[Cite as State v. Strader , 2022

- Ohio

- 4470.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. W. Scott Gwin, P.J.

Plaintiff

- Appellee : Hon. John W. Wise, J.

: Hon. Patricia A. Delaney, J.

- vs

- :

: Case No. 2021CA00152

:

CONRAD STRADER :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of

Common Pleas, Case No. 2020CR1455

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: December 12, 2022

For Plaintiff

- Appellee: For Defendant

- Appellant:

KYLE L. STONE AARON KOVALCHIK

STARK COUNTY PROSECUTOR 116 Cleveland Ave. NW, Suite 808

Canton, OH 44702

TIMOTHY E. YAHNER

110 Central Plaza South, Suite 510

Canton, OH 44702

- 1413Stark County, Case No. 2021CA00152 2

Delaney, J.

{¶1} Defendant

- Appellant Conrad Strader appeals his November 17, 2021

conviction and sentence by the Stark County Court of Common Pleas. Plaintiff

- Appellee

is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

Indictment

{¶2} On August 19, 2020, the Stark County Grand Jury indicted Defendant

Appellant Conrad Strader on one count of gross sexual imposition, a felony of the third

degree in violation of R.C. 2907.05(A)(4)(C)(2); and one count of voyeurism, a felony of

the fifth degree in violation of R.C. 2907.08(C). The indictment alleged the criminal

conduct occurred on or about January 1, 2015 through September 24, 2015 when the

alleged female victim, born in late September 2003, was a minor and less than 13 years

of age. S.S., the alleged female victim, is Strader’s daughter.

{¶3} Strader entered a not guilty plea to the charges. The matter was set for a

jury trial.

Motions in Limine

{¶4} Strader filed a motion in limine on September 22, 2021 moving the trial court

to exclude the testimony of Carrie Schnirring regarding statements made to her by S.S.

Ms. Schnirring, a psychology assistant with Lighthouse Family Center, conducted a

sexual abuse assessment and trauma evaluation on S.S. in August and September 2019.

Strader argued S.S.’s statements to Ms. Schnirring were testimonial in nature and their

admission at trial without a prior opportunity for cross

- examination would be a violation of

the Confrontation Clause. The State responded that Ms. Schnirring was an expert inStark County, Case No. 2021CA00152 3

childhood trauma. Her evaluation of S.S. was conducted for the purpose of medical

diagnosis on behalf of Stark County Children Services, not a forensic interview with S.S.

The trial court held a hearing on the motion and by judgment entry filed October 19, 2021,

denied Strader’s motion in limine.

{¶5} On October 21, 2021, the State filed a motion in limine to exclude evidence

of an alleged incident of sexual contact involving S.S. and a male neighbor while they

were both juveniles. Strader had listed the mother of the neighbor child as a potential

witness. The State explained in its motion that it believed the witness was going to testify

that S.S. told Strader the male neighbor child had unwanted sexual contact with her.

Strader then talked to the mother of the male neighbor child. There was no further

touching after Strader spoke with the mother and no additional action was taken. This

event allegedly occurred during the time the State claimed Strader committed the indicted

offenses. The State contended the incident was irrelevant, not proven to be a false

allegation, and not admissible at trial. It was going to be used to attack the credibility of

S.S. but had no probative value as to the allegations against Strader. The State noted

that Strader did not list the male neighbor allegedly involved in the incident as a witness

at trial.

{¶6} Strader did not file a response to the State’s October 21, 2021 motion in

limine.

Jury Trial

{¶7} The jury trial commenced on October 26, 2021. The following facts were

adduced at trial.Stark County, Case No. 2021CA00152 4

The State’s Motion in Limine

{¶8} Prior to jury selection, the trial court heard arguments on the State’s motion

in limine as to the exclusion of testimony regarding S.S.’s accusation of sexual conduct

by the neighbor child. The State reiterated its arguments in the motion in limine to the trial

court. Counsel for Strader argued that the mother of the neighbor child was being called

as a character witness for the defense. (T. 8). She was also going to provide reputation

evidence for S.S.’s honesty. (T. 8). Counsel stated he was going to present evidence that

after Strader talked with the mother of the neighbor child about S.S.’s accusation of the

neighbor’s sexual contact, S.S. told her father that she lied about the sexual contact by

the child and wanted to continue playing with the child. (T. 9). The mother’s testimony

was relevant because it went to the character of the accused, the character of S.S., and

that S.S. admitted she lied about an incident that allegedly occurred during the time she

claimed the events occurred with her father. (T. 10).

{¶9} The State responded to Strader’s presentation that S.S. denied ever

recanting her allegation against the neighbor child. (T. 10

- 11).

{¶10} The trial court preliminarily granted the motion in limine but stated it would

revisit the issue when other testimony was heard. (T. 12). The trial court did not think the

evidence was relevant and not permissible under Evid.R. 608 unless the proper

foundation was laid. (T. 12). Counsel for Strader stated he would proffer the information

on the record. (T. 12).

The Family

{¶11} Strader and his wife have five biological children, including his eldest

daughter, S.S. S.S. was born in late September 2003 and was 18 years old at the time ofStark County, Case No. 2021CA00152 5

trial. At the time of trial, Strader’s two sons were 16 and 2 years old and his two other

daughters were 15 and 13 years old.

{¶12} The family resided together in a residence located in Canton, Ohio. The

three sisters shared a room in their Canton home. Their bedroom had a bunk bed, with a

twin

- sized bunk bed on top and a full

- sized bed on the bottom bunk. There were three

bathrooms located in the home. The second

- floor bathroom and the basement bathroom

both had showers.

{¶13} S.S.’s mother separated from Strader in October 2016 and moved out of

the family home. Strader’s wife returned to live in the family home in 2018.

{¶14} While Strader and his wife were separated, Strader’s two adult sisters

assisted him with the children. The family was also involved with the Lighthouse

Ministries, a local nonprofit religious organization.

S.S. Testimony Regarding the Alleged Sexual Abuse

{¶15} S.S. testified that her father engaged in four incidents of sexual abuse.

{¶16} The first incident occurred when S.S. was in the seventh grade. In the

seventh grade, S.S. said she would have been 11 or 12 years old. S.S. testified that late

one night, she was in her bedroom, laying in the bottom bunkbed, and playing with her

tablet. She said she was alone in the bed. She was wearing a t

- shirt and no bra. Strader

came into her bedroom and S.S. pretended to be asleep because it was past her bedtime.

Strader got into her bed, put his hands under her shirt, and touched her chest.

{¶17} S.S. further testified that sometimes when she woke up, Strader was in her

bedroom. He would occasionally look through the laundry basket in her room. S.S.

testified she once found a pair of her uncleaned underpants on the shelf in the bathroom.Stark County, Case No. 2021CA00152 6

{¶18} S.S. testified the second incident occurred when she was in the seventh

grade at the end of the school year, when she would have been 12 years old. She had

box braids in her hair that did not require washing, but Strader told her that her aunt had

told him how to wash her hair and he would assist her. S.S. remembered being in the

shower while Strader washed her body and touched her private areas with a rag. He was

washing her vaginal area when she said “ow” and then he stopped. He told her to hold

the rag to her face, but S.S. did not close her eyes after she covered her face. She faced

the showerhead with the rag over her face and her eyes open. Out of the corner of her

open eye, she saw Strader holding his phone near his face and pointing it towards her.

{¶19} The second

- floor bathroom was notable because there was a circular hole

in the wall shared by the bathroom and Strader’s bedroom. The hole in the wall was

observed by Detective James P. Lile, a juvenile abuse detective with the City of Canton

Police Department. The shower in the second

- floor bathroom could be viewed through

the hole in Strader’s bedroom. When the bathroom door was open, the hole could not be

seen in the bathroom. A piece of duct tape also covered the hole. S.S.’s siblings were

aware of the hole in the bathroom wall, but testified it was covered with duct tape.

{¶20} S.S. testified a third incident occurred during the last half of her eighth

- grade

year. She was sitting in a green child

- sized chair at a desk in the dining room. She was

wearing headphones, but nothing was playing on the headphones. Her father kept coming

in and out of the dining room. She then heard strange breathing behind her and felt

something on the back of her neck. S.S. testified that she was “a hundred percent sure

that it was [Strader’s] penis.” (T. 219). S.S. froze and then she heard Strader walk backStark County, Case No. 2021CA00152 7

into the living room. She did not turn around, but then she heard heavy breathing coming

from the living room.

{¶21} S.S. testified about a fourth incident involving the basement bathroom when

she was freshman in high school. Strader testified that he set up video cameras in the

house for security purposes. Strader had shown S.S. the application on his cell phone

that permitted him to view the video feed from the cameras. S.S. testified that one day

when she returned from school, her father informed her they were all to use the basement

bathroom to shower to save time. S.S. did not want to use the basement bathroom

because it wasn’t clean. S.S. said that Strader insisted that she take a shower then, after

which she complied. While in the basement bathroom, S.S. observed a video camera

facing the shower. She covered the camera. Strader then came down the bathroom and

told S.S. to uncover the camera, so he could make sure she was okay. S.S. testified that

she felt weird but continued with her shower, with the shower curtain open and the

uncovered camera facing the shower.

Prior Accusation Against a Neighbor Child

{¶22} During cross

- examination of S.S., counsel for Strader asked her, “Now, you

did confide in [K] about another incident that occurred with you and the neighbor boy,

didn’t you?” (T. 261). The State objected, which the trial court sustained. (T. 261). Counsel

next asked S.S., “Did you confide in your dad about another incident with a neighbor

boy?” (T. 262). The State objected, which the trial court sustained and asked counsel to

approach. (T. 262).

{¶23} While at sidebar, the State argued to the trial court that its motion in limine

was not limited to the testimony of the mother of the male neighbor child. (T. 262). It hadStark County, Case No. 2021CA00152 8

requested an order “precluding any testimony about any prior allegations that were never

proven false, never investigated with incidents of sexual contact with someone other than

Mr. [Strader].” (T. 262). The trial court agreed and stated,

I think that is the issue; that there is no evidence that these are false

allegations. I agree that if there was some evidence that there were false

allegations, we’d be having a different conversation, but...

(T. 262). Counsel for Strader described the allegations S.S. made about the neighbor

child. The trial court asked how counsel knew the allegations were false. (T. 263). Counsel

stated that S.S. admitted afterwards to Strader and the mother of the male neighbor child

that her accusation against the child were false. (T. 263). The State said S.S. would deny

her accusation was false. (T. 263). The State also noted that Strader did not have the

neighbor child listed as a witness. (T. 266). The trial court sustained the State’s objection

and did not permit counsel for Strader to conduct a cross

- examination as to S.S.’s

accusation against the neighbor child. (T. 267).

{¶24} Counsel for Strader made a proffer of the evidence he would have

presented had the trial court overruled the State’s objection. (T. 285). In his proffer,

counsel argued that when S.S. was approximately 13 years old, she made an allegation

to Strader that the male neighbor child had put his hands down her pants and tried to kiss

her. (T. 285). Strader then told the mother of the neighbor child what S.S. had told him.

(T. 286). When Strader went back to S.S., she told him she lied about the incident. (T.

286). Counsel argued the information was relevant because she disclosed an alleged

sexual assault and then admitted it was not true. (T. 286).Stark County, Case No. 2021CA00152 9

{¶25} The State countered that if the trial court found the evidence relevant, it was

required to balance the probative value versus the prejudicial effect, and in this case, the

evidence was not probative. (T. 287). Further, if asked, S.S. would state the sexual

assault occurred. (T. 287). The trial court ruled:

Okay. And the Court stands by its ruling that the evidence does not

demonstrate that this was a false accusation. Moreover, it does appear that

sexual activity was involved, which would implicate 2907.05. That’s the

statute specifically with regard to GSI. Also think it would be, under 403,

overly prejudicial and goes to more than just the truthfulness but collateral

issues that would confuse the jury. So the Court stands by its ruling with

regard to any possible false allegations, again, as to whether or not they

were false has not been established.

(T. 289).

Revelation of the Sexual Abuse Allegations

{¶26} S.S. testified that she told a middle school friend about the incidents with

her father. She also told a high school friend. In 2019, one of the friends told an adult

about S.S.’s allegations. A report was made to Child Protective Services with the Stark

County Children Services on June 22, 2019. Det. Lile received a report of the allegations

on June 24, 2019. A forensic interview with S.S. was conducted on June 26, 2019. S.S.’s

female siblings were forensically interviewed on July 29, 2019. Ms. Hetrick of Children’s

Services did not find any evidence the two younger girls had been abused or neglected.

The siblings did not witness anything inappropriate by their father against S.S.Stark County, Case No. 2021CA00152 10

{¶27} Det. Lile went to the family home with another Canton City detective and

Ms. Hetrick. Det. Lile observed the hole in the second

- floor bathroom wall. He did not see

any evidence of cameras in the basement bathroom. He collected a cell phone from S.S.

that used to be Strader’s cell phone. The cell phone did not contain a video recording of

S.S. There was a photograph on the cell phone of a pair of black underwear with white

spots on them. Det. Lile did not interview Strader. He did not interview the friends that

S.S. confided in.

{¶28} While the investigation was pending, the Stark County Children Services

asked Strader to voluntarily move out of the family home. Strader stayed in the home and

in July 2019, S.S.’s family asked an employee of the Lighthouse Ministries to care for S.S.

Stark County Job and Family Services filed a complaint for temporary custody of S.S. and

protective supervision of S.S.’s siblings. The Lighthouse Ministries’ employee was

eventually awarded legal custody of S.S. S.S. testified that her father, mother, siblings, or

aunts have not contacted her since July 2019.

Trauma Evaluation

{¶29} From August 2019 to September 2019, S.S. met with Carrie Schnirring, a

psychology assistant with the Lighthouse Family Center, for a sexual abuse assessment

and trauma evaluation after a referral by the Stark County Children Services. The trial

court qualified Ms. Schnirring as an expert. Counsel for Strader did not object to Ms.

Schnirring’s qualification as an expert.

{¶30} Ms. Schnirring’s first session with S.S. was on August 22, 2019 when she

was 16 years old. In her first session, Ms. Schnirring noticed that S.S. had a very flat

affect, causing Ms. Schnirring to question whether S.S. had depression. She noticed thatStark County, Case No. 2021CA00152 11

S.S. was frustrated about meeting with her. S.S. appeared confused and conflicted. She

shared with Ms. Schnirring that she loved her father and had no intention of reporting the

sexual abuse, but when the information did come out, S.S. was angry that her father did

not “own up to it,” and instead made her out to be a liar. (T. 398). This was significant to

Ms. Schnirring because it indicated to her that S.S. did not have an ulterior motive for

making allegations against her father. After this testimony, counsel for Strader objected

on the basis that Ms. Schnirring was expressing her opinion about S.S.’s credibility. (T.

400). The trial court had previously ruled that Ms. Schnirring was not permitted to express

her opinion as to the child’s credibility; however, the trial court overruled the objection in

this instance because Ms. Schnirring was using the information to make a medical

diagnosis. (T. 402). The State followed up with Ms. Schnirring, asking her if her role in the

assessment was to determine whether the sexual abuse occurred. Ms. Schnirring

answered that her role was to look at the disclosure and make clinical decisions about

whether the child needed trauma therapy. (T. 402

- 403).

{¶31} When performing her assessment, Ms. Schnirring looked for idiosyncratic

details, contextual details, and sensory motor details of the child’s disclosure to assist her

in understanding that the child experienced the trauma as opposed to being coached

about it. As to each of the incidents, S.S. told Ms. Schnirring in her later sessions specific

idiosyncratic details such as that she was playing with her tablet after her bedtime when

the first incident occurred. S.S. was afraid of getting in trouble for staying up past her

bedtime, so she hid the tablet and pretended to be asleep when her father came into the

room.Stark County, Case No. 2021CA00152 12

{¶32} Ms. Schnirring testified about the cost

- benefit analysis that child victims of

sexual abuse will engage in when determining whether to disclose the abuse. The child

will evaluate the pros and cons of disclosure and how disclosure will affect their lives. In

the case of S.S., Ms. Schnirring testified her assessment showed that S.S. had engaged

in that analysis and determined the cost of disclosing was too high. S.S. was angry at her

friends for disclosing the incidents she shared with them and after their disclosure, the

events that S.S. was afraid of occurred even though she wasn’t the one who told. S.S.

maintained that the incidents occurred even after the negative repercussions occurred

such as that S.S. was placed in foster care by her family.

{¶33} Ms. Schnirring diagnosed S.S. with post

- traumatic stress disorder and

recommended monitoring her for depression. She recommended counseling for S.S. and

specific trauma therapy.

Strader’s Testimony

{¶34} After the trial court denied the defense’s Crim.R. 29 motion, Strader

presented his case. Strader testified in his own defense. At the time of the hearing,

Strader was 37 years old.

{¶35} He testified that when his wife left in October 2016, his sisters helped with

the children. His wife returned to the home in 2018. Strader testified that he accidently

created the hole in the bathroom wall in 2017 when he was moving bedroom furniture

after his wife left. Strader’s sister testified there was a hole in the bathroom wall in 2016.

Strader denied ever using the hole in the wall to spy on S.S. while she used the second

floor bathroom.Stark County, Case No. 2021CA00152 13

{¶36} Strader described his daughters’ bedroom with the top bunk and full

- sized

bed in the bottom bunk. The youngest child was supposed to sleep in the top bunk, but it

was too hot in the top bunk, even with the use of fans and an air conditioner. The three

girls therefore slept together in the bottom bunk. He stated that he checked on his children

when they were sleeping because once, one of the children had stopped breathing. He

denied ever coming into bed with S.S. and placing his hand under her shirt while she was

sleeping. He said there was no room in the bed with the three girls.

{¶37} Strader admitted there were cameras in the home for security purposes, but

he denied there was a camera in the basement bathroom. He described the downstairs

bathroom as unusable due to mold. He testified that S.S.’s allegation about the incident

in the basement bathroom was not true.

{¶38} As to the incident in the dining room, Strader testified that he was too short

and overweight to lay his penis on S.S.’s neck while she was sitting in the child

- sized

chair.

{¶39} Strader did not offer any testimony as to the incident that allegedly occurred

in the second

- floor bathroom.

Character Witnesses

{¶1} The defense offered the testimony of S.S.’s siblings, wife, Strader’s adult

sisters, and friends. Family members testified that the young sisters often slept in the

bottom bunk together. One daughter testified that she was a light sleeper and would have

woken up if she felt her father getting into the bed. When S.S. was in seventh grade, her

two sisters were in elementary school and approximately seven and nine years old.Stark County, Case No. 2021CA00152 14

{¶2} The witnesses testified that they did not observe anything unusual about

S.S.’s behavior when the incidents allegedly occurred. S.S. did not tell them about the

incidents with Strader.

Jury Verdict

{¶3} At the conclusion of the defense’s case, Strader renewed his motion for

dismissal for Crim.R. 29. The trial court denied the motion.

{¶4} On October 29, 2021, the jury found Strader guilty on one count of gross

sexual imposition and one count of voyeurism. The trial court deferred sentencing to

November 5, 2021.

Sentencing

{¶5} The trial court conducted the sentencing hearing on November 5, 2021. Via

sentencing entry filed on November 17, 2021, the trial court sentenced Strader to a prison

term of 36 months on the charge of gross sexual imposition and a prison term of 12

months on the charge of voyeurism. The sentences were ordered to be served

concurrently.

{¶6} It is from this judgment that Strader now appeals.

ASSIGNMENTS OF ERROR

{¶7} Strader raises four Assignments of Error:

{¶8} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT

REFUSED TO LET APPELLANT CROSS EXAMINE THE ALLEGED VICTIM ABOUT

PRIOR FALSE ALLEGATIONS IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO

CONFRONT WITNESSES.Stark County, Case No. 2021CA00152 15

{¶9} “II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

ADMITTING CARRIE SCHNIRRING’S TESTIMONY AND EXPERT OPINION INTO

EVIDENCE.

{¶10} “III. THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT’S

RULE 29 MOTION FOR ACQUITTAL FOR THE CHARGE OF VOYEURISM AS THERE

WAS NOT SUFFICIENT EVIDENCE WITH REGARD TO ALL THE ESSENTIAL

ELEMENTS OF THE CHARGE.

{¶11} “IV. APPELLANT’S CONVICTIONS OF GROSS SEXUAL IMPOSITION

AND VOYEURISM WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

ANALYSIS

I.

{¶12} In his first Assignment of Error, Strader argues the trial court abused its

discretion when it sustained the State’s objection to his cross

- examination of S.S.

regarding her alleged prior false allegation of sexual assault involving the male neighbor

child. We disagree and find the trial court did not err.

{¶13} A trial court has discretion to determine whether a witness may be asked

on cross examination about specific acts of conduct that are “clearly probative of

truthfulness or untruthfulness.” Evid.R. 608(B); State v. Jackson

, 2015

- Ohio

- 5490, 63

N.E.3d 410, ¶ 22 (2nd Dist.), citing State v. Chaney

, 169 App.3d 246, 2006

- Ohio

- 5288,

862 N.E.2d 559, ¶ 5 (3rd Dist.). The abuse of discretion standard is more than an error of

judgment; it implies the court ruled arbitrarily, unreasonably, or unconscionably.

Blakemore v. Blakemore

, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).Stark County, Case No. 2021CA00152 16

{¶14} In his first Assignment of Error, Strader relies on the holding of the Ohio

Supreme Court in State v. Boggs

, 63 Ohio St.3d 418, 588 N.E.2d 813 (1992), which held

a defendant may cross examine a rape victim about a prior false accusation of rape, under

Evid.R. 608(B), if the accusation does not involve any “sexual activity.” State v. Hall

, 2nd

Dist. Montgomery No. 25794, 2014

- Ohio

- 2094, ¶ 12. Under the rape

- shield provision of

R.C. 2907.02(D), evidence of “sexual activity” is prohibited. In this case, Strader was

charged with gross sexual imposition under R.C. 2907.05. R.C. 2907.05(E) and (F)

contain identical provisions as the rape

- shield provisions of R.C. 2907.02(D) and (E):

(E) Evidence of specific instances of the victim's sexual activity, opinion

evidence of the victim's sexual activity, and reputation evidence of the

victim's sexual activity shall not be admitted under this section unless it

involves evidence of the origin of semen, pregnancy, or disease, or the

victim's past sexual activity with the offender, and only to the extent that

the court finds that the evidence is material to a fact at issue in the case

and that its inflammatory or prejudicial nature does not outweigh its

probative value.

Evidence of specific instances of the defendant's sexual activity, opinion

evidence of the defendant's sexual activity, and reputation evidence of the

defendant's sexual activity shall not be admitted under this section unless

it involves evidence of the origin of semen, pregnancy, or disease, the

defendant's past sexual activity with the victim, or is admissible against the

defendant under section 2945.59 of the Revised Code, and only to the

extent that the court finds that the evidence is material to a fact at issue inStark County, Case No. 2021CA00152 17

the case and that its inflammatory or prejudicial nature does not outweigh

its probative value.

(F) Prior to taking testimony or receiving evidence of any sexual activity of

the victim or the defendant in a proceeding under this section, the court

shall resolve the admissibility of the proposed evidence in a hearing in

chambers, which shall be held at or before preliminary hearing and not less

than three days before trial, or for good cause shown during the trial.

{¶15} In Boggs

, the Supreme Court balanced the objective of the rape

- shield

provision to protect the privacy of a rape victim’s prior sexual activity with the legitimate

defense strategy to test the credibility of a rape victim. State v. Jackson, supra at ¶ 23. In

order to balance both objectives, Boggs requires an in camera hearing before cross

examination of a rape victim as to prior false accusations may proceed: “Where an alleged

rape victim admits on cross

- examination that she has made a prior false rape accusation,

the trial judge shall conduct an in camera hearing to ascertain whether sexual activity was

involved. * * *.” Boggs, supra at paragraph two of the syllabus. The trial court must

determine if the prior accusations are unfounded and, if so, whether the conduct involves

sexual activity that is inadmissible pursuant to the rape shield law. State v. Jackson,

supra

, ¶ 23 citing Boggs, supra

, paragraph two of the syllabus. The burden is on the

defense to demonstrate the accusations were totally false and unfounded. Boggs, supra

at 423.

{¶16} While Strader contends on appeal that the trial court failed to comply with

Boggs when it did not hold an in camera hearing, the record in this case shows that

Strader did not request the trial court to engage in the Boggs procedures or bring theStark County, Case No. 2021CA00152 18

matter to the trial court’s attention prior to Strader’s cross examination of S.S. as to the

alleged prior false accusation. Accordingly, we review Strader’s first Assignment of Error

under the plain error standard.

{¶17} The State and Strader were aware pre

- trial of S.S.’s prior accusation of

sexual assault by the neighbor child. Strader listed the mother of the neighbor child as a

defense witness. However, it was the State, not Strader, that filed a pre

- trial motion in

limine to prohibit the admission of S.S.’s prior accusation. When the trial court heard the

State’s motion in limine, counsel for Strader argued S.S.’s prior false accusation of sexual

assault was admissible as to the issue of her credibility. Strader did not present any

evidence during the hearing on the State’s motion in limine. At trial, during cross

examination, counsel for Strader did not ask S.S. if she made a prior false accusation but

asked if she confided with her father about another incident with a neighbor boy. (T. 261

-

262). During sidebar after the State’s objection and during his proffer, the defense

repeated his argument that S.S.’s alleged false accusation went to her credibility. These

all raise the specter of Boggs, but the record is clear

-- there was no evidence that S.S.’s

accusation against the neighbor child was totally unfounded.

{¶18} The trial court ruled that there was no evidence that S.S.’s allegation was

false and therefore, the evidence of conduct involving sexual activity was inadmissible.

The trial court repeatedly noted that lack of evidence when it sustained the State’s

objections:

I think that is the issue; that there is no evidence that these are false

allegations. I agree that if there was some evidence that there were false

allegations, we’d be having a different conversation, but...Stark County, Case No. 2021CA00152 19

* * *

Okay. And the Court stands by its ruling that the evidence does not

demonstrate that this was a false accusation. * * * So the Court stands by

its ruling with regard to any possible false allegations, again, as to whether

or not they were false has not been established.

(T. 262, 289).

{¶19} Under the plain error rule, “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” Crim.R.

52(B). The rule places the following limitations on a reviewing court's determination to

correct an error despite the absence of timely objections at trial: (1) “there must be an

error, i.e. a deviation from a legal rule,” (2) “the error must be plain,” that is an error that

constitutes “an ‘obvious’ defect in the trial proceedings,” and (3) the error must have

affected “substantial rights” such that “the trial court's error must have affected the

outcome of the trial.” State v. Wood

, 5th Dist. Knox No. 20CA000010, 2020

- Ohio

- 4251,

2020 WL 5092841, ¶ 18 citing State v. Dunn

, 5th Dist. Stark No. 2008

- CA

- 00137, 2009

-

Ohio

- 1688, 2009 WL 943968, ¶ 89, citing State v. Morales

, 10th Dist. Franklin Nos. 03

-

AP

- 318, 2004

- Ohio

- 3391, 2004 WL 1446117, ¶ 19.

{¶20} In this case, we find it was not plain error for the trial court to grant the

State’s objection and prohibit Strader’s cross examination of S.S. as to her prior

accusation. We find Strader has failed to establish there was an error by the trial court

and that alleged error was an obvious defect in the trial court proceedings. The Boggs

court held that the court has the discretion to determine whether to allow cross

examination under Evid.R. 608(B) concerning prior false allegations of sexualStark County, Case No. 2021CA00152 20

misconduct. State v. King

, 5th Dist. Fairfield No. 2008 CA 00045, 2009

- Ohio

- 5984, ¶ 29

citing Boggs, supra at 421. The trial court did not abuse its discretion under Evid.R. 608(B)

to prohibit cross examination on the issue.

{¶21} Strader’s first Assignment of Error is overruled.

II.

{¶22} Strader contends in his second Assignment of Error that the trial court

committed prejudicial error by admitting the testimony of Carrie Schnirring. He argues Ms.

Schnirring’s testimony was inadmissible as expert testimony and only served to bolster

the credibility of S.S.

{¶23} We note that Strader did not object to the trial court’s qualification of Ms.

Schnirring as an expert witness.

{¶24} “Ordinarily, a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” State v. Romy

, 5th Dist. No. 2020 CA

00066, 2021

- Ohio

- 501, 168 N.E.3d 86, 2021 WL 734758, ¶ 49 citing Rigby v. Lake

County

, 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). The appellate court must limit

its review of the trial court's admission or exclusion of evidence to whether the trial court

abused its discretion Id. The abuse of discretion standard is more than an error of

judgment; it implies the court ruled arbitrarily, unreasonably, or unconscionably.

Blakemore v. Blakemore

, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶25} An expert may not testify as to the expert's opinion of the veracity of the

statements of a child declarant. State v. Romy

, 5th Dist. No. 2020 CA 00066, 2021

- Ohio

501, 168 N.E.3d 86, 2021 WL 734758, ¶ 50 citing State v. Boston

, 46 Ohio St.3d 108,Stark County, Case No. 2021CA00152 21

545 N.E.2d 1220 (1989). However, there is a difference “between expert testimony that

a child witness is telling the truth and evidence which bolsters a child credibility.” State v.

Stowers

, 81 Ohio St.3d 260, 262

- 263, 690 N.E.2d 881 (1998). Thus, an expert can testify

that a child's behavior is consistent with the behavior of other children who have been

sexually assaulted.” Id

.

{¶26} Ms. Schnirring did not testify as to the veracity of S.S.’s statements. Ms.

Schnirring testified that her role was not to determine if the sexual abuse occurred; it was

her role to determine if the child required trauma therapy. (T. 403). Further, Ms.

Schnirring’s testimony as an expert witness was offered to show that S.S. was a victim of

sex abuse because her behavior, such as the cost

- benefit analysis a child will engage in

on whether to disclose the abuse, was common in children who have been abused. (T.

411). See State v. Romy

, 5th Dist. No. 2020 CA 00066, 2021

- Ohio

- 501, 168 N.E.3d 86,

2021 WL 734758, ¶ 52.

{¶27} Strader’s second Assignment of Error is overruled.

III. and IV.

{¶28} In Strader’s third Assignment of Error, he argues his conviction for

voyeurism was against the sufficiency of the evidence. We also address his fourth

Assignment of Error in part where he argues his conviction for voyeurism was against the

manifest weight of the evidence.

{¶29} The trial court denied Strader’s Crim.R. 29 motion for acquittal of the charge

of voyeurism. The appellate court reviews a denial of a Crim.R. 29 motion for acquittal

using the same standard used to review a sufficiency of the evidence claim. State v.

Henderson

, 5th Dist. Richland No. 17CA104, 2019

- Ohio

- 4958, ¶ 15 citing State v. Larry

,Stark County, Case No. 2021CA00152 22

5th Dist. Holmes No. 15CA011, 2016

– Ohio

– 829, ¶ 20 citing State v. Carter

, 72 Ohio St.3d

545, 553, 651 N.E.2d 965, 1995

– Ohio

– 104.

{¶30} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins

, 78 Ohio St.3d 380,

1997

- Ohio

- 52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks , 61 Ohi o St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

{¶31} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of 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 overturned and a new trial ordered.” State v. Thompkins, supra

, 78 Ohio St.3d at 387,

678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id

.Stark County, Case No. 2021CA00152 23

{¶32} Strader was convicted of voyeurism, in violation of R.C. 2907.08(C), which

states: “No person, for the purpose of sexually arousing or gratifying the person's self,

shall commit trespass or otherwise surreptitiously invade the privacy of another to

videotape, film, photograph, otherwise record, or spy or eavesdrop upon the other person

in a state of nudity if the other person is a minor.” In his appellate brief, Strader argues

the State failed to establish beyond a reasonable doubt that Strader videotaped, filmed,

photographed, or otherwise recorded S.S. in a state of nudity.

{¶33} Det. Lile did not discover evidence of a recording or photograph of S.S. in

a stated of nudity on the cell phone provided by S.S. that was previously owned by

Strader. When Det. Lile investigated the home, he did not find a camera in the basement

bathroom.

{¶34} The analysis of whether a rational trier of fact could have found the essential

elements of voyeurism does not stop, however, if there is not a recording or photograph.

The statute reads in total that “no person * * * shall videotape, film, photograph, otherwise

record, or spy, or eavesdrop on another person.” R.C. 2907.08(C). There was testimony

as to the elements of R.C. 2907.08(C) beyond that of a recording or photograph.

{¶35} S.S. testified there was a circular hole in between Strader’s bedroom wall

and the second

- floor bathroom. The hole was covered with a piece of duct tape and when

uncovered, a person looking through the hole could see into the shower of the second

floor bathroom. Multiple witnesses for the State and defense testified as to the existence

of the circular hole in the bathroom wall. Strader did not dispute the existence of the hole

in the wall. He testified that the hole was accidently created when he was moving bedroom

furniture and denied observing S.S. through the hole in the wall.Stark County, Case No. 2021CA00152 24

{¶36} S.S. testified that when Strader bathed her in the second

- floor bathroom

and told her to place a rag over her face while she was nude, she saw Strader pointing

his cell phone at her.

{¶37} S.S. testified that when she covered the camera in the basement bathroom

where she was showering upon Strader’s direction, he came into the bathroom and told

her to uncover the camera. Strader admitted there were cameras in the home for security

purposes. S.S. had seen the application on his cell phone connected to the cameras.

{¶38} This case came down to the credibility of the State’s witnesses and

Strader’s witnesses. “When there is a conflict in the testimony of witnesses, it is for the

trier of fact to determine the weight and credibility to be given to such evidence.” State v.

York

, 3rd Dist. Union No. 14

- 21

- 14, 2022

- Ohio

- 1626, 2022 WL 1538021, ¶ 87 quoting

State v. Robinson

, 12th Dist. Butler No. CA2018

- 08

- 163, 2019

- Ohio

- 3144, ¶ 29. The jury

may “take note of any inconsistencies in the testimony and resolve them accordingly,

believing all, part, or none of each witness's testimony.” State v. Lark

, 12th Dist. Fayette

No. CA2018

- 03

- 004, 2018

- Ohio

- 4940, ¶ 29. Ultimately, “ ‘a conviction is not against the

manifest weight of the evidence because the trier of fact believed the state's version of

events over the defendant's version.’ ” State v. Smith

, 3rd Dist. Marion No. 9

- 20

- 50, 2021

-

Ohio

- 3404, ¶ 26, quoting State v. Ferrell

, 10th Dist. Franklin No. 19AP

- 816, 165 N.E.3d

743, 2020

- Ohio

- 6879, ¶ 59.

{¶39} Upon this record, considering the evidence in a light most favorable to the

State, there was sufficient evidence that any reasonable trier of fact could have found the

essential elements of voyeurism were proven beyond a reasonable doubt. The jury didStark County, Case No. 2021CA00152 25

not lose its way to create a manifest miscarriage of justice when it found Strader guilty of

voyeurism.

{¶40} Strader’s third and fourth Assignments of Error (as to voyeurism) are

overruled.

IV.

{¶41} In his final Assignment of Error, Strader contends his convictions for gross

sexual imposition and voyeurism are against the manifest weight of the evidence. We

addressed Strader’s argument as to his conviction for voyeurism in the third Assignment

of Error. In this Assignment of Error, we address only his conviction for gross sexual

imposition.

{¶42} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins

, 78 Ohio St.3d 380,

1997

- Ohio

- 52, 678 N.E.2d 541, paragraph two of the syllabus. In determining whether a

conviction is against the manifest weight of the evidence, the court of appeals functions

as the “thirteenth juror,” and after “reviewing the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of 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 overturned and a new trial

ordered.” State v. Thompkins, supra , 78 Ohio St.3d at 387, 678 N.E.2d 541. Reversing a

conviction as being against the manifest weight of the evidence and ordering a new trial

should be reserved for only the “exceptional case in which the evidence weighs heavily

against the conviction.” Id

.Stark County, Case No. 2021CA00152 26

{¶43} The case essentially came down to a credibility determination between the

State’s witnesses and Strader’s witnesses. The weight to be given to the evidence and

the credibility of the witnesses are issues for the trier of fact. State v. DeHass

, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The jury as the trier of

fact was free to accept or reject any and all of the evidence offered by the parties and

assess the witness's credibility. “While the trier of fact may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. Frye

, 5th Dist. Richland No. 17CA5, 2017

- Ohio

- 7733, 2017 WL

4176953, ¶ 47 quoting State v. Johnson

, 5th Dist. Stark No. 2014CA00189, 2015

– Ohio

–

3113, 41 N.E.3d 104, ¶ 61, citing State v. Nivens

, 10th Dist. Franklin No. 95APA09

– 1236,

1996 WL 284714 (May 28, 1996). The jury need not believe all of a witness' testimony

but may accept only portions of it as true. Id

.

{¶44} Strader contends his conviction for gross sexual imposition was not

supported by manifest weight of the evidence. Pursuant to R.C. 2907.05(A)(4), the jury

was required to find beyond a reasonable doubt that, “No person shall have sexual

contact with another, not the spouse of the offender; * * * when: The other person, or one

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

the age of that person.” While Strader reviews each incident alleged by S.S. as

unsupported by the manifest weight of the evidence, the State notes that Strader was

charged with one count of gross sexual imposition based on his course of conduct.

Evidence from each incident may establish an element of the one charge.Stark County, Case No. 2021CA00152 27

Bedroom Incident

{¶45} Strader first argues there was contradictory evidence to demonstrate the

bedroom incident did not occur as S.S. described. S.S. testified that when Strader came

into the room and touched her under her shirt, she was laying alone in the bottom bunk.

Strader points to the testimony of his witnesses, including his two younger daughters,

who testified that the three girls always slept together in the bottom bunk. The two younger

sisters testified that they did not recall their father coming into their bed when S.S. alleged,

and one testified she was a light sleeper and would have woken up. S.S. testified that she

was 12 years old when the bedroom incident occurred. At the trial in 2021, S.S. was 18

years old, and her sisters were 15 and 13 years old. Accordingly, when S.S. was 12 years

old, her sisters were 9 and 7 years old. The younger sisters did not testify the bedroom

incident did not occur. Their testimony was that the three sisters slept in the same bed,

they were not aware of the incident, and when one sister was elementary

- school aged,

she was a light sleeper. That the siblings and defense witnesses did not see any signs of

abuse does not mean that the abuse was did not happen. As the factfinder, the jury was

free to give the sisters’ testimony the weight it deemed appropriate.

Second

- Floor Bathroom and Dining Room Incidents

{¶46} As to the incidents in the upstairs bathroom and dining room, Strader

disputes that S.S. was under the age of 13 when they occurred. He does not dispute

S.S.’s recollection as to her age when the bedroom incident occurred.

{¶47} S.S. was born in late September 2003. S.S. testified she was in the seventh

grade or 12 years old when Strader touched her in the second

- floor bathroom. (T. 212).

At the start of the seventh grade, S.S. would have been 11 years old and turning 12 yearsStark County, Case No. 2021CA00152 28

old in September. (T. 227). S.S. testified that she was in eighth grade when the dining

room incident occurred. (T. 217). Based on her birth date, at the start of eighth grade,

S.S. would have been 12 years old and turning 13 years old in September. (T. 227).

{¶48} As stated above, the State charged Strader with one count of gross sexual

imposition based on a course of conduct from January 1, 2015 through September 24,

2015. S.S. testified that sexual contact with Strader occurred during January 1, 2015 to

September 24, 2015, when she was in seventh grade and 11 or 12 years old. The jury

clearly believed S.S.’s testimony over that of the defense witnesses.

{¶49} There is nothing in the record that leads us to believe that this is one of

those exceptional cases in which the evidence weighs heavily against the conviction of

gross sexual imposition.

{¶50} Strader’s fourth Assignment of Error is overruled.

CONCLUSION

{¶51} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.