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Date: 10-11-2019
Case Style:
STATE OF OHIO vs. APRIL SCHROEDER
Case Number: 18CA1077
Judge: Jason T. Smith
Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
Plaintiff's Attorney: David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant Adams County Prosecutor
Defendant's Attorney:
Description:
Call 888-354-4529 if you need a Criminal Defense Attorney in Ohio.
On March 9, 2018, an Adams County Grand Jury indicted April
Schroeder, “Appellant,” on the above-referenced counts. Appellant’s
boyfriend, Michael Lykins, “Lykins” was also indicted on similar and
related counts. The victim was Appellant’s minor daughter, M.S., who had
just reached the age of thirteen at the time of the alleged sexual misconduct
set forth in the indictment.
{¶3} The record reveals that an investigator with the Adams County
Prosecutor’s Office, Kenny Dick, was contacted by a representative of
Adams County Children’s Services in December 2015. Children’s Services
had received a referral from M.S.’s school guidance counselor regarding the
allegations. Based on the report from Children’s Services, the investigator
scheduled M.S. to be interviewed at the Mayerson Center at Children’s
Hospital in Cincinnati, Ohio. Andrea Powers, a social worker at the
Mayerson Center, interviewed M.S. on December 10, 2015. The interview
was audio and video recorded.
{¶4} M.S. lived with her siblings, Appellant, Lykins, and Lykins’
extended family in Manchester, Ohio. Lykins had lived with Appellant for
approximately five years. Lykins babysat Appellant’s children when she
was at work. M.S. told Powers she had to obey Appellant and Lykins or she
Adams App. No. 18CA1077 3
would “get into trouble.” M.S. testified at trial that she feared both
Appellant and Lykins.
{¶5} In the forensic interview with Andrea Powers, M.S. detailed two
incidents of unlawful sexual activity which occurred in 2014. M.S.
explained that approximately ten days after her thirteenth birthday,
sometime in July 2014, she was at home with Appellant and Lykins.
Appellant and Lykins gave M.S. alcohol and made her watch a pornographic
video on YouTube. They told her they were “going to try something new.”
They told her to go to the bathroom and shave her “private part.” She was
given lingerie.
{¶6} M.S. was on the living room couch. Appellant put her fingers
inside M.S.’s private part. She also “played with” M.S.’s breasts. Lykins
also “fingered” M.S. M.S. stated, “Then they started raping me.” Her
mother sat on the couch beside M.S. while Lykins put his penis inside
M.S.’s private part. M.S. also stated that Appellant made M.S. “finger” her.
Lykins stopped when M.S. said she was tired and wanted to go to bed.
Appellant and Lykins allowed her to go to bed, but they told her not to tell or
“they [would] go off to prison.”
{¶7} The second allegation of sexual activity instigated by Appellant
and Lykins occurred on Halloween night 2014. M.S. told Powers that she
Adams App. No. 18CA1077 4
had just come back from trick or treating. Appellant and Lykins were drunk.
They told her to come to their bedroom, made her lie on their bed, and
started raping her.
{¶8} When Powers questioned M.S. about her mother’s actions that
night, M.S. stated “I don’t remember.” However, she explained that Lykins
told her to remove her clothes. Lykins and her mother were both naked.
Her mother lay on the bed beside her. Lykins put his penis inside M.S.
M.S. stated, “The [sic] started having sex with me and I told them I was tired
again, they told me to go into my bedroom and lay down and watch T.V.
with the other kids.” M.S. stated, “I went to my room and cried and I guess I
waited until I told my caseworker.”
{¶9} Andrea Powers inquired about M.S.’s caseworker. M.S.
explained that someone else in the family had made similar allegations
against another family member, indicating that was why she had a
caseworker. M.S. did not indicate that the other family member had touched
her or hurt her in any way.
{¶10} After arraignment and entering pleas of not guilty, Appellant
and Lykins eventually opted to go to jury trial. Their cases were
consolidated and trial began on September 25, 2018. Kenny Dick was the
State’s first witness. On cross-examination, Kenny Dick acknowledged the
Adams App. No. 18CA1077 5
delay in M.S.’s report made the likelihood of physical evidence being
located highly unlikely. Investigator Dick also acknowledged that he did not
interview any of the other persons living at the same residence as M.S.
Additionally, he admitted he had received a report that other minor female
family members of M.S. had made a report of unlawful sexual activity by
another male (not Lykins).
{¶11} M.S. also testified. At the time of trial, she was seventeen
years old. M.S. identified a photograph of the home she lived in with
Appellant, Lykins, and others in 2014. M.S. again described the events of
July and October 2014. As to the July “birthday” incident, M.S. added that
Appellant fixed M.S.’s hair and makeup and told her they were “going to
have some fun.” She remembered that she was given beer and vodka. M.S.
also testified she “tried not to remember things.”
{¶12} As to the October “Halloween” incident, M.S. specifically
testified that Appellant told her to remove her clothes. She further recalled
that when Lykins put his penis inside her vagina, he was on top of her with
his hands on her biceps. Appellant was lying on the bed beside M.S., and
she told her to “not say anything and if it hurt [they] would stop.” She also
testified Appellant touched her vagina on the outside. Appellant also took
M.S.’s hand and moved it to her own vagina.
Adams App. No. 18CA1077 6
{¶13} Andrea Powers also testified as to her experience and
credentials as a social worker and forensic interviewer at the Mayerson
Center. She explained the Mayerson Center’s multidisciplinary approach to
working with children who had made allegations of sexual abuse. She
described the forensic interview as a non-leading, non-biased interview
when a child has made a disclosure of sexual abuse, physical abuse, and
neglect. She testified the purpose of conducting the forensic interview was
to assess the child’s physical, medical, psychological, and emotional health,
as well as any risk to them, in order to recommend medical treatment and
psychological treatment. The information acquired through the forensic
interview was passed on to the rest of the medical team so that the team
could make a determination about how to proceed medically.
{¶14} Powers testified that on the day of the forensic interview, M.S.
presented as a “very typical child or adolescent that has come into the center.
Very kind of neutral, flat in her affect.” Powers identified the audio and
video recorded interview as State’s Exhibit 5. The interview was then
played for the jury. Powers testified that based on the interview, she made
the recommendation that M.S. seek counseling, “trauma-based if available.”
We have reviewed this recorded interview.
Adams App. No. 18CA1077 7
{¶15} Powers testified that most of her interviews in these types of
cases are delayed disclosures. She also explained the term “grooming.”
Powers testified that Appellant’s and Lykins’ acts of providing alcohol and
showing pornographic videos to normalize sexual behavior, or see how M.S.
would respond, were indicators of grooming. On cross-examination, Powers
admitted that there are “false reports.” However, she testified that research
indicates it is “very rare in child abuse.”
{¶16} At the conclusion of the State’s case, the trial court admitted
the State’s exhibits into evidence, including the recorded Mayerson
interview. Defense counsel then made a Crim.R. 29 motion for acquittal.
Appellant’s counsel submitted the motion generally, without argument.1
{¶17} Appellant called only one witness, Jacinda Fite, Lykins’ adult
daughter. She testified that during the relevant time period, she lived in the
household with Appellant, her father, M.S. and the additional family
members. Ms. Fite testified M.S. always acted “normal” and that she never
observed her father act inappropriately with M.S.
{¶18} At the conclusion of the trial this timely appeal followed.
Where pertinent, additional facts are set forth below.
ASSIGNMENTS OF ERROR
1 Co-defendant Lykins’ counsel argued that the element of force had not been shown. The trial court granted judgment of acquittal as to Count II of the indictment, gross sexual imposition, against Lykins.
Adams App. No. 18CA1077 8
I. “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY IMPROPERLY APPLYING THE RAPE SHIELD STATUTE AND REFUSING TO ALLOW APPELLANT TO CROSS-EXAMINE THE VICTIM ABOUT HER POSITIVE TEST FOR CHLAMYDIA.”
II. “THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT’S CONVICTIONS.”
III. “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ALLOWING THE STATE OF OHIO TO PLAY THE CHILD’S INTERVIEW FROM THE MAYERSON CENTER IN ITS ENTIRETY.”
IV. “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO MERGE ALLIED OFFENSES OF SIMILAR IMPORT AT THE TIME OF SENTENCING.”
V. “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY IMPROPERLY SENTENCING HER TO CONSECUTIVE PRISON TERMS.”
VI. “THE TRIAL COURT ERRED BY INCLUDING IN THE SENTENCING ENTRY THAT APPELLANT SHALL BE RESERVED FOR DENIAL FOR TRANSITIONAL CONTROL, IPP AND SHALL BE DENIED FOR THE PROGRAM FOR COMMUNITY BASED SUBSTANCE USE DISORDER TREATMENT.”
VII. “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT’S SIXTH AMENDMENT RIGHTS BY ENTERING JUDGMENT OF CONVICTION AFTER A TRIAL AT WHICH APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR HER DEFENSE.”
ASSIGNMENT OF ERROR I- THE RAPE SHIELD STATUTE
STANDARD OF REVIEW
{¶19} “A trial court has broad discretion in the admission or
Adams App. No. 18CA1077 9
exclusion of evidence, and so long as such discretion is exercised in line
with the rules of procedure and evidence, its judgment will not be reversed
absent a clear showing of an abuse of discretion with attendant material
prejudice to defendant.” State v. Lamb, 2018-Ohio-1405, 110 N.E.3d 564,
(4th Dist.), at ¶ 27, quoting State v. Richardson, 4th Dist. Scioto No.
14CA3671, 2015-Ohio-4708, at ¶ 62; quoting State v. Green, 184 Ohio
App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Absent an
abuse of discretion, an appellate court will not disturb a trial court's ruling
regarding the admissibility of evidence. State v. Linkous, 4th Dist. Scioto
No. 12CA3517, 2013-Ohio-5853, at ¶ 22; citing State v. Martin, 19 Ohio
St.3d 122, 129, 483 N.E.2d 1157 (1985). To constitute an abuse of
discretion, the trial court's decision must be unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). We review the trial court's rape shield rulings under R.C.
2907.02(D) for an abuse of discretion. State v. Minton, 2016-Ohio-5427, 69
N.E. 3d 1108, at ¶ 19; State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013
Ohio-3170, at ¶ 44.
LEGAL ANALYSIS
{¶20} Appellant was indicted and convicted of one count of rape,
R.C. 2907.02. Appellant argues that the trial court erred by not allowing
Adams App. No. 18CA1077 10
Appellant’s counsel to question M.S. at trial about her having been
diagnosed with chlamydia. Appellant sought to introduce evidence that
M.S. suffered from chlamydia but that Appellant did not have chlamydia as
material evidence that Appellant did not engage in sexual activity with M.S.
as alleged in the indictment.
{¶21} The record reveals that Appellant, through counsel, filed a
pretrial request for hearing pursuant to R.C. 2907.02(E) regarding the
admissibility of evidence pertaining to M.S.’s diagnosis of chlamydia.2
Appellant’s memorandum in support of the request explicitly stated:
Information received from the State’s initial Compliance with Discovery
indicates that M.S. disclosed alleged sexual activity in early December 2015.
As a result of her disclosure, she was subsequently tested for sexually
transmitted diseases in February 2016. At that time, the alleged victim
tested positive for chlamydia. Defendant, April Schroeder, and Co
Defendant, Michael Lykins, were then tested for chlamydia because of the
allegations and those tests were negative according to medical records
provided by the State of Ohio. The State of Ohio also subpoenaed and
2 R.C. 2907.02(E) provides: “Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.” The request was also brought on behalf of co-defendant Michael Lykins.
Adams App. No. 18CA1077 11
provided records of both Defendants which did not show that either
Defendant had been treated for chlamydia.
{¶22} Appellee, State of Ohio, responded by joining in the request for
a hearing. However, Appellee argued that evidence of the diagnosis of
chlamydia was not material to a fact issue in the case. Appellee argued that
there was a fifteen-month gap between the alleged conduct in the indictment
and M.S.’s test results in February 2016. Appellee concluded the results
were not relevant and that introducing evidence that the victim had a
sexually transmitted disease was extremely prejudicial with no probative
value, given the time span.
{¶23} Alternatively, Appellee pointed out that Appellant’s records
showed that even if she tested negative for chlamydia on March 1, 2016, it
did not mean she had never had chlamydia. Appellant’s medical records
demonstrated that she had been treated with antibiotics on two occasions in
late 2015 and early 2016. The antibiotic treatment could have cleared the
chlamydia or could have otherwise affected the chlamydia test. Again,
Appellee asserted the evidence of M.S.’s chlamydia diagnosis was more
prejudicial than probative.
{¶24} The trial court conducted the requested hearing prior to trial to
determine the issues raised by the parties. The trial court ruled that use of
Adams App. No. 18CA1077 12
the evidence would not be permitted. During the hearing, the court inquired
as to whether expert testimony would be presented to attack issues such as
whether the antibiotic Appellant used could have masked a chlamydia
diagnosis; whether the antibiotic used would have cured chlamydia; whether
chlamydia was present in Appellant at an earlier time; or was the presence of
chlamydia even tested. The parties acknowledged that there would be no
expert testimony on these questions posited by the court. The court found
that in light of the lack of conclusive answers to its inquiries, the testimony,
though potentially material, was also highly prejudicial, and that the
prejudicial nature of the testimony would have outweighed its probative
value.
{¶25} On appeal, Appellee reiterates the importance of the fact that
there was no expert testimony as to chlamydia testing and the associated
issues raised in the hearing. In effect, there would be no way for Appellant
to prove or disprove that the victim did or did not contract the disease from
Appellant or from a separate sexual partner. Appellee cites the trial court’s
ruling indicating said evidence of the victim’s disease would have only led
to speculation on the part of the jury and would therefore have served no
legitimate purpose. For the reasons which follow, we agree with Appellee.
Adams App. No. 18CA1077 13
{¶26} The rape statute sets forth Ohio's rape shield law in R.C.
2907.02(D), which states:
Evidence of specific instances of the victim's sexual activity,
opinion evidence of the victim's sexual activity, and reputation
evidence of the victim's sexual activity shall not be admitted under
this section unless it involves evidence of the origin of semen,
pregnancy, or disease, or the victim's past sexual activity with the
offender, 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. * * *
State v. Horsley, 2018-Ohio-1591, 110 N.E.3d 624, at ¶ 53.
{¶27} Many years ago now, in State v. Sowards, 4th Dist. Scioto No.
90CA1923, 1996 WL 409111 (July 12, 1996), we discussed application of
the rape shield law. On appeal, Sowards argued that evidence his
child/victim had sex with other men might have explained the origin of the
trichomonas vaginitis infection that a medical doctor had found in the child's
vagina. We noted that Sowards (1) made no argument that any of the men
who had sex with the child suffered from an infection that they might have
transmitted to the child; and (2) made no argument that he did not have an
infection at the time. “Rather, appellant merely guesse[d] that the child's
Adams App. No. 18CA1077 14
infection originated from one of these other men.” Id. At *5. (Emphasis
added.)
{¶28} In summary, in Sowards, we found that without evidence that
the other men had the disease and/or evidence that Sowards did not have the
disease, evidence that the child was raped by other men was not relevant to
the question of whether appellant raped the child. Id. See State v. Garrett,
12th Dist. Clermont No. CA89-08-070, 1990 WL 98222 (July 18, 1990), in
which the court determined that because the state was prepared to present
evidence that trichomoniasis can be cured within weeks, and because the
defendant and another person could have been cured between the time of the
rape and the time of the medical examination, the evidence that the child
rape victim suffered from trichomoniasis was both prejudicial and irrelevant.
Cf. State v. McMahon, 2d Dist. Clark Nos. 94CA49 and 94CA50, 1996 WL
173396, (Apr. 12, 1996) (abrogation on other grounds recognized by State v.
Fitch, 2d Dist. Clark No. 2002–CA-5, 2003-Ohio-203, fn. 5), in which the
court allowed evidence that the victim and the defendant both tested positive
for gonorrhea, and another man tested negative; State v. Hamilton, 2d Dist.
Clark No. C.A. 3015, 1993 WL 541608 (Dec. 29, 1993), in which the court
entertained the defendant's argument that contrary to the State's doctor's
Adams App. No. 18CA1077 15
diagnosis, the victim's sexually transmitted disease was chlamydia, a disease
the defendant did not have.
{¶29} Our decision finding that evidence that Sowards’ victim was
raped by other men was not relevant to the question of whether Sowards
raped the child was cited subsequently by the Eighth Appellate District in
State v. Kimmie, 8th Dist. Cuyahoga No. 1999 WL 236685 (April 22, 1999).
In Kimmie, the defendant claimed that the court erred by refusing to permit
Kimmie to cross-examine the victim about her past sexual activity. Kimmie
knew the hospital records showed the victim had contracted trichomonas, a
sexually transmitted disease manifesting itself as a vaginal infection.
Kimmie apparently did not have the disease and wished to inquire about the
victim's past sexual activity to suggest that he was not the individual who
had sexual relations with the victim.
{¶30} The Court noted that, generally, evidence of specific instances
of the victim's sexual activity is not admissible. See R.C. 2907.02(D). An
exception exists if the accused can show that the victim's past sexual
reputation or activity is necessary to prove the origin of semen, pregnancy,
disease or past sexual history with defendant. Even then, the court may
exclude such evidence if the court finds that it is irrelevant or is prejudicial.
Adams App. No. 18CA1077 16
State v. Guthrie, 86 Ohio App.3d 465, 467, 621 N.E.2d 551, (12th Dist.
1983).
{¶31} In Kimmie, the appellate court noted the defendant did not
clearly articulate the reasons why he should have been permitted to inquire
about the victim's past sexual activity as a means of discovering how she
contracted her sexually transmitted disease. Kimmie appeared to argue that
he could not have been the assailant since he did not have any sexually
transmitted disease. The Eighth District Court summarized:
[Kimmie’s] argument assumes one of two things-either the victim contracted
her sexually transmitted disease as a result of the rape or defendant should
have contracted the disease if he had sexual intercourse with the victim.
These assumptions can be assailed on any number of grounds, but even if
true, the victim's preexisting sexually transmitted disease has nothing to do
with the issue whether he forced sex on the victim as charged in the
indictments. (Emphasis added.) Even had the victim been sexually active
with other partners, that fact would prove nothing. See State v. Sowards, 4th
Dist. Scioto No. 90 CA 1923, 1996 WL 409911. The disease exception to
R.C. 2907.02(D) does not permit fishing expeditions - an accused cannot,
without more, raise irrelevant issues relating to the victim's sexually
transmitted disease without making some showing of relevancy. Since no
Adams App. No. 18CA1077 17
relevancy had been shown in this case, the court did not abuse its discretion
by refusing to permit defendant to question the victim.
{¶32} More recently in State v. Minton, supra, this court
reiterated that Ohio's rape shield law prohibits any evidence of the victim's
sexual history “unless it involves evidence of the origin of semen,
pregnancy, or disease, or the victim's past sexual activity with the offender.”
R.C. 2907.02(D). Id. at ¶ 30. Even if one of the enumerated exceptions
applies, introduction of such evidence is permitted only if the court finds that
the evidence is material to a fact at issue and that its prejudicial nature does
not outweigh its probative value. Id. Moreover, where the contested
evidence is submitted only to impeach the victim's credibility, such evidence
is prohibited by the rape shield law. State v. Ferguson, 5 Ohio St.3d 160,
450 N.E.2d 265 (1983), paragraph two of the syllabus.
{¶33} In Minton, the defendant sought to introduce evidence of the
victim’s statements regarding other men allegedly responsible for her
pregnancy. We found the trial court did not err in excluding the evidence
because we failed to see how this evidence was material to a fact at issue in
the case. There, Minton had admitted to having intercourse with the victim
as alleged in one of the counts of his indictment. Furthermore, Minton’s
trial counsel had admitted during an in camera hearing that the true motive
Adams App. No. 18CA1077 18
in attempting to introduce the statements was for the purpose of impeaching
the victim’s credibility. Noting that the rape shield law does not allow
evidence to be submitted merely to impeach the victim's credibility, we
opined that the origin of the victim's pregnancy had no bearing on whether
Minton and the victim engaged in sexual activities on the other alleged
dates. We concluded that the prejudicial nature of the contested evidence
outweighed its probative value.
{¶34} The same reasoning is equally applicable here. In Appellant’s
case, without expert evidence to clarify various issues relating to the disease
of chlamydia and chlamydia testing, the risk is that the evidence would only
tend to suggest that M.S. had multiple partners and be useful only in
attempting to damage her credibility with the jury. The evidence of M.S.’s
chlamydia diagnosis has no bearing on whether or not Appellant’s mother
committed the criminal sexual acts specified in the indictment.
{¶35} We find the case law in our district supports the trial court’s
ruling. In this case, excluding the evidence of M.S.’s chlamydia diagnosis
was not an abuse of discretion. Appellant’s argument has no merit. As
such, we overrule Appellant’s first assignment of error.
ASSIGNMENT OF ERROR III- RIGHT OF CONFRONTATION
{¶36} For ease of analysis, we next consider Appellant’s third
Adams App. No. 18CA1077 19
assignment of error. Appellant argues that his right of confrontation was
violated when the State of Ohio was permitted to play the entire interview of
M.S., which was conducted at the Mayerson Center. Appellant points to
inconsistencies between M.S.’s statements in the Mayerson interview and in
her trial testimony. Appellant also argues the out-of-court statements in the
interview were not made for purposes of medical diagnosis and treatment
due to a year-long delay in reporting the abuse. Thus, Appellant asserts that
the statements M.S. gave in the interview were also inadmissible hearsay, as
well as violative of his confrontation clause rights. For the reasons which
follow, we find no merit to Appellant’s assignment of error.
STANDARD OF REVIEW
{¶37} As set forth fully in Paragraph 19 above, the admission of
evidence is within the sound discretion of the trial court. State v. Sage, 31
Ohio St.3d 173, 510 N.E.2d 343 (1987), at paragraph two of the syllabus;
State v. Knauff, 4th Dist. Adams No. 10CA900, 2011-Ohio-2725, at ¶ 22.
LEGAL ANALYSIS
{¶38} The Mayerson interview was audio and video recorded on a
DVD and played during Andrea Powers’ testimony. Powers was the
professional from Cincinnati Children’s Hospital who interviewed M.S. and
identified Exhibit 5, the DVD of the recorded interview with M.S. Defense
Adams App. No. 18CA1077 20
counsel did not lodge an objection prior to the playing of the interview for
the jury and did not object when the DVD was offered and admitted into
evidence. The failure to object is significant because Evid. R. 103(A)
provides:
Error may not be predicated upon a ruling which admits
or excludes evidence unless a substantial right of the party is affected,
and (1) Objection. In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not apparent
from the context[.]
{¶39} Evid. R. 103(A) follows the longstanding rule that the failure to
make a specific objection to the admission of evidence waives the objection
and it cannot thereafter form the basis of a claim in an appellate court. Kent
v. State, 42 Ohio St. 426, 430–431, 1884 WL 256; Knauff, supra, at ¶ 25.
Crim.R. 52(B), however, provides a mechanism by which defendants may
obtain review of “plain errors” that affected “substantial rights” even where
they failed to object. Generally, appellate courts take notice of plain error
under Crim.R. 52(B) with the utmost caution, only under exceptional
circumstances and only to prevent a manifest miscarriage of justice. State v.
Gardner, 118 Ohio St.3d 420, 2008–Ohio–2787, 889 N.E.2d 995, ¶ 78; State
Adams App. No. 18CA1077 21
v. Patterson, 4th Dist. Washington No. 05CA16, 2006–Ohio–1902, ¶ 13;
State v. McCluskey, 4th Dist. Ross No. 17CA3604, 2018-Ohio-4859, at ¶ 11.
Plain error should be noticed if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. State v. Bundy, 4th
Dist. Pike No. 11CA818, 2012–Ohio–3934, 974 N.E.2d 139, ¶ 66. The
Supreme Court of Ohio has stated that appellate courts should
conservatively apply plain-error review, and notice plain error in situations
that involve more than merely theoretical prejudice to substantial rights.
State v. Steele, 138 Ohio St.3d 1, 2013–Ohio–2470, 3 N.E.3d 135, ¶ 30.
Thus, because Appellant failed to object to the playing of the Mayerson
interview at trial, she has waived all but plain error.
1. Confrontation Clause
{¶40} The Sixth Amendment to the United States Constitution gives a
defendant the right “to be confronted with the witnesses against him.” See
also Ohio Constitution, Article I, Section 10 (“the party accused shall be
allowed * * * to meet the witnesses face to face”). State v. Blanton, 4th
Dist. Adams No. 16CA1031, 2018-Ohio-1275, at ¶ 16. “[T]his bedrock
procedural guarantee applies to both federal and state prosecutions.” Knauff,
supra, at ¶ 41, quoting, Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065,
13 L.Ed.2d 923 (1965).” Crawford v. Washington, 541 U.S. 36, 42, 124
Adams App. No. 18CA1077 22
S.Ct. 1354, 158 L.Ed.2d 177 (2004). “Section 10, Article I [of the Ohio
Constitution] provides no greater right of confrontation than the Sixth
Amendment[.]” State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446(1990).
Therefore, we limit our review of Appellant’s argument to the federal right
of confrontation.
{¶41} Out-of-court statements that are “testimonial” in nature violate
the Confrontation Clause of the Sixth Amendment when introduced at trial if
the defendant has no opportunity to cross-examine the declarant on those
statements. Knauff, supra, at ¶ 42; Crawford at 68. In Crawford, the Court
provided a basic definition of testimonial statements known as the
“objective-witness test.” This test provides that statements are testimonial in
nature when they are “made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available
for use at a later trial[.]” Id. at 52.
{¶42} In Knauff, supra, at ¶ 42, we held that we need not determine
whether the statements played before the jury (recorded interview at the
Mayerson Center of a young child victim) were “testimonial.” We observed
that the Court in Crawford was explicit: “when the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at
all on the use of his prior testimonial statements.” Id. at fn. 9, citing
Adams App. No. 18CA1077 23
California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489
(1970). In Knauff, we pointed out that the child victim testified at trial and
was subject to cross-examination. The same is true in Appellant’s case.
M.S. testified at trial and was subject to cross-examination.
{¶43} Knauff nonetheless contended that he had no meaningful way
of confronting the statements made in the video. We noted, however, that
the record reflected that defense counsel had the opportunity to question the
child victim concerning the statements but chose not to. Defense counsel
even spoke with Knauff to determine whether there was any additional line
of questioning Knauff wished pursued. Counsel then stated on the record
that after consulting Knauff, he had no further questions. Consequently, we
held that even if some or all of the video-recorded interview was testimonial
in nature, Knauff had the opportunity to cross-examine D.K. on her
statements. We found no constitutional error in the court's decision to admit
the video-recorded interview.
{¶44} In support of her confrontation clause argument, Appellant
directs us to certain inconsistencies in M.S.’s statements to Andrea Powers
during the Mayerson interview, as opposed to her trial testimony regarding
the two incidents in which sexual activity allegedly occurred. In the
Mayerson interview, M.S. stated that during the October 2014 incident the
Adams App. No. 18CA1077 24
co-defendant told her to remove her clothes. When asked what Appellant
did during the October 2014 incident, M.S. stated “I don’t remember.”
{¶45} However, at trial, M.S. testified that during the October
incident, her mother told her to get undressed and the co-defendant again put
his penis inside her vagina. M.S. said that Appellant touched M.S. sexually
and ordered M.S. to touch her as well.
{¶46} A thorough review of the trial transcript indicates that when
defense counsel cross-examined M.S. at trial, he began by eliciting an
affirmative response from her that it was fair to say her memory would have
been fresher at the time she was interviewed by Andrea Powers. He also
elicited an affirmative response from her that she did recall Ms. Powers’
questioning about the October incident, and her response to Ms. Powers that
she did not remember what her mother did during the October incident. She
further acknowledged her response to Ms. Powers that she did not recall her
mother doing anything “except laying next to” her on the bed.
{¶47} The transcript shows defense counsel then switched to the July
incident and was able to elicit many “I don’t know” responses regarding
details such as the type of alcohol she was given, the type of container it was
in, whether her mother was drinking alcohol, whether the co-defendant was
drinking alcohol, and what time of day it occurred. M.S. later testified she
Adams App. No. 18CA1077 25
could not remember the name of the guidance counselor to whom she
reported the abuse. Defense counsel was able to successfully attack M.S.’s
memory and raise legitimate issues as to credibility.
{¶48} As defense counsel finished cross-examination, he further
elicited testimony, to which M.S. agreed, that the “story” she testified to in
court regarding her mother and the October incident was different than the
one she gave in the Mayerson interview. On re-direct, M.S. testified that
later in the Mayerson interview, she made a statement that her mother had
touched her breasts and private parts during the October incident. We have
observed that in the Mayerson interview, when first asked about the October
incident, M.S. generally testified: “[t]hey told me to come to their bedroom
and they made me lay on their bed and they started raping me there.”
{¶49} Defense counsel had the opportunity to cross-examine M.S.
Given defense counsel’s vigorous cross-examination of M.S. regarding the
inconsistencies in her statements, we do not think Appellant was denied her
constitutional right of confrontation. See Knauff, supra, at ¶ 43; see also
State v. Woodruff, 1st Dist. Hamilton Nos. C-140256 and C-140257, 2015
Ohio-2422, at ¶ 19. Under these circumstances, we cannot say that plain
error occurred.
2. Inadmissible Hearsay
Adams App. No. 18CA1077 26
{¶50} Appellant also argues that the Mayerson interview was
inadmissible as hearsay. Statements made outside of the courtroom, offered
at trial to prove the truth of what they assert, are generally inadmissible as
“hearsay” unless an exception applies. Evid.R. 801(C); Evid.R. 802; State v.
DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987); Knauff, supra
at ¶ 27. Out-of-court statements made for purposes of medical diagnosis or
treatment are hearsay, but are admissible in court under the hearsay
exception provided in Evid.R. 803(4). Such statements are only admissible
“insofar as reasonably pertinent to diagnosis or treatment.” Evid.R. 803(4).
{¶51} In Knauff, supra, the accused contended that the video-recorded
interview in his case did not satisfy the reliability threshold of Evid.R.
803(4). We observed that in deciding whether hearsay is reliable enough for
admission under Evid .R. 803(4), courts look at several factors. The first is
the “selfish-motive” doctrine, i.e., “the belief that the declarant is motivated
to speak truthfully to a physician because of the patient's self-interest in
obtaining an accurate diagnosis and effective treatment.” Knauff, supra, at
¶ 28, quoting, State v. Muttart, 116 Ohio St.3d 5, 2007–Ohio–5267, 875
N.E.2d 944, at ¶ 34, citing State v. Eastham, 39 Ohio St.3d 307, 312, 530
N.E.2d 409 (1988), (Brown, J., concurring). Another factor courts consider
is the medical professional's subjective reliance on the statement, because
Adams App. No. 18CA1077 27
“physicians, by virtue of their training and experience, are quite competent
to determine whether particular information given to them in the course of a
professional evaluation is ‘reasonably pertinent to diagnosis or treatment [,]’
and are not prone to rely upon inaccurate or false data in making a diagnosis
or in prescribing a course of treatment.” Id. at ¶ 41, 530 N.E.2d 409,
quoting King v. People (Colo.1990), 785 P.2d 596, 602. In Muttart, the
Supreme Court of Ohio observed that the professional reliance factor is of
“great import” in cases of child abuse. Id. In Knauff, at ¶ 29, we pointed to
Muttart’s non-exhaustive list of additional factors that a court should weigh
when considering whether out-of-court statements obtained from a young
child are admissible under this exception:
(1) Whether medical professionals questioned the child in
a leading or suggestive manner and whether the medical
professional followed proper protocol in eliciting a disclosure of
abuse;
(2) Whether the child had a reason to fabricate, e.g., a pending
legal proceeding or bitter custody battle;
(3) Whether the child understood the need to tell the medical
professional the truth; and
(4) Whether the age of the child could indicate the presence
Adams App. No. 18CA1077 28
or absence of an ability to fabricate a story.
Id. at ¶ 49, 875 N.E.2d 944; State v. Rutherford, 4th Dist. Pike No.
17CA883, 2018-Ohio-2638, at ¶ 20.
{¶52} In Knauff, supra, the defendant contended that the child
victim’s statements were inadmissible under Evid.R. 803(4) because she did
not understand that she was providing them for purposes of medical
treatment. In other words, the factor of the patient's incentive to tell the truth
to the medical professional for proper treatment was lacking. However, we
observed that at the very beginning of the interview, the victim
acknowledged her awareness of the purpose of the interview. The victim
revealed to the forensic interviewer that she had sexual contact with her
father. She then said, “that's why I'm here—to see a doctor.” We found her
statement satisfied the foundational requirement even though she was five
years-old.
{¶53} Here, Appellant argues that portions of the interview were not
for medical purposes and should have been excluded. She points out the
abuse allegations were not reported until over a year later. Thus, she
contends that with the delay in reporting it was unlikely that any medical
information could be obtained.
Adams App. No. 18CA1077 29
{¶54} We have reviewed the interview and the transcript. M. S. was
fourteen years old when she spoke to Andrea Powers. Powers’ testimony
described the interview process and explained that it was done in a non
leading manner in order to gather information and assess the child’s
physical, medical, psychological, and emotional health. Powers also
testified the purpose of the forensic interview is to provide medical and
psychological treatment. Powers further testified that based on the
interview, it was recommended that M.S. seek trauma-based counseling.
The recorded interview and interview transcript reflect this manner and
purpose.
{¶55} We have also reviewed the four additional reliability factors
found in Muttart. We find that Powers did not conduct the interview with
M.S. in a leading or suggestive manner. Powers explained that they were
talking about “things that are real and true,” and that it was o.k. for M.S. to
answer “I don’t know,” if she did not know the answer to a question.
Powers also explained that if she (Powers) said something wrong, it was o.k.
for M.S. to correct her. M.S. indicated she understood these directions.
Therefore, we find the record reflects that M.S. was old enough to
understand the need for truthfulness in seeking medical or psychological
treatment.
Adams App. No. 18CA1077 30
{¶56} It is also true that M.S. was old enough to appreciate the
negative consequences that fabricating allegations could have on her mother
and mother’s boyfriend. During M.S.’s cross-examination by co
defendant’s counsel, M.S. acknowledged that a sexual assault report was
filed against a male relative by her younger sister and another female child
in the household. The report was made two months before M.S. disclosed
the allegations against Appellant and Michael Lykins.
{¶57} Notwithstanding the delay in reporting, and the existence,
arguably, of a possible ulterior motive for reporting abuse, we conclude that
the interview was reasonably pertinent to psychological diagnosis and
treatment of M.S. As we stated in Knauff the victim’s mental health was an
important purpose of the forensic interview and the questions and answers
provided were reasonably pertinent to medical treatment. For these reasons,
we find the trial court did not commit plain error by allowing the interview
to be played for the jury and admitted into evidence. We find no abuse of
discretion or plain error occurred by the court’s ruling admitting the redacted
version of the video-recorded Mayerson interview under Evid.R. 803(4).
{¶58} For the foregoing reasons, we find no merit to Appellant’s third
assignment of error. It is hereby overruled.
Adams App. No. 18CA1077 31
ASSIGNMENT OF ERROR II- SUFFICIENCY AND/OR MANIFEST WEIGHT OF THE EVIDENCE
STANDARD OF REVIEW
{¶59} A claim of insufficient evidence invokes a due process concern
and raises the question of whether the evidence is legally sufficient to
support the verdict as a matter of law. State v. Blanton, 2018-Ohio-1278,
110 N.E.3d1, (4th Dist.) at ¶ 13; State v. Wickersham, 4th Dist. Meigs No.
13CA10, 2015-Ohio-2756, at ¶ 22; State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the
evidence, our inquiry focuses primarily upon the adequacy of the evidence;
that is, whether the evidence, if believed, reasonably could support a finding
of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of
review is whether, after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d
492 (1991). Furthermore, a reviewing court is not to assess “whether the
state's evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction.” Thompkins, 78 Ohio St.3d
at 390 (Cook, J., concurring).
Adams App. No. 18CA1077 32
{¶60} Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe the evidence in a light most favorable to the
prosecution. State v. Dunn, 4th Dist. Jackson No. 15CA1, 2017-Ohio-8469,
at ¶ 13; Wickersham, supra, at ¶ 23; State v. Hill, 75 Ohio St.3d 195, 205,
661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d
50 (1993). A reviewing court will not overturn a conviction on a
sufficiency-of-the-evidence claim unless reasonable minds could not reach
the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146,
162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739
N.E.2d 749 (2001).
{¶61} “ ‘ “Although a court of appeals may determine that a judgment
of a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the
evidence.” ’ ” Dunn, supra, at ¶ 15, quoting, Wickersham, supra, at ¶ 24,
quoting Thompkins, 78 Ohio St.3d at 387. “ ‘Weight of the evidence
concerns “the inclination of the greater amount of credible evidence, offered
in a trial, to support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the issue which is to be
Adams App. No. 18CA1077 33
established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” ’ ” Wickersham, supra, at ¶ 24,
quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972
N.E.2d 517, ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's
Law Dictionary 1594 (6th Ed.1990).
{¶62} When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence, and consider the credibility
of witnesses. The reviewing court must bear in mind, however, that
credibility generally is an issue for the trier of fact to resolve. Dunn, supra,
at ¶ 16; Wickersham, supra, at ¶ 25; State v. Issa, 93 Ohio St.3d 49, 67, 752
N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–
Ohio–1744, ¶ 31. “ ‘Because the trier of fact sees and hears the witnesses
and is particularly competent to decide “whether, and to what extent, to
credit the testimony of particular witnesses,” we must afford substantial
deference to its determinations of credibility.’ ” Barberton v. Jenney, 126
Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20, quoting State v.
Konya, 2nd Dist. Montgomery No. 21434, 2006–Ohio–6312, ¶ 6, quoting
State v. Lawson, 2nd Dist. Montgomery No. 16288 (Aug. 22, 1997). As the
Eastley court explained:
Adams App. No. 18CA1077 34
“ '[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment
must be made in favor of the judgment and the finding of facts.
* * *
If the evidence is susceptible of more than one construction,
the reviewing court is bound to give it that interpretation
which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment.' ”
Eastley at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,
Appellate Review, Section 60, at 191–192 (1978). Thus, an appellate court
will leave the issues of weight and credibility of the evidence to the fact
finder, as long as a rational basis exists in the record for its decision. State v.
Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282,¶ 24; accord
State v. Howard, 4th Dist. Ross No. 07CA2948, 2007–Ohio–6331, ¶ 6 (“We
will not intercede as long as the trier of fact has some factual and rational
basis for its determination of credibility and weight.”).
{¶63} Once the reviewing court finishes its examination, the
court may reverse the judgment of conviction only if it appears that the fact
finder, when resolving the conflicts in evidence, “ ‘ “clearly lost its way and
Adams App. No. 18CA1077 35
created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” ’ ” Dunn, supra, at ¶ 17; Wickersham,
supra, at ¶ 26, quoting Thompkins, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A
reviewing court should find a conviction against the manifest weight of the
evidence only in the “ ‘exceptional case in which the evidence weighs
heavily against the conviction.’ ” Id., quoting Martin, 20 Ohio App.3d at
175; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
{¶64} When an appellate court concludes that the weight of the
evidence supports a defendant's conviction, this conclusion necessarily
includes a finding that sufficient evidence supports the conviction. Dunn,
supra at ¶ 18; Wickersham, supra, at ¶ 27; State v. Pollitt, 4th Dist. Scioto
No. 08CA3263, 2010–Ohio–2556, ¶ 15. “ ‘Thus, a determination that [a]
conviction is supported by the weight of the evidence will also be dispositive
of the issue of sufficiency.’ ” State v. Lombardi, 9th Dist. Summit No.
22435, 2005–Ohio–4942, ¶ 9, quoting State v. Roberts, 9th Dist. Lorain No.
96CA006462 (Sept. 17, 1997).
{¶65} Given that appellant has asserted both that her convictions are
against the manifest weight of the evidence, as well as unsupported by
sufficient evidence, we will begin with the “manifest- weight” analysis.
Adams App. No. 18CA1077 36
LEGAL ANALYSIS
{¶66} Appellant argues that all the charges should be dismissed
because the prosecution did not prove two of the elements of rape, i.e.,
“sexual conduct” and “force.” Appellant further argues that the conviction
was based solely on the evidence provided by M.S.’s uncorroborated
testimony. As such, Appellant concludes her convictions are not supported
by sufficient evidence and are also against the manifest weight of the
evidence. For the reasons which follow, we disagree with Appellant’s
arguments.
{¶67} R.C. 2907. 02(A)(2), Rape, provides that “no person shall
engage in sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force.” Appellant argues that
sexual conduct with another person was not proven because M.S. testified on
direct examination that Appellant put her fingers “around my vagina.”
Appellant then asserts that the prosecution improperly characterized how
M.S. testified. The transcript reflects her testimony regarding the rape count
as follows:
Q: And when you initially got to the couch, who was with you?
A: Me and my mom.
Q: Okay. And what did your mother do?
Adams App. No. 18CA1077 37
A: My mother told me to lay on the couch and that’s what I did.
She then proceeded to put her fingers around my vagina.
Q: Okay. Do you remember how that made you feel?
A: I was uncomfortable and very scared.
Q: How do you know it was inside your vagina?
A: I felt it.
{¶68} Appellant argues that the question “how do you know it was
inside your vagina” was an improper characterization. Appellant argues that
taking M.S.’s testimony at face value, sexual conduct did not occur.
Appellant further argues the prosecution improperly played the Mayerson
interview, wherein M.S. tells Andrea Powers that Appellant put her fingers
inside of M.S.’s vagina, to bolster M.S.’s testimony.
{¶69} We begin with the observation that defense counsel did not
object to the alleged improper characterization. Therefore, the alleged error
will be reviewed for plain error only. Thus, we must consider whether the
prosecution’s characterization of the testimony affected the outcome of the
trial.
{¶70} Chapter 2907, Sex Offenses, provides that the definition of
sexual conduct is as follows in RC. 2907.01(A):
“Sexual conduct” means vaginal intercourse between a
Adams App. No. 18CA1077 38
male and female; anal intercourse, 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.
{¶71} Later in direct testimony regarding the rape incident, M.S.
testified as follows:
Q: I’m going to take you back to when you sat on the couch.
Initially when you got the couch what were you wearing?
A: The lingerie.
Q: And you’d said that your mom was touching you. What made
your mom stop touching you?
A: I told her I didn’t want to do it anymore.
{¶72} In this case, the jurors were instructed that they were to decide
all disputed questions of fact. We have already determined that the trial
court did not err in permitting the Mayerson interview to be played for the
jurors. In the interview, M.S. told Andrea Powers that her mother put her
fingers inside her “private part.” We are mindful that the trier of fact is free
Adams App. No. 18CA1077 39
to believe all, part, or none of the testimony of any witness, and we defer to
the trier of fact on evidentiary weight and credibility issues because it is in
the best position to gauge the witnesses' demeanor, gestures, and voice
inflections, and to use these observations to weigh their credibility. State v.
Chafin, at 32; Dillard at ¶ 28; citing State v. West, 4th Dist. Scioto No.
12CA3507, 2014–Ohio–1941, ¶ 23. Here, the jurors apparently found M.S.
to be a credible witness in both her recorded interview and at trial.
{¶73} Given that we have found no error in the trial court’s admission
of the Mayerson interview, we cannot find that the prosecutor’s
mischaracterization, if any, changed the outcome of the trial. The jury was
given enough information via the interview and the testimony from which it
could decide whether or not there was penetration. See State v. Ritchie, 12th
Dist. Warren No. CA-2017-11-155, 2018-Ohio-4256, at ¶ 81.
{¶74} Appellant next argues that the prosecution failed to prove all
counts because it failed to prove the necessary element of force. Appellant
concedes that because of the parent/child relationship the showing of force
may be proven by a lesser standard, such as subtle, slight, or emotional
coercion. However, Appellant argues that in this case, there was “zero
evidence” of force on any of the four counts. For this reason, Appellant
concludes all counts should have been dismissed.
Adams App. No. 18CA1077 40
{¶75} In State v. Shadoan, 4th Dist. Adams No.03CA764,
2004-Ohio-1756, we considered similar arguments regarding the lack of a
showing of force in a rape conviction. We noted that R.C. 2901.01(A)
defines force as “any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing.” Shadoan, supra, at ¶ 19.
To prove the element of force in a rape case involving a minor child when
the offender stands in loco parentis, the force need not be physical or brutal.
Id. Instead, the parent's position of authority and power, in relation to the
minor's vulnerability, creates a unique situation of dominance and control in
which explicit threats and displays of force are not necessary. See State v.
Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988); see, also, State v.
Riffle, 110 Ohio App.3d 554, 561, 674 N.E.2d 1214 (9th Dist. 1996);
Shadoan, supra.
{¶76} In Shadoan, at ¶ 20, we noted the Eskridge court’s explanation
of required force as follows:
The force and violence necessary to commit the crime of
rape depends upon the age, size and strength of the parties
and their relation to each other. With the filial obligation of
obedience to a parent, the same degree of force and violence
Adams App. No. 18CA1077 41
may not be required upon a person of tender years, as would be
required were the parties more nearly equal in age, size and strength.
{¶77} Thus, when the rape involves a child and that child's
parent, or person who stands in loco parentis, subtle and psychological forms
of coercion sufficiently show force. Shadoan, supra, at ¶ 21; see, e.g.,
Eskridge, 38 Ohio St.3d at 58–59, 526 N.E.2d 304. “As long as it can be
shown that the rape victim's will was overcome by fear or duress, the
forcible element of rape can be established.” Id.
{¶78} In this case, M.S. testified as follows regarding the type of
subtle and psychological power Appellant held over her:
Q: If your mom asked you to do something, in that time
frame when you were thirteen years, right after sixth grade,
would you obey her?
A: Yes.
Q: What, what would have happened if you didn’t do
what you were told?
A: I would get in trouble.
Q: What kind of trouble?
A: Mainly grounding.
***
Adams App. No. 18CA1077 42
Q: How do you feel [sic.] your mom if you didn’t
obey her?
A: I feared her.
Q: Because of that fear what would you do when you
were told what to do?
A: I would do it.
{¶79} Additionally, M.S. testified as to her feelings during both
incidents as being “scared and uncomfortable.” Apparently, in both
incidents, Lykins was on top of her. Specifically as to the Halloween
incident, M.S. testified that Lykins’ hands were on her biceps and she
“really” didn’t feel like she could get up.
{¶80} In Shadoan, we found sufficient evidence existed that the
defendant used force or the threat of force to compel the thirteen year old
victim. The victim stated that she felt uncomfortable and scared during each
incident. The jury reasonably could have inferred that the victim's will was
overcome by fear. Thus, we found that the circumstances sufficiently
demonstrated the element of force. Id. at ¶ 22.
{¶81} In this case, the trial court instructed the jury on the meaning of
force and threat of force. The trial court explained that when the
relationship between the victim and defendant is one of child and parent, or
Adams App. No. 18CA1077 43
one acting as a parent, “[t]he element of force need not be openly displayed
or physically brutal. It can be subtle, slight, psychological, and or
emotionally powerful.” The court continued:
“Evidence of an expressed threat of harm or evidence
of significant physical restraint is not required. If you find
beyond a reasonable doubt that under the circumstances
and evidence the victims will was overcome by fear, duress,
and or intimidation, the element of force has been proved.”
{¶82} Although it is true M.S. testified that her mom stopped
touching her when M.S. stated “I told her I didn’t want to do it anymore,”
that does not lessen any fear or emotional force M.S. experienced. M.S.
could not have known at the beginning of each incident that simply saying
she was tired would cause Appellant or Lykins to cease. We find that some
evidence of subtle or emotional force, which the jury apparently found
credible, was produced at Appellant’s trial.
{¶83} Finally, Appellant argues that the manifest weight of the
evidence fails to sustain a conviction on all counts because the evidence was
based solely on M.S.’s testimony. Appellant points out various
“weaknesses” of the case, including no physical evidence, the delay in
reporting, and the lack of eyewitness testimony. Appellant concludes the
Adams App. No. 18CA1077 44
testimony of a single witness, with no additional corroborating evidence, is
insufficient to sustain the convictions.
{¶84} While it is true that Appellant has been convicted upon
circumstantial evidence, with a great deal hinging upon M.S.’s credibility,
“ ‘[i]t is well settled that a rape conviction may rest solely on the victim's
testimony, if believed, and that “[t]here is no requirement that a rape victim's
testimony be corroborated as a condition precedent to conviction.” ’ ” State
v. Horsley, 2018-Ohio-1591, 110 N.E.3d 624 (4th Dist.) at ¶ 74; State v.
Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, at ¶ 62;
quoting State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio
1621, at ¶ 40; quoting State v. Lewis, 70 Ohio App.3d 624, 638, 591 N.E.2d
854 (4th Dist. 1990). Here, the jury apparently found M.S.’s testimony
compelling.
{¶85} We have reviewed the entire record, weighed the evidence and
all reasonable inferences, and have considered the credibility of witnesses.
We cannot say that in this case, the jury lost its way and created a manifest
miscarriage of justice requiring reversal of Appellant’s convictions. We find
Appellant’s convictions are supported by the manifest weight of the
evidence. Furthermore, having concluded that the weight of the evidence
Adams App. No. 18CA1077 45
supports Appellant’s convictions, we necessarily further find that sufficient
evidence supports the convictions.
{¶86} For the foregoing reasons, we find no merit to Appellant’s
second assignment of error. Accordingly, it is hereby overruled.
ASSIGNMENT OF ERROR IV- ALLIED OFFENSES OF SIMILAR IMPORT FOR PURPOSES OF SENTENCING
STANDARD OF REVIEW
{¶87} The sentencing transcript reveals that Appellant did not make a
merger of allied offenses argument at sentencing. The failure to raise
merger of allied offenses at a sentencing hearing forfeits all but plain error.
State v. Mack, 4th Dist. Washington Nos. 17CA34 and 17CA35, 2018-Ohio
5165, at ¶ 17; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 21, 28. As set forth above, to establish plain error defendant
must show that “but for a plain or obvious error, the outcome of the
proceeding would have been otherwise, and reversal must be necessary to
correct a manifest miscarriage of justice.” State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. Crim.R. 52. The
imposition of multiple sentences for allied offenses of similar import
amounts to plain error. State v. Richardson, 12th Dist. Clermont Nos.
CA2014-03,023, CA2014-06-044, CA2014-06-0454, 2015-Ohio-824, at
Adams App. No. 18CA1077 46
¶ 84; State v. Accorinti, 12th Dist. Butler No. CA2012–10–205, 2013–Ohio–
4429, ¶ 9.
LEGAL ANALYSIS
{¶88} The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides that no person shall “be subject for the
same offense to be twice put in jeopardy of life or limb,” and this protection
applies to Ohio citizens through the Fourteenth Amendment and is
additionally guaranteed by Article I, Section 10 of the Ohio Constitution.
Dunn, supra, at ¶ 87; Mullins, supra, at ¶ 8. This constitutional protection
prohibits multiple punishments for the same offense being imposed in a
single trial absent a clear legislative intent to the contrary. Id. See North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, (1969), overruled on
other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, (1989);
Missouri v. Hunter, 535 U.S. 359, 103 S.Ct. 673, (1983).
{¶89} The General Assembly enacted R.C. 2941.25 to specify when
multiple punishments can be imposed in the same trial:
(A) Where the same conduct by the defendant can be
construed to constitute two or more allied offenses of similar
import, the indictment or information may contain counts
for all such offenses, but the defendant may be convicted
Adams App. No. 18CA1077 47
of only one.
(B) Where the defendant's conduct constitutes two or
more offenses of dissimilar import, or where his conduct
results in two or more offenses of the same or similar kind
committed separately or with a separate animus as to
each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted
of all of them. Dunn, supra, at ¶ 88; State v. Mullins, 4th Dist.
Scioto No. 15CA3716, 2016–Ohio–5486, at ¶ 9.
{¶90} Merger is a sentencing question where the defendant bears the
burden of establishing his entitlement to the protection of R.C. 2941.25 by a
preponderance of the evidence. Dunn, supra, at ¶ 89; Mullins, supra, at
¶ 10. State v. Washington, 137 Ohio St.3d 427, 2013–Ohio–4982, 999
N.E.2d 661, ¶ 18. Appellate courts apply a de novo standard of review in an
appeal challenging a trial court's determination of whether offenses
constitute allied offenses of similar import that must be merged under R.C.
2941.25. State v Dunn, 4th Dist. Jackson No. 15CA1, 2017-Ohio-518, at
¶ 86. State v. Williams, 134 Ohio St.3d 482, 2012–Ohio–5699, 983 N.E.2d
1245, ¶ 28; State v. Cole, 4th Dist. Athens No. 12CA49, 2014–Ohio–2967,
¶ 7.
Adams App. No. 18CA1077 48
{¶91} Under current Ohio law, courts can only impose multiple
punishments in a single trial for a defendant's conduct under two situations:
1) where the charged crimes are not allied offenses, i.e., it is not possible to
commit multiple crimes with the same action, State v. Johnson, 128 Ohio
St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061; and 2) the crimes are allied
offenses but the defendant's actions have dissimilar import, i.e., the crimes
were committed separately, or with a separate animus, or the resulting harm
for each offense is separate and identifiable. Dunn, supra, at ¶ 89; State v.
Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892, paragraph one of
the syllabus. See Mullins, supra, at ¶ 10.
{¶92} Initially, we look to see if the charges Appellant faced represent
allied offenses. To accomplish that we must look at Appellant's conduct to
determine if it was possible to both commit one offense and commit the
other by that conduct. Johnson, supra, at ¶ 48; Mullins, supra, at ¶ 13. State
v. Peace, 11th Dist. Portage No. 2018-Ohio-3742, at ¶ 28.3 Appellant was
convicted of Count One, Rape and Count Two, Gross Sexual Imposition.
Count One alleged:
3 Stated differently, upon considering whether two offenses are based on the same conduct, a court focuses on whether the crimes were committed via a single act. State v. J.M., 10th Dist. Franklin No. 14AP-621, 2015-Ohio-5574, ¶ 56 (finding that the digital penetration was accomplished with the same movement and at the same time and animus as the gross sexual imposition); State v. Brindley, 10th Dist. Franklin No. 01AP–926, 2002-Ohio-2425, ¶¶ 19-33 (holding that touching the victim's breast and then touching her vaginal area are separate offenses).
Adams App. No. 18CA1077 49
On or about July 8, 2014 and July 18, 2014 in Adams County,
Ohio, April Schroeder did engage in sexual conduct with
a minor (DOB: 7-03-01) and the said April Schroeder
purposely compelled the minor to submit by force or
threat of force, said act in violation of Title 29 Ohio Revised
Code Sec. 2907.02(A)(2) and against the peace and dignity
of the State of Ohio.
Count Two alleged:
On or about and between July 8, 2014 and July 18, 2014,
in Adams County, Ohio, April Schroeder did have sexual
contact with a minor (DOB:7-3-01), not the spouse of the
said April Schroeder, or cause the minor, not the spouse of
the said April Schroeder, to have sexual contact with the
said April Schroeder or cause the minor and another to
have sexual contact and the said April Schroeder having
purposely compelled the minor to submit by force or
threat of force. Said act in violation of Title 29 Ohio
Revised Code Sex. 2907.05(A)(1) and against the peace
and dignity of the State of Ohio.
{¶93) As to Count One, M. S. testified the rape occurred when
Adams App. No. 18CA1077 50
she had just turned thirteen and had finished the sixth grade, which was
between July 8, 2014 and July 18, 2014. M.S. testified that her mother told
her to remove her clothes and her mother put her fingers “around my
vagina.” The prosecutor questioned, “How did you know it was inside your
vagina,” and M.S. responded, “I felt it.” This evidence supports the
penetration required for the sexual conduct of rape. As to Count Two, M.S.
also testified that during the same incident, her mother touched her on her
breasts.
{¶94} Appellant argues that both the rape and gross sexual imposition
occurred during the same incident and thus are allied offenses of similar
import. Appellant focuses on the close proximity of the alleged acts.
Appellee responds that M.S. suffered specific injuries with each separate act
of sexual conduct and contact. M.S. suffered injury when she was forced to
allow Appellant to insert her fingers into M.S.’s vagina, the sexual conduct
of the rape. M.S. also suffered injury when she was forced to allow
Appellant to touch her breasts, the sexual contact of the gross sexual
imposition.
{¶95} In State v. Roush, 10th Dist. Franklin No. 12AP-201, 2013
Ohio-3162, the appellate court found that even if defendant's conduct of
touching K.R.'s breasts occurred in close proximity to any of the acts of
Adams App. No. 18CA1077 51
rape, because defendant's touching of K.R.'s breast was conduct separate and
distinct from the acts needed to complete the rapes, and because a separate
animus existed for the sexual contact with K.R.'s breasts, the rape and gross
sexual imposition convictions were not allied offenses of similar import
subject to merger. Id. at ¶ 71. In State v. Cooper, 2d Dist. Montgomery
No. 23143, 2010–Ohio–5517, the appellate court noted that “[w]hen a
defendant gropes his victim's breast and buttocks, as well as rapes her,” the
acts “of groping are not merely incidental to the rape, and a trial court does
not err in separately sentencing the defendant for each of the counts of gross
sexual imposition based upon those actions, as well as for the rape.” Id. at ¶
24. This court has found that where the defendant “rubbed [the victim's]
breasts, * * * ran his hands through her vagina, and * * * performed oral sex
upon her, [e]ven assuming that Appellant’s rape and gross sexual imposition
offenses could be committed with the same conduct, they were committed
with a separate animus.” State v. Byrd, 4th Dist. Scioto No. 10CA3390,
2012–Ohio–1138, ¶ 110–11. We agree with the results reached in these
decisions.
{¶96} M.S. was forced to endure separate acts causing separate harm.
The jury apparently found credible M.S.’s statement to Andrea Powers that
Appellant inserted her fingers into M.S.’s vagina. Similarly, M.S. also
Adams App. No. 18CA1077 52
testified that Appellant touched her breasts. We find that Appellant’s
conduct as described in the July 2014 incident constitute two separate and
distinct acts occurred as alleged in Counts One and Two. Therefore, the trial
court did not commit plain error by failing to merge the Count One Rape and
Count Two Gross Sexual Imposition as allied offenses of similar import.
{¶97} For the foregoing reasons, we find no merit to Appellant’s
fourth assignment of error. Accordingly, it is hereby overruled.
ASSIGNMENT OF ERROR V- CONSECUTIVE SENTENCE
STANDARD OF REVIEW
{¶98} When reviewing felony sentences appellate courts must apply
the standard of review set forth in R.C. 2953.08(G)(2). State v. Rackley, 4th
Dist. Ross No. 17CA3616, 2019-Ohio-1981, at ¶ 21; State v. Shankland, 4th
Dist. Washington Nos. 18CA11, 18CA12, 2019-Ohio-404, at 18; State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23.
Under R.C. 2953.08(G)(2), “[t]he appellate court's standard for review is not
whether the sentencing court abused its discretion.” Instead, R.C.
2953.08(G)(2) provides that an appellate court may increase, reduce,
modify, or vacate and remand a challenged felony sentence if the court
clearly and convincingly finds either:
(a) That the record does not support the sentencing
Adams App. No. 18CA1077 53
court's findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or division (I)
of section 2929.20 of the Revised Code, whichever, if any, is
relevant; or,
(b) That the sentence is otherwise contrary to law.
LEGAL ANALYSIS
{¶99} Under R.C. 2929.14(C)(4), a trial court must engage in a three
step analysis and make certain findings before imposing consecutive
sentences. State v. Carter, 4th Dist. Pickaway No. 18CA1, 2018-Ohio-4503,
at ¶ 34; State v. Bever, 4th Dist. Washington No. 13CA21, 2014–Ohio–600,
¶ 16; State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013–Ohio–4649, ¶ 64;
State v. Howze, 10th Dist. Franklin Nos. 13AP–386, 13AP–387, 2013–
Ohio–4800, ¶ 18. Specifically, the trial court must find that:
(1) the consecutive service is necessary to protect the
public from future crime or to punish the offender;
(2) consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public; and one of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was
Adams App. No. 18CA1077 54
under a sanction imposed pursuant to section 2929.16, 2929.17,
or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm
caused by two or more of the multiple offenses so
committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness
of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
See Carter, supra, at ¶ 24.
{¶100} Appellant argues that the trial court did not make the
appropriate findings in the sentencing entry as required. Appellant concedes
that the necessary findings were made in open court on record. However,
the sentencing entry did not incorporate these findings for consecutive
sentences. When imposing consecutive sentences, a trial court must state the
Adams App. No. 18CA1077 55
required findings as part of the sentencing hearing, and by doing so it affords
notice to the offender and to defense counsel. See Crim.R. 32(A)(4).
{¶101} Because a court speaks through it journal, State v. Brooks, 113
Ohio St.3d 199, 2007–Ohio–1533, 863 N.E.2d 1024, ¶ 47, the court should
also incorporate its statutory findings in the sentencing entry. State v.
Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659, at ¶ 29;
Carter, supra, at ¶ 35; State v. Hart, 4th Dist. Athens No. 13CA8, 2014 WL
3733, at ¶ 38. The findings required by the statute must be separate and
distinct findings; in addition to any findings relating to the purposes and
goals of criminal sentencing. Bever, supra, at ¶ 17; State v. Nia, 8th Dist.
Cuyahoga No. 99387, 2013-Ohio-54424, at ¶ 22. Here, Appellant requests
that the court modify her sentences to a concurrent 11-year sentence in the
Ohio Department of Corrections. Appellant suggests in the alternative that
the matter be remanded to the trial court for a new sentencing hearing.
{¶102} Appellee concedes that the trial court stated on the record at
the sentencing hearings the required findings for Appellant’s consecutive
sentence but did not incorporate those findings in the sentencing entry.
However, Appellee disagrees with Appellant’s assertion that the imposition
of the consecutive sentence was invalid and requires automatic modification
to a concurrent sentence or remand to the trial court. Given that the trial
Adams App. No. 18CA1077 56
court made all of the necessary findings on the record before imposing
consecutive sentences, we view the failure to incorporate the statutory
findings into the sentencing entry as a simple clerical mistake. In State v.
Moore, 4th Dist. Adams No. 18CA1070, 2019-Ohio-1467, we observed at
¶ 20, “[S]uch a clerical mistake may be corrected by the court through a
nunc pro tunc entry to reflect what actually occurred in open court.” State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 30.
{¶103} Because the consecutive sentence was clearly imposed on the
record and in Appellant’s presence, it appears that we need not vacate nor
remand the trial court’s judgment. Therefore, we overrule Appellant’s fifth
assignment of error and affirm the judgment of the trial court. Rather,
pursuant to App.R. 9(E), we instruct the trial court to issue a nunc pro tunc
sentencing entry that includes the required findings so as to accurately
reflect the sentence imposed on the record during the sentencing hearing.
State v. Scoggins, 4th Dist. Scioto No. 16CA3767, 2018-Ohio-8989, at
¶ 109.
ASSIGNMENT OF ERROR VI- SENTENCING ENTRY
STANDARD OF REVIEW
{¶104} The standard of review for felony sentences has been set forth
fully above.
Adams App. No. 18CA1077 57
LEGAL ANALYSIS
{¶105} Appellant argues that the trial court improperly made
Appellant automatically ineligible for transitional control, IPP, or
community-based substance treatment at the time of sentencing. Appellant
directs our attention to the Fifth Appellate District’s decision in State v.
Spears, 5th Dist. Licking No. 10-CA-95, 2011-Ohio-1538, which held that it
is error for the trial court to deny placement into prison programming at the
time of sentencing. In Appellant’s case, the second page of the Judgment
Entry on Sentence states:
(1) the defendant’s placement/transfer in to a Transitional
Control Program (ORC 2967.26) is specifically “ RESERVED
FOR DENIAL”; and, (2) defendant’s placement/transfer
into an Intensive Program Prison (O.R.C.5120.032)
is specifically “RESERVED FOR DENIAL.”4
The entry further orders that the Defendant’s placement/transfer/eligibility
into the “Program for Community Based Substance Use Disorder
Treatment,” pursuant to O.RC. 5120.035. is denied.
{¶106} In response to Appellant’s argument, Appellee contends that
the trial court did not improperly deny transitional control, the intensive
4 The entry’s “reservations of denial” are contingent upon notification that the Ohio Department of Rehabilitation and Corrections desires consideration of the Appellant for those programs.
Adams App. No. 18CA1077 58
prison program, or community-based substance abuse treatment. Appellee
asserts that Appellant’s convictions for rape and gross sexual imposition
caused Appellant to be ineligible for those programs. Our research reveals
that Appellee is correct.
1. Transitional Control
{¶107} Ohio Admin. Code Sec. 5120-12-01(A), establishment of a
transitional control program and minimum criteria defining eligibility states:
Section 2967.26 of the Revised Code permits the adult
parole authority of the department of rehabilitation and
correction to transfer eligible prisoners to transitional control
status for the purpose of closely monitoring a prisoner's adjustment
to community supervision during the final one hundred eighty
days of the prisoner's confinement.
{¶108} In State v. Riley, 4th Dist. Athens No. 2012-Ohio-1086, Riley,
who was convicted of aggravated vehicular assault and aggravated vehicular
homicide, challenged the trial court’s denial of his transfer to transitional
control. We observed at ¶ 15:
Riley is already disqualified from being transferred to transitional
control. Specifically, to be eligible for transfer to transitional control,
a prisoner “shall not have any past or current convictions for* * *
Adams App. No. 18CA1077 59
aggravated vehicular assault, section 2903.08, * * * or aggravated
vehicular homicide, section 2903.06 of the Revised Code.” Ohio
Adm. Code 5120–12–01(F)(12). This is exactly to what Riley pled:
aggravated vehicular assault, under R.C. 2903.08(A)(2)(b), and
aggravated vehicular homicide, under R.C. 2903.06(A)(2)(a).
Consequently, Riley is ineligible for transitional control and the trial
court's disapproval is moot.
{¶109} The same is true in Appellant’s case. In order to be
eligible for transitional control transfer pursuant to R.C. 2967.26, Ohio Adm.
Code 5120-12-01(F)(10) provides that prisoners shall not have any past or
current convictions for a violation of any sex offense included in Chapter
2907 of the Revised Code, except in limited circumstances not applicable
here. Consequently, Appellant is not eligible for transitional control and the
trial court’s reservation of denial is moot.
2. Intensive Program Prison
{¶110} Intensive Program Prison, commonly referred to as
“IPP,” “ ‘refers to several ninety-day programs, for which certain inmates
are eligible, that are characterized by concentrated and rigorous specialized
treatment services. An inmate who successfully completes an IPP will have
his/her sentence reduced to the amount of time already served and will be
Adams App. No. 18CA1077 60
released on post-release supervision for an appropriate time period.’ ” State
v. Turner, 8th Dist. Cuyahoga No. 2016-Ohio-3325, at ¶ 28, quoting, State v.
Peltier, 2d Dist. Champaign No. 2019-Ohio-569, at 20, quoting, State v.
Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, 944 N.E.2d 258, ¶ 12 (2d
Dist.), quoting the Ohio Department of Correction and Rehabilitation
website. IPPs focus on “ ‘educational achievement, vocational training,
alcohol and other drug abuse treatment, community service and conservation
work, and other intensive regimens or combinations of intensive
regimens.’ ” Howard, supra, at ¶ 10, quoting R.C. 5120.032. Trial courts
have discretion to recommend placement of an offender into an IPP pursuant
to R.C. 5120.032.
{¶111} R.C. 5120.032(B)(2)(a) provides that a prisoner who is
serving a prison term for a felony of the first degree is not eligible to
participate in an intensive program prison. State v. Jones, 2d Dist.
Montgomery No. 24075, 2011-Ohio-4013, at ¶ 43. Appellant was convicted
and sentenced for rape, a felony of the first degree. R.C. 5120.032(B)(2)(a)
specifically excludes individuals serving prison terms for first and second
degree felonies from participating in an IPP. Hence, Appellant is not
eligible for IPP. Therefore, again the trial court’s reservation of denial into
IPP is moot.
Adams App. No. 18CA1077 61
3. Community-based Substance Use Disorder Treatment Program
{¶112} The community-based substance use disorder treatment
program, R.C. 5120.035, provides in pertinent part as follows at subpart (A):
(1) “Community treatment provider” means a program that provides
substance use disorder assessment and treatment for persons and that
satisfies all of the following:
(a) It is located outside of a state correctional institution.
(b) It shall provide the assessment and treatment for qualified
prisoners referred and transferred to it * * *
(4) “Qualified prisoner” means a person who satisfies all of the following:
(a) The person is confined in a state correctional institution
under a prison term imposed for a felony of the fourth
or fifth degree that is not an offense of violence. * * *
e) The person is not serving any prison term other than
the term described in division (A)(4)(a) of this section.
{¶113} Once again, it is obvious that Appellant may not be
considered a “qualified prisoner.” While Appellant is serving a portion of
her prison sentence for gross sexual imposition convictions, she is also
serving a term of imprisonment for rape. Thus, she is serving a prison term
other than the term described in division (A)(4)(a). Therefore, the trial
Adams App. No. 18CA1077 62
court’s denial of her placement into a community-based substance use
disorder treatment program is not in error.
{¶114} For the foregoing reasons, we find no merit to Appellant’s
sixth assignment of error. Under the applicable statutes, she is simply not
eligible for the transitional control program, the intensive prison program, or
the community-based substance use disorder treatment program. As such,
Appellant’s sixth assignment of error is hereby overruled.
ASSIGNMENT OF ERROR VII- INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
{¶115} Criminal defendants have a right to the effective assistance of
counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970), fn.14; State v. Runnion, 4th Dist. Washington Nos.
18CA7, 18CA8, 2019-Ohio-189. To establish constitutionally ineffective
assistance of counsel, a criminal defendant must show (1) that his counsel's
performance was deficient and (2) that the deficient performance prejudiced
the defense and deprived him of a fair trial. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Issa,
93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d
123, 139, 694 N.E.2d 916 (1998). “In order to show deficient performance,
the defendant must prove that counsel's performance fell below an objective
Adams App. No. 18CA1077 63
level of reasonable representation. To show prejudice, the defendant must
show a reasonable probability that, but for counsel's errors, the result of the
proceeding would have been different.” State v. Conway, 109 Ohio St.3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to establish either
element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.
06CA3116, 2008-Ohio-968, ¶ 14.
{¶116} When considering whether trial counsel's representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance[.]” Strickland at 689; Runnion, supra, at ¶ 22. “A
properly licensed attorney is presumed to execute his duties in an ethical and
competent manner.” State v. Taylor, 4th Dist. Washington No. 07CA11,
2008-Ohio-482, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477
N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel's errors were so serious that he
or she failed to function as the counsel guaranteed by the Sixth Amendment.
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 61.
B. LEGAL ANALYSIS
{¶117} Under the final assignment of error, Appellant argues
Adams App. No. 18CA1077 64
that she received ineffective assistance in that (1) her counsel failed to object
to the Mayerson interview which should have been excluded at trial as it was
violative of her federal and state rights of confrontation and also
inadmissible hearsay; and (2) counsel failed to proffer expert testimony to
answer the trial court’s questions so that the court would have allowed
testimony that M.S. had been diagnosed with chlamydia while Appellant had
not received the same diagnosis. However, we have previously found that
Appellant’s right of confrontation was not violated because the victim
testified and Appellant’s counsel had the opportunity to cross-examine her.
Furthermore, the Mayerson interview was not inadmissible hearsay because
it was made for the purposes of diagnosis and treatment.
{¶118) As to the issue of the chlamydia diagnosis, Appellee argues
that nothing about admission of the proposed evidence would have changed
the outcome of the trial, but it would have led to “wild” speculation of the
trier of fact. Appellee concludes that neither of Appellant’s arguments
regarding her ineffective assistance claim have merit. For the reasons which
follow, we agree with Appellee.
1. The Mayerson Interview
{¶119} As set forth above in Assignment of Error Three, we
Adams App. No. 18CA1077 65
found no error, let alone plain error, occurred by the admission of the
Mayerson interview into evidence at trial. In our resolution of the issue, we
pointed out that M.S. testified in court and was available for cross
examination. The case law is clear. See Knauff, supra, at ¶ 42. Defense
counsel vigorously cross-examined M.S. as to the specifics of Appellant’s
conduct and the co-defendant’s conduct.
{¶120} Defense counsel was able to elicit many “I don’t remember”
responses in an effort to damage the victim’s credibility. Defense counsel
was able to attempt to discredit M.S. by her lack of recall at times; by the
evidence that many other people were nearby at times and no one reported
any wrongful sexual conduct; by the victim’s own delay in reporting the
alleged wrongful sexual conduct; and by suggesting that M.S. may have had
ulterior motives for making false allegations.5 We found no merit to
Appellant’s argument that her confrontation clause rights were violated.
{¶121} Similarly, we found no merit as to Appellant’s hearsay
argument. We found that the Mayerson interview was reasonably pertinent
for purposes of medical and psychological diagnosis. For this reason as
5 Defense counsel elicited testimony that M.S. enjoyed staying with her grandmother, suggesting that the grandmother gave M.S. preferential treatment from the other grandchildren and further suggesting that M.S. had an ulterior motive for her allegations against Appellant and Lykins: removal from the household and placement with the grandmother.
Adams App. No. 18CA1077 66
well, we found the trial court did not abuse its discretion or commit plain
error.
{¶122} Having found no error occurred, let alone plain error, we
cannot say that Appellant’s trial counsel rendered ineffective assistance by
failing to object to the Mayerson interview. Based on current Ohio law and
the precedent in this district, it is highly unlikely that the trial court would
have excluded the interview. For these reasons, we do not find trial
counsel’s performance was deficient for failure to make a fruitless objection
or argument. See State v. Blanton, 208-Ohio-1278, 110 N.E. 3d 1 (4th
Dist.), (Counsel can hardly be deemed ineffective for failing to advance a
fruitless argument. See State v. Lytle, 4th Dist. Ross No. 96CA2182, 1997
WL 118069, (Mar. 10, 1997). We thus find no merit to Appellant’s
argument that trial counsel was deficient for failing to object to the
Mayerson interview.
2. The Evidence of The Chlamydia Diagnosis
{¶123} In Appellant’s brief, she argues that trial counsel was
ineffective by failing to proffer expert testimony or evidence that would
have persuaded the trial court to allow the evidence that M.S. had been
diagnosed with chlamydia while Appellant was not diagnosed with it. As
referenced above, Appellant’s trial counsel filed a motion requesting a “rape
Adams App. No. 18CA1077 67
shield hearing” pursuant to R.C. 2907.02(E), to determine if the chlamydia
evidence was admissible. The trial court granted Appellant’s motion for the
hearing.
{¶124} At the hearing, the trial court mentioned that without expert
testimony on various pertinent issues relating to the diagnosis, “we are
asking the jury to speculate at a tremendous degree.” Consequently, the
court denied Appellant’s motion. Appellant now argues trial counsel’s
failure to obtain expert testimony clarifying the issues and supporting the
admissibility of the chlamydia diagnosis constitutes ineffective assistance.
We disagree.
{¶125} Our review of the record demonstrates that Appellant’s
trial counsel was court appointed. “As a matter of due process, indigent
defendants are entitled to receive the ‘raw materials' and the ‘basic tools of
an adequate defense,’ which may include provision of expert * * *
assistance.” State v. Mason, 82 Ohio St.3d 144, 149, 1998–Ohio–370, 694
N.E.2d 932, quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (other
citations omitted). “Due process * * * requires that an indigent criminal
defendant be provided funds to obtain expert assistance at state expense only
where the trial court finds, in the exercise of a sound discretion, that the
defendant has made a particularized showing (1) of a reasonable probability
Adams App. No. 18CA1077 68
that the requested expert would aid in his defense, and (2) that denial of the
requested expert assistance would result in an unfair trial.” Mason at
syllabus.
{¶126} Given Appellant’s indigency, it is reasonable to conclude that
she would have not been able to hire an expert and pay for his or her time in
reviewing records and preparing a written opinion and/or testifying at trial.
As set forth above, the trial court had discretion whether or not to order that
Appellant be provided funds to obtain the expert at state expense. The body
of Appellant’s brief fails to advance any argument that there was a
reasonable probability that a requested expert would have aided in her
defense or that denial of a request for expert assistance would have resulted
in an unfair trial. Without anything to bolster Appellant’s argument on
appeal, it is sheer speculation that an expert would have been helpful to
Appellant’s defense at trial.
{¶127} We have previously found that whether or not M.S. had
chlamydia was not relevant to whether or not Appellant committed illegal
sexual conduct. We also find that there is no reasonable probability that an
expert would have aided in Appellant’s defense. Trial counsel’s failure to
request an expert does not constitute deficient performance.
Adams App. No. 18CA1077 69
{¶128} Appellant has failed to establish deficient performance on the
part of trial counsel. Failure to establish this element is fatal to her
ineffective assistance claim. We find no merit to the final assignment of
error. Accordingly, it is hereby overruled.
Outcome: We find no merit to Appellant’s seven assignments of error.
Accordingly, we affirm the judgment of the trial court. However, having
noticed a clerical error called to our attention in consideration of Appellant’s
fifth assignment of error, the judgment of the trial court is affirmed with
instructions to correct the clerical error regarding the consecutive sentence
that was imposed during the sentencing hearing but omitted from the
sentencing entry.
Plaintiff's Experts:
Defendant's Experts:
Comments: