[Cite as State v. Olman, 2022-Ohio-2647.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

BELMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

CHARLES OLMAN,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 BE 0034

Criminal Appeal from the

Court of Common Pleas of Belmont County, Ohio

Case No. 21 CR 109

BEFORE:

Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

JUDGMENT:

Affirmed.

Atty. J. Kevin Flanagan, Belmont County Prosecutor, Atty. Daniel P. Fry, Assistant 

Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950 for PlaintiffAppellee and

Atty. Brian A. Smith, 123 South Miller Road, Suite 250, Fairlawn, Ohio 44333 for 

Defendant-Appellant.
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Case No. 21 BE 0034

Dated: June 30, 2022

Robb, J.

{¶1} Appellant, Charles Olman, was convicted of two counts of rape, first-degree 

felonies, after a jury trial. He was sentenced to two consecutive life sentences without 

the possibility of parole and classified as a Tier III sex offender. He raises eight 

assignments of error on appeal. For the following reasons, each of Appellant’s arguments

lacks merit, and the trial court’s decision is affirmed. 

Statement of the Case

{¶2} Appellant was indicted by the grand jury in May of 2021 and charged with 

two counts of rape of a minor less than ten years old in violation of R.C. 2907.02(A)(1)(b) 

and R.C. 2907.02(B). The indictment alleged that the offenses occurred on or between 

January 1, 2018 and October 31, 2020. 

{¶3} The parties exchanged discovery, and in July 2021 the state filed a notice 

of intent to use other acts evidence under Evid.R. 404(B). Defense counsel opposed and 

moved to exclude this evidence via a July 2021 motion in limine, which was overruled. 

{¶4} The case proceeded to jury trial on July 27, 2021. The state introduced the 

testimony of eight witnesses, which revealed the following. 

{¶5} In September of 2020, Belmont County Children Services learned about a 

neglect allegation involving a mother and her two young children. Appellant initially 

contacted the agency complaining that the mother of his child was abusing drugs and not 

caring for her children. Appellant and the woman had been in a romantic relationship, 

lived together for some time with the two young children, but were not married. Appellant 

is the father of the victim’s younger brother, but he is not the victim’s biological father. 

The couple had separated and were no longer living together at the time.

{¶6} The agency caseworker, Jessica Hartley, interviewed the mother and her 

two children. Hartley did not observe any evidence of neglect or drug abuse during this 

first interview, but both children indicated there was physical abuse between their mother 

and Appellant, and their mother raised concerns about possible sexual abuse. 
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{¶7} Thereafter, Hartley scheduled the recorded interview of the older of the two 

young children, a six-year-old girl named T.F. Her interview took place at a local child 

advocacy center, referred to as Harmony House, in October of 2020. T.F. verified that 

she was six years old at the time and in kindergarten. This Harmony House interview did 

not reveal any sexual abuse allegations, and centered on domestic violence allegations. 

(State’s Ex. 2.)

{¶8} Approximately 20 days later, T.F.’s mother contacted the agency indicating 

that T.F. had since made allegations of sexual abuse involving Appellant. Appellant did 

not live with them at the time. 

{¶9} The minor was again interviewed at Harmony House in November of 2020, 

and this time she told the interviewer, Robert Scott Steele, that her mom’s boyfriend, 

whom she referred to as “daddy Chuck,” had sexually abused her. Both of her Harmony 

House interviews were recorded, and the videos were played at trial. (State’s Ex. 4.) 

{¶10} At the beginning of her second interview, T.F. spontaneously states that she 

is going to draw about herself and “what daddy did.” She confirms that the dad she is 

referring to is daddy Chuck. She said: “He was trying to marry me.” “I said no, but he 

still did it.” She described that their pants were down, and he was behind her. She said, 

“when mommy comes, we pulled our pants up.” “Daddy” told her to pull her pants and 

underwear down. After that, she demonstrated how he spit on his genitals, gesturing to 

her front genitals, and then said he put his “butthole” on my “hoo hoo.” (State’s Ex. 4.) 

{¶11} She said her baby brother was there at the time, but he had a blanket or 

sheet over his head. T.F. said that “daddy” “married her” more than one time. They were 

laying down at their old house on Chuck and her mother’s bed. She described it stating, 

“he spitted on his front butthole. He married me on my butt too.” She circled the penis 

on the anatomically correct drawing of an adult male, and said he touched her with it when 

her pants and her underwear were down. She said it “hurt really bad.” She also said, “he 

thinks I’m his girlfriend,” and that it felt wet and “like Kool-Aid.” T.F. told the interviewer 

that her “daddy” told her not to tell because the “CPS lady would take her.” (State’s Ex. 

4.) 

{¶12} The Harmony House forensic interviewer Steele testified that T.F. was six 

years old when he interviewed her. (Tr. 360.) Steele explained that T.F. called a penis 
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Case No. 21 BE 0034

a “butthole” and her vagina a “hoo-hoo” or “hoo-haw.” Steele also detailed that T.F. told 

him and showed him how Appellant would spit on his hand and put it on his penis before 

putting it in her rectum or vagina. (Tr. 350-373.) 

{¶13} Steele testified that T.F. identified Appellant by name several times during 

the interview and that she said he “married her in the front and the back,” which she also 

demonstrated with the drawings. (Tr. 370.) Steele explained on cross-examination that 

when T.F. said “it hurt really bad,” Steele believed she was talking about when Appellant 

inserted his penis in her vagina. (Tr. 374.) 

{¶14} In December of 2020, T.F. was examined by Leslie Doerfler, a specialist 

dealing with minor sex abuse victims. The exam revealed no physical signs of sexual 

abuse or rape. Doerfler testified that T.F. was born in October of 2013 and was seven 

years old at the time of the exam. Doerfler stated that sexual abuse examinations of 

minors are best when conducted within 72 hours after the alleged abuse and before 

healing occurs. (Tr. 398.) After this window of time, she said it is common not to see any

vaginal injury. Doerfler also testified that it is a myth that sex will always result in damage 

to a female’s hymen, explaining that hymens heal very quickly. (Tr. 432.)

{¶15} Dr. Robin Teoli, T.F.’s counselor with a mental health facility, also testified. 

She confirmed that T.F. was seven years old as of the trial date. During one of her 

sessions, T.F. told Teoli that Appellant pulled down her pants and “married her.” (Tr. 

505.) She also explained how T.F. demonstrated how Appellant would spit on his fingers 

and rub it on his privates before “marrying her.” She also recounted T.F. explaining how 

he put his penis in T.F.’s mouth, which she said “tastes nasty.” T.F. revealed more details 

about the abuse allegations with almost every appointment, and she did not retract her 

statements, but elaborated on the encounters. Teoli also said that T.F. told her that 

Appellant did it ten times in her “hoo-hoo,” ten times in her mouth, and 13 times in her 

“butt.” (Tr. 539.) Teoli remembers T.F. stating that he hurt her, but he promised her cake 

if she did not tell. He also threatened to spank her if she did tell. (Tr. 555-556.)

{¶16} T.F. testified during trial via live videoconference. She said “daddy” put his 

privates in her mouth, “butt”, and her “hoo hah” “like ten times” with his pants down. She 

said it was inside of her and “hurt a lot.” She also described Appellant putting his fingers 
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Case No. 21 BE 0034

to his mouth and putting spit on his “butthole,” meaning his penis, before putting it in her. 

(Tr. 559-563.) 

{¶17} During her testimony, T.F. heard someone cough in the courtroom, which 

prompted her to ask to see Appellant so she could show him her “mad face.” She then 

identified him as “daddy Chuck” and began crying. (Tr. 569-570.) 

{¶18} Two state’s witnesses testified under objection that they had been sexually 

abused by Appellant when they were children. The trial court allowed their testimony as 

permissible other acts evidence under Evid.R. 404(B). Both recalled Appellant spitting 

on his hand or fingers and putting it on his penis before assaulting or raping them. The 

jury was instructed not to consider their testimony to prove Appellant’s character but to 

show that he acted in conformity with his past conduct. (Tr. 583 and 688.) 

{¶19} The defense called two witnesses, both worked with T.F. as therapists or 

counselors at her school. Tammy Becker worked with T.F. as a school therapist 

individually and in a group setting. Becker confirmed that she recorded in one of her 

notes that T.F. was in a good mood on September 25, 2020 because her mom got her a 

new phone and gave her a candy bar. Another of Becker’s notes indicates that T.F. said 

her “dad is Chris” in December of 2021. (Tr. 641.) 

{¶20} Beverly Piatt was also called by the defense. Piatt is a mental health 

technician who also worked with T.F. at her school. Piatt confirmed via her notes that 

T.F. had referred to someone named Chris as her dad on November 2, 2020 and that 

T.F. said: “He’s my daddy now.” (Tr. 653.)

{¶21} During her first recorded interview, T.F. stated in part that “Chris is my dad 

now.” Chris lived with her at the time of the first interview because her “other daddy” was 

in jail. (State’s Ex. 2.) Further, T.F.’s caseworker Hartley agreed on cross-examination 

that T.F. had made allegations about other people in April of 2021. T.F. indicated that 

other people would “marry her” too. During Hartley’s testimony, she explained that T.F.’s 

mother’s ex-husband is named Chris, who is referred to as “big Chris,” and he has a son 

also named Chris or “little Chris.” (Tr. 289.) 

{¶22} No further details about these allegations were revealed during trial. No 

one testified that it was this individual referred to as “daddy Chris” or Chris who committed 

these offenses against T.F., and not Appellant. 
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Case No. 21 BE 0034

{¶23} On July 30, 2021, the jury found Appellant guilty of both counts of rape and 

specifically found via interrogatory that the victim was less than ten years old at the time 

of both offenses. Appellant was later sentenced to two consecutive life sentences without 

the possibility of parole and classified as a Tier III sex offender. He timely appealed and 

raises eight assignments of error. 

First Assignment of Error: Manifest Weight of the Evidence

{¶24} Appellant’s first assignment of error contends: 

“Whether the jury lost its way and created a manifest miscarriage of justice in 

convicting Appellant, when the State did not present any conclusive physical evidence in 

support, where the evidence showed that T.F. had been coached or influenced to make 

the allegations against Appellant, and where other evidence in the record showed that 

T.F. was not a credible witness, such as T.F.’s statements regarding sexual acts between 

T.F. and her brother, and from other individuals.”

{¶25} A manifest weight review requires us to review the evidence and to 

determine whether this is an exceptional case in which it is patently apparent that the jury 

lost its way. State v. Thompkins, 78 Ohio St.3d 380, 389, 678 N.E.2d 541 (1997). The 

reversal of a jury’s verdict on manifest weight grounds requires a unanimous concurrence

of all three judges. Id. 

The * * * weight of the evidence addresses the evidence’s effect of inducing 

belief. * * * In other words, a reviewing court asks whose evidence is more 

persuasive—the state's or the defendant’s? * * * [A]lthough there may be 

sufficient evidence to support a judgment, it could nevertheless be against 

the manifest weight of the evidence. * * * ‘When a court of appeals reverses 

a judgment of a trial court on the basis that the verdict is against the weight 

of the evidence, the appellate court sits as a “thirteenth juror” and disagrees 

with the factfinder's resolution of the conflicting testimony.’ * * *. 

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

{¶26} “[T]he 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), paragraph one of the syllabus. “A jury is free to believe all, some, or none of 

the testimony of each witness appearing before it.” State v. Ellis, 8th Dist. Cuyahoga No. 
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Case No. 21 BE 0034

98538, 2013-Ohio-1184, ¶ 18, citing Iler v. Wright, 8th Dist. Cuyahoga No. 80555, 2002-

Ohio-4279, ¶ 25.

{¶27} Appellant was convicted of two counts of rape in violation of R.C. 

2907.02(A)(1)(b): 

(A)(1) No person shall engage in sexual conduct with another who is not 

the spouse of 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.

As relevant here, 

‘[s]exual conduct’ means vaginal intercourse between a male and female; 

anal intercourse * * *; and, without privilege to do so, the insertion, however 

slight, of any part of the body * * * into the vaginal or anal opening of another. 

Penetration, however slight, is sufficient to complete vaginal or anal 

intercourse. 

R.C. 2907.01(A). 

{¶28} Appellant argues the jury lost its way for several reasons. First, he claims 

the lack of physical injuries invalidates T.F.’s allegations, requiring reversal. 

{¶29} R.C. 2907.01(A) does not require physical corroborating medical evidence. 

State v. Hanni, 8th Dist. Cuyahoga No. 91014, 2009-Ohio-139, ¶ 22. Rape convictions 

may be accomplished via the victim’s testimony alone. State v. Rasul, 8th Dist. Cuyahoga 

No. 101625, 2016-Ohio-200, ¶ 8. A rape conviction does not require objective physical 

evidence of injury showing the sexual conduct occurred. See In re Hollobaugh, 7th Dist. 

Mahoning No. 08 MA 22, 2009-Ohio-797, ¶ 21; State v. Kaufman, 187 Ohio App.3d 50, 

2010-Ohio-1536, 931 N.E.2d 143, ¶ 71 (7th Dist.). The fact there is no medical evidence 

of “damage to a victim’s hymen, in light of unequivocal testimony from the victim, does 

not make the evidence insufficient as a matter of law.” State v. Blankenship, 8th Dist. 

Cuyahoga No. 77900, 2001 WL 1617225, *4. 

{¶30} Moreover, Doerfler explained in her testimony that generally injuries to the 

hymen and genitals heal quickly. There was no evidence to the contrary. 
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Case No. 21 BE 0034

{¶31} The defense also argued that the person referred to as “daddy Chris” 

committed these offenses, not him, and that T.F.’s mother bribed her with a candy bar 

and cell phone to blame Appellant. There was evidence that T.F.’s mother had a history 

of drug abuse and that she and Appellant had separated and had made domestic violence 

allegations against one another. Hartley also described T.F.’s mother lying to her about 

rekindling her relationship with Appellant after T.F. made these allegations against him. 

(Tr. 288.) Regardless, the jury evidently discounted these facts and arguments. 

{¶32} Further, T.F. testified and her recorded interviews were played during trial. 

Whether T.F. was telling the truth was for the jury to determine. State v. Petro, 148 Ohio 

St. 473, 501, 76 N.E.2d 355 (1947) (weight to be given evidence and the credibility of the 

witnesses are jury issues). 

{¶33} Appellant argues that T.F.’s developmental delays also support the 

conclusion that she was coached in her testimony. However, as detailed previously, the 

allegations T.F. made during her recorded interviews were consistent with her trial 

testimony and were bolstered by her statements to Dr. Teoli. Teoli also explained that 

T.F. was provided with a bag of dolls during one of her therapy sessions. She described 

how T.F. took the clothes off the girl doll and adult male doll and demonstrated how 

“daddy” put his “butthole in her butt.” Then she showed Teoli how he put his “butthole” in 

her “hoo-hoo.” T.F. then used ten fingers to show Teoli how many times this happened, 

both vaginally and anally. (Tr. 524.) 

{¶34} The references to other men allegedly “marrying” T.F. were not 

substantiated with any other evidence. Hartley testified on cross-examination that T.F. 

made a disclosure about “other people” “marrying her,” but no details were presented, 

and there was no indication that these “other people” committed these offenses against 

T.F., and not Appellant. (Tr. 289, 293-297.) And even assuming these allegations were 

true, if T.F. were actually raped or sexually abused by others, then this fact does not 

necessarily require a finding that Appellant did not rape her as well, consistent with T.F.’s 

testimony. The evidence was before the jury for it to consider. 

{¶35} Regardless of the defense arguments, upon reviewing the evidence as a 

whole, it supports the jury’s conclusion. T.F.’s testimony was consistent with what she 

had told her caseworker, therapist, and SANE nurse, who also testified. Also convincing 
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Case No. 21 BE 0034

was T.F.’s seemingly spontaneous use of the anatomically correct drawings during her 

Harmony House recorded interview to show what Appellant did to her. Her statements 

and conduct during her recorded interviews did not seem rehearsed but impulsive. The 

jury was in the best position to judge the credibility of the witnesses. 

{¶36} As this court cannot disagree with the factfinder's resolution of the evidence 

and testimony, we conclude Appellant’s convictions are not against the manifest weight 

of the evidence. Thus, Appellant’s first assigned error lacks merit and is overruled. 

Second Assignment of Error: Sufficiency of the Evidence

{¶37} Appellant’s second assignment of error asserts: 

“Whether Appellant’s convictions were supported by sufficient evidence, where the 

State did not present evidence as to the date or timing during which the alleged sexual 

acts between Appellant and T.F. took place, or as to T.F.’s age at the time of the alleged 

sexual acts.”

{¶38} Whether the evidence is legally sufficient to sustain a verdict is a question 

of law, which appellate courts review de novo. State v. Thompkins, 78 Ohio St.3d 380, 

386, 678 N.E.2d 541 (1997); In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 

1203, ¶ 3. 

{¶39} On appeal we determine whether the evidence presented, viewed in a light 

most favorable to the prosecution, allows a rational trier of fact to find the essential 

elements of the crime established beyond a reasonable doubt. State v. Dent, 163 Ohio 

St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, reconsideration denied sub nom. State v.

Walker, 160 Ohio St.3d 1517, 2020-Ohio-6946, 159 N.E.3d 1179. 

{¶40} Appellant does not challenge each of the elements necessary for his 

convictions. He only argues his convictions are not warranted based on insufficient 

evidence because the state failed to establish the victim’s age at the time of the offenses 

and the state failed to prove the date of the offenses, even if approximate. Because this 

assignment is limited to these two arguments, our review is equally limited. 

{¶41} As stated, Appellant was charged and convicted of two counts of rape of a 

minor less than ten years old in violation of R.C. 2907.02(A)(1)(b) and R.C. 2907.02(B). 

Thus, the state was required to establish when the rapes occurred to establish the victim’s 

age at the time of the offense in order to establish rape in violation of R.C. 
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Case No. 21 BE 0034

2907.02(A)(1)(b). The date of the offenses, actual or approximate, is not an element of 

the charged crimes. 

{¶42} The jury found T.F. was under the age of ten at the time of the offenses via 

its jury interrogatory. Upon reviewing the record, we agree the state presented sufficient 

evidence showing Appellant raped T.F. twice before her tenth birthday. 

{¶43} During her first recorded interview which was played during trial, T.F. 

confirms she is six years old and attending kindergarten. T.F.’s second recorded 

Harmony House interview occurred on November 3, 2020, and it was played at trial. She 

revealed the rape allegations during her second interview. The Harmony House forensic 

interviewer Steele also testified that T.F. was six years old at the time of her October 9, 

2020 interview. (Tr. 330.) 

{¶44} Further, T.F.’s therapist Teoli confirmed that T.F. was seven at the time of 

trial. Teoli also confirmed that T.F. was born in October of 2013. 

{¶45} T.F. underwent a physical examination in December of 2020 when she was 

seven years old. Doerfler testified the offenses had occurred “several months” before 

T.F.’s exam. (Tr. 418.) There is no evidence to the contrary. 

{¶46} Contrary to Appellant’s argument, the state sufficiently established that T.F. 

was under the age of ten at the time of the offenses. She disclosed the offenses during 

her November 2020 recorded interview when she was seven, which she reaffirmed via 

her live testimony during trial. 

{¶47} The jury trial was held in July of 2021, and several witnesses confirmed that 

T.F. was seven years old at the time of trial. There was no evidence disputing her age at 

the time of the offenses or at trial. 

{¶48} Upon viewing the evidence in a light most favorable to the prosecution, a 

rational trier of fact could have found the age of the victim as under ten years old at the 

time of the offenses established beyond a reasonable doubt. Thus, this aspect of 

Appellant’s second assignment of error lacks merit. 

{¶49} Appellant’s second argument here claims that because the state failed to 

establish when the crimes occurred, reversal is required. We disagree. 

{¶50} Again, the state was required to establish the age of the victim at the time 

of the offenses as under ten. The date the offenses occurred is not mentioned in the 
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Case No. 21 BE 0034

statute and is not an element of R.C. 2907.02(A)(1)(b) or R.C. 2907.02(B). In fact, the 

only case that Appellant advances in support of his argument, State v. Simmons, 189 

Ohio App.3d 532, 2010-Ohio-3412, 939 N.E.2d 869 (8th Dist.), held in part that it is well 

settled that “[t]he precise date and time of an offense are generally not elements of an 

offense.” Id. at ¶ 23. 

{¶51} In Simmons, a few of the defendant’s convictions were reversed because 

they were not supported by sufficient evidence corresponding with the dates of the 

charged offenses in the indictment. However, Simmons was indicted and charged with 

54 different counts corresponding with several different time periods that were identified 

in the indictment. Simmons was convicted of 17 counts. Id. at ¶ 7. On appeal, he argued 

there was insufficient evidence to convict him of four particular counts, including 

aggravated robbery, aggravated burglary, and kidnapping, which allegedly occurred in 

March of 2008. The court of appeals agreed and found there was no evidence showing 

Simmons committed any criminal offense during this period. It relied in part on the victim’s 

testimony that Appellant had not stayed with him in March. Id. at ¶ 22. Thus, it reversed 

these four convictions, finding insufficient evidence as a matter of law. 

{¶52} Appellant’s reliance on Simmons is misplaced. Unlike Simmons, who was 

facing 54 charges spanning several time periods, Appellant was charged and convicted 

of two counts of rape during one time period. This is not a case in which Appellant was 

charged with twenty counts of rape such that the state had to prove the details of the 

offenses and when they happened to secure multiple convictions of the same offenses. 

Furthermore, there was no evidence here that Appellant did not have access to T.F. 

during the timeframe alleged in the indictment. Thus, Simmons is distinguishable, and 

this aspect of Appellant’s second assignment of error lacks merit. 

{¶53} Consequently, we find that the evidence presented by the state was 

sufficient as a matter of law to support the jury’s verdict convicting Appellant of two counts 

of rape in violation of R.C. 2907.02(A)(1)(b) and R.C. 2907.02(B) with the victim being 

less than ten years old at the time. Accordingly, Appellant’s second assignment of error 

lacks merit in its entirety. 

Third Assignment of Error: Expert Stipulation

{¶54} Appellant’s third assigned error asserts: 
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“Whether the trial court erred in allowing testimony from Leslie Doerfler, the state’s 

witness, as to her educational background and qualifications, where the defense had 

already offered a stipulation as to her qualifications as an expert, the trial court accepted 

the stipulation on the record, and the witness’s additional testimony was prejudicial to 

Appellant due to a dispute as to the scientific validity of the defense’s argument.” 

{¶55} Appellant argues because he stipulated to Leslie Doerfler as an expert, the 

trial court committed plain error upon permitting her to detail her credentials in violation 

of the stipulation. Appellant is not challenging her credentials or their relevance but the 

fact that she recounted them to the jury aiding in her credibility in “violation of the 

stipulation.” Appellant argues this presentation of cumulative evidence prolonged the 

proceedings, caused juror confusion, and improperly influenced their decision. For the 

following reasons, we find no error, let alone plain error. 

{¶56} A stipulation is defined in part as, “[a] voluntary agreement between 

opposing parties concerning some relevant point * * *.” STIPULATION, Black's Law 

Dictionary (11th ed. 2019). The parties did not stipulate or agree that the state would not 

elicit any testimony about Doerfler’s qualifications. Instead, the defense agreed to 

stipulate that she was qualified as an expert, evidently to prevent the jury from learning 

about the extent of her qualifications in an effort to reduce the impact of her testimony. 

{¶57} Further, Appellant points to no law holding a stipulation that a witness is 

qualified as an expert precludes the introduction of any testimony about that witness’s

relevant credentials. Instead, the stipulation means the party introducing the witness as 

an expert is relieved from having the witness recite all of her qualifications before she is 

accepted as an expert—it does not mean one is prohibited from eliciting testimony 

establishing her education and special expertise. See State v. Hatton, 5th Dist. Delaware 

No. 10CAA010012, 2010-Ohio-5419, ¶ 28 (noting that a stipulation “relieved the state 

from presenting [the expert’s] full credentials”). 

{¶58} As alleged, at the beginning of Doerfler’s testimony on direct examination, 

defense counsel stated he would stipulate that she is an expert qualified to testify. In 

response, the prosecutor immediately asked the court to permit him to obtain testimony 

from her showing her credentials and education in light of the specialized nature of her 

testimony and qualifications. 
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{¶59} Doerfler then explained her specialized training and work as a sexual 

assault nursing examiner or “SANE” nurse, explaining that she is one of only 25 certified 

pediatric SANE nurses in Ohio, which covers birth to adolescence; one of only 74 certified 

adolescent SANE nurses in the state; and a SANE nursing instructor. Doerfler was not 

asked about her undergraduate degree, work history, or other less pertinent experience. 

{¶60} The defense opening statement confirms that part of counsel’s argument 

was that there was no physical evidence supporting the victim’s allegations. The defense 

counsel instead pointed out that T.F.’s physical exam showed she had an intact hymen, 

no scarring, and no damage found during her physical exam despite being allegedly 

anally and vaginally raped by an adult male ten times. Defense counsel also stressed in 

his opening statement that the minor likewise did not have any anal tears, stating that this 

was “impossible” if the allegations were true. (Tr. 247.)

{¶61} Contrary to this argument, however, Doerfler testified about how quickly 

vaginal injuries heal and that she does not typically see physical damage or injury 

depicting abuse in most cases involving young children when she conducts the SANE 

exam. (Tr. 427.) There was no competing evidence on this topic. 

{¶62} Notwithstanding, defense counsel attempted to discredit Doerfler on crossexamination, eliciting testimony establishing that she tends to testify on behalf of the state, 

and not defendants. 

{¶63} Moreover, Appellant’s argument overlooks that during trial the prosecutor 

requested and was granted permission to highlight Doerflor’s credentials despite the 

defense stipulation. Knowing a witness’s credentials aids in the weight to give that 

particular person’s testimony. This does not create confusion but lends clarity. See 3 

Crim. Prac. Manual, Qualifying, challenging the expert—Stipulating to credentials, 

Section 86:8 (2021). While an “expert witness is not required to be the best witness on 

the subject. * * * The test is whether a particular witness offered as an expert will aid the 

trier of fact in the search for the truth.” Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 

155, 159, 10 O.O.3d 332, 383 N.E.2d 564 (1978). The result Appellant urges us to adopt 

does not aid the trier of fact in the search for the truth. 

{¶64} Regardless of the defense stipulation as to her qualifications as an expert, 

the court did not err upon allowing her to detail her most compelling qualifications to 
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establish the weight to be given to her testimony. Accordingly, this argument lacks merit 

and is overruled. 

Fourth Assignment of Error: Ineffective Assistance of Trial Counsel

{¶65} Appellant’s fourth assignment of error claims: 

“Whether the failure of Appellant’s trial counsel to object to the additional testimony 

from Leslie Doerfler following the trial court’s acceptance of Appellant’s stipulation to 

Doerfler as an expert witness, as to Doerfler’s education, licensing, and other 

qualifications to be an expert witness, constituted ineffective assistance of counsel, where 

Doerfler’s testimony was critical to the jury’s determination of whether Appellant could 

have engaged in ‘sexual conduct’ with T.F., and thus whether the State met its burden as 

to one of the essential elements of the charge of rape.” 

{¶66} Appellant contends he was denied the effective assistance of trial counsel 

based on his attorney’s failure to object to the state’s elicitation of Doerfler’s qualifications 

as outlined in assigned error number three. 

{¶67} To establish a claim of ineffective assistance of counsel, a defendant must 

show both that his trial counsel’s performance was deficient in that it fell below an 

objective standard of care and that the deficient performance resulted in prejudice. State

v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). 

{¶68} Licensed attorneys in Ohio are presumed competent. State v. Calhoun, 86 

Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel's performance, 

appellate review is highly deferential because of the strong presumption 

that counsel’s conduct fell within the wide range of reasonable professional assistance. 

Bradley at 142-143, citing Strickland at 689. In fact, appellate courts are prohibited from 

second-guessing trial counsel’s strategic decisions. State v. Carter, 72 Ohio St.3d 545, 

558, 651 N.E.2d 965 (1995). 

{¶69} Here, Appellant cannot prove either prong, and as such, this assigned error 

lacks merit. 

{¶70} First, as detailed in Appellant’s third assignment of error, we find no error in 

his counsel’s failure to object. In fact, although Appellant’s trial counsel sought to use the 

stipulation to limit the jury’s knowledge of Doerfler’s expertise in her field, the prosecutor 
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Case No. 21 BE 0034

sought the trial court’s permission to review her credentials anyway. Once permission 

was granted, any subsequent objection to the admission of Doerfler’s experience and 

credentials would have likely been overruled as already addressed. Moreover, as pointed 

out, the extent of Doerfler’s training likely aided the trier of fact. 

{¶71} Thus, Appellant’s trial counsel did not err in failing to object, and thus, 

Appellant’s argument fails to satisfy the first prong. Without error, Appellant cannot show 

resulting prejudice. 

{¶72} Because Appellant fails to establish that his trial counsel erred, we do not 

need to address the second prong of the test, i.e., whether his lawyer's deficient 

performance was so serious that there is a reasonable probability the outcome of the 

proceeding would have been different. Carter at 558. Accordingly, this assignment of 

error is overruled. 

Fifth Assignment of Error: Right to Confront Out of State Witness

{¶73} Appellant’s fifth assignment of error contends: 

“Whether the trial court abused its discretion in granting the State’s motion to take 

Cody Porter’s testimony by video deposition, where the state failed to show that Porter 

was ‘unavailable’ as defined under Evid.R. 804 and Crim.R. 15, and where the State failed 

to show that it had used ‘reasonable means’ to secure Porter’s appearance in court to 

testify.” 

{¶74} Appellant contends that his constitutional right to confront the witness was 

violated based on the court’s decision to allow Porter to testify remotely via 

videoconference technology. Appellant also argues that the court erred in allowing the 

state to present Porter’s testimony by way of pre-recorded deposition. Because Porter 

did not testify by way of deposition, we disregard this aspect of his argument. 

{¶75} The state moved to allow Porter to testify either via deposition or 

videoconference. The defense objected to Porter’s out of court testimony, arguing the 

state had almost a month to secure his in-person testimony and Appellant was being 

denied his right to fully confront this witness. The state countered that it did not have 

enough time to secure Porter’s transport from Minnesota. Additionally, the state 

emphasized the prison Porter was incarcerated in was in the middle of a Covid-19 

outbreak. The court overruled the state’s request to allow his testimony to be pre-
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Case No. 21 BE 0034

recorded and out of the presence of the jury by way of deposition, but allowed Porter to 

testify by live videoconference or Zoom. (Tr. 686-7.) 

{¶76} Appellant first contends the trial court violated Crim.R. 15 and Evid.R. 804 

by not having Porter testify in person, arguing that Porter was not “unavailable” to testify. 

Evid.R. 804(B)(1) addresses hearsay and states that “former testimony” is an exception 

to the rule against hearsay “if the declarant is unavailable as a witness” to testify. And 

Crim.R. 15(F) addresses the use of deposition testimony during a criminal trial and 

permits its use if the witness is unavailable. Appellant also relies on this Court’s decision 

in State v. Oliver, 7th Dist. Mahoning No. 07 MA 169, 2008-Ohio-6371, which analyzed 

whether a deposition was properly used and admitted during Oliver’s trial. Id. Here, 

Appellant claims the state did not take reasonable efforts to secure Porter’s testimony in 

person, and as such, he was not “unavailable” as that term is defined in Evid.R. 804(A). 

{¶77} As indicated, the state did not present Porter’s testimony at trial via 

deposition and did not present any former testimony. Instead, the trial court allowed the 

state to introduce Porter’s testimony via live remote videoconference technology. Thus, 

Appellant’s argument invoking Oliver, Crim.R. 15, and Evid.R. 804, which deal with the 

use of deposition testimony and former testimony, is not controlling. Even assuming 

arguendo that these authorities apply, this Court in Oliver upheld the use of a witness’ 

deposition testimony despite conflicting evidence as to her availability at the time of trial. 

Id. at 43-45. Further, the state explained here that it did not have sufficient time to secure 

Porter’s transport from the Minnesota facility and that bringing this witness to Ohio to 

testify was not feasible because the facility he was incarcerated in was experiencing a 

surge of Covid-19 cases. Thus, assuming these authorities governing the use of 

deposition testimony at trial are applicable, Porter was sufficiently “unavailable” in light of 

his incarceration in a different state that was undergoing a surge of infections during a 

worldwide pandemic. Id. 

{¶78} The second aspect of this assigned error argues that Appellant’s federal 

and Ohio Constitutional rights to confront Porter were violated by permitting Porter to 

testify remotely instead of in person. We review confrontation clause arguments de novo 

and without deference to the trial court’s decision. State v. Toney, 7th Dist. Mahoning 

No. 14 MA 0083, 2016-Ohio-3296, ¶ 45. 
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Case No. 21 BE 0034

{¶79} The overriding purpose of the confrontation clause is to afford the accused 

the opportunity to confront and cross-examine the witnesses who testify against him to 

ensure and test the reliability of the testimony. State v. Self, 56 Ohio St.3d 73, 76, 564 

N.E.2d 446 (1990).

{¶80} The Sixth Amendment to the United States Constitution states in part: “In 

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the 

witnesses against him * * *.” U.S. Constitution, Amendment VI. 

{¶81} The Ohio Constitution states in pertinent part: “In any trial, in any court, the 

party accused shall be allowed * * * to meet the witnesses face to face * * *.” Ohio 

Constitution, Article I, Section 10. Notwithstanding the different language employed in 

each confrontation clause, the Ohio Supreme Court has explicitly held that “Section 10, 

Article I provides no greater right of confrontation than the Sixth Amendment.” 

https://1.next.westlaw.com/Link/RelatedInformation/Flag?documentGuid=I638a4e1ed45

411d98ac8f235252e36df&transitionType=InlineKeyCiteFlags&originationContext=docH

eaderFlag&Rank=1&ppcid=251066e99e3148d38186d231232ad7d0&contextData=(sc.

Recommended)Self, supra, at 79. 

{¶82} “Although face-to-face confrontation forms ‘the core of the values furthered 

by the Confrontation Clause,’ * * * it is not the sine qua non of the confrontation right.” 

Maryland v. Craig, 497 U.S. 836, 847, 110 S.Ct. 3157 (1990). The preference of face-toface testimony, * * * “‘must occasionally give way to considerations of public policy and 

the necessities of the case * * *.’” Id. quoting Mattox v. United States, 156 U.S. 237, 243, 

15 S.Ct. 337 (1895). And any exceptions must be narrowly drawn and “physical 

confrontation may constitutionally be denied where the denial is necessary to further an 

important public policy and ‘the reliability of the testimony is otherwise assured.’” 

https://1.next.westlaw.com/Link/RelatedInformation/Flag?documentGuid=I638a4e1ed45

411d98ac8f235252e36df&transitionType=InlineKeyCiteFlags&originationContext=docH

eaderFlag&Rank=1&ppcid=251066e99e3148d38186d231232ad7d0&contextData=(sc.

Recommended)Self, 56 Ohio St.3d at 77, quoting 

https://1.next.westlaw.com/Link/RelatedInformation/Flag?documentGuid=I638a4e1ed45

411d98ac8f235252e36df&transitionType=InlineKeyCiteFlags&originationContext=docH
– 18 –

Case No. 21 BE 0034

eaderFlag&Rank=1&ppcid=251066e99e3148d38186d231232ad7d0&contextData=(sc.

Recommended)Craig, 497 U.S. at 850. 

{¶83} The Ohio Supreme Court in Self found the closed-circuit television and 

videotape recording technologies by which the victim testified there, were sufficient and 

allowed the “defendant to exercise the right of cross-examination and to observe the 

proceedings against him with the same particularity as if he and the witness were in the 

same room.” Id. at 79. Since the decision in Self, other Ohio courts have also authorized 

the presentation of testimony via remote videoconferencing technologies, such as Skype 

and Zoom, in limited circumstances. See State v. Banks, 1st Dist. Hamilton No. C200395, 2021-Ohio-4330; State v. Castonguay, 2nd Dist. Darke No. 2021-CA-2, 2021-

Ohio-3116. 

{¶84} To determine whether an alternative to physical face-to-face confrontation

is warranted, several Ohio courts have employed a two-prong test derived from Craig, 

supra., Banks, supra, ¶ 22; State v. Howard, 2020-Ohio-3819, 156 N.E.3d 433, ¶ 53 (2d

Dist.); Castonguay, supra, at ¶ 35. When deciding whether an exception to the

confrontation clause is warranted, a court must first consider whether the procedure is

“justified, on a case-specific finding, based on important state interests, public policies, or

necessities of the case and[,] * * * [second ensure whether the procedure] satisf[ies] the

other three elements of confrontation–oath, cross-examination, and observation of the

witness’ demeanor.” Banks, supra, at ¶ 22, quoting Howard, supra. 

{¶85} In Howard, the Second District agreed with the trial court’s decision to allow

one of the victims to testify via live remote teleconferencing. There, the witness had

suffered a gunshot wound leaving him paralyzed, which made travel from his home in

Nevada to Ohio very difficult, and it was also against the advice of his doctors. Id. at ¶

53-57. Moreover, the appellate court agreed that the reliability of his testimony was

ensured, noting that the audio and visual aspects were both of good quality and that the

witness was under oath and subject to cross-examination. Id. at ¶ 60-61. Accord State

v. Castonguay, 2nd Dist. Darke No. 2021-CA-2, 2021-Ohio-3116, ¶ 40 (finding no 

violation of constitutional right to confront witnesses by use of remote trial testimony); 

State v. Johnson, 195 Ohio App.3d 59, 2011-Ohio-3143, 958 N.E.2d 977, ¶ 58-67 (1st 

Dist.) (finding two-way closed circuit television was reliable and witnesses testified under 
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Case No. 21 BE 0034

oath, were subject to live cross-examination, and were visible in the courtroom during 

their testimony); State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 

22 (finding no confrontational clause violation by use of live video link for a key 

prosecution witness to testify from Belgium). 

{¶86} In Banks, supra, the First District affirmed the use of a witness’ remote

testimony where the witness did not receive his subpoena for trial but otherwise was 

available to attend. The court rejected the witness’ reasons as inadequate to excuse his 

in-person testimony but nevertheless found no constitutional violation because the trial 

court was in a county on Covid-19 “red alert level three” at the time during a pandemic 

and was directed via administrative order to employ technology and remote testimony 

when feasible. Id. at ¶ 23-25.

{¶87} Upon applying the first prong of the test here, Porter was incarcerated in 

Minnesota during a pandemic, and at the time, the facility was experiencing a surge in 

Covid-19 cases of the then new Delta variant. Preventing the infection of the judge, court 

staff, jury, and parties is a significant public policy reason warranting the remote testimony 

of Porter. An out of state witness from a prison where cases of a new variant were 

increasing is a significant consideration that necessarily warrants invoking an exception 

to the physical aspect of the confrontation clause, especially in light of the advanced live 

two-way technology available when this case was tried. This conclusion is true regardless 

of whether or not the state erred by failing to timely secure his transport. 

{¶88} Although remote videoconference testimony is not preferable over inperson testimony, here, it was limited to one witness and served an important policy 

reason. Consistent with this conclusion, the Ohio Supreme Court issued administrative 

orders in response to Covid-19, encouraging the use of technology to conduct trials and 

proceedings remotely. 07/31/2020 Administrative Actions, 159 Ohio St.3d 1461, 2020-

Ohio-3861, 150 N.E.3d 107; see also United States v. Smith, 6th Cir. No. 21-5432, 2021 

WL 5567267, *2 (Nov. 29, 2021) (trial court has inherent authority to employ reasonable 

and necessary safety measures during a public health emergency). 

{¶89} As for the second prong of the test, the other three elements of confrontation 

were satisfied here as well, i.e., oath, cross-examination, and observation of the witness’
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Case No. 21 BE 0034

demeanor. It is undisputed Porter gave his testimony under oath and Appellant’s counsel 

had the opportunity to cross-examine him. 

{¶90} As for the third confrontation element, Appellant and his counsel were able 

to observe Porter’s demeanor during his testimony. In making this argument, Appellant’s 

brief indicates that he could not see Porter during his testimony. However, the state 

specifies in its brief that Appellant could see Porter during his remote testimony. 

Thereafter, Appellant’s reply brief does not oppose this statement or challenge it with 

reference to the record. 

{¶91} The prosecutor also made the following statement during trial: 

[T]he record should reflect that the witness will be able to see - - the way 

that the court administrator has the camera focused will be able to see the 

defendant, defense counsel and the questioner. * * * So therefore, the 

ability to confront the witness against him is going to be there, and the 

defendant will not be prejudiced * * *. 

(Tr. 687.) Immediately thereafter, defense counsel was offered an opportunity to respond 

and did not indicate that Appellant could not see the witness. Neither defense counsel 

nor Appellant indicated on the record that Appellant could not see Porter. (Tr. 687.) 

Moreover, Porter was asked to identify Appellant during his testimony via 

videoconference; he did so and described where Appellant was seated. (Tr. 692.) 

{¶92} A similar argument was raised in Howard, supra, which the Second District 

rejected, explaining: “neither Howard nor his attorney voiced any concern during the trial 

regarding Howard's ability to see or hear that testimony. We can find no error where 

nothing in the record supports an inference that Howard actually experienced difficulty 

seeing or hearing Coleman's testimony.” Id. at ¶ 62. 

{¶93} Like Howard, Appellant’s contention that he could not see Porter during his 

testimony is not established with reference to the record nor could we find evidence 

supporting this allegation. Appellant has the burden of directing this court’s attention to 

record evidence in support of his claim and fails to do so here. Thus, we disregard it. 

App.R. 16(A)(3) (“The appellant shall include in its brief * * * reference to the place in the 

record where each error is reflected.”); In re Jones, 9th Dist. Summit No. 20306, 2001 WL 

458682, *5 (The burden of demonstrating error is on the appellant); App.R. 12(A)(2). 
– 21 –

Case No. 21 BE 0034

{¶94} Consequently, these additional safeguards were satisfied, Porter’s 

testimony was sufficiently reliable, and the second prong of the test is satisfied. Maryland

v. Craig, 497 U.S. 836, 847, 110 S.Ct. 3157 (1990). Thus, Appellant’s confrontational 

rights were not violated, and this assignment of error lacks merit. 

{¶95} Last, assuming for the sake of argument that Appellant’s right to confront 

Porter was violated, it is well settled the denial of face-to-face confrontation is not a 

structural error. Thus, it is subject to harmless-error analysis. Coy v. Iowa, 487 U.S. 

1012, 1021, 108 S.Ct. 2798, (1988); Reiner v. Woods, 955 F.3d 549, 555 (6th Cir. 2020). 

Accordingly, we review the trial court's decision to allow Porter to testify remotely only for 

harmless error. Id.; United States v. Smith, supra, at *3. An error does not require 

reversal and is harmless if the state can show “beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.” Chapman v. California, 386

U.S. 18, 24, 87 S.Ct. 824 (1967). 

{¶96} Porter’s testimony, although relevant to show Appellant’s identity and 

helpful in overcoming the defense’s argument, bolstered the fact Appellant was the 

perpetrator of these acts against T.F. Porter’s testimony did not provide evidence 

establishing the elements of the charged offenses. There is nothing suggesting the jury’s 

verdict may have been different if Porter had testified in person during trial, and as such, 

this court cannot find that Porter’s remote testimony unfairly prejudiced Appellant. See

State v. Banks, 1st Dist. Hamilton No. C-200395, 2021-Ohio-4330, ¶ 26 (finding no error 

but if there were error, it was harmless). Thus, this court concludes the trial court's alleged 

error, to the extent it was an error at all, was also harmless. Id.; State v. Castonguay, 

2nd Dist. Darke No. 2021-CA-2, 2021-Ohio-3116, ¶ 41 (even assuming error, remote 

testimony by three witnesses was harmless). 

{¶97} Accordingly, Appellant’s fifth assignment of error lacks merit in its entirety 

and is overruled. 

Sixth Assigned Error: Other Acts Evidence

{¶98} Appellant’s sixth assignment of error asserts: 

“Whether the trial court’s decision to allow ‘other acts’ testimony from two of the 

state’s witnesses, Adrienne Nelson and Cody Porter, was an abuse of discretion, where 
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Case No. 21 BE 0034

the nature of the testimony was highly prejudicial to Appellant, and where the prejudice 

to Appellant outweighed the probative value of the evidence, pursuant to Evid.R. 403(B).” 

{¶99} The state filed a notice of intent to use other acts evidence in advance of 

trial in order to show Appellant’s modus operandi and his identity. Appellant claims the 

trial court abused its discretion by admitting the “other acts” testimony of witnesses 

Adrienne Nelson and Cody Porter. He claims their testimony was unfairly prejudicial and 

cumulative evidence, which was not warranted because the minor victim had already 

testified in advance of these witnesses, and she already identified Appellant. 

{¶100} Trial courts have broad discretion to allow other-acts evidence that is 

admissible under Evid.R. 404(B). State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 

172 N.E.3d 841, cert. denied, 142 S.Ct. 147; State v. Williams, 134 Ohio St.3d 521, 2012-

Ohio-5695, 983 N.E.2d 1278, ¶ 17. Consequently, we review these decisions for an 

abuse of discretion. An abuse of discretion reflects that the trial court’s attitude is 

unreasonable, arbitrary, or unconscionable. AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 59 (1990). 

{¶101} When considering other acts evidence, trial courts should make three 

determinations. First, it should determine if the evidence is relevant and second, whether 

the evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). 

Finally, the court must decide whether the probative value of the evidence is substantially 

outweighed by the danger of unfair prejudice. Williams, supra, at ¶ 20; Evid.R. 403(B). 

{¶102} “To be admissible to prove identity through a 

certain modus operandi, other-acts evidence must be related to and share common 

features with the crime in question.” State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 

616 (1994). Modus operandi evidence is relevant to prove identity if the evidence of the 

defendant’s other crimes entails the same peculiar or distinctive method of doing 

something that it tends to identify the defendant as the perpetrator of the crime at issue. 

State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 35-37. 

{¶103} The trial court instructed the jury before both Porter and Nelson’s 

testimony that their testimony was not to be considered to establish that Appellant acted 

in conformity with his prior conduct. 
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Case No. 21 BE 0034

{¶104} Nelson testified that when she was about six years old, she lived in the 

same apartment building as Appellant and was a friend of his children. On one occasion, 

she recalls visiting their apartment, but Appellant’s children were sleeping. Appellant 

sexually assaulted her, and she remembers him spitting saliva into his hand and putting 

it on his penis. (Tr. 584-589.)

{¶105} Porter testified that Appellant is his biological father and that Porter lived 

with him until Appellant raped him when Porter was still a child. Porter recalls Appellant 

spitting on his hand and then putting it on his penis before committing the offense. Porter 

also revealed that, at the time of his testimony, he was incarcerated in a Minnesota 

correctional facility for committing a sexual felony against an 11-year-old girl. (Tr. 687-

702.)

{¶106} Here, the court correctly found that the other acts evidence consisting of 

Nelson’s and Porter’s testimony about the way Appellant spit on his hand before sexually 

abusing them was relevant and admissible to show Appellant’s identity, one of several 

permissible grounds set forth in Evid.R. 404(B). Their stories contained common features 

with the crimes in question. 

{¶107} As for whether the probative value of the evidence is substantially 

outweighed by the danger of unfair prejudice, we cannot find that the trial court abused 

its discretion. The probative value of Nelson’s and Porter’s testimony was significant in 

this case because part of the defense theory was T.F. was actually sexually abused by 

another individual, referred to as “daddy Chris,” and not Appellant. Their testimony was 

also important because the victim’s credibility was subject to attack in light of the fact that 

she was only seven years old; had learning and/or developmental delays; and was facing 

the additional defense argument that her mother was bribing her in order to get back at 

Appellant based on their contentious history with one another. 

{¶108} Moreover, T.F.’s identification of Appellant during trial seemed wholly 

unplanned. As stated, the victim testified in another room and asked to see Appellant 

through the monitor only after hearing him cough. Only then did the prosecution ask T.F. 

to identify Appellant. (Tr. 569.)

{¶109} While undoubtedly damaging, the purpose of Nelson’s and Porter’s 

testimony was designed to rebut the defense attempts to undermine T.F.’s credibility and 
– 24 –

Case No. 21 BE 0034

to solidify the identity of Appellant as the perpetrator based on his modus operandi. Thus, 

we cannot conclude that the trial court’s decision in allowing this testimony was arbitrary 

or capricious and that the prejudicial effect of this evidence substantially outweighed the 

probative value of the testimony such that exclusion was required under Evid.R. 403(A). 

{¶110} Accordingly, the trial court did not abuse its discretion, and Appellant’s 

sixth assigned error lacks merit. 

Seventh Assignment of Error: Lesser Included Offenses

{¶111} Appellant’s seventh assignment of error argues: 

“Whether the trial court’s decision not to allow a jury instruction on the lesser 

included offenses of Attempted Rape and Gross Sexual Imposition was an abuse of 

discretion, where the evidence did not conclusively show the nature of the alleged sexual 

acts between T.F. and Appellant, where the offenses were lesser included offenses of the 

charge offense of Rape, and where Appellant was prejudiced by the trial court’s decision, 

since the evidence would have allowed the jury to reach a guilty verdict on either of the 

two lesser included offenses.”

{¶112} Appellant argues the trial court abused its discretion by not instructing the 

jury on the lesser included offenses of attempted rape and gross sexual imposition. We 

disagree. 

{¶113} Jury instructions are generally left to the discretion of the trial court, and 

thus, we apply the abuse of discretion standard when reviewing a decision not to instruct 

the jury in a certain manner. State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 

(1989); State v. Cain, 10th Dist. Franklin No. 06AP-1252, 2007-Ohio-6181, ¶ 7. 

{¶114} At trial, defense counsel asked for jury instructions for attempted rape and 

gross sexual imposition. The trial court overruled the request explaining that it did not 

believe there was evidence to substantiate the lesser included offense instructions. (Tr. 

714.) 

{¶115} Gross sexual imposition is a lesser-included offense of rape. State v.

Johnson, 36 Ohio St.3d 224, 522 N.E.2d 1082 (1988), paragraph one of the syllabus. 

Accord State v. Gale, 10th Dist. Franklin No. 05AP-708, 2006-Ohio-1523, ¶ 14 

(“Gross sexual imposition is a lesser-included offense of rape when based on the same 

conduct: its elements are identical to rape except that the type of sexual activity involved
– 25 –

Case No. 21 BE 0034

in gross sexual imposition is ‘sexual contact,’ while ‘sexual conduct’ is necessary for a 

rape conviction.”). 

{¶116} Attempted rape is also a lesser included offense of rape. State v.

Williams, 74 Ohio St.3d 569, 578, 660 N.E.2d 724 (1996). Ohio’s general attempt statute 

states, “[n]o person, purposely or knowingly, * * * shall engage in conduct that, if 

successful, would constitute or result in the offense.” R.C. 2923.02(A). 

{¶117} However, just because an offense is a lesser included one does not entitle 

a defendant to an instruction. State v. Daniel, 8th Dist. Cuyahoga No. 103258, 2016-

Ohio-5231, 57 N.E.3d 1203, ¶ 32. The Ohio Supreme Court set forth a test for when the 

trial court is required to give the jury an instruction on a lesser-included offense: “[i]f the 

trier of fact could reasonably find against the state and for the accused upon one or more 

of the elements of the crime charged and for the state on the remaining elements, which 

by themselves would sustain a conviction on a lesser-included offense, then a charge on 

the lesser-included offense is required.” State v. Wine, 140 Ohio St.3d 409, 2014-Ohio3948, 18 N.E.3d 1207, ¶ 20, quoting State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336 

(1977). “Conversely, if the jury could not reasonably find against the state on an element 

of the crime, then a charge on a lesser-included offense is not only not required, but is 

also improper.” Id. 

{¶118} Here, the state’s case was narrowly focused, and it chose to prosecute 

solely for the offenses of rape. It charged Appellant with two counts of rape during the 

time period alleged, and the state had the burden to prove each of the elements beyond 

a reasonable doubt. 

{¶119} Appellant argues the lesser offense instructions were warranted since the 

victim’s terms used in describing the offenses created confusion about what actually 

occurred. As previously detailed, T.F. used the word “marrying” or “marry” to describe 

what Appellant had done, and she referred to her vagina as her “hoo-hoo” and “hoo-haw.” 

She also called a penis a “butthole.” Without explanation, these terms do create 

confusion. However, the state fully elicited testimony from T.F., as well as Teoli and 

Steele, confirming what T.F. meant when she used these terms. And T.F.’s trial testimony 

plus the testimony of the other state witnesses left no doubt as to what T.F. was alleging 

that Appellant did. 
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Case No. 21 BE 0034

{¶120} Steele described during his testimony what T.F. meant by these terms. 

(Tr. 350-373.) Teoli described at trial that T.F. took the clothes off the girl doll and adult 

male doll and demonstrated how Appellant put his “butthole in her butt.” Then she 

showed Teoli how he put his penis in her “hoo-hoo.” T.F. then used ten fingers to show 

Teoli how many times this happened, both vaginally and anally. (Tr. 524.) 

{¶121} Most damning is T.F.’s trial testimony during which she said that Appellant 

put his genitals in her mouth, rectum, and her “hoo hah” “like ten times” with his pants 

down. She said it was inside of her and “hurt a lot.” She also described Appellant putting 

his fingers to his mouth and putting spit on his “butthole,” meaning his penis, before 

putting it in her. (Tr. 559-563.) 

{¶122} T.F.’s version was consistently repeated during trial and entails Appellant 

putting his “butthole” in her “rectum” and “in” her “hoo-hoo.” The evidence does not depict 

failed attempts and does not show that Appellant had only touched her genitals. Had the 

state not established every element of the charged rape offenses, Appellant would have 

been entitled to acquittal. State v. Johnson, 36 Ohio St.3d 224, 228, 522 N.E.2d 1082 

(1988). Because the lesser-included offense instructions were not required here, this 

assigned error lacks merit. 

Eighth Assignment of Error: Statements Made at Sentencing

{¶123} Appellant’s eighth and final assignment of error asserts: 

“Whether the trial court abused its discretion in allowing Jessica Hartley from 

Belmont County Job and Family Services to testify at Appellant’s sentencing hearing 

regarding her interactions with Appellant, where the statements went beyond the content 

of a victim impact statement and were prejudicial to Appellant.” 

{¶124} Appellant challenges the statements of Jessica Hartley made during his 

sentencing hearing, claiming the trial court abused its discretion in allowing her 

allegations about him. He claims that the admission of her testimony is outside the scope 

of victim impact statements allowed by Marsy’s Law and Crim.R. 32(A)(3) and were 

prejudicial. Appellant seeks resentencing. 

{¶125} Contrary to Appellant’s argument, other individuals are permitted to speak 

at sentencing hearings with the court’s permission. R.C. 2929.19(A) states in part: “At 

the [sentencing] hearing, the offender, the prosecuting attorney, the victim or the victim's 
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Case No. 21 BE 0034

representative * * *, and, with the approval of the court, any other person may present 

information relevant to the imposition of sentence in the case.” (Emphasis added.) R.C. 

2929.19(A).1

{¶126} And, although Crim.R. 32(A) and the Ohio constitutional amendment 

known as Marsy’s Law require the victim of an offense to be afforded an opportunity to 

speak at the sentencing hearing, neither precludes the introduction of statements from 

other individuals. Ohio Constitution, Article I, Section 10a. 

{¶127} As stated, Hartley was T.F.’s family’s intake caseworker at the county’s 

Department of Job and Family Services. At sentencing, the state offered Hartley to speak 

as a “form of a victim impact statement” with the court’s permission, and she conveyed 

her opinion about Appellant’s detrimental effects on T.F. and concerns for T.F.’s troubled 

future dealing with the impact of her sexual abuse. Hartley also recounted her own 

negative experiences with Appellant while working with T.F. and awaiting Appellant’s trial. 

Hartley said that Appellant tried to intimidate her during the court proceedings, and that 

he even sought to have her and her husband murdered before the case went to trial. The 

trial court permitted these statements despite a defense objection. 

{¶128} The court acted consistent with R.C. 2929.19(A) by permitting Hartley to 

speak at the hearing either as the victim’s representative or as another individual with 

relevant information. 

{¶129} However, to the extent Hartley conveyed arguably new material 

information during her statement about Appellant’s plot to have her killed, the court should 

have disregarded this information when fashioning Appellant’s sentence pursuant to R.C. 

2930.14(B), which states: 

The court shall consider a victim's statement made under division (A) of this 

section along with other factors that the court is required to consider in 

imposing sentence or in determining the order of disposition. If the 

statement includes new material facts, the court shall not rely on the new 

1 Another aspect of R.C. 2929.19 was found unconstitutional on unrelated grounds by State v. Oliver, 12th 

Dist. No. CA2020-07-041, 2021-Ohio-2543, 176 N.E.3d 1054, ¶ 54, appeal not allowed, 165 Ohio St.3d 

1504, 2022-Ohio-85, __ N.E.3d. __. 
– 28 –

Case No. 21 BE 0034

material facts unless it continues the sentencing * * * or takes other 

appropriate action to allow the defendant * * * an adequate opportunity to 

respond to the new material facts. 

(Emphasis added.)

{¶130} There is no indication here that the trial court actually relied on Hartley’s 

statement about her negative dealings with Appellant when the court determined his 

sentence. Moreover, a trial court is presumed to have considered only the competent 

and material evidence. See generally State v. Sanders, 92 Ohio St.3d 245, 267, 750 

N.E.2d 90 (2001) (finding no plain error in a capital case because a trial judge is presumed 

to have only considered the competent and material evidence). 

{¶131} Further, Appellant had the opportunity to speak at his sentencing after 

Hartley’s statement, and he did not dispute this allegation. 

{¶132} Finally, Appellant’s two, consecutive life sentences without the possibility 

of parole are more than warranted here based on the evidence in the record, the victim 

impact, and the information detailed in Appellant’s presentence investigation report. 

Thus, even assuming the court erred in allowing Hartley’s statement about Appellant’s 

murder plot, we find no prejudicial error warranting reversal. See State v. Goodnight, 

11th Dist. Lake No. 2008-L-029, 2009-Ohio-2951, ¶ 60 (finding no prejudice flowing from 

an inappropriate statement made at sentencing). Appellant’s final assignment of error 

lacks merit and is overruled. 

Conclusion

{¶133} In conclusion, each of Appellant’s eight assigned errors lack merit, and as 

such, the trial court’s decision is affirmed in its entirety.

.

Donofrio, P J., concurs.

Waite, J., concurs.
[Cite as State v. Olman, 2022-Ohio-2647.]

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of the 

Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.