State v. Bradley

2010 Ohio 5422

• Court: Ohio Court of Appeals
• Decided: November 9, 2010
• Docket: 15-10-03
• Status: Published

Opinion

[Cite as State v. Bradley, 2010-Ohio-5422.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO, CASE NO. 15-10-03

PLAINTIFF-APPELLEE,

v.

GREGORY BRADLEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Trial Court No. CR 09-03-038

Judgment Affirmed

Date of Decision: November 9, 2010

APPEARANCES:

Scott R. Gordon, for Appellant

Eva J. Yarger, for Appellee Case No. 15-10-03

Rogers, J.

{¶1} Defendant-Appellant, Gregory Bradley, appeals from the judgment

of the Court of Common Pleas of Van Wert County convicting him of one count

each of rape and gross sexual imposition, sentencing him to an indefinite prison

term of fifteen years to life, and classifying him as a Tier III Sex Offender. On

appeal, Bradley argues that the trial court erred in admitting hearsay statements at

trial under both the excited utterance exception pursuant to Evid.R. 803(2), and the

medical diagnosis or treatment exception pursuant to Evid.R. 803(4); that his

conviction for gross sexual imposition was unsupported by sufficient evidence and

that both convictions were against the manifest weight of the evidence; that he was

denied the effective assistance of counsel; that the trial court erred in convicting

him of both rape and gross sexual imposition where the offenses are allied

offenses of similar import; and, that he was denied his right to a fair trial due to

cumulative errors committed by the trial court and his trial counsel. Based on the

following, we affirm the judgment of the trial court.

{¶2} In March 2009, Bradley was indicted by the Van Wert County

Grand Jury on one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of

the first degree; one count of gross sexual imposition in violation of R.C.

2907.05(A)(4), a felony of the third degree; one count of pandering sexually

oriented matter involving a minor in violation of R.C. 2907.322(A)(5), a felony of

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the fourth degree; and, one count of illegal use of a minor in nudity-oriented

material or performance in violation of R.C. 2907.323(A)(3), a felony of the fifth

degree. The indictment arose from allegations by Bradley’s daughter, B.B., that

he engaged in improper sexual activities with her, including placing his finger in

her anus. Bradley entered a not guilty plea to all counts in the indictment.

{¶3} In April 2009, pursuant to Bradley’s motion, the trial court separated

the trials, with the rape and gross sexual imposition counts to be tried separately

from the counts on pandering sexually oriented matter involving a minor and

illegal use of a minor in nudity-oriented material or performance.

{¶4} Subsequently, the State filed a notice of its intent to use several

hearsay statements pursuant to Evid.R. 807 made by B.B. to her mother,

grandfather, and the Van Wert County Department of Job and Family Services

(“JFS”) regarding Bradley’s sexual abuse.

{¶5} In May 2009, the trial court held a hearing on the State’s request to

use B.B.’s hearsay statements, at which Shelly Bradley1 testified on direct

examination that Bradley was her husband; that they have two children together,

B.B., who was five years of age, and K.B., who was two years of age; that, in

November 2008, she and Bradley had an argument in which Bradley walked out of

the house; that he left the residence around 6:00 or 6:30 p.m., and around 7:00

p.m. B.B. began jumping up and down on the couch and saying that “she was glad 1 We note that Bradley’s name was spelled both as “Shelley” and “Shelly” throughout different filings in the record, and we are unsure of which spelling is correct. Accordingly, we elect to spell it as “Shelly.”

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that daddy was gone so he can’t hurt her no more” (motion hearing tr., p. 14); that

she behaved in this manner approximately a half an hour after Bradley left; that

she sat B.B. down on the couch and asked her to explain what she meant, and she

stated that “her dad was touching her in her places, in her private spots, like her

butt. She called it her butt and then she said that he would leave [sic] her play

with a ‘flipper’” (id.); that a “flipper” meant his penis; that she called her father,

Allen Shinnaberry, to come to the house and talk to B.B.; that he arrived

approximately a half an hour after she called him; that, subsequently, B.B. was

“clinging to [her] and she was bawling a lot” (id. at p. 20); that B.B. also had

diarrhea and was vomiting that night; and, that she had never caught B.B. lying to

her.

{¶6} On cross-examination, Shelly testified that B.B. had separation

issues in the past and did not like to leave her presence; that it was not unusual for

B.B. to jump up and down on the furniture; that, although B.B. was initially happy

upon Bradley’s departure, B.B. began crying after she started talking to her; that

she does not speak with B.B. about her privates and had never told B.B. that a

penis was a “flipper”; that B.B. began jumping up and down almost immediately

after Bradley left the residence; and, that her father spoke with B.B. approximately

one hour after B.B. began reacting to Bradley’s departure.

{¶7} Allen Shinnaberry testified on direct examination that he was

Shelly’s father; that, on November 1, 2008, he received a call from Shelly

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notifying him that Bradley had left the residence; that, a short time later, he

received a call from his wife, who told him that there were some issues with B.B.;

that he subsequently went to Shelly’s house to speak with B.B.; that he left at 7:00

p.m. to go to the residence and went directly there; that, when he arrived, B.B. was

acting “different,” both “scared and happy” (id. at p. 39); that B.B. told him that

she was happy that her father had left; that, he began speaking with B.B., and she

indicated to him that “daddy stuck his finger up [her] butt” (id. at p. 40); that B.B.

also stated that “I got more grandpa. There are more bad things that dad done, that

daddy done” (id.); that B.B. wanted to tell him more, but he told her to not discuss

it because she needed to go to the police station; that, up to that point, he thought

B.B. had a good relationship with Bradley; that B.B. had never discussed with him

any other inappropriate contact by Bradley; that, in his opinion, B.B. would not

have made up a story to get rid of Bradley; that, later in the evening, B.B. had

vomiting and diarrhea, and she was “horrified, horrified of her dad. Horrified of

the house. Horrified of, you know, anything” (id. at p. 45); and, that he has never

discussed with B.B. any names for body parts or any sexual acts dealing with

them.

{¶8} On cross-examination, Shinnaberry testified that, when he arrived at

Shelly’s residence, he did not speak with Shelly about what B.B. had said; that he

was at the residence for approximately five minutes before he took B.B. to the

police station; that, while at the police station, he mentioned to the police officer

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that B.B. said something about a “flipper” to his wife, but not to him; and, that

B.B.’s sister, K.B., also had diarrhea and vomiting around the same time as B.B.

{¶9} In May 2009, Bradley filed objections to the videotaped deposition

of Dr. Lori Vavul-Roediger, asking the trial court to delete from the hearing of the

jury hearsay testimony by Dr. Vavul-Roediger regarding Shelly’s statements to

her concerning the abuse by Bradley. Specifically, Bradley contended that these

statements did not fit the exception for statements made for purposes of medical

diagnosis or treatment pursuant to Evid.R. 803(4).

{¶10} Subsequently, Bradley also filed a motion in limine to exclude the

hearsay statements made by B.B. to her mother and Shinnaberry regarding

Bradley’s sexual abuse, arguing that the statements were not an excited utterance

under Evid.R. 803(2), and did not meet the exception for admissibility contained

under Evid.R. 807.

{¶11} On June 2, 2009, the trial court found that the hearsay statements

regarding Bradley’s sexual abuse made by B.B. to her mother and Shinnaberry

were admissible under the excited utterance exception of Evid.R. 803(2). The trial

court stated the following in its judgment entry:

Shelley Bradley

The court finds the alleged statement by the child to her mother, Shelley Bradley, are [sic] an “excited utterance” and thus admissible. * * * The alleged statement took place shortly after the Defendant left the home. According to Shelley Bradley, the conversation with the child was in response to the child jumping

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up and down on the couch shortly after the Defendant left the house. During the conversation, Shelley Bradley noted that the child was both laughing and crying, which goes to display excitement and stress of the event as required by the rule. Also, the alleged statement coupled with the child’s excitement and stressed demeanor further indicate that the statement was not a result of reflective thought, but instead a statement made as an excited utterance.

Further, the admission of a declaration as an excited utterance is not precluded by questioning which is not coercive or misleading, facilitates the declarant’s expression and does not destroy the nervous excitement. In this instance Shelley Bradley simply questioned her daughter as to why she was so excited and happy which elicited the response that she was excited that the defendant could no longer hurt her.

Allen Shinnaberry

Similar to the situation with Shelley Bradley, the alleged statements made by the child to Allen Shinnaberry are an “excited utterance” and admissible under 803(2).

The Court finds the comments made to Allen Shinnaberry were made within a relatively short period of time from the event (Gregory Bradley leaving the house). The court further finds the alleged statements by the child to Allen Shinnaberry were reactive statements and not reflective thinking. Although the statements were in response to questions specifically asked by Allen Shinnaberry, the court finds the child was still in a state of excitement, as noted by his testimony depicting her as both scared and happy, and therefore, the statements she was making were a product of an exciting event.

(June 2009 Entry and Decision on Defendant’s Motions in Limine, pp. 1-2).

{¶12} Subsequently, the trial court also denied Bradley’s objections to Dr.

Valvul-Roediger’s deposition testimony and found B.B. competent to testify.

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{¶13} On June 8 and 9, 2009, the case proceeded to trial, at which Shelly

testified on direct examination that she was married to Bradley and they had two

children together, B.B. and K.B.; that, in November 2008, she worked part-time at

Wal-Mart; that, when she would go to work, B.B. would “scream and bawl and

holler that she didn’t want [her] to leave” (trial tr., vol. 1, p. 24); that these actions

began when B.B. was approximately fifteen months old and continued to get

worse as B.B. aged; that, during this time, Bradley was not working and would

stay at home and watch the children; that, on November 1, 2008, she and Bradley

began arguing, and Bradley walked out of the house; that, after Bradley left the

residence, B.B. began jumping up and down on the couch because she was very

happy; that B.B. was very excited and “looked like she was relieved that her dad

was gone” (id. at p. 26); that she began talking with B.B., and B.B. became very

upset and started to cry; that B.B. then proceeded to tell her that Bradley “touched

her” and “stuck his finger up her butt” (id. at p. 28); that it was approximately an

hour or an hour-and-a-half from the time that Bradley left to the time that B.B.

made these statements; that, approximately four or six weeks prior to this incident,

B.B. complained of “hurting down there,” so she told Bradley that B.B. should go

to the doctor, but he said that B.B. did not need to go (id. at p. 30); that, at that

time, she observed that B.B.’s vagina was discharging white “slimy stuff,” but that

it did not appear to be red or irritated (id. at p. 31); that, on a separate occasion,

she observed B.B.’s vagina to be red and irritated; that prior to the November 2008

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incident, she and Bradley were having marital problems, and she filed for a

divorce approximately one week after the incident; that she has been diagnosed

with a learning disability and receives social security as a result; that, when she

filed for divorce, she was concerned she would not be able to obtain custody of the

children because Bradley used to tell her she was “too stupid” to have custody (id.

at p. 35); that she never discussed sex acts or any sexual things with B.B.; that,

after the November 2008 incident, B.B. attended counseling and also began acting

out sexually with other children who were present, including having boys “pull

their pants down,” and during “one event, she had them lick her.” (Id. at p. 38).

{¶14} On cross-examination, Shelly testified that she failed to mention

when testifying at a prior hearing that B.B. acted out sexually; that she took B.B.

to the doctor on prior occasions due to B.B.’s persistent screaming and crying

when she would leave; that the doctor never checked her vaginal area on these

visits; that, at some point, Bradley told her to not take B.B. to the doctor anymore

because there was nothing wrong with B.B.; that, during the November 1, 2008

incident, Bradley threw a radio across the room at her, but, during her meeting

with Dr. Roedinger2 on November 4, 2008, she stated that Bradley was pushing

her; that, later in the evening on November 1, 2008, she took B.B. to the hospital

to be examined; that, in the presence of B.B., she informed the hospital personnel

of Bradley’s sexual abuse of B.B.; that part of the reason she did not file for

2 We assume the testimony regarding the meeting with Dr. Roedinger refers to Dr. Valvul-Roedinger.

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divorce prior to the incident was she was afraid she would lose custody of her

children; that children’s services had visited her home on a previous occasion

because of a report by B.B.’s physician that B.B. was not getting fed; that she did

not question B.B. until approximately a half-hour after she began jumping on the

couch after Bradley left the house; that Bradley left the house around 6:00 p.m.,

and Shinnaberry did not arrive at the house until 7:00 p.m.; that Shinnaberry

talked to B.B. for approximately five minutes when he arrived at the house and

then took her straight to the police station; that she was not aware he did not arrive

at the police station until 8:45 p.m.; that B.B. was required to take suppositories up

until the age of six-months, and Bradley usually administered the suppositories;

and, that, during a prior hearing testimony, she did not testify to the slimy, white

substance around B.B.’s vagina.

{¶15} Shinnaberry testified that he is Shelly’s father and B.B.’s

grandfather; that, approximately 7:15 or 7:30 p.m. on November 1, 2008, he was

informed by his wife that there was a problem with Shelly and Bradley; that he

was at church at that time working at a spaghetti dinner and concert, and had to

wait to leave until everyone else left; that, after the concert, he went to Shelly’s

residence; that, upon arriving at the residence, he was greeted by Shelly, B.B., and

K.B., and B.B. seemed upset, although she was not crying; that he took B.B.

upstairs to her bedroom; that he asked B.B. if she had anything to tell him, and she

stated that Bradley placed his finger in her buttocks; that B.B. also told him “there

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[were] more bad things,” but he told her he did not want to hear about it (id. at p.

74); that when B.B. told him this, she was “scared and terrified” (id.); that he then

took B.B. to the police station to make a report of the incident; and, that, after a

police report was made, he took B.B. to the hospital in Toledo to have her

examined.

{¶16} Shinnaberry further testified that B.B. had never told him about any

previous abuse by Bradley; that he did not notice anything unusual about B.B.

prior to their conversation on November 1, 2008; that Shelly filed for a divorce

from Bradley shortly after B.B. revealed Bradley’s abuse; that Bradley managed

the money Shelly received from Social Security Disability during the marriage,

but that he now manages it; that he and Bradley “got along” during the marriage

(id. at p. 79); that he has never discussed anything regarding private parts with

B.B.; and, that, after the incident on November 1, B.B. had problems eating and

sleeping, and would defecate in her pants. Shinnaberry continued that he arrived

at Shelly’s residence at approximately 8:00 p.m.; that, according to the police

report, he arrived at the police station at 8:45 p.m.; and, that B.B. and Bradley had

a good relationship prior to this incident, but that now, B.B. does not want Bradley

to return.

{¶17} Detective Michael Freeman of the Van Wert Police Department

testified that, on November 3, 2008, he received a call from Deb Booth of JFS

regarding B.B.’s report of sexual abuse; that he then proceeded to Booth’s office

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and spoke with Shelly; that, subsequently, he interviewed Bradley at the police

department; that, during the interview, he asked Bradley about the allegations

regarding B.B., and he denied them; and, that Bradley volunteered to provide a

DNA sample.

{¶18} Dr. Vavul-Roediger testified via recorded video on direct

examination that she was a pediatrician at the Dayton Children’s Medical Center;

that she examined B.B. on November 4, 2008, in response to a report of sexual

abuse; that, prior to the exam, she discussed B.B.’s medical and social history with

Shelly and a case worker from Children’s Services, including the specific

allegations of sexual abuse, because it allowed her to better formulate a medical

assessment and diagnosis; that Shelly told her that two or three months ago, B.B.

had alleged that Bradley sexually abused her; that, at the time, Bradley told her

that B.B. was not being truthful, so she ignored the complaints; that Shelly

continued that, on November 1, 2008, B.B. again indicated Bradley had sexually

abused her in response to an altercation between Shelly and Bradley; that Shelly

further stated that, on November 1, 2008, Shelly attempted to have B.B. examined

at two different hospitals but was unable to because she was uncooperative and

anxious; that Shelly also stated that B.B. had previously complained of genital and

anal itching and that those areas had appeared red in the past, and that B.B. was

very fearful of separating from Shelly and was nervous at times; that, during the

exam, B.B, refused to cooperate with the majority of her requests, although she,

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Shelly, and other hospital staff were able to eventually persuade her to cooperate;

that her examination did not reveal any scars or injuries in B.B.’s genital area; that

she also did not observe any redness, irritation, or discharge around B.B.’s

genitals; that B.B tested negative for gonorrhea, Hepatitis B and C, syphilis, and

HIV; that, although there were no genital abnormalities revealed in the

examination, the possibility of sexual abuse was not ruled out; that it was very

common for a child of B.B.’s age and maturity level to suffer sexual abuse and

there be no physical findings; and, that, based on her examination of B.B., she

rendered a diagnosis of suspected sexual maltreatment.

{¶19} On cross-examination, Dr. Vavul-Roediger testified that she did not

speak one-on-one with B.B. regarding the sexual abuse; that she did not feel it was

appropriate to attempt to obtain the details of the abuse from B.B. because she was

already anxious and fearful, and because a case worker from Children’s Services

was present and had just completed a detailed forensic interview with B.B.; and,

that if there was no physical evidence of sexual abuse discovered during an

examination, a diagnosis of sexual maltreatment would be solely based on the

history that was provided to the examiner.

{¶20} Deb Booth testified that she was an investigator for JFS; that she

interviewed B.B. on November 3, 2008; that some of the common behaviors of

children that have been sexually abused are defecating on themselves, aggression,

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regression, and eating difficulties; and, that it was common for sexually abused

children to act out sexual behaviors on other children and toys.

{¶21} B.B. testified via recorded video on direct examination that she was

five years of age; that she did not remember her father’s name or when he lived

with her; that her father would touch her buttocks; that she could not remember

with what part of his body he would touch her buttocks; that, when he touched her

buttocks, it was not a good feeling; that her mother was not around when he would

touch her buttocks because she was working; that she saw her father with his

clothes off; and, that her father touched her with “this part in the middle,” referring

to a drawn picture of an unclothed man. (Trial Tr., Vol. 3, p. 178). B.B. then

pointed to the vaginal area of a drawn picture of an unclothed girl and stated that

her father touched her in that area. B.B. also testified that she saw a white

substance come out of her father when he touched her, but that she did not touch

the white substance.

{¶22} On cross-examination, and by pointing to drawings, B.B. testified

that no one has ever touched her in her private area or in her buttocks, and that her

mother has put medication on her buttocks using gloves.

{¶23} Thereafter, the State rested and Bradley made a motion for judgment

of acquittal pursuant to Crim.R. 29, which the trial court denied.

{¶24} Bradley testified on direct examination that he was K.B. and B.B.’s

father; that he and Shelly had been having marital problems for the past year; that

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he attempted to get Shelly to attend marital counseling, but she refused to

participate; that, on November 1, 2008, he and Shelly began arguing regarding

finances and spending time together; that, as a result of the argument, he left the

house between 6:00 and 6:30 p.m.; that he returned around 1:00 a.m. and realized

that Shelly had left the residence with the children; that he attempted to see the

children at his father-in-law’s residence, but he was not allowed in; that he and

Shelly are currently going through a divorce; that Shelly received “temporary

custody” of the home, so he was forced to leave (trial tr., vol. 4, p. 207); that B.B.

had constipation problems, so he would occasionally have to administer

suppositories to her; that Shelly was always present when he administered the

suppositories, and B.B. always hated receiving them; that B.B. was approximately

four years old when he had to administer the suppositories; that, on two occasions,

B.B. saw him masturbating, one time when she snuck into the bathroom while he

was in the shower, and one time while he was in the bed with Shelly around 4:00

a.m.; that it would have been possible for B.B. to have seen him ejaculate on these

occasions; that, on both these occasions, he did not intentionally masturbate in

B.B.’s presence; that he tried to cover up when B.B. came into the room while he

was masturbating; that he had been remodeling the house, so there was no door to

the bathroom; that the only time he placed his finger in B.B.’s anus was when he

administered suppositories; and, that he has never raped B.B., placed his penis into

her vagina or anus, or had any type of “sexual contact” with her. (Id. at p. 211).

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{¶25} Subsequently, the jury convicted Bradley on the rape and gross

sexual imposition counts.

{¶26} On June 10, 2009, the State dismissed the one count of pandering

sexually oriented matter involving a minor and the count of illegal use of a minor

in nudity-oriented material or performance.

{¶27} In July 2009, the trial court sentenced Bradley to a prison term of

fifteen years to life on the rape count, and a five-year prison term on the gross

sexual imposition count, to be served concurrently.

{¶28} In December 2009, this Court dismissed Bradley’s appeal for lack of

jurisdiction due the failure of the trial court to include the means of conviction in

the judgment entry of sentence pursuant to State v. Baker, 119 Ohio St.3d 197,

2008-Ohio-3330, and Crim.R. 32(C).

{¶29} In March 2010, the trial court resentenced Bradley to the same

prison term of fifteen years to life on the rape count and five years on the gross

{¶30} It is from his conviction and sentence that Bradley appeals,

presenting the following assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DETERMINED THAT [B.B.’S] HEARSAY STATEMENTS MADE TO SHELLY BRADLEY AND ALLEN SHINNABERRY CONSTITUTED AN “EXCITED UTTERANCE” UNDER EVIDENCE RULE 803(2).

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Assignment of Error No. II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DETERMINED THAT SHELLY BRADLEY’S RECITATION TO DR. VAVUL-ROEDIGER, OF [B.B.’S] HEARSAY STATEMENT, WAS ADMISSIBLE UNDER EVID.R. 803(4).

Assignment of Error No. III

THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF EACH AND EVERY ELEMENT OF GROSS SEXUAL IMPOSITION AS ALLEGED IN COUNT TWO OF THE INDICTMENT FOR A JURY TO FIND THAT APPELLANT COMMITTED GROSS SEXUAL IMPOSITION BEYOND A REASONABLE DOUBT.

Assignment of Error No. IV

THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF BOTH GROSS SEXUAL IMPOSITION AND RAPE BECAUSE THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT.

Assignment of Error No. V

APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HE WAS PREJUDICED AS A RESULT.

Assignment of Error No. VI

DUE TO THE CUMULATIVE ERRORS COMMITTED AT TRIAL, APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

Assignment of Error No. VII

THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

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{¶31} Due to the nature of Bradley’s arguments, we elect to address

assignments of error three and four together, and assignments of error six and

seven in reverse order.

{¶32} In his first assignment of error, Bradley argues that the trial court

abused its discretion in admitting B.B.’s hearsay statements to Shelly and

Shinnaberry regarding the sexual abuse under Evid.R. 803(2)’s excited utterance

exception. Specifically, he contends that B.B.’s statements were not an excited

utterance, but were the product of reflective thought.

{¶33} Initially, we note that Bradley renewed his objections to the hearsay

statements of Shelly, Shinnaberry, and Dr. Vavul-Roediger, thereby preserving

these issues for appeal. State v. Clary (1991), 73 Ohio App.3d 42, 51; Evid.R.

103(A)(1).

{¶34} The admissibility of evidence rests within the sound discretion of the

trial court, State v. Adams, 3d Dist. No. 4-09-16, 2009-Ohio-6863, ¶24, citing

Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164, and, absent an abuse of that

discretion and a showing of material prejudice, an appellate court will not overturn

the trial court’s ruling. State v. Rollison, 3d Dist. No. 9-09-51, 2010-Ohio-2162,

¶32, citing State v. Martin (1985), 19 Ohio St.3d 122, 129. A trial court will be

found to have abused its discretion when its decision is contrary to law,

unreasonable, not supported by the evidence, or grossly unsound. See State v.

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Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18, citing Black’s Law

Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of discretion standard, a

reviewing court may not simply substitute its judgment for that of the trial court.

State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000 WL 777835, citing

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶35} An out-of-court statement offered to prove the truth of the matter

asserted is hearsay and is inadmissible at trial unless an exception applies. Evid.R.

801(C); Evid.R. 802; State v. Messenger, 3d Dist. No. 9-09-19, 2010-Ohio-479,

¶48.

{¶36} Evid. R. 803 sets forth hearsay exceptions, and provides the

following, in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

***

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Evid.R. 803(2).

{¶37} In order for a hearsay statement to the meet the exception contained

under Evid.R. 803(2), the following four elements must be present: “(1) the event

must be startling enough to produce a nervous excitement in the declarant, (2) the

statement must have been made while the declarant was still under the stress of

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excitement caused by the event, (3) the statement must relate to the startling event,

and (4) the declarant must have personally observed the startling event.” State v.

Tebelman, 3d Dist. No. 12-09-01, 2010-Ohio-481, ¶27, citing State v. Taylor

(1993), 66 Ohio St.3d 295, 300-301. “The controlling factor is whether the

declaration was made under such circumstances as would reasonably show that it

resulted from impulse rather than reason and reflection.” State v. Humphries

(1992), 79 Ohio App.3d 589, 598.

{¶38} Furthermore, the excited utterance exception has been liberally

applied in cases involving out-of-court statements made by child declarants who

were alleged victims of sexual abuse on the basis that the statements made by

young children are more trustworthy than those made by adult declarants because

of their limited ability to reflect on past incidents. Tebelman, 2010-Ohio-481, at

¶27, citing In re D.M., 158 Ohio App.3d 780, 2004-Ohio-5858, ¶13; Taylor, 66

Ohio St.3d at 304. Additionally, the amount of elapsed time between the

statements made and the events about which the statements are made is longer for

a child victim than an adult victim for purposes of admissibility under Evid.R.

803(2) because children are likely to remain in a state of nervous excitement for a

longer period of time. State v. Ashcraft, 12th Dist No. CA97-11-217, 1998 WL

667657, citing Humphries, 79 Ohio App.3d at 598; Taylor, 66 Ohio St.3d at 304.

Moreover, a child’s response to a parent’s questions does not destroy the excited

state in which a statement was made as long as the questions are not leading or

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coercive, do not produce reflective thought, and do not destroy the child’s natural

focus and expression. State v. Wallace (1988), 37 Ohio St.3d 87, 92-93.

{¶39} At the May 2009 hearing on the admissibility of B.B.’s statements,

Shelly testified that B.B. began jumping on the couch and acting very excited

within a half-hour to an hour after Bradley left the residence; that, after she asked

B.B. why she was so excited, B.B. responded that Bradley had been

inappropriately touching her; that B.B. became very upset shortly after disclosing

this information, including crying and not wanting to be apart from her; that

approximately one hour after she talked with B.B., Shinnaberry came to the

residence and spoke with B.B. about the sexual abuse; and, that B.B. had vomiting

and diarrhea that evening. However, Shelly testified at trial that the time between

Bradley’s departure and B.B.’s excitement was approximately an hour and a half.

{¶40} Additionally, Shinnaberry testified that he went to Shelly’s residence

in response to B.B.’s allegations of sexual abuse; that, when he arrived at the

residence, B.B. seemed to be both scared and happy that Bradley left; that B.B.

told him that Bradley “stuck his finger up [her] butt” (motion hearing tr., p. 40);

and, that B.B. had vomiting and diarrhea that evening because she was “horrified,

horrified of her dad. Horrified of the house. Horrified of, you know, anything.”

(Id. at p. 45).

{¶41} While there may be some dispute as to the exact duration between

the time when Bradley left the residence and when B.B. became excited, it is clear

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from the record that B.B. did become emotionally charged shortly after Bradley’s

departure, exhibiting both happiness and sadness. This is evident in B.B.’s

reaction around her mother and Shinnaberry, and with her vomiting and diarrhea

during the evening after she disclosed the abuse. While there may have been a

delayed reaction time between the event-causing stimulus of Bradley’s departure

and B.B.’s emotional outburst, admissibility under Evid.R. 803(2) is more

liberally applied in the case of child victims. See Tebelman, 2010-Ohio-481, at

¶27; Ashcraft, supra.

{¶42} Moreover, we do not find admissibility under Evid.R. 803(2)

hindered by the fact that B.B.’s statements regarding the abuse were in response to

questions asked by Shelly and Shinnaberry. The questions were merely to inquire

into the source of B.B.’s emotional outburst and were not leading or coercive.

{¶43} Consequently, because the record reflects that B.B.’s statements

regarding Bradley’s sexual abuse were the result of B.B.’s emotional reaction to

Bradley’s departure, we find that the trial court did not abuse its discretion in

admitting the statements under Evid.R. 803(2).

{¶44} Accordingly, we overrule Bradley’s first assignment of error.

{¶45} In his second assignment of error, Bradley argues that the trial court

abused its discretion in admitting Shelly’s recitation of B.B.’s statements

regarding the sexual abuse to Dr. Vavul-Roediger pursuant to Evid.R. 803(4).

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Specifically, he contends that the statements were not made for the purpose of

medical diagnosis or treatment and were overly prejudicial.

{¶46} A trial court’s decision on the admissibility of evidence is reviewed

for an abuse of discretion, as set forth in our disposition of Bradley’s first

assignment of error. State v. Saxon, 3d Dist. No. 9-08-07, 2008-Ohio-5402, ¶27.

{¶47} Evid.R. 803(4) provides a hearsay exception for statements made for

purposes of medical diagnosis or treatment. The rule states as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(4) Statements for purposes of medical diagnosis or treatment. Statements made for 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.

{¶48} When examining the admissibility of hearsay statements under

Evid.R. 803(4), the primary inquiry is whether the statements were made for the

purposes of medical diagnosis or treatment, as opposed to some other purpose.

See Tebelman, 2010-Ohio-481, at ¶¶37, 55. (Rogers, J., concurring separately).

Additionally, Evid.R. 803(4) has been interpreted to permit into evidence the

hearsay statements of a parent who gives information regarding her child to a

medical professional for purposes of determining whether the child has been

sexually abused. See State v. Brisco, 8th Dist. No. 76125, 2000 WL 1222006,

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citing United States v. Yazzie (C.A.9 1995), 59 F.3d 807, 813. Furthermore,

statements made during a medical examination identifying the perpetrator of a

sexual assault may also be admissible under Evid.R. 803(4) where the statements

were also made for purposes of medical diagnosis or treatment. In re Weatherholt,

3d Dist. Nos. 13-99-31, 13-99-32, 2000-Ohio-1633.

{¶49} Moreover, any error in the admission of hearsay evidence may be

harmless where the declarant has been cross-examined concerning the hearsay

statements, and where the statements provide evidence that is cumulative in

nature. State v. Geboy, 145 Ohio App.3d 706, 721, 2001-Ohio-2214, citing State

v. Tomlinson (1986), 33 Ohio App.3d 278, 281.

{¶50} In the case at bar, Dr. Vavul-Roediger testified that she spoke with

Shelly prior to her physical examination of B.B.; that Shelly told her that B.B.

stated that Bradley sexually abused her; and, that she needed to discuss the

specific allegations of sexual abuse because it allowed her to properly formulate a

medical diagnosis.

{¶51} Based upon Dr. Vavul-Roediger’s testimony, it is clear that Shelly’s

statements were made for purposes of medical diagnosis or treatment.

Furthermore, we find that these statements by Shelly to Dr. Vavul-Roediger were

merely cumulative in nature. Both Shelly and Bradley testified to the statements

that B.B. made regarding the sexual abuse, and B.B. also testified at trial to

Bradley’s sexual abuse. As such, we find any error in the trial court’s admission

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of the statements through Dr. Vavul-Roediger’s testimony to have been harmless

in this case.

{¶52} Accordingly, we overrule Bradley’s second assignment of error.

Assignments of Error Nos. III and IV

{¶53} In his third assignment of error, Bradley claims that his conviction

for gross sexual imposition was unsupported by sufficient evidence. Specifically,

he argues that no evidence was presented that his touching of B.B. was for

purposes of sexual arousal or gratification, and that B.B. only testified to one

incident of sexual touching, which was insufficient to support both a rape and a

gross sexual imposition conviction.

{¶54} In his fourth assignment of error, Bradley argues that the trial court

erred in convicting him of both gross sexual imposition and rape because the

offenses are allied offenses of similar import. Specifically, he asserts that, because

gross sexual imposition is a lesser included offense of rape, and because the State

only presented evidence that the sexual abuse occurred on one occasion, he could

not be convicted of both offenses.

{¶55} When an appellate court reviews a record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d

384, 2005-Ohio-2282, ¶47, citing State v. Jenks (1981), 61 Ohio St.3d 259,

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superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy,

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of

whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson

(1955), 162 Ohio St. 486, superseded by state constitutional amendment on other

grounds as stated in Smith, supra.

{¶56} Bradley was convicted of rape in violation of R.C. 2907.02(A)(1)(b),

and gross sexual imposition in violation of R.C. 2907.05(A)(4). The offenses

provide as follows, respectively:

(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.

R.C. 2907.02(A)(1)(b).

(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 that person.

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R.C. 2907.05(A)(4).

{¶57} Sexual contact is defined as “any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or,

if the person is a female, a breast, for the purpose of sexually arousing or

gratifying either person.” R.C. 2907.01(B). In determining whether the contact

was for purposes of sexual arousal or gratification, ‘“the proper method is to

permit the trier of fact to infer from the evidence presented at trial whether the

purpose of the defendant was sexual arousal or gratification by his contact with

those areas of the body described in R.C. 2907.01. In making its decision the trier

of fact may consider the type, nature and circumstances of the contact, along with

the personality of the defendant. From these facts the trier of facts may infer what

the defendant’s motivation was in making the physical contact with the victim.’”

State v. Huffman, 3d Dist. No. 13-2000-40, 2001-Ohio-2221, quoting In re

Alexander, 3d Dist No. 9-98-19, 1998 WL 767457.

{¶58} R.C. 2941.25 requires a two-prong analysis for a determination of

whether two offenses are allied offenses of similar import, of which a defendant

cannot be convicted of both, and provides as follows:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

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(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

Accordingly, where the two crimes are committed separately, or where there is a

separate animus for each crime, the defendant may be convicted of both crimes.

State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, ¶14.

{¶59} At trial, B.B. testified that Bradley touched her buttocks, and that

Bradley also touched her vagina. Additionally, B.B. testified that Bradley touched

her with his penis, and that she also saw a white substance come out of Bradley’s

penis. Moreover, both Shelly and Shinnaberry testified that B.B. told them that

Bradley inserted his finger in her buttocks.

{¶60} Based on the testimony presented at trial, we find that sufficient

evidence existed to support a conviction for gross sexual imposition under R.C.

2907.05(A)(4), as testimony was presented that Bradley touched B.B.’s buttocks

and vagina, that B.B. was under thirteen years of age, and that Bradley ejaculated,

the latter fact being sufficient to allow a reasonable jury to conclude that the

contact was for purposes of sexual arousal or gratification.

{¶61} Furthermore, we find that two distinct and separate sexual acts were

described, one in which Bradley inserted his finger into B.B.’s buttocks, and one

in which Bradley touched B.B.’s vagina. The conclusion that two separate acts

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occurred is further supported by B.B.’s testimony that Bradley touched her with

his penis.

{¶62} Consequently, because evidence was presented establishing all the

elements of gross sexual imposition under R.C. 2907.05(A)(4), and because B.B.

testified to two separate acts, we find that Bradley’s conviction for gross sexual

imposition is supported by sufficient evidence, and that his convictions for rape

and gross sexual imposition are not improper convictions for allied offenses of

similar import.

{¶63} Accordingly, we overrule Bradley’s third and fourth assignments of

error.

{¶64} In his fifth assignment of error, Bradley contends that he was denied

the effective assistance of counsel. Specifically, he argues that trial counsel failed

to object to the testimony provided by B.B., where she was permitted to answer

questions by pointing to different circles on a piece of paper, and where the State

asked leading and highly suggestive questions during direct examination. We

disagree.

{¶65} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio

St.3d 136, paragraph two of syllabus. To show that a defendant has been

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prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different. Id. at paragraph three of syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by

constitutional amendment on other grounds as recognized by Smith, 80 Ohio St.3d

at 103.

{¶66} Additionally, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone

(1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not

exist merely because counsel failed ‘to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.

Murray (1986), 477 U.S. 527. Furthermore, because attorneys licensed by the

State of Ohio are presumed to provide competent representation, State v. Pierce,

3d Dist. No. 11-09-05, 2010-Ohio-478, ¶33, citing State v. Hoffman (1998), 129

Ohio App.3d 403, 407, we must afford a high level of deference to the

performance of trial counsel. Bradley, 42 Ohio St.3d at 142. Moreover, trial

counsel’s failure to raise an objection, alone, does not constitute ineffective

assistance, and is generally viewed as trial strategy. State v. Turks, 3d Dist. No. 1-

08-44, 2009-Ohio-1837, ¶43, citing State v. Conway, 109 Ohio St.3d 412, 2006-

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Ohio-2815, ¶103; State v. McKinney, 11th Dist. No. 2007-T-0004, 2008-Ohio-

3256, ¶191.

{¶67} During B.B.’s testimony, the State asked her several leading

questions in order to obtain her testimony, mainly due to the fact that B.B. was

reluctant to answer some of the questions and was unresponsive at times.

Additionally, when answering the questions, B.B. often pointed to a sheet of paper

with the word “yes” in green, and the word “no” in red.

{¶68} While leading questions on direct examination are generally

impermissible, such questions are permitted when necessary to develop the

witness’ testimony. Evid.R. 611(C); Proctor, Director, Ohio Dept. of

Transportation v. Kewpee, Inc., et al., 3d Dist. No. 1-08-03, 2008-Ohio-5197, ¶26.

Here, such leading questions were necessary when dealing with a five-year-old

victim who was obviously reluctant to testify while surrounded by strangers

regarding sexual acts committed against her by her father. See State v. Connett,

5th Dist. No. CA-801, 1995 WL 43626 (trial court did not abuse its discretion in

permitting the State to ask leading questions of a child-victim on direct

examination where the child was of a young age and where the State needed to

elicit specific details regarding sexual activity); State v. Madden (1984), 15 Ohio

App.3d 130 (trial court did not abuse its discretion in allowing the State to ask

leading questions on direct examinations of eight-year-old and twelve-year-old

victims regarding explicit sexual acts performed on the victims).

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{¶69} Moreover, we also find to be permissible B.B.’s use of “yes” and

“no” signs to testify. B.B. was declared competent to testify by the trial court, and

merely using a small aid to assist her in testifying to multiple frightening incidents

in no way prejudiced Bradley.

{¶70} Consequently, because we find no error in the State’s use of leading

questions on direct examination, or in B.B.’s use of a sign to help her testify, we

find no error in trial counsel’s failure to object to these matters.

{¶71} Accordingly, we overrule Bradley’s fifth assignment of error.

{¶72} In his seventh assignment of error, Bradley asserts that his

convictions were against the manifest weight of the evidence. Specifically, he

contends that no physical evidence was presented by the State to support the

convictions; that Shelly’s testimony regarding B.B.’s statements lacked credibility

due to Shelly’s motive to fabricate the story; and, that the State’s only evidence of

the sexual abuse was inadmissible hearsay statements from Shelly, Shinnaberry,

and Dr. Vavul-Roediger, and statements from B.B. that were elicited by

suggestive and leading questioning. We disagree.

{¶73} When an appellate court analyzes a conviction under the manifest

weight standard, it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

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lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387,

superseded by constitutional amendment on other grounds as stated by Smith, 80

Ohio St.3d 89, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. Only in

exceptional cases, where the evidence “weighs heavily against the conviction,”

should an appellate court overturn the trial court’s judgment. Id.

{¶74} In the case sub judice, Shelly testified that B.B. became very excited

shortly after Bradley left the residence; that B.B. told her that Bradley “touched

her” and “stuck his finger up her butt” (trial tr., vol. 1, p. 24); that B.B. made prior

complaints to her regarding pain in her vaginal area; that she previously observed

B.B.’s vagina to be red and irritated; and, that when B.B. attended counseling after

disclosing Bradley’s sexual abuse, she acted out sexually with other children.

{¶75} Additionally, Shinnaberry testified that B.B. also told him that

Bradley inserted his finger into her buttocks; that B.B. was very frightened when

she told him about the abuse; and, that, after B.B. disclosed Bradley’s abuse, she

had difficulty eating and sleeping, and was sometimes unable to control her bowl

movements.

{¶76} Moreover, B.B. testified that Bradley touched her buttocks and

vagina; that Bradley would touch her with his penis; that she saw a white

substance come out of Bradley’s penis; and, that it did not feel good when Bradley

touched her buttocks.

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{¶77} On the other hand, Bradley testified that he and Shelly had been

having marital difficulties over the past year; that he attempted to get Shelly to

attend marital counseling, but she refused; that he had to occasionally administer

suppositories to B.B. up until she was four years old; that B.B. sneaked into the

bedroom on one occasion, and the bathroom on another occasion, and saw him

masturbating; that he did not intentionally masturbate in front of B.B., but she

might have seen him ejaculate; that the only time he placed his finger in B.B.’s

anus was to administer suppositories; that he has never raped B.B. or placed his

penis in her anus or vagina; and, that he has never had any “sexual contact” with

B.B. (Trial tr., Vol. 4, p. 207).

{¶78} Additionally, Dr. Vavul-Roediger testified that she examined B.B. in

regards to the alleged sexual abuse; that B.B. was uncooperative throughout the

exam, although she was able to complete the exam; that her examination did not

reveal any scars, injuries, redness, or irritation around B.B.’s vagina; that B.B

tested negative for gonorrhea, Hepatitis B and C, syphilis, and HIV; and, that she

diagnosed B.B. as being suspected of sexual maltreatment because it was very

common for a child of B.B.’s age and maturity level to suffer sexual abuse and

there be no physical findings.

{¶79} Based on the evidence presented, it is clear that Bradley’s conviction

was not against the manifest weight of the evidence. Shelly and Shinnaberry both

testified to a fearful B.B. telling them of Bradley’s sexual abuse, and B.B. also

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testified to the same account of the incident as she told her mother and

grandfather. While Bradley testified that he never sexually abused B.B.; that

B.B.’s account of him touching her buttocks was due to his administration of

suppositories to her; and, that B.B. testified that she saw him ejaculate because he

inadvertently masturbated in front of her, the jury likely found Bradley’s self-

serving testimony to be unreliable. See State v. Lowd, 3d Dist. No. 5-09-16, 2010-

Ohio-193, ¶17, quoting State v. Thompson (1998), 127 Ohio App.3d 511, 529

(“The fact-finder * * * occupies a superior position in determining credibility. The

fact-finder can hear and see as well as observe the body language, evaluate voice

inflections, observe hand gestures, perceive the interplay between the witness and

the examiner, and watch the witnesses' reaction to exhibits and the like”).

{¶80} Furthermore, the lack of physical evidence of the offenses, as

testified to by Dr. Vavul-Roediger, does not necessarily imply the offenses did not

occur, as she also testified that it is common for there to be no physical findings in

sexual abuse cases.

{¶81} Accordingly, we overrule Bradley’s seventh assignment of error.

{¶82} In his sixth assignment of error, Bradley argues that he was denied

his constitutional right to a fair trial due to the cumulative errors committed at

trial. Specifically, he maintains that the trial court’s abuse of discretion in

admitting the hearsay testimony of Shelly, Shinnaberry, and Dr. Vavul-Roediger,

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along with his trial counsel’s errors in failing to object to the content, manner, and

procedure of B.B.’s testimony, all combined to prejudice his right to a fair trial.

{¶83} Because we have found no prejudicial errors in the aforementioned

arguments set forth in the previous six assignments of error, Bradley’s argument

must also fail that cumulative errors at trial denied him his constitutional right to a

fair trial.

{¶84} Accordingly, we overrule Bradley’s sixth assignment of error.

{¶85} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, P.J., and SHAW, J., concur.

/jnc

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