State v. Jackson

Court: Ohio Court of Appeals
Date filed: 2022-07-27
Citations: 2022 Ohio 2562
Copy Citations
5 Citing Cases
Combined Opinion
         [Cite as State v. Jackson, 2022-Ohio-2562.]

                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




 STATE OF OHIO,                                        :   APPEAL NO. C-210466
                                                           TRIAL NO. B-2000335
      Plaintiff-Appellee,                              :
                                                              O P I N I O N.
   vs.                                                 :

 LARRY JACKSON, JR.,                                   :

      Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 27, 2022



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and Elizabeth Conklin, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Presiding Judge.

       {¶1}    Defendant-appellant Larry Jackson, Jr., appeals from the trial court’s

entry convicting him, following a bench trial, of four counts of rape. In this appeal,

Jackson challenges the trial court’s denial of his motion to suppress, the performance

of his trial counsel, the trial court’s granting of the state’s motion to amend the

indictment, and the sufficiency and the weight of the evidence supporting his

convictions.

       {¶2}    Finding the assignments of error raised by Jackson to be without merit,

we affirm the trial court’s judgment.


                        Factual and Procedural Background


       {¶3}    In August 2019, K.B., who was 12 years old at the time, disclosed to a

family member that Jackson, who was her cousin, had committed various sexual

offenses against her several years earlier. The offenses occurred while K.B. and

Jackson were both at the home of her great-grandmother (who was also Jackson’s

grandmother) Linda Coleman.

       {¶4}    After learning of K.B.’s allegations, Jackson voluntarily went to the

police station to speak with Cincinnati Police Detective Aaron Roach. Detective Roach

read Jackson his Miranda rights prior to interviewing him. Jackson told Detective

Roach that he stayed at Coleman’s home for a short period of time several years earlier,

but that he was very seldom at the house during that time, and that Coleman let him

sleep in her bedroom while he stayed there. Jackson was not clear on the exact time

frame in which he lived with Coleman, but believed it was in 2015 or 2016. When

asked about K.B.’s allegations, Jackson adamantly denied them.

       {¶5}    At the conclusion of the interview, Jackson agreed to take a polygraph

examination. Both the examination and pre- and post-examination interviews were



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conducted by Officer Edwin Rivera. During the post-examination interview, Jackson

initially denied all allegations, as he had during the pre-examination interview and the

polygraph examination itself. But he later stated that “I touched her but I never had

sex with her,” and he admitted to touching K.B.’s bottom. After Officer Rivera

continued to push back and to challenge Jackson’s statements, he admitted to having

oral sex with K.B.

       {¶6}    In January 2020, Jackson was indicted on four counts of rape in

violation of R.C. 2907.02(A)(1)(b), specifically two counts of vaginal intercourse, one

count of fellatio, and one count of digital penetration. The indictment alleged that the

offenses occurred between April 1, 2015, and October 1, 2015, and that victim K.B. was

less than ten years of age when the offenses were committed.

       {¶7}    Prior to trial, Jackson filed a “motion in limine/motion to suppress.” He

sought an order prohibiting any reference to the fact that he had taken a polygraph

examination, to the results of the polygraph examination, and to any statements made

during the polygraph examination. Jackson filed a supplemental motion to suppress

arguing that he was not properly Mirandized and that his confession was involuntary.

Following a hearing, the trial court denied Jackson’s motion to suppress. But it

granted the motion in limine in part and prohibited any mention of the polygraph

examination.

       {¶8}    At trial, K.B.’s grandmother Lena Burnett (who was Coleman’s

daughter) testified that she has cared for K.B. and her younger siblings for years. From

April 2015 to October 2015, the time period specified in the indictment, Burnett took

K.B. and her siblings to the home of K.B.’s great-grandmother Linda Coleman so that

Coleman could babysit them before and after school. She testified that at some point

during that period of time, Jackson lived with Coleman for a two-week period.

       {¶9}    Burnett testified that K.B. was in the third grade when these offenses

occurred. She initially stated that K.B. began third grade in August 2015. But after

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looking at K.B.’s medical records, she recalled that K.B. had repeated kindergarten

because of a childhood illness and in fact had started second grade, not third, in August

2015.

        {¶10} After K.B. testified that she was born on August 6, 2007, and that she

started third grade in the year 2016, the state requested an in-chambers on the record

conference. It informed the court that it now anticipated that K.B.’s testimony would

indicate that the offenses occurred in 2016, rather than 2015, stating “[K.B.], I

anticipate, is going to testify that any sexual conduct occurred in the early part of third

grade, which would mean it was 2016.” The state asserted, “The indictment was

processed in relation to what Jackson says in his interview about the dates. So there

is going to be a discrepancy between when [K.B.] says it happened and when Jackson

says it happened.” It made a motion to amend the indictment to include the time

period of April 1, 2016, through October 1, 2016, in addition to the time period

originally specified in the indictment. Defense counsel argued that the motion was

premature because K.B. had yet to testify about the time frame in which the offenses

occurred. The trial court elected to hold the motion in abeyance.

        {¶11} K.B.’s testimony continued following the in-chambers conference. She

stated that Jackson had engaged in sexual conduct with her three times when she was

nine years old and going into the third grade, all incidents occurring when they were

both at her great-grandmother Linda Coleman’s house and she had been left home

alone while Coleman and her siblings went to the store. During the first incident of

sexual conduct with Jackson, K.B. testified that he called her into Coleman’s bedroom,

pulled down her pants, and put his finger in her vagina. During both the second and

third incidents, K.B. pretended to be asleep while Jackson put his penis inside her

vagina. K.B. testified that Jackson never put his penis anywhere else inside her body.

K.B. did not tell anyone what Jackson had done to her until August 2019, which was

approximately three years after the offenses occurred.

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       {¶12} To help her refresh her recollection of Jackson’s actions, K.B. was shown

a letter that she had written in August 2019 describing what Jackson had done to her.

After twice reading the letter, she testified that during one of the incidents of sexual

conduct, Jackson told her to open her mouth, and that after she did so, he squirted

something into her mouth.

       {¶13} K.B. also testified about her interview at the Cincinnati Children’s

Hospital Mayerson Center. She acknowledged that she repeatedly stated during the

interview that she had a bad memory. She also told the interviewer that Jackson took

off her clothes, with the exception of her bra and underwear, and touched her chest

under her bra.

       {¶14} Tracy Colliers, a social worker at Cincinnati Children’s Hospital’s

Mayerson Center, testified that she had conducted a diagnostic interview of K.B. for

purposes of medical diagnosis and treatment. The interview was recorded and played

for the court.

       {¶15} Officer Edwin Rivera testified about his interview of Jackson on January

15, 2020. A video of the interview was admitted into evidence and a portion of it was

played for the court. Rivera’s interview of Jackson, which occurred immediately after

the polygraph examination was administered, lasted approximately 90 minutes. It

included Jackson’s initial denials of engaging in sexual conduct with K.B., and then

his admission that he had touched K.B.’s bottom but had not engaged in sex with her.

Upon extensive challenging of his statement by Officer Rivera, Jackson subsequently

admitted to engaging in oral sex with K.B. Jackson told Officer Rivera that K.B. was

alone in bed when he got home in the middle of the night, and that the other children

were in the living room. He told Officer Rivera that “she put her mouth on there and

put the tip on it, and then she put her hand on it. And it was like three, five seconds,

and I just told her to get off.” Jackson stated that “it just happened,” and that he left



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afterwards. He denied ejaculating in K.B.’s mouth, and he maintained that any sexual

conduct with K.B. only happened one time.

       {¶16} Officer Rivera described the conditions of the interview, stating that he

sat less than a foot from Jackson in Jackson’s personal space, that Jackson was not

given food or water during the approximately three-hour interview, and that Jackson

was not given, nor had he asked for, access to the bathroom.

       {¶17} At the close of the state’s case, the trial court revisited the state’s motion

to amend the indictment. Jackson objected to the amendment, arguing that if it was

granted, he would no longer be able to present an alibi defense. The trial court granted

the motion to amend, recognizing that Crim.R. 7(D) permits the liberal amendment of

indictments. It stated that:

       This doesn’t change the essential elements as the prosecutor has

       pointed out. That would be a different matter, if it changed the age of

       the victim because that is an essential element, but this is more of the

       notice of the time.

       Furthermore, it wasn’t so much—I mean, I think even from the start of

       the criminal investigation, even the defendant knew about, at least

       roughly, what period of time they were looking at because it was the

       period of time he was living with his grandmother, the victim’s great-

       grandmother.

       I don’t believe that it rises to the level of prejudice because it’s still

       talking about a period of time when she was living there, and that’s the

       period of time that both the witnesses, as well as the State’s case, is

       resting on, and I don’t find that rises to the level of prejudice.

       And, furthermore, this could simply be a scrivener’s error, substituting

       ’15 for ’16 when it was put together. But the victim and the other

       witnesses seem to be pretty clear about the age, or, at least, what grade

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       she was going into at the time this happened. Frankly, she seemed

       pretty definitive about that.

The indictment was amended to include the time period of April 1 to October 1 in both

the calendar years 2015 and 2016.

       {¶18} Detective Roach was called as a witness by Jackson. He testified that he

began investigating this case in August of 2019 after K.B.’s family called to report her

allegations. Detective Roach stated that the dates on the incident report for these

offenses were different than the dates originally specified in the indictment. The

incident report listed the dates of the offenses as September 2016 through May 2017,

the time period when K.B. was in third grade. Detective Roach first explained that he

determined the dates used in the indictment based on information obtained from

Jackson during the post-polygraph-examination interview regarding when Jackson

lived at his grandmother’s house. He then clarified that the dates in the indictment

“came from a bunch of different things. It came from—I mean it wasn’t just from

[Jackson’s statements] but that did play a part of it.” When asked what else played a

part, Detective Roach responded:

       I mean, there were multiple parts when we were trying to narrow down

       the time frame, how old she was; what grade she was in; you know, the

       plethora of different times that he said he was there.

       You know, the years had changed that he said that he was there. And

       then from talking to Grandmother about when she would allow the kids

       to be there throughout the year and after school, which was, you know,

       a large time frame, and then also from the victim’s testimony, or the

       victim’s Mayerson interview.

       {¶19} Detective Roach also discussed his January 2020 interview with
Jackson, and he stated that Jackson was adamant that he had not committed the acts

he was accused of.

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       {¶20} Linda Coleman testified that Jackson never lived with her or stayed with

her. She explained that there was a period of time where she watched K.B. and K.B.’s

siblings before and after school, but that she was unaware of a time that Jackson was

at her home while K.B. was there after school. Coleman could not recall a time when

she left K.B. at home while she took the other siblings to the store.

       {¶21} Jackson testified that he voluntarily went to the police station in

January 2020 to speak with Detective Roach to clear his name. He agreed to take the

polygraph examination for the same reason. Jackson stated that he felt forced into

admitting that he engaged in sexual conduct with K.B. after he was interviewed for so

many hours, during which he repeatedly denied K.B.’s allegations. According to

Jackson, he feared for his life, did not believe that he could leave the police station,

and felt pressured to confess. He told the court that he graduated from high school,

and that he had been given an individualized education plan while in high school.

       {¶22} Jackson testified that there was a period of time in 2015 when he stayed

over at Coleman’s house after he had a falling-out with his girlfriend. During that time,

he worked long hours for a moving company and rarely saw K.B. or her siblings, other

than occasionally in the mornings when he was getting ready to go to work and they

had been dropped off before school. According to Jackson, he never stayed the night

at Coleman’s when K.B. was there, and he was never alone with K.B. Jackson denied

all sexual conduct with K.B.

       {¶23} The trial court found Jackson guilty of all four counts of rape. It

imposed a sentence of 15 years to life imprisonment on each offense and made the

sentences concurrent.




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                            Denial of Motion to Suppress


       {¶24} In his first two assignments of error, Jackson challenges the trial court’s

denial of his motion to suppress. We consider these assignments together.


                 a. Interviews, Motion to Suppress, and Court’s Ruling


       {¶25} Jackson voluntarily went to the police station on January 15, 2020, to

speak with Detective Roach. Prior to speaking with Jackson, Detective Roach verified

that Jackson was not under the influence of any drugs or alcohol, had graduated from

high school, and that he could read and write. He then read Jackson his rights, stating:

       Before we ask you any questions, you must understand your rights. You

       have the right to remain silent. Anything you say can be used against

       you in court.

       You have the right to talk to a lawyer for advice before we ask you any

       questions and to have him with you during your questioning.

       If you cannot afford a lawyer, one will be appointed for you before any

       questionings, if you wish.

       If you decide to answer questions now without a lawyer present, you will

       still have the right to stop answering at any time.

       You also have the right to stop answering at any time until you talk to a

       lawyer.

Detective Roach then had Jackson explain what that recitation meant. Jackson stated,

“Well, it means I have the right to talk, but if I had a lawyer present, it’d be—I don’t

know.” Detective Roach clarified, stating that “If you want to talk to me, you can talk

to me. If you want to stop talking to me—you can stop talking to me,” and that “we’re

going to have a conversation. If you want to stop talking to me, you stop talking to




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me.” Jackson then signed the waiver of rights form,1 and he began to speak with

Detective Roach. He denied the allegations against him. The waiver signed by Jackson

was not admitted into evidence, and our record does not contain a copy of it. Nor was

the videotape of this portion of the interview admitted into evidence or played for the

court. The only evidence before this court is the transcript of the interview between

Detective Roach and Jackson.

        {¶26} Jackson submitted to the polygraph examination with Officer Rivera

immediately after his interview with Detective Roach.                  The videotape of this

examination and subsequent interview with Officer Rivera was admitted into evidence

and is part of the record on appeal. Prior to conducting the examination, Officer

Rivera verified that Jackson had been read his rights and reminded him that those

rights were still in effect.

        {¶27} When Officer Rivera began the post-polygraph-examination interview

with Jackson, he immediately confronted Jackson and told him that he failed the

polygraph examination. The interview between Officer Rivera and Jackson remained

confrontational for the rest of the interview. Officer Rivera did not accept Jackson’s

denial of misconduct, and he told Jackson on multiple occasions that he knew Jackson

had done something and that Jackson needed to step up and admit it. He also

encouraged Jackson to tell the truth, repeatedly stating that he could see that Jackson

was a good person, and that good people make mistakes. Jackson continued to deny

K.B.’s allegations, and Officer Rivera continued to inform him that he had failed the

polygraph examination. Officer Rivera told Jackson several times that Jackson knew

what he had done was wrong and that Jackson needed to be honest about it. Jackson




1While we do not have a copy of the form in the record, this is how Jackson characterized it in his
supplemental motion to suppress. The state in its appellate brief refers to it as a notification of
rights form. The parties are referring to the same form. To avoid confusion, we refer to the form
in this opinion as a waiver of rights form.


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eventually admitted he had touched K.B.’s bottom, although he maintained his denial

of having sex with her.

       {¶28} Officer Rivera pressed Jackson for more information, repeatedly telling

Jackson that he was not being truthful and that he had failed the polygraph

examination. He told Jackson three times that Jackson had committed the actions he

was accused of, and he encouraged Jackson to step up and be a man. Officer Rivera

reiterated that everyone makes mistakes and that he wanted to help Jackson. He told

Jackson that a 13-year-old girl would not make up the allegations that were involved

in this case. Officer Rivera continued to confront Jackson and refused to accept his

denial of misconduct. Jackson eventually admitted to having oral sex with K.B.

       {¶29} Jackson filed a motion to suppress, arguing that he was not properly

Mirandized and that his confession was involuntary. Following a hearing, the trial

court stated that it would read the two transcripts that had been submitted to it during

the hearing (which were the interviews of Jackson by Detective Roach and Officer

Rivera).   The court subsequently issued an entry denying Jackson’s motion to

suppress. It found that Jackson was twice apprised of his Miranda rights, and that

Jackson’s confession was voluntary under the totality of the circumstances. It further

found that Officer Rivera did not make misrepresentations, promise leniency, or

engage in coercion.


                      b. Waiver of Miranda Rights/Voluntariness


       {¶30} Jackson argues in his first assignment of error that the trial court erred

in denying the motion to suppress where it failed to determine that the waiver of his

Miranda rights was made knowingly, voluntarily, and intelligently. And in his second

assignment of error, Jackson argues that the trial court violated his right to due

process by denying his motion to suppress because his confession was coerced. In



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considering Jackson’s arguments, we assume, without deciding, that he was in custody

and that Miranda warnings were required.

       {¶31} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. We must accept the trial court’s factual findings if they are supported by

competent, credible evidence, but we review de novo the trial court’s application of the

law to those facts. Id.

       {¶32} Both of Jackson’s arguments—that his Miranda waiver was not

knowing, voluntary, and intelligent, and that his confession was not voluntary—are

analyzed under a totality-of-the-circumstances test.       State v. Durgan, 1st Dist.

Hamilton No. C-170148, 2018-Ohio-2310, ¶ 21; State v. Eley, 77 Ohio St.3d 174, 178,

672 N.E.2d 640 (1996).      Under that test, we must “consider the totality of the

circumstances, including the age, mentality, and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; the existence of physical

deprivation or mistreatment; and the existence of threat or inducement.” State v.

Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 35, quoting State v.

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus.

       {¶33} The state must prove by a preponderance of the evidence that an
accused made a knowing, voluntary, and intelligent waiver of her or his Miranda

rights. Durgan at ¶ 22. Absent evidence that an accused’s will was overborne or his

capacity for self-determination was critically impaired because of coercive police

conduct, a waiver of Miranda rights will be considered voluntary. Id. at ¶ 23. “Once

it is determined that a suspect’s decision not to rely on his rights was uncoerced, that

he at all times knew he could stand mute and request a lawyer, and that he was aware

of the State’s intention to use his statements to secure a conviction, the analysis is

complete and the waiver is valid as a matter of law.” Id., quoting State v. Dailey, 53

Ohio St.3d 88, 91, 559 N.E.2d 459 (1990).

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       {¶34} The state must also prove by a preponderance of the evidence that a

confession was voluntary. Durgan at ¶ 24. “Coercive police activity is necessary to a

finding that a confession was involuntary within the meaning of the Due Process

Clause.” Id.

       {¶35} While the trial court did not specifically find that Jackson’s waiver of his

Miranda rights was made knowingly, voluntarily, and intelligently, we find that

determination implicit in the court’s holding. And the record supports that finding.

After verifying that Jackson could read and write and reading Jackson his rights,

Detective Roach attempted to ensure that Jackson understood them, and he reiterated

to Jackson that Jackson could stop talking at any time. Jackson signed a waiver of

rights form. Officer Roach made no threats to get Jackson to waive his rights. After

signing the waiver form, Jackson immediately and willingly began to talk to Detective

Roach about K.B.’s allegations and to deny those allegations.

       {¶36} We note that while Jackson signed the waiver of rights form, no express

waiver, either oral or written, was explicitly required. State v. Williams, 2d Dist.

Montgomery No. 28648, 2021-Ohio-1340, ¶ 55. “An express written or oral statement

of waiver of the right to remain silent or of the right to counsel is usually strong proof

of the validity of that waiver, but is not inevitably either necessary or sufficient to

establish waiver.” State v. Winfrey, 1st Dist. Hamilton No. C-070490, 2008-Ohio-

3160, ¶ 24, quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60

L.Ed.2d 286 (1979); State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d

279, ¶ 11. Rather, a waiver may be inferred “from the suspect’s behavior, viewed in

light of all the surrounding circumstances.” Lather at ¶ 11, quoting State v. Murphy,

91 Ohio St.3d 516, 518, 747 N.E.2d 765 (2001). One such circumstance in which a

waiver can be inferred is where a defendant proceeds to speak after having been

advised of her or his rights and indicating an understanding of them. Williams at ¶

55.

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       {¶37} Here, not only did Jackson sign the waiver form, but he proceeded to

speak to Detective Roach immediately after discussing the rights and signing the

waiver. Because Jackson’s decision not to invoke his rights was uncoerced and

because he was aware that he could stop talking and request a lawyer at any time, and

that anything he said could be used against him in court, the waiver of his rights was

valid as a matter of law. See Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-

2310, at ¶ 23.

       {¶38} In considering the totality of the circumstances regarding whether the

confession was voluntary, the trial court found that Officer Rivera told Jackson he

could help himself by admitting his wrongdoing, implored Jackson to step up and be

a man, and appealed to Jackson’s humanity by noting that people make mistakes. It

further found that Officer Rivera did not make misrepresentations, promise leniency,

or engage in coercion.

       {¶39} These findings were supported by the record. Officer Rivera engaged in

very intense questioning of Jackson and refused to accept Jackson’s denial of

misconduct. The questioning involved repeated encouragement of Jackson to tell the

truth and offers to help him. It also involved Officer Rivera repeatedly (in excess of

ten times) informing Jackson that he had failed the polygraph examination and stating

that he knew Jackson had committed the actions he was being accused of. While the

questioning was confrontational, Officer Rivera did not coerce, threaten, or mistreat

Jackson.

       {¶40} “Admonitions to tell the truth are uncoercive in nature” and are

permissible. State v. Carovillano, 1st Dist. Hamilton Nos. C-060658 and C-060659,

2007-Ohio-5459, ¶ 25. Nor did Officer Rivera’s offer to help Jackson result in

coercion. We have held that “promises that the defendant[’]s ‘cooperation’ would be

considered in the disposition of his case, or that it would be in the defendant’s ‘best

interest’ to tell the ‘real story,’ did not negate the voluntary nature of a confession.”

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State v. Cedeno, 192 Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 20 (1st

Dist.). Further, “suggestions of leniency, promises that a defendant’s cooperation will

be considered in the disposition of charges, and statements that a confession will be

helpful do not invalidate an otherwise legal confession.” Carovillano at ¶ 25.

       {¶41} In this case, Officer Rivera’s statements during the interview were

intense and confrontational, but were not coercive and did not render Jackson’s

confession involuntary. See Cedeno at ¶ 20. Officer Rivera’s repeated admonitions to

him that he failed the polygraph examination, without also telling him that the results

of the examination were not admissible at trial, likewise did not render his confession

involuntary. Police are not required to tell a suspect that polygraph results are

inadmissible at trial. See State v. Lytle, 4th Dist. Ross No. 96CA2182, 1997 Ohio App.

LEXIS 921, *11 (Mar. 10, 1997).

       {¶42} Jackson additionally argues that his confession was coerced because of

Officer Rivera’s use of the “Reid Technique” of interrogation. While Officer Rivera was

briefly asked about the Reid School of Interviewing during his trial testimony, Jackson

did not raise this argument in his motion to suppress before the trial court and no

evidence was presented on it at the suppression hearing. We do not address this

argument on appeal, as we may “only consider evidence presented at the suppression

hearing.” Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310, at ¶ 26 (the

court declined to consider an argument about the “Reid Method” where the defendant

had not raised the issue at the hearing on the motion to suppress).

       {¶43} Following our review of the record, we hold that Jackson made a

knowing, voluntary, and intelligent waiver of his rights, and that his confession was

not the result of coercion. The trial court did not err in denying Jackson’s motion to

suppress, and the first and second assignments of error are overruled.




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                              Amendment of Indictment


       {¶44} For ease of our discussion, we consider Jackson’s fourth assignment of

error out of order. In this assignment of error, Jackson contends that the trial court

violated his constitutional right to due process when it granted the state’s motion to

amend the indictment.

       {¶45} As discussed above, the indictment alleged that the offenses were

committed between April 1, 2015, and October 1, 2015. The state had selected these

dates in part based on K.B.’s statement that the offenses occurred when she was going

into the third grade. Under the state’s calculation, K.B. had started the third grade in

August of 2015. Trial testimony from both K.B. and Lena Burnett, however, indicated

that K.B. actually started the third grade in August of 2016.

       {¶46} The state moved to amend the indictment to include the time period of

April 1 to October 1 in both the calendar years 2015 and 2016. The trial court granted

the motion over Jackson’s objection. It found that Jackson was not prejudiced by the

amendment because the amendment did not change the essential elements of the

offenses and because Jackson was aware of the state’s allegation or theory that these

crimes occurred during the period of time that he lived with Coleman.

       {¶47} Because Jackson objected to the amendment of the indictment at the

trial level, we review the trial court’s decision to permit the amendment for an abuse

of discretion. State v. Svoboda, 2021-Ohio-4197, 180 N.E.3d 1277, ¶ 132 (1st Dist.).

       {¶48} The purpose of an indictment is to give notice to the accused. Id. at ¶

134. It should “apprise the defendant of that which he may expect to meet and be

required to answer.” Id., quoting State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-

3830, 935 N.E.2d 26, ¶ 10. Pursuant to Crim.R. 7(D), “[t]he court may at any time

before, during, or after a trial amend the indictment, information, complaint, or bill of

particulars, in respect to any defect, imperfection, or omission in form or substance,


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or of any variance with the evidence, provided no change is made in the name or

identity of the crime charged.” (Emphasis added.)

       {¶49} The amendment of the indictment in this case did not change the names

of the offenses. Prior to the amendment, Jackson was charged with four counts of

rape. He was charged with the same offenses following the indictment. Nor did the

amendment of the indictment change the identity of the offense. See Svoboda at ¶ 136

(the amendment of the indictment from the time period January 1, 2008, to December

31, 2008, to the time period August 1, 2011, to May 31, 2012, “did not change the

identity of the charge or the nature of the conduct alleged”). The nature of the conduct

that Jackson was alleged to have committed did not change, nor did the location where

the offenses were alleged to have taken place. The victim of the offenses remained the

same, as the did the surrounding circumstances.

       {¶50} The state consistently proceeded under the theory that Jackson

committed these offenses during the period of time that he lived with Coleman because

he had access to K.B. to commit the offenses during that time period, as she often

stayed at Coleman’s before and after school. The bill of particulars stated that:

       On or between April 1, 2015 and October 1, 2015, when Defendant was

       living at Defendant’s grandmother Linda Coleman’s residence in the

       vicinity of 1702 Berkley Avenue, Cincinnati, Ohio, Defendant engaged

       in sexual conduct with K.B. on three separate occasions. On the first

       occasion, Defendant stuck Defendant’s finger in K.B.’s vagina and put

       Defendant’s penis in K.B.’s mouth. The other two occasions, Defendant

       inserted Defendant’s penis into K.B.’s vagina. K.B. was in third grade

       and 7-8 years of age at the time (date of birth is August 6, 2007).

       {¶51} All parties in this case were focused on the time period that Jackson
lived with Coleman and not the specific chronological year in which the offenses

occurred. While Jackson testified at trial that he lived with Coleman in the year 2015,

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                      OHIO FIRST DISTRICT COURT OF APPEALS



he was not as certain of that timing when he spoke with Detective Roach in January of

2020. During that interview, he could not identify the specific year that he lived with

Coleman, but stated that he thought it was either 2015 or 2016. At all times throughout

this case, the reference point for Jackson for preparing alibi evidence and defending

against the offenses with which he was charged was the period of time that he lived

with Coleman. He had the opportunity to produce alibi evidence for this time period,

if such evidence existed. And the record contains no evidence that it did. Accordingly,

we are not persuaded by Jackson’s argument that the amendment impeded his ability

to produce alibi evidence. And, even if he was only focused on 2015 prior to trial, the

record is devoid of any evidence that he had an alibi for 2016. Further, he did not seek

a continuance to address this.

       {¶52} The fact that the amendment occurred during the middle of the trial is

troubling, as it did not leave Jackson time to “adjust his defense strategy accordingly.”

See Svoboda, 2021-Ohio-4197, 180 N.E.3d 1277, at ¶ 136 (where amendment was

made over a year prior to trial, defendant had time to adjust defense strategy).

Nonetheless, because the reference point for Jackson as to when the offenses were

alleged to have occurred—the time period that he lived with Coleman—did not change,

his defense strategy presumably would not have been altered, and he still had the

ability long before trial to produce alibi evidence for that time period. And, Jackson

does not argue that he did, in fact, have an alibi for 2016, nor did he seek a continuance

to obtain evidence of any alibi that might exist.

       {¶53} Because the amendment did not change the name or identity of the

offenses, we hold that the trial court did not abuse its discretion in granting the state’s

motion to amend the indictment. The fourth assignment of error is overruled.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                Ineffective Assistance


       {¶54} In his third assignment of error, Jackson argues that the cumulative

effect of defense counsel’s errors violated his right to the effective assistance of

counsel.

       {¶55} Trial counsel will not be considered ineffective unless counsel’s

performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989).             Trial counsel’s

performance will only be deemed deficient if it fell below an objective standard of

reasonableness. Strickland at 688; Bradley at 142. A defendant is only prejudiced by

trial counsel’s performance if there is a reasonable probability that the outcome of the

proceedings would have been different but for the deficient performance. Strickland

at 694; Bradley at 142.

       {¶56} Jackson first argues that counsel was ineffective for failing to seek a

continuance after the indictment was amended to change the dates of the offenses. He

argues that he was entitled to a continuance under Crim.R. 7(D), and that counsel’s

failure to request a continuance prohibited him from securing alibi evidence for the

new dates in the indictment. Crim.R. 7(D) provides that if an amendment is made to

the indictment to cure a variance between the indictment and the proof, the defendant

is entitled “to a reasonable continuance, unless it clearly appears from the whole

proceedings that the defendant has not been misled or prejudiced by the defect or

variance in respect to which the amendment is made, or that the defendant’s rights

will be fully protected by proceeding with the trial, or by a postponement thereof to a

later day with the same or another jury.”

       {¶57} We concluded in response to Jackson’s fourth assignment of error that
the amendment to the indictment did not change the identity of the offenses and that


                                              19
                     OHIO FIRST DISTRICT COURT OF APPEALS



the trial court did not abuse its discretion in granting the amendment. We also

explained that the amendment did not change Jackson’s reference point for when

these offenses were committed—at all times, Jackson’s reference point for preparing

alibi evidence was the period of time that he lived with Coleman. While Jackson

asserts that he could have obtained alibi evidence for the new dates in the indictment

if counsel had requested a continuance, the record contains no evidence of an alibi.

Where the allegations of ineffectiveness are based on facts outside the record, we are

unable to determine on appeal whether ineffective assistance of counsel occurred.

State v. Giuggio, 1st Dist. Hamilton No. C-170133, 2018-Ohio-2376, ¶ 10.

       {¶58} Jackson also contends that counsel was ineffective for arguing that his

confession was not voluntary because of his reduced mental capacity and then failing

to investigate the argument further and introduce evidence, such as school records, in

support of that claim. Again, Jackson’s allegations of ineffectiveness are based on

matters outside the record, and we cannot determine in this appeal whether counsel

was ineffective on this ground. See id.

       {¶59} Jackson’s remaining contentions in support of his ineffective-assistance

argument concern the testimony of Tracy Colliers, the social worker who interviewed

K.B. at the Mayerson Center. He argues that counsel was ineffective for failing to

object to the admission of Colliers’s videotaped interview with K.B. Prior to Colliers’s

testimony, defense counsel made an oral motion in limine to exclude the video of

Colliers’s interview with K.B. The trial court overruled the motion after finding that

the interview was admissible under Evid.R. 803(4). Jackson argues that counsel was

ineffective for failing to object to the admission of the interview because K.B.’s

statements in the interview were not made for the purposes of medical diagnosis or

treatment, were testimonial in nature, and were admitted in violation of the

Confrontation Clause.



                                              20
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶60} The Confrontation Clause is found in the Sixth Amendment to the

United States Constitution.     It provides in relevant part that “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him.” In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation

Clause prohibits the admission of “testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” See State v. Craig, 110 Ohio St.3d 306, 2006-

Ohio-4571, 853 N.E.2d 621, ¶ 81.

       {¶61} Crawford only applies when the statements involved are testimonial.

State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 59; State v.

Williams, 2017-Ohio-8898, 101 N.E.3d 547, ¶ 10 (1st Dist.). So in order to determine

whether K.B.’s statements violated the Confrontation Clause, we must first determine

whether they were testimonial. This court has held that “[s]tatements made to medical

personnel for the purpose of diagnosis or treatment are not testimonial under

Crawford ‘because they are not even remotely related to the evils that the

Confrontation Clause was designed to avoid.’ ” Williams at ¶ 11, citing Muttart at ¶

63.

       {¶62} In determining whether a statement was made for the purposes of

medical diagnosis or treatment by a child to a medical or social worker professional in

child-abuse cases, relevant factors to be considered include “(1) the nature of the

questioning—whether the interviewer asked leading or suggestive questions; (2)

whether the child had a reason to lie; (3) whether the child understood the need to tell

the truth; (4) the age of the child at the time the statements were made; and (5)

whether the child’s statements were consistent.” Id. at ¶ 11.

       {¶63} Here, K.B. was in the sixth grade at the time of her interview with

Colliers. She was not questioned in an overly leading or suggestive manner, she had

                                               21
                       OHIO FIRST DISTRICT COURT OF APPEALS



no motive to lie, she seemed to understand the need to be truthful, and she was

consistent in her allegations that Jackson engaged in sexual acts with her. In reviewing

the factors set forth above, we find that the trial court did not err in determining that

K.B.’s statements were given for purposes of medical diagnosis or treatment. As such,

they were not testimonial and their admission did not violate the Confrontation

Clause. But even if the statements had been testimonial, we still would find no

violation of Jackson’s right to confrontation because K.B. testified at trial. See id. at ¶

13. As this court has explained in multiple instances, there is no confrontation-clause

violation where the child victim testifies at trial. Id.; State v. Lukacs, 188 Ohio App.3d

597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 15 (1st Dist.).

          {¶64} Having found no confrontation-clause violation, we turn to Jackson’s

argument that Colliers’s interview of K.B. contained inadmissible hearsay and that the

interview was not admissible under Evid.R. 803(4). Hearsay is “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted in the statement.” Evid.R. 801.

Generally, statements containing hearsay are inadmissible. Evid.R. 802. But under

Evid.R. 803(4), statements made for the purposes of medical diagnosis and treatment

are not excluded by the hearsay rule. As we have determined that K.B.’s statements to

Colliers were made for the purpose of medical diagnosis or treatment, the statements,

while hearsay, were thus admissible under Evid.R. 803(4).               Defense counsel,

consequently, was not ineffective for failing to object to Colliers’s videotaped interview

of K.B.

          {¶65} Jackson also argues that defense counsel was ineffective for failing to

object to the trial court’s decision to allow Colliers to testify as an expert witness. He

contends that it was error to admit expert-opinion testimony when the expert’s

opinion was not set forth in a written report in compliance with Crim.R. 16(K).



                                               22
                       OHIO FIRST DISTRICT COURT OF APPEALS



Jackson’s argument concerns Colliers’s testimony, set forth below, about latent

disclosures and the absence of physical trauma to a victim.

       {¶66} Colliers was asked by the prosecutor if she was familiar with the term

“latent disclosure.” She responded affirmatively, stating that “disclosing is a process

for many kids. So many kids do not often disclose right away, and it could be for a

number of different reasons.” Upon an objection from Jackson, the state had Colliers

set forth her training and qualifications on the topic of latent disclosures. The trial

court overruled Jackson’s objection, stating that “She’s not actually having an opinion

as to this witness. This is just general purposes for the record. She has an educational

background to testify to it. I’m going to let her testify to it.” Colliers then testified that

she regularly sees latent disclosures at the Mayerson Center.

       {¶67} Colliers also testified that a physical examination of K.B. showed no

signs of trauma, and she stated that the absence of physical trauma did not necessarily

rule out abuse having occurred. Jackson again objected to this part of her testimony.

And the trial court again overruled the objection, stating that Colliers was not offering

a specific opinion about K.B. and was talking in generalities.

       {¶68} Assuming that Colliers’s testimony was opinion testimony that should

have been disclosed in a report and that defense counsel was deficient for failing to

object on this ground, we cannot find that defense counsel rendered ineffective

assistance because Jackson has shown no prejudice. The record contains K.B.’s

testimony that Jackson raped her, as well as Jackson’s admission to touching K.B. and

engaging in oral sex with her. We cannot say that there is a reasonable probability that

the outcome of the proceedings would have been different had defense counsel

objected and Colliers’s opinion testimony been excluded.

       {¶69} The third assignment of error is overruled.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



                                Sufficiency and Weight


       {¶70} In his fifth and sixth assignments of error, Jackson argues that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence.

       {¶71} In reviewing the sufficiency of the evidence, we must determine

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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295,

82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. When reviewing a challenge to the weight of the

evidence, we must review the entire record, weigh the evidence, consider the

credibility of the witnesses, and determine whether the trier of fact clearly lost its way

and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997).

       {¶72} Jackson was convicted of four counts of rape in violation of R.C.

2907.02(A)(1)(b), which provides that “[n]o 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 * * * [t]he other person is less

than thirteen years of age, whether or not the offender knows the age of the other

person.”

       {¶73} Jackson does not challenge the age element of this offense, but rather

contends that the only evidence that a crime occurred was K.B.’s trial testimony, which

he argues was inconsistent with prior statements that she had given about the offenses.

       {¶74} K.B. testified that the first time Jackson touched her, he called her into

Coleman’s bedroom, pulled down her pants, and put his finger in her vagina. She

further testified that on two occasions, she pretended to be asleep while Jackson put


                                               24
                      OHIO FIRST DISTRICT COURT OF APPEALS



his penis inside her vagina. And she testified that during one of the incidents of sexual

conduct, Jackson told her to open her mouth. And that after she did so, he squirted

something into her mouth. Viewing this evidence in the light most favorable to the

prosecution, we hold that K.B.’s testimony, if believed, was sufficient to establish that

Jackson committed four separate counts of rape. See Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 12.

       {¶75} Jackson’s argument about the inconsistency of K.B.’s testimony is

relevant to a manifest-weight-of-the-evidence analysis, not a sufficiency analysis. He

is correct that K.B. at times contradicted herself when testifying at trial. For example,

she initially testified that Jackson had not put his penis anywhere else inside her body

other than her vagina, but after she read the letter she had written several years earlier

describing Jackson’s actions, K.B. recalled that he had squirted something into her

mouth after instructing her to open her mouth.            Any inconsistencies in K.B.’s

testimony concerned the details surrounding the specific sexual acts committed

against her; they did not involve whether a sexual offense actually occurred or whether

Jackson was the perpetrator of the offenses.          K.B. remained consistent in her

testimony that Jackson was the person who had committed these acts of rape.

       {¶76} As we review this testimony, we are mindful that K.B. was less than ten
years of age when these offenses were committed. She first disclosed the offenses three

years after they occurred, and she testified at trial almost two years after that. It is not

inconceivable that such a young child would not recall the specific details of these

offenses with 100 percent accuracy.        Further, the trial court was aware of the

discrepancies in K.B.’s testimony, and it was able to take them into consideration when

determining what weight to accord the testimony and when assessing K.B.’s

credibility. In fact, the trial court plainly found K.B. to be a credible witness. In a

written decision finding Jackson guilty, the trial court stated that “K.B.’s testimony



                                                25
                      OHIO FIRST DISTRICT COURT OF APPEALS



was consistent with her earlier statements; her testimony was credible, and the

surrounding evidence presented by the State supported her testimony.”

       {¶77} In addition to K.B.’s testimony, the record contained Jackson’s

confession to Officer Rivera. Although the acts admitted to by Jackson differed from

the sexual conduct described by K.B., the trial court could plausibly have viewed

Jackson’s confession as an admission to some wrongdoing while attempting to

minimize the seriousness of his actions. Further, the trial court was entitled to reject

Jackson’s recantation of his confession at trial as self-serving.

       {¶78}    In support of his manifest-weight argument, Jackson further relies on

Coleman’s testimony that Jackson never stayed the night at her apartment when K.B.

and her siblings were there and that she never left K.B. alone in the apartment. Again,

we point out that the trial court was in the best position to judge the credibility of the

witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph

one of the syllabus; State v. Shepard, 1st Dist. Hamilton No. C-190747, 2021-Ohio-

964, ¶ 62. It was aware of the familial relationship between Coleman, Jackson, and

K.B., and it was entitled to believe some, all, or none of Coleman’s testimony.

       {¶79} This was not the rare case in which the trier of fact lost its way and

committed a manifest miscarriage of justice in convicting Jackson. See Thompkins,

78 Ohio St.3d at 387, 678 N.E.2d 541. Jackson’s convictions were supported by both

the sufficiency and the weight of the evidence. The fifth and sixth assignments of error

are, accordingly, overruled.


                                      Conclusion


       {¶80} Having overruled all six assignments of error raised by Jackson, we

affirm the trial court’s judgment.

                                                                    Judgment affirmed.



                                               26
                      OHIO FIRST DISTRICT COURT OF APPEALS




WINKLER and BOCK, JJ., concur.




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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