author: KINDER, J.

text:
    COMMONWEALTH v. Matthew G. ALDEN, Jr.
    No. 16-P-309
    Appeals Court of Massachusetts, Middlesex..
    Argued March 8, 2018 Decided June 21, 2018
    Luke Rosseel, Boston, for the defendant.
    Erin D. Knight, Assistant District Attorney, for the Commonwealth.
    Present: Green, C.J., Kinder, & Henry, JJ.
   KINDER, J.

Following a jury trial in the District Court, the defendant, Matthew G. Alden, Jr., was convicted of intimidating a witness by sending her threatening text messages in violation of G. L. c. 268, § 13B. On appeal, the defendant claims (1) evidence regarding the text messages was improperly admitted, (2) the judge incorrectly instructed the jury regarding the Commonwealth's burden of proof, and (3) the evidence was not sufficient to prove the defendant's guilt beyond a reasonable doubt. We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). The victim in the case, E.B., was the defendant's former girl friend. At the time of trial, she had known the defendant for at least five years. In January, 2015, there was a criminal case pending against the defendant, in which E.B. was a potential witness. On January 19, 2015, E.B. reported to the police that she was receiving threatening text messages from someone she believed to be the defendant. The messages were received from the telephone number E.B. had used to communicate with the defendant by text messages and telephone calls every few days for over one year.

The messages threatened that, if E.B. "went to court[, she would] be sorry[,] and that [the defendant] would have people come after [her] if [she] went to court." More specifically, "[o]ne of [the messages] told [E.B.] to keep her hoe ass mouth shut.

[Another] implied that she should kill herself and she should do it tonight." An additional text message stated that E.B. should "leave their personal stuff out of the courtroom and that if she opened her mouth it'd be the worst thing she tried to do-... or the biggest mistake she ever made." E.B. believed the text messages referred to her role as a witness in the criminal case then pending against the defendant.

The defendant testified that at the time the threatening messages were received by E.B., he and his new girl friend had been living with his aunt for "[a] couple of months." The defendant and his mother testified that the cellular telephone (cell phone) associated with the number from which the threatening messages were received was not owned by the defendant. According to the defendant, his aunt had purchased the cell phone, but it was shared with the defendant and at least six other people who lived at his aunt's residence. The cell phone was not password protected and remained at the aunt's house for use by its residents. The defendant denied sending the threatening text messages to E.B. He testified that, at the time the text messages were sent, he was at the mall and did not have the cell phone with him. Finally, the defendant testified that his new girl friend did not like E.B.

Discussion. 1. Evidentiary issues. a. Authentication of text messages. "[B]efore admitting an electronic communication in evidence, a judge must determine whether sufficient evidence exists 'for a reasonable jury to find by a preponderance of the evidence that the defendant authored' the communication." Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366, 16 N.E.3d 502 (2014), quoting from Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011). "[I]rrespective of whether the communication is introduced through testimony or a physical item of evidence," proponents seeking to introduce such electronic communications into evidence must first establish authenticity. Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 587, 78 N.E.3d 116 (2017).

Here, the defendant filed a motion in limine to preclude evidence of the text messages because they were not "properly authenticated"-that is, because the evidence was not sufficient to authenticate them as having been authored by him. The judge deferred ruling until trial, but ultimately concluded that the Commonwealth had established by a preponderance of the evidence that the text messages were authentic. We discern no error in that decision.

"A judge making a determination concerning the authenticity of a communication sought to be introduced in evidence may look to 'confirming circumstances' that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be." Purdy, supra at 448-449, 945 N.E.2d 372, citing Commonwealth v. Hartford, 346 Mass. 482, 488, 194 N.E.2d 401 (1963). Here, there was evidence that, for over one year, E.B. had contacted the defendant multiple times each week using the telephone number from which the threatening messages originated. When she called that number, the defendant answered. When she sent a text message to that number to arrange a meeting with the defendant, he appeared. From this pattern of conduct, the judge could reasonably infer a direct connection between the defendant and the telephone number from which the threatening messages were sent. See Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 672, 941 N.E.2d 1143 (2011) ("Fatal to the defendant were the actions he took in conformity with the information contained in [the messages]").

The content of the text messages reinforced their link to the defendant. It is undisputed that at the time she received the text messages, E.B. was a witness in a pending case against the defendant. In this context, where there was evidence that the text messages directed her to "keep her hoe ass mouth shut" and "leave their personal stuff out of the courtroom" or "people [would] come after [her] if [she] went to court," it was reasonable to infer that the defendant was responsible for sending the messages.

The defendant's reliance on Commonwealth v. Williams, 456 Mass. 857, 926 N.E.2d 1162 (2010), and Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 996 N.E.2d 488 (2013), is misplaced. In those cases, electronic communications sent on the social networking Web site MySpace were not properly authenticated. In Salyer, the Commonwealth failed to introduce admissible evidence establishing any connection between the offending pages and message on MySpace and the defendant. Salyer, supra at 355-356, 996 N.E.2d 488. In Williams, where the messages were alleged to have been sent by the defendant's brother, the Supreme Judicial Court emphasized that there was no evidence regarding any limitation on access to a MySpace account, and no circumstances beyond the messages' content that linked them to the defendant's brother. Williams, supra at 868-869, 926 N.E.2d 1162. The Supreme Judicial Court explained that "[a]nalogizing a My[S]pace Web page to a telephone call, a witness's testimony that he or she has received an incoming call from a person claiming to be 'A,' without more, is insufficient evidence to admit the call as a conversation with 'A.' " Id. at 869, 926 N.E.2d 1162. Here, by contrast, there was more. In addition to the content of the text messages, E.B.'s prior relationship with the defendant and her use of the telephone number to communicate with him over a significant period of time provided the necessary link. Simply put, these confirming circumstances sufficiently connected the defendant to the threats. See Purdy, 459 Mass. at 450-451, 945 N.E.2d 372.

b. Best evidence rule. The defendant claims that the best evidence rule precluded testimony regarding the content of the text messages. Because the defendant never raised this argument at trial, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Leary, 92 Mass. App. Ct. 332, 336, 85 N.E.3d 989 (2017). "The best evidence rule provides that, where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction." Commonwealth v. Ocasio, 434 Mass. 1, 6, 746 N.E.2d 469 (2001). There is an exception, however, regarding statements of parties. "The proponent may prove the content of a written statement of the party against whom the evidence is offered without producing or accounting for the original." Mass. G. Evid. § 1007 (2018). Here, once the judge made a preliminary determination that the evidence was sufficient to authenticate that the text messages were sent by the defendant, this exception applied. Accordingly, the best evidence rule did not. There was no error, much less a substantial risk that justice miscarried.

c. Cross-examination of the defendant. At the close of cross-examination of the defendant, the prosecutor posed to the defendant a series of ten questions, each asking whether the defendant had sent a particular text message. Each question incorporated the exact language of the text message. In each instance, the defendant denied sending the text message. On appeal, the defendant claims that this line of cross-examination improperly relied on facts not in evidence. We are not persuaded.

Generally, "[a] prosecutor may not conduct cross-examination 'in bad faith or without foundation.' " Commonwealth v. Christian, 430 Mass. 552, 561, 722 N.E.2d 416 (2000), quoting from Commonwealth v. White, 367 Mass. 280, 285, 325 N.E.2d 575 (1975). Here, although some of the questions included text messages not previously described by E.B., the Commonwealth had a "reasonable belief that the facts implied by the questions could be established by admissible evidence." Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39, 12 N.E.3d 1020 (2014). The jury had already heard the general nature of the threatening text messages through the testimony of E.B. and a police witness. Moreover, "screen shot[s]" of the text messages had been preserved and made available to the defendant. Although the screen shots themselves were never offered in evidence, the prosecutor was aware, prior to the defendant's testimony, that the judge had found "by a preponderance of the evidence that those text messages are authentic, even though they weren't presented in the form of photographs or business records." Therefore, the prosecutor had a good faith belief that the threats implied by the questions could be established by admissible evidence. Accordingly, the judge did not abuse his discretion in allowing the cross-examination. See Commonwealth v. Durand, 475 Mass. 657, 662, 59 N.E.3d 1152 (2016).

2. Instruction. In addition to the general instruction that the Commonwealth had the burden of proving each element of the offense beyond a reasonable doubt, the judge gave a supplemental instruction that, before they could consider the content of the text messages, the jury must be satisfied by a preponderance of the evidence that the messages had been sent by the defendant. The defendant claims that the supplemental instruction was reversible error because it confused the jury regarding the Commonwealth's burden of proof. We disagree.

"We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party." Beverly v. Bass River Golf Mgmt., 92 Mass. App. Ct. 595, 603, 93 N.E.3d 852 (2018) (quotation omitted). Because the Commonwealth sought to introduce evidence of the contents of text messages, an instruction on a preliminary determination of authorship was appropriate, and the instruction given was an accurate statement of the law. See Purdy, 459 Mass. at 447-450, 945 N.E.2d 372 ; Oppenheim, 86 Mass. App. Ct. at 363-369, 16 N.E.3d 502. The judge also properly instructed the jury on the elements of the crime, including that the Commonwealth had the burden to prove beyond a reasonable doubt that it was the defendant who directly or indirectly threatened the victim. Three times the judge emphasized that the Commonwealth's burden was to prove each element of the crime beyond a reasonable doubt.

"Trial judges have 'considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.' " Commonwealth v. Kelly, 470 Mass. 682, 688, 25 N.E.3d 288 (2015) (quotation omitted). We acknowledge that in this case there was a fine line between the (1) preliminary determination of the authenticity of the text messages and (2) proof of the defendant's identity as the perpetrator of the threats. Nevertheless, authenticity and identity are different legal concepts, and the judge did not err in explaining the distinction. While, in the context of this case, it would have been preferable to instruct the jury more directly that authorship of the threatening text messages was an element of the offense that had to be proved beyond a reasonable doubt, the judge acted within his discretion in framing the instructions as he did. Moreover, the judge gave a curative instruction after the defendant objected. Considering these instructions as a whole, see Commonwealth v. Allen, 474 Mass. 162, 168, 48 N.E.3d 427 (2016), we are confident that the defendant's substantive rights were not adversely affected by the supplemental jury instruction.

3. Sufficiency. "Where, as here, a defendant moves for required findings at the close of the Commonwealth's case and at the close of all the evidence, '[w]e [first] consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time,' " Commonwealth v. Morgan, 449 Mass. 343, 349, 868 N.E.2d 99 (2007), quoting from Commonwealth v. Sheline, 391 Mass. 279, 283, 461 N.E.2d 1197 (1984), that is, "whether the Commonwealth [had] presented sufficient evidence of the defendant's guilt to submit the case to the jury," Commonwealth v. Dustin, 476 Mass. 1003, 1003, 63 N.E.3d 375 (2016) (quotation omitted). The evidence is sufficient if, "viewing the evidence in a light most favorable to the Commonwealth, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis original)." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120, 921 N.E.2d 906 (2010), quoting from Latimore, 378 Mass. at 677, 393 N.E.2d 370.

To establish a violation of G. L. c. 268, § 13B, "the Commonwealth was required to prove that the defendant wilfully engaged in intimidating conduct, that is, acts or words that would instill fear in a reasonable person, and did so with the intent to impede or influence a potential witness's testimony" against the defendant. Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535, 923 N.E.2d 1086 (2010). The defendant does not dispute the threatening nature of the messages or that they were intended to impede or influence E.B., a potential witness in a criminal case pending against him. As to the sufficiency of the evidence, the defendant's only claim is that no rational juror could have found beyond a reasonable doubt that he authored the text messages. We disagree.

We have previously discussed the circumstantial evidence linking the defendant to the threatening messages. First, the jury heard that there had been a long-standing pattern of communication between the defendant and E.B. using the telephone number from which the threats originated. Second, the jury could rationally conclude that the threats to "leave their personal stuff out of the courtroom" or "people [would] come after [her] if [she] went to court" were intended by the defendant to intimidate E.B., so that she would not testify in the case then pending against him. Viewed in the light most favorable to the prosecution, this evidence was sufficient to prove the defendant's identity beyond a reasonable doubt.

"We also consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case." Sheline, supra. However, "[d]eterioration does not occur merely because the defendant contradicted the Commonwealth's evidence ... 'unless the contrary evidence is so overwhelming that no rational jury could conclude that the defendant was guilty.' " Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381, 85 N.E.3d 1005 (2017) (citation omitted). We do not view the uncorroborated testimony of the defendant and his mother as overwhelming contrary evidence. "As the jury were free to disbelieve the defendant's account, there was nothing compelling in this evidence which caused the prosecution's case to deteriorate."

Commonwealth v. Walker, 401 Mass. 338, 343-344, 516 N.E.2d 1143 (1987). Accordingly, we discern no error in the judge's denial of either of the defendant's motions for a required finding of not guilty.

Judgment affirmed.

      The defendant testified that his aunt, her husband, his two cousins, and their girl friends also lived at the residence.

      For example, the prosecutor asked, "[D]o you deny saying, 'I hope you kill yourself, bye-bye?' "

      The defendant's remaining claims regarding the prosecutor's examination of witnesses "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78, 123 N.E.2d 368 (1954).

      The judge instructed the jurors on this point as follows:
      "Before you can consider the content of those alleged text messages you must first be persuaded that the person on the other side of the conversation was, in fact, the defendant. The prosecution has to prove what is called by a preponderance of the evidence. It's a different standard, lower than the beyond a reasonable doubt standard. Preponderance of the evidence mean[s] that the evidence must convince you that it is more likely true than not that the person on the other end of the conversation was, in fact, the defendant. If you are not convinced that it is more likely true than not that the other person on the alleged conversation was, in fact, the defendant then you may not consider that conversation, in this case text messages as alleged, you may not consider that conversation at all against the defendant."

      The judge instructed: "In order to prove the defendant guilty ... the Commonwealth must prove three ... elements beyond a reasonable doubt .... First, that the defendant either directly or indirectly made a threat" (emphasis supplied).

      "Just so ... I'm not confusing you, the preliminary issue as to the admissibility of the text messages, the standard is preponderance of the evidence. So you have to first determine by a preponderance of the evidence, was the defendant the person on the other side of the conversation. Only then can you [consider] them in determining whether or not the government has proven the elements of the offense beyond a reasonable doubt."


source: Caselaw Access Project

author: WENDLANDT, J.

license: Public Domain

text:
    FRANCHI MANAGEMENT COMPANY, INC., & others v. Paul F. FLAHERTY, Jr., trustee, & another; Pasquale Franchi, trustee, & others, third-party defendants.
    No. 17-P-275
    Appeals Court of Massachusetts, Middlesex..
    Argued January 11, 2018 Decided June 21, 2018
    Christopher J. Marino (Kenneth J. Mickiewicz also present) for Paul F. Flaherty, Jr.
    John J. Gushue for Franchi Management Company, Inc., & others.
    Present: Rubin, Sacks, & Wendlandt, JJ.

      Michael P. Franchi, Louis Franchi, Linda A. Kacewicz, KCN Realty Trust, and Sea Breeze Realty Trust.

      Of the Patricia Franchi Flaherty 1999 Revocable Trust. Flaherty was also sued in his individual capacity.

      John S. Kacewicz. Kacewicz was sued in his then capacity as trustee of the Patricia Franchi Flaherty 1999 Revocable Trust. We are informed by the parties that he is no longer a trustee, and that a successor trustee has not been named.

      Of Haverhill Realty Development Trust and of Westcliff Road Nominee Trust.

      Meadow Green-Wildcat Ski Lift Corp., Meadow Green-Wildcat Corp., LMF Franklin Corp., Natick Crossing Corp., and Commonwealth Babcock Associates, LLP.

   WENDLANDT, J.

In this case, we address the timeliness of a notice of appeal from a final judgment that was corrected twice: first, sua sponte to fix a clerical error in the calculation of prejudgment interest, and second, on a motion pursuant to Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct an additional error in that same calculation. Because neither the sua sponte correction of a clerical error nor the filing (as here) of a rule 60(a) motion beyond ten days from entry of the original judgment has the effect of restarting the time for appeal from that judgment under Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013), we dismiss defendant Paul F. Flaherty, Jr.'s appeal from the original judgment as untimely.

Background. We briefly set forth the undisputed facts as agreed by the parties in their cross motions for summary judgment, leaving some procedural details for our discussion below. This dispute stems from the failure of the defendants, as trustees of the Patricia Franchi Flaherty 1999 Revocable Trust (trust), to pay plaintiff Michael Franchi (Michael) on a promissory note (note) pursuant to which Michael loaned $750,000 to his sister Patricia Franchi Flaherty (Patricia). Under the terms of the note, Michael and Patricia agreed that Michael's sole recourse for payment would be from Patricia's ownership and beneficial interests in certain assets, which she had previously transferred to the trust. Patricia died before the initial payment became due, and the trust did not make payments to Michael. The present action, which Michael and the other plaintiffs commenced in Superior Court, followed.

After a period of discovery, Michael moved for partial summary judgment on count 2 of the second amended complaint, asserting that the court should reach and apply trust assets to satisfy a $750,000 debt owed to him by Patricia. In their opposition, the defendants conceded liability under the note; they disputed only the amount due to Michael and whether Michael had complied with the notice provisions. The motion judge allowed Michael's motion and ordered the trust to pay the principal balance of the note together with interest, remarking that the defendants did not appear to dispute that Michael's claim was a direct contractual claim against the trust (as opposed to a claim against Patricia's estate). Pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), Michael moved for entry of final judgment on his claim. The unopposed motion was allowed. The clerk of the Superior Court entered a final judgment on Michael's claim on December 22, 2014 (original judgment). Defendant Paul F. Flaherty, Jr., now appeals.

Discussion. Rule 4(a) of the Massachusetts Rules of Appellate Procedure requires an appellant in a civil case to file a notice of appeal "within thirty days of the date of the entry of the judgment appealed from." Mass.R.A.P. 4(a), first par. Here, the defendant purports to appeal from the original judgment, which entered as a final judgment on December 22, 2014. Specifically, on January 11, 2017-more than 750 days after the original judgment entered, and nearly two years after the thirty-day deadline for appeal from the original judgment had lapsed on January 21, 2015-the defendant filed a notice of appeal from the original judgment. Accordingly, unless an exception applies, the defendant's appeal is not timely.

Rule 4(a) provides that certain postjudgment motions will alter the time period for the filing of a notice of appeal, such that the thirty-day period will not commence until the entry of the order disposing of the postjudgment motion. Relevant to the present case, rule 4(a) was amended in 2013 to provide as follows:

"If a timely motion under the Massachusetts Rules of Civil Procedure is filed in the lower court by any party ... to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, if either motion is served within ten days after entry of judgment ... the time for appeal for all parties shall run from the entry of the order ... granting or denying any ... such motion" (emphasis added).

Mass.R.A.P. 4(a), second par. A notice of appeal filed before the disposition of these postjudgment motions "shall have no effect"; "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the [postjudgment] motion." Ibid.

1. Sua sponte correction of clerical error. The defendant first maintains that the time for appeal was restarted when, on December 30, 2014, the court sua sponte corrected an arithmetic error in the original judgment regarding the amount of interest owed to Michael. The trial court has the power to correct clerical mistakes (such as arithmetic errors ) pursuant to Mass.R.Civ.P. 60(a), which provides:

"Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court."

The trial court's exercise of this power does not restart the appellate clock. Rule 4(a) of the Rules of Appellate Procedure, second par., provides only that certain postjudgment motions restart the time to appeal; nothing in rule 4(a) suggests that the time for appeal is restarted based on the sua sponte action by the trial court. To the contrary, it is well settled that where (as here) the trial court uses its inherent power to correct a clerical mistake such that the amended judgment does not alter the substantive rights affected by the original judgment, the time for appeal generally runs from the original judgment. See Jones v. Boykan, 74 Mass. App. Ct. 213, 217 n.7, 905 N.E.2d 132 (2009) ("[T]he correction of a clerical error does not extend the time for taking an appeal from a final judgment"); Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir. 1996) (per curiam), citing Federal Trade Commn. v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952) ("Where a judgment is reentered [based on a sua sponte correction of an administrative mistake by the trial court], and the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment"). Accordingly, the sua sponte amendment of the original judgment did not alter the time to file the notice of appeal from the original judgment.

2. Rule 60(a) motion to correct a clerical error. The defendant next argues that the time for appeal was restarted when Michael served on the defendants a motion pursuant to Mass.R.Civ.P. 60(a) to correct an additional clerical error in the amended judgment. Specifically, on January 5, 2015-less than ten days after entry of the amended judgment, but more than ten days after entry of the original judgment-Michael served a rule 60(a) motion to correct another clerical error in the calculation of prejudgment interest in the amended judgment. The defendant maintains that this motion, pursuant to rule 60(a), is one of the enumerated postjudgment motions that restart the time to file the notice of appeal. In particular, the defendant contends that it was a motion "to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, if either motion is served within ten days after entry of judgment" (emphasis added). Mass.R.A.P. 4(a), second par. The defendant's argument overlooks that the rule 60(a) motion was not "served within ten days after entry" of the original judgment from which the defendant purports to appeal. For this reason alone, the argument fails.

Nevertheless, the defendant maintains that the time for appeal was extended because Michael's rule 60(a) motion was served within ten days of the entry of the amended judgment. The flaw in the defendant's contention is that the defendant does not appeal from the clerical correction reflected in the amended judgment. Instead, he purports to challenge the merits of the allowance of Michael's motion for summary judgment in the original judgment; the defendant's notice of appeal from that judgment was not filed until more than 750 days after the judgment entered. Michael's rule 60(a) motion (which was not served within ten days of the entry of the original judgment) does not "produce a Lazarus-like effect; it cannot resurrect [the defendant's] expired right to contest the merits of the underlying [original] judgment, nor bring the judgment itself before us for review." Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989). See 11 Wright, Miller, & Kane, Federal Practice & Procedure § 2871, at 586 (3d ed. 2012) (timely appeal from correction of clerical error, after time for appeal of underlying judgment has run, "would be limited to [the] disposition of the Rule 60 [a] motion and would not bring up for review the underlying judgment").

Because the trial court's sua sponte correction in the amended judgment does not alter the finality of the original judgment or restart the time for appeal, and because Michael's rule 60(a) motion was not served within ten days of the original judgment, the defendant's appeal from the original judgment is untimely.

Conclusion. The appeal from the December 22, 2014, judgment, and from so much of the amended judgment entered December 28, 2016, as awarded damages in the sum of $750,000 is dismissed with prejudice. In all other respects, the amended judgment is affirmed.

So ordered.

      Only Paul F. Flaherty, Jr., in his capacity as trustee, filed an appeal.

      Because these parties share a surname, we will refer to each by first name.

      Counts 1 through 4 of the plaintiffs' second amended complaint sought to reach and apply assets of the defendants to satisfy debts owed to the plaintiffs; count 2 concerned only the debt owed to Michael. The complaint also included a claim requesting the imposition of a constructive trust (count 5); claims alleging fraudulent conveyance (count 6) and breach of fiduciary duty (count 7); and a demand for an accounting (count 8).

      The plaintiffs filed a separate motion for summary judgment on counts 1, 3, 4, 5, and 7 of the second amended complaint, and the defendants filed a cross motion for summary judgment on all of the counts. The motion judge allowed the defendants' cross motion for summary judgment as to counts 5 through 8. The judge denied both the plaintiffs' and defendants' motions for summary judgment on counts 1, 3, and 4, concluding that Patricia's estate was a necessary party as to those counts. The judge ordered Patricia's estate to be joined and that said joinder "shall relate back to the date of filing of the original complaint." The plaintiffs then successfully moved to amend the complaint to include Patricia's estate as a defendant. Parallel litigation between the parties ensued in the Probate and Family Court, where a judge ruled that the plaintiffs' claims against the estate were time barred. The plaintiffs have appealed that decision to this court, and the appeal has been stayed pending resolution of the Superior Court litigation on the other counts of the complaint. A third litigation was then commenced by some of the plaintiffs, who filed a complaint in the Supreme Judicial Court pursuant to G. L. c. 190B, § 3-803(e ), seeking equitable relief to allow them to pursue their claim against Patricia's estate. A single justice of the Supreme Judicial Court transferred the action to the Superior Court for consideration together with the remaining claims of the present action.

      Despite this concession, in their cross motion for summary judgment, the defendants argued that Patricia's estate was a necessary party for all the "reach and apply" counts of the complaint, including Michael's claim on the note.

      Subsequently, the motion judge allowed, in part, Michael's motion for attorney's fees and costs.

      As set forth supra, while the original judgment did not dispose of all of the claims, it was a "final judgment" entered pursuant to Mass.R.Civ.P. 54(b), which the defendants did not oppose.

      Here, the correction of the interest calculation was a clerical error that did not affect the substantive rights determined in the original judgment. See Artco, Inc. v. DiFruscia, 5 Mass. App. Ct. 513, 515, 517, 365 N.E.2d 832 (1977) (rule 60 [a] motion to correct clerical error in computation of interest did not affect finality of earlier judgment or extend time to bring motion under rule 60 [b][2] or [3] ). See also Bernier v. Boston Edison Co., 380 Mass. 372, 388 n.17, 403 N.E.2d 391 (1980) (rule 60 [a] motion is proper vehicle for correcting error in computation of interest).

      Of course, a party would have thirty days from the entry of such an amended judgment to appeal from the revisions reflected in that judgment. See 11 Wright, Miller, & Kane, Federal Practice & Procedure § 2871 (3d ed. 2012).

      "As a general principle, we apply to our rules of civil procedure the construction given to the cognate Federal rules." Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 236, 475 N.E.2d 1201 (1985), quoting from Chavoor v. Lewis, 383 Mass. 801, 806 n.5, 422 N.E.2d 1353 (1981).

      The motion judge did not reach the merits of this January, 2015, rule 60(a) motion because the action was stayed in August, 2015, pending resolution of the Probate and Family Court matter. See note 9, supra. In September, 2016, Michael served and filed a renewed rule 60(a) motion to correct the clerical error. That renewed motion was served more than ten days after the amended judgment entered. For the present analysis, we assume arguendo that the renewed rule 60(a) motion should be viewed as relating back to January 5, 2015, the service date of Michael's original rule 60(a) motion. The renewed motion was allowed, and a second amended judgment entered on December 28, 2016. Because the defendant filed his notice of appeal on January 11, 2017, the notice was timely as to the further revisions in the second amended judgment. We note, however, that the defendant has not challenged any aspect of the further revisions, which we shall therefore affirm.

      Because we conclude that Michael's motion pursuant to Mass.R.Civ.P. 60(a) did not meet the ten-day time restriction of Mass.R.A.P. 4(a), we need not decide whether a rule 60(a) motion to correct a clerical error is, when served within ten days of the entry of judgment, one of the motions encompassed by rule 4(a)(3). Compare Catz v. Chalker, 566 F.3d 839, 841-842 (9th Cir. 2009), with Reporter's Notes to Rule 4 (2013), Massachusetts Rules of Court, Rules of Appellate Procedure, at 231 (Thomson Reuters 2018) (discussing purpose of 2013 amendment to eliminate disparate effect on time for appeal caused by differential treatment between motions pursuant to Mass.R.Civ.P. 59 and Mass.R.Civ.P. 60 [b] ).

      The defendant, seeking to preserve some avenue for appealing from the original judgment, alternatively contends that the present appeal is premature and should be dismissed without prejudice. This is so, he argues, because, in allowing the renewed rule 60(a) motion (see note 16, supra ) and issuing a second amended judgment, entered on December 28, 2016, a second motion judge corrected the arithmetic error in the calculation of prejudgment interest in the first amended judgment only through December 30, 2014, the date the first amended judgment entered, and did not enter a new separate and final judgment pursuant to Mass.R.Civ.P. 54(b). We disagree. The second motion judge's interest calculation conforms to rule 54(f)'s directive to compute the "[i]nterest accrued up to the date of entry of a judgment." Mass.R.Civ.P. 54(f), 382 Mass. 822 (1980). The amount of additional interest owed to Michael after the date of the entry of the first amended judgment is "interest from the date of entry of a judgment to the date of execution or order directing the payment of said judgment," ibid., which cannot be calculated "at this time," as the second motion judge noted, because it will depend on when the defendants pay Michael on the outstanding judgment.


author: RUBIN, J.

text:
    COMMONWEALTH v. Larry HART.
    No. 16-P-1153
    Appeals Court of Massachusetts, Suffolk..
    Argued November 7, 2017 Decided July 16, 2018
    Timothy St. Lawrence for the defendant.
    Houston Armstrong (Teresa K. Anderson, Assistant District Attorney, also present) for the Commonwealth.
    Present: Green, C.J., Rubin, & Sullivan, JJ.
   RUBIN, J.

In this direct appeal from his convictions of receiving a stolen motor vehicle, subsequent offense, G. L. c. 266, § 28(a ), and negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a ), the defendant raises two arguments; whether (1) the trial judge erred in denying his motion for a required finding of not guilty because the Commonwealth produced insufficient evidence of identification, and (2) the judge abused her discretion in denying a motion for mistrial due to juror bias.

1. Sufficiency. The easier question relates to the sufficiency of the evidence. The facts adduced at trial were as follows. On the evening of January 31, 2014, while unloading a dark Buick Enclave sport utility vehicle (SUV) for his employer, witness Shehab Ragab saw a strange man in the driver's seat of the vehicle. Ragab identified the man as dark-skinned, thin, and wearing a white jacket and a dark-colored winter hat. He never saw the man's face. Ragab unsuccessfully attempted to remove the man from the SUV. The man drove off. Ragab called the police at 7:04 P.M. and immediately began to canvass the neighborhood looking for the SUV. He saw the vehicle, attempted to stop it, and was knocked to the ground. The SUV sped away in the direction of a Stop & Shop grocery store. Ragab returned to his place of employment to give a statement to the police when he again saw the SUV. The police pursued it by foot and by car.

Shortly thereafter, witness Roger Marcon was walking in the neighborhood and saw and heard the SUV stop abruptly on the sidewalk on the Stockwell Street side of Frawley Street, near where he was walking. He continued to walk. Although he did not see anyone get out of the SUV, he looked back and saw the defendant, who is African-American, near the SUV carrying grocery bags from Stop & Shop. The lights were on and the driver's side door was open. The defendant was wearing a dark coat and a dark winter hat, and looked disheveled, frightened, and confused. Marcon saw nobody else near the SUV. When the police arrived, Marcon pointed them toward the defendant, who was then arrested.

At the scene, a detective conducted a show-up of the defendant with Ragab and Marcon. Ragab was unable to make a positive identification of the defendant, although he stated that the defendant's hat and skin color matched those of the man who stole the SUV. Marcon, however, did make a positive identification with 100 percent confidence. Defense counsel's theory was that the defendant, who lived in the neighborhood, was simply walking home from the Stop & Shop. However, the Commonwealth elicited testimony at trial that the intersection of Frawley Street and Stockwell Street was not on the defendant's most direct route home from Stop & Shop.

At trial, the Commonwealth introduced in evidence a video recording from the Stop & Shop parking lot. It showed that, at 7:00 P.M. , an SUV pulled into the parking lot, a person got out of the vehicle, a person then entered it approximately nine minutes later, and the SUV drove off.

Notwithstanding the equivocal identification by Ragab, the testimony of Marcon that, immediately upon hearing a vehicle screech to a halt on Frawley Street, he turned and saw the stolen vehicle with its lights on and door open and the defendant standing next to it holding bags of groceries and appearing disheveled, frightened, and confused, when combined with the facts that no other person was anywhere in the vicinity and that the location was not along the most direct walking route from the Stop & Shop to the defendant's house (in contravention of the defendant's claim that he was walking home from Stop & Shop), suffice to support the element of identification with respect to which the defendant claims there is insufficient evidence. To be sure, the record contains no explanation for the fact that the video recording purporting to show the stolen SUV entering the Stop & Shop parking lot was time stamped several minutes before the robbery occurred, rather than afterward. While such circumstances might call into question the relevance of the videotape, the adequacy of its authentication, or whether its probative value was outweighed by the risk of unfair prejudice from its introduction, there was no objection to its introduction, and the defendant does not claim it was error. Questions about the timing of the video recording, however, do not call into question the sufficiency of the evidence.

2. Juror bias. The defendant's other argument relates to comments made by a juror at the beginning of the third day of trial. When the court officer went to say hello to the jurors, none of whom was African-American in the juror room before the commencement of proceedings on that day, juror no. ten said, "Good morning, it's a good day for a hanging." Although the court officer stated that most jurors said, "I can't believe you said that," juror no. six claimed that he thought some jurors laughed.

The court officer informed the judge, who conferred with counsel. The judge and defense counsel agreed that, given the sorry history of lynchings of African-Americans in the United States, this comment by a juror who was not African-American had overtones of racial bias. The prosecutor did not concede that one could infer racial bias from juror no. ten's comment, but understood that this was a valid interpretation, and agreed that a voir dire of all the jurors was proper. The judge then interviewed juror no. ten and dismissed him. Subsequent to the voir dire of that juror, the judge apologized to the defendant and said, apparently reflecting her understanding of the racial overtones of the comment, "I really do believe that most jurors don't believe, or have the beliefs that this juror expressed."

She then conducted a voir dire of each juror, asking them, in substance, whether they heard juror no. ten's comments, how the other jurors reacted, whether juror no. ten's comment affected their ability to be fair and impartial, and whether they were satisfied that they could fairly and impartially decide the case. She also requested that the jurors not discuss the matter with each other. It was during this voir dire that juror no. six stated that he thought some of the other jurors laughed at juror no. ten's comment. The judge concluded that each juror could continue to serve. While defense counsel did not request that the judge conduct further or more detailed inquiry, and thanked the judge for the process she had undertaken, he nonetheless moved for a mistrial, which motion was denied. It is from that ruling and the resulting judgments that he appeals.

"[J]ustice must satisfy the appearance of justice." Commonwealth v. Patry, 48 Mass. App. Ct. 470, 475, 722 N.E.2d 979 (2000), quoting from Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960). Particularly in the context of this case, with a jury with no African-American members but with an African-American defendant, a comment like juror no. ten's is a very serious matter. Cf. Pena-Rodriguez v. Colorado, --- U.S. ----, 137 S.Ct. 855, 868-869, 197 L.Ed.2d 107 (2017) ("[R]acial bias [is] a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court's decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....All forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed-including, in some instances, after the verdict has been entered-is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right").

We do not, however, write on a blank slate with respect to the question before us. Our decision is controlled by the Supreme Judicial Court's decision in Commonwealth v. Tavares, 385 Mass. 140, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). There, deliberating jurors were exposed to a racially charged comment by one of their number, and the judge learned of it before the verdict was returned. The Supreme Judicial Court held that "the judge interrogat[ing] the jurors and conclud[ing] that they could fairly and impartially render a verdict," id. at 156, 430 N.E.2d 1198 -as the judge did here-sufficed to address the risk of the other jurors' exposure to what the court described as "extraneous prejudicial information." Id. at 154, 430 N.E.2d 1198. Thus, under Tavares, no further questioning, for example, including questions to each juror about whether he or she laughed at juror no. ten's comment, and why, nor application of any heightened burden, presumption, or per se rule, to ensure impartiality, was required in this case.

Defendants, the courts, and the community should be left with no doubt about whether jurors harbor racial prejudice. See Pena-Rodriguez, 137 S.Ct. at 869. The risk even of the appearance that racial prejudice might have infected the judicial process, notwithstanding the sensitive efforts of the experienced trial judge, requires strong medicine. Whether Tavares provides adequate guidance to trial judges seeking to assess the potential effects of racial prejudice expressed in the jury room in all circumstances is something that requires fresh, principled, and rigorous reexamination. Indeed, the Supreme Judicial Court has recently introduced a more rigorous procedure judges should follow when they are informed, after the verdict has been returned, of racially charged statements made by jurors. See Commonwealth v. McCowen, 458 Mass. 461, 497, 939 N.E.2d 735 (2010) (when postverdict allegations are raised of racially charged statements by jurors, the defendant has the "burden of proving, by a preponderance of the evidence, that the jury were exposed to [such] statements"; if this burden is satisfied, then the Commonwealth must prove beyond a reasonable doubt that the jury's exposure to the statements was not prejudicial to the defendant). And other jurisdictions have recognized that Tavares-type procedures in the preverdict context will not always suffice to grant the defendant a fair trial. See, e.g., United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986) (after discovering that anti-Semitic "jokes" had been made and laughed at in the jury room, a mistrial was required, even though when the judge asked each juror during a subsequent voir dire whether they could be impartial, the jurors responded in the affirmative, because "anti-Semitic 'humor' is by its very nature an expression of prejudice on the part of the maker," and "[t]hose who made the anti-Semitic 'jokes' at trial and those who reacted to them with 'gales of laughter' displayed the sort of bigotry that clearly denied the defendant Heller the fair and impartial jury that the Constitution mandates"); People v. Jones, 105 Ill. 2d 342, 351, 352, 86 Ill.Dec. 453, 475 N.E.2d 832 (1985) (after a typewritten racist "joke" was found in the jury room during deliberations, the judge's voir dire, in which the jurors were questioned as to whether they had seen the material and, if so, whether it would affect their deliberations, was insufficient, and a mistrial was required, because, "[w]here black racist material is found in the jury room during the trial of an accused black man, and the material has admittedly been read by three members of an all-white jury, such circumstances are intolerable, and prejudice to defendant will be presumed"). Cf. State v. Johnson, 630 N.W.2d 79, 84 (S.D. 2001) (juror's statement during voir dire that "I got a rope," and the defendant was African-American, created a "presumption of prejudice" that the prosecution did not rebut, and a mistrial was required). Of course, whatever standard or procedure is employed, the myriad circumstances that may arise in the trial courts may render it difficult to articulate specific inquiries to be utilized in all cases. But in light of the length of time that has passed since Tavares and our keen awareness of the potential for racial bias to infect jury deliberations, we believe it would be appropriate for the Supreme Judicial Court to consider furnishing additional guidance to trial judges seeking to assess the potential for juror taint resulting from discriminatory statements made during deliberations.

Nonetheless, unless and until Tavares is modified by the Supreme Judicial Court, we are bound by it, and bound to apply it. In the present case, the judge dismissed the juror who made the racially insensitive remark and conducted an inquiry into the impartiality of the remaining jurors who heard it, concluding that they were not affected by it. Under current law as articulated in Tavares, that is what was required, and the scope of the judge's inquiry did not constitute an abuse of her discretion, nor consequently was denial of the motion for a mistrial beyond the scope of that discretion. The judgments therefore must be affirmed.

So ordered.

      The discrepancy between Ragab's testimony that the man who stole the SUV was wearing a light coat, and Marcon's testimony that the only man near the SUV-the defendant-was wearing a dark coat, was never explained. Nor was the fact that Mr. Ragab testified that the man was thin, but the defendant stated at booking that he weighed 220 pounds.

      The judge did not ask all jurors how the other jurors reacted.

      Of course, if a juror did laugh, it would not necessarily reflect racial prejudice; it could have been the result of nervousness or politeness, or some jurors might have been unaware of the history that, the judge found, imbued the "joke" with a racial gloss.

      Although we believe something like the McCowen standard would be appropriate when a judge learns of problematic statements before a verdict is returned, we do not interpret the Supreme Judicial Court as so holding. See McCowen, supra at 497, 939 N.E.2d 735 (juror statements reflecting actual bias, of which the judge learns postverdict, are evaluated under a two-step process applied to the jury's exposure to extraneous prejudicial information). See also Commonwealth v. Kamara, 422 Mass. 614, 615-617, 664 N.E.2d 825 (1996) (different procedures apply to preverdict and postverdict disclosures when the jury were exposed to extraneous prejudicial information).


author: CYNTHIA WESTCOTT RICE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Stephen ROSS, Defendant-Appellant.
    NO. 2016-P-0060
    Court of Appeals of Ohio, Eleventh District, Portage County.
    Decided February 5, 2018
    Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
    William A. Vasiliou, II, The Gothic Building, 54 East Mill Street, Akron, OH 44308-1736 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Stephen Ross, appeals his conviction in the Portage County Court of Common Pleas, following a jury trial, of rape and gross sexual imposition of his daughter, H.R., who, at the time, was less than ten years old. The principal issues are whether appellant's conviction was supported by sufficient evidence and whether his conviction was against the manifest weight of the evidence. For the reasons that follow, we affirm.

{¶ 2} As pertinent to this appeal, appellant was indicted for three counts of rape of a female under ten years old, felonies of the first degree, and three counts of gross sexual imposition of a female under 13 years old, felonies of the third degree. Appellant pled not guilty and the case proceeded to jury trial.

{¶ 3} H.R.'s mother, Amy Bianco ("Mother"), testified that she and appellant were married in 2004. They lived in a home in Streetsboro and had two children, H.R., who was born in 2005, and another daughter, who was born in 2007.

{¶ 4} H.R., who at the time of trial was 11 years old, testified that her first memory of being sexually abused by appellant was when she was three years old. She said that at that time her family was on vacation and staying in a hotel. When she was alone with appellant in the hotel room, he pulled down her underwear and touched her private parts. She described her private parts as the areas that are covered by a bathing suit, including the butt, vagina, and breasts.

{¶ 5} H.R. testified that between the time she was three and ten, appellant repeatedly engaged in this type of behavior. She said this would take place when the two of them were alone in a room, sometimes during the day and sometimes at night.

{¶ 6} H.R. said that appellant would kiss her and put his tongue in her mouth. He would pull her underwear down and touch her vagina with his fingers and mouth and would sometimes lick it. She said he would suck her breasts and rub his penis against her vagina. She said sometimes "white slippery stuff" came out of it that would go on her parents' bed or around her leg area.

{¶ 7} H.R. said that one time appellant made her lick his penis. She said he put his penis inside her mouth and when he tried to shove it in further, she made it end by turning her head away.

{¶ 8} H.R. said her father did these things to her five to ten times or more in their home. H.R. said her father would say this was their "little secret." She said it made her feel important because appellant gave her more attention and she felt he "treasured" her more than her sister.

{¶ 9} H.R. said she realized this was not appropriate behavior between a father and daughter when she was about six years old, but, she said, she did not tell anyone at that time because she did not want her father to stop loving her. When asked why she did not tell her doctors, she said, "I thought that it wasn't that bad. * * * I could always make an excuse up in my head about not doing it."

{¶ 10} H.R. said this conduct continued after her parents separated and her father moved into an apartment in 2013 (when she was eight years old) until she was ten years old at which time she finally told her mother.

{¶ 11} Mother testified that when H.R. was three, she started experiencing anxieties that were serious enough that they affected her sleep. At that time, she also started having temper tantrums, acting out aggressively toward her sister, and experiencing "meltdowns" for no apparent reason that caused her to scream, yell, and cry. When H.R. was four, she was urinating on towels and blankets and then hiding them. Mother reported this to H.R.'s therapist. H.R.'s pediatrician referred Mother to a child psychiatrist. H.R. was diagnosed with generalized anxiety disorder and she was prescribed medication. However, H.R.'s sleep problems, urinating issues, anxieties, and meltdowns continued.

{¶ 12} When H.R. was seven years old and in second grade, H.R.'s school reported to Mother that there was an allegation that H.R. had been "caressing" some of the other students' "butts" in a sexual way.

{¶ 13} Then, when H.R. was eight, a neighbor caught H.R. and his daughter dancing in their garage and H.R. had her underwear pulled down.

{¶ 14} Mother said that, beginning when H.R. was three, she and her husband took H.R. to see a series of therapists, psychologists, and psychiatrists, but her anxieties and behavioral issues only became worse.

{¶ 15} Appellant testified that in 2012, he began an affair with a woman from work, which he kept secret from his co-workers and Mother until she discovered it in 2013. In October of that year, appellant moved out of the marital residence to an apartment in Streetsboro. At that time Mother and appellant told H.R. and her younger sister that appellant would no longer be living with them. They told the girls that they would continue living in their home with Mother and that they would regularly visit with appellant. Mother said that H.R.'s sister cried hysterically, but H.R. showed no emotion.

{¶ 16} Appellant had weekly visitation with the girls in his apartment. At that time H.R. was eight and nine years old. She said that during these visits, her father engaged in the same kinds of sexual acts with her about five more times. She said, "[h]e rubbed his penis against my vagina. I remember him putting his penis in my mouth. I remember him sucking my breasts and I remember him kissing me all over."

{¶ 17} Mother testified that late one evening in June 2015, H.R. came to her bedroom crying, sweating, and with her face red, saying she needed to talk to her. After Mother was able to calm H.R. down, she said her father had been touching her on her private parts since she was three years old. H.R. said, "Please don't tell him. I don't want him to know I told you. Just make it stop." The next morning, Mother called H.R.'s counselor, Ms. Wiggins. She told Mother to bring H.R. in to see her and to report the abuse to the County Hotline, which she did. On June 18, 2015, Mother reported the abuse to the Streetsboro Police Department. On June 25, 2015, she took H.R. to the Children's Advocacy Center at Robinson Memorial Hospital to be interviewed. Streetsboro Police Detective Brian Shaffer met Mother at the Advocacy Center and observed H.R. being interviewed.

{¶ 18} Mother obtained a protective order from the domestic relations court on June 19, 2015. Appellant had supervised visitation with the children from that time until December 2015, when the court terminated visitation pending the criminal action.

{¶ 19} Mother said that since December 2015, H.R.'s behavior has significantly improved. Mother said H.R. has been "amazing." She plays, laughs, has friends, and is "a different kid." Mother said that, in the past, any random thing would cause H.R. to have a meltdown. Now, the only things that upset H.R. are things that would upset any normal 11-year old and the frequency of such events has greatly declined.

{¶ 20} When Mother was asked if, in hindsight, she ever thought something wrong was occurring, she said that one night she fell asleep on the couch downstairs. She woke up at about 6:00 a.m. and went upstairs to get in bed. At the time, appellant and H.R. were in her and appellant's bed. She said H.R. was awake, but was uncharacteristically silent. Mother said, "[h]er eyes were big" and she looked "scared." Mother said that, "looking back on it now, it doesn't feel right." However, she said, "at the time it just struck me as odd."

{¶ 21} Nurse Carlyn Johnson, a Forensic Interviewer and a Pediatric Sexual Assault Nurse Examiner (PSANE) at the Children's Advocacy Center at Robinson Memorial Hospital, testified that on June 25, 2015, she conducted a PSANE interview of H.R. and performed a medical examination of the child. She said the result of the exam was normal, meaning there were no tears to her genitalia. However, she said that if a child was penetrated recently (within a few days), they may see physical findings. But, she said, the tissues of a girl's private area are like the inside of a mouth, i.e., they are easily torn, but they heal quickly and really well. She said that if such conduct occurred more than one week earlier, she would not expect to see physical findings. Such would be the case here for two reasons: appellant had not subjected H.R. to any sexual conduct within the last six months and he never penetrated her vagina with his penis.

{¶ 22} Nicole Bartlett, a certified trauma counselor at Children's Advantage, a family mental health facility, testified she started working with Mother and H.R. in August 2015 and has been treating H.R. since she reported the abuse.

{¶ 23} Ms. Bartlett said that by the time the case was referred to her, J.F.S. had a "substantiated allegation" and had made a finding and the Children's Advocacy Center had completed a PSANE interview and a physical exam of H.R.

{¶ 24} Ms. Bartlett said that H.R. was still suffering from many anxiety-related symptoms when she began working with her. Her team created a treatment plan for H.R. to decrease her symptoms and help her life improve. Ms. Bartlett said that H.R's anxiety continued while she was seeing her father in supervised visitation, but that shortly after visitation stopped in December 2015, H.R.'s anxiety symptoms subsided to the point where they were able to see progress. She said, "as we progressed through therapy, her symptoms have decreased significantly and she's been able to be in school without intrusive images and concentration issues." Ms. Bartlett said that, while preparing for trial, H.R.'s trauma symptoms temporarily increased, but she said this is normal because a child re-experiences the trauma when required to remember the abuse. Ms. Bartlett testified that H.R.'s symptoms were consistent with a child that experienced sexual abuse.

{¶ 25} After the state rested its case, appellant testified on his own behalf, denying he ever abused H.R. He testified there were no hard feelings between him and Mother. He said that in general visitation was handled really well and they had a "great" working relationship co-parenting the children. Thus, he did not suggest that Mother had anything to do with H.R.'s allegations.

{¶ 26} Similarly, appellant said that after the separation and divorce, he still had a "great" relationship with H.R. and her behavior never changed toward him. He said that H.R. never got angry or resentful with him, and H.R. never gave him any reason to think she made up her allegations to harm him. When asked by his attorney on direct why H.R. would make up these allegations, he said he did not know, but he speculated it might have had something to do with a report in the local news around that time that the principal of H.R.'s school had been caught soliciting sex from a 13-year old. However, this had nothing to do with H.R. or appellant.

{¶ 27} Significantly, appellant said he did not know how H.R., a ten-year old girl, would know how to make these allegations unless she actually experienced the abuse.

{¶ 28} Further, appellant's two defense experts unwittingly provided testimony that supported the state's case. Laurence Rosenberg, M.D., a pediatrician, testified on cross-examination that regressive behaviors, like urinating problems or acting out by touching children in ways the child abuse victim was touched, such as H.R. experienced, are consistent with child sexual abuse.

{¶ 29} Likewise, appellant's second expert, psychologist, Jolie Brams, Ph.D., testified on cross that a child's (such as H.R.'s) urination problems; emotional control issues; acting out the abusive behaviors they experienced at the hands of an abuser with other children; acting out against a sibling; delay in reporting the abuse for an extended period of time, even years; and reporting the abuse to a trusted parent, rather than a doctor or therapist, are all consistent with child sexual abuse.

{¶ 30} Following the presentation of the evidence, the jury returned a verdict finding appellant guilty of one count of rape and three counts of gross sexual imposition as charged in the indictment. The jury found appellant not guilty of the two remaining counts of rape. At sentencing, the trial court addressed appellant and aptly stated, "every time [H.R.] had a meltdown, every time she was obstinate, every time she threw tantrums, she was trying to tell everybody what was happening to her. She just couldn't formulate the words to do it because you were still right there. And she loved you, and she probably still does, because you're her dad."

{¶ 31} The court sentenced appellant to 15 years to life in prison on the rape count and five years for each count of gross sexual imposition, all terms to be served consecutively to the other, for a total of 30 years to life.

{¶ 32} Appellant appeals his conviction, asserting four assignments of error. For clarity of analysis, they are taken out of order. For appellant's fourth assignment of error, he alleges:

{¶ 33} "The appellant's convictions were against the sufficienicy [sic] and the manfiest [sic] weight of the evidence."

{¶ 34} An appellate court reviewing the sufficiency of the evidence examines the evidence admitted at trial and determines whether, after viewing the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). "On review for sufficiency, courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." State v. Thompkins , 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring). Whether the evidence is legally sufficient to sustain a verdict is a question of law, which we review de novo. Id. at 386, 678 N.E.2d 541.

{¶ 35} In contrast, a court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, and considers the credibility of the witnesses. Thompkins, supra , at 387, 678 N.E.2d 541. The court determines whether, in resolving conflicts in the evidence and deciding witness credibility, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Id. The discretionary power to grant a new trial should only be exercised in the exceptional case in which the evidence weighs heavily against the conviction. Id. Witness credibility rests solely with the finder of fact, and an appellate court is not permitted to substitute its judgment for that of the jury. State v. Awan , 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). The role of the reviewing court is to engage in a limited weighing of the evidence in determining whether the state properly carried its burden of persuasion. Thompkins, supra , at 390, 678 N.E.2d 541. If the evidence is susceptible to more than one interpretation, an appellate court must interpret it in a manner consistent with the verdict. State v. Banks , 11th Dist. Ashtabula No. 2003-A-0118, 2005-Ohio-5286, 2005 WL 2416552, ¶ 33.

{¶ 36} Appellant was convicted of rape, in violation of R.C. 2907.02(A)(1)(b), which provides: "No person shall engage 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, whether or not the offender knows the age of the other person." "Sexual conduct" is defined at R.C. 2907.01(A) as

{¶ 37} vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

{¶ 38} Appellant was also convicted of three counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), which provides: "No person shall have sexual contact with another, not the spouse of the offender; [or] cause another, not the spouse of the offender, to have sexual contact with the offender * * * when [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person." "Sexual contact" is defined at R.C. 2907.01(B) 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."

{¶ 39} With respect to appellant's rape conviction, the state presented evidence that appellant had H.R. perform fellatio on him at the family home and in appellant's apartment and that he performed cunnilingus on her in the family home. In State v. Falkenstein , 8th Dist. Cuyahoga No. 83316, 2004-Ohio-2561, 2004 WL 1119620, appeal denied by the Ohio Supreme Court at 107 Ohio St.3d 1405, 2005-Ohio-5859, 836 N.E.2d 1226, the Eighth District held that " 'the law requires no further activity to constitute cunnilingus [under R.C. 2907.01(A) ] beyond the placing of one's mouth on the female's vagina.' " Id. at ¶ 15, quoting State v. Bailey , 78 Ohio App.3d 394, 395, 604 N.E.2d 1366 (1st Dist.1992). With respect to appellant's convictions for gross sexual imposition, H.R. testified that appellant sucked her breasts, touched her vagina with his fingers, and rubbed his penis against her vagina.

{¶ 40} In support of his sufficiency argument, appellant argues that, other than H.R., the state did not present any physical evidence of abuse. Appellant fails, however, to cite any case law holding that such evidence was necessary to support his convictions. This court, in State v. Henderson , 11th Dist. Trumbull No. 2001-T-0047, 2002-Ohio-6715, 2002 WL 31744702, stated: "When prosecuting an offender for rape, the state is not required to provide physical evidence of penetration. Rather, all the state must do is establish, beyond a reasonable doubt, that sexual conduct occurred. This may be accomplished through either physical evidence and/or witness testimony." Id. at ¶ 36. Further, this court held, "[t]he victim's testimony, if believed, [is] sufficient to convict appellant of the charged crime." Id. In any event, as Nurse Johnson testified, physical evidence would not have been expected here because H.R. did not report appellant penetrated her vagina with his penis and his sexual abuse stopped about six months before H.R. reported the abuse to Mother.

{¶ 41} With respect to appellant's manifest-weight argument, he fails to reference any inconsistencies in H.R.'s testimony or between her testimony and that of the other witnesses, which is the usual basis of a manifest-weight challenge. Instead, he argues that the jury should have disregarded the state's evidence in favor of his testimony, his character witnesses, and his two hired experts. He argues that because H.R.'s doctors and therapists testified that H.R. did not report the abuse to them while they were treating her, this casts doubt on her credibility. However, appellant's own expert, Jolie Brams, psychologist, testified it is not unusual for a child sex abuse victim to delay reporting the abuse for years and it is also not unusual for the child to first disclose abuse to a trusted adult, such as Mother, rather than to a medical provider.

{¶ 42} Further, the fact that appellant was able to hire two defense experts to challenge H.R.'s credibility does not mean the jury was required to accept their testimony. The jury was entitled to consider the fact that neither witness ever interviewed, examined, evaluated, or even met H.R., while the state's experts interviewed, evaluated, and/or treated her over an extended period of time. Moreover, the state demonstrated on cross-examination serious weaknesses in the testimony of both defense experts. For example, Dr. Rosenberg said he is a pediatrician, not a child psychologist, and does not treat children psychologically for sexual abuse. And, Dr. Brams said she testifies primarily for the defense. Moreover, both witnesses said the primary reason they doubted abuse occurred here was because none of the doctors H.R. had seen in the past made any reports of abuse. However, this is not surprising since H.R. did not disclose the abuse to them. Moreover, as noted, Dr. Brams testified that a child sex abuse victim's delay in disclosing the abuse, even for years, is consistent with child sexual abuse.

{¶ 43} In finding appellant guilty, the jury obviously found H.R., Mother, and the medical professionals presented by the state to be more credible than appellant and his witnesses. As the finder of fact, this was the jury's province and we cannot say this is the exceptional case in which the jury clearly lost its way and created such a manifest miscarriage of justice that appellant is entitled to a new trial.

{¶ 44} We therefore hold appellant's conviction was supported by sufficient evidence and was not against the manifest weight of the evidence.

{¶ 45} Appellant's first and second assignments of error are related and thus considered together. They allege:

{¶ 46} "[1.] The trial court abused its discretion by violating the appellant's right to a fair trial under the Fifth and Fourteeth [sic] Amendment [sic] to the United States Constitution and Section 16, Article I of the Ohio Constitution when it excluded part of the expert opinion of Dr. Brams.

{¶ 47} "[2.] The trial court committed plain error by violating the appellant's right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution when it gave a curative instruction that caused the jury to believe that they must disregard all of Dr. Bram's [sic] expert opinion."

{¶ 48} We review the trial court's ruling excluding evidence for an abuse of discretion. State v. Dyer , 2017-Ohio-426, 84 N.E.3d 57, ¶ 40. This court has stated: " 'a trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Id. , quoting Rigby v. Lake Cty. , 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991).

{¶ 49} In State v. Boston , 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989), the Ohio Supreme Court held that "an expert's opinion testimony on whether there was sexual abuse would aid the jurors in making their decision and is, therefore, admissible pursuant to Evid.R. 702 and 704." (Emphasis added.) However, "[a]n expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant" who claims she has been raped. (Emphasis added.) Id. at syllabus. In State v. Stowers , 81 Ohio St.3d 260, 261, 690 N.E.2d 881 (1998), the Supreme Court clarified its syllabus in Boston, and held "[a]n expert witness's testimony that the behavior of an alleged child victim of sexual abuse is consistent with the behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence." Stowers at 261, 690 N.E.2d 881. " 'Most jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse.' " Id. at 262, 690 N.E.2d 881, quoting Boston at 128, 545 N.E.2d 1220. Such expert testimony is permitted "to counterbalance the trier of fact's natural tendency to assess * * * delayed disclosure as weighing against the believability and truthfulness of the witness." Stowers at 263, 690 N.E.2d 881.

{¶ 50} Dr. Brams testified that, while she had never met or interviewed H.R., she reviewed certain records regarding H.R. selected by defense counsel. As a result, she testified about five findings she made, which she felt indicated H.R. was not credible. She found that: (1) H.R. had been treated by many providers over the years and they did not report sexual abuse; (2) the providers diagnosed H.R. with mental health problems, not sexual abuse; (3) H.R.'s young age when the abuse allegedly began raised concerns about the accuracy of her memory; (4) H.R.'s disclosure of sexual abuse lacked emotion; and (5) H.R. had external influences, including the need for attention. Dr. Brams also testified, H.R. "has significant difficulties with reality testing and truth telling * * *." While this testimony came dangerously close to violating Boston and Stowers, defense counsel was apparently not satisfied with it and actually asked his witness to give an opinion about the credibility of H.R.'s allegations. In response, Dr. Brams answered: "My opinion is that * * * this child's statements regarding her father's * * * sexually abusing her are a result of her mental health concerns and developmental experiences, rather than actual acts perpetrated by her father."

{¶ 51} Upon giving this final opinion, the trial court called counsel to the bench and advised that Dr. Brams had improperly given an opinion about H.R.'s veracity. The trial court called a recess, after which the court instructed the jury:

{¶ 52} Ladies and Gentlemen, before we begin with the cross-examination of this witness by [the state's counsel] I am going to give you an additional instruction in that the opinion rendered just before we took the break by Dr. Brams, I am striking her answer. You are to totally disregard it as if it were never said. * * * The ultimate decision of credibility of witnesses lies with you, the jury, not with the witness who testifies.

{¶ 53} Contrary to appellant's argument, the court struck Dr. Brams' entire answer, not just part of it. In arguing on appeal that Dr. Brams' opinion was permissible, appellant is asking this court to extend or ignore the rule in Boston and Stowers . He argues defense counsel should have been allowed to call a hired expert to challenge the veracity of a victim in a child rape case, as opposed to the state calling an expert to dispel a misconception that might weigh against the child-victim's credibility, which is the point of Stowers . Id. at 262-263, 690 N.E.2d 881. While some Districts have held that any error resulting from a state expert's suggestion that a child victim was credible was harmless as long as the victim testified and was subject to cross, none of the cases cited by appellant held that Boston and Stowers apply to a defense expert hired to challenge the credibility of the child, especially where the expert never even met the child.

{¶ 54} In any event, even if the court erred in striking Dr. Brams' opinion, the error would have been harmless in light of the trial court's admission of Dr. Brams' other testimony, as outlined above, in which she indicated H.R. was not credible. Any such error would also be harmless because, as appellant concedes, his other hired expert, Dr. Rosenberg, testified H.R.'s allegations were not truthful.

{¶ 55} We therefore hold the trial court did not abuse its discretion in striking the opinion of Dr. Brams regarding H.R.'s credibility.

{¶ 56} Next, appellant argues that the trial court's instruction that the jury disregard Dr. Brams' opinion regarding H.R.'s veracity was vague because the court did not sufficiently explain what opinion it was striking. As a result, appellant argues that since Dr. Brams' entire testimony was opinion, the jury may have concluded the court was striking her entire testimony. However, as appellant concedes, trial counsel did not object to this instruction and, thus, our review of this issue is for plain error only. In any event, since the judge stated she was referring to the opinion provided by Dr. Brams just before the break, we do not see how the jury could have reasonably understood that the court was referring to anything other than the witness' final opinion that H.R. was not credible. Further, defense counsel put the unstricken testimony of Dr. Brams before the jury in closing argument.

{¶ 57} We thus hold the court did not commit plain error in instructing the jury to disregard Dr. Brams' opinion on this issue.

{¶ 58} For appellant's third and final assigned error, he alleges:

{¶ 59} "The appellant's right to effective trial counsel under Sixth [sic] Amendment to the United States Constitution was violated by trial counsel's lack of knowledge of recent case law pertaining to the admissibility of Dr. Bram's [sic] expert testimony, failing to object to the vagueness of the curative jury instruction pertaining to Dr. Bram's [sic] testimony & [sic] failing to confront the alleged victim with prior statement recorded and referenced in motion for new trial."

{¶ 60} The standard of review for ineffective assistance of counsel was stated by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and has been repeatedly followed by this court. State v. McKinney , 11th Dist. Trumbull No. 2007-T-0004, 2008-Ohio-3256, 2008 WL 2582860, ¶ 187.

{¶ 61} In order to support a claim of ineffective assistance of counsel, the defendant must satisfy a two-prong test. First, he must show that counsel's performance was deficient. Strickland, supra . This requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Id. Second, the defendant must show the deficient performance prejudiced the defense. In order to satisfy this prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's * * * errors, the result of the [trial] would have been different." Id. at 694, 104 S.Ct. 2052 ; accord State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.

{¶ 62} Appellant argues his trial counsel was ineffective for three reasons. First, he argues his counsel was unaware of case law regarding the admissibility of Dr. Brams' expert testimony. However, because defense counsel argued this testimony was admissible and also because we hold the opinion at issue was properly stricken by the court, counsel's performance was not deficient.

{¶ 63} Next, appellant argues counsel was deficient in not objecting to the vague nature of the court's jury instruction about Dr. Brams' opinion testimony. However, because we hold the trial court's instruction was not vague, again, counsel was not deficient.

{¶ 64} Finally, appellant argues his trial counsel was ineffective in not cross-examining H.R. regarding a recording she made for appellant telling him she loved him. However, "[t]he scope of cross-examination falls within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel."

State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101.

{¶ 65} We therefore hold that appellant failed to show his trial counsel was ineffective.

{¶ 66} For the reasons stated in this opinion, the assignments of error lack merit and are overruled. It is the order and judgment of this court that the judgment of the Portage County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.

{¶ 67} I agree with appellant that his convictions are based on insufficient evidence, and are against the manifest weight of the evidence. I would reverse and remand.

{¶ 68} The only evidence against appellant is the testimony of H.R. herself, and evidence that H.R.'s myriad behavior problems might be consistent with sex abuse. Against this is appellant's own testimony, and the testimony of his experts. I respectfully submit that Dr. Brams' testimony is critical. The majority states, correctly, that the balance of her work is done on behalf of defendants in cases involving alleged sex abuse. The majority fails to acknowledge that some 30% of her work is done on behalf of the courts directly. She is a nationally recognized expert in child sex abuse.

{¶ 69} As the majority acknowledges, Dr. Brams identified several areas of concern regarding H.R. The majority further acknowledges that the first was the fact that no mental health professional treating H.R. had ever considered whether sex abuse might be the cause of her behavior problems. But the majority fails to consider the breadth of the treatment she has received. H.R. has been in counseling and treatment constantly since she was three years old. She has worked with psychiatrists, psychologists, and social workers. All were mandated reporters of suspected sex abuse. Nevertheless, during the seven years from the time she began treatment, until she disclosed her allegations to her mother, not one of these specialists even considered exploring the issue of sex abuse. Dr. Brams testified this is extraordinary.

{¶ 70} Having reviewed H.R.'s lengthy medical records, Dr. Brams noted that H.R. has consistently expressed hatred toward her little sister, resulting in verbal and extreme aggression, including kicking her sister in the head. H.R. has eating disorders. She has no control of her emotions. She is unable to perceive social situations. Dr. Brams testified H.R. appears to have cognitive discontrol, with mental instability underlying all her actions.

{¶ 71} The majority states that Dr. Brams testified that "H.R.'s young age when the abuse allegedly began raised concerns about the accuracy of her memory." I respectfully disagree with the majority's characterization of Dr. Brams' testimony on this point. H.R. alleged the abuse began when she was three, or three and one half. Dr. Brams testified that a three and one-half year old child likely would have no memory of the type of abuse alleged. Believing this to be the most important part of Dr. Brams' testimony, I quote it at length.

{¶ 72} Defense Counsel: "When would a child start to have memory?"

{¶ 73} Dr. Brams: "Well, this is a topic, the topic of children's memory has been of concern to social scientists for about the past thirty-five, forty years. And there as a voluminous amount of research on children's memory which would take days testify about. But in general, what the research shows is that prior to age about fifty-four to fifty-eight months , that's general, so you're looking at about three and a half years old, children really are unable to store meaningful memories over the course of time than any verbal or story telling narrative to them. They may be able to store flashes of memory but they have to be memories that have significance. There has to be a central significance, something that's painful, something that's frightening, something that is very central, difference to their life, such as a car accident.

{¶ 74} "You know Hayley was involved in a car accident and it would not be surprising to me if she had some painful, frightening memories of that event, especially because that was something that her mother and family it meant something to them and they talked about that. That was a family event.

{¶ 75} "* * *

{¶ 76} Defense Counsel: "Doctor, at that age, and I don't mean to be getting so graphic here, but would the act of cunnilingus be a memory that a child would have?

{¶ 77} Dr. Brams: "This is what I'm getting into. So when we talk about cunnilingus at age three and a half years old, it is not painful, it is nothing a child would think would be sexual or criminal or anything because children at that age have been diapered for years. They've had baby powder or Desitin or KY put onto their vulva. Anyone's who had children, we diaper them, they get diaper rash. I will be graphic here, everybody who's diapered a female child, has touched their vulva. It's just part of parenting and part of taking care of a child. So she's had her vulva touched. If it is cunnilingus, it's not painful, there's no reports that if this happened he scared her or anything like that. The report is that he did cunnilingus supposedly when mom was giving another child a bath or something in a hotel room or whatever.

{¶ 78} "There is nothing in the literature that would substantiate the child would remember this type of event at that young age. Because the research is abundantly clear that children of this age do not store memories unless they are central that they're frightening or something that's repeated like a trip to Disney World.

{¶ 79} "I mean, one of the things-all my friends take their grandchildren to Disney World and they spend thousands and thousands of dollars. My advice is don't do that unless you're doing that for yourself because the kids don't remember. Because they're too young to remember that unless you repeat that over and over again.

{¶ 80} "So the cunnilingus, the research would suggest that that is not a valid memory.

{¶ 81} Defense Counsel: "And, Doctor, if it was a very traumatic thing like forceful-"

{¶ 82} Dr. Brams: "Intercourse?"

{¶ 83} Defense Counsel: "Intercourse."

{¶ 84} Dr. Brams: "Slapping someone around, hurting somebody, it's possible she would have a flashable memory of that. If something was inserted into her, she was frightened, if she was cut, if she was put into a closet, if she was scared, if something terrible happened to her, there is a possibility at that age, and again we're getting into that fifty-four, fifty-eight months, that she may have a memory of that.

{¶ 85} "But cunnilingus in that situation, based scientifically with a reasonable psychological possibility, anything is possible, but when you're looking a psychological scientific probability, it is not probable that she would have remembered that." (Emphasis added)

{¶ 86} I further quote from near the end of Dr. Brams' testimony, when she made her last finding regarding H.R. The majority characterizes this as a finding that "H.R. had external influences." I think the testimony goes much further.

{¶ 87} Defense Counsel: "Doctor, what is your next finding?"

{¶ 88} Dr. Brams: "Well, my next finding is just again about her perceptions. I don't want to call [H.R.] a liar, that's not my testimony today. My testimony is not that this child lies, that's inappropriate to say. And it's inappropriate to say that she's a bad child or that she's a deviant child, that is not my testimony. But this child's mental health, the structure of her mental health is that she has a difficult time perceiving truth from lies, facts from fiction. And my concern is that her tendency to say what she wants, that a boy kissed her on the thigh and he didn't, she kissed a boy on the lips and she didn't, she cut herself because of Demi Lovato and she didn't. She told one therapist that she never tells the truth.

{¶ 89} "This is a continuing personality pattern with her. She's too young to say her personality's formulated and you hope it'll change. But there's some underlying issues with her about telling the truth. And it's not that she is a purposeful terrible little girl. It's a very sad situation. But in terms of forensic court related issue, I have to go on empathy for [H.R.] and look at the facts of the matter. And the facts of the matter are, does she have the mental structure, the personality structure to be able to be truthful and to understand the significance of what she's saying. And my concern is if you look at her from three years old to the point in time that I stopped looking at the records, my professional conclusion is that she has significant difficulties with reality testing and truth telling that would raise significant red flags about her statements." (Emphasis added.)

{¶ 90} In sum, Dr. Brams found that H.R. was never even considered a potential victim by any of the many mental health professionals who treated her throughout the years. Dr. Brams found she had memories from a lengthy period of her short life that she was unlikely to have. Dr. Brams found her mental structure to be such as to make it difficult for her to distinguish fantasy or wish from fact.

{¶ 91} "A challenge to the sufficiency of the evidence tests whether the state has properly discharged its burden to produce competent , probative, evidence on each element of the offense charged." (Emphasis added.) State v. Petefish , 7th Dist. Mahoning No. 10 MA 78, 2011-Ohio-6367, 2011 WL 6163971, ¶ 16. H.R.'s testimony is the sum and substance of the state's case. Therefore, the question presented in this case is not H.R.'s veracity: it is whether she was competent to testify. Based on Dr. Brams' testimony, she was not. Thus, I would find the state presented insufficient evidence to support appellant's convictions. For the same reasons, I would find the convictions against the manifest weight of the evidence.

{¶ 92} I respectfully dissent.