Opinion
2023-CA-0048
09-24-2024
STATE OF OHIO Plaintiff-Appellee v. STONIE BUTLER Defendant-Appellant
For Plaintiff-Appellee JODIE M. SCHUMACHER Prosecuting Attorney BY: MICHELLE FINK For Defendant-Appellant TODD W. BARSTOW
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2023-CR-0364N
For Plaintiff-Appellee JODIE M. SCHUMACHER Prosecuting Attorney BY: MICHELLE FINK
For Defendant-Appellant TODD W. BARSTOW
Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. Andrew J. King, J.
OPINION
Gwin, J.
{¶1} Defendant-appellant Stonie M. Butler ["Butler"] appeals his convictions and sentences after a jury trial in the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} On May 19, 2023, Butler was indicted on the following charges,
Butler's brother, Stephen Hughes, was indicted as a co-defendant in a separate case. See, State v. Hughes, 5th Dist. Richland No. 2024 CA 0016.
Count 1: Rape of a child less than 13 years old [E.M.] occurring between December 1, 2020 - November 30, 2021, a felony of the first degree, in violation of R.C. 2907.02 (A)(1)(b) / (B);
Count 2: Rape of a child less than 13 years old [V.S.] occurring between December 1, 2020 - November 30, 2021, a felony of the first degree, in violation of R.C. 2907.02 (A)(1)(b) / (B);
Count 3: Rape of a child less than 13 years old [B.D.] occurring between December 1, 2020 - November 30, 2021, a felony of the first degree, in violation of R.C. 2907.02 (A)(1)(b) / (B);
Count 4: Gross Sexual Imposition of a child less than 13 years old [E.M.], occurring between December 1, 2020 - November 30, 2021, a felony of the third degree, in violation of R.C. 2907.05(A)(4) / (C)(2);
Count 5: Gross Sexual Imposition of a child less than 13 years old [B.D.], occurring between December 1, 2020 - November 30, 2021, a felony of the third degree, in violation of R.C. 2907.05(A)(4) / (C)(2);
Count 6: Gross Sexual Imposition of a child less than 13 years old [V.S.], occurring between December 1, 2020 - November 30, 2021, a felony of the third degree, in violation of R.C. 2907.05(A)(4) / (C)(2);
Count 7: Rape of a child less than 13 years old [E.M.] occurring between October 1, 2018 - June 30, 2019, a felony of the first degree, in violation of R.C. 2907.02 (A)(1)(b) / (B);
Count 8: Rape of a child less than 13 years old [V.S.] occurring between October 1, 2018 - June 30, 2019, a felony of the first degree, in violation of R.C. 2907.02 (A)(1)(b) / (B);
Count 9: Gross Sexual Imposition of a child less than 13 years old [E.M.], occurring between October 1, 2018 - June 30, 2019, a felony of the third degree, in violation of R.C. 2907.05(A)(4) / (C)(2);
Count 10: Gross Sexual Imposition of a child less than 13 years old [V.S.], occurring between October 1, 2018 - June 30, 2019, a felony of the third degree, in violation of R.C. 2907.05(A)(4) / (C)(2).2017 - 2019
{¶3} M.E. was a sophomore in high school when she became pregnant with E.M. (b. Sept. 25, 201 4) 3T. at 493; 523; 525. E.M.'s father is CM. Id. at 503; 555. CM. was twenty-five years old and M.E. was fifteen or sixteen when M.E. became pregnant. Id. at 555-556. CM. had little involvement in E.M.'s life for her first two years. Id. at 558. CM. moved to Tennessee when E.M. turned five years old. Id. at 558. CM. returned to Ohio in 2022 and has attempted to become involved in E.M.'s life. Id. at 558; 561-562.
The mother of the children, M.E., did not testify during the jury trial.
{¶4} M.E. was nineteen years old when she gave birth to VS. (b. December 6, 2017). 3T. at 493; 562-563. V.S.'s father is M.M. Id. at 563. M.E. was living with her mother in Marion, Ohio at the time. Id. at 563-564. She began receiving threats from the family of M.M., so she reached out to her friend I.E. around October, 2017. Id. I.E. became friends with M.E. while both were in high school. 3T. at 555. I.E. drove from Virginia to Ohio, and drove M.E., who was 8-months pregnant, and E.M., to Virginia. Id. at 564. V.S. was born in Virginia. Id. at 565.
{¶5} I.E. met her future wife, S.E., online in December, 2015. 3T. at 565-566. I.E. was 17 years old and S.E. was 22 years old. Id. at 705. The couple met in person in June, 2016 in Virginia. Id. 566. They moved to Ohio in August, 2016. Id. They moved back to Virginia in May, 2017 and then back to Ohio in June, 2018. Id. at 567. S.E. was pregnant via "a sperm donor" when the couple returned to Ohio in 2018. Id. at 567-568. The couple lived in a tent in the yard of M.E.'s mother's home in Marion, Ohio. 3T. at 574 - 575. The couple brought S.E.'s sister, a recovering drug addict, who was also pregnant, with them when they returned to Ohio in the summer of 2018. Id. at 576. S.E.'s brother Shane also moved to Ohio with the couple. Id. at 611 -612. Shane was living with M.E. and the children at M.E.'s mother's home in Marion, Ohio until he went back to jail. Id. at 528-529; 612; 718. I.E. and S.E.'s son Z.E. was born in Ohio. Id. at 567.
{¶6} Shane was convicted of theft, uttering, obtaining money by false pretenses, as well as lying to the F.B.I. by telling them that his ex-girlfriend was joining ISIS. 3T. At 696; 712-713. Shane was arrested for theft in Ohio as well. Id. at 718. S.E. was also convicted of felony embezzlement. Id. 709.
{¶7} M.E. lived with I.E. from November, 2017 until June, 2018. 3T. at 526. M.E. began seeing Butler in December, 2018. 3T. at 525. The couple broke up in May/June 2019. Id. 526. I.E. only met Butler one time in December, 2018. Id. at 525.
2019 - 2020
{¶8} M.E. gave birth to B.D. on September 5, 2019. 3T. at 494; 569. It was originally believed that Butler was B.D.'s father. Id. at 570; 6T. at 1131. M.E. was living in Marion, Ohio at this time. 3T. at 571.
{¶9} In 2019 - 2020, A.S., a former boyfriend of M.E., was abusive toward her and the children. 3T. at 589; 591; 593. I.E. reported seeing bruises and cigarette burns on E.M. and she took pictures of the injuries with her cell phone. Id. at 590-592. I.E. did not report the injuries to Children's Services, or show them the pictures. Id. at 592. I.E. did not contact the police, or show them the pictures, of E.M.'s injuries. Id. 592-593. Rather, she trusted M.E. to remove herself and the children from the situation. Id. at 597 - 598.
{¶10} In June, 2019, I.E. and S.E. testified that E.M., who was three years old at the time, was at their home. 3T. at 531; 537; 688. As music was playing, the couple observed E.M. drop to her knees, tilt her head back and imitate giving oral sex to someone. Id. I.E. testified that E.M. told her she was "sexually abused." 3T. at 532. E.M. told I.E. that she learned the behavior from Butler. Id. at 641. She further said Butler "scratched her kitty, meaning her vagina. Id. at 642. She also reported that she had witnessed Butler doing the same to V.S. Id. at 642-643. E.M. testified that the abuse occurred at the home of Butler and his girlfriend, E.L., at 150 Crouse Street in Mansfield. 2T. at 366; 372-373.
{¶11} I.E. reported the incident to M.E. Id. at 619. I.E. did not report the incident to either Children's Services or the police, trusting that M.E. would do so. Id. at 619. M.E. did not report the incident to the authorities.
2021
{¶12} On July 18, 2021, Jolene Zehner, a case worker with Richland County Children's Services, visited Butler's home on Crouse Street. 5T. at 1045. Butler, his girlfriend, E.L., her two minor children, and E.L.'s mother were present and living at the home. Id. at 1064. Zehner went to the home in response to a reported concern of neglect and medical neglect involving E.L.'s children. Id. at 1047; 1051 -1052. E.L.'s mother does not have any legs and is not ambulatory. Id. at 1071. She remained in a chair watching T.V. during the visit. Zehner described the home as a squalor and in despicable conditions. The two children were ultimately removed from the home. Id. at 1066.
E.M. denies being sexually abused
{¶13} On August 10, 2021, M.E. took E.M. to the Richland County Sherriffs Department. 4T. at 755; 757. Because there was a report of sexual abuse involving Butler, E.M. was interviewed by Amy Logan-Amelung a caseworker with Richland County Children Services. Id. Logan-Amelung conducted a forensic interview of E.M. Id. at 755; 6T. at 1209. The video recording of this interview was subsequently lost. Id. at 757 - 758; 780-781. However, a transcript of the interview survived. 4T. at 781-782. E.M. told Logan-Amelung during that interview that nobody "touched her private parts except for her sisters, but they're just babies." Id. at 783; 788-789. E.M. further denied that anyone had taken pictures of her. Id. E.M. told Logan-Amelung that "she felt safe at [Butler's] house." Id. at 783; 788-789.
{¶14} On August 27, 2021, M.E. and the children were staying at the home of J.S.'s father. 6T. at 1121-1122; 1214. M.E. was pregnant with L.S. at that time. Id. at 1122. Because of an incident between J.S. and his father, M.E. was told by Richland County Children's Service's that she needed to find somewhere else for her and the children to live. 6T. at 1127; 1218. M.E. was also told not to allow Butler to have unsupervised visits with the children. 6T. at 1216. Because she had evictions in her past, M.E. had trouble finding housing. Id. at 1128. She moved to the home of J.S.'s grandmother. Id. at 1128.
J.S. is the father of M.E.'s fourth child L.S.
E.M.'s teacher notices unusual behavior in mid-November, 2021
{¶15} E.M. had been staying with I.E. since September 27, 2021. 3T. at 549. In November, 2021, M.E. and the children moved in with I.E. and S.E. on Henry Street in Marion, Ohio. 6T. at 1132 - 1133; 1135 - 1136; 1219 -1220. M.E. enrolled E.M. in school in Marion, Ohio. Id. at 1230.
{¶16} In mid-November, 2021, E.M. began attending school in Marion, Ohio. 3T. at 662-663; 665. Her teacher, Dawn Couts, testified that E.M. was constantly asking to go to the bathroom. Id. at 666. E.M. was always looking under the girl's stalls in the bathroom and would lick the bathroom floors. Id.
2022
{¶17} In December, 2021, and January, 2022 contact with M.E. was affected by the pandemic. 6T. at 1222-1223; 1226.
{¶18} M.E. had a fourth child, L.S., whose father is J.S., born January 31, 2022. 2T. at 495; 3T. at 571; 6T. at 1140.
{¶19} In February, 2022, DNA tests proved that Butler was not B.D.'s father. 6T. at 1134; 1139.
Caseworker testifies E.M. possibly being bullied
{¶20} In February, 2022 E.M. was back living at the home of J.S.'s grandmother. Id. at 1226-1227. E.M. was visiting with I.E. at the time of the visit in February. 6T. at 1139-1141.
{¶21} In February, 2022, I.E. and S.E. were in the process of moving to the home of I.E.'s mother on Irey Avenue in Marion, Ohio. 6T. at 1227-1228. Sara Sharp, a caseworker for Richland County Children's Services, visited the home on February 23, 2022. Id. at 1228. While speaking with I.E., Sharpe got the impression that she was E.M.'s mother. Id. at 1231. She further felt that M.E. was being bullied by I.E. and her mother. Id. 1231-1232.
{¶22} On March 23, 2022, Sharp met with E.M. at her new apartment on Libby Lane in Marion, Ohio. 6T. at 1232. J.S. was with E.M. at the time. Id. at 1233. At some point, J.S. had a mental health crisis that required his hospitalization. Id. at 1234 -1235. The couple were subsequently evicted from the Libby Road address. Id. at 1241.
M.E. moves in with Butler's girlfriend in 2022
{¶23} On April 27, 2022, Sharp met with M.E. who was now living with E.L., Butler's girlfriend. 6T. at 1242. Butler was not at the residence on that date. Id. V.S. and B.D. were also at the residence. Id. at 1243. E.M. was staying with I.E. and S.E. and attending school in Marion, Ohio. Id. at 1243. M.E. was told to find somewhere else to live. Id. at 1165 - 1167.
M.E. and J.S. are arrested for possessing marijuana
{¶24} Around May 2, 2022, Sharpe was informed that J.S. and M.E. had been arrested for aggravated possession of marijuana after a traffic stop in Richland County, Ohio. 6T. at 1169. The children, with the exception of E.M., were in the car at the time of the stop. Id. M.E. was arrested on an outstanding warrant for failure to appear. Id.
{¶25} On May 5, 2022, after discussing the situation, M.E. and J.S. verbally agreed to a Plan of Safety whereby the children would go with I.E. and S.E. 6T. at 1172-1173. I.E. and S.E. were formally granted temporary custody of the children in July, 2022. 6T. at 1181.
E.M.'s teacher again notices unusual behavior
{¶26} E.M.'s teacher, Dawn Couts, testified that in late May, 2022, E.M. used a dry erase marker to draw two x's on her hand. 3T. at 667. E.M. was telling the children who had gathered around her desk that her hand was her boyfriend's private parts and she was licking them. Id. Couts understood the reference to mean her boyfriend's penis. Id. at 667-668. The teacher reported the behavior to I.E. Id. at 669.
E.M. and V.S. sexually acting out while in I.E. and S.E.'s care
{¶27} V.S. has little communication skills and is hard to understand. 3T. at 497-498. S.E. testified that in May, 2022, when V.S. was four years old, V.S. pulled off the diaper of Z.E., S.E. and I.E.'s son, and put his penis in her mouth. 3T. at 692 -693. V.S. would also undress her dolls and lick their private areas. Id. at 694.
{¶28} I.E. testified that in the spring of 2022, while playing on the trampoline, E.M. climbed on top of Z.E. and put her vaginal area over his mouth and put her mouth toward his penis. 3T. at 551; 6T. at 1175.
Second forensic interview indicates abuse
{¶29} On June 9, 2022, Amy Logan-Amelung a caseworker with Richland County Children Services, conducted interviews with E.M. and VS. This time, E.M. told her interviewer that she had been touched on her private parts by two people. 4T. at 760. The individuals used their mouths and their hands, and also took pictures. Id. She said she witnessed the same thing happening to her sisters. Id. at 761; State's Exhibit 13B. E.M. noted on anatomical drawings that Butler's mouth touched her vagina. Id. at 766-767. She further noted that Butler's penis touched her lips and mouth. Id. at 767. She further told the interviewer that "their hands wipe finger in my vagina." Id. at 767. Meaning, Butler and his co-defendant both did that with their hands. Id. at 768.
{¶30} Logan-Amelung attempted to interview V.S. 4T. at 770; State's Exhibit 13A. The judge had ruled V.S. incompetent to testify; however, he permitted the state to play her interview for the jury. 2T. at 443; 470 - 471. Because of her speech impediment, anatomical drawings were used by the interviewer. 4T. at 772. Through the drawings, Logan-Amelung testified that V.S. indicated Butler touched her vagina with his penis. Id. She further indicated a penis went into her mouth, but did not identify the person. Id. at 773. Via context, the interviewer concluded that V.S. was referring to Butler. Id.
{¶31} Logan-Amelung was not able to interview or use anatomical drawings for B.D. because of her age. Id. at 773. Over objection, Logan-Amelung testified that she "believe that they had been sexually abused by [Butler] and [his co-defendant]." 4T. at 775.
{¶32} Forensic Nurse Examiner Sheree Ford of Ohio Health for Marion General Hospital examined the sisters. Because VS. was only four years old and had a pronounced speech impediment, little information was obtained from her. Id. at 841-844.
{¶33} E.M. volunteered to the examiner that her brother, Z.E., "runs around the house saying, 'suck my penis,' and [her sisters] listen to him.'" 4T. at 846. When asked to clarify, E.M. told the interviewer, "both of her sisters have put their mouths on his penis and that he has put his mouth on their genitals as well." Id. at 846-847. She disclosed that Butler and his brother made her give him oral and also had put their mouths on her genitals. Id. at 851. She also disclosed they had taken photos of her. Id. at 852. Both Butler and his brother would pull their pants and underwear down and place his penis in her mouth. Id. She disclosed that Butler licked and touched her private parts with his hands. Id. at 853. E.M. said Butler and his brother did the same thing to her sisters. Id. at 854.
E.M. testifies at trial
{¶34} E.M. testified that Butler touched her "kitty cat," meaning vagina, on top with his mouth. 2T. at 379. Butler went inside her "kitty cat." Id. Butler touched her kitty cat with his penis, and put her private parts in his mouth. Id. at 379-380. E.M. testified he also did those things to her sisters. Id. at 381. Butler put his penis on V.S. and B.D.'s privates and mouths. Id. at 381-382. He did those things to her sisters in his brother's room. Id. at 384. She was able to see through the door because the doorknob was missing. Id.
{¶35} E.M. denied that she ever was forced to drink alcohol or urine. 2T. at 383-384; 391. E.M. testified that Butler and his brother's girlfriends put makeup on her for Halloween to look like her mother. 2T. at 385. E.M. identified a picture of Butler's home on Crouse Street as the place where the abuse took place. State's Exhibit 1; 2T. at 366; 378.
{¶36} E.M. testified that Butler put his penis in her mouth four times. 2T. at 435. E.M. testified that Butler put his penis in her vagina four times. Id.
Psychological testimony
{¶37} Robin Tener, a psychologist, testified that delayed disclosure, or initially denying abuse, was common amongst young children. 5T. at 947. She did not speak to the caseworkers, Dawn Couts, I.E., or S.E. Id. at 998. Dr. Tener also did not watch the video of the children's interviews. Id. at 1004. Dr. Tener did not interview E.M., V.S. or B.D., but she did review medical, law enforcement and RCCS records related to the case. Id. at 997.
{¶38} Dr. Tener related that pedophiles look for mothers such as M.E. and take advantage of their desperation as a method for gaining access to their young children. Dr. Tener also opined that pedophiles also target children with developmental delays, such as V.S., or the very young such as B.D. 5T. at 903-1033.
{¶39} In her report, Dr. Tener noted that in August, 2021, it was entirely possible that E.M. had no abuse allegations to report when she was interviewed by Children's Services. 5T. at 1009-1010; State's Exhibit 68.
The Defense case
{¶40} Detective Richard Clapp of the Richland County Sheriffs Department testified on behalf of the defense. He testified that he received a referral from RCCS in June of 2022 concerning allegations that Butler was sexually assaulting E.M., VS. and B.D. 7T. at 1305.
{¶41} He asked Butler to come to the Sheriff's office for an interview relative to those allegations. Butler came of his own volition, and voluntarily provided a statement, and a DNA sample. Clapp also examined Butler's phone, with his permission, and found nothing incriminating on it. 7T. at 1303 - 1322.
Verdict and sentence
{¶42} The jury found Butler guilty on all counts, including findings that the victims were under the age of thirteen as alleged in the respective counts in the Indictment.
{¶43} On August 11, 2023, before imposing any sentence, the trial judge heard from Butler's trial counsel, the trial prosecutor, and the victims' caregivers.
{¶44} Butler was sentenced on Count 1, rape [E.M.], to life without parole; on Count 2, rape [V.S.], to life without parole; on Count 3, rape [B.D.], to life without parole; on Count 4, gross sexual imposition [E.M.], the judge imposed a prison term of 60 months; on Count 5, gross sexual imposition [B.D.], the judge imposed a prison term of 60 months; on Count 6, gross sexual imposition [V.S.], the judge imposed a prison term of 60 months; on Count 7, rape [E.M.], to life without parole; on Count 8, rape [V.S.], to life without parole; on Count 9, gross sexual imposition [E.M.], the judge imposed a prison term of 60 months; and on Count 10, gross sexual imposition [V.S.], the judge imposed a prison term of 60 months.
{¶45} The judge ordered that the life sentences in Counts 1, 2, and 3 run consecutively to one another. On the remaining counts, 4 through 10, the judge ordered the sentences to run concurrently with Counts 1, 2, and 3. The judge indicated that, should Butler be released, he would be subject to five years of mandatory post-release control.
Assignment of Error
{¶46} Butler raises two Assignments of Error, {¶47} "I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF RAPE AND GROSS SEXUAL IMPOSITION, AS THOSE VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶48} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY PERMITTING A LAY WITNESS TO OFFER AN OPINION AS TO THE TRUTHFULNESS OF ANOTHER WITNESS' STATEMENTS."
I.
{¶49} In his First Assignment of Error, Butler argues his convictions are against the sufficiency and manifest weight of the evidence.
{¶50} Butler points to no element for any count or counts in the indictment to which he claims the record lacks sufficient evidence. Rather, Butler makes a combined argument based mostly upon the credibility of E.M.
Standard of Review - Sufficiency of the Evidence
{¶51} The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99 (2013); Hurst v. Florida, 577 U.S. 92 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker, 2016-Ohio-8295, ¶30; State v. Jordan, 2023-Ohio-3800, ¶13. "This naturally entails a review of the elements of the charged offense and a review of the state's evidence." State v. Richardson, 2016-Ohio-8448, ¶13.
{¶52} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259(1991), paragraph two of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, (1997); Walker, 150 Ohio St.3d at ¶30. "The relevant inquiry is whether, after viewing the evidence in the 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." Jenks at paragraph two of the syllabus. State v. Poutney, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, "on review for evidentiary sufficiency we do not second-guess the jury's credibility determinations; rather, we ask whether, 'if believed, [the evidence] would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Murphy, 91 Ohio St.3d 516, 543(2001), quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will not "disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.'" State v. Ketterer, 111 Ohio St.3d 70, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997); State v. Montgomery, 148 Ohio St.3d 347, ¶74.
Rape - victim less than thirteen years old
Issue for Appellate Review: Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, if believed, would convince the average mind that Butler was guilty beyond a reasonable doubt of Rape of E.M., V.S.
and B.D.
{¶53} Butler was convicted of Rape in violation of R.C. 2907.02(A)(1)(b). R.C. 2097.02 provides,
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
{¶54} "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. R.C. 2907.01(A).
{¶55} The indictment in this case alleged rape against each of the three sisters. The first group encompassed the time period from December 1, 2020 through November 30, 2021. [Counts 1, 2, and 3]. The second group alleged rape against E.M. and VS. The second group encompassed the time period from October 1, 2018 through June 30, 2019. [Counts 7 and 8]. The indictment further alleged that the victims were less than thirteen years of age at the time the crimes were committed.
{¶56} It is undisputed that E.M., V.S. and B.D. were each less than thirteen years of age when the abuse was taking place.
Time period of the sexual abuse
{¶57} We find instructive the case law that has developed concerning the failure to provide exact dates upon which a sexual assault is alleged to have occurred. In those cases, courts have found specificity as to the time and date of an offense is not required in an indictment. Under R.C. 2941.03: "an indictment or information is sufficient if it can be understood therefrom: * * * (E) That the offense was committed at some time prior to the time of filing of the indictment * * *." An indictment is not invalid for failing to state the time of an alleged offense or doing so imperfectly. The state is not required to prove that an offense occurred on any specific date, but rather may prove that the offense occurred on a date reasonably near that charged in the indictment. State v. Adams, 2002-Ohio-5953, ¶ 8 (5th Dist.).
{¶58} If such is not fatal to an indictment, it follows that impreciseness and inexactitude of the evidence at trial is not "per se impermissible or necessarily fatal to a prosecution." State v. Robinette, 1987 WL 7153 (5th Dist. Feb 27, 1987); State v. Davis, 2024-Ohio-1504, ¶ 18 (5th Dist.), appeal not allowed, 2024-Ohio-2576, ¶18. The question in such cases is whether the inexactitude of temporal information truly prejudices the accused's ability fairly to defend himself. State v. Sellards, 17 Ohio St.3d 169(1985); State v. Gingell Ohio App.3d 364, 368 (1st Dist. 1982); State v. Kinney, 35 Ohio App.3d 84 (1st Dist. 1987).
{¶59} Grafted upon the question of prejudice is a problem that cases of child abuse invariably present, i.e., a victim-witness who, due to tender years, does not have the temporal memory of an adult and has problems remembering exact times. As this court has noted, "[t]ime is neither essential nor an element of the crime of sexual battery." State v. Robinette, supra. In Robinette, this Court noted,
We note that these particular cases often make it more difficult to ascertain specific dates. The victims are young children who may reasonably be unable to remember exact times and dates of psychologically traumatic sexual abuses. This is especially true where the crimes involve several instances of abuse spread out over an extended period of time. State v. Humfleet (Sept. 9, 1985), Clermont App. No. CA84-04-031, unreported, at 15. The problem is compounded where the accused and the victim are related or reside in the same household, situations which often facilitate an extended period of abuse. An allowance for reasonableness and inexactitude must be made for such cases considering the circumstances.
{¶60} In State v. Sellards, 17 Ohio St.3d 169 (1985), the Supreme Court gave two examples of when the failure to provide specific dates and times could be prejudicial to the accused. The Court first noted that if the age of the victim were an element of the crime with which the accused had been charged and the victim bordered on the age required to make the conduct criminal, then the failure to provide a more specific time frame would be prejudicial. This is true because "specific dates of sexual conduct might well have become critical to the accused's ability to prepare a defense, since sexual conduct toward one thirteen years of age or older would not constitute the offense of rape as defined in the charged section of the criminal code, R.C. 2907.02(A)(3)." Sellards, 17 Ohio St.3d at 172. The second situation is where "the defendant had been imprisoned or was indisputably elsewhere during part but not all of the intervals of time set out in the indictment. Again, under such circumstances, the inability of the state to produce a greater degree of specificity would unquestionably prejudice the defense." Id. The Sellards court noted: "the record in this case does not indicate that the failure to provide the accused with a specific date was a material detriment to the preparation of his defense.
{¶61} In the case at bar, each of the children were still less than thirteen years old at the time of trial; therefore, it cannot be disputed that the age of the victims did not border on the age required to make the conduct criminal. Accordingly, Butler has not demonstrated prejudice by the lack of precision. Further, Butler never attempted to present an alibi defense for any time period between October 1, 2018 through June 30, 2021. Therefore, whether some acts of abuse took place in 2018 as opposed to 2021 has not been shown to be prejudicial to his defense at trial.
{¶62} E.M. testified that Butler went inside her "kitty cat." Id. Butler touched her kitty cat with his penis and put her private parts in his mouth. 2T. at 379-380; 388. E.M. testified that Butler put his private parts in her mouth. Id. at 380; 434. E.M. demonstrated for the jurors what she was made to do. Id. She testified that Butler put his penis in her mouth four times. Id. at 435. E.M. testified that Butler put his penis in her vagina four times. Id.
{¶63} E.M. testified she witnessed Butler put his penis in B.D.'s mouth. 2T. at 382. E.M. testified that she witnessed Butler put his penis in V.S.'s mouth. Id. The abuse occurred in the room of Butler's brother. Id. at 383; 384. E.M. could see because the bedroom door did not have a doorknob and she looked through the hole. Id. at 384.
{¶64} "Corroboration of victim testimony in rape cases is not required. See State v. Sklenar (1991), 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks (1991), 71 Ohio App.3d 214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio App.3d 624, 638, 591 N.E.2d 854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7 OBR 464, 455 N.E.2d 1066." State v. Johnson, 112 Ohio St.3d 210, 217, ¶ 53; State v. Triplett, 2013-Ohio-3114, ¶ 43 (5th Dist.). The prosecution is not required to produce medical or other physical evidence to corroborate the victim's testimony. Henry v. Gray, 2018 WL 10038846, *11 (6th Cir., Nov. 20, 2018), citing Johnson; State v. Sitzes, 2023-Ohio-3915, ¶40 (2nd Dist.).
{¶65} Viewing this evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Butler did commit the crime of rape against E.M., VS. and B.D. We hold, therefore, that the state met its burden of production regarding each element of the crime of Rape for which Butler was indicted and, accordingly, there was sufficient evidence to submit the charge to the jury and to support Butler's conviction.
Gross sexual imposition - victim less than thirteen years old
Issue for Appellate Review: Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, if believed, would convince the average mind that Butler was guilty beyond a reasonable doubt of Gross Sexual
Imposition of EM., V.S. and B.D.
{¶66} Butler was also convicted of Gross Sexual Imposition involving E.M., V.S. and B.D.
{¶67} Under R.C. 2907.05, the elements of gross sexual imposition as indicted in this case were:
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: …
(4) 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.
{¶68} Sexual contact is defined as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).
{¶69} E.M. testified that Butler touched her "kitty cat" on top with his mouth. 2T. at 379. E.M. was examined by Nurse Ford. E.M. disclosed that Butler put his mouth on her genitals as well as put his private on her private, rubbing his private on her private and that he has also done this to her sisters, both of them, V.S. and B.D. 6T. at 851. E.M. also disclosed that Butler and his brother would touch her with their tongue and hands when she would go to sleep. Id. at 855.
{¶70} Logan-Amelung attempted to interview VS. 4T. at 770. Because of her speech impediment, anatomical drawings were used by the interviewer. 4T. at 772. Through the drawings, Logan-Amelung testified that VS. indicated Butler touched her vagina with his penis. Id.
{¶71} Viewing this evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Butler did commit the crime of gross sexual imposition against E.M., V.S. and B.D. We hold, therefore, that the state met its burden of production regarding each element of the crime of Gross Sexual Imposition for which Butler was indicted and, accordingly, there was sufficient evidence to submit the charge to the jury and to support Butler's conviction.
Standard of Review - Manifest Weight
{¶72} Butler next argues that his convictions are against the manifest weight of the evidence. Butler contends that E.M.' s failure to disclose sexual assaults against herself and her sisters when she was interviewed in August of 2021, and the fact that she was only eight years old when she testified at trial raises doubts as to her credibility. Butler claims the state witnesses used leading questions and relentlessly attempted to bolster her testimony at trial.
{¶73} The term "'manifest weight of the evidence'. . . relates to persuasion." Eastley v. Volkman, 2012-Ohio-2179, ¶19. It "concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387(1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 102 at n.4 (1997); State v. Martin, 2022-Ohio-4175, ¶ 26.
{¶74} Weight of the evidence addresses the evidence's effect of inducing belief. Thompkins, at 386-387; State v. Williams, 2003-Ohio-4396, ¶83. When a court of appeals reverses a judgment of a trial court on the basis that the decision is against the weight of the evidence, the appellate court sits as a "thirteenth juror" and disagrees with the fact finder's resolution of the conflicting testimony. State v. Jordan, 2023-Ohio-3800; Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42(1982) (quotation marks omitted); State v. Wilson, 2007-Ohio-2202, ¶25, citing Thompkins.
{¶75} In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact. Eastley, 2012-Ohio-2179 at ¶ 21; In re Z.C., 2023-Ohio-4703, ¶ 14. "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the [trier of fact] 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).
{¶76} When there is conflicting testimony presented at trial, a defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented. "'If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.'" Seasons Coal Co., Inc at fn. 3, quoting 5 Ohio Jur.3d, Appellate Review, §603, at 191-192 (1978); In re Z.C, 2023-Ohio-4703, ¶14. In Cross v. Ledford, 161 Ohio St. 469, 477(1954), the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or the other of the parties to an action, is not to be taken as a basis for resolving disputed facts. The degree of proof required is determined by the impression which the testimony of the witnesses makes upon the trier of facts, and the character of the testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to be informed, the disposition to tell the truth or otherwise, and the probability or improbability of the statements made, are all tests of testimonial value. Where the evidence is in conflict, the trier of facts may determine what should be accepted as the truth and what should be rejected as false. See Rice v. City of Cleveland, 114 Ohio St. 299, 58 N.E.2d 768.161 Ohio St. at 477-478. (Emphasis added).
{¶77} The interplay between the presumption of correctness and the ability of an appellate court to reverse a verdict based on the manifest weight of the evidence has been stated as follows, "'Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.'" Seasons Coal Co., 10 Ohio St.3d at 80, quoting C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280 - 281. See, also, In re: Z.C., 2023-Ohio- 4703, ¶15; Frankenmuth Mut. Ins. Co. v. Selz, 6 Ohio St.3d 169, 172 (1983); In re Sekulich, 65 Ohio St.2d 13, 16 (1981).
{¶78} If a court of appeals determines that a judgment is against the manifest weight of the evidence, the proper remedy is a remand for a new trial. 2023-Ohio-4703, ¶16, citing Eastley at ¶ 22. However, "[r]eversal on the manifest weight of the evidence and remand for a new trial are not to be taken lightly." Eastley v. Volkman, 2012-Ohio-2179, ¶ 31; In re: Z.C, 2023-Ohio- 4703, ¶16.
Issue for Appellate Review: Whether the jury clearly lost their way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered
{¶79} Because E.M. testified at trial, the jury was able to judge for themselves her appearance on the stand, manner of testifying, the reasonableness of her testimony, the accuracy of memory, frankness or lack of it, and any bias she may have.
{¶80} 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. Craig, 1999 WL 29752 (10th Dist. Mar 23, 2000) citing State v. Nivens, 1996 WL 284714 (10th Dist. May 28, 1996). Indeed, the trier of fact need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, 2003-Ohio-958, ¶ 21 (10th Dist.), citing State v. Antill, 176 Ohio St. 61, 67(1964); State v. Burke, 2003-Ohio-2889 (10th Dist.), citing State v. Caldwell, 79 Ohio App.3d 667 (4th Dist. 1992).
{¶81} This case is similar to many criminal cases. For example, in a murder case, obviously the victim cannot come to court to testify to who the perpetrator is and how the crime occurred. In such cases, the state must rely upon eyewitnesses and circumstantial evidence. The same is true in this case. B.D. is too young to be able to testify as to what happened. V.S., because of her age and speech problems, could not effectively testify in person. However, E.M. was able to testify and to be cross-examined. She told the jury what Butler did to her and what she witnessed Butler do to her sisters. Her age, intelligence, memory, her disposition to tell the truth or otherwise, and the probability or improbability of the statements made, are all tests of her testimonial value for the jury to resolve.
{¶82} Upon review of the entire record, weighing the evidence and all reasonable inferences as a thirteenth juror, including considering the credibility of witnesses, we find that the jury's verdict is supported by some competent, credible evidence going to all the essential elements of the case. Accordingly, the judgment cannot be reversed by a reviewing court as being against the manifest weight of the evidence. Seasons Coal Co., 10 Ohio St.3d at 80, quoting C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280 - 281. See, also, In re: Z.C., 2023-Ohio- 4703, ¶15; Frankenmuth Mut. Ins. Co. v. Selz, 6 Ohio St.3d 169, 172 (1983); In re Sekulich, 65 Ohio St.2d 13, 16 (1981).
{¶83} Butler's First Assignment of Error is overruled.
II.
{¶84} In his Second Assignment of Error, Butler argues that the trial judge erred in permitting a lay witness to offer an opinion on the truthfulness of the child victims.
{¶85} Specifically, Butler notes that E.M. was interviewed by Amy Logan-Amelung in June, 2022 at the Richland County Sherriffs Office concerning suspicions of sexual abuse by Butler. Near the end of Logan-Amelung's direct testimony, the following occurred:
Q. Okay. What do you think about what [EM] told you and [VS] told you?
A. Um, I think -
[Defense counsel]: Objection to her opinion.
[Prosecutor]: Approach?
THE COURT: Come on up.
[Prosecutor]: Let me rephrase. So based on your training and experience, looking at all of these little kids, what is your opinion as to what she has told you?
THE COURT: As far as whether she is truthful or not?
[Prosecutor]: Yeah.
[Defense counsel]: Objection. We don't know that she has been around these kids prior to this day.
THE COURT: It is not an expert opinion but someone trained within the field offering...
[Prosecutor]: Um-hum.
THE COURT: I think it is permissible.
[Defense counsel]: Note my objection.
THE COURT: Noted.
[Prosecutor] Based on your training and experience in Children Services, what did you believe that [E.M.] and [V.S.] were telling you?
A. I believe that they had been sexually abused by [Butler] and [his brother].4T. at 774-775.
Standard of Appellate Review
{¶86} "[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). "However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010)." State v. McKelton, 2016-Ohio-5735, ¶97.
{¶87} We note that any error will be deemed harmless if it did not affect the accused's "substantial rights." Before constitutional error can be considered harmless, we must be able to "declare a belief that it was harmless beyond a reasonable doubt." Chapman v. State of Cal., 386 U.S. 18, 24(1967).
Issue for Appellate Review: Whether the trial court violated Butler's substantial rights by allowing a lay witness to offer an opinion on the truthfulness of the child victims.
{¶88} Bolstering can be generally described as "'an implication by the government that the testimony of a witness is corroborated by evidence known to the government but not known to the jury.'" State v. Hernandez, 2018-Ohio-5031, ¶ 12 (8th Dist.), quoting United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). See also, Black's Law Dictionary 176 (6th Ed. 1990) (defining the term "bolstering" as "when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party"). State v. [J.E.], 2024-Ohio-4461, ¶32 (10th Dist.).
{¶89} Opinion testimony bearing on the credibility of a witness may constitute improper bolstering. 2024-Ohio-4461, ¶33. "Witnesses, whether experts or laymen, may not testify regarding their opinions on the credibility of other witnesses, because that infringes on the domain of the trier of fact." State v. Knuff, 2024-Ohio-902, ¶ 117. This rule still applies where the victim is a child. State v. Denson, 2023-Ohio-847, ¶ 25 (1stDist.), citing State v. Huff, 145 Ohio App.3d 555, 561 (1st Dist. 2001) and State v. Boston, 46 Ohio St.3d 108, 129 (1989) (discussing, in the context of a sexual-abuse case involving a child-victim, "it is the fact-finder who bears the burden of assessing the credibility and veracity of the witness"). In State v. [J.E.], the Court observed,
However, "this court has noted the careful distinction between direct opinion testimony about a child's veracity and indirect bolstering of a victim's credibility." State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 48, citing State v. Cashin, 10th Dist. No. 09AP-367, 2009-Ohio-6419, ¶ 20 and State v. L.E.F., 10th Dist. No. 13AP-1042, 2014-Ohio-4585, ¶ 29. "Only statements that directly support [ ] the veracity of [the] witness are [generally] prohibited" while testimony serving as "'additional support for the truth of the facts testified to by the child,'" potentially bolstering the child's credibility, is permissible. Cashin at ¶ 20; Hughes at ¶ 47, quoting State v. Stowers, 81 Ohio St.3d 260, 262-63 (1998). (Emphasis sic.)2024-Ohio-4461, ¶34.
{¶90} In the case at bar, the state contends that the witness was testifying that she believed the child witnesses were attempting to tell her that they had been sexually abused by Butler. Butler, on the other hand, argues the witness's testimony clearly states that she believed the victims had been sexually abused by Butler, i.e. direct opinion testimony about the child's veracity.
{¶91} Assuming arguendo that the trial judge incorrectly believed that the witness may testify regarding her opinions on the credibility of other witnesses, that does not end our analysis. Because Butler objected, we must review the erroneous admission of evidence pursuant to Crim.R. 52.
{¶92} Crim.R. 52 affords appellate courts limited power to correct errors that occurred during the trial court proceeding. The Rule distinguishes between errors to which a defendant objected at trial [Crim.R. 52(a)] and errors that a defendant failed to raise at trial. [Crim.R. 52(b)]. The main distinction between plain-error review, which is the standard employed when a defendant failed to object at trial, and harmless-error review, which is employed when a defendant did object, is the party that bears the burden. See State v. Jones, 2020-Ohio-3051, ¶ 17-18.
{¶93} Under plain-error review, the defendant bears the burden to demonstrate the requirements for review whereas under harmless-error review, the state bears the burden to demonstrate that the error did not affect the defendant's substantial rights. Id. at ¶ 17-18. See, State v. Bond, 2022-Ohio-4150, ¶7. While Crim.R. 52(a) precludes error correction only if the error "does not affect substantial rights," (emphasis added), Crim.R. 52(b) authorizes no remedy unless the error does "affec[t] substantial rights." (Emphasis added.). State v. Perry, 2004-Ohio-118, ¶15 (2004), quoting United States v. Olano, 507 U.S. 725, 734-735 (1993).
{¶94} In order to sustain a conviction under Crim.R. 52(a), a reviewing court must be able to declare a belief that the error is "harmless beyond a reasonable doubt, did not have an impact on the jury, or did not contribute to appellant's conviction in any meaningful degree." State v. Rahman, 23 Ohio St.3d 146,151(1986).
{¶95} Butler was not deprived of a fair trial due to the witness's testimony. The evidence against Butler was compelling, and there is little chance that, absent the improper comments, the result of his trial would have been different. Because E.D. testified, the jury was able to judge for themselves the witness's appearance on the stand, manner of testifying, the reasonableness of her testimony, the accuracy of memory, frankness or lack of it, and any bias E.D. may have. The jury could arrive at their own conclusion whether or not to believe her testimony.
{¶96} We find beyond a reasonable doubt that, even if the state elicited testimony that the witness believed the child witnesses when the children told her they had been sexually abused by Butler, the testimony did not contribute to his conviction in any meaningful degree, impact the jury's verdict, or affect the outcome of the trial. The result of the trial would have been the same had the testimony not been received.
{¶97} Butler's Second Assignment of Error is overruled.
{¶98} The judgment of the Richland County Court of Common Pleas is affirmed.
Gwin, J., Delaney, P.J., and King, J., concur