[Cite as State v. Blachowski, 2019-Ohio-2331.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO                                     :

                 Plaintiff-Appellee,              :
                                                             No. 107616
                 v.                               :

SCOTT BLACHOWSKI,                                 :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 13, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-18-626046-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jennifer A. Driscoll and Debora Brewer,
                 Assistant Prosecuting Attorneys, for appellee.

                 John T. Forristal, for appellant.


KATHLEEN ANN KEOUGH, J.:

                   Defendant-appellant, Scott Blachowski, appeals from his convictions

for rape, gross sexual imposition, and endangering children. Finding no merit to

the appeal, we affirm.
                                       I. Background

                  In February 2018, a Cuyahoga County Grand Jury charged

Blachowski in a sixteen-count indictment with six counts of rape in violation of R.C.

2907.02(A)(1)(b); six counts of gross sexual imposition in violation of R.C.

2941.148(A); and four counts of endangering children in violation of R.C.

2919.22(B)(1). All of the rape and gross sexual imposition counts carried a sexually

violent predator specification. Blachowski pleaded not guilty, and the matter

proceeded to a jury trial.

                  P.T., the great-grandmother of E.T., the victim, testified that she

obtained custody of E.T.’s mother, K.T., when K.T. was nine years old. She testified

that K.T. gave birth to E.T. when she was 16 years old, but only a few weeks after

giving birth, K.T. “started becoming wild again, drinking, taking marijuana,” and did

not want to care for E.T. P.T. said that K.T. and Blachowski lived with her but had a

volatile relationship marred by drinking, drug use, and domestic violence.

                  Blachowski and K.T. moved out of P.T.’s home when E.T. was one

year old, and P.T. continued to care for the child. K.T. regained custody of E.T. when

he was a toddler, however, and E.T. moved in with her and Blachowski. P.T. testified

that K.T. and Blachowski continued to drink “quite a bit,” and K.T. used marijuana

“all the time.”

                  E.T., who was ten years old at the time of trial, testified that he lived

with his mom, Blachowski, and two siblings. He said that he saw his mom and dad
“drinking all the time,” and he often saw his dad hitting his mom; one time he saw

Blachowski put a knife to K.T.’s stomach.

               He said he, his mom, and dad all slept in the same bed, and

Blachowski began abusing him when he was four or five years old. E.T. said that he

told his mom what Blachowski had done after the first time Blachowski touched his

penis, but Blachowski told K.T. “he thought it was just the sheets,” so she “didn’t do

anything.” E.T. testified that he knew Blachowski’s explanation was a lie because,

he said, “I felt it. I seen it. It happened to me. I know it wasn’t a dream.”

               E.T. said that Blachowski sexually abused him repeatedly through the

years. He said the incidents occurred at night in bed while K.T. was sleeping, and

he was afraid to wake her up. He said that Blachowski touched his penis, and forced

him to touch Blachowski’s penis. E.T. testified further that Blachowski would put

his penis in E.T.’s mouth, and he was forced to put his penis in Blachowski’s mouth.

E.T. testified that Blachowski once made him insert his penis into his four-year-old

sister’s bottom; he said he specifically remembered the incident because the family

had just moved back from Arizona when it happened.

               E.T. testified that two days before he told his grandmother what had

been going on, Blachowski forced him to watch pornography and then “the same

thing as always” happened; “he made me suck his penis. He sucked mine.”

               E.T. testified that he loved Blachowski, and that Blachowski “tried to

be a good dad.” He said he was “confused” when the sexual abuse happened because

he “kind of knew it was bad. But my dad did it.”
               P.T. testified that E.T. and his siblings spent time at her house almost

every weekend through the years. She said that when E.T. was nine years old, she

realized that he seemed especially angry and unhappy, so she told him that he could

talk to her if something was bothering him. P.T. said that E.T. then told her that

Blachowski had touched him “in his private area.” P.T. testified that E.T. told her

that K.T. was sleeping in the bed while it was happening, and P.T. “just took that to

mean she had been drinking.” P.T. testified further that E.T. told her that K.T. had

believed Blachowski’s explanation that it was “just the sheet” when he had told her

years ago what had happened, and that he asked her to tell K.T. what had been going

on.

               P.T. testified that E.T. moved in with her shortly after Blachowski was

arrested, and initially seemed happy to live with her. P.T. said that a few weeks after

he moved in, however, two incidents occurred that caused him to be hospitalized

twice for psychiatric treatment. P.T. said that E.T. now takes medication for

depression and receives counseling.

               Cleveland Police Detective Richard Durst testified that he

investigated the case. He said that he interviewed E.T., who disclosed sexual abuse

by Blachowski. He said that E.T. seemed “sad” during the interview, but gave

detailed disclosures about what had happened. Detective Durst testified that he also

interviewed K.T., and then, after consulting with the prosecutor, issued an arrest

warrant for Blachowski.
              Detective Durst testified that he did not obtain any physical evidence

in the case, but explained that no DNA evidence was available due to E.T.’s delayed

disclosure. He said that he did not interview E.T.’s sister, so he was unable to

corroborate E.T.’s allegation about her, but he said that K.T. had confirmed that the

family had moved from a rear apartment to a front apartment, thus corroborating

E.T.’s statement to him that the incidents had happened in two apartments. On

cross-examination, Detective Durst admitted that he did not look at Blachowski’s

telephone, even though it could have corroborated E.T.’s allegation that Blachowski

made him watch pornography.

              Blachowski testified in his own defense. He admitted that he cheated

on K.T. and was physically abusive toward her, and that he had been convicted of

domestic abuse. He said that E.T. “got it right” that E.T. slept in the bed with

Blachowski and K.T., that Blachowski beat K.T., and that Blachowski whipped E.T.

Blachowski denied, however, that he ever showed pornography to E.T. or did

anything of a sexual nature with him.

              The state dismissed two counts of rape (Counts 3 and 11), and one

count of gross sexual imposition (Count 14).         The jury subsequently found

Blachowski guilty of all remaining counts — four counts of rape, five counts of gross

sexual imposition, and four counts of endangering children. The court found him

guilty of the sexually violent predator specifications attached to the rape and gross

sexual imposition charges.
               The court sentenced Blachowski to life in prison without the

possibility of parole on the rape counts; concurrent with five years to life on the gross

sexual imposition counts; eight years on Counts 7 and 15 (felony endangering

children); and six months with credit for time served on Counts 8 and 16

(misdemeanor endangering children). This appeal followed.

                                 II. Law and Analysis

                        A. Improper Juror Communication

               After E.T. testified, the court took a lunch recess. After the break, the

prosecutor notified the trial court of the following:

      It came to our attention over the lunch hour that the defendant’s
      stepmother who has been in the back of the courtroom through the
      entire proceedings had made contact with the victim’s mother, K.T.,
      and she had known that K.T. was subpoenaed in and kept separate as
      witnesses cannot talk about the proceedings as they’re going on.

      They were on the fourth floor of the Justice Center building in the green
      elevator well and K.F. was giving K.T. a play by play of everything that
      has been going on [in] the courtroom, talking about the testimony,
      talking about pleas, talking about Mr. Blachowski’s looks when he said
      he wouldn’t take the plea. They were talking very loudly. I could hear
      everything loudly. I was in the red elevator well. My co-counsel, Deb
      Brewer, was also in the red elevator well also watching as jurors on this
      case were walking by.

      I obviously cannot attest as to whether a juror heard anything but we
      are concerned that a juror may have heard something and we’re also
      concerned about the tainting of our witness. (Tr. 295-296.)

               In his first assignment of error, Blachowski contends that the trial

court committed reversible error in not declaring a mistrial in light of the

prosecutor’s advisement. He further contends that the hearing about the alleged

improper juror contact was inadequate because, at a minimum, the trial court
should have interviewed each juror individually when it learned of the improper

communication. We disagree.

               First, Blachowski did not ask for a mistrial in the trial court or object

to the court’s decision not to declare a mistrial. Likewise, he did not object to the

trial court’s handling of the hearing regarding the alleged improper juror

communication, nor did he ask the court to question each juror individually. It is

well-settled that failure to raise a claim of error at trial waives all but plain error on

appeal. State v. Watkins, 8th Dist. Cuyahoga No. 77051, 2000 Ohio App. LEXIS,

* 17 (Sept. 7, 2000).

               Plain error is an obvious error or defect in the trial court proceeding

that affects a substantial right. State v. Gray, 8th Dist. Cuyahoga No. 92303, 2010-

Ohio-240, ¶ 17, citing State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978).

An alleged error is plain error only if the error is obvious and but for the error, the

outcome of the trial clearly would have been otherwise. State v. Yarbrough, 95 Ohio

St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 108. We take notice of plain error

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

manifest miscarriage of justice.” Long at paragraph three of the syllabus. The

burden of demonstrating plain error is on the party asserting the error. State v.

McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 84 (8th Dist.). Blachowski has not

demonstrated any error, plain or otherwise.

               When a trial court learns of an improper communication with a juror,

it must hold a hearing to determine whether the communication biased the juror.
State v. Phillips, 74 Ohio St.3d 72, 88, 66 N.E.2d 643 (1995). It is the accused’s

burden to show that the improper communication biased the juror and that the

accused was prejudiced by the bias. State v. Keith, 79 Ohio St.3d 514, 527, 684

N.E.2d 47 (1997). Trial courts are granted broad discretion in determining whether

to declare a mistrial or replace an affected juror, and we review for an abuse of that

discretion. Phillips at 89; State v. Worwell, 8th Dist. Cuyahoga No. 80871, 2002-

Ohio-6637, ¶ 7.

                 Here, upon being informed of the potential juror communication, the

judge questioned K.F., who acknowledged that she knew that K.T. was a potential

witness at trial, but insisted that she “really didn’t think together” that talking with

her about the trial was a problem. The judge then brought in the jury and questioned

it as follows:

       Welcome back, ladies and gentleman.

       Before the state calls the next witness, every once in a while we’re going
       to check in with you after a recess when you’ve been off the floor if
       you’ve heard anything about the case, you know, anything in violation
       of the admonitions that I give you when you’re leaving. So if you heard
       anybody talking in the hallway, if you caught an elevator with people
       talking trial strategy, anything like that, does anyone have anything to
       report from the lunch hour?

                 When no juror responded that he or she had heard anything

improper, the judge indicated that the state could call its next witness.

                 Blachowski contends that this hearing was insufficient because, at the

very least, the judge should have questioned each juror individually regarding
whether he or she had heard anything during the break. He contends that the court’s

failure to do so was an abuse of discretion.

               We find that the hearing was adequate, and that the trial court did not

abuse its discretion by not interviewing each juror individually. The scope of voir

dire used to investigate for allegations of improper communication with members

of the jury is within the trial court’s discretion. State v. Sanders, 92 Ohio St.3d 245,

252, 750 N.E.2d 90 (2001). Here, the judge directed her question to all the jurors,

and, when no one spoke up, she could reasonably assume that no juror was affected

by the alleged improper communication. Thus, the court did not abuse its discretion

by stopping its questioning at that point. Sanders at id. (no abuse of discretion in

not interrogating each juror individually where the court directed a question to all

jurors and no one responded). Furthermore, because the trial court determined that

no juror was affected by the alleged improper communication, the court did not

abuse its discretion in continuing on with the trial and not declaring a mistrial.

               The first assignment of error is therefore overruled.

                                B. Opinion Testimony

               During redirect examination of Detective Durst, the following

colloquy occurred:

      Q. And just one follow-up question. He asked you all about your
      interview techniques and your interrogation techniques. When you are
      interviewing witnesses, what is your goal? What are you trying to
      determine?

      A. What am I trying to determine?
         Q. Are you interrogating them? What is your purpose of interviewing
         them?

         A. My purpose is — I would like them to tell the truth.

(Tr. 363.)

                 In his second assignment of error, Blachowski contends that this

testimony, coupled with Detective Durst’s testimony that he issued an arrest warrant

for Blachowski after he interviewed E.T. and K.T., implicitly conveyed to the jury

that the detective thought E.T. was telling the truth, and was therefore reversible

error.

                 Initially, we note that Blachowski raised no objection to Detective

Durst’s testimony and therefore has waived all but plain error on appeal.

                 In State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989),

syllabus, the Ohio Supreme Court held that “an expert may not testify as to the

expert’s opinion of the veracity of the statements of a child declarant.” This is

because the trier of fact, and not the expert, has the burden of assessing the

credibility and veracity of witnesses. Id. at 128-129.

                 However, “only statements directly supporting the veracity of a child

witness are prohibited under Boston.” State v. Cashin, 10th Dist. Franklin No. 09A-

367, 2009-Ohio-6419, ¶ 20, citing State v. Rosas, 2d Dist. Montgomery No. 22424,

2009-Ohio-1404. As explained in Rosas:

         The rules of evidence permit an expert to offer an opinion on an
         ultimate issue, which the jury was empaneled to decide. Evid.R. 704
         (“Testimony in the form of an opinion or inference otherwise
         admissible is not objectionable solely because it embraces an ultimate
         issue to be decided by the trier of fact.”) As [State v.] Stowers, [81 Ohio
      St.3d 260, 690 N.E.2d 881 (1998)] taught, this includes a psychologist’s
      expert opinion on whether a particular child was sexually abused.
      Stowers at 261. What an expert may not do is offer a direct opinion on
      whether a child is telling the truth. State v. Boston, 46 Ohio St.3d 108,
      545 N.E.2d 1220 (1989), syllabus (an “expert may not testify as to the
      expert’s opinion of the veracity of the statements of a child declarant”).
      There is a distinction “between expert testimony that a child witness is
      telling the truth,” on the one hand, and on the other hand, “evidence
      which bolsters a child’s credibility insofar as it supports the
      prosecution’s efforts to prove that a child has been abused.” Stowers
      at 262. Expert testimony is admissible as to the latter. This is evidence
      that provides “additional support for the truth of the facts testified to
      by the child, or which assists the fact finder in assessing the child’s
      veracity.” Id. Such testimony “does not usurp the role of the jury, but
      rather gives information to a jury which helps it make an educated
      determination.” Id. at 263.

Rosas at ¶ 42.

                 Thus, in Rosas, the Second District held that the testimony of a child

psychologist was within permissible bounds where the psychologist testified about

the behavioral characteristics of sexually abused children, compared those

characteristics to the victim’s behavior, and concluded that she had been sexually

abused. Rosas at ¶ 43. The court found that the trial court did not abuse its

discretion in allowing the testimony because the psychologist never directly testified

that she believed what the victim had told her or that she thought the victim was a

credible witness. Id.

                 Likewise, in Cashin, the Tenth District found that the testimony of a

medical social worker who interviewed the victim did not violate Boston where the

social worker testified about the substance of statements made by the victim during

the interview and about the victim’s general demeanor, but did not offer any
testimony expressing an opinion about whether the victim’s statements were true.

Id. at ¶ 20. The court found that “[t]his type of indirect bolstering of a victim’s

credibility is not the same as the direct rendering of an opinion as to the victim’s

veracity that was involved in Boston.” Id.

               Here, Detective Durst never directly testified that he thought E.T. was

telling the truth, nor even that he thought E.T. was sexually abused. Thus, his

testimony was not prohibited by Boston. Furthermore, even if we were to conclude

that his testimony somehow indirectly bolstered E.T.’s credibility, as discussed

above, only testimony directly commenting on the child’s veracity is improper;

testimony indirectly bolstering a child’s credibility is permissible. Accordingly, the

detective’s testimony was permissible, and we find no plain error in its admission.

               The second assignment of error is overruled.

                        C. Manifest Weight of the Evidence

               In his third assignment of error, Blachowski contends that his

convictions are against the manifest weight of the evidence.

               A manifest weight challenge questions whether the state met its

burden of persuasion. State v. Freeman, 8th Dist. Cuyahoga No. 106374, 2018-

Ohio-3587, ¶ 18. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether in resolving conflicts in the evidence, the trier of fact clearly lost

its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 388,

678 N.E.2d 541 (1997). An appellate court will reverse a conviction as against the

manifest weight of the evidence only in the most exceptional case in which the

evidence weighs heavily against the conviction. Id.

              Blachowski contends that his conviction was against the manifest

weight of the evidence because E.T.’s testimony was not credible beyond a

reasonable doubt. He points out that E.T. told the social worker that Blachowski

made him touch his mother, but admitted at trial that allegation was not true. He

contends that E.T.’s testimony that he told his mother about Blachowski three times

over six years was not credible because P.T. testified that E.T. told her of only one

instance when he told K.T. of the abuse. He further contends that E.T.’s testimony

that Blachowski “raped me every night” could not be true because E.T. spent many

nights at P.T.’s house.    Blachowski also asserts that E.T.’s testimony seemed

“coached” because he used “technical and legal words that a ten-year-old would not

normally use,” such as “raped,” “abusive,” “sexually abused,” and “molested.” He

also contends that E.T. admitted that he learned from a news story that it was wrong

to sexually abuse a child, and that he talked about sex with his friend D., admissions

that Blachowski contends suggest that E.T. fabricated his testimony.

              Blachowski asserts that in addition to E.T.’s “problematic” testimony,

(1) there was no physical evidence that linked him to the offenses; (2) Detective

Durst’s investigation was incomplete because he did not interview E.T.’s sister and

did not check Blachowski’s telephone for evidence of child pornography; (3) the
state did not provide an expert witness to attribute E.T.’s outbursts, psychiatric

hospitalizations, medications, and counselling to sexual abuse, and (4) P.T. was not

qualified to testify about a correlation between the abuse and E.T.’s behavior and

psychiatric breakdowns. Consequently, he contends that his convictions were

against the manifest weight of the evidence.

               Despite Blachowski’s arguments, this is not the “exceptional case” in

which the evidence weighs heavily against the convictions.            Determinations

regarding the credibility of witnesses and the weight given to the evidence are

primarily matters for the trier of fact to decide. State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967). The trier of fact is best able to view the witnesses and observe

their demeanor and voice inflections, and use these observations in weighing the

credibility of the proffered testimony. State v. Wilson, 113 Ohio St.3d 382, 2007-

Ohio-2202, 865 N.E.2d 1264, ¶ 24. “The jury may take note of any inconsistencies

and resolve them accordingly, ‘believing all, part, or none of a witness’s testimony.’”

State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 33, quoting State v.

Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958.

               Moreover, Ohio courts “have consistently held that a rape victim’s

testimony, if believed, is sufficient to support a rape conviction. ‘There is no

requirement that a rape victim’s testimony be corroborated as a condition precedent

to conviction.’” State v. Williams, 8th Dist. Cuyahoga No. 92714, 2010-Ohio-70, ¶

32, quoting State v. Lewis, 70 Ohio App.3d 624, 638, 591 N.E.2d 854 (4th Dist.

1990).
               Here, the jury heard E.T.’s testimony regarding the abuse, and

further, his assertion that Blachowski’s denial that he knowingly touched E.T. was a

lie. The jury also heard Blachowski’s testimony denying that he sexually abused

E.T., but admitting that E.T. “got it right” about other disturbing things that

happened in the home. Further, the jury heard Detective Durst explain that there

was no physical evidence to support the allegations because E.T. delayed disclosing

the abuse for several days after it happened for the last time, but that the detective’s

interview with K.T. corroborated E.T.’s statement that the abuse happened in two

different apartments.

               A careful review of the record shows that E.T.’s testimony, if believed,

supports Blachowski’s convictions for rape, gross sexual imposition, and child

endangering. The jury, as the trier of fact, was in the best position to believe or not

believe E.T.’s allegations and to resolve any inconsistencies in the evidence.

Likewise, the jury could believe or not believe Blachowski’s testimony denying the

abuse. The jury chose to believe E.T. and not Blachowski, and on this record, we

cannot conclude that the jury lost its way in convicting him.

               After reviewing the entire record and considering the credibility of the

witnesses, we do not find that the trier of fact clearly lost its way and created a

manifest miscarriage of justice in finding Blachowski guilty of rape, gross sexual

imposition, and endangering children. Accordingly, the third assignment of error is

overruled.

               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 of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending 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.



KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR
