[Cite as State v. Bowen , 2020-Ohio-24.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delane y , J. -vs- Case No. 19CA0007 ROBERT C. BOWEN Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Holmes County Court o f Common Pleas, Case No. 18CR0058

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: Januar y

6, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t ROBERT K. HENDRI X ERIC J. ALLEN Assistant Prosecutin g Attorne y The Law Office of Eric J. Allen, Ltd. Holmes Count y , Ohio 4200 Re g ent, Suite 200 164 E. Jackson Stree t Columbus, Ohio 43219 Millersbur g , Ohio 44654Holmes Count y , Case No. 19CA0007 2
Hoffman, P.J. {¶1} Defendant-appellant Robert C. Bowen appeals his convictions and sentence entered by the Holmes County Court of Common Pleas, on one count of rape and four counts of sexual battery, following a jury trial. Pla intiff-appellee is the state of Ohio. STATEMENT OF THE CASE AND FACTS {¶2} On June 4, 2018, the Holmes County Grand Jury indicted Appellan t on one count of rape, in violation of R.C. 2907.02(A)(2) and (B), a fe lony of the first degree; and four counts of sexual battery, in violation of R.C. 2907.03(A)( 5) and (B), felonies of the third degree. The charges arose from incidents involving Appel lant’s adopted daughter (“the Child”). Appellant appeared before the trial court for a rraignment on June 12, 2018, and entered pleas of not guilty to all of the charges. {¶3} The matter proceeded to jury trial on January 28, 2019. The fo llowing evidence was adduced at trial. {¶4} Mary Bowen testified she and Appellant were married on July 4, 2011. Although they were still legally married at the time of the tri al, Bowen indicated they had been separated for over a year. Bowen and Appellant became fos ter parents to the Child in September, 2012, and the child’s sister in November, 2012. Bowen and Appellant adopted both children on March 24, 2014. Bowen conceded the Ch ild and her sister had behavioral problems. {¶5} Bowen explained the Child and her sister were homeschooled afte r the Child’s sister called in a bomb threat to her elementary school . Bowen worked six days a week, usually from 7:30 a.m. to 5:30 or 6:00 p.m., but worked close enough to their home to check on the children during her lunch hour.Holmes Count y , Case No. 19CA0007 3 {¶6} In June, 2016, when the Child was 15 years old, she disclosed t o Bowen Appellant had touched her inappropriately. Bowen explained the Child had snuck out of the house around midnight one evening to meet a 19 or 20 year o ld young man, and did not return until 3:30 a.m. Bowen confronted the Child, telling her the young man would get in trouble if she (Bowen) called the police. The Child res ponded Bowen should call the police about Appellant as he had touched her. Bowen questi oned Appellant, who denied any wrongdoing. The Child later told Bowen she was lyin g. The Child returned to public school in September, 2017. {¶7} In January, 2018, after the Child’s sister set a number of fire s, Children’s Services became involved with the family. The Child’s sister t old Children’s Services Appellant had been abusing her and the Child. When Children’s Services questioned the Child regarding her sister’s disclosure, the Child denied any a buse by Appellant. {¶8} Bowen recalled the Child attended her prom the weekend of April 21, 2018. When the Child w as at school the following Monday, the Child di sclosed Appellant had been abusing her. Bowen was instructed to bring the Child to C hildren’s Services and thereafter learned about the Child’s disclosure. Bowen was con tacted by Victim’s Assistance and was informed Appellant had confessed. {¶9} The Child testified, when she was 15 years old, Appellant enter ed her bedroom and touched her breasts over her clothing. Appellant i nstructed her not to tell her mother. The Child recalled it was the summer and she was s ick. The Child detailed another incident which occurred when she was still 15. She not ed she was being homeschooled at the time and needed help with algebra. The Chi ld proceeded to Appellant’s bedroom which was located in the basement of the ho me. Appellant beganHolmes Count y , Case No. 19CA0007 4
to help her with her math, but then pushed her onto his bed and removed her clothes. Appellant vaginally penetrated her. Appellant told the Child n ot to tell anyone or he would not be her father anymore. Appellant also threatened to do the same to the Child’s sister if the Child told anyone. After the incident, the Child hurrie dly put on her clothes and returned upstairs to finish her schoolwork. The Child testifie d Appellant had sexual intercourse with her at least five times. Shortly before the C hild turned 16, she disclosed the abuse to Bowen. The Child admitted she later told Bowen sh e had made “the whole thing up”. Tr. at 128. {¶10} The Child testified, in January, 2018, she spoke with a detecti ve and a social worker after the Child’s sister had set a few fires in their ho me. The detective and the social worker questioned the Child about Appellant, but she did not disclose the abuse at that time. The Child disclosed the abuse to her boyfriend and a friend the night of her prom, April 21, 2018. The following Monday, the Child met with Ms. Gilson, the school liaison, and told the woman what Appellant had done to her. Ms . Gilson informed the Child she was required to contact the authorities. When the Ch ild returned home from school, Bowen met her at the bus and told her Children’s Servic es needed to speak with her. The Child met with Jacqueline Shaw and disclosed the abus e. {¶11} Sergeant James Henry, a detective with the Holmes County Sherif f’s Office, testified he interviewed Appellant on May 10, 2018. The interv iew was recorded and the recording was played for the jury. During the interview, Appel lant confessed to having a sexual relationship with the Child. Det. Henry acknowledged th e Child, during an interview on January 9, 2018, initially denied any sexual conta ct with Appellant. TheHolmes Count y , Case No. 19CA0007 5
detective explained it is not unusual for the victim of sexual abuse to initially not disclose the abuse occurred, but subsequently, after counseling, is able to do so. {¶12} Appellant testified on his own behalf. He explained he was con tacted by Det. Lay of the Millersburg Polic e Department, who requested Ap pellant come to the station to speak with him. Appellant phoned Det. Lay and the t wo spoke on the telephone for an hour. During the conversation, the detective set up a c omputerized voice stress analyzer (“CVSA”). Several weeks later, in February, 2018, App ellant was interviewed by Det. Lay. Appellant and the detective spoke for two hours, including the time conducting the CVSA. Appellant did not hear from the detective again. {¶13} On April 24, 2018, the Tuesday following the Child’s prom, Appe llant received a message he needed to call Job and Family Services. He was instructed to contact Det. Henry. When Appellant initially sat down with Det . Henry, he assumed he was being questioned about the situation with the Child’s siste r. Appellant was shocked by the allegations. Appellant denied confessing to Det. Henry and denied abusing the Child. {¶14} After hearing all the evidence and deliberating, the jury found Appellant guilty of all five counts contained in the Indictment. The tri al court sentenced Appellant to an aggregated term of incarceration of ten years. {¶15} It is from these convictions and sentence Appellant appeals, ra ising the following assignments of error:

I. THE STATE OF OHIO FAILED TO PRODUCE SUFFICENT [SIC] EVIDENCE TO CONVICT THE APPELLANT OF THE COUNTS IN THEHolmes Count y , Case No. 19CA0007 6

INDICTMENT IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT MADE APPLICABLE TO ALL STATE CRIMINAL PROSECUTIONS BY THE FOURTHEENTH [SIC] AMENDMENT TO THE FEDERAL CONSTITUTION. II. THE CONVICTIONS IN THIS MATTER ARE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE VIOLATIVE OF THE APPELLANT’S RIGHT TO DUE PROCESS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION. III. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A PUNITIVE DISCOVER SANCTION THAT WAS NOT THE LEAST RESTRICTIVE AND WAS VIOLATIVE OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT MADE APPLICABLE TO ALL STATE CRIMINAL PROSECUTIONS BY THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION. IV. THE TRIAL COURT COMMITTED ERROR BY ALLOWING DISCUSSION OF A CVSA TEST AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS GUARANTEED TO HIM UNDER THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO STATE CRIMINAL PROSECUTIONS BY THE FOURTEENTH AMENDMENT.Holmes Count y , Case No. 19CA0007 7

I {¶16} In his first assignment of error, Appellant contends his convic tions were not based upon sufficient evidence and the trial court erred in den ying his Crim. R 29 motion for acquittal. {¶17} Criminal Rule 29(A) provides a court must order the entry of a judgment of acquittal on a charged offense if the evidence is insufficient to sustain a conviction on the offense. Crim. R. 29(A). However, “a court shall not order an e ntry of judgment of acquittal if the evidence is such that reasonable minds can reach differe nt conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. Thus, a mo tion for acquittal tests the sufficiency of the evidence. State v. Tatum, 3d Dist. Seneca No. 13- 10-18, 2011-Ohio-3005, 2011 WL 2448972, ¶ 43, citing State v. Miley, 114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist. 1996). {¶18} When an appellate court reviews a record for sufficiency, the r elevant 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 eleme nts of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Accordingly, the question of w hether the offered evidence is sufficient to sustain a verdict is a question of la w. State v. Perkins, 3d Dist. Hancock No. 5-13-01, 2014-Ohio-752, 2014 WL 855870, ¶ 30, citin g Thompkins at 386, 678 N.E.2d 541.Holmes Count y , Case No. 19CA0007 8 {¶19} Appellant was convicted of one count of rape, in violation of R .C. 2907.02(A)(2) and (B), which provides:

(A)(2) No person shall engage in sexual conduct with another wh en the offender purposely compels the other person to submit by fo rce or threat of force. (B) Whoever violates this section is guilty of rape, a felony o f the first degree. * * *

{¶20} Appellant also was convicted of four counts of sexual battery, in violation of R.C. 2907.03(A)(5), which provides:

(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: * * * (5) The offender is the other person's natural or adoptive pare nt, or a stepparent, or guardian, custodian, or person in loco parenti s of the other
person.

{¶21} With respect to the rape charge, Appellant submits the evidence was insufficient as Appellant adamantly denied the incident giving rise to the rape charge and there was no corroborating evidence. With respect to the sexua l battery counts, Appellant explains the Child testified there was only one incident involv ing force, which was the basis for the rape charge.Holmes Count y , Case No. 19CA0007 9 {¶22} The Ohio Supreme Court in State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304(1988), a case involving the rape of a four year old by her father, addressed the element of force in a rape count. The Ohio Supreme Court expla ined:

Force need not be overt and physically brutal, but can be subtl e and psychological. As long as it can be shown that the rape victim' s will was overcome by fear or duress, the forcible element of rape can be established. State v. Martin (1946), 77 Ohio App. 553, 68 N.E.2d 807 [33 O.O. 364]; State v. Wolfenberger (1958), 106 Ohio App. 322, 154 N.E.2d 774 [7 O.O.2d 73]. In the within case, we are confronted with a child being told to do something by an important figure of authority, and commanded not to tell anyone about it. In such a case, we find nothing unreasonable a bout a finding that the child's will was overcome. Consequently, the f orcible element of rape was properly established. State v. Fowler (1985), 27 Ohio App.3d 149, 154, 27 OBR 182, 187, 500 N.E.2d 390, 395. Id . at 58-59.

{¶23} The evidence at trial established Appellant was the Child’s ado ptive father. The Child testified about an incident which occurred when she w as 15 years old. She was homeschooled at the time and needed help with algebra. The Child sought Appellant’s assistance. She proceeded to Appellant’s bedroom. Appellant began to help her with her math, but then pushed her onto his bed and removed her clothes. Appellant vaginally penetrated her. Appellant told the Child not to tell anyone or he would not be her father anymore. Appellant also threatened to do the same t o the Child’s sister if theHolmes Count y , Case No. 19CA0007 10 Child told anyone. The Child stated Appellant had sexual inter course with her at least five times. {¶24} We find coercion is inherent in parental authority when a fathe r sexually abuses his child. Further, we find Appellant’s threat of assaul ting the Child’s sister was a subtle and psychological force. The Child’s will was overcome by the fear and duress of harm to her sibling. Accordingly, we find the forcible element of rape was properly established. We also find the element of sexual battery were e stablished. Bowen testified she and Appellant were the Child’s adoptive parents. The Child detailed several incidents during which Appellant engaged in sexual conduct with her. {¶25} Based upon the foregoing, we find Appellant's convictions were based upon sufficient evidence. {¶26} Appellant’s first assignment of error is overruled. II {¶27} In his second assignment of error, Appellant challenges his con victions as against the manifest weight of the evidence. {¶28} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “i n reviewing the entire record, weighs the evidence and all reasonable inferences, considers th e credibility of witnesses, and determines whether in resolving conflicts in evidence the j ury ‘clearly lost its way and created such a manifest miscarriage of justice that the convict ion must be reversed and a new trial ordered’.” State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).Holmes Count y , Case No. 19CA0007 11 {¶29} “The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge the credibility of the witnesses. {¶30} Appellant asserts the Child was not a credible witness for seve ral reasons. First, Appellant refers to the Child’s initial disclosure of th e abuse to Bowen in 2016. When Bowen confronted the Child after she was caught sneaking o ut of the house to meet her boyfriend, the Child declared Appellant had abused her . The Child later recanted her allegation, explaining she had lied to get herself out of trouble. Next, Appellant points to the Child’s testimony she never told her si ster about the abuse. Appellant submits this statement was not credible as the two si sters were extremely close; therefore, the Child would have told her sister about the abuse . Appellant adds the Child acknowledged she was angry about the break-up of Bowen and Appe llant’s marriage, explaining her anger translated to revenge at Appellant. Final ly, Appellant notes the Child waited until 2018, to disclose the abuse to anyone. {¶31} Det. James Henry testified it is not unusual for a victim to in itially deny abuse has occurred. In fact, when the Child was questioned during he r cross-examination about her January, 2018 denial, she commented, “Why would I want to t ell four (4) strangers what I was going through?” Tr. at 148. The Child finally ackno wledged the abuse after she had “worked up enough courage.” Tr. at 149. {¶32} In addition, the videotape of Appellant’s interview with Det. H enry was played for the jury. During the interview, Appellant confessed to the crimes. AppellantHolmes Count y , Case No. 19CA0007 12
did not, however, concede he threatened the Child not to tell a nyone or forced her to have intercourse with him on the first occasion. {¶33} The jury was free to accept or reject any or all of the evidenc e offered by the parties and assess the witnesses' credibility. Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as tru e. State v. McGregor, 5th Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 294299. The jury clearly believed the testimony of the Child and the state’s other witne sses. {¶34} Upon review of the entire record, including reading the entire transcript, we find Appellant’s convictions were not against the manifest weig ht of the evidence. {¶35} Appellant’s second assignment of error is overruled. III {¶36} In his third assignment of error, Appellant argues the trial co urt erred in precluding the introduction of the Child’s text messages as a s anction for an alleged discovery violation. Appellant maintains such sanction was not the least restrictive and violated his right to due process. {¶37} “Although a criminal defendant has the right to present witness testimony on his behalf, a trial court may ‘exclude such evidence when th e orderly administration of justice is threatened by the accused's failure to promptly disc lose witnesses.’ “ State v. Calise, 9th Dist. No. 26027, 2012–Ohio–4797, ¶ 30, quoting State v. Moon, 74 Ohio App.3d 162, 169, 598 N.E.2d 726 (9th Dist. 1991). “The rules of discovery, and more specifically Crim. R. 16, imbue trial courts with the discretio n to exclude testimony that is not disclosed in a timely manner in order to prevent surprise a nd ensure a fair trial.” Calise at ¶ 30, citing State v. Barrios, 9th Dist. No. 06CA009065, 2007–Ohio–7025, ¶ 18.Holmes Count y , Case No. 19CA0007 13 “Exclusion is a permissible sanction ‘as long as it would not c ompletely deny the defendant his constitutional right to present a defense’.” Barrios at ¶ 18, quoting State v. Sinkfield, 2d Dist. No. 18663, 2001 WL 1517314, *8 (Nov. 30, 2001). Becau se a trial court's decision to exclude testimony is a discretionary one, w e review a court's decision to exclude evidence under an abuse of discretion standard of re view. Barrios at ¶ 18. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶38} In Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), the Ohio Supreme Court stated, “[a] trial court must inquire into t he circumstances surrounding a discovery rule violation and, when deciding wheth er to impose a sanction, must impose the least severe sanction that is consistent with t he purpose of the rules of discovery.” Id . at paragraph two of the syllabus. The High Court noted, “[t]he philosophy of the Criminal Rules is to remove the element of gamesmanship from a trial.” Id . at *3. (Citation omitted.) The Papadelis Court explained, “[t]he purpose of discovery rules is to prevent surprise and the secreting of evidence favorable to one party. The overall purpose is to produce a fair trial.” Id

. {¶39} In Papadelis , the Supreme Court also sets forth a list of factors to be considered by the trial court prior to issuing a sanction. Tho se factors included: “the extent to which the prosecution will be surprised or prejudiced by the witness' testimony, the impact of witness preclusion on the evidence at trial and t he outcome of the case, whether violation of the discovery rules was willful or in bad faith, and the effectiveness of less severe sanctions.” Id. at *5.Holmes Count y , Case No. 19CA0007 14 {¶40} At trial, during the cross-examination of the Child, defense co unsel sought to introduce text messages, which were either to or from the Ch ild’s phone, for the purpose of refreshing her recollection. The state objected to the introduction of the text message, indicating it had not received such in discovery. Def ense counsel explained she just recently obtained the text messages and did not know h ow the Child would testify. The trial court would not allow defense counsel to use the text messages for any purpose. Defense counsel noted her objection for the record. {¶41} Assuming, arguendo, the trial court erred in excluding the text messages, we find any error to be harmless. Appellant failed to make a p roffer of the nature of text messages. Without such a proffer, this Court cannot find Appell ant was prejudiced by the exclusion of the evidence. {¶42} Appellant’s third assignment of error is overruled. IV {¶43} In his final assignment of error, Appellant maintains the trial court erred in allowing discussion of a computerized voice stress analyzer tes t, and violated his right to due process as a result. Specifically, Appellant argues the tri al court should have precluded defense counsel from questioning Det. Henry about why he did not offer Appellant the opportunity to take a CVSA test. {¶44} We review this assignment of error under a plain error analysis . In State v. Thomas , 152 Ohio St.3d 15, 92 N.E.3d 821, 2017–Ohio–8011, he Ohio Sup reme Court clarified the standard of review for plain error:Holmes Count y , Case No. 19CA0007 15 Crim.R. 52(B) affords appellate courts discretion to correct “[ p]lain errors or defects affecting substantial rights” notwithstanding an accused's failure to meet his obligation to bring those errors to the att ention of the trial court. However, the accused bears the burden to demonstrate pla in error on the record, State v. Quarterman , 140 Ohio St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal rule” that constitutes “an ‘obvious’ defect in the trial procee dings,” State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Even if the error is obvious, it must have affected substantial rights, and “[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.” Id. We recently clarified in State v. Rogers , 143 Ohio St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860, that the accused is “required to demonstrate a reas onable probability that the error resulted in prejudice—the same defer ential standard for reviewing ineffective assistance of counsel claims .” (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez , 542 U.S. 74, 81–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; we have “admonish[ed] courts to notice plain err or ‘with the utmost caution, under exceptional circumstances and only to pre vent a manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759Holmes Count y , Case No. 19CA0007 16
N.E.2d 1240, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Id . at ¶¶ 32–34.

{¶45} During her cross-examination of Det. Henry, defense counsel ask ed the detective if he had offered Appellant an opportunity to take a CVSA or lie detector test to “confirm his confession.” Tr. at 206. Det. Henry responded he would have offered the test if Appellant had not confessed. The detective would not c oncede the test would be a tool to further verify or support Appellant’s confession. De t. Henry explained he does “believe in them” and will only offer the test as a chance to c onduct a second interview. {¶46} We find Appellant opened the door to this line of questioning a nd Appellant has failed to establish the alleged plain error affected the ou tcome of the trial. Det. Henry stated he did not believe in CVSA’s or polygraphs, and utilized them only as a means to a second interview with an accused. The detective’s testimony neither incriminated nor cleared Appellant. Accordingly, we find no error, plain or oth erwise.Holmes Count y , Case No. 19CA0007 17 {¶47} Appellant’s fourth assignment of error is overruled. {¶48} The judgment of the Holmes County Court of Common Pleas is affi rmed.

By: Hoffman, P.J. Wise, John, J. and Delaney, J. concur