State v. English

2014 Ohio 441

Opinion

[Cite as State v. English, 2014-Ohio-441.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-03-048

: OPINION - vs - 2/10/2014 :

JAMES ENGLISH, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-10-1695

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Jeffrey W. Bowling, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant- appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, James English, appeals from his convictions in the Butler

County Court of Common Pleas of two counts of gross sexual imposition. For the reasons

detailed below, we affirm the decision of the trial court.

{¶ 2} On October 24, 2012, appellant was charged under a three-count indictment for

separate instances of gross sexual imposition involving different minor females in violation of Butler CA2013-03-048

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

{¶ 3} On March 4, 2013, the same day as the jury trial was set to begin, appellant

filed a motion to sever each count in the indictment. The trial court denied appellant's motion

and the matter proceeded to trial with the state calling each of the three minor victims in its

case-in-chief.

{¶ 4} D.E. testified that she had been seven years old at the time of the sexual

contact with appellant. D.E. stated that appellant was an acquaintance of her mother who

occasionally came to the house D.E. shared with her mother and her mother's boyfriend.

D.E. testified that on May 24, 2012 she was alone with appellant in the downstairs portion of

her home. At some point, D.E. went to lie down in a back bedroom because she had been

feeling ill. D.E. further testified that a short time later, appellant came into the back bedroom

and offered to get her a drink. When appellant returned, D.E. stated that appellant bent

down and touched her in the "private" with his finger. After appellant finished touching her,

appellant asked D.E. if she was "feeling better." D.E. stated that she did not feel better and

asked appellant to leave the room. Appellant left the room and did not return.

{¶ 5} T.M. was the next witness called by the state and she testified as to an incident

of sexual contact between herself and appellant that occurred in April or May of 2012. At the

time, T.M. was ten years old and had been sleeping on the couch located in her family living

room when she was suddenly awakened by a hand that was abruptly pulled out from the

inside of her pants. When T.M. awoke, appellant was standing right beside her near the arm

of the couch. T.M. testified that appellant had been rubbing her buttocks right before she

was awakened by appellant's sudden movement.

{¶ 6} S.M. was the state's third witness to testify and stated that she was 12 years old

at the time of the allegations listed in the indictment. According to S.M.'s trial testimony, in

May of 2012, S.M. and appellant went to S.M.'s former residence to pick up some laundry for -2- Butler CA2013-03-048

school. While the two were alone in the house together, S.M. alleged that appellant gave her

a hug, stuck his hand in her pants and then threw her to the ground. However, on cross-

examination, S.M. acknowledged that she had previously told police that she had been

successful in preventing appellant from reaching down her pants.

{¶ 7} At the conclusion of the trial, the jury returned guilty verdicts for the counts of

gross sexual imposition committed against the first two victims, D.E. and T.M. The jury could

not come to a unanimous decision regarding the allegations made by the third victim, S.M.

Accordingly, the trial court declared a mistrial with regard to the count related to S.M. That

charge was subsequently dismissed by the state. The trial court ultimately sentenced

appellant to a total prison term of eight years.

{¶ 8} Appellant now appeals his convictions, raising six assignments of error. For

ease of discussion, we will address the assignments of error out of order.

{¶ 9} Assignment of Error No. 5:

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY

REFUSING TO SEVER EACH COUNT FOR TRIAL.

{¶ 11} Appellant's fifth assignment of error alleges the trial court improperly denied his

motion to sever under Crim.R. 14. Appellant contends that the cumulative effect of joining all

three offenses at trial was unfairly prejudicial. In essence, appellant argues a jury would not

have convicted him in the case at bar without the joinder of all three offenses because the

state presented no physical evidence, no eyewitnesses, and no expert testimony to

corroborate the victims' testimonies. We find no merit to this argument.

{¶ 12} The decision to grant or deny a motion to sever is a matter in the trial court's

discretion, and therefore, we review this decision under an abuse of discretion standard.

State v. Matthews, 12th Dist. Butler No. CA2012-09-175, 2013-Ohio-3482, ¶ 35. An abuse of

discretion implies that the trial court's decision was unreasonable, arbitrary, or -3- Butler CA2013-03-048

unconscionable. State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 11.

{¶ 13} "The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if

the offenses charged 'are of the same or similar character.'" State v. Lott, 51 Ohio St.3d 160,

163 (1990), quoting State v. Torres, 66 Ohio St.2d 340 (1981). However, a defendant may

move to sever offenses that have been properly joined where it appears that joinder would be

prejudicial. Matthews at ¶ 36.

{¶ 14} To prevail on a claim that the trial court erred in denying a motion to sever, the

appellant must demonstrate: "(1) that his rights were prejudiced, (2) that at the time of the

motion to sever he provided the trial court with sufficient information so that it could weigh the

considerations favoring joinder against the defendant's right to a fair trial, and (3) that given

the information provided to the court, it abused its discretion in refusing to separate the

charges for trial." State v. Schaim, 65 Ohio St.3d 51, 59 (1992); Rose at ¶ 13.

{¶ 15} "The state may negate a claim of prejudice in one of two ways." Rose, 2012-

Ohio-5607, at ¶ 14. "The first is through the 'other acts' test, where the 'state must

demonstrate it could have introduced evidence of the joined offenses at separate trials,

pursuant to the 'other acts' provision of Evid.R. 404(B).'" Id., citing Lott at 163. Additionally,

under the "joinder test," the state may refute a claim of prejudice by showing "that the

evidence of each crime joined at trial is simple and direct." Id., citing State v. Moshos, 12th

Dist. Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 76. By demonstrating that the evidence

is "simple and direct," the state negates any claims of prejudice and joinder will be proper.

Matthews, 2013-Ohio-3482, at ¶ 38; Rose at ¶ 14.

{¶ 16} The trial court denied appellant's motion to sever based on the following three

grounds: (1) because the motion was untimely filed, (2) because the evidence was simple

and direct as to each witness, and also (3) because the evidence was admissible under

Evid.R. 404. After consideration, we conclude the trial court did not err in denying appellant's -4- Butler CA2013-03-048

motion to sever. The trial court had ample grounds to deny that motion.

{¶ 17} We agree with the trial court's finding that appellant's motion to sever was

untimely filed. A motion to sever charges in an indictment is a pretrial motion under Crim.R.

12(C)(5) and is subject to the time limitation contained in Crim. R. 12(D). State v. Bell, 3d

Dist. Seneca No. 13-12-39, 2013-Ohio-1299, ¶ 29. According to Crim. R. 12(D), "[a]ll pretrial

motions * * * shall be made within thirty-five days after arraignment or seven days before trial,

whichever is earlier." The failure to file a motion to sever in a timely fashion without any

legitimate reason for its delay has routinely been a basis for denial of a motion to sever. Bell

at ¶ 29; State v. Palmer, 7th Dist. Jefferson No. 04-JE-41, 2006-Ohio-749, ¶ 12; State v.

Montgomery, 2d Dist. Montgomery No. 22193, 2009-Ohio-1415, ¶ 16-17. Because the

record in this case reflects that appellant filed his motion to sever on the day of trial and did

not provide any legitimate reason for its delay, we conclude that the trial court did not abuse

its discretion in denying appellant's motion to sever on the basis of timeliness.

{¶ 18} However, even if appellant had timely filed his motion to sever, the trial court

would still have had grounds to deny appellant's motion. First, the evidence presented in this

case was simple and direct. Appellant was charged with three separate instances of gross

sexual imposition, each of which occurred in a separate incident against one of the three

respective victims, at a different location, and at a different time. The state presented the

testimony of each victim who provided evidence relating to her specific interactions with

appellant and recounted the alleged sexual contact giving rise to the allegations. The

remaining witness, Detective Hoover, testified as to his investigation with respect to each

alleged instance of misconduct. The offenses were separately tried and proven by the state.

The testimony produced by the state could be easily segregated by the jury and would be

unlikely to confuse their deliberations. The trial court instructed the jury that all charges must

be considered separate matters. Therefore, since the record supports the contention that the -5- Butler CA2013-03-048

charges were "simple and direct," appellant cannot demonstrate that he was prejudiced by

the failure to grant his motion to sever.

{¶ 19} Finally, the trial court was also correct in noting that the evidence produced at

trial would have been admissible "other acts" evidence under Evid.R. 404. Appellant's prior

acts were relevant to show appellant's "motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident." Evid.R. 404(B). The "other acts"

evidence introduced in this case would not have been prejudicial to the appellant since we

have already agreed with the trial court's decision that the evidence was "simple and direct."

State v. McDonald, 9th Dist. Medina No. 12CA0093-M, 2013-Ohio-4972, ¶ 32, citing Lott, 51

Ohio St.3d at 163 ("[W]hen simple and direct evidence exists, an accused is not prejudiced

by joinder regardless of the nonadmissibility of evidence of these crimes as 'other acts' under

Evid.R. 404(B)").

{¶ 20} Accordingly, the trial court did not err in denying appellant's motion to sever.

Appellant's fifth assignment of error is therefore overruled.

{¶ 21} Assignment of Error No. 6:

{¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY

ALLOWING [D.E.] TO TESTIFY.

{¶ 23} In his sixth assignment of error, appellant argues, in substance, that D.E.

lacked the ability to adequately recollect impressions of fact. We disagree.

{¶ 24} Pursuant to Evid.R. 601, "[e]very person is competent to be a witness except * *

* children under ten years of age, who appear incapable of receiving just impressions of the

facts and transactions respecting which they are examined, or of relating them truly." It is the

duty of the trial court to conduct an examination of a child less than ten years old to

determine the child's competency to testify. State v. Tillman, 12th Dist. Butler No. CA2003-

09-243, 2004-Ohio-6240, ¶ 8. In determining whether a child under ten years old is -6- Butler CA2013-03-048

competent to testify, the trial must take into consideration: "(1) the child's ability to receive

accurate impressions of fact or to observe acts about which he or she will testify, (2) the

child's ability to recollect those impressions or observations, (3) the child's ability to

communicate what was observed, (4) the child's understanding of truth and falsity and (5) the

child's appreciation of his or her responsibility to be truthful." State v. Frazier, 61 Ohio St.3d

247, 251 (1991).

{¶ 25} A child witness under ten years old may be competent to testify even though

the child is unable to recollect all of the facts of a given situation. State v. Fry, 125 Ohio

St.3d 163, 2010-Ohio-1017, ¶ 76. The child's answers must demonstrate that the child "can

perceive and recall generally and understands the concept of truthfulness." Id. A trial court's

finding that a child under the age of ten is competent to testify shall not be disturbed, absent

an abuse of discretion. Frazier at 250-251; State v. Goins, 12th Dist. Butler No. CA2000-09-

190, 2001 WL 1525298, *4 (Dec. 3, 2001). An abuse of discretion is more than an error of

law or judgment, but instead connotes that "the trial court's decision was unreasonable,

arbitrary or unconscionable." State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

{¶ 26} In this case, D.E. was eight years old at the time of the trial. To determine if

D.E. was competent to testify, the trial court held a competency hearing before the start of

trial. During the hearing, the trial court asked D.E. a number of questions related to her

ability to recollect impressions and observations, and whether she knew the difference

between truth and falsity. After concluding the hearing, and over appellant's objection, the

trial court found that D.E. was competent to testify.

{¶ 27} Appellant argues that the trial court's decision permitting D.E. to testify was an

abuse of discretion. In support, appellant cites to statements made by D.E. during both her

competency hearing and her trial testimony. First, appellant argues that D.E. should not

have been permitted to testify because, during the competency hearing, D.E. could not recall -7- Butler CA2013-03-048

what she had done the previous Monday or the name of the previous month. In addition,

appellant also argues D.E. should not have been permitted to testify because: (1) she was

unable to recall the type of clothing that appellant was wearing during the incident, (2) she

was unable to recall all of the statements that she had given during prior police interviews,

and (3) she was unable to identify the sound of her voice from a previously recorded

interview with the police.

{¶ 28} Upon review, we find the trial court did not abuse its discretion when it permitted

D.E. to testify. While it is true that D.E. had difficulty in answering some questions posed to

her by defense counsel, she was able to answer most questions appropriately. D.E.'s

testimony at the competency hearing indicated that she knew the difference between truth

and falsity and that she understood that it was important to tell the truth. D.E. was also able

to answer various other questions posed by the trial court, including the name of her school,

what grade she was in, the weather, certain dates, and her house address. For example:

THE COURT: What grade are you in?

[D.E.]: Third.

THE COURT: * * * What's your favorite subject in school?

[D.E.]: Math.

THE COURT: Math? Good for you. I was never any good at math, but I'm glad somebody is. What's your least favorite?

[D.E.]: Science.

THE COURT: Science, okay. If I was to tell you that your favorite subject in school is science, would that be a lie or that would [sic] be the truth?

[D.E.]: A lie.

THE COURT: Okay. If I was to tell you that it looks like it's [sic] really warm outside, let's go swimming out in the pool. Would I --

[D.E.]: Lie.

-8- Butler CA2013-03-048

THE COURT: -- be telling you a lie or the truth?

THE COURT: Okay. You understand how important it is to tell the truth?

[D.E.]: Yes.

THE COURT: And if you don't tell the truth, do you get punished?

[D.E.]: Yes, sir.

{¶ 29} We find the trial court heard sufficient testimony to declare D.E. competent to

testify and, thus, did not abuse its discretion in permitting her to testify. See, e.g., Tillman,

2004-Ohio-6240, at ¶ 12 (trial court did not err in permitting a five-year-old victim to testify

because "[a]lthough the victim had difficulty answering some questions, she answered most

questions appropriately"); see also State v. McNeill, 83 Ohio St.3d 438, 443 (1998)

(upholding a trial court's decision allowing two children to testify while acknowledging "[w]hile

the children could not answer every question posed, the transcript indicates they were in fact

able to receive, recollect, and communicate impressions of fact, and appreciate the

responsibility to be truthful"). Accordingly, we overrule appellant's sixth assignment of error.

{¶ 30} Assignment of Error No. 3:

{¶ 31} DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO

DETECTIVE HOOVER'S INADMISSIBLE HEARSAY AND CORROBORATION

TESTIMONY.

{¶ 32} In his third assignment of error, appellant alleges that he received ineffective

assistance of counsel because his trial counsel failed to object to the testimony of Detective

Hoover. Appellant argues that the testimony of Detective Hoover, reciting certain statements

made by D.E. and T.M. during the police investigation, constituted improper hearsay and

-9- Butler CA2013-03-048

corroboration testimony. After a thorough review, we conclude that appellant has failed to

establish a claim of ineffective assistance of counsel and overrule his assignment of error.

{¶ 33} "To establish a claim of ineffective assistance of counsel, a defendant must

show that his or her counsel's actions were outside the wide range of professionally

competent assistance, and that prejudice resulted by reason of counsel's actions." State v.

Ullman, 12th Dist. Warren No. CA2002-10-110, 2003-Ohio-4003, ¶ 43, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Accordingly, counsel's performance

will not be deemed ineffective unless (1) his counsel's performance was deficient in that it fell

below an objective standard of reasonableness, and (2) he was prejudiced by that deficient

performance in that there is a reasonable probability that, but for his counsel's deficient

performance, the outcome of his trial would have been different. State v. Russell, 12th Dist.

Butler No. CA2012-08-156, 2013-Ohio-3079, ¶ 49, citing Strickland at 687. A reasonable

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

proceeding." State v. Scott, 12th Dist. Warren No. CA2012-06-052, 2013-Ohio 2866, ¶ 16.

{¶ 34} The rule against hearsay provides that certain out-of-court statements are

inadmissible at trial unless the statement falls under one of the exceptions to the rule. State

v. Penwell, 12th Dist. Fayette No.CA2010-08-019, 2011-Ohio-2100, ¶ 11. Hearsay is defined

as a "statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C).

{¶ 35} The state contends that the statements made by both D.E. and T.M. to

Detective Hoover are admissible under Evid.R. 801(D)(1)(b). Pursuant to Evid.R.

801(D)(1)(b) an out-of-court statement is not considered hearsay if "[t]he declarant testifies at

trial * * * and is subject to cross-examination concerning the statement, and the statement is *

* * consistent with declarant's testimony and is offered to rebut an express or implied charge

against declarant of recent fabrication or improper influence or motive." State v. Brown, 12th - 10 - Butler CA2013-03-048

Dist. Butler No. CA2011-11-207, 2013-Ohio-1610, ¶ 16. The rule "permits the rehabilitation

of a witness whose credibility has been attacked by an express or implied charge that he

recently fabricated his story or falsified his testimony in response to improper motivation or

undue influence." Id.; State v. Smith, 12th Dist. Butler No. CA2009-02-038, 2010-Ohio-1721,

¶ 102.

{¶ 36} In order for this rule to apply, "the declarant must be subject to cross-

examination and the statement must be offered to rebut an accusation that the declarant lied

or was improperly influenced in [their] testimony." State v. Williams, 12th Dist. Butler No.

CA2007-04-087, 2008-Ohio-3729, ¶ 12. To be admissible, the prior consistent statement

must have been made before the existence of any motive or influence to falsify testimony.

Brown at ¶ 16; Smith at ¶ 103. "In determining whether to admit a prior consistent statement

for rebuttal purposes, a trial court should take a generous view of the entire trial setting to

determine if there was sufficient impeachment of the witness to amount to a charge of

fabrication or improper influence or motivation." Smith at ¶ 103, citing State v. Grays, 12th

Dist. Madison No. CA2001-02-007, 2001-Ohio-8679, *5.

D.E.'s prior statements to Detective Hoover

{¶ 37} During D.E.'s testimony, appellant's trial counsel repeatedly asked questions

pertaining to D.E.'s memories of the events giving rise to the allegation of gross sexual

imposition. Additionally, appellant's trial counsel asked about specific inconsistencies in prior

statements that D.E. had made to police during the investigation. For example, appellant's

trial counsel questioned D.E. about the sexual contact that appellant had with D.E.:

Q. Do you remember telling a detective at Middletown Police Department that, "He just touched it?" Those were your words. Do you remember that?

A. No, he didn't -- I didn't say that.

Appellant's trial counsel then played a portion of the videotaped recording of D.E.'s interview - 11 - Butler CA2013-03-048

with the Middletown Police Department to rebut D.E.'s testimony and impeach her credibility.

{¶ 38} Following the testimony of the three victims, the state called Detective Hoover

to testify and asked whether D.E.'s statements during the police investigation had been

consistent with D.E.'s trial testimony. Detective Hoover testified:

Q. Detective, in the course of your duties, did you interview [D.E.]?

A. I did.

*** Q. Okay. And you heard [D.E.] testify today?

A. That's correct.

Q. And did this -- did [D.E.] testify consistently with what she told you and Detective Shoemake?

A. Yes, ma'am.

Q. Could you tell us what [D.E.] said that was consistent with what she told you and Detective Shoemake?

A. She told us that she was laying down in a bed at the house on 1819 Sherman Avenue, that [appellant] came in the room where she was at and stuck his hand down the front of her pants -- to open her legs or spread her legs, and she wouldn't do that. He forced her legs open, and then continued to touch her -- what [s]he called -- her private parts.

{¶ 39} Appellant's trial counsel did not object to this testimony. On appeal, appellant

argues that the statements made by Detective Hoover were inadmissible hearsay and were

"elicited to imply a perverse and sexual nature" for appellant's conduct. We disagree.

{¶ 40} We find appellant's trial counsel was not ineffective for failing to object to the

testimony of Detective Hoover concerning D.E.'s prior statements. Pursuant to Evid.R.

801(D)(1)(b) the state could introduce prior consistent statements in order to rebut the charge

of recent fabrication. During D.E.'s cross-examination, appellant's trial counsel asked D.E.

about a prior statement made to investigators, in which she stated "[h]e just touched it." That

question related to the sexual activity at issue in the case and implied the recent fabrication

- 12 - Butler CA2013-03-048

of D.E.'s account of the incident. Further, by playing the tape recording of D.E.'s interview

with the police, appellant's trial counsel opened the door to the testimony of Detective

Hoover, in which Detective Hoover recited D.E.'s prior consistent testimony.

{¶ 41} Because appellant is unable to show any deficient performance of counsel

arising from counsel's failure to object to Detective Hoover's testimony concerning D.E.'s

prior statements, appellant has failed to support his claim of ineffective assistance of

counsel. As the Ohio Supreme Court has recognized "counsel is not deficient for failing to

raise a meritless issue." State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, ¶ 117, citing

State v. Taylor, 78 Ohio St.3d 15 (1997). Therefore, we overrule appellant's third assignment

of error with respect to Detective Hoover's testimony concerning D.E.'s prior consistent

statements.

T.M.'s prior statements to Detective Hoover

{¶ 42} We reach a different conclusion with respect to the admissibility of Detective

Hoover's testimony concerning T.M.'s prior statements. Like the cross-examination of D.E.,

appellant's trial counsel also questioned T.M.'s recollection of the events giving rise to the

allegation of gross sexual imposition. However, unlike the cross-examination of D.E.,

appellant's trial counsel did not make an express or implied charge against T.M. of a recent

fabrication. Appellant's trial counsel made only one reference to a prior interview between

T.M. and the Middletown police.

Q. Do you remember talking to someone from the Middletown Police Department?

A. I don't know.

Q. Okay. Do you remember talking with someone, a female from Children's Hospital, the Morrison Center?

A. No, I don't remember.

After this line of inquiry, appellant's trial counsel did not expressly or impliedly charge that - 13 - Butler CA2013-03-048

T.M. fabricated her story, nor did counsel play any of the video recorded statements made by

T.M. during the police investigation.

{¶ 43} Although appellant's trial counsel did not specifically question T.M. about any

prior statements given to police during the investigation, Detective Hoover testified about

statements made by T.M. during the course of the police investigation:

Q. Okay. Likewise, did you have the interview -- opportunity to interview [T.M.] in this particular investigation?

Q. And you saw [T.M.] testify today?

Q. And did she testify consistently with what she told you in the interview?

Q. What did she tell you that was consistent with what she testified to today?

A. She stated that she was laying down in the living room at 1411 Fairmont where she was living at the time. That he came into the living room where she was at and he stuck his hand in her pants as well.

Similar to Detective Hoover's testimony regarding D.E., appellant's trial counsel did not object

to any of the questions made by the state. On appeal, appellant argues that the statements

made by Detective Hoover concerning T.M. constituted inadmissible hearsay and were not

admissible as a prior consistent statement under Evid.R. 801(D)(1)(b). We agree.

{¶ 44} Detective Hoover's testimony regarding T.M.'s prior statements made during the

police investigation constituted improper hearsay. Appellant's trial counsel did not suggest

that T.M. fabricated her testimony, either expressly or impliedly. See, e.g., State v. Kane, 1st

Dist. Hamilton No. C-110629, 2012-Ohio-4044, ¶ 14 (implication that memory was the result

of a dreamlike hallucination or a dramatic story made up by the victim was not considered

- 14 - Butler CA2013-03-048

charge of recent fabrication). The only mention of T.M.'s prior statements relevant to

Detective Hoover's testimony came when appellant's trial counsel asked T.M. if she

"remember[ed] talking to someone from the Middletown Police Department?" T.M.

responded that she did not remember the discussion.

{¶ 45} The mere failure of T.M. to remember the events surrounding an interview with

police or hospital personnel, without anything further, does not rise to the level of implied

fabrication. Accordingly, because there is no charge of recent fabrication, the testimony of

Detective Hoover was not admissible under Evid.R. 801(D)(1)(b). Because no other hearsay

exception applies, Detective Hoover's testimony concerning T.M.'s prior statements

constituted inadmissible hearsay.

{¶ 46} Although the testimony provided by Detective Hoover concerning T.M.'s prior

statements was objectionable, we find that appellant was not prejudiced by counsel's failure

to object. This court has previously acknowledged, the "failure to make a sufficient showing

on either the 'performance' or 'prejudice' prong of the Strickland standard will doom a

defendant's ineffective assistance of counsel claim. State v. Lahmann, 12th Dist. Butler No.

2007-Ohio-1795, ¶ 11, quoting Strickland, 466 U.S. 668, at 697; see also State v. McCoy,

12th Dist. Warren No. CA2013-04-033, 2013-Ohio-4647, ¶ 21("an appellate court is not

required to examine counsel's performance under the first prong of the Strickland test if an

appellant fails to prove the second prong of prejudicial effect"). In demonstrating prejudice,

appellant must show that there is a reasonable probability that, but for counsel's deficient

performance, the result of the trial would have been different. McCoy at ¶ 21; State v.

Russell, 12th Dist. Butler No. CA2012-08-156, 2013-Ohio-3079, ¶ 49.

{¶ 47} Based on our review of the record, we find that appellant did not receive

ineffective assistance of counsel based on his trial counsel's failure to object to the testimony

of Detective Hoover concerning T.M.'s prior statements because appellant failed to prove the - 15 - Butler CA2013-03-048

second prong of prejudicial effect under the Strickland test. Assuming that counsel should

have objected to the testimony of Detective Hoover, counsel's deficiency constituted, at most,

harmless error. See Kane, 2012-Ohio-4044 at ¶ 14; see also State v. Trusty, 1st Dist.

Hamilton Nos. C-120378, C-120386, 2013-Ohio-3548, ¶ 50.

{¶ 48} In the present case, T.M. testified in court and was subject to cross-examination

by appellant's trial counsel. The testimony provided by T.M. covered all of the elements

necessary to sustain a conviction of gross sexual imposition. Detective Hoover's testimony

concerning T.M.'s statements essentially reiterated the unrefuted testimony that was already

provided by T.M. during her direct testimony. Further, unlike during D.E.'s testimony, T.M.'s

credibility was not attacked on the basis of fabrication and T.M.'s testimony remained

consistent. As this court has previously stated, "where a declarant is examined on the same

matters as contained in impermissible hearsay statements and where admission is

essentially cumulative, such admission is harmless." State v. Tomlinson, 33 Ohio App.3d

278, 281 (12th Dist. 1986); State v. Noles, 6th Dist. Lucas No. L-12-1310, 2013-Ohio-4088, ¶

42; Trusty at ¶ 50. Thus, even if appellant's trial counsel should have objected to Detective

Hoover's testimony, that failure does warrant reversal on the basis of ineffective assistance of

counsel.

{¶ 49} We also note that the jury does not appear to have placed undue emphasis on

Detective Hoover's testimony. For instance, the record reflects that the jury failed to convict

appellant on a third charge of gross sexual imposition involving S.M. Similar to his testimony

concerning the other victims, Detective Hoover testified that S.M.'s trial testimony had been

consistent with S.M.'s prior police interviews. Detective Hoover also testified as to the

specific allegations made by S.M. against appellant during that police interview. Despite

Detective Hoover's testimony, the jury failed to convict appellant of the charge of gross

sexual imposition involving S.M. Thus, while appellant argues that Detective Hoover's - 16 - Butler CA2013-03-048

testimony improperly "bolstered" the statements of T.M., the record demonstrates that the

jury was able to separate each victim's testimony from Detective Hoover's testimony in

reaching its verdict.

{¶ 50} Accordingly, appellant has failed to prove that, but for Detective Hoover's

testimony concerning T.M.'s prior statements, the result of the trial would have been different.

Detective Hoover's testimony does not undermine our confidence in the outcome of the

proceeding. Detective Hoover's testimony concerning T.M. accounted for only a small

portion of the trial and reiterated testimony that was already in evidence. Because appellant

is unable to show any resulting prejudice from counsel's failure to object to Detective

Hoover's testimony, he has failed to support his claim of ineffective assistance of counsel.

{¶ 51} Appellant's third assignment of error is overruled.

{¶ 52} Assignment of Error No. 4:

{¶ 53} DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO

THE STATES CLOSING ARGUMENT SINCE THE STATE OF OHIO COMMITTED

PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT.

{¶ 54} In his fourth assignment of error, appellant alleges he received ineffective

assistance of counsel because his trial counsel failed to object to statements made by the

state during closing argument. Appellant argues the state engaged in prejudicial misconduct

during closing argument when the state referred to the victims as "throw away girls" and

referenced the victims' status as poor and underprivileged. Since appellant's trial counsel did

not object to these statements during closing argument, appellant contends that he received

ineffective assistance of counsel. We disagree and overrule appellant's fourth assignment of

error.

{¶ 55} The state is entitled to a certain degree of latitude in making its concluding

remarks. State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 58. A - 17 - Butler CA2013-03-048

court will find prosecutorial misconduct only when the remarks made during closing were

improper and those improper remarks prejudicially affected substantial rights of the

defendant. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 62. "The focus of an

inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon

the culpability of the prosecutor." State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-

Ohio-4769, ¶ 56, citing State v. Vanloan, 12th Dist. Butler No. CA2008-10-259, 2009-Ohio-

4461, ¶ 32. Therefore, a finding of prosecutorial misconduct will not be grounds for reversal

unless the defendant has been denied a fair trial because of the prosecutor's prejudicial

remarks. Layne at ¶ 60.

{¶ 56} During its closing argument, the state mentioned that the three alleged victims

were underprivileged and referred to them as "throw away girls." In essence, appellant

argues that those references to the victims' poverty and family situations denied him a fair

trial by inciting the passions of the jury. As support, appellant cites to portions of the

following statements made by the state in closing argument:

Perhaps more important than the purported discrepancies or inconsistencies is the very nature of the testimony itself and what that testimony tells us. You heard testimony yesterday from [D.E.] that her mother, in order to provide for the family, scraps. She explained that that's gathering copper, stripping it, and recycling it. You heard from [T.M.] that there was a time when her family lived in a homeless shelter.

The evidence shows that we're dealing with children that are underprivileged. And that maybe as a result of that, maybe not, have suffered some educational deficits. [T.M.'s] in the fifth grade, and when I asked her what state she lived in, she hesitated and told me the United States.

These pieces of evidence show us a pattern. And the pattern that they show us is that this Defendant purposely picked [D.E.], [T.M.] and [S.M.]. Why did he do that? Why didn't we have girls in here that were captains of the basketball team, cheerleaders, student body presidents, or had mothers that are presidents of the PTA?

The State would suggest to you that the evidence shows that this - 18 - Butler CA2013-03-048

Defendant selected these girls because he viewed them as easy targets. Or in other words, kids that could be thrown away by society. And the State would suggest to you that the reason that that pattern of evidence is there is because the Defendant was banking on two things.

One, that they [the victims] would want [to] tell. And two, that if they did, nobody would believe them. He was wrong. They told. And the State would submit to you that when you weigh the credibility of these girls, when you look at those jury instructions, you will find that their testimony is worthy of your belief

***

Do you believe [D.E.]? Do you believe [T.M.]? Do you believe [S.M.]? Or do you believe that just -- these are three girls, throw- away girls, who are just making something up about this man that is the same in nature with no motive at all to lie.

{¶ 57} We conclude, after reviewing the record, that appellant's trial counsel was not

ineffective for failing to object to those statements made by the state during closing

argument. When taken in context, the statements clearly related to the victims' educational

deficiencies and were mentioned by the state to rebut some of the perceived inconsistencies

in the victims' testimonies. Additionally, the statements also reference a possible motivation

that appellant had in selecting these particular girls for his sexual advances. It does not

appear from the record that such statements inflamed the jury or tainted the verdict in any

way. The fact that the jury failed to convict appellant on one of the charges would seem to

counter appellant's argument.

{¶ 58} Finally, although certainly not dispositive, we note the trial court did instruct the

jury that closing arguments of counsel were not evidence. We must presume that the jury

followed the trial court's statements and, therefore, did not rely on the closing arguments in

their deliberations. Gray, 2012-Ohio-4769, at ¶ 62; Vanloan, 2009-Ohio-4461, at ¶ 38. In

conclusion, the record does not support a finding that the state committed prosecutorial

misconduct, nor that the appellant was denied a fair trial.

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{¶ 59} Based upon the foregoing, appellant is unable to support the notion that, had

his counsel objected, the objection would have been sustained by the trial court. Because the

comments were not objectionable, appellant's trial counsel was not ineffective for failing to

object to those statements. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, at ¶ 117. As

such, appellant's fourth assignment of error is overruled.

{¶ 60} Assignment of Error No. 1:

{¶ 61} THE STATE OF OHIO PRESENTED INSUFFICIENT EVIDENCE TO

CONVICT MR. ENGLISH OF GROSS SEXUAL IMPOSITION IN COUNT ONE AND TWO

OF THE INDICTMENT.

{¶ 62} Assignment of Error No. 2:

{¶ 63} APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

{¶ 64} Under his first and second assignments of error, appellant argues his

convictions are based on insufficient evidence and against the manifest weight of the

evidence. We disagree.

{¶ 65} "[W]hile a review of the sufficiency of the evidence and a review of the manifest

weight of the evidence are separate and legally distinct concepts, a finding that a conviction

is supported by the weight of the evidence will be dispositive of the issue of sufficiency."

State v. Brauer, 12th Dist. Warren No. CA2012-11-109, 2013-Ohio-3319, ¶ 12; State v.

Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 34; Gray, 2012-Ohio-

4769, at ¶ 79. With that in mind, we first examine whether appellant's conviction is supported

by the manifest weight of the evidence.

{¶ 66} A manifest weight challenge concerns the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

Gray at ¶ 78. In determining whether a conviction is against the manifest weight of the - 20 - Butler CA2013-03-048

evidence, the court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State v.

Thompkins, 78 Ohio St.3d 380, 387 (1997); Brauer at ¶ 13. "This discretionary power should

be exercised only in the exceptional case where the evidence weighs heavily against

conviction." State v. Hall, 12th Dist. Butler No. CA2012-01-014, 2013-Ohio-4427, ¶ 28; Gray

at ¶ 78.

{¶ 67} Appellant was convicted of two counts of gross sexual imposition in violation of

R.C. 2907.05(A)(4) for sexual contact occurring with both D.E. and T.M. The jury could not

reach a verdict on the allegations raised by S.M. and the trial court declared a mistrial with

respect to that count in the indictment. The charge of gross sexual imposition involving S.M.

was later dismissed by the state.

{¶ 68} The crime of gross sexual imposition is defined under R.C. 2907.05 (A)(4) and

provides:

[n]o person shall have sexual contact with another, not the spouse of the offender * * * when * * * 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.

Sexual contact includes "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).

{¶ 69} While an essential element of the offense of gross sexual imposition is that the

act is for the "purpose of sexual arousal or gratification" there is no requirement that there be

direct testimony regarding sexual arousal or gratification. State v. Meredith, 12th Dist.

Warren No. CA2004-06-062, 2005-Ohio-062, ¶ 13. "Whether the touching was performed

- 21 - Butler CA2013-03-048

for the purpose of sexual arousal or gratification is a question of fact to be inferred from the

type, nature, and circumstances of the contact." State v. Williams, 12th Dist. Warren No.

CA2012-08-080, 2013-Ohio-3410, ¶ 33, quoting State v. Gesell, 12th Dist. Butler No.

CA2005-08-367, 2006-Ohio-3621, ¶ 25. In making this determination, the trier of fact is

permitted to infer what the defendant's motivation was in making the physical contact with the

victim. Meredith at ¶ 13; Williams at ¶ 33.

{¶ 70} Count one of the indictment involved appellant's actions directed towards D.E.

The state called D.E. to testify in its case-in-chief. During her testimony, D.E. stated that she

was seven years old at the time of the incident and had never been married to appellant.

D.E. recounted the day of the incident alleged in the indictment and stated that while she had

been lying down in the back bedroom, appellant came into the room and touched her

"private," which she described as the part of her body that pees.

{¶ 71} Count two of the indictment involved the appellant's actions directed towards

T.M. During her testimony, T.M. stated that she was 11 years old at the time of the incident

and had never been married to appellant. T.M. testified that, on the date of the incident, she

was suddenly awakened from a nap when she felt a hand being pulled out from inside her

pants. T.M. recounted for the jury that the hand had been touching her buttocks and clearly

testified that appellant was the perpetrator.

{¶ 72} The record shows that the jury's verdict convicting appellant of two counts of

gross sexual imposition was not against the manifest weight of the evidence. Both victims

named appellant as the perpetrator and identified him during trial. D.E. and T.M both

testified that they were under 13 years old at the time of the conduct and were not married to

appellant. Both victims' respective testimony described the relevant incident in which an

erogenous zone of their bodies had been touched. See R.C. 2907.01(B).

{¶ 73} While appellant is correct in asserting that the state must prove an offender - 22 - Butler CA2013-03-048

acted with the "purpose of sexual arousal or gratification" in order to be found guilty of gross

sexual imposition, appellant fails to note that such a purpose may be inferred by the fact-

finder. Meredith, 2005-Ohio-062 at ¶ 13; Williams, 2013-Ohio-3410 at ¶ 33. In this case, the

jury could reasonably find, based on the victims' testimonies, that the touching was done for

the purpose of sexual arousal or gratification.

{¶ 74} Based on the evidence presented at trial, we conclude the jury's verdict was not

against the weight of the evidence and was therefore supported by sufficient evidence.

Appellant's third and fourth assignments of error are overruled. This case came down to the

credibility of the victims' testimonies. Although there were some inconsistencies in the

victims' testimonies, the jury, as trier of fact, was in the best position to weigh the credibility of

the witnesses. As such, the state presented sufficient evidence from which the jury could

reasonably conclude that appellant was guilty of the charges of gross sexual imposition

involving D.E. and T.M.

{¶ 75} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

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