State v. Jewell , 2022 Ohio 2727 ( 2022 )

[Cite as State v. Jewell, 2022-Ohio-2727.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-09-080
: OPINION
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:
JAMES JEWELL, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20CR37521
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellant.
S. POWELL, J.
{¶ 1} Appellant, James Jewell, appeals from his conviction in the Warren County
Court of Common Pleas after a jury found him guilty of three counts of third-degree felony
unlawful sexual conduct with a minor. For the reasons outlined below, we affirm Jewell's
conviction.
Warren CA2021-09-080
{¶ 2} On December 11, 2020, a Warren County Grand Jury returned an indictment
charging Jewell with three counts of third-degree felony unlawful sexual conduct with a
minor in violation of 2907.04(A). The charges arose after it was discovered the then 37-
year-old Jewell had been engaged in an inappropriate sexual relationship with a 15-year-
old girl, J.T., between December 1, 2019 and March 28, 2020 while at Jewell's home located
in Morrow, Warren County, Ohio. A three-day jury trial was held on the matter between
July 26 to July 28, 2021. During trial, the jury heard testimony from a number of key
witnesses. This included testimony from the victim, J.T., J.T.'s therapist and mental health
counselor, Sharon Kuss, and an investigating detective with the Warren County Sheriff's
Office, Detective Brandi Carter. This also included testimony from Jewell's ex-wife and from
Jewell himself. The following is a summary of J.T.'s and Jewell's trial testimony.
{¶ 3} J.T., who was 16 years old at the time of trial, testified that she became best
friends with Jewell's daughter, S.J., in the seventh grade when she was attending school in
Morrow, Ohio. J.T. testified that she remained very close friends with S.J. even after she
moved away and began attending school in Georgetown, Ohio. J.T. testified that this
included her sometimes spending the night at S.J.'s house. However, when J.T. did spend
the night at S.J.'s house, J.T. testified that S.J. would "always be on her computer playing
with other people or talking with other people." J.T. testified it was at this time that her
relationship with S.J.'s father, Jewell, began to change. J.T. testified that this included
Jewell messaging her on Snapchat, paying her "compliments," calling her "pretty," and "that
type of stuff."1 J.T. testified that one of the messages she received from Jewell over
1. "Snapchat is a social media platform that allows participants to send pictures and text messages to each
other." Hamilton v. Combs, 12th Dist. Butler No. CA2018-02-026, 2019-Ohio-190, ¶ 2, fn. 1, citing State v.
Hunter, 11th Dist. Lake No. 2017-L-081, 2018-Ohio-5325, ¶ 2. "[O]ne of its core concepts [is] that any
pictures, videos or messages sent between users are only available for a short time before they are deleted
or otherwise become inaccessible." Bollinger v. Ohio Dept. of Edn., 3d Dist. Marion No. 9-18-07, 2018-Ohio-
3714, ¶ 5, fn. 2.
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Snapchat included a photograph of Jewell's penis. When asked to describe what Jewell's
penis looked like in that photograph, J.T. testified, "I don't remember. I was like, I don't
even think – honestly, I don't think I was fifteen yet when that happened."
{¶ 4} J.T. testified the Snapchat messages between her and Jewell evolved into
her and Jewell exchanging "[s]mall hugs," frequently "[k]issing" on the lips in "like a
relationship type of way," and "cuddling" and watching television on Jewell's bed located in
Jewell's second-floor bedroom. J.T. testified that these hugs and kisses then led to even
more flirting and "playful hitting" between her and Jewell, as well as she and Jewell
engaging in more intense "[s]exual touching." J.T. testified this included multiple "hand
jobs" and "blow jobs." J.T. testified this also included her donning pantyhose and "slightly"
moving her feet around "[i]n the air" because Jewell "liked them in pantyhose" and that was
his "thing."2 J.T. further testified that Jewell had used his "finger" to touch her vagina, that
Jewell had used his mouth and tongue to touch her vagina and suck on her breasts, and
that Jewell had used his penis to engage in sexual intercourse with her on two or three
occasions. J.T. testified that this included one occasion where she was laying in the middle
of Jewell's bed next to S.J. after she and S.J. fell asleep watching television.
{¶ 5} J.T. testified that these sex acts, as well as the exchange of "I love yous"
between herself and Jewell, led her to believe that she and Jewell were in a relationship in
a "[n]atural, I guess boyfriend/girlfriend type of way." However, although believing that she
and Jewell were boyfriend and girlfriend, when asked if she and Jewell would ever hug or
kiss in front of other people, J.T. responded "No." J.T. testified this was because she and
Jewell wanted to keep their relationship a "secret" and "didn't want to get caught." J.T. also
2. We note that both Jewell and Jewell's trial counsel referred to this as a "foot job." J.T., however, testified
that she never actually touched Jewell's body with her feet, just that she would raise her pantyhose-clad feet
into the air and "slightly" move them around while Jewell watched and, from what this court can glean from
the record, masturbated.
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testified that she had initially lied to police about her relationship with Jewell because she
"was getting scared," she "didn't want to be in trouble," and "didn't want [Jewell's] family to
get 'ruined' or anything like that." J.T. additionally testified that she had lied to police
because she "didn't want [her] dad to know what was going on," and "because his kids, they
are my friends. I obviously wanted them to have a parent so – I just I lied, so maybe they
could have a family I guess." J.T. testified that she lied again and denied that anything
beyond "cuddling" and "kisses" had ever occurred between her and Jewell when she was
interviewed at a local child advocacy center. J.T. testified that she did this because she
was "scared," "nervous," and "didn't want to be the one in trouble."
{¶ 6} Jewell testified in his defense and denied ever having an inappropriate sexual
relationship with J.T. However, although denying a sexual relationship between he and J.T.
had occurred, Jewell acknowledged that he and J.T. "would give each other hugs whenever
leaving or whenever dropping her off." Jewell also admitted that he and J.T. "started saying
I love you," but that it did not mean anything "more than just the greeting or saying goodbye"
like the way he would tell his children that he loved them. Jewell further admitted that J.T.
had slept in his bed on approximately four occasions. But, even then, Jewell testified that
J.T. only slept in his bed when his daughter, S.J., was with her and that it was never J.T.
sleeping in his bed by herself. Jewell additionally denied ever kissing J.T. on the lips, ever
performing cunnilingus on J.T., ever having sexual intercourse with J.T., or that J.T. had
ever given him a "hand job," a "blow job," or a "foot job." Jewell also denied ever trying to
"lead [J.T.] on" or "manipulate [J.T.] into a relationship" with him.
{¶ 7} Once both parties rested, and following deliberations, the jury returned a
verdict finding Jewell guilty as charged. Approximately three weeks later, on August 18,
2021, the trial court held a sentencing hearing and sentenced Jewell to serve a total,
aggregate sentence of 144 months (12 years) in prison, less 29 days of jail-time credit. The
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trial court also designated Jewell a Tier II sex offender and notified Jewell that he would be
subject to a mandatory five-year postrelease control term upon his release from prison.
Jewell filed a timely notice of appeal on September 2, 2021. Oral argument was held before
this court on July 5, 2022. Jewell's appeal now properly before this court for decision, Jewell
has raised two assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE FOR DISCOVERY
VIOLATIONS.
{¶ 10} In his first assignment of error, Jewell initially argues the trial court erred by
excluding several photographs from evidence depicting the "distinctive markings" on his
penis. The trial court found the exclusion of those photographs was the appropriate
discovery sanction for trial counsel's failure to disclose the photographs to the state prior to
trial. We find no merit to this argument.
{¶ 11} Crim.R. 16 governs discovery in criminal cases. State v. Johnson, 12th Dist.
Fayette No. CA2018-06-013, 2019-Ohio-754, ¶ 35. "Crim.R. 16(H) addresses a
defendant's obligation to provide the prosecution with reciprocal discovery." State v.
Ferricci, 8th Dist. Cuyahoga No. 110208, 2022-Ohio-1393, ¶ 34; State v. Kopchak, 5th Dist.
Muskingum No. CT2017-0036, 2018-Ohio-1136, ¶ 16. Specifically, Crim.R. 16(H) provides,
"[i]f the defendant serves a written demand for discovery or any other pleading seeking
disclosure of evidence on the prosecuting attorney," something that Jewell did in this case,
"a reciprocal duty of disclosure by the defendant arises without further demand by the state."
Therefore, "according to the plain language of Crim.R. 16(H), the [s]tate no longer has an
obligation to file a written demand for discovery. Instead, a reciprocal duty arises by
operation of the rule when a defendant files a written demand for discovery." State v.
Belville, 4th Dist. Lawrence No. 19CA27, 2021-Ohio-820, ¶ 21; State v. Kesler, 3d Dist.
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Seneca No. 13-13-35, 2014-Ohio-3376, ¶ 8 ("[t]he reciprocal requirements of Criminal Rule
16 for discovery are triggered by the request for discovery by the defendant").
{¶ 12} The overall objective behind Crim.R. 16 is to remove the element of
gamesmanship from a criminal prosecution so that a fair trial can be had. State v. Howard,
56 Ohio St.2d 328, 333 (1978) ("[t]he philosophy of the Criminal Rules is to remove the
element of gamesmanship from a trial"). The purpose of Crim.R. 16 is also to prevent
surprise and the secreting of evidence favorable to one party. Lakewood v. Papadelis, 32
Ohio St.3d 1, 3 (1987) ("[t]he purpose of discovery rules is to prevent surprise and the
secreting of evidence favorable to one party"). This is evidenced by the language found in
Crim.R. 16(H)(3), which provides, in pertinent part, the following:
(H) * * * The defendant shall provide copies or photographs, or
permit the prosecuting attorney to copy or photograph, the
following items related to the particular case indictment,
information or complaint, and which are material to the
innocence or alibi of the defendant, or are intended for use by
the defense as evidence at the trial, or were obtained from or
belong to the victim, within the possession of, or reasonably
available to the defendant * * *:
(3) Any evidence that tends to negate the guilt of the defendant,
or is material to punishment, or tends to support an alibi.
However, nothing in this rule shall be construed to require the
defendant to disclose information that would tend to incriminate
that defendant[.]
{¶ 13} "Crim.R. 16(L) sets forth the trial court's role in regulating discovery between
the parties." State v. Bugara, 5th Dist. Stark No. 2018CA00039, 2019-Ohio-39, ¶ 32.
Pursuant to Section (1) of that rule:
The trial court may make orders regulating discovery not
inconsistent with this rule. If at any time during the course of the
proceedings it is brought to the attention of the court that a party
has failed to comply with this rule or with an order issued
pursuant to this rule, the court may order such party to permit
the discovery or inspection, grant a continuance, or prohibit the
party from introducing in evidence the material not disclosed, or
it may make such other order as it deems just under the
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circumstances.
Therefore, based on the plain language found in Crim.R. 16(L)(1), "'when a party fails to
provide discovery, the trial court may, inter alia, grant a continuance, prohibit the party from
introducing into evidence the undisclosed material, or make any other order it deems just
under the circumstances.'" State v. Robinson, 12th Dist. Butler No. CA2015-01-013, 2015-
Ohio-4533, ¶ 21, quoting State v. Proby, 10th Dist. Franklin No. 14AP-1067, 2015-Ohio-
3364, ¶ 33.
{¶ 14} "It is within the trial court's sound discretion to decide what sanction to impose
for a discovery violation." State v. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-
Ohio-2733, ¶ 37, citing State v. Davis, 12th Dist. Butler No. CA2010-06-143, 2011-Ohio-
2207, ¶ 20. When deciding on a sanction, however, "the trial court must impose the least
severe sanction that is consistent with the purpose of the rules of discovery." State v.
Palmer, 12th Dist. Butler Nos. CA2013-12-243 and CA2014-01-014, 2014-Ohio-5491, ¶ 39,
citing State v. Retana, 12th Dist. Butler No. CA2011-12-225, 2012-Ohio-5608, ¶ 53.
"Exclusion of evidence is a permissible sanction for a criminal defendant's discovery
violation as long as the exclusion does not completely deny the defendant the constitutional
right to present a defense." State v. Bellamy, 12th Dist. Butler No. CA2013-09-170, 2014-
Ohio-5187, ¶ 25, citing Davis at ¶ 21; State v. Parson, 6 Ohio St.3d 442, 445 (1983) ("[t]he
court is not bound to exclude such material at trial although it may do so as its option").
{¶ 15} We review a trial court's decision to exclude evidence as a discovery sanction
for an abuse of discretion. State v. Bowen, 5th Dist. Holmes No. 19CA0007, 2020-Ohio-
24, ¶ 37, citing State v. Barrios, 9th Dist. Lorain No. 06CA009065, 2007-Ohio-7025, ¶ 18.
"A trial court abuses its discretion when it makes a decision that is unreasonable,
unconscionable, or arbitrary." State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, ¶ 34,
citing State v. Adams, 62 Ohio St.2d 151, 157 (1980). "A decision is unreasonable where
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a sound reasoning process does not support it." State v. Miller, 12th Dist. Butler No.
CA2016-01-007, 2016-Ohio-7360, ¶ 7, citing AAAA Ents., Inc. v. River Place Community
Urban Redev. Corp., 50 Ohio St.3d 157, 161 (1990).
{¶ 16} Jewell claims the trial court's decision to exclude the photographs depicting
the "distinctive markings" on his penis from evidence as a discovery sanction denied him
the opportunity to present "at least part" of his defense by relegating him to a "my word
against yours" strategy when there was "objective," photographic evidence that proved he
had not been engaged in an inappropriate sexual relationship with the victim. This is
because, according to Jewell, allowing him to introduce photographs of the markings on his
penis after J.T. testified and denied seeing any markings on Jewell's penis would have
provided indisputable proof that J.T.'s allegations were false since she "obviously" would
have had the "opportunity to see them if she had seen it." However, despite what Jewell
appears to be arguing, the fact that J.T. testified and denied seeing any markings on
Jewell's penis does not necessarily mean Jewell had not engaged in an inappropriate
sexual relationship with J.T. Far from it. This is particularly true in this case when
considering Jewell's ex-wife also testified and denied knowing if Jewell had any distinctive
markings on his penis.
{¶ 17} The trial court's decision to exclude the photographs of Jewell's penis from
evidence also did not deprive Jewell of the opportunity to present a defense. The trial
court's decision instead merely precluded Jewell from presenting that portion of his defense
in that particular medium, i.e., photographic evidence as opposed to through his own trial
testimony. This becomes clear when reviewing Jewell's trial testimony about his penis.
Jewell specifically testified and described his genitalia as having approximately 15 "dark
red" noticeable spots on his scrotum. This also includes Jewell testifying that his penis,
which Jewell described as being "not that long," has a distinctive mole on the top right side
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with a "flat flap of skin that sticks up past the mole" that measures "almost a centimeter
wide, maybe." Therefore, under these circumstances, and when considering Jewell was
not precluded from presenting his defense, the trial court did not abuse its discretion by
excluding the photographs of Jewell's penis from evidence as a discovery sanction. Jewell's
claim otherwise lacks merit.
{¶ 18} Jewell also argues his trial counsel provided him with ineffective assistance
by failing to disclose the photographs of his penis to the state prior to trial. We again
disagree.
{¶ 19} "Counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment." State
v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7. Because of this,
"[a]n appellate court must give wide deference to the strategic and tactical choices made
by trial counsel in determining whether counsel's performance was constitutionally
ineffective." State v. Reeves, 12th Dist. Clermont No. CA2020-01-001, 2020-Ohio-5565, ¶
32. Therefore, to establish an ineffective assistance of counsel claim, Jewell must
demonstrate both that (1) his trial counsel's performance was deficient; and (2) his trial
counsel's deficient performance was prejudicial to him. State v. Simpson, 164 Ohio St.3d
102, 2020-Ohio-6719, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052 (1984). The failure to make an adequate showing on either prong is fatal to an
ineffective assistance of counsel claim. State v. Zielinski, 12th Dist. Warren No. CA2010-
12-121, 2011-Ohio-6535, ¶ 50.
{¶ 20} Jewell argues he received ineffective assistance of counsel because his trial
counsel's "failure to comply with the Discovery Rules resulted in the exclusion of material
evidence on an important issue or credibility in a disputed case." However, even when
assuming Jewell's trial counsel's performance was deficient, Jewell cannot establish any
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resulting prejudice therefrom. See State v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566,
¶ 93 ("prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's
result would have been different"). This is because, as noted above, the trial court's
decision to exclude the photographs of Jewell's penis from evidence did not deprive Jewell
of the opportunity to present a defense. The trial court's decision instead merely precluded
Jewell from presenting that portion of his defense in that particular medium, i.e.,
photographic evidence as opposed to through his own trial testimony. Therefore, because
Jewell cannot demonstrate any resulting prejudice, it simply cannot be said that Jewell's
trial counsel provided him with ineffective assistance. Accordingly, finding no merit to any
of Jewell's arguments raised herein, Jewell's first assignment of error lacks merit and is
overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} THE TRIAL COURT ERRED IN ADMITTING EVIDENCE THAT VOUCHED
FOR THE CREDIBILITY OF THE ACCUSING WITNESS.
{¶ 23} In his second assignment of error, Jewell argues the trial court erred by
admitting certain testimony elicited from Sharon Kuss, J.T.'s therapist and mental health
counselor, and from Detective Carter, an investigating detective with the Warren County
Sheriff's Office. We disagree.
{¶ 24} When properly objected to, this court reviews a trial court's decision to admit
or exclude evidence under an abuse of discretion standard. State v. Gerde, 12th Dist.
Clermont No. CA2016-11-077, 2017-Ohio-7464, ¶ 8. Jewell, however, did not object to any
of the challenged testimony elicited from Kuss and Detective Carter for which he now
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complains.3 By failing to object, Jewell has waived all but plain error on appeal. State v.
Grimm, 12th Dist. Clermont No. CA2018-10-071, 2019-Ohio-2961, ¶ 21, citing State v.
Rogers, 12th Dist. Butler No. 2017-08-112, 2018-Ohio-1356, ¶ 24. Pursuant to Crim.R.
52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court." "An error does not rise to the level of a plain
error unless, but for the error, the outcome of the trial would have been different." State v.
Cooperstein, 12th Dist. Warren No. CA2018-09-117, 2019-Ohio-4724, ¶ 49, citing Palmer,
2014-Ohio-5491 at ¶ 21.
{¶ 25} "'Notice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.'" State v. Harner, 12th Dist. Brown No. CA2019-10-012, 2020-Ohio-3071, ¶ 24,
quoting State v. Landrum, 53 Ohio St.3d 107, 111 (1990). That is to say, a finding of plain
error is made "'only in the extremely rare case * * * where error, to which no objection was
made at the trial court, seriously affects the basic fairness, integrity, or public reputation of
the judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.'" State v. Culler, 7th Dist. Columbiana No. 20 CO 0030, 2021-Ohio-4642, ¶ 15,
quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123 (1997).
{¶ 26} Jewell argues it was error for the trial court to allow Kuss and Detective Carter
3. In his reply brief, Jewell raises a new argument claiming his trial counsel was ineffective for "the failure of
trial counsel to more precisely object" to Kuss' and Detective Carter's challenged testimony. However, even
assuming Jewell's characterization of the record were true, which we find it is not, Jewell cannot raise this
argument by way of his reply brief. It is well-established that "[a] reply brief is not to be used by an appellant
to raise new assignments of error or issues for consideration; it is merely an opportunity to reply to the
appellee's brief." State v. Singh, 12th Dist. Butler No. CA2000-05-097, 2001 Ohio App. LEXIS 1591, *8, fn. 1
(Apr. 2, 2001). Because of this, "[a]ppellate courts generally will not consider a new issue presented for the
first time in a reply brief." State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 18. Therefore,
because it is within this court's discretion whether to address arguments raised for the first time by way of the
reply brief, we decline to address Jewell's argument alleging his trial counsel was ineffective for not making a
"more precise" objection to Kuss' and Detective Carter's challenged testimony. We do this because, as
explained more fully below, it was not error, plain or otherwise, for the trial court to admit the testimony elicited
from Kuss and Detective Carter for which Jewell complains.
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to testify as to why J.T. may have initially denied being sexually abused "and essentially
why that was normal and consistent and not indicative of a lack of credibility on J.T.'s part."
Jewell argues that allowing Kuss and Detective Carter to testify in this manner improperly
bolstered and vouched for J.T.'s credibility and served as a "backdoor" way to "introduce
her hearsay statements implicating [him]." However, although we agree that it is generally
improper for a witness to express his or her opinion of a child declarant's veracity, see State
v. Boston, 46 Ohio St.3d 108 (1989), paragraph one of the syllabus, there is an important
distinction "between expert testimony that a child witness is telling the truth and evidence
which bolsters a child's credibility insofar as it supports the prosecution's efforts to prove
that a child has been abused." (Emphasis deleted.) State v. Stowers, 81 Ohio St.3d 260,
262 (1998).
{¶ 27} That is to say, while a witness is generally precluded from "offering an opinion
as to the truth of a child's statements (e.g., the child does or does not appear to be
fantasizing or to have been programmed, or is or is not truthful in accusing a particular
person)," a witness is not precluded from offering testimony that serves as "additional
support for the truth of the facts testified to by the child, or which assists the fact finder in
assessing the child's veracity." (Emphasis deleted.) Id. at 262-263; State v. Ruggles, 12th
Dist. Warren CA2019-05-038 and CA2019-05-044 thru CA2019-05-046, 2020-Ohio-2886,
¶ 65 (it is "only statements that directly support the veracity of the witness [that] are
prohibited" under Boston). "This distinction recognizes the reality that, 'indirect bolstering
of a victim's credibility is not the same as the direct rendering of an opinion as to a victim's
veracity that was involved in Boston.'" State v. Fannin, 12th Dist. Warren No. CA2020-03-
022, 2021-Ohio-2462, ¶ 62, quoting State v. Boles, 12th Dist. Brown No. CA2012-06-012,
2013-Ohio-5202, ¶ 30.
{¶ 28} In this case, neither Kuss' nor Detective Carter's testimony for which Jewell
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complains offered an opinion, either directly or indirectly, as to the truth and veracity of J.T.'s
sexual abuse allegations. Kuss' and Detective Carter's challenged testimony merely
explained why they believed it was normal and consistent for a child victim of sexual abuse
to initially deny the sexual abuse had occurred. Therefore, under these circumstances, we
cannot say the trial court committed error, plain or otherwise, in admitting Kuss' or Detective
Carter's testimony at trial given that such testimony it did not directly support J.T.'s veracity
as prohibited by Boston. This is because, as explained by the Ohio Supreme Court, "[a]n
expert witness's testimony that the behavior of an alleged child victim of sexual abuse is
consistent with behavior observed in sexually abused children is admissible under the Ohio
Rules of Evidence." Stowers at 261.
{¶ 29} In so holding, we find it significant that J.T. testified at trial and was subject to
rigorous cross-examination regarding her allegations of sexual abuse that she had levied
against Jewell. The jury was therefore clearly able to independently assess J.T.'s credibility
for itself without any assistance from either Kuss' or Detective Carter's trial testimony. See,
e.g., State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 59 ("Lastly,
unlike the child victim in Boston who was unavailable to testify, E.M. testified at trial and
described the abuse in detail. E.M. was subject to cross-examination regarding her
allegations and the trial court was clearly able to independently assess her credibility.").
Accordingly, finding no error, plain or otherwise, in the trial court's decision to admit the
challenged testimony elicited from Kuss and Detective Carter at issue, Jewell's second
assignment of error lacks merit and is overruled.
{¶ 30} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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