State v. Remy

2018 Ohio 2856

• Court: Ohio Court of Appeals
• Decided: July 20, 2018
• Docket: 2017-CA-6
• Status: Published

Opinion

[Cite as State v. Remy, 2018-Ohio-2856.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-6 : v. : Trial Court Case No. 2016-CR-42A : CHRISTOPHER C. REMY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 20th day of July, 2018.

ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

JOSHUA ENGEL, Atty. Reg. No. 0075769, and MARY MARTIN, Atty. Reg. No. 0076298, 4660 Duke Drive, Suite 101, Mason, Ohio 45040. Attorneys for Defendant-Appellant

............. -2-

FROELICH, J.

{¶ 1} Christopher C. Remy was convicted in the Clark County Court of Common

Pleas of ten counts of rape of a child under the age of 13 (less than ten; force or threat of

force), eight counts of gross sexual imposition, three counts of intimidation of a witness,

three counts of domestic violence, and one count of endangering children; the offenses

involved Remy’s three young stepdaughters. The trial court sentenced Remy to an

aggregate sentence of three consecutive mandatory life sentences without the possibility

of parole and classified him as a Tier III sex offender.

{¶ 2} Remy appeals from his convictions, raising the sufficiency and manifest

weight of the evidence regarding certain rape convictions, the trial court’s determination

that the girls were competent to testify, ineffective assistance of counsel, and

prosecutorial misconduct during closing argument. For the following reasons, the trial

court’s judgment will be affirmed.

I. Background and Procedural History

{¶ 3} The State’s evidence at trial established the following facts.

{¶ 4} In November 2012, Remy, who was then 24 years old, met his wife, Tamara;

he moved in with her the following month. The two married in March 2013 and resided

in the top half of a duplex in Springfield, Ohio. Tamara has three daughters from a prior

relationship: D.C., J.C., and K.C. The girls were six, four, and almost three years old

when Remy and Tamara married.

{¶ 5} In 2012, prior to Tamara’s relationship with Remy, the girls’ biological father

was sentenced to prison, and Tamara began to rely on “Becky,” the then-girlfriend of the

girls’ paternal grandfather, for assistance with the children. Becky, whom the girls called -3-

“Grandma Becky,” babysat the children, often cared for them at her home over weekends,

took Tamara to doctor appointments, and the like.

{¶ 6} In late May 2015, while the girls were at Becky’s home, J.C. (then six years

old) made a suspicious statement to Becky regarding Remy. Becky asked the girls about

what was going on, and the girls described sexual abuse by Remy. With the girls’

knowledge, Becky recorded the conversation with a voice recording app on her phone

(State’s Exhibit 1). Becky contacted Kayleigh (the father’s sister) and Logan (the father’s

first cousin) about the girls’ allegations; a few days later, Becky emailed or texted a copy

of the recordings1 to Logan and Kayleigh.

{¶ 7} On May 29, 2015, after hearing Becky’s recordings, Logan contacted the

police, reporting that his three young cousins had possibly been sexually assaulted by

their stepfather. At approximately 4:30 p.m. that day, Springfield Police Officer Roger

Jenkins responded to Logan’s report and met with Logan and Kayleigh. Logan and

Kayleigh played Becky’s recordings to the officer, who then contacted his supervisor,

Sergeant Doug Pergram. After consulting with Jenkins, Pergram called other officers,

including Detective Sandra Fent of the Crimes Against Persons Unit, Juvenile Division.

Shelby Lowe, a social worker at the Child Advocacy Center (part of Clark County

Department of Job and Family Services) also responded to the Remys’ residence

pursuant to a “rapid response referral” from the police.

{¶ 8} Detective Fent and Officer Jenkins approached the Remys’ residence, where

they encountered Remy and D.C.; J.C. and K.C. were with family members at Wal-Mart,

1The conversation was broken into five audio-files, four of which were two minutes and 23 seconds long and the last of which was 29 seconds long. -4-

where Tamara worked. Detective Fent and Lowe decided to interview the girls

immediately at the Child Advocacy Center (CAC), and D.C. was driven to CAC. After

Tamara and the other two girls returned home, Tamara was asked to drive the girls to

CAC.

{¶ 9} Lowe, the CAC social worker, conducted separate forensic interviews of

D.C., J.C., and K.C., all of which were video-recorded; Detective Fent watched the

interviews from an observation room. While K.C. was waiting and playing in the lobby of

CAC, she approached Sergeant Pergram and said, “Chris put his pee hole in my mouth.”

Pergram informed Detective Fent of K.C.’s statement. After interviewing each child,

Lowe referred the children for counseling. Lowe and Detective Fent determined that the

girls could not be returned home safely, and the children were placed with the girls’

paternal grandmother and her husband.2 Because K.C. disclosed in her interview with

Lowe that sexual abuse had occurred within the past 72 hours, Lowe also referred K.C.

to Dayton Children’s Hospital for a medical examination.

{¶ 10} That night (May 29, 2015), the grandparents took K.C. to Dayton Children’s,

where K.C. was interviewed by an emergency department social worker, Belinda

Dewberry, and was examined by Dr. Vipul Garg. Dewberry learned from the

grandmother that Remy allegedly “put his weiner” in K.C.’s mouth, that Remy had hit

K.C.’s head and slammed her on the bed, and that K.C.’s “pee pee hurt”; this information

was placed in K.C.’s medical records. K.C. told Dr. Garg that Remy “put his weiner” in

her mouth while her mother was at work. K.C. told Dr. Garg that Remy had not put

2 For convenience and clarity, we will refer to the grandmother and her husband as “the grandparents,” grandmother, and grandfather, because the girls’ biological paternal grandfather was not involved in the case. -5-

anything in her vagina.

{¶ 11} Lowe re-interviewed the girls on Monday, June 2, 2015; these interviews

were also video-recorded, but the recordings were lost due to system failure. Lowe

testified that, at these interviews, the girls acted shy, had no eye contact, looked down,

and did not want to talk. Lowe later learned that the girls had been told by Tamara to act

scared and shy during the interview.

{¶ 12} All of the girls displayed disruptive and/or sexualized behaviors after their

removal from the Remys’ home. The grandparents described, for example, lying,

stealing of jewelry (all girls), unlocking of doors at night, masturbation (J.C.), defiance

(J.C.), and urination on the rugs and furniture (particularly J.C., but sometimes K.C.). In

August 2015, the girls informed Lowe that Tamara had told them at visitation to be “bad”

at the grandparents’; the grandmother testified that many of these behaviors improved

when visitation stopped. In addition, J.C. displayed sexual behavior around males and

mimicked oral sex when eating bananas and using straws. J.C. and K.C. put their fingers

in the rectum of one of the grandparents’ dogs. D.C. would not wipe after a bowel

movement and displayed a lack of self-awareness regarding her body. K.C. once

smeared feces on the wall and D.C.’s possessions. In August 2015, the grandparents

learned that J.C. was sexually assaulting her sisters.

{¶ 13} D.C. and K.C. have remained with the grandparents since their removal.

D.C. and K.C. have received therapy at Rocking Horse Center with different counselors.

J.C. was placed in foster care after the grandparents learned of her actions toward her

sisters. J.C. had behavioral issues at her first foster placement, and in October 2015,

she was placed with a couple who run Oesterlen Respite and Resource Center, a short- -6-

term foster care facility; J.C.’s behavior significantly improved after that change in foster

placement. J.C. has received counseling from Rocking Horse Center and, after her

placement in foster care, from Youth Challenges.

{¶ 14} Lowe interviewed the girls on two other occasions: (1) on August 25, 2015,

after the agency received a “family in need of services” referral, and (2) on October 28,

2015 (J.C.) and November 4, 2015 (D.C. and K.C.), after the agency received new

allegations of sexual abuse. Dr. Lori Vavul-Roediger, a Board-certified child abuse

pediatrician at Dayton Children’s, examined J.C. on October 12, 2015. K.C. and D.C.

were examined by Dr. Vavul-Roediger on October 15, 2015.

{¶ 15} Remy was ultimately indicted on 27 charges of rape, attempted rape, gross

sexual imposition, intimidation, domestic violence, and endangering children. Prior to

trial, the trial judge met with each child in his chambers and determined that each child

was competent to testify at trial.

{¶ 16} During the jury trial,3 the State presented numerous witnesses, including

Becky, Logan, Kayleigh, the responding police officers, Lowe, the children’s counselors

at Rocking Horse Center, J.C.’s counselor at Youth Challenges, the physicians who

examined the children, a social worker at Dayton Children’s, Tamara’s ongoing case-

worker, employees of Clark County Department of Child and Family Services (regarding

Tamara’s visitation), the grandparents, J.C.’s current foster parents, the children (D.C.,

J.C., and K.C.), and Dr. James Duffee, an expert in pediatric medicine and pediatric

psychology. At the conclusion of the State’s case, the State voluntarily dismissed the

3 Remy was tried jointly with his wife, Tamara, who also faced similar charges related to the three children. -7-

sole charge of attempted rape (Count 33).

{¶ 17} Tamara presented her defense following the State’s case. She testified on

her own behalf, denying the allegations. She also offered the testimony of her

grandfather and his teenaged daughter, who lived in the bottom half of the duplex where

the Remys lived. Tamara’s sister also testified on Tamara’s behalf. All of Tamara’s

witnesses indicated that they neither saw nor heard any indication of sexual abuse by the

Remys. Remy then testified on his own behalf, denying the allegations.

{¶ 18} After deliberations, the jury found Remy not guilty of one count of gross

sexual imposition, but found him guilty of the remaining charges.4 Remy received an

aggregate sentence of three consecutive mandatory terms of life in prison without the

possibility of parole. (See Appendix for a chart of Remy’s offenses and sentences.)

{¶ 19} Remy appeals from his convictions, raising five assignments of error. We

will address them in an order that facilitates our analysis.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 20} In his fourth and fifth assignments of error, Remy claims that certain rape

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

the evidence, because the testimony of two of the victims (D.C. and J.C.) did not establish

penetration. (There were no counts of anal or vaginal rape with respect to K.C.) The

counts at issue are Counts 2, 3, 4, and 5 (D.C.) and Counts 16 and 17 (J.C.). Remy

does not raise a sufficiency or manifest weight of the evidence argument with respect to

his other convictions.

4 Tamara Remy was convicted of rape, complicity to commit rape, three counts of gross sexual imposition, three counts of intimidation of a victim/witness, and three counts of endangering children. -8-

{¶ 21} A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a

matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant

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

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

{¶ 22} In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’

refers to a greater amount of credible evidence and relates to persuasion”). When

evaluating whether a conviction is against the manifest weight of the evidence, the

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine 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.” Thompkins at

387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 23} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations -9-

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

{¶ 24} In reviewing challenges based on the sufficiency and/or manifest weight of

the evidence, we are required to consider all of the evidence admitted at trial, regardless

of whether it was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202, 2009-

Ohio-593, 903 N.E.2d 284; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio-

197, ¶ 16, citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.).

{¶ 25} R.C. 2907.02(A)(1)(b), the rape statute at issue, states: “No person shall

engage in sexual conduct with another who is not the spouse of the offender or who is

the spouse of the offender but is living separate and apart from the offender, when any of

the following applies: * * * (b) The other person is less than thirteen years of age, whether

or not the offender knows the age of the other person.”

{¶ 26} The term “sexual conduct” is defined as “vaginal intercourse between a

male and female; anal intercourse, fellatio, and cunnilingus between persons regardless

of sex; and, without privilege to do so, the insertion, however slight, of any part of the

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

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

intercourse.” R.C. 2907.01(A).

{¶ 27} We have clarified what evidence is legally sufficient to establish vaginal and

anal penetration:

Rape, both vaginal and anal, requires intercourse involving

penetration of a particular bodily cavity. A “cavity” is a hollow space within -10-

a mass. Webster’s Third International Dictionary. Intercourse occurs with

penetration of the cavity, “however slight” that penetration may be. R.C.

2907.01(A). Evidence of penetration differs for these purposes, however,

because there is a significant anatomical difference between those

particular bodily cavities.

Anal rape requires penetration of the anal cavity. The anus is the

sphincteral muscle in the structure at the base of the alimentary canal called

the rectum, which lies below the buttocks. The anal cavity is a hollow that

lies within the anus. Penetration of the anal cavity requires entry through

the anus. The “however slight” standard in R.C. 2907.01(A) permits a

finding that anal intercourse has occurred when there is evidence of some

forceful spreading of the anus by the object concerned. A spreading of

only the buttocks, which forms no part of the anal cavity, is therefore

insufficient for anal rape. [State v. Wells, 91 Ohio St.3d 32, 34, 740 N.E.2d

1097 (2001).] However, depending on all the circumstances, it may

constitute attempted anal rape. Id.

The vagina is the hollow passage leading from the uterus of the

female body outward to the exterior genitalia, or vulva, which is comprised

of lip-like folds of skin called the labia majora. The term “vaginal cavity”

refers to that entire anatomical process and any part of it.

Penetration of the vaginal cavity requires introduction of an object

from without, which necessarily implies some forceful spreading of the labia

majora. The penetration need only be “slight.” R.C. 2907.01(A). -11-

Therefore, if the object is introduced with sufficient force to cause the labia

majora to spread, penetration has occurred.

(Footnote omitted.) State v. Grant, 2d Dist. Montgomery No. 19824, 2003-Ohio-7240, ¶

27-30. See also State v. Royster, 2d Dist. Montgomery No. 25870, 2015-Ohio-3608, ¶

32.

{¶ 28} Remy argues that D.C. and J.C.’s testimony established only sexual

contact, not penetration. Remy states, “D.C. testified that Appellant did not touch ‘where

the poop comes out’ and that all touching was outside and not inside. J.C. testified that

Appellant touched her vagina and butt, but was never asked to elaborate what she meant

with those terms. She did specifically testify that Appellant never touched ‘where the

poop comes out’.” (Citations to record omitted.)

Vaginal and Anal Rape of D.C.

{¶ 29} Remy was convicted of raping D.C. vaginally and anally with both his penis

and his finger.

{¶ 30} At trial, D.C., then nine years old, testified that Remy “put his hand in my

pants and touched the front. * * * [u]nderneath my underwear.” (Tr. at 1186.) When

asked to describe what Remy did, D.C. stated, “he slammed his hand five times, slammed

it,” and she indicated the motion. (Tr. at 1187.) D.C. described Remy’s doing the same

thing to her “butt.” (Tr. at 1196.) D.C. described Remy’s touching her “front” and “butt”

as feeling “gross.” (Tr. at 1222.) D.C. testified that Remy threatened to “whoop” her if

she told; D.C. stated that she “got whooped” with a black belt by Remy if she got in trouble.

(Tr. at 1208-1209.) D.C. stated that she once tried to call 911 when Remy was “in her

clothes” and touching her “butt” while she was on the bed in his bedroom, but Tamara -12-

took the phone away. (Tr. 1218-1221). When asked whether Remy had touched her

where the poop comes out, D.C. said, “no.” (Tr. 1223.) She stated that he hurt her front

under her clothes, and that his hand was “outside,” not “inside.” (Tr. at 1224.)

{¶ 31} However, during her August 25, 2015 interview with Lowe at CAC, D.C.

stated that Remy “hurt us in our private parts.” And, other individuals also testified to

statements made by D.C. that revealed that Remy had penetrated D.C.’s anus and vagina

with his hand and penis.

{¶ 32} Dr. Vavul-Roediger, a board-certified child abuse pediatrician at Dayton

Children’s, testified that she examined D.C. on October 15, 2015, after a referral from

Clark County Children Services due to reports of sexual abuse. Only Dr. Vavul-Roediger

and the Care Clinic nurse were present for the examination. D.C. told Dr. Vavul-

Roediger that her stepfather was “hurting” her.

{¶ 33} Dr. Vavul-Roediger testified:

A: I asked the child what happened with Chris [Remy], and at that time,

she spontaneously cupped her hand and motioned it back and forth like this

and did that repeatedly while she was saying, he grabbed me with his hand

and touched my privates like this and she continued to do this. (Indicating)

Q: Did you ask her what she meant by privates?

***

A: The child said, right here and here and she used her own finger to

point to her genital area and then to her buttock area. She identified both

of these areas as what she refers to as her privates.

(Tr. 723-724.) -13-

{¶ 34} Dr. Vavul-Roediger testified that D.C. further disclosed that Remy had “put

his private in my mouth” and “put his private in my privates too.” (Tr. at 725.) The doctor

stated that when she asked D.C. to clarify how Remy put his privates in her privates, D.C.

“said here and here, and again she pointed to her own genital and anal areas.” (Id.) Dr.

Vavul-Roediger further testified:

* * * I asked the child if Chris used his privates to touch her private where

she pees once or more than once. She looked rather sad, and she said

more than once, lots, and I asked her if Chris used his private to touch her

private in the back where she poops once or more than once. She said, a

lot, more than once.

(Tr. at 725-726.) Dr. Vavul-Roediger testified that D.C. appeared “anxious and fearful at

times” while talking about the abuse. Finally, Dr. Vavul-Roediger testified that, during

the physical exam, she took a long Q-tip to touch the inside of D.C.’s vaginal and anal

areas; Dr. Vavul-Roediger testified that D.C. told the doctor that Remy “had put his

privates inside of her privates and that it was the same places that the Q-tip had been

placed when each of the cultures were collected.” (Tr. at 733.) D.C. told the doctor that

it hurt when Remy did it. (Id.)

{¶ 35} Rebecca Hunt, D.C.’s therapist at Rocking Horse Community Health

Center, described in detail her therapy sessions with D.C. Hunt testified that, during a

session on October 28, 2015, D.C. wore a Teenage Mutant Ninja Turtle mask and “shared

that Chris would put his penis in her mouth and then hurt her front with his private parts

and hurt her butt with her [sic] private parts. He would also hurt her with his hands.”

Hunt further described the December 9, 2015 session, stating: -14-

When we were talking about the body parts, it must have triggered a * * *

memory for her because she expressed that her hands, face, nose, mouth,

and butt have been hurt by Chris by his hands and his feet; and she stated

that she was spanked with a belt and spanked by her mom for telling on

Chris. She expressed that her butt, vagina, clitoris, and breasts have been

hurt by Chris’ hands. Child stated that she would silently think that hurts.

(Tr. at 1096-97.)

{¶ 36} D.C. made additional disclosures to Hunt on December 17, 2015. Hunt

testified:

The child reported that the first time she was hurt by Chris she was spanked

with his hand and then with a belt. The child supports [sic] the sexual

abuse did not start until later, around first or second grade. She reported

that * * * at first he just used his hand on her front but later put his fingers

inside and his private parts on the outside. Child reported hearing a

banging sound when her sisters were being hurt.

{¶ 37} Sherri Grimone, the Rocking Horse therapist for K.C., testified that she had

a joint session with K.C. and D.C. on October 7, 2015. During that session, K.C. stated

that Remy had put his penis in her mouth. Discussing D.C.’s statements during that

session, Grimone noted that D.C.’s disclosure was not identical to K.C.’s. Grimone

testified that D.C. “stated in therapy that Chris would put his private parts in my mouth

and in my front. So she did not say the exact same thing [as K.C.]. D.C. put [‘]and in

my front.[’]” -15-

{¶ 38} Upon review of the evidence, including D.C.’s recorded statements to Lowe,

the testimony and medical records from Dr. Vavul-Roediger, and the testimony and

therapy records of Hunt and Grimone, there was sufficient evidence that Remy not only

touched, but penetrated, D.C.’s vagina and anus, both with his penis and digitally.

Although the jury could have chosen not to believe D.C.’s statements to others,

particularly given her vague and limited testimony of sexual abuse at trial, the jury did not

lose its way in finding Remy guilty of Counts 2-5.

Vaginal and Anal Rape of J.C.

{¶ 39} Remy was convicted of raping J.C. based on his digital penetration of J.C.’s

vagina and anus.

{¶ 40} At trial, J.C., then eight years old, testified that Remy hurt her “in my private

parts” when she lived at Tamara’s house. (Tr. at 1402.) J.C. was later asked what

Remy did, and she responded that he “touched me on my private parts.” (Tr. at 1406.)

J.C. identified her “private parts” as “my vagina and my butt,” and she stated that Remy

touched her more than once with his hand, both outside and underneath her clothing.

(Id.) J.C. indicated that Remy also touched her breasts. (Tr. at 1407.) J.C. stated that

she would tell Remy to stop, but he did not. (Id.) When asked if she remembered what

it felt like when Remy would touch her on her butt with his fingers, J.C. responded,

“Weird.” (Tr. at 1408.) J.C. indicated that she did not remember what it felt like when

he touched her vagina with his fingers.

{¶ 41} J.C. described that sometimes Remy wanted “to touch my private parts and

did not want to use his belt, so he used a glove” on his hand. (Tr. at 1421.) At trial, J.C.

denied that Remy touched her “where the poop comes out.” (Tr. at 1421.) J.C. testified -16-

that, if she got in trouble, she would get “whooped” on the outside of her clothes with a

belt or, if they could not find the belt, with a brush. (Tr. at 1412-1413.) J.C. stated that

Remy told her to lie and not to tell about his touching her and that Remy threatened to

whoop her if she did not lie. (Tr. at 1413.)

{¶ 42} J.C. had previously made disclosures about Remy’s actions toward her. In

the audio-recording by Becky, J.C. initially stated that Remy “picked at” her “butt” and

caused it to bleed. When asked by Becky if Remy had put his finger in her butt, J.C.

responded affirmatively.

{¶ 43} J.C. also made statements to her counselor and a medical doctor that

indicated penetration by Remy. On August 19, 2015, J.C. stated at a therapy session

with Rayna Jensen that “Chris touched us in our private parts.” (Emphasis added; Tr. at

1446.) On October 12, 2015, J.C. was evaluated by Dr. Lori Vavul-Roediger. Dr. Vavul-

Roediger testified that J.C. made disclosures to her (the doctor) while she (the doctor)

obtained a medical history. Dr. Vavul-Roediger testified that when she asked J.C. why

she (J.C.) went to live with her “Mammaw and Pappaw” (the grandparents), J.C. “was

noted to have a change in sort of her demeanor and became anxious appearing * * * and

she stated to me that he was hurting me. They was touching me in my private parts.”

(Emphasis added.) J.C. clarified for Dr. Vavul-Roediger that “they” referred to Remy and

Tamara. Dr. Vavul-Roediger testified that she asked J.C. how Remy had touched her,

and J.C. responded “with his hands.” When asked to identify her private parts, J.C.

showed Dr. Vavul-Roediger her breast, genital area, and anal area. The doctor testified

that J.C. referred to her breast area as “B,” her genital area as “pee pee,” and her anal

area as “butt.” J.C. separately reported to Dr. Vavul-Roediger that Remy “spanked” her -17-

and her sisters.

{¶ 44} In summary, J.C. informed Dr. Vavul-Roediger and one of her therapists

that Remy was touching her in her “private parts” with his hands, and she identified her

private parts as both her vaginal and anal areas. Based on that evidence, the State

presented sufficient evidence that Remy digitally penetrated J.C.’s vagina and anus.

Upon review of the entire record, we cannot conclude that the jury lost its way when it

credited these statements.

{¶ 45} Remy’s fourth and fifth assignments of error are overruled.

III. Competency of Child-Witnesses

{¶ 46} Remy’s first assignment of error claims that the trial court “failed to make

the required findings to declare the alleged victims competent to testify.”

{¶ 47} Evid.R. 601 provides that “[e]very person is competent to be a witness

except: (A) [t]hose of unsound mind, and 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.” “If the witness is of unsound mind or under

the age of ten, the proponent of the witness bears the burden to establish certain indicia

of competency.” State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185,

¶ 23.

{¶ 48} When the competency of a child under the age of ten is questioned, the trial

court must conduct a voir dire examination of the child to determine the child’s

competency to testify. State v. Frazier, 61 Ohio St.3d 247, 250-251, 574 N.E.2d 483

(1991); L.N.Y. v. Breh, 2d Dist. Montgomery No. 26607, 2016-Ohio-966, ¶ 7. “In

determining whether a child under ten is competent to testify, the trial court must take into -18-

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.” Frazier at 251; State v. Jordan, 2d Dist. Montgomery No.

26163, 2016-Ohio-603, ¶ 34.

{¶ 49} We review the trial court’s competency determination for an abuse of

discretion.

{¶ 50} On November 14, 2016, the trial court interviewed each of the three child-

witnesses, who were six (K.C.), eight (J.C.), and nine (D.C.) years old at that time. The

prosecutor and counsel for both Remy and his wife were present, and each had an

opportunity to question the children.

{¶ 51} D.C. stated during the in-chambers interview that she was 9 years old and

in the fourth grade. She stated that she went to school “on a computer,” but might be

able to go back to her old school. D.C. named her former teacher and gave an opinion

of her. D.C. indicated that she was living with her grandparents, who helped her with her

homeschooling, and she identified the street on which she lived. D.C. stated that she

had gotten A’s and B’s in school, “but I never ever got a F” and had never been

suspended. D.C. did not know the date or the particular day of the week of the interview,

but she indicated that she does not keep track.

{¶ 52} D.C. expressed that she understood the difference between telling the truth

and a lie. She stated, “Telling a lie is bad and telling the truth is good. I always tell the

truth. * * * Like if I stole a piece of candy, I would say I took a piece of candy, that’s what -19-

I did. I never take candy. I never take food.” D.C. also stated that she understood

what a promise meant, and that if she promised to tell the truth, she would have to tell the

truth. The court made statements about the cleanliness of the windows and the time of

day, and D.C. indicated an understanding of which of those statements were true and

which were false.

{¶ 53} Counsel asked D.C. about her hobbies and favorite foods. D.C. stated that

she plays soccer with her cousins and her grandfather keeps score. D.C. stated that her

favorite food is apples, which she gets from the store, and that she hates hot dogs. D.C.

stated that she likes hamburgers, and her favorite place to get them is Golden Corral.

{¶ 54} K.C. stated that she was six years old and was wearing a purple dress.

She indicated that she was homeschooled, helped by her grandmother. K.C. told the

trial court that she would be in fifth or sixth grade if she attended school. K.C. named

the elementary school she used to attend and her former teacher’s name. When asked

her favorite subject, K.C. stated “sometimes I studying homework.” K.C. gave her

sisters’ names and ages. K.C. could not name the street on which she lived.

{¶ 55} The court discussed with K.C. about telling the truth and making promises.

K.C. stated that she did not need to make a promise before telling the truth. The court

also discussed with K.C. how she had gotten to court, whether she had breakfast, and

what she had done the day before. K.C. told the court she liked to play with dolls, and

she described a new doll she had gotten. K.C. commented that the court had the same

kind of computer that she has, and K.C. discussed with the court how to use a computer.

{¶ 56} The prosecutor asked K.C. what she had done over the summer break from

school. K.C. responded that she had gone swimming with her neighbors in the pool at -20-

her house, until the pool was taken down. K.C. explained that the pool was taken down

when it started to get cold and leaves started dropping into the pool. Upon questioning

from Tamara’s counsel, K.C. stated that not playing fair was cheating.

{¶ 57} J.C. told the court her birthday and the date of the interview. She stated

where and with whom she lives, and she described how she goes to and returns home

from school. J.C. identified the school that she attends and her teacher; J.C. stated that

her favorite subject was math. Initially, J.C. responded “no” to whether she knew “what

it means to tell a lie.” Upon further questioning, J.C. told the court that telling the truth

means “that you don’t lie,” and she indicated whether certain statements by the court

(e.g., this paper is blue) were truthful. J.C. stated that a promise means that “you swear

that you’re gonna take it, do it.” J.C. remembered what she had done the prior week,

including that she did not attend school one day; J.C. stated that she does not miss school

when she is absent and that she did not want to go to school that day. J.C. answered

what she had done for her last birthday (in August).

{¶ 58} Later that day (November 14), the trial court filed an entry finding that the

children were competent to testify. The entry stated, in its entirety, “The Court having

interviewed the three juvenile witnesses, D.C., J.C., and K.C., in chambers with counsel

for the parties, find[s] that all three witnesses meet the standards for competency to

testify.”

{¶ 59} On appeal, Remy acknowledges that the trial court was not required to

make specific findings on each Frazier factor. However, he claims that there was no

evidence that the trial court considered each Frazier factor and, in particular, that the

interviews of D.C, J.C., and K.C. did not address their ability to observe, recall, and -21-

communicate accurate impressions of past events.

{¶ 60} We disagree. Although the trial court did not question the children about

the events related to the indictment, the trial court and/or counsel asked the children about

past experiences. D.C. was asked about her past schooling, her hobbies, and her

favorite foods, which provided an opportunity for her to talk about her former teacher,

playing soccer with her cousins, and where she has eaten or gotten certain foods. K.C.

was also asked about her former school and teachers. In addition, K.C. was asked what

she had done during the past summer, to which she answered that she had gone

swimming until it was too cold and the leaves were falling into the pool. J.C. was asked

about her last birthday, which was approximately two months prior to the interview.

{¶ 61} Upon review of the transcript of the interviews with K.C., J.C., and D.C., the

trial court did not abuse its discretion in finding that each child was competent to testify at

trial. Remy’s first assignment of error is overruled.

IV. Ineffective Assistance of Counsel

{¶ 62} In his third assignment of error, Remy claims that his counsel rendered

ineffective assistance by failing to object to the admission of several out-of-court

statements by the children regarding the alleged sexual abuse.

{¶ 63} We review alleged instances of ineffective assistance of trial counsel under

the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.

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

of counsel, a defendant must demonstrate both that trial counsel’s conduct fell below an

objective standard of reasonableness and that the errors were serious enough to create -22-

a reasonable probability that, but for the errors, the outcome of the case would have been

different. See Strickland at 688; Bradley at 142. Trial counsel is entitled to a strong

presumption that his or her conduct falls within the wide range of reasonable assistance.

Strickland, 466 U.S. at 688. A defendant is entitled to “reasonable competence” from his

or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki, 136 S.Ct. 2, 5 (2015),

citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam).

{¶ 64} “Strickland and its progeny establish that when a court is presented with

an ineffective-assistance-of-counsel claim, it should look to the full record presented

by the defendant to determine whether the defendant satisfied his [or her] burden to

prove deficient performance.” Reeves v. Alabama, __ U.S. __, 138 S.Ct. 22, 26, 199

L.Ed.2d 341 (2017). Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel’s perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v.

Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.).

{¶ 65} Remy claims that his trial counsel rendered ineffective assistance by failing

to object to certain hearsay: (1) the audio-recording by Becky, (2) the video-recordings of

the CAC interviews of D.C. on May 29, 2015, K.C. on August 28, 2015, and J.C. on

October 28, 2015,5 (3) Sergeant Pergram’s testimony about a statement by K.C. at CAC

5 Remy does not expressly challenge the video-recordings of additional CAC interviews. Exhibit 3A contains the video-recorded interviews of all of the children on May 29, 2015, and the video-recorded interviews of K.C. and D.C. on November 4, 2015. In addition, Exhibit 7 contains the video-recorded interviews of all three children on August 28, 2015. Regardless, our analysis of Remy’s assignment of error applies equally to all of the CAC video-recordings. -23-

on May 29, 2015, and (4) the grandfather’s testimony about a statement by K.C. upon

leaving CAC on May 29, 2015. Remy also claims that his counsel should have objected

to improper opinion testimony provided by Dr. Duffee, the State’s expert.

{¶ 66} In its appellate brief, the State does not argue that Becky’s audio-

recordings, the video-recordings at CAC, or K.C.’s statements to Sergeant Pergram and

the grandfather were admissible under an exception to the hearsay rule. Rather, the

State asserts that Remy’s trial counsel employed a reasonable trial strategy when he

failed to object to the recorded statements, that the grandfather’s and Pergram’s

testimony about K.C.’s statements were not prejudicial, and that Dr. Duffee’s statements

were neither inadmissible nor unduly prejudicial. We note that, at oral argument, the

State asserted the forensic interviews were admissible as statements made for the

purpose of medical diagnosis or treatment.

Hearsay Rule

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

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

of the matter asserted.” A “statement,” as included in the definition of hearsay, is an oral

or written assertion or nonverbal conduct of a person if that conduct is intended by him

as an assertion. Evid.R. 801(A). “An ‘assertion’ for hearsay purposes ‘simply means to

say that something is so,’ e.g., that an event happened or that a condition existed.”

(Emphasis and citations omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235,

818 N.E.2d 229, ¶ 97. Assertions can generally be proven true or false. Id. In general,

hearsay is not admissible. Evid.R. 802.

{¶ 68} Certain statements are excluded from the definition of hearsay, including -24-

statements of a party-opponent where the statement is offered against that party.

Evid.R. 801(D)(2)(a); State v. Cole, 2d Dist. Miami No. 2013 CA 18, 2014-Ohio-233, ¶ 36.

In addition, there are several exceptions to the hearsay rule, including, for example,

present sense impressions, excited utterances, statements of the declarant’s then-

existing condition (mental, emotional, physical), and statements for purposes of medical

diagnosis or treatment. Evid.R. 803(1)-(4).

{¶ 69} In particular, Evid.R. 803(4) provides that statements for purposes of

medical diagnosis or treatment are not excluded by the hearsay rule, even though the

declarant is available as a witness. The rule permits “[s]tatements made for purposes of

medical diagnosis or treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general character of the cause or

external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Such

statements are generally deemed to be trustworthy and admissible because “ ‘the

effectiveness of the treatment depends upon the accuracy of information given to the

physician [so] the declarant is motivated to tell the truth.’ ” (Citations omitted.) State v.

Hazel, 2d Dist. Clark No. 2011 CA 16, 2012-Ohio-835, ¶ 45; State v. Jones, 2015-Ohio-

4116, 43 N.E.3d 833, ¶ 71 (2d Dist.).

{¶ 70} Evid.R. 807 also “provides an exception to the general exclusion of hearsay

statements when a child under the age of 12 at the time of trial or hearing makes an out-

of-court statement describing any sexual act that is performed on, with, or by the child.”

State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576, 906 N.E.2d 427, ¶ 14, citing

Evid.R. 807(A). “For the statement to be admitted, the proponent of the statement must

not be able to reasonably obtain the child's testimony”; there is no requirement that the -25-

child-declarant be determined to be competent to testify before the statement is admitted.

Id. Because D.C., J.C., and K.C. were found to be competent to testify and did testify at

trial, Evid.R. 807 is inapplicable here.

{¶ 71} We note that Remy does not challenge the admissibility of the girls’

statements to Dr. Garg, Dr. Vavul-Roediger, Dewberry (the ER social worker), or the girls’

therapists at Rocking Horse Center and J.C.’s therapist at Youth Challenges. We agree

that these statements fall within Evid.R. 803(4). See State v. Muttart, 116 Ohio St.3d 5,

2007-Ohio-5267, 875 N.E.2d 944; Jones at ¶ 70-82.

Audio Recording by Becky

{¶ 72} Becky was the third witness at trial, following Kayleigh and Logan, who

called the police after hearing the recordings Becky made. Becky testified about her

relationships with Tamara and the girls. Becky testified, without objection, about a prior

allegation by D.C. in 2013 that Remy was “touching her privates and smacking on her.”

Becky indicated that she informed Tamara of D.C.’s allegation and originally believed that

Tamara would take the girls to the doctor, but Tamara did not.

{¶ 73} Becky testified that, in late May 2015, the girls were at Becky’s house when

J.C. complained to Becky that D.C had hit her (J.C.) in the nose and made her butt bleed.

After Becky repeatedly told J.C. that hitting the nose makes the nose bleed, J.C. said,

“Oh, well[.] [T]hat must have been when Chris was picking in my butt.” (Tr. at 367.)

Becky had the three girls come into the front room of her house, and she told them that

they were “gonna talk and that it was okay. They couldn’t lie.” Becky then audio-

recorded her conversation with the girls, which was played to the jury without objection. -26-

{¶ 74} During the conversation, 6 the girls can be heard to say that “he did it

yesterday after school.” D.C. told Becky that, one night, J.C. and K.C. were “touched in

their privates” and got “beat to death.” D.C. said they were crying and that the crying

could be heard from downstairs. J.C. stated that Remy touches her butt. One girl

stated that Remy touches her “everywhere,” including her “boobs” and “privates,” and

“won’t keep his hands to himself.” D.C. stated Remy touches her privates and her butt

and smacks her on her butt. J.C. stated that Remy comes into the bathroom when she

is in there and touches her with his hand. J.C. stated that Remy “picked at her butt” with

his finger and made her poop bloody. Becky asked J.C. if Remy put his finger in her

butt, and J.C. responded affirmatively. The girls also indicated that Remy “smacked” all

of them and hit them with a belt, a brush, and/or a stick. D.C. said Remy punched her in

her mouth and nose and made them bleed. Becky repeatedly asked the girls where their

mother was when the events occurred, why Remy did what he did, whether the girls told

their mother, what their mother had said, and if they were telling the truth.

{¶ 75} Remy asserts, and the State does not dispute, that D.C., J.C., and K.C.’s

statements in Becky’s recording were hearsay and were not excluded from or did not fall

within a recognized exception to the hearsay rule.

{¶ 76} Upon review of the entire record, we find that counsel’s failure to object to

the girls’ statements to Becky was harmless and could have been the result of a

reasonable trial strategy. The girls’ allegations of sexual and physical abuse by Remy

6 Because there was no video-recording, the audio-recording is sometimes unclear as to which child made particular statements, particularly when the girls talked at the same time or the statements were made at a softer volume. However, Becky directed some questions to a particular child, and some statements were identifiable by the girls’ distinct voices. -27-

were repeated to other individuals during medical examination(s) and/or in counseling

sessions with the girls’ therapists, and the doctors and therapists testified to those

statements at trial. Consequently, the jury would have been aware of the allegations

even if Becky’s recordings had been excluded.

{¶ 77} And, by allowing the recorded statements to Becky to be admitted early in

the trial, the defense was able to develop the argument that Becky lacked the requisite

training to appropriately interview the children about the abuse, and that her questions

and responses to the children affected the children’s subsequent disclosures. Remy’s

counsel’s opening statement emphasized that the case rested on the credibility of the

children’s allegations. Counsel stated:

* * * And when you think about this whole case, after you’ve listened to

everything, it all boils down to the statements of three children and whether

or not the people that listen to them believe them; and I submit to you that

even though those other people that are gonna come and testify might

believe the children or have opinions about what the children do, you’re

allowed, as jurors, to make your own separate judgment and opinion on

whether or not those children are credible because that’s what the whole

story boils down to, three children coming forward.

(Tr. at 53.) Counsel emphasized that the jury should look at “the consistency of

somebody’s story, the consistency of that story with somebody else, whether or not that

story is consistent with physical evidence or, in this case, no physical evidence.” (Id.)

Counsel also emphasized that the jury should consider the timing of the disclosures and

the source of the allegations; counsel noted that family members had called the girls -28-

“habitual liars.” (Tr. at 54).

{¶ 78} Finally, Remy’s counsel’s argument reflected a strategy to link disclosures

by the girls to the influence of family members. Remy’s counsel argued in opening

statements that this case showed “a betrayal of grandparents against parents and

children against parents and stepparents.” (Tr. at 55.)

{¶ 79} Defense counsel’s approach to the evidence was reiterated in closing

argument. As in his opening statement, counsel argued that the girls’ credibility “is

what’s most important.” (Tr. at 1937.) Counsel argued that Dr. Duffee stressed the

importance of careful interviewing, and that Becky’s recording displayed poor interviewing

technique. (Tr. at 1938.) Counsel further argued that there was no physical evidence

of sexual or physical abuse; he noted that, unlike Remy, the girls did not have a sexually

transmitted disease and that Tamara’s family members, who saw the girls on a daily

basis, saw no signs of abuse. Counsel emphasized that much of the information about

the abuse came from the girls and the grandparents, that the girls’ statements were

inconsistent, and that the variations in the stories could be timed with decisions by the

Department of Job and Family Services regarding the girls. Counsel argued that “there

was a plan” by the girls’ father’s family (Logan, Kayleigh, and others) to get the girls away

from Tamara Remy and with their (the father’s) family.

{¶ 80} In short, we find that the information contained in Becky’s audio-recordings

was duplicative of other admissible statements and that counsel’s failure to object to the

admission of these recordings could reasonably have been part of counsel’s trial strategy

to undermine the credibility of the girls’ subsequent statements.

Video-Recordings of Forensic Interviews by Lowe at CAC -29-

{¶ 81} After the State presented the testimony of Officer Jenkins, who responded

to Logan’s 911 call, and of Sergeant Pergram, the State called Shelby Lowe, who had

also responded to the Remys’ residence and then conducted the forensic interviews of

the children on May 29, 2015. Lowe conducted additional forensic interviews of the

children on June 2, 2015 (no available recording), August 28, 2015 (all children), October

28 (J.C.), and November 4, 2015 (D.C. and K.C.). All of the available video-recordings

were played for the jury.

{¶ 82} At the outset, we reject the State’s assertion that Lowe’s forensic interviews

with D.C., J.C., and K.C. were admissible as statements made for the purpose of medical

diagnosis and treatment, pursuant to Evid.R. 803(4). In determining whether statements

made to a forensic interviewer at a child advocacy center are made for the purpose of

medical diagnosis and treatment, as opposed to forensic investigative purposes, the court

must “identify the primary purpose of the statements.” State v. Arnold, 126 Ohio St.3d

290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 28.

{¶ 83} As recognized by the Ohio Supreme Court, “ ‘[t]he purpose of a Children’s

Advocacy Center is to provide a comprehensive, culturally competent, multidisciplinary

response to allegations of child abuse in a dedicated, child friendly setting.’ ” Arnold at ¶

29, quoting Nancy Chandler, Children’s Advocacy Centers: Making a Difference One

Child at a Time, 28 Hamline J.Pub.L. & Policy 315 (2006), quoting National Children’s

Alliance, Accreditation Guidelines for Children’s Advocacy Centers 5 (2004).

{¶ 84} Lowe testified that CAC “is a place where we do forensic interviews” in a

“safe, supportive, family-friendly” environment. (Tr. at 451.) CAC falls under the

umbrella of the Clark County Department of Job and Family Services, and Lowe -30-

described it as a multi-disciplinary team of forensic interviewers, law enforcement, mental

health services, Dayton Children’s, the prosecutor’s office, victim witness services, the

juvenile court, and the department of developmental disabilities. She stated that CAC’s

purpose was “to reduce trauma to any child that alleges child abuse and/or neglect. We

see different, more severe cases out of the Child Advocacy Center.” (Tr. at 452.)

{¶ 85} Lowe stated that, when cases were assigned to CAC, “we will coordinate

with law enforcement and then set up a forensic interview.” (Tr. at 453.) The interview

is videotaped so that other team members or law enforcement could review or observe

the interview so the child did not have to be interviewed multiple times. Lowe stated that

a forensic interview is a fact-finding, nonleading, and non-suggestive interview, where the

“primary goal is to interview a small child and find out what happened * * * with their

words.” (Tr. at 454.)

{¶ 86} If law enforcement is involved, Lowe will coordinate with the detective to

schedule the forensic interview. (Tr. at 459.) If, as in this case, the child is under the

age of 13, Lowe interviews the child alone, and the detective sits in an observation room

to watch and listen to the interview. (Tr. at 460.) Lowe testified that, during the

interview, “typically once we get to a certain point * * *, I will step out of the room, the child

will stay in the room, and I will go talk to the detective in the observation room to see if

they have any questions or comments for that child.” (Tr. at 461.) If the child is older

than 13, the detective will sit in on the interview with the child. (Tr. at 460.)

{¶ 87} Lowe further testified that part of the forensic interview is “to assess if that

child needs a medical or mental health referral.” (Tr. at 467.) Lowe stated that,

depending on the disclosure, the child may be referred to Dayton Children’s. In addition, -31-

to assist children with the traumatic event they’ve experienced, CAC will refer children to

counseling and other agencies, as appropriate. (Tr. at 468.) Lowe stated that the

“primary goal” was to assess the child’s safety. (Tr. at 469.)

{¶ 88} As per CAC’s general practice, Lowe interviewed D.C., J.C., and K.C.

separately, with Detective Fent watching in the observation room; Detective Fent had

driven D.C. to CAC. At some point during each interview, Lowe left the interview room

to consult with Detective Fent. Lowe asked additional questions upon returning to the

room. During K.C.’s forensic interview on May 29, 2015, K.C. disclosed that Remy had

put his penis in her mouth earlier that day. Because the abuse had occurred within 72

hours of the disclosure, Lowe referred K.C. to Dayton Children’s for an examination. (Tr.

at 570.) All three girls were referred for counseling. (Id.) Lowe and Detective Fent

also discussed a safety plan for the girls, and the girls were placed, with Tamara’s

consent, with the grandparents.

{¶ 89} Detective Fent and Lowe decided that Lowe should reinterview the children

on June 2 (the Monday following Friday, May 29), which occurred. Fent was not present

for these interviews, which were very short; the recordings of these interviews were lost

and not played for the jury. After Lowe received the family-in-need-of-service referral on

August 25, 2015, she contacted law enforcement and the grandparents and scheduled

additional interviews with the children. The interviews of the girls followed a similar

format as the May interviews. (Tr. at 597.) Detective Fent and the family’s ongoing

case worker, Kelly Pelyhes, observed the interviews from another room, and Lowe

stepped out to consult with them during each interview. The same was true of Lowe’s

interview with D.C. on October 28, 2015 and with D.C. and K.C. on November 4, 2015. -32-

{¶ 90} Based on the evidence before us, the primary purpose of Lowe’s forensic

interviews with D.C., J.C., and K.C. was for forensic information-gathering, not for the

purpose of medical diagnosis and treatment. The interviews were coordinated with law

enforcement personnel, Detective Fent observed the interviews from an observation

room, and Lowe consulted with Detective Fent prior to completing the interviews that the

detective attended. The interviews were not conducted in a medical facility or through

referrals from a medical facility, and there is no indication that the children gave the

statements for purposes of obtaining a medical diagnosis or treatment. Although

referrals to physicians and counselors were made following certain interviews, the primary

goals stated by Lowe were information-gathering for child safety, not to provide immediate

medical (physical or mental health) care and diagnosis.

{¶ 91} Although the recorded videos of Lowe’s interviews were objectionable, we

nevertheless conclude, upon review of the entire record, that their admission was

harmless. As with the statements in Becky’s recordings, the allegations by the children

in the challenged interviews with Lowe were repeated to other medical professionals

and/or therapists. Accordingly, the content of the children’s statements would have been

before the jury even absent the video-taped interviews. In addition, even without the

video-recordings, Lowe would have been permitted to testify about the demeanor of the

children during the interviews and to the referrals that were made as a result of the girls’

statements during the interviews. Arguably, Lowe might have been permitted to testify

about some of the girls’ allegations to explain why the referrals were made, but not for the

truth of the allegations themselves.

{¶ 92} Moreover, although the videotaped forensic interviews were more extensive -33-

than the audio recordings by Becky, we similarly conclude that counsel’s failure to object

to the recorded statements could have been part of a reasonable trial strategy. As noted

above, counsel emphasized that the case hinged on the girls’ credibility. During closing

argument, counsel asked the jury to “look at the consistency of their statements.” (Tr. at

1941.) Counsel argued:

* * * That’s one of the tests of credibility. You have the recording from May

25. You have an interview from * * * May 29; and from that entire weekend

the only people around are [the grandparents]. Each time they’re

interviewed, they have a different demeanor.

So on June 2 there’s an interview. June 29, a letter comes out

saying the charges were unsubstantiated. So what happens? August 28

a call is made, let’s get some more stuff in there. October 28, no charges.

Another call is made. Let’s get something in there. * * *

Even when you listen to [Becky’s] recording, you get a different

demeanor from the girls from when they were interviewed on May 29. You

get a different demeanor from the other interviews and you get a different

demeanor from them on the stand; and that’s – you have to pick which of

these girls you’re going to believe. Each of these three girls have

presented something different, different facts, different circumstances,

who’s there, who’s not there, things that they saw, whether or not they saw

somebody’s privates, whether or not their privates were in their mouth,

whether or not somebody’s mouth was on their privates. Those are all

facts. Those are all facts of the case throughout the whole course of their -34-

testimony, throughout their therapy, throughout their interviews, everything.

(Tr. at 1941-1943.) Accordingly, counsel could have reasonably elected to have all of

the girls’ statements before the jury in order to argue that the inconsistencies in the girls’

demeanor and the content of the various statements made the girls not credible.

{¶ 93} At oral argument, Remy’s appellate counsel argued that defense counsel

could have used the recorded statements for impeachment and thus achieved his desired

strategy without allowing the recorded statements to be admitted as substantive

evidence. We agree that, in most circumstances, this is the better approach, and that

the failure to employ this approach could, in some circumstances, constitute ineffective

assistance.

{¶ 94} However, in this case, the witnesses to be impeached were three young

children under the age of ten. Defense counsel had previously observed and questioned

each child, having been present during the in-chambers competency hearing. Counsel

was aware that the children had been found to be competent and would be testifying at

trial. Counsel may have reasonably believed that the children would be difficult to cross-

examine about their prior statements to Lowe at trial, particularly when the children gave

different information at different forensic interviews and made different disclosures of

abuse over the course of approximately 17 months of therapy.

{¶ 95} In other words, defense counsel may have believed that he could more

effectively present his theory of the case by allowing the jury to hear the children’s prior

statements and then arguing the children were not credible by noting the apparent

falsehoods in certain statements by the children and the inconsistencies in the various

statements, both the differing statements by the same child or inconsistencies between -35-

the children’s statements. For example, during D.C.’s November 4, 2015 forensic

interview with Lowe, D.C. was permitted to use the restroom. When D.C. returned, D.C.

reported to Lowe that there was “poop” smeared on the toilet and that she (D.C.) did not

know who did it. Lowe testified that feces were not smeared on a toilet prior to D.C.’s

using the restroom. During his cross-examination of Lowe, Remy’s counsel asked, “So

are you basically saying that you believe [D.C.] spread the feces on the toilet?” Lowe

responded, “Yes.” Counsel may have reasonably believed that allowing the jury to view

D.C.’s November 2015 forensic interview, counsel was better able to argue that all of

D.C.’s statements were not credible.

{¶ 96} The wisdom of defense counsel’s strategy may be debatable. However,

under the specific facts of this case, we cannot conclude that defense counsel’s failure to

object to the playing of the videotaped forensic interviews of D.C., J.C., and K.C. was an

unreasonable trial strategy. Moreover, upon review of the entire record and given that

the children’s disclosures would have been before the jury through other witnesses, we

cannot conclude that there was a reasonable probability that, but for the alleged errors,

the outcome of the case would have been different. See Strickland at 688; Bradley at

142.

Statements by K.C. to Pergram and the Grandfather

{¶ 97} Sergeant Pergram and the grandfather both testified about statements

made to them by K.C. on May 29, 2015, at CAC.

{¶ 98} Sergeant Pergram testified that he went to CAC, where the girls were taken

for forensic interviews. He stated that he “really just stayed in case the officers need

anything.” (Tr. at 434.) Pergram stated that, while he was talking to some of the staff -36-

at the front desk, K.C. approached him and said, “Chris put his pee hole in my mouth.”

(Tr. at 435.) Pergram indicated that he was “shocked” and “caught very off guard” by

K.C.’s statement; he relayed K.C.’s statement to Detective Fent, who was observing the

forensic interviews. (Id.)

{¶ 99} The grandfather testified that he and his wife went to CAC after being

notified that they might need to take care of D.C., J.C., and K.C. The grandparents went

to CAC and waited in the waiting area until the children’s interviews were completed and

they were asked if they could take the children. K.C. made a statement regarding the

abuse to the grandfather as they were leaving CAC. The grandfather testified: “Going

out to the car, I was holding [K.C.’s] hand and walked her across the street; and she

looked up at me and said that Chris had stuck his weiner in her mouth and that she told

on him and she was proud of herself.” (Tr. at 961.) The grandfather testified that “it was

pretty shocking * * * I just looked at her and says, well, that was good.” (Tr. at 962.)

{¶ 100} Accepting, for sake of argument, that K.C.’s statements to Pergram and

the grandfather did not fall within any hearsay exception, we find that their admission was

not prejudicial. The jury was aware, through other admissible statements, that K.C.

consistently and repeatedly stated that Remy had put his penis in K.C.’s mouth. After

K.C.’s forensic interview at CAC on May 29, 2015, the grandparents took K.C. to Dayton

Children’s. Dr. Garg, who conducted the medical examination, testified that K.C.

reported that Remy “put his weiner in her mouth” while her mother was at work. (Tr. at

537.)

{¶ 101} K.C. made similar statements throughout her therapy sessions with Sherri

Grimone at Rocking Horse Center. For example, on June 30, 2015, K.C. told Grimone -37-

that she [Grimone] needed to call 911 on Remy and that Remy would make her [K.C.] put

his weiner in her mouth while her mother was at work; K.C. reported that she had thrown

up in the toilet. Grimone further reported that, at that session, K.C. wanted to slice off

Grimone’s head and Chris’s head after the disclosure and wanted Grimone to pretend to

call 911 for Remy to go to jail. On October 7, 2015, K.C. stated that Tamara would open

her [K.C.’s] mouth and Remy would put his “private parts” in her [K.C.’s] mouth. On

December 9, 2015, K.C. told Grimone that Tamara would open her [K.C.’s] mouth so

Remy could put his penis in her mouth; K.C. further indicated to Grimone that she was

afraid and felt that she would throw up. (At other sessions, K.C. would disclose that

Remy had touched and “hurt” K.C.’s private parts.)

{¶ 102} Dr. Vavul-Roediger examined K.C. on October 15, 2015. Dr. Vavul-

Roediger testified about her conversation with K.C.:

* * * When I spoke with the child, I asked her how she was feeling

today at the beginning of the checkup and she said good. She talked about

with whom she lived and identified Mammaw and Pappaw and pointed to

Mammaw and said that Mammaw helps her to wash her hair and [K.C.] then

stated she could wash her own private parts.

I asked her who she had previously lived with and she identified her

mom, and then I asked her if she could explain why she lives with Mammaw

now. She looked down, again, was reserved, and she stated they was

hurting us.

And I asked the child who was hurting her, and [K.C.] said, Chris and

my mom. And I asked her what happened, and the child said, Chris did -38-

bad stuff to us. [K.C.] said he put his private in my mouth. * * *

{¶ 103} Finally, K.C., then six years old, testified about the fellatio at trial. K.C.

Q: So, [K.C.], when you lived with Tamara and Chris, tell us how that was.

A: I had a bad life with them.

Q: Why do you say you had a bad life with them?

A: ‘Cause they was doing nasty stuff to me.

Q: You said they were doing nasty stuff to you. Who’s they?

A: Chris and Tamara.

Q: What kind of nasty stuff were they doing?

A: She was – she was putting her finger in my mouth and Chris had his

private area, and he put it in my mouth.

Q: So you, Tamara, and Chris were in Tamara and Chris’s bedroom.

What happened when you were in Tamara and Chris’s bedroom that one

time?

A: They did the stuff, and then they got the other two and did it to them.

Q: What stuff did they do that time?

A: They, he put his private area in my mouth and she put her hand in my

mouth.

Q: When you say – she put her hand in your mouth?

A: No, her finger. -39-

(Tr. 1363-1365.)

{¶ 104} When the prosecutor showed K.C. anatomical drawings that Lowe had

shown to K.C., K.C. testified that she had circled the boy’s private area and mouth,

because “[h]e put it in my mouth.” (Tr. at 1372.) K.C. further testified that Tamara was

not in the room when Remy put his penis in her mouth (Tr. at 1378) and that Remy “put

his area in my mouth” the day before she left their residence (Tr. at 1379). K.C. also

testified that when Remy put his penis in her mouth, “I started to throw up, but I didn’t yet.

But I went in the bathroom and threw up.” (Tr. at 1384.)

{¶ 105} Upon review of the entire record, the admission of K.C.’s statements to

Sergeant Pergram and the grandfather on May 29, 2015 were harmless beyond a

reasonable doubt. Remy’s trial counsel’s failure to object to those statements did not

constitute ineffective assistance.

Testimony of Dr. Duffee

{¶ 106} Finally, Remy claims that his attorney rendered ineffective assistance by

failing to object to improper opinion testimony by Dr. Duffee, the State’s child abuse

expert. Remy argues that, although Dr. Duffee did not directly vouch for the credibility

of the children, he was asked to comment on specific conduct by the children. Remy

cites, for example, the following questions by the prosecutor:

Q: Now, we also heard some testimony that one of the siblings may have

been sexually acting out on other siblings. You had touched on that before.

Can you explain why one sibling may sexually act out on other siblings?

(Tr. at 1724.)

*** -40-

Q: Now, we heard some information about how these children did when

they had started therapy; and one of the therapists had described the

youngest child, 6-year-old [K.C.], in a session where she had used a bop

bag. She identified it as Chris and she stomped on the bop bag. She took

a knife, she put it to the therapist’s throat [and expressed wanting to cut off

the therapist’s and Chris’s head.] * * * Can you give us some insight as to

what’s going on when a child shows that sort of – demonstrates that type of

violent behavior in a therapy session, a play therapy session. (Tr. at 1727.)

Q: Now, we’ve heard one of the therapists describe 9-year-old [D.C.] in her

therapy sessions as making disclosures in what seemed to be a different –

unique to me. One way she disclosed while she wore a Teenage Mutant

Ninja Turtle mask throughout the session. * * * Can you give us some

insight into what’s going on – [?] (Tr. at 1729.)

{¶ 107} Evid.R. 703 provides that “[t]he facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by the expert or

admitted in evidence at the hearing.” “An expert witness’s testimony that the behavior

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

abused children is admissible under the Ohio Rules of Evidence.” State v. Stowers, 81

Ohio St.3d 260, 261, 690 N.E.2d 881 (1998). This is so, because “[a]n expert

psychologist’s training and professional experience provides the expert with specialized

knowledge of the kind recognized under Evid.R. 702 that the average person lacks about

behavioral characteristics of minor victims of sexual abuse.” State v. Artz, 2015-Ohio- -41-

5291, 54 N.E.3d 784, ¶ 57 (2d. Dist.).

{¶ 108} An expert may not offer a direct opinion on whether a child is telling the

truth. E.g., State v. Rosas, 2d Dist. Montgomery No. 22424, 2009-Ohio-1404, ¶ 42, citing

State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), syllabus. Nevertheless,

the Ohio Supreme Court has distinguished between expert testimony that a child is telling

the truth and evidence that bolsters a child’s credibility insofar as it supports the

prosecution’s efforts to prove that a child has been abused. Stowers at 262; see Rosas

at ¶ 42. The prosecution may present “testimony which is additional support for the truth

of the facts testified to by the child, or which assists the fact finder in assessing the child’s

veracity.” Stowers at 263.

{¶ 109} As quoted above, the prosecutor asked Dr. Duffee several questions

related to the specific behavior exhibited by D.C., J.C., and K.C. In answering those

questions, Dr. Duffee explained how children who have been sexually abused may

manifest those behaviors, but he did not opine on whether D.C., J.C., and K.C. were

truthful in their allegations. For example, in response to the question regarding J.C.’s

acting out sexually on her sisters, Dr. Duffee explained the behavior as “turning passive

into active. When the child is passively a victim, one of the ways that they can deal with

the anxiety of being a victim is turning it around and becoming the * * * perpetrator.” (Tr.

at 1724-1725.) Dr. Duffee continued:

Now, I would also say in a younger age group, again, with certain families,

even multi-generational families, sexual touching may be part of life and

may be normalized and may be something that they do. And as a younger

child, I mean, until they get into elementary school, they may not know any -42-

different. They may not know that’s not something that’s socially

appropriate.

(Tr. at 1725.)

{¶ 110} Dr. Duffee answered the prosecutor’s questions about K.C.’s and D.C.’s

therapy sessions by stating how he would interpret, in general, those behaviors in therapy

sessions. With K.C.’s violent outburst, Dr. Duffee stated that “in general, that would

make me think that the child is actually engaging with the rage that she feels about being

a victim; that one of the techniques in therapy is when you have * * * the content, you look

for emotion to put with the content * * *; and if you have the emotion, you look for content.

‘Cause a lot of times those two things are separated. * * * But it sounds like to me like that

would be more of the situation where the child is actually primally in touch with the rage

that she feels about the situation.” (Tr. at 1728.) Dr. Duffee stated J.C.’s use of a mask

illustrated depersonalization, about which he had previously testified. (Tr. at 1729) He

stated, “It didn’t happen to me; it happened to somebody else. It happened in a dream.

It happened to my friend. Those are fascinating ways that a child could protect herself

from saying this happened to me and I am the victim, and it shows that she’s making

progress; but it also, you know, shows that she’s got a long way to go.”

{¶ 111} None of Dr. Duffee’s responses directly asserted that D.C., J.C., and

K.C.’s allegations of abuse were truthful. Rather, his testimony generally informed the

jury about how children typically disclose sexual abuse, the reasons why disclosure is

often delayed and gradual, and how the reactions receiving the allegations can affect

future disclosures. Dr. Duffee stated, generally, that malicious and false reporting of

sexual abuse is rare and that “the initial disclosure [by younger children] is almost always -43-

correct.” (Tr. at 1715.) Dr. Duffee described common patterns of behavior of children

who have been sexually abused. Dr. Duffee further described how children commonly

deal with the trauma caused by the abuse, such as repeating the abusive behavior,

psychic numbing (where children distance themselves from their emotions), derealization

(it happened in a dream), depersonalization (it happened to someone else), and

dissociation (zoning out). To the extent that Dr. Duffee was asked about specific

behavior exhibited by D.C., J.C., and K.C., his testimony indicated how their behaviors fit

within the concepts he previously described and why, in general, children may exhibit

those behaviors. Dr. Duffee’s testimony in this regard was admissible, and thus trial

counsel was not ineffective when he failed to object to this testimony.

{¶ 112} Remy further asserts that Dr. Duffee testified that he would find childrens’

disclosures to be credible. Remy relies on the following exchange during Dr. Duffee’s

direct examination:

Q: Now, we had also heard that this same child had made disclosures that

she witnessed Mom harm cousins. Based on your training, education, and

experience, is that also, to push abuse off onto a completely different

person, is that another way of depersonalizing and dissociating?

A: Well, as a pediatrician, I would be concerned and I would have to report

that and kind of take it at face value first; but beyond that, I would say that,

yes, I think that it’s very common for kids to say that this happened to my

cousin or this happened to my sister because they’re unable to say this

happened to me, yet. And eventually they’ll be able to say this happened

to me. And those aren’t contradictions. Those are just incremental -44-

disclosures and somehow this happened to somebody else; and eventually

they’ll be able to say, well, yes, it happened to me and then I can close it off

and I can go on with my life.

(Emphasis added; Tr. at 1730.)

{¶ 113} Dr. Duffee’s response did not indicate, as Remy asserts, that he found the

child’s disclosure to be credible. Rather, his full response indicated that, as a doctor with

an obligation to report suspected abuse, he had an obligation to take the allegation at

face value at first. (Dr. Vavul-Roediger made a similar comment during her testimony.)

Dr. Duffee further indicated that it would not be uncommon for a child to depersonalize

the abuse and report it as having occurred against another person. We find nothing in

Dr. Duffee’s answer to mean that he found D.C., J.C., and K.C. to be credible and their

allegations to be truthful.

{¶ 114} Although not specifically raised by Remy in his appellate brief, we are

troubled by Dr. Duffee’s testimony about the general veracity of children’s sexual abuse

disclosures. Dr. Duffee testified that “[m]alicious and false reports are very uncommon”

(Tr. at 1714), and that, in younger children, “the initial disclosure is almost always correct,

is almost always true; and it’s even punctuated by the fact that if later they deny it, in

general, they’re denying it for other reasons, not because it wasn’t true, the original

disclosure wasn’t true.” (Tr. at 1715.) However, even if that testimony were

objectionable, we cannot find on this record a reasonably probability that, but for this error,

the outcome of the trial would have been different.

{¶ 115} Remy’s third assignment of error is overruled.

V. Prosecutorial Misconduct -45-

{¶ 116} In his second assignment of error, Remy claims that the prosecutor

engaged in misconduct during closing arguments by referring to Remy as a monster.

{¶ 117} The test for prosecutorial misconduct is whether the prosecutor’s remarks

or questions were improper and, if so, whether they prejudicially affected substantial

rights of the accused. State v. Exon, 2d Dist. Clark No. 2014-CA-106, 2016-Ohio-600, ¶

40, citing State v. Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300 (2000). A prosecutor’s

conduct during trial cannot be grounds for error unless the conduct deprives the

defendant of a fair trial. State v. Williams, 2d Dist. Montgomery No. 24548, 2012-Ohio-

4179, ¶ 51, citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). The

focus of the inquiry is on the fairness of the trial, not on the culpability of the prosecutor.

State v. Bey, 85 Ohio St.3d 487, 496, 709 N.E.2d 484 (1999).

{¶ 118} Where it is clear beyond a reasonable doubt that the jury would have found

the defendant guilty, even absent the alleged misconduct, the defendant has not been

prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d Dist.

Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of prosecutorial

misconduct in the context of the entire trial. State v. Stevenson, 2d Dist. Greene No.

2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct.

2464, 91 L.Ed.2d 144 (1986).

{¶ 119} In general, prosecutors enjoy a wide degree of latitude during closing

arguments. State v. Whitfield, 2d Dist. Montgomery No. 22432, 2009-Ohio-293, ¶ 12.

They may freely address what the evidence has shown and what reasonable inferences

may be drawn from that evidence. State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293

(1990); State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629, 911 N.E.2d 309, ¶ 33 (2d -46-

Dist.). “However, prosecutors must refrain from making misleading insinuations and

assertions as well as expressing personal beliefs or opinions regarding the defendant’s

guilt. Prosecutors must also refrain from alluding to matters unsupported by admissible

evidence. ‘It is a prosecutor’s duty in closing arguments to avoid efforts to obtain a

conviction by going beyond the evidence which is before the jury.’ ” (Citations omitted.)

State v. Richmond, 2d Dist. Greene No. 2005 CA 105, 2006-Ohio-4518, ¶ 15, quoting

State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984).

{¶ 120} In addition, prosecutors may not make statements that are “so

inflammatory as to render the jury’s decision a product solely of passion and prejudice

against the appellant.” State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986).

“Where it appears that prosecutorial comments constituted an invitation to the jury to go

beyond the evidence or were so flagrant as to incite the passions or prejudice of the jury,

and thereby deny the accused a fair trial, prejudicial error may inhere.” State v. Slagle,

8th Dist. Cuyahoga No. 55759, 1990 WL 82138, * 9 (June 14, 1990), citing State v. Price,

60 Ohio St.2d 136, 140, 398 N.E.2d 772 (1979); State v. Moody, 2d Dist. Montgomery

No. 26926, 2016-Ohio-8366, ¶ 110.

{¶ 121} Remy points to the following portion of the prosecutor’s rebuttal closing

argument:

[My co-counsel] talked to you [during her closing argument] about a

parent’s duties; and if you think about the things that parents do for their

kids and their well-being, you heard that these girls were removed on May

the 29th, 2015, taken to [the grandmother’s] custody and care and, by all

accounts, [the grandmother] had no relationship with these girls. So this -47-

must have been a big change for them.

And when Tamara was asked to go pack for the girls, gave them a

couple, little bit of clothes, no lovies, stuffed animals, and things of that

nature; and she never called [the grandmother] that weekend. She never

called to check in on her girls in a strange environment when law

enforcement’s been involved and they’ve been removed from home. She

didn’t ask to stop by and see them and see how they were doing with this.

As parents, even when we don’t believe our kids – like, Mom, I think

there’s a monster under my bed; I can’t go to sleep – we, as parents, check

under the bed and assure them, oh, I’ve looked. There’s no monster.

You’re safe. I will do what I need to do to make you feel safe. Even if we

don’t believe it.

What does Tamara do? On July 2, 2015, she paraded the monster

in front of them at the visitation center. He was there for when they arrived,

their own personal monster. Their fears, even if she doesn’t believe that

that’s what he did to them, as a mother, you don’t try to scare your children.

You take away their fears. You remove those things, but he was there for

them to see. Just another part of the intimidation.

(Emphasis added; Tr. at 1972-1973.)

{¶ 122} Upon review of the entire record, we cannot conclude that the prosecutor’s

isolated statement resulted in any prejudice to Remy. At the outset, the prosecutor’s

back-handed reference to Remy as a “monster” was made in the context of rebuttal

argument regarding an intimidation count against Tamara Remy, not regarding Remy’s -48-

actions themselves. The substance of the argument was that Tamara Remy committed

intimidation of a victim/witness by not shielding her children from Remy at a visitation.

Remy was analogized to the monster under the bed for these children; the jury was not

asked to convict Remy because Remy was a monster who needed to be locked away.

We do not approve of the State’s reference to a defendant as a “monster” in closing

argument, whether explicitly or metaphorically. Nevertheless, in context, the

prosecutor’s isolated comment was not “so inflammatory as to render the jury’s decision

a product solely of passion and prejudice against the appellant.” See Williams, 23 Ohio

St.3d at 20.

{¶ 123} Furthermore, the jury heard many days of testimony from the victims,

social workers, physicians, family members, police officers, and others regarding the

allegations against Remy. The State’s closing argument went through each count

individually, identifying what evidence supported each charge against him; this closing

argument took 31 pages of transcript. The State’s rebuttal closing argument, during

which the offending statement was made, took 22 pages of transcript. The jury was

instructed that closing statements of counsel were not evidence, and were not to be

considered in reaching its verdict. During deliberations, the jury asked for transcripts of

several witnesses’ testimony and sent several questions to the court. We find no

suggestion that the prosecutor’s isolated remark during rebuttal closing argument had

any effect on the jury’s deliberations.

{¶ 124} Remy’s second assignment of error is overruled.

VI. Conclusion

{¶ 125} The trial court’s judgment will be affirmed. -49-

.............

DONOVAN, J. and TUCKER, J., concur.

Copies mailed to:

Andrew P. Pickering Joshua Engel Mary Martin Hon. Richard J. O’Neill -50-

APPENDIX State v. Christopher Chase Remy (Clark App. No. 17 CA 6)

COUNT OFFENSE CHILD R.C. SECTION DEG SENTENCE 1 Rape – fellatio D 2907.02(A)(1)(b) F1 Life w/o Parole 2 Rape – vaginal D 2907.02(A)(1)(b) F1 Life w/o Parole 3 Rape – anal D 2907.02(A)(1)(b) F1 Life w/o Parole 4 Rape – digital (vag) D 2907.02(A)(1)(b) F1 Life w/o Parole 5 Rape – digital (anus) D 2907.02(A)(1)(b) F1 Life w/o Parole Gross Sexual 6 D 2907.05(A)(4) F3 48 months Imposition – vagina Gross Sexual 7 D 2907.05(A)(4) F3 48 months Imposition – buttocks Gross Sexual 8 D 2907.05(A)(4) F3 48 months Imposition – breast 9 Intimidation D 2921.04(B)(1) F3 30 months 10 Domestic Violence D 2919.25(A) M1 180 days jail Endangering 11 D 2919.22(B)(2) F3 36 months Children 15 Rape – fellatio J 2907.02(A)(1)(b) F1 Life w/o Parole 16 Rape – digital (vag) J 2907.02(A)(1)(b) F1 Life w/o Parole 17 Rape – digital (anus) J 2907.02(A)(1)(b) F1 Life w/o Parole Gross Sexual 18 J 2907.05(A)(4) F3 48 months Imposition – vagina Gross Sexual 19 J 2907.05(A)(4) F3 48 months Imposition – buttocks Gross Sexual 20 J 2907.05(A)(4) F3 48 months Imposition – breast 21 Intimidation J 2921.04(B)(1) F3 30 months 22 Domestic Violence J 2919.25(A) M1 180 days jail 31 Rape – fellatio K 2907.02(A)(1)(b) F1 Life w/o Parole 32 Rape – cunnilingus K 2907.02(A)(1)(b) F1 Life w/o Parole 33 Attempted Rape K 2923.02(A) F1 Dismissed Gross Sexual 34 K 2907.05(A)(4) F3 48 months Imposition – vagina Gross Sexual 35 K 2907.05(A)(4) F3 48 months Imposition – buttocks -51-

Gross Sexual 36 K 2907.05(A)(4) F3 Acquittal Imposition - breast 37 Intimidation K 2921.04(B)(1) F3 30 months 38 Domestic Violence K 2919.25(A) M1 180 days jail

Consecutive sentences: Counts 1, 15, 31

Mandatory prison terms: Counts 1-5, Counts 15-17, Counts 31-32