[Cite as State v. Garfield, 2011-Ohio-2606.]


STATE OF OHIO                      )                   IN THE COURT OF APPEALS
                                   )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                          C.A. No.     09CA009741

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
EDWARD MILLER GARFIELD                                 COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   05CR068734

                                  DECISION AND JOURNAL ENTRY

Dated: May 31, 2011



        MOORE, Judge.

        {¶1}      Appellant, Edward Garfield, appeals from the judgment of the Lorain County

Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}      On September 7, 2005, the Lorain County Grand Jury indicted Mr. Garfield on

one count of rape of a victim younger than 13 years of age in violation of R.C. 2907.02(A)(1)(b),

a felony of the first degree.

        {¶3}      From August 24, 2009, through August 28, 2009, the case was tried to a jury. On

August 28, 2009, the jury returned a verdict of guilty. On November 25, 2009, the trial court

sentenced him to life imprisonment and notified him of his classification as a Tier III sex

offender.

        {¶4}      Mr. Garfield timely filed a notice of appeal. He raises ten assignments of error

for our review.
                                                 2


                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
       SUPPORT A FINDING BEYOND A REASONABLE DOUBT THAT [MR.
       GARFIELD] WAS GUILTY OF RAPE.”

                                 ASSIGNMENT OF ERROR II

       “[MR. GARFIELD’S] RAPE CONVICTION IS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.”

       {¶5}    In his first and second assignments of error, Mr. Garfield contends that that his

conviction for rape is supported by insufficient evidence and is against the manifest weight of the

evidence. Specifically, Mr. Garfield contends that his conviction is against the manifest weight

of the evidence because there is no physical evidence, E.B.’s testimony was unreliable, the

forensic interview was conducted improperly and suggestively, and his wife and brother-in-law

were more credible than E.B. and C.F. We do not agree.

       {¶6}    Mr. Garfield’s argument with respect to sufficiency is based on the credibility of

various witnesses, particularly the victim. Because an examination of the sufficiency of the

evidence requires this Court to view the evidence in the light most favorable to the State, State v.

Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, credibility is not implicated.

Accordingly, we review his first and second assignments of error to determine if his conviction is

against the manifest weight of the evidence.

       {¶7}    A determination of whether a conviction is against the manifest weight of the

evidence does not permit this court to view the evidence in the light most favorable to the State

to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. No.

21654, 2004–Ohio–1422, at ¶11. Rather,
                                                 3


       “an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339,
       340.

This discretionary power should be invoked only in extraordinary circumstances when the

evidence presented weighs heavily in favor of the defendant. Id.

       “No person shall engage in sexual conduct with another who is not the spouse of
       the offender or who is the spouse of the offender but is living separate and apart
       from the offender, when any of the following applies: * * * The other person is
       less than thirteen years of age, whether or not the offender knows the age of the
       other person.” R.C. 2907.02(A)(1)(b).

“Sexual conduct” is defined to include, among other things, “cunnilingus between persons

regardless of sex[.]” R.C. 2907.01(A).

       {¶8}    E.B., born February 26, 1997, first came in contact with Mr. Garfield when she

began kindergarten. He drove her school bus. Beginning around the summer of 2004, E.B.’s

mother became employed part-time.         E.B.’s mother, Mr. Garfield, and his wife, Christine

Garfield, agreed that the Garfields would babysit for E.B. and her older brother, C.F. At the

time, C.F. was 11 years old. At the time of trial in 2009, E.B. was 12 years old.

       {¶9}    Despite mathematical impossibility, E.B. testified that Mr. Garfield began

performing oral sex on her while babysitting when she was six years old. Although she was

clearly seven years old when the incidents occurred, E.B. insisted repeatedly that the sexual

abuse began when she was six years old and ended when she was seven years old. She testified

that the first incident occurred when, immediately after she arrived, he took her upstairs at his

townhouse apartment. In the computer room, she noticed a piece of quartz that she liked. Mr.

Garfield told her that he would give it to her if she did something for him. He then played a

computer file depicting a man performing oral sex on a woman. So E.B. testified that she took
                                                 4


off her pants and panties and he laid her on the floor. He then licked her vagina for a few

minutes. She then put her pants back on and he gave her the quartz. They went downstairs and

Mr. Garfield was surprised to see that E.B.’s mother was still at the apartment. At that time, he

also gave C.F. a piece of quartz.

       {¶10} E.B. testified that similar events happened almost every time that he babysat her

with the exception of the rare occasions that his wife was home. She also testified that he

sometimes used a stopwatch that he would set for five minutes, stopping after the time expired.

She testified that he used the stopwatch on at least one occasion when C.F. was outside playing

with friends. He sometimes played a “game” with her in which he would have her disrobe and

stand or sit in the bedroom closet for 15-20 minutes and afterwards he would perform oral sex on

her. She testified that if she was not quiet, he would make her wait longer in the closet. He

played this “game” with her between four and five times. He also “helped” her study spelling.

She lay down and spelled words. When she made a mistake he made her pull her pants down in

increments. If they came all the way off, then he would perform oral sex on her.

       {¶11} E.B. testified that at various times, he told her that “this is our little secret, don’t

tell your mom, don’t tell your brother[.]”

       {¶12} She also recounted an incident the night before the Garfields and Mrs. Garfield’s

brother, James Tisler, took her to the Great Lakes Medieval Faire on a Saturday. E.B. and Tisler

spent the night at the Garfields’ apartment the night before traveling to the event because the

group wanted to leave early in the morning. E.B. testified that on Friday night, when Mrs.

Garfield and her brother went out to pick up chicken for dinner, Mr. Garfield made her lie down

and take her pants off. He then performed oral sex on her.
                                                 5


       {¶13} After the summer ended, he babysat for the children much less often. E.B. stated

that the incidents continued but this time they occurred in her mother’s apartment, where he had

now begun babysitting.     E.B. also testified that when her family moved from the apartment she

promised that she would tell him the location of her new home but she crossed her fingers behind

her back. She never told him the new location. Late in the fall, however, C.F. realized that he

left some DVDs at the Garfields’ apartment. Upon hearing that they would have to return to the

Garfields’, E.B. broke down and started crying uncontrollably, saying that she could not go back

to the apartment. C.F. had to contact their mother because he could not calm E.B. When their

mother arrived, E.B. told her that Mr. Garfield “was touching [her] in wrong places.”

       {¶14} On cross-examination, E.B. admitted that she never told the police about the

spelling “game” because she did not believe it to be “relevant” until she discussed the case with

the prosecutor. In explaining why she did not complain at the time, E.B. stated that, “At the

time, it was sort of like I was being brainwashed. He seemed like a nice guy. He seemed like a

good guy. As far as I knew, it was normal.”

       {¶15} On re-direct examination, E.B. testified to frequently viewing Law & Order:

Special Victims Unit, a television show that frequently involves sexual crimes.

       {¶16} Jane Robertson, a manager at Lorain County Children’s Services with extensive

training regarding sexual abuse, testified regarding child sexual abuse and delayed disclosure.

She testified that delayed disclosure is extremely common in child-sex-abuse cases. This is

because children are taught to listen to adults and abusers often threaten, bribe, and coerce

children in an effort to avoid disclosure. As a result, abused children are frequently afraid adults

will not believe them because it becomes a question of whom to believe: the child or the abuser.

Children also have difficulty discerning right versus wrong in these situations. Children need a
                                                6


feeling of safety to disclose sexual abuse and this feeling of safety can come from the knowledge

that they will no longer come in contact with the abuser. Robertson further testified that physical

exams are not typically employed in delayed disclosure cases unless penetration has occurred or

an instrument was used in the abuse. In cases limited to oral sex, exams are typically not

employed and this type of abuse rarely leads to physical evidence, especially in cases of delayed

disclosure.

        {¶17} On cross-examination she stated several factors that should be considered in

attempting to confirm abuse, including: secrecy; “the delayed disclosure; who the perpetrator is;

the details of the disclosure; how detailed; how much did they remember; did they remember

dates; did they remember time frames; did they remember what the person looked like; what --

any identifying information on that person, a birthmark that no one else would have seen[.]”

Investigators should look for consistency in details, as well as consistency with things that a

child of that age should know. She also admitted that she was not familiar with any of the details

of this case.

        {¶18} Detective Eric van Kerkhove also testified in the State’s behalf. On February 4,

2005, he began investigating this case. He testified that the events took place during the summer

of 2004 and that E.B. was seven years old at the time. He also acknowledged that E.B. never

told him about the stopwatch, the closet “game,” or the spelling “help” to which she testified. He

explained that there was no physical evidence due to the delayed disclosure and because the

abuse did not include penetration.

        {¶19} During the detective’s testimony, the State also played a video of the detective

and a Children’s Services worker interviewing E.B. During the interview she appears generally

confident and outgoing, to the point that she demands that the detective turn off his personal tape
                                                7


recorder. She then removed the cassette. She identified what “private touches” are and the parts

of the body that constitute private touches, including the breasts, buttocks and vagina. She also

circled the male and female private areas on two pictures.   She stated that Mr. Garfield gave her

private touches. When she was asked to explain his private touches further she hid under the

table. She indicated that he licked her and pointed to the vagina and buttocks of the female

picture. She also stated that she licked him and she pointed to the penis. She then said that it

tastes “icky.” She described his yo-yo, her word for penis, as soft and stated that “white stuff”

comes out of it. After repeated prodding, she says that the “white stuff” felt gooey. She

explained that the events occurred upstairs, that C.F. was always outside when the events

occurred, and that Mrs. Garfield worked so she was rarely home. She also indicated that he did

not stop when she asked him to do so. E.B. explained that he instructed her not to tell her mom

or she would not be allowed to see him anymore. She also explained that she did not report the

abuse to her mother because she was afraid that her mom would not like her afterward.

        {¶20} The video included statements of E.B. from which a reasonable inference can be

drawn that she had been previously interviewed. When E.B. was asked where she attends

school, she responded that the Children’s Services worker should have known the answer to that

question. Additionally, at the end of the interview, the Children’s Services worker broached the

subject of E.B.’s pet rabbit and the fact that her family was building the rabbit a “condo.” From

the context of the discussion, it is clear that the Children’s Services worker already knew about

the rabbit.

        {¶21} Mr. Garfield presented three witnesses in his defense: his wife, his brother-in-law

and Jolie Brams, Ph.D. Christine Garfield testified that she and her husband began babysitting

for E.B. and C.F. during the summer of 2004. During June, the babysitting took place at E.B.
                                                 8


and C.F.’s home, but due to the heat and the fact that the Garfields’ apartment had air

conditioning, they began babysitting at their apartment. Their babysitting duties consisted of

making sure that the children each took a bath and that someone helped E.B. rinse conditioner

out of her hair. E.B. and C.F. were to bathe twice per week. E.B. was unable to work the spigot

so Mr. Garfield would draw a bath for her and then she would undress and bathe by herself until

she was ready to rinse the conditioner out of her hair. At that time, she always specifically called

for Mr. Garfield. Mrs. Garfield further testified that she was home every day and that she was

always in the computer room during bath time. The computer room is directly across the hall

from the bathroom, five or six feet away. She also stated that when school started in the fall, Mr.

Garfield sometimes tutored E.B. in English and reading. Finally, she testified that she and Mr.

Garfield each own a wristwatch and that he has an old stopwatch but it had never worked, was

not digital, and could not be used as a timer. She also testified that C.F. was a “tv-aholic” and

virtually never left the apartment. She stated that the only time she knew of him venturing

outside of the apartment was to talk to a girl in the apartment complex. However, she testified

that the conversation was short-lived because the girl already had a boyfriend.

       {¶22} On cross-examination she admitted that she worked from 11 a.m. until 8 p.m. and

that babysitting took place from 5 p.m. until 10 or 10:30 p.m. On re-direct examination she

testified that she did not leave the apartment to get food during the evening before the trip to the

Great Lakes Medieval Faire.

       {¶23} James Tisler, Mrs. Garfield’s brother, also testified. He stated that E.B. seemed

outgoing, confident, and happy. Further, he stated that he arrived on the morning of the Faire,

rather than on Friday night.
                                                   9


        {¶24} Mr. Garfield’s final witness was Jolie Brams, Ph.D., a licensed psychologist with

significant experience counseling sexual abuse victims and consulting in legal matters. Dr.

Brams testified that the timing of disclosure in sexual abuse is important because memory, being

fluid and malleable, can be influenced by others. In typical cases, the child has spoken to several

people prior to providing a forensic statement. The number of prior interviews has a significant

impact on the accuracy of their statements. Additionally, people tend to enhance memories over

time. These enhancements can stem from many sources such as things said by family, television

programs, and peer influence. She also testified that seven-year-old children do not have the

cognitive capacity to use the word “relevant” or, especially in relation to sexual abuse, to make a

determination regarding the relevance of various details. Children often report abuse but name

an individual other than the actual perpetrator because they are crying out for help but remain

afraid of the consequences. Also, once a perpetrator has been identified inaccurately it is

socially difficult to alter the statement to identify the actual abuser.

        {¶25} Dr. Brams also testified regarding the forensic interview that was presented by

videotape to the jury. She indicated the following concerns about the forensic interview process

in this case: 1) the core of the interview involved the detective asking E.B. to confirm statements

rather than answer open-ended questions; 2) the Children’s Services employee was present and

pre-interviews had obviously taken place; and 3) the detective obviously wanted E.B. to make

certain statements and he eventually elicited them by repeating the questions. Dr. Brams also

noted certain inconsistencies in E.B.’s behavior during the interview. For example, E.B. was so

confident that she demanded that the detective stop his tape recorder and she then physically

removed the cassette. However, when discussing details related to the incidents, she hid. She

was also oppositional; at one point informing the detective that she would answer two more
                                                 10


questions before terminating the interview. Finally, there were significant differences between

E.B.’s demeanor and verbalizations. Most importantly, it was significant that while discussing

difficult issues regarding the sexual abuse accusations, E.B. was drawing a picture depicting a

smiling Mr. Garfield.

       {¶26} After the defense rested, the State called C.F. as a rebuttal witness. C.F. testified

that he was 11 years old during the summer of 2004. He stated the Mr. Garfield never watched

them at their apartment. He also testified that although he watched a significant amount of

television, he made some friends in the Garfields’ apartment complex, including a girlfriend, and

spent time outside. He also testified that Mr. Garfield and E.B. would disappear upstairs alone

for long periods of time, sometimes as much as two hours.

       {¶27} Mr. Garfield is correct that no physical evidence implicates him. However, given

the nature of the offenses and the delayed disclosure, testimony indicated that physical evidence

was unlikely to exist. Moreover, “there is no requirement, statutory or otherwise, that a victim’s

testimony be corroborated as a condition precedent to a conviction.” State v. Adams, 9th Dist.

No. 05CA008685, 2005-Ohio-4360, at ¶13, citing State v. Sklenar (1991), 71 Ohio App.3d 444,

448. Mr. Garfield also contended that E.B.’s testimony was contradicted by Mrs. Garfield and

her brother. Dr. Bram’s testimony questioned the validity of E.B.’s testimony as well as the

contents of the forensic interview. Mrs. Garfield’s testimony was in many ways contradicted by

C.F.’s testimony. E.B. clearly testified, however, that on numerous occasions during the summer

of 2004 Mr. Garfield performed oral sex on her. Although E.B. was confused about her actual

age, it is a mathematical fact that E.B. was seven years old at the time of the incidents. “The

weight to be given the evidence and the credibility of the witness[es] are primarily for the trier of

the facts[,]” in this case, the jury. State v. Jackson (1993), 86 Ohio App.3d 29, 32, citing State v.
                                                11


Richey (1992), 64 Ohio St.3d 353, 363. The issue of whether E.B.’s testimony was coached, as

Mr. Garfield contends, was, therefore, one for the jury. After reviewing the entire record,

weighing the inferences and examining the credibility of the witnesses, we cannot say that the

jury in finding Mr. Garfield guilty of rape of a child less than 13 years old created a manifest

miscarriage of justice. Otten, 33 Ohio App.3d at 340.

       {¶28} Accordingly, Mr. Garfield’s first and second assignments of error are overruled.

                                ASSIGNMENT OF ERROR III

       “THE TRIAL COURT ERRED IN ADMITTING THE DVD INTO
       EVIDENCE.”

       {¶29} In his third assignment of error, Mr. Garfield contends that the trial court erred in

admitting the DVD recording of the forensic interview of E.B. into evidence. We do not agree.

       {¶30} Mr. Garfield provides two reasons why the trial court should not have admitted

the recording of E.B.’s forensic interview into evidence. The first is that the DVD “was never

listed as an exhibit, even when the State updated discovery prior to trial.”       Mr. Garfield,

however, provides no citation to authority in support of this contention. App.R. 16(A)(7). The

State correctly argues that the DVD was provided in pre-trial discovery and that the interview

participants were all disclosed as potential witnesses. He did not identify, nor did this Court

find, any order or local rule from the trial court requiring the submission of exhibit lists.

Moreover, the testimony from his expert witness, Dr. Brams, demonstrates that she had ample

opportunity to review and testify about the contents of the DVD. He did not contend on appeal

that the DVD was not timely disclosed during discovery. Accordingly, error, if any, with respect

to the State’s failure to list the DVD as an exhibit is harmless. Crim.R. 52(A).

       {¶31} The second basis for his contention that the DVD should have been excluded

from the trial is founded upon Evid.R. 403. Mr. Garfield contends that the trial court failed to
                                                12


conduct a balancing test to determine “if its probative value is substantially outweighed by the

danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R.

403(A). We do not address the merits of this contention, however, because he has forfeited the

argument based upon Evid.R. 403(A) and did not argue plain error on appeal.

       {¶32} Evid.R. 103(A)(1) provides that an objection to the admission of evidence must

include the specific ground of the objection unless it is apparent from the context. This Court

“need not consider an error which a party complaining of the trial court’s judgment could have

called, but did not call, to the trial court’s attention at a time when such error could have been

avoided or corrected by the trial court.” State v. Williams (1977), 51 Ohio St.2d 112, paragraph

one of the syllabus, vacated in part on other grounds Williams v. Ohio (1978), 438 U.S. 911. The

failure to timely lodge an objection forfeits the issue for appellate review. State v. Gray, 9th

Dist. No. 08CA0057, 2009-Ohio-3165, at ¶7. A forfeited objection may form the basis of a

plain-error argument. Id., citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶23.

This Court generally will not, however, undertake a plain-error analysis when the appellant has

failed to assert such an argument in his brief. See State v. Hairston, 9th Dist. No. 05CA008768,

2006-Ohio-4925, at ¶11.

       {¶33} At trial, Mr. Garfield’s challenge to the admissibility of the DVD was based upon

its absence from an exhibit list and its failure to satisfy the business record exception to Evid.R.

802. he did not argue that the probative value of the forensic interview was substantially

outweighed by concerns of unfair prejudice, confusion of the issues or of misleading the jury

under Evid.R. 403(A). For these reasons, he forfeited his argument based on Evid.R. 403(A).

Gray at ¶7. He did not argue plain error and we will not create a plain-error argument on his

behalf. Hairston at ¶11.
                                                  13


         {¶34} Accordingly, Mr. Garfield’s third assignment of error is overruled.

                                  ASSIGNMENT OF ERROR IV

         “THE TRIAL COURT ERRED IN PERMITTING THE STATE TO
         INTRODUCE A SURPRISE WITNESS DURING THE COURSE OF TRIAL
         WHO WAS NOT LISTED IN PRE-TRIAL DISCOVERY AND WHO
         DRAMATICALLY UNDERMINED [MR. GARFIELD’S] PROFFERED
         DEFENSE. THIS DENIED [HIM] DUE PROCESS UNDER THE STATE AND
         FEDERAL CONSTITUTIONS.”

         {¶35} In his fourth assignment of error, Mr. Garfield contends that the trial court erred

in permitting the State to introduce a surprise witness during the course of trial who was not

listed in pre-trial discovery and who dramatically undermined his proffered defense. We do not

agree.

         {¶36} “The philosophy of the Criminal Rules is to remove the element of gamesmanship

from a trial. The state should furnish upon a proper demand the names of all witnesses it

reasonably anticipates it is likely to call, whether in its case-in-chief or in rebuttal.” State v.

Howard (1978), 56 Ohio St.2d 328, 333.

         {¶37} At the time of trial, Crim.R. 16(E)(3), which governs the regulation of discovery,

provided the following:

         “Failure to comply. If at any time during the course of the proceedings it is
         brought to the attention of the court that a party has failed to comply with this rule
         or with an order issued pursuant to this rule, the court may order such party to
         permit the discovery or inspection, grant a continuance, or prohibit the party from
         introducing in evidence the material not disclosed, or it may make such other
         order as it deems just under the circumstances.”

         {¶38} The trial court has discretion to determine what sanction to impose for a violation

of Crim.R. 16(E)(3). State v. Finnerty (1989), 45 Ohio St.3d 104, 107. Accordingly, we review

a trial court’s decision to impose or forego sanctions for an abuse of discretion. State v. Jackson,

9th Dist. No. 24650, 2009-Ohio-4863, at ¶13. Under this standard, we must determine whether
                                                 14


the trial court’s decision was arbitrary, unreasonable, or unconscionable.             Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion standard, this

Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd.

(1993), 66 Ohio St.3d 619, 621.

        {¶39} In this case, the State attempted to call C.F., E.B.’s brother, as its first witness in

its case-in-chief. The State neglected, however, to disclose C.F. in its pre-trial discovery. Mr.

Garfield objected and the State realized that it had inadvertently failed to disclose C.F. as a

potential witness. The trial court noticed that C.F. had been subpoenaed but not listed as a

witness. The prosecutor stated that “Actually, I will not at this point call him. * * * I’m going to

try to do some last minute supplemental discovery, if I could.” The State chose instead to begin

presentation of its case by calling E.B. to testify. After the State rested and the defense presented

its case, the State attempted to call C.F. on rebuttal to specifically rebut the testimony of

Garfield’s wife as to C.F.’s activities while at the Garfields’ home, as well as her absence during

bath time. The trial court specifically limited C.F.’s testimony, telling the prosecutor that “you’ll

limit it to issues of rebuttal.” C.F. testified in rebuttal two days after the State attempted to call

him to testify in the State’s case-in-chief.

        {¶40} In light of the fact that the defense had two-days’ notice before C.F. actually

testified, that the subpoena provided some notice of his appearance at trial, and that the court

limited his testimony to rebuttal only, we cannot say that the trial court abused its discretion.

Blakemore, 5 Ohio St.3d at 219. Additionally, the defense did not ask for a continuance of trial

to prepare for this witness; instead it sought only exclusion, the most serious sanction. See

Finnerty, 45 Ohio St.3d at 107. Mr. Garfield contends that if his counsel had been given

additional time to prepare for C.F.’s testimony, then his counsel could have secured the DVD
                                                 15


recording of C.F.’s interview with the Child Advocacy Center for cross-examination purposes.

Garfield has not directed this Court to any portion of the record that suggests C.F. was

interviewed by the Child Advocacy Center and this Court, having reviewed the entire transcript

of proceedings, as well as the full contents of the court docket for this case, has likewise failed to

find any reference to such an interview. We cannot conclude that this ruling significantly

hampered counsel’s ability to cross-examine C.F.

       {¶41} Accordingly, Mr. Garfield’s fourth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR V

       “THE TRIAL COURT ERRED IN RULING THAT THE TESTIMONY OF
       CHRISTINE GARFIELD WAS HEARSAY.”

       {¶42} In his fifth assignment of error, Mr. Garfield contends that the trial court erred in

ruling that his wife’s testimony was hearsay.

       {¶43} During the direct examination of Mrs. Garfield, counsel attempted to elicit

statements made by E.B.’s mother to Mrs. Garfield during a phone call. The State objected and

the court sustained the objection. Mr. Garfield now contends that the trial court should have

admitted his wife’s statements. Because he failed to preserve this issue for appellate review and

failed to argue plain error, we do not reach the merits of this assignment of error.

       {¶44} Evid.R. 103(A)(2) provides that:

       “Error may not be predicated upon a ruling which admits or excludes evidence
       unless a substantial right of the party is affected, and * * * [i]n case the ruling is
       one excluding evidence, the substance of the evidence was made known to the
       court by offer or was apparent from the context within which questions were
       asked. Offer of proof is not necessary if evidence is excluded during cross-
       examination.”

In State v. Henderson, 2d Dist. No. 19445, 2003-Ohio-312, the Second District Court of Appeals

applied Evid.R. 103(A)(2) to hold that a defendant waived (forfeited) for purposes of appeal the
                                                  16


argument that a witness’ testimony should have been admitted. Id. at ¶33. The basis for the

court’s decision was that Henderson failed to make a proffer to the trial court regarding the

substance of the testimony. Id. As noted above, the failure to properly preserve an evidentiary

issue under Evid.R. 103 forfeits the issue for appellate review. See Gray at ¶7. A failure of

preservation does not, however, foreclose plain-error review. Id., citing Payne at ¶23; Evid.R.

103(D).

          {¶45} Mr. Garfield failed to proffer the testimony that his wife would have provided had

the court allowed her to answer counsel’s question. On appeal, he now attempts to proffer the

testimony and explain its purpose. He cannot circumvent Evid.R. 103 in this manner. As above,

he has not argued plain error and we will not construct such an argument for him. See Hairston

at ¶11.

          {¶46} Accordingly, Mr. Garfield’s fifth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR VI

          “THE TRIAL COURT ERRED IN ALLOWING THE DATES IN THE
          INDICTMENT AND BILL OF PARTICULARS TO BE AMENDED DURING
          TRIAL.”

          {¶47} In his sixth assignment of error, Mr. Garfield contends that that trial court erred in

allowing the State to amend the dates in the indictment and bill of particulars during trial. We do

not agree.

          {¶48} With respect to amendment of the indictment and bill of particulars, Crim.R. 7(D)

provides as follows:

          “The court may at any time before, during, or after a trial amend the indictment,
          information, complaint, or bill of particulars, in respect to any defect,
          imperfection, or omission in form or substance, or of any variance with the
          evidence, provided no change is made in the name or identity of the crime
          charged. If any amendment is made * * * to cure a variance between the
          indictment * * * and the proof, the defendant is entitled to a discharge of the jury
                                               17


       on the defendant’s motion * * * and to a reasonable continuance, unless it clearly
       appears from the whole proceedings that the defendant has not been misled or
       prejudiced by the defect or variance. * * * [N]o appeal based upon such action of
       the court shall be sustained nor reversal had unless, from consideration of the
       whole proceedings, the reviewing court finds that a failure of justice resulted.”

A bill of particulars, however, can be amended at any time subject only “to such conditions as

justice requires.” Crim.R. 7(E). Generally, an indictment need not set forth precise dates and

times. State v. Sellards (1985), 17 Ohio St.3d 169, 171. Frequently in instances of abuse spread

out over long periods of time young children are unable to remember, and thus the State cannot

supply, exact times and dates. State v. Smith (Dec. 30, 1991), 12th Dist. No. CA91-06-104, at

*3. “[A]bsent material detriment to the preparation of a defense, the omission of specific dates

and times is without prejudice, and without constitutional consequence.” State v. Barnecut

(1988), 44 Ohio App.3d 149, 151.

       {¶49} At the close of the State’s case the prosecutor moved to amend the bill of

particulars and the indictment to conform to the evidence regarding the time the offense

occurred. The original indictment stated that the rape occurred “on or about June 1, 2004

through July 31, 2004[.]” The court allowed the State to amend the indictment to include “June

1, 2003 to Aug 1, 2004[.]” The original bill of particulars stated that E.B. “was approximately

six years old at the time of the incident.” The court allowed the State to amend the bill of

particulars to state that the victim was “6 or 7 years old.” Here, Mr. Garfield did not move for a

continuance or to discharge the jury. Instead, he contended that the court “should not [grant the

motion] simply because -- to make it look more palatable to the State when their witnesses don’t

conform to the expected testimony.”

       {¶50} In State v. Evans, 4th Dist. No. 08CA3268, 2010-Ohio-2554, the Fourth District

Court of Appeals encountered an analogous situation in which the court allowed the State to
                                                18


amend the dates in the indictment. Id. at ¶36. The appellate court noted that at all times the

defendant was charged with causing the same injury, the amendment merely added an additional

period of time during which that injury may have occurred. Id. As occurred here, Evans did not

ask for a continuance. Id. at ¶38.   For that reason, the appellate court determined that the trial

court did not abuse its discretion in allowing the amendment. Id. at ¶36.

       {¶51} We, too, conclude that the trial court did not abuse its discretion in allowing the

amendment. Each of the State’s witnesses, with the exception of the victim, E.B., identified the

time period of the offense as the summer of 2004. Mrs. Garfield also testified that the events

took place at that time. E.B. testified that she was born in February of 1997. Mathematically

speaking, if the events occurred in 2004, E.B. was seven years old at the time. E.B. testified,

however, that the events began when she was six and ended “a little bit into seven.” The

prosecutor repeatedly attempted to have E.B. correct this testimony, going so far as to ask E.B. to

count the years from 1997 to 2004. E.B. then agreed that she was seven. The prosecutor then

said, “So it would have been, you would have been between six and seven?” and she answered,

“Yes.” Regardless of the confusion on E.B.’s part, Detective Kerkhove clearly testified that the

events occurred during the summer of 2004 and that he began investigating the case in early

2005. Mrs. Garfield testified that they only watched E.B. and C.F. during 2004. C.F. also

testified that the events took place in 2004 and that E.B. was seven years old at the time. The

evidence that the events took place during the summer of 2004 was overwhelming. In light of

this evidence regarding the time frame, Garfield’s contention that he was prejudiced by having

little time to develop and prove an alibi for 2003 is unavailing. Moreover, the difference

between 2003 and 2004 carried no significance with relation to the substance of the charge. Mr.

Garfield was charged with raping a victim who was under the age of 13. Whether E.B. was six
                                                19


or seven is immaterial to the charge. See Sellards, 17 Ohio St.3d at 172. His contention that the

amendment of the indictment to conform to E.B.’s testimony sent “a message to the jury that the

victim’s testimony is more credible or more important than the actual facts” is similarly

unfounded. If anything, the amendment of the indictment to conform to obviously incorrect

testimony from E.B., the victim and the State’s most valuable witness, served only to highlight

her inconsistency and damage her credibility. Similarly, because the testimony overwhelmingly

indicated that he only babysat E.B. in 2004, amending the bill of particulars did not prejudice his

ability to present an alibi for 2003 because no testimony was presented that he had any contact

with her during that time. For these reasons, we cannot say that the trial court abused its

discretion in allowing the State to amend the indictment and bill of particulars. Blakemore, 5

Ohio St.3d at 219.

       {¶52} Accordingly, Mr. Garfield’s sixth assignment of error is overruled.

                               ASSIGNMENT OF ERROR VII

       “THE TRIAL COURT ERRED IN RULING THAT THE ORIGINAL
       INDICTMENT WAS INADMISSIBLE.”

       {¶53} In his seventh assignment of error, Mr. Garfield contends that the trial court erred

in ruling that the original indictment and bill of particulars were inadmissible. We do not agree.

       {¶54} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the

syllabus. Mr. Garfield suggests on appeal that the bill of particulars and original indictment are

relevant because they tend to make it more or less probable that E.B.’s testimony was untruthful

or had been coached.     He does not cite any case law holding that a bill of particulars is

admissible evidence under these circumstances. App.R. 16(A)(7).
                                                 20


       {¶55} Mr. Garfield never made an attempt to admit the original indictment. Instead, he

opposed the State’s motion in limine and argued in favor of presenting the original bill of

particulars. A court’s ruling on a motion in limine does not preserve issues related to evidentiary

rulings for appeal. Gray at ¶7. A party seeking to admit evidence that was the subject of the

opposing party’s successful motion in limine must attempt to admit the evidence at trial in order

to preserve the issue for appellate review. His contentions are thus forfeited and limited to plain

error. Id. He did not argue plain error in this assignment and we will not make such an

argument on his behalf. Hairston at ¶11.

       {¶56} Accordingly, Mr. Garfield’s seventh assignment of error is overruled.

                               ASSIGNMENT OF ERROR VIII

       “[MR. GARFIELD] WAS NOT AFFORDED THE EFFECTIVE
       ASSI[S]TANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH
       AMENDMENT OF THE UNITED STATES CONS[T]ITUTION AND
       ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”

       {¶57} In his eighth assignment of error, Mr. Garfield contends that at trial he was

prejudiced by ineffective assistance of counsel. On appeal, he presents four bases in support of

his contention: 1) trial counsel denied him of his right to testify; 2) trial counsel failed “to make

sure any motions to suppress the DVD were settled or addressed before trial[;]” 3) trial counsel

made a mockery of him at trial due to his interest in astrology; and 4) trial counsel asked E.B. an

inappropriate question during cross-examination. We do not agree.

       {¶58} In order to show ineffective assistance of counsel, Mr. Garfield must satisfy a

two-prong test. Strickland v. Washington (1984), 466 U.S. 668, 669. First, he must show that

his trial counsel engaged in a “‘substantial violation of any * * * essential duties to his client.’”

State v. Bradley (1989), 42 Ohio St.3d 136, 141, quoting State v. Lytle (1976), 48 Ohio St.2d

391, 396. Second, he must show that his trial counsel’s ineffectiveness resulted in prejudice.
                                                 21


Bradley, 42 Ohio St.3d at 141-142, quoting Lytle, 48 Ohio St.2d at 396-397. “Prejudice exists

where there is a reasonable probability that the trial result would have been different but for the

alleged deficiencies of counsel.” State v. Velez, 9th Dist. No. 06CA008997, 2007-Ohio-5122, at

¶37, citing Bradley, 42 Ohio St.3d at paragraph three of the syllabus. This Court need not

address both Strickland prongs if he fails to prove either one. State v. Ray, 9th Dist. No. 22459,

2005-Ohio-4941, at ¶10.

       {¶59} Mr. Garfield contends that trial counsel denied him of his right to testify and that

trial counsel failed “to make sure any motions to suppress the DVD were settled or addressed

before trial.” With respect to his first two contentions in support of a determination that trial

counsel was ineffective, we are unable to determine whether trial counsel substantively violated

an essential duty or, assuming that a violation occurred, that he was prejudiced as a result. The

State correctly contends that any attempt to evaluate these arguments would necessarily require

this Court to resort to information outside the record. In the record before us there is no evidence

regarding Mr. Garfield’s election not to testify; similarly, he has provided no basis upon which a

motion to suppress the DVD interview of E.B. could be granted, especially in light of our

disposition of his third assignment of error. “[A] direct appeal is not the appropriate context to

present evidence outside the record.” State v. Mitchell, 9th Dist. No. 24730, 2009-Ohio-6950, at

¶20. Instead, these issues are “‘more suitable to postconviction relief, where this additional

evidence could be presented.’” Id., quoting State v. Ushry, 1st Dist. No. C-050740, 2006-Ohio-

6287, at ¶43.

       {¶60} With respect to Mr. Garfield’s contention that trial counsel made a mockery of his

interest in astrology, we disagree. On appeal, he cited to but one instance in which counsel took

any action related to his interest in astrology. As counsel’s first line of voir dire questioning, she
                                                22


asked many jurors in succession the day and month of their birthdays. The transcript reveals that

this questioning was quick and devoid of extraneous details. Counsel made no reference to the

thought process behind the question. He further contends that he was prejudiced by counsel’s

failure to object when the prosecutor cross-examined his wife regarding birthdays.             The

prosecutor asked, “Does he like, does he have some type of issue with a person’s birthday, date

of birth, other than their year?” She replied that they study astrology and that it has been a hobby

of theirs for some time. While this information may not have been particularly relevant and

might technically have been objectionable, he has failed to demonstrate any prejudice flowing

from the questions. Ray at ¶10.

       {¶61} Finally, Mr. Garfield contends that trial counsel was ineffective because, while

cross-examining E.B. as to why she never screamed or yelled for him to stop, counsel asked,

“Did you want him to do that to you?” The State contends that the question constituted a trial

tactic because Mr. Garfield’s theory of the case was that E.B. fabricated the events. The State

suggests that counsel’s goal was for E.B. to indirectly impeach herself. We need not delve that

deeply into the rationale behind counsel’s single question. While perhaps in bad taste and ill-

considered, Mr. Garfield has not demonstrated that the lone question resulted in any discernible

prejudice, particularly prejudice so severe that the trial outcome would have been different.

Velez at ¶37.

       {¶62} Accordingly, Mr. Garfield’s eighth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR IX

       “THE TRIAL COURT ERRED IN NOT ALLOWING AN EVALUATION OF
       THE VICTIM AND EXPERT TESTIMONY.”
                                                 23


       {¶63} In his ninth assignment of error, Mr. Garfield contends that the trial court erred in

not granting a motion for an evaluation of the victim and corresponding expert testimony. We

do not agree.

       {¶64} Initially, we observe that the court did allow him to present expert testimony

regarding the interview procedures employed in questioning E.B. during the investigation of the

underlying events. The court also allowed the expert to advise trial counsel regarding potential

cross-examination issues. The question Mr. Garfield actually presents is whether the trial court

abused its discretion in ruling that his expert could not independently interview E.B. He did not,

however, cite any authority in support of this assignment of error beyond an acknowledgement

that we review determinations regarding the admissibility of expert testimony for an abuse of

discretion, citing Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 616. App.R. 16(A)(7).

       {¶65} On August 29, 2008, Mr. Garfield filed a motion for evaluation of E.B., which

was combined with a “motion for pre-trial taint hearing to determine reliability of complaining

witness’ testimony.” The motion included several references to law review articles suggesting

that the manner of investigation is critical to the validity of child testimony in sexual abuse cases.

On November 13, 2008, the State filed a brief in opposition to the motion. On November 21,

2008, the trial court denied the motion on the authority of State v. Collier (July 27, 2000), 8th

Dist. No. 76433, citing State v. Boston (1989), 46 Ohio St.3d 108, and this Court’s decision in

State v. Stutts (Jan. 2, 1991), 9th Dist. No. 90CA004879.

       {¶66} This Court has held that a trial court “may, in its sound discretion, order a

prosecuting witness to submit to a psychological examination upon the request of a defendant.”

Stutts, 9th Dist. No. 90CA004879, at *3. However, the Stutts Court also observed that these

motions carry with them several critical considerations. Id. First, the motions may be used to
                                                24


intimidate and harass witnesses. Id. Second, “evaluating the victim’s credibility through expert

testimony is clearly impermissible.” Id., citing Boston, 46 Ohio St.3d at the syllabus; State v.

Moreland (1990), 50 Ohio St.3d 58, syllabus. Finally, Ohio’s Rape Shield Law, codified in R.C.

2907.02(D) significantly limits the scope of any examination. Id., citing State v. Tomlinson

(1986), 33 Ohio App.3d 278, 279.

       {¶67} Viewing this case through the prism of the considerations identified in Stutts, we

cannot say that the trial court abused its discretion in denying the motion for a psychological

evaluation and hearing regarding pre-trial taint. Mr. Garfield’s expert had the opportunity to

evaluate the recorded forensic interview of E.B. From E.B.’s answers to questions recorded in

the forensic interview, Dr. Brams was able to determine that she had likely been interviewed

numerous times previous to the forensic interview. Dr. Brams subsequently testified to the

effects that repeated interviews can have on a child victim’s recollection. Dr. Brams was also

able to identify and describe proper interview guidelines and inform the jury of the instances in

the forensic interview that failed to adhere to the guidelines. Dr. Brams was also able to identify

and testify to inconsistencies between E.B.’s words and her actions, such as discussing difficult

topics while drawing a smiling picture of Mr. Garfield’s face. And again, Dr. Brams was

available to assist trial counsel in developing questions for cross-examination. In light of the

information that Dr. Brams was able to glean from the forensic interview and the resulting aid

she was able to provide to the defense, we cannot say that the trial court abused its discretion in

denying Mr. Garfield’s motion to perform a psychological examination on E.B.

       {¶68} Accordingly, Mr. Garfield’s ninth assignment of error is overruled.

                                ASSIGNMENT OF ERROR X

       “THE CUMULATIVE EFFECT OF THE TRIAL COURT’S ERRORS DENIED
       [MR. GARFIELD] A FAIR TRIAL.”
                                                  25


       {¶69} In his tenth assignment of error, Mr. Garfield contends that the cumulative effect

of the trial court’s errors denied him a fair trial. We do not agree.

       {¶70} To support a claim of cumulative error, there must be multiple instances of

harmless error. State v. Garner (1995), 74 Ohio St.3d 49, 64. Cumulative error exists only

where the errors during trial actually “deprive[d] a defendant of the constitutional right to a fair

trial.” State v. DeMarco (1987), 31 Ohio St.3d 191, paragraph two of the syllabus. “‘[T]here

can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee

such a trial.’” State v. Hill (1996), 75 Ohio St.3d 195, 212, quoting U.S. v. Hasting (1983), 461

U.S. 499, 508-09. Moreover, “errors cannot become prejudicial by sheer weight of numbers.”

Hill, 75 Ohio St.3d at 212. After reviewing the record, we cannot say that his trial was plagued

with numerous errors or that his constitutional right to a fair trial was violated.

       {¶71} Accordingly, Mr. Garfield’s tenth assignment of error is overruled.

                                                 III.

       {¶72} Mr. Garfield’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                26


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                     CARLA MOORE
                                                     FOR THE COURT

WHITMORE, J.
CONCURS


BELFANCE, P. J.
CONCURS, SAYING:

       {¶73} I concur; however, I write separately to briefly comment on Mr. Garfield’s ninth

assignment of error. The trial court noted that “[n]o specialized need in this case has been

demonstrated to warrant a psychological evaluation of the alleged victim apart from general

concerns about credibility that would attend any case involving minors.” As this is an accurate

characterization of Mr. Garfield’s motion, I cannot say that the trial court abused its discretion.

Mr. Garfield’s motion was general and broad, comprehensively expressing principles and

concerns that can arise in alleged childhood sexual abuse cases. However, Mr. Garfield failed to

identify specific facts from the instant case which would evidence a specialized need for a

psychological examination. Thus, I agree that the trial court’s exercise of its discretion was

reasonable in light of the contents of the motion.
                                           27


APPEARANCES:

JENIFER C. BERKI, Attorney at Law, for Appellant.

DENNIS WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
