State v. Cowen

[Cite as State v. Cowen, 2012-Ohio-3682.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 96969

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

JEFFREY COWEN
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-545125

BEFORE: Keough, J., Stewart, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: August 16, 2012
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Carl Sullivan
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Jeffrey Cowen, appeals from the trial court’s

judgment, rendered after a jury trial, finding him guilty of rape, gross sexual imposition,

and kidnapping, and sentencing him to 25 years to life in prison. We affirm.

I. Procedural History

{¶2} Cowen was indicted in a multi-count indictment for rape, gross sexual

imposition, and kidnapping a victim less than 13 years old. Counts 1-5 charged rape in

violation of R.C. 2907.02(A)(1)(b); Counts 6-10 charged gross sexual imposition in

violation of R.C. 2907.05(A)(4); and Counts 11-15 charged kidnapping in violation of

R.C. 2905.01(A)(4), with sexual motivation specifications.

{¶3} At the conclusion of the State’s case at trial, the trial court dismissed Counts

1, 4, 5, 6, 9, 10, 11, 14, and 15 upon the State’s motion to dismiss. The jury subsequently

found Cowen guilty of two counts of rape, with a further finding that he compelled the

victim to submit by force or threat of force; two counts of gross sexual imposition; and

two counts of kidnapping, without the sexual motivation specifications.

{¶4} At sentencing, the court merged the kidnapping counts into the rape counts.

The court sentenced Cowen to two concurrent terms of a minimum of 25 years to a

maximum of life in prison on the rape convictions, and two concurrent terms of two years

in prison on the gross sexual imposition convictions, to run concurrent to the sentences on
the rape convictions. The court also classified Cowen as a Tier III sex offender under

the Adam Walsh Act. Cowen now appeals.

II. Trial Testimony

{¶5} The evidence at trial demonstrated that the case arose when Cuyahoga

County Department of Children and Family Services (“CCDCFS”) received a referral in

November 2010 from another Children and Family Services agency requesting that

CCDCFS investigate allegations that Cowen had sexually abused six-year-old J.C.1

{¶6} Heather Cigoi, an intake sex abuse social worker for CCDCFS, testified that

after receiving the referral, she interviewed J.C.’s mother, Cynthia Biefeldt, J.C., and

Cowen, who was Biefeldt’s boyfriend. A few weeks later, after gathering more

information, Cigoi took J.C. to St. Vincent Charity Hospital for a medical assessment.

Cigoi testified that as she and J.C. were waiting and talking generally, J.C. spontaneously

told her that his mom and dad fought “all the time because Daddy touches me.”

According to Cigoi, J.C. said that the last incident had occurred the previous Sunday. He

told her that his father would put his penis in his mouth and it would grow. He described

the penis as having hair around it and said that it would get wet; he also said “wet stuff”

would come out of the penis and he would spit it in the sink. J.C. told Cigoi that Cowen

had also touched him other times; one time with his hand on J.C.’s buttocks, another time

when something was put into his buttocks, and another time when Cowen performed oral

1
The victim is referred to by initials in accord with this court’s policy of not disclosing
the identities of child victims of sexual abuse.
sex on him and he performed oral sex on Cowen. J.C. told Cigoi that his mother knew

about what happened and would sometimes sleep in his bed with him to keep him safe.

{¶7} Cigoi then took J.C. to University Hospitals to be examined by a nurse who

specializes in examining individuals who have been sexually abused. Subsequently, she

placed J.C. in a foster home and referred him to the Alpha Clinic at MetroHealth Medical

Center, where he was seen by Dr. Mark Feingold.

{¶8} Dr. Feingold was qualified as an expert and testified that he is a pediatrician

and the director of the Alpha Clinic, which evaluates and treats children who might have

been sexually abused. Dr. Feingold testified that the Clinic has established procedures

for evaluating child victims of sexual abuse and the procedures were followed when he

evaluated J.C. on January 4, 2011.

{¶9} Dr. Feingold said that J.C. complained of pain around his penis when the

doctor pulled the foreskin back, and he told Dr. Feingold that he had some bad dreams.

He also told Dr. Feingold that “some bad things” had happened in Cleveland and that his

“step-dad Jeff” was the perpetrator. J.C. told Dr. Feingold that Jeff had put his finger

and his “private part” in J.C.’s bottom; then, using anatomically-correct drawings of a boy

and adult man, J.C. pointed to specific body parts and explained that the male had put his

fingers and penis in the boy’s buttocks, and his penis in the boy’s mouth. J.C. told Dr.

Feingold that this had happened “many times” and that his bottom would bleed and hurt

when he went to the bathroom afterwards. J.C. also told Dr. Feingold that Jeff told him

not to tell anyone what had happened or “he would kill me with his gun.”
 {¶10} Dr. Feingold testified that his physical examination of J.C. was normal but

that a normal exam does not mean that sexual abuse has not occurred because lacerations

or tears to the rectum heal quickly and may not leave a scar. Dr. Feingold stated that his

diagnosis upon completing the exam was child sexual abuse.

{¶11} J.C. initially testified that he “forgot” what had happened to him and did not

want to talk about it. Upon further questioning, J.C. testified that Cowen put his penis in

his mouth “four times” and in his bottom “more than one” time. J.C. identified a picture

of the house where he lived with Cowen and Biefeldt and a picture of his bedroom and

the “pallet” where he slept. J.C. testified that the events with Cowen occurred on the

pallet in his bedroom. He testified that sometimes he would have to spit something

“nasty” in the sink after Cowen inserted his penis in J.C.’s mouth.

{¶12} The defense presented three witnesses. Dr. Sandra McPherson, a clinical

and forensic psychologist, testified that an interview of a child who has allegedly been

sexually abused should be videotaped or audiotaped. She admitted, however, that if a

child suddenly and spontaneously disclosed to her that he had been sexually abused, she

would not stop the conversation so it could be videotaped. Dr. McPherson testified that

in this case, Ms. Cigoi followed proper protocol in allowing J.C. to continue to disclose

what had happened to him when he suddenly began telling her about Cowen’s sexual

abuse. She testified further that a six-year-old child’s description of a penis as hairy,

becoming hard, wet, and being inserted into the child’s mouth is beyond the child’s

normal experience and development.
 {¶13} Cynthia Biefeldt testified that she, J.C., and Cowen moved to Cleveland

from Florida in August 2010. Cynthia stated that she loved Cowen very much and had

dated him for four years. She testified further that she did not recall ever seeing Cowen

follow J.C. into his bedroom and never heard J.C. scream for help from his bedroom.

She also testified that she had punished J.C. several times for lying. Cynthia stated that

she was arrested in December 2010 and subsequently pled guilty to obstruction of justice

regarding this case.

{¶14} Tammy Biefeldt, Cynthia’s mother and J.C.’s grandmother, who lives in

North Carolina, testified that prior to trial, she had not seen J.C. for approximately two

years, but that he called her several times after he had been placed in foster care. Tammy

testified that in these phone conversations, she asked J.C. whether Cowen had ever

abused him; the trial court sustained the State’s objections when defense counsel asked

Tammy several times what J.C. had told her. She testified further that she believed

Cowen was a “manipulator” and a “charmer” and she thought he was “emotionally

abusive.”

III. Analysis

A. Right to Confront Witnesses

{¶15} Early in trial, the court issued an order in limine prohibiting any evidence

that Cowen allegedly molested J.C. in Florida before he, Cynthia Biefeldt, and J.C.

moved to Ohio. The court explained that its ruling was to ensure that the jury did not
impute any prior bad acts to Cowen that had never been proven and were not the subject

of the trial.

{¶16} On the fourth day of trial, defense counsel informed the court that J.C.’s

grandmother, Tammy Biefeldt, had made tape recordings of several telephone

conversations she had with J.C. after Cowen’s arrest in which J.C. allegedly denied that

Cowen had “ever” molested him. Defense counsel sought to introduce these tapes at trial

but the trial court ruled that the tapes were inadmissible. Later, during Tammy Biefeldt’s

testimony, the trial court sustained the State’s objection to any testimony regarding what

J.C. told Tammy during the telephone calls.

{¶17} In his first assignment of error, Cowen argues that the trial court’s rulings

violated his constitutional right to confront the witnesses against him. We find no error.

{¶18} The admission or exclusion of relevant evidence is within the trial court’s

discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 434 (1987), paragraph two of

the syllabus. We therefore review a trial court’s decision regarding the admission of

evidence under an abuse of discretion standard. Id. A trial court abuses its discretion

when it acts in an unreasonable, arbitrary, or unconscionable manner. State v. Parker,

8th Dist. No. 93835, 2011-Ohio-1059, ¶ 60.

{¶19} The trial court did not act unreasonably in excluding the tapes and any

reference to the tapes. First, defense counsel did not disclose the existence of the tapes

in a timely manner as required by Crim.R. 16. Further, as the trial court noted, the tapes

appear to have been manufactured for trial by an interested party who tried to coach a
seven-year-old child over the telephone. And, as the trial court also noted, the tapes

made no distinction between the alleged molestation in Florida and the alleged events in

Ohio. Admitting the tapes would therefore have negated the trial court’s ruling that in

order to protect Cowen from the improper admission of “other acts” evidence, no

evidence regarding alleged events in Florida was to be admitted.

{¶20} With respect to the trial court’s exclusion of any testimony from Tammy

regarding what J.C. told her on the phone, defense counsel stated that Tammy would

testify that J.C. told her that Cowen had never molested him, contrary to J.C.’s testimony

at trial. Under Evid.R. 613(B), extrinsic evidence of a prior inconsistent statement of a

witness is admissible if (1) the witness has been afforded a prior opportunity to explain or

deny the statement; and (2) the subject matter of the statement is a fact that is of

consequence to the determination of the action. Here, defense counsel did not give J.C.

an opportunity to explain or deny any statements he allegedly made to Tammy.

Specifically, defense counsel never asked J.C. if it were true that he had told his

grandmother that Cowen never touched him. Accordingly, defense counsel failed to lay

the proper foundation for the admission of extrinsic evidence of a prior inconsistent

statement of a witness and, therefore, the trial court properly excluded any testimony from

Tammy regarding what J.C. told her during his phone conversations with her.

{¶21} In his second assignment of error, Cowen contends that the trial court

violated his rights to confrontation and cross-examination when it ruled that defense

counsel could not “challenge the quality of the police investigation.”
 {¶22} At trial, Cleveland police detective James Butler, who investigated the

case, testified that the police collected several items from J.C.’s bedroom (a comforter,

pillow, and pillowcase) but the Bureau of Criminal Identification and Investigation

refused to DNA-test the items. Butler testified that BCI’s refusal to test for DNA in

some cases is frustrating but understandable: DNA testing is very expensive, and one

would expect to find the DNA of an individual who lived in the home on the fabrics

found in the home.

{¶23} During the presentation of the defense case, defense counsel informed the

court that he wanted to call Michael Velton, a BCI representative, to testify that he did not

have or did not remember having a conversation with Detective Butler in which he

refused to test the bedding from J.C.’s bedroom, and that Velton had no records at BCI

requesting that the bedding be tested. Although the trial court never ruled that defense

counsel could not call Velton, the judge informed him that counsel had not met the

Evid.R. 613(B) requirements for bringing in extrinsic evidence to impeach Det. Butler’s

testimony about whether BCI refused to test the bedding.

{¶24} As noted above, extrinsic evidence of a witness’s prior inconsistent

statement is admissible when the subject matter of the statement is a fact that is of

consequence to the determination of the litigation. Here, Det. Butler’s testimony that

BCI refused to test the bedding was not a fact of consequence to the determination of the

action; i.e., whether Cowen molested J.C. It was a collateral matter to the determination
of Cowen’s guilt and, thus, under Evid.R. 613(B), not admissible to impeach Det.

Butler’s credibility.

{¶25} The trial court did not abuse its discretion in excluding Michael Velton’s

testimony and the tapes of telephone conversations between Tammy and J.C. and any

reference to them. Assignments of error one and two are therefore overruled.

B. Witness Misconduct

{¶26} In his third assignment of error, Cowen contends that J.C.’s misconduct

while he was testifying is grounds for a new trial. Specifically, Cowen contends that

while he was testifying, J.C. looked to Heather Cigoi three times for the answer but the

trial court refused to allow defense counsel to approach the bench about the issue. He

also contends that Cigoi’s presence in the courtroom violated the trial court’s order

regarding separation of witnesses.

{¶27} The record is clear, however, that Cigoi was not in the courtroom during

J.C.’s testimony. Theresa Matthews, the State’s victim advocate, was in the back of the

courtroom during J.C.’s testimony, but the trial judge specifically stated that she looked at

Matthews periodically while J.C. was testifying and did not observe any improper

responses or gestures from her. The trial judge also stated that she would have

immediately taken action if she had noticed anything improper.

{¶28} Cowen’s third assignment of error is without merit and therefore overruled.

C. Closing Argument
 {¶29} In his fifth assignnment of error,2 Cowen argues that he was denied due

process of law when the trial court limited closing argument to 30 minutes for each side.

{¶30} “The trial court in a criminal proceedings may in its discretion limit the

duration of closing arguments, as long as such limitation is reasonable under the

circumstances.” State v. Ferrette, 18 Ohio St.3d 106, 110, 480 N.E.2d 399 (1985). We

therefore review the trial court’s decision under an abuse-of-discretion standard,

recognizing that depending on the circumstances, what may be a reasonable limitation in

one case could be unreasonable in another. State v. Jenkins, 15 Ohio St.3d 164, 221, 473

N.E.2d 264 (1984).

{¶31} In determining whether a court has abused its discretion in imposing a time

limit for closing argument, a reviewing court should consider (1) the circumstances of the

case, (2) the gravity of the offense, (3) the number of witnesses, (4) the volume of the

evidence, and (5) the length of the trial. State v. Moseley, 8th Dist. No. 92110,

2010-Ohio-3498, ¶ 60, citing Jenkins at 221.

{¶32} Considering these factors, we find the trial court’s imposition of 30 minutes

for closing argument to be unreasonable. Cowen was indicted on multiple counts of

rape, gross sexual imposition, and kidnapping. The jury heard five days of testimony

involving nine witnesses whose testimony spanned nearly 1000 pages of the transcript.

And Cowen faced significant prison time (25 years to life) if he was convicted of the

charges. Accordingly, although we agree with the trial court that a time limit forces

2
We address the fourth assignment of error later in the opinion.
counsel to make a succinct and focused closing argument, we find the trial court’s

limitation on closing argument in this case to be unreasonable.

{¶33} Nevertheless, we do not find that Cowen’s substantial rights were

prejudiced such that reversal is warranted. There is nothing in the record, and Cowen

makes no argument, to demonstrate that the 30-minute time limit impaired Cowen’s

defense or that a greater time period would have changed the outcome. Further, our

review of the record demonstrates that Cowen’s counsel was able to effectively

summarize the evidence and present the defense’s theory of the case, while criticizing the

State’s theory, all within the 30-minute time limitation. Accordingly, we find the trial

court’s error to be harmless beyond a reasonable doubt. See Crim.R. 52(A); Moseley at ¶

62.

{¶34} The fifth assignment of error is overruled.

D. Disparagement of Defense Counsel

{¶35} In his sixth assignment of error, Cowen contends that he was denied his

constitutional right to due process and a fair trial because the trial judge “disparaged”

defense counsel, yelled at counsel, and embarrassed counsel by admonishing him in front

of the jury during closing argument. He claims that the trial judge was biased against

him.

{¶36} “It is well settled that a criminal trial before a biased judge is fundamentally

unfair and denies a defendant due process of law.” State v. Dean, 127 Ohio St.3d 1420,

2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. Judicial bias has been described as “‘a hostile

feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or

his attorney, with the formation of a fixed anticipatory judgment on the part of the judge,

as [opposed to] an open state of mind which will be governed by the law and the facts.’”

Id., quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956),

paragraph four of the syllabus.

{¶37} Our review of the record demonstrates that the judge never disparaged

defense counsel in front of the jury. The judge acknowledged that when defense counsel

began telling the jury in closing argument that Cowen was not indicted until several

weeks after Cigoi’s initial interview with the family, she sternly instructed the jury that

there was no evidence regarding when Cowen was charged and the jury was to disregard

counsel’s statement. Although counsel may have been embarrassed at the judge’s stern

inflection during her instruction to the jury to disregard counsel’s statement, our review of

the record demonstrates that the judge instructed counsel at the beginning of trial that

evidence and discussion regarding when Cowen was charged was not relevant and would

not be permitted. Accordingly, we find no bias in the court’s instruction to the jury.

{¶38} Further, our review of the record demonstrates that the trial judge harbored

no bias against defense counsel or Cowen during the proceedings. The record reflects

that the judge treated all parties and counsel with respect as manifested in the judge’s

comments and rulings during the trial.

{¶39} The sixth assignment of error is therefore overruled.
E. Dr. Feingold’s Testimony

{¶40} In his seventh assignment of error, Cowen contends that he was denied his

right to a fair trial because in response to the prosecutor’s question regarding whether he

reached a medical diagnosis after examining J.C., Dr. Feingold testified that his diagnosis

was “child sexual abuse.” Cowen contends that Dr. Feingold’s testimony was, in

actuality, opinion testimony that J.C. was telling the truth about what happened to him, in

violation of the Ohio Supreme Court’s directive in State v. Boston, 46 Ohio St.3d 108,

545 N.E.2d 1220 (1989).

{¶41} In Boston, the Ohio Supreme Court determined that expert testimony on the

ultimate issue of whether sexual abuse has occurred in a particular case is helpful to

jurors and is therefore admissible pursuant to Evid.R. 702 and 704. State v. Gersin, 76

Ohio St.3d 491, 1996-Ohio-114, 668 N.E.2d 486 (1996). Nevertheless, the Court

directed that while an examining physician may provide his opinion as to whether he

observed evidence of sexual abuse, he may not vouch for the veracity of the child victim.

Boston at 108.

{¶42} Here, despite Cowen’s assertions otherwise, Dr. Feingold expressed no

opinion as to J.C.’s veracity. Dr. Feingold’s testimony related to his examination of J.C.

and his medical diagnosis as a result of that examination and J.C.’s statements to him.

“That this diagnosis was based, in part, on statements made to him by the victim does not

require the conclusion that the doctor is vouching for the veracity of the victim’s

testimony.” State v. Johnson, 8th Dist. No. 80436, 2002-Ohio-7057, ¶ 47. See also
State v. Ferrell, 8th Dist. No. 92573, 2010-Ohio-1201, ¶ 65 (doctor’s testimony regarding

child victim’s description of incidents of sexual abuse and diagnosis of sexual abuse was

not expression of doctor’s opinion as to victim’s veracity). The seventh assignment of

error is therefore overruled.

{¶43} In his eighth assignment of error, Cowen contends that he was denied his

constitutional right to effective assistance of counsel because trial counsel did not object

to Dr. Feingold’s testimony regarding his diagnosis of child sexual abuse. The

two-pronged test for ineffective assistance of counsel requires that the defendant show

that (1) counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Finding no error in the admission of Dr. Feingold’s testimony, we

likewise find no error in counsel’s failure to object to his testimony. The eighth

assignment of error is therefore overruled.

F. Sufficiency and Manifest Weight of the Evidence

{¶44} In assignments of error nine and ten, Cowen argues that his convictions

were not supported by sufficient evidence and were against the manifest weight of the

evidence.

{¶45} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 942 (1991), paragraph two of the syllabus.

{¶46} A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion. State v. Thomas, 70 Ohio St.2d 79, 80, 434

N.E.2d 541 (1982). A reviewing court may reverse the judgment of conviction if it

appears that 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.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A finding that a

conviction was supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency. Id. at 388.

{¶47} Cowen was convicted of rape in violation of R.C. 2907.02(A)(1)(b), which

provides that “[n]o person shall engage in sexual conduct with another who is not the

spouse of the offender * * * when * * * the other person is less than thirteen years of

age.” He was convicted of gross sexual imposition in violation of R.C. 2907.05(A)(4),

which provides that “[n]o person shall have sexual contact with another, not the spouse of

the offender; cause another, not the spouse of the offender, to have sexual contact with

the offender * * * when * * * the other person * * * is less than thirteen years of age.”

He was also convicted of kidnapping in violation of R.C. 2905.01(A)(4), which provides

that “[n]o person * * * in the case of a victim under the age of thirteen * * * by any

means, shall * * * restrain the liberty of the other person * * * to engage in sexual

activity.”
 {¶48} Cowen argues that his convictions were not supported by sufficient evidence

and were against the manifest weight of the evidence because they were based only upon

J.C.’s testimony, without any other corroboration, and that there was no credible evidence

to support his convictions. We disagree.

{¶49} Although J.C. initially testified that he “forgot” what happened to him and

did not want to talk about it, with the assistance of line drawings of a man and a boy, he

testified very specifically as to what Cowen had done to him. He told the jury that

Cowen had put his “private part” in his mouth four times and in his bottom more than

once. He also identified pictures of his house, his bedroom, and the “pallet” in his

bedroom where these events occurred. He identified a picture of the bathroom and the

sink in the bathroom, and testified that he sometimes spit something “nasty” in the sink

after Cowen inserted his penis in his mouth “because it tasted yucky.”

{¶50} J.C.’s trial testimony was consistent with what he unexpectedly told Heather

Cigoi while they were waiting for him to be assessed at St. Vincent Charity Hospital.

Cigoi testified that she had not asked J.C. any direct questions about the suspected abuse

when he suddenly and spontaneously told her that his mom and dad fought because

Cowen touched him. He then described multiple incidents in which he was sexually

abused by Cowen. Additionally, J.C. told Cigoi that Cowen’s penis was hairy, would get

wet, and that “wet stuff” would come out of it and he would spit that in the sink. Cigoi

testified that J.C. told her that he did not tell people what had happened to him because he

was afraid of Cowen and would get whipped.
 {¶51} J.C.’s trial testimony was also consistent with what he told Dr. Feingold.

J.C. told Dr. Feingold that some “bad things” had happened in Cleveland and that his

“step-dad Jeff” was the perpetrator. Using line drawings of an adult male and a boy to

illustrate what had happened, J.C. pointed to specific body parts and told Dr. Feingold

that the man had put his fingers and penis in the boy’s buttocks and his penis in the boy’s

mouth “many times.” J.C. also told Dr. Feingold that Cowen told him not to tell anyone

what had happened or “he would kill me with his gun.” Dr. Feingold testified that he

followed established procedures for evaluating child victims of sexual abuse when he

evaluated J.C. and that based upon the detailed history from J.C., his medical diagnosis

was child sexual abuse.

{¶52} In light of this testimony, the jury did not lose its way in finding Cowen

guilty of rape, kidnapping, and gross sexual imposition. The state’s evidence

demonstrated that Cowen engaged in sexual conduct with J.C., and that he forced J.C. to

have sexual contact with him. Although Cowen contends that J.C.’s testimony was not

credible, Dr. Feingold testified that six-year-old children generally do not make up this

kind of story and, further, if the story were made up, it would be difficult for a

six-year-old child to consistently tell the same story. J.C., however, reported the same

details about what had happened to Ms. Cigoi and Dr. Feingold, and at trial.

{¶53} Furthermore, the testimony of the defense witnesses helped to corroborate

J.C.’s testimony. Dr. McPherson testified that a six-year-old child’s description of a

penis as hairy, becoming hard and wet, and inserted into the child’s mouth is beyond the
child’s normal experience and development. Cynthia Biefeldt admitted that she pleaded

guilty to obstruction of justice in connection with this case. And Tammy Biefeldt

testified that her initial impression of Cowen was that he was emotionally abusive and a

“manipulator.”

{¶54} Although we consider the credibility of witnesses in a manifest weight

challenge, we are mindful that the determination regarding witness credibility rests

primarily with the trier of fact because the trier of fact is in the best position to view the

witnesses and observe their demeanor, gestures, and voice inflections — observations that

are critical to determining a witness’s credibility. State v. Clark, 8th Dist. No. 94050,

2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068

(1996), and State v. Antill, 176 Ohio St. 61, 66, 197 N.E.2d 5648 (1964). And a jury is

free to accept or reject any or all the testimony of any witness. State v. Smith, 8th Dist.

No. 93593, 2010-Ohio-4006, ¶ 16. Upon review, we do not find that the jury lost its way

or created a miscarriage of justice in finding Cowen guilty of rape, gross sexual

imposition, and kidnapping.

{¶55} Accordingly, Cowen’s convictions are supported by the manifest weight of

the evidence; thus, they are also supported by sufficient evidence. The ninth and tenth

assignments of error are therefore overruled.

G. Mistrial

{¶56} Prior to trial, the judge instructed the parties that there was to be no

testimony or evidence relating to any alleged sexual abuse of J.C. by Cowen in Florida.
The parties stipulated that the only information to be given to the jury about any events

alleged to have occurred in Florida was that “Cuyahoga County Children and Family

Services received a referral from another Children and Family Services agency requesting

them to investigate allegations of possible sexual abuse of [J.C.] by Jeffrey Cowen.”

{¶57} Cigoi testified on direct examination regarding what she did after receiving

the referral. Upon cross-examination, defense counsel vigorously challenged the

vagueness of her written report, as well as alleged inaccuracies in the report. Cigoi’s

responses were necessarily limited because she could not mention how the alleged events

in Florida contributed to her conclusion that Cowen had sexually abused J.C. Upon

recross, defense counsel again vigorously challenged Cigoi’s conclusion that Cowen had

sexually abused J.C. When defense counsel intimated that Cigoi’s conclusion was wrong

because J.C.’s story was not consistent, Cigoi informed him that it was consistent with

information that she “got from another state.” When defense counsel asked, “[a]nd there

were no other witnesses, were there?” — Cigoi responded that “[t]here was information

from another state that I used.” When defense counsel then asked Cigoi, “[i]n that

information, there was no mention of any eye witnesses, were there?” — she responded,

“[n]o eye witnesses but another child victim.”

{¶58} In his fourth assignment of error, Cowen contends that the trial court erred

in denying his motion for a mistrial after Cigoi blurted out this information.

{¶59} The grant or denial of an order of mistrial is within the trial court’s

discretion. State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). A trial
court need not declare a mistrial unless “the ends of justice so require and a fair trial is no

longer possible.” Id.

{¶60} Cowen contends that a fair trial was no longer possible after Cigoi’s

statement and that “but for that remark in such a close case,” the jury would not have

found him guilty. We are not persuaded.

{¶61} Cigoi’s reference to another victim was an isolated comment in a five-day

trial and was immediately followed by an instruction to the jury to disregard the

statement. After Cigoi testified, the judge again instructed the jury about the stipulation

regarding the referral from another agency to CCDCFS and told them “the only relevance

to you of the other Children and Family Services agency is the fact that explains why the

local Cuyahoga County department went out to investigate. So you are to disregard, not

speculate, or use in any way information mentioned from another state or agency.” And

before closing arguments, the judge again instructed the jury that “[y]ou may make no use

of any information you heard or thought you heard of what happened or supposedly

happened in any other state. No evidence has been presented in this case of anything that

happened in any other state.”

{¶62} A jury is presumed to follow the instructions, including curative

instructions, given it by a trial judge. State v. Garner, 74 Ohio St.3d 49, 59,

1995-Ohio-168, 656 N.E.2d 623. Further, this was not, as Cowen contends, a “close”

case. As discussed above regarding assignments of error nine and ten, there was

overwhelming evidence of Cowen’s guilt. Thus, Cowen was not prejudiced by Cigoi’s
isolated remark and the trial court did not abuse its discretion in denying his motion for a

mistrial. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶

175 (defendant not prejudiced by witness’s isolated reference to defendant’s prior

conviction where there was overwhelming evidence of defendant’s guilt).

{¶63} The fourth assignment of error is therefore overruled.

{¶64} Affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

pleas court to carry this judgment into execution.

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

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
MARY EILEEN KILBANE, J., CONCUR