State v. CashinState v. Cashin
Rendered on December 8, 2009
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
W. Joseph Edwards, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Appellant, Christopher E. Cashin (“appellant“), filed this appeal seeking reversal of a judgment by the Franklin County Court of Common Pleas convicting him on two charges of gross sexual imposition and one charge each of rape, kidnapping, and felonious assault. For the reasons that follow, we affirm.
{¶3} The next day, P.B. went home and told his mother what had happened. Columbus police were called, and Officer Gregory Kellough responded. Officer Kellough testified that he asked P.B. some limited questions about what had happened, and that it was clear to him from P.B.‘s demeanor that P.B. was nervous and upset. Officer Kellough also testified that while he was at P.B.‘s house, appellant walked up to the house. Upon questioning, appellant told Officer Kellough that he is HIV positive.
{¶4} P.B. was taken to Children‘s Hospital to be examined. Sha Clark, a medical social worker at the hospital, testified that she interviewed P.B. Clark testified that P.B. was very nervous and anxious, and spoke softly. Clark then recounted P.B.‘s description to her of the assault, including his identification of appellant as the perpetrator. Clark testified that she passed the information she had received on to the medical personnel so P.B. could receive treatment.
{¶5} Theresa Warnimont, a nurse at Children‘s Hospital, also testified. She explained the process for dealing with reports of sexual abuse of children and how
{¶6} Raman Tejwani, a forensic scientist with the Columbus police crime lab, testified that he conducted a DNA test on the swab taken from P.B.‘s neck. He stated that the swab tested positive for the presence of saliva, that the major donor for the sample matched P.B.‘s DNA, and that the minor donor matched appellant‘s DNA.
{¶7} Appellant testified on his own behalf at trial. He stated that he was not aware until he went down to the basement that P.B. was sleeping there. He further testified that when he first went to the basement, P.B. appeared to be having a nightmare, and that he woke P.B. up and then rubbed his back until he went back to sleep. He also testified that he then went back upstairs and slept on a couch.
{¶8} The jury convicted appellant on all five counts in the indictment, and further found that the victim was under 13 years of age and that force was used. The trial court imposed a sentence of life imprisonment with parole eligibility after 25 years.
{¶9} Appellant filed this appeal, asserting a single assignment of error:
I. WHEN COUNSEL‘S PERFORMANCE IS DEFICIENT IN THE CONDUCT OF TRIAL COUPLED WITH PREJUDICE INURING TO THE DETRIMENT OF THE APPELLANT, HIS RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL ARE VIOLATED CONTRA THE OHIO AND FEDERAL CONSTITUTIONS.
{¶10} In order to prevail on a claim of ineffective assistance of counsel, appellant must demonstrate that trial counsel‘s representation fell below an objective standard of
{¶11} Appellant argues that his trial counsel‘s conduct was deficient because counsel failed to object to the state‘s introduction of testimony from Clark regarding statements made by P.B. during her interview of him at the hospital. Appellant argues, among other things, that this testimony violated his constitutional right to confront the witnesses against him, citing Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354.
{¶12} In evaluating a claim of ineffective assistance of counsel based on counsel‘s failure to file a motion or make an objection, we must consider whether such an objection would have been meritorious. See State v. Lott (1990), 51 Ohio St.3d 160, 175 (“Lott claims defense counsel should have moved to suppress * * * eyewitness identification of Lott. However, Lott has not demonstrated that the trial court would have granted such a motion.“).
{¶13} The first issue in this case is whether the introduction of Clark‘s testimony regarding her interview with P.B. violated appellant‘s right to confrontation under Crawford. In Crawford, the United States Supreme Court held that the introduction of out-of-court testimonial statements violates the Sixth Amendment‘s Confrontation Clause unless the witness who made the statements was unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine the witness. Crawford at 53-54.
{¶15} In this case, we need not decide whether the statements made by P.B. about which Clark testified were testimonial or nontestimonial in nature. P.B. testified at trial and was therefore subject to cross-examination. When a declarant testifies at trial, the Confrontation Clause is not implicated, and therefore places no constraints on the use of prior testimonial statements. Jordan, citing Crawford at 59, fn. 9.
{¶16} Appellant also argues that Clark‘s testimony regarding the statements made by P.B. during their interview violated constituted inadmissible hearsay, and that counsel was ineffective for failing to object on that basis.
{¶17} The admissibility of statements made by child victims under
{¶18} In this case, appellant does not dispute that some of P.B.‘s statements about which Clark testified were for the purpose of obtaining diagnosis and treatment. Instead, appellant argues that the form of Clark‘s testimony, which was a lengthy narrative, went beyond the scope of the rule‘s exception. However, appellant does not identify any specific examples of testimony that should not have been admitted under the rule, nor does appellant point to any of the factors set forth in Muttart. Thus, the trial court was within its discretion to admit Clark‘s testimony under
{¶19} Finally, appellant argues that his counsel should have objected to Clark‘s testimony regarding the statements made by P.B. during their interview on the grounds that the effect of the testimony was to bolster P.B.‘s credibility with the jury. Appellant
{¶20} However, a review of Clark‘s testimony shows no indication that Clark was testifying as to P.B.‘s veracity. Clark testified as to the substance of the statements made by P.B. during their interview, and about P.B.‘s general demeanor, but did not make any direct statement expressing any opinion about whether P.B.‘s statements were true. Only statements directly supporting the veracity of a child witness are prohibited under Boston. State v. Rosas, 2d Dist. No. 22424, 2009-Ohio-1404, fn. 1. Appellant does not argue that Clark‘s testimony directly attested to P.B.‘s veracity, but instead argues that the entirety of Clark‘s testimony had the effect of bolstering P.B.‘s credibility by repetition of the testimony P.B. had already provided. However, this type of indirect bolstering of a victim‘s credibility is not the same as the direct rendering of an opinion as to a victim‘s veracity that was involved in Boston. Because Clark‘s testimony did not include any expressions of opinion as to whether P.B. was telling the truth, her testimony regarding P.B.‘s statements did not violate Boston, and any attempt to exclude the testimony on that basis would not have been successful.
{¶21} Because it does not appear that any objection made by appellant‘s trial counsel regarding Clark‘s testimony about statements made by P.B. during their interview would have been successful, appellant‘s trial counsel was not ineffective. Consequently, appellant‘s assignment of error is overruled.
Judgment affirmed.
BROWN and TYACK, JJ., concur.
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