State v. Cook , 2020 Ohio 3411 ( 2020 )

[Cite as State v. Cook, 2020-Ohio-3411.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-19-26
v.
CHRISTOPHER G. COOK, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2017 CR 0249
Judgment Affirmed
Date of Decision: June 22, 2020
APPEARANCES:
Alison Boggs for Appellant
Melissa A. Chase for Appellee
Case No. 14-19-26
PRESTON, J.
{¶1} Defendant-appellant, Christopher G. Cook (“Cook”), appeals the July
3, 2019 judgment of sentence of the Union County Court of Common Pleas. For
the reasons that follow, we affirm.
{¶2} In December 2014, Cook’s son, C.C., was staying with Cook and
Cook’s mother, Patricia Cook (“Patricia”), at Patricia’s house in Union County.
Cook and C.C.’s mother, Amanda Cook (“Amanda”), had divorced three years
earlier, and C.C. was staying with Cook and Patricia to celebrate the Christmas
holiday. When C.C. was returned to Amanda on Christmas Eve, he appeared upset.
At that time, C.C. told Amanda that he did not want to see Cook anymore because
he believed that Cook was dealing drugs.
{¶3} One month later, in January 2015, C.C. revealed additional information
to Amanda about Cook. C.C. told Amanda that Cook had touched him
inappropriately. Amanda was also told that Cook paid two women to have sexual
intercourse with C.C. The next day, C.C. attempted to jump out of a moving vehicle,
prompting Amanda to take C.C. to the emergency room at Memorial Hospital in
Marysville, Ohio. There, C.C. told a physician assistant that he was hearing voices
and that the voices told him to hurt himself by running into traffic. C.C. also
disclosed that Cook had forced him to have sex with two different women. Due to
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concerns about C.C.’s suicidal ideations and auditory hallucinations, C.C. was
transferred to a specialized mental health facility in Zanesville, Ohio.
{¶4} C.C. was released after a brief stay at the Zanesville facility. Because
C.C. had disclosed sexual abuse to Amanda and to the medical staff at Memorial
Hospital, he was then taken to the Child Assessment Center at Nationwide
Children’s Hospital (“CAC”) for evaluation and treatment. During an interview at
the CAC, C.C. disclosed numerous instances of sexual abuse. He disclosed that,
beginning in the fall of 2014, two women, whom he identified as Jessica and Jackie,
touched his penis on several occasions. C.C. also stated that Cook made him touch
the women’s breasts and vaginas. According to C.C., these incidents culminated
over the course of a weekend in December 2014, when he was forced by Cook to
have sexual intercourse with both women. C.C. also disclosed that Cook once
touched his penis after he got out of the shower. Finally, C.C. stated that Cook had
shown him pornographic videos and that Cook had threatened to kill him and his
family if he told anybody about the abuse.
{¶5} On November 21, 2017, the Union County Grand Jury indicted Cook
on nine counts: Counts One and Two of disseminating matter harmful to juveniles
in violation of R.C. 2907.31(A)(3), (F), fourth-degree felonies; Counts Three, Five,
and Six of rape in violation of R.C. 2907.02(A)(1)(b), (B), first-degree felonies;
Counts Four, Seven, and Eight of gross sexual imposition in violation of R.C.
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2907.05(A)(4), (C)(2), third-degree felonies; and Count Nine of intimidation of an
attorney, victim, or witness in a criminal case in violation of R.C. 2921.04(B)(1),
(D), a third-degree felony. (Doc. No. 1). On November 29, 2017, Cook appeared
for arraignment and pleaded not guilty to the counts of the indictment. (Doc. No.
6).
{¶6} On June 5, 2018, Cook filed a notice of alibi. (Doc. No. 42). In his
notice of alibi, Cook claimed that he “was at the home of, or in the presence of”
Patricia from December 19-24, 2014—the time period specified in the original
indictment during which Counts One through Six and Count Nine were allegedly
committed. (Id.).
{¶7} On May 13, 2019, the State entered a nolle prosequi with respect to
Count Two of the indictment. (Doc. No. 87). That same day, the trial court
dismissed Count Two without prejudice. (Doc. No. 88).
{¶8} A jury trial commenced on May 13, 2019. Cook twice moved for a
judgment of acquittal under Crim.R. 29; the trial court denied Cook’s motion on
both occasions. (May 14, 2019 Tr. at 151, 161); (May 15, 2019 Tr. at 89). Before
the matter was submitted to the jury, the trial court amended the indictment to reflect
that Count One occurred “in a continuing course of criminal conduct in Union
County, Ohio, Franklin County, Ohio, and Hardin County, Ohio” and that Counts
Five and Six occurred “in a continuing course of criminal conduct in Union County,
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Ohio and Hardin County, Ohio.” (Doc. No. 98). In addition, with respect to all
counts of the indictment, the trial court amended the date ranges of the offenses to
reflect that the offenses allegedly took place between September 9, 2014 and
December 25, 2014. (Id.). On May 15, 2019, the jury found Cook guilty of Counts
One, Three, Four, Five, Six, and Nine of the amended indictment. (Doc. Nos. 90,
91, 92, 93, 94, 97). However, the jury found Cook not guilty of Counts Seven and
Eight of the amended indictment. (Doc. Nos. 95, 96).
{¶9} A sentencing hearing was held on July 3, 2019. (Doc. No. 104). The
trial court sentenced Cook as follows: 12 months in prison on Count One, 25 years
to life in prison on Count Three, 48 months in prison on Count Four, 25 years to life
in prison on Count Five, 25 years to life in prison on Count Six, and 24 months in
prison on Count Nine. (Id.). The trial court ordered that the prison sentences for
Counts One, Three, Four, Five, Six, and Nine all be served consecutively for an
aggregate term of 82 years to life in prison. (Id.).
{¶10} Cook filed his notice of appeal on August 2, 2019. (Doc. No. 112).
Cook raises seven assignments of error for our review. For the sake of clarity, we
begin by addressing Cook’s second assignment of error, followed by his third
assignment of error. Then, we consider Cook’s first and seventh assignments of
error together before turning to Cook’s fourth assignment of error. Finally, we
conclude by separately addressing Cook’s fifth and sixth assignments of error.
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Assignment of Error No. II
The trial court erred when it permitted hearsay evidence
throughout the trial when the declarant was available to testify
and did in fact testify.
{¶11} In his second assignment of error, Cook argues that the trial court erred
by admitting various hearsay statements at his trial. Cook focuses on hearsay
contained in the testimony of Dustin Ford (“Ford”), a physician assistant who was
working in the emergency room at Memorial Hospital in Marysville, Jennifer
Sherfield (“Sherfield”), a forensic interviewer and mental health advocate at the
CAC, and Dr. Megan Letson (“Dr. Letson”), a doctor working at the CAC. (See
Appellant’s Brief at 5-7). He also points to hearsay contained in the video recording
of C.C.’s forensic interview with Sherfield at the CAC, and he arguably takes issue
with hearsay contained in the CAC written report and in C.C.’s medical records
from Memorial Hospital. (See id. at 5-7). In all instances, C.C. is the person who
made the out-of-court statements to which Cook now objects. Cook argues that
none of C.C.’s statements is admissible under Evid.R. 803(4), the exception to the
rule against hearsay allowing for the admission of statements made for purposes of
medical diagnosis or treatment. (Id. at 6-7).
{¶12} “Ordinarily, we review a trial court’s hearsay rulings for an abuse of
discretion.” State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, ¶ 97, citing
State v. Hymore, 9 Ohio St. 2d 122, 128 (1967). See HSBC Bank U.S.A., Natl. Assn.
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v. Gill, 1st Dist. Hamilton No. C-180404, 2019-Ohio-2814, ¶ 6-10 (documenting a
split between courts of appeals concerning the proper standard of review to apply
when reviewing the admission of hearsay but concluding that McKelton and other
Supreme Court decisions dictate abuse-of-discretion review). An abuse of
discretion is more than a mere error in judgment; it suggests that a decision is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St. 2d 151, 157-
158 (1980).
{¶13} Hearsay is defined as a “statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C). Generally, hearsay is not admissible
unless an exception applies. Evid.R. 802. “‘Evid.R. 803 is one such rule which
permits the admission of certain hearsay statements even though the declarant is
available as a witness.’” State v. Bender, 3d Dist. Union No. 14-19-22, 2020-Ohio-
722, ¶ 12, quoting Dayton v. Combs, 94 Ohio App. 3d 291, 300 (2d Dist.1993).
{¶14} As relevant to this case, Evid.R. 803(4) excepts from the hearsay rule
“[s]tatements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the inception
or general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.” “‘The hearsay rules except statements made
for the purpose of medical diagnosis or treatment due to the inherent reliability
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underlying the nature of those statements.’” Bender at ¶ 13, quoting State v. Lykins,
4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 94 and citing State v. Muttart,
116 Ohio St. 3d 5, 2007-Ohio-5267, ¶ 39. “‘[S]tatements made for the purpose of
medical diagnosis and treatment are considered reliable because “‘facts reliable
enough to be relied on in reaching a diagnosis have sufficient trustworthiness to
satisfy hearsay concerns.’”’” Id., quoting Lykins at ¶ 95, quoting State v. Dever, 64
Ohio St. 3d 401, 411 (1992), quoting McCormick, Evidence, Section 250 (4th
Ed.1992), and citing Muttart at ¶ 41.
{¶15} Initially, we must address Cook’s argument that C.C.’s out-of-court
statements are not admissible under Evid.R. 803(4) because the people to whom
C.C. made the statements were not “given the complete medical history of [C.C.],”
which would have revealed “the mental illness that [C.C.] experienced since he was
a young child.” (Appellant’s Brief at 7). Cook notes that, in addition to
experiencing mental health issues since he was young, C.C. was treated at an
inpatient mental health facility in the months before he made the statements and just
days before his interview at the CAC. (Id. at 1). He also notes that C.C. was on
“some form of medication” and that he was suffering from hallucinations and “other
delusionary/psychosis instances” around the time that he made the statements. (Id.).
Cook thus suggests that even if C.C. made these statements for purposes of medical
diagnosis or treatment and the statements were reasonably pertinent to his diagnosis
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or treatment, these statements should not have been admitted because, due to C.C.’s
psychological issues, his statements are not entitled to the presumption of reliability
typically accorded to statements made for purposes of medical diagnosis or
treatment. (See id. at 6-7).
{¶16} We disagree. “‘Where the totality of the circumstances fail to
demonstrate a lack of reliability or trustworthiness, * * * statements should be
admitted if they fall within the hearsay exception, [and] the credibility of the
statements may then be evaluated by the trier of fact.’” State v. Diaz, 8th Dist.
Cuyahoga No. 103878, 2016-Ohio-5523, ¶ 45, quoting In re D.L., 8th Dist.
Cuyahoga No. 84643, 2005-Ohio-2320, ¶ 28. In addition, “a court may admit a
child’s statements under Evid.R. 803(4) if they are made for purposes of medical
diagnosis or treatment provided there is no evidence to cast doubt upon the child’s
motivation for making the statements.” In re D.L. at ¶ 29, citing State v. Wilson,
4th Dist. Adams No. 99CA672, 2000 WL 228242 (Feb. 18, 2000). In this case,
although C.C. was suffering from hallucinations and suicidal ideations in the days
and weeks leading up to the making of his statements, there is no indication in the
record that C.C.’s hallucinations or ideations influenced his statements. Sherfield
testified that during her interview with C.C., she did not observe anything that
suggested that he was actively experiencing hallucinations. (May 13, 2019 Tr., Vol.
II, at 214). Furthermore, Dr. Letson testified that C.C. denied any suicidal ideation
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on the day of his interview. (Id. at 231). Though Ford’s testimony suggests that
C.C. may have been hearing voices when he was evaluated by Ford, there is nothing
in Ford’s testimony clearly indicating that C.C.’s statements to Ford were the
product of his auditory hallucinations.
{¶17} Moreover, there is nothing in the record casting doubt on C.C.’s
motivations to make these statements. Amanda denied that she pressured C.C. to
make allegations against Cook, and there is nothing in the record suggesting that
Amanda or C.C. had a reason to fabricate allegations against Cook. (See May 13,
2019 Tr., Vol. II, at 160). Specifically, the State presented evidence establishing
that Amanda had full custody of C.C., that Cook did not have any court-ordered
parenting time with C.C., and that Cook had not petitioned the court to change the
custody arrangement. (Id. at 136-137, 160); (May 14, 2019 Tr. at 116); (State’s Ex.
1). Therefore, the circumstances fail to demonstrate a lack of reliability and
trustworthiness. Provided that C.C.’s statements satisfy the requirements of Evid.R.
803(4), or another exception to the hearsay rule, C.C.’s statements are properly
admissible notwithstanding the fact that he was experiencing psychological
difficulties around the time the statements were made. C.C.’s mental state at the
time he made the statements was but another factor to be considered by the trier of
fact in assessing the credibility of C.C.’s out-of-court statements. See Evid.R.
806(A) (“When a hearsay statement * * * has been admitted in evidence, the
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credibility of the declarant may be attacked * * * by any evidence that would be
admissible for those purposes if declarant had testified as a witness.”); Evid.R.
616(B) (“A defect of capacity, ability, or opportunity to observe, remember, or
relate may be shown to impeach the witness either by examination of the witness or
by extrinsic evidence.”).
{¶18} We now consider whether the trial court erred by permitting the
admission of C.C.’s out-of-court statements, beginning with the trial court’s
decision to allow Ford to testify about what C.C. disclosed during the examination
at Memorial Hospital. Ford testified that on January 16, 2015, he was working as a
physician assistant in the emergency department of Memorial Hospital in
Marysville. (May 13, 2019 Tr., Vol. II, at 178). He stated that he was responsible
for performing the initial evaluation of C.C. and collecting C.C.’s medical history
when C.C. appeared for treatment. (Id. at 178-181). Ford testified that the medical
history is a “very important” part of a patient’s medical diagnosis and treatment.
(Id. at 180). Ford stated that C.C.’s “first chief complaint was suicidal ideation
which * * * means that they have the intent to cause harm specifically to
themselves.” (Id. at 181). He testified that he had to make sure that there would
not “be anything else that could be causing [C.C.] to have suicidal ideation,
including infection or some type of illness that could cause harm to their mental
status.” (Id.). Ford stated that when he asked C.C. about his desire to harm himself,
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C.C. said that “he had auditory hallucinations * * * and they were telling him to run
out in the road to kill himself.” (Id.). Ford then testified, over Cook’s objection,
that after C.C.’s initial statement about experiencing auditory hallucinations, C.C.
“mentioned that * * * he was being forced to have sexual intercourse with females
and touching their breasts and vagina” and that his father was forcing him to do so.
(Id. at 181-185). Ford stated that based on his initial evaluation of C.C., along with
lab tests and a physical exam, “nothing * * * seemed to be pointing towards a
specific reversible cause [for C.C.’s suicidal ideations] and, therefore, mental health
evaluation by Maryhaven then was consulted.” (Id. at 186). Finally, he testified
that Maryhaven “came in and evaluated [C.C.] and * * * deemed that [C.C.] was fit
for transfer to a higher facility to have inpatient psych evaluation” and that C.C. was
subsequently transferred to a hospital in Zanesville for further treatment. (Id. at
187-188).
{¶19} We conclude that the trial court did not abuse its discretion by allowing
Ford to testify regarding C.C.’s statements because C.C.’s statements were made
for purposes of medical diagnosis or treatment and were pertinent to C.C.’s
diagnosis or treatment. Amanda brought C.C. to the emergency room of Memorial
Hospital after he threatened to harm himself, and he was interviewed by Ford, a
medical professional, in a hospital setting. Ford posed questions to C.C. that were
designed to help Ford and other medical professionals identify the cause of C.C.’s
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suicidal ideations. See State v. Geboy, 145 Ohio App. 3d 706, 720-721 (3d
Dist.2001) (“[Evid.R. 803(4)] has been interpreted as to include diagnosis and
treatment of psychological injuries as well as physical ailments.”). In response to
Ford’s questions, C.C. revealed that he was experiencing auditory hallucinations,
and apparently without prompting by Ford, C.C. disclosed that Cook had been
making him engage in sex acts with multiple women. There is no indication that
Ford questioned C.C. in a leading or suggestive manner or that Ford began the
evaluation with the goal of eliciting a disclosure of sexual abuse. See Muttart, 116
Ohio St. 3d 5, 2007-Ohio-5267, at ¶ 49. Furthermore, although there is no evidence
in the record regarding C.C.’s perception of Ford’s evaluation, we believe that it is
reasonable to conclude that C.C. likely knew that he was speaking to Ford for
purposes of medical treatment and that C.C. was aware of the need to be forthright
with Ford. See id.; State v. Jennings, 2d Dist. Clark No. 2002 CA 78, 2003-Ohio-
4429, ¶ 18 (“[W]e believe that it is reasonable to conclude that a ten-year-old girl
being examined by a doctor in a pediatrician’s office assumes that she is there for
the purposes of medical treatment.”). Thus, considering the particular
circumstances of C.C.’s disclosure to Ford, we conclude that C.C.’s statements to
Ford were made for purposes of medical diagnosis or treatment.
{¶20} In addition, C.C.’s statements were pertinent to diagnosing the cause
of his suicidal ideations. As Ford’s testimony suggests, there are many reasons that
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someone might be experiencing suicidal ideations, and a disclosure of sexual abuse
can be relevant to determining the exact cause of suicidal ideations. For example,
the disclosure of sexual abuse could help medical practitioners determine whether
sexual abuse exacerbated an underlying psychological condition, which condition
caused the person to contemplate self-harm, or whether the person’s suicidal
ideations are a response to the distress of sexual abuse otherwise unrelated to an
underlying or preexisting psychological condition. Therefore, C.C.’s disclosure of
sexual abuse was reasonably pertinent to diagnosing the cause of his suicidal
ideations. Because C.C.’s statements to Ford satisfy the requirements of Evid.R.
803(4), we conclude that the trial court did not abuse its discretion by allowing Ford
to testify regarding the statements C.C. made during the initial evaluation at
Memorial Hospital.
{¶21} Having concluded that the trial court did not abuse its discretion by
admitting the hearsay contained in Ford’s testimony, we next consider whether the
trial court erred by admitting any hearsay contained in Sherfield’s testimony, in Dr.
Letson’s testimony, in the video recording of Sherfield’s interview with C.C. at the
CAC, in the CAC written report, or in C.C.’s medical records from Memorial
Hospital. At the outset, we note that during the course of their testimonies, Sherfield
and Dr. Letson did not testify concerning anything C.C. said to them about the
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alleged sexual abuse. Accordingly, there are no hearsay issues with respect to
Sherfield’s testimony or Dr. Letson’s testimony.
{¶22} Furthermore, we note that Cook failed to object when the video
recording of Sherfield’s interview with C.C. at the CAC was played for the jury,
and he failed to object when the State moved to admit the video recording of the
CAC interview, the CAC written report, and C.C.’s medical records from Memorial
Hospital.
{¶23} Because Cook failed to object to the admission of the hearsay
embedded in the aforementioned documentary evidence, we review for plain error.
State v. Obermiller, 147 Ohio St. 3d 175, 2016-Ohio-1594, ¶ 72, citing State v.
Fitzpatrick, 102 Ohio St. 3d 321, 2004-Ohio-3167, ¶ 66. We recognize plain error
“‘with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.’” State v. Landrum, 53 Ohio St. 3d 107, 111 (1990),
quoting State v. Long, 53 Ohio St. 2d 91 (1978), paragraph three of the syllabus. For
plain error to apply, the trial court must have deviated from a legal rule, the error
must have been an obvious defect in the proceeding, and the error must have
affected a substantial right. State v. Barnes, 94 Ohio St. 3d 21, 27 (2002). Under
the plain error standard, the appellant must demonstrate that the outcome of his trial
would clearly have been different but for the trial court’s errors. State v. Waddell,
75 Ohio St. 3d 163, 166 (1996), citing State v. Moreland, 50 Ohio St. 3d 58 (1990).
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{¶24} We first consider whether the admission of the statements C.C. made
to Sherfield during his CAC interview and to Dr. Letson rises to the level of plain
error. At the beginning of her interview with C.C., Sherfield explained to C.C. that
it was her job to talk to children “about their bodies” and “whether or not something
has happened to their bodies,” and she told C.C. that he would be seeing a doctor
after the interview. (State’s Ex. 4). She also explained to C.C. that it was acceptable
if he did not know the answer to a question she asked and that she did not “want
[C.C.] to make anything up, and [she did not] want [C.C.] to guess.” (Id.). C.C.
then asked Sherfield whether he would “have to tell [her] everything that [he] told
[his] mom.” (Id.). Sherfield said that “it depend[ed],” and she asked C.C. what he
had told Amanda. (Id.). At that point, C.C. said that his “dad ha[d] been doing
messed up things,” and C.C. disclosed that he had been “raped by some girl named
Jessica” and “raped by a girl named Jackie.” (Id.). C.C. specified that Cook was
his father. (Id.).
{¶25} C.C. then began to detail various instances of sexual abuse. He
disclosed that Cook “made [him] touch Jessica’s boobs and her vagina” and that this
was what he was referring to when he said that Jessica raped him. (Id.). C.C. stated
that “it happened quite a few times.” (Id.). Sherfield then asked C.C. to tell her
“everything about the last time that something happened with Jessica.” (Id.). C.C.
said that he was “raped in December” during a weekend approximately two weeks
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before Christmas and that the incident took place at Jessica’s house in her bedroom.
(Id.). He stated that he was in the bedroom with Jessica and Cook when it happened.
(Id.). C.C. said that Cook “wanted [him] to have sex with [Jessica]” and that Cook
“bribed” him and Jessica. (Id.). According to C.C., Cook promised to pay Jessica
$300. (Id.). C.C. said that Jessica “told [him] to lay down with her. And then she
took off all her clothes. And then she started unbuttoning [his] pants. And [he] said
stop.” (Id.). He stated that after he told Jessica to stop, Cook offered to pay him
$50 if he had sex with her. (Id.). C.C. said that he told Cook “maybe” and that
Jessica “kept on unbuttoning [his] pants while [he] was rebuttoning them.” (Id.).
C.C. stated that Cook then offered him $100 and that he finally agreed. (Id.).
{¶26} According to C.C., after he accepted Cook’s offer of $100, Jessica
“started humping [him].” (State’s Ex. 4). Jessica “was on the top, and [he] was on
the bottom.” (Id.). C.C. described his use of the word “humping” as signifying that
Jessica “was going up/down on our privates.” (Id.). He stated that his clothes were
off during this encounter and that while Jessica was going “up/down on [his]
privates,” his “wiener” was touching the inside of her vagina. (Id.). C.C. said that
while this was happening with Jessica, Cook was recording the incident with his
phone. (Id.). According to C.C., he “kept on telling her to stop. And [Cook] kept
on saying ‘Keep up.’” (Id.).
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{¶27} C.C. said that on the same day as the encounter with Jessica, Cook also
touched his “wiener.” (Id.). C.C. stated that after the incident with Jessica, he was
taking a shower at Patricia’s house. (Id.). He said that when he got out of the
shower, Cook “was standing in the doorway” and “grabbed [his] wiener and started
rubbing it.” (Id.).
{¶28} C.C. then discussed incidents involving Jackie. C.C. disclosed that
Jackie “raped [him] in December, [on] the same weekend” as Jessica. (State’s Ex.
4). He stated that “the day after Jessica touched [him] and raped [him], Jackie pulled
off her clothes in front of [him] and started humping [him] with [his] clothes on.”
(Id.). According to C.C., Jackie then undressed him and had sex with him. (Id.).
He said that this encounter took place in Cook’s bedroom at Patricia’s house. (Id.).
C.C. stated that Jackie was on top, that he was on bottom, and that her “boobs [were]
to [his] chest and her vagina [was] to [his] wiener.” (Id.). He said that his “wiener”
was inside of Jackie’s vagina. (Id.). C.C. stated that Cook was not present during
this incident and that he did not know whether Cook had promised to pay Jackie.
(Id.).
{¶29} C.C. then disclosed that sometime prior to Christmas Eve, Cook had
offered to pay him $300 to touch Jackie’s breasts and vagina. (Id.). He said that
this encounter happened at Jackie’s house. (Id.). He stated that Cook made him
“rub [Jackie’s] vagina all around” with his hand and that Cook made him “do things
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to [Jackie’s] boobs.” (Id.). C.C. said that he touched both the outside and the inside
of Jackie’s vagina and that he “just kind of rubbed [Jackie’s] nipple.” (Id.). He also
said that Cook was present during this incident and that he “was recording it with
his phone.” (Id.). In addition, C.C. stated that he was “very worried” about the
incidents that occurred with Cook, Jessica, and Jackie because Cook “said he would
kill [C.C.’s] whole family if [C.C.] told anybody about that.” (Id.).
{¶30} Finally, C.C. stated that Cook showed him a “porn video” on his
phone. (Id.). He said that the video depicted one woman “shoving” objects “up her
butt,” including a ball and a glass object that looked “like a missile,” which
“somehow she squeezed * * * out through her butt.” (Id.). C.C. said that another
woman and a man then entered the frame and that the man “started having anal sex”
with one of the women. (Id.). He also said that the man “shoved his wiener in a
girl’s mouth.” (Id.).
{¶31} The CAC written report contains the notes Sherfield made during her
interview with C.C. The statements in Sherfield’s report that qualify as hearsay are,
for the most part, identical to the statements C.C. made in the recorded interview.
(See State’s Exs. 4, 6). The CAC written report also contains Dr. Letson’s
comments, along with the comments of her fellow, Dr. Melissa Jones (“Dr. Jones”).
(State’s Ex. 6). To the extent that these comments address C.C.’s disclosures, they
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recount what C.C. said during the forensic interview or cover the same subject
matter. (See id.).
{¶32} We conclude that the trial court did not commit plain error by
permitting the admission of the recorded interview or the CAC written report
because the hearsay contained within these items of evidence is admissible under
Evid.R. 803(4). First, with respect to C.C.’s statements to Drs. Letson and Jones,
C.C. made these statements to doctors in the context of a medical examination in a
hospital setting. There is no indication that they posed suggestive or leading
questions to C.C. or that C.C. did not understand the importance of telling them the
truth. Thus, given the facts of this case, C.C.’s statements to Drs. Letson and Jones
are admissible under Evid.R. 803(4) for much the same reason as the hearsay in
Ford’s testimony is admissible under Evid.R. 803(4).
{¶33} In addition, the statements C.C. made to Sherfield during his forensic
interview are admissible under Evid.R. 803(4). In her testimony, Sherfield
explained the purposes of her interview with C.C. She testified that, in addition to
sexual abuse, the interview is used to “screen all kids for * * * different forms of
maltreatment,” including domestic violence and exposure to pornography, because
sexual abuse is frequently accompanied by other forms of abuse. (May 13, 2019
Tr., Vol. II, at 200). Sherfield stated that the forensic interview “guides [the child’s]
medical exam and * * * any mental health recommendations” and that the
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information collected from the forensic interview is provided to a physician. (Id.).
She also testified that the forensic interview “completely guides the medical exam”
because “it might highlight the need for sexually transmitted infection testing” or
“the need or recommendation for mental health counseling and services.” (Id. at
207). Furthermore, at the beginning of the interview, C.C. was informed that he
would be speaking to a doctor after the interview. (State’s Ex. 4). Therefore,
Sherfield’s forensic interview with C.C. was conducted, at least in part, for purposes
of medical diagnosis or treatment, and C.C. was made aware that the interview had
some connection to medical care.
{¶34} Moreover, C.C.’s disclosures during the interview were reasonably
pertinent to his diagnosis or treatment.
[T]he Supreme Court has “classified information regarding the
identity of the perpetrator, the type of abuse alleged, the identification
of the areas where the child had been touched and the body parts of
the perpetrator that had touched her, as well as the time frame of the
abuse, as statements for diagnosis and treatment because that
information allowed the doctor or nurse to determine whether to test
the child for sexually transmitted diseases, and to identify any trauma
or injury sustained during the alleged abuse.”
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State v. C.C.B., 10th Dist. Franklin No. 18AP-782, 2019-Ohio-3631, ¶ 36, quoting
In re C.S., 10th Dist. Franklin No. 11AP-667, 2012-Ohio-2988, ¶ 14, citing State v.
Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742, ¶ 32, 38. Concerning the identity of
the perpetrator, the identification of the perpetrator is pertinent to diagnosis or
treatment because the identity of the perpetrator is “particularly relevant” to
determining whether the child victim could have continued exposure to the
perpetrator and whether the child might have contracted a sexually transmitted
disease. Dever, 64 Ohio St. 3d at 413, fn. 8. The identity of the perpetrator is also
relevant to determining the psychological effects on the child. Id. Finally, to the
extent that exposure to pornography can be considered a form of sexual abuse,
statements relating to a child’s exposure to pornography can be relevant to the
child’s treatment or diagnosis. See State v. Watts, 10th Dist. Franklin No. 15AP-
951, 2016-Ohio-5386, ¶ 23.
{¶35} Here, C.C.’s disclosures included the identities of his abusers,
explanations of the extent of Cook’s involvement in the abuse, identifications of the
parts of his body that were touched, identifications of the parts of his abusers’ bodies
that he touched, the number of times he was abused, the locations where he was
abused, the approximate time frame in which he was abused, the fact that he had
been exposed to pornography, and the fact that he had been recorded engaging in
sex acts. All of these disclosures were pertinent to diagnosing C.C., providing him
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with appropriate physical and psychological treatment, and ensuring his future
safety. Accordingly, C.C.’s statements during the forensic interview were made for
purposes of medical diagnosis or treatment and were reasonably pertinent to his
diagnosis or treatment. Therefore, C.C.’s statements are admissible under Evid.R.
803(4), and the trial court did not plainly err by permitting their admission.
{¶36} Finally, we conclude that the trial court did not commit plain error by
allowing the admission of C.C.’s medical records from Memorial Hospital. In these
records, Ford documented what C.C. told him during the course of the initial
evaluation. (See State’s Ex. 8). Ford’s testimony covered these same statements.
Because we concluded that the trial court did not abuse its discretion by allowing
Ford to testify to what C.C. told him during the initial evaluation, we cannot
conclude that the trial court plainly erred by permitting the admission of a document
containing substantially the same statements.
{¶37} Cook’s second assignment of error is overruled.
Assignment of Error No. III
The trial court erred when it would not allow a lay witness opinion
testimony.
{¶38} In his third assignment of error, Cook argues that the trial court abused
its discretion by refusing to permit Patricia to offer her opinion on whether she
believed C.C.’s allegations. He contends that Evid.R. 701 permits opinion
testimony by lay witnesses under certain circumstances and that Patricia was
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qualified to give opinion testimony under Evid.R. 701 because “[t]he foundation
had been laid throughout her testimony as to her relationship and observations of
C.C. and [Cook] * * * and she could properly form an opinion ‘on the fact in issue.’”
(Appellant’s Brief at 8).
{¶39} “An abuse of discretion standard applies to a trial court’s decision to
admit testimony under Evid.R. 701.” State v. Smith, 10th Dist. Franklin No. 16AP-
21, 2017-Ohio-9283, ¶ 45, citing Urbana ex rel. Newlin v. Downing, 43 Ohio St. 3d
109, 113 (1989) and State v. Griffin, 10th Dist. Franklin No. 10AP-902, 2011-Ohio-
4250, ¶ 58. As noted earlier, an abuse of discretion suggests that a decision is
unreasonable, arbitrary, or unconscionable. Adams, 62 Ohio St. 2d at 157-158.
{¶40} Evid.R. 701 provides that “[i]f the witness is not testifying as an
expert, the witness’ testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.” In this case, Cook’s trial counsel asked Patricia
the following two questions: (1) “Based on what you know in your relationships
with both [Cook and C.C.], do you believe these accusations?” and (2) “Do you
have any reason to believe these things actually happened?” (May 14, 2019 Tr. at
177). The State objected to both of these questions, and the trial court sustained
both of the State’s objections. (Id.). Cook argues that the trial court erred by
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sustaining the State’s objections because Patricia’s opinion about the truth of C.C.’s
allegations was based on her perceptions of Cook and C.C. around the time the
events allegedly occurred and helpful to the determination of whether the events
alleged by C.C. actually happened—“the fact in issue.” (Appellant’s Brief at 8).
{¶41} We conclude that the trial court did not abuse its discretion by
sustaining the State’s objections and preventing Patricia from answering Cook’s
trial counsel’s questions. Regardless of how Cook describes his trial counsel’s
questions or the opinions he expected Patricia to express, it is evident that his trial
counsel’s questions were designed to elicit Patricia’s opinion about the credibility
of C.C., who had earlier testified against Cook, and accordingly, Cook’s trial
counsel’s questions were improper. “‘In our system of justice it is the fact finder,
not the so-called expert or lay witnesses, who bears the burden of assessing the
credibility and veracity of witnesses.’” Smith at ¶ 46, quoting State v. Eastham, 39
Ohio St. 3d 307, 312 (1988) (Brown, J., concurring). “Opinion testimony regarding
another witness’s credibility ‘infringe[s] upon the role of the fact finder, who is
charged with making determinations of veracity and credibility.’” Id., quoting
Eastham at 312 (Brown, J., concurring). “Thus, ‘the opinion of a witness as to
whether another witness is being truthful is inadmissible.’” Id., quoting State v.
Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 38, citing State v. Miller,
2d Dist. Montgomery No. 18102, 2001 WL 62793 (Jan. 26, 2001). It is possible
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that Patricia could have been questioned regarding C.C.’s general character for
truthfulness or untruthfulness in an effort to undermine his credibility. See Evid.R.
608(A) (“The credibility of a witness may be attacked * * * by evidence in the form
of opinion * * *, but subject to these limitations: (1) the evidence may refer only to
character for truthfulness or untruthfulness * * *.”). However, Cook’s trial
counsel’s questions concerned C.C.’s credibility with respect to his particular
allegations against Cook, rather than his general character for truthfulness, and the
questions were thus improper. See State v. Pawlak, 8th Dist. Cuyahoga No. 99555,
2014-Ohio-2175, ¶ 115 (“While Evid.R. 608(A) permits testimony regarding a
witness’s general character or reputation for truthfulness, the rule prohibits
testimony regarding a witness’s truthfulness on a particular occasion.”). Therefore,
the trial court did not abuse its discretion by sustaining the State’s objections and
precluding Patricia from opining about whether she believed C.C.’s allegations. See
State v. Sanchez-Garza, 12th Dist. Butler No. CA2016-02-036, 2017-Ohio-1234, ¶
44-48 (concluding that the State’s line of questioning, in which a witness was asked
whether she believed what the victim had told her shortly after the alleged incident,
was an improper attempt to bolster the victim’s credibility); Pawlak at ¶ 111-125
(question by juror, which queried whether witness “believe[d] the allegations of
inappropriate activity with [her] boyfriend [were] true,” was improper because the
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witness’s response “required her to give an opinion about [the defendant’s] guilt and
the credibility of the victims as they pertain to the allegations”).
{¶42} Cook’s third assignment of error is overruled.
Assignment of Error No. I
The jury lost its way when reviewing the evidence, resulting in a
verdict that is against the manifest weight of the evidence and
sufficiency of the evidence.
Assignment of Error No. VII
The trial court erred when it overruled appellant’s motion for a
Criminal Rule 29 acquittal.
{¶43} In his first and seventh assignments of error, Cook argues that because
the State failed to present evidence sufficient to establish his guilt on each of the six
counts for which he was convicted, the trial court erred by denying his Crim.R. 29
motion for acquittal, and he contends that his convictions are otherwise based on
insufficient evidence. In addition, in his first assignment of error, Cook argues that
his convictions are against the manifest weight of the evidence. Specifically, Cook
argues that because C.C. did not provide reliable, consistent testimony at trial and
because the State’s only other evidence against him was inadmissible hearsay, his
convictions are against the manifest weight of the evidence. (See Appellant’s Brief
at 4).
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{¶44} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St. 3d 380, 389
(1997). Accordingly, we address each legal concept individually.
{¶45} “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.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St. 3d 89 (1997).
Consequently, “[t]he 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.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33, citing State v. Williams, 197 Ohio App. 3d 505, 2011-Ohio-6267, ¶ 25
(1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380,
¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or
weight of the evidence.”), citing Thompkins at 386. Because the purpose of a
Crim.R. 29 motion for acquittal “is to test the sufficiency of the evidence presented
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at trial,” we “review[] a denial of a Crim.R. 29 motion for judgment of acquittal
using the same standard that is used to review a sufficiency of the evidence claim.”
State v. Willis, 12th Dist. Butler No. CA2009-10-270, 2010-Ohio-4404, ¶ 9, citing
State v. Terry, 12th Dist. Fayette No. CA2001-07-012, 2002-Ohio-4378, ¶ 9, citing
State v. Williams, 74 Ohio St. 3d 569, 576 (1996); State v. Lightner, 3d Dist. Hardin
No. 6-08-11, 2009-Ohio-544, ¶ 11, citing State v. Carter, 72 Ohio St. 3d 545, 553
(1995).
{¶46} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St. 2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
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Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, ¶ 119.
{¶47} In this case, Cook was convicted of six offenses. With respect to three
of these offenses—disseminating matter harmful to juveniles, gross sexual
imposition, and intimidation of an attorney, victim, or witness in a criminal case—
Cook was convicted as the principal offender.
{¶48} The offense of disseminating matter harmful to juveniles is codified in
R.C. 2907.31, which provides: “No person, with knowledge of its character or
content, shall recklessly * * *[,] [w]hile in the physical proximity of the juvenile *
* *, allow any juvenile * * * to review or peruse any material or view any live
performance that is harmful to juveniles.” R.C. 2907.31(A)(3). “If the material or
performance involved is obscene and * * * the juvenile who is allowed to review,
peruse, or view it is under thirteen years of age, [disseminating matter harmful to
juveniles] is a felony of the fourth degree.” R.C. 2907.31(F). “Harmful to
juveniles” means
that quality of any material or performance describing or representing
nudity, sexual conduct, sexual excitement, or sado-masochistic abuse
in any form to which:
(1) The material or performance, when considered as a whole,
appeals to the prurient interest of juveniles in sex[;]
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(2) The material or performance is patently offensive to prevailing
standards in the adult community as a whole with respect to what is
suitable for juveniles[; and]
(3) The material or performance, when considered as a whole, lacks
serious literary, artistic, political, and scientific values for juveniles.
R.C. 2907.01(E).
{¶49} The offense of gross sexual imposition is codified in R.C. 2907.05,
which provides, in relevant part, that “[n]o person shall have sexual contact with
another, not the spouse of the offender * * * 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.” R.C. 2907.05(A)(4). “Sexual contact” is defined in
R.C. 2907.01(B) as meaning “any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or gratifying either
person.” “Whether touching is done for the purpose of sexual gratification is a
‘question of fact to be inferred from the type, nature, and circumstances surrounding
the contact.’” State v. Todd, 3d Dist. Hardin No. 6-16-11, 2017-Ohio-4355, ¶ 12,
quoting In re K.C., 1st Dist. Hamilton No. C-140307, 2015-Ohio-1613, ¶ 32.
{¶50} The offense of intimidation of an attorney, victim, or witness in a
criminal case is codified in R.C. 2921.04, which provides, in relevant part: “No
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person, knowingly and * * * by unlawful threat of harm to any person * * * or by
unlawful threat to commit any offense or calumny against any person, shall attempt
to influence, intimidate, or hinder * * * [t]he victim of a crime * * * in the filing or
prosecution of criminal charges * * *.” R.C. 2921.04(B)(1). “The term ‘threat’
represents a range of statements or conduct intended to impart a feeling of
apprehension in the victim, whether of bodily harm, property destruction, or lawful
harm, such as exposing the victim’s own misconduct.” State v. Cress, 112 Ohio
St.3d 72, 2006-Ohio-6501, ¶ 39. “‘Intimidation’ by definition involves the creation
of fear in a victim, and the very nature of a threat is the creation of fear of negative
consequences for the purpose of influencing behavior.” Id. at ¶ 40. However, R.C.
2921.04(B)(1) does not proscribe intimidation by mere “threats”; it proscribes
intimidation by means of “unlawful threats.” Thus, the statutory language in R.C.
2921.04(B)(1) proscribing intimidation by “unlawful threats” is satisfied “only
when the very making of the threat is itself unlawful because it violates established
criminal or civil law.” Id. at ¶ 42. Furthermore, R.C. 2921.04(B)(1) does not require
that a victim actually be influenced, intimidated, or hindered by the defendant’s
unlawful threats; “the defendant need only try to create fear about or try to influence
or hinder the filing or prosecution of criminal charges.” (Emphasis sic.) State v.
Thompson, 7th Dist. Columbiana No. 13 CO 20, 2014-Ohio-1225, ¶ 16, citing R.C.
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2921.04(B). “There is no requirement that the victim feel intimidated.” Id., citing
State v. Williams, 8th Dist. Cuyahoga No. 94261, 2011-Ohio-591, ¶ 14.
{¶51} With respect to the other three counts for which Cook was convicted,
Cook was convicted of three counts of complicity to the rapes of C.C. The offense
of rape is codified in R.C. 2907.02, which provides, in relevant part, that “[n]o
person shall engage in sexual conduct with another who is not the spouse of 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” and that “[n]o person
shall engage in sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force.” R.C. 2907.02(A)(1)(b), (2).
As relevant to this case, “sexual conduct” includes “vaginal intercourse between a
male and female” and, “without privilege to do so, the insertion, however slight, of
any part of the body * * * into the vaginal * * * opening of another.” R.C.
2907.01(A). “Penetration, however slight, is sufficient to complete vaginal * * *
intercourse.” Id.
{¶52} R.C. 2923.03, Ohio’s complicity statute, provides, in relevant part,
that “[n]o person, acting with the kind of culpability required for the commission of
an offense, shall * * * [a]id or abet another in committing the offense.” R.C.
2923.03(A)(2).
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To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the evidence must show that the
defendant supported, assisted, encouraged, cooperated with, advised,
or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may
be inferred from the circumstances surrounding the crime.
State v. Johnson, 93 Ohio St. 3d 240 (2001), syllabus. “‘“Evidence of aiding and
abetting may be shown by either direct or circumstantial evidence, and participation
in criminal intent may be inferred from presence, companionship, and conduct
before and after the offense is committed.”’” State v. Wright, 3d Dist. Hardin No.
6-15-14, 2016-Ohio-5465, ¶ 9, quoting State v. Rowe, 3d Dist. Seneca No. 13-10-
14, 2011-Ohio-5739, ¶ 32, quoting State v. Gragg, 173 Ohio App. 3d 270, 2007-
Ohio-4731, ¶ 21 (12th Dist.).
{¶53} The offenses of which Cook was convicted involve, to some extent,
three different degrees of culpable mental state—purpose, knowledge, and
recklessness. “A person acts purposely when it is the person’s specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against conduct
of a certain nature, regardless of what the offender intends to accomplish thereby, it
is the offender’s specific intention to engage in conduct of that nature.” R.C.
2901.22(A). “A person acts knowingly, regardless of purpose, when the person is
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aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B). “A person has knowledge of
circumstances when the person is aware that such circumstances probably exist.”
Id. “When knowledge of the existence of a particular fact is an element of an
offense, such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a conscious
purpose to avoid learning the fact.” Id. “A person acts recklessly when, with
heedless indifference to the consequences, the person disregards a substantial and
unjustifiable risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature.” R.C. 2901.22(C). “A person is reckless with respect
to circumstances when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that such circumstances are likely to
exist.” Id.
{¶54} In addition to the evidence referenced in our analysis of Cook’s second
assignment of error, the following evidence was presented at Cook’s trial. Amanda
was the State’s first witness. Amanda first identified State’s Exhibit 2 as a certified
copy of C.C.’s birth certificate. (May 13, 2019 Tr., Vol. II, at 138-139); (State’s
Ex. 2). C.C.’s birth certificate shows that he was ten years old in September 2014
through December 2014. (State’s Ex. 2). Amanda testified that although Cook did
not have court-ordered rights to parenting time with C.C., she entered into an
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agreement with Cook to allow him to visit with C.C. as long as C.C. wanted to visit.
(May 13, 2019 Tr., Vol. II, at 139-140). She stated that C.C. visited with Cook
almost every weekend in 2014 and that the initial visits appeared to be normal. (Id.
at 140-141). However, she noted that the visits began to taper off in the fall of 2014
when C.C. wanted to go over less often or Cook was unable to take C.C. (Id. at
143).
{¶55} She testified that she first became aware of potential problems
between C.C. and Cook when, on Christmas Eve, C.C. stated that he did not want
to have further visits with Cook because he believed that Cook was a drug dealer.
(Id. at 144). Amanda testified that she then reached out to law enforcement and an
investigation was opened. (Id. at 145-146). According to Amanda, C.C. next
disclosed problems with Cook in January 2015 when she was driving him to receive
infusion treatments for his juvenile arthritis. (Id. at 146-148). She testified that
C.C. said that Cook had touched him and paid two women to have sex with him.
(Id. at 146-148). Amanda stated that she responded to C.C.’s comments by again
reaching out to law enforcement and by scheduling the evaluation at the CAC. (Id.
at 148-149). Moreover, Amanda testified that, the day after he disclosed the alleged
sex abuse, C.C. tried to jump out of a moving vehicle. (Id. at 149-150). She stated
that she took him to Memorial Hospital for evaluation, where he was then
transferred to the Zanesville facility. (Id. at 149-150).
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{¶56} On cross-examination, Amanda was questioned about whether she
told Cook on Christmas Eve that she was cutting off visitation with C.C. (Id. at
156-157). She testified that she was frustrated that Cook dropped off C.C. later than
requested, but she could not remember whether she told Cook when he dropped off
C.C. that there would be no more visitation. (Id. at 158). She further denied that
she encouraged C.C. to make allegations against Cook in order to terminate Cook’s
visitation. (Id. at 160).
{¶57} Concerning C.C.’s mental health, Amanda testified that C.C. was
diagnosed with oppositional defiant disorder at the age of three, but that C.C. did
not experience auditory hallucinations at that age. (May 13, 2019 Tr., Vol. II, at
161). Amanda also stated that C.C. was admitted to the Zanesville mental health
facility on two other occasions: once in the beginning of September 2014 and once
at the end of January 2015 following the interview at the CAC. (Id. at 162-165).
She testified that C.C. was placed on medication after being discharged from the
facility in September and that he did not respond well to the medication. (Id. at 162-
163). She said that C.C. was placed on different medications beginning in
December 2014 but that he was taken off medication completely when he was first
admitted into the Zanesville facility in January 2015. (Id. at 167). Amanda also
testified that when C.C. was first admitted into the facility in January 2015, he said
that he was hearing voices and being chased by a tall black man. (Id. at 163).
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Finally, she testified that C.C. was readmitted to the facility at the end of January
2015 because he was still threatening to harm himself and others. (Id. at 164-165).
{¶58} In addition, Lieutenant Michael Justice (“Lieutenant Justice”) of the
Union County Sheriff’s Office testified that he was present during the execution of
a search warrant at Patricia’s house, which was where Cook was staying in January
2015. (May 13, 2019 Tr., Vol. II, at 233). He testified that one of the items seized
during the search was a cell phone, which was later determined to belong to Cook.
(Id. at 236-237). Lieutenant Justice stated that he extracted and reviewed video files
that were stored on the SD card in Cook’s cell phone. (Id. at 241-242). He also
testified that two prescription pill bottles were recovered from Patricia’s house. (Id.
at 243-244). He stated that the prescriptions were in the name of “Jacqueline
Tackett” and that the bottles said they were filled on November 8, 2014 and
December 31, 2014. (Id. at 243-244); (State’s Exs. 16, 17). Furthermore,
Lieutenant Justice testified that, during the search, he located a Crown Royal bag
filled with drug paraphernalia. (May 13, 2019 Tr., Vol. II, at 244-245); (State’s Ex.
18). Lieutenant Justice stated that he did not know when the prescription bottles
arrived at Patricia’s house or who brought them there and that he could not
determine with certainty who owned the Crown Royal bag. (May 13, 2019 Tr., Vol.
II, at 249-250, 253-254).
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{¶59} C.C. was the State’s next witness. C.C. first testified about the alleged
incidents with Jessica. He testified that, in 2014, he and Cook would go to Jessica’s
apartment in Columbus at least once a month and that Patricia would sometimes
accompany them. (May 14, 2019 Tr. at 16). C.C. stated that the third time Cook
brought him inside of Jessica’s apartment, Cook offered to pay him and Jessica
money if he and Jessica did “[s]exual stuff.” (Id. at 17). He stated that the incident
happened in Jessica’s bedroom and that he tried to resist Jessica, but that they
eventually started having sex. (Id. at 18). C.C. testified that his “wiener” was inside
of Jessica’s vagina and that Jessica was on top of him going “[u]p and down.” (Id.
at 18-19). However, C.C. could not remember whether he was wearing clothes
during the incident or what Cook was doing. (Id. at 18-19). C.C. recalled that this
encounter happened in November or December of 2014. (Id. at 20).
{¶60} C.C. then testified that Cook “touched [him] when [he] was getting
out of the shower” at Patricia’s house. (Id. at 20-21). He said that Cook touched
him for “[t]en seconds, maybe,” that he did not remember if Cook said anything to
him during the incident, and that after Cook “let go,” nothing else happened. (Id. at
22).
{¶61} C.C. also testified about the series of incidents with Jackie. He stated
that Jackie lived in an apartment in Kenton in the fall and winter of 2014 and that
Cook took him to Jackie’s apartment a number of times, though he could not
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remember how often he went to Jackie’s. (Id. at 23-24). According to C.C., Patricia
may have gone to Jackie’s apartment with him and Cook on one occasion. (Id. at
24). C.C. testified that “[t]hree or four things” happened with Jackie. (Id.). After
describing an earlier incident with Jackie, C.C. stated that Jackie was offered money
to have sex with him by Cook. (Id. at 25). C.C. testified that they then went to one
of the upstairs bedrooms in Jackie’s apartment, where he and Jackie had sex. (Id.
at 26). He stated that his “wiener” was inside of Jackie’s vagina, that Jackie was on
top of him, and that he believed his clothes were on, except for his pants which were
pulled down to his knees. (Id. at 26-27). C.C. reiterated that Cook offered Jackie
money, but he could not remember whether Cook offered him money to have sex
with Jackie. (Id. at 27). He stated that this incident happened in August or
September of 2014. (Id.). C.C. testified that after this encounter, nothing else ever
happened with Jackie. (Id. at 27-28).
{¶62} In addition, C.C. stated that he was shown a video by Cook on Cook’s
cell phone depicting a “woman shoving a ball in her butt hole.” (May 14, 2019 Tr.
at 28). He testified that the video also showed the woman “us[ing] a glass dildo”
and “shov[ing] it up her butt hole.” (Id.). C.C. stated that he did not remember how
long the video was or whether he watched it from beginning to end. (Id.).
{¶63} Finally, C.C. testified that Cook threatened to kill him and his entire
family. (Id. at 29). The following exchange then took place:
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[The State]: And when did he tell you this?
[C.C.]: Since I was like four.
[The State]: Since you were four years old?
[C.C.]: Yeah, but I think then he was joking. Something about
like when he was saying it changed when I started like
nine.
[The State]: And what changed? Can you tell us?
[C.C.]: He just seemed like he was more serious.
[The State]: In 2014, what, if anything, did he say to you about
telling?
[C.C.]: He said he’d kill my entire family.
[The State]: Did you believe him?
[C.C.]: Yes.
(Id.).
{¶64} On cross-examination, C.C. testified that though he told Amanda on
Christmas Eve that he thought Cook was a drug dealer, he did not tell anybody,
including Amanda, Patricia, or law enforcement officers, about the abuse until
January 2015. (Id. at 36, 55-56). He stated that although he went back to Patricia’s
house after he had sex with Jessica, he did not tell Patricia, and he explained that he
did not tell Patricia because of Cook’s threats. (Id. at 40-41). Similarly, C.C.
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testified that after he had sex with Jackie at Jackie’s apartment, he went back to
Patricia’s house but did not tell Patricia, or anyone else, about what had happened.
(Id. at 45-46).
{¶65} Additionally, C.C. stated that Jessica and Jackie were present when
Cook threatened to “kill everyone” and that Cook made the threats “right after [they]
got done having sex.” (May 14, 2019 Tr. at 47). He confirmed that Cook had been
telling him things like that since he was four years old but that when Cook
threatened him in 2014, he believed Cook was being sincere. (Id. at 48). C.C.
acknowledged that he did not tell Amanda or Patricia about the threats. (Id.).
{¶66} C.C. was then questioned about whether he remembered Amanda
telling Cook that he was not going to have any further visitation with C.C. C.C.
testified that he remembered coming back from Jessica’s with Cook and Patricia on
Christmas Eve 2014. (Id. at 50). He also remembered that when he left Cook and
Patricia to go with Amanda, Amanda was upset because Cook had not dropped off
C.C. earlier in the day. (Id. at 51). However, he could not recall whether Amanda
told Cook anything about cutting off visitations. (Id.).
{¶67} Regarding his history of mental health issues, C.C. testified that he
first began hearing voices at age four, but that he did not tell Amanda or anyone
else. (Id. at 56-57). He stated that he was hearing voices in September 2014 when
he was first admitted into the mental health facility in Zanesville, and he
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remembered threatening to harm himself and trying to jump out of Amanda’s car.
(Id. at 57-58). He also testified that he started taking medication when he was
released from the facility and that the medication helped at first. (Id. at 59). C.C.
testified that he did not remember going back to the facility in January 2015 and
that he did not remember the hallucinations he reported at the time. (Id. at 60).
{¶68} Furthermore, C.C. acknowledged that he continued to call and visit
with Cook even after the abuse started and that he called or texted Cook at least
once after Christmas Eve 2014. (May 14, 2019 Tr. at 65-66). However, C.C. could
not remember whether he called Cook to request visitation. (Id. at 66).
{¶69} Finally, C.C. testified that he remembered going to the CAC for the
interview, but that he did not remember the interview itself. (Id. at 61). He said
that he viewed the video recording of the interview a couple days before trial, though
he still did not remember the interview. (Id. at 62). When Cook’s trial counsel
asked him whether “the only thing [he] remember[ed] * * * is what [he had] seen
on the tape of the interview,” C.C. responded that he “remember[ed] some of it just
not specific days and when it was.” (Id. at 68). He admitted that some of his
testimony might not be completely accurate. (Id.).
{¶70} On redirect examination, C.C. testified that although he was incapable
of remembering all of the details of the alleged abuse, he had done “very well” in
telling the truth in his testimony. (Id. at 70). He also reiterated that he did not tell
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Patricia about the abuse because he believed Cook’s threat extended to her. (Id.at
71).
{¶71} The State’s next witness, Cindy Kuhr (“Kuhr”), a Victim’s Specialist
Consultant for the Bureau of Criminal Investigation, testified as an expert on the
subject of child sexual abuse. (May 14, 2019 Tr. at 73, 78). Kuhr first testified
about the phenomenon of delayed reporting of sexual abuse. (Id. at 78-81). She
stated that “the majority of the time there is a delay in disclosure” of sexual abuse
and that there can be a number of causes for delayed reporting, such as the existence
of a close relationship between the abuser and the victim or the victim’s fear of
physical retaliation by the abuser. (Id. at 79-80). Kuhr testified that many children
who delay reporting sexual abuse also disclose sexual abuse in increments instead
of disclosing all instances of abuse at once. (Id. at 81-82). In addition, Kuhr stated
that although children have been known to fabricate allegations of sexual abuse, she
had not personally dealt with false accusations. (Id. at 88). She noted that when
dealing with allegations of sexual abuse, investigators explore whether the child has
any motive to make a false accusation. (Id.).
{¶72} Kuhr also testified about some of the behavioral indicators of child
sexual abuse. She stated that age-inappropriate information about sexual activity
might indicate that a child has been sexually abused. (Id. at 84). She also noted that
sexually-abused children often act out physically and sexually toward others, that
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they engage in “[h]igh risk behaviors where [they are] putting themselves in
danger,” and that they can display “suicidal gestures.” (Id.).
{¶73} In addition, Kuhr testified about her experience with children who
testify in court about sexual abuse. She stated that it is “usually very, very difficult
for them to testify in the first place” and that “testifying about traumatic or * * *
embarrassing information for them is very difficult * * * [and] they may shut down.”
(Id. at 87). She testified that some children “will just give some of the basic
information” while others are “able to testify * * * clearly from beginning to end as
they did during their disclosure.” (Id. at 87-88). Finally, elsewhere in her testimony,
Kuhr testified that trauma affects memory and that the trauma of an event “can
impact the memory and make individuals * * * kind of forget certain things around
the time of a traumatic experience and only remember the important details of
something or * * * sensory things * * *.” (Id. at 86-87).
{¶74} On cross-examination, Kuhr acknowledged that she never spoke to
C.C., that she was not aware of the details of C.C.’s mental health history, and that
she was not present when C.C. testified. (May 14, 2019 Tr. at 90-92). She clarified
that she was offering “educational witness testimony” about child sex abuse cases
generally rather than testimony about C.C.’s case specifically. (Id. at 91-92).
{¶75} The State’s final witness was Deputy Kelly Nawman (“Deputy
Nawman”) of the Union County Sheriff’s Office. (Id. at 103). Deputy Nawman
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was the lead investigator on C.C.’s case. (Id.). She testified that the investigation
began as an investigation into Cook’s potential drug abuse and dissemination of
pornography but that the investigation evolved into one about child sexual abuse
following C.C.’s disclosures to Amanda in January 2015. (Id. at 105-108).
{¶76} Deputy Nawman testified that she interviewed Cook during the course
of the investigation. She stated that Cook denied showing pornographic images to
C.C. but that Cook admitted that C.C. once viewed an image depicting a woman’s
breasts when a text message containing the image was sent to Cook’s phone while
C.C. was using the phone to play a game. (Id. at 113). Deputy Nawman also
testified that Cook told her that C.C. had been to Jessica’s house with him and
Patricia and that C.C. had only been inside of Jessica’s house long enough to use
the restroom. (Id. at 114). She stated that Cook said that C.C. had also been to
Jackie’s house once with Cook and Patricia and once with Cook and Cook’s other
children. (Id. at 113). According to Deputy Nawman, Cook also told her that Jackie
had been to Patricia’s house on one or two occasions, most recently in June or July
of 2014. (Id. at 114). With respect to C.C.’s allegations, Deputy Nawman testified
that Cook said that Amanda “must have put [C.C.] up to it because he had filed for
full custody.” (Id. at 116). However, she stated that she was able to determine that
Cook “had not filed for anything.” (Id.).
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{¶77} Deputy Nawman also testified about video files discovered on Cook’s
cell phone. Deputy Nawman identified State’s Exhibit 14 as a DVD containing a
true and accurate copy of a pornographic video retrieved from the SD card in Cook’s
cell phone. (Id. at 118-119, 122); (State’s Ex. 14). State’s Exhibit 14 depicts sex
acts consistent with those that C.C. described in his interview at the CAC and in his
trial testimony. (State’s Ex. 14).
{¶78} On cross-examination, Deputy Nawman testified that, in January
2015, she did not talk to C.C. about the alleged sexual abuse because he was
admitted to the mental health facility in Zanesville. (May 14, 2019 Tr. at 126-127).
She also stated that C.C. never gave a written statement. (Id. at 127). Furthermore,
Deputy Nawman testified that Jessica and Jackie both denied C.C.’s accusations
when they were interviewed. (Id. at 129-130). Finally, she stated that although
other pornographic videos were discovered on Cook’s cell phone, no videos were
recovered depicting C.C. engaging in sex acts with Jessica, Jackie, or any other
person. (Id. at 131).
{¶79} Patricia was Cook’s only witness. Patricia testified that Cook was
living with her during 2014 and that C.C. would visit often between September 2014
and December 2014. (Id. at 163-164). She stated that she had a close relationship
with C.C. and that he would tell her when things were bothering him. (Id. at 165).
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Patricia testified that she did not notice any change in C.C.’s behavior around
Christmas 2014. (Id. at 171-172).
{¶80} Additionally, Patricia stated that she had been to Jessica’s house with
Cook and C.C., but she denied that she ever went to Hardin County with Cook and
C.C. in 2014. (Id. at 166, 168). Concerning whether Jessica or Jackie ever visited
her house in Union County, Patricia testified that Jessica never visited her house but
that Jackie came to her house twice in the summer of 2014. (Id. at 169). She stated
that Jackie never spent the night at her house and that she was not aware of any
times that Jackie was alone with C.C. (Id. at 170). Patricia testified that she did not
generally allow Cook to have female friends at her house. (Id. at 168-169).
Furthermore, Patricia doubted that Cook snuck women into her house after she went
to bed. (Id. at 170).
{¶81} Patricia also testified about Cook’s access to her car and whether Cook
could have taken C.C. somewhere without her knowledge. She testified that when
C.C. visited her and Cook around Christmas 2014, Cook never left in the car alone
with C.C. (May 14, 2019 Tr. at 168). Patricia stated that she always accompanied
Cook and C.C. during car trips during this period. (Id.). Patricia also testified more
broadly about Cook’s use of her car. She insisted that if Cook “had drove [her] car,
[she] was with him.” (Id. at 164-165). Patricia also stressed that during visitations,
Cook and C.C. never left together in her vehicle without her. (Id. at 166). Finally,
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she testified that she did not believe that Cook ever snuck out of the house with C.C.
and drove around. (Id. at 167).
{¶82} On cross-examination, Patricia reiterated that, in 2014, whenever
Cook left her house, she was with him. (Id. at 178-179). She also confirmed that
she never went to Hardin County with Cook in 2014, that Jackie came to her house
twice during the summer of 2014, and that Jackie never stayed overnight at the
house. (Id. at 179-180). While Patricia testified that none of Jackie’s personal
belongings should have been at her house, she could not explain why State’s
Exhibits 16 and 17, two prescription pill bottles in Jackie’s name, were found in her
house. (Id. at 180, 182-184). She stated that Jackie had only been in the house once
during the summer of 2014 and that she was “positive” that Jackie was not in her
house in November 2014 or December 2014—the months that the prescriptions
were filled. (Id. at 182-184).
{¶83} On redirect examination, Patricia testified that the only time that
Jackie came into her house, Jackie came “[j]ust into the living room and, basically,
in and right back out.” (Id. at 187). She also stated that Cook had not told her about
any other times that Jackie came to the house. (Id.).
{¶84} We begin with Cook’s contention that his convictions are not
supported by sufficient evidence. Initially, we note that under his first and seventh
assignments of error, Cook’s only argument specifically regarding the sufficiency
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of the evidence supporting his convictions is that “the State’s use of impermissible
hearsay fell short of having sufficient evidence to support the convictions.”
(Appellant’s Brief at 4). However, we have already concluded under Cook’s second
assignment of error that the hearsay to which he refers was not admitted in error.
{¶85} Other than this brief argument, the premise of which we have already
rejected, Cook does not actually challenge the sufficiency of the evidence
supporting his convictions. Cook does not make any argument that the State’s
evidence is insufficient to establish any element of any of the offenses for which he
was convicted. Instead, Cook attacks C.C.’s credibility by pointing to
contradictions between C.C.’s testimony and his out-of-court statements and
highlighting C.C.’s inability to remember all of the details of the alleged abuse. (Id.
at 4, 21). These arguments do not challenge the sufficiency of the evidence; rather,
they challenge the weight of the evidence. See In re T.L., 3d Dist. Allen No. 1-15-
24, 2016-Ohio-252, ¶ 24. Nevertheless, regardless of whether Cook properly
challenged the sufficiency of the evidence, we are satisfied that the State produced
evidence sufficient to prove beyond a reasonable doubt each element of each offense
for which Cook was convicted. Accordingly, we conclude that Cook’s convictions
are supported by sufficient evidence and that the trial court did not err by denying
Cook’s Crim.R. 29 motions.
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{¶86} Having concluded that Cook’s convictions are supported by sufficient
evidence, we now determine whether Cook’s convictions are against the manifest
weight of the evidence. As just indicated, Cook’s primary argument is that his
convictions are against the manifest weight of the evidence because C.C.’s
testimony was not credible. Cook claims that C.C.’s testimony should have been
given minimal weight because of inconsistencies between his testimony and the
statements he made during the CAC interview in 2015 and because he could no
longer remember many of the details he disclosed during the CAC interview. We
disagree. While there were discrepancies between C.C.’s testimony and the
statements he made during the CAC interview, “‘“[a] defendant is not entitled to a
reversal on manifest weight grounds merely because inconsistent evidence was
presented at trial.”’” State v. Barrie, 10th Dist. Franklin No. 15AP-848, 2016-Ohio-
5640, ¶ 22, quoting State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-
3322, ¶ 17, quoting State v. Chandler, 10th Dist. Franklin No. 05AP-415, 2006-
Ohio-2070, ¶ 9. “A jury may take into consideration a witness’s conflicting
testimony in determining his or her credibility and the persuasiveness of his or her
account by either discounting or resolving the discrepancies.” Id., citing Jackson at
¶ 17, citing State v. Taylor, 10th Dist. Franklin No. 14AP-254, 2015-Ohio-2490, ¶
34. “‘A jury, as finder of fact, may believe all, part, or none of a witness’s
testimony.’” Id., quoting Taylor at ¶ 34. Likewise, the fact that C.C. was unable to
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remember all of the details he disclosed in 2015 does not automatically render his
testimony unreliable with respect to the details he was able to recall.
{¶87} Here, the State offered evidence by way of Kuhr’s testimony to help
explain why C.C.’s trial testimony might be inconsistent with certain elements of
his earlier disclosures and why C.C. might not be able to recall all of the details he
divulged in 2015. Cook characterizes Kuhr as a “clean-up batter” who “was
permitted to tell the jury that it was okay to conclude that C.C.’s testimony was not
dependable” and that “its inconsistencies are understandable and almost expected.”
(Appellant’s Brief at 4). He claims that with Kuhr’s testimony, the jury could
disregard the issues with C.C.’s testimony and find him credible “because a child
victim of sexual abuse would never make this kind of stuff up.” (Id.).
{¶88} Yet, despite Cook’s objections, we see no issue with Kuhr’s testimony.
In child-sex-abuse cases, expert witnesses like Kuhr routinely testify to matters such
as delayed disclosure of child sexual abuse, recantation of allegations of sexual
abuse, and inconsistent or contradictory recollections of incidents of sexual abuse.
See, e.g., State v. Stowers, 81 Ohio St. 3d 260, 263 (1998) (noting that expert
testimony concerning recantation and delayed disclosure “is permitted to
counterbalance the trier of fact’s natural tendency to assess recantation and delayed
disclosure as weighing against the believability and truthfulness of the witness”).
The jury was aware that Kuhr was testifying about child sexual abuse cases
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generally rather than the specifics of C.C.’s case, and the jury was in a position to
determine whether the phenomena Kuhr described in her testimony applied to
C.C.’s testimony. To the extent that the jury evaluated C.C.’s testimony in light of
Kuhr’s testimony and consequently found C.C. to be credible, we cannot conclude
that the jury clearly lost its way by doing so.
{¶89} Moreover, the State presented evidence other than C.C.’s testimony to
establish Cook’s guilt, most notably the out-of-court statements C.C. made to Ford,
Sherfield, and Drs. Jones and Letson in 2015. Cook suggests throughout his
appellate brief that C.C.’s out-of-court statements are untrustworthy due to the
psychological problems he was experiencing around the time he made the
statements. However, the jury was well aware of the mental issues that C.C. was
suffering from around the time he made the statements, and it could consider these
issues in determining what weight to give to C.C.’s out-of-court statements. On this
record, if the jury gave C.C.’s out-of-court statements decisive weight, we cannot
conclude that it was mistaken to do so.
{¶90} Therefore, having weighed the evidence and all reasonable inferences,
and considering the credibility of the witnesses, we cannot conclude that the jury
lost its way and created such a manifest miscarriage of justice that Cook’s
convictions must be reversed.
{¶91} Cook’s first and seventh assignments of error are overruled.
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Assignment of Error No. IV
The trial court erred when it amended the indictment regarding
substantive issues that are not permitted to be amended by
Criminal Rule 7.
{¶92} In his fourth assignment of error, Cook argues that the trial court erred
by amending the indictment. Cook argues that the amendments were not
permissible under Crim.R. 7 because they affected his substantial rights.
(Appellant’s Brief at 9-10). With respect to the amendments relating to venue, he
contends that he was entitled to a reasonable continuance and a new jury “[s]ince
venue affects a substantial right.” (Id. at 10). He further maintains that he was
prejudiced by the amendments to the dates of the offenses because “[t]he expansion
of the time frames * * * amounted to an ambush to his alibi and the entire
presentation of his case.” (Id. at 11).
{¶93} “Crim.R. 7(D) governs the amendment of indictments.” State v.
Thompson, 9th Dist. Wayne No. 15AP0016, 2016-Ohio-4689, ¶ 12, citing State v.
Bennett, 9th Dist. Lorain No. 10CA009917, 2011-Ohio-6679, ¶ 8. Crim.R. 7(D)
provides:
The court may at any time before, during, or after a trial amend the
indictment, information, complaint, or bill of particulars, in respect to
any defect, imperfection, or omission in form or substance, or of any
variance with the evidence, provided no change is made in the name
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or identity of the crime charged. If any amendment is made to the
substance of the indictment, information, or complaint, or to cure a
variance between the indictment, information, or complaint and the
proof, the defendant is entitled to a discharge of the jury on the
defendant’s motion, if a jury has been impaneled, and to a reasonable
continuance, unless it clearly appears from the whole proceedings that
the defendant has not been misled or prejudiced by the defect or
variance in respect to which the amendment is made, or that the
defendant’s rights will be fully protected by proceeding with the trial,
or by a postponement thereof to a later day with the same or another
jury.
“Crim.R. 7(D) permits most amendments but prohibits amendments that change the
name or identity of the crime charged.” State v. Wilson, 4th Dist. Lawrence No.
18CA15, 2019-Ohio-2754, ¶ 13, citing State v. Pepka, 125 Ohio St. 3d 124, 2010-
Ohio-1045, ¶ 15. “A trial court commits reversible error when it permits an
amendment that changes the name or identity of the offense charged, regardless of
whether the defendant suffered prejudice,” and because it is a matter of law, we
review de novo whether an amendment changes the name or identity of the offense
charged. Id., citing State v. Kittle, 4th Dist. Athens No. 04CA41, 2005-Ohio-3198,
¶ 10-13, citing State v. Smith, 10th Dist. Franklin No. 03AP1157, 2004-Ohio-4786,
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Case No. 14-19-26
¶ 10; State v. Jones, 2d Dist. Montgomery No. 26289, 2015-Ohio-4116, ¶ 125, citing
State v. Frazier, 2d Dist. Clark No. 2008 CA 118, 2010-Ohio-1507, ¶ 22.
{¶94} However, where an amendment does not change the name or identity
of the offense charged, we review a trial court’s decision to allow a Crim.R. 7(D)
amendment for an abuse of discretion. Thompson at ¶ 11, citing State v. Gray, 9th
Dist. Summit No. 27365, 2015-Ohio-1248, ¶ 7 and Frazier at ¶ 23. Nevertheless,
in this case, because Cook failed to object to the amendment of the indictment at
trial, he is limited to a claim of plain error on appeal. See State v. Shockey, 9th Dist.
Summit No. 29170, 2019-Ohio-2417, ¶ 7, citing State v. Guenther, 9th Dist. Lorain
No. 05CA008663, 2006-Ohio-767, ¶ 49.
{¶95} In this case, the amendments changed the indictment’s allegations of
the venue where some of the offenses were allegedly committed and the time frame
during which the offenses were allegedly committed. Generally, amending an
indictment’s allegations of venue or of the date or time of an offense does not change
the name or identity of the crime charged. See Shockey at ¶ 8; State v. Buchanan,
8th Dist. Cuyahoga No. 104500, 2017-Ohio-1361, ¶ 19, 22; State v. Pheanis, 2d
Dist. Montgomery No. 26560, 2015-Ohio-5015, ¶ 24, citing State v. Williams, 53
Ohio App. 3d 1, 5 (10th Dist.1988); State v. Collinsworth, 12th Dist. Brown No.
CA2003-10-012, 2004-Ohio-5902, ¶ 24. Therefore, the amendments in this case
were permissible under Crim.R. 7(D).
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{¶96} Furthermore, the record supports that the amendments were necessary
to conform the indictment to the evidence presented at trial. Although C.C.
consistently maintained that Cook showed him a pornographic video, he did not
testify regarding where he was when he viewed the video and the evidence
supported one of three possible viewing locations: Patricia’s house in Union
County, Jackie’s apartment in Hardin County, and Jessica’s house in Franklin
County. In addition, evidence was presented suggesting that the two rapes allegedly
committed by Jackie occurred either at Jackie’s apartment in Hardin County or at
Patricia’s house in Union County. Finally, C.C.’s testimony and the statements he
made during the CAC interview offered conflicting accounts of the dates on which
the offenses were committed. While the evidence supported that the alleged
offenses occurred no later than Christmas 2014, the evidence also suggested that
some of the incidents could have occurred as early as September. Therefore, the
amendments reflected the evidence presented at trial, and accordingly, we cannot
conclude that the trial court deviated from a legal rule by allowing the amendments.
{¶97} Finally, irrespective of whether the trial court erred by allowing the
amendments, we fail to see how Cook was prejudiced. Cook argues that the
expansion of the time frame in which the offenses were allegedly committed
completely undermined his alibi defense. (Appellant’s Brief at 11). However,
Patricia, Cook’s alibi witness, offered testimony that, in effect, provided Cook with
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an alibi for time periods other than December 19-25, 2014. In addition to testifying
that she was with Cook and C.C. during the entirety of C.C.’s December 2014 visit,
Patricia also testified that whenever C.C. visited Cook in 2014, she would
accompany Cook and C.C. in her car whenever Cook and C.C. left the house.
Further, Patricia testified that she never went to Hardin County with Cook in 2014.
Moreover, Patricia testified that Jessica had never been to her house and that Jackie
had only entered her house once for a short period of time. Patricia also expressed
her belief that Cook never brought women into her house without her knowledge.
Patricia’s testimony, if believed by the jury, almost entirely foreclosed a finding that
the rape offenses, which were alleged to have occurred at either Jackie’s apartment,
Jessica’s house, or Patricia’s house, actually happened as charged in the indictment.
Thus, given Patricia’s testimony, we do not believe that the outcome of the trial
clearly would have been different if the trial court had not permitted the
amendments. Accordingly, we conclude that the trial court did not commit plain
error by allowing the amendments.
{¶98} Cook’s fourth assignment of error is overruled.
Assignment of Error No. V
Appellant was deprived effective assistance of counsel resulting
in appellant not receiving a fair trial.
{¶99} In his fifth assignment of error, Cook argues that he received
ineffective assistance of counsel. Cook sorts his trial counsel’s alleged deficiencies
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into four categories: (1) “failure to challenge expert witness”; (2) “failure to request
expert to testify on behalf of defendant”; (3) “failures to object”; and (4) “failure to
object to improper character evidence.” (Appellant’s Brief at 13-18). Within three
of the categories, Cook identifies at least two different ways in which his trial
counsel allegedly failed to provide effective representation. (Id. at 13-18).
{¶100} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St. 3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052 (1984). In order to show counsel’s conduct was
deficient or unreasonable, the defendant must overcome the presumption that
counsel provided competent representation and must show that counsel’s actions
were not trial strategies prompted by reasonable professional judgment. Strickland
at 689. Counsel is entitled to a strong presumption that all decisions fall within the
wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St. 3d 673,
675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance. State v. Frazier, 61 Ohio St. 3d 247, 255
(1991). Rather, the errors complained of must amount to a substantial violation of
counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-
142 (1989), citing State v. Lytle, 48 Ohio St. 2d 391, 396 (1976).
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{¶101} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
{¶102} We start with the supposed deficiencies of Cook’s trial counsel that
Cook lumps into the “failure to challenge expert witness” category. Cook argues
that his trial counsel acted unreasonably by not attempting to disqualify Kuhr as an
expert witness via pretrial motion. He contends that his trial counsel was “on notice
through discovery that the State intended to call an expert witness who would testify
to the heart of the matter” and that his trial counsel “owed [it to him] * * * to try
and challenge the qualifications of the expert prior to trial * * *.” (Appellant’s Brief
at 13). Cook also claims that his trial counsel was ineffective because he “made no
attempt to challenge [Kuhr’s] information and ultimate qualification” at trial. (Id.).
{¶103} For purposes of this category of purported unprofessional error, we
assume without deciding that Cook’s trial counsel’s failure to challenge Kuhr’s
qualifications was unreasonable under the circumstances. Nevertheless, we
conclude that Cook has not demonstrated that he was prejudiced by his trial
counsel’s failure to question Kuhr’s qualifications because Kuhr was manifestly
qualified to testify as an expert on the subject of child sexual abuse.
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{¶104} Under Evid.R. 702, a witness may be qualified as an expert witness
by reason of her “specialized knowledge, skill, experience, training, or education
regarding the subject matter of the testimony.” Evid.R. 702(B). As the State aptly
notes, the transcript of Cook’s trial contains over four pages of testimony in which
Kuhr detailed her educational background, relevant work history, certifications,
publications, compliance with continuing educational requirements, affiliations
with professional organizations, experience as an instructor, experience as an expert
witness, and experience with victims of child sexual abuse. (May 14, 2019 Tr. at
74-78). Kuhr further testified that she is a subject-matter expert in the areas of child
abuse, child sexual abuse, and child trauma. (Id. at 74-75). Kuhr’s testimony clearly
establishes that, by reason of her education, training, experience, and specialized
knowledge, she is an expert on matters of child sexual abuse. Therefore, because
Cook’s trial counsel would almost certainly have failed to disqualify Kuhr as an
expert on child sexual abuse, we cannot say that there is a reasonable probability
that the result of Cook’s trial would have been different had his trial counsel
challenged Kuhr’s qualifications. See State v. Brinkley, 105 Ohio St. 3d 231, 2005-
Ohio-1507, ¶ 126 (trial counsel did not provide ineffective assistance of counsel, in
part, because “the trial court implicitly accepted [the witness] as an expert and would
have readily rejected any challenge to her qualifications”), citing State v. Baston, 85
Ohio St. 3d 418, 423 (1999).
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{¶105} In his next category, “failure to request expert to testify on behalf of
defendant,” Cook argues that his trial counsel was deficient because he “did not
attempt to seek the assistance of an opposing expert witness in child sexual abuse
cases when it became clear that the State’s case was going to be built around an
expert who would give C.C. a pass for not remembering the facts of the incidents
clearly, or at all.” (Appellant’s Brief at 15-16). He maintains that his trial counsel
had a duty to counter Kuhr’s testimony with expert testimony favorable to his
defense, and he argues that his trial counsel did not seek to obtain favorable expert
testimony, as evidenced by the lack of a pretrial motion “seeking to explore that
avenue.” (Id. at 16).
{¶106} With respect to the supposed deficiencies contained in this category,
we conclude that Cook’s claim of ineffective assistance of counsel fails because he
has not established that his trial counsel’s performance was deficient or
unreasonable under the circumstances. Cook has not demonstrated that his trial
counsel actually failed to attempt to secure an expert witness to testify on his behalf.
He notes that the record does not contain any motion showing that his trial counsel
attempted to procure the services of an opposing expert witness. However, the
absence of any such motion is equally consistent with a finding that Cook’s trial
counsel diligently investigated the possibility of calling an expert witness to counter
Kuhr but found no expert able to offer testimony favorable to Cook or available to
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do so. Moreover, even if Cook’s trial counsel in fact did not try to secure expert
witness testimony, “[t]he decision not to seek expert testimony is often tactical
‘“because such an expert might uncover evidence that further inculpates the
defendant.”’” State v. Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, ¶ 244,
quoting State v. Krzywkowski, 8th Dist. Cuyahoga Nos. 83599, 83842 and 84056,
2004-Ohio-5966, ¶ 22, quoting State v. Glover, 12th Dist. Clermont No. CA2001-
12-102, 2002-Ohio-6392, ¶ 25. See State v. Wilson, 5th Dist. Richland No. 17CA31,
2018-Ohio-396, ¶ 36 (“Trial counsel’s failure to request an expert is a ‘debatable
trial tactic’ * * *.”). In addition, “the Ohio Supreme Court has recognized that
whether to call an expert is a matter of trial strategy, and ‘the failure to call an expert
and instead rely on cross-examination does not constitute ineffective assistance of
counsel.’” State v. Jenkins, 2d Dist. Miami No. 2003-CA-1, 2003-Ohio-4428, ¶ 9,
quoting State v. Nicholas, 66 Ohio St. 3d 431, 436 (1993) and citing State v.
Thompson, 33 Ohio St. 3d 1, 10-11 (1987). Therefore, even if Cook had shown that
his trial counsel actually failed to attempt to hire an expert witness, he would likely
be unable to establish that his trial counsel’s decision to rely solely on cross-
examination of Kuhr was unreasonable or deficient under the circumstances.
{¶107} Finally, because they involve similar issues, we address the “failures
to object” and “failure to object to improper character evidence” categories together.
In the “failures to object” category, Cook takes issue with his trial counsel’s failure
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to object to various hearsay contained in Amanda’s testimony, Ford’s testimony, the
video recording of Sherfield’s interview with C.C. at the CAC, and in the CAC
written report. (Appellant’s Brief at 13-15). In the “failure to object to improper
character evidence” category, Cook focuses on his trial counsel’s failure to object
to statements about his prior incarceration contained in Amanda’s testimony and in
State’s Exhibit 1, failure to object when State’s Exhibit 19 was played for the jury,
and failure to object to the admission of State’s Exhibits 13 and 18. (Id. at 16-18).
{¶108} With respect to many of these instances of allegedly deficient
performance on the part of Cook’s trial counsel, we can reject Cook’s contentions
of ineffective assistance of counsel with little difficulty. First, Cook takes exception
to his trial counsel’s failure to object to two hearsay statements contained in
Amanda’s testimony—statements C.C. made to Amanda about Cook being a drug
dealer and about the sexual abuse allegedly perpetrated by Cook, Jessica, and Jackie.
However, Cook’s trial counsel did object when Amanda testified that C.C. told her
that Cook touched him. (May 13, 2019 Tr., Vol. II, at 146). Although the trial court
ultimately overruled the objection and allowed Amanda to complete her testimony,
the objection led the trial court to give the jury a limiting instruction. (Id. at 147-
148). Thus, concerning this portion of Amanda’s testimony, Cook’s trial counsel
performed exactly as expected of competent counsel.
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{¶109} In addition, we cannot conclude that Cook’s trial counsel was
ineffective with respect to the hearsay contained in Ford’s statement. When Ford
began testifying about C.C.’s disclosures of sexual abuse, Cook’s trial counsel
objected. (Id. at 181). Moreover, we have already concluded that the hearsay
contained in Ford’s testimony is admissible under Evid.R. 803(4). Therefore,
respecting Cook’s trial counsel’s handling of Ford’s testimony, Cook’s trial
counsel’s performance was neither unreasonable nor deficient, and in any event,
Cook cannot show that he suffered prejudice because the trial court properly
admitted the hearsay in Ford’s testimony.
{¶110} Similarly, we cannot conclude that Cook’s trial counsel was deficient
for failing to object to the admission of the sexual-abuse related hearsay contained
in the video recording of C.C.’s interview at the CAC or in the CAC written report.
As with the hearsay statements contained in Ford’s testimony, we have previously
concluded that C.C.’s statements concerning the circumstances of the sexual abuse
and the identities of his abusers are admissible under Evid.R. 803(4). “‘A defense
counsel’s failure to object is not ineffective assistance of counsel if the evidence is
admissible.’ As the Supreme Court of Ohio stated, ‘“Counsel is certainly not
deficient for failing to raise a meritless issue.”’” State v. Carter, 8th Dist. Cuyahoga
No. 104874, 2018-Ohio-2238, ¶ 47, quoting State v. Jackson, 8th Dist. Cuyahoga
No. 86105, 2006-Ohio-174, ¶ 87, quoting State v. Taylor, 78 Ohio St. 3d 15, 31
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(1997). Accordingly, Cook’s trial counsel was not deficient for failing to object to
the admission of the sexual-abuse related hearsay.
{¶111} Yet, as Cook observes, C.C. made other statements to Sherfield
during the course of the forensic interview at the CAC, and some of these statements
do not as neatly satisfy the requirements of Evid.R. 803(4). Specifically, Cook
maintains that statements C.C. made to Sherfield about Cook’s alleged drug use and
involvement in drug trafficking are not admissible under any exception to the
hearsay rule. (Appellant’s Brief at 14). He argues that his trial counsel certainly
should have objected to the admission of these statements. Furthermore, as
indicated above, Cook takes issue with his trial counsel’s failure to object to the
drug-trafficking related hearsay in Amanda’s testimony, and he also contends that
his trial counsel was ineffective for failing to object to the admission of State’s
Exhibit 18—a Crown Royal bag filled with drug paraphernalia that he characterizes
as “overly prejudicial.” (Id. at 13, 17). In a similar vein, Cook claims that he was
prejudiced both by his trial counsel’s failure to object to a portion of Amanda’s
testimony in which she indicated that Cook had previously been incarcerated and
by his trial counsel’s failure to object to the admission of an unredacted copy of
Cook’s divorce decree, which lists Cook’s address as the Corrections Reception
Center in Orient, Ohio. (Id. at 16). Cook argues that, but for his trial counsel’s
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failure to intervene to prevent the admission of this evidence, “it is likely the
outcome of the trial would have been different.” (Id. at 18).
{¶112} We disagree. First, we note that while Cook’s trial counsel did not
object when Amanda testified about Cook’s prior imprisonment, the trial court
eventually instructed the jury to disregard that part of Amanda’s testimony. (May
13, 2019 Tr., Vol. II, at 173-174). “The jury is presumed to follow the trial court’s
instructions.” State v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179, ¶ 103, citing
State v. Loza, 71 Ohio St. 3d 61, 75 (1994). Because there is nothing in the record
suggesting that the jury ignored the trial court’s instruction, we cannot conclude that
this portion of Amanda’s testimony contributed to the jury rendering a verdict it
otherwise would not have reached.
{¶113} Additionally, we do not believe that Cook’s trial counsel’s failure to
object to the admission of State’s Exhibit 18 amounts to deficient performance.
During his testimony, Lieutenant Justice began describing the Crown Royal bag and
its contents before Cook’s trial counsel objected. (May 13, 2019 Tr., Vol. II, at
250). Although the trial court initially sustained the objection, it eventually reversed
course and allowed Detective Justice to testify about the contents of the bag. (Id. at
245-247). Given that the trial court overruled Cook’s trial counsel’s objection to
Lieutenant Justice’s thorough description of the Crown Royal bag and its contents,
an objection to the admission of the Crown Royal bag likely would have been futile,
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and Cook’s “trial counsel was not required to perform a futile act.” State v. Cox, 2d
Dist. Montgomery No. 25477, 2013-Ohio-4941, ¶ 62, citing State v. Lodge, 2d Dist.
Greene No. 2004CA43, 2005-Ohio-1908.
{¶114} Moreover, even assuming that Cook’s trial counsel performed
deficiently by failing to object to the admission of evidence relating to Cook’s prior
criminal history and alleged involvement with drugs and that this evidence was
admitted in error, in light of the considerable admissible evidence of Cook’s guilt,
we do not believe that there is a reasonable probability that the result of Cook’s trial
would have been different if this evidence had not been admitted. Cook has
repeatedly questioned the veracity of C.C.’s claims of sexual abuse and attacked his
credibility, and at trial, C.C. was either unable to remember all of the details of the
alleged sexual abuse or his descriptions of the incidents differed somewhat from the
accounts he gave in 2015. Yet, C.C. was steadfast in his claims that Cook forced
him to engage in sex acts with Jessica and Jackie, touched him inappropriately,
exposed him to pornography, and threatened to kill him and his family. With respect
to the details most critical to determining Cook’s guilt, C.C.’s trial testimony largely
aligned with the disclosures he made during the CAC interview, and to the extent
that C.C.’s trial testimony was at variance with his CAC disclosures, Kuhr’s
testimony concerning the effects of child sexual abuse on memory provides a
reasonable explanation for these differences. Finally, the State introduced other
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evidence, such as the pornographic video found on Cook’s cell phone, providing
independent support for Cook’s guilt and bolstering C.C.’s credibility.
Accordingly, we do not believe that a few scattered references to Cook’s prior
incarceration and evidence of his involvement with drugs, when weighed against
the evidence of his guilt, so contaminated the jury that there is a reasonable
probability that the result of Cook’s trial would have been different had Cook’s trial
counsel attempted to exclude this evidence.
{¶115} Lastly, we consider whether Cook’s trial counsel was ineffective for
failing to object when State’s Exhibit 19 was played for the jury or for failing to
object to the admission of State’s Exhibit 13. State’s Exhibit 19 is a video recording
that depicts C.C., who appears to be approximately ten years old, playing with
Cook’s cat. (State’s Ex. 19). In the video, Cook is heard speaking to C.C., and
Cook addresses C.C. with profanity and a sharp tone at points throughout the
recording. (Id.). C.C. testified that Cook spoke to him like that “[e]very day, at
least, once.” (May 14, 2019 Tr. at 31). State’s Exhibit 13 is Cook’s cell phone with
SD card. (State’s Ex. 13).
{¶116} As to State’s Exhibit 19, Cook claims that it “was highly prejudicial
and served no other purpose than to try and depict [him] in a very unfavorable light.”
(Appellant’s Brief at 17). He argues that his trial counsel performed deficiently by
failing to object when it was played for the jury because “[t]he prejudicial nature
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outweighed any probative value and should not have been seen by the jury * * *.”
(Id.).
{¶117} Cook’s argument is without merit. In each of the three counts of rape
on which Cook was indicted, it was alleged that Cook “purposely compelled [C.C.]
to submit by force or threat of force.” (Doc. No. 1). See R.C. 2971.03(B)(1)(c).
“‘Force’ means any violence, compulsion, or constraint physically exerted by any
means upon or against a person or thing.” R.C. 2901.01(A)(1). “Force or the threat
of force ‘can be inferred from the circumstances surrounding sexual conduct.’”
State v. Kaufman, 187 Ohio App. 3d 50, 2010-Ohio-1536, ¶ 53 (7th Dist.), quoting
State v. Schaim, 65 Ohio St. 3d 51 (1992), paragraph one of the syllabus. “[T]he
force necessary to commit rape depends upon the respective age, size, and strength
of the parties and their relation to each other.” Id., citing State v. Eskridge, 38 Ohio
St.3d 56, 58 (1988). “[W]hen the rape involves a child and that child’s parent, or
[a] person who stands in loco parentis, subtle and psychological forms of coercion
sufficiently show force.” State v. Schroeder, 4th Dist. Adams No. 18CA1077, 2019-
Ohio-4136, ¶ 77, citing State v. Shadoan, 4th Dist. Adams No. 03CA764, 2004-
Ohio-1756, ¶ 21 and Eskridge at 58-59. “‘As long as it can be shown that the rape
victim’s will was overcome by fear or duress, the forcible element * * * can be
established.’” Id., quoting Shadoan at ¶ 21. “A child’s will can be overcome by
fear and duress when [a parent] tells the child to do something, and commands the
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child not to tell anyone about it.” State v. Dehner, 12th Dist. Clermont No. CA2012-
12-090, 2013-Ohio-3576, ¶ 19, citing Eskridge at 58.
{¶118} Here, State’s Exhibit 19 was relevant to determining whether Cook
exerted sufficient psychological pressure on C.C. to overcome C.C.’s will and force
him to engage in sexual conduct with Jessica and Jackie. Relevant evidence is any
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable that
it would be without the evidence.” Evid.R. 401. Relevant evidence is generally
admissible, though relevant evidence must be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Evid.R. 402; Evid.R.
403(A). State’s Exhibit 19 is relevant evidence because its depictions of the way
that Cook talked to C.C. and the way C.C. responded to Cook, coupled with C.C.’s
testimony that Cook regularly talked to him in that manner, make it more probable
that Cook wielded his parental authority over C.C. to coerce C.C. into engaging in
sexual conduct with Jessica and Jackie. While State’s Exhibit 19 does not depict
Cook in the most flattering light, we do not agree with Cook that his portrayal is so
negative as to substantially outweigh the video’s probative value. Therefore,
because State’s Exhibit 19 is likely admissible, we cannot conclude that Cook’s trial
counsel committed an unprofessional error by failing to object when it was played
for the jury. See Carter, 2018-Ohio-2238, at ¶ 47. Regardless, given the only mildly
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negative depiction of Cook in State’s Exhibit 19 and the other evidence supporting
the allegations that Cook pushed C.C. into engaging in sexual conduct with Jessica
and Jackie, we do not believe that there is a reasonable probability that Cook’s trial
would have ended differently if the video had not been played for the jury.
{¶119} We also conclude that Cook has not demonstrated that he was
prejudiced by his trial counsel’s failure to object to the admission of State’s Exhibit
13. Cook argues that State’s Exhibit 13, his cell phone and SD card, “contain[ed]
more video[s] than [were] shown in court” and that the admission of the cell phone
and SD card “created the possibility of the jury considering evidence outside of the
trial proceedings, resulting in a prejudicial influence * * *.” (Appellant’s Brief at
17). Cook has raised only the mere possibility that the jury viewed other videos
contained on the cell phone and SD card. However, there is no indication that the
jury viewed any other videos that might be stored on the cell phone and SD card
and, therefore, no evidence that the jury viewed any videos that could have
prejudiced Cook. If the jury did not view other videos, the admission of the cell
phone and SD card could not have affected the jury’s verdicts. See State v. Carson,
10th Dist. Franklin No. 11AP-809, 2012-Ohio-4501, ¶ 30 (noting that the defendant
could not demonstrate a reasonable probability of a different trial outcome where
there was no evidence that the jury actually viewed a potentially prejudicial video
segment). As a result, we conclude that Cook has not established that there is a
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reasonable probability that the result of his trial would have been different but for
his trial counsel’s failure to object to the admission of his cell phone and SD card.
See id.
{¶120} Cook’s fifth assignment of error is overruled.
Assignment of Error No. VI
Appellant was denied a fair trial as a result of the cumulative
errors that occurred throughout the trial.
{¶121} In his sixth assignment of error, Cook argues that cumulative errors
committed throughout the trial prevented him from having a fair trial. He argues
that the following four errors, though perhaps harmless by themselves, combined to
deprive him of a fair trial: (1) the trial court’s decision to prevent Patricia from
testifying about whether she believed that C.C.’s accusations were true; (2) the trial
court’s decision to allow the amendment of the indictment without advising Cook
that he “was entitled to a continuance and possible discharge of the present jury”;
(3) the admission over Cook’s objection of State’s Exhibits 16 and 17—prescription
pill bottles bearing Jackie’s name that were found in Patricia’s house; and (4) the
admission of Lieutenant Justice’s testimony about the contents of the Crown Royal
bag, the admission of the Crown Royal bag and its contents, and the admission of
C.C.’s out-of-court statements about Cook’s alleged involvement with drugs.
(Appellant’s Brief at 19-21).
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{¶122} “Under [the] doctrine of cumulative error, a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a fair
trial even though each of the numerous instances of trial court error does not
individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-
13-50, 2015-Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-
2577, ¶ 222-224 and State v. Garner, 74 Ohio St. 3d 49, 64 (1995). “‘To find
cumulative error, a court must first find multiple errors committed at trial and
determine that there is a reasonable probability that the outcome below would have
been different but for the combination of the harmless errors.’” State v. Stober, 3d
Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d Dist.
Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36.
{¶123} After reviewing the record, we conclude that Cook was not denied a
fair trial by cumulative error. First, with respect to Cook’s first two alleged errors,
we have previously concluded that the trial court did not err by preventing Patricia
from testifying about whether she believed C.C.’s allegations or by allowing the
indictment to be amended pursuant to Crim.R. 7(D). Cook finds fault in the trial
court’s failure to advise him that he could have tried to secure a reasonable
continuance or a discharge of the jury in response to the amendments. However,
Crim.R. 7(D) places no obligation on the trial court to inform the defendant of his
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options under the rule, and we decline to graft such a requirement onto Crim.R.
7(D).
{¶124} Moreover, even assuming that the trial court erred both by allowing
the admission of State’s Exhibits 16 and 17 and by allowing the admission of the
Crown Royal bag and other evidence relating to Cook’s drug use, we cannot
conclude that these errors combined to deprive Cook of a fair trial. As discussed in
exhaustive detail above, the State presented substantial evidence establishing
Cook’s guilt. Consequently, Cook cannot show that the trial court’s errors in
allowing this evidence to be admitted, if any, combined to deny him a fair trial. See
State v. Mathis, 8th Dist. Cuyahoga No. 107365, 2019-Ohio-3654, ¶ 82-83.
{¶125} Cook’s sixth assignment of error is overruled.
{¶126} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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