State v. R.L.R.

[Cite as State v. R.L.R., 2020-Ohio-4577.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 18AP-971
(C.P.C. No. 17CR-5510)
v. :

[R.L.R.], : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on September 24, 2020

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.

On brief: Samuel H. Shamansky Co., L.P.A., Samuel H.
Shamansky, Donald L. Regensburger, and Colin E. Peters,
for appellant. Argued: Donald L. Regensburger.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
{¶ 1} R.L.R., defendant-appellant, appeals from a judgment of the Franklin
County Court of Common Pleas, in which the court found him guilty of six counts of rape,
which are violations of R.C. 2907.02 and first-degree felonies; two counts of kidnapping
with sexual-motivation specifications, which are violations of R.C. 2905.01 and first-
degree felonies; and disseminating matter harmful to juveniles, which is a violation of
R.C. 2907.31 and a fourth-degree felony.
{¶ 2} In April 2017, K.S., who was seven years old at the time, moved into the
home of appellant and his girlfriend, C.S., who is K.S.'s aunt and the sister of K.S.'s
mother. K.S.'s mother had gone to jail and was then hospitalized with meningitis. K.S.
No. 18AP-971 2

testified that, not long after moving into appellant's home, appellant sexually abused her
on several occasions in his bedroom, the specifics of which will be discussed in our
treatment of appellant's assignments of error, and showed her pornographic videos on his
cell phone.
{¶ 3} During a birthday party for K.S. in August 2017, K.S.'s mother got into an
argument with C.S. and appellant. On August 12, 2017, K.S. moved into her mother's
home, which she shared with her boyfriend, R.K. Thereafter, R.K. told K.S.'s mother that
K.S. had engaged in sexual behavior with two of his minor grandchildren. On
September 6, 2017, while K.S.'s mother and R.K. were working as part of the cleaning
crew at The Ohio State University Stadium, and K.S. was helping them, K.S.'s mother
spoke to K.S. about the sexual behavior, and K.S. revealed that appellant had touched her,
causing K.S.'s mother to have a seizure. After the seizure, they started to drive to
appellant's home to confront him, but R.K. contacted police, and they met with police at a
park to discuss the matter.
{¶ 4} On September 13, 2017, a social worker interviewed K.S. at the Children
Assessment Center ("CAC") at Nationwide Children's Hospital, and K.S. underwent a
medical examination.
{¶ 5} On October 10, 2017, appellant was indicted on six counts of rape, two
counts of kidnapping, and one count of disseminating matter harmful to juveniles. The
kidnapping charges included sexual-motivation specifications. On October 29, 2018, a
jury trial was held. At the trial, both parties called witnesses, and K.S. testified. On
November 2, 2018, the jury found appellant guilty on all counts. On November 19, 2018,
the trial court sentenced appellant to 15 years to life in prison on each of the rape counts,
to be served concurrently; 15 years to life in prison on each of the kidnapping counts, to be
served concurrently to one another but consecutive to the rape counts; and 17 months in
prison on the count of dissemination of material harmful to a minor, to be served
consecutively to all other counts; for a total sentence of 31 years and five months to life in
prison.
{¶ 6} Appellant appeals the judgment of the trial court, asserting the following
four assignments of error:
[I.] THE TRIAL COURT ERRED BY PERMITTING THE
ALLEGED VICTIM'S RECORDED HEARSAY STATEMENTS
No. 18AP-971 3

TO BE PRESENTED TO THE JURY, IN VIOLATION OF HIS
RIGHTS AS GUARANTEED BY THE UNITED STATES AND
OHIO CONSTITUTIONS.

[II.] THE TRIAL COURT COMMITTED PLAIN ERROR BY
FAILING TO PROPERLY INSTRUCT THE JURY AS TO THE
ESSENTIAL ELEMENTS OF OHIO'S SEXUAL
MOTIVATION SPECIFICATION, IN VIOLATION OF
APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR
AND IMPARTIAL JURY AS GUARANTEED BY THE
UNITED STATES AND OHIO CONSTITUTIONS.

[III.] APPELLANT'S CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE OHIO CONSTITUTION.

[IV.] THE PROSECUTION'S QUESTION REGARDING
APPELLANT'S PURPORTED CRIMINAL RECORD
CONSTITUTED PROSECUTORIAL MISCONDUCT AND
DEPRIVED APPELLANT OF A FAIR TRIAL, IN VIOLATION
OF HIS RIGHTS AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.

{¶ 7} Appellant argues in his first assignment of error the trial court erred when it
permitted K.S.'s recorded hearsay statement from the interview at CAC to be presented to
the jury, in violation of appellant's constitutional rights. "Ordinarily, we review a trial
court's hearsay rulings for an abuse of discretion." State v. McKelton, 148 Ohio St.3d 261,
2016-Ohio-5735, ¶ 97, citing State v. Hymore, 9 Ohio St.2d 122, 128 (1967). Absent a clear
showing the court abused its discretion in a manner that materially prejudices a party, a
reviewing court will not disturb a ruling on the admission of evidence. State v. Phelps,
10th Dist. No. 14AP-4, 2015-Ohio-539, ¶ 27.
{¶ 8} Hearsay is defined as a "statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Evid.R. 801(C). Generally, hearsay is not admissible unless an exception
applies. Evid.R. 802. "Evid.R. 803 is one such rule which permits the admission of certain
hearsay statements even though the declarant is available as a witness." Dayton v. Combs,
94 Ohio App.3d 291, 300 (2d Dist.1993). In the present case, the trial court relied on one
of these exceptions—Evid.R. 803(4)—in admitting the potentially hearsay statement.
No. 18AP-971 4

Pursuant to Evid.R. 803(4) "[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" are excepted from the hearsay
rule. "The test for admissibility is whether the subject matter of the statements is
reasonably pertinent to diagnosis or treatment." State v. Nasser, 10th Dist. No. 02AP-
1112, 2003-Ohio-5947, ¶ 55.
{¶ 9} Here, appellant argues the entire recorded statement admitted into
evidence at trial and provided by K.S. to Kari Wilkinson, a social worker who interviewed
K.S. at CAC, constituted hearsay. During the interview, K.S. indicated appellant had put
his penis in her anus and vagina, licked her vagina, and showed her pornographic videos
on his phone. She also said his penis had a tattoo on it, nasty things would always happen
in her aunt's room, appellant tried to be "nasty" with her in her cousins' room, appellant
would get partially unclothed, appellant would only pull her pants and underwear down,
appellant would cover her mouth and call her names, they watched pornographic movies
on appellant's cell phone on Pornhub.com, and appellant had a lock on the top of his
bedroom door that he would lock when he abused her.
{¶ 10} After appellant's counsel objected to the interview at trial, the court found it
was permissible under Evid.R. 803(4). However, appellant asserts the trial court then
stated that the disputed portions of the interview were admissible because they were
"relevant" to the mental health recommendations. Appellant argues the test under Evid.R.
803(4) is not the same as permitting statements that are "relevant" or "related" to medical
or mental health diagnosis or treatment. Appellant maintains the trial court's finding is
not consistent with the following two-part test for admissibility under Evid.R. 803(4) this
court set forth in State v. Clary, 73 Ohio App.3d 42, 52 (10th Dist.1991): (1) whether the
declarant's motive is consistent with that of a patient seeking treatment, and (2) whether
it is reasonable for the physician to rely on the information in diagnosis or treatment.
Appellant contends that Evid.R. 803(4) does not render all medically related statements
hearsay exceptions, but only those made by the declarant for the purpose of medical
treatment or diagnosis, and many of the factual claims made by K.S. pertained to guilt
without any indication they were also reasonably related to medical or mental health
No. 18AP-971 5

diagnosis or treatment. Appellant indicates that, although he mainly takes issue with the
statements concerning his tattoo and the lock on the bedroom door, which the trial court
found were relevant to mental health recommendations, he contends that details about
the location of the abuse, their relative states of undress during the incidents, and the
source of pornography on appellant's phone also pertain solely to guilt and not medical
treatment.
{¶ 11} We disagree with appellant's arguments and find the trial court did not
abuse its discretion when it admitted the interview as evidence. Initially, appellant's
contention that the prosecutor was required to show, pursuant to Clary, that K.S.'s motive
was consistent with that of a patient seeking treatment is without merit. In State v. Dever,
64 Ohio St.3d 401, 409 (1992), the court rejected reading a "rigid motivation
requirement" into Evid.R. 803(4), given that "a young child's statements to a doctor in the
course of a medical examination will virtually never be admissible under that rule." Id.
"Once the child is at the doctor's office, the probability of understanding the significance
of the visit is heightened and the motivation for diagnosis and treatment will normally be
present." Id. at 410. "In many situations, the statements of young children are sufficiently
trustworthy and can appropriately be admitted pursuant to Evid.R. 803(4)." Id.
Notwithstanding, here, the record shows that K.S. knew she was in a medical setting. The
conversations between Wilkinson and K.S. regarding the purpose of her being at CAC
referred several times to the term "doctor," and she explained why her mother had
brought her to the "doctor" that day. Therefore, to the extent that appellant argues the
prosecutor did not show that K.S.'s motive was consistent with a patient seeking
treatment, we reject such contention.
{¶ 12} With regard to appellant's argument that many of the factual claims made
by K.S. in the recorded interview pertained to guilt without any indication they were also
reasonably related to medical or mental health diagnosis or treatment, appellant only
specifically contests two of the factual claims: (1) appellant used a lock at the top of the
door while they were in the bedroom, and (2) appellant had a tattoo on his penis.
{¶ 13} In State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, the Supreme
Court of Ohio noted the dual purpose of an interviewer at a children's advocacy center.
The court explained the purpose of a children's advocacy center is to provide a
No. 18AP-971 6

comprehensive, multidisciplinary response to allegations of child abuse to avoid multiple
interviews of the child. Children's advocacy centers coordinate the interview to include
professionals from multiple agencies, including law-enforcement professionals,
prosecutors, medical and mental health personnel, and child advocates. To ensure that
the child victim goes through only one interview, the interviewer must elicit as much
information from the child as possible in a single interview and must gather the
information needed by each team member. Thus, the interview serves dual purposes:
(1) to gather forensic information to investigate and potentially prosecute a defendant for
the offense, and (2) to elicit information necessary for medical diagnosis and treatment of
the victim.
{¶ 14} In the present case, with regard to K.S.'s statements regarding the tattoos on
appellant's penis, the following conversation took place between Wilkinson and K.S.:
Q. * * * Tell me why your mom brought you to the doctor
today.

A. Okay. Why my mommy brought me to the doctor today --

Q. Uh-huh.

A. -- is because this guy named [R.L.R.], he, like, when I was
living with my aunt, he was being nasty to me and all of that
stuff. And he has a tattoo on his thing. And he was being
nasty to me after my aunt went to work.

(Tr. Vol. III at 309.)

{¶ 15} From the above, it is clear that, at least to K.S., the tattoo was part of the
reason she was seeing the doctor at CAC. She mentioned the tattoo in her initial response
to why she was seeing the doctor. Thus, it is apparent that K.S. knew she was in a medical
setting when she made the statement about the tattoo on appellant's penis. See, e.g., State
v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 55 (evidence suggested that child knew
she was in a medical setting at the time she disclosed information about the defendant to
social worker at a child maltreatment clinic).
{¶ 16} The trial court found K.S.'s statements regarding the tattoo were admissible
because they were pertinent to a mental health diagnosis. Medical diagnosis under
Evid.R. 803(4) includes mental health. In re S.A., 12th Dist. No. CA2017-07-092, 2017-
No. 18AP-971 7

Ohio-8792, ¶ 41. Here, Wilkinson's testimony supported the finding that K.S.'s statements
regarding the tattoo served to aid in K.S.'s mental health assessment. Wilkinson stated
that:
A. Actually, you know, medical diagnosis encompasses
medical, mental health. So that tattoo on the private part
could trigger something in that child. So for her mental
health, I mean, it would be important to gather that
information.

As far as medical reasons, you could ask the doctor about if
there is any reason why that would be important for her. But
in terms of mental-health-wise, I mean, seeing a tattoo on a
private part could be triggering for that child and she could
have a traumatic reaction, yes.

(Tr. Vol. III at 346-47.) As plaintiff-appellee, State of Ohio, points out, the fact that K.S.
responded to Wilkinson's question about why she was seeing a doctor that day by
commenting about the tattoo demonstrates that the tattoo did, in fact, have a significant
mental health impact on K.S.
{¶ 17} Furthermore, beyond the mental health relevancy of the tattoo, the
existence of the tattoo also served as a basis for medical treatment and diagnosis. That
K.S. was aware of the tattoo on appellant's penis helped doctors determine which part of
appellant's body K.S. had contact with. As quoted above, when asked why she was seeing
the doctor the day of the interview, K.S. responded that appellant had a tattoo on "his
thing." Precisely which part of his body was "his thing" is vitally important to medical
diagnosis and treatment. Wilkinson testified that the identification of the private parts
and location of the tattoo were important for medical purposes because "she was saying,
'private parts.' I just wanted to make sure, first of all, that I knew which private part she
was talking about that the tattoo was on, because men have more than one private part.
And then I did ask her, yes, where on the private part it was." (Tr. Vol. III at 348.) Thus,
K.S.'s statements about the tattoo on appellant's private parts was pertinent to both K.S.'s
medical and mental health diagnosis and treatment and, thus, admissible pursuant to
Evid.R. 803(4).
{¶ 18} With regard to the lock on appellant's bedroom door and K.S.'s statement
that appellant locked the door when he abused her, appellant contends these statements
No. 18AP-971 8

were not for medical diagnosis or treatment. The Supreme Court has before found that a
child-victim's statements to counselors and social workers regarding the perpetrator's
locking the door were admissible as pertinent to medical treatment under Evid.R. 803(4).
See Muttart at ¶ 16-19 and ¶ 60-64 (statements to social worker and therapist that
defendant locked the bathroom door before sexually abusing the child were made in
furtherance of medical treatment and admissible pursuant to Evid.R. 803(4)). However,
the Supreme Court has also found such statements are inadmissible under Evid.R.
803(4), as being more for investigative purposes. See Arnold at ¶ 34 (statement to social
worker at child advocacy center that defendant locked door before sexually abusing child
primarily served a forensic or investigative purpose). Here, given our abuse-of-discretion
standard, we cannot find error in the trial court's determination. Being locked in a room
before being sexually abused can clearly have a mental health impact on a child's security,
fears, and anxiety, and such information can be useful for future mental health treatment,
as the trial court ultimately concluded. Therefore, we find no abuse of discretion in this
case.
{¶ 19} As for the rest of K.S.'s statements that appellant summarily challenges on
appeal, appellant raised no specific arguments concerning such in the trial court. This
court has found failure to object to the admission of hearsay statements waives such error
on appeal, especially where there are no "exceptional circumstances, but rather a typical
failure to object to typically disputed evidentiary material." Russi v. Brentlinger Ents.,
10th Dist. No. 10AP-1143, 2011-Ohio-4764, ¶ 24 (where there was no error that
" 'seriously affects the basic fairness, integrity or public reputation of the judicial
process,' " the failure to object to the hearsay at trial forfeited that argument on appeal);
Id. at ¶ 23 quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 123 (1997); Geauga Metro.
Housing Auth. v. Biggs, 11th Dist. No. 98-G-2207 (May 19, 2000) (finding it unnecessary
to consider a hearsay issue when it was not objected to at the trial court level). Here, we
find appellant has waived these arguments, and there is no plain error. Statements
regarding the location of abuse and exposure to pornography have been found admissible
under Evid.R. 803(4). See State v. Cook, 3d Dist. No. 14-19-26, 2020-Ohio-3411, ¶ 1
(statements made by child during forensic interview regarding locations of abuse and
exposure to pornography were pertinent to diagnosing the victim and providing him with
No. 18AP-971 9

appropriate physical and psychological treatment, and were made for purposes of medical
diagnosis or treatment). As for K.S.'s statements describing her and appellant's various
states of undress, these descriptions could be pertinent to medical diagnosis and
treatment, in that they could limit or define what sexual contact could have taken place
based on where their pants and underwear were positioned on their bodies. For these
reasons, we find the trial court did not err when it admitted the statements made by K.S.
to forensic interviewer Wilkinson at CAC, because they were pertinent to medical
diagnosis and treatment pursuant to Evid.R. 803(4). Therefore, we overrule appellant's
first assignment of error.
{¶ 20} Appellant argues in his second assignment of error the trial court
committed plain error when it failed to properly instruct the jury as to the essential
elements of Ohio's sexual-motivation specification, in violation of appellant's due process
rights and right to a fair and impartial jury. Appellant admits he did not object to the jury
instructions. As a result, he has forfeited all but plain error. See Crim.R. 30(A); Crim.R.
52(B); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22-23. To succeed under a
plain-error review, appellant must demonstrate that the error affected the outcome of the
trial. See State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
{¶ 21} Here, appellant argues the specification statute references the definition in
R.C. 2971.01, which requires a finding that the offender must have a need or desire for
sexual gratification rather than a purpose to simply engage in sexual activity. He contends
the disparity between the statutory definition of "sexual motivation" and other terms
defined in the jury instructions, such as "sexual activity," "sexual conduct," and "sexual
contact," caused confusion with the jury.
{¶ 22} "Sexual motivation," as it related to the specifications on the kidnapping
counts in the present case, is defined as "a purpose to gratify the sexual needs or desires of
the offender." R.C. 2971.01(J). The trial court instructed the jury that it must determine
whether the kidnapping offenses were committed with a sexual motivation, but the court
did not define the term. In general, "a defendant is entitled to have the jury instructed on
all elements that must be proved to establish the crime with which he is charged." State v.
Adams, 62 Ohio St.2d 151, 153 (1980). However, "a trial court's failure to separately and
specifically charge the jury on every element of each crime with which a defendant is
No. 18AP-971 10

charged does not per se constitute plain error nor does it necessarily require reversal of a
conviction." (Emphasis sic.) Id. at 154. Rather, "an appellate court must review the
instructions as a whole and the entire record to determine whether a manifest miscarriage
of justice has occurred as a result of the error in the instructions." State v. Wamsley, 117
Ohio St.3d 388, 2008-Ohio-1195, ¶ 17. In considering the charge as a whole, "if it appears
from the entire charge that a correct statement of the law was given in such a manner that
the jury could not have been misled, no prejudicial error results." State v. Cope, 12th Dist.
No. CA2009-11-285, 2010-Ohio-6430, ¶ 57, citing State v. Hardy, 28 Ohio St.2d 89, 92
(1971).
{¶ 23} Here, we find there was no prejudice. The Eighth District Court of Appeals
has addressed the same circumstances as in the present case in State v. Petkovic, 8th Dist.
No. 97548, 2012-Ohio-4050, ¶ 59-60. In Petkovic, the defendant was convicted of several
kidnapping offenses that included sexual-motivation specifications. The court instructed
the jury that it would have to consider whether each count of kidnapping was committed
with a sexual motivation but did not define sexual motivation for the jury. The defendant
failed to object to the court's jury instructions, so the court reviewed the argument under a
plain-error standard. The court in Petkovic first noted that the Supreme Court has held
that common words or terms need not be defined. Id. at ¶ 59, citing State v. Gross, 97
Ohio St.3d 121, 2002-Ohio-5524, ¶ 106. The court then concluded that "[d]espite the
statutory definition [in R.C. 2971.01(J)], any error the court may have committed by
failing to give the jury a detailed instruction regarding sexual motivation was harmless in
the case at hand. Upon review, we find the R.C. 2971.01(J) definition mirrors a layman's
understanding of the term sexual motivation." Id. at ¶ 60. In the present case, we concur
with the holding in Petkovic and find that, although the trial court here failed to define
"sexual motivation," for purposes of the sexual-motivation specifications, the statutory
definition mirrors the common understanding of the term. Therefore, we find no plain
error, and we overrule appellant's second assignment of error.
{¶ 24} Appellant argues in his third assignment of error that his convictions are
against the manifest weight of the evidence. "When presented with a manifest-weight
challenge, an appellate court may not merely substitute its view for that of the trier of fact
but must review the entire record, weigh the evidence and all reasonable inferences,
No. 18AP-971 11

consider the credibility of witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered." State v. Ndiaye,
10th Dist. No. 19AP-10, 2020-Ohio-1008, ¶ 35; see also, e.g., State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997). "The discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the conviction."
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In undertaking this review,
determinations of credibility and weight of the testimony are primarily for the trier of fact.
State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The jury, or the
court in a bench trial, may take note of inconsistencies at trial and resolve them
accordingly, believing all, part, or none of a witness's testimony. State v. Antill, 176 Ohio
St. 61, 67 (1964).
{¶ 25} In the present case, appellant argues all his convictions were against the
manifest weight. He asserts that, because there was no physical or forensic evidence
presented, the verdicts relied on K.S.'s testimony, which contained inconsistencies.
Appellant first contends that K.S.'s testimony differed from her statement at the CAC
interview in that, at trial, she denied she was subjected to cunnilingus, but she stated at
the CAC interview that appellant performed cunnilingus on her. However, the jury could
have believed her CAC interview was more credible because it was very detailed, she was
in a more comfortable environment, or she had forgotten the details of the abuse by the
time of trial. We cannot say the jury was unreasonable and lost its way in this regard.
{¶ 26} Appellant next argues that, in the CAC interview, K.S. stated that the abuse
occurred both in her cousins' room and in appellant's room, but at trial she testified all of
the incidences took place in appellant's room. A review of the CAC interview shows that
K.S. stated they were "always" in appellant's room "when he did nasty things," and that
appellant only "tried to be nasty with" her in her cousins' room, but she resisted and
appellant left the room. (Tr. Vol. III at 313; 318-19.) At trial, she stated that the nasty
things only happened in appellant's bedroom, and when questioned on cross-examination
about her cousins' room, K.S.'s testimony was confusing:
Q. And I remember the prosecutor said that this happened in
[appellant's] and [C.S.]'s bedroom. Did it ever happen in
anybody else's bedroom?
No. 18AP-971 12

A. No.

Q. It never happened in [your cousins'] bedroom?

A. No.

Q. Did he ever supposedly try to take you in there?

A. Huh-uh.

Q. Did you ever tell a nurse or the police that he did?

A. Yes.

Q. Why did you tell? You were lying to them?

A. No. I told them what happened.

Q. Oh, you didn't tell them he tried to take you into the kids'
bedroom?

A. No, he never.

Q. So if they wrote that down, they got mistaken, the police
were mistaken?

A. He never tried to take me into my cousins' bedroom.

Q. He never did?

A. No.

Q. Just into [C.S.]'s bedroom?

A. Yes.

(Tr. Vol. II at 213-14.)

{¶ 27} From this unclear exchange, the jury could have reasonably believed K.S.
was referring only to actual abuse during her trial testimony. Notwithstanding, merely
because there may have been a conflict on this minor issue, the jury could have reasonably
believed she was credible overall. Given the state of the record, we cannot say the jury lost
its way.
No. 18AP-971 13

{¶ 28} Appellant also argues that although she suffered from bleeding as a result of
anal sex, no injuries were corroborated by the medical exam. However, Dr. Kristen
Crichton testified there is extensive research indicating that over 95 percent of sexually
abused children have normal physical exams. She also stated there are different "insides,"
and how a child perceives a touch may not be actually inside, but even if there is anal
penetration, the tissue is stretchy and accommodates pressure without leaving any injury.
Even if there is an injury, the mucosal tissue can heal up within a few days without
scarring. In the present case, K.S. was examined one month after the last contact with
appellant. Thus, Dr. Crichton said it was not surprising that her exam was normal.
{¶ 29} Appellant also argues that while K.S.'s description of appellant's penis
arguably matched the photographic evidence, it was well-established through witness
testimony that K.S. was afraid of her mother and would say things to please her.
Additionally, appellant argues it was apparent that K.S.'s mother had a previous sexual
encounter with appellant and more recently developed a rocky relationship with appellant
and his girlfriend, C.S. Thus, appellant's suggestion is that K.S. was lying to make her
mother happy, or her mother coached K.S. based on a grudge against appellant. However,
despite any testimony that K.S. would say things to please her mother, there was no
evidence that K.S.'s mother coached her or intimidated her into making up the allegations
against appellant, and K.S.'s mother denied doing so. Also, although there was some
testimony about some possible past sexual activity between appellant and K.S.'s mother,
her mother testified she had never seen appellant naked and did not know he had a tattoo
on his penis, undermining the claim that K.S.'s mother coached K.S. as to what to say.
Furthermore, K.S.'s mother's boyfriend, R.K., testified he and K.S.'s mother were working
at The Ohio State University cleaning the stadium when K.S. told her mom about the
abuse, and K.S. was crying and upset when asked if anyone had "messed" with her. R.K.
said the conversation with K.S. was prompted by his concerns about K.S. and his
grandchildren doing "dirty" things and he asked K.S.'s mother to talk to K.S. about it.
K.S.'s mother also suffered a seizure when K.S. told her about the abuse. The
circumstances under which K.S. revealed the abuse are more consistent with a
spontaneous revelation rather than a pre-planned arrangement to falsely accuse
appellant.
No. 18AP-971 14

{¶ 30} Appellant further points out that K.S.'s mother struggled with drugs and
exposed K.S. to sexualized environments in her home and by taking her to strip clubs
where she worked, thereby sexualizing K.S. prior to residing with appellant. Appellant
also points out that K.S. exhibited sexualized behavior by inappropriately touching other
children prior to living with appellant. Although these contentions may be true, there
exists no tangible evidence that they caused K.S. to fabricate the allegations against
appellant. Without any supporting evidence, appellant's theories are merely speculative.
{¶ 31} Appellant also argues the living situation at his residence was not conducive
to the alleged abuse, given eight children and multiple adults lived there, appellant
worked long hours, C.S. and other adults were frequently home during the workday, doors
were most often open in the home, and those who resided at the home testified the lock
on appellant's bedroom door was not functional. However, none of these assertions
provide any substantial evidence to demonstrate the abuse could not have taken place as
alleged, and none of appellant's witnesses could state that it was impossible for the abuse
to have occurred. K.S. also testified appellant closed and locked the bedroom door during
the sexual abuse, and one witness testified that appellant would sometimes come home
during the middle of the workday, thereby making the sexual abuse possible.
{¶ 32} Appellant also points out that, although K.S. claimed appellant showed her
pornography on his cell phone and police found appellant had visited pornographic sites
on his cell phone, appellant's girlfriend, C.S., testified that she watched pornographic
movies with appellant on his cell phone. However, this evidence does not undermine
K.S.'s testimony or render her testimony impossible or implausible. It is not impossible or
unreasonable for the jury to believe that appellant watched pornography with both K.S.
and his girlfriend.
{¶ 33} Therefore, after reviewing the entire record, weighing the evidence and all
reasonable inferences, and considering the credibility of witnesses, we cannot find the
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed. In the end, the jury found K.S. credible, and appellant
presents nothing in this appeal beyond conjecture and unsubstantiated theories that K.S.
fabricated the allegations of sexual abuse against him. For these reasons, we overrule
appellant's third assignment of error.
No. 18AP-971 15

{¶ 34} Appellant argues in his fourth assignment of error that the prosecutor's
question regarding appellant's purported criminal record constituted prosecutorial
misconduct and deprived appellant of a fair trial, in violation of his rights as guaranteed
by the Sixth Amendment of the United States Constitution. When reviewing allegations of
prosecutorial misconduct, the test for appellate courts is whether the prosecutor's conduct
was improper and, if so, whether that conduct prejudicially affected the substantial rights
of the accused. State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 57 (10th Dist.).
"[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S.
209, 219 (1982). "Accordingly, prosecutorial misconduct will not be grounds for reversal
unless the defendant has been denied a fair trial." State v. Elson, 10th Dist. No. 13AP-554,
2014-Ohio-2498, ¶ 30, citing State v. Maurer, 15 Ohio St.3d 239, 266 (1984). "[I]t must
be clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury
would have found defendant guilty." State v. Smith, 14 Ohio St.3d 13, 15 (1984).
{¶ 35} In the present case, appellant argues that, while questioning C.S, the
prosecutor asked whether she knew appellant was convicted of a drug offense in 2011,
and, in light of the clear prohibition of such evidence when a defendant does not testify,
pursuant to Evid.R. 609(F), this constituted prosecutorial misconduct. The prosecutor
claimed C.S. had "opened the door" to examine her on appellant's drug use because she
testified she chose not to be around people who used drugs. The trial court disagreed and
said the prosecutor could not raise appellant's past criminal record unless appellant
testified. Appellant's counsel moved for a mistrial, but the trial court denied the motion,
indicating it would strike the question and instruct the jury to disregard it. Appellant
argues the trial court's actions were insufficient to remedy the prejudice suffered.
Appellant claims that in a trial with no physical evidence, where the credibility of
witnesses is of upmost importance, appellant was prejudiced by the prosecutor's actions.
{¶ 36} The state admits appellant's prior drug conviction was not admissible for
impeachment purposes under Evid.R. 609 because appellant did not testify. The state
asserts, however, that it was at least arguable C.S.'s testimony on direct examination that
she never associated with drug users opened the door for the prosecutor to ask her
whether she was aware of appellant's prior drug conviction. Although the drug conviction
No. 18AP-971 16

was from 2011, C.S. stated she had known appellant since before she could remember
and, the state contends, it was at least arguably fair for the prosecutor to ask whether C.S.
associated with appellant at the time of his conviction and/or whether appellant
continued using drugs while living with C.S.
{¶ 37} It is undisputed the prosecutor's question was impermissible. However,
whether the prosecutor's question was intentional or misguided, we cannot find appellant
was denied a fair trial. This was a single question about drug use in a case that did not
involve drug charges or any allegations that drug use contributed to the offenses, thereby
rendering the question harmless and of highly dubious prejudicial impact. Also, C.S.
never gave an answer, and the trial court sustained defense counsel's objection, so the jury
never heard any impermissible evidence. Furthermore, the trial court gave an instruction,
telling the jury that it was going to strike the question and they should completely
disregard it for any purpose. "A jury is presumed to follow the instructions given to it by
the trial judge." State v. Stallings, 89 Ohio St.3d 280, 286 (2000). We have no reason to
believe the jury did not follow the trial court's instructions here. Therefore, for the
foregoing reasons, we find the prosecutor's improper question did not prejudice appellant
or affect his substantial rights. See, e.g., State v. Kaaz, 12th Dist. No. CA2016-05-010,
2017-Ohio-5669, ¶ 66 (no error in denying motion for mistrial based on prosecutorial
misconduct when the trial court immediately sustained defense counsel's objection, the
witness did not answer the question, and the jury was properly instructed that attorney
statements were not evidence, and there is no reason to believe the jury did not fully and
faithfully follow the court's instructions); State v. Ervin, 8th Dist. No. 88618, 2007-Ohio-
5942, ¶ 35-38 (finding the trial court did not err when it denied a mistrial for
prosecutorial misconduct when the court sustained defense counsel's objection, the
witness never answered the prosecutor's question, and the court instructed the jury to
disregard any question to which the court sustained an objection); State v. Ferguson, 8th
Dist. No. 80400, 2002-Ohio-4089, ¶ 8 (no ground for reversal for prosecutorial
misconduct when no prejudice or substantial right affected, the court sustained the
objection before the witness could answer, and the question was innocuous); State v.
Chapman, 2d Dist. No. 95 CA 80 (Oct. 11, 1996) (denial of mistrial for prosecutorial
misconduct proper because defendant did not demonstrate prejudice when the trial court
No. 18AP-971 17

sustained defense counsel's objection and instructed the jury the question was improper
and to disregard it, and the witness did not answer the improper question). For these
reasons, we overrule appellant's fourth assignment of error.
{¶ 38} Accordingly, appellant's four assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.

BEATTY BLUNT, J., concurs.
DORRIAN, J., concurs in part and concurs in judgment only.

DORRIAN, J., concurring in part and concurring in judgment only.

{¶ 39} Respectfully, I concur with the majority to overrule assignments of error
two, three, and four; however, I concur in judgment only to overrule assignment of error
one.
{¶ 40} In this case, K.S. herself testified and was subject to cross-examination.
Indeed, in support of his third assignment of error that the verdicts were against the
manifest weight of the evidence, appellant argues K.S.'s live testimony was inconsistent
with K.S.'s responses provided at the CAC interview.
{¶ 41} In State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, paragraph one of
the syllabus, the Supreme Court of Ohio stated:
Statements made to interviewers at child-advocacy centers
that serve primarily a forensic or investigative purpose are
testimonial and are inadmissible pursuant to the
Confrontation Clause when the declarant is unavailable for
cross-examination.

(Emphasis added.)
{¶ 42} Recently, in State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 43,
this court considered Hughes' argument that the trial court erred in admitting a social
worker's testimony regarding what a prosecuting witness had stated during an interview
conducted by the social worker. Citing paragraph one of the syllabus in Arnold, in
Hughes, we concluded that, because the prosecuting witness testified, there was no
concern regarding the Confrontation Clause. Id. In Hughes, we relied on State v. Boyer,
10th Dist. No. 06AP-05, 2006-Ohio-6992. In Boyer, we stated: Crawford states that
No. 18AP-971 18

" 'when the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements.' " Id. at ¶ 18,
quoting Crawford v. Washington, 541 U.S. 36, 59 (2004) fn. 9, citing California v. Green,
399 U.S. 149, 162 (1970).
{¶ 43} As in Hughes and Boyer, here K.S. was present to testify and was cross-
examined. For the reasons articulated above, I concur in judgment only with the majority
and would overrule the first assignment of error.

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