[Cite as State v. Bowen, 2020-Ohio-24.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                    Hon. John W. Wise, J.
                                               Hon. Patricia A. Delaney, J.
 -vs-
                                               Case No. 19CA0007
 ROBERT C. BOWEN

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Holmes County Court of
                                               Common Pleas, Case No. 18CR0058


 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       January 6, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 ROBERT K. HENDRIX                             ERIC J. ALLEN
 Assistant Prosecuting Attorney                The Law Office of Eric J. Allen, Ltd.
 Holmes County, Ohio                           4200 Regent, Suite 200
 164 E. Jackson Street                         Columbus, Ohio 43219
 Millersburg, Ohio 44654
Holmes County, Case No. 19CA0007                                                           2


Hoffman, P.J.
        {¶1}   Defendant-appellant Robert C. Bowen appeals his convictions and

sentence entered by the Holmes County Court of Common Pleas, on one count of rape

and four counts of sexual battery, following a jury trial. Plaintiff-appellee is the state of

Ohio.

                           STATEMENT OF THE CASE AND FACTS

        {¶2}   On June 4, 2018, the Holmes County Grand Jury indicted Appellant on one

count of rape, in violation of R.C. 2907.02(A)(2) and (B), a felony of the first degree; and

four counts of sexual battery, in violation of R.C. 2907.03(A)(5) and (B), felonies of the

third degree. The charges arose from incidents involving Appellant’s adopted daughter

(“the Child”). Appellant appeared before the trial court for arraignment on June 12, 2018,

and entered pleas of not guilty to all of the charges.

        {¶3}   The matter proceeded to jury trial on January 28, 2019. The following

evidence was adduced at trial.

        {¶4}   Mary Bowen testified she and Appellant were married on July 4, 2011.

Although they were still legally married at the time of the trial, Bowen indicated they had

been separated for over a year. Bowen and Appellant became foster parents to the Child

in September, 2012, and the child’s sister in November, 2012. Bowen and Appellant

adopted both children on March 24, 2014. Bowen conceded the Child and her sister had

behavioral problems.

        {¶5}   Bowen explained the Child and her sister were homeschooled after the

Child’s sister called in a bomb threat to her elementary school. Bowen worked six days

a week, usually from 7:30 a.m. to 5:30 or 6:00 p.m., but worked close enough to their

home to check on the children during her lunch hour.
Holmes County, Case No. 19CA0007                                                       3


      {¶6}   In June, 2016, when the Child was 15 years old, she disclosed to Bowen

Appellant had touched her inappropriately. Bowen explained the Child had snuck out of

the house around midnight one evening to meet a 19 or 20 year old young man, and did

not return until 3:30 a.m. Bowen confronted the Child, telling her the young man would

get in trouble if she (Bowen) called the police. The Child responded Bowen should call

the police about Appellant as he had touched her. Bowen questioned Appellant, who

denied any wrongdoing. The Child later told Bowen she was lying. The Child returned

to public school in September, 2017.

      {¶7}   In January, 2018, after the Child’s sister set a number of fires, Children’s

Services became involved with the family. The Child’s sister told Children’s Services

Appellant had been abusing her and the Child. When Children’s Services questioned the

Child regarding her sister’s disclosure, the Child denied any abuse by Appellant.

      {¶8}   Bowen recalled the Child attended her prom the weekend of April 21, 2018.

When the Child was at school the following Monday, the Child disclosed Appellant had

been abusing her. Bowen was instructed to bring the Child to Children’s Services and

thereafter learned about the Child’s disclosure.    Bowen was contacted by Victim’s

Assistance and was informed Appellant had confessed.

      {¶9}   The Child testified, when she was 15 years old, Appellant entered her

bedroom and touched her breasts over her clothing. Appellant instructed her not to tell

her mother. The Child recalled it was the summer and she was sick. The Child detailed

another incident which occurred when she was still 15.       She noted she was being

homeschooled at the time and needed help with algebra.         The Child proceeded to

Appellant’s bedroom which was located in the basement of the home. Appellant began
Holmes County, Case No. 19CA0007                                                         4


to help her with her math, but then pushed her onto his bed and removed her clothes.

Appellant vaginally penetrated her. Appellant told the Child not to tell anyone or he would

not be her father anymore. Appellant also threatened to do the same to the Child’s sister

if the Child told anyone. After the incident, the Child hurriedly put on her clothes and

returned upstairs to finish her schoolwork. The Child testified Appellant had sexual

intercourse with her at least five times. Shortly before the Child turned 16, she disclosed

the abuse to Bowen. The Child admitted she later told Bowen she had made “the whole

thing up”. Tr. at 128.

       {¶10} The Child testified, in January, 2018, she spoke with a detective and a social

worker after the Child’s sister had set a few fires in their home. The detective and the

social worker questioned the Child about Appellant, but she did not disclose the abuse at

that time. The Child disclosed the abuse to her boyfriend and a friend the night of her

prom, April 21, 2018. The following Monday, the Child met with Ms. Gilson, the school

liaison, and told the woman what Appellant had done to her. Ms. Gilson informed the

Child she was required to contact the authorities. When the Child returned home from

school, Bowen met her at the bus and told her Children’s Services needed to speak with

her. The Child met with Jacqueline Shaw and disclosed the abuse.

       {¶11} Sergeant James Henry, a detective with the Holmes County Sheriff’s Office,

testified he interviewed Appellant on May 10, 2018. The interview was recorded and the

recording was played for the jury. During the interview, Appellant confessed to having a

sexual relationship with the Child.    Det. Henry acknowledged the Child, during an

interview on January 9, 2018, initially denied any sexual contact with Appellant. The
Holmes County, Case No. 19CA0007                                                            5


detective explained it is not unusual for the victim of sexual abuse to initially not disclose

the abuse occurred, but subsequently, after counseling, is able to do so.

         {¶12} Appellant testified on his own behalf. He explained he was contacted by

Det. Lay of the Millersburg Police Department, who requested Appellant come to the

station to speak with him. Appellant phoned Det. Lay and the two spoke on the telephone

for an hour. During the conversation, the detective set up a computerized voice stress

analyzer (“CVSA”). Several weeks later, in February, 2018, Appellant was interviewed

by Det. Lay.     Appellant and the detective spoke for two hours, including the time

conducting the CVSA. Appellant did not hear from the detective again.

         {¶13} On April 24, 2018, the Tuesday following the Child’s prom, Appellant

received a message he needed to call Job and Family Services. He was instructed to

contact Det. Henry. When Appellant initially sat down with Det. Henry, he assumed he

was being questioned about the situation with the Child’s sister. Appellant was shocked

by the allegations. Appellant denied confessing to Det. Henry and denied abusing the

Child.

         {¶14} After hearing all the evidence and deliberating, the jury found Appellant

guilty of all five counts contained in the Indictment. The trial court sentenced Appellant

to an aggregated term of incarceration of ten years.

         {¶15} It is from these convictions and sentence Appellant appeals, raising the

following assignments of error:



               I. THE STATE OF OHIO FAILED TO PRODUCE SUFFICENT [SIC]

         EVIDENCE TO CONVICT THE APPELLANT OF THE COUNTS IN THE
Holmes County, Case No. 19CA0007                                    6


     INDICTMENT IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER

     THE FIFTH AMENDMENT MADE APPLICABLE TO ALL STATE

     CRIMINAL    PROSECUTIONS      BY   THE   FOURTHEENTH   [SIC]

     AMENDMENT TO THE FEDERAL CONSTITUTION.

           II. THE CONVICTIONS IN THIS MATTER ARE NOT SUPPORTED

     BY THE MANIFEST WEIGHT OF THE EVIDENCE VIOLATIVE OF THE

     APPELLANT’S RIGHT TO DUE PROCESS GUARANTEED BY THE

     FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.

           III. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING

     A PUNITIVE DISCOVER SANCTION THAT WAS NOT THE LEAST

     RESTRICTIVE AND WAS VIOLATIVE OF HIS DUE PROCESS RIGHTS

     UNDER THE FIFTH AMENDMENT MADE APPLICABLE TO ALL STATE

     CRIMINAL PROSECUTIONS BY THE FOURTEENTH AMENDMENT TO

     THE FEDERAL CONSTITUTION.

           IV. THE TRIAL COURT COMMITTED ERROR BY ALLOWING

     DISCUSSION OF A CVSA TEST AND VIOLATED APPELLANT’S RIGHT

     TO DUE PROCESS GUARANTEED TO HIM UNDER THE FIFTH

     AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE

     TO STATE CRIMINAL PROSECUTIONS BY THE FOURTEENTH

     AMENDMENT.
Holmes County, Case No. 19CA0007                                                           7


                                                 I

       {¶16} In his first assignment of error, Appellant contends his convictions were not

based upon sufficient evidence and the trial court erred in denying his Crim. R 29 motion

for acquittal.

       {¶17} Criminal Rule 29(A) provides a court must order the entry of a judgment of

acquittal on a charged offense if the evidence is insufficient to sustain a conviction on the

offense. Crim. R. 29(A). However, “a court shall not order an entry of judgment of acquittal

if the evidence is such that reasonable minds can reach different conclusions as to

whether each material element of a crime has been proved beyond a reasonable doubt.”

State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. Thus, a motion

for acquittal tests the sufficiency of the evidence. State v. Tatum, 3d Dist. Seneca No. 13-

10-18, 2011-Ohio-3005, 2011 WL 2448972, ¶ 43, citing State v. Miley, 114 Ohio App.3d

738, 742, 684 N.E.2d 102 (4th Dist. 1996).

       {¶18} When an appellate court reviews a record for sufficiency, the relevant

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827

N.E.2d 285, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). Accordingly, the question of whether the offered

evidence is sufficient to sustain a verdict is a question of law. State v. Perkins, 3d Dist.

Hancock No. 5-13-01, 2014-Ohio-752, 2014 WL 855870, ¶ 30, citing Thompkins at 386,

678 N.E.2d 541.
Holmes County, Case No. 19CA0007                                                          8


      {¶19} Appellant was convicted of one count of rape, in violation of R.C.

2907.02(A)(2) and (B), which provides:



             (A)(2) No person shall engage in sexual conduct with another when

      the offender purposely compels the other person to submit by force or threat

      of force.

             (B) Whoever violates this section is guilty of rape, a felony of the first

      degree. * * *



      {¶20} Appellant also was convicted of four counts of sexual battery, in violation of

R.C. 2907.03(A)(5), which provides:



             (A) No person shall engage in sexual conduct with another, not the

      spouse of the offender, when any of the following apply: * * *

             (5) The offender is the other person's natural or adoptive parent, or

      a stepparent, or guardian, custodian, or person in loco parentis of the other

      person.



      {¶21} With respect to the rape charge, Appellant submits the evidence was

insufficient as Appellant adamantly denied the incident giving rise to the rape charge and

there was no corroborating evidence. With respect to the sexual battery counts, Appellant

explains the Child testified there was only one incident involving force, which was the

basis for the rape charge.
Holmes County, Case No. 19CA0007                                                       9


      {¶22} The Ohio Supreme Court in State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d

304(1988), a case involving the rape of a four year old by her father, addressed the

element of force in a rape count. The Ohio Supreme Court explained:



             Force need not be overt and physically brutal, but can be subtle and

      psychological. As long as it can be shown that the rape victim's will was

      overcome by fear or duress, the forcible element of rape can be established.

      State v. Martin (1946), 77 Ohio App. 553, 68 N.E.2d 807 [33 O.O. 364];

      State v. Wolfenberger (1958), 106 Ohio App. 322, 154 N.E.2d 774 [7

      O.O.2d 73]. In the within case, we are confronted with a child being told to

      do something by an important figure of authority, and commanded not to tell

      anyone about it. In such a case, we find nothing unreasonable about a

      finding that the child's will was overcome. Consequently, the forcible

      element of rape was properly established. State v. Fowler (1985), 27 Ohio

      App.3d 149, 154, 27 OBR 182, 187, 500 N.E.2d 390, 395. Id. at 58-59.



      {¶23} The evidence at trial established Appellant was the Child’s adoptive father.

The Child testified about an incident which occurred when she was 15 years old. She

was homeschooled at the time and needed help with algebra.            The Child sought

Appellant’s assistance. She proceeded to Appellant’s bedroom. Appellant began to help

her with her math, but then pushed her onto his bed and removed her clothes. Appellant

vaginally penetrated her. Appellant told the Child not to tell anyone or he would not be

her father anymore. Appellant also threatened to do the same to the Child’s sister if the
Holmes County, Case No. 19CA0007                                                          10


Child told anyone. The Child stated Appellant had sexual intercourse with her at least

five times.

       {¶24} We find coercion is inherent in parental authority when a father sexually

abuses his child. Further, we find Appellant’s threat of assaulting the Child’s sister was a

subtle and psychological force. The Child’s will was overcome by the fear and duress of

harm to her sibling. Accordingly, we find the forcible element of rape was properly

established. We also find the element of sexual battery were established. Bowen testified

she and Appellant were the Child’s adoptive parents. The Child detailed several incidents

during which Appellant engaged in sexual conduct with her.

       {¶25} Based upon the foregoing, we find Appellant's convictions were based upon

sufficient evidence.

       {¶26} Appellant’s first assignment of error is overruled.

                                                 II

       {¶27} In his second assignment of error, Appellant challenges his convictions as

against the manifest weight of the evidence.

       {¶28} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered’.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
Holmes County, Case No. 19CA0007                                                           11


       {¶29} “The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge

the credibility of the witnesses.

       {¶30} Appellant asserts the Child was not a credible witness for several reasons.

First, Appellant refers to the Child’s initial disclosure of the abuse to Bowen in 2016.

When Bowen confronted the Child after she was caught sneaking out of the house to

meet her boyfriend, the Child declared Appellant had abused her.             The Child later

recanted her allegation, explaining she had lied to get herself out of trouble. Next,

Appellant points to the Child’s testimony she never told her sister about the abuse.

Appellant submits this statement was not credible as the two sisters were extremely close;

therefore, the Child would have told her sister about the abuse. Appellant adds the Child

acknowledged she was angry about the break-up of Bowen and Appellant’s marriage,

explaining her anger translated to revenge at Appellant. Finally, Appellant notes the Child

waited until 2018, to disclose the abuse to anyone.

       {¶31} Det. James Henry testified it is not unusual for a victim to initially deny abuse

has occurred. In fact, when the Child was questioned during her cross-examination about

her January, 2018 denial, she commented, “Why would I want to tell four (4) strangers

what I was going through?” Tr. at 148. The Child finally acknowledged the abuse after

she had “worked up enough courage.” Tr. at 149.

       {¶32} In addition, the videotape of Appellant’s interview with Det. Henry was

played for the jury. During the interview, Appellant confessed to the crimes. Appellant
Holmes County, Case No. 19CA0007                                                           12


did not, however, concede he threatened the Child not to tell anyone or forced her to have

intercourse with him on the first occasion.

       {¶33} The jury was free to accept or reject any or all of the evidence offered by

the parties and assess the witnesses' credibility. Indeed, the jurors need not believe all of

a witness' testimony, but may accept only portions of it as true. State v. McGregor, 5th

Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 294299. The jury clearly

believed the testimony of the Child and the state’s other witnesses.

       {¶34} Upon review of the entire record, including reading the entire transcript, we

find Appellant’s convictions were not against the manifest weight of the evidence.

       {¶35} Appellant’s second assignment of error is overruled.

                                                 III

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

precluding the introduction of the Child’s text messages as a sanction for an alleged

discovery violation. Appellant maintains such sanction was not the least restrictive and

violated his right to due process.

       {¶37} “Although a criminal defendant has the right to present witness testimony

on his behalf, a trial court may ‘exclude such evidence when the orderly administration of

justice is threatened by the accused's failure to promptly disclose witnesses.’ “ State v.

Calise, 9th Dist. No. 26027, 2012–Ohio–4797, ¶ 30, quoting State v. Moon, 74 Ohio

App.3d 162, 169, 598 N.E.2d 726 (9th Dist. 1991). “The rules of discovery, and more

specifically Crim. R. 16, imbue trial courts with the discretion to exclude testimony that is

not disclosed in a timely manner in order to prevent surprise and ensure a fair trial.” Calise

at ¶ 30, citing State v. Barrios, 9th Dist. No. 06CA009065, 2007–Ohio–7025, ¶ 18.
Holmes County, Case No. 19CA0007                                                         13


“Exclusion is a permissible sanction ‘as long as it would not completely deny the

defendant his constitutional right to present a defense’.” Barrios at ¶ 18, quoting State v.

Sinkfield, 2d Dist. No. 18663, 2001 WL 1517314, *8 (Nov. 30, 2001). Because a trial

court's decision to exclude testimony is a discretionary one, we review a court's decision

to exclude evidence under an abuse of discretion standard of review. Barrios at ¶ 18. An

abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶38} In Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), the

Ohio Supreme Court stated, “[a] trial court must inquire into the circumstances

surrounding a discovery rule violation and, when deciding whether to impose a sanction,

must impose the least severe sanction that is consistent with the purpose of the rules of

discovery.” Id. at paragraph two of the syllabus. The High Court noted, “[t]he philosophy

of the Criminal Rules is to remove the element of gamesmanship from a trial.” Id. at *3.

(Citation omitted.) The Papadelis Court explained, “[t]he purpose of discovery rules is to

prevent surprise and the secreting of evidence favorable to one party. The overall purpose

is to produce a fair trial.” Id.

       {¶39} In Papadelis, the Supreme Court also sets forth a list of factors to be

considered by the trial court prior to issuing a sanction. Those factors included: “the

extent to which the prosecution will be surprised or prejudiced by the witness' testimony,

the impact of witness preclusion on the evidence at trial and the outcome of the case,

whether violation of the discovery rules was willful or in bad faith, and the effectiveness

of less severe sanctions.” Id. at *5.
Holmes County, Case No. 19CA0007                                                        14


       {¶40} At trial, during the cross-examination of the Child, defense counsel sought

to introduce text messages, which were either to or from the Child’s phone, for the

purpose of refreshing her recollection. The state objected to the introduction of the text

message, indicating it had not received such in discovery. Defense counsel explained

she just recently obtained the text messages and did not know how the Child would testify.

The trial court would not allow defense counsel to use the text messages for any purpose.

Defense counsel noted her objection for the record.

       {¶41} Assuming, arguendo, the trial court erred in excluding the text messages,

we find any error to be harmless. Appellant failed to make a proffer of the nature of text

messages. Without such a proffer, this Court cannot find Appellant was prejudiced by the

exclusion of the evidence.

       {¶42} Appellant’s third assignment of error is overruled.

                                                    IV

       {¶43} In his final assignment of error, Appellant maintains the trial court erred in

allowing discussion of a computerized voice stress analyzer test, and violated his right to

due process as a result. Specifically, Appellant argues the trial court should have

precluded defense counsel from questioning Det. Henry about why he did not offer

Appellant the opportunity to take a CVSA test.

       {¶44} We review this assignment of error under a plain error analysis. In State v.

Thomas, 152 Ohio St.3d 15, 92 N.E.3d 821, 2017–Ohio–8011, he Ohio Supreme Court

clarified the standard of review for plain error:
Holmes County, Case No. 19CA0007                                                          15


            Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

     errors or defects affecting substantial rights” notwithstanding an accused's

     failure to meet his obligation to bring those errors to the attention of the trial

     court. However, the accused bears the burden to demonstrate plain error

     on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034,

     19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

     rule” that constitutes “an ‘obvious’ defect in the trial proceedings,” State v.

     Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

            Even if the error is obvious, it must have affected substantial rights,

     and “[w]e have interpreted this aspect of the rule to mean that the trial

     court's error must have affected the outcome of the trial.” Id. We recently

     clarified in State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38

     N.E.3d 860, that the accused is “required to demonstrate a reasonable

     probability that the error resulted in prejudice—the same deferential

     standard for reviewing ineffective assistance of counsel claims.” (Emphasis

     sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,

     81–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

            If the accused shows that the trial court committed plain error

     affecting the outcome of the proceeding, an appellate court is not required

     to correct it; we have “admonish[ed] courts to notice plain error ‘with the

     utmost caution, under exceptional circumstances and only to prevent a

     manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759
Holmes County, Case No. 19CA0007                                                          16


       N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

       (1978), paragraph three of the syllabus.

              Id. at ¶¶ 32–34.



       {¶45} During her cross-examination of Det. Henry, defense counsel asked the

detective if he had offered Appellant an opportunity to take a CVSA or lie detector test to

“confirm his confession.” Tr. at 206. Det. Henry responded he would have offered the

test if Appellant had not confessed. The detective would not concede the test would be

a tool to further verify or support Appellant’s confession. Det. Henry explained he does

“believe in them” and will only offer the test as a chance to conduct a second interview.

       {¶46} We find Appellant opened the door to this line of questioning and Appellant

has failed to establish the alleged plain error affected the outcome of the trial. Det. Henry

stated he did not believe in CVSA’s or polygraphs, and utilized them only as a means to

a second interview with an accused. The detective’s testimony neither incriminated nor

cleared Appellant. Accordingly, we find no error, plain or otherwise.
Holmes County, Case No. 19CA0007                                               17


      {¶47} Appellant’s fourth assignment of error is overruled.

      {¶48} The judgment of the Holmes County Court of Common Pleas is affirmed.




By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur
