State v. Elam

[Cite as State v. Elam, 2016-Ohio-5619.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 103122

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

CHARLES ELAM
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-587865-A

BEFORE: Laster Mays, J., Jones, A.J., and McCormack, J.

RELEASED AND JOURNALIZED: September 1, 2016
-i-
ATTORNEY FOR APPELLANT

Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy McGinty
Cuyahoga County Prosecutor

By: Jennifer King
John Patrick Colan
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

I. INTRODUCTION AND BACKGROUND

{¶1} Defendant-appellant Charles Elam (“Elam”) appeals from his bench trial

convictions for two counts of gross sexual imposition and one count of kidnapping with a

sexual motivation specification. Elam was sentenced to a prison term of 15 years to life.

After review of the record, we affirm the conviction.

{¶2} The victims were three female relatives, all under the age of 16 at the time

of the offenses: R.B., d.o.b. 1/1/02, her sister Ch.S., d.o.b. 12/6/03, and their aunt,

C.C.S., d.o.b. 12/6/81. Elam was indicted on September 5, 2014 on nine criminal counts.

{¶3} As to R.B., Elam was indicted for the following:

(1) Count 1: 2008, rape of a victim under the age of 10 pursuant to R.C.
2907.02(A)(1)(b);

(2) Count 2: 2008, kidnapping of a victim under the age of 13 for
purposes of engaging in sexual activity pursuant to R.C. 2905.01(A)(4);

(3) Count 3: 2008 disseminating matter harmful to juveniles pursuant to
R.C. 2907.31(A)(1);

(4) Count 4: 2009 - 2013, gross sexual imposition of a victim under the
age of 13 years pursuant to R.C. 2907.05(A)(4);

(5) Count 5: 2009 - 2013, disseminating matter harmful to juveniles
pursuant to R.C. 2907.31(A)(1); and
 (6) Count 6, 2013: gross sexual imposition of victim under the age of 13
years pursuant to R.C. 2907.05(A)(4).

{¶4} As to Ch.S., Elam was indicted for the following:

(7) Count 7: 2008 - 2009, gross sexual imposition of victim under the age
of 13 years pursuant to R.C. 2907.05(A)(4); and

(8) Count 8: 2008 - 2009, gross sexual imposition of victim under the age

of 13 years pursuant to R.C. 2907.05(A)(4).

{¶5} As to C.C.S., Elam was indicted for the following:

(9) Count 9: 1997, gross sexual imposition of victim at the age of 15 years
pursuant to R.C. 2907.05(A)(1).

{¶6} Counts 1 through 9, included sexually violent predator specifications

pursuant to R.C. 2941.148(A), and one count included a sexual motivation specification

under R.C. 2941.147(A).

{¶7} After dismissals of Counts 3, 4, 5, 6, and 8, the trial court was left with

Counts 1, 2, 7, and 9. Elam was found not guilty of Count 7, gross sexual imposition

under R.C. 2907.05(A)(4), relating to Ch.S., and not guilty of the sexually violent

predator specifications on the remaining counts. Elam was convicted on Count 1 of the

lesser included offense of gross sexual imposition under R.C. 2907.05(A)(4), a

third-degree felony, and Count 2, kidnapping, a first-degree felony under R.C.

2905.01(A)(4), with a sexual motivation specification, both as to R.B. Elam was also

convicted on Count 9, gross sexual imposition, R.C. 2907.05(A)(1), as to C.C.S.
 {¶8} At sentencing, Counts 1 and 2 merged, and the state elected to proceed on

Count 2, kidnapping. Count 2 was sentenced under the Adam Walsh Act with

imprisonment of 15 years to life. Elam was also classified as a Tier III offender subject

to a lifetime sex offender registration every 90 days. On Count 9, Elam received a

concurrent 18-month prison term, plus a mandatory five years of postrelease control.

II. FACTS

{¶9} Elam is the first cousin of T.S., the grandmother of victims R.B. and Ch.S.

(“Grandmother”), who testified first in the case. She is also the mother of victim C.C.S.

and has several adult children including daughters S.S., Ro.S., T.B. and son J.S. S.S.

is the mother of victims R.B. and Ch.S.

{¶10} Grandmother’s late mother, Anna, owned houses on East 110th, 113th,

and 112th Streets in the Union area. Elam has resided in the second floor unit of the

East 110th Street address since 1990. The family often gathered at the East 112th Street

location, and Elam was usually present, often playing with the children. Elam attended a

birthday party for Grandmother on January 11, 1997, at the East 112th Street address

where daughter Ro.S. resided.

{¶11} Victim C.C.S. testified that she remembers the 1997 incident as the day

“when I was almost sexually assaulted.” C.C.S. stated that after the party, she was alone

in the house with her cousin, sister Ro.B., brother J.S., and Elam between 11:00 p.m. to

midnight. C.C.S. fell asleep on the couch fully dressed, but “woke up startled,” with her

shirt pulled up, exposing her bra. Elam was licking her below her naval, above the
pubic area. Her pants were unzipped and underwear exposed. C.C.S. recalled Elam’s

brief laugh as she pushed Elam off of her, jumped up, and ran into the next room to get

into bed with her cousin. C.C.S. did not give Elam permission to touch her and did not

want him to. She did not recall seeing Elam expose his genitals.

{¶12} C.C.S. told her cousin, sister Ro.S., and Grandmother what had transpired.

C.C.S. testified that Grandmother telephoned Elam who could not recall anything except

walking home after the party. The other adults who attended the party said that Elam

had been drinking heavily and that he did not mean to do anything wrong. C.C.S.

believed Elam’s intent was to perform oral sex. C.C.S. never discussed the 1997

incident with nieces R.B. or Ch.S. until 2014, after the nieces reported sexual behavior by

Elam.

{¶13} In 2008, for approximately one year, C.C.S. resided with her sister T.B. on

the first floor of the East 110th house. Elam resided in the second floor unit. Several

times during that period, C.C.S. babysat for R.B. and Ch.S. She told S.S. to stop asking

Elam to babysit the girls and warned her not to have other children around Elam because

he was always around the children at family functions. Also in 2008, C.C.S. had a

discussion with someone who told her that Elam often threw teen parties and knew a

number of teenaged girls. The person told her that Elam bragged about his interest in oral

sex. C.C.S. testified that she saw Elam at various family functions after the 1997 party

but never talked with him.
 {¶14} During the winter of 2014, C.C.S.’s sister, T.B. contacted C.C.S. to tell

her that T.B.’s daughter was exhibiting sexual behaviors. The daughter said she learned

the behavior from cousins R.B. and Ch.S. C.C.S. telephoned her nieces and “went down

the list of people who I knew they had been around. It was about five people, and they

denied the first five, so when I asked them about Charles [Elam], did he do anything to

them, my niece [R.B.] hesitated.” R.B. confirmed that the behavior was learned from

Elam. R.B. also told C.C.S. that Elam had kissed her on the mouth.

{¶15} The next day, C.C.S. contacted the Cleveland Police Department’s Sex

Crimes Unit, informed them that she believed Elam had been molesting her nieces, and

that Elam attempted to sexually assault her when she was 15. The officer informed her

that it was not too late to file a report. C.C.S. filed her sexual assault report at the Fourth

District Police Station. She subsequently accompanied her sister S.S. and nieces R.B.

and Ch.S. to make their police report. C.C.S. did not file charges against Elam to

retaliate.

{¶16} J.S. testified that he was 14 years old at the time of the 1997 incident. He

was dozing on the couch just a few feet away from the chaise where his sister C.C.S. was

sleeping during the 1997 incident and observed:

[C.C.S.] was, well, she was laying down like she was sprawled out like this
with her arms up, and her shirt was like kind of like raised to her belly
button, and I saw [Elam] like sit down and put his foot on the lounge chair,
then he just rolled her shirt up to like her breast part, and he startled like
kissing all the way down to her waist to her pants, and then she like woke
up startled, and then she like did a move on him like a push. * * * He just
got up and like drowsy and walked out the patio door, the porch door,
sliding doors.
 {¶17} J.S. thought that Elam was drunk but was shocked at what he observed.

J.S. never told anyone and first discussed the incident with C.C.S. after the police got

involved.

{¶18} Grandmother testified that in 1997, after the party, C.C.S. told her “what

[Elam] did.” Grandmother stated that she never confronted Elam as others told her that

Elam had been drinking, and she found it difficult to believe that Elam would do

something like that to C.C.S. Grandmother does not think C.C.S. has ever gotten over it.

Grandmother was not sure which family members knew of the 1997 incident but, at some

point, her son J.S. told her that he had witnessed it.

{¶19} Victim R.B. testified that she and her sister Ch.S. visited the East 110th

house where Elam, her aunts C.C.S. and T.B., and T.B.’s young daughter resided. Elam

would give the girls coffee and candy and take them to the store. R.B. “snuck” up to

Elam’s unit to get coffee and candy during one visit. There were naked girls and guys

dancing on the television that R.B. described as “porn.” Elam was drinking a lot, and

there were a lot of beer cans. R.B. ate candy, went into the bedroom where she fell

asleep, and awakened to find her pants down and a red-eyed Elam licking her vagina.

Elam was not in the bedroom when R.B. watched televison and fell asleep.

{¶20} Elam grabbed R.B.’s arm and told her not to tell anyone when she stood

up to go downstairs to her aunt’s unit. R.B. could not recall what else was said. R.B.

went directly downstairs as her mother had arrived to pick her up. R.B. did not tell

anyone about it because she was embarrassed, but just recently told her mother and her
aunt C.C.S. At that time, C.C.S. told R.B. what Elam did to her when she was

younger.

{¶21} Victim Ch.S. also testified about visits to the East 110th home and that

Elam would let R.B., Ch.S. and their cousin have coffee and candy. During one visit,

Ch.S. sat on Elam’s lap and she felt something hard when he moved around. During

another visit, R.B. and Ch.S. had to use the restroom. Elam told them to go together, he

then entered after they exited, and then showed them his penis. Ch.S. did not tell anyone

about these experiences until she spoke with people at the hospital and police station.

On cross-examination, Ch.S. denied telling the police that she felt something hard when

sitting on Elam’s lap.

{¶22} T.B. testified that she lived at the house on East 110th from 2007 to

2009, and that her nieces R.B. and Ch.S. came to the house frequently for babysitting and

visits. On one occasion, T.B. called the name of R.B., who exited Elam’s bedroom

followed by Elam. Elam said he was making coffee for R.B., but no coffee was made.

{¶23} Several years later, T.B. was living in Virginia Beach. T.B. discovered her

7-year-old daughter in bed with a little boy who T.B. was babysitting. The covers were

pulled over them and her daughter was on top of the boy. The daughter said she learned

the behavior from cousins, R.B. and Ch.S. T.B. telephoned her sisters S.S. and C.C.S.,

advised them of the situation, and requested that they speak with R.B. and Ch.S.

{¶24} S.S. testified that she has four children. Daughters R.B. and Ch.S. are

the oldest, and they have two younger brothers. S.S. resided in Rocky River from 2006
to 2009. R.B. and Ch.S. visited T.B.’s home at East 110th often. They frequently

spent the night on weekends and during the summer months.

{¶25} S.S. was aware of C.C.S.’s concerns about leaving R.B. and Ch.S. at the

house because of Elam, so she instructed the girls to stay where their aunt could see them.

The girls enjoyed visiting the family, and S.S. was aware that Elam often gave them

candy.

{¶26} S.S. first learned of her daughters’ sexual behaviors in December 2013

when contacted by sisters T.B. and C.C.S. C.C.S. accompanied S.S. and her daughters

to the police station to make the report, and also to the hospital examination; however, the

police met with them separately. S.S. and C.C.S. did not tell the girls what to say, only

to tell the truth about everything that happened.

{¶27} S.S. never observed any reluctance by her daughters to interact with Elam,

but she did notice that R.B. became unusually quiet around him.

Prior to this situation, S.S. had no reason to be upset or angry with Elam.

{¶28} Heather Lamfranchi (“Lamfranchi”), a social worker at Akron’s Children’s

Hospital, testified over defense objections to what she was told by R.B. and Ch.S. The

trial court accepted the state’s position that the evidence was admissible for purposes of

the medical diagnosis and treatment.

{¶29} Lamfranchi said R.B. told her about the 2008 bedroom incident, correctly

identified body parts on a diagram, and said that Elam would have her and her cousin

watch “nasty” movies. Elam would also kiss her on the lips when he saw her.
Lamfranchi shared the information with the nurse practitioner for purposes of the medical

examination. Lamfranchi also had a discussion with Ch.S. who shared her experience of

sitting on Elam’s lap. Finally, Lamfranchi responded, over objection, to the question of

whether children typically lie about sexual abuse. Lamfranchi responded that it rarely

occurred.

{¶30} Summit County Children Services social worker, Jennifer Dougherty

(“Dougherty”), conducted a home visit and talked separately with R.B., Ch.S., and their

mother. Dougherty stated, over defense objection, that “the girls both did make

disclosures of sexual abuse, and I found them to be credible in those disclosures.”

{¶31} Kay Smith (“Smith”), the sister of Grandmother and Elam’s first cousin,

testified that Elam was very helpful to the family and loyally assisted with caring for

Smith’s sick mother Anna at her home until she died in 2009. Elam also assists with

maintenance of the houses that Smith inherited from her mother, including the home on

East 110th.

{¶32} Sharon Ross (“Ross”), a first cousin to Smith, Grandmother, and Elam,

frequently visited the house on East 110th where she observed S.S. visit with daughters

R.B. and Ch.S. during the 2008 time frame. Ross maintained that S.S. often left R.B.

and Ch.S. with Elam for babysitting, sometimes overnight, and occasionally brought the

children over to Ross’s for meals. Ross attended family gatherings where Elam always

hugged and played with the boys and girls. Ross did not see Elam engage in any

unusual activity with the children, but she did observe him drinking around them.
 {¶33} The defense concluded with the testimony of Elam’s cousin, Carolyn Elam

(“Carolyn”), who is a year or two younger than Elam. Carolyn operated a home-based

child care and began providing services to R.B., Ch.S., and their younger brothers, around

2007. S.S. dropped the children off on Sunday evening, and they remained with Carolyn

until S.S. picked them up on Friday night. This arrangement continued until R.B. and

Ch.S. began attending school. Elam did not visit Carolyn’s home when she was caring for

R.B. and Ch.S., and she never observed any stress in Elam’s relationship with the children

on other occasions.

{¶34} On September 5, 2014, Carolyn moved into the house where her late aunt

Anna, mother of Grandmother, previously resided and where Elam was then residing.

Shortly after Carolyn moved in, S.S. arrived at the house with her four children and asked

if Carolyn would keep the children while she ran errands. Elam was not there at the

time, and according to Carolyn, S.S. did not know that Carolyn lived there. Carolyn

concluded that S.S. brought the children so that Elam could babysit. S.S. left the children

with Carolyn, and when Elam returned, Carolyn did not observe any fear on the part of

the children.

III. ASSIGNMENTS OF ERROR

{¶35} Elam presents four assignments of error:

I. The State failed to present sufficient evidence to sustain a conviction
against Appellant.

II. Appellant’s convictions are against the manifest weight of the
evidence.
 III. Appellant was denied a fair trial by the witness’ improper comments
while testifying.

IV. Appellant was denied effective assistance of counsel as guaranteed by
Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth
Amendments of the U.S. Constitution.

IV. LAW AND ANALYSIS

A. Weight and Sufficiency of the Evidence.

{¶36} We combine the first and second assignments of error for purposes of

efficiency, challenging the sufficiency, and manifest weight of the evidence.

1. Standard of Review

{¶37} The Ohio Supreme Court has explained that, “[t]he legal concepts of

sufficiency of the evidence and weight of the evidence are both quantitatively and

qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). “Sufficiency of the evidence is a test of adequacy as to whether the evidence is

legally sufficient to support a verdict as a matter of law, but weight of the evidence

addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. An appellate

court, “may determine that a judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is against the weight of the

evidence.” Thompkins at 387.

a. Sufficiency of the Evidence
 {¶38} The question of “whether the evidence is legally sufficient to sustain a

verdict is a question of law.” State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148

(1955). Thompkins at 386. It is, “an inquiry about due process, * * * the resolution of

which does not allow the court to weigh the evidence.” State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶39} In a sufficiency inquiry, an appellate court does not assess whether the

state’s evidence is to be believed but whether, if believed, the evidence admitted at trial

supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682,

2009-Ohio-3375, ¶ 25, citing Thompkins at 387.

“[T]he relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus , following Jackson v. Virginia (1979), 443
U.S. 307, 99 S.Ct. 271, 61 L.Ed.2d 560.

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77. The

weight to be given the evidence and the credibility of the witnesses are primarily for the

trier of fact. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.

b. Weight of the Evidence

{¶40} After consideration of whether the evidence is sufficient as a matter of

law, a manifest weight inquiry looks at whether the evidence was substantial enough for a

jury to reasonably conclude that all of the elements of the alleged crime have been proved

beyond a reasonable doubt. We sit “as a ‘thirteenth juror.’” Thompkins at 387, quoting

Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). We review the
entire record, consider the credibility of the witnesses, weigh the evidence and all

reasonable inferences,

and determine whether 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.

Martin at 175; Leonard at 68.

{¶41} Weight of the evidence concerns the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

“It indicates clearly to the jury that the party having the burden of proof will
be entitled to their verdict, if, on weighing the evidence in their minds, they
shall find the greater amount of credible evidence sustains the issue which
is to be established before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.” (Emphasis added.) Black’s
[Law Dictionary] 1594 [6 Ed.1990]

Thompkins at 387.

2. Discussion

A. C.C.S.

{¶42} C.C.S. was 15 years of age at the time of the 1997 incident. Elam was

found guilty of gross sexual imposition pursuant to R.C. 2907.05(A)(1):

(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:

(1) The offender purposely compels the other person, or one of

the other persons, to submit by force or threat of force.

{¶43} Elam’s recitation of C.C.S.’s testimony, in support of the argument that
the conviction is not supported by the evidence, is that C.C.S. was sleeping on a chaise

lounge, awakened, startled, with her t-shirt pulled up and bra exposed, with Elam licking

her belly button right above her pubic area. The testimony of J.S. confirms, in detail,

C.C.S.’s testimony regarding the events of the night and Elam’s behavior.

{¶44} Elam argues that this testimony does not support the element of force or

threat of force required to establish gross sexual imposition. However, “[t]his court

has held that the manipulation of a sleeping victim’s clothing in order to facilitate sexual

conduct constitutes force under R.C. 2901.01(A)(1) even though such force requires only

minimal physical exertion.” State v. Walker, 8th Dist. Cuyahoga No. 96662,

2011-Ohio-6645, ¶ 20. This court has also held that “[s]exual contact, an element of

gross sexual imposition, means any nonconsensual physical touching, even through

clothing, of the body of another. State v. Ackley, 120 Ohio Misc.2d 60, 2002-Ohio-6002,

778 N.E.2d 676.” State v. Jones, 8th Dist. Cuyahoga No. 87411, 2006-Ohio-5249, ¶ 15.

{¶45} Thus, we find Elam’s contention on the issue of sufficiency and manifest

weight to be without merit. The first and second assignments of error are overruled as to

C.C.S.
 b. R.B.

{¶46} The convictions relating to R.B. are for gross sexual imposition (R.C.

2907.05(A)(4)) and kidnapping (R.C. 2905.01(A)(4)) with a sexual motivation

specification (R.C. 2941.147):

2907.05 Gross sexual imposition.

(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.

R.C. 2905.01(A)(4) Kidnapping.

(A) No person, in the case of a victim under the age of
thirteen, shall remove another from the place
where the other person is found or restrain the
liberty of the other person, for any of the
following purposes:

***

(4) To engage in sexual activity, as defined in section 2907.01 of the
Revised Code, with the victim against the victim’s will.

R.C. 2941.147 Specification of sexual motivation:

(A) Whenever a person is charged with an offense that is a violation of
section 2903.01, 2903.02, 2903.11, or 2905.01 of the Revised Code, a
violation of division (A) of section 2903.04 of the Revised Code, an attempt
to violate or complicity in violating section 2903.01, 2903.02, 2903.11, or
2905.01 of the Revised Code when the attempt or complicity is a felony, or
an attempt to violate or complicity in violating division (A) of section
2903.04 of the Revised Code when the attempt or complicity is a felony, the
 indictment, count in the indictment, information, or complaint charging the
offense may include a specification that the person committed the offense
with a sexual motivation. * * *

(B) As used in this section, “sexual motivation” has the same meaning as
in section 2971.01 of the Revised Code.

{¶47} R.B. was ten years of age at the time of the occurrence. She was asleep

while he performed cunnilingus, and he grabbed her arm when she awakened and got up

to leave, telling her not to tell anyone. Elam offers again that the evidence is lacking to

support these convictions, that there is no evidence that Elam removed R.B. from any

place, and no evidence that he restrained R.B. to engage in sexual activity. In fact, Elam

argues that the “grabbing” of the arm occurs after any sexual act, so there can be no

restraint for purposes of sexual activity. Further, the grabbing is not sufficient to qualify

as a restraint of R.B.’s liberty.

{¶48} As to the length and manner of the restraint, this court has opined:

Ohio law is clear that “[a]n offense under R.C. 2905.01 does not depend on
the manner in which an individual is restrained. * * * Rather, it depends
on whether the restraint ‘is such as to place the victim in the offender’s
power and beyond immediate help, even though temporarily.’ * * * The
restraint ‘need not be actual confinement, but may be merely compelling the
victim to stay where he is.’” State v. Mosley, 178 Ohio App.3d 631,
2008-Ohio-5483, 899 N.E.2d 1021, citing State v. Wilson, 10th Dist.
Franklin No. 99AP-1259, 2000 Ohio App. LEXIS 5057 (Nov. 2, 2000).

State v. Wright, 8th Dist. Cuyahoga No. 92344, 2009-Ohio-5229, ¶ 24.

{¶49} A sexual motivation specification “requires that the state show that the

underlying offense was committed with ‘a purpose to gratify the sexual needs or desires

of the offender.’” State v. Dove, 8th Dist. Cuyahoga No. 101809, 2015-Ohio-2761, ¶ 38,
quoting R.C. 2941.147. In this case, the underlying offense is kidnapping and the

question is whether, after the sexual conduct took place, Elam’s brief holding of the

victim’s arm to restrain her departure while telling her not to tell anyone what happened,

and a few other words she could not recall, constitutes a restraint of liberty “for the

purpose of” engaging in sexual activity against the victim’s will. We find that it does.

{¶50} “R.C. 2905.01(A)(4) requires only that the restraint or removal occur for

the purpose of nonconsensual sexual activity.” State v. Davis, 116 Ohio St.3d 404,

2008-Ohio-2, 880 N.E.2d 31, ¶ 196; Dove at ¶ 37. “[T]he kidnapping statute punishes

certain removal or restraint done with a certain purpose.” (Emphasis added.) State v.

Cope, 12th Dist. Butler No. CA2009-11-285, 2010-Ohio-6430, ¶ 68. R.C. 2941.147, the

sexual motivation specification, requires that the state show that the underlying offense

was committed with “a purpose to gratify the sexual needs or desires of the offender.”

R.C. 2971.01(J). State v. Price, 8th Dist. Cuyahoga No. 99058, 2013-Ohio-3912, ¶ 43.

{¶51} R.B. testified that she, “got up * * * as soon as she woke up,” tried to

leave and go downstairs, and Elam grabbed her arm and said, “something, don’t tell and

some other words that I don’t remember.” R.B. did not tell anyone what happened

because she “was embarrassed.”

{¶52} As summarized by the state:

[O]nce [R.B.] woke up to [Elam] licking her, she got out of the bed, was
trying to get out of the room, and that’s when the defendant stopped her,
grabbed her arm and told her specifically not to tell anyone, and within that
time frame of him grabbing the arm and telling her not to tell anyone, that
was when her liberty was restrained meeting the elements for kidnapping.
 {¶53} The trial court stated it was focused solely on the grabbing of the arm in

deliberating the kidnapping charge and its construction of R.B.’s testimony was that R.B.

was:

[W]aking up, making a movement and immediately being grabbed. And this

is all taking place in a matter of just seconds, so I just don’t think that under

Ohio law the Defendant can nicely parse, first I was engaging in sexual

activity, then my victim make it stopped because she moved, then I grabbed

an arm; but now that grabbing of the arm wasn’t for the purpose of sexual

activity, it was for the purpose of having her listen to what I’m about to tell

her.

(Tr. 726.)

{¶54} The trial court further explained:

I mean, I just don’t think we can parse this stuff happening, because, let’s
face it, if he had grabbed her arm and she would have responded by simply
going limp and laying back down again, okay, then we would be
interpreting that grab for the purpose of sexual activity, wouldn’t we?

But the fact that he decided to end it once she moved, I’m sorry, I just don’t
think we can cut the baby in that — parse that up when things are
happening second by second. * * *

But, let’s face it let’s take another case. Let’s say she wakes up, he’s
engaging in sexual activity, she gets up and runs out of the room. If that
was the evidence, could you sustain a kidnapping? There’s no grabbing of
the arm. He found his victim in the bedroom sleeping, he did what he did,
the minute she decided to get up and leave, he let her get up and leave.
There would be no kidnaping.
(Tr. 726 and 727.) See, e.g., In re A.K., 8th Dist. Cuyahoga No. 97188,

2012-Ohio-1767, where the appellant refused to allow the victim to leave the room after

the act.

{¶55} We cannot say that the trier of fact in this case truly lost its way based on

our review of the entire record. Therefore, we do not find that the trial court’s

assessment was an abuse of discretion and was not supported by the sufficiency or weight

of the evidence. “The fact that the evidence is subject to different interpretations does

not render the conviction against the manifest weight of the evidence.” State v. Adams,

2d Dist. Greene Nos. 2013 CA 61 and 2013 CA 62, 2014-Ohio-3432, ¶ 24.

{¶56} Appellant’s first and second assignments of error as they relate to R.B. are

overruled. The trial court’s findings are affirmed.

B. Improper Comments by Witness

1. Standard of Review

{¶57} We have held that:

The admission or exclusion of evidence rests within the sound discretion of
the trial court and will not be overturned absent an abuse of that discretion.
A trial court has broad discretion to determine the admissibility of lay
witness opinion testimony. Accordingly, a reviewing court will not disturb a
trial court’s determination on the admissibility of lay witness opinion
testimony absent an abuse of discretion. An abuse of discretion connotes
more than an error in law or judgment; it suggests that a decision is
unreasonable, arbitrary, or unconscionable.

State v. Allen, 8th Dist. Cuyahoga No. 92482, 2010-Ohio-9, ¶ 46.

2. Discussion
 {¶58} Elam argues here that two witnesses made improper comments depriving

Elam of a fair trial. First, the testimony by Lamfranchi, the Akron Children’s Hospital

Emergency Department social worker that, in her experience, children “vary rarely” lie

about sexual abuse. The second witness was Dougherty, the Intake Social Worker for

Summit County Children Services who, when asked why she indicated sexual abuse in

the case disposition, replied, “the girls both did make disclosures of sexual abuse, and I

found them to be credible in those disclosures.”

{¶59} Generally, expert witnesses may not testify regarding the truth of

statements made by a child declarant, nor may a lay person testify as to the truthfulness of

another witness. Allen at ¶ 48-49, citing State v. Boston, 46 Ohio St.3d 108, 545

N.E.2d 1220 (1989); and Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31. The

question is whether the errors were harmless:

Pursuant to Crim.R. 52(A), “any error, defect, irregularity, or variance
which does not affect substantial rights shall be disregarded.” In order to
find an error harmless, a reviewing court must be able to declare a belief
that the error was harmless beyond a reasonable doubt. State v. Lytle (1976),
48 Ohio St.2d 391, 403, 358 N.E.2d 623. A reviewing court may overlook
an error where the admissible evidence comprises “overwhelming” proof of
a defendant’s guilt. State v. Williams (1983), 6 Ohio St.3d 281, 290, 6 Ohio
B. 345, 452 N.E.2d 1323. “Where there is no reasonable possibility that
unlawful testimony contributed to a conviction, the error is harmless and
therefore will not be grounds for reversal.” State v. Brown, 65 Ohio St.3d
483, 485, 1992 Ohio 61, 605 N.E.2d 46;

Allen at ¶ 51.

{¶60} R.B. testified about Elam’s sexual activities and was able to recount

details about the day that the incident occurred such as what was on television when she
went upstairs to Elam’s residence in the two family home. She remembered that she had

candy that day and later fell asleep, and also recalled that Elam had a lot of beer cans and

“he was drinking a lot at the table.”

{¶61} R.B. testified that she awakened to Elam licking her “private part” in the

front and that she was referring to her vagina. R.B. looked at Elam when she awakened,

and at first, “he was just — he was still doing it.” It was also the testimony of R.B. that

what she noticed about Elam’s face at that moment was that his eyes were red. R.B.

described how she was related to Elam, various family events, and who she ultimately

told about the incident.

{¶62} This court finds that Elam was not prejudiced by the admission of the

statements of the social workers. The trial judge, as the trier of fact in the bench trial,

“was able to perceive [R.B.’s] credibility and decide for” himself whether R.B. was being

truthful. See Allen, 8th Dist. Cuyahoga No. 92482, 2010-Ohio-9 at ¶ 52, citing State v.

Burchett, 12th Dist. Preble Nos. CA2003-09-017 and CA2003-09-018, 2004-Ohio-4983,

¶ 20, citing State v. Proffitt, 72 Ohio App.3d 807, 596 N.E.2d 527 (12th Dist.1991).

{¶63} The trial judge was able to listen to and observe the witnesses. Based on

the totality of the circumstances, the trial court formed an opinion as to the truthfulness of

the testimony in this case. Thus, we find that any error relating to the statement by

Lamfranchi was harmless. The third assignment of error is overruled.
 C. Ineffective Assistance of Counsel

1. Standard of Review

{¶64} An appellant must show, in order to substantiate a claim of ineffective

assistance of counsel, that: (1) “counsel’s performance was deficient and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial.” State v.

Trimble, 122 Ohio St.3d 297, 310, 2009-Ohio-2961, 911 N.E.2d 242, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Judicial scrutiny of

defense counsel’s performance must be highly deferential.” Strickland at ¶ 15. In Ohio,

there is a presumption that a properly licensed attorney is competent. State v. Calhoun,

86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905.

2. Discussion

{¶65} The fourth assignment of error posits that Elam’s trial counsel was

ineffective for failure to move to bifurcate the cases of R.B. and C.C.S. In order to

prevail here, Elam must show by a reasonable probability that he was prejudiced and that,

but for counsel’s errors, the outcome of the trial would be different. In re A.K., 8th Dist.

Cuyahoga No. 97188, 2012-Ohio-1767, at ¶ 24. “Further, counsel’s performance is

evaluated in light of an attorney’s discretion to develop appropriate trial strategies

according to the attorney’s independent judgment, given the facts of the case, at least

some of which may not be reflected in the trial record.” State v. James, 8th Dist.

Cuyahoga No. 102604, 2015-Ohio-4987, ¶ 4.
 {¶66} Where the requirements of Crim.R. 8(A) are satisfied, the law favors

joining multiple offenses in a single trial. State v. Ferrell, 8th Dist. Cuyahoga No.

100659, 2014-Ohio-4377, ¶ 38. However, a trial court may grant severance if it appears

the defendant would be prejudiced by the joinder. Crim.R. 14; State v. Diar, 120 Ohio

St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 95. Further:

“A trier of fact is believed capable of segregating the proof on multiple

charges when the evidence as to each of the charges is uncomplicated.”

State v. Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33,

citing State v. Torres, 66 Ohio St.2d 340, 343-344, 421 N.E.2d 1288 (1981).

Joinder is therefore not prejudicial when the evidence is direct and

uncomplicated and can reasonably be separated as to each offense. Id.

State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 22.

{¶67} We find that, in this case, the evidence was direct, uncomplicated and

can reasonably be separated as to each offense. The trial court issued a finding of guilt

on three of the nine counts. Three identified victims were involved; however, the counts

upon which guilt was determined involved only two of the victims. The testimony by

those two victims, R.B. and C.C.S., was clear and detailed. Each victim was able to

recount the incidents with clarity. In the case of C.C.S. and the 1997 incident, J.S.

provided an eyewitness description of the sexual encounter from his view point of only

seven- to eight- feet away.

{¶68} As the state points out, the joinder of the trials also allowed defense
counsel to argue that C.C.S. influenced the testimony of R.B. and that R.B.’s recitation of

facts should be viewed with that in mind. Defense counsel was presumptively

competent in determining that joinder was in the best interests of his client. State v.

James, supra.

{¶69} “In fact, the [trial court’s] not guilty verdicts on several of the charges

demonstrated the [trial court’s] ability to apply the evidence separately to each offense.”

State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, ¶ 69.

We conclude that joinder was not prejudicial; therefore, Elam is unable to demonstrate

deficiency and prejudice under Strickland.

{¶70} Appellant’s fourth assignment of error is overruled.

V. CONCLUSION

{¶71} The trial court’s order in this case is affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

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

the Rules of Appellate Procedure.

_________________________________________
ANITA LASTER MAYS, JUDGE
LARRY A. JONES, SR., A.J., CONCURS;
TIM McCORMACK, J., CONCURS IN JUDGMENT ONLY