State v. Williams , 2022 Ohio 2245 ( 2022 )

[Cite as State v. Williams, 2022-Ohio-2245.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2021CA00081
:
MICHAEL WILLIAMS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2020CR0398
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 29, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KYLE L. STONE KRISTIN L. ZALENSKI
STARK CO. PROSECUTOR 122 Central Plaza North
TIMOTHY E. YAHNER Suite 101
110 Central Plaza South, Ste. 510 Canton, OH 44702
Canton, OH 44702-1413
Stark County, Case No. 2021CA00081 2
Delaney, J.
{¶1} Appellant Michael Williams appeals from the June 29, 2021 judgment entry
of conviction of the Stark County Court of Common Pleas, incorporating the trial court’s
Judgment Entry of October 27, 2020 finding the minor child victim competent to testify.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶1} This case arose in September 2019 when Jane Doe, age 6 at the time,
disclosed to an uncle that her stepfather sexually abused her.1 The following evidence is
adduced from the record of appellant’s jury trial, video depositions, and an evidentiary
and competency hearing pursuant to State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-
2742, 933 N.E.2d 775. Where pertinent, the source of the evidence is cited.
Testimony of Doe’s uncle: initial disclosure
{¶2} T.J. is the uncle of victim Jane Doe.2 In September 2019, T.J. had a
birthday party for his daughter at his home in Akron and Doe attended. T.J. testified that
he was on his front porch, talking to another adult about appellant, and Doe overheard
the conversation. Doe came over to T.J., sat down beside him on the step, hugged and
kissed him, and whispered to him that she wanted to tell him a secret. T.J. then testified
as follows:
She told me that her daddy used to make her do things to her
(sic in original). And—I had trouble hearing her at first so I asked her
1Appellant is sometimes referred to by Doe and other witnesses as her “father,” but he
was her stepfather at the time of the alleged abuse.
2 T.J.’s testimony was taken via video deposition in October 2020 because he was
awaiting deployment to Texas as a member of the Army National Guard.
Stark County, Case No. 2021CA00081 3
to repeat what she said. She said that her daddy used to make him—
make her touch him, and I asked her what do you mean, and he
said—she said that he would put a black cap over her head and
insert his penis into her mouth.
Video deposition of T.J., 11.
{¶3} After the initial disclosure, T.J. reacted with shock and asked Doe to repeat
what she said. When the disclosure was made, Doe’s Mother was at a store a short
distance away with T.J.’s wife. T.J. called Mother, told her to come home immediately,
and advised her of the disclosure. Upon Mother’s return, T.J. testified she was crying
hysterically, with her head on the dashboard of the vehicle. The family attempted to report
Doe’s disclosure to Akron police, but was referred to Canton because the offense
occurred there.
{¶4} Upon cross examination, T.J. testified he sees Doe four or five times per
year, during family holidays, together with the rest of the family. When queried why Doe
would choose to disclose to him, T.J. speculated that she is comfortable with him. When
asked whether his immediate response to Doe’s disclosure was “You’re lying,” T.J.
agreed that it may have been, but the reaction indicated his shock at the statement, not
his disbelief.
Investigation by the Stark County Sheriff’s Department
{¶5} The reported offense occurred while Mother was married to appellant and
appellant was Doe’s stepfather. The family lived on 30th Street in Canton, Ohio, in Plain
Township, Stark County, and within the jurisdiction of the Stark County Sheriff’s
Department. Deputy John Von Spiegel, the detective in charge of child sex abuse
Stark County, Case No. 2021CA00081 4
investigations, was advised of the reported sexual assault. Spiegel’s contact with the
family occurred through the Stark County Children’s Network. Doe was referred for an
appointment which will be described infra. Von Spiegel conducted a taped interview of
appellant in which appellant denied all sex abuse allegations. Von Spiegel testified he
did not collect evidence because Mother and appellant had broken up 10 to 11 months
prior to the disclosure and were no longer living together. Nor did any parties live at the
30th Street address. Von Spiegel did not personally interview Doe because all
investigative parties use a forensic interview at the Children’s Network which will be
described infra. Von Spiegel could not recall whether he spoke to Mother in person or by
telephone, but recalled viewing Doe’s taped forensic interview after it took place.
Evaluation of Doe at the Stark County Children’s Network
{¶6} Doe’s appointment at the Stark County Children’s Network occurred on
September 16, 2019. Evidence arising during this appointment was admitted through the
testimony of Certified Nurse Practitioner Alissa Edgein, who testified at the
Arnold/competency hearing and at trial via video deposition.
{¶7} Edgein is employed by the Akron Children’s Hospital Child Abuse Unit and
works from the office of the Stark County Children’s Network in Canton. Edgein was
accepted by the trial court as an expert in the area of medical diagnosis of child sexual
abuse.
{¶8} Edgein testified the Stark County Children’s Network exists to
comprehensively address allegations of child sexual abuse. Children are referred to the
network from a number of sources not limited to Children’s Services, pediatricians,
emergency room admissions, and law enforcement. When a referral is made, a protocol
Stark County, Case No. 2021CA00081 5
is followed with a team approach. The team includes an assigned caseworker from
Children’s Services; a medical professional such as Edgein; a dedicated neutral forensic
interviewer; the investigating law enforcement officer; a victim advocate; and a peer
navigator who assists the victim’s family with community resources.
{¶9} According to protocol, the child is scheduled for an appointment at the
Network. The team meets to discuss potential issues in the case. On the day of the
appointment, the parent or guardian is first interviewed to obtain a history of the child and
the allegations. Then a dedicated forensic interviewer speaks to the child alone; the
interview is videotaped and watched by the team live on closed-circuit television. Then
the medical professional asks the patient any follow-up questions for the medical history.
Next, the nurse performs a medical exam, then meets with the parent or guardian to
discuss follow-up and recommendations for treatment. Finally, the patient is discharged.
Forensic interview
{¶10} Edgein and Von Spiegel both testified to the protocol for the forensic
interview at the Stark County Children’s Network, which is designed to limit how many
times a child must repeat the history of the alleged abuse. The forensic interviewer is a
trained, neutral party, not associated with law enforcement, who questions the child on
behalf of the entire team. Members of the team can watch the interview live via closed-
circuit television, or watch the videotaped interview afterward. Before the interview
concludes, the interviewer briefly leaves the room to ask team members whether they
have any additional questions to present to the child.
Stark County, Case No. 2021CA00081 6
{¶11} In the instant case, Edgein observed the forensic interview of Doe via
closed circuit television. She used certain portions of the forensic interview in making a
diagnosis after Doe’s evaluation.
{¶12} A transcript of the forensic interview was reviewed at the
Arnold/competency hearing. Portions of the forensic interview were played at trial during
Edgein’s testimony. On October 27, 2020, the trial court issued a Judgment Entry
determining which portions of the transcript of the forensic interview are non-testimonial
and which are testimonial. The non-testimonial portions were deemed to be for purposes
of medical diagnosis and treatment, and therefore admissible at trial.
{¶13} The following pertinent portion of the transcript of the forensic interview
contains the portions deemed admissible by the trial court (including those later redacted),
and the portions deemed inadmissible but challenged in this appeal, which are italicized.
Transcription of Video Interview of [Jane Doe]
Location: Stark County Children’s Network
By: Alicia Campbell
Date of Interview: September 16, 2019
* * * *.
Interviewer: * * * *. So why is your one dad in jail? [Highlighted
then redacted by trial court.]
Doe: Because he hurt my mommy bad, and he hurt me. And
there’s something else. Do you want me to say it out loud?
[Highlighted then redacted by trial court.]
Interviewer: Sure. [Highlighted then redacted by trial court.]
Stark County, Case No. 2021CA00081 7
Doe: Uh, do the cameras hear everything?
Interviewer: Uh-huh. (Nods head yes.
Doe: (Whispers) My dad stuck his penis in my mouth.
Interviewer: Your dad stuck his penis in your mouth?
Doe: (Nods head yes.)
Interviewer: Okay. Did that happen one time or was it more
than one time?
Doe: Another time—every day when I get off school when
mommy leaves.
Interviewer: Okay. It happened every day when you got off
school?
Doe: When mommy leaves.
Interviewer: Okay. How old were you the first time that
happened?
Doe: Five.
Interviewer: Five. How old--
Doe: I think. I think I was three. I don’t know.
* * * *.
Interviewer: So the first time that this happened with your dad-
-
Doe: Yeah.
Interviewer: Where did it happen at?
Doe: Home. Home.
Stark County, Case No. 2021CA00081 8
Interviewer: Is--
Doe: We just moved because we got in a shelter—we—and
then we just get here. What comes after green? [Highlighted then
redacted by trial court.]
Interviewer: * * * *. Um so what home did that happen at?
Doe: My old home.
Interviewer: Your old home?
Doe: Uh-huh.
Interviewer: Okay. What city was that in?
Doe: Canton.
Interviewer: Canton. Okay. So tell me about the first time
this happened with your dad.
Doe: Um he called me by name and did it. And then he put a
hat over my head. It was black.
Interviewer: Okay.
Doe: Done.
Interviewer: Where did he call you into?
Doe: His room.
* * * *.
Interviewer: So was anybody else in his room whenever he
called you in there?
Doe: No.
Interviewer: No. Where was he at when you went in there?
Stark County, Case No. 2021CA00081 9
Doe: He was on the bed and did it.
Interviewer: Did he have clothes on or were they off or
something else?
Doe: His clothes were on.
Interviewer: On. And he was on the bed?
Doe: Yeah.
Interviewer: Was he sitting or was he sta—or laying or
something else?
Doe: Sitting.
Interviewer: Sitting.
Doe: But I sat in a really, really small chair.
Interviewer: You sat in a really, really small chair?
Doe: Uh-huh.
Interviewer: Where at?
Doe: Uh, in his room.
Interviewer: Okay, so he was sitting on the bed. Where was
your really small chair at?
Doe: Uh on the bed.
Interviewer: On the bed. Okay. And then did you have
clothes on or were they off or something else?
Doe: My clothes were on.
Interviewer: Okay. So um what is a penis used for?
Doe: Going peeing and pooping.
Stark County, Case No. 2021CA00081 10
Interviewer: Going peeing and pooping. Okay. And you said
that he put a black hat on you?
Doe: Uh-huh.
Interviewer: What kind of hat was it?
Doe: Um it had letters on it.
Interviewer: What letters?
Doe: Um I don’t remember.
Interviewer: Okay. So was it like a baseball hat, was it a
winter hat or something else?
Doe: No, it was a black, black hat--
Interviewer: Black--
Doe: With, with a white dark, dark white um letters.
Interviewer: Okay and um you said he had clothes on?
Doe: Uh-huh.
Interviewer: So tell me more about how his penis went into
your mouth if he had clothes on.
Doe: He took them off when I, when he put the hat on me.
Interviewer: Okay. Did he say anything to you when that
happened?
Doe: No.
Interviewer: Did you say anything to him?
Doe: No. He said “Want some candy?”—put the hat over me,
and then at the end he gave me a Popsicle to make my throat better.
Stark County, Case No. 2021CA00081 11
Interviewer: To make your throat better?
Doe: Uh-huh.
Interviewer: So he said, “Do you want some candy,” then he
put the hat on and then put his penis in your mouth?
Doe: (Nods head yes.)
Interviewer: Okay.
Doe: It happened when mommy was at the store. Mommy’s
not here, bla, yada.
Interviewer: Where were your sister and your brother?
[Highlighted then redacted by trial court.]
* * * *.
Interviewer: * * * *. So did you see your dad’s penis?
Doe: No. Like I said he put a hat over me.
Interviewer: A hat over you?
Doe: Uh-huh.
Interviewer: So what was the hat covering?
Doe: My whole face.
Interviewer: Oh your whole face. Okay.
Doe: Blue…
Interviewer: How do you know that it was his penis that went
inside your mouth?
Doe: It was long. Popsicles are not long; candy is not long.
Stark County, Case No. 2021CA00081 12
Interviewer: Okay. Was anything on his penis when that
happened?
Doe: No.
Interviewer: Okay. Did anything come out of his penis?
Doe: No.
Interviewer: No.
Doe: But a little drop of—(whispers) you know pee.
Interviewer: A little drop of pee?
Doe: (Nods head yes.)
Interviewer: Okay.
Doe: And I coughed.
Interviewer: And you coughed?
Doe: Uh-huh. I did not know what that was. I thought it was
juice he just put in my mouth.
Interviewer: You didn’t know that juice was going in your
mouth?
Doe: I knew—I thought it was juice, but it tasted like bleck. *
* * *.
* * * *.
Interviewer: * * * *. So after this was done with dad you said
he gave you a popsicle?
Doe: Uh-huh.
Interviewer: To make your throat feel better?
Stark County, Case No. 2021CA00081 13
Doe: Uh-huh.
Interviewer: What was going on with your throat?
Doe: Uh, my throat was hurting a little.
Interviewer: What made it hurt?
Doe: Uh, it hurt from um the, the stuff in my mouth. It hurt.
Interviewer: What stuff in your mouth?
Doe: The pee.
Interviewer: Oh the pee. Okay. Um what kind of popsicle did
you get?
Doe: Uh blue, red, purple, pink, blue even. We have the
regular kind. Yeah that kind.
Interviewer: Okay. After um, after that and you got the
popsicle, what did dad do?
Doe: Well he did it again.
Interviewer: The same day or a different day?
Doe: The same day.
Interviewer: Same day. Okay.
Doe: Every time when mom says, “I’m leaving to go do stuff.
I’m leaving to go do stuff.”
Interviewer: Okay. So we talked about it happening in his
bedroom; did it ever happen anywhere else?
Doe: No.
* * * *.
Stark County, Case No. 2021CA00081 14
Interviewer: So in here, I talk to kids about um your private
parts to make sure that your private parts are safe. So how many
private parts do you have on your body? [Highlighted then redacted
by trial court.]
Doe: Oh 2. [Highlighted then redacted by trial court.]
Interviewer: What are the names of them? [Highlighted then
redacted by trial court.]
Doe: Well, vagina, vulva, and butt. [Highlighted then redacted
by trial court.]
Interviewer: Okay. So what is a butt used for? [Highlighted
then redacted by trial court.]
Doe: Uh like poop. [Highlighted then redacted by trial court.]
Interviewer: And what is a vagina used for? [Highlighted then
redacted by trial court.]
Doe: Like pee. [Highlighted then redacted by trial court.]
Interviewer: And what is a vulva used for? [Highlighted then
redacted by trial court.]
Doe: That’s a really simple question. [Highlighted then
redacted by trial court.]
Interviewer: What’s the answer? [Highlighted then redacted
by trial court.]
Doe: I do not know. [Highlighted then redacted by trial court.]
Stark County, Case No. 2021CA00081 15
Interviewer: Where is a vulva at on your body? [Highlighted
then redacted by trial court.]
Doe: Uh, uh do not know. [Highlighted then redacted by trial
court.]
Interviewer: Okay. Has anyone ever touched or hurt your
butt? [Highlighted then redacted by trial court.]
Doe: Nope. [Highlighted then redacted by trial court.]
Interviewer: Has anyone ever touched or hurt your vagina?
[Highlighted then redacted by trial court.]
Doe: No. [Highlighted then redacted by trial court.]
Interviewer: Has anyone ever touched or hurt your vulva?
[Highlighted then redacted by trial court.]
Doe: No. [Highlighted then redacted by trial court.]
Interviewer: Okay.
Doe: I try not to yell. Evelyn…All my sisters say simpler
questions and sounds like it’s my sisters.
Interviewer: Oh.
Doe: And I keep her—hearing really, really weird noises that
people don’t want me that, that say “[Jane].”
Interviewer: You hear those voices?
Doe: Uh-huh.
Interviewer: Where are the voices coming from?
Stark County, Case No. 2021CA00081 16
Doe: I don’t know. Everyone calls me for anything, and like
this is creepy. Super, super creepy.
Interviewer: Have you told anybody about that?
Doe: Yeah.
Interviewer: Who have you told?
Doe: No one.
Interviewer: No one. Okay.
Doe: How do you make these?
Interviewer: Un just kind of make little lines. Want to copy it?
Doe: Mm yeah.
Interviewer: So have you ever had to touch your dad’s penis
with anything other than your mouth?
Doe: No.
Interviewer: No.
Doe: Woosh. Okay.
Interviewer: Did you ever tell anyone about what was
happening?
Doe: I did but they…No I didn’t. Maybe at my cousin’s party.
Interviewer: At your cousin’s party?
Doe: Uh-huh.
Interviewer: Who did you tell?
Doe: Um my uncle.
Interviewer: What’s his name?
Stark County, Case No. 2021CA00081 17
Doe: (inaudible)
Interviewer: You what?
Doe: I forget.
Interviewer: Oh you forget? Okay. And what was going on
you decided to tell your uncle?
Doe: I just told him and he, he’s like, “You’re lying.” I said, no
I’m not.
Interviewer: Okay. Have you and your dad ever talked about
what was happening?
Doe: No.
Interviewer: Did you ever see dad do that to anyone else?
[Highlighted then redacted by trial court.]
Doe: No. He didn’t do it at—when my mommy got pregnant.
[Highlighted then redacted by trial court.]
Interviewer: He didn’t do it when mommy got pregnant?
[Highlighted then redacted by trial court.]
Doe: No. [Highlighted then redacted by trial court.]
Interviewer: Okay. Well tell me about the last time when it
happened with your dad.
Doe: The last time?
Interviewer: Yep.
Doe: Uh he did it when I stopped going to school. That’s
when he got in jail. Yesterday he—Well not yesterday. I forget when
Stark County, Case No. 2021CA00081 18
he goes to jail. [Underlined portion highlighted then redacted by trial
court.]
Interviewer: So it stopped happening when he went to jail?
[Highlighted then redacted by trial court.]
Doe: Uh-huh. [Highlighted then redacted by trial court.]
* * * *.
Interviewer: So the question I have right now: Has something
like this ever happened to you with anybody other than your dad?
Doe: No it only happened with daddy.
* * * *.
Doe: Okay. Oh and there’s one more thing. My dad told me
to hurt our little puppy, and now he moved.
Interviewer: Who moved?
Doe: Our puppy.
Interviewer: Okay.
Doe: And now we got a new dog.
Interviewer: What did your dad tell you to do--
Doe: We have like, um, we have, we have a dog named
Wiggles, and a little puppy named Pepperjack.
Interviewer: Okay. What did dad tell you to do to your dog?
Doe: Uh he said to go grab a um stuffed animal and I did. So
I walked over and grabbed a stuffed animal and then he, and then
he took the stuffed animal and then he went like this, and then he
Stark County, Case No. 2021CA00081 19
told me to pick up the doggy, and then he shook him, and I’m like
ummm I don’t want to…
Interviewer: Did you do that?
Doe: Yeah he told me to. He cried.
Interviewer: Who cried?
Doe: The puppy. He had, he told me to be mean mouth so I
did.
Interviewer: And now the dog is somewhere else?
Doe: Uh-huh.
Interviewer: Okay.
Doe: Because of him. I was going to say, “Can we keep the
dog?” and they, they said, “You have to leave and no one steps on
him.” He’s tiny. He’s like this small.
Interviewer: Oh yeah?
Doe: He’s a puppy.
Interviewer: Okay.
Doe: Her mom is not here.
Interviewer: Did anybody know that you had to do that to your
puppy?
Doe: No one. No one.
Interviewer: No one. Okay. All right. Well thanks for talking
with me today. * * * *.
* * * *.
Stark County, Case No. 2021CA00081 20
Physical exam and diagnosis: evaluation consistent with child sexual abuse
{¶14} After the forensic interview concluded, Edgein performed a physical
examination of Doe, age 6 at the time. Edgein testified a child’s age is key to the
questions she asks and descriptions she expects to receive. She asked Doe about any
health problems she was experiencing, and Doe described dysuria (burning during
urination) and bed-wetting. The bed-wetting behavior began at age 4, which was noted
by Edgein because regression in childhood developmental milestones can be an indicator
of abuse. The exam revealed “no concerning physical findings;” in other words, the exam
revealed no physical evidence of childhood sexual abuse. Edgein testified she was not
surprised by the findings and based upon the allegation of oral sexual abuse, she would
not have expected to find evidence of genital trauma.
{¶15} Ultimately Edgein diagnosed the evaluation of Doe as consistent with child
sexual abuse. The alternative diagnoses would be that the evaluation is indeterminate
or inconclusive, which requires further investigation to make a diagnosis, or the evaluation
is not consistent with sexual abuse. Doe’s diagnosis is based upon the forensic interview
and the physical exam, even though there were no physical findings. The primary basis
of Edgein’s diagnosis was Doe’s statements in the forensic interview. Edgein cited the
circumstances surrounding the abuse in which appellant called Doe into his bedroom,
placed her in a “little chair,” and put a hat over her face; Doe’s description of appellant
placing his penis in her mouth; Doe’s description of tasting “pee” or “juice,” something
“gross” in her mouth; and Doe’s statement that her throat hurt afterward and appellant
gave her a popsicle. Edgein noted it was important that Doe provided clear, consistent
detail surrounding the incident.
Stark County, Case No. 2021CA00081 21
{¶16} Edgein’s recommendations for further treatment included testing for
sexually-transmitted diseases; the test results were negative.
{¶17} Upon cross examination, Edgein said she did not question Doe about the
allegations herself, instead relying upon the forensic interview. Edgein said she was
unaware of some inconsistencies in details of the incident in Doe’s retellings.
{¶18} Defense trial counsel asked Edgein whether she asked Doe about hearing
“creepy voices.” Appellee objected that this portion of the interview was not included in
that deemed admissible by the trial court. The trial court sustained the objection and told
counsel that if the information was not in the highlighted portion of the transcript, they
should not raise it. Upon receiving this ruling by the trial court, defense trial counsel was
asked whether they would like to put anything on the record, and counsel replied “Not at
this time.” T. I., 46-47.
{¶19} Defense trial counsel asked whether Edgein examined Doe’s throat, and
the nurse responded it was normal. Edgein testified Doe was appropriate for her age and
her responses and attention span were typical. When asked whether she was surprised
to find Doe’s hymen was “normal,” Edgein testified it is a misconception that there is any
sign of vaginal trauma in most cases of sexual abuse; even in cases of alleged
penetration, the vagina and hymen are usually “normal” because the tissue heals quickly.
{¶20} Moreover, as Edgein pointed out, Doe alleged oral sexual abuse. Edgein
testified she was perfectly comfortable making the diagnosis of child sexual abuse based
primarily upon Doe’s statements. When asked whether anything in Doe’s interview gave
her cause for concern, Edgein said no. Counsel cited the example of the “small chair on
the bed” and Edgein said this detail was possible, she didn’t personally see the scene.
Stark County, Case No. 2021CA00081 22
Testimony of Jane Doe
{¶21} Doe was questioned by the trial court at the competency hearing and found
competent. Doe was age 7 at the time; the trial court found she knows the difference
between the truth and a lie, and is capable of telling the truth. Doe testified she doesn’t
know the meaning of the phrase “staying with the angels.”3
{¶22} The trial court found Doe did not appear to be suffering from hallucinations
and was competent to testify. Prior to trial, appellee moved to exclude any evidence of
Doe hearing voices. Appellant objected and stated Doe hears voices calling her name,
which is similar her allegation that appellant called her name to bring her into the bedroom
before the alleged abuse. T. I., 9. Defense trial counsel argued as follows:
* * * *.
So she’s hearing voices saying her name at the actual
interview, during the incident she says she hears someone saying
her name. Also during the incident she says that she hears the
words said to her something like “Do you want some candy?”
So with her hearing voices, we don’t know if that’s actually
true, but it goes to her credibility as a witness, her competency.
T. I., 9.
{¶23} Pretrial, the trial court ruled that Doe would be voir dired prior to testifying,
and that the parties should not mention “hearing voices” in opening statement. Defense
3This statement was another example cited by appellant as indicating issues with Doe’s
mental state, and the source is briefly discussed infra.
Stark County, Case No. 2021CA00081 23
trial counsel stated that Doe told family members in the past that she talks to angels and
hears their voices; the source of this allegation is Paternal Grandmother. T. I., 10.
{¶24} The trial court determined Doe would be questioned about these matters
outside the presence of the jury, before her testimony, to determine any relevance.
{¶25} During trial, Doe was briefly voir dired by the trial court out of the presence
of the jury. She testified that no one told her what to say; her mother talked to her about
attending court and told her to be brave and tell the truth. The trial court asked whether
“any voices” told her what to say and she said no. She was also asked whether she
talked to angels and she said no. She brought a stuffed animal to court with her that her
mother bought for her the day before. The trial court ruled there was no evidence to
support an inference that Doe was “hearing voices” or suffering from hallucinations, and
therefore granted appellee’s motion in limine to exclude allegations of hallucinations.
{¶26} Doe testified she would soon be turning 8 and was presently attending
online school because of Covid. She lives with mommy and her new daddy. She
promised to tell the truth and testified she understands the difference between the truth
and a lie.
{¶27} When asked what she told her uncle, Doe replied that she “didn’t want to
say in front of everyone.” She told T.J. because she felt like telling him was safe; she told
him that appellant put his penis in her mouth. Appellant used to be married to her mom.
Doe testified that the abuse happened more than once, and it always occurred in
appellant’s bedroom.
{¶28} The first incident occurred when her mom took their dog Pepperjack to the
vet. Doe was in the dining room finishing a meal and appellant called her name from his
Stark County, Case No. 2021CA00081 24
bedroom. Doe went into the bedroom; appellant placed a hat on her head and sat her in
a chair. She described the hat as a stretchy winter hat with letters on it, that covered her
forehead and eyes. Appellant asked her whether she wanted candy or a popsicle.
{¶29} Doe didn’t say anything; she sat in the chair on the floor and appellant sat
on the bed. The room was dark and she didn’t know if appellant was clothed. He asked
if she wanted candy and placed his penis in her mouth; she could not see him as this
occurred because the hat covered her eyes. When asked how she knew it was a penis
in her mouth, Doe said she knows what skin tastes like. A “drop of pee” came out of the
penis in her mouth, and it tasted “weird,” not like water or juice.
{¶30} Upon cross examination, Doe said she has never told a lie and denied that
anyone told her to tell lies about appellant. When asked how she knows what a penis
looks like, Doe explained that she knows what skin tastes like because she sucks her
thumb when she is scared; this was not a thumb because it was long and did not have a
nail. T., I, 189. She didn’t touch it with her hands. She described the chair and the hat,
and said both items were discarded when they moved.
{¶31} Appellant rested without calling any witnesses.
Indictment, trial, conviction, and sentence
{¶32} Appellant was charged by indictment with one count of rape of a child under
the age of 13 pursuant to R.C. 2907.02(A)(1)(B), a felony of the first degree. The
indictment notes the victim is under the age of 10. Appellant entered a plea of not guilty.
{¶33} Appellant filed a motion to determine the competency of the child victim.
Appellee filed a motion to determine the admissibility of statements of the child victim at
Stark County, Case No. 2021CA00081 25
the Stark County Children’s Network pursuant to State v. Arnold, 126 Ohio St.3d 290,
2010-Ohio-2742, 933 N.E.2d 775.
{¶34} The matter proceeded to an evidentiary hearing on October 26, 2020
including the testimony of the child victim. The trial court found by Judgment Entry dated
October 27, 2020, that the child is capable of expressing herself in the instant case, is
capable of understanding the duty to tell the truth, is deemed competent to testify at trial,
and shall be permitted to testify, subject to cross-examination.
{¶35} The trial court filed a second Judgment Entry on October 27, 2020,
addressing appellee’s motion pursuant to State v. Arnold, supra. Attached to the
judgment entry is a transcript of the child victim’s interview at the Stark County Children’s
Network; the trial court underlined portions of the transcript which it found to be non-
testimonial and therefore admissible at trial.
{¶36} On June 15, 2021, appellee filed a motion in limine seeking to prevent
appellant from inquiring about statements made by the child victim during her forensic
interview.
{¶37} Appellee argued appellant intended to offer these statements to prove Doe
suffers from auditory hallucinations and is therefore not a competent witness. Appellee
argued the statements are hearsay and have no nexus to Doe’s testimony regarding the
sexual assault.
{¶38} Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) at
the close of appellee’s evidence. The motion was overruled.
Stark County, Case No. 2021CA00081 26
{¶39} The jury found appellant guilty as charged and made an additional finding
that Doe was under the age of 10 at the time of the offense. The trial court sentenced
appellant to a term of life in prison without the possibility of parole.
Defense proffer: allegations of “hearing voices”
{¶40} After appellant was sentenced, before the proceedings concluded, defense
trial counsel asked to make a proffer and the trial court agreed. The following statements
were made:
* * * *.
(The following was proffered into the record by [defense trial
counsel].)
[COUNSEL]: Okay. Now—all right. The defense attempted
to question the child about hearing voices and seeing angels. The
Court ruled that was not admissible. We believe that the testimony
had gone forward. The child would have testified that she heard
voices during the course of her forensic evaluation. That the voices
was calling her name over and over again. And it was super creepy.
In addition, we believe, that she would testify that she could
talk to angels. Further, we would indicate that there is a nexus
between the child hearing her name called in the interview and the
incident in question, because she stated that prior to the incident that
happened. Her name was called. Thank you.
THE COURT: Just so the record is covered, again. The Court
chose the option of doing an in-camera interview of the child. There
Stark County, Case No. 2021CA00081 27
was a couple of sentences on the interview. The 6-year-old child did
testify, appeared to be the most articulate 6 year old I ever saw in my
entire life.
The Court did question her, regarding the angels and
hallucination. And it didn’t seem to be the case.
And also there are no medical records or no testimony
throughout the case. She had been receiving any counseling, any
medical treatment or anything like that, we believe, led the Court to
believe that—that had taken place. It was a forensic interview with a
child, I believe, shortly after the incident. And so, we covered all that
on the record.
* * * *.
T. Sentencing, 19-20.
{¶41} Appellant now appeals from the trial court’s judgment entry of conviction
and sentence filed June 29, 2021.
{¶42} Appellant raises six assignments of error:
ASSIGNMENTS OF ERROR
{¶43} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED.”
{¶44} “II. THE APPELLANT’S CONVICTION WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”
Stark County, Case No. 2021CA00081 28
{¶45} “III. THE TRIAL COURT ERRED BY FINDING A.M., A CHILD UNDER THE
AGE OF TEN, WAS COMPETENT TO TESTIFY.”
{¶46} “IV. THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT
TO LIFE WITHOUT THE POSSIBILITY OF PAROLE AS IT WAS CONTRARY TO LAW
AND NOT SUPPORTED BY THE RECORD.”
{¶47} “V. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 6TH AND 14TH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
10 OF THE OHIO CONSTITUTION.”
{¶48} “VI. THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION IN
LIMINE FILED BY APPELLEE AS IT DEPRIVED APPELLANT OF A FAIR TRIAL BY
PREVENTING APPELLANT FROM BEING ABLE TO QUESTION ANY WITNESS ON
CROSS-EXAMINATION ABOUT THE UNUSUAL THINGS THE ALLEGED VICTIM
STATED DURING HER FORENSIC INTERVIEW THAT INCLUDED HEARING WEIRD
VOICES, AND ALSO BY NOT EXCLUDING THE TESTIMONY OF ALISSA EDGEIN.”
ANALYSIS
I., II.
{¶49} Appellant’s first and second assignments of error are related and will be
considered together. Appellant asserts his rape conviction is not supported by sufficient
evidence and is against the weight of the evidence. We disagree.
{¶50} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
Stark County, Case No. 2021CA00081 29
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine 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. 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.”
{¶51} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶52} Appellant was found guilty upon one count of rape of a child under the age
of 13 pursuant to R.C. 2907.02(A)(1)(B)(b), which states in pertinent part:
(A)(1) No person shall engage in sexual conduct with another
* * * when any of the following applies:
* * * *.
Stark County, Case No. 2021CA00081 30
(b) The other person is less than thirteen years of age,
whether or not the offender knows the age of the other person.
* * * *.
(B) Whoever violates this section is guilty of rape, a felony of
the first degree. * * * *. Except as otherwise provided in this division,
notwithstanding sections 2929.11 to 2929.14 of the Revised Code,
an offender under division (A)(1)(b) of this section shall be sentenced
to a prison term or term of life imprisonment pursuant to section
2971.03 of the Revised Code. * * * *. If an offender under division
(A)(1)(b) of this section previously has been convicted of or pleaded
guilty to violating division (A)(1)(b) of this section or to violating an
existing or former law of this state, another state, or the United States
that is substantially similar to division (A)(1)(b) of this section, if the
offender during or immediately after the commission of the offense
caused serious physical harm to the victim, or if the victim under
division (A)(1)(b) of this section is less than ten years of age, in
lieu of sentencing the offender to a prison term or term of life
imprisonment pursuant to section 2971.03 of the Revised Code,
except as otherwise provided in this division, the court may
impose upon the offender a term of life without parole. If the
court imposes a term of life without parole pursuant to this division,
division (F) of section 2971.03 of the Revised Code applies, and the
Stark County, Case No. 2021CA00081 31
offender automatically is classified a tier III sex offender/child-victim
offender, as described in that division. * * * *. (Emphasis added).
{¶53} “Sexual conduct” includes fellatio. R.C. 2907.01(A).
{¶54} In the instant case, Jane Doe testified that appellant placed his penis in her
mouth when she was 6 years old. She later disclosed the abuse to her uncle and an
investigation ensued.
{¶55} Appellant argues his conviction is against the manifest weight of the
evidence because it is premised upon Doe’s word alone, absent any physical evidence.
The testimony of a single witness, if believed by the trier of fact, is sufficient to support a
conviction. State v. Nash, 5th Dist. Stark No. 2014CA00159, 2015-Ohio-3361, ¶ 20, citing
State v. Cunningham, 105 Ohio St.3d 197, 2004–Ohio–7007, 824 N .E.2d 504, at ¶ 51–
57. We are mindful, moreover, that “[c]orroboration of victim testimony in rape cases is
not required.” State v. Meeks, 5th Dist. Stark No. 2014CA00017, 2015-Ohio-1527, 34
N.E.3d 382, ¶ 81, appeal not allowed, 143 Ohio St.3d 1543, 2015-Ohio-4633, 40 N.E.3d
1180, citing State v. Cuthbert, 5th Dist. Delaware No. 11CAA070065, 2012-Ohio-4472,
2012 WL 4474720, ¶ 28 and State v. Johnson, 112 Ohio St.3d 210–217, 2006-Ohio-6404,
858 N.E.2d 1144, at ¶ 53.
{¶56} Appellant also points to minor inconsistencies in Doe’s account. While the
jury may take note of inconsistencies and resolve or discount them accordingly, such
inconsistencies alone do not render a conviction against the manifest weight or sufficiency
of the evidence. State v. Wolters, 5th Dist. No. 21CA000008, 2022-Ohio-538, 185 N.E.3d
601, ¶ 20, citing State v. Craig, 10th Dist. Franklin App. No. 99AP-739, 2000 WL 297252,
(Mar. 23, 2000) *3, internal citation omitted.
Stark County, Case No. 2021CA00081 32
{¶57} In a case involving inconsistencies in the testimony of a seven-year-old
child victim, this Court noted, “The jury was free to use their life experiences in assessing
the testimony of a child verses an adult and draw its conclusion.” Wolters, supra, at ¶ 20,
citing State v. Allen, 5th Dist. Stark No. 2021CA00051, 2022-Ohio-268, 2022 WL 278398,
¶ 31. We therefore find inconsistencies in the five-year-old child victim's statements
regarding the sexual conduct does not render the judgment against the manifest weight
or sufficiency of the evidence. Id.{¶58} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 189, 552
N.E.2d 180 (1990). The trier of fact “has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on the
written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Doe’s
testimony, if believed, supports a conviction for a charge of rape in violation of R.C.
2907.02(A)(2). State v. Singleton, 5th Dist. Delaware No. 20 CAA 06 0026, 2021-Ohio-
3010, ¶ 32, appeal dismissed, 165 Ohio St.3d 1508, 2022-Ohio-140, 179 N.E.3d 1267.
{¶59} Upon review, we decline to second-guess the credibility determinations of
the jury in this matter. See, Schmelmer, supra. This is not an “‘exceptional case in which
the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387,
quoting Martin, 20 Ohio App.3d at 175.
{¶60} The trial court neither lost its way nor created a miscarriage of justice in
convicting appellant of rape, and appellee presented evidence of his guilt beyond a
reasonable doubt.
{¶61} Appellant’s first and second assignments of error are overruled.
Stark County, Case No. 2021CA00081 33
III.
{¶62} In his third assignment of error, appellant argues the trial court erred in
finding Jane Doe competent to testify. We disagree.
{¶63} Every person is competent to be a witness except those of unsound mind,
and children under ten years of age who appear incapable of receiving just impressions
of the facts respecting which they are examined, or of relating them truly. Evid.R. 601(A).
{¶64} In determining whether a child under the age of ten is competent to testify,
the trial court must consider: (1) the child's ability to receive accurate impressions of fact
or to observe acts about which he or she will testify, (2) the child's ability to recollect those
impressions or observations, (3) the child's ability to communicate what was observed,
(4) the child's understanding of truth and falsity, and (5) the child's appreciation of his or
her responsibility to be truthful. State v. Wolters, 5th Dist. No. 21CA000008, 2022-Ohio-
538, 185 N.E.3d 601, ¶ 30, citing State v. Frazier, 61 Ohio St.3d 247, 574 N.E.2d 483(1991). To reverse a finding of competency, we must find the trial court abused its
discretion. State v. Lewis, 4 Ohio App.3d 275, 448 N.E.2d 487 (3rd Dist. 1982).
{¶65} As noted supra, we have reviewed the record of the competency/Arnold
hearing. We find the child victim demonstrated an ability to receive accurate impressions
of fact, was able to recollect impressions or observations, could communicate what was
observed, understood truth and falsity, and appreciated her responsibility to be truthful.
Wolters, supra, 2022-Ohio-538, ¶ 31. The trial court did not abuse its discretion in finding
her competent to testify.
{¶66} Appellant further argues her inconsistent and contradictory testimony at trial
demonstrates she was not competent to testify. In Wolters, supra, 2022-Ohio-538, at ¶
Stark County, Case No. 2021CA00081 34
33, we favorably cited the decision of the Twelfth District in State v. Jones, 12th Dist.
Brown No. CA2000-11-032, 2001 WL 1402638 at *6, in which the Court addressed the
issue at stake in a determination of the competence of a child witness:
[I]t is not the role of the trial judge to determine that everything
a child will testify to is accurate, but whether the child has the
intellectual capacity to accurately and truthfully recount events. State
v. Leach (Feb. 20, 2001), Clermont CA2000-05-033, unreported, at
5 [2001 WL 171026]. Any inconsistencies between [a child's] trial
testimony and the testimony of other witnesses relate to [the child's]
credibility, not [their] competency. See id.; State v. Rayburn (Apr. 24,
2000), Clinton CA99-03-005, unreported, at 6 [2000 WL 485501].
[The child's] credibility was for the jury's consideration.
{¶67} Akin to our analysis in Wolters, we find any inconsistencies and
contradictions in Doe’s testimony went to her credibility, not to her competency.
{¶68} Appellant’s third assignment of error is overruled.
IV.
{¶69} In his fourth assignment of error, appellant argues the trial court erred in
sentencing to a prison term of life without the possibility of parole. We disagree.
{¶70} Appellant was convicted of the rape of a child under the age of 10. R.C.
2907.02(B) states in relevant part:
[I]f the victim under division (A)(1)(b) of this section is less
than ten years of age, in lieu of sentencing the offender to a prison
term or term of life imprisonment pursuant to section 2971.03 of the
Stark County, Case No. 2021CA00081 35
Revised Code, the court may impose upon the offender a term of life
without parole. If the court imposes a term of life without parole,
pursuant to this division, division (F) of section 2971.03 of the
Revised Code applies, and the offender automatically is classified a
tier III sex offender/child victim offender, as described in that division.
{¶71} In accordance with R.C. 2907.02(B), R.C. 2971.03(B)(1)(b) provides in
relevant part:
[I]f a person is convicted of or pleads guilty to a violation of
division (A)(1)(b) of section 2907.02 of the Revised Code committed
on or after January 2, 2007, if division (A)1 of this section does not
apply regarding the person, and if the court does not impose a
sentence of life without parole when authorized pursuant to division
(B) of section 2907.02 of the Revised Code, the court shall impose
upon the person an indefinite prison term consisting of one of the
following:
(b) If the victim was less than ten years of age, a minimum
term of fifteen years and a maximum of life imprisonment.
{¶72} Appellant makes several arguments under this assignment of error. First,
he accuses the trial court of improperly weighing the principals and purposes of felony
sentencing contained in R.C. 2929.11 and the seriousness and recidivism factors
contained in R.C. 2929.12 when it imposed a sentence of life without the possibility of
parole. We disagree.
Stark County, Case No. 2021CA00081 36
{¶73} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C)
of this section shall review the record, including the findings
underlying the sentence or modification given by the sentencing
court.
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court for
resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶74} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required beyond a reasonable doubt’ in criminal cases, and which will produce in
Stark County, Case No. 2021CA00081 37
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶75} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range’ ” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶76} There is no dispute that a sentence of life without the possibility of parole is
within the statutory range for a first-degree felony rape of a child under the age of 10.
Appellant instead argues the trial court failed to properly consider the principles and
purposes of felony sentencing under R.C. 2929.11 and the seriousness and recidivism
factors under R.C. 2929.12.
{¶77} R.C. 2929.11 governs the overriding purposes of felony sentencing and
states the following in pertinent part:
(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others, to punish the offender,
and to promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local
Stark County, Case No. 2021CA00081 38
government resources. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the
public, or both.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate with
and not demeaning to the seriousness of the offender's conduct and
its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.
{¶78} R.C. 2929.12 governs factors to consider in felony sentencing and states
the following in pertinent part:
(A) Unless otherwise required by section 2929.13 or 2929.14
of the Revised Code, a court that imposes a sentence under this
chapter upon an offender for a felony has discretion to determine the
most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code. In
exercising that discretion, the court shall consider the factors set forth
in divisions (B) and (C) of this section relating to the seriousness of
the conduct, the factors provided in divisions (D) and (E) of this
section relating to the likelihood of the offender's recidivism, and the
factors set forth in division (F) of this section pertaining to the
Stark County, Case No. 2021CA00081 39
offender's service in the armed forces of the United States and, in
addition, may consider any other factors that are relevant to
achieving those purposes and principles of sentencing.
{¶79} R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require
the trial court to “use specific language or make specific findings on the record in order to
evince the requisite consideration of the applicable seriousness and recidivism factors.”
State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Therefore, although there
is a mandatory duty to “consider” the relevant statutory factors under R.C. 2929.11 and
2929.12, the sentencing court is not required to engage in any factual findings under said
statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17; State v.
Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. “The trial court has no
obligation to state reasons to support its findings, nor is it required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry.” State v. Webb, 5th Dist.
Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.
{¶80} Moreover, as recently stated by the Supreme Court of Ohio in State v.
Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39, R.C.
2953.08(G)(2)(b) “does not provide a basis for an appellate court to modify or vacate a
sentence based on its view that the sentence is not supported by the record under R.C.
2929.11 and 2929.12.” “Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment for that of the
Stark County, Case No. 2021CA00081 40
trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12” Id. at 4
{¶81} In the instant case, the trial court indicated during the sentencing hearing
and in its judgment entry that it had considered R.C. 2929.11 and R.C. 2929.12 in
fashioning appellant's sentence. The trial court noted appellant had a prior conviction for
kidnapping, and in the instant case, traumatized a six-year-old child, taking advantage of
his relationship to the child as a stepfather. Upon review, we find the trial court properly
weighed the appropriate considerations under R.C. 2929.11 and R.C. 2929.12. State v.
Allen, 5th Dist. Stark No. 2021CA00051, 2022-Ohio-268, ¶ 56.
{¶82} Appellant next argues his sentence is not consistent with that of other
individuals sentenced for the same offense, citing two cases in the Stark County Court of
Common Pleas in which offenders convicted of rape of a child under the age of 10 were
sentenced to prison terms of 20 years and 6 years, respectively. In State v. Ryan, 1st
Dist. Hamilton No. C-020283, 2003-Ohio-1188, ¶ 10, our colleagues from the First District
explained the following:
The Ohio plan attempts to assure proportionality in felony
sentencing through consistency. R.C. 2929.11(B). Consistency,
however, does not necessarily mean uniformity. Instead, consistency
aims at similar sentences. Accordingly, consistency accepts
divergence within a range of sentences and takes into consideration
the trial court's discretion to weigh relevant statutory factors. Id.[Griffin and Katz, Sentencing Consistency: Basic Principles Instead
of Numerical Grids: The Ohio Plan (2002), 53 Case W.R.L.Rev. 1,
Stark County, Case No. 2021CA00081 41
12] at 12. The task of the appellate court is to examine the available
data not to determine if the trial court has imposed a sentence that is
in lockstep with others, but whether the sentence is so unusual as to
be outside the mainstream of local judicial practice. Id. at 13.
Although offenses may be similar, distinguishing factors may justify
dissimilar sentences. Id. at 15.
{¶83} Accord State v. King, 5th Dist. Muskingum No. CT06-0020, 2006-Ohio-
6566.
{¶84} We have reviewed the record and do not find the sentence imposed “is so
unusual as to be outside the mainstream of local judicial practice.” State v. Harris, 5th
Dist. Muskingum No. CT2020-0052, 2021-Ohio-4007, ¶ 53, appeal not allowed, 165 Ohio
St.3d 1542, 2022-Ohio-397, 180 N.E.3d 1177. The trial court heard the evidence,
considered the necessary factors, and imposed a sentence within the guidelines. We do
not find anything in the record to declare the sentence to be a disproportionate sentence.
Moreover, if appellant believed his sentence was disproportionate to the others imposed
for similar offenses, he was obligated to raise the issue with the trial court and present
some evidence in order to preserve the matter for appeal. State v. Allen, 5th Dist. Stark
No. 2021CA00051, 2022-Ohio-268, ¶ 57, citing State v. Ewert, 5th Dist. Muskingum No.
CT2012-0002, 2012-Ohio-2671 ¶ 32.
{¶85} Finally, appellant argues the trial court gave too much weight to appellant’s
prior conviction of kidnapping. It is well settled, however, that a trial court may consider a
defendant's historical behavior during sentencing. Allen, supra, 2022-Ohio-268, ¶ 58. “A
Stark County, Case No. 2021CA00081 42
sentencing court has wide discretion in considering factors necessary to craft a
sentence[.]” State v. Keslar, 8th Dist. Cuyahoga No. 107088, 2019-Ohio-2322, ¶ 12.
{¶86} Based on the record before this court, we find the trial court's findings in
support of its imposition of life without the possibility of parole are supported by the record.
{¶87} The fourth assignment of error is overruled.
V., VI.
{¶88} Appellant’s fifth and sixth assignments of error are related and will be
considered together. He argues the trial court improperly allowed appellee’s expert
witness to opine as to Doe’s veracity, and that he received ineffective assistance of
defense trial counsel because there was no objection or motion for mistrial. Finally,
appellant argues the trial court erred in granting appellee’s motion in limine regarding the
evidence of Doe “hearing voices.” We disagree.
{¶89} Appellant argues the trial court committed reversible error by allowing
appellee’s expert, Alissa Edgein, to testify to her diagnosis of Doe’s evaluation as
consistent with child sexual abuse, because the diagnosis was based upon Doe’s
statements alone in the absence of physical evidence.
{¶90} Determinations regarding the admissibility of expert testimony are generally
within the discretion of the trial court and, absent an abuse of that discretion, will not be
overturned. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 616, 687 N.E.2d 735. The Ohio
Supreme Court discussed the issue of expert testimony in child sexual abuse cases in
State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), overruled, in part, on other
grounds by State v. Muttart, 116 Ohio St.3d 5, 2007–Ohio–5267, 875 N.E.2d 944. The
Supreme Court held that “the use of expert testimony is perfectly proper [in cases
Stark County, Case No. 2021CA00081 43
involving alleged child abuse] and such experts are not limited to just persons with
scientific or technical knowledge but also include other persons with ‘specialized
knowledge’ gained through experience, training or education.” Id. at 126. “[A]n expert's
opinion testimony on whether there was sexual abuse would aid jurors in making their
decision and is, therefore, admissible pursuant to Evid.R. 702 and 704.” Id. at 128.
However, “[a]n expert may not testify as to the expert's opinion of the veracity of the
statements of a child declarant.” Id. at syllabus.
{¶91} As an example of expert testimony impermissibly bolstering a witness'
credibility, the expert in Boston testified “that [the victim] had not fantasized her abuse
and that [the victim] had not been programmed to make accusations against her father.”
Id. at 128. The Supreme Court found this testimony “egregious” and “prejudicial,” since it,
“in effect, declared that [the victim] was truthful in her statements.” Id.
{¶92} In a later decision, the Ohio Supreme Court affirmed its position that “[i]t is
permissible * * * for an expert to convey this belief[, i.e., that the child was actually
abused,] to the jury.” State v. Stowers, 81 Ohio St.3d 260, 261, 690 N.E.2d 881 (emphasis
sic). In Stowers, the Court recognized a distinction “between expert testimony that a child
witness is telling the truth and evidence which bolsters a child's credibility insofar as it
supports the prosecution's efforts to prove that a child has been abused.” Id. at 262, 690
N.E.2d 881 (emphasis sic). While the former is the sort of testimony prohibited by Boston,
the other sort, “which is additional support for the truth of the facts testified to by the child,
or which assists the fact finder in assessing the child's veracity,” does not violate this
prohibition. Id. at 262–263 (emphasis sic).
Stark County, Case No. 2021CA00081 44
{¶93} In practice, the decision of whether to allow an expert to offer an opinion on
the issue of whether abuse has occurred often turns on the foundation of the expert's
opinion. State v. Britta, 11th Dist. Lake No. 2009-L-017, 2010-Ohio-971, ¶ 69. While there
must not always be “physical evidence present before an expert can render a valid opinion
on whether a child has been sexually abused * * *, there simply has to be something other
than the child's unsupported allegations that assisted the expert in arriving at his or her
opinion.” State v. Schewirey, 7th Dist. No. 05 MA 155, 2006–Ohio–7054, at ¶ 48 (citation
omitted). “This would obviously include physical evidence, but could also involve the
expert's observations of the child's demeanor or other indicators tending to show the
presence of sexual abuse.” Id.{¶94} Thus, where the expert's opinion is based solely on the testimony of the
alleged victim, courts of appeals have deemed such opinions as “tantamount to permitting
the expert to testify as to the child's veracity.” State v. Britta, supra, 11th Dist. Lake No.
2009-L-017, 2010-Ohio-971, ¶ 70, citing Johnson, 2008–Ohio–6657, at ¶ 32. Where the
expert's opinion is “based upon all of the data he had in front of him, [and] not just the
victim's statements,” it does not “constitute his personal opinion as to the veracity of the
victim's complaints” and is, therefore, admissible. Id., citing State v. Muhleka, 2nd Dist.
No. 19827, 2004–Ohio–1822, at ¶ 40.
{¶95} In the instant case, Edgein’s testimony was based upon her education and
experience in evaluating allegations of child sexual abuse. She noted the level of detail
in Doe’s statements about the abuse. Edgein also noted the onset of bedwetting at age
4 and dysuria as potential indicators of abuse. The absence of physical findings during
Stark County, Case No. 2021CA00081 45
the exam was neither unusual nor unexpected given the nature of the abuse reported and
the amount of time that had elapsed.
{¶96} Edgein’s testimony provides an adequate foundation to admit her opinion
of the evaluation as consistent with sexual abuse. Such opinion testimony was expressly
sanctioned by the Ohio Supreme Court in Stowers. 81 Ohio St.3d at 261, 690 N.E.2d 881.
The opinion is duly based upon Edgein’s training and experience, her interview and
physical examination of Doe, and the forensic interview at the Stark County Children’s
Network.
{¶97} We find that the opinion expresses Edgein’s professional opinion that Doe
was actually abused without directly commenting on Doe's veracity. See, Britta, supra,
2010-Ohio-971, ¶ 76. The fact that the opinion supports the veracity of the child victim’s
testimony does not render the opinion inadmissible. Id. Appellant’s reliance on State v.
Knight, 8th Dist No. 87737, 2006–Ohio–6437 is misplaced because that case rests on the
conclusion that an expert based her diagnosis solely on her assessment of the victim's
veracity. Knight, 2006–Ohio–6437, at ¶ 31. As noted supra, the record is replete with the
basis of Edgein’s diagnosis.
{¶98} Appellant further argues he received ineffective assistance of defense trial
counsel because counsel failed to object or move for mistrial because Edgein “improperly
testified regarding her opinion as to the veracity of Doe’s statements.” Brief, 24.
{¶99} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
Stark County, Case No. 2021CA00081 46
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.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158(1955).
{¶100} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in the
same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside
the wide range of professionally competent assistance.” Id. at 690.
{¶101} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶102} In light of our finding that Edgein’s opinion was not improperly admitted
by the trial court, defense trial counsel did not err in failing to object on that basis.
{¶103} Finally, appellant argues the trial court erred in granting appellee’s motion
in limine preventing him from questioning Doe about her statements regarding “hearing
voices.” We begin by noting the entire discussion of Doe “hearing voices” is premised
upon unfounded speculation that the child experienced auditory hallucinations. The
speculation is based upon an ambiguous portion of the forensic interview in which Doe’s
statements, without additional context, could be interpreted a number of ways. The purely
speculative nature of appellant’s argument is evident in his proffer, at the end of the
proceedings, after sentencing, in which he proffered no evidence in support of his
Stark County, Case No. 2021CA00081 47
premise here: the trial court should have allowed him to “inquire about these unusual
things” because further inquiry might have led to psychiatric testimony that would have
impeached Doe’s testimony. Brief, 27. He argues he should have been permitted to
cross-examine Edgein about the “potential auditory hallucination,” but Edgein was not the
forensic interviewer to whom Doe made the statements. Edgein testified Doe’s demeanor
and attention span were normal for a child her age.
{¶104} Appellant cites no support for his proposition that the trial court should
have permitted him greater latitude to explore the psyche of the child witness. In the
context of the entire trial, and in the context of Doe’s testimony specifically, we find his
argument misplaced.
{¶105} Appellant’s fifth and sixth assignments of error are overruled.
CONCLUSION
{¶106} Appellant’s six assignments of error are overruled and the judgment
of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, Earle, P.J. and
Wise, John, J., concur.