State v. Dew

[Cite as State v. Dew, 2024-Ohio-69.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 112593
v. :

WILLIAM DEW, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 11, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-660693-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Adrienne E. Linnick, Assistant Prosecuting
Attorney, for appellee.

Wegman Hessler Valore and Dean M. Valore, for
appellant.

KATHLEEN ANN KEOUGH, A.J.:

Defendant-appellant, William Dew, appeals from the trial court’s

judgment of conviction entered following a jury trial and the court’s denial of his
motion for a new trial. For the reasons that follow, we affirm his convictions and the

trial court’s decision denying his motion for a new trial.

I. Procedural History

In August 2021, Dew was named in a ten-count indictment charging

him with rape, in violation of R.C. 2907.02(A)(1)(b) with a sexual motivation

specification (Count 1); rape, in violation of R.C. 2907.02(A)(2) (Counts 2-6);

domestic violence, in violation of R.C. 2919.25(A) (Count 7); one count of

endangering children, in violation of R.C. 2919.22(B)(1) with a furthermore

specification of serious physical harm (Count 8); endangering children, in violation

of R.C. 2919.22(B)(1) (Count 9); and interference with custody, in violation of R.C.

2919.23(A)(1) (Count 10).1 The charges stemmed from allegations that Dew sexually

assaulted his daughter.

II. Jury Trial

Prior to the start of trial, the state moved to amend Count 1 by deleting

the sexual motivation specification and dismissed Count 8. The remaining offenses

were tried to a jury that considered the following testimony and evidence.

In 2020, Antoinette Tredanary accepted the victim into her home

after receiving a call from the Mentor Police Department. According to Antoinette,

the victim’s grandmother had just passed away, and the victim told her that she had

nowhere to go. She said that during this time, the Lake County Division of Children

1 Dominic Tredanary, Sr. (“Dominic”), was also named as a codefendant in Counts

8-10.
and Family Services (“LCDCFS”) had an informal involvement — just checking in

with the victim; making sure she was safe and attending school. She said that the

victim lived with her for about two months and regularly attended school, but that

the victim wanted to go back and live with Dew. In July 2020, LCDCFS permitted

the victim to go back with Dew, who now lived with Antoinette’s brother, Dominic,

on West 105th in Cuyahoga County. Antoinette testified that after the victim

returned to live with Dew, she received calls from LCDCFS and the school system

because the victim was no longer attending school.

Tanya Minich, a supervisor with the Cuyahoga County Division of

Children and Family Services (“CCDCFS” or “the agency”), testified that in March

2021, the victim and Dew first came to the agency’s attention because the victim was

not attending school. She said she tried to contact Dew, Antoinette, and Dominic in

an effort to locate the victim. Minich testified that she and her colleagues made

numerous unsuccessful attempts to visit the victim at Dominic’s home, but were

unable to access the inside of the home. She said that when she finally spoke with

Dew over the phone, he declined to provide any information or discuss the situation.

On March 25, 2021, a child protection specialist visited Dominic’s

home and found the victim outside with three adult men, including Dew, who

appeared intoxicated. According to Minich, neither Dominic nor Dew would allow

the specialist to speak with the victim. Accordingly, the police were notified, but by

the time police arrived, all four had gone into the home and closed the door. She

stated that they were unable to obtain access inside the home without a warrant.
Minich testified that CCDCFS then obtained a “telephonic emergency custody order”

of the victim, but they were unable to get physical possession of the victim at that

time. On April 8, 2021, CCDCFS filed a complaint for neglect and temporary custody

of the victim. Following a hearing on April 29, 2021, CCDCFS obtained pre-

dispositional emergency temporary custody of the victim, and on April 30, 2021, the

agency filed a missing person’s report.

Minich testified that on May 19, 2021, she obtained Dew’s phone

number from Mentor schools and spoke with Dew on the phone. According to

Minich, Dew acknowledged that CCDCFS had obtained custody of the victim, which

he was interfering with, but indicated that he was not willing to provide the agency

with any information. She stated that on May 20, 2021, the agency filed charges

against Dew for interfering with custody.

In the meantime, Minich spoke with the victim’s half-sister, A.K.

During their conversations on May 19 and 28, 2021, A.K. expressed concerns that

“her younger sister was being sexually molested” by Dominic. Minich testified that

on June 15, 2021, Cleveland police removed the victim from Dominic’s home and

transported the victim to MetroHealth Medical Center.

Sergeant Dustin Vowell testified that he was working as a detective

with Cleveland Police Department Sex Crimes Unit when he received information

that the victim was being sexually abused at Dominic’s home. He said that he

obtained a search warrant for the residence located at 3485 West 105th Street in

Cleveland. Sergeant Vowell testified that the search warrant was executed at the
residence on June 15, 2021, with the assistance of the SWAT unit. Once inside the

residence, officers located the victim and Dew’s developmentally disabled sister

living in deplorable living conditions. Detective Vowell testified that the inside of

the residence was “probably one of the worst residences I’ve personally gone in on a

search warrant.” (Tr. 973.) The jury saw photographs of the conditions inside of

Dominic’s home that included mounds of clutter, garbage, debris, and animal feces.

Michael Bokmiller, a supervisor in CCDCFS’s sex abuse unit, testified

that he was assigned to the victim’s case on May 28, 2021, when the agency received

an allegation that the victim was being sexually abused by Dominic. He stated that

Tabitha Mazza, a social worker with CCDCFS, was assigned, and with the help of the

Cleveland police department, attempted to locate the victim at Dominic’s home.

He stated that on June 15, 2021, he received a call that Cleveland

police had recovered the victim and arrested Dominic. Bokmiller testified that he

met the victim at MetroHealth Medical Center and when he informed her of the

allegations against Dominic, “her immediate response was to deny that Dominic had

done anything[,] and she immediately said that [Dew] had been raping her for four

years.” (Tr. 532.) Bokmiller said that the victim “specifically said that [the abuse

occurred] since she was 12. And at the time of this — at this point in 2021 she was

16.” (Tr. 535.) He stated that the victim disclosed to him that the last incident of

abuse occurred about “a month ago,” and that Dominic confronted Dew about it

because she confided in Dominic about “something that her father had done.” (Tr.

532.) Bokmiller testified that the victim was extremely upset that she would be
placed in foster care and not with the Tredanary family, specifically, with Antoinette.

He admitted, however, that she never requested that she be returned to Dew’s

custody.

Tabitha Mazza testified that she previously worked at CCDCFS as an

investigative worker in the sex abuse unit. Her duties included completing the

investigation to ensure child safety and conducting forensic interviews to assess if

the allegations of abuse were substantiated. Mazza stated that she was assigned to

the victim’s case and that the victim completed two forensic interviews. She said

that Chavely Hernandez conducted the first interview the day after the victim was

recovered, and Mazza conducted a follow-up interview approximately a month later.

According to Mazza, the victim made “disclosures” during her

interview with Hernandez that Mazza believed were “important” to follow up on.

Although Mazza was not permitted to testify about those disclosures, she testified

that the victim reported to her that “she had been raped by [Dew]” multiple times.

(Tr. 598-599.) She said that the victim disclosed that the most recent assault had

occurred approximately one month prior to her removal from Dominic’s home, but

that the sexual abuse began when she was younger. According to Mazza, the victim’s

disclosures were not particularly specific, which she said is not uncommon in

forensic interviews of child victims. Mazza said that despite the victim being asked

to describe exactly what had occurred, she only responded that Dew raped her and

“she was very hesitant on giving me the information. * * * She said, he made me

[perform fellatio]. And then she just said had sex.” (Tr. 600). According to Mazza,
the victim did not provide details or expound about “rape” and “sex.” She found it

significant that the victim’s disclosures lacked detail, particularly because at age 16,

she would be able to provide more detail. The victim told Mazza that on one

occasion, Dew “gave her something” because she was not feeling well and then he

raped her. (Tr. 599.) Mazza said that the victim also described the final sexual

assault when she tried to fight back and Dew punched her in the face. (Tr. 637-638.)

According to Mazza, the victim did not want to return to Dew’s custody — “[the

victim] said that the way she was feeling right now she could shoot [Dew] and not

care.” (Tr. 602.) She said that the victim was angry with Dew for “abandoning her,”

which Mazza acknowledged could be a reason why the victim was accusing him of

sexual abuse. (Tr. 616, 623-624.)

Mazza testified that she attempted to reach out to Dew about the

victim’s allegations. She stated that she briefly talked to him after she received a call

from A.K. According to Mazza, Dew told her “no and hung up.” (Tr. 605.) She said

that was the last contact she had with him.

On cross-examination, Mazza acknowledged the victim’s relationship

with Dominic made her uneasy because he was an adult male whom the victim spoke

of with admiration and defended. According to Mazza, Dominic appeared to have

engaged in grooming behaviors with the victim, while Dew had not. (Tr. 623.) She

stated that the victim found Dominic to be more of a “real dad than her own father,”

and that “he’s the only one that protects her.” (Tr. 617.) In fact, when Mazza

discussed with the victim the condition of Dominic’s house and that it was described
as “very disgusting” and the “worst house anybody [had] ever seen,” the victim was

defensive about the conditions, stating that they were going to clean it the day the

police arrived. (Tr. 627.) Mazza stated that A.K. told her in June 2021 that she had

concerns that Dominic was sexually abusing the victim.

Chavely Hernandez testified that she previously worked at CCDCFS

as a short-term service worker in the sex abuse unit. She explained that her job

duties included investigating allegations of sexual abuse. Hernandez testified that

she conducted a forensic interview with the victim, who told her that “her father had

raped her multiple times” starting at the age of 12 until she was 16 years old. (Tr.

1054.)

A.K. testified that she was Dew’s biological child and that the victim

was her half-sister. Even though she was close with Dew during her childhood, she

was not close with the victim. A.K. testified that in 2020, the victim lived in Mentor

with Dew, his mother, and his autistic sister. She said that in July 2020, she

attempted to visit her father at his home in Mentor, but no one was home — after

that she lost contact with Dew. A.K. stated that she learned in December 2020 from

Dew’s friend that her grandmother had passed away in July 2020.

A.K. testified that she then began searching for the victim and Dew.

She said that she communicated with Dominic, a friend of Dew’s, to try to locate

them. According to A.K., Dominic would only give her “updates” that the victim and

Dew were “fine.” (Tr. 353-354.) She said that Dominic was not giving her “the

information I wanted [about how they were doing]. Just little bits and pieces that
made no sense to me.” (Tr. 361.) She testified that she attempted to reach both the

victim and Dew by posting on a Mentor Facebook page, and during the summer of

2021, she distributed fliers containing pictures of them because she believed “they

were missing.” (Tr. 361.) She also stated that Mentor Police contacted her and she

reported to them that both the victim and Dew were missing.

A.K. testified that in September 2021, she saw Dew at a local

convenience store and they rekindled their father-daughter relationship. She stated

that they began to see each other more regularly, usually at her home or the park.

She said that during these visits she asked about the victim maybe “only once or

twice.” (Tr. 372.) She said that she regularly visited with Dew until January 2022.

In fact, A.K. admitted that the state compelled her to testify at trial.

A.K testified that she did not remember contacting law enforcement

or making any missing person report because it was “so long ago.” However, the

state introduced evidence that in April 2021, A.K. filed a missing person’s report

regarding the victim and Dew, and Mazza and Minich both testified that they spoke

with A.K. about her concerns regarding the victim. Minich testified that she spoke

with A.K. in May 2021, and Mazza stated that she met with A.K. in June 2021.

During her testimony, the court declared A.K. as a court’s witness

when A.K. became evasive and denied having any independent recollection of a

video-recorded interview with Cleveland police on June 16, 2021. The state showed

A.K. the video recording in an attempt to refresh her recollection. A.K.

acknowledged that the video showed various things — the time stamp and that she
was in the video — but maintained she did not recall the event. She further denied

knowing the identity of the other person shown in the video but acknowledged that

person was wearing a police badge. The state then had A.K. listen to the recorded

interview on headphones. Even after listening to the entire interview, she again

denied having any independent recollection of the encounter. After being declared

a court’s witness, A.K. eventually acknowledged telling the police in the interview

that she was concerned for the victim because Dew was “dangerous,” that she

believed Dew was touching the victim inappropriately, and that Dew should not

have custody of either the victim or his disabled sister. (Tr. 389-390, 420.)

On cross-examination, A.K. testified that she had also raised concerns

that Dominic was sexually abusing the victim and the victim never told her that Dew

“was doing anything inappropriate to her.” (Tr. 416.)

The victim testified that at age twelve, she lived with her mother and

Dew in his Mentor home. She said that her mother passed away on October 20,

2016. The victim stated that following her mother’s death, her relationship with

Dew “escalated down pretty quick.” (Tr. 685.) She said that he blamed her for his

inability to date women, calling her a “cockblocker.” (Tr. 685-686.) She described

one incident where Dew broke her phone while she was talking to her sister K.H.,

and said that her mother’s ex-boyfriend threatened Dew about the incident. She

also testified that Dew would remark on the similarity between her appearance and

that of her mother, and she felt that the comment was not “like in a daughterly
manner” or that it was “in like a good thing.” (Tr. 688.) She stated that she was

“terrified of him for a long time.” (Tr. 708.)

The victim testified about the first time Dew sexually assaulted her.

She said that it occurred in the summer or fall, “right around the time after my mom

passed” when she was between “12 and 13,” after she told Dew that she had a bad

toothache. (Tr. 693-694, 700.) The victim said Dew gave her a white powdery

substance to rub on her tooth, which caused her to “feel like there was really heavy

weights on my eyes that was preventing me from trying to open them. I was slurring

my words. I couldn’t sit up straight. I wasn’t able to walk by myself.” (Tr. 695.) She

stated that Dew then took her to the store with him to purchase cigarettes. The

victim said that Dew had to help her to the car because she was unstable. She

described “blacking in and out” in the car on the way to and from the store. She

remembered “more of a black out and just pain * * * pain that I never want to feel

again.” (Tr. 696-697.) The victim stated that her “pants were pulled down” and that

she felt pain in her vagina “like there was being something forced that my body

wasn’t accepting of.” (Tr. 698.) She said that Dew was causing this pain — “it felt as

if he had had his [penis] in me.” (Tr. 699.) The victim said that she was unsure how

long the assault occurred, but when she woke, she could tell her pants had been

manipulated. She stated this was not the only time that Dew sexually assaulted her;

she was unsure of the total number of times but believed that it occurred more than

five times.
 The victim said the last assault occurred in June 2021, when she tried

fighting back, but ended up with a black eye. (Tr. 708.) The victim remembered

that she was walking with Dew on the street and then went down an alley when he

“just went to snatch” her and grabbed her arms. She stated that when she defended

herself, Dew punched her. (Tr. 714-715) The victim said that she “started to gain

some type of consciousness” and “feeling a really bad pain” in her vagina. (Tr. 717-

718.) The victim testified that this pain was from Dew raping her. She said that after

gaining consciousness, she found her way back to Dominic’s house, where she

locked herself in an upstairs bedroom. According the victim, when Dominic woke

her, he noticed her eye and questioned her about it. She said she confided to

Dominic what Dew had done and that Dominic confronted Dew about her

disclosure. She stated that after this confrontation, Dew left the house and never

hurt her again.

The victim testified that other sexual assaults occurred but she

admitted that the details were “not vivid enough * * * to even remember where it

happened.” (Tr. 733.) She stated that she remembered, however, that Dew forced

her to perform fellatio when she was age 14 or 15. (Tr. 734.)

On cross-examination, the victim acknowledged that she resented

Dew and was angry at him over his failure as a father to provide for her. She stated

that Dominic acted more like a father to her, and she admitted that she wanted to

help and protect him. The jury also heard the victim admit that her statements to

police and others were often contradictory, including some of the details
surrounding the sexual assaults. Nevertheless, the victim unequivocally stated that

Dew raped her from age 12 until she was 16.

At the close of the state’s case-in-chief, the court granted the state’s

Crim.R. 7(D) motion to amend the indictment to conform with the evidence at trial

in Counts 1, 2, and 6, and granted Dew’s Crim.R. 29 motion for judgment of acquittal

on Counts 3, 4, and 5 that all charged Dew with rape.2

The jury found Dew guilty of rape as amended in Counts 1 and 2; rape

as amended in renumbered Count 3; domestic violence as charged in renumbered

Count 4; endangering children as charged in renumbered Count 5; and interference

with custody as charged in renumbered Count 6.

Prior to sentencing, Dew filed a Crim.R. 33 motion for a new trial,

contending that the victim allegedly sent text and social media messages to her sister

and niece recanting her accusations against Dew. Following an evidentiary hearing,

the trial court denied Dew’s motion.

At sentencing and following the application of the Reagan Tokes Law

on qualifying offenses, the trial court imposed concurrent sentences and ordered

Dew to a life sentence with parole eligibility after serving ten years in prison.

Dew now appeals, raising four assignments of error that will be

addressed out of order.

2 Following this ruling, the trial court renumbered the counts the jury would

consider so that the counts were identified sequentially. Hereinafter, this court will refer
to the counts in the indictment as they were renumbered.
III. Sufficiency of the Evidence

In his fourth assignment of error, Dew contends that his conviction

for rape, as charged in Count 1 of the indictment, was not supported by sufficient

evidence. Specifically, he contends that the state presented insufficient evidence

that the victim was under the age of 13 at the time of the offense because the victim

only offered a vague recollection of when the first rape occurred; she could not

specify a more precise date.

The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Cottingham, 8th Dist.

Cuyahoga No. 109100, 2020-Ohio-4220, ¶ 32. An appellate court’s function when

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

examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. Id.

Count 1 of the indictment charged Dew with rape in violation of R.C.

2907.02(A)(1)(b), which alleged that he engaged in sexual conduct with the victim

whose age at the time of the offense was less than 13 years old. Although the victim’s

age is an essential element under this section, “the state need not establish precise

dates of when the offense occurred, as long as a rational trier of fact could find that
the victim was less than 13 years of age at the time of the offense.” State v.

Schwarzman, 8th Dist. Cuyahoga No. 100337, 2014-Ohio-2393, ¶ 16, citing State v.

Nelson, 8th Dist. Cuyahoga No. 54905, 1989 Ohio App. LEXIS 147 (Jan. 19, 1989).

In this case, the victim testified she was born in June 2004, and that

Dew first raped her when she was 12 years old. She remembered that it occurred

after her mother passed away on October 20, 2016. At the time of her mother’s

passing, the victim was 12 years old. Although she could not specifically recall the

exact date of the rape, she testified that it occurred “shortly after” and “right around

the time after [her mother] had passed away.” (Tr. 693, 703.) The victim stated that

the first rape occurred either in the summer or fall, the leaves on the trees were green

and some were changing, and that she was not wearing a coat. (Tr. 699.)

Viewing the victim’s testimony in favor of the state, a rational trier of

fact could find that this testimony demonstrated that at the time of the rape, the

victim was less than 13 years of age. Accordingly, the stated presented sufficient

evidence to support the rape conviction as charged in Count 1. Dew’s fourth

assignment of error is overruled.

IV. Confrontation and Rape Shield

Absent a specific exception, Ohio’s rape-shield law protects both the

victim and the defendant from the admission of evidence of prior consensual and

nonconsensual sexual activity. State v. Jeffries, 160 Ohio St.3d 300, 2020-Ohio-

1359, 156 N.E.3d 859, ¶ 30. However, “[b]ecause prior false accusations of rape do

not constitute ‘sexual activity’ of the victim, the rape-shield law does not exclude
such evidence.” State v. Boggs, 63 Ohio St.3d 418,423, 588 N.E.2d 813 (1992); State

v. Dandridge, 8th Dist. Cuyahoga No. 109608, 2021-Ohio-3355, ¶ 79. Accordingly,

“before cross-examination of a rape victim as to prior false rape accusations may

proceed, the trial judge shall hold an in camera hearing to ascertain whether such

testimony involves sexual activity and thus is inadmissible under R.C. 2907.02(D),

or is totally unfounded and admissible for impeachment of the victim.” (Emphasis

sic.) Boggs at 424. The defense bears the burden of demonstrating that the

accusations were totally false and unfounded before a trial court will consider

permitting the defense to cross-examine on prior false accusations. Id. at 423. Even

if false accusations are proven, it is still within the sound discretion of the trial court,

pursuant to Evid.R. 608(B), whether to allow such cross-examination. Id. at 424.

Application of the rape-shield statute may not, however, unduly

infringe upon a defendant’s constitutional right of confrontation, right to a fair trial,

and right to present a defense. State v. Dawson, 2017-Ohio-965, 86 N.E.3d 672,

¶ 21 (8th Dist.), citing State v. Young, 8th Dist. Cuyahoga No. 92127, 2009-Ohio-

5354; State v. Gardner, 59 Ohio St.2d 14, 17-18, 391 N.E.2d 337 (1979). In

determining whether the law would unconstitutionally infringe on a defendant’s

rights, “the trial court must balance the interests of the law against the probative

value of the evidence excluded by the trial court.” Gardner at id. “In order for the

contested evidence to be admitted, its probative value must be more important than

merely to attack the credibility of a witness.” Gardner at 17.
 Dew requested a Boggs hearing, contending that the victim disclosed

to him that a bus driver had previously raped her. He claimed that because the

victim told the police that only Dew had ever raped her, a hearing was necessary to

determine whether this prior accusation of sexual activity was false and the victim

could be subject to cross-examination on the accusation.

The trial court conducted a hearing at which the victim testified about

two prior incidents. The victim stated that the first incident occurred during the bus

ride on the way home from school. She stated that the driver of a school

transportation van stopped at a gas station and purchased three cups of coffee. She

testified that after drinking the coffee, she “started feeling really weird.” (Tr. 134.)

She stated that she remembered that she started to doze off, but that she

remembered him putting “his hand on his private part * * * his penis.” (Tr. 136-137.)

On cross-examination, she admitted that she told Dew that she was raped on the

school bus by the driver but was now unable to provide “full details because I don’t

100 percent completely remember because I’ve been putting it behind me.” (Tr.

139.) She admitted that she did not tell the police officers the truth about this

incident because she “didn’t want to bring anything else into it.” (Tr. 142.)

During the hearing, the victim also disclosed that another individual

by the name of “John” had raped her. She testified that she told her friend that this

occurred. Although the victim first stated that the accusations against John were

false, (tr. 145), she clarified, stating the statement that she made to her friend about

John raping her was not a false statement. (Tr. 146.)
 At the close of the hearing, the trial court concluded that Dew

failed to meet [his] burden of establishing that the victim’s prior
accusations were clearly unfounded. As such, the [c]ourt is not going
to allow any cross-examination or mentions regarding the bus driver
sexual assault or any sexual assault regarding John. Lastly, even in
construing this evidence in the light most favorable to the defense, the
probative value of any relevant evidence would be substantially
outweighed by unfair prejudice.

(Tr. 153-154.) The defense asked whether it could question the victim about being

truthful with the police. The trial court clarified the defense would be “held to that

answer that she gives,” and that it would not be permitted “to get into any allegations

of prior sexual activity, false accusations, alleged false accusations that are not false

regarding the bus driver Mentor or John. Don’t bring up any of that stuff.” (Tr. 154.)

Prior to the victim testifying at trial, the court again addressed its

Boggs hearing decision regarding whether the defense could cross-examine the

victim about her being untruthful with the police about whether she had any prior

incidents of sexual activity resulting in sexual assaults. The court concluded that

“being cross-examined on that statement would violate rape shield. So, I’m going to

preclude the defense from cross-examining her regarding the statement to police

that she’s never been a victim of sexual assault regarding anyone besides” Dew. (Tr.

329-330.) The court clarified for the defense, “[m]y ruling will continue to stand

regarding any previous allegations of false sexual assaults, that there was not clear

evidence produced by the defendant that [the victim] has any previous false

accusations of sexual assault and as such, there will be no questioning as to any

incident of sexual assault regarding the bus driver or John.” (Tr. 330.)
 In his second assignment of error, Dew contends that he was denied

due process of law when the trial court violated his right to confront witnesses by

denying him the ability to cross-examine the victim about her prior allegations that

she was sexually assaulted by a school transportation bus driver and “John.”

Specifically, Dew contends that the victim did not testify that any actual sexual

activity occurred in either incident, and thus the rape-shield statute did not apply.

The trial court held a Boggs hearing to determine whether the

victim’s prior accusations of sexual abuse by the bus driver and “John” were false,

and whether cross-examination on that subject would be allowed at trial. At the

hearing, the victim admitted that she told her father that the bus driver raped her

and testified that her accusation against the driver was truthful and that sexual

activity was involved. Additionally, the victim admitted that she told her friends that

“John” raped her. Although her responses to questions were confusing about

whether her statement to her friends was truthful when specifically asked, the victim

said that the statement about John was not false. Accordingly, because the victim

never admitted that she made any prior false accusations, further inquiry on the

prior abuse was prohibited by Ohio’s rape-shield law. See Boggs, 63 Ohio St.3d at

421-423, 588 N.E.2d 813.

Admittedly, the victim gave vague and conflicting testimony during

the Boggs hearing. Nevertheless, the trial court determined that Dew failed to

withstand his burden of demonstrating that the sexual activity alleged between the

bus driver and John were fabrications or totally unfounded. As such, the trial court
did not abuse its discretion in finding that the evidence falls within R.C. 2907.02(D)

and was not admissible under the rape-shield statute.

Moreover, we find that the evidence of the prior abuse merely served

as a means to attack the victim’s credibility, which is insufficient to overcome the

rape-shield law. Accordingly, even if no sexual activity was involved, the trial acted

within its discretion under Evid.R. 608(B) to prohibit the defense from questioning

the victim about her prior accusations.

Dew’s second assignment of error is overruled.

V. Crim.R. 33 Motion for a New Trial

After a jury found Dew guilty, but prior to sentencing, Dew sought a

new trial pursuant to Crim.R. 33(A)(2) and (6) and R.C. 2945.79. In support, he

provided affidavits from A.K. and her daughter, E.A., averring that they received

social media and text messages from the victim recanting her trial testimony.

According to Dew, this newly discovered evidence is sufficient to warrant a new trial.

The trial court conducted a hearing on Dew’s motion, and both A.K.

and E.A. provided sworn testimony. Photographs of the messages allegedly sent by

the victim were introduced into evidence. During the hearing, A.K. testified about

the circumstances surrounding the messages. She stated that on November 18,

2022, she received a text message from an unknown number, allegedly from the

victim, indicating that her accusations were meant to “get rid of” Dew. A.K. testified

that a few days later, she received Facebook messages again purportedly from the

victim stating that Dew “never touched her” and that she “lied to everyone.”
According to A.K., the victim apologized for “blocking her” on Facebook, but created

this new page to communicate with her. Despite creating the new page for this

purpose, “the victim” told A.K. that the new page would be deleted after this

communication. On cross-examination, A.K. admitted that since the guilty verdict,

there had been 134 calls with Dew and that he knew someone communicated with

the victim about lying. Additionally, she acknowledged that she cancelled the

appointment with the detective who wanted to check her phone regarding the texts

and communications that were allegedly from the victim. Finally, although A.K.

believed that the messages were from the victim, she admitted that she did not have

any information to confirm who sent the messages.

E.A. also testified about text messages she allegedly received from the

victim on November 20, 2022. She stated that she was not close with the victim and

was thus, surprised that she received these messages because she did not have the

victim’s cell phone number or give the victim her phone number. She stated that

she had no desire to reach out to the victim nor did she want to help Dew, even

stating that “I just don’t like him.” (Tr. 1263.) She admitted that she did not know

who actually sent her the messages.

Following the hearing, the trial court issued a detailed written

decision denying Dew’s motion. The court determined that the circumstances

surrounding the receipt of the messages “suggest[s] that those communications did

not come from [the victim].” In making this conclusion, the court reasoned:
 First, there is no credible evidence [that the victim] is behind these
alleged recantations. The text messages sent to [A.K.] and [E.A.] came
from two different, unknown phone numbers. Further, the Facebook
communications with [A.K.] came from a newly-created Facebook
page. If [the victim] wanted to communicate with [A.K.] via Facebook,
she could simply “unblock” her from her main Facebook page. The fact
that these communications took place instead over a newly-created
Facebook page raises great suspicion with this Court.

The trial court further determined that even if the victim sent the communications,

they would have only served to contradict or impeach the victim’s trial testimony,

which under the relevant case law, was insufficient for granting a new trial.

In his first assignment of error, Dew contends that the trial court

erred in denying his motion.

A motion for a new trial under either R.C. 2945.79 or Crim.R. 33 may

be premised upon newly discovered evidence. Under either authority, a new trial

may be granted when new evidence material to the defense is discovered that the

defendant could not with reasonable diligence have discovered and produced at the

trial and that materially affected the defendant’s substantial rights. R.C. 2945.79(F);

Crim.R. 33(A)(6). To warrant a new trial based on newly discovered evidence, the

defendant must show that the new evidence

(1) discloses a strong probability that it will change the result if a new
trial is granted, (2) has been discovered since the trial, (3) is such as
could not in the exercise of due diligence have been discovered before
the trial, (4) is material to the issues, (5) is not merely cumulative to
former evidence, and (6) does not merely impeach or contradict the
former evidence.

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
 The decision to grant or deny a motion for a new trial is within the

sound discretion of the trial court and will not be disturbed on appeal absent an

abuse of that discretion. State v. Schiebel, 55 Ohio St.3d 71, 76, 564 N.E.2d 54

(1990). “‘Abuse of discretion’ is a term of art, describing a judgment neither

comporting with the record, nor reason.” Klayman v. Luck, 8th Dist. Cuyahoga Nos.

97074 and 97075, 2012-Ohio-3354, ¶ 12, citing State v. Ferranto, 112 Ohio St. 667,

676-677, 148 N.E. 362 (1925). “‘A decision is unreasonable if there is no sound

reasoning process that would support that decision.’” Klayman at id., quoting

AAAA Ent. Inc. v. River Place Comm. Urban Redevelopment, 50 Ohio St.3d 157,

161, 553 N.E.2d 597 (1990).

Generally, newly discovered evidence that purportedly recants

testimony given at trial is looked upon with the utmost caution. State v. Nash, 8th

Dist. Cuyahoga No. 87635, 2006-Ohio-5925, ¶ 10. An affidavit recanting witness

testimony is “‘viewed with extreme suspicion because the witness, by making

contradictory statements, either lied at trial, or in the current testimony, or both

times.’” Id., quoting State v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11,

¶ 29. Therefore, “‘there must be some compelling reason to accept a recantation

over testimony given at trial.’” Id., quoting State v. Fortson, 8th Dist. Cuyahoga No.

82545, 2004-Ohio-5387, ¶ 13. When evaluating a motion for a new trial based upon

a witness’s recanted testimony, the trial court must evaluate the credibility of the

recanting witness or in some cases, the source supplying the alleged recantation.
See, e.g., Toledo v. Easterling, 26 Ohio App.3d 59, 60, 498 N.E.2d 198 (6th

Dist.1985).

In this case, there was no direct evidence of the victim recanting her

accusations or trial testimony. Rather, the source of the evidence was from the

sworn testimony of two individuals who believed that they received communications

from the victim in which she purportedly recanted her accusations. Despite their

sworn statements and testimony, both admitted that they did not know who actually

sent the messages.

We are cognizant that the same trial judge presided over the Boggs

hearing, the trial, and the hearing on the motion for a new trial. Accordingly, the

court was familiar with the testimony of the victim and A.K., including their delivery,

demeanor, and relationship with each other and Dew, and therefore, deference to

the trial court is given when viewing witness credibility. We find that the trial court

exercised a sound reasoning process in finding the circumstances surrounding the

receipt of the messages suspect and questioning whether the victim actually sent the

communications. Accordingly, we find that the trial court did not abuse its

discretion in denying Dew’s motion for a new trial.

The first assignment of error is overruled.

VI. Reagan Tokes Law

Dew contends in his third assignment of error that the trial court

erred when it sentenced him to an indefinite sentence under S.B. 201, commonly

referred to as the Reagan Tokes Law, because the law is unconstitutional under the
United States and Ohio constitutions because it violates due process, the separation-

of-powers doctrine, and the right to trial by jury.

Recently, the Ohio Supreme Court rejected the arguments Dew raises

challenging the constitutionality of the Reagan Tokes Law. State v. Hacker, Slip

Opinion No. 2023-Ohio-2535. The court held that the Reagan Tokes Law is not

facially vague or unconstitutional because (1) it provides that offenders receive a

hearing before the Department of Rehabilitation and Correction (“DRC”) may

extend their prison sentence beyond the minimum but within the maximum term

imposed by the trial court, (2) the right to a jury trial is not implicated since no

determination by the DRC at the hearing changes the sentence range prescribed by

the legislature and imposed by the trial court, and (3) the authority it gives the DRC

to extend an offender’s prison sentence beyond the minimum but within the

maximum range imposed by the trial court does not exceed the power given to the

executive branch of the government and does not interfere with the trial court’s

discretion when sentencing the offender. Id. at ¶ 25, 28, 40. Accordingly, based on

the authority of Hacker, this court summarily overrules Dew’s challenges to the

Reagan Tokes Law and his third assignment of error.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR