[Cite as State v. Rodriguez, 2021-Ohio-2580.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109320 

 v. : 

 

JONATHAN RODRIGUEZ, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 29, 2021

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-19-643801-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Kelly N. Mason, Assistant Prosecuting 

Attorney, for appellee. 

Susan J. Moran, for appellant. 

EILEEN A. GALLAGHER, P.J.: 

Defendant-appellant Jonathan Rodriguez appeals his convictions for 

rape, attempted rape and two counts of gross sexual imposition as well as the 

sexually violent predator specifications attached to the rape and attempted rape 

counts. We affirm. 
Background 

Rodriguez’s four counts of conviction pertain to one victim, his 

stepdaughter, S.V. Rodriguez was found not guilty of 24 other counts of rape, gross 

sexual imposition and kidnapping pertaining to S.V., two other stepdaughters and 

his biological daughter. 

Rodriguez became involved with the children’s mother, B.S., in 

Puerto Rico in 2011 before they moved to a house on Hague Avenue in Cleveland, 

Ohio in 2012. B.S. has six children, including three with Rodriguez. 

S.V. testified that Rodriguez began sexually abusing her when she was 

12 years old in Puerto Rico and that the abuse continued after they moved to 

Cleveland. 

S.V. testified that Rodriguez entered her bedroom in the middle of the 

night when she was sleeping. Rodriguez pulled down both her pants and underwear 

and proceeded to touch and digitally penetrate her vagina with one hand, while 

touching his penis with his other. Rodriguez did these acts multiple times over the 

course of several years. Rodriguez told her he was in love with her and threatened 

that he would harm S.V., her sisters and their mother if S.V. told anybody about 

what he did to her. S.V. did not disclose this abuse to police until years later. 

Assignments of Error 

Rodriguez asserts the following five assignments of error: 

1. The trial court erred in denying appellant’s motion for acquittal 

pursuant to Crim.R. 29 when the state failed to submit sufficient 

evidence for the crimes charged, denying the appellant due process. 
2. Appellant’s convictions are against the manifest weight of the 

evidence. 

3. Appellant was denied due process and a fair and impartial trial as 

guaranteed by the 5th, 6th, and 14th Amendments of the U.S. 

Constitution and Article I § 16 of the Ohio Constitution based on 

prosecutorial misconduct. 

4. The trial court deprived the appellant the right to due process and 

right to a fair trial when it prevented the defense the ability confront 

[sic] his accusers. 

5. The trial court erred in allowing several instances of improper 

character evidence and other act evidence depriving the appellant the 

right to due process and a fair trial. 

Sufficiency of the Evidence 

In his first assignment of error, Rodriguez claims that the state 

presented insufficient evidence to sustain his convictions for attempted rape and the 

sexually violent predator specification. 

A challenge to the sufficiency of the evidence supporting a conviction 

requires a determination as to whether the state met its burden of production at 

trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41. When 

reviewing sufficiency of the evidence, an appellate court must determine “‘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.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 

N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not 

assess whether the evidence is to be believed but whether, if believed, the evidence 
admitted at trial would support a conviction beyond a reasonable doubt. State v. 

Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks at paragraph 

two of the syllabus. 

Attempted Rape 

Rodriguez was convicted of attempted rape in violation of R.C. 

2923.02 and 2907.02(A)(2). R.C. 2907.02(A)(2) provides: “[n]o person shall 

engage in sexual conduct with another when the offender purposely compels the 

other person to submit by force or threat of force.” 

R.C. 2923.02(A) provides: “[n]o person, purposely or knowingly, and 

when purpose or knowledge is sufficient culpability for the commission of an 

offense, shall engage in conduct that, if successful, would constitute or result in the 

offense.” 

Sexual conduct is defined in R.C. 2907.01(A) as: 

[V]aginal intercourse between a male and female; anal intercourse, 

fellatio, and cunnilingus between persons regardless of sex; and, 

without privilege to do so, the insertion, however slight, of any part of 

the body or any instrument, apparatus, or other object into the vaginal 

or anal opening of another. Penetration, however slight, is sufficient to 

complete vaginal or anal intercourse. 

The Ohio Supreme Court has held that a criminal attempt is an act or 

omission constituting a substantial step toward committing a crime. State v. 

Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), overruled in part on other 

grounds, State v. Downs, 51 Ohio St.2d 47, 53, 364 N.E.2d 1140 (1977). The act 

“must be strongly corroborative of the actor’s criminal purpose” in order to 
constitute a substantial step toward the act, but need not be the last proximate act 

prior to the commission of the offense. Id., at paragraph one of the syllabus. This 

standard directs attention to overt acts of the defendant that “convincingly 

demonstrate” the defendant’s firm purpose to commit the offense. Id. at 132. 

(Citations omitted.) “There must be evidence indicating purpose to commit rape 

instead of some other sex offense, such as gross sexual imposition, R.C. 2907.05, 

which requires only sexual contact.” State v. Davis, 76 Ohio St.3d 107, 114, 666 

N.E.2d 1099 (1996). 

S.V. described the attempted rape at issue here as follows: 

“(Interpreter) I remember that I was waking — I woke up, I was getting 

ready to get up, and I heard him coming out of my mother’s room and 

I heard the steps, and then he walked into the room. The door — the 

lock in my room didn’t work, so we couldn’t lock it. We could just close 

it. So that’s why I didn’t lock the door. And then he enter in the room 

and I had the comforter, I was wrapped in the comforter, and he tried 

to remove the comforter from me. I was wrapped in the comforter and 

he tried — he struggled. He wanted to take the comforter away from 

me, and I hold onto the comforter and I said no. I was crying. I was 

hysterical. I was asking him to leave the room. He said if you don’t let 

me do it, it’s going to be worse for you. And he didn’t leave, saying 

you’re going to see what’s going to happen. That’s when he left the 

room. 

Rodriguez argues that from this testimony it is impossible to conclude that he was 

attempting to rape S.V. Essentially, he argues that there is no way to conclude that 

he was attempting sexual conduct as opposed to sexual contact. We disagree. 

During her direct examination, S.V. testified in detail about other 

instances over time in which Rodriguez assaulted her: 
Q. Okay. So I want to go back. We’re talking about — we know what 

room we’re talking about now, and you said something happened in the 

middle of the night. Can you tell us what happened? 

A. (Interpreter) Yes. 

Q. Okay. What happened? 

A. (Interpreter) When I was sleeping in the room, Jonathan will walk 

into the room, and I will wake up very scared and he will just touch me 

in my parts. 

Q. Would you wake up before he touched you? 

A. (Interpreter) Because I knew that he would walk into the room at 

any time, I will hear. I was already with that in my head that will hear 

the steps in the room. And every time I heard the steps I will wake up 

very scared. 

Q. Because this wasn’t the first time that this happened, right? 

A. (Interpreter) Correct. 

Q. Okay. So you said he would come into the room and he would touch 

your parts. Can you be more specific about what he touched? 

A. (Interpreter) My vagina. 

Q. Okay. And what would he touch your vagina with? 

A. (Interpreter) He penetrated his fingers. 

* * * 

Q. So you just told us about a time you remember something happening 

in this bedroom [at your home on Hague Avenue]. Do you remember 

other times where Jonathan touched you when you were living in the 

United States? 

A. (Interpreter) Well, several times at the same house. 

Q. Okay. You said several times at the same house. 

Was it in the same room or in a different room? 
A. (Interpreter) In the same room. 

* * * 

Q. So the time we talked about yesterday, was that the first time that 

Jonathan touched you on Hague? 

A. (Interpreter) Yes. 

Q. Okay. And you told us yesterday, I think, that there were more times 

that this happened in that Hague house; is that right? 

A. (Interpreter) Yes, that’s correct, several times. 

Q. Okay. So this happened several more times. And how often did you 

tell us it would happen when you were in the Hague house? 

A. (Interpreter) Let’s say that in a month, probably two times. It didn’t 

happen that many times per month. 

From this evidence, viewed in a light most favorable to the 

prosecution, we conclude that Rodriguez’s attempted rape conviction is supported 

by sufficient evidence. In light of Rodriguez’s repeated history of entering S.V.’s 

room and digitally penetrating her, there was sufficient evidence to infer that it was 

his intention to do the same during the event described. 

Sexually Violent Predator Specifications 

Rodriguez argues that there was insufficient evidence presented to 

substantiate the sexually violent predator specifications attached to the rape and 

attempted rape counts. The core of Rodriguez’s argument is that it was improper 

for the jury to consider as evidence establishing the sexually violent predator 

specifications, any evidence presented in support of the counts for which he was 

found not guilty. 
R.C. 2971.01(H) provides: 

(1) “Sexually violent predator” means a person who, on or after January 

1, 1997, commits a sexually violent offense and is likely to engage in the 

future in one or more sexually violent offenses. 

(2) For purposes of division (H)(1) of this section, any of the following 

factors may be considered as evidence tending to indicate that there is 

a likelihood that the person will engage in the future in one or more 

sexually violent offenses: 

(a) The person has been convicted two or more times, in separate 

criminal actions, of a sexually oriented offense or a child-victim 

oriented offense. For purposes of this division, convictions that result 

from or are connected with the same act or result from offenses 

committed at the same time are one conviction, and a conviction set 

aside pursuant to law is not a conviction. 

(b) The person has a documented history from childhood, into the 

juvenile developmental years, that exhibits sexually deviant behavior. 

(c) Available information or evidence suggests that the person 

chronically commits offenses with a sexual motivation. 

(d) The person has committed one or more offenses in which the 

person has tortured or engaged in ritualistic acts with one or more 

victims. 

(e) The person has committed one or more offenses in which one or 

more victims were physically harmed to the degree that the particular 

victim’s life was in jeopardy. 

(f) Any other relevant evidence. 

“R.C. 2971.01(H)(2) provides a nonexclusive list of factors that the 

trial court ‘may’ use in determining that a defendant is likely to engage in sexually 

violent offenses in the future, and the trial court is free to consider ‘any other 

relevant evidence’ as provided in the catchall provision of R.C. 2971.01(H)(2)(f).” 

State v. Belle, 8th Dist. Cuyahoga Nos. 107046 and 107300, 2019-Ohio-787, ¶ 36, 
quoting State v. T.E.H., 10th Dist. Franklin Nos. 16AP-384, 16AP-385 and 16AP386, 2017-Ohio-4140, ¶ 72; see also State v. A.M., 8th Dist. Cuyahoga No. 106400, 

2018-Ohio-4209, ¶ 46 (“Under R.C. 2971.01(H)(1), as amended in 2005, a sexually 

violent offense in the current indictment can be the basis for a sexually violent 

predator specification.”). 

As such, the jury could permissibly consider evidence pertaining to 

counts for which Rodriguez was ultimately found not guilty in determining whether 

he was a sexually violent predator. Viewing the evidence in a light most favorable to 

the prosecution, we reject Rodriguez’s argument that there was insufficient evidence 

to support the sexually violent predator specifications. 

We overrule this assignment of error. 

Manifest Weight of the Evidence

In his second assignment of error, Rodriguez argues that his 

convictions are against the manifest weight of the evidence. 

“Weight of the evidence concerns ‘the inclination of the greater 

amount of credible evidence, offered at trial, to support one side of the issue rather 

than the other.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 

678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990). A 

manifest weight challenge attacks the credibility of the evidence presented and 

questions whether the prosecution met its burden of persuasion at trial. State v. 

Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26. It “addresses the 

evidence’s effect of inducing belief,” i.e., whether the state’s or the defendant’s 
evidence is more persuasive. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 

865 N.E.2d 1264. 

When considering an appellant’s claim that a conviction is against the 

manifest weight of the evidence, the appellate court functions as a “thirteenth juror” 

and may disagree “with the factfinder’s resolution of * * * conflicting testimony.” 

Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 

652 (1982). Evaluating a challenge to the weight of the evidence requires this court 

to review the record, weigh the evidence and reasonable inferences, consider witness 

credibility and determine whether, in resolving conflicts in the evidence, the trier of 

fact clearly lost its way and thereby created a manifest miscarriage of justice. Id. 

Reversal on the weight of the evidence is reserved for the “‘exceptional case in which 

the evidence weighs heavily against the conviction.’” Id., quoting State v. Martin, 

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

Sexually Violent Predator Specifications 

Rodriguez argues that his sexually violent predator specification 

convictions are against the manifest weight of the evidence. Rodriguez redeploys 

his sufficiency argument as a basis for concluding that the convictions are against 

the manifest weight of the evidence. He claims that, absent consideration of the 

evidence pertaining to counts for which he was found not guilty, the evidence did 

not “amount to ‘chronically’ committing offenses with a sexual motivation” as 

required by statute. He claims that there is nothing in his past suggesting he is likely 
to reoffend and that this is further supported by the presentence investigation 

report. 

Rodriguez does not identify any conflicting evidence that, in 

resolving, the jury lost its way. This is not the exceptional case in which the evidence 

weighs heavily against conviction. The sexually violent predator specifications are 

not against the manifest weight of the evidence. 

Rape, Attempted Rape and Gross Sexual Imposition 

Rodriguez asserts that his convictions for rape, attempted rape and 

gross sexual imposition “rests on the testimony of [S.V.] alone, as there was no 

physical evidence and no corroborating evidence.” Rodriguez claims that S.V.’s 

testimony is against the weight of the evidence “in light of the inconsistencies, 

motivation to be untruthful, and other errors.” 

To substantiate his claim, Rodriguez refers to portions of B.S.’s 

testimony which he claims are inconsistent with her daughter S.V.’s testimony. For 

example, B.S. testified that she had a close relationship with her children and 

believed that they confided in her. She claimed that she was always with her children 

and observed their interactions with Rodriguez and that she never observed any 

“strange” interactions. She also claimed that the allegations against Rodriguez could 

not be true in light of the fact that the house was full of people. B.S. also claimed 

that S.V.’s reason for going to Puerto Rico was not to flee Rodriguez’s abuse, but 

rather she was “already finished school” and “asked [her] to send her to Puerto Rico 

and enroll her in school.” 
Further, in support of his manifest weight claim, Rodriguez attacks 

S.V.’s credibility. He asserts that S.V.’s claims are suspect to the extent that she did 

not disclose the abuse until roughly one year after police began investigating her 

sisters’ abuse claims. He also claims that there was inconsistency in S.V.’s 

recollection of the time frame of the abuse. For example, in some places S.V. claimed 

the abuse occurred when she was between 12 and 14 years old. Elsewhere she 

claimed abuse happened when she was 15. Rodriguez also notes that at one point in 

S.V.’s testimony, she claimed that Rodriguez touched only her vagina but she also 

claimed that he touched her breast. Rodriguez also challenges S.V.’s testimony to 

the extent that she was unable to remember the exact number of times he abused 

her, claiming that her testimony “seems suspect in light of the nature of the conduct 

and the likely impact the conduct would have on a person who was allegedly being 

assaulted.” Rodriguez concludes that “[i]f this were true, it can be argued that [S.V.] 

would have had a more vivid recollection of events.” 

Regardless of whether there is some conflict between B.S.’s testimony 

and S.V.’s testimony, there is no material inconsistency as to the evidence that 

Rodriguez committed the actual crimes of conviction. See State v. Hill, 8th Dist. 

Cuyahoga No. 99819, 2014-Ohio-387, ¶ 37 (“A conviction is not against the manifest 

weight of the evidence solely because the jury heard inconsistent testimony.”). As to 

S.V.’s testimony about being a child who was sexually abused by her stepfather over 

the course of several years, the jury was free to reject any portion that was 

inconsistent, problematic or otherwise unbelievable. State v. Shutes, 8th Dist. 
Cuyahoga No. 105694, 2018-Ohio-2188, ¶ 49 (“The trier of fact may take note of any 

inconsistencies and resolve them accordingly, choosing to believe all, none, or some 

of a witness’s testimony.”). Rodriguez cannot manufacture a manifest weight of the 

evidence issue from the fact that the convictions are based solely upon S.V.’s 

testimony and are not corroborated by other evidence. See State v. Daniels, 8th 

Dist. Cuyahoga No. 92563, 2010-Ohio-899, ¶ 58 (“There is no requirement that a 

rape victim’s testimony be corroborated as a condition precedent to conviction.”); 

see also State v. Gunter, 8th Dist. Cuyahoga No. 95775, 2011-Ohio-3388, ¶ 33 (“Ohio 

courts have consistently held that a rape conviction may rest solely on the victim’s 

testimony, if believed.”). 

Here, the jury heard the testimony, including S.V.’s account, and it 

chose to believe her regarding the counts of rape, attempted rape and two counts of 

gross sexual imposition. Based on the record before us we cannot say that the trier 

of fact clearly lost its way. As such, we find the convictions are not against the 

manifest weight of the evidence. We overrule this assignment of error. 

Prosecutorial Misconduct 

In his third assignment of error, Rodriguez claims he was denied a 

fair trial because of prosecutorial misconduct. He asserts that there were three such 

instances. First, he claims it was improper for the state to argue to the jury, for 

purposes of the sexually violent predator specifications, that it should consider 

evidence of counts for which he was found not guilty. Second, he claims the state 

impermissibly revealed that Rodriguez was incarcerated during the trial. Third, 
Rodriguez claims the state impermissibly cross-examined him regarding his past 

sexual activity. 

“The test for prosecutorial misconduct is whether the remarks were 

improper and, if so, whether they prejudicially affected the accused’s substantial 

rights.” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 364, 

citing State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “The touchstone 

of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” Id., 

quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). “A 

prosecutor’s conduct during trial cannot be grounds for error unless the conduct 

deprives the defendant of a fair trial.” State v. Marshall, 8th Dist. Cuyahoga No. 

100736, 2015-Ohio-2511, ¶ 68, citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 

N.E.2d 394 (1987). “‘Given the myriad safeguards provided to assure a fair trial, and 

taking into account the reality of the human fallibility of the participants, there can 

be no such thing as an error-free, perfect trial, and * * * the Constitution does not 

guarantee such a trial.’” State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio1192, ¶ 40, quoting United States v. Hasting, 461 U.S. 499, 508-509, 103 S.Ct. 1974, 

76 L.Ed.2d 96 (1983) (emphasis deleted). 

Based on Rodriguez’s failure to object to the alleged misconduct 

during trial, we are limited in our review to plain error. See Marshall at ¶ 68. 

Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights 

may be noticed although they were not brought to the attention of the court.” The 

plain error rule is to be invoked only under “exceptional circumstances to avoid a 
manifest miscarriage of justice.” Chagrin Falls v. Ptak, 8th Dist. Cuyahoga No. 

109342, 2020-Ohio-5623, ¶ 52, citing State v. Long, 53 Ohio St.2d 91, 97, 372 

N.E.2d 804 (1987). There is no plain error where, absent the error, the outcome of 

trial clearly would have been different. Id. 

Sexually Violent Predator Specifications 

Rodriguez claims that it was misconduct for the state to argue that the 

jury should consider as evidence for the sexually violent predator specifications, 

evidence that pertained to the counts for which he was found not guilty. As 

discussed previously, it is permissible for a jury to consider “any other relevant 

evidence.” State v. Belle, 8th Dist. Cuyahoga Nos. 107046 and 107300, 2019-Ohio787, ¶ 36. This includes considering “a sexually violent offense in the current 

indictment” as the basis for a sexually violent predator specification. State v. A.M., 

8th Dist. Cuyahoga No. 106400, 2018-Ohio-4209, ¶ 46. There is no merit to this 

challenge because Rodriguez fails to demonstrate prejudice. 

Mention of Incarceration During Trial 

Rodriguez argues that it was misconduct for the prosecutor to reveal 

to the jury that he was incarcerated at the time of trial. As the basis of this claim, 

Rodriguez refers to his cross-examination as to the contents of a letter he wrote to 

the court: 

Q. And is that the letter that you wrote to the Judge on July 5th of 2019? 

A. (Interpreter) Yes. 
Q. Okay. And you wrote in this letter that when you were in jail, one of 

the corporals broke your leg. Do you remember saying that to the 

Judge? 

A. (Interpreter) No, he didn’t break my leg. I didn’t break my leg. What 

happened is that they threw me on the ground, and when he threw me 

on the ground it hurt my knee when he tried to put me in the floor. And 

also the way he threw me on the ground, he broke my tooth. 

Q. Okay. My question was, do you remember writing in the letter that 

the corporal broke your leg? 

This court has observed that verbal reference to a defendant’s jail 

status is similar to wearing prison or jail clothing to the extent that it “erodes the 

presumption of innocence.” State v. Watters, 8th Dist. Cuyahoga No. 82451, 2004-

Ohio-2405, ¶ 14, citing State v. Heckler, 4th Dist. Pickaway No. 93CA10, 1994 Ohio 

App. LEXIS 3248 (July 15, 1994). “Whether the reference is visual or verbal, the 

potential for prejudice is the same.” Id. at ¶ 15. 

However, the improprieties of a reference to a defendant’s jail status 

aside, where the question and answer do not affect the outcome of the trial, there is 

no unjust prejudice. See id. at ¶16; see also State v. Sharp, 12th Dist. Butler No. 

CA2009-09-236, 2010-Ohio-3470, ¶ 107 (“[A]ppellant’s custodial status does not 

have the same impact as wearing prison clothing throughout a trial.”); see also State 

v. Gaona, 5th Dist. Licking No. 11 CA 61, 2012-Ohio-3622, ¶ 37 (“single isolated 

comment about the presence of deputies falls well short of [defendant appearing in 

jail clothing]”); see also Chagrin Falls v. Ptak, 8th Dist. Cuyahoga No. 109342, 

2020-Ohio-5623, ¶ 55, quoting State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 

1068 (1996) (“‘[I]solated comments by a prosecutor are not to be taken out of 
context and be given their most damaging meaning,’ and we must review the 

challenged statements within the context of the entire trial.”). 

Here, Rodriguez does not demonstrate that unjust prejudice resulted 

from the prosecutor’s reference to his jail status. To the contrary, his claim is merely 

that the reference “may have influenced the jury.” 

We note that during a subsequent point in Rodriguez’s testimony 

during cross-examination, Rodriguez stated that he was incarcerated: 

Q. Okay. Are you dating anyone currently? 

A. (Interpreter) I’m not going out with anyone now because I’m in 

prison here * * *. 

There is additional indication that Rodriguez was not prejudiced by the prosecutor’s 

mention of his jail status. Although Rodriguez was found guilty of four counts, the 

jury acquitted him of the remaining 24 counts. Compare State v. Nitsche, 2016-

Ohio-3170, 66 N.E.3d 135, ¶ 95 (8th Dist.), quoting State v. Banks, 8th Dist. 

Cuyahoga, 2015-Ohio-5413, 56 N.E.3d 289, ¶ 64 (“[D]efendant was ‘unable to show 

that he was prejudiced by the trial court’s refusal to sever his offenses’ where he was 

acquitted of some charges and convicted of lesser offense in others.”). 

Past Sexual Activity 

Rodriguez argues the third instance of prosecutorial misconduct 

occurred during his cross-examination where, over objection, the state inquired into 

his past sexual activity. 

In general, and subject to specified exceptions that do not pertain to 

this case, evidence of specific instances of a defendant’s sexual activity are 
inadmissible in prosecutions for rape, in violation of R.C. 2907.02 and gross sexual 

imposition, in violation of R.C. 2907.05. State v. Jeffries, 160 Ohio St.3d 300, 2020-

Ohio-1539, 156 N.E.3d 859, ¶ 14. However, a defendant waives this statutory 

prohibition after interjecting or “opening the door” to the issue of his own prior 

sexual activity. State v. Howell, 2d Dist. Greene No. 2019-CA-7, 2020-Ohio-821, 

¶ 29, citing State v. Gauntt, 8th Dist. Cuyahoga No. 63792, 1993 Ohio App. LEXIS 

4645, 1993 WL 389470, 4 (Sept. 30, 1993). 

During Rodriguez’s direct examination, counsel elicited the following 

regarding Rodriguez’s past sexual activity: 

Q. So, Mr. [Rodriguez], I think we’ve established that you have — you 

had problems with [the victim’s mother]? 

A. (Interpreter) Yes, plenty. 

* * * 

Q. So did there come time when that friction in your relationship 

caused you to a have relationships with other people? 

A. (Interpreter) In 2016, [another woman] texted me. That was in 2016. 

I had a very friendly communication with her without her knowing, 

[the victim’s mother] knowing about it. Yes, I did sleep with her. 

Q. And what? 

A. (Interpreter) I did sleep with her. 

Q. Okay. So was there more than that person? 

* * * 

A. (Interpreter) There was another girl I just dated without anybody 

knowing, and I’m very ashamed of saying this. 

Q. Okay. Anyone else? 
A. (Interpreter) I just fooled around with three other women. I was just 

experimenting my life and my youth. 

During Rodriguez’s cross-examination, the state inquired about these 

women as well as other women with whom he had been involved. Because 

Rodriguez had previously offered evidence regarding his past sexual history, the 

state did not violate the statutory limitation regarding specific instances of his sexual 

activity with its inquiry. See Howell at ¶ 29. 

We overrule the third assignment of error. 

Impeachment Evidence 

In his fourth assignment of error, Rodriguez claims that the trial court 

made several erroneous rulings regarding his attempts to impeach witnesses on 

cross-examination. 

“It is well settled that ‘the trial court has broad discretion in the 

admission of evidence, and unless it has clearly abused its discretion and the 

defendant has been materially prejudiced thereby, an appellate court should not 

disturb the decision of the trial court.’” State v. Barnes, 94 Ohio St.3d 21, 23, 2002-

Ohio-68, 759 N.E.2d 1240, quoting State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 

904 (2001). 

Impeaching K.R. with Police Statement 

Rodriguez argues that the trial court erred by prohibiting him from 

attempting to impeach K.R. with a prior consistent statement. Rodriguez asserts 

that, pursuant to Evid.R. 801(D)(2), he should have been able to cross-examine K.R. 
with her statement to police regarding consistencies between it and her testimony 

because it constituted an admission by a party opponent. We disagree. 

We observe that Rodriguez was acquitted of all of the counts 

pertaining to K.R. As such, he fails to demonstrate any prejudice resulted from not 

being able to use K.R.’s police statement to impeach her. 

Nevertheless, K.R. was an alleged victim, not a party to the case. By 

its own terms, Evid.R. 801(D)(2) is confined to admissions by party-opponents. See 

State v. Ingram, 12th Dist. Butler No. CA2006-01-012, 2006-Ohio-4559, ¶ 8 (“[A]n 

alleged victim who testifies as a witness for the state is not a party-opponent within 

the meaning of Evid.R. 801(D)(2).”); State v. Williams, 7th Dist. Mahoning No. 09 

MA 11, 2010-Ohio-3279, ¶ 32 (“[A] victim in a criminal case is not a party-opponent 

for purposes of Evid.R. 801(D)(2).”). 

We find no abuse of discretion. 

Impeaching S.V. With Prior Inconsistent Statements 

Rodriguez argues that the trial court erred by prohibiting him from 

attempting to impeach S.V. with a prior inconsistent statement. Rodriguez does not 

provide citation to any portion of the police statement and he does not provide 

citation to the portion of S.V.’s testimony that is allegedly inconsistent. Instead, 

Rodriguez cites a portion of the trial transcript where his counsel discussed the 

statement with the court at a sidebar. After that discussion, the court concluded “it 

can’t just be a difference. It has to be a material difference.” Rodriguez’s counsel 
responded “[y]eah, that’s fine. I don’t need to impeach her with the transcript on 

that one.” 

Rodriguez asserts this was error because S.V. “used a very different 

tone” in her statement to police as compared to her testimony during direct 

examination. However, he neither claims nor cites any rule, statute or other 

authority that the court violated or otherwise demonstrates that the court abused its 

discretion. 

Rodriguez also asserts that material differences aside, he should have 

been able to question S.V. about her police statement pursuant to Evid.R. 607 and 

801. He does not, however, develop any argument in support of this assertion. 

“‘[I]t is not the duty of this Court to develop an argument in support 

of an assignment of error if one exists.’” State v. Collins, 8th Dist. Cuyahoga No. 

89668, 2008-Ohio-2363, ¶ 91, quoting State v. Franklin, 9th Dist. Summit No. 

22771, 2006-Ohio-4569, ¶ 19. “An appellate court is not obliged to construct or 

develop arguments to support an appellant’s assignment of error and ‘will not “guess 

at undeveloped claims on appeal.”’” State v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 

1056, ¶ 56 (8th Dist.). 

Impeachment by Omission 

Rodriguez claims he was prejudiced by the court prohibiting him 

from cross-examining witnesses with prior statements “utilizing impeachment by 

omission.” 
During trial, Rodriguez sought to impeach witnesses by comparing 

specific details included in their trial testimony that they did not mention when 

interviewed by police. 

This court has observed that a witness’ testimony at trial that includes 

details that were not included in a police interview does not necessarily constitute a 

material inconsistency. See, e.g., State v. Hartford, 21 Ohio App.3d 29, 31, 486 

N.E.2d 131 (8th Dist.1984). “‘Certain details related to the police may naturally not 

be brought up on direct examination and some details omitted from a witness 

statement may naturally crop up for the first time at trial, and it is not appropriate 

to consider the omission of such details to be “inconsistencies.”’” State v. Kenney, 

8th Dist. Cuyahoga No. 80653, 2004-Ohio-972, ¶ 9, quoting State v. Hartford, 21 

Ohio App.3d 29, 31, 486 N.E.2d 131 (8th Dist.1984). 

Here, Rodriguez argues that he should have been able to impeach S.V. 

to the extent that she testified that she went back to Puerto Rico to escape 

Rodriguez’s abuse but failed to indicate that to the police during her interview. He 

also claims that he should have been able to impeach one of the stepsisters to the 

extent that she testified as to her awareness of her sisters being abused by Rodriguez 

but failed to disclose this to police during her interview. 

Rodriguez argues that this case is similar to State v. Blackman, 8th 

Dist. Cuyahoga No. 88608, 2007-Ohio-4168. In Blackman, this court found no 

error in the state cross-examining the defendant regarding omissions from a written 

statement he prepared and gave to police: 
By giving the police a written statement, appellant left himself open to 

impeachment on any matters of importance that were omitted from 

that statement. On cross-examination, he admitted that he did not 

inform the police that the victim had repeatedly tried to contact him 

after he moved out of her mother’s house. This is the sort of significant 

detail which would have been natural to mention in the prior 

statement, and hence was subject to impeachment because of its 

omission. 

Id., at ¶ 22. 

We find that Blackman is distinguishable. Initially, we note that S.V. 

and A.R. were children who claimed to be victims of sexual assault, not defendants 

in a criminal prosecution. They did not give the police a written statement. Instead, 

the girls were asked questions by the police. Moreover, the police did not specifically 

ask S.V. if Rodriguez’s abuse was the reason she went to Puerto Rico and they did 

not ask A.R. whether she was aware her sisters were being abused by him. 

Rodriguez additionally makes the unsupported assertion that Evid.R. 

613(C) provides for “[i]mpeachment by omission.” Evid.R. 613(C) provides: 

During examination of a witness, conduct of the witness inconsistent 

with the witness’s testimony may be shown to impeach. If offered for 

the sole purpose of impeaching the witness’s testimony, extrinsic 

evidence of the prior inconsistent conduct is admissible under the same 

circumstances as provided for prior inconsistent statements by Evid.R. 

613(B)(2). 

Assuming for the moment that Evid.R. 613(C) does apply here, we 

nevertheless reject Rodriguez’s assertion to the extent that the girls’ testimony 

during trial is not inconsistent with answers they did not give to questions they were 

not asked. 

We find no abuse of discretion. 
Rule of Completeness 

Rodriguez claims that the trial court violated Evid.R. 106 during the 

following sidebar with counsel during the detective’s cross-examination: 

[Prosecutor]: Judge, just a heads up for the court reporter, based on 

where the cross-examination goes, I may ask to play the full statements 

of the girls on redirect. 

The Court: That’s the other thing is that when you introduce portions 

of witness statements, the rule of completion allows the entire one to 

come in. 

[Counsel]: I understand. I do understand. 

Evid.R. 106 provides: 

When a writing or recorded statement or part thereof is introduced by 

a party, an adverse party may require the introduction at that time of 

any other part or any other writing or recorded statement which is 

otherwise admissible and which ought in fairness to be considered 

contemporaneously with it. 

“The overriding purpose of the rule is to prevent adverse parties from taking 

statements or writings out of context and distorting them.” Perry v. Univ. Hosps., 

8th Dist. Cuyahoga No. 83034, 2004-Ohio-4098, ¶ 57; State v. Barna, 9th Dist. 

Lorain No. 93CA005564, 1993 Ohio App. LEXIS 5345 (Nov. 3, 1993). 

Here, although Rodriguez proceeded to cross-examine the detective, 

making specific reference to the girl’s statements to police, the state did not 

subsequently seek to introduce additional portions of those statements. As such, the 

court never determined whether any such portion was admissible under Evid.R. 106 

and thus, did not violate the rule. We find no abuse of discretion. 

Accordingly, we overrule the fourth assignment of error. 
Improper Character and Other Acts Evidence 

In his fifth assignment of error, Rodriguez argues that the state 

improperly presented instances of character and other acts evidence by introducing 

evidence of his domestic violence convictions as well as evidence from his social 

media accounts. 

Domestic Violence 

Rodriguez argues that the trial court erred by permitting a detective 

to testify regarding two incidents of domestic violence involving the appellant and 

the girl’s mother, B.S. He claims it was also error for the trial court to permit B.S. to 

testify that Rodriguez physically abused her and pointed a gun at her as well as to 

allow the state to introduce a photograph of their house showing a bullet hole in the 

ceiling. 

However, during B.S.’s cross-examination, Rodriguez’s counsel 

engaged in the following line of questioning regarding their relationship: 

Q. So, ma’am, you were with [Rodriguez] for I believe eight years; is 

that right? 

A. (Interpreter) Yes. 

Q. And during those eight years, would it be fair to say that you had 

basically a husband and wife relationship with [Rodriguez]? 

A. (Interpreter) Yes. 

Q. You had good times and you had bad times? 

A. (Interpreter) Yes. 

Q. You went out at times with him? 
A. (Interpreter) Yes. 

Q. Did you all make love? 

[Prosecutor]: Objection. 

The Court: Sidebar. 

By eliciting testimony from B.S. regarding Rodriguez’s character as a 

romantic partner, he gave the state the opportunity to rebut that testimony. Evid.R. 

404(A)(1) (“Evidence of a pertinent trait of character offered by an accused, or by 

the prosecution to rebut the same is admissible * * *.); see also State v. Garcia, 8th 

Dist. Cuyahoga No. 102546, 2016-Ohio-585, ¶ 69 (“Because the defense opened the 

door and placed [defendant’s] character at issue, the state was entitled to rebut that 

testimony * * *.”). 

We find no abuse of discretion. 

Other Police Interactions 

Rodriguez next claims that the state improperly questioned him 

regarding two specific incidents with police. 

Prior to the state’s questioning regarding the incidents, Rodriguez 

was asked, during direct examination, whether he had “been in trouble before” the 

domestic violence incidents with B.S. 

Rodriguez testified that “I had some conflict in 2013, 2014 * * * but it 

wasn’t anything all that serious.” He then proceeded to describe an altercation that 

occurred while driving in a car. Rodriguez explained that “someone came and tried 

to side swipe us just out of spite.” He explained that he was carrying a firearm and 
that the other driver “pulled out a weapon.” In response “I had the idea of pulling 

out this badge that was in my friend’s car, and I showed it to them so we wouldn’t 

have any more trouble.” Rodriguez further explained that the badge was “just like a 

children’s toy, that’s all it was.” 

Rodriguez’s counsel then asked him whether he had “any other 

trouble with the police other than traffic violations.” In response, Rodriguez 

detailed a shoplifting incident involving B.S. and himself. He did not discuss any 

other incident. 

During Rodriguez’s cross-examination, he agreed that he 

characterized his interactions with police as “a little conflict, not all that serious.” 

The state then inquired about an incident at U.S. Cotton after his employment there 

had been terminated. The prosecutor inquired whether Rodriguez threatened to 

“shoot anyone who tried to have [him] removed,” whether “it took police two and a 

half hours to clear out the 250 employees while they searched for you” and whether 

he considered that conduct “serious.” 

The state also inquired into the circumstances surrounding the 

incident where Rodriguez brandished a “police” badge and Rodriguez admitted that 

he was pretending to be a police officer. 

There are two methods of impeachment by contradiction — selfcontradiction under Evid.R. 613 and specific contradiction pursuant to 

Evid.R. 616. Pursuant to Evid.R. 613(C), prior inconsistent conduct, the 

rule allows that “[d]uring examination of a witness, conduct of the 

witness inconsistent with the witness’s testimony may be shown to 

impeach.” Under Evid.R. 616(C), specific contradiction, “facts 

contradicting a witness’s testimony may be shown for the purpose of 
impeaching the witness’s testimony.” Under both of these rules, 

limitations exist on the use of extrinsic evidence when the facts or 

conduct are offered solely for impeaching a witness’s testimony. 

State v. Serrano, 2016-Ohio-4691, 69 N.E.3d 87, ¶ 36 (8th Dist.). 

Accordingly, we find the state’s questions were not improper. The 

state merely inquired as to inconsistencies; it did not seek to introduce extrinsic 

evidence. 

We find no abuse of discretion. 

Social Media 

Rodriguez argues the trial court impermissibly permitted the state to 

introduce evidence of his social media postings including images of women as well 

as a video depicting him with firearms. 

Images 

During direct examination, Rodriguez introduced several 

photographs that he had posted to social media depicting him with his children, 

stepchildren and their mother. He discussed how family members “liked” or “loved” 

these photographs. 

During cross-examination, the state introduced different social media 

postings made by Rodriguez, including those of women posing in bikinis and 

lingerie. 

Evid.R. 404(A)(1) provides: 

Evidence of a pertinent trait of character offered by an accused, or by 

the prosecution to rebut the same is admissible * * *. 
Rodriguez was certainly permitted to offer evidence of his good character and as a 

family man which he did by introducing photographs of himself with his family. 

Evid.R. 404(A)(1) also permits the state to offer evidence to rebut that claim which 

it did by introducing Rodriguez’s postings of scantily clad women. 

We cannot conclude that the court abused its discretion by permitting 

the state to cross-examine Rodriguez regarding these images. 

Video 

During direct examination, Rodriguez testified that he purchased one 

firearm and that it was the only firearm that he had ever owned. During crossexamination, however, the state introduced one of Rodriguez’s music videos 

featuring images of Rodriguez with multiple firearms wearing what appeared to be 

a clown mask. The state argued that it was admissible as “bad character evidence” 

because Rodriguez brought his own character into question by introducing the social 

media photos of himself with his family “portraying him as a good person who 

wouldn’t do these sorts of things that he’s accused of.” The court allowed the video 

into evidence because one of Rodriguez’s children testified that he was “a clown” and 

because some of the photographs of Rodriguez with various firearms appeared to 

depict “inside what looked to be a residence.” 

Rodriguez argues that the court violated Evid.R. 608 when it 

admitted the video depicting him with the firearms. In relevant part, Evid.R. 608(B) 

provides: 
Specific instances of the conduct of a witness, for the purpose of 

attacking or supporting the witness’s character for truthfulness, other 

than conviction of crime as provided in Evid.R. 609, may not be proved 

by extrinsic evidence. They may, however, in the discretion of the 

court, if clearly probative of truthfulness or untruthfulness, be inquired 

into on cross-examination of the witness (1) concerning the witness’s 

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

character for truthfulness or untruthfulness of another witness as to 

which character the witness being cross-examined has testified. 

The state argues that the video was admissible as a specific 

contradiction pursuant to Evid.R. 616(C). Evid.R. 616(C) permits the introduction 

of a testifying witness’ conduct that is inconsistent with the witness’ testimony for 

purposes of impeachment. Evid.R. 616(C) limits the use of extrinsic evidence of 

contradiction offered for the sole purpose of impeaching a witness’ testimony, 

making such evidence inadmissible unless the evidence is one of the following: 

(1) Permitted by Evid.R. 608(A), 609, 613, 616(A), 616(B), or 706; 

(2) Permitted by the common law of impeachment and not in conflict 

with the Rules of Evidence. 

Relevant to this case, the video was admissible pursuant to Evid.R. 

616(A) which provides that “[b]ias, prejudice, interest, or any motive to 

misrepresent may be shown to impeach the witness either by examination of the 

witness or by extrinsic evidence.” 

Even assuming that it was error for the court to admit the video, any 

resulting prejudice is harmless. There was no dispute that Rodriguez is a musician 

and that images with firearms were part of a music video. As such, the mere 

depiction of him holding different guns than the one he claimed to own does not 

establish ownership. 
We cannot say that the trial court abused its discretion by allowing 

the video into evidence. 

We overrule the fifth assignment of error. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry out this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending is terminated. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 ___ 

EILEEN A. GALLAGHER, PRESIDING JUDGE 

MARY EILEEN KILBANE, J., and 

EILEEN T. GALLAGHER, J., CONCUR