State v. WhitingState v. Whiting
Timothy Young, Ohio Public Defender, and Allen Vender, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Smith, P.J.
{¶1} This is an appeal from a conviction for rape, a first-degree felony in violation of R.C. 2907.02(A)(1)(b), and gross sexual imposition, a third-degree felony in violation of R.C. 2907.05. Appellant Ronald Whiting, contends 1) that he received ineffective assistance of counsel because his attorney failed to object to inadmissible hearsay; 2) that the trial court violated his rights to due process and a fair trial when, in the absence of sufficient evidence, it entered a judgment of conviction for rape; and 3) that the trial court erred by allowing the jury to hear his
FACTS
{¶5} The matter proceeded through the discovery process and was tried before a jury on April 24, 2019. The State presented several witnesses at trial, including the child, the child’s mother, the sexual assault treatment nurse who cared for the child in the emergency room, the child abuse specialist who interviewed the child at the Ross County Child Protection Center, the physician who conducted a physical examination of the child at the Child Protection Center, and the detective who conducted the investigation into the incidents alleged by the child. The defense presented only one witness, the child’s grandmother.
{¶7} E.S.’s mother, S.S., also testified at trial. She testified that when she arrived to pick up E.S. from her mother’s house, E.S. wanted to leave. She explained that this was unusual because normally the child “would beg to stay” and would ask her to “come back later.” S.S. testified that just after she finished bathing the child after they returned home that day, the child told her “that Papaw told her a secret, it was their secret and she wasn’t allowed to tell.” S.S. testified that she asked the child about the secret and was told “that Papaw kissed her vagina.” She testified that as she was telling her this, E.S. was actually “touching around that area herself.” S.S. testified that E.S. told her that it happened when she was on the couch while her grandmother was asleep and that “she thought that he used his fingers on her [vagina].” At that point the child repeated the same information to her father. Thereafter, S.S. and her husband called S.S.’s mother, who essentially blamed the incident on the child.
{¶9} Julie Fairchild, Adena Medical Center sexual assault treatment nurse (SANE), also testified for the State. She testified, after reviewing her assault history documentation, that she provided care to E.S. in the emergency room and that E.S. referred to Appellant as “Papaw Ronnie.” She further testified E.S. stated that Papaw Ronnie “put his mouth on [her] bad spot.” When Fairchild asked the child what her “bad spot” was she pointed to her vaginal area and responded it was her “vagina.” Fairchild further testified that E.S. reported that Appellant “tickled her bad spot with this finger,” and “put his mouth on [her] bad spot.” The Adena Medical Center emergency room records were admitted as evidence at trial as well.
Q: Did she [E.S.] describe any alleged sexual assaults to you at that point in time during the face-to-face?
A: Yes, she did.
Q: And what did she relay to you?
A: She relayed that her Papaw had pulled down her pants and underwear part way while they were on the couch and then proceeded to place his mouth on her vaginal area.
Q: Did you have the opportunity to ask her if he had touched -- if Papaw her Papaw [sic] had touched her with any other parts of his body?
A: Yes, I did.
Q: And what was her response on October Eleven?
A: She said no.
Q: Did you have occasion to ask her if she had touched any parts of his bare body?
A: Yes, I did.
Q: And what was her response on that same date?
A: She said no.
{¶14} The State concluded its case after Detective Rourke’s testimony and the defense made a Crim.R. 29(A) motion for acquittal as to the rape count, based upon an argument that because there was no evidence of vaginal penetration with the exception of Appellant’s confession, the State had not established the corpus delicti of the crime. The defense further moved for judgment of acquittal on the gross sexual imposition counts, arguing that the State had failed to establish that the sexual contact was done for sexual gratification. The trial court denied the motions.
{¶16} The case was submitted to the jury for deliberation and Appellant was convicted on the rape count as well as one count of gross sexual imposition. It appears the jury acquitted Appellant on the gross sexual imposition count that alleged sexual contact occurred when the child touched Appellant’s bare penis. Appellant was ultimately sentenced to a prison term of fifteen years to life on the rape charge and a prison term of sixty months on the gross sexual imposition charge, to be served consecutively. It is from these convictions and sentences that Appellant now brings his timely appeal, setting forth three assignments of error for our review.
ASSIGNMENTS OF ERROR
II. “THE TRIAL COURT VIOLATED RONALD WHITING’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT ENTERED A JUDGMENT OF CONVICTION FOR RAPE.”
III. “THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR THE INTERVIEW OF WHITING, BECAUSE UNDER THE DOCTRINE
ASSIGNMENT OF ERROR I
{¶19} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. Strickland at 687; State v. Obermiller, 147 Ohio St.3d 175, 2016–Ohio–1594, 63 N.E.3d 93, ¶ 83; State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant‘s failure to satisfy one of the elements “negates a court‘s need to consider the other”).
{¶20} The deficient performance part of an ineffectiveness claim “is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland at 688. Accord Hinton at 1088. “Prevailing professional norms dictate that with regard to decisions pertaining to legal proceedings, ‘a lawyer must have “full authority to manage the conduct of the trial.” ’ ” Obermiller at ¶ 85, quoting State v. Pasqualone, 121 Ohio St.3d 186, 2009–Ohio–315, 903 N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Furthermore, “ ‘[i]n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.’ ” Hinton at 1088, quoting Strickland at 688. Accordingly, “[i]n order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation.” (Citation omitted.) State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95. Accord Hinton at 1088, citing Padilla at 366; State v. Wesson, 137 Ohio St.3d 309, 2013–Ohio–4575, 999 N.E.2d 557, ¶ 81.
{¶21} Moreover, when considering whether trial counsel‘s representation amounts to deficient performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. Additionally, “[a] properly licensed attorney is presumed to execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008–Ohio–482, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel‘s errors were “so serious” that counsel failed to function “as the ‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland at 687; e.g., Obermiller at ¶ 84; State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).
{¶22} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that “ ‘but for counsel‘s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the outcome.’ ” Hinton at 1089, quoting Strickland at 694; e.g., State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶ 13; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus (1989). “ ‘[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’ ” Hinton at 1089, quoting Strickland at 695. Furthermore, courts may not simply assume the existence of prejudice, but must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003–Ohio–1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592, 2002-Ohio1597. As we have repeatedly recognized, speculation is insufficient to demonstrate the prejudice component of an ineffective assistance of counsel claim. E.g., State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014–Ohio–3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 13CA4, 2013–Ohio–2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012–Ohio–1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009–Ohio–6191, ¶ 68. Accord State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that is purely speculative cannot serve as the basis for an ineffectiveness claim).
{¶23} Initially, we observe that “ ‘[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). A defendant must also show that he was materially prejudiced by the failure to object. Holloway at 244. Accord State v. Hale, 119 Ohio St.3d 118, 2008–Ohio–3426, 892 N.E.2d 864, ¶ 233. Additionally, tactical decisions, such as whether and when to object, ordinarily do not give rise to a claim for ineffective assistance. State v. Johnson, 112 Ohio St.3d 210, 2006–Ohio–6404, 858 N.E.2d 1144, ¶ 139–140. As set forth above, however, Appellant argues there was no strategic reason for defense counsel to fail to object to the statements at issue.
{¶24} Generally, “ ‘[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court.’ ” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 87, quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus (1987). “Thus, absent an abuse of discretion, an appellate court will not disturb a trial court‘s ruling regarding the admissibility of evidence.” State v. Leasure, 2015-Ohio-5327, 43 N.E.3d 477, ¶ 32 (4th Dist.). “ ‘A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.’ ” State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. Although an abuse of discretion standard of review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court, an abuse of discretion includes a situation in which a trial court did not engage in a “sound reasoning process.” Darmond at ¶ 34.
{¶25} However, as set forth above, Appellant’s trial counsel failed to object to the admission of the child’s statements through the testimony of the child’s mother. Failure to object to an alleged error waives all but plain error. State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015–Ohio–1926, ¶ 15; State v. Keeley, 4th Dist. Washington No. 11CA5, 2012–Ohio–3564, ¶ 28. This failure is the basis of Appellant’s ineffective assistance of counsel claim. Notice of Crim.R. 52(B) plain error must be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010–Ohio–3286, 934 N.E.2d 920, ¶ 6; State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus (1978). To find plain error, the outcome of trial must clearly have been otherwise. State v. McCausland, 124 Ohio St.3d 8, 2009–Ohio–5933, 918 N.E.2d 507, ¶ 15; State v. Braden, 98 Ohio St.3d 354, 2003–Ohio–1325, 785 N.E.2d 439, ¶ 50.
{¶26} “ ‘Hearsay’ is 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.” Evid.R. 801(C). “Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio.” Evid.R. 802. The pertinent exception here is Evid.R. 803(2), the excited-utterance exception, which provides that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule.
{¶27} In Ohio, courts apply a four-part test to determine the admissibility of a statement as an excited utterance, as follows:
“(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement of declaration spontaneous and unreflective,
(b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs,
(c) that the statement or declaration related to such startling occurrence or the circumstances of such starling occurrence, and
(d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.”
(Emphasis sic.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two of the syllabus, followed and approved by State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d 316, fn. 2 (1993). The rationale of the rule is that circumstances surrounding the excited statement prevent the declarant from using reflective processes to fabricate a statement.
{¶28} As explained in State v. Jones, supra:
“There is no per se amount of time after which a statement can no longer be considered to be an excited utterance. The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be a result of reflective thought.
Therefore, the passage of time between the statement and the event is relevant but not dispositive of the question. ‘[E]ach case must be decided on its own circumstances, since it is patently futile to attempt to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation.’ ” (Emphasis sic.) State v. Jones, supra, at 168, quoting State v. Taylor, supra, 303, quoting State v. Duncan, 53 Ohio St.2d 215, 219-220, 373 N.E.2d 1234 (1978).
{¶29} Furthermore, this Court has observed that in the context of young children who are the victims of sexual assault, the requirements for an excited utterance are tempered by the recognition of their limited reflective powers. State v. Felts, 2016-Ohio-2755, 52 N.E.3d 1223, ¶ 55 (4th Dist.). This is so because their “ ‘[i]nability to fully reflect makes it likely that the statements are trustworthy.’ ” Id., quoting State v. Taylor, supra, at 304. We also recognized in Felts that “ ‘children are likely to remain in a state of nervous excitement longer than would an adult in cases involving hearsay statements by a child declarant.’ ” Felts at ¶ 56, quoting State v. Taylor at 304. As a result, “courts have upheld the application of the excited-utterance exception even where several days or weeks have elapsed since the startling event.” Id., citing State v. Wilson, 4th Dist. Scioto No. 13CA3542, 2015-Ohio-2016, ¶ 90, and cases cited there, including In re C.C., 8th Dist. Cuyahoga Nos. 88320 and 88321, 2007-Ohio-2226, ¶ 53 (concluding that children‘s statements made 27 days after incident qualified as excited utterances).
{¶30} Additionally, as we explained in Felts, “[o]ther relevant factors generally indicating whether the declarant was in a sufficient state of excitement or stress when making the statement include outward indicia of emotional state, like tone of voice, accompanying actions, and general demeanor. Felts at ¶ 57; citing State v. F.R., 2015-Ohio-1914, 34 N.E.3d 498, ¶ 28, (10th Dist.).
Legal Analysis
“The admission of a declaration as an excited utterance is not precluded by questioning which: (1) is neither coercive nor leading, (2) facilitates the declarant‘s expression of what is already the natural focus of the declarant‘s thoughts, and (3) does not destroy the domination of the nervous excitement over the declarant‘s reflective faculties.” State v. Felts, [supra, at] ¶ 59, quoting State v. Wallace, 37 Ohio St.3d 87, 524 N.E.2d 466 (1988), paragraph two of the syllabus (involving the questioning of a child by her mother); State v. Jones, supra, at ¶ 170.
Here, there is no indication the child’s mother’s questions were coercive or leading. Instead, the evidence indicates the child’s mother was simply inquiring about the secret the child had spontaneously mentioned. Further, there is no indication that the child’s mother’s inquiry destroyed the domination of the nervous excitement over the child’s reflective faculties. This is true especially in light of the fact that, as discussed above, in the case
{¶33} Contrary to Appellant’s arguments, a review of the record indicates that it appears the child was still in a state of nervous excitement at the time she made the statements, and thus her statements were spontaneous and unreflective, as contemplated under the four-part test set forth above. A sexual assault certainly constitutes an occurrence startling enough to produce nervous excitement in a child and the caselaw is clear that a state of nervous excitement from such a startling event may last hours, days or even weeks in a child victim. Furthermore, the statements made by the child directly related to the startling occurrence and the child was certainly a first-hand observer of the events at issue as she was the victim. As such, we conclude that all four elements of the four-part test have been met here. Thus, even if Appellant’s trial counsel had objected to the admission of the statements, we cannot conclude the trial court erred, let alone committed plain error, in admitting these statements, as they can be properly classified as excited
{¶34} Furthermore, because the statements were properly admitted into evidence, we cannot conclude counsel was ineffective for failing to object to the admission of these statements. Additionally, as argued by the State, even if these statements had not constituted excited utterances, the child’s statements indicating Appellant had not only made oral contact, but digital contact, with her vaginal area would have been admissible through the testimony of the hospital personnel as statements made for purposes of medical treatment or diagnosis. These statements were also documented in the medical records that were admitted as exhibits at trial. Moreover, the child actually testified at trial as to Appellant’s oral contact with her vagina. As such, we find any objection made by trial counsel would very likely have been futile. Counsel’s failure to object did not affect the outcome of the trial in light of the other evidence properly admitted at trial demonstrating Appellant’s guilt, including Appellant’s confession, which will be discussed more fully under his second and third assignments of error. Accordingly, we find no merit to Appellant’s first assignment of error and it is overruled.
ASSIGNMENTS OF ERROR II AND III
{¶35} For ease of analysis, we address Appellant’s second and third assignments of error together. In his second assignment of error, Appellant
{¶36} “A claim of insufficient evidence invokes a due process concern and raises the question of whether the evidence is legally sufficient to support the verdict as a matter of law.” State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 12 (4th Dist.), citing State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 22; State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt.” Blanton, 2018-Ohio-1278, 110 N.E.3d 1 at ¶ 12, citing Thompkins, 78 Ohio St.3d 380 at syllabus. “The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.” Blanton, 2018-Ohio-1278, 110 N.E.3d 1 at ¶ 12; citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991).
{¶37} This test raises a question of law and does not allow us to weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 174, 485 N.E.2d 717 (1983). Rather, the test “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. 307 at 319. We reserve the issues of the weight given to the evidence and the credibility of witnesses for the trier of fact. State v. Thomas, 70 Ohio St.2d 79, 79–80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus (1986). However, we review a trial court‘s decision as to whether the State established the corpus delicti of a crime under a manifest weight-of-the-evidence standard. See In re W.B. II, 4th Dist. No. 08CA18–2009–Ohio 1707, ¶ 31 and 32.
{¶38} This Court has explained in detail the corpus delicti requirement several times in recent years. See In re W.B., II, 4th Dist. No. 08CA18–2009–Ohio 1707, at ¶ 33-34; State v. Puckett, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 16 (4th Dist.); State v. Young, 4th Dist. Washington No. 12CA14, 2013-Ohio-3418, ¶ 27. As most recently observed in State v. Young, 4th Dist. Washington No. 12CA14, 2013-Ohio-3418, “ ‘[t]he corpus delicti of a crime is essentially the fact of the crime itself.’ ” Young, 4th Dist. Washington No. 12CA14, 2013-Ohio-3418 at ¶ 27, quoting State v. Hofer, 4th Dist. Adams No. 07CA835, 2008-Ohio-242, ¶ 36; see also State v. Haynes, 130 Ohio App.3d 31, 34, 719 N.E.2d 576 (1998).
The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make it a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged. Maranda at paragraph two of the syllabus; see also State v. Edwards, supra, at ¶ 34; State v. Young, supra, at ¶ 27.
{¶40} Further, the outside or extraneous evidence may be direct or circumstantial. Young, 4th Dist. Washington No. 12CA14, 2013-Ohio-3418 at ¶ 27, citing Maranda at 371; see also State v. Nicely, 39 Ohio St.3d 147, 154-155, 529 N.E.2d 1236 (1988) and State v. Clark, 106 Ohio App.3d 426, 431, 666 N.E.2d 308 (1995).
{¶42} In this matter, we find the State carried its minimal burden of proving independent evidence of the corpus delicti of the crime of rape. As set forth above, Appellant was convicted of the rape of a child under the age of thirteen, in violation of
“(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
* * *
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.”
vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
{¶44} However, removing Appellant‘s confession from consideration, there was other independent evidence that the crime was committed. As set forth above, the child’s statements to her mother were properly admitted as excited utterances at trial and the child’s statements for purposes of medical treatment and diagnosis were also properly admitted. Furthermore, the child testified at trial. This testimony collectively indicated that Appellant put his mouth on this five-year-old
{¶46} Having found no merit in any of the assignments of error raised by Appellant, they are all overruled. Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.