State v. Bellamy

2024 Ohio 2076

• Court: Ohio Court of Appeals
• Decided: May 30, 2024
• Docket: 23 CAA 06 0037
• Status: Published

Opinion

[Cite as State v. Bellamy, 2024-Ohio-2076.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : ERIC BELLAMY, : Case No. 23 CAA 06 0037 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 19 CRI 010063

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 30, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL APRIL F. CAMPBELL Prosecuting Attorney Campbell Law, LLC Delaware County Prosecutor's Office 545 Metro Place South, Suite 100 Dublin, Ohio 43017 By: KATHERYN L. MUNGER Assistant Prosecuting Attorney 145 North Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 23 CAA 06 0037 2

Baldwin, J.

{¶1} The appellant, Eric Bellamy, appeals his conviction and sentence by the

Delaware County Court of Common Pleas. Appellee is the State of Ohio. The relevant

facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On January 31, 2019, the Delaware County Grand Jury indicted the

appellant with six counts of Rape in violation of R.C. §2907.02, three counts of Gross

Sexual Imposition in violation of R.C. §2907.05, and one count of Menacing by Stalking

in violation of R.C. §2903.211.

{¶3} On July 23, 2019, the matter proceeded to trial. At trial, Dr. Bassman

testified even though his report was not disclosed within the time limits established by

Crim.R. 16(K). This Court sustained the error, vacated the appellant’s conviction, and

remanded the case back to the trial court. State v. Bellamy, 5th Dist. Delaware No. 19

CAA 08 0048, 2021-Ohio-40, rev’d in part, 169 Ohio St.3d 366, 2022-Ohio-3698, 204

N.E.3d 542.

{¶4} On May 10, 2023, the Appellant filed Motions in Limine to exclude Dr.

Bassman’s testimony, the forensic interviewer’s testimony, and the video evidence of the

forensic interview of the alleged victim. The appellee opposed these motions.

{¶5} On May 16, 2023, the matter proceeded to trial. In a preliminary matter, the

trial court denied the appellant’s Motions in Limine, but will consider further objections to

specific testimony.

{¶6} At trial, L.K. testified that her oldest daughter, N.S., was born on May 27,

2002. In 2008, while living in Morrow County, L.K. met and started dating the appellant. Delaware County, Case No. 23 CAA 06 0037 3

Shortly after they started dating, the appellant moved in with L.K. and her children. At the

time, he was working for his father, but stopped working shortly after moving in with L.K.

L.K. and the appellant were married in October of 2008.

{¶7} L.K. was working two jobs and frequently away from the home for long

stretches of time. She was saving up money, and eventually bought a house in Delaware

County, Ohio, in April of 2009. While working her second job, she met her current

husband.

{¶8} While L.K. was at work, N.S. would sometimes go to the babysitter with her

siblings and sometimes stay home. The appellant would spend a significant amount of

time playing video games and not working. Her relationship ended with the appellant in

December of 2009, and she immediately started dating her current husband.

{¶9} In 2015, L.K. reinitiated contact with the appellant. During their

conversation, the appellant asked about L.K.’s daughter N.S.

{¶10} At Thanksgiving in 2018, L.K. asked N.S. to use her phone. When she used

Google, she noticed N.S. had done a web search on the appellant. When they returned

home that evening, N.S. told L.K. why she was looking up the appellant.

{¶11} The appellant’s counsel objected as L.K. began to testify about what N.S.

told her. The trial court instructed the jury not to determine if what N.S. said was true but

to consider the effect N.S.’s statement had on L.K. L.K. testified that N.S. said she

googled the appellant to find out if he was living with other little girls. L.K. testified that

N.S. said the appellant became mad at N.S. when she left teeth marks on his penis in

case L.K. saw them. L.K. then contacted the police and took N.S. to Nationwide Children’s

Hospital to interview with a specialist. Delaware County, Case No. 23 CAA 06 0037 4

{¶12} Next, N.S. testified that when she was living in Morrow County, the appellant

started to date her mother, L.K. He eventually moved into the house with her and her

mother. N.S. was about six years old at this time. She testified that the appellant or a

babysitter would watch her the summer after he moved in with her family. He would play

video games often at home. One day when L.K. was not at home, the appellant called

N.S. into his bedroom and exposed his penis to her. He instructed her to grab it, but she

could not remember if she did. However, while still living in Morrow County, the appellant

did make N.S. touch his penis by pulling her hand over.

{¶13} After the family had moved to Delaware County in 2009, the appellant’s

abuse continued. While on the couch in the living room, the appellant anally raped N.S.

In the master bedroom of the house, the appellant vaginally raped N.S. on two separate

occasions. On many separate occasions, N.S. put her hand on the appellant’s penis. He

would touch her vagina and he performed cunnilingus on N.S. The appellant also forced

N.S. to perform fellatio on him. One time, when L.K. was home, the appellant called N.S.

upstairs and showed her his penis. He commented that she had left teeth marks on it and

then he made her kiss his penis. The appellant also supplied N.S. with marijuana when

they were alone at the house. He would instruct N.S. not to tell anyone what they were

doing.

{¶14} Dr. Bassman testified that he is a psychologist. The trial court certified Dr.

Bassman as an expert in child abuse. He has worked with thousands who are victims of

sexual abuse. He discussed delayed disclosure and that nearly seventy-five percent of

the time, children who are victims of sexual abuse wait before disclosure. It can be weeks,

months, years, or even decades. The disclosure is usually to a friend or someone other Delaware County, Case No. 23 CAA 06 0037 5

than the victim’s parents. He discussed the causes of delayed disclosure, negative habits

people experience to cope with the abuse, and grooming behaviors.

{¶15} Next, Sergeant Kridler from the Delaware County Sheriff’s Office testified

that he was employed as a Detective assigned to this case. He advised L.K. not to

interview N.S. any further about the abuse herself, but to schedule a CAC interview.

{¶16} Before the next witness testified, the appellant’s trial counsel renewed his

objection to playing the recording of the CAC interview. The appellee edited the interview

to show only those parts that discussed medical diagnoses and treatment; however, it

was the appellant’s position that if they allowed the portion for medical diagnoses and

treatment, the entirety should be played. The trial court denied the appellant’s objection

but consented to the appellant’s request that the entire video, except six seconds

mentioning the appellant’s criminal record, be played.

{¶17} Kerri Wilkinson then testified that she is a forensic interviewer at Nationwide

Children’s Hospital. She testified that she intakes information for the purposes of medical

diagnosis and treatment. The appellee then played the recording of the interview for the

jury. Ms. Wilkinson testified that the recording was a fair and accurate representation of

that interview.

{¶18} Next, Dr. Michelle Greene testified that she is a doctor at Nationwide

Children’s Hospital who works in pediatric emergency medicine and as a child abuse

pediatrician. The trial court then certified Dr. Greene as an expert in the area of child

abuse pediatrics. She discussed the mechanics of the forensic interview, the types of

information collected, and for what purpose that information is collected. She also testified

that she did an examination of the victim and that the results of the exam were normal. Delaware County, Case No. 23 CAA 06 0037 6

However, that is common in cases of child sexual abuse, especially when the abuse is

over ten years old.

{¶19} The State then rested its case.

{¶20} The appellant made a Rule 29 motion to dismiss the charge of Rape by

digital penetration. The appellee argued that if the trial court was inclined to dismiss the

charge, it should be reduced to the lesser included offense of Gross Sexual Imposition.

The trial court found the evidence presented could not sustain the charge of Rape but

granted the State’s request to reduce the charge to Gross Sexual Imposition.

{¶21} The jury found the appellant guilty on five counts of Rape in violation of R.C.

§2907.02, four counts of Gross Sexual Imposition in violation of R.C. §2907.05, and one

count of Menacing by Stalking in violation of R.C. §2903.211 with further findings as to

the age of the victim and threat of force.

{¶22} On May 23, 2023, the trial court sentenced the appellant to twenty-eight

years to life in prison as a Tier III sex offender.

{¶23} The appellant timely filed a notice of appeal and raised to following six

Assignments of Error:

{¶24} “I. THE TRIAL COURT ERRED IN ADMITTED N.S.’S CAC INTERVIEW

OVER BELLAMY’S OBJECTION: HER STATEMENTS DID NOT FALL UNDER THE

MEDICAL DIAGNOSIS EXCEPTION, EVID.R. 803(4). AND BECAUSE THAT ERROR

WAS NOT HARMLESS, BELLAMY’S CONVICTIONS SHOULD BE REVERSED.”

{¶25} “II. THE TRIAL COURT ERRED IN ADMITTING HEARSAY DAMAGING

TO BELLAMY. IT ALSO ERRED IN ADMITTING DR. BASSMAN’S TESTIMONY WHEN Delaware County, Case No. 23 CAA 06 0037 7

IT WAS NOT COMPETENT, INFLAMMATORY, AND IN VIOLATION OF CRIM.R. 16(K),

EVID.R. 403, AND EVID.R. 702.”

{¶26} “III. THE EVIDENCE AGAINST BELLAMY WAS LEGALLY INSUFFICIENT

AS TO COUNT SEVEN: VENUE WAS NOT ESTABLISHED FOR GROSS SEXUAL

IMPOSITION. BELLAMY WAS INDICTED ONLY FOR EVENTS THAT HAPPENED IN

DELAWARE. SINCE THE TESTIMONY AND THE PROSECUTION’S ARGUMENT

REVEAL THAT COUNT SEVEN OCCURRED IN MORROW COUNTY, R.C. 2901.12(H)

DOES NOT APPLY.”

{¶27} “IV. BELLAMY’S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS

COUNSEL WAS PREJUDICIALLY INEFFECTIVE.”

{¶28} “V. THE MANIFEST WEIGHT OF THE EVIDENCE WEIGHS IN FAVOR OF

NOT CONVICTING BELLAMY.”

{¶29} “VI. BELLAMY WAS DENIED HIS RIGHT TO A FAIR TRIAL IN THIS CASE

BECAUSE OF CUMULATIVE ERROR.”

{¶30} For the purpose of judicial economy, we will address the appellant’s

assignments of error out of order.

I.

{¶31} The appellant argues the trial court erred in admitting the video of the

victim’s CAC interview. We disagree.

STANDARD OF REVIEW

{¶32} “Ordinarily, a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” Rigby v. Lake County, 58 Ohio St.3d 269, Delaware County, Case No. 23 CAA 06 0037 8

271, 569 N.E.2d 1056 (1991). The appellate court must limit its review of the trial court’s

admission or exclusion of evidence to whether the trial court abused its discretion. Id. The

abuse of discretion standard is more than an error of judgment; it implies the court ruled

arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

ANALYSIS

{¶33} Evid.R. 803, in pertinent part states:

(4) Statements for the Purposes of Medical Diagnosis or Treatment.

Statements made for the purposes of medical diagnosis or treatment and

describing medical history, or past or present symptoms, pain, or

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

source thereof insofar as reasonably pertinent to diagnosis or treatment.

{¶34} To determine “whether statements made to a forensic interviewer at a child

advocacy center are made for the purpose of medical diagnosis and treatment, as

opposed to forensic investigative purposes, the court must ‘identify the primary purpose

of the statements.’ ” State v. Remy, 2d Dist. Clark No. 2017-CA-6, 2018-Ohio-2856, ¶82,

quoting State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶28.

“Whether the purpose of a child’s statements is for medical diagnosis or treatment will

depend on the facts of the particular case.” State v. Jones, 2d Dist. Montgomery No.

26289, 2015-Ohio-4116, 43 N.E.3d 833, ¶73.

{¶35} In the case sub judice, the appellant argues that the examiner did not play

a role in the diagnosis or treatment but to gather information. The appellant neglects Ms.

Wilkinson’s testimony that her role is to gather information for the purposes of medical Delaware County, Case No. 23 CAA 06 0037 9

diagnosis and treatment. She states that the medical provider always speaks with her

before performing the check-up to aid their examination. The information gathered by Ms.

Wilkinson is necessary for the medical provider to know what has happened to the child’s

body, what testing needs to be done, and the medical history of the child. Furthermore,

the appellant pointed out in Dr. Greene’s testimony that evidence of sexual abuse is

unlikely to be found after a ten-year delay. Therefore, the statements providing the

medical history, trauma, and mental health of the patient are all appropriate for medical

diagnosis or treatment.

{¶36} Also, the appellee edited the video only to show the portion that involves

the medical diagnosis or treatment of the victim. However, the appellant’s trial counsel

asked that the entire video be played if the trial court lets in the Evid.R. 803(4) evidence.

Under the invited error doctrine, “a party is not permitted to take advantage of an error

that he himself invited or induced the court to make.” Davis v. Wolfe, 92 Ohio St.3d 549,

552, 751 N.E.2d 1051 (2001). “The invited error doctrine precludes a defendant from

making an affirmative and apparent strategic decision at trial and then complaining on

appeal that the result of that decision constitutes reversible error.” State v. Hill, 5th Dist.

Stark No. 2023 CA 00069, 2024-Ohio-1717, ¶74, citing State v. Wilson, 5th Dist.

Muskingum No. CT 2019-0039, 2020-Ohio-1217, ¶20; See also State v. Doss, 8th Dist.

Cuyahoga No. 84433, 2005-Ohio-775, ¶7, quoting United States v. Jernigan, 341 F.3d

1273, 1290 (11th Cir.2003). Therefore, to the extent any evidence from the video that

came in that was not for medical diagnosis or treatment because of the appellant’s

request that the whole video be played and not just those portions related to medical Delaware County, Case No. 23 CAA 06 0037 10

diagnosis or treatment, the appellant invited such error and is precluded from arguing that

it constitutes reversible error now.

{¶37} Moreover, Crim.R. 52(A) defines harmless error as “[a]ny defect,

irregularity, or variance which does not affect substantial rights shall be disregarded.”

“[T]he government bears the burden of demonstrating that the error did not affect the

substantial rights of the defendant.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,

802 N.E.2d 643, ¶15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct. 1770,

123 L.Ed.2d 508.

{¶38} In this case, the victim testified to the abuse inflicted by the appellant that

was discussed in the CAC interview. “Where other admissible evidence mirrors improper

hearsay, the error in allowing the hearsay is generally deemed harmless, since it would

not have changed the outcome of the trial.” State v. Williams, 1st Dist. Hamilton, 2017-

Ohio-8898, 101 N.E.3d 547, ¶17, citing State v. Richcreek, 6th Dist. Wood No. WD-09-

072, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶43 , citing State v. Byrd,

8th Dist. Cuyahoga No. 82145, 2003-Ohio-3958, ¶39; State v. Paskins, 5th Dist. Fairfield

No. 2021 CA 00032, 2022-Ohio-3810, 199 N.E.3d 680, ¶44. Therefore, assuming,

arguendo, that hearsay evidence was admitted in error, such error was harmless beyond

a reasonable doubt.

{¶39} Accordingly, the appellant’s first Assignment of Error is overruled.

III.

{¶40} In the appellant’s third Assignment of Error, the appellant argues the

evidence against the appellant was legally insufficient as to Count Seven as venue was

not established. We disagree. Delaware County, Case No. 23 CAA 06 0037 11

{¶41} Sufficiency of the evidence was addressed by the Ohio Supreme Court in

State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754:

The test for sufficiency of the evidence is “whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus, superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89,

102, 684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “ ‘Proof beyond a

reasonable doubt’ is proof of such character that an ordinary person would

be willing to rely and act upon it in the most important of the person’s own

affairs.” RC. 2901.05(E). A sufficiency-of-the-evidence challenge asks

whether the evidence adduced at trial “is legally sufficient to support the jury

verdict as a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-

4215, 954 N.E.2d 596, ¶219.

Id. at ¶57.

{¶42} Thus, a review of the constitutional sufficiency of evidence to support a

criminal conviction requires a court of appeals to determine whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Delaware County, Case No. 23 CAA 06 0037 12

{¶43} The appellant specifically argues that the conduct that led to Count Seven

in the indictment took place in Morrow County and was not pleaded in the indictment.

{¶44} “[U]nindicted offenses cannot serve as a basis for venue under the statute.”

State v. Williams, 9th Dist. Lorain No. 14CA010641, 2015-Ohio-3932, 42 N.E.3d 347, ¶13.

{¶45} R.C. §2901.12(H) states,

(H) When an offender, as part of a course of criminal conduct, commits

offenses in different jurisdictions, the offender may be tried for all of those

offenses in any jurisdiction in which one of those offenses or any element

of one of those offenses occurred. Without limitation on the evidence that

may be used to establish the course of criminal conduct, any of the following

is prima-facie evidence of a course of criminal conduct:

(1) The offenses involved the same victim, or victims of the same type

or from the same group.

(2) The offenses were committed by the offender in the offender’s same

employment, or capacity, or relationship to another.

(3) The offenses were committed as part of the same transaction or

chain of events, or in furtherance of the same purpose or objective.

(4) The offenses were committed in furtherance of the same conspiracy.

(5) The offenses involved the same or a similar modus operandi.

(6) The offenses were committed along the offender’s line of travel in

this state, regardless of the offender’s point of origin or destination.

{¶46} The indictment for Count Seven reads: Delaware County, Case No. 23 CAA 06 0037 13

THE JURORS OF THE GRAND JURY of the State of Ohio, within

and for the body of the County of Delaware, on their oaths, in the name and

by the authority of the State of Ohio, do find and present that during the

period of February 1, 2008 through April 15, 2010 in Delaware County,

Ohio, or by some manner enumerated in Section 2901.12 of the Ohio

Revised Code whereby proper venue is placed in Delaware County, Ohio,

ERIC J. BELLAMY, did have sexual contact with another, not the spouse of

ERIC J. BELLAMY; cause another, not the spouse of ERIC J. BELLAMY to

have sexual contact with ERIC J. BELLAMY; or cause two or more other

persons to have sexual contact when Jane Doe one of the other persons,

is less than thirteen years of age, whether or not ERIC J. BELLAMY knows

the age of that person, this being Gross Sexual Imposition in violation of

Section 2907.05(A)(4) of the Ohio Revised Code, a Third Degree Felony

and against the peace and dignity of the State of Ohio.

{¶47} In the case sub judice, N.S. testified that the appellant caused her to touch

his penis while they resided in Morrow County, Ohio before moving to Delaware County,

Ohio. The indictment included multiple counts of Rape and Gross Sexual Imposition

against the appellant occurring in Delaware County, where N.S. was the victim. As R.C.

¶2901.12(H)(1) grants venue for offenses involving the same victim and the indictment

specifically mentions conduct giving Delaware County, Ohio, proper venue by R.C.

¶2901.12, we find the indictment does charge the appellant with this offense.

{¶48} The appellant also argues that the prosecution never established that Count

Seven happened in the State of Ohio, only that it happened in Cardington in Morrow Delaware County, Case No. 23 CAA 06 0037 14

County. However, the Ninth District Court of Appeals found that if, based on facts and

circumstances of the testimony, the jury could draw no other reasonable inference as to

where the offense occurred, that venue does not need to be proven in express terms.

State v. Simmons, 9th Dist. Summit No. 22221, 2005-Ohio-1469, ¶21. While it “would have

been better practice for the State to have established that [the offenses] occurred in Ohio

in express terms,” it clearly appears from the evidence presented that the events in

question occurred in Morrow County, Ohio. Simmons at ¶20.

{¶49} Accordingly, we find that the evidence of venue was sufficient to sustain the

appellant’s conviction on Count Seven. The appellant’s third Assignment of Error is

overruled.

II.

{¶50} In the appellant’s second Assignment of Error, the appellant argues that the

trial court erred in admitting hearsay testimony from L.K., N.S., and Detective Kridler,

L.K.’s testimony violated the best evidence rule, Dr. Bassman’s expert testimony, and

testimony regarding conduct occurring in Morrow County. We disagree.

{¶51} Again, “a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” Rigby v. Lake County, 58 Ohio St.3d 269,

271, 569 N.E.2d 1056 (1991). The appellate court must limit its review of the trial court’s

admission or exclusion of evidence to whether the trial court abused its discretion. Id. The

abuse of discretion standard is more than an error of judgment; it implies the court ruled Delaware County, Case No. 23 CAA 06 0037 15

arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217,

Evidence of Conduct Occurring in Morrow County

{¶52} The appellant argues that testimony about the appellant’s “unindicted

conduct,” which occurred in Morrow County, was admitted in error. However, as

discussed above in the appellant’s third assignment of error, this conduct was indicted,

and venue was appropriate in Delaware County. Accordingly, the trial court did not err in

admitting testimony regarding Count Seven of the indictment.

L.K.’s Testimony

{¶53} Evid.R. 801(C) defines hearsay as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted in the statement.”

{¶54} Upon review, we find no error in the trial court’s decision to admit L.K.’s

testimony. L.K. testified that she saw N.S.’s search history, that upon seeing this search

history, N.S. disclosed that the appellant abused her, and because of that disclosure, L.K.

contacted the police and initiated CAC interview. She testified as to how this information

impacted her conduct, not for the truth of the matter asserted. More importantly, the trial

court instructed the jury that these statements were offered to show why L.K. called the

police and initiated the CAC interview. “[A jury is] presumed to obey the court’s

instruction.” State v. Tillman (1997), 119 Ohio App.3d 449, 461, 695 N.E.2d 792.

Accordingly, the trial court did not err in admitting L.K.’s testimony and providing an

appropriate jury instruction. Delaware County, Case No. 23 CAA 06 0037 16

Best Evidence Rule

{¶55} The appellant also summarily argues that L.K.’s testimony regarding

discovering the search history on N.S.’s phone violates the best evidence rule.

{¶56} Appellants have the burden of demonstrating an error on appeal. See,

App.R. 16(A)(7). “It is the duty of the appellant, not this court, to demonstrate his assigned

error through an argument that is supported by citations to legal authority and facts in the

record.” State v. Untied, 5th Dist. Muskingum No. CT2006-0005, 2007-Ohio-1804, ¶141,

quoting State v. Taylor, 9th Dist. Medina No. 2783-M, 1999 WL 61619 (Feb. 9, 1999). See,

also, App.R. 16(A)(7).

{¶57} Admissibility of evidence may be challenged on several bases, but we are

not at liberty to make the appellant’s argument for him. “If an argument exists that can

support [an] assignment of error, it is not this court’s duty to root it out.” State v. Romy,

5th Dist. Stark No. 00066, 2021-Ohio-501, 168 N.E.3d 86, ¶35, citing Thomas v. Harmon,

4th Dist. Lawrence No. 08CA17, 2009-Ohio-3299, ¶14. Therefore, we may disregard

arguments the appellant presented for review since he failed to brief the issue. The

appellant makes a once sentence claim that L.K.’s testimony regarding N.S.’s search

history violated the best evidence rule without stating the best evidence rule, explaining

the rule, and applying the rule to the facts of this case. Consequently, we find that the

appellant has not presented an argument, but relies only upon the assertion of error, and

we thus disregard this argument.

Sergeant Kridler’s Testimony

{¶58} Upon review, we find no error in the trial court’s handling of Sergeant

Kridler’s testimony. Sergeant Kridler started to testify about an incident N.S. disclosed to Delaware County, Case No. 23 CAA 06 0037 17

him, but the appellant’s trial attorney objected before he could. The trial court instructed

the appellee to ask a different question. The objection was sustained; the evidence

regarding an incident between N.S. and the appellant was not testified to by Sergeant

Kridler. Accordingly, the trial court did not err in its handling of Sergeant Kridler’s

testimony.

N.S.’s Testimony

{¶59} Again, Evid.R. 801(C) defines hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted in the statement.”

{¶60} We note the appellant did not object to this testimony at trial. We therefore

review only for plain error. State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968),

paragraph three of the syllabus. Crim.R. 52(B) provides that “plain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention

of the court.” In State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), the Ohio

Supreme Court held:

Under Crim.R. 52(B), the defendant bears the burden of

demonstrating that a plain error affected his substantial rights. But even if

the defendant satisfies this burden, an appellate court has discretion to

disregard the error and should correct it only to “prevent a manifest

miscarriage of justice.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,

802 N.E.2d 643, ¶14.

{¶61} The appellant argues the trial court should not have admitted the following

testimony from N.S.: Delaware County, Case No. 23 CAA 06 0037 18

Q: Okay. Tell me what happened that day.

A: We were at my grandma’s house for Thanksgiving and my mom asked

me to use my phone to look up something, I don’t remember what it was to

be exact. I don’t know. And she had saw Eric Bellamy’s name in my search

history on my phone.

Q: Okay.

A: --and had asked me about that and I told her, I told her I’d tell her when

we got home.

Q: Okay. Do you remember what you said to her?

A: Like when I told her I’d tell her when we got home?

Q: Either one or when you got home.

A: Well, at my grandma’s house, my exact words were, you’re going to shit

your pants; I’ll tell you when we get home, that’s what I told her.

Tr. 388-389.

{¶62} Upon review, we find no error in the trial court’s decision to admit N.S.’s

testimony. N.S. testified not to show the truth of what L.K. said to her, but for its effect on

N.S.’s conduct. Furthermore, L.K. testified to the same interaction during her testimony.

Accordingly, the trial court did not err in allowing N.S.’s testimony.

Dr. Bassman Testimony

{¶63} The appellant argues that the trial court erred in admitting Dr. Bassman’s

testimony as an expert witness and that his report did not comply under Crim.R. 16K. We

disagree. Delaware County, Case No. 23 CAA 06 0037 19

{¶64} This Court reviews the admission of expert testimony for an abuse of

discretion. State v. Howard, 1st Dist. Hamilton Nos. C-190451 and C-190452, 2020-Ohio-

5072, ¶23.

{¶65} Evid.R. 702 states:

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond the knowledge

or experience possessed by lay persons or dispels a misconception

common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the

testimony;

(C) The witness’ testimony is based on reliable scientific, technical, or other

specialized information. To the extent that the testimony reports the

result of a procedure, test, or experiment, the testimony is reliable only

if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is

based is objectively verifiable or is validly derived from widely

accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably

implements the theory;

(3) The particular procedure, test, or experiment was conducted

in a way that will yield an accurate result. Delaware County, Case No. 23 CAA 06 0037 20

{¶66} The appellant argues that Dr. Bassman vouched for N.S.’s credibility.

However, it is clear from the testimony that Dr. Bassman did not; he bolstered the

witness’s testimony. The Ohio Supreme Court held that an expert may testify that the

behavior of an alleged child sexual abuse victim is consistent with behavior observed in

other sexually abused children. State v. Stowers, 81 Ohio St.3d 260, 261, 690 N.E.2d

881 (1998). An expert may not offer an opinion as to the truth of the victim’s statements,

but the expert is permitted to provide additional support for the truth of the facts testified

to by the victim or provide testimony to assist the fact finder in assessing the child’s

veracity. Id. at 262-263.

{¶67} In State v. Svoboda, 1st Dist. Hamilton No. C-190752, 2021-Ohio-4197, 180

N.E.3d 1277, the State called an expert witness to testify about why certain behaviors,

such as recantation and delayed disclosure occur in child sexual abuse cases. The First

District Court of Appeals held that this type of testimony was not vouching for the child’s

credibility but was assisting the fact finder in assessing the child’s veracity. Id. at ¶93.

{¶68} Dr. Bassman’s testimony also assisted the fact finder in assessing the

child’s veracity. He did not testify to the veracity of any of N.S.’s statements. He made

clear that he had not examined or met with anyone involved in the alleged conduct giving

rise to this case. He provided testimony to explain why delayed disclosure by child sexual

abuse victims and the minimization or dissociation from the trauma of the victims, and

explained grooming behavior and how and why it occurs in child sexual abuse cases.

{¶69} The appellant also claims that Dr. Bassman’s report does not coply with

Crim.R. 16(K).

{¶70} Crim.R. 16(K) states: Delaware County, Case No. 23 CAA 06 0037 21

An expert witness for either side shall prepare a written report

summarizing the expert witness’s testimony, findings, analysis,

conclusions, or opinion, and shall include a summary of the expert’s

qualifications. The written report and summary of qualifications shall be

subject to disclosure under this rule no later than twenty-one days prior to

trial, which period may be modified by the court for good cause shown,

which does not prejudice any other party. Failure to disclose the written

report to opposing counsel shall preclude the expert’s testimony at trial.

{¶71} This Court has previous noted:

The underlying purpose of Crim.R. 16(K) is stated in the Staff Notes

as follows: “Failure to comply with the rule precludes the expert witness from

testifying during trial. This prevents either party from avoiding pretrial

disclosure of the substance of expert witness’s testimony by not requesting

a written report from the expert, or not seeking introduction of the report.”

Crim.R. 16(K) is thus designed to avoid “trial-by-ambush” scenarios. See

State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶39 (6th Dist.) [error to allow

doctor’s expert testimony when testimony exceeded the scope of report].

When the prosecution timely provides Crim.R. 16(K) report to the defense,

undue surprise is eliminated and the defense may challenge the expert’s

findings, conclusions, or qualifications, and/or obtain their own expert. See,

State v. Hall, 1st Dist. Hamilton No. C-170699, 2019-Ohio-2985, ¶11, appeal

not allowed, 157 Ohio St.3d 1485, 2019-Ohio-4600, 134 N.E.3d 204.

State v. Blue, 5th Dist. Tuscarawas No. 2020AP080015, 2021-Ohio-1703, ¶52. Delaware County, Case No. 23 CAA 06 0037 22

{¶72} In State v. Blue, the expert witness also submitted a report in the form of a

letter. This report succinctly summarized the expert’s “findings, analysis, conclusions, or

opinions” regarding her knowledge of nondisclosure and denial by victims of childhood

sexual abuse. Id. at ¶54.

{¶73} In the case sub judice, the appellant also argues the letter submitted by Dr.

Bassman is not a report within the meaning of Crim.R. 16(K). We disagree. As in Blue,

Dr. Bassman’s report succinctly summarizes his “findings, analysis, conclusions, or

opinions” regarding his knowledge of delayed disclosure, dissociation, minimization, and

grooming. See Crim.R. 16(K). The report lists Dr. Bassman’s qualifications. The report

specifically says that Dr. Bassman has not met the victim or the accused. His testimony

is not to ascertain the veracity of information related to the case but to provide the finder

of fact with information relevant to childhood sexual abuse for delayed disclosure,

grooming, and behaviors associated with childhood sexual abuse. Accordingly, we find

that Dr. Bassman’s letter meets the criteria for an expert report set forth in Crim.R. 16(K).

{¶74} Therefore, the appellant’s second Assignment of Error is overruled.

IV.

{¶75} In the appellant’s fourth Assignment of Error, the appellant argues he was

deprived of effective assistance of counsel as his trial counsel failed to object to L.K.’s

testimony on what she saw in N.S.’s search history, L.K.’s testimony on N.S.’s disclosure

of the appellant’s abuse, to object to testimony regarding Count Seven of the indictment,

and Dr. Bassman’s testimony. We disagree. Delaware County, Case No. 23 CAA 06 0037 23

{¶76} The standard of review for ineffective assistance of counsel was set forth in

the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), and was discussed by this court in Mansfield v. Studer, 5th Dist. Richland

Nos. 2011-CA-93 and 2011-CA-94, 2012-Ohio-4840:

A claim of ineffective assistance of counsel requires a two-prong

analysis. The first inquiry is whether counsel’s performance fell below an

objective standard of reasonable representation involving a substantial

violation of any of defense counsel’s essential duties to appellant. The

second prong is whether the appellant was prejudiced by counsel’s

ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 133 S.Ct. 838 (1993);

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶77} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111,

129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).

{¶78} To show deficient performance, the appellant must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland at 688.

This requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Strickland at 687. Counsel also has a duty to bring to bear such skill and knowledge as

will render the trial a reliable adversarial process. Strickland at 688. Delaware County, Case No. 23 CAA 06 0037 24

Thus, a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct. A convicted

defendant making a claim of ineffective assistance must identify the acts or

omissions of counsel that are alleged not to have been the result of

reasonable professional judgment. The court must then determine whether,

in light of all the circumstances, the identified acts or omissions were outside

the wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel’s function, as

elaborated in prevailing professional norms, is to make the adversarial

testing process work in the particular case. At the same time, the court

should recognize that counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.

Id.

In light of “the variety of circumstances faced by defense counsel

[and] the range of legitimate decisions regarding how best to represent a

criminal defendant,” the performance inquiry necessarily turns on “whether

counsel’s assistance was reasonable considering all the circumstances.”

Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all

points, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at

2064. Delaware County, Case No. 23 CAA 06 0037 25

Studer, supra, at ¶¶58-61. Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189

(1980).

{¶79} Thus, in order to prevail on an ineffective assistance of counsel argument

the appellant must show both: 1) that his trial counsel’s performance fell below an

objective standard of reasonable representation involving a substantial violation of an

essential duty to the appellant; and 2) that the appellant was prejudiced by such the

alleged ineffectiveness.

{¶80} “A defense counsel’s failure to object is not ineffective assistance of counsel

if the evidence is admissible.” State v. Brown, 3rd Dist. Allen No. 1-19-61, 2020-Ohio-

3614, 154 N.E.3d 1129, ¶79, quoting State v. Jackson, 8th Dist. Cuyahoga No. 86105,

2006-Ohio-174, ¶87.

{¶81} As discussed in the appellant’s first Assignment of Error, L.K.’s testimony

regarding her observing the search history on the cellphone and N.S.’s disclosure that

the appellant was worried about the teeth marks N.S. left on his penis were not

inadmissible hearsay as they were not offered for the truth of the matter asserted, but for

its effect on L.K.’s conduct. These statements caused L.K. to contact the police and set

up a CAC interview.

{¶82} As discussed in the appellant’s third Assignment of Error, Delaware County

was an appropriate venue to bring Count Seven Gross Sexual Imposition for acts

occurring in Morrow County but with the same victim as those occurring in Delaware

County. Accordingly, testimony regarding this conduct is admissible. Delaware County, Case No. 23 CAA 06 0037 26

{¶83} As discussed in the appellant’s second Assignment of Error, Dr. Bassman’s

testimony was properly admitted as expert testimony under Evid.R. 702. It was succinctly

summarized in Dr. Bassman’s report as required by Crim.R. 16(K).

{¶84} Accordingly, the appellant has not established that the trial counsel’s failure

to object has fallen below the objective standards of reasonable representation.

{¶85} Therefore, the appellant’s fourth Assignment of Error is overruled.

V.

{¶86} In the appellant’s fifth Assignment of Error, the appellant argues his

conviction is against the manifest weight of the evidence.

{¶87} The manifest weight of the evidence argument addresses the evidence’s

effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d

541 (1997). The Thompkins Court stated:

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 established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief.” (Emphasis added) Black’s, supra, at 1594.

Id. at 387.

{¶88} The Court stated further: Delaware County, Case No. 23 CAA 06 0037 27

When a court of appeals reverses a judgment of a trial court on the

basis that the verdict is against the manifest weight of the evidence, the

appellate court sits as a “ ‘thirteenth juror’ ” and disagrees with the

factfinder’s resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102

S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio

App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 (“The court,

reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether

in resolving conflicts in the evidence, the jury clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered. The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.”).

{¶89} Furthermore, “in determining whether the judgment below is manifestly

against the weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts. * * *.

{¶90} “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.” 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). Delaware County, Case No. 23 CAA 06 0037 28

{¶91} The appellant’s argument does not argue that any specific conviction was

against the manifest weight, but that all of them are because the appellant does not find

N.S. credible. We disagree.

{¶92} R.C. §2907.02, in pertinent part, states:

(A)(1) No person shall engage in sexual conduct with another who is not the

spouse of the offender or who is the spouse of the offender but is living

separate and apart from the offender, when any of the following applies:

**

(b) The other person is less than thirteen years of age, whether or not the

offender knows the age of the other person.

{¶93} R.C. §2907.05, in pertinent part, states:

(A) No person shall have sexual contact with another, not the spouse of

the offender; cause another, not the spouse of the offender, to have sexual

contact with the offender; or cause two or more other persons to have

sexual contact when any of the following applies:

(4) The other person, or one of the other persons, is less than thirteen years

of age, whether or not the offender knows the age of the person.

{¶94} R.C. §2903.211(A)(1) states:

No person by engaging in a pattern of conduct shall knowingly cause

another person to believe that the offender will cause physical harm to the

other person or a family or household member of the other person or cause Delaware County, Case No. 23 CAA 06 0037 29

mental distress to the other person or a family or household member of the

other person. In addition to any other basis for the other person’s belief that

the offender will cause physical harm to the other person or the other

person’s family or household member or mental distress to the other person

or the other person’s family or household member , the other person’s belief

or mental distress may be based on words or conduct of the offender that

are directed at or identify a corporation, association, or other organization

that employs the other person or to which the other person belongs.

{¶95} In the case sub judice, the appellant argues N.S.’s testimony was not

believable because of delayed disclosure and noted inconsistencies in the testimony,

such as if anyone else was home at the time of the rapes or if the appellant always wore

a condom or only sometimes wore a condom while raping her. Appellant also argues that

there was no corroborating evidence of the rape. “[C]orroboration of victim testimony in

rape cases is not required.” State v. Meeks, 5th Dist. Stark No. 2014CA00017, 2015-Ohio-

1527, 34 N.E.3d 382, ¶81, appeal not allowed, 143 Ohio St.3d 1543, 2015-Ohio-4633, 40

N.E.3d 1180.

{¶96} N.S. did testify that one two occasions he vaginally raped her, he anally

raped her, he performed cunnilingus on her, and she performed fellatio on him,

constituting the convictions for rape. She also testified that she was forced to touch his

penis, that he would rub her vagina, and that he would touch and kiss her all over her

body. N.S. testified with specificity that this happened on numerous occasions. She

testified this carried on for months in both Morrow County and Delaware County. Delaware County, Case No. 23 CAA 06 0037 30

{¶97} The lack of corroboration, the minor inconsistencies, and that she waited

ten years to disclose the abuse does not show that the jury clearly lost its way and created

such a manifest miscarriage of justice by convicting the appellant.

{¶98} Therefore, the appellant’s fifth Assignment of Error is overruled.

VI.

{¶99} In the appellant’s sixth Assignment of Error, he argues that the cumulative

effect of the assigned errors denied him his right to a fair trial. We disagree.

{¶100} As set forth by this Court in Brahm v. DHSC, LLC, 2019-Ohio-766,

132 N.E.3d 266:

Pursuant to the cumulative error doctrine, which is usually presented

in criminal cases, a conviction will be reversed where the cumulative effect

of errors in a trial deprives the defendant of the constitutional right to a fair

trial even though each individual error by itself does not constitute cause for

reversal. State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623 (1995).

{¶101} A cumulative error analysis aggregates only actual errors to

determine their cumulative effect. Individual rulings frequently will have an adverse effect

on a party, but reversal would not be warranted unless that party can demonstrate that

the ruling was an error. Impact alone, not traceable to error, cannot form the basis for

reversal. The same principles apply to cumulative error analysis. Therefore, we hold that

a cumulative error analysis should evaluate only the effect of matters determined to be

errors, not the cumulative effect of non-errors. State v. Allen, 5th Dist. Delaware No. 2009- Delaware County, Case No. 23 CAA 06 0037 31

CA-13, 2010-Ohio-4644, ¶ 257. Where we have found that the trial court did not err,

cumulative error is simply inapplicable. State v. Carter, Stark App. No.2002CA00125,

2003-Ohio-1313 at ¶ 37. As we have not found multiple instances of error, the appellant’s

sixth assignment of error is overruled.

CONCLUSION

{¶102} For the forgoing reasons, the judgment of the Court of Common

Pleas, Delaware, Ohio, is hereby affirmed.

By: Baldwin, J.

Delaney, P.J. and

Hoffman, J. concur.