State v. Frost , 2019 Ohio 93 ( 2019 )

[Cite as State v. Frost, 2019-Ohio-93.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106964
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEANGELO FROST
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-622098-A
BEFORE: Kilbane, A.J., E.A. Gallagher, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 10, 2019
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue
Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Janna R. Steinruck
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶1} Defendant-appellant, Deangelo Frost (“Frost”), appeals his conviction for unlawful
sexual conduct with a minor. For the reasons set forth below, we affirm.
{¶2} In October 2017, Frost was charged in a ten-count indictment. The charges
included four counts of rape; two counts of kidnapping, each with a sexual motivation
specification attached; two counts of unlawful sexual conduct with a minor, with a furthermore
clause indicating the offender was ten or more years older than the victim; and two counts of
gross sexual imposition. The indictment listed the victim as T.O., and it listed her date of birth
as June 20, 2003, and Frost’s date of birth as February 24, 1989. The matter proceeded to a jury
trial on January 23, 2018, at which the following evidence was adduced.
{¶3} T.O.’s father (“Father”) testified at trial that he went to prison 18 months after she
was born, and that he was awarded custody of her in 2015, shortly after he was released from
prison. Although paternity was never established, Father raised Frost as his son. He testified
that T.O. and Frost had a big brother-little sister relationship.
{¶4} Father testified that Frost and his girlfriend, Monisha, along with her three
children had been living with him in a two-family house in Cleveland, Ohio. Father’s bedroom
was in the finished attic or third floor, T.O.’s bedroom was on the second floor, and Frost shared
a bedroom with Monisha and her three children, which was also located on the second floor.
{¶5} Father testified that sometime in September 2017, he received a telephone call
from Monisha, who sounded very upset. He was upstairs in his bedroom at the time, so he went
downstairs to speak with her. Monisha informed him that Frost had been sexually assaulting
T.O. Monisha then attempted to show Father text messages that T.O. sent to Frost’s cell phone,
but it was taking too long, so he went to speak with T.O.
{¶6} Father testified that after speaking with T.O., he spoke again with Monisha, who
showed him the text messages meant for Frost that she had intercepted because she had Frost’s
phone in her possession. After viewing the text messages, Father went and spoke with T.O.
again and tried to assure her that it was not her fault.
{¶7} Father testified that he later attempted to contact Frost, who was not at home at
the time, but was unsuccessful. Father contacted the Cuyahoga County Division of Children and
Family Services (“CCDCFS”), who instructed him to take T.O. to the police station. After
visiting the police station, Father took T.O. to the hospital, where a sexual assault physical
examination was conducted.
{¶8} Father testified that subsequent to the revelation, T.O.’s demeanor and emotions
have fluctuated. Father stated that when he recently attempted to hug T.O. from behind, she
elbowed him and recoiled. Two days later, T.O. said Father’s body reminded her of Frost’s.
{¶9} T.O. testified that Frost is her brother, and she has known him since she was a
baby. She had not been in contact with him for a number of years, but had reconnected in the
early part of 2017. T.O. testified that late one night in July 2017, Frost entered her bedroom,
while she was watching television, and began making contact with her vaginal area over her
clothing. She stated Frost proceeded to pull down her pants and then inserted his penis into her
vagina. T.O. stated that she told Frost: “[y]ou need to stop.” Frost withdrew his penis, left the
room and went to the bathroom. T.O. stated that she did not tell her Father because she did not
want Frost to get in trouble.
{¶10} T.O. testified that sometime in August 2017, she went to the kitchen to get a drink
of water. As she was returning to her bedroom, she observed Frost standing in the living room.
T.O. testified that Frost said “[c]ome here, and I did. And then that’s when he pulled down my
pants and bent me over on the couch and he put his penis in my vagina.”
{¶11} T.O. testified she told Frost he needed to stop, but he refused. Eventually, Frost
withdrew his penis, left the room and went to the bathroom. T.O. stated that she also did not tell
her Father about the second incident, because she did not want Frost to get in trouble and did not
want the family to be broken apart.
{¶12} At trial, T.O. was presented with a print out of the aforementioned text messages
she sent to Frost’s cell phone. She offered the following testimony:
[STATE]: [T.O.], do you remember sending text messages to [Frost]?
[T.O.]: Yes.
[STATE]: Okay. And what was it that you sent him messages about?
[T.O.]: Oh, I sent them about I wanted to do it again or something like that.
[STATE]: You wanted to do it again?
[T.O.]: Yes.
[STATE]: What was it you wanted to do again?
[T.O.]: Have sex.
[STATE]: But you said you didn’t want to the first two times there in July and
August.
[T.O.]: That, I don’t know what I was thinking. I just thought about it and
then I was thinking, that I might —
[STATE]: So you sent the message to him saying you wanted to have sex?
[T.O.]: Yeah.
{¶13} Julie Loyke, RN (“Nurse Loyke”), a pediatric nurse practitioner at Rainbow Babies
and Children Hospital, testified she examined T.O. on September 28, 2017. Nurse Loyke stated
that T.O. indicated Frost had inserted his penis into her vagina and that there was some bleeding
afterward. Nurse Loyke stated her examination of T.O. produced no physical findings. Nurse
Loyke stated that 95 percent of examinations taking place more than 96 hours after the sexual
assault, would produce no physical findings.
{¶14} Sally McHugh (“McHugh”), an intake sexual abuse caseworker with CCDCFS,
testified she conducted a home visit with T.O. in September 2017. McHugh stated she met with
T.O. to assess the safety of the environment, to evaluate the need for medical or psychological
treatment, and to make the necessary referrals.
{¶15} McHugh testified that T.O. indicated that on two occasions Frost had inserted his
fingers into her vagina. McHugh made a referral to the Care Clinic and administratively
disposed of the case as “sexual assault indicated.” McHugh testified that T.O. had an open case
in Summit County Division of Children and Family Services, regarding her mother’s issues with
drugs and prostitution.
{¶16} At the end of the state’s case, Frost moved for acquittal under Crim.R. 29(A). The
trial court granted that motion with respect to Counts 1, 6, and 8, which were two rape charges
and one gross sexual imposition charge, and the case proceeded with the remaining counts. On
January 30, 2018, the jury returned guilty verdicts to the two counts of unlawful sexual conduct
with a minor, with the further finding that Frost was ten or more years older than the victim.
{¶17} On February 26, 2018, the trial court sentenced Frost to 24 months in prison on
each count, to be served consecutively, for a total of 48 months in prison. The trial court also
classified Frost as a Tier II sex offender.
{¶18} Frost now appeals assigning the following errors for our review.
Assignment of Error One
The State failed to present sufficient evidence to sustain a conviction against
[Frost].
Assignment of Error Two
[Frost’s] convictions are against the manifest weight of the evidence.
Assignment of Error Three
[Frost] was denied a fair trial by the witness’[s] improper comments while
testifying, including [Frost’s] guilt in violation of the Ohio Rules of Evidence and
in violation of the Right to a Fair Trial and in violation of the Due Process Clause
of the Fourteenth Amendment of the United States Constitution.
{¶19} In the first assignment of error, Frost argues the state failed to present sufficient
evidence to support the convictions.
Sufficiency of Evidence
{¶20} Sufficiency is a test of adequacy. Whether the evidence is legally sufficient to
sustain a verdict is a question of law. State v. Williams, 8th Dist. Cuyahoga No. 106563,
2018-Ohio-4612, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate
court examines the evidence admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the defendant’s guilt beyond a reasonable doubt. Id. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Id., citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus.
{¶21} The offense of unlawful sexual conduct with a minor requires the state to prove
that the defendant engaged in sexual conduct with another, who is not the spouse of the offender,
“when the offender knows the other person is 13 years of age or older but less than 16 years of
age, or the offender is reckless in that regard.” R.C. 2907.04(A).
{¶22} In the instant case, the evidence established that T.O. was 14 years old at the time
of the offenses, and Frost was 28 years old. T.O. testified that in July 2017, Frost entered her
bedroom, pulled down her pants and inserted his penis into her vagina. T.O. also testified that
Frost repeated these actions in August 2017. T.O. testified that in both instances, she told Frost
he needed to stop.
{¶23} In addition, T.O. testified about the text messages she sent to Frost’s cell phone;
text messages which were ultimately intercepted by Frost’s girlfriend. As previously mentioned,
in the text messages, T.O. inquired of Frost when they would have sex again. Further, both
Nurse Loyke and the intake case worker, McHugh, testified that T.O. indicated that she had been
sexually assaulted by Frost.
{¶24} Based on the foregoing, we conclude there was sufficient evidence presented,
which, if believed, would convince the average trier of fact that Frost was guilty beyond a
reasonable doubt of unlawful sexual conduct with a minor.
{¶25} Accordingly, the first assignment of error is overruled.
Manifest Weight of Evidence
{¶26} In the second assignment of error, Frost argues his convictions were against the
manifest weight of the evidence.
{¶27} A manifest weight challenge questions whether the prosecution met its burden of
persuasion. State v. Tate, 8th Dist. Cuyahoga No. 97804, 2014-Ohio-5269, citing State v. Byrd,
8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When considering a manifest weight
challenge, a reviewing court reviews the entire record, weighs the evidence and all reasonable
inferences therefrom, considers the credibility of the witnesses and determines whether the finder
of fact clearly lost its way. Id., citing State v. Jackson, 8th Dist. Cuyahoga No. 86542,
2006-Ohio-1938, ¶ 29. A reviewing court may reverse the judgment of conviction if it appears
that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Id.{¶28} We note that in considering a manifest weight challenge, the trier of fact is in the
best position to take into account inconsistencies, along with the witnesses’s manner, demeanor,
gestures, and voice inflections, in determining whether the proffered testimony is credible. State
v. Becker, 8th Dist. Cuyahoga No. 100524, 2014-Ohio-4565, citing State v. Kurtz, 8th Dist.
Cuyahoga No. 99103, 2013-Ohio-2999. Therefore, we afford great deference to the factfinder’s
determination of witness credibility. State v. High, 8th Dist. Cuyahoga No. 106198,
2018-Ohio-2236, citing State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, ¶ 36.
{¶29} In the instant case, Frost contends that there was no corroborating evidence and no
physical evidence of any sexual interaction, abuse, or misconduct.
{¶30} Despite Frost’s contentions, Nurse Loyke testified that 95 percent of physical
exams that take place 96 hours after the allegation of sexual assault would provide no physical
evidence. Nurse Loyke examined T.O. on September 28, 2017, and T.O. testified the assaults
took place in July and August 2017. Thus, an examination conducted a month after the second
assault would provide no physical evidence.
{¶31} In addition, as discussed in the first assigned error, T.O.’s testimony about the two
separate incidents, if believed, was sufficient to allow a reasonable jury to conclude that the
complained of conduct occurred. Further, T.O.’s text messages, meant for Frost, which
Monisha discovered, and which ultimately led to the instant charges, arguably could have been
viewed by the jury as corroborating evidence of the sexual assaults.
{¶32} In light of the foregoing, when considering T.O.’s credibility and resolving
conflicts in the evidence, including her inability to specify the dates, we do not find that the jury
clearly lost its way in convicting Frost.
{¶33} Accordingly, the second assignment of error is overruled.
Testimony
{¶34} In the third assignment of error, Frost argues that the trial court erred in permitting
the state to introduce the testimony of McHugh that CCDCFS determined that a finding of abuse
was “indicated.”
{¶35} In State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), syllabus, the Ohio
Supreme Court held that “[a]n expert may not testify as to the expert’s opinion of the veracity of
the statements of a child declarant.” Subsequently, the Ohio Supreme Court held that an expert
witness’s testimony that the behavior of an alleged child victim of sexual abuse is consistent with
behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence.
State v. Stowers, 81 Ohio St.3d 260, 1998-Ohio-632, 690 N.E.2d 881. In Stowers, the court
explained that “Boston’s syllabus excludes expert testimony offering an opinion as to the truth of
a child’s statements (e.g., the child does or does not appear to be fantasizing or to have been
programmed, or is or is not truthful in accusing a particular person),” and “does not proscribe
testimony which is additional support for the truth of the facts testified to by the child, or which
assists the factfinder in assessing the child’s veracity.” Id. at 262-263.
{¶36} In State v. Clark, 8th Dist. Cuyahoga No. 101863, 2015-Ohio-3027, we addressed
this issue and restated our holding in State v. Ferrell, 8th Dist. Cuyahoga No. 100659,
2015-Ohio-1446. In Clark we stated:
This court has repeatedly recognized “that a social worker’s interdepartmental
determination of an allegation of abuse — such as, unsubstantiated, substantiated,
or indicated — is acceptable, provided the social worker does not testify as to the
truthfulness or credibility of the alleged victim.” State v. Jackson, 8th Dist.
Cuyahoga No. 92531, 2010-Ohio-3080, ¶ 17, citing State v. Smelcer, 89 Ohio
App.3d 115, 623 N.E.2d 1219 (8th Dist.1993); State v. Sopko, 8th Dist. Cuyahoga
No. 90743, 2009-Ohio-140; State v. Whitfield, 8th Dist. Cuyahoga No. 89570,
2008-Ohio-1090; State v. Simpson, 8th Dist. Cuyahoga No. 88301,
2007-Ohio-4301. In Smelcer, this court noted that “the Boston decision did not
prohibit an expert from giving his or her opinion on whether sexual abuse
occurred.” [Smelcer] at 121, citing State v. Cornell, 8th Dist. Cuyahoga No.
59365, 1991 Ohio App. LEXIS 5664 (Nov. 27, 1991).
While the social worker’s testimony reports the agency’s finding that sexual abuse
of the victim was indicated, it does not offer any opinions on who committed the
abuse. At no point during the social worker’s testimony did she testify that she
believed Ferrell was the perpetrator or was the person who committed the abuse.
The social worker testified repeatedly that her purpose in interviewing the victim
was to assess his or her safety. In doing so, the social worker referred to the
accused as the “alleged perpetrator.”
The social worker did not testify as to the veracity of the victim’s accusations
against Ferrell.
Id. at ¶ 15-17.
{¶37} Here, as in Clark and Ferrell, the social worker did not testify that she believed
Frost committed the sexual assaults. McHugh testified the purpose of the home visit was to
assess the safety of the environment, to evaluate the need for medical or psychological treatment,
and to make the necessary referrals. McHugh explained that her disposition of the case as
“indicated” was one of three administrative classifications used to track allegations within the
state of Ohio, the other two being “substantiated” and “unsubstantiated.” McHugh also
explained that “indicated” means a consistent disclosure by the client. At no time did McHugh
vouch for T.O.’s credibility. McHugh never testified that she believed T.O. was telling the truth.
{¶38} Arguably, McHugh’s statement is a close call in relationship to other testimony we
have reviewed along this vein. However, her explanation was constrained by the three
administrative classifications available to CCDCFS and throughout the state of Ohio. It is
important to note, Frost was found not guilty of two counts of rape, one count of GSI, and two
counts of kidnapping, but guilty of two counts of unlawful sexual contact with a minor.
{¶39} Thus, under the specific circumstances, the perceived impact of McHugh’s
testimony that a finding of abuse was “indicated,” should be viewed in relationship to the results
at trial. It is quite possible the jury gave very little or no weight to McHugh’s testimony
regarding her determination of “indicated,” but gave greater weight to the text messages T.O.
sent to Frost’s cell phone. As previously discussed, the jury could have viewed the text
messages as corroborating evidence of the sexual assaults alleged.
{¶40} In light of the foregoing, the trial court did not err in permitting McHugh to testify
that her determination was “indicated.”
{¶41} Accordingly, the third assignment of error is overruled.
{¶42} Judgment affirmed.
It is ordered that appellee recover of 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 this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR