[Cite as State v. Lawson,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DICTRICT HIGHLAND COUNTY

STATE OF OHIO, : Case No. 14CA5

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY CASPER LAWSON, :

Defendant-Appellant. : RELEASED: 1/16/2015

APPEARANCES:

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Ohio Assistant Public Defender, Columbus, Ohio, for appellant.

Anneka P. Collins, Highland County Prosecuting Attorney, and Ross Greer, Highland County Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee. Harsha, J. {¶1} After a jury convicted Casper Lawson of two counts of rape of a child

under thirteen years old and multiple other sexually oriented offenses, the court

sentenced him to life in prison. On appeal Lawson claims that the trial court erred by

permitting a forensic interviewer to vouch for two of the state’s witnesses. We reject

Lawson’s contention because the trial court did not commit error, much less plain error,

in allowing the forensic interviewer to testify that based on her interviews with two of the

child victims, she concluded that medical examinations were necessary. The forensic

interviewer did not give her opinion of the children’s veracity. Her testimony simply

provided information that helped the jury to determine whether sexual abuse had

occurred. And because the children testified and were subjected to cross-examination

by Lawson’s counsel at trial, the jury was able to independently assess their credibility.

Thus, even if admission of the interviewer’s testimony was improper, Lawson cannot Highland App. No. 14CA5 2

establish that without the interviewer’s testimony, the outcome of the trial clearly would

have been otherwise.

{¶2} In his second assignment of error Lawson asserts that his trial counsel

was ineffective because he failed to specifically object based on improper vouching to

the forensic interviewer’s testimony. Because the challenged testimony did not

constitute improper vouching, we reject Lawson’s contention, i.e. Lawson cannot

establish either deficient performance by counsel or prejudice.

{¶3} Therefore, we overrule Lawson’s assignments of error and affirm the

judgment of the trial court.

I. FACTS

{¶4} F.K., a minor child, and her parents reported to the Highland County

Sheriff’s Department that she had been sexually abused by Lawson. They produced

Lawson’s cellphone, which contained several photographs of naked children and

children engaging in sexual conduct with adults. After the police interviewed Lawson,

they obtained and executed a search warrant of his camper and found a metal box with

a VHS tape containing sexually graphic images of Lawson’s daughter S.C., who had

stayed at Lawson’s home on several occasions.

{¶5} Shortly thereafter, a Highland County grand jury indicted Lawson on two

counts of rape, one count of gross sexual imposition, and twenty-four counts of illegal

use of a minor in nudity-oriented material. The two counts of rape related to his sexual

conduct with F.K., who was approximately nine years old at the time of the offenses.

The count of gross sexual imposition related to his sexual conduct with his daughter

Z.C., who was approximately ten years old at the time of the offense. One of the counts Highland App. No. 14CA5 3

of illegal use of a minor in nudity-oriented material related to his possession of the VHS

tape showing S.C., who is Z.C.’s “half-sister” and was thirteen years old at the time,

asleep with her shorts being pulled away to expose her vagina. The remaining counts

related to images of child pornography on Lawson’s cellphone.

{¶6} After Lawson pleaded not guilty and received appointed counsel, the

matter proceeded to a jury trial. There the three minor children, F.K., Z.C., and S.C.,

testified in detail about Lawson’s sexual misconduct and were subject to cross-

examination by his trial counsel. F.K. testified that Lawson stuck his fingers inside her

vagina about three times and that he put his penis into her vagina about five times.

Lawson threatened he would kill and hurt her, her family, and her puppy if she told

anybody. Lawson’s minor daughter, Z.C., testified that Lawson had touched her private

parts through her clothing and he had threatened to hurt her and her family if she told

anyone. S.C. testified that she and Z.C. were sleeping over at Lawson’s apartment

when they were videotaped and that she did not give anyone permission to videotape

her.

{¶7} During the trial Lawson’s trial counsel objected to the testimony of Cecilia

Freihofer, who is a licensed social worker employed as a forensic interviewer at the

Mayerson Center for Safe and Healthy Children in Cincinnati Children’s Hospital.

Lawson’s trial attorney claimed that any testimony by Freihofer about what the children

told her during their interviews was inadmissible hearsay. The trial court determined

that this testimony was admissible under the Evid.R. 803(4) exception for statements

made for purposes of medical diagnosis or treatment. See State v. Arnold,

,

,

, paragraph two of the syllabus Highland App. No. 14CA5 4

(“Statements made to interviewers at child-advocacy centers that are made for medical

diagnosis and treatment are nontestimonial and are admissible without offending the

Confrontation Clause”); State v. Pence, 12th Dist. Warren No. CA2012-05-045, ¶ 32

(“Hearsay statements made to a social worker may be admissible if they are made for

purposes of medical diagnosis or treatment”).

{¶8} Freihofer testified that when a child alleges abuse, the protocol is for her

to interview the child to assess the need for medical care, e.g. a physical and mental-

health examination. According to Freihofer, Z.C. reported to her that Lawson had

touched and grabbed her vaginal area and had punched her in the arm when she tried

to get him to stop. Z.C. complained about physical pain and stated that she often

thought about killing herself. Based on the interview Freihofer “assessed that a medical

exam was indicated because of her complaints of pain and being worried about her

body, as well as further psychiatric assessment through [the] emergency department

there at the hospital.”

{¶9} Freihofer also testified that she interviewed F.K., who reported multiple

incidents of sexual abuse by Lawson and indicated that she was worried about her

physical condition and had daily thoughts about killing herself. Based on the interview

Freihofer concluded that F.K. “was indicated for a medical exam, she was also worried

about her body and then also after the medical exam [Freihofer] escorted her down to

the emergency room also for further psychiatric evaluation.”

{¶10} Lawson, the sole defense witness, denied that he had sexually abused

any of the children. He said that F.K., Z.C., and S.C. were liars. He claimed that he

had purchased the cellphone for S.C., but after he saw what he considered to be Highland App. No. 14CA5 5

inappropriate pictures on it, he put it in a plastic bag out of reach of the children. He

further claimed that he thought the VHS tape was something that had been recorded by

Z.C. and he put it away without looking at what was on it.

{¶11} The jury returned verdicts finding Lawson guilty of two counts of rape, one

count of gross sexual imposition, and fifteen counts of illegal use of a minor in nudity-

oriented material. The trial court convicted Lawson of these offenses and sentenced

him to two life terms of imprisonment for his rape convictions, to be served consecutive

to each other and to the 225 months imposed for his remaining convictions.

{¶12} This appeal followed some procedural steps that are not relevant to the

merits of our decision.

II. ASSIGNMENTS OF ERROR

{¶13} Lawson assigns the following errors for our review:

1. The trial court erred by permitting a “forensic interviewer” to vouch for two of the State’s witnesses. Evid.R. 702 and 704; T.p. 156-7, 161-5.

2. Trial counsel was ineffective if his objection to the testimony of the forensic social worker was inadequate. Evid.R. 702 and 704; Sixth and Fourteenth Amendments to the Constitution of the United States; T.p. 156-7, 161-5.

III. LAW AND ANALYSIS

Improper Vouching

{¶14} In his first assignment of error Lawson asserts that the trial court erred by

permitting a forensic interviewer to vouch for two of the state’s witnesses—F.K. and

Z.C. Because Lawson did not raise this specific objection during the trial court

proceedings, he forfeited all but plain error. State v. Knott, 4th Dist. Athens No.

03CA30,

, citing Evid.R. 103(A)(1) (“Because counsel’s objection Highland App. No. 14CA5 6

did not apprise the court of this specific argument, we believe a plain error analysis of

the issue is appropriate”), see also Painter and Pollis, Ohio Appellate Practice, § 1:34

(2014).

{¶15} Appellate courts take notice of plain error “ ‘with the utmost caution, under

exceptional circumstances and only to prevent a miscarriage of justice.’ ” State v.

Mammone,

,

,

, quoting State

v. Long,

,

(1978), paragraph three of the syllabus. To

prevail, Lawson must show that an error occurred, that the error was plain, and that but

for the error, the outcome of the trial clearly would have been otherwise.

, citing State v. Barnes,

,

(2002); see also

State v. Bethel, 4th Dist. Jackson No. 13CA11,

, ¶ 11.

{¶16} Lawson complains Freihofer, the forensic interviewer, testified that “both

required additional medical services to treat them for sexual abuse.” And he contends

this constituted impermissible vouching for the minor children’s truthfulness because

Freihofer’s testimony was based solely on what F.K. and R.C. told her during the

interviews. In his brief Lawson asserts that as an expert witness, Freihofer could not

vouch for the credibility of the F.K. and Z.C. It has long been held that “[a]n expert may

not testify as to the expert’s opinion of the veracity of the statements of a child witness.”

State v. Boston,

,

(1989), syllabus.

{¶17} Although Lawson contended at oral argument that Freihofer testified as a

lay witness rather than as an expert witness, it is well-settled that neither lay nor expert

witnesses are permitted to testify about the veracity of another witness. State v.

Pawlak, 8th Dist. Cuyahoga No. 99555,

(“lay witnesses are Highland App. No. 14CA5 7

prohibited from testifying as to another witness’s veracity”); see State v. Bowden, 11th

Dist. Ashtabula No. 2013-A-0040,

, and cases cited therein (“Ohio

appellate courts have held that it is reversible error to allow a witness to testify or

comment on the credibility of another witness”);

, quoting State v.

Eastham,

,

(H. Brown, J., concurring) (“ ‘In our

system of justice it is the fact finder, not the so-called expert or lay witnesses, who

bears the burden of assessing the credibility and veracity of witnesses’ ”). Moreover, it

appears that even in the absence of the state qualifying Freihofer as an expert, in the

absence of an objection she testified as one de facto. Based on the appellant’s brief and

the content of Freihofer’s testimony, we conduct our review in the context of expert

testimony.

{¶18} In State v.

a defendant was convicted of gross sexual

imposition for sexual contact with his two-year-old daughter. The Supreme Court

reversed the judgment affirming the conviction because the testimony of the two expert

witnesses was improperly admitted over the defendant’s objections. The trial court had

allowed a pediatrician who had examined the child to testify that the child had neither

fantasized her abuse nor been programmed to make the accusations of abuse. The

trial court had also allowed a counselor who had examined the child to testify that the

child had been telling the truth. The Supreme Court reversed the conviction by holding

that an expert may not provide an opinion of the veracity of the child victim’s statements

because it infringed upon the role of the jury to assess the credibility of the child’s out-

of-court statements when the child was unavailable to testify at trial. Highland App. No. 14CA5 8

{¶19} Lawson claims that the trial court thus erred in permitting Freihofer’s

testimony because “expert witnesses may not vouch for the credibility of alleged victims

of sexual abuse,” citing State v. Schewirey, 7th Dist. Mahoning No. 05 MA 155, 2006-

Ohio-7054, and State v. Knight, 8th Dist. Cuyahoga No. 87737,

, which

applied the Supreme Court’s holding in Boston. However, Lawson’s claims lack merit.

{¶20} First, “ ‘[o]nly statements directly supporting the veracity of a child witness

are prohibited under Boston[,

,

].’ ” State v.

Cappadonia, 12th Dist. Warren No. CA2008-11-138,

, ¶ 18, quoting

State v. Cashin, 10th Dist. Franklin No. 09AP-367,

, ¶ 20. Here, as in

Cappadonia and Cashin, Freihofer did not testify about the truth of F.K.’s and Z.C.’s

statements to her or vouch for their credibility.

{¶21} Instead, based on her forensic interviews of the minor children, Freihofer

concluded that medical examinations and psychiatric evaluations were “indicated”

because of the children’s complaints concerning their physical condition and their

thoughts of suicide. See State v. Sopko, 8th Dist. Cuyahoga No. 90743, 2009-Ohio-

140, ¶ 35, citing State v. Smelcer,

,

(8th

Dist. 1993) (“a social worker’s determination that [child sexual abuse] allegations are

‘indicated’ is not considered testimony regarding veracity”). And in fact, Boston does

not prohibit an expert from opining that abuse occurred. It simply precludes the expert

from giving an opinion on the veracity of the child’s statements. See

. The

fact that Freihofer based the need for further evaluation solely upon her interviews with

the children does not, ipso facto, amount to vouching for the veracity of the children’s

statements. During the interview Freihofer had the opportunity to observe the children’s Highland App. No. 14CA5 9

behavior and speech patterns. Often the physical reactions to questioning provide

important clues to determining whether the conduct alluded to in statements have a

basis in fact. Because Freihofer did not express an opinion about the children’s

credibility, no improper vouching occurred. State v. Davis, 116 Ohio st.3d 404, 2008-

Ohio-2,

, ¶ 241 (“No improper vouching occurred because the prosecutor

did not express any personal belief about the experts’ credibility”); In the Matter of J.M.,

4th Dist. Pike No. 08CA782,

, ¶ 29-30, overruled in part on other

grounds, In re J.M.,

,

,

.

{¶22} Moreover, Boston does not prohibit testimony that assists the fact finder in

assessing the child’s veracity. See State v. Barnes, 12th Dist. Brown No. CA2010-06-

009,

, at ¶ 57 (expert testimony that victim’s statements were

“consistent with inappropriate sexual contact” was admissible and did not constitute

improper vouching). Freihofer’s testimony that she felt medical and psychiatric

evaluations were “indicated” did not usurp the role of the jury. Rather it gave the jury

information that helped it make an educated determination about whether sexual abuse

had occurred. See State v. Stowers, 81 Ohio st.3d 260, 262-263,

(1998)

{¶23} Third, even if we assume that Freihofer’s testimony was improper, both

F.K. and Z.C. testified at trial and were subjected to cross-examination by Lawson.

Because of the children’s detailed testimony, Lawson cannot establish that the outcome

would have clearly been different had Freihofer’s testimony been excluded. See Pence,

12th Dist. No. CA2012-05-045,

. The jury could have Highland App. No. 14CA5 10

independently assessed the credibility of these witnesses and had little difficulty in

finding Lawson guilty based upon their testimony alone.

{¶24} Therefore, the trial court did not commit error, much less plain error, by

permitting Freihofer to testify that her forensic interviews of F.K. and Z.C. indicated the

appropriateness of physical and psychiatric evaluations. We overrule Lawson’s first

assignment of error.

Ineffective Assistance of Counsel

{¶25} In his second assignment of error Lawson claims that if his trial counsel’s

objection to Freihofer’s testimony was inadequate to preserve the issue for appeal, his

counsel was ineffective. Criminal defendants have the constitutional right to counsel,

which includes the right to the effective assistance of counsel. Evitts v. Lucey,

,

,

; Article I, Section 10, Ohio Constitution.

{¶26} To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must establish (1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel's errors, the result of the proceeding would

have been different. State v. Short,

,

,

; Strickland v. Washington,

,

,

(1984); State v. Knauff, 4th Dist. Adams No. 13CA976,

,

, ¶ 23. The defendant bears the burden of proof because in Ohio, a properly

licensed attorney is presumed competent. State v. Gondor,

, 2006-

Ohio-6679,

. Failure to establish either part of the test is fatal to an Highland App. No. 14CA5 11

ineffective-assistance claim.

; State v. Bradley,

,

(1989).

{¶27} Based on our disposition of his first assignment of error, Lawson cannot

establish that his trial counsel was ineffective for failing to raise a specific objection that

lacked merit. He has not rebutted the presumed competence of his trial attorney.

Moreover, he has not established a reasonable probability that the outcome of the trial

would have been different because of the detailed testimonial evidence submitted by

the child victims in the case. We overrule Lawson’s second assignment of error.

IV. CONCLUSION

{¶28} Having overruled his assignments of error, we affirm the judgment of

conviction and sentence.

JUDGMENT AFFIRMED. Highland App. No. 14CA5 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.