[Cite as State v. L.E.F., 2014-Ohio-4585.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 13AP-1042
(C.P.C. No. 12CR-09-4956)
v. :
L.E.F., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 16, 2014
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
appellee.
W. Joseph Edwards, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} L.E.F., defendant-appellant, appeals from the judgment of the Franklin
County Court of Common Pleas in which the court found him guilty, pursuant to a jury
trial, of 4 counts of rape, with specifications, which are violations of R.C. 2907.02 and
first-degree felonies, and guilty of 13 counts of gross sexual imposition ("GSI"), which are
violations of R.C. 2907.05 and third-degree felonies.
{¶ 2} Appellant was married to a woman who had a daughter, J.H. Between
January 2006 and October 2011, appellant engaged in sexual activity with J.H. After J.H.
told a friend and then a school counselor about appellant's conduct, appellant was
charged with 33 total counts of rape and GSI.
No. 13AP-1042 2
{¶ 3} On October 8, 2013, a jury trial commenced, and during the course of the
trial, plaintiff-appellee, State of Ohio, dismissed several counts of rape and GSI. The jury
eventually returned a verdict of guilty as to 4 counts of rape and 13 counts of GSI, and not
guilty as to 1 count of rape and 2 counts of GSI. On December 2, 2013, the trial court
issued a judgment entry in which it found appellant guilty, pursuant to the jury's verdict,
found him to be a sexual predator, and sentenced him to life in prison without parole.
Appellant appeals the judgment, asserting the following assignments of error:
I. THE TRIAL COURT ERRED WHEN IT WHEN IT [sic]
ADMITTED OVER OBJECTION THE VIDEO-TAPED
STATEMENT OF J.H. THAT WAS TAKEN BY SOCIAL
WORKER WESTGATE IN VIOLATION OF OHIO EVID.R.
803(4) THEREBY DENYING APPELLANT OF HIS RIGHT
TO A FAIR TRIAL UNDER THE OHIO AND FEDERAL
CONSTITUTIONS.
II. THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE APPELLANT WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION AND WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT DEPRIVED APPELLANT OF HIS
STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND A FAIR TRIAL WHEN IT ALLOWED
NURSE HORNER TO TESTIFY AS TO THE VERACITY OF
THE CHILD WITNESS IN THIS MATTER.
{¶ 4} Appellant argues in his first assignment of error that the trial court erred
when it admitted into evidence the videotaped statement of J.H. that was filmed during
the interview with Jennifer Westgate, a social worker and medical forensic interviewer at
the Center for Family Safety and Healing ("child advocacy center") at Nationwide
Children's Hospital. "Ordinarily, a trial court is vested with broad discretion in
determining the admissibility of evidence in any particular case, so long as such discretion
is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty., 58 Ohio
St.3d 269, 271 (1991). Likewise, the admission of videotape evidence is a matter of
discretion for the trial court. Reinoehl v. Trinity Universal Ins. Co., 130 Ohio App.3d 186,
195 (10th Dist.1998). An appellate court's review of the admission of evidence is limited to
No. 13AP-1042 3
a determination as to whether the trial court abused its discretion. Id. An abuse of
discretion connotes more than a mere error in judgment, it implies that the trial court's
decision was arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
{¶ 5} In the present case, appellant contends that the statements J.H. made to
Westgate in the videotaped interview were not made for the purposes of medical
diagnosis or treatment and, therefore, were hearsay that did not fall within the hearsay
exception under Evid.R. 803(4). Hearsay is "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). Pursuant to Evid.R. 802, hearsay is inadmissible
unless it falls within an exception provided by the rules of evidence.
{¶ 6} Evid.R. 803(4) allows, as an exception to the hearsay rule, the admission of
"[s]tatements 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." Thus, "[w]hen examining the admissibility of hearsay statements
under Evid.R. 803(4), the primary inquiry is whether the statements were made for the
purposes of medical diagnosis or treatment, as opposed to some other purpose." Fields v.
CSX Transp., Inc., 197 Ohio App.3d 561, 2011-Ohio-6761, ¶ 17 (8th Dist.). As stated by the
Supreme Court of Ohio, "[t]he test under Evid.R. 803(4) goes solely to whether a
statement was made for purposes of medical diagnosis or treatment. If a statement is
made for purposes of diagnosis or treatment, it is admissible pursuant to Evid.R. 803(4)."
(Emphasis sic.) State v. Dever, 64 Ohio St.3d 401, 414 (1992).
{¶ 7} Here, appellant claims that the statements made by J.H. in the videotape
were not for purposes of medical diagnosis but for the criminal investigation of the sexual
assaults. Appellant points out that the interview was scheduled by the Reynoldsburg
Police Department, no medical purpose existed for the interview, and the videotape was
made solely for use at trial.
{¶ 8} Westgate testified that when a child comes into the center, the center asks
the child's medical background and gets the child's weight, height, and temperature.
Westgate said that at every interview of a child, either a physician or nurse practitioner
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observes the interview, and she always meets with the physician or nurse immediately
following the interview to discuss the matter. Westgate also testified that the interview
guides the course of the medical exam, which immediately follows the interview. After the
medical exam, the physician then meets with the child's caregiver. The written summary
of the interview becomes part of the child's permanent medical record. Westgate also
agreed with appellant's counsel on cross-examination that her primary purpose in
conducting interviews is to obtain information for the purposes of medical diagnosis or
treatment.
{¶ 9} In State v. [M.A.], 126 Ohio St.3d 290, 2010-Ohio-2742 ("M.A."), the
Supreme Court of Ohio held Evid.R. 803(4) was limited to information necessary for the
diagnosis and treatment of injuries. The victim in M.A., who was the defendant's four-
year-old daughter, was interviewed by a medical forensic interviewer at the same child
advocacy center as in the present case. At trial, the child did not testify, but the court
admitted the child's recorded interview from the center. We upheld the admission of the
child's interview in State v. [M.A.], 10th Dist. No. 07AP-789, 2008-Ohio-3471. On appeal,
the Supreme Court addressed whether, in a criminal prosecution, out-of-court statements
made by a child to an interviewer employed by a child advocacy center violates the right to
confront witnesses provided by the Sixth Amendment's Confrontation Clause and the
Ohio Constitution. The court found that the objective of a child advocacy center was
neither exclusively medical diagnosis and treatment nor solely forensic investigation. See
M.A. at ¶ 29. The court held that statements made to interviewers at child advocacy
centers that are made for the purposes of medical diagnosis and treatment are non-
testimonial and, therefore, admissible without offending the Confrontation Clause. Id. at
¶ 2. The court further held that statements made to interviewers at child advocacy centers
that serve primarily a forensic or investigative purpose are testimonial and, therefore,
inadmissible pursuant to the Confrontation Clause. Id.
{¶ 10} The court in M.A. then analyzed specific statements to determine whether
they primarily served a forensic or investigative purpose or whether the statements
provided information necessary to diagnose and provide medical treatment. The court
determined that statements relating to the identity of the perpetrator, the type of abuse
alleged, the identification of the body parts of the victim and the perpetrator involved, and
No. 13AP-1042 5
the time frame of the abuse were statements for medical diagnosis and treatment because
that information allowed the doctor or nurse to determine whether to test the child for
sexually transmitted diseases and to identify any trauma or injury sustained during the
alleged abuse. Id. at ¶ 32, 38. The court then determined that the child's statement that
the offender shut and locked the door before the rape, 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 related primarily to the investigation, and, therefore, such statements were
prohibited by the Confrontation Clause. Accordingly, the court affirmed in part and
reversed in part the judgment of this court and remanded the matter for a determination
of whether the erroneous admission of forensic statements was harmless error. On
remand, this court concluded the admission of the challenged evidence was harmless
because the statements were cumulative of other evidence properly admitted, and
overwhelming evidence other than the challenged statements supported the guilty
verdicts. State v. [M.A.], 10th Dist. No. 07AP-789, 2010-Ohio-5622 ("M.A. II"), appeal
denied, 128 Ohio St.3d 1426, 2011-Ohio-1049.
{¶ 11} In the present case, because J.H. testified at trial and was subject to cross-
examination, we are not presented with a Confrontation Clause issue. Thus, M.A. has
limited application. See State v. Simms, 10th Dist. No. 10AP-1063, 2012-Ohio-2321, ¶ 42,
citing State v. Rucker, 1st Dist. No. C-110082, 2012-Ohio-185, ¶ 37 (M.A. has limited
application when victim testified at trial and was subject to cross-examination). See also
In re C.S., 10th Dist. No. 11AP-667, 2012-Ohio-2988, ¶ 19, citing Simms (same). However,
pursuant to M.A., we must still examine J.H.'s statements made during the recorded
interview at the child advocacy center and determine whether they were inadmissible
because they were for forensic purposes or admissible because they were for purposes of
medical diagnosis and treatment.
{¶ 12} In his brief, appellant does not cite any specific statements made by J.H. in
her interview. Nevertheless, our review of the interview reveals that the majority of the
statements that J.H. made were for purposes of medical diagnosis and treatment and,
therefore, admissible. J.H. stated how many times the abuse occurred, how old she was
when the abuse occurred, and how and where appellant ejaculated. She also stated that
No. 13AP-1042 6
appellant watched her in the shower, forced her to suck his "ding-a-ling" and "wiener,"
did embarrassing things to her that made her feel weird, put his hands down her pants
and rubbed her private parts, forced her to rub his "ding-a-ling," rubbed her both inside
and outside her skin, rubbed her buttocks, squeezed her breasts to check how large they
were getting, and checked J.H.'s private parts to see if she was growing hair, but he never
put his private parts inside of her. (Tr. Vol. III, 251.) These statements were for the
purposes of medical diagnosis and treatment and, thus, admissible. See M.A. at ¶ 32, 38
(the court classified information regarding the identity of the perpetrator, the type of
abuse alleged, the identification of the areas where the child had been touched and the
body parts of the perpetrator that had touched her, and the time frame of the abuse, as
statements for diagnosis and treatment because that information allowed the doctor or
nurse to determine whether to test the child for sexually transmitted diseases, and to
identify any trauma or injury sustained during the alleged abuse); Simms at ¶ 40, citing In
re J.M., 4th Dist. No. 08CA782, 2011-Ohio-3377, ¶ 39 (child's statement that the offender
"rubbed his pee-pee all over my face and then put his pee-pee in my butt," as well as her
statements that "her butt hurt" and that the incident had occurred that day were
statements made for medical diagnosis and treatment and, therefore, were non-
testimonial and admissible); State v. Dorsey, 5th Dist. No. 11 CA 39, 2012-Ohio-611, ¶ 24-
28 (victim's statements describing forms of sexual activity, such as statements explaining
that the offender grabbed her, hugged her, grabbed her breast and vagina, got on top of
her, and put his penis in her vagina, would cause a medical professional to be concerned
about possible injuries and sexually transmitted diseases; such statements were not
testimonial and were for medical diagnosis and treatment); and In re T.L., 9th Dist. No.
09CA0018-M, 2011-Ohio-4709, ¶ 14-22 (statements that the perpetrator touched the
child's vagina with his fingers under her underwear and also inside her vagina were for
purposes of medical diagnosis and treatment and, therefore, admissible).
{¶ 13} Our review of the interview also reveals several statements that J.H. made
that were mainly for forensic purposes and, therefore, inadmissible. J.H. stated that
appellant was mean to her and yelled at her, they watched "romance shows" together
prior to the abuse, she and appellant were sitting on the couch when the abuse occurred,
and her mother watched appellant check J.H.'s breasts and private parts to see how she
No. 13AP-1042 7
was developing. (Tr. Vol. IV, 450-51.) J.H. also described whom she told about the abuse,
the houses and rooms in which the abuse occurred, and the locations of others who were
in the house when the abuse occurred. Courts have found similar statements were for
forensic purposes. See M.A. at ¶ 34-37 (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
related primarily to the investigation and, therefore, such statements were prohibited);
Simms at ¶ 40 (victim's statement to advocacy center about the location where the events
occurred was for purposes of criminal investigation); C.S. at ¶ 21 (what appellant was
doing on the computer, what appellant was wearing, whether the grandmother was in the
room, and the direction the girls were lying in the bed were not potentially pertinent to
medical diagnosis or treatment); State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094,
¶ 23 (interview statements that defendant took child abuse victim into a separate room or
locked her inside his bedroom when he touched her, as well as how defendant became
mean toward victim, were not necessary for medical diagnosis and treatment); J.M. at
¶ 40 (statements describing that the defendant talked mean to child victim, that the
incident happened in defendant's room, that the defendant showed victim materials with
"nasty" stuff of boys and girls, and who was present at the time of the incident, all served a
forensic or investigative purpose).
{¶ 14} However, we find that any error that may have occurred by the admission of
these statements was harmless, as such statements were cumulative of other, properly
admitted testimony. See M.A. II (child abuse victim's improperly admitted statements to
child advocacy center were cumulative of other properly admitted testimony; thus, any
error in their admission was harmless). J.H. testified at trial about the incidents of abuse,
including that the abuse occurred in the living room on the couch, her mother was in bed
and her brothers were playing video games when the abuse happened, she first told her
friends and school counselor about the abuse, she was lying on the couch when the abuse
occurred, her mom was present when appellant squeezed her breasts to check their size to
see if she needed a training bra, and the abuse occurred while they were watching "love"
or "romance" shows on television. (Tr. Vol. IV, 450-51.) Accordingly, insofar as J.H.'s
No. 13AP-1042 8
statements may have been for forensic rather than medical purposes and improperly
admitted, we conclude such admission constitutes harmless error because the statements
were cumulative of J.H.'s live trial testimony, which was subject to cross-examination.
Accordingly, appellant's first assignment of error is overruled.
{¶ 15} Appellant argues in his second assignment of error that the trial court's
judgment was based on insufficient evidence and against the manifest weight of the
evidence. In reviewing a sufficiency of the evidence claim, the relevant inquiry is whether
any rational fact finder, viewing the evidence in a light most favorable to the state, could
have found all of the essential elements of the crime proven beyond a reasonable doubt.
State v. Jones, 90 Ohio St.3d 403, 417 (2000), citing Jackson v. Virginia, 443 U.S. 307,
319 (1979), and State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
Whether the evidence is legally sufficient is a question of law, not fact. State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997). On review for sufficiency, courts do not assess
whether the state's evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction. Id. at 390. In determining the sufficiency
of the evidence, an appellate court must give "full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson at 319. Consequently, a
verdict will not be disturbed based on insufficient evidence unless, after viewing the
evidence in a light most favorable to the prosecution, it is apparent that reasonable minds
could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d
460, 484 (2001); Jenks at 273.
{¶ 16} This court's function when reviewing the weight of the evidence is to
determine whether the greater amount of credible evidence supports the verdict.
Thompkins at 387. In order to undertake this review, we must sit as a "thirteenth juror"
and review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether the trier of fact clearly lost its way
and created a manifest miscarriage of justice. Id., citing State v. Martin, 20 Ohio App.3d
172, 175 (1st Dist.1983). If we find that the fact finder clearly lost its way, we must reverse
the conviction and order a new trial. Id. On the other hand, we will not reverse a
conviction so long as the state presented substantial evidence for a reasonable trier of fact
No. 13AP-1042 9
to conclude that all of the essential elements of the offense were established beyond a
reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 193-94 (1998).
{¶ 17} In addressing a manifest weight of the evidence argument, we are able to
consider the credibility of the witnesses. See Martin at 175. However, in conducting our
review, we are guided by the presumption that the jury, or the trial court in a bench trial,
is best able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Thus, a
reviewing court must defer to the factual findings of the jury, or judge in a bench trial,
regarding the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus. Concerning the issue of assessing witness credibility, the
general rule of law is that "[t]he choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not substitute its
own judgment for that of the finder of fact." State v. Awan, 22 Ohio St.3d 120, 123 (1986).
Indeed, the fact finder is free to believe all, part or none of the testimony of each witness
appearing before it. Hill v. Briggs, 111 Ohio App.3d 405, 412 (10th Dist.1996). If evidence
is susceptible to more than one construction, reviewing courts must give it the
interpretation that is consistent with the verdict and judgment. White v. Euclid Square
Mall, 107 Ohio App.3d 536, 539 (8th Dist.1995). Mere disagreement over the credibility of
witnesses is not sufficient reason to reverse a judgment. State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, ¶ 24.
{¶ 18} Here, the whole of appellant's argument is that "J.H.'s testimony was
lacking in credibility and specificity as to dates, locations, and acts to have a jury convict
him of the offenses." (Appellant's Brief, 13-14.) Appellant does not support his assertion
with any further argument or citation to the record.
{¶ 19} App.R. 16(A)(7) requires an appellant's brief to include the "contentions of
the appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and parts
of the record on which appellant relies." Further, App.R. 12(A)(2) provides that "[t]he
court may disregard an assignment of error presented for review if the party raising it fails
to identify in the record the error on which the assignment of error is based." It is not this
No. 13AP-1042 10
court's duty to search the record for evidence to support an appellant's argument as to
alleged error. Sherman v. Sherman, 10th Dist. No. 05AP-757, 2006-Ohio-2309, ¶ 15;
State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94 (10th Dist.). Based
on this authority set forth in the appellate rules, we decline to address appellant's
undeveloped argument under this assignment of error.
{¶ 20} We also note that appellant's argument only actually contends that the
conviction was based on insufficient evidence. However, under a sufficiency of the
evidence review, we do not engage in a determination of witness credibility; rather, we
assume the state's witnesses testified truthfully and determine if that testimony satisfies
each element of the crime. State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754,
¶ 4 (noting that "in a sufficiency of the evidence review, an appellate court does not
engage in a determination of witness credibility; rather, it essentially assumes the state's
witnesses testified truthfully and determines if that testimony satisfies each element of the
crime").
{¶ 21} Therefore, based on the above authorities and the absence of specific
arguments and citations to the record, we find the jury's verdict was not based on
insufficient evidence or against the manifest weight of the evidence. Accordingly,
appellant's second assignment of error is overruled.
{¶ 22} Appellant argues in his third assignment of error that the trial court erred
when it allowed Gail Horner, the pediatric nurse practitioner at the child advocacy center
who performed the physical examination on J.H., to testify as to the veracity of the victim,
J.H. In her trial testimony, when asked on direct examination on what she based her
diagnosis of child sexual abuse, Horner testified:
It was based on the history of sexual abuse given by [J.H.]
during her forensic interview coupled with the anogenital
examination findings. Even though the anogenital exam was a
normal or a nonspecific exam, she gave a good consistent
spontaneous history of sexual abuse in the forensic history.
(Tr. Vol. IV, 595-96.)
{¶ 23} Later, on cross-examination, defense counsel asked Horner the following:
Q. All right. Your diagnosis and opinion in this case is sexual
abuse. Now, that is – that opinion a based solely on the
No. 13AP-1042 11
history that you obtained or at least read about from [J.H.]
and talked to Ms. Westgate about?
A. Yes. It's based on the disclosure of sexual abuse that [J.H.]
gave during her forensic interview.
Q. And that opinion then assumes the accuracy of that
history? In other words that she is telling the truth?
A. Yes.
(Tr. Vol. IV, 623-24.)
{¶ 24} Trial counsel objected to Horner's direct-examination testimony on the
same basis asserted here. The trial court overruled the objection, finding:
Strictly speaking, that is not an affirmation of her credibility
here as a witness. I realize that's getting fairly close, but in all
conscience, if she doesn't go any farther than that, I cannot
sustain the objection because, after all, I think it would be fair
game.
If, for example, a child was all over the road in terms of
describing this, that, and the other, and it was totally
inconsistent with everything else, you wouldn't, obviously, be
able to cross-examine her on that.
So I do caution you that I do not want her affirming the
credibility of this witness, but to say that the history is good,
consistent, and spontaneous is fair game.
(Tr. Vol. IV, 598-99.)
{¶ 25} The court in In re W.P., 8th Dist. No. 84114, 2004-Ohio-6627, addressed a
similar argument and distinguished State v. Boston, 46 Ohio St.3d 108 (1989), which
appellant in the present case also cites in support of his argument. In W.P., the pediatric
nurse practitioner who conducted a physical examination of a child sexual-assault victim
testified that, although her physical exam of the victim revealed a normal external
anal/genital exam, based on the language the victim used to describe the incidents, the
victim's consistency of the details in telling the social worker and the expert witness, and
the victim's ability to describe the incidents in a narrative form, she did not find anything
No. 13AP-1042 12
that caused her to question the truthfulness of what the victim told her. The trial court
permitted the testimony. The child victim also testified at trial.
{¶ 26} On appeal, the defendant argued that the trial court erred in allowing the
nurse to testify as to the truthfulness of the victim. The court rejected the defendant's
reliance on Boston, in which the Supreme Court found it was error to allow an expert
witness to testify as to the veracity of a child sexual abuse victim's statements when the
expert gave her opinion that the child victim had not fantasized her abuse and was telling
the truth. Id. at 129. The appellate court found Boston was distinguishable because, unlike
in Boston, the victim in W.P. testified at trial, and the expert witness did not testify that
the victim was telling the truth. Instead, the expert witness testified that, based on her
observations of the language used by the victim in recounting what allegedly occurred and
the consistency of the details the victim was able to recall, she did not find anything that
caused her to question the truthfulness of what the victim told her. The court also held
that, with the victim's testimony, the juvenile court was able to ascertain the credibility of
the victim; whereas, in Boston, there was no independent indicia of reliability save for the
expert witness who vouched for the child victim.
{¶ 27} In the present case, Horner stated that her opinion was based on J.H.'s
"good consistent spontaneous history of sexual abuse in the forensic history." (Tr. Vol. IV,
596.) This statement by Horner on direct examination was not the rendering of an expert
opinion concerning the veracity of the victim but an explanation of the basis for her
diagnosis of sexual abuse. Witnesses involved in the examination of a sexual abuse victim
may comment on the consistency of the victim's statements. See In re D.D., 8th Dist. No.
89042, 2008-Ohio-222 (nurse may testify regarding the consistency of the details
remembered by the victim); State v. Demiduk, 7th Dist. No. 96-C0-16 (June 24, 1998)
(physician's observation that the alleged victim was consistent was simply a factor
physician considered in making her analysis and was not improper testimony to the
alleged victim's veracity). Therefore, we find no error in admitting this testimony.
{¶ 28} Likewise, Horner's testimony on cross-examination was not an expert
opinion of the victim's veracity. Horner's statement was only that her opinion was based
on the assumption that J.H.'s history was accurate. Again, Horner's cross-examination
testimony was explaining the basis for her diagnosis, which is permissible. See State v.
No. 13AP-1042 13
Harvey, 5th Dist. No. 13-CA-109, 2014-Ohio-2683, ¶ 17 (testimony of pediatric nurse
practitioner that her diagnosis of sexual abuse was made based on the child's history did
not express any opinion that child was telling the truth but related to her medical
diagnosis as a result of the examination); State v. Cappadonia, 12th Dist. No. CA2008-11-
138, 2010-Ohio-494, ¶ 17, citing State v. France, 9th Dist. No. 15198 (Mar. 4, 1992), citing
Boston at 128 (Boston does not prohibit an expert from giving an opinion as to whether a
child has been sexually abused where that opinion is based on the expert's medical
examination of the victim, even if there was no physical evidence of abuse, and the
victim's history). In both of the statements, Horner was testifying as to what led to her
ultimate disposition of sexual abuse, which is proper. State v. Smelcer, 89 Ohio App.3d
115 (8th Dist.1993) (expert witnesses are permitted to testify to their disposition in a
sexual abuse case).
{¶ 29} In addition, insofar as appellant suggests that Horner's testimony could
only be interpreted by the jury as vouching for the veracity of J.H., "[o]nly statements
directly supporting the veracity of a child witness are prohibited under Boston." State v.
Cashin, 10th Dist. No. 09AP-367, 2009-Ohio-6419, ¶ 20, citing State v. Rosas, 2d Dist.
No. 22424, 2009-Ohio-1404, fn. 1. "[I]ndirect bolstering of a victim's credibility is not the
same as the direct rendering of an opinion as to a victim's veracity that was involved in
Boston." Id. See also Rosas at fn. 1, citing Boston at 132, fn. 21 (Patton, J., dissenting)
(finding that while experts may testify that it is their opinion that a child has been abused,
and such opinions implicitly assert a belief in the child's story, such an opinion is only an
indirect comment on truthfulness and is, therefore, admissible). Furthermore, J.H.
testified at trial and the jury was able to independently ascertain the credibility of the
victim. For all the foregoing reasons, we find the trial court did not err when it allowed
Horner's testimony, and appellant's third assignment of error is overruled.
{¶ 30} Accordingly, appellant's three assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.
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