         [Cite as State v. See, 2020-Ohio-2923.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NOS. C-190251
                                                                   C-190252
        Plaintiff-Appellee,                        :   TRIAL NOS. B-1706834
                                                                   B-1803242A

  vs.                                              :
                                                         O P I N I O N.
HERMAN SEE,                                        :

    Defendant-Appellant.                           :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: May 13, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

       {¶1}    This case involves the sexual abuse of three children over the course of

15 years. The victims were biological or stepdaughters of the defendant-appellant

Herman See and his codefendant and girlfriend Angela Stites. The charges span two

indictments and include multiple counts of rape, sexual battery, unlawful sexual

conduct with a minor, and gross sexual imposition. After a jury trial, See was

convicted and sentenced to four consecutive life terms, to be served consecutively to

221 years in prison. He now appeals.

       {¶2}   In six assignments of error, See argues that: (1) the trial court erred in

admitting testimony regarding a victim’s post-rape psychological issues; (2) the trial

court erred in admitting hearsay testimony; (3) the convictions were based upon

insufficient evidence; (4) the convictions were against the manifest weight of the

evidence; (5) he was denied effective assistance of counsel; and (6) his cumulative

sentence amounted to cruel and unusual punishment.

                                Factual Background


       {¶3}   See and Stites have a total of six children/stepchildren. The victims of

See’s sexual abuse are K.S., S.S., and E.M., who were all children when the abuse

occurred, but adults by the time they testified at See’s trial. K.S. is See’s biological

daughter with Stites. S.S. is See’s biological daughter with another woman. E.M. is

Stites’s biological daughter with another man.

       {¶4}   The case numbered B-1706834 (“B17”) concerned the sexual abuse of

K.S. K.S. testified that See began to abuse her when she was between five and seven

years old, which was between 2004 and 2006. K.S. testified that the abuse usually

occurred during the night. See would take her out of the bedroom she shared with



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                       OHIO FIRST DISTRICT COURT OF APPEALS



two of her siblings and take her into his bedroom, where he would perform sexual

acts with her, including cunnilingus, fellatio, vaginal intercourse, and digital

penetration. She testified that “it happened so often that all the memories are almost

all the same.” The abuse continued until 2015, when K.S. became pregnant. The

father of the baby was her boyfriend, C.D. K.S. eventually moved out of the house

and moved in with C.D., at which point she told C.D. about her relationship with See.

She testified that she did not realize that what See had been doing was wrong until

she talked with C.D. about it. C.D. explained to her that what See had done was rape

and sexual abuse, and was not what fathers did to their daughters. K.S. testified that

she then disclosed See’s abuse to the school resource officer at her school. The case

was assigned to Detective Kilby of the Norwood Police Department, who realized

during his investigation that K.S.’s sister, E.M., had made similar allegations of abuse

against See in 2012.

       {¶5}    The case numbered B-1803242A (“B18”) concerned the sexual abuse

of S.S. and E.M. S.S. testified that she would spend summers with See, and the rest

of the year with her birth mother, D.S., in Florida. She testified that the first instance

of abuse happened in the summer of 2001, when she was approximately eight years

old. S.S. testified that See coaxed her into performing fellatio on him in exchange for

a lollipop. She testified that during that same incident, See directed E.M. to perform

fellatio on him, digitally penetrated E.M., and then directed S.S. and E.M. to digitally

penetrate each other. S.S. testified that when she returned to Florida at the end of

summer 2001, she told D.S. that See had been “kissing her and touching on her.”

D.S. called See on the phone and “yelled” at him, and then reported the abuse to

police in Florida. S.S. testified that at some point before she was interviewed by




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                     OHIO FIRST DISTRICT COURT OF APPEALS



police, she received a phone call from See. He asked her if she “really wanted to put

him in prison for the rest of his life.” S.S. testified that she was scared, so she told

her mother and the police that it had all been a dream. Every summer from 2001, up

to and including 2005, S.S.’s mother continued to send her to visit See, and See

committed sexual acts with her, including vaginal intercourse. S.S. testified that in

the summer of 2005, she returned home to Florida early after telling See that she did

not want to have sex with him anymore. She did not stay at See’s house again.

       {¶6}   E.M. testified that she lived with her biological father B.M. and

stepmother C.M., but had visitations with See and Stites on weekends and during the

summer. E.M. testified that in the summer of 2001 she was three or four years old

when See coaxed her and S.S. into performing fellatio on him in exchange for a

lollipop. See’s sexual abuse was then a regular occurrence whenever E.M. was at his

house. When E.M. was asked at trial to estimate how many times See abused her

between the ages of seven and ten, she testified, “I couldn’t give you a ballpark

because it happened so regularly,” but, it happened “at least a hundred times.”

       {¶7}    E.M. testified that See first had vaginal intercourse with her when she

was 14 years old. She testified that he had vaginal intercourse with her 20-50 times

when she was between 14 and 15 years old. The sexual abuse stopped January 1,

2012. The date stood out to E.M. because one of her friends had died the night

before in a traffic accident, and See had vaginal intercourse with her to “cheer her

up.” She testified that was the last time he had sex with her. In 2012, E.M. told her

father, B.M., that See had abused her. B.M. informed the police. As part of the

police investigation, K.S. and S.S. were interviewed by social workers from the

Mayerson Center about whether See had ever sexually abused either of them. Both




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                      OHIO FIRST DISTRICT COURT OF APPEALS



K.S. and S.S. denied that they had ever been abused. A grand jury was convened, but

declined to indict See or Stites.

       {¶8}    The defense presented the testimony of several family members and

friends, including siblings of the victims. In general, these witnesses testified that

they never saw any signs of abuse, the victims never talked about any abuse growing

up, and that because the houses the family lived in over the years were small and

contained a lot of people, See would not have had the privacy necessary to commit

such sexual abuse without others knowing.

       {¶9}    See’s codefendant Stites also testified. Stites testified that See never

sexually abused any of the victims. Stites explained why she believed the victims

would fabricate the abuse allegations. She testified that after K.S. gave birth in 2015,

Stites and See became the primary caretakers of the baby because K.S. was unable to

properly care for the baby. After K.S. told them that she and the baby were moving

out of the house, Stites told K.S. that she was going to file for custody. Although she

never actually followed through, Stites testified that her threat to file for custody is

what caused K.S. to falsely claim that See had abused her.            Regarding S.S.’s

allegations, Stites testified that S.S. never forgave her for breaking up See’s marriage

to S.S.’s biological mother.        Stites also testified about E.M.’s behavioral and

psychological problems and how E.M. always rebuffed their attempts to discipline

her.

       {¶10} For ease of discussion, we first address See’s third and fourth

assignments of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                           Third Assignment of Error

       {¶11} In his third assignment of error, See argues that his convictions were

based upon insufficient evidence. The test for determining if the evidence was

sufficient to sustain a conviction is whether “after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements of

the offense beyond a reasonable doubt.” State v. MacDonald, 1st Dist. Hamilton No.

C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983). It is a question of law for the court to determine, the

court is not to weigh the evidence. MacDonald at ¶ 12.

       {¶12} See was convicted of 30 offenses over two indictments.            The B17

indictment charged See with nine offenses against K.S., including sexual battery,

unlawful sexual conduct with a minor, and rape.

       {¶13} The state alleged two types of sexual battery. Under R.C.

2907.03(A)(1), the state was required to prove that See purposely engaged in sexual

conduct with K.S., and knowingly, and by means that would prevent resistance by a

person of ordinary resolution, coerced K.S. to submit to such sexual conduct. Under

R.C. 2907.03(A)(5), the state was required to prove that See purposely engaged in

sexual conduct with K.S., and See was the natural parent, or adoptive parent, or

stepparent, or guardian, or custodian, or person in loco parentis of K.S.

       {¶14} To prove unlawful sexual conduct with a minor, the state was required

to prove that See purposely engaged in sexual conduct with K.S., that See knew that

K.S. was 13 years of age or older, but less than 16 years of age, or See was reckless in




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                       OHIO FIRST DISTRICT COURT OF APPEALS



that regard, and at the time of the offense See was ten or more years older than K.S.

See R.C. 2907.04(A).

       {¶15} To prove rape, the state was required to prove that See engaged in

sexual conduct with K.S., who was under 13 years of age, whether or not See knew

her age. See R.C. 2907.02(A)(1)(b). Some of the counts for rape allege that K.S. was

less than ten years of age for purposes of sentencing. See R.C. 2907.02(B).

       {¶16} See does not dispute his status as either father or stepfather to all of

the victims. He also does not dispute the ages of the victims at the time of the

offenses.   His main argument regarding sufficiency is that there was a lack of

specificity in the victims’ testimony as to when the offenses occurred and what sexual

activity occurred.

       {¶17} Ordinarily, precise times and dates are not essential elements of

offenses. State v. Rucker 1st Dist. Hamilton No. C-110082, 2012-Ohio-185, ¶ 42,

citing State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). “In a criminal

charge the exact date and time are immaterial unless in the nature of the offense

exactness of time is essential. It is sufficient to prove the alleged offense at or about

the time charged.” Sellards at 171. “In many cases involving the sexual abuse of

children, the victims are simply unable to remember exact dates, especially where the

crimes involve a repeated course of conduct over an extended period of time.”

Rucker at ¶ 43.

       {¶18} After a review of the record, the evidence was clearly sufficient as to

counts one through eight. For those counts, K.S. testified to sexual conduct with See

during or about the time periods alleged in the indictment.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} In count nine, the time period alleged in the indictment does not align

with the time period testified to by K.S.      The indictment alleged that between

January 4, 2007, and December 31, 2007, See, without privilege to do so, inserted,

however slight, any part of the body or any instrument, apparatus, or other object

into the vaginal or anal opening, of K.S., who was less than 13 years of age, whether

or not See knew K.S.’s age.     See R.C. 2907.02(A)(1)(b).      K.S. testified that See

digitally penetrated her “hundreds of times,” but the first time was not until 2010,

roughly three years after the time period alleged in count nine.

       {¶20} Our standard of review on a sufficiency challenge is whether “after

viewing the probative evidence and inferences reasonably drawn therefrom in the

light most favorable to the prosecution, any rational trier of fact could have found all

the essential elements of the offense beyond a reasonable doubt.” (Emphasis added.)

MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, at ¶ 12. As discussed

above, precise dates are generally not essential elements of offenses, especially in

cases of childhood sexual abuse. See Rucker, 1st Dist. Hamilton No. C-110082, 2012-

Ohio-185, at ¶ 42.

       {¶21} K.S. testified that See digitally penetrated her in 2010, a year in which

she would have been between ten and 11 years old.           Count nine was the only

allegation of rape through digital penetration in B17. Thus, there was no risk that the

jury could have found See guilty more than once for the same instance of digital

penetration. Therefore, even though K.S.’s testimony placed the digital penetration

three years after the time period alleged in the indictment, her testimony

nevertheless permitted the jury to find all of the essential elements of R.C.




                                              8
                     OHIO FIRST DISTRICT COURT OF APPEALS



2907.02(A)(1)(b) proven beyond a reasonable doubt. The evidence is sufficient as to

count nine.

       {¶22} The counts in B18 related to See’s sexual abuse of S.S. and E.M. See

does not make any specific arguments regarding the sufficiency of the evidence on

the counts in B18. Rather, he generally attacks the credibility of the testimony of S.S.

and E.M.

       {¶23} The counts in B18 alleged rape, sexual battery, and gross sexual

imposition. The rape and sexual-battery counts vary somewhat as to the sexual acts

alleged and the time periods the acts were alleged to have occurred, but the essential

elements are the same as the rape and sexual-battery counts discussed above. To

prove gross sexual imposition, the state had to prove that See purposely caused E.M.

and S.S. to have sexual contact, and that at least one of them was less than 13 years of

age, whether See knew their ages or not. See R.C. 2907.05(A)(4).

       {¶24} After a review of the record, the evidence was sufficient as to all counts

in B18. The third assignment of error is overruled.

                          Fourth Assignment of Error

       {¶25} In See’s fourth assignment of error, he argues that his convictions were

against the manifest weight of the evidence.

       {¶26} When determining whether a defendant’s conviction was against the

manifest weight of the evidence, “we review the record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether the trier of fact ‘clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be overturned.’ ” MacDonald, 1st Dist. Hamilton

No. C-180310, 2019-Ohio-3595, at ¶ 24, quoting Martin, 20 Ohio App.3d at 175, 485




                                               9
                       OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 717. Reversal of a conviction and a grant of a new trial should only be done in

“exceptional cases in which the evidence weighs heavily against the conviction.”

MacDonald at ¶ 24.

       {¶27} The case essentially came down to a credibility determination between

the state’s witnesses and the defense witnesses. All three victims provided damning

testimony detailing years of sexual abuse at the hands of See. Their testimony was

also supported by other state witnesses.

       {¶28} K.S.’s testimony was supported by multiple witnesses. C.D., K.S.’s

boyfriend, testified that K.S. told him in 2015 about her sexual encounters with See.

The school resource officer at K.S.’s school testified that in 2015 K.S. disclosed to him

that See had been sexually abusing her. K.S.’s school counselor testified that she

believed that K.S.’s mental-health issues and behavioral problems at school were

consistent with a child suffering sexual abuse, although K.S. never disclosed any

sexual abuse to her.

       {¶29} E.M. and S.S. corroborated each other’s testimony. They told very

similar accounts of the incident in summer 2001 in which they performed sexual acts

with See in exchange for a lollipop. They also both testified that at first E.M. was

apprehensive about performing fellatio on See, and so S.S. went first while E.M.

watched.

       {¶30} E.M.’s testimony was supported by the testimony of her biological

father, B.M. B.M. testified that E.M. would come home from her visits with See and

Stites “angry, mad, disruptive,” and that in 2012 E.M. told him about See’s sexual

abuse. C.M. is E.M.’s stepmother. She testified that she wanted E.M.’s visitations

with See and Stites to be supervised because “something wasn’t right with [E.M.].”




                                              10
                        OHIO FIRST DISTRICT COURT OF APPEALS



She testified that every time E.M. would come home from visiting See she was

depressed, crying, and upset. She testified that E.M. would “play with” her privates a

lot when she was five or six years old.

       {¶31} S.S.’s testimony was supported by D.S., S.S.’s biological mother. D.S.

testified that in summer 2001, after returning from staying with See and Stites, S.S.

told her that See had been “touching her and kissing on her.” Although S.S. recanted

and said that it had all been a dream, D.S. testified that S.S. would ask her not to go

to See’s every summer afterwards, but D.S. would make her go so that she could

spend time with her brother, who lived with See and Stites. Finally, D.S. testified

that after the visit in 2005, S.S. was “really anxious,” and begged D.S. not to send her

to See’s house again.

       {¶32} See’s defense rested on two main strategies.           First, the defense

attacked the details of the victims’ testimony, such as their timelines of the abuse,

why they waited years to report the abuse, and why K.S. and S.S. denied that any

abuse happened when they were interviewed by the Mayerson Center social workers

in 2012. Second, the defense offered the testimony of others who lived with See and

Stites at various times and denied ever seeing any indications of abuse.

       {¶33} All of the victims were very young when the abuse started, between

four and eight years old. K.S., E.M., and S.S. all testified as to why they waited so

many years to disclose the abuse, and in the cases of K.S. and S.S., why in 2012 they

denied that any abuse had occurred. K.S. testified that See told her that what he was

doing was “what all daddies did. He said that all daddies did this to his little girls,”

and that he was preparing her “to be a woman, how to love a man.” S.S. testified that

she recanted in 2001 and denied any abuse in 2012 because she did not want to be




                                              11
                        OHIO FIRST DISTRICT COURT OF APPEALS



responsible for putting See in prison, and that despite the abuse, he was her father

and she wanted him to be in her life. E.M. testified to similar reasons—she did not

know that the sexual activity with See was wrong, and Stites was her mother and

E.M. wanted a relationship with her.

          {¶34} “The trier of fact is in the best position to judge the credibility of the

witnesses and the weight to be given to the evidence presented.” State v. Carson, 1st

Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16.

          {¶35} The jury clearly believed the victims’ testimony over that of the defense

witnesses. Also, that the other siblings and relatives did not see any signs of abuse

does not mean that the abuse was not happening. The victims testified that they and

their siblings often stayed at other relatives’ houses, and that See would abuse them

when their siblings were staying with relatives, or at nighttime when others were

asleep.

          {¶36} Nothing presented by See leads us to believe that this is one of those

“exceptional cases in which the evidence weighs heavily against the conviction.” See

MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, at ¶ 24. The fourth

assignment of error is overruled.

                              First Assignment of Error

          {¶37} In his first assignment of error, See argues that by admitting evidence

of E.M.’s post-rape psychological issues and photographs of the victims, the trial

court violated Evid.R. 403(A).

          {¶38} Evid.R. 403(A) provides that “although relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.”




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶39} First,   we   discuss      E.M.’s    testimony    regarding    her    post-rape

psychological issues. E.M. testified that after she was abused by See, and the grand

jury declined to indict See in 2012, she “kind of spiraled out of control, started

experimenting with drugs and had become extremely promiscuous, and eventually

got into some legal trouble.”

       {¶40} Defense counsel did not object to this testimony. Therefore, See has

waived all but plain-error review. State v. Baker, 1st Dist. Hamilton Nos. C-080157

and C-080159, 2009-Ohio-4188, ¶ 57. To constitute plain error, an error must be

“obvious,” and “but for the error, the outcome of the trial clearly would have been

otherwise.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶

177. “Notice of plain error is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id.

       {¶41} See argues         that   E.M.’s    testimony    regarding    her    post-abuse

psychological issues was meant to inflame the jury. Although the relevance of E.M.’s

psychological issues to See’s guilt/innocence is low, the prejudicial impact is also

low. In fact, See argued that E.M.’s testimony about her decline in her mental and

emotional health and behavioral problems led her to make false allegations against

See and Stites.   See has failed to demonstrate that the probative value of the

testimony was substantially outweighed by the danger of unfair prejudice such that

but for the error, the outcome of the trial clearly would have been otherwise.

       {¶42} Next, we discuss the trial court’s admission, over defense objection, of

photographs of the victims as children.          Under Evid.R. 403, the admission of

photographs is left to the sound discretion of the trial court. State v. Cephas, 1st

Dist. Hamilton No. C-180105, 2019-Ohio-52, ¶ 27. “The term ‘abuse of discretion’




                                                 13
                         OHIO FIRST DISTRICT COURT OF APPEALS



connotes more than an error of law or of judgment; it implies that the court's attitude

is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980).

       {¶43} In a prosecution for rape and gross sexual imposition, the Seventh

District held that the trial court did not abuse its discretion in admitting a

photograph of the 11-year-old victim.      State v. Davis, 7th Dist. Mahoning No.

05MA3, 2007-Ohio-1397, ¶ 39.        The court reasoned that the photograph was

probative because it depicted what the victim looked like at the time of the offenses,

and that there was “nothing prejudicial in allowing the jury to see just what a ten or

eleven year old girl looked like.” Id.; see State v. Carey, 5th Dist. Licking No. 2008-

CA-20, 2009-Ohio-103, ¶ 100 (citing Davis and holding that where the state had to

prove the age of the victims, photographs depicting the victims at the time of the

offenses were probative and not unduly prejudicial).

       {¶44} The prosecution conceded that the ages of See’s victims were not in

dispute, but explained that since the victims were now testifying as adults, admission

of the photographs was necessary to show the jury the “gravity of the case and the

true situation that this child was in, they need to see her when she was the victim.”

One of the defense themes was that the victims’ testimony was not credible because

they kept silent or denied the abuse for years. The photographs demonstrated one of

the reasons the victims kept the abuse secret for so long—because they were so young

when it occurred.

       {¶45} See has failed to show that the trial court’s admission of the

photographs was arbitrary, unreasonable, or unconscionable. The first assignment

of error is overruled.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                          Second Assignment of Error

       {¶46} In his second assignment of error, See argues that the trial court

abused its discretion when it admitted two hearsay statements.

       {¶47} First, B.M. testified about statements made to him by E.M. when she

disclosed See’s abuse to him. B.M. testified that he and E.M. had gotten into a fight

about her room being messy. They went for a ride in the car to talk and calm down.

B.M. testified that E.M. was “really shaky, nervous, looked really scared. She was

really just upset. * * * really shaky, clammy, angry. She was just a bundle of nerves.”

When the prosecution asked B.M. what E.M. said, defense counsel objected. The

court permitted B.M. to testify to what E.M. said on the basis that E.M.’s statements

were an excited utterance. B.M. testified that E.M. told him that See had molested

her and had had sex with her.

       {¶48} Evid.R. 802 prohibits the admission of hearsay.           Evid.R. 801(C)

defines hearsay as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.”

       {¶49} Evid.R. 803(2) provides an exception to the prohibition against

hearsay for an excited utterance, which is defined as “a statement relating to a

startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.”

       {¶50} Hearsay statements may be admissible as an excited utterance when:

     1) there is an event startling enough to cause “nervous excitement” in the

     declarant, 2) the statement, though not strictly contemporaneous, was

     made before the declarant had time for the nervous excitement to




                                              15
                     OHIO FIRST DISTRICT COURT OF APPEALS



      subside, 3) the statement related to the startling event, and 4) the

      declarant personally observed the startling event.

State v. Smith, 1st Dist. Hamilton No. C-180499, 2019-Ohio-3257, ¶ 17.

       {¶51} Excited utterances are deemed reliable because they are made before

the declarant has an opportunity to reflect, thus reducing the chance to fabricate or

distort the truth. Id. at ¶ 18. “Reactive excited statements are considered more

trustworthy than hearsay generally on the dual grounds that, first, the stimulus

renders the declarant incapable of fabrication and, second, the impression on the

declarant’s memory at the time of the statement is still fresh and intense.” State v.

Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993). Although the passage of

time between the startling event and the statement is relevant, it is not dispositive.

Id.

       {¶52} Rather, the key determination is whether the statement was the result

of reflective thought. State v. Harris, 163 Ohio App.3d 286, 2005-Ohio-4696, 837

N.E.2d 830, ¶ 7 (1st Dist.).    “When statements come with the opportunity for

reflective thought, they cannot squeeze through the excited utterance exception.”

Smith, 1st Dist. Hamilton No. C-180499, 2019-Ohio-3257, at ¶ 18, quoting Harris at

¶ 7. In Smith, this court held that the declarant’s statement was not an excited

utterance where she hesitated to initially tell police officers what happened—the

statement “lacked the spontaneous quality necessary for an excited utterance.”

Smith at ¶ 19.

       {¶53} It is unclear from the testimony how soon after the last incident of

sexual abuse E.M.’s statement to B.M. was made. Regardless, there was a fight

between the two and then a car drive to calm down. There was an opportunity for




                                             16
                     OHIO FIRST DISTRICT COURT OF APPEALS



reflective thought, and the statement lacked spontaneity. Thus, E.M.’s statement to

B.M. did not carry the level of trustworthiness necessary to serve the purposes of the

exited-utterance exception.

       {¶54} The trial court acknowledged a “temporal aspect” to the excited-

utterance exception, but based his ruling on E.M.’s emotional and physical state at

the time she made the statement—that she was “shaky, nervous, scared, upset.”

Merely being upset at the time the statement was made does not meet the standard

for admissibility as an excited utterance. Taylor, 66 Ohio St.3d at 303, 612 N.E.2d

316. The trial court’s ruling was an abuse of discretion.

       {¶55} See also argues that a statement made by D.S., S.S.’s biological mother,

was inadmissible hearsay. D.S. testified that S.S. disclosed to her that See “was

touching her and kissing on her, and she didn’t want to go back.” Defense counsel

objected to the testimony as hearsay. The prosecution argued that D.S.’s testimony

was not hearsay because the prosecutor did not ask D.S. to repeat the actual

statement, but rather asked D.S. about the nature of S.S.’s disclosure. The trial court

admitted the statement on that basis.

       {¶56} D.S. may not have put quotation marks around her testimony, but her

testimony went directly to the substance of S.S.’s statement.           Therefore, this

statement was hearsay and should not have been admitted.

       {¶57} Regardless, any error as a result of the admission of the hearsay

statements by B.M. and D.S. was harmless.          E.M. and S.S. were subject to cross-

examination about the statements, and the hearsay testimony was cumulative

because E.M. testified to making the statements to B.M., and S.S. testified to making

the statements to D.S.    See Cornell v. Hatfield, 12th Dist. Fayette No. CA2017-03-




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006, 2018-Ohio-549, ¶ 18 (“any error in the admission of hearsay is generally

harmless when the declarant is cross-examined on the same matters and the

seemingly erroneous evidence is cumulative in nature”); In re Z., 1st Dist. Hamilton

No. C-190026, 2019-Ohio-1617, ¶ 15 (when inadmissible hearsay is cumulative, its

admission is typically harmless).

       {¶58} Also, as discussed above, the victims’ testimony was corroborated by

more than just the hearsay testimony.          The trial court abused its discretion in

admitting the hearsay testimonies of B.M. and D.S., but the error was harmless. The

second assignment of error is overruled.

                             Fifth Assignment of Error

       {¶59} In his fifth assignment of error, See argues that he was denied the

effective assistance of counsel because his counsel failed to hire an independent

expert to testify to the lack of reliability in cases of “late disclosed sexual abuse.”

       {¶60} “To establish an ineffective-assistance-of-counsel claim, a defendant

must show (1) that counsel’s performance was deficient, and (2) that the deficient

performance prejudiced the defense, thereby depriving him of a fair trial.” State v.

Jones, 1st Dist. Hamilton No. C-180091, 2019-Ohio-4862, ¶ 80, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶61} Regarding the second prong, prejudice requires there to be “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Jones at ¶ 81, quoting State v. Bradley, 42

Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “A defendant’s failure to satisfy one

prong of the Strickland test negates a court’s need to consider the other.” Jones at ¶

81, quoting State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).




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       {¶62} In Jones, the defendant argued that he was denied the effective

assistance of counsel where defense counsel failed to call two witnesses to testify

regarding alleged promises made by police to a witness. Jones at ¶ 82. However,

there was no evidence in the record as to how either of the witnesses would have

testified, and so this court held that the defendant had failed to prove the prejudice

prong of the Strickland test. Id.

       {¶63} Similarly, in the present case, there is no evidence in the record as to

how an expert witness would have testified regarding “late disclosed sexual abuse.”

See argues that an expert witness on childhood sexual abuse could have rebutted the

state’s witnesses, or could have testified that allegations of childhood sexual abuse

disclosed later in the victim’s life are unreliable. However, we simply do not know

how an expert witness would have testified, and we cannot base our ruling on See’s

speculation. Thus, without any evidence of prejudice, we cannot find that See was

denied the effective assistance of counsel. His fifth assignment of error is overruled.

                            Sixth Assignment of Error

       {¶64} In his sixth assignment of error, See argues that the individual group

of sentences for each victim were grossly disproportionate to his respective offenses

and violate the Eighth Amendment to the United States Constitution by subjecting

him to cruel and unusual punishment.

       {¶65} The     Ohio    Supreme     Court     addressed   the   cruel-and-unusual

punishment provision of the Eighth Amendment in State v. Hairston, 118 Ohio St.3d

289, 2008-Ohio-2338, 888 N.E.2d 1073. The court held:




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       The Eighth Amendment does not require strict proportionality between

       crime and sentence. Rather, it forbids only extreme sentences that are

       “grossly disproportionate” to the crime.

                                            ***

       Cases in which cruel and unusual punishments have been found are

       limited to those involving sanctions which under the circumstances

       would be considered shocking to any reasonable person, and * * * the

       penalty must be so greatly disproportionate to the offense as to shock the

       sense of justice of the community.

(Citations omitted.) Id. at ¶ 13-14, quoting State v. Weitbrecht, 86 Ohio St.3d 368,

371-373, 715 N.E.2d 167 (1999); see State v. Williams, 2017-Ohio-8898, 101 N.E.3d

547, ¶ 30 (1st Dist.).

        {¶66} However, when reviewing a claim of cruel and unusual punishment,

Hairston requires that a court review the proportionality of the individual sentences

rather than the cumulative impact of consecutive sentences. Hairston held, “Where

none    of the    individual   sentences    imposed     on   an   offender   are   grossly

disproportionate to their respective offenses, an aggregate prison term resulting

from consecutive imposition of those sentences does not constitute cruel and

unusual punishment.”        Hairston at syllabus.      The Hairston court rejected the

defendant’s Eighth Amendment claim despite the fact that he received the maximum

sentence on each individual count and the trial court ran the sentences consecutively

for an aggregate sentence of 134 years. Id. at ¶ 9. The court held “[b]ecause the

individual sentences imposed by the court are within the range of penalties

authorized by the legislature, they are not grossly disproportionate or shocking to a




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reasonable person or the community’s sense of justice and do not constitute cruel

and unusual punishment.” Id. at ¶ 23.

       {¶67} See’s aggregate sentence was four consecutive life sentences, to be

served consecutively to 221 years. See does not challenge any of his individual

sentences. Rather, See argues that “the individual group of sentences for each girl

imposed by the trial court are grossly disproportionate to the offense.” (Emphasis

added.) See seems to argue that the trial court should not have made the individual

sentences for each victim consecutive because they were part of the same act or

transaction. For example, See argues that “[w]hile the counts on B1706834 each deal

with different time periods, the sexual contact with [K.S.] was a series of acts bound

together at the same location, the See residence.” With regard to the three life

sentences imposed for E.M., See argues, “These offense were against one person, and

all – as was the case with [K.S.], . . . a series of continuous acts bound towards a

single objective.”

       {¶68} See points us to R.C. 2929.14(D)(1)(b) for the proposition that the

court may not impose more than one prison term on an offender for felonies that

were committed as part of the same “act or transaction.” Previous versions of R.C.

2929.14(D)(1)(b), including versions in effect during the years of abuse, provided

that “[e]xcept as provided in division (D)(1)(g) of this section, a court shall not

impose more than one prison term on an offender under division (D)(1)(a) of this

section for felonies committed as part of the same act or transaction.”

       {¶69} But the offenses of which See was convicted were not all part of one act

or transaction. He abused three different victims on multiple occasions over a period

of 15 years. Each count alleged an act of abuse separate and distinct from the other




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counts. His offenses were not part of a continuing course of conduct that would

require concurrent sentences under the law.

       {¶70} See further argues that ordering that his mandatory life sentences be

served consecutively amounts to cruel and unusual punishment. See received three

consecutive life sentences for raping E.M. and a fourth life sentence for raping S.S.

The court made the necessary consecutive sentencing findings, both during the

sentencing hearing and in the sentencing entry. Nevertheless, See argues that he

“can only live one life and can only serve one life.” This court rejected that argument

in State v. Williams, 2017-Ohio-8898, 101 N.E.3d 547, ¶ 31 (1st Dist.), and we again

reject it here. The Supreme Court of Ohio has pronounced that “Eighth Amendment

proportionality review does not apply to consecutive sentences.” Id. at ¶ 31, citing

Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, at ¶ 20. We are

bound by the dictates of Ohio Supreme Court precedent. See’s aggregate sentence

does not constitute cruel and unusual punishment.

       {¶71} See’s sixth assignment of error is overruled.

                                      Conclusion

       {¶72} For the foregoing reasons, See’s assignments of error are overruled

and the judgments of the trial court are affirmed.

                                                                     Judgments affirmed.



ZAYAS, P.J., and WINKLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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