[Cite as State v. Weber, 2013-Ohio-3172.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :            C.A. CASE NO.        25508

v.                                                  :            T.C. NO.   11CR3379

ROBERT WEBER                                        :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                         Rendered on the     19th       day of      July    , 2013.

                                            ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

WILLIAM GALLAGHER, Atty. Reg. No. 0064683, The Citadel, 114 E. 8th Street,
Cincinnati, Ohio 45202
       Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

                 {¶ 1} This matter is before the Court on the Notice of Appeal of Robert
               Weber,

filed November 30, 2012. Weber appeals from his October 31, 2012 Judgment Entry of

Conviction on one count of rape (less than 13 years of age), in violation of R.C.

2907.02(A)(1)(b); one count of rape (less than 10 years of age), in violation of R.C.

2907.02(A)(1)(b); and one count of rape (less than 10 years of age), in violation of R.C.

2907.02(A)(1)(b), all felonies of the first degree.

       {¶ 2}    Weber was initially indicted, on January 30, 2012, on three counts of rape

(less than 13 years of age), and one count of gross sexual imposition; he was subsequently

indicted, on June 14, 2012, on two additional counts of rape (less than 10 years of age).

The matter was tried to a jury, and at the conclusion of the State’s evidence, following

Weber’s motion for an acquittal, the trial court dismissed two rape charges and the gross

sexual imposition charge from the initial indictment. Following guilty verdicts on the

remaining counts, the trial court sentenced Weber to 10 years to life on the rape charge in the

initial indictment; to life imprisonment with the possibility of parole in 10 years on count

one in the second indictment; and to 15 years to life on count two of the second indictment,

all to be served consecutively, for an aggregate term of 25 years to life. The court also

designated Weber a Tier III sex offender.

       {¶ 3}    The victim herein is Weber’s step-daughter, A.H. At trial, A.H. testified that

her date of birth is June 10, 1999, and that she is 13 years old. She testified that when she

was seven years old and living in Westlake, Ohio, with her mother and Weber, she and

Weber got into a “tickle fight,” and “while he was tickling me, he went down to my private

area and then moved his hand back up. And I put his hand back because it - - it tickled.

And he said I shouldn’t do that. And when I asked why he said that he’d tell me another
                                                                                            3

day if I really wanted to know.” A.H. stated that her “private area” was her genital region.

A .H. stated, “a few days after that,” Weber “brought it up again,” and they discussed “what

sex was and what types of sex there were and the dangers there were and the diseases you

could get from it.” A.H. stated that Weber told her to “keep it a secret and not to tell

anybody.” She stated that when Weber first spoke to her about sex, he did not touch her.

She stated that it was “a continuing discussion.”

       {¶ 4}    According to A.H., when she “was 8, around there, * * * he asked me if I

wanted to learn more. * * * And when I said yes, he said that I would have to not tell

anybody. So I agreed not to tell anybody again. And after that he started touching me.”

A.H. stated that one day she “took off my clothes and he showed me the parts that I had,” by

means of a mirror, and “he showed me the parts that - - that he had.” According to A.H.,

one “of the times he brought up whether I wanted to touch him or not or, you know, whether

I wanted to learn more or try something new.” A.H. stated she touched Weber’s penis with

her hand “after I was 8,” but before she was 10. She stated that she moved her hand back

and forth.

       {¶ 5}    A.H. further testified that she “was around 9 when [Weber] asked me again

if I wanted to learn something new. And he said that it had to be confidential again and that

I couldn’t tell anybody. And I agreed to that. And that’s when he started the oral sex part of

the stuff that he did.” A.H. stated Weber “was touching me in the beginning, but later, I

was touching him.” A.H. stated that Weber would “lick” her clitoris. She stated that she

later “had to suck on his penis.” According to A.H., Weber would ejaculate onto his

stomach, but “he had me start swallowing it after I was 9. I’d at least turned 10.”
[Cite as State v. Weber, 2013-Ohio-3172.]
        {¶ 6}      According to A.H., “when I turned 11 he - -he again asked me if I wanted to

learn anything else and that it would be confidential and I said yes. And he started having

vaginal sex with me.” When asked if Weber used a condom, A.H. stated that he “tried to

use one the first time, but I said that it hurt so * * * he didn’t use one all of the other times

that we had vaginal sex * * *.” A.H. stated that Weber “would have me get off of him

before he ejaculated and then he’d ejaculate onto his stomach or shirt.”

        {¶ 7}     A.H. stated that she had vaginal sex with Weber on the evening of July 13,

2011, on the couch in their game room, while her mother was at the “fitness center.” She

stated that she lived in Montgomery County at the time. A.H. stated that she disclosed the

abuse to her mother on July 14, 2011, after her mother found A.H. and Weber sleeping on

the couch in the game room that morning. A.H. stated that she initially “told her that

nothing was happening. And * * * she asked me again and I told her all about what had

been happening since I was 7. But I wrote it down because I couldn’t tell her because it just

- - I didn’t know how to so I wrote it.” A.H. stated that her mother called the police and that

she was taken to the hospital.

        {¶ 8}     When asked, “was there anything that led up to the vaginal sex” on July 13,

2011, A.H. replied, “I don’t remember,” and when asked, do “you remember anything about

the days prior whether you had vaginal sex or not,” she again replied, “I don’t remember.”

        {¶ 9}      The following exchange occurred:

                 Q. * * * When you were younger, you were talking about the

        Defendant touching your body in different places. Did he ever touch your

        chest area?

                 A. Yes. But that didn’t happen until I was around 10.
                                                                                            5

               Q. * * * and what changed with your body at that point?

               A. I started to grow there. So he - - he could touch - -

               Q. Would he ever leave any marks when he would touch that area?

               A. Yes. One point he - - he did leave marks and my mom saw then.

         And I - - I said that it was nothing. I told her that I’d run into a wall.

               ***

               Q. * * * When you were doing these things with the Defendant, did

       you ever enjoy it?

               A. After a while, yes.

               Q. When you finally told someone about this, did you feel you had

       betrayed him?

               A. Yes. Because I told him that I would keep it as a promise and

       that I wouldn’t tell anybody. And even though he’s done these things to me,

       I still felt that I’d betrayed him by telling somebody.

       {¶ 10} Mary Elizabeth Lacher testified that she is employed at Dayton Children’s

Emergency Room, and the State tendered her as an expert in pediatric emergency room

medicine. She stated that she examined A.H. on July 14, 2011, and that as a result she

found that A.H.’s “hymen is not intact inferiorly,” and that there was no active bleeding.

Lacher stated that the hymen is “a round thin membrane, that is normally, in a non-sexually

active person, is intact.” Lacher stated that the condition of A.H.’s hymen is consistent with

sexual activity.

       {¶ 11} A.H.’s mother, M.S., testified that she and Weber were married on
                                                                                             6

September 17, 2007, and that she lived with him for two years prior to their marriage. She

stated that after briefly residing in Georgia, they moved to Kettering, Ohio, “the summer that

[A.H.] turned six.” From Kettering, M.S. stated that her family moved to Westlake, a

suburb of Cleveland in Cuyahoga County, where they lived from sometime in 2006 to June,

2008, at which time they moved to Franklin County, where they resided until June, 2009.

M.S. testified that from Franklin County, they moved to Miami Township, in Montgomery

County, where they resided until July 14, 2011.

       {¶ 12} Brenda Miceli testified that she is a licensed psychologist in private practice,

and that she has been qualified as an expert in child psychology and child sexual abuse.

When the state requested that Miceli “be declared an expert in the dynamics of child sexual

abuse,” defense counsel did not object, nor did he object at all in the course of her direct

testimony, which was addressed to behaviors that children who have disclosed sexual abuse

may or may not exhibit. She discussed “internalizing,” “externalizing” and “sexualized

behaviors.” Miceli also described the “grooming process” that typically occurs, and that

allows an abuser to determine if a child is likely to reveal the abuse. On cross-examination,

Miceli stated, “I think I need to be clear here that my job is never to determine whether or

not a child is telling the truth.” She stated that her role at trial was not to opine on A.H.’s

credibility. On redirect examination, Miceli stated that she was not asked to determine

whether A.H. was telling the truth about the abuse. When asked why she did not speak to

A.H. about the allegations, Miceli replied, “Because my role is not her therapist or to

determine whether or not abuse has occurred.”

       {¶ 13} After Miceli testified, in the absence of the jury, the State moved the court to
                                                                                           7

amend count one of the second indictment as follows: “Instead of the county of

Montgomery, * * * it would read in the county of Cuyahoga, as part of continuing course of

conduct that ultimately ended in Montgomery County.” The State also moved the court to

amend count two of the second indictment “to say instead of the county of Montgomery, the

county of Franklin, and then the similar language of as part of a continuing course of

conduct that * * * resulted in conduct in Montgomery.” The State directed the court’s

attention to State v. Hensley, 2d Dist. Montgomery No. 11410, 1990 WL 31840 (March 19,

1990), reversed, in part, on other grounds, 59 Ohio St.3d 136, 571 N.E.2d 711 (1991)

(holding that Hensley was not entitled to a separate trial on one count of an indictment

alleging rape of a child in Clark County, unlike the other 14 counts in the indictment which

allegedly took place in Montgomery County, and noting that it “is well established that a

series of sex offenses against children under thirteen years old does constitute a ‘course of

criminal conduct’ for purposes of R.C. 2901.12(H))”; and State v. Williams, 53 Ohio App.3d

1, 557 N.E. 2d 818 (10th Dist. 1988) (citing R.C. 2941.08(F), which sets forth certain

defects that do not render an indictment invalid, and noting that since “the [12 count]

indictment alleged once that an offense had occurred in Franklin County, the indictment was

sufficient. Therefore, counts two through twelve should not have been dismissed for lack of

venue.”).

       {¶ 14}     Weber objected as follows:

                * * * First, this begs the question the indictment (sic) that came June

       14th, 2012, clearly and unequivocally states Montgomery County.            This

       doesn’t allege a course of conduct. It doesn’t allege Franklin County. It
                                                                                     8

doesn’t allege Cuyahoga County. It specifically says Montgomery County.

So the question is what changed between - - the first case was filed January

30th of 2012. What changed in the Prosecutor’s Office to make them allege,

when they presented this case to the grand jury, * * * that the two crimes

alleged * * * in the B indictment occurred here. Now I don’t know if there

was something presented to the grand - - there must have been something

presented to the grand jury to make the grand jury believe that. Whether or

not that information was false or inconsistent, it would certainly, I think, go to

a particularized need to review that testimony unless it’s just plain sloppy. I

don’t know the answer to that, because I didn’t indict the case. But, clearly,

there was no new evidence that was produced, I don’t believe. At least there

was no new evidence from discovery that was provided to me. So it just

appears to me, Your Honor, that it’s paintly (sic) unfair, a, to allege a course

of conduct at this point, especially when the subsequent indictment is for

years prior to the indictment that is - to the counts alleged in the A

indictment. I, for the life of me, don’t understand the variance. And I would

submit, Your Honor, that the State’s request, a, to amend the indictment, be

denied. And b, that if the Court is so inclined to allow the amendment, to find

that there’s no course of conduct, under 2109.12, for purposes of venue. I

mean it’s reverse course of conduct it seems to me, if there is one at all.

{¶ 15} The court responded as follows:

       Well, I was looking at the Hensley case, because I was intimately
                                                                                   9

involved with the filing of the charges of that particular case when I worked

in the Montgomery County Prosecutor’s Office.           So I just am giving

disclosure with that. I had been concerned about the issue of venue myself

and did some research. And I believe that 2901.12(h), that I have to follow

it, because that statute reads when an offender is part of a course of conduct -

- course of criminal conduct, commits offenses in different jurisdictions, the

offender may be tried for all of those offenses in any jurisdiction in which one

of those occurrences or any element of one of those offenses occurred without

limitation on the evidence that may be used to establish the course of

conduct, any of the following is prima facie evidence of a course of criminal

conduct.

       One, the offenses involve the same victim or victims or the same type

or of - -or from the same group.

       Two is not applicable, because that deals with the employment, but it

could be also, because it says the offenses were committed by the offender in

the offender’s same employment or same capacity or relationship to the other.

 He was stepfather in all of these situations. Whether they were married or

not, he was in that position. The offenses were committed as part of the

same transaction or chain of events, or in furtherance of the same purpose or

objective. Maybe.

       The offenses were committed in furtherance of the same conspiracy or

must - - the offenses involve the same or a similar modus operandi; or,
                                                                                             10

                 Six, the offenses were committed along the offender’s line of travel in

        the state, regardless of the offender’s point of origin or destination.

                 I think that there is sufficient evidence to allow that, although I do

        believe that it is kind of sloppy to wait till the last minute to do that, but the

        law allows it. So I’m going to overrule your objection.

        {¶ 16} After the court overruled Weber’s objection to the amendment, the State

indicated as follows:

                 * * * Just for the record, I would note that the Defendant was aware of

        the allegations of acts in these other counts. That was part of the discovery

        that we did supply to defense. So in terms of any change as far as the county

        and stuff, they - - we did provide discovery as to where the different parties

        lived and how old the child was.          For purposes of at least determining

        prejudice - - and this is just for the record. * * *

        {¶ 17} After the State’s exhibits were admitted, defense counsel moved the court

“to find the evidence insufficient to allow this matter to go to the jury on all counts

contained in both indictments.” The court overruled the motion as to Count I of the first

indictment and Counts I and II of the second indictment, and it sustained the motion as to

Counts II, III, and IV in the first indictment.

        {¶ 18} Weber testified, and he denied A.H.’s allegations.

        {¶ 19}     Weber asserts five assignments of error herein. We will first address his

third assigned error for ease of analysis. It is as follows:

                 A TRIAL COURT CANNOT PERMIT AN INDICTMENT TO BE
                                                                                           11

       ENLARGED           BY       AMENDMENT.             IT      CREATES         AN

       UNCONSTITUTIONAL RISK A DEFENDANT WILL BE CONVICTED

       OF A CHARGE NOT PRESENTED TO THE GRAND JURY. THE TRIAL

       COURT ERRED BY ALLOWING THE STATE TO AMEND THE

       INDICTMENT AFTER THE TRIAL IN VIOLATION OF CRIMINAL

       RULE 7, AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION

       AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES

       CONSTITUTION.

       {¶ 20} Weber asserts that while “the amendment in this case did not change the

identity or name of the offenses it did expand the charges to a different jurisdiction and

creates a risk Weber was convicted on evidence not presented to the Grand Jury.” Weber

relies upon State v. Vitale, 96 Ohio App.3d 695, 645 N.E.2d 1277 (8th Dist. 1994).

       {¶ 21}    The State responds that a “trial court is permitted to amend an indictment

by inserting the county were the offense was committed as long as the accused was neither

misled or prejudiced in his defense by the defect in the indictment,” in reliance upon

Williams, supra. The State further asserts that “Weber was not misled by the amendment

because the State had provided discovery regarding the different places where the parties

lived and the age of the child as it pertained to the various allegations.” Finally, the State

asserts that “Weber suffered no prejudice to his defense as a result of the amendment to

change the name of the county where one of the rapes was alleged to have occurred, because

Weber’s defense was a complete denial of guilt, i.e., that A.H. lied.        Because Weber

claimed the sexual abuse never occurred, his defense was in no way prejudiced by the
                                                                                          12

amendment * * *.”

       {¶ 22}     We initially note that the trial court relied upon R.C. 2901.12, concluding

that “sufficient evidence” existed to amend the indictment. R.C. 2901.12 governs venue,

and section (H), cited by the trial court, provides in part as follows:

                When an offender, as part of a course of criminal conduct, commits

       offenses in different jurisdictions, the offender may be tried for all of those

       offenses in any jurisdiction in which one of those offenses or any element of

       one of those offenses occurred. Without limitation on the evidence that may

       be used to establish the course of criminal conduct, any of the following is

       prima facie evidence of a course of criminal conduct:

                (1) the offenses involved the same victim * * * .

       {¶ 23} The amendment of an indictment is governed by Crim.R.7(D), which

provides:

                The court may at any time before, during, or after a trial amend the

       indictment * * * , in respect to any defect, imperfection, or omission in form

       or substance, or of any variance with the evidence, provided no change is

       made in the name or identity of the crime charged. If any amendment is

       made to the substance of the indictment, * * * or to cure a variance between

       the indictment, * * * and the proof, the defendant is entitled to a discharge of

       the jury on the defendant’s motion, if a jury has been impaneled, and to a

       reasonable continuance, unless it appears from the whole proceedings that the

       defendant has not been misled or prejudiced by the defect or variance in
                                                                                  13

respect to which the amendment is made, or that the defendant’s rights will

be fully protected by proceeding with the trial, or by a postponement thereof

to a later day with the same or another jury. * * *.

{¶ 24} As this Court has previously noted:

        Crim.R. 7(D) embodies the protections guaranteed by Section 10,

Article I of the Ohio Constitution, which: “guarantees the accused that the

essential facts constituting the offense for which he is tried will be found in

the indictment of the grand jury. Where one of the vital elements identifying

the crime is omitted from the indictment, it is defective and cannot be cured

by the court as such a procedure would permit the court to convict the

accused on a charge essentially different from that found by the grand jury.”

State v. Strozier (Oct. 5, 1994), Montgomery App. No. 14021, at * 2, quoting

State v. Headley (1983), 6 Ohio St.3d 475, 478-79, 453 N.E.2d 716. An

amendment that changes the name or identity of the offense charged

constitutes reversible error, regardless of whether the defendant can show

prejudice. See id. For amendments that do not change the name or identity

of the offense charged, the defendant is entitled to a continuance “unless it

clearly appears from the whole of the proceedings that the defendant has not

been misled or prejudiced by the defect or variance in respect to which the

amendment is made.” Id, quoting Crim.R. 7(D). State v. Honeycutt, 2d Dist.

Montgomery No. 19004, 2002-Ohio-3490, 2002 WL 1438648 at * 2-3.

{¶ 25} Honeycutt was indicted on two counts of menacing by stalking and a
                                                                                          14

violation of a protection order, and his indictment was amended on the second day of trial.

The indictment initially referred to events “on or about September 11, 2000,” and it was

amended to refer to events “between April, 1999 and September 11, 2000.” Like Weber,

Honeycutt relied upon Vitale to assert that the indictment was improperly amended. This

Court noted as follows:

              The amendment in this case did not change the name or identity of the

       crime charged. Honeycutt was charged with menacing by stalking, and the

       amendment to the indictment did not change that fact.            However, the

       amendment did change the date of the alleged pattern of conduct for which

       Honeycutt was charged.        Honeycutt cites State v. Vitale * * * for the

       proposition that a change in the date of the offense is a change to the identity

       of the crime. In Vitale, the defendant had been charged with committing a

       crime on June 14, 1991.        The indictment was subsequently amended to

       include actions between June 14, 1991 and June 21, 1991. The court in

       Vitale concluded that the amendment was a change to the identity of the

       crime because the indictment was changed to include completely different

       crimes that occurred at a different time and a different place. See id. at

       700-01, 645 N.E.2d 1277.

              We believe that the instant case is distinguishable from Vitale in two

       key respects.      First, Honeycutt was charged with a pattern of conduct. 1


          1
         R.C. 2903.211 prohibits menacing by stalking and provides, “No person
  by engaging in a pattern of conduct shall knowingly cause another person to
  believe that the offender will cause physical harm to the other person or cause
                                                                                            15

       Amending the indictment to include incidents occurring between April of

       1999 and September 11, 2000 did not change the fact that he was charged

       with a pattern of conduct. The amendment in Vitale added separate crimes

       to the indictment for which the defendant had not been charged. See id.

       Second, the bill of particulars in this case put Honeycutt on notice that the

       state would be including incidents occurring prior to September 11, 2000.

       The bill of particulars alleged that the September 11, 2000 phone call “and

       the events of the prior conviction” constituted a pattern of conduct under R.C.

       2903.211. In Vitale, the bill of particulars referred only to June 14, 1991.

       See id. at 700, 645 N.E.2d 1277.          Furthermore, Vitale stands for the

       proposition that the state “should be restricted in its proof to the indictment

       and the particulars as set forth in the bill.” Id., citing State v. Miller (1989),

       63 Ohio App.3d 479, 485-86, 579 N.E.2d 276. The state in this case did

       restrict its proof to the indictment and the bill of particulars. Therefore, we

       conclude that the amendment did not change the identity of the crime.

                While Honeycutt may have been entitled to a reasonable continuance

       based on the amendment, he failed to request one. Therefore, we will not

       consider whether he was entitled to it. Honeycutt, 2002 WL 1438648, at * 3.

       {¶ 26}    We further find Kiriazis v. Polito, 410 Fed.Appx. 958 (6th Cir. 2011) to be

instructive. Therein, Kiriazis, who was charged with operating a brothel, also relied upon


  mental distress to the other person.”
                                                                                           16

Vitale, like Weber, to assert that the introduction of evidence of a location distinct from

that in the bill of particulars amounted to a constructive amendment of the indictment. Id.,

962.   The Sixth Circuit determined, “Unlike Vitale, this is not a case involving a

constructive amendment to the indictment - for which prejudice is presumed - but a case

involving a variance - for which prejudice must be proved.” Id. According to the Sixth

Circuit:

                Location is not an element of operating a brothel * * * . Accordingly,

       the fact that the evidence at trial included more than just the West 95th Street

       location was a variance, and, to prevail, Kiriazis must demonstrate prejudice.

       See [Geboy v. Brigano, 489 F.3d 752 (6th Cir. 2007)]; United States v. Hart,

       70 F.3d 854, 860 (6th Cir. 1995)(citation and internal quotation marks

       omitted)(“[A] variance is immaterial if it does not impair the defendant’s

       ability to defend himself through failing to identify the nature of the charge.”)

       * * * . Id., 963.

       {¶ 27}    As this Court has previously noted, “‘Whether an amendment changes the

name or identity of the crime charged is a matter of law.’ * * * Hence, we review this

question de novo.” State v. Frazier, 2d Dist. Clark No. 2008 CA 118, 2010-Ohio-1507, ¶

22.

       {¶ 28} “If the amendment does not change the name or identity of the crime

charged, then we apply an abuse of discretion standard to review the trial court’s decision to

allow a Crim.R. 7(D) amendment.” Id., ¶ 23. As the Supreme Court of Ohio determined:

                “Abuse of discretion” has been defined as an attitude that is
                                                                                          17

        unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

        to be expected that most instances of abuse of discretion will result in

        decisions that are simply unreasonable, rather than decisions that are

        unconscionable or arbitrary.

                 A decision is unreasonable if there is no sound reasoning process that

        would support that decision. It is not enough that the reviewing court, were

        it deciding the issue de novo, would not have found that reasoning process to

        be persuasive, perhaps in view of countervailing reasoning processes that

        would support a contrary result.      AAAA Enterprises, Inc. v. River Place

        Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

        {¶ 29}    Weber concedes that the amendment to the indictment did not change the

name or identity of the rape offenses set forth in the second indictment, and we conclude

that the matter herein is distinct from Vitale. We further conclude, as in Kiriazis, that

since the amended indictment conforms to the evidence adduced at trial regarding the

location of the rape in Cuyahoga County, as opposed to Montgomery County, the trial court

did not abuse its discretion in allowing the State to amend the indictment with respect to “a

variance with the evidence.” Crim.R. 7(D). In other words, prejudice is not demonstrated.

 Further, the amended language regarding “a course of criminal conduct,” pursuant to R.C.

2901.12(H), relates to venue and did not prejudice Weber, as he was charged with a series of

sex offenses against the same victim. Finally, as in Honeycutt, while Weber may have been

entitled to a continuance, he did not request one. There being no merit to Weber’s third

assigned error, it is overruled.
                                                                                          18

       {¶ 30} We will next consider Weber’s first assigned error. It is as follows:

       A CONVICTION BASED UPON INSUFFICIENT EVIDENCE IS A VIOLATION

OF DUE PROCESS OF LAW. THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH

THE OFFENSE ALLEGED IN COUNT ONE OF THE “B” INDICTMENT OCCURRED

IN CUYAHOGA COUNTY BEYOND A REASONABLE DOUBT.

       {¶ 31} According to Weber, no “evidence [was] ever presented to establish in

which county West Lake is situated. Calling it a ‘suburb of Cleveland’ without further

information does not provide the proof necessary to establish this essential element of an

offense beyond a reasonable doubt.” The State responds that since “at least one of the

crimes committed as part of that course of conduct occurred in Montgomery County, venue

for prosecution of all crimes committed was proper in Montgomery County.”

       {¶ 32} “Venue is not a material element of any offense charged. The elements of

the offense charged and the venue of the matter are separate and distinct. * * * Yet, in all

criminal prosecutions, venue is a fact that must be proved at trial unless waived. * * *.”

State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1342 (1981). Crim.R. 18 provides that

“[t]he venue of a criminal case shall be as provided by law.” See R.C. 2901.12(H), above.

       {¶ 33}    Weber did not assert in the trial court that the State failed to prove venue

for count one of the second indictment, “and he cannot raise that issue for the first time on

appeal.” State v. Bridgeman, 2d Dist. Champaign No. 2010 CA 16, 2011-Ohio-2680, ¶ 9.

“‘However, failure to prove venue is a defect affecting a substantial right and is subject to

review under the plain error doctrine.’” Id.

       {¶ 34}    Count one of the second indictment was amended to allege that A.H. was
                                                                                         19

raped in Cuyahoga County between the dates of June 1, 2006 to June 30, 2008. A.H. stated

that Weber began engaging in oral sex with her when she was “around 9," and the following

exchange occurred in M.S.’s direct testimony:

                Q. * * * I want to make sure I’m clear on your actual move dates here.

        When you were living in West Lake, that was in Cuyahoga County, is that

       right? It’s around Cleveland?

                A. Yes.

                Q. Okay. And that was sometime 2006 to around June 2008, is that

       right?

                A. Yes.

       {¶ 35}    Since evidence was adduced that one of the indicted offenses occurred in

Cuyahoga County as part of a course of criminal conduct, Montgomery County, where

another indicted offense occurred, was a proper venue for count one of the second

indictment, pursuant to R.C. 2901.12.     Plain error is not demonstrated, and Weber’s first

assigned error is overruled.

       {¶ 36} Weber’s second assigned error is as follows:

                TRIAL COUNSEL HAS A LEGAL OBLIGATION TO ACT AS AN

       EFFECTIVE        REPRESENTATIVE          FOR     AN     ACCUSED       WHICH

       INCLUDES RAISING ISSUES OF VENUE WHEN THE EVIDENCE

       FAILS TO ESTABLISH THE ELEMENT BEYOND A REASONABLE

       DOUBT.        WEBER’S CONSTITUTIONAL RIGHT TO EFFECTIVE

       REPRESENTATION OF COUNSEL WAS VIOLATED WHEN TRIAL
                                                                                           20

       COUNSEL FAILED TO MOVE TO DISMISS A COUNT OF THE

       INDICTMENT FOR FAILING TO PROVE VENUE.

       {¶ 37} Weber asserts that defense counsel was ineffective for failing to argue in his

Crim.R. 29 motion that the State failed to establish venue for count one of the second

indictment.

       {¶ 38}    As this Court has previously noted:

                “We review the alleged instances of ineffective assistance of trial

       counsel under the two prong analysis set forth in Strickland v. Washington

       (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the

       Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * * .

       Pursuant to those cases, trial counsel is entitled to a strong presumption that

       his or her conduct falls within the wide range of reasonable assistance.

       Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective

       assistance of counsel, it must be demonstrated that trial counsel’s conduct fell

       below an objective standard of reasonableness and that his errors were serious

       enough to create a reasonable probability that, but for the errors, the result of

       the trial would have been different. Id. Hindsight is not permitted to distort

       the assessment of what was reasonable in light of counsel’s perspective at the

       time, and a debatable decision concerning trial strategy cannot form the basis

       of a finding of ineffective assistance of counsel.” (Internal citation omitted).

       State v. Mitchell, 2d Dist. No. 21957, 2008-Ohio-493, ¶ 31.

       {¶ 39} As discussed above, M.S. specifically testified that the family lived in
                                                                                             21

Cuyahoga County, and venue in Montgomery County for count one of the second indictment

was properly established, pursuant to R.C. 2901.12(H). Ineffective assistance of counsel

resulting in prejudice to Weber is not demonstrated, and his second assigned error is

overruled.

       {¶ 40} Weber’s fourth assigned error is as follows:

                THE TRIAL COURT IS ULTIMATELY RESPONSIBLE FOR

       SAFEGUARDING THE FAIRNESS OF A CRIMINAL TRIAL. WHERE

       THE TESTIMONY OF AN EXPERT SERVES ONLY TO VOUCH FOR

       THE CREDIBILITY OF THE COMPLAINING WITNESS IT VIOLATES

       THE DEFENDANT’S RIGHT TO A FAIR TRIAL. THE ADMISSION OF

       THE CHILD PSYCHOLOGIST TESTIMONY VIOLATED WEBER’S

       RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO A FAIR

       TRIAL.

       {¶ 41}     Evid. R. 702 governs the admissibility of expert testimony. It provides:

                A witness may testify as an expert if all of the following apply:

                (A) The witness’ testimony either relates to matters beyond the

       knowledge or experience possessed by lay persons or dispels a misconception

       common among lay persons;

                (B) The witness is qualified as an expert by specialized knowledge,

       skill, experience, training, or education regarding the subject matter of the

       testimony;

                (C) The witness’ testimony is based on reliable scientific, technical, or
                                                                                           22

       other specialized information. * * *

       {¶ 42} “[T]he Ohio Supreme Court has found that testimony from a psychologist on

the behavioral characteristics of sexually abused children is admissible, see State v. Stowers

(1998), 81 Ohio St.3d 260, 262, 690 N.E.2d 881, and so have we. [State v.Bell, 176 Ohio

App.3d 378, 2008-Ohio-2578, 891 N.E.2d 1280 (2d Dist.)].” State v. Rosas, 2d Dist.

Montgomery No. 22424, 2009-Ohio-1404, ¶ 41.          “What an expert may not do is offer a

direct opinion on whether a child is telling the truth. State v. Boston (1989), 46 Ohio St.3d

108, 545 N.E.2d 1220.” Id., ¶ 42.     We review the admission of expert testimony under an

abuse of discretion standard of review. See Bell. In Bell, as here, Dr. Miceli was retained

by the State “to testify regarding the wide range of behaviors that sexually abused children

may exhibit, including internalizing behaviors, externalizing behaviors, and sexualized

behaviors.” Miceli did not opine on whether the victims were sexually abused by the

defendant, and this Court concluded that the trial court did not abuse its discretion in

admitting the testimony as follows:

               Dr. Miceli simply offered her opinions regarding the wide range of

       behavioral characteristics displayed by minor victims of sexual abuse. The

       law clearly permits this kind of expert testimony, and Dr. Miceli did not go

       beyond permissible boundaries and opine whether these children were in fact

       abused by Bell.      A thorough review of Dr. Miceli’s expert testimony

       establishes that she possessed specialized knowledge that could aid a trier of

       fact in assessing whether the children actually suffered sexual abuse. Bell, ¶

       57.
                                                                                         23

        {¶ 43} As in Bell, we conclude that the trial court did not abuse its discretion in

admitting Miceli’s expert testimony. Weber’s fourth assigned error is overruled.

        {¶ 44} Weber’s fifth assigned error is as follows:

        TRIAL COUNSEL’S FAILURE TO OBJECT TO THE TESTIMONY OF THE

CHILD PSYCHOLOGIST RESULTED IN A VIOLATION OF WEBER’S RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE OHIO STATE

CONSTITUTION AND THE CONSTITUTION OF THE UNITED STATES.

        {¶ 45} Weber asserts, “no strategy exists which justifies the failure to respond to

inadmissible vouching evidence.” Having determined that Miceli’s testimony is admissible,

we conclude that defense counsel was not ineffective for failing to object thereto such that

Weber was prejudiced. Weber’s fifth assigned error is overruled, and the judgment of the

trial court is affirmed.

                                        ..........

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

R. Lynn Nothstine
William Gallagher
Hon. Frances E. McGee
