State v. Simmons , 2024 Ohio 3188 ( 2024 )

[Cite as State v. Simmons, 2024-Ohio-3188.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113197
v. :
DEMETRIUS SIMMONS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 22, 2024
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-22-669542-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Alicia Paolucci, Assistant Prosecuting Attorney,
for appellee.
Joseph V. Pagano, for appellant.
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Demetrius Simmons (“Simmons”) appeals his
convictions and sentence. We affirm.
{¶2} On April 11, 2022, Simmons was charged in a 17-count indictment for
rape, gross sexual imposition, disseminating matter harmful to juveniles, felonious
assault, and endangering children. Simmons initially entered a guilty plea with an
agreement of 10 to 20 years’ imprisonment. Simmons filed a motion to appoint
new counsel and to withdraw his guilty plea, which the trial court granted. The
matter proceeded to a jury trial. The State requested, without any objection from
Simmons, to dismiss eight of the 17 counts of the indictment. Thus, Simmons was
charged with four counts of rape of a minor less than 10 years old, two counts of
gross sexual imposition, one count of disseminating matter harmful to juveniles
under 13 years old, one count of felonious assault, and one count of endangering
children that resulted in serious physical harm. Sexual violent predator
specifications were attached to the rape and gross sexual imposition counts that
were tried to the bench and not to the jury.
{¶3} After the State rested its case, it dismissed two of the rape counts.
Simmons moved for acquittal on all remaining counts. The trial court granted the
motion in part and dismissed the felonious assault count, and the specification
attached to the endangering children count. The trial court denied the motion to
dismiss all remaining counts. Simmons did not present a defense or call any
witnesses to testify. The jury found Simmons guilty on all the remaining counts.
The trial court held a hearing on the sexual violent predator specifications and
found the evidence sufficient to support the specifications. The trial court
sentenced Simmons to consecutive life sentences without parole, and Simmons
was designated a Tier III sex offender.
I. Facts and Procedural History
{¶4} At trial, C.C., the eight-year-old victim, testified that Simmons did
some “bad stuff” to her meaning some “inappropriate stuff,” from October 2019 to
March 2021, when she was four years old until six years old. C.C. stated that the
inappropriate stuff was “things about your body parts that you’re not supposed to
use in different ways.” Tr. 418. C.C. testified that Simmons touched her buttocks.
When asked if Simmons touched her in different areas, C.C. responded that she
did not want to say, but rather circle the parts on a picture. C.C. circled the vaginal
area of the picture and verified that she was referring to the vagina. Tr. 420-421.
She also circled and verified the breast area. C.C. testified that people are not
allowed to touch those areas of her body, but that only Simmons touched her in
those areas. Tr. 422. C.C. also testified that Simmons was not supposed to touch
her. C.C. stated that Simmons touched her vagina and buttocks at night with his
penis. C.C. stated that she told her mother, and she spoke to a social worker about
the touching. She also stated that “it hurt” when Simmons touched those areas
with his penis. Tr. 430.
{¶5} C.C. further testified that she saw Simmons’s penis when he would put
lotion on it and then put it in her vagina and buttocks area. C.C. stated that she
felt his penis in her body. Simmons would state “take it” at the time of penetration.
C.C. testified that this happened at night when her mother was at work in a
bedroom, living room, and sometimes on the living room floor. Tr. 432. C.C. also
testified that it would happen when her mother was home asleep. Those times,
Simmons would take her to the living room. C.C. stated that this happened lots of
times, almost every day, and sometimes Simmons would also use his hands to
touch her. C.C. described “white pee” on Simmons’s penis and stated that
sometimes it would go on her face because he would “slap his private” on her face.
Tr. 436. Simmons told C.C. that they were just playing a game.
{¶6} C.C. further testified that Simmons would take her clothes off or make
her take her clothes off. Simmons would also play inappropriate stuff on his phone
where C.C. would hear weird sexual noises like moaning. She testified that she saw
people doing sexual things on his phone. Tr. 440. C.C. also described Simmons
standing over her, putting his crotch on her face and then “white pee” would come
out on her face. Simmons would wipe C.C.’s face off and let her play a game.
Tr. 441. C.C. also stated that when Simmons was doing sexual stuff to her, it would
hurt her. Tr. 442.
{¶7} On cross-examination, C.C. testified that Simmons never threatened
her with a baseball bat, knife, or any other object. She also testified that Simmons
never told her that he would kill her if she told anyone. On redirect examination,
C.C. testified that her mother did not tell her to state these things to the court, but
to tell what happened.
{¶8} Next, C.C.’s mother, T.G. testified that Child Protective Services
(“CPS”) came to her house in March 2022. Tr. 463. T.G. was not home, but she
called to see why they came and was told that C.C. made allegations of sexual abuse
against Simmons. T.G. asked C.C. about the allegations, and C.C. confirmed them.
T.G. testified that she recalled taking C.C. to the doctor during 2018 to 2021
because C.C. had vaginal discharge. The doctor prescribed C.C. an antibiotic, and
the discharged was cleared. T.G. also testified that she contracted gonorrhea and
chlamydia from Simmons during that time. Tr. 467-468. Simmons was also
treated for those infections during that time.
{¶9} On cross-examination, T.G. testified that she told C.C. to come to court
and tell the truth. She also stated that she told C.C. they would celebrate when
Simmons went to jail. T.G. stated that her intention was for Simmons to go to jail
for what he did wrong.
{¶10} Next, C.C.’s pediatrician, Dr. Charles Griffin (“Dr. Griffin”), testified
that he saw C.C. for a visit and observed redness in her vagina. He prescribed her
Amoxicillin and did not do an internal examination. He also testified that he was
unaware of the allegations of sexual abuse, and if was told, he would have referred
C.C. to a gynecologist and an abuse unit. He also testified that C.C.’s vaginitis could
be the result of not wiping properly or sexual abuse.
[Cite as State v. Simmons, 2024-Ohio-3188.]
{¶11} LaTonya Thomas-Barker (“Thomas-Barker”), a former social worker
for the Cuyahoga County Division of Children and Family Services (“CCDCFS”)
testified that she was an investigator for short-term services for sex abuse and was
assigned to investigate C.C.’s allegations against Simmons. Thomas-Barker
testified that C.C. was talking to a friend on the phone and asked the friend to bring
a pregnancy test to school. The friend’s mother listened to the phone conversation
and called the abuse hotline to report the conversation. Thomas-Barker claimed
that she went to C.C.’s home unannounced and left her card. T.G. called her, and
Thomas-Barker explained why she came to the home. Initially, T.G. denied the
sexual abuse allegations but stated that she would speak with C.C. when she arrived
home. T.G. called Thomas-Barker back and told her that C.C. confirmed the sexual
abuse allegations.
{¶12} Thomas-Barker instructed T.G. to file a police report and she met T.G.
the next day at the police department to assist her in filing the report. Thomas-
Barker interviewed C.C., and C.C. told her about the sexual abuse. C.C. also told
Thomas-Barker that Simmons put a knife to her neck. Thomas-Barker offered
counseling services for C.C. and continued the investigation. At the conclusion,
the police took over the investigation.
{¶13} On cross-examination, Thomas-Barker testified that C.C. told her that
Simmons pulled out a pocketknife and cut her leg. Tr. 581. She also stated that
C.C. told her Simmons chased her with a knife and threatened her. Tr. 582.
Thomas-Barker further testified that C.C. stated that Simmons chased her with
baseball bats and hit her with them. C.C. also told Thomas-Barker that Simmons
stated he would kill C.C. and put a knife to her face. Id.{¶14} Michael Bokmiller (“Bokmiller”), the former supervisor of the sex
abuse department at CCDCFS, testified that he supervised Thomas-Barker while
she was assigned to C.C.’s case. Bokmiller testified that there are three dispositions
the State gives CCDCFS workers to choose from concerning sexual abuse:
unsubstantiated, indicated, and substantiated. Tr. 621. Bokmiller explained that
substantiated indicated corroboration that the child was abused or neglected as
alleged. Tr. 622. Bokmiller further testified that C.C. reported she was sexually
abused by Simmons. Tr. 628. Bokmiller also testified that the agency ruled the
allegation against Simmons as substantiated. Tr. 632, 633.
{¶15} At the conclusion of the testimony of all witnesses, the State dismissed
two of the four counts of rape. Simmons filed a Crim.R. 29 motion to dismiss all
counts and specifications. Tr. 646. The trial court reviewed the evidence and
stated: “It will be the finding of the Court that the defendant’s Rule 29 as to Count
8, felonious assault, is granted. As to Count 9, the furthermore clause, the violation
resulted in serious physical harm, is granted.” Tr. 655. Later, the trial court stated
that “[t]he Court finds that there is sufficient evidence on the remaining counts to
proceed to the jury.” Tr. 659. “The defendant’s renewed Rule 29 motion is denied.”
Id. Simmons did not present a defense or call any witnesses to testify.
{¶16} After closing arguments, the jury found Simmons guilty of all
remaining charges. The next day, the trial court held a hearing on the matter of
the sexually violent predator specifications that were attached to the rape and gross
sexual imposition counts. At the conclusion of the hearing, the trial court stated:
So after careful review of the statute and all of the information available
throughout the course of the trial, the Court believes that the defendant
is likely to engage in the future in one or more sexually violent offenses
looking at the factors in Revised Code Section (H)(2)(c) and (f), along
with all of the available information throughout the course of this trial.
Tr. 757.
{¶17} The trial court considered all of the relevant sentencing guidelines
provided in R.C. 2929.11, 2929.12, 2929.13, and 2929.19. Tr. 773. The trial court
sentenced Simmons to two consecutive life sentences without parole for the rape
counts, two years to life for the gross sexual imposition counts, and 12 months’
imprisonment for the disseminating matter harmful to juveniles. All sentences
were ran consecutively. Simmons filed this appeal assigning five errors for our
review:
1. The trial court erred by failing to qualify C.C. as a competent
witness and appellant was denied effective assistance where his
attorney did not object in violation of his constitutional rights
guaranteed in the Sixth and Fourteenth Amendments;
2. The trial court erred when it denied appellant’s motion for
acquittal under Crim.R. 29 because the state failed to present
sufficient evidence to establish beyond a reasonable doubt the
elements necessary to support the convictions;
3. Appellant’s convictions are against the manifest weight of the
evidence;
4. Appellant was denied due process and a fair trial where the trial
court permitted the social worker to testify, over appellant’s
objection, that C.C.’s allegations were “substantiated” and that
appellant was identified as the perpetrator; and
5. The record is insufficient to support the court’s findings
regarding the sexual violent predator specifications.
II. Ineffective Assistance of Counsel
{¶18} “In order to establish a claim of ineffective assistance of appellate
counsel, the applicant must demonstrate that counsel’s performance was deficient,
and that the deficient performance prejudiced the defense.” State v. Hubbard,
2024-Ohio-2161, ¶ 13 (8th Dist.), citing Strickland v. Washington, 466 U.S. 668(1984); State v. Bradley, 42 Ohio St.3d 136 (1989); and State v. Reed, 1996-Ohio-
21.
{¶19} In Strickland, the United States Supreme Court ruled that judicial
scrutiny of an attorney’s work must be highly deferential. The Court further
discussed that a defendant could be tempted to second-guess his lawyer after a
conviction. Then it could be easy for an appellate court, examining an unsuccessful
defense in hindsight, to render a conclusion that a particular act or omission was
deficient. Therefore, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” Strickland at 689.
{¶20} Even if a defendant establishes that an error by his trial attorney was
professionally unreasonable under all the circumstances of the case, the defendant
must further establish prejudice: “but for the unreasonable error there is a
reasonable probability that the results of the proceeding would have been
different.” Hubbard, at ¶ 16. Thus, “a reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Therefore, “a court need
not determine whether counsel’s performance was deficient before examining
prejudice suffered by the defendant as a result of alleged deficiencies.” Id.{¶21} In Simmons’s first assignment of error, he argues that the trial court
failed to qualify C.C. as a competent witness and that he was denied effective
assistance of counsel because his attorney did not object to the trial court’s error.
“Evidence Rule 601 states that ‘[e]very person is competent to be a witness except
as otherwise provided in these rules.’” State v. Azali, 2023-Ohio-4643, ¶ 11 (8th
Dist.). “Although prior versions of the rule contained a provision expressly dealing
with children under ten years old, the current rule does not.” Id., citing State v.
Haywood, 2023-Ohio-1121, ¶ 21 (7th Dist.).
{¶22} R.C. 2317.01 states: “All persons are competent witnesses except
those of unsound mind and children under ten years of age who appear incapable
of receiving just impressions of the facts and transactions respecting which they
are examined, or of relating them truly.” Simmons cites State v. Maxwell, 2014-
Ohio-1019, ¶ 100, and argues that “[a] trial court must conduct a voir dire
examination of a child under ten years of age to determine the child’s competence
to testify.” Id. However, Maxwell relied on an earlier version of Evid.R. 601(A),
which had the presumption that children under the age of ten were incompetent
to testify and ordered the trial court to conduct an examination to determine if they
were competent. The new rule assumes competency of all witnesses unless they
appear incapable of receiving just impressions of the facts and transactions
respecting which they are examined.
{¶23} C.C. is presumed competent unless she demonstrates the inability to
receive accurate impressions of fact or to observe acts about which she will testify;
the inability to recollect those impressions or observations; the inability to
communicate what she observed; her understanding of truth and falsity; and her
appreciation of her responsibility to be truthful. See Azali at ¶ 13. From the
record, C.C. was able to determine right and wrong, understood a lie from the
truth, and was able to explain that she was told to tell the truth and everything that
happened to her. C.C. demonstrated clear recollections of past incidents that she
testified happened to her. C.C. clearly identified Simmons in court as the man who
sexually abused her. Tr. 413-414. There is nothing in the record that indicates that
C.C. was unable to receive just impressions of the facts. As such, the trial court did
not err in its decision not to conduct a hearing to determine whether C.C. was
competent to testify. Thus, Simmons was not denied effective assistance of counsel
where his trial attorney did not object to the trial court’s decision.
{¶24} Simmons’s first assignment of error is overruled.
III. Crim.R. 29 Motion for Acquittal and Sufficiency of the Evidence
A. Standard of Review
{¶25} “A Crim.R. 29(A) motion for acquittal tests the sufficiency of the
evidence.” State v. Yavorcik, 2018-Ohio-1824, ¶ 62 (8th Dist.), citing State v. Hill,
2013-Ohio-578, ¶ 13 (8th Dist.). “We consider whether the state has met its burden
of production at trial.” Id., citing State v. Hunter, 2006-Ohio-20, ¶ 41 (8th Dist.).
Crim.R. 29 mandates that the trial court issue a judgment of acquittal
where the state’s evidence is insufficient to sustain a conviction for an
offense. Accordingly, an appellate court reviews a trial court’s denial of
a defendant’s motion for acquittal using the same standard it applies
when reviewing a sufficiency-of-the-evidence claim.
State v. Fisher, 2018-Ohio-2189, ¶ 9 (8th Dist.), quoting State v. Hoskin-Hudson,
2016-Ohio-5410, ¶ 7 (8th Dist.).
{¶26} Accordingly,
[w]ith respect to sufficiency of the evidence, “‘sufficiency’ is a term of
art meaning that legal standard which is applied to determine whether
the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.” Black’s Law Dictionary
1433 (6 Ed.1990). See also Crim.R. 29(A) (motion for judgment of
acquittal can be granted by the trial court if the evidence is insufficient
to sustain a conviction). In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is a
question of law. State v. Robinson, 162 Ohio St. 486 (1955). In
addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31, 45
(1982), citing Jackson v. Virginia, 443 U.S. 307 (1979).
State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
B. Law and Analysis
{¶27} In Simmons’s second and fifth assignments of error, he argues that
the trial court erred when it denied his Crim.R. 29 motion for acquittal because
there was insufficient evidence to establish beyond a reasonable doubt the
elements necessary to support the convictions. Crim.R. 29(A) states, in part:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a
conviction of such offense or offenses.
{¶28} Simmons was found guilty of two counts of rape, in violation of R.C.
2907.02(A)(1)(b), which states, in part:
No person shall engage in sexual conduct with another who is not the
spouse of the offender or who is the spouse of the offender but is living
separate and apart from the offender, when [t]he other person is less
than thirteen years of age, whether or not the offender knows the age
of the other person.
{¶29} Simmons argues that C.C. never testified that appellant penetrated
her vaginally or anally with anything. However, we find that Simmons is incorrect
in his assertions. When asked if she felt his penis in her body, C.C. replied, “yeah.”
Tr. 431. C.C. also testified that her vaginal and butt area hurt when it was in her
body. Tr. 430. Again, C.C. was asked if when she stated, “what happened” if she
meant that Simmons penis was going in the vaginal and buttocks areas she circled
on the paper, C.C. replied, “Yeah.” Tr. 438. C.C. also testified that Simmons would
say, “Take it” when it penetrated her. Tr. 432.
{¶30} “Ohio courts have consistently held that a 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. Patterson, 2017-Ohio-1444, ¶ 23 (8th Dist.), quoting State v. Williams,
2010-Ohio-70, ¶ 32 (8th Dist.). We find the essential elements of R.C.
2907.02(A)(1)(b) were proven beyond a reasonable doubt.
{¶31} Simmons was also found guilty of two counts gross sexual imposition,
in violation of R.C. 2907.05(A)(4), which states, in part:
No person shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender; or cause two or more other persons
to have sexual contact when [t]he other person, or one of the other
persons, is less than thirteen years of age, whether or not the offender
knows the age of that person.
{¶32} Simmons argues that C.C. did not testify that he touched her vagina
or breasts. Again, we find Simmons is incorrect in his assertions. C.C. testified
that the parts she circled in blue are the parts that Simmons touched with his penis.
Tr. 430. The picture reflected that C.C. circled the vaginal and breasts areas when
asked what areas people are not allowed to touch. Tr. 421. C.C. then testified that
Simmons was the only person who touched those areas of her body. Tr. 422.
{¶33} Viewing the evidence in a light most favorable to the prosecution, we
find the State presented sufficient evidence to support the gross sexual imposition
offenses. Given the type, nature, and circumstances of Simmons’s contact with
C.C., we find a reasonable juror could infer that Simmons did touch C.C., then less
than 13 years of age, with his penis for the purpose of sexual arousal or
gratification. See State v. Sims, 2024-Ohio-250, ¶ 27 (8th Dist.). We find the
essential elements of R.C. 2907.05(A)(4) were proven beyond a reasonable doubt.
{¶34} Simmons was found guilty of one count of disseminating matter
harmful to juveniles, in violation of R.C. 2907.31(A)(1), which states, in part:
No person, with knowledge of its character or content, shall recklessly
[d]irectly sell, deliver, furnish, disseminate, provide, exhibit, rent, or
present to a juvenile, a group of juveniles, a law enforcement officer
posing as a juvenile, or a group of law enforcement officers posing as
juveniles any material or performance that is obscene or harmful to
juveniles.
{¶35} Simmons argues that C.C.’s testimony that Simmons shows her
things on his phone that were inappropriate with weird sexual noises and moaning
was insufficient to establish that material was obscene. Obscene is defined in R.C.
2907.01(F) as:
When considered as a whole, and judged with reference to ordinary
adults or, if it is designed for sexual deviates or other specially
susceptible group, judged with reference to that group, any material or
performance is “obscene” if any of the following apply:
(1) Its dominant appeal is to prurient interest;
(2) Its dominant tendency is to arouse lust by displaying or
depicting sexual activity, masturbation, sexual excitement, or
nudity in a way that tends to represent human beings as mere
objects of sexual appetite;
(3) Its dominant tendency is to arouse lust by displaying or
depicting bestiality or extreme or bizarre violence, cruelty, or
brutality;
(4) Its dominant tendency is to appeal to scatological interest
by displaying or depicting human bodily functions of
elimination in a way that inspires disgust or revulsion in
persons with ordinary sensibilities, without serving any
genuine scientific, educational, sociological, moral, or artistic
purpose;
(5) It contains a series of displays or descriptions of sexual
activity, masturbation, sexual excitement, nudity, bestiality,
extreme or bizarre violence, cruelty, or brutality, or human
bodily functions of elimination, the cumulative effect of which
is a dominant tendency to appeal to prurient or scatological
interest, when the appeal to such an interest is primarily for its
own sake or for commercial exploitation, rather than primarily
for a genuine scientific, educational, sociological, moral, or
artistic purpose.
{¶36} C.C. testified that Simmons showed her inappropriate stuff on his
phone where there would be weird sexual noises like moaning and people doing
sexual things. C.C. testified that this occurred while she was laying at the edge of
the bed and Simmons was putting his crotch on her face with “white pee” coming
out of his penis. Tr. 421.
{¶37} Viewing all of the evidence in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that the State had met the elements of the crime of disseminating
matter harmful to a juvenile as previously set forth because of C.C. testimony. See
State v. Ross, 2012-Ohio-6263, ¶ 59 (5th Dist.). We find the essential elements of
R.C. 2907.01(F) were proven beyond a reasonable doubt.
{¶38} Simmons was found guilty of one count of endangering children, in
violation of R.C. 2919.22(B)(1), which states, in part: “No person shall do any of
the following to a child under eighteen years of age or a child with a mental or
physical disability under twenty-one years of age: (1) Abuse the child.”
{¶39} Simmons argues that there was no evidence to support a conviction
of endangering children because C.C. denied that he injured her with a knife or a
bat. However, Simmons was not charged with endangering children because of
C.C.’s accusations of him injuring her with a knife or a bat, but rather because he
sexually abused her. “This court has previously upheld endangering children where
sexual conduct formed the basis of the conviction.” State v. Palmer, 2022-Ohio-
2955, ¶ 41 (8th Dist.). See, e.g., State v. A.M., 2022-Ohio-2044 (8th Dist.); State
v. D.S., 2021-Ohio-1725 (8th Dist.); State v. Butts, 2020-Ohio-1498 (8th Dist.);
State v. Stephens, 2016-Ohio-7492 (8th Dist.); State v. Jay, 2009-Ohio-4364, ¶ 17
(8th Dist.).
{¶40} The record reveals that Simmons raped C.C. vaginally and anally
numerous times, slapped her face with his penis, ejaculated on her face, touched
her breasts, buttocks, and vagina, and showed her pornography while he
masturbated. We find that these actions are sufficient for a finding of guilt for
endangering a child, and the essential elements of R.C. 2919.22(B)(1) were proven
beyond a reasonable doubt.
{¶41} In Simmons’s fifth assignment of error, he argues that the record is
insufficient to support the trial court’s findings regarding the sexually violent
predator specifications. The trial court found that R.C. 2971.01(H)(2)(c) and (f)
applied to the crimes for which Simmons was convicted.
For purposes of division (H)(1) of this section, any of the following
factors may be considered as evidence tending to indicate that there is
a likelihood that the person will engage in the future in one or more
sexually violent offenses:
(c) Available information or evidence suggests that the person
chronically commits offenses with a sexual motivation; and
...
(f) Any other relevant evidence.
R.C. 2971.01(H)(2)(c) and (f).
{¶42} Simmons argues that there is no evidence that he chronically
commits offenses with a sexual motivation because he does not have a documented
history of sexually deviant behavior. The record reveals that over a course of
almost two years, Simmons raped and abused C.C. These acts were frequent
enough that C.C. requested a pregnancy test to be brought to school from a fellow
classmate. The length of the sexual abuse is sufficient to demonstrate that
Simmons chronically commits offenses with a sexual motivation. See State v.
Kelley, 2024-Ohio-157, ¶ 83 (8th Dist.). We find the essential elements of R.C.
2971.01(H)(2)(c) and (f) were proven beyond a reasonable doubt.
{¶43} Therefore, Simmons’s second and fifth assignments of error is
overruled.
IV. Manifest Weight of the Evidence
A. Standard of Review
{¶44} A manifest weight challenge to a conviction asserts that the State has
not met its burden of persuasion in obtaining the conviction. State v. Thompkins,
78 Ohio St.3d 380, 390 (1997). A manifest weight challenge raises factual issues,
and we review the challenge as follows:
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 conviction must be reversed, and a new trial ordered. 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. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983); State
v. Townsend, 2019-Ohio-544, ¶ 20 (8th Dist.).
{¶45} Inconsistencies or contradictions in a witness’s testimony do not
entitle a defendant to a reversal of a trial. State v. Solomon, 2021-Ohio-940, ¶ 62
(8th Dist.), citing State v. Nitsche, 2016-Ohio-3170, ¶ 45 (8th Dist.). Further, in
State v. R.I.H., 2019-Ohio-2189, ¶ 38, 41 (10th Dist.), the Tenth District noted that
portions of a victim’s trial testimony that were inconsistent with prior statements
to police did not amount to a finding of a manifest miscarriage of justice where “the
jury was aware of such inconsistency and was able to consider this when weighing
the credibility of the testimony.”
B. Law and Analysis
{¶46} In Simmons’s third assignment of error, he argues that his
convictions are against the manifest weight of the evidence because C.C.’s
testimony is not credible because it was never determined that she was competent
witness and she denied part of her statements to the social worker regarding
Simmons’s using a knife and a baseball bat.
{¶47} We previously addressed the issue of C.C.’s competency and have
determined that the record reflects she was a competent witness. In terms of her
credibility regarding her inconsistent statements, the jury was aware of any
inconsistencies between C.C.’s testimony and her prior statements and had the
ability to weigh her credibility. See State v. Rentas, 2024-Ohio-732, ¶ 19 (8th
Dist.).
{¶48} Simmons also argues that the convictions are against the manifest
weight of the evidence because C.C. learned sexual terminology from various
relatives rather than from the appellant. However, Simmons was not convicted
because he taught C.C. sexual terminology. C.C. was able to describe Simmons
sexual abuse towards her including vaginal and anal penetration with his penis,
ejaculation from Simmons’s penis, forcing her to watch sexually explicit material,
hitting C.C. in the face with his penis, and touching C.C.’s breasts, vagina, and
buttocks.
{¶49} “In a weight of the evidence challenge the trier of fact is ‘best able to
view the witnesses and observe their demeanor, gestures, and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.’”
State v. Stratford, 2022-Ohio-1497, ¶ 24 (8th Dist.), citing State v. McCall, 2017-
Ohio-296, ¶ 14 (8th Dist.), quoting State v. Wilson, 2007-Ohio-2202, ¶ 24. The
Simmons’ jury was in the best position to view C.C. and observe her demeanor,
testimony, gestures, and voice inflections. The jury may believe or disbelieve C.C.’s
testimony or accept part of what she says and reject the rest. Id. at ¶ 22. We cannot
substitute our own judgment for that of the jury. Id.
{¶50} Therefore, Simmons’s third assignment of error is overruled.
V. Social Worker Testimony
{¶51} In Simmons’s fourth assignment of error, he argues that he was
denied due process and a fair trial when the trial court permitted Bokmiller to
testify, over his objection, that C.C.’s allegations were substantiated, and that
Simmons was identified as the perpetrator. “A social worker may testify
concerning the children service agency’s disposition of an allegation of abuse.”
State v. Williams, 2023-Ohio-1748, ¶ 16 (8th Dist.). “‘A social worker’s
interdepartmental determination of an allegation of abuse — such as:
unsubstantiated, substantiated, or indicated — is acceptable, provided the social
worker does not testify as to the truthfulness or credibility of the alleged victim.’”
Id., qu0ting State v. Clark, 2015-Ohio-3027, ¶ 42 (8th Dist.). “Expert testimony
on the ultimate issue of whether sexual abuse has occurred in a particular case is
helpful to jurors and is therefore admissible.” Id., citing State v. Stowers, 81 Ohio
St.3d 260, 261 (1998).
{¶52} Bokmiller did not testify as to the veracity of C.C.’s accusations
against Simmons. See State v. Frost, 2019-Ohio-93, ¶ 37 (8th Dist.). Thus,
Bokmiller’s statements did not deprive Simmons of due process and a fair trial.
{¶53} Therefore, Simmons’s fourth assignment of error is overruled.
{¶54} 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 out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. 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.
________________________________
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, P.J., and
SEAN C. GALLAGHER, J., CONCUR