State v. Pence

[Cite as State v. Pence, 2013-Ohio-1388.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-05-045

: OPINION
- vs - 4/8/2013
:

BOBBY J. PENCE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 11CR27889

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Craig A. Newburger, 477 Forest Edge Drive, South Lebanon, Ohio 45065, for defendant-
appellant

RINGLAND, P.J.

{¶ 1} Defendant-appellant, Bobby Pence, appeals his conviction in the Warren

County Court of Common Pleas for gross sexual imposition.

{¶ 2} On September 19, 2011, appellant was indicted on three counts of gross sexual

imposition, each a third-degree felony in violation of R.C. 2907.05(A)(4). The charges

stemmed from allegations that appellant had sexual contact with his ten-year-old
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stepdaughter, E.S.

{¶ 3} Appellant's case proceeded to a jury trial. At the close of the state's case, the

defense moved for acquittal pursuant to Crim.R. 29. The trial court granted the motion with

respect to Counts Two and Three of the indictment, but denied the motion as to Count One.

Appellant was subsequently convicted of Count One of the indictment.

{¶ 4} Prior to sentencing, appellant moved for a new trial, arguing that the prosecutor

had engaged in misconduct when she elicited improper testimony regarding appellant's

constitutional right against self-incrimination. The trial court overruled appellant's motion and

imposed a six-month jail sentence and five years of mandatory community control.

{¶ 5} Appellant timely appeals, raising four assignments of error.

{¶ 6} Assignment of Error No. 1

{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT

PROTECTING HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION AND

NOT GRANTING APPELLANT'S RELATED MOTION FOR A NEW TRIAL.

{¶ 8} Appellant first claims that the state's use of his pre-arrest, pre-Miranda silence

during its case-in-chief violated his Fifth Amendment right against self-incrimination.

{¶ 9} The Fifth Amendment to the United States Constitution provides that no person

"shall be compelled in any criminal case to be a witness against himself." State v. Haddix,

12th Dist. No. CA2011-07-075, 2012-Ohio-2687, ¶ 20. After the United States Supreme

Court's landmark decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966),

jurisprudence began to focus on the distinction between pre-arrest and post-arrest silence,

because some circumstances inherent in pre-arrest silence do not implicate one's Fifth

Amendment rights. Haddix at ¶ 20.

{¶ 10} In State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, the Ohio Supreme

Court held that the "use of a defendant's pre-arrest silence as substantive evidence of guilt
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violates the Fifth Amendment privilege against self-incrimination." Id. at ¶ 38. In Leach, two

women called the police and accused the defendant of attempted rape and other crimes. Id.

at ¶ 3. During the state's case-in-chief, the police investigator testified that one of the victims

had provided him with the defendant's phone number. Id. at ¶ 5. The investigator called the

defendant and made an appointment to talk with him the next day. Id. at ¶ 5. The

investigator testified that the defendant did not keep the appointment, and that the defendant

had left a message on the police answering machine that he wanted to speak with an

attorney before talking with the police. Id.

{¶ 11} In finding that the state violated the defendant's Fifth Amendment rights, the

court in Leach explained:

The state in this case presented testimony that Leach, who had
not yet been arrested or Mirandized, remained silent and/or
asserted his right to counsel in the face of questioning by law
enforcement. This testimony was clearly meant to allow the jury
to infer Leach's guilt. Otherwise, jurors might reason, Leach
would have offered his version of events to law enforcement.

Id. at ¶ 25.

{¶ 12} The court further stated that the "[u]se of pre-arrest silence in the state's case-

in-chief would force defendants either to permit the jury to infer guilt from their silence or

surrender their right not to testify and take the stand to explain their prior silence." Id. at ¶ 31.

Leach ultimately concluded that "[b]ecause the evidence of guilt was not overwhelming in this

case, the admission of defendant's pre-arrest, pre-Miranda silence was clearly prejudicial."

Id. at ¶ 38.

{¶ 13} However, prior to finishing its analysis, Leach distinguished the use of pre-

arrest, pre-Miranda silence in the state's case-in-chief from using pre-arrest, pre-Miranda

silence to impeach. The court found that the latter is allowed, because impeachment

necessarily means that the defendant has elected to set aside his constitutional right to

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silence and testify. The court explained that the use of pre-arrest silence as impeachment

evidence "is permitted because it furthers the truth-seeking process. Otherwise, a criminal

defendant would be provided an opportunity to perjure himself at trial, and the state would be

powerless to correct the record." Id. at ¶ 33.

{¶ 14} Using the framework of Leach, we will now review the state's use of appellant's

pre-arrest, pre-Miranda silence. During the state's case-in-chief, the prosecutor asked the

lead investigator in the case, Detective Josh Holbrook, the following questions:

[THE STATE]: And did you do anything else in regard to any type
of investigation in this case?

[DETECTIVE HOLBROOK]: At that point I believe the same day,
[August] 23rd, I attempted to make contact with [appellant].

[THE STATE]: Okay. Did you, in fact, make contact with
[appellant]?

[DETECTIVE HOLBROOK]: No, I left a voicemail and a short
time later I received, I believe, a phone call from his attorney.

[THE STATE]: Okay. And the reason why you were contacting
[appellant] was for what purpose?

[DETECTIVE HOLBROOK]: Just to get his side of the story.

[THE STATE]: Were you ever able to obtain that?

[DETECTIVE HOLBROOK]: No, I was not.

{¶ 15} While not disputing the rule established in Leach, the state argues that

appellant's case is distinguishable. The state asserts that Detective Holbrook's testimony

was permissible as evidence of the "course of the investigation."

{¶ 16} In Leach, the court held that, in limited circumstances, testimony of pre-arrest

silence is appropriate if it is introduced as evidence of the "course of the investigation."

Leach, 2004-Ohio-2147 at ¶ 32. Leach found that, while it was improper to admit the

investigator's direct testimony regarding the defendant's decision to exercise his right to

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silence through the invocation of counsel over the telephone, his testimony regarding the

defendant's failure to keep his scheduled appointment with the police was "legitimate." Id.

{¶ 17} Here, Detective Holbrook's testimony regarding his phone call to appellant and

appellant's failure to return the call may have been a "legitimate" response to the state's

questions about the investigation. However, we do not view the detective's testimony starting

with the return phone call from appellant's attorney the same way. Instead, we view this

testimony as the state's use of appellant's pre-arrest, pre-Miranda silence as substantive

evidence of appellant's guilt in violation of his Fifth Amendment privilege against self-

incrimination. See id. at ¶ 25. Here, at least implicitly, appellant invoked his Fifth

Amendment right to silence when he had his attorney contact the police on his behalf.

Although the state claims that it did not use this testimony as substantive evidence of

appellant's guilt, we conclude that it could imply nothing else, i.e., "that innocent people

speak to police to clear up misunderstandings, while guilty people consult with their

attorneys." Id. at ¶ 32.

{¶ 18} The remaining issue is whether the Fifth Amendment violation requires reversal

of appellant's conviction. We conclude that it does not. First, appellant did not object to this

line of questioning, therefore we will review the challenge for plain error only. State v. Lloyd,

12th Dist. Nos. CA2007-04-052, CA2007-04-053, 2008-Ohio-3383, ¶ 13, citing State v.

Wayne, 12th Dist. No. CA2006-06-128, 2007-Ohio-3351. For a reviewing court to find plain

error, (1) the court must find error, (2) the error must be plain, that is, it must be an "obvious"

defect in the trial proceedings, and (3) the error must have affected "substantial rights," that

is, the trial court's error must have affected the outcome of the trial. Lloyd at ¶ 13, quoting

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16. Courts are to notice plain error

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

miscarriage of justice." State v. Barnes, 94 Ohio St.3d 21, 27 (2002). See also Crim.R.
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52(B).

{¶ 19} Regarding a criminal defendant's constitutional rights, the improper admission

of evidence "is harmless 'beyond a reasonable doubt' if the remaining evidence alone

comprises 'overwhelming' proof of [a] defendant's guilt." Wayne, 2007-Ohio-3351 at ¶ 28,

quoting State v. Williams, 6 Ohio St.3d 281, 290 (1983). Such an error must be reviewed in

the context of other evidence presented in order to determine the effect, if any, that it had on

the trial. Wayne at ¶ 28.

{¶ 20} Initially, we note that in Leach, the court found that the defendant was

prejudiced by the state's use of his pre-arrest, pre-Miranda silence during its case-in-chief

partly because the state's case "contained no physical evidence and rested solely on the

credibility of the state's witnesses." Leach, 2004-Ohio-2147 at ¶ 29. The court explained

that, because the evidence of guilt was not "overwhelming," the admission of the defendant's

pre-arrest, pre-Miranda silence was "clearly prejudicial." Id. at ¶ 38. We concede that, as in

Leach, the state's case rested solely on its witnesses' credibility. Further, we are aware of at

least one other Ohio case, aside from Leach, that has found that a sexual assault case

resting solely on the credibility of the state's witnesses, without any physical evidence, did not

demonstrate "overwhelming" guilt so as to negate the plain error, or prejudicial effect, of the

state's references to a defendant's silence. See State v. Riffle, 9th Dist. No. 07CA0114-M,

2008-Ohio-4155 (the state's references to defendant's pre-arrest, post-Miranda silence

during its case-in-chief were "even more egregious than in Leach").

{¶ 21} However, we find that this case is distinguishable from Leach and Riffle in more

crucial respects, and therefore the disputed evidentiary admission herein was not inherently

prejudicial. First, unlike Leach and Riffle, appellant testified during trial, which mitigated the

potential prejudice to appellant, at least to some extent. During cross-examination, the state

asked appellant whether he ever gave a statement to Detective Holbrook, and appellant
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responded that he had not. The state also asked appellant whether he contacted E.S.'s

father, or anyone else on that side of the family "to tell them that [he] didn't do it," to which

appellant responded "[n]o." When appellant took the stand, he "cast aside his cloak of

silence," and cross-examination on his pre-arrest, pre-Miranda silence "further[ed] the truth-

seeking process." Leach, 2004-Ohio-2147 at ¶ 22, 33, citing Jenkins v. Anderson, 446 U.S.

231, 238, 100 S.Ct. 2124 (1980). Unlike the court in Leach, we are not concerned that the

state's use of appellant's pre-arrest silence in its case-in-chief forced him to later "surrender

[his] right not to testify and take the stand to explain [his] prior silence." Leach at ¶ 31.

Appellant makes no such claim, and there is no evidence of any such compulsion.

{¶ 22} Additionally, unlike Leach and Riffle, the state did not attempt to capitalize on,

or exploit, appellant's pre-arrest silence throughout its case, and its treatment of appellant's

silence was far less egregious than in those cases. See Wayne, 2007-Ohio-3351 (no plain

error from admission of testimony regarding defendant's post-arrest, pre-Miranda silence,

where the state made no attempt to capitalize on the testimony, and the improper influence

created by the testimony was cured by other evidence). In Leach and Riffle, the state made

three or more references to the defendant's pre-arrest silence. Further, the state did not

restrict its comments in either case to its case-in-chief, but also made remarks during its

opening statement and/or closing argument. Conversely, here, the state elicited only one

reference to appellant's silence in its case-in chief, during the direct examination of Detective

Holbrook. Further, as we will discuss later, the improper influence created by Detective

Holbrook's testimony was cured by the other evidence in this case, which, if believed, was

more than enough to support appellant's guilt.

{¶ 23} Under these circumstances, we find that the admission of Detective Holbrook's

reference to appellant's pre-arrest, pre-Miranda silence was not inherently prejudicial and did

not constitute plain error.
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{¶ 24} In closing, we emphasize that our holding is based upon the sum of these

factors, and that no one factor is dispositive. Clearly, under Leach, the simple fact that a

defendant testifies at trial does not automatically negate the prejudice that ensues when the

state comments on a defendant's pre-arrest silence during its case-in-chief. We only note

that under these particular circumstances, where the state's conduct was not as egregious as

in Leach, the fact that appellant voluntarily took the stand and addressed his silence, and the

existence of other compelling evidence, the prejudice that occurred here did not rise to the

level of plain error. Compare State v. Estepp, 2d Dist. No. 2006 CA 22, 2007-Ohio-2596

(applying Leach to reverse convictions where the testifying officer referred to repeated failed

attempts to interview defendant; the court found that the inference of guilt by silence, coupled

with lack of overwhelming evidence of guilt amounted to plain error).

{¶ 25} Appellant's first assignment of error is overruled.

{¶ 26} Assignment of Error No. 2:

{¶ 27} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT

EXCLUDING TESTIMONY FROM CHILDREN SERVICES WORKERS THAT SERVED A

FORENSIC OR INVESTIGATIVE PURPOSE, AND FURTHER ERRED TO THE PREJUDICE

OF APPELLANT BY NOT EXCLUDING THE STATE'S CLOSING ARGUMENTS

REFERRING TO SAID TESTIMONY.

{¶ 28} Appellant next argues that the trial court erred by admitting testimony from two

social workers that served a forensic or investigative purpose. Appellant acknowledges that

his trial counsel did not object to this evidence at trial, and thus asserts plain error. Lloyd,

2008-Ohio-3383 at ¶ 13.

{¶ 29} During trial, Teresa Wiles, a forensic interviewer with the Child Advocacy

Center of Warren County, testified on behalf of the state. Wiles testified that during her

interview with E.S., E.S. drew "X" marks on an anatomically correct female drawing to show
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where appellant had touched her. E.S. marked areas on the body representing the neck,

shoulders, back, legs, and buttocks. Wiles also stated that she had asked E.S. whether

appellant had hurt her while touching her. Wiles explained that she asked the question "to

determine if at any point [E.S.] might need a medical evaluation."

{¶ 30} Appellant argues that E.S.'s drawings and statements made to Wiles were

inadmissible hearsay, and that their admission violated his constitutional rights under the

Confrontation Clause.

{¶ 31} At the outset, hearsay is defined as "a statement, other than one made by the

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

matter asserted." Evid.R. 801(C). Hearsay is generally not admissible unless an exception

applies. Evid.R. 802. Evid.R. 803(4) provides an exception to the hearsay rule as follows:

Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent
to diagnosis or treatment.

{¶ 32} Hearsay statements made to a social worker may be admissible if they are

made for purposes of medical diagnosis or treatment. See State v. Muttart, 116 Ohio St.3d

5, 2007-Ohio-5267.

{¶ 33} In State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, the Ohio Supreme

Court recently considered the admissibility of statements given during interviews at child

advocacy centers. Arnold noted that these types of interviews seek to elicit two types of

statements, to wit: statements for the purposes of medical diagnosis and treatment, and

forensic statements. Id. at ¶ 33. Arnold focused on the admissibility of these statements

under the Confrontation Clause, rather than Evid.R. 803(4). Id.

{¶ 34} Arnold held that, to the extent this evidence is obtained to assist police in a

"forensic investigation" of abuse, it is "testimonial," and is therefore barred by the
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Confrontation Clause. Id. at ¶ 36. However, to the extent that the evidence is obtained to

medically diagnose and treat a child, the evidence is "nontestimonial" and is not barred from

admission at trial. Id. at ¶ 41.

{¶ 35} Arnold went on to identify which of the child-victim's statements to the

interviewer in that case were necessary for medical diagnosis. These included the child's

statements regarding the identity of the perpetrator, the type of abuse alleged, the time frame

of the alleged abuse, and the identification of the areas where the child had been touched.

Id. at ¶ 32, 38.

{¶ 36} On the other hand, the court determined that statements such as the child's

assertion that the offender shut and locked the door before raping her, the child's description

of where others were in the house at the time of the rape, the child's statement that the

offender removed her underwear, and the child's description of the offender's boxer shorts,

were statements relating primarily to the investigation, and therefore, were prohibited by the

Confrontation Clause.

{¶ 37} Initially, we note that we are not presented with a Confrontation Clause issue,

because E.S. testified at trial and was subject to cross-examination. See State v. Rose, 12th

Dist. No. CA2011-11-214, 2012-Ohio-5607, ¶ 47 (noting that when the child-victim was

present at trial and subject to cross-examination, the Confrontation Clause presented no

constraints on the state's use of the child's prior statements to a SANE nurse examiner).

Nevertheless, we find that Arnold compels the conclusion that E.S.'s statements to Wiles

were for purposes of medical diagnosis and treatment, thus they were admissible under

Evid.R. 803(4). This includes the portion of the interview when E.S. used an anatomically

correct drawing to identify the areas where appellant touched her. Arnold, 2010-Ohio-2742

at ¶ 38; State v. Edinger, 10th Dist. No. 05AP-31, 2006-Ohio-1527, ¶ 78 (purpose of social

worker's interview was for medical diagnosis or treatment, where the documents prepared
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relative to the child-victim's interview included a narrative of the interview, a family tree chart,

a medical form, and anatomically correct drawings that the child used to indicate the areas of

sexual contact); State v. Barnes, 12th Dist. No. CA84-05-041, 1985 WL 8654 (Apr. 8, 1985)

(recognizing a doctor's testimony that "anatomically correct dolls are accepted as a valid

diagnostic tool within the medical community"). We also find that, consistent with Wiles'

testimony, her question as to whether appellant had hurt E.S. when he touched her was

asked for the purpose of medical diagnosis or treatment. See State v. Romo, 9th Dist. No.

09CA009647, 2010-Ohio-4067, ¶ 18 (child-victim's testimony that appellant had "put his

finger inside [her] pee-pee and it hurt" was for the purpose of medical diagnosis or

treatment).

{¶ 38} Lastly, we note that even if the admission of Wiles' testimony was error, such

error was harmless, as Wiles' testimony regarding the areas that appellant touched E.S. was

cumulative to E.S.'s testimony. State v. Kelley, 12th Dist. No. CA95-07-073, 1996 WL

31154, * 3 (Jan. 29, 1996) ("[t]he admission of hearsay evidence is harmless error where it is

merely cumulative"); In re Puckett, 12th Dist. No. CA2000-10-203, 2001 WL 1081359 (Sept.

17, 2001).

{¶ 39} Accordingly, we reject appellant's challenge to the admissibility of E.S.'s

statements to Wiles.

{¶ 40} Appellant also challenges the testimony of Tina Pocock, an employee for

Children's Protective Services of Clermont County, who interviewed E.S. several days after

E.S. disclosed the abuse. Pocock testified that during the interview, E.S. was "quiet," but

was able to answer her questions, and that E.S. "responded appropriately." Pocock also

testified that after the interview, she spoke with E.S.'s mother, L.S., to obtain any information

that E.S. might have told her. The state then asked Pocock: "Anything about what [L.S.] told

you that surprised you?" Pocock responded: "No. Pretty much everything that [L.S.] told me
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was what [E.S.] had pretty much disclosed."

{¶ 41} Appellant claims that Pocock's testimony constituted inadmissible hearsay

under Arnold. We find that Arnold has no application to Pocock's testimony. Arnold prohibits

a social worker from testifying at trial as to what the victim said during the interview in a

forensic context. Here, Pocock did not testify to any statements made by E.S., nor did she

relay any details of E.S.'s disclosure to L.S. As such, Arnold would not bar Pocock's

testimony.

{¶ 42} Appellant also contends that Wiles' and Pocock's testimonies constituted

improper bolstering of E.S.'s credibility. Again, we disagree.

{¶ 43} The Ohio Supreme Court has held that, in child sexual abuse cases, an expert

may not give his or her opinion as to the child's veracity. State v. Boston, 46 Ohio St.3d 108

(1989) (overruled on other grounds). Here, neither Wiles nor Pocock expressed any opinion

as to E.S.'s veracity. Neither witness stated that E.S. was telling the truth, or that E.S.'s

statements were credible, believable, honest, or accurate. See State v. Smelcer, 89 Ohio

App.3d 115 (8th Dist.1993). See also State v. Sibert, 98 Ohio App.3d 412, 428 (4th

Dist.1994) ("[t]estimony that the children exhibit reactions to anatomically correct dolls and

various tests which are consistent with allegations of sexual abuse does not amount to

improper testimony about the victims' veracity").

{¶ 44} In addition, based on our plain error standard of review, we cannot say that,

absent this testimony, the case would have been decided differently. See State v. Crum, 5th

Dist. No. 97-CA-0134, 1998 WL 818055, * 15 (Oct. 26, 1998). Here, E.S. testified and was

subject to cross-examination. The jury was therefore able to witness her demeanor and

judge her credibility independent of Wiles' and Pocock's testimonies. See State v.

Cappadonia, 12th Dist. No. CA2008-11-138, 2010-Ohio-494, ¶ 37.

{¶ 45} Next, Appellant argues that the prosecutor engaged in prosecutorial misconduct
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by referring to Wiles' and Pocock's testimonies during her closing argument to bolster E.S.'s

credibility. Because appellant failed to object to this claimed instance of prosecutorial

misconduct, he has waived all but plain error. Id. at ¶ 40; Lloyd, 2008-Ohio-3383 at ¶ 13.

{¶ 46} In order to determine whether a prosecutor's remarks constitute misconduct, a

court must consider the following: (1) whether the remarks were improper, and, if so, (2)

whether the remarks prejudicially affected a defendant's substantial rights. Cappadonia,

2010-Ohio-494 at ¶ 41. "To demonstrate prejudice, a defendant must show that the

improper remarks or questions were so prejudicial that the outcome of the trial would clearly

have been otherwise had they not occurred." Id., quoting State v. Jones, 12th Dist. No.

CA2006-11-298, 2008-Ohio-865, ¶ 21. In reviewing allegations of prosecutorial misconduct,

it is the duty of this court to consider the conduct complained of in the context of the entire

trial. Cappadonia at ¶ 41; State v. Waters, 12th Dist. No. CA2002-11-266, 2003-Ohio-5871,

¶ 23. The touchstone of the analysis is the fairness of the trial, not the culpability of the

prosecutor. State v. Lott, 51 Ohio St.3d 160, 166 (1990). The Ohio Supreme Court has held

that prosecutorial misconduct is not grounds for error unless the defendant has been denied

a fair trial. State v. Maurer, 15 Ohio St.3d 239, 266 (1984). See also State v. Ghee, 12th

Dist. No. CA2008-08-017, 2009-Ohio-2630, ¶ 42.

{¶ 47} Initially, we observe that the jury was instructed that the statements made

during closing arguments were not evidence. We must therefore presume that the jury

followed the trial court's instructions. State v. Bell, 12th Dist. No. CA2008-05-044, 2009-

Ohio-2335, ¶ 85.

{¶ 48} Appellant directs us to the following statements made by the prosecutor during

her closing argument:

We also have to show you that's obviously what happened to
E.S. * * * [a]nd that's a little something too that I really want to
touch on because her credibility is what we are talking about. * *
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* [S]he has been consistent when it comes to how he touched
her in that master bedroom. * * * It was the same story that she
told her mom. And we know because when she talked to Tina
Pocock, the case worker from Clermont County that's what she
told Tina. And when Tina conferred with the mother, there were
no details that were different. And then little [E.S.] had to go to
the Child Advocacy Center and she told the same story to
Teresa Wiles.

{¶ 49} Appellant contends that the prosecutor's remarks constituted prejudicial

misconduct sufficient for reversal of his conviction. This argument lacks merit.

{¶ 50} We have previously held that in closing argument, a prosecutor may comment

freely on "what the evidence has shown, and what reasonable inferences may be drawn

therefrom." State v. Paluga, 12th Dist. No. CA2002-02-041, 2002-Ohio-6876, ¶ 31, quoting

Lott, 51 Ohio St.3d at 165. Here, the prosecutor simply summarized the testimony that was

offered by Wiles and Pocock during trial. Accordingly, we find no plain error or prejudice

stemming from the prosecutor's statements.

{¶ 51} Appellant's second assignment of error is overruled.

{¶ 52} Assignment of Error No. 3:

{¶ 53} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT

GRANTING APPELLANT'S MOTION FOR A NEW TRIAL.

{¶ 54} Appellant next claims that, in light of the trial court's finding that Counts Two

and Three of the indictment were not based on sufficiently distinguishable acts, the court

erred in allowing the prosecutor to comment during closing argument about multiple acts of

sexual misconduct within Count One. Appellant claims that the trial court committed plain

error when it failed to "admonish the [s]tate and provide the jury with a cautionary instruction"

in response to the following comments:

[E.S.] said that I think five times is a lot and I would submit that is
probably the understatement of the year for that child, especially
for a ten year old. * * * I'm going to start off with you're going to
have one count of gross sexual imposition to decide. And that's
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going to encompass everything that happened in the master
bedroom during the time period at the Lebanon house, just one
count, and that will encompass all those same acts that
happened.

{¶ 60} Upon review, we find that the prosecutor's remarks were within the permissible

range of comments on the testimony adduced at trial and the reasonable inferences to be

drawn therefrom, and therefore there was no need for a cautionary instruction by the trial

court. Paluga, 2002-Ohio-6876 at ¶ 31. At trial, E.S. testified that appellant would lay her

down on his bed, pull down her underwear, and rub and squeeze her buttocks. At first, E.S.

testified that appellant had rubbed her buttocks three times, and that the incidents occurred

both in her bedroom and appellant's bedroom. However, E.S. subsequently testified that she

did not recall appellant rubbing her buttocks in her bedroom, but that she knew it happened

in appellant's bedroom. E.S. also stated that, "every time that [appellant] would take me into

his room or something he would usually rub my butt," and that to the best of her knowledge,

this occurred "probably about five or six [times] * * *." In light of this testimony, we find that

the prosecutor simply commented on, and summarized, E.S.'s statements during trial, and

therefore no prejudice occurred during closing argument. As such, the trial court did not

commit plain error when it did not provide a cautionary instruction on the prosecutor's

statements.

{¶ 61} Next, appellant argues that the trial court erred in allowing E.S. to testify about

incidents of sexual misconduct that may have occurred in her bedroom, rather than

appellant's. Appellant maintains that E.S.'s testimony was prejudicial and inconsistent with

the bill of particulars and the prosecutor's opening statement, which both declared that the

sexual misconduct only occurred in appellant's bedroom. It would appear that appellant is

asserting a due process challenge, i.e., that he was denied the opportunity to defend himself

on the basis of his conduct that occurred outside of his bedroom.

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{¶ 62} During her opening statement, the prosecutor stated, "it was a lot of times the

same way, and it almost always happened in [appellant's] bedroom." Additionally, in the bill

of particulars, Count One stated: "On or about the time period of May, 2010, through August

16, 2011, while both the victim and defendant were in the Defendant's bedroom * * * the

Defendant did have sexual contact, to wit: rubbing the victim's buttocks * * *."

{¶ 63} Appellant certainly has a due process right to be informed of the specific

charges against him so that he may formulate a proper defense. However, upon review, we

find that the omissions in the bill of particulars and the prosecutor's opening statement

regarding the sexual misconduct in E.S.'s bedroom did not prejudice his defense and were

without constitutional consequences.

{¶ 64} "A bill of particulars is designed to provide the accused, upon proper demand,

with greater detail concerning the nature of the offense charged and of the criminal conduct

alleged to constitute the offense." State v. Ray, 12th Dist. No. CA2009-06-022, 2010-Ohio-

2434, ¶ 13. "[A] bill of particulars is not designed to provide the accused with specifications

of evidence or to serve as a substitute for discovery." Id.; State v. Wilson, 29 Ohio St.2d 203,

206-207 (1972). However, an accused's right to due process and a fair trial may compel the

disclosure of additional known information in a bill of particulars "if the absence of specifics

truly prejudices the accused's ability to defend himself." State v. Sellards, 17 Ohio St.3d 169,

172 (1985).

{¶ 65} Here, the absence of the added detail that appellant may have touched E.S.'s

buttocks in another bedroom in the same home did not truly prejudice his ability to defend

himself. What additional defense could appellant have set forth if it was specified that the

acts occurred in a second bedroom? Appellant's defense strategy centered on his claim that

he never engaged in sexual conduct with E.S., regardless of where, i.e., in which bedroom,

the abuse allegedly occurred. Thus, we find that neither the bill of particulars nor the
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prosecutor's opening statement surprised, misled, or prevented appellant from preparing for

trial. See State v. Bell, 112 Ohio App.3d 473, 480 (3d Dist.1996) (failure to specify which

room inside a barn the sexual acts occurred was "immaterial to the conduct charged and was

unnecessary to any theory of defense alleged by [the defendant]").

{¶ 66} Lastly, appellant claims that he was prejudiced by the admission of E.S.'s

testimony that appellant had told her that his buttocks was his "favorite place to be rubbed

too," as this statement was not provided to him in discovery.

{¶ 67} The state's failure to provide discovery will not amount to reversible error unless

there is a demonstration that the failure to disclose was a willful violation of Crim.R. 16, that

prior knowledge of the statement would have benefited the accused in the preparation of his

defense, or that the accused was prejudiced by admission of the statement. State v. Vinson,

70 Ohio App.3d 391, 399 (12th Dist.1990), citing State v. Moore, 40 Ohio St.3d 63, 66,

(1988).

{¶ 68} There is nothing in the record below to indicate that the state's failure to

disclose appellant's statement was a willful violation of Crim.R. 16, or anything other than a

negligent omission on its part. See State v. Parson, 6 Ohio St.3d 442, 445 (1983).

Secondly, appellant has not demonstrated, or even alleged, how foreknowledge of the

undisclosed statement would have benefited him in the preparation of his defense. Id.

Finally, appellant has not set forth any articulable argument as to how the admission of his

statement to E.S. prejudiced him.

{¶ 69} Accordingly, appellant's third assignment of error is overruled.

{¶ 70} Assignment of Error No. 4:

{¶ 71} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR

GOES AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN

APPELLANT'S CONVICTIONS.
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{¶ 72} In his fourth and final assignment of error, appellant claims that his conviction

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

evidence.

{¶ 73} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would support a conviction. State v. Roark, 12th Dist. No. CA2012-04-036, 2013-

Ohio-217, ¶ 45, citing State v. Alkire, 12th Dist. No. CA2008-09-023, 2009-Ohio-2813, ¶ 51.

"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." Alkire at ¶ 51.

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

evidence, the court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of the witnesses and determines whether in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. Roark,

2013-Ohio-217 at ¶ 46.

{¶ 75} "Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency." Id. at ¶ 47, quoting State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-

2298, ¶ 35. "Thus, a determination that a conviction is supported by the weight of the

evidence will also be dispositive of the issue of sufficiency." Wilson at ¶ 35.

{¶ 76} In the case at bar, appellant was charged with gross sexual imposition in

violation of R.C. 2907.05(A)(4), which states:

(A) No 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; or cause two
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or more other persons to have sexual contact when any of the
following applies:

***

(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age
of that person.

{¶ 78} "Sexual contact" means "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). The trier of fact may infer a purpose of sexual arousal or gratification from the

type, nature and circumstances of the contact, along with the personality of the defendant.

State v. Barnes, 12th Dist. No. CA2010-06-009, 2011-Ohio-5226, ¶ 88. If the trier of fact

determines that the defendant was motivated by desires of sexual arousal or gratification,

and that the contact occurred, then the trier of fact may conclude that the object of the

defendant's motivation was achieved. Id.

{¶ 79} First, it is not disputed that E.S. was under the age of 13 during the indictment

period. Further, E.S. testified that, on more than one occasion at their home in Lebanon,

Ohio, appellant laid her down "face first" on his bed, pulled down her pants and her

underwear, and touched her buttocks. E.S. explained that appellant would use both hands to

rub her buttocks, and that he would squeeze her buttocks several times.

{¶ 80} Based upon this testimony, there was clearly evidence of sexual contact.

Further, we find that the jury could have reasonably inferred that appellant's actions of

rubbing and squeezing E.S.'s buttocks were made for the purpose of sexually arousing or

gratifying himself.

{¶ 81} Appellant claims, however, that his conviction must be reversed on manifest

weight and sufficiency grounds because E.S. did not provide consistent testimony. Appellant

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contends that E.S.'s recollection of the rooms in which the sexual contact occurred varied

throughout trial, as did her recollection of the number of times the conduct occurred.

{¶ 82} Appellant's assertion does not amount to a finding that the jury clearly lost its

way in finding him guilty of the offense charged. E.S.'s testimony, although imprecise at

times, was clear in relaying that more than one incident occurred during which appellant laid

her down on his bed, removed her underwear, and rubbed her buttocks.

{¶ 83} Appellant also attack's E.S.'s credibility and argues that, for various reasons,

E.S. may have fabricated the story to get attention from her family. As evidence of

fabrication, appellant cites E.S.'s testimony that she wanted to be a singer, dancer, actress,

or someone famous. Appellant also points to E.S.'s testimony that she felt "good" about

herself for disclosing the abuse, and that her family told her that she was a "hero." Lastly,

appellant directs our attention to E.S.'s testimony describing a time when a television show

was taped at her house, and her statements that she did not enjoy the lack of attention being

paid to her during filming.

{¶ 84} Although a reviewing court considers the weight of the evidence and the

credibility of the witnesses, "that review must nevertheless be tempered by the principle that

weight and credibility are primarily for the trier of fact," as the trier of fact is in the best

position to "view the witnesses and observe their demeanor, gestures and voice inflections,

and use these observations in weighing the credibility of the proffered testimony." State v.

Wells, 12th Dist. No. CA2005-04-050, 2006-Ohio-874, ¶ 21, quoting State v. Kash, 12th Dist.

No. CA2002-10-247, 2004-Ohio-415, ¶ 25. We have previously recognized that this is

especially true with regard to child victims of sexual abuse. Wells at ¶ 21. Additionally, Ohio

courts have consistently recognized that the testimony of a victim in sexual assault cases, if

believed, is sufficient to prove the elements of sex offenses. Id., citing State v. Banks, 71

Ohio App.3d 214 (3d Dist.1991).
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{¶ 85} As discussed above, E.S. testified to a series of events, which, if believed,

would support a finding that appellant committed gross sexual imposition. We cannot say

that, in believing E.S.'s testimony, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. Roark,

2013-Ohio-217 at ¶ 46.

{¶ 86} Appellant's fourth assignment of error is overruled.

{¶ 87} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

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