[Cite as State v. Boehme, 2017-Ohio-8246.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27255
                                                   :
 v.                                                :   Trial Court Case No. 15-CR-1221
                                                   :
 JONATHAN C. BOEHME, JR.                           :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 20th day of October, 2017.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 61 N. Dixie Drive, Suite B,
Vandalia, Ohio 45377
     Attorney for Defendant-Appellant

                                             .............

HALL, P.J.
                                                                                        -2-




         {¶ 1} Jonathan Boehme appeals from his convictions for rape and gross sexual

imposition. Finding no error, we affirm.

                                       I. Background

         {¶ 2} In May 2015, Boehme was indicted on three counts of rape of a child under

thirteen years of age, one count of attempted rape of a child under thirteen, and one count

of gross sexual imposition. Boehme filed a number of pretrial motions, including one that

asked the trial court to hold a Daubert Hearing regarding the testimony of child

psychologist Dr. Brenda Joyce Miceli, who was expected to testify about the behavioral

dynamics of child sexual abuse victims. The trial court overruled the motion.

         {¶ 3} At the trial, “Jane”1 testified that in the summer of 2012, when she was 11

years old, Boehme, her mother’s boyfriend, moved into her home. Within a month, Jane

said, Boehme began sexually molesting her. The first time happened early one morning

before school while Jane was lying in bed. Boehme walked into her bedroom, and she

thought that he was coming to get her clothes to put in the laundry. But Boehme got into

her bed, pulled down her underwear, and pushed his fingers into her vagina. He stopped

when Jane’s younger brother knocked on her bedroom door, and then left the room.

         {¶ 4} Jane testified that the abuse started happening two or three times a week,

usually in the morning, usually in her bedroom, and often on Saturdays, when her mother

was at work. She remembered one incident in particular that occurred in her mother’s

(and Boehme’s) bedroom. Jane had been sick over night and was in her mother’s bed

sleeping. Her mother was sleeping in a recliner in the room (where she often slept


1   We use this pseudonym for the victim to protect her identity.
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because lying in bed hurt her back). Boehme was in the bed too. Jane did not think that

he would “try anything” with her mother in the room. But she woke up to Boehme’s fingers

inside her underwear and inside the folds of her “private area.” When Jane rolled over,

he stopped. She described another incident when she was in the sixth grade. She was

laying in her bed when Boehme came into her room and pushed a pillow against her face.

He then removed the pillow and held her hands down as he stuck his penis in her mouth.

Jane began crying and kicking, and Boehme got angry and left. She then went into the

bathroom to throw up and brush her teeth. Jane also testified that, beginning in 2015,

Boehme would hold her down or place a pillow over her face while he rubbed his penis

between her upper thighs until he ejaculated. When he was done, he would use a towel

to wipe off her legs.

       {¶ 5} Finally, in March 2015, Jane told a friend of hers what was going on, and that

friend encouraged Jane to tell her mother. Jane did so in a letter, and immediately after

reading the letter, her mother kicked Boehme out of the house. A few days later, Jane

walked to the Brookville Police Department and reported the abuse. Jane was soon

interviewed at CARE House (an advocacy center for abused children) and examined at

Dayton Children’s Hospital.

       {¶ 6} During the investigation, police collected the bedding from Jane’s bed and

sent it to the Miami Valley Regional Crime Laboratory for testing. A forensic scientist found

five separate semen stains on the bed sheets. At trial, the scientist testified that, based

on DNA testing, Boehme was the source of three of the stains. A DNA profile could not

be obtained from one of the stains. And while the scientist could not be certain that

Boehme was the source of the other stain, the stain’s DNA profile is consistent with
                                                                                           -4-


Boehme’s DNA.

       {¶ 7} On Boehme’s motion, the trial court acquitted him of attempted rape. The jury

found him guilty on the remaining three counts of rape and one count of gross sexual

imposition. Boehme was sentenced to three concurrent prison terms of 10 years to life

and a consecutive 18-month term for gross sexual imposition.

       {¶ 8} Boehme appealed.

                                        II. Analysis

       {¶ 9} Boehme presents three assignments of error. The first challenges the trial

court’s overruling of his motion for a Daubert hearing. The second presents a manifest-

weight-of-the-evidence challenge. And the third presents a claim for ineffective assistance

of counsel.

                                 A. The Daubert challenge

       {¶ 10} The first assignment of error alleges that the trial court erred by denying

Boehme’s request for a hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), concerning Dr. Miceli’s prospective

testimony.

       {¶ 11} “A Daubert hearing is a prospective examination of the admissibility of

expert opinion to determine whether the basis for the testimony is scientifically valid and

reliable.” State v. Heisey, 2015-Ohio-4610, 48 N.E.3d 157, ¶ 39 (2d Dist.). And “ ‘a trial

court’s decision whether or not to hold a Daubert hearing is a matter within its sound

discretion, and the court’s decision is not to be overturned unless it abuses its discretion.’

” Id. at ¶ 40, quoting State v. Shalash, 2014-Ohio-2584, 13 N.E.3d 1202, ¶ 42 (12th Dist.).

       {¶ 12} Boehme does not dispute that Dr. Miceli is an expert and that she may
                                                                                          -5-

testify about her clinical experience. But he says that a Daubert hearing should have been

held so that he could challenge the research studies on which her expert opinions are

based to determine whether the studies conform to established standards in the field of

psychological study. And Boehme says that he should have had an opportunity to ask Dr.

Miceli whether she has ever found that a victim’s behavior does not correlate with sexual

abuse.

      {¶ 13} A challenge that the basis of Dr. Miceli’s expert opinions is not scientifically

valid and reliable is only speculation by Boehme. He gives no reason to think that any

research study on which her opinions are based is so fundamentally flawed as to call into

question her opinions on the behavioral characteristics of sexually abused children.

Boehme had a court-appointed forensic psychologist to help him. If any study cited by Dr.

Miceli was so flawed, Boehme could have challenged it during his cross-examination of

her. Boehme could also have called his expert to refute her expert opinions. But he didn’t.

      {¶ 14} In Heisey, the defendant moved to exclude Dr. Miceli’s testimony and asked

for a Daubert hearing on the matter. While that defendant admitted that Dr. Miceli was

qualified to testify as an expert with respect to abused children, he pointed out that the

victim in that case was an adult. We agreed with the trial court that there was no basis to

exclude or limit her testimony. We noted that we have “previously recognized her

‘extensive formal education and broad, deep experience with sexually abused children,’

” and we concluded that the trial court did not abuse its discretion by denying

a Daubert hearing. Heisey, 2015-Ohio-4610, 48 N.E.3d 157, at ¶ 41, quoting State v.

Cox, 2d Dist. Montgomery No. 25477, 2013-Ohio-4941, ¶ 54. Likewise, on the record

here, we see nothing unreasonable about the trial court denying Boehme’s request for a
                                                                                          -6-

Daubert hearing.

       {¶ 15} The first assignment of error is overruled.

                         B. The manifest weight of the evidence

       {¶ 16} The second assignment of error alleges that the convictions are against the

manifest weight of the evidence.

       {¶ 17} When presented with a manifest-weight challenge, an appellate court must

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses and determine “[w]hether in resolving conflicts in the 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 (1st Dist.1983). Boehme argues that the jury lost its way by finding Jane

credible, based on discrepancies between her trial testimony and statements that she

made during her CARE House interview.

       {¶ 18} “ ‘A conviction is not against the manifest weight of the evidence solely

because the jury heard inconsistent testimony.’ ” State v. Robinson, 2d Dist. Montgomery

No. 17393, 2001 WL 62569, *9 (Jan. 26, 2001), quoting State v. McVay, 10th Dist.

Franklin No. 98AP-1246, 1999 WL 770950, *5 (Sept. 30, 1999); State v. Royster, 2d Dist.

Montgomery No. 25870, 2015-Ohio-3608, ¶ 43 (quoting the same). A witness’s credibility

is a question primarily for the jury. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. This is because it is the jury who “is in the best

position to determine the credibility of each witness by taking into account

inconsistencies, as well as the witness’ manner and demeanor.” State v. Pheanis, 2d Dist.
                                                                                            -7-


Montgomery No. 26560, 2015-Ohio-5015, ¶ 36. For this reason, “we give substantial

deference to a jury’s decision whether, and to what extent, to believe a witness.” State v.

Wayne, 2d Dist. Montgomery No. 25243, 2013-Ohio-5060, ¶11. And we will

not substitute our judgment for that of the jury “unless it is patently apparent that the trier

of facts lost its way in arriving at its verdict.” State v. Harris, 2d Dist. Montgomery No.

23562, 2010-Ohio-960, ¶ 9.

       {¶ 19} Boehme cites three discrepancies between Jane’s trial testimony and

statements that she made during the CARE House interview. First, she testified at trial

that the first time the abuse occurred was in her bedroom. On cross-examination, defense

counsel played a recording of her interview in which she seems to be saying that the first

time was in her mother’s bedroom. Defense counsel asked her, “Is that a different time

than you’ve described here today?” (Tr. 549). Jane explained that “yes, it is but it was not

the first time. What I was talking about in that clip was not the first time.” (Id.). She was

adamant that the first incident with Boehme occurred in her bedroom, like she testified.

Second, Jane testified at trial that the abuse happened on Saturdays and other weekdays.

She said during the interview only that it happened every Saturday. Defense counsel said

to her, “You didn’t say it happened on Saturdays and other days. You said it happened

on every Saturday morning for three years.” (Id. at 547). Jane then explained, “Yes, but

that—I was implying when I stated that that it happened on Saturdays. That doesn’t mean

that it just happened on Saturday. I never said that it just happened on Saturday.” (Id.).

So, the victim explained, the prior inconsistent statement may not be inconsistent at all.

Third, Jane testified at trial that after Boehme ejaculated, he wiped off her leg. But during

the CARE House interview, she seemed to say that she wiped off herself.
                                                                                         -8-


       {¶ 20} “ ‘Credibility determinations on conflicting testimony are issues primarily

reserved to the trier-of-fact to be second-guessed only in the most exceptional case.’ ”

Robinson at *9, quoting McVay at *5. The problems with Jane’s testimony cited by

Boehme fall short of being clear contradictions, because it is not always entirely clear

precisely what her interview answers refer to. Regardless, the discrepancies were

explored on cross-examination, so the jury heard the problems and could weigh Jane’s

credibility accordingly. Also, the discrepancies do not directly concern the elements of the

rape and gross-sexual-imposition offenses. That is to say, regardless where the first time

occurred, how often it occurred, or who cleaned up, the evidence establishes at least

three incidents of rape and one instance of gross sexual imposition. We do not think that

the discrepancies make it patently apparent that the jury lost its way in arriving at the

verdicts.

       {¶ 21} Boehme also argues that the jury misused the semen-stain evidence. He

says that that evidence cannot be considered for the rape offenses, because the bedding

was given to Jane after the rapes were alleged to have occurred. The evidence shows

that Jane was given the bed sheets as a Christmas gift in 2014, which was after she

turned 13 years old. Jane testified that the rapes included in the date range of the

indictment occurred when she was under 13. The semen stains, then, directly support her

testimony that Boehme engaged in sexual activity in her bed when she was a minor, a

fact that is strongly corroborative, and we believable admissible, in regard to the earlier

sexual assaults. She also testified Boehme rubbed his penis on her upper thighs until he

ejaculated, the basis of the gross-sexual-imposition charge, which she said was the

sexual activity that began when she was 13. Boehme asserts that the jury improperly
                                                                                         -9-


used the semen-stain evidence to find him guilty of the rape charges too. Whether the

jury misused the semen-stain evidence is purely speculative. There is no evidence in the

record that supports this claim.

       {¶ 22} The second assignment of error is overruled.

                           C. Ineffective assistance of counsel

       {¶ 23} The third assignment of error alleges that trial counsel was ineffective for

not asking the trial court to sever the rape charges from the gross-sexual-imposition

charge. He says that evidence that his semen was found on Jane’s bed sheets was only

relevant to the gross-sexual-imposition charge and would not have been admissible at a

trial on just the rape charges. Boehme says that the semen-stain evidence prejudiced him

because the jury could have improperly used it to find him guilty of the rape offenses too.

       {¶ 24} “To establish ineffective assistance, [Boehme] must show (1) deficient

performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel’s errors, the proceeding’s result would have been different.” State v. Martin, Ohio

Sup. Ct. Slip Opinion No. 2017-Ohio-7556, ¶ 48, citing Strickland v. Washington, 466 U.S.

668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.

       {¶ 25} “Under Crim.R. 8(A), joinder of offenses is proper where the offenses are

‘based on the same act or transaction.’ The law favors joining multiple criminal offenses

in a single trial.” (Citation omitted.) State v. Coleman, 85 Ohio St.3d 129, 136, 707 N.E.2d

476 (1999). But under Crim.R. 14, “[i]f it appears that a defendant * * * is prejudiced by a

joinder,” a trial court may grant a severance. “The defendant * * * bears the burden of
                                                                                        -10-

proving prejudice * * *.” State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824

N.E.2d 959, ¶ 29, citing State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981),

syllabus. Boehme does not contend that the offenses were improperly joined, and it is

evident that the offenses are part of the same course of criminal conduct. His argument

is that the gross-sexual-imposition offense should have been severed because of

prejudice. Boehme says that the semen-stain evidence could properly be used only to

find him guilty of gross sexual imposition but that the jury could have used it to find him

guilty of rape.

       {¶ 26} “A defendant normally cannot establish prejudice * * * where either (1) the

evidence of each of the crimes joined at trial is simple and direct or (2) the State could

have introduced evidence of one offense in a separate trial of the other offense had

severance been granted.” State v. Ward, 2d Dist. Montgomery No. 26773, 2016-Ohio-

5354, ¶ 16, citing State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991); see

also Brinkley at ¶ 30. The evidence presented at trial here to establish each of Boehme’s

offenses was simple and direct. Jane’s testimony clearly delineates each offense. The

first rape occurred when Boehme put his fingers inside her. The second rape occurred

when he put his penis in her mouth. And the third rape occurred in her mother’s bed when

Boehme again put his fingers inside her. Only the first two rapes occurred in Jane’s bed,

and she did not suggest that Boehme ejaculated during either. She also testified that both

rapes occurred when she was 11 or 12 years old. By contrast, it is clear from Jane’s

testimony that the event underlying the gross-sexual-imposition charge—Boehme

rubbing his penis on her upper thighs—occurred in her bed when she was 13. And it is

clear that he ejaculated—hence the semen stains found on her bed sheets. And as we
                                                                                        -11-


have already noted, nothing in the record suggests that the jury used the semen-stain

evidence improperly. Because the evidence of each crime is simple and direct, we think

that counsel’s decision to not request severance was reasonable.

       {¶ 27} Moreover, Boehme was not prejudiced by counsel’s decision. Even if

counsel had asked to sever the charges and the trial court had agreed and the court had

excluded the semen-stain evidence from the rape trial, the jury almost surely would still

have found him guilty of the three rape charges on the strength of Jane’s and the other

witnesses’ testimony which was essentially uncontradicted.

       {¶ 28} Boehme’s ineffective-assistance argument lacks merit, as it fails to

establish either deficient performance or prejudice.

       {¶ 29} The third assignment of error is overruled.

                                     III. Conclusion

       {¶ 30} We have overruled all of the assignments of error. The trial court’s judgment

is affirmed.

                                     .............



DONOVAN, J. and TUCKER, J., concur.


Copies mailed to:

Mathias H. Heck
Andrew T. French
Enrique G. Rivera-Cerezo
Hon. Dennis J. Langer
