State v. R.W.

2022 Ohio 2771

• Court: Ohio Court of Appeals
• Decided: August 11, 2022
• Docket: 110858
• Status: Published

Opinion

[Cite as State v. R.W., 2022-Ohio-2771.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110858 v. :

R.W., SR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 11, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-641796-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Debora Brewer and Melissa Riley, Assistant Prosecuting Attorneys, for appellee.

Tim Young, Ohio State Public Defender, and Craig M. Jaquith, Assistant State Public Defender, for appellant. KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, R.W., Sr., appeals his convictions and sentence

following a jury trial. For the reasons that follow, we affirm.1

I. Procedural Background

In July 2019, appellant was named in an eight-count indictment

charging him with rape, a first-degree felony violation of R.C. 2907.02(A)(2) (Count

1); rape, a first-degree felony violation of R.C. 2907.02(A)(1)(c) (Count 2); rape, a

first-degree felony violation of R.C. 2907.02(A)(2) (Count 3); rape, a first-degree

felony violation of R.C. 2907.02(A)(1)(c) (Count 4); burglary, a second-degree felony

violation of R.C. 2911.12(A)(1) (Count 5); and sexual battery, a third-degree felony

violation of R.C. 2907.03(A)(5) (Count 6); retaliation, a third-degree felony violation

of R.C. 2921.05(B) (Count 7); and intimidation of a crime victim or witness, a first-

degree misdemeanor violation of R.C. 2921.04(A) (Count 8). Appellant pleaded not

guilty, and the trial court assigned him counsel.

Early in the pretrial stages of the case, appellant asserted his desire to

represent himself. As such, he was referred to the court’s psychiatric clinic for a

competency evaluation. The competency report concluded that appellant was both

competent to stand trial and proceed without counsel. After extensive inquiry by

two different judges and several refusals to proceed with certain attorneys acting as

standby counsel, he executed the necessary documentation waiving counsel. On

1 Pursuant to Loc.App.R. 13.2(c) and (d) of the Eighth District Court of Appeals, this court uses the initials of the appellant because using his actual name is likely to reveal the identity of the juvenile sexual-assault victim and other juvenile witnesses. July 19, 2021, appellant, pro se, commenced a jury trial before a retired judge sitting

by assignment, with his approved stand-by counsel.

II. Jury Trial

The state’s first witness was the victim, appellant’s then 15-year-old

daughter (“the victim”). She stated that in 2019 she lived with her mother, sister,

brother, her father’s girlfriend, and her father (appellant). She stated that she slept

in the basement and on occasion appellant would sleep in the bed with her. During

the night of May 13-14, 2019, while her mother was hospitalized following a stroke,

the victim awoke in her bed to her appellant on top of her, “grinding” on her. She

stated that her pants were pulled down and she was laying on her stomach. She felt

him reach under her and touch her vagina. The victim testified that appellant then

put his penis in her vagina. She stated that it hurt and she did not know how long

the assault went on, but when he stopped, he got a rag, cleaned both of them up, and

went upstairs. She told the jury that after the assault she sat in bed crying, trying to

go back to sleep.

The victim stated that she got up and appellant took her and her

siblings to school that morning. She stated that she disclosed the sexual assault to a

friend of hers at recess, who in turn told the assistant principal. After this disclosure,

she stated that she was taken to the hospital for an examination and spoke to the

police, an investigator, and a counselor about the sexual assault.

The victim testified that this incident was not the only time appellant

assaulted her in her bedroom. She told the jury about another incident that occurred in February 2019, when she awoke to appellant putting his penis in her vagina. On

cross-examination, she stated that this other incident occurred in April 2019. The

victim testified that she eventually told her younger sister about what their father

did, but they kept it a secret.

On cross-examination, the victim admitted that appellant set rules

and expectations for her and her younger sister, concerning chores, cellphone usage,

what music they listened to, and with whom they socialized. Appellant often used

the word “controlling” and “disciplinarian” when questioning the victim about living

with appellant. The victim admitted that appellant’s expectations were in contrast

to her mother’s approach on parenting. She agreed that she “didn’t appreciate

[appellant’s] controlling ways,” and that she “liked things a lot better how they were

before [appellant] came into [her] life.” (Tr. 587.) She testified that at the time of

sexual assault, she had only lived with appellant since late 2018, but prior to that

only “off and on for a total of 15 months.” (Tr. 584.)

The victim stated that after the allegations, appellant no longer lived

with them and was not permitted to be at the home. However, during the late-night

hours of June 20, 2019, the victim discovered appellant in their home. She stated

that she called the police — the 911 recording was played for the jury. During the

recording, the victim tells the operator that appellant was not supposed to be at the

home because appellant “molested” her. She testified that during this incident,

appellant approached her, questioning why she was “lying on him.” She stated he

made her feel scared and afraid he was going to hurt her. In fact, when appellant asked her how he had hurt her, the victim responded, “he’s left me with trauma.”

(Tr. 644.)

Twyla West testified she was the assistant principal at Adlai

Stevenson school back in 2018. She recalled the victim appearing in her office with

another student on May 14, 2019, and informing her that the victim was sexually

assaulted by appellant. According to West, the victim appeared very distraught,

upset, and was crying as she described what occurred earlier that day. She stated

after speaking with the victim, she contacted the Cuyahoga County Division of

Children and Family Services (“CCDCFS”) and the police, who later transported the

victim to the hospital.

Michael Bokmiller, a social worker with CCDCFS, testified as to his

investigation into the sexual abuse allegation. Bokmiller testified he reported to

Adlai Stevenson school and met with the victim who advised him what had occurred.

He also spoke with appellant, who denied the allegations, attributing them to the

fact that he had recently taken his daughters’ cell phones from them. He also

testified that he performed forensic interviews at the Child Advocacy Center of both

the victim and her younger sister. Based on his investigation, he deemed the

allegations “substantiated” and recommended that the victim and her family seek

counseling.

Kate Burns, a Sexual Assault Nurse Examiner (“SANE”) with

University Hospitals, testified that she treated the victim and performed the Sexual

Assault examination. She testified that she collected samples for DNA analysis, and although the clothing the victim wore during the assault was not obtained, she

retained the underwear that the victim wore to the hospital. Burnes indicated upon

her physical exam she found some redness on the lower part of the victim’s hymen,

but otherwise her examination did not reveal any other abnormalities.

BCI forensic analysts, Andrew Sawin and Hallie Dreyer, testified that

they tested the items from the victim’s rape kit. Sawin testified that the standard

DNA testing of the anal and vaginal swabs did not indicate a DNA profile foreign to

the victim’s profile. Testing from the victim’s underwear revealed an unidentifiable

minor profile that could be attributed to a male. Sawin testified that the presence of

this minor profile could have occurred during laundry or other household transfers.

Dreyer testified that she analyzed the Y-STR testing, which solely

focuses on the presence of male DNA. She stated that the testing confirmed the

presence of male DNA. Regarding the vaginal and anal swabs, the male profile was

of insufficient quality to include or exclude appellant as the contributor. However,

appellant was specifically excluded as the contributor to the male DNA profile found

on the swab taken from the victim’s buttocks.

The victim’s younger sister, who was 14-years old at the time of trial,

testified that on an unspecified date, she was sleeping in bed with the victim and

appellant, who is also her father. She recalled that movement in the bed caused her

to wake. She testified that she saw her father “shaking” himself on top of the victim

with his pants down. She stated that her sister appeared to be sleeping, and

appellant was a few inches on top of her sister. She testified that she asked her father to “stop” and then asked him if she could sleep next to her sister. She stated that she

was unsure what occurred but it made her feel uncomfortable. She testified that her

sister later told her about the sexual assaults, but that she kept it a secret.

On cross-examination, the younger sister admitted that appellant was

controlling, but denied fabricating the allegations or being untruthful. She denied

that the movement in the bed was merely appellant’s habit of shaking his legs when

trying to get comfortable. Additionally, she denied that appellant ever touched her

inappropriately and admitted that if appellant had not moved in with them, “none

of this would be happening right now.” (Tr. 779.)

Ashley Martinez testified she is a licensed counselor at Frontline

Services. She stated that the victim was referred to her for treatment by CCDCFS.

Martinez stated that during the victim’s assessment, she learned there had been an

alleged sexual assault and molestation alleged involving the victim’s father. She

stated that the victim reported symptoms regarding distress, stomach aches,

hypervigilance, and sleeping with a knife in her bed. Martinez testified that after

evaluating the victim, she made a diagnosis stating that the victim had symptoms

consistent with post-traumatic stress disorder (“PTSD”) as “a result of the sexual

assaults.”

The victim’s mother testified that she is also the mother of the victim’s

younger sister. She stated that she moved into a house with her children and

appellant in late 2018. She testified that the appellant would often sleep in the

basement with the victim, which she found odd. Mother stated that in May 2019, while hospitalized from a stroke, she received a call from a school official reporting

that her daughter had reported being sexually assaulted by the appellant.

Mother also testified as to her relationship with appellant and about

appellant’s relationship with the victim. She described to the jury appellant’s

controlling behavior both with her and their children. It was revealed during her

testimony that appellant had a criminal history, which included prostitution and

that he was a registered sex offender. As for appellant and the victim’s relationship,

she stated that appellant always favored the victim and treated her differently from

the other children. She denied coaching or encouraging her daughters to lie or

fabricate these allegations.

Appellant elected not to testify, and attempted to call four witnesses.

He tried to call the victim’s mother, as a defense witness, after she had testified as a

state’s witness. The trial court, however, did not allow him to call her as witness

finding that she previously testified and was subject to extensive cross-examination.

Appellant’s first witness was Maple Heights Police Officer Derek

Jividen, who testified regarding a notation that he had made that indicated that

preliminary DNA testing by BCI showed “[n]o DNA profile foreign to [the victim.].”

The second defense witness was appellant’s granddaughter, who testified that

appellant had been like a father to her and that she had never known him to abuse

children. And the final defense witness, Brittani Troyer, a forensic analyst at BCI,

testified regarding a lab report that reflected that DNA testing showed that the

results were inconclusive on the vaginal samples and anal samples, but that appellant was excluded as being a possible contributor to male DNA profile

discovered on the victim’s buttocks swabs.

The jury found appellant not guilty of Counts 1 and 2, but guilty of the

remaining counts. The trial court concluded that Counts 3 and 4, and Counts 7 and

8 were allied offenses; the state elected that the court sentence appellant on Counts

3 and 7. Over objection, the trial court imposed a prison term under the Reagan

Tokes Law of eight to twelve years on Count 3, 6 years on Count 5, four years on

Count 6, and to time served on Count 7. All counts were ordered consecutive to each

other for a total prison sentence of 18 to 22 years.

Appellant now appeals, raising seven assignments of error.

III. The Appeal

A. Jail Clothing

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

erred when it allowed the jurors to view him in orange jail clothing for one full day

during the trial, which included the pro se presentation of his closing argument.

Under this assignment of error, he raises two issues — (1) whether the trial court

made a reasonable effort to ensure that he did not appear before the jury dressed in

orange jail clothing; and (2) whether the trial court and the state engaged in ex parte

communication regarding appellant’s appearance at trial in orange jail clothing. He

claims that his appearance in jail clothing creates reasonable doubt whether the

jurors were able to deliberate objectively and fairly. 1. Appearance in Jail Clothing

The United States Supreme Court has held that a defendant’s right to

due process may be violated where the defendant stands trial before a jury while

dressed in identifiable jail clothes. Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct.

1691, 48 L.Ed.2d 126 (1976). The court recognized that “the constant reminder of

the accused’s condition implicit in such distinctive, identifiable attire may affect a

juror’s judgment.” Id. at 504; see also Holbrook v. Flynn, 475 U.S. 560, 568, 106

S.Ct. 1340, 89 L.Ed.2d 525 (1986). The court, however, declined to establish a

bright-line rule requiring a conviction to be reversed where the defendant appeared

before the jury in jail clothing, recognizing that a defendant might choose to wear

identifiable jail clothing “in the hope of eliciting sympathy from the jury.” Estelle at

507-508.

To establish that a constitutional violation occurred, the defendant

must show that she or he was compelled to stand trial before a jury while dressed in

identifiable jail clothing. State v. Trowbridge, 1st Dist. Hamilton No. C-110541,

2013-Ohio-1749, ¶ 28. Even if such showing is made, the defendant must still

demonstrate that he was prejudiced by such compulsion. In State v. Grissom, 6th

Dist. Erie No. E-99-029, 2000 Ohio App. LEXIS 4977 (Oct. 27, 2000), the defendant

claimed that his appearance in jail clothing prejudiced him. The Sixth District

observed that the jury did not convict appellant of all the charges against him, which

indicated that the jury “carefully considered the evidence relating to the charges

rather than making a blanket decision that appellant was guilty because he was dressed in jail clothing at trial.” Id. at 8. Following Grissom, this court concluded

that a jury’s decision not to convict a defendant of all charges indicates the jury

carefully reviewed the evidence presented and that a brief appearance in prison

clothing did not bias the jury. State v. Hawthorne, 8th Dist. Cuyahoga No. 102689,

2016-Ohio-203, ¶ 30.

In this case, appellant appeared in civilian clothing during the first

five days of trial. On the morning of the July 26, 2021, the fifth day of trial, appellant

expressed his discomfort with the restraints around his ankles. He made these

statements in front of the jury and revealed to the jury that his ankles were shackled.

[APPELLANT]: Your Honor, these things hurt my feet. These are hurting my feet. They’re too tight. (Indicating.)

THE COURT: The jury will disregard that showing he just put on. Thank you.

[APPELLANT]: And I have had them on all week, so * * *.

Emphasis added. (Tr. 1213.)

Later that day, appellant collapsed in front of the jury during his

examination of his witness. EMS was called and transported him to the hospital.

Trial was postponed until the following day.

The next day, appellant appeared in court seated in a wheelchair and

wearing jail clothing. Outside the presence of the jury, the prosecutor stated that

earlier that day, appellant refused to get off the floor in the jail medical area to take

Ibuprofen and change his clothing. The prosecutor stated that appellant would not

come into the courtroom, so they placed him in restraints. The trial court noted that appellant was not currently in restraints, but handcuffed while seated in a

wheelchair. The state asked the court to make a finding that him appearing in jail

clothing and seated at counsel table was the least restrictive approach to allow the

parties to proceed with trial.

Appellant disagreed with the state’s assessment, stating that he was

in extreme pain and that he “did not refuse to dress in my clothes. They didn’t try

to dress me in any clothing. They put these oranges on me, and I don’t want the jury

to see me in these oranges.” (Tr. 1248-1249.)

Trial reconvened. In the presence of the jury, appellant stated “[t]his

is inhumane to be treated this way. (Defendant moaning).” (Tr. 1251.) The trial

court then advised the jury to “understand that you are not to draw any conclusions

because of the attire of the Defendant here. So, that’s it.” (Tr. at id.) The record

reflects that appellant continued making statements about his medical condition,

claiming that he was in extreme pain and he was refused medical assistance and

medication. According to appellant, he could not continue with his direct

examination of his granddaughter due to his condition.

We find that appellant was not denied his right to due process by

appearing in jail clothing because no prejudice has been shown. First, the judge told

the jurors to disregard the fact that appellant was shackled and wearing jail clothing,

and we must presume that the jurors followed the instruction. See State v. Dalmida,

1st Dist. Hamilton No. C-140517, 2015-Ohio-4995, ¶ 21, citing State v. Fears, 86 Ohio St.3d 329, 334, 715 N.E.2d 136 (1999) (jury is presumed to follow court’s

instruction to disregard defendant’s appearance in jail clothing).

Moreover, our review of the record reveals that the trial court made

every effort at the beginning of trial to ensure that the jury was unaware that

appellant was being held in jail during trial. These efforts included skirting around

counsel table to prevent the jury from seeing him shackled, the positioning of the

table, appellant appearing in civilian clothing, and side bars being conducted at

defense table. Despite these efforts, appellant, himself, revealed to the jury on the

fifth day of trial that he was in custody through his own conduct by showing the jury

the shackles on his feet and making statement that the shackles had been on his feet

“all week.” Accordingly, the fact that he appeared in jail clothing the following day

after making such display and being taken to the hospital by EMS would not have

surprised the jury to the point where it may have prejudiced appellant.

This conclusion that the jury was not prejudiced is supported by the

jury’s verdict that found appellant not guilty of two counts of rape. Following

Hawthorne, the fact that the jury did not convict appellant of all charges indicates

that the jurors were clearly able to deliberate objectively and fairly. Accordingly, we

find that appellant has failed to demonstrate how he was prejudiced by his

appearance in jail clothing on the fifth day of trial.

2. Ex Parte Communication about Jail Clothing

After trial resumed, the state cross-examined appellant’s

granddaughter. The record reveals that during this cross-examination, appellant repeatedly objected to the state’s questioning, implored his granddaughter to “plead

the fifth,” and interjected his own opinion or answers to the questions. The trial

court cautioned appellant that if his disruptions continued, the court would proceed

without the appellant’s presence in the courtroom. Following this discussion,

appellant requested a bathroom break; the court took a recess. During the recess

and outside the presence of appellant, the court made a record of what occurred

earlier that day:

THE COURT: Let the record show the Defendant is not in the room here. He is in his orange jumpsuit, so-to-speak, and I did tell the jury to not draw any conclusions on the guilt or innocence because of that. The reason we had him brought up today in the wheelchair was because we’ve been told by the sheriff’s deputies in the medical outfit that he refused any treatment this morning and he was laying on the floor, or lying on the floor I should say, and therefore we had him brought over because he wasn’t — he refused the treatment. He refused to change, things like that. Anything else you want to add?

[THE PROSECUTOR]: I would just ask, Your Honor, that the record reflect and that you adopt the findings that you had to order him brought over in a wheelchair with the handcuffs on because it was the only way to get him up. He refused to come up. That this is the least restrictive setting, or way to have him in the courtroom so that he can represent himself. And that this is — there’s no other alternatives, so that we can proceed in court.

THE COURT: There are no other alternatives. And also, let the record show that during all of the testimony of [his granddaughter], he was moaning and groaning quite a bit. And I did tell him on the record that if he continued to act out that we would just put him in the lockup and have him available by some audio ways, and apparently they’re getting to that.

***

So that can be done, but I don’t want to do that if we don’t have to. If he runs out of witnesses, he will have rested his case and we will proceed to final argument. And as I already mentioned, there is one hour for each party. And how he’s going to give his final argument, I do not know, he says he’s in a lot of pain; however, in my opinion it’s somewhat convenient for him.

[THE PROSECUTOR]: And I would place on the record, Your Honor, that certainly when he was objecting to the information about Mr. Bokmiller, that suddenly the moaning stopped, only to start up again when the jury walked in the room.

THE COURT: All right.

(Tr. 1259-1261.)

Appellant contends that the trial court violated his due process rights

because it engaged in ex parte communication with the state regarding appellant’s

appearance in jail clothing. In support, he cites to Jud.Cond.R. 2.9(B) and State v.

Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168.

Jud.Cond.R. 2.9(A) provides that “[a] judge shall not initiate, receive,

permit, or consider communications made to the judge outside the presence of the

parties or their representatives concerning a pending or impending proceeding

* * *.” Subsection (B) states that “[i]f a judge receives an unauthorized ex parte

communication bearing upon the substance of a matter, the judge shall make

provision promptly to notify the parties of the substance of the communication and

provide the parties with an opportunity to respond.”

In State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d

1168, the Ohio Supreme Court relied on these rules of judicial conduct when it found

that the trial court, on an ex parte basis, improperly elicited the state’s assistance in

drafting its judicial opinion imposing the death penalty. The court held that this ex parte communication violated Roberts’s right to due process and thus, reversed

Roberts’s death sentence.

We find that Roberts is clearly distinguishable because in that case,

the trial judge was the “final arbiter of justice” in making this ultimate decision on

whether to impose the death sentence. Id. at ¶ 160. “The trial judge is charged by

statute with the sole responsibility of personally preparing the [death-sentence]

opinion setting forth the assessment and weight of the evidence, the aggravating

circumstances of the murder, and any relevant mitigating factors prior to

determining what penalty should be imposed.” Id. at ¶ 159. Accordingly, the

Supreme Court found that the trial judge’s ex parte communication with the

prosecutor seeking assistance in drafting the opinion making such final

determination clearly undermined the confidence of the judicial process and was

contrary to law. Id. at ¶ 159-163.

In this case, the jury was the ultimate trier of fact and the

communication between the prosecutor and the trial judge occurred outside the

presence of the jury. Moreover, the communication between the trial judge and the

state merely reiterated what was already placed on the record when appellant was

present in the courtroom. Finally, as discussed above, the nature of the

communication — that appellant’s appearance in jail clothing was the least

restrictive alternative — did not affect the jury’s ability to consider the evidence

without being influenced by appellant’s courtroom attire. Accordingly, unlike the

egregious conduct in Roberts, we find that the communication here did not prejudice appellant or undermine the confidence in the judicial process in this case.

We make this finding not without recognizing that the better practice would be for

the trial court to conduct all conversations in the presence of the appellant,

especially one that is acting as his own counsel.

Appellant’s prior conduct already alerted the jury to the fact that he

may be held in jail during trial. Additionally, the record demonstrates that the jury

carefully considered the evidence when it found appellant not guilty of two counts

of rape. Finally, the trial court instructed the jury not to consider appellant’s

appearance in jail clothing as an indication of guilt. Accordingly, we find no error

and the first assignment of error is overruled.

B. Defense Witness

The state called the victim’s mother as a witness in its case-in-chief,

and the record reflects that appellant extensively cross-examined her. In fact, the

record reflects that mother testified for an entire day of trial — her testimony began

the afternoon session of court on July 21, 2021, and concluded the following day.

After the state rested its case, appellant attempted to call the victim’s

mother as his first witness. In the presence of the jury, the trial court advised

appellant that despite him subpoenaing her, the court was not allowing him to call

mother as a witness. The trial court explained that mother testified “for two days.

You can’t question her again. You cross-examined her. She’s not going to testify.”

(Tr. 1207.) Appellant objected and questioned whether the trial court was

prohibiting him from calling any witness who previously testified. The trial court responded that it “was not saying that” but reminded appellant that all of his

intended witnesses had to appear in court either “today or tomorrow morning.”

In his second assignment of error, appellant contends that the trial

court erred when it prevented him from calling the victim’s mother as a defense

witness and limited his examination of mother to solely cross-examining her as a

state’s witness. He claims that this error denied him this right to present a complete

defense as to “whether and what extent [his daughters] resented appellant’s

tendency toward being a disciplinarian.”

Evid.R. 611(A) provides that a trial court “shall exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence

so as to (1) make the interrogation and presentation effective for the ascertainment

of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from

harassment or undue embarrassment.” It is within the trial court’s discretion as to

how evidence should be presented. State v. Benitez, 8th Dist. Cuyahoga No. 96257,

2011-Ohio-5498, ¶ 79, citing State v. Gutierrez, 3d Dist. Hancock No. 5-10-14, 2011-

Ohio-3126, ¶101. Additionally, Evid.R. 403 allows the trial court to exercise

discretion in the presentation of cumulative evidence or evidence that causes undue

delay. The trial court has broad discretion in the admission and exclusion of

evidence and unless it has clearly abused its discretion and the defendant has been

materially prejudiced thereby, this court should be slow to interfere. State v.

Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). We note that appellant did not explain to the trial court why he

wanted to call the victim’s mother back to the witness stand in his defense. It is basic

to appellate practice that error, in the form of excluded testimony, is not reviewable

unless there has been a proffer of the excluded testimony or the content of such

testimony is apparent from the circumstances. Balliett v. Horan, 5th Dist. Ashland

No. 97 COA 01204, 1998 Ohio App. LEXIS 3540, 11-12 (July 27, 1998), citing Evid.R.

103. A review of the record demonstrates appellant made no proffer of the content

of the victim’s mother’s testimony or what testimony he attempted to elicit that was

beyond what she already provided. Although the record reveals that the trial court

required appellant to immediately continue with his case-in-chief, appellant could

have submitted a proffer outside the presence of the jury at the end of the day, or a

proffer could have been made in written form filed with the trial court. See Balliett

at id. Here, appellant did not avail himself to either option and even on appeal, he

fails to disclose what specific testimony he hoped to elicit from the victim’s mother

that was not cumulative or redundant of what she had already testified to during

appellant’s extensive cross-examination.

In Benitez, 8th Dist. Cuyahoga No. 96257, 2011-Ohio-5498, this court

considered a similar issue of whether the trial court abused its discretion when it

refused to allow Benitez to call two witnesses in his defense that had previously

testified in the state’s case-in-chief. Defense counsel explained to the court that the

witnesses were needed in rebuttal and to clarify previous testimony. The trial court

denied counsel’s requested finding that the justification touched on a “collateral issue” and did not justify the one witness rehashing her prior testimony and the

other witness was subject to “full and complete examination.” Id. at ¶ 82. This court

found that the trial court did not abuse its discretion because the witnesses were

extensively cross-examined and the jury was aware of the defense’s theory that the

sexual abuse allegations were fabricated. Id. at ¶ 83.

We find this court’s decision in Benitez persuasive. Here, the record

reflects that mother was subject to extensive cross-examination about the

allegations of sexual abuse by the victim. Much like in Benitez, appellant’s theory of

the case was that the victim invented the allegations because she resented him and

his disciplinarian behaviors and that mother encouraged her behavior. The record

reveals that this theory was expressed during appellant’s opening statement and

fully developed in the victim’s testimony, the sister’s testimony, and in mother’s

testimony during the state’s case-in-chief. See, e.g., tr. 546; 587-588; 755-756; 765;

999. Allowing appellant to call the victim’s mother as a witness in his case-in-chief

to reiterate this theory would have been cumulative and caused unnecessary delay.

Accordingly, we find that the trial court did not abuse its discretion

when it denied appellant’s request to recall a witness who previously testified during

the state’s case-in-chief and was subject to extensive cross-examination. His second

assignment of error is overruled.

C. Expert Vouching for Credibility

Martinez, a licensed professional counselor, testified about her

interactions with the victim and family following a referral from CCDCFS. She was not presented, qualified, or received as an expert. During the state’s examination of

Martinez, the prosecutor questioned her regarding her assessment of the victim to

determine if any diagnosis exists, and any treatment recommendations she had

made based on that diagnosis. Martinez testified that based on the information

given, she “compile[s] everything into the assessment and then talk[s] with parent

and child, about, you know, treatment recommendations, and in this case I made a

recommendation for trauma focused kind of behavioral therapy.” (Tr. 795-796.)

She testified that she diagnosed the victim with “posttraumatic stress disorder” as

“a result of the sexual assaults * * * or abuse.” (Tr. 796.) Appellant did not object.

Appellant contends in his third assignment of error that the trial court

erred when it allowed testimony from a state’s expert witness vouching for the

credibility of the accusing witness. He contends that this error violated the Ohio

Supreme Court’s decision in State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220

(1989), that prohibits an expert or lay person circumventing the factfinder’s role of

assessing the credibility and veracity of witnesses.

Because appellant did not object, we review this assignment of error

under a plain error standard of review. Crim.R. 52(B) Under Crim.R. 52(B), plain

errors affecting substantial rights may be noticed by an appellate court even though

they were not brought to the attention of the trial court. To constitute plain error,

there must be (1) an error, i.e., a deviation from a legal rule, (2) that is plain or

obvious, and (3) that affected substantial rights, i.e., affected the outcome of the

trial. State v. Barnes, 94 Ohio St. 3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Even if the error satisfies these prongs, appellate courts are not required to correct the

error. Id., citing Crim.R. 52(B). Appellate courts retain discretion to correct plain

errors. Id. Courts are to notice plain error under Crim.R. 52(B), “‘with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’” Id., quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978).

An expert may not testify as to the expert’s opinion about the veracity

of the statements of a child victim. Boston at 129. Such testimony is presumptively

prejudicial and inadmissible because it “‘infringe[s] upon the role of the fact finder,

who is charged with making determinations of veracity and credibility.’” Id. at 128-

129, quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988)

(Brown, J., concurring). This court has implied, however, that “‘Boston does not

apply when the child victim actually testifies and is subjected to cross-examination.’”

State v. Djuric, 8th Dist. Cuyahoga No. 87745, 2007-Ohio-413, ¶ 44, quoting; State

v. Benjamin, 8th Dist. Cuyahoga No. 87364, 2006-Ohio-5330, ¶ 19. In this case, the

victim testified and was subject to cross-examination where she stated that

appellant sexually assaulted her on two different occasions. Additionally, when

appellant asked her how he had hurt her, the victim responded, “he’s left me with

trauma.” (Tr. 644.)

More importantly, however, Martinez did not testify whether she

believed the victim or whether the victim was being truthful. Rather, she explained

to the jury her interactions with the victim, her assessment of the victim, her diagnosis, and treatment options. She stated that the symptoms that the victim

reported satisfied the criteria for post-traumatic stress disorder, which was a result

of the sexual assaults that the victim reported. Martinez did not opine that these

allegations were truthful or credible. Accordingly, Boston does not apply.

Based on the foregoing, we find no obvious error that affected the

substantial rights of appellant that would require this court to make a finding of

plain error. The third assignment of error is overruled.

D. Jury Instructions

Appellant contends in his fourth assignment of error that the trial

court erred when it instructed the jury that they could “consider prior criminal

activity in considering the guilt or innocence of the accused.”

After all parties rested, the trial court provided the jury its

instructions for deliberation. Following the instructions, the trial court asked the

parties if any additions or deletions were requested. The prosecutor asked about its

Evid.R. 404(A) proposed instruction that allowed the state to rebut the appellant’s

character and reputation evidence. The trial court then stated:

THE COURT: I did talk about prior criminal activity.

[THE PROSECUTOR]: And I think we had submitted a 404(A) proposed instruction to the Court and to the Defendant just talking about the fact that information has been offered with regards to the Defendant’s reputation, the State is allowed to rebut that and that information will be used for reputation or rebuttal alone.

THE COURT: Right. I think you can consider prior criminal acts. I certainly —

[APPELLANT]: Say that again. Could you say that again. THE COURT: Yeah, you can consider prior criminal activity in considering the guilt or innocence of the accused.

(Tr. 1341-1342.) The appellant did not object to the court’s statement.

Although the trial court made this statement to the parties in the

presence of the jury, the verbal and written instructions provided to the jurors did

not contain any such statement. The trial court gave the jury a standard “other acts

evidence” jury instruction:

Now, evidence was received about the commission of crimes other than the offenses with which the Defendant is charged in this trial. That evidence was received only for a limited purpose. It was not received, and you should not consider it, to prove the character of the Defendant in order to show that he acted in conformity or in accordance with that character.

If you find that the evidence of other crimes is true and the Defendant committed them, you may consider that evidence only for the purpose of deciding whether it proves: the absence of mistake or accident; or the Defendant’s motive, opportunity, intent, and purpose, preparation, or plan to commit the offense charged in this trial; or knowledge of certain circumstances surrounding the offense charged in this trial; or the identity of the person who committed the offense in this trial. That evidence cannot be considered as other acts or for any other purpose.

(Tr. 1325.)

Generally, “[i]n examining errors in a jury instruction, a reviewing

court must consider the jury charge as a whole and ‘must determine whether the

jury charge probably misled the jury in a matter materially affecting the complaining

party’s substantial rights.’” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114

N.E.3d 1092, ¶ 115, quoting Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 652

N.E.2d 671 (1995), quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202,

208, 560 N.E.2d 165 (1990). However, appellant did not object to the jury instructions given, so we

review for a determination of whether the trial court committed plain error. State

v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.); see

also Crim.R. 30(A). Plain error does not exist unless the defendant shows that the

outcome of the trial clearly would have been different but for the alleged erroneous

instruction. Id. at ¶ 32, citing State v. Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339

(1994), and Cleveland v. Buckley, 67 Ohio App.3d 799, 588 N.E.2d 912 (8th

Dist.1990).

In this case, we find that the trial court gave the jury the proper

instruction regarding evidence of other acts. We presume the jury followed those

instructions. See State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995);

Pang v. Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990). And although the

trial court directed a general statement to the parties about the consideration of

other crimes when deciding guilt or innocence, the trial court did not include this

instruction in its specific advisement or in the written form that was provided to the

jury. Moreover, the jury’s verdict clearly demonstrates that it was not prejudicially

swayed by the appellant’s prior criminal conduct. Accordingly, we find that the trial

court did not commit plain error in making this broad statement to the parties.

Appellant’s fourth assignment of error is overruled.

E. Cumulative Effect of Errors

Appellant contends in his fifth assignment of error that the

cumulative effect of trial-court errors denied him his right to a fair trial. Under the cumulative-error doctrine, “a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of a fair trial even

though each of the numerous instances of trial-court error does not individually

constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,

971 N.E.2d 865, ¶ 223. We have found no error. Thus, the doctrine of cumulative

error does not apply to this case, and we overrule this assignment of error.

F. Manifest Weight of the Evidence

Appellant contends in his sixth assignment of error that the findings

of guilt for Counts 3, 4, and 6 are against the manifest weight of the evidence. He

does not challenge his convictions on Counts 5 (burglary) and 7 (intimidation). We

initially note that Counts 3 and 4 were merged for sentencing with the state electing

to impose sentence on Count 3. Accordingly, this court will only address Counts 3

and 6 under this assignment of error.2

The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ * * *, declaring that ‘manifest weight’ and ‘legal sufficiency’

are ‘both quantitatively and qualitatively different.’” Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 10, quoting State v. Thompkins, 78

Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus.

2 For the purposes of R.C. 2941.25, a conviction consists of a guilty verdict and the imposition of a sentence or penalty. Because Count 4 merged with Count 3 for sentencing, no conviction exists on Count 4, and therefore, we cannot individually review the evidence supporting that findings of guilt. See, e.g., State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685. This rationale applies to both sufficiency and manifest weight challenges. See State v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 23; citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990) Weight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. * * * Weight is not a question of mathematics, but depends on its

effect in inducing belief.” Eastley at ¶ 12, quoting Thompkins at 387. In a manifest

weight analysis, this court sits as a “thirteenth juror,” and reviews “‘the entire record,

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

witnesses, and determines whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’” Thompkins at id., quoting

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

discretionary power to grant a new trial should be exercised only in exceptional cases

where the evidence weighs heavily against the conviction. Thompkins at 386.

Appellant was found guilty of Count 3, rape, in violation of R.C.

2907.02(A)(2). The indictment charged that on or about May 13, 2019, appellant

engaged in sexual conduct to wit: vaginal intercourse, with [the victim] by purposely

compelling her to submit by force or threat of force.

Appellant was also found guilty of Count 6, sexual battery, in violation

of R.C. 2907.03(A)(5). The indictment charged that on or about December 9, 2018,

to May 13, 2019, Appellant engaged in “sexual conduct with [the victim] not his

spouse, and [appellant] being the father of [the victim].”

Appellant contends that his convictions are against the manifest

weight of the evidence because the physical evidence from the Y-STR DNA testing and the SANE nurse examination was inconclusive and uncertain. Specifically, he

contends that although the state’s expert testified about the presence of male-

specific DNA on the victim’s front and back panels of her underwear, the state’s

expert admitted that this DNA could have come from laundry or other household

transfers. Additionally, appellant contends the evidence weighs against conviction

because that the Y-STR male-specific profile from one of the swabs specifically

excluded appellant as a contributor. Finally, he directs this court to the SANE

nurse’s testimony that the redness observed at the base of the victim’s hymen could

have been caused by events other than sexual assault.

Although appellant identifies the evidence most favorable to him, the

jury also heard testimony from the victim that after appellant sexually assaulted her,

“he got off of me and then went to go get a rag and wipe me and clean me up.” (Tr.

569, 607). Additionally, the victim testified that she showered after the assault and

changed her clothing, including her underwear. Accordingly, while the physical

evidence seems inconclusive or uncertain, the jury also heard testimony that would

justify or explain the lack of physical evidence recovered in this case.

Appellant also contends that his convictions are against the manifest

weight of the evidence because the trial court improperly allowed the state’s witness

to improperly vouch for the credibility of the victim. We disagree. First, this court

in addressing appellant’s third assignment of error concluded that Martinez did not

impugn the jury’s role of assessing credibility. At no time did Martinez testify that she found the victim truthful, her accusations credible, or that she believed the

victim’s allegations.

While we consider the credibility of witnesses in a manifest weight

challenge, we remain mindful that the determination regarding witness credibility

rests primarily with the trier of fact who hears all the testimony and is in the best

position to observe the witnesses at trial. State v. Kilton, 8th Dist. Cuyahoga No.

106864, 2019-Ohio-87, ¶ 20, citing State v. Mossburg, 8th Dist. Cuyahoga No.

98769, 2013-Ohio-1664, ¶ 22. In this case, the jury heard direct testimony from the

victim surrounding the rape and sexual battery. Accordingly, the jury was in the

best position to observe the victim’s demeanor and make its own determination

regarding the victim’s credibility. Appellant does not direct this court to any

inconsistencies in her testimony or any other witnesses whose testimony would

render her testimony incredible.

Accordingly, we find that the jury did not lose its way in convicting

appellant of rape and sexual battery. This case is not the exceptional case where the

evidence weighs heavily against the convictions. Accordingly, appellant’s sixth

G. Reagan Tokes

In his seventh assignment of error, appellant contends that the trial

court erred when it sentenced him to an indefinite sentence under the Reagan Tokes

Law because the law violates constitutional guarantees of due process, the

separation-of-powers doctrine, and the right to trial by jury. Based on the authority established by this district’s en banc holding

in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges

appellant advances against the constitutional validity of the Reagan Tokes Law have

been overruled. Id. at ¶ 17-54. Accordingly, his seventh assignment of error is

summarily overruled.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

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

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

remanded to the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and LISA B. FORBES, J., CONCUR

N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). (Forbes, J., dissenting).