[Cite as State v. Keen , 2023

- Ohio

- 4761.]

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. W. Scott Gwin, P.J.

Plaintiff

- Appellee : Hon. Patricia A. Delaney, J.

: Hon. Andrew J. King, J.

- vs

- :

: Case No. CT2023

- 0009

:

NATHEN KEEN :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Muskingum County

Court of Common Pleas, case no.

CR2022

- 0469

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: December 2 7

, 2023

For Plaintiff

- Appellee: For Defendant

- Appellant:

RONALD L. WELCH CHRIS BRIGDON

MUSKINGUM CO. PROSECUTOR 8138 Somerset Rd.

JOHN CONNOR DEVER Thornville, OH 43076

27 North Fifth St., P.O. Box 189

Zanesville, OH 43702[Cite as State v. Keen , 2023

- Ohio

- 4761.]

Delaney, J.

{¶1} Appellant Nathen Keen appeals from the February 2, 2023 Entry of

conviction and sentence of the Muskingum County Court of Common Pleas. Appellee is

the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on October 19, 2021, when Jane Doe disclosed sexual

abuse by appellant, her stepfather.

{¶3} Mary Doe (“Mother”) was in a relationship with appellant for nine years and

married to him for seven. They have two children together, both boys, and Mother has a

daughter from a previous relationship, Jane Doe. The family lived together in Columbus

until October 2020, when they moved to a residence in Muskingum County. Mother noted

Jane Doe was age 12 when the family moved because Jane’s 13th birthday was a month

after they moved in. In October 2021, therefore, Jane Doe was age 13.

Jane Doe discloses to Mother

{¶4} At that time, Mother worked in Columbus and left the house each day at

6:00 a.m. She would wake Jane Doe before she left, and Jane would get ready to catch

the school bus at 6:50 a.m. The two youngest children would get up at 7:00 a.m., after

Jane left for school. Appellant was a subcontractor who made his own schedule so he

remained in the house in the mornings to help the children get up for school after Mother

left.

{¶5} Jane Doe tends to oversleep and Mother frequently calls her on her way to

work to ensure Jane is awake. On October 19, 2021, Mother called Jane several times

and no one answered. Eventually, appellant answered Jane’s phone and said she was[Cite as State v. Keen , 2023

- Ohio

- 4761.]

in another room. Mother was not overly concerned because appellant and Jane “didn’t

get along” for the last two years and minor disagreements in the mornings were not

unusual. Appellant and Jane’s relationship had gotten noticeably worse in the last six

months.

{¶6} On that date, appellant handed Jane the phone and she went into another

room to speak to her mother. She said she and appellant got in a fight and she asked

Mother to return home. Upon returning to the residence, appellant was outside with the

younger children and Jane Doe was inside. Jane got into Mother’s car and they left as

though Mother was taking her to school, but Jane broke down crying before they were

out of the neighborhood. Jane said someone had been touching her sexually; Mother

asked who and Jane responded that she didn’t want Mother to hate her or appellant. She

then stated appellant had been molesting her.

{¶7} Mother testified that in retrospect, she was concerned about appellant’s

behavior toward Jane for a while, although she never had a reason to call police. Jane

went out of her way to avoid being alone with appellant, to the extent that she asked if

she could wait for her bus at a neighbor’s house. Appellant and Mother were estranged

and he rarely slept in her bed; he was usually on the couch. One morning Mother looked

for him and found him asleep in Jane’s bed. When she asked what he was doing, he

didn’t answer. Mother found it strange that appellant set alarms on his phone to go off at

3:00 and 4:00 a.m., but didn’t think about it because appellant usually slept on the couch.

{¶8} The family’s Neighbor testified that she sometimes gave Mother’s children

rides to school. One day in October 2021, before the disclosure on the 19th, Jane

appeared at Neighbor’s house unannounced and asked for a ride to school. Neighbor[Cite as State v. Keen , 2023

- Ohio

- 4761.]

consented; appellant then texted Neighbor to say Jane might show up and ask for a ride.

Neighbor noticed appellant pull into her driveway in his truck to talk to Jane and wondered

why he wasn’t giving Jane a ride. It was very unusual for appellant to text Neighbor.

Neighbor was uncomfortable and suspicious of the situation, especially when appellant

texted her again later to ask what she and Jane spoke about. Neighbor told Jane she

was always available if Jane needed someone to talk to, but Jane didn’t disclose anything

that gave Neighbor a reason for concern. Neighbor expressed her concerns to Mother.

Investigation, forensic interview, and DNA results

{¶9} In the meantime on October 19, 2021, Mother and Jane continued to school

and spoke to Jane’s guidance counselor, who called the school resource officer. Deputy

Tanner Morton spoke briefly to Mother to understand the allegations and was directed by

a detective to collect evidence from the residence. While at the house, Morton

encountered appellant and told him to pack belongings to stay elsewhere. Morton asked

appellant if he knew of any reason why police would be at the house that day, and

appellant responded that he didn’t know why Morton was there but Jane Doe was upset

about “the way [appellant] woke her up that morning.” Morton asked appellant if he

“touched [Jane Doe] inappropriately,” and appellant responded that he “didn’t understand

what that meant.” T. 329

- 330.

{¶10} Morton advised Mother to take Jane Doe directly to Nationwide Children’s

Hospital in Columbus and she did so. Jane met with Michelle Kaiser, a forensic

interviewer and licensed professional counselor, at the child assessment center (CAC).

Kaiser testified she does not work for law enforcement; she interviews children for the

purpose of medical diagnosis and treatment, prior to the child’s SANE exam in the case[Cite as State v. Keen , 2023

- Ohio

- 4761.]

of suspected sexual abuse. Kaiser is usually the only professional to interview a child

victim of sexual abuse so that the child does not have to repeat the details of the abuse.

The interview is made available to medical providers for physical and mental health

treatment. A written summary of the interview is also sent to the appropriate local

children’s services agency. Further, Kaiser testified that Nationwide Children’s Hospital

policy is that a copy of the notes of her interview is made available to the relevant law

enforcement agency.

{¶11} Kaiser met with Jane Doe on October 19, 2021, the date of the incident in

question. Appellee’s exhibit one is the videotape of the forensic interview, which was

played at trial over objection as discussed infra. In response to Kaiser’s questions, Jane

said she has never seen anyone hurt Mother or appellant, but she described behaviors

of appellant including punching holes in walls and throwing chairs; one time she saw

appellant hit Mother with a pillow.

{¶12} Jane told Kaiser she woke up that morning around 4:45 a.m. to appellant in

her bed. He would not leave so she went to her brother’s room; she woke up around 6:00

a.m. and appellant was in the room. He was touching her inappropriately and cornered

her; specifically, he was touching her breasts, trying to take her underwear off, and forcing

her legs apart. Jane said appellant touched her breasts, butt, and vagina with his hands.

He tried to put his penis in her vagina and she pushed him off; she bit his shoulder to try

to get him to release her but he said, “Do it again, I like it rough.” Appellant grabbed her

and tried to put his finger in her vagina. She ran to the bathroom but appellant picked her

up and carried her back into the bedroom. He wouldn’t leave the room when she was

trying to change. As she was doing her makeup with her bedroom door shut and locked,[Cite as State v. Keen , 2023

- Ohio

- 4761.]

appellant tried to open the door with a butter knife. She said appellant kicked the door

repeatedly and kicked it off its hinges. She found her phone and called her mom, who

came and picked her up from the house.

{¶13} Jane said these incidents with appellant have been happening for years and

appellant threatened to break up with Mother if Jane told anyone. Appellant would touch

her with his penis, “hump” her, and attempt to put his penis in her vagina. He would move

up and down on her body while she kept her eyes closed. This usually happened while

Mother and the younger children were asleep and after Mother went to work because

Mother leaves early from the new house.

{¶14} Jane also described three other incidents of touching before the family

moved to the Muskingum County house and one incident at the Muskingum house in

which appellant’s penis was outside of his pants and he asked her to touch it.

{¶15} A forensic scientist from B.C.I. testified that he received an oral swab from

appellant and the SANE kit from Jane’s examination which contained her underwear. No

foreign D.N.A. was detected on Jane’s vaginal swabs, but appellant’s D.N.A. was

detected on the waistband and interior front panel of her underwear. There was a very

low amount of foreign D.N.A. on Jane’s skin swabs, not enough for comparison. The

witness acknowledged that incidental transfer of D.N.A. between household members is

well

- established and in this case the circumstances of the depositing of the D.N.A. are

unknown.

Jane Doe’s testimony

{¶16} Jane testified for appellee at trial. She acknowledged months of an

increasingly fraught relationship with appellant, in which he made her uncomfortable by[Cite as State v. Keen , 2023

- Ohio

- 4761.]

texting constantly, asking her to “love him” and “be his girl,” which she understood as

relentless requests to permit him to sexually abuse her. Appellant promised her gifts such

as jewelry, trips, and a phone in exchange for sexual favors and demanded to be added

to her SnapChat so she could send him pictures. Jane read numerous text conversations

into the record in which appellant asked her to play sexual games with him, to meet him

outside Mother’s bedroom in the middle of the night, and to allow him to feel her nails

against his skin. Jane testified that at first, appellant molested her under the guise of

“teaching” her, and as she became increasingly resistant to the abuse as she realized it

was wrong, he pushed her constantly to allow him access to her body.

{¶17} In the first month after the family moved to Muskingum County, before Jane

turned 13, Jane testified that appellant would get into her bed at night and in the early

mornings and touch her breasts and buttocks. He repeatedly asked her to touch his penis

and she refused. At least twice, appellant came into her bedroom while she pretended

to be asleep and touched her. Appellant threatened that if she told Mother, she would

break up the family.

{¶18} In the early morning of October 19, 2021, she awoke to appellant in her

bedroom, standing over her naked. She told appellant no and went back to sleep in her

brother’s bed to avoid appellant. Her brother’s bed is small and full of stuffed animals so

she would often sleep there to prevent appellant’s attentions. Appellant awakened her

again by pinning himself against her and her panties were down. Jane fought appellant

off, kicking and pushing, and bit him on the shoulder; appellant said, “I like it rough.”

{¶19} She broke free and ran to her mother’s bathroom where she locked herself

in. Appellant forced his way into the bathroom and she ran back to her bedroom.[Cite as State v. Keen , 2023

- Ohio

- 4761.]

Appellant forced her legs apart and put his hand on her vagina. He did not succeed in

placing his fingers or his penis inside her vagina. The incident ended when appellant told

Jane to get ready for school. Jane was upset and called her mother to come back to the

house.

Appellant’s testimony

{¶20} Appellant was the sole defense witness at trial. He testified that upon his

marriage to Mother and the years the family lived in Columbus, he had an excellent

relationship with Jane Doe and considered her his daughter. When the family moved to

Muskingum County, however, their relationship became increasingly strained; appellant

said Jane would no longer obey him and he attributed this to the loss of his job and his

inability to buy her things. He denied entering Jane’s room during the night or harassing

her during the night; he testified that he set alarms to wake him up at 3:00 a.m. due to

shift jobs he worked. He also set alarms for 5:00 a.m. to remind him to go home in time

for his wife to leave for work; although he became unemployed, he left the alarms set on

his phone so he could help Mother and the children get up for work and school.

{¶21} On October 19, 2021, appellant testified Jane Doe was asleep in her

brother’s bed and the brother was in bed with Mother; he woke up with his early alarms

as usual, smoked a cigarette, and sat on the couch while Mother got ready for work.

Appellant said Mother tried to wake Jane Doe before she left but Jane Doe didn’t get up.

He then entered the room, took the blankets off her, “gave her a few gentle shakes” and

told her to get up. Jane asked for five more minutes.

{¶22} Appellant said he then went to his other son’s bedroom to check whether

the boy wet the bed, which he had. Appellant therefore told the boy to take the sheets off[Cite as State v. Keen , 2023

- Ohio

- 4761.]

his bed, put them in the laundry room, and to take a shower. The boy got in the shower

and appellant returned to check if Jane was getting up. It was now around 6:15 a.m. and

appellant started laying out breakfast items while making sure both boys were up and

getting ready.

{¶23} Appellant realized Jane had gone back to bed. He therefore lifted her out

of the bed, intending to carry her to her own room to get ready. He testified Jane fought

him by pushing and kicking him, telling him to go away. He was able to lift her and she

bit him, so he dropped her back onto the bed. He denied pulling her panties down. Jane

ran out of the room. Appellant testified he had a bite mark on his left shoulder and the

police photographed it. He denied any sexual contact with Jane and said both boys were

awake at the time and moving around in the house.

{¶24} Appellant heard Jane crying in the master bathroom and went to check on

her, but the door was locked. He acknowledged he got a knife from the kitchen and forced

the bathroom door open, to find Jane sobbing on the floor. He asked what was wrong

and she said, “You’re a fat, ugly monster; leave me alone.” Appellant said this was

unusual behavior but Jane “sometimes” spoke to him this way, so he picked her up and

“escorted” her to her bedroom, “squeezing” her so she couldn’t fight. He said he pushed

her into her bedroom and closed the door, telling her to get ready for school. He denied

that he did any of this for a sexual purpose, and denied that Jane locked her bedroom

door or that he forced the bedroom door open.

{¶25} The boys were still getting ready for school. Appellant returned to preparing

breakfast and Mother called on Jane’s phone, which appellant found under Jane’s bed.

He did not recall his conversation with Mother although he said Jane was upset with him[Cite as State v. Keen , 2023

- Ohio

- 4761.]

and she was getting ready for school. He checked to make sure she was getting up, and

she was sitting at her vanity putting makeup on. Appellant went back to making breakfast.

Appellant was aware of Jane on the phone with Mother but didn’t hear or attempt to listen

to their conversation. Jane’s demeanor was “nonchalant” and she went back to her

bedroom while appellant and his sons waited for the boys’ bus.

{¶26} Appellant realized Jane missed her bus and texted Mother that he would be

taking Jane to school. As he waited in the driveway with his sons, though, Mother

returned and waited with them. Appellant did not tell her about his argument with Jane

or the bite because Mother was tired of refereeing their arguments. Appellant and Mother

smoked cigarettes together on their way back to the house; there was no conversation

appellant recalled. Inside, Jane was waiting with her backpack and she left with Mother.

{¶27} Appellant was “dumbfounded” when Mother returned to the house with the

sheriff and C.P.S. Jane was in the deputy’s car, but appellant didn’t know this at the time.

Morton spoke to appellant at the house and appellant complied with everything he asked.

{¶28} The investigation continued for 11 months and appellant met with a

detective several times. He consented to a search of his phone because he had nothing

to hide. Defense trial counsel questioned appellant about the specific texts with Jane

Doe; he said he felt “married” to Jane because he fought with Mother because Mother

was jealous of his attention to Jane. He gave both Mother and Jane Valentine’s gifts and

bought Jane flowers and jewelry. When appellant asked Jane whether she was sleeping,

he meant whether she was sleeping in bed with Mother so there was no room for him.

He demanded that Jane tell him that she loved him because he “demands love and

respect in his household,” not because he was inferring anything sexual. T. 665. Jane[Cite as State v. Keen , 2023

- Ohio

- 4761.]

stopped hugging him around the time she turned 12 and he wondered why, so he texted

her song lyrics.

{¶29} Appellant acknowledged a text conversation with Jane when he noticed she

was wrapped in a blanket, on the floor beside Mother’s bed. He came into the room to

get cigarettes and noticed Jane was on her phone, so he said he would “have to have fun

by himself” in reference to video games. When he said there wasn’t enough room on the

floor to “have fun,” he was referring to playing video games with Jane. He admitted he

told Jane he “likes it when [she] scratches and bites” him, but he didn’t mean anything

sexual. T. 671

- 672.

{¶30} He acknowledged Mother was uncomfortable with the tone of his texts to

Jane and told him to stop. T. 673. He denied that he ever attempted to unclothe or touch

Jane, or initiate sexual contact with her.

Indictment, trial, conviction, and sentence

{¶31} Appellant was charged by indictment with one count of gross sexual

imposition pursuant to R.C. 2907.05(A)(1) and (C)(1), a felony of the fourth degree [Count

I]; one count of kidnapping with a sexual

- motivation specification pursuant to R.C.

2905.01(A)(4) and (C)(1) and R.C. 2941.147(A), a felony of the first degree [Count II];

one count of attempted rape pursuant to R.C. 2923.02(A)(2) and (B), a felony of the

second degree [Count III]; one count of attempted rape pursuant to R.C. 2923.02(A)(2)

and (B), a felony of the second degree [Count IV]; one count of gross sexual imposition

against a child under the age of 13 pursuant to R.C. 2907.05(A)(4) and (C)(2), a felony of

the third degree [Count V]; one count of importuning pursuant to R.C. 2907.07(B)(1), a

felony of the fifth degree [Count VI]; one count of gross sexual imposition pursuant to R.C.[Cite as State v. Keen , 2023

- Ohio

- 4761.]

2907.07(A)(1) and (C)(1), a felony of the fourth degree [Count VII]; and one count of gross

sexual imposition pursuant to R.C. 2907.05(A)(1) and (C)(1), a felony of the fourth degree

[Count VIII].

{¶32} Appellant entered pleas of not guilty.

{¶33} The matter proceeded to trial by jury. At the close of the first day of trial,

appellant filed a written motion in limine pursuant to Evid.R. 404(B) and Evid.R. 404(A)

“to exclude any portion of the forensic interview offered by [appellee] that contains

references to alleged property damage and/or alleged domestic violence and/or alleged

sexual conduct that occurred prior to the alleged conduct charged in the indictment.”

Appellee responded with a memorandum in opposition on December 14, 2022, arguing

appellant’s motion was untimely and that the statements contained in the video were for

purposes of medical diagnosis and treatment. The trial court overruled the objection and

videotape was played in its entirety. Upon admission of appellee’s exhibits, appellant

renewed his objection and the exhibit was admitted.

{¶34} Appellant was found guilty as charged. The trial court sentenced appellant

to an aggregate indefinite prison sentence of 13 to 17 years. Appellant was also

determined to be a Tier III Sex Offender and a Violent Offender.

{¶35} Appellant now appeals from the trial court’s Entry of conviction and

sentence filed February 2, 2023.

{¶36} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶37} “I. SHOULD THIS HONORABLE COURT VACATE THE TRIAL COURT’S

GUILTY VERDICT AND REMAND FOR A NEW TRIAL BECAUSE THE TRIAL COURT[Cite as State v. Keen , 2023

- Ohio

- 4761.]

DENIED A TIMELY OBJECTION TO EVIDENCE BEING PRESENTED UNDER EVID.R.

403(A)?”

{¶38} “II. SHOULD THIS HONORABLE COURT VACATE THE TRIAL COURT’S

GUILTY VERDICT AND REMAND FOR A NEW TRIAL BECAUSE THE TRIAL COURT

DENIED A TIMELY OBJECTION TO EVIDENCE BEING PRESENTED UNDER EVID.R.

404(B)?”

{¶39} “III. SHOULD THIS HONORABLE COURT VACATE THE TRIAL COURT’S

GUILTY VERDICT AND REMAND FOR A NEW TRIAL BECAUSE THE TRIAL COURT’S

DENIAL OF THE DEFENSE TIMELY OBJECTIONS BASED ON A PRETRIAL ORDER

WAS AN ABUSE OF DISCRETION?”

ANALYSIS

I., II., III.

{¶40} Appellant’s three assignments of error are related and will be addressed

together. He argues that the trial court erred in admitting the videotape of Jane Doe’s

forensic interview in its entirety. We disagree.

{¶41} The decision to admit or exclude relevant evidence is within the sound

discretion of the trial court and will not be disturbed absent an abuse of discretion. See,

State v. Combs, 62 Ohio St.3d 278, 581 N.E.2d 1071 (1991); State v. Sage, 31 Ohio

St.3d 173, 510 N.E.2d 343 (1987). An abuse of discretion implies more than an error of

law or judgment; instead, the term suggests that the trial court acted in an unreasonable,

arbitrary, or unconscionable manner. See, State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d

715 (1992); State v. Montgomery, 61 Ohio St.3d 410, 575 N.E.2d 167 (1991). In addition,

when applying the abuse

- of

- discretion standard, a reviewing court may not substitute its[Cite as State v. Keen , 2023

- Ohio

- 4761.]

judgment for that of the trial court. In re Jane Doe I, 57 Ohio St.3d 135, 138, 566 N.E.2d

1181 (1991).

{¶42} 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). As a general rule, hearsay statements are inadmissible as

evidence. Evid.R. 802. There are, however, several exceptions to this rule, including the

exceptions set forth in Evid.R. 803(4) and Evid.R. 807(A). Evid.R. 803 includes

statements for purposes of medical diagnosis or treatment as an exception to the hearsay

rule and states in pertinent part:

(4) Statements for Purposes of Medical Diagnosis or

Treatment. Statements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general character

of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.

A child's statements made to a social worker regarding sexual abuse she experienced

are admissible under Evid.R. 803(4) when made for the purposes of medical diagnosis or

treatment. State v. Muttart

, 116 Ohio St.3d 5, 2007

– Ohio

– 5267, ¶ 39. In the context of

forensic interviews of child sexual abuse victims conducted at child advocacy centers, the

Supreme Court of Ohio has noted that “the interview serves dual purposes: (1) to gather

forensic information to investigate and potentially prosecute a defendant for the offense

and (2) to elicit information necessary for medical diagnosis and treatment of the victim.[Cite as State v. Keen , 2023

- Ohio

- 4761.]

The interviewer acts as an agent of each member of the multidisciplinary team.” State v.

Arnold

, 126 Ohio St.3d 290, 2010

- Ohio

- 2742, 933 N.E.2d 775, ¶ 33.

{¶43} To determine “whether statements made to a forensic interviewer at a child

advocacy center are made for the purpose of medical diagnosis and treatment, as

opposed to forensic investigative purposes, the court must ‘identify the primary purpose

of the statements.’ ” State v. Remy

, 2d Dist. Clark No. 2017

- CA

- 6, 2018

- Ohio

- 2856, ¶ 82,

quoting State v. Arnold

, 126 Ohio St.3d 290, 2010

- Ohio

- 2742, 933 N.E.2d 775, ¶ 28.

“Whether the purpose of a child's statements is for medical diagnosis or treatment will

depend on the facts of the particular case.” State v. Jones

, 2d Dist. Montgomery No.

26289, 2015

- Ohio

- 4116, 43 N.E.3d 833, ¶ 73.

{¶44} Appellant argues the entire forensic interview should not have been

admitted because Jane Doe made “references to domestic violence, criminal damaging,

and prior bad acts” which should have been excluded pursuant to Evid.R. 403(A); the

references are prohibited other

- acts evidence pursuant to Evid.R. 404(B); and the trial

court should have permitted the objection despite defense trial counsel’s failure to raise

the issue until the first day of trial.

{¶45} Appellant’s argument is problematic because he does not point to specific

statements when arguing the inadmissibility of the evidence and instead argues generally

that Jane’s statements about domestic violence and other acts of sexual abuse should

not have been admitted. Appellant’s brief, 3, 5, 8. We note appellant’s arguments at trial

were similarly unspecific and defense trial counsel sought to exclude 20 minutes of the

interview without description of the objectionable statements. T. 275. Appellant’s written

motion in limine before the trial court states portions of the interview “allege that[Cite as State v. Keen , 2023

- Ohio

- 4761.]

[appellant] caused property damage to the home on prior occasions including a prior

residence; allege an incident of domestic violence between [appellant and Mother]; and

allege incidents of sexual contact with the prosecuting witness that occurred prior to the

charged allegations.” Motion in Limine, Dec. 14, 2022, pages 1, 3.

{¶46} The burden is upon appellant to affirmatively demonstrate error on appeal.

App.R. 16(A)(7); State v. Sims, 10th Dist. Franklin No. 14AP

- 1025, 2016

- Ohio

- 4763, ¶

10

- 11. This Court is not required to search the record for evidence to support appellant's

claims. State v. Cook

, 5th Dist. No. 2015CA00090, 2016

- Ohio

- 2823, 64 N.E.3d 350, ¶

106, citing Bd. of Trustees of Chester Tp. v. Baumgardner, 11th Dist. Geauga No. 2002

–

G

– 2430, 2003

- Ohio

- 4361, 2003 WL 21962566, ¶ 9, internal citation omitted. “If an

argument exists that can support [an] assignment of error, it is not this court's duty to root

it out.” State v. Colston

, 5th Dist. Muskingum No. CT2019

- 0076, 2020

- Ohio

- 3879, ¶ 58,

citing Thomas v. Harmon

, 4th Dist. Lawrence No. 08CA17, 2009

- Ohio

- 3299, at ¶ 14,

internal citation omitted.

{¶47} Upon our review of the record, we included pertinent information from the

forensic interview in our statement of the facts, supra. We decline to make appellant’s

argument for him when he has not cited to specific portions of the record, but will generally

address whether the trial court erred in admitting the following portions of the videotape:

Jane Doe’s statements that she has seen appellant punch walls, throw chairs, and once

hit Mother with a pillow; and descriptions of sexual abuse that occurred before the family

moved to Muskingum County.

{¶48} Upon our review of the record, we find the cited statements were made in

response to direct questions from Kaiser for the purpose of medical diagnosis and[Cite as State v. Keen , 2023

- Ohio

- 4761.]

treatment. Kaiser testified she asked Jane Doe about risk factors in the home because

part of her role is formulating a safety plan; studies show domestic violence is correlated

with child abuse 30

- 60 percent of the time; and Jane said she hasn’t seen anyone hurt

her mother. Jane testified to, and appellant was charged with, multiple counts of G.S.I.

and importuning that occurred on dates other than October 19, 2021, when appellant

came into her bed early in the morning and touched Jane and urged her to touch him.

Again, appellant has not specified which statements he objects to, but we note the Jane’s

statements about sexual abuse that occurred prior to the move to Muskingum County

were in response to questions posed by Kaiser for the purpose of medical diagnosis and

treatment. Kaiser’s questions to Jane during the interview included screening questions

for exposure to pornography, incidents of drug use or abuse in the home, and visible acts

of violence including physical discipline involving any family member; Kaiser testified

these questions are part of her overall assessment of Jane for purposes of medical

diagnoses, treatment, and development of a safety plan.

{¶49} Turning to appellant’s arguments, he asserts the videotape in its entirety

should not have been admitted because the overall effect of the interview was more

prejudicial than probative. Evid.R. 403(A) states: “Although relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” In reaching a decision

involving admissibility under Evid.R. 403(A), a trial court must engage in a balancing test

to ascertain whether the probative value of the offered evidence outweighs its prejudicial

effect. State v. Hymore

, 9 Ohio St.2d 122, 224 N.E.2d 126 (1967), paragraph seven of

the syllabus. In order for the evidence to be deemed inadmissible, its probative value[Cite as State v. Keen , 2023

- Ohio

- 4761.]

must be minimal and its prejudicial effect great. State v. Morales

, 32 Ohio St.3d 252, 258,

513 N.E.2d 267 (1987). Furthermore, relevant evidence which is challenged as having

probative value that is substantially outweighed by its prejudicial effects “should be

viewed in a light most favorable to the proponent of the evidence, maximizing its probative

value and minimizing any prejudicial effect” to the party opposing its admission. State v.

Maurer

, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984).

{¶50} Any CAC forensic interview of a child victim will be both highly prejudicial

and highly probative in a case of sexual abuse, but such interviews are admissible

evidence. Viewing the interview in the light most favorable to appellee, its probative value

substantially outweighs any prejudice to appellant.

{¶51} Generally, Jane Doe’s disclosures during the interview were reasonably

pertinent to her diagnosis or treatment. See

, State v. Cook

, 3rd Dist. Union No. 14

- 19

-

26, 2020

- Ohio

- 3411, ¶ 33. [T]he Supreme Court has “classified information regarding the

identity of the perpetrator, the type of abuse alleged, the identification of the areas where

the child had been touched and the body parts of the perpetrator that had touched her,

as well as the time frame of the abuse, as statements for diagnosis and treatment

because that information allowed the doctor or nurse to determine whether to test the

child for sexually transmitted diseases, and to identify any trauma or injury sustained

during the alleged abuse.” State v. C.C.B.

, 10th Dist. Franklin No. 18AP

- 782, 2019

- Ohio

3631, ¶ 36, quoting In re C.S.

, 10th Dist. Franklin No. 11AP

- 667, 2012

- Ohio

- 2988, ¶ 14,

internal citation omitted.

{¶52} The child victim’s continued exposure to the perpetrator, possible

contraction of a sexually

- transmitted disease, the perpetrator’s identity and the[Cite as State v. Keen , 2023

- Ohio

- 4761.]

psychological effect on a child are all relevant to the child’s diagnosis and treatment. Id.

Jane Doe’s disclosures during the interview are relevant and pertinent to diagnosing Jane

Doe, providing her with appropriate treatment, and ensuring her future safety. Id.

{¶53} Appellant further argues admission of the videotape violates Evid.R. 404(B),

which 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. Recently, in State v.

Smith

, 162 Ohio St.3d 353, 2020

- Ohio

- 4441, 165 N.E.3d 1123 at ¶¶ 36

- 38 the Supreme

Court of Ohio stated:

Evid.R. 404(B) 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. Other

acts evidence may, however, be admissible for another non

character

- based purpose, such as “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Id. “The key is that the evidence must prove something

other than the defendant's disposition to commit certain acts.” State

v. Hartman

, 161 Ohio St.3d 214, 2020

- Ohio

- 4440, 161 N.E.3d 651,

¶ 22.

In Hartman

, we provided a guide for courts to evaluate

proposed other

- acts evidence to determine whether the evidence

connects to a permissible purpose without relying on any improper

character inferences. The threshold question is whether the

evidence is relevant. Id. at ¶ 24; Evid.R. 401; see also State v.[Cite as State v. Keen , 2023

- Ohio

- 4761.]

Williams

, 134 Ohio St.3d 521, 2012

- Ohio

- 5695, 983 N.E.2d 1278, ¶

20. As we explained in Hartman

, 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; see also

Huddleston v. United States

, 485 U.S. 681, 686, 108 S.Ct. 1496, 99

L.Ed.2d 771 (1988).

{¶54} Thus, courts should begin by evaluating whether the evidence is relevant to

a non

- character

- based issue that is material to the case. If the evidence is not premised

on improper character inferences and is probative of an issue in the case, the court must

then consider whether the evidence's value “is substantially outweighed by the danger of

unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A);

Hartman at ¶ 29. Because other

- acts evidence “ ‘almost always carries some risk that the

jury will draw the forbidden propensity inference,’ ” courts should be vigilant in balancing

the prejudicial impact of the evidence against its probative value. Id. at ¶ 33, quoting

United States v. Gomez

, 763 F.3d 845, 857 (7th Cir. 2014) (en banc).

{¶55} In the instant case, appellant has not identified the specific other

- acts

evidence of which he complains. Upon our review of the record, the references to

appellant punching holes in walls, hitting Mother with a pillow, and committing other acts

of sexual abuse were fleeting and appellee did not dwell on the statements in the[Cite as State v. Keen , 2023

- Ohio

- 4761.]

interview. Appellee certainly did not use statements in the forensic interview as character

or propensity evidence, and appellant points to no such use of the evidence. Instead, it

was defense trial counsel who asked Kaiser about the statistical relationship between

domestic violence and other types of abuse, and questioned why Kaiser marked “other

sexually deviant activity” in her notes, drawing attention to the disputed portions of the

video. T. 304

- 306.

{¶56} Even if we find the fleeting references to other bad acts to have been

impermissible evidence that should have been redacted from the video, we find the

admission to be harmless error. If a court finds that evidence was inadmissible under

Evid. R. 404(B), the court can still determine that the error was harmless. The Supreme

Court of Ohio has held that error is harmless if “there is no reasonable possibility that the

evidence may have contributed to the accused's conviction.” State v. Drew

, 10th Dist. No.

07AP

- 467, 2008

- Ohio

- 2797. at ¶ 31, quoting State v. Bayless

, 48 Ohio St.2d 73, 357

N.E.2d 1035 (1976), paragraph seven of the syllabus. Moreover, it is appropriate to find

error harmless where there is “either overwhelming evidence of guilt or some other indicia

that the error did not contribute to the conviction.” State v. Ferguson

, 5 Ohio St.3d 160,

166, fn. 5, 450 N.E.2d 265 (1983). “When considering whether error is harmless, our

judgment is based on our own reading of the record and on what we determine is the

probable impact the statement had on the jury.” State v. Drew

, supra, citing State v.

Kidder

, 32 Ohio St.3d 279, 284, 513 N.E.2d 311 (1987).

{¶57} We find any error in admission of the entire forensic interview to be

harmless. In the instant case, Jane Doe gave consistent, unwavering accounts of

appellant’s sexual abuse, and her accounts were corroborated in key details by[Cite as State v. Keen , 2023

- Ohio

- 4761.]

appellant’s own words in the text messages and by his own dubious testimony. Appellant

was inconsistent in his explanations both at trial and during the investigation. See, Timm,

supra

.

{¶58} We note that harmless error is described as “[a]ny error, defect, irregularity,

or variance which does not affect substantial rights shall be disregarded.” Crim.R. 52(A).

Error is harmless beyond a reasonable doubt when the remaining evidence constitutes

overwhelming proof of the defendant's guilt. State v. Williams

, 38 Ohio St.3d 346, 349

–

350, 528 N.E.2d 910 (1988). Overcoming harmless error requires a showing of undue

prejudice or a violation of a substantial right. State v. Granderson

, 5th Dist. No. 2007CAA

01

- 0005, 177 Ohio App.3d 424, 2008

- Ohio

- 3757, 894 N.E.2d 1290, ¶ 78, citing State v.

Lockhart, 5th Dist. No. 06CAA100080, 2008

- Ohio

- 57, 2008 WL 94733.

{¶59} Finally, appellant argues the trial court’s pretrial order did not prohibit a

timely objection during trial. As Kaiser testified, appellee prepared to play the videotape

of the forensic interview and defense trial counsel objected on the record. Appellant also

filed a written motion in limine to which appellee responded in writing. The motion in

limine argued the tape of the forensic interview should be excluded for the same reasons

appellant has argued on appeal, to wit, relevancy pursuant to Evid.R. 403(A) and

impermissible other

- acts evidence pursuant to Evid.R. 404(B). The trial court questioned

defense counsel how long she had the video in her possession and counsel admitted she

received it during initial discovery, but didn’t raise an objection earlier because she didn’t

think appellee would admit the entire video. T. 277, 283

- 284. The trial court overruled

appellant’s objection, but preserved it for the record and permitted counsel to file written

motions. We note appellant has not assigned ineffective assistance of counsel as error.[Cite as State v. Keen , 2023

- Ohio

- 4761.]

The untimely objection was heard, argued, and preserved. We therefore fail to find the

trial court erred in reminding defense trial counsel that the arguments should have been

raised within the trial court’s deadline of 14 days prior to trial.

{¶60} Appellant’s three assignments of error are overruled.

CONCLUSION

{¶61} Appellant’s three assignments of error are overruled and the judgment of

the Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

King, J., concur.