In re S.H.W.

[Cite as In re S.H.W., 2016-Ohio-841.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

IN THE MATTER OF: S.H.W. :
:
: C.A. CASE NO. 2015-CA-25
:
: T.C. NO. D44918
:
: (Civil appeal from Common
: Pleas Court, Juvenile Division)
:
:

...........

OPINION

Rendered on the ___4th___ day of _____March_____, 2016.

...........

NATHANIEL R. LUKEN, Atty, Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio45385
Attorney for Plaintiff-Appellee

MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 W. Second Street, Suite 2103,
Dayton, Ohio 45402
Attorney for Defendant-Appellant

.............

DONOVAN, P.J.

{¶ 1} Juvenile-appellant S.H.W. appeals his adjudication of delinquency for one

count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree if committed

by an adult; and two counts of gross sexual imposition (GSI), in violation of R.C.

2907.05(A)(4), both felonies of the third degree if committed by an adult. S.H.W. filed a
 -2-

timely notice of appeal with this Court on April 23, 2015.

{¶ 2} The events which form the basis for the instant appeal occurred on or about

the evening of May 14, 2013, when S.H.W. was babysitting the victim, D.R. At the time

of the sexual assault, S.H.W. was fourteen years old and D.R. was five years old. D.R.’s

mother, M.R., had asked S.H.W. to watch D.R. at 7:30 p.m. while she worked out for

approximately thirty minutes. S.H.W. told M.R. that he was going to take D.R. to Mills

Lawn Park which was located directly across the street from the house where M.R. lived

with D.R. We also note that D.R. attended Mills Lawn Park Elementary School, which is

located in the center of Mills Lawn Park in Yellow Springs, Ohio.

{¶ 3} At approximately 7:30 p.m., S.H.W. arrived at M.R.’s house, and he and D.R.

walked across the street to Mills Lawn Park. M.R. walked over to where S.H.W. and

D.R. were playing, handed them a Frisbee, and went back home to do her work out

routine. M.R. testified that she worked out for approximately fifteen minutes before she

decided to go check on D.R. because it was the first time that S.H.W. babysat him alone

without the assistance of his sister, S.W. M.R. walked to the grassy area where she had

left the boys, but she did not see them. M.R. began walking down the street looking for

S.H.W. and D.R. M.R. testified that she encountered S.W. who was going for a walk and

asked her for help in locating the two boys. M.R. and S.W. searched for the boys for

approximately seven to ten minutes but did not find them. M.R. testified that she

specifically looked for the boys at the sand box and the green monkey bars located in the

park. M.R. went back to her house and waited for another five to ten minutes before

walking back over to the park to look for the boys. At that point, M.R. found S.H.W. and

D.R. playing in the sandbox.
 -3-

{¶ 4} When M.R. asked the boys where they had been, S.H.W. answered that they

had been playing at the green monkey bars. M.R., D.R., and S.H.W. then walked back

to M.R.’s house and ate dinner. M.R. paid S.H.W. for babysitting D.R., and he left.

S.H.W., however, returned to M.R.’s residence a short time later, requesting to be paid.

M.R. testified that she reminded him that he had been paid, and he left again.

{¶ 5} Later that night, M.R. testified that she was giving D.R. a bath. M.R.

observed that his penis was “extremely erect,” and that was something that she had never

witnessed before. Furthermore, when she wiped D.R.’s bottom after a bowel movement,

M.R. observed that there was blood on the toilet paper. M.R. testified that D.R. told her

that “it hurt to poop.” M.R. testified that D.R. also seemed lethargic and acted as if

something was troubling him. M.R. testified that D.R. went to sleep almost immediately

that night which was unusual for him. M.R. testified that over the next few days, D.R.

was very temperamental and distant. On May 16, 2013, M.R. testified that she observed

D.R. laying on her bed stroking his penis. When M.R. asked him what he was doing,

D.R. stated, “[m]y penis is a groundhog, it goes into the hole,” and “my penis is a turtle.”

M.R. asked him where he had heard that, but D.R. did not mention S.H.W.

{¶ 6} M.R. testified that she and D.R. went camping from May 17, 2013, until May

19, 2013. M.R. testified that D.R. seemed distant during the trip. When they returned

on the evening of Sunday, May 19, 2013, M.R. testified that D.R. informed her that he

was “going to put his penis in her butt.” M.R. asked him where he heard that because

she had never heard him say anything like that before. In response, D.R. asked M.R. “if

he told her, would she forget.” D.R. proceeded to tell her that S.H.W. had taken him to

a library bathroom, and he made D.R. touch his penis. S.H.W. then touched D.R.’s
 -4-

penis. Thereafter, S.H.W. put his finger and then his penis into D.R.’s bottom. D.R. told

M.R. that S.H.W. threatened to kill him if he told anybody what happened. D.R. also told

M.R. that S.H.W. choked him, smacked him on the head a few times, and called him

names.

{¶ 7} On May 20, 2013, M.R. called the Yellow Springs Police Department, and

spoke to Detective Naomi Penrod who arranged to conduct a forensic interview of D.R.

at Michael’s House, an advocacy center for abused and neglected children. D.R. was

subsequently interviewed by Cynthia Gevedon. Det. Penrod testified that as a result of

the disclosures made by D.R. during the interview, she made contact with S.H.W. and his

mother, L.H. Det. Penrod informed S.H.W. that D.R. had accused him of sexually

abusing him in the Yellow Springs Library on May 14, 2013. S.H.W. denied the

accusations and offered to take a polygraph test.

{¶ 8} On May 29, 2013, S.H.W. was charged by complaint with one count of rape

and two counts of GSI. At a detention and plea hearing held on May 30, 2013, S.H.W.,

represented by counsel, entered a denial to the offenses in the complaint and was

remanded into the custody of the Greene County Juvenile Detention Center. While in

custody, S.H.W. submitted to a polygraph examination which was conducted on June 27,

2013. The parties stipulated to the use of the results of the polygraph examination at

trial and the right to cross-examine the examiner.

{¶ 9} On July 17, 2013, S.H.W. filed a motion requesting the following: 1) his

release from detention; 2) the results of his polygraph examination; and 3) discovery of

the video surveillance recordings from the Yellow Springs Library on the day that the

sexual assault was alleged to have occurred. The State filed the results of the polygraph
 -5-

examination on the same day. We note that the results of the examination indicated that

S.H.W. was being untruthful when he denied sexually assaulting D.R. on the day in

question. On July 29, 2013, the magistrate denied S.H.W.’s motion for release from

detention and ordered a voir dire examination in order to determine D.R.’s competency

to testify at trial. On August 5, 2013, S.H.W. filed a motion to dismiss the complaint,

arguing that the State knowingly withheld exculpatory evidence, to wit: the surveillance

tapes from the Yellow Springs Library from the day in question. S.H.W. also renewed

his request for release from detention.

{¶ 10} On September 3, 2013, the magistrate conducted a competency hearing for

D.R. On September 10, 2013, the magistrate issued a decision in which it found D.R.

competent to testify. The magistrate also ordered that S.H.W. be released from

detention and denied his motion to dismiss. On September 11, 2013, S.H.W. filed

objections to the magistrate’s decision which found D.R. competent to testify. Based

upon a stipulation entered into by both parties, the trial court sustained S.H.W.’s

objections to the magistrate’s decision and found that D.R. was not competent to testify.

{¶ 11} On November 15, 2013, the State filed a motion in limine in order to

determine the admissibility of hearsay statements made by D.R. to his mother and to two

forensic psychologists who interviewed him regarding the sexual assault perpetrated by

S.H.W. In a decision issued on January 2, 2014, the trial court found that D.R.’s

statements to his mother were admissible as excited utterances pursuant to Evid.R.

803(2). The trial court also found that D.R.’s statements made to the forensic

psychologists were preliminarily admissible as statements for purposes of medical

diagnosis or treatment pursuant to Evid.R. 803(4) and as a child statement in an abuse
 -6-

case under Evid.R. 807. The trial court stated that its ultimate judgment regarding the

admissibility of D.R.’s statements under Evid.R 807 would be determined by the doctors’

testimony with respect to whether the presence of blood on D.R.’s toilet paper and his

sexualized behavior could serve as independent proof of the sexual assault. Moreover,

the admissibility of statements made by D.R. to the doctors regarding S.H.W.’s identity

would be determined by whether their testimony established that those statements were

necessary for diagnosis and/or treatment. Evid.R 803(4).

{¶ 12} The hearing before the trial court was held over the following dates: January

8, 2014, January 22, 2014, and February 6, 2014. In light of the evidence presented at

the hearing, the trial court adjudicated S.H.W. delinquent of all three offenses. 1 On

March 25, 2015, the trial court imposed a commitment to the Ohio Department of Youth

Services for a minimum period of one year for the rape offense and six months for each

of the GSI offenses, the commitments to be served concurrently. The trial court also

ordered S.H.W. to pay court costs and a fine for each offense. Finally, the trial court

suspended all three commitments based on a number of conditions, including

requirements that S.H.W. comply with the terms of probation and complete an appropriate

sex offender therapy program.

{¶ 13} It is from this judgment that S.H.W. now appeals.

{¶ 14} S.H.W.’s first assignment of error is as follows:

{¶ 15} “THE JUVENILE COURT ERRED WHEN IT FOUND THAT THE ALLEGED

VICTIM’S STATEMENTS WERE ADMISSIBLE PURSUANT TO THE HEARSAY

Pursuant to Juv.R. 22(B), the trial court amended the GSI section of the complaint from
1

R.C. 2907.05(A)(2) to R.C. 2907.05(A)(4).
 -7-

EXCEPTION SET FORTH IN EVID.R. 803(2).”

{¶ 16} In his first assignment, S.H.W. contends that the trial court erred when it

found that D.R.’s statements to his mother regarding the events and circumstances

leading to the sexual assault were admissible as excited utterances pursuant to Evid.R.

803(2). Specifically, S.H.W. argues that D.R.’s statements to M.R. do not fall under the

excited utterance exception to the hearsay rule because the statements were made after

extensive questioning by M.R., and were therefore not made spontaneously, but rather

after reflective thought.

{¶ 17} 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). Hearsay is generally not admissible, except as provided by

the U.S. or Ohio Constitutions, by statute or court rule. Evid.R. 802. We review a trial

court's evidentiary rulings for an abuse of discretion, provided an objection is made at

trial. State v. Cunningham, 2d Dist. Clark No. 11CA 0032, 2012–Ohio–2333, ¶ 22.

{¶ 18} “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482

N.E.2d 1248 (1985). It is to be expected that most instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

{¶ 19} A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it deciding

the issue de novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would support a contrary
 -8-

result. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment,

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 20} Pursuant to Evid.R. 803(2), an excited utterance is an exception to the

hearsay rule. In State v. Abner, 2d Dist. Montgomery No. 20661, 2006–Ohio–4510 at ¶

69, we observed:

An excited utterance is defined as “[a] statement relating to a startling

event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” Evid.R. 803(2). For a

statement to be admissible as an excited utterance, four prerequisites must

be satisfied: (1) the occurrence of an event startling enough to produce a

nervous excitement in the declarant; (2) a statement made while still under

the stress of excitement caused by the event; (3) a statement related to the

startling event; and (4) the declarant's personal observation of the startling

event. State v. Taylor, 66 Ohio St.3d 295, 300-301, 612 N.E.2d 316 (1993).

{¶ 21} In Taylor, the Ohio Supreme Court elaborated on the proper scope of

appellate review of a trial court's decision to admit or reject a hearsay exception like an

excited utterance:

“There may be instances in which a decision to reject such a

declaration will appear to a reviewing court almost as reasonable as a

decision to admit it; and vice versa. We certainly do not believe that the

decision of the trial judge in such an instance should be disturbed.

* * * [T]he trial judge, in determining whether this declaration was

admissible, necessarily had to decide certain questions of fact. If his
 -9-

decision of those questions of fact, as reflected in his ruling on the

admissibility of this declaration, was a reasonable decision, an appellate

court should not disturb it. In other words, we believe that the decision of

the trial judge, in determining whether or not a declaration should be

admissible under the spontaneous exclamations exception to the hearsay

rule, should be sustained where such decision appears to be a reasonable

one, even though the reviewing court, if sitting as a trial court, would have

made a different decision. * * * ”

Taylor, 66 Ohio St.3d at 304–305, 612 N.E.2d 316, quoting Potter v. Baker, 162 Ohio St.

488, 499–500, 124 N.E.2d 140 (1955).

{¶ 22} The excited utterance exception to the hearsay rule should be applied

liberally in a case involving the sexual abuse of a young child. State v. Boston, 46 Ohio

St.3d 108, 118, 545 N.E.2d 1220 (1989). This is based upon the age of the child, the

shocking nature of the act, and the surprising nature of the assault. Id.

{¶ 23} The passage of time between the event and the child's out-of-court

statement, while obviously a factor, is not dispositive. Even when the statement is made

after a substantial lapse of time, it may be admitted under the excited-utterance exception.

Taylor, 66 Ohio St.3d 295, 303-304 (1993). Where a young child claims to have been

the victim of a sexual assault, the test for admission of the child's statements does not

focus upon the progression of the startling event or occurrence, but upon the spontaneous

nature of the child's statement. State v. Huntley, 2d Dist. Montgomery No. 23545, 2010-

Ohio-6102, ¶ 35. Children are likely to remain in a state of nervous excitement longer

than would an adult, and therefore it has been held that admission of statements of a child
 -10-

regarding sexual assault may be proper under the excited utterance exception even when

they are made after a substantial lapse of time. Taylor, 66 Ohio St.3d 295, 304 (1993).

The Ohio Supreme Court also held in Taylor that there is no per se amount of time after

which a statement can no longer be considered to be an excited utterance; the central

requirements are that the statement must be made while the declarant is still under the

stress of the event and the statement may not be a result of reflective thought. Id.

{¶ 24} Upon review, we agree with the trial court and find that D.R.’s statements

to his mother were not the product of leading and/or coercive questioning on the part of

M.R. Significantly, the record establishes that the following statements made by D.R. to

his mother were spontaneous and not the result of any type of questioning: 1) “my penis

is a turtle, it goes in and out of its shell;” 2) “my penis is a groundhog, it goes into the

hole;” and 3) “I’m going to put my penis in your butt.” All three of the statements made

by D.R. related to a startling event, were spontaneously uttered, and regarded a subject

matter ordinarily foreign to a young child. Moreover, upon hearing D.R. state that he was

“going to put [his] penis in [her] butt,” M.R. simply asked the child where he had previously

heard that phrase because he had never said anything like that before. D.R. responded

by asking M.R., “if I tell you, will you forget?” When M.R. responded by reassuring him

that she would, in fact, “forget,” D.R. told her what S.H.W. had done to him. M.R. did not

ask D.R. any leading questions, nor does the record establish that she coerced D.R. into

telling her about the sexual assault committed by S.H.W.

{¶ 25} M.R. further testified that in the days after the sexual assault occurred and

before he informed her of the incident, D.R. was acting “defeated” and as if “something

was troubling him.” M.R. testified that D.R., who was usually very bright and energetic,
 -11-

acted very angry and emotionally volatile, stating that he “hated [him]self” on at least one

occasion. M.R. testified that during a trip to the zoo in the following week after the assault

occurred, D.R. stated that he wanted to run out in front of a train that ran around the

property and kill himself. Coupled with his emotionally volatile behavior, D.R.’s request

that M.R. “forget if he told what happened” establishes that he was still under the stress

of the shocking event when he made the statements to his mother. Accordingly, neither

M.R.’s non-coercive follow-up questions, nor the passage of approximately five days,

destroyed the spontaneity and nervous excitement of D.R.’s statements regarding the

event. Thus, the trial court did not err when it admitted D.R.’s statements to M.R. as

excited utterances pursuant to Evid.R. 803(2).

{¶ 26} S.H.W.’s first assignment of error is overruled.

{¶ 27} S.H.W.’s second assignment of error is as follows:

{¶ 28} “THE JUVENILE COURT ERRED WHEN IT FOUND THAT THE ALLEGED

VICTIM’S STATEMENTS WERE ADMISSIBLE PURSUANT TO THE HEARSAY

EXCEPTION SET FORTH IN EVIDENCE RULE 807.”

{¶ 29} In his second assignment, S.H.W. argues that the trial court erred when it

admitted D.R.’s hearsay statements regarding the sexual abuse he suffered pursuant to

Evid.R. 807. Specifically, S.H.W. argues that D.R.’s statements regarding the sexual

abuse lacked sufficient indicia of trustworthiness and independent corroboration of the

abuse. S.H.W. also asserts that the trial court's finding that D.R. was incompetent to

testify was inconsistent and incompatible with its finding that his statements

were trustworthy and reliable.

{¶ 30} Evid.R. 807 provides:
 -12-

(A) An out-of-court statement made by a child who is under twelve years of

age at the time of trial or hearing describing any sexual act performed by,

with, or on the child or describing any act of physical violence directed

against the child is not excluded as hearsay under Evid.R. 802 if all of the

following apply:

(1) The court finds that the totality of the circumstances surrounding the

making of the statement provides particularized guarantees of

trustworthiness that make the statement at least as reliable as statements

admitted pursuant to Evid.R. 803 [availability of declarant immaterial] and

804 [declarant unavailable]. The circumstances must establish that the child

was particularly likely to be telling the truth when the statement was made

and that the test of cross-examination would add little to the reliability of the

statement. In making its determination of the reliability of the statement, the

court shall consider all of the circumstances surrounding the making of the

statement, including but not limited to spontaneity, the internal consistency

of the statement, the mental state of the child, the child's motive or lack of

motive to fabricate, the child's use of terminology unexpected of a child of

similar age, the means by which the statement was elicited, and the lapse

of time between the act and the statement. In making this determination,

the court shall not consider whether there is independent proof of

the sexual act or act of physical violence.

2) The child's testimony is not reasonably obtainable by the proponent of

the statement.
 -13-

(3) There is independent proof of the sexual act or act of physical violence.

(4) At least ten days before the trial or hearing, a proponent of the statement

has notified all other parties in writing of the content of the statement, the

time and place at which the statement was made, the identity of the witness

who is to testify about the statement, and the circumstances surrounding

the statement that are claimed to indicate its trustworthiness.

{¶ 31} As with other evidentiary matters, we review the trial court's determination

that a child's statement is admissible under Evid.R.807 for an abuse of discretion. In Re:

A.K., 2d Dist. Montgomery No. 26199, 2015-Ohio-30, ¶ 16 (admitting a four-year-old

alleged sexual abuse victim's statements to his mother, father, and treating physician

identifying the defendant as his abuser under Evid.R. 807). We note that S.H.W.

does not dispute that D.R. was unavailable (Evid.R. 807(A)(2)) or that proper notice was

given of the statements' content and circumstances (Evid.R. 807(A)(4)). However,

S.H.W. contends that the trial court erred in concluding that D.R.'s statements had

sufficient indicia of trustworthiness (Evid.R. 807(A)(1)) and that there was independent

proof of the sexual act(s) (Evid.R. 807(A)(3)).

{¶ 32} In In Re: A.K., 2d Dist. Montgomery No. 26199, 2015-Ohio-30, we recently

addressed the trial court’s admission of a four-year old’s statements under Evid.R. 807

after the child had been deemed incompetent to testify at trial:

There can be no dispute but that the testimony of young children

presents vital and serious concerns for the rule of law and the fact

finder. See, e.g., Mosteller, Remaking Confrontation Clause and Hearsay

Doctrine Under the Challenge of Child Sexual Abuse Prosecutions, 1993
 -14-

U.Ill.L.Rev. 691 (1993). In this regard, the Ohio Supreme Court's view of

the interplay between Evid.R. 807, competency, and the admissibility of a

child-victim's out-of-court statement has evolved over time. In State v.

Said, 71 Ohio St.3d 473, 644 N.E.2d 337 (1994), the court held that a trial

court was required to find that a child was competent at the time he made

an out-of-court statement in order to admit the child's statement

under Evid.R. 807. Id. at 477.

However, in 2009, the supreme court rejected its prior holding,

stating that the majority in Said had “sweepingly declared, without any

authority” that Evid.R. 807 required a finding that the child was competent

at the time he made the out-of-court statement. State v. Silverman, 121

Ohio St.3d 581, 2009–Ohio–1576, 906 N.E.2d 427, ¶ 15. The Silverman

court observed that any requirement that the child declarant be determined

to be competent to testify before a statement may be admitted was “notably

absent” from Evid.R. 807. Id. at ¶ 14. “We now hold that the better

approach is to return to the plain text of Evid.R. 807. The rule says

absolutely nothing about a child declarant's competence.” Id. at ¶ 20.

In so holding, Silverman discussed several holdings from the

supreme courts of other states and embraced their views that “a finding of

incompetence ‘does not make the [child's] hearsay statements unreliable’ ”

and that it is a “ ‘flawed assumption that a determination of incompetency

at the time of the hearing invariably establishes that the child's statement

was not reliable.’ ” Id. at ¶ 21–26, citing Washington v. C.J., 148 Wash.2d
 -15-

672, 63 P.3d 765 (2003) and Colorado v. Dist. Court of El Paso Cty., 776

P.2d 1083, 1088 (Colo.1989). Silverman rejected the “dicta” in Said “that

judicially grafted a competence requirement onto Evid.R. 807” and focused

on the “host of factors” set forth in Evid.R. 807(A) to determine whether the

child's out-of-court statement was reliable. Id. at ¶ 26–27.

It would not be frivolous to argue that the Supreme Court's

references to the holdings in other states that a finding of

incompetency does not per se render a hearsay statement inadmissible are

dicta, given the court's one-sentence “conclusion” that “a hearsay statement

of a child declarant can be admitted under Evid.R. 807 without a

determination of the child's competency to testify.” Silverman at ¶

34. Silverman, thus construed, would not be binding precedent as to

whether an affirmative finding of incompetence is the same as no

determination—either way—of competency. However, such a strained

interpretation of Silverman is not justified when the case is read as a whole.

In Re: A.K., ¶s 18-21.

{¶ 33} In the instant case, the trial court acted in accordance with Silverman in

recognizing that its determination with respect to D.R.'s competence did not end the

inquiry into the admissibility of his statements and in looking at the totality of the

circumstances surrounding the making of the statements to determine their reliability and,

thus, their admissibility. The parties’ stipulation to D.R.’s incompetency to testify in this

case did not require the trial court to also conclude that his statements to his mother and

treating physicians were untrustworthy.
 -16-

{¶ 34} As previously stated, the State filed a motion in limine in order to determine

the admissibility of hearsay statements made by D.R. to his mother and to two forensic

psychologists who interviewed him regarding the sexual assault perpetrated by S.H.W.

In regards to the admissibility of D.R.’s statements under Evid.R. 807, the trial court stated

the following:

The Court finds that three of the four prerequisites under Evidence

Rule 807-(1), (2), and (4) – have been met. Based upon the spontaneity

of D.R.’s statements, their internal consistency, the lack of a motive for D.R.

to fabricate, the use of terminology unexpected for a child D.R.’s age, and

the alleged sexual assault being the only source of D.R.’s awareness of said

terminology, the Court finds that the statements are trustworthy and as least

as reliable as statements admitted pursuant to Evid.R. 803 and 804.

Whether there is independent proof of the sexual act will hinge of [sic] the

Court’s finding after hearing the opinions of Dr. Roediger and/or Dr.

Guadalupe related to the blood on the toilet tissue and D.R.’s alleged

sexualized behavior.

{¶ 35} S.H.W. argues that D.R.'s statements were not “spontaneous” because they

were elicited during questioning by adults, namely M.R. who was already negatively

predisposed towards S.H.W. Although questioning by an adult should be considered in

the totality of the circumstances bearing on the trustworthiness of a child's statements, it

does not automatically render a child's statement unreliable or untrustworthy. We have

previously found that “it is understandable that a child of tender years would be reluctant

to talk about * * * a puzzling and traumatizing incident except in a question-and-answer
 -17-

format. With respect to the trustworthiness and reliability of [a child's] statements, we

believe it is far more important that no one coached or prodded [the child] concerning

what had happened to [him] and less important that [the child] had to be encouraged to

talk about those events.” State v. Cardosi, 122 Ohio App.3d 70, 76, 701 N.E.2d 44 (2d

Dist.1997).

{¶ 36} As we stated in the first assignment, D.R. was not prodded or coerced into

disclosing the sexual abuse he suffered from S.H.W. M.R. simply asked D.R. where he

had heard about putting his “penis in her butt.” M.R. did not implicate S.H.W. in any way

before being told by D.R. of the sexual abuse. Additionally, Dr. Guadalupe testified that

D.R. used age appropriate language and his story regarding the sexual abuse was

consistent over time. While the terminology D.R. used was age appropriate, Dr.

Guadalupe testified that D.R. should not have been aware of the concepts and sexual

acts that he described. Moreover, D.R. had no discernible motive to fabricate the

incident. M.R. testified that prior to the sexual abuse, D.R. stated that he liked S.H.W.

Both Drs. Roediger and Guadalupe testified that D.R.’s overall mental state and behavior

following the incident was consistent with someone who had experienced sexual abuse.

Accordingly, the trial court did not err when it found that D.R.’s statements had

sufficient indicia of trustworthiness under Evid.R. 807(A)(1).

{¶ 37} S.H.W. also argues that there was no independent proof of the sexual

act(s), as required by Evid.R. 807(A)(3). As previously noted, both Drs. Roediger and

Guadalupe testified that D.R.’s behavior was consistent with a child who had been

sexually abused. Among the symptoms exhibited by D.R. that were indicative of sexual

abuse were anxiety, fear, sadness, anger, guilt, and blame. Dr. Guadalupe testified that
 -18-

D.R. told her that he suffered from frequent nightmares and recurrent memories

associated with the sexual abuse. Furthermore, when she wiped D.R.’s bottom after a

bowel movement on the night of the incident, M.R. observed that there was blood on the

toilet paper. M.R. testified that D.R. told her that “it hurt to poop.”

{¶ 38} M.R. also testified that almost immediately after the abuse was alleged to

have occurred, D.R. began exhibiting sexualized behavior that she had never observed

until that point. Specifically, when she ran a bath for D.R. on the night after the incident,

she observed that his penis was erect, something which had never occurred before.

M.R. also observed that the once energetic D.R. seemed unusually tired and negative.

On May 16, 2013, two nights after the incident occurred M.R. testified that she observed

D.R. laying on her bed stroking his penis. When M.R. asked him what he was doing,

D.R. stated, “[m]y penis is a groundhog, it goes into the hole,” and “my penis is a turtle.”

Lastly, just before disclosing the sexual abuse to M.R., D.R. told her that he wanted to

“put [his] penis in her butt.” The trial court, therefore, did not abuse its discretion in

concluding that the onset of sexually inappropriate and suggestive behavior

constituted independent proof that D.R. had been abused. Accordingly, the trial court

did not err when it admitted D.R.’s hearsay statements regarding the sexual abuse he

suffered pursuant to Evid.R. 807.

{¶ 39} S.H.W.’s second assignment of error is overruled.

{¶ 40} S.H.W.’s third assignment of error is as follows:

{¶ 41} “THE JUVENILE COURT ERRED WHEN IT FOUND THAT THE ALLEGED

VICTIM’S STATEMENTS WERE SUBJECT TO THE HEARSAY EXCEPTION SET

FORTH IN EVID.R. 803(4).”
 -19-

{¶ 42} In his third assignment, S.H.W. argues that the trial court erred when it

admitted D.R.’s statements to his treating physicians with respect to the identity of the

person who sexually abused him pursuant to Evid.R. 803(4). Specifically, S.H.W.

contends that D.R.’s statements to Drs. Roediger and Guadalupe in which he identified

S.H.W. as his abuser were not admissible as statements for the purpose of medical

treatment under Evid.R. 803(4).

{¶ 43} 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.” State v. Hill, 2d Dist. Montgomery No. 24410, 2011-Ohio-5810, ¶¶ 24-26. 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).” State v. Dever, 64 Ohio St.3d 401, 414, 596 N.E.2d 436 (1992).

{¶ 44} “Statements made to medical personnel for purposes of diagnosis or

treatment are not inadmissible under Crawford [v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004)] because they are not even remotely related to the evils

that the Confrontation Clause was designed to avoid.” State v. Muttart, 116 Ohio St.3d 5,

2007–Ohio–5267, 875 N.E.2d 944, ¶ 63; see also State v. Stahl, 111 Ohio St.3d 186,
 -20-

2006–Ohio–5428, 855 N.E.2d 834, ¶ 25. Statements of this kind are not testimonial in

nature. Instead, they fall within a well-defined exception to the hearsay rule, that is,

statements made for the purpose of medical diagnosis or treatment. Evid.R. 803(4). The

exception allows the admission of statements made not only to licensed physicians, but

also to psychologists and social workers, so long as the function of the person to whom

the statement is made was diagnosis or treatment. Hill, 2d Dist. Montgomery No. 24410,

2011-Ohio-5810, ¶ 27. “A reviewing court will not reverse the trial court's admission of

evidence absent an abuse of discretion.” State v. Bellomy, 2d Dist. Montgomery No.

21452, 2006–Ohio–7087, ¶ 12.

{¶ 45} In Muttart, the defendant was convicted of raping a child under 13 years of

age, and the Supreme Court of Ohio determined that the trial court did not abuse its

discretion in admitting the victim's out of court statements to medical personnel pursuant

to Evid.R. 803(4). Id., 116 Ohio St.3d 5, 2007–Ohio–5267. The statements contained

the perpetrator's identity. The Muttart court further determined that the victim's

statements were not testimonial in nature and did not implicate the defendant's Sixth

Amendment right of confrontation. In the course of its analysis, the Court determined

that the “salient inquiry is * * * whether [the victim's] statements were made for purposes

of diagnosis and treatment rather than for some other purpose.” Id. at ¶ 47.

{¶ 46} The Court further went on to note that the trial court “retains the discretion

to admit the testimony after considering the circumstances surrounding the child victim's

statements.” Id. at ¶ 48. The Court determined, “[a]t a minimum * * * a nonexhaustive

list of considerations includes (1) whether the child was questioned in a leading or

suggestive manner, (2) whether there is a motive to fabricate, such as a pending legal
 -21-

proceeding such as a ‘bitter custody battle,’ and (3) whether the child understood the

need to tell the physician the truth. In addition, the court may be guided by the age of

the child making the statements, which might suggest the absence or presence of an

ability to fabricate, and the consistency of the declarations. In addition, the court should

be aware of the manner in which a physician or other medical provider elicited or pursued

a disclosure of abuse by a child victim, as shown by evidence of the proper protocol for

interviewing children alleging sexual abuse.” Id. at ¶ 49. (Citations omitted).

{¶ 47} S.H.W. argues that Drs. Guadalupe and Roediger both testified that the

identity of the perpetrator was not important for purposes of their treatment and diagnosis

of D.R. Therefore, S.H.W. asserts that their testimony in this regard should not have

been admitted pursuant to Evid.R. 803(4). S.H.W.’s argument, however, is contradicted

by the actual testimony of each doctor. When questioned about D.R.’s identification of

S.H.W., Dr. Guadalupe provided the following testimony:

The State: In the course of your treatment of [D.R.], did [D.R.] make

any statements to you regarding the incident which he was referred to you

for?

Dr. Guadalupe: Yes.

Q: And before we get into what [D.R.] told you and without telling me

who, did [D.R.] ever identify the perpetrator to you?

A: Yes.

Q: And was it necessary for your treatment and/or diagnosis to know

who this perpetrator was?

A: Yes.
 -22-

Q: Why is that?

A: Well, for treatment in terms of the details about the alleged

perpetrator, some of my concerns for treatment would have been – pardon

me – would have been concerns for [D.R.] about how frequently he might

cross paths with this person, the level of anxiety that [D.R.] might feel about

potentially running into this person, things like that made it important for me

to know at least some details about the identity.

The State: Your Honor, before we go any further, I ask the Court to

make a ruling as to whether Dr. Guadalupe is allowed to disclose who [D.R.]

told her was the perpetrator.

The Court: Well, as the Court previously ruled on the State’s motion

in limine, I think you need to – I think you need to put the question to the

expert in light of the fact that the evidence as the Court has found showed

that D.R.’s mother had already taken steps to make sure that D.R. would

not have any further contact with this alleged perpetrator. So why was it

necessary at this point for the psychologist to – why is that necessary for

treatment?

***

The State: Doctor, in regards to the fact that [D.R.]’s mother had

already taken precautions to make sure that her son and the alleged

perpetrator did not have contact with each other, was it still relevant and

important for you to know who the perpetrator was?

***
 -23-

Dr. Guadalupe: The importance – the importance would not

necessarily be the identity of the perpetrator but the details – for example,

their previous relationship. That makes a difference in treatment, if there

is an ongoing and trusting relationship, that might lead to different

implications for emotional reactions and treatment rather than if it was

somebody that was – that was not known to [D.R.]. So the closeness of

the relationship was important to determine.

{¶ 48} When questioned regarding D.R.’s identification of S.H.W. as the

perpetrator of the abuse, Dr. Roediger provided the following testimony:

The Court: All right. I’ve got a question. I think this may be what

you were trying to go through with [defense counsel]. Doctor, for the

purposes of your diagnosis of a patient, is the identity of the alleged

perpetrator a necessary piece of the information (indiscernible)?

Dr. Roediger: That’s a complicated question, Your Honor. I think if

at all possible, if a child or adolescent is able to provide information to me

as a physician regarding either the identity and/or the approximate age of

the alleged perpetrator, especially in cases of sexual maltreatment, it is of

assistance to me in the care of a patient presenting with sexual abuse

concerns, in that it does help direct the nature of the testing that may be

conducted for a child or adolescent.

In that, for instance, when [D.R.] reported to me who the alleged

perpetrator was in this particular case, and confirmed at least to the best of

[D.R.]’s knowledge and approximate age, which, again, did confirm the
 -24-

information that had been privately shared with me by the biological mother,

it, again, heightened my concern for the possibility that [D.R.] may have

been exposed to sexually transmitted infections given the age of the alleged

perpetrator and directing me to advise the mother that we should do cultures

for sexually transmitted infection and bloodwork for sexually transmitted

infection knowing that there could be a potential risk of exposure given the

disclosure that [D.R.] shared with me in terms of the type of sexual contact

he indicated had reportedly occurred between him and the alleged

perpetrator, so, yes, Your Honor. If a child is able to tell me the name

and/or identity of the party and whether that may be a grownup or a big kid

or a little kid brings this in their own words, sir, it is of assistance.

{¶ 49} Upon review, we conclude that the trial court did not abuse its discretion by

permitting Drs. Guadalupe and Roediger to testify regarding D.R.'s identification of

S.H.W. as the perpetrator of the sexual abuse pursuant to Evid.R. 803(4). D.R.'s

statements to both doctors were made for purposes of medical diagnosis and treatment.

There is no suggestion herein that D.R. was not truthful. There is no suggestion of a

motive for fabrication on D.R.'s part. Dr. Roediger was responsible for a medical and

psychological evaluation of D.R. Specifically, Dr. Roediger was concerned that D.R.

may have been exposed to a sexually transmitted disease based on the nature of the

sexual contact that he reported. Dr. Guadalupe was concerned with an increase in

D.R.’s anxiety levels brought on by the sexual abuse. Both doctors affirmatively testified

that the identity of the perpetrator was important for purposes of their treatment and

diagnosis of D.R. Accordingly, we conclude that the trial court did not abuse its
 -25-

discretion when it admitted D.R.’s statements to his treating physicians with respect to

the identity of the person who sexually abused him pursuant to Evid.R. 803(4).

{¶ 50} S.H.W.’s third assignment of error is overruled.

{¶ 51} S.H.W.’s fourth assignment of error is as follows:

{¶ 52} “THE EVIDENCE WAS INSUFFICIENT TO SUPPORT AN

ADJUDICATION OF RAPE AND GROSS SEXUAL IMPOSITION AND THE TRIAL

COURT’S FINDING OF DELINQUENCY WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

{¶ 53} In his fourth assignment, S.H.W. argues that his adjudications of

delinquency for rape and gross sexual imposition were not supported by sufficient

evidence. S.H.W. also contends that his adjudications of delinquency were against the

manifest weight of the evidence.

{¶ 54} A sufficiency-of-the-evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). Under a sufficiency analysis, an appellate court does

not make any determinations regarding the credibility of witnesses. State v. Goff, 82 Ohio

St.3d 123, 139, 694 N.E.2d 916 (1998), citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. “An appellate court's function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the
 -26-

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 492

(1991), paragraph two of the syllabus.

{¶ 55} In contrast, when reviewing a judgment under a manifest-weight standard

of review, “ ‘[t]he court reviewing the entire record, weighs the evidence and all reasonable

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

conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest

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

discretionary power to grant a new trial should be exercised only in the exceptional case

in which evidence weighs heavily against the conviction.’ ” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 56} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97–CA–03, 1997 WL

691510 (Oct. 24, 1997).

{¶ 57} S.H.W. was adjudicated delinquent for one count of rape, in violation of R.C.

2907.02(A)(1)(b), a felony of the first degree if committed by an adult; and two counts of

GSI, in violation of R.C. 2907.05(A)(4), both felonies of the third degree if committed by

an adult.

{¶ 58} The offense of rape requires proof of the following elements:

(A)(1) No person shall engage in sexual conduct with another who is not the

spouse of the offender or who is the spouse of the offender but is living

separate and apart from the offender, when any of the following applies:
 -27-

(b) The other person is less than thirteen years of age, whether or not the

offender knows the age of the other person.

{¶ 59} GSI requires proof of the following elements:

(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 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.

{¶ 60} “ ‘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).

{¶ 61} Initially, we note that S.H.W. argues that his adjudications are based on

insufficient evidence and against the manifest weight because the trial court improperly

admitted D.R.’s statements to his mother, Dr. Roediger, and Dr. Guadalupe. Without

that evidence, S.H.W. asserts that there is insufficient evidence to support his

adjudications. However, as stated in assignments of error I, II, and III, we found that the

trial court did not err in admitting D.R.’s statements to his mother and both of the doctors.

Thus, S.H.W.’s argument is without merit in this regard.

{¶ 62} S.H.W. further argues that the evidence adduced was insufficient to support

his adjudications of delinquency for GSI because the State failed to establish he engaged

in sexual contact with D.R. for the purpose of sexual gratification. For purposes of the
 -28-

crime of rape, which requires proof of “sexual conduct”, the definitions of sexual conduct

in R.C. 2907.01(A) necessarily imply that the actor's motive is sexual gratification, and so

no further proof of sexual gratification is required when sexual conduct is proved. State

v. Gillingham, 2d Dist. Montgomery No. 20671, 2006-Ohio-5758, ¶ 31. However, sexual

contact, as defined by R.C. 2907.01(B), does not necessarily imply that the actor's

purpose was sexual gratification. Id. In the absence of direct testimony regarding sexual

arousal or gratification, 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. From these facts, the trier of facts may infer what the

defendant's motivation was in making the physical contact with the victim. 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.’ ” State v. Mundy, 99 Ohio App.3d

275, 288–289, 650 N.E.2d 502 (2d Dist.1994), quoting State v. Cobb, 81 Ohio App.3d

179, 185, 610 N.E.2d 1009 (9th Dist.1991).

{¶ 63} In the instant case, the record clearly establishes that S.H.W.’s actions were

done for the purpose of sexual gratification. Specifically, the evidence adduced at trial

established that S.H.W. took D.R. into a secluded bathroom where he put his finger and

penis into D.R.’s buttocks. The evidence also established that S.H.W. made D.R. touch

his penis, and he then touched D.R.’s penis. Therefore, we conclude that sufficient

evidence was adduced at trial whereby the judge could find that S.H.W.'s purpose in

touching D.R.’s penis and having D.R. touch his penis was for sexual gratification or

arousal.
 -29-

{¶ 64} S.H.W. further argues that there was insufficient evidence of venue.

Venue is not a material element of any crime, but is a fact that must be proven beyond a

reasonable doubt. State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). “In

the prosecution of a criminal case, it is not essential that the venue of the crime be proved

in express terms, provided it be established by all the facts and circumstances, beyond a

reasonable doubt, that the crime was committed in the county and state as alleged in the

affidavit.” State v. Gribble, 24 Ohio St.2d 85, 263 N.E.2d 904 (1970), paragraph two of

the syllabus.

{¶ 65} In the case at bar, sufficient evidence was adduced to establish that the

sexual abuse occurred in Yellow Springs, Greene County, Ohio. M.R. testified that

S.H.W. was babysitting D.R. at Mills Lawn Park in Yellow Springs when the incident

occurred. S.H.W.’s sister testified that she and M.R. were looking for D.R. and the

appellant at Mills Lawn Park when the sexual abuse occurred. Det. Penrod testified that

due to the short time frame in which the sexual abuse occurred, the only place the

offenses could have occurred was in Yellow Springs. Clearly, the State adduced

sufficient evidence to establish that the sexual abuse occurred in Greene County, Ohio.

Accordingly, we conclude that the State adduced sufficient evidence at trial to support

S.H.W.’s adjudications of delinquency for rape and gross sexual imposition.

{¶ 66} Lastly, S.H.W. asserts that the trial court adjudications of delinquency were

against the manifest weight of the evidence for the following reasons: 1) M.R.’s testimony

regarding the timetable of events establishes that there was an insufficient amount of time

for S.H.W. to have committed the instant offenses; 2) there was some evidence adduced

which established that the Mills Lawn School may have been locked at the time the
 -30-

offenses occurred; 3) the polygraph results implicating S.H.W. lack credibility; and 4) the

trial court based its decision upon evidence not in the record. S.H.W.’s arguments are

without merit.

{¶ 67} The credibility of the witnesses and the weight to be given to their testimony

were matters for the trial court, as the trier of fact, to determine. The trial court did not

lose its way simply because it chose to believe the testimony of M.R., who testified at

length regarding what she personally observed on the night the offenses occurred, as

well as what D.R. told her about what S.H.W. did to him. While some evidence was

adduced that the Mills Lawn School ordinarily was locked at the time the offenses were

alleged to have occurred, several witnesses testified that the school could have been

open as well. John Gudgel testified that the door to the school could have been unlocked

by the custodian because of the neighborhood watch meeting being held at the school

that evening. Det. Penrod also testified that the school was unlocked on Tuesday nights

(the day the offenses occurred) because there were Zumba classes held at that time

which she personally attended, although not on the night in question. Furthermore, there

is no evidence in the record that the trial court placed undue weight on the results of the

polygraph examination in adjudicating S.H.W. delinquent of one count of rape and two

counts of GSI. Finally, the record fails to establish that the trial court based its decision

on matters not in evidence. Having reviewed the entire record, we cannot clearly find

that the evidence weighs heavily against conviction, or that a manifest miscarriage of

justice has occurred.

{¶ 68} S.H.W.’s fifth assignment of error is as follows:

{¶ 69} “TRIAL COUNSEL WAS INEFFECTIVE FOR PERMITTING APPELLANT
 -31-

TO SUBMIT TO A POLYGRAPH EXAMINATION AND STIPULATING TO THE

RESULTS TO APPELLANT’S PREJUDICE.”

{¶ 70} In his fifth assignment of error, S.H.W. argues that he received ineffective

assistance when his counsel permitted him to submit to a polygraph examination and

stipulated to the results of the examination.

{¶ 71} A claim of ineffective assistance of trial counsel requires both a showing

that trial counsel's representation fell below an objective standard of reasonableness, and

that the defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. The prejudice prong requires a finding that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different, with a reasonable probability being “a probability sufficient to

undermine confidence in the outcome.” Id. at 694; see also State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989).

{¶ 72} The Supreme Court of Ohio discussed the admissibility of polygraph

examinations in State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978). The Souel

court stated the following:

The results of a polygraphic examination are admissible in evidence in a

criminal trial for purposes of corroboration or impeachment, provided that

the following conditions are observed:

(1) The prosecuting attorney, defendant and his counsel must sign a written

stipulation providing for defendant's submission to the test and for the
 -32-

subsequent admission at trial of the graphs and the examiner's opinion

thereon on behalf of either defendant or the state.

(2) Notwithstanding the stipulation, the admissibility of the test results is

subject to the discretion of the trial judge, and if the trial judge is not

convinced that the examiner is qualified or that the test was conducted

under proper conditions he may refuse to accept such evidence.

(3) If the graphs and examiner's opinion are offered in evidence the

opposing party shall have the right to cross-examine the examiner

respecting:

(a) the examiner's qualifications and training;

(b) the conditions under which the test was administered;

(c) the limitations of and possibilities for error in the technique of polygraphic

interrogation; and,

(d) at the discretion of the trial judge, any other matter deemed pertinent to

the inquiry.

(4) If such evidence is admitted the trial judge should instruct the jury to the

effect that the examiner's testimony does not tend to prove or disprove any

element of the crime with which a defendant is charged, and that it is for the

jurors to determine what weight and effect such testimony should be given.

Id. at syllabus.

{¶ 73} In State v. Lascola, 61 Ohio App.3d 228, 572 N.E.2d 717 (10th Dist.1988),

the appellate court stated the following, which we find instructive:

When a defendant agrees to undergo a polygraph test, presumably he
 -33-

knows whether he is telling the truth and is willing to assume the risk of

error. It is completely within his knowledge and control whether to make the

decision. * * *

Id. at 234, 572 N.E.2d 717; emphasis added.

{¶ 74} The polygraph stipulation, which bears the signatures of both counsel and

S.H.W., complied with all of the requirements set forth in Souel. The document is clearly

and carefully crafted. It unambiguously cautions against the potential ramifications of an

accused's decision to take the test. Furthermore, as indicated above, defense counsel

vigorously cross-examined the polygraph examiner, challenging all “matter[s] deemed

pertinent” as contemplated by Souel, including “the limitations of and possibilities for

error” in the examination process. We note that the fourth Souel factor does not apply

in the instant case because the proceedings were before a juvenile court, and there was

no jury.

{¶ 75} We note that S.H.W. voluntarily entered into the polygraph stipulation, and

the record establishes that the decision to take the polygraph examination originated with

him. Additionally, if S.H.W. had passed the polygraph examination, pursuant to terms of

the stipulation, the State would have been required to dismiss the case. The decision to

permit S.H.W. to submit to a polygraph examination and stipulate to the results of the

examination was a calculated risk that clearly falls within the realm of trial tactics, and

thus, did not constitute ineffective assistance of counsel. State v. Lodge, 2d Dist. Greene

No. 2004 CA 43, 2005-Ohio-1908, ¶ 40. In any event, S.H.W. has failed to demonstrate

that there is a reasonable probability that but for defense counsel's actions, the result of

the trial would have been different.
 -34-

{¶ 76} S.H.W.’s fifth assignment of error is overruled.

{¶ 77} S.H.W.’s sixth and final assignment of error is as follows:

{¶ 78} “THE JUVENILE COURT COMMITTED CUMULATIVE ERROR TO THE

PREJUDICE OF APPELLANT.”

{¶ 79} “[S]eparately harmless errors may violate a defendant's right to a fair trial

when the errors are considered together. State v. Madrigal, 87 Ohio St.3d 378, 2000–

Ohio–448, 721 N.E.2d 52. In order to find ‘cumulative error’ present, we must first find

that multiple errors were committed at trial. Id. at 398, 721 N .E.2d 52. We then must

find a reasonable probability that the outcome of the trial would have been different but

for the combination of the separately harmless errors. State v. Thomas, Clark App. No.

2000–CA–43, 2001–Ohio–1353.” State v. Kelly, 2d Dist. Greene No. 2004–CA–20,

2005–Ohio–305, ¶ 33. “Where no individual, prejudicial error has been shown, there can

be no cumulative error. State v. Blankenship (1995), 102 Ohio App.3d 534, 557, 657

N.E.2d 559.” State v. Jones, 2d Dist. Montgomery No. 20349, 2005–Ohio–1208, ¶ 66.

{¶ 80} In light of our foregoing analysis, we find that S.H.W. has failed to establish

that any errors occurred in the instant case. State v. Moreland, 50 Ohio St.3d 58, 69, 552

N.E.2d 894 (1990). Thus, we fail to see how the absence of error can constitute

cumulative error. Id.

{¶ 81} S.H.W.’s sixth and final assignment of error is overruled.

{¶ 82} All of S.H.W.’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

..........

FROELICH, J. and HALL, J., concur.
 -35-

Copies mailed to:

Nathaniel R. Luken
Michael T. Columbus
Hon. Adolfo Tornichio