[Cite as State v. Collins, 2011-Ohio-6365.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 10 CO 10 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

EARL COLLINS ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Appeal from the Court of Common Pleas 

of Columbiana County, Ohio 

Case No. 09 CR 184 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Robert Herron 

Columbiana County Prosecutor 

Atty. Timothy J. McNicol 

Assistant Prosecuting Attorney 

105 South Market Street 

Lisbon, Ohio 44432 

For Defendant-Appellant: Atty. Douglas A. King 

Hartford, Dickey & King Co., LPA 

91 West Taggart Street 

P.O. Box 85 

East Palestine, Ohio 44113 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: December 9, 2011
[Cite as State v. Collins, 2011-Ohio-6365.]

WAITE, P.J. 

{1} Appellant Earl Collins appeals the December 17, 2009 jury verdict of 

the Columbiana County Court of Common Pleas convicting him on one count of rape 

with an age specification. The incident occurred during the late evening of March 27, 

2008, when Appellant arrived at the home of his friend Lisa Soles to babysit her 

daughter, M.S., then nearly three years old. At some time that evening Appellant 

removed the child from her room, took her to her mother’s room, removed her 

pajama bottoms, and “tickled” her vaginal and anal areas with his tongue before 

returning her to her bed. Ms. Soles overheard M.S. talking to Appellant about the 

incident the next morning and confronted him. Over the course of that day (March 

28, 2008) and during the following week Appellant gave varying explanations for the 

incidents of that night, threatened suicide, and refused to disclose his location to 

friends and to law enforcement. Appellant then fled the state for an extended period. 

On March 28, 2008 M.S.’s mother consulted her pediatrician; the incident was 

reported to the Columbiana County Department of Jobs and Family Services, the 

police, and the Tri-County Child Advocacy Center, where M.S. was later evaluated. 

When Appellant returned to the area, he was indicted on one count of rape with an 

age specification. Appellant was tried and convicted on that count and sentenced to 

an indefinite term of fifteen years to life. 

{2} On appeal Appellant’s first and fifth assignments of error allege 

violations of his Fifth Amendment rights based on comments that Appellant alleges 

touch on his pre-arrest silence. His second assignment challenges the court’s 

decision finding M.S. competent to testify. His third and fourth assignments argue 
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Sixth Amendment violations in the deposition of M.S. and in testimony given by Ms. 

Soles and Dr. Paul McPherson. Appellant’s sixth assignment of error alleges the jury 

was not properly instructed on the state’s burden of proof. His seventh and eight 

assignments of error challenge the sufficiency and weight of the evidence. His final, 

ninth, assignment of error alleges that cumulative error deprived him of a fair trial. All 

of Appellant’s assignments are without merit and the judgment of the trial court is 

hereby affirmed. 

HISTORY OF THE CASE

{3} On the evening of March 27, 2008, Lisa Soles had arranged to go out 

with a friend. Both M.S. and the friend’s son stayed together at Ms. Soles’s house. 

Appellant, Earl Collins, was a long-time friend of Ms. Soles and was at that time 

frequently spending the night on her couch because he did not have a permanent 

home. By prior arrangement Appellant was to watch both children that night. When 

he arrived, around ten that evening, both children were asleep. Ms. Soles and her 

friend left and Ms. Soles returned alone around midnight. When she entered the 

house she asked Appellant if the children had been quiet and was told the children 

had slept the whole time. (Tr. Vol. I, p. 167.) While making breakfast the next 

morning, Ms. Soles heard her daughter exclaim to Appellant: “Earl, you licked my 

peepee. Earl you licked my butt.” (Tr. Vol. I, p. 166.) Ms. Soles confronted 

Appellant, who claimed M.S. had defecated in her underwear the night before and 

that he cleaned her up, and had “wiped” her, not “licked” her. Ms. Soles noticed that 

M.S. was still wearing the same underwear she had been wearing when she was put 
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to bed the night before. Ms. Soles asked Appellant about the underwear, and he 

said the stool was so hard he had removed it from M.S.’s underwear, but that there 

was no mark, so he’d left the same underwear on. 

{4} After talking with her daughter Ms. Soles went to her own room and 

found M.S.’s pajama bottoms on the floor near her bed. Ms. Soles called Appellant 

and told him what her daughter had said; he responded that he wouldn’t watch the 

child anymore “if that’s the things she’s going to say.” Ms. Soles assured him he 

would no longer be near the child again. (Tr. Vol. I, p. 171.) Ms. Soles then called 

her daughter’s pediatrician, Mahoning County Children Services, the child’s father, 

and a friend, Pam Sturgeon, who she believed would know what to do because of 

her training as a teacher’s aide. M.S. was examined by Ms. Soles, who is a nurse. 

An appointment was scheduled for M.S. with the Child Advocacy Center. Ms. Soles 

decided not to take M.S. to the emergency room because she did not see any 

bleeding and she did not believe, based on M.S.’s statements, that there had been 

penetration. (Tr. Vol. I, p. 180.) 

{5} During the course of the day Ms. Soles received a second phone call 

from Appellant, during which he said that, “* * * if he did it, it was unintentional. He 

doesn’t remember. He may have been blacked out or passed out.” (Tr. Vol. I, p. 

175.) When Ms. Soles asked why he took M.S. out of her bed he replied that the bed 

was too low to change her in. Ms. Soles testified at trial that M.S. was wearing the 

same underwear the next morning that she had worn to sleep. She also confirmed 

that she found M.S.’s pajama sweat pants, which M.S. had also worn to sleep, on the 
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floor in her own bedroom that morning, not M.S.’s. Appellant called her one last time 

that day and repeated his assertions “‘* * * again, if I did it, it was unintentionable [sic] 

– unintentional. I’m an asshole and I deserve to die if I did it.* * * ‘Do I need to worry 

about somebody slashing my throat?’” (Tr. Vol. I, p. 178.) Ms. Soles did not see or 

hear from Appellant again until the next fall during court proceedings, more than a 

year later. 

{6} Ms. Soles went to the police department to report the incident. Ms. 

Sturgeon, a friend of both Ms. Soles and Appellant, accompanied Ms. Soles and 

allowed the police to record a message left by Appellant on her phone. The 

message, which indicated that Appellant was going to harm himself, initiated a series 

of phone calls between various police officers, Appellant, and Appellant’s ex-wife 

Sheila Reidy. The phone calls culminated with a recorded conversation between 

Appellant and Sergeant Dickey in which Appellant stated that he would not harm 

himself. (Tr. Vol. I, p. 284.) This conversation was the last contact between the 

police department and Appellant until September 30, 2009 when he gave his 

brother’s name and birth date instead of his own during a traffic stop. According to 

the testimony of various witnesses, Appellant left Ohio for Texas and remained there 

for more than a year. Although he may have returned for holidays and may have 

spent some time in a camper somewhere in Columbiana County during that period, 

law enforcement was not aware of his presence. (Tr. Vol. II, p. 264.) Witnesses 

agree that he was absent from the places he usually frequented and many of his 
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friends did not see him at all for the entire period from March 28, 2008 until he was 

arrested in September of 2009. 

{7} When Appellant left Ms. Soles’s house on March 28, 2008, he met up 

with Bob Lalley who describes himself as one of Appellant’s “top five” friends at the 

time. He spent the day with Mr. Lalley, an upholsterer for whom he occasionally 

worked, on a furniture pick-up. Mr. Lalley testified that Appellant was unusually quiet, 

left abruptly toward the end of the day, and later called him and said “I did something 

I could go to prison for * * * I touched a little girl inappropriately.” (Tr. Vol. II, p. 292.) 

Mr. Lalley asked Appellant where he was, but he refused to disclose his location. 

Appellant called Mr. Lalley one last time about a week later, and accused him of 

spreading rumors. Mr. Lalley responded that he had only repeated what Appellant 

had told him. (Tr. Vol. II, p. 294.) Mr. Lalley did not see or hear from Appellant again 

until trial. 

{8} In addition to occasionally working for Mr. Lalley, Appellant was a 

regular employee at United Technical Support Services. His supervisor, Ronald 

Duffey, testified that he was a good worker, and that in early May, Appellant 

requested an out-of-state transfer to Georgia. Appellant was approved for the 

transfer and on May 21, 2008 received a $2500.00 check from his employer for 

relocation expenses. Mr. Duffey was surprised when Appellant called three days 

later and resigned. Appellant never returned the check. About the same time, on 

May 23, 2008, Appellant agreed to meet with Bettina Dillworth, an investigator from 

the prosecutor’s office. Appellant said he would meet Ms. Dillworth at the police 
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department on May 24, 2008 at 1:00 p.m., the same day he resigned. Appellant did 

not keep the appointment. More than a year later, on September 30, 2009, Appellant 

was riding in the back of a friend’s pick-up truck. When the truck was stopped and 

the occupants asked to identify themselves Appellant gave his brother’s name, 

“Chuck,” and his brother’s birth date. (Tr. Vol. I, p. 223.) The officer allowed him to 

correct his response, and then arrested him on the outstanding warrant. (Tr. Vol. I, 

pp. 224-225.) 

PROCEDURAL HISTORY

{9} Appellant was indicted by the Columbiana County Grand Jury on 

August 26, 2009 for the conduct alleged to have occurred on March 27, 2008. The 

indictment identified a single count of rape in violation of R.C. 2907.02 (A)(1)(b), a 

first degree felony, which provides: “[n]o person shall engage in sexual conduct with 

another who is not the spouse of the offender or who is the spouse of the offender 

but is living separate and apart from the offender, when any of the following applies * 

* * (b) [t]he other person is less than thirteen years of age, whether or not the 

offender knows the age of the other person.” A jury trial was conducted on 

December 16 and 17, 2009. Bettina Dillworth, Lisa Soles, Linda Eveleth, Officer 

Richard Pillsbury, Deputy William McGee, Pam Sturgeon, Sheila Reidy, Sergeant 

Kevin Dickey, Robert Lalley, Ronald Duffey, and Glenn Verden testified at trial for the 

prosecution. The video depositions of M.S. and Dr. Paul McPherson were played for 

the jury and introduced into evidence. Donald Reidy testified for the defense. After 
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evidentiary rulings, the defense moved for acquittal under Rule 29. The motion was 

denied. 

{10} A verdict of guilty was returned by the jury on December 17, 2009. The 

jury was polled at the request of defense counsel. On December 22, 2009, judgment 

was entered and the sentencing disposition scheduled. The sentencing hearing was 

conducted on February 12, 2010. On February 19, 2010 the sentence, an indefinite 

term of fifteen (15) years to life, with five years of post-release control and required 

registry as a “Tier III Sexual Offender,” was entered in the record. Appellant was 

given credit for one hundred and thirty-six (136) days served. Appellant filed his 

timely appeal on March 2, 2010. 

ASSIGNMENT OF ERROR NO. 1

{11} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY 

ALLOWING THE PROSECUTOR TO INTRODUCE EVIDENCE OF 

DEFENDANT/APPELLANT’S ASSERTION OF HIS FIFTH AMENDMENT RIGHTS 

AND BY IMPROPER COMMENT THEREON.” 

{12} In this first assignment of error, Appellant cites five instances he alleges 

amount to Fifth Amendment violations made during the state’s case-in-chief and 

three statements made by the prosecutor in closing he claims are not only violations 

of his Fifth Amendment rights, but also are due process violations. Of these, the 

statements made during the trial either do not constitute references to protected 

silence at all or were introduced, not by the state, but by defense. Only the 

statements made in closing actually touch on Appellant’s rights to silence. 
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Statements made in closing are not substantive evidence and are not evaluated 

under the same rule as statements made during the case-in-chief. 

{13} In Appellant’s fifth assignment, he argues prosecutorial misconduct 

occurred in connection with these same statements from his first assignment. 

Because the subject matter of Appellant’s first and fifth assignments overlap, we will 

address these assignments out of turn. 

{14} As to his first assignment of error, the Fifth Amendment to the United 

States Constitution provides that no person “shall be compelled in any criminal case 

to be a witness against himself.” The protections of the Fifth Amendment apply to the 

states through the Fourteenth Amendment. State v. Leach, 102 Ohio St.3d 135, 

2004-Ohio-2147, 807 N.E.2d 335, citing Malloy v. Hogan (1964), 378 U.S. 1, 6, 84 

S.Ct. 1489, 12 L.Ed.2d 653. The Ohio Supreme Court considered the Fifth 

Amendment implications of pre-Miranda silence in Leach. The Leach Court, noting 

that the United States Supreme Court had not yet ruled on the issue, held that “[u]se 

of a defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth 

Amendment” because “the use of [the defendant’s] pre-arrest silence in the state’s 

case-in-chief as substantive evidence of guilt subverts the policies behind the Fifth 

Amendment.” Id. at syllabus; ¶30. 

{15} Leach involved charges of attempted rape, gross sexual imposition and 

kidnapping. The individuals involved had been given access to a third party’s house 

while the homeowner was away, but appear to have been instructed not to be there 

at the same time. There was no physical evidence offered at trial and the case 
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rested solely on the testimony of the individuals concerned. Following the incident, 

the homeowner, a friend of the defendant, told the police that the defendant wanted 

to speak with them and gave the police his phone number. At trial the police 

sergeant was permitted to testify that he used the phone number provided to contact 

the defendant. When the sergeant spoke with the defendant, he set up an 

appointment for the defendant to come in and talk to him in person. However, the 

defendant did not keep the appointment and instead left a message on the 

sergeant’s phone indicating that he “wanted to speak with an attorney before talking 

with the police.” Id. ¶5. 

{16} The Supreme Court found that defendant’s decision to speak with an 

attorney was an invocation of his Fifth Amendment rights and that testimony during 

the state’s case in chief concerning a defendant’s invocation of the Fifth Amendment 

is a violation of that Amendment’s guarantee against self-incrimination. The Court 

reasoned that allowing the “[u]se of pre-arrest silence in the state’s case-in-chief 

would force defendants either to permit the jury to infer guilt from their silence or 

surrender their right not to testify and take the stand to explain their prior silence.” Id. 

at ¶31. The Court explained that “[t]o hold otherwise would encourage improper 

police tactics, as officers would have reason to delay administering Miranda warnings 

so that they might use the defendant’s pre-arrest silence to encourage the jury to 

infer guilt.” Id. 

{17} The Court distinguished the use of pre-arrest silence in the case in chief 

from pre-arrest silence used to impeach. The latter is allowed, because 
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impeachment necessarily means the defendant has elected to set aside the 

protection and to testify. “[U]se of pre-arrest silence as impeachment evidence is 

permitted because it furthers the truth-seeking process. Otherwise, a criminal 

defendant would be provided an opportunity to perjure himself at trial, and the state 

would be powerless to correct the record.” Id. at ¶33. The Court also distinguished 

testimony concerning the defendant’s decision to exercise his right to silence, and to 

speak to an attorney, from testimony concerning the fact that the defendant did not 

keep an appointment he scheduled with the police. The Court considered and 

rejected a “course of the investigation” explanation for the testimony concerning 

defendant’s decision to consult an attorney; importantly, however it did determine that 

had the sergeant’s testimony in Leach been limited to the fact that an appointment 

had been made, but had not been kept, there would be no Fifth Amendment 

violation. Id. at ¶32. 

{18} The Leach Court found that testimony reflecting a defendant’s decision 

to speak to an attorney rather than talk to the police was “intended to lead the jury to 

one conclusion * * * that innocent people speak to police to clear up 

misunderstandings, while guilty people consult with their attorneys.” Id. The Court 

noted repeated references by the state, first in opening, then at multiple points during 

the case-in-chief and in closing, to the fact that the defendant chose to speak to an 

attorney rather than talk to the police. The Court concluded “the state’s substantive 

use of the defendant’s pre-arrest, pre-Miranda, silence substantially subverts the 

policies behind the Fifth Amendment privilege against self-incrimination and is not a 
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legitimate governmental practice. * * * Therefore, we hold that use of a defendant’s 

pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment 

privilege against self-incrimination. Because the evidence of guilt was not 

overwhelming in this case, the admission of defendant’s pre-arrest pre-Miranda

silence was clearly prejudicial.” Id. at ¶37-38. The Leach Court remanded the matter 

for a new trial. 

{19} In the matter at bar, there are certainly some factual similarities with 

Leach. In neither case did the appellant take the stand. In the matter at bar there 

was no physical evidence, although the events described in both cases do not 

suggest an abundance of physical evidence existed in either case. Here, Appellant 

had been told that the police wanted to talk to him. He called the police to let them 

know that he did not intend to commit suicide; but did not discuss with them the facts 

of the case or assert his innocence. Similarly, in Leach the defendant spoke to police 

but did not discuss the incident with law enforcement. However, in Leach, the 

defendant actually said that he must consult a lawyer prior to talking to police, 

specifically asserting his Miranda rights in advance. The state then chose to inform 

the court, several times in testimony, that the Leach defendant chose to speak to an 

attorney rather than to the police. This is the crucial divergence in facts. Mr. Leach 

directly asserted his Fifth Amendment rights when he refused to discuss the actual 

incidents with the police, instead, clearly stating that he wanted to speak to an 

attorney, first. In the matter before us, no such clear action was taken by Appellant. 

In fact, at no time did police even get as far in their conversations as to question 
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Appellant about the incident. Their efforts were directed towards setting up a 

meeting with Appellant to further their investigation and their testimony was limited to 

these efforts. 

{20} During the state’s case-in-chief Officer Pillsbury testified that on March 

28, 2008, after he and Patrolman Moore drove to several locations looking for 

Appellant, he spoke with Appellant on the phone. In response to the prosecutor’s 

questions, Officer Pillsbury carefully explained that not only was he not the 

investigating officer on the case, he was in fact off-duty and had been called in to 

assist Patrolman Moore because he had a social relationship with Appellant. Officer 

Pillsbury further testified that when he was called in and interacted with Appellant, it 

was at that point solely because Appellant’s suicidal statements had been reported to 

the police resulting in the need to investigate the potential suicide warning. That 

night when Officer Pillsbury finally spoke to Appellant, he told him that there were no 

warrants for his arrest and that he and Patrolman Moore were solely concerned 

about his physical well being. He also told Appellant that there would, in fact, be an 

investigation into the rape allegations and that the police would want to talk to him, 

but that their primary concern at that time was in making sure Appellant would not 

harm himself. Officer Pillsbury stated that this conversation was the last he had with 

Appellant, and that he had not spoken with him as a law enforcement officer or as a 

friend since that night. (Tr. Vol. I, pp. 215-217.) He went on to describe the nature of 

his relationship with Appellant and his lack of involvement with the rape investigation 

beyond March 28, 2008. 
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{21} Defense counsel did not object to Officer Pillbury’s testimony. On 

appeal, Appellant raises as error Officer Pillbury’s response to defense counsel’s 

question: “Officer, I just have one question for you. You believe that it was unusual 

that Mr. Collins didn’t come around to the Moose Club with these accusations out 

there? Is that what you think?” (Tr. Vol. I, p. 218.) To which Officer Pillsbury 

responded “[w]ell, if he was innocent of them, then I see no reason why he didn’t 

come in, speak to the police, and continue his life as normal.” Id. Rather than object 

or request a corrective instruction, defense counsel continued, “[o]kay, You don’t 

think this is embarrassing for someone, maybe they wouldn’t want to be around 

people or see people, have people ask them about it?” (Tr. Vol. I, p. 218.) Hence, 

the only damaging testimony was actually in answer to Appellant’s own counsel’s 

question. Testimony elicited by the defense during the state’s case-in-chief cannot 

be construed as an improper attempt by the state to make probative use of a 

defendant’s silence. This is not the type of comment Leach is designed to protect 

against. To hold otherwise would allow enterprising defense counsel to create 

reversible error by deliberately eliciting improper testimony from the state’s 

witnesses. On appeal, the state cannot be held responsible for testimony sought and 

obtained by the defense. 

{22} Similarly, Appellant complains of statements made during the testimony 

of Bettina Dillworth, an investigator from the prosecutor’s office who attempted to 

interview Appellant before he left the state. A significant portion of what Appellant 

describes as testimony that Appellant hindered the investigation into the matter and 
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that his failure to give the police a statement delayed his indictment in this matter, 

were again responses to defense counsel’s questions. Defense counsel asked, “just, 

for clarification, you had indicated that the case wasn’t taken to grand jury because 

you were waiting on test results, waiting on statements * * * [w]as Mr. Collins’ [sic] 

statement necessary to take this case to grand jury?” (Tr. Vol. II, p. 319.) To which 

Ms. Dillworth responded that Appellant’s statement and his DNA would have been 

“very helpful” and that because they were unable to locate him they could not request 

DNA which they often get “near the beginning of the case” and that both problems 

“played in the timeline” of the case. (Tr. Vol. II., pp. 319-320.) Not only was this 

testimony not elicited by the prosecutor, it is the type of “course of investigation” 

testimony Leach allows and is independently relevant to explain the passage of time 

between the incident, the indictment, and the arrest. 

{23} The statements made by Officer Pillsbury and Ms. Dillworth are not 

examples of the improper use of a defendant’s protected silence that Leach prohibits. 

No objection was made to any of the statements and, in fact, any damaging 

testimony was solicited by Appellant’s own counsel. 

{24} Turning to the comments that were actually solicited by the state, 

Appellant argues that comments by other officers and Ms. Dillworth constituted error 

because they impinged on his Fifth Amendment rights to protected silence. Appellant 

complains that Sergeant Dickey testified that no one in the department was contacted 

by Appellant during the investigation despite the fact that the sergeant encouraged 

Appellant’s ex-wife to have him get in touch with police. (Tr. Vol. II, p. 284.) He also 
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takes issue with the prosecutor’s investigator’s comments. Ms. Dillworth testified 

about her attempts to set up an appointment with Appellant. She became involved 

with the case when she received a request for assistance from an intake worker at 

Children Services. Ms. Dillworth said she did receive a phone call from Appellant on 

May 23, 2008. Appellant asked her if she worked for the prosecutor’s office. When 

she said yes, she asked to set up an appointment to “talk about some things.” 

Appellant responded that “it’s all bullshit” and asked if he would be arrested when 

they met. Ms. Dillworth told him that the case was at an investigative stage, they 

wanted his perspective, and that he would be able to leave. The two agreed to meet 

on May 24, 2008, in the afternoon. (Tr. Vol. II, pp. 310-311.) Appellant did not keep 

the appointment. This is the full extent of Ms. Dillworth’s testimony and is limited 

solely to the course of the investigation. Unlike the situation in Leach, where the 

appellant was asked questions relevant to the incident and refused to answer 

because he wished to talk to a lawyer, the scenario with Ms. Dillworth is exactly the 

fact pattern the Leach Court specifically held that it would condone: an initial contact 

with a defendant to make an appointment that the defendant did not keep. Leach at 

¶32. We also note that Ms. Dillworth does not have arrest powers and any 

discussion with her, pre-arrest, must be entirely noncustodial. 

{25} While Sergeant Dickey’s testimony, in response to the state’s 

questions, appears to be entirely gratuitous on the part of the state, once again, his 

comments appear to be directed at the lack of cooperation in even an initial 

investigation. His testimony that Appellant’s ex-wife was encouraged by police to 
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have Appellant contact them to no avail appears to be confined to an appointment 

not kept. To the extent it overreaches because it implies Appellant should have 

contacted the department and did not, it cannot be said to rise to the level of a Leach 

violation. There is law in this state holding that law-enforcement testimony describing 

pre-arrest, pre-Miranda discussions with defendants including the defendant’s 

decision not to answer certain questions, has been distinguished and exempted from 

Leach prohibitions. State v. Onunwor, 8th Dist. No. 93937, 2010-Ohio-5587, ¶55. In 

Onunwor, as in the case at bar, the defendant initially made voluntary contact with 

the police. In Onunwor, the defendant actually met with the investigating officer. 

During his voluntary interview concerning a shooting, the defendant answered some 

questions but declined to answer others. The defendant did not testify at trial. The 

interviewing officer was allowed to testify as to the initial, voluntary contact, and to the 

fact that in response to questions including do you want “to get to the bottom of who 

killed [your] mother?” defendant “fell silent.” Id. at ¶50. Sergeant Dickey’s testimony 

to the effect that Appellant would not even make an appointment to talk with 

investigating officers falls far short of the police testimony permitted by Onunwor. 

Thus, it cannot possibly rise to the level of that prohibited in Leach. 

{26} Additionally, the issues to be resolved at trial here included the length of 

time between the complaint, the indictment, and the arrest as well as the fact that 

although Ms. Soles’s bed sheets were later collected for DNA analysis, no evidence 

was initially collected, and no interviews were conducted by the Columbiana County 

Police Department. During trial, defense counsel elicited testimony from various 
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witnesses concerning threats alleged to have been made against Appellant by M.S.’s 

family. This testimony was relevant to the defense’s explanation of his flight to Texas 

as a fear of reprisal rather than consciousness of guilt. Under the circumstances, 

testimony from the various officers concerning the lack of further contact with 

Appellant is relevant both to the fact that none of the alleged threats were reported 

and as an explanation of the delay between the incident and the indictment. 

{27} The worst construction of Sergeant Dickey’s testimony that Appellant 

made no further contact with either him or anyone else in the police department is 

akin to the interviewer’s testimony in Onunwor that defendant was “unresponsive” to 

specific questions during his voluntary interview. Both his testimony and Ms. 

Dillworth’s are also independently relevant to the state’s case-in-chief. Appellant fled 

the jurisdiction before a complete investigation of the incident. The fact of Appellant’s 

departure and prolonged absence is independently relevant to the timeframe of the 

criminal case. In contrast to Leach, where there was very little gap between 

complaint and indictment and no flight, the officers’ testimony is independently 

relevant to the specific facts of the matter at bar. Because the testimony elicited by 

the prosecutor in the instant matter had multiple, legitimate, purposes in the context 

of the other issues addressed at trial, we cannot find that it was solely relevant to an 

impermissible inference of guilt. Unlike Leach, the testimony introduced by the state 

at trial was not “clearly meant to allow the jury to infer [Appellant’s] guilt.” For this 

reason, and because the testimony did not directly refer to Appellant’s assertion of 

his right to silence, but, instead, supported a “course of investigation” argument, we 
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cannot find that inclusion of this testimony amounts to a violation of the Fifth 

Amendment. The testimony, while questionable, had independent relevance and 

does not constitute error. Leach at ¶25. 

{28} With regard to the statements made in the state’s case-in-chief 

Appellant’s first assignment of error is overruled. We will address statements made 

during closing arguments in Appellant’s fifth assignment of error out of order. 

ASSIGNMENT OF ERROR NO. 5

{29} “DEFENDANT/APPELLANT WAS DENIED HIS RIGHT TO DUE 

PROCESS AND A FAIR TRIAL BECAUSE OF IMPROPER COMMENTS BY THE 

PROSECUTION DURING CLOSING ARGUMENT.” 

{30} Appellant’s fifth assignment of error restates the Fifth Amendment and 

introduces due process challenges to the statements made during the state’s closing. 

Neither the Ohio Supreme Court nor the United States Supreme Court has ruled on 

whether the use of pre-arrest silence constitutes a due process violation. The Ohio 

Supreme Court declined to reach the issue in Leach because it ordered a new trial 

based on violations of the Fifth Amendment, alone. Leach, ¶37, fn1. Whether the 

conduct identified is a Fifth Amendment and/or a due process violation, the standard 

of review for misconduct is the same. 

{31} We review allegations of prosecutorial misconduct by first determining 

whether the actions by the prosecution were improper, and, if so, whether they 

prejudiced Appellant's substantial rights. State v. Treesh (2001), 90 Ohio St.3d 460, 

480, 739 N.E.2d 749. “In determining whether the prosecutor’s statements affected a 
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substantial right of the defendant, an appellate court should consider the following 

factors: ‘(1) the nature of the remarks; (2) whether an objection was made by 

defense counsel; (3) whether the court gave any corrective instructions; and (4) the 

strength of the evidence presented against the defendant.’” State v. Scott, 7th Dist. 

No. 07 MA 152, 2009-Ohio-4961, ¶85, quoting State v. Breland, 11th Dist. No. 2003-

A-0066, 2004-Ohio-7238, ¶29. 

{32} Prosecutorial misconduct will not provide a basis for reversal unless the 

misconduct can be said to have deprived Appellant of a fair trial based on the entire 

record. State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293; State v. 

Skidmore, 7th Dist. No. 08 MA 165, 2010-Ohio-2846, ¶44; appeal not allowed, 2010-

Ohio-4928, 126 Ohio St.3d 1602, 935 N.E.2d 47. The latitude afforded prosecutors 

in closing argument does not “‘encompass inviting the jury to reach its decision on 

matters outside the evidence adduced at trial’ or ‘allud[ing] to matters not supported 

by admissible evidence.’” State v. Freeman (2000), 138 Ohio App.3d 408, 419, 741 

N.E.2d 566, quoting State v. Hart (1994), 94 Ohio App.3d 665, 671, 641 N.E.2d 755. 

A closing argument is considered in its entirety to determine whether it was 

prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150, 157, 407 N.E.2d 1268; 

Skidmore, ¶53. Finally, the test for prosecutorial misconduct focuses on “the fairness 

of the trial, not the culpability of the prosecutor.” State v. Noling, 98 Ohio St.3d 44, 

2002-Ohio-7044, ¶91, 781 N.E.2d 88. 
-20-

(A) General Misconduct.

{33} In Appellant’s fifth assignment of error he alleges prosecutorial 

misconduct in the closing argument. Appellant first argues that the state improperly 

appealed to the emotions of the jury by referencing their personal experience of 

children and reminding the jury how “tough” testifying had been for M.S., thus, 

intending to inflame the passions of the jury. No objection was raised before the trial 

court, therefore Appellant has waived all but a plain error review. Crim.R. 52(B). The 

plain error doctrine requires that we find an obvious error that affected substantial 

rights under exceptional circumstances. Crim.R. 52(B); State v. Barnes (2002), 94 

Ohio St.3d 21, 27, 759 N.E.2d 1240. It cannot be utilized unless the outcome clearly 

would have been different if not for the error. State v. Waddell (1996), 75 Ohio St.3d 

163, 166, 661 N.E.2d 1043. Neither of the instances Appellant raises constitutes 

plain error. 

{34} Appellant’s arguments substantively mischaracterize these statements. 

The prosecution, in response to testimony concerning the possibility that the child 

witness may have been coached to describe misconduct, referred to the difficulty the 

court, the prosecutor, defense counsel, and other witnesses had when questioning 

M.S. M.S. was an active child, fidgeting and kicking her feet while seated to answer 

questions, and easily distracted. The state’s remark in closing was directed to how 

difficult it was to get M.S. to focus and the inference made was that it would be 

difficult to coach such a child. The prosecution’s reference to the jury’s “experiences 

with children” was a request that they evaluate M.S.’s testimony describing the act in 
-21-

the context of their experience of children. It was intended to highlight the fact that 

the acts M.S. described were “not concepts that are normal for children to talk about * 

* [t]hese are foreign ideas that children have no idea of their significance.” (Tr. Vol. II, 

p. 359.) Comment upon testimony is “within the bounds of the prosecutor’s wide 

latitude in closing argument.” State v. Davis (1996), 76 Ohio St.3d 107, 119, 666 

N.E.2d 1099. In context, neither statement identified by Appellant constitutes 

misconduct. There is no need for the court to “invoke a plain error analysis” if none 

“of the complained of prosecutorial comments constituted misconduct.” Id. The 

state’s comments in closing concerning M.S.’s demeanor and testimony were not an 

improper appeal to emotion, and did not constitute error. 

{35} Appellant also argues that the state’s comment on the testimony given 

by Ms. Dillworth that established Appellant’s failure to keep his appointment with her 

was misconduct. Under Leach, which Appellant mis-cites in support of this 

proposition, such testimony is explicitly allowed: “Sergeant Corbett’s testimony that 

he had made an appointment to meet with Leach to discuss the case but that the 

appointment was not kept is legitimate.” Leach, at ¶32. Since the testimony itself 

was appropriate, comment on that testimony is equally appropriate. Davis, supra, 

119. These remarks did not constitute misconduct, therefore no error analysis is 

required. Id. 

(B) Fifth Amendment Violations.

{36} Finally, Appellant also argues that use of the same statements alleged 

to be Fifth Amendment violations in his first assignment of error by the prosecutor in 
-22-

closing also constitute due process violations. In his closing argument the prosecutor 

referred to the testimony given by Officer Pillsbury and Sergeant Dickey. With 

reference to Sergeant Dickey’s testimony the prosecutor stated, “[m]ost importantly, 

though,* * *he didn’t even tell Sergeant Dickey that he didn’t do it. Here he is, it’s his 

only opportunity. It’s the only documentation we have of him talking to an East 

Palestine police officer besides Pillsbury * * * and he didn’t even tell Sergeant Dickey 

that he didn’t do it when he had the clear opportunity.” (Tr. Vol. II, pp. 371-372.) 

Statements made in opening and in closing are not substantive evidence, and as 

such are outside the explicit rule articulated by the Ohio Supreme Court in Leach. 

However, the use of such statements implicates the exact dilemma the Supreme 

Court designed the Leach decision to avoid: “use of pre-arrest silence * * * would 

force defendants either to permit the jury to infer guilt from their silence or surrender 

their right not to testify and take the stand to explain their prior silence.” Id. at ¶31. 

Comment on pre-arrest silence in closing creates the same issue; either a defendant 

must forego his right to be (and to remain) silent, or he faces comment on that 

silence. At oral argument the state vehemently defended statements made in closing 

as fair comment on testimony. The state is incorrect in this argument. The 

prosecutor’s comments were an expansion on the “course of investigation” testimony 

offered by Sergeant Dickey and was clearly intended as an inference of guilt. No 

inference may be drawn from a defendant’s decision to remain silent, pre- or postarrest. This comment amounts to misconduct and, hence, constitutes error. 
-23-

{37} Statements made in closing concerning a defendant’s Fifth Amendment 

protected pre-arrest silence are most analogous to statements made in closing 

concerning a Fifth Amendment protected decision not to take the stand. Comments 

made by the state in closing on the decision not to take the stand are unanimously 

recognized as improper. Nevertheless, due to the wide latitude allowed parties in 

summation, although comment on a defendant’s decision not to take the stand 

constitutes erroneous misconduct, such comments are not always found to be 

reversible error. State v. Thompson (1987), 33 Ohio St.3d 1, 4-5, 514 N.E.2d 407 

(finding that, although the prosecutor in question may be liable for sanction, even 

complete sanction, that in the face of overwhelming physical evidence defendant 

could not prove prejudice); see also State v. Webb (1994), 70 Ohio St.3d 325, 328, 

638 N.E.2d 1023. 

{38} Once again, when the prosecutor commented in closing on Sergeant 

Dickey’s testimony, no objection was raised before the trial court, waiving all but a 

plain error review of each statement. Crim.R. 52(B). A finding of plain error cannot 

be made unless the outcome clearly would have been different if not for the error. 

Waddell, supra at 166. Statements must be considered both in the context of the 

entire closing and, if found to be error, in the context of the entire trial to determine 

whether the error necessitates reversal. The remarks identified by Appellant do not 

rise to that level. While these improper comments appear to be both irresponsible 

and overreaching, the record contains evidence, if believed, that would convict 

Appellant. Although the prosecution’s assertion concerning Appellant’s failure to use 
-24-

his “chance” to set the record straight was improper, the jury also had before it 

testimony concerning Appellant’s admission to his friend Mr. Lalley; his departure 

from the state; his lies about his identity; the various versions of the night’s events 

and his statements to Ms. Soles; and M.S.’s consistent description of her experience. 

It is impossible to conclude that but for the prosecutor’s statement Appellant would 

have been acquitted. The prosecutor’s comment was a single instance of an 

improper comment on protected silence that was an expansion on otherwise 

appropriate testimony and facts in evidence. In re J.R., 9th Dist. No. 04CA0066-M, 

2005-Ohio-4090. The prosecutor’s comments do not rise to the level of plain error. 

Neither the material in the record nor the arguments offered by Appellant 

demonstrate that the prosecutor’s error was the dispositive element tainting the jury’s 

decision. Appellant’s fifth assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 2

{39} “THE TRIAL COURT ABUSED ITS DISCRETION IN DECLARING M.S. 

COMPETENT TO TESTIFY AT AGE 41⁄2 REGARDING EVENTS THAT WERE 

ALLEGED TO HAVE OCCURRED WHEN M.S. LESS [SIC] THAN 3 YEARS OLD.” 

{40} Appellant’s second assignment of error challenges the trial court 

judge’s conclusion that M.S. was competent to testify. Competence is defined by 

statute and the evaluation of competence is conducted by the judge. Decisions 

regarding competence are discretionary and may be reversed only where there is an 

abuse of discretion. 
-25-

{41} Ohio Revised Code Section 2317.01, captioned “Competent 

witnesses,” provides that “[a]ll persons are competent witnesses except those of 

unsound mind and children under ten years of age who appear incapable of receiving 

just impressions of the facts and transactions respecting which they are examined, or 

of relating them truly * * * any examination made by the court to determine whether a 

child is a competent witness shall be conducted by the court in an office or room 

other than a courtroom or hearing room, shall be conducted in the presence of only 

those individuals considered necessary by the court for the conduct of the 

examination or the well-being of the child, and shall be conducted with a court 

reporter present. The court may allow the prosecutor, guardian ad litem, or attorney 

for any party to submit questions for use by the court in determining whether the child 

is a competent witness.” 

{42} Competence of a juvenile witness is evaluated using the factors 

specified by the Ohio Supreme Court in State v. Frazier (1991), 61 Ohio St.3d 247: 

{43} “(1) the child’s ability to receive accurate impressions of fact or to 

observe acts about which he or she will testify, (2) the child’s ability to recollect those 

impressions or observations, (3) the child’s ability to communicate what was 

observed, (4) the child’s understanding of truth and falsity and (5) the child’s 

appreciation of his or her responsibility to be truthful.” 

{44} Although the trial court must consider all the Frazier factors when 

determining competence, it is not required to make specific findings on each factor 

when ruling on competence. Schulte v. Schulte (1994), 71 Ohio St.3d 41, 43, 715 
-26-

N.E.2d 719. “The Frazier factors play a slightly different role in the hands of a court 

reviewing a competency determination. As we noted in Frazier, the determination of 

competency is within the sound discretion of the trial judge. The Frazier factors form 

the backdrop against which a reviewing court evaluates whether the trial judge's 

determination was an abuse of discretion.” (Internal citations omitted.) Id. at 

syllabus. 

{45} There are no magic words that qualify or disqualify a child witness. The 

trial court makes a holistic assessment, applying the factors identified by the 

Supreme Court. Absent a manifestly arbitrary or capricious decision, an assessment 

of the witness’s competence is within the trial court’s discretion as the court is in the 

best position to evaluate a witness it has directly examined. The trial court conducted 

a competency hearing and spent time questioning M.S. in a manner designed to 

address each of the Frazier factors. The fact that M.S. did not answer all of the 

questions “correctly,” according to Appellant, does not disqualify her. State v. 

Anderson, 154 Ohio App.3d 789, 2003-Ohio-5439. The trial court tested her ability to 

recollect and describe events, names, and people. The trial court discussed with her 

the difference between the truth and a lie and addressed whether or not it was 

important to tell the truth. The prosecutor and defense counsel both had the 

opportunity to ask additional questions. The court’s decision to find M.S. competent 

was made within the Frazier parameters. Nothing in the record supports a 

conclusion that the decision was unreasonable or arbitrary. Accordingly, we give the 
-27-

trial court’s assessment of the witness’s competence due deference and based on 

this record, it is affirmed. 

{46} Appellant’s second assignment of error is without merit, and is 

overruled. 

ASSIGNMENT OF ERROR NO. 3

{47} “THE TRIAL COURT ERRED IN PERMITTING THE DEPOSITION OF 

THE CHILD WITNESS AND IN PERMITTING THE SAME TO BE CONDUCTED 

WITHOUT THE DEFENDANT/APPELLANT PRESENT.” 

{48} Appellant’s third assignment of error suggests that the trial court 

violated his Sixth Amendment rights by allowing M.S. to be deposed, and deposed in 

a separate room. The deposition of a child victim and the use of such a deposition as 

testimony are controlled by statute. The same code section, R.C. 2945.481, 

establishes the procedures and requirements for the deposition of a child victim of 

specific crimes as well as special arrangements for the testimony of a child victim 

who is less than 13 in specific crimes, including R.C. 2907.02. M.S. was four years 

old in December, 2009. It is apparent, however, that Appellant’s third assignment of 

error relies upon a misreading of the statute. 

{49} The relevant portions of the statute reads: 

{50} “2945.481 Testimony of child victim. 

{51} “* * * 

{52} “[(A)](2) In any proceeding in the prosecution of a charge of a violation 

of * * * 2907.02 * * * in which an alleged victim of the violation or offense was a child 
-28-

who was less than thirteen years of age when the complaint, indictment, or 

information was filed * * * the judge of the court in which the prosecution is being 

conducted, upon motion of an attorney for the prosecution, shall order that the 

testimony of the child victim be taken by deposition. The prosecution may also 

request that the deposition be videotaped in accordance with division (A)(3) of this 

section. * * * The defendant shall have the right to attend the deposition and the right 

to be represented by counsel. Depositions shall be taken in the manner provided in 

civil cases, except that the judge shall preside at the taking of the deposition and 

shall rule at that time on any objections of the prosecution or the attorney for the 

defense. The prosecution and the attorney for the defense shall have the right, as at 

trial, to full examination and cross-examination of the child victim whose deposition is 

to be taken.* * * If a deposition of a child victim taken under this division is admitted 

as evidence at the proceeding under division (B) of this section, the child victim shall 

not be required to testify in person at the proceeding. * * * 

{53} “(3) If the prosecution requests that a deposition to be taken under 

division (A)(2) of this section be videotaped, the judge shall order that the deposition 

be videotaped in accordance with this division * * * the judge shall exclude from the 

room in which the deposition is to be taken every person except the child victim 

giving the * * * deposition, and any person whose presence the judge determines 

would contribute to the welfare and well-being of the child victim giving the 

deposition. The person chosen by the child victim shall not be a witness in the 

proceeding and, both before and during the deposition, shall not discuss the 
-29-

testimony of the child victim with any other witness in the proceeding. To the extent 

feasible, any person operating the recording equipment shall be restricted to a room 

adjacent to the room in which the deposition is being taken, or to a location in the 

room in which the deposition is being taken * * * so that the person operating the 

recording equipment can see and hear, but cannot be seen or heard by, the child 

victim giving the deposition during the deposition. The defendant shall be permitted 

to observe and hear the testimony * * * and shall be restricted to a location from 

which the defendant cannot be seen or heard by the child victim giving the 

deposition, except on a monitor provided for that purpose. * * * A deposition that is 

videotaped under this division shall be taken and filed in the manner described in 

division (A)(2) of this section * * * and, if a deposition that is videotaped under this 

division is admitted as evidence at the proceeding, the child victim shall not be 

required to testify in person at the proceeding * * * 

{54} “* * * 

{55} “(B)(1) At any proceeding in a prosecution in relation to which a 

deposition was taken under division (A) of this section, the deposition or a part of it is 

admissible in evidence upon motion of the prosecution if the testimony in the 

deposition or the part to be admitted is not excluded by the hearsay rule and if the 

deposition or the part to be admitted otherwise is admissible under the Rules of 

Evidence. For purposes of this division, testimony is not excluded by the hearsay 

rule * * * if both of the following apply: 
-30-

{56} “(a) The defendant had an opportunity and similar motive at the time of 

the taking of the deposition to develop the testimony by direct, cross, or redirect 

examination. 

{57} “(b) the judge determines that there is reasonable cause to believe that, 

if the child victim who gave the testimony in the deposition were to testify in person at 

the proceeding, the child victim would experience serious emotional trauma as a 

result of the child victim’s participation at the proceeding. 

{58} “(2) Objections to receiving in evidence a deposition or a part of it 

under division (B) of this section shall be made as provided in civil actions. 

{59} “* * * 

{60} “(C) * * * testimony of the child victim to be taken in a room other than 

the room in which the proceeding is being conducted and be televised, by closed 

circuit equipment, into the room in which the proceeding is being conducted to be 

viewed by the jury, if applicable, the defendant, and any other persons who are not 

permitted in the room in which the testimony is to be taken but who would have been 

present during the testimony of the child victim had it been given in the room in which 

the proceeding is being conducted. * * * 

{61} “(D) * * * testimony of the child victim to be taken outside of the room in 

which the proceeding is being conducted and be recorded for showing in the room in 

which the proceeding is being conducted before the judge, the jury, if applicable, the 

defendant, and any other persons who would have been present during the 
-31-

testimony of the child victim had it been given in the room in which the proceeding is 

being conducted. * * * 

{62} “(E) For purposes of divisions (C) and (D) of this section, a judge may 

order the testimony of a child victim to be taken outside the room in which the 

proceeding is being conducted if the judge determines that the child victim is 

unavailable to testify in the room in the physical presence of the defendant due to 

one or more of the following: 

{63} “(1) The persistent refusal of the child victim to testify despite judicial 

requests to do so; 

{64} “(2) The inability of the child victim to communicate about the alleged 

violation or offense because of extreme fear, failure of memory, or another similar 

reason; 

{65} “(3) The substantial likelihood that the child victim will suffer serious 

emotional trauma from so testifying. 

{66} “* * * 

{67} “(F)(2) A judge who makes any determination regarding the 

admissibility of a deposition under divisions (A) and (B) of this section, the 

videotaping of a deposition under division (A)(3) of this section, of the taking of 

testimony outside of the room in which a proceeding is being conducted under 

division (C) or (D) of this section, shall enter the determination and findings on the 

record in the proceedings.” (Emphasis added.) 
-32-

{68} On December 2, 2009 the prosecution moved for a deposition to be 

conducted pursuant to R.C. 2945.481, indicating that Appellant was charged with a 

violation of R.C. 2907.02, that the child victim in question was less than thirteen (13), 

and that the state intended to offer this testimony as evidence in lieu of live 

testimony. The state’s motion clearly provides for compliance with the statutory 

procedure: “[t]he State further agrees to make all necessary ‘technical’ arrangements 

for the videotaping of the child’s deposition, including the required monitors for both 

the child victim and Defendant pursuant to R.C. 2945.481(A)(3).” (12/2/09 Motion to 

Take Videotaped Depo.) The trial court set the motion for a hearing on December 7, 

2009. The hearing was conducted on the record. Defense counsel objected to the 

taking of the deposition, arguing that Appellant must be present unless the court 

makes a finding that the defendant’s presence at the deposition would harm the child 

prior to the deposition. The state agreed that such a finding is necessary to admit the 

deposition at trial, but stated that the deposition itself could go forward as provided 

under the rule, without this finding. The court specifically agreed with the prosecutor 

that the deposition could proceed pursuant to rule without a finding of harm, and 

found that the factors alluded to by defense counsel went to admissibility, not the 

conduct of the deposition itself. The court granted the motion for video deposition on 

the record and ordered the state “to make all necessary arrangements” for the 

deposition. (12/8/09 J.E.) 

{69} In Appellant’s third assignment of error he confuses the statutory 

requirements for a deposition to be taken pursuant to R.C. 2945.481(A)(2) and the 
-33-

requirements for a child victim to be allowed to testify outside of the courtroom 

pursuant to R.C. 2945.481(C) or (D). Under the plain language of the statue, the 

prosecution may move for a deposition, and may request that the deposition be 

videotaped as described, and the court “shall” grant those motions and make 

arrangements for the deposition to be conducted as described in the statute. R.C. 

2945.481(A)(2) and (3). A motion for deposition and “request” that the deposition to 

be videotaped, pursuant to R.C. 2945.481(A)(3), does not trigger the requirements of 

R.C. 2945.481(E) identified by Appellant. Motions for deposition may be granted 

without any inquiry into the mental state of the child, refusal of the child to speak, or 

inability of the child to communicate in the presence of defendant. If, however, the 

prosecution seeks to enter the deposition into evidence or offer the deposition in lieu 

of testimony, additional findings must be made. R.C. 2945.481(A)(2), (A)(3), (B). 

{70} Appellant’s third assignment of error challenges only the decision to 

allow the video deposition pursuant to R.C. 2945.481(A)(3), arguing that the 

deposition may only be conducted outside the presence of the defendant if the 

requirements of R.C. 2945.481(E) have been met. This is simply not the case. The 

requirements of R.C. 2945.481(E) explicitly apply only to sections (C) and (D) which 

qualify testimony given outside the courtroom. When a deposition is offered in 

evidence it must then satisfy part (B), which requires that the deposition have been 

conducted in a manner that fully allowed defendant, with similar motive and 

opportunity, to develop testimony as at trial. The requirements of (B)(1)(a) and (b) 

are similar, but not identical to the requirements of (E). 
-34-

{71} The state moved for deposition in accordance with the law, the court 

held a hearing on the motion, heard objections, determined the applicability of the 

statute and ruled on the record allowing the deposition. During the deposition 

Appellant’s counsel was present in the room with M.S., and Appellant appeared from 

the county jail using the court’s video arraignment equipment. (12/7/09 Status Conf. 

Tr., p. 6; 12/15/09 Comp. Hrg. Tr., pp 11-12; M.S. Depo., p. 2.) This is specifically 

allowed pursuant to the statue that allows for deposition. At trial, prior to permitting 

the state to play the deposition in lieu of testimony, the court found the conditions 

specified in R.C. 2945.481 had been met. (Tr., Vol. I, p. 132.) Appellant does not 

complain that the deposition was improperly admitted; rather, that it was improperly 

allowed to be taken in the first place. Appellant bears the burden to affirmatively 

show error by reference to the record. There is nothing in the record that 

demonstrates any irregularity in the deposition. Absent an affirmative showing and in 

light of the state’s explicit acknowledgment of the audio/visual requirements of R.C. 

2945.481(A)(3) this Court “has no choice but to presume the validity of the lower 

court’s proceedings.” Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 

199, 400 N.E.2d 384. Appellant’s third assignment of error is without merit and is 

overruled. 

ASSIGNMENT OF ERROR NO. 4

{72} “THE TRIAL COURT ERRED IN PERMITTING INADMISSIBLE 

HEARSAY TESTIMONY WHICH THE JURY RELIED UPON TO REACH ITS 
-35-

GUILTY VERDICT IN CONTRAVENTION OF THE DEFENDANT/APPELLANT’S 

SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSERS.” 

{73} Appellant’s fourth assignment of error challenges the trial court’s 

decision to allow testimony by Lisa Soles and Dr. Paul McPherson of statements 

made by M.S. No hearsay objection was made at trial to the testimony of Ms. Soles 

identified by Appellant. Appellant has waived all but plain error with regard to Ms. 

Soles’ statements. The state argues that the child’s statements, as described by Ms. 

Soles, are excited utterances and admissible under that exception to the hearsay 

rule. Objections to the testimony of Dr. McPherson were made, and overruled during 

his video deposition. Questions of admissibility are subject to the discretion of the 

trial court, absent an abuse of discretion, an appellate court will not disturb the ruling 

by a trial court as to the admissibility of evidence. State v. Martin (1985), 19 Ohio 

St.3d 122, 129, 483 N.E.2d 1157. An abuse of discretion connotes more than an 

error of judgment; it implies that the court’s attitude was unreasonable, arbitrary, or 

unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 

404 N.E.2d 144. 

{74} “Hearsay” is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted. Evid.R. 801(C). Evidence Rule 802 contains the general prohibition 

against the admission of hearsay. It provides: “Hearsay is not admissible except as 

otherwise provided by the Constitution of the United States, by the Constitution of the 

State of Ohio, by statute enacted by the General Assembly not in conflict with a rule 
-36-

of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the 

Supreme Court of Ohio.” Exceptions to this general prohibition are enumerated in 

Evid.R. 803. Pertinent to this appeal is Evid.R. 803(2), which permits the admission 

of the following: “Excited utterance. A statement relating to a startling event or 

condition made while the declarant was under the stress of excitement caused by the 

event or condition.” Although the statements identified by Appellant are hearsay, 

they are admissible under exceptions to the hearsay rule. 

{75} The admission of excited statements is based on a premise of 

reliability. “‘This exception derives its guaranty of trustworthiness from the fact that 

declarant is under such state of emotional shock that his reflective processes have 

been stilled. Therefore, statements made under these circumstances are not likely to 

be fabricated.’” Staff Note to Evid.R. 803(2) citing McCormick on Evidence, § 297 

(2d ed. 1972). In essence, “excited utterance must be the product of reactive rather 

than reflective thinking: ‘Reactive excited statements are considered more 

trustworthy than hearsay generally on the dual grounds that, first, the stimulus 

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

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

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

memory or risks of insincerity.’” (Emphasis in original.) State v. Taylor (1993), 66 

Ohio St.3d 295, 300, 612 N.E.2d 316 (citing Weissenberger's Ohio Evidence (1992), 

Section 803.16. See, also, 4 Louisell & Mueller, Federal Evidence (1980) 491-492, 

Section 439). 
-37-

{76} In Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 

140, the Ohio Supreme Court established a four-part test to determine the 

admissibility of a “spontaneous exclamation”: 

{77} “Such testimony as to a statement or declaration may be admissible 

under an exception to the hearsay rule for spontaneous exclamations where the trial 

judge reasonably finds (a) that there was some occurrence startling enough to 

produce a nervous excitement in the declarant, which was sufficient to still his 

reflective faculties and thereby make his statements and declarations the unreflective 

and sincere expression of his actual impressions and beliefs, and thus render his 

statement or declaration spontaneous and unreflective, (b) that the statement or 

declaration, even if not strictly contemporaneous with its exciting cause, was made 

before there had been time for such nervous excitement to lose a domination over his 

reflective faculties, so that such domination continued to remain sufficient to make his 

statements and declarations the unreflective and sincere expression of his actual 

impressions and beliefs, (c) that the statement or declaration related to such startling 

occurrence or the circumstances of such startling occurrence, and (d) that the 

declarant had an opportunity to observe personally the matters asserted in his 

statement or declaration.” (Emphasis sic.) Id. at paragraph two of the syllabus. 

{78} The fact that a statement is made in response to a question does not 

preclude it from being considered “excited utterance.” State v. Wallace (1988), 37 

Ohio St.3d 87, 524 N.E.2d 466. The “admission of a declaration as an excited 

utterance is not precluded by questioning which: (1) is neither coercive nor leading, 
-38-

(2) facilitates the declarant’s expression of what is already the natural focus of the 

declarant’s thoughts, and (3) does not destroy the domination of the nervous 

excitement over the declarant’s reflective faculties.” Id. at 93. 

{79} In Wallace the utterance deemed admissible was made by a five-yearold victim of assault fifteen (15) hours after the incident in response to questioning. 

During the fifteen intervening hours the child victim was unconscious or semiconscious. The Wallace Court held “[a] period of unconsciousness, even an 

extended period, does not necessarily destroy the effect of a startling event upon the 

mind of the declarant for the purposes of satisfying the excited-utterance exception to 

the hearsay rule.” Id. at paragraph one of the syllabus. The Court noted that a 

period of “[c]ontinuing emotional or physical shock” may prolong the effect of sexual 

assault, “particularly when victims are of tender years.” Id. at 90-91, fn 4. See also, 

State v. Humphries (1992), 79 Ohio App.3d 589, 607 N.E.2d 921; State v. Taylor

(1993), 66 Ohio St.3d 295, 612 N.E.2d 316; State v. Smith (1986), 34 Ohio App.3d 

180, 571 N.E.2d 933 (the time element is not the controlling factor in rape cases, the 

controlling elements are the “circumstances as would reasonably show that [the 

statement] resulted from impulse rather than reason and reflection.” Id. at 190.) 

{80} Also relevant to this assignment of error is Evid.R. 803, which provides 

“[t]he following are not excluded by the hearsay rule, even though the declarant is 

available as a witness” section (4) of Evid.R. 803 is titled “Statements for purposes 

of medical diagnosis or treatment.” Evidence Rule 803(4) allows “[s]tatements 

made for purposes of medical diagnosis or treatment and describing medical history, 
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or past or present symptoms, pain, or sensations, or the inception or general 

character of the cause or external source thereof insofar as reasonably pertinent to 

diagnosis or treatment” to be admitted in evidence even though they would otherwise 

be excluded as hearsay. The Ohio Supreme Court considered the admissibility of 

statements made by a child victim at length in State v. Dever (1992), 64 Ohio St.3d 

401, 696 N.E.2d 436, and modifying the earlier rule of State v. Boston (1989), 46 

Ohio St.3d 108, 115, 545 N.E.2d 1220. The Dever Court found “[t]he trial court 

should consider the circumstances surrounding the making of the hearsay statement. 

If the trial court finds * * * that the child’s statements were inappropriately influenced 

by another, then those statements would not have been made for the purpose of 

diagnosis or treatment.” Id. at 410. The trial court’s inquiry will necessarily depend 

on the facts of each case. Id. The trial court “may consider whether the child’s 

statement was in response to a suggestive or leading question * * * and any other 

factor which would affect the reliability of the statements (such as [a] bitter custody 

battle* * *). If no such factors exist, the evidence should be admitted. The credibility 

of the statements would then be for the jury to evaluate in its role as factfinder.” Id. 

(A) Testimony of Ms. Soles.

{81} At trial Ms. Soles testified that she woke up on March 28, 2008 and 

went into the kitchen to prepare breakfast. While she was in the kitchen, she heard 

her daughter’s voice in the next room, speaking to Appellant: “‘Earl, you licked my 

peepee. Earl, you licked my butt.’” When she heard what her daughter said, Ms. 

Soles came into the living room and asked “‘What did you say?’ And Earl interjected 
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and said. ‘Oh, she means I wiped her butt.’” (Tr. Vol. I, pp.166-167.) Ms. Soles said 

that Appellant claimed the child had had an accident and that he had cleaned her up, 

but not changed her underwear. She also said that while Appellant was talking to 

her, he was also collecting his things and left almost immediately. (Tr. Vol. I, p. 169.) 

Ms. Soles was then asked by the prosecutor whether M.S. spoke with her after 

Appellant left and whether she had asked her daughter questions or if the child had 

volunteered information. Defense counsel objected generally “there’s no foundation 

for this testimony at this time” and was overruled. (Tr. Vol. I, pp. 169-170.) 

{82} Ms. Soles continued as instructed. She testified that when Appellant 

left M.S. came into the kitchen with her. While in the kitchen Ms. Soles asked: “‘M.S., 

did you poop the bed last night?’” to which the child replied, “‘No, Mommy, I didn’t 

poop the bed.’” (Tr. Vol I, p. 169.) Ms. Soles’ testimony continued: 

{83} “* * * ‘Well, what happened?’ ‘Earl got in my bed, Mommy, and under 

my covers and he tickled me.’ ‘Okay.’ ‘Then Aiden woke up, Mommy.’ Aiden was 

my friend’s son. ‘And Aiden woke up and he wouldn’t go back to sleep and he 

wouldn’t be quiet and Earl told him to be quiet and he didn’t. So Earl took me out of 

my bed.’ My little girl had a tiny bruise above her eye. And I said, ‘What happened to 

your eye?’ ‘When he took me out of bed, he bumped it on the head – the bedpost.’ 

‘What happened?’ ‘He took me in your room, Mommy.’ I said, “Did you sleep there?’ 

‘No, Mommy. Earl took my pants off then he took my panties off and then he licked 

my peepee and he licked my butt.” 

{84} “* * * 
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{85} “And then he took her back to her bed.” (Tr. Vol I, p. 170.) 

{86} After the preliminary objection to foundation, no hearsay objection was 

made by counsel to this testimony concerning M.S.’s statements on the morning of 

March 28, 2008 and the subsequent behavioral changes Ms. Soles observed. (Tr. 

Vol. I pp. 169-170, 181.) As such, Appellant has waived all but plain error with regard 

to the court’s decision to allow these statements. In the context of the extended 

period of excitement experienced by a child and a young child’s lack of capacity for 

“reason and reflection,” statements made spontaneously upon waking, mere hours 

after the conduct described, are well within the court’s discretion to allow under 

Evid.R. 803(2). State v. Ashcroft (1998), Butler County App. No. CA 97-11-217; 

Wallace, Humphries, etc. supra. M.S.’s initial statement was unprompted, and her 

mother’s subsequent open ended questioning does not appear to be inappropriately 

suggestive. Wallace, supra. Questions of weight and credibility were for the jury to 

settle. The trial court’s decision to allow the testimony was not an abuse of 

discretion, nor does it rise to the level of plain error. 

(B) Testimony of Dr. McPherson.

{87} Appellant identifies several statements reported to have been made by 

M.S. in response to questioning by Dr. McPherson and a statement reported by Dr. 

McPherson as having been made by Ms. Soles as part of M.S.’s medical history. No 

objection was made to the statements during the state’s direct questioning of Dr. 

McPherson. Defense counsel did object to the statement on redirect, and the 
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objection was overruled. Due to the objection and the difference in declarant the 

statements must be evaluated under separate rules. 

(1) Statements Made by M.S.

{88} Dr. McPherson’s observation of M.S. and discussion of her history with 

Ms. Soles were for the purpose of diagnosis and designed to elicit relevant 

information. Dr. McPherson’s testimony reveals both consciousness of the need to 

identify coaching and sensitivity to a child’s susceptibility to suggestive questioning. 

(McPherson Depo., pp. 12-14, 18-21, 28-31.) Unlike the circumstances in Boston, 

supra, there was no custody battle and no separate motivation to drive a particular 

diagnosis. Appellant had, until the incident, by all accounts been Ms. Soles’s good 

friend, often present in the home and a frequent babysitter. As described above, 

statements made for the purpose of medical diagnosis are an exception to the 

hearsay rule, and “physicians, by virtue of their training and experience, are quite 

competent to determine whether particular information given to them in the course of 

a professional evaluation is ‘reasonably pertinent to diagnosis or treatment’ and are 

not prone to rely upon inaccurate or false data in making a diagnosis or in prescribing 

a course of treatment.” King v. People (Colo.1990), 785 P.2d 596 (as quoted by 

State v. Muttart, 116 Ohio St.3d 5, 13, 2007-Ohio-5267, 875 N.E.2d 944). In Muttart 

the Ohio Supreme Court elaborated: 

{89} “We are aware, of course, of the possibility that parents of abused

children may give false information to a physician, including denials or deliberate 

misidentifications, see United States v. Yazzie (C.A.9, 1995), 59 F.3d 807, 813, and 
-43-

that a victim might deny abuse to the physician, particularly when in the company of 

the abuser. Such falsehoods may be a survival strategy or may reflect a complex 

psychodynamic or phenomena that untrained persons may not understand fully. 

Although physicians and psychotherapists are not infallible when diagnosing abuse, 

we believe that their education, training, experience, and expertise make them at 

least as well equipped as judges to detect and consider those possibilities.” Id. at 

¶42. 

{90} Under the principles in Muttart the trial court’s decision to admit Dr. 

McPherson’s testimony concerning M.S.’s statements was appropriate. Once 

admitted, the weight was a question for the jury. The court’s decision to allow Dr. 

McPherson’s relevant and probative testimony was not a violation of the 

confrontation clause of the Sixth Amendment or the Ohio Rules of Evidence. As 

such, it did not rise to the level of plain error. 

(2) Statements Made by Ms. Soles.

{91} Appellant points to a single instance of testimony, on page 40 of the 

deposition, where on redirect the prosecutor asks Dr. McPherson to elaborate as to 

information he relied on when evaluating M.S. and the section of his report titled 

“Review of Symptoms.” Appellant argues the doctor’s response to the question was 

hearsay within hearsay. (McPherson Depo., p. 40). During the deposition, defense 

counsel objected that the statement was hearsay within hearsay but the objection 

was overruled. What Appellant’s argument does not discuss are the various points in 

the prior seventeen pages of the deposition where defense counsel cross-examined 
-44-

Dr. McPherson on his training, his methodology, and the information he relied on in 

evaluating M.S.’s condition. Defense counsel specifically elicited both M.S.’s 

statements and her mother’s statements, resulting in the following testimony: “when I 

spoke with - - during our initial eval - - initial talking with mom, I was informed that the 

patient told mom, ‘Earl, you licked my butt,’ while Earl was present. And then Earl 

responded by saying, “I wiped your butt.’” (McPherson Depo., p. 22.) 

{92} With regard to the confrontation clause and the admissibility of 

otherwise inadmissible hearsay the threshold question is whether the hearsay at 

issue testimonial or non-testimonial hearsay. “Where nontestimonial hearsay is at 

issue, it is wholly consistent with the Framers’ design to afford the States flexibility in 

their development of hearsay law * * * [w]here testimonial evidence is at issue, 

however, the Sixth Amendment demands what the common law required: 

unavailability and a prior opportunity for cross-examination.” Crawford v. Washington

(2004), 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177, 203. “While the Court 

declined to settle on a single formulation, it noted that, ‘[w]hatever else the term 

[testimonial] covers, it applies [ ] to prior testimony at a preliminary hearing, before a 

grand jury, or at a former trial, and to police interrogations. These are the modern 

abuses at which the Confrontation Clause was directed.’” Horton v. Allen (C.A.1, 

2004), 370 F.3d 75, 84, citing and quoting Crawford, supra. The testimony at issue 

here is the statement of a minor made to her mother and reported to a physician for 

the purposes of diagnosis. It is nontestimonial in nature and does not raise a Sixth 
-45-

Amendment issue. The testimony is instead subject to Ohio common law concerning 

hearsay. 

{93} Under the common law, where, as here, a party chooses to open the 

door to otherwise inadmissible testimony, it is within the court’s discretion to allow the 

other party to elicit additional clarifying testimony on the same issue. “‘Under the rule 

of curative admissibility, or the “opening the door” doctrine, the introduction of 

inadmissible evidence by one party allows an opponent, in the court's discretion, to 

introduce evidence on the same issue to rebut any false impression that might have 

resulted from the earlier admission.’” State v. Dunivant, 5th Dist. No. 2003CA00175, 

2005-Ohio-1497, ¶12 (See, also, United States v. Moody (C.A.6, 1967), 371 F.2d 

688, 693, “’With the door opened this widely in favor of [defendant], we cannot say 

that the District Judge's rulings in favor of appellee's proffered hearsay on the same 

subject was an abuse of judicial discretion or constituted reversible error;’” and State 

v. Croom (Jan. 18, 1996), 8th Dist. No. 67135, at *17. “Invited error would preclude a 

defense counsel who induces hearsay evidence on cross-examination from 

precluding further hearsay testimony on re-direct examination.”) 

{94} The doctor’s statement on re-direct, placed in context of defense 

counsel’s cross-examination, was within the court’s discretion to allow as invited 

error, described above. The fact that the statement was hearsay during redirect 

could be cured by defense counsel’s prior decision to address the issue on cross. 

The trial court’s decision to allow the testimony was not unreasonable, arbitrary, or 

unconscionable and therefore was not an abuse of discretion. 
-46-

{95} Appellant’s fourth assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 6

{96} “DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW 

SUCH THAT REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT FAILED 

TO PROPERLY INSTRUCT THE JURY.” 

{97} Appellant’s sixth assignment of error rests on a single abbreviated 

quote plucked from sixteen (16) pages of jury instructions. (Tr. Vol. II, pp. 402-418.) 

Appellant argues that because the words “beyond a reasonable doubt” do not appear 

in Appellant’s carefully selected quote the trial court failed to properly instruct the jury. 

On review, “[a] jury instruction must be viewed in the context of the overall charge 

rather than in isolation.” State v. Lewis (1993), 67 Ohio St.3d 200, 203, 616 N.E.2d 

921, citing State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772. 

Appellant’s argument fails, as within these sixteen pages of jury instructions, 

recorded by the court and provided to the jury during deliberations, there appears a 

full page of instruction as to the meaning of reasonable doubt and the role of 

reasonable doubt in the state’s burden of proof. (Tr. Vol. II, pp. 403-404.) The court 

explained the elements of the crime charged. The court then instructed the jury as to 

the treatment of evidence and testimony before re-stating the state’s burden: 

“[b]efore you can find the Defendant guilty, you must find beyond a reasonable doubt 

that [continued to re-list the elements and define terms].” (Tr. Vol. II, pp.409-410.) 

The trial court concluded with the quote selected by Appellant “[i]f you find that the 

State has proven all the elements of the charge of rape, including that the victim was 
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less than thirteen years of age* * *.” (Tr. Vol. II, p. 410.) Appellant’s argument is 

wholly without merit. The jury was properly instructed as to the state’s burden and 

the requirement of proof beyond a reasonable doubt. Appellant’s sixth assignment of 

error is overruled. 

ASSIGNMENT OF ERROR NO. 7

{98} “DEFENDANT/APPELLANT’S CONVICTION IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE.” 

ASSIGNMENT OF ERROR NO. 8

{99} “THE STATE OF OHIO FAILED TO PRODUCE SUFFICIENT 

EVIDENCE AS TO THE COMMISSION OF THE SEX ACT OF CUNNILINGUS.” 

{100} Appellant herein challenges both the sufficiency and the manifest 

weight of the evidence. To determine whether sufficient evidence exists to support a 

conviction, the reviewing court must determine “whether, after viewing the evidence 

in a light most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime proven beyond a reasonable doubt.” State v. 

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. In 

determining whether a criminal judgment is against the manifest weight of the 

evidence, this Court acts as a “thirteenth juror” to determine whether, “the jury clearly 

lost its way and created such a manifest miscarriage of justice that the conviction 

must be reversed and a new trial ordered.” State v. Thompkins (1997), 78 Ohio St.3d 

380, 387, 678 N.E.2d 541, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 

485 N.E.2d 717. The verdict is not against the weight of the evidence when there is 
-48-

evidence which, if believed, will convince the average person of the accused’s guilt 

beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 172, 383 

N.E.2d 132. 

{101} “A verdict that is supported by sufficient evidence may still be against 

the manifest weight of the evidence. ‘Weight of the evidence concerns “the 

inclination of the greater amount of credible evidence, offered in a trial, to support 

one side of the issue rather than the other. It indicates clearly to the jury that the 

party having the burden of proof will be entitled to their verdict, if, on weighing the 

evidence in their minds, they shall find the greater amount of credible evidence

sustains the issue which is to be established before them. Weight is not a question 

of mathematics, but depends on its effect in inducing belief.”’ (Emphasis sic.)” 

(Internal citations omitted.) State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio3282, ¶24, quoting Thompkins, supra, at 387. The weight to be given the evidence 

and the credibility of the witnesses are primarily for the trier of fact to determine. 

State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the 

syllabus. 

{102} The state’s case is supported by the testimony of thirteen witnesses; 

the defense called a single witness. Among the state’s thirteen witnesses were both 

of Appellant’s employers, who had no relationship with the victim or the victim’s 

mother and no incentive to harm Appellant, whom they both describe as a good 

worker. The state’s most damning piece of evidence is readily identifiable: 

Appellant’s admission via telephone to his friend and sometimes-employer Bob Lalley 
-49-

that he “did something [he] could go to prison for,” he “touched a little girl 

inappropriately.” (Tr. Vol. II, p. 292.) Appellant’s admission is compounded by his 

own behavior: applying for a transfer, accepting the check for expenses, then 

quitting his regular job without returning the check and leaving the state. None of the 

errors alleged by Appellant concerning the videotaped deposition, statements made 

by the prosecutor, or by other witnesses has the same effect. 

{103} With regard to the sex act, it is the responsibility of the jury to resolve 

questions of fact and to determine the credibility and weight of the testimony of the 

young witness. DeHass, supra; State v. McConnell, 2nd Dist. No. 19993, 2004-Ohio4263. M.S.’s statements to Appellant, overheard by her mother, statements made 

directly to her mother, and statements to Dr. McPherson were admissible as excited 

utterances and statements made for medical diagnosis. M.S.’s reported statements 

and her testimony in the deposition are consistent. When asked by the doctor where 

Appellant licked her, the child placed her hand in her underwear to show him. M.S. 

was equally able to show where, on anatomically correct drawings, contact occurred. 

Courts readily accept the fact that young children use a variety of words to describe 

their genitals. See, e.g. McConnell, supra; In re D.M., 158 Ohio App.3d 780, 2004-

Ohio-585; Dever, supra. The jury was instructed as to the elements of the offense 

and the findings necessary to a verdict, and the jury was polled at the request of 

defense counsel. The jury had before it evidence sufficient to support its conclusion 

that prohibited contact had occurred. The evidence in the record does not support a 

conclusion that the jury lost its way in believing the state’s version of the events at 
-50-

issue in this case. Accordingly, Appellant’s seventh and eighth assignments of error 

are overruled. 

ASSIGNMENT OF ERROR NO. 9

{104} “DEFENDANT/APPELLANT WAS DENIED HIS CONSTITUTIONAL 

RIGHT TO A FAIR TRIAL DUE TO THE CUMULATIVE ERRORS IN THESE 

PROCEEDINGS.” 

{105} Appellant contends that each of the errors identified in his preceding 

assignments are reversible, but that even if they were individually found harmless 

their cumulative effect deprived him of a fair trial. However, errors do not become 

prejudicial “by sheer weight of numbers.” State v. Frazier, 115 Ohio St.3d 139, 2007-

Ohio-5048, 873 N.E.2d 1263, ¶241. Although cumulative error may “be found when 

the effect of multiple errors * * * acts to deprive the defendant of his constitutional 

right to a fair trial * * * an assignment of error that simply intones the phrase 

‘cumulative error’ but offers no analysis or argument constitutes an assignment of 

error without substance.” State v. Scott, 7th Dist. No. 07 MA 152, 2009-Ohio-4961, 

¶92–93 (citing State v. Garner (1995), 74 Ohio St.3d 49, 656 N.E.2d 150 and State v. 

Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150). Appellant offers no 

argument or analysis in his brief. 

{106} Although some statements made in closing argument concerning 

Appellant’s pre-arrest silence were error, Appellant has failed to show prejudice 

resulting from the error. Appellant’s six other assignments, which frequently 

misrepresent the record, fail to show error and are equally without merit. Even if 
-51-

errors could become prejudicial by sheer weight of numbers, such numbers do not 

exist here. There is nothing in the record to suggest that, but for the fact that the jury 

was told Appellant failed, pre-arrest, to assert his innocence to the police, the jury 

would have acquitted him. Absent other error there is no cumulative effect that 

worked to deprive Appellant of his right to a fair trial. 

{107} Appellant’s ninth assignment of error is without merit and is overruled. 

CONCLUSION

{108} Appellant’s arguments that his Fifth Amendment, Sixth Amendment, 

and due process rights were violated are without merit. Similarly, his allegations of 

prejudicial misconduct, abuse of discretion, evidentiary violations, failure to properly 

instruct the jury, and cumulative error are equally without merit. Appellant’s 

conviction was based upon sufficient evidence and not against the manifest weight of 

the evidence. Appellant’s nine assignments of error are without merit and overruled. 

The judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.