State v. Glover , 2016 Ohio 2749 ( 2016 )

[Cite as State v. Glover, 2016-Ohio-2749.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26523
:
v. : T.C. NO. 14CR1033
:
MARVIN M. GLOVER : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
:
...........
OPINION
Rendered on the ___29th___ day of _____April_____, 2016.
...........
H
CARLEY J. INGRAM, Atty, Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 N. Ludlow Street, Suite 386
Talbott Tower, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
This matter is before the Court on the Notice of Appeal of Marvin Glover,
filed December 18, 2014. Glover appeals from his December 19, 2014 Judgment Entry
-2-
of Conviction, following a bench trial, on two counts of rape, in violation of R.C.
2907.02(A)(1)(b), felonies of the first degree, and one count of sexual battery, in violation
of R.C. 2907.03(A)(5), a felony of the third degree. Prior to trial, Glover pled no contest
to three additional counts of sexual battery. He was sentenced to 10 years to life on the
rape convictions, and to 48 months on the sexual battery convictions, all to be served
concurrently, and he was designated a Tier III sex offender.1 The victim herein is T.H.,
the daughter of Glover’s live-in girlfriend, J.D. We hereby affirm the judgment of the trial
court.
Glover was indicted on March 27, 2014. On April 15, 2014, he filed a
“Motion to Suppress Statements,” which the trial court overruled after a hearing. On
October 17, 2014, Glover filed a Notice of Alibi, asserting in part that “he was employed in
2 jobs working many hours away from the home.” On October 20, 2014, the “State’s
Motion of Intent to Use Similar Acts Evidence” was filed. Trial commenced on November
3, 2014.
I. Trial testimony
A. Leroy Sanders
Leroy Sanders testified that he is employed by the City of Kettering Police
Department as a support services sergeant, and that he supervises the dispatch center,
the communications center and the property room. Sanders stated that in response to a
request from Detective Schomburg, he downloaded a 911 call that the dispatch center
received at 5:30 a.m. on the morning of March 18, 2014, from a female caller. When the
State sought permission to play the recording of the call, defense counsel objected, citing
1
Glover’s judgment entry of conviction erroneously provides that he was found guilty of
two counts of rape by a jury, and that he pled no contest to four counts of sexual battery.
-3-
“the relevance of the 911. It has no relevance to Count I or II or even to the other count *
* *.” The court overruled Glover’s objection, and the State played the recording of the
call. The following exchange occurred:
Q. Did you hear the emotion in her voice?
A. Yes. I heard it.
Q. Did it sound like she was still under * * * the excitement of the
event that occurred previously to you?
A. In my opinion, yes.
Q. And as far as when you heard the question in relation to how
long since this had been going on, what was her response?
A. Since she was seven.
Q. And that would have been shortly after this very incident
occurred that day she was already stating that.
A. Yeah. Correct sir.
On cross-examination, Sanders indicated that he merely provided the recording of the
911 call and that he has never spoken to the female caller and is not familiar with her
normal emotional state.
B. Amy Dallaire
Amy Dallaire testified that she has been employed by the Miami Valley
Regional Crime Laboratory for 12 years as a forensic scientist “in the serology DNA
section.” The court designated Dallaire as an expert in serology and DNA analysis on
the State’s motion. Defense counsel objected to her testimony, asserting that “the sole
purpose of this witness is simply to come in and to testify that on March 18th, 2014, [the]
-4-
incident which we’ve already pled to, that there was DNA found from my client.”
According to defense counsel, the testimony was irrelevant to the offenses before the
court. The State asserted, in part, that “this testimony goes to show that everything that
[T.H.] has said and reported in relation to this case that we can confirm has been
confirmed; whereby the things that Mr. Glover has said have not.* * *.” The court
overruled the objection, noting that if “in fact this is a question of credibility, then it would
seem to me that the testimony of this witness would be probative of the credibility of
[T.H.]”
Dallaire testified that she received a sexual assault kit from T.H. and a DNA
standard from Glover, and that her analysis indicated the presence of Glover’s DNA to a
reasonable degree of scientific certainty in a dried stain from T.H.’s right breast and a
swabbing from her underwear. On cross-examination, Dallaire testified that she did not
perform serology testing to determine if the DNA she found was from Glover’s semen.
She stated that she was unaware that Glover was a father figure in T.H.’s household with
access to her clothing, and she acknowledged that his DNA could have come from
sources other than semen. Dallaire stated that she cannot provide a timeframe for when
the DNA was deposited by Glover. On redirect examination, Dallaire testified that she
did not test for the presence of semen because the kit she received indicated that Glover
had licked T.H.’s right breast and performed oral sex on her, and there was no allegation
of ejaculation.
C. Jeff Geckler
Jeff Geckler testified that he has been employed by the City of Kettering as a
police officer for 28 years. He stated that on March 18, 2014 , while on routine patrol, he
-5-
and another officer were dispatched to an apartment building located on Bromley Place at
5:30 a.m. Geckler stated that he was the first to arrive at the scene, and that he
encountered T.H. in the lobby of the building. According to Geckler, T.H. “was upset.
She was having a little trouble speaking. She’s more or less holding back trying to cry.
Her eyes were kind of swelled up with tears.” Geckler testified that T.H. “stated that her
mother’s boyfriend had molested her.” Geckler stated that T.H. indicated that Glover
was “in her mother’s bedroom,” that he asked T.H. to go get J.D. and bring her to him, and
that T.H. did so. He stated that J.D. was emotional and yelling upon learning what T.H.
had alleged that Glover had done.
Geckler stated that he requested additional support, and that T.H. and J.D.
were transported to Kettering Hospital by Officer Jung. Geckler testified that he and
additional officers entered T.H.’s second floor apartment in search of Glover, and that
there “was an uncle who was sleeping on an air mattress in the living room. There were
two brothers in one bedroom and another, [T.H.’s] sister, in the bedroom where [T.H.] had
been claiming the incident occurred.” Geckler stated that the uncle, J.D.2, is J.D.’s
brother. Geckler stated that Glover was not in the apartment, and that he found Glover’s
cell phone and car keys there.
D. T.H.
T.H. testified that she is 18 years old, that she was born in 1996, and that she
is a senior at a local high school. She stated that she initially resided on Iddings Court in
Dayton with J.D. and T.H.’s two brothers who are 13 and 14 years old, and that Glover
moved into their home a few months after he began a relationship with J.D., when T.H.
was “six or seven.” She stated that she also has a six year old sister, and that Glover is
-6-
the girl’s father. T.H. testified that from Iddings Court, her family moved to “Rugby,” and
then to Tabor Avenue. She stated that she was “around thirteen” when they moved to
Tabor Avenue and in middle school. T.H. testified that she currently resides on Bromley
Place in an apartment.
T.H. stated that in their home on Iddings Court, there were three bedrooms,
and that her brothers shared a room and she had her own bedroom. T.H. stated that a
few months after Glover moved into their home, he began entering her bedroom at night.
The following exchange occurred:
Q. Do you remember the first time that he ever did that?
A. Yes.
Q. And as far as on that first time that he ever did that, were you
asleep at the time he came into the bedroom?
A. Yes.
Q. What was it that you remember waking you up that night?
A. Him coming in and setting his drink down on my dresser.
Q. * * * Would you usually sleep and your door would be shut or
would it remain open?
A. Shut.
Q. * * * So you think he may have opened the door then?
A. Yeah.
Q. * * * So you saw him walk into the bedroom?
A. Yes.
Q. Do you remember what he was wearing when he walked into the
-7-
bedroom?
A. Just his underwear.
Q. * * * And do you remember what kind of underwear it was? Was
it boxer shorts or what was it?
A. Boxer shorts.
Q. * * * You said he set his drink down on your dresser. As far as the
drink, was it in a bottle? Was it in a glass?
A. It was in a glass.
***
Q. * * * And when he set the glass down on the dresser, what did he
do at that point in time?
A. He got on top of my bed and he told me don’t tell anyone, this is
our little secret.
***
Q. Are you laying on the bed at that point in time or how are you
situated?
A. Laying on the bed.
T.H. testified that she could smell alcohol on Glover’s breath, and that she
was scared. She stated that Glover pulled her pajama pants down and removed them,
along with her underwear. According to T.H., Glover put “his tongue in my vaginal area,”
and that she did not know what to do. She stated that Glover then put her pajamas back
on and left the room. The following exchange occurred:
Q. Did it continue to happen after that first time?
-8-
A. Yes.
Q. Was there a certain pattern to it? Was it usually at a certain
time of day that it would happen?
A. Nighttime.
Q. * * * And as far as was there a pattern as far as the usual type of
thing that he would do to you when he did this?
A. Yes.
MR. GABEL: Your Honor, at this time, I would object.
THE COURT: * * * The objection will be overruled.
***
MR. GABEL: Your Honor - -
***
MR. GABEL: - - we’d at least ask for some time period. Are we
talking about within a month of this first one? A year? Two years? Ten
years? What? Can we at least get a date or a time period?
MR. SCHOEN: I think the question was establishing a pattern. I
mean I can get to the point when we establish how long the pattern was
ongoing. But right now, I’m trying to establish what the pattern usually
was.
THE COURT: Well, I think you can establish the pattern then you
can establish the frequency.
***
By Mr. Schoen:
-9-
Q. I’ll remind you of the question again. Was there a certain thing
that he would typically do as far as you indicated on the first time that he had
put his tongue on your vagina? Was there a typical thing? Was that the
common thing that he would do or would he do other things on different
occasions?
A. That was the common thing but he tried other stuff.
T.H. stated that Glover resided with her family at each of the addresses she
indicated above. The following exchange occurred:
Q. How (sic) we talked about how he’d usually come in at night and
he’d usually being these things. (sic) Mr. Gabel had asked well what time
frame are we talking about. You indicated Marvin had been the man of the
house for 11 years. Did the abuse occur over the course of the entirety of
that 11 years?
A. Yes.
Q. * * * Now, you indicated that he usually would come in in the
middle of the night. Would you usually stay in your bedroom when these
things would happen?
A. Usually.
Q. * * * Was there an incident on Iddings Court where he actually
removed you from your bedroom?
A. Yes.
Q. Now, how old do you remember being at the time when he
actually removed you from your bedroom?
-10-
A. The same age, six or seven.
Q. * * * So this would’ve been at Iddings Court also?
A. Yes.
Q. And on this specific incident, is it day or nighttime when it
happens?
A. It’s around like 7 or 8, like.
Q. So it’s the very early-morning hours?
A. Yeah.
Q. * * * And what do you remember happening as far as how does
Marvin * * * come and get you that day?
A. He came into my room and picked me up out of my bed and took
me downstairs to the living room.
Q. * * * Had you been asleep when he came into your room?
A. Yes.
Q. Do you remember what he was wearing on this occasion?
A. The same thing. His boxer shorts.
***
Q. And when he takes you down to that living room, what is it that
he does once you get to the living room?
A. He lays me down and pulls down my pajama bottoms and puts his
tongue in my vaginal area.
Q. * * * And when you say he lays you down, did he lay you on the
couch or where did he lay you?
-11-
A. On the floor next to the couch.
***
Q. * * * Had it happened, you know, between that first time and this
time or is this the second time that it ever happened?
A. It happened in between.
T.H. stated that the incident ended when Glover “left and I went back upstairs to my
room.”
The following exchange occurred:
Q. * * * Now, you indicated that * * * you moved to these different
places and this continued as you moved to all these different locations. I
want to talk to you about an incident that would’ve occurred * * * in
December of 2013. You had said that usually he would * * * just perform
oral sex on you but sometimes he’s tried other things. In December of
2013, is that an incident where he tried other things?
A. Yes.
Q. * * * And as far as where this incident was occurring, where were
you located at the time of this incident?
A. In my room.
Q. * * * And what apartment would you have been in as far as the
apartments that we talked about?
A. Bromley.
***
Q. Was it daytime or nighttime?
-12-
A. Nighttime
Q. And how does Marvin enter this time?
A. I don’t remember.
Q. * * * You were asleep at the time he entered?
A. Yes.
Q. * * * And as far as, you know, what is it that was different about
this time that sticks out in your mind?
A. He put his fingers inside of me.
Q. * * * Is that the only thing he did to you on that particular
occasion?
A. And his tongue.
Q. * * * And when you said he put his fingers inside of you, are you
talking about on your vaginal area?
A. Yes.
Q. * * *And how did it feel as far as when he put his fingers inside of
you?
A. It hurt.
Q. * * *And when you say it hurt, was it a sharp pain?
A. Yes.
Q. What did you do when he did that and there was that sharp
pain?
A. I pushed him off of me.
Q. How did he react when you pushed him off of you?
-13-
A. He said sorry and that he wouldn’t do it again and he left.
***
Q. How old were you at that point in time?
A. * * * Seventeen.
***
Q. As it was going on throughout the years, did you develop ways
that you would cope with what was happening to you?
A. I just acted like it wasn’t happening until I got older.
T.H. testified that as she got older, she “got more depressed.” T.H. stated
that she did not feel comfortable talking to J.D. about what was happening to her
“[b]ecause [J.D.] was with [Glover] and I didn’t want to make her mad.” She stated that
she loves her sister and Glover is “my sister’s dad and my mom loved him and everyone
thought he was a good person.”
T.H. stated that S.K. is her best friend, and that she met S.K. in eighth
grade. T.H. stated that she told S.K. their freshman year that she had been abused in
the past, but she did not “tell her anything specific and I didn’t tell her that it was ongoing.”
When asked what made her decide to disclose the abuse to S.K., T.H. replied, “I just kept
getting sadder and sadder.” T.H. identified State’s Exhibit 2, a letter that she addressed
to “[m]y mom and dad” but did not deliver to her parents. She stated that she wrote the
letter in October of 2013, and that she described therein various incidents of Glover’s
abuse and her feelings of confusion and depression. She testified that due to her
depression, when she was 17 years old, she “started cutting and tried to commit suicide”
by taking “a bunch of pills that I had.”
-14-
When asked about the incident that occurred on March 18, 2014, defense
counsel objected and the court noted that the “objection is to the fact that he’s pled no
contest to that and it’s, in a sense, redundant.” The court then indicated that it was still
“of the view that it’s probative of the charges still at issue and I would overrule the
objection.” Counsel for Glover requested a continuing objection “dealing with the 18th of
March, 2014.”
T.H. testified that on that date Glover entered her bedroom around 5:00
a.m., and that he “started touching my butt, and then he flipped me over, so that I was
laying on my back, and he put his tongue in my vaginal area.” According to T.H., Glover
then “pulled my sports bra down and put his mouth on my chest as he rubbed himself in
my vaginal area.” T.H. stated that Glover was wearing boxer shorts and that her pants
were on at the time. T.H. testified that her sister was asleep in the room in the course of
this incident.
After Glover returned to his bedroom, T.H. testified that she looked at her
phone and it was 5:11 a.m. T.H. stated that she “laid in bed, and then I checked
Facebook to see if there was anyone I could talk to, but there wasn’t, so I waited a little
and then I called 911.” T.H. stated that she met the police downstairs at the front door to
the apartment building when they arrived and told them what had happened that morning.
She stated that she then went back into the apartment and told J.D. what had happened
before going to the hospital.
T.H. stated that Detective Schomburg arrived at the hospital, and that she
related to him a version of events consistent with her trial testimony regarding Glover’s
conduct. T.H. stated that she met with a sexual assault nurse and was examined. T.H.
-15-
stated that she told the nurse which parts of her body had been touched by Glover. She
stated that she did not shower or change her clothes before going to the hospital, and that
the police collected her clothing.
On cross-examination, T.H. testified that she typed State’s Exhibit 2 on her
cell phone. T.H. stated that the letter is dated October 24, 2013. According to T.H., she
sent the letter to S.K. and no one else.
The following exchange occurred:
Q. Let me ask you, [T.H.], there was some discussion between
Marvin and your mother about moving away from Kettering to either
possibly Beaver Creek (sic) or perhaps even Columbus, Ohio, correct?
A. I don’t know about Columbus, but Beaver Creek (sic), yes.
Q. * * * And your reaction to that, I understand you were unhappy. Is
that a fair statement?
A. Yes.
Q. You didn’t want to move, did you?
A. No.
Q. And you didn’t want to move because, in fairness you’re a
senior, and you don’t want to leave your friends, right?
A. Yes.
Q. Particularly [S.K.]?
A. And others.
***
Q. * * * Who’s [S * * * * y]?
-16-
A. My friend.
Q. A friend. [S * * * * y] the young lady who came over and spent
the night - - was supposed to spend the night at your place, and you and she
didn’t tell mom and dad - - Marvin, the truth. You remember what I’m
talking about?
A. Yes, but I didn’t know that she was supposed to spend the night
at my house.
Q. * * * But you got in trouble with mom over that, didn’t you?
A. Yes.
Q. She felt you had lied to her; is that correct?
A. Yes.
Q. You were pretty upset?
A. Yeah.
Q. * * * And you were upset with Marvin too because he supported
your mother’s actions. Is that a fair statement?
A. I don’t remember his ever discussing it with me or my mom.
T.H. testified that she did not seek medical treatment after she began
cutting herself or after she attempted suicide, and she indicated that the scars from
cutting were no longer visible because she cut herself a year or two ago.
T.H. stated that J.D. suffers from schizophrenia and takes medication.
T.H. stated that “life is not pleasant” when J.D. fails to take her medication. T.H. testified
that she never told her brothers about Glover’s abuse, and that they never witnessed it.
T.H. stated that she always wears underwear to bed. She stated that she did not
-17-
remember if Glover removed her pants and underwear when he carried her downstairs on
Iddings Court. She stated that she is unable to provide the exact date or day of the week
that the December, 2013 incident occurred. According to T.H., when she was younger,
Glover would occasionally leave “a few dollars” on her dresser after he assaulted her, but
that he did not do so on every occasion.
Defense counsel provided Exhibit 2 to T.H., which he characterized as “well
written,” noting that in “looking throughout the entire thing I don’t see one spelling error.”
He further noted that “[e]ven the punctuations are good,” and he asked T.H. repeatedly if
someone else helped her write the letter. In reading portions of Exhibit 2, defense
counsel questioned T.H. about inconsistencies in the letter and her direct testimony. For
example, defense counsel confirmed with T.H. that the exhibit provides that in the course
of the first incident, Glover reached his hand up inside her pajama dress, and that she
remembers the incident clearly, yet she testified that she was wearing pajama pants at
the time. Also, T.H. acknowledged that the letter provides that Glover left money on her
dresser every night that he abused her, in contrast to her direct testimony that he did so
only occasionally.
E. S.K.
S.K. testified that she is a senior in high school and that T.H. is her best
friend. S.K. testified that T.H. disclosed to her that she had been sexually abused, but
S.K. was not “aware that it was current and ongoing until * * * the summer before my junior
year and the beginning of my junior year.” S.K. stated that T.H. sent her a message on
Facebook that she planned to give to J.D., and that after reading the message, she
became aware of the fact that the abuse was ongoing. She testified that she asked T.H.
-18-
if Glover was the perpetrator of the abuse, and that T.H. responded affirmatively. S.K.
identified Exhibit 2 as the message she received from T.H., and she indicated that the
message was sent on October 24, 2013 at 10:17 p.m.
S.K. testified that “during our junior year, [T.H.] started to become more
depressed. She would stay home a lot and stay in bed. She cut herself. I saw scars
and she showed the knife that she was hiding in her closet. And she also disclosed to
me that she attempted suicide by taking pills.” S.K. indicated that the scars she
observed were on T.H.’s wrists. She stated that T.H. did not seek medical treatment and
that T.H. “was putting some medicine on it at home, but not going to the doctor.” S.K.
testified that she advised T.H. to either tell her mother about the abuse or go to the police.
On cross-examination, S.K. stated that she met with Detective Schomburg
and provided a statement in which she indicated that she never witnessed any
inappropriate actions towards T.H. by Glover. She testified that Glover never said
anything in her presence that made her uncomfortable. S.K. stated that she has spent
the night numerous times at T.H.’s home, and that she did not observe inappropriate
behavior between Glover and T.H. S.K. stated that she has no personal knowledge of
the abuse alleged by T.H. S.K. stated that she did not report the abuse T.H. disclosed to
her to the police or her parents because T.H. “had expressed fears to me that getting
police involved could tear apart her family, and she was also afraid of just what would
happen if people knew.” S.K. indicated that Glover worked a lot and came home late at
night. On redirect examination, when asked about T.H.’s concerns about disclosing the
abuse, S.K. stated that T.H. “was concerned that potentially her family could be ripped
apart.” She stated that T.H. “cares a lot about her family and she’s a very selfless person
-19-
and she hates to burden others, and she was afraid that that’s would happen.” (sic).
When asked about the nature of T.H.’s relationship with J.D., S.K. responded, “as of now
it’s pretty awful.”
F. Michelle Ping
Michelle Ping testified that she has been a nurse for 24 years and that she
has worked in part as a registered SANE nurse (Sexual Assault Nurse Examiner) since
2006 for Butler County. Ping stated that the SANE program developed in response to
overcrowding in emergency rooms such that “it took a long time for a nurse and a
physician to properly do the examination for sexual assault. So the program started
popping up, that it designates a nurse to be trained to collect evidence, follow a chain of
command, and testify in court.”
When the prosecutor moved the court to designate Ping as an expert
witness, the following exchange occurred:
MR. GABEL: * * * I have no objections to her being an expert as - -
she’s a nurse, so certainly no objection. However, I do object and I’m going
to continue my objection in regards to the testimony itself.
My understanding, based on the discovery I’ve been given, her
testimony is simply the examination of March 18th 2014. It was not
relevance (sic) to those issues before the Court in my opinion, or * * * even
if she found whatever she found and it’s confirmed, it doesn’t go to those
three * * * counts, which are before this Court.
So I really don’t think it’s necessary and I would ask the Court to
dismiss this witness.
-20-
THE COURT: * * * yeah, we’ve had similar objections to other
witnesses in this case, and I’ll overrule the objection.
MR. SCHOEN: And just of note, Your Honor, Mr. Gabel has put
chain of custody directly at issue in this case, and as far as how this
evidence was - -
THE COURT: Well, that is true.
MR. SCHOEN: - - collected - -
***
MR. SCHOEN: - - we need her as a witness.
THE COURT: That is true. But I did say this morning that the fact
that * * * there’d been a plea on the March 18th incident, didn’t take those
facts off of the table for purposes of this trial, so - - the objection’s
overruled and then, of course, there is the chain of custody issue, which I
had not thought about.
Ping testified that on the morning of March 18, 2014, she was called to the
Kettering Hospital Emergency Department, and that when she arrived, between 5:00 and
6:00 a.m., “there was already a police officer at the bedside, so I could not go in and
perform the exam right away.” Ping stated that after the officer left T.H.’s room, she was
able to perform the exam. She stated that T.H. was 17 years old at the time, and that she
was wearing “sleep clothing.” Ping stated that she explained to T.H. the nature of the
examination. She stated that she obtained a statement from T.H. in order to determine
the direction of the examination. Ping read the following statement from T.H. verbatim:
“ ‘He came in and started touching my butt. He pulled my legs apart and put his tongue
-21-
in my vagina. After that he pulled my shirt down and put his mouth on my right breast.
He started rubbing himself, his private area on me, on my vagina, but my underwear was
on. * * * I then called 911 and this has been happening to me since I was 7.’ ” Ping stated
that T.H. maintained eye contact and kept her arms folded as if hugging herself in the
course of the exam.
Ping stated, “* * * when I took that statement, I still do the exam according to
protocol, however, with the mention of the right breast I do swabs of that area, wherever
they would mention that the mouth was, to see if there’s DNA.” Ping stated that she did
not note any injuries on T.H.’s person in the course of the exam. She stated that T.H.
declined a vaginal exam because “there was no vaginal penetration.” Ping identified the
sexual assault kit from T.H.’s exam and its contents, including a bag containing T.H.’s
clothing that Ping collected. She testified that she delivered the completed kit to Detective
Gary Schomburg. Ping stated that T.H. indicated that she did not shower or change her
clothes prior to coming to the hospital. In response to questions from defense counsel
regarding whether or not she could substantiate T.H.’s allegation that she has been
abused since the age of seven, Ping responded that “[t]here were no injuries.”
G. Vincent Mason
Vincent Mason testified that he is a detective with the City of Kettering
Police Department. He stated that on March 18, 2014, he received T.H.’s 911 call. He
stated that T.H. was “very emotional, very distraught sounding to me. At the beginning it
was hard to get answers out of her because she was * * * having trouble breathing * * *
having trouble getting the words out.” Mason stated that T.H. indicated that the abuse
she was reporting “had just happened.” Mason stated that in January he “took over
-22-
transporting all evidence from our property room to the crime lab, checking it in down
there, and then transporting it back to * * * our property room, and checking it in.” Mason
stated that he transported T.H.’s exam kit, which he identified, from the property room to
the crime lab on April 1, 2014 and returned it to the property room on April 15, 2014. He
stated that he also transported Glover’s DNA swabs, which he identified, on the same
dates.
H. Gary Schomburg
Gary Schomburg testified that he has been a detective with the City of
Kettering Police Department for six and a half years, having been employed by the City
for 14 years. He stated that he responded to Kettering Hospital at 6:00 a.m. on March
18, 2014, in response to T.H.’s allegations. After receiving an account of the allegations
from Nurse Melissa Grant at the hospital, Schomburg stated that he spoke to J.D.
According to Schomburg, J.D. was in a separate room because she “was hysterical,
crying.”
Schomburg stated that he then spoke to T.H. in an evaluation room, and
that T.H. was “very calm” and able to provide an account of what had happened to her.
He stated that he is trained to interview victims of sexual abuse, and that he followed the
appropriate procedures in interviewing T.H. He stated that T.H.’s account of the abuse
“started off with the March 18th, and then she disclosed other abuse.” The following
exchange occurred:
Q. Now, the other abuse, without going into specifics of her
disclosures, you’ve talked to her numerous times throughout this case?
A. Yes.
-23-
Q. Has her story remained consistent from the first day, when the
March 18th incident occurred to present time?
A. Yes, sir.
Schomburg stated that he retrieved the sealed sexual assault kit and the
bag of T.H.’s clothing, which he identified, from Michelle Ping. Schomburg stated that he
booked the items into the Kettering Police Department property room. Schomburg
stated that he subsequently proceeded to Bromley Place, where he spoke to J.D., her
brother, and T.H.’s sister. Schomburg stated that he also spoke to S.K., because T.H.
advised him at the hospital that she had disclosed the abuse to her. The following
exchange occurred:
Q. Are you aware of whether [T.H.] would have had any ability to
contact [S.K.] on the way from the apartment to the hospital?
A. I don’t believe so.
Q. As far as when you spoke with [S.K.], was her story consistent
with that of [T.H.]?
A. Yes.
Schomburg testified that S.K. provided a written statement on March 19, 2014, and that it
reflected what S.K. told him the day before.
Schomburg stated that a friend of Glover’s brought him to the police
department on March 19, 2014. Schomburg testified that the interview was recorded,
and that he downloaded it to a disk which he later provided to the prosecutor’s office. He
identified a transcript of the interview. Schomburg testified that Glover advised him that
he met J.D. in 2003 after he came to Dayton from Mansfield following the death of his
-24-
mother. Schomburg stated that Glover never denied that he was in a parental
relationship with T.H. He testified that in the course of his interview of him, Glover
indicated that T.H. is not sexually involved to his knowledge, and that having sex with her
never crossed his mind. Subsequently, Schomburg testified that Glover stated that he
believed that T.H. “ ‘probably messed with girls.’ ” When asked if T.H. had a history of
lying, Schomburg stated that Glover replied, “ ‘I couldn’t say.’ ” The following exchange
occurred:
Q. So when you confront him on the specific allegation she made,
he’s calling her basically a flat out liar?
A. Yes.
Q. And as to, you know, what I found interesting, I guess is what
does he say about his tendencies of getting up in the middle of the night?
A. He said he gets up almost every night because he has insomnia.
Q. * * * And * * * when you spoke with [T.H.], when is she alleging
that most of these instances take place?
A. I believe she said between 3:00 and 5:00 a.m.
Schomburg testified that Glover told him that he jumped out a second floor
window in the apartment when the police arrived on March 18, 2014, because he believed
that they were there on an outstanding warrant. Schomburg stated that after his initial
denials, Glover admitted to abusing T.H. two or three times in the last year. He stated that
Glover did not provide specific dates for the offenses. Schomburg stated that he asked
Glover if he wanted to write a letter of apology to T.H., and that Glover did so after
Schomburg left the room. Schomburg identified the letter, which provides in part, “I’m so
-25-
sorry for licking on your private part. * * * It just happened them three times. * * *.”
Schomburg stated that at the end of the interview, Glover stated that he abused T.H.
three times, twice in the last year and once at their home on Tabor Avenue. Schomburg
testified that he obtained DNA samples, which he identified, from Glover, which were
taken to the Miami Valley Crime Lab.
The following exchange occurred:
Q. Has [T.H.] been inconsistent with you in her story as to what has
been going on with her since she was the age of six or seven years old?
***
A. No.
Q. The people that [T.H.] has said she’s disclosed these things to,
did that check out?
A. Yes.
Q. Have those witnesses been inconsistent with you?
A. No.
Prior to beginning his cross-examination, defense counsel addressed the
court as follows: “I would ask that all testimony relating to DNA and relating to March
18th 2014, all the testimony by this detective, and any other witnesses, all be stricken
from the record for purposes of appellate review, if necessary.” The court indicated that
“the objection is overruled.” Schomburg indicated that after Glover admitted to three
instances of abuse, he advised him that T.H. had been “coming on to him,” and that he
accepted responsibility for his conduct. Schomburg stated that Glover “denied that he
ever did anything else, that he didn’t rape her, and he denied the incident in regards to
-26-
putting his finger into her vaginal area back in December of 2013.” Schomburg stated
that his only evidence of the earlier three instances of abuse is T.H.’s statement.
Schomburg stated that Glover does not have a felony record. He stated that in the
course of the interview, Glover “was saying these are false allegations, and the only
reason why * * * she was saying that [was] because they were going to move to
Beavercreek.” Schomburg stated that he told Glover “that the reason why she came
forward is because she’s having suicidal thoughts.” Schomburg stated that he did not
investigate whether the possibility of moving prompted T.H. to make allegations against
Glover. Schomburg testified that he asked T.H. if she ever walked around the house in an
open towel, and that she denied ever exposing herself to Glover.
On redirect examination, Schomburg testified that in his experience, delays
in disclosure in sexual abuse cases are “[v]ery common,” and that as a result, there is
often a lack of physical evidence of abuse. The following exchange occurred:
Q. So when the victim gives an interview on facts that can be
corroborated, such as all the things that occurred on March 18, were all the
statements she gave in relation to March 18th corroborated?
A. Yes, they were.
Q. By DNA evidence?
A. DNA evidence.
Q. By his own admissions?
A. His own admissions.
Q. When she said on March 18th, how she told her friend earlier,
was that corroborated?
-27-
A. Yes.
Q. So the fact that the Defendant decides to victimize a young child
where you can’t get physical evidence, you build the case by corroborating
when you can corroborate, correct?
MR. GABEL: Objection to the form of the question, Your Honor.
THE COURT: It is leading. I’ll sustain the objection.
BY MR.SCHOEN
Q. How do you - -
***
Q. - - corroborate things in cases like these?
A. Through the victim, through witnesses.
Q. And who’s been consistent in this case?
A. [T.H.].
I. Brenda Joyce Miceli
Brenda Joyce Miceli testified that she is employed at Kline and Associates
as a licensed psychologist, and that she has counseled “upwards of a thousand” victims
of childhood sexual abuse. The court designated her an expert in the area of childhood
sexual abuse. Miceli stated that teenage victims “would be more likely to have suicidal
behavior or cutting or substance use.” She stated that “most disclosures occur to a
trusted adult. However teenagers in particular, are more likely to disclose to a peer than to
an adult.” She stated that delayed disclosure is common, and “once an abuse has
happened one time and a child hasn’t told, they are less likely to tell as time passes.”
Miceli testified that most children, “when they make a disclosure, tend to make the
-28-
disclosure to someone they trust. It is usually done initially in a vague way where they
will provide some information, this person touched me or they did something wrong.
They don’t generally give specific details. And if that person responds in a supportive
way, they’re more likely to give more information.” Miceli stated, however, if “that person
responds in a way that the child perceives as being negative or scary. Then they’re less
likely to give any additional information.” She stated that for teenagers, “there can be,
actually once kids hit puberty there can be more embarrassment that they have in talking
about things. And oftentimes there’s information that they may not share as readily
because it’s more embarrassing.”
Regarding abuse that is ongoing, Miceli stated that some “children
compartmentalize and may continue to choose to have contact with the abuser because
they put it off on the side and say it’s not going to happen again.” Miceli testified that
“when you’ve had something that’s happened multiple times, it can be difficult to
remember specifics of any one event. If I ask you to tell me about every Christmas
you’ve had for the last ten years, you’re probably not going to be able to tell me details of
every Christmas but you could give me a general idea of what usually happens.” She
stated that you also “might be able to remember the things that * * * were different.”
According to Miceli, “the same goes for children recalling sexual abuse that oftentimes the
details of specific incidents may get lost unless there’s something unique about that
event.” She stated that “[f]ar and away kids are abused by people that they know,” and
that it “is generally someone that the child trusts and who’s in a position of authority to
them and has access to them.” She stated that the “research is clear that the closer the
relationship between a child and their abuser, the less likely they are to disclose abuse.”
-29-
Miceli stated that it is often difficult for children to disclose abuse because they worry “that
people might not believe them or that they will be in trouble and so that will keep them
from telling other people.” She stated that “[i]nternalizing behaviors are behaviors that
are turned more inward so there tends to be anxiety, nightmares, suicidal ideation,
depressive symptoms, cutting,” and that people around victims with internalizing
behaviors “are not aware of that.” On cross-examination, Miceli testified that she has not
met T.H. She stated that many young children who are abused are not aware “that
anything inappropriate has happened especially if it’s someone that they trust.”
J. J.D.
J.D. testified that she has a “good relationship” with Glover. She stated that
she met Glover at the home of a friend of hers in 2003, and that he moved into her home
in October of that year. J.D. testified that she was not employed at the time, and that she
receives Social Security income. J.D. stated that she and Glover had a daughter
together in 2008. According to J.D., in 2003, T.H. was “a good child,” and a “happy
child.” She stated that T.H.’s demeanor did not change after Glover moved into their
home. When asked if T.H. interacted with Glover, J.D. stated that Glover “talked to [T.H.]
and they jumped around, played and laughed, giggled, whatever.” She stated that her
household acted as a family together, and that they would “go out to eat, go to parks.”
According to J.D., they also went to visit Glover’s family in Mansfield, and that T.H. “was
happy and she liked going. * * * She got along with the family.”
J.D. stated that when T.H. was seven, she did not observe anything that
concerned her regarding T.H.’s relationship with Glover. J.D. acknowledged being
interviewed about T.H.’s allegations after March 18, 2014. When asked if she had ever
-30-
seen anything that would lead her to believe that Glover did anything improper with T.H.,
J.D. responded, “Not at all.” J.D. stated that she is a light sleeper, and that if “somebody
moving around my house, * * * I can hear it. I mean I jump up, you know.” J.D. stated
that the steps in the apartment on Iddings Court are squeaky, and that she never
observed or heard Glover carry T.H. down the steps.
J.D. stated that in December, 2013, she, Glover, T.H. and the three other
children resided on Bromley. She stated that during that time, T.H. invited S.K. and other
girls to the home to spend the night. According to J.D., Glover “stayed in our room when
[T.H.] would have company or he would be at work.” J.D. stated that on occasion she
would have to tell T.H. to put on more clothes in the home. According to J.D., “it would
be, you know, men in the house and his friends would be there and, you know, like [T.H.],
go cover up, you cannot be around these mens (sic) like this.”
J.D. stated that T.H. was a good student and that her grades were good and
that she participated in the school choir. She stated that T.H. “liked to go out with her
friends.” J.D. testified that she was unaware of T.H. ever cutting herself or taking pills in
an attempt to commit suicide. J.D. testified that she has been diagnosed with
schizophrenia, for which she takes medication. She stated that her medication would
not cause her to be unaware of what went on in her apartment. J.D. stated that T.H. has
not been diagnosed with depression. She stated that she has taken T.H. to Children’s
Medical Center for headaches.
J.D. stated that Glover has a drinking problem, and that she only allows
him to drink in their bedroom. She stated that he drinks beer and sometimes liquor, and
that he “drunk pretty heavy.” She stated that Glover drinks from the bottle, and that she
-31-
has not observed him drink from a glass. J.D. stated that she never observed Glover in
T.H.’s bedroom “without me being there.” J.D. described Glover as “a honest person”
and a “good person.” She stated that if she was unable to help T.H. with her homework,
T.H. would ask Glover for help, and that he would help her. J.D. stated that T.H. does not
have a relationship with her biological father, but that Glover has driven T.H. to her
father’s home occasionally to “pick up some money” for T.H. When shown Exhibit 2, J.D.
stated that she had never seen it before, and that T.H. never expressed to her the
contents of the exhibit.
On cross-examination, when asked about her emotional response to the
allegations of March 18, 2014, J.D. responded, “I was emotional for both parts, me being
in love with [Glover] and my daughter.” She stated that she has been communicating
with Glover since his arrest, and that she “sent him a couple of letters not that much and
pictures of my daughter and the kids,” but not of T.H. She stated that T.H.’s sister slept
with her and Glover most of the time and not in the bedroom with T.H., but that on March
18, 2014, the girl was in the bedroom with T.H.
K. Willie Blaney
Willie Blaney testified that he has known Glover for 25 years and that they
are both from Mansfield, where they grew up together. He stated that Glover’s father
was a pastor and that his mother “dealt with foster kids.” He testified that Glover worked
as a guard at the Mansfield Correctional Institute for three or four years. He stated that in
June 2003, he had a conversation with Glover, and that thereafter, Blaney “offered him to
come back down here and stay with me,” and that Glover did so. Blaney stated that he
lived at the Castlebrook apartment complex in Trotwood at the time. Blaney stated that
-32-
Glover resided with him for the “whole summer about four or five months.” Thereafter,
Blaney stated that Glover moved in with J.D. at “the end of September or around
October.”
Blaney stated that he visited Glover after he moved in with J.D., and that he
observed Glover with J.D.’s children. He stated that he never observed any
inappropriate conduct from Glover, and that the “kids loved him. They used to call him
[Mr. M.].” Specifically, Blaney stated that Glover’s relationship with T.H. “was playful. I
mean he talked to her like it was his daughter, you know.”
Blaney stated that he and Glover “drunk together,” and that they bought
“pints so we just drink out of the bottle” with “a beer for a chaser.” When asked if Glover
ever drank from a glass, Blaney stated that Glover did not “because he bought them little
short pints and shorties and stuff, so. There’s no need to put that in a glass.” He stated
that T.H. “was like a normal kid. You know, they ran, played, played in the mud. * * *
Played with her brothers.” When asked if T.H. ever appeared withdrawn in 2003, Blaney
responded, “[n]o. * * * She always was, I mean, the family mix, * * * doing things with the
family, laugh and giggle.” On cross-examination, Blaney stated that he went to J.D.’s
home on Iddings Court almost every day after Glover moved in, but that once the family
moved to Kettering, he did not have much contact with them.
L. J.D.
Defense counsel recalled J.D., who testified that she and Glover discussed
moving from Kettering to Beavercreek or Centerville, and that T.H. wanted to stay in the
Kettering area. According to J.D., T.H. “had got mad about the situation that we was
moving out of Kettering.” She stated that she and Glover were planning to get married.
-33-
J.D. stated that she moved into the Iddings Court address in the summer of 2003. She
testified that if Glover woke up in the middle of the night, she often got up as well to check
on him, and that “[h]e’d be sitting on the computer or he’d be sitting up in the bed smoking
a cigarette * * *.” She stated that Glover also would watch television when he woke up.
She stated that she never observed or heard Glover in T.H.’s bed.
J.D. testified that she is not afraid of Glover. She identified a “picture of
Easter with [Glover] and the kids,” outside having an egg hunt. She testified that T.H. is
in the photo, “sticking out her tongue,” and that she was seven when the picture was
taken. J.D. identified a photograph of Glover and T.H. “[b]eing funny. [Glover] got his
hands up and [T.H.] putting up the number one.” She identified another photo of Glover
and T.H., and she testified that T.H. is hugging Glover in the picture and smiling, and that
she was seven years old at the time. J.D. stated, “I just went through my picture book last
night,” and “we had a good life together.” J.D. identified a photograph of T.H. at the age
of nine and testified that “it’s [T.H.] and Marvin holding hands laughing.”
On recross-examination, when asked about Glover’s admission to three
incidents of sexual abuse, J.D. responded, “[h]e was pressured at the time and that’s why
he admitted to all them three charges. He didn’t do this. I’m telling you. I’ve been [with]
Marvin for 11 years.” J.D. testified that Glover has “always been a good person. Every
person I met, being around Marvin, * * * good things are said about Marvin, nothing bad.”
M. T.H.2
T.H.2 testified that T.H. is his sister, and that he is 15 years old. He stated
that he has never observed any inappropriate contact between Glover and T.H. He
stated that he can hear T.H. in her bed when “she’s moving around and stuff.” T.H.2
-34-
stated that he and T.H. have a close relationship. He stated that she never told him
anything about any sexual abuse perpetrated by Glover, and that if she had done so, he
would have told J.D.
N. D.D.
D.D. testified that he is 14 years old and in the eighth grade, and that T.H. is
his sister. D.D. stated that he and T.H. have a good relationship, but that she does not
confide in him. He stated that he has not heard any sounds from T.H.’s bedroom, and
that J.D. gives him pills “to help me sleep.” D.D. testified that Glover “was my dad,” and
that “he’s a nice guy.” D.D. testified that he never observed Glover engage in
inappropriate conduct with T.H., and that T.H. never advised him that Glover did so.
O. B.G.
B.G. testified that she resides on Bromley Place, that J.D. is her fiancé’s
sister, and that she resides next door to J.D., having lived there for four years. She stated
that prior to March 18, 2014, she often went to J.D.’s apartment, and that she spoke to
J.D. on the phone several times a day. B.G. stated that J.D. is involved with her children
and would “do special things for them.” She stated that if Glover was not at work, “he
would be with them going on their outings, for special occasions and stuff also.” She
stated that Glover acted appropriately around the children in her presence. According to
B.G., T.H. and Glover “acted like a normal loving father/daughter kind of way. She talked
to him * * * like it was her dad. Like there was nothing wrong.”
P. Marvin Glover
Glover testified that he is 43 years old, and that he was born in Mansfield.
He stated that his father was a pastor, and that his mother “started off working as a janitor
-35-
at school and then later on * * * she started keeping foster care.” Glover stated that he
completed high school and two years at Central State University, and that he has worked
since he was 16 years old. After college, Glover stated that he returned to Mansfield and
became a corrections officer. He stated that after four years he resigned after his mother
passed away, moved to Toledo for a short time, and then returned to Mansfield. Glover
stated that he developed a drinking problem and a drug problem after his mother passed
away, and that he moved to Dayton “to get away from it.”
Glover acknowledged that he moved into Blaney’s home at the
Castlebrook Apartments because he himself “was heading for destruction” due to his
drinking in Mansfield. Glover stated that he met J.D. while at Blaney’s, and that he
initially thought she resided at the Castlebrook Apartments as well, but then he later
learned that she was visiting a friend there every day, and that she in fact had her own
home. He stated that one day in August 2003 J.D. did his laundry for him at her home
and put it away there. Glover stated he initially took some of his clothes back to Blaney’s
apartment, but that “as time went on, I end up moving in with her and that was probably *
* * about the end of September, beginning of October” of 2003.
Glover denied having sex with J.D. in the presence of the children because
“it’s not appropriate to do that in front of children.” Glover stated that in October 2003 he
“got a job at McDonald’s downtown,” and that he “would catch the bus and I would work,
like, until sometimes close. I’d catch the last bus * * * and get home probably about 1
o’clock.” When he arrived home, Glover stated that J.D. “would be up, she would come
up, sit up and talk to me for a while and then we would just go to bed.”
Glover stated that he subsequently got a job as a machine operator at
-36-
Select Tool & Die, and that he worked third shift. Glover stated that he worked twelve hour
shifts for three or four months, and that he then “went to school for nurse aid” at the Miami
Valley Career Center. Glover stated that he worked for Comprehensive Home Health
Care “for about two years and then the company went under.”
Glover testified that in September 2013, he began working in Franklin, Ohio,
at the Burrows Paper Company, where he worked “60-hour weeks.” Glover stated that he
lost that job in the first week of March 2014. When asked how he lost his job, Glover
stated that he was cited for a misdemeanor offense after he purchased a bag of marijuana
at the downtown bus hub. He stated that when he lost his job he “was hurt about it, so I
started back drinking heavy.” He stated that he advised J.D. that he wanted to move to
Columbus to get a better job, and that she said if he did so she wanted to go with him.
Glover stated that he knew that T.H. “didn’t want to go to another school, so I wasn’t going
to do that to her * * *.” Glover stated that in December 2013, he went to work at 3:00 p.m.
and did not get home until between 4:00 and 4:30 a.m.
Glover stated that when T.H. was seven to eight years old, she was “just a
typical child” and “playful.” Glover identified the photographs identified by J.D. in the
course of her testimony. Glover stated that he drinks beer from a bottle, and that J.D.
does not have glasses at her home but only plastic cups.
Glover acknowledged that he initially repeatedly denied abusing T.H. in his
interview with Schomburg. When asked why he did so, he replied, “Because I was
afraid. I was afraid because I didn’t believe that she called the police on me because
[T.H.] wanted it. I mean I was the adult. I was wrong. When I went in that room that
morning * * * [T.H.] kicked her leg open, showed me her vagina. I was wrong. I
-37-
admitted it. * * *.” Glover stated that he finally admitted that he “gave her oral sex” after
the detective told him that T.H. wanted to kill herself. According to Glover, the Detective
“kept asking. He kept asking me. Did I do it any other time and I told him no. And then
I started crying. And then I told him it happened, I told him it happened three times.”
Glover acknowledged that he initially indicated that it happened two or three times but
then admitted that it happened a total of three times. He stated that T.H. “has been
coming on to me * * * dozens of times,” and that he told J.D. about it. According to
Glover, T.H. “was flashing herself to me. I mean I got weak. It’s just like Adam and Eve.
I ate the apple. I messed up, that’s why I came clean.” Glover, however, denied
committing the offenses for which he stood trial during his testimony.
II. Assignments of Error
A. First Assignment of Error
Glover asserts three assignments of error herein. His first assigned error is
as follows:
THE TRIAL COURT ERRED IN PERMITTING IRRELEVANT,
HEARSAY AND PREJUDICIAL “OTHER ACTS” TESTIMONY THEREBY
DENYING APPELLANT HIS RIGHT TO DUE PROCESS OF LAW AND TO
A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16
OF THE OHIO CONSTITUTION.
Glover asserts that “it was prejudicial error for the court to admit the 911 call;
the SANE nurse[’s] testimony concerning the details of the March 18, 2014 incident; the
DNA evidence from the crime lab; T.H.’s testimony and all evidence of other, unindicted
-38-
acts of the alleged abuse of T.H. by appellant; and the detailed testimony of T.H. as it
pertained to the incident from March 18, 2014.” Glover “further argues that the testimony
of S.K. about what T.H. told her and sent her as Exhibit 2; and T.H.’s use of the written
statement and its admission into evidence were inadmissible hearsay.”
As this Court has previously noted:
Absent an error of law, the admission or exclusion of evidence is a
matter committed to the discretion of the trial court, and its decision
regarding the admission and exclusion of evidence will not be reversed
absent a demonstration of an abuse of that discretion. State v. Bell, 176
Ohio App. 3d 378, 2008–Ohio–2578, 891 N.E.2d 1280, ¶ 40 (2d Dist.). An
abuse of discretion occurs when the trial court's decision is unreasonable,
arbitrary or unconscionable. State v. Adams, 62 Ohio St. 2d 151, 157, 404
N.E.2d 144 (1980).
State v. Ashe, 2d Dist. Montgomery No. 26528, 2016-Ohio-136, ¶ 24.
Evid.R. 401 defines relevant evidence as “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” “ ‘Hearsay’ is a
statement, other than one made by the declarant while testifying at trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C).
We note that we are mindful of the “usual presumption that in a bench trial in
a criminal case the court considered only the relevant, material, and competent evidence
in arriving at its judgment unless it affirmatively appears to the contrary.” State v. White,
15 Ohio St. 2d 146, 151, 239 N.E.2d 65 (1968).
-39-
1. 911 Call
Glover specifically asserts that while the “statements in the 911 call
pertaining to the events of March 18, 2014 were excited utterances, they were
nonetheless irrelevant to the charges being tried,” and that the portion of the call wherein
T.H. claimed that the abuse happened from the time she was seven is hearsay not within
the excited utterance exception. According to Glover, the “crime of gross sexual
imposition with 17 year old T.H. does not make the existence of any fact of consequence
to the determination of the rape charges from a decade earlier, more or less probable.
[Its] purpose was to both prove appellant acted in conformity therewith; and to bolster the
credibility of T.H.”
The State responds that “T.H.’s statement that Glover’s abuse started
when she was seven was admissible as an excited utterance,” and that the “court did not
commit plain error by not excluding it on hearsay grounds.” Regarding the portion of the
call relating to the events of March 18, 2014, the State asserts that “evidence of other
crimes, wrongs, or acts may be admissible to show the background of the alleged crimes
at issue,” pursuant to Evid.R. 404(B). According to the State, “T.H.’s statements on the
911 call as to the events of March 18, 2014, were important and relevant to demonstrate
how the allegations against Glover first came to light, how the investigation began, why
T.H. ended up in the hospital that morning, and how Glover came to be interviewed the
next day.” The State asserts that “excluding all evidence as to what Glover had done to
the girl that morning would have deprived the fact-finder of the context of the crime,
leaving only the testimony of the girl that he had molested her twice on Iddings Court,
eleven years before trial, and once on Bromley Place, in December, 2013.”
-40-
As set forth above, defense counsel objected to the admission of the 911
recording based upon its alleged lack of relevance to the charges before the court.
Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Regarding
Evid.R. 404(B), “a reviewing court should not disturb evidentiary decisions in the absence
of an abuse of discretion that has created material prejudice. * * *. ‘Prejudice occurs if
there is a reasonable possibility that the error might have contributed to the conviction.’ *
* *.” State v. Miller, 2d Dist. Montgomery No. 26371, 2015-Ohio-2714, ¶ 12.
The portion of the recording pertaining to the events of March 18, 2014, as
the State asserts, is relevant to provide context for the factfinder in understanding how
and why the investigation into Glover’s criminal conduct commenced. In other words, the
evidence is admissible pursuant to Evid.R. 404(B), and we have no basis to conclude that
Glover was materially prejudiced by its admission. Accordingly, we find no abuse of
discretion in the admission of that portion of the call.
We note that defense counsel did not object on the basis of hearsay to the
portion of the 911 call wherein T.H. claimed that she had been abused by Glover from the
age of seven. As this Court has noted:
Failure to object waives all but plain error. McBride v. Quebe,
Montgomery App. No. 21310, 2006-Ohio-5128. Plain error exists “if the
trial outcome would clearly have been different, absent the alleged error in
the trial court proceedings.” State v. Rollins, Clark App. No. 2005–CA–10,
-41-
2006-Ohio-5399. “[T]o successfully prevail under plain error the
substantial rights of the accused must be so adversely affected that the
error undermines the ‘fairness of the guilt determining process.’ ” State v.
Ohl (Nov. 27, 1991), Ashland App. No. CA–976, 1991 WL 274508.
State v. Bahns, 185 Ohio App. 3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.).
We have no basis to conclude that the outcome of the trial would have
been different if the court did not admit the portion of the 911 call wherein T.H. indicated
that Glover had abused her since she was seven years old. T.H. testified as to the
ongoing nature of the abuse over 11 years and Glover’s consistent pattern in abusing her.
Further, as discussed below in our analysis of the second assignment of error, we
conclude that the statement falls within the excited utterance exception to the hearsay
rule, as the State asserts.
2. Dallaire’s Testimony
Citing Dallaire’s testimony that Glover’s DNA was found on T.H.’s right
breast and in her underwear, and Ping’s testimony about T.H.’s statements to her
regarding the offense of March 18, 2014, Glover asserts that such evidence “was to have
the effect of showing that since T.H. told the truth about the incident of March 18, 2014,
she should be believed about the rapes from 2002-2004.” According to Glover, “[t]his
evidence, in addition to being irrelevant to the offenses being tried, was an improper
support of T.H.’s credibility pursuant to Evid.R. 608. Specific instances of the conduct of a
witness, for the purpose of supporting the witness’s character for truthfulness, may not be
proved by extrinsic evidence.” According to Glover, the State “argued that the objected to
evidence was necessary to bolster [T.H.’s] credibility regarding her testimony of what she
-42-
claimed occurred in 2002 to 2004.”
The State responds that “[w]hat [T.H.] told Ms. Ping about the prior abuse
was admissible under Evid.R. 803(4); what she said about the crime that just occurred
made sense of it.” The State asserts that defense counsel attacked T.H.’s credibility and
suggested two motives for T.H. to make false allegations against Glover: “first, that her
mother and Glover were thinking of moving the family to Beavercreek and she did not
want to leave her friends in Kettering; and second, that she was angry because her
mother had taken Glover’s side against her for whatever involvement she may have had
in facilitating her friend [S * * * * y’s] all-night outing.” According to the State, “T.H.’s
consistent statements to Ms. Ping on March 18, 2014, about the prior abuse were
relevant and admissible not only to show the immediate background of the three
remaining counts, but also as a prior consistent statement under Evid.R. 801(D)(1) to
rebut the suggestion that her trial testimony about the prior abuse was the result of
improper motive or influence.”
Evid.R. 608(B) provides that “[s]pecific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness’s character for truthfulness
* * * may not be proved by extrinsic evidence. * * *.”
Evid.R. 801(D) provides that “[a] statement is not hearsay if: (1) * * * The
declarant testifies at trial and is subject to cross-examination concerning the statement,
and the statement is * * * (b) consistent with declarant’s testimony and is offered to
rebut an express or implied charge against declarant of recent fabrication or improper
influence or motive.”
Evid.R. 803(4) provides that “[s]tatements made for purposes of medical
-43-
diagnosis or treatment and describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment” are not excluded from the hearsay rule.
We agree with the State that T.H.’s credibility was the central issue herein.
We note that the State does not address Glover’s argument that Dallaire’s testimony
regarding the presence of Glover’s DNA on T.H.’s right breast and her underwear was
improperly admitted. We conclude, as the trial court noted, that Dallaire’s testimony was
relevant and probative of T.H.’s credibility; the evidence tended to corroborate what T.H.
stated happened to her on March 18, 2014, and we presume that the trial court
considered it for a proper purpose and not as evidence of T.H.’s truthfulness regarding
the offenses before the court.
3. Ping’s testimony
Glover objected to Ping’s testimony on the basis of relevance to the
offenses before the court and not on the basis of hearsay, and he does not argue herein
that Ping’s testimony constituted inadmissible hearsay, so we need not address the
State’s argument that Ping’s testimony was admissible pursuant to Evid.R. 801(D) to
rebut an implication of improper influence or motive, or pursuant to Evid.R. 803(4) for
purposes of medical treatment. As with the 911 call, T.H.’s statements to Ping were
relevant to demonstrate the initiation and context of the investigation into Glover’s
conduct, as well as to provide context for the course of Ping’s examination of T.H.
We review Glover’s argument that the admission of Ping’s testimony
violates Evid.R. 608(B) pursuant to plain error analysis, since Glover did not so object at
trial. We cannot conclude that the admission of the testimony at issue affected Glover’s
-44-
substantial rights so adversely that the fairness of the guilt determining process is
undermined. The court correctly found that the events of March 18, 2014 were relevant
and admissible, and we presume that the trial court did not improperly consider the
evidence in any fashion. We note that Glover mischaracterizes the record by suggesting
that the State “argued that the objected to evidence was necessary to bolster [T.H.’s]
credibility regarding her testimony of what she claimed occurred in 2002 to 2004.”
However, Glover directs our attention to his objection to the admission of the 911 call, and
the State’s response thereto, as opposed to any specific objection to Ping’s testimony.
Finally, we note that the court further found Ping’s testimony admissible to establish the
chain of custody of the sexual assault kit, which defense counsel had challenged during
Dallaire’s testimony.
4. March 18, 2014 Evidence and Evidence of Uncharged Crimes
Glover next asserts that T.H.’s testimony regarding the events of March 18,
2014 and of other uncharged crimes was inadmissible. According to Glover, “T.H.’s
testimony that the abuse was ongoing for eleven years was improper pursuant to Evid.R.
404(B); and the probative value was substantially outweighed by the danger of unfair
prejudice. Evid.R. 403(A).” He asserts that the “evidence was an attack on appellant’s
character and the state may not offer evidence in its case-in-chief of the accused’s
character to show a general propensity to commit the acts underlying the crimes being
tried.” Glover asserts that T.H.’s testimony about the events of March 18, 2014 and
“uncharged incidents of abuse were aimed at appellant’s character and to show he acted
in conformity therewith regarding the rapes of 2002-2004.”
The State responds that the “references to the uncharged assaults were
-45-
brief and few, and some were elicited by defense counsel on cross-examination.” The
State argues that Glover’s pattern of abuse was “the same in almost every detail so that
the two occasions that varied slightly from the script, Counts 2 and 4, were memorable to
her.” Citing Miceli’s testimony, the State asserts that T.H.’s testimony regarding the 11
years of abuse “was relevant and admissible to explain why she did not disclose the
abuse to her mother or any other adult.” The State asserts as follows:
The prosecutor never attempted to exploit T.H.’s brief references to
the fact that the abuse was continuing, and it was evident from the context
of the entire trial that the references to uncharged conduct were neither
introduced nor used to suggest that Glover had a propensity to commit such
crimes or to unfairly attack his character, and there is no suggestion that the
court used the evidence improperly in finding Glover guilty. * * *
Evid.R. 404(A) provides in part that “[e]vidence of a person’s character or a
trait of character is not admissible for the purpose of proving action in conformity therewith
on a particular occasion * * *.” Evid R.404(B) is set forth above. The record reflects that
the trial court allowed T.H. to testify regarding the events of March 18, 2014 and the prior
abuse over the years as proof of Glover’s pattern or plan of abuse, namely that he
consistently performed oral sex on T.H. in her bed in the early morning hours. We note
that in Glover’s Notice of Alibi, he suggested that he lacked opportunity to abuse T.H. due
to his work schedule, and T.H.’s testimony that he targeted her in the early morning hours
repetitively demonstrates plan and opportunity. We further agree with the State’s
assertion that the references to the uncharged conduct were brief and cursory; the
majority of the testimony was addressed to the indicted charges. Additionally, as the
-46-
State asserts, the offenses in counts 2 and 4 were memorable to T.H. because the abuse
was distinct from the usual pattern; count 2 alleged that Glover first carried T.H.
downstairs before abusing her, and count 4 alleged that he digitally penetrated her for the
first time. We cannot conclude that the trial court abused its discretion in admitting T.H.’s
testimony regarding the events of March 18, 2014 and the other unindicted offenses, and
we presume that the trial court properly considered the evidence.
5. S.K.’s Testimony and Exhibit 2
Finally, Glover asserts that “S.K. was permitted to testify that T.H. told her
about the abuse and identified appellant as the abuser. * * * T.H.’s statements to S.K.
were hearsay.” He further asserts that Exhibit 2 “was an out of court statement offered to
prove the truth of the matter asserted, ie., the first alleged rape from 2002-2004.” Glover
asserts that both S.K. and T.H. testified about Exhibit 2, and that “this was inadmissible
hearsay and did not fall under Evid.R. 801(D)(1)(b) as T.H. had not been cross examined
and there was no express or implied charge of recent fabrication.” According to Glover,
“T.H. could have testified she wrote the letter and why, but permitting her to testify from
the letter and admitting it into evidence was improper.” He asserts that “S.K.’s entire
testimony about the letter was inadmissible hearsay.” Glover asserts that “S.K. testified
that she had no personal knowledge of any of the events and her testimony was solely
from what T.H. had told her in out of court statements.” He asserts that “S.K.’s testimony
was clearly admitted to bolster T.H.’s credibility and constituted inadmissible hearsay.”
The State responds that the “evidence came in without objection, so it is
subject to plain error analysis.” The State further asserts that “S.K.’s testimony and the
letter were prior consistent statements offered to rebut an express or implied charge of
-47-
recent fabrication, or improper motivation or influence. Evid.R. 801(D)(1)(b).” The
State asserts that “admission of the evidence was not error at all, much less plain error.”
We note that the State did not address Glover’s argument that T.H.’s testimony about
Exhibit 2 is hearsay.
Glover directs our attention to T.H.’s direct examination in which she
indicated that she wrote the letter contained in Exhibit 2 to her mom and dad but did not
deliver it to them because she did not want to make J.D. “mad.” She testified that in the
letter she indicated that the abuse began when she was six, that it made her feel confused
and depressed, and that she cut herself and took “a bunch of pills” when she was 17 as a
result of the abuse. T.H. testified that she indicated in the letter that she felt that she
could not come forward about the abuse because Glover is “my sister’s dad and my mom
loved him and everyone thought he was a good person.” On redirect examination, she
acknowledged that she recounted the specifics of the first incident of abuse in the letter.
S.K. testified that T.H. disclosed abuse to her and that she did not learn
that Glover was the abuser or that the abuse was ongoing until the summer before her
junior year. She identified Exhibit 2 and stated that T.H. sent it to her on Facebook on
October 24, 2013, and that T.H. therein disclosed specifics of the abuse and her feelings
about it.
Even if we were to conclude that T.H.’s testimony on direct about the
contents of Exhibit 2 amounts to inadmissible hearsay, plain error is not demonstrated.
On cross-examination, defense counsel extensively questioned T.H. about Exhibit 2,
quoting therefrom verbatim. Accordingly, we have no basis to conclude that T.H.’s
testimony as cited by Glover undermined the fairness of the guilt determining process.
-48-
As to S.K.’s testimony, by the time she testified, defense counsel had recited the contents
of Exhibit 2 into the record, and we cannot conclude that the outcome of the proceeding
would have been different in the absence of S.K.’s testimony.
For the foregoing reasons, in the absence of an abuse of discretion or plain
error, Glover’s first assigned error is overruled.
B. Second Assignment of Error
Glover’s second assignment of error is as follows:
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL BY COUNSEL’S FAILURE TO OBJECT TO THE
INTRODUCTION OF HEARSAY EVIDENCE.
Glover asserts that “trial counsel was deficient for failing to object to the use
of Exhibit 2 and its admission into evidence; Detective Schomb[u]rg’s repeated testimony
that the out of court hearsay statements of T.H. and S.K. were consistent with their trial
testimony * * *; T.H.’s out of court hearsay statements as testified to by S.K.; and any of
the evidence set forth in the first assignment of error to which counsel did not object.”
According to Glover, “T.H.’s testimony was improperly bolstered by T.H.’s out of court
statements to Detective Schomburg, S.K., the SANE nurse and the crime lab.” Glover
asserts that he “would not have been convicted if counsel had objected and the
inadmissible evidence had been excluded.”
The State responds that it demonstrated that the evidence in the first
assignment of error was not hearsay. The State further argues that Schomburg’s
“testimony that T.H.’s story of what happened had remained consistent from March 18,
2014, onward was not an out of court statement offered for the truth of the matter
-49-
asserted, so it was not hearsay under Evid.R. 801(C).” According to the State, if “the
prosecutor asked the detective to recount from the witness stand what T.H. had told him
about the crimes and offered that testimony as proof that Glover was guilty, then counsel
could have objected on hearsay grounds. But here, counsel did not ask for a statement
at all, only an opinion as to whether T.H.’s accounts of what happened” were consistent.
As this Court has previously noted:
To establish a claim for ineffective assistance of counsel, the
defendant has the burden of demonstrating that: 1) the performance of
defense counsel was seriously flawed and deficient; and 2) there is a
reasonable probability that the result of the defendant's trial or legal
proceeding would have been different had defense counsel provided proper
representation. State v. LeGrant, 2d Dist. Miami No. 2013–CA–44, 2014–
Ohio–5803, ¶ 26, citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Therefore, to reverse a conviction based on
ineffective assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of reasonableness, and
that counsel's deficiencies were serious enough to create a reasonable
probability that, but for the deficiencies, the result of the trial would have
been different.
State v. Dover, 2d Dist. Clark No. 2013-CA-58, 2015-Ohio-4785, ¶ 7.
As this Court further noted in Dover:
It is well established that ineffective assistance of counsel affects a
substantial right afforded by the United States and Ohio Constitutions.
-50-
Strickland v. Washington, supra; State v. Bradley, 42 Ohio St. 3d 136, 538
N.E.2d 373 (1989). “Trial counsel is entitled to a strong presumption that his
or her conduct falls within the wide range of reasonable assistance, and a
defendant, in order to overcome the presumption that counsel is competent,
must show that counsel's decisions were ‘not trial strategies prompted by
reasonable professional judgment.’ ” State v. Few, 2d Dist. Montgomery
No. 21561, 2012–Ohio–5407, ¶ 10, quoting Strickland at 687. “Hindsight is
not permitted to distort the assessment of what was reasonable in light of
counsel's perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance of
counsel.” Id. at ¶ 11, quoting State v. Nabors, 2d Dist. Montgomery No.
24582, 2012–Ohio–4757, ¶ 17. “Even if unsuccessful, strategic decisions
will not constitute ineffective assistance of counsel.” Id., citing State v.
Carter, 72 Ohio St. 3d 545, 558, 651 N.E.2d 965 (1995). Generally, the
decision regarding which defense to pursue at trial is a matter of trial
strategy, and trial strategy decisions are not a basis of a finding of
ineffective assistance of counsel. State v. Moss, 2d Dist. Montgomery No.
22496, 2008–Ohio–6969, ¶ 35, citing State v. Murphy, 91 Ohio St. 3d 516,
524, 747 N.E.2d 765 (2001); State v. Dixon, 101 Ohio St. 3d 328, 2004–
Ohio–1585, 805 N.E.2d 1042, ¶ 52[.]
When the issue of effective assistance is appealed, reviewing courts
are often faced with that task of scrutinizing whether an attorney's conduct
was based on sound trial strategy, or was constitutionally defective. In
-51-
those cases, we have recognized that:
“Judicial scrutiny of counsel's performance is to be
highly deferential, and reviewing courts must refrain from
second-guessing the strategic decisions of trial counsel. To
justify a finding of ineffective assistance of counsel, the
appellant must overcome a strong presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” State v. Carter (1995), 72 Ohio St. 3d
545, 558.
“As a result, trial counsel is entitled to a strong
presumption that all decisions fall within the wide range of
reasonable professional assistance.” State v. Sallie (1998),
81 Ohio St. 3d 673, 675.
State v. Wheeler, 2d Dist. Montgomery No. 24427, 2011–Ohio–5565, ¶¶
14–15.
Dover, 2015-Ohio-4785, at ¶ 10-11.
To the extent that Glover may be arguing that defense counsel was
ineffective in failing to object to the hearsay nature of the 911 recording, based upon his
assertion in the first assignment of error that the 911 recording contained hearsay, we
agree with the State that the recording falls within the excited utterance exception to the
hearsay rule. Pursuant to Evid.R. 803(2), an excited utterance is 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.” As the Supreme Court of Ohio has indicated, “[t]he
-52-
admission of a declaration as an excited utterance is not precluded by questioning which:
(1) is neither coercive nor leading, (2) facilitates the declarant's expression of what is
already the natural focus of the declarant's thoughts, and (3) does not destroy the
domination of the nervous excitement over the declarant's reflective faculties.” * * * State
v. Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 95.
We have listened to the 911 recording, and it reflects that T.H. was
extremely emotional in the course of the call, and that she indicated that Glover abused
her from the age of seven in response to a question by the dispatcher that was neither
coercive nor leading. The focus of T.H.’s thoughts at the time was Glover’s abuse of her
and her inability to withstand it any longer, and the recording reflects that the subsequent
question by the dispatcher as to how long the abuse had been occurring did not destroy
the domination of the nervous excitement over her reflective faculties. The testimony of
Sanders and Mason supports this conclusion. Accordingly, we cannot conclude that had
counsel objected to the recording on the basis of hearsay, the outcome of the trial would
be different.
As to the admission of Exhibit 2, we note that defense counsel
cross-examined T.H. extensively about the exhibit, and we conclude that he intended to
do so, rather than objecting to its introduction and admission, as a matter of trial strategy
to impugn T.H.’s credibility by means of statements therein that were inconsistent with her
testimony, as well as to suggest that someone else helped her write it.
As to Schomburg’s testimony regarding the consistency of T.H.’s version
of events over time, and the consistency of S.K.’s version of events with that of T.H., we
cannot conclude that the result of Glover’s bench trial would have been different if
-53-
defense counsel had objected to the detective’s testimony. T.H. provided detailed
testimony regarding each of the offenses before the court, which she specifically
remembered because they were unique. S.K. testified after T.H., and her testimony
reflects that T.H. disclosed the abuse to her in a manner consistent with T.H.’s testimony.
S.K. identified Exhibit 2 as the message she received from T.H., and as discussed above,
defense counsel did not object to the admission of Exhibit 2 as a matter of trial strategy.
Accordingly, we conclude that ineffective assistance of counsel is not demonstrated.
Glover’s second assigned error is overruled.
C. Third Assignment of Error
Glover’s third assigned error is as follows:
APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
Glover asserts that “T.H.’s testimony of events alleged from ten years
earlier was conflicting in several details.” He asserts that her testimony was inconsistent
as to the frequency of the abuse, how often he left money on her dresser, what she wore
at the time of the first incident, and when she began cutting herself. Glover notes that
“T.H.’s purported memory of the first alleged incident in 2003 was presented as clearer
than her memory of specific details of the alleged incident of gross sexual imposition from
December, 2013.” Glover further notes that T.H. never told anyone about the ongoing
abuse, and that S.K. never told her own parents. Glover asserts that there “was no
corroborating evidence of T.H.’s allegations of rape.” According to Glover, if “this Court
overrules the first and second assignments of error and holds that the complained of
evidence was properly admitted, the trial court nonetheless could not use that evidence to
-54-
prove that appellant acted in conformity therewith regarding” the offenses before the
court.
The State responds that T.H.’s “inability to accurately remember how often
or how regularly Glvoer molested her over the course of 11 years does not mean the
judge lost his way in crediting her testimony about the three crimes about which she
offered detailed testimony.” According to the State, the number of times Glover left
money on T.H.’s dresser “is not an element of the crimes with which he was charged,” and
that whether she wore a nightdress or pajamas the first time she was abused is
“inconsequential, especially when compared to the details she did recall.” The State
asserts that the court “was not required to disbelieve” T.H. about the cutting and suicide
attempt “simply because she never told her mom and the scars eventually faded.” The
State asserts that T.H.’s “testimony was not incredible simply because she did not
disclose the abuse to an adult until she called 911 in March of 2014.” The State asserts
that the fact that her mother never noticed her depression and cutting behavior is not
evidence that T.H. is not credible. Finally, the State asserts that there is “no reason to
believe that the judge who found Glover guilty did so by using [Evid.R. 404(B)] evidence
as proof of his propensity to commit the crimes.”
As this Court has previously noted:
When analyzing a challenge to the manifest weight of the evidence,
the court, 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
-55-
conviction must be reversed and a new trial ordered. State v. McKnight, 107
Ohio St.3d 101,112, 2005–Ohio–6046, 837 N.E.2d 315. The discretionary
power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction. Id.
The credibility of the witnesses and the weight to be given to their
testimony are primarily matters for the trier of facts to resolve. State v.
DeHass, 10 Ohio St. 2d 230, 231, 227 N .E.2d 212 (1967). “Because the
factfinder * * * has the opportunity to see and hear the witnesses, the
cautious exercise of the discretionary power of a court of appeals to find that
a judgment is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder's determinations of
credibility. The decision whether, and to what extent, to credit the testimony
of particular witnesses is within the peculiar competence of the factfinder,
who has seen and heard the witness.” State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
State v. Henderson, 2d Dist. Montgomery No. 26018, 2014-Ohio-4601, ¶ 23-24.
Glover was convicted of two violations of R.C. 2907.02, which provides:
“(A)(1) No person shall engage in sexual conduct with another who is not the spouse of
the offender * * * when any of the following applies: * * * (b) The other person is less than
thirteen years of age, whether or not the offender knows the age of the other person.”
Glover was convicted of one violation of R.C. 2907.03, which proscribes sexual battery
and provides: “(A) No person shall engage in sexual conduct with another, not the spouse
of the offender, when * * * (5) The offender is the other person’s natural or adoptive
-56-
parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other
person.” R.C. 2907.01(A) defines “sexual conduct” in part as “cunnilingus between
persons regardless of sex; and, without privilege to do so, the insertion, however slight, of
any part of the body * * * into the vaginal * * * opening of another.”
Having reviewed the entire record, we cannot conclude that Glover’s
convictions are against the manifest weight of the evidence due to the inconsistencies in
T.H.’s testimony and her delay in disclosing the abuse. Miceli testified, as an expert in the
dynamics of childhood sexual abuse, that inconsistencies are common in delayed
disclosure cases involving multiple instances of abuse, because “it can be difficult to
remember specifics of any one event” unless “there’s something unique about that
event.” While T.H. may not have remembered all of the specific details of the offenses
before the court, her testimony was clear that in the course of the first instance of abuse
on Iddings Court, Glover entered her room in boxer shorts, put his drink on her dresser,
performed oral sex on her in her bed, smelled of alcohol, and told her that the abuse was
their little secret. Similarly, T.H.’s testimony was clear as to the subsequent offenses
where Glover deviated from his usual pattern of performing oral sex on T.H. in her bed by
carrying her downstairs before abusing her in the living room on Iddings Court, and
subsequently by digitally penetrating her on Bromley Place, causing a sharp pain that
prompted T.H. to push him off, resulting in Glover’s apology and promise not to do it
again. The factfinder credited T.H.’s testimony, and we defer to the court’s assessment
of credibility.
Further, we note Miceli’s testimony that it is common for child victims not
to disclose sexual abuse until adulthood. Miceli stated that many young children are not
-57-
aware that anything inappropriate has happened to them when the abuser is someone
they trust, and we note that T.H. testified that in the course of the first instance of abuse,
she did not know what to do. Miceli testified that “once an abuse has happened one time
and the child hasn’t told, they are less likely to tell as time passes.” Miceli testified that
children also commonly disclose abuse in a vague and incremental fashion to someone
they trust, and the record reflects that T.H. did so with S.K. Miceli testified that some
children “compartmentalize” the abuse and continue contact with their abuser, and T.H.
testified that she did not want to tear her family apart, so she “just acted like it wasn’t
happening until I got older.” Miceli stated that it is difficult for children to disclose abuse
because they worry that they will not be believed or get into trouble, and T.H. testified that
she did not disclose the abuse because she feared angering her mother. S.K. testified
that T.H. feared that her family would be torn apart if she disclosed the abuse.
While Glover suggests that J.D.’s failure to notice T.H.’s depressive
symptoms impugns T.H.’s credibility, J.D. suffers from a mental illness, and Miceli
testified that child victims of sexual abuse often exhibit internalizing behaviors “that are
turned more inward so there tends to be anxiety, nightmares, suicidal ideation,
depressive symptoms, cutting,” and that those around victims with internalizing behaviors
often “are not aware of that.” T.H. testified that she cut herself and attempted suicide, and
that she did not confide in J.D. or seek medical treatment.
Finally, as noted above, Glover was tried to the bench, and we presume
that the trial court considered only the relevant, material, and competent evidence in
arriving at its judgment, and we conclude that the record does not affirmatively reflect, as
Glover asserts, that the court improperly considered evidence of other crimes, wrongs or
-58-
acts to prove Glover’s character in order to show action in conformity therewith, in
violation of Evid.R. 404(B).
Having thoroughly reviewed the entire record, weighed the evidence and
all reasonable inferences, and deferring to the trial court’s assessment of credibility, we
conclude that a manifest injustice is not demonstrated, and that Glover’s convictions are
not against the manifest weight of the evidence. Glover’s third assignment of error is
overruled.
The judgment of the trial court is affirmed.
..........
FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Carley J. Ingram
James S. Armstrong
Hon. Barbara P. Gorman