State v. RossbachState v. Rossbach
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Julia R. Bates, Lucas County Prosecuting Attorney, and Mark T. Herr, Assistant Prosecuting Attorney, for appellee.
James J. Popil, for appellant.
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COSME, J.
{¶1} Appellant, Thomas Rossbach, appeals from a judgment of the Lucas County Common Pleas Court, following a jury trial in which appellant was found guilty of four counts of gross sexual imposition, violations of
I. BACKGROUND
{¶2} It was alleged that appellant molested his six-year-old niece, V.R., multiple times during the period from August 25, 2008, through November 24, 2008. V.R., born in 2002, was five-years-old at the time of the alleged molestation.
{¶3} Several actions by V.R. prompted her parents to question her behavior. One of the events was a nightmare during which she apparently said “No, I don‘t want to touch it, I don‘t want to touch it.” When her father woke her up, he asked her if she could remember the dream. She couldn‘t, but when questioned further she ran into her room and said, “I‘m bad, I have to -- I have to go to time out.”
{¶4} The next action occurred when V.R. put her tongue inside her mother‘s mouth when giving her a kiss. When asked by her mother why she was kissing with her tongue, V.R. indicated that she had learned it from “Uncle Butch.” Appellant, whom V.R. called “Uncle Butch,” is V.R.‘s mother‘s brother. Appellant and his 12 year old son were living with V.R.‘s family at the time of the allegations.
{¶5} V.R.‘s father confronted appellant who denied that anything improper had occurred. After appellant protested to his sister that nothing had happened, V.R. looked at him and said “Uncle Butch, you‘re a liar.”
{¶6} V.R.‘s parents informed the police of their belief that V.R. had been molested. Appellant admitted to Detective Stooksbury that V.R. had twice touched his
{¶7} Because of V.R.‘s young age, appellant‘s counsel sought a competency hearing. The trial judge conducted an examination of V.R., and based on her observations and V.R.‘s responses to her questions, ruled V.R. competent to testify.
{¶8} Appellant filed a motion in limine asking that the prosecutor not refer to V.R. as the “victim” at trial, asserting that there is no victim until proven otherwise. The trial court granted the request. However, at trial, the prosecutor referred to V.R. as the “victim” three times each during opening and closing statements. Appellant asserts that the prosecutor‘s use of “victim” was prejudicial and affected the outcome of the trial.
{¶9} V.R. testified appellant touched her genitals five times and touched her anus at least once. She testified that all of the touching occurred before her sixth birthday, and occurred on different days, in different rooms, but always at her home. She further testified that her parents were not at home when the touching occurred, but that sometimes appellant‘s son was home, upstairs in his room. She also related that appellant made her rub lotion on his penis. She stated that the touching made her uncomfortable and they did not talk when touching occurred.
{¶10} Appellant raises seven assignments of error.
II. COMPETENCY OF CHILD WITNESS
{¶11} In his first assignment of error, appellant maintains:
{¶13} Appellant complains that V.R. was not competent because she could not recall her friends’ names, what she received for her birthday, her home address, street name, or phone number. He also cites her inability to recite her ABC‘s or do simple math (i.e., one plus one equals two). Appellant complains that V.R. could not relate accurate impressions of fact or accurately recollect those impressions.
{¶14} We disagree.
{¶15} In State v. Frazier (1991), 61 Ohio St.3d 247, syllabus, certiorari denied (1992), 503 U.S. 941, the Supreme Court of Ohio set the standard for competency guidelines of child witnesses:
“In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child‘s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child‘s ability to recollect those impressions or observations, (3) the child‘s ability to communicate what was observed, (4) the child‘s understanding of truth and falsity and (5) the child‘s appreciation of his or her responsibility to be truthful.” See
Evid.R. 601(A) . See, also, Turner v. Turner (1993), 67 Ohio St.3d 337, 343.
{¶17} In State v. Clark (1994), 71 Ohio St.3d 466, 469, the Supreme Court of Ohio stated that “the burden falls on the proponent of the witness to establish that the
{¶18} It is well-settled that, as the trier of fact, trial judges are required to make a preliminary determination as to the competency of all witnesses, including children, and that absent an abuse of discretion, competency determinations of the trial judge will not be disturbed on appeal. Clark, 71 Ohio St.3d at 469; Frazier, 61 Ohio St.3d at 251. See State v. Moreland (1990), 50 Ohio St.3d 58, 61. See, also, State v. Uhler (1992), 80 Ohio App.3d 113, 118; State v. Bradley (1989), 42 Ohio St.3d 136, paragraph one of the syllabus, certiorari denied (1990), 497 U.S. 1011; State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶19} A trial court is given wide latitude in determining whether a prospective witness is competent to testify. Clark, supra. The trial judge has the opportunity to observe the child‘s appearance, manner of responding to questions, general demeanor, and ability to relate facts accurately and truthfully. Frazier, supra.
{¶20} In conducting an examination of a minor, the court must satisfy itself of the elements enumerated in Frazier. See In re J.M., 8th Dist. No. 85546, 2006-Ohio-1203, ¶ 10. See, also, State v. Swartsell, 12th Dist. No. CA2002-06-151, 2003-Ohio-4450, ¶ 12. After conducting the examination, the trial court may rule on the competency of the witness, keeping in mind whether the witness‘s age substantially negates the trustworthiness of his or her testimony. See Huprich v. Paul W. Varga & Sons, Inc. (1965), 3 Ohio St.2d 87, 91 (concerning a witness‘s mental impairment), overruled in part on other grounds, Clark, supra, at 471.
{¶22} Here, the trial judge questioned six-year-old V.R., observed her demeanor, and found her competent. At the competency hearing, V.R. was able to relate specific facts to the trial judge about her birthday, her age, where her birthday party was held, what she did at the party, the type of birthday cake she had, who her best friend is, the color of her house, the name of her school, her teacher‘s name, who lives in her house, the age of her sister, the names of her pets, what she got for Christmas, her mother‘s name and her father‘s name. In addition, the trial judge asked V.R. about telling a truth and a lie. V.R.‘s response was, “you get in trouble” if you lie. When asked if she promised to tell the truth, she responded, “Yes.” When asked whether everything she told the trial judge was the truth, she responded, “Yes.”
{¶23} The trial judge concluded that that V.R. was competent, despite V.R.‘s inability to recollect some facts, stressing that V.R. understood the difference between the
{¶24} Applying the foregoing to the record before us, we find the trial court did not abuse its discretion in determining V.R. competent to testify.
{¶25} A six-year-old will rarely, if ever, be a perfect witness. Nevertheless, this six-year-old was capable of receiving and relating accurate impressions of fact. V.R. accurately recalled those impressions, and related those impressions truthfully.
{¶26} Accordingly, appellant‘s first assignment of error is not well-taken.
III. RIGHT TO A FAIR TRIAL
{¶27} In his second assignment of error, appellant maintains:
{¶28} “The trial court failed to declare a mistrial and denied appellant due process of law in violation of his constitutional rights where the prosecutor repeatedly referred to the child accuser as ‘victim‘, despite an order from the court prohibiting the prosecutor from using that reference.”
{¶29} Appellant insists that a prosecutor may not express a personal opinion as to the credibility of a witness and that there is a reasonable probability that but for the prosecutor‘s misconduct, the outcome of the trial would have been different. Appellant
{¶30} We disagree.
{¶31} Appellant‘s second assignment of error is composed of two parts. The first part is the allegation of prosecutorial misconduct resulting from the prosecutor‘s reference to V.R. as the “victim,” and the second part is the claim that the trial court should have declared a mistrial.
A. Prosecutorial Misconduct
{¶32} The Supreme Court of Ohio has limited the instances when a judgment may be reversed on grounds of prosecutorial misconduct. See State v. Lott (1990), 51 Ohio St.3d 160, 166; State v. Mundy (1994), 99 Ohio App.3d 275, 300. In State v. Overholt, 9th Dist. No. 02CA0108-M, 2003-Ohio-3500, ¶ 46, discretionary appeal not allowed, 100 Ohio St.3d 1472, 2003-Ohio-5772, the court held, “The analysis of cases alleging prosecutorial misconduct focuses on the fairness of the trial and not the culpability of the prosecutor. * * * A reviewing court is to consider the trial record as a whole, and is to ignore harmless errors ‘including most constitutional violations.’ * * * Accordingly, a judgment may only be reversed for prosecutorial misconduct when the improper conduct deprives the defendant of a fair trial.” (Citations omitted.)
{¶33} Further, “[i]n deciding whether a prosecutor‘s conduct rises to the level of prosecutorial misconduct, a reviewing court must determine if the remarks were improper, and, if so, whether they actually prejudiced the substantial rights of the
{¶34} In this case, appellant alleges that during the state‘s opening and closing statements, the prosecutor inappropriately bolstered the victim‘s truthfulness when she referred to V.R. as the “victim” a total of six times.
{¶35} Appellant also claims that the prosecutor improperly stated during closing statement that V.R. was a “victim.” However, a prosecutor may comment on “‘what the evidence has shown and what reasonable inferences may be drawn therefrom.‘” Lott, 51 Ohio St.3d at 165, quoting State v. Stephens (1970), 24 Ohio St.2d 76, 82.
{¶36} The trial court had instructed the jury at the outset that opening and closing statements were not evidence. Thus, the effect of any prosecutorial misconduct “‘must be considered in the light of the whole case.‘” State v. Rahman (1986), 23 Ohio St.3d 146, 154, quoting State v. Maurer (1984), 15 Ohio St.3d 239, 266. See Dunlop v. United States (1897), 165 U.S. 486, 498.
{¶37} Although the remarks made by the prosecutor were improper because the trial court had instructed the prosecutor not to refer to V.R. as the “victim,” appellant‘s trial counsel did not object to the remarks. Thus, in the absence of plain error affecting substantial rights, we need not consider whether the prosecutor‘s references to V.R. as a
{¶38} Even if we were to find that appellant had preserved this issue for appeal, we must conclude that the use of the term “victim” six times by the prosecutor was harmless error.
B. Mistrial not Warranted
{¶39} A mistrial is an extreme remedy, “declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin (1991), 62 Ohio St.3d 118, 127, citing Illinois v. Somerville (1973), 410 U.S. 458, 462-463. While a review of the trial court‘s decision denying a motion for mistrial ordinarily falls under an abuse of discretion standard, State v. Stanley (1997), 121 Ohio App.3d 673, 699, citing State v. Sage (1987), 31 Ohio St.3d 173, 182, appellant‘s failure to object at trial precludes such a review. Instead, the trial court‘s refusal to declare a mistrial is reviewed under plain error analysis.
{¶40} In reviewing a claim that a mistrial should have been granted, the Supreme Court of Ohio in State v. Glover (1988), 35 Ohio St.3d 18, 19, noted, “[t]his court has instead adopted an approach which grants great deference to the trial court‘s discretion in this area, in recognition of the fact that the trial judge is in the best position to determine
{¶41} Under this standard, the error is deemed waived unless the outcome of the trial would have been different, but for the error. State v. Wickline (1990), 50 Ohio St.3d 114, 119-120. An appellate court should only take notice of plain error under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Landrum (1990), 53 Ohio St.3d 107, 111; State v. Carpenter (1996), 116 Ohio App.3d 615, 621. State v. Howard (June 14, 2002), 2d Dist. No. 18884.
{¶42} In this case, the few references to V.R. as the “victim” during opening and closing statements did not prejudice appellant. While the prosecutor‘s use of this term in this case was improper and a violation of the court‘s order, we do not consider these remarks, in the light of the whole case, to have risen to the level of plain error requiring reversal.
{¶43} Accordingly, appellant‘s second assignment of error is not well-taken.
IV. MANIFEST WEIGHT OF THE EVIDENCE
{¶44} In his third assignment of error, appellant maintains:
{¶45} “The conviction against appellant Thomas Rossbach was against the manifest weight of the evidence.”
{¶46} Appellant insists that the jury verdict was against the manifest weight of the evidence since there was no evidence that either appellant or V.R. was sexually aroused
{¶47} We disagree.
{¶48} Our function is to examine the evidence admitted at trial and to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 273. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Id.
{¶49} “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, citing Tibbs v. Florida (1982), 457 U.S. 31, 42. See State v. Otten (1986), 33 Ohio App.3d 339, 340. The appellate court, “reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id. quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. A conviction may be upheld even when the evidence is
{¶50} Weight of evidence and credibility of witnesses are matters for the trier of fact. A reviewing court must, therefore, accord due deference to the credibility determinations made by the factfinder. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of syllabus. See State v. Gilliam (Aug. 12, 1998), 9th Dist. No. 97CA006757. “Ohio courts have exhibited a consistent willingness to hold that the testimony of the victim, if believed, is sufficient to support a conviction, even without further corroboration.” State v. Knowles, 9th Dist. No. 04CA008476, 2004-Ohio-6080, ¶ 9. See State v. Sparks, 9th Dist. No. 22111, 2005-Ohio-2154, ¶ 11; State v. Jennings, 9th Dist. No. 22016, 2004-Ohio-5447, ¶ 15.
{¶51}
{¶52} “(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
{¶53} “* * *
{¶54} “(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.”
{¶55} Sexual contact means: “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is
{¶56} Stating that “R.C. Chapter 2907 is designed to protect victims of sexual crimes,” the Tenth District Court of Appeals in State v. Astley (1987), 36 Ohio App.3d 247, 250, held that ”
{¶57} In State v. Valdez (Oct. 25, 1991), 6th Dist. No. 90-OT-007, this court adopted the rule of Astley, holding that evidence that the defendant touched the victim, who was less than thirteen years of age, on her vagina and buttocks was sufficient to
{¶58} According to Astley, the precise language of the gross sexual imposition statute does not contain a specific culpable mental state. It is axiomatic that when a statute reads, “No person shall * * *,” absent any reference to the requisite mental state, the statute is clearly indicative of a legislative intent to impose strict liability. State v. Cheraso (1988), 43 Ohio App.3d 221, 223. See In re Grigson (Apr. 15, 1991), 4th Dist. No. 1881.
{¶59} In State v. Mundy (1994), 99 Ohio App.3d 275, 287, the Second District Court of Appeals rejected the analysis in Astley, to the extent that it imposes strict liability for sexual contact. According to Mundy, since “sexual contact” as defined in
{¶60} Thus, Ohio courts disagree whether a precise culpable state of mind is required in addition to a showing of the proscribed sexual contact for the commission of the offense of gross sexual imposition on a person thirteen years or younger. Astley imposes strict liability for any sexual contact with a young child such that the mental culpability of a defendant need not be proven. Mundy insists that evidence of the mental culpability is required by the statute, but that such evidence can be inferred by the type, nature, and circumstances of the contact, or else the action is likely accidental or innocent touching.
{¶61} Although the court in Mundy refused to adopt the reasoning in Astley, it did not limit the evidence possible to prove a defendant‘s subjective purpose of specific intention to only explicit evidence of sexual gratification or arousal. Instead, the court relied on In re Grigson, supra, State v. Lott (1990), 51 Ohio St.3d 160, 168, and State v. Cobb (1991), 81 Ohio App.3d 179, 184, in holding:
“{¶62} “Whether that touching was undertaken for the purpose of sexual arousal or gratification must be inferred from the type, nature, and circumstances surrounding the contact. In other words, would an ordinary prudent person or a reasonable person sitting as a juror perceive from the defendant‘s actions, and all of the surrounding facts and circumstances, that the defendant‘s purpose or specific intention was arousal or gratification of sexual desire[?]” Mundy, supra, at 289. See, In re Bloxson (Feb. 6,
{¶63} The court in Mundy goes on to state that:
{¶64} ”
R.C. 2907.05(A)(4) provides explicit standards for those charged with enforcing that provision. The language utilized, and more particularly the culpable mental state requirement that the offender‘s touching of the prohibited areas of the body be done for the purpose or specific intention of sexual arousal or gratification, leaves no discretion as to application and enforcement of that statute. It is not simply any or all contact with the proscribed areas of the body which the statute forbids; that would leave law enforcement officials to ask whether contact in any particular factual context constitutes criminal behavior or innocent conduct. Rather, it is a touching for the specific purpose of sexual arousal or gratification which violates the statute. It is this culpability, the specific intent or purpose to achieve sexual arousal or gratification from the touching, which distinguishes criminal conduct from noncriminal, innocent behavior, such as accidental touching or a touching of the prohibited areas incidental to bathing, changing a diaper, or playful wrestling.R.C. 2907.05(A)(4) provides constitutionally adequate guidelines which enable law enforcement officers to enforce and apply that provision in an evenhanded manner.” Mundy, supra, at 289.
{¶65} The distinction between the decisions in Astley and Mundy appears in the “strict liability” reading of the prohibition against sexual contact with a person under the age of 13. Astley held that strict liability under
{¶66} Key to understanding why these two seemingly different positions do not necessarily lead to different outcomes is the fact that the “strict liability” position must infer from the same evidence regarding the type, nature, and circumstances of any contact whether that contact would reasonably be considered “sexual contact.” Thus, courts following the “strict liability” position are still making the kind of discretionary inferences that the court in Mundy holds to be a required element in proving a violation of
{¶67} What this means in the present case, then, is a distinction without a difference for appellant. He claims that because neither he nor V.R. said anything during the contact that the required element of sexual arousal or gratification was not proved. However, the jury clearly found that other evidence regarding the type, nature, and circumstances of the contact was credible and convincing in determining that the contact was sexual.
{¶68} Although a future case may necessitate differentiating the decisions in Astley and Mundy, in the present case we decline to do so because it is clear that courts are basing their judgments on the same evidence of conduct, regardless of the state of mind applied in Astley (strict liability) or Mundy (purposefully).
{¶70} Accordingly, appellant‘s third assignment of error is not well-taken.
V. SUFFICIENCY OF THE EVIDENCE
{¶71} In his fourth assignment of error, appellant maintains:
{¶72} “The conviction against appellant Thomas Rossbach was not supported by the sufficiency of the evidence.”
{¶73} Appellant insists that the evidence admitted at trial was insufficient to find him guilty beyond a reasonable doubt.
{¶74} We disagree.
{¶75} The standard of review of a claim of insufficient evidence was established by the Supreme Court of Ohio in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus:
{¶76} “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. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
{¶77} Appellant argues that there is insufficient evidence to support a conviction of gross sexual imposition because there is no evidence that appellant touched the victim for the purpose of sexual arousal or gratification. See State v. Goins (Dec. 3, 2001), 12th Dist. No. CA2000-09-190. The record however, includes sufficient evidence regarding the circumstances of the contact to find appellant guilty of violating
{¶78} Appellant also argues that there was insufficient evidence to prove that the sexual contact occurred during the time period specified within the indictment. However, the precise date and time sexual contact occurs is not an essential element of the crime. State v. Madden (1984), 15 Ohio App.3d 130, 131. Moreover, “particularly in cases involving sexual misconduct with a child, the precise times and dates of the alleged offense or offenses oftentimes cannot be determined with specificity.” State v. Daniel (1994), 97 Ohio App.3d 548, 556. See Mundy, 99 Ohio App.3d at 296.
{¶79} It was not unreasonable for the jury to believe that V.R. was unable to remember exact dates and times, especially considering that the same conduct occurred multiple times over a four month period.
{¶81} Accordingly, appellant‘s fourth assignment of error is not well-taken.
VI. MAXIMUM AND CONSECUTIVE SENTENCES
{¶82} In his fifth assignment of error, appellant maintains:
{¶83} “The trial court committed abuse of discretion when it imposed maximum and consecutive sentences without adequate justification.”
{¶84} Appellant complains that the trial court abused its discretion in imposing more than the minimum sentence because he was a first-time offender, had no record other than two traffic offenses, and there were no physical indicators of abuse, or serious emotional or physical harm to V.R. Appellant also complains that the facts in the record do not justify maximum, consecutive sentences.
{¶85} We disagree.
{¶86} After State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the sentencing judge does not have to make the
{¶87} The imposition of a sentence that is unsupported in the record is contrary to law. “‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an issue or factor which a statute requires a court to consider.” State v. Hawkins, 2d Dist. No. 06CA79, 2007-Ohio-3581, ¶ 8, quoting State v. Lofton, 2d Dist. No. 19852, 2004-Ohio-169, ¶ 11. Even though Foster frees the trial judge from making the findings, support for the sentence should appear in the record to facilitate the appellate court‘s review.
{¶88} The transcript reflects that the trial court took note of the fact that V.R. was a child of tender years, that appellant had betrayed a position of trust, and caused “this child serious emotional and psychological harm and the effect of that will stay with her for the rest of her life.”
{¶89} It is clear from the comments made by the trial court at appellant‘s sentencing that it believed that a minimum prison sentence would demean the seriousness of appellant‘s conduct and would not protect the public from future criminal conduct by him. Thus, the trial court did not abuse its discretion in imposing more than the minimum sentence.
{¶90} Appellant also complains the trial court abused its discretion in imposing maximum, consecutive sentences.
{¶91} Shortly after Foster, the Supreme Court of Ohio outlined a two-prong test for determining if a sentence merited reversal. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In accordance with Kalish, this court must first determine whether the sentence complies with all applicable statutes and rules. Sentencing errors assigned regarding the trial court‘s application of
{¶92} If this court determines that the first prong is met, the sentence is reviewed only for an abuse of discretion. Kalish at ¶ 26. In order for a trial court to have abused its discretion, there must be “more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, citing State v. Adams (1980), 62 Ohio St.2d 151.
{¶93} When a trial court imposes a sentence that falls within the applicable statutory range, the court is required to consider the purposes and principles set forth in
{¶94} In this case, before pronouncing its sentence, the trial court stated that it had “considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing as set forth in
{¶95} Because the trial court has stated that it considered the factors set out in both
{¶96} Appellant‘s sentences fell within the statutory range. Furthermore, nothing in the record suggests that the court‘s imposition of maximum, consecutive sentences was unreasonable, arbitrary, or unconscionable, and therefore we find no abuse of discretion.
{¶97} Accordingly, appellant‘s fifth assignment of error is not well-taken
VII. POSTRELEASE CONTROL
{¶98} In his sixth assignment of error, appellant maintains:
{¶99} “The trial court erred in failing to impose a sentence that included postrelease control.”
{¶100} Appellant claims that while the trial court properly advised him that he “would be subject to five (5) years of post release control,” the judgment entry filed on August 27, 2009 does not include this reference. Appellant asserts that the sentencing entry which states:
{¶101} “Defendant given notice of appellate rights under
{¶102} We disagree.
{¶104}
{¶105} In Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, the Supreme Court of Ohio considered the language necessary to provide notice of postrelease control in sentencing entries. The court held that sentencing entries were sufficient if they “afford notice to a reasonable person that the courts were authorizing postrelease control as part of each * * * sentence.” Id. ¶ 51.
{¶106} In State v. Maddox, 6th Dist. No. L-09-1237, 2010-Ohio-1476, ¶ 13, this court considered sentencing entries that omitted reference to
{¶107} In these prior cases, this court concluded that notice under
{¶108} According to
{¶109} Accordingly, appellant‘s sixth assignment of error is not well-taken.
VIII. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶110} In his seventh assignment of error, appellant maintains:
{¶111} “Appellant Thomas Rossbach was denied effective assistance of counsel.”
{¶112} Appellant claims that trial counsel was ineffective in challenging V.R.‘s competency; failing to object to the prosecutor‘s reference to V.R. as a “victim;” failing to
{¶113} We disagree.
{¶114} A reviewing court may not reverse a conviction for ineffective assistance of counsel unless the defendant shows first that counsel‘s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. See Strickland v. Washington (1984), 466 U.S. 668, 687. “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s error, the result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. A “reasonable probability” in this context is one that undermines confidence in the outcome. See State v. Sanders (2001), 92 Ohio St.3d 245, 274.
{¶115} When conducting its inquiry, “[a] reviewing court must strongly presume that ‘counsel‘s conduct falls within the wide range of reasonable professional assistance,’ and must ‘eliminate the distorting effects of hindsight, * * * and * * * evaluate [counsel‘s] conduct from counsel‘s perspective at the time.‘” Id. at 273, quoting Strickland, 466 U.S. at 689. In Ohio, a properly licensed attorney is presumed competent and the burden of proving ineffectiveness is the defendant‘s. State v. Smith (1985), 17 Ohio St.3d 98, 100.
A. Competency of Child Witness
{¶117} Given, however, the “strong presumption” that counsel‘s performance constituted reasonable assistance, counsel‘s actions must be viewed as tactical decisions and do not rise to the level of ineffective assistance. Strickland, supra. Appellant does not show that there is a “reasonable probability” that but for counsel‘s actions, the result of the case would have been different. Bradley, supra.
{¶118} We have already concluded that the trial judge did not err in concluding that V.R. was competent. As such, appellant cannot demonstrate that counsel‘s failure to make a statement was prejudicial.
B. Failure to Object
{¶119} Appellant contends that trial counsel was ineffective for failing to object to the prosecutor‘s characterization of V.R. as a “victim” during opening and closing argument.
{¶120} In this case, we concluded that although a pretrial order was in place prohibiting reference to V.R. as a “victim,” appellant could not show that he was prejudiced by the statements.
C. Failure to make Crim.R. 29 Motion
{¶122} Appellant contends that trial counsel was ineffective when he failed to make a
{¶123} A
{¶124} Thus, trial counsel‘s failure to assert a
{¶126} In this case, we concluded that there was sufficient evidence to sustain the conviction. A
D. Failure to Object to Inadmissible Evidence
{¶127} Appellant complains that trial counsel was ineffective for failing to object to: (1) statements V.R. made to her mother as being hearsay; (2) statement by V.R.‘s mother vouching for the credibility of V.R.; (3) leading questions; and (4) speculation about appellant‘s state of mind during taped interview.
(1) Hearsay statements
{¶128} Appellant contends that trial counsel was ineffective when he failed to object to mother‘s hearsay statements about what V.R. told her about appellant touching her and what her husband told her about his conversation with appellant. Appellant asserts that the statements were hearsay and inadmissible.
{¶129} In the present case, the testimony elicited from the mother concerning what she heard from her daughter and her husband was part of a line of questioning relating why she called the police to report that V.R. had been molested. The answers
{¶130} Testimony which explains the actions of a witness to whom a statement is directed is not hearsay. State v. Thomas (1980), 61 Ohio St.2d 223, 232. Accordingly, we find that the mother‘s statements about V.R. being molested did not constitute impermissible hearsay. Furthermore, V.R. and her father testified to the same matters which were the subject of the out-of-court statements they made. Neither of them were present when the mother testified. State v. Griffin, 8th Dist. No. 80499, 2002-Ohio-4288, ¶ 97.
{¶131} We conclude that appellant‘s trial counsel was not ineffective merely because he did not object to the mother‘s admissible testimony.
(2) Vouching for Credibility of V.R.
{¶132} Appellant also contends that his trial counsel was ineffective in failing to object to the mother‘s statement that she “believed” V.R.‘s claim that appellant had molested her. The prosecutor had asked the mother:
{¶133} “Q. What did you do after [appellant] left?
{¶134} “A. We were just completely devastated, we didn‘t even know how to absorb everything and we -- you know, here your brother -- you know, I mean, but here‘s your daughter, and just the way that she described things, her behavior, I knew. I knew it was true just from the way she presented it and all of the things that had led up to that and
{¶135} Generally, a failure to object is viewed as trial strategy and alone will not establish an ineffective assistance claim. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103.
{¶136} In this case, V.R. testified and was subject to cross-examination. The jury was able to witness her demeanor and judge her credibility independent of her mother‘s testimony. See State v. Amankwah, 8th Dist. No. 89937, 2008-Ohio-2191, ¶ 44; State v. Cappadonia, 12th Dist. No. CA2008-11-138, 2010-Ohio-494, ¶ 36.
{¶137} In addition, in appellant‘s videotaped admission to the police, he admitted that V.R. had touched his penis twice. Dr. Schlievert also testified generally concerning her behavior and the behavior of abused children. Finally, there was testimony from V.R.‘s parents that corroborated her testimony and provided independent evidence of her behavior during the time period in question.
{¶138} The record in this case leads us to conclude that trial counsel‘s failure to object to the mother‘s statement that she believed her child is harmless error. In light of the context in which the statement was made and all of the evidence presented at trial, we cannot conclude that the admission of the mother‘s statement prejudicially affected the fairness or result of appellant‘s trial.
{¶139} Appellant contends that trial counsel was ineffective for failing to object to the prosecutor‘s leading questions of V.R.‘s mother. Specifically, he complains that the question posed to her about whether she recalled writing in her report that appellant had been caught masturbating in the bathroom by V.R. was prejudicial.
{¶140} A leading question is “one that suggests to the witness the answer desired by the examiner.” State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 149, quoting 1 McCormick, Evidence (5th Ed.1999) 19, Section 6. Under
{¶141} The Supreme Court of Ohio has held that the failure to object to leading questions does not constitute ineffective assistance of counsel. State v. Jackson (2001), 92 Ohio St.3d 436, 449; State v. Coy (March 22, 1995), 2d Dist. No. 14415; State v. Campbell (1994), 69 Ohio St.3d 38, 52-53. The failure of counsel to object may be the result of trial strategy, and “will almost never rise to the level of ineffective assistance of trial counsel.” State v. Jones, 2d Dist. No. 20349, 2005-Ohio-1208, ¶ 28.
{¶142} Even if the prosecutor‘s questions to V.R.‘s mother were objectionable because they were leading, appellant fails to demonstrate that he was prejudiced as a result; that is, that the outcome of the trial likely would have been different had defense counsel objected. Strickland, 466 U.S. at 689.
(4) Speculation about Appellant‘s State of Mind
{¶144} Appellant complains that trial counsel was ineffective for failing to object to the leading question the prosecutor asked of Detective Stooksbury concerning appellant‘s apparent belief that V.R. was at fault for the sexual contact that had occurred. Appellant complains that trial counsel did not object to the speculation about appellant‘s state of mind. The colloquy appellant complains of:
{¶145} “Q. On the tape that we just saw, did the Defendant ever admit to doing anything improper as far as any improper touching or any improper actions towards [V.R.]?
{¶146} “A. No.
{¶147} “Q. And during the interview, basically, it would appear as though the little girl was pursuing him, correct?
{¶148} “A. That‘s what it appears to be.”
{¶149} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 174, the Supreme Court of Ohio concluded that the prosecutor‘s improper leading question to detective after the jury heard detective‘s audiotaped interview of the murder defendant, asking “during the course of this, approximately, half-hour interview, she appears to be
{¶150} As in Diar, the jury in this case heard the detective‘s videotaped interview of appellant and could draw their own conclusion of appellant‘s justification of what occurred. Trial counsel‘s failure to object to these questions of Detective Stooksbury concerning appellant‘s state of mind does not constitute ineffective assistance.
{¶151} Thus, we conclude there was no plain error resulting from the leading question. Trial counsel was not ineffective for failing to object. Appellant was not prejudiced.
(5) Testimony of Non-Witness
{¶152} Appellant complains that trial counsel was ineffective because he failed to object to a leading question posed to appellant‘s son that included inadmissible hearsay:
{¶153} “Q. And when Mr. Wegnan, Jason, asked you about any sexual abuse that you may have witnessed, you said that you denied any sexual abuse, either witnessing or being touched yourself. Do you remember telling Mr. Wegnan that?
{¶154} “A. No. It was a while ago.”
{¶155} As stated earlier,
{¶156} Although the question could have been posed more generally, the state was properly eliciting routine facts from a young witness. It was not an abuse of discretion to permit the prosecutor to ask leading questions of a young witness. State v. Madden (1984), 15 Ohio App.3d 130, 133.
{¶157} We agree with appellant that the prosecutor‘s statement relating what Mr. Wegnan said was hearsay.
{¶158} After a thorough review of the record, we conclude that properly introduced evidence overwhelmingly establishes appellant‘s guilt. See Delaware v. Van Arsdall (1986), 475 U.S. 673, 681; State v. Williams (1983), 6 Ohio St.3d 281, 290. Trial counsel was not ineffective for failing to object to the leading questions to a young witness that also contained hearsay.
{¶159} Accordingly, appellant‘s seventh assignment of error is not well-taken.
{¶160} The trial court did not abuse its discretion in determining that the child, V.R., was competent to testify. Nor was appellant prejudiced by the prosecutor‘s reference to V.R. as a “victim” six times during opening and closing argument. While improper, appellant did not demonstrate that but for the prosecutor‘s misconduct, the result of the proceeding would have been different. A mistrial was not warranted as a result of the prosecutor‘s disregard of the pretrial order.
{¶161} We cannot say that appellant‘s conviction was against the manifest weight of the evidence or against the sufficiency of the evidence. The trial court did not abuse its discretion in imposing maximum, consecutive sentences. The sentencing entry provided sufficient notice to appellant that he was subject to a mandatory term of postrelease control. Finally, trial counsel was not ineffective.
{¶162} On consideration whereof, this court finds that appellant was not prejudiced or prevented from having a fair trial. Accordingly, the judgment of the Lucas County Common Pleas Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
L-09-1300
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
_______________________________
JUDGE
Thomas J. Osowik, P.J.
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Keila D. Cosme, J. JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.