[Cite as State v. Gutierrez, 2011-Ohio-3126.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 5-10-14

        v.

RONNIE GUTIERREZ,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2008 CR 310

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: June 27, 2011




APPEARANCES:

        Keith O’Korn for Appellant

        Mark C. Miller and Drew A. Wortman for Appellee
Case No.5-10-14



WILLAMOWSKI, J.

        {¶1} Defendant-Appellant, Ronnie Gutierrez (“Gutierrez”), appeals the

judgment of the Hancock County Court of Common Pleas finding him guilty of

six counts of rape of his young step-daughter and sentencing him to life in prison

without parole. Gutierrez contends that the trial court made numerous errors

violating his constitutional and due process rights; that he was denied his right to

an impartial jury; that the convictions were not supported by sufficient evidence

and were against the manifest weight of the evidence; that he was denied effective

assistance of counsel; and that the sentencing entry failed to impose the correct

term of postrelease control. For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

        {¶2} Gutierrez and Kelley Snyder (f.k.a. Kelley Gutierrez; hereinafter “Ms.

Snyder” or “Mother”) were married in December of 2005. Ms. Snyder’s daughter,

A.P. was just turning five years old at the time. A.P. seldom saw her biological

father,1 and she called Gutierrez “daddy.”

        {¶3} During the 2006-2007 school year when A.P. was in kindergarten,

A.P. began to exhibit behavioral problems and was not getting along with other

children in school. Beginning in May of 2007, Ms. Snyder took A.P. to the


1
  Ms. Snyder was never married to A.P.’s biological father. Her biological father was not a part of A.P.’s
life when Ms. Snyder was married to Gutierrez, and A.P. only had sporadic visitation with him at this time.


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Family Resource Center (“FRC”) for therapy sessions and A.P. began to meet

regularly with Ms. Connie Sue Crego-Stahl (“Therapist” or “Ms. Crego-Stahl”) at

the FRC.

        {¶4} One weekend in July of 2008, A.P., her Mother, and Gutierrez went

on a family trip to The Wilds, a wild animal preserve in southeastern Ohio. Upon

returning from the trip on the evening of July 13th, Gutierrez put A.P. to bed as he

often did. The next morning while Ms. Snyder was getting ready, A.P. came into

the bathroom and disclosed to her Mother that, “when daddy lays me down for bed

* * * sometimes he rubs my stomach for a little while then he makes me suck his

P.P.”   Ms. Snyder was shocked and upset.        After confronting Gutierrez, she

packed up their things and left with A.P. She later divorced Gutierrez.

        {¶5} Ms. Snyder took A.P. to the Therapist for an emergency appointment

that same day. A.P. told Ms. Crego-Stahl what she had told her Mother. The

allegations were also reported to the police and the Hancock County Job and

Family Services, Children’s Protective Services Unit (“CPSU”). Ms. Crego-Stahl

continued to meet with A.P. regularly to help her deal with the trauma of the

abuse, and A.P. eventually shared that Gutierrez had also put his finger in her

vagina and had anal sex with her.

        {¶6} Brianna Westrick (“Ms. Westrick”), an investigator with the CPSU,

and Detective Matthew Tuttle (“Detective Tuttle”), with the Findlay Police

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Department, investigated the matter and conducted a video-recorded forensic

interview with A.P. on July 24, 2008. During the interview, A.P. was animated

and happy when discussing her mother, her pets, and other activities. However,

she became sullen, quiet, and looked down when she was asked what she liked

about Gutierrez. She answered, “nothing,” and then she disclosed the sexual

abuse and physically demonstrated how Gutierrez would push her head up and

down to force her to perform oral sex. A.P. stated that it had been happening all

the time since she was in kindergarten, and she was now in second grade.

       {¶7} On December 30, 2008, the Hancock County Grand Jury indicted

Gutierrez of six counts of rape pursuant to R.C. 2907.02(A)(1)(b), all felonies of

the first degree. The first three counts alleged that Gutierrez raped his step-

daughter, who was under ten years old, between September 5, 2006 and June 8,

2007, by making her perform fellatio on him (count one), by digitally penetrating

AP’s vagina (count two), and by sodomizing her (count three). Counts four, five

and six alleged the same conduct for each of the respective counts, but “on or

about” the date of July 13, 2008.

       {¶8} There were numerous pre-trial motions and hearings. The defense

challenged A.P.’s competency to testify.     The trial court held an in camera

hearing, interviewed A.P., and found A.P. competent to testify. Gutierrez also

sought records from the FRC, the CPSU, and A.P.’s grand jury testimony. The

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trial court reviewed the records and the grand jury testimony under seal and found

no inconsistencies or anything exculpatory to disclose; it denied Gutierrez’

motions.

         {¶9} The defense also sought to exclude testimony from other witnesses

about statements made to them by A.P. and to exclude the playing of the forensic

video at trial. The trial court found the statements and video were admissible.

         {¶10} In March of 2010, the case proceeded to trial. During the two-day

trial, the jury heard testimony from Ms. Snyder, Detective Tuttle, Ms. Westrick,

Ms. Crego-Stahl, and A.P., who was nine-years old at the time. When A.P.

testified, she was very uncomfortable about saying what had happened out loud, so

she wrote on a piece of paper: “he made me suck on his P.P. and put his P.P. in

my butt and his finger in my P.P.” A.P.’s written testimony was placed on the

ELMO for the entire court to see and both parties questioned her about her written

statement.

         {¶11} The jury returned guilty verdicts on all six counts of rape. On March

18, 2010, Gutierrez was sentenced to an aggregate prison term of life without

parole.2 Gutierrez now appeals, raising the following eight assignments of error.




2
  The trial court sentenced Gutierrez to life in prison for the first three counts in the indictment, which was
the applicable punishment for those offenses according to the statutes in effect during that time period. The
sentence for the remaining three counts was life in prison with no possibility of parole.

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                          First Assignment of Error

      The court violated Evid.R. 601 and denied Appellant his rights
      to due process of law and a fair trial guaranteed by the 5th and
      14th Amendments to the U.S. Constitution, and Article I, Section
      10 of the Ohio Constitution when the court found the child
      witness competent to testify.

                        Second Assignment of Error

      The court violated the Brady rule and the Due Process and
      Confrontation Clauses of the U.S. and Ohio Constitutions by
      failing to order the State to disclose Brady material in the sealed
      records pertaining to the alleged victim’s sex abuse claims and
      her grand jury testimony.

                         Third Assignment of Error

      The court violated Appellant’s right to present a defense and
      due process by not providing his consulting expert on tainted
      child-statements in sex offense cases with the sealed records and
      grand jury testimony relating to the questioning of the alleged
      victim.

                        Fourth Assignment of Error

      The court violated Ohio’s hearsay rules and state and federal
      due process and confrontation principles when it admitted
      statements made by the alleged victim to many third parties.

                         Fifth Assignment of Error

      Appellant was prejudiced by the court’s failure to excuse one of
      the jurors for cause, and the composition of the jury violated
      Appellant’s right to an impartial jury under the 6th and 14th
      Amendments to the U.S. constitution.




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                            Sixth Assignment of Error

       Appellant’s convictions were not supported by sufficient
       evidence in violation of the Due Process Clause of the 14th
       Amendments to the U.S. Constitution, and Article I, Sections 1
       & 16 of the Ohio Constitution and the convictions were also
       against the manifest weight of the evidence.

                          Seventh Assignment of Error

       The sentence is contrary to law.

                           Eighth Assignment of Error

       Trial counsel rendered ineffective assistance of counsel in
       violation of the 6th Amendment to the U.S. Constitution, and
       Article I, Sections 10 and 16 of the Ohio Constitution.

                         First Assignment of Error

       {¶12} In the first assignment of error, Gutierrez maintains that the trial

court erred when it found that A.P. was competent to testify at trial. A.P. was

between six and seven years old when the alleged abuse occurred, eight years old

at the time of the competency hearing, and nine years old at trial. Although the

trial court conducted a competency hearing, Gutierrez claims that A.P. was unable

to satisfactorily answer many of the questions that were asked and that she was

unable to establish her ability to recall events from the relevant time period.

Gutierrez further contends that A.P. showed little ability to receive impressions or

recall or communicate what she observed, particularly in the interval of one-to-

three years prior to the hearing. And finally, Gutierrez asserts that the trial court

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failed to take into consideration A.P.’s “history of fabrication” and the fact that

she was being treated at FRC for “lying.”

       {¶13} Evid.R. 601(A) provides that every person is competent to testify

except children under ten years old “who appear incapable of receiving just

impressions of the facts and transactions respecting which they are examined, or

of relating them truly.” In determining whether a child under ten is competent to

testify, the trial court must take into consideration whether the child is able to (1)

receive accurate impressions of fact or to observe acts about which the child will

testify, (2) recall those impressions or observations, (3) communicate what was

observed, (4) understand truth and falsity, and, (5) appreciate the responsibility to

be truthful. State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483.

Because the trial court has the opportunity to observe the child's appearance,

manner of responding to questions, general demeanor and ability to relate facts

accurately and truthfully, its determination will not be reversed absent an abuse of

discretion. State v. McNeill, 83 Ohio St.3d 438, 442, 1998-Ohio-293, 700 N.E.2d

596.

       {¶14} A competency hearing was held on June 9, 2009, and the trial court

questioned A.P. on various topics, including her age, her family, her residence,

schooling, television shows, weather, how many fingers the judge was holding up,

and the importance of telling the truth. The judge also tried to “trick” A.P. to see

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if she would change her answers and say something false, but she did not. After

she distinguished between when the judge was telling the truth and telling a lie,

the trial court further questioned her as follows:

       Q.   Is it okay to tell a lie?

       A.   No.

       Q.   How do you know that?

       A. Because if you tell a lie people don’t know for – if you lie
       then they don’t know how – when you’re telling the truth or not.
       Because if you always lie they don’t know if you’re telling a
       truth or lie.

       Q.   You understand you could get in trouble if you tell a lie?

       A.   Yes.

       Q.   Especially if you’re in that chair?

       A.   Yes.

(June 9, 2009 Hearing Tr., p. 23.)

       {¶15} After this interview with A.P., the trial court had no problem in

finding A.P. competent to testify at trial, stating on the record:

       [A.P.] knows today’s weather, her age, her birthday. She knows
       where she lives. She knows what grade she was in last year. She
       knows what grade she’s going to be in next year. She can’t
       remember her [last year’s] teacher’s name. She knows the name
       of her family members, dad, stepdad, mom, and siblings. She
       has a favorite T.V. show * * *.



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       I think she understands. I’m convinced she understands the
       concept of telling the truth and telling a lie. * * * She appeared
       very composed here in the courtroom. So those are my findings
       from my observations here in the courtroom. She understands
       to tell the truth. She understands that she can get in trouble if
       she tells a lie.

(Id., 28-29.)

       {¶16} The trial court did a thorough inquiry to determine whether A.P. was

competent to testify. There is no requirement that a child witness must correctly

answer every question that is asked. See State v. McNeill, 83 Ohio St.3d at 443,

700 N.E.2d 596 (upholding a trial court's determination that two children were

competent to testify even though they were unable to answer every question

asked.)

       {¶17} Throughout the trial process and continuing with this appeal,

Gutierrez has attempted to label A.P. as someone who has a serious problem with

lying. The record does not support this allegation. Gutierrez reiterates a very few

instances where A.P. did not tell the truth and tries to extrapolate those incidents

into an assumption that she is a chronic liar and not to be believed.

       {¶18} One situation involved a 2007 investigation resulting from what was

apparently an accidental cigarette burn on AP’s thumb. It appears that there was

some misunderstanding and multiple versions as to what happened. But, the trial

court found that the CPSU records showed that the statements saying A.P. was a


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“habitual liar” came from Gutierrez himself, and not from the agency’s findings.

(June 9, 2009 Hearing Tr., p. 6.) And, contrary to Gutierrez’s assertions that A.P.

“was being treated at the FRC for lying,” the record shows that she was primarily

being treated for acting out and behavioral issues which began during her

kindergarten year, shortly after Gutierrez came into her life.          AP’s Therapist

testified that she did not feel that A.P. had ever lied to her. (Trial Tr., p. 523.)

       {¶19} There was also an incident where A.P. purposely scratched a

neighbor’s classic car with a rock or other sharp object and then denied doing it.

Although she initially lied about this, A.P. came forward a few days later and

confessed after she learned that another boy was going to be in trouble for it.

(Trial Tr., p. 327.) It is not unusual for children to sometimes lie to avoid getting

into trouble.   Instead of this incident demonstrating that A.P. is a “liar,” as

Gutierrez would want us to believe, it would appear that her actions indicated that

she does know the difference between telling the truth and lying, the consequences

that can result from lying, and the importance of coming forward and telling the

truth. The standard for determining a child’s competency to testify does not

require that the child has never told a lie; it only requires that the child understand

the difference between truth and falsity, and appreciate the responsibility to be

truthful. See Frazier, supra.



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       {¶20} The trial court was able to personally observe A.P. and interact with

her. The court's line of questioning elicited responses from A.P. that showed her

ability to understand and tell the truth, accurately receive information, and

communicate observations. We cannot conclude that the trial court abused its

discretion when it found that A.P. was competent to testify. The first assignment

of error is overruled.

                            Second Assignment of Error

       {¶21} Gutierrez asked the trial court to order the disclosure of records

relating to AP’s sexual abuse allegations from the FRC and CPSU, and also AP’s

grand jury testimony. The trial court reviewed the sealed records in camera but

did not order their disclosure because it found that they did not contain any

inconsistencies or exculpatory evidence. Gutierrez claims that the denial of this

information amounted to a denial of due process and infringement of the right to

confrontation.

       {¶22} Pursuant to Crim.R. 16(B)(1)(f), a criminal defendant is entitled to

discovery of any evidence that is “favorable to the defendant and material to either

guilt or punishment.” The granting or overruling of discovery motions in a

criminal case rests within the sound discretion of the trial court. State v. Craft,

149 Ohio App.3d 176, 178, 2002-Ohio-4481, 776 N.E.2d 546, 548, ¶10. Abuse of

discretion connotes more than an error of judgment; it implies that the trial court's

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decision was arbitrary, unreasonable, or unconscionable. State v. Adams (1980),

62 Ohio St.2d 151, 157, 404 N.E.2d 144

       {¶23} In the present case, Gutierrez sought discovery and review of

confidential records kept by the FRC and CPSU, in addition to A.P.’s grand jury

testimony.   However, departments of human services and children's services

boards are required to keep records and reports of alleged child-abuse or neglect

confidential. Johnson v. Johnson (1999), 134 Ohio App.3d 579, 583, 731 N.E.2d

1144, citing R.C. 2151.99. The records of A.P.’s counseling sessions with her

therapist are privileged. And typically, grand jury proceedings are secret and an

accused is not entitled to inspect grand jury transcripts unless the ends of justice

require it and there is a showing by the defense that a particularized need for

disclosure exists which outweighs the need for secrecy. State v. Fry, 125 Ohio St.3d

163, 173, 2010-Ohio-1017, 926 N.E.2d 1239, 1256, ¶66.

       {¶24} The United States Supreme Court has acknowledged that under

certain circumstances in the criminal context, records of the children's services

agency must be made available to the trial court for an in camera inspection.

Johnson, 134 Ohio App.3d at 584. In Pennsylvania v. Ritchie (1987), 480 U.S. 39,

107 S.Ct. 989, 94 L.Ed.2d 40, the United States Supreme Court held that a

criminal defendant's right to a fair trial entitles the defendant to an in camera

review by the trial court of the confidential records in order to determine whether

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the records contain evidence material to the accused's defense. Accordingly, “a

court may conduct an in camera inspection of child-abuse records or reports and

also has the inherent power to order disclosure of such records or reports where (1)

the records or reports are relevant to the pending action, (2) good cause for such a

request has been established by the person seeking disclosure, and (3) where

admission of the records or reports outweighs the confidentiality considerations set

forth in R.C. 5153.17 and R.C. 2151.421(H)(1). Johnson, supra at 585.

       {¶25} The trial court conducted an in camera review of all the records

requested by Gutierrez and was prepared to allow Gutierrez access to any

exculpatory evidence or inconsistencies in the records. However, after the review,

the trial court summarized the contents of the records and reported that they did

not contain any exculpatory evidence or inconsistencies.

       {¶26} Gutierrez now claims that the trial court violated the Brady rule and

the Due Process and Confrontation Clauses of the U.S. and Ohio Constitutions by

failing to order the State to disclose all exculpatory and impeachment evidence.

The Brady doctrine requires the prosecution to disclose all exculpatory material to

a defendant. See Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215. See also Giglio v. U.S. (1972), 405 U.S. 150, 154, 92 S.Ct. 763, 31

L.Ed.2d 104 (requirement to disclose impeachment evidence.)



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       {¶27} The defense claims it wished to examine the records to establish the

source of the alleged “inconsistency” between A.P.’s first disclosures of only

fellatio and her later claims, which led to additional counts in the indictment for

vaginal penetration and sodomy.      Testimony at trial explained that it was not

unusual for a child to make a limited disclosure at first, and then to reveal more as

time goes by and the child gains greater trust. However, the records in this case do

not provide information concerning the details of the disclosure of the additional

types of abuse beyond what was related to Gutierrez in the indictment and the bill

of particulars.

       {¶28} The trial court examined A.P.’s grand jury testimony, which had

been filed under seal. The trial court found, “there was no exculpatory evidence at

all, and there was only one rendition of the facts. There was no variance. * * * It

was all one rendition of the facts as they are claimed to have taken place.” (June

9, 2009, Tr. 4.) A.P. was asked what had happened that made her not want to live

with her stepdad anymore and A.P. wrote on an easel pad about the same three

acts that she disclosed at the trial. The CSPU records, which also had been filed

under seal, likewise did not contain any information concerning the additional

allegations.

       {¶29} The FRC’s records, also filed under seal, consisted of brief

summaries of the 55-57 individual and group counseling sessions that A.P.

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attended over an eighteen-month time period. The reports from prior to A.P.’s

disclosure of the abuse mostly noted the various play, art and other therapeutic

activities that were done to help improve A.P.’s behavioral issues. After the

reported abuse, there were three sessions, one each in July, August, and

September, at which the Therapist provided support and helped A.P. deal with her

feelings.

       {¶30} At the November session, the Therapist wrote that “Client did

disclose more abuse (wrote it as she did not want to say it aloud, see attached).

Writer did process with client, i.e., not her fault, etc. Did start workbook of ‘No

More Hurt’ as client willing to work at this point. * * *” The attached writing

made by A.P. was “he put his fingers in my PP and he put his PP in my butt.” The

following sessions noted that they continued to work in the “No More Hurt”

workbook, and the therapist wrote that she was working with A.P. to help her deal

with her feelings and her dreams.

       {¶31} This was the only place in the sealed records which discussed A.P.’s

disclosure of the additional abuse. Although the trial court did not release these

records to Gutierrez, the Therapist testified at an evidentiary hearing on July 7,

2009, pertaining to various motions before the court.         The Therapist was

questioned in detail about everything that occurred with A.P., and defense counsel

cross-examined the Therapist extensively. At that time, the Therapist answered all

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of the defense counsel’s questions and thoroughly explained how A.P. came to

disclose the additional abuse and all of the attendant circumstances. (See July 7,

2006 Tr., pp. 33-105.)   Although Gutierrez did not have access to the actual FRC

records, he had access to even more information than was contained in the brief

counseling session summaries.

       {¶32} Defense counsel asked the trial court to review the records to look

for “exculpatory evidence” and “inconsistencies in any of the victim’s

statements.” The trial court did so and did not find any exculpatory evidence or

inconsistencies, other than A.P.’s eventual disclosure of the additional abuse.

Gutierrez was already aware of A.P.’s disclosure of the additional abuse as a result

of the information in the indictment, the bill of particulars, and the Therapist’s

testimony at the evidentiary hearing. The records did not provide any further

information concerning this matter. See State v. Donnal, 3d Dist. No. 1-06-31,

2007-Ohio-1632 (finding no error when, after in camera inspection, trial court did

not release confidential records that did not contain relevant evidence.)

       {¶33} After conducting our own review of the records, we concur with the

trial court’s conclusion that there was no exculpatory or contradictory evidence to

disclose that would have been beneficial to Gutierrez’ defense. In determining

whether evidence favorable to an accused was improperly suppressed, such

evidence shall be deemed material “only if there is a reasonable probability that,

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had the evidence been disclosed to the defense, the result of the proceeding would

have been different. A ‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.” United States v. Bagley (1985), 473 U.S.

667, 682 105 S.Ct. 3375, 3383 87 L.Ed.2d 481; State v. Johnston (1988), 39 Ohio

St.3d 48, 61, 529 N.E.2d 898, 911. In this case, trial court cannot be faulted for

not disclosing any exculpatory evidence where none existed.

       {¶34} And, as to Gutierrez’ Confrontation Clause argument relative to the

denial of access to pretrial discovery, the Ohio Supreme Court has stated that

“[t]he Confrontation Clause is not a pretrial discovery device.” (Emphasis added.)

State v. Wickline (1990), 50 Ohio St.3d 114, 118, 552 N.E.2d 913, 918-919. A

defendant cannot claim that he was denied the right to confront his accuser when

he has had the opportunity to cross-examine his accuser at trial. Id.

       {¶35} The trial court’s in camera examination of the sealed records was in

accordance with the law and revealed that they did not contain any exculpatory or

impeachment evidence. Gutierrez’ second assignment of error is overruled.

                            Third Assignment of Error

       {¶36} In his third assignment of error, Gutierrez claims that by denying his

consulting expert access to the FRC, CPSU, and grand jury records discussed

above, the trial court deprived the defense of the effective use of an expert witness

in the area of identifying tainted child-sexual abuse allegations. He alleges that in

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not disclosing all of these items to Dr. Smalldon, the trial court denied Gutierrez

his right to present a defense and his right to due process.

       {¶37} Gutierrez asked the trial court to hire Dr. Smalldon as a consultant to

determine whether the protocols used in the various interviews with A.P. met the

mandates of what is required to obtain an accurate disclosure from a child sexual

victim. (Apr. 30, 2009 Tr., p. 9.) Dr. Smalldon is a forensic psychologist with

some experience in this area. The trial court agreed to retain Dr. Smalldon to

assist in determining whether the interrogation questioning “was done in an

appropriate manner to avoid any psychological suggestion” and “tainting” of the

child’s statements. Now Gutierrez claims that he was denied a defense because

Dr. Smalldon could not render an opinion without access to the records that were

under seal.

       {¶38} First, contrary to the arguments in Gutierrez’ brief and assignment of

error, Dr. Smalldon was never appointed as an expert. The State objected to his

lack of credentials in the purported field and the fact that the defense wanted Dr.

Smalldon to testify as to what was an ultimate matter for the jury to decide, i.e.,

whether the child victim was telling the truth. Therefore, Dr. Smalldon was only

appointed as a “psychological consultant to assist defense counsel in preparation

of the above case for trial.” (May 8, 2009, Judgment Entry.)



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       {¶39} As discussed in our response to the second assignment of error, the

trial court concluded that the sealed records did not contain any exculpatory

evidence or any inconsistencies. Our review of these materials also confirms that

the FRC and CSPU records primarily contained only brief summaries of the

Therapist’s or the investigators’ conclusions; there were no detailed records of the

questioning/interview process. However, Gutierrez was provided with a copy of

the video of the forensic interview with A.P., Detective Tuttle, and Ms. Westrick,

conducted only ten days after A.P. disclosed the abuse. This video clearly showed

what types of questions were asked and it revealed the demeanor and non-verbal

gestures of all of the participants. Dr. Smalldon had access to all of the records

that contained any information pertinent to his review.

       {¶40} The trial court did not err in refusing to release the records filed

under seal to Dr. Smalldon after it determined that there was no relevant evidence

contained therein. Gutierrez’ third assignment of error is overruled.

                           Fourth Assignment of Error

       {¶41} Gutierrez charges that the trial court erred in allowing hearsay

testimony of A.P.’s accusations through her mother; through her Therapist;

through the testimony of Detective Tuttle and Ms. Westrick; and, in the admission

of A.P.’s forensic interview with Detective Tuttle and Ms. Westrick that was

played for the jury. He contends that the trial court violated Ohio’s hearsay rules,

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and Due Process and Confrontation clause principles when it admitted statements

made by the alleged victim to several third parties.

       {¶42} “Hearsay” is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Evid.R. 801(C). Evid.R. 801(D) also specifies

certain statements which are not considered hearsay, such as when the declarant

testifies at trial or hearing and is subject to cross-examination concerning the

statement. See Evid.R. 801(D)(1). Generally, hearsay is not admissible unless

one of several exceptions to the hearsay rule is applicable. See Evid.R. 802-807.

       {¶43} 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, 510

N.E.2d 343.    Absent an abuse of that discretion and a showing of material

prejudice, an appellate court will not overturn a trial court’s ruling. State v.

Martin (1985), 19 Ohio St.3d 122, 129, 483 N.E.2d 1157. The abuse-of-discretion

standard is defined as “[a]n appellate court's standard for reviewing a decision that

is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the

evidence.” State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345,

¶18, quoting Black's Law Dictionary (8th Ed.2004) 11. However, the question as

to whether a defendant’s constitutional rights under Confrontation Clause have



                                        -21-
Case No.5-10-14



been violated is reviewed under a de novo standard. State v. Smith, 162 Ohio

App.3d 208, 2005-Ohio-3579, 832 N.E.2d 1286, ¶8.

      {¶44} At a pretrial evidentiary hearing held on July 7, 2009, the trial court

heard evidence regarding the circumstances of the alleged hearsay statements and

the court ruled to allow the contested testimony. (Aug. 21, 2009 Decision and

Order.) The defense renewed its objections to the admissibility of this evidence at

trial. We will address each of the hearsay complaints separately below.

      {¶45}     (1) Mother’s Testimony. The trial court allowed A.P.’s Mother to

testify as to what A.P. told her Mother the morning she disclosed the sexual abuse,

finding that A.P.’s statements constituted an “excited utterance” hearsay

exception. Gutierrez argues that A.P.’s statement did not constitute an excited

utterance because A.P. did not immediately tell her mother of the abuse, which

had supposedly commenced two years earlier. Furthermore, Gutierrez asserts that

A.P. was initially calm and composed when she approached her mother and did

not become emotional and start crying until her Mother started crying and asked

A.P. to tell another relative what had happened.

      {¶46} Evid.R. 803(2) defines an “excited utterance” as “[a] statement

relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.” Excited utterances are

deemed reliable because, by their nature, they do not entail an opportunity for the

                                       -22-
Case No.5-10-14



declarant to reflect and fabricate or to distort the truth. State v. Wallace (1988), 37

Ohio St.3d 87, 88, 524 N.E.2d 466. Courts have also found that a child's young

age and naiveté may themselves be factors in favor of trustworthiness. State v.

Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶49, fn. 6. This

Court has held that the excited utterance exception is to be applied liberally in

cases involving out-of-court statements made by children who were victims of

sexual abuse on the basis that statements made by young children are often more

trustworthy because children have a more limited ability to reflect on past

incidents. State v. Shoop (1993), 87 Ohio App.3d 462, 472, 622 N.E.2d 655.

       {¶47} For an alleged excited utterance to be admissible, four prerequisites

must be satisfied: (1) the event must be startling enough to produce a nervous

excitement in the declarant, (2) the statement must have been made while the

declarant was still under the stress of excitement caused by the event, (3) the

statement must relate to the startling event, and (4) the declarant must have

personally observed the startling event. State v. Taylor (1993), 66 Ohio St.3d 295,

300-301, 612 N.E.2d 316.        In analyzing whether a statement is an excited

utterance, the Ohio Supreme Court noted that, “[t]he controlling factor is whether

the declaration was made under such circumstances as would reasonably show that

it resulted from impulse rather than reason and reflection.” State v. Humphries

(1992), 79 Ohio App.3d 589, 598, 607 N.E.2d 921.

                                         -23-
Case No.5-10-14



       {¶48} The record discloses that there were several factors present

supporting the trial court’s finding that A.P.’s disclosure to her mother was an

excited utterance. However, we are concerned about the statement that A.P. made

during the forensic interview which indicated that there was reflective thought

behind her decision to tell her Mother about the abuse. The detective asked A.P.

what had made her decide to tell her Mother. A.P. responded that, “I kept thinking

about it and thinking about it cause I didn’t want to keep doing it so I told my

mom.” While we do not believe that this statement, made by a seven-year-old

child, necessarily diminishes the reliability of her statement, it does indicate that

there was some reason and reflection behind A.P.’s statement that would moderate

the applicability of the excited utterance hearsay exception in this instance.

       {¶49} However, irrespective as to whether the statements constituted an

excited utterance, we find that the admission of the Mother’s testimony would be

harmless error even if A.P.’s disclosure to her Mother did not constitute a hearsay

exception.   Although the Mother testified as to what A.P. had told her that

morning, A.P.’s Mother wasn’t relating that information for “the truth of the

matter,” because A.P. later testified and explained to the jury what Gutierrez had

done to her. The purpose of the Mother’s testimony was to explain how she had

obtained knowledge of the abuse; to explain the family’s history and situation; to

discuss A.P.’s behavior and personality, both before and after Gutierrez came into

                                         -24-
Case No.5-10-14



their lives; to testify as to Gutierrez’ reactions when confronted with the abuse;

and to provide chronological context into what occurred before and after the

disclosure. It was not at all necessary for the Mother to have stated the words that

A.P. related to her.

       {¶50} Where a declarant is examined on the same matters as contained in

an impermissible hearsay statement and where the testimony is essentially

cumulative, the admission of any such hearsay statement is harmless. State v.

Tomlinson (1986), 33 Ohio App.3d 278, 281, 515 N.E.2d 963, 967. In this case,

A.P. testified at trial and was available for cross-examination. She testified as to

the same acts that she had told her Mother about on the morning of the disclosure

and that she later disclosed to her Therapist, who also testified about the sexual

abuse. Even if the Mother’s testimony concerning A.P.’s statements were hearsay,

they were merely cumulative of evidence that was before the jury. Accordingly,

admission of these statements would be harmless error. We do not find that, but

for their admission, there was a reasonable probability that the outcome of trial

would have been different.

       {¶51} (2) The Therapist’s Testimony. The same day that A.P. disclosed the

abuse, her Mother called the FRC and requested an emergency appointment. A.P.

was asked to tell her Therapist what she had revealed that morning. At first, A.P.

was uncomfortable and reluctant to say anything. However, her Mother told A.P.

                                       -25-
Case No.5-10-14



that she needed to tell the Therapist in her own words, and she did. Gutierrez

asserts that the statements A.P. made to her Therapist were not made for the

purpose of medical diagnosis and treatment, but were prompted by her Mother’s

suggestions and were a subterfuge made to create a criminal case against

Gutierrez.

        {¶52} Hearsay statements made for the purpose of medical diagnosis or

treatment are admissible pursuant to Evid.R. 803(4). State v. Muttart, 116 Ohio

St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶37; State v. Dever, 64 Ohio St.3d 401,

1992-Ohio-41, 596 N.E.2d 436, paragraph two of the syllabus. The rule may also

apply to statements made to psychological caregivers, therapists, and social

workers. Muttart at ¶563; State v. Chappell (1994), 97 Ohio App.3d 515, 646

N.E.2d 1191; State v. Reigle, 3d Dist. No. 5-2000-14, 2000-Ohio-1786.                            The

salient inquiry is whether the child’s statements were made for purposes of

diagnosis and treatment rather than for some other purpose. Muttart at ¶47.

        {¶53} Prior to their admission, the trial court considered the statements A.P.

made to her Therapist and considered the circumstances surrounding the making

of the hearsay statements and the several factors lending credibility to the

statements.      The trial court found that the Therapist was a licensed clinical

counselor whose job at the FRC consisted of doing diagnostic assessments and
3
 We note that, in State v. Muttart, Ms. Crego-Stahl was one of the therapists whose statement the Ohio
Supreme Court found was not hearsay. Ms. Crego-Stahl was working at the FRC at the time, too.

                                                -26-
Case No.5-10-14



providing treatments through outpatient therapy and play therapy. A.P. had been

counseling with Ms. Crego-Stahl since May of 2007, and had an on-going

counselor-patient relationship.    Additionally, the Mother took A.P. to Crego-

Stahl’s office immediately after the disclosure of sexual abuse for an emergency

session and prior to any contact with law enforcement. Ms. Crego-Stahl continued

to treat A.P. afterwards to help her deal with the issues resulting from the abuse.

Based on all of the circumstances surrounding the child’s disclosure to her

Therapist, the trial court did not abuse its discretion in finding that the Therapist’s

statements qualified as a hearsay exception under Evid.R. 803(4).

       {¶54} (3) Detective Tuttle’s and Ms. Westrick’s Testimony. The out-of-

court statements made by A.P. to Detective Tuttle and Ms. Westrick were hearsay.

However, neither the detective nor Ms. Westrick related those statements to the

jury during their testimony. Their testimony discussed the circumstances of their

interview with A.P., their training and experience in objectively questioning child

sexual victims, and their personal observations as to A.P.’s attitude and demeanor,

and how it changed when she talked about Gutierrez and the abuse.

       {¶55} Both also testified that although there were no physical findings after

A.P.’s examination by a SANE (Sexual Assault Nurse Examiner) nurse, that did

not necessarily rule out sexual abuse. In fact, it was fairly typical for child victims

of sexual abuse not to have physical signs of abuse.          Ms. Westrick and the

                                         -27-
Case No.5-10-14



detective also explained how it was not unusual for a child to later reveal

additional sexual abuse that was not initially disclosed and share the information

in stages. We do not find that any of the testimony of Detective Tuttle or Ms.

Westrick consisted of relating statements made by A.P. for the purpose of proving

the truth of those statements.

       {¶56} (4) Forensic Interview Video. Gutierrez contends that no hearsay

exception applied to the playing and admission of the forensic interview that

Detective Tuttle and Ms. Westrick conducted with A.P. He argues that playing the

video may have violated his Confrontation Clause rights and that it also

constituted hearsay and improper bolstering on the part of the State.

       {¶57} The Confrontation Clause of the Sixth Amendment to the United

States Constitution provides that: “ * * * [i]n all criminal prosecutions, the

accused shall enjoy the right * * * to be confronted with the witnesses against

him.” Crawford v. Washington (2004), 541 U.S. 36, 38, 124 S.Ct. 1354, 158

L.Ed.2d 177. See, also, State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855

N.E.2d 834, ¶13. In Crawford, the United States Supreme Court determined that

testimonial statements by witnesses are inadmissible unless the declarant is

unavailable to testify and the defendant had a prior opportunity for cross-

examination. 541 U.S. at 59.       Significantly, however, the Court in Crawford

also noted that, “ * * * when the declarant appears for cross-examination at trial,

                                        -28-
Case No.5-10-14



the Confrontation Clause places no constraints at all on the use of his prior

testimonial statements. * * * The Clause does not bar admission of a statement so

long as the declarant is present at trial to defend or explain it.” Id. at 59, fn. 9

(internal citations omitted). See, also, State v. Arnold, 126 Ohio St.3d 290, 2010-

Ohio-2742, 933, N.E.2d 775, at paragraph one of the syllabus.

       {¶58} Although the video contained prior testimonial statements by A.P.,

there was no Confrontation Clause violation in this case because A.P. did testify at

trial and Gutierrez had the opportunity to cross-examine her on all of the

statements that were made in the video. Gutierrez concedes that A.P. testified, yet

contends that a Crawford violation would have occurred if this Court had found

that A.P. was not competent to testify. Having found that A.P. was competent to

testify, and given that Gutierrez had a full opportunity to cross-examine her and

the other participants in the forensic interview, we find that the admission of the

video did not violate Gutierrez’ Confrontation Clause rights.

       {¶59} Gutierrez also complains that the testimony on the tape amounted to

hearsay and improper “bolstering.” We find that the admission of the video was

not improper bolstering, but that it was properly admitted under Evid.R. 801(D),

which provides in pertinent part:

       (D) Statements Which Are Not Hearsay. A statement is not
       hearsay if:


                                       -29-
Case No.5-10-14



       (1) Prior Statement by Witness. The declarant testifies at trial
       or hearing and is subject to cross-examination concerning the
       statement, and the statement is * * * (b) consistent with his
       testimony and is offered to rebut an express or implied charge
       against him of recent fabrication or improper influence or
       motive, * * *.

       {¶60} Throughout the entire trial, the defense attempted to show that A.P.

was a chronic liar. The defense also impugned the techniques used to question

A.P. and implied that her accusations may have been the result of suggestive,

coercive, or leading questioning techniques.      Because Gutierrez raised these

issues, it was proper for the State to show the video for the purpose of rebutting

these arguments. In the tape, the jury can see the type of questions that were asked

and discern for themselves whether Detective Tuttle and Ms. Westrick were trying

to improperly influence A.P. It also gave the jury the opportunity to observe A.P.

tell what had happened near the time of the abuse when the memories were fresh

in her mind. As the Ohio Supreme Court has stated, these types of observations

can be very useful.

       We believe the live testimony of a child who has claimed abuse
       will in most cases enhance the reliability of the fact-finding
       process. Videotaping or recording the interviews in which the
       out-of-court statements of the child are obtained would further
       enhance the integrity of the fact-finding proceeding. In many
       instances, Evid.R. 801(D)(1) or other Rules of Evidence would
       allow for the admission of the audio tapes or videotapes. * * * If
       taping occurs and the tape is actually admitted into evidence, the
       trier of fact would have the benefit of the child's actual words and
       at least some insight as to the child's demeanor. The trial court

                                       -30-
Case No.5-10-14



       also would have the benefit of the actual questions or conversation
       which led up to the child's indication that an individual had
       abused the child. Certainly the questions asked can be a
       significant factor in determining the reliability of the response,
       as the Supreme Court of the United States acknowledged in
       Idaho v. Wright.

(Emphasis added.) State v. Storch, 66 Ohio St.3d 280, 292, 1993-Ohio-38, 612

N.E.2d 305

       {¶61} Gutierrez strongly complained about A.P.’s credibility throughout

the entire trial process. The trial took place nearly two years after the last episode

of abuse. By viewing the video, the jury could see the child’s demeanor at this

time, when she was seven years old, and judge her credibility for themselves, as

well as hear the exact type of questioning that took place to elicit her disclosure.

The admission of the video testimony was proper under Evid.R. 801(D), and it did

not violate Gutierrez’ Confrontation Clause rights because A.P. and the other

witnesses testified at trial and were available for cross-examination.

       {¶62} Based on all of the above, we find that the trial court did not violate any

evidentiary rules or Gutierrez’ constitutional rights. The fourth assignment of

error is overruled.

                              Fifth Assignment of Error

       {¶63} In this assignment of error, Gutierrez alleges that the trial court erred

by failing to excuse one of the jurors for cause and that the jury’s composition


                                         -31-
Case No.5-10-14



violated his right to an impartial jury. Specifically, Gutierrez charges that Juror

No. 8 should have been excused for cause because she had three people in her life

who had been raped or abused. He further complains that the composition of the

jury violated his constitutional rights to an impartial jury because many of the

other jurors were predisposed to finding him guilty because they had friends or

family members who were victims of sexual abuse; they had connections with law

enforcement personnel; and/or, they worked together for the same employer.

       {¶64} Both the Sixth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution provide that a criminal defendant is

entitled to a speedy and public trial “by an impartial jury.” The purpose of voir

dire is to examine prospective jurors to determine whether they have both the

statutory qualification of a juror and are free from bias or prejudice. Pavilonis v.

Valentine, (1929), 120 Ohio St. 154, 165 N.E. 730, at paragraph one of the

syllabus. Under Crim.R. 24, a defendant may challenge for cause:

       [t]hat the juror is possessed of a state of mind evincing enmity or
       bias toward the defendant or the state, but no person summoned
       as a juror shall be disqualified by reason of a previously formed
       or expressed opinion with reference to the guilt or innocence of
       the accused, if the court is satisfied, from the examination of the
       juror or from other evidence that the juror will render an
       impartial verdict according to the law and the evidence
       submitted to the jury at the trial.




                                       -32-
Case No.5-10-14



Crim.R. 24(C)(9); State v. Farr, 3d Dist. No. 13-06-16, 2007-Ohio-3136, ¶7.

Pursuant to R.C. 2313.42, a prospective juror may be challenged for cause if he

“discloses by his answers that he cannot be a fair and impartial juror or will not

follow the law as given to him by the court.” R.C. 2313.42(J). See, also, Crim.R.

24(C)(9) (a challenge for cause may be made when the prospective juror “is

possessed of a state of mind evincing enmity or bias toward the defendant or the

state.”)   When a juror's impartiality is at issue, the relevant question is “did a

juror swear that he could set aside any opinion he might hold and decide the case

on the evidence, and should the juror's protestation of impartiality have been

believed.” Dennis v. Mitchell (C.A.6, 2003), 354 F.3d 511, 520, quoting Patton

v. Yount (1984), 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847.

      {¶65} “A trial court's ruling on a challenge for cause will not be disturbed

on appeal unless it is manifestly arbitrary and unsupported by substantial

testimony, so as to constitute an abuse of discretion.” State v. Williams, 79 Ohio

St.3d 1, 8, 1997-Ohio-407, 679 N.E.2d 646, 654. The trial judge has the benefit of

observing the prospective jurors’ demeanor and body language, and therefore,

“deference must be paid to the trial judge who sees and hears the juror.” Id.,

quoting Wainwright v. Witt (1985), 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83

L.Ed.2d 841, 853.



                                       -33-
Case No.5-10-14



      {¶66} During an individual voir dire conducted in chambers, Juror No. 8

disclosed that she had a daughter and a good friend who had been raped, and a

sister that had been abused. Gutierrez contends that Juror No. 8 should have been

excused because she admitted to the court that it would “be difficult” to disregard

her life experiences and she might be “emotional.” (Tr. at 167-68.) However,

upon further inquiry, it was learned that the juror did not know many details of

these incidents. The situation with her friend occurred about twenty years earlier.

The marital situation involving her sister was resolved six to seven years ago when

her sister was divorced. The situation involving her daughter had also occurred

more than five years earlier when her daughter was in college. None of the

incidents were reported to the police.        Upon further questioning, the juror

acknowledged that her situations were very different from a stepfather being

accused of raping a seven-year-old child.

      Q:    Given the nature of the charges filed in this case, would
      you rather not hear this case given your own personal
      experiences opposed to some other case for instance?

      Juror 8:     This is different. I understand it’s different. I
      would say definitely it would be easier to be not emotional or not
      as emotionally tied to a different type of case.

      ***

      Q:    I guess it’s back to you. What is your gut telling you
      about being able to fairly and impartially judge this case only on


                                       -34-
Case No.5-10-14



       the evidence in the courtroom, exhibits, if any, Court’s
       instructions on Ohio law?

       Juror 8:     I think I can do it. I may be more emotional than
       other people, but I mean, it’s the situation.

(Tr. at 171-72.) The trial court declined to excuse Juror No. 8 for cause because

she was willing to do her best to disregard the history she brought to court.

Gutierrez’ attorney later used one of his four peremptory challenges to excuse

Juror No. 8.    Now Gutierrez complains that he was prejudiced because this

precluded him from using that peremptory challenge on one of the other remaining

jurors. See State v. Broom (1988), 40 Ohio St.3d 277, 287, 533 N.E.2d 682.

       {¶67} Gutierrez relied extensively upon a decision from the Tenth District

Court of Appeals in support of his argument that the trial court erred when it failed

to excuse Juror No. 8. See State v. Zerla, Franklin App. No. 91AP-562, 1992 WL

55433, *2-3. The Tenth District Court of Appeals stated that “the presence of a

recent rape victim on a jury in a rape trial” could compromise the defendant’s

right to an impartial jury. (Emphasis added.) Id. In Zerla, the defendant was

being tried for rape and kidnapping, and the juror herself had been raped only

three years earlier and was still suffering from trauma and undergoing counseling.

Here, Juror No. 8 was not the victim herself, and the incidents occurred many

years prior. The situation in this case is completely distinguishable from that in

Zerla and its holding is not applicable.

                                           -35-
Case No.5-10-14



         {¶68} It was the task of the trial judge to observe the prospective jurors and

determine whether, after explanation, they could indeed follow the law and be fair

and impartial. The issues pertaining to Juror No. 8 involved different situations,

happened many years ago, and the juror confirmed that they would not affect her

decision in this case. In addition, the court advised counsel that there would be

two alternate jurors available for substitution in the event one of the jurors, i.e.,

Juror No. 8, realized during trial that she could not be fair and impartial. There is

nothing to show the trial court abused its discretion in not excusing Juror No. 8 for

cause.

         {¶69} Gutierrez also complains that once the jury was selected, the jury as a

whole could not be fair and impartial. However, there was never any challenge to

the final composition of the jury, which results in a waiver of all but plain error.

Plain error does not exist unless it can be said that, but for the error, the outcome

of the trial clearly would have been different. State v. Long (1978), 53 Ohio St.2d

91, 97, 372 N.E. 2d 804. Notice of plain error under Crim.R. 52(B) is to be taken

with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice. Id.

         {¶70} Gutierrez claims that every one of the twelve jurors had a relevant

experience or connection that would raise doubts about his or her impartiality.

However, this conclusion is arrived at by taking the jurors’ various comments

                                          -36-
Case No.5-10-14



during voir dire out of context. When the entire inquiry of each juror is reviewed,

it becomes evident that most of the issues were extremely minor or tenuous and

not likely to cause any bias.     Furthermore, all of the jurors were carefully

questioned at great length and they affirmatively indicated that their

experiences/connections would not influence them in any way or affect their

ability to be fair.

         {¶71} For example, one juror’s son went to the same school as A.P., but

she had no idea whether or not they were in the same class or if he knew her.

Another juror’s husband was cousin to a sheriff (who was not involved in the

trial), but they did not associate with him other than once every five years when

the family had a “cousins party.” Three of the jurors worked for the same large

employer in town, Marathon, but no one had any kind of supervisory or influential

position with respect to the others. One of the Marathon jurors did not know the

other two at all. The other two knew each other casually, but worked in different

areas.

         {¶72} Two of the jurors did have a family member who had been molested,

and two of the jurors had been molested themselves when they were younger.

However, these incidents had all happened at least twenty to thirty years earlier.

Only one of the incidents had ever been reported or prosecuted. Each juror was



                                       -37-
Case No.5-10-14



confident that he or she could be fair and impartial. All explained why they could

put aside any personal issues and judge this case solely on its own merits.

       {¶73} The record does not reveal any indication that any of the jurors had a

problem with fairness and impartiality. Gutierrez’ allegations are based upon

speculation rather than any actual concerns expressed by the jurors, the attorneys,

or the trial court. Furthermore, we must give due deference to the trial judge who

was actually able to see and hear the potential jurors during the entire day-long

voir dire process. Gutierrez has failed to establish plain error by the trial court.

The fifth assignment of error is overruled.

                             Sixth Assignment of Error

       {¶74} Gutierrez claims that there was insufficient evidence as a matter of

law to convict him of five of the six counts and that the convictions were also

against the manifest weight of the evidence. Gutierrez asserts that counts five and

six were not supported by sufficient evidence because there was no testimony

from the victim that any digital penetration or anal rape occurred on July 13, 2010;

and, that counts one, two and three did not meet the sufficiency standard because

the victim did not testify that the sexual conduct occurred in the date-range set

forth in the indictment. He also argues that the verdict was against the manifest

weight of the evidence because the State’s only evidence was the testimony of a

young child who had credibility issues. Gutierrez claims that all of the other

                                        -38-
Case No.5-10-14



witnesses merely repeated what they had been told by A.P. and did not see, hear or

otherwise witness any of the alleged events.

       {¶75} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence

submitted at trial, if believed, could reasonably support a finding of guilt beyond a

reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–

52, 678 N.E.2d 541, 546 (stating, “sufficiency is the test of adequacy”); State v.

Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The standard of

review is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements of

the offense beyond a reasonable doubt. Jenks, supra; Jackson v. Virginia (1979),

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. This test raises a question of law

and does not allow the court to weigh the evidence. State v. Martin (1983), 20

Ohio App.3d 172, 175, 485 N.E.2d 717.

       {¶76} Gutierrez was found guilty of violating R.C. 2907.02(A)(1)(b),

which states:

       (A)(1) No person shall engage in sexual conduct with another
       who is not the spouse of the offender * * *, when any of the
       following applies:

       ***

       (b) The other person is less than thirteen years of age * * *.

                                        -39-
Case No.5-10-14




      (B) Whoever violates this section is guilty of rape, a felony of the
      first degree. * * * [I]f the victim under division (A)(1)(b) of this
      section is less than ten years of age, * * * the court may impose
      upon the offender a term of life without parole.

      {¶77} Gutierrez complains that the victim did not testify that the sexual

conduct occurred in the date-range set forth in the indictment for the first three

counts, between September 5, 2006 and June 8, 2007. However, A.P. did testify

that each of the three different sex acts occurred more than one time when she was

in kindergarten. (Trial Tr., p. 368.) And, A.P.’s Mother testified that A.P. was

born in December of 2000, and that she attended kindergarten during the “ ‘06, ’07

school year” which “began in September and ended in May or June.” A.P.’s

testimony was as follows:

      Q. I want to talk about [Gutierrez], okay. Is there anything
      that ever happened [that Gutierrez] made you do that you didn’t
      like?

      A.    Yes.

      Q.    Did this happen one time or more than one time?

      A.    More than one time.

      Q.    When did it start happening?

      A.    Kindergarten

(Trial Tr., pp. 358-59.)    Further questioning confirmed that these things would

happen in her bedroom in her home in Findlay.

                                       -40-
Case No.5-10-14



       Q. * * * [A.P.], can you tell us what it is that [Gutierrez] made
       you do that you didn’t like?

       A.    May I write it?

       ***

       Q.    Thank you. [A.P.], why is it you wanted to write it?

       A.    Because I don’t like saying it.

(Id. at 360.) The State then displayed the paper with A.P.’s writing for all to see.

A.P. wrote: “he made me suck on his P.P. and put his P.P. in my butt and his

finger in my P.P.” (State’s Ex. No. 1.) A.P. confirmed that the “he” she was

referring to was Gutierrez, and both the State and the defense questioned A.P.

about her written statement. It was also established, through questioning and

having A.P. circle the appropriate body parts on anatomical drawings, that her

reference to Gutierrez’s “P.P.” was his penis, the reference to A.P.’s “P.P.” was

her vagina, and for “butt,” she circled the anal region of the buttocks. (Trial Tr.,

pp. 360-67.) She further confirmed that it started when she was “in kindergarten”

and that “each of these different things” happened more than one time. (Id. at

368.) There was clearly sufficient evidence to prove the occurrence of the rapes

within the time frames of the first three counts in the indictment.

       {¶78} As to counts five and six, Gutierrez claims they were not supported

by sufficient evidence because there was no testimony from the victim that any


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Case No.5-10-14



digital penetration or anal rape occurred on or about July 13, 2010. We disagree.

The State asked A.P.:

      Q. When was the last time that something like this happened
      with you and [Gutierrez]?

      A.   Three years ago, maybe two.

      Q. Okay. Do you remember a trip you had taken close to that
      time?

      A.   I think it was to the zoo.

      Q. To the zoo. We were hearing some talk about a place called
      The Wilds. You ever been to the Wilds?

      A.   Yes, that’s where it was.

      Q.   Is that like a zoo?

      A.   Yeah.

(Emphasis added.) (Id. at 359.) After a few more questions about the animals and

what she saw at The Wilds, the State then asked, “can you tell us what it is that

Ronnie made you do that you didn’t like?” (Id. at 360.) It was at this point that

A.P. wrote on the paper, specifying all three sex acts. Although A.P. didn’t state

the date of her trip to The Wilds, her Mother had previously testified about the

family outing that the three of them had taken to The Wilds during the weekend

of July 12 and 13, 2008, and the fact that Gutierrez had put A.P. to bed that




                                        -42-
Case No.5-10-14



evening of July 13th after they returned home. (Id. at 308.) It was on the morning

of the July 14th that A.P. disclosed that Gutierrez had been abusing her.

       {¶79} A challenge to the sufficiency of the evidence requires us to construe

the evidence, and all reasonable inferences, in favor of the prosecution. Based

upon this standard, we find that the evidence was sufficient to allow “any rational

trier of fact [to find] the essential elements of the crime beyond a reasonable

doubt.” See Jackson, 443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; Jenks, at

paragraph two of the syllabus.

       {¶80} Next, Gutierrez argues that the verdict was against the manifest

weight of the evidence because the only evidence was the testimony of a young

child who had credibility issues. He asserts that all of the other witnesses merely

repeated what they had been told by A.P.

       {¶81} A challenge to a conviction based on the manifest weight of the

evidence concerns “the inclination of the greater amount of credible evidence,

offered in a trial to support one side of the issue rather than the other. It indicates

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

verdict, if, on weighing the evidence in their minds, they shall find the greater

amount of credible evidence sustains the issue which is to be established before

them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d at 387, 678

                                         -43-
Case No.5-10-14



N.E.2d 541. A new trial should be granted only in the exceptional case in which

the evidence weighs heavily against conviction. Id. Although the appellate court

acts as a “thirteenth juror,” it still must give due deference to the findings made by

the fact-finder. State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d

456.

       The fact-finder, being the jury, occupies a superior position in
       determining credibility. The fact-finder can hear and see as well
       as observe the body language, evaluate voice inflections, observe
       hand gestures, perceive the interplay between the witness and
       the examiner, and watch the witness' reaction to exhibits and the
       like. Determining credibility from a sterile transcript is a
       Herculean endeavor. A reviewing court must, therefore, accord
       due deference to the credibility determinations made by the fact-
       finder.

Id. To reverse the judgment of a trial court on the weight of the evidence based

upon a jury’s verdict, a unanimous concurrence of all three judges on the

reviewing panel is required. Thompkins, at paragraph four of the syllabus.

       {¶82} Gutierrez continues to discount A.P.’s testimony and impugn her

credibility. However, not only did the trial court find that A.P. was competent to

testify, as discussed above, but both the State and defense counsel further

questioned A.P. at trial as to her understanding of the difference between the truth

and a lie, and her responsibility to tell the truth. Her testimony appeared to be

reasonable and consistent, and the jury was in a superior position to personally

observe A.P. and judge her credibility.

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       {¶83} It is true that A.P. was the only one able to testify from her first-hand

personal experience. This is typical in cases of sexual abuse where there is rarely

a third-party witness. However, the State’s other witnesses did much more than

merely reiterate what A.P. had told them. They provided a considerable amount of

additional information that could be helpful to a jury.

       {¶84} A.P.’s Mother testified how A.P. had been a very happy, bright,

sweet and loving child prior to Gutierrez being a part of their lives. She then

disclosed how A.P.’s behavior had changed for the worse after she married

Gutierrez. The Mother testified as to A.P.’s demeanor the morning A.P. disclosed

the abuse, and how she was crying and was extremely upset. She also testified

that A.P. had not had much contact with her biological father prior to the time of

the disclosure, and that this was not a matter of a custody dispute. Therefore,

A.P.’s claims were not motivated by those factors.

       {¶85} Detective Tuttle and Ms. Westrick testified as to their role in the

investigation and specifically, the forensic interview they participated in with A.P.

Both testified as to their extensive experience and training in questioning child

victims in a “neutral fact finding interview,” and how the main protocol was to

never lead the child. They testified how A.P.’s disclosure was the result of open-

ended questioning, and discussed how her demeanor changed drastically when

discussing the abuse, with becoming sullen and withdrawn. Both testified that

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Case No.5-10-14



even though A.P.’s medical exam did not reveal any physical findings, that was

often typical in the case of child victims and did not rule out sexual abuse.

       {¶86} Detective Tuttle had also interviewed Gutierrez. Although Gutierrez

denied the sexual abuse, he did acknowledge that he regularly put A.P. to bed, by

himself and with the bedroom door closed. Gutierrez also admitted to rubbing

A.P.’s stomach or back “to help A.P. fall asleep.” (Tr. at 406-407.)

       {¶87} A.P.’s Therapist testified about how A.P. disclosed the abuse to her

during an emergency session late on July 14th. It was after this disclosure that the

Therapist called the CPSU. She explained that, based upon her experience and

training in dealing with children in sexual abuse cases, A.P.’s resultant feelings of

guilt – and thinking that she had done something bad -- was a common reaction.

(Tr. at p. 498-99.)

       {¶88} The Therapist explained how she used a workbook with A.P. in

subsequent counseling sessions to help A.P. talk about the abuse so she could

process it, get rid of the associated bad dreams, and eventually begin to feel safe

again. The workbook, “No More Hurt,” was used to help A.P. work through

memories in a safe way and with drawings. It was during these sessions that A.P.

eventually disclosed that in addition to the oral sex, Gutierrez “put his fingers in

her PP and stuck his PP in her butt.” (Id. at 501.) The Therapist diagnosed A.P.



                                        -46-
Case No.5-10-14



as having PTSD (post-traumatic stress disorder), meaning she had a traumatic

experience and the memories keep coming back and bothering her. (Id. at 502.)

       {¶89} We have already found that there was sufficient evidence to establish

that Gutierrez had performed the three sexual acts within each of the specified date

ranges. We have also explained why there was ample reason for the jury to find

that A.P.’s testimony was believable, and how the testimony of the State’s other

witnesses went far beyond merely repeating A.P.’s allegations, and it provided

considerable additional information to help the jury. The jury was free to believe

or disbelieve testimony as it saw fit and apply it accordingly. Because we find that

the record does not establish that the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed, we overrule

Gutierrez’s sixth assignment of error.

                           Seventh Assignment of Error

       {¶90} In his seventh assignment of error, Gutierrez asserts that his sentence

is contrary to law because the judgment entry failed to properly impose postrelease

control (“PRC”). Gutierrez complains that the judgment entry advised that he

faced “up to five years” of PRC, rather than imposing the correct definitive term

of five years of PRC.




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Case No.5-10-14



       {¶91} At the sentencing hearing, after imposing multiple life sentences and

life sentences without the possibility of parole, the trial court addressed the issue

of PRC and stated on the record:

       In view of the sentence I have imposed, Mr. Gutierrez, the
       following is probably not applicable but the law tells me that I
       have to tell you that if you are ever released from the Ohio
       Department of Rehabilitation and correction, you are
       mandatorily subject to five years of supervision on post-release
       control * * *. For first degree felony sex offenses, which these are,
       it’s five years mandatory. As I say those are probably wasted
       words because in the context of the sentence I just imposed, I
       don’t think they will become applicable.

(Emphasis added.) (Mar. 18, 2010 Sentencing Hearing, p. 19.) Although the trial

court correctly informed Gutierrez of the imposition of PRC at the sentencing

hearing, Gutierrez is correct in stating that the judgment entry did not reflect what

actually occurred at the sentencing hearing and it incorrectly indicated that he was

subject to “up to” five years of PRC.

       {¶92} R.C. 2929.191, enacted as part of H.B. 137, establishes a procedure

to remedy sentences that fail to properly impose a term of PRC for defendants,

like Gutierrez, who were sentenced on or after its July 11, 2006 effective date.

See State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958,

paragraph two of the syllabus. It is only the PRC aspect of a sentence that must be

rectified and the remainder of the sentence remains valid under the principles of



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Case No.5-10-14



res judicata. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, ¶17.

      {¶93} Furthermore, because the trial court correctly imposed PRC at the

hearing, it would appear that the incorrect language in the judgment entry was a

clerical error or mistake. “The term ‘clerical mistake’ refers to a mistake or

omission, mechanical in nature and apparent on the record, which does not involve

a legal decision or judgment.” See, e.g., State v. Brown, 136 Ohio App.3d 816,

819-820, 2000-Ohio-1616, 737 N.E.2d 1057. Courts retain continuing jurisdiction

to correct clerical errors in judgments by nunc pro tunc entries to reflect what the

court actually decided. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,

2006-Ohio-5795, 856 N.E.2d 263, ¶18–19; Crim.R. 36. The Ohio Supreme Court

has recently affirmed that the trial court is authorized to correct the mistake by

nunc pro tunc entry without holding a new sentencing hearing when a defendant is

notified of the proper term of PRC at the sentencing hearing and the error is

merely clerical in nature. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303,

2011-Ohio-229, 943 N.E.2d 1010, ¶14.

      {¶94} Therefore, Gutierrez’ seventh assignment of error is affirmed. The

cause is remanded to the trial court for further proceedings consistent with this

decision.



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                                  Eighth Assignment of Error

        {¶95} In his final assignment of error, Gutierrez claims that he was denied

the effective assistance of counsel4 under the standard set forth in Strickland v.

Washington and State v. Bradley. Specifically, Gutierrez submits that counsel

acted deficiently in four instances: (1) counsel did not object to the impartial

composition of the jury, as set forth in the Fifth Assignment of Error; (2) counsel

failed to object when A.P. was permitted to write her allegations of sexual abuse

and he should have reiterated Crawford objections to the forensic interview

evidence; (3) counsel performed deficiently by not utilizing the information that

A.P. had tested positively for genital herpes, while Gutierrez had not, for purposes

of impeachment and to further the line of defense that any sex acts done upon A.P.

were done by persons other than Gutierrez; and (4) by failing to object to the trial

court’s denial of questioning concerning Detective Tuttle’s investigation of the

trailer park for registered sex offenders.

        {¶96} To establish ineffective assistance of counsel, a defendant must show

(1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable


4
  Gutierrez was originally represented by two attorneys from the Hancock County Public Defender’s
Office. Four days before the scheduled September 14, 2009 trial date, Gutierrez requested new counsel
who were not affiliated with Hancock County. Gutierrez was concerned that his current counsel had “too
many other cases to focus exactly on what [he] want[ed]” and he felt that he needed “another opinion on
[his] case.” (Sept. 10, 2009 Tr., pp. 6-7.) A new attorney from the Ohio Public Defender’s Office in
Columbus was appointed and the trial was rescheduled for January 2010, and then moved to March 2010.

                                                -50-
Case No.5-10-14



probability that but for counsel's errors, the proceeding's result would have been

different. Strickland v. Washington (1984), 466 U.S. 668, 687-688, 694, 104 S.Ct.

2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373, paragraphs two and three of the syllabus. There is a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance, and that strategy and tactical decisions exercised by defense counsel

are well within the range of professionally reasonable judgment and need not be

analyzed by a reviewing court. State v. Robinson (1996), 108 Ohio App.3d 428,

670 N.E.2d 1077.

       {¶97} First, Gutierrez complains that his counsel was ineffective because

he did not object to the “impartial composition of the jury.”     The record shows

that both attorneys and the trial court carefully questioned each juror, both during

the public voir dire process and privately in chambers, as was appropriate for all of

the jurors who had indicated on their questionnaires that they knew someone “who

had ever been the victim of physical, sexual or emotional abuse.” As discussed in

our review of the Fifth Assignment of Error, the issues complained of by Gutierrez

were usually not problematic and/or they had happened long ago in the past. The

record shows that all of the jurors who were seated were certain that they could be

fair and impartial. We do not find that any objection would have resulted in the

trial court finding cause to dismiss any of the jurors who were seated.

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Case No.5-10-14



       {¶98} Furthermore, decisions on the exercise of jury challenges are a part

of trial strategy. State v. Goodwin (1999), 84 Ohio St.3d 331, 341, 703 N.E.2d

1251. Trial counsel, who observe the jurors firsthand, are in a much better position

to determine whether a prospective juror should be challenged. See State v. Keith

79 Ohio St.3d 514, 521, 1997-Ohio-367, 684 N.E.2d 47.                 All of the jurors

complained of by Gutierrez stated that they would be able to base their decisions

solely on the evidence presented in court and could fairly and impartially decide

the case. Because none of the jurors indicated any bias or prejudice, Gutierrez has

not shown that having this jury panel denied him a fair trial. See State v. Trimble,

122 Ohio St.3d 297, 311, 2009-Ohio-2961, 911 N.E.2d 242, 262, ¶99. Therefore,

counsel was not ineffective for failing to raise such an objection.

       {¶99} Next, Gutierrez claims that counsel was ineffective for failing to

object when A.P. was permitted to write her allegations of sexual abuse as

opposed to requiring her to say out loud what Gutierrez allegedly did to her

sexually. He claims that this accommodation violated his right to a fair trial and

“confrontation” because A.P. was, in effect, “not available to actually testify to the

jury” because she wrote out her allegations.

       {¶100} We find that this argument fails for several reasons. The protection

of child sexual abuse victims is an important public policy recognized in Ohio.

State v. Eastham (1988), 39 Ohio St.3d 307, 310, 530 N.E.2d 409, 411-412.

                                        -52-
Case No.5-10-14



Special accommodations/procedures are often allowed for child victims of sexual

abuse to minimize the emotional trauma and stress of having to testify in a

courtroom full of strangers, along with accused. See, e.g., In re Howard (1997),

119 Ohio App.3d 33, 38, 694 N.E.2d 488 (child victims allowed to testify via

closed-circuit T.V. from another room); State v. Miller (1988), 44 Ohio App.3d

42, 45, 541 N.E.2d 105 (it is within court’s discretion to allow state to ask leading

questions of child rape victim); State v. Johnson (1986), 38 Ohio App.3d 152, 155,

528 N.E.2d 567 (listing special procedures used by various courts, such as

allowing the child to sit in support person’s lap while testifying; allowing the child

to whisper responses to the prosecutor; allowing child to point rather than state out

loud).

         {¶101} Evid.R. 611(A) provides that a trial court “shall exercise reasonable

control over the mode and order of interrogating witnesses and presenting

evidence so as to (1) make the interrogation and presentation effective for the

ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect

witnesses from harassment or undue embarrassment.” (Emphasis added.) It is

within the trial court's discretion as to how evidence should be presented. The trial

court had already ruled that special procedures would be permitted at trial in order

to allow A.P. to testify and develop the case for the jury in a manner that would

spare her “discomfort and embarrassment.”         (Aug. 21, 2009 Order.)       Again,

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Case No.5-10-14



Gutierrez cannot show that objecting to the written statement that was permitted

for a small portion of A.P.’s testimony would have had any likelihood of success.

          {¶102} Additionally, “the Confrontation Clauses were written into our

Constitutions ‘to secure for the opponent the opportunity of cross-examination. * *

*’” (Emphasis sic; citations omitted.) State v. Self (1990), 56 Ohio St.3d 73, 76,

564 N.E.2d 446, 450. Although A.P. wrote her initial statements describing the

specific sexual acts, defense counsel had a full opportunity to cross examine her

and ask any questions he wanted to concerning the statements that A.P. had

written. The written testimony was fully displayed in open court for everyone to

see. Therefore, counsel was not ineffective for failing to raise a Confrontation

Clause objection because A.P. was available to testify and be cross-examined.

Her written responses did not deprive Gutierrez of any of his constitutional rights.

As we find that there was no established error in the special procedures allowed

for the child-victim, Gutierrez’ trial counsel was not ineffective for failing to

object.

          {¶103} Third, Gutierrez claimed that trial counsel had information that A.P.

had tested positively for genital herpes, while Gutierrez had not. He asserts that

counsel performed deficiently by not utilizing that information for impeachment

purposes against A.P. to argue that her contraction of the STD “from someone



                                          -54-
Case No.5-10-14



other than Gutierrez” accounted for her knowledge of sex acts and to further the

line of defense that any sex acts upon A.P. were done by someone else.

        {¶104} On January 15, 2010, the State filed a motion in limine pursuant to

R.C. 2907.02(E) (part of Ohio’s “rape shield” laws) with regards to A.P.’s medical

test results for genital herpes. The State’s basis for this motion was three-fold.

First, and contrary to Gutierrez’ claim, the State contended he was never tested for

genital herpes. We do not find any evidence of a negative test result for Gutierrez5

within the record. Secondly, the State argued that genital warts can be transmitted

from a person who carries the virus, even though that person has no visible warts.

And third, the medical report from the victim’s examination indicated that the

infection from which the victim suffers could also be from a non-sexual

transmission. Gutierrez’ counsel did not file a response or objection. At the

hearing on the matter, Gutierrez’ counsel stated:

        I have, after some conversation and thought and research,
        elected not to file a response to that motion in limine. I will say
        to the Court, I am not agreeing with the prosecution. I’m simply
        electing, given the state of the law, not to file a response to that
        motion in limine. And, I will let the court use its own discretion
        in terms of ruling appropriately.

(Feb. 18, 2010 Hearing, p. 4.) Gutierrez’ counsel researched and considered the

matter carefully before making the calculated decision not to oppose the motion in

5
 Although Gutierrez was ordered to undergo testing for STDs, there is no indication in the record as to
whether he obtained that testing. There was a pre-trial request by Gutierrez’ counsel to rescind the
permission that he had previously given pertaining to the release of his medical information.

                                                -55-
Case No.5-10-14



limine. A reviewing court “will not second-guess trial strategy decisions.” State

v. Mason, 82 Ohio St.3d 144, 157, 1998-Ohio-370, 694 N.E.2d 932. It would

appear that trial counsel’s decision not to raise this matter was based upon a

thorough review of the facts and the law and did not constitute ineffective

assistance of counsel.

       {¶105} And finally, Gutierrez claims that counsel erred by not lodging an

objection on confrontation grounds to the trial court’s ruling against questioning

Detective Tuttle concerning his investigation of the trailer park for registered sex

offenders. Counsel attempted to ask the detective if there were any other known

sex offenders living in the area with whom A.P. might have had contact. The

State objected on the grounds of relevancy and the trial court sustained the

objection.

       {¶106} “The scope of cross-examination falls within the ambit of trial

strategy, and debatable trial tactics do not establish ineffective assistance of

counsel.”    State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d

810, ¶101. In addition, to fairly assess counsel's performance, “a court must

indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052,

80 L.Ed.2d 674. Gutierrez has not asserted that his trial counsel had any facts or

information, beyond mere conjecture and irrelevant speculation, with which to

                                       -56-
Case No.5-10-14



counter the State’s objection. Therefore, we do not find that his acquiescence to

the trial court’s evidentiary ruling on his cross-examination can be considered

ineffective.

         {¶107} Based on all of the above, there is no merit to Gutierrez’ claims that

his trial counsel was ineffective. The eighth assignment of error is overruled.

         {¶108} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued in Assignments of Error One, Two, Three, Four,

Five, Six, and Eight, we affirm the judgment of the trial court as to those

assignments of error. However, we find that Assignment of Error Seven was well-

taken and we hereby remand the matter to the trial court, solely pertaining to the

matter of following the appropriate procedure to reflect the proper postrelease

control.

                                                         Judgment Affirmed in Part,
                                                              Reversed in Part and
                                                                  Cause Remanded

ROGERS, P.J. concurs, and concurs in Judgment Only as to Assignment of
    Error #4.
PRESTON, J., concurs.

/jlr57




                                         -57-
