[Cite as State v. Hughes, 2015-Ohio-151.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                       No. 14AP-360
v.                                                 :                 (C.P.C. No. 13CR-3810)

Franchesco Hughes,                                 :               (REGULAR CALENDAR)

                 Defendant-Appellant.              :




                                            D E C I S I O N

                                    Rendered on January 20, 2015


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Carpenter Lipps & Leland LLP, Kort Gatterdam and Erik P.
                 Henry, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Franchesco Hughes, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding him guilty one count of rape and one
count gross sexual imposition. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} By indictment filed July 19, 2013, plaintiff-appellee, the State of Ohio,
charged appellant with one count of rape, in violation of R.C. 2907.02, a felony of the first
degree, and one count of gross sexual imposition, in violation of R.C. 2907.05, a felony of
the fourth degree. Both charges related to an incident on June 7, 2013 involving the same
victim, N.P. Appellant entered a plea of not guilty.
No. 14AP-360                                                                                2

         {¶ 3} Before the trial began, the state noted on the record that the state had
offered a plea deal to appellant: if he entered a guilty plea to the rape charge, the state
would dismiss the gross sexual imposition charge. Appellant's counsel noted he had
advised his client to take the plea offer but that appellant refused and wanted to go to
trial.
         {¶ 4} At trial, appellant wore leg irons at the order of the trial court. The state
presented the testimony of N.P., the victim. N.P., who was 15 years old at the time of trial,
identified appellant as the father of N.P.'s cousin, F.H. N.P. explained that on the evening
of June 6, 2013 she was babysitting for appellant's two daughters. That evening, N.P. and
F.H. fell asleep on the couch in the living room of appellant's house around 11:00 p.m.
When appellant returned home around 5:45 a.m. on June 7, 2013, N.P. said she woke up
from the sound of him coming in the house. Appellant went into the dining room and put
his coat down, then N.P. said appellant walked back to the couch she was sharing with
F.H. and appellant "started feeling on" her. (Tr. 41.)
         {¶ 5} N.P. testified that appellant did not say anything to her when he first
approached her, but he got down on his knees next to the couch. N.P. said appellant first
started touching her upper chest underneath the blanket but on top of her shirt. N.P.
testified that appellant touched her on her breasts twice and kissed her on her forehead.
After he kissed her forehead, N.P. said that appellant "stuck his hand up into [her]
shorts," went inside her underwear, and penetrated her vagina with his fingers. N.P. was
not sure whether appellant used one finger or more than one finger, but she stated
appellant digitally penetrated her two times. (Tr. 44.) As this was happening, N.P.
started kicking her younger cousin to try to wake her up. N.P. testified that she started
screaming, and once F.P woke up, appellant got up and ran upstairs. When appellant ran
away, N.P. said she grabbed F.H., they "both started crying," and then they went back to
sleep. (Tr. 46.)
         {¶ 6} N.P. further testified that appellant woke her up around 9:00 a.m., told her
to get dressed, and "told [her] not to worry, he was going through some shit." (Tr. 49.)
Appellant drove N.P. back to her grandparents' house, and F.H. went into the
grandparents' house, leaving appellant and N.P. alone in the car because appellant asked
N.P. to stay for a minute. Appellant told N.P. "not to tell, and then told [her] again that he
No. 14AP-360                                                                                3

was going through some shit." (Tr. 52.) N.P said she did not say anything in response to
appellant, and she got out of his car and went into her grandparents' house. When she
went inside, N.P. started crying, woke her mother up and told her what had happened.
N.P. said she felt sore on the inside of her genitals. N.P.'s mother called the police, and an
officer came to N.P.'s grandparents' house.        N.P. told the police officer what had
happened, and the officer showed N.P. a picture of appellant on a computer screen which
caused N.P. to start crying again. At the officer's request, N.P. gave the officer the shorts
and underwear she had been wearing at the time of the attack. N.P. said the police officer
drove N.P., her mother, and F.H. to the doctor.
       {¶ 7} When she first arrived at the doctor's office, N.P. spoke with a social worker
who asked N.P. to tell her what had happened. N.P. testified that she told that woman the
truth. N.P. then saw a doctor who performed a physical exam, and N.P. stated she was
truthful with the doctor. Appellant's counsel did not cross-examine N.P.
       {¶ 8} The state next called F.H., the victim's cousin and appellant's daughter.
F.H., who was in fourth grade at the time of trial, testified that during the early morning
hours of June 7, 2013, F.H. fell asleep on the couch with N.P. while they were at F.H.'s
father's house. F.H. woke up to the sound of crying and felt N.P. kicking her. F.H. said
she opened one of her eyes and saw her "dad's head go up and down" by N.P.'s head, so
she closed her eyes again but N.P. kept kicking her. (Tr. 73-75.) She then woke up and
said N.P. jumped up and appellant ran upstairs. F.H. testified that at that point, N.P.
hugged her and told her that appellant had raped N.P. N.P. was crying and told F.H. she
was scared and wanted to go home. F.H. said they tried to tell her stepmother what had
happened but that her stepmother would not listen, and N.P and F.H. went back to sleep.
       {¶ 9} F.H. said she woke up later that morning because appellant, her father,
woke her and N.P. up and told them to get ready to leave. After her father drove the two
girls to their grandparents' house, F.H. said her father told her to get out of the car and
told N.P. he needed to talk to her. F.H. went into the house, and when N.P. came in she
was crying and told her that "[appellant] told me to forgive him." (Tr. 78.) F.H. then
heard N.P. tell her mother that her vagina hurt. F.H. described the arrival of the police
officer and riding along with N.P. to go to the doctor, but she was not in the room with
N.P. when the doctor examined her. Appellant's counsel did not cross-examine F.H.
No. 14AP-360                                                                            4

      {¶ 10} Officer Helen Adrian of the Columbus Division of Police testified that she
responded to a call of a reported sexual assault on the morning of June 7, 2013. Officer
Adrian said that when she arrived at the home, she first spoke with N.P. to make sure she
was not injured and that she did not need immediate medical attention. In the presence
of N.P.'s mother, Officer Adrian asked N.P. to describe what had happened. Officer
Adrian also spoke with F.H., and she said F.H. "corroborated everything that [N.P.] had
said." (Tr. 90.) Officer Adrian explained that she pulled up a photograph of appellant on
her cruiser computer screen because she wanted to know what he looked like in case he
showed up while she was interviewing N.P. but that she did not intend for N.P. to see the
picture. When Officer Adrian called N.P. over to the cruiser to ask her some more
questions, she forgot she had appellant's photograph on the computer screen, and when
N.P. saw the photograph, "she started hyperventilating, she started crying, and she said
that she was going to throw up." (Tr.93-94.)
      {¶ 11} Officer Adrian testified she then collected N.P.'s clothing as evidence and
transported N.P., her mother, and F.H. to the Children's Hospital Advocacy Center.
Officer Adrian turned the evidence bag over to Detective Brubaker. Appellant's counsel
did not cross-examine Officer Adrian.
      {¶ 12} The state then called Dr. Farah Brink, who works as a child abuse
pediatrician at Nationwide Children's Hospital. After testifying about her training and
qualifications, the state moved to declare Dr. Brink an expert in child abuse exams and
appellant's counsel did not object. Dr. Brink was covering the outpatient clinic at the
Children's Advocacy Center on June 7, 2013 when N.P. came in for her exam. Using the
medical records from N.P.'s visit, Dr. Brink testified that N.P. reported "digital genital
contact, * * * kissing to both sides of her neck[,] * * * fondling over her clothes of her
breasts, and she disclosed fondling under her clothes of her genital and anal areas." (Tr.
129.) Dr. Brink described all the different swabs that were collected from the areas of
N.P.'s body in which she indicated physical contact from appellant. After conducting the
physical examination, Dr. Brink did not notice any physical trauma to N.P. but said that
was consistent with the history N.P. provided to her about the interaction with appellant.
Dr. Brink additionally stated that in "females who have been sexually assaulted, greater
than 90 percent of those examinations are normal," meaning there is no physical injury
No. 14AP-360                                                                                 5

detected during the exam. (Tr. 137-38.) When the prosecutor said "your finding no
documentation of trauma does not mean that this little girl was lying," Dr. Brink
responded, "[n]ot at all." (Tr. 139.) Appellant's counsel did not cross-examine Dr. Brink.
        {¶ 13} Abby Schwaderer of the Ohio Bureau of Criminal Investigations ("BCI")
testified about the DNA testing performed in this case. The state offered Schwaderer as
an expert forensic scientist, and appellant's counsel did not object. Schwaderer testified
the DNA testing did not show any DNA foreign to N.P. from the vaginal swabs.
Schwaderer described something called "victim-[m]asking" that is common with vaginal
swabs in which the amount of female DNA present is so concentrated that it can mask any
other DNA that may have been left behind. For three of the skin swabs conducted, both
the victim's DNA was present as well as additional DNA from an unknown source.
Schwaderer said that even though there was no foreign DNA detected inside N.P.'s vagina,
that did not lead to the conclusion that digital penetration did not happen. Appellant's
counsel did not cross-examine Schwaderer.
        {¶ 14} The state's last witness was Jennifer Westgate, the licensed social worker
who interviewed N.P. at the Children's Advocacy Center. The state offered Westgate as an
expert in forensic interviewing, and appellant's counsel did not object.            Westgate
described the general process of interviewing child victims, which includes asking open-
ended questions "in order for the child to be able to provide their own narrative, so [the
social worker is] not putting words in their mouth." (Tr. 189.) She further explained that
before the doctor performs his or her exam, the doctor will talk to the social worker about
what the child discloses in the interview and "that will guide [the doctor's] diagnosis, their
treatment, depending on what type of testing they might do, things of that nature." (Tr.
190.)
        {¶ 15} When Westgate interviewed N.P. on June 7, 2013, she said N.P. told her
that she was babysitting at appellant's house and that when appellant returned home in
the early morning, he "knelt in front of the couch and then grabbed her breasts. She said
she elbowed him, and then he moved his hand up her basketball shorts, moved her
underwear aside and began to rub her private part. She said he rubbed outside of her
private part, and put one to two fingers inside of her private part."           (Tr. 193-94.)
Appellant's counsel objected to this testimony as hearsay, but the trial court overruled the
No. 14AP-360                                                                              6

objection as a statement made for the purpose of medical diagnosis or treatment. Once
again, appellant's counsel did not cross-examine the witness.
       {¶ 16} Appellant testified in his own defense. He said the night of June 6 and into
the morning of June 7, 2013, he consumed "a pretty good deal" of alcohol. (Tr. 205.)
Appellant said he "didn't really remember a whole lot" from that night and that he has "a
problem with alcohol" causing blackouts from time to time. (Tr. 205.) He remembered
talking to N.P. the next morning and telling her he "was going through a lot of shit," and
asking her to forgive him. (Tr. 208.) Appellant said it "broke [his] heart to see [his]
daughter" testify, but that because of his "loss of memory," he does not "have any
defense." (Tr. 211.) On cross examination, the prosecutor asked appellant whether he
could say N.P. and F.H. were lying in their testimony, and he responded he could not say
whether they were or not.
       {¶ 17} Following deliberations, the jury returned guilty verdicts for both counts.
After the trial but before sentencing, on April 9, 2014, the trial court docketed letters it
had received from appellant in which appellant complained about the representation he
received from his trial counsel. The trial court conducted a sentencing hearing on April
16, 2014 and imposed a sentence of five years imprisonment for the rape conviction and
twelve months imprisonment for the gross sexual imposition conviction. The trial court
ordered the sentences to run consecutively for a total aggregate sentence of six years.
Additionally, the trial court classified appellant as a Tier III sexual offender. The trial
court journalized the convictions and sentence in an April 24, 2014 judgment entry.
Appellant timely appeals.
II. Assignments of Error
       {¶ 18} Appellant assigns the following four errors for our review:
              [1.] Appellant was denied his rights to a fair trial, to counsel,
              to present a defense, and to due process contrary to the Ohio
              and United States Constitutions when the trial court ordered
              appellant to wear leg irons throughout trial without adequate
              justification.

              [2.] The repeated instances of improper bolstering of the
              alleged victim's testimony through hearsay statements
              deprived appellant of his state and federal constitutional
              rights to due process and a fair trial under the Fifth and
No. 14AP-360                                                                               7

              Fourteenth Amendments to the United States Constitution
              and Article I, Section 16 of the Ohio Constitution.

              [3.] Appellant was deprived of his rights to a fair trial and due
              process contrary to the Fifth and Fourteenth Amendments to
              the United States Constitution and Article I, Section 16 of the
              Ohio Constitution because a doctor presented opinion
              testimony indicating the alleged victim was not lying about
              the incident.

              [4.] Appellant was deprived of the effective assistance of trial
              counsel in violation of appellant's rights under the Fifth, Sixth,
              and Fourteenth Amendments to the United States
              Constitution, and Section 10 and 16, Article I of the Ohio
              Constitution.

III. First Assignment of Error - Leg Irons
       {¶ 19} In his first assignment of error, appellant argues the trial court violated his
right to due process when it ordered appellant to wear leg irons throughout his trial
without adequate justification.
       {¶ 20} "It is well-established that no defendant should be tried while shackled,
except as a last resort." State v. Chester, 10th Dist. No. 08AP-1, 2008-Ohio-6679, ¶ 5,
citing Illinois v. Allen, 397 U.S. 337, 344 (1970). See also State v. Adams, 103 Ohio St.3d
508, 2004-Ohio-5845, ¶ 104 (stating "we have long recognized that 'no one should be
tried while shackled, absent unusual circumstances' "), quoting State v. Kidder, 32 Ohio
St.3d 279, 285 (1987). The decision whether to shackle a criminal defendant during trial
lies within the sound discretion of the trial court. Chester at ¶ 5, citing State v. Morgan,
84 Ohio App.3d 229, 232 (5th Dist.1992).          "The trial court must exercise its own
discretion and not leave the issue up to security personnel." Adams at ¶ 104, citing
Woodards v. Cardwell, 430 F.2d 978, 981-82 (6th Cir.1970).
       {¶ 21} However, a criminal defendant does not have an absolute right to be free
from shackles during trial. Chester at ¶ 6, citing State v. Blackmon, 10th Dist. No.
94APA05-773 (Feb. 14, 1995). Although shackling is an extreme measure, it is widely
accepted that a defendant may be shackled where there is a danger of violence or escape.
Id., citing State v. Cunningham, 10th Dist. No. 90AP-427 (July 25, 1991), and State v.
Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 79; Adams at ¶ 104. Because the decision
to shackle a defendant is left to the sound discretion of the trial court, the record should
No. 14AP-360                                                                                 8

reflect the factors the trial court considered in exercising its discretion. Chester at ¶ 7,
citing State v. Jones, 10th Dist. No. 02AP-1390, 2003-Ohio-5994, ¶ 24. "Where the
surrounding facts and circumstances illustrate a compelling need to impose exceptional
security procedures, the trial court's exercise of discretion in this regard should not be
disturbed unless its actions are not supported by the evidence before it." Id., citing Jones
at ¶ 25, citing Franklin at ¶ 82.
         {¶ 22} Appellant asserts the trial court abused its discretion in both failing to hold
a hearing on the use of shackles and in ordering appellant to wear the leg irons
throughout the trial. Although the trial court did not hold a separate hearing on the issue
of shackles, prior to jury selection, the courtroom deputy informed the trial court that he
needed to get another pair of larger leg irons that would fit appellant. Thereafter, the
following exchange occurred:
                [DEFENSE COUNSEL]: I don't think he's going to actually
                run. Is there any way we can get the handcuffs because - -

                THE DEPUTY: One's going to be for the other. Leg irons go
                on him.

                THE COURT: I'd rather have him wear leg irons than
                handcuffs so he can have a pen and paper.

                [DEFENSE COUNSEL]: I think if he had neither, he's not
                going to run but - -

                THE DEPUTY: (Unintelligible.)

                [DEFENSE COUNSEL]: So we have to wait for the leg irons
                then?

(Tr. 9.) Thereafter, there was no further discussion on the matter of restraints, and
appellant wore the leg irons for the duration of his trial.
         {¶ 23} As we explained above, the trial court must exercise its own discretion and
not simply defer to security personnel without inquiring into the specific circumstances
requiring courtroom restraints. Here, the record does not reflect the specific factors the
trial court considered before ordering appellant to wear leg irons for the duration of the
trial.   The record is not developed enough to indicate whether the trial court truly
exercised its own discretion or simply deferred to the courtroom deputy.
No. 14AP-360                                                                               9

       {¶ 24} Nevertheless, even if the trial court did not exercise its independent
discretion, we find any error in ordering appellant to wear leg irons was harmless error.
Concluding that the trial court ordered shackling without exercising the required
discretion does not require automatic reversal. Chester at ¶ 11, citing State v. Cardinal,
10th Dist. No. 05AP-992, 2006-Ohio-5088, ¶ 33. " 'A constitutional error can be held
harmless if we determine that it was harmless beyond a reasonable doubt.' " Cardinal at
¶ 33, quoting State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 78.
       {¶ 25} Here, the error was harmless on several bases. First, nothing in the record
indicates the jury ever saw appellant wearing the leg irons. Although appellant asks us to
presume the leg irons made noise whenever appellant moved, this argument is mere
speculation, and there is nothing in the transcript suggesting the jury knew appellant was
wearing leg irons. Chester at ¶ 12, citing State v. Wightman, 12th Dist. No. CA2006-12-
045, 2008-Ohio-95, ¶ 12.
       {¶ 26} Second, the trial court took care to prevent the jury from seeing the leg
irons. When appellant testified, the trial court moved appellant to the witness stand
outside the presence of the jury so that he was already seated before the jury returned.
(Tr. 200-01.) Chester at ¶ 12, citing Wightman at ¶ 12 (the trial court took care to prevent
the jury from seeing the shackles).
       {¶ 27} Third, nothing in the record suggests appellant was unable to effectively
communicate with his counsel due to the leg irons. To the contrary, the trial court
specifically declared its preference for leg irons rather than handcuffs so that appellant
would be able to write down questions he may have for his attorney during the trial.
(Tr. 9.) Chester at ¶ 14, citing Wightman at ¶ 12 (noting the record did not demonstrate
that the shackles inhibited defendant's ability to consult with his attorney or assist in his
defense). Additionally, there is no evidence that the use of leg irons contributed to any
increase in anxiety that might have materially prejudiced or impaired appellant's right to
testify on his own behalf. Id., citing State v. Leonard, 157 Ohio App.3d 653, 2004-Ohio-
3323, ¶ 46 (1st Dist.). Therefore, we conclude any error in ordering appellant to wear leg
irons for the duration of his trial was harmless error. We overrule appellant's first
assignment of error.
No. 14AP-360                                                                              10

IV. Second Assignment of Error - Bolstering
       {¶ 28} In his second assignment of error, appellant argues the trial court erred and
violated appellant's rights to due process and a fair trial in allowing repeated instances of
what he characterizes as "improper bolstering" of N.P.'s testimony. Appellant asserts the
testimony of F.H., Officer Adrian, Dr. Brink, and Westgate all included impermissible
hearsay. Generally, the admission or exclusion of evidence lies in the sound discretion of
the trial court. State v. Darazim, 10th Dist. 14AP-203, 2014-Ohio-5304, ¶ 33, citing State
v. Bartolomeo, 10th Dist. No. 08AP-969, 2009-Ohio-3086, ¶ 24. As appellant concedes,
however, his counsel did not object to the testimony at trial, and thus our review is limited
to plain error.   State v. Jackson, 92 Ohio St.3d 436, 444 (2001), citing State v.
Underwood, 3 Ohio St.3d 12 (1983), syllabus; Crim.R. 52(B).             An appellate court
recognizes plain error with the utmost caution, under exceptional circumstances, and only
to prevent a miscarriage of justice. State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-
5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139.
       {¶ 29} For an error to be a "plain error" under Crim.R. 52(B), it must satisfy three
prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error
must be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the error
must have affected "substantial rights," meaning the error must have affected the
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
       {¶ 30} Appellant complains about seven separate instances of testimony that he
characterizes as impermissible hearsay used to improperly bolster N.P.'s testimony. More
specifically, appellant challenges (1) F.H.'s testimony repeating what N.P. had told her the
day of the sexual assault; (2) Officer Adrian's testimony that F.H. corroborated what N.P.
had told her; (3) Officer Adrian's testimony that N.P. said she was going to vomit after
seeing a picture of appellant; (4) Officer Adrian's testimony that N.P. told her the assault
occurred at a different location; (5) Dr. Brink's testimony regarding the medical record
compiled the day of N.P.'s visit to the Child Advocacy Center; (6) Dr. Brink's testimony
reciting the narrative history of the incident that N.P. had reported to the social worker;
and (7) Westgate's testimony regarding her interview with N.P. Appellant argues all of
this alleged hearsay testimony was used only for the improper purpose of convincing the
jury that N.P.'s testimony had been truthful.
No. 14AP-360                                                                               11

       {¶ 31} A statement is inadmissible hearsay when it is an out-of-court statement
offered for the truth of the matter asserted.       Evid.R. 801(C) and 802.        There are
exceptions to the hearsay rule, however, and those exceptions are listed in Evid.R. 803
and 804. We will examine each of the seven specific instances of testimony that appellant
argues were improper to determine whether the trial court plainly erred in allowing the
testimony.
       A. F.H.'s Testimony
       {¶ 32} Appellant first challenges the portion of F.H.'s testimony in which F.H.
recounted what N.P. said to her on June 7, 2013. More specifically, appellant argues the
following statements made by F.H. were impermissible hearsay used only to bolster N.P.'s
credibility: (1) "[N.P.] hugged me and told me that my dad raped her" (Tr. 74); (2) "[N.P.]
said, I'm scared. I want to go home. I want my mom. And that's all she said, and then
after all of that, she said, [y]our dad raped me" (Tr. 74-75); (3) "She said, [y]our dad raped
me. I'm scared, and I want to go home" (Tr. 76); (4) "[I] said, I thought that was a dream.
And she said, No, it wasn't. It's real" (Tr. 77); (5) "And she said, [y]our dad told me to
forgive him" (Tr. 78); and (6) "[N.P.] went to go grease her hair and said, My hoonoo
(phonetic) hurt," which F.H. explained to mean her private part (Tr. 79).
       {¶ 33} One of the enumerated exceptions to the hearsay rule is an excited
utterance. Pursuant to Evid.R. 803(2), "[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" is not excluded by the hearsay rule. To be an admissible excited
utterance, (1) there must occur an event startling enough to produce a nervous excitement
in the declarant; (2) the statement must be made while the declarant is still under the
stress of excitement the event caused; (3) the statement must relate to the startling event;
and (4) the declarant must have personally observed the startling event.             State v.
Harrison, 10th Dist. No. 06AP-827, 2007-Ohio-2872, ¶ 17, citing State v. Taylor, 66 Ohio
St.3d 295 (1993). Additional factors for the court to consider include the lapse of time
between the event and the statement, the mental and physical condition of the declarant,
the nature of the statement, and the influence of any intervening circumstances. Id.,
citing State v. Patterson, 11th Dist. No. 96-T-5439 (May 22, 1998).
No. 14AP-360                                                                              12

       {¶ 34} With regard to the first four statements above, N.P. made those statements
to F.H. almost immediately after the rape occurred. N.P. was able to wake up F.H. which
caused appellant to run upstairs, and then N.P. told F.H. what had just transpired. Being
the victim of a sexual assault is an event startling enough to produce nervous excitement,
and the immediacy of the statements indicates N.P. was still under the stress of
excitement when she made them. The fifth statement above occurred just after appellant
drove N.P. and F.H. to their grandparents' house and appellant asked N.P. to stay in the
car alone with him. Being isolated with the perpetrator of a sexual assault that had just
occurred hours earlier is enough to create a separate startling event that would produce
nervous excitement in N.P. Therefore, we conclude the first five statements were excited
utterances within the definition provided in Evid.R. 803(2) and thus were not
impermissible hearsay.
       {¶ 35} Another enumerated exception to the hearsay rule is a statement describing
a then-existing mental, emotional, or physical condition. Evid.R. 803(3) provides that
"[a] statement of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily
health)" is not excluded by the hearsay rule. The sixth statement above, that N.P. told
F.H. that her "hoonoo" hurt, is a statement describing a then-existing physical condition
and is therefore admissible under Evid.R. 803(3).
       B. Officer Adrian's Testimony
       {¶ 36} Appellant next challenges Officer Adrian's testimony.         First, appellant
argues Officer Adrian's testimony that F.H. "corroborated everything that [N.P.] had said"
was impermissible hearsay used to bolster F.H.'s testimony. (Tr. 90.) "In general,
statements offered by police officers explaining their conduct while investigating a crime
'are not hearsay because they are not offered for their truth, but, rather, are offered as an
explanation of the process of investigation.' " Bartolomeo at ¶ 17, quoting State v.
Warren, 8th Dist. No. 83823, 2004-Ohio-5599, ¶ 46. Here, Officer Adrian was describing
her general investigatory process as she gathered information about the incident. She was
not explicitly vouching for the credibility of F.H. or N.P. but was explaining that F.H. told
her the same thing that N.P. told her while she was investigating. Further, the declarant,
F.H., testified at trial and her testimony during direct examination was to the same effect
No. 14AP-360                                                                             13

as Officer Adrian's statement. Id. (noting that even if the testimony was improper, the
declarant testified at trial alleviating the normal concerns of hearsay statements).
       {¶ 37} Similarly, Officer Adrian's testimony that N.P. told her the incident
occurred at another location was not offered for the truth of the matter asserted but was a
description of Officer Adrian's investigatory process relating to the need to collect
evidence. Thus, this statement was not impermissible hearsay.
       {¶ 38} Additionally, Officer Adrian's testimony that N.P. "said she was going to
throw up" when she saw the picture of appellant on the police cruiser computer was not
impermissible hearsay. (Tr. 94.) N.P.'s statement was a description of her then-existing
physical condition and was inadmissible under Evid.R. 803(3), as we outlined above.
       C. Dr. Brink's Testimony
       {¶ 39} Appellant further argues portions of Dr. Brink's testimony included
impermissible hearsay used to bolster N.P.'s credibility.       Dr. Brink identified state's
exhibit C, a medical report that appellant argues contained hearsay, opinions, and
evidence not supported by other testimony in the record. (State's Exhibit C.) Under
Evid.R. 803(4), "[s]tatements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment" are excepted from the hearsay rule.
Appellant does not point out what, specifically, in the medical records constitutes
inadmissible hearsay, other than noting that the records include notes from Ebony Cherry
and Dr. Megan Letson who did not testify. However, even if we were to agree that
portions of State's Exhibit C contain hearsay, the medical records are cumulative to the
testimony presented at trial, including Dr. Brink's testimony about her physical exam of
N.P., Westgate's testimony about her interview with N.P., and N.P.'s testimony about the
incident itself. Appellant does not explain how the inclusion of these notes in the medical
record, even if error, would have affected the outcome of the trial. Thus, the admission of
State's Exhibit C does not amount to plain error.
       {¶ 40} Dr. Brink also testified about the narrative history of the incident provided
to her by Westgate. She explained that she relies on the information she receives from the
social worker in these types of cases so that she does not have to unnecessarily make the
No. 14AP-360                                                                             14

victim answer the same questions more than once. (Tr. 119.) Thus, these statements were
not offered for the truth of the matter asserted, and we do not agree that this testimony
was hearsay. Additionally, this testimony falls into the exception to hearsay stated in
Evid.R. 803(4) for statements made for the purposes of medical diagnosis or treatment.
Dr. Brink used Westgate's statements to determine a course of medical examination and
treatment.
       D. Westgate's Testimony
       {¶ 41} Finally, appellant challenges portions of Westgate's testimony, the licensed
social worker and forensic interviewer who interviewed N.P. at the Children's Advocacy
Center. Westgate testified about what N.P. told her during the interview, and appellant's
attorney objected to this line of testimony, arguing it was inadmissible hearsay. Because
there was an objection to this testimony, we need not apply the plain error standard and
instead look to whether the trial court abused its discretion in admitting the testimony.
Darazim at ¶ 16 (stating "[a] trial court has broad discretion over the admission or
exclusion of evidence, and a reviewing court generally will not reverse an evidentiary
ruling absent an abuse of discretion that materially prejudices the affected party"), citing
Andrew v. Power Marketing Direct, Inc., 10th Dist. No. 11AP-603, 2012-Ohio-4371, ¶ 73,
citing State v. Issa, 93 Ohio St.3d 49, 64 (2001).
       {¶ 42} When appellant objected at trial, the state responded that the statements of
the social worker were admissible as statements made for purposes of medical diagnosis
or treatment under Evid.R. 803(4), and the trial court agreed.           Appellant argues
Evid.R. 803(4) should not apply because the social worker is not a medical professional.
Appellant relies on State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, which held at
paragraph one of the syllabus, "[s]tatements made to interviewers at child-advocacy
centers that serve primarily a forensic or investigative purpose are testimonial and are
inadmissible pursuant to the Confrontation Clause when the declarant is unavailable for
cross-examination."
       {¶ 43} Appellant's reliance on Arnold is misplaced for two reasons.            First,
appellant's argument ignores the second paragraph of the syllabus of Arnold which states
"[s]tatements made to interviewers at child-advocacy centers that are made for medical
diagnosis and treatment are nontestimonial and are admissible without offending the
No. 14AP-360                                                                              15

Confrontation Clause." Id. at paragraph two of the syllabus. This holding is consistent
with this court's previous holdings that " '[t]he [hearsay] exception set forth in
Evid.R. 803(4) extends to statements made to social workers as long as the purpose of the
statement is part of initiation of medical diagnosis or treatment.' " State v. Vance, 10th
Dist. No. 06AP-1016, 2007-Ohio-4407, ¶ 70, quoting State v. Jordan, 10th Dist. No.
06AP-96, 2006-Ohio-6224, ¶ 20, citing State v. Nasser, 10th Dist. No. 02AP-1112, 2003-
Ohio-5947, ¶ 52. Westgate explained that her interview with N.P. was intended to assist
the examining physician in making her diagnosis and deciding on the appropriate
treatment. (Tr. 189-90.) The statements N.P. made to Westgate were for purposes of
medical diagnosis and treatment and were not elicited in an interrogation-like
atmosphere as appellant contends. Second, paragraph one of the syllabus in Arnold is
explicit that the statements violate the Confrontation Clause only when the declarant is
unavailable for cross-examination.      Arnold at paragraph one of the syllabus.        N.P.
testified here, so there was no concern regarding the Confrontation Clause. See also
Vance at ¶ 70 (noting that where the social worker was repeating statements made to her
by the victim and the victim testified at trial and was subject to cross-examination, the
admission of the social worker's statements do not violate the appellant's right to due
process and right to confront witnesses under the Sixth Amendment to the United States
Constitution and the Tenth Amendment to the Ohio Constitution), citing State v. Boyer,
10th Dist. No. 06AP-05, 2006-Ohio-6992, ¶ 18.
       {¶ 44} Thus, all of the above testimony falls within legitimate exceptions to the
hearsay rule, or, in the case of State's Exhibit C, does not amount to plain error.
Additionally, much of appellant's argument suggests the testimony of these witnesses
could be interpreted by the jury as vouching for the veracity of N.P. However, " '[o]nly
statements directly supporting the veracity of a child witness are prohibited under [State
v. Boston, 46 Ohio St.3d 108, 129 (1989)].' " State v. L.E.F., 10th Dist. No. 13AP-1042,
2014-Ohio-4585, ¶ 29, quoting State v. Cashin, 10th Dist. No. 09AP-367, 2009-Ohio-
6419, ¶ 20, citing State v. Rosas, 2d Dist. No. 22424, 2009-Ohio-1404, fn. 1. " '[I]ndirect
bolstering of a victim's credibility is not the same as the direct rendering of an opinion as
to a victim's veracity that was involved in Boston.' " Id., quoting Cashin at ¶ 20.
Furthermore, here, as in L.E.F., the victim testified at trial and the jury was able to
No. 14AP-360                                                                                16

independently ascertain her credibility. Id. For all of the foregoing reasons, the trial court
did not err when it allowed these seven instances of testimony. We overrule appellant's
second assignment of error.
V. Third Assignment of Error - Doctor's Opinion Testimony
       {¶ 45} In his third assignment of error, appellant argues the trial court erred in
allowing Dr. Brink's opinion testimony about whether N.P. was being truthful. Appellant
challenges two exchanges between the prosecutor and Dr. Brink.              In the first, the
prosecutor asked, "Are these findings consistent, in your expert medical opinion, with the
history she gave to you folks?" Dr. Brink responded, "Yes." (Tr. 137.) In the second
exchange, the prosecutor asked, "And your finding no documentation of trauma does not
mean that this little girl was lying?" to which Dr. Brink responded "Not at all." (Tr. 139.)
As appellant concedes, appellant's counsel did not object to either of these exchanges, so
we again limit our review to plain error.
       {¶ 46} In Boston, the Supreme Court of Ohio held that "[a]n expert may not testify
as to the expert's opinion of the veracity of the statements of a child declarant." Boston at
syllabus. In Boston, the child victim's pediatrician was "allowed to express her opinion
that [the child victim] had not fantasized her abuse and that [the child victim] had not
been programmed to make accusations against [the defendant]."               Id. at 128.   The
Supreme Court concluded this testimony had the effect of "declar[ing] that [the child
victim] was truthful in her statements," and thus the admission of that testimony was
improper, prejudicial, and amounted to reversible error. Id.
       {¶ 47} The Supreme Court has since clarified its holding in Boston. In State v.
Stowers, 81 Ohio St.3d 260 (1998), the Supreme Court explained that while "Boston's
syllabus excludes expert testimony offering an opinion as to the truth of a child's
statements (e.g., the child does or does not appear to be fantasizing or to have been
programmed, or is or is not truthful in accusing a particular person)," the Boston syllabus
"does not proscribe testimony which is additional support for the truth of the facts
testified to by the child, or which assists the fact finder in assessing the child's veracity."
Stowers at 262-63. (Emphasis sic.) The Stowers decision explained that trial courts must
"distinguish between expert testimony that a child witness is telling the truth and
No. 14AP-360                                                                                   17

evidence which bolsters a child's credibility insofar as it supports the prosecution's efforts
to prove that a child has been abused." Id. at 262. (Emphasis sic.)
         {¶ 48} As we noted in our resolution of appellant's second assignment of error, this
court has noted the careful distinction between direct opinion testimony about a child's
veracity and indirect bolstering of a victim's credibility. L.E.F. at ¶ 29, citing Cashin at
¶ 20. Here, Dr. Brink did not offer an opinion as to whether N.P. was telling the truth
about her allegation or telling the truth that it was appellant who perpetrated the sexual
assault. Instead, Dr. Brink's testimony was to explain why a lack of physical trauma on
N.P.'s body did not mean a physician could rule out sexual abuse.
         {¶ 49} Additionally, even if we were to conclude Dr. Brink's testimony amounted to
improper bolstering, any error in admitting the testimony would be harmless error.
" 'Recent case law states that "Boston does not apply when the child victim actually
testifies and is subjected to cross-examination." ' " State v. Roush, 10th Dist. No. 12AP-
201, 2013-Ohio-3162, ¶ 61, quoting State v. Benjamin, 8th Dist. No. 87364, 2006-Ohio-
5330, ¶ 19, quoting State v. Curren, 5th Dist. No. 04 CA 8, 2005-Ohio-4315, ¶ 26. "When
the child victim testifies, the trier of fact is 'able to ascertain the credibility of the victim;
whereas, in Boston, there was no independent indicia of reliability save for the expert
witness who vouched for the child victim.' " Id., quoting Benjamin at ¶ 16. Thus, any error
in admitting expert testimony regarding the veracity of a child victim is harmless beyond
a reasonable doubt " 'if the victim testifies and is subject to cross examination, the state
introduces substantial medical evidence of sexual abuse, and the expert's testimony is
cumulative to other evidence.' " Id. at ¶ 62, quoting State v. Kincaid, 9th Dist. No.
94CA005942 (Oct. 18, 1995).
         {¶ 50} Here, N.P. testified and was available for cross-examination, allowing the
jury to judge N.P.'s credibility independently from Dr. Brink's testimony. Additionally,
there was substantial medical evidence of sexual abuse from N.P.'s visit to the Children's
Advocacy Center. Finally, Dr. Brink's testimony was cumulative to other evidence at trial,
including the testimony of N.P. herself, and the testimony of F.H., Officer Adrian, and
Westgate. Thus, for all of these reasons, appellant cannot demonstrate plain error from
the trial court's admission of this testimony. We overrule appellant's third assignment of
error.
No. 14AP-360                                                                                18

VI. Fourth Assignment of Error - Ineffective Assistance of Counsel
       {¶ 51} In his fourth and final assignment of error, appellant argues he was
deprived of his constitutional right to the effective assistance of counsel. In order to
prevail on a claim of ineffective assistance of counsel, appellant must satisfy a two-prong
test. First, he must demonstrate that his counsel's performance was deficient. Strickland
v. Washington, 466 U.S. 668, 687 (1984). This first prong requires appellant to show that
his counsel committed errors which were "so serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. If appellant can so
demonstrate, he must then establish that he was prejudiced by the deficient performance.
Id. To show prejudice, appellant must establish there is a reasonable probability that, but
for his counsel's errors, the result of the trial would have been different. A "reasonable
probability" is one sufficient to undermine confidence in the outcome of the trial. Id. at
694.
       {¶ 52} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
Appellant contends his trial counsel was ineffective in (1) failing to object to the use of leg
irons; (2) failing to make an effective opening statement; (3) failing to cross-examine any
of the state's witnesses; (4) failing to object to repeated alleged hearsay statements;
(5) failing to object to Dr. Brink's opinion testimony about N.P.'s veracity; (6) failing to
object to the trial court declaring Westgate an expert in forensic interviewing; (7) failing to
object to evidence of appellant's prior criminal record; (8) calling appellant as a witness or
failing to effectively prepare appellant to testify; and (9) failing to make an effective
closing statement.
       A. Leg Irons, Alleged Hearsay Statements, and Opinion Testimony
       {¶ 53} Appellant's first, fourth, and fifth instances of alleged ineffective of counsel
reflect appellant's assignments of error on appeal. Because appellant's trial counsel failed
to object to these alleged errors, we reviewed appellant's arguments under a plain error
standard, and, in disposing of appellant's first three assignments of error, we concluded
appellant was unable to demonstrate the outcome of his trial would have been different
had it not been for these errors. " '[W]here the failure to object does not constitute plain
No. 14AP-360                                                                               19

error, the issue cannot be reversed by claiming ineffective assistance of counsel.' " State v.
Roy, 10th Dist. No. 14AP-223, 2014-Ohio-4587, ¶ 20, quoting State v. Carson, 10th Dist.
No. 05AP-13, 2006-Ohio-2440, ¶ 51. Having previously held, in addressing appellant's
first, second, and third assignments of error, that the conduct complained of either did
not constitute error or did not rise to the level of plain error, we conclude appellant's
argument in this regard fails to satisfy the second prong of the Strickland test.
        {¶ 54} With respect to appellant's first, fourth, and fifth instances of alleged
ineffective assistance of counsel, we find appellant has failed to demonstrate that trial
counsel committed errors so serious that, but for these errors, there would be a
reasonable probability that the outcome of the trial would have been different. Carson at
¶ 52.
        B. Opening and Closing Statements
        {¶ 55} Appellant next argues his trial counsel was ineffective in failing to make an
effective opening or closing statement. Given the brevity of both the opening and closing
statements, we include them in their entirety to guide our discussion.
        {¶ 56} By way of opening statement, appellant's trial counsel stated:
               Good morning. As the prosecutor pointed out, this is basically
               a road map that we're laying out for you. While these are
               serious charges, this will be a relatively short case. There is
               not a whole lot for me to lay out. The state must prove what
               they have laid out beyond a reasonable doubt. Each and every
               one of you promised to remain fair and impartial until you
               have heard all of the evidence, received the law, and are in the
               jury room and debating this issue. I am confident that you
               will. Thank you.

(Tr. 29-30.) Appellant argues this opening statement was deficient in failing to refute
any of the prosecutor's allegations made in the state's opening statement and in failing to
offer the defense's own "roadmap" of how the case would unfold. However, appellant
points to no authority indicating his counsel was required to make a more detailed
opening statement. To the contrary, counsel's decision to give only a brief opening
statement may have been a strategic decision given the damaging evidence against
appellant. This court has previously concluded that even trial counsel's decision to forego
an opening statement altogether does not constitute ineffective assistance of counsel
No. 14AP-360                                                                                    20

where the decision may have been a tactical choice. State v. Horton, 10th Dist. No. 06AP-
311, 2007-Ohio-4309, ¶ 45.
       {¶ 57} For the closing argument, appellant's counsel stated:
               I told you at the beginning of this trial it's going to be a
               relatively short trial. So there's not really a whole lot for
               closing arguments. You are the finders of fact. You determine
               credibility. However, I will remind you that the state has the
               burden of proof in proving each and every element beyond a
               reasonable doubt. You have heard from the witnesses; you
               have heard from the defense. He did not have to testify. It's
               his constitutional right not to testify, but he did. You heard
               what he had to say. He has pled not guilty. He stands on his
               not guilty, and we are confident that you will do your duty.
               Thank you.

(Tr. 225-26.) Appellant argues his trial counsel's closing statement was deficient in
failing to discuss the difficulty of proving guilt beyond a reasonable doubt, failing to
discuss the presumption of innocence, failing to point out the lack of physical evidence
supporting the state's case, and failing to point out possible bias in the state's witnesses.
       {¶ 58} While we agree with appellant that his trial counsel certainly could have
said more to advocate on his client's behalf, appellant does not point to anything in the
closing argument that amounts to prejudice sufficient to satisfy the second prong of
Strickland. Further, the evidence at trial against appellant was overwhelming, so defense
counsel's decision not to rehash or highlight that evidence may have been a tactical
decision. "Tactical or strategic trial decisions, even if ultimately unsuccessful, will not
substantiate a claim of ineffective assistance of counsel." State v. Ryan, 10th Dist. No.
08AP-481, 2009-Ohio-3235, ¶ 77, citing In re M.E.V., 10th Dist. No. 08AP-1097, 2009-
Ohio-2408, ¶ 34.
       C. Failure to Cross - Examine the State's Witnesses
       {¶ 59} Appellant further argues his trial counsel was ineffective in failing to cross-
examine any of the state's witnesses. Indeed, the record reflects that appellant's trial
counsel did not ask a single question to any one of the state's witnesses on cross-
examination.
       {¶ 60} "The scope of cross-examination falls within the ambit of trial strategy, and
debatable trial tactics do not establish ineffective assistance of counsel." Conway at ¶ 101,
No. 14AP-360                                                                               21

citing State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 45. Trial counsel's
decision not to cross-examine N.P. and F.H., both minors, is a reasonable and
understandable trial tactic given the sensitive nature of this case. Indeed, appellant stated
during his testimony that he "didn't want to add insult to injury by bringing the girls in
this court."   (Tr. 210.)   Admittedly, while counsel may not have exercised the best
judgment in not cross-examining the state's other witnesses, appellant cannot
demonstrate that this decision, even if indicative of a deficient performance, amounted to
prejudice under the second prong of Strickland. Id. at ¶ 102. N.P.'s testimony, standing
alone, was sufficient to convict appellant of both charges beyond a reasonable doubt, and,
as we already stated, counsel's decision not to cross-examine the child victim of a sexual
assault does not amount to ineffective assistance of counsel.
       D. Failure to Object to Declaration of an Expert
       {¶ 61} Appellant argues his trial counsel was ineffective in failing to object to the
state's offering Westgate as an expert in forensic interviewing. Appellant characterizes
Westgate's job responsibilities as simply asking N.P. questions, and appellant argues that
role is not beyond a lay person's knowledge or experience.
       {¶ 62} Under Evid.R. 702(B), an expert may be qualified by specialized knowledge,
skill, experience, training, or education to give an opinion that will assist the jury in
understanding the evidence and determining a fact at issue. Neither certification nor
special education is required to confer expert status upon a witness. State v. Hunt, 10th
Dist. No. 12AP-103, 2013-Ohio-5326, ¶ 57, citing State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, ¶ 32.        The witness offered as an expert need not have complete
knowledge of the field in question as long as he or she possesses knowledge that will aid
the trier of fact in performing its factfinding function. Id., citing Drummond at ¶ 113.
       {¶ 63} Pursuant to Evid.R. 702:
               A witness may testify as an expert if all of the following apply:
               (A) The witness' testimony either relates to matters beyond
               the knowledge or experience possessed by lay persons or
               dispels a misconception common among lay persons;

               (B) The witness is qualified as an expert by specialized
               knowledge, skill, experience, training, or education regarding
               the subject matter of the testimony;
No. 14AP-360                                                                               22

              (C) The witness' testimony is based on reliable scientific,
              technical, or other specialized information.

The Supreme Court has held that professional experience and training in a particular field
may be sufficient to qualify one as an expert. State v. Mack, 73 Ohio St.3d 502, 511
(1995).
       {¶ 64} Westgate testified that she is a licensed social worker and that she has both
a bachelor's and master's degree in social work. She described her experience working in
numerous homes performing case therapy, case management, and treatment. She further
described her position as a forensic interviewer at the Children's Advocacy Center, and
she explained the licensing process involved in becoming a forensic interviewer. Westgate
testified she had performed about a thousand interviews of children who have been
sexually abused during her career. (Tr. 185-87.) This testimony was sufficient for the trial
court to declare Westgate an expert under Evid.R. 702.
       {¶ 65} Additionally, even if we were to agree with appellant that it was error for his
counsel to fail to object to Westgate's expert status, appellant does not articulate how
Westgate's qualification as an expert prejudiced him. Though he argues generally that
opinion testimony can be damaging, he does not cite anything specific regarding
Westgate's testimony. As we noted in our resolution of appellant's second assignment of
error, Westgate's testimony regarding the statements N.P. made during their interview
were admissible as statements made for purposes of medical diagnosis or treatment
under Evid.R. 803(4) even without her status as an expert. Thus, we conclude appellant
is unable to demonstrate ineffective assistance of counsel from his trial counsel's failure to
object to the declaration of Westgate as an expert.
       E. Failure to Object to Evidence of Appellant's Prior Criminal Record
       {¶ 66} During Officer Adrian's testimony, Officer Adrian explained how she
obtained a photograph of appellant while she was in her police cruiser. Officer Adrian
stated that she went through photographs "we already had in our database." (Tr. 92.)
Appellant argues that his counsel's failure to object to this statement amounted to
ineffective assistance of counsel because it alerted the jury that appellant had a prior
criminal record.
No. 14AP-360                                                                                23

        {¶ 67} We disagree with appellant.        Officer Adrian did not testify that the
photograph of appellant was a mug shot or a Department of Rehabilitation and
Corrections photograph. She simply said it was a photograph already in her database
without specifying what that database was. It is entirely possible that appellant's counsel
chose not to object so as not to highlight any evidence linking appellant to a prior criminal
record. We do not agree with appellant that this tactical decision satisfies even the first
prong of the Strickland test.
        F. Calling Appellant as a Witness or Failing to Adequately Prepare
        Appellant to Testify

        {¶ 68} Appellant next argues his trial counsel was ineffective for either calling
appellant as a witness in his own defense or in failing to adequately prepare appellant to
testify. We agree with appellant that his testimony at trial was largely damaging to his
case and did not aid his defense.
        {¶ 69} In general, a decision to allow a defendant to testify in his own defense
constitutes a tactical decision.    See State v. Washington, 10th Dist. No. 98AP-1489
(Nov. 9, 1999). There is nothing in the trial record indicating appellant was testifying
either in conformance with or in direct contradiction with his counsel's wishes. It is
possible defendant insisted on testifying on his own behalf even though he had been
advised not to. We cannot find ineffective assistance of counsel from trial counsel's
calling appellant to testify where appellant relies on merely speculative arguments. State
v. Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738, ¶ 57. Further, appellant cannot
demonstrate that his testimony prejudiced the outcome of trial.            Even without his
admittedly damaging testimony, the state had already presented ample evidence of
appellant's guilt. Thus, appellant is unable to satisfy the second prong of the Strickland
test.
        {¶ 70} As to appellant's argument that his trial counsel was ineffective for failing to
adequately prepare him to testify, the record again does not demonstrate the requisite
prejudice for the second prong of Strickland. Although appellant sent a letter to the trial
court following the verdict, but before sentencing, in which he complained about his
counsel's representation and accused his counsel of failing to prepare for the trial,
appellant does not explain how his counsel's lack of preparation for appellant's testimony
No. 14AP-360                                                                               24

can overcome the other evidence at trial establishing appellant's guilt. Even accepting as
true appellant's allegation that his counsel did not properly prepare him to testify, we are
limited by the second prong of Strickland, and appellant has failed to demonstrate the
requisite prejudice from his counsel's lack of preparation for appellant's testimony. See
State v. Woodman, 10th Dist. No. 99AP-694 (Mar. 30, 2000) (concluding that even
though defendant's counsel inadequately prepared for appellant's sexual predator
hearing, the record does not disclose how the defendant was prejudiced from that failure
and therefore the defendant failed to show ineffective assistance of counsel).
       G. Cumulative Effect of Errors
       {¶ 71} Appellant finally argues that even if we conclude that none of the above nine
alleged errors are sufficient to find ineffective assistance of counsel standing alone, the
cumulative effect of these errors nonetheless resulted in appellant being denied a fair trial.
       {¶ 72} Appellant relies on State v. DeMarco, 31 Ohio St.3d 191 (1987) for the
proposition that although errors at trial singularly "may not rise to the level of prejudicial
error, a conviction will be reversed where the cumulative effect of the errors deprives a
defendant of the constitutional right to a fair trial." Id. at paragraph two of the syllabus.
Appellant urges us to conclude that his trial counsel's many errors, when considered
together, deprived him of a fair trial. State v. Sieng, 10th Dist. No. 99AP-282 (Dec. 30,
1999) (concluding that "the improper bolstering of [a witness'] testimony and the
character attacks on defendant" was enough for the defendant to show by a reasonable
probability that the results of the proceeding would have been different but for his
counsel's unprofessional errors), citing DeMarco at 196.
       {¶ 73} We agree with appellant that his counsel's overall performance, when
considered cumulatively, is sufficient to satisfy the first prong of Strickland. His
performance in failing to ask a single question on cross-examination of any of the state's
witnesses, in only lodging one objection throughout the entire trial, in making only the
most minimal of opening and closing statements, and in possibly failing to prepare his
client to testify, taken together, was deficient.
       {¶ 74} Even though we agree that appellant was able to demonstrate his counsel's
overall performance was deficient under the first prong of Strickland, we are nonetheless
constrained by the second prong of Strickland which requires appellant to demonstrate
No. 14AP-360                                                                             25

that but for his counsel's performance, the outcome of the proceedings would have been
different. Here, there was ample evidence to convict appellant. Although appellant
complains about his counsel's various failures in regard to that evidence, we not do find
that appellant can overcome the fact that the victim testified very clearly about what
happened in this case. The decision not to cross-examine the victim was a reasonable trial
tactic given the victim's age and the sensitive nature of the case. In light of the victim's
testimony, we conclude appellant is unable to demonstrate the requisite prejudice under
the second prong of Strickland. Accordingly, we overrule appellant's fourth assignment of
error.
VII. Disposition
         {¶ 75} Based on the foregoing reasons, any error in ordering appellant to wear leg
irons was harmless error, and the trial court did not plainly err in relation to allowing
alleged hearsay statements and improper opinion testimony. Additionally, appellant was
unable to demonstrate ineffective assistance of counsel under the second prong of
Strickland.    Having overruled appellant's four assignments of error, we affirm the
decision of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                             TYACK and BROWN, JJ., concur.
