[Cite as State v. Carter, 2017-Ohio-8864.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104874




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                               DEMETRIUS H. CARTER
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-603056-A

               BEFORE: Laster Mays, J., Kilbane, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                   December 7, 2017
                               -i-




ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Jeffrey Schnatter
Glen Ramdhan
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Demetrius H. Carter (“Carter”), appeals his guilty

verdict and sentence, and asks this court to reverse his conviction and remand to the trial

court for a new trial.   After a review of the record, we reverse and remand.

       {¶2} Carter was found guilty of one count of rape, a first-degree felony in violation

of R.C. 2907.02(A)(2); three counts of kidnapping, first-degree felonies in violation of

R.C. 2905.01(A)(4); and two counts of gross sexual imposition, fourth-degree felonies in

violation of R.C. 2907.05(A)(1).         He was sentenced to a total of eight years

imprisonment and required to register as a tier three sex offender.

I.     Facts

       {¶3} B.C., the daughter of Carter, accused Carter of kidnapping, rape, and forcing

her to have unwanted sexual conduct with him. B.C. testified that her father, Carter,

began making sexual advances towards her when she was in the seventh grade.            B.C.

recalled one moment when she and Carter were lying next to each other watching movies.

 Carter told B.C. that he was cold and requested that she move closer to him. When

B.C. moved closer to him, she felt Carter’s pelvis poking her. Carter continued to push

his pelvis closer to B.C., and his actions made B.C. feel confused and as if she could not

get up and walk away.

       {¶4} Once Carter moved out of the family home, as a result of divorce from B.C.’s

mother, B.C. would see Carter at his sister’s house. One occasion when B.C. was
visiting Carter at Carter’s sister’s house, B.C. awoke to Carter hugging her around the

waist. Carter also began pushing his pelvis against B.C. and groping her chest. Then

Carter used his hand to rub B.C.’s vagina. B.C. testified that Carter rubbed the inside

and outside of her vagina with his fingers. B.C. felt as if she could not get up and walk

away from Carter.

        {¶5} Another incident took place at Carter’s sister’s new home where B.C. and

Carter were sleeping on the floor.    B.C. awoke to Carter rubbing her breasts.     Carter

then told B.C. that he loved her. The next morning Carter told B.C. that they needed to

stop having sexual contact, but he continued. B.C. did not feel as if she could get away

from Carter while he was touching her.

        {¶6} B.C. also visited Carter at Carter’s father’s home. During a visit, B.C. woke

to Carter holding her around the waist while pushing his pelvis against her. B.C. tried to

move away from him, but Carter pulled her closer.     Carter began groping B.C.’s breast

and then pulled her pants down. Carter got out of the bed, and B.C. heard him open a

plastic wrapper.    Carter then came back to the bed and laid down behind B.C.    B.C. felt

Carter touch her vagina both inside and out, but was unsure of what he was touching her

with.

        {¶7} B.C. sent her mother, S.C., a text message detailing the events of Carter

touching her.      S.C. went to the police, and B.C. was first interviewed by Lauren

Hennessey (“Hennessey”), a social service worker with the Department
of Children and Family Services. During her testimony, the state asked her, “When you

met with [the victim], what types of information is it important for you to learn for you to

make the referrals that you are tasked with making?”           (Tr. 323.)   Hennessey responded

by stating, “So we make referrals typically, you know, when there’s credible, consistent

disclosures, which hers was.             And, you know, she was seeking — the family was

seeking medical — not medical, mental health treatment as well because of what had

happened.”          (Tr. 323.)

          {¶8} B.C.’s case was referred to Julie Loyke (“Loyke”), a certified pediatric nurse

practitioner who performs non-acute sexual abuse examinations for the Cleveland Care

Clinic.         Loyke testified as to her experiences practicing as a Sexual Assault Nurse

Examiner (“SANE”).               Loyke described her conversation with B.C., and the procedures

used to interview and examine B.C.

          {¶9} At the end of the trial, Carter was found guilty and sentenced to eight in

prison.         Carter filed this timely appeal arguing six assignments of error for our review,

however, assignment of error three is dispositive of the case, so we need not address the

other five. App.R. 12.

          I.        The state failed to present sufficient evidence of the offenses
                    charged;

          II.       The appellant’s convictions are against the manifest weight of the
                    evidence;

          III.      The trial court erred in allowing the state’s witness to opine
                    regarding the appellant’s guilt, in violation of the Ohio Rules of
                    Evidence, the right to a fair trial, and the Due Process Clause of the
                    Fourteenth Amendment of the United States Constitution;
       IV.    Appellant was denied due process and a fair and impartial trial as
              guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the
              United States Constitution and Article 1, Section 16 of the Ohio
              Constitution based on prosecutorial misconduct;

       V.     The appellant was denied effective assistance of counsel in violation
              of the Fifth and Fourteenth Amendments of the United States
              Constitution and Article I, Section 10 of the Ohio Constitution; and

       VI.    The trial court erred in allowing the admission of the accuser’s text
              message allegation which was offered for the sole purpose of
              demonstrating a prior consistent message without first showing
              recent fabrication, and which denied the appellant due process and
              the right to a fair trial.

III.   Prejudicial Testimony

       A.     Standard of Review

       {¶10} “It is well established that, pursuant to Evid.R. 104, the introduction of

evidence at trial falls within the sound discretion of the trial court.”          Caruso v.

Leneghan, 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, ¶ 32, quoting State v.

Heinish, 50 Ohio St.3d 231, 553 N.E.2d 1026 (1990).

       Further, Evid.R. 702, which controls the admission of expert testimony
       during the course of trial, provides that “[i]f scientific, technical, or other
       specialized knowledge will assist the trier of fact to understand the evidence
       or to determine a fact in issue, a witness qualified as an expert by
       knowledge, skill, experience, training, or education, may testify thereto in
       the form of an opinion or otherwise.” The determination of whether a
       witness possesses the qualifications necessary to allow expert testimony lies
       within the sound discretion of the trial court. In addition, the qualification
        of an expert witness will not be reversed unless there is a clear showing of
       an abuse of discretion on the part of the trial court.

Id. at ¶ 34 quoting State v. Maupin, 42 Ohio St.2d 473, 330 N.E.2d 708 (1975); State v.
Minor, 47 Ohio App.3d 22, 546 N.E.2d 1343 (10th Dist.1988).
       {¶11} In addition,

       [T]he decision whether to admit or to exclude evidence rests within the
       sound discretion of the trial court. State v. Brown, 8th Dist. Cuyahoga No.
       99024, 2013-Ohio-3134, ¶ 50, citing State v. Jacks, 63 Ohio App.3d 200,
       207, 578 N.E.2d 512 (8th Dist.1989). Therefore, an appellate court that
       reviews the trial court’s decision with respect to the admission or exclusion
       of evidence must limit its review to a determination of whether the trial
       court committed an abuse of discretion. Id., citing State v. Finnerty, 45
       Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion
       requires a finding that the trial court’s decision was unreasonable, arbitrary,
       or unconscionable. State v. Minifee, 8th Dist. Cuyahoga No. 99202,
       2013-Ohio-3146, ¶ 23, citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
       219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).

State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, ¶ 16.

       B.     Law and Analysis

       {¶12} Carter argues that the trial court erred in allowing the state’s witnesses to

opine regarding the appellant’s guilt, in violation of the Ohio rules of evidence, violation

of the right to a fair trial, and in violation of the due process clause of the Fourteenth

Amendment of the United States Constitution.          Specifically, Carter argues that the

testimony of Hennessey and Loyke regarding B.C.’s accusations being credible and

consistent disclosures amounted to prejudicial and impermissible testimony.              “The

admission or exclusion of evidence rests within the sound discretion of the trial court.”

Caruso v. Leneghan, 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, ¶ 33, quoting

State v. Jacks, 63 Ohio App.3d 200, 207, 578 N.E.2d 512 (1989).
        Further, Evid.R. 702, which controls the admission of expert testimony
        during the course of trial, provides that “[i]f scientific, technical, or other
        specialized knowledge will assist the trier of fact to understand the evidence
        or to determine a fact in issue, a witness qualified as an expert by
        knowledge, skill, experience, training, or education, may testify thereto in
        the form of an opinion or otherwise.” The determination of whether a
        witness possesses the qualifications necessary to allow expert testimony lies
        within the sound discretion of the trial court. In addition, the qualification
         of an expert witness will not be reversed unless there is a clear showing of
        an abuse of discretion on the part of the trial court. State v. Maupin, 42
        Ohio St.2d 473, 330 N.E.2d 708 (1975); State v. Minor, 47 Ohio App.3d 22,
        546 N.E.2d 1343 (10th Dist.1988).

Id. at ¶ 34.

        {¶13} Hennessey was asked by the state, “what types of information is it important

for you to learn for you to make the referrals that you are tasked with making?”           (Tr.

323.)   Hennessey responded,

        [S]o we make referrals typically, you know, when there’s credible,
        consistent disclosures, which hers was. And, you know, she was seeking —
        the family was seeking medical — not medical, mental health treatment as
        well because of what had happened.

Carter argues that the testimony bolsters the allegations. We disagree.

        {¶14} It is clear that the state did not ask Hennessey what her opinion was

regarding the veracity of B.C.     Rather, the record shows that the state asked Hennessey,

as a professional, what is important for her to learn from an individual to make necessary

referrals?

        An expert may not testify as to the expert’s opinion of the veracity of the
        statements of a child declarant. State v. Boston, 46 Ohio St.3d 108, 545
        N.E.2d 1220 (1989). However, an expert may provide testimony that
        supports “the truth of the facts testified to by the child, or which assists the
        fact finder in assessing the child’s veracity.” State v. Stowers, 81 Ohio
        St.3d 260, 262-263, 690 N.E.2d 881 (1998).
State v. Ervin, 8th Dist. Cuyahoga No. 80473, 2002-Ohio-4093, ¶ 34. We find that

Hennessey’s testimony was admissible under Evid.R. 703.

       {¶15} Additionally, Hennessey testified that her interview began with her getting

to know B.C. and information about B.C.’s family. After Hennessey learned of the

disclosures, it allowed her to make referrals.

       State:        During the course of the interview, did you learn the
                           information that you required to determine what
                           referrals you needed to make for B.C.?

       Hennessey: Yes.      Based on the interview, she was referred to the
                            Cleveland Care Clinic.

       State:        What is the Cleveland Care Clinic?

       Hennessey: It’s where she can go and get a medical assessment, like a
                         physical exam, and then also another interview with
                         the professional. They’re trained as well.

       State:        Is the Care Clinic focused on a particular area of medical?

       Hennessey: They do.       They focus on sexual assault, sexual abuse cases.

       State:        That referral was based on your interview of B.C.?

       Hennessey: Yes, based on the information she shared with me.

       State:        Where is the Care Clinic run through?

       Hennessey: The Cleveland Clinic, the main campus, substance abuse.

       State:               Did you make any other referrals?

       Hennessey: The family was referred to Cleveland Rape Crisis as well.

(Tr. 324-325.)
       {¶16} Permissible testimony for purposes of medical diagnosis or treatment fall

under Evid.R. 803(4).     It states,

       [S]tatements made for purposes of medical diagnosis or treatment and
       describing medical history, or past or present symptoms, pain, or sensations,
       or the inception or general character of the cause or external source thereof
       insofar as reasonably pertinent to diagnosis or treatment.

Pursuant to Ohio case law and Evid.R. 803(4), statements made by a social worker for the

purposes of medical diagnosis or treatment are admissible. State v. Boston, 46 Ohio

St.3d 108, 545 N.E.2d 1220(1989), citing State v. Krzywkowski, 8th Dist. Cuyahoga No.

80392, 2002-Ohio-4438, ¶ 120. Hennessey’s role was important in determining what type

of subsequent treatment was necessary for B.C. We find that Hennessey’s role was

pertinent to medical treatment or diagnosis, and thus her testimony falls clearly within the

exception to the hearsay rule under Evid.R. 803(4). Id. at ¶ 123.

       {¶17} The state asked Loyke,

       [T]hrough that specialized training and through that years of experience in
       all of those patients, have you learned things about sexual assault, child
       sexual assault victims in particular that you would not have suspected prior
       to your experience and training?

(Tr. 354.)   Loyke responded,

       I would have to say yes, that I have been part of the process of every
       individual child that presents with sexual assault has a story to tell and has a
       different story to tell. There is no way that we could systemically categorize
       every situation that we would see. It is important that they tell their story
       and it’s important that we believe them.

Id.
         {¶18} Carter argues that Loyke’s statement about the importance of believing a

child who tells their sexual assault story was prejudicial and significantly impacted his

trial.   We agree.   The SANE nurse was asked whether she made any recommendations

in B.C.’s case. In response, she stated:

         Yes. I recommended that she continue with counseling. I reassured her
         that the exam was normal, but that even though it was normal, we still
         believe her disclosure and that we will be following through with whatever
         is required on our end to help her along.

(Tr. 367-368.)

         {¶19} Like the social worker, Loyke testified that she recommended counseling.

However, unlike Hennessey, Loyke testified that she believed B.C.’s disclosures.

         This court has held that it is reversible error to admit testimony from a
         purported expert or lay witness attesting to the believability of another’s
         statements. State v. Boston, 46 Ohio St.3d 108, 128, 545 N.E.2d 1220
         (1989). “[I]n our system of justice it is the fact finder, not the so-called
         expert or lay witnesses, who bears the burden of assessing the credibility
         and veracity of witnesses.” State v. Pizzillo, 7th Dist. Carroll No. 746,
         2002-Ohio-446, citing Boston at 129.

State v. Wilson, 8th Dist. Cuyahoga No. 104333, 2017-Ohio-2980, ¶ 48.

         {¶20}   Pursuant to Crim.R. 52(A), “[a]ny error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.”        Middleburg Hts. v.

Lasker, 2016-Ohio-5522, 76 N.E.3d 372, ¶ 16 (8th Dist.). In order to find an error was

harmless, a reviewing court must be able to declare a belief that the error was harmless

beyond a reasonable doubt. State v. Lytle, 48 Ohio St.2d 391, 403, 358 N.E.2d 623

(1976).     A reviewing court may overlook an error where the admissible evidence

comprises “overwhelming” proof of a defendant’s guilt.      State v. Williams, 6 Ohio St.3d
281, 290, 452 N.E.2d 1323 (1983).        “Where there is no reasonable possibility that

unlawful testimony contributed to a conviction, the error is harmless and therefore will

not be grounds for reversal.” State v. Brown, 65 Ohio St.3d 483, 485, 605 N.E.2d 46

(1992).

      {¶21} Ohio courts have held that

      [a] Boston violation may be harmless error beyond a reasonable doubt when
      considering certain factors. Those factors include “(1) if the victim testifies
      and is subject to cross-examination, (2) the state introduces substantial
      medical evidence of sexual abuse, and (3) the expert or lay person's opinion
      testimony is cumulative to other evidence.” State v. Palmer, 9th Dist.
      Medina No. 2323-M, 1995 Ohio App. LEXIS 514 (Feb. 8, 1995); State v.
      Lewis, 9th Dist. Summit No. 14632, 1991 Ohio App. LEXIS 3880 (Aug. 14,
      1991); State v. Djuric, 8th Dist. Cuyahoga No. 87745, 2007-Ohio-413, ¶ 44.

      However, a finding of harmless error is not justified if the case is a
      “credibility contest” between the victim and the defendant. State v. Burrell,
      89 Ohio App.3d 737, 746, 627 N.E.2d 605 (9th Dist.1993). Thus, in order
      to find a Boston violation harmless, some independent evidence must exist
      when it is a credibility contest between the defendant and the victim. State
      v. West, 8th Dist. Cuyahoga No. 90198, 2008-Ohio-5249.

State v. Eisermann, 8th Dist. Cuyahoga No. 100967, 2015-Ohio-591, ¶ 63-64.

      {¶22}     After careful consideration, we find that the trial court’s error in

permitting Loyke’s testimony that rendered an opinion on the veracity of B.C.’s

disclosures were not harmless error.   Loyke’s impermissible testimony “acted as a litmus

test of the key issue in the case and infringed upon the role of the fact finder, who is

charged with making determinations of veracity and credibility.” Boston, 46 Ohio St.3d

108, at 129, 545 N.E.2d 1220, quoting State v. Eastham, 39 Ohio St.3d 307, 530 N.E.2d

409 (1988).    In the absence of substantial medical evidence of sexual abuse or
corroborating evidence, this case hinged on issues of credibility. While B.C. testified

and was subject to cross-examination, Loyke’s testimony was significant, it bolstered the

credibility of B.C.’s testimony, and was not merely cumulative to other evidence.

Moreover, the SANE nurse’s testimony that she “believed” B.C.’s disclosure is

particularly troublesome because it was made in direct reference to the fact that B.C.’s

“head-to-toe” medical examination results were “normal” and did not reveal any physical

injuries or clear signs of sexual abuse. Therefore, the admission of Loyke’s testimony

concerning the credibility of B.C.’s disclosure was not harmless beyond a reasonable

doubt.    For this reason, we reverse Carter’s conviction and remand for a new trial.

         {¶23} The remaining assignments of error are moot pursuant to App.R. 12(A), and

therefore a determination on those issues are not required.

         {¶24} Judgment is reversed and remanded.

         It is ordered that the appellant recover from appellee costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
