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Date: 08-10-2020
Case Style:
STATE OF OHIO vs. SHERI K. TROUT
Case Number: 19CA3866
Judge: George C. Smith
Court: IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Plaintiff's Attorney: Shane A. Tieman, Scioto County Prosecuting Attorney, Jay Willis, Assistant
Prosecuting Attorney
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
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{¶2} On February 28, 2018, Appellant and Brian E. Powers were
jointly indicted as follows:
Count One, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of the
first degree;
Count Two, Illegal Use of Minor in Nudity-Oriented Material or
Performance, R.C. 2907.323(A)(3), 2907.323(B), a felony of the fifth
degree;
Count Three, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of
the first degree;
Count Four, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of the
first degree;
Count Five, Kidnapping, R.C. 2905.01(A)(4), 2905.01(C)(1), a felony
of the first degree;
Scioto App. No. 19C3866 3
Count Six, Kidnapping, R.C.2905.01(A)(4), 2905.01(C)(3), a felony
of the first degree;
Count Seven, Endangering Children, R.C. 2919.22(A),
2919.22(E)(2)(c), a felony of the third degree; and,
Count Eight, Intimidation of an Attorney, Victim, or Witness in a
Criminal Case, R.C. 2921.04(B)(1), 2921.04(D), a felony of the third
degree.1
The alleged victim, A.C., is Appellant’s granddaughter. A.C. was
four years old at the time of the alleged crimes. Powers, the co-defendant,
was Appellant’s boyfriend. The allegations of sexual misconduct came to
light when A.C.’s father, Brian Carver, and her step-mother, Michelle
Carver, took her to the emergency room for an unrelated medical condition.
{¶3} Appellant was subsequently served with the indictment,
arraigned, and appointed counsel. The matter was scheduled for a jury trial
and continued several times. The State filed several motions, including a
motion to consolidate the defendants’ cases for purposes of trial; a motion
permitting the State of Ohio to provide the testimony of the minor victim via
closed-circuit television; and a memorandum regarding introduction of
hearsay in child abuse cases. Defense counsel also filed a Memorandum
Contra to State’s Motion to Consolidate; a motion to dismiss based on
1
Appellant was not joined as to Counts Two and Eight. Several counts also contained specifications for
Powers as a sexually violent predator.
Scioto App. No. 19C3866 4
failure to provide discovery; and a motion to dismiss based on speedy trial
violations.
{¶4} On September 25, 2018, the trial court held a hearing in
chambers to determine the issue of A.C.’s competence to testify. The trial
court found A.C. to be a competent witness.
{¶5} The matter proceeded to trial. The prosecution’s theory of
Appellant’s guilt was through her complicity to Powers’ acts of sexual
abuse. A court order issued from the Scioto County Common Pleas Court,
Juvenile Division, dated April 21, 2017, contained provisions modifying
Appellant’s visitation with A.C. In particular, the order contained provisions
explicitly stating that: (1) Hannah Giles, A.C.’s mother, had no visitation
privileges; and, (2) Brian Powers was not to be present for any visits. The
prosecutor argued that Appellant was complicit with Powers’ criminal
conduct by failing to comply with the juvenile court’s order and permitting
Powers to be present in her home when A.C. visited. The State of Ohio
presented 16 witnesses, including A.C.
{¶6} The following facts were introduced into evidence at trial: On
July 20, 2017, Brian Carver left A.C. at Appellant’s house pursuant to the
visitation order. The next morning, Alice Hamilton, Appellant’s mother,
appeared at Carver’s home with A.C. She informed Carver that Appellant
Scioto App. No. 19C3866 5
and Powers had gotten into an argument and “it was just best that [A.C.]
came home. A.C. had bug bites on her legs.
{¶7} Later in the day, Brian and Michelle Carver took A.C. to Mercy
Urgent Care to have the bug bites examined. According to Brian Carver,
when the doctor left the room, A.C. put her hand on her breast and vaginal
area. She had never done that before. When she was asked what was
wrong, A.C. turned white. She appeared scared and upset. Then A.C. told
them, “Peter does that to [me].” Michelle Carver recalled the revelation
slightly differently. She testified that when the doctor stepped out, A.C. told
them that they were “playing doctor and Peter hurt me. He touched me
down there.” Michelle Carver left the room, found the doctor, and advised
that they thought A.C. had been molested. Carver further testified that after
the allegations surfaced, A.C. exhibited turbulent behavior such as crying,
hiding, and having tantrums in their home.
{¶8} The Carvers were advised to take A.C. to Southern Ohio
Medical Center’s (SOMC) Emergency Room. SOMC called the Portsmouth
Police Department and Detective Michael Hamilton arrived to interview
A.C. From there, the Carvers were advised to take A.C. to Adena “where
they specialized in sexual assault.”
Scioto App. No. 19C3866 6
{¶9} At Adena, A.C. was examined by Ashley King, a SANE2
nurse
who collected the rape kit evidence from A.C. Ms. King specifically
remembered A.C. and the difficulty of performing the physical examination.
A.C. was scared and crying hysterically. At one point, A.C. sat up, looked at
King and said, “That’s why I popped up when he did it, because it hurt so
bad.” King testified there was redness in the vaginal area; abrasions,
redness, and swelling; redness and swelling down into the rectal area; and a
“beefy red and swollen” hymen. The Carvers and A.C. were referred to the
Child Protection Center in Ross County, Ohio for further evaluation.
{¶10} At the Child Protection Center, Ashley Muse-Gigley, another
SANE nurse, interviewed A.C. and recorded the interview, which was
played for the jury. Dr. Zoran Naumvoski, a director at the Child Protection
Center, testified he interviewed A.C. two weeks later. In speaking with
A.C., she told Dr. Naumvoski that “Pappaw Brian hurt her.” Upon doing so,
A.C. immediately pointed to her genital area.
{¶11} In addition to the specifics of the abuse as reported, A.C.
testified that “Peter” wasn’t real. * * * Brian Powers told [me]to say that.”
A.C. testified she told the lie “because he told me to.”
2
Sexual Assault Nurse Examiner.
Scioto App. No. 19C3866 7
{¶12} Cynthia Justice testified she treated A.C. from August 2017 to
June 2018. She diagnosed A.C. with post-traumatic stress disorder.
Although Justice was aware of the allegations of child abuse, she did not
learn of them from A.C. until March 16, 2018, during a home visit. Justice
read from her therapy note of that date as follows:
While discussing her daily activities she blurted out details - -
details of the alleged sexual abuse by grandmother’s boyfriend.
She stated, I yelled for Sheri to help and she came in and told
me - - or told him, referring to Brian Powers, as she called him
by name, to get off my daughter, referring to self, this is in
parenthesis [sic], or I will smack you in the face. He once
busted the bathroom door. He came back and made her bleed.
She called the cops. She protected me.
{¶13} In addition to witness testimony, the State offered 34 exhibits
which were admitted into evidence, including: the juvenile court’s entry;
medical records of A.C. from Adena Health System, the Child Protection
Center, and Mahajan Therapeutics; A.C.’s rape kit; oral swabs; the
interview of A.C. from the Child Protection Center; a DNA analysis report
from the Ohio Bureau of Criminal Investigation (“BCI”); photographs of
Appellant’s home; and chain of custody forms from the Portsmouth Police
Scioto App. No. 19C3866 8
Department and BCI. At the close of trial, Appellant was convicted of three
counts of rape, R.C. 2907.02(A)(1)(b) and one count of endangering
children, R.C. 2919.22(A)/R.C. 2919.22(E)(2)(c).
{¶14} The trial court stated as follows:
[T]he defendant has been convicted by the jury of Count 1:
Rape, in violation of Ohio Revised Code Section
2907.02(A)(1)(b), a felony of the first degree. The Jury
further found, beyond a reasonable doubt, that the victim was
under the age of ten (10). Count 3: Rape, in violation of
Ohio Revised Code Section 2907.02(A)(1)(b), a felony of the
first degree. The Jury further found, beyond a reasonable
doubt, that the victim was under the age of thirteen (13), and
resulting in serious physical harm. Count 4: Rape, in
violation of Ohio Revised Code Section 2907.02(A)(1)(b), a
felony of the first degree. The Jury further found, beyond a
reasonable doubt, that the victim was under the age of
thirteen (13), and force or threat of force. Count 7:
Endangering Children, in violation of Ohio Revised Code
Section 2919.22(A), 2919.22(E)(2)(c), a felony of the third
Scioto App. No. 19C3866 9
degree. The Jury further found, beyond a reasonable doubt,
resulting in serious physical harm.
The trial court then sentenced Appellant to fifteen years to life on Count 1
rape. The court further found that Counts 3 and 4, also rape, merged with
Count 1. Appellant was sentenced to a thirty-six month prison term on
Count 7, Endangering Children. Appellant’s consecutive sentence was a
total aggregate prison term of 18 years to life.
{¶15} This timely appeal followed. Where pertinent, additional facts
are set forth below.
ASSIGNMENTS OF ERROR
“I. THE TRIAL JUDGE ABUSED HIS DISCRETION IN
FINDING A.C. COMPETENT TO TESTIFY AT TRIAL.
II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO SUBMIT PROPOSED QUESTIONS PRIOR TO A.C.’S
COMPETENCY HEARING. THIS FAILURE PREJUDICED
APPELLANT, AFFECTED THE OUTCOME OF THE
COMPETENCY HEARING, AND AFFECTED THE
OUTCOME AT TRIAL.
III. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO CROSS-EXAMINE EIGHT OF THE SIXTEEN
WITNESSES PRESENTED BY THE STATE, INCLUDING
A.C. THIS FAILURE UNFAIRLY PREJUDICED
APPELLANT, AND UNDERMINED THE RESULT AT
TRIAL.
IV. THE EVIDENCE WAS INSUFFICIENT AS A MATTER
OF LAW TO CONVICT APPELLANT OF RAPE AND
CHILD ENDANGERMENT; OR IN THE ALTERNATIVE
Scioto App. No. 19C3866 10
THE CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR ONE -
WITNESS COMPETENCY
A. STANDARD OF REVIEW
{¶16} “ ‘A determination of competency is within the sound
discretion of the trial court and will not be reversed on appeal absent a clear
abuse of discretion.’ ” State v. Hammond, 4th Dist. Ross No. 18CA3662,
2019-Ohio-4253, at ¶ 36, quoting, State v. Maxwell, 139 Ohio St. 3d 12,
2014-Ohio-1019, 9 N.E. 3d 390, at ¶ 100. An abuse of discretion is more
than an error of law or of judgment. Instead, it implies that the court acted
in an unreasonable, arbitrary or unconscionable manner. See, e.g.,
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983);
Wilson v. Wilson, 4th Dist. Lawrence No. 19CA1, 2009-Ohio-4978, at ¶ 17.
B. LEGAL ANALYSIS
{¶17} Appellant asserts that A.C., age four at the time of the
alleged sexual conduct, did not have an ability to accurately receive,
recollect, and communicate information. Furthermore, it is asserted that
even when A.C. testified at age five at the competency hearing, and at age
six by the time of trial, she was not able to appreciate the heavy
responsibility and weight of the oath. Appellant asserts the trial court failed
Scioto App. No. 19C3866 11
to make the minimum required determination and unreasonably and
arbitrarily found A.C. competent to testify. Appellant argues the record
reflects only 13 pages of testimony (which was “small talk” or brief
answers), and argues that the trial court did not ask sufficient questions
regarding the consequences for telling lies under oath. Appellant concludes
this decision amounted to an error of law and constitutes an arbitrary and
unreasonable abuse of discretion.
{¶18} The trial court found as follows:
The Court finds that the child victim is under ten years of age.
The child was interviewed, on the record, in chambers, without
the presence of the Defendant, Counsel for the Defendant, or
the State. This Court, prior to the interview, invited the
submission of proposed questions. Proposed questions were
not submitted by the Defendant or the State. The Court finds
upon reviewing the briefs of counsel and considering the child’s
interview by this Court, that the child victim is competent to
testify at trial. The Court further finds that the child victim has
the ability to receive accurate impressions of fact, has the
ability to accurately recollect the impressions, and has the
ability to relate the impressions truthfully.
Scioto App. No. 19C3866 12
{¶19} R.C. 2317.01 provides that, “All persons are competent
witnesses except those of unsound mind and children under ten years of age
who appear incapable of receiving just impressions of the facts and
transactions respecting which they are examined, or of relating them truly.”
Evidence Rule 601 also provides the general rule governing the competency
of witnesses. Hammond, supra, at ¶ 36. It states, in relevant part, “[e]very
person is competent to be a witness except: (A) ... children under ten years
of age, who appear incapable of receiving just impressions of the facts and
transactions respecting which they are examined, or of relating them truly.”
Evid.R. 601(A). “A trial court must conduct a voir dire examination of a
child under ten years of age to determine the child’s competence to testify.”
Maxwell, supra, at ¶ 100. The court must consider the following factors in
making this determination:
(1) the child’s ability to receive accurate impressions of fact or
to observe acts about which he or she will testify; (2) the
child’s ability to recollect those impressions or observations;
(3) the child’s ability to communicate what was observed; (4)
the child’s understanding of truth and falsity; and, (5) the
child’s appreciation of his or her responsibility to be truthful.
Scioto App. No. 19C3866 13
Id.; citing State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483
(1991).
{¶20} At the hearing to determine A.C.’s competence to testify,
the trial court inquired as follows:
The Court: Okay. Now, I don’t want you to tell me about
anything that happened, but what I want to know
is, do you know what it is to tell the truth? Do you
know what that means?
Minor Female: Yes.
The Court: Do you know what it means to tell a lie?
Minor Female: Yes.
***
The Court: Now, if I took this file here - - this is - - this is - -
it’s called a file, and told you that file is red would
I be telling you the truth?
Minor Female: No.
The Court: Would I be telling you a lie?
Minor Female: Yes.
The Court: I would?
Minor Female: Yes.
Scioto App. No. 19C3866 14
The Court: Okay. That’s not red?
Minor Female: Nope.
The Court: Okay. Are you sure?
Minor Female: Yes. It’s not.
The Court: All right. If I told you right now it - - it was - - it’s
dark outside is that the truth or a lie?
Minor Female: A lie.
* * *
The Court: Okay. If I told you my shoe was brown is that the
truth?
Minor Female: Yes.
The Court: Okay. If I said your shoes are brown is that the
truth?
Minor Female: No.
* * *
The Court: Okay. All right. Okay. Now, do you know that
you’re not supposed to tell lies?
Minor Female: Yes, I know.
* * *
Scioto App. No. 19C3866 15
The Court: Okay. Would you ever lie to anybody about
anything that ever happened to you?
Minor Female: No.
The Court: Okay. All right. Have you ever lied about
anything that had ever happened to you?
Minor Female: I never lie.
* * *
The Court: Okay. So, at some time probably, you’re going to
be asked some questions about what happened to
you. Do you understand that? Do you know - -
what are you supposed to do when you’re asked
those questions? Do you know what you’re
supposed to do?
Minor Female: Yes.
The Court: What?
Minor Female: Tell the truth.
The Court: Tell the truth. Can you do that?
Minor Female: Um hmmm.
The Court: I think you know the difference between the truth -
- a truth and a lie, don’t you?
Scioto App. No. 19C3866 16
Minor Female: Uh huh.
{¶21} Appellant argues that the trial court failed to focus on the
consequences for telling lies under oath. The transcript does reveal the trial
court’s failure to ask an explicit question relating to the consequences for
lying and the meaning of the oath. We also observe that after the trial court
found A.C. competent to testify, neither defense counsel interposed an
objection after the court issued its ruling, prior to A.C.’s testimony, or at any
point during the trial.
{¶22} “ ‘Any errors not brought to the attention of the trial court by
objection or otherwise are waived and may not be raised on appeal unless
they rise to the level of plain error.’ ” State v. Cook, 4th Dist. Gallia No.
18CA11, 2019-Ohio-4745, at ¶ 28, quoting, State v. Swint, 2018-Ohio-5384,
¶ 25. “To constitute plain error, a reviewing court must find (1) an error in
the proceedings, (2) the error must be a plain, obvious or clear defect in the
trial proceedings, and (3) the error must have affected ‘substantial rights’
(i.e., the trial court’s error must have affected the trial’s outcome).” Cook,
supra, at ¶ 29, quoting State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill, 92 Ohio St.3d 191,
749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002). “Furthermore, notice of plain error must be taken with
Scioto App. No. 19C3866 17
the utmost caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice.” State v. Landrum, 53 Ohio St.3d 107, 111,
559 N.E.2d 710 (1990), and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978), paragraph three of the syllabus. “A reviewing court should
notice plain error only if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. Based upon our review of this
case, we find the trial court did not commit plain error in finding A.C.
competent to testify.
{¶23} The competency hearing transcript reveals that A.C. answered
questions which demonstrated an ability to receive accurate impressions of
fact, an ability to recollect impressions and observations, and the ability to
communicate her knowledge. A.C. was able to tell the trial court her full
name, the month and day of her birth, street of residence, parents’ names,
grade in school, name of school, teacher’s name, and siblings’ names. She
testified she liked to eat, watch television, and play outside. The record does
not reveal an inordinate use of leading questions or that A.C. was unable to
recollect or communicate her answers. While the judge gave A.C. a couple
pieces of candy, nothing indicates this was used to “reward” her for
“correct” answers to questions.
Scioto App. No. 19C3866 18
{¶24} While we agree that the trial court could have asked explicit
questions regarding her understanding of negative consequences for lying or
her understanding of the oath, we find that A.C.’s answers implicitly
demonstrate that she understood there may be negative consequences for
lying. For instance, after being asked “Would you ever lie?” and a followup, “Have you ever lied?” A.C. answered: “I never lie.” Additionally,
“ ‘[t]he child's appearance, fear or composure, general demeanor and manner
of answering, and any indication of coaching or instruction as to answers to
be given are as significant as the words used in answering during the
examination to determine competency.’ ” State v. Azbell, 5th Dist. Fairfield
No. 04CA11, 2005-Ohio-1704, at ¶ 21, quoting, State v. Wilson, 156 Ohio
St. 525, 103 N.E.2d 552 (1952). See also State v. Mayer, 4th Dist. Highland
No. 99CA8, 200-Ohio-2014, at *2. As to the above-referenced indicators,
the trial court was in the best position to observe A.C.’s demeanor and
manner of answering. See also State v. Cobb, 81 Ohio App.3d 179, 182, 610
N.E.2d 1009 (9th Dist.1991), (Trial court is in a far better position to
determine the competency of a child witness, particularly in light of the
child’s testimony at trial.)
{¶25} This conclusion is further bolstered by A.C.’s testimony at trial.
The trial transcript reflects that after being given the oath, the prosecutor
Scioto App. No. 19C3866 19
asked A.C.: “Do you know what that means? A.C. replied “No.”
Thereafter, the following exchange occurred:
Q: Okay. The Judge is asking you to tell the truth in here.
Okay.
A: Um hmm.
Q: Do you know what that - - what it means to tell the truth?
A: Yes.
Q: What does that mean?
A: You tell the truth and don’t lie.
Q: Okay. What happens if you tell a lie?
A: You get grounded.
Q: You get grounded. Okay. So, if I told you my hair is hot
pink right now would that be the truth or a lie?
A: A lie.
Q: That would be a - - it’s not pink?
A: No.
{¶26} A.C.’s answers above demonstrate an awareness of the negative
consequences for lying. In State v. Lee, 90 Ohio App. 3d 282, 459 N.E.2d
910 (9th Dist.1983), the trial court found that the child’s inability to define
“oath” was not dispositive of the question of her competency in light of her
Scioto App. No. 19C3866 20
testimony at trial. See also, State v. Larie, 5th Dist. Licking No. 96CA51,
1996 WL 753171 (Dec. 16, 1996), at *2, wherein the appellate court found
that certain dialogue on truthfulness and what it means to be truthful fulfilled
the requirement regarding the meaning of the oath.
{¶27} Appellant has directed us to A.C.’s cross-examination,
where counsel for Brian Powers inquired as follows:
Q: Do you remember a year and a half ago back in July when all
this was supposed to happen?
A: No.
Q: NO.
A: Huh uh.
Q: You don’t remember that?
A: No.
Q: Well, the reason I asked, is Julie asked you if you
remembered the Judge and you said you didn’t. This
summer you would have gone into his office and talked
with him a little bit, told him about Teen Titans. Does
that sound familiar?
A: No.
Later during cross-examination:
Scioto App. No. 19C3866 21
Q: Okay. They took you to a doctor and you talked to a
nurse lady - -
A: Yes.
Q: - - in a room with a little table?
A: Yeah.
Q: Do you remember talking with her?
A: No.
Q: Okay. So, if I play a little video of that would that help
you remember?
A: Yeah.
{¶28} We do not find A.C.’s inability to recall certain past details as
fatal. In State. V. Lee, 90 Ohio App.3d 282, 459 N.E.2d 910 (9th Dist.1983),
the appellate court found that the child victim’s inability to accurately assign
a date to past events did not hinder her ability to competently render
testimony, as the date of the offense, material to conviction, was testified to
by other witnesses. Id. at 282. In this case, co-defense counsel played the
video of A.C. speaking with SANE nurse Ashley Muse-Gigley, and actually
rehabilitated A.C.’s testimony as follows:
Q: Okay. [A.C.], do you remember that?
A: Yeah. Now I do.
Scioto App. No. 19C3866 22
{¶29} “When determining a child's reasoning ability, as when
determining a child's competency, ‘[a] trial court is not required * * * to
make express findings on the considerations outlined in Frazier. * * *
Instead, the trial court is merely required to consider the Frazier factors
while making the * * * determination.’ ” State v. Rizer, 4th Dist. Meigs No.
10CA3, 2011-Ohio-5702, at ¶ 21, quoting, Schulte v. Schulte, 71 Ohio St.3d
41, 43, 641 N.E.2d 719 (1994). See also Wilson v. Wilson, 4th Dist.
Lawrence No. 09CA1, 2009-Ohio-4978, at ¶ 16. In the absence of evidence
to the contrary, we presume that the trial court properly applied the Frazier
factors and that it did not abuse its discretion or commit plain error by
finding A.C. to be competent as a witness despite her young age.
{¶30} Based on the foregoing, we find no merit to Appellant’s first
assignment of error. Though not explicitly stated in terms of consequences,
A.C. was able to recall, recognize, and communicate a negative consequence
for untruthfulness, i.e. “you get grounded.” Our conclusion is further
bolstered by A.C.’s direct examination testimony at trial. As such, we
overrule the first assignment of error.
ASSIGNMENTS OF ERROR TWO AND THREEINEFFECTIVE ASSISTANCE OF COUNSEL
A.STANDARD OF REVIEW
Scioto App. No. 19C3866 23
{¶31} To prevail on a claim of ineffective assistance of counsel, a
criminal defendant must establish (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable
representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel's errors, the result of the proceeding would have been different.
State v. Wilson, 4th Dist. Lawrence No. 18CA15, 2019-Ohio-2754, at ¶ 25;
State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121,
¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). In Ohio a properly licensed attorney is presumed
competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 62. Thus, in reviewing the claim of ineffective assistance of
counsel, we must indulge in “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,’ ” Wilson,
supra, quoting Strickland at 697, 104 S.Ct. 2052. Failure to satisfy either
part of the test is fatal to the claim. Id.; State v. Bradley, 42 Ohio St.3d 136,
143, 538 N.E.2d 373 (1989); State v. Ruble, 2017-Ohio-7259, 96 N.E.3d
792, ¶ 47 (4th Dist.).
B.LEGAL ANALYSIS
Scioto App. No. 19C3866 24
1. Was defense counsel ineffective for failing to submit proposed
questions prior to A.C.’s competency hearing?
{¶32} R.C. 2317.01, set forth above, also provides that the
court may allow the prosecutor, guardian ad litem, or attorney for any party
to submit questions for use by the court in determining whether a minor
child is a competent witness. Appellant asserts that trial counsel failed to
submit any proposed questions prior to the competency hearing and thereby
prejudiced Appellant and affected the outcome of the competency hearing,
which in turn affected the outcome of the trial. Appellant asserts that had
trial counsel submitted proposed questions, the trial judge could have been
directed to the minimum determinations he needed to make in order to find
A.C. competent or to the shortcomings of her competency.
{¶33} Appellant argues that had questions been submitted, A.C.
would likely not have been found competent to testify. Appellant concludes
that by not eliminating A.C. as a witness, watching the six-year-old child
testify via closed-circuit television had an effect on the jurors and the
outcome of the trial. For the reasons which follow, we disagree.
{¶34} Neither defense counsel for Appellant, counsel for codefendant Powers, nor the State of Ohio submitted proposed questions for
the trial court. In State v. Cobb, supra, the appellate court noted the
provision for submission of questions pursuant to R.C. 2317.01 and also
Scioto App. No. 19C3866 25
observed that the statute does not require the trial court to use these
questions. Our research has yielded no authority to the contrary.
{¶35} Given that the trial court had discretion whether or not to utilize
proposed questions, we find it to be pure speculation to conclude that
defense counsel’s failure to submit proposed questions constituted deficient
performance or otherwise affected the outcome of the competency hearing
and the outcome of the trial. As explained above, the record reflects that at
the competency hearing, A.C. testified “I never lie.” At trial, the prosecutor
asked her if she understood the oath and began a dialogue regarding
truthfulness and untruthfulness. A.C. was able to articulate the negative
consequences for untruthfulness, which in her experience was, “You get
grounded.”
{¶36} Based on the foregoing, we find Appellant failed to satisfy
either prong of the Strickland test necessary to support a claim of ineffective
assistance of counsel for counsel’s failure to submit proposed questions. As
such we find no merit to Appellant’s argument herein.
2. Was defense counsel ineffective for failing to cross-examine
eight of the State’s sixteen witnesses presented at trial?
{¶37} Appellant also asserts counsel was ineffective for failing
to cross-examine eight of the witnesses at trial, including A.C. Appellant
argues counsel failed to call into question these witnesses’ testimony,
Scioto App. No. 19C3866 26
competency, or motives. Appellant concludes that trial counsel did not take
an active role and that this was not a tactical decision but instead, the
omission fell below the standard of reasonable representation. For the
reasons which follow, we again disagree.
{¶38} “Generally, ‘[t]he extent and scope of cross-examination
clearly fall within the ambit of trial strategy, and debatable trial tactics do
not establish ineffective assistance of counsel.’ ” State v. Guysinger, 4th
Dist. Ross No. 15CA3514, 2017-Ohio-1167, at ¶ 27, quoting, State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 146.
Moreover, “ ‘[a]n appellate court reviewing an ineffective assistance of
counsel claim must not scrutinize trial counsel's strategic decision to engage,
or not engage, in a particular line of questioning on cross-examination.’ ”
State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-Ohio-2334, ¶ 22,
quoting In re Brooks, 10th Dist. Franklin No. 04AP164, 2004-Ohio-3887,
¶ 40; see also State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-Ohio-5060,
¶ 23. In this case, the State of Ohio called sixteen witnesses. The witnesses
were presented at trial as follows:
1. Brian Carver, A.C.’s father;
2. Andrea Crace, a staff nurse at Adena Health System and
part-time coordinator of SANE nurses;
Scioto App. No. 19C3866 27
3. Ashley King, a registered nurse at Adena Health System and
a trained SANE nurse;
4. A.C.;
5. Dr. Zoran Naumvoski, a medical doctor and administrative
director of the Child Protection Center;
6. Michelle Carver, A.C.’s step-mother;
7. Ashley Muse-Gigley, the SANE nurse, interviewer and
victim’s advocate at the Child Protection Center who
interviewed A.C.;
8. Detective Michael Hamilton, PPD;
9. Detective Steve Brewer, PPD;
10. Valerie Pinson, Records Clerk, PPD;
11. Officer Lee Bower, PPD;
12. Timothy Augsback, a forensic scientist employed by BCI;
13. Dylan Waggy, a computer forensic specialist employed by
BCI;
14. Rachel Gray, a case worker and investigator with Scioto
County Children’s Services;
15. Detective Chuck Crapyou, PPD, who investigated the case;
and,
Scioto App. No. 19C3866 28
16. Cynthia Justice, a Licensed Independent Social Worker who
provided therapy to A.C. at Mahajan Therapeutics and at
A.C.’s home.
{¶39} The transcript reveals that Appellant’s trial counsel
cross-examined Brian Carver, Ashley King, Dr. Naumvosi, Michelle Carver,
Ashley Muse-Gigley, Rachel Gray, Detective Crapyou, and Cynthia Justice.
As indicated above, the prosecution pursued a theory of complicity based on
Appellant’s failure to abide by the court order which did not permit Powers
to be in her home when A.C. was present, thus giving Powers access to A.C.
In defense counsel’s cross-examination of Brian Carver, Appellant’s counsel
was able to elicit testimony wherein Carver admitted that there were times
when he left A.C. at Trout’s home for visitation, knowing that Brian Powers
was present in the home. This testimony may have served to lessen the
impact of Appellant’s failure to abide by the court order by demonstrating
A.C.’s father was also lax as to the terms of the court order.
{¶40} On cross-examination, Appellant’s counsel also elicited
testimony wherein Carver admitted that he could not remember certain
information, such as which law enforcement agency showed up at the E.R.
to take a report; the name of A.C.’s therapist; the name of the person who
examined A.C. at Adena E.R.; and where the Child Protection Center was
Scioto App. No. 19C3866 29
located. All of this testimony could have cast doubt as to Carver’s parenting
skills and as to the reliability of his testimony as to other material facts.
{¶41} Appellant’s counsel was also able to get Carver to admit that he
and his wife Michelle, not A.C., did much of the explaining to the E.R.
doctor, casting doubt on the allegations of sexual abuse. Appellant’s counsel
was also able to emphasize uncomplimentary facts through Carver’s crossexamination. Carver testified that A.C.’s mother Hannah, whom Carver
chose to be in a relationship with at one time, was on drugs; that she was
many years younger than Carver; and that Carver and his current wife,
Michelle, together received SSI, disability, and government financial
assistance for A.C. and an older child, Breanne. This cross-examination
appears to have been vigorous at times.
{¶42} Appellant’s counsel also cross-examined Dr. Naumvoski,
focusing on the Child Protection Center records. Counsel was able to elicit
testimony again demonstrating that the history and circumstances of
suspected abuse was obtained from A.C.’s father. Counsel emphasized Dr.
Naumvoski’s note in the records that two weeks after intake at the hospital,
A.C.’s physical examination was normal, possibly attempting to create
reasonable doubt as to the required element of “serious physical harm.”
Scioto App. No. 19C3866 30
{¶43} On cross-examination of Michelle Carver, A.C.’s step-mother,
Appellant’s counsel was able to emphasize that A.C.’s mother had obtained
visitation rights and that the Carvers had a contempt motion filed against
them by the mother. Counsel also elicited testimony about the on and off
again nature of the Carvers’ relationship, and the fact they married just one
week after the allegations of sexual abuse surfaced. Counsel’s relentless
questioning also caused Michelle Carver confusion as to when A.C. first
reported “Papaw Brian” as the perpetrator—either at Adena or the SOMC
E.R. The testimony adduced had the potential to damage Michelle Carver’s
credibility.
{¶44} On cross-examination of Ashley Muse-Gigley, the interviewer
and victim’s advocate who interviewed A.C., Appellant’s counsel was able
to elicit many “I don’t know” or “I don’t recall” answers. On crossexamination of Rachel Gray, the Children’s Services caseworker, counsel
was able to emphasize Gray’s previous testimony on direct that A.C. had
told Gray she was sorry for “fibbing.” This testimony could have damaged
the credibility of A.C.
{¶45} On cross-examination of Detective Crapyou, counsel elicited
testimony that he received “unsolicited” phone calls from Michelle Carver
wherein she misrepresented her name and marital status. The detective also
Scioto App. No. 19C3866 31
testified it was through a July 24, 2017 call from Michelle Carver that Brian
Powers’ name first emerged as perpetrator. Counsel also elicited testimony
that Powers was first arrested on an unrelated incident of domestic violence
with Appellant as the victim on July 29, 2017.
{¶46} Appellant’s counsel further elicited testimony from Detective
Crapyou that Appellant had been cooperative with him and she had provided
the Playstation piece of evidence.3
Detective Crapyou agreed with defense
counsel on cross-examination that if it wasn’t for Appellant, “it [the
Playstation] wouldn’t be here today.” All this testimony had the potential of
placing Appellant in a sympathetic light as another victim of Brian Powers.
It also demonstrated at least some degree of cooperation with law
enforcement.
{¶47} Finally, Appellant’s counsel also cross-examined Cynthia
Justice, A.C.’s therapist. During cross-examination, counsel was able to
emphasize the frequency of Justice’s sessions with A.C.; the fact that one of
the Carvers was always present during therapy; and the fact that, not until
the 30th session did A.C. “blurt out” allegations of sexual abuse. Justice
could not testify with accuracy how many sessions she had, and she also
admitted that Michelle Carver was the main source of her information.
3
Again, Powers was charged with illegal use of a minor in nudity-oriented material or performance. The
Playstation which Appellant provided to Detective Crapyou was used solely in the case presented against
Powers for the illegal use of a minor charge.
Scioto App. No. 19C3866 32
Counsel also emphasized a note in the Mahajan Therapeutics records where
A.C. told Justice that Appellant “protects her.” Our review reveals these
individual cross-examinations, including Justice’s, appear to have been
thoughtfully-planned, appropriate, and vigorous where necessary.
{¶48} As to the other witnesses which Appellant’s counsel chose not
to cross-examine, we find this to be a matter of trial strategy and not
indicative of deficient performance. This is especially compelling in light of
the above discussion of the cross-examination of the witnesses defense
counsel did choose to cross-examine, as set forth above. We begin with
A.C., age 6 at the time of trial. In Guysinger, supra, we stated at ¶ 29:
In light of the very sensitive nature of this case, which involves
a child victim of sexual assault, counsel’s decision not to
extensively cross-examine A.G. does not, by itself, constitute
ineffective assistance of trial counsel. See, e.g., State v.
Hughes, 10th Dist. Franklin No. 14AP-360, 2015-Ohio-151,
¶ 60 (trial counsel's failure to cross-examine any of the state's
witnesses, including the child victim, in a case involving rape
and gross sexual imposition, did not constitute ineffective
assistance, reasoning that “[t]rial counsel's decision not to
cross-examine N.P. and F.H., both minors, is a reasonable and
Scioto App. No. 19C3866 33
understandable trial tactic given the sensitive nature of this
case”); State v. Diaz, 9th Dist. Lorain No. 04CA008573, 2005-
Ohio-3108, ¶ 20-23 (trial counsel's decision not to crossexamine child victims in case involving rape and gross sexual
imposition was within the realm of sound trial strategy and did
not constitute ineffective assistance of counsel).
{¶49} In Guysinger, supra, we also discussed various reasons
supporting the tactical decision to conduct a very brief cross-examination of
the child-victim.
Trial counsel could have been wary about a contentious crossexamination of A.G., who had testified emotionally on direct
examination. A more rigorous cross-examination could evoke
more emotion and greater sympathy by the jury. * * *
Moreover, it is not at all clear that additional questioning of
A.G. would have necessarily resulted in favorable testimony
concerning the details of the offenses and her reason for not
reporting the crimes earlier than she did. A.G. testified on
direct examination that she did not report the crimes because
she was scared. Additional cross-examination on these matters
may have simply bolstered the state's case. See State v.
Scioto App. No. 19C3866 34
Freeman, 8th Dist. Cuyahoga No. 92809, 2010-Ohio-3714, ¶ 51
(decision not to cross-examine child victims of rape and gross
sexual imposition about why they failed to come forward with
their allegations sooner did not constitute ineffective assistance
when they explained this on direct examination because “[i]t
would have been foolish for defense counsel to re-elicit this
damning testimony and explanations from the children on
cross-examination”).
{¶50} In this case, A.C. was cross-examined by counsel for
Appellant’s co-defendant, Brian Powers. Powers’ counsel elicited testimony
from A.C. that she had been friends for a while with the female prosecutor;
that she did not remember a year and a half ago back in July when all this
was supposed to happen; that she didn’t remember going into Judge’s
chambers to talk to him. Defense counsel was able to elicit detailed
testimony about “Peter,” the first named perpetrator. A.C. testified that
“Pappy Brian” and Appellant “fought” around her at times and she wished
they wouldn’t fight. She also testified about staying at her father’s house;
how “crowded” it was; and how she “had to sleep naked” there.
{¶51} All of the above testimony challenged A.C.’s credibility. It
also effectively planted the idea within the jurors’ minds that A.C. might
Scioto App. No. 19C3866 35
have been “coached” to testify or that she might be testifying in order to
“please” her new prosecutor friend. Additionally, the testimony regarding
all the people at her father’s house allowed both defense counsel to make the
argument that someone other than Powers had the opportunity to have
abused A.C. Trial counsel for Powers engaged in an effective crossexamination. As in Guysinger, had Appellant’s counsel undertaken
additional cross-examination, it could have “undone” any successes
achieved by Powers’ counsel, and may have bolstered the State’s case or
may have evoked more sympathy for the child victim.
{¶52} We view Appellant’s counsel’s decision not to cross-examine
A.C. as an obvious strategic decision. As to the decisions not to crossexamine Andrea Crace, Detective Hamilton, Detective Brewer, Valerie
Pinson, Officer Bower, Timothy Augsback, and Dylan Waggy—it also
appears these decisions not to cross-examine may be considered sound trial
strategy.
{¶53} Andrea Crace testified as to the chain of custody of the rape kit
that was used to collect any evidence from A.C. at the SOMC ER. On crossexamination, counsel for Powers elicited testimony that although the rape kit
was placed into a safe, it was not refrigerated. Detective Hamilton testified
as to the chain of custody of the rape kit, the swabs attached thereto, and the
Scioto App. No. 19C3866 36
Portsmouth Police Department’s property routing form. Powers counsel
also elicited testimony that the evidence locker at the police department was
not refrigerated.
{¶54} Detective Brewer also testified regarding chain of custody for
the rape kit as well as the Playstation and the property inventory sheet for
the Playstation. Valerie Pinson, the records clerk, and Officer Bower also
testified as to chain of custody. We do not find Appellant’s counsel’s
performance to be deficient for failing to cross-examine the above witnesses.
Powers’ trial counsel had conducted effective cross-examinations, raising
evidentiary concerns with the DNA storage. Had Appellant’s counsel
chosen to also pursue these topics, he may have annoyed the jurors and the
trial court with needless repetition.
{¶55} Timothy Augsback, the forensic scientist, testified as to the
chain of custody process at BCI. He identified the rape kit, the oral swabs
from Brian Powers, and the DNA analysis report he prepared. Augsback
tested the swabs and determined male DNA was present. On crossexamination, counsel for co-defendant Powers elicited testimony that delay
in testing DNA “could” be a problem. He also testified that, though
unlikely, it is possible that DNA could be transmitted by touch, such as
Scioto App. No. 19C3866 37
falling off a person as they folded another’s clothes. Appellant’s DNA was
never an issue in this case.
{¶56} Dylan Waggy, a computer forensic specialist, also testified as
to custody of evidence logged in at BCI. He analyzed the Playstation’s hard
drive, took photographs, and reviewed the web search history. On crossexamination, counsel for Powers emphasized that the report was not about
the original hard drive but about a cloned drive, and that the Playstation was
an older model. Waggy admitted it was possible that the websites accessed
were “popup” websites. When Appellant’s counsel was offered the
opportunity to cross-examine Waggy, counsel stated: “I’m not involved in
this.” Given that Appellant was not charged with illegal use of a minor in
nudity-oriented material or performance, we construe Appellant’s counsel’s
decision not to cross-examine Dylan Waggy as entirely reasonable.
{¶57} Based on the foregoing comprehensive review of witness
testimony, we conclude that trial counsel’s failure to cross-examine 8 of 16
witnesses appears to have been trial strategy. We find Appellant’s claim of
ineffective assistance on this basis is pure speculation. Speculation is
insufficient to establish either the deficient performance or prejudice
requirements of an ineffective assistance claim. See Guysinger, supra, at
¶ 31, citing State v. Short, 129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.
Scioto App. No. 19C3866 38
2d 1121, at ¶ 119. For the foregoing reasons, we find no merit to the second
and third assignments of error. Accordingly, those assignments of error are
hereby overruled.
ASSIGNMENT OF ERROR FOUR -
WEIGHT OF THE EVIDENCE
A. STANDARD OF REVIEW
{¶58} A claim of insufficient evidence invokes a due process concern
and raises the question whether the evidence is legally sufficient to support
the verdict as a matter of law. State v. Wickersham, 4th Dist. Meigs No.
13CA10, 2015-Ohio-2756, at ¶ 22, citing, 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, 61 L.Ed.2d 560 (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
Scioto App. No. 19C3866 39
evidence against a defendant would support a conviction.” Thompkins, 78
Ohio St.3d at 390 (Cook, J., concurring).
{¶59} Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe the evidence in a light most favorable to the
prosecution. 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).
{¶60} “ ‘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.’ ” 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
Scioto App. No. 19C3866 40
evidence sustains the issue which is to be established before them. Weight
is not a question of mathematics, but depends on its effect in inducing
belief.” ’ ” 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).
{¶61} 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. 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:
Scioto App. No. 19C3866 41
“ ‘[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.”).
{¶62} Once the reviewing court finishes its examination, the court
may reverse the judgment of conviction only if it appears that the fact-finder,
Scioto App. No. 19C3866 42
when resolving the conflicts in evidence, “ ‘ “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered .” ’ ” Wickersham, supra, ¶ 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, at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995
(2000).
{¶63} 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.
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). In the case sub judice, therefore, we first consider
Appellant's argument that her convictions are against the manifest weight of
the evidence.
Scioto App. No. 19C3866 43
B. LEGAL ANALYSIS
{¶64} Appellant was convicted on three counts of rape and one count of
endangering children upon a theory of complicity. Appellant asserts that the
evidence adduced at trial was legally insufficient and also the verdicts were
against the manifest weight of the evidence. The complicity statute, R.C.
2923.03(A)(2), states in pertinent part: “No person, acting with the kind of
culpability required for the commission of an offense, shall * * * [a]id or
abet another in committing the offense[.]” Under R.C. 2923.03(F), “ ‘[a]
charge of complicity may be stated in terms of [that] section, or in terms of
the principal offense.’ ” State v. Wingfield, 8th Dist. Cuyahoga No. 107196,
2019-Ohio-1644, at ¶ 65, quoting State v. McKelton, 148 Ohio St.3d 261,
2016-Ohio-5735, 70 N.E.3d 508, ¶ 244. In Ohio, when an individual acts to
aid or abet a principal in the commission of an offense, the individual and
principal are equally guilty and the individual is prosecuted and punished as
if he were a principal offender. Wingfield, supra. See R.C. 2923.03(F).
Thus, to sustain Appellant's complicity to rape and endangering children, the
evidence must show that Appellant knowingly aided or abetted Brian
Powers in committing rape and endangering children.
{¶65} Appellant contends that A.C.’s testimony is “unreliable at
best.” Appellant also points to the fact that she actually provided
Scioto App. No. 19C3866 44
incriminating evidence against Powers to the police. While Appellant
concedes she failed to abide perfectly by the juvenile court’s order, she
argues that the evidence does not support the conclusion that she aided
Powers. For the reasons which follow, we disagree with Appellant.
{¶66} “ ‘To support a conviction for complicity by aiding and
abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the
defendant supported, assisted, encouraged, cooperated with, advised, or
incited the principal in the commission of the crime, and that the defendant
shared the criminal intent of the principal. Such intent may be inferred from
the circumstances surrounding the crime.’ ” State v. Pickett, 4th Dist.
Athens No. 15CA13, 2016-Ohio-4593, at ¶ 32, quoting, State v. Johnson, 93
Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus; accord In re T.K., 109
Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶ 13. “ ‘Participation in
criminal intent may be inferred from presence, companionship and conduct
before and after the offense is committed.’ ” Johnson, 93 Ohio St.3d at 245,
754 N.E.2d 796, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d
884 (4th Dist.1971). However, “ ‘the mere presence of an accused at the
scene of a crime is not sufficient to prove, in and of itself, that the accused
was an aider and abettor.’ ” Id. at 243, quoting State v. Widner, 69 Ohio
St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to protect innocent
Scioto App. No. 19C3866 45
bystanders who have no connection to the crime other than simply being
present at the time of its commission.” Id. See also State v. Louis, 2016-
Ohio-7596, 73 N.E.3d 917 (4th Dist.), at ¶ 54.
{¶67} Count 1, rape, alleged:
On or about July 20, 2017,at Scioto County, Ohio, * * * Sheri
K. Trout (B), unlawfully, did engage in sexual conduct with
A.C. 10/29/2012, who was not the spouse of the offender,
whose age at the time of the said sexual conduct was less than
thirteen years of age, to wit: dob: 10/29/12, whether or not the
offender knew the age of A.C. 10/29/2012. Furthermore, the
victim was less than ten years of age. In violation of Ohio
Revised Code 2907.02(A)(1)(b), 2907.02(B), and against the
peace and dignity of the State of Ohio.
{¶68} Count 3, rape, contained the exact allegations as Count 1,
adding that “the offender did cause serious physical harm to the victim.”
Count 4, rape, contained the exact allegations as Counts 1 and 3, adding that
“[T]he offender purposely compelled the victim to submit by force or threat
of force.”
{¶69} Count 7, endangering children, alleged:
Scioto App. No. 19C3866 46
On or about July 20, 2017, at Scioto County, Ohio * * *, Sheri
K. Trout (B), unlawfully, was a parent, guardian, custodian,
person having custody or control, or person in loco parentis of a
child under eighteen years of age, who did create a substantial
risk to the health or safety of A.C. 10/29/2012, by violating a
duty of care, protection, or support. * * * [T]he violation
resulted in serious physical harm to A.C. 10/29/2012. In
violation of Ohio Revised Code 2919.22(A), 2919.22(E)(2)(c),
and against the peace and dignity of the State of Ohio.
{¶70} As indicated, the State of Ohio pursued a theory of complicity
against Appellant. The trial court instructed the jury as to the legal
definition of complicity as follows:
The Defendant, Sheri Trout, is charged with complicity in the
commission of the offense of Rape and Kidnapping * * *.
Before you can find the Defendant, Sheri Trout guilty, you
must find beyond a reasonable doubt, that on or about the 20th
day of July, 2017, and in Scioto County, the Defendant aided or
abetted another in committing the offense of Rape and
Kidnapping. A person acts knowing, regardless of purpose,
when the person is aware that the person’s conduct will
Scioto App. No. 19C3866 47
probably cause a certain result or be of a certain nature. A
person has knowledge of circumstances when the person is
aware that such circumstances probably exist. Because you
cannot look into the mind of another, knowledge is determined
from all the facts and circumstances in evidence. You will
determine from these facts and circumstances whether there
existed at the time in the - - in the mind of the Defendant, Sheri
Trout, an awareness of the probability that Defendant Brian
Powers committed the crimes of Rape and Kidnapping. Before
you can find the Defendant guilty of complicity by aiding or
abetting * * *, you must find beyond a reasonable doubt that the
Defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal offender in the commission of
the offense and that the Defendant shared the criminal intent of
the principal offender. Such intent may be inferred from the
circumstances surrounding the offense including but not limited
to presence, companionship, and conduct before and after the
offense was committed. The mere presence of the Defendant at
the scene of the offense is not sufficient to prove, in and of
itself, that the Defendant was an aider and abettor. The
Scioto App. No. 19C3866 48
Defendant cannot be found guilty of complicity unless the
offense was actually committed.
{¶71} State v. Louis, supra, involved a particularly egregious example
of complicity to criminal acts, also involving a grandmother who assisted a
boyfriend in sexual abuse of her grandchildren and was convicted. In Louis,
the state presented evidence that Louis knew Sanchez was repeatedly raping
her granddaughters, Jm.L. and Jn.L. because both girls testified that they
repeatedly told Louis about Sanchez’s crimes. Jm.L. testified that she told
Louis in November 2013 and “we said it a lot and my grandma never did
nothing.” Id. at ¶ 55. Louis provided Sanchez with a place to carry out the
rapes, tied and chained Sanchez's victims, and provided Sanchez with
unlimited continuous access to the victims. Id. She was present in the home
while the rapes were occurring, only yards away in a room with no doors.
Id.
{¶72} In Louis, we found that in weighing the evidence and all
reasonable inferences and considering the credibility of witnesses, the jury
did not clearly lose its way when it found Louis had supported and assisted
Sanchez in the rapes. Nor did it lose its way when it found Louis had shared
Sanchez's criminal intent by inference from her presence, companionship
Scioto App. No. 19C3866 49
and conduct before, during and after the rapes. Louis was “far from being
just an innocent bystander in the wrong place at the wrong time.” Id. at ¶ 56.
{¶73} In Appellant’s case, the evidence used to convict her of
complicity to rape and child endangering was not as direct. However, it is
well established that the elements of an offense may be proven by direct
evidence, circumstantial evidence, or both. State v. Wingfield, 8th Dist.
Cuyahoga No. 107196, 2019-Ohio-1644, at ¶ 51. See State v. Durr, 58 Ohio
St.3d 86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness
testifies about a matter within the witness's personal knowledge such that the
trier of fact is not required to draw an inference from the evidence to the
proposition that it is offered to establish.” State v. Cassano, 8th Dist.
Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Circumstantial evidence, on
the other hand, is evidence that requires “the drawing of inferences that are
reasonably permitted by the evidence.” Id. See also State v. Hartman, 8th
Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37 (“[c]ircumstantial
evidence is the proof of facts by direct evidence from which the trier of fact
may infer or derive by reasoning other facts in accordance with the common
experience of mankind”).
{¶74} Circumstantial and direct evidence are of equal evidentiary
value. Wingfield, supra, at ¶ 52; State v. Santiago, 8th Dist. Cuyahoga No.
Scioto App. No. 19C3866 50
95333, 2011-Ohio-1691, ¶ 12. “Although there are obvious differences
between direct and circumstantial evidence, those differences are irrelevant
to the probative value of the evidence.” Cassano at ¶ 13, citing State v.
Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). In some cases,
circumstantial evidence may be “ ‘more certain, satisfying and persuasive
than direct evidence.’ ” State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d
293 (1990), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330,
81 S.Ct. 6, 5 L.Ed.2d 20 (1960). See also, State v. Dunn, 4th Dist. Jackson
No. 15CA1, 2017-Ohio-518, at ¶ 67; State v. Grube, 2013-Ohio-692, 987
N.E.2d 287 (4th Dist.), ¶ 30.
{¶75} In this case, much of the evidence used to convict both Powers
and Appellant was circumstantial, hinging on A.C.’s credibility. However,
“ ‘[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. Schroeder, 4th Dist. Adams No. 18CA1077, 2019-Ohio-4136, at ¶ 84;
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, 2015 WL
2452024, at ¶ 62; quoting State v. Patterson, 8th Dist. Cuyahoga No.
Scioto App. No. 19C3866 51
100086, 2014-Ohio-1621, 2014 WL 1513893, at ¶ 40; quoting State v.
Lewis, 70 Ohio App.3d 624, 638, 591 N.E.2d 854 (4th Dist. 1990).
{¶76} We have set forth the pertinent facts above. The jury
apparently found A.C. and the other State’s witnesses to be credible and
compelling. Powers was convicted as the principal offender. In closing, the
prosecutor argued Appellant’s complicity by the fact that Appellant failed to
comply with the juvenile court’s order, which gave Powers access to A.C.
The prosecutor also emphasized the smallness of the house in which
Appellant lived. Furthermore, the jury heard Ashley Muse-Gigley’s
testimony that “Sheri knew and they fought.”
{¶77} A.C. testified on direct that when she met with the prosecutor,
they talked “about what Brian Powers did” at Appellant’s house, in A.C.’s
own room behind a chair. A.C. testified she “screamed for Mammaw
Sheri,” and Appellant came in and said “don’t touch my granddaughter
again.” Cindy Justice’s testimony corroborated A.C.’s as to Appellant’s
knowledge. This evidence demonstrated that Appellant was aware of the
sexual abuse and did nothing to stop it, save a verbal warning. A.C. also
testified her mother, Hannah Giles, told her to say “Mammaw Sheri didn’t
come in” because “she wants this court over so I can go over to her house.”
Scioto App. No. 19C3866 52
{¶78} A jury is in the best position to view the witnesses and to
observe witness demeanor, gestures and voice inflections, and to use those
observations to weigh credibility. Dunn, supra, at ¶ 75. See Myers v.
Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d 742 (1993); Seasons Coal Co.
v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). While this
case is a far cry from the factual scenario which convicted Louis for
complicity, the jury apparently found the facts warranted Appellant’s
convictions for three counts of rape on a theory of complicity. Appellate
courts should not generally second-guess juries on matters of weight and
credibility. See State v. Vance, 4th Dist. Athens No. 03CA27, 2004-Ohio5370, at ¶ 10. We decline to do so. The jury was in the best position to
view A.C. and the other witnesses and to determine their credibility. Based
on the foregoing, we find the jury did not lose its way and Appellant’s
convictions for rape are not against the manifest weight of the evidence. In
addition, based on the facts set forth at length above, Appellant’s conviction
for endangering children is also not against the manifest weight of the
evidence.
{¶79} Having found Appellant’s convictions for rape and child
endangering are not against the manifest weight of the evidence, we
necessarily find her convictions are supported by sufficient evidence. As
Scioto App. No. 19C3866 53
such, we find no merit to the fourth assignment of error. As such, it is
hereby overruled.
Outcome: We have found no merit to any of Appellant’s four assignments
of error. Accordingly, all assignments of error are overruled. The judgment
of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: