[Cite as State v. Thompson, 2014-Ohio-1056.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99846




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                JOHNNY THOMPSON
                                                     DEFENDANT-APPELLANT




                      JUDGMENT:
   AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-12-562669-A

        BEFORE: Rocco, P.J., E.A. Gallagher, J., and Kilbane, J.

        RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANT

Myron P. Watson
323 W. Lakeside Avenue
Suite 420
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Andrew J. Santoli
      Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, P.J.:

       {¶1} Defendant-appellant Johnny Thompson appeals from his sentence for

kidnapping with a sexual motivation specification, rape, gross sexual imposition, and

attempted felonious assault. Thompson argues that the trial court erred in its evidentiary

rulings, that he received ineffective assistance of counsel, and that the trial court erred in

denying his motion for judgment of acquittal on the attempted felonious assault charge.

We conclude that the trial court did not abuse its discretion in making its evidentiary

rulings. We further conclude that Thompson did not receive ineffective assistance of

counsel. Although the evidence was insufficient to support the attempted felonious

assault conviction, we determine that the evidence did support a conviction for the lesser

included offense of simple assault. Accordingly, we affirm in part and modify in part the

trial court’s final judgment.

       {¶2} Thompson was convicted following a jury trial. The victim, S.D., was

seven years old at the time of the offense, and she knew Thompson as a friend of her

mother. S.D. testified that on the day of the attack, Thompson was at her house. S.D.

accompanied Thompson to McDonald’s. They brought the food back home, and S.D.

went back into her bedroom to eat. Later, S.D. was in her mother’s bedroom watching

television. Thompson and S.D.’s mother were in the living room down the hall. S.D.

heard Thompson tell S.D.’s mother that he had to use the bathroom. But instead of using

the bathroom, Thompson entered S.D.’s mother’s room. S.D. testified that Thompson

told her to pull her pants down, and when she refused, he pulled down her pants, put his
hands on the inside of her pants, and put his finger in her rectum. He also hit her on the

head leaving a mark on her forehead area. Shortly after the incident, Thompson left.

S.D. walked into the living room, crying. S.D.’s mother asked her what was wrong, and

S.D. told her what Thompson had done.

        {¶3} S.D.’s mother testified that she had known Thompson for about thirty years

and that their relationship was only sexual. On the day of the incident, Thompson came

over and they sat in the living room and drank alcohol. Eventually, S.D.’s mother asked

Thompson to take S.D. to McDonald’s. After they returned home, S.D. went in her

bedroom to eat her food, and Thompson and S.D.’s mother stayed in the living room,

talking and listening to music. Thompson got up to use the bathroom. About five or six

minutes later, he returned to the living room, sat down for a couple of minutes and then

left.

        {¶4} S.D.’s mother testified that after Thompson left, S.D. came into the living

room trembling, with watery eyes and a strange look on her face. After hearing what

S.D. told her, S.D.’s mother contacted a neighbor and then called 911. An ambulance

came to take S.D. to the hospital to be examined.

        {¶5} Nurse Kathleen Hackett testified next. Hackett is a registered sexual assault

examination nurse (“SANE”), and she examined S.D. at the hospital. S.D. told Hackett

about the sexual assault, explaining that she was told to pull down her pants and to bend

over, and that she was touched on her butt.         S.D. told Hackett that a man named

“Johnny” was the perpetrator.
       {¶6} Hackett measured S.D.’s injuries using a magnifying instrument called a

colposcope. Hackett discovered a 1.8 millimeter bright red circular marking on S.D.’s

hymen. Hackett determined that it is not normal to have a bright red mark on the hymen

and that the injury could be consistent with a scratch. Hackett also testified that the

anal and vaginal areas are in close proximity to one another and that a child may not be

able to differentiate between touching the anal or vaginal areas on her body. Hackett

determined that the type of redness she observed would be visible only within 12 hours of

the occurrence because the young child’s hymen is smooth and heals rapidly. Hackett

stated that her observations of S.D.’s injuries were consistent with the description of

sexual assault that S.D. reported. Hackett also testified that she has conducted many

sexual assault examinations where a child was penetrated in the vagina or anal cavity and

there was no evidence of injury.

       {¶7} Lindsey Pruneski, a forensic biologist with the Bureau of Criminal

Investigations (“BCI”) also testified. Pruneski received S.D.’s rape kit and tested for the

presence of semen and amylase. Amylase is a component found in a person’s bodily

fluids, including saliva, blood, sweat, and urine. Amylase was found on the crotch area

of S.D.’s underwear. Pruneski forwarded the underwear and other samples from the rape

kit for examination by the forensic DNA unit.

       {¶8} Lynda Eveleth is a forensic scientist with the DNA unit of the BCI. Eveleth

testified that she found only S.D.’s DNA on the labial and anal swabs from the rape kit.
But Eveleth found additional peaks on S.D.’s underwear sample that were inconsistent

with S.D.’s DNA profile, so she sent the sample to another BCI lab for further testing.

       {¶9} Halle Garofalo, a forensic scientist with the BCI, testified that she conducted

a YSTR test on the underwear sample. YSTR is DNA testing on the Y chromosome that

is present only in males. This test can ignore female DNA and examine only male DNA.

 After performing the test on the underwear sample, Garofalo determined that the Y

chromosome was present on the underwear and that it was consistent with Thompson’s Y

chromosome profile. She testified that this was one of the stronger profiles that she had

ever generated and that it was more likely than not to have resulted from primary contact.

 Primary contact is direct skin contact to an item.

       {¶10} Detective Michael Kovach, who worked in the Sex Crimes and Child

Abuse Unit on the date of the incident, testified that he was assigned to the instant case.

Det. Kovach spoke to the social worker from Children and Family Services who was

assigned to the case. The social worker verified to Kovach that S.D.’s disclosures to the

social worker were consistent with the statement she made in the original police incident

report. Kovach also testified that S.D.’s statements to him were consistent with the

statements made in the police incident report.

       {¶11} Thompson was the sole witness for the defense. He testified that he had

come over to see if he could engage in sexual relations with S.D.’s mother. He did not

expect that S.D. and her brother would be home from school early that day. After

realizing that he would not be having sex, Thompson planned to leave, but S.D.’s mother
asked him to take S.D. to McDonald’s to get dinner. Thompson agreed. They went to

McDonald’s and brought the food back. S.D. took her food to her bedroom to eat.

Thompson stated that he stayed for ten minutes more and then he left the house with no

problems. He testified that he never got up to go to the bathroom while in the house that

day.

       {¶12} Following his conviction, Thompson filed his notice of appeal from the trial

court’s entry of final judgment. He presents five assignments of error for review.

       I. The trial court erred when it allowed the state to introduce a portion of
       S.D.’s medical records in order to show an injury unrelated to a rape charge
       which unduly prejudiced Thompson and violated his right to due process of
       law.

       II. The trial court erred in allowing the SANE nurse to opine that the
       vaginal injury could have occurred through unlawful sexual conduct
       through attempted anal penetration in violation of Evid.R. 702 and 703
       and in violation of Thompson’s due process rights.

       III. The trial court erred when it denied Thompson’s Crim.R. 29 motion for
       judgment of acquittal on the charge of attempted felonious assault.

       IV. Thompson’s defense counsel failed to provide effective assistance
       because he failed to object to the admission of purported out of court
       hearsay statements made by S.D. but testified to by S.D.’s mother.

       V. The trial court erred when it allowed the state to introduce a portion of
       medical records showing an injury unrelated to a rape charge which unduly
       prejudiced Thompson and violated Thompson’s right to due process of law.

       {¶13} We consider the assignments of error out of order for ease of discussion.

We overrule the second, first, fifth, and fourth assignments of error. We sustain the third

assignment of error.
       {¶14} In his second assignment of error, Thompson argues that the trial court erred

in allowing the SANE nurse, Hackett, to offer opinions              about S.D.’s injuries.

Thompson asserts that the evidence was expert opinion evidence that did not comply with

the requirements found in Evid.R. 702 and 703. We disagree.

       {¶15} “‘A ruling concerning the admission of expert testimony is within the broad

discretion of the trial court and will not be disturbed absent an abuse of discretion.’”

State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 57, quoting Scott v.

Yates, 71 Ohio St.3d 219, 221, 643 N.E.2d 105 (1994). An expert witness is one who

“possess[es] knowledge in the relevant subject area that is superior to an ordinary

person.” Id. The witness may be “‘qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the testimony.”

Id., quoting Evid.R. 702(A) and (B).

       {¶16} In State v. Primeau, we found no error where a SANE nurse with similar

qualifications to Hackett’s offered similar testimony in a case involving         domestic

violence and sexual assault. Id. at ¶ 59. In Primeau, as in the instant case, the nurse

was not declared an expert on the record. See id. at ¶ 58, citing State v. Skinner, 2d Dist.

Montgomery No. 11704, 1990 Ohio App. LEXIS 4178 (Sept. 26, 1990) (“[S]o long as the

record indicates that the trial court did not abuse its discretion, we will not disturb a

decision to allow a witness to offer expert opinion testimony simply because ‘magic’

words do not appear on the face of the record.”).         We concluded that the nurse’s

“testimony was within the scope of her expertise because she is a trained medical
professional whose qualifications are in areas of domestic violence injuries and sexual

assault.” Id.

       {¶17} Similarly, in the instant case, Hackett testified that she had worked for

Rainbow Babies and Children’s Hospital for two and a half years, and that she had

worked as a clinical nurse for over thirty years. Hackett had performed over 120 exams

of children where sexual abuse was reported. She also outlined the extensive training

that she underwent in order to become a SANE nurse. We find no error in allowing

Hackett to offer expert testimony.

       {¶18} Thompson also argues that the trial court erred in permitting Hackett to

testify that S.D.’s vaginal injuries were consistent with her having been anally penetrated,

due to the size of a man’s hands and the small distance between the anal and vaginal area

of a seven-year-old child. According to Thompson, Hackett was not permitted to testify

as such without first measuring Thompson’s hands and measuring S.D.’s vaginal and anal

areas. Essentially, Thompson is arguing that Hackett’s testimony did not comport with

Evid.R. 702(C) and 703. Evid.R. 702(C) requires that the expert “witness’ testimony is

based on reliable scientific, technical, or other specialized information * * *.” Under

Evid.R. 703 “[t]he facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by the expert or admitted in evidence at the

hearing.”

       {¶19} These rules do not require that Hackett conduct the kind of measurements

suggested by Thompson. Hackett was basing her testimony on “specialized information”
that she had acquired from conducting more than 120 exams of children where sexual

abuse was reported. Hackett’s opinion was based on facts and data that she perceived

during the course of her examination of S.D. and on her past experiences examining other

children.

         {¶20} Thompson also argues that Hackett could not render her testimony because

she had no information or statements from S.D. that the vaginal injury was caused by

Thompson’s using his finger to enter her vaginally. But the point of Hackett’s testimony

was that the type of vaginal injury that was discovered could be consistent with the type

of sexual assault reported by S.D. Accordingly, this argument is nonsensical.

         {¶21} Hackett’s testimony comported with Evid.R. 702 and 703. Accordingly,

the trial court did not err in allowing Hackett to testify and we overrule the assignment of

error.

         {¶22} Because Thompson’s first and fifth assignment of error raise the same

argument, we consider them together. Thompson asserts that the trial court erred in

allowing the state to introduce a portion of S.D.’s medical records.         According to

Thompson, these medical records were inadmissible under Evid.R. 401 and 403 because

they were not relevant to any of the charges against him and they were unfairly

prejudicial.

         {¶23} A trial court has broad discretion in rendering evidentiary rulings and we

will not reverse such a ruling absent an abuse of discretion resulting in prejudicial error.

State v. Toudle, 8th Dist. Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 12.
       {¶24} Evidence is “relevant” if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Evid.R. 401.        “‘Generally speaking,

the question of whether evidence is relevant is ordinarily not one of law but rather one

which the trial court can resolve based on common experience and logic.’” State v.

Ford, 8th Dist. Cuyahoga No. 90834, 2008-Ohio-5471, ¶ 28, quoting State v. Lyles, 42

Ohio St.3d 98, 99, 537 N.E.2d 221 (1989).

       {¶25} Thompson argues that the portion of the medical records indicating redness

in S.D.’s vaginal area was not relevant to the question of whether S.D. was anally raped.

As discussed earlier, Hackett testified that the vaginal injuries set forth in the medical

record were consistent with a fingernail scraping or touching around S.D.’s vaginal area.

Further, Hackett testified that due to the small structure of a seven-year-old child, the

vagina and anus are in close proximity, meaning such an injury could be sustained if a

man stuck his hands into a child’s vaginal – buttock region. For these reasons, the trial

court could logically determine that this portion of the medical records was relevant to the

question of whether Thompson anally raped S.D. using his finger.

       {¶26} Thompson also argues that, even if relevant, this evidence was still

inadmissible because it violated Evid.R. 403.        Under this rule, evidence must be

excluded “if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Again, Thompson relies

on his assertion that vaginal redness is not probative of whether S.D. was anally raped,
and so such evidence must be unfairly prejudicial. As we have just explained, Hackett

testified that the injury in the medical record could be connected to the anal rape charge.

Accordingly, the evidence was probative, and was not unfairly prejudicial. We overrule

the assignments of error.

       {¶27} In his fourth assignment of error, Thompson argues that his defense counsel

provided ineffective assistance by failing to object to the admission of out of court

hearsay statements made by S.D. but testified to by S.D.’s mother. We conclude that,

even if Thompson’s trial counsel was deficient, Thompson suffered no prejudice from

this deficiency. Accordingly, we overrule the assignment of error.

       {¶28} A criminal defendant has the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To demonstrate ineffective assistance of counsel, a defendant must satisfy both parts of a

two-prong test. Id. at 687. The first prong requires that the defendant show that his trial

counsel’s performance was so deficient that the attorney was not functioning as the

counsel guaranteed by the Sixth Amendment to the United States Constitution. Id.

       {¶29} Under the second prong, the defendant must establish that counsel’s

“deficient performance prejudiced the defense.”        Id.   We determine prejudice by

analyzing whether “there is a reasonable probability that but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”              Id. at 694.

“Reasonable probability” is defined as probability sufficient to undermine confidence in
the outcome. Id.        The failure to prove either prong of the Strickland test is fatal to a

claim of ineffective assistance. Id. at 697.

              {¶30} Thompson argues that his trial counsel was deficient in failing to

object to the portion of the mother’s testimony concerning what S.D. had told her

following the attack. According to Thompson, the mother’s testimony was inadmissible

hearsay under Evid.R. 801.         Hearsay is “a statement, other than one made by the

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

matter asserted.” Evid.R. 801(C). The state argues that this portion of the mother’s

testimony was admissible under the excited utterance exception.

              {¶31} We need not resolve this debate, because even if the testimony was

inadmissible hearsay, and even if Thompson’s trial counsel was deficient in failing to

object to the testimony, Thompson was not prejudiced by the deficiency. “The main

premise behind the hearsay rule is that the adverse party is not afforded the opportunity to

cross-examine     the     declarant.”     Primeau,    8th   Dist.   Cuyahoga     No.   97901,

2012-Ohio-5172, ¶ 69. In Primeau, we found harmless error where the defense had the

opportunity to cross-examine the declarant. Id. Similarly, in the instant case, S.D.

testified and was subject to cross-examination.

              {¶32} Furthermore, even without this portion of the mother’s testimony,

there was ample other evidence supporting Thompson’s conviction, including S.D.’s

testimony, the remaining non-hearsay testimony from the mother, Hackett’s testimony,

Det. Kovach’s testimony, the medical report, and the DNA evidence. Accordingly, we
cannot say that there is a reasonable probability that but for counsel’s error, the result of

the proceeding would have been different. Accordingly, we overrule the assignment of

error.

               {¶33} In his third assignment of error, Thompson asserts that the trial court

erred in denying his Crim.R. 29 motion for judgment of acquittal on the felonious assault

charge. Under Crim.R. 29 a trial court must render a judgment of acquittal where the

state’s evidence is insufficient to sustain a conviction for the offense. When reviewing a

trial court’s decision regarding a Crim.R. 29 motion, we apply the same standard of

review that applies to a sufficiency of the evidence challenge. State v. Lowe, 8th Dist.

Cuyahoga No. 99176, 2013-Ohio-3913, ¶ 11. Our task is to view the evidence in a light

most favorable to the prosecution and to determine whether “any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

               {¶34} Thompson was found guilty of attempted felonious assault under

R.C. 2923.02 and 2903.11(A)(1). “Attempted felonious assault is committed when a

person knowingly attempts to cause serious physical harm to another.” State v. Stafford,

8th Dist. Cuyahoga No. 75739, 2000 Ohio App. LEXIS 912, *10 (March 9, 2000), citing

R.C. 2903.11 (A)(1); R.C. 2923.02. “Serious physical harm” is defined as:

         (a) Any mental illness or condition of such gravity as would normally
         require hospitalization or prolonged psychiatric treatment;
         (b) Any physical harm that carries a substantial risk of death;
         (c) Any physical harm that involves some permanent incapacity, whether
         partial or total, or that involves some temporary, substantial incapacity;
       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;
       (e) Any physical harm that involves acute pain of such duration as to result
       in substantial suffering or that involves any degree of prolonged or
       intractable pain.

R.C. 2901.01(A)(5).

       {¶35} Thompson argues that there was insufficient evidence to prove that he

intended to cause serious physical harm. We agree. S.D. testified that Thompson hit

her once on the head. The photographs that were admitted into evidence show a bruised

area on S.D.’s head.     No medical treatment was required.        There was no evidence

tending to show that S.D. would be permanently incapacitated or disfigured, nor that she

underwent substantial pain and suffering as a result of this injury.

       {¶36} Further, there is no evidence that Thompson was trying to cause S.D. serious

physical harm, but that he was prevented from doing so because of an intervening

circumstance. For example, in Stafford, the defendant used both his hands to apply

pressure to the victim’s chin and nose as he sat on her chest. The defendant did not

release the victim until police forced their way into the apartment. We concluded that a

reasonable factfinder could have concluded that the defendant intended to asphyxiate the

victim. Stafford at *12. In that case, but for the intervention of others, the defendant’s

conduct would have resulted in serious physical harm.

       {¶37} In contrast, in the instant case, there were no intervening circumstances

preventing Thompson from carrying out the assault, and yet, his conduct did not cause

S.D. serious physical harm. We conclude that no rational trier of fact could have found
that the essential elements of attempted felonious assault were proven beyond a

reasonable doubt. Accordingly, the trial court erred in denying Thompson’s Crim.R. 29

motion.

       {¶38} But rather than overturn the conviction, we modify the conviction to simple

assault. “[I]t is well established that this court has the authority to reduce a conviction to

that of a lesser included offense when it is supported by the record, rather than ordering

an acquittal or a new trial.”       State v. Addison, 8th Dist. Cuyahoga No. 96514,

2012-Ohio-260, ¶ 32, quoting State v. Reddy, 192 Ohio App.3d 108, 2010-Ohio-5759,

948 N.E.2d 454, ¶ 35 (8th Dist.). Simple assault is a lesser-included offense of felonious

assault. Id. at ¶ 34. We conclude that the record contains sufficient evidence to support

a conviction for simple assault in violation of R.C. 2903.13(A) (“No person shall

knowingly cause or attempt to cause physical harm to another * * *.”). Accordingly, we

modify Thompson’s conviction of attempted felonious assault to a conviction of simple

assault in violation of R.C. 2903.13(A), and we remand for sentencing.

       {¶39} The trial court’s judgment is affirmed in part, modified in part, and

remanded. The trial court’s judgment is modified to reduce the conviction for attempted

felonious assault under R.C. 2923.02 and 2903.11(A)(1) to a violation             for simple

assault under R.C. 2903.13(A).        The case is remanded for the limited purpose of

sentencing consistent with the conviction, as modified.

       It is ordered that appellant and appellee split the costs taxed herein.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

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

Rule 27 of the Rules of Appellate Procedure.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
