[Cite as State v. L.E.F., 2014-Ohio-4585.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 13AP-1042 

 (C.P.C. No. 12CR-09-4956) 

v. : 

 

L.E.F., : (REGULAR CALENDAR) 

 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on October 16, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for 

appellee. 

W. Joseph Edwards, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas. 

BROWN, J. 

{¶ 1} L.E.F., defendant-appellant, appeals from the judgment of the Franklin 

County Court of Common Pleas in which the court found him guilty, pursuant to a jury 

trial, of 4 counts of rape, with specifications, which are violations of R.C. 2907.02 and 

first-degree felonies, and guilty of 13 counts of gross sexual imposition ("GSI"), which are 

violations of R.C. 2907.05 and third-degree felonies. 

{¶ 2} Appellant was married to a woman who had a daughter, J.H. Between 

January 2006 and October 2011, appellant engaged in sexual activity with J.H. After J.H. 

told a friend and then a school counselor about appellant's conduct, appellant was 

charged with 33 total counts of rape and GSI. 
No. 13AP-1042 2 

{¶ 3} On October 8, 2013, a jury trial commenced, and during the course of the 

trial, plaintiff-appellee, State of Ohio, dismissed several counts of rape and GSI. The jury 

eventually returned a verdict of guilty as to 4 counts of rape and 13 counts of GSI, and not 

guilty as to 1 count of rape and 2 counts of GSI. On December 2, 2013, the trial court 

issued a judgment entry in which it found appellant guilty, pursuant to the jury's verdict, 

found him to be a sexual predator, and sentenced him to life in prison without parole. 

Appellant appeals the judgment, asserting the following assignments of error: 

I. THE TRIAL COURT ERRED WHEN IT WHEN IT [sic] 

ADMITTED OVER OBJECTION THE VIDEO-TAPED 

STATEMENT OF J.H. THAT WAS TAKEN BY SOCIAL 

WORKER WESTGATE IN VIOLATION OF OHIO EVID.R. 

803(4) THEREBY DENYING APPELLANT OF HIS RIGHT 

TO A FAIR TRIAL UNDER THE OHIO AND FEDERAL 

CONSTITUTIONS. 

II. THE TRIAL COURT ERRED WHEN IT ENTERED 

JUDGMENT AGAINST THE APPELLANT WHEN THE 

EVIDENCE WAS INSUFFICIENT TO SUSTAIN A 

CONVICTION AND WAS NOT SUPPORTED BY THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

 

III. THE TRIAL COURT DEPRIVED APPELLANT OF HIS 

STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO 

DUE PROCESS AND A FAIR TRIAL WHEN IT ALLOWED 

NURSE HORNER TO TESTIFY AS TO THE VERACITY OF 

THE CHILD WITNESS IN THIS MATTER. 

{¶ 4} Appellant argues in his first assignment of error that the trial court erred 

when it admitted into evidence the videotaped statement of J.H. that was filmed during 

the interview with Jennifer Westgate, a social worker and medical forensic interviewer at 

the Center for Family Safety and Healing ("child advocacy center") at Nationwide 

Children's Hospital. "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." Rigby v. Lake Cty., 58 Ohio 

St.3d 269, 271 (1991). Likewise, the admission of videotape evidence is a matter of 

discretion for the trial court. Reinoehl v. Trinity Universal Ins. Co., 130 Ohio App.3d 186, 

195 (10th Dist.1998). An appellate court's review of the admission of evidence is limited to 
No. 13AP-1042 3 

a determination as to whether the trial court abused its discretion. Id. An abuse of 

discretion connotes more than a mere error in judgment, it implies that the trial court's 

decision was arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983). 

{¶ 5} In the present case, appellant contends that the statements J.H. made to 

Westgate in the videotaped interview were not made for the purposes of medical 

diagnosis or treatment and, therefore, were hearsay that did not fall within the hearsay 

exception under Evid.R. 803(4). Hearsay is "a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of 

the matter asserted." Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible 

unless it falls within an exception provided by the rules of evidence. 

{¶ 6} Evid.R. 803(4) allows, as an exception to the hearsay rule, the admission of 

"[s]tatements 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 character of the cause or external source thereof insofar as reasonably pertinent to 

diagnosis or treatment." Thus, "[w]hen examining the admissibility of hearsay statements 

under Evid.R. 803(4), the primary inquiry is whether the statements were made for the 

purposes of medical diagnosis or treatment, as opposed to some other purpose." Fields v. 

CSX Transp., Inc., 197 Ohio App.3d 561, 2011-Ohio-6761, ¶ 17 (8th Dist.). As stated by the 

Supreme Court of Ohio, "[t]he test under Evid.R. 803(4) goes solely to whether a 

statement was made for purposes of medical diagnosis or treatment. If a statement is

made for purposes of diagnosis or treatment, it is admissible pursuant to Evid.R. 803(4)." 

(Emphasis sic.) State v. Dever, 64 Ohio St.3d 401, 414 (1992). 

{¶ 7} Here, appellant claims that the statements made by J.H. in the videotape 

were not for purposes of medical diagnosis but for the criminal investigation of the sexual 

assaults. Appellant points out that the interview was scheduled by the Reynoldsburg 

Police Department, no medical purpose existed for the interview, and the videotape was 

made solely for use at trial. 

{¶ 8} Westgate testified that when a child comes into the center, the center asks 

the child's medical background and gets the child's weight, height, and temperature. 

Westgate said that at every interview of a child, either a physician or nurse practitioner 
No. 13AP-1042 4 

observes the interview, and she always meets with the physician or nurse immediately 

following the interview to discuss the matter. Westgate also testified that the interview 

guides the course of the medical exam, which immediately follows the interview. After the 

medical exam, the physician then meets with the child's caregiver. The written summary 

of the interview becomes part of the child's permanent medical record. Westgate also 

agreed with appellant's counsel on cross-examination that her primary purpose in 

conducting interviews is to obtain information for the purposes of medical diagnosis or 

treatment. 

{¶ 9} In State v. [M.A.], 126 Ohio St.3d 290, 2010-Ohio-2742 ("M.A."), the 

Supreme Court of Ohio held Evid.R. 803(4) was limited to information necessary for the 

diagnosis and treatment of injuries. The victim in M.A., who was the defendant's fouryear-old daughter, was interviewed by a medical forensic interviewer at the same child 

advocacy center as in the present case. At trial, the child did not testify, but the court 

admitted the child's recorded interview from the center. We upheld the admission of the 

child's interview in State v. [M.A.], 10th Dist. No. 07AP-789, 2008-Ohio-3471. On appeal, 

the Supreme Court addressed whether, in a criminal prosecution, out-of-court statements 

made by a child to an interviewer employed by a child advocacy center violates the right to 

confront witnesses provided by the Sixth Amendment's Confrontation Clause and the 

Ohio Constitution. The court found that the objective of a child advocacy center was 

neither exclusively medical diagnosis and treatment nor solely forensic investigation. See

M.A. at ¶ 29. The court held that statements made to interviewers at child advocacy 

centers that are made for the purposes of medical diagnosis and treatment are nontestimonial and, therefore, admissible without offending the Confrontation Clause. Id. at 

¶ 2. The court further held that statements made to interviewers at child advocacy centers 

that serve primarily a forensic or investigative purpose are testimonial and, therefore, 

inadmissible pursuant to the Confrontation Clause. Id. 

{¶ 10} The court in M.A. then analyzed specific statements to determine whether 

they primarily served a forensic or investigative purpose or whether the statements 

provided information necessary to diagnose and provide medical treatment. The court 

determined that statements relating to the identity of the perpetrator, the type of abuse 

alleged, the identification of the body parts of the victim and the perpetrator involved, and 
No. 13AP-1042 5 

the time frame of the abuse were statements for medical diagnosis and treatment because 

that information allowed the doctor or nurse to determine whether to test the child for 

sexually transmitted diseases and to identify any trauma or injury sustained during the 

alleged abuse. Id. at ¶ 32, 38. The court then determined that the child's statement that 

the offender shut and locked the door before the rape, the child's description of where 

others were in the house at the time of the rape, the child's statement that the offender 

removed her underwear, and the child's description of the offender's boxer shorts were 

statements related primarily to the investigation, and, therefore, such statements were 

prohibited by the Confrontation Clause. Accordingly, the court affirmed in part and 

reversed in part the judgment of this court and remanded the matter for a determination 

of whether the erroneous admission of forensic statements was harmless error. On 

remand, this court concluded the admission of the challenged evidence was harmless 

because the statements were cumulative of other evidence properly admitted, and 

overwhelming evidence other than the challenged statements supported the guilty 

verdicts. State v. [M.A.], 10th Dist. No. 07AP-789, 2010-Ohio-5622 ("M.A. II"), appeal 

denied, 128 Ohio St.3d 1426, 2011-Ohio-1049. 

{¶ 11} In the present case, because J.H. testified at trial and was subject to crossexamination, we are not presented with a Confrontation Clause issue. Thus, M.A. has 

limited application. See State v. Simms, 10th Dist. No. 10AP-1063, 2012-Ohio-2321, ¶ 42, 

citing State v. Rucker, 1st Dist. No. C-110082, 2012-Ohio-185, ¶ 37 (M.A. has limited 

application when victim testified at trial and was subject to cross-examination). See also

In re C.S., 10th Dist. No. 11AP-667, 2012-Ohio-2988, ¶ 19, citing Simms (same). However, 

pursuant to M.A., we must still examine J.H.'s statements made during the recorded 

interview at the child advocacy center and determine whether they were inadmissible 

because they were for forensic purposes or admissible because they were for purposes of 

medical diagnosis and treatment. 

{¶ 12} In his brief, appellant does not cite any specific statements made by J.H. in 

her interview. Nevertheless, our review of the interview reveals that the majority of the 

statements that J.H. made were for purposes of medical diagnosis and treatment and, 

therefore, admissible. J.H. stated how many times the abuse occurred, how old she was 

when the abuse occurred, and how and where appellant ejaculated. She also stated that 
No. 13AP-1042 6 

appellant watched her in the shower, forced her to suck his "ding-a-ling" and "wiener," 

did embarrassing things to her that made her feel weird, put his hands down her pants 

and rubbed her private parts, forced her to rub his "ding-a-ling," rubbed her both inside 

and outside her skin, rubbed her buttocks, squeezed her breasts to check how large they 

were getting, and checked J.H.'s private parts to see if she was growing hair, but he never 

put his private parts inside of her. (Tr. Vol. III, 251.) These statements were for the 

purposes of medical diagnosis and treatment and, thus, admissible. See M.A. at ¶ 32, 38 

(the court classified information regarding the identity of the perpetrator, the type of 

abuse alleged, the identification of the areas where the child had been touched and the 

body parts of the perpetrator that had touched her, and the time frame of the abuse, as 

statements for diagnosis and treatment because that information allowed the doctor or 

nurse to determine whether to test the child for sexually transmitted diseases, and to 

identify any trauma or injury sustained during the alleged abuse); Simms at ¶ 40, citing In 

re J.M., 4th Dist. No. 08CA782, 2011-Ohio-3377, ¶ 39 (child's statement that the offender 

"rubbed his pee-pee all over my face and then put his pee-pee in my butt," as well as her 

statements that "her butt hurt" and that the incident had occurred that day were 

statements made for medical diagnosis and treatment and, therefore, were nontestimonial and admissible); State v. Dorsey, 5th Dist. No. 11 CA 39, 2012-Ohio-611, ¶ 24-

28 (victim's statements describing forms of sexual activity, such as statements explaining 

that the offender grabbed her, hugged her, grabbed her breast and vagina, got on top of 

her, and put his penis in her vagina, would cause a medical professional to be concerned 

about possible injuries and sexually transmitted diseases; such statements were not 

testimonial and were for medical diagnosis and treatment); and In re T.L., 9th Dist. No. 

09CA0018-M, 2011-Ohio-4709, ¶ 14-22 (statements that the perpetrator touched the 

child's vagina with his fingers under her underwear and also inside her vagina were for 

purposes of medical diagnosis and treatment and, therefore, admissible). 

{¶ 13} Our review of the interview also reveals several statements that J.H. made 

that were mainly for forensic purposes and, therefore, inadmissible. J.H. stated that 

appellant was mean to her and yelled at her, they watched "romance shows" together 

prior to the abuse, she and appellant were sitting on the couch when the abuse occurred, 

and her mother watched appellant check J.H.'s breasts and private parts to see how she 
No. 13AP-1042 7 

was developing. (Tr. Vol. IV, 450-51.) J.H. also described whom she told about the abuse, 

the houses and rooms in which the abuse occurred, and the locations of others who were 

in the house when the abuse occurred. Courts have found similar statements were for 

forensic purposes. See M.A. at ¶ 34-37 (the child's assertion that the offender shut and 

locked the door before raping her, the child's description of where others were in the 

house at the time of the rape, the child's statement that the offender removed her 

underwear, and the child's description of the offender's boxer shorts were statements 

related primarily to the investigation and, therefore, such statements were prohibited); 

Simms at ¶ 40 (victim's statement to advocacy center about the location where the events 

occurred was for purposes of criminal investigation); C.S. at ¶ 21 (what appellant was 

doing on the computer, what appellant was wearing, whether the grandmother was in the 

room, and the direction the girls were lying in the bed were not potentially pertinent to 

medical diagnosis or treatment); State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094, 

¶ 23 (interview statements that defendant took child abuse victim into a separate room or 

locked her inside his bedroom when he touched her, as well as how defendant became 

mean toward victim, were not necessary for medical diagnosis and treatment); J.M. at 

¶ 40 (statements describing that the defendant talked mean to child victim, that the 

incident happened in defendant's room, that the defendant showed victim materials with 

"nasty" stuff of boys and girls, and who was present at the time of the incident, all served a 

forensic or investigative purpose). 

{¶ 14} However, we find that any error that may have occurred by the admission of 

these statements was harmless, as such statements were cumulative of other, properly 

admitted testimony. See M.A. II (child abuse victim's improperly admitted statements to 

child advocacy center were cumulative of other properly admitted testimony; thus, any 

error in their admission was harmless). J.H. testified at trial about the incidents of abuse, 

including that the abuse occurred in the living room on the couch, her mother was in bed 

and her brothers were playing video games when the abuse happened, she first told her 

friends and school counselor about the abuse, she was lying on the couch when the abuse 

occurred, her mom was present when appellant squeezed her breasts to check their size to 

see if she needed a training bra, and the abuse occurred while they were watching "love" 

or "romance" shows on television. (Tr. Vol. IV, 450-51.) Accordingly, insofar as J.H.'s 
No. 13AP-1042 8 

statements may have been for forensic rather than medical purposes and improperly 

admitted, we conclude such admission constitutes harmless error because the statements 

were cumulative of J.H.'s live trial testimony, which was subject to cross-examination.

Accordingly, appellant's first assignment of error is overruled. 

{¶ 15} Appellant argues in his second assignment of error that the trial court's 

judgment was based on insufficient evidence and against the manifest weight of the 

evidence. In reviewing a sufficiency of the evidence claim, the relevant inquiry is whether 

any rational fact finder, viewing the evidence in a light most favorable to the state, could 

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

State v. Jones, 90 Ohio St.3d 403, 417 (2000), citing Jackson v. Virginia, 443 U.S. 307, 

319 (1979), and State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. 

Whether the evidence is legally sufficient is a question of law, not fact. State v. 

Thompkins, 78 Ohio St.3d 380, 386 (1997). On review for sufficiency, courts do not assess 

whether the state's evidence is to be believed, but whether, if believed, the evidence 

against a defendant would support a conviction. Id. at 390. In determining the sufficiency 

of the evidence, an appellate court must give "full play to the responsibility of the trier of 

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts." Jackson at 319. Consequently, a 

verdict will not be disturbed based on insufficient evidence unless, after viewing the 

evidence in a light most favorable to the prosecution, it is apparent that reasonable minds 

could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 

460, 484 (2001); Jenks at 273.

{¶ 16} This court's function when reviewing the weight of the evidence is to 

determine whether the greater amount of credible evidence supports the verdict. 

Thompkins at 387. In order to undertake this review, we must sit as a "thirteenth juror" 

and review the entire record, weigh the evidence and all reasonable inferences, consider 

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

and created a manifest miscarriage of justice. Id., citing State v. Martin, 20 Ohio App.3d 

172, 175 (1st Dist.1983). If we find that the fact finder clearly lost its way, we must reverse 

the conviction and order a new trial. Id. On the other hand, we will not reverse a 

conviction so long as the state presented substantial evidence for a reasonable trier of fact 
No. 13AP-1042 9 

to conclude that all of the essential elements of the offense were established beyond a 

reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 193-94 (1998).

{¶ 17} In addressing a manifest weight of the evidence argument, we are able to 

consider the credibility of the witnesses. See Martin at 175. However, in conducting our 

review, we are guided by the presumption that the jury, or the trial court in a bench trial, 

is best able to view the witnesses and observe their demeanor, gestures, and voice 

inflections, and use these observations in weighing the credibility of the proffered 

testimony. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Thus, a 

reviewing court must defer to the factual findings of the jury, or judge in a bench trial, 

regarding the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), 

paragraph one of the syllabus. Concerning the issue of assessing witness credibility, the 

general rule of law is that "[t]he choice between credible witnesses and their conflicting 

testimony rests solely with the finder of fact and an appellate court may not substitute its 

own judgment for that of the finder of fact." State v. Awan, 22 Ohio St.3d 120, 123 (1986). 

Indeed, the fact finder is free to believe all, part or none of the testimony of each witness 

appearing before it. Hill v. Briggs, 111 Ohio App.3d 405, 412 (10th Dist.1996). If evidence 

is susceptible to more than one construction, reviewing courts must give it the 

interpretation that is consistent with the verdict and judgment. White v. Euclid Square 

Mall, 107 Ohio App.3d 536, 539 (8th Dist.1995). Mere disagreement over the credibility of 

witnesses is not sufficient reason to reverse a judgment. State v. Wilson, 113 Ohio St.3d 

382, 2007-Ohio-2202, ¶ 24. 

{¶ 18} Here, the whole of appellant's argument is that "J.H.'s testimony was 

lacking in credibility and specificity as to dates, locations, and acts to have a jury convict 

him of the offenses." (Appellant's Brief, 13-14.) Appellant does not support his assertion 

with any further argument or citation to the record. 

{¶ 19} App.R. 16(A)(7) requires an appellant's brief to include the "contentions of 

the appellant with respect to each assignment of error presented for review and the 

reasons in support of the contentions, with citations to the authorities, statutes, and parts 

of the record on which appellant relies." Further, App.R. 12(A)(2) provides that "[t]he 

court may disregard an assignment of error presented for review if the party raising it fails 

to identify in the record the error on which the assignment of error is based." It is not this 
No. 13AP-1042 10 

court's duty to search the record for evidence to support an appellant's argument as to 

alleged error. Sherman v. Sherman, 10th Dist. No. 05AP-757, 2006-Ohio-2309, ¶ 15; 

State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94 (10th Dist.). Based 

on this authority set forth in the appellate rules, we decline to address appellant's 

undeveloped argument under this assignment of error. 

{¶ 20} We also note that appellant's argument only actually contends that the 

conviction was based on insufficient evidence. However, under a sufficiency of the 

evidence review, we do not engage in a determination of witness credibility; rather, we 

assume the state's witnesses testified truthfully and determine if that testimony satisfies 

each element of the crime. State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, 

¶ 4 (noting that "in a sufficiency of the evidence review, an appellate court does not 

engage in a determination of witness credibility; rather, it essentially assumes the state's 

witnesses testified truthfully and determines if that testimony satisfies each element of the 

crime"). 

{¶ 21} Therefore, based on the above authorities and the absence of specific 

arguments and citations to the record, we find the jury's verdict was not based on 

insufficient evidence or against the manifest weight of the evidence. Accordingly, 

appellant's second assignment of error is overruled. 

{¶ 22} Appellant argues in his third assignment of error that the trial court erred 

when it allowed Gail Horner, the pediatric nurse practitioner at the child advocacy center 

who performed the physical examination on J.H., to testify as to the veracity of the victim, 

J.H. In her trial testimony, when asked on direct examination on what she based her 

diagnosis of child sexual abuse, Horner testified:

It was based on the history of sexual abuse given by [J.H.] 

during her forensic interview coupled with the anogenital 

examination findings. Even though the anogenital exam was a 

normal or a nonspecific exam, she gave a good consistent 

spontaneous history of sexual abuse in the forensic history. 

(Tr. Vol. IV, 595-96.) 

{¶ 23} Later, on cross-examination, defense counsel asked Horner the following: 

Q. All right. Your diagnosis and opinion in this case is sexual 

abuse. Now, that is – that opinion a based solely on the 
No. 13AP-1042 11 

history that you obtained or at least read about from [J.H.] 

and talked to Ms. Westgate about? 

A. Yes. It's based on the disclosure of sexual abuse that [J.H.] 

gave during her forensic interview. 

Q. And that opinion then assumes the accuracy of that 

history? In other words that she is telling the truth? 

A. Yes. 

(Tr. Vol. IV, 623-24.) 

{¶ 24} Trial counsel objected to Horner's direct-examination testimony on the 

same basis asserted here. The trial court overruled the objection, finding: 

Strictly speaking, that is not an affirmation of her credibility 

here as a witness. I realize that's getting fairly close, but in all 

conscience, if she doesn't go any farther than that, I cannot 

sustain the objection because, after all, I think it would be fair 

game. 

If, for example, a child was all over the road in terms of 

describing this, that, and the other, and it was totally 

inconsistent with everything else, you wouldn't, obviously, be 

able to cross-examine her on that. 

So I do caution you that I do not want her affirming the 

credibility of this witness, but to say that the history is good, 

consistent, and spontaneous is fair game. 

(Tr. Vol. IV, 598-99.) 

{¶ 25} The court in In re W.P., 8th Dist. No. 84114, 2004-Ohio-6627, addressed a 

similar argument and distinguished State v. Boston, 46 Ohio St.3d 108 (1989), which 

appellant in the present case also cites in support of his argument. In W.P., the pediatric 

nurse practitioner who conducted a physical examination of a child sexual-assault victim 

testified that, although her physical exam of the victim revealed a normal external 

anal/genital exam, based on the language the victim used to describe the incidents, the 

victim's consistency of the details in telling the social worker and the expert witness, and 

the victim's ability to describe the incidents in a narrative form, she did not find anything 
No. 13AP-1042 12 

that caused her to question the truthfulness of what the victim told her. The trial court 

permitted the testimony. The child victim also testified at trial. 

{¶ 26} On appeal, the defendant argued that the trial court erred in allowing the 

nurse to testify as to the truthfulness of the victim. The court rejected the defendant's 

reliance on Boston, in which the Supreme Court found it was error to allow an expert 

witness to testify as to the veracity of a child sexual abuse victim's statements when the 

expert gave her opinion that the child victim had not fantasized her abuse and was telling 

the truth. Id. at 129. The appellate court found Boston was distinguishable because, unlike 

in Boston, the victim in W.P. testified at trial, and the expert witness did not testify that 

the victim was telling the truth. Instead, the expert witness testified that, based on her 

observations of the language used by the victim in recounting what allegedly occurred and 

the consistency of the details the victim was able to recall, she did not find anything that 

caused her to question the truthfulness of what the victim told her. The court also held 

that, with the victim's testimony, the juvenile court was able to ascertain the credibility of 

the victim; whereas, in Boston, there was no independent indicia of reliability save for the 

expert witness who vouched for the child victim. 

{¶ 27} In the present case, Horner stated that her opinion was based on J.H.'s 

"good consistent spontaneous history of sexual abuse in the forensic history." (Tr. Vol. IV, 

596.) This statement by Horner on direct examination was not the rendering of an expert 

opinion concerning the veracity of the victim but an explanation of the basis for her 

diagnosis of sexual abuse. Witnesses involved in the examination of a sexual abuse victim 

may comment on the consistency of the victim's statements. See In re D.D., 8th Dist. No. 

89042, 2008-Ohio-222 (nurse may testify regarding the consistency of the details 

remembered by the victim); State v. Demiduk, 7th Dist. No. 96-C0-16 (June 24, 1998) 

(physician's observation that the alleged victim was consistent was simply a factor 

physician considered in making her analysis and was not improper testimony to the 

alleged victim's veracity). Therefore, we find no error in admitting this testimony. 

{¶ 28} Likewise, Horner's testimony on cross-examination was not an expert 

opinion of the victim's veracity. Horner's statement was only that her opinion was based 

on the assumption that J.H.'s history was accurate. Again, Horner's cross-examination 

testimony was explaining the basis for her diagnosis, which is permissible. See State v. 
No. 13AP-1042 13 

Harvey, 5th Dist. No. 13-CA-109, 2014-Ohio-2683, ¶ 17 (testimony of pediatric nurse 

practitioner that her diagnosis of sexual abuse was made based on the child's history did 

not express any opinion that child was telling the truth but related to her medical 

diagnosis as a result of the examination); State v. Cappadonia, 12th Dist. No. CA2008-11-

138, 2010-Ohio-494, ¶ 17, citing State v. France, 9th Dist. No. 15198 (Mar. 4, 1992), citing 

Boston at 128 (Boston does not prohibit an expert from giving an opinion as to whether a 

child has been sexually abused where that opinion is based on the expert's medical 

examination of the victim, even if there was no physical evidence of abuse, and the 

victim's history). In both of the statements, Horner was testifying as to what led to her 

ultimate disposition of sexual abuse, which is proper. State v. Smelcer, 89 Ohio App.3d 

115 (8th Dist.1993) (expert witnesses are permitted to testify to their disposition in a 

sexual abuse case). 

{¶ 29} In addition, insofar as appellant suggests that Horner's testimony could 

only be interpreted by the jury as vouching for the veracity of J.H., "[o]nly statements 

directly supporting the veracity of a child witness are prohibited under Boston." State v. 

Cashin, 10th Dist. No. 09AP-367, 2009-Ohio-6419, ¶ 20, citing State v. Rosas, 2d Dist. 

No. 22424, 2009-Ohio-1404, fn. 1. "[I]ndirect bolstering of a victim's credibility is not the 

same as the direct rendering of an opinion as to a victim's veracity that was involved in 

Boston." Id. See also Rosas at fn. 1, citing Boston at 132, fn. 21 (Patton, J., dissenting) 

(finding that while experts may testify that it is their opinion that a child has been abused, 

and such opinions implicitly assert a belief in the child's story, such an opinion is only an 

indirect comment on truthfulness and is, therefore, admissible). Furthermore, J.H. 

testified at trial and the jury was able to independently ascertain the credibility of the 

victim. For all the foregoing reasons, we find the trial court did not err when it allowed 

Horner's testimony, and appellant's third assignment of error is overruled. 

{¶ 30} Accordingly, appellant's three assignments of error are overruled, and the 

judgment of the Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

SADLER, P.J., and LUPER SCHUSTER, J., concur. 

______________________