Background
Dontae M. Upchurch was charged with kidnapping, attempted rape, and domestic violence arising from an encounter with his former girlfriend, G.B. The state alleged that Upchurch entered G.B.’s apartment, prevented her from leaving, assaulted and strangled her, threatened her with a knife, and attempted sexual penetration. A jury convicted him of kidnapping and domestic violence but acquitted him of attempted rape.
The trial court treated the domestic-violence offense as a fourth-degree felony under R.C. 2919.25(D)(3), relying on Upchurch’s prior conviction for intimate-partner violence under Columbus City Code 2319.25(D). It imposed an indefinite prison term of eight to twelve years for kidnapping, concurrent with eighteen months for domestic violence. Upchurch challenged the enhancement, remarks in the prosecutor’s opening statement, a witness’s reference to his incarceration, and testimony from the investigating detective about sexual-assault victims.
The Court’s Holding
The Tenth District affirmed. Applying de novo review to the statutory question, it held that Columbus’s intimate-partner-violence offense is “substantially similar” to domestic violence under R.C. 2919.25(A) for purposes of the repeat-offender enhancement. Although the municipal ordinance covers intimate partners who do not qualify as family or household members under the state statute, substantial similarity does not require identical elements. Because the court could resolve the issue by comparing the statutes, it did not examine the underlying record of the prior conviction.
The court also rejected Upchurch’s trial-error claims. The prosecutor’s references to “perverse sexual desires” and lack of remorse did not constitute plain error, particularly given the evidence and repeated instructions that opening statements were not evidence. G.B.’s brief reference to Upchurch’s incarceration did not require a sua sponte mistrial because the court immediately instructed the jury to disregard it. Finally, the court held that Detective Dennis Harbin’s description of reactions he had observed among sexual-assault victims was admissible lay testimony under Evid.R. 701 and did not require expert qualification under Evid.R. 702. Defense counsel preserved the expert-qualification objection; only Upchurch’s separate appellate theories concerning improper bolstering and Evid.R. 403 were unpreserved and reviewed for plain error.
Key Takeaways
- A municipal intimate-partner-violence conviction may enhance an Ohio domestic-violence charge when the offenses are substantially similar, even if their covered victim categories are not identical.
- A brief reference to a defendant’s incarceration does not necessarily require a mistrial when the court promptly gives a curative instruction and the record does not show resulting prejudice.
- An investigator may offer lay testimony based on personal observations and experience without expert qualification when the testimony does not assert specialized scientific or psychological knowledge.
Why It Matters
The decision adopts the Supreme Court of Ohio’s statutory-comparison framework from State v. Lloyd for determining whether a prior offense is substantially similar under R.C. 2919.25(D)(3). It also confirms that “substantially similar” permits meaningful differences between the compared statutes, allowing a Columbus intimate-partner-violence conviction to support felony enhancement under the state domestic-violence law.
The opinion also illustrates the importance of distinguishing preserved objections from new appellate theories. Upchurch preserved his Evid.R. 702 objection to the detective’s allegedly expert-like testimony, while his distinct bolstering and Evid.R. 403 arguments were not preserved.