[Cite as State v. Daniel,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103258

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JAMES W. DANIEL

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-589487-A

BEFORE: Celebrezze, J., Jones, A.J., and Boyle, J.

RELEASED AND JOURNALIZED: August 4, 2016 ATTORNEY FOR APPELLANT

Steve W. Canfil 55 Public Square, Suite 2100 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Brett Hammond Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, James Daniel (“appellant”), brings this appeal

challenging his convictions for rape, aggravated robbery, and kidnapping. Specifically,

appellant argues that (1) the trial court erred by determining that he was competent to

stand trial, (2) the trial court erred by failing to provide the jury with an attempted rape

instruction, (3) the trial court erred by permitting Officer John Kazimer to testify about

the credibility of one of the victims, and (4) the trial court erred by failing to hold a

Daubert hearing on the issue of historical cell phone records. After a thorough review of

the record and law, this court affirms.

I. Factual and Procedural History

{¶2} The instant criminal proceedings arose from three separate rape and

kidnapping incidents. The incidents occurred in Lakewood, Ohio and Cleveland, Ohio in

August and September 2014. S.N. was the victim of the first incident. J.S. was the

victim of the second incident. K.K. and J.B. were the victims of the third incident.

{¶3} The Cuyahoga County Grand Jury returned a 23-count indictment charging

appellant with: (1) aggravated burglary, in violation of R.C. 2911.11(A)(1); (2)

aggravated burglary, in violation of R.C. 2911.11(A)(2); (3) rape, in violation of R.C.

2907.02(A)(2); (4) kidnapping, in violation of R.C. 2905.01(A)(4); (5)-(7) rape, in

violation of R.C. 2907.02(A)(2); (8) kidnapping, in violation of R.C. 2905.01(A)(4); (9)

aggravated robbery, in violation of R.C. 2911.01(A)(1); (10) kidnapping, in violation of R.C. 2905.01(A)(2); (11) having weapons while under disability, in violation of R.C.

2923.13(A)(2); (12) aggravated robbery, in violation of R.C. 2911.01(A)(1); (13)

kidnapping, in violation of R.C. 2905.01(A)(2); (14) aggravated robbery, in violation of

R.C. 2911.01(A)(1); (15) kidnapping, in violation of R.C. 2905.01(A)(2); (16) having

weapons while under disability, in violation of R.C. 2923.13(A)(2); (17)-(18) rape, in

violation of R.C. 2907.02(A)(2); (19) kidnapping, in violation of R.C. 2905.01(A)(4);

(20) aggravated robbery, in violation of R.C. 2911.01(A)(1); (21) felonious assault, in

violation of R.C. 2903.01(A)(2); (22) kidnapping, in violation of R.C. 2905.01(A)(2); and

(23) having weapons while under disability, in violation of R.C. 2923.13(A)(2). Many

of the counts carried sexually violent predator specifications, sexual motivation

specifications, repeat violent offender specifications, and notice of prior conviction

specifications. Counts 5 through 23 contained one- and three-year firearm

specifications. At his arraignment, appellant pled not guilty to the charges in the

indictment and the matter proceeded to trial on February 2, 2015.

{¶4} The trial court severed Counts 1 through 5 for separate disposition. The trial

court subsequently ordered bifurcation of the notice of prior conviction, repeat violent

offender, sexual motivation, and sexually violent predator specifications on Counts 5

through 8. The specifications would be tried to the trial court. Furthermore, the trial

court bifurcated the following specifications: the repeat violent offender and notice of

prior conviction specifications on Counts 9 and 10; the notice of prior conviction and

repeat violent offender specifications on Counts 12, 13, 14, and 15; the sexual motivation, sexually violent predator, repeat violent offender, and notice of prior conviction

specifications on Counts 17, 18, and 19; and the notice of prior conviction and repeat

violent offender specifications on Counts 20, 21, and 22.

{¶5} Counts 1 through 4 in the original indictment were amended and renumbered

as Counts 20 through 23. Counts 5, 6, 7, 17, and 18 in the original indictment were

renumbered as Counts 1, 2, 3, 11, and 12. Counts 8 and 19 in the original indictment

were renumbered as Counts 4 and 13. Counts 9, 12, 14, and 20 in the original

indictment were renumbered as Counts 5, 7, 9, and 14. Counts 10, 13, 15, and 22 in the

original indictment were renumbered as Counts 6, 8, 10, and 16. Count 21 in the

original indictment was renumbered as Count 15. Counts 11, 16, and 23 of the original

indictment were not renumbered.

{¶6} On the first night of trial, appellant feigned a suicide attempt. He was found

on the floor of his holding cell, in the fetal position, with a sheet wrapped around his

neck. On the second day of trial, appellant spread feces on himself and his holding cell.

Appellant had been diagnosed with antisocial personality disorder and bipolar disorder.

After one of appellant’s medications was discontinued on January 27, 2015, appellant

began complaining of auditory hallucinations. For all of these reasons, the trial court

discharged the jurors — who had not yet been sworn in — continued appellant’s trial, and

referred appellant to the court psychiatric clinic for a competency evaluation.

{¶7} On February 7, 2015, appellant filed a pro se motion to disqualify counsel. {¶8} Dr. Stephen Noffsinger evaluated appellant and diagnosed him with cannabis

use disorder and malingering. Dr. Noffsinger determined that appellant suffers from

antisocial personality disorder. Dr. Noffsinger indicated in his report that he was unable

to form an opinion within a reasonable medical certainty whether appellant has the ability

to understand the nature and objectives of the proceedings and is able to assist in his

defense. Dr. Noffsinger explained, “while it is clear that [appellant] is malingering the

symptoms of a mental disorder, it is unclear whether he is wholesale faking the mental

disorder or exaggerating the extent of a true mental disorder.” He recommended that

the trial court order appellant to a 20-day inpatient competency to stand trial evaluation at

Twin Valley Behavioral Healthcare (“Twin Valley”) — a maximum security facility

where appellant’s behavior could be observed “round the clock.”

{¶9} On March 9, 2015, the trial court held a hearing to review Dr. Noffsinger’s

report. The trial court noted that in appellant’s pro se motion to disqualify counsel, he

demonstrated intelligence and clarity of thought. The trial court attempted to discuss Dr.

Noffsinger’s report and recommendation with appellant, but was unable to do so. The

trial court noted on the record that appellant “had his head down the whole time and

refused to make any eye contact. And his responses have been inaudible and not

understandable to the court. They are barely audible.” The trial court remanded

appellant and ordered him to be transferred to Twin Valley for a 20-day observation

period. Despite the trial court’s order, appellant was not transferred to Twin Valley. {¶10} On April 8, 2015, the trial court held another hearing to determine whether

appellant was competent to proceed to trial. The trial court noted that appellant had at

least two prior felonies, and thus, is not a stranger to the criminal justice system. The

trial court acknowledged that in a prior presentence investigation report, appellant

indicated that he did not suffer from any mental illness. The trial court further noted that

because appellant neither cooperated with his counsel nor with the medical professionals

who attempted to examine him, it is unclear whether any of the information that he is

reporting is credible.

{¶11} The state argued that appellant was competent to stand trial. In support of

its position, the state presented the following information obtained from appellant’s jail

phone calls: (1) appellant was using another inmate’s corrections office number; (2)

appellant was discussing information about his trial, including jury selection, the facts

against him, his attorney, witnesses, an alibi, and circumstantial evidence; (3) he asked his

girlfriend to look up symptoms of schizophrenia; (4) he called his brother so that he

would not testify against him at trial; and (5) he reached out to Channel 5 and did an

interview with a reporter.

{¶12} After hearing appellant’s jail phone calls and reviewing Dr. Noffsinger’s

report, the trial court determined that appellant was competent to stand trial.

Furthermore, the trial court stated that it was clear that appellant “is using the due process

protections of the legal system to delay his inevitable trial.” The matter proceeded to

trial. {¶13} At the close of trial, the jury found appellant guilty of rape with one- and

three-year firearm specifications and sexual motivation specifications, as charged in the

renumbered Counts 1, 2, 3, 11, and 12; kidnapping with one- and three-year firearm

specifications and sexual motivation specifications, as charged in the renumbered Counts

4 and 13; aggravated robbery with one- and three-year firearm specifications, as charged

in the renumbered Counts 5, 7, 9, and 14; kidnapping with one- and three-year firearm

specifications, as charged in the renumbered Counts 6, 8, 10, and 16; and felonious

assault with one- and three-year firearm specifications, as charged in the renumbered

Count 15. Furthermore, the trial court found appellant guilty of the notice of prior

conviction, repeat violent offender, and sexual violent predator specifications as charged

in the renumbered Counts 1, 2, 3, 11, and 12; the notice of prior conviction, repeat violent

offender, and sexual violent predator specifications as charged in the renumbered Counts

4 and 13; the repeat violent offender and notice of prior conviction specifications as

charged in the renumbered Counts 5, 7, 9, and 14; the notice of prior conviction and

repeat violent offender specifications as charged in the renumbered Counts 6, 8, 10, and

16; the notice of prior conviction and repeat violent offender specifications as charged in

the renumbered Count 15; and having weapons while under disability with the one- and

three-year firearm specifications as charged in the original indictment as Counts 11, 16,

and 23. The trial court ordered appellant to be tried on the renumbered Counts 20

through 23, originally charged in the indictment as Counts 1 through 4, at a later date. {¶14} Appellant changed his not guilty plea and entered a plea of guilty to the

renumbered Counts 20 through 23. The trial court accepted appellant’s guilty plea.

{¶15} The trial court sentenced appellant to a prison term of 144 years to life.

{¶16} Appellant filed the instant appeal assigning four errors for review:

I. The trial court erred and denied appellant his constitutional right to due process when it declared that he was competent to stand trial in the absence of any medical opinion to a reasonable degree of medical certainty to support that decision.

II. The trial court’s failure to provide the jury with an instruction on attempt as to the charge of rape constituted a violation of appellant’s right to a fair trial and plain error.

III. The trial court committed plain error in permitting a state’s witness to vouch for the credibility of one of the alleged victims.

IV. The trial court deprived appellant of his constitutional rights to due process and a fair trial in failing to conduct a Daubert hearing concerning whether the analysis of historical cell phone records to determine location of an individual’s phone is scientifically reliable, as requested by appellant, and simply admitting such testimony at trial.

II. Law and Analysis

A. Competency

{¶17} In his first assignment of error, appellant argues that the trial court erred by

finding him competent to stand trial because he was not evaluated at Twin Valley — as

ordered by the trial court and recommended by Dr. Noffsinger — and the trial court’s

finding was not supported by any medical evidence.

{¶18} A defendant who is legally incompetent may not stand trial. State v. Berry,

,

(1995), citing Pate v. Robinson,

,

,

(1966), and Drope v. Missouri,

,

,

(1975). The conviction of an accused while he is not legally

competent to stand trial violates due process of law. See State v. Rubenstein,

,

(8th Dist. 1987).

{¶19} The test for determining whether a defendant is competent to stand trial is

“‘whether [the defendant] has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding — and whether he has a rational as well as

factual understanding of the proceedings against him.’”

, quoting Dusky v.

United States,

,

,

(1960). R.C. 2945.37(G)

provides that a defendant is presumed to be competent to stand trial. The burden is on

the defendant to prove by a preponderance of the evidence that he is not competent.

State v. Jordan,

,

,

,  28.

{¶20} A trial court’s finding that a defendant is competent to stand trial will not be

disturbed when there is some reliable and credible evidence supporting those findings.

State v. Vrabel,

,

,

,  33; State v.

Williams,

,

(1986). Deference on these issues

should be given “to those who see and hear what goes on in the courtroom.” State v.

Cowans,

,

(1999).

{¶21} In the instant matter, it is undisputed that the issue of appellant’s

competency to stand trial was raised in the trial court. After appellant feigned a suicide

attempt and smeared feces on himself and his holding cell, the trial court referred appellant to the court psychiatric clinic for a competency evaluation. Dr. Noffsinger

evaluated appellant and submitted his report to the trial court.

{¶22} The trial court held two hearings to address the issue of appellant’s

competency to stand trial. First, the trial court held a hearing to review Dr. Noffsinger’s

report and recommendation. The trial court reviewed appellant’s pro se motion to

disqualify counsel with defense counsel in open court and acknowledged that appellant

demonstrated intelligence and clarity of thought in the motion. Furthermore, the trial

court attempted to discuss Dr. Noffsinger’s report and recommendation and the motion to

disqualify counsel with appellant. When appellant refused to answer the trial court’s

questions, the trial court noted that appellant’s “command of the English language was

substantially clearer in the motion [to disqualify.]” The trial court ordered appellant to

be transferred to Twin Valley for an evaluation. For reasons unclear to this court,

appellant was neither transferred to nor evaluated by Twin Valley. Second, after

learning that appellant was not transferred to Twin Valley for an evaluation, the trial court

held another hearing to evaluate appellant’s competency to proceed to trial. The state

presented evidence of appellant’s jail phone calls at the competency hearing. After

hearing the state’s evidence, the trial court concluded that appellant was competent to

stand trial.

{¶23} Appellant emphasizes that Dr. Noffsinger was unable to form an opinion

within a reasonable medical certainty about his ability to understand the nature and

objectives of the proceedings and assist in his defense. Furthermore, appellant argues that because he was not evaluated at Twin Valley, there was neither a “definitive”

psychiatric evaluation nor a determination about his competency. Appellant contends

that the trial court’s competency finding was not supported by any medical evidence and

was based solely on the testimony of a prosecutor’s office investigator regarding

appellant’s jail phone calls. We disagree.

{¶24} After reviewing the record, we find that the trial court complied with R.C.

2945.37 in determining whether appellant was competent to stand trial. Furthermore, we

find that the trial court’s competency determination is supported by reliable and credible

evidence. The trial court’s finding was based on (1) Dr. Noffsinger’s report, (2) the trial

court’s review of appellant’s motion to disqualify counsel, (3) the fact that appellant was

uncooperative with defense counsel, the medical professionals who sought to evaluate

him, and the trial court during the first competency hearing, (4) the state’s evidence of

appellant’s jail phone calls and the testimony of the prosecutor’s office investigator, and

(5) the trial court’s own observations of appellant. Thus, reliable and credible evidence

supports the trial court’s decision, and the trial court did not abuse its discretion in finding

that appellant was competent to stand trial.

{¶25} Appellant’s outrageous behavior, as displayed by the feigned suicide attempt

and the feces incident, does not undermine the trial court’s finding of his competence to

stand trial. Vrabel,

,

,

, at  25-29.

In State v. Block,

,

(1986), the Ohio Supreme Court

noted that “[i]ncompetency must not be equated with mere mental or emotional instability or even outright insanity. A defendant may be emotionally disturbed or even psychotic

and still be capable of understanding the charges against him and of assisting his

counsel.”

. In light of the aptitude and intuition that appellant demonstrated

in his motion to disqualify counsel and the jail phone calls during which he discussed his

case in detail, the trial court reasonably determined that despite his outlandish conduct,

appellant had the present ability to consult with his lawyer and a sufficient understanding

of the proceedings against him.

{¶26} Accordingly, appellant’s first assignment of error is overruled.

B. Attempted Rape Instruction

{¶27} In his second assignment of error, appellant argues that the trial court’s

failure to provide an attempted rape instruction to the jury violated his constitutional right

to a fair trial. Specifically, appellant argues that he was entitled to an instruction on the

attempt statute, R.C. 2923.02, for the offense of anally raping S.N. because she provided

conflicting accounts of the incident.

{¶28} We initially note that defense counsel neither requested an attempted rape

jury instruction nor objected to the jury instructions in the trial court. Accordingly,

appellant has waived all but plain error. State v. Edgerson, 8th Dist. Cuyahoga No.

101283,

, ¶ 15.

{¶29} Under Crim.R. 52(B), a plain error affecting a substantial right may be

noticed by an appellate court even though it was not brought to the attention of the trial

court. However, an error rises to the level of plain error only if, but for the error, the outcome of the proceedings would have been different. State v. Harrison,

,

,

; State v. Long,

,

(1978). Notice of plain error “is to be taken with the utmost caution,

under exceptional circumstances, and only to prevent a manifest miscarriage of justice.”

{¶30} This court reviews a trial court’s decision on jury instructions for an abuse

of discretion. State v. Leonard, 8th Dist. Cuyahoga No. 98626,

.

Jury instructions are reviewed in their entirety to determine if they contain prejudicial

error. State v. Fields,

,

(8th Dist. 1984).

{¶31} In the instant matter, appellant was charged with anally raping S.N. in

violation of R.C. 2907.02. R.C. 2907.02(A)(2) states, “[n]o person shall engage in

sexual conduct with another when the offender purposely compels the other person to

submit by force or threat of force.” Sexual conduct is defined in R.C. 2907.01(A) as

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.

{¶32} The crime of attempted rape is a lesser included offense of rape. See State

v. Williams,

,

(1996). Ohio’s general attempt

statute states, “[n]o person, purposely or knowingly, * * * shall engage in conduct that, if

successful, would constitute or result in the offense.” R.C. 2923.02(A). The fact that

an offense is a lesser included one of a greater offense does not automatically entitle a defendant to a lesser included offense instruction. State v. Smith, 8th Dist. Cuyahoga

No. 91715,

, ¶ 25.

{¶33} A jury instruction on a lesser included offense is required only when the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense.

citing State v. Thomas,

,

(1988), paragraph two of the syllabus. An

instruction is not warranted when “some evidence” on the lesser included offense is

presented. State v. Shane,

,

(1992). “To

require an instruction * * * every time some evidence, however minute, is presented

going to a lesser included (or inferior-degree) offense would mean that no trial judge

could ever refuse to give an instruction on a lesser included (or inferior-degree) offense.”

.

{¶34} Appellant argues that he was entitled to a lesser included instruction on

attempted rape because S.N. provided conflicting accounts of whether she had been

anally penetrated.

{¶35} S.N. testified that her normal morning routine consisted of walking, running,

and stopping at a coffee shop before going to work. S.N. testified that she was attacked

during her morning routine by an unknown male on September 2, 2014. She testified

that the attacker struck her head, knocked her to the ground, and held a gun to her head.

She testified that her attacker pulled out a condom and told her that her options were to

engage in oral, anal, or vaginal sex. She testified that her attacker pulled her hair, pushed her head down on his penis, and forced his penis into her mouth. She testified

that her attacker continued to strike her with his fist and his gun. She testified that her

attacker proceeded to push her against a wall, pull down her shorts, and penetrate her

anally with his penis. She testified that she does not believe that her attacker “got all the

way in[,]” and that it “ended pretty quickly.” She testified that her attacker took her

iPod and left the scene. She testified that she ran down Clifton Boulevard and informed

a man at a bus stop that she had just been attacked.

{¶36} Appellant contends that S.N. reported that her attacker “tried penetrating

[her] from behind, barely penetrated, if anything?” However, S.N. explained, “No, not

‘if anything.’ He penetrated. He didn’t get all the way inside.” S.N. further clarified,

“He stopped before he was able to fully penetrate me anally[.]”

{¶37} In addition to S.N.’s testimony, the state presented the testimony of the

following witnesses who interacted with S.N. following her attack: (1) the man at the bus

stop, (2) Lucas Hastings, (3) Elizabeth Booth, and (4) Detective Michael Moctezuma.

{¶38} First, the man at the bus stop who S.N. informed about the attack testified

that S.N. was “frantic” and was “hollering for help.” He testified that S.N. told him that

somebody “hit her in the eye” and “had beat her up.” He testified that he told S.N. to sit

down and he called 911. He testified that S.N. “was crying, she was upset. She was

really upset.” Appellant emphasizes that the man at the bus stop testified that S.N.

“seemed only ‘upset.’” {¶39} Second, Lucas Hastings, an emergency medical technician (“EMT”) with

the city of Cleveland, testified that he responded to the call regarding S.N.’s attack.

Hastings testified that he spoke with S.N. after responding to the scene. Hastings

testified that S.N. pulled him to the side of the ambulance, away from the crowd, and

indicated that although she told people in the crowd that she had been attacked, she had

actually been raped and robbed as well. Hastings testified that S.N. said that her eye was

hurt and that she had been struck in the face with a gun. Hastings testified that S.N.

seemed “kind of nervous,” appeared to be in shock, and “was kind of at a loss of words.”

Appellant emphasizes that Hastings’s report noted that S.N.’s attacker only “tried to

have sex with her.” However, Hastings’s report also noted that S.N.’s attacker raped her

and used a condom.

{¶40} Third, Elizabeth Booth, a registered nurse at MetroHealth Medical Center

(“MetroHealth”) in Cleveland, Ohio, testified that she treated S.N. on September 2, 2014.

Booth testified that she provided S.N. with medications to treat sexually transmitted

diseases and HIV that she possibly could have obtained and pregnancy. Booth testified

that she performed a rape kit examination on S.N. Booth testified that S.N. told her that

she was forced to perform oral sex on her attacker and that her attacker “tr[ied] to

penetrate her anally, which he was able to partially.” Booth testified that S.N. informed

her that her attacker wore a condom. Booth testified that S.N.’s demeanor throughout

the examination was “mixed,” explaining:

[S.N. was] [v]ery angry that [the attack] happened to her. She was upset. Said she took precautions, she wasn’t listening to music, she was paying attention to her surroundings, this came out of nowhere. She thought she was in a nice area, that she was safe, so she was very upset that happened to her. Then she was worried about possible injuries to her face that she had.

Booth read a physician’s narrative of the incident, based on S.N.’s description, from

S.N.’s medical records. Appellant emphasizes that the narrative provided, in relevant

part, “assailant attempted to rape [S.N.] [S.N.] states that [her attacker] put on a condom

and tried penetrating her from behind, but probably only briefly penetrated her anus, if

anything.” However, the narrative also noted that S.N. told the nurse that she had been

anally penetrated, and that S.N. clarified that the penetration was partial.

{¶41} Fourth, Detective Michael Moctezuma of the Cleveland Police Department

testified that he was working in the sex crimes unit on September 2, 2014. Detective

Moctezuma testified that S.N. provided him with a brief statement of the attack on the

morning of September 2, 2014, at MetroHealth. He testified that he subsequently

conducted a lengthy interview of S.N. on September 4, 2014, at the sex crimes unit. He

testified that he took notes during this interview. Appellant emphasizes that Detective

Moctezuma testified that the attacker put on a condom and attempted to anally penetrate

S.N. However, Detective Moctezuma testified that S.N. told him that her attacker wore

a condom during the anal sex.

{¶42} After reviewing the record and the testimony regarding S.N.’s attack, we

find that the trial court’s failure to provide an attempted rape instruction did not rise to the

level of plain error. S.N. consistently testified that appellant anally penetrated her.

Furthermore, the witnesses who interacted with S.N. after the attack consistently testified that S.N. reported that she had been anally raped during the attack. This testimony could

not have supported both an acquittal of rape and a conviction on the lesser-included

offense of attempted rape. The jury could not have inferred anything less than

penetration from S.N.’s testimony that appellant anally penetrated her with his penis.

Under the R.C. 2907.01(A) definition of sexual conduct, “[p]enetration, however slight, is

sufficient to complete vaginal or anal intercourse.” (Emphasis added.) Thus, even

though S.N. testified that the penetration was only “partial,” and that appellant was not

able to fully penetrate her, the attempted rape instruction was not warranted by the

evidence.

{¶43} Finally, we note that an attempted rape instruction is not consistent with

appellant’s theory of the case at trial. Appellant’s theory of the case at trial was that

other perpetrators may have been involved in the attacks. During closing arguments,

appellant’s counsel suggested that the state’s theory of the case — that a single man

attacked S.N. — was wrong.

{¶44} “In a case in which there is a conflict in the testimony and the defendant has

a reasonable hope that the jury will believe his evidence and return a verdict of not guilty,

it is a matter of trial strategy whether to seek to have the jury instructed concerning a

lesser offense, or not to seek such an instruction and to hope for an acquittal.” State v.

Catlin,

,

(2d Dist. 1990), citing State v. Clayton,

,

(1980). In State v. Smith, 8th Dist. Cuyahoga No.

90478,

, this court held that defense counsel’s failure to request jury instructions on the lesser-included offenses of voluntary manslaughter and aggravated

assault did not constitute ineffective assistance because (1) the trial testimony did not

support a request for the instructions, and (2) counsel chose to pursue a self-defense

theory.

at  17.

{¶45} In the instant matter, an attempted rape jury instruction would have been

inconsistent with both the trial testimony and appellant’s theory of defense. Appellant’s

decision to challenge the state’s theory that a single man attacked S.N., rather than

presenting the theory that appellant only committed the lesser-included offense of

attempted rape, was a reasonable trial strategy. Thus, appellant cannot demonstrate that

he was prejudiced by the trial court’s failure to provide the jury with an attempted rape

instruction.

{¶46} Based on the foregoing analysis, the trial court neither abused its

discretion nor committed plain error by failing to provide an attempted rape jury

instruction. Appellant’s second assignment of error is overruled.

C. Officer Kazimer’s Testimony

{¶47} In his third assignment of error, appellant argues that the trial court

committed plain error by permitting Cleveland police officer John Kazimer to “vouch for

the credibility of one of the alleged victims.” Appellant did not object to Officer

Kazimer’s trial testimony. Thus, we review this claim for plain error.

{¶48} It is reversible error to admit testimony from a purported expert or lay

witness attesting to the believability of another’s statements. State v. Boston,

,

(1989). “[I]n 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.” State v. Pizzillo, 7th Dist. Carroll No. 746,

, 15 (Jan. 17, 2002), citing

.

{¶49} In the instant matter, the testimony in question occurred when Officer

Kazimer was discussing his post-attack interview of S.N. When asked why he was

trying to gather information from S.N. during the interview, Officer Kazimer stated, “I

had every reason to believe that [S.N.] was making true statements about a crime that had

been committed against her in the city where I am sworn to protect and uphold the law.”

Appellant argues that Officer Kazimer’s statement infringed upon the jury’s role of

making veracity and credibility determinations.

{¶50} The state argues that Officer Kazimer’s statement was not impermissible

because he was testifying about S.N.’s post-attack demeanor and behavior — not about

S.N.’s credibility or the reliability or believability of S.N.’s statements. We agree.

{¶51} When read in the context of Officer Kazimer’s entire testimony, we do not

find that he was offering an opinion as to the truthfulness of S.N.’s accusations. Instead,

Officer Kazimer was essentially explaining that, based on his experience, S.N.’s

demeanor during the interview was consistent with the demeanor of a person who had just

been sexually assaulted. Prior to the disputed statement, Officer Kazimer testified that

S.N. appeared to be angry and frustrated during the interview. Officer Kazimer testified,

“[s]he was angry at what had happened to her,” and, “she kept saying she was sorry, sorry to waste our time * * *. She just, her demeanor, kind of sitting forward, just like ‘I can’t

believe this happened,’ frustration.”

{¶52} Appellant further argues that Officer Kazimer’s statement about S.N. was

even more prejudicial because he is a police officer. In support of his argument,

appellant directs this court to State v. Huff,

,

(1st

Dist. 2001).

{¶53} In Huff, a detective testified at trial about the victims’ credibility.

. The detective testified that he “absolutely” found that the victims were credible

and that they were telling the truth.

On appeal, the First District described the case

as a “credibility contest between the victims and their identification of Huff as the shooter

and Huff and his alibi witness.”

The court held that the detective’s opinion

testimony “acted as a litmus test of the key issue in the case and infringed upon the role of

the fact finder, who is charged with making determinations of veracity and credibility.”

quoting State v. Eastham,

,

(1988).

Furthermore, the court found that the fact that the “vouching [witness]” was a police

officer further exacerbated the problem.

The court explained, “[j]urors are likely to

perceive police officers as expert witnesses, especially when such officers are giving

opinions about the present case based upon their previous experiences with other cases.”

quoting State v. Miller, 2d Dist. Montgomery No. 18102,

, 14 (Jan. 26, 2001). {¶54} In Miller, two police officers offered opinions regarding the truth of the

victim’s accusations. The Second District held that the officers’ testimony violated

Boston:

their testimonies declared that [the victim’s] statements were truthful and that [the defendant] had committed the alleged acts against her. As such, [the officers] infringed upon the role of the jury which, as the fact finder, was charged with assessing the veracity and credibility of [the victim and the defendant].

Id. at 15. Although, the court found that it was improper to admit the officers’ testimony

regarding the truthfulness of the victim, the court held that the admission was harmless

error in light of the independent evidence of the crimes. Id. at 18-19.

{¶55} In Boston,

,

, the three-year-old sexual

assault victim was unavailable to testify at trial. The issue before the Ohio Supreme

Court was whether the victim-child’s doctor and psychologist could testify about the

child’s out-of-court statements regarding the abuse. The court held that “[a]n expert

may not testify as to the expert’s opinion of the veracity of the statements of a child

declarant.”

at syllabus. The court emphasized that the admission of such testimony

was not only improper, but was egregious, prejudicial, and constituted reversible error.

.

{¶56} In the instant matter, unlike Boston, S.N. testified before the jury at trial.

Furthermore, unlike Huff and Miller, we find that Officer Kazimer was testifying about

S.N.’s post-attack demeanor and behavior — not about her credibility or the truthfulness of her testimony or accusations. Thus, even though the statement in question was made

by a police officer, we cannot say that it was inadmissible.

{¶57} Assuming, arguendo, that the trial court erred by admitting Officer

Kazimer’s statement, appellant cannot demonstrate that but for the error, the outcome of

the proceedings would have been different. S.N. testified before Officer Kazimer.

Accordingly, before the jury heard the statement in question, the jury had an opportunity

to hear S.N.’s testimony, view her demeanor, and assess her credibility.

{¶58} Based on the foregoing analysis, we cannot say that the trial court

committed plain error by admitting Officer Kazimer’s statement. Appellant’s third

assignment of error is overruled.

D. Wiles’s Testimony

{¶59} In his fourth assignment of error, appellant argues that the trial court’s

failure to hold a Daubert hearing to determine the reliability of Todd Wiles’s testimony

regarding cell phone sector data deprived him of his constitutional rights to due process

and a fair trial. Specifically, appellant contends that Wiles’s testimony was inadmissible

under Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,

,

,

(1993), because interpreting cell phone sector data is not

within a layperson’s knowledge or experience, and the data and methodology that Wiles’s

relied upon in rendering his opinion is unreliable.

{¶60} We initially note that appellant’s reliance on Evid.R. 702 and Daubert is

misplaced. The trial court did not recognize Wiles as an expert witness. Furthermore, we note that the parties stipulated that the information in the cell phone records provided

by appellant’s carrier was authentic.

{¶61} The admission or exclusion of evidence is a matter left to the trial court’s

sound discretion and will not be disturbed absent an abuse of discretion. State v. Dunn,

8th Dist. Cuyahoga No. 101648,

. An abuse of discretion is a

decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶62} Wiles is a civilian crime analyst for the Cleveland Police Department.

Wiles has worked as a crime analyst for ten years: he worked in Jacksonville, Florida for

four years and was hired by the Cleveland Police Department in 2009. Wiles is currently

a “crime analyst 3.” He explained that his unit is in charge of “analyzing data for the

police department in computer databases” and “doing all the geographic information

system mapping for the police department.” Wiles has a bachelor’s and master’s degree

in criminal justice and computer science. Wiles testified that he has worked on “at least

a hundred cell phone cases” over the past five years. Wiles testified in detail about the

process by which he determines the location from which a person placed a phone call by

reviewing the person’s cell phone records.

{¶63} In the instant matter, the state introduced Wiles’s testimony for two

purposes: (1) to show that appellant was in the area where the Cleveland rape was

committed, and (2) to demonstrate how investigators ultimately discovered appellant’s

identity in this case through his brother’s cell phone. Wiles explained that he takes the information from a person’s cell phone records and creates a map. Wiles testified that

the map allows him to see “where a person was when they were completing cellular

telephone calls.” Wiles testified that he used this process to generate a map of the

location of appellant’s phone based on the phone records that he received. During trial,

defense counsel objected to Wiles’s testimony, arguing that his testimony was not based

on proven scientific methods, his methods have not been scientifically verified, and that

his testimony is speculative at best.

{¶64} The state opposed defense counsel’s objection, arguing that Wiles’s

testimony should not be subjected to a Daubert analysis because the state was not putting

forth any expert testimony and the cell phone technology that Wiles’s testified about is

well established. The state argued that although Wiles has a high level of expertise, a

high degree of expertise is not required to generate a map based on a person’s cell phone

records.

{¶65} The trial court was not inclined to subject Wiles’s testimony to a Daubert

analysis:

cell phone technology, while relatively new in the history of mankind, has been around for 30 years now and brings with it cell phone towers and triangulation, and the matters have become common scientifically. At first glance, the [c]ourt does not look at this as some new scientific area that needs to be tested using Daubert principles.

Accordingly, the trial court overruled defense counsel’s objection to Wiles’s testimony

and noted that the defense would have “free reign” to cross-examine him. {¶66} Appellant directs this court to United States v. Evans,

(N.D.Ill. 2012). In Evans, the prosecution sought to call an FBI special agent to testify

about “the operation of cellular networks and how to use historical cell site data to

determine the general location of a cell phone at the time of a particular call.”

.

The agent used the “granulization” theory and proposed to testify that phone calls placed

from the defendant’s cell phone could have come from the building where the victim was

held for ransom.

The trial court held an evidentiary hearing, pursuant to Evid.R.

702 and Daubert, to determine whether the proposed evidence and analysis were

admissible. In determining the admissibility of the proposed testimony, the trial court

distinguished lay witness testimony from expert testimony:

Lay witness testimony is admissible under Rule 701 when it is “rationally based on [a] witness’s perception” or based on “a process of reasoning familiar in everyday life.” * * * Understanding how the aforementioned factors affect a cell phone’s ability to connect a particular tower, however, cannot be said to be within the perception of the untrained layman. Rather, this type of understanding demands “scientific, technical, or other specialized knowledge” of cellular networks and “results from a process of reasoning which can be mastered only by specialists in the field.” * * * [The special agent] may therefore provide lay opinion testimony concerning (1) the call data records obtained for [defendant’s] phone and (2) the location of cell towers used by [defendant’s] phone in relation to other locations relevant to the crime; but if [the agent] wishes to testify concerning (1) how cellular networks operate, i.e., the process by which a cell phone connects to a given tower or (2) granulization theory he must first meet the demands of Rule 702 and Daubert.

.

{¶67} The trial court concluded that the special agent is qualified to testify as an

expert regarding the operation of cellular networks and the “granulization” theory.

. The court further concluded that the agent’s testimony on the subject is reliable.

However, the court held that the agent’s “granulization” theory was not reliable

because (1) the agent did not account for the factors that can affect whether a cell phone

connects to the closest tower or is rerouted to another tower, and (2) the theory has not

been subject to scientific testing or formal peer review, and has not gained general

acceptance in the scientific community.

.

{¶68} In Dunn, 8th Dist. Cuyahoga No. 101648,

, a criminal

intelligence analyst testified about a map she created based on information from the

defendant’s cell phone records. Id. at ¶ 37. The analyst identified the cellular towers on

the map that were “hit” by the defendant’s cell phone. Id. On appeal, this court held

that the trial court did not abuse its discretion by allowing the analyst’s testimony because

“a layperson could compare the locations depicted on the [phone] records to the

corresponding location on the [analyst’s] site map.” Id. at ¶ 44, citing State v. Perry,

11th Dist. Lake No. 2011-L-125,

, ¶ 65.

{¶69} In the instant matter, Wiles’s testimony concerned (1) appellant’s cell phone

records, and (2) the location of the cellular towers used by appellant’s phone in relation to

other locations relevant to the crime. As the Evans and Dunn courts explained, this

testimony is lay opinion testimony that does not require “specialized knowledge, skill,

experience, training, or education” regarding cellular networks. Evid.R. 702(B). Thus,

Wiles’s testimony is not subject to an Evid.R. 702 and Daubert analysis. {¶70} On cross-examination, Wiles testified about the potential problems with

estimating a cell phone’s location based on phone records. Wiles testified that cell

phones usually connect to the closest cellular tower and that there are “small anomalies

that would cause [the phone] to [connect] to a different tower.” Wiles explained that a

phone call can be rerouted to a different cellular tower if there is bad weather, damage to

a cellular tower, the cellular tower is at full capacity, or if a cell phone is “roaming” or

has no signal. These potential problems go to the weight of Wiles’s testimony — not to

the reliability or admissibility of the testimony. See State v. White, 2d Dist. Montgomery

No. 26093,

.

{¶71} The Evans court explained that testimony concerning “how cellular

networks operate” or “the process by which a cell phone connects to a given tower” is not

within the knowledge or experience of a lay witness.

. Although Wiles

testified about these matters, his testimony was in direct response to defense counsel’s

inquiries on cross-examination. The doctrine of invited error holds that a litigant may

not “take advantage of an error which he himself invited or induced.” State v. Campbell,

,

(2000). Accordingly, even if Wiles’s testimony on

cross-examination went beyond a lay witness’s knowledge and experience, appellant

cannot now complain of the testimony that defense counsel elicited at trial.

{¶72} Based on the foregoing analysis, we cannot say that the trial court abused its

discretion by admitting Wiles’s testimony. Appellant’s fourth assignment of error is

overruled. III. Conclusion

{¶73} After a thorough review of the record and law, we affirm the trial court’s

judgment. First, the trial court complied with R.C. 2945.37 in determining whether

appellant was competent to stand trial, and trial court’s competency determination is

supported by reliable and credible evidence. Second, the trial court neither abused its

discretion nor committed plain error by failing to provide an attempted rape jury

instruction. An attempted rape jury instruction would have been inconsistent with both

the trial testimony and appellant’s theory of defense. Third, the trial court did not

commit plain error by admitting Officer Kazimer’s statement. When read in the context

of Officer Kazimer’s entire testimony, the statement in question pertained to S.N.’s

post-attack demeanor and behavior, not her credibility or the truthfulness of her testimony

or accusations. Furthermore, the jury had the opportunity to hear S.N.’s testimony and

assess her credibility prior to Officer Kazimer’s statement. Thus, appellant cannot

demonstrate that but for the admission of the statement, the outcome of the proceedings

would have been different. Fourth, the trial court did not abuse its discretion by

admitting Wiles’s testimony. The trial court was not required to conduct an Evid.R. 702

and Daubert analysis before admitting Wiles’s testimony regarding appellant’s cell phone

records and the location of the cellular towers used by appellant’s phone.

{¶74} Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common

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

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

_______________________________________________ FRANK D. CELEBREZZE, JR., JUDGE

LARRY A. JONES, SR., A.J., CONCURS; MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)

MARY J. BOYLE, J., DISSENTING:

{¶75} I respectfully dissent.

{¶76} R.C. 2945.37 protects a defendant’s right not to be tried or convicted while

incompetent, which is a fundamental due process right. State v. Were,

,

,

.

{¶77} This case presents a unique set of facts. Here, after it became clear that

Daniel’s competency was at issue, the trial court properly referred Daniel for a

competency evaluation and then held a hearing after receiving the expert report of Dr.

Stephen Noffsinger, psychiatrist with the court psychiatric clinic. At the hearing on

March 9, 2015, the parties stipulated to the findings contained in Dr. Noffsinger’s report,

which recommended that Daniel should “be hospitalized for a 20-day inpatient competence to stand trial evaluation at the maximum security facility at Twin Valley

Behavioral Healthcare in Columbus, Ohio.” The trial court accepted the parties’

stipulations and accordingly ordered Daniel to Twin Valley Behavioral Healthcare for an

inpatient competency evaluation pursuant to R.C. 2945.371(C) and (D).

{¶78} As the majority notes, for reasons unknown to the court, this order was not

followed. But rather than bring this error to the trial court’s attention, the state appears

to have seized the opportunity to collect further evidence as to Daniel’s competency in

lieu of the opinions of trained experts at Twin Valley Behavioral Healthcare. I find that

Daniel’s “fundamental due process rights” were violated when the trial court vacated its

earlier order to transport Daniel for further observation and to obtain an inpatient

competency evaluation. The record does not support the trial court’s decision to vacate

this order. Given the stakes at issue and the parties’ stipulation to Dr. Noffsinger’s

report, I do not believe that the process should have been cut short simply to expedite the

trial.

{¶79} I also do not find that the telephone calls recorded and offered into evidence

by the state constitute competent, credible evidence to support the trial court’s finding.

While both the state and trial court found it significant that Daniel used another inmate’s

pin number to make these calls in an attempt to avoid detection, I do not. The substance

of the telephone calls still raises concerns with Daniel’s competency. As noted by

defense counsel, Daniel expressed confusion during one of the telephone calls and also

made incorrect statements about the legal proceedings — all of which supports the defense’s position that Daniel is “not fully competent, not fully capable of assisting” in

his own defense.

{¶80} Moreover, the complexity of mental illness is not always apparent to

untrained professionals. As this writer has previously recognized, “‘One can be

intelligent * * * yet still have underlying psychiatric and emotional problems which cause

incompetence. Simply having the capacity for rational understanding in the abstract is

not sufficient if psychiatric or emotional problems prevent applying rational faculties to

the problem.’” State v. Halder, 8th Dist. Cuyahoga No. 87974,

(dissenting opinion), quoting James A. Cohen, The Attorney-Client Privilege, Ethical

Rules, and the Impaired Criminal Defendant, U.Miami L.Rev. 529, 543 (1998).

{¶81} While I appreciate the discretion afforded the trial court in deciding whether

a defendant is competent to stand trial, I find that the trial court abused its discretion in

failing to enforce its previously issued order. The hearing held on March 9, 2015,

demonstrated that Daniel’s competency was clearly at issue. As noted in Dr.

Noffsinger’s report and stipulated by all the parties, more testing by trained experts was

needed to ascertain whether Daniel was competent to stand trial. The state’s evidence of

Daniel’s telephone calls does not sufficiently fill in this gap to support the trial court’s

finding of competency; nor did it justify shortcutting the process, especially given the due

process rights at issue.

{¶82} Accordingly, I would sustain the first assignment of error and remand for

further proceedings.