[Cite as State v. Black,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108001 v. :

RAYSHON L. BLACK, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 5, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-613986-B; CR-17-614959-A; and CR-17-618389-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Eben McNair, Assistant Prosecuting Attorney, for appellee.

Rick L. Ferrara, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Rayshon Black (“Black”) appeals from his

conviction for rape and kidnapping. After a thorough review of the evidence, we find

the trial court did not err in admitting the victim’s prior consistent statements,

defense counsel was not ineffective for failing to object to the alleged hearsay statements, and Black’s conviction is not against the manifest weight of the evidence.

We therefore affirm.

I. Procedural History

On March 23, 2017, Black was charged in a three-count indictment:

Count 1 — rape in violation of R.C. 2907.02(A)(2); Count 2 — kidnapping in

violation of R.C. 2905.01(A)(4) with a sexual motivation specification; and Count 3

— gross sexual imposition in violation of R.C. 2907.05(A)(5). The charges stem from

an incident that occurred in August 2016. The victim in each count is Black’s

stepdaughter, T.S.

On August 6, 2018, the matter proceeded to a jury trial. After the trial

court denied Black’s Crim.R. 29 motion for dismissal, the jury found Black guilty of

rape and kidnapping in Counts 1 and 2, respectively, and not guilty of gross sexual

imposition in Count 3. The trial court then imposed a prison sentence of ten years

on each count, to be served concurrently to each other but consecutive to the

sentence imposed in another case at the same sentencing hearing.

Black now appeals his conviction, assigning three errors for our

review:

I. The trial court reversibly erred in admitting hearsay into evidence in the form of prior consistent statements of the alleged victim without proper application of Evid.R. 801(D)(1).

II. Defense counsel provided ineffective assistance of counsel by failing to object to hearsay evidence presented at trial.

III. The manifest weight of the evidence did not support a conviction of Appellant. II. Evidence at Trial

T.S., who was 21 years old at the time of trial, has cerebral palsy due

to medical complications suffered at birth. Because of her cerebral palsy, she has

difficulty speaking clearly.

Alicia O’Neill (“O’Neill”), a speech language pathologist with the

Cuyahoga County Board of Developmental Disabilities, testified concerning her

interaction with the victim, T.S. O’Neill received a referral in 2017 from an

employment and planning support administrator at the board to assist T.S. in

communicating with potential employers. O’Neill testified that T.S.’s cerebral palsy

has caused a motor speech impairment. Because of this impairment, T.S. has

difficulty speaking clearly and she could not effectively communicate with potential

employers. O’Neill explained that T.S. can communicate verbally, but “it can be

difficult for others to understand what she is saying, especially at the conversational

level.” O’Neill therefore obtained equipment such as a computerized touch pad to

help T.S. communicate.

T.S. testified at trial with the assistance of her touch pad device. In

2016, at the time of the alleged incident, T.S. was living in a home on Linwood

Avenue with her mother, Priscilla Black (“Priscilla”), and Priscilla’s husband, the

defendant. T.S.’s brothers also lived there.

T.S. testified that on August 4, 2016, she was heading downstairs from

her bedroom to get a drink from the kitchen when Black opened the door of his

bedroom, grabbed T.S. by the arm, and pulled her into his bedroom. T.S. told Black to “get off me” and “leave me alone.” She stated that Black “kept grabbing me, and

I was yanking away, telling him to get off of me, but * * * my body can’t — .” T.S.

testified that she was not strong enough to fight her stepfather off. T.S. further

stated that after Black got her into his bedroom, he put her on the bed, took off her

shorts and underpants as well as his shorts, so that he was naked from the waist

down, and he “stuck his penis in [her] vagina.” T.S. repeatedly told Black to get off

of her. According to T.S., at one point, her mother walked in the room and said, “Oh

my God * * * you all can’t keep doing what you doing” and then left the room. Black

eventually stopped, and T.S. left the room to talk to her mother, but her mother

would not listen to her.

Thereafter, T.S. took a shower, placed the clothing she was wearing

into the laundry, and later washed her clothes. The next morning, T.S. sent a text

message to her stepmother, TaJuan Hatcher (“Hatcher”), stating:

[Good morning] mom when u get a chan[ce] may u or my dad call me please something happen[ed] to me last night and I [know] that my mom don’t believe and what I told her I ask[ed] her not to tell anyone but I [know] she going to say something so if u can may u or my dad please call me thank you this is seri[ous].

Hatcher testified that when she received T.S.’s text she was at work,

and she let T.S. know that she would call her when she got home. She testified that

she did not realize how serious the matter was.

T.S. also called her father, Le.S., and left him a voicemail message

asking him to call her back. T.S. told her father in the message that she needed to

talk to him about something serious. T.S.’s father testified that T.S. called him between midnight on August 6, 2016, and the early morning hours of August 7, 2016,

but because he is “not really a phone person,” he did not check his voicemail until

later in the day on Sunday, August 7, 2016. Le.S. testified that although T.S. did not

tell him in the message what happened, she let him know that it was “serious.” Le.S.

attempted to return his daughter’s call but the call did not go through. He then saw

T.S. two days later, when T.S.’s sister dropped her off at his home.

On Sunday, August 7, 2016, T.S. went to church with her friend

Marcus Kincaid (“Kincaid”) and his grandmother. After church, T.S. relayed to

Kincaid that something bad had happened to her a couple of days before. Kincaid

testified that after church, T.S. was upset and crying.

T.S. stayed with Kincaid until her sister could pick her up. After her

sister picked her up, T.S. stayed with her sister for a couple of days and told her what

had happened. Then on August 9, 2016, T.S.’s sister brought T.S. to her father and

stepmother’s house, where T.S. told her parents what had happened with Black.

Hatcher testified that when T.S. had come over that Sunday, T.S. was upset and

“scared to talk,” but she eventually told Hatcher and Le.S. that her stepfather raped

her. Hatcher took T.S. to the hospital but T.S. was unable to get a sexual assault

examination.

Thereafter, Hatcher and Le.S. drove T.S. to the police station to report

the rape but were not able to meet with an officer, so they returned home. Because

T.S. needed her hair done and she needed a new phone, Le.S. suggested that T.S. go

to the bank and get her money. Le.S. testified that he had helped initiate a lawsuit against the hospital when T.S. was born due to the hospital’s alleged negligence and

that T.S. ultimately received a medical malpractice settlement. He understood that

T.S. had an administrator from the probate court to manage T.S.’s settlement funds

until she turned 18 years old. Neither he nor Hatcher knew the amount of the

settlement.

When Le.S. and T.S. went to the bank, they learned that T.S. “had no

money.” Le.S. contacted T.S.’s attorney to inquire about the funds, to “find out what

happened to her money.” Thereafter, on August 15, 2016, Le.S. and Hatcher brought

T.S. to the police station for the second time to file a police report concerning the

rape. They also reported the missing money from T.S.’s account, with the attorney’s

assistance.

Jerry Kent, a forensic auditor with the Cuyahoga County Board of

Developmental Disabilities, testified regarding his investigation into T.S.’s account,

as he had become aware of “questionable expenditures.” Through his investigation,

he learned that a joint checking account between T.S. and T.S.’s mother, Priscilla,

had been set up from T.S.’s trust fund. He discovered that the monies located in this

joint account with her mother, totaling $101,000, had been transferred to her

mother’s own personal account in July 2015, when T.S. was 18 years old. Kent

testified that T.S.’s funds were used to purchase items not typically used for an

individual’s basic care and support, including: a large quantity of alcohol; several

automobiles, including a tow truck; and “heavy” auto insurance. By August 2016,

both T.S.’s account and Priscilla’s personal account had been depleted. Priscilla testified that she started a towing business with her husband, using funds from the

joint account.

Le.S. testified that at some point after the incident with Black, Priscilla

and Black moved out of the Linwood Avenue home. And T.S. testified that she

learned after the incident that she owned the Linwood house in which she lived with

her mother and stepfather.

On behalf of the defense, Priscilla testified that T.S. can “scream as

loud as I can,” but on August 4, 2016, Priscilla did not hear any screaming or yelling.

T.S.’s brothers testified that they do not remember anything unusual about T.S.’s

demeanor on or around August 4, 2016, and she did not seem upset. They also

testified that T.S. did not confide in them about that day. T.S.’s younger brother,

who was home on the day of the incident, stated that he did not hear any yelling that

day. T.S.’s older brother testified that one Sunday, T.S. went to church with Kincaid

and his grandmother and never returned home.

III. Hearsay

Black contends in his first assignment of error that the trial court

erred in admitting hearsay evidence of prior consistent statements that do not fall

within the scope of Evid.R. 801(D)(1). He argues that the testimony offered by

Kincaid and Le.S. was inadmissible hearsay because the testimony served no

purpose other than to bolster T.S.’s allegation of rape. Black also objects to the

state’s reading of the text message from the victim on the same basis. Finally, Black appears to argue that the victim’s medical records admitted by the state were

inadmissible hearsay. Defense counsel failed to object to the foregoing testimony.

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Generally, statements made outside of the courtroom,

offered at trial to prove the truth of what they assert, are inadmissible “hearsay”

unless an exception applies. State v. DeMarco,

,

(1987); State v. Williams, 8th Dist. Cuyahoga No. 106563,

,

¶ 32; Evid.R. 802.

Where a party fails to object to alleged hearsay testimony, we review

for plain error. State v. Obermiller,

,

,

, ¶ 72. Under Crim.R. 52(B), “plain errors or defects affecting substantial rights

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

However, “‘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. Mallory, 8th Dist. Cuyahoga No. 106052,

, ¶ 17, quoting State v. Long,

,

(1978), paragraph two of the syllabus. The “extremely high burden” of

demonstrating plain error is on the defendant. State v. Chapman, 8th Dist.

Cuyahoga No. 107375,

, ¶ 20. A. Evid.R. 801(D)(1)

Black contends that certain testimony from Kincaid and Le.S., as well

as a text message from T.S. that was read to Hatcher during Hatcher’s testimony,

are inadmissible hearsay statements. Particularly, he objects to Kincaid’s testimony

that T.S. told her after church on August 7, 2016, that “something bad happened” to

her a couple of days before. Black also objects to the following testimony elicited

from T.S.’s father:

Prosecutor: And hang on. Without telling us what she told you, * * * was she able to tell you [what] happened?

Witness: * * * [S]he told me, * * * but her sister explained it to me better * * * what was really going on.

Prosecutor: So was it your understanding that she had already told [her sister] what happened?

Witness: Yes, because that’s who she was with.

Black contends that this testimony was offered strictly to add

credibility to T.S.’s report and it conveyed that T.S. also told her sister what

happened. Finally, Black contends that the prosecutor’s reading of T.S.’s text

message to Hatcher, in which T.S. stated that something serious happened to her

the previous night, was improper because Hatcher never responded to the text and

the message served only to reiterate T.S.’s testimony.

Evid.R. 801(D)(1)(b) provides that a statement is not hearsay and is

therefore admissible if it is a prior statement by a witness that is “consistent with

declarant’s testimony and is offered to rebut an express or implied charge against

declarant of recent fabrication or improper influence or motive[.]” This rule applies only to statements that were made prior to the motivation to fabricate. State v.

Miller, 8th Dist. Cuyahoga No. 100461,

; State v. Johnson, 7th

Dist. Mahoning No. 15 MA 0197,

; State v. Smith, 12th Dist.

Butler No. CA2009-02-038,

, ¶ 103.

In explaining the purpose of this rule, the Tenth District Court of

Appeals stated:

What the rule permits is the rehabilitation of a witness whose credibility has been attacked by means of a charge that he recently fabricated his story or falsified his testimony in response to improper motivation or influence, by admitting into evidence a consistent statement made by the witness prior to the time of the suggested invention or of the emergence of the motive or influence to invent or falsify, as tending to rebut the charge.

***

Because the result of exclusion of prior consistent statements, where they are sought to be used for rebuttal purposes, would be to permit an implication of fabrication or falsification to stand without challenge, their admission should be favored to the extent that a generous view should be taken of the entire trial setting in order to determine if there was sufficient impeachment of the witness to amount to a charge of fabrication or improper influence or motivation.

Motorists Mut. Ins. Co. v. Vance,

,

(10th

Dist. 1985).

Courts have repeatedly held that attacking a victim’s credibility during

opening statements is grounds for permitting a prior consistent statement into

evidence under Evid.R. 801(D)(1)(b). State v. Abdussatar, 8th Dist. Cuyahoga

No. 86406,

(finding that because defense counsel contended

in his opening statement that the victim fabricated the rape, and because the victim testified and was subject to cross-examination, the trial court did not err by allowing

a prior consistent statement in a letter to be admitted into evidence); State v. Hunt,

10th Dist. Franklin No. 12AP-103,

(stating that defense

counsel’s opening statement implied that the victim had been untruthful in her

statements to police and therefore this allegation of recent fabrication or improper

influence permitted the state to introduce the victim’s prior consistent statements

to rehabilitate her testimony); State v. Crawford, 5th Dist. Richland No. 07 CA 116,

(noting that implications of fabrication during opening

statements are sufficient to allow the state’s use of Evid.R. 801(D)(1)(b).

Here, defense counsel in his opening statement asserted that the

victim had an ulterior motive to lie about the rape:

What we do know * * * [is that T.S.] learned that the settlement money that she expected to have when she turned 18 wasn’t there. You also are going to learn that the police report associated with the rape also talks about the theft. So if you want a motive for somebody to say something, there it is. The million dollar settlement or whatever it is that she expected to be receiving at 18 [is] not there.

Upon review, we find that the victim’s prior consistent statements as

outlined above were properly admitted to rebut defense counsel’s suggestion in his

opening statement that T.S. was motivated by the loss of her settlement funds to

make an allegation of rape. The evidence shows that each of T.S.’s prior statements

were made before she learned that the bank account containing her settlement funds

had been depleted, thus demonstrating that T.S. could not have been motivated by

the missing funds to lie about the rape. T.S. told Kincaid on August 7, 2016, three days after the rape, that “something bad happened” a couple of days before. T.S.’s

sister drove T.S. to her parents’ home on August 9, 2016, two days later, where T.S.

reported to Hatcher and Le.S. what happened with her stepfather. The text message

to which the prosecutor referred during Hatcher’s testimony was sent on August 5,

2016, the day after the rape, and Hatcher received the message while at work and

told her, via text message, that she would call her when she got home. Before having

a chance to phone T.S., however, on August 9, 2016, T.S. arrived at Hatcher’s home,

where Hatcher learned of the rape. T.S., Hatcher, and Le.S. learned about the

depleted bank account approximately August 15, 2016, one week later.

Moreover, even if we were to find this testimony improper, we find

admission of the statements does not rise to the level of plain error. Kincaid,

Hatcher, and Le.S. testified regarding what T.S. had told them. Because T.S. had

testified as to what happened, including whom she told about the incident, and the

defense cross-examined her concerning her testimony, the testimony is cumulative.

The defendant has failed to demonstrate that the admission of the victim’s prior

statements altered the outcome of the trial. Accordingly, we find no plain error in

the admission of the victim’s prior statements.

B. Medical Records

At the close of the state’s case, the prosecutor admitted into evidence,

without objection, T.S.’s medical records from the Cleveland Clinic. Black contends

that the following statement in the victim’s medical records, which are dated June 12, 2017, “did nothing more than repeat the hearsay statement of T.S.” and is

therefore hearsay:

Patient has been getting her care from Metro until recently. According to [Patient and her caretaker], [the patient] was sexually abuse[d] by her mother’s boyfriend, the case is with the police. She never had a rape kit, the time line is not very clear. According to [the patient’s] caretaker, she was told that it was late for [a] rape kit. She is asking for comprehensive STD check.

Once again, the statement made to the nurse at the hospital in June

2017 is cumulative evidence, as T.S. testified at trial that her mother’s boyfriend

(husband) raped her. And Black has failed to demonstrate that T.S.’s statement to

the nurse, as reported in her medical records, altered the outcome of the trial. We

therefore find no plain error in the admission of the medical records.

Black’s first assignment of error is overruled.

IV. Ineffective Assistance of Counsel

In his second assignment of error, Black contends that trial counsel’s

failure to object to the alleged hearsay statements outlined in his first assignment of

error, including the victim’s prior statements to Le.S., the text message T.S. sent to

Hatcher, and T.S.’s medical records, constituted ineffective assistance of counsel.

To establish a claim of ineffective assistance of counsel, Black must

demonstrate (1) his counsel was deficient in some aspect of his representation, and

(2) there is a reasonable probability that, were it not for counsel’s errors, the result

of the trial would have been different. Strickland v. Washington,

,

,

(1984). Thus, “the failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of

counsel.” State v. Davenport, 8th Dist. Cuyahoga No. 106143,

, citing Strickland at 697.

In Ohio, every properly licensed attorney is presumed to be

competent and, therefore, a defendant claiming ineffective assistance of counsel

bears the burden of proof. State v. Smith,

,

(1985). Counsel’s tactical decisions or trial strategy cannot form the basis for a claim

of ineffective counsel. State v. Foster, 8th Dist. Cuyahoga No. 93391,

, ¶ 23, citing State v. Clayton,

,

(1980). And the failure to object to error may be viewed as a tactical decision. State

v. Pawlak, 8th Dist. Cuyahoga No. 99555,

. Because

“‘objections to each potentially objectionable event could actually act to [a] party’s

detriment, * * * any single failure to object usually cannot be said to have been error

unless the evidence sought is so prejudicial * * * that failure to object essentially

defaults the case to the state.’” State v. Johnson,

,

,

, quoting Lundgren v. Mitchell,

(6th Cir. 2006).

Here, we found the victim’s prior consistent statements to Hatcher

and Le.S., including the statement made through her text message, were not

improper. Therefore, trial counsel was not deficient for failing to object to the

statements. Moreover, we found no plain error concerning the purported hearsay

statement contained in the victim’s medical records. Consequently, we cannot find that were it not for counsel’s purported errors, the result of the trial would have been

different.

Black’s second assignment of error is therefore overruled.

V. Manifest Weight of the Evidence

Black contends in his final assignment of error that his convictions

were against the manifest weight of the evidence. In support, he argues that there

is no physical evidence of rape and T.S.’s mother and her brothers testified that they

did not hear or see anything unusual on the date of the incident.

A manifest weight challenge questions whether the state has met its

burden of persuasion. State v. Thompkins,

,

(1997). This challenge raises a factual issue:

“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

, quoting State v. Martin,

,

(1st

Dist. 1983). The use of the word “manifest” in the standard of review “means that

we can only reverse the trier of fact if its decision is very plainly or obviously contrary

to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577, 2018-Ohio-

5031, ¶ 20. Black was convicted of rape in violation of R.C. 2907.02(A)(2), which

provides that “[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.”

R.C. 2907.01(A) defines “sexual conduct” as “the insertion, however slight, of any

part of the body * * * into the vaginal or anal opening of another.” Under

R.C. 2901.01(A)(1), “force” is “any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing.”

Black was also convicted of kidnapping in violation of

R.C. 2905.01(A)(4). This statute provides that “[n]o person, by force, threat, or

deception * * * shall remove another from the place where the other person is found

or restrain the liberty of the other person * * * [t]o engage in sexual activity * * * with

the victim against the victim’s will.” R.C. 2905.01(A)(4). “Sexual activity” is sexual

conduct or sexual contact, or both. R.C. 2907.01(C). “Sexual contact” means “any

touching of an erogenous zone of another, including without limitation the thigh,

genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose

of sexually arousing or gratifying either person.” R.C. 2907.01(B).

Here, T.S. testified that on August 4, 2016, her stepfather grabbed her

by the arm as she was walking down the stairs and pulled her into his bedroom and

raped her. She stated that Black “kept grabbing at [her],” and she repeatedly told

Black to “get off [her] and “leave [her] alone.” She further stated that Black put her

on the bed, took off her shorts and underpants as well as his shorts, and he “stuck his penis in [her] vagina.” T.S. testified that while she attempted to get away,

ultimately she was not strong enough to fight off her stepfather.

It is well settled that a rape conviction may rest solely on the victim’s

testimony, if believed, and there is no requirement that a rape victim’s testimony be

corroborated. State v. Castellon, 8th Dist. Cuyahoga No. 106813,

; State v. Magwood, 8th Dist. Cuyahoga No. 105885,

;

State v. Patterson, 8th Dist. Cuyahoga No. 100086,

; State v.

Butts, 8th Dist. Cuyahoga No. 55549,

, 4 (July 20, 1989)

(stating that a lack of physical evidence “does not require reversal since a victim’s

testimony, if believed, is sufficient to obtain and sustain a rape conviction”); State v.

Timmons, 10th Dist. Franklin Nos. 13AP-1038 and 13AP-1039,

(stating that physical or forensic evidence is not required to prove rape).

T.S.’s testimony, however, was also supported by the testimony of

other witnesses. T.S.’s stepmother, Hatcher, testified that she received a text

message from T.S. on August 5, 2016, stating that she needed to talk to Hatcher

about something “serious” that happened to her “last night.” And Hatcher testified

that when T.S.’s sister drove T.S. to her stepmother and father’s house, T.S. was

upset and “scared to talk.” Further, T.S.’s friend, Kincaid, testified that on August 7,

2016, when he and his grandmother picked T.S. up for church, she was upset and

crying and she told him “something bad” happened to her a couple of days prior.

Then on August 15, 2016, T.S.’s stepmother and father drove T.S. to the police

station where T.S. reported she had been raped by her stepfather. In light of the foregoing, and in resolving any purported conflicts in

the evidence, we cannot find the jury clearly lost its way and created such a manifest

miscarriage of justice that Black’s conviction for rape and kidnapping must be

reversed and a new trial ordered. This case is therefore not the exceptional case in

which the evidence weighs heavily against the conviction.

Black’s third assignment of error is overruled.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

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

been affirmed, any bail pending 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.

MICHELLE J. SHEEHAN, JUDGE

RAYMOND C. HEADEN, J., CONCURS; SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE CONCURRING OPINION ATTACHED

SEAN C. GALLAGHER, P.J., CONCURRING:

Although the majority addresses the argument as presented by the

parties, it is important to note that Black’s assertions are based on faulty assumptions. Black has not demonstrated that the statements to which he belatedly

objects were offered for the truth of the matter asserted under Evid.R. 801(C) — he

simply assumes that to be the case. If the statements are not hearsay, then there is

no purpose to demonstrating those statements to be considered non-hearsay under

Evid.R. 801(D)(1)(b).

Out-of-court statements are not hearsay if offered from some other

reason, such as proving the statement itself was made. Evid.R. 801 Staff Notes. All

of the disputed statements were introduced to demonstrate when or if the victim’s

initial disclosures of the rape occurred before the theft allegations arose. The

challenged statements themselves offered nothing of substantive value, only that the

victim was attempting to disclose something at or around the time of the crime. In

fact, the state carefully limited the witnesses’ discussions to the fact of the attempted

disclosures themselves without letting the witnesses divulge the substance of the

disclosure. Because Black has not demonstrated that the disputed statements fit the

definition of hearsay under division (C), we need not consider whether the

statements are considered to be non-hearsay under Evid.R. 801(D)(1)(b).

With respect to the admitted medical records, which contained a

statement regarding the allegations of sexual assault and the ensuing treatment,

Black also claims that such a statement is not admissible as a prior consistent

statement under Evid.R. 801(D)(1)(b). That argument is irrelevant in light of the

fact the state introduced the medical records under Evid.R. 803(4), which is a stand-

alone exception to the inadmissibility of hearsay when the challenged statement is made for the purposes of a medical diagnosis or treatment. Black has not asked us

to consider the procedural mechanism under which the statement was actually

admitted into evidence. This alone is dispositive. App.R. 16(A)(7). Having

concluded that the statements were admissible, there can be no finding of a deficient

performance and I otherwise agree with the majority’s disposition.