STATE OF OHIO, PLAINTIFF-APPELLEE, v. CHRISTOPHER G. COOK, DEFENDANT-APPELLANT.
CASE NO. 14-19-26
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
June 22, 2020
2020-Ohio-3411
Aрpeal from Union County Common Pleas Court Trial Court No. 2017 CR 0249 Judgment Affirmed
APPEARANCES:
Alison Boggs for Appellant
Melissa A. Chase for Appellee
{1} Defendant-appellant, Christopher G. Cook (“Cook“), appeals the July 3, 2019 judgment of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.
{2} In December 2014, Cook‘s son, C.C., was staying with Cook and Cook‘s mother, Patricia Cook (“Patricia“), at Patricia‘s house in Union County. Cook and C.C.‘s mother, Amanda Cook (“Amanda“), had divorced three years earlier, and C.C. was staying with Cook and Patricia to celebrate the Christmas holiday. When C.C. was returned to Amanda on Christmas Eve, he appeared upset. At that time, C.C. told Amanda that he did not want to see Cook anymore because he believed that Cook was dealing drugs.
{3} One month later, in January 2015, C.C. revealed additional information to Amanda about Cook. C.C. told Amanda that Cook had touched him inappropriately. Amanda was also told that Cook paid two women to have sexual intercourse with C.C. The next day, C.C. attempted to jump out of a moving vehicle, prompting Amanda to take C.C. to the emergency room at Memorial Hospital in Marysville, Ohio. There, C.C. told a physician assistant that he was hearing voices and that the voices told him to hurt himself by running into traffic. C.C. also disclosed that Cook had forced him to have sex with two different women. Due to
{4} C.C. was released after a brief stay at the Zanesville facility. Because C.C. had disclosed sexual abuse to Amanda and to the medical staff at Memorial Hospital, he was then taken to the Child Assessment Center at Nationwide Children‘s Hospital (“CAC“) for evaluation and treatment. During an interview at the CAC, C.C. disclosed numerous instances of sexual abuse. He disclosed that, beginning in the fall of 2014, two women, whom he identified as Jessica and Jackie, touched his penis on several occasions. C.C. also stated that Cook made him touch the women‘s breasts and vaginas. According to C.C., these incidents culminated over the course of a weekend in December 2014, when he was forced by Cook to have sexual intercourse with both women. C.C. also disclosed that Cook once touched his penis after he got out of the shower. Finally, C.C. stated that Cook had shown him pornographic videos and that Cook had threatened to kill him and his family if he told anybody about the abuse.
{5} On November 21, 2017, the Union County Grand Jury indicted Cook on nine counts: Counts One and Two of disseminating matter harmful to juveniles in violation of
{6} On June 5, 2018, Cook filed a notice of alibi. (Doc. No. 42). In his notice of alibi, Cook claimed that he “was at the home of, or in the presence of” Patricia from December 19-24, 2014—the time period specified in the original indictment during which Counts One through Six and Count Nine were allegedly committed. (Id.).
{7} On May 13, 2019, the State entered a nolle prosequi with respect to Count Two of the indictment. (Doc. No. 87). That same day, the trial court dismissed Count Two without prejudice. (Doc. No. 88).
{8} A jury trial commenced on May 13, 2019. Cook twice moved for a judgment of acquittal under
{9} A sentencing hearing was held on July 3, 2019. (Doc. No. 104). The trial court sentenced Cook as follows: 12 months in prison on Count One, 25 years to life in prison on Count Three, 48 months in prison on Count Four, 25 years to life in prison on Count Five, 25 years to life in prison on Count Six, and 24 months in prison on Count Nine. (Id.). The trial court ordered that the prison sentences for Counts One, Three, Four, Five, Six, and Nine all be served consecutively for an aggregate term of 82 years to life in prison. (Id.).
{10} Cook filed his notice of appeal on August 2, 2019. (Doc. No. 112). Cook raises seven assignments of error for our review. For the sake of clarity, we begin by addressing Cook‘s second assignment of error, followed by his third assignment of error. Then, we consider Cook‘s first and seventh assignments of error together before turning to Cook‘s fourth assignment of error. Finally, we conclude by separately addressing Cook‘s fifth and sixth assignments of error.
The trial court erred when it permitted hearsay evidence throughout the trial when the declarant was available to testify and did in fact testify.
{11} In his second assignment of error, Cook argues that the trial court erred by admitting various hearsay statements at his trial. Cook focuses on hearsay contained in the testimony of Dustin Ford (“Ford“), a physician assistant who was working in the emergency room at Memorial Hospital in Marysville, Jennifer Sherfield (“Sherfield“), a forensic interviewer and mental health advocate at the CAC, and Dr. Megan Letson (“Dr. Letson“), a doctor working at the CAC. (See Appellant‘s Brief at 5-7). He also points to hearsay contained in the video recording of C.C.‘s forensic interview with Sherfield at the CAC, and he arguably takes issue with hearsay contained in the CAC written report and in C.C.‘s medical rеcords from Memorial Hospital. (See id. at 5-7). In all instances, C.C. is the person who made the out-of-court statements to which Cook now objects. Cook argues that none of C.C.‘s statements is admissible under
{12} “Ordinarily, we review a trial court‘s hearsay rulings for an abuse of discretion.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97, citing State v. Hymore, 9 Ohio St.2d 122, 128 (1967). See HSBC Bank U.S.A., Natl. Assn. v. Gill, 1st Dist. Hamilton No. C-180404, 2019-Ohio-2814, ¶¶ 6-10 (documenting a split between courts of appeals concerning the proper standard of review to apply when reviewing the admission of hearsay but concluding that McKelton and other Supreme Court decisions dictate abuse-of-discretion review). An abuse of discretion is more than a mere error in judgment; it suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{13} Hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{14} As relevant to this case,
{15} Initially, we must address Cook‘s argument that C.C.‘s out-of-court statements are not admissible under
{16} We disagree. “Where the totality of the circumstances fail to demonstrate a lack of reliability or trustworthiness, * * * statements should be admitted if they fall within the hearsay exception, [and] the credibility of the statements may then be evaluated by the trier of fact.” State v. Diaz, 8th Dist. Cuyahoga No. 103878, 2016-Ohio-5523, ¶ 45, quoting In re D.L., 8th Dist. Cuyahoga No. 84643, 2005-Ohio-2320, ¶ 28. In addition, “a court may admit a child‘s statements under
{17} Moreover, there is nothing in the record casting doubt on C.C.‘s motivations to make these statements. Amanda denied that she pressured C.C. to make allegations against Cook, and there is nothing in the record suggesting that Amanda or C.C. had a reason to fabricate allegations against Cook. (See May 13, 2019 Tr., Vol. II, at 160). Specifically, the State presented evidence establishing that Amanda had full custody of C.C., that Cook did not have any court-ordered parenting time with C.C., and that Cook had not petitioned the court to change the custody arrangement. (Id. at 136-137, 160); (May 14, 2019 Tr. at 116); (State‘s Ex. 1). Therefore, the circumstances fail to demonstrate a lack of reliability and trustworthiness. Provided that C.C.‘s statements satisfy the requirements of
{18} We now consider whether the trial court erred by permitting the admission of C.C.‘s out-of-court statements, beginning with the trial court‘s decision to allow Ford to testify about what C.C. disclosed during the examination at Memorial Hospital. Ford testified that on January 16, 2015, he was working as a physician assistant in the emergency department of Memorial Hospital in Marysville. (May 13, 2019 Tr., Vol. II, at 178). He stated that he was responsible for performing the initial evaluation of C.C. and collecting C.C.‘s medical history when C.C. appeared for treatment. (Id. at 178-181). Ford testified that the medical history is a “very important” part of a patient‘s medical diagnosis and treatment. (Id. at 180). Ford stated that C.C.‘s “first chief complaint was suicidal ideation which * * * means that they have the intent to cause harm specifically to themselves.” (Id. at 181). He testified that he had to make sure that there would not “be anything else that could be causing [C.C.] to have suicidal ideation, including infection or some type of illness that could cause harm to their mental status.” (Id.). Ford stated that when he asked C.C. about his desire to harm himself,
{19} We conclude that the trial court did not abuse its discretion by allowing Ford to testify regarding C.C.‘s statements because C.C.‘s statements were made for purposes of medical diagnosis or treatment and were pertinent to C.C.‘s diagnosis or treatment. Amanda brought C.C. to the emergency room of Memorial Hospital after he threatened to harm himself, and he was interviewed by Ford, a medical professional, in a hospital setting. Ford posed questions to C.C. that were designed to help Ford and other medical professionals identify the cause of C.C.‘s
{20} In addition, C.C.‘s statements were pertinent to diagnosing the cause of his suicidal ideations. As Ford‘s testimony suggests, there are many reasons that
{21} Having concluded that the trial court did not abuse its discretion by admitting the hearsay contained in Ford‘s testimony, we next consider whether the trial court erred by admitting any hearsay contained in Sherfield‘s testimony, in Dr. Letson‘s testimony, in the video recording of Sherfield‘s interview with C.C. at the CAC, in the CAC written report, or in C.C.‘s medical records from Memorial Hospital. At the outset, we note that during the course of their testimonies, Sherfield and Dr. Letson did not testify concerning anything C.C. said to them about the
{22} Furthermore, we note that Cook failed to object when the video recording of Sherfield‘s interview with C.C. at the CAC was played for the jury, and he failed to object when the State moved to admit the video recording of the CAC interview, the CAC written report, and C.C.‘s medical records from Memorial Hospital.
{23} Because Cook failed to object to the admission of the hearsay embedded in the aforementioned documentary еvidence, we review for plain error. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶ 72, citing State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 66. We recognize plain error “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.‘” State v. Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. For plain error to apply, the trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have been affected a substantial right. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Under the plain error standard, the appellant must demonstrate that the outcome of his trial would clearly have been different but for the trial court‘s errors. State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v. Moreland, 50 Ohio St.3d 58 (1990).
{25} C.C. then began to detail various instances of sexual abuse. He disclosed that Cook “made [him] touch Jessica‘s boobs and her vagina” and that this was what he was referring to when he said that Jessica raped him. (Id.). C.C. stated that “it happened quite a few times.” (Id.). Sherfield then asked C.C. to tell her “everything about the last time that something happened with Jessica.” (Id.). C.C. said that he was “raped in December” during a weekend approximately two weeks
{26} According to C.C., after he accepted Cook‘s offer of $100, Jessica “started humping [him].” (State‘s Ex. 4). Jessica “was on the top, and [he] was on the bottom.” (Id.). C.C. described his use of the word “humping” as signifying that Jessica “was going up/down on our privates.” (Id.). He stated that his clothes were off during this encounter and that while Jessica was going “up/down on [his] privates,” his “wiener” was touching the inside of her vagina. (Id.). C.C. said that while this was happening with Jessica, Cook was recording the incident with his phone. (Id.). According to C.C., he “kept on telling her to stop. And [Cook] kept on saying ‘Keep up.‘” (Id.).
{28} C.C. then discussed incidents involving Jackie. C.C. disclosed that Jackie “raped [him] in December, [on] the same weekend” as Jessica. (State‘s Ex. 4). He stated that “the day after Jessica touched [him] and raped [him], Jackie pulled off her clothes in front of [him] and started humping [him] with [his] clothes on.” (Id.). According to C.C., Jackie then undressed him and had sex with him. (Id.). He said that this encounter took place in Cook‘s bedroom at Patricia‘s house. (Id.). C.C. stated that Jackie was on top, that he was on bottom, and that her “boobs [were] to [his] chest and her vagina [was] to [his] wiener.” (Id.). He said that his “wiener” was inside of Jackie‘s vagina. (Id.). C.C. stated that Cook was not present during this incident and that he did not know whether Cook had promised to pay Jackie. (Id.).
{29} C.C. then disclosed that sometime prior to Christmas Eve, Cook had offered to pay him $300 to touch Jackie‘s breasts and vagina. (Id.). He said that this encounter happened at Jackie‘s house. (Id.). He stated that Cook made him “rub [Jackie‘s] vagina all around” with his hand and that Cook made him “do things
{30} Finally, C.C. stated that Cook showed him a “porn video” on his phone. (Id.). He said that the video depicted one woman “shoving” objects “up her butt,” including a ball and a glass object that looked “like a missile,” which “somehow she squeezed * * * out through her butt.” (Id.). C.C. said that another woman and a man then entered the frame and that the man “started having anal sex” with one of the women. (Id.). He also said that the man “shoved his wiener in a girl‘s mouth.” (Id.).
{31} The CAC written report contains the notes Sherfield made during her interview with C.C. The statements in Sherfield‘s report that qualify as hearsay are, for the most part, identical to the statements C.C. made in the recorded interview. (See State‘s Exs. 4, 6). The CAC written report also contains Dr. Letson‘s comments, along with the comments of her fellow, Dr. Melissa Jones (“Dr. Jones“). (State‘s Ex. 6). To the extent that these comments address C.C.‘s disclosures, they
{32} We conclude that the trial court did not commit plain error by permitting the admission of the recorded interview or the CAC written report because the hearsay contained within these items of evidence is admissible under
{33} In addition, the statements C.C. made to Sherfield during his forensic interview are admissible under
{¶34} Moreover, C.C.‘s disclosures during the interview were reasonably pertinent to his diagnosis or treatment.
[T]he Supreme Court has “classified information regarding the identity of the perpetrator, the type of abuse аlleged, the identification of the areas where the child had been touched and the body parts of the perpetrator that had touched her, as well as the time frame of the abuse, as statements for diagnosis and treatment because that information allowed the doctor or nurse to determine whether to test the child for sexually transmitted diseases, and to identify any trauma or injury sustained during the alleged abuse.”
State v. C.C.B., 10th Dist. Franklin No. 18AP-782, 2019-Ohio-3631, ¶ 36, quoting In re C.S., 10th Dist. Franklin No. 11AP-667, 2012-Ohio-2988, ¶ 14, citing State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶¶ 32, 38. Concerning the identity of the perpetrator, the identification of the perpetrator is pertinent to diagnosis or treatment because the identity of the perpetrator is “particularly relevant” to determining whether the child victim could have continued exposure to the perpetrator and whether the child might have contracted a sexually transmitted disease. Dever, 64 Ohio St.3d at 413, fn. 8. The identity of the perpetrator is also relevant to determining the psychological effects on the child. Id. Finally, to the extent that exposure to pornography can be considered a form of sexual abuse, statements relating to a child‘s exposure to pornography can be relevant to the child‘s treatment or diagnosis. See State v. Watts, 10th Dist. Franklin No. 15AP-951, 2016-Ohio-5386, ¶ 23.
{¶35} Here, C.C.‘s disclosures included the identities of his abusers, explanations of the extent of Cook‘s involvement in the abuse, identifications of the parts of his body that were touched, identifications of the parts of his abusers’ bodies that he touched, the number of times he was abused, the locations where he was abused, the approximate time frame in which he was abused, the fact that he had been exposed to pornography, and the fact that he had been recorded engaging in sex acts. All of these disclosures were pertinent to diagnosing C.C., providing him
{¶36} Finally, we conclude that the trial court did not commit plain error by allowing the admission of C.C.‘s medical records from Memorial Hospital. In these records, Ford documented what C.C. told him during the course of the initial evaluation. (See State‘s Ex. 8). Ford‘s testimony covered these same statements. Because we concluded that the trial court did not abuse its discretion by allowing Ford to testify to what C.C. told him during the initial evaluation, we cannot conclude that the trial court plainly erred by permitting the admission of a document containing substantially the same statements.
{¶37} Cook‘s second assignment of error is overruled.
Assignment of Error No. III
The trial court erred when it would not allow a lay witness opinion testimony.
{¶38} In his third assignment of error, Cook argues that the trial court abused its discretion by refusing to permit Patricia to offer her opinion on whether she believed C.C.‘s allegations. He contends that
{¶39} “An abuse of discretion standard applies to a trial court‘s decision to admit testimony under
{¶40}
{¶41} We conclude that the trial court did not abuse its discretion by sustaining the State‘s objections and preventing Patricia from answering Cook‘s trial counsel‘s questions. Regardless of how Cook describes his trial counsel‘s questions or the opinions he expected Patricia to express, it is evident that his trial counsel‘s questions were designed to elicit Patricia‘s opinion about the credibility of C.C., who had earlier testified against Cook, and accordingly, Cook‘s trial counsel‘s questions were improper. “In our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.” Smith at ¶ 46, quoting State v. Eastham, 39 Ohio St.3d 307, 312 (1988) (Brown, J., concurring). “Opinion testimony regarding another witness‘s credibility ‘infringe[s] upon the role of the fact finder, who is charged with making determinations of veracity and credibility.‘” Id., quoting Eastham at 312 (Brown, J., concurring). “Thus, ‘the opinion of a witness as to whether another witness is being truthful is inadmissible.‘” Id., quoting State v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 38, citing State v. Miller, 2d Dist. Montgomery No. 18102, 2001 WL 62793 (Jan. 26, 2001). It is possible
{¶42} Cook‘s third assignment of error is overruled.
Assignment of Error No. I
The jury lost its way when reviewing the evidence, resulting in a verdict that is against the manifest weight of the evidence and sufficiency of the evidence.
Assignment of Error No. VII
The trial court erred when it overruled appellant‘s motion for a Criminal Rule 29 acquittal.
{¶43} In his first and seventh assignments of error, Cook argues that because the State failed to present evidence sufficient to establish his guilt on each of the six counts for which he was convicted, the trial court erred by denying his
{¶45} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Consequently, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.“), citing Thompkins at 386. Because the purpose of a
{¶46} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of 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.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶47} In this case, Cook was convicted of six offenses. With respect to three of these offenses—disseminating matter harmful to juveniles, gross sexual imposition, and intimidation of an attorney, victim, or witness in a criminal case—Cook was convicted as the principal offender.
{¶48} The offense of disseminating matter harmful to juveniles is codified in
that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sado-masochistic abuse in any form to which:
- The material or performance, when considered as a whole, appeals to the prurient interest of juveniles in sex[;]
The material or performance is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for juveniles[; and] - The material or performance, when considered as a whole, lacks serious literary, artistic, political, and scientific values for juveniles.
{¶49} The offense of gross sexual imposition is codified in
{¶50} The offense of intimidation of an attorney, victim, or witness in a criminal case is codified in
{¶51} With respect to the other three counts for which Cook was convicted, Cook was convicted of three counts of complicity to the rapes of C.C. The offense of rape is codified in
{¶52}
To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2) , the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime.
State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. ““‘Evidence of aiding and abetting may be shown by either direct or circumstantial evidence, and participation in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed.““” State v. Wright, 3d Dist. Hardin No. 6-15-14, 2016-Ohio-5465, ¶ 9, quoting State v. Rowe, 3d Dist. Seneca No. 13-10-14, 2011-Ohio-5739, ¶ 32, quoting State v. Gragg, 173 Ohio App.3d 270, 2007-Ohio-4731, ¶ 21 (12th Dist.).
{¶53} The offenses of which Cook was convicted involve, to some extent, three different degrees of culpable mental state—purpose, knowledge, and recklessness. “A person acts purposely when it is the person‘s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender‘s specific intention to engage in conduct of that nature.”
{¶54} In addition to the evidence referenced in our analysis of Cook‘s second assignment of error, the following evidence was presented at Cook‘s trial. Amanda was the State‘s first witness. Amanda first identified State‘s Exhibit 2 as a certified copy of C.C.‘s birth certificate. (May 13, 2019 Tr., Vol. II, at 138-139); (State‘s Ex. 2). C.C.‘s birth certificate shows that he was ten years old in September 2014 through December 2014. (State‘s Ex. 2). Amanda testified that although Cook did not have court-ordered rights to parenting time with C.C., she entered into an
{¶55} She testified that she first became aware of potential problems between C.C. and Cook when, on Christmas Eve, C.C. stated that he did not want to have further visits with Cook because he believed thаt Cook was a drug dealer. (Id. at 144). Amanda testified that she then reached out to law enforcement and an investigation was opened. (Id. at 145-146). According to Amanda, C.C. next disclosed problems with Cook in January 2015 when she was driving him to receive infusion treatments for his juvenile arthritis. (Id. at 146-148). She testified that C.C. said that Cook had touched him and paid two women to have sex with him. (Id. at 146-148). Amanda stated that she responded to C.C.‘s comments by again reaching out to law enforcement and by scheduling the evaluation at the CAC. (Id. at 148-149). Moreover, Amanda testified that, the day after he disclosed the alleged sex abuse, C.C. tried to jump out of a moving vehicle. (Id. at 149-150). She stated that she took him to Memorial Hospital for evaluation, where he was then transferred to the Zanesville facility. (Id. at 149-150).
{¶57} Concerning C.C.‘s mental health, Amanda testified that C.C. was diagnosed with oppositional defiant disorder at the age of three, but that C.C. did not experience auditory hallucinations at that age. (May 13, 2019 Tr., Vol. II, at 161). Amanda also stated that C.C. was admitted to the Zanesville mental health facility on two other occasions: once in the beginning of September 2014 and once at the end of January 2015 following the interview at the CAC. (Id. at 162-165). She testified that C.C. was placed on medication after being discharged from the facility in September and that he did not respond well to the medication. (Id. at 162-163). She said that C.C. was placed on different medications beginning in December 2014 but that he was taken off medication completely when he was first admitted into the Zanesville facility in January 2015. (Id. at 167). Amandа also testified that when C.C. was first admitted into the facility in January 2015, he said that he was hearing voices and being chased by a tall black man. (Id. at 163).
{¶58} In addition, Lieutenant Michael Justice (“Lieutenant Justice“) of the Union County Sheriff‘s Office testified that he was present during the execution of a search warrant at Patricia‘s house, which was where Cook was staying in January 2015. (May 13, 2019 Tr., Vol. II, at 233). He testified that one of the items seized during the search was a cell phone, which was later determined to belong to Cook. (Id. at 236-237). Lieutenant Justice stated that he extracted and reviewed video files that were stored on the SD card in Cook‘s cell phone. (Id. at 241-242). He also testified that two prescription pill bottles were recovered from Patricia‘s house. (Id. at 243-244). He stated that the prescriptions were in the name of “Jacqueline Tackett” and that the bottles said they were filled on November 8, 2014 and December 31, 2014. (Id. at 243-244); (State‘s Exs. 16, 17). Furthermore, Lieutenant Justice testified that, during the search, he located a Crown Royal bag filled with drug paraphernalia. (May 13, 2019 Tr., Vol. II, at 244-245); (State‘s Ex. 18). Lieutenant Justice stated that he did not know when the prescription bottles arrived at Patricia‘s house or who brought them there and that he could not determine with certainty who owned the Crown Royal bag. (May 13, 2019 Tr., Vol. II, at 249-250, 253-254).
{¶60} C.C. then testified that Cook “touched [him] when [he] was getting out of the shower” at Patricia‘s house. (Id. at 20-21). He said that Cook touched him for “ten seconds, maybe,” that he did not remember if Cook said anything to him during the incident, and that after Cook “let go,” nothing else happened. (Id. at 22).
{¶61} C.C. also testified about the series of incidents with Jackie. He stated that Jackie lived in an apartment in Kenton in the fall and winter of 2014 and that Cook took him to Jackie‘s apartment a number of times, though he could not
{¶62} In addition, C.C. stated that he was shown a video by Cook on Cook‘s cell phone depicting a “woman shoving a ball in her butt hole.” (May 14, 2019 Tr. at 28). He testified that the video also showed the woman “us[ing] a glass dildo” and “shov[ing] it up her butt hole.” (Id.). C.C. stated that he did not remember how long the video was or whether he watched it from beginning to end. (Id.).
{¶63} Finally, C.C. testified that Cook threatened to kill him and his entire family. (Id. at 29). The following exchange then took place:
[C.C.]: Since I was like four.
[The State]: Since you were four years old?
[C.C.]: Yeah, but I think then he was joking. Something about like when he was saying it changed when I started like nine.
[The State]: And what changed? Can you tell us?
[C.C.]: He just seemed like he was more serious.
[The State]: In 2014, what, if anything, did he say to you about telling?
[C.C.]: He said he‘d kill my entire family.
[The State]: Did you believe him?
[C.C.]: Yes.
(Id.).
{64} On cross-examination, C.C. testified that though he told Amanda on Christmas Eve that he thought Cook was a drug dealer, he did not tell anybody, including Amanda, Patricia, or law enforcement officers, about the abuse until January 2015. (Id. at 36, 55-56). He stated that although he went back to Patricia‘s house after he had sex with Jessica, he did not tell Patricia, and he explained that he did not tell Patricia because of Cook‘s threats. (Id. at 40-41). Similarly, C.C.
{65} Additionally, C.C. stated that Jessica and Jackie were present when Cook threatened to “kill everyone” and that Cook made the threats “right after [they] got done having sex.” (May 14, 2019 Tr. at 47). He confirmed that Cook had been telling him things like that since he was four years old but that when Cook threatened him in 2014, he believed Cook was being sincere. (Id. at 48). C.C. acknowledged that he did not tell Amanda or Patricia about the threats. (Id.).
{66} C.C. was then questioned about whether he remembered Amanda telling Cook that he was not going to have any further visitation with C.C. C.C. testified that he remembered coming back from Jessica‘s with Cook and Patricia on Christmas Eve 2014. (Id. at 50). He also remembered that when he left Cook and Patricia to go with Amanda, Amanda was upset because Cook had not dropped off C.C. earlier in the day. (Id. at 51). However, he could not recall whether Amanda told Cook anything about cutting off visitations. (Id.).
{67} Regarding his history of mental health issues, C.C. testified that he first began hearing voices at age four, but that he did not tell Amanda or anyone else. (Id. at 56-57). He stated that he was hearing voices in September 2014 when he was first admitted into the mental health facility in Zanesville, and he
{68} Furthermore, C.C. acknowledged that he continued to call and visit with Cook even after the abuse started and that he called or texted Cook at least once after Christmas Eve 2014. (May 14, 2019 Tr. at 65-66). However, C.C. could not remember whether he called Cook to request visitation. (Id. at 66).
{69} Finally, C.C. testified that he remembered going to the CAC for the interview, but that he did not remember the interview itself. (Id. at 61). He said that he viewed the video recording of the interview a couple days before trial, though he still did not remember the interview. (Id. at 62). When Cook‘s trial counsel asked him whether “the only thing [he] remember[ed] * * * is what [he had] seen on the tape of the interview,” C.C. responded that he “remember[ed] some of it just not specific days and when it was.” (Id. at 68). He admitted that some of his testimony might not be completely accurate. (Id.).
{70} On redirect examination, C.C. testified that although he was incapable of remembering all of the details of the alleged abuse, he had done “very well” in telling the truth in his testimony. (Id. at 70). He also reiterated that he did not tell
{71} The State‘s next witness, Cindy Kuhr (“Kuhr“), a Victim‘s Specialist Consultant for the Bureau of Criminal Investigation, testified as an expert on the subject of child sexual abuse. (May 14, 2019 Tr. at 73, 78). Kuhr first testified about the phenomenon of delayed reporting of sexual abuse. (Id. at 78-81). She stated that “the majority of the time there is a delay in disclosure” of sexual abuse and that there can be a number of causes for delayed reporting, such as the existence of a close relationship between the abuser and the victim or the victim‘s fear of physical retaliation by the abuser. (Id. at 79-80). Kuhr testified that many children who delay reporting sexual abuse also disclose sexual abuse in increments instead of disclosing all instances of abuse at once. (Id. at 81-82). In addition, Kuhr stated that although children have been known to fabricate allegations of sexual abuse, she had not personally dealt with false accusations. (Id. at 88). She noted that when dealing with allegations of sexual abuse, investigators explore whether the child has any motive to make a false accusation. (Id.).
{72} Kuhr also testified about some of the behavioral indicators of child sexual abuse. She stated that age-inappropriate information about sexual activity might indicate that a child has been sexually abused. (Id. at 84). She also noted that sexually-abused children often act out physically and sexually toward others, that
***
{73} In addition, Kuhr testified about her experience with children who testify in court about sexual abuse. She stated that it is “usually very, very difficult for them to testify in the first place” and that “testifying about traumatic or embarrassing information for them is very difficult * * * [and] they may shut down.” (Id. at 87). She testified that some children “will just give some of the basic information” while others are “able to testify * * * clearly from beginning to end as they did during their disclosure.” (Id. at 87-88). Finally, elsewhere in her testimony, Kuhr testified that trauma affects memory and that the trauma of an event “can impact the memory and make individuals * * * kind of forget certain things around the time of a traumatic experience and only remember the important details of something or * * * sensory things * * *.” (Id. at 86-87).
{74} On cross-examination, Kuhr acknowledged that she never spoke to C.C., that she was not aware of the details of C.C.‘s mental health history, and that she was not present when C.C. testified. (May 14, 2019 Tr. at 90-92). She clarified that she was offering “educational witness testimony” about child sex abuse cases generally rather than testimony about C.C.‘s case specifically. (Id. at 91-92).
{75} The State‘s final witness was Deputy Kelly Nawman (“Deputy Nawman“) of the Union County Sheriff‘s Office. (Id. at 103). Deputy Nawman
{76} Deputy Nawman testified that she interviewed Cook during the course of the investigation. She stated that Cook denied showing pornographic images to C.C. but that Cook admitted that C.C. once viewed an image depicting a woman‘s breasts when a text message containing the image was sent to Cook‘s phone while C.C. was using the phone to play a game. (Id. at 113). Deputy Nawman also testified that Cook told her that C.C. had been to Jessica‘s house with him and Patricia and that C.C. had only been inside of Jessica‘s house long enough to use the restroom. (Id. at 114). She stated that Cook said that C.C. had also been to Jackie‘s house once with Cook and Patricia and once with Cook and Cook‘s other children. (Id. at 113). According to Deputy Nawman, Cook also told her that Jackie had been to Patricia‘s house on one or two occasions, most recently in June or July of 2014. (Id. at 114). With respect to C.C.‘s allegations, Deputy Nawman testified that Cook said that Amanda “must have put [C.C.] up to it because he had filed for full custody.” (Id. at 116). However, she stated that she was able to determine that Cook “had not filed for anything.” (Id.).
{78} On cross-examination, Dеputy Nawman testified that, in January 2015, she did not talk to C.C. about the alleged sexual abuse because he was admitted to the mental health facility in Zanesville. (May 14, 2019 Tr. at 126-127). She also stated that C.C. never gave a written statement. (Id. at 127). Furthermore, Deputy Nawman testified that Jessica and Jackie both denied C.C.‘s accusations when they were interviewed. (Id. at 129-130). Finally, she stated that although other pornographic videos were discovered on Cook‘s cell phone, no videos were recovered depicting C.C. engaging in sex acts with Jessica, Jackie, or any other person. (Id. at 131).
{79} Patricia was Cook‘s only witness. Patricia testified that Cook was living with her during 2014 and that C.C. would visit often between September 2014 and December 2014. (Id. at 163-164). She stated that she had a close relationship with C.C. and that he would tell her when things were bothering him. (Id. at 165).
{80} Additionally, Patricia stated that she had been to Jessica‘s house with Cook and C.C., but she denied that she ever went to Hardin County with Cook and C.C. in 2014. (Id. at 166, 168). Concerning whether Jessica or Jackie ever visited her house in Union County, Patricia testified that Jessica never visited her house but that Jackie came to her house twice in the summer of 2014. (Id. at 169). She stated that Jackie never spent the night at her house and that she was not aware of any times that Jackie was alone with C.C. (Id. at 170). Patricia testified that she did not generally allow Cook to have female friends at her house. (Id. at 168-169). Furthermore, Patricia doubted that Cook snuck women into her house after she went to bed. (Id. at 170).
{81} Patricia also testified about Cook‘s access to her car and whether Cook could have taken C.C. somewhere without her knowledge. She testified that when C.C. visited her and Cook around Christmas 2014, Cook never left in the car alone with C.C. (May 14, 2019 Tr. at 168). Patricia stated that she always accompanied Cook and C.C. during car trips during this period. (Id.). Patricia also testified more broadly about Cook‘s use of her car. She insistеd that if Cook “had drove [her] car, [she] was with him.” (Id. at 164-165). Patricia also stressed that during visitations, Cook and C.C. never left together in her vehicle without her. (Id. at 166). Finally,
{82} On cross-examination, Patricia reiterated that, in 2014, whenever Cook left her house, she was with him. (Id. at 178-179). She also confirmed that she never went to Hardin County with Cook in 2014, that Jackie came to her house twice during the summer of 2014, and that Jackie never stayed overnight at the house. (Id. at 179-180). While Patricia testified that none of Jackie‘s personal belongings should have been at her house, she could not explain why State‘s Exhibits 16 and 17, two prescription pill bottles in Jackie‘s name, were found in her house. (Id. at 180, 182-184). She stated that Jackie had only been in the house once during the summer of 2014 and that she was “positive” that Jackie was not in her house in November 2014 or December 2014—the months that the prescriptions were filled. (Id. at 182-184).
{83} On redirect examination, Patricia testified that the only time that Jackie came into her house, Jackie came “[j]ust into the living room and, basically, in and right back out.” (Id. at 187). She also stated that Cook had not told her about any other times that Jackie came to the house. (Id.).
{84} We begin with Cook‘s contention that his convictions are not supported by sufficient evidence. Initially, we note that under his first and seventh assignments of error, Cook‘s only argument specifically regarding the sufficiency
{85} Other than this brief argument, the premise of which we have already rejected, Cook does not actually challenge the sufficiency of the evidence supporting his convictions. Cook does not make any argument that the State‘s evidence is insufficient to establish any element of any of the offenses for which he was convicted. Instead, Cook attacks C.C.‘s credibility by pointing to contradictions between C.C.‘s testimony and his out-of-court statements and highlighting C.C.‘s inability to remember all of the details of the alleged abuse. (Id. at 4, 21). These arguments do not challenge the sufficiency of the evidence; rather, they challenge the weight of the evidence. See In re T.L., 3d Dist. Allen No. 1-15-24, 2016-Ohio-252, ¶ 24. Nevertheless, regardless of whether Cook properly challenged the sufficiency of the evidence, we are satisfied that the State produced evidence sufficient to prove beyond a reasonable doubt each element of each offense for which Cook was convicted. Accordingly, we conclude that Cook‘s convictions are supported by sufficient evidence and that the trial court did not err by denying Cook‘s
{87} Here, the State offered evidence by way of Kuhr‘s testimony to help explain why C.C.‘s trial testimony might be inconsistent with certain elements of his earlier disclosures and why C.C. might not be able to recall all of the details he divulged in 2015. Cook characterizes Kuhr as a “clean-up batter” who “was permitted to tell the jury that it was okay to conclude that C.C.‘s testimony was not dependable” and that “its inconsistencies are understandable and almost expected.” (Appellant‘s Brief at 4). He claims that with Kuhr‘s testimony, the jury could disregard the issues with C.C.‘s testimony and find him credible “because a child victim of sexual abuse would never make this kind of stuff up.” (Id.).
{88} Yet, despite Cook‘s objections, we see no issue with Kuhr‘s testimony. In child-sex-abuse cases, expert witnesses like Kuhr routinely testify to matters such as delayed disclosure of child sexual abuse, recantation of allegations of sexual abuse, and inconsistent or contradictory recollections of incidents of sexual abuse. See, e.g., State v. Stowers, 81 Ohio St.3d 260, 263 (1998) (noting that expert testimony concerning recantation and delayed disclosure “is permitted to counterbalance the trier of fact‘s natural tendency to assess recantation and delayed disclosure as weighing against the believability and truthfulness of the witness“). The jury was aware that Kuhr was testifying about child sexual abuse cases
{89} Moreover, the State presented evidence other than C.C.‘s testimony to establish Cook‘s guilt, most notably the out-of-court statements C.C. made to Ford, Sherfield, and Drs. Jones and Letson in 2015. Cook suggests throughout his appellate brief that C.C.‘s out-of-court statements are untrustworthy due to the psychological problems he was experiencing around the time he made the statements. However, the jury was well aware of the mental issues that C.C. was suffering from around the time he made the statements, and it could consider these issues in determining what weight to give to C.C.‘s out-of-court statements. On this record, if the jury gave C.C.‘s out-of-court statements decisive weight, we cannot conclude that it was mistaken to do so.
{90} Therefore, having weighed the evidence and all reasonable inferences, and considering the credibility of the witnesses, we cannot conclude that the jury lost its way and created such a manifest miscarriage of justice that Cook‘s convictions must be reversed.
{91} Cook‘s first and seventh assignments of error are overruled.
The trial court erred when it amended the indictment regarding substantive issues that are not permitted to be amended by Criminal Rule 7.
{92} In his fourth assignment of error, Cook argues that the trial court erred by amending the indictment. Cook argues that the amendments were not permissible under
{93} ”
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, 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 chаrged. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint 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 clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in 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.
”
{94} However, where an amendment does not change the name or identity of the offense charged, we review a trial court‘s decision to allow a
{95} In this case, the amendments changed the indictment‘s allegations of the venue where some of the offenses were allegedly committed and the time frame during which the offenses were allegedly committed. Generally, amending an indictment‘s allegations of venue or of the date or time of an offense does not change the name or identity of the crime charged. See Shockey at ¶ 8; State v. Buchanan, 8th Dist. Cuyahoga No. 104500, 2017-Ohio-1361, ¶¶ 19, 22; State v. Pheanis, 2d Dist. Montgomery No. 26560, 2015-Ohio-5015, ¶ 24, citing State v. Williams, 53 Ohio App.3d 1, 5 (10th Dist.1988); State v. Collinsworth, 12th Dist. Brown No. CA2003-10-012, 2004-Ohio-5902, ¶ 24. Therefore, the amendments in this case were permissible under
{97} Finally, irrespective of whether the trial court erred by allowing the amendments, we fail to see how Cook was prejudiced. Cook argues that the expansion of the time frame in which the offenses were allegedly committed completely undermined his alibi defense. (Appellant‘s Brief at 11). However, Patricia, Cook‘s alibi witness, offered testimony that, in effect, provided Cook with
{98} Cook‘s fourth assignment of error is overruled.
Assignment of Error No. V
Appellant was deprived effective assistance of counsel resulting in appellant not receiving a fair trial.
{99} In his fifth assignment of error, Cook argues that he received ineffective assistance of counsel. Cook sorts his trial counsel‘s alleged deficiencies
{100} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a substantial violation of counsel‘s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).
{102} We start with the supposed deficiencies of Cook‘s trial counsel that Cook lumps into the “failure to challenge expert witness” category. Cook argues that his trial counsel acted unreasonably by not attempting to disqualify Kuhr as an expert witness via pretrial motion. He contends that his trial counsel was “on notice through discovery that the State intended to call an expert witness who would testify to the heart of the matter” and that his trial counsel “owed [it to him] * * * to try and challenge the qualifications of the expert prior to trial * * *.” (Appellant‘s Brief at 13). Cook also claims that his trial counsel was ineffective because he “made no attempt to challenge [Kuhr‘s] information and ultimate qualification” at trial. (Id.).
{103} For purposes of this category of purported unprofessional error, we assume without deciding that Cook‘s trial counsel‘s failure to challenge Kuhr‘s qualifications was unreasonable under the circumstances. Nevertheless, we conclude that Cook has not demonstrated that he was prejudiced by his trial counsel‘s failure to question Kuhr‘s qualifications because Kuhr was manifestly qualified to testify as an expert on the subject of child sexual abuse.
{¶106} With respect to the supposed deficiencies contained in this category, we conclude that Cook‘s claim of ineffective assistance of counsel fails because he has not established that his trial counsel‘s performance was deficient or unreasonable under the circumstances. Cook has not demonstrated that his trial counsel actually failed to attempt to secure an expert witness to testify on his behalf. He notes that the record does not contain any motion showing that his trial counsel attempted to procure the services of an opposing expert witness. However, the absence of any such motion is equally consistent with a finding that Cook‘s trial
{¶107} Finally, because they involve similar issues, we address the “failures to object” and “failure to object to improper character evidence” categories together. In the “failures to object” category, Cook takes issue with his trial counsel‘s failure
{¶108} With respect to many of these instances of allegedly deficient performance on the part of Cook‘s trial counsel, we can reject Cook‘s contentions of ineffective assistance of counsel with little difficulty. First, Cook takes exception to his trial counsel‘s failure to object to two hearsay statements contained in Amanda‘s testimony—statements C.C. made to Amanda about Cook being a drug dealer and about the sexual abuse allegedly perpetrated by Cook, Jessica, and Jackie. However, Cook‘s trial counsel did object when Amanda testified that C.C. told her that Cook touched him. (May 13, 2019 Tr., Vol. II, at 146). Although the trial court ultimately overruled the objection and allowed Amanda to complete her testimony, the objection led the trial court to give the jury a limiting instruction. (Id. at 147-148). Thus, concerning this portion of Amanda‘s testimony, Cook‘s trial counsel performed exactly as expected of competent counsel.
{¶110} Similarly, we cannot conclude that Cook‘s trial counsel was deficient for failing to object to the admission of the sexual-abuse related hearsay contained in the video recording of C.C.‘s interview at the CAC or in the CAC written report. As with the hearsay statements contained in Ford‘s testimony, we have previously concluded that C.C.‘s statements concerning the circumstances of the sexual abuse and the identities of his abusers are admissible under
{¶111} Yet, as Cook observes, C.C. made other statements to Sherfield during the course of the forensic interview at the CAC, and some of these statements do not as neatly satisfy the requirements of
{¶112} We disagree. First, we note that while Cook‘s trial counsel did not object when Amanda testified about Cook‘s prior imprisonment, the trial court eventually instructed the jury to disregard that part of Amanda‘s testimony. (May 13, 2019 Tr., Vol. II, at 173-174). “The jury is presumed to follow the trial court‘s instructions.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 103, citing State v. Loza, 71 Ohio St.3d 61, 75 (1994). Because there is nothing in the record suggesting that the jury ignored the trial court‘s instruction, we cannot conclude that this portion of Amanda‘s testimony contributed to the jury rendering a verdict it otherwise would not have reached.
{¶113} Additionally, we do not believe that Cook‘s trial counsel‘s failure to object to the admission of State‘s Exhibit 18 amounts to deficient performance. During his testimony, Lieutenant Justice began describing the Crown Royal bag and its contents before Cook‘s trial counsel objected. (May 13, 2019 Tr., Vol. II, at 250). Although the trial court initially sustained the objection, it eventually reversed course and allowed Detective Justice to testify about the contents of the bag. (Id. at 245-247). Given that the trial court overruled Cook‘s trial counsel‘s objection to Lieutenant Justice‘s thorough description of the Crown Royal bag and its contents, an objection to the admission of the Crown Royal bag likely would have been futile,
{¶114} Moreover, even assuming that Cook‘s trial counsel performed deficiently by failing to object to the admission of evidence relating to Cook‘s prior criminal history and alleged involvement with drugs and that this evidence was admitted in error, in light of the considerable admissible evidence of Cook‘s guilt, we do not believe that there is a reasonable probability that the result of Cook‘s trial would have been different if this evidence had not been admitted. Cook has repeatedly questioned the veracity of C.C.‘s claims of sexual abuse and attacked his credibility, and at trial, C.C. was either unable to remember all of the details of the alleged sexual abuse or his descriptions of the incidents differed somewhat from the accounts he gave in 2015. Yet, C.C. was steadfast in his claims that Cook forced him to engage in sex acts with Jessica and Jackie, touched him inappropriately, exposed him to pornography, and threatened to kill him and his family. With respect to the details most critical to determining Cook‘s guilt, C.C.‘s trial testimony largely aligned with the disclosures he made during the CAC interview, and to the extent that C.C.‘s trial testimony was at variance with his CAC disclosures, Kuhr‘s testimony concerning the effects of child sexual abuse on memory provides a reasonable explanation for these differences. Finally, the State introduced other
{¶115} Lastly, we consider whether Cook‘s trial counsel was ineffective for failing to object when State‘s Exhibit 19 was played for the jury or for failing to object to the admission of State‘s Exhibit 13. State‘s Exhibit 19 is a video recording that depicts C.C., who appears to be approximately ten years old, playing with Cook‘s cat. (State‘s Ex. 19). In the video, Cook is heard speaking to C.C., and Cook addresses C.C. with profanity and a sharp tone at points throughout the recording. (Id.). C.C. testified that Cook spoke to him like that “[e]very day, at least, once.” (May 14, 2019 Tr. at 31). State‘s Exhibit 13 is Cook‘s cell phone with SD card. (State‘s Ex. 13).
{¶116} As to State‘s Exhibit 19, Cook claims that it “was highly prejudicial and served no other purpose than to try and depict [him] in a very unfavorable light.” (Appellant‘s Brief at 17). He argues that his trial counsel performed deficiently by failing to object when it was played for the jury because “[t]he prejudicial nature
{¶117} Cook‘s argument is without merit. In each of the three counts of rape on which Cook was indicted, it was alleged that Cook “purposely compelled [C.C.] to submit by force or threat of force.” (Doc. No. 1). See
{¶118} Here, State‘s Exhibit 19 was relevant to determining whether Cook exerted sufficient psychological pressure on C.C. to overcome C.C.‘s will and force him to engage in sexual conduct with Jessica and Jackie. Relevant evidence is any “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.”
{¶119} We also conclude that Cook has not demonstrated that he was prejudiced by his trial counsel‘s failure to object to the admission of State‘s Exhibit 13. Cook argues that State‘s Exhibit 13, his cell phone and SD card, “contain[ed] more video[s] than [were] shown in court” and that the admission of the cell phone and SD card “created the possibility of the jury considering evidence outside of the trial proceedings, resulting in a prejudicial influence * * *.” (Appellant‘s Brief at 17). Cook has raised only the mere possibility that the jury viewed other videos contained on the cell phone and SD card. However, there is no indication that the jury viewed any other videos that might be stored on the cell phone and SD card and, therefore, no evidence that the jury viewed any videos that could have prejudiced Cook. If the jury did not view other videos, the admission of the cell phone and SD card could not have affected the jury‘s verdicts. See State v. Carson, 10th Dist. Franklin No. 11AP-809, 2012-Ohio-4501, ¶ 30 (noting that the defendant could not demonstrate a reasonable probability of a different trial outcome where there was no evidence that the jury actually viewed a potentially prejudicial video segment). As a result, we conclude that Cook has not established that there is a
{¶120} Cook‘s fifth assignment of error is overruled.
Assignment of Error No. VI
Appellant was denied a fair trial as a result of the cumulative errors that occurred throughout the trial.
{¶121} In his sixth assignment of error, Cook argues that cumulative errors committed throughout the trial prevented him from having a fair trial. He argues that the following four errors, though perhaps harmless by themselves, combined to deprive him of a fair trial: (1) the trial court‘s decision to prevent Patricia from testifying about whether she believed that C.C.‘s accusations were true; (2) the trial court‘s decision to allow the amendment of the indictment without advising Cook that he “was entitled to a continuance and possible discharge of the present jury“; (3) the admission over Cook‘s objection of State‘s Exhibits 16 and 17—prescription pill bottles bearing Jackie‘s name that were found in Patricia‘s house; and (4) the admission of Lieutenant Justice‘s testimony аbout the contents of the Crown Royal bag, the admission of the Crown Royal bag and its contents, and the admission of C.C.‘s out-of-court statements about Cook‘s alleged involvement with drugs. (Appellant‘s Brief at 19-21).
{¶123} After reviewing the record, we conclude that Cook was not denied a fair trial by cumulative error. First, with respect to Cook‘s first two alleged errors, we have previously concluded that the trial court did not err by preventing Patricia from testifying about whether she believed C.C.‘s allegations or by allowing the indictment to be amended pursuant to
{¶124} Moreover, even assuming that the trial court erred both by allowing the admission of State‘s Exhibits 16 and 17 and by allowing the admission of the Crown Royal bag and other evidence relating to Cook‘s drug use, we cannot conclude that these errors combined to deprive Cook of a fair trial. As discussed in exhaustive detail above, the State presented substantial evidence establishing Cook‘s guilt. Consequently, Cook cannot show that the trial court‘s errors in allowing this evidence to be admitted, if any, combined to deny him a fair trial. See State v. Mathis, 8th Dist. Cuyahoga No. 107365, 2019-Ohio-3654, ¶ 82-83.
{¶125} Cook‘s sixth assignment of error is overruled.
{¶126} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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