State v. Combs , 2020 Ohio 4084 ( 2020 )

[Cite as State v. Combs, 2020-Ohio-4084.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28559
:
v. : Trial Court Case No. 2019-CR-132
:
PAUL N. COMBS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 14th day of August, 2020.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 100 North Detroit Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Paul N. Combs appeals from the trial court’s judgment entry convicting him,
following a jury trial, on one count of gross sexual imposition (under age 13) (“GSI”), in
violation of R.C. 2907.05(A)(4), a felony of the third degree. The trial court sentenced
Combs to 24 months in prison and designated him a Tier II sex offender. We affirm the
judgment of the trial court.
{¶ 2} Combs was indicted on one count of GSI (under age 13) on February 15,
2019, and he pled not guilty. His trial commenced on August 27, 2019. The following
evidence was presented at trial.
{¶ 3} The victim’s mother, “Kristy,” testified that she and her husband, “Andrew,”
live in Kettering with her two daughters, “Sarah” and “Sonia.”1 Kristy testified that Sonia,
who is the victim herein, was born in February 2007 and has global disability disorder,
including broad spectrum autism, oppositional defiant disorder, and attention deficit
hyperactivity disorder (ADHD). Kristy testified that Sonia is high functioning; she can
speak and do things for herself, has an individualized education program (IEP), and is on
community-based programming at school rather than regular classes.
{¶ 4} Kristy and Combs attended high school together. Kristy testified stated that
she and her family lived out of state for 15 years and then returned to Kettering, where
she and Combs reconnected. Combs lived with his wife, “Jenna”, and three daughters
near Kristy’s home. Kristy stated that on November 2, 2018, she and her family went
over to the Combs’ family home for a get-together; the adults ordered pizza and were
drinking alcohol while the girls were playing throughout the house. Sonia and Combs’s
1
We use pseudonyms to refer to the victim, her family members, and some others, to
protect the identity of the victim and other minors discussed in this case.
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daughter, Emily, are the same age.
{¶ 5} Kristy described Combs’s behavior at the get-together as initially upbeat, but
she stated that later in the evening he got into an argument with his wife. Kristy testified
that Combs was intoxicated over the course of the evening, and that he was “stumbling
around, slurring words.” She testified that Sarah and two of Combs’s daughters decided
to spend the night at Kristy’s home, and Sonia decided to sleep at the Combs’ home with
Emily. She testified that the Combs’ home was a three-bedroom ranch, and before she
went home she observed Sonia in a twin bed with Emily in Emily’s room. Kristy testified
that the bed was against a wall, and Emily was on the side against the wall. The girls
were awake when Kristy saw them in bed, and she said goodnight to them before going
home. Kristy testified that Andrew remained with Combs elsewhere in the home while
she did so. Kristy testified that, when she left the Combs’ home, Combs was “laying in
his bed,” and the girls “were in their bed.”
{¶ 6} Kristy testified that around 3:00 in the morning, after she and Andrew had
been home “about 40 minutes or so,” Jenna brought Sonia home. Kristy testified that
Sonia ran into her arms and began to cry. She testified that Sonia disclosed that Combs
had touched her inappropriately, and defense counsel objected. The court overruled the
objection, and Kristy testified that Sonia “was just sobbing so much. She said that Paul
had touched her and she - - she didn’t feel safe there; she came home.” Kristy testified
that Sonia had not told Jenna what had happened. Kristy stated that she, Andrew, and
Jenna spoke privately, and that Jenna said “I don’t think he could do this; what was he
thinking,” and that “she got mad.” Kristy and Jenna returned to the Combs’ home to
confront Combs while Sonia remained with Andrew
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{¶ 7} Kristy testified that she and Jenna entered Combs and Jenna’s bedroom, and
that Jenna slapped Combs to wake him up. Kristy testified that Combs began cussing
at Jenna, and that Kristy asked him what happened with him and Sonia. Kristy testified
that Combs was “acting like he [didn’t] know anything, completely oblivious. He didn’t
do anything; he didn’t touch her.” Kristy testified that Combs left the bedroom, went to
the kitchen, started throwing things, and was screaming. Kristy testified that she began
to walk home, but Jenna picked her up and drove her the rest of the way home, and Jenna
pick up her own daughters from Jenna’s house. Kristy testified that Sonia had previously
been to sleepovers with family and friends and that she had never come home in the
middle of the night before.
{¶ 8} On cross-examination, when asked about the symptoms of global disability
disorder, Kristy testified that Sonia “gets argumentative” and does not “want to listen.”
Kristy testified that Sonia “isn’t on track with most sixth graders, which is why she’s in the
program she’s in”; Sonia is “slower” in her studies. Kristy stated that Sonia “had times
where she was really quiet” when she was growing up, but as she got older, she “just
constantly now talks, and even interjects in conversation, just because she wants her
opinion to be heard.”
{¶ 9} Kristy testified that the night of the abuse was her family’s first time at Combs’
home. She testified that she called the police and provided a written statement on
November 4, 2018, which she identified. In her statement, Kristy recounted that Sonia
told her and Andrew that Combs entered Emily’s room and “laid between” Emily and
Sonia in the bed.
{¶ 10} Andrew testified that Combs was intoxicated on the night of the incident.
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According to Andrew, there had been “tension” between Combs and his wife all night
about his spending too much time on his phone and talking to other women. Andrew
had spent “a fair bit of the night” telling Combs that he was a “clown” he was for doing
that. Before leaving the Combs’ residence, Andrew testified that he observed Combs
“laying on his bed in his shirt and underwear, fondling himself, looking at his phone.” He
stated that Combs was wearing a red shirt and dark underwear at the time. Andrew
testified that prior to leaving, he said goodbye to Sonia, who was sharing a bed with Emily.
{¶ 11} Andrew testified that when Jenna brought Sonia home, he and Kristy were
in the living room, and Sonia started crying. When they asked her why she wanted to
come home, Sonia told them that “she had woke up and [Combs] was touching her.”
During questioning by the prosecutor, Andrew stated that he asked Sonia to explain
exactly what had happened, and she said, “she woke up and he was next to her.”
Defense counsel objected to this testimony as hearsay, and the court sustained the
objection, saying “I don’t think this is an excited utterance anymore.” At sidebar, the
prosecutor argued that courts have held that “excited utterance and present sense
impression has a longer duration for a child, because children take longer to process
events.” The State also argued that, because defense counsel had inquired of Kristy
about statements that Sonia had made to her after the statement made to Andrew, then
“the more immediate present sense impression statements to [Andrew] should be
allowed.” The court pointed out that no objection had been made to Kristy’s testimony,
and defense counsel withdrew the objection.
{¶ 12} Andrew testified that, after Kristy and Jenna left to confront Combs, Sonia
told him that “she had woke up and Paul [Combs] was next to her with his hand on her”
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and that he was masturbating; Andrew asked what Combs had been wearing, and Sonia
said “a red shirt and dark underwear.” When Kristy and Jenna returned to the home,
Andrew asked Sonia to tell them what she had told him to “see whether everything still
lined up.” Andrew testified that Jenna then woke her daughters up and took them home.
{¶ 13} On cross-examination, Andrew testified that he observed Combs on his
phone in his bedroom while Kristy and Jenna were in the kitchen talking. He stated, “I
went to talk to him some more. When I walked in, that’s what he was doing.” Regarding
the girls’ sleeping arrangement, Andrew testified that Sonia “was against the wall, but I
don’t remember for sure.” He stated that the police responded to his home the evening
after the incident and took statements from his family, and he identified his statement.
Andrew acknowledged that his statement indicated that Sonia told him that Combs was
in bed between Sonia and Emily
{¶ 14} On redirect examination, Andrew testified that Sonia had come home in the
course of a sleepover before, but that in those cases he and Kristy had picked her up
because she “just didn’t want to stay the night or wasn’t feeling well”; she has never come
home crying from a sleepover until she stayed at the Combs’ home.
{¶ 15} Sonia, who was in the sixth grade, testified that she met Combs one time at
his home. She stated that Kristy brought her pajamas to wear and asked her if she “really
wanted to stay here,” to which Sonia said yes. Sonia testified that she and Emily fell
asleep in the same bed, with Emily next to the wall; Emily fell asleep first, then Sonia
heard Combs and Jenna arguing, and her mom “was trying to calm them down.” Sonia
testified that she later woke up to Combs kneeling next to the bed and touching her “boob”
and her “vagina” with his hands over a thin blanket. Sonia stated that Combs was
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mumbling, and she could not understand him. She believed he was drunk. Sonia
described his touching her as “patting, like back and forth” between her breast and vagina.
Sonia testified that Combs “pat more than one time,” then he left the room and went to
the bathroom. Sonia testified that when he came out of the bathroom, she was “pretty
sure” she said something like “get off of me” or “stop it, and stuff.” She stated that the
first time it happened, she was scared and “didn’t know what to say.”
{¶ 16} Sonia testified that she had tried to wake Emily but was unable to do so.
Sonia testified that, when Combs went into the bathroom again, she went to Jenna and
asked her to call Sonia’s mom, but Kristy did not answer. Jenna sent Kristy a text, told
Sonia to go back to bed, and said she (Jenna) would let Sonia know if Kristy responded.
Sonia testified that she did not tell Jenna what Combs had done because she “was too
scared to.”
{¶ 17} Sonia went back to bed. She testified that she covered herself with the
blanket when she got back in bed “just in case he tries.” She stated that she believed
that Combs “got a beer out of the kitchen, or something like that,” and then he came back
into her room, kneeling next to the bed. Sonia testified she “was trying to scooch toward
[Emily].” She testified that Combs told her to “look,” and she told him to go away. Then
she “like, screamed at him, and he ran up.” When asked if Combs tried to show her
something, Sonia responded, “I’m pretty sure his, like, penis,” which he was holding with
both hands outside of his clothing. Sonia described it as “light pink.” Sonia testified that
she “ran out of the room and Iike was crying, trying to get * * * out of the [front] door” to
run home, but the door wouldn’t open. Jenna heard her “crying and screaming” and
asked her if she was okay. Sonia responded, “no, I’m not okay. Paul was touching me.”
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Sonia stated that she asked Jenna if Jenna was okay to drive, because Sonia was “pretty
sure she was drunk also,” but Jenna said she was fine and took Sonia home. Sonia
testified that she was taken to CARE House after the police were notified.
{¶ 18} On cross-examination, Sonia testified that the first time Combs came into
the room and touched her, she quietly told him to “get off of me,” and that Emily did not
wake up. She stated that Combs then left to “use the bathroom or get a beer.” The
following exchange occurred between Sonia and defense counsel:
Q. * * * So do you know how many times he came into the room?
A. Four, I think?
Q. Four times?
A. * * * I’m pretty sure the fourth time I, like ran out.
Q. * * * But it might have been the fifth time?
A. Yeah. I can’t really remember all that happened since it was a
while ago.
Q. * * * So was every time he came in, did the same thing happen?
A. Yeah, he kept on, like touching me.
***
A. The first couple times I didn’t yell at him because I didn’t know
what to do; I was nervous. But like, after that, I started to - - like, saying
get off of me, and then after all that, I just yelled at him and ran out.
Q. Did that wake up [Emily]?
A. No, I don’t - - well, it probably did, but I don’t know. I just ran
out of the room, crying, so I didn’t really see if she was awake. She
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probably did wake up, unless she’s a heavy sleeper.
Q. * * * Did Paul ever lay in the bed with you?
***
A. No.
Q. Did you ever tell anyone that Paul had laid in the bed with you?
A. I don’t think I did.
Q. Okay.
A. If I did, then I didn’t mean to say it.
***
Q. * * * So sometimes you say things that you don’t mean.
A. Or maybe they just didn’t understand me. * * *
***
A. * * * Or maybe they just thought I said that.
{¶ 19} On redirect-examination, Sonia testified that she was interviewed at CARE
House about what happened to her, and that in the course of the interview, she never
said that Combs got into the bed with her. A portion of the interview was played for the
jury. Sonia testified that her version of events in the interview and at trial were the same.
{¶ 20} Dr. Brenda Miceli, a pediatric psychologist at Dayton Children’s Hospital,
was designated as an expert in child sexual abuse and child psychology. She testified
that she was a psychologist on staff at CARE House, where she provided therapy,
psychological evaluations, and individual and family therapy to children who have
disclosed abuse or experienced other types of trauma. She identified CARE House as
a partnership between five agencies that provided “a comprehensive approach” to dealing
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with children who have disclosed sexual or extreme physical abuse. Miceli testified that
she works primarily with children who have experienced sexual abuse, having treated
over 2,000 victims.
{¶ 21} Miceli testified that a one-time encounter can qualify as sexual abuse. She
stated that, generally, child victims of sexual abuse experience a sense of helplessness,
because they have been taught to obey adults and do not know how to respond. She
stated that a “second dynamic” is secrecy, because sexual abuse usually does not “take
place where other people are going to be able to see it, and so a child feels bound by
secrecy oftentimes, which puts a lot of emotional pressure on a child.” Miceli testified
that disclosure of sexual abuse can be either accidental or purposeful, and that a
purposeful disclosure occurs “where a child makes a decision to tell someone.”
{¶ 22} According to Miceli, “most children don’t disclose immediately” because
they are afraid, embarrassed, and fear they will not be believed, will get into trouble, or
their abuser will harm them. She stated that the closer an abuser is to a child, the less
likely the child is to tell anyone, because “the ramifications of that are so much greater”;
if the abuser is new to the child’s life, disclosure could be easier. Miceli stated that she
had “heard of kids who’ve * * * reported abuse during sleepovers when other kids are
around.” Miceli stated that there “are lots of different ways that kids respond, and it
depends on kind of their personality. It depends on the situation that’s happened. It
depends on their coping skills.” She stated that she would not be surprised if a child who
was abused at a sleepover remained at the sleepover. She testified that children and
adults “have three typical stress responses. * * * [I]t’s flight, fight, and freeze. * * * And far
and away, most kids freeze.” According to Miceli, kids often don’t know what to do, and
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are “sort of [in] a state of shock almost,” and that if a child’s initial attempt to escape fails,
“then they almost always default to sort of what’s expected of them.”
{¶ 23} Miceli testified that “[f]ar and away, most children do not lie about sexual
abuse,” and that “in general, when kids lie, there’s a reason,” like to get out of trouble.
She also observed that, when kids lie about abuse, “over time, we tend to see
inconsistencies in their stories. What they say tends to vary from person to person or
from time to time. And sometimes they don’t provide as many details when they’re telling
something that’s not true.” Miceli stated that “over time, children tend to be more likely
to disclose more information. Sometimes * * * they’re more comfortable to give more
details over time, and depending on the relationship with the person that they’re talking
to.” She stated that the details of abuse that a child reveals can vary.
{¶ 24} Miceli testified that, at CARE House, the focus is to gather information “in
as neutral a way as possible.” She stated that, in the course of interviews, children
demonstrate “the full range of demeanors,” from being matter-of-fact and calm, to very
emotional, embarrassed, or silly, depending on the age and developmental stage of the
child.
{¶ 25} On cross-examination, Miceli stated that she had not interviewed any of the
witnesses in this case, and that her testimony reflected general patterns and was not
specific to Sonia. Miceli stated that she did not investigate the truthfulness of disclosures
in the course of her work.
{¶ 26} Finally, on redirect-examination, Miceli testified:
Q. So a child who is sexually abused at a sleepover, would the
important part of the story in a child’s mind be that he touched my vagina
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and he touched my breasts?
A. For most kids, that would be the important part.
Q. Maybe he showed me his penis?
A. That would – things that are outside the norm, outside the usual
experience.
Q. Would the important part be how many times he went from the
bathroom to the bedroom?
A. Probably not. Kids are not very good with numbers to begin
with.
***
Q. So a child who is 11 years old, who may not [be] 11 at
developmental age, might not be great with numbers?
A. Correct.
***
Q. * * * Is there a difference in a story that a child can tell when they
have experienced an event as opposed to when that event has been
created in their mind?
A. Typically there’s an emotional or a sensory component that can
be there, if it’s something they’ve experienced where the emotions that they
had of feeling afraid or worried or confused or feeling sick. Those can - -
that emotional piece or the sensory piece of knowing what something felt
like that they wouldn’t necessarily have if they haven’t experienced that.
{¶ 27} Detective Vincent Mason of the Kettering Police Department was assigned
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to Sonia’s case on November 5, 2018. He testified that he received statements from
Sonia’s parents and sister that were taken by the responding officer. Pursuant to policy,
the responding officer did not get a statement from Sonia because officers generally “don’t
talk to a child under 13. We don’t want to put * * * a thought in a child’s head.” Mason
testified that children generally are interviewed at CARE House, and he contacted CARE
House to set up an interview, which he observed from another room electronically.
{¶ 28} Mason testified that, after the interview, he contacted Combs, and Combs
and Jenna came to the police department to be interviewed. Mason testified that Combs
was “very cooperative and polite,” and he denied Sonia’s allegations. According to
Mason, Combs said that he was intoxicated on the night of the abuse, and that due to his
level of intoxication, he did not remember everything that happened that night. Combs
told Mason that “he’d been in the room to tuck his kid in a couple times,” that Emily was
asleep,” and that he may have “fallen over.” Mason testified that Combs “said he’s pretty
sure it did not happen.” Mason testified that, according to Combs, Combs was in the
bathroom when Sonia “came out” and “threw a fit,” after which Jenna took her home.
{¶ 29} Mason testified that he was able to confirm a number of details from Sonia’s
disclosure, such as who was present on the evening of the abuse, that the adults were
drinking alcohol and everyone had pizza, that Sonia was upset and asked to go home,
and that she was upset when she got home.
{¶ 30} At the conclusion of the State’s case, defense counsel moved for a
judgment of acquittal. The court overruled the motion.
{¶ 31} Emily was the only defense witness. When she testified, she was 12 years
old and in seventh grade. She stated that on the night of the incident, she, her younger
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sister, and Sonia played together until they went to bed. She stated that she and Sonia
slept together in a bed against the wall, and that Emily was closest to the wall. Emily
stated Combs and Andrew came into the room to say goodnight and to give them a
blanket. Emily testified that she had her first gymnastics competition the next day and
was trying to go to sleep. She stated that Sonia “went out into the living room or she
went and got my mom.” Emily was unsure of the details, but she thought Sonia ”got
scared or something and she wanted to go home and started crying.” Sonia did not
explain why she wanted to leave, she just said she was leaving.
{¶ 32} Emily testified that Combs did not enter her room after he came in and
gave the girls a blanket and told them goodnight. She testified that Jenna and Kristy
returned to the home and were yelling at her dad and asking him a bunch of questions
because Sonia “said * * * he touched her or something.” Emily stated that she just tried
to go back to sleep.
{¶ 33} On cross-examination, Emily testified that she and Sonia had slept in their
clothes. She stated that after Sonia left her room, Sonia only came back to get her
belongings, and that she did not lie down again. Emily testified that she was interviewed
at CARE House in March 2019. She stated that when Sonia was in the living room after
she left the bedroom, Combs was in the bathroom. Emily testified that her parents told
her not to discuss the matter at school or with counselors there. On redirect, Emily
testified that her parents told her to be truthful at CARE House and at trial.
{¶ 34} The jury was found Combs guilty of GSI, and the court sentenced him to
24 months in prison. He was also designated a Tier II sex offender.
{¶ 35} Combs asserts three assignments of error. For ease of analysis, we will
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consider Combs’s second and third assignments of error first and together.
THE TRIAL COURT ERRED IN DENYING THE CRIMINAL RULE
29 MOTION AND THE VERDICT IS NOT SUPPORTED BY THE
SUFFICIENCY OF THE EVIDENCE.
THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 36} In his second assignment of error, Combs asserts that there was “no
credible evidence” that he touched Sonia in any way, let alone in a manner that would
constitute “sexual conduct.” He argues that, even if the jury believed that he touched
Sonia, there was “absolutely no evidence” to prove that this touching “was on the
erogenous zone as that term has been defined.” Combs argues that Sonia testified that
what Combs allegedly touched was a blanket, “and not her erogenous zone,” and that
there was no evidence that any touching was for purposes of sexual gratification.
{¶ 37} In his third assignment of error, Combs asserts that there were “a number
of problems with the credibility or believability of the evidence” presented by the State.
He directs our attention to Kristy’s testimony that she was home for 40 minutes before
Jenna and Sonia arrived at her home around 3:00 a.m., and he asserts that this window
of time did not allow sufficient time for all the things that supposedly happened: all his
trips to the bathroom, getting into a twin bed between two girls, travel time, the gathering
of Sonia’s belongings, the texting between Kristy and Jenna, and “all of the other events
that are alleged to have occurred.” According to Combs, this alleged timeframe did not
“make sense” and cast reasonable doubt on the allegations set forth at trial.
{¶ 38} Combs also notes Kristy’s testimony that Jenna slapped Combs upon her
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return to the couple’s bedroom to awaken him, and he argues that it was implausible that
he was “asleep so deeply that he had to be smacked to be awoken by [Jenna]” if only 40
minutes had elapsed, as alleged. Combs asserts that Kristy’s testimony that he was
asleep in bed therefore undercut the testimony that he had been “roaming throughout the
house, constantly using the bathroom and going in and out of his daughter’s bedroom.”
Further, Combs notes Kristy’s testimony that he was in bed when she left the home and
upon her return, and he asserts that this evidence, “coupled with Jenna’s shock and his
shock and denial relating to the allegations,” cast reasonable doubt on the allegations.
{¶ 39} Combs points to conflicting evidence about which side of the bed Sonia was
sleeping on and observes that, if Sonia were against the wall, then the version of events
set forth by Sonia could not have been true. Combs also asserts that Sonia’s testimony
about the number of times he came into the room was inconsistent and not credible. He
directs our attention to Emily’s testimony that Combs “never re-entered her room after he
had come in to say goodnight and bring them a blanket,” and that she “was awake until
[Sonia] got up and left her house.”
{¶ 40} Although Combs moved for a Crim.R. 29 judgment of acquittal at the close
of the State’s case, the State points out that he did not renew this motion at the close of
all the evidence. “It is generally accepted in Ohio that if counsel fails to make and renew
a Crim.R. 29 motion during a jury trial, the issue of sufficiency is waived on
appeal.” State v. Hartings, 2d Dist. Montgomery No. 27471, 2018-Ohio-2035, ¶ 19, citing
State v. Beesler, 11th Dist. Ashtabula No. 2002-A-0001, 2003-Ohio-2815, ¶ 23.
However, even if Combs had renewed his Crim.R. 29 motion, we conclude that his
argument that his conviction for GSI was based upon insufficient evidence lacks merit.
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{¶ 41} The following is well-settled:
“A sufficiency of the evidence argument disputes whether the State
has presented adequate evidence on each element of the offense to allow
the case to go to the jury or sustain the verdict as a matter of law.” State
v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing
State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997). “When
reviewing a claim as to sufficiency of evidence, the relevant inquiry is
whether any rational factfinder viewing the evidence in a light most
favorable to the state could have found the essential elements of the crime
proven beyond a reasonable doubt.” (Citations omitted.) State v. Dennis,
79 Ohio St. 3d 421, 430, 683 N.E.2d 1096 (1997). “The verdict will not be
disturbed unless the appellate court finds that reasonable minds could not
reach the conclusion reached by the trier-of-fact.” (Citations omitted.) Id.
In contrast, “[a] weight of the evidence argument challenges the
believability of the evidence and asks which of the competing inferences
suggested by the evidence is more believable or persuasive.” (Citation
omitted.) Wilson at ¶ 12. When evaluating whether a conviction was
against the manifest weight of the evidence, the appellate court must review
the entire record, weigh the evidence and all reasonable inferences,
consider witness credibility, and determine whether, in resolving conflicts in
the evidence, 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.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio
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App.3d 172, 175, 485 N.E.2d 717 (1st. Dist. 1983). “The fact that the
evidence is subject to different interpretations does not render the
conviction against the manifest weight of the evidence.” State v. Adams,
2d Dist. Greene Nos. 2013 CA 61, 2013 CA 62, 2014-Ohio-3432, ¶ 24, citing
Wilson at ¶ 14.
“Because the trier of fact sees and hears the witnesses at trial, we
must defer to the factfinder's decisions whether, and to what extent, to credit
the testimony of particular witnesses.” State v. Moore, 2d Dist.
Montgomery No. 26304, 2016-Ohio-5267, ¶ 8, citing State v. Lawson, 2d
Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
“However, we may determine which of several competing inferences
suggested by the evidence should be preferred.” Id. “A judgment of
conviction should be reversed as being against the manifest weight of the
evidence only in exceptional circumstances.” Id., citing Martin at 175.
State v. Whitehead, 2d Dist. Montgomery No. 28334, 2019-Ohio-5141, ¶ 20-22.
{¶ 42} We have also observed:
“Although sufficiency and manifest weight are different legal
concepts, manifest weight may subsume sufficiency in conducting the
analysis; that is, a finding that a conviction is supported by the manifest
weight of the evidence necessarily includes a finding of sufficiency.”
(Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881,
2011-Ohio-3161, ¶ 11. Accord State v. Robinson, 2d Dist. Montgomery No.
26441, 2015-Ohio-1167, ¶ 17; State v. Putman-Albright, 2d Dist.
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Montgomery Nos. 26679, 2016-Ohio-319, ¶ 19. Consequently, “a
determination that a conviction is supported by the weight of the evidence
will also be dispositive of the issue of sufficiency.” (Citations omitted.) State
v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
State v. Winbush, 2d Dist. Clark No. 2016-CA-1, 2017-Ohio-696, ¶ 58.
{¶ 43} R.C. 2907.05, which proscribes GSI, states:
(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.
{¶ 44} R.C. 2907.01(B) defines “sexual contact” as “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.”
{¶ 45} We initially observe that Combs misrepresents the testimony herein in
arguing that he merely touched a blanket, not an erogenous zone of Sonia. Sonia
testified that Combs repeatedly touched her “boob” and “vagina” in a “patting” manner
over the blanket and that Combs exposed his penis to her and told her to look at it.
Andrew testified that he observed Combs in his bedroom fondling himself before Andrew
left Combs’ home. “The existence of prurient motivations may be discerned from the
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nature, type and circumstances of the defendant’s contact with the victim, along with the
personality of the defendant.” State v. Watkins, 2d Dist. Greene No. 94-CA-106, 1995
WL 386892, *4 (June 30, 1995). As in Watkins, the evidence in this case concerning the
type, nature, and circumstances of the contact manifested at the time of the offense
supported a reasonable inference that Combs’s purpose in touching Sonia was sexual
gratification. Id. The jury obviously credited the testimony of Sonia and Andrew, and
we defer to its assessment of credibility.
{¶ 46} Regarding Combs’s manifest weight of the evidence argument in his third
assignment of error, Kristy testified that she and Andrew were home “about 40 minutes
or so” before Sonia came home, and we cannot conclude that such an inexact time period
rendered Sonia’s account of Combs’s abuse and the other events that transpired within
that time somehow incredible. Although Sonia’s testimony was inconsistent regarding
the number of times Combs entered the room, Dr. Miceli testified that young children “are
not very good with numbers to begin with,” and that the details children provide regarding
their abuse can vary. As noted above, Sonia testified consistently that Combs entered
the bedroom and repeatedly touched her breast and pubic region.
{¶ 47} Regarding the fact the Combs may have been deeply asleep when Kristy
returned, suggesting that he had not left his bed since Andrew observed him there, we
note that Combs was intoxicated that night according to multiple witnesses, and Detective
Mason testified that Combs indicated he did not remember all of the evening due to his
intoxication. Finally, the jury was free to (and did) credit Sonia’s testimony over that of
Emily, who testified that Combs did not return to the room after giving the girls a blanket.
Mason testified that Combs himself reported that Emily had been sleeping when he
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entered her room “a couple of times” to tuck her in. We cannot conclude that the jury lost
its way in concluding that Combs did not simply remain in bed and abused Sonia.
{¶ 48} We conclude that a rational fact-finder could have found the essential
elements of gross sexual imposition proven beyond a reasonable doubt. Having
reviewed the entire record, and deferring to the jury’s assessment of witness credibility,
we cannot conclude that the jury lost its way in resolving conflicts in the evidence. In
other words, we conclude that Combs’s conviction was based on sufficient evidence and
was not against the manifest weight of the evidence. Combs’s second and third
assignments of error are overruled.
{¶ 49} Combs’s first assignment of error is as follows:
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE OHIO AND UNITED STATES
CONSTITUTION.
{¶ 50} Combs asserts that counsel committed multiple errors and that, but for
those errors, the result of the trial would have been different. Combs argues that defense
counsel was ineffective during Andrew’s testimony by allowing inadmissible and
prejudicial hearsay evidence to be presented to the jury, “despite the fact that the trial
court had given a ruling that this evidence was not admissible” against him. Combs
directs our attention to the exchange in Andrew’s direct examination, set forth above, in
which defense counsel withdrew his hearsay objection to statements Sonia made to
Andrew. According to Combs, a defense counsel’s withdrawal of the objection allowed
Andrew to testify about statements Sonia made, which were “inadmissible hearsay.” The
State responds that Sonia’s statements to Andrew qualified as an excited utterance, an
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exception to the hearsay rule, and that ineffective assistance is not demonstrated by
defense counsel’s failure to object to admissible testimony.
{¶ 51} Combs next asserts that counsel was ineffective in that he did “not voir dire
or even question the testimony of Dr. Miceli prior to her being permitted to speculate and
pontificate about generalities relating to alleged sexual abuse in a case where she knew
very few facts and had done little to no review of the actual allegations.” Combs asserts
that Miceli’s testimony constituted improper “vouching” for the child witness (Sonia) and
should have been objected to by trial counsel.
{¶ 52} Finally, Combs asserts that counsel was ineffective in failing of address
Sonia’s alleged mental health issues when cross-examining Sonia, in not offering an
expert on the influences that these conditions might have had on her actions in this case,
in not arguing this issue in closing argument “in any meaningful manner,” and in not asking
any questions of other relevant witnesses about this topic. Combs asserts that it was
“axiomatic” that these conditions were relevant, and that counsel “missed an opportunity
to explain why these allegations might have been made in the face of a complete lack of
physical evidence.”
{¶ 53} This Court has previously noted:
In order to succeed on an ineffective assistance claim, [a defendant]
must show that his trial counsel rendered deficient performance and that
counsel's deficient performance prejudiced him. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish
deficient performance, [a defendant] must prove that his trial counsel's
performance fell below an objective standard of reasonable representation.
-23-
Id. at 688; State v. Bradley, 42 Ohio St. 3d 136, 142, 538 N.E.2d 373 (1989).
In evaluating counsel's performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances the challenged action ‘might
be considered sound trial strategy.’ ” Strickland at 689, quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955).
To show prejudice, [a defendant] must establish that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. State v. Hale, 119 Ohio
St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-
688, 694; Bradley at paragraph two of the syllabus. The failure to make a
showing of either deficient performance or prejudice defeats a claim of
ineffective assistance of counsel. Strickland at 697.
State v. Hartman, 2d Dist. Montgomery No. 27162, 2017-Ohio-7933, ¶ 30-31.
{¶ 54} Regarding Combs’s argument about inadmissible hearsay, Evid.R. 801(C)
provides: “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
“Hearsay is not admissible except as otherwise provided by the Constitution of the United
States, by the Constitution of the State of Ohio, by statute enacted by the General
Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by
other rules prescribed by the Supreme Court of Ohio.” Evid.R. 802.
{¶ 55} Evid.R. 803 provides:
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The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
***
(2) Excited Utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement
caused by the event or condition.
{¶ 56} This Court has noted:
For a statement to be admissible as an excited utterance, four
prerequisites must be satisfied: (1) the occurrence of an event startling
enough to produce a nervous excitement in the declarant; (2) a statement
made while still under the stress of excitement caused by the event; (3) a
statement related to the startling event; and (4) the declarant's personal
observation of the startling event.
State v. Abner, 2d Dist. Montgomery No. 20661, 2006-Ohio-4510, ¶ 69, citing State v.
Taylor, 66 Ohio St. 3d 295, 300-301, 612 N.E.2d 316 (1993).
{¶ 57} This Court has further noted:
The excited utterance exception to the hearsay rule should be
applied liberally in a case involving the sexual abuse of a young child.
State v. Boston, 46 Ohio St. 3d 108, 118, 545 N.E.2d 1220 (1989). This is
based upon the age of the child, the shocking nature of the act, and the
surprising nature of the assault. Id.
The passage of time between the event and the child's out-of-court
statement, while obviously a factor, is not dispositive. Even when the
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statement is made after a substantial lapse of time, it may be admitted under
the excited-utterance exception. [State v. Taylor], 66 Ohio St. 3d 295, 303-
304 [612 N.E.2d 316] (1993). Where a young child claims to have been
the victim of a sexual assault, the test for admission of the child's statements
does not focus upon the progression of the startling event or occurrence,
but upon the spontaneous nature of the child's statement. State v. Huntley,
2d Dist. Montgomery No. 23545, 2010-Ohio-6102, ¶ 35. Children are likely
to remain in a state of nervous excitement longer than would an adult, and
therefore it has been held that admission of statements of a child regarding
sexual assault may be proper under the excited utterance exception even
when they are made after a substantial lapse of time. Taylor [at, 304].
The Ohio Supreme Court also held in Taylor that there is no per se amount
of time after which a statement can no longer be considered to be an excited
utterance; the central requirements are that the statement must be made
while the declarant is still under the stress of the event and the statement
may not be a result of reflective thought. Id.
In re S.H.W., 2d Dist. Greene No. 2015-CA-25, 2016-Ohio-841, ¶ 22-23.
{¶ 58} We conclude that Sonia’s statements to Andrew were admissible as an
excited utterance. Having sexual contact with Combs was startling enough to produce
a nervous excitement in Sonia, she remained under the stress of the event after the brief
ride home with Jenna, and she related her observation of the event to Andrew shortly
thereafter. An “attorney does not provide deficient representation by failing to object to
admissible testimony. Moreover, no prejudice can result from an attorney's failure to
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object to such testimony.” State v. Ross, 2d Dist. Montgomery No. 19036, 2002-Ohio-
6084, ¶ 21. Because the testimony was admissible, Combs has not established that
prejudice resulted from defense counsel’s withdrawal of his hearsay objection to Andrew’s
testimony or that counsel was ineffective in this regard.
{¶ 59} Regarding defense counsel’s failure to object to Dr. Miceli’s testimony or
further inquire as to her qualifications, Miceli testified that she had been designated an
expert witness in child psychology and child sexual abuse in multiple courts, having
treated over 2,000 victims in the course of her career. She also provided extensive
information regarding her education and experience. Defense counsel was not
ineffective for choosing, for tactical or other reasons, not to disrupt the flow of trial to
conduct more extensive voir dire of Dr. Miceli about her qualifications. See State v.
McMurray, 12th Dist. Preble No. 2014-08-008, 2015-Ohio-2827, ¶ 35.
{¶ 60} Further, Evid. R. 702 provides:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony * * * relates to matters beyond the knowledge or
experience possessed by lay persons * * * ;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
testimony;
(C) The witness' testimony is based on reliable scientific, technical, or other
specialized information. * * *
{¶ 61} The Ohio Supreme Court has held that an expert witness's testimony that
the behavior of an alleged victim of sexual abuse is consistent with behavior observed in
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other sexually abused children is admissible under the Ohio Rules of Evidence. In re
Rooney, 8th Dist. Cuyahoga No. 77212, 2000 WL 1513776, *4, citing State v. Stowers,
81 Ohio St. 3d 260, 261, 690 N.E.2d 881 (1998). An expert psychologist's training and
professional experience provide the expert with specialized knowledge of the kind
recognized under Evid.R. 702 that the average person lacks about behavioral
characteristics of minor victims of sexual abuse. State v. Bell, 176 Ohio App. 3d 378, 2008-
Ohio-2578, 891 N.E.2d 1280, ¶ 56 (2d Dist.), citing Stowers; State v. Artz, 2015-Ohio-
5291, 54 N.E.3d 784, ¶ 57 (2d Dist.). “However, ‘[w]hat an expert may not do is offer a
direct opinion on whether a child is telling the truth.’ “ Artz, citing State v. Rosas, 2d Dist.
Montgomery No. 22424, 2009-Ohio-1404, ¶ 42, citing State v. Boston, 46 Ohio St. 3d 108,
545 N.E.2d 1220 (1989), syllabus.
{¶ 62} Dr. Miceli did not specifically opine as to Sonia’s truthfulness, having never
met her, treated her, or been involved in this matter beyond her general testimony, and
her testimony was admissible under Evid.R. 702. Ineffective assistance is not
demonstrated in defense counsel’s failure to object to her testimony.
{¶ 63} Finally, as noted above, Kristy testified regarding Sonia’s global disability
disorder, noting that she was high functioning, able to speak well, and capable of doing
things for herself. Sonia’s testimony confirmed this. Defense counsel may have
reasonably decided as a matter of sound trial strategy not to suggest, by means of expert
testimony, that Sonia’s credibility was impugned by her disability. “We can only
speculate as to the effect that [any] expert testimony may have had on the jury's
determination, and speculation cannot establish a reasonable probability that the
outcome of the trial would have been different.” State v. Combs, 2d Dist. Montgomery
-28-
No. 22712, 2009-Ohio-1943, ¶ 16, citing State v. Madrigal 87 Ohio St. 3d 378, 390-392,
721 N.E.2d 52 (2000); see also State v. Berila, 9th Dist. Medina No. 19CA7000-M, 2020-
Ohio-3523, ¶ 38; State v. Hanford, 9th Dist. Summit, No. 29204, 2019-Ohio-2987, ¶ 37
(when the trial record is silent regarding the substance of a potential expert’s testimony,
establishing prejudice under Strickland requires proof outside of the record, and the claim
is therefore not appropriately considered on direct appeal.) “Furthermore, the supreme
court has concluded that counsel's failure to call an expert and his decision to rely instead
upon cross-examination does not constitute ineffective assistance of counsel.” (Citation
omitted.). Combs at ¶ 16. For the foregoing reasons, we conclude that ineffective
assistance of counsel is not demonstrated, and Combs’s first assignment of error is
overruled.
{¶ 64} Having overruled Combs’s assignments of error, the judgment of the trial
court is affirmed.
............
FROELICH, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Jay A. Adams
Hon. Timothy N. O’Connell