[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

- Appell ee ,

vs. LARRY JACKSON, JR. , Defendant

- Appell ant

. :

:

:

:

: 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 , Assis tant Prosecuti ng Attor ney , for Plaintiff

- Appell ee , Arenstein & Gallagher and Elizabeth Conklin , for Defendant

- Appellant

.OHIO FIRST DISTRICT COURT OF APPEALS

2 M YERS , Presiding Judge. 

### {¶1} Defendant

- appellant Larry Jackson, Jr. , appeals from the trial court’s entry convicting him, following a b ench trial, of four co unts 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 weigh t of the evidence supporting his
convictions. 

### {¶2} Finding the assignments of error raised by Jackson t o b e 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 th e time, disclo sed to a family member that Jackson , who was her cousin , had committed various sexual offenses against her several years earlier . T he offen ses occurred while K.B. and Jackson w ere both at the home of her great

- grandmother ( who was also Jacks on ’ s grandmoth er) Linda Coleman

. 

### {¶4} After learn ing of K.B.’s allegati ons, 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. Jac kson told Dete cti ve Roach that he stayed at Coleman ’ s ho me 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 cl ear on the exa ct time frame in which he lived with Coleman , but belie ved it wa s in 2015 or 2016. When asked about K.B.’s allegations, Jackson adamantly denied the m. 

### {¶5} At the concl usion of the interview , Jackson agreed to take a polygraph
examination. Bot h t he exami nat ion and p re - and post

- examination interview s wereOHIO FIRST DISTRICT COURT OF APPEALS

3 condu cted by O fficer Edwin Rivera . During the post

- examination interview, Jackson
i nitially denied all allegations , as he had during the pre

- examination interview and the polygraph examinatio n itself . But he later stated that “I touched h er but I never had sex with her, ” and h e admitte d to touching K.B.’s bottom. After Officer Rivera
continu ed to pus h back and to challenge Jackson’s statement s , he admitted to having oral s ex with K.B. 

### {¶6} In J anuary 2020, J ackson 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 d igital 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 ye ars of age w hen 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 f act tha t he ha d taken a polygraph
examination , to the results of the polygraph examination , and t o any statements made during the polygraph examination

. Jackson filed a supplemental motion to suppress arguing that he was not properly Mirandized and that h is conf ession w a s involuntary. Following a hearing, the trial court denied Jackson’s motion to s uppress. But it granted the motion in limine in part and prohibited any mention of the polygraph
examination

. 

### {¶8} At trial, K.B.’s grandmother Len a Burnett (who was Coleman ’ s daughter) testified t hat she h as cared for K.B. and her younger siblings for years. F rom 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 Lin da Coleman so t hat Coleman could babysit them before and afte r school

. She testified that a t some point d uring th at period of time , Jackson lived with Coleman for a two

- week period. 

### {¶9} Burnett testified that K.B. was in the t hird grade when these offenses occurred. She initially stated that K.B. began third grade i n August 201 5 . B ut afterOHIO FIRST DISTRICT COURT OF APPEALS

4 loo kin g at K.B. ’s medical records, she re calle d that K.B. had repeated kind ergarten because of a childhood illness and in fact had started second grade , not third, in Au gust
2015. 

### {¶10} A

f ter K .B. testified that she was born on August 6, 2007 , and that she started t hird grad e in the year 2016 , th e state requested an in

- chambers on the re cord conference . I t informed the court that it now anticipated that K.B.’s testimony woul d indicate tha t the offenses occurred in 2016, rather than 2015 , stating “ [K.B.], I anticipate, is going to testify that any sexual conduct occurred in the ear ly part of third grade, which would mean it was 2016. ” The state asserted , “ T he indictment was

p rocesse d in r e lation 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 w hen Jackson says it happened.” I t made a motion to amend the indictment to include the time peri od of Apr il 1 , 2 016 , through Oc tober 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 whic h the offenses occurred. T he trial court elected to hold the motion in abeyance. 

### {¶11} K.B.’s testimony continued followin g the in

- cham bers conference. She stated that Jackson had engaged in sexual conduct with her three times when she was nine years old and g oing into the third grade , all incidents occurring when they were both at her great

- grandm other Linda Colema n’s house and she had been left home alone while Coleman and her siblings went to the store

. D uring the first incident of sexual conduct with Jacks on , K.B. testified that he called her int o Coleman’s bedroom, pulled down her pants, and put his finger in her vagina. D uring 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 p ut his p enis anywhere else inside her body.
K.B. did not tell anyone what Jackson had done to her until Aug ust 2019, which was approximately three years after the offenses occurred.OHIO FIRST DISTRICT COURT OF APPEALS

5 

### {¶12} To he lp her refresh her recollection of Jackson ’ s actions, K.B. was sho wn a let ter that she h ad written in August 2019 describing what Jackson had done to her.
A fter twice reading the letter , she te stified that during one of the i n cidents of sexual conduct, Jackson told her to open her mouth , a nd that after she did so, he s quirted

s omething into her mouth

. 

### {¶13} K.B. a l so testified about her interview at the Cincinnati Children’s Hospital May erson Center

. S he acknowl edged tha t she repeatedly stated during the
interview that she had a bad memory . She also told the interviewer that Ja c kson took off her clothes, with the exception of her br a and underwear, and touched her chest under her bra. 

### {¶14} Tracy Colliers, a socia l worker at Cincinnati Children’s Hospital’s Mayerson Center, testified that she had conducted a diagnostic interview of K.B. for

purp oses of medical diag no sis and treatment. The interview was recorded and played for the court. 

### {¶15} Officer Edwin Rivera test ified abo ut his interview of Jackson on January
15, 2020
. A video of the interview was ad mitted into evidence and a por tion of it was played for the court. River a ’ s interview of Jackson , which occurred immediat el y after

t he polygraph examination was admi nistered, lasted approximately 90 minutes

. I t includ ed Jackson’s initial denials of engaging in sexual conduct with K.B ., and then
hi s admission that he had touched K.B.’s bottom but had not engaged in s ex with h er. Upon extensiv e challenging of his statement by Officer Rivera, Jackson subsequently admitted to engaging in oral sex with K.B. Jackson told Officer Rivera th at K.B. was al one in bed when he got home in the middle of the night , and th at th e o ther chil dren 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 thr ee, five secon ds, and I just told her to get off.” Jackson stated that “it just hap pened,” a nd that he leftOHIO 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} O fficer Rivera d esc rib ed the cond itions of the interview, stating that he sat less than a foot from Ja c kson in J ackson’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 f or, access to the bathroom

. 

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

to a mend the indictmen t. Jackson objected to the amendme nt, arguing that if i t was
g ranted, h e w ould no longer be able to present an alibi def ense. The tri al court granted the motion to amend, recognizing that Crim.R. 7(D) permits the liberal amendment of
in dictments. It stated that:
T h is doesn’t change the essential elements as the pro secutor h as pointed out. That would be a different matter , if it change d the age of the victim because that is an essential element, but this is more of the notice of the tim e. Furthermore, it wasn’t so much

— I mean, I think even from the start of the cr iminal in v estigation, even the defendant knew about, at le ast roughly, w

hat period of time they were looking at because it was the period of time he was living with his grandm other, the victim’s great

gran dmother. I don’t believe that it rises to the lev el of pre judice because it’s still talking about a period of time when s he 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 f ind that ris es to the level of prejudice. And, f u rthermore , this could simply be a scrivener’s error, subst it ut ing ’15 fo r ’16 when it was put together. But the victim and the other witnesses seem to be pretty clear about t he age, or, at least, what gra deOHIO FIRST DISTRICT COURT OF APPEALS

7 she was going into at the time this happened. F rankly, s he seemed pretty definitive about that. The indi ctment was ame nded to include the time period of April 1 to October 1 in both the calendar years 2015 and 2016. 

### {¶18} Det ective Roach was called as a witness by Jackson

. H e testified that he began investigating t his case in August of 2019 after K.B.’s family called to repo rt her allegations. Detective Roach stated that t he d ates on the incident report for these offe nses were different than th e dates or iginal ly specified in the in dictment. Th e incident report listed the dates of the offenses as September 2016 through May 2 017, the time period when K.B. was in third grade. Detective R oach first explained that he determined the dates used in th e indictment based on information obtained from Jackson during the post

- polygraph

- exam ination interview regarding when Jackso n lived at his grandmother’ s house. He then clarified that the dat es 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 p art of it.” When asked what el se pla yed a part, De tective Roach responded: I mean, there were multiple parts when we were trying to narrow down the time frame, how old she w as; what grade she was in; you know, the plethora of different times that he said he was there. You know, the y ears h ad changed tha t he said that he was there. And then from talking to Gran dmother about when she would allow the kids to be there througho ut the year and after school, which was, you know, a large time frame, and then al so from the victim’s testimony, or th e victim’s May erson interview. 

### {¶19} Detective Roach also discussed his January 2020 interview with Jackson , and he stated that J ackson was ada mant that he had n ot committed the acts he was accused of.OHIO FIRST DISTRICT COURT OF APPEALS

8 

### {¶20} Linda Coleman testifi ed 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, bu t that she was unaware of a time that Jackson was at her home while K.B. was there after school. Coleman could not rec all a time whe n she left K.B. at home while she took the other siblings t o the store. 

### {¶21} Jackson testified that he voluntarily went to the police station in January 2020 to speak with Detective Roach to clear hi s name. He agreed to take the polygraph exami nation fo r the same reason. Jackson stated that he felt forced into admitting that he engaged in sexual conduct with K.B. after he was i nterviewed for so many hours , during which he repeatedly den ied K.B.’ s allegations. According to Jackson, he feared fo r his life, di d no t believe that he could leave the police s tation, and felt pressured to confess. He told the court that he graduated from h igh school , and that he had been given an individual ized e ducation plan while in high school

. 

### {¶22} Ja ckson testified that there was a pe riod of time in 2015 when he stayed over at Coleman’s house after he had a falling

- out with his girlfriend. During that ti me, he worked long hours for a moving company and rarely saw K.B. or her siblings, other than occa sionally in the mornings when he wa s 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 con duct with K.B. 

### {¶23} The trial cou rt fo und 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 assignment s of erro r, Jackson chall enges the tria l cou rt ’ s deni al of his motio n to sup press. We c onsider these assignments toget her.

a. Interviews, Motion to Suppre ss, and Cour t ’ s Ruling


### {¶25} Jackson voluntarily wen t to the police station on January 15, 2020 , to speak with Dete ct ive Roach. Prio r to speaking with Jackson , Detective Roach verified
that Jackson was not under the influence of any drugs or alco hol, had graduated from high school , an d that he could read and write . He then read Ja ckson his rights, stating: Before we ask you any ques ti ons, you mus t understa nd your rights. Yo u 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 a ny questions and to have him with you during your quest ioning. If y ou canno t af

ford a lawyer, on e will be appointed for you before any questio nings, if you wish.
If you decide to answer questions now withou t a lawyer pr esent, you will still have the righ t to stop answering at any time. You also have the ri ght to stop an swering at any time until you talk to a lawyer.
Detective Roach then had Jackson explain what that rec itation meant. Jackson stated,

“ Well , it means I have the right to talk, but if I ha d a lawyer present, it ’ d be

— I don ’ t know. ” Detective R oach clari fied , stating that “ If you want to tal k to me, you c a n talk

to me. If you want to stop talking to me

— you can stop talking to me , ” and that “ we ’ re going t o have a conversation . If you w ant to stop talking to me, you stop talking toOHIO FIRST DISTRICT COURT OF APPEALS

10 me. ” Jackson th en signed t he waiver of rights f orm , 1 and he be gan to speak with
Det ective Roach . He denied th e allegations against him. The waiver signed by Jackson was not admitted into evidence, and o ur r ecord does not contain a copy of it. Nor was the videotape of this portio n of the i nterview admitted into evidence or played for the

court. The only evidence before this court is the transc ript of the in terview between Detective Roach and Jackson. 

### {¶26} Jackson submitted to the polygraph examination wi th Officer Riv era immediatel y after hi s intervie w with Det ective Roach. The videotape of t his
examination and subsequent interview with Officer Rivera wa s admitted into evidence and is part of the record on appeal. Prior to conductin g the e x amination, O f ficer
R iv era v erif

ied that J ackson h ad been read his rights and reminded him that those rights were still in effect. 

### {¶27} W

hen Officer Rivera began the post

- polygraph

- exam ination interview with Ja ckson, he immed iately confronted Jackson and told him that he failed the poly grap h ex aminat ion

. T h e interview between Officer Ri vera 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 d one something and that J ackson 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 goo d people make mistakes. Jackson continued to deny
K.B. ’ s allegat ions, and O f fi cer Rive ra cont inued to inform him that he had fai led the pol ygraph examination. O f ficer R ivera 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 o f the form in t he 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 fo rm. T he parties are re ferring to the same form. T o avoid confusion, we ref er to the f

orm i n this opinion as a waiver of rights form.OHIO FIRST DISTRICT COURT OF APPEALS

11 eventually admitt ed he had touc hed K.B. ’s bottom , although he maintain ed his den ial

o f having sex with her. 

### {¶28} O f

ficer Ri vera pressed Jackson for more information, r epeatedly telling Jackson that he was not being truthful and that he had failed the pol ygraph
examination. H e told Ja ckson three t im es that Jackson had committed the actions he

wa s accused of, and he encouraged Jackson to step up a nd be a man. Officer R ivera
reit erated that everyone makes mistakes and that he wanted to help Jackson. He told Jackson that a 13
- y ear - old girl w ou ld not make up the allegations that were involved in this case

. Officer Rivera continued to conf ront Jackson and refused to accept his denial of misconduct

. Jackson ev entually adm itted to having oral sex with K.B. 

### {¶29} Ja ckson filed a motion to suppress , ar gu ing that he was n o t 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 i ntervie ws of Jackson by D etective Roach and O f ficer Rivera). The court su bsequently issued an entry den ying J ackson’s motion to

suppress. It found that Jackson was twice apprised of hi s Miranda rights, and that Jack son ’ s c onfession was voluntary under th e total ity of the cir cu ms tances

. It further found that Officer Rivera did not make misrep resen tations, promis e leniency, or engage in coercion.

b. Waiv er of Miranda Rights/Voluntariness


### {¶30} Jackson argues in his first assignment o f error that the trial court err ed in d enying the mot io n to suppress where it failed to determine that the waiver of his Miranda rights was made knowingly, vo luntarily, and intelligent ly

. A nd i n his second assignment of error, Jackson argues that the tria l court violated his righ t to due

proce ss by denying hi s motion to suppress because his confession was coerced. I nOHIO FIRST DISTRICT COURT OF APPEALS

12 con siderin g Jackson ’ s arguments, w e assume, without deciding, that he was in custody and that Miranda warnings were required. 

### {¶31} Appellate re view of a motion to sup press presents a m ixed questio n 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 compete nt, credible evidence, bu t we review de novo the trial court ’ s a pp lication of th e law to those facts. Id

. 

### {¶32} Both of Jac kson ’ s arguments

— that his Miranda waiver was not knowing , voluntary, and intelligent , and that hi s co nfes s ion was not voluntary

— are analyzed under a totality

- of

- th e - circumstances test. State v. Durgan , 1 st Dist.
Ham il to n No. C

- 170148 , 2018

- Ohio

- 2310, ¶ 21 ; State v. Eley , 77 Ohio St.3d 174, 178, 672 N.E.2d 640 (1 996)

. Under that test, we must “consid er the totality of the circumstances, including the age, mentality , and prior criminal experience of the

ac cused; the l en gt h, intensity, and frequency of interrogation; the existence of physical deprivation or mistrea tment; and the existence of threat or i nducement.” St ate v.
Wesson , 137 Ohio St.3d 309, 2013

- Ohio

- 4575, 999 N.E.2d 557, ¶ 35, quoting State v. Ed wards , 49 Oh io S t.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus. 

### {¶33} The state must prove by a prep on derance of the evidence that an

accus ed made a kn owing, voluntary , and i ntelligent waiver of h er or his Miranda rights

. Durg an at ¶ 22. Abse nt evidence th at a n accused ’ s will wa s overborne or his capacity for self

- determination was critically impaired b ecause of coercive police conduct, a wa iver of Miranda rights will be considered voluntary. Id . at ¶ 23

. “ Once it is determined that a suspec t ’ s decision n ot t o rely on his rights was uncoerc ed, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the S tate ’ s intention to use his statements to secure a conviction, th e analysis is complete and the waiver i s v alid as a m at te r 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 st ate must also prove by a preponderance of the evidence that a confession was voluntary. Durgan at ¶ 24. “ Coercive police activity is necessar y t o a finding t ha t a confession was involuntary within the meaning of the Due Process Clause

. ” Id

. 

### {¶35} While the trial court did not specifically find t hat Jackson ’ s waiver of his
Mira nda rights was made knowing ly , vo luntarily, and intelligent ly , we find t hat determinat io n implicit in the court ’ s holding. And t he record supports that finding

. After verify ing that Jackson could read and writ e and reading Jackson his rights, Detective Roach attempted to ensure that J ackson understood them, and he reiterated
to Ja ckson th at J ackson could stop talking a t 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 willingl y began to talk to Detectiv e Roach about K .B. ’ s allegations and to deny those allegations. 

### {¶36} We not e that while Jackson s igned the waiver of rights form , n o express wai ver, either oral or written , was explicitly required. State v. Willi ams , 2d D ist. Montgomery No. 28648 , 2021
- Ohio

- 1340, ¶ 55

. “ An e xpress written or o ral 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 , 1 s t Di st. Hamilton No. C

- 070490, 2008

- Ohio

316 0, ¶ 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

- Oh io

- 4477, 853 N.E.2d 279, ¶ 11. Rather, a waiver may b e inferr ed “ fr om the suspect ’ s behavior, viewed in light of all the surrounding circumstances

. ” Lat h er at ¶ 11, quoting State v. Murphy , 91 Ohio St.3d 516, 518, 747 N.E.2d 765 (2001). One such circumstance in which a wai ver can be inferred is where a def endant p roce ed s to spea k after havin g been advised of her or his rights and indicating an understanding of them. Williams at ¶
55.OHIO FIRST DISTRICT COURT OF APPEALS

14 

### {¶37} H ere, not only did Jackson sign the waiver form, but he proceeded to speak to Detective Roach imme diately after discussing the rights an d signing the
waiver

. Because Jackson ’ s decision not to invo ke his rights was uncoerced and because he wa s aware that he could sto p talking and request a lawyer at any time, and that anything he said could be us ed against him in court, the w aiver of his r ig h ts was valid as a matter of law. See Durgan , 1st Dist. Hamilton No. C

- 170148, 2018

- Ohio

2310, at ¶ 2 3. 

### {¶38} In considering the totalit y of the circumstances regarding whether the confession was voluntary , t he trial court foun d tha t Officer R iv era told Jac ks on 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 O f

f icer R ivera did not make misreprese ntations, p ro m ise lenienc y,

o r engage in coercion

. 

### {¶39} These findings were supported by the re cord. Officer R ivera engaged in very intense questioning of Jackson and refused to accept Jackson ’ s denial of misconduct. Th e questioning involv ed repeate d encourag ement of Jack son to t ell th e
t ruth and offer s to help him. It also in volved O f ficer R ivera repeatedly ( in excess of ten times) inform ing Jackson that he had failed the polygraph examination and stat ing that he knew Jackson had committed the actions he was being accuse d of

. W hile t he questioning was confrontational , Officer Ri vera did not c oerce , threaten , or mistre at
Jac kson. 

### {¶40} “ Admonitions to tell the t ruth are uncoercive in nature ” and are

p ermissible. State v. Carovillano , 1 st Dist. Hamilton Nos. C

- 06 0658 and C

- 06 0659,
2007
- O hi o - 5 4 59, ¶ 25. Nor did Officer R ivera ’ s offer to help Ja c kson resul t in

coerc ion. We have held that “ p romises that the defendant [ ’ ] s ‘ cooperation ’ would be considere d in the disposition of his case, or th at it would be in the de fendant ’ s ‘ be st interest ’ t o t ell the ‘ real story, ’ did not negate the volunt ary na ture 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 (1 st Dist.). Further, “ s uggestions of leniency, pr omises that a defendant ’ s cooperation will be con si de r ed 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 thi s case, Officer Rivera ’ s statements during the interview were i n tense and co nfront ation a l, b u t wer e no t coercive and di d 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 examinat ion were not a dm i ssible at trial , likewise did not render his confession
inv o l untary

. P olice are not required to tell a suspect that po lygraph resul ts are inadmissible at trial . See State v. Lytle , 4th Dist. Ross No. 96CA2182, 1997 Ohio App. LEXIS 921 , * 11 (Mar. 10, 1 997). 

### {¶42} J ackson additionally a rgues that his confession was coer ced because of
O f ficer Rivera ’ s use of the “ Reid T echni que ” of inter rogation

. While Officer R ivera was b riefly asked about the Reid S chool of Interviewing du ri ng his trial testi mony, Jackso n did not r aise this argument in his motion to su ppress before the trial court and no evidence was presented on it at the suppression hearing. We do not address this argument o n appeal, as we may “ only consider evi dence present ed at the suppre ssion hearin g
. ” Durgan , 1st Dist. Hamilton No. C

- 170148, 2018

- Ohio

- 2310, at ¶ 2 6 ( the court declined to consider an argument about t he “ Re id Meth od ” where the defendant had not raised the issue at the hearing on the motion to suppress)

. 

### {¶43} Following our re view of the r e cord, we hold that Jacks on 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 mot ion to
suppress , and the first and second assignments o f error are overruled.OHIO FIRST DISTRICT COURT OF APPEALS

16 Amendment of Indictment


### {¶44} For e ase of our discuss ion, we consider Jackson ’ s fourth assignment of

error out of order . In th is assignment of error , Jackson contends that the trial court
vi olated his const itutional right to due proce s s wh en it granted the state ’ s motion to amend the indictment. 

### {¶45} As disc ussed above , the indictment alleged that the offe nses were committe d between April 1, 2015 , and October 1, 2015. The state had selected these dates in par t based on K.B. ’ s s tatement t ha t the offenses occurred when she wa s going into the third g rade . Under the s tate ’ s calculation, K.B. had started th e third grade in
A ugus t of 2015. Trial testimony from both K.B. and Lena Bur nett, however, indicated that K.B. actually start ed the third g r ade in A ugust 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 . T he trial court granted the motion over Jackson ’ s objection. I t fo und that Jackso n was not pr ej u diced by the amendment because the amendment di d not change the essential el ements of the

o ffenses and because Jackson was aware of the state ’ s allegation or theory that these
crimes occurred during the p eriod of time that he lived w ith Cole man. 

### {¶47} Because J a ckson objected t o the amendment of the indictment at the trial level, we rev iew 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 (1 st Dist .). 

### {¶48} T he purpo se of an ind ic t ment is to give notice to the accused

. Id . at ¶
134. I t shou ld “ apprise th e 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

- Ohio

3830, 935 N. E.2d 26, ¶ 10

. Pursuant t o C r im.R. 7(D), “ [t] he court may at any time before, during, or after a trial am end 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 an y variance with the evidence , provided no change is made in the name or identity of the crime charged

. ” ( E mphasis added. ) 

### {¶49} T he amendment of the indictment in this case did not change the name s of the offense s . Prior to the amendment, Jackson was ch arged w ith four co unts of

rape . He w as charged with the same offense s fol lowing the indictment. Nor did the amend ment of th e in dictment change the identity of the offense. See Svoboda at ¶ 136 (the amendment of the indictment from the time period January 1, 20 08, to December 31, 2008 , to t he time period August 1, 2011, to May 31, 2012 , “ did not change the identity of the charge or the nature of the conduct alleged ” ). T he nature of the conduct that Jackson was alleged to have committed did not ch ange, nor did t he location wher e the offens e s were alleged to have taken place. T he victim of the offenses rema ined the same, as the did th e surrounding circumstances. 

### {¶50} The state consistently proc eeded under the theory that Jackson committed these offenses during the p eriod of time th at he lived w i th Coleman because he had access to K.B. to commit the offenses during that time period , as she often stayed at C o leman ’ s before and af ter school. The bil l of particulars stated that : On or between April 1, 2015 and October 1, 2015, when D efendant was
l iving at Defendant ’ s grandmother Linda Coleman ’ s residence in the vicinity of 1702 Berkley Avenue, Cincinnati, Ohio, Def endant 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 Defe ndant ’ s penis in K.B. ’ s mouth. T he other two occasions , Defendant inserted Defendant ’ s penis into K.B

. ’ s vagin a . K.B. was in third grade and 7

- 8 years of age at the time (date of birth is Augus t 6, 20 07). 

### {¶51} All parties in this cas e were focus ed on t he t ime period that Ja ckson 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 t h at timing wh e n he spoke with Detective Roach in January of 2020. During that interview, he could not identify the specific year that he lived wi th Coleman, but stated that he though t it was either 2015 or 2016. At all times throughout
thi s case, the refe rence point f o r Jackson for pr eparing alibi evidence and defending against the offe nses with which he was charged was the p eriod of time that he lived
with Coleman. He h ad the opportunity to produce alibi evidence for this time period , if such evidence ex is ted

. And t h e record contains no evidence that it did. Accordingly, we are not persuaded by Jackson ’ s argument that the amendment impede d his ability

to pr od uce alibi evidence

. And, even if he was only focus ed on 20 15 prio r to trial, th e record is devo id of any ev i d ence that he had an alibi for 2016. Further, he did not seek
a continu ance to address this. 

### {¶52} The fac t that the amendment occurred during the middle of the trial is troubling , as it did not leave Jackson time to “ adjust hi s d efense strat egy accordingly. ”
S ee Svobod a , 2021
- Ohio

- 4197, 180 N.E.3d 1277 , at ¶ 136 (where amendment was made over a year pri or to trial, defendant had time to adjust defen se strategy). Nonetheless, because the reference point for Jackson as to when the offenses were

a lleged to ha v e occurred

— the time period that he lived with Coleman

— did not change, his defense strategy presumably would not h ave been altered, and he still had the ability long before trial to produce alibi evidence for th at time period

. And, Jackson doe s not argue t h at he did, in f act, have an alibi for 2016, nor did h e seek a continuance to obtain evidence of any alibi tha t might exist

. 

### {¶53} B e cause the amendment did not change the name or identity of the offense s , we hold that the trial court did not abus e its discre t i on 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 ar gues that the cumulative effect of defense counsel ’ s errors violated his right t o the e ffe ctive assistance of

cou nsel. 

### {¶55} Trial counsel will not be considered ineffective unless counsel ’ s perf ormance 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 ( 1 9 8 4); S tate 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 prejud i c e d by trial counsel ’ s performance if there is a reasonable probability that the outcome of the proceedings w ould have been different but for the deficient performance. Strick land at 694; Bradley at 142. 

### {¶56} Jackson first argues that counsel was i neffective f o r fail ing to seek a continuance after the in dictment was amended to change the dates of the offense s. He

ar gues that he was entitle d to a continuance under Crim.R. 7(D), and that counsel ’ s failure to request a continuance prohibited him from securing al i b i evid ence for the new dates in the indictment. Crim.R. 7(D) provides that if an a mendment is made to the i ndictment to cure a variance between the indictment and the proof, the defendant is entitled “ to a reasonable continuance, unless it cl early appea r s from the whol e proceedings that the defendant has not been misled or prejudiced by the defect or
variance i n respect to which the amendment is made, or that the defendant ’ s r ights will be fully protected by proceeding with the trial, or by a postponemen t t hereo f to a
l ater day with the same or another jury

. ” 

### {¶57} W e concluded in response to Jackson ’ s fourth a ssignme nt of error that the amendment to the indi ctment di d no t change the identity of the offenses and thatOHIO FIRST DISTRICT COURT OF APPEALS

20 the trial court did not abuse its discretion i n gran ting the amendment. We also explained that the amendme nt 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 p eriod of time that he lived with C o leman . W hile J ac kson asserts that he could have obtained alibi evidence for the new dates in the indictment if counsel had requested a continuance, th e record contains no evidence of an alibi. Where the allegations of ineffectiv eness are ba sed on facts o utsid e the record, we are unable to determine on appeal whether ineffective assistan ce of counsel occurred. State v. Giuggio , 1 st Dist. Hamilton No. C

- 170133, 2018

- Ohio

- 2376, ¶ 10. 

### {¶58} Jackson also contend s that c ounsel was ineffec tive for arg uing that hi s confe ssion was not voluntary because of his reduced mental capacity and then failing

t o investigate the argument further and introduce evidence , such as school reco rds, in support of th at claim. A gain, Jackson ’ s allegations of ineffectivenes s are based o n
matt ers outs ide the record , and we cannot determine in this appeal whether counsel was ineffecti ve on t his grou nd. See id

. 

### {¶59} Jackson ’ s remaining contention s in su pport of his ineffec tive

- assistance argument concern the testimony of Tra cy Co l liers , the s o cial worker who interviewed K.B. at the Mayerson Center

. He argues that counsel was ineffective for failing to object to the admission of Collier s ’ s videotaped interview with K.B

. Prior to Collier s ’ s testimony, d efense counse l made an oral motion in l i m i ne to e xclude the v ideo of Collier s ’ s interview with K .B. The t rial court overruled the motion after finding that the interview was ad missible und er E vid.R. 803(4 ). J ackson argues that counsel was
i neffective for failing to o bject to the ad mission of t h e inte rview because K.B

. ’ s
st atements in the interview were not ma de for the p urposes of medical diagnosis or

treat ment , were testimonial in nature , and were admitted in violation of the Confrontation Clause

.OHIO FIRST DISTRICT COURT OF APPEALS

21 

### {¶60} The Confro n tation Clause is fou nd in the Si x t h Ame ndment to the United States Constitution . It provides in relevant part that “ [i]n all criminal prosecutions, the accused shall enjoy the ri ght * * * to be confronted with the witnesses against him

. ” In Crawford v. Washington , 541 U.S. 36, 53
- 54 , 1 2 4 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 ha d had a prior opportunity for cross

- examination

. ” See State v. Crai g , 110 Ohio St.3d 306, 2006

- Ohio

- 4571, 853 N.E.2d 621, ¶ 81. 

### {¶61} Crawford only applies when the statement s involved are testimonial.
State v. Muttart , 116 Ohio St. 3d 5, 2007

- Ohi o - 5267, 875 N

. E.2d 944, ¶ 59 ; State v. Williams , 2017
- Ohio

- 8898, 101 N.E.3d 547, ¶ 10 (1 st Dist.). So in order to determine whether K.B

. ’ s statements violated the Confrontation Clause, we must first det ermine whether they were testimonial. This court has held t h at “ [ 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
C onfrontation Clause was designed to avoid. ’ ” Williams at ¶ 11, cit i ng M u t tart 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 nat ure of t he
q u e stioning

— 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 wer e made; and (5)
wh e ther t he child’s statements were consistent .” Id. at ¶ 1 1
. 

### {¶63} Here, K.B. was in the sixth grade at the time of her interview with Colliers. She was not questioned in an overly leadi ng or suggestive manner, she hadOHIO FIRST DISTRICT COURT OF APPEALS

22 no motive to lie, she seemed to und erstand the n e ed 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 c ourt did not err in determining that K.B.’s statements were given fo r purpo s es o f 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 confron tation b ecau s e K.B. testified at trial. See id. at ¶ 13. As this court has explained in multiple instances, there is no c onfrontation

- c lause violation where the child victim testifies at trial. Id.; State v. Lukacs , 188 Ohio App. 3d
597, 2010
- Ohio

- 2364, 936 N. E .2d 5 06 , ¶ 15 (1st Dist.). 

### {¶64} Having found no c onfrontation

- c lause violation, we turn to Jac kson ’ s argument that C o lliers ’ s interview of K.B. c ontained inadmissible hearsay and that the interview was not admissible under Evid.R. 803(4). Hearsay i s “ a statem e nt, o th er 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.
Gene r ally, statements containing hearsay a re inadmissible

. Evid.R. 80 2. Bu t u nde r 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 p urpose of medical diagnosis or tr eatment, t he statem e nts , while hearsay, were thus admissibl e under E vid.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 fai ling to

o b ject to the trial court ’ s decisi on to allow Colliers to testify as an exp ert witness. He contends tha t it wa s error to admit expert

- opinion testimony when th e 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 Jacks o n ’ s a rgument concerns Collier s ’ s testimony , set forth below, about latent disclosures and the absence of physical tr auma to a victim

. 

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

“ latent d iscl osure. ” Sh e responded aff irmat ivel y , st a ting that “ disclosing is a process for many kids. So many kids do not often disclose right away, and it c ould be for a number of different reasons. ” Upon an objection from Jackson, the sta te had Colliers set forth her training and qualific ations on the t opic of latent disclosures. The trial court overruled Jackson’s obje ction, stating that “She’s not actually having an opinion
as to th is witness. This is ju s t general purposes for the reco rd. She has an educational background to testify t o it. I’ m goi n g to let her testify to it.” Colliers then testified that she re gula rly sees latent disclosures at the Mayerson Center. 

### {¶67} Colliers also testified that a physica l examination of K.B. showed no signs of trauma, and she stated that the abse nce of physi c al t r auma did not necessarily rule out abuse ha ving occurred. Jackson again objected to this part of her t estimony. And the trial court again overruled the objection, stating that Colliers was not offering a specific opinion about K.B. and was t alking i n gen e ralities. 

### {¶68} A ssuming that Colliers ’ s testimony was opinion testimony that should have been disc

losed in a report and th at defense counsel was deficient for failing to object on this ground , we can not find that defense counsel rendered ineffe ctive

ass istan c e beca use 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 outco m e of t h e p ro ceedings would have been different had defense counsel objected and Colliers ’ s opinion testimony been exclu ded. 

### {¶69} Th e third assignment of error is overru led.OHIO FIRST DISTRICT COURT OF APPEALS

24 Sufficiency and Weight


### {¶70} In his fifth and sixth assignments of error, Ja ckson arg ues t h at his

con victions were n ot supported by sufficient e vidence and were against the manifest weight o f the evidence. 

### {¶71} In reviewing the sufficiency of the evidence, we must determine whether, “ after viewing the evidence in a light most favorab le to the pros e cution , an y rational trier of fact could have found the essential elements of the crime proven beyo nd 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 49 2 (1991 ),
p aragraph 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 determ ine whether the trier of fact clear ly lost i ts wa y and c reat ed 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 s hall engage in s exu a l 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 o ffend er know s th e a g e of the other
person
. ” 

### {¶73} Jackson does not cha llenge the age element of this offense, b ut rather contends that the only e vidence that a crime occurred was K.B

. ’ s trial testimony, which he argues was inconsistent with prior statements that she had giv en a bou t the offen ses. 

### {¶74} K.B. testified that the first time Jackson touched her, h e called he r into Coleman’s bedroom, pulled down her pants, and put his finger in her vagina. S he further testified that on two occasions , she pretended to be as leep while J acks on p utOHIO FIRST DISTRICT COURT OF APPEALS

25 his penis inside her vagina. And she testified that during one of the incidents o f sexual conduct, Jackson told her to open her mouth. And that after she did so, he squirted something into her mouth

. Vie wing this evidence in the l ight most fa vora ble to the prosecution , we hold that K.B

. ’ s testimony , if believed , was sufficient to establish that
Ja ckson 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 argumen t abo ut the inco ns i s tency of K.B

. ’ s testimony is relevant to a manifest

- weight

- of

- the

- evidence analysis , not a sufficie ncy anal ysis. He is correct that K.B. at times contradicted herself when tes tifying at trial. For example, she in itially testified that Jack son had not pu t his penis anywhere else inside her body other than her vagina, but after she read the letter she h ad written several years earlier describing Jackson ’ s actions, K.B. recalled that he had squirted something into her mouth after instru ct ing h er to o pen her mouth. An y inconsistencies in K.B. ’ s testimony co ncerned the details surrounding the s pecific se xu al acts committed against her; they did not involve w hether a sexual offense actually occurred or w hether Jackson was the perpet rator of the o ffenses . K .B. remained consistent in her testimony that Jackson was the person who had committed these acts of ra pe. 

### {¶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 disc losed t he o ffe n ses 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, t he tr ial cou rt w as a ware of the discrepancies in K.B

. ’ s testimony , and it was able to take them into consideration when determining what weigh t to accord the testimon y and when assessing K.B. ’ s credibility

. In f

act, t he trial court plainly found K.B. to b e a c redible wit nes s
. In a written decision finding Jackson guilty, the trial court stated that “ K.B .’s testimonyOHIO FIRST DISTRICT COURT OF APPEALS

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

surroun ding evidence presented by the State supported her tes timon y.” 

### {¶77} I n ad dit i on to K.B

. ’ s testimony , the record contained Jackson ’ s confession to Officer Rivera. Although the acts admitted to by Jackson di ffered from the sexual conduct described by K.B. , t he trial court could plausibly have viewed Jackson’s con fessi on as a n ad mis s ion to some wrongdoing while atte mpting to minimize the seriousness of his actions . Further, the t rial court was entitled to reject Jackson ’ s recantation of his confession at trial as self

- serving. 

### {¶78} In support of his manifest

- weight argu ment, J acks on f urther r elies on
Co leman ’ 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 co urt was in the be st po sition to j udg e the credibility of the
witnesses. See State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), p aragraph one of the syllabus; State v. Shepard , 1st Dist. Hamilton No. C

- 190747, 2021
- Ohio

964, ¶ 62. It was aware of the familial rela tions hip bet ween Co l eman , Jackson , and K.B., and it was e ntitled to bel ieve some, all, or no ne of Coleman ’ s testimony

. 

### {¶79} Thi s was not the ra re case in which the trier of fact lost its way and committed a manifest miscarriage of justice in convicting Jackso n. S ee Thom p kin s , 7 8 Ohio St.3d at 387 , 678 N.E.2d 541

. J ackson ’ s co nvictions were supported by both the suffic iency and the weight o f the eviden ce. T he fifth and s ixth assignments of error

are , a ccordingl y, overru led.

Conclusion


### {¶80} Having over ruled all six ass ignments of er r or raise d by Jackson, we affirm the trial court ’ s judgment. Judgment affirmed

.OHIO FIRST DISTRICT COURT OF APPEALS

27 W INKLER and B OCK , JJ. , c oncur .

Please n ote: The court has recorded its own entry on the date of the release of this opinion

.