State v. Mincey

[Cite as State v. Mincey, 2023-Ohio-472.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220061
TRIAL NO. B-1701856-A
Plaintiff-Appellee, :
: O P I N I O N.
vs.
:
JATONE MINCEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 17, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of John D. Hill and John D. Hill, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} After a jury trial, defendant-appellant Jatone Mincey was found guilty
of the rape and sexual battery of his stepdaughter, H.S. In this appeal, Mincey argues
in five assignments of error that the trial court made several evidentiary errors during
the trial and that the cumulative effect of those alleged errors denied him a fair trial.
For the reasons set forth below, we overrule Mincey’s assignments of error and affirm
the judgment of the trial court.
I. Procedural History
{¶2} Mincey was indicted in April 2017 on ten counts of rape, ten counts of
sexual battery, and one count of gross sexual imposition. Following numerous delays,
his case was tried to a jury in December 2021. The jury returned guilty verdicts on all
ten counts of rape and ten counts of sexual battery and a not-guilty verdict on the
gross-sexual-imposition count. The sexual-battery counts were merged with the rape
counts, and Mincey was sentenced to 11 years in prison for each rape count. The trial
court ordered the sentences to run consecutively, for a total prison sentence of 110
years. This appeal timely followed.
II. Factual History
{¶3} H.S. was 15 years old in late 2016. She lived with her mother, Detra
Mincey (“Detra”), and Detra’s husband, defendant-appellant Jatone Mincey. H.S. was
a special-needs student, and she had been going to school unbathed and with her
clothing unwashed. In December 2016, a classroom aide became concerned and
alerted the Hamilton County Department of Job and Family Services (“JFS”). A JFS
caseworker learned that the Mincey home did not have running water and on arrival
noticed a very foul odor emanating from the house.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} This was not JFS’s first encounter with the Mincey household, as Detra
had lost custody of H.S. previously.1 Based on JFS records, the caseworker was
concerned that H.S. was living in the home with Mincey. Given the choice between
asking Mincey to leave the house or having H.S. removed, Detra agreed to have JFS
place H.S. with Detra’s sister, H.S.’s aunt, on an “out-of-home safety plan.”
{¶5} The caseworker learned from H.S.’s teachers that H.S. had reported
being afraid to sleep at night because of Mincey. Suspecting possible sexual abuse, the
caseworker referred H.S. to the Mayerson Center for Safe and Healthy Children
(“Mayerson Center”) for a forensic interview. At her first interview at the Mayerson
Center in December 2016, H.S. denied that any abuse had occurred. However, in
March 2017, H.S. told her aunt and her aunt’s family that Mincey and Detra had
sexually abused her.
{¶6} H.S. was taken for a second interview at the Mayerson Center. During
the interview, H.S. detailed a long history of sexual abuse at the hands of Mincey and
Detra. The abuse that is the subject of the indictment started in January 2015. H.S.
explained that “[t]oo many times to count,” Detra and Mincey would engage in
intercourse and other sexual activity in H.S.’s presence, and they would encourage or
force H.S. to participate. When Detra was present, she would not permit Mincey to
engage in vaginal intercourse with H.S., despite his requests to do so. Detra permitted
or encouraged H.S. to engage in fellatio with Mincey, in addition to other sexual
touching. When Detra was absent, either physically or because she was asleep or
1 Detra's testimony at trial suggested that H.S. was removed because Mincey was violent toward
Detra, and implied that he may have been violent toward H.S. However, the few JFS records in the
record seem to indicate that H.S. was in JFS custody from 2013-2015 due to sexual-abuse
allegations against Mincey, and that the return of custody to Detra was contingent on Detra not
letting H.S. be around Mincey. The JFS file also suggests there was a court order requiring Mincey
to stay away from H.S.
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OHIO FIRST DISTRICT COURT OF APPEALS
passed out from alcohol or drug use, Mincey would follow through on his stated desire
to rape H.S. through vaginal intercourse.
{¶7} At trial, H.S. testified about her experience of being abused by Mincey
and Detra. Detra also testified about her role in H.S.’s abuse.2 H.S’s aunt testified
about the family’s history and H.S.’s initial disclosure of the abuse. The jury heard
testimony from the classroom aide who referred H.S. to JFS about her observations as
to the changes in H.S.’s appearance and behavior during the relevant timeframe. The
state presented testimony from Ohio Bureau of Criminal Investigation (“BCI”)
forensic experts about samples of stained pillows and carpeting taken from the Mincey
home that contained DNA from Mincey and Detra, but not from H.S. The jury also
heard from a BCI computer expert and a police detective regarding the web browsing
history from Mincey’s cell phone.
{¶8} Additionally, the state presented expert testimony from Rachel Bayer,
the Mayerson Center forensic interviewer who conducted the March 2017 interview
with H.S., and Dr. Kathi Makoroff, the Mayerson Center pediatrician who conducted
a physical exam of H.S. in March 2017. Bayer testified about H.S.’s interview and
explained why a sexual-assault victim might delay in disclosing the abuse. The jury
was shown the video recording of the interview. Makoroff testified about H.S.’s
physical exam, which was normal, and the reasons why a sexual-assault victim might
have a normal physical exam after a delayed disclosure.
{¶9} Mincey called a single witness, the Mayerson Center forensic
interviewer who conducted the first interview with H.S., during which H.S. had denied
that any abuse had occurred. A video of that interview was shown to the jury.
2Detra was indicted on ten counts of complicity, in violation of R.C. 2923.02(A)(2). She ultimately
pled guilty to one count of complicity and was sentenced to eight years in prison.
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III. Analysis
{¶10} Mincey raises five assignments of error for our consideration. First,
Mincey argues that the trial court erred by permitting the state to present inadmissible
other-acts evidence that Mincey allegedly committed one or more uncharged rape
offenses against H.S. while they were outside of the state. Second, Mincey argues that
the trial court improperly allowed the state to admit evidence of his pornography
search history. Third, Mincey argues that the trial court erred by preventing him from
inquiring into specific instances when H.S. may have fabricated allegations of sexual
misconduct. Fourth, Mincey argues that the trial court erred by allowing the state’s
expert witnesses to vouch for H.S.’s credibility. And finally, Mincey argues that the
cumulative effect of these errors violated his constitutional right to a fair trial. We
address each of these arguments in turn.
Other-Acts Evidence
{¶11} Mincey’s first assignment of error is that the trial court erred by
permitting the state to present evidence of uncharged, wrongful acts Mincey allegedly
committed. Prior to trial, the state filed a notice of its intent to use evidence that
Mincey had sexually abused H.S. in July 2016 while Mincey, Detra, and H.S. were in
Memphis, Tennessee, and in nearby Tunica Resorts, Mississippi. This activity was not
charged in this case and took place outside of Hamilton County.
{¶12} When reviewing the admission of other-acts evidence under Evid.R.
404(B), “we follow a three-step framework: (1) the evidence must be relevant to the
particular purpose for which it is offered, Evid.R. 401; (2) the other acts must be
offered for a legitimate purpose and not to show propensity to criminal conduct,
Evid.R. 404(B); and (3) the danger of unfair prejudice must not substantially outweigh
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OHIO FIRST DISTRICT COURT OF APPEALS
the probative value of that evidence, Evid.R. 403.” State v. McDaniel, 2021-Ohio-724,
168 N.E.3d 910, ¶ 17 (1st Dist.), citing State v. Graham, 164 Ohio St.3d 187,
2020-Ohio-6700, 172 N.E.3d 841, ¶ 72. The first two steps “pose legal questions that
we review de novo.” Id., citing State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440,
161 N.E.3d 651, ¶ 22. The third step constitutes a matter of judgment for the trial court,
“which we review for abuse of discretion.” Id., citing Hartman at ¶ 22.
{¶13} In conducting this analysis, “courts must scrutinize the proponent’s
logic to determine exactly how the evidence connects to a proper purpose without
relying on any intermediate improper-character inferences.” Hartman at ¶ 23. In this
analysis, “the first step is to determine whether the evidence in question is
relevant * * * to a particular nonpropensity purpose.” State v. Armstead, 1st Dist.
Hamilton No. C-200417, 2021-Ohio-4000, ¶ 25. Second, that nonpropensity purpose
must be one that “is actually in dispute.” Id. Finally, the court must ensure that even
where the proffered evidence is admissible under Evid.R. 404(B), the evidence must
not be “more prejudicial than probative,” in compliance with Evid.R. 403(A).
Hartman at ¶ 29. Admission of other-acts evidence carries an inherent risk that the
jury will nonetheless draw the “ ‘forbidden propensity inference,’ ” implicating exactly
the risks that Evid.R. 403(A) seeks to mitigate. Id. at ¶ 33, quoting United States v.
Gomez, 763 F.3d 845, 857 (7th Cir.2014). Therefore, “when such evidence is only
slightly probative of a nonpropensity theory but has a high likelihood of unfairly
prejudicing the defendant or confusing or misleading the jury, the evidence must be
excluded.” Id. at ¶ 33.
{¶14} In its notice of intent to use the other-acts evidence, the state argued
that such evidence was admissible under Evid.R. 404(B) as evidence of “motive,
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OHIO FIRST DISTRICT COURT OF APPEALS
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident and the Defendant’s scheme, plan or system.”
{¶15} Mincey argued in reply that such evidence is not probative of any
purpose allowed under Evid.R. 404(B), and further that the probative value of the
evidence “is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or capable [sic] of misleading the jury.”
{¶16} After a hearing on the matter, the trial court ruled that testimony
regarding out-of-state sexual abuse would be admitted as evidence of Mincey’s plan.
The trial court issued a limiting instruction to the jury on the use of this other-acts
evidence:
If you find that the evidence of another crime is true and that the
defendant committed it, you may consider that evidence only for the
purpose of deciding whether it proves plan. You may consider evidence
of other acts to determine whether it is linked to present offenses
because the acts were carried out in furtherance of the same overall
plan. Evidence of a plan or common design refers to a larger
criminal * * * scheme of which the crime charged is only a portion. You
may consider evidence of a plan if it supports one of the following
possible conclusions: the occurrence of the act in issue; the identity of
the person who committed the act; or the existence of the required
mental state in the actor.
{¶17} Mincey argues that admitting evidence of the uncharged acts for the
purpose of proving a plan is inappropriate. Mincey characterizes the state’s argument
as being that Mincey had a plan to repeatedly rape H.S., and the other-acts evidence
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OHIO FIRST DISTRICT COURT OF APPEALS
helps demonstrate this plan. Mincey argues that the implication that he “planned” to
repeatedly rape H.S. is little more than propensity given another name, and propensity
is exactly the purpose for which other-acts evidence is inadmissible.
{¶18} The state’s primary argument on appeal is that the evidence was
appropriate as evidence of an “inextricably intertwined” act. The state argues that the
trip to Memphis took place during the indictment period, with alleged acts of rape
before, during, and after the trip, and therefore the out-of-state acts were
“contemporaneous with” the charged acts. Further, the state argues that without the
evidence of the out-of-state acts, there would be an unexplained gap in the victim’s
testimony. Thus, the state contends that the evidence was necessary to give a complete
narrative of the charged crimes.
{¶19} Other-acts evidence may be admitted when those acts form part of the
“immediate background of the alleged act,” as part of the res gestae of the charged
crime. State v. David, 1st Dist. Hamilton No. C-210227, 2021-Ohio-4004, ¶ 16. There
are occasions when the other-acts evidence is so inextricably intertwined with the
charged conduct that its admission is necessary to give the complete picture of what
occurred. For example, in David, the defendant, David, was charged with domestic
violence against his long-term romantic partner, Cook. However, the trial court also
allowed testimony that David had first attacked Cook’s daughter and then attacked
Cook while Cook attempted to shield her daughter from David’s attack. Id. at ¶ 18. We
held that such testimony about the daughter was not subject to exclusion under
Evid.R. 404(B) because it was “ ‘inextricably intertwined’ ” with the charged conduct
and was “ ‘necessary to give the complete picture of what occurred.’ ” Id. at ¶ 19,
quoting State v. Wilkinson, 64 Ohio St.2d 308, 318, 415 N.E.2d 261 (1980). Cook could
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OHIO FIRST DISTRICT COURT OF APPEALS
not explain the sequence of events without including the background of David’s attack
on her daughter.
{¶20} In the case at bar, the sexual assault in Tennessee is not part of the
“immediate background” nor is it “inextricably intertwined” with the charged conduct.
The story of Mincey’s repeated sexual abuse of H.S. is entirely coherent without the
reference to the out-of-state acts. Those acts are not necessary to explain or place in
context the charged conduct, nor do they form the “immediate background” of the
charged activity. Where the charged conduct took place over the course of nearly two
years, the absence of narrative covering a particular few days would not create any
perceptible “gap” in H.S.’s testimony. The testimony about the out-of-state acts
provides no additional context other than to suggest more of the same types of sexual
assault that Mincey was charged with committing in Hamilton County.
{¶21} The state also argues that the evidence is part of an overall narrative
showing Mincey’s plan to deceive Detra, who permitted sexual touching of H.S. and
oral sex, but would not allow Mincey to engage in vaginal intercourse with H.S. The
state argues that the out-of-state acts form part of Mincey’s plan to hide his vaginal
intercourse with H.S. from Detra.
{¶22} This conception of “plan” does not comport with the Supreme Court’s
instruction on Evid.R. 404(B) in Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161
N.E.3d 651. The purpose of admitting evidence of a common scheme or plan is that
such evidence “generally supports one of the following possible conclusions: ‘(1) the
occurrence of the act in issue; (2) the identity of the person who committed the act; or
(3) the existence of the required mental state in the actor.’ ” Hartman at ¶ 41, quoting
Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events,
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OHIO FIRST DISTRICT COURT OF APPEALS
Section 9.1 (2d Ed.2019). Permissible other acts might include the theft of an
instrumentality used in the charged crime or acts that combine to demonstrate motive.
Id. at ¶ 42. The Hartman court stressed that, “plan evidence should show that the
crime being charged and the other acts are part of the same grand design by the
defendant.” Id. at ¶ 46.
{¶23} The state has not alleged that or explained how Mincey had a “grand
design.” We therefore conclude that the evidence regarding the out-of-state sexual-
abuse allegations was neither relevant to a nonpropensitity purpose, nor was it offered
for a legitimate, nonpropensity purpose. Accordingly, it was error for the trial court to
admit evidence regarding the out-of-state sexual-abuse allegations. However, we also
conclude that this error was harmless.
{¶24} In evaluating the effect of evidence improperly admitted under Evid.R.
404(B), the court “must consider both the impact of the offending evidence on the
verdict and the strength of the remaining evidence after the tainted evidence is
removed from the record.” State v. English, 1st Dist. Hamilton No. C-180697,
2020-Ohio-4682, ¶ 48, citing State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052,
24 N.E.3d 1153, ¶ 33. “A ‘strong case’ may require reversal if the evidentiary error is
combined with the prosecutor’s emphasis on the improperly admitted evidence,
resulting in ‘blatant prejudice.’ ” Id., quoting Morris at ¶ 31-32. If the remaining
evidence, after excising the improperly admitted propensity evidence, is
“overwhelming” then the improper admission of other-acts evidence may be deemed
“harmless beyond a reasonable doubt.” Id.{¶25} The state made only one, brief reference to the uncharged, out-of-state
acts in closing argument, referring to H.S.’s ability to testify about details of individual
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OHIO FIRST DISTRICT COURT OF APPEALS
instances when Mincey raped her, even though she didn’t recall particular dates. The
testimony regarding the out-of-state acts is relatively minor in the overall narrative of
the witnesses. The remaining evidence presented stands on its own, without the need
for any reference to the out-of-state acts. We conclude that the admission of the other-
acts evidence was harmless error. Accordingly, we overrule Mincey’s first assignment
of error.
Cell Phone Web-Search History
{¶26} Mincey’s second assignment of error is that the trial court erred by
permitting the state to present evidence of web-search history, which came from a cell
phone that was seized from Mincey’s home around the time of his arrest. A Springfield
Township police detective testified that the web history on the cell phone showed a
history of pornography searches including “father-daughter references,” “threesome
references of two females performing oral sex,” “stepdad gets lucky,” and “mother and
daughter.”
{¶27} Mincey argues that evidence of his pornography search activity is
irrelevant to any matter in question and should have been excluded under Evid.R. 402.
He claims that even if it is relevant, it should have been excluded for its potentially
prejudicial impact under Evid.R. 403(A). Mincey does not argue that this evidence
should have been excluded pursuant to Evid.R. 404(B).
{¶28} In response, the state argues that the purpose of the evidence was to
show Mincey’s state of mind. Mincey’s defense at trial was that he did not do what H.S.
and Detra accused him of. The state argues that the search history content was directly
related to what Mincey was charged with doing to H.S., illustrated Mincey’s state of
mind, and was relevant to rebutting Mincey’s claim that such conduct never happened.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Evid.R. 401. Evidence that is not
relevant is inadmissible. Evid.R. 402. Even if the evidence is relevant, it is “not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).
{¶30} Because admissibility of evidence is generally within the discretion of
the trial court, this court reviews a trial court’s decisions on evidentiary issues for an
abuse of discretion. In re A.K., 1st Dist. Hamilton No. C-210178, 2021-Ohio-4199, ¶ 17,
citing State v. Buck, 2017-Ohio-8242, 100 N.E.3d 118, ¶ 109 (1st Dist.). “Abuse of
discretion occurs when ‘a court exercis[es] its judgment, in an unwarranted way, in
regard to a matter over which it has discretionary authority.’ ” State v. Austin, 1st Dist.
Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5, quoting Johnson v.
Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
{¶31} Here, there is a striking similarity between Mincey’s conduct with H.S.
and the pornography search history presented at trial. The evidence shows that the
pornography was sought out and viewed by someone interested in sexual activities
involving a man and his stepdaughter and between a mother and her daughter.
Displaying an interest in pornography depicting such acts has at least some tendency
to make it more probable that the person committed such closely similar acts. Accord
State v. Eichorn, 5th Dist. Morrow No. 02 CA 953, 2003-Ohio-3415, ¶ 33 (holding that
computer evidence of child pornography, clearly establishing that the viewer was
interested in such subject matter, was relevant to the allegation that the defendant
sexually abused his minor granddaughter); State v. VanVoorhis, 3d Dist. Logan No.
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OHIO FIRST DISTRICT COURT OF APPEALS
8-07-23, 2008-Ohio-3224, ¶ 73 (applying Eichorn to conclude that evidence of
pornography that “exclusively involved men and boys engaged in both oral and anal
intercourse” was admissible where the older, male defendant was charged with
engaging in substantially similar conduct with a minor boy).
{¶32} Mincey argues that any probative value of the web-search evidence is
outweighed by its prejudicial effect. “ ‘Logically, all evidence presented by a prosecutor
is prejudicial, but not all evidence unfairly prejudices a defendant.’ ” State v. Lee, 1st
Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 12, quoting State v. Wright, 48 Ohio
St.3d 5, 8, 548 N.E.2d 923 (1990). Relevant evidence that is otherwise admissible is
“excluded only when the risk of unfair prejudice, confusion of the issues, or misleading
the jury substantially outweighs its probative value.” (Emphasis sic.) Id., citing
Evid.R. 403. “Unfair prejudice is that quality of evidence which might result in an
improper basis for a jury decision. Consequently, if the evidence arouses the jury’s
emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish,
the evidence may be unfairly prejudicial.” State v. Crotts, 104 Ohio St.3d 432,
2004-Ohio-6550, 820 N.E.2d 302, ¶ 24.
{¶33} Here, the evidence was not presented to arouse the jury’s emotions
against Mincey. The web searches do not demonstrate an unusual sexual desire
unrelated to the case at bar. They also do not invite the jury to conclude that if Mincey
has one unusual and unrelated sexual interest, he may also be interested in obtaining
sexual gratification from his own stepdaughter. Rather, the web searches are evidence
that Mincey is specifically interested in sexual conduct between stepfather and
stepdaughter and mother and daughter. As such, the potentially prejudicial effect of
the evidence cannot be said to be unfair or misleading.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} Mincey is correct that such evidence alone would not be sufficient to
convict, but that is not the standard for relevance. Relevant evidence must only have
“any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable.” Evid.R. 401. Based on
the similarity of the acts underlying the criminal charge and the evidence presented of
Mincey’s pornography searches, it was not unwarranted for the trial court to conclude
that such evidence has some tendency to make it more probable that Mincey
committed the acts that H.S. alleged.
{¶35} The state’s evidence of Mincey’s pornography search history was
relevant. The potential for unfair prejudice did not substantially outweigh the
probative value of the evidence. Therefore, the trial court did not abuse its discretion
in admitting this evidence. Mincey’s second assignment of error is overruled.
Inquiry into Prior Allegations of Sexual Misconduct
{¶36} Mincey has maintained as his defense that he did not do the acts
charged and that H.S. fabricated the allegations. As part of this defense, Mincey sought
to present evidence at trial that H.S. had fabricated prior allegations of sexual
misconduct against others in the past. In particular, Mincey sought to elicit testimony
regarding allegations H.S. had made that other children had sexually abused her,
which were disproven or that she later recanted. Mincey also sought to elicit testimony
that H.S. had threatened a former foster mother that she would fabricate sexual-abuse
allegations against the foster mother’s husband and other foster children in order to
have them removed from the home. Mincey argues that at trial he was only permitted
to explore H.S.’s character for truthfulness to the extent that she had, from time to
time, told “little, white lies,” as is common in children.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} We review the trial court’s decisions on the admissibility of evidence for
an abuse of discretion. See State v. Netherland, 132 Ohio App.3d 252, 262, 724 N.E.2d
1182 (1st Dist.1999), citing State v. Boggs, 63 Ohio St.3d 418, 421, 588 N.E.2d 813(1992).
{¶38} Evidence relating to false allegations of sexual abuse implicate both the
rape-shield statute, R.C. 2907.02(D), and evidentiary rules pertaining to the character
of a witness under Evid.R. 608(B). The Supreme Court analyzed the relationship
between the rape-shield statute and Evid.R. 608(B) in State v. Boggs, 63 Ohio St.3d
418, 588 N.E.2d 813 (1992). “False accusations, where no sexual activity is involved,
do not fall within the rape shield statute.” Boggs at 421.
{¶39} Where the defendant seeks to cross-examine a victim on prior, false
allegations, the court must hold an in-camera hearing to determine whether such
testimony is protected by the rape-shield statute. Id. at 421-422. “If the trial court
determined that the accusations were entirely false (that is, that no sexual activity had
been involved) the trial court would then be permitted to exercise its discretion in
determining whether to permit defense counsel to proceed with cross-examination of
the alleged victim.” Id. at 421. However, where the trial court ascertains that “any
sexual activity took place, i.e., an actual rape or consensual sex * * * the rape shield
statute prohibits any further inquiry into this area.” Id. at 423. Extrinsic evidence of
prior, false allegations is inadmissible since it is wholly collateral to any issue in the
trial. Id. at 422.
{¶40} Mincey asserts that records he obtained from JFS support his claim that
H.S. has a history of fabricating allegations of sexual abuse and that he was entitled to
cross-examine H.S. as to specific instances of fabricated allegations. Mincey claims
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OHIO FIRST DISTRICT COURT OF APPEALS
that although the relevant JFS records were proffered in the trial court, not all those
records were included in the record on appeal.3
{¶41} It is unclear whether the court held an in-camera hearing or just
conducted an in-camera review of the records. Nevertheless, sidebar discussions by
the parties documented in the trial transcript indicate that the court conducted some
sort of review and ruled that the specific instances of conduct that Mincey sought to
explore on cross-examination of H.S. were protected by the rape-shield statute. Id.
{¶42} It is emphatically the duty of the appellant to ensure that the record on
appeal is complete and that any material necessary to the appellant’s assignment of
error is contained within it. App.R. 9; Treasurer v. Scott, 1st Dist. Hamilton No.
C-200438, 2022-Ohio-1467, ¶ 16. Where portions of the record necessary to the
resolution of the assigned error are missing, the appellate court has no choice but to
presume regularity of the lower court’s proceedings. Scott at ¶ 16, citing Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).
{¶43} Because portions of the record necessary to the resolution of this
assignment of error are missing, we must presume that the trial court followed the
proper procedure and reasonably concluded that exclusion of the evidence was
appropriate. Mincey’s third assignment of error is overruled.
Improper Expert Testimony
{¶44} In his fourth assignment of error, Mincey argues that expert witnesses
from the Mayerson Center were improperly permitted to vouch for H.S.’s credibility
in her allegations against Mincey. Mincey argues that Rachel Bayer, a social worker
and forensic interviewer, and Dr. Kathi Makoroff, a pediatrician and the medical
3 Appellate counsel did not move to supplement the record on appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
director of the Mayerson Center, exceeded the proper bounds of expert testimony by
offering their opinions that H.S. had, in fact, been the victim of sexual abuse based
solely on statements made by H.S. at her interview. In effect, Mincey claims that the
Mayerson Center experts testified that H.S. had been abused because they believed her
statements that she had been abused.
{¶45} “We review the admission of expert testimony for an abuse of
discretion.” State v. Svoboda, 2021-Ohio-4197, 180 N.E.3d 1277, ¶ 89 (1st Dist.), citing
State v. Howard, 1st Dist. Hamilton Nos. C-190451 and C-190452, 2020-Ohio-5072,
¶ 23.
{¶46} We have previously held that “[a]n expert may not offer an opinion as
to the truth of the child’s statements. But testimony which provides ‘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,’ is permitted.” Svoboda at ¶ 93, quoting State v.
Stowers, 81 Ohio St.3d 260, 263, 690 N.E.2d 881 (1998). Expert testimony is
permissible to explain why a normal physical exam is not inconsistent with a history
of sexual abuse or what behaviors are consistent with such abuse. Id. at ¶ 93.
{¶47} The portions of Bayer’s testimony and report to which Mincey objects
state that “This information is consistent with inappropriate sexual contact and
concerning for abuse.” (Emphasis added.) Bayer further testified that her opinion “was
based on the information that was provided by [H.S.], that inappropriate sexual
contact had occurred.” Bayer did not state that she believed that abuse had occurred,
nor did she testify that she believed H.S. was telling the truth. This portion of Bayer’s
testimony is appropriate, and therefore it was not an abuse of discretion for the trial
court to admit this testimony.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶48} Mincey also argues that Bayer stated her opinion that “children never
falsely allege sexual abuse.” Such an opinion, if offered, would be cause for concern.
However, Bayer did not make that precise claim. Rather, she offered the following
testimony on cross-examination:
Q: Okay. In your experience, okay, have you found that sometimes
children make up stories?
A: Not – not in my experience.
Q: So you’ve never had any child make up a story of abuse?
A: My role is to collect information. I’m not part of anything that occurs
afterward unless I’m asked to testify. So I don’t get involved in ongoing
investigations or what happens after that fact. We go based on what the
kids tell us during the interview.
Q: Do you know – do you think children make up stories of abuse?
A: It’s not – I don’t believe children lie about abuse.
Q: Not at all?
A: Not typically, no.
Q: Okay. And you don’t think they can be [led] by adults to make up
claims?
A: I’m sure that could happen.
Q: Ok. Do you think they exaggerate things that happen?
A: Possibly.
Q: Do you think they say things that they have fantasies about?
A: Possibly.
Q: Okay. Do you think they would say something so that they could stay
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OHIO FIRST DISTRICT COURT OF APPEALS
with a certain relative or family member?
A: I think anything’s possible.
In context of this colloquy, it can hardly be said that Bayer’s testimony reflected an
opinion that “children never falsely allege sexual abuse.” Further, any potential harm
done by Bayer’s general statements that she believes children do not typically lie about
abuse was immediately addressed through effective cross-examination. It was not an
abuse of discretion for the trial court to admit this testimony.
{¶49} For similar reasons, Mincey objects to Makoroff’s testimony regarding
her medical report. On direct examination, Makoroff testified from her report:
So then I state based on this evaluation, so that is not just my medical
examination, I believe that there’s a high likelihood that abuse has
occurred. This diagnosis is made because of the history that [H.S.]
provided. And so that included the history as part of the forensic
interview that had – that was performed on the same day and the history
that was – that [H.S.] provided.
So that history coupled with the normal exam, and knowing that the vast
majority of children after a history of sexual abuse, especially in [H.S.]’s
case when the abuse was not acute. It hadn’t just – the last event hadn’t
just occurred, will have a normal exam. Putting the whole evaluation
together and knowing that the normal exam doesn’t mean that sexual
abuse didn’t occur, my impression was that there was a high likelihood
that abuse had occurred.
{¶50} On cross-examination, Mincey elicited further detail on Makoroff’s
findings:
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OHIO FIRST DISTRICT COURT OF APPEALS
Q: Okay. And so then when you make your conclusion of a high
likelihood that abuse has occurred, this is not based on objective
evidence?
A: It’s not – I said it wasn’t based on examination, but it’s based on the
forensic interview. Which I would say is, you know, this – you know, I
don’t know if I would call – I don’t know how I would qualify it, but it is
based on something.
Q: It’s based on [H.S.]’s statement to Rachel Bayer?
A: Yes.
{¶51} Admissibility of a medical opinion that abuse has occurred “turns on the
foundation of the expert’s opinion.” State v. Britta, 11th Dist. Lake No. 2009-L-017,
2010-Ohio-971, ¶ 69. To be admissible, the opinion must be founded on something
more than merely the unsupported allegations of the child-victim. Id. Accord State v.
Knight, 8th Dist. Cuyahoga No. 87737, 2006-Ohio-6437, ¶ 32; State v. Burrell, 89
Ohio App.3d 737, 746, 627 N.E.2d 605 (9th Dist.1993). Such a finding does not require
particular physical evidence, but may rely on the expert’s observation of the child’s
demeanor or other indicia that, based upon the expert’s training and experience, tend
to show that abuse has occurred. Britta at ¶ 69, 76 (permitting expert testimony based
on training and experience, interview and physical exam of child-victim, and
behavioral history provided by child’s mother). Accord State v. Williams, 5th Dist.
Stark No. 2021CA00081, 2022-Ohio-2245, ¶ 95 (permitting expert testimony based
on education and experience, child-victim’s statements, and onset of bedwetting and
dysuria). Expert testimony based on no more than the child’s statements is
“tantamount to permitting the expert to testify as to the child’s veracity.” Britta at ¶ 70,
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OHIO FIRST DISTRICT COURT OF APPEALS
quoting State v. Johnson, 8th Dist. Cuyahoga No. 90961, 2008-Ohio-6657, ¶ 32.
Accord Knight at ¶ 32; Burrell at 746.
{¶52} Makoroff’s testimony was not limited to a finding that H.S.’s evaluation
was consistent with abuse but rather that Makoroff personally believed that there was
a “high likelihood” that the abuse actually occurred. Makoroff testified that her
opinion was based on H.S.’s normal physical exam and H.S.’s Mayerson interview with
Bayer. Thus, it is difficult to interpret Makoroff’s testimony as anything other than a
statement of Makoroff’s personal belief in the veracity of H.S.’s statement. This goes
beyond merely contextualizing why an abuse victim might have a normal physical
exam or why she might be reluctant to report the abuse and constitutes improper
vouching for H.S.’s credibility.
{¶53} The harmless-error analysis discussed above likewise applies here. The
state did not mention Makoroff’s testimony at all in closing. In light of the other
evidence against Mincey and the lack of emphasis the state placed on this testimony,
the effect of Makoroff’s impermissible vouching for H.S.’s credibility is minimal.
Therefore, the error was harmless. See State v. Lukacs, 188 Ohio App.3d 597,
2010-Ohio-2364, 936 N.E.2d 506, ¶ 33 (1st Dist.). Accordingly, we overrule Mincey’s
fourth assignment of error.
Cumulative Error
{¶54} In his fifth and final assignment of error, Mincey argues that the
cumulative effect of the multiple assigned errors denied him a fair trial. Under the
doctrine of cumulative error, numerous instances of trial court error that are
individually harmless may, through their cumulative effect, deprive the defendant of
the constitutional right to a fair trial. State v. Gatewood, 2021-Ohio-3325, 177 N.E.3d
21OHIO FIRST DISTRICT COURT OF APPEALS
693, ¶ 52 (1st Dist.), citing State v. Leach, 150 Ohio App.3d 567, 2002-Ohio-6654, 782
N.E.2d 631, ¶ 57 (1st Dist.). In order to show cumulative error, the defendant must
“demonstrate that a reasonable probability exists that the outcome of the trial would
have been different absent the alleged errors.” State v. Williams, 1st Dist. Hamilton
No. C-180291, 2020-Ohio-1228, ¶ 54, citing State v. DeMarco, 31 Ohio St.3d 191, 509
N.E.2d 1256 (1987), paragraph two of the syllabus.
{¶55} Here, the trial court erred by admitting H.S.’s testimony regarding
uncharged, other acts of sexual abuse, and by permitting an expert witness to vouch
for the credibility of the victim. However, the prejudicial impact of these errors was
minimal. The testimony regarding the uncharged instances of sexual assault was not
lengthy, was elicited in the context of the victim’s narrative of years of sexual abuse,
and was not materially different in nature from the numerous occasions of sexual
assault charged in the indictment. H.S.’s testimony was substantially corroborated by
her mother, who was an active participant in much of Mincey’s sexual abuse of H.S.
Lastly, the improper expert testimony was minimal and the state did not mention it in
closing argument.
{¶56} Based on the few, insubstantial errors, and the weight of the remaining
evidence against Mincey, we determine that Mincey has not shown a “reasonable
probability” that the outcome would have been different had none of the otherwise-
harmless errors occurred. Thus, the cumulative effect of the identified errors did not
deny Mincey his constitutional right to a fair trial. Mincey’s fifth assignment of error
is overruled.
IV. Conclusion
{¶57} For the foregoing reasons, we affirm the judgment of the trial court.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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