State v. Kelley

2024 Ohio 157, 233 N.E.3d 1219

• Court: Ohio Court of Appeals
• Decided: January 18, 2024
• Docket: 111994
• Status: Published

Opinion

[Cite as State v. Kelley, 2024-Ohio-157.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111994 v. :

JOVAN KELLEY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN PART RELEASED AND JOURNALIZED: January 18, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-659964-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kerry Sowul, Assistant Prosecuting Attorney, for appellee.

Joseph V. Pagano, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Jovan Kelley, appeals from his judgment of

conviction on several sexually oriented offenses and sexually violent predator

specifications, which were rendered after a bench trial. After a thorough review of the facts and pertinent law, we affirm the findings of guilt, vacate the portion of the

trial court’s judgment imposing postrelease control, and remand the case to the trial

court for the limited purpose of resentencing relative to postrelease control and the

issuance of an appropriate judgment entry.

Procedural History

In 2021, Kelley was charged in an eight-count indictment with five

counts of gross sexual imposition (Counts 1 through 5) and three counts of rape

(Counts 6-8) relative to two victims, J.J. and J.G. Each count contained a sexually

violent offender specification.

In May 2022, Kelley filed a motion for an order to direct Frontline

Services (“Frontline”) to release all relevant records regarding mental health

treatment received by one of the victims, J.J., for an in camera inspection. As

grounds for the motion, defense counsel asserted that he believed the records were

“crucial to the defense and may provide exculpatory information.” The state

opposed the motion on the grounds that the records (1) were privileged, (2) not

within its possession, and (3) were not contemplated by Crim.R. 16. The trial court

summarily denied Kelley’s motion.

After Kelley waived his right to a jury trial, the case proceeded to a

bench trial in August 2022. After certain testimonies, the state requested to amend

the indictment to change the form of the sexual conduct and change the dates of the

crimes. The trial court granted the state’s request. The defense renewed its request for production of the Frontline

records after the testimony of the victims’ mother; the trial court again denied the

request.

At the close of state’s evidence, the defense made a Crim.R. 29 motion

for judgment of acquittal. In response, the state dismissed Count 7, rape of J.G. The

trial court denied the motion as to the remaining counts. The defense did not

present any witnesses.

Facts as Elicited at Trial

The victims — J.J. and J.G. — are sisters. During the relevant period

of time, their mother was dating Kelley. The abuse began in 2018, when J.J. was 11

years old and J.G. was nine years old and spanned an approximate eight-month

period. Thus, at all relevant times the victims were under the age of 13.

The victims’ mother started dating Kelley in early 2018.

Approximately six months after they started dating, Kelley moved into the house in

Cleveland where mother, J.J., and J.G. lived. Both victims initially got along with

Kelley.

Kelley’s relationship with the girls changed in the fall of 2018,

however. J.J. testified that Kelley would allow her to use an old cell phone of his to

make Tik-Tok videos. On one particular occasion in the fall of 2018 when J.J. asked

Kelley for his phone, Kelley, who was laying down on a couch in the living room with

a thin sheet over him, told J.J. that she could use the phone if she massaged his

“hand.” The air conditioner was on in the house, and Kelley told J.J. his hand was cold. J.J. agreed to give Kelley the massage. Kelley’s hands remained covered by

the sheet.

While giving the massage, J.J. realized that she was massaging

Kelley’s penis, not his hand. J.J. tried to move her hand “up” so that it would not be

touching Kelley’s penis, but Kelley moved it back “down.” J.J. testified that she was

certain she was massaging Kelley’s penis because she knows what a hand feels like

and what she was massaging had a different feel. J.J. further testified that Kelley set

a timer for the massage and if she stopped massaging, he would add more time.

J.J. testified that a second incident occurred in the spring of 2019, and

was much like the first incident, with Kelley telling her she could use his cell phone

if she massaged his “hand.” As with the first incident, Kelley had his hands under a

sheet. J.J. testified that she knew she was massaging his penis because she could

see Kelley’s penis “[t]hrough the imprint on the sheet.”

A third incident happened the following day, and as with the two

other incidents was preceded by J.J.’s request to use Kelley’s phone. J.J. testified

that Kelley did not have a sheet on or covering him during this incident, but he was

wearing shorts, and she massaged his penis over his shorts. And during this

incident, Kelley’s hands were clasped and on his chest.

When the third massage was over, J.J. had a conversation in the

bathroom with her sister, J.G. After this conversation, she “realized that [she] was

right about what [she] thought [she] was really massaging.” J.G. testified that her relationship with Kelley began to change when

she felt that Kelley was invading her privacy. J.G. testified, for example, about an

incident where Kelley found her journal and turned it over to her mother.

J.G. testified that Kelley also had sexual encounters with her, the first

occurring in the fall of 2018, when Kelley asked her to massage his “hand.” On that

occasion, J.G. and Kelley were in the living room watching a movie. They were both

on the couch — Kelley was lying down with a blanket over his stomach and legs and

J.G. was seated by his side.

J.G. started to massage Kelley’s “hand” over the top of the blanket but

realized that what she was massaging did not “feel like a hand,” rather it felt

“squishy.” According to J.G., Kelley’s hand was directly on his penis, and she was

massaging his penis. J.G. testified that as she massaged Kelley’s penis, Kelley “had

his head back with his eyes closed” and made several “grunts.”

J.G. testified that the “same thing” happened a week or two later. This

time, Kelley called J.G. to the living room to watch a movie with him. Kelley had a

blanket covering him and asked J.G. to massage his “hand.” J.G. testified that

Kelley’s hand was “where a man’s penis is” and she massaged his penis over the

blanket. After this second incident, J.G. researched “how to do a hand job” to

determine if that was what she was doing when she gave Kelley the massages.

J.G. also testified that the massages occurred on two other occasions,

but she was unable to give details about the circumstances surrounding them. She

mentioned these other massages for the first time during the trial. J.G. corroborated J.J.’s testimony about the conversation the two had

in the bathroom. A day or two after that conversation, J.J., J.G., their mother, and

Kelley went to a restaurant to pick up a carry-out order. Their mother went into the

restaurant to pick up the order, while the victims and Kelley stayed in the car. The

two victims confronted Kelley about the massages. Kelley denied the accusations

and told the girls that they were going to tell their mother what they were accusing

him of when she returned.

Upon the mother’s return to the car, J.J. disclosed to her mother that

Kelley had been having her massage his penis in exchange for use of his cell phone.

Mother, Kelley, and the girls went home, at which time mother contacted her mother

or the victims’ maternal grandmother. The grandmother came to the home, and the

victims disclosed the abuse to her.

Because of their professional pursuits, both mother and grandmother

were bound as mandatory reporters of alleged sexual abuse. Neither one reported

the abuse the girls had disclosed to them at that time, however. Mother had Kelley

leave her house for a period of time.

Mother allowed Kelley to come back to her home approximately one

month later. Mother requested that Kelley apologize to the girls. J.G. testified that

Kelley told them he would never do what they had accused him of because he had

sisters. Mother’s relationship with her daughters deteriorated around this time.

J.G. testified that after Kelley returned to their house, he raped her

one evening. According to J.G., she, her mother, and Kelley were watching a movie in the living room. J.G. remembered that she was wearing “Strawberry Shortcake”

pajama bottoms. Her mother, who J.G. described as a heavy sleeper, was asleep.

J.G. started to doze off but was awakened by a pain in her lower back. She described

the pain as coming from her “butt.” J.G. turned around and saw Kelley “right there,”

standing over her with his “two hands * * * on both of [her] sides.” J.G. testified that

while Kelley was standing over her, she felt pain “in [her] butt.” J.G. initially thought

the pain was from dance activities that she had been involved in at the time and

dismissed it.

The next morning when J.G. woke up, she was still suffering from

pain in her “butt.” J.G. went to the bathroom and discovered that she was bleeding,

but she was not menstruating. J.G. testified that she bled for several days and was

in pain for several weeks.

In the spring of 2019, there was a fire in the house where the victims,

their mother, and Kelley had been living, which caused them to move into the

grandmother’s house in Cleveland Heights. According to mother, Kelley was

“distant” from the family during this time.

J.G. testified to another rape that occurred in August 2019. On that

occasion, J.G. was playing a video game in her mother’s room. She was on her

mother’s bed, and Kelley was lying on the bed with her. J.G. testified that she was

wearing “baggy” shorts and she “felt something trying to get into [her] pants.” The

“something” was Kelley’s hand; he was able to get his hand into J.G.’s shorts and put

his finger “where a baby comes out.” One day in August 2019, Kelley drove mother to the hairdresser.

When Kelley returned to get mother, he informed her that there had been a “big

blow up.” Mother later learned that J.J. and J.G. had disclosed the abuse to her

brother, the girls’ uncle. Kelley subsequently moved out of the Cleveland Heights

home.

In January 2020, mother took J.J. to Frontline after J.J. returned

home from an out-of-state trip. At Frontline, J.J. made disclosures about something

that happened on her trip as well as the allegations about Kelley. Frontline

transferred J.J. to a hospital, where she gave more details about the incidents with

Kelley. The medical records from the hospital, which were provided to the defense

during discovery, reference J.J.’s disclosures about Kelley made at Frontline.

On this testimony, the trial court found Kelley guilty of the remaining

counts and specifications. At sentencing, the court imposed a prison term of two

years to life on Counts 1-5 (gross sexual imposition); and life without parole on

Counts 6 and 8 (rape). The trial court ordered all counts to be served consecutively.

The court advised Kelley of his duties to register as a sex offender pursuant to R.C.

2950.032 and classified him as a Tier III sex offender. Although the trial court’s

judgment of conviction provides postrelease-control advisements, the trial court

failed to so advise Kelley at the sentencing hearing.

Assignments of Error

I. Appellant’s Fifth, Sixth, and Fourteenth Amendment rights and Art. I, Sec. 10 of the Ohio Constitution were violated where relevant and potentially exculpatory records from Frontline were not disclosed to defense counsel due to the trial court’s denial of counsel’s motion to compel them or due to the failure to properly secure their production.

II. The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.

III. Appellant’s convictions are against the manifest weight of the evidence.

IV. Appellant was denied a fair trial and effective assistance of counsel where the State was improperly permitted to lead its witnesses.

V. The court erred by allowing several amendments to the indictment following trial and over appellant’s objection.

VI. The record is insufficient to support the court’s conclusory findings regarding the sexual violent predator specifications.

VII. The court erred by imposing postrelease control in its sentencing journal entry when it was not done in open court.

Law and Analysis

No Abuse of Discretion in Denying the Motion to Compel

In his first assignment of error, Kelley contends that the trial court

erred in denying his motion to compel J.J.’s mental health records from Frontline.

We disagree.

An appellate court generally reviews a trial court’s judgment on

discovery matters for an abuse of discretion. Wall v. Ohio Permanente Med. Group

Inc., 119 Ohio App.3d 654, 661, 695 N.E.2d 1233 (8th Dist.1997). However, a trial

court’s interpretation of law governing privileged matters is a question of law that we review de novo review. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-

Ohio-6275, 943 N.E.2d 514, ¶ 13, citing Med Mut. of Ohio v. Schlotterer, 122 Ohio

St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237. The appropriate standard of review

depends on whether the asserted privilege presents a question of law or a question

of fact. Randall v. Cantwell Mach. Co., 10th Dist. Franklin No. 12AP-786 2013-

Ohio-2744, ¶ 9. When interpreting statutory language to determine if requested

information is privileged, we apply a de novo standard of review. Id. When the

claimed privilege requires review of factual questions, an abuse-of-discretion

standard applies. Id.

J.J.’s mental health records are privileged1 — Kelley has not disputed

as much. Thus, our review here involves factual questions and therefore is under

the abuse-of-discretion standard. An abuse of discretion “has been described as

including a ruling that lacks a ‘sound reasoning process.’” State v. Morris, 132 Ohio

St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d

597 (1990). This is “a deferential review,” and “[i]t is not sufficient for an appellate

court to determine that a trial court abused its discretion simply because the

appellate court might not have reached the same conclusion or is, itself, less

persuaded by the trial court’s reasoning process than by the countervailing

arguments.” Morris at id., citing AAAA Ents., Inc. at id.

1 See R.C. 2317.02 and 4732.19. Kelley filed a motion to compel in camera inspection of mental health

records regarding treatment victim J.J. received at Frontline. In his motion, Kelley

contended that “the records are crucial to the defense and may provide exculpatory

information.” Kelley did not offer a basis for his claim. The state opposed the

motion, contending that the (1) records were not in its possession, (2) records were

privileged, and (3) discovery of the records was not contemplated by Crim.R. 16.

The trial court summarily denied Kelley’s motion.

Under Crim.R. 16, which governs discovery in criminal cases, the

state is required to

provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule: (3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places; (4) Subject to division (D)(4) and (E) of this rule, results of physical or mental examinations, experiments or scientific tests[.]

(Emphasis added.) Crim.R. 16(B)(3) and (4).

In regard to sexual assault cases, Crim.R. 16 provides as follows:

In cases of sexual assault, defense counsel, or the agents or employees of defense counsel, shall have the right to inspect photographs, results of physical or mental examinations, or hospital reports, related to the indictment, information, or complaint as described in section (B)(3) or (B)(4) of this rule.

(Emphasis added.) Crim.R. 16(E). The trial testimony revealed that J.J. went to Frontline because she

was suicidal. Thus, the treatment J.J. received at Frontline was not relative to the

sexual abuse allegations, rather, it was for mental health treatment due to her

suicidal ideation. This court considered the same scenario in State v. Brown, 8th

Dist. Cuyahoga No. 86544, 2006-Ohio-2573. In Brown, while receiving treatment

for a drug overdose, the victim disclosed that she had been raped four months prior.

A criminal investigation and charges ensued as a result of the victim’s disclosure.

During discovery, the defendant sought access to the victim’s medical records

generated as a result of treatment for the overdose. The trial court denied the

defendant’s request.

This court affirmed, finding no Crim.R. 16 violation. The Brown

Court reasoned that “[t]he documents in question clearly were the result of a

treatment for a drug overdose”; they were not generated in connection with the

sexual assault case. Id. at ¶ 54. Moreover, no sexual assault examination occurred,

and the state did not offer medical evidence relating to the sexual assault that was

derived from the victim’s overdose treatment.

Likewise, here, J.J. made disclosures about Kelley’s abuse while being

treated for suicidal ideation at Frontline. The treatment J.J. received at Frontline

was not for the sexual assaults. Moreover, the state did not offer medical evidence

relating to the sexual assaults that was derived from J.J.’s mental health treatment

at Frontline. We further note that, although the substance of Kelley’s motion

requested that Frontline produce the records, the motion was not sent to Frontline.

Rather, it was sent to the state, and it was the state that opposed it, in part, because

the records were not in its possession. A defendant “is not entitled to records that

are not in the possession, custody or control of the State.” State v. Bolling, 2d Dist.

Montgomery No. 20225, 2005-Ohio-2509, ¶ 56, citing State v. Boehm, 2d Dist.

Montgomery No. 16335, 1997 Ohio App. LEXIS 6128 (Dec. 31, 1997); see also State

v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 51 (Crim.R. 16 “does

not require the State to obtain items requested by the defense that the State does not

already possess.”).

Indeed, after the defense’s renewal of its motion to compel at trial, the

state reiterated that it could not provide the records because they were not in its

possession. The defense arguably conceded the state’s position:

The State replied [to the motion to compel] * * * [that] the records were not in their possession. There’s no ability or obligation to turn them over. So I didn’t previously object to the Court’s ruling. Just ask for the opportunity to preserve it now in light of what we learned [from mother’s testimony] * * * potentially could have been exculpatory evidence.

Tr. 259.

Our review of the mother’s testimony does not provide a ground for

release of the records. Specifically, mother testified that the disclosure of the

“greater detail” of the abuse occurred at the hospital when J.J. was interviewed by

the police, not at Frontline. And mother admitted that J.J. had previously told her about the abuse prior to J.J. going to Frontline and the hospital. When questioned

by the defense if what J.J. had previously disclosed to her was different from what

J.J. disclosed at the hospital, mother testified, “It wasn’t different, it was just further

detail. It was the same thing. I didn’t know the extent of what she said that night.”

Thus, Kelley’s contention that “it became evident during trial testimony that these

records may have included exculpatory evidence” is belied by mother’s testimony.

Thus, the record demonstrates that the details of the allegations were

revealed at the hospital, not at Frontline. Further, J.J.’s medical records provided

to the defense during discovery were replete with the information disclosed at

Frontline, and the disclosures in the medical records are almost identical to J.J.’s

trial testimony.

The United States Supreme Court has held that, under certain

circumstances, a defendant is entitled to have confidential records reviewed in

camera by the trial court. Pennsylvania v. Ritchie, 480 U.S. 39, 58, 107 S.Ct. 989,

94 L.Ed.2d 40 (1987). However, the Court also held that a defendant may not

require the trial court to search through confidential records “without first

establishing a basis for his [or her] claim that it contains material evidence.” Id. at

58, fn. 15.

We are not persuaded by Kelley’s citation to In re C.A., 8th Dist.

Cuyahoga No. 102675, 2015-Ohio-4768, for the proposition that the trial court

should have conducted an in camera inspection of the Frontline records. At issue in

In re C.A., were records from the Cuyahoga County Division of Children and Family Services (“CCDCFS”) “relating to the subject incident.” (Emphasis added.) Id. at ¶

75. And a police report obtained by the juvenile delinquent “contained certain

purported inconsistent statements” by the victim. Id. at ¶ 84. On that record, this

court found that the trial court abused its discretion by granting the state’s motion

to quash the subpoena without first conducting an in camera review of the agency

documents.

Similar to the juvenile in In re C.A., Kelley subpoenaed the victims’

records from CCDCFS, requesting “all records related to any investigation * * *

related to alleged incidents of sexual assault.” The state filed a motion to quash,

which the trial court denied, thus granting Kelley access to those records after an in

camera inspection. The Frontline records were distinguishable because they were

relative to J.J.’s mental health treatment, not treatment she sought for the sexual

assaults.

Further, In re C.A. does not stand for the proposition that whenever

a defendant seeks records, they are automatically subject to being turned over for an

in camera review. This court noted the balancing of the competing interests that

must take place — the due process rights of the accused versus a victim’s privacy

rights. On the record presented in In re C.A., the panel found that the juvenile

delinquent’s “counsel made a sufficient showing that the requested CCDCFS records

could contain relevant information material to his defense.” Id. at ¶ 81, fn. 4.

In this case, Kelley failed to make a sufficient showing that the

Frontline records contained any material or exculpatory evidence. The trial court did not abuse its discretion in denying Kelley’s motion to compel without an in

camera inspection. The first assignment of error is therefore overruled.

The Evidence was Sufficient to Support the Convictions

In his second assignment of error, Kelley contends that the trial court

erred in denying his Crim.R. 29 motion for judgment of acquittal because the

evidence was insufficient to support his convictions.

Crim.R. 29(A) provides that a court “shall order the entry of the

judgment of acquittal of one or more offenses * * * if the evidence is insufficient to

sustain a conviction of such offense or offenses.” “Because a Crim.R. 29 motion

questions the sufficiency of the evidence, ‘[w]e apply the same standard of review to

Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.’”

Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37,

quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

Where a party challenges the sufficiency of the evidence supporting a

conviction, a determination of whether the state has met its burden of production at

trial is conducted. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20,

¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). An

appellate court reviewing sufficiency of the evidence must determine “‘whether,

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

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

reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818

N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. With a sufficiency inquiry, an appellate court does

not review whether the state’s evidence is to be believed but whether, if believed, the

evidence admitted at trial supported the conviction. State v. Starks, 8th Dist.

Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. A sufficiency

of the evidence argument is not a factual determination, but a question of law. Id.

Kelley first contends that the evidence was insufficient to support the

two counts of rape of J.G. We disagree.

Kelley was charged in Counts 6 and 8 with rape in violation of

R.C. 2907.02(A)(1)(b), which provides that “[n]o person shall engage in sexual

conduct with another who is not the spouse of the offender * * * when * * * [t]he

person is less than thirteen years of age, whether or not the offender knows the age

of the other person.” Sexual conduct is “the insertion, however slight, of any part of

the body or any instrument, apparatus, or other object into the vaginal or anal

opening of another.” R.C. 2907.01(A). Ohio courts have consistently held that a

victim’s testimony alone is sufficient to support a rape conviction. State v.

Blankenship, 8th Dist. Cuyahoga No. 77900, 2001 Ohio App. LEXIS 5520, 11 (Dec.

13, 2001). “There is no requirement that a rape victim’s testimony be corroborated

precedent to conviction.” (Citation omitted.) Id.

At all relevant times, J.G. was under 13 years old. The testimony

relative to the first rape was that J.G., her mother, and Kelley were watching a movie

in the living room. Her mother, a heavy sleeper, was asleep. J.G. started to doze off

but was awakened by a pain in her lower back. She described the pain as coming from her “butt.” J.G. turned around and saw Kelley “right there,” standing over her

with his “two hands * * * on both of [her] sides.” J.G. testified that while Kelley was

standing over her, she felt pain “in [her] butt.”

The next morning when J.G. woke up, she was still suffering from

pain in her “butt.” J.G. went to the bathroom and discovered that she was bleeding,

but she was not menstruating. J.G. testified that she bled for several days and was

This testimony was sufficient to support anal rape. A rational finder

of fact could determine that, Kelley standing over J.G. with his hands on either side

of her, while she experienced pain in her “butt” that persisted for weeks and caused

her to bleed for days, created a reasonable inference that Kelley anally penetrated

J.G.

In regard to the second rape, J.G. was playing a video game in her

mother’s room. She was on her mother’s bed, and Kelley was lying on the bed with

her. J.G. testified that she was wearing “baggy” shorts and she “felt something trying

to get into [her] pants.” The “something” was Kelley’s hand; he was able to get his

hand into J.G.’s shorts and his finger went inside “where a baby comes out.” A “rape

victim’s testimony that an offender inserted his finger inside [the victim’s] vagina is

sufficient evidence of penetration.” State v. Roberts, 1st Dist. Hamilton No. C-

040547, 2005-Ohio-6391, ¶ 64.

Kelley contends that the evidence was insufficient because the state

asked leading questions to elicit J.G.’s testimony and because there were some inconsistencies in the victim’s testimony. In regard to the leading nature of the

state’s questions, as will be discussed in more detail in addressing the fourth

assignment of error, such questioning is permissible of a child victim. And in regard

to Kelley’s contention about inconsistencies in J.G.’s testimony, that is an issue of

credibility, which is not part of a sufficiency analysis. See, e.g., State v. D.S.,

8th Dist. Cuyahoga No. 109346, 2021-Ohio-1725, ¶ 42 (“[C]redibility is not a factor

in the sufficiency analysis.”).

On the record before us, the evidence was sufficient to support the

rape convictions.

In regard to the gross sexual imposition convictions, Kelley was

charged under R.C. 2907.05, which provides in pertinent part that

[n]o 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 * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person.

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

Sexual contact means “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). “‘[T]here is no requirement that there be direct testimony

regarding sexual arousal or gratification.’” In re J.A., 8th Dist. Cuyahoga No. 111743,

2023-Ohio-222, ¶ 28, quoting In re D.W., 8th Dist. Cuyahoga No. 110960, 2022-

Ohio-1407, ¶ 23. “‘The purpose of the contact may be inferred from the type, nature, and circumstances of the contact.’” In re J.A. at id., quoting In re D.W. at id. This

court has found sufficient evidence to establish sexual contact for a gross sexual

imposition on a victim’s testimony that the defendant had the victim “touch and

squeeze” his penis. See State v. Tate, 8th Dist. Cuyahoga No. 98221, 2013-Ohio-

370, ¶ 21.

The state presented sufficient evidence to support the gross sexual

imposition convictions. It is undisputed that J.J. and J.G. were under 13 years old

when the crimes occurred. J.J. testified that Kelley had her massage his penis three

times — twice over a blanket and the third time over his shorts. Likewise, J.G.

testified that Kelley made her massage his penis on four occasions.

In his brief, Kelley emphasizes that trial was the first time J.G. told of

a total of four massages for the first time during the trial. That is true; but Kelley

was only charged with two counts of gross sexual imposition relative to J.G. Further,

the matter was tried to the bench, not a jury. In a bench trial, the trial judge is

presumed to know the law and to consider only the relevant, material, and

competent evidence in arriving at a decision. See State v. Bays, 87 Ohio St.3d 15,

26-27, 716 N.E.2d 1126 (1999). The testimony about the two unindicted massages

did not contribute to the two gross sexual imposition convictions relative to J.G.

J.G. testified in detail to the two indicted charges, which involved

watching a movie with Kelley, who had a blanket covering him, and who had her

massage his penis under the blanket. J.G.’s testimony provided sufficient evidence to support the two counts of gross sexual imposition relative to Kelley’s sexual

contact with J.G.

On this testimony, the evidence was sufficient to support the five

counts of gross sexual imposition. The second assignment of error is overruled.

The Convictions were not Against the Manifest Weight of the Evidence

In his third assignment of error, Kelley challenges his convictions as

being against the weight of the evidence.

A manifest weight challenge questions the credibility of the evidence

presented and examines whether the state met its burden of persuasion at trial.

State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. A reviewing court “weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d

717 (1st Dist.1983), paragraph three of the syllabus. A reversal on the basis that a

verdict is against the manifest weight of the evidence is granted “only in the

exceptional case in which the evidence weighs heavily against the conviction.”

Martin at id.

In this assignment of error, Kelley advances the same arguments he

set forth in his sufficiency challenge. Here is where we can consider his credibility

argument. Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding credibility of

witnesses and the weight of testimony are primarily for the trier of fact. See, e.g.,

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus; Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984). The trier of fact is best able “to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” Seasons Coal Co., Inc. at id.

Upon review of the record, this is not the exceptional case in which

the trier of fact lost its way. J.J. and J.G. testified to numerous instances of sexual

contact and sexual conduct that Kelley engaged in with them. They provided

supporting details to their accounts. As the trier of fact, the trial court was in the

best position to weigh the evidence and the credibility of J.J. and J.G. and was

“entitled to believe or disbelieve all, part, or none” of their testimonies. In re D.B.,

8th Dist. Cuyahoga No. 110788, 2022-Ohio-936, ¶ 19. To the extent that there were

inconsistencies in their testimony, they did not render their accounts incredible.

The third assignment of error is overruled.

Counsel was Not Ineffective for Failing to Object to Leading Questions

In his fourth assignment of error, Kelly contends that his counsel was

ineffective for not objecting to the state’s leading questions posed to the victims.

The Sixth Amendment to the United States Constitution and Article

I, Section 10 of the Ohio Constitution provide that defendants in all criminal

proceedings shall have the assistance of counsel for their defense. The United States Supreme Court has recognized that “the right to counsel is the right to effective

assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).

To establish ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable performance and that he or she was prejudiced by that deficient

performance, such that but for counsel’s error, the result of the proceedings would

have been different. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854

N.E.2d 1038, ¶ 205, citing Strickland at 687-688. Counsel’s errors must be so

serious as to render the result of the trial unreliable. State v. Jamie, 8th Dist.

Cuyahoga No. 102103, 2015-Ohio-3583, ¶ 24.

Under Evid.R. 611 (C), “leading questions should not be used on the

direct examination of a witness except as may be necessary to develop the witness’

testimony.” However, it is within the trial court’s discretion to allow leading

questions on direct examination. See Staff Note, Evid.R. 611(C); State v.

D’Ambrosio, 67 Ohio St.3d 185, 190, 616 N.E.2d 909 (1993).

In State v. Johnson, 8th Dist. Cuyahoga No. 82340, 2003-Ohio-6634,

this court ruled that it is wholly within the trial judge’s discretion to permit the state

to ask leading questions of its own witness. Id. at ¶ 11. Courts have continued to

emphasize the latitude given the trial court in such matters, especially in cases

involving children who are the alleged victims of sexual offenses. See State v. Miller,

44 Ohio App.3d 42, 45, 541 N.E.2d 105 (6th Dist.1988); State v. Madden, 15 Ohio App.3d 130, 133, 472 N.E.2d 1126 (12th Dist.1984); State v. Matheny, 5th Dist.

Tuscarawas No. 2001 AP070069, 2002-Ohio-1120, ¶ 82-83; State v. Mader, 8th

Dist. Cuyahoga No. 78200, 2001 Ohio App. LEXIS 3842, 7 (Aug. 30, 2001).

Moreover, a defense counsel’s failure to object to leading questions during the state’s

direct examination “will almost never rise to the level of ineffective assistance of

counsel.” State v. Wilson, 8th Dist. Cuyahoga No. 107806, 2019-Ohio-4056, ¶ 29.

There was no abuse of discretion here in allowing the state to ask

leading questions to the child victims. The fourth assignment of error is overruled.

The Trial Court did not Abuse its Discretion by Allowing the State to Amend the Indictment

For his fifth assignment of error, Kelley contends that the trial court

erred by allowing the state to amend the indictment.

Pursuant to Crim.R. 7(D), a trial court may amend an indictment “at

any time before, during or after a trial” if “no change is made in the name or identity

of the crime charged.” The amendment may be to change “any defect, imperfection,

or omission in form or substance, or of any variance with the evidence.” Id. In

challenging an amendment to an indictment, a defendant must show not only that

the trial court abused its discretion in allowing the amendment, but that the

amendment prejudiced his or her defense. State v. Buchanan, 2017-Ohio-1361, 88

N.E.3d 686, ¶ 21 (8th Dist.), citing State v. Beach, 148 Ohio App.3d 181, 2002-Ohio-

2759, 772 N.E.2d 677, ¶ 23 (1st Dist.). “A change in the name or identity of a crime charged occurs when the

offense alleged in the indictment and the offense alleged in the amended indictment

contain different elements that require independent proof.” Buchanan at ¶ 22.

“Amending a rape charge from one type of sexual conduct to another type of sexual

conduct changes neither the name nor the identity of the rape offense.” State v.

Abdullah, 10th Dist. Franklin No. 05AP-1316, 2006-Ohio-5412, ¶ 24, citing State v.

Martin, 10th Dist. Franklin No. 05AP-818, 2006-Ohio-2749, ¶ 9. Furthermore,

the date and time of a rape is not an essential element of the offense. State v.

Collinsworth, 12th Dist. Brown No. CA2003-10-012, 2004-Ohio-5902, ¶ 22.

The amendments here did not change the name or identity of the

crimes charged — they only changed the dates of the offenses and the type of sexual

conduct to conform to the testimony. Furthermore, Kelley failed to demonstrate

how a change in the indictment dates or type of sexual conduct prejudiced him or

significantly altered his defense. Accordingly, the trial court did not abuse its

discretion in permitting amendments to the dates and types of sexual conduct to

conform to the evidence presented at trial. Kelley’s fifth assignment of error is

overruled.

The Sexually Violent Predator Specifications were Supported by Sufficient Evidence

In his sixth assignment of error, Kelley challenges the trial court’s

“conclusory findings” regarding the sexually violent predator specifications.

According to Kelley, the trial court found him guilty of the specifications “[w]ithout any analysis whatsoever” and despite him not having any prior convictions for

sexual offenses.

A sexually violent predator is “a person who, on or after January 1,

1997, commits a sexually violent offense and is likely to engage in the future in one

or more sexually violent offenses.” R.C. 2971.01(H)(1). R.C. 2971.01(H)(2) provides

a list of factors that the trier of fact may consider in determining whether an offender

“is likely to engage in one or more sexually violent offenses” in the future. Included

in those factors is whether “[a]vailable information or evidence suggests that the

person chronically commits offenses with a sexual motivation” and “[a]ny other

relevant evidence.” R.C. 2971.02(H)(2)(c) and (f). Further, this court has held that

“‘R.C. 2971.01(H) allows an offender to be classified and sentenced as a sexually

violent predator based on the convictions of the underlying offense contained in the

indictment.’” State v. Williams, 8th Dist. Cuyahoga No. 107748, 2019-Ohio-2335,

¶ 72, quoting State v. Boynton, 8th Dist. Cuyahoga No. 93784, 2010-Ohio-4670, ¶ 5.

Here, the trial court indicated that its judgment in regard to the

specifications was based on the trial testimony. Kelley’s counsel neither objected

nor requested the court to make findings. In State v. Fisher, 8th Dist. Cuyahoga No.

90997, 2009-Ohio-476, this court held that a defendant waives his or her challenge

to a sexually violent offender specification when he or she does not make a request

for findings from the trial court. Id. at ¶ 66. “‘An appellate court need not consider

an error which a party complaining of the trial court’s judgment could have called,

but did not call, to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.’” Id., quoting State v. Williams, 51 Ohio

St.2d 112, 117, 364 N.E.2d 1364 (1977). Because Kelley did not object to the trial

court’s judgment, or request findings, he has waived this issue on appeal.

Notwithstanding the waiver, we find that there was sufficient

“[a]vailable information or evidence” to suggest that Kelley “chronically commits

offenses with a sexual motivation” and “other evidence” under R.C.

2971.02(H)(2)(c) and (f) to support the trial court’s finding that Kelley was likely to

engage in one or more sexually violent offenses in the future. The record reveals

that Kelley abused two young children over an approximate eight-month period.

Kelley, who was in a position of trust with the victims, groomed them by rewarding

them with use of his cell phone in exchange for their compliance with his sexual

requests. Further, Kelley escalated his abuse — from gross sexual imposition to rape

— after J.J. and J.G. disclosed the abuse to their mother and grandmother. This

evidence was sufficient to support the trial court’s judgment on the specifications.

The fifth assignment of error is overruled.

The Portion of the Trial Court’s Judgment Imposing Postrelease Control is Contrary to Law

For his final assignment of error, Kelley contends that the trial court

erred by imposing postrelease control in its sentencing entry because he was not

advised of it at his sentencing hearing. We agree.

It is well established that a trial court must properly impose

postrelease control or that portion of the sentence is invalid. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 8; State v. Qualls, 131 Ohio St.3d

499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. To properly impose postrelease control,

the trial court must notify the defendant at the sentencing hearing (1) whether

postrelease control is discretionary or mandatory; (2) the length of the postrelease

control term; and (3) the consequences for violating postrelease control. Grimes at

¶ 1. These notifications must also be incorporated into the trial court’s sentencing

journal entry. Id. at ¶ 1, 13. Any sentence imposed without postrelease control

notifications is contrary to law. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-

6085, 817 N.E.2d 864, ¶ 23.

Because the trial court failed to advise Kelley of postrelease control at

the sentencing hearing, the portion of its judgment imposing postrelease control is

contrary to law. The sixth assignment of error is sustained. The portion of the trial

court’s judgment imposing postrelease control is vacated, and the case is remanded

for resentencing for the sole purpose of advising Kelley of postrelease control and

reissuing an appropriate judgment.

Convictions affirmed in part; postrelease control vacated in part; case

remanded in part for further proceedings consistent with this opinion.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_______________________ MICHAEL JOHN RYAN, JUDGE

KATHLEEN ANN KEOUGH, A.J., CONCURS; EMANUELLA D. GROVES, J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION)

EMANUELLA D. GROVES, J., CONCURRING IN PART AND DISSENTING IN PART:

Respectfully, I dissent from the majority’s resolution of Kelley’s first

assignment of error. I find Kelley’s argument persuasive and would sustain the error

and remand for the trial court to determine if the Frontline records contain material,

exculpatory evidence, which would warrant a new trial.

Although I concur with the majority that no Crim.R. 16 violation

occurred, in my view Crim.R. 17, which addresses nonparty subpoenas is the

appropriate lens from which to review these facts. Notably, Kelley did not cite which

rule he relied on in his motion to compel Frontline to turn over records for in camera

review, nor did he specifically cite Crim.R. 17 in his brief. However, Kelley’s argument,

focusing on violations of his constitutional rights due to the trial court’s failure to

conduct either an in camera review or evidentiary hearing on his motion, merits

consideration under the applicable legal framework. Regardless of the applicable rule,

“it is imperative to the function of courts that compulsory process be available for the

production of evidence needed either by the prosecution or by the defense.” State ex rel. Thomas v. McGinty, 2019-Ohio-5129, 137 N.E.3d 1278, ¶ 36 (8th Dist.),

quoting United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

Specifically, we must address whether Kelley’s due process rights were

infringed when the trial court denied his motion concerning a nonparty subpoena

without conducting either an in camera review or evidentiary hearing. I believe we are

required to conduct our analysis of Kelley’s constitutional claims using the appropriate

rule to determine the merits of his arguments.

In his motion to compel, Kelley argued the records were crucial to the

defense and may provide exculpatory information. On review, both Kelley and the

state addressed Crim.R. 16 in their briefs. However, the proper analysis for

determining a motion concerning a nonparty subpoena is prescribed by Crim.R. 17

(governing issuance of subpoenas to nonparties in criminal cases) In re Subpoena

Duces Tecum Served upon Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, 796 N.E.2d 915,

and most recently, codified in R.C. 2930.071.2

I concur with the majority that Kelley is not automatically entitled to an

in-camera review of records held by a nonparty. He must first overcome his burden of

demonstrating that the requested records are material and relevant. “The court’s

determination of whether a subpoena is unreasonable or oppressive is separate from

its decision to conduct an in-camera inspection of documents that the trial court

ultimately orders to be filed.” Potts at ¶ 14.

2 R.C. 2930.071 codified both Crim.R. 16 and Crim.R. 17 effective April 6, 2023. The crux of the issue before us is whether the trial court was required

to conduct an evidentiary hearing in order for Kelley to offer evidence sufficient to

meet his burden. “When deciding a motion to quash a subpoena under Crim.R. 17,

the trial court must conduct an evidentiary hearing.” Olmsted Falls v. Bowman, 8th

Dist. Cuyahoga No. 99012, 2014-Ohio-109, ¶ 11, Potts, quoting Nixon, 418 U.S.

683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). A trial court unilaterally determining

whether the proponent has met their burden without a hearing deprives the

proponent of due process under the law. Bowman at ¶ 12.

Kelley argues that he was denied due process when the court failed to

hold an evidentiary hearing and conduct an in camera inspection of Frontline records

before denying his motion to compel. The state opposed Kelley’s motion to compel

Frontline’s compliance. The state argued that the records were not in their possession

and were privileged, and Crim.R. 16 does not contemplate the discovery of the

documents under these facts. The record is silent about why Frontline failed to file a

motion to quash the subpoena under Crim.R. 17. However, the trial court effectively

quashed the subpoena when it denied Kelley’s motion to compel. I would find the trial

court erred when it failed to conduct an evidentiary hearing, for two reasons.

First, the subpoena was directed to Frontline; therefore, Crim.R. 17 is

the applicable rule. Crim.R. 16 generally governs discovery between the state and the

defense in a criminal matter, but Crim.R. 17 governs subpoenas issued to a nonparty,

like Frontline. The rule provides the procedure when a nonparty resists a subpoena.

Crim.R. 17(C) states in relevant part: A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein; but the court, upon motion made promptly and in any event made at or before the time specified in the subpoena for compliance therewith, may quash or modify the subpoena if compliance would be unreasonable or oppressive.

(Emphasis added.) Crim.R. 17.

The Ohio Supreme Court adopted the four-step test in Nixon to

determine whether a subpoena duces tecum is unreasonable or oppressive.

Under the Nixon test, the party moving to compel the production of documents must show:

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise reasonably obtainable in advance of trial with due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the request is made in good faith and is not merely a fishing expedition.

Potts at ¶ 12 (quoting Nixon at 699-700), State v. Hammond, 4th Dist. Ross No.

18CA3662, 2019-Ohio-4253 at ¶ 13.

I would find that Kelley’s motion to compel triggered a hearing to

determine if the subpoena was unreasonable or oppressive, consistent with the

Potts/Nixon test. Kelley’s motion to compel enforcement of the subpoena satisfied the

requirement that “the court, upon motion made promptly, * * * may quash or modify

the subpoena if compliance would be unreasonable or oppressive.”

(Emphasis added.) Crim.R. 17(C). In this case, the trial court did not conduct a hearing nor make findings

considering the Nixon test. Accordingly, I would find that the court abused its

discretion when it summarily denied Kelley’s motion without an evidentiary hearing.

The second reason I dissent from the majority on Kelley’s first

assignment of error concerns whether the records are privileged. Once a trial court

has determined that the proponent of the motion to compel a subpoena duces tecum

has satisfied the Nixon test, the court is then required to address any claims of privilege

by conducting an in camera review of the relevant records. Hammond at ¶ 14.

Disputes over whether the information sought in discovery is privileged is a question

of law that is reviewed de novo. Morawski v. Davis, 8th Dist. Cuyahoga No. 112033,

2023-Ohio-1898, ¶ 8. Hance v. Cleveland Clinic, 2021-Ohio-1493, 172 N.E.3d 478,

¶ 25 (8th Dist.) When a trial court does not receive the documents requested and has

no opportunity to review them, it cannot determine whether the materials are

privileged. See State v. Boyle, 8th Dist. Cuyahoga No. 113045, 2023-Ohio-3161, ¶ 29.

The majority opines that J.J.’s statements to Frontline are privileged

under R.C. 2317.02 and 4732.19. I believe the conclusion that the requested records

are privileged is unsubstantiated by the record. Neither the state nor the trial court

possessed or reviewed the records. Furthermore, it is not clear whether the crisis

intervention specialist with whom J.J. disclosed the abuse was a licensed psychologist

subject to R.C. 2317.02 or 4732.19. Accordingly, I would find that the trial court erred

as a matter of law when it denied Kelley’s request for the court to conduct an in camera

review of the relevant records. In conclusion, I dissent on the majority’s resolution of the first

assignment of error. The trial court should have conducted an evidentiary hearing to

determine if the subpoena was unreasonable or oppressive under the Nixon test.

Additionally, upon finding the records material, the trial court should have conducted

an in camera review of records subject to any claims of privilege. Accordingly, I would

sustain Kelley’s first assignment of error. I concur with the remainder of the majority’s

opinion.