Gift Eseoghenegbuyoto Ojie v. the State of Texas

Affirm and Opinion Filed August 27, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01003-CR

GIFT ESEOGHENEGBUYOTO OJIE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-85078-2023

MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Molberg
A jury found appellant Gift Ojie guilty of indecency with a child by sexual

contact, and the trial court assessed punishment at nine years’ confinement. In one

issue, appellant contends the trial court abused its discretion in admitting, over his

hearsay objection, a note written by the complainant concerning the alleged act of

indecency. We affirm in this memorandum opinion.

Background

A.K., who was eighteen at the time of trial, testified that her mother (Mother)

met and married appellant in 2017. That year, when A.K. was in seventh grade, they
moved to the Cortona Apartments in Fairview, Collin County, Texas. A.K. lived

there with Mother, appellant, and her two younger brothers.

At first, her relationship with appellant was good—“he was nice, friendly”—

but, at some point in time, he began making “rude comments about” A.K.’s body.

He commented on A.K.’s butt and breasts, telling her “they were big at that time”

and were “shaped more like a grown woman[’s]” than someone her age. A.K. said

Mother was around when appellant made some of these comments. Mother seemed

to brush off appellant’s comments, and A.K. felt like Mother did not care.

A.K. said that shortly after appellant moved in with them, he also began trying

to touch her body. A few times, he touched or slapped her butt without saying

anything to her—“he would just be smiling.” A.K. did not know how to react to this

behavior and did not say anything to appellant because she was “just too scared” and

did not know what to do. She was worried that if she said anything to Mother, he

would hurt A.K. or Mother.

Once, when A.K.’s mother had gone to the grocery store, A.K. was eating

cereal at the kitchen table when appellant sat down next to her and began making

small talk. Appellant showed A.K. a pornographic video on his phone and

commented on “how rough they were being” in the video before asking her to re-

create the video. A.K. said the next thing she remembered was standing up and

appellant “was kind of rough” and put both of his hands on her breasts while she was

facing him. Appellant had a “good grip” of her breasts and then moved his hands in

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a circular motion. A.K. did not know what to say, and appellant did not say anything

to her at that point in time. A.K. described appellant’s expression as “grinning” and

“evil.” She was worried appellant was going to hurt her, but eventually it stopped.

A.K. tried to finish her food in the kitchen, and appellant went back to his bedroom.

A.K. then went to her bedroom and started crying and “pretty much stayed” there

for the rest of the day because she did not want to be around anyone. A.K. did not

think about telling Mother because she “couldn’t even really process what

happened,” and she was scared about what appellant might do in response. A.K.

tried to avoid appellant after this incident and stayed in her room more.

At the time, A.K. did not know much about sex and had not had any

conversations with Mother about what sex is. She testified she thought she was

thirteen at the time of the incident. She said she turned thirteen when they were

living at the Cortona.

Later, when A.K. was in ninth grade, the family, including appellant, moved

into a townhome in McKinney. Appellant’s comments and inappropriate touching

did not stop during the time they lived there. A.K. said one incident that happened

in this house stood out in her memory. She was washing dishes in the kitchen in the

afternoon when appellant approached her from behind and wrapped his arm around

her waist so she could not move. A.K. felt appellant’s mouth and teeth on her ear.

She did not think anyone else was home at the time. A.K. was able to make a jerking

movement to push appellant off and went to her room, and appellant “just kind of

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laughed.” A.K. said it reminded her “of the first time he tried something” and “it

just felt nasty.” A.K. decided to tell Mother because she wanted it to stop; but when

she tried to tell her about appellant’s conduct, Mother told her “not to say things like

that.” A.K. felt like no one would believe her. Her relationship with Mother started

to change and they began arguing more. A.K. felt aggravated because Mother “was

blind to the stuff that was going on.”

Towards the fall of her sophomore year of high school, A.K. went to stay for

a couple of weeks with her older sister, D.W., a teacher, after Mother had kicked

A.K. out of the house following an argument. A.K. returned home and things were

good with Mother again, but that eventually changed when they got “back into the

same argument again,” which was about whether Mother prioritized men over her

children and took appellant’s side.

D.W. came and picked her up and A.K. ended up living with her for the rest

of high school. A.K. said D.W. was “like a second mom to me.” After she had been

living with D.W. for a few months, A.K. told D.W. about appellant’s conduct. One

evening, A.K. was washing dishes and started crying, “maybe because of the song

that was playing . . . reminded me of everything that was happening with my mom”

and she started thinking about “the stuff that happened with [appellant].” D.W.

noticed and asked A.K. what was wrong. When A.K. could not answer her, D.W.

gave A.K. her cell phone with the Notes application opened and told her to type out

what was bothering her. A.K. took D.W.’s phone and typed out a note.

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The State took screenshots of the note and sought to admit them as State’s

Exhibit 6. Appellant objected on hearsay grounds. The State responded it was not

offering the note for the truth of the matter asserted but “because it goes to the

victim’s state of mind as to what she was thinking and what she was saying, what

she was communicating and how and why she was able to communicate it,” and to

rebut the defense’s theory of fabrication. The trial court sustained appellant’s

objection.

Sergeant John Duscio testified he was assigned to A.K.’s case. He said the

specific allegation in the case was “touching over the clothes” “of female breasts.”

Defense counsel cross-examined Duscio about why a child might fabricate an

allegation of sexual indecency. Duscio agreed someone might make a false

accusation to get out of trouble, for vengeance, due to mental illness, or to

manipulate one’s living arrangements. He also agreed that a child might prefer to

live in a home where there are fewer rules. Duscio did not know whether A.K. was

in trouble when she made the accusation. As to vengeance, he said A.K. had “some

misunderstanding with her mother, which is why she left” Mother’s house and

moved in with her sister. Duscio was unaware whether A.K. had any mental health

issues.

Duscio also testified he learned from Mother that while A.K. had some

behavioral problems, it was “typical sixteen-year-old behavior” and nothing that

concerned him in his investigation. After interviewing D.W., Duscio did not have

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any concerns that A.K. was using the allegation to manipulate her living

arrangements, was trying to get out of trouble, or was acting out of vengeance. He

said neither Mother nor D.W. ever told him anything about mental health problems

regarding A.K. He also said he observed A.K.’s forensic interview and said her

demeanor did not seem vengeful or angry towards appellant. He tried to get in

contact with appellant but never heard back from him.

D.W. testified she had more of a mother–daughter relationship with A.K. than

a sister–sister relationship due to their age difference—D.W. is thirteen years older

than A.K.—and past situations where D.W. had to step in and help A.K. D.W. said

she was “more strict on [A.K.] than” than Mother was.

D.W. said that when A.K. moved in with her, A.K. was reserved and stayed

in her room a lot. On the day A.K. told D.W. what happened with appellant, D.W.

said A.K. was washing dishes after dinner and began crying. D.W. could not get

A.K. to calm down and asked her whether something had happened and told her, “If

you can’t say it, then you type it out.” D.W. handed A.K. her iPhone with the Notes

application pulled up, and A.K. “ended up typing out a message and letting me know

what happened.” D.W. read the note and was in shock about what she learned. She

determined she had to report appellant. The State again offered into evidence

screenshots of A.K.’s typed note, and the trial court admitted it over appellant’s

hearsay objection for “the limited purpose of showing her demeanor and what she

did.” A.K.’s note, admitted as State’s Exhibit 6, reads in full as follows:

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When I was in the 7th grade and living the cortana, with mom and the
boys and [appellant]. I don’t know how we were alone but we were
and [appellant] I guess was trying to recreate or show me something he
had watch. And he was explaining it to me, and Im 13 and no grown
adult man should be doing this with a little girl. Barely 13. And he
touched my boob and we’re messing with them. And when it happened
I was confused and I didn’t know what to do so I just tried to act normal
and went in my room. I knew mom wasn’t gonna believe me if I told
her and so I kept it a secret and tried to deal with it on my own. And
when I finally built up the courage to tell her, she just told me to shut
up and that I shouldnt accuse him of being a pedophile. And it broke
me cause she’s my mom so I’ve been dealing with it since then. And
it’s been messing with my mind for the past year. Eating at me and
killing me. So when I saw his call, it brought back memories of him
and mom and everything. As I hate myself for it. I was so scared to
tell anyone else about it.

The trial prosecutor then questioned D.W. about the contents of the note.

D.W. said A.K. spoke with Mother on a weekly basis when A.K. lived at

D.W.’s home. She was unsure how often, if ever, appellant reached out to A.K., but

believed he did once on the day A.K. broke down and told her about what happened

because A.K. told her appellant had called her earlier. D.W. said “the reason why it

triggered her is because one time he came up to her neck, kissing her on her neck

and - - and feeling on her, she was washing dishes. So that’s the reason why she

broke down when I said something about washing dishes.”

D.W. called, among others, Mother, who did not believe the incident

happened and seemed concerned about A.K. but also “other things outside of [A.K.]”

D.W. said she wanted to give Mother a chance to report the incident. D.W. and A.K.

picked up Mother and their two younger brothers the next day and went to Walmart,

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but appellant showed up to get Mother. D.W. and A.K. begged Mother not to leave

with appellant but she did. D.W. took the two boys and A.K. back with her, and

later that night, reported the incident to child protective services.

D.W. said it had been difficult watching A.K. go through dealing with the

incident and the fallout. She said “oftentimes [A.K.] will be crying or upset in her

room, and I will just -- just sit there with her and tell her, [A.K.], I know it’s hard.

Like, You’ve had a hard life, but you will get past this. You don’t have to -- you

know, You don’t have to do it alone. I’m here to support you along the way.”

Among other matters, Morgan Wilkerson testified she conducted a forensic

interview of A.K. in January 2021 at the children’s advocacy center. She said A.K.

was able to speak with her in a developmentally appropriate way and could

distinguish between the truth and a lie. A.K. was emotional, upset, and quiet; she

did not seem like she wanted to be at the center talking about the incident. Wilkerson

said A.K. articulated that an offense was committed against her when she was twelve

or thirteen by her stepfather. She said A.K. provided her sensory details of what

happened to her, and she was consistent throughout the interview. Wilkerson said

A.K. did not seem vindictive towards appellant, and she did not notice any red flags

she felt like she needed to follow up on. Wilkerson said it is common for an abused

child to have an unsupportive parent, which can be “a big barrier to disclosure.”

Wilkerson’s training involved spotting manipulation and grooming, and she said

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A.K. “disclosed to me about what was shown to her, as well as the things that were

communicated to her.”

Appellant testified that neither A.K. nor D.W. approved of his marriage to

Mother. He was surprised a child such as A.K. was vocal about adult matters and

said that, generally, A.K. considered herself to be an adult and did not want to follow

Mother’s rules. He left dealing with A.K. to Mother because he viewed A.K. as

“bold” and “disrespectful.” He thought A.K. started dressing inappropriately, which

he communicated to Mother but not to A.K. directly.

Appellant said the detective investigating the case tried to contact him when

he was in Nigeria. But he said he tried to speak with the investigating detective

multiple times after that but never heard back from him. He did not think the police

did much to investigate the case.

Appellant said he did not commit the offense. He believed A.K. fabricated

the allegations because she did not want to return home to live with Mother. He also

said A.K. viewed him as competition for Mother’s attention and wanted to get rid of

him.

At the time A.K. said the offense occurred, appellant said he was working

three jobs, which amounted to between 96 and 113 hours per week. He said, at the

time, he and Mother shared one car. They would take the children to the bus stop at

six in the morning so they could go to school, appellant would drop Mother off at

her work, and then appellant would go to work. After work, appellant would go to

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his delivery job, and after that he would work a job at the American Airlines Center

until two or three in the morning. So, he said, he was never home and always

working. He could not remember a single time he was home alone with A.K. On

cross-examination, he acknowledged he came home to sleep and was home in the

morning to eat breakfast, in addition to having some holidays and days off. He

denied ever watching pornography or making inappropriate comments towards A.K.

Appellant said A.K. lied when she said she turned thirteen when they lived at

the Cortona. She was born in October 2004 and turned thirteen in October 2017.

Appellant said A.K. said the offense occurred prior to October 2017, yet, he said,

they moved into the Cortona in November 2017. The trial court admitted a lease

contract for a unit at the Cortona, signed by Mother and appellant, showing that the

term of their lease did not begin until November 18, 2017. He also did not believe

A.K. would have been left at home when Mother went to the grocery store because

A.K. “goes everywhere with her mom” and A.K. looked forward to going to the

store with her.

Appellant said he did not mean to call A.K. on the day she told D.W. that

appellant had inappropriately touched her. He intended to call A.K.’s brother and

mistakenly dialed A.K.’s number.

Appellant testified he saw D.W.’s testimony and saw the note A.K. wrote to

her when it was admitted in evidence. The trial prosecutor asked him, “You would

agree with me that that note is pretty consistent to what [A.K.] told the police, the

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forensic interviewer, [D.W.], and everybody in open court on this stand this

morning, right?” Appellant responded, “That’s her testimony, yes.”

Appellant said Mother asked him to show up at Walmart to meet her the day

after A.K. told D.W. about appellant’s conduct. He was not aware A.K. had made

any accusations at the time he picked her up. Appellant went to Nigeria three days

after that, because, he said, he already had a trip planned. He was in Nigeria from

the end of December and returned on February 2.

Appellant said he spoke with Mother about the allegations and told her A.K.

“did not want to come back home because she had started living another life when

she knows her home is there already, and . . . she’s just wanting to get me out of the

way.” Appellant denied that Mother or anyone else in the family was afraid of him.

Defense counsel also recalled Detective Duscio to testify. Duscio disagreed

there was a timeline problem with the State’s case if the family moved into the

Cortona in November 2017. He said that children are not always good with dates.

Defense counsel inquired, “If she said it was prior to her thirteenth birthday at the

Cortona Apartments, can you concede that that’s a problem if they didn’t live in the

Cortona Apartments when she turned 13?” Duscio responded, “Sure.”

Counsel questioned Duscio regarding the note A.K. typed on D.W.’s phone.

He said A.K. did not say anything about a note on her sister’s phone during the

investigation and he was unaware when the note was turned over to the prosecution.

On re-direct, Duscio said, among other things, there had been no dispute the family

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lived at the Cortona in the fall of 2017. He did not think a three-week discrepancy

discredited A.K. or the specific details she recalled about the incident. The trial

prosecutor also reviewed A.K.’s note with Duscio, who said the contents of the note

were consistent with what A.K. said in the forensic interview and what he learned in

the course of his investigation.

The State recalled A.K. as a rebuttal witness. Among other things, she

testified appellant touched her breasts at the Cortona, around the time of her

thirteenth birthday. She said it would not surprise her if she was off by three weeks

and they had not moved into the apartment until November 2017.

Discussion

In his sole issue, appellant contends the trial court abused its discretion in

admitting A.K.’s written note over his hearsay objection. In response, although the

State does not concede the trial court abused its discretion, it only argues appellant

was not harmed by any error in the admission of the note. We will assume without

deciding the trial court erred in admitting the note and evaluate any error for harm.

The erroneous admission of hearsay evidence is nonconstitutional error.

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional

error requires reversal only when the error affects a party’s substantial rights. See

TEX. R. APP. P. 44.2(b). Error that has a substantial and injurious effect or influence

in determining the jury’s verdict affects a party’s substantial rights, see Coble v.

State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010), while error that does not

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influence the jury, or has but very slight effect, does not affect substantial rights, see

Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016).

We analyze the whole record to determine the effect of the trial court’s error,

considering all of the evidence, the nature of the evidence supporting the verdict,

and the character of the error and its relationship to other evidence. See Gladney v.

State, No. 05-11-01088-CR, 2012 WL 5949473, at *1 (Tex. App.—Dallas Nov. 28,

2012, pet. ref’d) (mem. op., not designated for publication). The improper admission

of evidence is harmless if the same or similar evidence is admitted without objection

at another point during trial. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim.

App. 2010); Jenkins v. State, No. 05-22-01003-CR, 2024 WL 412518, at *6 (Tex.

App.—Dallas Feb. 5, 2024, pet. ref’d) (mem. op., not designated for publication).

We conclude any error in the admission of the note did not have a substantial

and injurious influence in determining the jury’s verdict. First, A.K. testified at trial

about appellant’s conduct constituting the alleged offense, and the note repeated

parts this testimony. As described above, as pertinent here, A.K. testified appellant

showed her pornography on his phone, commented on it, and wanted to recreate it

with her; appellant grabbed her breasts and moved his hands in circular motion

around them; afterwards, she tried to finish eating breakfast in the kitchen before

returning to her bedroom; she told Mother about the incident, who told her not to

say things like that; and the incident affected her greatly. Similarly, in the note, A.K.

stated appellant wanted to show or recreate with her something he had watched; he

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touched or messed with her breasts; she returned to her room afterwards; eventually,

she told Mother, who told her to keep quiet about the incident; and the incident

caused her great distress. Second, other evidence was admitted without objection

showing the note to D.W. existed and A.K. accused appellant in the note of the

conduct testified to at trial. A.K. testified she typed out a note on D.W.’s phone

describing the incident with appellant. Similarly, D.W. testified A.K. typed out a

note on her phone describing conduct she knew she had to report.

Given the above, we conclude any error in the note’s admission did not affect

appellant’s substantial rights. See Torres v. State, No. 05-22-00314-CR, 2023 WL

4861780, at *3 (Tex. App.—Dallas July 31, 2023, no pet.) (mem. op., not designated

for publication) (concluding witness’s repetition of complainant’s out-of-court

statements “largely repeated certain testimony from the unobjected-to trial testimony

of the alleged victim and her mother regarding [the appellant’s] conduct” and was

harmless); Lumsden v. State, 564 S.W.3d 858, 891 (Tex. App.—Fort Worth 2018,

pet. ref’d) (concluding erroneously admitted video recording of forensic interview

was harmless when video “provided essentially the same story” as complainant’s

testimony and it was “unlikely that the jury was inclined to reject [complainant’s]

story of sexual abuse but changed its mind after hearing it again in the recording”).

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Conclusion

Having overruled appellant’s sole issue, we affirm the trial court’s judgment.

/Ken Molberg/
KEN MOLBERG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
231003F.U05

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

GIFT ESEOGHENEGBUYOTO On Appeal from the 401st Judicial
OJIE, Appellant District Court, Collin County, Texas
Trial Court Cause No. 401-85078-
No. 05-23-01003-CR V. 2023.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Molberg. Justices Nowell and
Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 27th day of August, 2024.

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