         [Cite as State v. Kane, 2012-Ohio-4044.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-110629
                                                        TRIAL NO. B-1007957
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

CISSE KANE,                                         :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 7, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Presiding Judge.

        {¶1}     Cisse Kane appeals his conviction for gross sexual imposition. We

conclude that his assignments of error do not have merit, so we affirm the judgment

of the trial court.

        {¶2}     Kane was indicted for two counts of rape, two counts of sexual

battery, and two counts of gross sexual imposition. The case was tried to a jury.

Prior to opening statements, the state dismissed one rape count, one sexual-battery

count, and two gross-sexual-imposition counts.

        {¶3}     At trial, the state presented the testimony of C.B., a twenty-three-

year-old woman who had spinal muscular atrophy. Due to the disease, C.B. was able

to move only her toes and fingers. Kane was a nurse who provided C.B. home care

during the night. According to C.B., on November 24, she had awoken in the early

morning hours and had felt Kane massaging her shoulders. While Kane massaged

her shoulders, C.B. had felt something like skin touching her in the vaginal area. C.B.

also testified that when she had awoken, she had been perpendicular on her bed with

her legs hanging off of her bed. C.B. testified that it was unusual for her to be in that

position because it was not safe for her, given her medical condition.

        {¶4}     C.B. stated that when she had asked Kane what he was doing, he had

responded that he was giving her a massage and that he was changing her Attends

diaper. According to C.B., Kane’s claim that he had been changing her diaper was

incredible as his hands were on her shoulders at the time       C.B. testified that Kane

then used a wet wipe to wipe her vaginal area very roughly. She also testified that

she saw him making a motion like he was pulling his pants up.




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       {¶5}    After Kane finished his shift, C.B. told another nurse what had

happened. The nurse, Sandra Yoder, looked in C.B.’s diaper and found pubic hair

that she believed was not C.B.’s. Yoder took C.B. to Cincinnati Children’s Hospital,

where she was referred to the Mayerson Center.

       {¶6}    Cecilia Freihofer interviewed C.B. at the Mayerson Center.         After

hearing C.B.’s description of what had happened, Freihofer referred her for a medical

exam. No physical evidence of sexual trauma was discovered. And the pubic hairs

that were removed from C.B.’s diaper were tested and determined to be from C.B.

       {¶7}    At the conclusion of the trial, the jury found Kane not guilty of rape

but guilty of the lesser-included offense of gross sexual imposition. The remaining

counts were dismissed. The trial court sentenced Kane to 18 months’ incarceration.

       {¶8}    In his first assignment of error, Kane asserts that the trial court erred

when it refused to allow him to call a character witness and then refused to allow him

to proffer the character witness’s testimony.

       {¶9}    Kane called Blake Jones to testify on his behalf.        Jones was the

recruiter for Kane’s employer. When defense counsel asked Jones about the criminal

background check that was conducted prior to Kane’s employment, the state

objected. The trial court sustained the state’s objection.

       {¶10}   Kane acknowledges that character evidence is generally not

admissible “for the purpose of proving action in conformity therewith on a particular

occasion.” Evid.R. 404(A). But he contends that Jones’s testimony was admissible

under Evid.R. 404(A)(1), which provides that “[e]vidence of a pertinent trait of

character offered by an accused * * * is admissible.” We conclude that Kane’s past

work history and lack of criminal record were not relevant to whether he had had

sexual contact with C.B. We also conclude that Kane was provided an adequate



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opportunity to proffer the testimony of Jones, so that we were able to review the trial

court’s ruling. The first assignment of error is overruled.

       {¶11}   In his second assignment of error, Kane asserts that the trial court

erred when it allowed the introduction of hearsay statements made by C.B. through

other witnesses.

       {¶12}   Kane objected to Detective Joseph Middendorf’s testimony. During

direct examination, Middendorf testified that he had observed Freihofer’s interview

with C.B. Middendorf stated that he did not believe that what C.B. was telling

Freihofer was the result of a hallucination or C.B.’s fevered imagination. During

cross-examination, defense counsel suggested that Middendorf did not have a basis

upon which to judge C.B.’s demeanor and questioned whether Middendorf knew that

C.B. was a drama student. On redirect, the state asked Middendorf to read his report

about what C.B. had said during the interview. The trial court overruled Kane’s

objection to Middendorf’s testimony during redirect.

       {¶13}   The state argues that the testimony was admissible under Evid.R.

801(D)(1)(b), which provides that “[a] statement is not hearsay if * * * [t]he declarant

testifies at trial * * * and is subject to cross-examination concerning the statement

and the statement is * * * consistent with declarant’s testimony and is offered to

rebut an express or implied charge against declarant of recent fabrication or

improper influence or motive[.]”

       {¶14}   “Ohio courts have interpreted this rule to apply only to those prior

consistent statements that have preceded prior inconsistent statements or that have

been made before any motive to falsify testimony has arisen.” State v. Strutz, 1st

Dist. Nos. C-100334 and C-100335, 2011-Ohio-3660, ¶ 12, citing State v. Burrell, 1st

Dist. No. C-030802, 2005-Ohio-34, ¶ 17. Here, Kane did not suggest that C.B. had



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recently fabricated her version of what had happened. Rather, he implied that C.B.’s

recollection of what had happened was either the result of a dreamlike hallucination

or a dramatic story made up by C.B. from the beginning. We conclude, therefore,

that the trial court erred when it allowed Middendorf to testify about C.B.’s

statements made during the Mayerson interview. But we further conclude that this

error was harmless in light of the other testimony in the trial and because Kane did

not dispute that C.B. had told the version of events reflected in Middendorf’s report.

Rather, his defense focused on her motivation for making the allegations.

       {¶15}   Kane also argues in this assignment that the trial court should not

have allowed Freihofer to testify about C.B.’s statements made during the same

interview. But we conclude that the testimony was admissible under Evid.R. 803(4),

because C.B.’s statements made to Freihofer were made for medical diagnosis and

treatment. See State v. Daniels, 1st Dist. No. C-090566, 2010-Ohio-5258, ¶ 14. We

further conclude that the admission of the recording of the interview and Freihofer’s

written report, to which Kane did not object at trial, did not arise to plain error.

Crim.R. 52(B). The second assignment of error is overruled.

       {¶16}   Kane’s third assignment of error is that his conviction was based on

insufficient evidence and was against the manifest weight of the evidence. When an

appellant challenges the sufficiency of the evidence, we must determine whether the

state presented adequate evidence on each element of the offense.            State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On the other hand,

when reviewing whether a judgment is against the manifest weight of the evidence,

we must determine whether the jury clearly lost its way and created a manifest

miscarriage of justice. Id. at 387.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17}   Kane was convicted of gross sexual imposition in violation of R.C.

2907.05(A)(5). The statute provides that “[n]o person shall have sexual contact with

another, not the spouse of the offender * * * when [t]he ability of the other person to

resist or consent * * * is substantially impaired because of a mental or physical

condition.” R.C. 2907.05(A)(5). We conclude that the state presented sufficient

evidence of all the elements of the offense. Kane contends that C.B.’s testimony was

not to be believed because she was under the influence of various medications and

alcohol at the time. Kane also emphasizes that no physical evidence of sexual contact

was found. We conclude that the jury was in the best position to determine the

credibility of all the witnesses and to assess the impact of the lack of physical

evidence. We are unable to conclude that the jury lost its way when it found Kane

guilty. The third assignment of error is overruled.

       {¶18}   In his fourth assignment of error, Kane asserts that the trial court

erred when it refused to order a presentence investigation. Crim.R. 32.2 provides

that “[i]n felony cases the court shall * * * order a presentence investigation and

report before imposing community control sanctions or granting probation.” Here,

the trial court imposed a prison term, so it was not required to order a presentence

investigation prior to sentencing. State v. Lattimore, 1st Dist. No. C-100675, 2011-

Ohio-2863, ¶ 11. Also, when the trial court indicated that it would not order a

presentence investigation, Kane did not object, so any error is waived. Id. The

fourth assignment of error is overruled.

       {¶19}   Kane’s final assignment of error is that the trial court erred in

sentencing him to 18 months’ incarceration. Our review of the sentence has two

parts. First, we must determine whether the sentence was contrary to law. State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 14. Then, if the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



sentence was not contrary to law, we must review the sentence to determine whether

the trial court abused its discretion. Id. at ¶ 17. Kane’s sentence fell within the

applicable ranges for the offense for which he was convicted. R.C. 2907.05(C)(1);

R.C. 2929.14. We conclude that it was not contrary to law. And we are unable to

conclude that the trial court abused its discretion in imposing the sentence. The fifth

assignment of error is overruled.

       {¶20}    Therefore, we affirm the judgment of the trial court.

                                                                  Judgment affirmed.


H ENDON and D INKELACKER , JJ., concur.


Please note:
       The court has recorded its own entry this date.




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