State v. Trout

2020 Ohio 3940

• Court: Ohio Court of Appeals
• Decided: July 23, 2020
• Docket: 19CA3866
• Status: Published

Opinion

[Cite as State v. Trout, 2020-Ohio-3940.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 19CA3866 : vs. : : SHERI K. TROUT : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Anna Villarreal, Chillicothe, Ohio, for Appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, Jay Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. _____________________________________________________________

Smith, P. J.

{¶1} Sheri K. Trout, (“Appellant”), appeals the judgment entry of the

Scioto County Court of Common Pleas dated January 30, 2019. At the close

of a jury trial, Appellant was convicted of three counts of rape and one count

of endangering children. After merging several of the counts, the trial court

imposed a consecutive prison sentence of eighteen years to life. On appeal,

Appellant asserts that (1) the trial court abused its discretion in finding the

minor child victim competent to testify at trial; (2) trial counsel was

ineffective for failing to submit proposed questions prior to the child Scioto App. No. 19C3866 2

victim’s competency hearing; (3) trial counsel was ineffective for failing to

cross-examine eight of the State’s witnesses; and (4) the evidence at trial

was insufficient or in the alternative the conviction was against the manifest

weight of the evidence. Upon review, we find no merit to any of

Appellant’s assignments of error. Accordingly, all assignments of error are

overruled and the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

{¶2} On February 28, 2018, Appellant and Brian E. Powers were

jointly indicted as follows:

Count One, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of the

first degree;

Count Two, Illegal Use of Minor in Nudity-Oriented Material or

Performance, R.C. 2907.323(A)(3), 2907.323(B), a felony of the fifth

degree;

Count Three, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of

the first degree;

Count Four, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of the

Count Five, Kidnapping, R.C. 2905.01(A)(4), 2905.01(C)(1), a felony

of the first degree; Scioto App. No. 19C3866 3

Count Six, Kidnapping, R.C.2905.01(A)(4), 2905.01(C)(3), a felony

of the first degree;

Count Seven, Endangering Children, R.C. 2919.22(A),

2919.22(E)(2)(c), a felony of the third degree; and,

Count Eight, Intimidation of an Attorney, Victim, or Witness in a

Criminal Case, R.C. 2921.04(B)(1), 2921.04(D), a felony of the third

degree.1 The alleged victim, A.C., is Appellant’s granddaughter. A.C. was

four years old at the time of the alleged crimes. Powers, the co-defendant,

was Appellant’s boyfriend. The allegations of sexual misconduct came to

light when A.C.’s father, Brian Carver, and her step-mother, Michelle

Carver, took her to the emergency room for an unrelated medical condition.

{¶3} Appellant was subsequently served with the indictment,

arraigned, and appointed counsel. The matter was scheduled for a jury trial

and continued several times. The State filed several motions, including a

motion to consolidate the defendants’ cases for purposes of trial; a motion

permitting the State of Ohio to provide the testimony of the minor victim via

closed-circuit television; and a memorandum regarding introduction of

hearsay in child abuse cases. Defense counsel also filed a Memorandum

Contra to State’s Motion to Consolidate; a motion to dismiss based on

1 Appellant was not joined as to Counts Two and Eight. Several counts also contained specifications for Powers as a sexually violent predator. Scioto App. No. 19C3866 4

failure to provide discovery; and a motion to dismiss based on speedy trial

violations.

{¶4} On September 25, 2018, the trial court held a hearing in

chambers to determine the issue of A.C.’s competence to testify. The trial

court found A.C. to be a competent witness.

{¶5} The matter proceeded to trial. The prosecution’s theory of

Appellant’s guilt was through her complicity to Powers’ acts of sexual

abuse. A court order issued from the Scioto County Common Pleas Court,

Juvenile Division, dated April 21, 2017, contained provisions modifying

Appellant’s visitation with A.C. In particular, the order contained provisions

explicitly stating that: (1) Hannah Giles, A.C.’s mother, had no visitation

privileges; and, (2) Brian Powers was not to be present for any visits. The

prosecutor argued that Appellant was complicit with Powers’ criminal

conduct by failing to comply with the juvenile court’s order and permitting

Powers to be present in her home when A.C. visited. The State of Ohio

presented 16 witnesses, including A.C.

{¶6} The following facts were introduced into evidence at trial: On

July 20, 2017, Brian Carver left A.C. at Appellant’s house pursuant to the

visitation order. The next morning, Alice Hamilton, Appellant’s mother,

appeared at Carver’s home with A.C. She informed Carver that Appellant Scioto App. No. 19C3866 5

and Powers had gotten into an argument and “it was just best that [A.C.]

came home. A.C. had bug bites on her legs.

{¶7} Later in the day, Brian and Michelle Carver took A.C. to Mercy

Urgent Care to have the bug bites examined. According to Brian Carver,

when the doctor left the room, A.C. put her hand on her breast and vaginal

area. She had never done that before. When she was asked what was

wrong, A.C. turned white. She appeared scared and upset. Then A.C. told

them, “Peter does that to [me].” Michelle Carver recalled the revelation

slightly differently. She testified that when the doctor stepped out, A.C. told

them that they were “playing doctor and Peter hurt me. He touched me

down there.” Michelle Carver left the room, found the doctor, and advised

that they thought A.C. had been molested. Carver further testified that after

the allegations surfaced, A.C. exhibited turbulent behavior such as crying,

hiding, and having tantrums in their home.

{¶8} The Carvers were advised to take A.C. to Southern Ohio

Medical Center’s (SOMC) Emergency Room. SOMC called the Portsmouth

Police Department and Detective Michael Hamilton arrived to interview

A.C. From there, the Carvers were advised to take A.C. to Adena “where

they specialized in sexual assault.” Scioto App. No. 19C3866 6

{¶9} At Adena, A.C. was examined by Ashley King, a SANE2 nurse

who collected the rape kit evidence from A.C. Ms. King specifically

remembered A.C. and the difficulty of performing the physical examination.

A.C. was scared and crying hysterically. At one point, A.C. sat up, looked at

King and said, “That’s why I popped up when he did it, because it hurt so

bad.” King testified there was redness in the vaginal area; abrasions,

redness, and swelling; redness and swelling down into the rectal area; and a

“beefy red and swollen” hymen. The Carvers and A.C. were referred to the

Child Protection Center in Ross County, Ohio for further evaluation.

{¶10} At the Child Protection Center, Ashley Muse-Gigley, another

SANE nurse, interviewed A.C. and recorded the interview, which was

played for the jury. Dr. Zoran Naumvoski, a director at the Child Protection

Center, testified he interviewed A.C. two weeks later. In speaking with

A.C., she told Dr. Naumvoski that “Pappaw Brian hurt her.” Upon doing so,

A.C. immediately pointed to her genital area.

{¶11} In addition to the specifics of the abuse as reported, A.C.

testified that “Peter” wasn’t real. * * * Brian Powers told [me]to say that.”

A.C. testified she told the lie “because he told me to.”

2 Sexual Assault Nurse Examiner. Scioto App. No. 19C3866 7

{¶12} Cynthia Justice testified she treated A.C. from August 2017 to

June 2018. She diagnosed A.C. with post-traumatic stress disorder.

Although Justice was aware of the allegations of child abuse, she did not

learn of them from A.C. until March 16, 2018, during a home visit. Justice

read from her therapy note of that date as follows:

While discussing her daily activities she blurted out details - -

details of the alleged sexual abuse by grandmother’s boyfriend.

She stated, I yelled for Sheri to help and she came in and told

me - - or told him, referring to Brian Powers, as she called him

by name, to get off my daughter, referring to self, this is in

parenthesis [sic], or I will smack you in the face. He once

busted the bathroom door. He came back and made her bleed.

She called the cops. She protected me.

{¶13} In addition to witness testimony, the State offered 34 exhibits

which were admitted into evidence, including: the juvenile court’s entry;

medical records of A.C. from Adena Health System, the Child Protection

Center, and Mahajan Therapeutics; A.C.’s rape kit; oral swabs; the

interview of A.C. from the Child Protection Center; a DNA analysis report

from the Ohio Bureau of Criminal Investigation (“BCI”); photographs of

Appellant’s home; and chain of custody forms from the Portsmouth Police Scioto App. No. 19C3866 8

Department and BCI. At the close of trial, Appellant was convicted of three

counts of rape, R.C. 2907.02(A)(1)(b) and one count of endangering

children, R.C. 2919.22(A)/R.C. 2919.22(E)(2)(c).

{¶14} The trial court stated as follows:

[T]he defendant has been convicted by the jury of Count 1:

Rape, in violation of Ohio Revised Code Section

2907.02(A)(1)(b), a felony of the first degree. The Jury

further found, beyond a reasonable doubt, that the victim was

under the age of ten (10). Count 3: Rape, in violation of

Ohio Revised Code Section 2907.02(A)(1)(b), a felony of the

first degree. The Jury further found, beyond a reasonable

doubt, that the victim was under the age of thirteen (13), and

resulting in serious physical harm. Count 4: Rape, in

violation of Ohio Revised Code Section 2907.02(A)(1)(b), a

felony of the first degree. The Jury further found, beyond a

reasonable doubt, that the victim was under the age of

thirteen (13), and force or threat of force. Count 7:

Endangering Children, in violation of Ohio Revised Code

Section 2919.22(A), 2919.22(E)(2)(c), a felony of the third Scioto App. No. 19C3866 9

degree. The Jury further found, beyond a reasonable doubt,

resulting in serious physical harm.

The trial court then sentenced Appellant to fifteen years to life on Count 1

rape. The court further found that Counts 3 and 4, also rape, merged with

Count 1. Appellant was sentenced to a thirty-six month prison term on

Count 7, Endangering Children. Appellant’s consecutive sentence was a

total aggregate prison term of 18 years to life.

{¶15} This timely appeal followed. Where pertinent, additional facts

are set forth below.

ASSIGNMENTS OF ERROR

“I. THE TRIAL JUDGE ABUSED HIS DISCRETION IN FINDING A.C. COMPETENT TO TESTIFY AT TRIAL.

II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBMIT PROPOSED QUESTIONS PRIOR TO A.C.’S COMPETENCY HEARING. THIS FAILURE PREJUDICED APPELLANT, AFFECTED THE OUTCOME OF THE COMPETENCY HEARING, AND AFFECTED THE OUTCOME AT TRIAL.

III. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CROSS-EXAMINE EIGHT OF THE SIXTEEN WITNESSES PRESENTED BY THE STATE, INCLUDING A.C. THIS FAILURE UNFAIRLY PREJUDICED APPELLANT, AND UNDERMINED THE RESULT AT TRIAL.

IV. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF RAPE AND CHILD ENDANGERMENT; OR IN THE ALTERNATIVE Scioto App. No. 19C3866 10

THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

ASSIGNMENT OF ERROR ONE - WITNESS COMPETENCY

A. STANDARD OF REVIEW

{¶16} “ ‘A determination of competency is within the sound

discretion of the trial court and will not be reversed on appeal absent a clear

abuse of discretion.’ ” State v. Hammond, 4th Dist. Ross No. 18CA3662,

2019-Ohio-4253, at ¶ 36, quoting, State v. Maxwell, 139 Ohio St. 3d 12,

2014-Ohio-1019, 9 N.E. 3d 390, at ¶ 100. An abuse of discretion is more

than an error of law or of judgment. Instead, it implies that the court acted

in an unreasonable, arbitrary or unconscionable manner. See, e.g.,

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983);

Wilson v. Wilson, 4th Dist. Lawrence No. 19CA1, 2009-Ohio-4978, at ¶ 17.

B. LEGAL ANALYSIS

{¶17} Appellant asserts that A.C., age four at the time of the

alleged sexual conduct, did not have an ability to accurately receive,

recollect, and communicate information. Furthermore, it is asserted that

even when A.C. testified at age five at the competency hearing, and at age

six by the time of trial, she was not able to appreciate the heavy

responsibility and weight of the oath. Appellant asserts the trial court failed Scioto App. No. 19C3866 11

to make the minimum required determination and unreasonably and

arbitrarily found A.C. competent to testify. Appellant argues the record

reflects only 13 pages of testimony (which was “small talk” or brief

answers), and argues that the trial court did not ask sufficient questions

regarding the consequences for telling lies under oath. Appellant concludes

this decision amounted to an error of law and constitutes an arbitrary and

unreasonable abuse of discretion.

{¶18} The trial court found as follows:

The Court finds that the child victim is under ten years of age.

The child was interviewed, on the record, in chambers, without

the presence of the Defendant, Counsel for the Defendant, or

the State. This Court, prior to the interview, invited the

submission of proposed questions. Proposed questions were

not submitted by the Defendant or the State. The Court finds

upon reviewing the briefs of counsel and considering the child’s

interview by this Court, that the child victim is competent to

testify at trial. The Court further finds that the child victim has

the ability to receive accurate impressions of fact, has the

ability to accurately recollect the impressions, and has the

ability to relate the impressions truthfully. Scioto App. No. 19C3866 12

{¶19} R.C. 2317.01 provides that, “All persons are competent

witnesses except those 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.”

Evidence Rule 601 also provides the general rule governing the competency

of witnesses. Hammond, supra, at ¶ 36. It states, in relevant part, “[e]very

person is competent to be a witness except: (A) ... 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.”

Evid.R. 601(A). “A trial court must conduct a voir dire examination of a

child under ten years of age to determine the child’s competence to testify.”

Maxwell, supra, at ¶ 100. The court must consider the following factors in

making this determination:

(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. Scioto App. No. 19C3866 13

Id.; citing State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483

(1991).

{¶20} At the hearing to determine A.C.’s competence to testify,

the trial court inquired as follows:

The Court: Okay. Now, I don’t want you to tell me about

anything that happened, but what I want to know

is, do you know what it is to tell the truth? Do you

know what that means?

Minor Female: Yes.

The Court: Do you know what it means to tell a lie?

***

The Court: Now, if I took this file here - - this is - - this is - -

it’s called a file, and told you that file is red would

I be telling you the truth?

Minor Female: No.

The Court: Would I be telling you a lie?

The Court: I would?

Minor Female: Yes. Scioto App. No. 19C3866 14

The Court: Okay. That’s not red?

Minor Female: Nope.

The Court: Okay. Are you sure?

Minor Female: Yes. It’s not.

The Court: All right. If I told you right now it - - it was - - it’s

dark outside is that the truth or a lie?

Minor Female: A lie.

The Court: Okay. If I told you my shoe was brown is that the

truth?

The Court: Okay. If I said your shoes are brown is that the

The Court: Okay. All right. Okay. Now, do you know that

you’re not supposed to tell lies?

Minor Female: Yes, I know.

*** Scioto App. No. 19C3866 15

The Court: Okay. Would you ever lie to anybody about

anything that ever happened to you?

The Court: Okay. All right. Have you ever lied about

anything that had ever happened to you?

Minor Female: I never lie.

The Court: Okay. So, at some time probably, you’re going to

be asked some questions about what happened to

you. Do you understand that? Do you know - -

what are you supposed to do when you’re asked

those questions? Do you know what you’re

supposed to do?

The Court: What?

Minor Female: Tell the truth.

The Court: Tell the truth. Can you do that?

Minor Female: Um hmmm.

The Court: I think you know the difference between the truth -

- a truth and a lie, don’t you? Scioto App. No. 19C3866 16

Minor Female: Uh huh.

{¶21} Appellant argues that the trial court failed to focus on the

consequences for telling lies under oath. The transcript does reveal the trial

court’s failure to ask an explicit question relating to the consequences for

lying and the meaning of the oath. We also observe that after the trial court

found A.C. competent to testify, neither defense counsel interposed an

objection after the court issued its ruling, prior to A.C.’s testimony, or at any

point during the trial.

{¶22} “ ‘Any errors not brought to the attention of the trial court by

objection or otherwise are waived and may not be raised on appeal unless

they rise to the level of plain error.’ ” State v. Cook, 4th Dist. Gallia No.

18CA11, 2019-Ohio-4745, at ¶ 28, quoting, State v. Swint, 2018-Ohio-5384,

¶ 25. “To constitute plain error, a reviewing court must find (1) an error in

the proceedings, (2) the error must be a plain, obvious or clear defect in the

trial proceedings, and (3) the error must have affected ‘substantial rights’

(i.e., the trial court’s error must have affected the trial’s outcome).” Cook,

supra, at ¶ 29, quoting State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-

39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill, 92 Ohio St.3d 191,

749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240 (2002). “Furthermore, notice of plain error must be taken with Scioto App. No. 19C3866 17

the utmost caution, under exceptional circumstances, and only to prevent a

manifest miscarriage of justice.” State v. Landrum, 53 Ohio St.3d 107, 111,

559 N.E.2d 710 (1990), and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978), paragraph three of the syllabus. “A reviewing court should

notice plain error only if the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. Based upon our review of this

case, we find the trial court did not commit plain error in finding A.C.

competent to testify.

{¶23} The competency hearing transcript reveals that A.C. answered

questions which demonstrated an ability to receive accurate impressions of

fact, an ability to recollect impressions and observations, and the ability to

communicate her knowledge. A.C. was able to tell the trial court her full

name, the month and day of her birth, street of residence, parents’ names,

grade in school, name of school, teacher’s name, and siblings’ names. She

testified she liked to eat, watch television, and play outside. The record does

not reveal an inordinate use of leading questions or that A.C. was unable to

recollect or communicate her answers. While the judge gave A.C. a couple

pieces of candy, nothing indicates this was used to “reward” her for

“correct” answers to questions. Scioto App. No. 19C3866 18

{¶24} While we agree that the trial court could have asked explicit

questions regarding her understanding of negative consequences for lying or

her understanding of the oath, we find that A.C.’s answers implicitly

demonstrate that she understood there may be negative consequences for

lying. For instance, after being asked “Would you ever lie?” and a follow-

up, “Have you ever lied?” A.C. answered: “I never lie.” Additionally,

“ ‘[t]he child's appearance, fear or composure, general demeanor and manner

of answering, and any indication of coaching or instruction as to answers to

be given are as significant as the words used in answering during the

examination to determine competency.’ ” State v. Azbell, 5th Dist. Fairfield

No. 04CA11, 2005-Ohio-1704, at ¶ 21, quoting, State v. Wilson, 156 Ohio

St. 525, 103 N.E.2d 552 (1952). See also State v. Mayer, 4th Dist. Highland

No. 99CA8, 200-Ohio-2014, at *2. As to the above-referenced indicators,

the trial court was in the best position to observe A.C.’s demeanor and

manner of answering. See also State v. Cobb, 81 Ohio App.3d 179, 182, 610

N.E.2d 1009 (9th Dist.1991), (Trial court is in a far better position to

determine the competency of a child witness, particularly in light of the

child’s testimony at trial.)

{¶25} This conclusion is further bolstered by A.C.’s testimony at trial.

The trial transcript reflects that after being given the oath, the prosecutor Scioto App. No. 19C3866 19

asked A.C.: “Do you know what that means? A.C. replied “No.”

Thereafter, the following exchange occurred:

Q: Okay. The Judge is asking you to tell the truth in here.

Okay.

A: Um hmm.

Q: Do you know what that - - what it means to tell the truth?

A: Yes.

Q: What does that mean?

A: You tell the truth and don’t lie.

Q: Okay. What happens if you tell a lie?

A: You get grounded.

Q: You get grounded. Okay. So, if I told you my hair is hot

pink right now would that be the truth or a lie?

A: A lie.

Q: That would be a - - it’s not pink?

A: No.

{¶26} A.C.’s answers above demonstrate an awareness of the negative

consequences for lying. In State v. Lee, 90 Ohio App. 3d 282, 459 N.E.2d

910 (9th Dist.1983), the trial court found that the child’s inability to define

“oath” was not dispositive of the question of her competency in light of her Scioto App. No. 19C3866 20

testimony at trial. See also, State v. Larie, 5th Dist. Licking No. 96CA51,

1996 WL 753171 (Dec. 16, 1996), at *2, wherein the appellate court found

that certain dialogue on truthfulness and what it means to be truthful fulfilled

the requirement regarding the meaning of the oath.

{¶27} Appellant has directed us to A.C.’s cross-examination,

where counsel for Brian Powers inquired as follows:

Q: Do you remember a year and a half ago back in July when all

this was supposed to happen?

Q: NO.

A: Huh uh.

Q: You don’t remember that?

Q: Well, the reason I asked, is Julie asked you if you

remembered the Judge and you said you didn’t. This

summer you would have gone into his office and talked

with him a little bit, told him about Teen Titans. Does

that sound familiar?

Later during cross-examination: Scioto App. No. 19C3866 21

Q: Okay. They took you to a doctor and you talked to a

nurse lady - -

Q: - - in a room with a little table?

A: Yeah.

Q: Do you remember talking with her?

Q: Okay. So, if I play a little video of that would that help

you remember?

{¶28} We do not find A.C.’s inability to recall certain past details as

fatal. In State. V. Lee, 90 Ohio App.3d 282, 459 N.E.2d 910 (9th Dist.1983),

the appellate court found that the child victim’s inability to accurately assign

a date to past events did not hinder her ability to competently render

testimony, as the date of the offense, material to conviction, was testified to

by other witnesses. Id. at 282. In this case, co-defense counsel played the

video of A.C. speaking with SANE nurse Ashley Muse-Gigley, and actually

rehabilitated A.C.’s testimony as follows:

Q: Okay. [A.C.], do you remember that?

A: Yeah. Now I do. Scioto App. No. 19C3866 22

{¶29} “When determining a child's reasoning ability, as when

determining a child's competency, ‘[a] trial court is not required * * * to

make express findings on the considerations outlined in Frazier. * * *

Instead, the trial court is merely required to consider the Frazier factors

while making the * * * determination.’ ” State v. Rizer, 4th Dist. Meigs No.

10CA3, 2011-Ohio-5702, at ¶ 21, quoting, Schulte v. Schulte, 71 Ohio St.3d

41, 43, 641 N.E.2d 719 (1994). See also Wilson v. Wilson, 4th Dist.

Lawrence No. 09CA1, 2009-Ohio-4978, at ¶ 16. In the absence of evidence

to the contrary, we presume that the trial court properly applied the Frazier

factors and that it did not abuse its discretion or commit plain error by

finding A.C. to be competent as a witness despite her young age.

{¶30} Based on the foregoing, we find no merit to Appellant’s first

assignment of error. Though not explicitly stated in terms of consequences,

A.C. was able to recall, recognize, and communicate a negative consequence

for untruthfulness, i.e. “you get grounded.” Our conclusion is further

bolstered by A.C.’s direct examination testimony at trial. As such, we

overrule the first assignment of error.

ASSIGNMENTS OF ERROR TWO AND THREE- INEFFECTIVE ASSISTANCE OF COUNSEL

A. STANDARD OF REVIEW Scioto App. No. 19C3866 23

{¶31} To prevail on a claim of ineffective assistance of counsel, a

criminal defendant must establish (1) deficient performance by counsel, i.e.,

performance falling below an objective standard of reasonable

representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different.

State v. Wilson, 4th Dist. Lawrence No. 18CA15, 2019-Ohio-2754, at ¶ 25;

State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121,

¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). In Ohio a properly licensed attorney is presumed

competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 62. Thus, in reviewing the claim of ineffective assistance of

counsel, we must indulge in “a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy,’ ” Wilson,

supra, quoting Strickland at 697, 104 S.Ct. 2052. Failure to satisfy either

part of the test is fatal to the claim. Id.; State v. Bradley, 42 Ohio St.3d 136,

143, 538 N.E.2d 373 (1989); State v. Ruble, 2017-Ohio-7259, 96 N.E.3d

792, ¶ 47 (4th Dist.).

B. LEGAL ANALYSIS Scioto App. No. 19C3866 24

1. Was defense counsel ineffective for failing to submit proposed questions prior to A.C.’s competency hearing?

{¶32} R.C. 2317.01, set forth above, also provides that the

court may allow the prosecutor, guardian ad litem, or attorney for any party

to submit questions for use by the court in determining whether a minor

child is a competent witness. Appellant asserts that trial counsel failed to

submit any proposed questions prior to the competency hearing and thereby

prejudiced Appellant and affected the outcome of the competency hearing,

which in turn affected the outcome of the trial. Appellant asserts that had

trial counsel submitted proposed questions, the trial judge could have been

directed to the minimum determinations he needed to make in order to find

A.C. competent or to the shortcomings of her competency.

{¶33} Appellant argues that had questions been submitted, A.C.

would likely not have been found competent to testify. Appellant concludes

that by not eliminating A.C. as a witness, watching the six-year-old child

testify via closed-circuit television had an effect on the jurors and the

outcome of the trial. For the reasons which follow, we disagree.

{¶34} Neither defense counsel for Appellant, counsel for co-

defendant Powers, nor the State of Ohio submitted proposed questions for

the trial court. In State v. Cobb, supra, the appellate court noted the

provision for submission of questions pursuant to R.C. 2317.01 and also Scioto App. No. 19C3866 25

observed that the statute does not require the trial court to use these

questions. Our research has yielded no authority to the contrary.

{¶35} Given that the trial court had discretion whether or not to utilize

proposed questions, we find it to be pure speculation to conclude that

defense counsel’s failure to submit proposed questions constituted deficient

performance or otherwise affected the outcome of the competency hearing

and the outcome of the trial. As explained above, the record reflects that at

the competency hearing, A.C. testified “I never lie.” At trial, the prosecutor

asked her if she understood the oath and began a dialogue regarding

truthfulness and untruthfulness. A.C. was able to articulate the negative

consequences for untruthfulness, which in her experience was, “You get

grounded.”

{¶36} Based on the foregoing, we find Appellant failed to satisfy

either prong of the Strickland test necessary to support a claim of ineffective

assistance of counsel for counsel’s failure to submit proposed questions. As

such we find no merit to Appellant’s argument herein.

2. Was defense counsel ineffective for failing to cross-examine eight of the State’s sixteen witnesses presented at trial?

{¶37} Appellant also asserts counsel was ineffective for failing

to cross-examine eight of the witnesses at trial, including A.C. Appellant

argues counsel failed to call into question these witnesses’ testimony, Scioto App. No. 19C3866 26

competency, or motives. Appellant concludes that trial counsel did not take

an active role and that this was not a tactical decision but instead, the

omission fell below the standard of reasonable representation. For the

reasons which follow, we again disagree.

{¶38} “Generally, ‘[t]he extent and scope of cross-examination

clearly fall within the ambit of trial strategy, and debatable trial tactics do

not establish ineffective assistance of counsel.’ ” State v. Guysinger, 4th

Dist. Ross No. 15CA3514, 2017-Ohio-1167, at ¶ 27, quoting, State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 146.

Moreover, “ ‘[a]n appellate court reviewing an ineffective assistance of

counsel claim must not scrutinize trial counsel's strategic decision to engage,

or not engage, in a particular line of questioning on cross-examination.’ ”

State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-Ohio-2334, ¶ 22,

quoting In re Brooks, 10th Dist. Franklin No. 04AP164, 2004-Ohio-3887,

¶ 40; see also State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-Ohio-5060,

¶ 23. In this case, the State of Ohio called sixteen witnesses. The witnesses

were presented at trial as follows:

1. Brian Carver, A.C.’s father;

2. Andrea Crace, a staff nurse at Adena Health System and

part-time coordinator of SANE nurses; Scioto App. No. 19C3866 27

3. Ashley King, a registered nurse at Adena Health System and

a trained SANE nurse;

4. A.C.;

5. Dr. Zoran Naumvoski, a medical doctor and administrative

director of the Child Protection Center;

6. Michelle Carver, A.C.’s step-mother;

7. Ashley Muse-Gigley, the SANE nurse, interviewer and

victim’s advocate at the Child Protection Center who

interviewed A.C.;

8. Detective Michael Hamilton, PPD;

9. Detective Steve Brewer, PPD;

10. Valerie Pinson, Records Clerk, PPD;

11. Officer Lee Bower, PPD;

12. Timothy Augsback, a forensic scientist employed by BCI;

13. Dylan Waggy, a computer forensic specialist employed by

BCI;

14. Rachel Gray, a case worker and investigator with Scioto

County Children’s Services;

15. Detective Chuck Crapyou, PPD, who investigated the case;

and, Scioto App. No. 19C3866 28

16. Cynthia Justice, a Licensed Independent Social Worker who

provided therapy to A.C. at Mahajan Therapeutics and at

A.C.’s home.

{¶39} The transcript reveals that Appellant’s trial counsel

cross-examined Brian Carver, Ashley King, Dr. Naumvosi, Michelle Carver,

Ashley Muse-Gigley, Rachel Gray, Detective Crapyou, and Cynthia Justice.

As indicated above, the prosecution pursued a theory of complicity based on

Appellant’s failure to abide by the court order which did not permit Powers

to be in her home when A.C. was present, thus giving Powers access to A.C.

In defense counsel’s cross-examination of Brian Carver, Appellant’s counsel

was able to elicit testimony wherein Carver admitted that there were times

when he left A.C. at Trout’s home for visitation, knowing that Brian Powers

was present in the home. This testimony may have served to lessen the

impact of Appellant’s failure to abide by the court order by demonstrating

A.C.’s father was also lax as to the terms of the court order.

{¶40} On cross-examination, Appellant’s counsel also elicited

testimony wherein Carver admitted that he could not remember certain

information, such as which law enforcement agency showed up at the E.R.

to take a report; the name of A.C.’s therapist; the name of the person who

examined A.C. at Adena E.R.; and where the Child Protection Center was Scioto App. No. 19C3866 29

located. All of this testimony could have cast doubt as to Carver’s parenting

skills and as to the reliability of his testimony as to other material facts.

{¶41} Appellant’s counsel was also able to get Carver to admit that he

and his wife Michelle, not A.C., did much of the explaining to the E.R.

doctor, casting doubt on the allegations of sexual abuse. Appellant’s counsel

was also able to emphasize uncomplimentary facts through Carver’s cross-

examination. Carver testified that A.C.’s mother Hannah, whom Carver

chose to be in a relationship with at one time, was on drugs; that she was

many years younger than Carver; and that Carver and his current wife,

Michelle, together received SSI, disability, and government financial

assistance for A.C. and an older child, Breanne. This cross-examination

appears to have been vigorous at times.

{¶42} Appellant’s counsel also cross-examined Dr. Naumvoski,

focusing on the Child Protection Center records. Counsel was able to elicit

testimony again demonstrating that the history and circumstances of

suspected abuse was obtained from A.C.’s father. Counsel emphasized Dr.

Naumvoski’s note in the records that two weeks after intake at the hospital,

A.C.’s physical examination was normal, possibly attempting to create

reasonable doubt as to the required element of “serious physical harm.” Scioto App. No. 19C3866 30

{¶43} On cross-examination of Michelle Carver, A.C.’s step-mother,

Appellant’s counsel was able to emphasize that A.C.’s mother had obtained

visitation rights and that the Carvers had a contempt motion filed against

them by the mother. Counsel also elicited testimony about the on and off

again nature of the Carvers’ relationship, and the fact they married just one

week after the allegations of sexual abuse surfaced. Counsel’s relentless

questioning also caused Michelle Carver confusion as to when A.C. first

reported “Papaw Brian” as the perpetrator—either at Adena or the SOMC

E.R. The testimony adduced had the potential to damage Michelle Carver’s

credibility.

{¶44} On cross-examination of Ashley Muse-Gigley, the interviewer

and victim’s advocate who interviewed A.C., Appellant’s counsel was able

to elicit many “I don’t know” or “I don’t recall” answers. On cross-

examination of Rachel Gray, the Children’s Services caseworker, counsel

was able to emphasize Gray’s previous testimony on direct that A.C. had

told Gray she was sorry for “fibbing.” This testimony could have damaged

the credibility of A.C.

{¶45} On cross-examination of Detective Crapyou, counsel elicited

testimony that he received “unsolicited” phone calls from Michelle Carver

wherein she misrepresented her name and marital status. The detective also Scioto App. No. 19C3866 31

testified it was through a July 24, 2017 call from Michelle Carver that Brian

Powers’ name first emerged as perpetrator. Counsel also elicited testimony

that Powers was first arrested on an unrelated incident of domestic violence

with Appellant as the victim on July 29, 2017.

{¶46} Appellant’s counsel further elicited testimony from Detective

Crapyou that Appellant had been cooperative with him and she had provided

the Playstation piece of evidence.3 Detective Crapyou agreed with defense

counsel on cross-examination that if it wasn’t for Appellant, “it [the

Playstation] wouldn’t be here today.” All this testimony had the potential of

placing Appellant in a sympathetic light as another victim of Brian Powers.

It also demonstrated at least some degree of cooperation with law

enforcement.

{¶47} Finally, Appellant’s counsel also cross-examined Cynthia

Justice, A.C.’s therapist. During cross-examination, counsel was able to

emphasize the frequency of Justice’s sessions with A.C.; the fact that one of

the Carvers was always present during therapy; and the fact that, not until

the 30th session did A.C. “blurt out” allegations of sexual abuse. Justice

could not testify with accuracy how many sessions she had, and she also

admitted that Michelle Carver was the main source of her information. 3 Again, Powers was charged with illegal use of a minor in nudity-oriented material or performance. The Playstation which Appellant provided to Detective Crapyou was used solely in the case presented against Powers for the illegal use of a minor charge. Scioto App. No. 19C3866 32

Counsel also emphasized a note in the Mahajan Therapeutics records where

A.C. told Justice that Appellant “protects her.” Our review reveals these

individual cross-examinations, including Justice’s, appear to have been

thoughtfully-planned, appropriate, and vigorous where necessary.

{¶48} As to the other witnesses which Appellant’s counsel chose not

to cross-examine, we find this to be a matter of trial strategy and not

indicative of deficient performance. This is especially compelling in light of

the above discussion of the cross-examination of the witnesses defense

counsel did choose to cross-examine, as set forth above. We begin with

A.C., age 6 at the time of trial. In Guysinger, supra, we stated at ¶ 29:

In light of the very sensitive nature of this case, which involves

a child victim of sexual assault, counsel’s decision not to

extensively cross-examine A.G. does not, by itself, constitute

ineffective assistance of trial counsel. See, e.g., State v.

Hughes, 10th Dist. Franklin No. 14AP-360, 2015-Ohio-151,

¶ 60 (trial counsel's failure to cross-examine any of the state's

witnesses, including the child victim, in a case involving rape

and gross sexual imposition, did not constitute ineffective

assistance, reasoning that “[t]rial counsel's decision not to

cross-examine N.P. and F.H., both minors, is a reasonable and Scioto App. No. 19C3866 33

understandable trial tactic given the sensitive nature of this

case”); State v. Diaz, 9th Dist. Lorain No. 04CA008573, 2005-

Ohio-3108, ¶ 20-23 (trial counsel's decision not to cross-

examine child victims in case involving rape and gross sexual

imposition was within the realm of sound trial strategy and did

not constitute ineffective assistance of counsel).

{¶49} In Guysinger, supra, we also discussed various reasons

supporting the tactical decision to conduct a very brief cross-examination of

the child-victim.

Trial counsel could have been wary about a contentious cross-

examination of A.G., who had testified emotionally on direct

examination. A more rigorous cross-examination could evoke

more emotion and greater sympathy by the jury. * * *

Moreover, it is not at all clear that additional questioning of

A.G. would have necessarily resulted in favorable testimony

concerning the details of the offenses and her reason for not

reporting the crimes earlier than she did. A.G. testified on

direct examination that she did not report the crimes because

she was scared. Additional cross-examination on these matters

may have simply bolstered the state's case. See State v. Scioto App. No. 19C3866 34

Freeman, 8th Dist. Cuyahoga No. 92809, 2010-Ohio-3714, ¶ 51

(decision not to cross-examine child victims of rape and gross

sexual imposition about why they failed to come forward with

their allegations sooner did not constitute ineffective assistance

when they explained this on direct examination because “[i]t

would have been foolish for defense counsel to re-elicit this

damning testimony and explanations from the children on

cross-examination”).

{¶50} In this case, A.C. was cross-examined by counsel for

Appellant’s co-defendant, Brian Powers. Powers’ counsel elicited testimony

from A.C. that she had been friends for a while with the female prosecutor;

that she did not remember a year and a half ago back in July when all this

was supposed to happen; that she didn’t remember going into Judge’s

chambers to talk to him. Defense counsel was able to elicit detailed

testimony about “Peter,” the first named perpetrator. A.C. testified that

“Pappy Brian” and Appellant “fought” around her at times and she wished

they wouldn’t fight. She also testified about staying at her father’s house;

how “crowded” it was; and how she “had to sleep naked” there.

{¶51} All of the above testimony challenged A.C.’s credibility. It

also effectively planted the idea within the jurors’ minds that A.C. might Scioto App. No. 19C3866 35

have been “coached” to testify or that she might be testifying in order to

“please” her new prosecutor friend. Additionally, the testimony regarding

all the people at her father’s house allowed both defense counsel to make the

argument that someone other than Powers had the opportunity to have

abused A.C. Trial counsel for Powers engaged in an effective cross-

examination. As in Guysinger, had Appellant’s counsel undertaken

additional cross-examination, it could have “undone” any successes

achieved by Powers’ counsel, and may have bolstered the State’s case or

may have evoked more sympathy for the child victim.

{¶52} We view Appellant’s counsel’s decision not to cross-examine

A.C. as an obvious strategic decision. As to the decisions not to cross-

examine Andrea Crace, Detective Hamilton, Detective Brewer, Valerie

Pinson, Officer Bower, Timothy Augsback, and Dylan Waggy—it also

appears these decisions not to cross-examine may be considered sound trial

strategy.

{¶53} Andrea Crace testified as to the chain of custody of the rape kit

that was used to collect any evidence from A.C. at the SOMC ER. On cross-

examination, counsel for Powers elicited testimony that although the rape kit

was placed into a safe, it was not refrigerated. Detective Hamilton testified

as to the chain of custody of the rape kit, the swabs attached thereto, and the Scioto App. No. 19C3866 36

Portsmouth Police Department’s property routing form. Powers counsel

also elicited testimony that the evidence locker at the police department was

not refrigerated.

{¶54} Detective Brewer also testified regarding chain of custody for

the rape kit as well as the Playstation and the property inventory sheet for

the Playstation. Valerie Pinson, the records clerk, and Officer Bower also

testified as to chain of custody. We do not find Appellant’s counsel’s

performance to be deficient for failing to cross-examine the above witnesses.

Powers’ trial counsel had conducted effective cross-examinations, raising

evidentiary concerns with the DNA storage. Had Appellant’s counsel

chosen to also pursue these topics, he may have annoyed the jurors and the

trial court with needless repetition.

{¶55} Timothy Augsback, the forensic scientist, testified as to the

chain of custody process at BCI. He identified the rape kit, the oral swabs

from Brian Powers, and the DNA analysis report he prepared. Augsback

tested the swabs and determined male DNA was present. On cross-

examination, counsel for co-defendant Powers elicited testimony that delay

in testing DNA “could” be a problem. He also testified that, though

unlikely, it is possible that DNA could be transmitted by touch, such as Scioto App. No. 19C3866 37

falling off a person as they folded another’s clothes. Appellant’s DNA was

never an issue in this case.

{¶56} Dylan Waggy, a computer forensic specialist, also testified as

to custody of evidence logged in at BCI. He analyzed the Playstation’s hard

drive, took photographs, and reviewed the web search history. On cross-

examination, counsel for Powers emphasized that the report was not about

the original hard drive but about a cloned drive, and that the Playstation was

an older model. Waggy admitted it was possible that the websites accessed

were “popup” websites. When Appellant’s counsel was offered the

opportunity to cross-examine Waggy, counsel stated: “I’m not involved in

this.” Given that Appellant was not charged with illegal use of a minor in

nudity-oriented material or performance, we construe Appellant’s counsel’s

decision not to cross-examine Dylan Waggy as entirely reasonable.

{¶57} Based on the foregoing comprehensive review of witness

testimony, we conclude that trial counsel’s failure to cross-examine 8 of 16

witnesses appears to have been trial strategy. We find Appellant’s claim of

ineffective assistance on this basis is pure speculation. Speculation is

insufficient to establish either the deficient performance or prejudice

requirements of an ineffective assistance claim. See Guysinger, supra, at

¶ 31, citing State v. Short, 129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E. Scioto App. No. 19C3866 38

2d 1121, at ¶ 119. For the foregoing reasons, we find no merit to the second

and third assignments of error. Accordingly, those assignments of error are

hereby overruled.

ASSIGNMENT OF ERROR FOUR - WEIGHT OF THE EVIDENCE

{¶58} A claim of insufficient evidence invokes a due process concern

and raises the question whether the evidence is legally sufficient to support

the verdict as a matter of law. State v. Wickersham, 4th Dist. Meigs No.

13CA10, 2015-Ohio-2756, at ¶ 22, citing, State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the

evidence, our inquiry focuses primarily upon the adequacy of the evidence;

that is, whether the evidence, if believed, reasonably could support a finding

of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of

review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259,

273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess

“whether the state's evidence is to be believed, but whether, if believed, the Scioto App. No. 19C3866 39

evidence against a defendant would support a conviction.” Thompkins, 78

Ohio St.3d at 390 (Cook, J., concurring).

{¶59} Thus, when reviewing a sufficiency-of-the-evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. Wickersham, supra, at ¶ 23; State v. Hill, 75 Ohio St.3d 195,

205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620

N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a

sufficiency-of-the-evidence claim unless reasonable minds could not reach

the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146,

162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739

N.E.2d 749 (2001).

{¶60} “ ‘Although a court of appeals may determine that a judgment

of a trial court is sustained by sufficient evidence, that court may

nevertheless conclude that the judgment is against the weight of the

evidence.’ ” Wickersham, supra, at ¶ 24, quoting, Thompkins, 78 Ohio St.3d

at 387. “ ‘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. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing

the evidence in their minds, they shall find the greater amount of credible Scioto App. No. 19C3866 40

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief.” ’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's

Law Dictionary 1594 (6th ed.1990).

{¶61} When an appellate court considers a claim that a conviction is

against the manifest weight of the evidence, the court must dutifully

examine the entire record, weigh the evidence, and consider the credibility

of witnesses. The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve. Wickersham,

supra, at ¶ 25; State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001);

State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31.

“ ‘Because the trier of fact sees and hears the witnesses and is particularly

competent to decide “whether, and to what extent, to credit the testimony of

particular witnesses,” we must afford substantial deference to its

determinations of credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5,

2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist.

Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd

Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley court

explained: Scioto App. No. 19C3866 41

“ ‘[I]n determining whether the judgment below is manifestly

against the weight of the evidence, every reasonable intendment

must be made in favor of the judgment and the finding of facts.

If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is

consistent with the verdict and judgment, most favorable to

sustaining the verdict and judgment.’ ” Eastley at ¶ 21, quoting

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,

Appellate Review, Section 60, at 191-192 (1978).

Thus, an appellate court will leave the issues of weight and credibility

of the evidence to the fact finder, as long as a rational basis exists in

the record for its decision. State v.Picklesimer, 4th Dist. Pickaway

No. 11CA9, 2012–Ohio–1282,¶ 24; accord State v. Howard, 4th Dist.

Ross No. 07CA2948, 2007–Ohio–6331, ¶ 6 (“We will not intercede as

long as the trier of fact has some factual and rational basis for its

determination of credibility and weight.”).

{¶62} Once the reviewing court finishes its examination, the court

may reverse the judgment of conviction only if it appears that the fact-finder, Scioto App. No. 19C3866 42

when resolving the conflicts in evidence, “ ‘ “clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered .” ’ ” Wickersham, supra, ¶ 26, quoting, Thompkins,

78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). A reviewing court should find a conviction

against the manifest weight of the evidence only in the “ ‘exceptional case in

which the evidence weighs heavily against the conviction.’ ” Id., quoting

Martin, at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995

(2000).

{¶63} When an appellate court concludes that the weight of the

evidence supports a defendant's conviction, this conclusion necessarily

includes a finding that sufficient evidence supports the conviction.

Wickersham, supra, at ¶ 27; State v. Pollitt, 4th Dist. Scioto No. 08CA3263,

2010-Ohio-2556, ¶ 15. “ ‘Thus, a determination that [a] conviction is

supported by the weight of the evidence will also be dispositive of the issue

of sufficiency.’ ” State v. Lombardi, 9th Dist. Summit No. 22435, 2005-

Ohio-4942, ¶ 9, quoting State v. Roberts, 9th Dist. Lorain No. 96CA006462

(Sept. 17, 1997). In the case sub judice, therefore, we first consider

Appellant's argument that her convictions are against the manifest weight of

the evidence. Scioto App. No. 19C3866 43

{¶64} Appellant was convicted on three counts of rape and one count of

endangering children upon a theory of complicity. Appellant asserts that the

evidence adduced at trial was legally insufficient and also the verdicts were

against the manifest weight of the evidence. The complicity statute, R.C.

2923.03(A)(2), states in pertinent part: “No person, acting with the kind of

culpability required for the commission of an offense, shall * * * [a]id or

abet another in committing the offense[.]” Under R.C. 2923.03(F), “ ‘[a]

charge of complicity may be stated in terms of [that] section, or in terms of

the principal offense.’ ” State v. Wingfield, 8th Dist. Cuyahoga No. 107196,

2019-Ohio-1644, at ¶ 65, quoting State v. McKelton, 148 Ohio St.3d 261,

2016-Ohio-5735, 70 N.E.3d 508, ¶ 244. In Ohio, when an individual acts to

aid or abet a principal in the commission of an offense, the individual and

principal are equally guilty and the individual is prosecuted and punished as

if he were a principal offender. Wingfield, supra. See R.C. 2923.03(F).

Thus, to sustain Appellant's complicity to rape and endangering children, the

evidence must show that Appellant knowingly aided or abetted Brian

Powers in committing rape and endangering children.

{¶65} Appellant contends that A.C.’s testimony is “unreliable at

best.” Appellant also points to the fact that she actually provided Scioto App. No. 19C3866 44

incriminating evidence against Powers to the police. While Appellant

concedes she failed to abide perfectly by the juvenile court’s order, she

argues that the evidence does not support the conclusion that she aided

Powers. For the reasons which follow, we disagree with Appellant.

{¶66} “ ‘To support a conviction for complicity by aiding and

abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the

defendant supported, assisted, encouraged, cooperated with, advised, or

incited the principal in the commission of the crime, and that the defendant

shared the criminal intent of the principal. Such intent may be inferred from

the circumstances surrounding the crime.’ ” State v. Pickett, 4th Dist.

Athens No. 15CA13, 2016-Ohio-4593, at ¶ 32, quoting, State v. Johnson, 93

Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus; accord In re T.K., 109

Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶ 13. “ ‘Participation in

criminal intent may be inferred from presence, companionship and conduct

before and after the offense is committed.’ ” Johnson, 93 Ohio St.3d at 245,

754 N.E.2d 796, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d

884 (4th Dist.1971). However, “ ‘the mere presence of an accused at the

scene of a crime is not sufficient to prove, in and of itself, that the accused

was an aider and abettor.’ ” Id. at 243, quoting State v. Widner, 69 Ohio

St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to protect innocent Scioto App. No. 19C3866 45

bystanders who have no connection to the crime other than simply being

present at the time of its commission.” Id. See also State v. Louis, 2016-

Ohio-7596, 73 N.E.3d 917 (4th Dist.), at ¶ 54.

{¶67} Count 1, rape, alleged:

On or about July 20, 2017,at Scioto County, Ohio, * * * Sheri

K. Trout (B), unlawfully, did engage in sexual conduct with

A.C. 10/29/2012, who was not the spouse of the offender,

whose age at the time of the said sexual conduct was less than

thirteen years of age, to wit: dob: 10/29/12, whether or not the

offender knew the age of A.C. 10/29/2012. Furthermore, the

victim was less than ten years of age. In violation of Ohio

Revised Code 2907.02(A)(1)(b), 2907.02(B), and against the

peace and dignity of the State of Ohio.

{¶68} Count 3, rape, contained the exact allegations as Count 1,

adding that “the offender did cause serious physical harm to the victim.”

Count 4, rape, contained the exact allegations as Counts 1 and 3, adding that

“[T]he offender purposely compelled the victim to submit by force or threat

of force.”

{¶69} Count 7, endangering children, alleged: Scioto App. No. 19C3866 46

On or about July 20, 2017, at Scioto County, Ohio * * *, Sheri

K. Trout (B), unlawfully, was a parent, guardian, custodian,

person having custody or control, or person in loco parentis of a

child under eighteen years of age, who did create a substantial

risk to the health or safety of A.C. 10/29/2012, by violating a

duty of care, protection, or support. * * * [T]he violation

resulted in serious physical harm to A.C. 10/29/2012. In

violation of Ohio Revised Code 2919.22(A), 2919.22(E)(2)(c),

and against the peace and dignity of the State of Ohio.

{¶70} As indicated, the State of Ohio pursued a theory of complicity

against Appellant. The trial court instructed the jury as to the legal

definition of complicity as follows:

The Defendant, Sheri Trout, is charged with complicity in the

commission of the offense of Rape and Kidnapping * * *.

Before you can find the Defendant, Sheri Trout guilty, you

must find beyond a reasonable doubt, that on or about the 20th

day of July, 2017, and in Scioto County, the Defendant aided or

abetted another in committing the offense of Rape and

Kidnapping. A person acts knowing, regardless of purpose,

when the person is aware that the person’s conduct will Scioto App. No. 19C3866 47

probably cause a certain result or be of a certain nature. A

person has knowledge of circumstances when the person is

aware that such circumstances probably exist. Because you

cannot look into the mind of another, knowledge is determined

from all the facts and circumstances in evidence. You will

determine from these facts and circumstances whether there

existed at the time in the - - in the mind of the Defendant, Sheri

Trout, an awareness of the probability that Defendant Brian

Powers committed the crimes of Rape and Kidnapping. Before

you can find the Defendant guilty of complicity by aiding or

abetting * * *, you must find beyond a reasonable doubt that the

Defendant supported, assisted, encouraged, cooperated with,

advised, or incited the principal offender in the commission of

the offense and that the Defendant shared the criminal intent of

the principal offender. Such intent may be inferred from the

circumstances surrounding the offense including but not limited

to presence, companionship, and conduct before and after the

offense was committed. The mere presence of the Defendant at

the scene of the offense is not sufficient to prove, in and of

itself, that the Defendant was an aider and abettor. The Scioto App. No. 19C3866 48

Defendant cannot be found guilty of complicity unless the

offense was actually committed.

{¶71} State v. Louis, supra, involved a particularly egregious example

of complicity to criminal acts, also involving a grandmother who assisted a

boyfriend in sexual abuse of her grandchildren and was convicted. In Louis,

the state presented evidence that Louis knew Sanchez was repeatedly raping

her granddaughters, Jm.L. and Jn.L. because both girls testified that they

repeatedly told Louis about Sanchez’s crimes. Jm.L. testified that she told

Louis in November 2013 and “we said it a lot and my grandma never did

nothing.” Id. at ¶ 55. Louis provided Sanchez with a place to carry out the

rapes, tied and chained Sanchez's victims, and provided Sanchez with

unlimited continuous access to the victims. Id. She was present in the home

while the rapes were occurring, only yards away in a room with no doors.

Id.

{¶72} In Louis, we found that in weighing the evidence and all

reasonable inferences and considering the credibility of witnesses, the jury

did not clearly lose its way when it found Louis had supported and assisted

Sanchez in the rapes. Nor did it lose its way when it found Louis had shared

Sanchez's criminal intent by inference from her presence, companionship Scioto App. No. 19C3866 49

and conduct before, during and after the rapes. Louis was “far from being

just an innocent bystander in the wrong place at the wrong time.” Id. at ¶ 56.

{¶73} In Appellant’s case, the evidence used to convict her of

complicity to rape and child endangering was not as direct. However, it is

well established that the elements of an offense may be proven by direct

evidence, circumstantial evidence, or both. State v. Wingfield, 8th Dist.

Cuyahoga No. 107196, 2019-Ohio-1644, at ¶ 51. See State v. Durr, 58 Ohio

St.3d 86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness

testifies about a matter within the witness's personal knowledge such that the

trier of fact is not required to draw an inference from the evidence to the

proposition that it is offered to establish.” State v. Cassano, 8th Dist.

Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Circumstantial evidence, on

the other hand, is evidence that requires “the drawing of inferences that are

reasonably permitted by the evidence.” Id. See also State v. Hartman, 8th

Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37 (“[c]ircumstantial

evidence is the proof of facts by direct evidence from which the trier of fact

may infer or derive by reasoning other facts in accordance with the common

experience of mankind”).

{¶74} Circumstantial and direct evidence are of equal evidentiary

value. Wingfield, supra, at ¶ 52; State v. Santiago, 8th Dist. Cuyahoga No. Scioto App. No. 19C3866 50

95333, 2011-Ohio-1691, ¶ 12. “Although there are obvious differences

between direct and circumstantial evidence, those differences are irrelevant

to the probative value of the evidence.” Cassano at ¶ 13, citing State v.

Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). In some cases,

circumstantial evidence may be “ ‘more certain, satisfying and persuasive

than direct evidence.’ ” State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d

293 (1990), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330,

81 S.Ct. 6, 5 L.Ed.2d 20 (1960). See also, State v. Dunn, 4th Dist. Jackson

No. 15CA1, 2017-Ohio-518, at ¶ 67; State v. Grube, 2013-Ohio-692, 987

N.E.2d 287 (4th Dist.), ¶ 30.

{¶75} In this case, much of the evidence used to convict both Powers

and Appellant was circumstantial, hinging on A.C.’s credibility. However,

“ ‘[i]t is well settled that a rape conviction may rest solely on the victim's

testimony, if believed, and that “[t]here is no requirement that a rape victim's

testimony be corroborated as a condition precedent to conviction.” ’ ” State

v. Schroeder, 4th Dist. Adams No. 18CA1077, 2019-Ohio-4136, at ¶ 84;

State v. Horsley, 2018-Ohio-1591, 110 N.E.3d 624 (4th Dist.) at ¶ 74; State

v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, 2015 WL

2452024, at ¶ 62; quoting State v. Patterson, 8th Dist. Cuyahoga No. Scioto App. No. 19C3866 51

100086, 2014-Ohio-1621, 2014 WL 1513893, at ¶ 40; quoting State v.

Lewis, 70 Ohio App.3d 624, 638, 591 N.E.2d 854 (4th Dist. 1990).

{¶76} We have set forth the pertinent facts above. The jury

apparently found A.C. and the other State’s witnesses to be credible and

compelling. Powers was convicted as the principal offender. In closing, the

prosecutor argued Appellant’s complicity by the fact that Appellant failed to

comply with the juvenile court’s order, which gave Powers access to A.C.

The prosecutor also emphasized the smallness of the house in which

Appellant lived. Furthermore, the jury heard Ashley Muse-Gigley’s

testimony that “Sheri knew and they fought.”

{¶77} A.C. testified on direct that when she met with the prosecutor,

they talked “about what Brian Powers did” at Appellant’s house, in A.C.’s

own room behind a chair. A.C. testified she “screamed for Mammaw

Sheri,” and Appellant came in and said “don’t touch my granddaughter

again.” Cindy Justice’s testimony corroborated A.C.’s as to Appellant’s

knowledge. This evidence demonstrated that Appellant was aware of the

sexual abuse and did nothing to stop it, save a verbal warning. A.C. also

testified her mother, Hannah Giles, told her to say “Mammaw Sheri didn’t

come in” because “she wants this court over so I can go over to her house.” Scioto App. No. 19C3866 52

{¶78} A jury is in the best position to view the witnesses and to

observe witness demeanor, gestures and voice inflections, and to use those

observations to weigh credibility. Dunn, supra, at ¶ 75. See Myers v.

Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d 742 (1993); Seasons Coal Co.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). While this

case is a far cry from the factual scenario which convicted Louis for

complicity, the jury apparently found the facts warranted Appellant’s

convictions for three counts of rape on a theory of complicity. Appellate

courts should not generally second-guess juries on matters of weight and

credibility. See State v. Vance, 4th Dist. Athens No. 03CA27, 2004-Ohio-

5370, at ¶ 10. We decline to do so. The jury was in the best position to

view A.C. and the other witnesses and to determine their credibility. Based

on the foregoing, we find the jury did not lose its way and Appellant’s

convictions for rape are not against the manifest weight of the evidence. In

addition, based on the facts set forth at length above, Appellant’s conviction

for endangering children is also not against the manifest weight of the

evidence.

{¶79} Having found Appellant’s convictions for rape and child

endangering are not against the manifest weight of the evidence, we

necessarily find her convictions are supported by sufficient evidence. As Scioto App. No. 19C3866 53

such, we find no merit to the fourth assignment of error. As such, it is

CONCLUSION

{¶80} We have found no merit to any of Appellant’s four assignments

of error. Accordingly, all assignments of error are overruled. The judgment

of the trial court is affirmed.

JUDGMENT AFFIRMED. Scioto App. No. 19C3866 54

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J. and Hess, J. concur in Judgment and Opinion.

For the Court, __________________________________ Jason P. Smith Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.