[Cite as State v. Ross, 2018-Ohio-452.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2016-P-0060
        - vs -                                  :

STEPHEN ROSS,                                   :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
00837.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

William A. Vasiliou, II, The Gothic Building, 54 East Mill Street, Akron, OH 44308-1736
(For Defendant-Appellant).




CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Stephen Ross, appeals his conviction in the Portage County

Court of Common Pleas, following a jury trial, of rape and gross sexual imposition of his

daughter, H.R., who, at the time, was less than ten years old. The principal issues are

whether appellant’s conviction was supported by sufficient evidence and whether his

conviction was against the manifest weight of the evidence. For the reasons that follow,

we affirm.
       {¶2}   As pertinent to this appeal, appellant was indicted for three counts of rape

of a female under ten years old, felonies of the first degree, and three counts of gross

sexual imposition of a female under 13 years old, felonies of the third degree. Appellant

pled not guilty and the case proceeded to jury trial.

       {¶3}   H.R.’s mother, Amy Bianco (“Mother”), testified that she and appellant

were married in 2004. They lived in a home in Streetsboro and had two children, H.R.,

who was born in 2005, and another daughter, who was born in 2007.

       {¶4}   H.R., who at the time of trial was 11 years old, testified that her first

memory of being sexually abused by appellant was when she was three years old. She

said that at that time her family was on vacation and staying in a hotel. When she was

alone with appellant in the hotel room, he pulled down her underwear and touched her

private parts.   She described her private parts as the areas that are covered by a

bathing suit, including the butt, vagina, and breasts.

       {¶5}   H.R. testified that between the time she was three and ten, appellant

repeatedly engaged in this type of behavior. She said this would take place when the

two of them were alone in a room, sometimes during the day and sometimes at night.

       {¶6}   H.R. said that appellant would kiss her and put his tongue in her mouth.

He would pull her underwear down and touch her vagina with his fingers and mouth and

would sometimes lick it. She said he would suck her breasts and rub his penis against

her vagina. She said sometimes “white slippery stuff” came out of it that would go on

her parents’ bed or around her leg area.




                                             2
       {¶7}   H.R. said that one time appellant made her lick his penis. She said he put

his penis inside her mouth and when he tried to shove it in further, she made it end by

turning her head away.

       {¶8}   H.R. said her father did these things to her five to ten times or more in

their home. H.R. said her father would say this was their “little secret.” She said it

made her feel important because appellant gave her more attention and she felt he

“treasured” her more than her sister.

       {¶9}   H.R. said she realized this was not appropriate behavior between a father

and daughter when she was about six years old, but, she said, she did not tell anyone

at that time because she did not want her father to stop loving her. When asked why

she did not tell her doctors, she said, “I thought that it wasn’t that bad. * * * I could

always make an excuse up in my head about not doing it.”

       {¶10} H.R. said this conduct continued after her parents separated and her

father moved into an apartment in 2013 (when she was eight years old) until she was

ten years old at which time she finally told her mother.

       {¶11} Mother testified that when H.R. was three, she started experiencing

anxieties that were serious enough that they affected her sleep. At that time, she also

started having temper tantrums, acting out aggressively toward her sister, and

experiencing “meltdowns” for no apparent reason that caused her to scream, yell, and

cry. When H.R. was four, she was urinating on towels and blankets and then hiding

them. Mother reported this to H.R.’s therapist. H.R.’s pediatrician referred Mother to a

child psychiatrist. H.R. was diagnosed with generalized anxiety disorder and she was




                                             3
prescribed medication. However, H.R.’s sleep problems, urinating issues, anxieties,

and meltdowns continued.

       {¶12} When H.R. was seven years old and in second grade, H.R.’s school

reported to Mother that there was an allegation that H.R. had been “caressing” some of

the other students’ “butts” in a sexual way.

       {¶13} Then, when H.R. was eight, a neighbor caught H.R. and his daughter

dancing in their garage and H.R. had her underwear pulled down.

       {¶14} Mother said that, beginning when H.R. was three, she and her husband

took H.R. to see a series of therapists, psychologists, and psychiatrists, but her

anxieties and behavioral issues only became worse.

       {¶15} Appellant testified that in 2012, he began an affair with a woman from

work, which he kept secret from his co-workers and Mother until she discovered it in

2013. In October of that year, appellant moved out of the marital residence to an

apartment in Streetsboro. At that time Mother and appellant told H.R. and her younger

sister that appellant would no longer be living with them. They told the girls that they

would continue living in their home with Mother and that they would regularly visit with

appellant. Mother said that H.R.’s sister cried hysterically, but H.R. showed no emotion.

       {¶16} Appellant had weekly visitation with the girls in his apartment. At that time

H.R. was eight and nine years old. She said that during these visits, her father engaged

in the same kinds of sexual acts with her about five more times. She said, “[h]e rubbed

his penis against my vagina.      I remember him putting his penis in my mouth.          I

remember him sucking my breasts and I remember him kissing me all over.”




                                               4
      {¶17} Mother testified that late one evening in June 2015, H.R. came to her

bedroom crying, sweating, and with her face red, saying she needed to talk to her. After

Mother was able to calm H.R. down, she said her father had been touching her on her

private parts since she was three years old. H.R. said, “Please don’t tell him. I don’t

want him to know I told you. Just make it stop.” The next morning, Mother called H.R.’s

counselor, Ms. Wiggins. She told Mother to bring H.R. in to see her and to report the

abuse to the County Hotline, which she did. On June 18, 2015, Mother reported the

abuse to the Streetsboro Police Department. On June 25, 2015, she took H.R. to the

Children’s Advocacy Center at Robinson Memorial Hospital to be interviewed.

Streetsboro Police Detective Brian Shaffer met Mother at the Advocacy Center and

observed H.R. being interviewed.

      {¶18} Mother obtained a protective order from the domestic relations court on

June 19, 2015. Appellant had supervised visitation with the children from that time until

December 2015, when the court terminated visitation pending the criminal action.

      {¶19} Mother said that since December 2015, H.R.’s behavior has significantly

improved. Mother said H.R. has been “amazing.” She plays, laughs, has friends, and

is “a different kid.” Mother said that, in the past, any random thing would cause H.R. to

have a meltdown. Now, the only things that upset H.R. are things that would upset any

normal 11-year old and the frequency of such events has greatly declined.

      {¶20} When Mother was asked if, in hindsight, she ever thought something

wrong was occurring, she said that one night she fell asleep on the couch downstairs.

She woke up at about 6:00 a.m. and went upstairs to get in bed. At the time, appellant

and H.R. were in her and appellant’s bed.        She said H.R. was awake, but was




                                           5
uncharacteristically silent. Mother said, “[h]er eyes were big” and she looked “scared.”

Mother said that, “looking back on it now, it doesn't feel right.” However, she said, “at

the time it just struck me as odd.”

       {¶21} Nurse Carlyn Johnson, a Forensic Interviewer and a Pediatric Sexual

Assault Nurse Examiner (PSANE) at the Children’s Advocacy Center at Robinson

Memorial Hospital, testified that on June 25, 2015, she conducted a PSANE interview of

H.R. and performed a medical examination of the child. She said the result of the exam

was normal, meaning there were no tears to her genitalia. However, she said that if a

child was penetrated recently (within a few days), they may see physical findings. But,

she said, the tissues of a girl’s private area are like the inside of a mouth, i.e., they are

easily torn, but they heal quickly and really well. She said that if such conduct occurred

more than one week earlier, she would not expect to see physical findings. Such would

be the case here for two reasons: appellant had not subjected H.R. to any sexual

conduct within the last six months and he never penetrated her vagina with his penis.

       {¶22} Nicole Bartlett, a certified trauma counselor at Children’s Advantage, a

family mental health facility, testified she started working with Mother and H.R. in

August 2015 and has been treating H.R. since she reported the abuse.

       {¶23} Ms. Bartlett said that by the time the case was referred to her, J.F.S. had a

“substantiated allegation” and had made a finding and the Children’s Advocacy Center

had completed a PSANE interview and a physical exam of H.R.

       {¶24} Ms. Bartlett said that H.R. was still suffering from many anxiety-related

symptoms when she began working with her. Her team created a treatment plan for

H.R. to decrease her symptoms and help her life improve. Ms. Bartlett said that H.R’s




                                             6
anxiety continued while she was seeing her father in supervised visitation, but that

shortly after visitation stopped in December 2015, H.R.’s anxiety symptoms subsided to

the point where they were able to see progress. She said, “as we progressed through

therapy, her symptoms have decreased significantly and she’s been able to be in school

without intrusive images and concentration issues.”         Ms. Bartlett said that, while

preparing for trial, H.R.’s trauma symptoms temporarily increased, but she said this is

normal because a child re-experiences the trauma when required to remember the

abuse. Ms. Bartlett testified that H.R.’s symptoms were consistent with a child that

experienced sexual abuse.

       {¶25} After the state rested its case, appellant testified on his own behalf,

denying he ever abused H.R. He testified there were no hard feelings between him and

Mother. He said that in general visitation was handled really well and they had a “great”

working relationship co-parenting the children. Thus, he did not suggest that Mother

had anything to do with H.R.’s allegations.

       {¶26} Similarly, appellant said that after the separation and divorce, he still had a

“great” relationship with H.R. and her behavior never changed toward him. He said that

H.R. never got angry or resentful with him, and H.R. never gave him any reason to think

she made up her allegations to harm him. When asked by his attorney on direct why

H.R. would make up these allegations, he said he did not know, but he speculated it

might have had something to do with a report in the local news around that time that the

principal of H.R.’s school had been caught soliciting sex from a 13-year old. However,

this had nothing to do with H.R. or appellant.




                                              7
       {¶27} Significantly, appellant said he did not know how H.R., a ten-year old girl,

would know how to make these allegations unless she actually experienced the abuse.

       {¶28} Further, appellant’s two defense experts unwittingly provided testimony

that supported the state’s case. Laurence Rosenberg, M.D., a pediatrician, testified on

cross-examination that regressive behaviors, like urinating problems or acting out by

touching children in ways the child abuse victim was touched, such as H.R.

experienced, are consistent with child sexual abuse.

       {¶29} Likewise, appellant’s second expert, psychologist, Jolie Brams, Ph.D.,

testified on cross that a child’s (such as H.R.’s) urination problems; emotional control

issues; acting out the abusive behaviors they experienced at the hands of an abuser

with other children; acting out against a sibling; delay in reporting the abuse for an

extended period of time, even years; and reporting the abuse to a trusted parent, rather

than a doctor or therapist, are all consistent with child sexual abuse.

       {¶30} Following the presentation of the evidence, the jury returned a verdict

finding appellant guilty of one count of rape and three counts of gross sexual imposition

as charged in the indictment. The jury found appellant not guilty of the two remaining

counts of rape. At sentencing, the trial court addressed appellant and aptly stated,

“every time [H.R.] had a meltdown, every time she was obstinate, every time she threw

tantrums, she was trying to tell everybody what was happening to her. She just couldn’t

formulate the words to do it because you were still right there. And she loved you, and

she probably still does, because you’re her dad.”




                                             8
       {¶31} The court sentenced appellant to 15 years to life in prison on the rape

count and five years for each count of gross sexual imposition, all terms to be served

consecutively to the other, for a total of 30 years to life.

       {¶32} Appellant appeals his conviction, asserting four assignments of error. For

clarity of analysis, they are taken out of order. For appellant’s fourth assignment of

error, he alleges:

       {¶33} “The appellant’s convictions were against the sufficienicy [sic] and the

manfiest [sic] weight of the evidence.”

       {¶34} An appellate court reviewing the sufficiency of the evidence examines the

evidence admitted at trial and determines whether, after viewing the evidence in a light

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

elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 273 (1991). “On review for sufficiency, courts are to assess not whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook,

J., concurring). Whether the evidence is legally sufficient to sustain a verdict is a

question of law, which we review de novo. Id. at 386.

       {¶35} In contrast, a court reviewing the manifest weight observes the entire

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

of the witnesses. Thompkins, supra, at 387. The court determines whether, in resolving

conflicts in the evidence and deciding witness credibility, the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. Id. The discretionary power to grant a new trial should




                                               9
only be exercised in the exceptional case in which the evidence weighs heavily against

the conviction. Id. Witness credibility rests solely with the finder of fact, and an appellate

court is not permitted to substitute its judgment for that of the jury. State v. Awan, 22

Ohio St.3d 120, 123 (1986). The role of the reviewing court is to engage in a limited

weighing of the evidence in determining whether the state properly carried its burden of

persuasion. Thompkins, supra, at 390. If the evidence is susceptible to more than one

interpretation, an appellate court must interpret it in a manner consistent with the

verdict. State v. Banks, 11th Dist. Ashtabula No.2003-A-0118, 2005-Ohio-5286, ¶33.

       {¶36} Appellant was convicted of rape, in violation of R.C. 2907.02(A)(1)(b),

which provides: “No person shall engage in sexual conduct with another who is not the

spouse of the offender * * *, when [t]he other person is less than thirteen years of age,

whether or not the offender knows the age of the other person.” “Sexual conduct” is

defined at R.C. 2907.01(A) as

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

       {¶38} Appellant was also convicted of three counts of gross sexual imposition, in

violation of R.C. 2907.05(A)(4), which provides: “No person shall have sexual contact

with another, not the spouse of the offender; [or] cause another, not the spouse of the

offender, to have sexual contact with the offender * * * when [t]he other person * * * is

less than thirteen years of age, whether or not the offender knows the age of that

person.”   “Sexual contact” is defined at R.C. 2907.01(B) as “any touching of an

erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic



                                             10
region, or, if the person is a female, a breast, for the purpose of sexually arousing or

gratifying either person.”

       {¶39} With respect to appellant’s rape conviction, the state presented evidence

that appellant had H.R. perform fellatio on him at the family home and in appellant’s

apartment and that he performed cunnilingus on her in the family home. In State v.

Falkenstein, 8th Dist. Cuyahoga No. 83316, 2004-Ohio-2561, appeal denied by the

Ohio Supreme Court at 107 Ohio St.3d 1405, 2005-Ohio-5859, the Eighth District held

that “‘the law requires no further activity to constitute cunnilingus [under R.C.

2907.01(A)] beyond the placing of one’s mouth on the female’s vagina.’” Id. at ¶15,

quoting State v. Bailey, 78 Ohio App.3d 394, 395 (1st Dist.1992). With respect to

appellant's convictions for gross sexual imposition, H.R. testified that appellant sucked

her breasts, touched her vagina with his fingers, and rubbed his penis against her

vagina.

       {¶40} In support of his sufficiency argument, appellant argues that, other than

H.R., the state did not present any physical evidence of abuse.            Appellant fails,

however, to cite any case law holding that such evidence was necessary to support his

convictions. This court, in State v. Henderson, 11th Dist. Trumbull No. 2001-T-0047,

2002-Ohio-6715, stated:      “When prosecuting an offender for rape, the state is not

required to provide physical evidence of penetration. Rather, all the state must do is

establish, beyond a reasonable doubt, that sexual conduct occurred. This may be

accomplished through either physical evidence and/or witness testimony.” Id. at ¶36.

Further, this court held, “[t]he victim’s testimony, if believed, [is] sufficient to convict

appellant of the charged crime.” Id. In any event, as Nurse Johnson testified, physical




                                            11
evidence would not have been expected here because H.R. did not report appellant

penetrated her vagina with his penis and his sexual abuse stopped about six months

before H.R. reported the abuse to Mother.

      {¶41} With respect to appellant’s manifest-weight argument, he fails to reference

any inconsistencies in H.R.’s testimony or between her testimony and that of the other

witnesses, which is the usual basis of a manifest-weight challenge. Instead, he argues

that the jury should have disregarded the state’s evidence in favor of his testimony, his

character witnesses, and his two hired experts. He argues that because H.R.’s doctors

and therapists testified that H.R. did not report the abuse to them while they were

treating her, this casts doubt on her credibility. However, appellant’s own expert, Jolie

Brams, psychologist, testified it is not unusual for a child sex abuse victim to delay

reporting the abuse for years and it is also not unusual for the child to first disclose

abuse to a trusted adult, such as Mother, rather than to a medical provider.

      {¶42} Further, the fact that appellant was able to hire two defense experts to

challenge H.R.’s credibility does not mean the jury was required to accept their

testimony.   The jury was entitled to consider the fact that neither witness ever

interviewed, examined, evaluated, or even met H.R., while the state’s experts

interviewed, evaluated, and/or treated her over an extended period of time. Moreover,

the state demonstrated on cross-examination serious weaknesses in the testimony of

both defense experts.     For example, Dr. Rosenberg said he is a pediatrician, not a

child psychologist, and does not treat children psychologically for sexual abuse. And,

Dr. Brams said she testifies primarily for the defense. Moreover, both witnesses said

the primary reason they doubted abuse occurred here was because none of the doctors




                                            12
H.R. had seen in the past made any reports of abuse. However, this is not surprising

since H.R. did not disclose the abuse to them. Moreover, as noted, Dr. Brams testified

that a child sex abuse victim’s delay in disclosing the abuse, even for years, is

consistent with child sexual abuse.

       {¶43} In finding appellant guilty, the jury obviously found H.R., Mother, and the

medical professionals presented by the state to be more credible than appellant and his

witnesses. As the finder of fact, this was the jury’s province and we cannot say this is

the exceptional case in which the jury clearly lost its way and created such a manifest

miscarriage of justice that appellant is entitled to a new trial.

       {¶44} We therefore hold appellant’s conviction was supported by sufficient

evidence and was not against the manifest weight of the evidence.

       {¶45} Appellant’s first and second assignments of error are related and thus

considered together. They allege:

       {¶46} “[1.] The trial court abused its discretion by violating the appellant’s right to

a fair trial under the Fifth and Fourteeth [sic] Amendment [sic] to the United States

Constitution and Section 16, Article I of the Ohio Constitution when it excluded part of

the expert opinion of Dr. Brams.

       {¶47} “[2.] The trial court committed plain error by violating the appellant’s right

to a fair trial under the Fifth and Fourteenth Amendments to the United States

Constitution and Section 16, Article I of the Ohio Constitution when it gave a curative

instruction that caused the jury to believe that they must disregard all of Dr. Bram’s [sic]

expert opinion.”




                                              13
       {¶48} We review the trial court’s ruling excluding evidence for an abuse of

discretion. State v. Dyer, 11th Dist. Lake No. 2015-L-121, 2017-Ohio-426, ¶40. This

court has stated:    “‘a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised

in line with the rules of procedure and evidence.” Id., quoting Rigby v. Lake Cty., 58

Ohio St.3d 269, 271 (1991).

       {¶49} In State v. Boston, 46 Ohio St.3d 108, 128 (1989), the Ohio Supreme

Court held that “an expert’s opinion testimony on whether there was sexual abuse

would aid the jurors in making their decision and is, therefore, admissible pursuant to

Evid.R. 702 and 704.” (Emphasis added.) However, “[a]n expert may not testify as to

the expert’s opinion of the veracity of the statements of a child declarant” who claims

she has been raped. (Emphasis added.) Id. at syllabus. In State v. Stowers, 81 Ohio

St.3d 260, 261 (1998), the Supreme Court clarified its syllabus in Boston, and held “[a]n

expert witness’s testimony that the behavior of an alleged child victim of sexual abuse is

consistent with the behavior observed in sexually abused children is admissible under

the Ohio Rules of Evidence.” Stowers at 261. “‘Most jurors would not be aware, in their

everyday experiences, of how sexually abused children might respond to abuse.’” Id. at

262, quoting Boston at 128. Such expert testimony is permitted “to counterbalance the

trier of fact’s natural tendency to assess * * * delayed disclosure as weighing against the

believability and truthfulness of the witness.” Stowers at 263.

       {¶50} Dr. Brams testified that, while she had never met or interviewed H.R., she

reviewed certain records regarding H.R. selected by defense counsel. As a result, she

testified about five findings she made, which she felt indicated H.R. was not credible.




                                            14
She found that: (1) H.R. had been treated by many providers over the years and they

did not report sexual abuse; (2) the providers diagnosed H.R. with mental health

problems, not sexual abuse; (3) H.R.’s young age when the abuse allegedly began

raised concerns about the accuracy of her memory; (4) H.R.’s disclosure of sexual

abuse lacked emotion; and (5) H.R. had external influences, including the need for

attention. Dr. Brams also testified, H.R. “has significant difficulties with reality testing

and truth telling * * *.” While this testimony came dangerously close to violating Boston

and Stowers, defense counsel was apparently not satisfied with it and actually asked his

witness to give an opinion about the credibility of H.R.’s allegations. In response, Dr.

Brams answered: “My opinion is that * * * this child’s statements regarding her father’s *

* * sexually abusing her are a result of her mental health concerns and developmental

experiences, rather than actual acts perpetrated by her father.”

       {¶51} Upon giving this final opinion, the trial court called counsel to the bench

and advised that Dr. Brams had improperly given an opinion about H.R.’s veracity. The

trial court called a recess, after which the court instructed the jury:

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

       {¶53} Contrary to appellant’s argument, the court struck Dr. Brams’ entire

answer, not just part of it. In arguing on appeal that Dr. Brams’ opinion was permissible,

appellant is asking this court to extend or ignore the rule in Boston and Stowers. He

argues defense counsel should have been allowed to call a hired expert to challenge




                                              15
the veracity of a victim in a child rape case, as opposed to the state calling an expert to

dispel a misconception that might weigh against the child-victim’s credibility, which is

the point of Stowers. Id. at 262-263. While some Districts have held that any error

resulting from a state expert’s suggestion that a child victim was credible was harmless

as long as the victim testified and was subject to cross, none of the cases cited by

appellant held that Boston and Stowers apply to a defense expert hired to challenge the

credibility of the child, especially where the expert never even met the child.

       {¶54} In any event, even if the court erred in striking Dr. Brams’ opinion, the

error would have been harmless in light of the trial court’s admission of Dr. Brams’ other

testimony, as outlined above, in which she indicated H.R. was not credible. Any such

error would also be harmless because, as appellant concedes, his other hired expert,

Dr. Rosenberg, testified H.R.’s allegations were not truthful.

       {¶55} We therefore hold the trial court did not abuse its discretion in striking the

opinion of Dr. Brams regarding H.R.’s credibility.

       {¶56} Next, appellant argues that the trial court’s instruction that the jury

disregard Dr. Brams’ opinion regarding H.R.’s veracity was vague because the court did

not sufficiently explain what opinion it was striking. As a result, appellant argues that

since Dr. Brams’ entire testimony was opinion, the jury may have concluded the court

was striking her entire testimony. However, as appellant concedes, trial counsel did not

object to this instruction and, thus, our review of this issue is for plain error only. In any

event, since the judge stated she was referring to the opinion provided by Dr. Brams

just before the break, we do not see how the jury could have reasonably understood

that the court was referring to anything other than the witness’ final opinion that H.R.




                                             16
was not credible. Further, defense counsel put the unstricken testimony of Dr. Brams

before the jury in closing argument.

       {¶57} We thus hold the court did not commit plain error in instructing the jury to

disregard Dr. Brams’ opinion on this issue.

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

       {¶59} “The appellant’s right to effective trial counsel under Sixth [sic]

Amendment to the United States Constitution was violated by trial counsel’s lack of

knowledge of recent case law pertaining to the admissibility of Dr. Bram’s [sic] expert

testimony, failing to object to the vagueness of the curative jury instruction pertaining to

Dr. Bram’s [sic] testimony & [sic] failing to confront the alleged victim with prior

statement recorded and referenced in motion for new trial.”

       {¶60} The standard of review for ineffective assistance of counsel was stated by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687

(1984), and has been repeatedly followed by this court. State v. McKinney, 11th Dist.

Trumbull No. 2007-T-0004, 2008-Ohio-3256, ¶187.

       {¶61} In order to support a claim of ineffective assistance of counsel, the

defendant must satisfy a two-prong test.           First, he must show that counsel’s

performance was deficient. Strickland, supra. This requires a showing that counsel

made errors so serious that counsel was not functioning as the counsel guaranteed the

defendant by the Sixth Amendment. Id. Second, the defendant must show the deficient

performance prejudiced the defense. In order to satisfy this prong, “[t]he defendant must

show that there is a reasonable probability that, but for counsel’s * * * errors, the result




                                              17
of the [trial] would have been different.” Id. at 694; accord State v. Bradley, 42 Ohio

St.3d 136 (1989), paragraph three of the syllabus.

       {¶62} Appellant argues his trial counsel was ineffective for three reasons. First,

he argues his counsel was unaware of case law regarding the admissibility of Dr.

Brams’ expert testimony. However, because defense counsel argued this testimony

was admissible and also because we hold the opinion at issue was properly stricken by

the court, counsel’s performance was not deficient.

       {¶63} Next, appellant argues counsel was deficient in not objecting to the vague

nature of the court’s jury instruction about Dr. Brams’ opinion testimony. However,

because we hold the trial court’s instruction was not vague, again, counsel was not

deficient.

       {¶64} Finally, appellant argues his trial counsel was ineffective in not cross-

examining H.R. regarding a recording she made for appellant telling him she loved him.

However, “[t]he scope of cross-examination falls within the ambit of trial strategy, and

debatable trial tactics do not establish ineffective assistance of counsel.”    State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶101.

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

ineffective.

       {¶66} For the reasons stated in this opinion, the assignments of error lack merit

and are overruled. It is the order and judgment of this court that the judgment of the

Portage County Court of Common Pleas is affirmed.




                                           18
DIANE V. GRENDELL, J., concurs,

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

                             ________________________


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


       {¶67} I agree with appellant that his convictions are based on insufficient

evidence, and are against the manifest weight of the evidence. I would reverse and

remand.

       {¶68} The only evidence against appellant is the testimony of H.R. herself, and

evidence that H.R.’s myriad behavior problems might be consistent with sex abuse.

Against this is appellant’s own testimony, and the testimony of his experts.               I

respectfully submit that Dr. Brams’ testimony is critical. The majority states, correctly,

that the balance of her work is done on behalf of defendants in cases involving alleged

sex abuse. The majority fails to acknowledge that some 30% of her work is done on

behalf of the courts directly. She is a nationally recognized expert in child sex abuse.

       {¶69} As the majority acknowledges, Dr. Brams identified several areas of

concern regarding H.R. The majority further acknowledges that the first was the fact

that no mental health professional treating H.R. had ever considered whether sex abuse

might be the cause of her behavior problems. But the majority fails to consider the

breadth of the treatment she has received. H.R. has been in counseling and treatment

constantly since she was three years old. She has worked with psychiatrists,

psychologists, and social workers.     All were mandated reporters of suspected sex

abuse. Nevertheless, during the seven years from the time she began treatment, until




                                            19
she disclosed her allegations to her mother, not one of these specialists even

considered exploring the issue of sex abuse. Dr. Brams testified this is extraordinary.

       {¶70} Having reviewed H.R.’s lengthy medical records, Dr. Brams noted that

H.R. has consistently expressed hatred toward her little sister, resulting in verbal and

extreme aggression, including kicking her sister in the head. H.R. has eating disorders.

She has no control of her emotions. She is unable to perceive social situations. Dr.

Brams testified H.R. appears to have cognitive discontrol, with mental instability

underlying all her actions.

       {¶71} The majority states that Dr. Brams testified that “H.R.’s young age when

the abuse allegedly began raised concerns about the accuracy of her memory.”              I

respectfully disagree with the majority’s characterization of Dr. Brams’ testimony on this

point. H.R. alleged the abuse began when she was three, or three and one half. Dr.

Brams testified that a three and one-half year old child likely would have no memory of

the type of abuse alleged. Believing this to be the most important part of Dr. Brams’

testimony, I quote it at length.

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

       {¶73} Dr. Brams: “Well, this is a topic, the topic of children’s memory has been

of concern to social scientists for about the past thirty-five, forty years. And there as a

voluminous amount of research on children’s memory which would take days testify

about. But in general, what the research shows is that prior to age about fifty-four to

fifty-eight months, that’s general, so you’re looking at about three and a half years old,

children really are unable to store meaningful memories over the course of time than

any verbal or story telling narrative to them. They may be able to store flashes of




                                            20
memory but they have to be memories that have significance. There has to be a central

significance, something that’s painful, something that’s frightening, something that is

very central, difference to their life, such as a car accident.

       {¶74} “You know Hayley was involved in a car accident and it would not be

surprising to me if she had some painful, frightening memories of that event, especially

because that was something that her mother and family it meant something to them and

they talked about that. That was a family event.

       {¶75} “* * *

       {¶76} Defense Counsel: “Doctor, at that age, and I don’t mean to be getting so

graphic here, but would the act of cunnilingus be a memory that a child would have?

       {¶77} Dr. Brams: “This is what I'm getting into.           So when we talk about

cunnilingus at age three and a half years old, it is not painful, it is nothing a child would

think would be sexual or criminal or anything because children at that age have been

diapered for years. They’ve had baby powder or Desitin or KY put onto their vulva.

Anyone’s who had children, we diaper them, they get diaper rash. I will be graphic

here, everybody who’s diapered a female child, has touched their vulva. It’s just part of

parenting and part of taking care of a child. So she’s had her vulva touched. If it is

cunnilingus, it’s not painful, there’s no reports that if this happened he scared her or

anything like that. The report is that he did cunnilingus supposedly when mom was

giving another child a bath or something in a hotel room or whatever.

       {¶78} “There is nothing in the literature that would substantiate the child would

remember this type of event at that young age. Because the research is abundantly




                                              21
clear that children of this age do not store memories unless they are central that they’re

frightening or something that’s repeated like a trip to Disney World.

       {¶79} “I mean, one of the things – all my friends take their grandchildren to

Disney World and they spend thousands and thousands of dollars. My advice is don’t

do that unless you’re doing that for yourself because the kids don’t remember. Because

they’re too young to remember that unless you repeat that over and over again.

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

memory.

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

-- ”

       {¶82} Dr. Brams: “Intercourse?”

       {¶83} Defense Counsel: “Intercourse.”

       {¶84} Dr. Brams: “Slapping someone around, hurting somebody, it's possible

she would have a flashable memory of that. If something was inserted into her, she

was frightened, if she was cut, if she was put into a closet, if she was scared, if

something terrible happened to her, there is a possibility at that age, and again we’re

getting into that fifty-four, fifty-eight months, that she may have a memory of that.

       {¶85} “But cunnilingus in that situation, based scientifically with a reasonable

psychological possibility, anything is possible, but when you’re looking a psychological

scientific probability, it is not probable that she would have remembered that.”

(Emphasis added)




                                             22
       {¶86} I further quote from near the end of Dr. Brams’ testimony, when she made

her last finding regarding H.R. The majority characterizes this as a finding that “H.R.

had external influences.” I think the testimony goes much further.

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

       {¶88} Dr. Brams: “Well, my next finding is just again about her perceptions. I

don’t want to call [H.R.] a liar, that’s not my testimony today. My testimony is not that

this child lies, that’s inappropriate to say. And it’s inappropriate to say that she's a bad

child or that she's a deviant child, that is not my testimony. But this child’s mental

health, the structure of her mental health is that she has a difficult time perceiving truth

from lies, facts from fiction. And my concern is that her tendency to say what she

wants, that a boy kissed her on the thigh and he didn’t, she kissed a boy on the lips and

she didn’t, she cut herself because of Demi Lovato and she didn’t.             She told one

therapist that she never tells the truth.

       {¶89} “This is a continuing personality pattern with her. She’s too young to say

her personality’s formulated and you hope it’ll change. But there’s some underlying

issues with her about telling the truth. And it’s not that she is a purposeful terrible little

girl. It’s a very sad situation. But in terms of forensic court related issue, I have to go

on empathy for [H.R.] and look at the facts of the matter. And the facts of the matter

are, does she have the mental structure, the personality structure to be able to be

truthful and to understand the significance of what she’s saying. And my concern is if

you look at her from three years old to the point in time that I stopped looking at the

records, my professional conclusion is that she has significant difficulties with reality




                                             23
testing and truth telling that would raise significant red flags about her statements.”

(Emphasis added.)

       {¶90} In sum, Dr. Brams found that H.R. was never even considered a potential

victim by any of the many mental health professionals who treated her throughout the

years. Dr. Brams found she had memories from a lengthy period of her short life that

she was unlikely to have. Dr. Brams found her mental structure to be such as to make it

difficult for her to distinguish fantasy or wish from fact.

       {¶91} “A challenge to the sufficiency of the evidence tests whether the state has

properly discharged its burden to produce competent, probative, evidence on each

element of the offense charged.”         (Emphasis added.)     State v. Petefish, 7th Dist.

Mahoning No. 10 MA 78, 2011-Ohio-6367, ¶16.               H.R.’s testimony is the sum and

substance of the state’s case. Therefore, the question presented in this case is not

H.R.’s veracity: it is whether she was competent to testify.        Based on Dr. Brams’

testimony, she was not. Thus, I would find the state presented insufficient evidence to

support appellant’s convictions. For the same reasons, I would find the convictions

against the manifest weight of the evidence.

       {¶92} I respectfully dissent.




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