[Cite as State v. Brown, 2013-Ohio-5528.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                )    CASE NO. 11 MA 117
                                             )
        PLAINTIFF-APPELLEE                   )
                                             )
VS.                                          )    OPINION
                                             )
MILIOUS BROWN                                )
                                             )
        DEFENDANT-APPELLANT                  )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the Court of
                                                  Common Pleas of Mahoning County,
                                                  Ohio
                                                  Case No. 09 CR 557

JUDGMENT:                                         Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                           Atty. Paul J. Gains
                                                  Mahoning County Prosecutor
                                                  Atty. Ralph M. Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 West Boardman Street, 6th Floor
                                                  Youngstown, Ohio 44503

For Defendant-Appellant:                          Atty. Megan Graff
                                                  Comstock, Springer & Wilson Co., L.P.A.
                                                  100 Federal Plaza East
                                                  Suite 926
                                                  Youngstown, Ohio 44503


JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                  Dated: December 13, 2013
[Cite as State v. Brown, 2013-Ohio-5528.]
WAITE, J.


        {¶1}    Appellant Milious Brown appeals his conviction in the Mahoning County

Common Pleas Court on two counts of gross sexual imposition.                 On appeal,

Appellant contends that his convictions were not supported by sufficient evidence

and against the manifest weight of the evidence. Appellant argues that the testimony

of his child victims was insufficient to establish the alleged offenses and motivated by

the father of one of the victims who was seeking custody of the child. Appellant also

contends that the trial court should have granted his motion for mistrial. Appellant’s

three assignments of error are without merit and are overruled. The judgment of the

trial court is affirmed.

                                  Factual and Procedural History

        {¶2}    On March 6, 2009, 14 year old M.T. was giving Child X and Child Y a

bath. While she was bathing the girls, one of whom is her younger sister, she asked

them if Appellant had ever touched either of them under their clothes. The older of

the two girls, Child X, who was five years old at the time, told M.T. that Appellant had

touched her genitals. Child X also told her sister that Appellant had touched Child Y,

her half-sister, who was four at the time, in the same way. Although the trial court did

not allow M.T. to testify on the subject at trial, Appellant suggests that M.T.’s question

was not prompted by anything the children said or did, but was prompted by some

other reason.

        {¶3}    That same night M.T. called her father, Marco T. “(“Marco”), asked him

to come home immediately, and explained what Child X and Child Y had told her.

While M.T. was speaking to her father, his then-girlfriend, Tami Kushnir, supervised
                                                                                     -2-

the girls who were finishing their bath. The children told Kushnir that if she would

“pinky promise” that she would not tell anyone else, then they would tell her their

secret. (Tr. Vol. II, p. 276.) The children described to Kushnir multiple forms of

sexual abuse involving various sex acts performed by Appellant on each child in their

mother’s home, at night, while the rest of the family slept. According to Ms. Kushnir:

Child Y told her that Appellant “would kiss, tickle, and lick * * * her chest area” and

“do the same thing to her bad word[vaginal area], and she pointed to her private

area” that he would manipulate himself, and lick inside her anus. (Tr. Vol. II, pp. 275,

276.) Child X separately described the same actions, that Appellant would “kiss and

tickle and lick” her breasts and her “bad word.” (Tr. Vol. II, p. 276.)

       {¶4}   Marco reported the allegations that same night and was instructed by

the sheriff’s department to come in the following morning. Ms. Kushnir, M.T., and

Marco accompanied Child X and Child Y to the police department the next morning

and gave statements. Mahoning County Children Services Agency was contacted

and the family was referred to the emergency room and to the Child Advocacy

Center. Both Child X and Child Y were taken to the emergency room by the family,

and the matter was referred to Child and Family Services.             As a result of the

investigation, custody of Child X was transferred to Marco.

       {¶5}   Melissa Bennet, a Department of Child and Family Services

investigator, was assigned the case on March 9, 2009 and immediately contacted the

girls’ mother to identify herself and schedule a date when she could meet with the

mother, Child Y, and Child Y’s siblings who were living in the house in Campbell.

The investigator went to the house that evening and met with the mother, Child Y,
                                                                                       -3-

and her three siblings (not including Child X, who remained with her father). The

investigator interviewed Child Y alone, in a room in the house, but separate from her

mother and siblings. The investigator described Child Y, who was then four years

old, as “very matter of fact, very blunt about it. I don’t think she understood the -- the

importance or the magnitude of what she was saying.” (Tr. Vol. II, p. 327.) Child Y

told the investigator that Appellant “kisses her, and she pointed to her vaginal area.

She said that [Child X] saw and that she loves [Appellant].” (Tr. Vol. II, p. 326.)

       {¶6}   A few days later, on March 12th or 13th 2009, the investigator conducted

separate, videotaped, forensic interviews of Child Y and Child X. Child Y’s interview

was played for the jury at trial. Apart from any examination that took place in the

emergency room on March 7th 2009, Child Y did not undergo an examination or

treatment because her mother would not agree to it. The investigator found Child Y

credible and the words she used developmentally appropriate. (Tr. Vol. II, pp. 358-

359.) When Child X was taken by her father, sister, and Ms. Kushnir to her forensic

interview, Dr. Paul McPherson conducted a physical exam. At trial, Dr. McPherson

explained the evaluation process and gave his medical conclusion that the results of

his examination of Child X were consistent with sexual abuse. (Tr. Vol. III, p. 396.)

As a result of the diagnosis, Child X was referred to Amy Chichak, a family counselor

with Child and Family Services.

       {¶7}   Ms. Chichak began treatment of Child X for sexual abuse on March 30,

2009. (Tr. Vol. II, p. 298.) During her ongoing treatment with Ms. Chichak, Child X

described to the counselor the same types of interactions with Appellant that she

described to Ms. Kushnir and her sister.         Over the first months of treatment,
                                                                                        -4-

according to Ms. Chichak, she also described Appellant touching her “boobies, her

vagina and her butt,” that he “would rub his balls up against her, that he would make

her suck his penis, that stuff had come out and it tasted gross, that she had told her

mom and her vagina would hurt and it would get red and mom would put medication

on it.” (Tr. Vol. II, p. 300.) The counselor explained that Child X did not disclose

every type of abuse that occurred during her initial appointment or during each

session and that her disclosures and discussions of the incidents were consistent

with a developing child remembering various things that had happened to her as she

learned how to interact with the counselor.         (Tr. Vol. II, pp. 307-318.)     In the

counselor’s professional opinion, Child X was credible, and her behavior in

counseling did not suggest that she was being coached or fed things to say. (Tr. Vol.

II, pp. 302, 318.)

       {¶8}   Appellant was indicted on May 28, 2009. The indictment included three

counts, one count of gross sexual imposition with regard to Child X (count one), one

count of gross sexual imposition with regard to Child Y (count two), and one count of

rape with regard to a third child. This appeal deals only with the two counts of gross

sexual imposition, which were tried together.

       {¶9}   Child Y did not testify at trial. Child X’s testimony at trial was consistent

with her prior statements to the various adults who evaluated her. She described

Appellant waking her up at night and either staying with her in her room or taking her

into the living room while her mother was sleeping. After removing their clothing,

Appellant would touch her breasts/chest area with his hands and her vaginal and

anal areas with his genitals. Child X said she witnessed Appellant doing the same
                                                                                      -5-

things to her sister, Child Y. (Tr. Vol. II, pp. 224-236.) The jury returned guilty

verdicts on both gross sexual imposition charges

      {¶10} Appellant’s sentencing was originally set for May 9, 2011, but was

rescheduled for June on Appellant’s motion. Appellant’s trial counsel withdrew at the

June hearing, and a third date was scheduled in July. The trial court denied a pre-

hearing motion for continuance seeking a presentencing investigation, and

sentenced Appellant at the scheduled July 11, 2011 hearing to five years on each

count, to be served consecutively. Appellant filed a timely appeal of his sentence.

                                 Argument and Law

                              Assignment of Error No. 1

      The State of Ohio failed to introduce sufficient evidence to prove

      beyond a reasonable doubt that defendant-appellant, Milious Brown,

      committed gross sexual imposition.

                              Assignment of Error No. 2

      The jury verdict finding Mr. Brown guilty of two counts of gross sexual

      imposition is against the manifest weight of the evidence.

      {¶11} Although Appellant’s first and second assignments of error present

different legal bases for reversing a conviction, Appellant’s argument under both

assignments is identical:   the convictions should be reversed because Child X’s

father sought custody of Child X and allegedly he and his girlfriend, who were

present during all interviews with Child X, were the primary source of the information
                                                                                     -6-

provided to medical witnesses and investigators. Because Appellant presents the

same argument in both assignments they will be considered together.

      {¶12} To discharge its burden when prosecuting a criminal offense, “probative

evidence must be offered” by the state on “every material element which is necessary

to constitute the crime.” State v. Martin, 164 Ohio St. 54, 57 (1955). Our review of

the jury’s verdict is limited to whether there was evidence presented, which, if

believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). “The verdict will

not be disturbed unless the appellate court finds that reasonable minds could not

reach the conclusion reached by the trier of facts.” Id. “It must be kept in mind by the

appellate court that the jury heard all of the evidence and was instructed as to the law

and as a result found the accused guilty beyond a reasonable doubt * * * the relevant

inquiry does not involve how the appellate court might interpret the evidence” Id.

When determining the sufficiency of the evidence presented, “the inquiry is, after

viewing the evidence in the light most favorable to the prosecution, whether any

reasonable trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” Id. citing Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d

560 (1979).

      {¶13} When determining whether a criminal judgment is against the manifest

weight of the evidence, we act as a “thirteenth juror” to determine whether “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), citing State v. Martin, 20 Ohio App.3d 172,
                                                                                     -7-

175, 485 N.E.2d 717 (1983). The verdict is not against the weight of the evidence

when there is evidence in the record which, if believed, will convince the average

person of the accused's guilt beyond a reasonable doubt. State v. Eley, 56 Ohio

St.2d 169, 172, 383 N.E.2d 132 (1978).

      A verdict that is supported by sufficient evidence may still be against

      the manifest weight of the evidence. “Weight of the evidence concerns

      ‘the inclination of the greater amount of credible evidence, offered in a

      trial, to support one side of the issue rather than the other. It indicates

      clearly to the jury that the party having the burden of proof will be

      entitled to their verdict, if, on weighing the evidence in their minds, they

      shall find the greater amount of credible evidence sustains the issue

      which is to be established before them. Weight is not a question of

      mathematics, but depends on its effect in inducing belief.’ ” (Emphasis

      sic.) (Internal citations omitted.)

State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶24, quoting Thompkins,

supra, at 387.   The weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of fact to determine. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

      {¶14} Appellant’s arguments in support of his first and second assignments of

error do not address the sufficiency or weight of the evidence actually presented at

trial, but instead seek to undermine the quality of the underlying investigation. Our

role on appeal, however is to address the evidence presented at trial. In this matter,
                                                                                      -8-

the jury heard testimony from Child X, her older sister, Child X’s father Marco, his

former girlfriend, the Child and Family Services Investigator, Child X’s counselor and

the examining physician. Each witness was able to separately discuss both what

they heard from the children, the father, and the sister, as well as what they

themselves had observed. Most importantly, Child X testified specifically as to the

conduct that satisfied each element of the offense and was subjected to cross-

examination on those issues. Appellant had every opportunity to advance his theory

that Child X’s father created and manipulated the situation to further his goal of

obtaining custody of Child X, and the jury heard that theory, beginning with opening

statements, throughout the case. Appellant’s theory of his defense does not alter the

fact that the testimony presented at trial, if believed, clearly established each element

of the offenses charged and thus was sufficient to convict.

       {¶15} Likewise, Appellant’s arguments in assignments one and two do not

dispute the fact that probative evidence was presented on each element of the

offenses. Instead, Appellant contends that the jury should have disregarded that

evidence because Child X’s father, Marco, sought and obtained the change of

custody he desired only after he learned that Appellant was sexually abusing the

children in their mother’s household. Appellant attempted to convince the jury that he

was an innocent victim of this “plot” by Marco to get custody of Child X. Clearly, the

jury did not believe Appellant. In Appellant’s arguments he does not deny that a

great deal of evidence was presented against him. Instead, Appellant contends that

the factfinder should have weighed the evidence differently.       Again, questions of

weight and credibility are primarily for the jury to resolve. Jenks and Barnhart, supra.
                                                                                     -9-

On review, the jury’s verdict will not be disturbed where, as here, there is probative

evidence in the record which goes to all of the elements of the crime and which, if

believed, would convince the average mind beyond a reasonable doubt of the guilt of

the accused. Jenks and Barnhart, supra. Appellant’s first and second assignments

of error are without merit and are overruled.

                               Assignment of Error No. 3

      The trial court abused its discretion by failing to grant Mr. Brown’s

      motion for a mistrial.

      {¶16} A trial court’s ruling on a motion for mistrial is reviewed for an abuse of

discretion. State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900 (1988). The term

abuse of discretion “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).            When evaluating whether the

declaration of mistrial was proper in a particular case, both the Ohio and the United

States Supreme Courts have “declined to apply inflexible standards, due to the

infinite variety of circumstances in which a mistrial may arise.” Glover, supra, at 19;

also Arizona v. Washington, 434 U.S. 497, 513, 98 S.Ct. 824 (1978) citing United

States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct.1075 (1976) (“The adoption of a stringent

standard of appellate review in this area [i.e. mistrial], therefore, would seriously

impede the trial judge in the proper performance of his ‘duty, in order to protect the

integrity of the trial, to take prompt and affirmative action to stop . . . professional

misconduct.’”) The Ohio Supreme Court “grants great deference to the trial court's
                                                                                    -10-

discretion in this area, in recognition of the fact that the trial judge is in the best

position to determine whether the situation in his courtroom warrants the declaration

of a mistrial.” Glover, supra, at 19. Where the facts of the case do not reflect

unfairness to the accused, the public interest in insuring that justice is served may

take precedence. Arizona v. Washington, supra at 505.

       {¶17} Appellant bases his motion for mistrial on a single exchange between

the state and a witness, the older sister of Child X. Appellant contends that the

state’s explanation as to how the sister elicited information concerning abuse from

the two children was an attempt to introduce improper “other acts” testimony

prejudicial to the defense. The actual question at trial: “And was that based on some

information that you -- you and your father had received?” was never fully answered

because defense counsel’s objection was sustained. (Tr. Vol. II, pp. 263-264.) The

trial court then gave a curative instruction: “I’m going to instruct you to disregard the

last question and answer.” (Tr. Vol. II, p. 264.)

       {¶18} Appellant contends that this question, in combination with the three that

preceded it, “did you go to give the girls a bath”; “did you ask them a question in the

bathroom”; and “was that based on something that happened to you,” combined to

violate Evid.R. 404(B), which prohibits the use of other crimes, wrongs, or acts unless

they are used to demonstrate motive, opportunity, intent, preparation, plan,

knowledge, identity, or the absence of mistake or accident. (Tr. Vol. II, pp. 263-264.)

Appellant argues that the witness’s single word assent to each of the preceding

questions impermissibly laid a foundation for the inference that the witness had been

previously abused by Appellant.
                                                                                      -11-

       {¶19} Appellant is mistaken in his belief that a violation of Evid.R. 404(B)

occurred in this exchange. No evidence was actually admitted as a result of this

testimony.    No crime, wrong, or act engaged in or performed by Appellant was

described in this testimony. Although the question alluded generally to “something

that happened” to the witness, it is apparent that no connection was suggested

between Appellant and the witness and the actual nature of the “something” was

never disclosed. Appellant’s belief that such an extremely specific inference is to be

drawn from such a general statement is improbable. It is equally true, if not even

more likely, that a jury might conclude that the witness knew someone who had a

similar experience, had herself had an experience with a third party, or had recently

been instructed to be alert for the possibility of abuse and taught to avoid certain

situations.   The connection Appellant claims is evident from these questions is

tenuous at best. The trial court ended the line of questioning before any details

concerning what the witness knew or experienced was divulged.

       {¶20} There is no indication that the trier of fact drew any inference at all from

this line of questioning, and absent evidence to the contrary “[a] jury is presumed to

follow the instructions, including curative instructions, given it by a trial judge.” State

v. Gardner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995) (in which the Supreme

Court found that a police officer’s reference to an appellant’s prior arrests was not

prejudicial and did not necessitate mistrial).      This trial court did not abuse its

discretion in failing to order a mistrial. Id. Appellant’s third assignment of error is

without merit and is overruled.

                                       Conclusion
                                                                                   -12-

       {¶21} The judgment of the trial court was supported by sufficient probative

evidence on all elements of the offenses charged. The conclusion reached by the

trial court was not against the manifest weight of the evidence. The trial court did not

err in denying Appellant’s motion for mistrial, as it was clearly unwarranted based on

this record. Appellant’s three assignments of error are overruled and the judgment of

the trial court is affirmed.


Vukovich, J., concurs.

DeGenaro, P.J., concurs.
