State v. Blachowski , 2019 Ohio 2331 ( 2019 )

[Cite as State v. Blachowski, 2019-Ohio-2331.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO :
Plaintiff-Appellee, :
No. 107616
v. :
SCOTT BLACHOWSKI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 13, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626046-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jennifer A. Driscoll and Debora Brewer,
Assistant Prosecuting Attorneys, for appellee.
John T. Forristal, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Scott Blachowski, appeals from his convictions
for rape, gross sexual imposition, and endangering children. Finding no merit to
the appeal, we affirm.
I. Background
In February 2018, a Cuyahoga County Grand Jury charged
Blachowski in a sixteen-count indictment with six counts of rape in violation of R.C.
2907.02(A)(1)(b); six counts of gross sexual imposition in violation of R.C.
2941.148(A); and four counts of endangering children in violation of R.C.
2919.22(B)(1). All of the rape and gross sexual imposition counts carried a sexually
violent predator specification. Blachowski pleaded not guilty, and the matter
proceeded to a jury trial.
P.T., the great-grandmother of E.T., the victim, testified that she
obtained custody of E.T.’s mother, K.T., when K.T. was nine years old. She testified
that K.T. gave birth to E.T. when she was 16 years old, but only a few weeks after
giving birth, K.T. “started becoming wild again, drinking, taking marijuana,” and did
not want to care for E.T. P.T. said that K.T. and Blachowski lived with her but had a
volatile relationship marred by drinking, drug use, and domestic violence.
Blachowski and K.T. moved out of P.T.’s home when E.T. was one
year old, and P.T. continued to care for the child. K.T. regained custody of E.T. when
he was a toddler, however, and E.T. moved in with her and Blachowski. P.T. testified
that K.T. and Blachowski continued to drink “quite a bit,” and K.T. used marijuana
“all the time.”
E.T., who was ten years old at the time of trial, testified that he lived
with his mom, Blachowski, and two siblings. He said that he saw his mom and dad
“drinking all the time,” and he often saw his dad hitting his mom; one time he saw
Blachowski put a knife to K.T.’s stomach.
He said he, his mom, and dad all slept in the same bed, and
Blachowski began abusing him when he was four or five years old. E.T. said that he
told his mom what Blachowski had done after the first time Blachowski touched his
penis, but Blachowski told K.T. “he thought it was just the sheets,” so she “didn’t do
anything.” E.T. testified that he knew Blachowski’s explanation was a lie because,
he said, “I felt it. I seen it. It happened to me. I know it wasn’t a dream.”
E.T. said that Blachowski sexually abused him repeatedly through the
years. He said the incidents occurred at night in bed while K.T. was sleeping, and
he was afraid to wake her up. He said that Blachowski touched his penis, and forced
him to touch Blachowski’s penis. E.T. testified further that Blachowski would put
his penis in E.T.’s mouth, and he was forced to put his penis in Blachowski’s mouth.
E.T. testified that Blachowski once made him insert his penis into his four-year-old
sister’s bottom; he said he specifically remembered the incident because the family
had just moved back from Arizona when it happened.
E.T. testified that two days before he told his grandmother what had
been going on, Blachowski forced him to watch pornography and then “the same
thing as always” happened; “he made me suck his penis. He sucked mine.”
E.T. testified that he loved Blachowski, and that Blachowski “tried to
be a good dad.” He said he was “confused” when the sexual abuse happened because
he “kind of knew it was bad. But my dad did it.”
P.T. testified that E.T. and his siblings spent time at her house almost
every weekend through the years. She said that when E.T. was nine years old, she
realized that he seemed especially angry and unhappy, so she told him that he could
talk to her if something was bothering him. P.T. said that E.T. then told her that
Blachowski had touched him “in his private area.” P.T. testified that E.T. told her
that K.T. was sleeping in the bed while it was happening, and P.T. “just took that to
mean she had been drinking.” P.T. testified further that E.T. told her that K.T. had
believed Blachowski’s explanation that it was “just the sheet” when he had told her
years ago what had happened, and that he asked her to tell K.T. what had been going
on.
P.T. testified that E.T. moved in with her shortly after Blachowski was
arrested, and initially seemed happy to live with her. P.T. said that a few weeks after
he moved in, however, two incidents occurred that caused him to be hospitalized
twice for psychiatric treatment. P.T. said that E.T. now takes medication for
depression and receives counseling.
Cleveland Police Detective Richard Durst testified that he
investigated the case. He said that he interviewed E.T., who disclosed sexual abuse
by Blachowski. He said that E.T. seemed “sad” during the interview, but gave
detailed disclosures about what had happened. Detective Durst testified that he also
interviewed K.T., and then, after consulting with the prosecutor, issued an arrest
warrant for Blachowski.
Detective Durst testified that he did not obtain any physical evidence
in the case, but explained that no DNA evidence was available due to E.T.’s delayed
disclosure. He said that he did not interview E.T.’s sister, so he was unable to
corroborate E.T.’s allegation about her, but he said that K.T. had confirmed that the
family had moved from a rear apartment to a front apartment, thus corroborating
E.T.’s statement to him that the incidents had happened in two apartments. On
cross-examination, Detective Durst admitted that he did not look at Blachowski’s
telephone, even though it could have corroborated E.T.’s allegation that Blachowski
made him watch pornography.
Blachowski testified in his own defense. He admitted that he cheated
on K.T. and was physically abusive toward her, and that he had been convicted of
domestic abuse. He said that E.T. “got it right” that E.T. slept in the bed with
Blachowski and K.T., that Blachowski beat K.T., and that Blachowski whipped E.T.
Blachowski denied, however, that he ever showed pornography to E.T. or did
anything of a sexual nature with him.
The state dismissed two counts of rape (Counts 3 and 11), and one
count of gross sexual imposition (Count 14). The jury subsequently found
Blachowski guilty of all remaining counts — four counts of rape, five counts of gross
sexual imposition, and four counts of endangering children. The court found him
guilty of the sexually violent predator specifications attached to the rape and gross
sexual imposition charges.
The court sentenced Blachowski to life in prison without the
possibility of parole on the rape counts; concurrent with five years to life on the gross
sexual imposition counts; eight years on Counts 7 and 15 (felony endangering
children); and six months with credit for time served on Counts 8 and 16
(misdemeanor endangering children). This appeal followed.
II. Law and Analysis
A. Improper Juror Communication
After E.T. testified, the court took a lunch recess. After the break, the
prosecutor notified the trial court of the following:
It came to our attention over the lunch hour that the defendant’s
stepmother who has been in the back of the courtroom through the
entire proceedings had made contact with the victim’s mother, K.T.,
and she had known that K.T. was subpoenaed in and kept separate as
witnesses cannot talk about the proceedings as they’re going on.
They were on the fourth floor of the Justice Center building in the green
elevator well and K.F. was giving K.T. a play by play of everything that
has been going on [in] the courtroom, talking about the testimony,
talking about pleas, talking about Mr. Blachowski’s looks when he said
he wouldn’t take the plea. They were talking very loudly. I could hear
everything loudly. I was in the red elevator well. My co-counsel, Deb
Brewer, was also in the red elevator well also watching as jurors on this
case were walking by.
I obviously cannot attest as to whether a juror heard anything but we
are concerned that a juror may have heard something and we’re also
concerned about the tainting of our witness. (Tr. 295-296.)
In his first assignment of error, Blachowski contends that the trial
court committed reversible error in not declaring a mistrial in light of the
prosecutor’s advisement. He further contends that the hearing about the alleged
improper juror contact was inadequate because, at a minimum, the trial court
should have interviewed each juror individually when it learned of the improper
communication. We disagree.
First, Blachowski did not ask for a mistrial in the trial court or object
to the court’s decision not to declare a mistrial. Likewise, he did not object to the
trial court’s handling of the hearing regarding the alleged improper juror
communication, nor did he ask the court to question each juror individually. It is
well-settled that failure to raise a claim of error at trial waives all but plain error on
appeal. State v. Watkins, 8th Dist. Cuyahoga No. 77051, 2000 Ohio App. LEXIS,
* 17 (Sept. 7, 2000).
Plain error is an obvious error or defect in the trial court proceeding
that affects a substantial right. State v. Gray, 8th Dist. Cuyahoga No. 92303, 2010-
Ohio-240, ¶ 17, citing State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978).
An alleged error is plain error only if the error is obvious and but for the error, the
outcome of the trial clearly would have been otherwise. State v. Yarbrough, 95 Ohio
St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 108. We take notice of plain error
with the “utmost caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice.” Long at paragraph three of the syllabus. The
burden of demonstrating plain error is on the party asserting the error. State v.
McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 84 (8th Dist.). Blachowski has not
demonstrated any error, plain or otherwise.
When a trial court learns of an improper communication with a juror,
it must hold a hearing to determine whether the communication biased the juror.
State v. Phillips, 74 Ohio St.3d 72, 88, 66 N.E.2d 643 (1995). It is the accused’s
burden to show that the improper communication biased the juror and that the
accused was prejudiced by the bias. State v. Keith, 79 Ohio St.3d 514, 527, 684
N.E.2d 47 (1997). Trial courts are granted broad discretion in determining whether
to declare a mistrial or replace an affected juror, and we review for an abuse of that
discretion. Phillips at 89; State v. Worwell, 8th Dist. Cuyahoga No. 80871, 2002-
Ohio-6637, ¶ 7.
Here, upon being informed of the potential juror communication, the
judge questioned K.F., who acknowledged that she knew that K.T. was a potential
witness at trial, but insisted that she “really didn’t think together” that talking with
her about the trial was a problem. The judge then brought in the jury and questioned
it as follows:
Welcome back, ladies and gentleman.
Before the state calls the next witness, every once in a while we’re going
to check in with you after a recess when you’ve been off the floor if
you’ve heard anything about the case, you know, anything in violation
of the admonitions that I give you when you’re leaving. So if you heard
anybody talking in the hallway, if you caught an elevator with people
talking trial strategy, anything like that, does anyone have anything to
report from the lunch hour?
When no juror responded that he or she had heard anything
improper, the judge indicated that the state could call its next witness.
Blachowski contends that this hearing was insufficient because, at the
very least, the judge should have questioned each juror individually regarding
whether he or she had heard anything during the break. He contends that the court’s
failure to do so was an abuse of discretion.
We find that the hearing was adequate, and that the trial court did not
abuse its discretion by not interviewing each juror individually. The scope of voir
dire used to investigate for allegations of improper communication with members
of the jury is within the trial court’s discretion. State v. Sanders, 92 Ohio St.3d 245,
252, 750 N.E.2d 90 (2001). Here, the judge directed her question to all the jurors,
and, when no one spoke up, she could reasonably assume that no juror was affected
by the alleged improper communication. Thus, the court did not abuse its discretion
by stopping its questioning at that point. Sanders at id. (no abuse of discretion in
not interrogating each juror individually where the court directed a question to all
jurors and no one responded). Furthermore, because the trial court determined that
no juror was affected by the alleged improper communication, the court did not
abuse its discretion in continuing on with the trial and not declaring a mistrial.
The first assignment of error is therefore overruled.
B. Opinion Testimony
During redirect examination of Detective Durst, the following
colloquy occurred:
Q. And just one follow-up question. He asked you all about your
interview techniques and your interrogation techniques. When you are
interviewing witnesses, what is your goal? What are you trying to
determine?
A. What am I trying to determine?
Q. Are you interrogating them? What is your purpose of interviewing
them?
A. My purpose is — I would like them to tell the truth.
(Tr. 363.)
In his second assignment of error, Blachowski contends that this
testimony, coupled with Detective Durst’s testimony that he issued an arrest warrant
for Blachowski after he interviewed E.T. and K.T., implicitly conveyed to the jury
that the detective thought E.T. was telling the truth, and was therefore reversible
error.
Initially, we note that Blachowski raised no objection to Detective
Durst’s testimony and therefore has waived all but plain error on appeal.
In State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989),
syllabus, the Ohio Supreme Court held that “an expert may not testify as to the
expert’s opinion of the veracity of the statements of a child declarant.” This is
because the trier of fact, and not the expert, has the burden of assessing the
credibility and veracity of witnesses. Id. at 128-129.
However, “only statements directly supporting the veracity of a child
witness are prohibited under Boston.” State v. Cashin, 10th Dist. Franklin No. 09A-
367, 2009-Ohio-6419, ¶ 20, citing State v. Rosas, 2d Dist. Montgomery No. 22424,
2009-Ohio-1404. As explained in Rosas:
The rules of evidence permit an expert to offer an opinion on an
ultimate issue, which the jury was empaneled to decide. Evid.R. 704
(“Testimony in the form of an opinion or inference otherwise
admissible is not objectionable solely because it embraces an ultimate
issue to be decided by the trier of fact.”) As [State v.] Stowers, [81 Ohio
St.3d 260, 690 N.E.2d 881 (1998)] taught, this includes a psychologist’s
expert opinion on whether a particular child was sexually abused.
Stowers at 261. What an expert may not do is offer a direct opinion on
whether a child is telling the truth. State v. Boston, 46 Ohio St.3d 108,
545 N.E.2d 1220 (1989), syllabus (an “expert may not testify as to the
expert’s opinion of the veracity of the statements of a child declarant”).
There is a distinction “between expert testimony that a child witness is
telling the truth,” on the one hand, and on the other hand, “evidence
which bolsters a child’s credibility insofar as it supports the
prosecution’s efforts to prove that a child has been abused.” Stowers
at 262. Expert testimony is admissible as to the latter. This is evidence
that provides “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.” Id. Such testimony “does not usurp the role of the jury, but
rather gives information to a jury which helps it make an educated
determination.” Id. at 263.
Rosas at ¶ 42.
Thus, in Rosas, the Second District held that the testimony of a child
psychologist was within permissible bounds where the psychologist testified about
the behavioral characteristics of sexually abused children, compared those
characteristics to the victim’s behavior, and concluded that she had been sexually
abused. Rosas at ¶ 43. The court found that the trial court did not abuse its
discretion in allowing the testimony because the psychologist never directly testified
that she believed what the victim had told her or that she thought the victim was a
credible witness. Id.
Likewise, in Cashin, the Tenth District found that the testimony of a
medical social worker who interviewed the victim did not violate Boston where the
social worker testified about the substance of statements made by the victim during
the interview and about the victim’s general demeanor, but did not offer any
testimony expressing an opinion about whether the victim’s statements were true.
Id. at ¶ 20. The court found that “[t]his type of indirect bolstering of a victim’s
credibility is not the same as the direct rendering of an opinion as to the victim’s
veracity that was involved in Boston.” Id.
Here, Detective Durst never directly testified that he thought E.T. was
telling the truth, nor even that he thought E.T. was sexually abused. Thus, his
testimony was not prohibited by Boston. Furthermore, even if we were to conclude
that his testimony somehow indirectly bolstered E.T.’s credibility, as discussed
above, only testimony directly commenting on the child’s veracity is improper;
testimony indirectly bolstering a child’s credibility is permissible. Accordingly, the
detective’s testimony was permissible, and we find no plain error in its admission.
The second assignment of error is overruled.
C. Manifest Weight of the Evidence
In his third assignment of error, Blachowski contends that his
convictions are against the manifest weight of the evidence.
A manifest weight challenge questions whether the state met its
burden of persuasion. State v. Freeman, 8th Dist. Cuyahoga No. 106374, 2018-
Ohio-3587, ¶ 18. To determine whether a conviction is against the manifest weight
of the evidence, the reviewing court must look at the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 388,
678 N.E.2d 541 (1997). An appellate court will reverse a conviction as against the
manifest weight of the evidence only in the most exceptional case in which the
evidence weighs heavily against the conviction. Id.Blachowski contends that his conviction was against the manifest
weight of the evidence because E.T.’s testimony was not credible beyond a
reasonable doubt. He points out that E.T. told the social worker that Blachowski
made him touch his mother, but admitted at trial that allegation was not true. He
contends that E.T.’s testimony that he told his mother about Blachowski three times
over six years was not credible because P.T. testified that E.T. told her of only one
instance when he told K.T. of the abuse. He further contends that E.T.’s testimony
that Blachowski “raped me every night” could not be true because E.T. spent many
nights at P.T.’s house. Blachowski also asserts that E.T.’s testimony seemed
“coached” because he used “technical and legal words that a ten-year-old would not
normally use,” such as “raped,” “abusive,” “sexually abused,” and “molested.” He
also contends that E.T. admitted that he learned from a news story that it was wrong
to sexually abuse a child, and that he talked about sex with his friend D., admissions
that Blachowski contends suggest that E.T. fabricated his testimony.
Blachowski asserts that in addition to E.T.’s “problematic” testimony,
(1) there was no physical evidence that linked him to the offenses; (2) Detective
Durst’s investigation was incomplete because he did not interview E.T.’s sister and
did not check Blachowski’s telephone for evidence of child pornography; (3) the
state did not provide an expert witness to attribute E.T.’s outbursts, psychiatric
hospitalizations, medications, and counselling to sexual abuse, and (4) P.T. was not
qualified to testify about a correlation between the abuse and E.T.’s behavior and
psychiatric breakdowns. Consequently, he contends that his convictions were
against the manifest weight of the evidence.
Despite Blachowski’s arguments, this is not the “exceptional case” in
which the evidence weighs heavily against the convictions. Determinations
regarding the credibility of witnesses and the weight given to the evidence are
primarily matters for the trier of fact to decide. State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967). The trier of fact is best able to view the witnesses and observe
their demeanor and voice inflections, and use these observations in weighing the
credibility of the proffered testimony. State v. Wilson, 113 Ohio St.3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264, ¶ 24. “The jury may take note of any inconsistencies
and resolve them accordingly, ‘believing all, part, or none of a witness’s testimony.’”
State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 33, quoting State v.
Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958.
Moreover, Ohio courts “have consistently held that a rape victim’s
testimony, if believed, is sufficient to support a rape conviction. ‘There is no
requirement that a rape victim’s testimony be corroborated as a condition precedent
to conviction.’” State v. Williams, 8th Dist. Cuyahoga No. 92714, 2010-Ohio-70, ¶
32, quoting State v. Lewis, 70 Ohio App.3d 624, 638, 591 N.E.2d 854 (4th Dist.
1990).
Here, the jury heard E.T.’s testimony regarding the abuse, and
further, his assertion that Blachowski’s denial that he knowingly touched E.T. was a
lie. The jury also heard Blachowski’s testimony denying that he sexually abused
E.T., but admitting that E.T. “got it right” about other disturbing things that
happened in the home. Further, the jury heard Detective Durst explain that there
was no physical evidence to support the allegations because E.T. delayed disclosing
the abuse for several days after it happened for the last time, but that the detective’s
interview with K.T. corroborated E.T.’s statement that the abuse happened in two
different apartments.
A careful review of the record shows that E.T.’s testimony, if believed,
supports Blachowski’s convictions for rape, gross sexual imposition, and child
endangering. The jury, as the trier of fact, was in the best position to believe or not
believe E.T.’s allegations and to resolve any inconsistencies in the evidence.
Likewise, the jury could believe or not believe Blachowski’s testimony denying the
abuse. The jury chose to believe E.T. and not Blachowski, and on this record, we
cannot conclude that the jury lost its way in convicting him.
After reviewing the entire record and considering the credibility of the
witnesses, we do not find that the trier of fact clearly lost its way and created a
manifest miscarriage of justice in finding Blachowski guilty of rape, gross sexual
imposition, and endangering children. Accordingly, the third assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR