[Cite as State v. Bright, 2024-Ohio-2803.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112799

v. :

RICKEY M. BRIGHT, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED

RELEASED AND JOURNALIZED: July 25, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-22-670918-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Michael Lisk, Assistant Prosecuting 

Attorney, for appellee. 

The Goldberg Law Firm, LLC, Michael J. Goldberg, and 

Adam Parker, for appellant. 

MARY J. BOYLE, J.:

Defendant-appellant, Rickey Bright (“Bright”), appeals his 

convictions for one count of rape of a child under the age of ten, two counts of gross 

sexual imposition, two counts of child endangering, one count of public indecency, 
and one count of domestic violence. The trial court sentenced Bright to 25 years to 

life in prison. Bright now appeals. For the reasons set forth below, we affirm his 

convictions, but remand to the trial court for the sole purpose of correcting the 

sentencing entry.

I. Facts and Procedural History

In June 2022, Bright was charged in a ten-count indictment that 

included two counts of rape of a victim under the age of ten; two counts of gross 

sexual imposition; two counts of endangering children; one count of pandering; 

one count of disseminating matter harmful to juveniles; one count of public 

indecency; and one count of domestic violence. The charges arose from allegations 

by Bright’s two minor daughters, K.B. and N.B., who reported that while staying at 

their dad’s apartment on May 19, 2o22, Bright had vaginal sex with K.B., and 

forced K.B. to perform oral sex on him. In addition, K.B. and N.B. alleged that 

Bright grabbed both of their buttocks. Then, Bright assaulted their mother

(“Mom”) when she confronted him about the allegations. 

In October 2022, the matter proceeded to jury trial. K.B. testified

that she was eight years old, she lived with her mother and sister, and they had just

moved back from California. She testified that her dad’s name was Rick, but she 

would not identify Bright in the courtroom. She stated that the last time she saw 

her dad she was seven years old, and that this made her sad and she missed him. 

K.B. testified that she still loved him. At first, K.B. denied that anything happened 

with Bright but eventually acknowledged that she woke up in the morning and had 
to brush her teeth “[b]ecause the icky stuff was in my mouth.” (Tr. 296.) She 

testified that it came from Bright’s “private part” and that he rubbed it all over her 

face and it dripped in her mouth. (Tr. 297.) When asked if he put it in her mouth 

she replied, “[y]eah.” (Tr. 297.) She testified that her toothbrush was orange. She 

also referred to her dad’s “private parts” as his “peanuts,” and the “icky stuff” as 

“gooey stuff.” (Tr. 296 and 298.) K.B. denied anything else happened.

N.B. testified that she was twelve years old at the time of trial, and 

that she lived with her mother and sister, K.B., and that they had just moved back 

from California. N.B. testified that when the incident happened, she was at her 

dad’s house with her sister. She testified that it happened in the bedroom, that the 

three of them were on the bed together and that she was “halfway asleep, and I 

heard [K.B.] saying, ‘stop’ and [Bright] was pulling her up. . . . [to] his private part.” 

(Tr. 307.) N.B. testified that her dad made K.B. swallow, “white stuff,” that came 

out of her dad’s “private part,” and K.B. was sitting down when it occurred. (Tr. 

315-316.) N.B. testified that she fell back to sleep. She testified that her dad 

squeezed her buttocks and she felt uncomfortable. N.B. would not identify Bright 

in the courtroom.

The girls’ mother testified that she had been in a relationship with 

Bright since 2007 and that they married in 2017. She testified that Bright is both 

girls’ father and identified him in the courtroom. She stated that they started living 

separately in 2019, but the girls would often stay with Bright. On May 19, 2022, 

the girls were staying with Bright at his apartment on Bosworth Avenue in 
Cleveland, Ohio. Mom testified that when they returned home Bright stayed the 

night, and in the morning, when Bright was sleeping, K.B. told her “‘[m]ommy, 

daddy told me to do it like this.’ She didn’t — she’s young. She does not know the 

terms, but she’s using hand gestures.”1 (Tr. 339.) Mom said that she was shocked 

and that “[K.B.] should know nothing about that.” (Tr. 339.) She testified that she 

knew K.B. was not lying because “that’s exactly how he likes it.” (Tr. 339.) Mom 

testified that she called her mother and then she called the police. She stated that 

she confronted Bright who said the girls were lying and then Bright started hitting 

her. Mom said that he hit her in the face and the ear. The police arrived and then 

she took the girls to the hospital to be examined and then to the child-advocacy 

center to be interviewed. 

The sexual assault nurse examiner (“SANE nurse”) from University 

Hospitals Rainbow Babies and Children’s Hospital that examined both girls 

testified. She read into the record the “Assault Narrative” provided by each girl on 

the date of their exams. (State’s exhibit Nos. 3 and 4.) K.B.’s narrative asserted 

that her dad made her “suck” and “touch” his penis; that nothing came out; that 

she was sleeping at the time it happened; that she sleeps with her mouth open; and 

that her sister told her what happened. (State’s exhibit No. 3.) N.B.’s narrative 

alleged that her dad “touched my bottom but he did way more bad stuff to my 

sister.” N.B. stated, “I was fake sleeping and he, my dad, rubbed his ‘private part’

1 Although Mom demonstrated the hand gesture for the jury, the gesture is not 

described for the record. 
on [my] sister’s face and he was forcing her — he put his ‘private part’ in [my] 

sister’s private part. She was telling him to stop but my dad is strong[.]” (State’s 

exhibit No. 4.)

The social worker from Cuyahoga County Division of Children and 

Family Services that conducted the forensic interviews of both girls testified. The

interviews were played for the jury. (State’s exhibit Nos. 7 and 8.) 

In K.B.’s interview, she told the social worker that she and her sister 

were sleeping at their dad’s house when their dad “made me suck his ‘peanuts’. . . .

He made me put my hand on his ‘peanuts’, and he picked up his ‘peanuts’ and 

rubbed it all over my face.” (State’s exhibit No. 7.) K.B. told the social worker that 

“he put it [peanuts] in my mouth and he was holding my. nose.” K.B. said that she 

was asleep, that her sister observed what happened and told her. K.B. stated that 

she woke up with “nasty stuff” in her mouth. She stated that she rinsed her mouth 

out with mouthwash. K.B. stated that her dad squeezed her “bottom” over her 

clothes. She also described Bright’s penis in the interview. On an anatomical 

drawing of a male and female, K.B. identified “peanuts” as the male penis, and K.B. 

circled all the locations where she was touched, including her hand, face, mouth, 

and vagina. (State’s exhibit No. 5.) 

In N.B.’s interview, she told the social worker that she, her sister, 

and their dad slept in the same bed and “I faked like I was asleep, and my dad did 

horrible stuff to my sister. . . . I just wanted to see what he was going to be doing 

but I found out he was doing bad stuff to my sister.” (State’s exhibit No. 8.) N.B. 
said she observed her dad rubbing his “private part” on her sister’s face and 

“forcing my sister to do stuff.” N.B. said her sister was awake and K.B. told her dad 

to “stop.” N.B. said she observed her dad put his “peanuts” in [K.B.’s] mouth and 

in her “private part.” N.B. said K.B. was sitting when this happened. N.B. said she 

fell asleep and then her dad touched N.B.’s “bottom” over her clothes. (State’s 

exhibit No. 8.) 

The forensic DNA analyst from Cuyahoga County Regional Forensic 

Science Laboratory testified as an expert witness (“DNA expert”). She testified that 

K.B.’s pajamas and toothbrush were submitted for DNA testing. The results 

indicated that Bright’s DNA matched a sperm fraction that was found on K.B.’s 

pajama shirt and toothbrush. 

Bright, who is 60 years old, testified on his own behalf and denied that 

any sexual conduct occurred. Bright’s testimony implied that the girls’ mom

orchestrated these allegations because they were fighting about her bringing other 

men around the girls, and she wanted to move the girls to Arizona. 

The jury found Bright guilty of one count of rape of a child under the 

age of ten (fellatio), two counts of gross sexual imposition, two counts of child 

endangering, one count of public indecency, and one count of domestic violence. 

The trial court sentenced Bright to 25 years to life in prison. The sentencing 

judgment entry states that the court imposed a sentence of life with the possibility 

of parole after a minimum of 25 years and a maximum of 37.5 years on Count 1 

pursuant to the Reagan Tokes Law. 
Bright appeals and raises the following assignments of error for 

review: 

Assignment of Error I: Appellant received ineffective assistance of 

counsel, where trial counsel did not object to testimony offered in 

violation of Crim.R. 16(K), failed to raise the competency of an eightyear-old witness, and failed to object to improper statements of the 

prosecutor in closing argument.

Assignment of Error II: The trial court plainly erred by permitting 

expert testimony in violation of Crim.R. 16(K).

Assignment of Error III: The trial court plainly erred by failing to 

conduct a voir dire of K.B. to determine her competency to testify.

Assignment of Error IV: Cumulative error deprived appellant of a 

fair trial.

Assignment of Error V: Appellant’s convictions are against the 

sufficiency of the evidence.

Assignment of Error VI: Appellant’s convictions are against the 

manifest weight of the evidence.

Assignment of Error VII: The trial court erred in applying the 

Reagan Tokes law to a life sentence. 

II. Law and Analysis

The first three assignments of error will be addressed together

because the arguments and law are intertwined. Under these assignments of error, 

Bright maintains that his defense counsel was ineffective for three reasons: (1) he 

failed to object to the expert testimony of the SANE nurse, the social worker, and the 

DNA analyst; (2) he failed to challenge the competency of K.B.; and (3) he failed to 

object to improper comments made during the State’s closing argument. Bright also 

argues that the court committed plain error when it allowed the SANE nurse, the 
social worker, and the DNA analyst to provide expert testimony. Additionally, he 

alleges that the trial court committed plain error when it failed to conduct a 

competency hearing of K.B. 

A. Standard of Review – Ineffective Assistant of Counsel and 

Plain Error

To establish ineffective assistance of counsel, appellant must 

demonstrate that (1) counsel’s performance was deficient and (2) the deficient 

performance prejudiced the defendant so as to deprive him of a fair trial. State v. 

Trimble, 2009-Ohio-2961, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687, 

(1984). The failure to prove either prong of this two-part test makes it unnecessary 

for a court to consider the other prong. State v. Madrigal, 2000-Ohio-448, citing 

Strickland at 697; State v. Giguere, 2023-Ohio-4649, ¶ 28 (8th Dist.).

“‘The failure to object to error, alone, is not enough to sustain a claim 

of ineffective assistance of counsel.’” State v. Dix, 2023-Ohio-4123, ¶ 32 (8th Dist.), 

quoting State v. Holloway, 38 Ohio St.3d 239, 244 (1988). However, the failure to 

object waives all but plain error. Crim.R. 52(B); State v. Rogers, 2015-Ohio-2459, 

¶ 28.

To constitute plain error, there must be: (1) an error, i.e., a deviation 

from a legal rule, (2) that is plain or obvious, and (3) that affected substantial rights, 

i.e., affected the outcome of the trial. State v. Pratts, 2016-Ohio-8053, ¶ 34 (8th 

Dist.), citing State v. Barnes, 2002-Ohio-68. As the Supreme Court clarified in 

Rogers, the accused is “required to demonstrate a reasonable probability that the 
error resulted in prejudice — the same deferential standard for reviewing ineffective 

assistance of counsel claims.” Id. at ¶ 22, citing United States v. Dominguez Benitez, 

542 U.S. 74, 81-83, (2004); State v. Thomas, 2017-Ohio-8011, ¶ 33. Nevertheless, 

even if the plain-error standard is met, courts should only notice it “with the utmost 

caution, under exceptional circumstances and only to prevent a manifest 

miscarriage of justice.” State v. Long, 53 Ohio 2d. 91 (1978), at paragraph three of 

the syllabus.

B. Expert Testimony Verses Lay Testimony

1. The SANE Nurse’s Testimony

Bright argues that the SANE nurse improperly provided expert 

testimony without being qualified as an expert or providing an expert report in 

accordance with Crim.R. 16(K), which requires exclusion of expert testimony if an 

expert report is not provided 21 days prior to trial. State v. Boaston, 2020-Ohio1061, ¶ 55. Specifically, Bright complains that the SANE nurse offered opinions as 

to the typical manner of disclosure of child sexual-assault victims — how, when, and 

why they may or may not disclose. He contends that defense counsel was ineffective 

when he did not object to this testimony and the trial court committed plain error 

by allowing the testimony, because it bolstered K.B. and N.B.’s credibility. In 

support of his argument, Bright relies on State v. McGhee, 2017-Ohio-5773 (11th 

Dist.) and State v. Harris, 2018-Ohio-578 (8th Dist.). Bright’s reliance, however,

on McGhee and Harris is misplaced.
In McGhee, the issue involved a non-treating physician’s expert 

testimony regarding delayed disclosures and lack of physical findings in sexual 

assaults. The State provided an expert report a few days before the trial. The 

Eleventh District held that the expert’s testimony should have been excluded in 

accordance with Crim.R. 16(K) because it was not provided 21 days before trial, 

stating that “[t]he purpose of Crim.R. 16(K) is to prevent surprise, trial by ambush.” 

McGhee at ¶ 19-21. 

In Harris, the appellant complained that the social worker, who was 

qualified as an expert, improperly vouched for and unfairly bolstered the childvictim’s testimony when the social worker testified that she “did not have any 

concerns” with the victim being “untruthful” and that the victim disclosed 

information that was “a grooming kind of activity,” and that a child abuser is 

typically someone the child knows. This court held that although it is impermissible 

for an expert witness to offer her opinion as to the truth of the child’s statements, it 

is permissible for testimony, “which is additional support for the truth of the facts 

testified to by the child, which assists the fact finder in assessing the child’s veracity.” 

Harris at ¶ 42-43. We noted that the child victim testified and was subject to crossexamination and concluded that the trier of fact was able to ascertain the credibility 

of the victim, and that the court did not abuse its discretion by qualifying the social 

worker as an expert and admitting her testimony. Id. at ¶ 44.

The State argues that the SANE nurse testified as a lay witness in 

accordance with Evid.R. 701, which provides that “if the witness is not testifying as 
an expert, the witness’ testimony in the form of opinions or inferences is limited to 

those opinions or inferences which are (1) rationally based on the perception of the 

witness and (2) helpful to a clear understanding of the witness’ testimony or the 

determination of a fact in issue.” Therefore, the State contends that an expert report 

was not required under Crim.R. 16(K).

In support of its argument, the State relies on State v. Belle, 2019-

Ohio-787 (8th Dist.). In Belle, the appellant argued that the SANE nurse testified as 

an “expert” regarding the effect of trauma on a victim’s memory without being 

qualified as an expert. This court disagreed, noting that before asking her questions 

about trauma and memory, the prosecutor elicited information about her training 

and experience regarding the “neurobiology of trauma,” the effect of trauma on the 

brain, and how she had seen that manifest in sexual-assault victims. Id. at ¶ 40-41. 

We concluded that the SANE nurse’s testimony was permissible lay-witness 

testimony because “[t]he state had laid a foundation demonstrating that she had a 

sufficient amount of experience and training and her testimony here was based on 

her personal knowledge and experience.” Id. at ¶ 48.

In the instant case, the testimony was elicited from the examining 

SANE nurse who explained to the jury, based on her experience, that there are 

several reasons why a child may not want to disclose abuse, including fear that they 

may get in trouble, not having the words to describe what happened to them, lack of 

understanding that what happened was wrong, or fear of not being believed. She 

testified that children may not disclose for days, weeks, or months after the abuse 
happens. Lastly, she testified that children often disclose the least invasive act first, 

and once they feel safe sharing, disclose further information. This testimony was 

general in nature and not pertaining to K.B. or N.B. specifically. 

In addition, prior to this testimony, the SANE nurse detailed her 

education and credentials, including that she is the pediatric forensic program 

coordinator at University Hospitals Rainbow Babies and Children’s Hospital; she 

has been trained as a SANE nurse for over 12 years; she has performed nearly 1,000 

exams; and she has trained many nurses and physicians over the years on how to 

perform forensic sexual-assault exams. 

We find that this case is similar to Belle and conclude that the SANE 

nurse’s testimony was permissible lay-witness testimony because the State laid a 

foundation demonstrating that the SANE nurse had sufficient experience and 

training, and that her testimony was based on her personal knowledge and 

experience. Because the SANE nurse’s testimony was properly admitted, 

Crim.R. 16(K) was not violated; counsel’s failure to object was not deficient 

performance; and the trial court did not commit plain error by allowing the 

testimony.

2. The Social Worker’s Testimony

Bright argues that the social worker also provided expert testimony 

without supplying an expert report in violation of Crim.R. 16(K). He specifically 

complains that the social worker testified regarding “active” and “inactive” stages of 

disclosure, and how in the “active” stage, children will disclose abuse, but in the 
“inactive” stage they may recant their prior disclosure. The social worker testified 

that the children were in the “active” stage when she met with them. (Tr. 390-391.) 

Bright argues that his defense counsel should have objected to this testimony, and 

it was plain error for the court to allow the testimony. The State contends that it was 

permissible lay-witness testimony. Again, we must first determine whether the 

social worker provided lay or expert testimony before we determine if Crim.R. 16(K) 

was violated. 

In a similar case, State v. Mathis, 2019-Ohio-3654 (8th Dist.), the 

defendant argued that the sex-abuse social worker improperly provided expert 

testimony regarding the manner in which sexually abused children disclose their 

abuse, and that the testimony was improperly used to bolster the victim’s testimony. 

This court noted that before offering her opinion, the social worker briefly 

summarized her education and credentials, which included specialized sexual-abuse 

training in interviewing children, 22 years in the sexual-abuse department and 

investigation into approximately 2,000 cases. This court found that the social 

worker’s testimony “that it is ‘pretty common’ for sexually abused children to 

disclose the abuse in a ‘long-term disclosure’” was based on her firsthand experience

and helpful to determine a fact at issue in the case, and thus permissible lay-witness 

testimony. Id. at ¶ 63, see also State v. Sellers, 2022-Ohio-581 (11th Dist.), 

(concluding that testimony by a social worker “about the manner in which sexually 

abused children disclose the nature of their abuse based on her experience with such 

cases,” is admissible lay opinion testimony.), Id. at ¶ 31, quoting Mathis at ¶ 61-63.
Here, prior to the testimony complained of, the social worker testified 

that she was a sex abuse intake worker for Cuyahoga County Division of Children 

and Family Services for six years and had been trained in forensic interviewing of 

alleged child victims. She testified that she has investigated hundreds of sex-abuse 

cases and interviewed hundreds of alleged child victims. 

Likewise, we find that the social worker’s testimony was permissible 

lay-witness testimony because the State laid a foundation demonstrating that she 

had sufficient experience and training and that her testimony was based on her 

personal knowledge and experience. Because the social worker’s testimony was 

properly admitted lay-witness testimony, Crim.R. 16(K) was not violated; counsel’s 

failure to object was not deficient performance; and the trial court did not commit 

plain error by allowing the testimony.

3. The DNA Expert’s Testimony

Bright argues that although the DNA analyst was qualified as an 

expert and Bright was provided with the DNA reports (State’s exhibit Nos. 1 and 2), 

the expert testified outside the scope of her report when she explained the process 

of “differential extraction” because this process was not specifically addressed in her 

report. As a result, Bright contends that defense counsel was deficient when he 

failed to object to this testimony, and the court committed plain error when it 

allowed the testimony. We find Bright’s arguments unpersuasive.

Here, Bright was provided with two DNA reports, as well as the 

forensic DNA expert’s Curriculum Vitae, prior to trial in accordance with 
Crim.R. 16(K)’s 21 day requirement. The reports set forth the items tested for the 

presence of DNA and the results of the DNA testing. (State’s exhibit Nos. 1 and 2.) 

Crim.R. 16(K) governs expert witnesses and expert reports, and it states:

An expert witness for either side shall prepare a written report 

summarizing the expert witness’s testimony, findings, analysis, 

conclusions, or opinion, and shall include a summary of the expert’s 

qualifications. The written report and summary of qualifications shall 

be subject to disclosure under this rule no later than twenty-one days 

prior to trial, which period may be modified by the court for good cause 

shown, which does not prejudice any other party. Failure to disclose 

the written report to opposing counsel shall preclude the expert’s 

testimony at trial.

We note that Crim.R. 16(K) requires a written report summarizing an 

expert witness’s testimony, findings, analysis, conclusions, or opinions, not a 

detailed itemization of the expert’s testimony. Indeed, the purpose of Crim.R. 16(K) 

is to avoid unfair surprise by providing notice to the opposing side so the party has 

the opportunity to challenge the expert’s findings, analysis, or qualifications. 

Boaston, 2020-Ohio-1061, ¶ 48. 

In State v. Thompson, 2021-Ohio-3184 (1st Dist.), the appellant 

argued that the trial court erred by allowing the Hamilton County Crime Lab drug 

analyst, who tested and identified the substances recovered from Thompson’s 

person upon arrest, to present expert testimony without providing an adequate 

expert report. Thompson argued that the “cursory summary of data” contained in 

the one-paged “Official Crime Laboratory Report” that described the substances

tested, the weight of each substance, and the identity of the substances should not 

be considered a Crim.R. 16(K) report. The First District Court disagreed finding that 
the expert’s opinion “was confined to describing and identifying the four substances

she tested; her report reflects all of this information.” Id. at ¶ 38. The court held 

that the one-page report complied with Crim.R. 16(K). 

Similarly, in this case, a review of the transcript and State’s exhibit

Nos. 1 and 2 reveals that the DNA expert’s testimony was confined to describing the 

processes used to obtain the DNA results set forth in the reports provided. The 

expert explained “differential extraction” and testified that “everywhere we say 

‘epithelial fraction’ or ‘sperm fraction’ [in the report], that means the item went 

through the ‘differential extraction’[process].” (Tr. 411-412.) A review of the reports 

discloses that “epithelial fraction” and “sperm fraction” are listed multiple times 

throughout both reports, which we find is sufficient notice to the defense. This 

notice allowed the defense an opportunity to challenge the expert’s findings, 

analysis, or qualifications, and the defense counsel in this case did cross-examine 

the DNA expert regarding the processes and the results. Therefore, we conclude that 

the DNA expert’s testimony did not go beyond the scope of the DNA reports. She 

merely explained the process by which the results were obtained.

Because the expert testimony was not beyond the scope of the DNA 

reports provided to defense, Crim.R. 16(K) was not violated; counsel’s failure to 

object was not deficient performance; and the trial court did not commit plain error 

by allowing the testimony.
C. Competency of a Witness

Bright alleges that it was plain error for the trial court not to conduct 

a competency hearing before eight-year-old K.B testified, because she was clearly 

incompetent to testify. He also argues that he received ineffective assistance of 

counsel when his defense counsel failed to request a hearing on K.B.’s competency. 

The State argues that K.B. was competent to testify and the State conducted what 

amounted to a voir dire of K.B.’s competency at the beginning of her testimony. 

Evid. R. 601 requires that “[e]very person is competent to be a witness 

except as otherwise provided in these rules.” Although prior versions of the rule 

contained a provision expressly dealing with children under ten years old, the 

current rule does not. State v. Azali, 2023-Ohio-4643, ¶ 11-13, (8th Dist.), citing 

State v. Haywood, 2023-Ohio-1121, ¶ 21 (7th Dist.).

Nevertheless, R.C. 2317.01 states: “All persons are competent 

witnesses except those of unsound mind and children under ten years of age who 

appear incapable of receiving just impressions of the facts and transactions 

respecting which they are examined, or of relating them truly.” (Emphasis added.) 

Because of this, the Supreme Court of Ohio has held that a “trial court must conduct 

a voir dire examination of a child under ten years of age to determine the child’s 

competence to testify.” State v. Maxwell, 2014-Ohio-1019, ¶ 100. In making its 

competency determination, the Supreme Court of Ohio has directed trial courts to 

consider the following factors: 
(1) the child’s ability to receive accurate impressions of fact or to 

observe acts about which he or she will testify; (2) the child’s ability to 

recollect those impressions or observations; (3) the child’s ability to 

communicate what was observed; (4) the child’s understanding of truth 

and falsity; and (5) the child’s appreciation of his or her responsibility 

to be truthful. 

State v. Frazier, 61 Ohio St.3d 247, 251-252 (1991).

Although it is preferred for the trial court to conduct a competency 

hearing before allowing children under the age of ten to take the stand, it is not 

automatically plain error.

2 State v. Crenshaw, 2020-Ohio-4922, ¶ 61-62 (8th Dist.), 

see also, Warrensville Hts. v. Thomas, 2001 Ohio App. LEXIS 3724 (8th Dist. 

Aug. 1, 2001); State v. Morgan, 31 Ohio App.3d 152 (1st Dist. 1985). 

Both parties contend that State v. Pridgett, 2016-Ohio-687 (8th 

Dist.) supports their respective positions. In Pridgett, this court found no error

when the child victim testified after the prosecutor and judge conducted what 

amounted to a voir dire of her competency at the beginning of her testimony. This 

court applied the Frazier factors to the child’s testimony finding that “she was able 

to testify with great detail and clarity about how Pridgett touched her, using 

anatomically correct dolls. She was able to receive those impressions of fact and 

recollect them. She testified as to the difference between the truth and a lie, giving 

examples of both. She also testified that it was bad to lie, and that she was not 

allowed to lie thus, appreciating her responsibility to be truthful. She was able to 

2 Generally, appellate courts review a trial court’s competency determination 

under an abuse of discretion standard. State v. Grahek, 2003-Ohio-2650, ¶ 22 (8th 

Dist.). However, because defense counsel failed to object, we review under the plain-error 

standard. 
give a detailed description of her room, the items contained in the room, and even 

the lock on the door of her bedroom. [The child] was able to communicate and relate 

her understanding of the truth and falsity.” Id. at ¶ 13.

Here, before K.B. testified, the court swore her in and said:

THE COURT: Do you know how to pinkie swear? Do you know what 

to tell the truth is?

THE WITNESS: Yeah.

THE COURT: Can you pinkie swear with me you’ll tell the truth, okay?

THE WITNESS: Yes.

THE COURT: Okay, thank you. You may inquire.

(Tr. 291.)

The State inquired as to her first and last name and K.B. provided a 

response to both. Then the State asked where she lived.

THE WITNESS: We live out here now, but I think tomorrow we are

going to go back.

THE STATE: Where is “Back”?

THE WITNESS: Back to Arizona — no, back to California.

THE STATE: California, okay.

THE STATE: How old are you, [K.B.]?

THE WITNESS: Eight.

THE STATE: Eight? When is your birthday?

THE WITNESS: I don’t know.

THE STATE: You don’t know? Okay. Have you met me before?

THE WITNESS: (No verbal response.)
THE STATE: Okay. Is that a “Yes”?

THE WITNESS: Yes.

THE STATE: Yeah. Do you remember my name?

THE WITNESS: (No verbal response.)

THE STATE: That’s okay. I’m Amanda, okay? I’ve got some questions. 

[K.B.], what is your mommy’s name?

THE WITNESS: [Provides Mom’s name]

THE STATE: And what’s your daddy’s name?

THE WITNESS: Rick.

THE STATE: Rick? That’s your daddy’s name? And who do you live 

with now?

THE WITNESS: My mom and my sister.

THE STATE: Did you ever live with daddy?

THE WITNESS: (No verbal response.)

THE STATE: Yeah?

THE WITNESS: Yeah.

THE STATE: How long ago?

THE WITNESS: I don’t know.

THE STATE: You don’t know?

(Tr. 291-293.)

K.B. went on to say that the last time she was with her dad was when 

she was seven, it was warm outside, and she had just finished school. She did not 

know the difference between a “good touch” or a “bad touch.” (Tr. 293.) At first, she 

denied seeing her dad’s “private part,” the State then said, “I know this is hard, okay, 
but you’ve got to tell the truth.” (Tr. 295-296.) K.B. did not respond. Eventually, 

K.B. relayed some of what she originally reported to the SANE nurse, and the social 

worker. 

After reviewing K.B.’s testimony, we cannot say that K.B. was 

competent to testify. Neither the State nor the court established the child’s ability 

to receive accurate impressions of fact or to observe acts about which she would

testify; the child’s ability to recollect those impressions or observations; the child’s 

ability to communicate what was observed; the child’s understanding of truth and 

falsity; or the child’s appreciation of her responsibility to be truthful. Nevertheless, 

the inquiry does not end there, we must still decide if allowing K.B. to testify 

prejudiced Bright so as to deprive him of a fair trial. 

In this case, K.B.’s statements to the SANE nurse were read into the 

record, and K.B.’s interview with the social worker was played for the jury. (State’s 

exhibit Nos. 3 and 7.) Both statements gave a detailed account of K.B.’s accusations, 

far more detailed than her testimony. Consequently, we cannot say that Bright was 

prejudiced by her testimony. If anything, K.B.’s testimony helped Bright obtain an 

acquittal of the vaginal rape charge. Because we find that Bright was not prejudiced 

by K.B.’s testimony, we cannot say defense counsel was ineffective or the trial court’s 

error in not conducting a competency hearing rose to the level of plain error.

D. Closing Argument

Lastly, Bright argues that his defense counsel was ineffective for 

failing to object to the State’s improper comment, “in this case, I would argue there 
is no reasonable doubt. None has been presented to you.” (Tr. 613.) Bright argues 

that this statement improperly implies that Bright bears the burden to prove 

reasonable doubt and in essence the State committed prosecutorial misconduct. 

Again, we note that “[t]he failure to object to error, alone, is not 

enough to sustain a claim of ineffective assistance of counsel.” Dix, 2023-Ohio-4123, 

at ¶ 13 (8th Dist.), quoting Holloway, 38 Ohio St.3d at 244. Furthermore, a

prosecutor has wide latitude in closing argument and is free to comment on what 

the evidence has shown and reasonable inferences that can be drawn from that 

evidence. State v. Harris, 2017-Ohio-2751, ¶ 84 (8th Dist.). However, a prosecutor 

must avoid any declarations, claims, or averments that are deliberately calculated to 

mislead a jury. Parma v. Perotti, 2024-Ohio-1359, ¶ 8 (8th Dist.), citing State v. 

Maurer, 15 Ohio St.3d 239 (1984). An allegation of prosecutorial misconduct in 

closing argument must be reviewed to determine whether any remarks were 

improper and, if so, whether they prejudicially affected Bright’s substantial rights.

A conviction can only be reversed on the grounds of prosecutorial misconduct if the 

effect of the misconduct permeated the entire trial and Bright has demonstrated that 

but for the prosecutor’s improper statements, he would have prevailed at trial. 

Broadview Hts. v. Thomas, 2023-Ohio-4645 (8th Dist.). 

Here, the State’s comment — “in this case, I would argue there is no 

reasonable doubt. None has been presented to you” — is arguably improper. 

However, the instructions on reasonable doubt and the State’s burden of proof were

read to the jury multiple times throughout trial. Further, when reviewing the 
statement in the context of the whole trial, we cannot say that but for this improper 

statement Bright would have prevailed at trial. Therefore, the failure to object did 

not prejudice Bright. 

For the reasons set forth above, we conclude that Bright’s defense 

counsel was not deficient, and the trial court did not commit plain error.

Accordingly, Bright’s first, second, and third assignments of error are 

overruled. 

E. Cumulative Error

Under Bright’s fourth assignment of error, he argues that if the errors 

complained of in the first three assignments of error, standing alone, do not call for 

reversal of his conviction, cumulatively, they deprived Bright of a fair trial. We 

disagree. 

Under the doctrine of cumulative error, a conviction will be reversed 

when the cumulative effect of errors in a trial deprives a defendant of the 

constitutional right to a fair trial even though each of the errors does not individually 

constitute cause for reversal. State v. Allen, 2016-Ohio-102, ¶ 53, citing State v. 

Garner, 1995-Ohio-168. However, the doctrine of cumulative error is inapplicable 

when the alleged errors are found to be harmless or nonexistent. Id.; State v. 

Brown, 2003-Ohio-5059, ¶ 48. Because this court has found Bright’s arguments 

with regard to his other assignments of error unpersuasive, the cumulative-error 

doctrine does not apply.

Accordingly, Bright’s fourth assignment of error is overruled. 
F. Sufficiency and Manifest Weight of the Evidence

In his fifth and sixth assignments of error, Bright argues that K.B.’s 

testimony and statements made to the SANE nurse and the statements made to the 

social worker were inconsistent with each other and thus his convictions are against 

the sufficiency of the evidence and the manifest weight of the evidence. We disagree. 

The test for sufficiency requires a determination of whether the 

prosecution met its burden of production at trial. State v. Bowden, 2009-Ohio3598, ¶ 12 (8th Dist.). An appellate court’s function when reviewing sufficiency is to 

determine “‘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.’” State v. Leonard, 2004-Ohio-6235, 

¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

With a sufficiency inquiry, an appellate court does not review whether 

the State’s evidence is to be believed but whether, if believed, the evidence admitted 

at trial supported the conviction. State v. Starks, 2009-Ohio-3375, ¶ 25 (8th Dist.), 

citing State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. A sufficiency of the 

evidence argument is not a factual determination, but a question of law. Thompkins

at 386.

“While the test for sufficiency requires a determination of whether the 

prosecution has met its burden of production at trial, a manifest weight challenge 

questions whether the prosecution has met its burden of persuasion.” Bowden,

supra, citing Thompkins, supra. “When considering a manifest-weight claim, a 
reviewing court must examine the entire record, weigh the evidence, and consider 

the credibility of witnesses.” Id., citing State v. Thomas, 70 Ohio St.2d 79, 80 (1982). 

The court may reverse the judgment of conviction if it appears that the factfinder 

“‘“clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed, and a new trial ordered.”’” Id., quoting Thompkins at 

387, quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st Dist. 1983). A judgment 

should be reversed as against the manifest weight of the evidence “only in the 

exceptional case in which the evidence weighs heavily against the conviction.” Id., 

quoting Martin. 

“‘Challenges to the sufficiency of the evidence based upon instances 

of inconsistent testimony, memory defects, and the like are witness credibility issues 

which are properly resolved by the trier of fact.’” State v. Parke, 2023-Ohio-1144, 

¶ 16-17 (8th Dist.), quoting State v. Nichols, 2013-Ohio-3898, ¶ 13 (5th Dist.). 

Further, “[a] defendant is not entitled to reversal on manifest weight grounds merely 

because certain aspects of a witness’ testimony are inconsistent or contradictory.” 

State v. Williams, 2024-Ohio-838, ¶ 54 (8th Dist.), quoting Flores-Santiago, 2020-

Ohio-1274, ¶ 40 (8th Dist.).

3 Finally, the jury may detect any number of 

3 See also State v. Wade, 2008-Ohio-4574, ¶ 38 (8th Dist.) (“‘A conviction is not 

against the manifest weight of the evidence solely because the [factfinder] heard 

inconsistent testimony.’”), quoting State v. Asberry, 2005-Ohio-4547, ¶ 11 (10th Dist.); 

State v. Mann, 2011-Ohio-5286, ¶ 37 (10th Dist.) (“‘While [a factfinder] 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.’”), quoting State v. Nivens, 1996 Ohio App. LEXIS 2245 (May 28, 1996, 10th 

Dist.). 
inconsistencies and resolve them accordingly, “‘believ[ing] all, part, or none of a 

witness’s testimony.’” State v. Brown, 2019-Ohio-313, ¶ 21 (8th Dist.), quoting State 

v. Raver, 2003-Ohio-958, ¶ 21 (10th Dist.), citing State v. Antill, 176 Ohio St. 61, 67 

(1964).

Here, although K.B. and N.B.’s testimony and statements regarding 

who told who about the sexual abuse were inconsistent, both K.B. and N.B.’s 

testimony and statements describing the sexual conduct perpetrated on K.B. and 

N.B. by Bright were consistent. Both girls testified that Bright forced K.B. to “suck 

his peanuts” and touched both of their “bottoms.” Further, a sperm fraction with 

Bright’s DNA was found on the toothbrush that K.B. testified she used to get the 

“icky stuff” out of her mouth, as well as on K.B.’s pajama shirt, which corroborated

their testimony.

Therefore, we find that after viewing the evidence in the light most 

favorable to the State, any rational trier of fact could have found the essential 

elements of the crimes charged. Furthermore, after reviewing the entire record, 

weighing all the evidence, and considering the credibility of witnesses, we cannot 

say that the jury clearly lost its way; thus, Bright’s convictions are not against the 

sufficiency of the evidence or the manifest weight of the evidence. 

Accordingly, Bright’s fifth and sixth assignments of error are 

overruled. 
G. Reagan Tokes and Life Sentence

Under Bright’s seventh assignment of error, he argues, and the State 

concedes, that the sentencing entry is incorrect because it states, “[t]he sentence 

imposed upon the defendant is an indefinite sentence under SB 201 — The Reagan 

Tokes Law, under SB 201 the aggregate minimum term imposed by the court is life 

25 years before eligibility for parole, if granted parole the maximum term is 37.5

years, under Reagan Tokes.” (Journal Entry, May 11, 2023). Both parties agree that 

the Reagan Tokes Act does not apply to sentences that carry a life-tail. In addition,

both parties agree that the court properly stated Bright’s sentence on the record at 

the sentencing hearing.

“‘The function of a nunc pro tunc entry is not to change, modify, or 

correct erroneous judgments, but merely to have the record speak the truth.’” State 

v. Kimmie, 2013-Ohio-2906, ¶ 20 (8th Dist.), quoting Ruby v. Wolf, 39 Ohio App. 

144, 147, (8th Dist. 1931). A nunc pro tunc entry is properly used to reflect “‘what 

the court actually decided.’” State v. Dejesus, 2023-Ohio-2485, ¶ 34 (8th Dist.), 

quoting State ex rel. Cruzado v. Zaleski, 2006-Ohio-5795, ¶ 19. 

The record reveals that at the sentencing hearing the court properly 

sentenced Bright to 25 years to life under R.C. 2971.03(B)(1)(b) because he was 

convicted of rape of a child under ten years of age in violation of 

R.C. 2907.02(A)(1)(b); however, the sentencing entry is incorrect. Therefore, the 

case is remanded to the trial court for a nunc pro tunc correction of the sentencing 

entry. 
Accordingly, Bright’s seventh assignment of error is sustained. 

III. Conclusion

We conclude that Bright’s defense counsel was not deficient, and that 

the trial court did not commit plain error. Further, his convictions were not against 

the sufficiency or manifest weight of the evidence. Therefore, Bright’s convictions 

are affirmed. However, we remand the matter to the trial court to correct its 

sentencing entry. 

Accordingly, the judgment is affirmed and remanded to the trial court 

solely for the purpose to issue a nunc pro tunc correction of the sentencing entry

deleting the Reagan Tokes language. The entry should read 25 years to life. 

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

________________________

MARY J. BOYLE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and

EILEEN T. GALLAGHER, J., CONCUR