author: PATRICIA ANN BLACKMON, J.:

text:
    Steve NOLAN, Plaintiff-Appellee v. CITY OF CLEVELAND, et al., Defendants-Appellants
    No. 105552
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Barbara A. Langhenry, Director of Law, Elizabeth M. Crook, L. Stewart Hastings, Assistant Director of Law, City of Cleveland, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT
    Christian R. Patno, Colin Ray, McCarthy Lebit Crystal & Liffman Co., L.P.A., 101 Prospect Avenue, West, 1800 Midland Building, Cleveland, Ohio 44115, Grant A. Goodman, Grant Goodman Law Office, 1360 West Ninth St., Suite 410, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Blackmon, J., E.T. Gallagher, P.J., Boyle, J.
    JOURNAL ENTRY AND OPINION
   PATRICIA ANN BLACKMON, J.:

{¶ 1} Defendant-appellant, city of Cleveland, appeals from the denial of its motion for summary judgment on the issue of political subdivision immunity in a personal injury action filed by plaintiff-appellee Steve Nolan ("Nolan"). The city assigns the following error for our review:

The city has political subdivision immunity as a matter of law pursuant to R.C. 2744 et seq. with regard to Nolan's allegations in his complaint.

{¶ 2} Having reviewed the record and the controlling case law, we affirm the decision of the trial court.

{¶ 3} In his complaint for relief, Nolan alleged that in May 2013, while he was walking across the tree lawn at 7117 Lockyear Avenue in Cleveland, he sustained injuries after he stepped onto the side of a "water meter vault cover/manhole cover" that was not secured, and "flipped around." Nolan alleged that the city and the city's Division of Water ("Water Department") were negligent and reckless for creating or permitting a dangerous condition, failure to inspect, failure to warn, and failure to maintain and repair the cover.

{¶ 4} The circumstances surrounding Nolan's injury were essentially undisputed and established that Nolan and his girlfriend, Charlene Wilson ("Wilson"), were parking his vehicle near the home of his friend, Kevin Bell ("Bell"). As he walked across the tree lawn, Nolan stepped onto an unsecured manhole cover and fell.

{¶ 5} The city moved for summary judgment. The city argued that the Water Department is not sui juris so it does not have the capacity to be sued and that the city is immune from liability under R.C. 2744.02 and 2744.03. The city maintained that property owners are responsible for maintenance and repair of meter vault covers/manhole covers pursuant to Cleveland Codified Ordinance ("CCO") 533.01(b), which provides in pertinent part:

New Connections.
* * *
(2) When vaults are required, they shall be furnished by the owner or customer and approved by the Commissioner.

Cleveland also submitted sample property owner repair notices that are used to apprise a property owner of needed repairs. These notices state that "[t]he property owner is responsible for repairs to the meter vaults and service pipes between the curb valve, (generally located within the tree lawn), and the building."

{¶ 6} In opposition, Nolan argued that the city operates the water department as a proprietary function and is not immune from negligently maintaining the area. He also presented evidence that prior to his injury, another individual, Desmond Richmond ("Richmond"), fell at the same spot twice and reported the problem to the city. After Nolan's injury, the city fixed the manhole cover.

{¶ 7} In a five-page opinion, the trial court determined that the Water Department is not a legal entity that is subject to suit, and it dismissed the Water Department from the action. However, the trial court rejected the city's remaining arguments in support of its motion for summary judgment. The court held that a plain reading of CCO 533.01 does not support the city's argument; the maintenance and operation of a municipal corporation water supply system is proprietary function of political subdivision under R.C. 2744.01(G)(2)(c) for which the city does not have immunity; and that the evidence presented by Nolan demonstrates that the manhole cover had been repaired and replaced by the city of Cleveland on at least one prior occasion.

Review of Summary Judgment

{¶ 8} In its assigned error, the city argues that the trial court erred in denying its motion for summary judgment because it is not liable for Nolan's injury.

{¶ 9} This court reviews a trial court's grant of summary judgment under the de novo standard. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus; Zivich v. Mentor Soccer Club , 82 Ohio St.3d 367, 370, 1998-Ohio-389, 696 N.E.2d 201. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.

R.C. Chapter 2744

{¶ 10} The Ohio Supreme Court has set forth a three-tiered analysis to determine whether a political subdivision is immune from tort liability: the first tier is to establish immunity under R.C. 2744.02(A)(1) ; the second tier is to analyze whether any of the exceptions to immunity under R.C. 2744.02(B) apply; if so, then under the third tier, the political subdivision has the burden of showing that one of the defenses of R.C. 2744.03 applies. See Cater v. Cleveland , 83 Ohio St.3d 24, 28, 1998-Ohio-421, 697 N.E.2d 610 ; Hubbard v. Canton City School Bd. of Edn. , 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 10-12. If a defense applies, then immunity is reinstated. Id. ; Fedarko v. Cleveland , 2014-Ohio-2531, 12 N.E.3d 1254, ¶ 10-12 (8th Dist.).

{¶ 11} In his complaint, Nolan alleged that the city negligently maintained and failed to repair the manhole cover and water vault within the immunity exception for proprietary functions set forth in R.C. Chapter 2744.

{¶ 12} In Fedarko , this court recently considered a city's liability for injuries incurred after the plaintiff stepped onto a manhole cover on a sidewalk that "gave way." In rejecting the city of Cleveland's claim of sovereign immunity, this court held:

R.C. 2744.01(G)(2)(c) provides that a "proprietary function" includes "[t]he establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a bus line or other transit company, an airport, and a municipal corporation water supply system." (Emphasis added.)
* * * The water meter vault, although abandoned, and the cover over the vault were established as part of the city's water system. Just because they were located on and under the sidewalk does not change this analysis.
* * * R.C. 2744.02(B)(2) exception to immunity as they would be part of the city's water system and, therefore, a proprietary function.

Fedarko at ¶ 13.

{¶ 13} Likewise, in this matter, we conclude that the manhole cover on which Nolan fell is part of the city's water system. It is also within the political subdivision's proprietary function within R.C. 2744.02(B)(2)'s exception to sovereign immunity.

{¶ 14} Accordingly, this portion of the assigned error is without merit.

CCO 533.01

{¶ 15} The city additionally argues that the trial court erred in concluding that the water vault and manhole cover that caused Nolan's injury are within the city's proprietary water system. The city asserts that in accordance with its home rule powers, it enacted CCO 533.01, in order to require the property owners to "furnish a water vault, if needed," and this establishes that the city does not own, and is not required to maintain water vaults and manhole covers within its water system. In opposition, Nolan argues that CCO 533.01 pertains to the installation of new connections and does not abrogate the city's general duty of maintenance and repair. Additionally, Nolan asserts that the city's interpretation of CCO 533.01 is contrary to R.C. 2744.01(G)(2)(d) that identifies a municipality's "maintenance, destruction, operation, and upkeep of a sewer system" as a political subdivision's proprietary function for which civil liability may attach.

{¶ 16} Section 4, Article XVIII, Ohio Constitution empowers Ohio municipalities to own and operate public utilities, including water and sewer systems, for the purpose of providing utility services to themselves and their residents. R.C. Chapter 743; Xenia v. Ohio , 140 Ohio App.3d 65, 69, 746 N.E.2d 666 (10th Dist.2000). It is settled law that municipalities have the duty to maintain their public sewer systems. Paul v. Semirale , 8th Dist. Cuyahoga No. 70438, 1996 WL 502143 (Sept. 5, 1996). However, municipalities are not generally obligated to maintain and repair lateral sewer lines on private property. Pfile v. Circleville , 4th Dist. Pickaway No. 03CA11, 2003-Ohio-7165, 2003 WL 23094871, ¶ 19 ; Fatobene v. Warren , 11th Dist. Trumbull No. 95-T-5269, 1996 Ohio App. LEXIS 1890 (May 10, 1996).

{¶ 17} Here, by its plain language, CCO 533.01 does not shift the duty of maintenance and repair of water vaults and manhole covers to the individual property owners, because the ordinance pertains to "new connections." As succinctly explained by the trial court:

A plain reading of [CCO 533.01(b) ] does not support the City's interpretation. The ordinance applies to new connections and simply allocates the cost and responsibility for supplying water vault in the event one is needed. Other ordinances specifically address existing connections and provide, for example, "[r]eplacement, repair and maintenance of metering devices shall be performed only by authorized employees of the Division or by other authorized representatives of the Division" and "The Division of Water, after notification to the owner, shall repair all private meters whenever deemed necessary, at the expense of the owner." CCO 533.01(c) and 533.14. Thus, the plain language of the ordinances does not support the City of Cleveland position that the property owner is responsible for inspecting, maintaining and repairing manholes, manhole covers, vaults and vault covers.

{¶ 18} Moreover, this matter does not involve damage due to a property owner's lateral sewer line. Rather, the undisputed facts indicate that Nolan was injured when he fell due to an unsecured manhole cover. Further, the evidence demonstrated that the city had previously repaired the area and that it also fixed the cover after Nolan's injury. Parenthetically, we also note that in Puffenberger v. Cleveland , 8th Dist. Cuyahoga No. 99660, the city conceded that the maintenance of a manhole located on a tree lawn "qualifies as a 'proprietary function.' " Id. at ¶ 9. CCO 625.22; CCO 625.23 (other code provisions prohibiting tampering with manhole covers).

{¶ 19} Accordingly, we conclude that CCO 533.01 does not operate to exclude the manhole cover and water vault from the scope of the city's water system.

{¶ 20} This portion of the assigned error is without merit.

{¶ 21} Judgment is affirmed.

EILEEN T. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR


source: Caselaw Access Project

author: FRANK D. CELEBREZZE, JR., J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Michael A. DELP, Defendant-Appellant
    No. 105467
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Ronald A. Skingle, 6505 Rockside Road, Suite 320, Independence, Ohio 44131, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Celebrezze, J., Kilbane, P.J., and Boyle, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Michael Delp ("appellant"), filed a notice of appeal from two criminal cases, Cuyahoga C.P. Nos. CR-15-599103-B and CR-15-595152-B. In CR-15-595152-B, because the trial court improperly imposed a single prison sentence for multiple convictions, we remand the case for de novo resentencing on each count. In CR-15-599103-B, after thoroughly reviewing the record and law, we affirm appellant's convictions and sentence for burglary and assault.

I. Factual and Procedural History

{¶ 2} In CR-15-595152-B, appellant pled guilty to two fifth-degree felony counts of drug possession in August 2015. The trial court sentenced appellant to a blanket prison sentence of nine months.

{¶ 3} In CR-15-599103-B, the Cuyahoga County Grand Jury returned a three-count indictment in October 2015 charging appellant and his two codefendants, Chelsey Mounts and Julio Smith, with (1) aggravated burglary, a first-degree felony in violation of R.C. 2911.11(A)(1) ; (2) felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1) ; and (3) felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1). Counts 1 and 3 pertained to victim T.C. Count 2 pertained to victim C.F. Appellant was arraigned on November 3, 2015. He pled not guilty to the indictment.

{¶ 4} The parties reached a plea agreement. The state amended Count 1 to burglary, a third-degree felony in violation of R.C. 2911.12(A)(3). The state amended Count 2 to assault, a first-degree misdemeanor in violation of R.C. 2903.13. On February 8, 2016, appellant and his codefendants pled guilty to Counts 1 and 2 as amended. Count 3 was nolled. The trial court accepted appellant's guilty plea, referred appellant to the probation department for a presentence investigation report ("PSI"), and set the matter for sentencing.

{¶ 5} The trial court held a sentencing hearing on March 17, 2016. The trial court sentenced appellant to a prison term of three years on Count 1 and a prison term of six months on Count 2. The trial court ordered the counts to run concurrently to one another and concurrently to appellant's sentence in CR-15-595152-B.

{¶ 6} On February 15, 2017, appellant, acting pro se, filed the instant appeal challenging the trial court's judgment. He assigns two errors for review:

I. The trial court erred to the prejudice of the [a]ppellant in accepting a guilty plea, which was not voluntarily or knowingly [sic], in violation of [a]ppellant's due process rights under the [Fifth] Amendment of the United States Constitution, Article I, Section 16 of the Ohio Constitution, and Ohio Criminal Rule 11 when actual innocence was lodged by [a]ppellant at sentencing via joint agreement.
II. [The] [t]rial [c]ourt erred by imposing [a] maximum sentence on [appellant], via joint agreement.

II. Law and Analysis

{¶ 7} As an initial matter, as noted above, appellant listed both CR-15-599103-B and CR-15-595152-B in his notice of appeal. The trial court's sentencing entry in CR-15-595152-B provides, in relevant part, "the court imposes a prison sentence at the Lorain Correctional Institution of 9 month(s)." Although appellant pled guilty to two counts of drug possession, the trial court did not sentence appellant on both counts. Accordingly, the trial court's sentence in CR-15-595152-B is not a final appealable order. See State v. Dumas , 8th Dist. Cuyahoga No. 95760, 2011-Ohio-2926, 2011 WL 2436601, ¶ 15 (the trial court's order of sentence does not constitute a final appealable order because the trial court imposed a single sentence for both of the defendant-appellant's convictions). The remedy is to remand the matter to the trial court for a de novo resentencing on each count individually. See State v. Lynch , 8th Dist. Cuyahoga No. 104200, 2016-Ohio-7721, 2016 WL 6671810, ¶ 6, citing State v. Blair , 8th Dist. Cuyahoga No. 102548, 2015-Ohio-5416, 2015 WL 9438306, ¶ 13-14.

{¶ 8} We shall proceed to review appellant's arguments challenging his guilty plea and the trial court's sentence in CR-15-599103-B.

A. Guilty Plea

{¶ 9} In his first assignment of error, appellant argues that his guilty plea was not knowingly, intelligently, and voluntarily entered.

{¶ 10} A defendant's guilty plea must be made knowingly, intelligently, and voluntarily, and "[f]ailure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In order to ensure that a plea is entered knowingly, intelligently, and voluntarily, Crim.R. 11(C) requires the trial judge to determine whether the criminal defendant is fully informed of his or her rights, both constitutional and nonconstitutional. The court must also confirm that the defendant understands the consequences of his plea before accepting a guilty plea. Id.

{¶ 11} Crim.R. 11(C) outlines the trial court's duties in accepting guilty pleas:

(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

{¶ 12} Trial courts must strictly comply with the requirements related to the waiver of constitutional rights under Crim.R. 11(C)(2)(c) in conducting plea colloquies. These include the right to a jury trial, the right of confrontation, and the privilege against self-incrimination. Boykin v. Alabama , 395 U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). "Strict compliance does not require an exact recitation of the precise language of the rule, but instead focuses on whether the trial court explained or referred to the right in a manner reasonably intelligent to that defendant." State v. Schmick , 8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263, 2011 WL 1797234, ¶ 8. A trial court's failure to inform a defendant of any right in Crim.R. 11(C)(2)(c) invalidates the plea. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 1.

{¶ 13} Substantial compliance with Crim.R. 11(C) is sufficient when waiving nonconstitutional rights. State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The nonconstitutional rights that a defendant must be informed of are the nature of the charges with an understanding of the law in relation to the facts, the maximum penalty, and that after entering a guilty plea or a no contest plea, the court may proceed to judgment and sentence. Crim.R. 11(C)(2)(a) and (b). Substantial compliance means that under the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving. Nero at 108, 564 N.E.2d 474.

{¶ 14} In the instant matter, appellant argues that his guilty plea was not knowingly, intelligently, and voluntarily entered based on the following three grounds: (1)

incorrect advice from his trial counsel, (2) misstatements by the trial court during the change of plea hearing, and (3) the trial court interrupted him during the change of plea hearing.

{¶ 15} First, appellant argues that his guilty plea was premised on incorrect legal advice from his trial counsel regarding the maximum sentence for the burglary count. The "incorrect legal advice" to which appellant is referring was a statement his counsel made during the March 17, 2016 sentencing hearing-more than one month after appellant entered his guilty plea.

{¶ 16} During the sentencing hearing, appellant's counsel stated, "I know you have a range here on the felony of the third degree, all the way up to 30 months on the high end and all the way down to a community-controlled sanction on the low end[.]" (Tr. 12-13.) Pursuant to R.C. 2929.14(A)(3)(b), however, the maximum sentence for a felony of the third degree is a prison term of 36 months.

{¶ 17} We cannot say that counsel's misstatement during the sentencing hearing affected the knowing, voluntary, and intelligent nature of the guilty plea that appellant entered more than one month earlier. Aside from highlighting counsel's misstatement at the sentencing hearing, appellant does not allege that his trial counsel gave inaccurate legal advice before or at the time he entered the plea, nor that counsel provided ineffective assistance.

{¶ 18} During the change of plea hearing, the trial court accurately advised appellant that the burglary count "carr[ied] with it a potential prison sentence of anywhere from nine, 12, 18, 24, 30, or 36 months in prison[.]" (Tr. 8.)

{¶ 19} Second, appellant argues that his plea was not knowingly, intelligently, and voluntarily entered based on the trial court's misstatements during the change of plea hearing. Appellant argues that the trial court misstated that the burglary count was a felony of the fourth degree during the change of plea hearing. The nature of the charges and the maximum penalty involved are nonconstitutional advisements.

{¶ 20} In advising appellant of the maximum penalty he faced by pleading guilty, the trial court explained:

Through this agreement, the plea which you're agreeing to plead guilty to has been reduced to a felony of the fourth degree , punishable by a possible community control sanctions supervised by the probation department. It does carry with it a potential prison sentence of anywhere from nine, 12, 18, 24, 30, or 36 months in prison[.]"

(Emphasis added.) (Tr. 8.) After review, we recognize that the trial court misstated that the amended burglary count was a fourth-degree rather than a third-degree felony. Despite this misstatement, the trial court correctly advised appellant about the maximum penalty for the burglary offense. Furthermore, when the trial court took appellant's plea, it correctly identified the burglary count as a felony of the third degree:

THE COURT: Mr. Delp, how do you plead to the now-amended charge of burglary, a felony of the third degree as it pertains to the September 1st allegation of last year, as well the misdemeanor assault; the alleged victims are [T.C.] and [C.F.], how do you plead?
APPELLANT: Guilty.

(Emphasis added.) (Tr. 9.)

{¶ 21} Aside from the trial court's isolated misstatement, the record reflects that both the prosecutor and defense counsel confirmed that appellant would be pleading guilty to a third-degree felony burglary count. (Tr. 4.)

{¶ 22} Accordingly, we find that the trial court substantially complied with the nonconstitutional requirements of Crim.R. 11. Furthermore, appellant has failed to demonstrate prejudice-that he would not have pled guilty but for the trial court's isolated misstatement. Appellant did not attempt to withdraw his guilty plea before sentencing, which was conducted more than one month after the change of plea hearing, confirming that he was, in fact, fully apprised of the nature of the burglary charge and the maximum penalty he was facing under the plea. See State v. Moore , 8th Dist. Cuyahoga No. 102400, 2015-Ohio-4182, 2015 WL 5864786, ¶ 10.

{¶ 23} Appellant further argues that the trial court misstated that C.F. was a victim. He contends that the court's reference to victim C.F. was improper because C.F. "was nullified from all counts[.]" Appellant's brief at 5. Appellant's argument is misplaced.

{¶ 24} C.F. was the named victim in Count 2 of the indictment. Although Count 2 was amended from a second-degree felony to a first-degree misdemeanor under the parties' plea agreement, there were no amendments to the victim's name. Accordingly, the trial court's reference to C.F. during the change of plea hearing was not a misstatement.

{¶ 25} Third, appellant argues that his guilty plea was not knowingly, intelligently, and voluntarily entered because the trial court interrupted him and cut him off when he began to explain why he pled guilty rather than proceeding to trial. The colloquy to which appellant is referring occurred during the sentencing hearing, not the change of plea hearing.

{¶ 26} During the sentencing hearing, victim T.C. addressed the trial court. Thereafter, appellant challenged T.C.'s statement, referring to her as a "compulsive liar," accusing her of lying about the incident that resulted in the burglary and assault charges, and insisting that the case was "blown out of proportion." The trial court recognized that appellant's statement was completely contrary to the guilty plea that he previously entered, and inquired as to why appellant pled guilty rather than proceeding to trial. Appellant explained why he chose to enter the plea: "I didn't know who [the court] was going to believe, and people were scaring me, telling me that I would have got the max, like if I'd lost that trial I'd have got the max[.]" (Tr. 19.)

{¶ 27} This exchange between appellant and the trial court occurred after the change of plea hearing, and thus did not affect the knowing, intelligent, and voluntary nature of appellant's guilty plea. After appellant knowingly, intelligently, and voluntarily pled guilty, he did not attempt to withdraw his guilty plea before sentencing. Appellant's statements during the sentencing hearing may have been based on a change of heart, which is not an appropriate basis to withdraw an otherwise valid plea. See Moore , 8th Dist. Cuyahoga No. 102400, 2015-Ohio-4182, 2015 WL 5864786, at ¶ 10.

{¶ 28} For all of the foregoing reasons, we find that the trial court complied with Crim.R. 11 in ensuring that appellant's guilty plea was knowingly, intelligently, and voluntarily entered. During the change of plea hearing, the trial court confirmed that appellant was not under the influence of any alcohol, drugs, or medication that would affect his ability to understand the proceedings. The trial court thoroughly reviewed the constitutional rights that appellant was waiving and made sure that he understood that he was waiving these rights by pleading guilty. The trial court reviewed the nature of the charges with appellant, as well as the maximum penalty involved with each charge.

{¶ 29} After reviewing the constitutional rights that appellant was waiving, the nature of the charges, and the maximum penalties for each charge, the trial court confirmed that appellant understood the court's advisements. Appellant indicated that he understood the court's advisements.

{¶ 30} The record reflects that under the totality of the circumstances, appellant understood both the constitutional and nonconstitutional rights that he was waiving by pleading guilty. Accordingly, appellant's first assignment of error is overruled.

B. Trial Court's Sentence

{¶ 31} In his second assignment of error, appellant argues that the trial court erred by imposing a maximum sentence on his burglary conviction.

{¶ 32} This court reviews felony sentences under the standard set forth in R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may increase, reduce, or modify a sentence, or it may vacate and remand the matter for resentencing, only if we clearly and convincingly find that either the record does not support the sentencing court's statutory findings or the sentence is contrary to law. State v. Martin , 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99, 2017 WL 121774, ¶ 7. A sentence is contrary to law if the sentence falls outside the statutory range for the particular degree of offense or the trial court failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton , 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, 2015 WL 7571481, ¶ 10, citing State v. Smith , 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, 2014 WL 1408284, ¶ 13.

{¶ 33} In the instant matter, appellant argues that the trial court's maximum sentence is clearly and convincingly contrary to law because the court "considered an incorrect fact when deciding to impose the maximum sentence [.]" Appellant's brief at 8. He further contends that the maximum sentence is not supported by the record.

{¶ 34} Initially, we note that appellant references the September 30, 2015 sentencing hearing in CR-15-595152-B to support his challenge to the sentence imposed on March 17, 2016, in CR-15-599103-B. As noted above, the trial court's sentence in CR-15-595152-B is not a final appealable order, and our review in this appeal is limited to the issues pertaining to CR-15-599103-B. Accordingly, appellant's references to CR-15-595152-B are outside the scope of this appeal and will not be considered.

{¶ 35} Regarding the trial court's consideration of an "incorrect fact," appellant appears to be arguing that the trial court erred by considering a juvenile charge or adjudication of delinquency for burglary because the charge had been reduced to theft. We disagree.

{¶ 36} The trial court indicated that it received appellant's PSI and reviewed appellant's criminal history during the sentencing hearing:

I'm looking at your record that goes back from-starts in Juvenile Court as an unruly, then there's an escape, then 2010 disorderly conduct, and then another disorderly conduct, then another disorderly conduct, then a criminal trespass. Then it escalates in 2010 to aggravated burglary, intimidation of a crime victim or witness. Then it goes to receiving stolen property, then burglary again, then burglary in Juvenile Court , theft, then sales to underaged minors, and then drug possession.

(Emphasis added.) (Tr. 20.) The trial court did not specify whether appellant had been charged with or adjudicated delinquent of burglary as a juvenile-the court was simply reviewing the information in appellant's PSI when it referenced the juvenile burglary. Accordingly, the trial court did not err by considering that appellant was charged with burglary as a juvenile, even if the charge was subsequently amended.

{¶ 37} Additionally, appellant appears to argue that the trial court improperly considered that he was adjudicated unruly as a juvenile. He suggests that the trial court's consideration of his juvenile adjudications was improper because they are not criminal violations. Appellant's argument is misplaced.

{¶ 38} "Quite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one." State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, ¶ 38. Accordingly, the Ohio Supreme Court has held that it "is a violation of due process to treat a juvenile adjudication as the equivalent of an adult conviction for purposes of enhancing a penalty for a later crime." (Emphasis added.) Id. at ¶ 1.

{¶ 39} R.C. 2929.12(D) and (E), however, provide that a sentencing court shall consider whether an offender had been adjudicated a delinquent child in determining whether the offender is likely to commit future crimes. Accordingly, the trial court's consideration of appellant's juvenile adjudications at sentencing was not improper.

{¶ 40} Finally, appellant argues that the trial court neither considered nor stated on the record that it considered the sentencing factors set forth in R.C. 2929.11 and 2929.12. Appellant's argument is misplaced and unsupported by the record.

{¶ 41} R.C. 2929.11 and 2929.12 are not fact-finding statutes, and a trial court is not required to make specific findings on the record regarding its consideration of those factors nor state its reasons for imposing a maximum sentence or a particular sentence within the statutory range. State v. Seith , 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, 2016 WL 7427232, ¶ 12, citing State v. Keith , 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, 2016 WL 4141260, ¶ 11.

A trial court's imposition of a maximum prison term for a felony conviction is not contrary to law as long as the sentence is within the statutory range for the offense, and the court considers both the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12.

Seith at ¶ 12. This court has held that a trial court's statement in its sentencing journal entry that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12. State v. Paulino , 8th Dist. Cuyahoga No. 104198, 2017-Ohio-15, 2017 WL 56411, ¶ 37.

{¶ 42} In the instant matter, the trial court's sentence for appellant's third-degree felony burglary conviction is within the permissible statutory range under R.C. 2929.14(A)(3)(b). The trial court's sentencing journal entry provides, in relevant part, "the court considered all required factors of the law. The court finds that prison is consistent with the purpose of R.C. 2929.11." Aside from the trial court's notation in its sentencing entry that it "considered all required factors of the law" including, specifically, R.C. 2929.11, the record reflects that the trial court did, in fact, consider both R.C. 2929.11 and 2929.12 when sentencing appellant.

{¶ 43} As noted above, the trial court considered appellant's PSI and his criminal history. The trial court considered the seriousness of appellant's conduct, emphasizing that "I consider going into someone's home and assaulting them probably one of the most serious crimes that can occur in society." (Tr. 20.)

{¶ 44} The trial court considered the impact appellant's actions had on the victim. The state explained the injuries that victim T.C. suffered during the incident: "she was diagnosed with neck pain, upper back pain, loss of consciousness, concussion and bruising[.] * * * she was attacked by three individuals. She was taken to the ground. She was punched while on the ground." (Tr. 13.) The trial court considered that appellant committed the burglary and assault offenses less than two weeks after he pled guilty in CR-15-595152-B, and that appellant failed to appear for sentencing in that case.

{¶ 45} Appellant argues that he showed remorse for his conduct. During the sentencing hearing, appellant stated, "I would like to apologize to the courts and apologize to the victim[.]" (Tr. 17.) Defense counsel stated that appellant was "very remorseful for his conduct in this case." (Tr. 12.)

{¶ 46} Appellant's statements at the sentencing hearing, however, reflect otherwise. As noted above, appellant disputed the victim's account of the incident, accused her of lying, and asserted that the incident was "blown out of proportion." These comments demonstrated a lack of accountability and remorse, and that appellant did not recognize the seriousness of his conduct.

{¶ 47} Based on the foregoing analysis, the trial court's maximum sentence on appellant's burglary conviction is not clearly and convincingly contrary to law. The trial court considered the purposes and principles of felony sentencing under R.C. 2929.11 and the seriousness and recidivism factors listed in R.C. 2929.12, and imposed a sentence within the permissible statutory range. Furthermore, the trial court's maximum sentence is supported by the record.

{¶ 48} Appellant's second assignment of error is overruled.

III. Conclusion

{¶ 49} After thoroughly reviewing the record in CR-15-599103-B, we find that appellant's guilty plea was knowingly, intelligently, and voluntarily entered, and appellant's sentence is not contrary to law.

{¶ 50} In CR-15-595152-B, the trial court improperly imposed a single prison sentence for multiple convictions. Accordingly, we remand that matter for de novo resentencing on each drug possession count.

{¶ 51} In Cuyahoga C.P. No. CR-15-599103-B, judgment is affirmed. In Cuyahoga C.P. No. CR-15-595152-B, case is remanded.

MARY EILEEN KILBANE, P.J., CONCURS;

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY


author: BROWN, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Frederick MADDEN, Defendant-Appellant.
    No. 16AP-259
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 7, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
    On brief: April F. Campbell, for appellant.
    DECISION
   BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Frederick Madden, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which the jury returned verdicts finding him guilty of kidnapping, rape, and felonious assault.

{¶ 2} On February 13, 2015, appellant was indicted on one count of rape, in violation of R.C. 2907.02, one count of felonious assault, in violation of R.C. 2903.11, and one count of kidnapping, in violation of R.C. 2905.01. Each of the counts also carried a repeat violent offender specification.

{¶ 3} On January 30, 2015, Columbus Police Officer Kraig Gibson was dispatched to an address on Markison Avenue, Columbus, following a report of a female "who had been severely assaulted." (Tr. Vol. I at 48.) The woman told Officer Gibson that a male had forced her to the rear of a location "a few houses from where she was staying." (Tr. Vol. I at 54.) Officer Gibson "called for a squad for her to be transported to the hospital because she had bad injuries, severely bad injuries." (Tr. Vol. I at 48.) Other officers arrived and "went back and found the scene." (Tr. Vol. I at 56.)

{¶ 4} Columbus Police Officer Joshua Jarrell and his partner, Officer Sam Moore, responded to a dispatch in the early morning hours of January 30, 2015, arriving at Markison Avenue shortly after Officer Gibson. The officers walked to the back of a vacant house and found some underwear and observed blood near a concrete stoop. The officers secured the scene until police detectives arrived.

{¶ 5} A.S., a 39-year-old female, resides on the west side of Columbus; in 2014 she was homeless. In January 2015, at the time of the events at issue, A.S. was staying with two friends, Dale and Connie, who had a residence near the intersection of Parsons and Markison Avenues.

{¶ 6} In the early morning hours of January 30, 2015, A.S. was returning to Dale and Connie's house after visiting with a friend. While A.S. was walking through an alley, she encountered a male who asked if she was working. A.S. testified that "[h]e questioned me and I said, 'I'm not working.' " A.S. related that she "kept walking and he grabbed me by my hair and punched me in my face." (Tr. Vol. I at 119.) The man dragged A.S. by her hair to the backyard of an abandoned house; during this time, he also punched her on the back of her head, the back of her ribs, and kicked her in the legs. A.S. was familiar with the abandoned house because she had previously slept at that location while homeless. Once in the backyard, A.S. testified that "[t]he beating got worse, * * * the blows, the kicks, the punching in my head and my face." (Tr. Vol. I at 132.)

{¶ 7} The man told A.S. that he had a gun. A.S. testified that the man "ripped my clothes off, threw it. Threw my pants, threw them. And my shoes, he threw them. Even my underwear with a maxi pad." (Tr. Vol. I at 132-33.) The man "[s]aid, 'Bitch, shut the fuck up.' " A.S. "told him [she] was cold." She "started to cry and * * * said, 'Please don't do this. I have kids.' " The man "said, 'Bitch, shut the fuck up,' again anytime I spoke." A.S. stated that her "whole face was hitting the concrete where it was ice and snow. And then he would punch me in my ribs and hit me in the back of the head again." (Tr. Vol. I at 133.) A.S. testified that the man then raped her "from behind." After "he was finished," he "kicked [her] and also spat on [her], told [her] to count to a hundred." (Tr. Vol. I at 134.) The man told her if she got up he would shoot her.

{¶ 8} After the assailant left the scene, A.S. walked toward Parsons Avenue looking for a police officer. She was bleeding, and walked to the residence of her friends Dale and Connie. When she arrived, Connie "start[ed] to cry and sa[id], 'Oh, my God, what happened?' And Dale said, 'What happened?' " (Tr. Vol. I at 136.) They walked to a nearby fire station but were unable to locate anyone, so Dale called 911.

{¶ 9} A police officer arrived and asked A.S. if "I could take him to where this happened to me and I said yes." Connie and Dale also walked with A.S. and the officer, "and they started to see the blood trail." (Tr. Vol. I at 139.) A.S. testified that her assailant did not use a condom. When asked how a condom could have been found in the area, A.S. stated that other females "use that place back there." (Tr. Vol. I at 151.) A.S. further testified that she and the father of one of her children previously engaged in sexual activity at that location, and that they would use condoms.

{¶ 10} A.S. testified that she was wearing a "maxi pad" that evening, and that her assailant used the maxi pad "to wipe himself off with." (Tr. Vol. I at 152.) Specifically, after the man told her to remain on her stomach and count to one hundred, A.S. "watched him wipe the blood away; so I watched him pick up my underwear and use them to wipe himself off with the maxi pad." (Tr. Vol. I at 156.) Police officers found the maxi pad near the scene.

{¶ 11} A.S. was transported to Grant Hospital for a rape kit examination and treatment for her injuries. Her jaw was fractured in "three places," requiring surgery, and she remained in the hospital for more than a week. (Tr. Vol. I at 140.) Police detectives subsequently interviewed A.S. and showed her a photographic array. She was unable to identify her assailant from the array. At trial, A.S. identified appellant as "[t]he guy that raped me." (Tr. Vol. I at 158.)

{¶ 12} On cross-examination, A.S. stated she did not recall telling a police detective that her assailant was carrying a black semi-automatic handgun, or that he struck her with the weapon. A.S. testified that the man was dressed in black and wearing a hoodie.

{¶ 13} Columbus Police Detective Tim Hedrick is assigned to the department's sexual assault unit. Following the incident, Detective Hedrick and his partner were dispatched to Grant Hospital to speak with A.S. Detective Hedrick testified that the woman "had been beaten, face was bloodied. She was very upset, crying [and she] could barely open her mouth to speak." (Tr. Vol. I at 231.)

{¶ 14} After leaving the hospital, the detectives drove to Markison Avenue and "were able to find the yard that she was talking about," located in the backyard of a vacant house. (Tr. Vol. I at 234.) Detective Hedrick took photographs of the scene, and noted there was blood on the "cement stoop." (Tr. Vol. I at 240.) Detectives collected a maxi pad from the stoop, and they also found a condom in the area.

{¶ 15} Detective Hedrick testified that appellant became a suspect in the case and detectives subsequently interviewed him and obtained buccal swabs from him. At trial, Detective Hedrick identified state's exhibit G as an array of six photographs prepared as part of the investigation. When shown the array by detectives, A.S. did not definitively identify any individuals. On cross-examination, Detective Hedrick testified that A.S. indicated her assailant struck her with a pistol during the incident.

{¶ 16} Carrie Jackson, a registered nurse, is coordinator of the sexual assault program at Grant Medical Center. On January 30, 2015, Jackson performed an examination of A.S. at Grant Hospital. A.S. informed Jackson that her assailant was a black male "unknown to her, stranger." (Tr. Vol. II at 36.) A.S. stated that he penetrated her vagina and ejaculated. During the interview, A.S. related that the man had a weapon. When asked by the nurse if her assailant used a condom, A.S. initially told the nurse that the man did have a condom; later, however, when asked to recount the events, A.S. stated that no condom was used.

{¶ 17} Regarding the incident, A.S. informed Jackson that she was "walking from my girl's house and I was cutting through the alley so nobody would see me and think I was a working girl. When I got to Parsons and Welch and I was about to cut through the alley, that's when I saw him." (Tr. Vol. II at 42.) A.S. related that her assailant was "standing by the funeral home and yelled after me and asked, 'What are you doing out here, are you working.' I told him, no, I wasn't and to leave me alone." A.S. stated she "went into the alley and then I heard what sounded like sprinting and he was behind me. He grabbed me by my hair and my sweatshirt and dragged me behind this house. He was whaling on me." (Tr. Vol. II at 43.) A.S. further stated: "He hit me all up and down my back. He hit me in the face and head. I was kind of foggy from being hit so hard." (Tr. Vol. II at 43-44.) A.S. told the nurse that the man then ripped off her coat, pants, and shoes. A.S. further related: "He ripped my bra in half. He jerked me by my legs from behind so I would be on my knees and he raped me doggy style (clarifies rape as his penis into her vagina). He came in me, no condom. He pulled out and tried to wipe it off." (Tr. Vol. II at 44.)

{¶ 18} At trial, Jackson identified photographs taken of A.S. at the time of the examination. Jackson noted injuries to A.S.'s face and mouth, including redness, swelling and bruising, as well as swelling to her hand and redness to both legs.

{¶ 19} Logan Schepeler, a forensic scientist with the Ohio Bureau of Criminal Investigation ("BCI"), tested the rape kit that the Columbus Police Department submitted to BCI as part of the investigation. According to Schepeler, "semen was identified from the vaginal and perianal samples from the rape kit." (Tr. Vol. II at 100.) A single sperm cell was also collected from the underwear of A.S., and semen was obtained from a condom collected at the scene.

{¶ 20} Devonie Herdeman, a forensic scientist with BCI, performed DNA analysis with respect to samples submitted from A.S. and appellant. Herdeman testified that the BCI laboratory "tested the vaginal and perianal samples and those were found to be a mixture of [A.S.] as well as Frederick Madden." (Tr. Vol. II at 142.) Testing performed on a condom found at the scene revealed a mixture for A.S. and an unknown male.

{¶ 21} Following deliberations, the jury returned verdicts finding appellant guilty of rape, felonious assault, and kidnapping. The trial court made a separate finding of guilt with respect to the repeat violent offender specification. By entry filed March 17, 2016, the trial court sentenced appellant to a total of 39 years incarceration, and the court adjudicated him a Tier III sex offender.

{¶ 22} On appeal, appellant sets forth the following three assignments of error for this court's review:

I. The prosecutor denied Madden his right to a fair trial and an impartial jury, by asserting that the only eyewitness to the events Madden was being prosecuted for, was "credible," "believable," and "reliable," and by inundating the jury with references to her as the "victim" during trial.
II. Madden's convictions should be reversed because Appellant's trial counsel was deficient at trial, with resulting prejudice.
III. Prosecutorial misconduct through vouching and saturating the trial with references to his key witness as the "victim," linked with defense counsel's ineffective performance, resulted in cumulative error.

{¶ 23} Under the first assignment of error, appellant argues the prosecutor engaged in misconduct by improperly referring to the state's primary witness as a "victim" throughout the trial. Appellant also contends the prosecutor improperly vouched for the credibility of that witness during opening statement.

{¶ 24} In reviewing allegations of prosecutorial misconduct, "the test for appellate courts is whether the prosecutor's conduct was improper, and if so, whether that conduct prejudicially affected the substantial rights of the accused." State v. McDowell , 10th Dist. No. 10AP-509, 2011-Ohio-6815, 2011 WL 6930332, ¶ 33. A claim of prosecutorial misconduct "will not be grounds for reversal unless the defendant has been denied a fair trial." Id. A reviewing court considers allegations of prosecutorial misconduct "in the context of the entire trial." State v. Muhleka , 2d Dist. No. 19827, 2004-Ohio-1822, 2004 WL 759249, ¶ 84. Further, "[w]here it is clear beyond a reasonable doubt that a jury would have found the defendant guilty even absent the alleged misconduct, the defendant has not been prejudiced, and the conviction will not be reversed." Id.

{¶ 25} At the outset, we note that defense counsel did not object to any of the comments claimed by appellant to be improper. Accordingly, appellant has "waived any error on that issue on appeal except for plain error." McDowell at ¶ 34. In order "to be 'plain' within the meaning of Crim.R. 52(B) an error must: (1) be a deviation from a legal rule; (2) be plain or obvious, i.e., an obvious defect in the trial proceedings; and (3) have affected a substantial right in that it affected the outcome of the trial." Id.

{¶ 26} Appellant first contends the prosecutor engaged in misconduct by consistently referring to A.S. as the "victim." Appellant cites to various pages of the trial transcript in which a reference to victim is made.

{¶ 27} A review of the record indicates that the majority of the references to "victim" cited by appellant were not made by the prosecutor but, rather, by law enforcement officers testifying about the investigation. Specifically, the references at issue occurred during the testimonies of Officers Gibson, Christopher Hostettler, and Detective Hedrick. By way of example, Officer Gibson testified that he responded to the scene in which "a female * * * had been severely assaulted. We responded to that scene and made contact with the caller and the female victim at that time." (Tr. Vol. I at 48.) Similarly, Officer Hostettler testified that he responded to the scene and spoke with a "male and to the victim." (Tr. Vol. I at 90.) Detective Hedrick, when discussing in general how he becomes involved in an investigation, testified that "[a] lot of times victims will go to the hospital on their own and we will respond directly to the hospital." (Tr. Vol. II at 217-18.)

{¶ 28} A review of the record indicates that, in context, the law enforcement officers in most of the instances were referring to the "victim" as a complainant. We also note there was no dispute that the individual at issue, A.S., had suffered physical harm, including a broken jaw, as a result of the incident. As noted by plaintiff-appellee, the State of Ohio, defense counsel acknowledged this fact during opening statement, stating to the jury that A.S. was taken to Grant Hospital on the morning of January 30, 2015. Defense counsel further stated: "She was beat up. There's no question about it. We're going to agree and stipulate her physical and medical evidence." (Tr. Vol. I at 39.)

{¶ 29} While the majority of the references to "victim" were made by law enforcement personnel, we note several instances in which the prosecutor utilized the term "victim." For instance, in questioning Detective Hedrick about his general investigative procedures, the prosecutor inquired: "So is that what you do, you go and interview the victim for the first time?" (Tr. Vol. I at 219.) The prosecutor further inquired: "Do you often then end up interviewing the victim for a second time at some point in your investigation?" (Tr. Vol. I at 220.)

{¶ 30} This court has noted that "[a] 'victim' is a 'person harmed by a crime, tort, or other wrong.' " State v. Morock, 10th Dist. No. 14AP-559, 2015-Ohio-3152, 2015 WL 4660026, ¶ 25, citing Black's Law Dictionary (10th Ed.2014). Similarly, it has been held that use of the term " 'victim' is not the same as expressing an opinion that the defendant was guilty of a crime; the term 'victim applies to anyone who suffers either as a result of ruthless design or incidentally or accidentally.' " State v. Chism , 130 Wash.App. 1054, Wash.App. No. 54895-6-I, 2005 WL 3529123 (Dec. 27, 2005), quoting Webster's Third New International Dictionary 2550 (1993).

{¶ 31} Courts in other jurisdictions have held that "[t]he term 'victim' is used appropriately during trial when there is no doubt that a crime was committed and simply the identity of the perpetrator is in issue." Jackson v. State , 600 A.2d 21, 24 (Del.1991). See also In re Welfare of P.J.K. , Minn.App. No. A15-0115, 2015 WL 5199642 (Sept. 8, 2015) (where issue at trial was not whether an armed robbery actually occurred but, rather, whether the state could prove beyond a reasonable doubt who committed it, occasional reference to individual as "victim" was "accurate and not prejudicial").

{¶ 32} As noted above, most of the references to "victim" in the present case are in the context of law enforcement officers recounting their role in the investigation. Courts have observed that "the term 'victim,' to law enforcement officers, is a term of art synonymous with 'complaining witness.' " Jackson at 24-25. Thus, courts have found a lack of prejudice where a law enforcement officer uses the term "victim" in such a manner. See State v. Frey , Iowa App. No. 7-205/06-1081, 2007 WL 1827423 (June 27, 2007) (defense counsel not ineffective in failing to object to use of the term victim where detective "used the term 'victim' as synonymous with the term 'complainant' "); see also State v. Wigg , 179 Vt. 65, 70, 889 A.2d 233 (2005) (finding harmless error where a law enforcement officer uses the term victim as synonymous with complainant and "never expressed an opinion" that the defendant was guilty); State v. Harvey , 167 Wash.App. 1026, Wash.App. No. 29513-3-III, 2012 WL 1071234 (Mar. 29, 2012) (questions by prosecutor that elicited police officers to refer to individuals shot as "victims" not improper; "referring to the men who died from gunshot wounds as victims does not amount to opinion testimony").

{¶ 33} Appellant relies on this court's decision in State v. Almedom , 10th Dist. No. 15AP-852, 2016-Ohio-1553, 2016 WL 1461839, in support of his contention that reversible error occurred. That case, however, is distinguishable from the facts of this case. At issue in Almedom was whether a crime took place, i.e., whether the defendant had sexual conduct with girls under the age of 13. Further, under the facts of Almedom, "the trial court judge consistently referred to the girls as 'victims,' " which this court deemed analogous to "telling the members of the jury that the girls were truthful when they claimed that sexual abuse occurred." Id. at ¶ 2. By contrast, in the present case there was no dispute that A.S. was physically assaulted and seriously injured, and the record contains no victim references by the trial court.

{¶ 34} Here, where the fact of an assault was not in dispute, and where the witnesses used the term "victim" as synonymous with complainant and did not express an opinion as to appellant's guilt, the record does not show plain error as a result of the references to "victim" during the testimony of law enforcement officers. See , e.g. , Jackson at 24-25, ; Wigg at 70, 889 A.2d 233. Nor is there any indication from the record that the prosecutor intentionally sought to elicit prejudicial testimony from the witnesses at issue. Similarly, the several isolated instances in which the prosecutor referenced the term "victim," in context, did not infer that appellant committed a crime against A.S. but, rather, reflected the undisputed fact that A.S. suffered a harm. See Morock at ¶ 25. See also Agee v. State , 544 N.E.2d 157, 159 (Ind.1989) ("it cannot be said that the use of the word 'victim' by the prosecutor on several occasions was done vindictively but was only an inadvertent manner of speaking as might be done to characterize any person who had experienced a mishap").

{¶ 35} Appellant also contends the prosecutor improperly vouched for the credibility of A.S. during opening statement. Specifically, at issue are the following comments by the prosecutor:

And what you're going to hear is that a woman named [A.S.]-you'll meet her tomorrow-she was walking I'm going to call it home late at night. I'm using the word "home" loosely because she's not a person who always has a home. She sleeps where she can. She stays with people when she can. She's not as stable as we all fortunately are lucky enough to be. But she's going to be reliable. She's going to be credible. She's going to be believable.

(Tr. Vol. I at 35.)

{¶ 36} In response, the state argues that the prosecutor was not suggesting the jury should convict appellant because of the prosecutor's belief that A.S. was credible; rather, the state maintains, the prosecutor was simply stating that the evidence would prove A.S. to be a credible witness. Of significance, the state contends, was the fact the prosecutor framed the comments in the future tense, i.e., A.S. "is going to be" reliable, credible, and believable.

{¶ 37} Under Ohio law, "[i]t is improper for an attorney to express a personal belief or opinion as to the credibility of a witness." State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 117. However, "[a] prosecutor's statement on witness credibility is not an improper voucher where it neither implies knowledge of facts outside the record nor places the prosecutor's personal credibility at issue."

State v. Miller, 4th Dist. No. 06CA11, 2007-Ohio-427, 2007 WL 293024, ¶ 24, citing State v. Keene , 81 Ohio St.3d 646, 666, 693 N.E.2d 246 (1998).

{¶ 38} On review, we do not construe the prosecutor's statements during opening as expressing his own opinion as to the credibility of the witness or implying knowledge of facts outside the record. As noted by the state, the phrasing employed, i.e., "going to be" reliable, etc., arguably indicates the prosecutor was anticipating, based on the evidence to be presented, that the witness would prove to be credible.

{¶ 39} Even accepting the comments to be improper, however, we are unable to conclude that the comments at issue affected the outcome of the trial. Here, considering the record as a whole, the comments were isolated, and the trial court instructed the jury that they "must not consider as evidence any statement of any attorney made during the trial." (Tr. Vol. I at 30.) The trial court also informed the jurors: "[Y]ou have the sole and exclusive duty to decide the credibility of witnesses. This means that it is you who must decide whether to believe or disbelieve particular witnesses." (Tr. Vol. I at 31.) Finally, the trial court instructed the jury that "opening statements are not evidence." (Tr. Vol. I at 33.)

{¶ 40} Finding no plain error affecting appellant's substantial rights, the first assignment of error is not well-taken and is overruled.

{¶ 41} Under his second assignment of error, appellant raises a claim of ineffective assistance of counsel. Specifically, appellant contends his trial counsel was ineffective in failing to object to comments by the prosecutor during opening statement vouching for the complaining witness, and in failing to object to the prosecutor's repeated references to that witness as a victim. Appellant also argues deficient performance by trial counsel in failing to object to the introduction of hearsay testimony of the state's complaining witness, and to the prosecutor's introduction of inflammatory testimony as to why A.S. left the courtroom during the middle of her testimony.

{¶ 42} Under Ohio law, performance of trial counsel will not be deemed ineffective unless and until such performance "is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Further, in order to show a defendant has been prejudiced by his or her counsel's deficient performance, "the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." Id. at paragraph three of the syllabus.

{¶ 43} Appellant's first two claimed instances of ineffective assistance of counsel (i.e., trial counsel's failure to object to the prosecutor's remarks during opening statement, and the failure to object to references to the term "victim" during the testimony of law enforcement officers) implicate issues previously addressed under the first assignment of error in considering appellant's claims of prosecutorial misconduct. Having found that the prosecutor did not improperly vouch for the witness during opening statement or that such comments affected the outcome of the trial, appellant cannot demonstrate ineffective assistance of counsel based on trial counsel's failure to object to those remarks.

{¶ 44} Similarly, in addressing appellant's claim of prosecutorial misconduct with respect to references at trial to the complaining witness as a "victim," we found no plain error. As noted, the majority of the references were in the context of law enforcement officers referring to the complainant as a victim, and the evidence was undisputed that A.S. suffered physical injury as a result of the incident. Under these circumstances, counsel's failure to object did not constitute deficient performance. See Morock at ¶ 25 (where evidence showed individual suffered a wrong, trial counsel was not ineffective in failing to challenge use of word "victim" by prosecutor and witness).

{¶ 45} Appellant also claims that his trial counsel was ineffective in failing to object to inadmissible hearsay evidence; specifically, purported statements of A.S. made during the testimony of Officer Gibson, the first officer dispatched to the scene. Appellant argues that the prosecutor adduced testimony from the officer describing the substance of A.S.'s allegations, i.e., that a male had forced her to the back of an unknown location, hit her several times, and raped her. Appellant contends the statements were inadmissible hearsay because the officer was testifying to out-of-court statements made by the complaining witness to prove the truth of the matter asserted.

{¶ 46} In response, the state argues the officer's testimony was not offered to prove that A.S.'s out-of-court statements were true but, rather, to explain the officer's conduct in looking for evidence at the abandoned house and to reveal how the sexual assault squad became involved in the investigation. The state further argues that, had an objection been made, the state likely would have been able to establish the necessary foundation to admit the statements as excited utterances of a rape victim.

{¶ 47} This court has previously noted that, to the extent a victim's statements are offered to explain the conduct of an officer, such statements are "not admitted for the truth of what the victim stated and are admissible." State v. Albert, 10th Dist. No. 06AP-439, 2006-Ohio-6902, 2006 WL 3775879, ¶ 60. See also State v. F.R. , 10th Dist., 2015-Ohio-1914, 34 N.E.3d 498, ¶ 34 ("Generally, a police officer is permitted to testify as to the underlying reasons for his conduct in investigating a crime, and such statements are, by definition, not hearsay."). Further, as noted by the state, the officer testified that A.S. was "visibly shaken * * * crying, blood on her face" at the time. (Tr. Vol. I at 52.) Arguably, based on the record presented, it is not clear that the trial court would have sustained an objection to the testimony at issue. See , e.g. , State v. Nixon, 12th Dist. No. CA2011-11-116, 2012-Ohio-1292, 2012 WL 1032891, ¶ 14 (where evidence indicated declarant "was shaken and scared" when she spoke with officer shortly after officer arrived at scene, oral statement made to officer was properly admissible as an excited utterance); State v. Johnson, 8th Dist. No. 81692, 2003-Ohio-3241, 2003 WL 21419631, ¶ 31 (finding that "both victims' statements were excited utterances" where officers testified that these individuals were "visibly shaken and frightened" when police arrived).

{¶ 48} Even assuming, however, that the trial court may have sustained objections to the statements, appellant cannot demonstrate prejudice, i.e., that the outcome of the trial would have been different. It has been noted that "hearsay is generally inadmissible because the declarant is not testifying in court and the factfinder is unable to observe the declarant and decide whether the declarant's statement is worthy of belief." State v. Warren, 8th Dist. No. 83823, 2004-Ohio-5599, 2004 WL 2365906, ¶ 44. In the instant case, both the officer and declarant, A.S., testified at trial and A.S. was subject to cross-examination. See Cleveland v. Arnold , 8th Dist. No. 98693, 2013-Ohio-1791, 2013 WL 1859009, ¶ 20 (holding that, even had defense counsel objected to officer's testimony as to what he learned through interview of witness, outcome of trial would not have been different where same evidence defendant claims of as being improper hearsay evidence was admitted properly through the actual declarants at trial). See also State v. Bartolomeo, 10th Dist. No. 08AP-969, 2009-Ohio-3086, 2009 WL 1819507, ¶ 17 (appellant failed to demonstrate plain error regarding admission of alleged hearsay testimony where declarant testified at trial "and her testimony, which during direct examination was to the same effect as the officer's statements, was subject to cross-examination").

{¶ 49} Appellant also contends his trial counsel was ineffective in failing to object to the prosecutor's inquiry of A.S. as to why she abruptly left the courtroom during her testimony. Appellant argues that the response by A.S. was irrelevant and inflammatory.

{¶ 50} By way of background, during the direct testimony of A.S., the record indicates that A.S. addressed appellant and stated: "Can you please quit staring at me." The trial court immediately interjected and called for a five-minute recess. A.S. responded: "Please. I'm going to be sick." The transcript reflects that A.S. "[ran] out of the courtroom." (Tr. Vol. I at 110.) After A.S. returned to the courtroom, but outside the presence of the jury, the trial court instructed the witness to not focus on appellant but, instead, to focus on counsel and the questions being asked.

{¶ 51} The jury then returned to the courtroom and the prosecutor resumed the direct examination of A.S. The prosecutor initially asked A.S. if she was "[f]eeling better," and A.S. responded "[a] little bit." In response to a further inquiry by the prosecutor, A.S. related that she had run to the bathroom, and that she "[t]hrew up." (Tr. Vol. I at 114.)

{¶ 52} Appellant contends defense counsel should have objected at the onset of the prosecutor's inquiry, or should have moved to limit such questioning before A.S. took the stand. Appellant maintains that, having failed to do either, the jury was permitted to hear emotionally charged testimony.

{¶ 53} On review, we do not find that counsel acted unreasonably in failing to object to the inquiry by the prosecutor. As noted, the trial court immediately called a recess to allow the witness to leave the room and compose herself, and the court admonished the witness, upon returning to the courtroom, to focus on the questions of counsel. Defense counsel may have deemed the actions by the trial court adequate under the circumstances, and counsel may have made a tactical decision not to object to the response of A.S. to avoid drawing further attention to the remark. We also note that the trial court instructed the jury that their decision "must not be influenced * * * by sympathy, prejudice, or passion towards any party, witness or attorney in this case." (Tr. Vol. I at 30.) See , e.g. , State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996) (noting, in finding no evidence that emotional outburst by victim's mother deprived defendant of fair trial, that trial court "instructed the jury not to be influenced by sympathy or prejudice").

{¶ 54} Moreover, the record fails to suggest the brief exchange had any effect on the verdict. See , e.g. , State v. Greer, 8th Dist. No. 91983, 2009-Ohio-4228, 2009 WL 2574160, ¶ 84 (defense counsel not ineffective in failing to request mistrial following emotional outburst where "no indication that the result of the trial would have been different had the jury not heard [decedent's grandmother's] outburst"). Accordingly, having failed to demonstrate deficient performance, or a reasonable probability that the outcome of the trial would have been different had counsel objected, appellant cannot prevail as to his claim of ineffective assistance of counsel.

{¶ 55} Appellant's second assignment of error is overruled.

{¶ 56} Under his third assignment of error, appellant contends that cumulative error resulted in an unfair trial. Specifically, appellant argues that prosecutorial misconduct through vouching and saturating the trial with references to "victim," along with defense counsel's ineffective performance, resulted in cumulative error. We disagree.

{¶ 57} Pursuant to the doctrine of cumulative error, "a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of the errors does not individually constitute cause for reversal." State v. Pyles , 7th Dist. No. 13 MA 22, 2015-Ohio-5594, 2015 WL 9693891, ¶ 103, citing State v. Garner , 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). However, the cumulative error doctrine "does not apply to cases that are not marked by multiple instances of harmless error." State v. Banks, 10th Dist. No. 03AP-1286, 2005-Ohio-1943, 2005 WL 949014, ¶ 23, citing Garner.

{¶ 58} We have previously found no plain error as a result of the prosecutor's comments during opening statement or to "victim" references made at trial. Nor did we find deficient performance or prejudice resulting from defense counsel's failure to object to the testimony of Officer Gibson, or to the prosecutor's inquiry as to why A.S. abruptly left the courtroom. Having found "no prejudicial error and no justification for the invoking of plain error," there can be "no cumulative effect of errors that would warrant a conclusion that defendant was denied a fair trial." State v. Blackmon, 10th Dist. No. 94APA05-773, 1995 WL 68166 (Feb. 14, 1995).

{¶ 59} Appellant's third assignment of error is not well-taken and is overruled.

{¶ 60} Based on the foregoing, appellant's three assignments are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

BRUNNER and HORTON, JJ., concur.


author: ANITA LASTER MAYS, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Demetrius H. CARTER, Defendant-Appellant
    No. 104874
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Jeffrey Schnatter, Glen Ramdhan, Assistant County Prosecutors, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Laster Mays, J., Kilbane, P.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant, Demetrius H. Carter ("Carter"), appeals his guilty verdict and sentence, and asks this court to reverse his conviction and remand to the trial court for a new trial. After a review of the record, we reverse and remand.

{¶ 2} Carter was found guilty of one count of rape, a first-degree felony in violation of R.C. 2907.02(A)(2) ; three counts of kidnapping, first-degree felonies in violation of R.C. 2905.01(A)(4) ; and two counts of gross sexual imposition, fourth-degree felonies in violation of R.C. 2907.05(A)(1). He was sentenced to a total of eight years imprisonment and required to register as a tier three sex offender.

I. Facts

{¶ 3} B.C., the daughter of Carter, accused Carter of kidnapping, rape, and forcing her to have unwanted sexual conduct with him. B.C. testified that her father, Carter, began making sexual advances towards her when she was in the seventh grade. B.C. recalled one moment when she and Carter were lying next to each other watching movies. Carter told B.C. that he was cold and requested that she move closer to him. When B.C. moved closer to him, she felt Carter's pelvis poking her. Carter continued to push his pelvis closer to B.C., and his actions made B.C. feel confused and as if she could not get up and walk away.

{¶ 4} Once Carter moved out of the family home, as a result of divorce from B.C.'s mother, B.C. would see Carter at his sister's house. One occasion when B.C. was visiting Carter at Carter's sister's house, B.C. awoke to Carter hugging her around the waist. Carter also began pushing his pelvis against B.C. and groping her chest. Then Carter used his hand to rub B.C.'s vagina. B.C. testified that Carter rubbed the inside and outside of her vagina with his fingers. B.C. felt as if she could not get up and walk away from Carter.

{¶ 5} Another incident took place at Carter's sister's new home where B.C. and Carter were sleeping on the floor. B.C. awoke to Carter rubbing her breasts. Carter then told B.C. that he loved her. The next morning Carter told B.C. that they needed to stop having sexual contact, but he continued. B.C. did not feel as if she could get away from Carter while he was touching her.

{¶ 6} B.C. also visited Carter at Carter's father's home. During a visit, B.C. woke to Carter holding her around the waist while pushing his pelvis against her. B.C. tried to move away from him, but Carter pulled her closer. Carter began groping B.C.'s breast and then pulled her pants down. Carter got out of the bed, and B.C. heard him open a plastic wrapper. Carter then came back to the bed and laid down behind B.C. B.C. felt Carter touch her vagina both inside and out, but was unsure of what he was touching her with.

{¶ 7} B.C. sent her mother, S.C., a text message detailing the events of Carter touching her. S.C. went to the police, and B.C. was first interviewed by Lauren Hennessey ("Hennessey"), a social service worker with the Department of Children and Family Services. During her testimony, the state asked her, "When you met with [the victim], what types of information is it important for you to learn for you to make the referrals that you are tasked with making?" (Tr. 323.) Hennessey responded by stating, "So we make referrals typically, you know, when there's credible, consistent disclosures, which hers was. And, you know, she was seeking-the family was seeking medical-not medical, mental health treatment as well because of what had happened." (Tr. 323.)

{¶ 8} B.C.'s case was referred to Julie Loyke ("Loyke"), a certified pediatric nurse practitioner who performs non-acute sexual abuse examinations for the Cleveland Care Clinic. Loyke testified as to her experiences practicing as a Sexual Assault Nurse Examiner ("SANE"). Loyke described her conversation with B.C., and the procedures used to interview and examine B.C.

{¶ 9} At the end of the trial, Carter was found guilty and sentenced to eight in prison. Carter filed this timely appeal arguing six assignments of error for our review, however, assignment of error three is dispositive of the case, so we need not address the other five. App.R. 12.

I. The state failed to present sufficient evidence of the offenses charged;
II. The appellant's convictions are against the manifest weight of the evidence;
III. The trial court erred in allowing the state's witness to opine regarding the appellant's guilt, in violation of the Ohio Rules of Evidence, the right to a fair trial, and the Due Process Clause of the Fourteenth Amendment of the United States Constitution;
IV. Appellant was denied due process and a fair and impartial trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article 1, Section 16 of the Ohio Constitution based on prosecutorial misconduct;
V. The appellant was denied effective assistance of counsel in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution ; and
VI. The trial court erred in allowing the admission of the accuser's text message allegation which was offered for the sole purpose of demonstrating a prior consistent message without first showing recent fabrication, and which denied the appellant due process and the right to a fair trial.

III. Prejudicial Testimony

A. Standard of Review

{¶ 10} "It is well established that, pursuant to Evid.R. 104, the introduction of evidence at trial falls within the sound discretion of the trial court." Caruso v. Leneghan , 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, 2014 WL 1775577, ¶ 32, quoting State v. Heinish , 50 Ohio St.3d 231, 553 N.E.2d 1026 (1990).

Further, Evid.R. 702, which controls the admission of expert testimony during the course of trial, provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The determination of whether a witness possesses the qualifications necessary to allow expert testimony lies within the sound discretion of the trial court. In addition, the qualification of an expert witness will not be reversed unless there is a clear showing of an abuse of discretion on the part of the trial court.

Id. at ¶ 34 quoting State v. Maupin , 42 Ohio St.2d 473, 330 N.E.2d 708 (1975) ; State v. Minor , 47 Ohio App.3d 22, 546 N.E.2d 1343 (10th Dist.1988).

{¶ 11} In addition,

[T]he decision whether to admit or to exclude evidence rests within the sound discretion of the trial court. State v. Brown , 8th Dist. Cuyahoga No. 99024, 2013-Ohio-3134 [2013 WL 3808558], ¶ 50, citing State v. Jacks , 63 Ohio App.3d 200, 207, 578 N.E.2d 512 (8th Dist.1989). Therefore, an appellate court that reviews the trial court's decision with respect to the admission or exclusion of evidence must limit its review to a determination of whether the trial court committed an abuse of discretion. Id. , citing State v. Finnerty , 45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion requires a finding that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Minifee , 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146 [2013 WL 3808869], ¶ 23, citing Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).

State v. Marshall , 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, 2015 WL 3899064, ¶ 16.

B. Law and Analysis

{¶ 12} Carter argues that the trial court erred in allowing the state's witnesses to opine regarding the appellant's guilt, in violation of the Ohio rules of evidence, violation of the right to a fair trial, and in violation of the due process clause of the Fourteenth Amendment of the United States Constitution. Specifically, Carter argues that the testimony of Hennessey and Loyke regarding B.C.'s accusations being credible and consistent disclosures amounted to prejudicial and impermissible testimony. "The admission or exclusion of evidence rests within the sound discretion of the trial court." Caruso v. Leneghan , 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, 2014 WL 1775577, ¶ 33, quoting State v. Jacks , 63 Ohio App.3d 200, 207, 578 N.E.2d 512 (1989).

Further, Evid.R. 702, which controls the admission of expert testimony during the course of trial, provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The determination of whether a witness possesses the qualifications necessary to allow expert testimony lies within the sound discretion of the trial court. In addition, the qualification of an expert witness will not be reversed unless there is a clear showing of an abuse of discretion on the part of the trial court. State v. Maupin , 42 Ohio St.2d 473, 330 N.E.2d 708 (1975) ; State v. Minor , 47 Ohio App.3d 22, 546 N.E.2d 1343 (10th Dist.1988).

Id. at ¶ 34.

{¶ 13} Hennessey was asked by the state, "what types of information is it important for you to learn for you to make the referrals that you are tasked with making?" (Tr. 323.) Hennessey responded,

[S]o we make referrals typically, you know, when there's credible, consistent disclosures, which hers was. And, you know, she was seeking-the family was seeking medical-not medical, mental health treatment as well because of what had happened.

Carter argues that the testimony bolsters the allegations. We disagree.

{¶ 14} It is clear that the state did not ask Hennessey what her opinion was regarding the veracity of B.C. Rather, the record shows that the state asked Hennessey, as a professional, what is important for her to learn from an individual to make necessary referrals?

An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant. State v. Boston , 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989). However, an expert may provide testimony that supports "the truth of the facts testified to by the child, or which assists the fact finder in assessing the child's veracity." State v. Stowers , 81 Ohio St.3d 260, 262-263, 690 N.E.2d 881 (1998).

State v. Ervin , 8th Dist. Cuyahoga No. 80473, 2002-Ohio-4093, 2002 WL 1824977, ¶ 34. We find that Hennessey's testimony was admissible under Evid.R. 703.

{¶ 15} Additionally, Hennessey testified that her interview began with her getting to know B.C. and information about B.C.'s family. After Hennessey learned of the disclosures, it allowed her to make referrals.

State: During the course of the interview, did you learn the information that you required to determine what referrals you needed to make for B.C.?
Hennessey: Yes. Based on the interview, she was referred to the Cleveland Care Clinic.
State: What is the Cleveland Care Clinic?
Hennessey: It's where she can go and get a medical assessment, like a physical exam, and then also another interview with the professional. They're trained as well.
State: Is the Care Clinic focused on a particular area of medical?
Hennessey: They do. They focus on sexual assault, sexual abuse cases.
State: That referral was based on your interview of B.C.?
Hennessey: Yes, based on the information she shared with me.
State: Where is the Care Clinic run through?
Hennessey: The Cleveland Clinic, the main campus, substance abuse.
State: Did you make any other referrals?
Hennessey: The family was referred to Cleveland Rape Crisis as well.

(Tr. 324-325.)

{¶ 16} Permissible testimony for purposes of medical diagnosis or treatment fall under Evid.R. 803(4). It states,

[S]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Pursuant to Ohio case law and Evid.R. 803(4), statements made by a social worker for the purposes of medical diagnosis or treatment are admissible. State v. Boston , 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), citing State v. Krzywkowski , 8th Dist. Cuyahoga No. 80392, 2002-Ohio-4438, 2002 WL 1987257, ¶ 120. Hennessey's role was important in determining what type of subsequent treatment was necessary for B.C. We find that Hennessey's role was pertinent to medical treatment or diagnosis, and thus her testimony falls clearly within the exception to the hearsay rule under Evid.R. 803(4). Id. at ¶ 123.

{¶ 17} The state asked Loyke,

[T]hrough that specialized training and through that years of experience in all of those patients, have you learned things about sexual assault, child sexual assault victims in particular that you would not have suspected prior to your experience and training?

(Tr. 354.) Loyke responded,

I would have to say yes, that I have been part of the process of every individual child that presents with sexual assault has a story to tell and has a different story to tell. There is no way that we could systemically categorize every situation that we would see. It is important that they tell their story and it's important that we believe them.

Id.

{¶ 18} Carter argues that Loyke's statement about the importance of believing a child who tells their sexual assault story was prejudicial and significantly impacted his trial. We agree. The SANE nurse was asked whether she made any recommendations in B.C.'s case. In response, she stated:

Yes. I recommended that she continue with counseling. I reassured her that the exam was normal, but that even though it was normal, we still believe her disclosure and that we will be following through with whatever is required on our end to help her along.

(Tr. 367-368.)

{¶ 19} Like the social worker, Loyke testified that she recommended counseling. However, unlike Hennessey, Loyke testified that she believed B.C.'s disclosures.

This court has held that it is reversible error to admit testimony from a purported expert or lay witness attesting to the believability of another's statements. State v. Boston , 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989). "[I]n our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses." State v. Pizzillo , 7th Dist. Carroll No. 746, 2002-Ohio-446 [2002 WL 75936], citing Boston at 129 [545 N.E.2d 1220].

State v. Wilson , 8th Dist. Cuyahoga No. 104333, 2017-Ohio-2980, 2017 WL 2293074, ¶ 48.

{¶ 20} Pursuant to Crim.R. 52(A), "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Middleburg Hts. v. Lasker , 2016-Ohio-5522, 76 N.E.3d 372, ¶ 16 (8th Dist.). In order to find an error was harmless, a reviewing court must be able to declare a belief that the error was harmless beyond a reasonable doubt. State v. Lytle , 48 Ohio St.2d 391, 403, 358 N.E.2d 623 (1976). A reviewing court may overlook an error where the admissible evidence comprises "overwhelming" proof of a defendant's guilt. State v. Williams , 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983). "Where there is no reasonable possibility that unlawful testimony contributed to a conviction, the error is harmless and therefore will not be grounds for reversal." State v. Brown , 65 Ohio St.3d 483, 485, 605 N.E.2d 46 (1992).

{¶ 21} Ohio courts have held that

[a] Boston violation may be harmless error beyond a reasonable doubt when considering certain factors. Those factors include "(1) if the victim testifies and is subject to cross-examination, (2) the state introduces substantial medical evidence of sexual abuse, and (3) the expert or lay person's opinion testimony is cumulative to other evidence." State v. Palmer , 9th Dist. Medina No. 2323-M [1995 WL 48442] (Feb. 8, 1995) ; State v. Lewis , 9th Dist. Summit No. 14632 [1991 WL 156559] (Aug. 14, 1991) ; State v. Djuric , 8th Dist. Cuyahoga No. 87745, 2007-Ohio-413 [2007 WL 274373], ¶ 44.
However, a finding of harmless error is not justified if the case is a "credibility contest" between the victim and the defendant. State v. Burrell , 89 Ohio App.3d 737, 746, 627 N.E.2d 605 (9th Dist.1993). Thus, in order to find a Boston violation harmless, some independent evidence must exist when it is a credibility contest between the defendant and the victim. State v. West , 8th Dist. Cuyahoga No. 90198, 2008-Ohio-5249 [2008 WL 4516673].

State v. Eisermann , 8th Dist. Cuyahoga No. 100967, 2015-Ohio-591, 2015 WL 758989, ¶ 63-64.

{¶ 22} After careful consideration, we find that the trial court's error in permitting Loyke's testimony that rendered an opinion on the veracity of B.C.'s disclosures were not harmless error. Loyke's impermissible testimony "acted as a litmus test of the key issue in the case and infringed upon the role of the fact finder, who is charged with making determinations of veracity and credibility." Boston , 46 Ohio St.3d 108, at 129, 545 N.E.2d 1220, quoting State v. Eastham , 39 Ohio St.3d 307, 530 N.E.2d 409 (1988). In the absence of substantial medical evidence of sexual abuse or corroborating evidence, this case hinged on issues of credibility. While B.C. testified and was subject to cross-examination, Loyke's testimony was significant, it bolstered the credibility of B.C.'s testimony, and was not merely cumulative to other evidence. Moreover, the SANE nurse's testimony that she "believed" B.C.'s disclosure is particularly troublesome because it was made in direct reference to the fact that B.C.'s "head-to-toe" medical examination results were "normal" and did not reveal any physical injuries or clear signs of sexual abuse. Therefore, the admission of Loyke's testimony concerning the credibility of B.C.'s disclosure was not harmless beyond a reasonable doubt. For this reason, we reverse Carter's conviction and remand for a new trial.

{¶ 23} The remaining assignments of error are moot pursuant to App.R. 12(A), and therefore a determination on those issues are not required.

{¶ 24} Judgment is reversed and remanded.

MARY EILEEN KILBANE, P.J., CONCURS;

EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY