(B).

1

In his brief, Timothy also challenges the testimony identified in this first instance as containing inadmissible 

hearsay in addition to being improper other acts evidence. 
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{¶26} In the second challenged instance, the prosecutor again brought up the 

subject of prostitution when questioning Nancy in the following exchange: 

[Prosecutor:] But you said [in the recorded interview] * * *, quote, I 

remember one night there was a girl there. Never seen before. Maybe 

20 or 30 with Tim and when I asked Kim, she said, Tim’s friend 

brought her from Columbus, end quote.

[Nancy:] Okay.

* * * 

[Prosecutor:] Do you remember that incident?

[Nancy:] Yeah, I do remember—I do remember Kimmy telling me 

that, yeah. 

[Prosecutor:] And so, that girl you saw there that was 20 or 30 years 

old * * * tell me what you remember about that.

[Nancy:] Um, well, I can tell you what she looks like.

[Prosecutor:] Go ahead, please.

[Nancy:] You know, if I’m right, um, kind of—short, okay. Pretty 

short. Blond hair. A nice young lady, you know, and she was there 

to see Tim.

[Prosecutor:] Okay. Short blond hair, you said?

[Nancy:] I just said blond hair.

[Prosecutor:] You said she was short?

[Nancy:] Yeah, she was—she was.

[Prosecutor:] She was short?

[Nancy:] She was not tall. Let’s put it that way.
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* * * 

[Prosecutor:] And she had blond hair?

[Nancy:] I believe so.

[Prosecutor:] Okay, and what was your understanding why she was 

there?

[Nancy:] She was a friend of Tim’s. I mean, to—to—how would I 

call it. Um, to be his mate or something. I mean, they—I don’t know 

if you would call it dating because, you know, she stayed—I believe 

she stayed there a little while, you know. 

[Prosecutor:] She stayed there that evening?

[Nancy:] Yeah, and you know, like I said, you know, I didn’t take it 

much further than that but Tim—you know, Tim liked her. I know 

that. You know, I think he kind of had a crush on her.

(Mar. 2 Tr. 130-132). We note that this exchange began with Nancy’s prior 

statement of what Kimberly had reportedly told her. Further, the prosecution 

requested a description of this alleged prostitute and then asked for these details to 

be repeated. Dwelling on such inarguably irrelevant details only served to 

needlessly prolong a line of questioning into a highly prejudicial topic. 

{¶27} In the third instance, Timothy identifies another exchange that the 

prosecution had with Nancy on the subject of his involvement with adult escorts:

[Prosecutor:] During that same interview with Detective Flanagan * 

* * that I referenced * * *, Detective Flanagan asked you if you had 

any knowledge about prostitutes and Tim Bruce.

[Nancy:] Uh-huh.

[Prosecutor:] Do you remember what you told him?
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[Nancy:] Um, no, I don’t remember but—

[Prosecutor:] Do you remember anything about prostitutes and Tim 

Bruce?

[Nancy:] Um, I know somebody took him there for his birthday one 

time.

[Prosecutor:] Okay. Keep elaborating.

[Nancy:] Huh?

[Prosecutor:] Keep—you said somebody took him there for his 

birthday?

[Nancy:] Yeah, I wasn’t there, so I don’t know if they found one or 

not. I just know that was supposed to be a birthday present.

(Mar. 2 Tr. 129-130). We note that it is not clear from these statements that Nancy 

had the knowledge required to verify whether a prostitute was, in fact, obtained as 

a “birthday present” for Timothy; whether Timothy was aware that a prostitute was 

potentially being procured for him; or any of the other circumstances surrounding 

this rumored plan. Id. at 130. 

{¶28} In the fourth instance, while questioning Kimberly, the prosecution yet 

again brought up the subject of Timothy’s prior involvement with prostitutes:

[Prosecutor:] So, let’s go to—have you ever been involved in 

knowledge that Mr. Bruce has undertaken efforts to have prostitutes 

visit him?

[Kimberly:] Yes. 

[Prosecutor:] Explain your understanding of that.

[Kimberly:] Of him having them?
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[Prosecutor:] Yes, ma’am.

[Kimberly:] He—I don’t understand what you’re asking me. He had 

one—he had one come to the house. Is that what you’re asking? 

[Prosecutor:] Well, you had shared with Detective Flanagan * * * as 

have several others that may or may not testify that Mr. Bruce has 

undertaken the use of prostitutes?

[Kimberly:] Once.

[Prosecutor:] Only once, as far as you know?

[Kimberly:] Yes.

[Prosecutor:] Okay, and describe that one time. Let me have the 

details. Not what actually may have happened but tell me how it was 

set up. 

[Kimberly:] I don’t know if I—I don’t remember how it was—I don’t 

know. I mean, I’m not saying I didn’t know but I’m not remembering 

it at this moment. I think it was Back Page. 

[Prosecutor:] Okay. Give me a time frame of when this occurred?

[Kimberly:] I don’t know that either. I can’t remember. It’s been so 

long. 

[Prosecutor:] Oh, * * * I understand you can’t remember, so let’s 

narrow it down. Narrow down the timeframe when you think this 

Back Page was used by Mr. Bruce to obtain a prostitute?

[Defense Counsel:] Objection. She already says she doesn’t 

remember.

[Kimberly:] I don’t remember. 

[Prosecutor:] I’m asking clarifying questions.

[Kimberly:] I don’t—don’t remember. 
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[Defense Counsel:] Ruling, please?

[Trial Court:] Sustained at this point.

[Prosecutor:] So, you can’t remember. Let me see if we can jog your 

memory. How old was R[.] at the time when this occurred?

[Kimberly:] I don’t remember that either. I don’t even remember if 

it was before or after or, I think, it was before. I’m not sure. 

(Mar. 2 Tr. 58-60). Notably, while defense counsel did raise an objection during 

this exchange, it was not on the basis of this testimony being irrelevant or 

inadmissible other acts evidence. We turn now to analyzing these four challenged 

instances of other acts evidence.2

{¶29} As an initial matter, we note that Detective Flanagan indicated during 

his testimony that these alleged activities with prostitutes were illegal. “The Ohio 

Supreme Court has held that, ‘[a]s a general rule, the introduction of evidence 

tending to show that a defendant has committed another crime wholly independent

of the offense for which he is on trial is prohibited.’” (Emphasis sic.) State v. 

Sutherland, 92 Ohio App.3d 840, 847, 637 N.E.2d 366, 370 (3d Dist. 1994), quoting 

State v. Adams, 53 Ohio St.2d 223, 230, 374 N.E.2d 137, 141 (1978), judgment 

vacated in part on other grounds in Adams v. Ohio, 439 U.S. 811, 99 S.Ct. 69, 58 

2 There is yet another instance of the State bringing up Timothy’s potential association with prostitutes that 

is not challenged on appeal. While cross-examining Brandee, the prosecution stated, “Well what about the 

one time and I can play it for you in the interview, if you’d like, that you shared with Detective Flanagan, 

about when Tim Bruce got a prostitute and the prostitute gave him his money back. Do you remember 

sharing that with Detective Flanagan?” (Mar. 2 Tr. 106-107). In her testimony, Brandee confirmed that she 

had heard about this situation and indicated that the information she had was secondhand. Thus, the State 

brought up the topic of Timothy’s potential association with prostitutes on five occasions while questioning 

four different witnesses. 
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L.Ed.2d 103 (1978). “The introduction of ‘substantial evidence of the 

circumstances and facts involved in the commission of [a prior] crime,’ may warrant 

reversal even when the crime itself is admissible.” State v. Cantrell, 4th Dist. Ross 

No. 96 CA 2255, 1997 WL 414974, *3 (July 27, 1997), quoting Sutherland at 848. 

{¶30} In this case, the jurors heard Detective Flanagan testify that Timothy’s 

alleged involvement with prostitutes as detailed would constitute illegal activities. 

However, these potentially illegal activities were in no way related to the charges 

against him. The State returned to this highly prejudicial line of questioning on 

multiple occasions. Further, beyond its irrelevance to this trial, the testimony on 

this subject was, at times, vague and included secondhand information, raising 

serious questions about the general reliability of a number of these statements. 

{¶31} On appeal, the State points to the fact that the crime of gross sexual 

imposition requires proof that the defendant “ha[d] sexual contact with another.” 

R.C. 2907.05(A). In turn, the definition of “sexual contact” requires that the 

touching was undertaken “for the purpose of sexually arousing or gratifying either 

person.” R.C. 2907.01(B). The State argues that this testimony about Timothy’s 

potential involvement with prostitutes was necessary to establish that he was 

capable of arousal or sexual gratification after his traumatic brain injury. We turn 

to examining this argument under the third step of the test provided in State v. 

Williams, 2012-Ohio-5695, at ¶ 20.
Case No. 14-22-11

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{¶32} The third step in examining the admissibility of other acts evidence “is 

to consider whether the probative value of the other acts evidence is substantially 

outweighed by the danger of unfair prejudice.” See Williams, supra, at ¶ 16. 

Probative value is measured partially by the relative scarcity of 

evidence on the same issue; that is, if the state offers evidence for 

which there is an evidentiary alternative that has substantially similar 

or greater probative value but is less prejudicial, the probative value 

of the state’s evidence must be discounted. [State v. Creech, 150 Ohio 

St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 22], citing Old Chief v. 

United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). 

‘The danger of unfair prejudice is then weighed against this reduced 

probative value.’ Creech at [¶ 22].

State v. Day, 8th Dist. Cuyahoga No. 108435, 2020-Ohio-5259, ¶ 46, quoting State 

v. Alexander, 8th Dist. Cuyahoga No. 106556, 2019-Ohio-451, ¶ 36. Further, 

[s]exually deviant acts * * * carry a severe social stigma, leading to 

an increased risk that other sexually deviant acts by the defendant will 

influence a jury to convict because it assumes the defendant is a bad 

man.

State v. Morris, 2012-Ohio-6151, 985 N.E.2d 274, ¶ 56 (9th Dist.). 

{¶33} Even assuming that the State needed to engage in special efforts to 

establish that Timothy was capable of arousal due to his traumatic brain injury and 

that this was a valid use of other acts evidence,

3

there were ample evidentiary 

3 The State argues that evidence about whether Timothy was capable of sexual arousal was necessary because 

Kimberly testified that “it was physically ‘impossible’ for Appellant [Timothy] to commit the crimes.” 

(Appellee’s Brief, 8, citing Mar. 2 Tr. 19, 24, 32). However, Kimberly’s trial testimony did not assert that 

Timothy’s traumatic brain injury rendered him incapable of sexual arousal or gratification. Rather, her 

testimony suggested that Timothy was physically incapable of dragging R. up the stairs as R. had alleged. 

We also note that the State was the party that introduced evidence at trial of Timothy’s potential impotence. 

(See Mar. 2 Tr. 106-107). Nonetheless, we will consider the State’s argument on its own terms. 
Case No. 14-22-11

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alternatives to this testimony about prostitution that could establish that he was 

capable of arousal or sexual gratification. Further, the evidentiary alternatives not 

only existed but were introduced at trial and explored at length. For example, while

being cross-examined by the State, Kimberly affirmed that Timothy was “very 

sexually driven as a result of his TBI [traumatic brain injury]”; that Timothy “wants 

sexual gratification”; and that he had pornographic movies in his possession for the 

purpose of attaining sexual gratification. (Mar. 2 Tr. 57-58, 69). 

{¶34} The State also introduced an abundance of evidence about Timothy’s 

possession of pornographic materials. Later in our analysis, we will discuss several 

challenges that Timothy raises to the admission of some of the evidence about these

pornographic materials. However, Timothy does not challenge all of this evidence 

as he concedes that much of it relates to the charge of disseminating matter harmful 

to juveniles or aspects of R.’s allegations. For example, he does not challenge the 

evidence that seventy different pornographic items were discovered on his laptop; 

that he had pornographic DVDs in his possession; that he had access to 

pornographic materials on his cable television; and that he had hard core 

pornographic videos. 

{¶35} This unchallenged evidence about these pornographic materials, at 

least bears some relationship to the allegations raised by R. and is relevant to a 

charge against Timothy. Again, even assuming the State had to take special efforts 

in this case to establish that Timothy was capable of arousal, the availability of 
Case No. 14-22-11

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ample evidentiary alternatives to establish this fact renders this unfairly prejudicial 

testimony about prostitutes completely unnecessary and reduces to near 

nonexistence any arguable probative value that this challenged testimony may have 

had. The danger of unfair prejudice far outweighs any arguable probative value

possessed by this evidence. “A strict interpretation” of the allowable uses of other 

acts evidence “does not permit such cumulative or ‘piled on’ evidence.” State v. 

Strong, 119 Ohio App. 31, 37, 196 N.E.2d 801, 806 (5th Dist. 1963). 

{¶36} In summary, this highly prejudicial testimony about Timothy’s 

potential association with prostitutes was not relevant to the charges at trial. 

Williams, 2012-Ohio-5695, at ¶ 20. This testimony does not further any of the 

permissible purposes for the introduction of other acts evidence that are set forth in 

Evid.R. 404(B).4 This testimony is far more unfairly prejudicial than valuable as 

probative evidence of a fact at issue at trial. For these reasons, the evidence related 

to Timothy’s alleged activities with prostitutes should not have been elicited at trial 

but, once introduced, should have prompted an objection and been excluded.

{¶37} Fifth Instance: After questioning Kimberly about Timothy’s prior 

involvement with prostitutes, the prosecutor inquired into an incident in which 

4 During closing arguments, the State returned to the topic of Timothy’s potential involvement with

prostitutes, saying that Kimberly “knows he’s gotten prostitutes and yet [R.] * * * continues to go over there” 

for babysitting. (Emphasis added.) (Mar. 2 Tr. 154). See also Id. at 158. In this statement, the prosecutor 

directly linked the testimony about the adult escorts to evaluation of whether Timothy was a suitable childcare 

provider or was dangerous given the propensities indicative of these illegal or harmful behaviors. Thus, the 

prosecutor’s own use of this information in closing arguments suggests that this testimony was impermissible 

propensity evidence. 
Case No. 14-22-11

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Timothy had made a comment to Kimberly that she later reported in an interview to 

Detective Flanagan. Timothy challenges the resulting testimony as being “[i]n the 

same vein” as the testimony about Timothy’s alleged association with adult escorts. 

(Appellant’s Brief, 11). The challenged exchange reads as follows:

[Prosecutor:] Did you ever tell Detective Flanagan, as you were 

explaining your understanding of Tim Bruce’s sexual desires and 

proclivities that Tim had shared with you that—or you had shared 

with Detective Flanagan, I should say, that Tim told a woman he 

wanted to pin her legs behind her head like a Tyson chicken?

[Kimberly:] Yeah. 

[Prosecutor:] Tell me about that incident.

[Kimberly:] Um, he has said things inappropriately sexually which is 

common with head injuries but saying it and doing it’s two different 

things. 

[Prosecutor:] So, you just said as a nurse—you’re a home healthcare 

nurse. We’re going to get into that here in a minute but you just said 

people with brain injuries, they sometimes say sexual things that are 

in appropriate. Is that accurate?

[Kimberly:] Yes.

* * * 

[Prosecutor:] Let me ask you this. So you know about the porn. You 

know about the prostitutes. You know about, as you said, people with 

traumatic brain injuries are likely to say inappropriate things and yet 

you still sent you granddaughter, R[.], over to stay with him?

[Kimberly:] Yes. 

[Prosecutor:] Did you think that was appropriate?

[Kimberly:] Yes or I wouldn’t have done it. 
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[Prosecutor:] Did you leave [R.] with Mr. Bruce by herself?

[Kimberly:] Yes.

(Emphasis added.) (Mar. 2 Tr. 60-61.)

5

 After this line of inquiry, the prosecution 

tied Timothy’s comment, his possession of pornographic materials, and his possible 

association with prostitutes into questions about Kimberly’s evaluation of 

Timothy’s character. The conclusion of this exchange suggests that this testimony 

was elicited for the impermissible purpose of suggesting that Timothy had a 

propensity to commit the charged crimes because of these prior activities. 

{¶38} Timothy’s comment, as relayed through Kimberly, was derived from 

a situation that was extraneous to the alleged acts that formed the basis of the 

charges in this case. As noted previously, the prosecution already had an abundance 

of evidence that could be relied upon to establish that Timothy was capable of 

arousal or sexual gratification, making this testimony unnecessary for the purpose 

offered by the State on appeal for the admission of this evidence. Finally, this 

comment was tied into an assessment of Timothy’s propensities. 

[The] purpose [of propensity evidence] is to demonstrate that the 

accused has a propensity or proclivity to commit the crime in 

question. See [State v.] Curry[, 43 Ohio St.2d 66,] 68, 330 N.E.2d 720 

[(1975)]. Evid.R. 404(B) categorically bars the use of other-acts 

evidence to show propensity.

5 Timothy also challenges this testimony from Kimberly as containing inadmissible hearsay. However, in 

this appeal, we need only address whether this testimony was permissible as other acts evidence.
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Hartman, supra, at ¶ 21. See State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-

Ohio-5241, ¶ 82-84 (“[T]here is a fundamental difference between a man’s desire 

to engage in sexual activity with * * * [an] adult * * * and his desire to rape [a] * * 

* little girl.”), quoting Morris, supra, at ¶ 28. For these reasons, the testimony about 

this statement should have prompted an objection from defense counsel and should 

have been excluded at trial. 

B. Pornographic Materials

{¶39} In his brief, Timothy acknowledges that R. had alleged that he had 

shown her pornographic materials. Timothy also admits that the testimony about 

his possession of pornography that he does not challenge in this appeal was relevant

to the charge against him for disseminating matter harmful to juveniles. See State 

v. Gawron, 7th Dist. Belmont No. 20 BE 0009, 2021-Ohio-3634, ¶ 45. For these 

reasons, he does not challenge all of the references to his possession of pornography 

that were made at trial. However, he challenges three main portions of Detective 

Flanagan’s trial testimony that were related to his possession or use of pornographic 

materials. We will address the first two portions of Detective Flanagan’s testimony 

together before we address the third challenged portion of his testimony. 

{¶40} First and Second Instances: Before the prosecution elicited the 

challenged portions of testimony, Detective Flanagan was asked whether he 

discovered materials in Timothy’s possession that could corroborate R.’s allegations 

that Timothy had exposed her to pornography. 
Case No. 14-22-11

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As a result of our investigation, we were able to learn that there were 

quite a few pornographic images on that computer. In fact, 70 

different items were tagged for pornography. These included 

websites, videos, adult chat rooms and adult webcams. * * *

The investigation revealed that Mr. Bruce did have cable service at 

that apartment. That cable service allowed him to access premium 

channels and adult channels, so he did have access to pornographic 

movies. He, also, had a DVR device as part of his cable package 

which would allow him to download various movies. 

While I was searching the bedroom, I noticed that the cable box was 

on top of a small stand. When I opened the bottom drawer of the 

stand, I found pornographic videos in the stand. When I looked at the 

contents of the video, I found that the—they were DVD’s. It did 

match what was represented on the DVD cover. These were not 

illegal. They were hard core pornography but they were not illegal 

pornography, so the covers were photographed but the videos were 

not seized. 

(Mar. 1 Tr. 156-157).6 After this statement, the prosecution turned to eliciting the 

first portion of Detective Flanagan’s testimony that Timothy challenges on appeal 

by asking for the titles of these videos. In response, Detective Flanagan stated: 

Um, one was called ‘Sex Star MILF.’ MILF is an acronym part of for 

mom I’d like to f**k. The other three videos were essentially foot 

fetish videos. One was called ‘Welcome to Footville.’ The other one 

was ‘Foot Sex.’ And the third was ‘My Feet-Your Meat, Volume 

Three.’

(Mar. 1 Tr. 157). In the second portion of challenged testimony, the prosecution 

returned to the topic of Timothy’s foot fetish videos. Detective Flanagan testified 

6

Importantly, Timothy does not challenge this portion of Detective Flanagan’s testimony on appeal. Our 

ruling on the admissibility of the foot fetish pornography does not address this quoted testimony. We quote 

this portion of his testimony only because it provides the context for the subsequent testimony about the foot 

fetish pornography that Timothy does challenge on appeal. Appellant’s Brief, 11. 
Case No. 14-22-11

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that he took several pictures of the pornographic films that were discovered in 

Timothy’s possession. The following exchange occurred: 

[Prosecutor:] State’s Exhibit 25, what is depicted?

[Detective Flanagan:] This is Welcome to Footville. This is one of 

the three foot fetish videos that were contained in that drawer. 

[Prosecutor:] Now, Detective, you used the word fetish. Would you 

spell that for purposes of the record?

[Detective Flanagan:] F-E-T-I-S-H.

[Prosecutor:] And you’ve had some training about fetishes?

[Detective Flanagan:] I have.

[Prosecutor:] And what is a fetish?

[Detective Flanagan:] A fetish video is, essentially, a video that 

creates sexual arousal by focusing on body parts other than the genital 

area, by focusing on objects or items or by focusing on some type of 

a sexually based act or theme. Um, with respect to this, when you’re 

talking about body parts, generally, in most of your fetish videos, 

you’re featuring women’s breasts, legs, hair and particularly feet. 

Studies have indicated, roughly, 47 percent of your fetish videos are 

foot fetish videos.

[Prosecutor:] What was that percentage?

[Detective Flanagan:] Approximately 47 percent.

[Prosecutor:] State’s Exhibit 26, what is depicted?

[Detective Flanagan:] This is the second video called Foot Lovers.

[Prosecutor:] And does it have depictions of a female in a state of 

undress?

[Detective Flanagan:] It does.
Case No. 14-22-11

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[Prosecutor:] And you see bare skin?

[Detective Flanagan:] Yes, you can. 

[Prosecutor:] State’s Exhibit Number 27, what is depicted here?

[Detective Flanagan:] This is the third video titled My Feet-Your 

Meat, Volume 3 and, again, this is something where, if you look on 

the cover, you can see that you have exposed male genitals in close 

proximity to women’s feet which is, essentially, what you have in 

these type of fetish films. 

(Mar. 1 Tr. 175-177). Explicit pictures of several of these DVD movie covers were 

introduced into evidence. We note that Detective Flanagan was asked whether R. 

“disclosed any titles of these DVD’s that [he] * * * had found[.]” Id. at 185. In 

response, he answered that he had never interviewed R. and affirmed that she did 

not identify any of “these pornographic materials as the ones she had seen.” Id. at 

186. 

{¶41} The evidence of Timothy’s possession or use of pornography was 

extensive. Detective Flanagan testified about the discovery and nature of Timothy’s 

pornographic materials. Brandee testified that she became aware of Timothy’s 

pornography when she was cleaning his house and was asked why he might have 

had these materials. Among other things, the State questioned Kimberly about 

comments Timothy had made about his pornography; about whether she and 

Timothy were “involved in pornography” during their marriage; about whether 
Case No. 14-22-11

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Timothy had given pornography to Randy when he was a child; and about why 

Timothy had may have had pornographic videos. (Mar 2 Tr. 51).

7, 8

{¶42} Timothy also argues that the testimony about his possession of foot 

fetish pornography “had nothing to do with the allegations” against him. 

(Appellant’s Brief, 11). Testimony about pornography discovered in a defendant’s 

possession has been found to be admissible where these materials depict acts that 

are “similar in nature to the sexual acts committed with” the victim. State v. 

Voorhis, 3d Dist. Logan No. 8-07-23, 2008-Ohio-3224, ¶ 73. See also State v. 

Mincey, 2023-Ohio-472, 208 N.E.3d 1043, ¶ 31 (1st Dist.); State v. Eichorn, 5th 

Dist. Morrow No. 02 CA 953, 2003-Ohio-3415, ¶ 34. 

{¶43} Beyond containing similar acts, the pornographic materials in these 

cited cases also depicted acts between adults and children that were roughly 

paralleled by an adult defendant and a child victim in the criminally charged acts. 

Voorhis at ¶ 73; Eichorn, supra, at ¶ Mincey at ¶ 31. However, in the case presently 

before this Court, the evidence produced at trial does not suggest that this foot fetish 

pornography was similar to the illegal acts that were alleged by R. or depicted any 

7

In this summary, we do not include the testimony regarding R.’s allegations that Timothy had shown her 

pornographic materials. 

8

In this summary, we also do not include the references to Timothy’s pornography that were elicited by 

defense counsel on cross-examination. For example, defense counsel questioned Detective Flanagan about 

whether Timothy’s pornographic materials were “VCR or were they all CD’s,” eliciting this information: 

“[t]he ones I found were the CD-DVD type. From speaking to family, I was told that at one time Mr. Bruce 

had a very extensive pornographic VCR collection but I did not find that in the apartment.” (Mar. 1 Tr. 185). 
Case No. 14-22-11

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sexual acts between adults and children. See State v. Clemons, 94 Ohio App.3d 701, 

710, 641 N.E.2d 778, 784, (12th Dist.). 

{¶44} Further, no evidence at trial suggests that the testimony about this foot 

fetish pornography was introduced to corroborate any of the allegations that R. had 

raised regarding the illicit materials that Timothy showed her. R.’s allegations 

contained very little information about the content of the pornographic videos that 

she viewed with Timothy. See also State v. Ross, 2d Dist. Montgomery No. 22958, 

2010-Ohio-843, ¶ 112. On cross-examination, defense counsel elicited testimony 

that Detective Flanagan never had the opportunity to interview R. to determine if 

any of the pornographic materials that Timothy had showed her were from a movie 

of which she knew the title. He also testified that he did not, during his 

investigation, receive any information from R. that would indicate whether she 

viewed any of these particular movies or DVDs. 

{¶45} Curiously, defense counsel elicited information from Detective 

Flanagan on cross-examination that should have been the basis of an earlier

objection to the initial introduction of this challenged testimony on direct 

examination. Cross-examination is of limited effectiveness in counteracting the 

unfairly prejudicial effects of introducing irrelevant testimony about foot fetish 

pornography at trial and may have only served to belabor the discussion of this topic 

in this case. In the absence of another discernible reason, the introduction of this 
Case No. 14-22-11

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testimony would ultimately serve the purpose of establishing that Timothy was a 

“sex-crazed pervert.” Morris, supra, at ¶ 56.9 

{¶46} Third Instance: The State questioned Detective Flanagan about 

Timothy’s use of cable television to view pornographic materials after the charges 

in this case had been filed. 

[Prosecutor:] You made mention that Mr. Bruce had access to cable. 

[Detective Flanagan:] Yes. 

[Prosecutor:] Um, did you do any investigation related to his access 

to * * * cable? Like, did you do any follow up investigation?

[Detective Flanagan:] Yes. He had access through a cable company 

called Spectrum. They were the ones that confirmed that he was a 

cable subscriber and that he did have access to Premium packages and 

Pay-Per-View movies and that through these packages and Pay-PerViews, he also had access to adult entertainment. 

[Prosecutor:] So, as it related to the whole porn question, you found 

porn in his room. Correct?

[Detective Flanagan:] Correct.

[Prosecutor:] And then you, also, found that he had access to 

downloads from the Internet which could or could not include porn. 

Correct?

[Detective Flanagan:] Correct.

9 During closing arguments, the prosecution returned to the topic of the foot fetish videos, saying “[t]hose 

particular videos, Detective Flanagan, he told me they were fetish videos. He even used the percentage. He 

said 47 percent of fetish videos involve feet and attractions.” (Mar. 2 Tr. 159). Given the irrelevance of this 

information to the facts of this case, the content of the record provides no other plausible reason to return to 

this statistic during closing arguments except to highlight Timothy’s personal peccadillos. 
Case No. 14-22-11

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[Prosecutor:] And it’s my understanding your first testimony was you 

continued to investigate this matter all the way up to and to the present 

when we started trial. Is that accurate?

[Detective Flanagan:] That’s correct.

[Prosecutor:] Does Mr. Bruce still have this access to cable or online 

downloads?

[Detective Flanagan:] Not through Spectrum. He terminated his 

membership in November of 2021 which, in and of itself, is not 

unusual. But then I learned that the previous month in October of 

2021 he ordered $292 worth of Pay-Per-View movies. And then the 

following month his account was terminated. 

[Prosecutor:] And I just want to make sure I have that number 

correctly. How much was it, again?

[Detective Flanagan:] Approximately, $292.

(Emphasis added.) (Mar. 1 Tr. 159-160). See also Id. at 182. 

{¶47} We note that R. alleged that Timothy had shown her pornographic 

materials. While R. did not describe the contents of these videos in detail, she did 

describe how and where Timothy showed her these videos. R. testified, “he had 

them [the videos] saved on his TV, I think. His TV, like, where you can save things 

that are on TV like Roku.” (Mar. 1 Tr. 111). She also stated that Timothy had 

showed her illicit videos on his computer. For this reason, some testimony that 

Timothy was able to access pornographic materials on his television and had 

accessed movies on Pay-Per-View could arguably provide some corroboration to 

R.’s testimony. 
Case No. 14-22-11

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{¶48} However, the testimony regarding the amount of money he spent on 

Pay-Per-View movies after criminal charges were brought against him is irrelevant 

in the absence of any testimony that establishes that these $292.00 of purchases even

included pornographic movies. Based on the testimony at trial, this information 

only establishes that Timothy watched a lot of movies, which is irrelevant to any 

fact at issue in this case. But beyond this issue, the context of this testimony at trial 

invites the jury to speculate about the content of these movies, suggesting that 

Timothy did not simply watch a lot of movies on Pay-Per-View but that he watched 

a lot of pornographic movies on Pay-Per-View when the evidence does not establish 

such a conclusion. 

{¶49} If the prosecution could not establish that these purchases were of 

pornographic movies, then the extent of Timothy’s Pay-Per-View movie watching 

goes beyond the plausibility of R.’s allegations and could only stoke speculation in 

this case.10 Further, if the prosecution could establish that the Pay-Per-View movies 

10 We reach this conclusion in part because of how the prosecutor returned to this cable bill during closing 

arguments, saying Detective Flanagan “found out that Tim Bruce had spent $292 in that last month that he

had the Pay-Per-View. Apparently, he either didn’t want to pay it or wasn’t happy with his views but he 

terminated his contract as an outstanding bill because, you see, that Pay-Per-View was how he could get 

pornography.” (Mar. 2 Tr. 158-159). Initially, the fact that this bill went unpaid is irrelevant to this case. 

Further, the earlier testimony about these Pay-Per-View purchases does not clearly establish that Timothy 

had, in fact, accessed pornographic movies on his television but only established that he could have accessed 

such materials. Again, in the absence of additional testimony that established he did access pornographic 

materials, this information invites the jury to speculate about the nature and content of these Pay-Per-View 

movies. It also established an impermissible character trait of Timothy that the prosecutor freely used due to 

a lack of defense objection. 
Case No. 14-22-11

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included pornographic materials, the admission of such evidence would still be 

subject to the standards of Evid.R. 402 and Evid.R. 403.

C. Other Acts Evidence: Alleged Drug Use

{¶50} On appeal, Timothy challenges three main instances in which the 

prosecution elicited information about Timothy’s prior history of drug use. We will 

consider the first two instances in one analysis before proceeding to a separate 

analysis of the third instance. 

{¶51} First and Second Instances: First, R.’s father and Timothy’s son, 

Randy, testified that he had surrendered custody of R. to his mother, Kimberly 

because he had entered rehabilitation in Florida to address his drug addiction. 

Randy indicated that he had a distant relationship with his father because Timothy

“couldn’t accept” that he “wanted to go get clean.” (Feb. 28 Tr. 53, 54). The 

following exchange between the prosecutor and Randy then occurred:

[Prosecutor:] Randy, you said that you’re very distant from your 

father. You said, in your own words, something about some people 

couldn’t accept that you were going to step away from the journey of 

addiction. Is that what you were referring to?

[Randy:] Yep.

[Prosecutor:] What do you mean by that?

[Randy:] Initially, when I went to treatment, the first couple of 

months I was down there, I would occasionally get phone calls of I 

just wish you could be back up here. I miss hanging out. You know, 

I miss catching a buzz, doing this, doing that, and it just seemed to be 

that, you know, the old life was, you know, not something he could 

let go of. At least on my end of the spectrum. 
Case No. 14-22-11

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[Prosecutor:] You used the word buzz?

[Randy:] Yes.

[Prosecutor:] What does that mean?

[Randy:] We used to smoke pot together.

[Prosecutor:] And your father wanted to continue that kind of 

behavior smoking pot. Is there another name for pot? The technical 

term?

[Randy:] Marijuana.

[Timothy Bruce:] Medical.

[Prosecutor:] And your father wanted to do that with you and you 

didn’t want to do it anymore?

[Randy:] Correct.

(Feb. 28 Tr. 57-58). Second, the State brought up the issue of Timothy’s prior drug 

use again, questioning Kimberly about whether she was aware that Randy and 

Timothy had used drugs together in the past:

[Prosecutor:] Do you know that your—Tim Bruce used drugs with 

your son, Randy?

[Kimberly:] When he was a kid?

[Prosecutor:] I didn’t give a specification yet. I’m just asking, did 

you know if he used drugs? Tim Bruce used drugs with your son, 

Randy?

[Kimberly:] I know they have as an adult smoked pot.
Case No. 14-22-11

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(Mar. 2 Tr. 52). On appeal, the State argues that this testimony “elaborated upon 

the challenging grooming family dynamic” that Timothy “exacted upon the victim.” 

(Appellee’s Brief, 7). However, the testimony elicited does not indicate that 

Timothy “groomed” Randy for drug use in any way or even introduced Randy to 

drug use. Rather, this testimony only indicates that Randy, “as an adult,” had used 

drugs alongside his father. (Mar. 2 Tr. 52). Beyond the fact that this testimony does 

not establish that Timothy groomed Randy for drug use, the act of introducing an 

adult to drug use is not similar to grooming a child for sexual abuse. 

{¶52} The State’s argument essentially admits that this evidence was 

introduced in an attempt to establish that Timothy had groomed Randy for drug 

abuse and that this prior behavior suggests that he may have groomed R. for sexual 

abuse. In other words, evidence of these other acts were introduced to suggest that 

Timothy had the character of a predator and “acted in accordance with th[is] 

character” in this case. Evid.R. 404(B)(1). This is precisely the kind of evidence 

that is prohibited by Evid.R. 404(B)(1). The State also does not allege that this 

evidence was introduced for any of the permissible reasons to use other acts 

evidence that are listed in Evid.R. 404(B)(2). For this reason, we conclude that this

other acts testimony was not admissible evidence under Evid.R. 404(B).

{¶53} The State also argues that defense counsel broached the topic of 

Randy’s relationship with Timothy on cross-examination, opening the door for the 

prosecution to engage in this line of inquiry. 
Case No. 14-22-11

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Under the opened-the-door doctrine, “[t]he introduction of otherwise 

inadmissible evidence * * * ‘is permitted * * * “to the extent necessary 

to remove any unfair prejudice which might otherwise have ensued 

from the original evidence.””’ State v. Bronner, 9th Dist. Summit No. 

20753, 2002-Ohio-4248, ¶ 73, quoting United States v. Winston, 447 

F.2d 1236, 1240 (D.C. Cir. 1971), quoting California Ins. Co. v. Allen, 

235 F.2d 178, 180 (5th Cir. 1956).

State v. Cotton, 12th Dist. Butler No. CA2022-05-055, 2023-Ohio-46, ¶ 15. 

[While] ‘[t]he introduction of evidence of other bad acts can be 

prejudicial and is generally prohibited by Evid.R. 404(B) * * *, courts 

will not find prejudicial error when the defense ‘opens the door’ to 

such evidence. 

(Citations omitted.) State v. Brooks, 9th Dist. Medina No. 07 CA 0111-M, 2008-

Ohio-3723, ¶ 53, quoting State v. Moore, 8th Dist. Cuyahoga No. 80416, 2003-

Ohio-1154, ¶ 23.

{¶54} However, “the doctrine [of opening the door] is ‘dangerously prone to 

overuse.’” Bronner, supra, at ¶ 72, quoting Winston, supra, at 1240, quoting United 

States v. McClain, 440 F.2d 241, 244 (C.A. D.C. 1971). 

[J]ust because a door creaks open, it does not allow a parade to march 

through. “It has been observed that ‘opening the door is one thing. 

But what comes through the door is another. Everything cannot come 

through the door.’” State v. Bronner, 9th Dist. Summit No. 20753, 

2002-Ohio-4248, 2002 WL 1906507, ¶ 72, quoting United States v. 

Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971). “‘[T]he doctrine is 

to prevent prejudice and is not to be subverted into a rule for injection

of prejudice.’” (Emphasis sic.) Id. at ¶ 73, quoting Winston at 1240.

State v. McDaniel, 2021-Ohio-724, 168 N.E.3d 910, ¶ 13 (1st Dist.).

{¶55} In this case, the State questioned Randy about his own history of drug 

use on direct examination. On cross-examination, the Defense questioned Randy 
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about his relationship with Timothy presumably to address issues of potential bias

against Timothy. Randy’s answer did not portray Timothy in a favorable light. 

Given that the State had already questioned Randy about his prior drug use on direct 

examination, we note that the prejudice from Randy’s answer on cross-examination 

primarily accrued to Timothy rather than Randy. 

{¶56} Further, even if the Defense opened the door for the prosecution to 

discuss the relationship between Randy and Timothy, the exchange between the 

State and Randy elicited information that went beyond what was necessary to 

understand their “family dynamic * * *.” (Appellee’s Brief, 6). See also Bronner, 

supra, at 72-76. This line of inquiry did not open the door for an exchange about 

Timothy’s history of drug use. The State’s questions about Timothy’s history of 

drug use were not necessary to address the testimony elicited from Randy during 

cross-examination and sought unfairly prejudicial information that was ultimately 

irrelevant to any fact of consequence in this case. 

{¶57} Third Instance: During the testimony of Detective Flanagan, the 

prosecution again returned to the topic of Timothy’s prior drug use:

[Prosecutor:] You heard Randy[’s] * * * testimony that his father 

encouraged him to, quote, get buzzed, end quote. Did you hear that 

testimony?

[Detective Flanagan:] Yes.

[Prosecutor:] Did you find any evidence of drugs or what have you 

in Mr. Bruce’s home * * *?
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[Detective Flanagan:] There was one small item. It appeared to be 

drug paraphernalia. I believe it was related to marijuana use. We did 

not find any type of illegal narcotics or illegal prescription meds. 

(Mar. 1 Tr. 160). In this case, Timothy was not indicted on any charge that was 

related to illegal drug use. Further, R.’s allegations did not contain any mention of 

Timothy using any illegal drugs. Thus, “nothing connects the drug-related evidence 

with the charged offenses” in this case. State v. Grate, 164 Ohio St.3d 9, 2020-

Ohio-5584, 172 N.E.3d 8, ¶ 133. 

{¶58} The State asserts that Detective Flanagan’s testimony about the drug 

paraphernalia was “a demonstration of [the] investigative thoroughness” of law 

enforcement in this case. (Appellee’s Brief, 7). However, the State does not cite to 

any caselaw that suggests establishing “investigative thoroughness” is a justification 

for the introduction of such testimony. Id. Under the facts of this case, the discovery 

of drug paraphernalia was in no way necessary to explain the actions of law 

enforcement as they conducted their investigation. This prejudicial evidence was 

irrelevant to any fact of consequence that was at issue at trial and should have 

prompted an objection by defense counsel. See State v. Tench, 156 Ohio St.3d 85, 

2018-Ohio-5205, 123 N.E.3d 955, ¶ 173-174. “Evidence which is not relevant is 

not admissible.” Evid.R. 402.

{¶59} In summary, the parties presented evidence at trial on three days. 

Randy testified on February 28; Detective Flanagan testified on March 1; and 

Kimberly testified on March 2. Thus, the prosecution returned to the issue of 
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Timothy’s prior drug use on each day of his trial. Randy’s testimony did not open 

the door for the State to repeatedly bring up Timothy’s prior history of drug use on 

three separate days during the examination of three different witnesses. Testimony 

about Timothy’s prior drug history is ultimately irrelevant to the disposition of this 

case and was unfairly prejudicial. 

II. Deficient Performance Analysis: Opinion Testimony

{¶60} “In our system of justice it is the fact finder, not the so-called expert 

or lay witnesses, who bears the burden of assessing the credibility and veracity of 

witnesses.” State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988). For 

this reason, “[o]pinion testimony regarding another witness’s credibility ‘infringe[s] 

upon the role of the fact finder, who is charged with making determinations of 

veracity and credibility.’” State v. Smith, 2017-Ohio-9283, 102 N.E.3d 1111, ¶ 46 

(10th Dist.), quoting Eastham at 312. “Generally, the opinion of a witness as to 

whether another witness is being truthful is inadmissible.” State v. Essa, 194 Ohio 

App.3d 208, 2011-Ohio-2513, 955 N.E.2d 429, ¶ 90 (8th Dist.). 

{¶61} However, Evid.R. 608(A) does permit some opinion evidence 

regarding the credibility of a witness under specified circumstances and reads as 

follows: 

The credibility of a witness may be attacked or supported by evidence 

in the form of opinion or reputation, but subject to these limitations: 

(1) the evidence may refer only to character for truthfulness or 

untruthfulness, and (2) evidence of truthful character is admissible 
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only after the character of the witness for truthfulness has been 

attacked by opinion or reputation evidence or otherwise.

Evid.R. 608(A). “While Evid.R. 608(A) permits testimony regarding a witness’s 

general character or reputation for truthfulness, the rule prohibits testimony 

regarding a witness’s truthfulness on a particular occasion.” State v. Pawlak, 8th 

Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 41.

{¶62} A distinction exists between lay and expert witnesses. State v. McKee, 

91 Ohio St.3d 292, 2001-Ohio-41, 744 N.E.2d 737, fn. 2 (2001). “[L]ay testimony 

‘results from a process of reasoning familiar in everyday life,’ while expert 

testimony ‘results from a process of reasoning which can be mastered only by 

specialists in the field.’” Id., quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn. 

1992), superseded on other grounds by statute. 

{¶63} Evid.R. 701 states that the testimony of a lay witness “is limited to 

those opinions or inferences which are (1) rationally based on the perception of the 

witness and (2) helpful to a clear understanding of the witness’ testimony or the 

determination of a fact in issue.” Evid.R. 701. 

Lay opinions, inferences, impressions, or conclusions are admissible 

if they are those that a rational person would form on the basis of the 

observed facts and if they assist the jury in understanding the 

testimony or delineating a fact in issue.

State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, ¶ 25. Evid.R. 

701 does not prohibit a lay witness from “testify[ing] about another’s emotional 

state when the testimony is based upon personal observations.” State v. Kovac, 150 
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Ohio App.3d 676, 2002-Ohio-6784, 782 N.E.2d 1185, ¶ 56 (2d Dist.). But in 

accordance with the general rule, “lay witnesses are prohibited from testifying as to 

another witness’s veracity.” Pawlak, supra, at ¶ 113, citing Kovac at ¶ 32.

{¶64} “The state elicits such opinion evidence at its peril, particularly where 

the evidence essentially involves a credibility contest and significant independent 

evidence of the offenses * * * is lacking.” State v. Kennedy, 11th Dist. Ashtabula 

No. 2021-A-0030, 2022-Ohio-3369, ¶ 20, quoting State v. Miller, 2d Dist. 

Montgomery No. 18102, 2001 WL 62793, *7 (June 26, 2001). However, while

“having a witness testify that the victim is telling the truth is an error, it is harmless

error if the victim testifies and is subject to cross-examination.” State v. Hupp, 3d 

Dist. Allen No. 1-08-21, 2009-Ohio-1912, ¶ 20.11, 12 This is because,

[w]hen the victim testifies, the jury is able to hear the victim’s 

answers, witness her demeanor and judge her credibility completely 

independent of the other’s testimony concerning the veracity of the 

victim.

11 In State v. Boston, the Ohio Supreme Court found reversible error where an expert witness gave 

impermissible opinion testimony regarding the veracity of allegations of sexual abuse that were raised by a 

child victim. State v. Boston, 46 Ohio St.3d 108, 129, 545 N.E.2d 1220 (1989), overruled, in part, on other 

grounds by State v. Dever, 64 Ohio St.3d 401, 1992-Ohio-41, 596 N.E.2d 436 (1992). In Hupp, this Court 

considered Boston in the context of impermissible opinion testimony that was given by a lay witness. Hupp, 

supra, at ¶ 18-20. We concluded that this impermissible opinion testimony constituted harmless error 

because the child victim testified at trial and was cross-examined. Id. at ¶ 20. However, in the case presently 

before us, Timothy essentially raises a cumulative error argument to establish prejudice for his ineffective 

assistance of counsel claim. Appellant’s Brief, 26. Under the cumulative error doctrine, multiple harmless 

errors can provide a basis for a reversal. State v. Line, 3d Dist. Allen No. 1-19-07, 2019-Ohio-4221, ¶ 16. 

12 We note that courts have held, in cases with varying fact patterns, that the admission of impermissible 

opinion testimony “is more likely to be prejudicial if the case was essentially a ‘credibility contest’ between 

the victim and the defendant without independent evidence of the alleged crimes.” Kovac, supra, at ¶ 40, 

quoting State v. Palmer, 9th Dist. Medina No. 2323-M, 1995 WL 48442 (Feb. 8, 1995). See also State v. 

Johnson, 5th Dist. Stark No. 2016CA00069, 2016-Ohio-8261, ¶ 54; State v. Richcreek, 196 Ohio App.3d 

505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 108 (6th Dist.); State v. Schewirey, 7th Dist. Mahoning No. 05 MA 

155, 2006-Ohio-7054, ¶ 52; Pawlak, supra, at ¶ 116; State v. Roush, 10th Dist. Franklin No. 12AP-201, 2013-

Ohio-3162, ¶ 62. 
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Id. at ¶ 20. See also State v. Leigh, 6th Dist. Ottawa No. OT-16-028, 2017-Ohio7105, ¶ 24 (The error of admitting impermissible opinion testimony “is mitigated if 

the victim testifies and is subject to cross-examination.”). Though instances of 

impermissible opinion testimony may constitute harmless errors, “the law provides 

that when multiple harmless errors are considered together, their combined effect 

may violate a defendant’s right to a fair trial.” Rollison, supra, at ¶ 50. We turn 

now to examining seven challenged instances of what Timothy argues was improper 

opinion testimony.13

{¶65} First and Second Instances: Molly Vance (“Vance”) works for Logan 

County Children Services. She conducted an initial interview with R. before 

sending her to Nationwide Hospital for further investigation. During her testimony, 

the following exchange occurred:

[Prosecutor:] And when you observed it [R.’s interview], what did 

you observe?

[Vance:] * * * [S]he [R.] was pretty consistent with what she was 

saying. It seemed very credible. Um, she stuck to her story. Could 

give details. Um, so, when I left there I believed—I believed what 

she said.

13 In his brief, Timothy identifies eight instances of improper opinion testimony. However, one of these 

instances is challenged as an inadmissible hearsay statement and as improper opinion testimony. We will 

address seven of these instances in this section and will address the eighth instance when we examine the 

statements challenged as inadmissible hearsay. 
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(Mar. 1 Tr. 130). In the second challenged instance of opinion testimony, Vance 

testified that she “and the CAC [Child Advocacy Center] staff felt she [R.] was very 

credible in her description.” Id. at 133. 

Social workers are permitted to testify to their disposition in an 

alleged sexual abuse case. See State v. Smelcer (1993), 89 Ohio 

App.3d 115[, 623 N.E.2d 1219]. Social workers may also comment 

on the consistency of an alleged victim’s statements. See In re D.D., 

Cuyahoga App. No. 89042, 2008-Ohio-222 * * *; In re W.P., 

Cuyahoga App. No. 84114, 2004-Ohio-6627 * * *; State v. Demiduk

(June 24, 1998), Columbiana App. No. 96-CO-16 [1998 WL 355864 

(7th Dist.)* * *. However, social workers may not testify as to the 

truthfulness or credibility of the alleged victim. Id.

(Emphasis sic). State v. Winterich, 8th Dist. Cuyahoga No. 89581, 2008-Ohio1813, ¶ 21. See also State v. Cashin, 10th Dist. Franklin No. 22424, 2009-Ohio6419, ¶ 20 (“[S]tatements directly supporting the veracity of a child witness are 

prohibited * * *.”). 

{¶66} In the first identified statement from Vance, she began by giving

permissible testimony about her observations regarding the consistency and detailed 

nature of R.’s allegations. State v. McGlowan, 6th Dist. Lucas No. L-07-1163, 

2009-Ohio-2160, ¶ 43 (A police detective’s lay witness testimony regarding delayed 

disclosure was permissible where the detective never gave an opinion as to whether 

sexual abuse occurred in that case.”); State v. L.E.F., 10th Dist. Franklin No. 13AP1042, 2014-Ohio-4585, ¶ 27 (“Witnesses involved in the examination of a sexual 

abuse victim may comment on the consistency of the victim’s statements.”).
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{¶67} However, Vance concluded this statement by sharing her personal 

beliefs about the veracity of R.’s allegations. Cook, supra, at ¶ 41; Winterich at ¶ 

23 (finding that a social worker’s “opinion that the victim ‘seemed believable’ was 

improper”). Vance’s personal belief in R.’s allegations does not assist the trier of 

fact in reaching a conclusion on the issue of whether sexual abuse had occurred but 

intrudes on the function of the jury as trier of fact. Lawson, supra, at ¶ 17, 22. This 

opinion testimony went to the central issue that the jury was to decide in this case 

and was impermissible. 

{¶68} In the second identified statement, Vance gave the opinions of other 

staff members regarding the credibility of R.’s allegations. This testimony 

presumably reflected hearsay statements that had been made by other individuals to 

Vance. This testimony gave the opinions of unidentified declarants on the ultimate 

issue that was to be decided by the jury in this case. Further, the jurors, who had 

previously heard testimony from two CAC treatment providers, would likely have 

perceived the staff of the Child Advocacy Center as authorities on the matter of 

child sexual abuse allegations. For these reasons, this testimony was impermissible. 

{¶69} Third Instance: The State called the nurse at R.’s school, Courtney 

Thompson (“Thompson”), to testify as a witness. Thompson stated that she had 

been involved when R. initially reported the allegations at school. During direct 

examination, the following exchange occurred:

[Prosecutor:] Did you detect that [R.] * * * was faking?
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[Thompson:] No. 

[Prosecutor:] Did you detect at all that [R.] * * * was just making all 

this up?

[Thompson:] I don’t believe that a third grader would be able to make 

all of that up unless that truly happened to her. That’s not something 

I typically see.

(Mar. 1 Tr. 65-66). At trial, Thompson testified as a lay witness but gave an opinion 

about what was typical for third grade victims who raise allegations of sexual abuse. 

[C]ourts have permitted lay witnesses to express their opinions in 

areas in which it ordinarily would be expected that an expert must be 

qualified under Evid.R. 702. * * * Although these cases are of a 

technical nature in that they allow lay opinion testimony on a subject 

outside the realm of common knowledge, they still fall within the 

ambit of the rule’s requirement that a lay witness’s opinion be 

rationally based on firsthand observations and helpful in determining 

a fact in issue. These cases are not based on specialized knowledge 

within the scope of Evid.R. 702, but rather are based upon a 

layperson’s personal knowledge and experience.

State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 107 (2d Dist.), quoting McKee, 

supra, at 296-297. Thus, 

courts have permitted witnesses with firsthand knowledge to offer lay 

opinion testimony where they have a reasonable basis—grounded 

either in experience or specialized knowledge—for arriving at the 

opinion expressed.

McKee at 296, quoting Asplundh Mfg. Div., a Div. of Asplundh Tree Expert Co. v. 

Benton Harbor Engineering, 57 F.3d 1190, 1198 (3d Cir. 1995). 

{¶70} On direct examination, Thompson did not give any testimony that 

establishes she had the knowledge or experience that was necessary to give an 
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opinion regarding what was typical for a third grader when disclosing allegations of 

sexual abuse. State v. Sanchez, 11th Dist. Ashtabula No. 2018-A-0097, 2020-Ohio5576, ¶ 83. In fact, prior to these challenged statements, Thompson’s testimony 

indicated that R.’s allegations came during the “first week of [Thompson’s] * * * 

first year” of being a school nurse. (Mar. 1 Tr. 52). Thompson also indicated that 

this was her first-time reporting allegations of sexual abuse as a mandated reporter. 

{¶71} Further, on cross-examination, Thompson confirmed that she had not 

previously “been involved in a situation like this before where a child made 

allegations[.]” (Mar. 1 Tr. 66).

14

 Since Thompson had not previously dealt with a 

situation in which a child had raised sexual abuse allegations, she was clearly not 

qualified to give an opinion about what was typical in such cases. See also Jones, 

supra, at ¶ 108 (A police detective was permitted to testify about what was typical 

for child victims in sexual abuse cases where he had extensive experience in similar 

cases).

{¶72} Beyond this initial issue, courts have also found testimony about the 

rarity of child victims raising false allegations of sexual abuse to be problematic 

even where the witness has extensive experience in such cases. “Whether the 

victims in previous cases * * * were truthful and accurate is not relevant to the truth 

14 While these questions on cross-examination demonstrate that Timothy’s defense counsel did, at least, take 

some steps to address this problematic testimony on some level, the substance of these facts had essentially 

been introduced already on direct examination. 
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or accuracy of * * * the incident at issue in this case.” State v. Coffman, 130 Ohio 

App.3d 467, 476, 720 N.E.2d 545, 548-549 (3d Dist. 1998) (finding a police 

officer’s testimony that, in his extensive experience in child sexual abuse cases, he 

had “never had anyone even near [the seven-year-old victim’s] age where we knew 

for a fact they were lying” to be improper); State v. Whitt, 68 Ohio App.3d 752, 758, 

589 N.E.2d 492, 495 (8th Dist. 1991); State v. Davis, 64 Ohio App.3d 334, 345, 581 

N.E.2d 604, 611 (12th Dist. 1989). Thus, testimony of this nature from a lay witness 

who does not have extensive experience with these types of cases was problematic. 

Accordingly, we conclude that the portion of Thompson’s testimony that Timothy 

challenges on appeal was impermissible. 

{¶73} Fourth Instance: On direct examination, Randy was asked by the 

prosecutor what his goal was in filing a police report after R. had told him her 

allegations. In response, Randy said:

Honestly, I—I need to say this. Um, I believed her wholeheartedly. I 

did because, like, this doesn’t just come out of thin air in a child’s 

mind but at the same time this was a very double edged sword for me. 

Um, I didn’t know how to make the word like, you know, you say it 

and you believe it but at the same time, it doesn’t make sense. Um, 

but the only thing that I could really think about in this moment was I 

know I have to do everything right in order to accomplish the goal of 

getting her back to me which is, ultimately, the safest place she can 

be.

(Feb. 28 Tr. 40-41). Randy then emphasized that this was important, “especially if 

all of this is a hundred percent true * * *.” Id. at 41. This statement gave an opinion 

about “credibility of [an]other witness * * *.” Pawlak, supra, at ¶ 109. While there 
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is no indication that the prosecution sought to elicit this answer, these statements 

still constituted impermissible opinion testimony and were not objected to by 

defense counsel. 

{¶74} Fifth Instance: On redirect examination, the prosecution also asked 

about what Randy “detect[ed] as a dad” when he was watching the recorded 

interview of R. describing the allegations in detail. (Feb. 28 Tr. 57). Randy replied 

by saying, “My child has been harmed. My child is a victim. My child has been 

through stuff that no child should have to go through.” Id. The State’s question 

asked Randy what he perceived as he viewed a recorded interview of R. This is a 

matter within the knowledge of a lay witness. 

{¶75} Portions of Randy’s answer did suggest an opinion on the ultimate 

issue in this case. See State v. Marrero, 10th Dist. Franklin No. 10AP-344, 2011-

Ohio-1390, ¶ 43, 46-48, citing State v. Clemons, 3d Dist. Allen No. 1-86-36, 1988 

WL 37129, *6. In this case, whether R. had been harmed by sexual abuse was 

disputed. State v. Aboytes, 11th Dist. Lake No. 2020-L-001, 2020-Ohio-6806, ¶ 181 

(“[T]he term ‘victim’ is used appropriately during trial when there is no doubt that 

a crime was committed and simply the identity of the perpetrators is in issue.”); 

State v. Madden, 2017-Ohio-8894, 100 N.E.3d 1203, ¶ 34 (10th Dist.) (considering 

whether the fact that the complainant had suffered a harm was in dispute). 

{¶76} However, courts have uniformly found that such testimony does not 

rise to the level of plain error. State v. Donald, 7th Dist. Mahoning No. 08 MA 154, 
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2009-Ohio-4638, ¶ 69; State v. Jackson, 2023-Ohio-455, 208 N.E.3d 1010, ¶ 26 (8th 

Dist.), citing State v. Butts, 8th Dist. Cuyahoga No. 108381, 2020-Ohio-1498, ¶ 41; 

State v. Wright, 9th Dist. Lorain No. 02CA008179, 2003-Ohio-3511, ¶ 3-5; State v. 

Morock, 10th Dist. Franklin No. 14AP-559, 2015-Ohio-3152, ¶ 25. We note that 

Randy’s statement was the understandable response of a father. Given this context, 

we conclude that, even if this comment was impermissible, consideration of this 

statement need not enter into the final analysis of prejudice. 

{¶77} Sixth Instance: On cross-examination, Randy was questioned by the 

Defense about R.’s honesty. On redirect examination, the prosecution referenced 

this line of questioning in the following exchange: 

[Prosecutor:] Randy, Mr. Valentine [Timothy’s Defense Counsel] 

asked you if you knew about your daughter’s habit of lying. Do you 

recall that?

[Randy:] I do.

[Prosecutor:] And does she have the habit of lying?

[Randy:] No.

[Prosecutor:] And you went on to start to explain your answer and so, 

I want to give you a chance to explain your answer now. When you 

said that she’s like any other kid, what do you mean?

[Randy:] She—if she sees herself getting extra attention from 

explaining something, she will exaggerate. She will push it out, drag 

it out further, you know, really, really accentuate details to, you know, 

push that connection or that going on.

[Prosecutor:] Okay.
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[Randy:] So, I don’t think necessarily it’s a habit of lying as it is, you 

know, seeking attention. 

(Feb. 28 Tr. 54-55). On appeal, Timothy challenges this line of questioning as 

Randy “reaffirm[ing] his [prior] opinion testimony.” (Appellant’s Brief, 12). 

However, this testimony came after the Defense had a long series of questions that 

delved into R.’s character for truthfulness on cross-examination. 

{¶78} Each of the questions in this challenged portion of testimony 

addressed a specific line of inquiry pursued by the Defense on cross-examination. 

Further, unlike the first challenged instance above, Randy gave his opinion as to 

R.’s general character for truthfulness rather than his opinion as to whether her 

specific allegations against Timothy were true. See State v. Cook, 3d Dist. Union 

No. 14-19-26, 2020-Ohio-3411, ¶ 41. For these reasons, Randy’s testimony about 

R.’s general character for truthfulness was permissible on redirect examination 

under Evid.R. 608(A). See State v. Skidmore, 7th Dist. Mahoning No. 08 MA 165, 

2010-Ohio-2846, ¶ 25. See also State v. Denson, 1st Dist. Hamilton No. C-220208, 

2023-Ohio-847, ¶ 23-26. 

{¶79} Seventh Instance: On cross-examination, Nancy was involved in the 

following exchange with the prosecutor:

[Prosecutor:] And it [a written report] says, PGGM [Paternal GreatGrandmother] reported that she believes, quote, something happened, 

end quote. Do you see that?

[Nancy:] Yes, I do. 
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[Prosecutor:] And so, the lady that wrote this report, she says that that 

is the exact language that you used, quote, something happened, end 

quote?

[Nancy:] Well, I believe I said—I don’t think I said that I believe that 

something happened, you know.

[Prosecutor:] Uh-huh.

[Nancy:] I said—I said, if something maybe happened—I think I said 

the same thing to Detective Flanagan. I don’t—you know. You know 

what, at that time, I might have said this. I’m not going to lie. I might 

have said that because it was right in the beginning of everything and 

everything was—R[.] had said so many things and I felt so bad for 

her. I didn’t think that she would be lying about it, you know. 

(Mar. 2 Tr. 127-128). On appeal, Timothy challenges these statements as containing 

impermissible opinion testimony.

{¶80} However, on direct examination, defense counsel asked if Nancy “had 

any specific conversations with [R.] * * * regarding allegations she’s made against 

Mr. Bruce[.]” (Mar. 2 Tr. 120). In response, Nancy said, “I told Detective Flanagan, 

you know, I believe what she had told me and I am sorry but I swear I don’t 

remember all the things that she told me.” Id. Given that Nancy had already made 

this statement during direct examination, we cannot conclude that defense counsel 

performed deficiently by failing to object to a discussion of her prior testimony on 

cross-examination. See also State v. Sierra, 8th Dist. Cuyahoga Nos. 42827, 42829, 

and 42951, 1981 WL 5025, *9 (July 30, 1981); State v. Amankwah, 8th Dist. 

Cuyahoga No. 89937, 2008-Ohio-2191, ¶ 44. 
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{¶81} In summary, our analysis has concluded that four of these seven 

analyzed instances contained impermissible opinion testimony. As noted 

previously, this Court has held that where a child victim testifies at trial and is crossexamined, as in this case, such opinion testimony is generally considered to be

harmless error. See Hupp, supra, at ¶ 18-19, 21 (finding harmless error where the 

father of the children-victims testified “that he believed their allegations * * *”). 

However, such opinion testimony is error nonetheless. While these four instances 

do not individually provide grounds for reversal, these multiple instances of 

harmless error are pertinent to a cumulative error analysis. See State v. DeMarco, 

31 Ohio St.3d 191, 196-197, 509 N.E.2d 1256, 1261 (1997). For this reason, we 

will consider these four instances of improper opinion testimony as we determine 

whether Timothy has established prejudice in the final analysis. 

III. Deficient Performance Analysis: Hearsay Statements

{¶82} “‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). The rules of evidence define a “statement” as “(1) an 

oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the 

person as an assertion.” Evid.R. 801(A). “Hearsay is typically inadmissible unless 

the statement falls into a hearsay exception.” Berry, supra, at ¶ 100, citing Evid.R. 

802. “Under Evid.R. 103(A) and Crim.R. 52(A), we disregard as harmless the 

admission of improper hearsay evidence unless a substantial right of the party is 
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affected.” Brentlinger, supra, at ¶ 48, quoting State v. Missler, 3d Dist. Hardin No. 

6-14-06, 2015-Ohio-1076, ¶ 60. 

{¶83} Further, “[a] defense counsel’s failure to object is not ineffective 

assistance of counsel if the evidence is admissible.” State v. Brown, 2020-Ohio3614, 154 N.E.3d 1129, ¶ 79 (3d Dist.), quoting State v. Jackson, 8th Dist. Cuyahoga 

No. 86105, 2006-Ohio-174, ¶ 47. However, “where resolution of factual issues 

turns solely upon the credibility of witnesses, failure to object to hearsay testimony 

which bolsters the credibility of witnesses constitutes ineffective assistance of 

counsel.” State v. Nichols, 116 Ohio App.3d 759, 765, 689 N.E.2d 98, 102 (10th 

Dist. 1996). 

{¶84} On appeal, Timothy challenges eleven instances where he alleges 

inadmissible hearsay evidence was introduced at trial without objection. The first 

instance addresses a comment made by an expert who did not testify at trial. The 

next three instances address out-of-court statements made by Kimberly and Nancy 

to staff at Nationwide Hospital. These are followed by four instances that relate to 

R.’s disclosure of her allegations to Randy, her school principal, and a school nurse. 

The final three instances address the admission of three recorded police interviews 

of Kimberly and Brandee that were unredacted. 

{¶85} First Instance: During cross-examination, the prosecutor engaged in 

the following exchange with Kimberly:
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[Prosecutor:] Taking a look at State’s Exhibit 29 [a video recording 

of an interview of Kimberly from September 25, 2018], you were 

talking about somebody named Miss Benton that used to counsel your 

son, Randy?

[Kimberly:] Yes, and had family counseling with her.

[Prosecutor:] And Miss Benton was some sort of a sex therapy 

counselor. Is that accurate?

[Kimberly:] Sex offender counselor.

[Prosecutor:] And you had talked to Miss Benton?

[Kimberly:] Yes.

[Prosecutor:] And that’s what you were sharing with Detective 

Flanagan?

[Kimberly:] Yes.

[Prosecutor:] And you had shared with Detective Flanagan that that 

sex therapist shared with you that, quote, very rarely are kids lying 

about this that they make it up, end quote. Did you hear that statement 

from your own mouth?

[Kimberly:] I did. 

(Mar. 2 Tr. 44-45).

15

 This statement of Miss Benton as related through Kimberly at 

trial “was clearly hearsay and should not have been permitted.” State v. Porter, 9th

Dist. Summit No. 11091, 1983 WL 4222 (Sept. 14, 1983) (examining a case in 

which a witness repeated at trial what an expert had previously told him). 

15 Timothy also challenged this statement as improper opinion testimony and as hearsay. However, we need 

only address its admissibility in our analysis of hearsay statements. 
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{¶86} In the absence of significant physical evidence, the State’s case 

ultimately relies on the jury’s assessment of the allegations against Timothy. This

challenged comment goes directly to the credibility of the allegations raised by a 

child. Further, this hearsay statement was purportedly made by a counselor who the 

jury would likely have perceived as an expert on the matter discussed. Accordingly, 

this testimony carries the potential for being unfairly prejudicial in addition to being 

inadmissible and should have been challenged by an objection.

{¶87} Second Instance: Alicia Daniels (“Daniels”) is a forensic interviewer 

and mental health advocate at the Center for Family Safety and Healing at 

Nationwide Children’s Hospital. As a part of her involvement in this case, Daniels 

coauthored a report in which she documented the interviews conducted in this case 

at Nationwide Hospital. At trial, the State had Daniels read various portions of the 

report into the record and comment on what was contained in various portions of 

the report. The portions of the report that she read contained statements that Nancy 

and Kimberly had made to the staff at Nationwide Hospital on the day of R.’s 

interview. On appeal, Timothy asserts that the out-of-court statements from 

Kimberly and Nancy were inadmissible hearsay. 

{¶88} Some portions of this challenged evidence contain statements in which 

Nancy and Kimberly expressed their doubts regarding R.’s allegations and even 

suggested that R. may be raising these allegations because she wants to live with 

her father in Florida. The decision not to object to this class of statements may have 
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been a matter of trial strategy as this testimony was consistent with the Defense’s 

argument that R. had fabricated her allegations. However, the following portion of 

this challenged testimony is of a different quality:

[Prosecutor:] And the PGGM [Paternal Great Grandmother, Nancy], 

what did she respond to you because—would you have written down 

whatever they respond? I mean, that’s why you make the summary. 

Correct?

[Daniels:] Correct. It’s a summary of how my conversation went 

with the family and what we discussed.

[Prosecutor:] And so, the great-grandma [Nancy] * * * [w]hat did she 

respond?

[Daniels:] She [Nancy] stated that she believes something happened 

but voiced concern that the patient could be exaggerating. 

[Prosecutor:] And then keep going.

[Daniels:] And PGM [Paternal Grandmother, Kimberly] * * * 

reported feeling unsure of what to believe.

[Prosecutor:] Now, in this particular situation, you used the word—

you used quotes around something happened * * * didn’t you? So, 

whose words would those have been?

[Daniels:] That would have been paternal great-grandmother’s 

[Nancy’s] words.

[Prosecutor:] And so, she’s saying that she believes something 

happened but then she also adds?

[Daniels:] That she’s concerned it’s exaggerated. 

(Feb. 28 Tr. 123-124). Both Nancy and Kimberly would later be called to testify as 

witnesses for the Defense. 
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{¶89} In these hearsay statements, Nancy and Kimberly conveyed their 

opinions as to whether they believed R.’s allegations. Since in-court declarations 

about whether a witness believes the allegations are not permissible, out-of-court 

hearsay declarations about whether a witness believes the allegations are not 

permissible. Nonetheless, we note that these statements described the doubts that

R.’s family had about her allegations. For this reason, defense counsel may have 

refrained from raising an objection as a matter of trial strategy. 

{¶90} Third Instance: At the conclusion of Daniels’s testimony on direct 

examination, the following exchange occurred:

[Prosecutor:] Now, in this particular scenario, you’ve interviewed 

about, I think it was 800 plus people. You’ve interacted with their 

caregivers. * * * [B]ut you said this particular interaction stuck out 

for you?

[Daniels:] It did.

[Prosecutor:] Why is that?

[Daniels:] At the very end of the appointment when we were doing 

wrap up and I was giving the paperwork, so the Discharge Summary, 

um, I had a pretty direct conversation with the family about reminding 

them that R[.] was the victim and not Mr. Bruce. 

(Emphasis added.) (Feb. 28 Tr. 129). In his brief, Timothy singles out the italicized 

portion of this exchange as a particular focus of his argument. 

{¶91} However, Timothy lumps this statement in with his challenge to the 

hearsay statements in Daniels’s report. This is understandable as this “direct 

conversation” came immediately after the interview in which Kimberly and Nancy 
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made the statements that are documented in Daniels’s report. (Feb. 28 Tr. 129). 

But as Daniels’s own statement, this comment stands apart from the hearsay 

statements from Nancy and Kimberly that were written in the report. We need not 

consider whether this statement was inadmissible hearsay as Daniels’s comment 

that “R[.] was the victim and not Mr. Bruce” is independently problematic as it 

offers an opinion on the ultimate issue to be decided at trial. (Feb. 28 Tr. 129). 

{¶92} When describing what “stuck out” to her, Daniels did not discuss the 

content of R.’s interview. (Feb. 28 Tr. 129). She did not point to any indicators of 

reliability that were present in R.’s allegations and that could assist the trier of fact 

in reaching a conclusion as to whether sexual abuse had occurred. See State v. 

O.E.P.-T., 2023-Ohio-2035, --- N.E.3d ---, ¶ 179 (10th Dist.) (noting that a 

description of a child-victim’s disclosure as “clear, coherent, and consistent” 

assisted the jury in evaluating the allegations instead of simply giving an opinion of 

the truthfulness of the allegations). See Winterich, supra, at ¶ 21. 

{¶93} Rather, what “stuck out” to her was that, after the CAC interview, she 

believed R.’s allegations while R.’s family had doubts. Id. In the identified

statement, she was telling the family members to believe that R. was the victim 

rather than Timothy.

16

 At trial, this statement was not coupled with any information 

that could assist the jurors in ascertaining whether sexual assault occurred in this 

16 We are not examining whether this conversation was appropriate for Daniels to have with R.’s family at 

the CAC. We are only examining the appropriateness of eliciting this information at trial. 
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case. Further, the question posed to Daniels appears to have sought this answer. 

For these reasons, we place this statement alongside the other instances of 

impermissible opinion testimony that were reviewed previously. 

{¶94} Fourth Instance: At trial, the State called Jami Casto (“Casto”), who 

is the Clinical Program Coordinator at the Center for Family Safety and Healing at 

Nationwide Children’s Hospital, as a witness. During direct examination of Casto, 

the following exchange occurred:

[Prosecutor:] Then did you notice a reaction from grandmother?

[Casto:] She said that she had a hard time believing that.

[Prosecutor:] So, I want to make sure who the she is?

[Casto:] She being grandma.

[Prosecutor:] Grandma had a hard time—

[Casto:] Grandma and I talked to grandma and great-grandma 

together. 

[Prosecutor:] Okay. And you heard grandma say?

[Casto:] That they had a hard time believing that.

[Prosecutor:] And they had a hard time believing what is the that?

[Casto:] That everything that she said about the sexual abuse. And 

then, prior to the interview, just so you know, prior to that they had 

talked about not thinking that it could have happened because of some 

concerns they had about his health problems. 

(Feb. 28 Tr. 105). Casto’s statements indicated that Nancy and Kimberly were 

skeptical of R.’s allegations from the outset. This testimony was not unfavorable to 
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the Defense. Thus, even if this testimony contained inadmissible hearsay, the 

unopposed introduction of favorable testimony cannot contribute to a finding of 

prejudice in the final analysis.

{¶95} Fifth Instance: The prosecution asked Randy about a conversation 

that he had with R. as follows:

[Prosecutor:] Did your daughter talk to you about pornography?

[Randy:] Yes.

[Prosecutor:] What—what did you learn and then determine from 

what your daughter said?

[Randy:] From what she had told me, I gathered that he had—he had 

shown her these videos, had essentially tried to educate her was the 

understanding that I got. But, again, she was lacking the words and I 

think the comfortability to tell me, you know, in fuller detail.

(Feb. 28 Tr. 44). In this testimony, Randy relayed what he came to understand from 

statements that R. made to him during her initial disclosure of the alleged abuse. On 

appeal, Timothy argues that these statements contained inadmissible hearsay and 

should have prompted an objection from defense counsel.

{¶96} However, defense counsel had previously objected on grounds of 

hearsay while Randy was testifying as to what R. had relayed to him during her 

initial disclosure of the allegations. The trial court had overruled this prior 

objection. The portion of Randy’s testimony that Timothy challenges as 

inadmissible hearsay on appeal also came from R.’s initial disclosure to her father. 

Since the trial court had already allowed the statements from this conversation to be 
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admitted, defense counsel would have no reason to believe that the result of a 

subsequent objection would have been any different. 

{¶97} “An attorney is not required to perform futile acts. It may well have 

been part of counsel’s strategy not to badger the court with respect to rulings on 

which the court had made itself clear * * *.” State v. Mooney, 9th Dist. Lorain No. 

94CA005860, 1995 WL 453379, *3 (July 26, 1995). Further, the failure to do a 

futile act cannot be prejudicial. State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, 

¶ 69 (8th Dist.). Further, on cross-examination, defense counsel questioned Randy 

about the fact that R. never alleged she had been penetrated during her initial 

disclosure to him. (Feb. 28 Tr. 46). Thus, defense counsel may also have decided 

not to object as a matter of trial strategy in order to emphasize the fact that R. did 

not allege penetration until her later interview at Nationwide Hospital. 

{¶98} Sixth, Seventh, and Eighth Instances: The next three challenged 

instances of alleged hearsay relate to statements that R. made in the process of

disclosing her allegations at school. At trial, the school nurse, Courtney Thompson 

(“Thompson”), testified that R. came into the office at school; eventually asked for 

a piece of paper; wrote down the allegations (“R. Letter”); and then spoke about 

what she had written. After this interaction, Thompson wrote a letter (“Thompson 

Letter”) that documented what had transpired in her office and what had been 

discussed in her conversation with R. Portions of the Thompson Letter were later 
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read at trial. The sixth instance of alleged hearsay is the admission of the Thompson 

Letter as this writing relates numerous statements made by R. 

{¶99} After speaking with Thompson, R. went to speak with the school 

principal, Thomas Holdren (“Holdren”). (Mar. 1 Tr. 36, 38). The R. Letter was in 

his possession during this discussion. As he spoke with R., Holdren wrote down a 

series of notes (“Holdren’s Notes”) in the margin of the R. Letter. Holdren’s Notes

included a number of statements made by R. during their discussion. During his 

testimony at trial, Holdren read several of these notes and provided an explanation 

of their meaning when asked. The seventh instance of alleged hearsay is the 

admission of R.’s statements as relayed through Holdren’s Notes. During Holdren’s 

testimony, the State also published the R. Letter to the jury. The eighth instance of 

alleged hearsay is the admission of the R. Letter, containing R.’s written allegations.

{¶100} Elements of the Thompson Letter, Holdren’s Notes, and the R. Letter 

provided defense counsel with various grounds to raise objections. However, for 

several reasons, we conclude that the decision on whether to object to this evidence 

falls within the realm of debatable trial tactics and strategy. At the outset, we note 

that the trial court had already overruled a hearsay objection on the grounds that R. 

would later testify. Thus, defense counsel could arguably have refrained from 

lodging an objection as the trial court’s prior ruling on a hearsay objection indicated 

that R.’s statements likely would have been admitted. Further, given that R. was to 

testify, these statements were either going to be cumulative to R.’s trial testimony 
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or a source of inconsistent statements for the jury to consider if R.’s trial testimony 

was to vary from the statements she had made to Thompson and Holdren. 

Accordingly, we cannot conclude that these are instances of deficient performance. 

{¶101} Ninth, Tenth, and Eleventh Instances: While cross-examining 

Kimberly, the State played several small portions of recorded interviews that she 

had sat for on September 28, 2018 and November 30, 2018 with Detective Flanagan. 

Subsequently, while cross-examining Brandee, the State played a small portion of a 

recorded interview between her and Detective Flanagan that occurred on September 

20, 2018. At the conclusion of Timothy’s trial, unredacted copies of these entire 

interviews were then admitted into evidence as Exhibits 29, 30, and 31. Prior to 

admission, the trial court asked defense counsel if he had any objection to these 

three exhibits. Defense counsel expressly stated that there was no objection. 

{¶102} On appeal, Timothy argues that defense counsel should have 

objected to the admission of these unredacted interview recordings into evidence as 

exhibits on hearsay grounds. In these interviews, Detective Flanagan gave several 

protracted evaluations of the content and credibility of R.’s allegations. Kimberly 

and Brandee also recounted a number of Timothy’s other acts that were unrelated 

to the charges against him. Further, these interviews also contained a number of 

descriptions of the other acts evidence that was admitted at trial, challenged on 

appeal, and found to be unfairly prejudicial in our prior analysis. The renderings of 
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these prior acts were far more unfairly prejudicial in these recorded interviews than 

the renderings of these same incidents that were given at trial. 

{¶103} We have already concluded that the unfairly prejudicial testimony 

given at trial regarding Timothy’s prior acts should not have been introduced 

unchallenged. For the same reasons, we conclude that these unredacted interviews, 

which contain more prejudicial versions of the same information in addition to other 

prejudicial opinion evidence and other prior bad acts evidence, also should not have 

been admitted into evidence as exhibits unchallenged. See also State v. Fuchs, 2d 

Dist. Montgomery No. 27873, 2019-Ohio-4294, ¶ 22. 

IV. Deficient Performance Analysis: Closing Arguments

{¶104} In examining claims of prosecutorial misconduct, “the standard of 

review ‘is [1] whether remarks are improper and, if so, [2] whether they 

prejudicially affected substantial rights of the accused.’” State v. Davis, 3d Dist. 

Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 27, quoting State v. Lott, 51 Ohio St.3d 

160, 165, 555 N.E.2d 293 (1990). 

“[T]he touchstone of due process analysis in cases of alleged 

prosecutorial misconduct is the fairness of the trial, not the culpability 

of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 220, 102 S.Ct. 

940, 71 L.Ed.2d 78 (1982). “A prosecutor is entitled * * * to ‘wide 

latitude in summation as to what the evidence has shown and what 

reasonable inferences may be drawn therefrom.’” [State v.] 

McKelton, [148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508,] * 

* * ¶ 274[, quoting] State v. Stephens, 24 Ohio St.2d 76, 82, 263 

N.E.2d 773 (1970). However, ‘[i]t is improper for an attorney to 

express his personal belief or opinion as to the credibility of a witness 

or as to the guilt of the accused.’ [State v.] Smith[, 14 Ohio St.3d 13,] 
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14, 470 N.E.2d 883 [(1984)] citing State v. Thayer, 124 Ohio St. 1, 

176 N.E. 656 (1931). ‘A prosecutor may state his opinion if it is based 

on the evidence presented at trial.’ State v. Klein, 3d Dist. Union No. 

14-12-09, 2013-Ohio-2387, * * * ¶ 60, quoting State v. Watson, 61 

Ohio St.3d 1, 10, 572 N.E.2d 97 (1991) abrogated on other grounds 

by State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997).

State v. Thompson, 3d Dist. Henry 2017-Ohio-792, 85 N.E.3d 1108, ¶ 21. “[N]ot 

every intemperate remark by counsel can be a basis for reversal.” State v. Liles, 3d 

Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 31, quoting State v. Porter, 4th Dist. 

Meigs No. 10CA15, 2012-Ohio-1526, ¶ 20. “Misconduct of a prosecutor at trial 

will not be considered grounds for reversal unless the conduct deprives the 

defendant of a fair trial.” State v. Johnson, 2014-Ohio-4750, 22 N.E.3d 249, ¶ 88

(3d Dist.).

{¶105} In his brief, Timothy identifies the following remark that was made 

during closing arguments as the basis of his prosecutorial misconduct claim:

I want you to pay particular close attention. If you remember Mr. 

Bruce, when R[.] was testifying, didn’t make near as many sounds or 

noises or grunts or words. He knows what he’s doing. Trying to look 

at R[.]. Trying to keep in contact with. His mumbling’s greatly 

decreased, you see, because he’s got to make note of everything she 

says.

(Mar. 2 Tr. 151). Timothy argues that the prosecutor, by referencing his demeanor 

and appearance at trial, violated his Fifth Amendment right against selfincrimination by improperly drawing attention to his decision not to testify. 

{¶106} However, the Ohio Supreme Court has held that “[a] defendant’s face 

and body are physical evidence.” State v. Brown, 38 Ohio St.3d 305, 317, 528 
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N.E.2d 523, 538 (1988). For this reason, “[a] prosecutor may comment on the 

defendant’s physical appearance, demeanor and body language during trial.” State 

v. Williams, 1st Dist. Hamilton No. C-180291, 2020-Ohio-1228, ¶ 37, citing Brown

at 317; State v. Green, 90 Ohio St.3d 352, 373, 2000-Ohio-182, 738 N.E.2d 1208, 

1232 (2000); State v. Bey, 85 Ohio St.3d 487, 496-497, 1997-Ohio-283, 709 N.E.2d 

484 (1999). See also State v. Hill, 75 Ohio St.3d 195, 203, 661 N.E.2d 1068, 1078

(1996). 

{¶107} Further, prosecutorial comments about the demeanor of the accused 

at trial are not, as a general matter, properly understood as implicating a defendant’s 

Fifth Amendment right not to testify. State v. Weaver, 178 Ohio App.3d 504, 2008-

Ohio-5022, 898 N.E.2d 1023, ¶ 143 (6th Dist.); State v. Ladson, 8th Dist. Cuyahoga 

No. 105914, 2018-Ohio-1299, ¶ 36. See also State v. A.W.M., 10th Dist. Franklin 

No. 18AP-523, 2020-Ohio-4707, ¶ 61-62. But see State v. McDonald, 6th Dist. 

Lucas No. L-08-1032, 2010-Ohio-574, ¶ 27. 

{¶108} Having examined the content of the challenged statement, we cannot 

conclude that the prosecutor intended this remark to be a comment on Timothy’s 

decision not to testify or that the jurors would have understood this remark to be a 

comment on Timothy’s decision not to testify. State v. Shivers, 8th Dist. Cuyahoga 

No. 106601, 2018-Ohio-5174, ¶ 62, quoting State v. Webb, 70 Ohio St.3d 325, 328, 

1994-Ohio-425, 638 N.E.2d 1023 (1994). Thus, there is no indication that the State 

impermissibly commented on Timothy’s decision not to testify as he alleged in his 
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brief. (See Appellant’s Brief, 23). See also State v. Erker, 2019-Ohio-3185, 141 

N.E.3d 543, ¶ 121 (8th Dist.).

{¶109} Timothy also argues that this comment contained irrelevant evidence 

regarding his demeanor during trial. Again, the Ohio Supreme Court has held that 

a defendant’s demeanor and behavior during trial constitute evidence on which a 

prosecutor may comment. Brown, supra, at 317; Green, supra, at 373; Hill, supra, 

at 203. While the content of this challenged comment is somewhat inscrutable, the 

prosecution appears to be addressing several statements that defense counsel made 

in opening arguments about how Timothy’s traumatic brain injury affects his

responses to his surroundings. See Williams, supra, at ¶ 37-38. Defense counsel 

had previously stated the following:

I’ve talked to you a little bit during jury voir dire about my client, Tim 

Bruce, and his issues with the traumatic brain injury. I’m not going 

to go through all that again but just want to point out to you one more 

time it causes him sometimes, when he gets upset about things, to act 

out. Not against R[.] but while we’re in trial here. He’s having some 

difficulty while we were sitting listening to opening statements 

because it so offended him the things that [the prosecutor] * * * was 

saying. All these things that have been made up about him. And as a 

result, he’s unable to control himself.

(Feb. 28 Tr. 27). Thus, the statements by the prosecution appear to be a response to 

these previous comments from the Defense. Given this context, we cannot conclude 

that the prosecutor’s remarks during closing arguments were prejudicial or harmful 

to the Defense even if we were to assume that the comments were improper. See 

Brown, supra, at 317.
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Prejudice Analysis

{¶110} Our analysis of the assigned errors concluded that this trial contained 

multiple errors that were, in several instances, significant. To establish prejudice, 

Timothy essentially argues that the cumulative effect of the multiple errors he 

identifies on appeal was to deny him a fair trial and to undermine confidence in the 

result of these proceedings. He argues that, in the absence of these errors, a 

reasonable probability exists that the jurors may not have returned verdicts of guilty 

on the charges against him. 

{¶111} “The Ohio Supreme Court previously recognized that the doctrine of 

cumulative error may be applied to a claim of ineffective assistance of counsel.” 

State v. Hopings, 6th Dist. Lucas No. L-20-1075, 2022-Ohio-1532, ¶ 44. 

The cumulative-error doctrine provides that ‘a conviction will be 

reversed when the cumulative effect of errors in a trial deprives a 

defendant of a fair trial even though each of the numerous instances 

of trial-court error does not individually constitute cause for reversal.’

State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 169, quoting

State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223.

A claim of cumulative error based on the ineffective assistance of 

counsel would require a determination that while no single act by trial 

counsel met the standard set forth in Strickland, * * * [supra at 687-

688], the cumulative effect of counsel’s conduct satisfied the 

Strickland standard.

State v. Howard, 2020-Ohio-3819, 156 N.E.3d 433, ¶ 85 (2d Dist.). 
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{¶112} To establish prejudice, “the defendant must demonstrate * * * that 

there exists a reasonable probability that, but for counsel’s error[s], the result of the 

proceeding would have been different.” State v. Davis, 159 Ohio St.3d 31, 2020-

Ohio-309, 146 N.E.3d 560, ¶ 14. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id., quoting Strickland, supra, 

at 694. This requires more than a conclusion that “the defendant was simply harmed 

by counsel’s alleged deficient performance.” Id. at ¶ 15. See also State v. Bradley, 

42 Ohio St.3d 136, 538 N.E.2d 373, fn. 1 (1989). 

{¶113} Beyond making a general assertion that the identified errors were 

prejudicial, Timothy raises several arguments to establish that the challenged errors 

were particularly damaging to his defense under the facts of this case. He begins by 

pointing to the testimony from Detective Flanagan and Hornor regarding the 

absence of physical evidence to corroborate the allegations of rape against him. On 

cross-examination, Detective Flanagan testified as follows:

[Defense Counsel:] Now, isn’t it true that, as testified to earlier, 

there’s no physical evidence that any of these things actually 

occurred?

[Detective Flanagan:] That’s correct.

[Defense Counsel:] So, your investigation and then your ensuing 

speculation as to what occurred are based on—on the actual verbal 

allegations by R[.]?

[Detective Flanagan:] That’s accurate. 

(Mar. 1 Tr. 180). The nurse who had examined R. testified as follows:
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[Defense Counsel:] * * * And the physical exam, itself, from your 

examination of R[.], there is no indication in fact that she was 

penetrated. Correct?

[Hornor:] Her exam was normal. Correct.

[Defense Counsel:] Okay. And there’s no, from a physical 

examination viewpoint, there’s no indication, no evidence that in fact 

she was even sexually molested. Correct?

[Horner:] Correct. 

(Mar. 1 Tr. 23).

17

 In the absence of physical evidence, Timothy argues that the 

State’s case depended on the credibility of the allegations against him, increasing 

the harmful impact of the errors that he challenges on appeal. Thus, he asserts that 

the improper opinion testimony unfairly bolstered the State’s case against him while 

the improper evidence of other potentially illegal activities and bad acts unfairly 

undermined his defense.

{¶114} We note that the jury instructions given by the trial court directed the 

jury to consider the other acts evidence only for the delineated, permissible 

purposes. The jury instructions also admonished the jurors that they were “the sole 

judges of the facts” and “the credibility of the witnesses.” (Mar. 2 Tr. 175, 176). 

However, while “[t]he giving of a curative instruction will often obviate the 

necessity of a mistrial * * *, there are some instances in which the prejudice is so 

17 We note that Hornor testified at trial that R. “gave extensive history of sexual abuse” and that her (Hornor’s) 

“diagnosis of sexual abuse was made based upon her [R.’s] * * * extensive history * * *.” (Mar. 1 Tr. 23). 

See State v. Schewirey, 7th Dist. Mahoning No. 05 MA 155, 2006-Ohio-7054, ¶ 53. 
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great that it is impossible ‘to unring the bell.’” Tumblin v. State, 29 So.3d 1093, 

1102 (Fla. 2010), quoting Graham v. State, 479 So.2d 824, 825-26 (Fla. App. 1985). 

It is our opinion that this case presents one such instance. 

{¶115} Having considered each of these alleged instances of deficient 

performance, we conclude that the result of defense counsel’s numerous instances 

of inaction was the introduction of inadmissible and highly prejudicial testimony. 

The cumulative effect of these errors was to deny Timothy his right to a fair trial. 

For this reason, we conclude that Timothy has carried the burden of establishing 

that he was denied his right to the effective assistance of counsel as guaranteed by 

the Sixth Amendment to the United States Constitution. His sole assignment of 

error is sustained. Accordingly, we vacate all of Timothy’s convictions in this case 

and remand this cause of action for a new trial. See State v. Barr, 158 Ohio App.3d 

86, 2004-Ohio-3900, 814 N.E.2d 79, ¶ 3 (7th Dist.). 

Conclusion

{¶116} Having found error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Union County Court of Common Pleas is 

reversed. We remand this cause of action for further proceedings consistent with 

this opinion. 

Judgment Reversed

And Cause Remanded

MILLER, P.J., concurs.
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ZIMMERMAN, J., concurring separately.

{¶117} I write separately in support of our decision to reverse the conviction 

of the Defendant. Plain and simple, the State went too far in its use of highly 

prejudicial and irrelevant evidence without objection by the Defense. One can only 

imagine how the jury considered such evidence in its deliberation on charges that 

had no connection.

/hls