State v. Lawson

[Cite as State v. Lawson, 2015-Ohio-189.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DICTRICT
HIGHLAND COUNTY
STATE OF OHIO, : Case No. 14CA5
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
CASPER LAWSON, :
Defendant-Appellant. : RELEASED: 1/16/2015
APPEARANCES:
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecuting Attorney, and Ross Greer, Highland
County Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee.
Harsha, J.
{¶1} After a jury convicted Casper Lawson of two counts of rape of a child
under thirteen years old and multiple other sexually oriented offenses, the court
sentenced him to life in prison. On appeal Lawson claims that the trial court erred by
permitting a forensic interviewer to vouch for two of the state’s witnesses. We reject
Lawson’s contention because the trial court did not commit error, much less plain error,
in allowing the forensic interviewer to testify that based on her interviews with two of the
child victims, she concluded that medical examinations were necessary. The forensic
interviewer did not give her opinion of the children’s veracity. Her testimony simply
provided information that helped the jury to determine whether sexual abuse had
occurred. And because the children testified and were subjected to cross-examination
by Lawson’s counsel at trial, the jury was able to independently assess their credibility.
Thus, even if admission of the interviewer’s testimony was improper, Lawson cannot
Highland App. No. 14CA5 2
establish that without the interviewer’s testimony, the outcome of the trial clearly would
have been otherwise.
{¶2} In his second assignment of error Lawson asserts that his trial counsel
was ineffective because he failed to specifically object based on improper vouching to
the forensic interviewer’s testimony. Because the challenged testimony did not
constitute improper vouching, we reject Lawson’s contention, i.e. Lawson cannot
establish either deficient performance by counsel or prejudice.
{¶3} Therefore, we overrule Lawson’s assignments of error and affirm the
judgment of the trial court.
I. FACTS
{¶4} F.K., a minor child, and her parents reported to the Highland County
Sheriff’s Department that she had been sexually abused by Lawson. They produced
Lawson’s cellphone, which contained several photographs of naked children and
children engaging in sexual conduct with adults. After the police interviewed Lawson,
they obtained and executed a search warrant of his camper and found a metal box with
a VHS tape containing sexually graphic images of Lawson’s daughter S.C., who had
stayed at Lawson’s home on several occasions.
{¶5} Shortly thereafter, a Highland County grand jury indicted Lawson on two
counts of rape, one count of gross sexual imposition, and twenty-four counts of illegal
use of a minor in nudity-oriented material. The two counts of rape related to his sexual
conduct with F.K., who was approximately nine years old at the time of the offenses.
The count of gross sexual imposition related to his sexual conduct with his daughter
Z.C., who was approximately ten years old at the time of the offense. One of the counts
Highland App. No. 14CA5 3
of illegal use of a minor in nudity-oriented material related to his possession of the VHS
tape showing S.C., who is Z.C.’s “half-sister” and was thirteen years old at the time,
asleep with her shorts being pulled away to expose her vagina. The remaining counts
related to images of child pornography on Lawson’s cellphone.
{¶6} After Lawson pleaded not guilty and received appointed counsel, the
matter proceeded to a jury trial. There the three minor children, F.K., Z.C., and S.C.,
testified in detail about Lawson’s sexual misconduct and were subject to cross-
examination by his trial counsel. F.K. testified that Lawson stuck his fingers inside her
vagina about three times and that he put his penis into her vagina about five times.
Lawson threatened he would kill and hurt her, her family, and her puppy if she told
anybody. Lawson’s minor daughter, Z.C., testified that Lawson had touched her private
parts through her clothing and he had threatened to hurt her and her family if she told
anyone. S.C. testified that she and Z.C. were sleeping over at Lawson’s apartment
when they were videotaped and that she did not give anyone permission to videotape
her.
{¶7} During the trial Lawson’s trial counsel objected to the testimony of Cecilia
Freihofer, who is a licensed social worker employed as a forensic interviewer at the
Mayerson Center for Safe and Healthy Children in Cincinnati Children’s Hospital.
Lawson’s trial attorney claimed that any testimony by Freihofer about what the children
told her during their interviews was inadmissible hearsay. The trial court determined
that this testimony was admissible under the Evid.R. 803(4) exception for statements
made for purposes of medical diagnosis or treatment. See State v. Arnold, 126 Ohio
St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, paragraph two of the syllabus
Highland App. No. 14CA5 4
(“Statements made to interviewers at child-advocacy centers that are made for medical
diagnosis and treatment are nontestimonial and are admissible without offending the
Confrontation Clause”); State v. Pence, 12th Dist. Warren No. CA2012-05-045, ¶ 32
(“Hearsay statements made to a social worker may be admissible if they are made for
purposes of medical diagnosis or treatment”).
{¶8} Freihofer testified that when a child alleges abuse, the protocol is for her
to interview the child to assess the need for medical care, e.g. a physical and mental-
health examination. According to Freihofer, Z.C. reported to her that Lawson had
touched and grabbed her vaginal area and had punched her in the arm when she tried
to get him to stop. Z.C. complained about physical pain and stated that she often
thought about killing herself. Based on the interview Freihofer “assessed that a medical
exam was indicated because of her complaints of pain and being worried about her
body, as well as further psychiatric assessment through [the] emergency department
there at the hospital.”
{¶9} Freihofer also testified that she interviewed F.K., who reported multiple
incidents of sexual abuse by Lawson and indicated that she was worried about her
physical condition and had daily thoughts about killing herself. Based on the interview
Freihofer concluded that F.K. “was indicated for a medical exam, she was also worried
about her body and then also after the medical exam [Freihofer] escorted her down to
the emergency room also for further psychiatric evaluation.”
{¶10} Lawson, the sole defense witness, denied that he had sexually abused
any of the children. He said that F.K., Z.C., and S.C. were liars. He claimed that he
had purchased the cellphone for S.C., but after he saw what he considered to be
Highland App. No. 14CA5 5
inappropriate pictures on it, he put it in a plastic bag out of reach of the children. He
further claimed that he thought the VHS tape was something that had been recorded by
Z.C. and he put it away without looking at what was on it.
{¶11} The jury returned verdicts finding Lawson guilty of two counts of rape, one
count of gross sexual imposition, and fifteen counts of illegal use of a minor in nudity-
oriented material. The trial court convicted Lawson of these offenses and sentenced
him to two life terms of imprisonment for his rape convictions, to be served consecutive
to each other and to the 225 months imposed for his remaining convictions.
{¶12} This appeal followed some procedural steps that are not relevant to the
merits of our decision.
II. ASSIGNMENTS OF ERROR
{¶13} Lawson assigns the following errors for our review:
1. The trial court erred by permitting a “forensic interviewer” to vouch for
two of the State’s witnesses. Evid.R. 702 and 704; T.p. 156-7, 161-5.
2. Trial counsel was ineffective if his objection to the testimony of the
forensic social worker was inadequate. Evid.R. 702 and 704; Sixth
and Fourteenth Amendments to the Constitution of the United States;
T.p. 156-7, 161-5.
III. LAW AND ANALYSIS
Improper Vouching
{¶14} In his first assignment of error Lawson asserts that the trial court erred by
permitting a forensic interviewer to vouch for two of the state’s witnesses—F.K. and
Z.C. Because Lawson did not raise this specific objection during the trial court
proceedings, he forfeited all but plain error. State v. Knott, 4th Dist. Athens No.
03CA30, 2004-Ohio-5745, ¶ 9, citing Evid.R. 103(A)(1) (“Because counsel’s objection
Highland App. No. 14CA5 6
did not apprise the court of this specific argument, we believe a plain error analysis of
the issue is appropriate”), see also Painter and Pollis, Ohio Appellate Practice, § 1:34
(2014).
{¶15} Appellate courts take notice of plain error “ ‘with the utmost caution, under
exceptional circumstances and only to prevent a miscarriage of justice.’ ” State v.
Mammone, 139 Ohio St. 3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69, quoting State
v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. To
prevail, Lawson must show that an error occurred, that the error was plain, and that but
for the error, the outcome of the trial clearly would have been otherwise. Mammone at
¶ 69, citing State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002); see also
State v. Bethel, 4th Dist. Jackson No. 13CA11, 2014-Ohio-3861, ¶ 11.
{¶16} Lawson complains Freihofer, the forensic interviewer, testified that “both
required additional medical services to treat them for sexual abuse.” And he contends
this constituted impermissible vouching for the minor children’s truthfulness because
Freihofer’s testimony was based solely on what F.K. and R.C. told her during the
interviews. In his brief Lawson asserts that as an expert witness, Freihofer could not
vouch for the credibility of the F.K. and Z.C. It has long been held that “[a]n expert may
not testify as to the expert’s opinion of the veracity of the statements of a child witness.”
State v. Boston, 46 Ohio St. 3d 108, 545 N.E.2d 1220 (1989), syllabus.
{¶17} Although Lawson contended at oral argument that Freihofer testified as a
lay witness rather than as an expert witness, it is well-settled that neither lay nor expert
witnesses are permitted to testify about the veracity of another witness. State v.
Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 113 (“lay witnesses are
Highland App. No. 14CA5 7
prohibited from testifying as to another witness’s veracity”); see State v. Bowden, 11th
Dist. Ashtabula No. 2013-A-0040, 2014-Ohio-158, ¶ 43, and cases cited therein (“Ohio
appellate courts have held that it is reversible error to allow a witness to testify or
comment on the credibility of another witness”); Boston at 129, quoting State v.
Eastham, 39 Ohio St. 3d 307, 312, 530 N.E.2d 409 (H. Brown, J., concurring) (“ ‘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’ ”). Moreover, it
appears that even in the absence of the state qualifying Freihofer as an expert, in the
absence of an objection she testified as one de facto. Based on the appellant’s brief and
the content of Freihofer’s testimony, we conduct our review in the context of expert
testimony.
{¶18} In State v. Boston, supra a defendant was convicted of gross sexual
imposition for sexual contact with his two-year-old daughter. The Supreme Court
reversed the judgment affirming the conviction because the testimony of the two expert
witnesses was improperly admitted over the defendant’s objections. The trial court had
allowed a pediatrician who had examined the child to testify that the child had neither
fantasized her abuse nor been programmed to make the accusations of abuse. The
trial court had also allowed a counselor who had examined the child to testify that the
child had been telling the truth. The Supreme Court reversed the conviction by holding
that an expert may not provide an opinion of the veracity of the child victim’s statements
because it infringed upon the role of the jury to assess the credibility of the child’s out-
of-court statements when the child was unavailable to testify at trial.
Highland App. No. 14CA5 8
{¶19} Lawson claims that the trial court thus erred in permitting Freihofer’s
testimony because “expert witnesses may not vouch for the credibility of alleged victims
of sexual abuse,” citing State v. Schewirey, 7th Dist. Mahoning No. 05 MA 155, 2006-
Ohio-7054, and State v. Knight, 8th Dist. Cuyahoga No. 87737, 2006-Ohio-6437, which
applied the Supreme Court’s holding in Boston. However, Lawson’s claims lack merit.
{¶20} First, “ ‘[o]nly statements directly supporting the veracity of a child witness
are prohibited under Boston[, 46 Ohio St. 3d 108, 545 N.E.2d 1220].’ ” State v.
Cappadonia, 12th Dist. Warren No. CA2008-11-138, 2011-Ohio-494, ¶ 18, quoting
State v. Cashin, 10th Dist. Franklin No. 09AP-367, 2009-Ohio-6419, ¶ 20. Here, as in
Cappadonia and Cashin, Freihofer did not testify about the truth of F.K.’s and Z.C.’s
statements to her or vouch for their credibility.
{¶21} Instead, based on her forensic interviews of the minor children, Freihofer
concluded that medical examinations and psychiatric evaluations were “indicated”
because of the children’s complaints concerning their physical condition and their
thoughts of suicide. See State v. Sopko, 8th Dist. Cuyahoga No. 90743, 2009-Ohio-
140, ¶ 35, citing State v. Smelcer, 89 Ohio App. 3d 115, 623 N.E.2d 1219 (8th
Dist.1993) (“a social worker’s determination that [child sexual abuse] allegations are
‘indicated’ is not considered testimony regarding veracity”). And in fact, Boston does
not prohibit an expert from opining that abuse occurred. It simply precludes the expert
from giving an opinion on the veracity of the child’s statements. See Boston at 128. The
fact that Freihofer based the need for further evaluation solely upon her interviews with
the children does not, ipso facto, amount to vouching for the veracity of the children’s
statements. During the interview Freihofer had the opportunity to observe the children’s
Highland App. No. 14CA5 9
behavior and speech patterns. Often the physical reactions to questioning provide
important clues to determining whether the conduct alluded to in statements have a
basis in fact. Because Freihofer did not express an opinion about the children’s
credibility, no improper vouching occurred. State v. Davis, 116 Ohio st.3d 404, 2008-
Ohio-2, 880 N.E.2d 31, ¶ 241 (“No improper vouching occurred because the prosecutor
did not express any personal belief about the experts’ credibility”); In the Matter of J.M.,
4th Dist. Pike No. 08CA782, 2009-Ohio-4574, ¶ 29-30, overruled in part on other
grounds, In re J.M., 127 Ohio St. 3d 8, 2010-Ohio-4935, 935 N.E.2d 839.
{¶22} Moreover, Boston does not prohibit testimony that assists the fact finder in
assessing the child’s veracity. See State v. Barnes, 12th Dist. Brown No. CA2010-06-
009, 2011-Ohio-5226, at ¶ 57 (expert testimony that victim’s statements were
“consistent with inappropriate sexual contact” was admissible and did not constitute
improper vouching). Freihofer’s testimony that she felt medical and psychiatric
evaluations were “indicated” did not usurp the role of the jury. Rather it gave the jury
information that helped it make an educated determination about whether sexual abuse
had occurred. See State v. Stowers, 81 Ohio st.3d 260, 262-263, 690 N.E.2d 881
(1998)
{¶23} Third, even if we assume that Freihofer’s testimony was improper, both
F.K. and Z.C. testified at trial and were subjected to cross-examination by Lawson.
Because of the children’s detailed testimony, Lawson cannot establish that the outcome
would have clearly been different had Freihofer’s testimony been excluded. See Pence,
12th Dist. No. CA2012-05-045, 2013-Ohio-1388, at ¶ 44. The jury could have
Highland App. No. 14CA5 10
independently assessed the credibility of these witnesses and had little difficulty in
finding Lawson guilty based upon their testimony alone. Id.
{¶24} Therefore, the trial court did not commit error, much less plain error, by
permitting Freihofer to testify that her forensic interviews of F.K. and Z.C. indicated the
appropriateness of physical and psychiatric evaluations. We overrule Lawson’s first
assignment of error.
Ineffective Assistance of Counsel
{¶25} In his second assignment of error Lawson claims that if his trial counsel’s
objection to Freihofer’s testimony was inadequate to preserve the issue for appeal, his
counsel was ineffective. Criminal defendants have the constitutional right to counsel,
which includes the right to the effective assistance of counsel. Evitts v. Lucey, 469 U.S.
387, 397, 105 S. Ct. 830, 83 L. Ed. 2d 821; Article I, Section 10, Ohio Constitution.
{¶26} To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must establish (1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel's errors, the result of the proceeding would
have been different. State v. Short, 129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.2d
1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, 2014 WL
346691, ¶ 23. The defendant bears the burden of proof because in Ohio, a properly
licensed attorney is presumed competent. State v. Gondor, 112 Ohio St. 3d 377, 2006-
Ohio-6679, 860 N.E.2d 77, ¶ 23. Failure to establish either part of the test is fatal to an
Highland App. No. 14CA5 11
ineffective-assistance claim. Strickland at 697, 104 S. Ct. 2052; State v. Bradley, 42
Ohio St. 3d 136, 143, 538 N.E.2d 373 (1989).
{¶27} Based on our disposition of his first assignment of error, Lawson cannot
establish that his trial counsel was ineffective for failing to raise a specific objection that
lacked merit. He has not rebutted the presumed competence of his trial attorney.
Moreover, he has not established a reasonable probability that the outcome of the trial
would have been different because of the detailed testimonial evidence submitted by
the child victims in the case. We overrule Lawson’s second assignment of error.
IV. CONCLUSION
{¶28} Having overruled his assignments of error, we affirm the judgment of
conviction and sentence.
JUDGMENT AFFIRMED.
Highland App. No. 14CA5 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.