[Cite as State v. Jackson, 2022-Ohio-2562.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

 Plaintiff-Appellee,

 vs.

LARRY JACKSON, JR.,

 Defendant-Appellant.

:

:

:

:

:

APPEAL NO. C-210466

TRIAL NO. B-2000335

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 27, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and Elizabeth Conklin, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

2

MYERS, Presiding Judge.

{¶1} Defendant-appellant Larry Jackson, Jr., appeals from the trial court’s 

entry convicting him, following a bench trial, of four counts of rape. In this appeal, 

Jackson challenges the trial court’s denial of his motion to suppress, the performance 

of his trial counsel, the trial court’s granting of the state’s motion to amend the 

indictment, and the sufficiency and the weight of the evidence supporting his 

convictions. 

{¶2} Finding the assignments of error raised by Jackson to be without merit, 

we affirm the trial court’s judgment. 

Factual and Procedural Background

{¶3} In August 2019, K.B., who was 12 years old at the time, disclosed to a 

family member that Jackson, who was her cousin, had committed various sexual 

offenses against her several years earlier. The offenses occurred while K.B. and 

Jackson were both at the home of her great-grandmother (who was also Jackson’s 

grandmother) Linda Coleman. 

{¶4} After learning of K.B.’s allegations, Jackson voluntarily went to the 

police station to speak with Cincinnati Police Detective Aaron Roach. Detective Roach 

read Jackson his Miranda rights prior to interviewing him. Jackson told Detective 

Roach that he stayed at Coleman’s home for a short period of time several years earlier, 

but that he was very seldom at the house during that time, and that Coleman let him

sleep in her bedroom while he stayed there. Jackson was not clear on the exact time 

frame in which he lived with Coleman, but believed it was in 2015 or 2016. When 

asked about K.B.’s allegations, Jackson adamantly denied them. 

{¶5} At the conclusion of the interview, Jackson agreed to take a polygraph 

examination. Both the examination and pre- and post-examination interviews were
OHIO FIRST DISTRICT COURT OF APPEALS

3

conducted by Officer Edwin Rivera. During the post-examination interview, Jackson 

initially denied all allegations, as he had during the pre-examination interview and the 

polygraph examination itself. But he later stated that “I touched her but I never had 

sex with her,” and he admitted to touching K.B.’s bottom. After Officer Rivera 

continued to push back and to challenge Jackson’s statements, he admitted to having 

oral sex with K.B. 

{¶6} In January 2020, Jackson was indicted on four counts of rape in 

violation of R.C. 2907.02(A)(1)(b), specifically two counts of vaginal intercourse, one 

count of fellatio, and one count of digital penetration. The indictment alleged that the 

offenses occurred between April 1, 2015, and October 1, 2015, and that victim K.B. was 

less than ten years of age when the offenses were committed. 

{¶7} Prior to trial, Jackson filed a “motion in limine/motion to suppress.” He 

sought an order prohibiting any reference to the fact that he had taken a polygraph 

examination, to the results of the polygraph examination, and to any statements made 

during the polygraph examination. Jackson filed a supplemental motion to suppress 

arguing that he was not properly Mirandized and that his confession was involuntary. 

Following a hearing, the trial court denied Jackson’s motion to suppress. But it 

granted the motion in limine in part and prohibited any mention of the polygraph 

examination. 

{¶8} At trial, K.B.’s grandmother Lena Burnett (who was Coleman’s

daughter)testified that she has cared for K.B. and her younger siblings for years. From 

April 2015 to October 2015, the time period specified in the indictment, Burnett took 

K.B. and her siblings to the home of K.B.’s great-grandmother Linda Coleman so that 

Coleman could babysit them before and after school. She testified that at some point 

during that period of time, Jackson lived with Coleman for a two-week period. 

{¶9} Burnett testified that K.B. was in the third grade when these offenses 

occurred. She initially stated that K.B. began third grade in August 2015. But after 
OHIO FIRST DISTRICT COURT OF APPEALS

4

looking at K.B.’s medical records, she recalled that K.B. had repeated kindergarten 

because of a childhood illness and in fact had started second grade, not third, in August 

2015. 

{¶10} After K.B. testified that she was born on August 6, 2007, and that she 

started third grade in the year 2016, the state requested an in-chambers on the record

conference. It informed the court that it now anticipated that K.B.’s testimony would 

indicate that the offenses occurred in 2016, rather than 2015, stating “[K.B.], I 

anticipate, is going to testify that any sexual conduct occurred in the early part of third 

grade, which would mean it was 2016.” The state asserted, “The indictment was

processed in relation to what Jackson says in his interview about the dates. So there 

is going to be a discrepancy between when [K.B.] says it happened and when Jackson 

says it happened.” It made a motion to amend the indictment to include the time 

period of April 1, 2016, through October 1, 2016, in addition to the time period 

originally specified in the indictment. Defense counsel argued that the motion was 

premature because K.B. had yet to testify about the time frame in which the offenses 

occurred. The trial court elected to hold the motion in abeyance.

{¶11} K.B.’s testimony continued following the in-chambers conference. She 

stated that Jackson had engaged in sexual conduct with her three times when she was 

nine years old and going into the third grade, all incidents occurring when they were 

both at her great-grandmother Linda Coleman’s house and she had been left home 

alone while Coleman and her siblings went to the store. During the first incident of 

sexual conduct with Jackson, K.B. testified that he called her into Coleman’s bedroom, 

pulled down her pants, and put his finger in her vagina. During both the second and 

third incidents, K.B. pretended to be asleep while Jackson put his penis inside her 

vagina. K.B. testified that Jackson never put his penis anywhere else inside her body. 

K.B. did not tell anyone what Jackson had done to her until August 2019, which was 

approximately three years after the offenses occurred. 
OHIO FIRST DISTRICT COURT OF APPEALS

5

{¶12} To help her refresh her recollection of Jackson’s actions, K.B. was shown

a letter that she had written in August 2019 describing what Jackson had done to her. 

After twice reading the letter, she testified that during one of the incidents of sexual 

conduct, Jackson told her to open her mouth, and that after she did so, he squirted 

something into her mouth. 

{¶13} K.B. also testified about her interview at the Cincinnati Children’s 

Hospital Mayerson Center. She acknowledged that she repeatedly stated during the 

interview that she had a bad memory. She also told the interviewer that Jackson took 

off her clothes, with the exception of her bra and underwear, and touched her chest 

under her bra. 

{¶14} Tracy Colliers, a social worker at Cincinnati Children’s Hospital’s 

Mayerson Center, testified that she had conducted a diagnostic interview of K.B. for 

purposes of medical diagnosis and treatment. The interview was recorded and played 

for the court. 

{¶15} Officer Edwin Rivera testified about his interview of Jackson on January 

15, 2020. A video of the interview was admitted into evidence and a portion of it was

played for the court. Rivera’s interview of Jackson, which occurred immediately after 

the polygraph examination was administered, lasted approximately 90 minutes. It

included Jackson’s initial denials of engaging in sexual conduct with K.B., and then 

his admission that he had touched K.B.’s bottom but had not engaged in sex with her. 

Upon extensive challenging of his statement by Officer Rivera, Jackson subsequently 

admitted to engaging in oral sex with K.B. Jackson told Officer Rivera that K.B. was 

alone in bed when he got home in the middle of the night, and that the other children 

were in the living room. He told Officer Rivera that “she put her mouth on there and 

put the tip on it, and then she put her hand on it. And it was like three, five seconds, 

and I just told her to get off.” Jackson stated that “it just happened,” and that he left 
OHIO FIRST DISTRICT COURT OF APPEALS

6

afterwards. He denied ejaculating in K.B.’s mouth, and he maintained that any sexual 

conduct with K.B. only happened one time.

{¶16} Officer Rivera described the conditions of the interview, stating that he 

sat less than a foot from Jackson in Jackson’s personal space, that Jackson was not 

given food or water during the approximately three-hour interview, and that Jackson 

was not given, nor had he asked for, access to the bathroom. 

{¶17} At the close of the state’s case, the trial court revisited the state’s motion 

to amend the indictment. Jackson objected to the amendment, arguing that if it was 

granted, he would no longer be able to present an alibi defense. The trial court granted 

the motion to amend, recognizing that Crim.R. 7(D) permits the liberal amendment of 

indictments. It stated that:

This doesn’t change the essential elements as the prosecutor has 

pointed out. That would be a different matter, if it changed the age of 

the victim because that is an essential element, but this is more of the 

notice of the time. 

Furthermore, it wasn’t so much—I mean, I think even from the start of 

the criminal investigation, even the defendant knew about, at least 

roughly, what period of time they were looking at because it was the 

period of time he was living with his grandmother, the victim’s greatgrandmother. 

I don’t believe that it rises to the level of prejudice because it’s still 

talking about a period of time when she was living there, and that’s the 

period of time that both the witnesses, as well as the State’s case, is 

resting on, and I don’t find that rises to the level of prejudice. 

And, furthermore, this could simply be a scrivener’s error, substituting 

’15 for ’16 when it was put together. But the victim and the other 

witnesses seem to be pretty clear about the age, or, at least, what grade 
OHIO FIRST DISTRICT COURT OF APPEALS

7

she was going into at the time this happened. Frankly, she seemed 

pretty definitive about that. 

The indictment was amended to include the time period of April 1 to October 1 in both 

the calendar years 2015 and 2016. 

{¶18} Detective Roach was called as a witness by Jackson. He testified that he 

began investigating this case in August of 2019 after K.B.’s family called to report her 

allegations. Detective Roach stated that the dates on the incident report for these 

offenses were different than the dates originally specified in the indictment. The 

incident report listed the dates of the offenses as September 2016 through May 2017, 

the time period when K.B. was in third grade. Detective Roach first explained that he 

determined the dates used in the indictment based on information obtained from 

Jackson during the post-polygraph-examination interview regarding when Jackson

lived at his grandmother’s house. He then clarified that the dates in the indictment 

“came from a bunch of different things. It came from—I mean it wasn’t just from 

[Jackson’s statements] but that did play a part of it.” When asked what else played a 

part, Detective Roach responded:

I mean, there were multiple parts when we were trying to narrow down 

the time frame, how old she was; what grade she was in; you know, the 

plethora of different times that he said he was there. 

You know, the years had changed that he said that he was there. And 

then from talking to Grandmother about when she would allow the kids 

to be there throughout the year and after school, which was, you know, 

a large time frame, and then also from the victim’s testimony, or the 

victim’s Mayerson interview.

{¶19} Detective Roach also discussed his January 2020 interview with 

Jackson, and he stated that Jackson was adamant that he had not committed the acts 

he was accused of. 
OHIO FIRST DISTRICT COURT OF APPEALS

8

{¶20} Linda Coleman testified that Jackson never lived with her or stayed with

her. She explained that there was a period of time where she watched K.B. and K.B.’s 

siblings before and after school, but that she was unaware of a time that Jackson was 

at her home while K.B. was there after school. Coleman could not recall a time when 

she left K.B. at home while she took the other siblings to the store. 

{¶21} Jackson testified that he voluntarily went to the police station in 

January 2020 to speak with Detective Roach to clear his name. He agreed to take the 

polygraph examination for the same reason. Jackson stated that he felt forced into 

admitting that he engaged in sexual conduct with K.B. after he was interviewed for so 

many hours, during which he repeatedly denied K.B.’s allegations. According to 

Jackson, he feared for his life, did not believe that he could leave the police station, 

and felt pressured to confess. He told the court that he graduated from high school, 

and that he had been given an individualized education plan while in high school. 

{¶22} Jackson testified that there was a period of time in 2015 when he stayed 

over at Coleman’s house after he had a falling-out with his girlfriend. During that time, 

he worked long hours for a moving company and rarely saw K.B. or her siblings, other 

than occasionally in the mornings when he was getting ready to go to work and they 

had been dropped off before school. According to Jackson, he never stayed the night

at Coleman’s when K.B. was there, and he was never alone with K.B. Jackson denied 

all sexual conduct with K.B. 

{¶23} The trial court found Jackson guilty of all four counts of rape. It 

imposed a sentence of 15 years to life imprisonment on each offense and made the 

sentences concurrent. 
OHIO FIRST DISTRICT COURT OF APPEALS

9

Denial of Motion to Suppress

{¶24} In his first two assignments of error, Jackson challenges the trial court’s 

denial of his motion to suppress. We consider these assignments together. 

a. Interviews, Motion to Suppress, and Court’s Ruling

{¶25} Jackson voluntarily went to the police station on January 15, 2020, to 

speak with Detective Roach. Prior to speaking with Jackson, Detective Roach verified 

that Jackson was not under the influence of any drugs or alcohol, had graduated from 

high school, and that he could read and write. He then read Jackson his rights, stating: 

Before we ask you any questions, you must understand your rights. You 

have the right to remain silent. Anything you say can be used against 

you in court. 

You have the right to talk to a lawyer for advice before we ask you any 

questions and to have him with you during your questioning. 

If you cannot afford a lawyer, one will be appointed for you before any 

questionings, if you wish.

If you decide to answer questions now without a lawyer present, you will 

still have the right to stop answering at any time. 

You also have the right to stop answering at any time until you talk to a 

lawyer.

Detective Roach then had Jackson explain what that recitation meant. Jackson stated, 

“Well, it means I have the right to talk, but if I had a lawyer present, it’d be—I don’t 

know.” Detective Roach clarified, stating that “If you want to talk to me, you can talk 

to me. If you want to stop talking to me—you can stop talking to me,” and that “we’re 

going to have a conversation. If you want to stop talking to me, you stop talking to 
OHIO FIRST DISTRICT COURT OF APPEALS

10

me.” Jackson then signed the waiver of rights form,

1 and he began to speak with 

Detective Roach. He denied the allegations against him. The waiver signed by Jackson 

was not admitted into evidence, and our record does not contain a copy of it. Nor was 

the videotape of this portion of the interview admitted into evidence or played for the 

court. The only evidence before this court is the transcript of the interview between 

Detective Roach and Jackson. 

{¶26} Jackson submitted to the polygraph examination with Officer Rivera 

immediately after his interview with Detective Roach. The videotape of this 

examination and subsequent interview with Officer Rivera was admitted into evidence 

and is part of the record on appeal. Prior to conducting the examination, Officer 

Rivera verified that Jackson had been read his rights and reminded him that those 

rights were still in effect. 

{¶27} When Officer Rivera began the post-polygraph-examination interview

with Jackson, he immediately confronted Jackson and told him that he failed the 

polygraph examination. The interview between Officer Rivera and Jackson remained

confrontational for the rest of the interview. Officer Rivera did not accept Jackson’s 

denial of misconduct, and he told Jackson on multiple occasions that he knew Jackson 

had done something and that Jackson needed to step up and admit it. He also

encouraged Jackson to tell the truth, repeatedly stating that he could see that Jackson 

was a good person, and that good people make mistakes. Jackson continued to deny 

K.B.’s allegations, and Officer Rivera continued to inform him that he had failed the 

polygraph examination. Officer Rivera told Jackson several times that Jackson knew 

what he had done was wrong and that Jackson needed to be honest about it. Jackson 

1 While we do not have a copy of the form in the record, this is how Jackson characterized it in his 

supplemental motion to suppress. The state in its appellate brief refers to it as a notification of 

rights form. The parties are referring to the same form. To avoid confusion, we refer to the form

in this opinion as a waiver of rights form. 
OHIO FIRST DISTRICT COURT OF APPEALS

11

eventually admitted he had touched K.B.’s bottom, although he maintained his denial 

of having sex with her. 

{¶28} Officer Rivera pressed Jackson for more information, repeatedly telling 

Jackson that he was not being truthful and that he had failed the polygraph 

examination. He told Jackson three times that Jackson had committed the actions he 

was accused of, and he encouraged Jackson to step up and be a man. Officer Rivera 

reiterated that everyone makes mistakes and that he wanted to help Jackson. He told 

Jackson that a 13-year-old girl would not make up the allegations that were involved

in this case. Officer Rivera continued to confront Jackson and refused to accept his 

denial of misconduct. Jackson eventually admitted to having oral sex with K.B. 

{¶29} Jackson filed a motion to suppress, arguing that he was not properly 

Mirandized and that his confession was involuntary. Following a hearing, the trial 

court stated that it would read the two transcripts that had been submitted to it during 

the hearing (which were the interviews of Jackson by Detective Roach and Officer 

Rivera). The court subsequently issued an entry denying Jackson’s motion to 

suppress. It found that Jackson was twice apprised of his Miranda rights, and that 

Jackson’s confession was voluntary under the totality of the circumstances. It further 

found that Officer Rivera did not make misrepresentations, promise leniency, or

engage in coercion.

b. Waiver of Miranda Rights/Voluntariness

{¶30} Jackson argues in his first assignment of error that the trial court erred 

in denying the motion to suppress where it failed to determine that the waiver of his 

Miranda rights was made knowingly, voluntarily, and intelligently. And in his second 

assignment of error, Jackson argues that the trial court violated his right to due 

process by denying his motion to suppress because his confession was coerced. In 
OHIO FIRST DISTRICT COURT OF APPEALS

12

considering Jackson’s arguments, we assume, without deciding, that he was in custody 

and that Miranda warnings were required. 

{¶31} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, 

¶ 8. We must accept the trial court’s factual findings if they are supported by 

competent, credible evidence, but we review de novo the trial court’s application of the 

law to those facts. Id.

{¶32} Both of Jackson’s arguments—that his Miranda waiver was not 

knowing, voluntary, and intelligent, and that his confession was not voluntary—are 

analyzed under a totality-of-the-circumstances test. State v. Durgan, 1st Dist. 

Hamilton No. C-170148, 2018-Ohio-2310, ¶ 21; State v. Eley, 77 Ohio St.3d 174, 178, 

672 N.E.2d 640 (1996). Under that test, we must “consider the totality of the 

circumstances, including the age, mentality, and prior criminal experience of the 

accused; the length, intensity, and frequency of interrogation; the existence of physical 

deprivation or mistreatment; and the existence of threat or inducement.” State v. 

Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 35, quoting State v. 

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus.

{¶33} The state must prove by a preponderance of the evidence that an 

accused made a knowing, voluntary, and intelligent waiver of her or his Miranda

rights. Durgan at ¶ 22. Absent evidence that an accused’s will was overborne or his 

capacity for self-determination was critically impaired because of coercive police 

conduct, a waiver of Miranda rights will be considered voluntary. Id. at ¶ 23. “Once 

it is determined that a suspect’s decision not to rely on his rights was uncoerced, that 

he at all times knew he could stand mute and request a lawyer, and that he was aware 

of the State’s intention to use his statements to secure a conviction, the analysis is 

complete and the waiver is valid as a matter of law.” Id., quoting State v. Dailey, 53 

Ohio St.3d 88, 91, 559 N.E.2d 459 (1990). 
OHIO FIRST DISTRICT COURT OF APPEALS

13

{¶34} The state must also prove by a preponderance of the evidence that a 

confession was voluntary. Durgan at ¶ 24. “Coercive police activity is necessary to a 

finding that a confession was involuntary within the meaning of the Due Process 

Clause.” Id. 

{¶35} While the trial court did not specifically find that Jackson’s waiver of his 

Miranda rights was made knowingly, voluntarily, and intelligently, we find that 

determination implicit in the court’s holding. And the record supports that finding. 

After verifying that Jackson could read and write and reading Jackson his rights, 

Detective Roach attempted to ensure that Jackson understood them, and he reiterated

to Jackson that Jackson could stop talking at any time. Jackson signed a waiver of 

rights form. Officer Roach made no threats to get Jackson to waive his rights. After 

signing the waiver form, Jackson immediately and willingly began to talk to Detective 

Roach about K.B.’s allegations and to deny those allegations. 

{¶36} We note that while Jackson signed the waiver of rights form, no express 

waiver, either oral or written, was explicitly required. State v. Williams, 2d Dist. 

Montgomery No. 28648, 2021-Ohio-1340, ¶ 55. “An express written or oral statement 

of waiver of the right to remain silent or of the right to counsel is usually strong proof 

of the validity of that waiver, but is not inevitably either necessary or sufficient to 

establish waiver.” State v. Winfrey, 1st Dist. Hamilton No. C-070490, 2008-Ohio3160, ¶ 24, quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 

L.Ed.2d 286 (1979); State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 

279, ¶ 11. Rather, a waiver may be inferred “from the suspect’s behavior, viewed in 

light of all the surrounding circumstances.” Lather at ¶ 11, quoting State v. Murphy, 

91 Ohio St.3d 516, 518, 747 N.E.2d 765 (2001). One such circumstance in which a 

waiver can be inferred is where a defendant proceeds to speak after having been 

advised of her or his rights and indicating an understanding of them. Williams at ¶ 

55. 
OHIO FIRST DISTRICT COURT OF APPEALS

14

{¶37} Here, not only did Jackson sign the waiver form, but he proceeded to 

speak to Detective Roach immediately after discussing the rights and signing the 

waiver. Because Jackson’s decision not to invoke his rights was uncoerced and

because he was aware that he could stop talking and request a lawyer at any time, and 

that anything he said could be used against him in court, the waiver of his rights was 

valid as a matter of law. See Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio2310, at ¶ 23.

{¶38} In considering the totality of the circumstances regarding whether the 

confession was voluntary, the trial court found that Officer Rivera told Jackson he 

could help himself by admitting his wrongdoing, implored Jackson to step up and be 

a man, and appealed to Jackson’s humanity by noting that people make mistakes. It 

further found that Officer Rivera did not make misrepresentations, promise leniency,

or engage in coercion.

{¶39} These findings were supported by the record. Officer Rivera engaged in 

very intense questioning of Jackson and refused to accept Jackson’s denial of 

misconduct. The questioning involved repeated encouragement of Jackson to tell the

truth and offers to help him. It also involved Officer Rivera repeatedly (in excess of 

ten times) informing Jackson that he had failed the polygraph examination and stating

that he knew Jackson had committed the actions he was being accused of. While the

questioning was confrontational, Officer Rivera did not coerce, threaten, or mistreat

Jackson. 

{¶40} “Admonitions to tell the truth are uncoercive in nature” and are 

permissible. State v. Carovillano, 1st Dist. Hamilton Nos. C-060658 and C-060659, 

2007-Ohio-5459, ¶ 25. Nor did Officer Rivera’s offer to help Jackson result in 

coercion. We have held that “promises that the defendant[’]s ‘cooperation’ would be 

considered in the disposition of his case, or that it would be in the defendant’s ‘best 

interest’ to tell the ‘real story,’ did not negate the voluntary nature of a confession.” 
OHIO FIRST DISTRICT COURT OF APPEALS

15

State v. Cedeno, 192 Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 20 (1st

Dist.). Further, “suggestions of leniency, promises that a defendant’s cooperation will 

be considered in the disposition of charges, and statements that a confession will be 

helpful do not invalidate an otherwise legal confession.” Carovillano at ¶ 25. 

{¶41} In this case, Officer Rivera’s statements during the interview were 

intense and confrontational, but were not coercive and did not render Jackson’s 

confession involuntary. See Cedeno at ¶ 20. Officer Rivera’s repeated admonitions to 

him that he failed the polygraph examination, without also telling him that the results 

of the examination were not admissible at trial, likewise did not render his confession 

involuntary. Police are not required to tell a suspect that polygraph results are 

inadmissible at trial. See State v. Lytle, 4th Dist. Ross No. 96CA2182, 1997 Ohio App.

LEXIS 921, *11 (Mar. 10, 1997). 

{¶42} Jackson additionally argues that his confession was coerced because of 

Officer Rivera’s use of the “Reid Technique” of interrogation. While Officer Rivera was 

briefly asked about the Reid School of Interviewing during his trial testimony, Jackson

did not raise this argument in his motion to suppress before the trial court and no 

evidence was presented on it at the suppression hearing. We do not address this 

argument on appeal, as we may “only consider evidence presented at the suppression 

hearing.” Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310, at ¶ 26 (the 

court declined to consider an argument about the “Reid Method” where the defendant 

had not raised the issue at the hearing on the motion to suppress). 

{¶43} Following our review of the record, we hold that Jackson made a 

knowing, voluntary, and intelligent waiver of his rights, and that his confession was 

not the result of coercion. The trial court did not err in denying Jackson’s motion to 

suppress, and the first and second assignments of error are overruled. 
OHIO FIRST DISTRICT COURT OF APPEALS

16

Amendment of Indictment

{¶44} For ease of our discussion, we consider Jackson’s fourth assignment of 

error out of order. In this assignment of error, Jackson contends that the trial court 

violated his constitutional right to due process when it granted the state’s motion to 

amend the indictment. 

{¶45} As discussed above, the indictment alleged that the offenses were 

committed between April 1, 2015, and October 1, 2015. The state had selected these 

dates in part based on K.B.’s statement that the offenses occurred when she was going 

into the third grade. Under the state’s calculation, K.B. had started the third grade in 

August of 2015. Trial testimony from both K.B. and Lena Burnett, however, indicated 

that K.B. actually started the third grade in August of 2016. 

{¶46} The state moved to amend the indictment to include the time period of 

April 1 to October 1 in both the calendar years 2015 and 2016. The trial court granted 

the motion over Jackson’s objection. It found that Jackson was not prejudiced by the

amendment because the amendment did not change the essential elements of the 

offenses and because Jackson was aware of the state’s allegation or theory that these 

crimes occurred during the period of time that he lived with Coleman.

{¶47} Because Jackson objected to the amendment of the indictment at the 

trial level, we review the trial court’s decision to permit the amendment for an abuse 

of discretion. State v. Svoboda, 2021-Ohio-4197, 180 N.E.3d 1277, ¶ 132 (1st Dist.). 

{¶48} The purpose of an indictment is to give notice to the accused. Id. at ¶ 

134. It should “apprise the defendant of that which he may expect to meet and be 

required to answer.” Id., quoting State v. Horner, 126 Ohio St.3d 466, 2010-Ohio3830, 935 N.E.2d 26, ¶ 10. Pursuant to Crim.R. 7(D), “[t]he court may at any time 

before, during, or after a trial amend the indictment, information, complaint, or bill of 

particulars, in respect to any defect, imperfection, or omission in form or substance, 
OHIO FIRST DISTRICT COURT OF APPEALS

17

or of any variance with the evidence, provided no change is made in the name or 

identity of the crime charged.” (Emphasis added.)

{¶49} The amendment of the indictment in this case did not change the names

of the offenses. Prior to the amendment, Jackson was charged with four counts of 

rape. He was charged with the same offenses following the indictment. Nor did the 

amendment of the indictment change the identity of the offense. See Svoboda at ¶ 136 

(the amendment of the indictment from the time period January 1, 2008, to December 

31, 2008, to the time period August 1, 2011, to May 31, 2012, “did not change the 

identity of the charge or the nature of the conduct alleged”). The nature of the conduct 

that Jackson was alleged to have committed did not change, nor did the location where 

the offenses were alleged to have taken place. The victim of the offenses remained the

same, as the did the surrounding circumstances. 

{¶50} The state consistently proceeded under the theory that Jackson 

committed these offenses during the period of time that he lived with Coleman because

he had access to K.B. to commit the offenses during that time period, as she often

stayed at Coleman’s before and after school. The bill of particulars stated that: 

On or between April 1, 2015 and October 1, 2015, when Defendant was

living at Defendant’s grandmother Linda Coleman’s residence in the 

vicinity of 1702 Berkley Avenue, Cincinnati, Ohio, Defendant engaged 

in sexual conduct with K.B. on three separate occasions. On the first 

occasion, Defendant stuck Defendant’s finger in K.B.’s vagina and put 

Defendant’s penis in K.B.’s mouth. The other two occasions, Defendant 

inserted Defendant’s penis into K.B.’s vagina. K.B. was in third grade 

and 7-8 years of age at the time (date of birth is August 6, 2007).

{¶51} All parties in this case were focused on the time period that Jackson

lived with Coleman and not the specific chronological year in which the offenses 

occurred. While Jackson testified at trial that he lived with Coleman in the year 2015, 
OHIO FIRST DISTRICT COURT OF APPEALS

18

he was not as certain of that timing when he spoke with Detective Roach in January of 

2020. During that interview, he could not identify the specific year that he lived with 

Coleman, but stated that he thought it was either 2015 or 2016. At all times throughout 

this case, the reference point for Jackson for preparing alibi evidence and defending 

against the offenses with which he was charged was the period of time that he lived 

with Coleman. He had the opportunity to produce alibi evidence for this time period, 

if such evidence existed. And the record contains no evidence that it did. Accordingly, 

we are not persuaded by Jackson’s argument that the amendment impeded his ability 

to produce alibi evidence. And, even if he was only focused on 2015 prior to trial, the 

record is devoid of any evidence that he had an alibi for 2016. Further, he did not seek 

a continuance to address this. 

{¶52} The fact that the amendment occurred during the middle of the trial is 

troubling, as it did not leave Jackson time to “adjust his defense strategy accordingly.”

See Svoboda, 2021-Ohio-4197, 180 N.E.3d 1277, at ¶ 136 (where amendment was 

made over a year prior to trial, defendant had time to adjust defense strategy). 

Nonetheless, because the reference point for Jackson as to when the offenses were 

alleged to have occurred—the time period that he lived with Coleman—did not change, 

his defense strategy presumably would not have been altered, and he still had the 

ability long before trial to produce alibi evidence for that time period. And, Jackson 

does not argue that he did, in fact, have an alibi for 2016, nor did he seek a continuance

to obtain evidence of any alibi that might exist. 

{¶53} Because the amendment did not change the name or identity of the

offenses, we hold that the trial court did not abuse its discretion in granting the state’s 

motion to amend the indictment. The fourth assignment of error is overruled. 
OHIO FIRST DISTRICT COURT OF APPEALS

19

Ineffective Assistance

{¶54} In his third assignment of error, Jackson argues that the cumulative 

effect of defense counsel’s errors violated his right to the effective assistance of 

counsel.

{¶55} Trial counsel will not be considered ineffective unless counsel’s 

performance was deficient and caused actual prejudice to the defendant. Strickland 

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. 

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Trial counsel’s 

performance will only be deemed deficient if it fell below an objective standard of 

reasonableness. Strickland at 688; Bradley at 142. A defendant is only prejudiced by 

trial counsel’s performance if there is a reasonable probability that the outcome of the 

proceedings would have been different but for the deficient performance. Strickland

at 694; Bradley at 142.

{¶56} Jackson first argues that counsel was ineffective for failing to seek a 

continuance after the indictment was amended to change the dates of the offenses. He 

argues that he was entitled to a continuance under Crim.R. 7(D), and that counsel’s 

failure to request a continuance prohibited him from securing alibi evidence for the 

new dates in the indictment. Crim.R. 7(D) provides that if an amendment is made to 

the indictment to cure a variance between the indictment and the proof, the defendant 

is entitled “to a reasonable continuance, unless it clearly appears from the whole 

proceedings that the defendant has not been misled or prejudiced by the defect or 

variance in respect to which the amendment is made, or that the defendant’s rights 

will be fully protected by proceeding with the trial, or by a postponement thereof to a 

later day with the same or another jury.”

{¶57} We concluded in response to Jackson’s fourth assignment of error that 

the amendment to the indictment did not change the identity of the offenses and that
OHIO FIRST DISTRICT COURT OF APPEALS

20

the trial court did not abuse its discretion in granting the amendment. We also 

explained that the amendment did not change Jackson’s reference point for when 

these offenses were committed—at all times, Jackson’s reference point for preparing 

alibi evidence was the period of time that he lived with Coleman. While Jackson 

asserts that he could have obtained alibi evidence for the new dates in the indictment 

if counsel had requested a continuance, the record contains no evidence of an alibi. 

Where the allegations of ineffectiveness are based on facts outside the record, we are 

unable to determine on appeal whether ineffective assistance of counsel occurred. 

State v. Giuggio, 1st Dist. Hamilton No. C-170133, 2018-Ohio-2376, ¶ 10. 

{¶58} Jackson also contends that counsel was ineffective for arguing that his

confession was not voluntary because of his reduced mental capacity and then failing

to investigate the argument further and introduce evidence, such as school records, in

support of that claim. Again, Jackson’s allegations of ineffectiveness are based on

matters outside the record, and we cannot determine in this appeal whether counsel 

was ineffective on this ground. See id. 

{¶59} Jackson’s remaining contentions in support of his ineffective-assistance 

argument concern the testimony of Tracy Colliers, the social worker who interviewed 

K.B. at the Mayerson Center. He argues that counsel was ineffective for failing to 

object to the admission of Colliers’s videotaped interview with K.B. Prior to Colliers’s 

testimony, defense counsel made an oral motion in limine to exclude the video of 

Colliers’s interview with K.B. The trial court overruled the motion after finding that 

the interview was admissible under Evid.R. 803(4). Jackson argues that counsel was 

ineffective for failing to object to the admission of the interview because K.B.’s 

statements in the interview were not made for the purposes of medical diagnosis or 

treatment, were testimonial in nature, and were admitted in violation of the 

Confrontation Clause. 
OHIO FIRST DISTRICT COURT OF APPEALS

21

{¶60} The Confrontation Clause is found in the Sixth Amendment to the 

United States Constitution. It provides in relevant part that “[i]n all criminal 

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

against him.” In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 

L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation 

Clause prohibits the admission of “testimonial statements of a witness who did not 

appear at trial unless he was unavailable to testify, and the defendant had had a prior 

opportunity for cross-examination.” See State v. Craig, 110 Ohio St.3d 306, 2006-

Ohio-4571, 853 N.E.2d 621, ¶ 81. 

{¶61} Crawford only applies when the statements involved are testimonial. 

State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 59; State v. 

Williams, 2017-Ohio-8898, 101 N.E.3d 547, ¶ 10 (1st Dist.). So in order to determine 

whether K.B.’s statements violated the Confrontation Clause, we must first determine 

whether they were testimonial. This court has held that “[s]tatements made to medical 

personnel for the purpose of diagnosis or treatment are not testimonial under 

Crawford ‘because they are not even remotely related to the evils that the 

Confrontation Clause was designed to avoid.’ ” Williams at ¶ 11, citing Muttart at ¶ 

63. 

{¶62} In determining whether a statement was made for the purposes of 

medical diagnosis or treatment by a child to a medical or social worker professional in 

child-abuse cases, relevant factors to be considered include “(1) the nature of the 

questioning—whether the interviewer asked leading or suggestive questions; (2) 

whether the child had a reason to lie; (3) whether the child understood the need to tell 

the truth; (4) the age of the child at the time the statements were made; and (5) 

whether the child’s statements were consistent.” Id. at ¶ 11.

{¶63} Here, K.B. was in the sixth grade at the time of her interview with 

Colliers. She was not questioned in an overly leading or suggestive manner, she had 
OHIO FIRST DISTRICT COURT OF APPEALS

22

no motive to lie, she seemed to understand the need to be truthful, and she was 

consistent in her allegations that Jackson engaged in sexual acts with her. In reviewing 

the factors set forth above, we find that the trial court did not err in determining that 

K.B.’s statements were given for purposes of medical diagnosis or treatment. As such, 

they were not testimonial and their admission did not violate the Confrontation 

Clause. But even if the statements had been testimonial, we still would find no 

violation of Jackson’s right to confrontation because K.B. testified at trial. See id. at ¶

13. As this court has explained in multiple instances, there is no confrontation-clause 

violation where the child victim testifies at trial. Id.; State v. Lukacs, 188 Ohio App.3d 

597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 15 (1st Dist.).

{¶64} Having found no confrontation-clause violation, we turn to Jackson’s 

argument that Colliers’s interview of K.B. contained inadmissible hearsay and that the 

interview was not admissible under Evid.R. 803(4). 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 in the statement.” Evid.R. 801. 

Generally, statements containing hearsay are inadmissible. Evid.R. 802. But under 

Evid.R. 803(4), statements made for the purposes of medical diagnosis and treatment 

are not excluded by the hearsay rule. As we have determined that K.B.’s statements to 

Colliers were made for the purpose of medical diagnosis or treatment, the statements,

while hearsay, were thus admissible under Evid.R. 803(4). Defense counsel, 

consequently, was not ineffective for failing to object to Colliers’s videotaped interview 

of K.B. 

{¶65} Jackson also argues that defense counsel was ineffective for failing to 

object to the trial court’s decision to allow Colliers to testify as an expert witness. He 

contends that it was error to admit expert-opinion testimony when the expert’s 

opinion was not set forth in a written report in compliance with Crim.R. 16(K). 
OHIO FIRST DISTRICT COURT OF APPEALS

23

Jackson’s argument concerns Colliers’s testimony, set forth below, about latent 

disclosures and the absence of physical trauma to a victim.

{¶66} Colliers was asked by the prosecutor if she was familiar with the term 

“latent disclosure.” She responded affirmatively, stating that “disclosing is a process 

for many kids. So many kids do not often disclose right away, and it could be for a 

number of different reasons.” Upon an objection from Jackson, the state had Colliers 

set forth her training and qualifications on the topic of latent disclosures. The trial 

court overruled Jackson’s objection, stating that “She’s not actually having an opinion 

as to this witness. This is just general purposes for the record. She has an educational 

background to testify to it. I’m going to let her testify to it.” Colliers then testified that 

she regularly sees latent disclosures at the Mayerson Center. 

{¶67} Colliers also testified that a physical examination of K.B. showed no 

signs of trauma, and she stated that the absence of physical trauma did not necessarily 

rule out abuse having occurred. Jackson again objected to this part of her testimony. 

And the trial court again overruled the objection, stating that Colliers was not offering 

a specific opinion about K.B. and was talking in generalities. 

{¶68} Assuming that Colliers’s testimony was opinion testimony that should 

have been disclosed in a report and that defense counsel was deficient for failing to 

object on this ground, we cannot find that defense counsel rendered ineffective 

assistance because Jackson has shown no prejudice. The record contains K.B.’s 

testimony that Jackson raped her, as well as Jackson’s admission to touching K.B. and 

engaging in oral sex with her. We cannot say that there is a reasonable probability that

the outcome of the proceedings would have been different had defense counsel

objected and Colliers’s opinion testimony been excluded. 

{¶69} The third assignment of error is overruled. 
OHIO FIRST DISTRICT COURT OF APPEALS

24

Sufficiency and Weight

{¶70} In his fifth and sixth assignments of error, Jackson argues that his

convictions were not supported by sufficient evidence and were against the manifest 

weight of the evidence. 

{¶71} In reviewing the sufficiency of the evidence, we 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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 

82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus. When reviewing a challenge to the weight of the 

evidence, we must review the entire record, weigh the evidence, consider the 

credibility of the witnesses, and determine whether the trier of fact clearly lost its way

and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 

387, 678 N.E.2d 541 (1997). 

{¶72} Jackson was convicted of four counts of rape in violation of R.C. 

2907.02(A)(1)(b), which provides that “[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 * * * [t]he other person is less 

than thirteen years of age, whether or not the offender knows the age of the other 

person.”

{¶73} Jackson does not challenge the age element of this offense, but rather 

contends that the only evidence that a crime occurred was K.B.’s trial testimony, which 

he argues was inconsistent with prior statements that she had given about the offenses. 

{¶74} K.B. testified that the first time Jackson touched her, he called her into 

Coleman’s bedroom, pulled down her pants, and put his finger in her vagina. She 

further testified that on two occasions, she pretended to be asleep while Jackson put 
OHIO FIRST DISTRICT COURT OF APPEALS

25

his penis inside her vagina. And she testified that during one of the incidents of sexual 

conduct, Jackson told her to open her mouth. And that after she did so, he squirted 

something into her mouth. Viewing this evidence in the light most favorable to the

prosecution, we hold that K.B.’s testimony, if believed, was sufficient to establish that 

Jackson committed four separate counts of rape. See Walker, 150 Ohio St.3d 409, 

2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 12.

{¶75} Jackson’s argument about the inconsistency of K.B.’s testimony is 

relevant to a manifest-weight-of-the-evidence analysis, not a sufficiency analysis. He 

is correct that K.B. at times contradicted herself when testifying at trial. For example, 

she initially testified that Jackson had not put his penis anywhere else inside her body 

other than her vagina, but after she read the letter she had written several years earlier

describing Jackson’s actions, K.B. recalled that he had squirted something into her 

mouth after instructing her to open her mouth. Any inconsistencies in K.B.’s 

testimony concerned the details surrounding the specific sexual acts committed 

against her; they did not involve whether a sexual offense actually occurred or whether 

Jackson was the perpetrator of the offenses. K.B. remained consistent in her 

testimony that Jackson was the person who had committed these acts of rape. 

{¶76} As we review this testimony, we are mindful that K.B. was less than ten 

years of age when these offenses were committed. She first disclosed the offenses three 

years after they occurred, and she testified at trial almost two years after that. It is not 

inconceivable that such a young child would not recall the specific details of these 

offenses with 100 percent accuracy. Further, the trial court was aware of the 

discrepancies in K.B.’s testimony, and it was able to take them into consideration when

determining what weight to accord the testimony and when assessing K.B.’s 

credibility. In fact, the trial court plainly found K.B. to be a credible witness. In a 

written decision finding Jackson guilty, the trial court stated that “K.B.’s testimony 
OHIO FIRST DISTRICT COURT OF APPEALS

26

was consistent with her earlier statements; her testimony was credible, and the 

surrounding evidence presented by the State supported her testimony.” 

{¶77} In addition to K.B.’s testimony, the record contained Jackson’s 

confession to Officer Rivera. Although the acts admitted to by Jackson differed from 

the sexual conduct described by K.B., the trial court could plausibly have viewed 

Jackson’s confession as an admission to some wrongdoing while attempting to 

minimize the seriousness of his actions. Further, the trial court was entitled to reject 

Jackson’s recantation of his confession at trial as self-serving. 

{¶78} In support of his manifest-weight argument, Jackson further relies on 

Coleman’s testimony that Jackson never stayed the night at her apartment when K.B.

and her siblings were there and that she never left K.B. alone in the apartment. Again, 

we point out that the trial court was in the best position to judge the credibility of the 

witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph 

one of the syllabus; State v. Shepard, 1st Dist. Hamilton No. C-190747, 2021-Ohio964, ¶ 62. It was aware of the familial relationship between Coleman, Jackson, and 

K.B., and it was entitled to believe some, all, or none of Coleman’s testimony.

{¶79} This was not the rare case in which the trier of fact lost its way and 

committed a manifest miscarriage of justice in convicting Jackson. See Thompkins, 

78 Ohio St.3d at 387, 678 N.E.2d 541. Jackson’s convictions were supported by both 

the sufficiency and the weight of the evidence. The fifth and sixth assignments of error 

are, accordingly, overruled.

Conclusion

{¶80} Having overruled all six assignments of error raised by Jackson, we 

affirm the trial court’s judgment. 

Judgment affirmed.
OHIO FIRST DISTRICT COURT OF APPEALS

27

WINKLER and BOCK, JJ., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.