State v. English

[Cite as State v. English, 2014-Ohio-441.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-03-048
: OPINION
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:
JAMES ENGLISH, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2012-10-1695
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Jeffrey W. Bowling, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-
appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, James English, appeals from his convictions in the Butler
County Court of Common Pleas of two counts of gross sexual imposition. For the reasons
detailed below, we affirm the decision of the trial court.
{¶ 2} On October 24, 2012, appellant was charged under a three-count indictment for
separate instances of gross sexual imposition involving different minor females in violation of
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R.C. 2907.05(A)(4).
{¶ 3} On March 4, 2013, the same day as the jury trial was set to begin, appellant
filed a motion to sever each count in the indictment. The trial court denied appellant's motion
and the matter proceeded to trial with the state calling each of the three minor victims in its
case-in-chief.
{¶ 4} D.E. testified that she had been seven years old at the time of the sexual
contact with appellant. D.E. stated that appellant was an acquaintance of her mother who
occasionally came to the house D.E. shared with her mother and her mother's boyfriend.
D.E. testified that on May 24, 2012 she was alone with appellant in the downstairs portion of
her home. At some point, D.E. went to lie down in a back bedroom because she had been
feeling ill. D.E. further testified that a short time later, appellant came into the back bedroom
and offered to get her a drink. When appellant returned, D.E. stated that appellant bent
down and touched her in the "private" with his finger. After appellant finished touching her,
appellant asked D.E. if she was "feeling better." D.E. stated that she did not feel better and
asked appellant to leave the room. Appellant left the room and did not return.
{¶ 5} T.M. was the next witness called by the state and she testified as to an incident
of sexual contact between herself and appellant that occurred in April or May of 2012. At the
time, T.M. was ten years old and had been sleeping on the couch located in her family living
room when she was suddenly awakened by a hand that was abruptly pulled out from the
inside of her pants. When T.M. awoke, appellant was standing right beside her near the arm
of the couch. T.M. testified that appellant had been rubbing her buttocks right before she
was awakened by appellant's sudden movement.
{¶ 6} S.M. was the state's third witness to testify and stated that she was 12 years old
at the time of the allegations listed in the indictment. According to S.M.'s trial testimony, in
May of 2012, S.M. and appellant went to S.M.'s former residence to pick up some laundry for
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school. While the two were alone in the house together, S.M. alleged that appellant gave her
a hug, stuck his hand in her pants and then threw her to the ground. However, on cross-
examination, S.M. acknowledged that she had previously told police that she had been
successful in preventing appellant from reaching down her pants.
{¶ 7} At the conclusion of the trial, the jury returned guilty verdicts for the counts of
gross sexual imposition committed against the first two victims, D.E. and T.M. The jury could
not come to a unanimous decision regarding the allegations made by the third victim, S.M.
Accordingly, the trial court declared a mistrial with regard to the count related to S.M. That
charge was subsequently dismissed by the state. The trial court ultimately sentenced
appellant to a total prison term of eight years.
{¶ 8} Appellant now appeals his convictions, raising six assignments of error. For
ease of discussion, we will address the assignments of error out of order.
{¶ 9} Assignment of Error No. 5:
{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY
REFUSING TO SEVER EACH COUNT FOR TRIAL.
{¶ 11} Appellant's fifth assignment of error alleges the trial court improperly denied his
motion to sever under Crim.R. 14. Appellant contends that the cumulative effect of joining all
three offenses at trial was unfairly prejudicial. In essence, appellant argues a jury would not
have convicted him in the case at bar without the joinder of all three offenses because the
state presented no physical evidence, no eyewitnesses, and no expert testimony to
corroborate the victims' testimonies. We find no merit to this argument.
{¶ 12} The decision to grant or deny a motion to sever is a matter in the trial court's
discretion, and therefore, we review this decision under an abuse of discretion standard.
State v. Matthews, 12th Dist. Butler No. CA2012-09-175, 2013-Ohio-3482, ¶ 35. An abuse of
discretion implies that the trial court's decision was unreasonable, arbitrary, or
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unconscionable. State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 11.
{¶ 13} "The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if
the offenses charged 'are of the same or similar character.'" State v. Lott, 51 Ohio St. 3d 160,
163 (1990), quoting State v. Torres, 66 Ohio St. 2d 340 (1981). However, a defendant may
move to sever offenses that have been properly joined where it appears that joinder would be
prejudicial. Matthews at ¶ 36.
{¶ 14} To prevail on a claim that the trial court erred in denying a motion to sever, the
appellant must demonstrate: "(1) that his rights were prejudiced, (2) that at the time of the
motion to sever he provided the trial court with sufficient information so that it could weigh the
considerations favoring joinder against the defendant's right to a fair trial, and (3) that given
the information provided to the court, it abused its discretion in refusing to separate the
charges for trial." State v. Schaim, 65 Ohio St. 3d 51, 59 (1992); Rose at ¶ 13.
{¶ 15} "The state may negate a claim of prejudice in one of two ways." Rose, 2012-
Ohio-5607, at ¶ 14. "The first is through the 'other acts' test, where the 'state must
demonstrate it could have introduced evidence of the joined offenses at separate trials,
pursuant to the 'other acts' provision of Evid.R. 404(B).'" Id., citing Lott at 163. Additionally,
under the "joinder test," the state may refute a claim of prejudice by showing "that the
evidence of each crime joined at trial is simple and direct." Id., citing State v. Moshos, 12th
Dist. Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 76. By demonstrating that the evidence
is "simple and direct," the state negates any claims of prejudice and joinder will be proper.
Matthews, 2013-Ohio-3482, at ¶ 38; Rose at ¶ 14.
{¶ 16} The trial court denied appellant's motion to sever based on the following three
grounds: (1) because the motion was untimely filed, (2) because the evidence was simple
and direct as to each witness, and also (3) because the evidence was admissible under
Evid.R. 404. After consideration, we conclude the trial court did not err in denying appellant's
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motion to sever. The trial court had ample grounds to deny that motion.
{¶ 17} We agree with the trial court's finding that appellant's motion to sever was
untimely filed. A motion to sever charges in an indictment is a pretrial motion under Crim.R.
12(C)(5) and is subject to the time limitation contained in Crim. R. 12(D). State v. Bell, 3d
Dist. Seneca No. 13-12-39, 2013-Ohio-1299, ¶ 29. According to Crim. R. 12(D), "[a]ll pretrial
motions * * * shall be made within thirty-five days after arraignment or seven days before trial,
whichever is earlier." The failure to file a motion to sever in a timely fashion without any
legitimate reason for its delay has routinely been a basis for denial of a motion to sever. Bell
at ¶ 29; State v. Palmer, 7th Dist. Jefferson No. 04-JE-41, 2006-Ohio-749, ¶ 12; State v.
Montgomery, 2d Dist. Montgomery No. 22193, 2009-Ohio-1415, ¶ 16-17. Because the
record in this case reflects that appellant filed his motion to sever on the day of trial and did
not provide any legitimate reason for its delay, we conclude that the trial court did not abuse
its discretion in denying appellant's motion to sever on the basis of timeliness.
{¶ 18} However, even if appellant had timely filed his motion to sever, the trial court
would still have had grounds to deny appellant's motion. First, the evidence presented in this
case was simple and direct. Appellant was charged with three separate instances of gross
sexual imposition, each of which occurred in a separate incident against one of the three
respective victims, at a different location, and at a different time. The state presented the
testimony of each victim who provided evidence relating to her specific interactions with
appellant and recounted the alleged sexual contact giving rise to the allegations. The
remaining witness, Detective Hoover, testified as to his investigation with respect to each
alleged instance of misconduct. The offenses were separately tried and proven by the state.
The testimony produced by the state could be easily segregated by the jury and would be
unlikely to confuse their deliberations. The trial court instructed the jury that all charges must
be considered separate matters. Therefore, since the record supports the contention that the
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charges were "simple and direct," appellant cannot demonstrate that he was prejudiced by
the failure to grant his motion to sever.
{¶ 19} Finally, the trial court was also correct in noting that the evidence produced at
trial would have been admissible "other acts" evidence under Evid.R. 404. Appellant's prior
acts were relevant to show appellant's "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Evid.R. 404(B). The "other acts"
evidence introduced in this case would not have been prejudicial to the appellant since we
have already agreed with the trial court's decision that the evidence was "simple and direct."
State v. McDonald, 9th Dist. Medina No. 12CA0093-M, 2013-Ohio-4972, ¶ 32, citing Lott, 51
Ohio St. 3d at 163 ("[W]hen simple and direct evidence exists, an accused is not prejudiced
by joinder regardless of the nonadmissibility of evidence of these crimes as 'other acts' under
Evid.R. 404(B)").
{¶ 20} Accordingly, the trial court did not err in denying appellant's motion to sever.
Appellant's fifth assignment of error is therefore overruled.
{¶ 21} Assignment of Error No. 6:
{¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY
ALLOWING [D.E.] TO TESTIFY.
{¶ 23} In his sixth assignment of error, appellant argues, in substance, that D.E.
lacked the ability to adequately recollect impressions of fact. We disagree.
{¶ 24} Pursuant to Evid.R. 601, "[e]very person is competent to be a witness except * *
* children under ten years of age, who appear incapable of receiving just impressions of the
facts and transactions respecting which they are examined, or of relating them truly." It is the
duty of the trial court to conduct an examination of a child less than ten years old to
determine the child's competency to testify. State v. Tillman, 12th Dist. Butler No. CA2003-
09-243, 2004-Ohio-6240, ¶ 8. In determining whether a child under ten years old is
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competent to testify, the trial must take into consideration: "(1) the child's ability to receive
accurate impressions of fact or to observe acts about which he or she will testify, (2) the
child's ability to recollect those impressions or observations, (3) the child's ability to
communicate what was observed, (4) the child's understanding of truth and falsity and (5) the
child's appreciation of his or her responsibility to be truthful." State v. Frazier, 61 Ohio St. 3d
247, 251 (1991).
{¶ 25} A child witness under ten years old may be competent to testify even though
the child is unable to recollect all of the facts of a given situation. State v. Fry, 125 Ohio
St.3d 163, 2010-Ohio-1017, ¶ 76. The child's answers must demonstrate that the child "can
perceive and recall generally and understands the concept of truthfulness." Id. A trial court's
finding that a child under the age of ten is competent to testify shall not be disturbed, absent
an abuse of discretion. Frazier at 250-251; State v. Goins, 12th Dist. Butler No. CA2000-09-
190, 2001 WL 1525298, *4 (Dec. 3, 2001). An abuse of discretion is more than an error of
law or judgment, but instead connotes that "the trial court's decision was unreasonable,
arbitrary or unconscionable." State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, ¶ 130.
{¶ 26} In this case, D.E. was eight years old at the time of the trial. To determine if
D.E. was competent to testify, the trial court held a competency hearing before the start of
trial. During the hearing, the trial court asked D.E. a number of questions related to her
ability to recollect impressions and observations, and whether she knew the difference
between truth and falsity. After concluding the hearing, and over appellant's objection, the
trial court found that D.E. was competent to testify.
{¶ 27} Appellant argues that the trial court's decision permitting D.E. to testify was an
abuse of discretion. In support, appellant cites to statements made by D.E. during both her
competency hearing and her trial testimony. First, appellant argues that D.E. should not
have been permitted to testify because, during the competency hearing, D.E. could not recall
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what she had done the previous Monday or the name of the previous month. In addition,
appellant also argues D.E. should not have been permitted to testify because: (1) she was
unable to recall the type of clothing that appellant was wearing during the incident, (2) she
was unable to recall all of the statements that she had given during prior police interviews,
and (3) she was unable to identify the sound of her voice from a previously recorded
interview with the police.
{¶ 28} Upon review, we find the trial court did not abuse its discretion when it permitted
D.E. to testify. While it is true that D.E. had difficulty in answering some questions posed to
her by defense counsel, she was able to answer most questions appropriately. D.E.'s
testimony at the competency hearing indicated that she knew the difference between truth
and falsity and that she understood that it was important to tell the truth. D.E. was also able
to answer various other questions posed by the trial court, including the name of her school,
what grade she was in, the weather, certain dates, and her house address. For example:
THE COURT: What grade are you in?
[D.E.]: Third.
THE COURT: * * * What's your favorite subject in school?
[D.E.]: Math.
THE COURT: Math? Good for you. I was never any good at
math, but I'm glad somebody is. What's your least favorite?
[D.E.]: Science.
THE COURT: Science, okay. If I was to tell you that your favorite
subject in school is science, would that be a lie or that would [sic]
be the truth?
[D.E.]: A lie.
THE COURT: Okay. If I was to tell you that it looks like it's [sic]
really warm outside, let's go swimming out in the pool. Would I --
[D.E.]: Lie.
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THE COURT: -- be telling you a lie or the truth?
[D.E.]: Lie.
THE COURT: Okay. You understand how important it is to tell
the truth?
[D.E.]: Yes.
THE COURT: And if you don't tell the truth, do you get
punished?
[D.E.]: Yes, sir.
{¶ 29} We find the trial court heard sufficient testimony to declare D.E. competent to
testify and, thus, did not abuse its discretion in permitting her to testify. See, e.g., Tillman,
2004-Ohio-6240, at ¶ 12 (trial court did not err in permitting a five-year-old victim to testify
because "[a]lthough the victim had difficulty answering some questions, she answered most
questions appropriately"); see also State v. McNeill, 83 Ohio St. 3d 438, 443 (1998)
(upholding a trial court's decision allowing two children to testify while acknowledging "[w]hile
the children could not answer every question posed, the transcript indicates they were in fact
able to receive, recollect, and communicate impressions of fact, and appreciate the
responsibility to be truthful"). Accordingly, we overrule appellant's sixth assignment of error.
{¶ 30} Assignment of Error No. 3:
{¶ 31} DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
DETECTIVE HOOVER'S INADMISSIBLE HEARSAY AND CORROBORATION
TESTIMONY.
{¶ 32} In his third assignment of error, appellant alleges that he received ineffective
assistance of counsel because his trial counsel failed to object to the testimony of Detective
Hoover. Appellant argues that the testimony of Detective Hoover, reciting certain statements
made by D.E. and T.M. during the police investigation, constituted improper hearsay and
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corroboration testimony. After a thorough review, we conclude that appellant has failed to
establish a claim of ineffective assistance of counsel and overrule his assignment of error.
{¶ 33} "To establish a claim of ineffective assistance of counsel, a defendant must
show that his or her counsel's actions were outside the wide range of professionally
competent assistance, and that prejudice resulted by reason of counsel's actions." State v.
Ullman, 12th Dist. Warren No. CA2002-10-110, 2003-Ohio-4003, ¶ 43, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984). Accordingly, counsel's performance
will not be deemed ineffective unless (1) his counsel's performance was deficient in that it fell
below an objective standard of reasonableness, and (2) he was prejudiced by that deficient
performance in that there is a reasonable probability that, but for his counsel's deficient
performance, the outcome of his trial would have been different. State v. Russell, 12th Dist.
Butler No. CA2012-08-156, 2013-Ohio-3079, ¶ 49, citing Strickland at 687. A reasonable
probability is "a probability sufficient to undermine confidence in the outcome of the
proceeding." State v. Scott, 12th Dist. Warren No. CA2012-06-052, 2013-Ohio 2866, ¶ 16.
{¶ 34} The rule against hearsay provides that certain out-of-court statements are
inadmissible at trial unless the statement falls under one of the exceptions to the rule. State
v. Penwell, 12th Dist. Fayette No.CA2010-08-019, 2011-Ohio-2100, ¶ 11. 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).
{¶ 35} The state contends that the statements made by both D.E. and T.M. to
Detective Hoover are admissible under Evid.R. 801(D)(1)(b). Pursuant to Evid.R.
801(D)(1)(b) an out-of-court statement is not considered hearsay if "[t]he declarant testifies at
trial * * * and is subject to cross-examination concerning the statement, and the statement is *
* * consistent with declarant's testimony and is offered to rebut an express or implied charge
against declarant of recent fabrication or improper influence or motive." State v. Brown, 12th
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Dist. Butler No. CA2011-11-207, 2013-Ohio-1610, ¶ 16. The rule "permits the rehabilitation
of a witness whose credibility has been attacked by an express or implied charge that he
recently fabricated his story or falsified his testimony in response to improper motivation or
undue influence." Id.; State v. Smith, 12th Dist. Butler No. CA2009-02-038, 2010-Ohio-1721,
¶ 102.
{¶ 36} In order for this rule to apply, "the declarant must be subject to cross-
examination and the statement must be offered to rebut an accusation that the declarant lied
or was improperly influenced in [their] testimony." State v. Williams, 12th Dist. Butler No.
CA2007-04-087, 2008-Ohio-3729, ¶ 12. To be admissible, the prior consistent statement
must have been made before the existence of any motive or influence to falsify testimony.
Brown at ¶ 16; Smith at ¶ 103. "In determining whether to admit a prior consistent statement
for rebuttal purposes, a trial court should take a generous view of the entire trial setting to
determine if there was sufficient impeachment of the witness to amount to a charge of
fabrication or improper influence or motivation." Smith at ¶ 103, citing State v. Grays, 12th
Dist. Madison No. CA2001-02-007, 2001-Ohio-8679, *5.
D.E.'s prior statements to Detective Hoover
{¶ 37} During D.E.'s testimony, appellant's trial counsel repeatedly asked questions
pertaining to D.E.'s memories of the events giving rise to the allegation of gross sexual
imposition. Additionally, appellant's trial counsel asked about specific inconsistencies in prior
statements that D.E. had made to police during the investigation. For example, appellant's
trial counsel questioned D.E. about the sexual contact that appellant had with D.E.:
Q. Do you remember telling a detective at Middletown Police
Department that, "He just touched it?" Those were your words. Do you
remember that?
A. No, he didn't -- I didn't say that.
Appellant's trial counsel then played a portion of the videotaped recording of D.E.'s interview
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with the Middletown Police Department to rebut D.E.'s testimony and impeach her credibility.
{¶ 38} Following the testimony of the three victims, the state called Detective Hoover
to testify and asked whether D.E.'s statements during the police investigation had been
consistent with D.E.'s trial testimony. Detective Hoover testified:
Q. Detective, in the course of your duties, did you interview [D.E.]?
A. I did.
***
Q. Okay. And you heard [D.E.] testify today?
A. That's correct.
Q. And did this -- did [D.E.] testify consistently with what she told you
and Detective Shoemake?
A. Yes, ma'am.
Q. Could you tell us what [D.E.] said that was consistent with what she
told you and Detective Shoemake?
A. She told us that she was laying down in a bed at the house on 1819
Sherman Avenue, that [appellant] came in the room where she was at
and stuck his hand down the front of her pants -- to open her legs or
spread her legs, and she wouldn't do that. He forced her legs open, and
then continued to touch her -- what [s]he called -- her private parts.
{¶ 39} Appellant's trial counsel did not object to this testimony. On appeal, appellant
argues that the statements made by Detective Hoover were inadmissible hearsay and were
"elicited to imply a perverse and sexual nature" for appellant's conduct. We disagree.
{¶ 40} We find appellant's trial counsel was not ineffective for failing to object to the
testimony of Detective Hoover concerning D.E.'s prior statements. Pursuant to Evid.R.
801(D)(1)(b) the state could introduce prior consistent statements in order to rebut the charge
of recent fabrication. During D.E.'s cross-examination, appellant's trial counsel asked D.E.
about a prior statement made to investigators, in which she stated "[h]e just touched it." That
question related to the sexual activity at issue in the case and implied the recent fabrication
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of D.E.'s account of the incident. Further, by playing the tape recording of D.E.'s interview
with the police, appellant's trial counsel opened the door to the testimony of Detective
Hoover, in which Detective Hoover recited D.E.'s prior consistent testimony.
{¶ 41} Because appellant is unable to show any deficient performance of counsel
arising from counsel's failure to object to Detective Hoover's testimony concerning D.E.'s
prior statements, appellant has failed to support his claim of ineffective assistance of
counsel. As the Ohio Supreme Court has recognized "counsel is not deficient for failing to
raise a meritless issue." State v. Yarbrough, 104 Ohio St. 3d 1, 2004-Ohio-6087, ¶ 117, citing
State v. Taylor, 78 Ohio St. 3d 15 (1997). Therefore, we overrule appellant's third assignment
of error with respect to Detective Hoover's testimony concerning D.E.'s prior consistent
statements.
T.M.'s prior statements to Detective Hoover
{¶ 42} We reach a different conclusion with respect to the admissibility of Detective
Hoover's testimony concerning T.M.'s prior statements. Like the cross-examination of D.E.,
appellant's trial counsel also questioned T.M.'s recollection of the events giving rise to the
allegation of gross sexual imposition. However, unlike the cross-examination of D.E.,
appellant's trial counsel did not make an express or implied charge against T.M. of a recent
fabrication. Appellant's trial counsel made only one reference to a prior interview between
T.M. and the Middletown police.
Q. Do you remember talking to someone from the Middletown Police
Department?
A. I don't know.
Q. Okay. Do you remember talking with someone, a female from
Children's Hospital, the Morrison Center?
A. No, I don't remember.
After this line of inquiry, appellant's trial counsel did not expressly or impliedly charge that
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T.M. fabricated her story, nor did counsel play any of the video recorded statements made by
T.M. during the police investigation.
{¶ 43} Although appellant's trial counsel did not specifically question T.M. about any
prior statements given to police during the investigation, Detective Hoover testified about
statements made by T.M. during the course of the police investigation:
Q. Okay. Likewise, did you have the interview -- opportunity to interview
[T.M.] in this particular investigation?
A. Yes, ma'am.
Q. And you saw [T.M.] testify today?
A. Yes, ma'am.
Q. And did she testify consistently with what she told you in the
interview?
A. Yes, ma'am.
Q. What did she tell you that was consistent with what she testified to
today?
A. She stated that she was laying down in the living room at 1411
Fairmont where she was living at the time. That he came into the living
room where she was at and he stuck his hand in her pants as well.
Similar to Detective Hoover's testimony regarding D.E., appellant's trial counsel did not object
to any of the questions made by the state. On appeal, appellant argues that the statements
made by Detective Hoover concerning T.M. constituted inadmissible hearsay and were not
admissible as a prior consistent statement under Evid.R. 801(D)(1)(b). We agree.
{¶ 44} Detective Hoover's testimony regarding T.M.'s prior statements made during the
police investigation constituted improper hearsay. Appellant's trial counsel did not suggest
that T.M. fabricated her testimony, either expressly or impliedly. See, e.g., State v. Kane, 1st
Dist. Hamilton No. C-110629, 2012-Ohio-4044, ¶ 14 (implication that memory was the result
of a dreamlike hallucination or a dramatic story made up by the victim was not considered
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charge of recent fabrication). The only mention of T.M.'s prior statements relevant to
Detective Hoover's testimony came when appellant's trial counsel asked T.M. if she
"remember[ed] talking to someone from the Middletown Police Department?" T.M.
responded that she did not remember the discussion.
{¶ 45} The mere failure of T.M. to remember the events surrounding an interview with
police or hospital personnel, without anything further, does not rise to the level of implied
fabrication. Accordingly, because there is no charge of recent fabrication, the testimony of
Detective Hoover was not admissible under Evid.R. 801(D)(1)(b). Because no other hearsay
exception applies, Detective Hoover's testimony concerning T.M.'s prior statements
constituted inadmissible hearsay.
{¶ 46} Although the testimony provided by Detective Hoover concerning T.M.'s prior
statements was objectionable, we find that appellant was not prejudiced by counsel's failure
to object. This court has previously acknowledged, the "failure to make a sufficient showing
on either the 'performance' or 'prejudice' prong of the Strickland standard will doom a
defendant's ineffective assistance of counsel claim. State v. Lahmann, 12th Dist. Butler No.
2007-Ohio-1795, ¶ 11, quoting Strickland, 466 U.S. 668, at 697; see also State v. McCoy,
12th Dist. Warren No. CA2013-04-033, 2013-Ohio-4647, ¶ 21("an appellate court is not
required to examine counsel's performance under the first prong of the Strickland test if an
appellant fails to prove the second prong of prejudicial effect"). In demonstrating prejudice,
appellant must show that there is a reasonable probability that, but for counsel's deficient
performance, the result of the trial would have been different. McCoy at ¶ 21; State v.
Russell, 12th Dist. Butler No. CA2012-08-156, 2013-Ohio-3079, ¶ 49.
{¶ 47} Based on our review of the record, we find that appellant did not receive
ineffective assistance of counsel based on his trial counsel's failure to object to the testimony
of Detective Hoover concerning T.M.'s prior statements because appellant failed to prove the
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second prong of prejudicial effect under the Strickland test. Assuming that counsel should
have objected to the testimony of Detective Hoover, counsel's deficiency constituted, at most,
harmless error. See Kane, 2012-Ohio-4044 at ¶ 14; see also State v. Trusty, 1st Dist.
Hamilton Nos. C-120378, C-120386, 2013-Ohio-3548, ¶ 50.
{¶ 48} In the present case, T.M. testified in court and was subject to cross-examination
by appellant's trial counsel. The testimony provided by T.M. covered all of the elements
necessary to sustain a conviction of gross sexual imposition. Detective Hoover's testimony
concerning T.M.'s statements essentially reiterated the unrefuted testimony that was already
provided by T.M. during her direct testimony. Further, unlike during D.E.'s testimony, T.M.'s
credibility was not attacked on the basis of fabrication and T.M.'s testimony remained
consistent. As this court has previously stated, "where a declarant is examined on the same
matters as contained in impermissible hearsay statements and where admission is
essentially cumulative, such admission is harmless." State v. Tomlinson, 33 Ohio App. 3d
278, 281 (12th Dist. 1986); State v. Noles, 6th Dist. Lucas No. L-12-1310, 2013-Ohio-4088, ¶
42; Trusty at ¶ 50. Thus, even if appellant's trial counsel should have objected to Detective
Hoover's testimony, that failure does warrant reversal on the basis of ineffective assistance of
counsel.
{¶ 49} We also note that the jury does not appear to have placed undue emphasis on
Detective Hoover's testimony. For instance, the record reflects that the jury failed to convict
appellant on a third charge of gross sexual imposition involving S.M. Similar to his testimony
concerning the other victims, Detective Hoover testified that S.M.'s trial testimony had been
consistent with S.M.'s prior police interviews. Detective Hoover also testified as to the
specific allegations made by S.M. against appellant during that police interview. Despite
Detective Hoover's testimony, the jury failed to convict appellant of the charge of gross
sexual imposition involving S.M. Thus, while appellant argues that Detective Hoover's
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testimony improperly "bolstered" the statements of T.M., the record demonstrates that the
jury was able to separate each victim's testimony from Detective Hoover's testimony in
reaching its verdict.
{¶ 50} Accordingly, appellant has failed to prove that, but for Detective Hoover's
testimony concerning T.M.'s prior statements, the result of the trial would have been different.
Detective Hoover's testimony does not undermine our confidence in the outcome of the
proceeding. Detective Hoover's testimony concerning T.M. accounted for only a small
portion of the trial and reiterated testimony that was already in evidence. Because appellant
is unable to show any resulting prejudice from counsel's failure to object to Detective
Hoover's testimony, he has failed to support his claim of ineffective assistance of counsel.
{¶ 51} Appellant's third assignment of error is overruled.
{¶ 52} Assignment of Error No. 4:
{¶ 53} DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
THE STATES CLOSING ARGUMENT SINCE THE STATE OF OHIO COMMITTED
PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT.
{¶ 54} In his fourth assignment of error, appellant alleges he received ineffective
assistance of counsel because his trial counsel failed to object to statements made by the
state during closing argument. Appellant argues the state engaged in prejudicial misconduct
during closing argument when the state referred to the victims as "throw away girls" and
referenced the victims' status as poor and underprivileged. Since appellant's trial counsel did
not object to these statements during closing argument, appellant contends that he received
ineffective assistance of counsel. We disagree and overrule appellant's fourth assignment of
error.
{¶ 55} The state is entitled to a certain degree of latitude in making its concluding
remarks. State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 58. A
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court will find prosecutorial misconduct only when the remarks made during closing were
improper and those improper remarks prejudicially affected substantial rights of the
defendant. State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶ 62. "The focus of an
inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon
the culpability of the prosecutor." State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-
Ohio-4769, ¶ 56, citing State v. Vanloan, 12th Dist. Butler No. CA2008-10-259, 2009-Ohio-
4461, ¶ 32. Therefore, a finding of prosecutorial misconduct will not be grounds for reversal
unless the defendant has been denied a fair trial because of the prosecutor's prejudicial
remarks. Layne at ¶ 60.
{¶ 56} During its closing argument, the state mentioned that the three alleged victims
were underprivileged and referred to them as "throw away girls." In essence, appellant
argues that those references to the victims' poverty and family situations denied him a fair
trial by inciting the passions of the jury. As support, appellant cites to portions of the
following statements made by the state in closing argument:
Perhaps more important than the purported discrepancies or
inconsistencies is the very nature of the testimony itself and what
that testimony tells us. You heard testimony yesterday from [D.E.]
that her mother, in order to provide for the family, scraps. She
explained that that's gathering copper, stripping it, and recycling it.
You heard from [T.M.] that there was a time when her family lived in
a homeless shelter.
The evidence shows that we're dealing with children that are
underprivileged. And that maybe as a result of that, maybe not,
have suffered some educational deficits. [T.M.'s] in the fifth grade,
and when I asked her what state she lived in, she hesitated and told
me the United States.
These pieces of evidence show us a pattern. And the pattern that
they show us is that this Defendant purposely picked [D.E.], [T.M.]
and [S.M.]. Why did he do that? Why didn't we have girls in here
that were captains of the basketball team, cheerleaders, student
body presidents, or had mothers that are presidents of the PTA?
The State would suggest to you that the evidence shows that this
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Defendant selected these girls because he viewed them as easy
targets. Or in other words, kids that could be thrown away by
society. And the State would suggest to you that the reason that
that pattern of evidence is there is because the Defendant was
banking on two things.
One, that they [the victims] would want [to] tell. And two, that if they
did, nobody would believe them. He was wrong. They told. And
the State would submit to you that when you weigh the credibility of
these girls, when you look at those jury instructions, you will find
that their testimony is worthy of your belief
***
Do you believe [D.E.]? Do you believe [T.M.]? Do you believe
[S.M.]? Or do you believe that just -- these are three girls, throw-
away girls, who are just making something up about this man that is
the same in nature with no motive at all to lie.
{¶ 57} We conclude, after reviewing the record, that appellant's trial counsel was not
ineffective for failing to object to those statements made by the state during closing
argument. When taken in context, the statements clearly related to the victims' educational
deficiencies and were mentioned by the state to rebut some of the perceived inconsistencies
in the victims' testimonies. Additionally, the statements also reference a possible motivation
that appellant had in selecting these particular girls for his sexual advances. It does not
appear from the record that such statements inflamed the jury or tainted the verdict in any
way. The fact that the jury failed to convict appellant on one of the charges would seem to
counter appellant's argument.
{¶ 58} Finally, although certainly not dispositive, we note the trial court did instruct the
jury that closing arguments of counsel were not evidence. We must presume that the jury
followed the trial court's statements and, therefore, did not rely on the closing arguments in
their deliberations. Gray, 2012-Ohio-4769, at ¶ 62; Vanloan, 2009-Ohio-4461, at ¶ 38. In
conclusion, the record does not support a finding that the state committed prosecutorial
misconduct, nor that the appellant was denied a fair trial.
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{¶ 59} Based upon the foregoing, appellant is unable to support the notion that, had
his counsel objected, the objection would have been sustained by the trial court. Because the
comments were not objectionable, appellant's trial counsel was not ineffective for failing to
object to those statements. Yarbrough, 104 Ohio St. 3d 1, 2004-Ohio-6087, at ¶ 117. As
such, appellant's fourth assignment of error is overruled.
{¶ 60} Assignment of Error No. 1:
{¶ 61} THE STATE OF OHIO PRESENTED INSUFFICIENT EVIDENCE TO
CONVICT MR. ENGLISH OF GROSS SEXUAL IMPOSITION IN COUNT ONE AND TWO
OF THE INDICTMENT.
{¶ 62} Assignment of Error No. 2:
{¶ 63} APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 64} Under his first and second assignments of error, appellant argues his
convictions are based on insufficient evidence and against the manifest weight of the
evidence. We disagree.
{¶ 65} "[W]hile a review of the sufficiency of the evidence and a review of the manifest
weight of the evidence are separate and legally distinct concepts, a finding that a conviction
is supported by the weight of the evidence will be dispositive of the issue of sufficiency."
State v. Brauer, 12th Dist. Warren No. CA2012-11-109, 2013-Ohio-3319, ¶ 12; State v.
Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 34; Gray, 2012-Ohio-
4769, at ¶ 79. With that in mind, we first examine whether appellant's conviction is supported
by the manifest weight of the evidence.
{¶ 66} A manifest weight challenge concerns the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.
Gray at ¶ 78. In determining whether a conviction is against the manifest weight of the
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evidence, the court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered. State v.
Thompkins, 78 Ohio St. 3d 380, 387 (1997); Brauer at ¶ 13. "This discretionary power should
be exercised only in the exceptional case where the evidence weighs heavily against
conviction." State v. Hall, 12th Dist. Butler No. CA2012-01-014, 2013-Ohio-4427, ¶ 28; Gray
at ¶ 78.
{¶ 67} Appellant was convicted of two counts of gross sexual imposition in violation of
R.C. 2907.05(A)(4) for sexual contact occurring with both D.E. and T.M. The jury could not
reach a verdict on the allegations raised by S.M. and the trial court declared a mistrial with
respect to that count in the indictment. The charge of gross sexual imposition involving S.M.
was later dismissed by the state.
{¶ 68} The crime of gross sexual imposition is defined under R.C. 2907.05 (A)(4) and
provides:
[n]o person shall have sexual contact with another, not the
spouse of the offender * * * when * * * the 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.
Sexual contact includes "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." R.C. 2907.01(B).
{¶ 69} While an essential element of the offense of gross sexual imposition is that the
act is for the "purpose of sexual arousal or gratification" there is no requirement that there be
direct testimony regarding sexual arousal or gratification. State v. Meredith, 12th Dist.
Warren No. CA2004-06-062, 2005-Ohio-062, ¶ 13. "Whether the touching was performed
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for the purpose of sexual arousal or gratification is a question of fact to be inferred from the
type, nature, and circumstances of the contact." State v. Williams, 12th Dist. Warren No.
CA2012-08-080, 2013-Ohio-3410, ¶ 33, quoting State v. Gesell, 12th Dist. Butler No.
CA2005-08-367, 2006-Ohio-3621, ¶ 25. In making this determination, the trier of fact is
permitted to infer what the defendant's motivation was in making the physical contact with the
victim. Meredith at ¶ 13; Williams at ¶ 33.
{¶ 70} Count one of the indictment involved appellant's actions directed towards D.E.
The state called D.E. to testify in its case-in-chief. During her testimony, D.E. stated that she
was seven years old at the time of the incident and had never been married to appellant.
D.E. recounted the day of the incident alleged in the indictment and stated that while she had
been lying down in the back bedroom, appellant came into the room and touched her
"private," which she described as the part of her body that pees.
{¶ 71} Count two of the indictment involved the appellant's actions directed towards
T.M. During her testimony, T.M. stated that she was 11 years old at the time of the incident
and had never been married to appellant. T.M. testified that, on the date of the incident, she
was suddenly awakened from a nap when she felt a hand being pulled out from inside her
pants. T.M. recounted for the jury that the hand had been touching her buttocks and clearly
testified that appellant was the perpetrator.
{¶ 72} The record shows that the jury's verdict convicting appellant of two counts of
gross sexual imposition was not against the manifest weight of the evidence. Both victims
named appellant as the perpetrator and identified him during trial. D.E. and T.M both
testified that they were under 13 years old at the time of the conduct and were not married to
appellant. Both victims' respective testimony described the relevant incident in which an
erogenous zone of their bodies had been touched. See R.C. 2907.01(B).
{¶ 73} While appellant is correct in asserting that the state must prove an offender
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acted with the "purpose of sexual arousal or gratification" in order to be found guilty of gross
sexual imposition, appellant fails to note that such a purpose may be inferred by the fact-
finder. Meredith, 2005-Ohio-062 at ¶ 13; Williams, 2013-Ohio-3410 at ¶ 33. In this case, the
jury could reasonably find, based on the victims' testimonies, that the touching was done for
the purpose of sexual arousal or gratification.
{¶ 74} Based on the evidence presented at trial, we conclude the jury's verdict was not
against the weight of the evidence and was therefore supported by sufficient evidence.
Appellant's third and fourth assignments of error are overruled. This case came down to the
credibility of the victims' testimonies. Although there were some inconsistencies in the
victims' testimonies, the jury, as trier of fact, was in the best position to weigh the credibility of
the witnesses. As such, the state presented sufficient evidence from which the jury could
reasonably conclude that appellant was guilty of the charges of gross sexual imposition
involving D.E. and T.M.
{¶ 75} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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