State v. Fannin

[Cite as State v. Fannin, 2021-Ohio-2462.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, : CASE NO. CA2020-03-022

Appellee, : OPINION
7/19/2021
:
- vs -
:

JUSTIN M. FANNIN, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 19CR35665

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.

The VanNoy Firm, and Markus L. Moll, for appellant.

M. POWELL, P.J.

{¶ 1} Appellant, Justin Fannin, appeals his convictions for rape and gross sexual

imposition rendered in the Warren County Court of Common Pleas following a jury trial. For

the reasons detailed below, we affirm.

{¶ 2} In 2015, Fannin began a relationship with C.F. The victim of Fannin's

offenses, M.M., is C.F.'s daughter. At all times pertinent to this appeal, M.M. was between
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five and seven years of age. In 2016, Fannin and C.F. had a son together and were married

in August 2017. That same year the family moved to an address on Utica Road,

Waynesville, Ohio located in Warren County.

{¶ 3} M.M. had her own bedroom in the Waynesville home, but frequently woke up

during the middle of the night and would join Fannin, C.F., and her brother in their bed. In

early 2019, M.M. disclosed that between August 1, 2017, and January 31, 2019, Fannin

had sexually abused her on multiple occasions with most of the incidents of abuse occurring

while M.M. was lying in bed with Fannin. M.M. disclosed incidents where Fannin had put

his penis in her mouth, licked her anus, and digitally penetrated her vagina. M.M. also

stated that she had touched Fannin's penis and that on another occasion Fannin had

touched her vagina with his penis while she was naked in the shower.

{¶ 4} Following the disclosures, C.F. confronted Fannin, who denied that any

sexual contact had occurred between him and M.M. Fannin claimed that if it was happening

in the middle of the night, he was not aware of it. Initially, C.F. chose to believe Fannin.

However, C.F. enrolled M.M. in counseling a few weeks later because M.M. was making

sexual comments and exhibiting sexual behaviors, such as leg clenching and "gasping,

moaning almost." After M.M.'s first counseling session, a referral was made to law

enforcement for further investigation.

{¶ 5} On June 28, 2019, Fannin was indicted on three counts of rape of a child

under ten years old in violation of R.C. 2907.02(A)(1)(b), a first-degree felony, and one

count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a third-degree felony.

{¶ 6} The case proceeded to a jury trial. The state's trial witnesses included M.M.,

C.F., a pediatric nurse practitioner, Detective Kevin Barton, M.M.'s psychologist, and a

social worker who conducted a forensic interview with M.M.

{¶ 7} M.M.'s testimony detailed the sexual abuse committed by Fannin. C.F.

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testified about the family history, her interactions with Fannin, and M.M.'s disclosure of

sexual abuse. Thurman testified about her physical examination of M.M. The state, over

Fannin's objection, also presented testimony from M.P., Fannin's daughter from a previous

relationship, who was permitted to testify about being sexually abused by Fannin when she

was ten years old. After the state rested, the trial court denied Fannin's Crim.R. 29 motion

for a judgment of acquittal.

{¶ 8} Fannin presented testimony from his mother, stepfather, and nephew. His

mother's testimony primarily addressed M.P.'s testimony that Fannin had previously

sexually abused her. Fannin's mother stated that M.P. had a reputation of not being truthful

and she did not believe Fannin had abused M.P. She testified that she was not aware of

the specific allegations made by M.M. but did not believe them to be true in any event.

Fannin's nephew testified about his relationship with M.P. and her reputation for dishonesty.

{¶ 9} Fannin then testified on his own behalf, denying the allegations and stating, "I

would never have committed a [sic] sexual conduct or sexual act with a child." Fannin

acknowledged that M.P. had made allegations against him in 2010 but did not understand

why the allegations were made. Fannin also acknowledged that he had been convicted of

child endangering and had a restraining order placed on him due to M.P.'s sexual abuse

allegations. Fannin denied that he had any sexual contact with M.P.

{¶ 10} Following submission to the jury, Fannin was found guilty on all four counts

contained in the indictment. Fannin was sentenced to prison for 15 years to life on each

count of rape and 36 months for gross sexual imposition. The trial court ordered two counts

of rape and the count of gross sexual imposition to be served consecutively. The prison

term for the remaining rape count was ordered to be served concurrently for an aggregate

prison term of 33 years to life. Fannin now appeals, raising nine assignments of error for

review. For ease of discussion, we will address Fannin's assignments of error out of order.

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{¶ 11} Assignment of Error No. 1:

{¶ 12} IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO ALLOW

EVIDENCE OF PRIOR BAD ACTS OF THE APPELLANT INTO EVIDENCE

PURPORTEDLY TO ESTABLISH MOTIVE, LACK OF MISTAKE, AND/OR INTENT.

{¶ 13} In his first assignment of error, Fannin argues the trial court erred and abused

its discretion by admitting M.P.'s other-acts testimony concerning his alleged prior sexual

abuse of M.P. Fannin's argument is without merit.

{¶ 14} Evidence relating to "other crimes, wrongs, or acts" cannot be admitted for

the purpose of "prov[ing] the character of a person in order to show action in conformity

therewith." Evid.R. 404(B). It may, however, be admissible for other purposes, such as

proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident." Id.

{¶ 15} R.C. 2945.59 similarly provides that:

In any criminal case in which the defendant's motive or intent,
the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing an act is material,
any acts of the defendant which tend to show his motive or
intent, the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing the act in question
may be proved, whether they are contemporaneous with or prior
or subsequent thereto, notwithstanding that such proof may
show or tend to show the commission of another crime by the
defendant.

{¶ 16} Therefore, similar to Evid.R. 404(B), R.C. 2945.59 "preclude[s] the admission

of evidence of other crimes, wrongs, or acts offered to prove the character of an accused

in order to show that the accused acted in conformity therewith, but it does not preclude

admission of that evidence for other purposes, e.g., to show proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident." State v.

Williams, 134 Ohio St.3d 521, 2012-Ohio 5695, at ¶ 25.

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{¶ 17} The supreme court articulated a three-part analysis that must be applied when

considering the admission of other-acts testimony: the evidence must be relevant, it must

be introduced for a purpose other than proving propensity, and the probative value of the

evidence must not be substantially outweighed by the risk of unfair prejudice. Williams at

¶ 20; State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, ¶ 22. In Williams, the

defendant was convicted of rape, gross sexual imposition, and unlawful sexual conduct with

a minor, for his abuse of a teenage boy. Id. at ¶ 1. At trial, the trial court admitted evidence

that the defendant had engaged in a similar relationship with another teenage boy. Id. at ¶

7-8. The supreme court found this evidence to be admissible. Id. at ¶ 25. Though it tended

to show that the defendant had a pattern of grooming teenage boys to take advantage of

them sexually, the evidence was admissible for the purpose of refuting the defendant's

claims that he was not sexually attracted to teenage boys and establishing that the

defendant had acted with the specific intent of achieving sexual gratification. Id. at ¶ 22,

25.

{¶ 18} More recently, the supreme court issued two opinions "to help clear up some

of the confusion that exists regarding the use of other-acts evidence" and to "provide trial

courts with a road map for analyzing the admission of other-acts evidence * * *." Hartman,

2020-Ohio-4440 at ¶ 19; State v. Smith, 162 Ohio St. 3d 353, 2020-Ohio-4441, ¶ 37.

{¶ 19} In Hartman, the defendant was accused of raping an adult female

acquaintance in her hotel room after they had spent the evening out with a group of friends.

Id. at ¶ 1. To counter the defendant's claim that the sexual encounter with the victim was

consensual, the state presented evidence establishing that the defendant had sexually

abused his stepdaughter when she was a child. Id. at ¶ 12. The defendant was found guilty

of rape. Id. at ¶ 16. On appeal, the Eighth District Court of Appeals reversed the

defendant's convictions on grounds that the evidence purporting to show that he sexually

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abused his stepdaughter was inadmissible other-acts evidence under Evid.R. 404(B). Id.

at ¶ 17.

{¶ 20} The supreme court agreed with the Eighth District and held that the evidence

at issue "constituted improper propensity evidence, and the trial court erred in admitting it."

Id. at ¶ 64. In so doing, the supreme court analyzed the four rationales provided: (1) modus

operandi, (2) common scheme or plan, (3) motive, and (4) intent and absence of mistake.

The supreme court concluded that the evidence was inadmissible and created an improper

inference that the defendant "preys on sleeping or impaired women," the precise propensity

inference Evid.R. 404(b) forbids. Id. at ¶ 63-64.

{¶ 21} In the present case, the state filed a motion in limine regarding M.P.'s

testimony. The state argued that this evidence was admissible to prove "a similar scheme,

sexual motivation, sexual intent, preparation, and system in committing the offense in the

present case."

{¶ 22} The trial court found the testimony admissible and granted the state's motion

in limine, finding the evidence is relevant to establishing [Fannin's] motive and the plan to

target young girls. At trial, over Fannin's objection, the trial court permitted the state to

present M.P.'s testimony.

{¶ 23} During her testimony, M.P. described her relationship with Fannin and alleged

that he sexually abused her when she was 10 years old. M.P. believed that her relationship

with Fannin began normally but, over time, observed that he became more of a friend than

a father figure. Fannin enforced rules differently than her mother and allowed her to skip

homework assignments. M.P. recalled the instance of sexual abuse was when Fannin

asked her to "help him out" by putting her mouth on his penis while in his bedroom. This

sexual touching and contact continued over the next year. M.P. stated that she was unable

to remember every time because it happened so often but remembers some events in vivid

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detail. The abuse stopped the day before Father's Day 2010 when she disclosed the abuse

via text message to her aunt and a family friend. Fannin was initially indicted for three

counts of rape. State v. Fannin, Montgomery No. 2010 CR 02654 (Indictment) (October 7,

2010). Fannin later pled guilty to one count of endangering children, a second-degree

felony, and was sentenced to community control with an order that he have no contact with

M.P. State v. Fannin, Montgomery No. 2010 CR 02654 (Entry) (June 13, 2011).

{¶ 24} On appeal, the state maintains that the evidence was admissible to show

Fannin's motive and to establish Fannin's "plan, scheme and preparation of female children

in his home to gain their trust and confidence for the purpose of grooming them for sexual

activity."

{¶ 25} Following review, we disagree with the reasons advanced by the state in

support of the admissibility of M.P.'s testimony but find that the evidence is otherwise

admissible. First, the evidence was not admissible as "motive evidence." As discussed in

detail in Hartman "[m]otive evidence establishes that the accused had a specific reason to

commit a crime." Hartman, 2020-Ohio-4440 at ¶ 48. Evidence that Fannin sexually abused

his daughter did not provide evidence of any motive beyond which can be inferred from the

commission of the crime itself. See Hartman at ¶ 49, citing State v. Curry, 43 Ohio St.2d

66, 71 (1975) ("A person commits or attempts to commit statutory rape for the obvious

motive of sexual gratification"). Fannin's motive in this case was not a material issue in

dispute; he was undoubtedly pursuing sexual gratification. Likewise, the evidence was not

admissible as "common-plan evidence." As held in Hartman, "[c]ommon-plan evidence

generally concerns events that are 'inextricably related' to the crime charged." Id. at ¶ 41.

The other acts form the "immediate background" of the present crime and are typically either

part of the "same transaction" as the present criminal trial or part of a "sequence of events"

leading up to the commission of the crime. Id. The supreme court provided two such

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examples:

A defendant's plan might be demonstrated through evidence of
"prior preparatory acts," such as the prior theft of an
instrumentality used in the commission of the current crime. For
instance, in a prosecution for illegally manufacturing drugs
under R.C. 2925.04, evidence that the defendant recently
robbed a warehouse to steal a barrel of the ingredient
methylamine could be admissible to show the defendant's
scheme to produce methamphetamine. Or consider a case in
which the defendant is slated to inherit an estate if two other
heirs are no longer living. In a trial for the murder of one heir,
evidence showing that the defendant killed the other would not
be admissible to demonstrate that he was a cold-blooded killer,
but it could be admitted to show that he had a plan to kill the
other heirs to attain the inheritance.

Id. at ¶ 42 (Citations omitted).

{¶ 26} The evidence elicited from M.P. is not within the ambit of common plan

evidence under the precedent explained in Hartman. Fannin's sexual abuse of M.P. was

not part of a larger scheme involving the sexual abuse of M.M. For those reasons, it was

not admissible as "common-plan evidence." See, e.g., Smith, 2020-Ohio-4441 at ¶ 41

(discrete events occurring some 30 years apart are not a plan embracing both the prior

criminal activity and the charged crimes).

{¶ 27} We therefore find that the other-acts evidence was not admissible for the

purpose of establishing motive or "common-plan evidence." Nevertheless, an appellate

court shall affirm a trial court's judgment that is legally correct on other grounds, that is, one

that achieves the right result for the wrong reason, because such an error is not prejudicial.

State v. Payton, 124 Ohio App.3d 552, 557 (12th Dist.1997); State v. Lewis, 9th Dist.

Summit No. 29696, 2021-Ohio-1575, ¶ 16 (other-acts evidence admissible for alternative

reason).

{¶ 28} We find that the other-acts evidence was admissible for purposes of showing

intent and absence of mistake. "Other-acts evidence is admissible to negate a defendant's

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claim of mistake or accident with respect to the commission of the alleged crime; such

evidence tends '[t]o show, by similar acts or incidents, that the act in question was not

performed inadvertently, accidentally, involuntarily, or without guilty knowledge.'" Hartman,

2020-Ohio-4440 at ¶ 52, quoting McCormick, Evidence, Section 190, at 804 (4th Ed. 1994).

{¶ 29} In Smith, the defendant was charged with sexually abusing his

granddaughter. At trial, the state sought to introduce other-acts evidence that the defendant

had molested his daughter under similar circumstances decades earlier. Id. at ¶ 1. The

defendant admitted applying baby oil to the victim's body but said that he did so without any

sexual intent and any contact with her private parts was accidental. Id. at ¶ 44. The

defendant's response to allegations that he pressed his penis against the victim was that, if

it happened, it was an accidental result of his tendency to get erections while sleeping. Id.

He further denied allegations of showing the victim pornography by claiming that she had

seen an R-rated movie that accidentally started playing. Id. Because the defendant placed

his intent at issue by claiming that his actions were accidental and not done with sexual

intent, the evidence was properly admissible to show absence of mistake — or to put it

another way, that he committed the acts not accidentally, but with the intent of sexual

gratification. Id. ¶ 47.

{¶ 30} In the present case, Fannin denied that he had any sexual contact or engaged

in any sexual conduct with M.M. and generally denied that he would ever engage in "sexual

conduct or [a] sexual act with a child." As previously noted, when C.F. learned that M.M.

had been "touching" Fannin in bed, his response was that "if it had been happening in the

middle of the night, that he wasn't aware of it." In other words, Fannin was claiming that

these alleged instances were accidental, inadvertent, or unintended. In his trial testimony,

Fannin categorically denied that he would have sexual contact with a child.

{¶ 31} Because Fannin placed his intent at issue by claiming that his actions were

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accidental, innocent, or without his knowledge, the other-acts evidence relating to M.P. was

properly admissible to show intent and the absence of mistake. Furthermore, just as the

supreme court reasoned in Williams, Fannin's prior conduct rebutted his denials that he

would ever commit a sexual act with a child.1 As in Smith, we agree that this evidence is

probative and admissible to show intent and the absence of mistake.

{¶ 32} We also do not believe the trial court abused its discretion in deciding that the

probative value of the other-acts evidence was not substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury.

{¶ 33} Furthermore, the trial court explicitly instructed the jury, prior to M.P.'s

testimony and again before the jury retired to deliberate, that M.P.'s testimony was not to

be considered as propensity evidence. The jury is presumed to follow the trial court's

instructions. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 103. As a result, we

find the trial court did not abuse its discretion by admitting the other-acts evidence after

weighing its probative value against its prejudicial effect. Fannin's first assignment of error

is overruled.

{¶ 34} Assignment of Error No. 3:

{¶ 35} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

PERMITTED AN INCOMPETENT MINOR WITNESS TO TESTIFY.

{¶ 36} In his third assignment of error, Fannin argues the trial court erred by

permitting M.M. to testify because she did not have the ability to receive accurate

impressions of fact and did not possess the ability to communicate what she had observed.

Fannin's argument is without merit.

{¶ 37} Evid.R. 601 sets forth general rules of competency. Former subsection (A),

1. In Williams, the supreme court found that the other acts evidence was admissible to rebut the defendant’s
claim that he was not sexually attracted to teenage boys.
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which was in effect at the time of trial, provided:

Every person is competent to be a witness except:

(A) Those of unsound mind, and children under ten years of age,
who appear incapable of receiving just impressions of the facts
and transactions respecting which they are examined, or of
relating them truly."

In determining whether a child under ten years old is competent to testify, the trial must take

into consideration: "(1) the child's ability to receive accurate impressions of fact or to

observe acts about which he or she will testify, (2) the child's ability to recollect those

impressions or observations, (3) the child's ability to communicate what was observed, (4)

the child's understanding of truth and falsity and (5) the child's appreciation of his or her

responsibility to be truthful." State v. Frazier, 61 Ohio St.3d 247, 251 (1991).

{¶ 38} A child witness under ten years old may be competent to testify even though

the child is unable to recollect all of the facts of a given situation. State v. Fry, 125 Ohio

St.3d 163, 2010-Ohio-1017, ¶ 76. The child's answers must demonstrate that the child "can

perceive and recall generally and understands the concept of truthfulness." Id. A trial

court's finding that a child under the age of ten is competent to testify shall not be disturbed,

absent an abuse of discretion. In re M.G., 12th Dist. Butler No. CA2015-06-126, 2016-

Ohio-2677, ¶ 18.

{¶ 39} The trial court conducted an examination of M.M. to determine her

competency to testify. During the examination, M.M. responded to the trial court's

questions, communicated her first name, her age, her younger brother's age, where and

with whom she lived, what school she went to, what grade she was in, her second grade

teacher, her first grade teacher, her favorite subject, that she was home schooled the

previous year, who was home with her when she was home schooled, where her stepfather

was when she was home schooled, and where they went on summer vacation, who went

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with her and how long she was gone. M.M. also stated that she knew the difference

between telling the truth and telling a lie and demonstrated her ability to tell the difference.

She explained that lying was not good and "[y]ou get in big trouble" when you lie.

{¶ 40} Fannin challenges M.M.'s competency on the basis of her inability to answer

questions about what she had for lunch the previous day, her birth year, her last name, her

relationship to Fannin, and where she spent her last Christmas. He also cites M.M.'s

inability to remember what he characterizes as inconsistencies between her trial testimony

and what she told the forensic interviewer.

{¶ 41} However, upon review of the record, we find the trial court did not abuse its

discretion when it permitted M.M. to testify. Although M.M. did not know the answers to

some of the court's questions, she did know the answer to most of them and many of the

facts she provided were also corroborated by her mother at trial. Moreover, given M.M.'s

relationship with Fannin as her stepfather and the confusion surrounding her last name,

which had changed several times, it is not surprising that she would have been confused

about certain details of her life. See, e.g., State v. Tillman, 12th Dist. Butler No. CA2003-

09-243, 2004-Ohio-6240, at ¶ 12 (five-year-old victim permitted to testify despite difficulty

in answering some questions); State v. McNeill, 83 Ohio St.3d 438, 443 (1998) ("[w]hile the

children could not answer every question posed, the transcript indicates they were in fact

able to receive, recollect, and communicate impressions of fact, and appreciate the

responsibility to be truthful"). Additionally, any inconsistency between M.M.'s trial testimony

and her prior forensic interview relate to her credibility, not her competency. As a result,

we find the trial court did not err by allowing M.M. to testify. Fannin's third assignment of

error is overruled.

{¶ 42} Assignment of Error No. 4:

{¶ 43} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. FANNIN AS

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THERE WAS INSUFFICIENT EVIDENCE TO CONVICT.

{¶ 44} Assignment of Error No. 5:

{¶ 45} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. FANNIN

BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 46} In his fourth and fifth assignments of error, Fannin argues that his convictions

are not supported by sufficient evidence and are against the manifest weight of the

evidence. We will address both arguments together.

{¶ 47} The concepts of sufficiency of the evidence and weight of the evidence are

legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10.

Nonetheless, as this court has observed, a finding that a conviction is supported by the

manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones,

12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. "Because sufficiency is

required to take a case to the jury, a finding that a conviction is supported by the weight of

the evidence must necessarily include a finding of sufficiency." State v. Hart, 12th Dist.

Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.

{¶ 48} A manifest weight challenge scrutinizes the proclivity of the greater amount of

credible evidence, offered at a trial, to support one side of the issue over another. State v.

Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing whether

a conviction is against the manifest weight of the evidence, a reviewing court examines the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of the witnesses, and determines whether, in resolving conflicts in the evidence, the trier of

fact clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Morgan, 12th Dist. Butler Nos. CA2013-

08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.

{¶ 49} Rape is defined under R.C. 2907.02 and provides "[n]o person shall engage

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in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he

other person is less than thirteen years of age[.]" Sexual conduct includes, inter alia, fellatio,

cunnilingus, and penetration of the vaginal or anal openings. R.C. 2907.01(A).

{¶ 50} Gross sexual imposition is defined in R.C. 2907.05, which states:

(A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the
offender, to have sexual contact with the offender; or cause two
or more other persons to have sexual contact when any of the
following applies:

***

(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age
of that person.

{¶ 51} The Revised Code defines "sexual contact" as "any touching of an erogenous

zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if

the person is a female, a breast, for the purpose of sexually arousing or gratifying either

person." R.C. 2907.01(B).

{¶ 52} A precise time and date of an alleged offense are not ordinarily essential

elements. State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113,

2014-Ohio-3449, ¶ 36. In sexual abuse cases involving children, it may be impossible to

provide a specific date. Id. "The problem is compounded where the accused and the victim

are related or reside in the same household, situations which often facilitate an extended

period of abuse. An allowance for reasonableness and inexactitude must be made for such

cases." State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 12.

{¶ 53} Following review, we find the state presented sufficient evidence and Fannin's

convictions are supported by the weight of the evidence. In this case, M.M. testified about

the sexual acts underlying each count in the indictment. M.M. testified that when she was

in Fannin and C.F.'s bed, he pushed her under the covers and took out his private part and

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put it in her mouth. She testified that his private part would go inside her mouth and

described it as "gross" and "slimy." On another occasion, while her mother and brother

were asleep in bed, she sat on Fannin's face and Fannin licked her "bottom" on the part

where she went to the restroom. She explained that Fannin's tongue went on the outside

of that area "and then it went inside, too." On a third occasion, M.M. testified that Fannin

put his hand inside her private and "shaked it really hard" while wiggling his hand, which

hurt. Another time, Fannin touched her private with his hand over and under her underwear

and she touched his private. And finally, M.M. explained that one time she was naked in

the shower with Fannin, and he touched his private to her private.

{¶ 54} M.M.'s testimony was corroborated by her mother, who explained that M.M.

exhibited certain physical manifestations from the abuse. M.M. told her mother that she

"couldn't * * * watch her iPad or her shows or her friends without looking at them in

inappropriate ways." M.M. also exhibited certain sexualized behaviors, such as crossing

her legs and squeezing her legs while making gasping or groaning sounds.

{¶ 55} In addition, M.M.'s psychologist, Dr. Miceli, testified that she observed

behaviors in M.M. that were consistent with children who have been sexually abused.

Those included sexualized behaviors, mood swings, anger outbursts, sleep disturbances,

and irritability. Furthermore, Dr. Miceli observed that M.M. described the sexual acts using

sensory details, such as "slimy" and "yucky." Dr. Miceli testified that those details were

significant because they suggested that she had personally experienced the sexual acts,

as opposed to merely describing something that she had seen in pornography or elsewhere.

{¶ 56} The state also presented evidence that Fannin's abuse had invaded M.M.'s

thoughts. During a group therapy session, M.M. drew a picture of her mother and brother

sleeping in bed beside her and Fannin. The drawing depicts her touching Fannin's penis

while she is crying. In the picture, Fannin has his eyes closed with a line going from Fannin's

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head that said "FAYCKSLEP." Dr. Miceli testified that M.M. told her that the drawing

depicted Fannin "fake sleeping" or pretending to sleep, which provided context for

statements she made during her forensic interview.

{¶ 57} Based on the evidence presented at trial, we find the jury's verdict was not

against the manifest weight of the evidence. The jury did not clearly lose its way in

concluding that Fannin was guilty of three counts of rape and one count of gross sexual

imposition. As the trier of fact, the jury was in the best position to judge the credibility of the

witnesses. State v. Sheldon, 12th Dist. Brown No. CA2013-12-018, 2014-Ohio-5488, ¶ 25.

Since Fannin's convictions are supported by sufficient evidence and are not against the

manifest weight of the evidence, we overrule Fannin's fourth and fifth assignments of error.

{¶ 58} Assignment of Error No. 6:

{¶ 59} A PROPERLY QUALIFIED EXPERT IS PERMITTED TO TESTIFY TO THE

ULTIMATE ISSUE IN A CASE AS LONG AS THE OPINION BASED ON INFORMATION

PERCEIVED BY THE EXPERT OR ADMITTED INTO EVIDENCE AT TRIAL. (sic) THE

COURT PERMITTED THE STATE'S MEDICAL EXPERT TO TESTIFY FROM A REPORT

WHERE THE PERSON WHO DRAFTED THE REPORT DID NOT TESTIFY AT TRIAL.

{¶ 60} In his sixth assignment of error, Fannin alleges the state's medical expert

improperly bolstered M.M.'s testimony.

{¶ 61} Evid.R. 702 allows the admission of expert testimony where the witness's

testimony relates to matters beyond the knowledge or experience of lay persons; the

witness is qualified as an expert by specialized knowledge, skill, experience, training, or

education regarding the subject matter of the testimony; and the witness's testimony is

based on reliable scientific, technical, or other specialized information. Tillman, 2004-Ohio-

6240 at ¶ 17. The decision to admit expert testimony is within the sound discretion of the

trial court and will not be reversed absent an abuse of discretion. State v. Jones, 90 Ohio

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St.3d 403, 414 (2000).

{¶ 62} In general, a witness may not give an opinion regarding the veracity of

another's witness's testimony. State v. Boston, 46 Ohio St.3d 108 (1989), paragraph one

of the syllabus; State v. Cappadonia, 12th Dist. Warren No. CA2008-11-138, 2010-Ohio-

494 at ¶ 36. However, there is an important distinction between "expert testimony that a

child witness is telling the truth and evidence which bolsters a child's credibility insofar as it

supports the prosecution's efforts to prove that a child has been abused." State v. Stowers,

81 Ohio St. 3d 260, 263 (1998). Contrary to Fannin's argument, only statements that

directly support the veracity of the witness are prohibited. State v. Boles, 12th Dist. Brown

No. CA2012-06-012, 2013-Ohio-5202, ¶ 30. This distinction recognizes the reality that,

"indirect bolstering of a victim's credibility is not the same as the direct rendering of an

opinion as to a victim's veracity that was involved in Boston." Id; see also State v. Barnes,

12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226 (expert testimony that victim's

statements were "consistent with inappropriate sexual contact" was admissible and did not

constitute improper vouching).

{¶ 63} The state presented the testimony of Dina Thurman, a pediatric nurse

practitioner at Dayton Children's Hospital. Thurman was qualified as an expert witness and

formed her opinion based on M.M.'s medical history, M.M.'s physical examination, and

Thurman's training and experience in examining hundreds of children for suspected sexual

abuse. Thurman stated that M.M. had a normal physical exam but explained that the

absence of physical findings does not mean that a patient was not abused. She explained

that "95 percent of kids that we see and that what research has shown is they have normal

exams, even after disclosing sexual contact." This is because sexual contact can occur but

not cause an injury, or if there is an injury, those injuries can heal quickly and completely.

As a result, Thurman testified that M.M.'s "normal physical exam [was] consistent with her

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disclosure for sexual abuse. It doesn't confirm or rule it out, but it is consistent with it."

{¶ 64} Following review, we find Fannin's argument is without merit. Thurman never

vouched for the credibility of M.M. or otherwise improperly bolstered her testimony. Rather,

her testimony was relevant in explaining that the absence of physical findings does not

necessarily mean that a patient was not abused and that it was very common for sexually

abused children to have a normal exam. This is not improper bolstering or vouching. As a

result, we find the trial court did not err in admitting this testimony. Fannin's sixth

assignment of error is overruled.

{¶ 65} Assignment of Error No. 7:

{¶ 66} THE TRIAL COURT DENIED MR. FANNIN'S DUE PROCESS AND RIGHT

TO A FAIR TRIAL WHEN IT DID NOT ACT IN ACCORDANCE WITH CRIM. R. 24(J).

{¶ 67} In his seventh assignment of error, Fannin alleges the trial court erred by not

acting in accordance with Crim.R. 24(J). Fannin's argument is based upon the trial court's

decision to allow jurors to submit written questions to witnesses following direct and cross-

examination without a prior instruction, in accordance with Crim.R. 24(J)(3), that the jurors

shall not display or discuss a proposed question with other jurors.

{¶ 68} Fannin acknowledges he failed to object to the trial court's instruction and,

therefore, waived all but plain error. State v. Evick, 12th Dist. Clermont No. CA2018-03-

016, 2019-Ohio-2791, ¶ 24. To constitute plain error there must be a deviation from a legal

rule. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Second, the error must be fundamental,

palpable, and obvious on the record such that it should have been apparent to the court

without an objection. State v. Barnette, 12th Dist Butler No. CA2012-05-099, 2013-Ohio-

990, ¶ 30. Third, the error must have affected appellant's substantial rights, i.e., the error

affected the outcome of the trial. Barnes at 27. An appellate court will take notice of plain

error with "utmost caution, under exceptional circumstances, and only to prevent a manifest

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miscarriage of justice." State v. Baldev, 12th Dist. Butler No. CA2004-05-106, 2005-Ohio-

2369, ¶ 12.

{¶ 69} Crim. R. 24 (J) provides in pertinent part:

The court may permit jurors to propose questions for the court
to ask of the witnesses. If the court permits jurors to propose
questions, the court shall use procedures that minimize the risk
of prejudice, including all of the following:

***

(3) Instruct the jurors that they shall not display or discuss a
proposed question with other jurors;

***

{¶ 70} We find the trial court did not commit plain errorj by failing to instruct the jury

in accordance with Crim. R. 24(J)(3). There is nothing in the record to suggest that any

juror displayed or discussed their questions with any other juror. Fannin does not dispute

this, nor does he argue how, but for the trial court's failure to give the instruction, the

outcome of his trial would have been different. See, e.g., State v. Fite, 9th Dist. Summit

No. 25318, 2011-Ohio-2500, ¶ 37 (appellant failed to show violation of Crim. R. 24, nor has

he argued how the outcome of the trial would have been different). Considering the

evidence in support of Fannin's guilt, we do not believe any such omission affected the

outcome of the trial. Fannin's seventh assignment of error is overruled.

{¶ 71} Assignment of Error No. 8:

{¶ 72} APPELLANT'S CONVICTIONS, IN THE ABSENCE OF THE STATE'S

PRESENTATION OF EVIDENCE PROVING VENUE BEYOND A REASONABLE DOUBT,

CONSTITUTE PLAIN ERROR.

{¶ 73} Fannin's eighth assignment of error alleges the state failed to prove venue

beyond a reasonable doubt. "Venue commonly refers to the appropriate place of trial for a

criminal prosecution within a state." State v. Meridy, 12th Dist. Clermont. No. CA2003-11-

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091, 2005-Ohio-241, ¶ 12. The importance of venue is to give the defendant the right to be

tried in the vicinity of his alleged criminal activity. State v. Workman, 12th Dist. Clermont

Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 58. The standard to

establish venue is whether appellant has a "significant nexus" with the county where the

trial was held. Meridy at ¶ 22; State v. Stone, 12th Dist. Warren No. CA2007-11-132, 2008-

Ohio-5671, ¶ 16. As a result, and pursuant to R.C. 2901.12, Ohio's venue statute, "[t]he

trial of a criminal case in this state shall be held in a court having jurisdiction of the subject

matter, and * * * in the territory of which the offense or any element of the offense was

committed." R.C. 2901.12(A).

{¶ 74} A review of the record reveals that the state presented clear and unrefuted

testimony to demonstrate that venue was proper in Warren County. The evidence

established that Fannin committed his offenses at a residence on Utica Road in Clearcreek

Township, Warren County, Ohio. During her testimony, M.M. identified photographs of the

house on Utica Road where she lived with Fannin, C.F., and her brother. She described

the sexual acts that occurred in that residence. M.M.'s mother confirmed the location of the

residence and the timeline of their living quarters over the years. Detective Barton

confirmed the location of the residence as being in Warren County. Contrary to Fannin's

arguments, the record clearly establishes that the state established venue. Accordingly,

Fannin's eighth assignment of error is overruled.

{¶ 75} Assignment of Error No. 9:

{¶ 76} IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO LAW

WHEN THE FINDINGS MADE IN SUPPORT OF THE IMPOSITION OF THE

CONSECUTIVE SENTENCES ARE NOT SUPPORTED BY THE RECORD.

{¶ 77} In his ninth assignment of error, Fannin alleges the trial court erred by

imposing consecutive sentences. We disagree.

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{¶ 78} This court reviews felony sentences pursuant to the standard of review set

forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is

clearly and convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-

224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate

a sentence only if, by clear and convincing evidence, "the record does not support the trial

court's findings under relevant statutes or that the sentence is otherwise contrary to law."

State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence

is not clearly and convincingly contrary to law where the trial court considers the purposes

and principles of sentencing as set forth in R.C. 2929.11, as well as the seriousness and

recidivism factors listed in R.C. 2929.12, and sentences a defendant within the permissible

statutory range. State v. Brandenburg, 12th Dist. Butler Nos. CA2014-10-201 and CA2014-

10-202, 2016-Ohio-4918, ¶ 9.

{¶ 79} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Dillon,

12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find

that the consecutive sentence is necessary to protect the public from future crime or to

punish the offender. Id. Second, the trial court must find that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public. Id. Third, the trial court must find that one of the following

applies:

(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.

(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or

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unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 80} "A trial court satisfies the statutory requirement of making the required findings

when the record reflects that the court engaged in the required analysis and selected the

appropriate statutory criteria." State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and

CA2013-06-050, 2014-Ohio-2340, ¶ 113. In imposing consecutive sentences, the trial court

is not required to provide a word-for-word recitation of the language of the statute or

articulate reasons supporting its findings. Id. Nevertheless, the record must reflect that the

trial court engaged in the required sentencing analysis and made the requisite findings. Id.

The court's findings must thereafter be incorporated into its sentencing entry. State v.

Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 10.

{¶ 81} The record reflects that the trial court made the findings required by R.C.

2929.14(C)(4) when it ordered Fannin's sentences be served consecutively. The trial court

noted the seriousness of the charges. Fannin took advantage of M.M. through his

relationship with her mother. The record reflects that over a period of approximately 18

months, Fannin abused M.M. on multiple occasions and allowed her to believe that she was

the instigator of this abuse. The trial court found that Fannin's conduct was more serious

than that normally constituting the offenses of rape and that consecutive sentences were

necessary to protect the public from future crimes.

{¶ 82} The trial court later memorialized these findings within its sentencing entry.

From the trial court's statements at the sentencing hearing and the language used in the

sentencing entry, it is clear that the trial court complied with the dictates of R.C.

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 Warren CA2020-03-022

2929.14(C)(4). See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37; State v.

Sess, 12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560, ¶ 35-38. It is also clear that

the record supports the trial court's findings that the harm caused by Fannin's offenses was

so great or unusual that no single prison term adequately reflected the seriousness of his

conduct and that consecutive sentences were necessary to punish Fannin and protect the

public.

{¶ 83} Fannin argues the trial court did not consider his "work history, likelihood to

reoffend, outside support, or other pertinent factors." However, as noted above, the court

was not required to articulate its reasons provided the record reflects that the court engaged

in the required sentencing analysis. State v. Moore, 12th Dist. Clermont No. CA2014-02-

016, 2014-Ohio-5191, ¶ 12. Moreover, the record rebuts Fannin's assertions he makes on

appeal. During the sentencing hearing, Fannin's counsel urged the court to impose a

minimum sentence based on Fannin's age, his prior record, his employment, and his work

ethic. After receiving statements from the prosecutor, C.F., defense counsel, and Fannin,

the trial court specifically stated that it had considered the statements made in open court,

"a number of letters from friends and family members" of Fannin, as well as the purposes

and principles of sentencing, and the seriousness and recidivism factors. The record

reflects that the trial court engaged in the required analysis and imposed an appropriate

sentence. Fannin's sentence is not contrary to law. Fannin's ninth assignment of error is

overruled.

{¶ 84} Assignment of Error No. 2:

{¶ 85} THE CUMULATIVE EFFECT OF DEFENSE COUNSEL'S ERRORS

VIOLATED MR. FANNIN'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS

GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE CONSTITUTION

OF THE STATE OF OHIO.

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{¶ 86} In his second assignment of error, Fannin alleges that his trial counsel was

ineffective. We find no merit to Fannin's argument.

{¶ 87} To establish a claim of ineffective assistance of counsel, the appellant must

show that counsel's actions were outside the wide range of professionally competent

assistance and that he was prejudiced as a result of counsel's actions. State v. Patrick,

12th Dist. Butler No. CA2015-05-090, 2016-Ohio-995, ¶ 13, citing Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052 (1984).

{¶ 88} Fannin complains that his counsel was ineffective for failing to call an expert

witness to contradict the state's expert witness. In so doing, he does not explain what an

expert would have said, much less how it would have been helpful in his defense.

Notwithstanding, it is well established that a decision regarding whether to call witnesses

falls within the ambit of trial strategy. State v. B.J.T., 12th Dist. Warren No. CA2018-06-

062, 2019-Ohio-1049, ¶ 17. This is especially true here when considering there is no

indication that trial counsel's failure to call an expert witness was the result of incompetence

or negligence as opposed to sound trial strategy. See, e.g., State v. Wells, 12th Dist.

Warren No. CA2005-04-050, 2006-Ohio-874, ¶ 14 (speculation is insufficient to find error

on behalf of trial counsel). This court has held that even "a debatable decision concerning

trial strategy cannot form the basis of a finding of ineffective assistance of counsel." State

v. Smith, 12th Dist. Fayette No. CA2006-08-030, 2009-Ohio-197, ¶ 49. As a result, Fannin's

claim that he received ineffective assistance of counsel when his attorney failed to call an

expert witness to contradict the state's expert lacks merit.

{¶ 89} Next, Fannin claims that his counsel should have objected to the testimony of

Dina Thurman, the pediatric nurse practitioner. However, as detailed in the resolution of

Fannin's sixth assignment of error, Thurman's testimony was admissible and not improper.

Contrary to Fannin's argument otherwise, counsel was not deficient in this regard as any

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motion would have been meritless. State v. Kremer, 12th Dist. Warren Nos. CA2017-07-

115 and CA2017-07-116, 2018-Ohio-3339, ¶ 27; State v. Yarbrough, 104 Ohio St.3d 1,

2004-Ohio-6087, ¶ 117 (counsel is not deficient for failing to raise a meritless issue).

{¶ 90} Finally, Fannin argues that his counsel committed multiple errors, the

cumulative effect of which deprived him of effective representation. "Under the doctrine of

cumulative errors, a reviewing court 'will reverse a conviction when the cumulative effect of

errors deprives a defendant of a fair trial even though each of the instances of trial-court

error does not individually constitute cause for reversal.'" State v. Wilson, 12th Dist. Warren

No. CA2018-03-022, 2019-Ohio-338, ¶ 25, quoting State v. Kirkland, 140 Ohio St.3d 73,

2014-Ohio-1966, ¶ 140. Harmless or nonprejudicial errors cannot become prejudicial by

sheer weight of numbers alone. See State v. Hill, 75 Ohio St.3d 195, 212 (1996). In

addition, "[i]t is not enough simply to intone the phrase 'cumulative error.'" State v. Bethel,

110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 197. Without analysis or explanation as to why or

how the errors have had a prejudicial effect, an assignment of error claiming cumulative

errors has no substance. State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, ¶ 103.

{¶ 91} We decline to address the alleged "multiple errors" that Fannin's trial counsel

committed. Aside from the two issues detailed in this assignment of error, Fannin does not

specify what the alleged errors were or how they denied him a fair trial. It is not the duty of

an appellate court to search the record for evidence to support an appellant's argument as

to any alleged error. Wilson, 2019-Ohio-338 at ¶ 27.

{¶ 92} Upon thorough review of the record, we find Fannin was not deprived of

effective assistance of counsel. Fannin's sixth assignment of error is overruled.

{¶ 93} Judgment affirmed.

S. POWELL and BYRNE, JJ., concur.

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