The opinion
[Cite as State v. Bright, 2024-Ohio-2803.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112799
v. :
RICKEY M. BRIGHT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: July 25, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-670918-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michael Lisk, Assistant Prosecuting
Attorney, for appellee.
The Goldberg Law Firm, LLC, Michael J. Goldberg, and
Adam Parker, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Rickey Bright (“Bright”), appeals his
convictions for one count of rape of a child under the age of ten, two counts of gross
sexual imposition, two counts of child endangering, one count of public indecency,
and one count of domestic violence. The trial court sentenced Bright to 25 years to
life in prison. Bright now appeals. For the reasons set forth below, we affirm his
convictions, but remand to the trial court for the sole purpose of correcting the
sentencing entry.
I. Facts and Procedural History
In June 2022, Bright was charged in a ten-count indictment that
included two counts of rape of a victim under the age of ten; two counts of gross
sexual imposition; two counts of endangering children; one count of pandering;
one count of disseminating matter harmful to juveniles; one count of public
indecency; and one count of domestic violence. The charges arose from allegations
by Bright’s two minor daughters, K.B. and N.B., who reported that while staying at
their dad’s apartment on May 19, 2o22, Bright had vaginal sex with K.B., and
forced K.B. to perform oral sex on him. In addition, K.B. and N.B. alleged that
Bright grabbed both of their buttocks. Then, Bright assaulted their mother
(“Mom”) when she confronted him about the allegations.
In October 2022, the matter proceeded to jury trial. K.B. testified
that she was eight years old, she lived with her mother and sister, and they had just
moved back from California. She testified that her dad’s name was Rick, but she
would not identify Bright in the courtroom. She stated that the last time she saw
her dad she was seven years old, and that this made her sad and she missed him.
K.B. testified that she still loved him. At first, K.B. denied that anything happened
with Bright but eventually acknowledged that she woke up in the morning and had
to brush her teeth “[b]ecause the icky stuff was in my mouth.” (Tr. 296.) She
testified that it came from Bright’s “private part” and that he rubbed it all over her
face and it dripped in her mouth. (Tr. 297.) When asked if he put it in her mouth
she replied, “[y]eah.” (Tr. 297.) She testified that her toothbrush was orange. She
also referred to her dad’s “private parts” as his “peanuts,” and the “icky stuff” as
“gooey stuff.” (Tr. 296 and 298.) K.B. denied anything else happened.
N.B. testified that she was twelve years old at the time of trial, and
that she lived with her mother and sister, K.B., and that they had just moved back
from California. N.B. testified that when the incident happened, she was at her
dad’s house with her sister. She testified that it happened in the bedroom, that the
three of them were on the bed together and that she was “halfway asleep, and I
heard [K.B.] saying, ‘stop’ and [Bright] was pulling her up. . . . [to] his private part.”
(Tr. 307.) N.B. testified that her dad made K.B. swallow, “white stuff,” that came
out of her dad’s “private part,” and K.B. was sitting down when it occurred. (Tr.
315-316.) N.B. testified that she fell back to sleep. She testified that her dad
squeezed her buttocks and she felt uncomfortable. N.B. would not identify Bright
in the courtroom.
The girls’ mother testified that she had been in a relationship with
Bright since 2007 and that they married in 2017. She testified that Bright is both
girls’ father and identified him in the courtroom. She stated that they started living
separately in 2019, but the girls would often stay with Bright. On May 19, 2022,
the girls were staying with Bright at his apartment on Bosworth Avenue in
Cleveland, Ohio. Mom testified that when they returned home Bright stayed the
night, and in the morning, when Bright was sleeping, K.B. told her “‘[m]ommy,
daddy told me to do it like this.’ She didn’t — she’s young. She does not know the
terms, but she’s using hand gestures.”1 (Tr. 339.) Mom said that she was shocked
and that “[K.B.] should know nothing about that.” (Tr. 339.) She testified that she
knew K.B. was not lying because “that’s exactly how he likes it.” (Tr. 339.) Mom
testified that she called her mother and then she called the police. She stated that
she confronted Bright who said the girls were lying and then Bright started hitting
her. Mom said that he hit her in the face and the ear. The police arrived and then
she took the girls to the hospital to be examined and then to the child-advocacy
center to be interviewed.
The sexual assault nurse examiner (“SANE nurse”) from University
Hospitals Rainbow Babies and Children’s Hospital that examined both girls
testified. She read into the record the “Assault Narrative” provided by each girl on
the date of their exams. (State’s exhibit Nos. 3 and 4.) K.B.’s narrative asserted
that her dad made her “suck” and “touch” his penis; that nothing came out; that
she was sleeping at the time it happened; that she sleeps with her mouth open; and
that her sister told her what happened. (State’s exhibit No. 3.) N.B.’s narrative
alleged that her dad “touched my bottom but he did way more bad stuff to my
sister.” N.B. stated, “I was fake sleeping and he, my dad, rubbed his ‘private part’
1 Although Mom demonstrated the hand gesture for the jury, the gesture is not
described for the record.
on [my] sister’s face and he was forcing her — he put his ‘private part’ in [my]
sister’s private part. She was telling him to stop but my dad is strong[.]” (State’s
exhibit No. 4.)
The social worker from Cuyahoga County Division of Children and
Family Services that conducted the forensic interviews of both girls testified. The
interviews were played for the jury. (State’s exhibit Nos. 7 and 8.)
In K.B.’s interview, she told the social worker that she and her sister
were sleeping at their dad’s house when their dad “made me suck his ‘peanuts’. . . .
He made me put my hand on his ‘peanuts’, and he picked up his ‘peanuts’ and
rubbed it all over my face.” (State’s exhibit No. 7.) K.B. told the social worker that
“he put it [peanuts] in my mouth and he was holding my. nose.” K.B. said that she
was asleep, that her sister observed what happened and told her. K.B. stated that
she woke up with “nasty stuff” in her mouth. She stated that she rinsed her mouth
out with mouthwash. K.B. stated that her dad squeezed her “bottom” over her
clothes. She also described Bright’s penis in the interview. On an anatomical
drawing of a male and female, K.B. identified “peanuts” as the male penis, and K.B.
circled all the locations where she was touched, including her hand, face, mouth,
and vagina. (State’s exhibit No. 5.)
In N.B.’s interview, she told the social worker that she, her sister,
and their dad slept in the same bed and “I faked like I was asleep, and my dad did
horrible stuff to my sister. . . . I just wanted to see what he was going to be doing
but I found out he was doing bad stuff to my sister.” (State’s exhibit No. 8.) N.B.
said she observed her dad rubbing his “private part” on her sister’s face and
“forcing my sister to do stuff.” N.B. said her sister was awake and K.B. told her dad
to “stop.” N.B. said she observed her dad put his “peanuts” in [K.B.’s] mouth and
in her “private part.” N.B. said K.B. was sitting when this happened. N.B. said she
fell asleep and then her dad touched N.B.’s “bottom” over her clothes. (State’s
exhibit No. 8.)
The forensic DNA analyst from Cuyahoga County Regional Forensic
Science Laboratory testified as an expert witness (“DNA expert”). She testified that
K.B.’s pajamas and toothbrush were submitted for DNA testing. The results
indicated that Bright’s DNA matched a sperm fraction that was found on K.B.’s
pajama shirt and toothbrush.
Bright, who is 60 years old, testified on his own behalf and denied that
any sexual conduct occurred. Bright’s testimony implied that the girls’ mom
orchestrated these allegations because they were fighting about her bringing other
men around the girls, and she wanted to move the girls to Arizona.
The jury found Bright guilty of one count of rape of a child under the
age of ten (fellatio), two counts of gross sexual imposition, two counts of child
endangering, one count of public indecency, and one count of domestic violence.
The trial court sentenced Bright to 25 years to life in prison. The sentencing
judgment entry states that the court imposed a sentence of life with the possibility
of parole after a minimum of 25 years and a maximum of 37.5 years on Count 1
pursuant to the Reagan Tokes Law.
Bright appeals and raises the following assignments of error for
review:
Assignment of Error I: Appellant received ineffective assistance of
counsel, where trial counsel did not object to testimony offered in
violation of Crim.R. 16(K), failed to raise the competency of an eight-
year-old witness, and failed to object to improper statements of the
prosecutor in closing argument.
Assignment of Error II: The trial court plainly erred by permitting
expert testimony in violation of Crim.R. 16(K).
Assignment of Error III: The trial court plainly erred by failing to
conduct a voir dire of K.B. to determine her competency to testify.
Assignment of Error IV: Cumulative error deprived appellant of a
fair trial.
Assignment of Error V: Appellant’s convictions are against the
sufficiency of the evidence.
Assignment of Error VI: Appellant’s convictions are against the
manifest weight of the evidence.
Assignment of Error VII: The trial court erred in applying the
Reagan Tokes law to a life sentence.
II. Law and Analysis
The first three assignments of error will be addressed together
because the arguments and law are intertwined. Under these assignments of error,
Bright maintains that his defense counsel was ineffective for three reasons: (1) he
failed to object to the expert testimony of the SANE nurse, the social worker, and the
DNA analyst; (2) he failed to challenge the competency of K.B.; and (3) he failed to
object to improper comments made during the State’s closing argument. Bright also
argues that the court committed plain error when it allowed the SANE nurse, the
social worker, and the DNA analyst to provide expert testimony. Additionally, he
alleges that the trial court committed plain error when it failed to conduct a
competency hearing of K.B.
A. Standard of Review – Ineffective Assistant of Counsel and
Plain Error
To establish ineffective assistance of counsel, appellant must
demonstrate that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v.
Trimble, 2009-Ohio-2961, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687,
(1984). The failure to prove either prong of this two-part test makes it unnecessary
for a court to consider the other prong. State v. Madrigal, 2000-Ohio-448, citing
Strickland at 697; State v. Giguere, 2023-Ohio-4649, ¶ 28 (8th Dist.).
“‘The failure to object to error, alone, is not enough to sustain a claim
of ineffective assistance of counsel.’” State v. Dix, 2023-Ohio-4123, ¶ 32 (8th Dist.),
quoting State v. Holloway, 38 Ohio St.3d 239, 244 (1988). However, the failure to
object waives all but plain error. Crim.R. 52(B); State v. Rogers, 2015-Ohio-2459,
¶ 28.
To constitute plain error, there must be: (1) an error, i.e., a deviation
from a legal rule, (2) that is plain or obvious, and (3) that affected substantial rights,
i.e., affected the outcome of the trial. State v. Pratts, 2016-Ohio-8053, ¶ 34 (8th
Dist.), citing State v. Barnes, 2002-Ohio-68. As the Supreme Court clarified in
Rogers, the accused is “required to demonstrate a reasonable probability that the
error resulted in prejudice — the same deferential standard for reviewing ineffective
assistance of counsel claims.” Id. at ¶ 22, citing United States v. Dominguez Benitez,
542 U.S. 74, 81-83, (2004); State v. Thomas, 2017-Ohio-8011, ¶ 33. Nevertheless,
even if the plain-error standard is met, courts should only notice it “with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio 2d. 91 (1978), at paragraph three of
the syllabus.
B. Expert Testimony Verses Lay Testimony
1. The SANE Nurse’s Testimony
Bright argues that the SANE nurse improperly provided expert
testimony without being qualified as an expert or providing an expert report in
accordance with Crim.R. 16(K), which requires exclusion of expert testimony if an
expert report is not provided 21 days prior to trial. State v. Boaston, 2020-Ohio-
1061, ¶ 55. Specifically, Bright complains that the SANE nurse offered opinions as
to the typical manner of disclosure of child sexual-assault victims — how, when, and
why they may or may not disclose. He contends that defense counsel was ineffective
when he did not object to this testimony and the trial court committed plain error
by allowing the testimony, because it bolstered K.B. and N.B.’s credibility. In
support of his argument, Bright relies on State v. McGhee, 2017-Ohio-5773 (11th
Dist.) and State v. Harris, 2018-Ohio-578 (8th Dist.). Bright’s reliance, however,
on McGhee and Harris is misplaced.
In McGhee, the issue involved a non-treating physician’s expert
testimony regarding delayed disclosures and lack of physical findings in sexual
assaults. The State provided an expert report a few days before the trial. The
Eleventh District held that the expert’s testimony should have been excluded in
accordance with Crim.R. 16(K) because it was not provided 21 days before trial,
stating that “[t]he purpose of Crim.R. 16(K) is to prevent surprise, trial by ambush.”
McGhee at ¶ 19-21.
In Harris, the appellant complained that the social worker, who was
qualified as an expert, improperly vouched for and unfairly bolstered the child-
victim’s testimony when the social worker testified that she “did not have any
concerns” with the victim being “untruthful” and that the victim disclosed
information that was “a grooming kind of activity,” and that a child abuser is
typically someone the child knows. This court held that although it is impermissible
for an expert witness to offer her opinion as to the truth of the child’s statements, it
is permissible for testimony, “which is additional support for the truth of the facts
testified to by the child, which assists the fact finder in assessing the child’s veracity.”
Harris at ¶ 42-43. We noted that the child victim testified and was subject to cross-
examination and concluded that the trier of fact was able to ascertain the credibility
of the victim, and that the court did not abuse its discretion by qualifying the social
worker as an expert and admitting her testimony. Id. at ¶ 44.
The State argues that the SANE nurse testified as a lay witness in
accordance with Evid.R. 701, which provides that “if the witness is not testifying as
an expert, the witness’ testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.” Therefore, the State contends that an expert report
was not required under Crim.R. 16(K).
In support of its argument, the State relies on State v. Belle, 2019-
Ohio-787 (8th Dist.). In Belle, the appellant argued that the SANE nurse testified as
an “expert” regarding the effect of trauma on a victim’s memory without being
qualified as an expert. This court disagreed, noting that before asking her questions
about trauma and memory, the prosecutor elicited information about her training
and experience regarding the “neurobiology of trauma,” the effect of trauma on the
brain, and how she had seen that manifest in sexual-assault victims. Id. at ¶ 40-41.
We concluded that the SANE nurse’s testimony was permissible lay-witness
testimony because “[t]he state had laid a foundation demonstrating that she had a
sufficient amount of experience and training and her testimony here was based on
her personal knowledge and experience.” Id. at ¶ 48.
In the instant case, the testimony was elicited from the examining
SANE nurse who explained to the jury, based on her experience, that there are
several reasons why a child may not want to disclose abuse, including fear that they
may get in trouble, not having the words to describe what happened to them, lack of
understanding that what happened was wrong, or fear of not being believed. She
testified that children may not disclose for days, weeks, or months after the abuse
happens. Lastly, she testified that children often disclose the least invasive act first,
and once they feel safe sharing, disclose further information. This testimony was
general in nature and not pertaining to K.B. or N.B. specifically.
In addition, prior to this testimony, the SANE nurse detailed her
education and credentials, including that she is the pediatric forensic program
coordinator at University Hospitals Rainbow Babies and Children’s Hospital; she
has been trained as a SANE nurse for over 12 years; she has performed nearly 1,000
exams; and she has trained many nurses and physicians over the years on how to
perform forensic sexual-assault exams.
We find that this case is similar to Belle and conclude that the SANE
nurse’s testimony was permissible lay-witness testimony because the State laid a
foundation demonstrating that the SANE nurse had sufficient experience and
training, and that her testimony was based on her personal knowledge and
experience. Because the SANE nurse’s testimony was properly admitted,
Crim.R. 16(K) was not violated; counsel’s failure to object was not deficient
performance; and the trial court did not commit plain error by allowing the
testimony.
2. The Social Worker’s Testimony
Bright argues that the social worker also provided expert testimony
without supplying an expert report in violation of Crim.R. 16(K). He specifically
complains that the social worker testified regarding “active” and “inactive” stages of
disclosure, and how in the “active” stage, children will disclose abuse, but in the
“inactive” stage they may recant their prior disclosure. The social worker testified
that the children were in the “active” stage when she met with them. (Tr. 390-391.)
Bright argues that his defense counsel should have objected to this testimony, and
it was plain error for the court to allow the testimony. The State contends that it was
permissible lay-witness testimony. Again, we must first determine whether the
social worker provided lay or expert testimony before we determine if Crim.R. 16(K)
was violated.
In a similar case, State v. Mathis, 2019-Ohio-3654 (8th Dist.), the
defendant argued that the sex-abuse social worker improperly provided expert
testimony regarding the manner in which sexually abused children disclose their
abuse, and that the testimony was improperly used to bolster the victim’s testimony.
This court noted that before offering her opinion, the social worker briefly
summarized her education and credentials, which included specialized sexual-abuse
training in interviewing children, 22 years in the sexual-abuse department and
investigation into approximately 2,000 cases. This court found that the social
worker’s testimony “that it is ‘pretty common’ for sexually abused children to
disclose the abuse in a ‘long-term disclosure’” was based on her firsthand experience
and helpful to determine a fact at issue in the case, and thus permissible lay-witness
testimony. Id. at ¶ 63, see also State v. Sellers, 2022-Ohio-581 (11th Dist.),
(concluding that testimony by a social worker “about the manner in which sexually
abused children disclose the nature of their abuse based on her experience with such
cases,” is admissible lay opinion testimony.), Id. at ¶ 31, quoting Mathis at ¶ 61-63.
Here, prior to the testimony complained of, the social worker testified
that she was a sex abuse intake worker for Cuyahoga County Division of Children
and Family Services for six years and had been trained in forensic interviewing of
alleged child victims. She testified that she has investigated hundreds of sex-abuse
cases and interviewed hundreds of alleged child victims.
Likewise, we find that the social worker’s testimony was permissible
lay-witness testimony because the State laid a foundation demonstrating that she
had sufficient experience and training and that her testimony was based on her
personal knowledge and experience. Because the social worker’s testimony was
properly admitted lay-witness testimony, Crim.R. 16(K) was not violated; counsel’s
failure to object was not deficient performance; and the trial court did not commit
plain error by allowing the testimony.
3. The DNA Expert’s Testimony
Bright argues that although the DNA analyst was qualified as an
expert and Bright was provided with the DNA reports (State’s exhibit Nos. 1 and 2),
the expert testified outside the scope of her report when she explained the process
of “differential extraction” because this process was not specifically addressed in her
report. As a result, Bright contends that defense counsel was deficient when he
failed to object to this testimony, and the court committed plain error when it
allowed the testimony. We find Bright’s arguments unpersuasive.
Here, Bright was provided with two DNA reports, as well as the
forensic DNA expert’s Curriculum Vitae, prior to trial in accordance with
Crim.R. 16(K)’s 21 day requirement. The reports set forth the items tested for the
presence of DNA and the results of the DNA testing. (State’s exhibit Nos. 1 and 2.)
Crim.R. 16(K) governs expert witnesses and expert reports, and it states:
An expert witness for either side shall prepare a written report
summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert’s
qualifications. The written report and summary of qualifications shall
be subject to disclosure under this rule no later than twenty-one days
prior to trial, which period may be modified by the court for good cause
shown, which does not prejudice any other party. Failure to disclose
the written report to opposing counsel shall preclude the expert’s
testimony at trial.
We note that Crim.R. 16(K) requires a written report summarizing an
expert witness’s testimony, findings, analysis, conclusions, or opinions, not a
detailed itemization of the expert’s testimony. Indeed, the purpose of Crim.R. 16(K)
is to avoid unfair surprise by providing notice to the opposing side so the party has
the opportunity to challenge the expert’s findings, analysis, or qualifications.
Boaston, 2020-Ohio-1061, ¶ 48.
In State v. Thompson, 2021-Ohio-3184 (1st Dist.), the appellant
argued that the trial court erred by allowing the Hamilton County Crime Lab drug
analyst, who tested and identified the substances recovered from Thompson’s
person upon arrest, to present expert testimony without providing an adequate
expert report. Thompson argued that the “cursory summary of data” contained in
the one-paged “Official Crime Laboratory Report” that described the substances
tested, the weight of each substance, and the identity of the substances should not
be considered a Crim.R. 16(K) report. The First District Court disagreed finding that
the expert’s opinion “was confined to describing and identifying the four substances
she tested; her report reflects all of this information.” Id. at ¶ 38. The court held
that the one-page report complied with Crim.R. 16(K).
Similarly, in this case, a review of the transcript and State’s exhibit
Nos. 1 and 2 reveals that the DNA expert’s testimony was confined to describing the
processes used to obtain the DNA results set forth in the reports provided. The
expert explained “differential extraction” and testified that “everywhere we say
‘epithelial fraction’ or ‘sperm fraction’ [in the report], that means the item went
through the ‘differential extraction’ [process].” (Tr. 411-412.) A review of the reports
discloses that “epithelial fraction” and “sperm fraction” are listed multiple times
throughout both reports, which we find is sufficient notice to the defense. This
notice allowed the defense an opportunity to challenge the expert’s findings,
analysis, or qualifications, and the defense counsel in this case did cross-examine
the DNA expert regarding the processes and the results. Therefore, we conclude that
the DNA expert’s testimony did not go beyond the scope of the DNA reports. She
merely explained the process by which the results were obtained.
Because the expert testimony was not beyond the scope of the DNA
reports provided to defense, Crim.R. 16(K) was not violated; counsel’s failure to
object was not deficient performance; and the trial court did not commit plain error
by allowing the testimony.
C. Competency of a Witness
Bright alleges that it was plain error for the trial court not to conduct
a competency hearing before eight-year-old K.B testified, because she was clearly
incompetent to testify. He also argues that he received ineffective assistance of
counsel when his defense counsel failed to request a hearing on K.B.’s competency.
The State argues that K.B. was competent to testify and the State conducted what
amounted to a voir dire of K.B.’s competency at the beginning of her testimony.
Evid. R. 601 requires that “[e]very person is competent to be a witness
except as otherwise provided in these rules.” Although prior versions of the rule
contained a provision expressly dealing with children under ten years old, the
current rule does not. State v. Azali, 2023-Ohio-4643, ¶ 11-13, (8th Dist.), citing
State v. Haywood, 2023-Ohio-1121, ¶ 21 (7th Dist.).
Nevertheless, R.C. 2317.01 states: “All persons are competent
witnesses except those of unsound mind and 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.” (Emphasis added.)
Because of this, the Supreme Court of Ohio has held that a “trial court must conduct
a voir dire examination of a child under ten years of age to determine the child’s
competence to testify.” State v. Maxwell, 2014-Ohio-1019, ¶ 100. In making its
competency determination, the Supreme Court of Ohio has directed trial courts to
consider the following factors:
(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, 251-252 (1991).
Although it is preferred for the trial court to conduct a competency
hearing before allowing children under the age of ten to take the stand, it is not
automatically plain error.2 State v. Crenshaw, 2020-Ohio-4922, ¶ 61-62 (8th Dist.),
see also, Warrensville Hts. v. Thomas, 2001 Ohio App. LEXIS 3724 (8th Dist.
Aug. 1, 2001); State v. Morgan, 31 Ohio App.3d 152 (1st Dist. 1985).
Both parties contend that State v. Pridgett, 2016-Ohio-687 (8th
Dist.) supports their respective positions. In Pridgett, this court found no error
when the child victim testified after the prosecutor and judge conducted what
amounted to a voir dire of her competency at the beginning of her testimony. This
court applied the Frazier factors to the child’s testimony finding that “she was able
to testify with great detail and clarity about how Pridgett touched her, using
anatomically correct dolls. She was able to receive those impressions of fact and
recollect them. She testified as to the difference between the truth and a lie, giving
examples of both. She also testified that it was bad to lie, and that she was not
allowed to lie thus, appreciating her responsibility to be truthful. She was able to
2 Generally, appellate courts review a trial court’s competency determination
under an abuse of discretion standard. State v. Grahek, 2003-Ohio-2650, ¶ 22 (8th
Dist.). However, because defense counsel failed to object, we review under the plain-error
standard.
give a detailed description of her room, the items contained in the room, and even
the lock on the door of her bedroom. [The child] was able to communicate and relate
her understanding of the truth and falsity.” Id. at ¶ 13.
Here, before K.B. testified, the court swore her in and said:
THE COURT: Do you know how to pinkie swear? Do you know what
to tell the truth is?
THE WITNESS: Yeah.
THE COURT: Can you pinkie swear with me you’ll tell the truth, okay?
THE WITNESS: Yes.
THE COURT: Okay, thank you. You may inquire.
(Tr. 291.)
The State inquired as to her first and last name and K.B. provided a
response to both. Then the State asked where she lived.
THE WITNESS: We live out here now, but I think tomorrow we are
going to go back.
THE STATE: Where is “Back”?
THE WITNESS: Back to Arizona — no, back to California.
THE STATE: California, okay.
THE STATE: How old are you, [K.B.]?
THE WITNESS: Eight.
THE STATE: Eight? When is your birthday?
THE WITNESS: I don’t know.
THE STATE: You don’t know? Okay. Have you met me before?
THE WITNESS: (No verbal response.)
THE STATE: Okay. Is that a “Yes”?
THE WITNESS: Yes.
THE STATE: Yeah. Do you remember my name?
THE WITNESS: (No verbal response.)
THE STATE: That’s okay. I’m Amanda, okay? I’ve got some questions.
[K.B.], what is your mommy’s name?
THE WITNESS: [Provides Mom’s name]
THE STATE: And what’s your daddy’s name?
THE WITNESS: Rick.
THE STATE: Rick? That’s your daddy’s name? And who do you live
with now?
THE WITNESS: My mom and my sister.
THE STATE: Did you ever live with daddy?
THE WITNESS: (No verbal response.)
THE STATE: Yeah?
THE WITNESS: Yeah.
THE STATE: How long ago?
THE WITNESS: I don’t know.
THE STATE: You don’t know?
(Tr. 291-293.)
K.B. went on to say that the last time she was with her dad was when
she was seven, it was warm outside, and she had just finished school. She did not
know the difference between a “good touch” or a “bad touch.” (Tr. 293.) At first, she
denied seeing her dad’s “private part,” the State then said, “I know this is hard, okay,
but you’ve got to tell the truth.” (Tr. 295-296.) K.B. did not respond. Eventually,
K.B. relayed some of what she originally reported to the SANE nurse, and the social
worker.
After reviewing K.B.’s testimony, we cannot say that K.B. was
competent to testify. Neither the State nor the court established the child’s ability
to receive accurate impressions of fact or to observe acts about which she would
testify; the child’s ability to recollect those impressions or observations; the child’s
ability to communicate what was observed; the child’s understanding of truth and
falsity; or the child’s appreciation of her responsibility to be truthful. Nevertheless,
the inquiry does not end there, we must still decide if allowing K.B. to testify
prejudiced Bright so as to deprive him of a fair trial.
In this case, K.B.’s statements to the SANE nurse were read into the
record, and K.B.’s interview with the social worker was played for the jury. (State’s
exhibit Nos. 3 and 7.) Both statements gave a detailed account of K.B.’s accusations,
far more detailed than her testimony. Consequently, we cannot say that Bright was
prejudiced by her testimony. If anything, K.B.’s testimony helped Bright obtain an
acquittal of the vaginal rape charge. Because we find that Bright was not prejudiced
by K.B.’s testimony, we cannot say defense counsel was ineffective or the trial court’s
error in not conducting a competency hearing rose to the level of plain error.
D. Closing Argument
Lastly, Bright argues that his defense counsel was ineffective for
failing to object to the State’s improper comment, “in this case, I would argue there
is no reasonable doubt. None has been presented to you.” (Tr. 613.) Bright argues
that this statement improperly implies that Bright bears the burden to prove
reasonable doubt and in essence the State committed prosecutorial misconduct.
Again, we note that “[t]he failure to object to error, alone, is not
enough to sustain a claim of ineffective assistance of counsel.” Dix, 2023-Ohio-4123,
at ¶ 13 (8th Dist.), quoting Holloway, 38 Ohio St.3d at 244. Furthermore, a
prosecutor has wide latitude in closing argument and is free to comment on what
the evidence has shown and reasonable inferences that can be drawn from that
evidence. State v. Harris, 2017-Ohio-2751, ¶ 84 (8th Dist.). However, a prosecutor
must avoid any declarations, claims, or averments that are deliberately calculated to
mislead a jury. Parma v. Perotti, 2024-Ohio-1359, ¶ 8 (8th Dist.), citing State v.
Maurer, 15 Ohio St.3d 239 (1984). An allegation of prosecutorial misconduct in
closing argument must be reviewed to determine whether any remarks were
improper and, if so, whether they prejudicially affected Bright’s substantial rights.
A conviction can only be reversed on the grounds of prosecutorial misconduct if the
effect of the misconduct permeated the entire trial and Bright has demonstrated that
but for the prosecutor’s improper statements, he would have prevailed at trial.
Broadview Hts. v. Thomas, 2023-Ohio-4645 (8th Dist.).
Here, the State’s comment — “in this case, I would argue there is no
reasonable doubt. None has been presented to you” — is arguably improper.
However, the instructions on reasonable doubt and the State’s burden of proof were
read to the jury multiple times throughout trial. Further, when reviewing the
statement in the context of the whole trial, we cannot say that but for this improper
statement Bright would have prevailed at trial. Therefore, the failure to object did
not prejudice Bright.
For the reasons set forth above, we conclude that Bright’s defense
counsel was not deficient, and the trial court did not commit plain error.
Accordingly, Bright’s first, second, and third assignments of error are
overruled.
E. Cumulative Error
Under Bright’s fourth assignment of error, he argues that if the errors
complained of in the first three assignments of error, standing alone, do not call for
reversal of his conviction, cumulatively, they deprived Bright of a fair trial. We
disagree.
Under the doctrine of cumulative error, a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of the errors does not individually
constitute cause for reversal. State v. Allen, 2016-Ohio-102, ¶ 53, citing State v.
Garner, 1995-Ohio-168. However, the doctrine of cumulative error is inapplicable
when the alleged errors are found to be harmless or nonexistent. Id.; State v.
Brown, 2003-Ohio-5059, ¶ 48. Because this court has found Bright’s arguments
with regard to his other assignments of error unpersuasive, the cumulative-error
doctrine does not apply.
Accordingly, Bright’s fourth assignment of error is overruled.
F. Sufficiency and Manifest Weight of the Evidence
In his fifth and sixth assignments of error, Bright argues that K.B.’s
testimony and statements made to the SANE nurse and the statements made to the
social worker were inconsistent with each other and thus his convictions are against
the sufficiency of the evidence and the manifest weight of the evidence. We disagree.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 2009-Ohio-
3598, ¶ 12 (8th Dist.). An appellate court’s function when reviewing sufficiency is to
determine “‘whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.’” State v. Leonard, 2004-Ohio-6235,
¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
With a sufficiency inquiry, an appellate court does not review whether
the State’s evidence is to be believed but whether, if believed, the evidence admitted
at trial supported the conviction. State v. Starks, 2009-Ohio-3375, ¶ 25 (8th Dist.),
citing State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. A sufficiency of the
evidence argument is not a factual determination, but a question of law. Thompkins
at 386.
“While the test for sufficiency requires a determination of whether the
prosecution has met its burden of production at trial, a manifest weight challenge
questions whether the prosecution has met its burden of persuasion.” Bowden,
supra, citing Thompkins, supra. “When considering a manifest-weight claim, a
reviewing court must examine the entire record, weigh the evidence, and consider
the credibility of witnesses.” Id., citing State v. Thomas, 70 Ohio St.2d 79, 80 (1982).
The court may reverse the judgment of conviction if it appears that the factfinder
“‘“clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed, and a new trial ordered.”’” Id., quoting Thompkins at
387, quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st Dist. 1983). A judgment
should be reversed as against the manifest weight of the evidence “only in the
exceptional case in which the evidence weighs heavily against the conviction.” Id.,
quoting Martin.
“‘Challenges to the sufficiency of the evidence based upon instances
of inconsistent testimony, memory defects, and the like are witness credibility issues
which are properly resolved by the trier of fact.’” State v. Parke, 2023-Ohio-1144,
¶ 16-17 (8th Dist.), quoting State v. Nichols, 2013-Ohio-3898, ¶ 13 (5th Dist.).
Further, “[a] defendant is not entitled to reversal on manifest weight grounds merely
because certain aspects of a witness’ testimony are inconsistent or contradictory.”
State v. Williams, 2024-Ohio-838, ¶ 54 (8th Dist.), quoting Flores-Santiago, 2020-
Ohio-1274, ¶ 40 (8th Dist.).3 Finally, the jury may detect any number of
3 See also State v. Wade, 2008-Ohio-4574, ¶ 38 (8th Dist.) (“‘A conviction is not
against the manifest weight of the evidence solely because the [factfinder] heard
inconsistent testimony.’”), quoting State v. Asberry, 2005-Ohio-4547, ¶ 11 (10th Dist.);
State v. Mann, 2011-Ohio-5286, ¶ 37 (10th Dist.) (“‘While [a factfinder] may take note of
the inconsistencies and resolve or discount them accordingly, . . . such inconsistencies do
not render defendant’s conviction against the manifest weight or sufficiency of the
evidence.’”), quoting State v. Nivens, 1996 Ohio App. LEXIS 2245 (May 28, 1996, 10th
Dist.).
inconsistencies and resolve them accordingly, “‘believ[ing] all, part, or none of a
witness’s testimony.’” State v. Brown, 2019-Ohio-313, ¶ 21 (8th Dist.), quoting State
v. Raver, 2003-Ohio-958, ¶ 21 (10th Dist.), citing State v. Antill, 176 Ohio St. 61, 67
(1964).
Here, although K.B. and N.B.’s testimony and statements regarding
who told who about the sexual abuse were inconsistent, both K.B. and N.B.’s
testimony and statements describing the sexual conduct perpetrated on K.B. and
N.B. by Bright were consistent. Both girls testified that Bright forced K.B. to “suck
his peanuts” and touched both of their “bottoms.” Further, a sperm fraction with
Bright’s DNA was found on the toothbrush that K.B. testified she used to get the
“icky stuff” out of her mouth, as well as on K.B.’s pajama shirt, which corroborated
their testimony.
Therefore, we find that after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential
elements of the crimes charged. Furthermore, after reviewing the entire record,
weighing all the evidence, and considering the credibility of witnesses, we cannot
say that the jury clearly lost its way; thus, Bright’s convictions are not against the
sufficiency of the evidence or the manifest weight of the evidence.
Accordingly, Bright’s fifth and sixth assignments of error are
overruled.
G. Reagan Tokes and Life Sentence
Under Bright’s seventh assignment of error, he argues, and the State
concedes, that the sentencing entry is incorrect because it states, “[t]he sentence
imposed upon the defendant is an indefinite sentence under SB 201 — The Reagan
Tokes Law, under SB 201 the aggregate minimum term imposed by the court is life
25 years before eligibility for parole, if granted parole the maximum term is 37.5
years, under Reagan Tokes.” (Journal Entry, May 11, 2023). Both parties agree that
the Reagan Tokes Act does not apply to sentences that carry a life-tail. In addition,
both parties agree that the court properly stated Bright’s sentence on the record at
the sentencing hearing.
“‘The function of a nunc pro tunc entry is not to change, modify, or
correct erroneous judgments, but merely to have the record speak the truth.’” State
v. Kimmie, 2013-Ohio-2906, ¶ 20 (8th Dist.), quoting Ruby v. Wolf, 39 Ohio App.
144, 147, (8th Dist. 1931). A nunc pro tunc entry is properly used to reflect “‘what
the court actually decided.’” State v. Dejesus, 2023-Ohio-2485, ¶ 34 (8th Dist.),
quoting State ex rel. Cruzado v. Zaleski, 2006-Ohio-5795, ¶ 19.
The record reveals that at the sentencing hearing the court properly
sentenced Bright to 25 years to life under R.C. 2971.03(B)(1)(b) because he was
convicted of rape of a child under ten years of age in violation of
R.C. 2907.02(A)(1)(b); however, the sentencing entry is incorrect. Therefore, the
case is remanded to the trial court for a nunc pro tunc correction of the sentencing
entry.
Accordingly, Bright’s seventh assignment of error is sustained.
III. Conclusion
We conclude that Bright’s defense counsel was not deficient, and that
the trial court did not commit plain error. Further, his convictions were not against
the sufficiency or manifest weight of the evidence. Therefore, Bright’s convictions
are affirmed. However, we remand the matter to the trial court to correct its
sentencing entry.
Accordingly, the judgment is affirmed and remanded to the trial court
solely for the purpose to issue a nunc pro tunc correction of the sentencing entry
deleting the Reagan Tokes language. The entry should read 25 years to life.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MARY J. BOYLE, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
EILEEN T. GALLAGHER, J., CONCUR