[Cite as State v. Roper,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27025

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT D. ROPER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 09 2618

DECISION AND JOURNAL ENTRY

Dated: October 29, 2014

HENSAL, Presiding Judge.

{¶1} Appellant, Robert D. Roper, appeals his conviction in the Summit County Court

of Common Pleas. For the following reasons, this Court affirms.

I.

{¶2} Mr. Roper lived with his girlfriend, Doris Smith, her six-year-old daughter, M.S.,

and her twin two-year-old sons. In September of 2011, M.S. disclosed to her mother that Mr.

Roper forced her to perform fellatio on him. M.S. was interviewed by a social worker from the

CARE (Children at Risk Evaluation) team at Akron Children’s Hospital and medically

evaluated. M.S. told the interviewer that Mr. Roper “tortur[ed]” her by making her perform

fellatio on him four times over four sequential days when she was five years old and in

kindergarten.

{¶3} On September 12, 2012, the Grand Jury indicted Mr. Roper on one count of rape

in violation of Revised Code Section 2907.02(A)(1)(b). A jury convicted him, and he was 2

sentenced to life in prison without the possibility of parole. Mr. Roper has appealed raising five

assignments of error for this Court’s review.

II.

ASSIGNMENT OF ERROR I

APPELLANT INCURRED PLAIN ERROR BY THE DENIAL OF DUE PROCESS AND THE RIGHT TO CONFRONTATION UNDER THE U.S. CONSTITUTION AND OHIO CONSTITUTION BECAUSE THE ONLY FACT WITNESS AGAINST HIM WAS INCOMPETENT TO TESTIFY ABOUT EVENTS FROM THREE YEARS OR MORE FROM THE DATE OF THE TRIAL.

{¶4} In his first assignment of error, Mr. Roper argues that this Court should “set a new

standard” for the competency determination of a child-witness by requiring the trial court to find

not only that the witness is competent to testify at the time of trial but also that the witness was

competent at the time the offense occurred. He maintains that M.S. was incompetent to testify to

the circumstances of the abuse because, while she was eight years old at the time of trial, she was

only five years old at the time of the incidents. Mr. Roper contends that his constitutional rights

of due process and confrontation of witnesses were violated because “it is virtually impossible to

cross-examine an eight year old about what may or may not have occurred when they were five

years of age.” We disagree.

{¶5} Mr. Roper concedes that the trial court appropriately determined M.S.’s

competency pursuant to Evidence Rule 601 and the standard set forth in State v. Frazier,

(1991), syllabus. Further, because he failed to object to the trial court’s determination

of M.S.’s competency, he acknowledges that this Court should review his assignment under the

plain error standard of review. See State v. Meadows, 9th Dist. Summit No. 26549, 2013-Ohio-

4271, ¶ 24. 3

{¶6} Criminal Rule 52(B) provides that “[p]lain errors or defects affecting substantial

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

plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,

(1978), paragraph three of the syllabus.

To correct a plain error, all of the following elements must apply: ‘‘First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected ‘substantial rights[ ]’ [to the extent that it] * * * affected the outcome of the trial.’’

State v. Bennett, 9th Dist. Lorain No. 12CA010286,

, quoting State v.

Hardges, 9th Dist. Summit No. 24175,

, ¶ 9.

{¶7} As Mr. Roper concedes that the trial court followed the applicable legal rules,

this Court concludes that it was not plain error for the trial court to find that M.S. was competent

to testify at trial to the incidents that occurred approximately three years earlier. Without citing

to any case law in support of his position, Mr. Roper asks this Court to rewrite Evidence Rule

601(A) and expand the test set forth in Frazier. Rule 601(A) provides that children less than ten

years old are incompetent to testify if they “appear incapable of receiving just impressions of the

facts and transactions respecting which they are examined, or of relating them truly.” In Frazier,

the Ohio Supreme Court detailed five considerations a trial court must review in order to

determine whether a child under ten is competent to testify. Frazier,

at the

syllabus.

{¶8} Further, in the case of State v. Just, 9th Dist. Wayne No. 12CA0002, 2012-Ohio-

4094, this Court determined under a similar fact pattern that the trial court did not err in finding

that the victim, who was eight years old at the time of trial, was competent to testify to incidents 4

that occurred starting when she was five years old when it considered all of the factors in

Frazier. Id. at ¶ 13. Accordingly, we overrule his first assignment of error.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY DENYING THE CRIMINAL RULE 29 MOTION FOR INSUFFICIENT EVIDENCE.

{¶9} Mr. Roper argues in his second assignment of error that the trial court erred in

overruling his motion for acquittal under Criminal Rule 29 because both M.S. and her mother,

Ms. Smith, were not credible witnesses. This Court disagrees.

{¶10} Under Criminal Rule 29(A), a defendant is entitled to a judgment of acquittal “if

the evidence is insufficient to sustain a conviction * * *.” “We review a denial of a defendant’s

Crim.R. 29 motion for acquittal by assessing the sufficiency of the State’s evidence.” State v.

Archer, 9th Dist. Summit No. 26848,

, quoting State v. Slevin, 9th Dist.

Summit No. 25956,

. Whether a conviction is supported by sufficient

evidence is a question of law that we review de novo. State v. Thompkins,

(1997). In order to determine whether there was sufficient evidence to sustain a conviction,

this Court must review the evidence in a light most favorable to the prosecution:

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks,

(1991), paragraph two of the syllabus.

{¶11} Mr. Roper was charged with rape under Revised Code Section 2907.02(A)(1)(b).

This section provides that “[n]o person shall engage in sexual conduct with another who is not

the spouse of the offender * * * when * * * [t]he other person is less than thirteen years of age, 5

whether or not the offender knows the age of the other person.” R.C. 2907.02(A)(1)(b). “Sexual

conduct” includes fellatio. R.C. 2907.01(A).

{¶12} M.S. testified that she was five years old and in kindergarten when Mr. Roper

“put his private in [her] mouth.” This happened once per day for more than one day according to

M.S. All the incidents occurred in Mr. Roper’s bedroom, with the exception of one incident that

occurred in Ms. Smith’s bedroom, while her mother was at work. M.S. reported that, during

each occurrence, he locked the bedroom door.

{¶13} Mr. Roper maintains that M.S. was not credible due to the passage of time

between her disclosure in 2011 and his trial in 2013 in addition to the influence Ms. Smith had

over her daughter. He further challenges Ms. Smith’s veracity given the parties’ tumultuous

relationship and the fact that she practiced the “black arts” as a form of prayer. Mr. Roper’s

arguments, however, question the witnesses’ credibility and the weight of the evidence rather

than its sufficiency. See Archer,

. Upon review of the record, this

Court concludes that there was sufficient evidence to support his rape conviction. Mr. Roper’s

second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF [THE] EVIDENCE BECAUSE THE DEFENDANT’S WITNESS DEMONSTRATED THAT THE ALLEGATIONS AGAINST HIM WERE NOT PROVEN BEYOND A REASONABLE DOUBT.

{¶14} In his third assignment of error, Mr. Roper argues that his conviction is against

the manifest weight of the evidence. This Court does not agree.

{¶15} To determine whether Mr. Roper’s conviction is against the manifest weight of

the evidence, this Court 6

must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

State v. Thompkins,

(1997). The appellate court should only exercise its

power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.

State v. Carson, 9th Dist. Summit No. 26900,

, citing

.

{¶16} Mr. Roper argues that the jury lost its way in convicting him of rape as: (1) Ms.

Smith exhibited erratic behavior and a hatred of Mr. Roper that led her to influence M.S. to

falsely accuse him of rape; (2) M.S. disclosed previous physical abuse allegedly committed by

Mr. Roper that was unsupported by any visible marks; and (3) the children’s services social

worker, who interviewed M.S. in regard to the physical abuse allegation, testified that M.S.

denied that anyone had touched her inappropriately.

{¶17} Ms. Smith admitted that, in 1998, she was charged with embezzlement which was

later amended to 16 counts of forgery. She testified that she met Mr. Roper in 2007 and that they

began a romantic relationship one year later. He moved into the home she shared with her three

children when M.S. was five years old. While Ms. Smith and Mr. Roper initially shared a

bedroom, he moved into a separate downstairs bedroom after he began relationships with other

women. According to Ms. Smith, Mr. Roper babysat the children while she attended school and

worked. Ms. Smith testified that she and Roper “fussed all the time.” M.S. also testified that her

mother did not like Mr. Roper. She stated that her mother and Mr. Roper frequently argued and

fought when he lived with them. 7

{¶18} A children’s services social worker, Annette Luccarelli, testified that, during her

interview with Ms. Smith on the day that M.S. disclosed the abuse, Ms. Smith was “very, very

upset,” “emotional,” and made threats that she would kill Mr. Roper. Ms. Smith went to the

Portage Path Emergency Evaluation Center because, according to her, she was “pretty upset” and

in a “homicidal state.” She reported that, while she was there, she was hooked up to a machine

that “looked at the cortex of her head and said it was bright orange, which said [she] had

homicidal tendencies.” Ms. Smith testified that she was discharged the same day with the

medication Haldol. At the time of trial, she was still taking Haldol and receiving medical

treatment for “[m]anic [d]epress[ion], homicidal [and] suicidal.” Ms. Smith admitted that she

“[s]ometimes” has problems with her memory where she may remember incidents but not

specific dates. She described practicing the “black arts” by erecting an altar in her home, using

“protection oil” and chanting “spells” to obtain favors and guard against harm.

{¶19} The substance of Mr. Roper’s argument is that Ms. Smith’s mental condition and

behavior indicates that she is unreliable and had a vendetta against him for terminating the

relationship. As a result, Mr. Roper maintains, she influenced her daughter to falsely accuse him

of rape. Ms. Smith denied “taint[ing] or counsel[ing]” M.S. to make the accusations against Mr.

Roper as retribution for the termination of the relationship. M.S. testified that she talks to her

mother about what happened. While she spoke with her mother about testifying at trial, they did

not talk about it “a lot.”

{¶20} Cathy Laube, the social worker who interviewed M.S. at Akron Children’s

Hospital, testified that M.S. reported details of the abuse that a typical child of that age would not

know. One of M.S.’s counselors, Dr. Cynthia Keck-McNulty, testified that a child who is

coached on what to disclose lacks the ability to provide minute details about the abuse. Dr. 8

Keck-McNulty testified that, in her opinion, M.S. did not appear to be coached on what to say

because she relayed such smaller details about the abuse.

{¶21} Donna Abbott, an Akron Children’s Hospital nurse practitioner who the trial court

declared an expert in the evaluation and treatment of child abuse, testified that she diagnosed

M.S. as sexually abused. She formed her diagnosis after medically examining M.S. and

reviewing the results of Ms. Laube’s evaluation. While she did not observe any physical

indications of abuse during the examination, Ms. Abbott testified that she based her diagnosis on

statements M.S. made to Ms. Laube that she vomited because Mr. Roper’s penis was too far

down her throat and that he told her to take her teeth off his penis. According to Ms. Abbott,

despite the fact that the medical exam failed to reveal any physical indications, she is able to

make the diagnosis of sexual abuse based on the specific history of the child. Ms. Abbott opined

that, in M.S.’s case, her history included reported details that would only be known to her if she

actually experienced such abuse. We note that, on appeal, Mr. Roper does not challenge M.S.’s

diagnosis or the admission of the testimony of Ms. Laube, Dr. Keck-McNulty, or Ms. Abbott.

{¶22} Regarding Mr. Roper’s argument that M.S. and Ms. Smith made prior

unsubstantiated allegations of physical abuse against him, Ms. Smith testified that she contacted

children’s services in May of 2011 when she observed bruising on M.S.’s forehead. When she

confronted Mr. Roper about the bruises, according to Ms. Smith, he stated that M.S. ran into a

door.

{¶23} M.S. also testified about this incident. According to M.S., Mr. Roper asked her

multiplication questions that she could not answer. Every time she answered incorrectly, he hit

her in the head with a Tonka truck. M.S. testified that Mr. Roper told her to tell her mother that 9

she received the marks when she ran into the walls. She reported that, the next day, he “popped”

her in the back of the head and asked her why she told her mother the truth about the marks.

{¶24} Sarah Riffle, who was an intake social worker for children’s services and who

testified on behalf of the defense, stated that she interviewed M.S. about the physical abuse

allegations on May 2, 2011. According to Ms. Riffle, M.S. reported that Mr. Roper hit her on

her buttocks and legs with his hands and a belt in addition to leaving bumps on her head after

hitting her with a truck. Ms. Riffle, however, did not see any marks on M.S. After the

investigation, children’s services determined that physical abuse was “indicated” rather than

“substantiated” or “unsubstantiated” because Mr. Roper’s methods of discipline were designed to

“instill fear” rather than to serve as an appropriate punishment. Ms. Riffle’s report also

indicated, however, that M.S. had a “noticeable shift in her demeanor” when she talked about

Mr. Roper. Specifically, Ms. Riffle noticed that M.S.’s “head went down, she became quiet, and

she stopped smiling.” M.S. told Ms. Riffle that he told her to lie and that he would beat her if

she told the truth.

{¶25} Ms. Smith testified that children’s services told her Mr. Roper could not live at

the home any longer as a result of this allegation. She acknowledged that, because she did not

have a babysitter, she let him move back in two weeks after the investigation concluded.

{¶26} Finally, Mr. Roper notes that, when asked by Ms. Riffle at the May 2, 2011,

interview whether anyone touched in her in a sexual manner, she replied in the negative. When

M.S. did disclose the abuse, she reported that it occurred when she was five years old and in

kindergarten. M.S. turned six years old 12 days after the interview. If M.S. is accurate about the

timing of the abuse, it very likely had already occurred before the interview with Ms. Riffle. Mr. 10

Roper questions why M.S. would fail to disclose the sexual abuse to Ms. Riffle when directly

asked when she so freely disclosed the alleged physical abuse.

{¶27} Ms. Laube, however, testified that a child-victim may delay disclosure of abuse,

especially if she was threatened. M.S. initially indicated to Ms. Laube that Mr. Roper threatened

to “whoop [her] butt” if she told anyone about the abuse. At trial, however, M.S. denied that he

told her not to tell her mother about the abuse although she testified that she believed he would

beat her if she did tell. Both Ms. Laube and Dr. Keck-McNulty also testified that child-victims

tend to disclose additional details over time rather than all at once. Accordingly, both Ms.

Laube’s and Dr. Keck-McNulty’s testimony reveals that M.S.’s failure to disclose the abuse to

Ms. Riffle is consistent with the typical behavior of young victims.

{¶28} The crux of Mr. Roper’s arguments challenges the believability of both Ms.

Smith’s and M.S.’s testimony. We note that whether the jury believed Ms. Smith and M.S. is an

issue of their credibility. The jury was in the best position to observe their demeanor and

ascertain their credibility. State v. Thomas, 9th Dist. Summit No. 27090,

,

quoting State v. Hunter, 9th Dist. Summit No. 26610,

. The weight to be

given their testimony and their credibility is primarily an issue for the jury. State v. DeHass,

(1967), paragraph one of the syllabus. “This Court will not overturn the [jury]’s

verdict on a manifest weight of the evidence challenge only because [it] chose to believe certain

witnesses’ testimony over the testimony of others.” State v. Shank, 9th Dist. Medina No.

12CA0104-M,

. After a careful review of the record, this Court does not

find that this is the “exceptional case” wherein the jury lost its way resulting in a conviction that

was against the manifest weight of the evidence. Otten,

. Mr. Roper’s

third assignment of error is overruled. 11

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE.

{¶29} Mr. Roper argues in his fourth assignment of error that the trial court abused its

discretion in sentencing him to life in prison without the possibility of parole. He maintains that

the court’s reason for imposing the maximum sentence is “tautological” because all rape victims

will have to live with the abuse for the remainder of their lives. Mr. Roper further argues that the

sentence was unwarranted because he had no prior sexual offenses and was a “relatively young

man.” We disagree.

{¶30} This Court utilizes the test set forth in State v. Kalish,

, 2008-

Ohio-4912 when reviewing criminal sentences:

First, [we] must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.

Id. at ¶ 26. An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore,

(1983).

{¶31} Mr. Roper does not argue that his sentence was contrary to law. Instead, he

confines his argument to the second prong of the Kalish test concerning whether the court abused

its discretion. We, therefore, limit our review accordingly.

{¶32} According to the testimony at trial, M.S. was five years old and in kindergarten at

the time of the abuse. She stated that she had “bad dreams” about Mr. Roper and described one

occasion where she dreamt he was a “predator[ ]” from a video game who came to her daycare

center. Ms. Smith testified that M.S. discontinued counseling after three months because talking 12

about the abuse triggered an inability to sleep and to have nightmares when she did fall asleep.

Ms. Smith reported that M.S. would not go downstairs where Mr. Roper’s former bedroom was

until she repainted the room. Even after redecorating, M.S. refused to be alone downstairs unless

her mother was present. According to Ms. Smith, she stopped working for a while to spend time

with M.S. Her grades dropped from A’s and B’s to D’s and F’s because she could not

concentrate. Ms. Smith further testified that M.S. switched schools because she used to have to

walk in an area of the neighborhood where Mr. Roper’s family lived. Dr. Keck-McNulty

diagnosed M.S. with adjustment disorder with anxiety.

{¶33} At sentencing, the court stated that, “[a]s I look over the facts and circumstances

in this case, in this Court’s opinion, this five year old will have to live with what you did to her

for the rest of her life * * *.” The court further stated that it sentenced Mr. Roper to life in prison

without the possibility of parole “based upon the facts and circumstances here, consideration of

the relevant sentencing factors, applying the minimum sanction that the Court has determined

will protect the public and punish you without imposing an unnecessary burden on state or local

resources, [and] considering the seriousness and the recidivism factors * * *.” The sentencing

entry indicates that the trial court considered the principles and purposes of sentencing under

Revised Code Section 2929.11 and the felony sentencing factors under Section 2929.12. This

Court cannot say that, under these circumstances, the trial court abused its discretion when it

imposed Mr. Roper’s sentence. Kalish,

, at ¶ 26. His fourth assignment of error

is overruled.

ASSIGNMENT OF ERROR V

IT WAS PLAIN ERROR FOR THE TRIAL COURT TO IMPOSE A NO CONTACT ORDER DUE TO THE DEFENDANT ALREADY INCURRING A PRISON SENTENCE ON THE CASE. 13

{¶34} In his fifth assignment of error, Mr. Roper argues that the trial court erred by

ordering him to have no contact with the victim and her family as part of his sentence. We

disagree.

{¶35} Mr. Roper argues that, based on the holdings of other appellate districts, the court

erred in imposing a no contact order. This Court, however, recently concluded that a trial court

may impose a no contact order as part of its sentence. State v. Anderson, 9th Dist. Summit No.

26640,

.

{¶36} Based on his narrow argument and the precedent in this district set forth in

Anderson, this Court concludes that the trial court did not commit plain error in ordering that Mr.

Roper have no contact with the victim and her family. His fifth assignment of error is overruled.

III.

{¶37} Mr. Roper’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 14

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

CARR, J. CONCURS.

MOORE, J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶38} As to the first four assignments of error, I concur in the majority’s opinion. As to

the fifth assignment of error, I respectfully dissent for the reasons articulated by J. Belfance in

her dissent in State v. Anderson, as referenced above.

APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.