[Cite as In re J.F., 2012-Ohio-2191.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96875




                                         IN RE: J.F.

                                        A Minor Child



                                         JUDGMENT:
                                          AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. DL-10100868

        BEFORE:           Boyle, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEY FOR APPELLANT

Richard H. Drucker
700 West St. Clair Avenue
The Hoyt Block
Suite 214
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE, STATE OF OHIO

William D. Mason
Cuyahoga County Prosecutor
BY: William Kaczmarek
Assistant County Prosecutor
9300 Quincy Ave., 4th Floor, Room #4100
Cleveland, Ohio 44115
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, J.F., 1 appeals the judgment of the juvenile court

finding him delinquent for committing two counts of gross sexual imposition. Finding

no merit to the appeal, we affirm.

       {¶2} This case arose in January 2010, when a complaint was filed charging

17-year-old J.F. with five counts of gross sexual imposition.          At trial, the victim,

ten-year-old A.G., testified as to five incidents involving J.F., her older cousin, that

started in 2007 when she was seven years old and continued into the next year. A.G.

testified that the first incident occurred during a game of hide-and-seek when she was

hiding in a closet in the basement of her parents’ home in Parma. According to A.G.,

J.F. followed her into the closet and then once seated behind her, he touched her, “moving

his hand * * * around in the area of [her] private part.” A.G. reported the incident to her

older sister but not her parents because she believed that J.F. would hurt her brother if she

told on him.

       {¶3} A.G. further testified that the next two incidents also occurred during a

game of hide-and-seek. During these incidents, J.F. rubbed A.G.’s upper thigh while

seated next to her. A.G. again reported the events to her sister but no one else.



       1
         The parties are referred to herein by their initials or title in accordance
with this court’s established policy regarding non-disclosure of identities in juvenile
cases.
       {¶4} The last two incidents occurred in Cleveland, after the family had moved

from Parma to Cleveland. A.G. testified that while she and her sister were asleep in bed,

she awoke to find J.F. in her bed asleep with his pants down. A.G. testified that she did

not know if J.F. touched her.

       {¶5} The last incident occurred after A.G. had started third grade.              A.G.

described this incident as follows:

       * * * I went upstairs to go see what my brothers were doing, and [J.F.] was
       standing there and he told me we need to talk, so he pulled me into the side
       closet. * * * And he was telling me about how that if I tell anybody, that
       he was going to hurt my brother. * * * Then he pulled me and turned me
       around, went to do the same thing as before, but then his brother [A.F.]
       called him downstairs and he got on the phone.

While using dolls to show what happened, A.G. further testified as follows: “* * * [H]e’s

sitting down and I’m standing this way. He gets up and pulls me over here, sits down

and starts to put his hand on my thigh.” A.G. stated that she was wearing shorts and a

T-shirt.

       {¶6} Conversely, J.F. testified that none of the incidents occurred as testified to

by A.G. He acknowledged that he had played hide-and-seek with A.G. and her siblings

but denied that he ever hid alone with A.G. or that he ever “touched” her inappropriately.

He further testified that although he spent quite a bit of time at his aunt and uncle’s house,

he was primarily hanging out with A.G.’s older brothers and rarely spent time with A.G.

He explained that he was 16 years old at the time of these alleged incidents and that

A.G.’s older brothers were only a few years younger than he.
       {¶7} The trial court ultimately dismissed the second, third, and fourth counts of

the complaint but found J.F. to be delinquent of the first and last counts of the complaint.

The trial court sentenced J.F. to community controlled sanctions until such time as the

probation office files a notice of termination. The court further found that J.F. was not

subject to juvenile offender registration.

       {¶8} J.F. appeals, raising the following three assignments of error:

       {¶9} “[I.] The trial court committed prejudicial, reversible error in violation of

appellant’s constitutional rights to due process and a fair trial when it allowed the state’s

witness to vouch for the complainant’s credibility.

       {¶10} “[II.] The appellant was denied his due process rights to a fair trial by the

ineffective assistance of his trial counsel.

       {¶11} “[III.] The verdicts returned against the defendant-appellant were against

the manifest weight of the evidence.”

                                    Credibility Testimony

       {¶12} In his first assignment of error, J.F. argues that the trial court erred when it

allowed the state to elicit testimony vouching for the credibility of A.G. from Kristy

Prochaska, a sex abuse worker with Cuyahoga County Department of Children and

Family Services (“CCDCFS”) who investigated the allegations of sexual abuse of A.G.

He contends that Prochaska’s testimony violated the Ohio Supreme Court’s directive in

State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), which recognizes that it is
improper for an expert witness to vouch for the credibility of a victim’s account of an

incident.

          {¶13} The record reveals that the state specifically asked Prochaska to detail those

factors that she considers in evaluating an allegation of sexual abuse, i.e., the applicable

red flags in determining whether an allegation is credible or not. The questioning,

however, then developed to the state eliciting testimony as to Prochaska’s opinion of

A.G.’s credibility. Specifically, Prochaska testified that she “found reason to believe that

this happened based on [A.G.’s] disclosure” and “didn’t find any reason to believe that

[A.G.] would make this up.”          The defense failed to object to this testimony.      We

therefore review this assignment of error under a plain error standard of review. See

State v. Blevins, 152 Ohio App.3d 39, 2003-Ohio-1264, 786 N.E.2d 515, ¶ 21 (12th

Dist.).

          {¶14} In order to prevail under a plain error analysis, J.F. bears the burden of

demonstrating that the outcome of trial clearly would have been different but for the

errors. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B).

          {¶15} J.F. argues that the admission of this evidence rises to plain error because

there was no other evidence supporting the allegations of the complaint aside from A.G.’s

testimony, which he contends was not credible based on the accounts of the other

witnesses. Under Boston, he contends that his adjudication must be reversed and a new

trial ordered.
         {¶16} Although we find that the testimony elicited was improper, we cannot say

that its admission rises to the level of plain error.     First, this case was tried to a

magistrate, not a jury. Under such circumstances, we presume that a trial court considers

nothing but relevant and competent evidence in reaching its verdict unless the record

indicates otherwise. Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863

N.E.2d 1125, ¶ 27 (8th Dist.), citing State v. Fautenberry, 72 Ohio St.3d 435, 650 N.E.2d

878 (1995). Notably, this is not a scenario where the trial court overruled an objection to

the admissibility of the testimony, thereby evidencing that it relied on such evidence. See

In re C.T., 8th Dist. No. 97278, 2012-Ohio-1644 (recognizing that the evidentiary

presumption that exists in bench trial, i.e., trial judge considers only relevant and

competent evidence, does not apply when the trial court overrules an objection to

inadmissible evidence and fails to explain the basis of the ruling). Second, the victim

testified in this case. Thus, the magistrate was able to assess A.G.’s credibility firsthand

and afford the proper weight to her testimony.

         {¶17} Conversely, in Boston, the case was tried to a jury and the victim herself

never testified. Given these distinctions, our case does not present the same inherent risk

of unduly influencing the trier of fact and infringing upon the role of the fact finder that

was present in Boston based on the expert’s testimony declaring the victim truthful in her

statements. Accordingly, we find no plain error and overrule the first assignment of

error.

                             Ineffective Assistance of Counsel
       {¶18} In his second assignment of error, J.F. argues that he was denied effective

assistance of counsel.

       {¶19} In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), the United States Supreme Court set forth the two-pronged test for ineffective

assistance of counsel. It requires that the defendant show (1) counsel’s performance was

deficient; and (2) the deficient performance prejudiced the defense. The first prong

“requires showing that counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. The

second prong requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is unreliable.” Id. In other words, a

defendant must show that the outcome of the proceedings would have been different but

for counsel’s deficient performance. Id. at 694.

       {¶20} J.F. first contends that his trial counsel was deficient for failing to object to

Kristy Prochaska’s testifying as an expert witness and offering her opinion as to A.G.’s

credibility. While we disagree that defense counsel was deficient for failing to challenge

Prochaska’s qualifications as a sex abuse worker with CCDCFS, we find that defense

counsel should have objected to Prochaska’s testimony bolstering A.G.’s credibility. But

we nonetheless cannot say that the outcome of the trial would have been different had

defense counsel objected.     Here, we find no reason to conclude that the trial court

improperly relied on Prochaska’s opinion of A.G.’s veracity given the presumption

afforded in bench trials. Again, as discussed in the first assignment of error, A.G.
testified herself and the magistrate was in a position to best judge A.G.’s credibility. The

magistrate obviously found A.G. credible.

       {¶21} Next, J.F. argues that he was denied effective assistance of counsel because

his trial counsel failed to object to hearsay evidence. J.F., however, fails to identify the

hearsay evidence that he relies on in support of this broad statement.         See App.R.

16(A)(7); App.R. 12(A)(2).     Accordingly, we summarily reject this unsupported claim.

       {¶22} The second assignment of error is overruled.

                         Sufficiency and Weight of the Evidence

       {¶23} In his final assignment of error, J.F. argues that the delinquency

determination is against the manifest weight of the evidence because (1) A.G.’s testimony

was not credible; and (2) the state failed to present any evidence that the touching was

“for the purpose of sexually arousing or gratifying either person.” Although couched as

a “manifest weight of evidence” argument, J.F. is actually raising both a manifest weight

of the evidence and sufficiency argument so we will address both standards.

       {¶24} When an appellate court reviews a record upon a sufficiency challenge,

“‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to

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

crime proven beyond a reasonable doubt.’”         State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. Conversely, in reviewing a claim

challenging the manifest weight of the evidence, the question to be answered is “whether
       there is substantial evidence upon which a jury could reasonably conclude that all the

       elements have been proved beyond a reasonable doubt.” Leonard, 104 Ohio St.3d at ¶

       81. This review entails the following:

              we must examine the entire record, weigh the evidence and all reasonable
              inferences, consider the credibility of the witnesses, and determine whether
              the jury clearly lost its way and created such a manifest miscarriage of
              justice that the conviction must be reversed and a new trial ordered. Id.
              (Internal quotes and citations omitted.)
              {¶25} J.F. was found delinquent of gross sexual imposition, in violation of R.C.

       2907.05, which provides, in part:

              (A) No person shall have sexual contact with another, not the spouse of the
              offender; cause another, not the spouse of the offender, to have sexual
              contact with the offender; or cause two or more other persons to have
              sexual contact when any of the following applies:

              ***

       (4) The other person, or one of the other persons, is less than thirteen years of age,
       whether or not the offender knows the age of that person.

       {¶26} We will first address J.F.’s sufficiency argument. He claims that the state failed to

present sufficient evidence to satisfy the meaning of sexual contact as defined under the statute. Under

R.C. 2907.01(B), “‘[s]exual contact’ means any touching of an erogenous zone of another, including

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for

the purpose of sexually arousing or gratifying either person.” J.F. argues that there was no evidence

demonstrating that he “touched” A.G. for the purpose of sexual arousal or gratification. We disagree.

       {¶27} “[W]hether the defendant acted with the purpose to sexually arouse or gratify either

person ‘is a question of fact to be inferred from the type, nature, and circumstances of the contact.’” In

re Redmond, 3d Dist. No. 1-06-90, 2007-Ohio-3125, at ¶ 8. (Citations omitted.) “While a touching,
standing alone, may not be sufficient for a conviction, it can be strong evidence of the offender’s

intent.” State v. Griffiths, 11th Dist. No. 2000-T-0131, 2002 WL 5307 (Dec. 28, 2001), citing In re

Anderson, 116 Ohio App.3d 441, 444, 688 N.E.2d 545 (12th Dist.1996). Finally, a trier of fact may

infer from the evidence presented that the motivation for a defendant’s actions was sexual arousal or

gratification by his contact with those areas of the body described in R.C. 2907.01. State v. Cobb, 81

Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991).

             {¶28} The evidence at trial revealed that J.F. touched A.G. in her pubic region

      while alone with her in a closet during a game of hide-and-seek. A.G. testified that J.F.

      sought her out two additional times during a game of hide-and-seek and rubbed her upper

      thigh. In the last incident, A.G. testified that J.F. again touched her thigh like he had

      done before after warning her not to tell anyone about the touching.

             {¶29} We find that the evidence of J.F. touching A.G. while alone in a closet

      coupled with his admonition not to tell anyone is sufficient for the trier of fact to

      reasonably infer that the touching was for the purpose of sexual arousal or gratification.

      Indeed, this was not a case of accidental touching or some type of innocent contact.

      Under similar circumstances, other courts have found that such evidence is enough for the

      trier of fact to reasonably infer that the defendant’s purpose was for sexual arousal or

      gratification. See, e.g., In re S.S., 4th Dist. No. 10CA682, 2011-Ohio-4081 (evidence of

      defendant being alone with the victim away from the other party guests while touching

      victim inside her panties was enough to infer defendant’s purpose for touching); In re

      S.C.T., 12th Dist. No. CA2004-04-095, 2005-Ohio-2498 (defendant’s touching of the
victim’s penis while alone in the bedroom was sufficient evidence to establish purpose

element).

       {¶30} We next turn to J.F.’s claim that his delinquency finding is against the

manifest weight of the evidence because A.G.’s testimony was not credible. But the

magistrate heard A.G.’s testimony and was in the best position to evaluate her credibility.

 We cannot say that the trier of fact “clearly lost its way” simply because it found A.G.

more credible than J.F.

       {¶31} Accordingly, the final assignment of error is overruled.

       {¶32} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

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

pleas court, juvenile division, to carry this judgment into execution. The finding of

delinquency having been affirmed, any bail or stay of execution pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
