[Cite as State v. Wolters, 2022-Ohio-538.]

COURT OF APPEALS 

GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO JUDGES: 

 Hon. Earle E. Wise, Jr., P.J. 

 Plaintiff-Appellee Hon. William B. Hoffman, J. 

 Hon. John W. Wise, J. 

-vs- 

 Case No. 21CA000008 

RONALD WOLTERS 

 

 Defendant-Appellant O P I N I O N 

 

CHARACTER OF PROCEEDINGS: Appeal from the Guernsey County Court

of Common Pleas, Case No. 20-CR-64 

 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT ENTRY: February 24, 2022 

 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant

 

JASON R. FARLEY MARK E. KAIDO 

Assistant Guernsey County Prosecutor Gottlieb, Johnson, Beam & 

627 Wheeling Avenue Dal Ponte, LLC – Attorneys at Law 

Cambridge, Ohio 43725 320 Main Street

 P.O. Box 190 

 Zanesville, Ohio 43701 

 
Guernsey County, Case No. 21CA000008 2 

Hoffman, J. 

{¶1} Defendant-appellant Ronald L. Wolters appeals the judgment entered by 

the Guernsey County Common Pleas Court convicting him of three counts of rape (R.C. 

2907.02(A)(1)(b)) and eight counts of gross sexual imposition (R.C. 2907.05(A)(4)) and 

sentencing him to an aggregate term of incarceration of life imprisonment with parole 

eligibility after seventy-five years. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Appellant is the step-grandfather of the five-year-old victim in this case. 

Appellant and his wife sometimes provided childcare for the victim, and the victim called 

them “nana” and “pap pap.” The victim had her own room in Appellant’s home. The 

victim’s mother did not have a driver’s license, and Appellant and his wife often provided 

transportation for the victim and her mother. 

{¶3} During the summer of 2019, the victim returned home from spending the 

weekend at Appellant’s house. When her mother asked how the weekend went, the 

victim did not answer. The next day, the victim told her mother Appellant “put his wee 

wee in her cookie.” Tr. 730. The victim’s mother called their family doctor, and was 

instructed to take the victim to Nationwide Children’s Hospital in Columbus for an 

examination. The victim’s mother failed to do so, lacking transportation other than 

Appellant and his wife. 

{¶4} After the disclosure of sexual activity with Appellant, the victim’s mother 

began noticing the victim touching her vaginal area on top of her clothes. About six weeks 

after the victim disclosed the incident to her mother, the victim was both physically 

examined and interviewed at the Guernsey County Children’s Advocacy Center. 
Guernsey County, Case No. 21CA000008 3 

{¶5} The victim was interviewed by Kristine Myers. The victim told Myers she 

did not want Appellant to get beat up in jail. When asked if anyone had touched her 

private parts, the victim said pap pap has touched her “cootie,” pointing to her vaginal 

area. The victim told Myers she plays “tinkle man” with Appellant when they are having 

sex. The victim said Appellant’s “tinkle” is his arm or hand, which he puts on her back 

when they have sex. The victim stated Appellant touched her vagina with his finger, on 

the inside. She also stated Appellant touched the inside of her vagina with his penis. 

She stated she did not have on any clothes when Appellant touched her vagina. When 

asked how many times Appellant had sex with her, the victim held her hands about 

shoulder distance apart, without stating a number. The victim said they had sex “a lot” of 

times. The victim stated Appellant had sex with her in her room at his house, and also in 

nana’s room. She stated Appellant had his shirt on but not his pants. He would lay down 

on the bed, and she would get on top. Appellant then had “ejections” on his leg. In 

addition to touching her, Appellant had the victim rub his penis. She and Appellant would 

watch television, then have more sex. 

{¶6} Because the victim did not tell Myers how many times they had sex, Myers 

counted out ten colored pencils and asked the victim to use the pencils to count out how 

many times she and Appellant had sex. The victim counted out eight colored pencils. 

Myers testified at trial if she could do the interview over again, she would not have 

introduced the pencils because the victim had already established it happened more than 

one time, and Myers was unsure what would have happened had she laid out thirty 

pencils instead of ten pencils. 
Guernsey County, Case No. 21CA000008 4 

{¶7} Elisha Clark, a nurse practitioner at the Children’s Advocacy Center, 

conducted a physical examination of the victim. The victim told Clark she was there 

because Appellant put his fingers and “pee pee” in her “cookie” at least eight different 

times, and grabbed her butt several times. Clark found three notches, or partial tears, on 

the victim’s hymen. Using the face of a clock for reference, the notches were found at 

4:00, 6:00 and 9:00. Any notches located between 3:00 and 9:00 can be indicative of 

sexual abuse. Further, the victim experienced urinary incontinence during the exam 

despite having used the restroom before the exam. The victim stated this had been 

happening since pap pap put his wee wee in her cookie. 

{¶8} Appellant was indicted by the Guernsey County Grand Jury on eight counts 

of rape and eight counts of gross sexual imposition on February 26, 2020. A warrant was 

issued for his arrest. Lt. Sam Williams made contact with Appellant by telephone on 

February 27, 2020. Appellant indicated he would turn himself in the next day, Friday, 

February 28, 2020. Appellant did not turn himself in. Lt. Williams went to Appellant’s 

home on Monday. Appellant was not home, but Appellant’s wife indicated they were 

aware of the warrant and she had spoke to Appellant. Appellant turned himself in on 

March 5, 2020. 

{¶9} While in jail, Appellant made several phone calls, which were recorded. 

Appellant asked his wife to talk to the victim, and to ask her (1) did this happen every 

time, and (2) did grandpa ever hurt you. Appellant told his wife the charges included eight 

counts of something which never happened and seven counts which were overcharged. 

In a second call to his wife, Appellant asked her to find out if the victim was saying it 

happened all those times or if it was the prosecutor, because if it was the prosecutor, 
Guernsey County, Case No. 21CA000008 5 

fourteen of the sixteen counts would have to be dropped. In another phone call to his 

aunt, Appellant stated fourteen of the charges did not happen. 

{¶10} The case proceeded to jury trial in the Guernsey County Common Pleas 

Court. Prior to trial, the trial court held an in camera hearing and found the victim 

competent to testify at trial. The trial court allowed the victim to testify via closed circuit 

television. The victim testified at trial Appellant put his penis in her vagina one time, when 

she was five years old. She testified Appellant unbuttoned his pants, and his penis came 

out of his pants. She tried to get away, but he put up a baby gate to stop her. The victim 

testified he threw her on the bed, pushed her shins down with his knees, and pressed his 

body down on top of her. She testified she told him to stop. 

{¶11} The jury found Appellant guilty of three of the eight rape charges, and of all 

eight charges of gross sexual imposition. The trial court sentenced Appellant to a term 

of life imprisonment with parole eligibility in 25 years for each of the three counts of rape, 

to be served consecutively. The trial court sentenced Appellant to sixty months 

incarceration for each conviction of gross sexual imposition, to be served concurrently to 

each other and concurrently to the rape sentences, for an aggregate term of incarceration 

of life with parole eligibility in 75 years. 

{¶12} It is from the April 8, 2021 judgment of the trial court Appellant prosecutes 

this appeal, assigning as error: 

 I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S THREE 

CRIM. R. 29 MOTIONS FOR A JUDGMENT OF ACQUITTAL, SINCE THE 
Guernsey County, Case No. 21CA000008 6 

STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO PROVE EACH 

CHARGE BEYOND A REASONABLE DOUBT. 

 II. THE TRIAL COURT ERRED IN FINDING THE APPELLANT 

GUILTY OF THREE COUNTS OF RAPE AND EIGHT COUNTS OF 

GROSS SEXUAL IMPOSITION, BECAUSE THE JURY’S VERDICT WAS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE 

EVIDENCE WAS INSUFFICIENT. 

 III. THE TRIAL COURT ABUSED ITS DISCRETION BY 

DETERMINING THAT N.H. WAS COMPETENT TO GIVE TESTIMONY AT 

TRIAL. 

 IV. THE TRIAL COURT VIOLATED MR. WOLTERS’ RIGHT TO 

CONFRONTATION BY PERMITTING N.H. TO TESTIFY VIA CLOSED 

CIRCUIT VIDEO WHERE THE REQUIREMENTS UNDER ORC § 

2945.481(E) WERE NOT SUPPORTED BY COMPETENT AND 

CREDIBLE EVIDENCE. 

 V. THE TRIAL COURT ABUSED ITS DISCRETION AND 

PREJUDICED MR. WOLTERS BY GIVING AN IMPROPER 

CONSCIOUSNESS OF GUILT JURY INSTRUCTION OVER THE 

DEFENSE’S OBJECTION. 

I., II. 

{¶13} We address Appellant’s first and second assignments of error together, as 

they raise related issues of whether the judgment convicting Appellant of three counts of 
Guernsey County, Case No. 21CA000008 7 

rape and eight counts of gross sexual imposition is against the manifest weight and 

sufficiency of the evidence. Appellant argues the victim’s testimony was contradictory and 

not credible, and the evidence to support all but a single count of rape was insufficient, 

and also against the weight of the evidence. 

{¶14} We note at the outset the State did not provide this Court with a statement 

of facts in its brief, and further responded to Appellant’s argument without citing to facts 

in the record, instead arguing in conclusory fashion the judgment is not against the 

manifest weight or sufficiency of the evidence.1

{¶15} In determining whether a verdict is against the manifest weight of the 

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, 

weighs the evidence and all reasonable inferences, considers the credibility of witnesses, 

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and 

created such a manifest miscarriage of justice that the conviction must be reversed and 

a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). 

{¶16} An appellate court's function when reviewing the sufficiency of the evidence 

is to 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. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, 

paragraph two of the syllabus (1991). 

1 As the assigned writer of this opinion, I find Appellee’s response of little, if any, value in analyzing 

Appellant’s first and second assignments of error. 
Guernsey County, Case No. 21CA000008 8 

{¶17} Appellant was convicted of three counts of rape in violation of R.C. 

2907.02(A)(1)(b): 

 (A)(1) No person shall engage in sexual conduct with another who is 

not the spouse of the offender or who is the spouse of the offender but is 

living separate and apart from the offender, when any of the following 

applies: 

 (b) The other person is less than thirteen years of age, whether or 

not the offender knows the age of the other person. 

{¶18} “Sexual conduct” is defined by R.C. 2907.01(A): 

 “Sexual conduct” means vaginal 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. 

{¶19} At trial, the victim testified to only one incident in which Appellant engaged 

in vaginal intercourse with her. However, the forensic interview of the victim was 

recorded, and the video was played for the jury and admitted into evidence at trial. During 

the interview, the victim stated Appellant touched her vagina with her finger, on the inside. 
Guernsey County, Case No. 21CA000008 9 

She also stated Appellant touched the inside of her vagina with his penis. When asked 

how many times Appellant had sex with her, the victim held her hands about shoulder 

distance apart, without stating a number. She said they had sex “a lot” of times.2 The 

victim stated Appellant had sex with her in her room at his house, and also in nana’s 

room. She stated Appellant had his shirt on but not his pants. He would lay down on the 

bed, and she would get on top. Appellant then had “ejections” on his leg. She and 

Appellant would watch television, then have more sex. 

{¶20} While the jury may take note of inconsistencies and resolve or discount 

them accordingly, such inconsistencies alone do not render a conviction against the 

manifest weight or sufficiency of the evidence. State v. Craig, 10th Dist. Franklin App. 

No. 99AP-739, 2000 WL 297252, (Mar. 23, 2000) *3, quoting State v. Nivens, 10th Dist. 

Franklin App. No. 95APA09-1236, 1996 WL 284714, (May 28, 1996). In a case involving 

inconsistencies in the testimony of a seven-year-old child victim, this Court noted, “The 

jury was free to use their life experiences in assessing the testimony of a child verses an 

adult and draw its conclusion.” State v. Allen, 5th Dist. Stark No. 2021CA00051, 2022-

Ohio-268, ¶ 31. We therefore find inconsistencies in the five-year-old child victim’s 

statements regarding the sexual conduct does not render the judgment against the 

manifest weight or sufficiency of the evidence. 

{¶21} Further, although not conclusive of sexual abuse, there was physical 

evidence which corroborated the jury’s finding of guilt on three counts of rape. Elisha 

Clark, a nurse practitioner at the Children’s Advocacy Center, conducted a physical 

examination of the victim. Clark found three notches, or partial tears, on the victim’s 

2 The victim’s statement they had sex a lot of times does not distinguish whether the sex involved was 

sexual conduct or sexual contact. 
Guernsey County, Case No. 21CA000008 10 

hymen. Using the face of a clock for reference, she testified the notches were found at 

4:00, 6:00 and 9:00. She testified any notches located between 3:00 and 9:00 can be 

indicative of sexual abuse. Further, the victim experienced urinary incontinence during 

the exam despite having used the restroom before the exam. The victim stated this had 

been happening since pap pap put his wee wee in her cookie. Although Appellant 

presented expert testimony to challenge Clark’s findings, we find there was sufficient 

evidence from the victim’s statements made in her forensic interview and the physical 

findings by Clark to support the convictions of three counts of rape. Further, we find the 

jury did not lose its way in convicting Appellant of three counts of rape. The judgment 

convicting Appellant of three counts of rape is supported by sufficient evidence, and is 

not against the manifest weight of the evidence. 

{¶22} Appellant was also convicted of eight counts of gross sexual imposition in 

violation of R.C. 2907.05(A)(4): 

 (A)No person shall have sexual contact with another, not the spouse 

of the offender; cause another, not the spouse of the offender, to have 

sexual contact with the offender; or cause two or more other persons to 

have sexual contact when any of the following applies: 

 (4) The other person, or one of the other persons, is less than thirteen 

years of age, whether or not the offender knows the age of that person. 

{¶23} “Sexual contact” is defined by R.C. 2907.01(B): 
Guernsey County, Case No. 21CA000008 11 

 “Sexual contact” means any touching of an erogenous zone of 

another, including without limitation the thigh, genitals, buttock, pubic 

region, or, if the person is a female, a breast, for the purpose of sexually 

arousing or gratifying either person. 

{¶24} During the forensic interview, the victim did not tell Myers how many times 

she and Appellant had sex, but rather used the general term “a lot” and held her hands 

about shoulder width apart when asked how many times the sexual abuse occurred. 

Myers counted out ten colored pencils and asked the victim to use the pencils to count 

out how many times she and Appellant had sex without differentiating between the 

number of occasions when sexual conduct versus sexual contact occurred. The victim 

counted out eight colored pencils. The victim also told Clark she was at the Child 

Advocacy Center because Appellant put his fingers and penis in her vagina at least eight 

times. Myers testified at trial if she could do the interview over again, she would not have 

introduced the pencils because the victim had already established it happened more than 

one time, and Myers was unsure what would have happened had she laid out thirty 

pencils instead of ten pencils. However, we find the victim’s statement it happened eight 

times is sufficient evidence, if believed by the jury, to support the convictions of eight 

counts of gross sexual imposition. 

{¶25} The jury appears to have rejected the number of “eight times,” as produced 

by the colored pencils and the victim’s statement to Clark, in its deliberations as to rape, 

convicting Appellant of three counts while acquitting him of five. However, although the 

victim did not differentiate between sexual conduct and sexual contact when she stated 
Guernsey County, Case No. 21CA000008 12 

she and Appellant had sex “a lot” of times, or when she stated they had sex eight different 

times, the jury could conclude based on her statements Appellant engaged in sexual 

contact with the victim eight times, while he only engaged in sexual conduct with the victim 

three times, as supported by the physical evidence in the case. 

{¶26} The victim testified to numerous separate acts which would constitute 

sexual contact but not sexual conduct. The victim stated Appellant touched her butt 

“several times.” We recognize the victim did not specifically clarify whether these 

touchings were separate in time and distinct from the three rape convictions. The victim 

also stated in her interview Appellant had her touch his penis, though again not indicating 

whether this touching was separate in time and distinct from the other incidents of sexual 

contact. In addition, Appellant stated in his phone call to his wife from the jail the charges 

included seven counts which were overcharged. The jury could draw the conclusion from 

this statement Appellant believed seven of the rape charges were overcharged, but 

impliedly admitted to engaging in sexual contact with the victim on at least seven 

additional occasions. We therefore find the jury’s verdict was not against the manifest 

weight of the evidence as to eight counts of gross sexual imposition. 

{¶27} The first assignment and second assignments of error are overruled. 

III. 

{¶28} In his third assignment of error, Appellant argues the trial court erred in 

finding the victim competent to testify at trial. 

{¶29} Every person is competent to be a witness except those of unsound mind, 

and children under ten years of age who appear incapable of receiving just impressions 

of the facts respecting which they are examined, or of relating them truly. Evid.R. 601(A). 
Guernsey County, Case No. 21CA000008 13 

{¶30} In determining whether a child under the age of ten is competent to testify, 

the trial court must consider: (1) the child's ability to receive accurate impressions of fact 

or to observe acts about which he or she will testify, (2) the child's ability to recollect those 

impressions or observations, (3) the child's ability to communicate what was observed, 

(4) the child's understanding of truth and falsity, and (5) the child's appreciation of his or 

her responsibility to be truthful. State v. Frazier, 61 Ohio St.3d 247, 574 N.E.2d 483 

(1991). To reverse a finding of competency, we must find the trial court abused its 

discretion. State v. Lewis, 4 Ohio App.3d 275, 448 N.E.2d 487 (3rd Dist. 1982). 

{¶31} The transcript of the in camera competency hearing was filed under seal 

with this Court. Upon review of the transcript, we find the child victim demonstrated an 

ability to receive accurate impressions of fact, was able to recollect impressions or 

observations, could communicate what was observed, understood truth and falsity, and 

appreciated her responsibility to be truthful. The trial court did not abuse its discretion in 

finding her competent to testify. 

{¶32} Appellant further argues her inconsistent and contradictory testimony at trial 

demonstrates she was not competent to testify. 

{¶33} In State v. Jones, 12th Dist. Brown No. CA2000-11-032, 2001 WL 1402638 

at *6, our brethren in the Twelfth District noted: 

 [I]t is not the role of the trial judge to determine that everything a child 

will testify to is accurate, but whether the child has the intellectual capacity 

to accurately and truthfully recount events. State v. Leach (Feb. 20, 2001), 

Clermont CA2000-05-033, unreported, at 5. Any inconsistencies between 
Guernsey County, Case No. 21CA000008 14 

[a child's] trial testimony and the testimony of other witnesses relate to [the 

child's] credibility, not [their] competency. See id.; State v. Rayburn (Apr. 

24, 2000), Clinton CA99-03-005, unreported, at 6. [The child's] credibility 

was for the jury's consideration. 

{¶34} We agree with the reasoning of the Twelfth District, and find any 

inconsistencies and contradictions in the victim’s testimony went to her credibility, not to 

her competency. 

{¶35} The third assignment of error is overruled. 

IV. 

{¶36} In his fourth assignment of error, Appellant argues the trial court erred and 

denied his right to confront witnesses against him by allowing the victim to testify via 

closed circuit television pursuant to R.C. 2945.481(E), which provides: 

 (E) For purposes of divisions (C) and (D) of this section, a judge may 

order the testimony of a child victim to be taken outside the room in which 

the proceeding is being conducted if the judge determines that the child 

victim is unavailable to testify in the room in the physical presence of the 

defendant due to one or more of the following: 

 (1) The persistent refusal of the child victim to testify despite judicial 

requests to do so; 
Guernsey County, Case No. 21CA000008 15 

 (2) The inability of the child victim to communicate about the alleged 

violation or offense because of extreme fear, failure of memory, or another 

similar reason; 

 (3) The substantial likelihood that the child victim will suffer serious 

emotional trauma from so testifying. 

{¶37} The Ohio Supreme Court has held testimony of a child victim by videotaped 

deposition does not violate the Confrontation Clause, as long as the defendant has an 

opportunity to view the child and the child's demeanor, and has a full opportunity to crossexamine the child. State v. Self, 56 Ohio St. 3d 73, 77, 564 N.E.2d 446 (1990). We find 

the procedure employed in the instant case similarly did not violate the Confrontation 

Clause, as Appellant was able to see the victim’s demeanor, and his counsel had a full 

opportunity to cross-examine the child. See State v. Lukacs, 1st Dist. Hamilton No. C090309, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 30 (allowing victim's 

brother to testify by remote video outside the courtroom did not violate the Confrontation 

Clause where defendant had ample opportunity to cross-examine the witness and see 

him over the live video feed). 

{¶38} The standard of review in determining whether a trial court has made 

sufficient findings under R.C. 2945.481 to permit a child to testify via closed-circuit video 

is whether those findings are “supported by competent, credible evidence.” State v. 

Powers, 4th Dist. Scioto No. 19CA3868, 2020-Ohio-7042, ¶ 61. 

{¶39} After an evidentiary hearing, the trial court found requiring the victim to 

testify in court would further traumatize her, and would raise the risk factors for other 
Guernsey County, Case No. 21CA000008 16 

mental distress issues, including depression and anxiety. The trial court concluded there 

was a substantial likelihood the victim would suffer serious emotional harm if she testified 

in court in front of Appellant. 

{¶40} At the hearing, the State presented the testimony of Elisha Clark, the nurse 

practitioner who conducted the physical examination of the victim. Clark observed the 

interview with the child. Clark testified through her training, education, and experience 

she learned how to identify a child who may be suffering emotionally from having to speak 

about a trauma and who might be further traumatized by having to speak about the abuse 

suffered. She testified such signs include a child victim unable to use words and instead 

pointing to their genitals, talking about feeling sad or mad, pointing to a doll instead of 

themselves, covering their face, or appearing tearful. Clark testified during the interview, 

the victim in this case pointed to her genitals instead of using words. The victim told the 

interviewer when the abuse happened, it made her feel sad. In Clark’s opinion, the victim 

may have a hard time articulating what happened to her in front of Appellant due to the 

victim’s age and her relationship to Appellant. Clark further stated if the victim testified in 

front of Appellant, there was a substantial likelihood the victim could suffer serious 

emotional trauma in the future, creating a risk of the victim later developing post-traumatic 

stress disorder, anxiety, or depression. 

{¶41} We find the trial court’s finding was supported by competent, credible 

evidence presented through the testimony of Elisha Clark. The fourth assignment of error 

is overruled. 

 
Guernsey County, Case No. 21CA000008 17 

V. 

{¶42} In his fifth assignment of error, Appellant argues the trial court erred in giving 

the following jury instruction on consciousness of guilt: 

 Now, ladies and gentlemen, testimony has been admitted indicating 

that the defendant resisted arrest by failing to turn himself in to law 

enforcement despite his promise to do so. You are instructed that this 

conduct alone does not raise a presumption of guilt, but it may tend to 

indicate the defendant’s consciousness or awareness of guilt. 

 If you find that the facts do not support the defendant resisted arrest 

by failing to turn himself in to law enforcement despite his promise to do so, 

or if you find that some other motive prompted the defendant’s conduct, or 

if you are unable to decide what the defendant’s motivation was, then you 

should not consider this evidence for this purpose. 

 However, if you find that the facts supported the defendant engaged 

in such conduct, and if you decide that the defendant was motivated by a 

consciousness or an awareness of guilt, you may, but are not required to, 

consider that evidence in deciding whether the defendant is guilty of the 

crimes charged. You alone will determine what weight, if any, to give to this 

evidence. 

{¶43} Tr. 1562-63. 
Guernsey County, Case No. 21CA000008 18 

{¶44} A reviewing court may not reverse a conviction in a criminal case due to jury 

instructions unless it is clear the jury instructions constituted prejudicial error. State v. 

McKibbon, 1st Dist. Hamilton No. C–010145, 2002–Ohio–2041, ¶ 4, citing State v. 

Adams, 62 Ohio St.2d 151, 154, 404 N.E.2d 144 (1980). In order to determine whether 

an erroneous jury instruction was prejudicial, a reviewing court must examine the jury 

instructions as a whole. State v. Van Gundy, 64 Ohio St.3d 230, 233–234, 594 N.E.2d 

604 (1992). Pursuant to Crim. R. 52(A), “[a]ny error, defect, irregularity, or variance which 

does not affect substantial rights shall be disregarded.” 

{¶45} Appellant argues the instruction was improper because he took no 

affirmative steps to avoid apprehension. He argues based on his testimony at trial, he 

was the sole bread winner for his household, and he maintained contact with law 

enforcement while he finished a job assignment in Cleveland before turning himself in. 

The State argues Appellant was ultimately arrested in Cleveland, a representation which 

is not supported by the record. 

{¶46} The record reflects Appellant told law enforcement he would turn himself in 

on February 28, but instead stayed in Cleveland and did not turn himself in until March 5, 

2020. The trial court’s instruction accurately portrayed the evidence regarding Appellant’s 

failure to turn himself in on the date he promised law enforcement he would do so. The 

jury was able to hear Appellant’s explanation for remaining in Cleveland for a work 

obligation, and the trial court accurately instructed the jury if they found Appellant did not 

resist arrest by failing to turn himself in as promised, or the jury found some other motive 

than guilt prompted him to fail to turn himself in, or the jury was unable to determine 

Appellant’s motivation, they should not consider this evidence as consciousness or 
Guernsey County, Case No. 21CA000008 19 

awareness of guilt. Based on the totality of the instruction, we find the jury instruction 

was appropriate and not prejudicial in this case. 

{¶47} The fifth assignment of error is overruled. 

{¶48} The judgment of conviction and sentence of the Guernsey County Common 

Pleas Court is affirmed. 

By: Hoffman, J. 

Wise, Earle, P.J. and 

Wise, John, J. concur