[Cite as State v. Wampler, 2016-Ohio-4756.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-15-1025 

 

 Appellee Trial Court No. CR0201401713 

v. 

Timothy Wampler DECISION AND JUDGMENT

Appellant Decided: June 30, 2016 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Evy M. Jarrett, Assistant County Prosecuting Attorney, for appellee. 

 Mollie B. Hojnicki-Mathieson, for appellant. 

* * * * * 

 JENSEN, P.J. 

{¶ 1} Defendant-appellant, Timothy Wampler, appeals the January 30, 2015 

judgment of the Lucas County Court of Common Pleas, convicting him of six counts of 

rape. For the reasons that follow, we affirm the trial court’s judgment. 
2.

I. Background 

{¶ 2} Ch.L. and P.L. are the parents of M.H. (male, born in 2004), C.L. (male, 

born in 2006), N.L. (male, born in 2008), E.L. (female, born in 2011), Z.L. (male, born in 

2012), and D.L. (male, born in 2013).1

 On February 16, 2014, Ch.L. entered M.H.’s 

room and found then three-year-old E.L. under a blanket with M.H. on top of her. She 

was lying face down and her tights were pulled down; M.H.’s pants were also pulled 

down and he was trying to insert himself inside of her. Ch.L., horrified, began yelling at 

M.H. to get out of his house. Ch.L. tended to E.L. then went outside. He returned inside 

to find M.H. curled up on the floor, crying to P.L. and repeatedly saying, “I’m only doing 

what Tim told me to do. I’m only doing what Tim showed me to do.” Ch.L. called 

9-1-1. 

{¶ 3} “Tim” is Timothy Wampler, the appellant in this case. Wampler is Ch.L.’s 

cousin and was living with the family in October through December of 2013. In response 

to Ch.L.’s 9-1-1 call, a Washington Township police officer was dispatched to the home. 

M.H. reported to the officer that Wampler had inappropriately touched him, C.L., and 

N.L. The boys were ultimately interviewed at the Child Advocacy Center (“CAC”) and 

underwent sexual assault examinations. The examining physician diagnosed M.H. and 

C.L. as having been sexually abused, and based on his inability to provide any details 

beyond that Wampler had done “bad stuff,” N.L. was diagnosed as having been allegedly

 

1

 Ch.L. is not the biological father of M.H. and C.L. 
3.

sexually abused. Wampler was indicted on May 1, 2014, on six counts of rape, violations 

of R.C. 2907.02(A)(1)(b) and (B). 

{¶ 4} The case was tried to a jury on January 12-15, 2015, and the jury returned a 

verdict of guilty as to all counts. The trial court sentenced Wampler to life in prison 

without the possibility of parole as to each count, memorialized in a January 30, 2015 

judgment entry. Wampler appealed the trial court judgment and he assigns the following 

errors for our review: 

 FIRST ASSIGNMENT OF ERROR: THE EVIDENCE AT 

APPELLANT’S TRIAL WAS INSUFFICIENT TO SUPPORT THE 

CONVICTIONS. 

 SECOND ASSIGNMENT OF ERROR: APPELLANT’S 

CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

 THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT 

ERRED BY ALLOWING IMPROPER EVIDENCE BEFORE THE JURY. 

 FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT 

ERRED IN DENYING APPELLANT’S MOTION TO DISMISS. 

 FIFTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED 

IN FINDING N.L. COMPETENT TO TESTIFY AS A WITNESS. 

 SIXTH ASSIGNMENT OF ERROR: APPELLANT WAS 

DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS 
4.

GUARANTEED BY THE UNITED STATES AND OHIO 

CONSTITUTIONS.

II. Law and Analysis 

{¶ 5} In his first and second assignments of error, Wampler argues that his 

convictions were against the sufficiency and manifest weight of the evidence. He claims 

in his third assignment of error that the trial court improperly allowed the admission of 

hearsay evidence, character evidence, and irrelevant evidence, and he insists that the 

admission of this evidence was prejudicial. In his fourth and sixth assignments of error, 

he contends that the indictment and bill of particulars did not provide adequate notice of 

the charges against him or protect him from future jeopardy, thus the court erroneously 

denied his motion to dismiss filed on July 22, 2014, and furthermore, that trial counsel 

was ineffective for acquiescing to the adequacy of the indictment and bill of particulars. 

And finally, in his fifth assignment of error, Wampler maintains that the trial court erred 

in finding N.L. competent to testify. 

{¶ 6} We address Wampler’s assignments of error out of order. 

A. Competence 

{¶ 7} In his fifth assignment of error, Wampler claims that the trial court erred in 

concluding that N.L., who was six years old at the time of trial, was competent to testify. 

He contends that N.L.’s responses to the trial judge’s questions reveal that N.L. was 

unable to receive accurate impressions of fact, that he lacked an understanding of truth 

and falsity, and that he did not fully appreciate his responsibility to be truthful. 
5.

{¶ 8} Under Evid.R. 601(A), every person is competent to be a witness except 

“children under ten years of age, who appear incapable of receiving just impressions of 

the facts and transactions respecting which they are examined, or of relating them truly.” 

It is well-settled that the trial judge must make preliminary determinations as to the 

competency of all witnesses, including children. State v. Clark, 71 Ohio St.3d 466, 469-

70, 644 N.E.2d 331 (1994). He or she must conduct a voir dire examination of a child 

under ten years old to determine whether he or she is competent to testify. State v. 

Frazier, 61 Ohio St.3d 247, 250-51, 574 N.E.2d 483 (1991). In making that 

determination, the court must consider “(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.” Id. “Because the 

trial court has the opportunity to observe the child’s appearance, manner of responding to 

questions, general demeanor and ability to relate facts accurately and truthfully, its 

determination will not be reversed absent an abuse of discretion.” State v. McNeill, 83 

Ohio St.3d 438, 442, 700 N.E.2d 596 (1998), citing Frazier at 250-251. 

{¶ 9} The trial judge conducted a competency hearing on October 10, 2014. In 

response to the judge’s questions, N.L. described the joint birthday party that he shared 

with his older brother in January and he and his siblings’ plans for Halloween. He 

identified his school and his teacher, and he talked about what he wants to be when he 
6.

grows up. He provided the name of the street where he lives and listed all the people that 

live in the house. He talked about his household chores. And he discussed the difference 

between telling the truth and telling a lie and explained the consequences for telling lies. 

{¶ 10} Wampler is skeptical about N.L.’s ability to receive accurate impressions 

of fact, to understand truth and falsity, and to appreciate his responsibility to be truthful 

because (1) N.L. testified that one of his chores is to clean the whole house, (2) he said 

that when he was two years old, he had to clean his bedroom, (3) he said that he got in 

trouble when he was two for not cleaning his room, and (4) he testified that he always 

does his chores without being asked, but then stated that when he was five, he did not do 

his chores. 

{¶ 11} This court has recognized that a competency voir dire must be viewed in its 

entirety. State v. Purnell, 6th Dist. Lucas No. L-92-392, 2000 WL 1298765, *3 (Sept. 15, 

2000). In Purnell, we surmised that “excessive scrutiny of any communication between 

an adult and a six year old would yield a list of discrepancies and miscommunications.” 

Id. Here, when read as a whole, we find that N.L.’s testimony demonstrated that he was 

able to receive accurate impressions of fact, that he was able to recall those impressions, 

that he was able to communicate his observations, that he understood truth versus falsity, 

and that he appreciated his responsibility to be truthful. We find no abuse of discretion in 

the trial court’s competency determination. 

{¶ 12} We find Wampler’s fifth assignment of error not well-taken. 
7.

B. Motion to Dismiss and Ineffective Assistance of Counsel 

{¶ 13} In his fourth assignment of error, Wampler challenges the trial court’s 

denial of his pretrial motion to dismiss which was premised on Wampler’s claim that the 

bill of particulars provided by the state was inadequate. In his sixth assignment of error, 

he claims that his trial attorney was ineffective for conceding the adequacy of the state’s 

amended bill of particulars. 

{¶ 14} The indictment in this case alleged six identical counts that read as follows: 

 THE JURORS OF THE GRAND JURY of the State of Ohio, within 

and for Lucas County, Ohio, on their oaths, in the name and by the 

authority of the State of Ohio, do find and present that TIMOTHY 

WAMPLER, on or between the 1st day of October, 2013 through the 31st 

day of December, 2013, in Lucas County, Ohio, did knowingly engage in 

sexual conduct with another who was not the spouse of the offender, or 

who was the spouse of the offender but was living separate and apart from 

the offender, when the victim was less than thirteen (13) years of age, 

whether or not the offender knew the age of the other person, and THE 

JURORS OF THE GRAND JURY further specifically find that the victim 

was less than ten (10) years of age, in violation of §2907.02(A)(1)(b) and 

(B) OF THE OHIO REVISED CODE, RAPE, BEING A FELONY OF 

THE FIRST DEGREE PUNISHABLE PURSUANT TO §2907.02(B), 
8.

contrary to the form of the statute in such case made and provided, and 

against the peace and dignity of the State of Ohio. 

{¶ 15} On May 22, 2014, Wampler filed a request for a bill of particulars. He 

claimed that while the allegations in the indictment recited the elements of the offense, 

they failed to provide adequate notice of the charges and protect him against double 

jeopardy because they employed only general language and failed to describe specific, 

identifiable incidents. Wampler acknowledged that there is often some temporal 

uncertainty when younger victims are involved, but he insisted that the state failed to 

make a real effort to determine the dates with greater precision. 

{¶ 16} In response, the state maintained that dates and times were not required to 

be specified, the bill of particulars need not provide the accused with specifications of 

evidence, and a bill of particulars is not required where, as in this case, the state has 

provided open-file discovery to the defendant. Nevertheless, it provided a bill of 

particulars that added the following language: “To wit: Timothy Wampler did 

knowingly engage in sexual conduct with another, M.H., who was not his spouse and 

was less than thirteen years of age.”2

 It added this language with respect to each 

victim, including two counts for each victim. 

{¶ 17} On July 22, 2014, Wampler filed a motion to dismiss, complaining that 

“[t]here is no provided context of time or place, [and] nothing that remotely helps [him] 

 

2

 We note that the date range of the offenses identified in the bill of particulars contains 

an obvious error. It is alleged that the incidents took place “between the 1st day of 

October 2013 through the 31st day of September 2013.” 
9.

match identifiable incidents to counts in the indictment.” He contended that to constitute 

“constitutionally sufficient notice, the indictment must have criminal counts which are 

anchored to distinguishable incidents of alleged conduct.” He maintained that the 

indictment did not protect him against double jeopardy, and he denied that there exists an 

“open-file discovery” exception to Crim.R. 7. 

{¶ 18} On September 15, 2014, the state provided an amended bill of particulars. 

With respect to all counts, it narrowed the dates of the offenses to October 29, 2013, to 

December 8, 2013. With respect to Counts 1 and 2, it added: “To wit: Timothy 

Wampler did knowingly engage in anal intercourse and fellatio with another, M.H., 

who was not his spouse and was less than thirteen years of age.” With respect to 

Counts 3 and 4, it added: “To wit: Timothy Wampler did knowingly engage in anal 

intercourse and fellatio with another, C.L., who was not his spouse and was less 

than thirteen years of age.” And with respect to Counts 5 and 6, it added: “To wit: 

Timothy Wampler did knowingly engage in anal intercourse with another, N.L., 

who was not his spouse and was less than thirteen years of age.” At a September 19, 

2014 pretrial proceeding, counsel for Wampler conceded that the amended bill of 

particulars contained the required specificity. The court agreed and denied Wampler’s 

motion to dismiss. 

{¶ 19} Wampler claims that it was error for the trial court to deny his motion to 

dismiss and that trial counsel was ineffective for stipulating to the adequacy of the 

amended bill of particulars. He insists that the amended bill of particulars still lacked 
10. 

“information sufficient to delineate distinguishable incidents of alleged conduct,” that he 

lacked adequate notice of the charges against him, and that he was not protected from 

future jeopardy. 

{¶ 20} “An indictment is sufficient if it (1) contains the elements of the offenses; 

(2) gives the defendant adequate notice of the charges; and, (3) protects the defendant 

against double jeopardy.” State v. Adams, 2014-Ohio-5854, 26 N.E.3d 1283, ¶ 28 (7th 

Dist.), citing Russell v. U.S., 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). The 

time and date of the offense is not required to be included in an indictment. State v. 

Stefka, 2012-Ohio-3004, 973 N.E.2d 786, ¶ 50 (7th Dist.). This is especially true in cases 

involving the sexual abuse of children. In such cases, it is sufficient to set forth a time 

frame during which the offenses occurred. Id. 

{¶ 21} Crim.R. 7(E) provides that upon a timely written request or upon court 

order: 

 The prosecuting attorney shall furnish the defendant with a bill of 

particulars setting up specifically the nature of the offense charge and of the 

conduct of the defendant alleged to constitute the offense. A bill of 

particulars may be amended at any time subject to such conditions as 

justice requires.

{¶ 22} “[T]he purpose for giving a bill of particulars is to elucidate or particularize 

the conduct of the accused, but not to provide the accused with specifications of evidence 

or to serve as a substitute for discovery.” (Internal citations and quotations omitted.) 
11. 

State v. Barrett, 8th Dist. Cuyahoga No. 89918, 2008-Ohio-2370, ¶ 16. It is not intended 

to take the place of formal discovery. Id. 

{¶ 23} In arguing that the indictment, as supplemented by the amended bill of 

particulars, did not provide adequate notice or protect against jeopardy, Wampler relies 

on Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), where the Sixth Circuit found that 

the 40-count indictment was constitutionally defective because each count was 

identically-worded and failed to distinguish the factual bases of the charges. However, 

“[c]hallenges based on Valentine have been rejected where the testimony and/or a bill of 

particulars provided sufficient differentiation among the counts of sexual abuse.” State v. 

Artz, 2015-Ohio-5291, --N.E.3d--, ¶ 34 (2d Dist.). 

{¶ 24} Here, the time frame in the amended bill of particulars was narrow—an 

approximate six-week window. The counts were separated out by child. And the counts 

specified the manner of penetration (anal intercourse and fellatio as to M.H. and C.L.; 

anal intercourse as to N.L.). In addition to this, “[e]ven if [a] bill of particulars is 

insufficient in itself, the defendant must show that lack of knowledge of certain facts 

required to be placed in the bill of particulars prejudiced his ability to fairly defend 

himself.” State v. Donkers, 170 Ohio App.3d 509, 2007-Ohio-1557, 867 N.E.2d 903, 

¶ 140 (11th Dist.). Wampler fails to explain how he was prejudiced here, and, in fact, the 

record suggests that there was no prejudice to Wampler. The record indicates (1) that the 

state agreed to provide witnesses’ statements to defense counsel pursuant to a protective 

order, (2) defense counsel told the court at a pretrial that “everybody knows what the 
12. 

anticipated evidence is or isn’t,” and (3) defense counsel was able to provide to his 

retained expert psychologist police reports, the recorded interviews of the victims, reports 

from children’s services, and hospital records, all of which provided specificity about the 

victims’ allegations. 

{¶ 25} Because we conclude that the bill of particulars provided sufficient 

specificity and that Wampler was not prejudiced by any purported insufficiency in the 

bill of particulars, we find no error in the trial court’s denial of Wampler’s motion to 

dismiss. We also find that trial counsel was not ineffective in acquiescing to the 

adequacy of the indictment and bill of particulars. 

{¶ 26} We find Wampler’s fourth and sixth assignments of error not well-taken. 

C. Improper Evidence 

{¶ 27} In his third assignment of error, Wampler challenges a number of the trial 

court’s evidentiary rulings. He breaks those challenges into the following categories: 

hearsay evidence, character evidence, and irrelevant evidence. We address each category 

in turn. 

I. Hearsay 

{¶ 28} Wampler claims that the trial court erred when it allowed Ch.L. and P.L. to 

testify about out-of-court statements made by M.H., C.L., and N.L. He also contends that 

the court erred because it allowed the state to play the recorded interviews of the children. 

{¶ 29} With respect to Ch.L. and P.L.’s testimony, the state insists that the 

children’s statements to law enforcement officers qualify as excited utterances under 
13. 

Evid.R. 803(2). It also maintains that admission of the statements was harmless because 

they mirrored properly-admitted trial testimony. With respect to the recorded interviews, 

the state counters that Daniel Swerdlow-Freed, Ph.D., Wampler’s expert psychologist, 

placed the interviews at issue when he criticized the manner in which the interviews were 

conducted. And again, the state argues that even if admission of the tapes was error, it 

was harmless because the children testified at trial. 

{¶ 30} A trial court has broad discretion concerning the admission of evidence and 

its rulings on such matters will not be disturbed absent an abuse of discretion. State v. 

Valsadi, 6th Dist. Wood No. WD-09-064, 2010-Ohio-5030, ¶ 40. An abuse of discretion 

is more than an error in judgment or mistake of law. “Abuse of discretion” connotes that 

the court’s attitude is arbitrary, unreasonable or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶ 31} The first instance of hearsay identified by Wampler involved Ch.L.’s 

description of what M.H. told the officer who responded to Ch.L.’s 9-1-1 call. Ch.L. 

testified: 

 Q: [Ch.L.], I asked you about what your son had said to the police 

officer regarding others. Was there any other people that he had 

mentioned? 

 A: Yes. 

 Q: Who? 

 A: He had mentioned his younger brother [C.L.]. 
14. 

 * * * 

 Q: And what did he mention about [C.L.]? 

 * * * 

 A: He had mentioned that Tim had done the same things - - he had 

witnessed Tim doing the same things to [C.L.]. 

 Q: Did he say what that you recall? 

 A: No, not that I recall. 

 Q: And what did he say about [N.L.]? 

 A: That he had also touched [N.L.]. 

{¶ 32} The next instance identified by Wampler is the following testimony by 

P.L.: 

 Q: And what did [M.H.] tell the officer? 

 A: [M.H.] told the officer that Tim had touched him, and the officer 

went into more details as to if [M.H.] had his clothes on or off, and [M.H.] 

said that there were times that Tim touched him through his clothes and 

with his clothes off. He asked him where in my house did it take place, and 

[M.H.] said everywhere, and he pointed to different rooms. He mostly 

pointed to my love seat that was sitting inside the house, the same love seat 

that Tim had slept on. And told that he also watched him do it to his other 

brothers. 

 * * * 
15. 

 Q: Did [C.L.] eventually tell the officer what happened? 

 A: Yes, he did. 

 Q: And what did he say? 

 A: He said he had it in his mouth, and the officer asked what did 

you have in his - - or what did he have in your mouth, and [C.L.] said his 

pee-pee, and the officer asked him other questions as far as was he touched, 

where was he touched, clothes on, clothes off, and [C.L.] answered them 

that he was touched in his genital area and clothes were on and clothes were 

off as well. 

 Q: And then [N.L.] got confronted? 

 A: Yes, [N.L.] did. 

 Q: And when [N.L.] - - and were you present for that? 

 A: Yes, I was. 

 * * * 

 A: The officer asked him again just like he asked the other two boys 

was he touched by the defendant, and he said, yes, and he said that he was 

touched, and [N.L.] based his abuse mostly inside of the bedroom that he 

said there was a lot of times that Tim came inside the bedroom while he 

was underneath the blanket and he would reach his hand under and touch, 

and his clothes would be off at that point. 
16. 

{¶ 33} Evid.R. 803(2) provides that “[t]he following are not excluded by the 

hearsay rule, even though the declarant is available as a witness: * * * (2) Excited 

utterance. 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.” The Ohio Supreme 

Court in State v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993), explained the 

justification for this hearsay exception: 

 Reactive excited statements are considered more trustworthy than 

hearsay generally on the dual grounds that, first, the stimulus renders the 

declarant incapable of fabrication and, second, the impression on the 

declarant’s memory at the time of the statement is still fresh and intense. 

Accordingly, Rule 803(2) assumes that excited utterances are not flawed by 

lapses of memory or risks of insincerity. Id., citing 1 Weissenberger’s Ohio 

Evidence (1992), Section 803.16. 

{¶ 34} While courts are reluctant to find a statement to be an “excited utterance” 

when a long period of time has elapsed between the event and the statement, “[t]here is 

no per se amount of time after which a statement can no longer be considered to be an 

excited utterance.” Id. at 303; State v. Duncan, 53 Ohio St.2d 215, 220, 373 N.E.2d 1234 

(1978) “[T]he question is whether the declarant is still under the stress of nervous 

excitement from the event.” State v. Fox, 66 Ohio App.3d 481, 489, 585 N.E.2d 561 (6th 

Dist.1990). The Ohio Supreme Court has upheld the admission of statements made by 

children who were sexually assaulted even after a substantial lapse of time. It has done 
17. 

so because “children are likely to remain in a state of nervous excitement longer than 

would an adult,” and because of its recognition that young children possess “limited 

reflective powers.” Taylor at 304. The “[i]nability to fully reflect makes it likely that the 

statements are trustworthy.” Id. 

{¶ 35} In State v. Kincaid, 9th Dist. Lorain Nos. 94CA005942, 94CA005945, 

1995 WL 608407, *4 (Oct. 18, 1995), the court found statements of a six-year-old child 

to be “excited utterances” despite the fact that the statements were made months after she 

had been sexually abused. In State v. Ames, 12th Dist. Butler No. CA2000-02-024, 

2001 WL 649734, *5-6 (June 11, 2001), the court permitted testimony about statements 

made by the child-victim approximately two months after the sexual abuse occurred. 

And in State v. Stipek, 7th Dist. Belmont No. 92-B-59, 1995 WL 152488, *1 (Mar. 30, 

1995), the court permitted testimony about statements made by the 16-year-old victim 

four-to-six weeks after the sexual abuse had occurred. In addition to this, courts have 

held that the event producing the excitement may be “a subsequent event that caused the 

‘stress of excitement’ of the earlier sexual assault to reoccur.” State v. Butcher, 170 Ohio 

App.3d 52, 2007-Ohio-118, 866 N.E.2d 13, ¶ 33 (11th Dist.). 

{¶ 36} “A reviewing court should give the trial court wide discretion when the 

trial court decides that statements made by a child-victim about sexually abusive acts 

qualify as excited utterances.” (Citations omitted.) Ames at *5. The court must look to 

the facts and circumstances of the particular case in determining “whether the time 

between an exciting event and the exclamation of the declarant is sufficient to be deemed 
18. 

an excited utterance.” State v. List, 9th Dist. Summit No. 17295, 1996 WL 221899, *2 

(May 1, 1996), citing State v. Duncan, 53 Ohio St.2d 215, 219, 373 N.E.2d 1234 (1978). 

{¶ 37} Here, Ch.L. and P.L. described a chaotic and highly stressful scene. Ch.L. 

walked in on M.H. with his pants pulled down trying to insert himself into three-year-old 

E.L. Ch.L. testified that he started screaming, “get the fuck out of my house. [M.H.] get 

the fuck out.” According to P.L., “the whole house just came to a halt.” Ch.L. stormed 

out of the house and returned to find M.H. lying in fetal position on the floor, crying to 

his mother and telling her how he was doing what Wampler had done and what Wampler 

had shown him. That’s when Ch.L. called the police. Although the statements at issue 

were made approximately two months after the abuse ended, the circumstances as 

described lead us to conclude that the trial court did not abuse its discretion in admitting 

the statements under Evid.R. 803(2). 

{¶ 38} Turning to the admission of the videotaped interviews of the children, Dr. 

Swerdlow-Freed testified about the protocol for interviewing children who are alleged to 

have been abused. On direct examination, he opined that the forensic interviewer from 

the CAC made a number of mistakes in interviewing M.H., C.L., and N.L. by (1) failing 

to establish ground rules with the children, (2) making suggestive prompts in seeking 

information, (3) exhibiting interviewer bias, and (4) failing to ask open-ended questions. 

Dr. Swerdlow-Freed concluded that because of the nature and pervasiveness of the 

interviewer’s mistakes, it was unlikely that she had obtained a reliable account from the 
19. 

children. His report—where specific questions and answers from the interview were 

cited to illustrate his criticisms— was admitted into evidence. 

{¶ 39} In light of these criticisms, the state maintains that Dr. Swerdlow-Freed 

placed the interviews at issue and, accordingly, the recordings were properly played for 

the jury in their entirety under Evid.R. 106. Evid.R. 106 provides: 

 When a writing or recorded statement or part thereof is introduced by 

a party, an adverse party may require the introduction at that time of any 

other part or any other writing or recorded statement which is otherwise 

admissible and which ought in fairness to be considered contemporaneously 

with it. 

The purpose of Evid.R. 106 is to “prevent one party from taking statements out of context 

and distorting them.” State v. Byrd, 9th Dist. Lorain No. 03CA008230, 2003-Ohio-7168, 

¶ 26. It “‘contemplates a very high degree of discretion to be exercised by the trial 

judge.’” State v. Arrington, 12th Dist. Clinton No. CA2012-02-002, 2012-Ohio-5009, 

¶ 12, quoting Weissenberger, Weissenberger’s Ohio Evidence Treatise, Section 106.1, 49 

(2011). 

{¶ 40} Here, Wampler offered into evidence a report from Dr. Swerdlow-Freed 

that recited a number of the interviewer’s questions and the children’s answers without 

providing the context of those questions and answers. He also specifically concluded that 

due to improper technique, the interviewer elicited an inaccurate report from the children. 

The state was entitled to show the jury the recordings in their entirety so that it could 
20. 

properly evaluate the conclusions reached by Dr. Swerdlow-Freed. We find no abuse of 

discretion in the trial court’s admission of the recorded interviews. 

2. Character Evidence 

{¶ 41} Wampler also claims that the trial court erred when it allowed the state to 

offer evidence (1) that in 2008, Wampler had been accused of sexual abuse, and (2) that 

Wampler used his cell phone to access pornographic websites. He claims that this 

evidence was offered solely to show a propensity to commit the crime and to prove that 

he acted in conformity with his character. 

{¶ 42} With respect to the 2008 allegation of abuse, the state claims that Wampler 

was properly questioned about the allegations because it was probative of his 

truthfulness. Specifically, Wampler acknowledged on cross-examination that he told a 

Lucas County Children’s Services (“LCCS”) worker in 2014 that he had never been 

accused of sexual abuse. When the state questioned the accuracy of that statement, 

Wampler claimed that he had only recently learned that he had been accused of sexual 

abuse in 2008. Over Wampler’s objection, the court allowed this line of questioning 

which ultimately ended with Wampler insisting that he only recently learned that he had 

been accused in 2008. 

{¶ 43} “Evid.R. 608(B) provides that a witness may, in the court’s discretion, be 

questioned on cross-examination as to specific instances of a witness’s conduct ‘* * * if 

clearly probative of truthfulness or untruthfulness * * *.’ However, the weight of 

authority is clear that the examiner is then ‘stuck’ with the responses given by the witness 
21. 

on cross-examination.” State v. Strobel, 51 Ohio App.3d 31, 36, 554 N.E.2d 916 (3d 

Dist.1988). 

{¶ 44} Here, the state had reason to believe that Wampler had been dishonest 

during his interview with LCCS. Wampler denied that he had been dishonest, he briefly 

explained his position, and the state ceased its questioning on this topic. We find no 

abuse of discretion in the trial court’s decision to allow the state to engage in this line of 

inquiry. 

{¶ 45} With respect to evidence about pornography, the state called Toledo Police 

Detective David Morford to testify about data retrieved from Wampler’s phone. He 

testified that there was one pornographic image on Wampler’s phone and that various 

pornographic websites had been visited through the phone. Wampler claims that the state 

offered this evidence to show that “he must have acted in conformity with his character 

and committed Rape.” The state counters that M.H. testified at trial that Wampler 

showed him a pornographic movie on his phone. It explains that its expert testified that 

exposing a child to matters of a sexual nature is a way that abusers “groom” or 

desensitize their victim in an effort to condition the child to accept the abuse and to 

refrain from reporting it. The pornography was relevant to this theory. We agree with 

the state that evidence of the pornographic image and the viewing of pornographic 

websites from Wampler’s cell phone were admitted for purposes other than simply to 

prove conduct in conformity with Wampler’s character. 
22. 

3. Relevance 

{¶ 46} Wampler also claims that the trial court allowed the admission of irrelevant 

evidence when it permitted the state’s expert, Dr. Schlievert, to testify as to “grooming” 

as it relates to sex offenses, and that the court erred in allowing the state to question Dr. 

Swerdlow-Freed about the mental health diagnosis of pedophilia. Even if not irrelevant, 

Wampler claims that the evidence was admitted in violation of Evid.R. 403 because the 

probative value was substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury. He insists that the admission of the 

foregoing evidence was not harmless. 

{¶ 47} As to Dr. Schlievert’s testimony about grooming, the state urges that 

because M.H. testified that Wampler had shown him a pornographic movie, it was 

appropriate for the court to allow the state to elicit testimony from Dr. Schlievert about 

different ways that abusers “groom” their victims, including by exposing them to 

pornographic images as a way of desensitizing them to matters of a sexual nature. 

Wampler counters that one instance of exposing M.H. to pornographic images does not 

rise to a level of a “progressive stepwise situation,” as described by Dr. Schlievert. 

{¶ 48} We find no abuse of discretion in the trial court’s decision to admit this 

testimony. For one, the viewing of pornographic images on Wampler’s phone was not 

the only example that Dr. Schlievert gave of grooming. For instance, he also cited as an 

example of grooming Wampler’s assurances to M.H. that everything was alright and that 

anal intercourse would become less painful with time. And Dr. Schlievert explained that 
23. 

there was no “cookbook pattern” method of grooming. In any event, defense counsel 

cross-examined Dr. Schlievert and he conceded that a number of typical grooming 

behaviors did not appear in this case. 

{¶ 49} With respect to questions asked of Dr. Swerdlow-Freed about pedophilia, 

Wampler contends that he was never diagnosed as being a pedophile, thus testimony 

concerning the DSM-IV and DSM-V criteria for pedophilia was irrelevant. The state 

counters (1) that its questions about pedophilia focused on victim behavior, such as 

delayed disclosure, (2) that defense counsel agreed that the questioning was relevant as it 

pertained to victim behavior, and (3) the questioning was limited in scope, focusing only 

on factors that might prevent disclosure by the child, such as threats and attentiveness to 

gain the loyalty of the child. We agree with the state that the questioning was very 

limited in scope, was limited to victim behavior, and was, therefore relevant. 

{¶ 50} Finally, we reject Wampler’s contention that the prejudicial effect of this 

evidence outweighed its probative value. 

{¶ 51} We find Wampler’s third assignment of error not well-taken. 

D. Sufficiency and Manifest Weight of the Evidence 

{¶ 52} In his first assignment of error, Wampler claims that the evidence was 

legally insufficient to support his convictions, and in his second assignment of error, he 

claims that his convictions were against the manifest weight of the evidence. 

{¶ 53} Whether there is sufficient evidence to support a conviction is a question of 

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a 
24. 

challenge to the sufficiency of evidence, “[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.” 

(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 

(1997). In making that determination, the appellate court will not weigh the evidence or 

assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378 

N.E.2d 1049 (1978). 

{¶ 54} When reviewing a claim that a verdict is against the manifest weight of the 

evidence, the appellate court must weigh the evidence and all reasonable inferences, 

consider the credibility of witnesses, and determine whether the jury clearly lost its way 

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice 

that the conviction must be reversed and a new trial ordered. Thompkins at 387. We do 

not view the evidence in a light most favorable to the state. “Instead, we sit as a 

‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’” 

State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing 

Thompkins at 388. Reversal on manifest weight grounds is reserved for “the exceptional 

case in which the evidence weighs heavily against the conviction.” Thompkins at 387, 

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶ 55} We begin with Wampler’s claim that the evidence was insufficient to 

sustain his convictions on six counts of rape. He argues that (1) there was no physical 

evidence to support the children’s claims, (2) there were no eyewitnesses, (3) the only 
25. 

evidence was the testimony of M.H. and C.L., (4) N.L. testified at trial that he could not 

remember what happened, (5) the children did not report the abuse until almost two 

months after he moved out, (6) the opinions of the state’s expert were based solely on the 

children’s statements, (7) the children’s statements are insufficient to establish beyond a 

reasonable doubt that Wampler engaged in sexual conduct with them, and (8) the defense 

expert testified that the children’s interviews were not properly conducted. He also 

claims that the events as established at trial are not credible. 

{¶ 56} According to Wampler, the evidence at trial established that the family’s 

home was small. M.H., C.L., and N.L. shared a bedroom, and their bedroom did not have 

a door—a blanket hung where the door would be. Ch.L. and P.L. slept with their door 

open and P.L. testified that she could hear what transpired in the home. The family also 

owned two Pomeranian dogs and those dogs barked when the children played rough or 

when people walked through the home at night. Wampler claims that despite the family 

living in close quarters and the presence of dogs, neither Ch.L., or P.L., nor anyone else 

in the home ever heard anything strange or walked in on anything inappropriate. 

Wampler insists he was never left alone with only one child at a time and that P.L. was 

home both day and evening hours unless she was running errands or taking the children 

to doctors’ appointments. Based on these facts, Wampler maintains that it is implausible 

that he could have raped the children. 
26. 

{¶ 57} In this assignment of error, Wampler is essentially challenging the 

credibility of the witnesses. We do not weigh credibility on a claim of legal 

insufficiency. But even under a manifest-weight standard, we find no error here. 

{¶ 58} First, according to the evidence presented, Wampler raped the boys in front 

of each other. So to say that no one in the home ever heard anything strange or walked in 

on anything inappropriate is directly contrary to the evidence. Second, “[t]here is no 

requirement, statutory or otherwise, that a rape victim’s testimony must be corroborated 

as a condition precedent to conviction.” State v. Reinhardt, 10th Dist. 04AP-116, 2004-

Ohio-6443, ¶ 29. “[T]he testimony of a rape victim, if believed, is sufficient to support 

each element of rape.” (Internal citations omitted.) Id. In addition, “corroborating 

physical evidence is unnecessary in a rape case.” State v. Birt, 2013-Ohio-1379, 

5 N.E.3d 1000, ¶ 48 (12th Dist.). 

{¶ 59} Although under a manifest-weight standard we consider the credibility of 

witnesses, we must nonetheless extend special deference to the jury’s credibility 

determinations given that it is the jury who has the benefit of seeing the witnesses testify, 

observing their facial expressions and body language, hearing their voice inflections, and 

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist. 

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. Here, the jury observed the witnesses’ 

testimony, weighed the evidence, resolved any inconsistencies in the testimony, 

considered the totality of the evidence, and found Wampler guilty. We find no error in its 

conclusion.
27. 

{¶ 60} Wampler contends that even if the court finds that there was sufficient 

evidence beyond a reasonable doubt, the evidence was insufficient to establish that the 

inappropriate touching satisfied the definition of sexual conduct as it relates to N.L. 

because “[t]he only statement in the record as to what N.L. allegedly reported was that 

appellant put his penis at his butt, not in his butt.” He maintains that for anal intercourse 

to occur there must be some evidence of insertion; contact with the buttocks alone is 

insufficient. 

{¶ 61} When questioned by the CAC interviewer, N.L. reported anal penetration: 

 Q: Where did he put his penis? 

 A: My butt. 

 * * * 

 Q: He only put his penis in your butt? 

 A: [Nodded affirmatively.] 

 * * * 

 Q: How many times do you think it happened? 

 A: A lot. 

{¶ 62} But even setting this aside, N.L.’s brother, C.L., witnessed Wampler anally 

penetrate N.L. C.L. testified: 

 Q: Okay. Let’s talk about [N.L.]. Did you see anything with 

[N.L.]? 
28. 

 A: I seen the same things with [N.L.] I didn’t know how many 

times he did it with [N.L.] because I wasn’t in the room some of the times. 

 Q: How many times do you think you were in the room? 

 A: One or two times. 

 Q: And what did you see him do to [N.L.]? 

 A: Put his front private in [N.L.’s] back private and put his front 

private in [N.L.’s] mouth. 

{¶ 63} Thus, contrary to Wampler’s assertions, there was sufficient evidence of 

anal penetration of N.L. 

{¶ 64} We find Wampler’s first and second assignments of error not welltaken. 

III. Conclusion 

{¶ 65} We find each of Wampler’s six assignments of error not well-taken, and 

affirm the January 30, 2015 judgment of the Lucas County Court of Common Pleas. 

Wampler is ordered to pay the costs of this appeal in accordance with App.R. 24. 

Judgment affirmed. 
29. 

 State v. Wampler 

 C.A. No. L-15-1025 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Thomas J. Osowik, J. _______________________________ 

JUDGE 

Stephen A. Yarbrough, J. 

_______________________________ 

James D. Jensen, P.J. JUDGE 

CONCUR. 

_______________________________ 

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.