State v. C.D.S.

[Cite as State v. C.D.S., 2021-Ohio-4492.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 20AP-355

v. : (C.P.C. No. 18CR-1256)

[C.D.S.], : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 21, 2021

On brief: [G. Gary Tyack], Prosecuting Attorney, and

Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.

On brief: Carpenter, Lipps & Leland, LLP, Kort Gatterdam,

and Eric P. Henry, for appellant. Argued: Kort Gatterdam.

APPEAL from the Franklin County Court of Common Pleas

MENTEL, J.

{¶ 1} Defendant-appellant, C.D.S., appeals a judgment of the Franklin County

Court of Common Pleas convicting him, pursuant to a jury verdict, of one count of

kidnapping and five counts of rape. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On March 15, 2018, a Franklin County Grand Jury indicted appellant of one

count of kidnapping in violation of R.C. 2905.01 (Count 1), a felony of the first degree; and

five counts of rape in violation of R.C. 2907.02, felonies of the first degree (Counts 2

through 6). All of the offenses alleged in the indictment involve sexual abuse allegations

related to a minor child, L.A., between March 29, 2016 through March 28, 2017. Appellant

entered a not guilty plea on March 28, 2018.

{¶ 3} The case proceeded to a jury trial on February 24, 2020. At the onset of the

proceedings, the trial court addressed the outstanding plea offer by the state and ensured

No. 20AP-355 2

appellant intended to proceed with trial. The trial court entertained a statement by

appellant regarding his trial counsel and investigator. According to appellant, trial counsel

failed to meet with him as often as he would like and stated, "I'm willing to do my case pro

se or try to get pro bono to get my case heard the correct way to where everybody's informed,

such as myself and my family, and not left in the dark about things until a couple hours

before a court date." (Feb. 24-25, 2020 Tr. Vol. I at 9.) The trial court advised appellant

not to proceed pro se as these were serious offenses. The trial court explained its

expectations as to any litigant, whether an attorney or an individual representing himself

pro se, to comport with rules of evidence and criminal procedure. The trial court stated

that appellant has had multiple court dates and multiple continuances noting that prior to

another trial date appellant terminated his previous attorney and retained the present

counsel. (Tr. Vol. I at 10.) Given the age and seriousness of the case, the trial court was not

inclined to continue the matter as it was time to proceed since the delay was becoming a

disservice to the victim in the case. Appellant made no express request to represent himself,

and the parties proceeded with voir dire. The following evidence was adduced at trial.

{¶ 4} The state first called G.B. to testify. G.B. is the mother of the three minor

children involved in this case, S.A., T.RN., and L.A. G.B. testified that the girls have been

in foster care on multiple occasions because of her drug and criminal history. G.B. stated

that the fathers of the girls are not involved in their lives. The first time the children were

in foster care was with M.W. In 2013, the children were placed with appellant and T.RL.,

neighbors that lived across the street from G.B. G.B. was allowed visitation during this

time. G.B. stated that she is now employed, and the children are living with her at home.

G.B. learned of L.A.'s allegations against appellant while housed in Franklin County

Community Based Correctional Facility ("CBCF") in 2017. G.B. stated that she was not the

legal custodian of the children at the time.

{¶ 5} Under cross-examination, G.B. acknowledged that she had made a claim that

"[T.RN.] told me that [appellant] hit her in the nose and his son told me that [appellant] hit

her in the nose, I called them." (Feb. 25-26, 2020 Tr. Vol. II at 278.) The incident was

investigated, and the children were ultimately returned to T.RL. and appellant. G.B. stated

that there was no prior indication from L.A. or the other girls of inappropriate behavior by

appellant and T.RL. The children came home to live with G.B. in February 2018.

No. 20AP-355 3

{¶ 6} E.P. testified she has been a foster parent for four years. E.P. testified

generally about the responsibility of a foster parent and how the girls came to be in her care.

On March 22, 2017, the children were placed with E.P., but they continued to visit with

T.RL. and appellant. (Tr. Vol. II at 350.) According to E.P., the girls were "very nervous"

before the first visit. (Tr. Vol. II at 295.) E.P. stated that on or about August 16, 2017, L.A.

disclosed to her the sexual abuse by appellant. (Tr. Vol. II at 296.) E.P. stated that she

reported the allegation. On September 12, 2017, E.P. took L.A. to Nationwide Children's

Hospital.1 The girls stayed with E.P. for nearly one year before returning to live with their

mother. According to E.P., the girls wanted her to adopt them, and they did not trust their

mother. (Tr. Vol. II at 365-69.)

{¶ 7} Dr. Megan Letson testified that she is a pediatrician at Nationwide Children's

Hospital at the Center for Family Safety and Healing. Dr. Letson is board certified through

the American Board of Pediatrics in both general pediatrics and child abuse pediatrics.

Dr. Letson testified generally as to her evaluation of suspected child maltreatment and

abuse. Dr. Letson explained the medical forensic interview process and how it is utilized in

medical diagnosis and treatment. Dr. Letson testified that she performed an examination

of L.A on September 12, 2017. The process took approximately two hours, and L.A. tested

negative for all sexually transmitted diseases and no injuries were noted in the examination.

No DNA samples were taken as the last contact occurred months prior to the examination.

L.A. indicated a past history of suicidal ideation and a history of cutting her body.

Dr. Letson indicated that her finding of a normal genital examination was still consistent

with an allegation of sexual abuse as 90 to 96 percent of examinations of sexual abuse have

normal findings. (Tr. Vol. II at 330.) On cross-examination, Dr. Letson acknowledged that

she could not confirm that L.A. was sexually assaulted based on the physical exam alone.

(Tr. Vol. II at 339-40.)

{¶ 8} L.A. testified that she previously lived with her mother before moving to

foster care when she was four years old. (Tr. Vol. II at 378.) The last time L.A. was removed

from her mother's home, L.A. went to live with T.RL. and appellant. L.A. lived with

appellant for approximately three years before being removed in 2017. According to L.A.,

1 Due to a scheduling conflict, E.P. was recalled for cross-examination after the testimony of Dr. Megan Letson.

No. 20AP-355 4

the house included two bedrooms, a bathroom, a basement, a living room, and dining room.

Initially, the girls all lived in the same bedroom. After approximately six months, L.A. made

a room in the basement and the other two girls stayed upstairs. (Tr. Vol. II at 384.) The

sisters were initially allowed to go to L.A.'s room in the basement before appellant forbid

them from going down there. (Tr. Vol. II at 385.) L.A. stated that they were initially happy

to live with appellant and T.RL., but the dynamic changed.

{¶ 9} L.A. testified that appellant began to sexually abuse her when she was 13

years old. (Tr. Vol. II at 387.) According to L.A., the first time was during movie night when

appellant began to touch her body. Appellant's actions eventually progressed to oral sex

then vaginal penetration with his penis. (Tr. Vol. II at 388.) L.A. stated that this would

mostly occur in the basement. L.A. testified that the first instance of rape occurred when

she was cleaning her room in the basement, and "he climbed on top of me and he held my

head into a pillow. That's when he started." (Tr. Vol. II at 389.) L.A. testified that appellant

proceeded to put his penis into her vagina. L.A. described other times appellant would

perform oral sex by "put[ting] his mouth to [her] vagina or like if [her] mouth is on his * * *

penis." (Tr. Vol. II at 392.) L.A. stated that appellant would force off her pants and

underwear. (Tr. Vol. II at 455.) Appellant would hold her down by her arms onto the bed

and hold her head on the pillow. (Tr. Vol. II at 394-95.) L.A. also testified that appellant

on multiple occasions would use his hands to touch and penetrate her vagina with his

fingers. (Tr. Vol. II at 417-18.) According to L.A., this would occur in the basement when

everyone was asleep, at school, or when T.RL. was at the doctor. L.A. stated that appellant

used a condom at first but stopped and made her get on birth control. (Tr. Vol. II at 397-

98.) L.A. testified that the sexual abuse would cause her pain and vaginal bleeding. (Tr.

Vol. II at 400.) L.A. testified that this continued on multiple occasions up until she was

removed from the home to live with E.P.

{¶ 10} L.A. stated that the sexual abuse primarily occurred downstairs and upstairs

only "[m]aybe like twice." (Tr. Vol. II at 393.) On one of those occasions, L.A. had a doctor's

appointment and stayed home from school. According to L.A., appellant raped her

vaginally with his penis while in the living room on the couch. (Tr. Vol. II at 393.) L.A.

testified that she could not tell her sisters and dealt with the pain through self-harm by

cutting. (Tr. Vol. II at 396.) L.A. stated that she did not want this incident to happen and

No. 20AP-355 5

did not know when it would occur. L.A. testified that she was not permitted to stay upstairs

with her sisters and that she was scared of appellant. (Tr. Vol. II at 401, 418.)

{¶ 11} When L.A. lived with E.P., there was a day she was having a difficult time

after school, and E.P. calmed her down while they talked in the bathroom. L.A. testified

that she then disclosed to E.P. the sexual abuse by appellant. After speaking with E.P., L.A.

stated that she felt relieved to have told someone that she trusted. (Tr. Vol. II at 408.) After

L.A. disclosed the sexual abuse, the visits with T.RL. and appellant stopped. (Tr. Vol. II at

406.) L.A. described the interview at Nationwide Children's Hospital and identified

appellant in the courtroom. (Tr. Vol. II at 416.) L.A. denied any desire at that time to live

with G.B. (Tr. Vol. II at 413-16.)

{¶ 12} Under cross-examination, L.A. stated she lived with T.RL. and appellant

before being placed with M.W. in Reynoldsburg. L.A. was removed from the home while

her sisters stayed. (Tr. Vol. II at 433.) L.A. was placed in another foster home before going

back to appellant and T.RL. (Tr. Vol. II at 433.) L.A. conceded that it was her desire at that

time to return to appellant's and T.RL.'s home where she stayed for approximately three

years. (Tr. Vol. II at 433-34.) L.A. acknowledged that she did not speak to T.RL., her sisters,

counselors, or anyone at school about the rapes until after speaking with E.P. L.A. noted

that appellant has a scar on his stomach that runs horizontally below his navel. (Tr. Vol. II

at 434.)

{¶ 13} During re-direct examination, L.A. clarified the timeline of events stating that

she was initially placed with appellant and T.RL. in 2013 when she was 11 years old. (Tr.

Vol. II at 449.) L.A. lived with M.W. toward the beginning of placement and then with

appellant and T.RL. after the completion of the case plan. (Tr. Vol. II at 450-51.) The

allegations against appellant took place in 2016 when she was 14 years old. (Tr. Vol. II at

451.) L.A. was placed with E.P. in 2017 when she was 15 years old. L.A. stated her desire to

live with appellant and T.RL. was before returning to the home and does not want to stay

with them ever again.

{¶ 14} T.RN. testified that she lived with her sisters at T.RL. and appellant's home

for approximately three years. T.RN. stated there were a lot of arguments and not much

freedom. (Tr. Vol. II at 464.) T.RN. stated all the girls lived in a single room before

"[Appellant] moved [L.A.] downstairs." (Tr. Vol. II at 465.) T.RN. stated that she was not

No. 20AP-355 6

permitted to go into the basement. T.RN. would only go to the basement to visit L.A. when

appellant was gone. (Tr. Vol. II at 466.) According to T.RN., L.A. never disclosed to her

what happened during that time. When the girls lived with E.P., they would still visit

appellant and T.RL. T.RN. stated that appellant withheld the girls' clothes and would only

give them a few items each visit. (Tr. Vol. II at 470.) During cross-examination, T.RN.

testified that T.RL. and appellant would argue and get into physical confrontations. (Tr.

Vol. II at 473.) T.RN. noted that L.A. also wanted her own room at the time. (Tr. Vol. II at

474.)

{¶ 15} S.A. testified that initially living with appellant and T.RL. was good but went

downhill. (Feb. 27 to Mar. 2, 2020 Tr. Vol. III at 499.) After a while, appellant became

aggressive toward T.RN. and her. (Tr. Vol. III at 500.) S.A. stated that she was not allowed

to go to the basement to visit L.A. and would go down there only after appellant left the

house. (Tr. Vol. III at 508.) S.A. stated that appellant would comment about her body

stating, "[her] boobs and like they were small. He would make comments about [L.A.]'s

body figure were bigger than ours and better looking than ours." (Tr. Vol. III at 508.)

According to S.A., L.A. was depressed living with appellant and T.RL. and excited about

leaving their house. (Tr. Vol. III at 510.)

{¶ 16} On cross-examination, S.A. acknowledged that T.RL. and appellant would

take them to family events and out for activities. S.A. stated that T.RL. would not go to the

basement, and L.A. and appellant would do the laundry. (Tr. Vol. III at 520.) S.A. stated

that when she got into some trouble at school, T.RL. and appellant would yell at her. In

response to a question of whether she spoke with anyone at school about issues at home,

S.A. testified appellant hit her before going to school, and she had bled through her pants,

which elicited questions from the counselor. (Tr. Vol. III at 522.)

{¶ 17} Prior to the testimony of Kerri Wilkinson, a forensic interviewer and licensed

social worker, the state informed the court that it intended to play the video interview

between L.A. and Wilkinson, and it included potentially prejudicial statements toward

appellant. To remedy this issue, the state provided a redacted version of the interview

without the identified portions. There was no objection to the state's use of the video at that

time.

No. 20AP-355 7

{¶ 18} Wilkinson testified that she is a forensic interviewer and licensed social

worker at Nationwide Children's Hospital. Wilkinson interviews children when there are

allegations of abuse. Wilkinson testified that when a patient comes to the center, the child

will go through registration, their medical information is taken, an interview, and then a

medical exam is done by a physician or nurse practitioner. (Tr. Vol. III at 543-44.)

Wilkinson testified as to conducting an interview with L.A. on September 12, 2017. (Tr. Vol.

III at 552-53.) Wilkinson stated the forensic interview was recorded and identified the

video as an exhibit in the courtroom. The video was played for the jury. Wilkinson resumed

her testimony and noted that it is common for children to disclose information over time.

"So disclosure is a process. So it's certainly not uncommon for a child to come in during the

interview and give us information about what has happened to his or her body and then

when that child starts counseling -- as an example, when they start to develop [a]

relationship with someone over, you know, over time there is certainly a chance that that

child or that patient may give more information about things that have happened to their

body." (Tr. Vol. III at 562.)

{¶ 19} The state rested its case and moved to admit its exhibits. Appellant's counsel

objected to the admission of the evidence arguing that he was not allowed an opportunity

to question L.A. about the video. The trial court admitted the exhibits over appellant's

objection. The trial court noted that the video was provided in discovery and appellant

could have questioned L.A. about the video at that time. Appellant moved for a judgment

of acquittal pursuant to Crim.R. 29 arguing that the state had failed to meet its burden of

proof. Appellant argued there was no physical evidence and contended that the case was

based on hearsay statements. The trial court overruled the motion finding that there was

sufficient evidence in the record that the state had met its burden at that time.

{¶ 20} Paul Bailey testified that he was the principal at Westmoor Middle School

when S.A. and T.RN. were students. (Tr. Vol. III at 603.) L.A. was not enrolled at the school

during this time. Bailey stated that appellant and T.RL. attended parent-teacher

conferences, and he did not observe any signs of physical abuse or neglect in S.A. or T.RN.

at school. On cross-examination, Bailey conceded he does not have a specific recollection

of how many parent-teacher conferences appellant and T.RL. attended or recall meeting

No. 20AP-355 8

with them at any of these parent-teacher nights. Bailey also acknowledged that signs of

abuse do not always manifest in visible ways.

{¶ 21} Prior to reconvening the jury for the start of appellant's case, the state

informed the court that it had discovered appellant violated the separation order for anyone

to not speak about the specifics of the trial with potential witnesses. The state argued that

appellant had made multiple phone calls to potential witnesses since the beginning of the

trial. The state identified telephone conversations between appellant and potential

witnesses such as his mother, M.G., and T.RL. that exceeded the separation order. The

state asked that the witnesses not be able to testify, or alternatively, that the trial court

provide a jury instruction. The trial court ruled that there was a violation of the previous

order of separation of witnesses reasoning that appellant was aware of the separation order,

and appellant knew he should not speak to potential witnesses or attempt to get

information to the potential witnesses. (Tr. Vol. III at 635.) The trial court found that it

would be within his power to exclude the witnesses but instead elected to provide an

instruction to the jury. Prior to T.RL.'s testimony, the trial court provided the jury the

following instruction:

Ladies and gentlemen of the jury, prior to the beginning of this

trial, the Court placed an order called a separation of witnesses.

The order instructs the parties that any person that will testify

is to remain outside the courtroom until called to testify. The

order also instructs that witnesses are not to discuss their

testimony with anyone while this case is still pending. * * * This

order was violated. The witness about to testify was provided

information about witnesses and evidence that has already

been presented in this courtroom. You may use this

information to test the credibility or believability of this

witness' testimony.

(Tr. Vol. III at 643-44.)

{¶ 22} T.RL. testified that she has been married to appellant since 2012 at which

time she lived across the street from G.B. and the girls. T.RL. stated that she obtained

temporary custody of the children and ended up getting full custody in fall 2014. (Tr. Vol.

III at 650, 654.) The custody lasted for three and one-half years. (Tr. Vol. III at 654.) T.RL.

stated that she took the girls to see G.B. at least once a week. (Tr. Vol. III at 658.) According

to T.RL., all three girls lived in one room before L.A. requested that she move to the

No. 20AP-355 9

basement. T.RL. testified that she took the girls on activities like roller skating and watched

movies. T.RL. stated that the decision to put L.A. on birth control was a family decision.

(Tr. Vol. III at 666.) After the girls were removed from custody, T.RL. stopped visiting the

girls because they would not commit to when they were coming home, and she was never

denied visits by children services. (Tr. Vol. III at 670.) According to T.RL., she did not

know anything about the allegations against her husband until law enforcement executed

a warrant for his arrest. According to T.RL., she was always home unless she had a doctor's

appointment. T.RL. stated that the girls were first removed based on an allegation by G.B.,

then several years later, they were removed by children services, but T.RL. and appellant

were allowed visitation for several months. (Tr. Vol. III at 701.)

{¶ 23} On cross-examination, T.RL. conceded that appellant and L.A. did most of

the laundry in the house since she has a foot injury. T.RL. stated that she only did laundry

in the basement a few times because appellant complained she did not use enough bleach.

(Tr. Vol. III at 708-09.) T.RL. acknowledged that she spoke with appellant as to what

witnesses testified to in court. (Tr. Vol. III at 714.)

{¶ 24} The parties entered a stipulation regarding the testimony of Ciera Johnson.

Johnson was a case worker for the National Youth Advocacy Program and supervised the

case involving G.B. and her children in 2014. Johnson had contact with appellant and

T.RL., and the girls were happy to live with them and had no complaints at that time. (Tr.

Vol. III at 728.)2

{¶ 25} Appellant rested and moved to admit his exhibits, which were admitted

without objection from the state. Appellant at that time moved for judgment of acquittal

pursuant to Crim.R. 29, which was denied by the trial court.

{¶ 26} On March 5, 2020, the jury returned guilty verdicts on all six counts. The

trial court ordered a presentence investigation and set the case for a sentencing hearing.

On June 24, 2020, the trial court imposed a term of incarceration of 8 years on 3 of the rape

convictions to run consecutively and the remaining counts to run concurrently, for a total

term of 24 years as well as classifying appellant as a Tier III sexual offender.

{¶ 27} Appellant filed a timely appeal on July 15, 2020.

2Counsel for appellant objected to not allowing the case to be continued to allow Johnson to appear at trial,

which was overruled by the trial court.

No. 20AP-355 10

II. ASSIGNMENTS OF ERROR

{¶ 28} Appellant assigns the following as trial court error:

[1.] THE ADMISSION OF OTHER-ACTS TESTIMONY AND

EVIDENCE VIOLATED EVIDENCE RULES 403 AND 404

AND APPELLANT'S RIGHTS TO DUE PROCESS AND TO A

FAIR TRIAL AS GUARANTEED BY THE UNITED STATES

AND OHIO CONSTITUTIONS.

[2.] THE ADMISSION OF HEARSAY FROM THE ALLEGED

VICTIM, WHEN THE ALLEGED VICTIM ALSO TESTIFIED,

CONSTITUTED IMPROPER BOLSTERING, WAS

NEEDLESSLY CUMULATIVE, AND VIOLATED

APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR

TRIAL AS GUARANTEED BY THE UNITED STATES AND

OHIO CONSTITUTIONS.

[3.] THE TRIAL COURT ERRED BY REFUSING TO ALLOW

THE IMPEACHMENT OF THE ALLEGED VICTIM

REGARDING PRIOR FALSE ACCUSATIONS OF SEXUAL

MISCONDUCT CONTRARY TO APPELLANT'S STATE AND

FEDERAL CONSTIUTIONAL RIGHTS TO PRESENT A

DEFENSE, TO CROSS EXAMINATION, AND TO DUE

PROCESS.

[4.] APPELLANT WAS DEPRIVED OF HIS RIGHTS TO A

FAIR TRIAL AND DUE PROCESS CONTRARY TO THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTIUTION AND ARTICLE I, SECTION

16 OF THE OHIO CONSITUTION BECAUSE A DOCTOR

PRESENTED OPINION TESTIMONY INDICATING THE

ALLEGED VICTIM WAS NOT LYING ABOUT THE

INCIDENT.

[5.] THE ADMISSION OF EVIDENCE AND INSTRUCTION

TO THE JURY REGARDING APPELLANT AND A DEFENSE

WITNESS VIOLATING THE TRIAL COURT'S ORDER FOR

THE SEPARATION OF WITNESSES VIOLATED

APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR

TRIAL AS GUARANTEED BY THE UNITED STATES AND

OHIO CONSTITUTIONS.

[6.] THE TRIAL COURT ERRED BY FAILING TO PROVIDE

MATERIAL INFORMATION TO DEFENSE COUNSEL FROM

CONFIDENTIAL RECORDS THEREBY DEPRIVING

APPELLANT OF DUE PROCESS AND A FAIR TRIAL.

No. 20AP-355 11

[7.] THE TRIAL COURT ERRED BY NOT CONDUCTING A

SUFFICIENT INQUIRY INTO APPELLANT'S SELF-

REPRESENTATION REQUEST CONTRARY TO THE

UNITED STATES AND OHIO CONSTITUTIONS.

[8.] APPELLANT WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF

APPELLANT'S RIGHTS UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF

THE OHIO CONSTITUTION.

[9.] THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS

TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED

A JUDGMENT OF CONVICTION BASED ON INSUFFICIENT

EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS

UNDER THE UNITED STATES AND OHIO

CONSTITUTIONS.

III. LEGAL ANALYSIS

A. Appellant's First Assignment of Error

{¶ 29} In his first assignment of error, appellant argues the trial court erred in the

admission of other-acts testimony that violated Evid.R. 403 and 404.

{¶ 30} As a preliminary matter, some evidence identified in appellant's first

assignment of error was allowed over trial counsel's objection whereas other evidence was

never objected to during trial. As the standard of review changes based on whether

appellant preserved the issue at trial, we will address each piece of evidence through the

requisite standard of review.

1. Other-Acts Evidence (Objected to at Trial)

{¶ 31} Evidence of other acts of a defendant, distinct from those for which the

defendant is on trial, are generally not admissible when the intent is to show the defendant's

character, or propensity to commit crime. See State v. Armengau, 10th Dist. No. 14AP-

679, 2017-Ohio-4452, ¶ 69, citing Evid.R. 404(B); R.C. 2945.59; State v. Curry, 43 Ohio

St.2d 66 (1975); State v. DeMarco, 31 Ohio St.3d 191 (1987). Such evidence may, however,

be "admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident." Armengau at

¶ 70, citing Evid.R. 404(B). The Supreme Court of Ohio has found that Evid.R. 404(B) and

No. 20AP-355 12

R.C. 2945.59 are to be read in conjunction with each other. State v. Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695. In Williams, the Supreme Court has set forth a three-part test

for a trial court to conduct in determining the admission of other-acts evidence:

The court must consider (1) whether the other-acts evidence is

relevant under Evid.R. 401, i.e., whether it tends to make the

existence of any fact of consequence to the determination of the

action more or less probable than it would be without the

evidence, (2) whether the evidence is presented to prove a

person's character to show conduct in conformity therewith, or

whether it is presented for a legitimate other purpose, and

(3) whether the probative value of the evidence is substantially

outweighed by the danger of unfair prejudice, Evid.R. 403.

However, "the rule affords broad discretion to the trial judge

regarding the admission of other acts evidence." [Williams] at

¶ 17.

State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, ¶ 139, citing Williams at ¶ 20.

{¶ 32} Generally, the admission of other-acts evidence under Evid.R. 404(B) falls

within the broad discretion of the trial court. State v. Caldwell, 10th Dist. No. 18AP-814,

2019-Ohio-3015, ¶ 35. Abuse of discretion requires more than an error of law or judgment,

but implies that the trial court's decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). This court will not reverse an

evidentiary decision outside an abuse of discretion that resulted in material prejudice. Id.,

quoting State v. Peterson, 10th Dist. No. 12AP-646, 2013-Ohio-1807, ¶ 21. "[A]n improper

evidentiary admission under Evid.R. 404(B) may be deemed harmless error on review

when, after the tainted evidence is removed, the remaining evidence is overwhelming."

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 32; State v. Williams, 6 Ohio St.3d

281, 290 (1983), quoting Harrington v. California, 395 U.S. 250, 254 (1969).

{¶ 33} Evid.R. 403(A) states: "[a]lthough relevant, evidence 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." The trial court is granted broad discretion in

discerning the probative value of evidence against the potential danger of unfair prejudice

against a defendant under an Evid.R. 403 analysis. State v. Bethel, 110 Ohio St.3d 416,

2006-Ohio-4853, ¶ 171. A trial court's determination under Evid.R. 403 is also reviewed

No. 20AP-355 13

under an abuse of discretion analysis. Id., citing State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, ¶ 40.

{¶ 34} At trial, appellant objected to the admission of the state's exhibit 2A after the

video had been played for the jury arguing he could not cross-examine the witness with the

video. The trial court noted that appellant had the video in discovery and could have used

it to cross-examine L.A. when she testified. We find the trial court's reasoning reasonable

as there was no preclusion against appellant utilizing the exhibit during L.A.'s testimony.

To claim after the fact that such an opportunity was not available is disingenuous at best.

Moreover, the state, on its own accord, redacted portions of the video prior to its use at trial.

This was discussed with the trial court giving appellant ample opportunity to interject as to

parts of the video it perceived as prejudicial. As such, the trial court did not abuse its

admission on that basis.

{¶ 35} Next, appellant argues the trial court erred in allowing other-acts evidence

during S.A.'s testimony. S.A. testified to the environment in the home and stated that

appellant hit her and her sister, T.RN. The record indicates that trial court sustained the

objection and instructed the jury to disregard S.A.'s testimony that she was choked. After

careful review of the record, we find that the trial court did not abuse its discretion. S.A.'s

initial testimony that there were disputes in the home provided a permissible purpose for

showing the environment at the home and whether the children wanted to be in the home,

which was at issue during the trial. As to the objected testimony, the trial court instructed

the jury to disregard these statements. The jury presumed to follow the court's instruction

to disregard evidence. State v. Walburg, 10th Dist. No. 10AP-1087, 2011-Ohio-4762, ¶ 53,

citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 39. While the initial objected

to testimony was not struck from the record, the statement was brief and would constitute

harmless error on review as, after the tainted evidence is removed, the remaining evidence

of guilt is overwhelming. Accordingly, the trial court did not abuse its discretion as to its

ruling on the objected to other-acts testimony.

2. Other-Acts Testimony (Not Objected to at Trial)

{¶ 36} Appellant argues that the trial court erred in allowing testimony that

constituted other-acts evidence throughout the trial. In the instances we will examine,

counsel for appellant failed to object to the testimony at issue. Consequently, the objection

No. 20AP-355 14

was not preserved on appeal absent a finding of plain error. Crim.R. 52(B) states: "[p]lain

errors or defects affecting substantial rights may be noticed although they were not brought

to the attention of the court." Plain error does not occur unless, "but for the error, the

outcome of the trial clearly would have been otherwise." State v. Long, 53 Ohio St.2d 91,

97 (1978). This court will only recognize plain error under exceptional circumstances, with

the utmost caution, and only to prevent a miscarriage of justice. State v. Collins, 10th Dist.

No. 20AP-119, 2021-Ohio-1663, ¶ 11. " 'For an error to be a "plain error" under Crim.R.

52(B), it must satisfy three prongs: (1) there must be an error, meaning a deviation from a

legal rule, (2) the error must be "plain," meaning an "obvious" defect in the trial

proceedings, and (3) the error must have affected "substantial rights," meaning the error

must have affected the outcome of the trial.' " Id., quoting State v. J.L.H., 10th Dist. No.

19AP-369, 2019-Ohio-4999, ¶ 11, citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). In

order to constitute plain error, "the error must be obvious on the record, palpable, and

fundamental such that it should have been apparent to the trial court without objection."

State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v. Tichon, 102

Ohio App.3d 758, 767 (9th Dist.1995).

{¶ 37} The Supreme Court in assessing the "substantial rights" prong has found that

a defendant asserting plain error must show a "reasonable probability" that an identified

obvious error resulted in prejudice, i.e., that " 'the probability of a different result is

"sufficient to undermine confidence in the outcome" of the proceeding.' " (Internal citation

omitted.) State v. Williams, 10th Dist. No. 19AP-824, 2021-Ohio-3006, ¶ 53, quoting State

v. Battle, 10th Dist. No. 18AP-728, 2019-Ohio-2931, ¶ 22-23, quoting Tench at ¶ 218; see

also State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 105, citing State v.

Waddell, 75 Ohio St.3d 163, 166 (1996).

{¶ 38} First, appellant alleges that the statement that appellant would argue and

cheat on his wife in exhibit 2A was improper other acts testimony. In addition to the

potential need to know about appellant's promiscuity for medical diagnosis and treatment,

infra at ¶ 54-56, the statement is intertwined with the charged conduct at issue. Other-acts

testimony is often intertwined with charged conduct and is needed often to provide a

"complete picture of what occurred." State v. Wilkinson, 64 Ohio St.2d 308 (1980). The

Supreme Court stated background evidence was admissible if the "other acts" were

No. 20AP-355 15

"inextricably related" to the crime charged and if the "challenged evidence plays an integral

part in explaining the sequence of events and is necessary to give a complete picture of the

alleged crime." State v. Thompson, 66 Ohio St.2d 496, 498 (1981), citing Wilkinson. Here,

the allegation of appellant having affairs, or the arguments between appellant and T.RL.,

provide immediate background of the alleged act that provides background for the charged

offenses. State v. Grimm, 12th Dist. No. CA2018-10-071, 2019-Ohio-2961 (finding

statements by defendant that he wanted to fight other people and fled the scene provided

the immediate background of the alleged act). L.A. alleged that appellant would get into

fights with T.RL. then leave the home. When appellant came home he would sneak into the

basement to initiate the sexual abuse of L.A. This describes appellant's scheme, plan,

motive, and opportunity for the abuse. Regardless, even if the other-acts evidence

presented at trial was erroneous, appellant cannot overcome plain error as the verdict in

this case would not have changed by the exclusion of the allegations of arguments in the

home. State v. Lyons, 9th Dist. No. 03CA0023-M, 2003-Ohio-5783, ¶ 29 (finding

admission of evidence of previous fights was erroneous but harmless pursuant to Crim.R.

52 based on the weight of the evidence against defendant).

{¶ 39} Next, appellant contends the trial court erred in allowing L.A. to testify that

appellant showed her pornography and that appellant asked her to obtain nude pictures of

her friends. We disagree that this constitutes plain error. Testimony as to appellant

showing L.A. nude photographs indicates a continuing course of sexual activity with L.A.

that was relevant to and used for the purpose of demonstrating appellant's opportunity,

plan, and his "grooming" of L.A. for later sexual activity. " 'Grooming refers to deliberate

actions taken by a defendant to expose a child to sexual material; the ultimate goal of

grooming is the formation of an emotional connection with the child and a reduction of the

child's inhibitions in order to prepare the child for sexual activity.' " Williams at ¶ 20,

quoting United States v. Chambers, 642 F.3d 588, 593 (7th Cir.2011). These statements

are relevant as they show how appellant normalized sexual behavior. It is well-established

law in Ohio that testimony as to appellant's grooming of the victim is relevant information

for a non-propensity purpose. See Armengau at ¶ 72; State v. Thomas, 2d Dist. No. 27362,

No. 20AP-355 16

2018-Ohio-4345, ¶ 32.3 Therefore, we find no error as to L.A.'s testimony regarding

pornography and nude photographs.

{¶ 40} Appellant next argues that there were occasions of sexual abuse recounted by

L.A. that were not charged in the indictment. Ohio appellate courts have found that a trial

court did not error in permitting a child victim to testify as to unindicted sexual abuse

because the testimony was minimal, vague, and did not prejudice the appellant. State v.

Hernandez, 8th Dist. No. 104976, 2018-Ohio-738, ¶ 50; Thomas at ¶ 58 (finding the trial

court did not err in allowing testimony from the victim as to the unindicted acts at issue

were not extensively discussed, minimal, and vague). Here, L.A. stated that she could not

be sure how many times appellant raped her while she lived at his home. The statements

were often vague and minimal to the charged offenses. These allegations were also

inextricably linked to the charged offenses as they were part of the same scheme or plan of

abuse. Given the references to uncharged offenses were vague and minimal we cannot say

allowing this testimony constitutes plain error.

{¶ 41} Appellant argues that the testimony of his past sexual activity violates R.C.

2907.02(D), commonly referred to as "Ohio's rape shield law," which controls the

introduction of evidence related to sexual history of either the victim or defendant in a sex

offense case. The statute states as to evidence of a defendant's past sexual activity reads:

Evidence of specific instances of the defendant's sexual activity,

opinion evidence of the defendant's sexual activity, and

reputation evidence of the defendant's sexual activity shall not

be admitted under this section unless it involves evidence of the

origin of semen, pregnancy, or disease, the defendant's past

sexual activity with the victim, or is admissible against the

defendant under section 2945.59 of the Revised Code, and only

to the extent that the court finds that the evidence is material

to a fact at issue in the case and that its inflammatory or

prejudicial nature does not outweigh its probative value.

R.C. 2907.02(D).

3We note that the use of pornography was also potentially permissible for medical treatment and diagnosis.

State v. Watts, 10th Dist. No. 15AP-951, 2016-Ohio-5386, ¶ 23 (finding that to the extent that statements

related to a child's exposure to pornography can be considered a form of sexual abuse, the statements are

relevant to the child's treatment and diagnosis).

No. 20AP-355 17

{¶ 42} R.C. 2945.59 provides that:

In any criminal case in which the defendant's motive or intent,

the absence of mistake or accident on his part, or the

defendant's scheme, plan, or system in doing an act is material,

any acts of the defendant which tend to show his motive or

intent, the absence of mistake or accident on his part, or the

defendant's scheme, plan, or system in doing the act in

question may be proved, whether they are contemporaneous

with or prior or subsequent thereto, notwithstanding that such

proof may show or tend to show the commission of another

crime by the defendant.

{¶ 43} It is well-settled law that R.C. 2945.59 must be read in harmony with Evid.R.

404(B). Williams, 2012-Ohio-5695, at ¶ 16. While there is a statutory presumption that

past sexual conduct by a defendant may not be admitted, the statute is subject to the same

exceptions as other evidence under Evid.R. 404(B) and R.C. 2945.59. Armengau at ¶ 78-

79. For the reasons given as to the use of such evidence under Evid.R. 404(B) and R.C.

2945.59, the testimony of appellant's prior sexual conduct did not violate the rape shield

statute or constitute plain error.

{¶ 44} Appellant relies on State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440.

A brief review is instructive. In Hartman, the defendant was charged with raping an adult

female acquaintance. The prosecutor introduced evidence that the defendant sexually

abused his stepdaughter when she was a child. The Supreme Court affirmed the court of

appeals reversal that other-acts evidence should not have been admitted at trial.

{¶ 45} The present case is distinguishable from Hartman as the other acts described

at trial occurred with L.A. or based on her knowledge from living with appellant. The acts

introduced in Hartman were wholly unrelated and several years apart.

{¶ 46} We do note that trial counsel for appellant not only did not object to

purported other-acts evidence but, in fact, used it as part of its strategy in the case.

Appellant's trial counsel asked S.A. if she spoke to anyone at school about issues in the

home, and she stated she spoke to her counselor "after the last time [appellant] hit [her]"

when she "was bleeding so bad, [she] bled through [her] pants and [the counselor]

question[ed] it." (Tr. Vol. III at 522.) Also on cross-examination, T.RL. was asked about

arguments and fighting between appellant and T.RL. (Tr. Vol. II at 473.) While T.RL.

conceded that she may have hit the girls one or two times for discipline she contended that

No. 20AP-355 18

she provided the girls a safe and loving home. (Mar. 3-5, 2020 Tr. Vol. IV at 712.) By

eliciting the other-acts testimony from the girls, trial counsel appears to have tried to

discredit their testimony, and by implication L.A.'s allegations of abuse. Appellant's

counsel also appeared to use other-acts testimony to argue that T.RL. and appellant

provided a loving home and that the abuse allegations were based on the girl's efforts to

reconcile with the mother. G.B. stated that she made a claim of abuse, but it was later

disproven. (Tr. at Vol. II 277-78.) Appellant's counsel later called the principal as to

allegations of abuse by appellant. Bailey stated that appellant and T.RL. attended parent-

teacher conferences, and he did not observe any signs of physical abuse or neglect in S.A.

or T.RN. at school. It is also reasonable that appellant's counsel, given the nature of the

allegations, did not want to highlight the testimony by objecting to these allegations given

his later use of the testimony. Hartman at ¶ 67 ("Depending on the nature of the other-

acts evidence and the context in which it is used, defense counsel may as a matter of strategy

wish to avoid highlighting the evidence for the jury.").

{¶ 47} The most problematic aspects of the identified testimony are the specific

instances of physical violence by appellant against the girls. While not overly relevant to

the allegations at issue, they likely fall under impermissible other-acts testimony. However,

we cannot find that these statements constituted plain error as the error was not necessarily

obvious given the need to establish the environment of the abuse. The girls testified that

the appellant was more aggressive towards S.A. and T.RN. than L.A. indicating that the

sexual abuse was a sort of reward and prevented L.A. from that type of physical violence.

Also, as set forth in the preceding paragraph, opposing counsel used many of these specific

acts as part of his strategy to discredit various witnesses' testimony making it less obvious

in the record whether the error was apparent to the trial court without objection. Moreover,

appellant's substantial rights were not affected as we are not convinced that the outcome of

the trial was affected as there remains ample evidence of appellant's guilt based on the

testimony of L.A.

{¶ 48} Appellant's first assignment of error is overruled.

B. Appellant's Second Assignment of Error

{¶ 49} In appellant's second assignment of error, he argues that the trial court erred

in admitting the state's exhibit 2A, a video recording of L.A.'s interview with Wilkinson.

No. 20AP-355 19

Specifically, appellant argues that the statements in the video constitute impermissible

hearsay evidence and do not qualify under medical diagnosis or treatment hearsay

exceptions. Appellant also argues that even if parts of the video did qualify under the

medical diagnosis exception, the remaining aspects the video were needlessly cumulative

and prejudicial under Evid.R. 403.

{¶ 50} Generally, this court will affirm the trial court's admission or exclusion of

evidence absent a finding of an abuse of discretion and that the defendant was materially

prejudiced. State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 41, quoting State

v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 16. An error in the admission of

evidence is grounds for reversal only in cases where the appellant's substantial rights were

affected, or substantial justice appears to not have been done. Jarvis v. Hasan, 10th Dist.

No. 14AP-578, 2015-Ohio-1779, ¶ 70, citing Faieta v. World Harvest Church, 10th Dist. No.

08AP-527, 2008-Ohio-6959, ¶ 73. "To show an evidentiary ruling has affected a substantial

right, the party must demonstrate that the alleged error impacted the final determination

of the case." Jarvis at ¶ 70, citing Lips v. Univ. of Cincinnati College of Medicine, 10th Dist.

No. 12AP-374, 2013-Ohio-1205, ¶ 49, citing Campbell v. Johnson, 87 Ohio App.3d 543, 551

(2d Dist.1993).

{¶ 51} As an initial matter, trial counsel for appellant failed to object to the playing

of the video. Once the video was played for the jury, counsel objected, arguing that he was

not able to cross-examine the victim on her statements in the video. Accordingly, we will

review the admission of the video based on appellant's ability to cross-examine L.A. under

an abuse of discretion and all remaining arguments will be reviewed under a plain error

analysis. State v. McKinney, 10th Dist. No. 13AP-211, 2013-Ohio-5394, ¶ 20, citing Crim.R.

52(B) (finding appellant did not object at the trial level on particular grounds presented on

appeal forfeiting all but plain-error review).

{¶ 52} Regarding appellant's argument that he was not able to cross-examine the

witness, as also set forth in our analysis of appellant's first assignment of error, we agree

with the trial court that the video was available to appellant prior to trial, and it could have

been used in cross-examination. We also note that L.A. testified at trial and was subject to

cross-examination, and as such, the Confrontation Clause does not preclude use of her

earlier statements. State v. Land, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 113, quoting

No. 20AP-355 20

Crawford v. Washington, 541 U.S. 36 (2004), fn. 9 ("[W]hen the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the use

of his prior testimonial statements. * * * The Clause does not bar admission of a statement

so long as the declarant is present at trial to defend or explain it."). Because appellant was

present and available at trial to explain her statements in the video, the Confrontation

Clause is not implicated.4 As such, the trial court did not abuse its discretion in admitting

the video on that basis.

{¶ 53} Evid.R. 801(C) defines "hearsay" 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. 803 provides certain exceptions to the hearsay rule,

regardless of whether the declarant is available as a witness. Evid.R. 803(4) states that an

out-of-court statement is not excluded hearsay testimony if it is "made for the purposes of

medical diagnosis or treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis or treatment." It is well-

established law that statements made by a child to identify an individual for sexual abuse

is relevant to diagnosis and treatment of a child. State v. Dever, 64 Ohio St.3d 401, 413

(1992). These statements provide a treating physician information as to any potential

injuries the child may have, preventing future abuse, and identify any potential emotional

abuse of the child. Id. at 413.

{¶ 54} This court considered a similar issue in C.C.B. finding the trial court did not

err in allowing the video recording of the Nationwide Children's Hospital forensic interview

into evidence. We wrote:

[T]he Supreme Court has "classified information regarding the

identity of the perpetrator, the type of abuse alleged, the

identification of the areas where the child had been touched

and the body parts of the perpetrator that had touched her, as

well as the time frame of the abuse, as statements for diagnosis

and treatment because that information allowed the doctor or

nurse to determine whether to test the child for sexually

4We also note that, for the reasons set forth in our analysis of appellant's second assignment of error infra, the

statements made by L.A. do not offend the Confrontation Clause as the interview was used for medical

diagnosis and treatment. "Statements made to interviewers at child-advocacy centers that are made for

medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation

Clause." State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, paragraph two of the syllabus.

No. 20AP-355 21

transmitted diseases, and to identify any trauma or injury

sustained during the alleged abuse."

State v. C.C.B., 10th Dist. No. 18AP-782, 2019-Ohio-3631, ¶ 36, quoting In re C.S., 10th

Dist. No. 11AP-667, 2012-Ohio-2988, ¶ 14, citing State v. Arnold, 126 Ohio St.3d 290, 2010-

Ohio-2742, ¶ 32.

{¶ 55} In the present case, Wilkinson, a forensic interviewer and licensed social

worker at Nationwide Children's Hospital, interviewed L.A. as to allegations of sexual

abuse. L.A. described the nature of the abuse by appellant, identified the areas where she

was touched and penetrated as well as areas of appellant's body that touched her. L.A.

discussed the timeline for the abuse as well as the circumstances that would lead to

appellant coming down to the basement to initiate the abuse. These statements help to

direct the medical examination and treatment of L.A. going forward. As such, the video of

the forensic interview falls squarely under the medical diagnosis and treatment exception

under Evid.R. 803(4). Even if small portions of the video do not fall under medical

diagnosis and treatment exception, the error is harmless as L.A. was available and testified

at trial as to the sexual abuse allegations. " '[T]he admission of hearsay is harmless error

where the declarant was also a witness and examined regarding matters identical to those

contained in the hearsay statements.' " State v. F.R., 10th Dist. No. 14AP-440, 2015-Ohio-

1914, ¶ 37, quoting State v. Smith, 2d Dist. No. 20828, 2006-Ohio-45, ¶ 16, citing State v.

Allen, 2d Dist. No. 1390 (May 24, 1996); State v. Loch, 10th Dist. No. 02AP-1065, 2003-

Ohio-4701, ¶ 16, citing State v. Tomlinson, 33 Ohio App.3d 278, 281 (12th Dist.1986)

(finding the admission of hearsay was harmless when the declarant is cross-examined on

the same subject matters and the erroneous evidence is cumulative in nature).

{¶ 56} Appellant next contends that, because the examination identified no physical

injuries, the video does not implicate the medical diagnosis exception. This argument is

unpersuasive as Wilkinson had no previous knowledge as to what, if any, injuries L.A.

sustained prior to the interview. Appellant also argues that L.A.'s statements do not meet

the medical exception because Wilkinson is not a physician. This argument is also without

merit as the exception is extended to social workers as long as the purpose of the statement

is part of the initiation of medical diagnosis or treatment. C.C.B. at ¶ 35, citing State v.

Jordan, 10th Dist. No. 06AP-96, 2006-Ohio-6224, ¶ 20.

No. 20AP-355 22

{¶ 57} Appellant argues that even if parts of the interview fall under Evid.R. 803(4),

the video was needlessly cumulative and prejudicial. After careful review of the video, we

find that the trial court did not commit plain error in admission of the video on these

grounds. The trial court has broad discretion in allowing evidence and addressing any

redundancy in the context of a minor testifying of sexual abuse. C.C.B. at ¶ 27, citing State

v. Issa, 93 Ohio St.3d 49, 64 (2001) ("trial court has broad discretion in the admission of

evidence, and unless it has clearly abused its discretion and the defendant has been

materially prejudiced thereby, an appellate court should not disturb the decision of the trial

court")(Citation omitted.); Jordan at ¶ 9 (finding no abuse of discretion in admitting

testimony over hearsay objection as social worker's "description of [child victim's]

comments during the interview paralleled [the victim's] subsequent testimony at trial");

State v. Sheldon, 12th Dist. No. CA2013-12-018, 2014-Ohio-5488, ¶ 35 (concluding that in

the child sex abuse context "cumulative evidence is not necessarily inadmissible").

(Citations omitted.)

{¶ 58} In the case sub judice, the vast majority of the video falls under the medical

diagnosis or treatment hearsay exception. Other aspects of the video, as discussed more

extensively in the first assignment of error, constitute permissible testimony as to

background, motive, and grooming of the victim. Error in the admission of testimony could

be considered harmless where the testimony is cumulative of other admitted testimony.

Arnold at ¶ 8, citing State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 59

(concluding that any error in admitting statements were harmless as the testimony was

cumulative of other properly admitted testimony); State v. Holloman, 10th Dist. No. 06AP-

01, 2007-Ohio-840, ¶ 3. "An error in the admission of evidence is harmless beyond a

reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming

proof of defendant's guilt." State v. Simpson, 10th Dist. No. 01AP-757, 2002-Ohio-3717,

¶ 38, citing Williams, 6 Ohio St.3d at 290. Again, we note that the state took efforts to

remove potentially prejudicial aspects of the video by redacting portions of the interview.

Accordingly, even if parts the video were duplicative, the evidence was properly admitted

and any minor statements that do not fall under the exception cannot overcome plain error

analysis as there is overwhelming evidence to support the guilty verdict.

{¶ 59} Appellant's second assignment of error is overruled.

No. 20AP-355 23

C. Appellant's Third Assignment of Error

{¶ 60} In appellant's third assignment of error, he argues that the trial court erred

in failing to allow impeachment evidence of the victim as to alleged prior false accusations

of sexual misconduct.

{¶ 61} The Supreme Court has found that Ohio's rape shield statute, R.C.

2907.02(D), does not apply when a prior allegation can be proven by the defense to be

totally false or unfounded and the evidence may be admitted under Evid.R. 608(B). State

v. Boggs, 63 Ohio St.3d 418 (1992) ("R.C. 2907.02 prohibits only evidence of 'sexual

activity' of the victim. Because prior false accusations of rape do not constitute 'sexual

activity' of the victim, the rape shield law does not exclude such evidence."). The Boggs

court stated that the trial court has the discretion in allowing cross-examination if it is

"clearly probative of truthfulness or untruthfulness." Id. at 421. If the individual answers

in the affirmative and an in-camera hearing is conducted, the trial court still has discretion

to determine if the defense counsel may proceed. "Under no circumstances would the

defense be permitted to introduce extrinsic evidence." Id. at 422, citing Evid.R. 608(B).

This court reviews a trial court's ruling on the admissibility of evidence for an abuse of

discretion. State v. Myers, 10th Dist. No. 02AP-1187, 2003-Ohio-4135, ¶ 64.

{¶ 62} Appellant argues that "by implication" L.A.'s prior visits to the Child

Advocacy Center ("CAC") were for suspected maltreatment. (Appellant's Brief at 26.)

Counsel for appellant, however, did not proffer testimony that the prior allegations of

sexual abuse were totally unfounded. The burden is on the defense to demonstrate that the

prior alleged accusations were "totally false and unfounded." Boggs at 423. Appellant

asked L.A. whether she had been abused in the past. Before L.A. could answer, the state

objected to the question, which was sustained by the trial court. (Tr. Vol. II at 422.)

Accordingly, there is insufficient evidence for the argument that L.A. made false allegations

of sexual abuse in the record.

{¶ 63} Evid.R. 608(B) states:

Specific instances of the conduct of a witness, for the purpose

of attacking or supporting the witness's character for

truthfulness, other than conviction of crime as provided in

Evid. R. 609 may not be proved by extrinsic evidence. They

may, however, in the discretion of the court, if clearly probative

No. 20AP-355 24

of truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning the witness's

character for truthfulness or untruthfulness * * *.

{¶ 64} Appellant essentially argues on appeal that the trial court erred in precluding

him from searching for evidence of false accusations of rape through in-camera questioning

of L.A. R.C. 2907.02 does not require a court to compel such an inquiry. "[U]nder Evid.R.

608(B), a party generally cannot prove by extrinsic evidence specific instances of the

conduct of a witness for the purpose of attacking the witness's character for truthfulness.

Although Evid.R. 608(B) did not impede the court's ability to hear extrinsic evidence at an

in-camera hearing, it also did not compel the court to make the victim and parents testify

during such a hearing." McKinney at ¶ 20. While appellant contends it could have

impeached L.A. with evidence related to purported false allegations, that argument is far

from certain.

{¶ 65} As to Boggs, the Supreme Court addressed the issue as to "whether the rape

shield provisions of R.C. 2907.02(D) prohibit a defendant from cross-examining an alleged

rape victim about prior false rape accusations she is alleged to have made." Id. at 420. The

Boggs court held, Evid.R. 608(B) allows, in the trial court's discretion, cross-examination

on specific instances of conduct "if clearly probative of truthfulness or untruthfulness." Id.

at paragraph one of the syllabus. Only in cases "where an alleged rape victim admits on

cross-examination that she has made a prior false rape accusation, the trial judge shall

conduct an in-camera hearing to ascertain whether sexual activity was involved and, as a

result, cross-examination on the accusation would be prohibited by R.C. 2907.02(D), or

whether the accusation was totally unfounded and therefore could be inquired into

pursuant to Evid.R. 608(B)." (Emphasis added.) Id. at paragraph two of the syllabus.

{¶ 66} Here, L.A. did not answer the question as to whether she had made similar

accusations in the past, and trial counsel did not provide an adequate evidentiary basis

during its discussion with the trial court to support his claim. This court does not find

Boggs to require trial courts to permit in-camera questioning of the victim as to alleged

false accusations of sexual activity without evidence the victim even made such an

accusation. See McKinney at ¶ 37 ("The purpose of a Boggs hearing is for the trial court to

determine the extent of cross-examination, not for a defendant to gather impeachment

No. 20AP-355 25

evidence in the first instance."); State v. Delozier, 10th Dist. No. 94APA02-250 (Nov. 17,

1994) (concluding the trial court did not err under Boggs in prohibiting testimony about

victim's alleged false allegation of sexual abuse where defendant's trial counsel did not

present evidence to indicate it had anything to substantiate the existence of the allegation

other than hearsay evidence). As such, the trial court did not abuse its discretion in

precluding appellant from asking L.A. as to purported claims of prior false allegations as

appellant failed to demonstrate an adequate basis for the argument.

{¶ 67} Appellant's third assignment of error is overruled.

D. Appellant's Fourth Assignment of Error

{¶ 68} In appellant's fourth assignment of error, he argues that the trial court erred

in allowing Dr. Letson to present opinion testimony that showed the victim was telling the

truth about the sexual abuse. Specifically, appellant argues Dr. Letson's testimony

constituted improper vouching for L.A.'s claims of sexual abuse by appellant. As counsel

for appellant failed to object to the testimony, we review this assignment of error under a

plain error analysis. Long at 97; Crim.R. 52(B).

{¶ 69} After careful review of the testimony at issue, we are not persuaded that Dr.

Letson provided a personal opinion as to the truthfulness of L.A.'s accusations. Dr. Letson

testified as to the forensic interview procedure and to L.A.'s examination. Dr. Letson

concluded that there were no physical findings from the examination. Dr. Letson explained

that this was normal as 90 to 96 percent of cases involving sexual abuse have no physical

findings. Dr. Letson acknowledged that she could not confirm the sexual abuse based on

the physical examination alone. Dr. Letson is qualified to testify as to the physical

examination and her statement that the examination was consistent with L.A.'s testimony

does not indicate a finding of credibility but that the testimony is not, in and of itself,

inconsistent. Appellant seems to acknowledge as much later in his brief writing, "Dr.

Letson examined L.A. and could not substantiate or confirm any of L.A.'s allegations."

(Appellant's Brief at 58.)

{¶ 70} Appellant relies on State v. Boston, 46 Ohio St.3d 108 (1989), to support his

argument. A brief review of the case is instructive. In Boston, the defendant was alleged to

have molested his 2-year-old daughter. The victim in the case, although deemed able to tell

the truth and communicate, refused to testify. The child's physician testified at trial that

No. 20AP-355 26

the child had not fantasized her abuse in effect stating that the victim's statements were

truthful. Id. at 128. The Supreme Court found that the trial court committed reversible

error in allowing the expert's testimony as to the veracity of the child's statements.

{¶ 71} We find Boston is distinct from the instant case. First, unlike in Boston, L.A.

testified at trial. "Boston does not apply when the child victim actually testifies and is

subjected to cross-examination." (Internal quotations omitted.) State v. Roush, 10th Dist.

No. 12AP-201, 2013-Ohio-3162, ¶ 61, quoting State v. Benjamin, 8th Dist. No. 87364,

2006-Ohio-5330, ¶ 19, quoting State v. Curren, 5th Dist. No. 04 CA 8, 2005-Ohio-4315,

¶ 26. When a minor victim testifies at trial, the jury may make their own determination of

credibility of the victim compared to the minor in Boston where there was no independent

reliability to save the testimony from the expert witness that improperly vouched for the

child. Id. at ¶ 16. As such, even if we were to find that Dr. Letson's testimony amounted to

improper bolstering, any error in admitting expert testimony regarding the veracity of

L.A.'s testimony is harmless as the jury could perceive L.A. and decide for themselves the

credibility of her testimony. Hughes at ¶ 49. Given trial counsel failed to object at trial, we

cannot find plain error in this instance.

{¶ 72} Appellant's fourth assignment of error is overruled.

E. Appellant's Fifth Assignment of Error

{¶ 73} In appellant's fifth assignment of error, he alleges that the trial court abused

its discretion instructing the jury that T.RL. "was provided information about witnesses and

evidence that has already been presented in this courtroom" and the jury "may use this

information to test the credibility or believability of this witness' testimony." (Tr. Vol. III

at 634-37; 643-44.)

{¶ 74} The trial court has broad discretion to separate witnesses under Evid.R. 615.

As set forth in Evid.R. 615(A), "at the request of a party the court shall order witnesses

excluded so that they cannot hear the testimony of other witnesses, and it may make the

order of its own motion." The purpose of the Evid.R. 615 order is to ensure a witness'

testimony is based on his/her personal knowledge instead of what he or she may hear from

another witness. State v. Waddy, 10th Dist. 87AP-1159 (Nov. 2, 1989). "The spirit of the

separation order is violated if counsel or a spectator briefs a witness upon other witnesses'

testimony." Id., citing State v. Snowden, 7 Ohio App.3d 358 (10th Dist.1982). The trial

No. 20AP-355 27

court's ruling concerning the separation of witnesses and sanctions for failure to comply

with a separation order are reviewed under an abuse of discretion analysis. State v.

Williams, 10th Dist. No. 16AP-350, 2018-Ohio-974, ¶ 29, quoting State v. Smith, 49 Ohio

St.3d 137, 142 (1990).

{¶ 75} In the present case, the trial court ordered the separation of witnesses as

follows:

If there's anyone that's going to testify in this matter they are to

remain outside until such time as they are to testify. They are

not to discuss their testimony with anyone until this case is

over.

I'm going to ask counsel to notify all your witnesses that there

is a separation order in place; that they are to remain outside;

and that they are not to discuss their testimony with anyone.

(Tr. Vol. I at 221.)

{¶ 76} During the trial, the state argued that appellant violated this order by

speaking to several individuals, including T.RL., disclosing the testimony of witnesses from

the trial. The state played portions of calls between appellant and the witnesses to support

its position that the order had been violated. The state requested that the witnesses be

excluded from testifying or, alternatively, the jury be instructed that appellant violated the

court's order to not discuss testimony with anyone until the case is over. Appellant posited

that the calls were attempts to arrange witnesses to come to testify at trial and objected to

the exclusion of any witnesses as it would prejudice appellant's ability to present its case.

The trial court concluded that appellant violated the separation order but allowed T.RL. to

testify with an instruction that she "was provided information about witnesses and evidence

that has already been presented in this courtroom" and that the jury "may use this

information to test the credibility or believability of this witness' testimony." (Tr. Vol. III at

634-37, 643-44.)

{¶ 77} After careful review of the record, we find the trial court's use of the

instruction was not an abuse of discretion. At the start of trial, the court imposed a

separation order that all potential witnesses are not to discuss their testimony with anyone.

While a defendant is permitted to speak to witnesses generally and assist with

arrangements for them to appear at trial, the trial court concluded that appellant's

No. 20AP-355 28

statements to T.RL., and other potential witnesses, exceeded that limitation. The trial court

stated "clearly [appellant] thought that getting a timeline to [T.RL.] was something that

would be significant and so making efforts, based upon the recordings to do that, get that

information to her. So the Court * * * does find a clear violation of its previous order of

separation of witnesses in this matter." (Tr. Vol. III at 635.) T.RL. later acknowledged as

much, stating that she discussed with appellant the prior testimony of witnesses from the

trial. (Tr. Vol. III at 714.) As noted by the trial court, once it finds a violation of the order

of separation, it may exclude the witness from testifying. Instead, the trial court elected to

provide an instruction prior to T.RL.'s testimony. The instruction was a straightforward

assessment of the facts and was a reasonable remedy given the nature of the telephone calls.

The trial court, despite appellant's efforts to relay information to T.RL. during the telephone

calls, was cognizant of the potential prejudice to appellant of excluding witnesses altogether

and even elected to not indicate in the instruction whether it was appellant or the state that

committed the Evid.R. 615 violation. The instruction merely stated that a violation

occurred.

{¶ 78} Appellant's reliance on State v. Murphy, 7th Dist. No. 19 MA 0018, 2019-

Ohio-5462, is misplaced. In Murphy, the prosecutor communicated with a witness during

a lunch break between her cross and redirect examination. The trial court declared a

mistrial but denied the defendant's motion to dismiss. The Seventh District Court of

Appeals affirmed the trial court's denial of the motion to dismiss on double jeopardy

grounds and concluded that there was no prosecutorial misconduct intentionally calculated

to cause a mistrial. The trial court found that the record indicated the prosecutor's conduct

was not nefarious or intended, which defense counsel agreed. Murphy at ¶ 21. In addition

to the obvious distinctions between the role of a prosecutor and the appellant in the case,

Murphy is distinct as the discussion was during a break not prior to the start of her

testimony. The trial court in Murphy had also not expressly forbid communication

between anyone during the break in the victim's testimony or restrict the prosecutor's

access to the victim prior to redirect examination. Murphy at ¶ 20. Here, the trial court

concluded that appellant was aware of the separation order, and appellant knew he was

precluded from discussing trial testimony with potential witnesses in the case. Given the

factual distinctions between the cases, we find Murphy inapplicable.

No. 20AP-355 29

{¶ 79} Even if there was an error in providing the instruction there was no prejudice

as T.RL.'s testimony was largely contextual and did not refute L.A.'s allegations of sexual

abuse. T.RL. testified that she rarely entered the basement, confirmed appellant's scar on

his naval, and that L.A. never previously informed her of any of the allegations against

appellant. While the trial court referenced the jail calls at sentencing, our review of the

record indicates that this statement was in reference to appellant's actions that led to the

Evid.R. 615 violation instead of what appellant alleges as a factor the jury considered in

reaching its verdict. The trial court appeared to indicate the jail calls demonstrate appellant

was trying to manipulate witnesses to help his defense, not a consideration by the jury in

reaching the verdict. As the jury never heard the jail calls there is no way for them to have

considered them in their deliberations.

{¶ 80} Accordingly, we overrule appellant's fifth assignment of error.

F. Appellant's Sixth Assignment of Error

{¶ 81} In appellant's sixth assignment of error, he contends that the trial court erred

in excluding subpoenaed case records regarding G.B. and her children from Franklin

County Children Services and the National Youth Advocate Program.

{¶ 82} Pursuant to R.C. 5153.17, children services agency records are confidential.

However, these records may be available in discovery if the trial court, after an in-camera

inspection, determines: the records are relevant and necessary to the case, whether there

is good cause shown by the moving party, and whether the admission outweighs

confidentiality concerns identified in R.C. 5153.17 and 2151.421(H)(1). Child Care Provider

Certification Dept. v. Harris, 8th Dist. No. 82966, 2003-Ohio-6500, ¶ 11, citing Johnson

v. Johnson, 134 Ohio App.3d 579, 585 (3d Dist.1999).

{¶ 83} The trial court's ruling on a pretrial motion to quash a subpoena is generally

reviewed under an abuse of discretion. Ohio Elections Comm. v. Ohio Chamber of

Commerce, 158 Ohio App.3d 557, 2004-Ohio-5253, ¶ 18 (10th Dist.), citing Petro v. N.

Coast Villas Ltd., 136 Ohio App.3d 93, 96 (9th Dist.2000). Here, the trial court conducted

an in-camera inspection and determined that none of the information could be used at trial.

The trial court addressed the issue before trial, stating:

I indicated to NYAP [National Youth Advocate Program] and I

indicated to the attorney representing NYAP and the attorney

representing Children Services to turn the information over to

No. 20AP-355 30

me. And then what happens is that I do an inspection of the

documents and the records to find out if there's any

information in those records that are relevant to the issues in

this trial.

After reviewing a ton of documents, I indicated to the attorneys

that the information that's within the file is not any information

that could be used at trial.

Mr. Billing has asked me on a number of occasions about using

certain information which I've already indicated to him would

be inappropriate in this case.

You know, things like a child's -- what the child is going through

based upon the fact that the child is in foster care, okay, that's

irrelevant to the issues in this case. You can't say because the

child's gone through foster care that I can now testify -- or

excuse me, I can now cross-examine her on all of the treatment

that she's received, all the counseling that she's received, all the

programs that she's been engaged in, what's been going on with

her in school. No. It's my responsibility to make sure that only

relevant information is produced at trial.

(Tr. Vol. I at 13-14.)

{¶ 84} While appellant preserved the issue for appellate review, he failed to request

that the records be placed under seal. As such, we are unable to review the records on

appeal. Pursuant to App.R. 12(A)(1)(b), this court is limited to determining an appeal based

on the record as provided in App.R. 9. As stated in State v. Smith, 10th Dist. No. 16AP-772,

2017-Ohio-7740, ¶ 25, citing State v. Newman, 6th Dist. No. E-11-065, 2013-Ohio-414, ¶ 7-

8, appeal not accepted, 135 Ohio St.3d 1471, 2013-Ohio-2512:

Although it is the duty of all of the participants during trial to

ensure that a proper appellate record is being created, Crim.R.

22 and State v. Lewis, 2d Dist. No. 23850, 2011-Ohio-1411,

¶ 28, ultimately appellant bears the duty to demonstrate where

error occurs on the record. App.R. 9(B) and State v. Perry, 101

Ohio St.3d 118, 2004 Ohio 297, 802 N.E.2d 643, ¶ 6,

quoting State v. Fisher, 99 Ohio St.3d 127, 2003 Ohio 2761, 789

N.E.2d 222, ¶ 7. Without a complete record, the appellate court

must presume the regularity of the proceedings and the validity

of the judgment. State ex rel. Hoag v. Lucas Cty. Bd. of

Elections, 125 Ohio St.3d 49, 2010-Ohio-1629, 925 N.E.2d 984,

¶ 12, and State v. Prince, 71 Ohio App.3d 694, 698, 595 N.E.2d

No. 20AP-355 31

376 (4th Dist.1991), citing Knapp v. Edwards Laboratories, 61

Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

If an appealable issue arises during trial, appellant has a duty

to proffer contrary evidence in order for the appellate court to

have a record to review the issue. Evid.R. 103(A)(2) and State

v. Chapin, 67 Ohio St.2d 437, 444, 424 N.E.2d 317

(1981). Correspondingly, appellant has a duty to ensure that all

of the evidence considered by the court is entered into the

record and transmitted to the court of appeals or to take action

to correct or supplement the record pursuant to App.R. 9 if

there is an error or omission. State v. Tyler, 50 Ohio St.3d 24,

41, 553 N.E.2d 576 (1990), superseded by constitutional

amendment in part on other grounds as stated in State v.

Smith, 80 Ohio St.3d 89, 103, 1997-Ohio-355, 684 N.E.2d 668

(1997), fn. 4 and Maseck v. Lindav Properties, 1st Dist. No. C-

050528, 2006-Ohio-3721, ¶ 11. Otherwise, the appellate court

must find that appellant waived any error that might have been

reflected in the omitted record. Smith at 41. Compare In re

Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, 821 N.E.2d 568,

¶ 19-20 (appellant does not waive any error if the omission in

the record is due to the error of the court personnel and not

appellant).

{¶ 85} In the case sub judice, although the record contains some discussion as to the

substance of the subpoenaed case records regarding G.B. and her children from Franklin

County Children Services and the National Youth Advocate Program, the records were not

placed under seal and are not available in the record. Accordingly, we cannot say that

appellant has met his burden of demonstrating error on appeal as to the trial court's

decision to quash the subpoenaed records. App.R. 16(A)(1) through (7). From what we can

surmise in the record, however, based on the available information, the trial court's

determination to preclude the use of the records at trial was not an abuse of discretion. The

trial court's statement that the records of "what the child is going through based upon the

fact that the child is in foster care, okay, that's irrelevant to the issues in this case. You can't

say because the child's gone through foster care that I can now testify -- or excuse me, I can

now cross-examine her on all of the treatment that she's received, all the counseling that

she's received, all the programs that she's been engaged in, what's been going on with her

in school. No. It's my responsibility to make sure that only relevant information is produced

at trial." (Tr. Vol. I at 14.) The trial court's assessment of its role when conducting in-

No. 20AP-355 32

camera inspections of such sensitive records is accurate and, based on the limited

information available in the record, not an unreasonable basis to exclude the subpoenaed

records.

{¶ 86} Appellant's sixth assignment of error is overruled.

G. Appellant's Seventh Assignment of Error

{¶ 87} In appellant's seventh assignment of error, he argues that the trial court erred

in failing to inquire into appellant's request to represent himself at trial.

{¶ 88} The Sixth Amendment to the United States Constitution protects a criminal

defendant's right to self-representation reading: "In all criminal prosecutions, the accused

shall * * * have the Assistance of Counsel for his defence." The Ohio Constitution, Article I,

Section 10, similarly provides that "[i]n any trial, in any court, the party accused shall be

allowed to appear and defend in person and with counsel." The right to counsel " 'implicitly

embodies a "correlative right to dispense with a lawyer's help." ' " State v. Obermiller, 147

Ohio St.3d 175, 2016-Ohio-1594, ¶ 26, quoting State v. Martin, 103 Ohio St.3d 385, 2004-

Ohio-5471, ¶ 23, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942).

This right to counsel is frustrated when counsel is compelled upon a defendant that is not

willing to accept the attorney to advocate on his behalf in the proceeding.

{¶ 89} The United States Supreme Court wrote:

The Sixth Amendment does not provide merely that a defense

shall be made for the accused; it grants to the accused

personally the right to make his defense. It is the accused, not

counsel, who must be "informed of the nature and cause of the

accusation," who must be "confronted with the witnesses

against him," and who must be accorded "compulsory process

for obtaining witnesses in his favor." Although not stated in the

Amendment in so many words, the right to self-representation

-- to make one's own defense personally -- is thus necessarily

implied by the structure of the Amendment. The right to defend

is given directly to the accused; for it is he who suffers the

consequences if the defense fails.

Faretta v. California, 422 U.S. 806, 819-20 (1975).

{¶ 90} Subsequent to Faretta, the Supreme Court of Ohio found the "[t]he Sixth

Amendment, as made applicable to the state by the Fourteenth Amendment, guarantees

that a defendant in a state criminal trial has an independent constitutional right of self-

No. 20AP-355 33

representation and that he may proceed to defend himself without counsel when he

voluntarily, and knowingly and intelligently elects to do so." State v. Gibson, 45 Ohio St.2d

366 (1976), paragraph one of the syllabus, citing Faretta. When a criminal defendant

unambiguously asserts his right to self-representation it is the trial court's duty to conduct

a Faretta inquiry to determine if the defendant is knowingly and intelligently waiving his

or her right to counsel. Obermiller at ¶ 30, citing United States v. Cromer, 389 F.3d 662,

682-83 (6th Cir.2004). The Supreme Court of Ohio also concluded that a trial court's denial

of the right to self-representation, when the right is "properly invoked," constitutes

reversible error. State v. Reed, 74 Ohio St.3d 534, 535 (1996), citing McKaskle v. Wiggins,

465 U.S. 168, 177 (1984), fn. 8. See State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070,

¶ 74 (finding it was an abuse of discretion for the trial court to refuse defendant the right to

proceed pro se in a capital case if the defendant properly invokes the right to self-

representation).

{¶ 91} Whether a defendant "properly invokes" the right to self-representation is

critical to determine if the trial court committed reversible error by refusing defendant the

right to proceed pro se. A defendant must "unequivocally and explicitly invoke" his

intention to assert his right to self-representation. State v. Cassano, 96 Ohio St.3d 94,

2002-Ohio-3751, ¶ 38. This ensures that a criminal defendant does not " 'tak[e] advantage

of and manipulat[e] the mutual exclusivity of the rights to counsel and self-

representation.' " Obermiller at ¶ 29, quoting United States v. Frazier-El, 204 F.3d 553,

559 (4th Cir.2000). Accordingly, courts must " 'indulge in every reasonable presumption

against waiver' " of the right to counsel. Obermiller at ¶ 29, quoting Brewer v. Williams,

430 U.S. 387, 404 (1977). Regardless, if a criminal defendant has unequivocally and

expressly requested to proceed pro se, a defendant can later waive that request by

acquiescing to representation by counsel. Obermiller at ¶ 31, citing Cassano at ¶ 42, citing

McKaskle at 182.

{¶ 92} We note that when this case began, appellant was initially represented by a

different attorney and indicated in a letter to the trial court that he wished to retain new

counsel as it appeared that trial counsel was just trying to "plead him out." (June 20, 2018

Bond Hearing Tr. at 3.) Appellant later retained new trial counsel and the case was

continued. On October 24, 2019, appellant sent the court another letter, writing that he

No. 20AP-355 34

was concerned the investigator was not locating all his potential witnesses. Prior to trial,

appellant complained to the trial court that counsel failed to meet with him as often as he

would like and stated, "I'm willing to do my case pro se or try to get pro bono to get my case

heard the correct way to where everybody's informed, such as myself and my family, and

not left in the dark about things until a couple hours before a court date." (Tr. Vol. I at 9.)

The trial court then advised appellant not to proceed pro se as these were serious offenses

and explained its expectations as to comporting with rules of evidence and criminal

procedure. The trial court noted that appellant had also previously sought new counsel

before trial. (Tr. Vol. I at 10.) The trial court concluded that given the age and seriousness

of the case it was time to proceed to trial as it was becoming a disservice to the victim in the

case. Prior to swearing in the jury, the trial court again asked appellant and counsel, after

additional time to meet with each other, whether they intended to move forward with the

trial. Trial counsel indicated that they were ready to proceed with the case. (Tr. Vol. II at

124.)

{¶ 93} After careful review of the record, we find that appellant did not properly

invoke, or even request, to represent himself at trial. Appellant's comments before the court

amount to general complaints of his attorney but do not constitute an unequivocal and

express invocation to represent himself in the case. While appellant relies on Faretta, the

instant case is distinct as appellant did not make the requisite request to proceed pro se but

only appeared to generally critique trial counsel's purported deficiencies in his

representation. At no point was counsel forced upon appellant. Arguendo, even if

comments to the trial court constituted an unequivocal and express request to proceed pro

se, appellant waived that request by acquiescing to representation by counsel. Obermiller

at ¶ 31, citing Cassano at ¶ 42, citing McKaskle at 182.

{¶ 94} Because appellant never properly invoked his desire to proceed pro se, the

trial court did not need to engage in a Faretta inquiry to determine if the appellant

knowingly and intelligently waived his right to counsel. The trial court in this instance

addressed the identified critiques of appellant's counsel's representation allowing them to

confer as to the case and the state's outstanding plea offer before the trial commenced. As

the right to self-representation was not properly invoked, appellant was not denied the right

to self-representation.

No. 20AP-355 35

{¶ 95} Appellant's seventh assignment of error is overruled.

H. Appellant's Eighth Assignment of Error

{¶ 96} In appellant's eighth assignment of error, he alleges that trial counsel was

ineffective in violation of his rights under the Sixth and Fourteenth Amendments to the

United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.

{¶ 97} In Strickland v. Washington, 466 U.S. 668 (1984), the United States

Supreme Court established a two-part test to consider ineffective assistance of counsel. The

Supreme Court of Ohio has adopted the Strickland test to resolve whether counsel's

representation was ineffective. State v. Bradley, 42 Ohio St.3d 136, 142 (1989) (writing the

standard under the Ohio Constitution is "essentially the same as the one enunciated by the

United States Supreme Court in Strickland").

{¶ 98} First, the defendant must demonstrate that trial counsel's representation was

outside the range of professionally competent assistance and, accordingly, deficient.

Strickland at 687. In determining claims of deficient representation, "a court must indulge

a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at

689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). Second, the defendant must

demonstrate that trial counsel's deficient representation resulted in prejudice to the

defense and deprived the defendant of a fair trial. Strickland at 687. To establish prejudice,

a defendant must show "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

When the allegations of ineffective assistance are based on trial counsel's failure to file a

motion, the appellant must show that "(1) the motion was meritorious or likely to be

granted, and (2) that there was a reasonable probability that the verdict would have been

different had the motion been made." Armengau at ¶ 100, citing State v. Raver, 10th Dist.

No. 02AP-604, 2003-Ohio-958, ¶ 63, citing State v. Santana, 90 Ohio St.3d 513 (2001),

and State v. Lott, 51 Ohio St.3d 160 (1990).

{¶ 99} Appellant contends that trial counsel was deficient in the following ways: (1)

counsel failed to object to other-acts evidence; (2) failed to object to the hospital interview

No. 20AP-355 36

before it was played for the jury; (3) failed to file a pretrial motion to address L.A.'s alleged

prior false accusations; (4) expressed sympathy and failure to object to evidence of

sympathy to L.A. and her family; (5) failed to object or move to strike hearsay statements;

(6) failure to object to improper vouching of L.A.; (7) failure to object to references to the

word "victim" and erred by using the word "victim"; (8) failure to ensure that trial court

sealed the subpoenaed confidential records; and (9) cumulative error. We will address each

allegation in turn.

{¶ 100} Appellant first argues counsel was ineffective in failing to object to other-

acts evidence. As set forth in the first assignment of error, we concluded that much of the

evidence would have been permissible regardless of whether counsel had objected at trial.

Moreover, trial counsel utilized other-acts evidence as part of his trial strategy in

undermining the credibility of the sisters. However, the allowance of specific instances of

violence by appellant into the record would qualify under the first prong of Strickland as

outside the range of professionally competent assistance and, accordingly, deficient.

However, appellant cannot meet the second prong as there is not a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different. As such, appellant fails to meet the second prong of Strickland.

{¶ 101} Next, appellant argues trial counsel was ineffective for failing to object to

hearsay evidence from the hospital interview before the video was played for the jury. For

the reasons set forth in our analysis of the second assignment of error, we find this

argument also unpersuasive. Briefly, as appellant had an opportunity to cross-examine

L.A. on the video, but failed to do so, there is no Confrontation Clause issue. The video was

permissible as most of the interview fell under the medical diagnosis and treatment

exception to the hearsay rule. As other evidence in the video was admissible outside the

hearsay issue, any other potentially impermissible hearsay was harmless as appellant had

an opportunity to cross-examine L.A. regarding the video and matters identical to that

contained in the hearsay statements. F.R., at ¶ 37, quoting Smith, 2006-Ohio-45, at ¶ 16,

citing Allen. We also note that it is conceivable that the lack of objections to the video while

it was played could have been considered part of trial counsel's strategy as continually

objecting would bring additional attention to the video bolstering L.A.'s credibility.

"Tactical or strategic trial decisions, even if ultimately unsuccessful, will not substantiate a

No. 20AP-355 37

claim of ineffective assistance of counsel." State v. Ryan, 10th Dist. No. 08AP-481, 2009-

Ohio-3235, ¶ 77, citing In re M.E.V., 10th Dist. No. 08AP-1097, 2009-Ohio-2408, ¶ 34. As

such, we are not convinced that the first prong of Strickland is met. Regardless, appellant

fails to demonstrate that the second prong of Strickland is satisfied as, even excluding the

video, L.A. provided persuasive testimony that was never refuted by appellant.

Accordingly, appellant has not demonstrated that trial counsel's deficient representation

resulted in prejudice to the defense and deprived the him of a fair trial.

{¶ 102} Next, appellant argues that trial counsel was ineffective for failing to file a

pretrial motion to address L.A.'s alleged prior false accusations. There is insufficient

evidence in the record to explain the basis for the alleged prior false accusations and

appellant's counsel failed to proffer evidence that L.A. made prior false statements. "There

must be sufficient basis in the record * * * upon which the court can decide that error."

(Emphasis sic.) Hungler v. Cincinnati, 25 Ohio St.3d 338, 342 (1986). It is well-established

law that an appeals court is limited to the record of the proceedings from trial. Morgan v.

Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, ¶ 13. " 'It is impossible for a reviewing court to

determine on direct appeal whether ineffective assistance of counsel occurred where the

allegations of ineffectiveness are based upon evidence outside of the record.' " State v.

Prophet, 10th Dist. No. 14AP-875, 2015-Ohio-4997, ¶ 32, quoting State v. Farwell, 12th

Dist. No. CA2001-03-041, 2002-Ohio-1912, citing State v. Cooperrider, 4 Ohio St.3d 226,

228 (1983). Because trial counsel's claim of prior false allegations is outside the record of

proceedings before this court, it is impossible for this court to review appellant's allegations

of ineffectiveness.

{¶ 103} Appellant argues that counsel was ineffective in expressing sympathy to

L.A. and her family and failing to move to strike expressions of sympathy by the state. We

disagree. "There are countless ways to provide effective assistance in any given case. Even

the best criminal defense attorneys would not defend a particular client in the same way."

Strickland at 689. In determining ineffective assistance of counsel, a reviewing court must

make every effort to avoid distorting effects of hindsight. Strickland at 689. Given the

nature of the allegation and the age of L.A., cross-examination of a minor for sexual abuse

can often be perceived by the jury as aggressive or harsh. Here, appellant commented that

he was "glad" L.A. was able to reunite with her mother and that her life appeared to be

No. 20AP-355 38

"looking up." (Tr. Vol. II at 449; Tr. Vol. III at 529.) It is conceivable, and likely, to think a

jury would look favorably on his concern and statements of L.A. and her sisters reuniting

with G.B. At the very least, it falls in the acceptable range of trial strategy. Appellant next

contends statements made to G.B. on her sobriety were improper stating he congratulated

her "for doing well now" and "glad your children are doing well." (Tr. Vol. II at 269.) Again,

it is reasonable trial strategy to think counsel was trying to gain favor with the jury by

demonstrating a friendly demeanor especially after cross-examining G.B. on her drug

dependency issues, which led to her children being placed in foster care. As to not objecting

to the prosecutor's statements, it is conceivable to think additional objections could bring

more attention to the testimony.

{¶ 104} Appellant also argues counsel was ineffective in failing to object to E.P.'s

characterization of the sisters as "survivors." After review of the transcript, we do not find

this as deficient as the statement appears in reference to the multiple times the children

were placed in foster care and removed from their mother. The jury was aware the sisters

did not have a father in their lives and G.B. was in and out of jail. Further, objecting to

E.P.'s characterization of the girls as honest would have likely drawn more attention to the

statement than it would have deserved. The jury heard testimony that E.P. wanted to adopt

the girls and has a strong relationship with them to this day. Any claim by appellant that it

was improper bolstering of the sisters, and by extension L.A., is tenuous and certainly did

not result in a reasonable probability that it would undermine confidence in the verdict.

{¶ 105} Next, appellant argues counsel was ineffective based on failing to object to

hearsay statements in E.P.'s testimony as to the behavior of the girls and attitude toward

appellant and T.RL. E.P. testified generally as to her observations and the girls lack of

desire to visit with appellant. The statement by E.P. as to L.A. crying in the bathroom was

objected to and sustained by the trial court. Appellant also identifies statements by G.B.

conveyed to her from T.RN. However, these statements while hearsay, are far from

meaningful evidence in the case in which there are kidnapping and multiple counts of rape.

Moreover, all these individuals testified to the same evidence at trial. " '[T]he admission of

hearsay is harmless error where the declarant was also a witness and examined regarding

matters identical to those contained in the hearsay statements.' " F.R. at ¶ 37, quoting

Smith, 2006-Ohio-45, ¶ 16, citing Allen. Even considering all these statements as

No. 20AP-355 39

impermissible hearsay and deficient under the first prong of Strickland, they are fleeting

remarks in the context of a protracted jury trial. As such, we do not find that there is a

reasonable probability that this would undermine confidence in the outcome.

{¶ 106} Appellant also contends that trial counsel was ineffective for failing to

object to improper vouching. This issue is extensively discussed in appellant's fourth

assignment of error. As set forth previously, we are not persuaded that Dr. Letson provided

her personal opinion on the truthfulness of L.A.'s claims of sexual abuse. Dr. Letson

testified as to the interview procedure and to L.A.'s examination. Dr. Letson concluded that

the examination was normal and there were no physical findings from the examination.

Dr. Letson stated that this was typical as in 90 to 96 percent of sexual abuse cases there are

no physical findings. Dr. Letson noted that she could not confirm the sexual abuse based

on the physical examination alone. As such, we do not find appellant has met his burden

under Strickland.

{¶ 107} Appellant next argues that counsel was ineffective in allowing the use of the

word "victim" at trial. Specifically, appellant argues that counsel was ineffective for failing

to object to the prosecutor's use of the word "victim" in voir dire, witnesses use of the word

"victim" in reference to L.A., defense counsel's use of the word "victim" at trial, and jury

instructions referring to L.A. as a "victim."

{¶ 108} After careful review of the record, the state and witnesses did not use the

word "victim" at trial in place of L.A. or in an immediate reference to her as the victim in

the case. The prosecutor referred to his unit as "special victim's unit." (Tr. Vol. I at 24, 49,

77-78, 108-09.) Next, E.P. made a general remark that she took L.A. to her examination

stating that they went to the building at Nationwide Children's Hospital where "victims of

assault" are processed. (Tr. Vol. II at 357.) Next, the state made a reference to a "victim

advocate" present at the CAC interview. (Tr. Vol. III at 545.) Wilkinson also used the word

"victim" but in reference to the fact that victims delaying their disclosures of abuse is not

uncommon. Appellant's trial counsel made a general reference to law enforcement needing

to question a victim. (Tr. Vol. III at 569.) In closing statements, the state made a general

reference to "victims of sexual abuse" taking time to open upon and report abuse. (Tr. Vol.

III at 739.) Finally, the use of the word "victim" in the jury instruction mirrors the statutory

definitions of rape and kidnapping. Compare Tr. Vol. IV at 768 ("the defendant by force or

No. 20AP-355 40

threat restrained L.A. of her liberty for the purposes of engaging in sexual activity with the

victim against the victim's will") to R.C. 2905.01(A)(4) ("[n]o person, by force * * * shall * *

* restrain the liberty of the [victim] * * * [t]o engage in sexual activity, as defined in [R.C.

2907.01], with the victim against the victim's will"; Tr. Vol. IV at 771 ("defendant engaged

in sexual conduct with another and the defendant purposely compelled the other person to

submit by force or threat of force. The State need not prove that the victim physically

resisted") to R.C. 2907.02(C)("[n]o person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or threat of force.

* * * A victim need not prove physical resistance to the offender in prosecutions under this

section"). These references do not suggest a finding of appellant's guilt or undermine the

fairness of the trial as they are either broad references, titles as in the case of the victim

advocate, or an accurate reflection of the statutory language at issue in the case.

{¶ 109} Appellant relies on our decision in State v. Almedom, 10th Dist. No. 15AP-

852, 2016-Ohio-1553, finding repeated references to the complaining witness as a "victim"

constituted error telling the jury that the complaining witness was truthful when claiming

that the sexual abuse occurred. This court addressed a similar argument in State v. Nichols,

10th Dist. No. 19AP-113, 2020-Ohio-4362, writing: "[f]irst and foremost, in Almedom, the

offending references to the witnesses as 'victims' were made by the trial judge, not the

prosecutor. While a trial judge must remain detached and neutral in any matter before the

court, the prosecutor is not constrained by any such obligation of neutrality." Id. at ¶ 39,

citing State v. Harper, 10th Dist. No. 01AP-201 (Dec. 31, 2001). It is also conceivable that

defense counsel did not want to bring further attention to the issue as part of the trial

strategy by insinuating appellant did not trust the jury's ability to identify the word "victim"

as a reference to a complaining witness.

{¶ 110} Furthermore, even if appellant had objected to the statements in closing

arguments there would be no error. A prosecutor during closing argument may comment

on " 'what the evidence has shown and what reasonable inferences may be drawn

therefrom.' " Lott at 165, quoting State v. Stephens, 24 Ohio St.2d 76, 82 (1970).

Identifying L.A. or making a general reference to victims of abuse opening up over time in

closing argument would constitute commentary on the evidence shown at trial and,

therefore, would not be improper. Regardless, as both parties used the term it is hard to

No. 20AP-355 41

identify what, if any, prejudice appellant suffered as a result. Moreover, while appellant

also identifies some instances where his trial counsel used the word "victim" in voir dire

and in his opening statement, appellant fails to demonstrate that this amounts to prejudice

sufficient to satisfy the second prong of Strickland, namely that there is a reasonable

probability that objection could have resulted in a different outcome of the trial.

{¶ 111} Appellant next argues counsel was ineffective for failing to ensure the trial

court sealed confidential records. As set forth previously, " '[i]f an appealable issue arises

during trial, appellant has a duty to proffer contrary evidence in order for the appellate

court to have a record to review the issue. Correspondingly, appellant has a duty to ensure

that all of the evidence considered by the court is entered into the record and transmitted

to the court of appeals or to take action to correct or supplement the record pursuant to

App.R. 9 if there is an error or omission.' " (Internal citations omitted.) Smith, 2017-Ohio-

7740, at ¶ 25, quoting Newman, 2013-Ohio-414, at ¶ 7-8. Again, because the contents of

the record are outside the record of proceedings before this court, it is impossible for this

court to review appellant's allegations of ineffectiveness.

{¶ 112} Finally, appellant argues counsel was ineffective based on the cumulative

error during the trial. "Under the doctrine of accumulated error, a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial

even though each of the instances of trial-court error does not individually constitute cause

for reversal." (Citation omitted.) State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶

230, overruled in part on other grounds, State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-

634, ¶ 35. Errors that are harmless individually, when considered together, may violate a

defendant's right to a fair trial. State v. Norman, 10th Dist. No. 12AP-505, 2013-Ohio-

1908, ¶ 61. However, " 'errors cannot become prejudicial by sheer weight of numbers.' "

State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 211, quoting State v. Hill, 75 Ohio

St.3d 195, 212 (1996). There is no doubt that appellant did not receive a perfect trial. The

volume of alleged error in appellant's brief, however, is more of a statement of counsel's

thoroughness than a reflection of prejudice to appellant. While we agree that appellant

identifies several aspects of trial counsel's overall performance that could be considered

deficient under the first prong of Strickland, we are nonetheless unable to find that

appellant has demonstrated that, but for counsel's performance on these issues, the

No. 20AP-355 42

outcome of the trial would have been different. Despite trial counsel's failure to object at

various points in the trial, we do not find appellant can overcome the fact that L.A. testified

clearly as to the nature of the sexual abuse, and her testimony was consistent with all the

other evidence in the case. In light of L.A.'s testimony, we conclude appellant is unable to

demonstrate the requisite prejudice under the second prong of Strickland. Therefore, trial

counsel's actions as well as trial court error, cumulatively or in isolation, did not deprive

appellant of his right to a fair trial.

{¶ 113} We overrule appellant's eighth assignment of error.

I. Appellant's Ninth Assignment of Error

{¶ 114} In appellant's ninth assignment of error, he argues that there was

insufficient evidence presented at trial and that the verdict was against the manifest weight

of the evidence.

{¶ 115} The legal standard of sufficiency of the evidence "tests whether the evidence

introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.

08AP-1093, 2010-Ohio-1881, ¶ 36, citing Thompkins at 386. Whether the evidence

presented at trial is legally sufficient to support the verdict is a question of law, not fact.

State v. Fabal, 10th Dist. No. 20AP-86, 2021-Ohio-1793, ¶ 20, quoting State v. Kurtz, 10th

Dist. No. 17AP-382, 2018-Ohio-3942, ¶ 15, citing Thompkins at 386. When resolving

whether the evidence is legally sufficient, " '[t]he relevant inquiry is 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. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307

(1979). In a sufficiency of the evidence analysis, "appellate courts do not assess whether

the prosecution's evidence is to be believed but whether, if believed, the evidence supports

the conviction." Kurtz at ¶ 16, citing Yarbrough at ¶ 79-80.

{¶ 116} Conversely, while sufficiency of the evidence tests the adequacy of whether

the evidence presented is legally sufficient to support the verdict as a matter of law, the

standard of manifest weight of the evidence considers the evidence's effect of inducing

belief. Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25,

citing Thompkins at 386. Even if there is sufficient evidence to support a verdict, a

No. 20AP-355 43

reviewing court may still conclude that a judgment is against the manifest weight of the

evidence. State v. McCombs, 10th Dist. No. 15AP-245, 2015-Ohio-3848, ¶ 3, citing

Thompkins at 387.

{¶ 117} An appellate court reviewing a manifest weight challenge "may not merely

substitute its view for that of the trier of fact, but must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses, and determine

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. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing

Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). An

appellate court should reserve reversal of a conviction as being against the manifest weight

of the evidence for the most "exceptional case in which the evidence weighs heavily against

the conviction." (Internal quotations omitted.) State v. Cervantes, 10th Dist. 18AP-505,

2019-Ohio-1373, ¶ 27.

{¶ 118} When considering a manifest weight of the evidence argument, the

reviewing court may consider the credibility of the witnesses. State v. Cattledge, 10th Dist.

No. 10AP-105, 2010-Ohio-4953, ¶ 6. However, this court is guided by the presumption

that, " '[the jury] is best able to view the witnesses and observe their demeanor, gestures

and voice inflections, and use these observations in weighing the credibility of the proffered

testimony.' " Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

Disagreement over the credibility of a witness is not a sufficient reason to reverse a

judgment on manifest weight grounds. State v. G.G., 10th Dist. No. 12AP-188, 2012-Ohio-

5902, ¶ 7. Therefore, we give the jury's determination of witness credibility great deference.

State v. Redman, 10th Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings,

10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55; State v. Covington, 10th Dist. No. 02AP-

245, 2002-Ohio-7037, ¶ 28.

{¶ 119} In the present case, the jury found appellant guilty of five counts of rape in

violation of R.C. 2907.02 and one count of kidnapping in violation of R.C. 2905.01. As set

forth in R.C. 2907.02,"[n]o person shall engage in sexual conduct with another when the

offender purposely compels the other person to submit by force or threat of force. * * *

Whoever violates this section is guilty of rape, a felony of the first degree." R.C.

No. 20AP-355 44

2907.02(A)(2) and (B). Pursuant to R.C. 2907.01(A), "[s]exual conduct" is defined in

relevant part as "vaginal intercourse between a male and female; * * * fellatio, and

cunnilingus between persons regardless of sex; and, without privilege to do so, the

insertion, however slight, of any part of the body or any instrument, apparatus, or other

object into the vaginal or anal opening of another. Penetration, however slight, is sufficient

to complete vaginal or anal intercourse." R.C. 2907.01(C) defines " '[s]exual activity' means

sexual conduct or sexual contact, or both." Kidnapping is proscribed by R.C. 2905.01, which

states in relevant part, "[n]o person, by force, threat * * * shall * * * restrain the liberty of

the other person* * * [t]o engage in sexual activity, as defined in [R.C. 2907.01], with the

victim against the victim's will." R.C. 2905.01(A)(4).

{¶ 120} In the present case, L.A. testified to living with T.RL. and appellant for

approximately three years before being removed in 2017. L.A. described the house included

two bedrooms, a bathroom, a basement, a living room, and dining room. Initially, the girls

all lived in the same bedroom. After about six months, L.A. was moved to the basement,

and her sisters were not permitted to visit. L.A stated the abuse started when she was 13

years old. According to L.A., the first time was during movie night when appellant began

to touch her body. L.A. stated that appellant's actions progressed from oral sex to vaginal

penetration with his penis. L.A. testified that the first time occurred when she was cleaning

her room in the basement. "[H]e climbed on top of me and he held my head into a pillow.

That's when he started." (Tr. Vol. II at 389.) L.A. testified that this would occur in the

basement when everyone was asleep, at school, or when T.RL. was at the doctor. Appellant

initially used a condom but stopped after he made L.A. get on birth control. According to

L.A., appellant would force off her pants and underwear and hold her down by her arms

onto the bed holding her head on the pillow. L.A. testified that the sexual abuse would

cause her pain and vaginal bleeding.

{¶ 121} L.A. described other times appellant would perform oral sex on her stating,

"he [would] put[] his mouth to [her] vagina or like my mouth is on his * * * penis." (Tr. Vol.

II at 392.) L.A. stated that the abuse primarily occurred downstairs and upstairs "maybe

like twice." (Tr. Vol. II at 393.) On one of these occasions, L.A. stated appellant raped her

vaginally with his penis while in the living room on the couch. L.A. also testified that

appellant on multiple occasions would use his hands to touch and penetrate her vagina.

No. 20AP-355 45

L.A. noted that appellant has a scar on his stomach that runs horizontally below his navel.

L.A. testified that this abuse continued until she was removed from the home to live with

E.P.

{¶ 122} L.A.'s testimony is consistent with other witnesses at trial. T.RL. testified

that she would seldomly go into the basement because of a foot injury. Both T.RN. and S.A.

confirmed that they were not permitted to enter the basement and had to sneak down there

to see their sister when appellant was not home. The testimony of a sole witness, if believed

by the trier of fact, is sufficient to support a conviction. State v. Strong, 10th Dist. No.

09AP-874, 2011-Ohio-1024, ¶ 42, citing State v. Dunn, 5th Dist. No. 2008-CA-00137,

2009-Ohio-1688, ¶ 133. When considering the sufficiency of the evidence, "[t]he court

essentially assumes the state's witnesses testified truthfully and determines whether that

testimony satisfies each element of the crime." State v. Davis, 10th Dist. No. 18AP-921,

2019-Ohio-4692, ¶ 38, citing State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754,

¶ 4. Here, L.A. testified appellant by force, or threat of force, restrained her for the purpose

of engaging in sexual activity against her will. L.A. also stated that appellant compelled her

to submit by force, or threat of force, to sexual conduct with her, through vaginal and digital

penetration, cunnilingus, and fellatio. It was the province of the jury to assess the

credibility of L.A. and to resolve which aspects of her testimony it found credible. After

careful review of the record, considering the evidence in favor of the state, as required for a

sufficiency of the evidence analysis, we conclude that the state presented enough evidence

to support conviction for rape and kidnapping.

{¶ 123} As to the manifest weight of the evidence argument, appellant argues that

other-acts evidence and improper bolster contributed to the conviction. As set forth in the

first two assignments of error as well as the eighth assignment of error, much of these

statements provide some permissible purpose and, even outside those statements, there is

clear evidence of guilt against appellant in this case.

{¶ 124} Appellant argues that the case comes down to L.A.'s credibility as she did

not discuss any of the allegations prior to her disclosure to E.P., with her sisters, school

officials, T.RL., or G.B. Appellant argues that L.A.'s credibility is questionable given the

testimony from her and her sisters compared to T.RL. as to their home life, care of the girls,

and the decision to get birth control. Appellant also notes that there was no physical

No. 20AP-355 46

evidence in the case and Dr. Letson could not substantiate or confirm any of L.A.'s

allegations based on her physical examination alone.

{¶ 125} A lack of physical evidence, alone, does not sustain a conviction against a

manifest weight challenge. State v. Flores-Santiago, 8th Dist. No. 108458, 2020-Ohio-

1274, ¶ 37, citing State v. Rusnak, 7th Dist. No. 15 JE 0002, 2016-Ohio-7820, ¶ 30; Thomas

at ¶ 25. Furthermore, the jury was presented with testimony by T.RL. as to L.A.'s

motivations and desire to move back with her and appellant after the girls were initially

removed from the home. The jury heard from the other sisters as to their lack of knowledge

of the sexual abuse until L.A.'s disclosure to E.P. It is within the trier of fact to determine

the credibility of L.A. and the other witnesses. In a manifest weight review, an appellate

court must "bear in mind the trier of fact's superior, first-hand perspective in judging the

demeanor and credibility of witnesses." State v. Mickens, 10th Dist. No. 08AP-626, 2009-

Ohio-1973, ¶ 30. We find that the jury is in the best position to determine the credibility of

L.A. by considering her manner and demeanor, as well as any inconsistences in her

testimony. Accordingly, we cannot conclude this case presents a scenario where the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed, and a new trial ordered.

{¶ 126} For the foregoing reasons, we conclude that appellant's convictions of rape

and kidnapping were based on sufficient evidence and not against the manifest weight of

the evidence.

{¶ 127} Accordingly, we overrule appellant's ninth assignment of error.

IV. CONCLUSION

{¶ 128} Having overruled appellant's nine assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN and SADLER, JJ., concur.

_____________