State v. Bouyer

2023 Ohio 4793, 233 N.E.3d 41

• Court: Ohio Court of Appeals
• Decided: December 28, 2023
• Docket: 112045
• Status: Published

Opinion

[Cite as State v. Bouyer, 2023-Ohio-4793.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112045 v. :

JASON BOUYER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 28, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-647216-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Eben McNair, Megan Helton and Caroline Maver, Assistant Prosecuting Attorneys, for appellee.

Patituce and Associates, LLP, Megan M. Patituce, and Joseph C. Patituce, for appellant.

EMANUELLA D. GROVES, J.:

Defendant-appellant Jason Bouyer (“Bouyer”) appeals his convictions

for rape and other charges. For the following reasons, we affirm. Factual and Procedural History

In January of 2020, a grand jury indicted Bouyer on twenty-one sex-

related charges involving three victims, each related to Bouyer by blood or marriage.

The first set of charges pertained to J.D., D.O.B. 12/23/2004, alleging two counts of

rape (Counts 7 and 10); one count of attempted rape (Count 3); three counts of

kidnapping (Counts 6, 8, and 11); three counts of sexual battery (Counts 4, 9, and

12); three counts of gross sexual imposition (Counts 1, 2, 5); one count of

importuning (Count 13); and one count of endangering children (Count 14), for a

total of 14 counts. The three counts of kidnapping included sexual motivation

specifications and twelve of the counts (Counts 1-12) included sexually violent

predator specifications. Counts 1 and 2 were alleged to have occurred between

January 1, 2015, and December 31, 2015; Counts 3-6 between January 1, 2016, and

November 30, 2016; Counts 7-9 between January 1, 2017, and December 22, 2017;

Counts 10-12 between December 23, 2017, and February 28, 2018; Count 13

between May 1, 2018, and June 30, 2018; and Count 14 between January 1, 2015,

and February 28, 2018.

The next set of charges pertained to T.W., D.O.B. 2/29/2000, alleging

two counts of gross sexual imposition (Counts 15 and 16). The final set of charges

pertained to M.B., D.O.B. 5/25/2004, and alleged three counts of gross sexual

imposition (Counts 18-20), one count of soliciting (Count 17), and one count of

disseminating matters harmful to a juvenile (Count 21). Count 15 was alleged to have occurred between June 1, 2011, and August 31, 2011;1 Count 16 on March 1,

2016; Count 17 between December 1, 2015, and May 1, 2018; and Counts 18-21

between May 1, 2018, and November 18, 2019.

The allegations surfaced in May 2019 after J.D. disclosed to two of her

family members that Bouyer had sexually assaulted her. J.D. became upset while

attending a family function at her paternal grandparents’ home. When her aunt,

B.D., and her cousin, K.D., tried to find out what was wrong, J.D. broke down. At

the time, J.D. was not able to verbalize exactly what happened, but through

questions and hand gestures, B.D. and K.D. learned that Bouyer had sexually

assaulted her.

On the way home, K.D. told her mother, J.W., about the conversation

with J.D. J.W. decided they needed to talk to J.D.’s father, Manny. The following

day, they went to Manny’s house. J.W. went to the garage to talk to her brother,

while K.D. went inside to talk to J.D. J.W. did not go into detail with her brother

but told him that something was happening to J.D. and that he needed to talk to her.

J.D. eventually talked to her father and explained, without a lot of detail, what

happened. The following day, he took her to file a police report.

At trial, J.D. testified that her mother, N.B., met Bouyer in

approximately 2010 and married him in 2015. J.D.’s relationship with her mother

changed after she met Bouyer. Before, J.D. felt she could confide in her mother.

1 The indictment originally alleged this crime occurred between July 1, 2014, and

July 31, 2014. On February 15, 2o22, the state moved to amend the indictment based on further conversations with T.W., which the trial court granted. Afterward, J.D. felt her mother told Bouyer everything that J.D. discussed with her.

Additionally, when Bouyer and N.B. started dating, N.B. would disappear. J.D.

would have to stay with anyone who would take her because N.B. was not around.

Beginning in 2014, J.D. was in therapy, primarily to address the

absence of her biological father. Her therapy sessions were not entirely confidential.

Her mother and Bouyer would meet with the therapist to discuss issues J.D. raised

during sessions. As a result, J.D. did not feel she could confide in her therapist.

The first time Bouyer touched her inappropriately they were wrestling.

At the time, Bouyer, N.B., J.D., and M.B. were living together at a house on

Gramatan in the city of Cleveland. They would all play wrestle with one another.

Sometime after N.B. and Bouyer got married in May 2015, and around the time J.D.

turned 10 or 11, while wrestling Bouyer touched J.D. on her vagina over her clothes.

J.D. froze. She was not sure if it was accidental or purposeful. However, she

remembered that his hand stayed on her vagina and that he moved his fingers

against her.

It happened again in Bouyer’s bedroom, after her 11th birthday. Her

mother had just left for work. In those days, her mother worked at bars, usually in

the evenings, between 5:00 p.m. and 3:00 a.m. While they were wrestling, Bouyer’s

bare hand moved inside her pants and touched her vagina, bare skin to bare skin.

She froze again. She began to realize his actions were intentional.

There were times when J.D. and Bouyer had a good relationship. Her

biological father was not always around and J.D. struggled with his absence. As a result, she would talk to Bouyer. There was a time however when those

conversations turned to “gross” things. When asked what “gross” meant, J.D.

indicated sexual things. During one of those conversations in his bedroom, J.D.

ended up lying on the bed. She remembered Bouyer grabbed a condom, put it on,

and told her to pull down her pants. He pressed his penis to the outside of her

vagina, skin to skin. She felt pressure and pain and told him to stop, which he did.

She got up, got dressed, and went downstairs. This incident happened sometime in

2016, the year J.D. turned 12.

Another time, J.D. was in her bedroom in the basement talking with

Bouyer at the Gramatan house. The conversation turned to sexual things. J.D.

initially testified that they were talking about her boyfriend, whom she started

dating on December 14, 2017. However, she later testified that this incident

happened in August 2017. It happened at night, after her mother went to work,

while M.B. was upstairs. Bouyer asked her to “give him head.” When asked what

that meant, J.D. testified it involved her mouth on his penis. She did not feel like

she could say no because she was afraid of him. She complied and during the act,

Bouyer instructed her how to perform. She remembered that he moved her head

aside before he ejaculated. He used his shirt to clean himself up.

A second incident of fellatio occurred while the two were in the

bedroom Bouyer shared with N.B. Bouyer again instructed her how to perform and

moved her head aside before he ejaculated. J.D. dated this incident in February

2018 at the Gramatan house. J.D. never told her mother what happened because she feared her mother would tell Bouyer. She was afraid that her mother would not

do anything, that she, J.D., would get in trouble, or something worse.

When Bouyer asked her a third time for oral sex, she refused. The next

day, she randomly got in trouble, which she believed happened, in part, because she

said no. This incident occurred sometime after the family moved to a home on

Parkridge in the spring 2018.

J.D. disclosed the abuse to her boyfriend J.B. over the phone. He

advised her to tell someone. She told him she did not know how to tell anyone and

that she was scared. K.D. and B.D. testified regarding J.D.s disclosure to them of

the sexual abuse. J.W. testified regarding the subsequent conversation with Manny.

Manny testified to his conversations with his sister J.W. and then J.D.’s disclosure

to him about what happened. J.B. testified about his conversation with J.D.

The police, in the course of the investigation, interviewed T.W. T.W.

would sometimes babysit J.D. and M.B. The first time Bouyer touched T.W., she

was 11 years old. She remembered being at the Gramatan house and standing by the

door, waiting for some friends. It was around June or July 2011. She was looking

outside for her friends when Bouyer came up behind her and “caressed” her butt.

He did not grab her but placed his hand on her butt and moved his hand back and

forth against her. While doing this, Bouyer commented that T.W.’s body was better

than her sister’s.

The second incident T.W. remembered occurred at her 16th birthday

party in 2016. To symbolize the change from child to woman, she had choreographed a dance where the long skirt she was wearing would unwrap to reveal

a short skirt. Her father was supposed to dance with her, but they had a fight and

T.W. wanted someone else to take over for him. From her recollection, Bouyer

volunteered and she agreed. After the dance, Bouyer grabbed her by the hips and

pumped his pelvis against her butt. He did not grind against her but she was able to

feel his penis. He mentioned at the time that she was finally 16, the age of consent.

He had previously told her that the age of consent was 16. Both J.D. and M.B.

testified that Bouyer made similar comments to them, to remind them that the age

of consent was 16.

Manny testified to a set of text messages he saw on J.D.’s phone while

they were on a family trip to Puerto Rico in 2017. In one of the texts, J.D. wrote

“Sneak out and go clubbing lol.” Bouyer responded, “We going to be in the club

when you turn 16. Popping bottles.” These text messages were preserved in

evidence and presented at trial. Manny told J.D.’s mother, N.B., about the texts

because he felt the communication between Bouyer and J.D. was inappropriate. To

Manny’s knowledge, N.B. did not act on the texts. Afterward, Manny was not able

to see J.D. for six or seven months. He believed that Bouyer and N.B. kept J.D. from

him. He was able to resume contact by going to court.

During the trial, the state called Shannon Hanrahan (“Hanrahan”).

Hanrahan was an intake worker with the Sexual Abuse Unit at the Cuyahoga County

Division of Children and Family Services. She was assigned to M.B.’s case and

conducted a recorded interview with her in November 2019. Hanrahan testified that the purpose of the interview was to gauge M.B.’s safety and investigate her

allegations. The state played the beginning of the video and asked Hanrahan to

identify it. At the 18-second mark in the video, the defense requested a sidebar and

objected to the introduction of the video. The state argued that they were permitted

to introduce the interview because it was conducted to assess M.B.’s safety, her need

for medical treatment and diagnosis as well as any mental health referrals that might

be needed. The trial court overruled the objection. Midway through the video, the

defense objected again. After ascertaining that M.B. was going to testify, the defense

withdrew its objection.

At completion of the video, the trial adjourned for the day. The

following morning, the defense renewed its objection to the video arguing that it was

mostly testimonial and that the state improperly introduced the evidence. The

defense opined that the state should have filed a motion in limine prior to trial to

allow the court to determine what information was testimonial and what

information could be properly presented to the jury. The trial court elected to table

the objection until M.B. testified. The defense then moved for a mistrial, which the

trial court denied. After a weekend break, the defense filed a formal motion and

requested a mistrial. After hearing arguments of counsel, the trial court denied the

motion.

Bouyer’s daughter, M.B., remained in the home after J.D. disclosed

the sexual abuse. M.B. was not informed of all the details but knew allegations were

made. In November 2019, M.B. texted J.D. from a cell phone she received from her mother. Both M.B. and J.D. testified that Bouyer and N.B. were very strict about

phone usage. Every night they were required to place their phones on the kitchen

counter. One to two weeks prior to M.B. reaching out to J.D., her phone was taken,

as punishment. Subsequently, M.B. ran away from home. She eventually returned

home and her mother brought her a cell phone at her school.

Bouyer learned that M.B. had a phone, and as a punishment, removed

most of her clothes and other personal items from her room. Shortly thereafter,

M.B. contacted her mother and they went together to the police. M.B. reported to

the police that she had been touched by her father and that she received texts from

him. In the texts, Bouyer asked M.B. to perform sexual acts with him for cash. M.B.

testified to three incidents, all at the Parkridge home. One where Bouyer touched

her butt while she was washing dishes; a time when his penis touched her vagina

while they were wrestling; and a time when Bouyer texted her a sexually graphic

picture/video. M.B. testified that when she got her phone in the morning, texts from

Bouyer were deleted.

After the state rested its case, the defense renewed its objection to the

admission of exhibit No. 11, M.B.’s interview. The trial court sustained the objection

and agreed to issue a limiting instruction. The court refused to declare a mistrial,

finding that M.B.’s interview did not rise to the level of prejudice necessary to require

a new trial and noting that the defense had an opportunity to cross-examine the

witness. The defense then began its case in chief by calling N.B. to the stand.

N.B. testified that she, Bouyer, J.D., and M.B. moved into the Gramatan home in

September 2011. She and Bouyer started dating the year prior, about April 2010.

However, during the summer 2011, N.B. indicated she and Bouyer had broken up.

They broke up in March 2011 and got back together about six months later. Per N.B.,

T.W. did not start babysitting J.D. and M.B. until 2014 or 2015.

The first time N.B. became aware of J.D.’s accusations was at the

police station. Manny called her and told her to meet them at the station, which she

did. N.B. did not believe J.D.; she thought Manny was behind the allegations. N.B.

testified that during the trip to Puerto Rico, J.D. became upset because Manny

accused Bouyer of molesting her. Per N.B., J.D. stopped seeing her father because

she was upset about the allegations. After J.D. made her allegations, N.B. was angry

but said that she did not choose a side.

On cross-examination, N.B. admitted that she told J.D. in text

messages that they had to get rid of her dogs because she went to the police. The

state also introduced several telephone conversations between Bouyer and N.B.

recorded while he was in custody. In an effort to refresh her recollection, the state

asked N.B. whether she remembered making certain statements during the calls.

When she indicated she did not remember, the state played some recordings in open

court before the jury to refresh her recollection. Through these recordings, which

were not introduced into evidence, the state introduced statements by N.B. that she

wanted to confront J.D. and that it disgusted her to be in front of J.D. Prior to resting, the parties discussed a curative instruction for M.B.’s

interview. In sum, the court would advise the jury that they were not to consider the

interview in their deliberations. The defense did not object to the instruction or

suggest an alternative instruction when prompted by the court.

The instruction given to the jury was as follows:

An interview dated November 19, 2019, of [M.B.], at the Child Advocacy Center was played for you in court. You are instructed not to consider any statements in this interview for any purpose.

The trial court provided the parties with a copy of the proposed jury

instructions and the verdict forms. Both parties raised suggestions to the jury

instructions. Neither party objected to the verdict forms.

The jury found Bouyer guilty as charged on Counts 1-14, pertaining to

J.D., guilty of Count 15, pertaining to T.W., and guilty of Counts 18 and 20 pertaining

to M.B. The jury found Bouyer not guilty of Count 16, gross sexual imposition of

T.W., Count 17, soliciting M.B., Count 19, gross sexual imposition of M.B., and Count

21 disseminating matter harmful to juvenile, M.B.

After the verdict, the trial court addressed the sexually violent

predator specifications, which were bifurcated from the jury. Without an additional

hearing, and without objection, the court found Bouyer guilty of all 12 sexually

violent predator specifications associated with Counts 1-12.

Bouyer appeals assigning the following errors for our review: Assignment of Error No. 1

The state’s failure to provide a meaningful bill of particulars deprived Mr. Bouyer, as a matter of law, of his constitutionally guaranteed rights under both the United States and Ohio Constitutions.

Assignment of Error No. 2

Appellant was denied his right to a fair trial when the trial court failed to declare a mistrial after the state played a video, in full, containing reprehensible and shocking allegations that were so lacking in relevance that the trial court struck it in its entirety.

Assignment of Error No. 3

Plain error exists in jury verdict forms when the forms improperly interlace and reference, other counts as being charged conduct.

Assignment of Error No. 4

Appellant was deprived of his right to a fair trial when improper victim impact testimony was admitted without relevance and lacked probative value.

Assignment of Error No. 5

The trial court erred when it permitted the state to improperly admit recorded phone calls for the purpose of introducing those recorded statements for the truth of the matter asserted under the guise of recollection refreshed.

Assignment of Error No. 6

Appellant was denied his right to a fair trial when witnesses were permitted to testify to their belief as to the truthfulness of the purported victim in this case.

Assignment of Error No. 7

The state failed to present sufficient evidence to sustain a conviction as to Count four: sexual battery. Assignment of Error No. 8

The trial court erred in finding appellant guilty of the sexually violent predator specification where it failed to hold a hearing on the matter and the state failed to present any evidence to support the finding.

Law and Analysis

Sixth Amendment Right to Know the Nature of the Accusations

In the first assignment of error, Bouyer argues that the state’s failure

to provide a meaningful bill of particulars deprived him of his rights under the Sixth

Amendment of the United States Constitution and Article I, Section 10 of the Ohio

Constitution. Bouyer’s specific concern was that the discovery provided by the state

pointed to numerous incidents; however, the state had elected to indict him for a

select few charges. Bouyer alleges he had not received enough information from the

state to determine the nature and time frame of the alleged conduct to effectively

challenge the allegations in court.

Both the Ohio and United States Constitutions entitle a person

charged with a felony to an indictment “setting forth the ‘nature and cause of the

accusation.’” State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985)

quoting Section 10, Article I of the Ohio Constitution and the Sixth Amendment to

the United States Constitution. An indictment serves a dual purpose: (1) by

requiring the government to aver all material facts constituting the essential

elements of an offense, an accused is afforded with adequate notice and an

opportunity to be heard; and (2) when an indictment identifies and defines the offense, it enables the accused to protect himself from any future prosecutions for

the same offense. Id.

Even so, a defendant may seek more specificity by requesting a bill of

particulars. When a defendant makes a written request for a bill of particulars, the

prosecution “shall furnish the defendant with a bill of particulars setting up

specifically the nature of the offense charged and of the conduct of the defendant

alleged to constitute the offense.” Crim.R. 7(E); R.C. 2941.07. However, the bill of

particulars has the limited purpose of particularizing the conduct of the defendant

that is alleged to constitute the offense. Sellards at 171. It is not intended to provide

the defendant with evidence specifications nor to replace discovery. Id., citing State

v Wilson, 29 Ohio St.2d 203, 280 N.E. 2d 915 (1972).

Ordinarily, the dates and/or times of offenses are not required to be

included in a bill of particulars because it focuses on the alleged conduct of the

accused. Generally, the dates and times are irrelevant to the preparation of the

defense. Id., citing State v. Gingell, 7 Ohio App.3d 364, 367, 455 N.E.2d 1066 (1st

Dist.1982). Regardless, if the state possesses specific dates and times of events, it

must be provided through discovery, and when requested, through the bill of

particulars. Id.

Where, as here, a defendant seeks reversal of his convictions based on

an insufficient bill of particulars, he must show that his lack of knowledge of facts

that should have been included in a bill of particulars prejudiced him from properly defending himself. State v. Yerena, 6th Dist. Ottawa No. OT-15-049, 2016-Ohio-

7635, ¶ 11, citing State v. Chinn, 85 Ohio St.3d 548, 569, 709 N.E.2d 1166 (1999).

In this case, the indictment itself provided details of Bouyer’s alleged

conduct, for instance specifying under the clothes versus over the clothes. Counts

1, 2, 3, 5, 10, 15, 16, 18, 19, and 20 contained such additional information. The

remaining charges tracked the language of the applicable statutes.

The state filed three bills of particulars in response to Bouyer’s

motions. The first bill of particulars, filed January 27, 2020, tracked the indictment

in its language and added addresses where the offenses occurred.

On July 1, 2020, the state attached a bill of particulars to a

supplemental discovery response. In it, the state included information that Count

3, attempted rape, occurred “before summer 2016”; Counts 7-9, rape, kidnapping,

and sexual battery “victim disclosed August 2017 as one date”; Counts 10-12, rape

kidnapping, sexual battery, “child specifically mentioned February 2018 per police

report.”

The state filed a subsequent supplemental discovery response on

July 10, 2020, with an attached bill of particulars. In it, the state clarified that

Counts 3-6 included similar incidents that occurred before the summer 2016, during

the summer 2016, and after the summer 2016; Counts 7-9 occurred after school

started, around August 2017; Counts 10-12, “victim believes it occurred in this

period and told her boyfriend about it in February 2018”; Count 13, “in the new house,” i.e., Parkridge; Count 14, “old house,” i.e., Gramatan; Count 18, “on skin”;

and Count 19, “on clothing.”

The defense subsequently filed another motion for bill of particulars

and requested the exclusion of other acts evidence on August 23, 2021. The state

responded, opposing the motion, on September 10, 2021, and summarized the

counts as follows:

Counts 1 – 12 and Counts 14-17

Location: Gramatan Avenue House

Indictment and/or BOP and/or discovery has provided specificity as to the

offenses alleged in Counts 1, 2, 3, 5, 7, 10, 15, 16

Count 4: Alternative to Count 3, 5

Count 6: Pairs with Counts 3, 4, 5

Count 8: Pairs with Count 7

Count 9: Alternative to Count 7

Count 11: Pairs with Count 10

Count 12: Alternative to Count 10 (offense: fellatio)

Count 14: Additional specificity: comments made by defendant such as how he cannot wait until [J.D.] is 16 and can have sex, conversations about sex, conversation about victim doing things sexually with her boyfriend, and then with him (this information provided via discovery)

Count 17: Defendant would text [M.B.] that she should meet him in the shower and give him a hand job or suck him for money. Defendant would text her in old house too. When they moved he started again with such texts as “You make me hard. You make me horny.” (this information is included in the discovery already provided.) [Note]: [J.D. and T.W.] have reported similar comments and this information is in grand jury transcript provided by the court (10/15/2019, p. 4, 9) as well as in police reports.

Count 13 and Counts 18-21

Location: Parkridge address

Count 13: Asks victim to perform fellatio; victim refuses

Counts 18, Indictment and BOP each provide specificity to 19, 20: differentiate the offenses (on skin, over clothes)

Count 21: Victim described defendant showing her a picture or video involving two adult females and one adult male engaged in sexual conduct. One female was licking the other female while a penis is in the female’s mouth.

This court has noted that in cases where the allegations involve sexual

misconduct with a child, “precise times and dates of the alleged offense or offenses

oftentimes cannot be determined with specificity.” State v. Hemphill, 8th Dist.

Cuyahoga No. 85431, 2005-Ohio-3726, ¶ 54. Nevertheless, we must balance this

reality with the defendant’s Sixth Amendment right to know the nature and cause of

an action, including information concerning all the elements of the offenses charged.

Id. at ¶ 55. In addition, the indictment should provide enough information for the

trial court to determine whether the evidence presented is sufficient to support a

conviction. Id., citing United States v. Landham, 251 F.3d 1072 (6th Cir. 2000).

In the instant case, with the exception of T.W. who was able to identify

an incident that happened at her sweet 16 birthday party, the state was limited to

the information its young victims were able to provide. The record reflects that the state narrowed the time frames as much as possible. Bouyer, however, argues that

it was inadequate.

Bouyer cites to Hemphill in support of his argument that the state did

not provide sufficient specificity in its indictment and its subsequent bills of

particulars. However, Hemphill and the line of cases cited in it, are distinguishable

from the facts of this case. In Hemphill, the defendant was charged with 33 counts

each of rape, kidnapping, and gross sexual imposition for a total of 99 counts.

Ultimately, the victim provided vague testimony indicating that she was assaulted

“at least” 33 times. The court of appeals overturned the majority of the convictions

noting, “Although we can appreciate the difficulty of prosecuting a case involving a

reticent victim who appears to be unsupported by her family, this cannot lessen the

state’s burden of proof as to each individual offense.” The court found that it could

not accept the “numerical estimate” of offenses when it was unconnected to

individual, distinguishable incidents of criminal conduct.

In the instant case, the state gave Bouyer information about all the

allegations the victims made against him. However, the state did not indict all the

incidents. From our review of the record, the state’s indictment included the charges

on which they were able to obtain the most information. Except for T.W., none of

the victims stated the exact date the incidents occurred. The bills of particulars

provided reference points to when the incidents happened. At trial, the state

addressed the victims to: (1) prevent testimony on acts not included in the

indictment, and (2) focus on the specific incident and when it likely happened. There was no evidence that the state possessed specific dates or times that incidents

occurred, or that specific dates were discernable, given the nature of Bouyer’s

alleged conduct.

Furthermore, Bouyer focuses in his brief on how the bills of

particulars were confusing but does not establish how he was prejudiced by them

beyond general allegations that he was prevented from mounting a defense.

Nowhere in his brief does he establish that “lack of knowledge concerning specific

facts a bill of particulars would have provided him actually prejudiced him in his

ability to fairly defend himself.” Chinn, 85 Ohio St.3d at 569, 709 N.E.2d 1166. The

only incident during the course of the trial that was of concern occurred with respect

to Counts 3-6. These counts addressed the same conduct; however, the bill of

particulars indicated the time frame was either before the summer 2016, during the

summer 2016 or after the summer 2016, three separate incidents. An earlier bill of

particulars selected the first incident, which was prior to the summer 2016. At trial,

the state acknowledged that it could not proceed on all three and elected the first

incident, the one that occurred prior to the summer 2016. J.D. only testified

regarding that incident.

Nevertheless, Bouyer has not demonstrated how his defense would

have changed had he known that information earlier. In order to be entitled to a

reversal of his convictions, Bouyer must establish that he was prejudiced by

information he should have received in a bill of particulars. Yerena, 6th Dist. Ottawa

No. OT-15-049, 2016-Ohio-7635, ¶ 11, citing Chinn at 569. He has failed to do so. Bouyer’s defense centered on his denial of the allegations. He also

suggested that the victims were lying: J.D. and M.B. in order to live with less strict

parents and T.W. for reasons that were not made clear on the record. A defendant’s

due process rights are not violated when he is convicted of a multicount indictment

where he “denied any sexual contact whatsoever with the victims and, therefore, the

lack of specificity in the indictments as to specific dates or place of the alleged abuse

did not result in prejudice to the defendants’ defense.” State v. Czech, 8th Dist.

Cuyahoga No. 100900, 2015-Ohio-1536, ¶ 21. See also State v. Yaacov, 8th Dist.

Cuyahoga No. 86674, 2006-Ohio-5321; State v. Ford, 8th Dist. Cuyahoga No.

88236, 2007-Ohio-2645. Absent a showing of prejudice, Bouyer has failed to

establish that any fault with the bills of particulars warrant reversal of his

convictions.

Finally, Bouyer argues that the bill of particulars did not provide

sufficient information on the sexual motivation or sexually violent predator

specifications. A “sexual motivation” means “a purpose to gratify the sexual needs

or desires of the offender.” R.C. 2971.01(J). A “sexually violent predator” is

someone who “commits a sexually violent offense and is likely to engage in the future

in one or more sexually violent offenses.” R.C. 2971.01(H)(1). A “violent sex offense”

includes “a violation of section 2907.02, 2907.03, 2907.12 or of division (A)(4) or

(B) of section 2907.05 of Revised Code” or an attempt to commit or complicity in

committing one those offenses. R.C. 2971.01(L)(1) and (3). A person is likely to

engage in the future in one or more sexually violent offenses if “[a]vailable information or evidence suggests that the person chronically commits offenses with

a sexual motivation.” R.C. 2971.01(H)(2)(c).

While the state’s bills of particulars did not directly address the sexual

motivation specifications or the sexually violent predator specifications, it detailed

the conduct, the number of victims, and multiple sex-based offenses against minors.

Bouyer was accused of rape, attempted rape, sexual battery, and gross sexual

imposition under R.C. 2907.05(A)(4), all violent sexual offenses by definition. R.C.

2971.01(L)(1) and (3). Each of the three kidnapping charges with sexual motivation

specifications were attached to the allegations of sexual assault. The state provided

sufficient information to allow Bouyer to discern the nature of the conduct he was

accused of committing.

Additionally, Bouyer has again failed to establish that he was

prejudiced or what facts missing from a bill of particulars prejudiced his defense.

Accordingly, the first assignment of error is overruled.

Mistrial Based on the Erroneous Admission of Evidence

In the second assignment of error, Bouyer alleges that he was denied

the right to a fair trial when the trial court failed to declare a mistrial after the state

played a video interview with M.B. in open court before the jury. The state played

the video early in the trial; however, the trial court did not rule it inadmissible until

after the state rested its case. Specifically, Bouyer alleges that the interview

contained testimony that constituted improper hearsay; bolstering; victim-impact;

and impermissible Evid.R. 404(B) evidence. Standard of Review

The decision to grant or deny a motion for mistrial lies within the

sound discretion of the trial court. State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d

623 (1995). Furthermore, a trial court holds broad discretion when deciding

whether to admit or exclude evidence. State v. Sage, 31 Ohio St.3d 173, 182, 510

N.E.2d 343 (1987). An appellate court will not disturb such “exercise of discretion

absent a showing that the accused has suffered material prejudice.” State v. Miller,

8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 36, citing Sage at 182. An abuse

of discretion occurs when a trial court’s decision is “unreasonable, arbitrary, or

unconscionable.” State v. Hill, Slip Opinion No. 2022-Ohio-4544, ¶ 9,

citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A

mistrial should only be granted when “the ends of justice so require and a fair trial

is no longer possible.” Id., citing State v. Franklin, 62 Ohio St.3d 118, 127, 580

N.E.2d 1 (1991).

A mistrial based on erroneously admitted evidence is appropriate

when that evidence is “of an exceptionally prejudicial character such that its

withdrawal from consideration by the jury cannot be expected to remove the harm.”

State v. Marshall, 2014-Ohio-4677, 22 N.E.3d 207, ¶ 29 (8th Dist.), quoting United

States v. Carr, 5 F.3d 986, 993 (6th Cir.1993).

Here, the state argued that M.B.’s interview was entirely admissible,

while the defense argued that it was inadmissible and highly prejudicial.

Additionally, throughout the case, the defense attempted to limit the testimony to only address the specific acts the state had charged. Nevertheless, the defense did

not object to the admission of other acts testimony when it first objected to the video.

They did not raise other acts until after the video finished playing. The trial court

elected to wait until M.B. testified before ruling on the defense motion. Upon

learning that Det. Saffo relied on the videotaped interview and never spoke to M.B.

and after hearing M.B.’s testimony, the trial court found the video inadmissible and

noted that it contained other acts evidence. However, the trial court denied the

defense’s motion for a mistrial finding that the evidence was not prejudicial enough

to warrant that remedy. Finally, the trial court administered a curative instruction.

A curative instruction is generally an effective way to remedy any

errors or irregularities that occur during trial. State v. Williams, 8th Dist. Cuyahoga

No. 94242, 2010-Ohio-5484, ¶ 21 citing State v. Zuern, 32 Ohio St.3d 56, 61, 512

N.E.2d 585 (1987). “A jury is presumed to follow the instructions, including curative

instructions, given it by a trial judge.” Id., citing State v. Henderson, 39 Ohio St.3d

24, 33, 528 N.E.2d 1237 (1988).

Hanrahan’s conversation with M.B. was the first interview with M.B.

on these charges. Accordingly, it was wide ranging and included background

information regarding the family dynamics. M.B. disclosed multiple incidents of

solicitation for sex, alleging that Bouyer would text her daily and that it lasted 3-4

months. She also disclosed that Bouyer touched her inappropriately multiple times,

the most recent being the weekend before the interview. M.B. also told Hanrahan that she believed J.D. She didn’t want to believe Bouyer had raped J.D., but

otherwise she didn’t doubt J.D.

The defense had an opportunity to cross-examine M.B. addressing the

fact that she chafed at the restrictions in Bouyer’s home. The defense was also able

to elicit testimony that M.B. wanted to move in with her mother but Bouyer would

not let her. Similarly, while M.B. indicated in her interview that she believed J.D.,

she also indicated that she did not know the details of the allegations.

Given the foregoing, we agree with the trial court that, although it was

error to allow the jury to see M.B.’s interview, it did not warrant a mistrial.

Accordingly, the trial court did not abuse its discretion when it allowed the video to

be viewed nor when it denied the defense motion for mistrial.

Verdict Forms

In the third assignment of error, Bouyer argues that the verdict forms

for Counts 4-6, 8-9, and 11-12 were “so confusing as to arise to the level of plain

error.” Bouyer suggests the remedy is that this court vacate those counts.

Standard of Review

Neither the state nor the defense raised any concern to the trial court

about the verdict forms. Accordingly, we may only act if there was plain error. Plain

error requires a showing that (a) there was an error; (b) the error was plain, i.e.,

obvious; and (c) but for the error the outcome of the proceeding would have been

the opposite of what occurred; and finally, (d) reversal is necessary to correct a

manifest miscarriage of justice. State v. Johnson, 8th Dist. Cuyahoga No. 110904, 2022-Ohio-2136, ¶ 8. Plain error should be used “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

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

“‘If taken in their entirety, the instructions fairly and correctly state

the law applicable to the evidence presented at trial, reversible error will not be

found merely on the possibility that the jury may have been misled.’” State v. Smith,

3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 28, quoting State v. Tvaroch, 2012-

Ohio-5836, 982 N.E.2d 751, ¶ 21 (11th Dist). Rather, “‘misstatements and ambiguity

in a portion of the instructions’ only give rise to a reversal where the instructions are

so misleading that they prejudicially affect a substantial right of the complaining

party.’” Id., citing State v. Haller, 3d Dist. Allen No. 1-11-34, 2012 Ohio 5233, ¶ 43,

quoting State v. Farr, 3d Dist. Seneca No. 13-06-16, 2007-Ohio-3136, ¶ 14.

Analysis

Specifically, Bouyer argues that by referring to other counts, the trial

court asked the jury to make findings on multiple counts when determining Bouyer’s

guilt on a single count. We disagree. A review of the jury instructions helps clarify

the issue. For example, for Count 4, the instruction notified the jury that before they

could find Bouyer guilty of sexual battery, they had to find beyond a reasonable

doubt that between the dates on the indictment in Cuyahoga County, Ohio, Bouyer

engaged in sexual conduct, “to wit: vaginal penetration (See Count 3) with J.D. not

his spouse, DOB 12/23 2004.” Based on our review of the jury instructions, we find that the trial

court did not instruct the jury to make a finding on Count 3 to evaluate Count 4. We

make a similar finding for the remaining verdict forms challenged by the defense.

The court merely referred the jury to the conduct alleged in the other counts as a

reference. We disagree with the defense that the instructions were so confusing as

to amount to plain error.

Furthermore, the jury did not express any confusion regarding the

verdict forms. During deliberations, they posed two questions. First, the jury

believed they needed an additional verdict form for the age of the victim in Counts

1, 2, and 5. The trial court responded that they should review the jury instructions

and that they had received all the necessary forms. Second, the jury asked to see a

section of the state’s closing argument PowerPoint presentation regarding Count 19.

The court responded that the jury had everything it needed to reach its verdict.

Accordingly, the verdict forms were not so confusing as to require a

finding of plain error. The third assignment of error is therefore overruled.

Victim-Impact Testimony

In the fourth assignment of error, Bouyer argues that he was deprived

a fair trial due to the admission of improper victim-impact testimony. Bouyer

alleges that the introduction of this testimony was plain error. Specifically, Bouyer

objects to testimony regarding J.D.’s deteriorating relationship with N.B., her

mother, including her inability to see her new sibling or her dogs and her history of

self-harm. Her family members were also permitted to testify about incidents of self-harm, and her father Manny testified to her change in demeanor. Bouyer also

points to portions of M.B.’s interview. In it, M.B. discussed incidents of self-harm,

lack of appetite, failing in school, and skipping practices, as well as Bouyer’s reaction

to these incidents.

Plain error review has previously been described. Plain error should

be used “with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” Barnes, 94 Ohio St.3d at 27, 759 N.E.2d

1240.

Victim-impact testimony is an issue of relevancy. The impact of the

crime on the victim is not a relevant fact, i.e., evidence having a “tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable than it would be without the evidence.” Evid.R. 401. Such testimony

is usually irrelevant because it is immaterial to guilt or innocence and has a tendency

to inflame the passion of the jury. State v. Eisermann, 8th Dist. Cuyahoga No.

100967, 2015-Ohio-591, ¶ 36. However, victim-impact evidence that “depicts both

the circumstances surrounding the commission of the [offense] and also the impact

of the [offense] on the victim’s family may be admissible during both the guilt and

the sentencing phases.” Id., quoting State v. Fautenberry, 72 Ohio St.3d 435, 440,

650 N.E.2d 878 (1995) (referring to a homicide). Victim-impact evidence admitted

in error “does not constitute reversible error unless the defendant shows there is

some reasonable probability that the outcome would have been different.” State v.

Freeman, 8th Dist. Cuyahoga No. 92809, 2010-Ohio-3714, ¶ 45, citing State v. Sova, 8th Dist. Cuyahoga Nos. 71923 and 71924, 1998 Ohio App. LEXIS 1512 (Apr. 9,

1998).

A good portion of the testimony from J.D. were Instagram and text

messages between J.D. and her mother that were read into the record and then

admitted as exhibits at the close of the state’s case without objection (state’s exhibits

Nos. 4 and 5). In the messages, J.D. discussed how she felt about her mother’s lack

of support after she disclosed the sexual abuse. Additionally, B.D., K.D., and J.W.

testified about incidents of self-harm. These three witnesses testified about self-

harm in relation to J.D. disclosing the abuse. Finally, Manny testified that after

filing the police report, J.D. would stay in her room all the time. It was hard for him

to get her to come out. J.D. just wanted to lie in bed.

Looking at the references to self-harm from J.D.’s family members, we

find that their introduction was not an error. The information came to light during

the testimony of the witnesses to whom J.D. disclosed her abuse. In trying to find

out why J.D. was upset, K.D. learned J.D. was cutting herself. K.D.’s intuition told

her that something else was going on, and when she asked, J.D. disclosed the abuse.

As introduced, the evidence of self-harm was connected to the commission of the

offense and the impact on the victim; therefore it was not introduced in error, a

prerequisite to a finding of plain error. As the three family witnesses who testified

about self-harm all participated in the disclosure of the abuse, it was not plain error

for the trial court to allow the testimony. Manny’s testimony regarding J.D.’s behavior after she filed the police

report was arguably irrelevant victim-impact testimony. However, there is no

reasonable possibility that the admission of this testimony changed the outcome of

the trial. J.D. isolating herself was not the type of testimony that would inflame the

jury’s passion such that the jury would ignore the other evidence to make a finding

of guilt. This testimony was harmless beyond a reasonable doubt.

Finally, the text messages between J.D. and her mother, N.B.,

consisted almost entirely of a discussion about how J.D. felt about her mother’s

reaction and actions after J.D. disclosed her allegations. She discussed in detail how

she felt as well as her reasons for not disclosing to anyone. As the state pointed out,

the defense put the victims’ credibility in issue during their opening statement.

The defense suggested that it was incredible that neither J.D. nor M.B.

disclosed the abuse to their therapist and that none of the girls showed signs of

distress or acted out in any way that raised concern for a mandatory reporter.

Furthermore, the defense stated that there was “not one witness” who could back up

the victims’ claims, that there was no medical or scientific evidence of the crimes,

and that the victims never utilized cell phone cameras or video to back up their

allegations. These statements directly challenged the credibility of the victims.

When the defense attacks a victim’s credibility in the opening

statement, they create grounds for the state to introduce a prior consistent

statement, i.e., a statement consistent with the declarant’s testimony offered “to

rebut an express or implied charge against declarant of recent fabrication or improper influence or motive.” Evid.R. 801(D)(1)(b). The text messages introduced

by the state served to rebut a charge that J.D. made these accusations based on some

improper motive. Accordingly, the statements were admissible, no error occurred,

and the defense failed to establish their admission was plain error.

Turning to M.B.’s interview, we have already determined that it was

an error for the video to be shown to the jury. However, the trial court’s curative

instruction and refusal to admit the video into evidence or allow the jury to have it

during deliberations cured that error. Nevertheless, we will review the video for this

assignment of error. A review of the video challenges the position that M.B.’s

comments were victim-impact statements. At the beginning of the interview,

Hanrahan asked M.B. about school. M.B. relayed she was in the tenth grade and

that she had pretty good grades. However, her grades had started slipping the

previous quarter, and she was failing all her classes. M.B. quit cheerleading and

improved her grades. In the video, M.B. is smiling and seems quite proud of herself

for improving her grades. She never disclosed what caused her grades to slip, other

than to say she was going through some things.

In response to questions about how she came to live with her father,

M.B. relayed that there was a custody case. After that, M.B. saw her mother on the

weekends. At some point, visits stopped. M.B. relayed that Bouyer told her that he

had obtained full custody. When asked when she last saw her mother, M.B. stated

her mother would come to her school. When asked why, M.B. stated that she had not been eating and that her mother would bring her food to the school. M.B. did

not relay why she was not eating.

Later in the interview, Hanrahan asked M.B. what prompted her to go

to the police the previous day. M.B. went into a wide-ranging discussion starting

with her father punishing her for having a phone. That conversation led to M.B.

discussing all of the reasons she wanted to move in with her mother, including the

fact that she did not get along with her stepmother, N.B. M.B. did not think N.B.

was a good person. M.B. did not like how her stepmother addressed her struggles

with school. As an example of why she did not care for N.B., M.B. explained that

when N.B. learned M.B. was self-harming, N.B. made fun of her. M.B. then relayed

that Bouyer yelled at her and punished her for self-harm. M.B. never said she

harmed herself as a result of Bouyer’s actions. Furthermore, M.B. noted that at the

time of the interview, she had addressed the issue and no longer cut herself.

These statements established background and addressed the

circumstances M.B. was living in around the time that she made her accusations. At

no time did M.B. indicate her actions were a result of Bouyer’s criminal conduct.

Accordingly, the fourth assignment of error is overruled.

Record Used to Refresh Recollection

In the fifth assignment of error, Bouyer argues that it was error for the

state to refresh N.B.’s recollection on the record in front of the jury. The defense

called N.B. as its sole witness. During cross-examination, the state questioned N.B.

extensively regarding conversations between herself and Bouyer while he was in custody. Those conversations were recorded as per the jail’s policy. The state was

permitted to refresh N.B.’s recollection of certain calls by playing the recordings in

open court before the jury. Although the defense objected that the state had not

authenticated the calls, they did not object to the state refreshing the witness’s

recollection in open court on the record. Accordingly, as the defense notes in its

brief, we review this issue for plain error, i.e., whether there was an error, that was

obvious; which, but for the error, the result of the proceedings would have been

opposite of what occurred and that reversal is necessary to correct a manifest

miscarriage of justice. Johnson, 8th Dist. Cuyahoga No. 110904, 2022-Ohio-2136,

¶ 8.

Here it was clearly error for the state to refresh N.B.’s recollection in

open court in front of the jury. An attorney refreshes a witness’s recollection, after

establishing that they do not remember a statement, by showing the witness the

statement, and then allowing the witness to testify from “his present independent

knowledge.” State v. Harris, 8th Dist. Cuyahoga No. 110982, 2022-Ohio-4630,

¶ 33, citing State v. Scott, 31 Ohio St.2d 1, 285 N.E.2d 344 (1972). “The testimony

of the witness is the evidence; the out-of-court statement is not placed before the

jury.” Id., citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d

865, ¶ 57; see also Evid.R. 612. The trial court’s decision was contrary to law when

it allowed the state to play the recordings in open court to refresh the witness’s

recollection. See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187

N.E.3d 463, ¶ 37. Nevertheless, although there was an error, Bouyer needs to establish

that but for the error the outcome of the proceedings would have been different. In

the instant case, the state sought to introduce conversations between N.B. and

Bouyer that contradicted her testimony on direct examination that she was neutral

and had not taken a side in the situation between Bouyer and J.D. On the witness

stand, N.B. explained the reasons for her statements. Nevertheless, the most salient

point of N.B.’s testimony was that T.W.’s testimony was inaccurate because Bouyer

was not living with her in the summer 2011. However, both T.W. and J.D.

contradicted that assertion. The recordings were not the only evidence that called

into question N.B.’s truthfulness on the stand. Given the foregoing, we cannot say

that the outcome of the trial would have been different if the objectionable

statements had not been played for the jury.

Accordingly, the fifth assignment of error is overruled.

Bolstering the Victim’s Testimony

In the sixth assignment of error, Bouyer argues that he was denied a

right to a fair trial when witnesses were permitted to testify about their belief in the

truthfulness of the victim.

The determination of the veracity of a witness is the province of the

trier of fact, not an expert or lay witness. State v. Preston, 8th Dist. Cuyahoga No.

109572, 2021-Ohio-2278, ¶ 65. “Opinion testimony regarding another witness’s

credibility ‘infringe[s] upon the role of the fact finder, who is charged with making

determinations of veracity and credibility.’” Id., quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988). Such evidence is inadmissible. Id. However,

the rule only applies to testimony that directly supports the veracity of the victim.

State v. Denson, 1st Dist. Hamilton No. C-220208, 2023-Ohio-847, ¶ 2, citing State

v. Cashin, 10th Dist. Franklin No. CA2008-11-138, 2009-Ohio-6419, ¶ 20.

“[I]ndirect bolstering of a victim’s credibility is not the same as the direct rendering

of an opinion as to a victim’s veracity.” Id.

We have already addressed M.B.’s videotaped interview and will not

do so again. It was not introduced into evidence, and we presume that the jury

followed the trial court’s instruction not to consider it. Accordingly, we turn to the

other testimony that Bouyer claims was improper. Bouyer takes issue with the

testimony of J.D.’s family members and her ex-boyfriend and argues that it was an

error for those witnesses to testify about J.D.’s disclosures of her abuse. However,

none of these witnesses testified that, in their opinion, J.D. was being truthful; they

simply relayed their version of what happened when J.D. disclosed the abuse to

them. Although this testimony served to indirectly bolster J.D.’s credibility, none of

it directly supported her veracity. Additionally, because Bouyer did not object to

these statements, he must establish that their admission was plain error, i.e., that

there was an error that affected the outcome of the trial. He has failed to do so.

Finally, Bouyer argues that text messages from M.B. to J.D. in which

she stated she believed her were inadmissible. Similarly, M.B. testified that she

believed J.D. In the text messages to J.D., M.B. repeatedly told J.D. that she believed

her and that she was sorry for not saying anything earlier. J.D. was initially suspicious and asked M.B. why she believed her now. M.B. disclosed that she always

believed J.D. and then told her some of the things Bouyer had done to her.

During her testimony, M.B. was questioned as follows:

State: To this day, do you know what [J.D.] has said happened to her?

M.B.: No.

State: What were your thoughts when [J.D.] disclosed and this stuff was happening to you?

M.B. I didn’t know what to believe because I ain’t know what was happening to her. And I believed some stuff because I knew it was happening to me.

The fact that M.B. believed J.D. was irrelevant and inadmissible.

However, again, Bouyer has failed to establish that but for this error the outcome of

the trial would have been different under plain error review.

Accordingly, the sixth assignment of error is overruled.

Sufficiency of the Evidence for Count 4: Sexual Battery

In the seventh assignment of error, Bouyer argues that there was

insufficient evidence to support the conviction for sexual battery of J.D. under Count

4. Specifically, Bouyer alleges that there was insufficient evidence of penetration as

required to establish sexual battery.

“A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state met its burden of production.” State

v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Sufficiency of the

evidence involves a review of the evidence admitted at trial and a determination of “‘whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.’” State v. Goins, 8th Dist. Cuyahoga

No. 109497, 2021-Ohio-1299, ¶ 13, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. We must determine, “whether,

after viewing the evidence in a light most favorable to the prosecution, any rational

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

reasonable doubt.” Id. The question is not “‘whether the state’s evidence is to be

believed, but whether, if believed, the evidence against a defendant would support a

conviction.’” Id., quoting Thompkins at 390.

In order for Bouyer to be convicted of sexual battery, the state had to

prove beyond a reasonable doubt that Bouyer did engage in sexual conduct with

J.D., DOB 12/23/2004, not his spouse, when the offender is the other person’s

natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco

parentis of the other person. R.C. 2907.03(A)(5). The only element in dispute is

whether Bouyer engaged in “sexual conduct” with J.D. The Ohio Revised Code

defines “sexual conduct” as “vaginal intercourse between a male and female; anal

intercourse, fellatio, and cunnilingus between persons regardless of sex; and,

without privilege to do so, the insertion, however slight, of any part of the body or

any instrument, apparatus, or other object into the vaginal or anal opening of

another. Penetration, however slight, is sufficient to complete vaginal or anal

intercourse.” R.C. 2907.01(A). When asked about this incident, J.D. testified as follows:

J.D. I forgot what the conversation was or how it lead [sic] up to it, but I ended up laying down and he ended up going to his dresser and grabbing a condom. And he told me to pull my pants down, and he pulled his pants down to his knees, and he put the condom on and he pressed his penis against my vagina.

***

State: When you say his penis was pushed into your vagina, was the outside of his penis against the skin of your vagina?

J.D.: Yes.

State: Okay. What do you feel?

J.D.: Pain, pressure.

State: What ─ do you tell him anything?

J.D.: I told him to stop because it hurt.

State: And what did he say?

J.D.: He stopped.

Bouyer argues that this testimony was insufficient to establish

penetration, and therefore, the conviction on Count 4 should be overturned.

However, the case law in this jurisdiction and others fails to support this argument.

In a similar case, this court found that the evidence was sufficient to find penetration

where an eight-year-old victim testified that the defendant tried to put his penis into

her vagina but could not because the victim would close her legs, allowing him access

only to the outer part of her vagina. This court noted:

The law is contrary to appellant’s argument that he did not have vaginal intercourse because he did not penetrate the victim when he placed his penis on the outside of the victim’s vagina. This court, as well as others, have consistently held that evidence of slight penetration, entering the vulva or labia, is sufficient to support a rape conviction. State v. Blankenship, 8th Dist. Cuyahoga No. 77900, 2001 Ohio App. LEXIS 5520 (Dec. 13, 2001); see e.g., State v. Nivens, 10th Dist. Franklin No. 95 APA09-1236, 1996 Ohio App. LEXIS 2245 (May 28, 1996); State v. Carpenter, 60 Ohio App.3d 104, 105, 573 N.E.2d 1206 (5th Dist. 1989). * * *. Here, there was sufficient evidence that could lead a rational trier of fact to conclude that appellant penetrated the victim by placing his penis on the outside of the victim’s vagina.

State v. Falkenstein, 8th Dist. Cuyahoga No. 83316, 2004-Ohio-2561, ¶ 16

Accordingly, there was sufficient evidence presented for a jury to find

Bouyer guilty of sexual battery beyond a reasonable doubt. The seventh assignment

of error is therefore overruled.

Sexually Violent Predator Specification Hearing

Finally, in the eighth assignment of error, Bouyer argues that it was

error for the trial court to find him guilty of a sexually violent predator specification

where it failed to hold a hearing on the matter and the state failed to present any

evidence to support the finding.

After polling the jury as to their verdict on the underlying counts, the

court noted:

At the time the defense renewed their Rule 29 motion I did hold that renewed motion in abeyance. That motion is denied based on the evidence presented in this trial, and I’m prepared to issue a verdict on the sexually violent predator specifications.

Mr. Bouyer waived the specifications found in Counts 1 through 14 – 1 through 12. At this time, I am making a finding of guilt on all 12 sexually violent predator specifications.

The defense did not object when the trial court immediately

announced its verdict on the sexually violent predator specifications, nor did they request that the trial court conduct a hearing. Furthermore, the defense has not

argued in its brief before this court that the trial court’s actions amounted to plain

error entitling Bouyer to a reversal of those convictions.

Where an appellant fails to object before the trial court, waiving all

but plain error, and fails to raise plain error on appeal, this court is not required to

address the assigned error. State v. Body, 8th Dist. Cuyahoga No. 109388, 2021-

Ohio-703, ¶ 23.

Accordingly, the eighth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____ EMANUELLA D. GROVES, JUDGE

ANITA LASTER MAYS, A.J., and MARY EILEEN KILBANE, J., CONCUR