STATE OF OHIO v. JOSE CALDERON SOLORIO
APPEAL NO. C-210526; TRIAL NO. B-2001537
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
October 21, 2022
[Cite as State v. Solorio, 2022-Ohio-3749.]
BERGERON, Presiding Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed
Clyde Bennett II, for Defendant-Appellant.
{¶1} A jury found defendant-appellant Jose Calderon Solorio guilty of multiple counts of gross sexual imposition against his minor daughter, L.C., after she accused him of sexually abusing her over a three-year period. On appeal, Mr. Calderon raises five assignments of error challenging an array of issues, including Brady violations, admissibility of evidence, imprecision in the indictment, weight and sufficiency of the evidence, and ineffective assistance of counsel. Based on the record at hand and the governing caselaw, however, we overrule his assignments of error and affirm the judgment of the trial court.
I.
{¶2} L.C. testified that Mr. Calderon began sexually abusing her in the summer of 2017, when she was just 11 years old. The first time an assault occurred, Mr. Calderon, L.C., and L.C.‘s younger brothers were camping in a recreational vehicle at Caesar Creek State Park in Warren County, Ohiо. At night, as L.C. laid in bed between Mr. Calderon and her youngest brother, Mr. Calderon inappropriately touched L.C. over her clothes. Several months later, in February or March of 2018, Mr. Calderon laid next to L.C. on the couch in the family home. This time, he made inappropriate contact with her beneath her clothing. L.C. also testified about three other incidents during which Mr. Calderon made inappropriate contact with her beneath her clothing. These incidents took place when L.C. was 13 years old. Besides the first inсident, the remaining five occurred in Hamilton County.
{¶3} In May 2019, L.C. came forward and told her mother about the abuse. Earlier that day, while she was supposed to be at a school social event, 13-year-old L.C. walked to a friend‘s home without her parents’ permission. When Mr. Calderon
{¶4} This attack served as a breaking point for L.C. When her mother arrived home from work, L.C. opened up about Mr. Calderon‘s history of sexually abusing her over the past few years. Instead of alerting law enforcement officials or medical professionals, however, L.C.‘s mother dispatched her inside the house while she discussed the allegatiоns with Mr. Calderon. Her parents took no further action that night regarding the allegations.
{¶5} The next day at school, L.C. disclosed the abuse to a close friend. Her friend notified a trusted teacher, who in turn reported the allegations to Dr. Stacy Orso, the principal of L.C.‘s school. After speaking with L.C. and confirming the allegations, Dr. Orso summoned the police and called the child-abuse-reporting hotline 241-KIDS. A police officer took L.C. to the Mayerson Center for Safe and Healthy Children at the Cincinnati Children‘s Hospital, where forensic interviewer Ashley Cremeans interviewed her. Ms. Cremeans made a preliminary finding confirming inappropriate sexual contact between L.C. and Mr. Calderon.
{¶6} After L.C.‘s interview at the Mayerson Center, she testified about the abuse before a grand jury in August of 2019. She explained the incident at Caesar Creek Park as well as an incident at a home her father was remodeling. She also indicated that the abuse occurred other times, when L.C. and Mr. Calderon were alone
{¶7} Subsequently, L.C. began attending therapy sessions with a Cincinnati Children‘s Hospital psychologist. Over the course of these sessions, L.C. disclosed more details about the abuse she suffered, so the psychologist referred her back to the Mayerson Center for a second interview. This interview, conducted by licensed social worker Emily Harman, focused on the instances of sexual abuse that L.C. did not share during her first Mayerson Center interview. Following the second interview, the state presented the matter to another grand jury, which issued a six-count indictment in July 2020.
{¶8} The case proceeded to trial, and Mr. Calderon testified in his own defense. He categorically denied engaging in any inappropriate contact or conduct with L.C. To the contrary, he maintained that L.C. fabricated the abuse allegations to deflect attention from her own unruly misconduct.
{¶9} Nevertheless, the jury found Mr. Calderon guilty of all six counts. At a sentencing hearing, the trial court sentenced him to 18 months in prison for the four counts of gross sexual imposition in violation of
II.
{¶10} In his first assignment of error, Mr. Calderon claims that the state‘s failure to divulge certain information to the defense before trial violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Before trial, defense
{¶11} “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87. But Brady generally does not apply to delayed disclosure when the defense has the ability to use the evidence during trial, in the absence of prejudice: ” ’Brady generally does not apply to delayed disclosure of exculpatory information, but only to a complete failure to disclose.’ ” State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 88, quoting United States v. Bencs, 28 F.3d 555, 560 (6th Cir.1994). ” ‘Delay only violates Brady when the delay itself causes prejudice.’ ” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 155, quoting United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir.1992).
{¶12} Before the grand jury, L.C. testified that her father never touched her underneath her clothes, whereas at trial, L.C. testified as to multiple instances where her fathеr made inappropriate sexual contact with her underneath her clothes. Assuming that this testimony was exculpatory, given that counsel possessed the transcript at issue in advance of L.C.‘s testimony, Mr. Calderon fails to show how the delayed disclosure prejudiced him. In fact, defense counsel ably cross-examined L.C. on these inconsistencies at trial.
{¶14} And although we can certainly imagine scenarios in which defense counsel needs additional time to analyze late emerging exculpatory evidence—here, defense counsel never requested a continuance to review the testimony (or any other similar relief). On appeal, Mr. Calderon only insists that, had the state provided the grand jury transcript before trial, defense counsel could have procured extrinsic evidence to impeach L.C. regarding the conflicting testimony.
{¶15} Without a showing of what specific extrinsic evidence defense counsel may have been able to procure, “[t]his claim is vague and speculative, * * * and thus fails to reach the level of a reasonable probability, one that is ‘sufficient to undermine confidence in the outcome.’ ” Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, at ¶ 156, quoting State v. Johnson, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus. Mr. Calderon does not explain how earlier disclosure of L.C.‘s first grand jury testimony would have enhanced the ability of the defense to impeach L.C. Without any showing of prejudice based on the extant record, we overrule the first assignment of error.
III.
{¶17} Under the United States and Ohio Constitutions, “an individual accused of a felony is entitled to an indictment setting forth the ‘nature and cause of the accusation.’ ” State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985). In the indictment, the state must assert “all material facts constituting the essеntial elements of an offense” so that the accused not only has “adequate notice and opportunity to defend” but also may “protect himself from any future prosecutions for the same offense.” Id. But, “[o]rdinarily, precise times and dates are not essential elements of offenses.” Id. at 171.
{¶18} In the context of child-abuse prosecutions, “[l]arge time windows * * * are not in conflict with constitutional notice requirements.” State v. Svoboda, 2021-Ohio-4197, 180 N.E.3d 1277, ¶ 124 (1st Dist.), quoting State v. Morgan, 12th Dist. Brown Nos. CA 2009-07-029 and CA 2009-08-033, 2010-Ohio-1720, ¶ 12. This is because, “[i]n many cases involving the sexual abuse of children, the victims arе simply unable to remember exact dates, especially where the crimes involve a repeated course of conduct over an extended period of time.” State v. See, 1st Dist. Hamilton Nos. C-190251 and C-190252, 2020-Ohio-2923, ¶ 17.
{¶20} Moreover, the trial court borrowed the jury instruction nearly verbatim from the Ohio Jury Instructions, CR Section 413.07 (Rev. May 21, 2022) (When time is not essential to an offense, “[i]t is not necessary that the state prove that the offense was committed on the exact day as charged in the (indictment)(information)(complaint). It is sufficient to prove that the offense took place on a date reasonably near the date claimed.“). In light of the instruction‘s tracking the pattern jury instructions and the caselaw discussed above, we see nothing in the instruction that deprived the defendant of due process or that rose to the level of plain error. The second assignment of error is accordingly overruled.
IV.
{¶21} In his third assignment of error, Mr. Calderon asserts that his convictions for counts one through five of his indictment run counter to the manifest weight of the evidence, and challenges the sufficiency of the evidence that led to his conviсtions on these counts.
{¶23} In reviewing a claim challenging the manifest weight of the evidence, we sit as a “thirteenth juror,” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), and “review the entire record, weigh the evidence and reasonable inferences, [and] consider the credibility of the witnesses.” State v. Barnthouse, 1st Dist. Hamilton No. C-180286, 2019-Ohio-5209, ¶ 6. But we will reverse the trial court‘s decision to convict and grant a new trial only in “‘exceptional cases in which the evidence weighs hеavily against the conviction.’ ” State v. Sipple, 2021-Ohio-1319, 170 N.E.3d 1273, ¶ 7 (1st Dist.), quoting Martin at 175.
{¶24} Mr. Calderon takes issue with the inexactitude in the indictment and imprecision in L.C.‘s testimony regarding the timing of counts one through five, framing both as sufficiency and manifest-weight problems.
V.
{¶26} In his fourth assignment of error, Mr. Calderon challenges the admissibility of expert testimony, faulting the trial court for allowing Ms. Harman and Ms. Cremeans to testify as expert witnesses. But because Mr. Calderon raised no objection to Ms. Harman‘s or Ms. Cremeans‘s qualifications or methodology as expert witnesses, we can review his claim only for plain error. State v. Baston, 85 Ohio St.3d 418, 423, 709 N.E.2d 128 (1999). His failure to develop the record on these points further limits his ability to fashion a persuasive argument.
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons[;]
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information.
Evid.R. 702 .
{¶28} Ms. Cremeans testified that she had extensive experience working with child sexual assault victims. She received her bachelor‘s and master‘s degrees in social work, completed specialized training with the National Child Advocacy Center regarding interviewing children who allege sexual abuse, and has worked with victims of child sexual abuse for over ten years. Among her qualifications, she has conducted over 600 forensic interviews with children who have alleged physical or sexual abuse.
{¶29} Ms. Harman testified in a similar vein. She received her baсhelor‘s and master‘s degrees in social work, earned a certificate in child abuse recognition, and is a licensed independent social worker in the state of Ohio. Beyond participating in specialized training (such as the Ohio Network of Children‘s Advocacy Centers’ forensic interviewing training), she estimated that she has conducted over 1,000 forensic interviews with children alleging physical or sexual abuse.
{¶31} In related fashion, Mr. Calderon takes issue with an email in which the assistant prosecuting attorney allegedly told Ms. Harman what information to include in her report. Defense counsel raised this issue at trial, seizing the email as a type of smoking gun. The prosecuting attorney, however, explained that she had “told [Ms. Harman] to put the things she testifies to in the report. I‘m not telling her what to say. But I know what her testimony is going to be. I needed her to put that in writing so I could turn it over to the defense.” Indeed,
VI.
{¶33} “In criminal proceedings, a defendant has the right to effective assistance of counsel under both the United States and Ohio Constitutions.” State v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45, citing the
{¶34} Mr. Calderon first criticizes his trial counsel for failing to call an expert witness to testify about delayed disclosure. “Generally, the decision not to call an expert witness does not constitute ineffective assistance of counsel because that decision is solely a matter of trial strategy.” State v. Patton, 1st Dist. Hamilton No. C-190694, 2021-Ohio-295, ¶ 30, citing State v. Coleman, 45 Ohio St.3d 298, 307-308, 544 N.E.2d 622 (1989). And “[b]ecause the decision not to present expert testimony may be tactical, the decision of trial counsel to rely on cross-examination of the state‘s expert does not equate tо ineffective assistance of counsel.” Patton at ¶ 30, citing State v. McRae, 1st Dist. Hamilton No. C-180669, 2020-Ohio-773, ¶ 19. On direct appeal, it is often impossible for us to review such claims without any proffer or other evidence in the record about how a hypothetical expert might have testified.
{¶35} The best that Mr. Calderon can muster is that his hoped-for expert would have undermined L.C.‘s credibility and the trial outcome likely would have been different. Perhaps, but we have no way of knowing that without elaboration on what, if any, facts and data that a defense expert on the disclosure process of child sexual assault victims would have offered. Because Mr. Calderon cannot demonstrate the nature of any defense expert testimony (and how its absence affected the trial), he fails to establish that he received ineffective assistance of counsel in this regard.
{¶36} Mr. Calderon next argues that his trial counsel stumbled by failing to exercise peremptory challenges or question potential jurors during voir dire. In this respect, he features three different jurors: (1) a juror who was a victim of a crime in which the perpetrator was never found; (2) another juror who had “strong feelings
{¶37} Although defense counsel did not individually question any of these jurors, the state thoroughly questioned each of them about these potential biases. During the state‘s inquiry, all three identified jurors assured the court that they would be able to be fair and impartial in this case.
{¶38} After the state‘s questioning, defense counsel reminded the jurors that they could only find Mr. Calderon guilty if the state reached its burden of proof beyond a reasonable doubt, and the trial court excused a juror who had received years of training on child sexual assaults as a volunteer with the Catholic church. On this record, Mr. Calderon fails to demonstrate that his counsel‘s performance was deficient for failing to exercise peremptory challenges or otherwise further question the idеntified jurors during voir dire.
{¶39} Mr. Calderon also argues that his trial counsel improperly failed to object to hearsay statements, statements made in violation of the Confrontation Clause, and leading questions.
{¶40} “In all criminal prosecutions, the accused shall enjoy * * * the right to be confronted with the witnesses against him.” Crawford v. Washington, 541 U.S. 36, 38, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), quoting the
{¶41} Mr. Calderon‘s claim that his trial counsel failed to object to leading questions fares no better. While ordinarily “[l]eading questions should not be used on the direct examination of a witness,”
{¶42} Next, Mr. Calderon contends that his counsel should have objected to Ms. Cremeans‘s testimony about delayed disclosure. But, as discussed in our review
{¶43} Finally, Mr. Calderon argues that defense counsel‘s failure to object at various points throughout the trial amounted to cumulative error, violating his constitutional rights. However, having considered his claims both individually and in the aggregate, we find that counsel‘s performance did not fall outside the wide range of reasonable professional assistance.
{¶44} Accordingly, Mr. Calderon does not establish that trial counsel was ineffective in any of the four instances he identified, nor does counsel‘s failure to object at various points throughout his trial constitute cumulative error. Mr. Calderon‘s fifth assignment of error is overruled.
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{¶45} In light of the foregoing analysis, we overrule all of Mr. Calderon‘s assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.