[Cite as State v. Doak , 2020-Ohio-66.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2018-P-0022 - vs - : RICHARD B. DOAK, : Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00417.

Jud g ment: Affirmed in part, reversed in part, and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 ( For Plaintiff-Appellee )

. Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (Fo r Defendant-Appellant )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Richard B. Doak, appeals from the judgment of the Po rtage County Court of Common Pleas, after trial by jury, convicting h im of rape. We affirm in part, reverse in part, and remand. {¶2} On April 19, 2016, S.A. (“mother”), mother of the victim, I.A. (d.o.b. January 24, 2009), left her three children at home with Jason Williams, her live-in boyfriend, while she went to work. The children included I.A., I.A.’s sister, a nd I.A.’s half-brother. The2 home is located in Ravenna Township, Portage County, Ohio. Whi le Mr. Williams was doing house work, appellant, mother’s uncle, arrived at the res idence. When appellant entered the home, Mr. Williams noticed a pronounced odor of alc oholic beverage emanating from him. Appellant asked if he could take I.A. out to his truck. Mr. Williams stated he was uncomfortable with granting the request and decli ned; appellant made several more requests and when appellant suggested they would o nly be five or so minutes, Mr. Williams ultimately acceded. After appellant left the home with I.A., Mr. Williams went to the restroom and, upon glancing outside, notic ed appellant, I.A., and the truck were gone. He immediately called mother, who called the police. Mr. Wi lliams also contacted I.A.’s maternal grandmother (appellant’s sister), Val erie Pantalone, and I.A.’s aunt, Ashley Pantalone. {¶3} Portage County Sherriff Deputy Justin Herrera received a call f rom the Ravenna Police Department regarding an abducted child. He arri ved at the Ravenna Police Department and met with the grandmother and aunt, who ex plained what had occurred and provided the officer with a picture of I.A. Deput y Herrera then drove to the home where he met with Mr. Williams; the officer was also joine d by Portage County Sherriff Dep. Matthew Daily. The deputy stated the department was prepared to issue a “BOLO” (Be On the Look Out) to other departments, as well as an Amber alert. While speaking with Mr. Williams, appellant returned to the home with I.A. They had been gone

between an hour and a half and two hours. {¶4} Appellant was ordered out of the truck and Dep. Herrera approac hed the passenger side where I.A. was sitting. He noted that she was c rying and trembling. The child told the officer that appellant was mean to her and that she repeatedly asked3 appellant to take her home but he would not. After returning I .A. to her mother and family, Dep. Herrera rejoined Dep. Dailey outside. The deputies engage d appellant and noticed he appeared intoxicated: he had a strong odor of alcohol on his breath, he was swaying, and he had slurred speech. Appellant was asked to perform fiel d sobriety tests, which he declined; he also declined a BAC test. Appellant was ultimately arrested for OVI and additionally charged with child endangering. {¶5} The deputies returned to their department where they conferred with Lieutenant Gregory Johnson. Lt. Johnson recommended that, give n the circumstances of the report and arrest, Dep. Dailey return to the home and co llect the clothing I.A. was wearing while she was with appellant. He subsequently went bac k and acquired I.A.’s clothing and placed it in an evidence bag. {¶6} I.A. was given a bath later that evening. Her Aunt Ashley assi sted mother with the bath while the child’s grandmother looked on. None o f the women noticed any visible injuries on the child. While she was being bathed, how ever, the child stated appellant “stuck his hand on her hard down there.” She would n ot go into additional

details when asked about the comment. {¶7} The day after the incident, I.A. had an appointment with her co unselor, Jennifer Anders. Ms. Anders had been seeing I.A. since Novembe r 2015 due to certain inappropriate behavior which occurred between I.A. and a fellow student. Mother advised Ms. Anders of the incident and reported that appellant had hit I.A. on her thigh. According to Ms. Anders, I.A. confirmed this happened, but did not wish t o discuss the matter further. Nothing more was said about the incident for some eight months.4 {¶8} In December 2016, mother was with her two daughters at home whe n I.A. disclosed that, while visiting her father in Summit County, one of her step brothers made a “love connection” with her. When pressed about what she mean t, she indicated the two had “sex.” I.A. was subsequently taken to the Children’s Advoc acy Center (“CAC”) in Portage County where she met with Nurse Melinda Andel. {¶9} Nurse Andel is a Pediatric Sexual Assault Nurse Examiner and a ssists

families and children who are referred to CAC for concerns of s exual abuse. Nurse Andel stated CAC is a nonprofit, multi-disciplinary organization that coordinates prosecution, law enforcement, child protective services, mental health, medi cine, and child advocacy. She stated, upon receiving a referral, she will interview paren ts or caregivers to obtain a child’s medical history and obtain any information the parents possess regarding potential abuse. After speaking with the parents or caregivers, Nurse An del will conduct a medical examination of the child to determine whether there is any phys ical evidence of abuse and to ensure the child is not medically compromised. She then conducts an interview with the child, which is recorded. In the course of an interv iew, Nurse Andel stressed her major concern is to determine whether sexual abuse occurred; an d, through the medical information as well as the child’s statements, Nurse Andel can properly assess how to diagnose and treat the child and determine what interventions a re necessary. In order to accomplish these goals, Nurse Andel stated she builds a rapport with the child, letting him or her know she is a nurse whose goal to ensure the child i s healthy and safe. {¶10} Upon commencing her interview with I.A., Nurse Andel was able t o elicit information regarding a sexual encounter the child had with her step brother. In the course of describing how the encounter occurred, I.A. spontaneo usly disclosed she had5 a similar encounter with an adult, who she later identified as appellant. I.A. stated she had “never told a single person,” but that appellant had “sex” with her in a men’s bathroom at a park. I.A. demonstrated how she was positioned when it ha ppened (laying on her back) and how appellant accomplished the act (on top of her, th rusting with the pelvis). She stated appellant inserted his penis into her vagina and “pe ed” on her when the

incident concluded. {¶11} Portage County Department of Job and Family Services (“PCDJFS”) was notified of the new allegation and it notified the Portage Coun ty Sheriff’s Office. CAC sent

the Sheriff’s Office a narrative of what was disclosed as well as a DVD recording of the

interview between I.A. and Nurse Andel . Deputy Marsha Zwick reviewed the information and DVD and ultimately contacted appellant, who agreed to come into the office for an interview. Appellant confirmed he took I.A. to the park on Apr il 19, 2016, but denied any inappropriate conduct. Appellant stated that, while they were at the park, I.A. needed to

use the bathroom. He asserted he looked into the men’s bathroo m to make sure no one was inside, ushered the child in, and stood guard while she use d it. At the conclusion of the interview, a sample of appellant’s DNA was taken. Dep. Zw ick also obtained a sample of I.A.’s DNA and sent each sample along with I.A.’s clo thing from the day of the incident to Ohio Bureau of Criminal Investigation (“BCI”). {¶12} BCI forensic DNA analyst Halle Dreyer analyzed DNA swabs taken from the

inside of I.A.’s underwear and found a mixture of DNA. I.A. wa s the major contributor of the DNA found on the clothing. And, even though there was a re latively significant amount of male DNA (three nanograms), the predominance of I.A.’s DNA s erved to “mask” the male profile. She further noted, however, that appellant could not be excluded as a male6 contributor to the DNA found. Ms. Dreyer concluded that the ma le DNA profile found in the underwear was consistent with appellant and estimated the r arity of the profile is one in 700. She also noted that the presence of three nanograms of male DNA found in the

underwear would be inconsistent with a coincidental transfer of DNA onto the clothing. {¶13} Appellant was indicted on one count of rape, in violation of R. C. 2907.02(A)(1)(b) and (B), a first-degree felony; and one count of gross sexual imposition, in violation of R.C. 2907.05(A)(4) and (B), a third-degree felo ny. Appellant pleaded notguilty. After a competency hearing, I.A. was determined compet ent to testify. The court additionally held a hearing, pursuant to State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio2742, to determine whether the video of an interview that had t aken place at CAC was

admissible and non-violative of the Confrontation Clause. The court determined the statements made by I.A. to Nurse Andel, while hearsay, were mad e for medical diagnosis and treatment and, furthermore, were nontestimonial. Thus, the court concluded the

statements were admissible. {¶14} The matter proceeded to a jury trial after which appellant was found guilty of both rape and gross sexual imposition. With respect to the rape count, the jury made the additional finding that the victim was less than 10 years o ld at the time of the offense. Regarding the gross sexual imposition count, the jury also foun d the victim was less than 13 years old at the time of the offense. The court referred th e matter to the adult probation department for a pre-sentence investigation (“PSI”) and report. At the sentencing hearing, the trial court found that the gross sexual imposition count me rged with the rape count. The trial court sentenced appellant to life imprisonment withou t parole eligibility for the rape offense. Notwithstanding the merger, the court also sente nced appellant to five-7 years imprisonment for the gross sexual imposition count and or dered the terms to be served concurrently. The court also found appellant was a tier III sex offender/child-victim offender and notified him of his registration requirements. He now appeals and assigns four errors for our review. For ease of discussion, appellant’ s first and second assignments of error will be addressed together. They provide: {¶15} “[1.] The convictions were against the manifest weight of the e vidence. {¶16} “[2] There was insufficient evidence against Doak.” {¶17} A “sufficiency” argument raises a question of law as to whether the prosecution offered some evidence concerning each element of th e charged

offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of the crime p roven beyond a reasonable

doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th Dist.). {¶18} Alternatively, “a court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, cons iders the credibility of the witnesses and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” State v. Velazquez , 11th Dist. Ashtabula No. 2018- A-0027, 2018-Ohio-5068, ¶15 citing State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *4-5 (Dec. 23, 1994). “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.8 {¶19} Appellant argues the state failed to meet its burdens of produ ction and persuasion on both the rape and the gross sexual imposition cou nts. We must point out the trial court merged these counts. Moreover, during the sent encing hearing, the prosecutor conceded the counts should merge and made a recommen dation that the court either sentence appellant to life imprisonment without th e possibility of parole or life imprisonment with the possibility of parole in 15 years on the rape count. We shall treat this recommendation as an election and, given this construction , there was no conviction on the gross sexual imposition count. 1 We shall therefore proceed to analyze appellant’s sole conviction of rape to determine whether the state met its burdens. {¶20} Appellant was convicted of rape, in violation of R.C. 2907.02(A )(1)(b), which provides: “No person shall engage in sexual conduct with anoth er who is not the spouse of the offender or who is the spouse of the offender but is liv ing separate and apart from the offender, when * * * [t]he other person is less than thirte en years of age, whether or not the offender knows the age of the other person.” Vaginal i ntercourse is a form of sexual conduct. R.C. 2907.01(A). “Penetration, however slight , is sufficient to complete vaginal * * * intercourse.” Id. {¶21} Appellant first contends his conviction was based on insufficie nt evidence or, alternatively, against the manifest weight of the evidence because there were no scratches or marks on I.A.’s body after the incident. A sexual assault does not automatically require visible physical trauma. Moreover, even t hough the assault occurred in a public restroom on a concrete floor, photos of the restroo m show the floor was

1. In this respect, the trial court’s entry of conviction on t he gross sexual imposition count is void. This issue will be addressed in greater detail infra.9 constructed of smooth concrete. Physical scratches and the lik e would not necessarily appear on a smooth surface. {¶22} Moreover, Nurse Andel testified that, occasionally, if somethin g has gone inside the vagina, a transection, or tear, is visible. She emp hasized, however, such injuries heal quickly and, within a very short time, there woul d be no visible evidence of an injury. And, with respect to child sexual abuse, an examina tion would have to occur within 72 hours to reveal physical injuries. She also testifie d that, under some circumstances, even where there is penetration, a child victim may sustain no injury at all

due to the moist and elastic nature of the tissue. Dr. Paul Mc Pherson, a specialist in child-abuse pediatrics, echoed Nurse Andel’s testimony. The lac k of any physical scratches, marks, or injuries does not militate heavily against the rape conviction. {¶23} Next, appellant argues that despite I.A.’s statement that he pe ed on her, there was no semen or urine on her clothes. I.A. stated, in her interview, that after appellant assaulted her, he peed on her. Dr. McPherson testifi ed that, when a child reports that someone peed on them, it could be either ejaculati on or urination. Even though there was no evidence of semen found on the child’s clot hing, this does not provide a basis for the inference that the incident did not occ ur. To the contrary, one could reasonably infer, to the extent appellant ejaculated or u rinated on I.A. after the assault, he did not do so on her clothing. Under these circums tances, any evidence could be wiped away with no trace of the fluids to test. {¶24} Appellant additionally asserts that because I.A. was subjected to sexual activity by other family members, she may have confused the inc idents. During the interview with Nurse Andel, I.A. stated that she and an adult h ad sex; she later stated the10 adult was her uncle, but she could not remember his name. Late r still, she indicated the perpetrator was her great uncle. And, finally, when discussing what her step brother had done with her, she stated “Uncle Richard” did the same thing. M oreover, appellant does not dispute he took I.A. to the park on the day in question and he took her to the restroom in the park where I.A. stated the sexual conduct took place. {¶25} The jury was free to find I.A.’s statement, given its details a nd the manner in which she spoke about the incident, credible; and, this cred ibility was bolstered by BCI forensic DNA analyst Halle Dreyer’s testimony. Ms. Dreyer stat ed she found three nanograms of male DNA on I.A.’s underwear. Although she could not precisely identify the bodily source from which the DNA profile issued (because of the extreme prevalence of I.A.’s DNA in the sample had the effect of masking or diluti ng the male DNA), she testified three nanograms is a remarkably large amount and cann ot be a result of a casual transfer. In the case of a casual transfer, she testified she would expect to see 0.1 to 0.5 nanograms of DNA. Further, appellant could not be excluded fro m the male DNA profile; indeed, Ms. Dreyer testified, the profile was consistent with a ppellant’s DNA profile with an estimated rarity of that profile of one in every 700. Altho ugh appellant could not be conclusively identified, statistically speaking, this result ex cludes 699 out of 700

individuals. {¶26} Also, when explaining the association of the DNA profile in the underwear to appellant’s DNA, Ms. Dreyer testified: {¶27} So what a DNA profile looks like, imagine if you’ve ever seen anybody hooked up to a heart monitor, lines going across the bo ttom of the screen, the heart beats, it shoots up and it comes back down, that’s what a DNA profile looks like. And where that line shoo ts up is an indicator of what that person’s profile is at that locati on.11 {¶28} What we do is we have that on a sheet of paper and we’re lookin g at 25 different areas of DNA. So essentially we’re seeing that li ne shoot up 25 different times which tells me what the profile is. {¶29} What I do is make a comparison to what is the profile at that l ocation on the evidence and I’ll compare it directly to what is [appell ant’s] profile at that same location. And if it’s a match, if it’s co nsistent with each other, then I move on to the next location. {¶30} In this instance, at 24 out of 25 locations, the profile was co nsistent between the evidence and the profile for [appellant]. {¶31} The 25 th location, the peek was just below our reporting threshold, so it didn’t meet the criteria for me to include it * * *. {¶32} The foregoing provided the jury with a sufficient, credible bas is to conclude appellant was the perpetrator and I.A.’s statement regarding th e incident was not based upon confusion, notwithstanding the separate alleged assault(s) the child endured. {¶33} Finally, appellant suggests that the length of time between the incident and I.A.’s disclosure of the assault militates against the jury’s v erdict. Appellant points out I.A. had ample opportunities to report the incident to her family, a s well as her counselor, who visited the child the day after the incident. Instead, she wai ted some eight months to communicate the assault to a third party. While the delayed di sclosure is an important consideration in weighing I.A.’s allegation, the testimony of b oth Nurse Andel and Dr. McPherson provided a compellin g explanation for the delay. {¶34} Nurse Andel testified it is very common for individuals not to disclose sexual assaults immediately; and, according to her, research indicates that individuals very often never disclose such events. Nurse Andel provided additional co ntext in relation to the interview she conducted with I.A. When asked if she was surpri sed by I.A.’s delayed disclosure, the nurse testified she was not, and elaborated:12 {¶35} Because when I look at the two experiences [I.A.] was talking a bout here, okay, she disclosed readily to her mom about something th at happened with similar age children that she considered a game, okay. So it didn’t surprise me that she was able to talk about that. She didn’t understand it. You know, so when she’s talking to h er mom she tells her about this love connection thing with - - tha t was a game with similar age children. But, you know, when a child - - when something happens with a trusted adult or family member, sometimes it’s much more difficult for a child to talk about th at. They don’t understand it. They know that usually isn’t a game. {¶36} Furthermore, Dr. McPherson testified: {¶37} So, in [I.A.’s] case, the fact that the disclosure about the se xual abuse by an adult family member occurred months afterwards is actually the norm or usual in child sexual abuse cases when you have an adult who is a trusted caregiver, a family member. Tha t always seems unusual to people. But in studies that have been done by Researcher Elliott in 1994 and the Dr. Carol Jenny and her textbook on child abuse, they talk about how up to 50 to 75 per cent of children will delay their discl osure of child sexual abuse b y up to a year and up to 15 percent may delay disclosure five years and beyond. And when we ask adult women were they ever sexually abused as a child and did they ever tell someone about that abu se, up to a third or a half of adult women say they never told anyo ne. And so while we would want these children, especially young children, to tell us right away, in actuality, they delay that disclosure. So it wasn’t surprising to me at all, both from a clinical pers pective, having evaluated 1,500 children, but also from the medical lite rature, and my understanding in childhood development. {¶38} With the foregoing expert testimony in mind, I.A.’s delayed dis closure of the incident would be reasonable, especially because the assault in volved a family member, and thus does not weigh significantly against the jury’s verdic t. {¶39} The state presented sufficient, credible evidence that appellan t engaged in sexual conduct, via vaginal penetration, with I.A., who was les s than 10 years old at the

time of the incident. We therefore hold the state met both its burden of production and persuasion to convict appellant of rape, in violation of R.C. 2 907.02(A)(1)(b). {¶40} Appellant’s first and second assignments of error are without m erit.13 {¶41} Appellant’s third assignment of error provides: {¶42} “The state engaged in improper closing argument.” {¶43} In reviewing a claim of prosecutorial misconduct, a court must determine whether the challenged statements were improper, and if so, whe ther the remarks affected the defendant’s substantial rights. State v. Smith, 87 Ohio St.3d 424, 442 (2000). A conviction will not be reversed because of prosecutorial misc onduct, however, unless it so taints the proceedings that a defendant is deprived of a fair trial. Id. In evaluating conduct, we are mindful that prose cutors are granted wide latit ude in closing arguments.

State v. Rahman , 23 Ohio St.3d 146, 154 (1986). Furthermore, this court will consider the effect of any improper statement in the context of the enti re trial. State v. Keenan , 66 Ohio St.3d 402, 410 (1993). {¶44} Appellant did not object to any of the prosecutor’s statements; we accordingly review the arguments under a plain error standard. To establish plain error, appellant must demonstrate: (1) there was an error; (2) the err or was obvious; and (3) the error affected his substantial rights. State v. Barnes , 94 Ohio St.3d 21, 27 (2002). A reversal on the ground of plain error is not warranted unless “ but for the error, the outcome of the trial clearly would have been otherwise.” State v. Long , 53 Ohio St.2d 91 (1978), paragraph two of the syllabus. {¶45} Appellant identifies three categories of allegedly improper sta tements advanced by the prosecutor: (1) expression of a personal opinio n regarding witness credibility; (2) comments regard ing appellant’s decision to rem ain silent; and (3) alleged appeals to God. He provides various quotes, taken from the sta te’s closing argument, but fails to advance arguments how the alleged errors are obvio us, let alone clearly14 discuss how they affected his substantial rights. After settin g forth the law relating to prosecutorial misconduct and citing cases which he presumably f inds analogous, he simply draws the conclusions that: (1) a prosecutor can comment upon witness credibility, but may not express his or her opinion; (2) the prosecutor’s co mments on appellant’s silence rendered the trial fundamentally unfair; and, (3) refer ences to God, appealing to a “higher power,” are unwarranted and “just plainly improper.” As appellant fails to fully engage in the plain error analysis, his arguments lack merit. In the interest of justice, however, we shall address appellant’s points in turn. {¶46} An attorney should avoid expressing personal beliefs or opinion s with respect to the guilt of the accused, as well as the credibility of witnesses. State v. Lott , 51 Ohio St.3d 160, 166 (1990). This is particularly true in th e case of a prosecutor in a

criminal case. Rahman , supra. That said, it is not improper for a prosecutor to comment on the evidence in his closing argument and to state the approp riate conclusions to be drawn therefrom. Accordingly, a prosecutor may comment fairly on a witness’ credibility based upon his or her in-court testimony. State v. Keene, 81 Ohio St.3d 646, 666 (1998). “Prosecutors[, however,] may not invade the realm of t he jury by, for example, stating their personal beliefs r egarding guilt and credibility, or alluding to matters outside the record.” (Internal citations omitted.) State v. Baker, 159 Ohio App.3d 462, 2005-Ohio45, ¶19 (2d Dist.) {¶47} Appellant first points to an aspect of the closing argument whe re the prosecutor is reviewing the testimony of I.A.’s aunt and grandm other. Both I.A.’s grandmother and her aunt were present during I.A.’s bath follow ing the incident. I.A.’s aunt testified that appellant “stuck his hand on her hard down there.” I.A.’s grandmother15 did not relay this statement during her testimony. It is within this context that the prosecutor stated he “was shocked when [I.A.’s aunt] said what she said.” This was a comment upon the evidence and did not urge the jury to draw any specific conclusion. We do not deem the prosecutor’s statement in any way problemati c. {¶48} The prosecutor also noted appellant is the brother of I.A.’s gr andmother. He stated that “it’s her brother, she probably doesn’t want to believe he did this and she’s gonna get up there on the stand and testify in a way that she b elieves, because she believes her brother.” It was in this context that the prosecu tor stated he did not “fault [I.A.’s grandmother] because I think [she] believes her own lie s.” Characterizing I.A.’s grandmother as one who lies is problematic because the assessme nt reflects the prosecutor’s personal opinion regarding her credibility. Never theless, I.A.’s grandmother testified that when she found out appellant, who had been drink ing, left the home with I.A., she became concerned for I.A.’s safety. Specifically, sh e worried about the possibility of an accident. She also testified she was concern ed about her brother’s safety because she was under the impression that a group of neighbors, after hearing appellant left with I.A., was going to find him and beat him. She additi onally testified she thought I.A. was crying when she returned with appellant because the co mmotion and the police presence at the residence. This testimony was simply perspecti val. Because the thrust of her testimony was the expression of concern for both appella nt and the victim, it is unclear what I.A.’s grandmother would be lying about. In this respect, we fail to see how the prosecutor’s improper comment had any bearing on the jury’s ability to fairly consider

the evidence.16 {¶49} Next, appellant cites the following comment by the prosecutor: “But when you go back and focus on reality, not fantasy land, not made-up land, not defense attorney land, and go to what really happened in this case, you’re going to fill up this side of the column with - - you know what, that fact sounds like it, becaus e it happened to her.” The foregoing remark was made in relation to the defense’s theory t hat the DNA evidence found in I.A.’s underwear may be a result of coincidental trans ference from appellant to the child or may be a different male’s DNA altogether. Prior t o making this statement, the prosecutor highlighted the DNA evidence demonstrating 24 out of 25 indicators in the sample matched appellant’s profile. He further underscored the forensic testimony that

the amount of the DNA found in the underwear would be inconsist ent with a transfer. {¶50} During closing argument, the state is afforded wide latitude to convincingly advance its strongest arguments and positions. See State v. Phillips , 74 Ohio St.3d 72, 90 (1995); still, the prosecutor must avoid going beyond the ev idence presented in order

to obtain a conviction. See, e.g ., State v. Smith , 14 Ohio St.3d 13, 14 (1984). “[P]rosecutors must be diligent in their efforts to stay within the boundaries of acceptable argument and must refrain from the desire to make outlandish re marks, misstate evidence, or confuse legal concepts.” State v. Fears , 86 Ohio St.3d 329, 332 (1999). While the prosecutor’s comment was somewhat hyperbolic, it was made in the context of reviewing what the state’s scientific evidence revealed and, al beit with some histrionics, essentially emphasized the logical maxim that possibility does not equate with probability.

We see no error in the remark.17 {¶51} Next, appellant references several allegedly problematic commen ts relating to appellant’s pre-arrest silence. The remarks at issue occurr ed in the following argument: {¶52} If you look at his half hour long video, we’re supposed to beli eve that your great niece has accused you of inappropriate touching, tha t the Chief Detective of the Portage County Sheriff’s Department is g oing to just tell you that. Tell you, well, she made some allegatio ns. You heard about the other stuff. Yeah. She’s now alleging that wh en you went to that park there was inappropriate touching. And you’re gonna get this. I didn’t touch her. No. {¶53} If you’re accused and it’s your niece and the Detective uses th e term inappropriate touching, would the more appropriate response be what did she say? What did she say I did? That never came out of his mouth. {¶54} Your gotta look at that video and decide if that video lends corroboration to [I.A.] lied or because it happened to her. He doesn’t even ask any questions of Detective Johnson about what she said

. What’s the theory? What inappropriate conduct did she say I di d? He doesn’t ask. Because he knows. It’s not a hop, skip and a j ump from there while he’s sitting there all quiet. {¶55} * * * {¶56} No, he’s sitting there quiet because his wheels are turning. H is wheels are turning. * * * Like he said in the beginning, prove it. He’s waiting to see what proof they have. That’s why he’s so quiet and that’s why he never asks what does she say. That speaks volume s, too. His demeanor, the way he acted when he’s notified, when h e’s told what it is, ask yourselves what column this fits under. I s it because [I.A.] lied or is it because it fits - - sounds like it happened. {¶57} In support of his position, that the foregoing was involved imp roper commentary on his pre-arrest silence, appellant cites State v. Leach , 102 Ohio St.3d 135,

2004-Ohio-2147. In Leach , the defendant stated he wished to consult with an attorney prior to meeting with police. In its case-in-chief, the state presented testimony that the defendant, who had not yet been arrested or Mirandized , remained silent and asserted18 his right to counsel. The Supreme Court concluded the testimon y was clearly meant to permit the jury to infer the defendant’s guilt. The Court held : The “[u]se of pre-arrest

silence in the state’s case-in-chief would force defendants eit her to permit the jury to infer guilt from their silence or surrender their right not to testif y and take the stand to explain their prior silence.” Id. at ¶31. {¶58} In this case, appellant met willingly with police without invok ing his right to counsel. Moreover, the prosecutor’s comments were not obviousl y directed at appellant’s pre-arrest silence. Indeed, appellant denied the allegations. Rather, the prosecutor’s points relate more to appellant’s demeanor and the arguable pec uliarity of appellant’s reticence. We discern no obvious error in the content of the p rosecutor’s remarks. {¶59} Finally, appellant cites to the prosecutor’s purported appeal t o a “higher power.” The prosecutor stated as follows: “And God bless Detec tive Johnson for doing what he does.” And “Thank God he thought about saving those cl othes.” We fail to see how any reasonable person would c onclude these statements are p roblematic. The use of the term “God” in these statements is idiomatic. They are i nterjections or commonly used expressions employed to express gratitude or relief. We p erceive no error in the prosecutor’s statements. {¶60} Appellant’s third assignment of error is without merit. {¶61} “The trial court erred by admitting into evidence the statement s made by I.A.

to Melinda Andel. These statements were testimonial and violat ed Doak’s Sixth Amendment right to confront and cross-examine the witnesses aga inst him. It also violated Section 10, Article I of the Ohio Constitution.”19 {¶62} Under this assignment of error, appellant argues the trial cour t erred in admitting the CAC video of I.A.’s interview with Nurse Andel be cause, he claims, there was no applicable hearsay exception and its admission violated his right to confront I.A. {¶63} Although found competent to testify after an in-camera hearing with the court, I.A. was not called to testify. Instead, the state subm itted the video interview. A hearing was held, pursuant to State v. Arnold , supra , after which the trial court concluded that the out-of-court statements in the interview, while hearsa y, were excepted, pursuant to Evid.R. 803(4), which provides: {¶64} Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general char acter of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. {¶65} The trial court found I.A.’s statements were made for medical d iagnosis and treatment, were non-testimonial, and thus were admissible witho ut violation of Ohio’s hearsay rule or the Confrontation Clause of the United States C onstitution. In particular,

the trial court determined: {¶66} Ms. Andel testified that her purpose for conducting the intervi ew was to gather information to protect the health and welfare of the child; to determine if she was at risk for further injury; to determine w hat, if any, physical tests and/or examinations need to be completed; whether or not there existed t he possibility and need for testi ng for sexually transmitted diseases; and to accurately record the information to forward to the physician to minimize the number of interviews conducted which could further traumatize the child. {¶67} This court has previously held that a de novo standard of revie w applies to determine whether evidence was inadmissible hearsay. See Jack F. Neff Sand & Gravel, Inc. v. Great Lakes Crushing, Ltd. , 11th Dist. Lake No. 2012-L-145, 2014-Ohio-2875, ¶23.20 Here, there is no dispute that the evidence was hearsay; rather , the question is whether Evid.R. 803(4) applies to except the evidence from the rule exc luding inadmissible hearsay. In concluding the exception applies, the trial court was required to evaluate

facts and render factual determinations in order to arrive at i ts decision that I.A.’s statements were elicited for purposes of a medical diagnosis or treatment. Generally, an appellate court accepts a trial court’s factual determinations if they are supported by competent, credible evidence. See Willoughby v. Dunham , 11th Dist. Lake No. 2010-L068, 2011-Ohio-2586, ¶10. {¶68} In Arnold , supra , the Supreme Court of Ohio specifically discussed forensic

interviews conducted with sexual-abuse victims at child advocac y centers. The court concluded a social worker who interviewed a child was acting as an agent of the police while conducting interviews, and that under the “primary purpos e” test, the interview’s primary purpose was to further the state’s investigation, not t o meet an ongoing

emergency. Id. at ¶35-36. As a result, some of the child’s statements about t he alleged crime, like descriptions of the defendant’s genitals and the fa ct that the defendant had shut and locked a bedroom door before raping her, were testimon ial in nature and their admission without prior ability fo r cross-examination violated the Confrontation

Clause. Id. at ¶34. The court also held, however, that other statements e licited during the forensic examination, like the sexual acts the defendant perfor med, were non-testimonial and were admissible because they were necessary for medical dia gnosis and

treatment. Id. at ¶37-38 and 41. {¶69} Here, it is unclear whether I.A. was referred to CAC by law enf orcement or child protective services. There is nothing, however, that ind icates Nurse Andel was21 directly influenced or prompted by law enforcement to elicit in formation for purposes initiating or assisting in a criminal investigation. Nurse And el testified that CAC has a multi-disciplinary team approach, which includes law enforcemen t, prosecution, mental health agencies, and children protective services; she addition ally testified that CAC is a “child-friendly, neutral, safe place for children to come to ta lk about what might or might not have happened.” She testified that her purpose as an inter viewer of a potential child sex-abuse victim is to obtain information regarding the alleged abuse and, in light of this information, determine whether the child is medically healthy. She also emphasized that one of her goals is to make the child aware that he or she is s afe and out of harm’s way.

She testified she is trained to elicit information from a victi m by asking non-leading and non-threatening questions. If the child is responsive and he o r she provides details of the abuse (or even if there is suspicion that abuse occurred), the Nurse, in conjunction with Dr. McPherson, conducts a physical examination to determine whe ther the child has any physical injuries or sexually transmitted infections or disease s. {¶70} It is additionally worth noting that the interview was not conducted based

upon the underlying allegation against appellant; rather, I.A. was b eing interviewed at CAC for allegations of sexual conduct which allegedly occurred between I.A. and her step brother in Summit County. In the course of discussing the deta ils of that incident, I.A. spontaneously volunteered information relating to the underlyin g incident, which involved an adult family member. This disclosure prompted additional con cerns regarding I.A.’s physical and emotional well-being because the initial allegatio ns involved other children, which Nurse Andel noted could be, from I.A.’s young perspective , viewed as more of a game. The underlying allegation, however, focused upon an adul t family member, a22 person of potential authority and greater influence. These poi nts, in conjunction with the potential for more significant physical harm due to the size di sparity, triggered additional concerns for I.A.’s medico-psychological health. {¶71} In light of the testimony as well as the content of the intervi ew and the manner in which Nurse Andel conducted the same, we conclude the re is competent, credible evidence to support the trial court’s conclusion that the primary purpose of the interaction was for medical diagnosis and treatment. {¶72} Appellant’s fourth assignment of error lacks merit. {¶73} Although our disposition of appellant’s fourth assignment of er ror concludes our analysis as it pertains to the matters raised in his brief, a review of the record demonstrates two additional issues must be addressed sua sponte . First, the judgment on sentence must be reversed because the court merged the two c ounts, yet proceeded to sentencing on each count. {¶74} In State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, the Ohio Supreme Court stated: {¶75} R.C. 2941.25(A)[, Ohio’s merger statute,] clearly provides that there may be only one conviction for allied offenses of similar import. Because a defendant may be convicted of only one offense for su ch conduct, the defendant may be sentenced for only one offense. T his court has previously said that allied offenses of similar impor t are to be merged at sentencing. See State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶43; State v. McGuire (1997), 80 Ohio St.3d 390. Thus, a trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import. Underwood , supra , at ¶26. {¶76} In this case, the state acknowledged at the sentencing hearing that the counts should be merged. As indicated in our analysis of appel lant’s first and second assignments of error, the prosecutor outlined the sentencing op tions for the rape count,23 but did not discuss a sentence for the gross sexual imposition count. We consequently concluded this operated as an election on the rape count. Notwi thstanding the court’s agreement that the counts must merge, it nevertheless sentenced appellant on both, imposed a five-year term of imprisonment for the gross sexual i mposition, and ordered the counts to be served concurrently. This was error. Accordi ngly, the case must be reversed and remanded for resentencing. {¶77} Moreover, the trial court erred by not imposing post-release co ntrol and by failing to provide notifications contained in R.C. 2929.19(B)(2 )(c) and (e). At the time appellant was originally sentenced, R.C. 2967.28(B) provided: “Each sentence to a prison term for a felony of the first degree * * * shall includ e a requirement that the offender be subject to a period of post-release control imposed by the p arole board after the offender’s release from imprisonment.” The law has since been amended by S.B. 201, effective March 21, 2019, and now does not require such advisem ents to defendants sentenced to a term of life imprisonment. The change in law, h owever, does not apply to this case because S.B. 201 applies to all first-and second-degr ee felonies committed on or after that date. Accordingly, the trial court was required to impose and provide the requisite advisements. See State v. Peace , 11th Dist. Portage No. 2017-P-0037, 2018- Ohio-3742, ¶32 citing State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio2671, ¶20 (“Upon sentencing a defendant, a court must impose p ost-release control for first-degree felonies and felony sex offenses even when the sen tence is life in prison without parole.”) Its failure to do so was error.24 {¶78} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is affirmed in part, reversed in p art, and remanded for resentencing.

MARY JANE TRAPP, J., concurs, TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion.

_______________________ TIMOTHY P. CANNON, P.J., concurring. {¶79} I respectfully concur in the judgment but write to clarify a po int with regard to the fourth assignment of error. As noted, the fourth assign ment of error addresses the hearsay statements of the victim made during a video interview by the nurse. The assigned error also alleges a violation of the Sixth Amendment right to confront and crossexamine witnesses. In the body of the brief, however, appellan t essentially only argues the hearsay aspect of the statements. {¶80} Defense counsel objected to the use of the video statements at trial. A motion was made, and the defense argued: “It is our position * * * that what she says on that videotape is testimonial and it would be improper to allow that unless I have the opportunity to cross-examine her.” The trial court properly co nducted a hearing outside the presence of the jury and did two things . First, it allowed the nurse to testify regarding the purpose of the video interview. Second, the trial court in terviewed the seven-year-old victim and determined that she was competent to testify. Thus, it appears the state was intending to call the victim to testify. At the conclusion of the hearing, the defense argued the statements were “testimonial in nature and they should be l eft out unless I have the25 ability to cross-examine her.” I agree with the majority that we must defer to the trial court’s factual findings as to whether the statements were test imonial. {¶81} I write separately about the portion of the fourth assignment o f error that addresses the Sixth Amendment right to confront and cross-exami ne. At trial, while the defense objected to the admission of the video statement, the r ecord does not indicate that the defense requested to cross-examine the victim. This m ay well have been trial strategy, as the defense may not have wanted this seven-year-ol d victim to testify live before the jury. Because there was no request at trial to make the victim available for cross-examination, we do not reach a conclusion here about whet her appellant should have been permitted to do so.