[Cite as State v. Stuart, 2020-Ohio-3239.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2018-L-145

 - vs - : 

DONALD J. STUART, : 

 Defendant-Appellant. : 

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2013 CR 

000432 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, Alexandra Kutz and Jennifer A. McGee, 

Assistant Prosecutors, 105 Main Street, P.O. Box 490, Painesville, Ohio 44077 (For 

Plaintiff-Appellee). 

Vanessa R. Clapp, Lake County Public Defender and Melissa A. Blake, Assistant Public 

Defender, 125 East Erie Street, Painesville, Ohio 44407 (For Defendant-Appellant). 

MARY JANE TRAPP, J. 

{¶1} Appellant, Donald J. Stuart (“Mr. Stuart”), appeals his convictions for rape, 

kidnapping, sexual battery, and menacing by stalking following a jury trial in the Lake 

County Court of Common Pleas. 

{¶2} Mr. Stuart raises seven assignments of error on appeal. He argues that: 1) 

the trial court improperly excluded evidence of the victim’s prior sexual abuse pursuant to 

the rape shield statute, R.C. 2907.02; 2) the trial court improperly admitted evidence of 
 2

Mr. Stuart’s other acts, more specifically, his “grooming and manipulation” behaviors 

towards the victim; 3) the trial court improperly allowed the state’s expert witness to testify; 

4) the trial court erred in denying his motion to suppress; 5) the evidence was legally 

insufficient to prove his convictions; 6) the manifest weight of the evidence does not 

support his convictions; and, lastly, 7) his right to a speedy trial was violated. 

{¶3} We affirm the judgment of the Lake County Court of Common Pleas, finding 

that: 1) the trial court properly excluded evidence of the victim’s prior sexual abuse as it 

was highly prejudicial and immaterial; 2) the trial court properly admitted evidence of Mr. 

Stuart’s other acts of grooming and manipulation as it was directly relevant and part of 

the offenses charged; 3) the state’s expert properly testified about child sexual abuse 

victims and their common delay in reporting, as well as grooming and manipulation 

behaviors, all of which is knowledge outside of the common layperson; 4) the trial court 

properly overruled Mr. Stuart’s motion to suppress because he was not subjected to a 

custodial interrogation; 5) Mr. Stuart failed to make a sufficiency of the evidence 

argument, instead arguing as to the credibility of the victim witness; however, the state 

introduced sufficient evidence from which the jury could find Mr. Stuart guilty of rape, 

kidnapping, sexual battery, and menacing by stalking; 6) the manifest weight of the 

evidence is heavily in favor of the jury’s verdict; and, lastly, 7) Mr. Stuart knowingly and 

voluntarily filed a written waiver of his rights to a speedy trial, and the time between his 

withdrawal of his waiver and the trial date was neither lengthy nor prejudicial. 

Substantive and Procedural History 

{¶4} On June 12, 2013, Detective Colleen Petro (“Detective Petro”) from the 

Mentor Police Department received information that another officer was taking a sexual 
 3

assault report from a minor child victim against her adoptive father. The victim, “J.S.,” 

who was 15 years old, alleged that Mr. Stuart made inappropriate and sexual comments 

and sexually assaulted her. 

{¶5} J.S. disclosed the abuse to a friend, and together they contacted Lake 

County Job & Family Services (“LCJFS”) during the school day. A representative from 

LCJFS was also at the high school when Detective Petro arrived. Another detective 

informed Detective Petro that Mr. Stuart had been calling the high school all day because 

J.S. did not take the bus to school and he was worried she was missing. Detective Petro 

decided to take J.S. to the police station to make a statement.

The Monitored Call 

{¶6} When they arrived at the station, the detective asked J.S. if she would be 

willing to make a monitored phone call to Mr. Stuart. J.S. agreed, and with Detective 

Petro’s assistance, she called Mr. Stuart. J.S. told him she was with her friend, “Halle,” 

and then asked him why he would abuse her, specifically mentioning the instances of 

rape and the sexual comments he made to her. Mr. Stuart denied her allegations, and at 

times, apologized, saying, “it was wrong,” and also saying said he could not recall what 

happened and “anything is possible.” 

{¶7} Mr. Stuart was coincidentally already at the Mentor Police Department when 

J.S. and Detective Petro were calling him. When J.S. did not get dropped off by the bus 

after school, he decided to go to the station and file a missing person report. There is a 

video of Mr. Stuart in the lobby talking on his cellphone, presumably to J.S. 

The Mentor Police Department Interview 
 4

{¶8} When the call concluded, Detective Petro located Mr. Stuart in a downstairs 

interview room and asked him if he would be willing to discuss J.S.’s whereabouts with 

her and another officer, Detective Jim Collier. Before Detective Petro began the interview, 

she gave Mr. Stuart a written form detailing his Miranda rights. Mr. Stuart asked her if he 

should call his lawyer while simultaneously pulling his cell phone out of his pocket. 

Detective Petro informed Mr. Stuart it was up to him but that “he came here on his own.” 

The reason she was gave him the form was “he [Mr. Stuart] had a lot of stuff going on in 

the court right now” and she “figured she’s just going to cover herself. I’m a police officer.” 

When asked if he would initial the form that she read and if he understood his rights, Mr. 

Stuart replied that he would initial the form but that he was going to call his attorney. 

Detective Petro replied, “Okay. Why did you come in today?” 

{¶9} The videotape showed Mr. Stuart calling and texting his attorney, while 

Detective Petro inquired about J.S.’s disappearance and the last time he communicated 

with her. He willingly responded to her questions. When Mr. Stuart indicated he had just 

received a call from J.S., Detective Petro began to inquire of the specifics of his 

conversation. Mr. Stuart again attempted to call his attorney and ultimately left a 

message. Mr. Stuart continued to respond to the detective’s questions but did not reveal 

the topic of his conversation with J.S. 

{¶10} Mr. Stuart told the detectives that J.S. told the truth 90% of the time but that 

when she did not, the lies were “way out there.” He then informed them that he was 

initially the foster parent of J.S. and her four biological brothers and sisters. Mr. Stuart 

and his wife, Sharon (“Mrs. Stuart”), adopted the children at different times over the years, 

adopting J.S. when she was eight. He also told them that J.S. had “RAD,” or reactive 
 5

attachment disorder, and he detailed her early history, which included several different 

foster placements and prior sexual abuse. One of the abuse allegations was against her 

brother, who sexually abused J.S. in the Stuart’s home. The brother was removed from 

the Stuart’s home by LCJFS. LCJFS subsequently charged the Stuarts with neglect. 

Those charges were pending at the time of the interview. 

{¶11} The interview progressed, with the detectives asking questions about J.S., 

the problems she was currently facing, and what she said during their “twenty-minute” 

phone call. Mr. Stuart did not share the details of the call. The detectives then disclosed 

that they knew J.S. had made sexual allegations against him and asked if he would like 

to help them “understand the situation.” 

{¶12} Mr. Stuart replied that he needed his attorney and tried calling his attorney 

once more. The detectives asked him several more questions, to which Mr. Stuart did 

not answer. Once Mr. Stuart repeated that he wanted to speak to his attorney, the 

interview concluded, and both detectives left the room. Mr. Stuart was arrested shortly 

thereafter. 

Pretrial Matters 

{¶13} The case was bound over from the Mentor Municipal Court to the Lake 

County Court of Common Pleas, where Mr. Stuart was indicted by the grand jury on eight 

counts: 1) rape, a first degree felony, in violation of R.C. 2907.02(A)(2); 2) kidnapping, a 

first degree felony, in violation of R.C. 2905.01(A)(4); 3) kidnapping, a first degree felony, 

in violation of R.C. 2905.01(A)(2); 4) & 6) two counts of rape, a first degree felony, in 

violation of R.C. 2907.02(A)(1)(c); 5) & 7) two counts of sexual battery, a third degree 
 6

felony, in violation of R.C. 2907.03(A)(5); and lastly, 8) menacing by stalking, a fourth 

degree felony, in violation of R.C. 2903.211(A)(1). 

{¶14} On December 17, 2013, Mr. Stuart signed a speedy trial waiver, waiving his 

statutory and constitutional rights to a speedy trial. Mr. Stuart also filed a motion to 

suppress any and all statements obtained from him as a result of the interview conducted 

by the Mentor Police Department, arguing the interview was a custodial interrogation. In 

turn, the state filed a response, arguing the interview was not a custodial interrogation 

because Mr. Stuart was voluntarily at the police station, he was free to leave at any time, 

and he never made an unequivocal or unambiguous request for counsel. A hearing on 

the motion to suppress was held on March 14, 2014. 

{¶15} In 2014, Mr. Stuart filed two motions for continuances of the jury trial, citing 

discovery and depositions that still needed to be conducted. Numerous motions for 

discovery were filed by both Mr. Stuart and the state. During 2016 through 2018, the 

state filed several motions for a status hearing and to set a date for trial because 

considerable time was passing. 

The Court’s Ruling on Mr. Stuart’s Motion to Suppress 

{¶16} In a judgment entry issued on June 25, 2018, the court denied Mr. Stuart’s 

motion to suppress, finding that Mr. Stuart was not in custody at the time he was 

interviewed by the Mentor Police Department. Mr. Stuart voluntarily came to the station 

and initiated the contact, he was never arrested, handcuffed or restrained, and he was 

able to make and receive telephone calls and text messages. The court noted that Mr. 

Stuart was offered and provided with a beverage of his choice and that he spent most of 

the interview speaking about the subject that motivated him go to the Mentor Police 
 7

Department in the first place, i.e., his daughter not coming home from school. Mr. Stuart 

had no idea he was suspected of criminal wrongdoing, and there was no evidence that 

he wanted to leave or was prevented from doing so. Lastly, Detective Petro testified at 

the hearing that she did not decide to arrest Mr. Petro until shortly before the interview 

was concluded. 

Motion to Discharge for Speedy Trial Right Violation 

{¶17} On July 5, 2018, the court set the matter for a jury trial to begin on August 

21. Soon after, on July 18, 2018, Mr. Stuart filed a motion to discharge for violation of his 

right to a speedy trial. The state, in opposition, noted that Mr. Stuart expressly waived 

his right to a speedy trial in a written waiver of time that did not contain a time limit, and 

was therefore, unlimited. Mr. Stuart then filed a motion for a continuance of the jury trial 

on August 13, which the court granted, setting the trial for October 30, 2018. 

{¶18} The court ruled on Mr. Stuart’s motion to discharge several weeks later, 

denying the motion. The court noted that Mr. Stuart knowingly and voluntarily executed 

and filed a written waiver of time that reserved only the right to challenge any pre-arrest 

and/or pre-charge delay without any other restrictions or time limit. Further, Mr. Stuart 

never formally withdrew his waiver of time and never filed a demand for trial. Thus, Mr. 

Stuart’s waiver was still in effect at the time he filed his motion to dismiss his case on 

speedy trial grounds. Construing his motion to discharge as a formal withdrawal of his 

waiver, the trial court examined the time between the “withdrawal” and the date of trial. 

The court found that the length of the delay was only 34 days between Mr. Stuart’s 

withdrawal of his speedy trial waiver and the date set for trial, which was not prejudicial, 
 8

especially in light of the fact that the defense indicated it would not be prepared to try the 

case by that date. 

Motions in Limine 

{¶19} The state filed several motions in limine to present evidence of Mr. Stuart’s 

other acts. One dealt with the prior sexual activities/abuse Mr. Stuart engaged in with a 

minor when he, himself, was a minor. The subject of the state’s second motion in limine 

dealt with the grooming and manipulative behaviors he advanced toward J.S. The state’s 

third motion sought to preclude the defense from presenting any evidence of the minor 

victim’s prior sexual abuse history. 

{¶20} The defense also filed several motions in limine to preclude the state’s 

expert from testifying about sexually abused children and to prevent the state from 

mentioning Mr. Stuart’s bond conditions, which prohibited him from residing with his wife 

and children. 

{¶21} First, the court overruled the defense’s motion in limine to preclude the 

state’s expert from testifying. The court found that if the state was able to establish at 

trial that their expert, Diane Daiber, a sexual abuse nurse examiner (“SANE”), was 

qualified as an expert, then her testimony would be admissible to aid the jury in 

understanding the evidence. The court reasoned that the state was not calling her as a 

witness to offer an opinion as to the truthfulness of the victim or whether the victim was 

sexually abused but to testify that the victim’s behavior as an alleged child victim of sexual 

abuse was consistent with behavior observed in sexually abused children, which is 

admissible under the Ohio Rules of Evidence. 
 9

{¶22} The court also overruled the state’s first motion in limine, finding that any 

evidence that the state wanted to introduce of alleged sexual abuse of a minor victim that 

occurred over thirty years ago, when Mr. Stuart was himself a minor, was not relevant 

and not admissible. 

{¶23} Third, the court granted Mr. Stuart’s motion in limine to prohibit the state 

from introducing any evidence or testimony or making any comments concerning Mr. 

Stuart’s bond conditions. 

{¶24} Prior to the jury trial, the court spoke with both attorneys on the record as to 

the state’s motion in limine pursuant to R.C. 2907.02(D) regarding the victim’s prior sexual 

abuse history. The court granted the state’s motion, finding that the rape shield statute 

precluded any sexual activity of a victim, whether consensual or nonconsensual, from 

being introduced. The trial court found there were no allegations that the victim made 

false accusations. Moreover, it found that the evidence of the prior sexual abuse the 

defense sought to introduce was unrelated and inadmissible. 

Trial and Sentencing 

{¶25} A jury trial was held over nine days. The state presented the testimony of 

several officers from the Mentor Police Department, the victim, J.S., J.S.’s social worker 

from LCJFS, and Diane Daiber, the SANE expert witness. The defense presented the 

testimony of Mrs. Stuart, a woman with whom J.S. was placed after she left the Stuarts, 

a family friend and owner of a teashop where J.S. worked several days a week during the 

time of the incident, a parent of J.S.’s friend, a licensed private investigator who analyzed 

the Stuart’s home and compared it with J.S.’s version of events, and Mr. Stuart himself. 
 10 

{¶26} The jury returned a guilty verdict on all eight counts, and the matter was 

deferred for sentencing until November 28, 2018. At sentencing, the trial court found that 

Counts 2 and 3 merged with each other and with Count 1; Count 5 merged with Count 4; 

Count 7 merged with Count 6; and Count 8 did not merge. The state elected to proceed 

to sentencing on Count 1 (rape), Count 4 (rape), Count 6 (rape), and Count 8 (menacing 

by stalking). Mr. Stuart was found to be a Tier III Sex offender with a duty to register and 

was sentenced to a stated prison term of ten years on Count one, six years on Count 4, 

six years on Count 6, and 12 months on Count 8. The prison terms imposed on Count 4 

and Count 6 were ordered to be served concurrent to one another and consecutive to 

Count 1. The prison term imposed on Count 8 was ordered to be served concurrent to 

the prison terms imposed on Count 1, Count 4, and Count 6. The total term of 

imprisonment imposed was 16 years. 

{¶27} Mr. Stuart now appeals, raising seven assignments of error: 

{¶28} “[1.] The trial court’s application of Ohio’s rape shield statute, R.C. 

2907.02(D), violated the defendant-appellant’s constitutional rights to fair trial, 

confrontation and due process as guaranteed by the Fifth, Sixth and Fourteenth 

amendments to the United States Constitution and Article I Sections 10 and 16 of the 

Ohio Constitution. 

{¶29} “[2.] The defendant-appellant was deprived of his rights to a fair and 

impartial trial and due process under the Fourteenth Amendment to the United States 

Constitution and Section 10, Article I of the Ohio Constitution when the trial court allowed 

the state to introduce evidence of his alleged ‘prior bad acts.’ 
 11 

{¶30} “[3.] The trial court violated the defendant-appellant’s constitutional rights 

to fair trial and due process, as guaranteed by the Fifth and Fourteenth Amendments to 

the United States Constitution and Article I Sections 10 and 16 of the Ohio Constitution, 

when it permitted the SANE nurse to testify as an expert witness. 

{¶31} “[4.] The trial court erred when it denied the defendant-appellant’s motion 

to suppress in violation of his due process rights as guaranteed under the Fifth, Sixth, 

and Fourteenth Amendments of the United States Constitution and Section 10, Article I 

of the Ohio Constitution. 

{¶32} “[5.] The trial court erred to the prejudice of the defendant-appellant when 

it denied his motion for acquittal made pursuant to Crim.R. 29(A). 

{¶33} “[6.] The trial court erred to the prejudice of the defendant-appellant when 

it returned a verdict of guilty against the manifest weight of the evidence. 

{¶34} “[7.] The trial court erred in denying the defendant-appellant’s motion to 

discharge for violation of defendant’s right to a speedy trial, thus violating the defendantappellant’s constitutional and statutory rights to a speedy trial.” 

Admissibility of the Victim’s Prior Sexual Abuse 

{¶35} In his first assignment of error, Mr. Stuart contends the trial court erred in 

applying Ohio’s rape shield statute, R.C. 2907.02(D), to exclude evidence of the minor 

victim’s prior sexual abuse, thus violating his constitutional rights to a fair trial, 

confrontation, and due process as guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments to the United States Constitution and Article I, Sections 10 and 16 of the 

Ohio Constitution. 
 12 

{¶36} More specifically, Mr. Stuart wanted to introduce evidence that J.S. had 

been previously adjudicated an abused child in juvenile court prior to her adoption by the 

Stuarts and that she was in fear of her brother, who had sexually abused her in the 

Stuart’s home. Mr. Stuart argued that the rape shield statute only excludes consensual 

sex and that evidence of nonconsensual sex is admissible. He further argued the 

evidence was probative to show J.S. had prior knowledge of anal rape and to show her 

delayed reporting in this instance against Mr. Stuart differed from her immediate reporting 

of the sexual abuse she suffered from her brother. 

{¶37} The court disagreed, finding the victim’s prior sexual abuse was 

inadmissible and, citing the exceptions delineated in R.C. 2907.02(D), the rape shield 

statute does not distinguish between consensual and nonconsensual sex. We agree. 

{¶38} The rape shield law provides that “[e]vidence of specific instances of the 

victim's sexual activity * * * shall not be admitted under this section unless it involves 

evidence of the origin of semen, pregnancy, or disease, the victim's past sexual history 

with the offender, and only to the extent that the court finds that the evidence is material 

to a fact at issue in the case and that its inflammatory or prejudicial nature does not 

outweigh its probative value.” R.C. 2907.02(D); State v. Egli, 11th Dist. Portage No. 2007-

P-0052, 2008-Ohio-2507, ¶51. 

{¶39} In deciding whether the trial court was warranted in excluding evidence of 

the victim’s prior sexual abuse, we are mindful that “[t]he evidentiary determination of a 

trial court under R.C. 2907.02(D) should not be disturbed on appeal absent a showing of 

an abuse of discretion * * *. The abuse of discretion standard is also used when reviewing 

a determination by the trial court weighing the probative value of the evidence with its 
 13 

danger of unfair prejudice under Evid.R. 403.” Id. at ¶52, quoting State v. Hardy, 11th 

Dist. Portage No. 96-P-0129, 1997 WL 665979, *14-15 (Oct. 10, 1997). An abuse of 

discretion is a term of art, “connoting judgment exercised by a court which neither comport 

with reason, nor the record.” State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-

Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-78 (1925). Stated 

differently, an abuse of discretion is the trial court’s “‘failure to exercise sound, 

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 

2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). 

{¶40} The evidence defense counsel sought to introduce did not relate to the 

origin of semen, pregnancy, or disease or the victim’s past sexual history with Mr. Stuart. 

Rather, defense counsel attempted to introduce evidence of the victim’s prior sexual 

abuse to show an alternative source of knowledge of anal rape. Defense counsel also 

sought to introduce evidence of J.S.’s immediate disclosure of the sexual abuse she 

suffered from her brother, while in the case of Mr. Stuart, she made a delayed disclosure. 

{¶41} We do not find that the trial court abused its discretion in excluding this 

evidence. “[T]he purpose of the rape shield law [is] to protect the victim from harassment 

and to discourage the tendency in rape cases to try the victim rather than the defendant.” 

Egli at ¶54, quoting State v. Archibald, 11th Dist. Lake Nos. 2006-L-047 & 2006-L-207, 

2007-Ohio4966, ¶52; State v. Gardner, 59 Ohio St.2d 14, 17 (1979). It was certainly 

within the court's discretion to exclude such evidence. 

{¶42} We also do not find persuasive Mr. Stuart’s argument that the rape shield 

only applies to consensual prior sexual acts and that nonconsensual sexual abuse is 

admissible. While this case has been pending on appeal, the Supreme Court of Ohio 
 14 

decided this very issue, thus rendering this portion of Mr. Stuart’s argument meritless. In 

State v. Jeffries, Slip Opinion No. 2020-Ohio-1539, the court expressly held that “the plain 

meaning of the term ‘sexual activity’ as used in the rape-shield law includes both 

consensual and nonconsensual sexual activity and that both are barred from admission 

into evidence by the rape-shield law, absent one of the specific exceptions listed in the 

law.” (Emphasis added.) Id. at ¶30. 

{¶43} Citing to In re Michael, 119 Ohio App.3d 112 (2d Dist.1997), Mr. Stuart also 

argues that evidence of J.S.’s prior sexual abuse should have been admissible as an 

exception under the rape shield statute because it showed “an alternative source” of the 

“victim’s knowledge of sexual conduct or activity.” The facts of In re Michael, however, 

are markedly different, in that the victim was only 8 years of age. Thus, the Second 

Appellate District held that a trial court’s exclusion of all evidence of a victim’s prior sexual 

abuse under those circumstances would be unreasonable and constitute an abuse of 

discretion. Id. at 121. 

{¶44} We agree with the Second District’s later decision in State v. Hennis, 2d 

Dist. Clark No. Civ.A.2003 CA 21, 2005-Ohio-51, in which the court distinguished its 

holding in In re Michael because the victim teenager was old enough that her sexual 

knowledge alone was not evidence that she had been sexually abused. Id. at ¶50. See 

also State v. Black, 3d Dist. Hardin No. 6-06-08, 2007-Ohio-3133, ¶14-15 (holding that 

even though the victim was closer in age to the victim in In re Michael than Hennis and, 

unlike the victim in Hennis, she probably could not have attained sexual knowledge unless 

she was abused, any prior sexual abuse of the victim was neither probative nor material 

because of the appellant’s own admissions). 
 15 

{¶45} J.S. was fifteen years old and in high school at the time the subject offenses 

occurred. Thus, “sexual knowledge alone was not evidence that she had been sexually 

abused.” Black at ¶14. Further, any delay in reporting versus her immediate reporting of 

the sexual abuse she suffered from her brother is immaterial and highly prejudicial. The 

court did allow the defense to cross examine J.S. on a letter she wrote to Mrs. Stuart 

about the incident with her brother and to elicit testimony that J.S. was afraid of her 

brother. 

{¶46} Lastly, Mr. Stuart argues the trial court should have conducted an in camera 

hearing so that the court could have questioned the victim regarding her prior sexual 

abuse. Prior to trial and on the record, the trial court conferenced with the state and 

defense counsel regarding the state’s motion pursuant to R.C. 2907.02(D). The trial court 

confirmed with both that there was no doubt J.S.’s prior sexual abuse was not false 

accusations. 

{¶47} There is no requirement to hold an in camera hearing of the victim’s prior 

sexual activity per R.C. 2907.02. Pursuant to the Supreme Court of Ohio’s holding in 

State v. Boggs, 63 Ohio St.3d 418 (1992), a trial court is only required to conduct an in 

camera hearing when there is a possibility that the victim made false accusations of 

sexual abuse or activity to ascertain whether sexual activity was really involved, and, if 

so, whether cross-examination on the accusation would be prohibited by R.C. 

2907.02(D), or whether the accusation was totally unfounded and therefore could be 

inquired into pursuant to Evid.R. 608(B). Id. at paragraph two of the syllabus. See also 

State v. Singleton, 11th Dist. No. Lake No. 2002-L-077, 2004-Ohio-1517, ¶65 (“Assuming 

there is a good faith basis for the question, a defendant may ask a victim if he or she has 
 16 

made prior false accusations of sexual activity. Only if the victim responds affirmatively 

is the court required to conduct an in camera hearing to determine if the prior instances 

involved sexual activity”). 

{¶48} Mr. Stuart’s first assignment of error is without merit. 

Prior Bad Acts

{¶49} In Mr. Stuart’s second assignment of error, he contends he was deprived of 

his rights to a fair trial and due process when the trial court allowed the state to introduce 

evidence of his “alleged bad acts.” 

{¶50} More specifically, the trial court allowed the state to introduce evidence of 

Mr. Stuart’s “grooming and manipulation” behaviors toward the victim. J.S. testified at 

trial that Mr. Stuart laid down in bed with her and read her stories, attempted to snuggle 

with her, showed her pornography, digitally penetrated her for several years before she 

reached the age of 13, and made inappropriate sexual comments to her. Further, the 

state’s expert on child victim sexual abuse, Ms. Daiber, the SANE nurse, explained to the 

jury that “grooming” is a term used to describe the manipulative behavior a person 

engages in to prepare the child for sexual abuse and discourage the child from disclosing 

the abuse. 

{¶51} The general principle that guides admission of evidence is that “[a]ll relevant 

evidence is admissible * * *.” Evid.R. 402. Evid.R. 403 provides exceptions to this general 

principle and provides circumstances for the exclusion of relevant evidence. 

{¶52} Another exception to the principle that all relevant evidence is admissible is 

Evid.R. 404(B), which provides: “Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in conformity 
 17 

therewith. It may, however, be admissible for other purposes, such as proof of motive, 

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

accident.” 

{¶53} “Evid.R. 404 codifies the common law with respect to evidence of other acts 

of wrongdoing. State v. Lowe, 69 Ohio St.3d 527, 530 * * * (1994). The rule contemplates 

acts that may or may not be similar to the crime at issue. State v. Broom, 40 Ohio St.3d 

277, 282 * * * (1988). If the other act is offered for some relevant purpose other than to 

show character and propensity to commit crime, such as one of the purposes in the listing, 

the other act may be admissible. Id. Another consideration permitting the admission of 

certain other-acts evidence is whether the other acts ‘form part of the immediate 

background of the alleged act which forms the foundation of the crime charged in the 

indictment’ and are ‘inextricably related’ to the crime. State v. Curry, 43 Ohio St.2d 66, 

73 * * * (1975). See also Broom at 282 * * *. 

{¶54} “‘The admission of such [other-acts] evidence lies within the broad 

discretion of the trial court, and a reviewing court should not disturb evidentiary decisions 

in the absence of an abuse of discretion that created material prejudice.’ State v. Diar,

120 Ohio St.3d 460, 2008-Ohio-6266, * * * ¶66. See also State v. Sage, 31 Ohio St.3d 

173, * * * (1987), paragraph two of the syllabus (‘The admission or exclusion of relevant 

evidence rests within the sound discretion of the trial court’).” State v. Morris, 132 Ohio 

St.3d 337, 2012-Ohio-2407, ¶11-14.

{¶55} “Evidence that an 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 inclination to commit crime, or that he acted in conformity with bad character.” State 
 18 

v. Jeffries, 8th Dist. Cuyahoga No. 105379, 2018-Ohio-162, ¶26, quoting State v. 

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶15. There are, however, exceptions that 

allow other acts of wrongdoing to be admitted. Id. at ¶23. 

{¶56} Thus, pursuant to R.C. 2945.59, “[i]n any criminal case in which the 

defendant’s motive or intent, the absence of mistake or accident on his part, or the 

defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant 

which tend to show his motive or intent, the absence of mistake or accident on his part, 

or the defendant’s scheme, plan, or system in doing the act in question may be proved, 

whether they are contemporaneous with or prior or subsequent thereto, notwithstanding 

that such proof may show or tend to show the commission of another crime by the 

defendant.” 

{¶57} Further, Evid.R. 404(B) provides that evidence of other crimes, wrongs, or 

acts is permitted to show proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or the absence of mistake or accident. 

{¶58} In deciding whether to admit other acts evidence, trial courts should conduct 

a three-step analysis: (1) consider whether the 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 (Evid.R. 401); (2) whether evidence of the 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); and (3) consider whether the probative 

value of the other acts evidence is substantially outweighed by the danger of unfair 

prejudice (Evid.R. 403). Jeffries, 2018-Ohio-162 at ¶26, citing Williams at ¶20. 
 19 

{¶59} Applying this test to the challenged testimony, we find no abuse of discretion 

by the trial court in admitting this evidence. Firstly, the other acts evidence was relevant 

because it tended to show Mr. Stuart’s plan for grooming J.S. for sexual activity. 

“‘Shaping and grooming describes the process of cultivating trust with a victim and 

gradually introducing sexual behaviors until reaching the point of intercourse.’” Id. at ¶27, 

quoting Williams at ¶21, quoting United States v. Johnson, 132 F.3d 1279, 1280 (9th 

Cir.1997), fn. 2. 

{¶60} Secondly, the testimony was elicited for a legitimate purpose under Evid.R. 

404(B), which provides that other acts evidence may be admitted to “show motive, intent, 

plan, scheme and absence of mistake.” Id. at ¶28. 

{¶61} Lastly, the probative value of the evidence was not outweighed by the 

danger of unfair prejudice. Rather than solely inflaming the jury and appealing only to its 

emotions, the evidence of Mr. Stuart’s grooming of J.S. provided a basis for the jury to 

recognize his ongoing scheme for sexual activity with J.S. Id. at ¶29. 

{¶62} We also do not find that the trial court’s failure to give a limiting instruction 

regarding the other acts evidence is plain error. Because Mr. Stuart did not request a 

limiting instruction, he has waived all but plain error. Id. at ¶30, citing State v. Perez, 124 

Ohio St.3d 122, 2009-Ohio-6179, ¶136. Nothing suggests the jury used other acts 

evidence to convict Mr. Stuart “because he was a bad person.” Id., citing Perez at ¶136. 

On cross-examination, defense counsel challenged J.S.’s credibility and testimony 

regarding Mr. Stuart’s sexual motives and actions. Moreover, Mr. Stuart testified in his 

own defense. The jury was free to judge the credibility of the witnesses. 
 20 

{¶63} We do not find the trial court abused its discretion in admitting other acts 

evidence on grooming and manipulation, nor do we find plain error on the part of the trial 

court in failing to give the jury a limiting instruction. 

{¶64} Mr. Stuart’s second assignment of error is without merit. 

Expert Witness

{¶65} In his third assignment of error, Mr. Stuart contends the trial court erred in 

allowing the state’s expert witness, Ms. Daiber, a SANE nurse, to testify. He argues that 

her testimony, per Evid.R. 702(A), did not relate to matters beyond the knowledge or 

experience possessed by lay persons or dispel a misconception common among lay 

persons, and that it, in fact, misled the jury. 

{¶66} “The determination of the admissibility of expert testimony is within the 

discretion of the trial court. Evid.R. 104(A). Such decisions will not be disturbed absent 

abuse of discretion.” State v. Cook, 11th Dist. Lake No. 2016-L-079, 2017-Ohio-7953, 

¶40, quoting Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶9. 

{¶67} At trial, the state called Diane Diaber, a registered nurse who is certified as 

a SANE examiner for adolescents, adults, and pediatrics. Ms. Diaber has over fifteenyears’ experience in the field, works exclusively in this area, and prior to obtaining her 

certification, worked for over 300 hours as a sexual assault nurse examiner as part the 

certification requirements. 

{¶68} Ms. Diaber explained grooming and manipulation behaviors that are 

common in child sexual abuse and why child victims tend to delay reporting. 

{¶69} We find no abuse of discretion in the trial court’s inclusion of Ms. Daiber’s 

testimony. Ms. Diaber was a qualified expert, pursuant to Evid.R. 702. Moreover, as we 
 21 

held in Cook, “the fact that delayed reporting by sexual assault victims is not uncommon 

is not within the knowledge of the average juror. Thus, because [the expert’s] testimony 

required ‘specialized knowledge’ it is properly characterized as expert testimony.” 

(Emphasis deleted.) Id. at ¶50, quoting State v. Solether, 6th Dist. Wood No. WD07053, 

2008-Ohio-4738, ¶65-69. See also State v. Carter, 8th Dist. Cuyahoga No. 104874, 

2018-Ohio-2238, ¶25, quoting State v. Stowers, 81 Ohio St.3d 260-262-63 (1998) (“[A]n 

expert may provide testimony that supports ‘the truth of the facts testified to by the child, 

or which assists the fact finder in assessing the child’s veracity’”); State v. Thompson, 8th 

Dist. Cuyahoga No. 99846, 2014-Ohio-1056, ¶21 (finding that a SANE nurse’s testimony 

comported with Evid.R. 702 and 703; thus the trial court did not err in allowing her to 

testify); State v. Gardner, 8th Dist. Cuyahoga No. 107573, 2019-Ohio-1780, ¶41-46 

(finding no error in admitting the testimony of a SANE nurse on “blunt force trauma” and 

that the absence of vaginal injuries is “common” in sexual assault). 

{¶70} Mr. Stuart’s third assignment of error is without merit. 

Motion to Suppress 

{¶71} In Mr. Stuart’s fourth assignment of error, he contends the trial court erred 

in denying his motion to suppress because the Mentor Police Department interview was 

in reality a custodial interrogation where he did not validly waive his Miranda rights and 

where he requested to speak with his attorney multiple times. 

{¶72} We give due deference to the trial court's assignment of weight and 

inferences drawn from the evidence when ruling on a motion to suppress on appeal. 

(Citations omitted.) State v. Starcovic, 11th Dist. Portage No. 2007-P-0081, 2008-Ohio2758, ¶10. 
 22 

{¶73} Thus, appellate review of a motion to suppress presents a mixed question 

of law and fact. (Citations omitted.) Id. at ¶11. “The appellate court must accept the trial 

court's factual findings, provided they are supported by competent, credible evidence. * * 

* Thereafter, the appellate court must independently determine whether those factual 

findings meet the requisite legal standard.” Id., quoting State v. Wilson, 11th Dist. 

Ashtabula No. 2007-A-0044, 2007-Ohio-6557, ¶12, citing State v. Burnside, 100 Ohio 

St.3d 152, 2003-Ohio-5372, ¶8. We review the trial court's application of the law de novo. 

Id., citing Wilson at ¶12. 

{¶74} “In Miranda [v. Arizona, 384 U.S. 436], at 444, * * * the United States 

Supreme Court established procedural safeguards for securing the privilege against selfincrimination guaranteed by the Fifth Amendment to the United States Constitution. The 

Fourteenth Amendment to the United States Constitution makes the privilege against selfincrimination applicable to a witness in a state proceeding.” Cleveland v. Oles, 152 Ohio 

St.3d 1, 2017-Ohio-5834, ¶8, citing Malloy v. Hogan, 378 U.S. 1, 3 (1964). “A similar 

privilege is recognized in Article I, Section 10 of the Ohio Constitution.” Id.

{¶75} “What are now commonly known as Miranda warnings are intended to 

protect a suspect from the coercive pressure present during a custodial interrogation.” Id.

at ¶9, citing Miranda at 469. “A custodial interrogation is ‘questioning initiated by law 

enforcement officers after a person has been taken into custody or otherwise deprived of 

his freedom of action in any significant way.’” Id., quoting Miranda at 444. “If a suspect 

provides responses while in custody without having first been informed of his or her 

Miranda rights, the responses may not be admitted at trial as evidence of guilt.” Id., 

quoting Miranda at 479. “Any statement, question or remark which is ‘reasonably likely 
 23 

to elicit an incriminating response’ is an interrogation.” State v. Knuckles, 65 Ohio St.3d 

494, 495 (1992), quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980). 

{¶76} A review of the trial court’s findings of fact and the hearing transcript on the 

motion to suppress reveals that Mr. Stuart was voluntarily at the police station to make a 

missing person report because J.S. did not come home after school. He willingly agreed 

to interview with the detectives. When the interview began, Detective Petro gave Mr. 

Stuart a written Miranda rights form and informed him of his rights. He asked her if he 

needed to call his attorney, and she replied it was entirely up to him. Mr. Stuart called his 

attorney and left a message when there was no answer. As he was attempting to reach 

his attorney, he began to speak to Detective Petro without any prompting and continued 

to answer her questions. 

{¶77} For the first 45 minutes of the interview (which lasted just a little over one 

hour), he spoke to the detectives willingly and freely about J.S., why she might be missing, 

and the “twenty minute” phone conversation he had with her when she called him while 

he was at the station. During that time, Mr. Stuart was able to and constantly used his 

cellphone for calls and texts. He received a phone call from his wife, exchanged text 

messages with her, and attempted to call his attorney. At no point did he assert an 

unequivocal and unambiguous request to speak with his attorney and stop the interview. 

Nothing in the actions or questioning by police gave the impression he was not free to 

leave at any time and or that he was under arrest. Indeed, he gave no indication that he 

was under the impression he was under investigation until the questioning turned to J.S.’s 

allegations. 
 24 

{¶78} After approximately 45 minutes, Detective Petro advised Mr. Stuart about 

the alleged sexual assault and that she had information he had touched J.S. in an 

inappropriate and sexual manner. Mr. Stuart replied, “I think I need my attorney.” She 

asked Mr. Stuart more questions to which Mr. Stuart stated that he loved his daughter 

and wanted his attorney. At that point, the interview stopped, Detective Petro ceased 

asking questions, and Mr. Stuart attempted to reach his attorney once more, leaving him 

another message. Detective Petro advised Mr. Stuart that if he wanted to speak further, 

she would be happy to talk to him. Detective Petro testified during the motion to suppress 

hearing that she did not decide to arrest Mr. Stuart until the end of the interview. 

{¶79} “It is well-established that Miranda warnings are required only where there 

has been such a restriction on a person's freedom as to render him in custody. Oregon 

v. Mathiason (1977), 492 U.S. 492, 494 * * *. Similarly, the Edwards rule applies only if 

the accused invokes his right to an attorney while in custody. United States v. Harris

(S.D.Ohio 1997), 961 F.Supp. 1127, 1135; Minnesota v. Murphy (1984), 465 U.S. 420, 

424, * * * at fn. 3; State v. Fry (1988), 61 Ohio App.3d 689 * * *; State v. Meyers (Sept. 

28, 2001), Allen App. No. 1–10–48, [2011-Ohio-3341]. 

{¶80} “In determining whether an individual was in custody, a court must examine 

all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply 

whether there [was] a “formal arrest or restraint on freedom of movement” of the degree 

associated with a formal arrest.’ California v. Beheler (1983), 463 U.S. 1121, 1125 * * *. 

‘Under this standard, a suspect obviously is in custody if he is formally placed under arrest 

prior to interrogation. Where the suspect has not been formally arrested, the restraint on 

the suspect's freedom of movement must be significant in order to constitute custody.’ 
 25 

State v. Staley (May 8, 2000), Madison App. No. CA99–08–019, [2000 WL 554512], at 

[*]7. 

{¶81} “While ‘[a]ny interview of one suspected of a crime by a police officer will 

have coercive aspects to it, simply by virtue of the fact that the police officer is part of a 

law enforcement system which may ultimately cause the suspect to be charged with a 

crime[,]’ a noncustodial situation is not converted into a custodial situation simply because 

questioning takes place in a police station. Mathiason, 429 U.S. at 495 * * *. Rather, the 

initial determination of whether an individual is in custody, for purposes of Miranda,

depends on the objective circumstances of the interrogation, not on the subjective views 

harbored by either the interrogating officers or the person being questioned. Stansbury 

v. California (1994), 511 U.S. 318, 323–324 * * *. 

{¶82} “Thus, ‘a police officer's subjective view that the individual under 

questioning is a suspect, if undisclosed, does not bear upon the question whether the 

individual is in custody for purposes of Miranda.’ Id. at 324 * * *. ‘An officer's knowledge 

or beliefs may bear upon the custody issue, [however], if they are conveyed, by word or 

deed, to the individual being questioned.’ Id. * * * 

{¶83} “Yet, ‘[t]hose beliefs are relevant only to the extent they would affect how a 

reasonable person in the position of the individual being questioned would gauge the 

breadth of his or her “freedom of action .” * * * Even a clear statement from an officer that 

the person under interrogation is a prime suspect is not, in itself, dispositive of the custody 

issue, for some suspects are free to come and go until the police decide to make an 

arrest.’ Id.” State v. Coleman, 12th Dist. Butler No. CA2001-10-241, 2002 WL 745322, 

*4-5 (Apr. 29, 2002). 
 26 

{¶84} The trial court found that Mr. Stuart was not in custody at the time he was 

interviewed by the Mentor detectives. Mr. Stuart was never prevented from leaving, he 

spoke freely to the detectives, and never attempted to assert his right to counsel until the 

end of the interview when the questioning turned to J.S.’s allegations. 

{¶85} Simply because Mr. Stuart was given Miranda warnings does not convert a 

noncustodial setting into a custodial interrogation. In an apposite case cited by the trial 

court, Coleman, supra, the Twelfth District Court was confronted with a similar situation 

in which Miranda warnings were given as a pretext to an interview with a suspect. The 

appellant in that case was also at the station voluntarily, spoke freely, did not express an 

unequivocal right to his attorney, was not under arrest, and was told he could leave at 

any time. Id. at *4. 

{¶86} In determining this did not convert the police investigatory interview into a 

custodial interrogation, the court aptly remarked that “[w]e are mindful that Miranda

warnings were nevertheless given to Coleman. However, the mere giving of Miranda

warnings by a law enforcement officer does not convert a noncustodial setting into a 

custodial setting. See United States v. Owens (C.A.5, 1970), 431 F.2d 349. ‘The 

precaution of giving Miranda rights in what is thought could be a non-custodial interview 

should not be deterred by interpreting the giving of such rights as a restraint on the 

suspect, converting a non-custodial interview into a custodial interrogation for Miranda

purposes.’ United States v. Lewis (C.A.6, 1977), 556 F.2d 446, 449. It follows then that 

the Edwards rule did not apply and the detectives were not required to cease the interview 

and provide Coleman with an attorney.” Id. at *5. 
 27 

{¶87} As in Coleman, we agree with the trial court that Mr. Stuart was not in 

custody or deprived of his freedom in any significant way. As a result, Miranda warnings 

were not required. Id. Therefore, his motion to suppress was properly denied. 

{¶88} Mr. Stuart’s fourth assignment of error is without merit.

Sufficiency of the Evidence 

{¶89} In Mr. Stuart’s fifth assignment of error, he argues the state failed to provide 

sufficient evidence to establish beyond a reasonable doubt all elements of the charged 

offenses because the testimony of the victim was insufficient due to her incredibility and 

untruthfulness. 

{¶90} “An appellate court's function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at trial to 

determine whether such evidence, if believed, would convince the average mind of the 

defendant's guilt beyond a reasonable doubt.” State v. Hope, 11th Dist. Trumbull No. 

2018-Ohio-0053, 2019-Ohio-2174, ¶44, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), 

paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence 

in a light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt.” Id.

{¶91} A sufficiency challenge requires this court to review the record to determine 

whether the state presented evidence on each of the elements of the offense. Id. at ¶45, 

citing State v. Muncy, 11th Dist. Ashtabula No. 2011-A-0066, 2012-Ohio-2830, ¶13. This 

test involves a question of law and does not permit us to weigh the evidence. Id., citing 

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). 
 28 

{¶92} We note at the outset that Mr. Stuart failed to identify which element of which 

conviction the state failed to prove, instead challenging the lack of corroborating and/or 

physical evidence and claiming that J.S.’s testimony alone is not sufficient. 

{¶93} Credibility is a question concerning the weight, rather than the sufficiency, 

of the evidence. (Citations omitted.) State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio2126, ¶79. Further, the testimony of one witness is sufficient if it meets all the elements 

of the crime charged. “[C]ourts have consistently held that testimony, if believed, is 

sufficient to prove each element of the offense of rape.” State v. Blankenship, 8th Dist. 

Cuyahoga No. 77900, 2001 WL 1617225, *4 (Dec. 13, 2001), citing State v. Lewis, 70 

Ohio App.3d 624, 638 (4th Dist.1990). There is no requirement that a rape victim's 

testimony be corroborated as a condition precedent to conviction. Id., citing Lewis, citing 

State v. Love, 49 Ohio App.3d 88, 91 (1st Dist.1988), and State v. Gingell, 7 Ohio App.3d 

364, 365 (1st Dist.1982). 

{¶94} With respect to sufficiency of the evidence, “‘sufficiency’ is a term of art 

meaning that legal standard which is applied to determine whether the case may go to 

the jury or whether the evidence is legally sufficient to support the jury verdict as a matter 

of law.” Thompkins at 387, quoting Black's Law Dictionary 1433 (6th Ed.1990); see also 

Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the 

evidence is insufficient to sustain a conviction). “In essence, sufficiency is a test of 

adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of 

law.” Id., citing State v. Robinson, 162 Ohio St. 486 (1955). 

{¶95} Thus, the question is not whether the victim’s testimony was credible but 

whether it was legally sufficient to sustain the jury’s verdict. A review of J.S.’s testimony 
 29 

reveals that she recounted two instances where Mr. Stuart digitally penetrated her vagina 

and another instance where he anally penetrated her with his penis and held her down 

while he did so. J.S. also testified as to Mr. Stuart’s grooming and manipulation 

behaviors, which established a pattern of conduct and fear, that consisted of forcing her 

to view pornography by holding her head, snuggling and cuddling, and making 

inappropriate and sexual comments. This testimony alone, corroborated by Detective 

Petro and the SANE nurse expert, is legally sufficient to sustain convictions of rape, 

sexual battery, kidnapping, and menacing by stalking. 

{¶96} Mr. Stuart’s fifth assignment of error is without merit. 

Manifest Weight 

{¶97} In Mr. Stuart’s sixth assignment of error, he contends his convictions are 

against the manifest weight of the evidence for the same reasons he contends the 

evidence was insufficient. Thus, he argues his conviction was not supported by 

competent, credible evidence because the victim’s testimony lacked credibility, was selfserving, and contradicted her own former versions of the events. 

{¶98} “When reviewing a claim that a judgment was against the manifest weight 

of the evidence, an appellate court must review the entire record, weigh both the evidence 

and all reasonable inferences, consider the credibility of the witnesses, and determine 

whether in resolving conflicts, the trier of fact clearly lost its way and created such a 

manifest miscarriage of justice that a new trial must be ordered.” (Citations omitted.) 

State v. Buckley, 11th Dist. Lake No. 2018-L-118, 2019-Ohio-3991, ¶61. See also 

Thompkins at 387. 
 30 

{¶99} “The discretionary power to grant a new trial should be exercised only in the 

exceptional case in which the evidence weighs heavily against a conviction. * * * The role 

of the appellate court is to engage in a limited weighing of the evidence introduced at trial 

in order to determine whether the state appropriately carried its burden of persuasion. * * 

* The reviewing court must defer to the factual findings of the trier of fact as to the weight 

to be given to the evidence and credibility of witnesses.” (Citations omitted.) Id. at ¶62. 

{¶100} As noted above, the state provided legally sufficient evidence to support Mr. 

Stuart’s convictions for rape, kidnapping, sexual battery, and menacing by stalking. The 

jury was free to believe either the testimony of the victim, the police officers, including 

Detective Petro, J.S.’s social worker from LCJFS, and the SANE expert nurse, all of whom 

defense counsel cross-examined, or the testimony of Mr. Stuart, his wife, several 

character witnesses, and a private investigator who investigated the Stuarts’ home. 

{¶101}“It is well settled that when assessing the credibility of witnesses, ‘[t]he 

choice between the credibility of witnesses and their conflicting testimony rests solely with 

the finder of fact and an appellate court may not substitute its own judgment for that of 

the finder of fact.’ * * * Furthermore, if the evidence is susceptible to more than one 

interpretation, a reviewing court must interpret it in a manner consistent with the verdict.” 

(Citations omitted.) Id. at ¶65. 

{¶102} Mr. Stuart’s sixth assignment of error is without merit. 

Speedy Trial 

{¶103}In Mr. Stuart’s final assignment of error, he contends the trial court erred in 

denying his motion to discharge for violation of his right to a speedy trial, after taking 1,564 

days to rule on his motion to suppress. 
 31 

{¶104} The Supreme Court of Ohio has stated “R.C. 2945.71 et seq., constitute a 

rational effort to enforce the constitutional right to a public speedy trial of an accused 

charged with the commission of a felony or a misdemeanor and shall be strictly enforced 

by the courts of this state.” State v. Gaston, 11th Dist. Lake No. 2017-L-109, 2018-Ohio4575, ¶29, quoting State v. Pachay, 64 Ohio St.2d 218 (1980), syllabus. “[F]or purposes 

of bringing an accused to trial, the statutory speedy trial provisions of R.C. 2945.71, et 

seq., and the constitutional guarantees found in the United States and Ohio Constitutions 

are coextensive.” Id., quoting State v. O'Brien, 34 Ohio St.3d 7, 9 (1987). 

{¶105}“A criminal defendant, however, may waive his or her constitutional right to 

a speedy trial, provided such waiver is knowingly and voluntarily made.” Id. at ¶30, citing 

Barker v. Wingo, 407 U.S. 514, 529 (1972). “Similarly, a defendant, or his or her counsel, 

may validly waive the speedy trial provisions of R.C. 2945.71, et seq.” Id., citing State v. 

McBreen, 54 Ohio St.2d 315 (1978). “It therefore follows that ‘a knowing, voluntary, 

express written waiver of an accused's statutory speedy trial rights may equate with a 

waiver of the coextensive constitutional rights, at least for the time period provided in the 

statute.’ O'Brien, supra. ‘Following an express, written waiver of unlimited duration by 

an accused of his right to a speedy trial, the accused is not entitled to a discharge for 

delay in bringing him to trial unless the accused files a formal written objection and 

demand for trial, following which the state must bring the accused to trial within a 

reasonable time.’” Id., quoting O’Brien at paragraph two of the syllabus. 

{¶106} Mr. Stuart knowingly and voluntarily filed a written waiver of his 

constitutional and statutory rights to a speedy trial, reserving only the right to challenge 

pre-arrest and pre-charges. While the state filed several motions to set a date for trial 
 32 

and/or a status conference, Mr. Stuart never formally demanded that a trial date be set, 

nor did he file a motion to withdraw his waiver. 

{¶107} Because Mr. Stuart’s written waiver was knowingly and voluntarily made 

and was of unlimited duration and he did not object and demand a trial, pursuant to 

O'Brien, the speedy trial provisions in R.C. 2945.71 et seq., do not apply. The trial court 

did not err when it concluded appellant was not entitled to discharge, pursuant to R.C. 

2945.73(B). See Gaston at ¶32. 

{¶108}“In Barker, supra, the United States Supreme Court ‘set forth a balancing 

test that considers the following factors to determine whether trial delays are reasonable 

under the Sixth and Fourteenth Amendments to the United States Constitution: “Length 

of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to 

the defendant.”’” Id. at ¶34, quoting State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 

¶38, quoting Barker at 530. 

{¶109} Construing Mr. Stuart’s motion to discharge as a formal withdrawal of his 

waiver, the trial court properly applied the Barker factors. The trial court found that the 

length of the delay was only 34 days between Mr. Stuart’s withdrawal of his speedy trial 

waiver and the date set for trial. We agree this was not prejudicial, especially in light of 

the fact that the defense indicated that it would not be prepared to defend the case by 

that date. In fact, the defense filed a motion for a continuance, which the court granted. 

{¶110} Mr. Stuart contends that he suffered prejudice because by the time the case 

was tried, the victim reached the age of majority. But Mr. Stuart fails to state how the 

victim reaching the age of majority prejudiced his case or deprived him access to 

witnesses and evidence. We agree with the state and the trial court that Mr. Stuart 
 33 

errantly relies on the time period between the motion to suppress hearing and the court’s 

subsequent denial of that motion when making this argument and that the relevant time 

period is between the filing of his motion to discharge and the date set for trial. 

{¶111} Finding the trial court properly denied Mr. Stuart’s motion to discharge 

because his speedy trial rights were not violated, Mr. Stuart’s seventh assignment of error 

is without merit. 

{¶112} Based on the foregoing, the judgment of the Lake County Court of Common 

Pleas is affirmed. 

CYNTHIA WESTCOTT RICE, J., 

THOMAS R. WRIGHT, J., 

concur.