State v. Moore , 2019 Ohio 1671 ( 2019 )

[Cite as State v. Moore, 2019-Ohio-1671.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-14
:
v. : Trial Court Case No. 2017-CR-410
:
ANTHONY R. MOORE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 3rd day of May, 2019.
...........
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Greene County Prosecutor’s Office,
Appellate Division, 55 Greene Street, 1st Floor, Xenia, OH 45385
Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 125 W. Main Street, Suite 201, Fairborn, Ohio
45324
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} Anthony R. Moore appeals from his conviction and sentence on five counts
of gross sexual imposition involving a child under age 13, five counts of rape of a child
under age 13, and three counts of rape by force.
{¶ 2} Moore advances eleven assignments of error. The first four involve the trial
court’s admitting into evidence statements made by the minor victim, A.D., to various
people. Moore contends the child’s statements were inadmissible hearsay. The fifth
assignment of error challenges the trial court’s decision to allow leading questioning of
A.D. about anal intercourse allegations. The sixth assignment of error alleges cumulative
error based on the foregoing evidentiary issues. The seventh and eighth assignments of
error challenge the legal sufficiency and manifest weight of the evidence to sustain
Moore’s convictions. The ninth assignment of error alleges that the record does not
support the trial court’s imposition of consecutive sentences. The tenth assignment of
error challenges the trial court’s imposition of statutory maximum sentences for gross
sexual imposition and rape. Finally, the eleventh assignment of error alleges cruel and
unusual punishment based on the maximum sentences imposed.
{¶ 3} At trial, A.D. testified that Moore had been her mother’s boyfriend and that
he had moved into her mother’s house when A.D. was 10 years old. (Tr. at 44.) From age
10 to 12, she lived with Moore, her mother, and her brother in a house on Lowell Road in
Greene County. They then moved to a house on Atkinson Drive in Greene County, where
they resided until Moore’s arrest in the summer of 2017. (Id. at 36-37.) A.D. considered
Moore to be her stepfather. (Id. at 44.)
{¶ 4} On June 15, 2017, 13-year-old A.D. spent the day at King’s Island
amusement park. Upon returning to the house on Atkinson, she took a shower, got
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dressed, and fell asleep in her mother’s bed while watching Netflix. (Id. at 46, 48.) At that
time, A.D.’s mother and Moore were sleeping on a couch in the living room where there
was air conditioning. (Id. at 47-48.) A.D. testified that Moore came into the bedroom three
times that night and touched her “butt” with his hand underneath her clothes. (Id. at 49.)
After the third time, he pulled down her pants, got on top of her, and put his penis in her
vagina. (Id. at 50-51.) A.D. testified that she did not want to have sex with Moore and that
her vagina hurt. (Id. at 51-52.) After Moore ejaculated and left the room, A.D. pulled up
her pants and tried to go back to sleep. (Id. at 53.)
{¶ 5} The following morning, A.D.’s father picked her up to go out for breakfast. (Id.
at 53.) A.D. then went swimming at her uncle’s house before going to a church social
activity. (Id. at 54-55.) She ended the day at her father’s girlfriend’s house, where she
spent the night. (Id. at 56.) While there, A.D. told her father’s girlfriend what Moore had
done the previous night. (Id. at 61.) A.D.’s father also was present, and his girlfriend told
him what had happened. (Id. at 62.) Shortly thereafter, A.D.’s mother called A.D. and
asked whether “it was true.” (Id. at 64.) A.D. responded affirmatively. (Id.) She then
returned to the Atkinson house and told a police officer what Moore had done the previous
night. (Id.) A.D. also went to the hospital to be examined by a nurse. (Id. at 65.) As part
of the examination, the nurse collected her underwear, which was the same pair she had
been wearing the night before. (Id. at 66.) On two subsequent occasions, A.D. told a
doctor at Dayton Children’s Hospital and a representative of Michael’s House, a child-
advocacy center, what Moore had done to her. (Id. at 67.)
{¶ 6} A.D. testified at trial that the incident on June 15, 2017 was not the only time
Moore had abused her. She stated that the abuse began when she was 11 years old and
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living on Lowell Road. (Id. at 67-68.) According to A.D., it happened “[a]lmost every day”
at the house on Lowell. (Id. at 68.) A.D. estimated that after she moved to Atkinson Drive
the abuse occurred “[e]very couple nights.” (Id.) With regard to what occurred at the
Lowell residence, A.D. testified that she was under the age of 13 the entire time and that
the abuse occurred in different places in the house. (Id. at 68-69.) As for specific incidents,
A.D. testified that on one occasion Moore placed his erect penis in her mouth two times
while she was on a living room couch. During that incident, he also placed his hand
underneath her clothes and touched the outside of her vagina. (Id. at 69-75.) A.D. recalled
another time when she was sleeping in her mother’s bed with her mother and Moore. On
that occasion, Moore reached underneath her clothes and rubbed the outside of her
vagina with his hand. (Id. at 78-79.) On yet another occasion, A.D. and Moore were on
her mother’s bed while her mother was in the shower. According to A.D., Moore pulled
down her pants, placed his erect penis in her vagina, and ejaculated. (Id. at 80-83.) A.D.
then testified about a time at the Atkinson house prior to her 13th birthday when she was
sleeping on a couch. A.D. recalled that Moore touched her “butt” underneath her clothes
and also put his penis in her vagina. (Id. at 87-90.) A.D. testified that on multiple occasions
Moore put his erect penis in her “butt” and that it hurt. (Id. at 97-100.) A.D. also recalled
an incident at the Atkinson house before she was 13 when Moore inserted his penis in
her vagina and then pulled it out and held it so he would not ejaculate inside of her. (Id.
at 103-104.)
{¶ 7} The next witness at trial was L.M., who was A.D.’s father’s girlfriend at the
time of A.D.’s disclosure of sexual abuse. L.M. testified that A.D. and another girl came
to her house on June 16, 2017 to spend the night. (Tr. at 219.) While there, A.D. started
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braiding L.M.’s hair. As she did so, A.D. mentioned that she did not want to stay with
Moore at her mother’s house anymore. (Id. at 222.) A.D.’s father then asked, “[T]hat boy
hasn’t touched you, has he?” A.D. did not directly answer but repeated that she “never
wanted to be there anymore.” (Id. at 230.) A.D. then went into the kitchen and asked L.M.
to come in to talk. A.D. proceeded to disclose that when she woke up the previous night
her pants were down. (Id. at 237.) A.D. indicated that her vagina felt “different” and she
identified Moore as having been involved. (Id. at 238.) L.M. and A.D. then got in a car and
headed toward the child’s mother’s house. Before they arrived, A.D. admitted that she
and Moore had engaged in sexual intercourse, that it was not the first time, and that it first
happened when she was 10 years old. (Id. at 256.)
{¶ 8} The next witnesses were forensic scientists Sara DeVine and Katharine
Dailey from the DNA section of the Ohio Bureau of Criminal Investigations. DeVine
testified about bodily fluid on a pair of underwear collected from A.D. during a sexual-
assault examination at the hospital. (Id. at 282.) She confirmed the presence of semen in
the crotch of the underwear. (Id. at 312.) Dailey then performed DNA testing on the semen
and found a mixture of DNA profiles. A.D. was identified as one of the contributors. (Id. at
338.) After obtaining and testing a DNA sample from Moore, Dailey identified him as the
other contributor. (Id. at 346.) She opined that the chance of the DNA sample being
consistent with that of another person was less than one in one trillion. (Id. at 347.)
{¶ 9} The next person to testify was A.D.’s mother, M.D. She testified that she was
in a relationship with Moore in June 2017. (Id. at 357.) She had lived with him in a house
on Lowell Road from June 2014 until September 2016. (Id. at 360.) They had lived on
Atkinson Drive from September 2016 until June 2017. (Id.) M.D. testified that A.D. was
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younger than 13 years old the entire time they lived on Lowell Road. (Id. at 361.) A.D.
turned 13 years old in October 2016 shortly after they moved to Atkinson Drive. (Id. at
361-362.) M.D. testified that she was a sound sleeper who sometimes took sleeping
medication. She also testified that A.D. sometimes slept in the same bed with her and
Moore when they lived on Lowell Road and on Atkinson Drive. M.D. sometimes slept with
Moore on a living-room couch and allowed A.D. to sleep alone in their bedroom. (Id. at
362-365.)
{¶ 10} The night before A.D.’s disclosure, M.D. and Moore had slept on the couch
and A.D. had slept in their bed. M.D. recalled Moore “getting up and getting down” during
the night before finally staying asleep. (Id. at 368.) M.D. arose in the morning and went to
work. Later that day after work, L.M. took A.D. to stay at L.M.’s house with the child’s
father. (Id. at 373.) Later still, A.D.’s father came to M.D.’s house. He was angry and was
looking for Moore. (Id. at 383.) In response, M.D. called A.D. on the telephone and asked
whether Moore had tried to touch her. A.D. started crying and responded affirmatively.
(Id. at 384-386.) Moore was home with M.D. at the time, and he “took off out the back
door.” (Id. at 387.) A.D. then returned to M.D.’s house within minutes, and M.D. called the
police. (Id.) A.D. disclosed to the police that Moore had put his penis in her vagina. (Id. at
388.) M.D. then took A.D. to the hospital for an examination by a sexual-assault nurse.
She later took A.D. to Michael’s House, a child-advocacy center, to be interviewed and to
a clinic for another examination. (Id. at 390.)
{¶ 11} The next witness at trial was A.D.’s cousin, A.M. She testified about one
occasion in the summer of 2017 when she was at M.D.’s house watching movies and she
saw Moore appear to be touching A.D.’s “butt.” (Id. at 408-410.) She could not actually
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see his hand, however, because it was under the covers. (Id. at 411.)
{¶ 12} Xenia police officer David Wilson testified about arriving at the Atkinson
residence following A.D.’s disclosure. He met police officer Rebecca Lilje there and
proceeded to collect evidence and photograph the scene. (Id. at 424-450.) For her part,
Lilje testified about interviewing A.D. at the Atkinson residence. She recalled that A.D’s
eyes were red, and it appeared as if the child had been crying. A.D. also seemed nervous.
(Id. at 544.) A.D. told the officer that she had returned home from King’s Island and had
showered before falling asleep in her mother’s bed. She awoke to find her pants pulled
down with Moore in the bed trying to have sex with her. (Id. at 553.) A.D. tried to pull
away, but Moore succeeded in placing his penis inside her vagina. (Id.) A.D. told Lilje that
she still was wearing the same underwear she had on when the incident occurred. (Id. at
554.)
{¶ 13} Dr. Kelly Liker also testified as a prosecution witness at trial. She was the
medical director of child advocacy at Dayton Children’s Hospital. (Id. at 453.) A.D. was
referred to Liker by Michael’s House. Liker examined A.D. on July 24, 2017. (Id. at 463.)
Prior to the examination, Liker reviewed a summary from Michael’s House identifying the
types of sexual contact that A.D. claimed had occurred. (Id. at 467.) A.D. proceeded to
tell Liker that Moore had forced her to engage in sexual intercourse with him. (Id. at 468.)
She added that Moore’s “private part also made contact with her butt and with her
mouth[.]” (Id.) Liker’s physical examination of the child was “normal.” (Id. at 473.) Such a
finding neither supports nor rebuts a claim of sexual abuse. (Id. at 474, 485.)
{¶ 14} The next witness was Kelly Azzam, a pediatric sexual assault nurse
examiner at Dayton Children’s Hospital. (Id. at 492.) She testified about examining A.D.
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on June 17, 2017, shortly after A.D. made her disclosures of sexual abuse. Azzam took
A.D.’s underwear, collected various swabs, and obtained information from the child about
the most recent incident. (Id. at 503-523.) A.D. reported that Moore was touching her
“butt,” that she awoke with her pants down, and that she thought he put his “private” in
her “private.” (Id. at 514.) On a spreadsheet, Azzam check-marked “unsure” as A.D.’s
response when asked about specific forms of sexual contact and conduct with Moore. (Id.
at 510.) Azzam check-marked “no” for oral contact involving A.D.’s mouth and Moore’s
genitals. (Id.) Azzam’s spreadsheet reflected that A.D.’s emotional status during the
examination was “calm.” (Id. at 514.) She testified that it was “very common” for children
not to come forward with all of the details when reporting sexual abuse. (Id. at 534.)
{¶ 15} The State also called detective Jeff Moore as a prosecution witness. He
was the lead detective investigating A.D.’s sexual-abuse allegations. (Id. at 565.) The first
thing he did was set up an interview for A.D. at Michael’s House, where he knew there
would be someone specially trained in interviewing child sexual-abuse victims. (Id. at 568-
569.) Detective Moore was present when the initial Michael’s House interview occurred
on June 20, 2017. He observed it from another room on a television. (Id. at 570.) Moore
testified that a second interview occurred at Michael’s House on July 18, 2017. He
observed that interview from another room the same way. (Id. at 573.) He did not
personally ask A.D. any questions during either interview. (Id.) Detective Moore explained
that he did not ask for various items taken from M.D.’s home to be tested by the crime
lab—particularly sheets, pillow cases, and a blanket—because they came from Moore’s
bedroom and for that reason would have his DNA on them and, therefore, would not assist
in the investigation. (Id. at 585-586.) He explained that he would expect to find DNA from
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Moore, M.D., and A.D. on the items because they all sometimes slept in the same bed.
(Id.)
{¶ 16} The final prosecution witness was Amy Ferguson, a family-services
coordinator at Michael’s House, where she was employed through Dayton Children’s
Hospital. (Id. at 603.) Ferguson testified that she conducted forensic interviews with A.D.
on June 20, 2017 and July 18, 2017 following a referral from the Xenia police department.
(Id. at 613-614.) Ferguson stated that the questions she asked and the responses A.D.
gave were for the purpose of medical diagnosis and treatment. (Id. at 626.) More
specifically, she testified that the questions and answers would be “forwarded * * * to both
mental health and medical for purposes of evaluation for both of those.” (Id.) The trial
court allowed the jury to view a recording of the first interview while Ferguson narrated it.
{¶ 17} During the first interview, A.D. reported that Moore had pulled down her
pants and rubbed her buttocks with his hand. She stated that he sometimes would roll
her on her side, pull down her pants, and “put his thing inside her private and more it back
and forth.” (Id. at 628.) She also told Ferguson that Moore sometimes “would put his hand
under her shirt and squeeze and rub her boobs” or would touch her vagina with his finger.
(Id. at 628-630.) A.D. additionally told Ferguson about a time when Moore put his penis
in her vagina while her mother, M.D., was taking a shower. (Id. at 631.) A.D. recalled a
night when Moore had sex with her in her mother’s bed before getting up, leaving the
room, and then coming back and having sex with her a second time. (Id. at 638.) A.D.
then described an incident when Moore put his finger in her vagina and moved it around.
(Id.) A.D. also recalled a time in Kentucky when Moore touched her vagina with his finger
and another time when he put his foot in her “private” in her mother’s bed. (Id. at 639-
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640.) In addition, A.D. “talked about a time where he would have her take her hand and
physically put her hand on his penis and move her hand around on his penis. As well as
times in the old house where he put his penis in her mouth.” (Id. at 640.) At one point
during the interview, Ferguson took a break to consult with the observers in the other
room, presumably including law enforcement, to see whether they had “any follow up
questions.” (Id. at 641.)
{¶ 18} With regard to the second interview on July 18, 2017, Ferguson testified
that she did not obtain any additional, significant information. (Id. at 618.) She reiterated
that the information she obtains from forensic interviews goes to a physician for possible
medical treatment and to mental health professionals for possible psychological
treatment. (Id. at 644.)
{¶ 19} Following Ferguson’s testimony, the State rested its case. (Id. at 647.) The
State then requested and obtained the dismissal of several counts of the indictment. (Id.
at 691-706.) As to the remaining counts, the trial court overruled a motion for judgment of
acquittal. (Id. at 715-723.) The jury found Moore guilty on all remaining charges (counts
1-4, 7-10, 13-14, and 17-19). The trial court imposed an aggregate prison sentence of
108 years to five life terms. This appeal followed.
{¶ 20} In his first four assignments of error, Moore challenges the trial court’s
admission into evidence of statements A.D. made to various people. His first assignment
of error concerns Ferguson’s testimony about what A.D. told her and the recording that
was played for the jury. Citing State v. Arnold, 126 Ohio St. 3d 296, 2010-Ohio-2742, 933
N.E.2d 775, and State v. Remy, 2d Dist. Clark No. 2017-CA-6, 2018-Ohio-2856, Moore
contends the primary purpose of Ferguson’s interviews was forensic information
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gathering, not medical diagnosis or treatment. Therefore, he asserts that the challenged
evidence was hearsay and not admissible under Evid.R. 803(4), which provides a
hearsay exception for statements made for purposes of medical diagnosis or treatment.
{¶ 21} Hearsay challenges to a trial court’s admission of statements from children
in sex-abuse cases are reviewed under an abuse-of-discretion standard. State v. Muttart,
116 Ohio St. 3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 48. The Ohio Supreme Court has
defined “abuse of discretion” as an “unreasonable, arbitrary, or unconscionable use of
discretion, or as a view or action that no conscientious judge could honestly have taken.”
State v. Kirkland, 140 Ohio St. 3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67. Most often,
an abuse of discretion will produce a decision that is unreasonable, not unconscionable
or arbitrary. A decision is unreasonable if it is not supported by a sound reasoning
process. State v. Pettiford, 2d Dist. Montgomery No. 27490, 2019-Ohio-892, ¶ 15.
{¶ 22} Here the record reflects that Ferguson was employed by Dayton Children’s
Hospital and placed at Michael’s House, a child-advocacy center. (Tr. at 603-604.)
Ferguson described a child-advocacy center as a “one-stop shop for a child with
allegations of maltreatment.” (Id. at 605.) The purpose is to have a child come to one
location “to be seen there by all those parties who have an interest in what the child might
say.” (Id.) Such parties might include “children’s services, law enforcement, victim
advocacy, prosecution, mental health and the medical component.” (Id. at 606.) Although
one or more representatives of law enforcement watched Ferguson’s two interviews with
A.D. from another room, Ferguson testified that the primary purpose of Michael’s House
was not to obtain a criminal conviction. She explained that the primary purpose was “to
meet with the child, [hear] what they have to say about what has or has not happened in
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their lives to ensure their safety and overall wellbeing as well as to have referrals for any
type of services that they may need.” (Id. at 607.)
{¶ 23} Ferguson testified that she conducted two “forensic interviews” with A.D.,
one on June 20, 2017 and the second on July 18, 2017. (Id. at 613-614.) She described
a forensic interview as “a mutual fact finding conversation with a child conduct[ed] in a
multi-disciplinary—it’s a multi-disciplinary approach to maltreatment.” (Id. at 608-609.)
According to Ferguson, such an interview “is done in a non-leading way. It’s a
conversation that is conducted in a narrative style so the child can tell us in their own
words what’s going on with open-ended questions.” (Id. at 609.) Ferguson stated that she
made a referral for mental-health counseling for A.D. after the first interview. (Id. at 617.)
She also made a referral for A.D. to be examined at Dayton Children’s Hospital. (Id.) The
record reflects that Dr. Liker received the referral from Michael’s House and reviewed a
summary of Ferguson’s forensic interview as well as A.D.’s emergency-room record
before examining the child in July 2017. (Tr. at 455, 463-464, 467.) Ferguson’s summary
included “the types of contact” that A.D. had disclosed. 1 (Id. at 467.) With regard to
Ferguson’s second interview, she testified that she did not obtain any significant
additional information. (Id. at 618.) At trial, Ferguson did not testify about the substance
of the second interview, and the jury did not view the recording of it. (Id. at 618, 663.)
{¶ 24} Over Moore’s objection, the trial court did allow the State to play a recording
1 For purposes of Dr. Liker’s testimony about her medical examination of A.D., the State
indicated it did not offer the information obtained from Michael’s House for the truth of the
matter asserted. The State offered the information “to give the jury some insight as to why
the doctor’s examination proceeded the way it did.” (Tr. at 467.) Without objection,
however, the State did offer A.D. statements during the doctor’s examination for the truth
of the matter asserted on the basis that the child’s statements to Liker were for medical
diagnosis or treatment. (Id. at 468-469, 471-473.)
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of Ferguson’s first interview with A.D. (Id. at 618, 626.) Partially because A.D. was soft-
spoken, the trial court permitted Ferguson to narrate and to summarize what A.D. said
during the interview. Moore did not object to this procedure. (Id. at 635-636.) Roughly a
quarter of the hour-long interview involved rapport-building that included discussion of
A.D.’s family and her participation in sports. After that, Ferguson and A.D. discussed the
allegations of sexual abuse by Moore for approximately 35 minutes. The last portion of
the interview included a five-minute break and discussion of A.D. worrying about not being
a virgin any longer and her prior fears of becoming pregnant (which did not occur). The
discussion of sexual abuse during the middle of the interview involved disclosures by A.D.
about numerous instances of Moore touching her and engaging in various forms of sexual
activity with her. A.D. described the incidents and provided contextual details, including,
among other things, the rooms in which the acts occurred and in which house, the
physical layout of the house, whether anyone else was in the room or in the house, what
Moore said during the incidents, Moore “moaning” while performing sex acts and taking
out his penis and holding it, and whether Moore sometimes thought A.D. was asleep.
{¶ 25} In Remy, 2d Dist. Clark No. 2017-CA-6, 2018-Ohio-2856, this court recently
considered whether statements made by child sex-abuse victims were admissible under
Evid.R. 803(4) as statements made for purposes of medical diagnosis or treatment. Remy
involved three young children who had been sexually abused by their stepfather. After
disclosing the abuse, they underwent forensic interviews at a child-advocacy center. The
trial court found the children’s statements admissible under Evid.R. 803(4). On appeal,
this court first noted that “[i]n determining whether statements made to a forensic
interviewer at a child advocacy center are made for the purpose of medical diagnosis and
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treatment, as opposed to forensic investigative purposes, the court must ‘identify the
primary purpose of the statements.’ ” Remy at ¶ 82, citing Arnold, 126 Ohio St. 3d 296,
2010-Ohio-2742, 933 N.E.2d 775, at ¶ 28. This court then found that the trial court had
erred in admitting the children’s statements under Evid.R. 803(4) but that the error was
harmless, reasoning:
Based on the evidence before us, the primary purpose of [social
worker] Lowe’s forensic interviews with D.C., J.C., and K.C. was for forensic
information-gathering, not for the purpose of medical diagnosis and
treatment. The interviews were coordinated with law enforcement
personnel, Detective Fent observed the interviews from an observation
room, and Lowe consulted with Detective Fent prior to completing the
interviews that the detective attended. The interviews were not conducted
in a medical facility or through referrals from a medical facility, and there is
no indication that the children gave the statements for purposes of obtaining
a medical diagnosis or treatment. Although referrals to physicians and
counselors were made following certain interviews, the primary goals stated
by Lowe were information-gathering for child safety, not to provide
immediate medical (physical or mental health) care and diagnosis.
Although the recorded videos of Lowe’s interviews were
objectionable, we nevertheless conclude, upon review of the entire record,
that their admission was harmless. As with the statements in [another trial
witness’s] recordings, the allegations by the children in the challenged
interviews with Lowe were repeated to other medical professionals and/or
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therapists. Accordingly, the content of the children’s statements would have
been before the jury even absent the video-taped interviews. In addition,
even without the video-recordings, Lowe would have been permitted to
testify about the demeanor of the children during the interviews and to the
referrals that were made as a result of the girls’ statements during the
interviews. Arguably, Lowe might have been permitted to testify about some
of the girls’ allegations to explain why the referrals were made, but not for
the truth of the allegations themselves.
Id. at ¶ 90-91.
{¶ 26} In Arnold, the Ohio Supreme Court also considered the admissibility of
statements made during interviews at child-advocacy centers. Arnold involved a
Confrontation Clause challenge rather than Evid.R. 803(4), but the pertinent inquiry was
the same. The issue in Arnold was whether a child’s statements during an interview were
for medical diagnosis or treatment, making them “non-testimonial,” or whether they
primarily served a forensic or investigative purpose, making them “testimonial” in violation
of the defendant’s confrontation rights. In addressing this issue, the Ohio Supreme Court
recognized that child-advocacy centers are unique insofar as a single interview with a
child serves “dual purposes,” which are: “(1) to gather forensic information to investigate
and potentially prosecute a defendant for the offense and (2) to elicit information
necessary for medical diagnosis and treatment of the victim.” Arnold at ¶ 33. The majority
then turned to the substance of the child’s interview. It reasoned that some of the child’s
statements primarily had a forensic or investigative purpose. They included the child’s
assertion that the defendant had “shut and locked the bedroom door before raping her;
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her descriptions of where her mother and brother were while she was in the bedroom with
Arnold, of Arnold’s boxer shorts, of him removing them, and of what Arnold’s ‘pee-pee’
looked like; and her statement that Arnold removed her underwear.” Id. at ¶ 34. The Ohio
Supreme Court reasoned that “[t]hese statements likely were not necessary for medical
diagnosis or treatment. Rather, they related primarily to the state’s investigation.” Id.
{¶ 27} The Arnold court also found, however, that “other statements provided
information that was necessary to diagnose and medically treat” the child victim. Id. at
¶ 37. It noted that “[t]he history obtained during the interview is important for the doctor or
nurse practitioner to make an accurate diagnosis and to determine what evaluation and
treatment are necessary. For example, the nurse practitioner conducts a ‘head to toe’
examination of all children, but only examines the genital area of patients who disclose
sexual abuse. That portion of the exam is to identify any trauma or injury sustained during
the alleged abuse.” Id. In particular, the Ohio Supreme Court held that the following
statements by the victim during the interview were necessary for medical diagnosis or
treatment: “statements that described the acts that Arnold performed, including that
Arnold touched her ‘pee-pee,’ that Arnold’s ‘pee-pee’ went inside her ‘pee-pee,’ that
Arnold’s ‘pee-pee’ touched her ‘butt,’ that Arnold’s hand touched her ‘pee-pee,’ and that
Arnold’s mouth touched her ‘pee-pee.’ ” Id. at ¶ 38. The fact that the victim already had
undergone a “rape-kit examination” did not dissuade the majority from finding that the
foregoing statements were necessary for subsequent medical diagnosis or treatment. Id.
at ¶ 39. The majority also found nothing objectionable about considering the child’s
statements individually to determine which ones were for medical diagnosis or treatment
and to exclude those that were not. Id. at ¶ 42. Finally, the Ohio Supreme Court found
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nothing objectionable about the fact that police watched the interview or the fact that
information obtained for medical purposes ultimately was used to prosecute the
defendant. These considerations did “not change the fact” that some of the child’s
statements “were made for medical diagnosis and treatment.” Id. at ¶ 43.
{¶ 28} In State v. Warman, 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244,
the Twelfth District applied Arnold in a case involving a recording of an interview at a
child-advocacy center. After reviewing the child’s statements during the interview, the
Twelfth District concluded that some of them were admissible under Evid.R. 803(4) and
some were not. Although the trial court in Warman had allowed the jury to see a video of
the entire recorded interview, the Twelfth District held that the introduction of the
inadmissible statements was harmless error. It reasoned:
With respect to KG6’s interview, the video was over an hour long and
was played in its entirety for the jury. The video begins with [social worker’s]
Colliers asking general questions of KG6 regarding safety. Colliers later
asks KG6 questions concerning her knowledge about male and female
anatomy, and asked her to identify body parts, including genitalia, on
anatomically correct depictions of a nude girl and boy. Eventually, Colliers
asks KG6 about the ring pop game. KG6 tells Colliers she played the ring
pop game “one time” at a “drive-thru.” She identifies where she was located
in the car when she played the game and where her siblings were located.
She describes how Warman tried to play the ring pop game with her sister.
She tells Colliers that Warman told her not to tell her mommy about the ring
pop game. She describes seeing Warman’s penis. She also states that she
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had to put a shirt around her eyes and that Warman told her to “duck” [i.e.,
bend over toward his pants]. Finally, she states that Warman told her to
taste some food on his penis but she forgot what kind of food it was.
Under Arnold, KG6’s statements concerning the specifics of the
sexual act she performed, i.e., how many times she did it, her physical
interaction with his penis, and “ducking,” were primarily for the purpose of
medical treatment. However, the remaining information in the interview,
including where the car was located, where she and her siblings were
situated in the car, and that she had a shirt around her eyes were
statements drawn from her primarily for a forensic or investigative purpose.
Because these statements were not primarily for medical diagnosis or
treatment they should not have been admitted under the Evid.R. 803(4)
hearsay exception.
Accordingly, some of the statements KG6 made in the interview did
not fall under the hearsay exception for medical diagnosis or treatment, and
therefore the admission of those statements was error to the extent that
they were offered to prove the truth of the matter they asserted. However,
such error was harmless as the state presented ample evidence other than
the video-recorded interview to sustain Warman’s conviction for the rape of
KG6. * * * As will be discussed in greater detail in the next assignment of
error, KG6 testified concerning the ring pop game and graphically described
how Warman raped her. Her testimony was far more descriptive than what
she discussed with Colliers during the interview. Accordingly, we are
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convinced that the jury necessarily relied on KG6’s testimony rather than
her recorded statements in concluding that Warman was guilty of raping
her.
Warman at ¶ 50-52.
{¶ 29} Having reviewed the recording of Ferguson’s first interview with A.D., which
was the only one shown to the jury, we find that it is similar to the interviews at issue in
Arnold and Warman. The record supports a finding that the primary purpose of some of
A.D.’s statements was for medical diagnosis or treatment, and we certainly cannot say
such a conclusion was an abuse of discretion. Although A.D. already had undergone a
sexual-assault-kit examination by nurse-examiner Kelly Azzam shortly after the last
incident of abuse, the information Ferguson obtained during the interview at Michael’s
House was forwarded to Dr. Liker, who received the referral and used the information
when conducting a more complete medical examination. Based on our review of the
record, the trial court did not act unreasonably to the extent that it allowed the jury to hear
A.D.’s statements to Ferguson about specific sex acts Moore performed on her. Those
statements referenced multiple instances of vaginal intercourse, oral sex, contact
between Moore’s penis and A.D.’s “butt,” and touching of her breasts and vagina. The
trial court acted within its discretion in concluding that the primary purpose of these
statements was medical diagnosis or treatment.2
2 We note too that A.D. testified at trial and provided substantially similar testimony about
Moore engaging in numerous and varied sex acts with her over a period of years. In
addition, Dr. Liker testified without objection about A.D. stating during her medical
examination that Moore had put “his private part in hers” and “that his private part also
made contact with her butt and with her mouth.” (Tr. at 468.) The parties agreed that
A.D.’s statements to Dr. Liker were admissible as statements made for medical diagnosis
or treatment. (Id. at 471-473.)
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{¶ 30} We believe the trial court erred, however, insofar as it allowed the jury to
hear all of A.D.’s statements to Ferguson. For example, A.D.’s statements about the
physical location of the abuse and the layout of the house, the presence of anyone else,
what Moore said or sounds he made while performing sex acts, and whether A.D. was
asleep all appear to have been elicited and made primarily for investigatory purposes.
These sorts of contextual statements were not reasonably necessary for medical
diagnosis or treatment and, therefore, were not admissible under the Evid.R. 803(4)
hearsay exception. As the Twelfth District did in Warman, however, we find that the trial
court’s admission of these non-medical statements constituted harmless error. For
purposes of Moore’s convictions, the key aspects of A.D.’s testimony were her
disclosures of specific acts of sexual abuse he committed, not the rooms in which they
occurred, who else was home at the time, what Moore might have said, or other things.
In addition, A.D. testified at trial and provided most of the same contextual details that the
jury heard on the recording. For these reasons, we are firmly convinced that the trial
court’s admission of the hearsay statements in Ferguson’s interview with A.D. was
harmless and did not impact the jury’s verdict.
{¶ 31} Finally, our analysis herein is not inconsistent with our recent opinion in
Remy. In that case, we concluded that the primary purpose of the child-advocacy center
interviews, as a whole, was forensic information-gathering, not medical diagnosis or
treatment. Although Remy mentioned unspecified “referrals” being made, the connection
between the children’s statements and their use for medical diagnosis or treatment was
much less clear than in the present case. As set forth above, Dr. Liker testified that she
actually used the information obtained by Ferguson when conducting a subsequent
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medical examination of A.D.
{¶ 32} We note too that in the Remy opinion cited by Moore and discussed above,
this court did not attempt to parse the children’s statements to determine whether the
primary purpose for some of them might have been medical diagnosis or treatment.
Instead, we simply conducted a harmless-error analysis. As illustrated by Arnold and
Warman, however, it is also appropriate to consider a child’s statements one-by-one to
see whether any of them fit within the Evid.R. 803(4) hearsay exception. In fact, in a
second Remy case not cited by Moore, this court addressed the same interviews in the
context of the children’s mother’s appeal from her own convictions related to her
husband’s abuse.3 In State v. Remy, 2018-Ohio-2857, 117 N.E.3d 916 (2d Dist.), we
explicitly recognized that “some statements” made during the children’s interviews at the
child-advocacy center “may have been made for purpose of treatment” and, thus, may
not have been objectionable on hearsay grounds. Id. at ¶ 64-65 (acknowledging that not
all of the children’s statements at the child-advocacy center were necessarily subject to
exclusion as hearsay and recognizing that some of the statements may have been related
to medical treatment). That is precisely what we have found in Moore’s case.
{¶ 33} Having determined that the critical aspects of A.D.’s statements to Ferguson
were properly admitted under Evid.R. 803(4) and that the trial court’s erroneous
admission of other hearsay statements by A.D. during her interview at the child-advocacy
center constituted harmless error, we overrule Moore’s first assignment of error.
3 On appeal, Moore cites State v. Remy, 2d Dist. Montgomery No. 2017-CA-6, 2018-
Ohio-2856, which involved the children’s stepfather’s appeal. The second case is State
v. Remy, 2018-Ohio-2857, 117 N.E.3d 916 (2d Dist.), which involved the children’s
mother’s appeal from her conviction on related charges.
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{¶ 34} In his second assignment of error, Moore challenges the trial court’s
admission of testimony about disclosures A.D. made to L.M., her father’s girlfriend. Moore
claims L.M.’s testimony about A.D.’s allegations of sexual abuse constituted inadmissible
hearsay. He argues that the trial court erred in finding that A.D.’s statements to L.M.
qualified as excited utterances under Evid.R. 803(2).
{¶ 35} As set forth above, A.D. called L.M. into the kitchen to talk while at her
father’s house. According to L.M., A.D. disclosed that her pants were down when she
woke up the previous night. (Tr. at 237.) A.D. stated that her vagina felt “different,” and
she told L.M. that “it was Tony.” (Id. at 238.) L.M. and A.D. then left and drove toward the
child’s mother’s house. While in the car, L.M. inquired whether Moore and A.D. had
engaged in sexual intercourse. According to L.M., the child put her head down and stated
that they had, that it was not the first time, and that it first happened when she was 10
years old. (Id. at 256.)
{¶ 36} At trial, Moore challenged the foregoing testimony on the basis of hearsay.
After hearing argument, the trial court found A.D.’s disclosures to L.M. admissible as
excited utterances. In support, it relied on In re S.H.W., 2d Dist. Greene No. D44918,
2016-Ohio-841, a case it found to be “pretty much on four corners with the facts” in
Moore’s case. (Id. at 253.)
{¶ 37} In S.H.W., the victim, D.R., was a five-year-old boy. The defendant was a
teen-aged babysitter who sexually abused the victim on one occasion in a library
bathroom. At trial, the victim’s mother, M.R, testified about him acting strangely the
evening after the abuse and complaining about a painful bowel movement. Id. at ¶ 5. She
described her son as “lethargic,” and she noted that he remained “temperamental” and
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“distant” over the next few days. Id. She also observed him stroking his penis. Id. Five
days after the abuse, the victim told his mother that he was “going to put his penis in her
butt.” Id at ¶ 6. When the victim’s mother asked where he had heard something like that,
he proceeded to disclose that the defendant had taken him into a library bathroom and
had performed sexual acts. Id. The trial court held that the child’s statements to his mother
qualified as excited utterances under Evid.R. 803(2).
{¶ 38} On appeal, this court agreed with the trial court. We noted that for a
statement to be admissible under the excited-utterance exception to the hearsay rule,
four requirements must be met: “ ‘(1) the occurrence of an event startling enough to
produce a nervous excitement in the declarant; (2) a statement made while still under the
stress of excitement caused by the event; (3) a statement related to the startling event;
and (4) the declarant’s personal observation of the startling event.’ ” Id. at ¶ 20, quoting
State v. Abner, 2d Dist. Montgomery No. 20661, 2006-Ohio-4510, ¶ 69. We also noted
that “[t]he excited utterance exception to the hearsay rule should be applied liberally in a
case involving the sexual abuse of a young child. State v. Boston, 46 Ohio St. 3d 108,
118, 545 N.E.2d 1220 (1989). This is based upon the age of the child, the shocking nature
of the act, and the surprising nature of the assault.” Id. at ¶ 22. Addressing the passage
of time, we observed:
The passage of time between the event and the child’s out-of-court
statement, while obviously a factor, is not dispositive. Even when the
statement is made after a substantial lapse of time, it may be admitted under
the excited-utterance exception. [State v.] Taylor, 66 Ohio St. 3d 295, 303-
304 (1993). Where a young child claims to have been the victim of a sexual
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assault, the test for admission of the child’s statements does not focus upon
the progression of the startling event or occurrence, but upon the
spontaneous nature of the child’s statement. State v. Huntley, 2d Dist.
Montgomery No. 23545, 2010-Ohio-6102, ¶ 35. Children are likely to remain
in a state of nervous excitement longer than would an adult, and therefore
it has been held that admission of statements of a child regarding sexual
assault may be proper under the excited utterance exception even when
they are made after a substantial lapse of time. Taylor, 66 Ohio St. 3d 295,
304 (1993). The Ohio Supreme Court also held in Taylor that there is no per
se amount of time after which a statement can no longer be considered to
be an excited utterance; the central requirements are that the statement
must be made while the declarant is still under the stress of the event and
the statement may not be a result of reflective thought. Id.
Id. at ¶ 23.
{¶ 39} After setting forth the applicable standards in S.H.W., we reasoned as
follows:
Upon review, we agree with the trial court and find that D.R.’s
statements to his mother were not the product of leading and/or coercive
questioning on the part of M.R. Significantly, the record establishes that the
following statements made by D.R. to his mother were spontaneous and not
the result of any type of questioning: 1) “my penis is a turtle, it goes in and
out of its shell;” 2) “my penis is a groundhog, it goes into the hole;” and 3)
“I'm going to put my penis in your butt.” All three of the statements made by
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D.R. related to a startling event, were spontaneously uttered, and regarded
a subject matter ordinarily foreign to a young child. Moreover, upon hearing
D.R. state that he was “going to put [his] penis in [her] butt,” M.R. simply
asked the child where he had previously heard that phrase because he had
never said anything like that before. D.R. responded by asking M.R., “if I tell
you, will you forget?” When M.R. responded by reassuring him that she
would, in fact, “forget,” D.R. told her what S.H.W. had done to him. M.R. did
not ask D.R. any leading questions, nor does the record establish that she
coerced D.R. into telling her about the sexual assault committed by S.H.W.
M.R. further testified that in the days after the sexual assault
occurred and before he informed her of the incident, D.R. was acting
“defeated” and as if “something was troubling him.” M.R. testified that D.R.,
who was usually very bright and energetic, acted very angry and
emotionally volatile, stating that he “hated [him]self” on at least one
occasion. M.R. testified that during a trip to the zoo in the following week
after the assault occurred, D.R. stated that he wanted to run out in front of
a train that ran around the property and kill himself. Coupled with his
emotionally volatile behavior, D.R.’s request that M.R. “forget if he told what
happened” establishes that he was still under the stress of the shocking
event when he made the statements to his mother. Accordingly, neither
M.R.’s non-coercive follow-up questions, nor the passage of approximately
five days, destroyed the spontaneity and nervous excitement of D.R.’s
statements regarding the event. Thus, the trial court did not err when it
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admitted D.R.’s statements to M.R. as excited utterances pursuant to
Evid.R. 803(2).
S.H.W. at ¶ 24-25.
{¶ 40} Having reviewed S.H.W., we find significant factual distinctions between
that case and the present one. The child victim in that case was five years old. The sexual
abuse that occurred was a one-time event. The evidence established that the child
remained under the stress and excitement of that startling event when he disclosed the
abuse to his mother. Moreover, given his young age and apparent inability to understand
exactly what had occurred, his disclosures do not appear to have been the product of any
reflective thought.
{¶ 41} In contrast to S.H.W., the victim in the present case, A.D., was 13 years old
at the time of her initial disclosure. The alleged abuse had been occurring regularly for
years. While we recognize the severe emotional damage that such long-term abuse can
cause, the stress and nervous excitement resulting from the last episode of Moore’s
repetitive abuse of A.D. could be viewed differently from the stress and nervous
excitement existing in a five-year-old boy who experienced a single shocking episode and
did not fully comprehend it.
{¶ 42} We note too that A.D. does appear to have engaged in reflective thought
before making her disclosures. L.M. testified that A.D. normally had an “outgoing” and
“bubbly” personality. On the evening before her disclosure, however, A.D. was “quiet,”
had “a blank stare,” and would not really make eye contact with L.M. (Tr. at 221.) While
braiding L.M.’s hair in the living room, A.D. brought up the subject of Moore, stating that
he got on her nerves and that she did not want to stay at her mother’s house anymore.
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(Id. at 222, 229.) At that point, A.D.’s father asked whether Moore had touched her. (Id.
at 230.) A.D. did not respond and kept braiding L.M.’s hair. (Id.) After she finished, A.D.
then made a decision to go into the kitchen by herself. A minute or two later, she called
for L.M. and disclosed what Moore had done. (Id. at 231.) L.M. testified that A.D. “seemed
scared, confused on what to do next, if she was doing the right thing.” (Id. at 240.) In her
own testimony, A.D. explained that she told L.M. because “I just felt like I could talk to her
about stuff.” (Id. at 62.)
{¶ 43} The foregoing facts suggest that A.D. reflected on her disclosure to L.M.
before making it. On the other hand, she plainly was troubled in the living room, and she
purposely brought up the subject of Moore herself. She did not respond, however, when
her father asked where Moore had touched her. Instead, she went into the kitchen by
herself for a short time, apparently working up the courage to call for L.M., with whom she
felt more comfortable. A.D.’s actions that evening were understandable, but the question
is whether she made her disclosures while under stress and excitement caused by a
startling event of the last incident of years of abuse, rather than as a result of reflective
thought. Accepting that the excited-utterance exception to hearsay should be applied
“liberally” in cases involving sexual abuse of “young children,” we cannot say the trial
court’s application of the exception here was unreasonable.
{¶ 44} Even if we were to conclude that the trial court abused its discretion in
allowing L.M. to testify about A.D.’s disclosures, we agree with the State’s alternative
argument that any error was harmless beyond a reasonable doubt. L.M.’s testimony about
A.D.’s initial disclosures in the kitchen and in the car was relatively insignificant in light of
A.D.’s own extensive trial testimony about numerous sexual acts Moore performed on her
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over a period of years. Because the jury heard much more directly from A.D. than it heard
from L.M., the outcome at trial hinged primarily on the jury’s assessment of A.D.’s
credibility. We are firmly convinced that the jury’s verdict would have been the same
without L.M.’s testimony. In addition, we note that A.D.’s statements to L.M. in the kitchen
about her pants being down and about Moore being involved addressed only the final
incident of sexual abuse. The DNA from semen found in A.D.’s underwear constituted
overwhelming evidence of Moore’s involvement in that offense. For these reasons, the
trial court’s admission of L.M.’s testimony about A.D.’s disclosures would constitute
harmless error, if error at all. The second assignment of error is overruled.
{¶ 45} In his third assignment of error, Moore claims the trial court erred in allowing
A.D.’s mother, M.D., to testify about what the child told her regarding sexual abuse. Moore
claims what the child told her mother constituted inadmissible hearsay.
{¶ 46} Moore’s assignment of error addresses only one statement by the child.
M.D. testified that she spoke to A.D. on the telephone the evening of the child’s initial
disclosure and asked, “[D]id Tony try to touch you?” (Tr. at 384.) M.D. testified that A.D.
started crying and responded, “[Y]es, mommy it’s true.” (Id.) Defense counsel objected
on the basis of hearsay. The trial court overruled the objection, finding the child’s
response to be an excited utterance. (Id. at 384-386.) On appeal, Moore argues: “The
statement was clearly hearsay. It was not spontaneous. The statement was made after
the leading, coercive and suggestive question by her mother. The statement should not
have been allowed.” (Appellant’s brief at 14.)
{¶ 47} Upon review, we agree with Moore that A.D.’s disclosure to her mother was
inadmissible hearsay. Even taking into account the relaxed rules applicable to disclosures
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by child sex-abuse victims, we are unpersuaded that A.D.’s statement to her mother about
Moore touching her constituted an excited utterance. Once again, however, we also agree
with the State’s alternative argument that the admission of M.D.’s testimony about A.D.’s
disclosure was harmless beyond a reasonable doubt. In light of A.D.’s own detailed
testimony about Moore sexually abusing her many times, the jury’s verdict undoubtedly
would have been the same regardless of M.D.’s testimony about A.D. saying “yes” when
asked whether Moore had touched her. We again note the DNA evidence, unrelated to
and undiminished by any hearsay, which constituted overwhelming evidence of Moore’s
sexual conduct with A.D. The third assignment of error is overruled.
{¶ 48} In his fourth assignment of error, Moore claims the trial court erred in
allowing police officer Rebecca Lilje to testify about A.D.’s allegations of sexual abuse.
As set forth above, Lilje spoke to A.D. at the child’s mother’s house on the evening of the
initial disclosure. At trial, Lilje described A.D. as appearing “nervous” as they began to
talk about Moore. (Id. at 548.) When Lilje attempted to testify about what the child claimed
had occurred, defense counsel objected on the basis of hearsay. (Id. at 548-549.) The
trial court overruled the objection without specifying the basis for its ruling.4 (Id. at 551.)
Lilje proceeded to testify about A.D.’s allegations regarding the incident the previous
night. (Id. at 552-553.)
{¶ 49} Unlike his first three assignments of error, Moore’s fourth assignment of
error does not raise a hearsay argument. Instead, he contends only that the trial court
4 On appeal, Moore contends the trial court admitted A.D.’s statements as excited
utterances. The trial court did not indicate the basis for its ruling, however, and the State
presented two arguments for admissibility: (1) the excited-utterance exception to hearsay
and (2) the statements were prior consistent statements to rebut a charge of recent
fabrication. (Tr. at 549-551.)
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should have excluded A.D.’s statements to Lilje because they were “testimonial” in nature.
(Appellant’s brief at 14-15.) In support, he cites State v. Siler, 116 Ohio St. 3d 39, 2007-
Ohio-5637, 876 N.E.2d 534, which involved a Confrontation Clause challenge to a child’s
statements made in response to police questioning. The State properly notes, however,
that the admission of a declarant’s out-of-court statements does not violate the
Confrontation Clause where the declarant testifies at trial and is subject to full and
effective cross examination. Remy, 2018-Ohio-2857, 117 N.E.3d 916 (2d Dist.), ¶ 40-41.
Because A.D. testified at trial and was subject to extensive cross examination, no
Confrontation Clause violation occurred. The fourth assignment of error is overruled.
{¶ 50} In his fifth assignment of error, Moore challenges the trial court’s decision
to allow leading questioning of A.D. about anal intercourse allegations.
{¶ 51} The record reflects that A.D. responded “yes” when asked whether Moore
ever had put his penis in her “butt.” The child stated that she could not remember “the
times” it had happened or where it had occurred. (Tr. at 91.) The prosecutor then asked
for permission to ask leading questions, explaining that the child previously had provided
more details about such incidents. (Id. at 92.) After taking an off-the-record break, the trial
court appears to have allowed limited leading questioning, although its ultimate ruling is
not on the record. (Id. at 92-96.) In any event, the prosecutor proceeded to question A.D.
about incidents of anal sex with Moore. (Id. at 96-101.)
{¶ 52} Contrary to Moore’s argument, however, few of the prosecutor’s questions
accurately can be characterized as leading. “A leading question is ‘one that suggests to
the witness the answer desired by the examiner.’ ” (Citation omitted) State v. Diar, 120
Ohio St. 3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 149. Most of the prosecutor’s
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questions to A.D. involved a specific area of inquiry and were binary in nature in the sense
that they called for a “yes” or “no” answer. But the vast majority of the questions did not
suggest which answer the prosecutor desired. Nor did the prosecutor embed an answer
in the question. We have recognized that a question calling for a “yes” or “no” answer but
not suggesting the answer is not leading. State v. Taylor, 2d Dist. Montgomery No. 20944,
2006-Ohio-843, ¶ 47, 56. To the extent any leading questioning did occur, trial courts
have wide latitude in handling such matters, particularly in cases involving alleged child
sex-abuse victims. State v. Howard, 2d Dist. Montgomery No. 26360, 2015-Ohio-3917,
¶ 43. Having reviewed the record, we see no abuse of discretion in the trial court’s
handling of the issue. The fifth assignment of error is overruled.
{¶ 53} In his sixth assignment of error, Moore maintains that “cumulative error”
deprived him of a fair trial. He asserts that the alleged evidentiary errors discussed above,
even if individually harmless, constituted prejudicial error when aggregated.
{¶ 54} It is true that separately harmless errors may violate a defendant’s right to
a fair trial when the errors are aggregated. State v. Madrigal, 87 Ohio St. 3d 378, 397, 721
N.E.2d 52 (2000). To find cumulative error, we first must find multiple errors committed at
trial. Id. at 398. We then must find a reasonable probability that the outcome below would
have been different but for the combination of separately harmless errors. State v.
Thomas, 2d Dist. Clark No. 2000-CA-43, 2001 WL 1103328, *9 (Sept. 21, 2001).
{¶ 55} Here we have found two instances of separately harmless error—the trial
court’s admission of hearsay testimony from A.D.’s mother and and its admission of
certain statements made by A.D. at the child-advocacy center that did not qualify as
statements made for medical diagnosis or treatment. As explained in our analysis of the
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previous assignments of error, the improperly admitted testimony was relatively brief and
insignificant (hearsay testimony from A.D.’s mother) or was largely repetitive of A.D.’s
own extensive testimony about Moore’s sexually abusing her for years (A.D.’s statements
at the child-advocacy center that did not pertain to medical diagnosis or treatment). Even
when the improperly admitted testimony is viewed cumulatively, we find no reasonable
probability the jury’s verdict would have been different if it had been excluded.
Accordingly, the sixth assignment of error is overruled.
{¶ 56} In his seventh assignment of error, Moore challenges the legal sufficiency
of the evidence to sustain his convictions for gross sexual imposition and rape. His entire
argument is as follows:
The substantive evidence presented against appellant on all charges
was weak. There was no medical evidence presented at trial linking
appellant to these sex offenses. The testimony of “A.D.” was inconsistent
with the account she provided medical personnel when she went to Dayton
Children’s Hospital. The convictions are also based upon the admission of
hearsay testimony which was improperly admitted. Specifically, count three,
a gross sexual imposition charge, was based solely upon the testimony of
Amy Ferguson, the forensic interviewer not “A.D.” Ms. Ferguson stated the
appellant put his hand on A.D.’s breast. Count eighteen, the anal sex
allegation, only came about due to the improper leading questions of
appellee’s trial counsel.
(Appellant’s brief at 17-18.)
{¶ 57} When a defendant challenges the sufficiency of the evidence, he is arguing
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that the State presented inadequate evidence on an element of the offense to sustain the
verdict as a matter of law. State v. Hawn, 138 Ohio App. 3d 449, 471, 741 N.E.2d 594 (2d
Dist.2000). “An appellate court’s function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” State v.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 58} With the foregoing standards in mind, we conclude that Moore’s convictions
for gross sexual imposition and rape were supported by legally sufficient evidence. A.D.’s
testimony alone was legally sufficient to support all but two of the convictions.5 Although
Moore suggests the child’s testimony lacked credibility, the test for legal sufficiency is
whether the State’s evidence, if believed, supports the convictions. Moore also suggests
that insufficient evidence remains if certain challenged evidence is excluded from
consideration. When considering a challenge to the legal sufficiency of the evidence,
however, we must consider all of the evidence presented at trial, regardless of whether it
was admitted erroneously. State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, 903
N.E.2d 284, ¶ 17-20. In any event, we determined above that the evidence he challenges
5 In its brief, the State concedes that the only evidence supporting two of the counts of
gross sexual imposition was testimony from Amy Ferguson regarding A.D.’s disclosures
at Michael’s House. (Appellee’s brief at 13.) In our analysis of Moore’s first assignment of
error, however, we held that the trial court properly admitted A.D.’s statements to
Ferguson about the acts of sexual touching that supported the gross sexual imposition
charges.
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was not improperly admitted. Finally, we note again that DNA evidence supported one of
the rape convictions, and the lack of medical evidence for any of the other convictions
does not negate the legal sufficiency of the evidence to support them. The seventh
assignment of error is overruled.
{¶ 59} In his eighth assignment of error, Moore contends his gross sexual
imposition and rape convictions were against the manifest weight of the evidence. His
entire argument is as follows:
In this case sub judice, all of appellant’s convictions for gross sexual
imposition and rape should be reversed and a new trial ordered. The
substantive evidence brought [against] appellant was thin. There [were] no
medical findings supporting the rape convictions despite the fact that
appellant allegedly repeatedly raped “A.D.” “A.D.” gave medical personnel
a different version of events from what she testified to. “A.D.”’s motive for
fabrication was to get her parents back together. The semen in her
underwear could have been caused by masturbatory emission.
(Appellant’s brief at 18-19.)
{¶ 60} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). A
judgment should be reversed as being against the manifest weight of the evidence “only
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in the exceptional case in which the evidence weighs heavily against the conviction.”
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 61} With the foregoing standards in mind, we conclude that Moore’s convictions
were not against the weight of the evidence. Although he complains about the lack of
“medical findings” to support the allegations of sexual abuse, Dr. Liker testified that it is
common for female children to have “normal” medical examinations after oral, anal, or
vaginal sex, and she explained why that was so. (Tr. at 456-460.) Liker opined that
“[u]pwards of 90 to 95 percent of children have normal exams when they’re evaluated for
sexual abuse[.]” (Id. at 489.) As for A.D.’s testimony, Moore’s assignment of error cites
no specific inconsistencies or discrepancies. Although consideration of witness credibility
is proper in the context of a manifest-weight analysis, credibility remains primarily an issue
for the jury. State v. Boehme, 2d Dist. Montgomery No. 27255, 2017-Ohio-8246, ¶ 18.
Here the jurors’ verdicts make clear that they found A.D.’s allegations credible. Having
reviewed A.D.’s testimony, we find nothing that would cause us to conclude that the jurors
lost their way in reaching this conclusion. As for Moore’s argument about A.D. having a
motive to lie and the semen found in her underwear conceivably resulting from him
masturbating, these issues primarily were for the jurors to consider. Again, the jury did
not clearly lose its way and create a manifest miscarriage of justice in finding Moore guilty.
The evidence does not weigh heavily against his convictions. The eighth assignment of
error is overruled.
{¶ 62} Moore’s ninth, tenth, and eleventh assignments of error relate to
sentencing. His ninth assignment of error challenges the trial court’s imposition of
consecutive sentences. His tenth assignment of error challenges the trial court’s
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imposition of statutory maximum sentences on each count. His eleventh assignment of
error alleges cruel and unusual punishment in violation of the Eighth Amendment to the
U.S. Constitution based on the maximum sentences he received for gross sexual
imposition and rape.
{¶ 63} When reviewing felony sentences, appellate courts apply the standard of
review found in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 9. Under that statute, an appellate court may increase, reduce,
or modify a sentence, or it may vacate the sentence and remand for resentencing, only if
it “clearly and convincingly” finds either (1) that the record does not support certain
specified findings or (2) that the sentence imposed is contrary to law.
{¶ 64} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum * * * sentences.” State v. King, 2013-Ohio-2021, 992
N.E.2d 491, ¶ 45 (2d Dist.). However, a trial court must consider the statutory criteria that
apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.
State v. Leopard, 194 Ohio App. 3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.),
citing State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 65} Although statutory maximum sentences do not require any of the findings
specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found it appropriate “for
appellate courts to review those sentences that are imposed solely after consideration of
the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to
the sentencing court. That is, an appellate court may vacate or modify any sentence that
is not clearly and convincingly contrary to law only if the appellate court finds by clear and
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convincing evidence that the record does not support the sentence.” Marcum at ¶ 23.
{¶ 66} Before imposing consecutive sentences, a trial court must make the findings
required by R.C. 2929.14(C)(4). Specifically, a trial court must determine that: (1)
consecutive service is necessary to protect the public from future crime or to punish the
offender; (2) consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public; and (3) at least
one of the following findings is satisfied:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶ 67} Prior to sentencing Moore, the trial court reviewed sentencing memoranda
and heard arguments from counsel. Moore declined to make any statement on his own
behalf. A.D. and her father made short victim-impact statements. (Tr. at 813-816.) The
trial court reviewed Moore’s criminal history and recited only those offenses it found
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“notable,” including child endangering, receiving stolen property, possession of drug
paraphernalia, domestic violence, felony theft, criminal damaging, another domestic
violence, criminal non-support, obstructing official business, and a third domestic
violence. The trial court also noted that Moore had served two prior prison terms. Defense
counsel did not dispute this criminal history. (Id. at 817-818.)
{¶ 68} The trial court proceeded to indicate that it had considered the statutory
principles and purposes of sentencing as well as the statutory seriousness and recidivism
factors. (Id. at 819.) It then provided the following explanation for its sentencing decision:
The Court further finds that after considering the factors set forth in
O.R.C. 2929.12 a prison term is consistent with the purposes and principles
of sentencing set forth in 2929.11 and the Defendant is not amenable to
available community control sanction[s].
The Court further finds that a combination of community control
sanctions would demean the seriousness of the Defendant’s conduct and
its impact on the victim; and that a prison sentence is commensurate with
the seriousness of Defendant’s conduct and its impact on the victim; and
that a prison sentence does not place an unnecessary burden on state or
governmental resources.
The Court further finds that consecutive sentences are necessary to
protect the public from future crime or to punish the offender; and that
consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger that the offender poses to the public;
and at least two of the multiple offenses were committed as part of one or
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more courses of conduct and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct;
and the offender’s conduct and history of criminal conduct demonstrate that
consecutive sentences are necessary to protect the public from future crime
by the offender.
Specific findings: The Court notes that the Defendant has multiple
prior felony convictions in his history, including a felony of violence; and
multiple violent misdemeanor convictions, including convictions of
Endangering Children and Domestic Violence. Moreover, in this instance
the Court finds the Defendant raped a child of less than 13 years of age and
committed multiple offenses, to wit, Gross Sexual Imposition in violation of
O.R.C. 2907.05(A)(4), multiple violations of Rape in violation of O.R.C.
2907.02(A)(1)(B) and Rape in violation of O.R.C. 2907.02(A)(1). The
evidence reveals that the Defendant committed the most repugnant,
hedonistic sexual acts forced upon a child who was under the age of 13
during many of these acts. It is the Court’s judgment that upon review of the
evidence and exhibits that the facts justify the finding of consecutive
sentencing.
Furthermore, the Defendant possesses [sic] a direct and imminent
threat to the public with no realistic probability of rehabilitation. The
evidence in this case proved unequivocally that Anthony Moore is an
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extreme threat to the innocence and safety of children who are in his
presence. Immediately upon taking residence with [M.D.] and her children
Defendant began grooming [the] 11 year old victim hereafter known as A.D.
for abuse. He subjected her to a deliberate and repetitive pattern of gross
sexual imposition that quickly escalated to a regular pattern of rape. He was
a constant predatory presence in her life to the point that she could not even
enjoy a night’s sleep without the fear and dread of Defendant sneaking into
her room to abuse and defile her while robbing her of her innocence and
the safety of her home and family. These heinous crimes cannot be
minimized and will not go unpunished. It is the Court’s intention and
responsibility to ensure that Anthony Moore never again be alone in the
presence of any child.
(Id. at 821-824.)
{¶ 69} With regard to the trial court’s imposition of consecutive sentences, Moore
acknowledges in his ninth assignment of error that the requisite statutory findings were
made. He argues only that the record does not support those findings. His entire
substantive argument is as follows:
In the case sub judice, the trial court’s imposition of consecutive
maximum sentences was a “trial tax.” The trial court’s imposition of
consecutive sentences is also an improper message for any defendant not
to take a case to jury trial and lose. In this case, appellee made no plea
offers. Appellee was not required to do so. Given the state’s sentencing
position and the trial court’s sentencing, why wouldn’t anyone not take a
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case to a jury trial.
According to appellant’s indictment, appellant is thirty-seven (37)
years of age. The trial court did not request a presentence report. Appellant
has a criminal history, but the trial court and this appellate court have seen
much worse. There were no prior sex offense convictions. A sentence far
less than 108 years would accomplish the same after considering the
factors in R.C. 2929.12 and the purposes and principles of sentencing set
[forth] in R.C. 2929.11. Appellant is not Moses. A sentence of 108 years to
life is akin to a death sentence.
Lastly, the trial court put great emphasis in its belief that appellant
imposed a great threat to all children while imposing the 108 year sentence.
The trial court apparently forgot that it was also imposing duties on appellant
as a Tier III sex offender which would protect children.
(Appellant’s brief at 21-22.)
{¶ 70} The foregoing argument fails to establish that the record clearly and
convincingly does not support consecutive sentences. As for the “trial tax” issue, Moore
cites absolutely nothing suggesting that the trial court imposed consecutive sentences to
punish him for taking his case to trial. He correctly points out that his decision to do so
was reasonable given that the State declined to make any plea offer. We see no evidence
that the trial court punished him for not pleading guilty as charged without any
concessions. Therefore, we find no grounds for a “trial tax” argument. Nor do we see any
basis for an argument that the trial court improperly sent a message to other defendants
not to take their cases to trial.
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{¶ 71} As for Moore’s criminal history, the trial court reasonably considered it.
Although his criminal history is not the worst we have seen, it is significant. It appears to
us, however, that the trial court’s consecutive-sentencing decision was driven largely by
what Moore did to A.D. over a period of years. She testified that he sexually abused her
well before she was 13 years old. The abuse, which included acts of rape, occurred
“almost every day” when she lived on Lowell Road. (Tr. at 68.) After she moved to
Atkinson Drive, the abuse occurred “every couple nights.” (Id.) Based on A.D.’s testimony,
the trial court could have inferred that Moore engaged in hundreds of sex acts with her.
He committed some of the acts while A.D.’s mother was in the shower or asleep in the
same bed with A.D. and Moore.
{¶ 72} Given the brazen nature of Moore’s conduct over an extended period of
time, the trial court reasonably concluded that he posed a “direct and imminent threat to
the public with no realistic probability of rehabilitation” and that he should “never again be
alone in the presence of any child.” Contrary to Moore’s argument, his aggregate
minimum 108-year sentence is not “akin to a death sentence.” Rather, it is a sentence
that assures he will remain in prison for the remainder of his life. The record does not
clearly and convincingly fail to support the trial court’s findings.
{¶ 73} Finally, we are unpersuaded by Moore’s argument that designating him a
Tier III sex offender adequately would protect the public. Recidivism by a sex offender
can occur despite sex-offender registration requirements. In light of the reckless and bold
nature of Moore’s acts, the trial court reasonably could have feared that designating him
a Tier III sex offender would not adequately protect the public. Moore’s ninth assignment
of error is overruled.
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{¶ 74} In his tenth assignment of error, Moore challenges the individual maximum
sentences he received. He does not suggest that any of those sentences are contrary to
law. In essence, his argument is that the record clearly and convincingly does not support
maximum sentences on any counts and that minimum sentences would suffice. His entire
argument is as follows:
Appellant’s arguments for this assignment of error as for the previous
assignment of error overlap. A minimum sentence on each count would
protect the public from future crimes by appellant and punish appellant
using the minimum sanctions that the court determines accomplishes those
purposes without imposing an unnecessary burden on state or local
government resources.
Appellant is thirty-seven (37) years of age. He has some criminal
history. Appellant has a supportive family. The trial court did not have the
benefit of a presentence investigation report.
(Appellant’s brief at 23.)
{¶ 75} Upon review, we find Moore’s argument to be unpersuasive. For essentially
the same reasons that the trial court did not err in imposing consecutive sentences, it did
not err in imposing statutory maximum sentences. In light of Moore’s criminal history and
the facts and circumstances of his offenses against A.D., we do not find that the record
clearly and convincingly fails to support his individual maximum sentences. The tenth
assignment of error is overruled.
{¶ 76} In his eleventh assignment of error, Moore alleges cruel and unusual
punishment under the Eighth Amendment to the U.S. Constitution based on the maximum
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sentences he received. He argues that each of the individual sentences was grossly
disproportionate to his conduct with regard to each offense. In support, he asserts that he
did not cause physical harm to A.D., that A.D. did not report any major mental- or
emotional-health issues when she spoke at sentencing, and that he is not aware of any
victim-impact statements.
{¶ 77} Upon review, we find Moore’s allegation of cruel and unusual punishment
to be unpersuasive. “ ‘[A]s a general rule, a sentence that falls within the terms of a valid
statute cannot amount to a cruel and unusual punishment.’ ” State v. Hairston, 118 Ohio
St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21, quoting McDougle v. Maxwell, 1 Ohio
St.2d 68, 69, 203 N.E.2d 334 (1964). “[W]e are bound to give substantial deference to the
General Assembly, which has established a specific range of punishment for every
offense[.]” (Citation omitted.) Id. at ¶ 24.
{¶ 78} Here each of Moore’s individual sentences falls within the range authorized
by Ohio law. In addition, we concluded in our resolution of his tenth assignment of error
that his individual maximum sentences are not clearly and convincingly unsupported by
the record. In light of these facts, we are unpersuaded that the maximum sentences rise
to the level of cruel and unusual punishment. We disagree with Moore’s assertion that the
maximum sentences are grossly disproportionate to his conduct in this case. In reaching
this conclusion, we note that proportionality review under the Eighth Amendment does
not apply to his aggregate sentence. Rather, for cruel-and-unusual-punishment purposes,
proportionality review applies only to individual sentences. State v. Hand, 2d Dist. Clark
No. 2016-CA-51, 2017-Ohio-7340, ¶ 15-16, citing Hairston at ¶ 14, 20. Gross
disproportionality exists under the Eighth Amendment when an individual sentence is
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conscience shocking to a reasonable person and to a community’s sense of justice. Id.
We do not find Moore’s sentence to be conscience-shocking. The eleventh assignment
of error is overruled.
{¶ 79} Having overruled each of Moore’s assignments of error, we affirm the
judgment of the Greene County Common Pleas Court.
.............
DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
Nathaniel R. Luken
David R. Miles
Hon. Michael A. Buckwalter