State v. Skidmore

[Cite as State v. Skidmore, 2010-Ohio-2846.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 08 MA 165
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MICHAEL SKIDMORE )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2007-CR-1506

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Lynn Maro
7081 West Boulevard
Youngstown, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 18, 2010

WAITE, J.
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{¶1} Appellant, Michael Skidmore, appeals his jury convictions in the

Mahoning County Court of Common Pleas on one count of rape, in violation of R.C.

2907.02(A)(1)(b)(B) (victim under the age of thirteen/threat of force), a felony of the

first degree, three counts of rape, in violation of R.C. 2907.02(A)(2)(B) (force or threat

of force), felonies of the first degree, one count of gross sexual imposition, in violation

of R.C. 2907.05(A)(4)(B) (victim under the age of thirteen), a felony of the third

degree, and three counts of gross sexual imposition, in violation of R.C.

2907.05(A)(1)(B), felonies of the fourth degree (force or threat of force). Appellant

was acquitted of two other counts of rape, and two other counts of gross sexual

imposition.

{¶2} Appellant’s victim in this case was his step-daughter, H.R. Appellant

was charged with one count of rape and one count of gross sexual imposition for

each of the years between H.R.’s tenth and sixteenth birthdays. Appellant was

acquitted of the rape and gross sexual imposition charges allegedly incurred when

H.R. was ten and eleven years of age.

{¶3} H.R. testified at trial that Appellant moved into her home when she was

seven years old, but she had known him from the age of two. (Tr., pp. 242-243.)

H.R. testified that Appellant began comparing her body to her mother’s body when

she was ten years old, but that she did not believe that he ever touched her

inappropriately when she was ten. (Tr., p. 246.)

{¶4} According to H.R.’s testimony, Appellant began touching her breasts

and buttocks “over top [of her] clothes” by the time she was in the fifth or sixth grade.
 -3-

(Tr., p. 246.) He also began walking into the bathroom while she was taking a

shower, as well as touching her under her clothes. She testified that he began

touching her under her clothes when she was “around” ten or eleven. (Tr., p. 247.)

At twelve, H.R. performed oral sex on Appellant, which occurred more than 50 times

by her sixteenth birthday. (Tr., pp. 247, 249.) Appellant also performed oral sex on

H.R. (Tr., p. 249.) At thirteen, he began penetrating her vaginally and anally with his

fingers. (Tr., pp. 248-249.)

{¶5} H.R. testified that Appellant would coerce her into performing sex acts

by telling her that she “owe[d]” him. (Tr., p. 251.) She interpreted the statement,

“you owe me,” which he said more than once a week, to mean that she would have to

perform a sex act in exchange for “getting something materialistic from the store or

going somewhere.” (Tr., p. 251.) H.R. further testified that her mother typically

handed down the punishment for bad behavior, and that Appellant would get the

punishments lifted in exchange for sex acts. (Tr., p. 255.)

{¶6} The abuse continued with regularity until H.R. began dating Elmer

Gonzalez when she was fifteen. (Tr., p. 250.) She testified that the abuse “faded

out” because she was never home. According to her testimony, H.R. performed sex

acts with Appellant monthly after she started dating Gonzalez, and that she

performed approximately two sex acts with Appellant during the summer following

her freshman year of high school. (Tr., p. 252.)

{¶7} H.R. realized that she was the victim of sexual abuse when she

watched an episode of “The Oprah Winfrey Show” that focused on child molestation.
 -4-

She testified that guests on the show described sex acts in which she had engaged

with Appellant. (Tr., p. 254.) H.R. conceded that she had a strained relationship with

her mother, and felt much closer to Appellant, and that she was afraid to tell her

mother about the abuse. (Tr., pp. 254-255.)

{¶8} H.R. told Gonzalez about the molestation in December of 2006, and he

encouraged H.R. to tell her mother. (Tr., p. 256.) Although H.R. was reluctant to tell

her mother, she finally divulged the information in April of 2007. H.R. and her mother

were watching a prime time news program about child molestation, and H.R.’s

mother asked if H.R. would confide in her if H.R. was being abused. H.R. dissolved

into tears and disclosed the abuse. (Tr., p. 257.)

{¶9} In addition to her testimony regarding the sex acts, H.R. testified that

Appellant took her shopping when she was thirteen and bought her a bikini and “G-

string underwear.” (Tr., pp. 259-260.) On one occasion, when H.R. was thirteen or

fourteen, Appellant plied her with alcohol, and H.R. woke up the following day naked

in her bed with no recollection of the events of the previous evening. Appellant was

naked beside her. (Tr., pp. 262-263.) H.R. identified a scar near Appellant’s groin in

order to prove that she had seen him naked.

{¶10} H.R. characterized Appellant as a jealous man who attempted to

prevent her from seeing Gonzalez. (Tr., p. 267.) After her allegations were revealed

to Appellant, she testified that he told her that he loved her, and that he would leave

her mother and then they could run away together if she would recant her story. (Tr.,

p. 270.) However, she also testified that Appellant encouraged her to have sex with
 -5-

Gonzalez, and he even suggested certain sexual positions that they should try. (Tr.,

p. 273.)

{¶11} Appellant’s trial counsel argued that H.R.’s accusations were false, and

characterized the accusations as retribution for a series of punishments that she had

received in the months preceding the accusations. Her cellular telephone was taken

away at some point in January or February of 2007, and it was never returned. (Tr.,

pp. 310-311.) She was also grounded for skipping school with Gonzalez, who was

attending Youngstown State University during her sophomore year of high school.

(Tr., p. 291.)

{¶12} H.R. conceded on cross-examination that she was punished for

misbehavior, and that she was not permitted to see Gonzalez during the months

preceding the accusations. (Tr., p. 292.) She was also punished for meeting

Gonzalez, without permission, when she took her younger brother to the park. (Tr.,

pp. 291, 317.) Appellant’s trial counsel argued that once she had falsely accused

Appellant, H.R., an honor student, was forced to perpetuate the lie because she

risked humiliation and scorn if she revealed the truth.

{¶13} On cross-examination, Appellant’s trial counsel pointed out that H.R.,

who broke down a few times during her direct testimony, was unemotional during the

videotaped statement she provided to the detective assigned to her case. (Tr., p.

283.) Appellant’s trial counsel also underscored the fact that H.R. did not include her

testimony regarding the night Appellant gave her alcohol in her statement to police,

nor did she tell them that he purchased inappropriate clothing for her. (Tr., p. 301.)
 -6-

{¶14} H.R. conceded on cross-examination that she could not prove that the

bathing suit and underwear, displayed to the jury, were purchased by Appellant. (Tr.,

p. 287.) She also conceded that Appellant had surgery on his groin area, and that it

was reasonable to assume that the surgery had left a scar, but argued that she was

able to identify the precise location of the scar. (Tr., p. 298.)

{¶15} Because H.R. admitted that she was sexually active with Gonzalez

when she divulged the sexual abuse, no medical tests were conducted to corroborate

her story. In addition to H.R., the state elicited testimony from three other witnesses:

Gonzalez, Renee Mayberry, a case worker in the abuse unit of Mahoning County

Children Services Board (“MCCSB”), and Dr. Paul McPherson, a physician and a

specialist in the field of child abuse.

{¶16} In his first assignment of error, Appellant contends that the trial court

erred in admitting the testimony of Gonzalez and McPherson, because their

testimony served no other purpose than to bolster H.R.’s credibility. Gonzalez, the

first person that H.R. told about the abuse, was asked by the state if he had ever

known H.R. to lie and Gonzalez responded, “[n]o.” (Trial Tr., p. 339.) When he was

asked whether he thought that H.R. had manufactured the story, Gonzalez

answered, “[a]bsolutely not.” (Tr., p. 338.) Gonzalez testified that he believed H.R.’s

story based upon her behavior when she accused Appellant of molestation.

{¶17} McPherson testified that evidence of penetration is not necessarily

present in all victims of sexual abuse, and that victims react differently when telling

their stories. Appellant argues that McPherson’s testimony was inadmissible in its
 -7-

entirety because McPherson never interviewed nor examined H.R., and because

McPherson’s testimony was within the knowledge or experience possessed by lay

persons.

{¶18} In his third assignment of error, Appellant asserts that the gross sexual

imposition charges in counts seven through nine failed to state an offense because in

each of those counts an essential element of the crime was omitted from the

indictment. Because Appellant was acquitted of the crimes alleged in counts seven

and eight, the third assignment of error applies only to count nine.

{¶19} In his second and fourth assignments of error, Appellant argues that he

was denied a fair trial because of prosecutorial misconduct. Appellant contends that

the state referred to him as a “child molester” in both its opening and closing

arguments, and shifted the burden of proof in its closing argument, when the state

speculated that H.R.’s story must have been consistently told because his trial

counsel would have raised any inconsistent statements during his cross-examination.

In addition, Appellant contends that he was denied effective assistance of counsel

because his trial counsel failed to object to the prosecutor’s comments.

{¶20} In his fifth assignment of error, Appellant argues that his convictions are

against the manifest weight of the evidence. For the following reasons, Appellant’s

assignments of error are overruled and his convictions are affirmed.

Assignment of Error No. 1:
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{¶21} “It was An Abuse of Discretion for The Trial Court to Permit Testimony

Offered Solely to bolster the credibility of the complaining witness thereby denying

Appellant’s Right to Due Process Guaranteed by U.S. CONST., art. I, §16.”

{¶22} Appellant contends that McPherson’s testimony in its entirety and

Gonzalez’s testimony to the extent that he stated that H.R. did not lie should have

been excluded. “The admission or exclusion of relevant evidence rests within the

sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 510

N.E.2d 343, paragraph two of the syllabus. We reverse a trial court’s ruling regarding

the admission or exclusion of evidence only upon a showing that the trial court

abused its discretion. An abuse of discretion “connotes more than an error of law or

of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.

{¶23} Further, we must disregard any error which does not affect an

appellant’s substantial rights since any such error is harmless. Crim.R. 52(A). In

determining whether an error in the admission of evidence was harmless, a reviewing

court must find that there is no reasonable possibility that the error contributed to the

defendant’s conviction. State v. Sorrels (1991), 71 Ohio App.3d 162, 165, 593

N.E.2d 313.

{¶24} Lay witness opinion testimony is “limited to those opinions or inferences

which are (1) rationally based on the perception of the witness and (2) helpful to a

clear understanding of the witness’ testimony or the determination of a fact in issue.”
 -9-

Evid.R. 701. Opinion testimony is not excludable “solely because it embraces an

ultimate issue to be decided by the trier of fact.” Evid.R. 704.

{¶25} “The credibility of a witness may be attacked or supported by evidence

in the form of opinion or reputation, but * * * the evidence may refer only to character

for truthfulness or untruthfulness * * *.” Evid.R. 608(A). The Ohio Supreme Court

has held that if the defendant questions the veracity of the state’s witness, the state

may present opinion testimony concerning the original witness’ reputation for

veracity. State v. Schechter (1975), 44 Ohio St.2d 188, 339 N.E.2d 654.

{¶26} Appellate courts have historically declined to reverse convictions based

upon improper bolstering testimony where the victim testifies and is subject to cross-

examination, the state introduces substantial medical evidence of sexual abuse, and

the testimony in question is cumulative to other evidence. State v. Kincaid (October

18, 1995), 9th Dist. Nos. 94CA005942 and 92CA005945, at 6; State v. Palmer (Feb.

8, 1995), 9th Dist. No. 2323-M, at 19.

{¶27} More recently, appellate courts have limited that part of the holdings in

Kincaid and Palmer that require additional medical evidence to cases involving small

children. In other words, while medical evidence is required with victims of a tender

age, bolstering testimony has been considered harmless error where the victims are

in their teens and subject to cross-examination. State v. Thompson, 4th Dist. No.

06CA28, 2007-Ohio-5419; State v. Hupp, 3d Dist. No. 1-08-21, 2009-Ohio-1912, ¶20;

State v. Morrison, 9th Dist. No. 21687, 2004-Ohio-2669, State v. Amankwah, 8th

Dist. No. 89937, 2008-Ohio-2191, ¶44.
 -10-

{¶28} In Amankwah, the victim’s mother testified that she believed her

daughter’s testimony. The Eighth District Court of Appeals recognized that, when the

victim testifies, “[t]he jury [is] able to hear [the victim’s] answers, witness her

demeanor, and judge her credibility independent of her mother’s testimony.” Id. at

¶44. The same is true in the case sub judice.

{¶29} A review of the record before us reveals that it was obvious from the

testimony of Gonzalez that he believed H.R. was telling the truth. H.R. and Gonzalez

both testified that H.R. told Gonzalez about the molestation and that Gonzalez then

encouraged H.R. to tell her mother. There is no question based upon the foregoing

testimony that Gonzalez believed H.R.’s story. Therefore, to the extent that it may

have been error to ask Gonzalez about H.R.’s truthfulness, the trial court committed

harmless error in admitting Gonzalez’s testimony, at best.

{¶30} Turning to McPherson’s testimony, Evid.R. 702 provides in relevant part

that “[a] witness may testify as an expert if all of the following apply:

{¶31} “(A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a misconception

common among lay persons;

{¶32} “(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the testimony;

{¶33} “(C) The witness’ testimony is based on reliable scientific, technical, or

other specialized information.”
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{¶34} Evid.R. 703 reads, in its entirety, “The facts or data in the particular

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

the expert or admitted in evidence at the hearing.”

{¶35} In State v. Boston (1989), 46 Ohio St.3d 108, syllabus, the Supreme

Court of Ohio held that, “[a]n expert may not testify as to the expert’s opinion of the

veracity of the statements of a child declarant.” In Boston, the child victim did not

testify. In State v. Stowers (1998), 81 Ohio St.3d 260, 690 N.E.2d 881, the Court

clarified its earlier holding stating that Boston “does not proscribe testimony which is

additional support for the truth of the facts testified to by the child, or which assists

the fact finder in assessing the child’s veracity.” (Emphasis in original.) Id. at 263.

The expert testimony in Stowers included an explanation of behaviors often seen in

children that have been sexually assaulted including recantation of accusations and

delayed disclosure. Id.

{¶36} Several Ohio appellate courts have concluded that Boston does not

apply when the child victim actually testifies and is subject to cross-examination. See

Hupp, supra at ¶20 (quoting State v. Thompson, 5th Dist. No. 06CA28, 2007-Ohio-

5419); Amankwah, supra; Smith, supra.

{¶37} McPherson, a pediatrician and specialist in the area of child abuse,

testified that it is common for there to be no medical evidence of penetration in a

victim of sexual abuse. (Tr., p. 374.) He further testified that victims do not

necessarily report the abuse immediately after it occurs for a number of reasons,

including threats by the abuser, embarrassment, and a lack of awareness that they
 -12-

are victims of abuse. (Tr., p. 376.) According to McPherson, there is no typical

demeanor when a victim of abuse recounts his or her story and that not all victims

become emotional. (Tr., pp. 378-380.) McPherson conceded on cross-examination

that his only knowledge of the facts of the case was based upon his discussions with

the prosecutor. (Tr., p. 382.)

{¶38} We recently rejected virtually identical arguments to those asserted by

Appellant regarding the nature and effect of McPherson’s testimony in State v.

Kaufmann, 7th Dist. No. 08-MA-57, 2010-Ohio-1536. In that case, McPherson

provided the exact same testimony about delayed disclosure by victims and the lack

of physical evidence of sexual abuse in some cases. As in the case sub judice,

McPherson did not examine the victims in Kaufmann, nor did he directly comment on

the credibility of their testimony at trial. Id. at ¶123.

{¶39} We recognized that post-Stowers caselaw permits expert testimony that

bolsters victim testimony. Id. at ¶124. We likewise acknowledged that McPherson’s

testimony, which Kaufmann’s counsel characterized as “so general that it did not

make the existence of any material fact in the case more or less probable,” was

relevant, as it explained “common patterns of disclosure of child sex abuse victims.”

Id. at ¶126. In response to Kaufmann’s argument that McPherson’s testimony

offered no specialized knowledge outside the realm of the common knowledge of the

jury, we relied on Ohio caselaw establishing that “the average fact-finder may require

assistance in understanding the ‘behavioral characteristics of minor victims of sexual

abuse.’ ” Id. at ¶127-128 (internal citations omitted).
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{¶40} Finally, we rejected Kaufmann’s assertion that McPherson’s testimony

was inadmissible because he had no firsthand knowledge about the victims. We

stated that, “Evid.R. 703, as it applies to this case, does require that McPherson

testify only about facts that he has perceived. However, it does not require that he

testify to facts specific to the case.” Id. at ¶130.

{¶41} Based on our recent Kaufmann decision on this issue, Appellant’s first

assignment of error is overruled. Because Appellant relies on the prosecutorial

misconduct he alleges in his second assignment of error as the basis for his

ineffective assistance of counsel claim in his fourth assignment of error, we will

discuss these assignments together.

Assignment of Error No. 2:

{¶42} “Appellant Was Denied Due Process of Law and a Fair Trial by Reason

of Improper Prosecutorial Argument. U.S. CONST., amend. XIV, OHIO CONST., art. I,

§10.”

Assignment of Error No. 4:

{¶43} “Appellant’s Convictions and Sentences Are in Violation of the State

and Federal Constitutions Because Appellant Was Denied the Effective Assistance of

Counsel When Counsel Failed to object to prejudicial arguments. U.S. CONST.,

amend. VI and XIV; Ohio CONST., art. I, §§1, 10 and 16.”

{¶44} The standard of review for prosecutorial misconduct is whether the

actions by the prosecution were improper, and, if so, whether they prejudiced

Appellant’s substantial rights. State v. Treesh (2001), 90 Ohio St.3d 460, 480, 739
 -14-

N.E.2d 749. Prosecutorial misconduct will not provide a basis for reversal unless the

misconduct can be said to have deprived Appellant of a fair trial based on the entire

record. State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293.

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

must show not only that counsel’s performance was deficient, but must also show the

resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674. “Deficient performance” means performance falling below an

objective standard of reasonable representation. “Prejudice,” in this context, means

a reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different. Id. at 687-688, 694, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674.

{¶46} Appellant contends that the state committed prejudicial misconduct by

stating during closing argument that H.R. consistently told the same story about the

abuse, despite the fact that the state did not call her mother, a representative of

MCCSB or the detective assigned to her case to testify. He also claims it was

misconduct for the prosecutor to point out that he had the ability to subpoena

witnesses, and to refer to him as a “child molester.” He further contends that his trial

counsel’s failure to object to the foregoing statements constitutes ineffective

assistance.

{¶47} The prosecutor made the following statements in closing argument:

{¶48} “She told [Gonzalez]. She told her mother. She told CSB two times.

She told the police two times. She told the prosecutor’s office before she came in
 -15-

here. She’s always been consistent, always been consistent. Because if she wasn’t

consistent, [Appellant’s trial counsel] would have been all over that, and he wasn’t.”

(Tr., p. 412.)

{¶49} Although Appellant’s trial counsel did not object to the state’s argument,

he stated in his closing that, “[y]ou didn’t hear from police officers. You didn’t hear

from the mother who supposedly was the catalyst involved in this statement. You

didn’t hear from her. We have no burden. We don’t have to call anybody or do

anything because we don’t want to be here.” (Tr., p. 438.)

{¶50} The state then argued:

{¶51} “[H.R.] was consistent throughout every time she talked. She

mentioned the same type of acts the defendant would perform, make her perform on

him. She said she was afraid she wouldn’t be believed because she had a mother

she didn’t get along with, a grandmother who treated her differently, and no one she

could go to until she had [Gonzalez], someone she trusted. * * * Remember

[Appellant’s trial counsel] kept asking her, did you tell this person this; did you tell that

person that? Well, didn’t you know this, and -- he has the right to subpoena

witnesses.” (Tr., pp. 447-448.)

{¶52} Appellant’s trial counsel objected to the state’s comment and requested

a curative instruction underscoring the fact that Appellant did not have the burden of

proof at trial. The trial court sustained the objection and instructed the jury to

disregard the last statement of the prosecutor. (Tr., p. 449.)
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{¶53} The latitude afforded prosecutors in closing argument does not

“ ‘encompass inviting the jury to reach its decision on matters outside the evidence

adduced at trial’ or ‘allud[ing] to matters not supported by admissible evidence.’ ”

State v. Freeman (2000), 138 Ohio App.3d 408, 419, 741 N.E.2d 566, quoting State

v. Hart (1994), 94 Ohio App.3d 665, 671, 641 N.E.2d 755. A closing argument is

considered in its entirety to determine whether it was prejudicial. State v. Moritz

(1980), 63 Ohio St.2d 150, 157, 407 N.E.2d 1268.

{¶54} While it is true that Appellant’s trial counsel initially failed to object to the

state’s characterization of H.R.’s testimony as consistent in the first part of the state’s

closing argument, it is not clear from the record that the statement deprived Appellant

of a fair trial. First, in response to the state’s consistency argument, Appellant’s trial

counsel clearly argued during his closing argument that the burden of proof rests with

the state, and that the state did not call Appellant’s mother or the police officers who

investigated H.R.’s allegations to testify.

{¶55} More importantly, when the state continued its argument regarding the

consistency of H.R.’s statements during its final closing argument and made the

vague, disjointed reference to subpoenas, Appellant’s trial counsel objected to the

argument, the trial court sustained the objection and instructed the jury to disregard

the state’s argument. A jury is presumed to follow the instructions of the trial court.

State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶93.

{¶56} Finally, although the jury obviously credited most of H.R.’s testimony,

the jury acquitted Appellant of the crimes corresponding to the charges that he
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continuously molested H.R. beginning at the age of ten. The jury was obviously able

to discern those charges that were supported by H.R.’s testimony at trial, and was

not so distracted by the state’s arguments that they were unable to fairly consider the

evidence before them.

{¶57} Appellant relies upon the Sixth Circuit Court of Appeals’ decision

Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000), to argue that the state’s

“consistency” argument constituted prosecutorial misconduct. The Washington Court

held that the state’s argument that the victim’s account of the crime was consistent

over time, despite the fact that none of her previous statements were a part of the

record, warranted habeas corpus relief.

{¶58} However, in Washington, the Sixth Circuit concluded that the defendant

suffered prejudice as a result of his trial counsel’s failure to object to the state’s

egregious character attacks, Id. at 704, his trial counsel’s failure to understand the

difference between the reasonable doubt standard and the clear and convincing

doubt standard, Id. at 708, as well as his failure to object to the state’s testimony

regarding the consistent nature of the victim’s testimony.

{¶59} Moreover, the defendant’s trial counsel in Washington did not object to

the state’s “consistent statement” argument. Here, Appellant’s trial counsel ultimately

objected to the state’s argument, the objection was sustained, and the jury was

instructed to disregard the state’s argument. Consequently, the prosecutor’s conduct

in Washington was far more extreme than in the case sub judice, and the defendant
 -18-

in Washington did not enjoy the benefit of an objection sustained by the trial court.

Therefore, Appellant’s reliance on Washington is misplaced.

{¶60} Next, Appellant argues that he was denied a fair trial when the

prosecutor displayed a bathing suit and underwear during closing argument, despite

the fact that the clothing was not admitted into evidence at trial. While it is clear that

a prosecutor cannot rely on evidence outside the record, H.R.’s testimony about the

clothing was a part of the record. (Tr., p. 259.) In addition, the clothing was

published to the jury during H.R.’s direct testimony. Therefore, despite the state’s

error in again displaying the clothing to the jury during closing argument, we do not

find that the prosecutor’s misconduct deprived Appellant of a fair trial.

{¶61} Finally, with respect to the state’s characterization of Appellant as a

“child molester” in opening and closing argument, the state is permitted to summarize

the evidence at trial. H.R.’s testimony established that Appellant had been molesting

her on a regular basis for several years. Furthermore, while name-calling is

unprofessional and unacceptable, the test for prosecutorial misconduct focuses on

“the fairness of the trial, not the culpability of the prosecutor.” State v. Noling, 98

Ohio St.3d 44, 2002-Ohio-7044, ¶91. Appellant does not explain how the state’s

comments deprived him of a fair trial.

{¶62} Because the state’s conduct, while questionable, did not deprive

Appellant of a fair trial, his second and fourth assignments of error are overruled.

Assignment of Error No. 3:
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{¶63} “The Trial Court Lacked Authority to Try Appellant on Count [sic] 7, 8,

and 9 of the Indictment as the Count [sic] Failed to State an Offense in Violation of

U.S. CONST., amend. XIV and Ohio CONST., art. I, §10.”

{¶64} The indictment in this case omitted the requisite mental state of the

crime of gross sexual imposition involving a victim under the age of thirteen.

Appellant raised the argument before the trial court in his Crim.R. 29 motion for

acquittal. The state argued that gross sexual imposition is a strict liability crime. (Tr.,

p. 396.)

{¶65} Although the subsection of the gross sexual imposition statute that

charges the commission of that crime by threat of force includes the term “purposely,”

the subsection that charges the commission of the crime against a victim under the

age of thirteen does not include a culpable mental state.

{¶66} In State v. Clashman (Feb. 26, 1999), 7th Dist. No. 97 JE 8, this Court

wrote that the culpable mental state for gross sexual imposition involving a child

under the age of thirteen is “purposely,” based upon the definition of “sexual contact.”

Id. at *6, see also Starcher v. Eberlin, 7th Dist. No. 08 BE 19, 2008-Ohio-5042, ¶17,

fn. 1. “Sexual contact” is defined by the code as “any touching of an erogenous zone

of another, including without limitation the thigh, genitals, buttock, pubic region, or, if

the person is a female, a breast, for the purpose of sexually arousing or gratifying

either person.” R.C. 2907.01(B).

{¶67} Crim.R. 7(B) plainly states that an, “indictment shall * * * contain a

statement that the defendant has committed a public offense specified in the
 -20-

indictment.” The rule further states, “[t]he statement may be in the words of the

applicable section of the statute, provided the words of that statute charge an

offense, or in words sufficient to give the defendant notice of all the elements of the

offense with which the defendant is charged.” An indictment that omits an essential

element fails to charge an offense. State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-

1624, 885 N.E.2d 917, ¶38, citing State v. Wozniak (1961), 172 Ohio St. 517, 178

N.E.2d 800.

{¶68} However, the Ohio Supreme Court has cautioned against the

application of structural error in all but those rare cases where multiple violations of a

defendant’s rights follow the defective indictment. State v. Colon, 119 Ohio St.3d

204, 2008-Ohio-3749, 893 N.E.2d 169, ¶6 (“Colon II”), citing Colon at ¶29. In cases

where errors in the complaint do not “ ‘permeate the trial from beginning to end and

put into question the reliability of the trial court in serving its function as a vehicle for

determination of guilt or innocence,’ ” the plain-error analysis under Crim.R. 52(B) is

the proper standard of review. Colon II, ¶8 citing Colon, at ¶23, citing State v. Perry,

101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶17. In Colon II, the Ohio

Supreme Court instructed: “Seldom will a defective indictment have this effect, and

therefore, in most defective indictment cases, the court may analyze the error

pursuant to Crim.R. 52(B) plain-error analysis.” Id. at ¶8.

{¶69} In Colon, the indictment omitted the mens rea element of recklessness,

which was also omitted from the jury charge. The Supreme Court concluded that the

defective indictment constituted structural error because of several constitutional
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violations: the indictment did not include all of the elements of the offense charged,

which impinged upon the defendant’s right to a grand jury indictment; there was no

evidence on the record that the defendant was aware that recklessness was an

element of the crime or that the state produced any evidence that the defendant

acted recklessly, which violated his due process rights; and the defect allowed the

state to treat aggravated burglary as a strict liability crime in its closing argument.

Colon at ¶32.

{¶70} Here, the jury instructions included the definition of “sexual contact,”

and, therefore, the jury was instructed that the state had to prove beyond a

reasonable doubt that Appellant touched H.R. “for the purpose of sexually arousing

or gratifying either person.” R.C. 2907.01(B). Moreover, the definition of “purposely”

was provided to the jury during the instructions for the rape crimes. Consequently,

the concerns raised in Colon are not present in the case sub judice.

{¶71} Accordingly, Appellant’s third assignment of error is overruled.

Assignment of Error No. 5:

{¶72} “The trial court denied Appellant due process under the Fourteenth

Amendment in that his conviction was against the manifest weight of the evidence

and the jury’s verdict was inconsistent with the evidence and testimony presented.”

{¶73} A weight of the evidence challenge concerns, “ ‘the inclination of the

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

issue rather than the other. 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
 -22-

minds, they shall find the greater amount of credible 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.’ ” (Emphasis omitted.) State v. Thompkins

(1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting Black’s Law Dictionary (6th

Ed.1990) 1594.

{¶74} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a “thirteenth juror.” Id. at 387. The court

reviews the entire record, weighs the evidence and all reasonable inferences, and

considers the credibility of witnesses. Id. Additionally, the court 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.’ ” Id., quoting State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717. The reversal of a conviction based upon manifest

weight grounds should only occur in the most, “ ‘exceptional case in which the

evidence weighs heavily against the conviction.’ ” Id. at 387, quoting Martin at 175.

{¶75} Moreover, “ ‘it is inappropriate for a reviewing court to interfere with

factual findings of the trier of fact * * * unless the reviewing court finds that a

reasonable juror could not find the testimony of the witness to be credible.’ ” State v.

Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶10. In a manifest weight analysis,

the appellate court must be mindful that the weight of the evidence and the credibility

of the witnesses are issues primarily for the trier of fact to determine. State v.

DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212.
 -23-

{¶76} The testimony of a single witness, if believed by the trier-of-fact, is

sufficient to support a conviction. State v. Cunningham, 105 Ohio St.3d 197, 2004-

Ohio-7007, 824 N.E.2d 504, at ¶51-57. Here, Appellant’s conviction turned entirely

on H.R.’s credibility. In other words, H.R.’s uncontroverted testimony established the

crimes for which Appellant was convicted, and an acquittal was only possible if the

jury did not believe H.R.’s testimony. Evidently, the jury did not believe that H.R.

fabricated the story. Furthermore, Appellant has not pointed to any inconsistency in

H.R.’s testimony to demonstrate that the jury lost its way in crediting her story.

{¶77} As a consequence, Appellant’s fifth assignment of error is overruled,

and his conviction is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.