[Cite as In re K.S., 2014-Ohio-188.]


                                           COURT OF APPEALS
                                        FAIRFIELD COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT

IN THE MATTER OF:                                     JUDGES:
                                                      Hon. William B. Hoffman, P.J.
K.S.                                                  Hon. Sheila G. Farmer, J.
                                                      Hon. Patricia A. Delaney, J.

                                                      Case No. 13-CA-21


                                                      OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Fairfield County Court of
                                                  Common Pleas, Juvenile Division, Case
                                                  No. DL20120317


JUDGMENT:                                          Reversed and Remanded


DATE OF JUDGMENT ENTRY:                            January 13, 2014


APPEARANCES:


For Appellee                                      For Appellant

GREGG MARX                                        SCOTT P. WOOD
Proseucting Attorney                              Dagger, Johnston, Miller,
                                                  Ogilive & Hampson
By: ZOE A. LAMBERSON                              144 East Main St.
Assistant Prosecuting Attorney                    P.O. Box 667
Fairfield County, Ohio                            Lancaster, OH 43130
239 W. Main St., Ste. 101
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-21                                                    2

Hoffman, P.J.


       {¶1}   Appellant K.S. appeals his adjudication as a juvenile delinquent on

February 6, 2013 via Judgment Entry entered by the Fairfield County Court of Common

Pleas, Juvenile Division, adjudicating him delinquent by committing rape. Appellee is

the state of Ohio.

                STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

       {¶2}   The following facts are adduced from a bench trial before the juvenile

court. At the time of these events, Appellant was age 17 and a high-school junior; H.T.,

the alleged victim, was 16 and a high-school sophomore. Both attended the same

school. H.T. testified she saw Appellant around school and “liked” him; the two began

texting each other but had little or no contact at school. The two communicated through

texts and social media.

       {¶3}   The adjudicatory hearing consisted of the testimony of H.T., Officer Daniel

Thomas, and Detective Eric Duemmel of the Lancaster Police Department.

                                    The Testimony of H.T.

       {¶4}   On April 1, 2012, H.T. was with her mother at her mother’s workplace

when Appellant stopped by in his truck, a Ford Ranger pickup. H.T. and Appellant

talked for a while in the parking lot and Appellant said he needed to get gas. The two

drove to a gas station and then stopped in a mall parking lot near a closed store. H.T.

testified no one was around.

       {¶5}   Appellant said he was bored and asked H.T. what they should do while

they were sitting in the truck. He “scooted” closer and the two kissed several times.

Appellant placed his hand near H.T.’s crotch area and she said she was on her period
Fairfield County, Case No. 13-CA-21                                                      3


even though she wasn’t. He said it was “O.K.” Appellant then took her hand and put it

on his penis; she pulled away; he did it again and she left it there.

       {¶6}     Appellant was wearing pajama bottoms.            H.T. denied unbuttoning

Appellant’s pants. Appellant took “it” out of his pants, grabbed her neck, pushed her

face near his penis, and “it struck [her] in the forehead.” H.T. stated she knew what

Appellant wanted, and she did proceed to engage in oral sex, which did not go on for

very long. She said he then pushed her by her shoulders to lie down. Appellant got out

of the truck. H.T. sat up but Appellant told her to lie back down. Her head now lay over

the seat; Appellant stood in front of her, inside the open truck door, and told her to put

her mouth on his penis. He “finished” in her mouth, she spit in the parking lot, and he

got back into the truck.

       {¶7}     H.T. stated she did not want to have oral sex with Appellant but felt she

had “no choice.” She said if he hadn’t put his hand on the back of her head, she would

not have performed oral sex. She did not try to get out of the truck because she was

afraid he would try to run her over. She stated, “Um, I mean, I didn’t really know what

was going on, so I just kind of went with everything.”

       {¶8}     H.T. said there was no discussion of the oral sex. She did not say “stop”

or “no” when Appellant placed his hand on her head. He did not make any threats. She

found it to be “clear” what he wanted.

       {¶9}     After the incident, Appellant got back into the truck and took H.T. back to

her mother’s office. H.T. denied she asked him how soon he would text her. She

hugged him and he left. She didn’t tell her mother or anyone else what happened for

several days.
Fairfield County, Case No. 13-CA-21                                                    4


       {¶10} H.T. told her friend M.S. about the incident several days later. M.S. told

her Appellant had raped her older sister. H.T. was also aware of another female who

had a problem with Appellant.

       {¶11} H.T.’s father reported the incident to law enforcement on April 7, 2012.

She was upset with her dad for going to the police.

       {¶12} H.T. testified she received a text from Appellant around 3:00 a.m. on the

night of the incident, which upset her because she felt he had “used” her. He told her

never to talk to him again, to delete his phone number, and he didn’t like her. H.T. said

this made her upset; she was mad at Appellant and she is still mad at him.

       {¶13} On cross examination, H.T. was asked, you claimed you didn’t have a

choice and yet you never said no; how would Appellant have known you didn’t want to

have oral sex with him? She replied, “Because I said I was on my period.”

                               The Testimony of Officer Thomas

       {¶14} H.T.’s father reported the incident to Officer Daniel Thomas of the

Lancaster Police Department on April 7, 2012 as a sexual assault. Thomas did not

speak with H.T.; his role was limited to taking a report, forwarding it to the detective

bureau, and placing the sweatshirt H.T. had been wearing into evidence.

                                The Testimony of Det. Duemmel

       {¶15} Detective Eric Duemmel of the Lancaster Police Department conducts the

majority of the department’s child sexual assault investigations.     He testified he is

trained in interview and interrogation techniques, including “kinesic interviewing

techniques,” which involve reading a suspect’s body language and eye movements to

look for indicators of deception.
Fairfield County, Case No. 13-CA-21                                                   5


       {¶16} Duemmel testified he did not personally interview H.T.; instead, he

arranged for her to be interviewed by the Child Advocacy Center (“CAC”) and watched

her interview on camera in real time from several rooms away.         Regarding H.T.’s

interview, Appellee asked, “Based on your kinesic training, did you see any signs of

deception?” Appellant objected and the trial court overruled the objection. Duemmel

stated he saw no signs of deception during H.T.’s interview but he did not interview her

personally, which he stated is “standard practice” once a victim has been interviewed by

the children’s services agency.

       {¶17} Duemmel also conducted a recorded interview with Appellant. The tape of

this interview was played during Duemmel’s testimony and is therefore preserved in the

record.

                           Appellant’s Recorded Statement to Police

       {¶18} On April 1, 2012, Appellant had called off work and was home sick,

sleeping late. Thus, he was wearing pajama pants when he stopped at H.T.’s mom’s

office to see H.T. She came out to talk to him in the parking lot and when he said he

needed to get gas, she said she would come along. The pair got gas and then stopped

in a parking lot at the mall.

       {¶19} Duemmel asked how the conversation proceeded from small talk to sex.

Appellant said this was the first time the two had ever met outside of school. They had

talked about sex in their text messages, discussing “hooking up” and their respective

sexual histories in previous relationships.

       {¶20} The pair was discussing “going all the way” and at what point they had

done so in previous relationships.     They started kissing.   Appellant stated he was
Fairfield County, Case No. 13-CA-21                                                       6


wearing pajama pants with one button; he admitted he placed H.T’s hand on his penis.

He said he unbuttoned his pants and H.T. started giving him a “hand job” for several

minutes. When it became apparent it “wasn’t going anywhere,” he asked her if she

wanted to give him a “blow job.” Despite her initial reluctance, she eventually agreed.

       {¶21} Appellant stated the oral sex began while he was sitting in the driver’s

seat; he put up the center console and H.T. laid across the seat with her head near the

steering wheel.    Duemmel asked Appellant where his hands were, and Appellant

answered on the window and holding back the center console. Appellant stated they

changed position because he “didn’t want to get ‘it’ on [himself], ” so he exited the truck

and came around to the passenger side. He stood outside the truck with the door open.

H.T. sat up and laid back down facing the other way, with her head toward him, and

resumed oral sex. Appellant stated she was on her stomach with her head out the

passenger-side door. Appellant stated he “finished,” H.T. wiped her mouth off, and sat

up. He then got back in the driver’s side of the truck.

       {¶22} Duemmel asked Appellant several times during the interview whether he

ever placed his hand or hands on the back of H.T.’s head and Appellant said no.

Appellant said H.T. never said “no” or indicated she was unwilling to engage in oral sex.

He denied pressuring her to have intercourse.             They had specifically discussed

“boundaries” and talked about the fact they had both “gone all the way” too soon with

other people and it hadn’t worked out.

       {¶23} Duemmel asked Appellant why H.T. would claim Appellant forced her and

he responded she was mad because he stopped texting her several days later.
Fairfield County, Case No. 13-CA-21                                                     7


       {¶24} H.T. told Appellant she needed to get back, and they returned to her

mom’s office. He said she “made him” get out of the truck and give her a hug, and told

him to text her when he got home. He did text her upon arriving home and she said

“great.”

       {¶25} Appellant said the pair texted on and off for a few more days, before he

became aware she was “spreading their business” around school, after which Appellant

stopped speaking to H.T.

       {¶26} Appellant described his truck as a 2002 Ford Ranger pickup truck with a

bench seat and a center console.

       {¶27} Thereupon the tape of the interview of Appellant concluded.

                      Appellant is Charged with Delinquency by Rape

       {¶28} Appellant was charged by juvenile complaint with one count of

delinquency by means of rape pursuant to R.C. 2907.02(A)(2) and R.C. 2152.02(F), a

felony of the first degree. Appellant denied the charge and the case proceeded to

bench trial on February 1 and February 6, 2013 before the judge of the Fairfield County

Court of Common Pleas, Juvenile Division.

       {¶29} At the conclusion of the trial, the court made the following finding on the

record:

       {¶30} “All right. Well, I’m ready to give the Court’s decision. Um, the interesting

part about this case and the evidence in my opinion is that, you know, basically ninety

percent of both sides, the facts were the same. Uh, the, it really boiled down to whether

or not there was force and threat of force, uh, on the part of [Appellant] and the Court

finds that, uh, the testimony of [H.T.] was believable and the statement by [Appellant]
Fairfield County, Case No. 13-CA-21                                                   8


was not and therefore, the Court does make a finding of delinquency based on the

count of rape, a first degree felony as it would apply to an adult and, um, we will

proceed from there.”

      {¶31} The trial court thereupon found Appellant to be a Tier III sex offender, and

imposed an indefinite term of commitment until age 21, suspended upon a number of

conditions including, among others, his successful completion of intensive probation

and a sex offender evaluation.

      {¶32} Appellant now appeals the trial court’s Entry of February 6, 2013

adjudicating him delinquent by means of rape.

      {¶33} Appellant raises two assignments of error:

      {¶34} “I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL

COURT’S FINDING OF DELINQUENCY BASED ON RAPE.”

      {¶35} “II. THE TRIAL COURT MADE AN EVIDENTIARY RULING DURING

TRIAL THAT WAS UNDULY PREJUDICIAL TO APPELLANT.”

                                                I.

      {¶36} In the first assignment of error, Appellant asserts his adjudication on one

count of rape, in violation of R.C. 2907.02(A)(2) is not supported by the sufficiency of

the evidence. We disagree.

      {¶37} When reviewing the sufficiency of the evidence in a juvenile case, we

apply the same standard of review applicable to criminal convictions. In re Watson, 47

Ohio St.3d 86, 91, 548 N.E.2d 210 (1989). The standard of review for a challenge to

the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court
Fairfield County, Case No. 13-CA-21                                                        9


held, “An appellate court’s function when reviewing the sufficiency of the evidence to

support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

       {¶38} In reviewing the legal sufficiency of the evidence to support a verdict by

the trier of fact, it is the mind of the trier of fact, rather than the reviewing court, that

must be convinced. State v. Thomas, 70 Ohio St.2d 79, 434 N.E.2d 1356 (1982). In

applying this standard of review, the question of credibility of conflicting testimony and

the weight to be accorded certain evidence are matters left primarily to the trier of fact.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

       {¶39} A reviewing court should not disturb the decision below unless it finds that

reasonable minds could not reach the conclusion reached by the trier of fact. Jenks,

supra, 61 Ohio St.3d at 273.

       {¶40} Appellant was found delinquent by rape pursuant to R.C. 2907.02(A)(2),

which reads, “No person shall engage in sexual conduct with another when the offender

purposely compels the other person to submit by force or threat of force. “

       {¶41} “Force” means any violence, compulsion, or constraint physically exerted

by any means upon or against a person or thing. R.C. 2901.01(A)(1). Force or the

threat of force “can be inferred from the circumstances surrounding sexual conduct.”

State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661(1992), at paragraph one of the

syllabus. In order to make a finding of force under R.C. 2907.02, “some amount of force
Fairfield County, Case No. 13-CA-21                                                    10

must be proven beyond that force inherent in the crime itself.” State v. Dye, 82 Ohio

St.3d 323, 327, 695 N.E.2d 763 (1998). The Ohio Supreme Court has explained the

force necessary to commit rape depends upon the respective age, size, and strength of

the parties and their relation to each other. State v. Eskridge, 38 Ohio St.3d 56, 58, 526

N.E.2d 304 (1988). “Thus, the context of the rape will also affect our inferences

regarding the additional element of force or threats of force.” State v. Kaufman, 187

Ohio App.3d 50, 71, 2010-Ohio-1536, 931 N.E.2d 143 (7th Dist.)

       {¶42} Upon review of the evidence presented at the adjudicatory hearing, we

find, when viewed in a light most favorable to the prosecution, a rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable

doubt. The testimony presented at the hearing by H.T. alleges Appellant took his penis

out of his pants, placed his hand on the back of H.T.’s head and pushed her head near

his penis. H.T. testified she did not want to engage in oral sex with Appellant, but felt

she had no choice. H.T. testified Appellant used “enough force” to push her head down

towards his penis. She further testified she felt she had no choice but to engage in the

act of oral sex.

       {¶43} Appellant’s first assigned error is overruled.

                                                II.

       {¶44} In the second assignment of error, Appellant contends the trial court

admitted prejudicial evidence in allowing Detective Duemmel to testify as to the “kinesic

interview technique,” and his resulting opinions as to the credibility and truthfulness of

H.T. and Appellant. We agree.
Fairfield County, Case No. 13-CA-21                                                      11


       {¶45} At the adjudication hearing on February 1, 2013, Detective Duemmel

testified as to his training in “kinesic interviewing,” and his perception as to H.T.’s CAC

interview, which he watched in real time via video:

       {¶46} “Q. Okay. Um, and you said something about, was it kinesic?

       {¶47} “A. Kinesic interviewing, yes.

       {¶48} “Q. Can you explain what kind of training that is?

       {¶49} “A. Yes, um, kinesic interviewing deals specifically with reading body

language, um, eye movements, um, the way the body moves when people are, are

speaking and signs that they give, uh, when, that indicate that they might be deceptive.

       {¶50} “Q. And how is that useful in your work?

       {¶51} “A. Um, when we’re interviewing suspects, it’s a good way just to get an

overall gist of their story and how it flows and what signs they’re giving off while they’re

telling that story.

       {¶52} “Q. Do you use, um, do you use those techniques in all the interviews you

conduct?

       {¶53} “A. Yes, I do.

       {¶54} “* * *

       {¶55} “Q. And did you do that for H.T. in this case?

       {¶56} “A. Yes, I did.

       {¶57} “Q. (Inaudible) are you familiar with a person by the name of H.T.?

       {¶58} “A. Yes, ma’am, I am.

       {¶59} “Q. And were you involved with an investigation of a sexual assault

alleged by H.T.?
Fairfield County, Case No. 13-CA-21                                                    12


        {¶60} “A. Yes, I am.

        {¶61} “Q. Did you, uh, do you observe the CAC videos when you are involved

with that case?

        {¶62} “A. Yep. Uh, yes, I do.

        {¶63} “Q. Okay. Is that like in real time, are you watching them, how do you

observe them?

        {¶64} “A. Whenever possible, I watch them in real time.        It’s, uh, there’s a

separate room, it’s two rooms away from the interview room, and there’s a video feed

that allows me to watch it on a TV. It’s mounted on the wall.

        {¶65} “Q. Okay, Um, now, when you watch those, um, do you (pause) you talked

about using that kinesic training in, um, like when investigating, when speaking with

suspects. Do you ever apply that training to watching witness interviews and things like

that?

        {¶66} “A. Yes, I do.

        {¶67} “Q. Okay. And, um, did you watch H.T.’s CAC interview?

        {¶68} “A. Yes, I did.

        {¶69} “Q. Did you watch it in real time?

        {¶70} “A. Yes, I did.

        {¶71} “Q. Okay. And did you see any, based on your experience with kinesic

training, did you see any indications of deception during her interview?1

        {¶72} “* * *

1
   Appellant’s counsel objected to the testimony of Detective Duemmel regarding his
kinesic interviewing techniques and application thereof based upon lack of scientific
foundation and the witness’ ability to determine whether an individual was truthful. The
trial court overruled the objection.
Fairfield County, Case No. 13-CA-21                                                      13


       {¶73} “Q. Let me back track actually. What are some signs of deception that

you commonly see or you’re trained to look for?

       {¶74} “A. Um, some of the signs are when someone is talking, they’ll self-groom.

Um, so they’ll play with their hair; they’ll try to wipe stuff off their clothes. Another is

they obviously, they won’t make eye contact. Um, through the kinesic interviewing,

we’re also taught to, um, when applicable which really wouldn’t have been in a viewed

interview where you’re watching a TV, but you can see eye direction. Um, the way

people answer questions on a baseline and then you use that baseline as you ask

different questions, you can watch their eye movement and you can see how their eyes

move and that tells you, can indicate to you which part of the brain, um, that they’re

using to formulate their answer.      Um, some things like covering their mouth when

they’re talking. Um, I mean, those are just a few of the, the most common, um, signs

that we look for.

       {¶75} “Q. Okay. Um, and then going back now to the original question,

when watching H.T.’s CAC interview, did you observe any of these indicators of

deception?

       {¶76} “A. No. I did not.”

       {¶77} Tr. at 106; 108-109;110-111. (Emphasis added.)

       {¶78} Detective Duemmel then testified as to his interview with Appellant, and

his application of his kinesic interview training during the interview:

       {¶79} “Q. Um, (pause) after H.T. was interviewed at the CAC, um, what steps

did you take after that?

       {¶80} “A. I ended up making contact with K.S. to speak with him.
Fairfield County, Case No. 13-CA-21                                                   14


       {¶81} “Q. And is that K.S.?

       {¶82} “A. Yes, it is.

       {¶83} “Q. Okay. And why did you make contact with K.S.?

       {¶84} “A. Because she indicated, um, that he was the one that was involved in

this case.

       {¶85} “* * *

       {¶86} “Q. Um, okay, well I want to go back, obviously, to a little bit about this.

(Inaudible)

       {¶87} “A. Kinesic interviewing?

       {¶88} “Q. Kinesic, right. Um, and is this more of the contact that you were

referring to when you said you utilized that investigative tool?

       {¶89} “A. Yes.

       {¶90} “Q. Okay. And did you use that in this interview?

       {¶91} “A. Um, I didn’t use that exact technique, to do the eyes, but I did do the

body language reading.

       {¶92} “Q. Okay. And, um, can you go through what you, what you visualized as

far as that goes?

       {¶93} “A. Um, yeah, he didn’t have, I mean, he didn’t do a lot of tells, um, in

using your kinesic interviewing. Um, he stayed pretty open, um, and facing me, so like I

told him in the video, you know, I thought, um, most of this stuff was truthful. Um, the

big tell that I got from him was, um, the extra long pauses when it came to the point of

exact interest. The way he was able to tell the story very thoroughly up to the point of

what we were specifically talking about and then he’d have an extra long pause where
Fairfield County, Case No. 13-CA-21                                                   15


he would just wait, wait, what seemed like, as you were watching, just seems like an

abnormal amount of time in order to answer the question.

     {¶94}    “Q. Okay. And again, what did you indicate that that’s indicative of?

     {¶95}    “A. Uh, deception.

     {¶96}    “* * *

     {¶97}    “Q. Um, okay, now K.S. said, um, he said that he asked her to give her, to

give him a blow job and that she finally agreed, is that right?

     {¶98}    “A. I believe that’s the gist of what he said, yes.

     {¶99}    “Q. Okay. Um, and then when he said that, he said that’s a detail that

would make it sound like I forced her, when he was talking about putting her hand on

his head? Or his hand on her head? Um, do you recall if that was a time when you

noticed an indicator of deception?

     {¶100} “A. Um, I did not.

     {¶101} “Q. Okay. Um, (pause) um, and he also indicated that he texted for three

to four days after the incident, um, do you know that if that’s true or not? Did you ever

follow up on that?

     {¶102} “A. I don’t think I followed up on that.

     {¶103} “Q. Okay. Um…

     {¶104} (Pause)

     {¶105} “Q. But he and, um, he did acknowledge that he placed her hand on his

penis, correct?

     {¶106} “A. Yes.
Fairfield County, Case No. 13-CA-21                                                 16


     {¶107} “Q. Um, is it common for people to allege oral sex as a form of rape

(inaudible)?

     {¶108} “A. Not in my experience.

     {¶109} “Q. Okay.

     {¶110} (Pause)

     {¶111} (Inaudible)

     {¶112} “Q. Okay. Um, just one last thing, I’m just, for a little clarification.

When you said that you noticed the deceptive indicators, um, about the main

points of interest, can you specify what those points are that you’re talking

about?

     {¶113} “A. Yes, it was specifically about how the oral sex started.          You

know, initially when we first asked, um, how it started, there was a really long

pause to give an answer. He couldn’t remember how the oral sex started, um,

which that would be an indication of deception because most people would be

able to recall specifically how something like that started. Um, as we progress,

every time we kind to get to how sex started or where her hands and stuff were,

again, there’s a long pause that would be a deception. Along with this, you pointed

out some of the, um, seems minor, but the inconsistencies in (inaudible) was he getting

off work or was he going to town to get medication because he was sick. Uh, some

other, you know, some other things like that that popped up during the course of

the interview that indicated that if it had been a truthful story, um, those points

would have stayed consistent throughout the whole story from the beginning all

the way up to that last time we talked.
Fairfield County, Case No. 13-CA-21                                                  17


     {¶114} “Q. And did you notice, um, when, um, viewing H.T.’s CAC, did you

notice any inconsistencies in her story?

     {¶115} “A. No, hers seemed very, pretty consistent throughout the whole,

uh, interview.”

     {¶116} Tr. at 112; 229-230; 238-240. (Emphasis added.)

     {¶117} On cross-examination, Detective Duemmel testified:

     {¶118} “Q. Thank you. Now, this technique that you’ve testified about, and I’m

sorry, I didn’t catch it, is it kinesic?

     {¶119} “A. Kinesic interviewing.

     {¶120} “Q. Can you spell that for me?

     {¶121} “A. K-I-N-E-S-I-C.

     {¶122} “Q. I-C?

     {¶123} “A. I-C.

     {¶124} “Q. I-C? Okay.

     {¶125} “A. Kinesic.

     {¶126} “Q. All right. And is there some scientific foundation to this methodology?

     {¶127} “A. I believe there is.

     {¶128} “Q. And do you have that with you?

     {¶129} “A. I do not.

     {¶130} “Q. Okay.         Can you give us the person who conducted this scientific

testing behind it? One person?

     {¶131} “A. I’m sure I could from notes, but I can’t off the top of my head.
Fairfield County, Case No. 13-CA-21                                                     18


     {¶132} “Q. Okay. Um, and before we watched that lengthy, uh, interview, you

said the things that you look for were self-grooming, eye move, eye movement and

cover, covering the mouth while talking, is that correct?

     {¶133} “A. That’s some of them, yes, sir.

     {¶134} “Q. Those were the three things that you mentioned before we watched

the interview.

     {¶135} “A. Yeah.

     {¶136} “Q. And when I was watching that interview, um, did you ever see K.S.

self-grooming when he was talking to you?

     {¶137} “A. No.

     {¶138} “Q. Did you ever see him, uh, with, with, uh, unusual eye contact?

     {¶139} “A. Um he did have some pointes where he would look instead of looking

at me, he would look down when he was talking to me, like he didn’t want to look me

directly in the eye.

     {¶140} “Q. But from where I was watching, he pretty much looked you right in the

face the entire interview, didn’t he?

     {¶141} “A. For the most part, yes, sir.

     {¶142} “Q. Okay. And did he ever cover his mouth while he was talking?

     {¶143} “A. No.

     {¶144} “Q. So the three things that you said you look for, you, you, you didn’t see

those in K.S.’s interview?

     {¶145} “A. I believe when I testified earlier, I said those are some of the items that

we look for that were most common. And no, I did not see those in K.S.’s interview.
Fairfield County, Case No. 13-CA-21                                                   19


         {¶146} “Q. You did not see those. Thank you.

         {¶147} “A. Yes, sir.

         {¶148} “Q. But the one thing that you did mention, the one thing that led you to

believe he was being deceptive were these long pauses before his responses?

         {¶149} “A. That’s correct.

         {¶150} “Q. Is everyone who gives a long pause before a response lying?

         {¶151} “A. No, not always.

         {¶152} “Q. No? Okay. So that’s not a conclusive way to tell if someone is lying,

is it?

         {¶153} “A. Correct.

         {¶154} “Q. So someone could give a long pause just because they’re trying to

remember events that occurred days, weeks or months prior, correct?

         {¶155} “A. Could be true.

         {¶156} “Q. And that’s the only indicator that you picked up on that he was

deceptive?

         {¶157} “A. Along with…

         {¶158} “Q. The long pause?

         {¶159} “A. Along with the inconsistencies, um, in some of the details about how

he got there and how the sex, the oral sex got started.

         {¶160} “Q. Well, when you say inconsistencies, you’re talking about inconsistent

with her statement.

         {¶161} “A. No, with his.

         {¶162} “* * *
Fairfield County, Case No. 13-CA-21                                              20


    {¶163} “Q. You were trying to get him to confess. Correct?

    {¶164} “A. I was trying to get him to tell me the truth about what happened.

    {¶165} “Q. No, no, you were trying to get him to say something, to tell you

something that was consistent with what she told you, correct?

    {¶166} “A. I was trying to get him to tell me the truth about what happened.

    {¶167} “Q. Right.

    {¶168} “A. And if that was consistent with her, then…

    {¶169} “Q. But that was your baseline. If, if, if he said anything that was

inconsistent than what she told you, you told him that’s not right?

    {¶170} “A. Correct.

    {¶171} “Q. Okay. So you used her story as the baseline truth?

    {¶172} “A. Correct.

    {¶173} “Q. You made an assumption that what she was telling was the

truth?

    {¶174} “A. Correct.

    {¶175} “Q. And if he told you anything different, you did not accept that as the

truth? Correct?

    {¶176} “A. I pressed him on it. I think I accepted some of his other, um…

    {¶177} “Q. So this was not a, this was not a neutral interview?

    {¶178} “A. No.

    {¶179} “Q. You wanted him to tell you certain things?

    {¶180} “A. Yes.
Fairfield County, Case No. 13-CA-21                                                    21


     {¶181} “Q. And if you [sic] didn’t tell you certain things, you were going to press

him on it?

     {¶182} “A. Correct.”

     {¶183} Tr. at 244-247; 250-251. (Emphasis added.)

     {¶184} Pursuant to Evid.R. 402 and Evid.R. 702, expert testimony is admissible

whenever it is relevant and can assist the trier of fact. State v. Williams (1983), 4 Ohio

St.3d 53, 58, 4 OBR 144, 148, 446 N.E.2d 444, 447–448. Even relevant evidence,

however, must be excluded if its probative value is outweighed by danger of unfair

prejudice, confusion of issues, and it is misleading the jury. Evid.R. 403. Novel expert

testimony to assist the trier of fact must also be based upon principles that have been

accepted by the scientific community. State v. Koss (1990), 49 Ohio St.3d 213, 551

N.E.2d 970. (Battered woman syndrome has gained substantial acceptance to warrant

admissibility.) If the subject matter of an expert's opinion is not accepted scientific

evidence, an expert opinion is not helpful, for it is based upon an unreliable premise.

State v. McMillan (1990), 69 Ohio App.3d 36.

     {¶185} Upon review of the record, we find the trial court erred in allowing the

testimony of Detective Duemmel as to his kinesic interview training and application

thereof. The “science” of kinesic interviewing was not established by the State to be

based upon principles widely accepted in the scientific community. Furthermore, the

testimony of Detective Duemmel as to H.T.’s credibility and lack of any indicators of

deception as compared to his perception of Appellant as demonstrating indicators of

deception and his opinion as to Appellant being untruthful compared to H.T.’s testimony

was prejudicial. The testimony of Detective Duemmel should have been excluded.
Fairfield County, Case No. 13-CA-21                                                   22


     {¶186} Whereas here, the case involves a victim and a defendant with similar

versions of most underlying events and force versus consent is the disputed issue, we

find the trial court erred in allowing the testimony of the only investigating and

interviewing officer as to a non-scientific method of determining credibility and

truthfulness. In this case, the trier of fact determined Appellant was not believable and

H.T. was believable. We find the improperly admitted testimony prejudicial to Appellant.

     {¶187} Appellant’s second assignment of error is sustained.

     {¶188} Appellant’s adjudication in the Fairfield County Court of Common Pleas,

Juvenile Division, is reversed, and the matter remanded to the trial court for further

proceedings in accordance with the law and this opinion.

By: Hoffman, P.J.

Delaney, J., concurs in part and dissents in part

Farmer, J., dissents
Fairfield County, Case No. 13-CA-21                                                    23

Farmer, J., dissents

       {¶189} I respectfully dissent from the majority's view in Assignment of Error II.

Detective Duemmel specifically testified he did not observe any indication of deception

by H.T. during her interview as opposed to testifying about her truthfulness. T. at 111.

In addition, further on in direct and also on cross-examination, Detective Duemmel

testified he did not observe any indication of deception by appellant during his interview

except at hesitating when describing the oral sex performed on him. T. at 246. In fact,

defense counsel took advantage of Detective Duemmel's experience and used the lack

of indicators to establish appellant's truthfulness during his police interview.

       {¶190} I would find any error to be harmless in that the minimal impact of the

testimony did not unduly prejudice appellant.
Fairfield County, Case No. 13-CA-21                                                         24

Delaney, J., concurs in part and dissents in part

         {¶191} I respectfully dissent from the majority opinion in regards to the disposition

of Appellant’s first assignment of error. Upon review of the record, I am unable to

conclude appellee presented sufficient evidence of force or threat of force as required

pursuant to R.C. 2907.02(A)(2).             I note the following testimony upon direct

examination:2

                * * * *. Um, he did take it out of his pants and grabbed my neck and

                pushed it near his penis and it hit me in the forehead. And I, I

                guess I kind of knew what he wanted me to do at that point. Um, I

                did give him a blow job and um, it didn’t go on for very long. * * * *.



                * * * *. Um, when he was walking back around [the truck], I sat

                back up and when he opened the door, he told me to lay back

                down and I did and, um, my head was laying over the seat and the

                door was open and he was standing like in front of me. And he told

                me to put my mouth on his penis and he finished in my mouth and I

                spit it out on the parking lot ground and then he got back in the

                truck.

         {¶192} Further, the following conversation took place on direct examination:3

                         Q. Now, just to recap, you said you kissed a few times, correct?

                         A. Yes.

                         Q. Did you want to do that?

2
    T. 14.
3
    T. 15-17.
Fairfield County, Case No. 13-CA-21                                                          25


                   A. Um, yeah.

                   Q. And did you, you did give him oral sex?

                   A. Um, hum.

                   Q. Did you want to do that?

                   A. No.

                   Q. Why did you?

                   A. Because I felt like I had no choice.

                   Q. If [appellant] had not put his hand on your head, as you testified

                   before, would you have performed oral sex on him?

                   A. No.

                   (Pause)

                   Q. [], at any point, did you try to get out of the car and leave?

                   A. No.

                   Q. Why not?

                   A. Honestly, if I felt like, or I felt like if I got out of the truck, um, he

                   would run me over.

                   Q. You felt like he would run you over?

                   A. Yes.

                   (Pause)

                   Q. What were, what were you feeling like during this encounter?

                   A. I was scared.

                   Q. Scared? What were you scared of?
Fairfield County, Case No. 13-CA-21                                                26


                      A. Um, I mean, I really didn’t know what was going on, so I just

                      kind of went with everything.

                      Q. Did you perform oral sex because you wanted to?

                      A. No.

         {¶193} Later, upon cross examination:4

                      * * * *.

                      Q. How did, how did his penis, uh, get out?

                      A. He took it out.

                      Q. And you saw he was doing that?

                      A. Yes.

                      Q. Okay. And did you want that to happen?

                      A. No.

                      Q. You didn’t want his penis to come out?

                      A. No.

                      Q. Okay. So what did you say?

                      A. I didn’t say anything.

                      Q. Okay. You didn’t say don’t do that?

                      A. No.

                      Q. You didn’t say stop?

                      A. No.




4
    T. 39-54.
Fairfield County, Case No. 13-CA-21                                              27


                   Q. So although he’s getting his penis out during this make-

                   out session and you don’t want that to happen, you didn’t

                   say stop?

                   A. No.

                   Q. After his penis was out, where was your hand?

                   (Pause)

                   Q. It was on his penis, wasn’t it?

                   A. Yes.

                   Q. Okay. And what was your hand doing on his penis?

                   A. Nothing.

                   Q. It was just holding it?

                   A. Yep.

                   Q. It wasn’t, you know what a hand job is?

                   A. Yes.

                   Q. Were you giving him a hand job?

                   A. No.

                   Q. Are you sure about that?

                   A. Yes.

                   Q. But your hand was on his penis doing nothing?

                   A. Yep.

                   Q. You were not giving him a hand job?

                   A. No.
Fairfield County, Case No. 13-CA-21                                              28


                   Q. And then there was a discussion about, um, a blow job,

                   wasn’t there?

                   A. I don’t recall that.

                   Q. You don’t recall that?

                   A. No.

                   Q. Um, you don’t recall him asking you to give you (sic) a

                   blow job?

                   A. No.

                   Q. Or for you to give him a blow job, I’m sorry?

                   A. No.

                   Q. Now, it’s your testimony that he, he took his hand and,

                   around your neck?

                   A. Yes.

                   Q. And forced you down?

                   A. Yes.

                   Q. Um, how much force was used?

                   A. Enough to push me down.

                   Q. Did he squeeze your neck?

                   A. No.

                   Q. Did he grab, you have long hair, was it under your hair,

                   was it on top of your hair?

                   A. I don’t know.

                   Q. Was your hair down like it is today?
Fairfield County, Case No. 13-CA-21                                                 29


                   A. Yes.

                   Q. So was it, was it on your hair or was it under your hair on

                   your neck?

                   A. I don’t know.

                   Q. Did he pull your hair?

                   A. No.

                   Q. When he reached and grabbed your neck, uh, was it his

                   right hand or his left hand?

                   A. His right hand.

                   Q. His right hand. Uh, he just used one hand?

                   A. Yes.

                   Q. Uh, did you, when he, I, I assume you saw him reaching

                   for your neck, is that correct?

                   A. Yes.

                   Q. And at the time he was reaching for your, you saw him

                   reaching for your neck, your hand was still on his penis?

                   A. Yes.

                   Q. And you had not moved it?

                   A. No.

                   Q. You had the opportunity to move it, but you didn’t?

                   A. Yes.

                   Q. So as you saw him reaching with his hand for the back of

                   your neck, did you say anything to him?
Fairfield County, Case No. 13-CA-21                                                30


                   A. No.

                   Q. You didn’t say stop?

                   A. No.

                   Q. You didn’t say what are you doing?

                   A. No.

                   Q. And then he, he, you said that he takes the back of your

                   neck and he starts to push it towards his lap, towards his

                   penis?

                   A. Yes.

                   Q. Okay. At that point, it became clear to you what, at least

                   what he wanted?

                   A. Yes.

                   Q. And what did you say?

                   (Pause)

                   A. I don’t think I said anything.

                   Q. You didn’t say anything. You didn’t say stop?

                   A. No.

                   Q. You didn’t say I don’t want to?

                   A. No.

                   Q. You didn’t say anything. Uh, did you attempt to, uh,

                   remove your head, uh, your neck from his hand to try to get

                   away from him?

                   A. No.
Fairfield County, Case No. 13-CA-21                                                 31


                   Q. You didn’t try to get away? Not at all?

                   A. No.

                   Q. So as he was moving your head towards his penis, you

                   said that when you got close to his penis, your, his penis hit

                   your forehead?

                   A. Yes.

                   Q. And at that point, did you say anything?

                   A. No.

                   Q.   Now, at this point, your, your face is near his penis,

                   correct?

                   A. Yes.

                   Q. You know what he wants?

                   A. Yes.

                   Q. You haven’t said no, right?

                   A. Yes.

                   Q. You haven’t told him you didn’t want to, right?

                   A. Yes.

                   Q. Did he ever, did he at that point threaten you?

                   A. No.

                   Q. He never threatened you, did he?

                   A. No.

                   Q. So how did your mouth get on his penis?

                   (Pause)
Fairfield County, Case No. 13-CA-21                                               32


                   A. I put it there.

                   Q. You put it there.

                   (Pause)

                   Q. So you, at that point, as you testified, gave him a blow

                   job?

                   A. Yes.

                   Q. Okay. And just so we’re clear, that is, uh, that’s oral

                   sex?

                   A. Yes.

                   * * * *.

                   [H.T. describes appellant exiting the truck after a few

                   minutes of oral sex and coming around to her side.]

                   Q. * * * *. Okay. So he gets, he opens the passenger door

                   and you’re seated in the passenger seat, correct?

                   A. Yes.

                   Q. How did you get to that point?

                   A. He told me to lay back down.

                   Q. He told you to lay back down?

                   A. Yes.

                   Q. So he didn’t, he didn’t push you down, he didn’t pull you

                   down, he didn’t force you down?

                   A. No.

                   Q. He just said lay back down the way you were?
Fairfield County, Case No. 13-CA-21                                        33


                   A. Yes.

                   Q. And you have the option to say no? Correct?

                   A. Yes.

                   Q. You had the option not to do it?

                   A. Yes.

                   Q. But you didn’t?

                   A. Yes.

                   Q.   So you laid back down and if I understand your

                   testimony, you leaned your head , head back that way?

                   A. Yes.

                   Q. He inserted his penis in your mouth?

                   A. Yes.

                   Q. How did he get your mouth open?

                   (Pause)

                   A. He told me to put my mouth on it.

                   Q. Okay. So he didn’t slap you?

                   A. No.

                   Q. He didn’t threaten you?

                   A. No.

                   Q. He said “Put your mouth on it” and you did?

                   A. Yeah.

                   Q. Did you say no?

                   A. No.
Fairfield County, Case No. 13-CA-21                                                        34


                     Q. Did you say, “I don’t want to?”

                     A. No.

                     Q. You didn’t?

                     A. Yeah.

                     Q. He finished in your mouth, is that correct?

                     A. Yes.

                     Q.    And then, um, you said that you, you spit it on the

                     parking lot?

                     A. Yes.

                     Q. And did you tell the officer that? When you, ultimately

                     you spoke to law enforcement, correct?

                     A. My dad did.

                     Q. Okay. You never spoke to law enforcement?

                     A. Not me directly.

                     * * * *.

       {¶194} I do not take the decision lightly in reversing the decision of the trial court.

This matter implicates a first-degree felony with significant consequences for all

involved. I am also mindful that we are not in the best position to judge the credibility of

the witnesses. However, in reviewing the sufficiency of the evidence in the light most

favorable to appellee, I conclude a rational trier of fact would not be convinced of

appellant’s guilt beyond a reasonable doubt. Appellee presented insufficient evidence

of force. Without more, such evidence does not warrant a delinquency adjudication for
Fairfield County, Case No. 13-CA-21                                                       35

rape. In re L.R.F., 8th Dist. Cuyahoga No. 97905, 2012-Ohio-4284, 977 N.E.2d 138, ¶

26.

       {¶195} I have compared the evidence in this case to the evidence in other cases

of rape involving allegations of forced oral sex. I do not find the allegation of appellant’s

hand on the back of H.T.’s neck to be insufficient per se, but from the context of the

entire incident, a reasonable person find the element of force to be lacking. This case is

distinguishable from those in which evidence exists of a hand on the head plus other

indications of force: an inherently coercive relationship between parties of disparate size

and age [In re N.K., 8th Dist. Cuyahoga No. 82332, 2003-Ohio-7059 (10-year-old

offender threatened five-year-old victim that he would tell her friends not to play with her

and pushed her head down to gain compliance)]; a family relationship which established

the victim’s will was overcome by fear [State v. Toth, 9th Dist. Lorain No. 05CA0008632,

2006-Ohio-2173 (victim observed mother in physically abusive relationship with offender

who was also her father)]; overt verbal and physical resistance by the victim plus overt

force applied by the offender [State v. Martinez, 12th Dist. Clinton No. CA2005-08-013,

2006-Ohio-2718 (offender cornered victim, held his head down, and attempted to force

victim to perform oral sex as victim tried to pull away)]; [State v. Wallace, 8th Dist.

Cuyahoga No. 86794, 2006-Ohio-2735 (offender touched victim’s vagina and breasts

and pushed her head down forcibly, forcing his penis into her mouth despite her crying

and resisting)]; [State v. Ball, 4th Dist. Hocking No. 07CA2, 2008-Ohio-337, appeal not

allowed, 118 Ohio St.3d 1463, 2008-Ohio-2823, 888 N.E.2d 1114 (victim protested as

offender attempted to force her head near his penis, stating she didn’t want to do this)].
Fairfield County, Case No. 13-CA-21                                                  36


      {¶196} As another appellate court stated in a case with a similar outcome, “[w]e

are aware that the facts of this case are sensitive, and we do not condone [appellant’s]

behavior. However, we are bound to follow the law objective and apply it justly.” State

v. Theodus, 8th Dist. Cuyahoga No. 97290, 2012-Ohio-2064, ¶ 48. I find appellee failed

to present sufficient evidence to sustain appellant’s conviction for rape. Therefore, I

would sustain Appellant’s first assignment of error.

      {¶197} I further concur with the disposition of Appellant’s second assignment for

the reasons stated by Judge Hoffman.
