[Cite as State v. Hauptstueck , 2011-Ohio-3502.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24013 Plaintiff-Appellee : : Trial Court Ca se No. 10-CR-90 v. : : KEITH HAUPTSTUECK : (C riminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N

Rendered on the 15 th day of July, 2011.

. . . . . . . . . MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorneys for Plaintiff-Appellee GEORGE A. KATCHMER, Atty. Reg. #0005031, 108 Dayton Street, Yellow Springs, Ohio 45387 Attorney for Defendant-Appellant

. . . . . . . . . HALL, J. {¶ 1} Keith Hauptstueck appeals from his convi ction and sentence following a jury trial on four counts of raping a child under age thirteen, one count of forcible rape, two counts 2

 of gross sexual imposition involving a child unde r age thirteen, one count of gross sexual imposition by force, and one count of sexual battery. {¶ 2} Hauptstueck advances eight assignments of error on appeal. First, he contends the prosecutor engaged in misconduct during cl osing arguments by appealing to jurors’ emotions. Second, he claims th e trial court erred in allowing the State to introduce inadmissible expert testimony. Third, he assert s that the prosecutor engaged in misconduct by arguing facts not in evidence. Fourth, he alle ges that count nine of his indictment, which charged sexual battery, was fatally defective. Fifth, he argues that he received constitutionally

ineffective assistance of trial counsel. Sixth, he contends hi s convictions are against the manifest weight of the evidence. Seventh, he claims the trial c ourt erred in failing to suppress a tape recording of telephone conversations he had with th e victim’s mother. Eighth, he asserts that cumulative error deprived him of his right to a fair trial. {¶ 3} The charges against Hauptstueck stemmed from allegations that he had sexually abused his grandson, M.S., on numerous occasions over several years. The victim’s mother, T.I., testified at trial that sh e confronted her son after a frie nd expressed concerns about an inappropriate relati onship between Hauptstueck and the child. Without mentioning Hauptstueck, T.I. and her husband asked M.S. whether “anything inappropriate” was going on and whether he knew what they were talking about. M.S. replied that he did know, and he accused Hauptstueck of sexually abusing him. According to T.I., M.S. told her that Hauptstueck had “been doing it * * * for years.” {¶ 4} After confronting her son, T.I. contacted the police, who began an investigation. While the investigation was proceeding, Hauptst ueck periodically called T.I.’s house. T.I. 3

 initially avoided the calls. She then reported the calls to police. Detective Michael Rotterman

discussed the issue with T.I. and informed he r that she could tape-record her conversations with Hauptstueck. The following day, T.I. gave police a recording of two telephone

conversations between hersel f and Hauptstueck during wh ich he made incriminating admissions about fondling M.S. and engaging in oral sex with the child. After reviewing the tapes, detective Rotterman and another detective interviewed Hauptstueck at the police station. During those interviews, Hauptstu eck again admitted sexually molesting M.S on multiple occasions. M.S. also testified at tria l and recalled Hauptstueck sexually abusing him at three locations over a period of years. M. S. additionally testif ied about Hauptstueck possessing a gun and threatening to kill anyone who found out about the abuse. {¶ 5} After the jury convicted Hauptstueck of the charges set forth above, the trial court imposed an aggregate sentence of sixty- six and one-half years in prison. This appeal

followed. {¶ 6} In his first assignment of error, Hauptst ueck contends the prosecutor engaged in misconduct during closing arguments by appealing to jurors’ emoti ons. In particul ar, he takes issue with remarks the prosecutor made while playing part of a tape recording. The remarks

were as follows: {¶ 7} “I just want to play a couple more clip s for you. And these are [T.I.’s] words, and they are quite haunting. {¶ 8} “(CD played from 11:21 a.m. to 11:22 a.m.) 1

1 The clips from the CD were not transcribed but they were recorded on the audio/video transcript which we have reviewed. The clips are from the telephone recording between the victim’s mother and the defendant which ha d previously been played to th e jury. The portion replayed during the argument is the victim’s mother saying the boy feels he is not worth anything, he cuts himself because of 4

 {¶ 9} “[T.I.’s] words that her son will be changed forever, that she’s left with a broken child. She thought she took her kids to a safe place, to their grandparents. Her words are haunting, but the Defendant’s words convicted h im of seven of the nine counts. And the final two counts, common sense convicts the Defe ndant.” (Trial transcript, at 236-237). {¶ 10} Hauptstueck contends the prosecutor’s remarks were objectionable because they were intended to inflame jurors’ emotions . We note, however, that defense counsel did not object. Therefore, Hauptstueck has waived all but plain erro r, which does not exist unless, but for the error, the outcome would have been di fferent and reversal is necessary to prevent a manifest miscarriage of justice. State v. Davis , 127 Ohio St. 3d 268, 2010-Ohio-5706. We see no plain error here. {¶ 11} “The test for prosecutorial misconduct is whether the prosecutor’s acts were improper in their nature and char acter and, if they were, whether the substantial rights of the defendant to a fair trial were prejudiced thereby.” State v. McGonegal (Nov. 2, 2001), Montgomery App. No. 18639, citing State v. Smith (1984), 14 Ohio St.3d 13, 14. “While a prosecutor may not make excessively emotional arguments tending to inflame the jury’s sensibilities, the prosecutor is entitled to some latitude in making a closing argument to the jury.” State v. Tibbetts (2001), 92 Ohio St. 3d 146, 168. In th e context of argument about the force element of the two final charges, where the force was not physical but rather subtle or psychological, the child’s emotiona l state could have had some rele vance. We are not able to say that the argument was improper. {¶ 12} Even if defense counsel had objected, th e prosecutor’s remarks here would not

what the defendant has done and she is left with a broken chil d who she thought she had taken to a safe place, the grandparents ’ home. 5

 have warranted reversal. In our view, the re marks did not make an excessively emotional appeal to the jurors’ emotions. While characteriz ing T.I.’s words as “haunting,” the prosecutor focused on Hauptstueck’s own words, which the prosecutor pointed out were enough to convict him on most of the charges. We s ee no prosecutorial misconduct and certainly no plain error. The first assign ment of error is overruled. {¶ 13} In his second assignment of error, Haupt stueck claims the tr ial court erred in allowing the State to introduce inadmissible expert testimony. This argument concerns testimony from pediatric psychologist Sarah Gr eenwell, who explained that adolescent males often delay reporting abuse involving a family member. {¶ 14} Hauptstueck contends Greenwell’s tes timony was inadmissible under Evid.R. 703, which provides: “The facts or data in the particular case upon which the expert bases an opinion or inference may be those perceived by the expert or admitted into evidence at the hearing.” Hauptstueck also challenges th e admissibility of Greenwell’s testimony under Evid.R. 705, which states: “The expert may testif y in terms of opinion or inference and give the expert’s reasons therefor af ter disclosure of the underlying facts or data. The disclosure may be in response to a hypothe tical question or otherwise.” {¶ 15} On appeal, Hauptstueck contends Gr eenwell was not asked any hypothetical questions. He also notes that she demonstrated no familiarity with the facts of his case, did not refer to any such facts, and did not claim to ha ve reviewed the record. Therefore, he argues that her testimony failed to comply with Evid.R. 703 and Evid.R. 705. {¶ 16} We are unpersuaded by Hauptstueck’s argument. Once again, we are limited to plain-error review as no objec tion was made below. As set forth above, Greenwell testified 6

 generally about delayed di sclosures of sexual abuse, a releva nt issue in this case. Although she did not specifically address M.S.’s situation, sh e identified the types of children who tend to delay reporting and the situati ons often involved. Greenwell indi cated that her testimony was based on her own experience and her review of the “literature.” Greenwell adequately identified the basis for her opinions, and she sa tisfied Evid.R. 703 and Evid.R. 705. See, e.g., Beard v. Meridia Huron Hosp ., 106 Ohio St. 3d 237, 241, 2005-Ohio-4787, ¶26. (“Because experts are permitted to base their opinions on their educati on, including their review of professional literature, training, and experience, it follows that experts are also permitted to testify regarding that information.”). Th e second assignment of error is overruled. {¶ 17} In his third assignment of error, Ha uptstueck asserts that the prosecutor engaged in misconduct by arguing facts not in evidence. In particular, he challenges the prosecutor’s statements during closing argument s about the absence of DNA or other physical evidence. Hauptstueck contends no testim ony was presented at trial upon which the prosecutor could base an argume nt regarding such evidence. {¶ 18} We disagree. Plain-error analysis applie s here, too, because defense counsel did not object to the prosecutor’s remarks. In any ev ent, the record fails to support Hauptstueck’s allegation of prosecutorial misconduct. On cr oss examination, defense counsel asked two detectives whether they had found any DNA or other physical evidence corroborating M.S.’s allegations. They responded that they had not. On re-direct examination, one of the detectives explained that he did not expect to find physical evidence such as DNA because the allegations involved touching a nd oral sex performed long be fore the investigation began. Moreover, defense counsel commented on the l ack of DNA evidence in his closing argument. 7

 In light of the testimony and the defense argument, the prosecutor properly addressed the non-existence of DNA or other physical evid ence during closing arguments. The third assignment of error is overruled. {¶ 19} In his fourth assignment of error, Haupt stueck alleges that count nine of his indictment, which charged sexual battery, was fatally defective. {¶ 20} Count nine alleged that Hauptstueck “did engage in sexual conduct with another, not his spouse, said offender being the other person’s natural or adoptive parent, or a stepparent or guardian, cust odian, or person in loco pare ntis of the other person[.]” Hauptstueck claims this charge was flawed b ecause it failed to set forth the facts upon which his “in loco parentis” status was predicated. His argument emanates from State v. Noggle (1993), 67 Ohio St.3d 31. There, the Ohio Supr eme Court held that “[i]ndictments based upon an alleged offender’s status as a person in loco parentis should at least state the very basic facts upon which that alleged status is ba sed.” Id. at paragra ph two of the syllabus. {¶ 21} Upon review, we find Hauptstueck’s argume nt to be unpersuasive. As with his other arguments, he faile d to raise this one below. Therefore, he has waived all but plain error.

State v. Horner , 126 Ohio St.3d 466, 2010-Ohio-3830, paragr aph three of the syllabus. We find no plain error here. {¶ 22} The purpose of including a factual basis to support an allegation of in loco parentis status in an indictment is to give a defendant sufficient notice of the charge against

him. 2 See State v. Funk , Franklin App. No. 05AP-230, 2006-Ohio-2068, ¶49. When an

2 The State suggests that the Ohio Supreme Court implicitly has overruled Noggle because more recent cases only have required an indictment to track the language of a statute to be sufficient. The conclusion in Noggle that the words “in loco parentis” were not sufficient has not been directly overruled, modified, or criticized by any more recent Ohio Supreme Court cases. Given our disposition of this 8

 indictment charging sexual battery lacks such a factual basis, a bill of particulars can serve the

same purpose. Noggle , at 34. Here Hauptstueck never requested a bill of particulars. This fact, combined with his failure to object to the language of his indictment and his ability to present a defense at trial, suggests that he was not misled and that he unders tood the nature of the sexual battery charge against him. Indeed, it is readily apparent to this Court that the factual basis for an in loco parentis finding here wa s Hauptstueck’s status as a grandparent with whom M.S. visited and spent the night. A gr andparent is significantly different from the teacher/coach relationship in Noogle or the family-friend/houseguest in Funk. Because Hauptstueck was a grandparent, and because th e evidence supports a finding of in loco parentis status, we find no plain error in his i ndictment’s omission of specific basic facts to support that status. Accordingly, the f ourth assignment of error is overruled. {¶ 23} In his fifth assignment of error, Hauptstueck argues that he received constitutionally ineffective assistance of trial counsel. In par ticular, he criticizes his attorney for failing to object to count nine of his i ndictment, to pediatric psychologist Greenwell’s expert testimony, or to the prosecutor’s closing argument. {¶ 24} To prevail on his claim, Hauptstueck must show deficient performance and resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To establish deficiency, he must s how that counsel’s representation fell below an objective standard of reasonableness. Id. To show prejudice, he mu st demonstrate that counsel’s deficiency impacted the judgment against him. State v. Bradley (1989), 42 Ohio

St.3d 136. Reversal is warranted if there is a reasonable probability that, but for counsel’s

assignment of error on other grounds, we decline to determine whether Noggle has been implicitly overruled. 9

 deficient performance, the result of the proceeding would have been different. Id. {¶ 25} Upon review, we conclude that Hauptstueck cannot prevail on his ineffective-assistance claim. In our analysis above, we concluded that he was not prejudiced by his indictment’s omission of basic facts suppor ting an in loco parentis allegation in count nine. Moreover, with regard to Greenwell’s te stimony, we held that it was not objectionable

under Evid.R. 703 or Evid.R. 705. We also found nothing objectionable about the challenged portion of the prosecutor’s closing argument. In light of these de terminations above, Hauptstueck has failed to establish any defi cient performance by his trial counsel that prejudiced him. His fifth assi gnment of error is overruled. {¶ 26} In his sixth assignment of error, Ha uptstueck contends his convictions are against the manifest weight of the evidence. In support, he notes that M.S. failed to report any abuse for years and ultimately did so only after being questioned by his mother. Hauptstueck also stresses M.S.’s inability to recall specific dates or the number of times sexual abuse took place. He additionally points to evidence th at T.I. once caught M.S. viewing “gay pornography” on the internet. Hauptstueck attributes M.S.’s allegations of abuse to the child having viewed this pornography. {¶ 27} When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a manifest miscarriage of justice that th e conviction must be reversed and a new trial ordered.’” State v. Thompkins (1997), 78 Ohio St.3d 380, 387 (citations omitte d). A judgment should be reversed 10

 as being against the manifest weight of the evidence “only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172,

175. {¶ 28} Having reviewed the record, we do not find that Hauptstueck ’s convictions are against the weight of the evidence. M.S. testif ied about incidents of a buse occurring at three locations over a period of years. The jury h eard recorded telephone conversations between Hauptstueck and T.I. during which he admitted sexually abusing M.S. The jury also watched a recording of Hauptstueck’s interview at the police station during which he again admitted molesting M.S. on multiple occasions. {¶ 29} With regard to M.S.’s delay in reporting the abuse, the State presented testimony from pediatric psychologist Greenwell, who explained why adolescent males often delay reporting abuse involving a family member. As for M.S.’s inability to recall certain specifics, his lack of recall is not surprising given the length of time involved. Finally, the jury was free to reject Hauptstueck’s theory that M.S. may have fabricated the sexual-abuse allegations after viewing internet pornogra phy. In light of M.S.’s testimony, and Hauptstueck’s recorded confessions , the jury did not clearly lose its way and create a manifest miscarriage of justice when it found him guilty. The evidence does not weigh heavily against Hauptstueck’s convictions. The sixth assignment of error is overruled. {¶ 30} In his seventh assignment of error, Hauptstueck claims the trial court erred in failing to suppress the tape reco rding of his telephone conversations with T.I. In support, he

contends detective Rotterman induced T.I. to r ecord the conversations. Therefore, he reasons that T.I. was acting as a government agent a nd that a warrant was re quired before she could 11

 tape the conversations. {¶ 31} Hauptstueck’s argument lacks merit for at least two reasons. First, the record does not establish that T.I. was acting as a Stat e agent when she recorded the calls. Detective

Rotterman did not instruct her to record an y conversations, did not provide her with a recording device, did not arrange the conversa tions, and was not present when they occurred. The detective simply told her that she c ould talk to Hauptstu eck on the telephone and suggested that she might want to record the conversation. We are unpers uaded that this advice transformed T.I. into an agent of th e State for Fourth Amendment purposes. {¶ 32} Second, Hauptstueck’s argument is unpersuasive even assuming, purely arguendo, that T.I. did qualify as a State agent. We are aware of no authority that precludes a law-enforcement officer or other governme nt agent from speaking to a suspect on the telephone and recording the conve rsation without a warrant. A lthough Hauptstueck generally cites R.C. 2933.51, et. seq., Ohio’s electronic surv eillance law, nothing therein precluded T.I. from recording her telephone conve rsations with him. The statute generally prohibits the warrantless interception of wire , oral, or electronic communi cations. It does not apply, however, to a law-enforcement officer who “intercepts a wire, oral, or electronic communication, if the officer is a party to the communication[.]” R.C. 2933.52(B)(3). Nor does the statute apply to “[a] person who is not a law enforcement officer and who intercepts a wire, oral, or electronic co mmunication, if the person is a party to the communication[.]” R.C. 2933.52(B)(4). The upshot of these excepti ons is that T.I. was not prohibited from recording her conversations wit hout a warrant because she was a party to the conversations. For this additional reason, the sevent h assignment of error is overruled. 12

 {¶ 33} In his eighth assignment of error, Hauptstueck raises a claim of cumulative

error. He contends the effect of the errors alle ged in his first seven assignments of error, even if individually harmless, cumulatively deprived him of a fair trial. {¶ 34} It is true that separately harmless errors may violate a defendant’s right to a fair trial when the errors are aggregated. State v. Madrigal (2000), 87 Ohio St.3d 378, 397. To find cumulative error, we first must find multiple errors committed at trial. Id. at 398. We then must find a reasonable probability that the outcome below would have been different but for the combination of separately harmless errors. State v. Thomas (Sept. 21, 2001), Clark App. No.2000-CA-43. In our review of Hauptstueck ’s other arguments, however, we found no multiple errors. Therefore, we find no cumulative error. The eighth assignment of error is

overruled. {¶ 35} The judgment of the Montgomery C ounty Common Pleas Court is affirmed.

. . . . . . . . . . . . . .

FAIN, J., concurs. FROELICH, J., concurring: {¶ 36} I concur, but I would find the separa te playing of and commenting on the “haunting” excerpt to be ina ppropriate and possibly error. Its effect was to emphasize a mother’s emotional explanation of the harm and pain suffered by her and her child rather than whether the State had proved the Appe llant guilty beyond a reasonable doubt. {¶ 37} However, I agree with the majority that such actions were not plain error and that the failure to object did not constitute ineffective assistance; the lack of objection may 13

 well have been a decision by counsel not to draw attention to the statements. Further, even if an objection had been made, the playing of the recording and the prosecutor’s brief remark did not deprive the Appellant of a fair trial.

. . . . . . . . . . Copies mailed to: Mathias H. Heck, Jr. Laura M. Woodruff George A. Katchmer Hon. Barbara P. Gorman