[Cite as State v. Williams, 2017-Ohio-8898.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                 :     APPEAL NO. C-160336
                                                      TRIAL NO. B-1501161
        Plaintiff-Appellee,                    :
                                                         O P I N I O N.
  vs.                                          :

CHRIS WILLIAMS,                                :

     Defendant-Appellant.                      :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 8, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
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M OCK , Presiding Judge.

       {¶1}    Defendant-appellant Chris Williams was convicted of raping two

minors under the age of ten. He was sentenced to life in prison on each count, with

the sentences to be served consecutively.      Williams now appeals, raising nine

assignments of error.

                    Children’s Disclosure of Abuse by Williams
                              Results in Convictions

       {¶2}    The victims’ mother was in a relationship with Williams over a period

of several years until Williams left to live with his mother and the victims’ mother

went to live with her parents. The couple had three children, N.W., M.W., and a

third child not at issue in this case. While Williams had no custody rights to the

children, had not established his paternity, and had not provided consistent support,

he did not deny that the children were his. The children would occasionally have

overnight visits with Williams at his mother’s home.

       {¶3}    N.W. and M.W. separately informed their mother that Williams had

touched them inappropriately. M.W. told her mother that Williams had touched her

“on her butt.” When her mother asked her to point to where he had touched her,

M.W. pointed to her vagina. She said he touched her underneath her panties while

Williams and her sisters had been in bed together sleeping. M.W.’s mother did not

report this incident to anyone else. Six months later, N.W. reported that Williams

had done the same thing to her. At that point, the girls’ mother contacted the

Cincinnati Police Department.

       {¶4}    The mother took the girls to the Mayerson Center to be interviewed

“so they could advise me on what treatment the girls need.” Both reported that

Williams had digitally penetrated their vaginas.




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       {¶5}    During the course of their investigation, detectives interviewed

Williams. Williams denied any inappropriate behavior. Williams admitted that he

would sometimes “examine” the girls’ private areas to determine if they had been

abused by others. He would have the girls remove their clothing and spread their

legs so he could examine them. He told the detectives that he did this under the

supervision of his mother. When the interview concluded, but while Williams was

still in the police station, one of the detectives called Williams’s mother. She denied

anything like that had occurred, and she said that she would have called the girls’

mother if it had. Williams’s mother called back 45 minutes later and contradicted

her prior statements, telling the detective that such examinations had occurred

under her supervision.

       {¶6}    At trial, the girls’ mother, N.W., M.W., the Mayerson social worker,

and a Cincinnati Police detective who investigated the case testified. M.W., who was

nine years old when she testified, said that Williams had touched her in her “bad

spot” with his finger on more than one occasion, but claimed not to remember the

details such as whether Williams’s finger penetrated her vagina. N.W., who was ten

years old when she testified, said that Williams had inserted his finger into her

vagina. She said that she told M.W. what happened, and that M.W. had confided

that it had happened to her as well and told her that she should tell their mother.

The social worker from the Mayerson Center testified that both girls had reported to

her that Williams had digitally penetrated them.

       {¶7}    Williams testified at trial and maintained that he had not touched his

daughters inappropriately and that they were not telling the truth. He testified that

he did not sleep in the same bed as the girls when they spent the night. Williams’s

cousin and girlfriend also testified to the sleeping arrangements.        His mother

testified about the sleeping arrangements, and also testified about the examinations


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that Williams said he performed. She claimed that she had been sick and was

sleeping when the detective initially called, and did not understand what the

detective was asking about. She said that when she woke up and thought about it,

she called the detective back to correct her misstatements.

       {¶8}    The jury found Williams guilty on two counts of rape, and the trial

court sentenced him to two consecutive life sentences.

                Admission of Mayerson Center Interview Recording

       {¶9}    In his first assignment of error, Williams argues that the trial court

erred when it played the video recording of the interviews of N.W. and M.W. with the

social worker from the Mayerson Center. Williams first argues that the interviews

were testimonial as that term is defined in Crawford v. Washington, 541 U.S. 36, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004). We conclude that they were not.

       {¶10}   The Sixth Amendment to the United States Constitution states that

“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted

with the witnesses against him[.]”        Thus the Confrontation Clause bars the

“testimonial statements of a witness who did not appear at trial unless he was

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

examination.” Crawford at 53-54. But Crawford does not apply if the statements

are not testimonial. State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d

944, ¶ 59.

       {¶11}   Statements made to medical personnel for the purpose of diagnosis or

treatment are not testimonial under Crawford “because they are not even remotely

related to the evils that the Confrontation Clause was designed to avoid.” Muttart at

¶ 63. In determining whether a child's statements were made for the purpose of

medical diagnosis or treatment, the factors to be examined include (1) the nature of

the questioning—whether the interviewer asked leading or suggestive questions; (2)

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whether the child had a reason to lie; (3) whether the child understood the need to

tell the truth; (4) the age of the child at the time the statements were made; and (5)

whether the child's statements were consistent. State v. Lukacs, 188 Ohio App.3d

597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 7 (1st Dist.).

       {¶12}   In this case, the children’s mother testified that she took the girls to

the Mayerson Center “so they could advise me on what treatment the girls need.”

During the interview, the social worker did not use leading or suggestive questions.

The children did not have a reason to lie, there was no evidence that the children had

been coached, and the record demonstrates that they understood the importance of

telling the truth. The children were both school-aged and gave accounts that were

consistent with what they had reported to their mother and with how they testified at

trial, except that M.W. claimed she could not recall if Williams actually penetrated

her vagina with his finger. We conclude that the statements were made for the

purpose of medical diagnosis and treatment, and the trial court did not err in

admitting them. See State v. Ridder, 1st Dist. Hamilton No. C-150460, 2016-Ohio-

5195, ¶ 9. Therefore they were not testimonial, and Crawford does not apply.

       {¶13}   But even if the statements had been testimonial, Williams’s right to

confrontation would not have been violated because both children testified at trial.

The Crawford court noted that

       when the declarant appears for cross-examination at trial, the

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

       testimonial statements. It is therefore irrelevant that the reliability of

       some out-of-court statements “ ‘cannot be replicated, even if the

       declarant testifies to the same matters in court.’ ” The Clause does not

       bar admission of a statement so long as the declarant is present at trial

       to defend or explain it.


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(Citations omitted.) Crawford at fn. 9; see Lukacs at ¶ 15 (holding that the

Confrontation Clause was not implicated when the child-victim testified at trial).

       {¶14}   So, having established that admission of the video recording does not

violate the Confrontation Clause, the issue remains as to whether the children’s

statements in the video were hearsay to which no exception applies. Evid.R. 801(C)

defines hearsay 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.” Generally, hearsay statements are not admissible. See Evid.R. 802. But

there are exceptions to that rule. In particular, Evid.R. 803(4) permits the admission

of “[s]tatements made for the purpose of medical diagnosis and treatment and

describing medical history, or past or present symptoms, pain, or sensations, or the

inception of general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.”

       {¶15}   In this case, we have determined that the statements were made to

the social worker for the purpose of medical diagnosis or treatment. Therefore, while

the statements were hearsay, they were admissible under the exception contained in

Evid.R. 803(4). We overrule Williams’s first assignment of error.

                      Admission of Mother’s Account of What
                      Children Reported Was Not Prejudicial

       {¶16}   In the second assignment of error, Williams claims that the trial court

erred when it allowed the children’s mother to testify as to what they told her about

what had happened. The statements made to the mother were made months after

the events occurred, and when the children’s mother testified to what she had been

told, that evidence was offered for its truth. The statements to the mother were

hearsay to which no exception applied, and the trial court erred when it allowed the

statements into evidence. See Evid.R. 802.


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       {¶17}   But even though this testimony constituted inadmissible hearsay, the

jury was able to hear the same evidence through the interviews of the children at the

Mayerson Center, the testimony of the social worker, and the testimony of the

children at trial—all of which was properly admitted into evidence. Generally, where

other admissible substantive evidence mirrors improper hearsay, the error in

allowing the hearsay is deemed harmless, since it would not have changed the

outcome of the trial. State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964

N.E.2d 442, ¶ 43 (6th Dist.), citing State v. Byrd, 8th Dist. Cuyahoga No. 82145,

2003-Ohio-3958, ¶ 39; see State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,

848 N.E.2d 810, ¶ 82 (holding that the erroneous admission of evidence was not

prejudicial where other evidence demonstrating the same point was properly

admitted). The admission of the testimony of the children’s mother did not change

the outcome of the trial. We overrule Williams’s second assignment of error.

                      Sufficiency and Weight of the Evidence

       {¶18}   In his third and fourth assignments of error, Williams claims that his

convictions were based on insufficient evidence and were against the weight of the

evidence. In a challenge to the sufficiency of the evidence, the question 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 crimes beyond a

reasonable doubt.    State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. In reviewing a challenge to the weight of the evidence,

we must review the entire record, weigh the evidence, consider the credibility of the

witnesses, and determine whether the trier of fact clearly lost its way and thereby

created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485

N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.

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       {¶19}     Both N.W. and M.W. testified at trial.       The jury also heard their

accounts while watching their interviews with the social worker from the Mayerson

Center, who also testified. The lack of physical evidence or the fact that Williams

presented testimony to dispute that the attacks could have happened in the way the

girls described are insufficient to justifying reversal of the convictions. See State v.

Hunter, 144 Ohio App.3d 116, 120, 759 N.E.2d 809 (1st Dist.2001) (conviction for

rape of a child was based on sufficient evidence and not against the manifest weight

of the evidence even where there was no physical evidence of the attack and

defendant presented testimony to dispute the allegations).

       {¶20}     The weight to be given the evidence and the credibility of the

witnesses were primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967), paragraph one of the syllabus. We find that Williams’s

convictions were supported by both the sufficiency and the weight of the evidence. A

rational trier of fact could have found the elements of rape were proven beyond a

reasonable doubt. Further, a review of the entire record establishes that the jury did

not lose its way in finding Williams guilty. The third and fourth assignments of error

are overruled.

                                 Ineffective Assistance

       {¶21}     In his fifth assignment of error, Williams claims that counsel was

ineffective in failing to cross-examine the children and in failing to object to a

statement made by the prosecutor after the direct examination of the younger

daughter.

       {¶22}     To succeed on his ineffective-assistance claim, Williams must

establish that his trial counsel was deficient, and that, but for his counsel's errors, the

result of the proceedings would have been different. See Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court has previously

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said that “[t]he scope of cross-examination, however, falls within the ambit of trial

strategy. Debatable tactics do not render counsel's assistance ineffective. This is

particularly true in sex cases with minor victims where counsel may be wise to tread

lightly in questioning.” (Citations omitted.) State v. Johnson, 2016-Ohio-4934, 69

N.E.2d 143, ¶ 29 (1st Dist.).       In this case, counsel disclosed that Williams had

instructed him not to cross-examine the children. We cannot say that counsel was

ineffective for failing to do so.

       {¶23}    Counsel was also not ineffective for failing to object to a comment of

the prosecutor at the conclusion of M.W.’s direct examination.            During her

testimony, the child was obviously nervous, and she struggled throughout to

remember and answer questions while her father sat feet away staring at her. When

the questioning concluded, the prosecutor said “I’m very proud of you. I’ve known

you a long time.” While Williams characterizes this as bolstering the girl’s testimony,

that is not a fair reading of the statement.      Failing to object to this otherwise

innocuous statement, made to the child after she had clearly gone through a very

uncomfortable examination, was an appropriate decision for defense counsel to

make under the circumstances. The fifth assignment of error is overruled.

                                Prosecutorial Misconduct

       {¶24}    In his sixth assignment of error, Williams claims that the statement

made by the prosecutor to M.W., referenced in the preceding paragraph, constituted

prosecutorial misconduct. But the Ohio Supreme Court has held that “[i]solated

comments by a prosecutor are not to be taken out of context and given their most

damaging meaning.” State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996),

citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431

(1974). Considering the context of that comment and its isolated character, we hold



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that it did not rise to the level of prejudicial misconduct. We overrule Williams’s

sixth assignment of error.

                                  Cumulative Error

       {¶25}    In his seventh assignment of error, Williams claims that while no

single error alleged may amount to reversible error, the cumulative effect of the

errors made the trial fundamentally unfair. Under the doctrine of cumulative error,

a conviction may be reversed if the cumulative effect of errors deemed separately

harmless is to deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d 191,

509 N.E.2d 1256 (1987), paragraph two of the syllabus. But, absent the admission of

the mother’s account of what her children had told her, Williams has demonstrated

no error below. And we have established that any error in the admission of the

mother’s account of what her children had told her was harmless. We overrule

Williams’s seventh assignment of error.

                                 Sentencing Claims

       {¶26}    In his eighth assignment of error, Williams claims that the record

does not support the sentences imposed by the court. Williams concedes that the

sentences were within the statutory ranges, but argues that the “record does not

support the sentencing court’s findings that the consecutive life sentences were

appropriate.”

       {¶27}    R.C. 2929.14(C)(4) requires the trial court to make certain findings

before imposing consecutive sentences. First, the trial court must find that

consecutive sentences are necessary either to protect the public from future crime or

to punish the offender. The court must then find the imposition of consecutive

sentences is not disproportionate to the seriousness of the offender's conduct and the

danger he poses to the public. Finally, the court must find one of the following



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       (a) the offender committed one or more of the multiple offenses while

       the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

       Revised Code, or was under post-release control for a prior offense;

       (b) at least two of the multiple offenses were committed as part of one

       or more courses of conduct, and the harm caused by two or more of

       the multiple offenses so committed was so great or unusual that no

       single prison term for any of the offenses committed as part of any of

       the courses of conduct adequately reflects the seriousness of the

       offender's conduct; or

       (c)   the offender's history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future

       crime by the offender.

R.C. 2929.14(C)(4)(a)-(c).

       {¶28}    In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, syllabus, the Ohio Supreme Court held that when a trial court imposes

consecutive sentences, it must not only announce the requisite consecutive-

sentencing findings at the sentencing hearing, but it must also incorporate those

findings into the sentencing entry. The trial court is not required to provide a “word-

for-word recitation of the language in the statute” or to provide reasons to support

the findings, as long as the reviewing court can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support

the findings. Id. at ¶ 29.

       {¶29}    The record reflects that the trial court complied with Bonnell. It

made the required findings for consecutive sentences during the sentencing hearing

and incorporated those findings into the sentencing entry. The trial court found that


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consecutive sentences were necessary to protect the public and to punish Williams,

and were not disproportionate to the seriousness of Williams’s conduct and the

danger that Williams posed to the public. The trial court also found that the two

offenses were committed as part of one or more courses of conduct, and the harm

caused by the two offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses of

conduct adequately reflects the seriousness of Williams’s conduct. The trial court

was not required to make further findings, and these findings were supported by the

record. See State v. Ruff, 1st Dist. Hamilton Nos. C-160385 and C-160386, 2017-

Ohio-1430, ¶ 24, citing State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-

7510, ¶ 32. We overrule Williams’s eighth assignment of error.

       {¶30}   In his ninth assignment of error, Williams claims that the imposition

of two, consecutive life sentences resulted in a denial of his right to due process and

constituted cruel and unusual punishment. The Eighth Amendment “ ‘does not

require strict proportionality between crime and sentence. Rather, it forbids only

extreme sentences that are grossly disproportionate to the crime.’ ”          State v.

Weitbrecht, 86 Ohio St.3d 368, 371-372, 715 N.E.2d 167 (1999), quoting Harmelin v.

Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Cases in which

cruel and unusual punishments have been found are “limited to those involving

sanctions which under the circumstances would be considered shocking to any

reasonable person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334

(1964). To violate the prohibition against cruel and unusual punishment, the penalty

must be “so greatly disproportionate to the offense as to shock the sense of justice of

the community.” Id.

       {¶31}   The life sentences imposed here were mandated by statute, a statute

that Williams did not challenge. See State v. McConnell, 2d Dist. Montgomery No.


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19993, 2004-Ohio-4263, ¶ 139, citing R.C. 2907.02(B).               “Severe, mandatory

penalties may be cruel, but they are not unusual in the constitutional sense, having

been employed in various forms throughout our Nation's history.” Harmelin at 994-

995. A sentence that falls within the terms of a valid statute generally cannot amount

to cruel and unusual punishment. State v. Hairston, 118 Ohio St.3d 289, 2008-

Ohio-2338, 888 N.E.2d 1073, ¶ 21, citing McDougle at 69, 203 N.E.2d 334. While

Williams argued that the “consecutive life terms on the two rapes violated Due

Process and the prohibition against cruel and unusual punishment,” the Eighth

Amendment proportionality review does not apply to consecutive sentences.

Hairston at ¶ 20.

       {¶32}   The fact that Williams turned down a plea offer that would have

resulted in a six-year prison sentence does not change this result.           On several

occasions before the trial, Williams was given the opportunity to plead to one count

of gross sexual imposition. The lower proposed sentence was conditioned upon

Williams agreeing to plead guilty to one, lesser charge. Williams repeatedly refused

to enter such a plea, and was instead found guilty of two counts of rape of a child

under the age of ten, for which life in prison was the sentence.            We overrule

Williams’s ninth assignment of error.

                                      Conclusion

       {¶33}   Having considered and overruled all nine assignments of error, we

affirm the judgment of the trial court.

                                                                     Judgment affirmed.

ZAYAS and MYERS, JJ., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.


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