[Cite as State v. Sayles,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108524 v. :

ANTONIO SAYLES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 3, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628148-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory Paul, Assistant Prosecuting Attorney, for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, and Erika Cunliffe, Assistant Public Defender, for appellant.

KATHLEEN ANN KEOUGH, J.:

In this delayed appeal, defendant-appellant, Antonio Sayles, appeals his

convictions. For the reasons that follow, we affirm. In May 2018, Sayles was named in a 30-count indictment charging him

with multiple counts of rape, kidnapping, and gross sexual imposition; most counts

contained sexually violent predator and sexual motivation specifications. The

charges stemmed from allegations of sexual misconduct involving Sayles’s minor-

aged daughter and two stepdaughters from 2011 until 2018.

At trial, a jury considered DNA evidence and testimony from multiple

witnesses, including each of the victims, their mother, each of the victim’s social

worker, and the nurse who examined and performed the rape kits on each victim.

The jury convicted Sayles of 24 counts, and the court sentenced him to 100 years to

life in prison.

Because Sayles does not challenge on appeal the sufficiency or manifest

weight of the evidence, this court will only set forth the facts as they pertain to each

assignment of error.

I. Effective Assistance of Counsel

The Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution provide that defendants in all criminal

proceedings shall have the assistance of counsel for their defense. The United States

Supreme Court has recognized that “the right to counsel is the right to effective

assistance of counsel.” Strickland v. Washington,

,

,

(1984).

To establish ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance fell below an objective standard of reasonable performance and that he was prejudiced by that deficient performance,

such that but for counsel’s error, the result of the proceedings would have been

different. State v. Drummond,

,

,

, ¶ 205, citing

. In short, counsel’s errors must be so

serious as to render the result of the trial unreliable. State v. Jamie, 8th Dist.

Cuyahoga No. 102103,

. In evaluating a claim of ineffective

assistance of counsel, a court must be mindful that there are countless ways for an

attorney to provide effective assistance in a given case, and it must give great

deference to counsel’s performance.

.

Sayles contends in his first assignment of error that his trial counsel

failed to provide him with effective representation, thus violating his rights under

the Sixth and Fourteenth Amendments of the United States Constitution and

Article I, Section 10 of the Ohio Constitution. Sayles raises four instances where

counsel allegedly provided ineffective representation — (1) failing to provide

competent representation during the plea discussion; (2) failing to object to the

state’s request to amend the indictment after it presented its case-in-chief; (3) failing

to object to hearsay from the sexual assault nurse examination (“SANE”) nurse who

examined and interviewed the victims; and (4) failing to object to the testimony of

each of the victim’s social worker because each social worker allegedly vouched for

the victim’s credibility and provided inadmissible victim impact evidence. A. Plea Discussion

A month prior to trial, the state set forth a proposed plea agreement. It

would amend the rape offenses charged in Counts 1, 7, 9, 15, 19, 21, and 23 to first-

degree felonies by deleting the sexually violent predator specification on each count.

Deleting the specification reduced the penalty on those counts from 10-25 years to

life to a possible punishment on each count of three to 11 years in prison. The state

also offered to amend the rape offenses charged in Counts 3 and 17 to gross sexual

imposition, a felony of the third degree, punishable by one to five years in prison.

Finally, the agreement required Sayles to plead guilty to Counts 11 and 29, gross

sexual imposition, a felony of the fourth degree. In exchange for guilty pleas to those

counts as stated or amended, the state would nolle the remaining offenses.

Sayles rejected the plea, stating he wished to proceed to trial. The trial

court then engaged in a discussion with Sayles about the plea and his sentencing

exposure if he were unsuccessful at trial. The court stated that he was facing a 30-

count indictment and if he were found guilty on Count 21, rape of a person under 10

years in age, the penalty would be life without parole. Sayles stated that he

understood.

The court then explained that he was charged with four counts of rape

(Counts 1, 5, 13, and 25) that if he were found guilty, he “would be looking at the

imposition of 25 years to life imprisonment on each of those.” The court further

advised Sayles that 23 of the counts carried a possible sentence of ten years to life,

and two counts were high-tiered felonies of the third degree that carried a possible penalty of one to five years.1 The court also advised him about the imposition of

fines, mandatory postrelease control, and sexual offender classification.

The trial court then set forth the potential penalties under the plea

agreement. The court advised Sayles that pursuant to the agreement offered, the

state would amend the rape offenses charged in Counts 1, 7, 9, 15, 19, 21, and 23 that

carried to a life-term to now only carry a mandatory prison term of three years to 10

and/or 11 years. The agreement would also amend Counts 3 and 17, two first-degree

felonies, to “high-tier” third-degree felonies carrying a possible prison term of one

to five years. Finally, the trial court advised Sayles that the agreement also provided

that he plead guilty to Counts 11 and 29, felonies of the fourth degree, carrying a

possible penalty of six to 18 months.

Following these advisements, the court asked:

Mr. Sayles, have you had full opportunity to speak with your lawyer? Because this is kind of a stunning indictment here. You only need one finding of guilt on one of these life terms. They are mandatory terms. Do you understand that, sir?

Sayles responded:

Yes. I talked to him. I understand. But it’s kind of hard for me to agree to something I didn’t do.

(Tr. 9.)

1 It appears the trial court misspoke about the third-degree felonies. A review of the indictment reveals that the gross sexual imposition counts are fourth-degree felonies, as the trial court mentioned later in the plea discussion. The third-degree felonies that the trial court spoke of related to the plea agreement, not the indictment. Regardless, Sayles does not raise any argument on appeal about the sentencing exposure on these counts. Sayles rejected the plea offer, and the case proceeded to trial.

Following the close of evidence, the trial court granted the state’s motion to dismiss

Counts 27 (rape) and 28 (kidnapping). (Tr. 615-616.) The jury found Sayles not

guilty of Counts 21 (rape), 22 (kidnapping), 29 (gross sexual imposition), and 30

(kidnapping). The jury found Sayles guilty of the remaining counts, including the

sexual motivation specifications. Following the verdict, the state moved to dismiss

all sexually violent predator specifications from the indictment.

At sentencing, the parties agreed that the rape counts merged with

corresponding kidnapping counts, and the state elected that the court sentence

Sayles on the rape counts — Counts 1, 3, 5, 7, 9, 13, 15, 17, 19, 23, and 25. The court

noted that Counts 1, 3, 5, and 13 each carried a mandatory term of 25 years to life in

prison, and the remaining rape counts carried a possible punishment of three to 11

years.

Defense counsel advocated to the trial court that it did not “need to

necessarily run [Counts 1, 3, 5, and 13] consecutively because it doesn’t serve any

additional purpose.” The trial court agreed and imposed a concurrent total sentence

of 25 years to life in prison.

Subsequently, but prior to the court journalizing the sentence, the

state advised the trial court that the concurrent 25-year-to-life sentence was

contrary to law. Pursuant to R.C. 2971.03(B)(1)(c) and (E), the trial court was

required to order the minimum sentences in Counts 1, 3, 5, and 13 to be served

consecutively. Accordingly, the court should have sentenced Sayles on those counts to 100 years to life in prison. Defense counsel agreed with the correction but

requested that the trial court set aside the conviction because Sayles was not fully

advised of the possibility that if convicted, the law required consecutives sentences

on those counts. Sayles also told the court that he was unaware that the law required

mandatory consecutive sentences. The court denied vacating the convictions and

resentenced Sayles to an aggregate sentence of 100 years to life in prison.

In this assignment of error, Sayles contends that he did not receive

effective assistance of counsel during the plea discussion because counsel did not

advise him that if he were found guilty of rape as charged in Counts 1, 3, 5, and 13,

the court was required to run the minimum sentences on each count consecutively.

To establish that ineffective assistance of counsel occurred during plea

negotiations, a defendant who did not accept a plea offer must show not only that

counsel rendered flawed and deficient representation, but also that there is a

reasonable probability that (1) the defendant would have accepted the plea offer; (2)

the offer would not have been withdrawn and would have been accepted by the

court; and (3) the end result would have been more favorable to the defendant. State

v. Weakley, 8th Dist. Cuyahoga No. 105293,

.

By citing to Lafler v. Cooper,

,

,

(2012), and Weakley, Sayles insinuates that his counsel’s inaccurate

information or lack of advisement regarding his sentence exposure induced him into

rejecting the plea. In both Cooper and Weakley, however, the record clearly demonstrated that counsel’s misstatements or deficiencies induced the defendants,

who expressed a desire to accept a plea, to subsequently reject the plea deals offered.

In this case, such inducement is lacking. Nothing in the record

indicates that Sayles rejected the state’s plea offer based on counsel’s misstatements.

Rather, the record reflects that during the plea discussion, Sayles rejected the state’s

plea offer because of claims of innocence — “it’s kind of hard for me to agree to

something I didn’t do.” (Tr. 9.) Rejection of a plea offer based on protestations of

innocence undermines Sayles’s claim that he received ineffective assistance of

counsel. See State v. McKelton,

,

,

(argument of ineffective assistance of counsel during plea negotiations

undermined by evidence that defendant rejected offer to prove his innocence); and

State Burton, 8th Dist. Cuyahoga No. 100716,

(summarily

rejecting defendant’s ineffective assistance of counsel argument because the record

showed that the defendant was not interested in accepting a plea).

Moreover, by rejecting the plea agreement, Sayles was risking the

possibility of receiving a sentence of life without parole on Count 21. Although

counsel later stated during the resentencing that he and Sayles believed the evidence

would not support a conviction on that count, the record is clear that Sayles accepted

the risk and proceeded to trial, knowing a life sentence could be imposed.

Finally, Sayles rejected the plea agreement with a full understanding

that Counts 1, 3, 5, and 13 each carried a sentence of 25 years to life in prison. Even

if Sayles proceeded under the misunderstanding that Counts 1, 3, 5, and 13 allowed for concurrent sentences, the sentences still contained a life-tail. The trial court

advised Sayles that “each” of those sentences carried a life-tail; thus, inferring that

the court could impose those sentences consecutively. By rejecting the plea

agreement, Sayles was subject to a life-sentence regardless, and nothing in the

record indicates that he was concerned about his eligibility for parole. If a concern

about parole existed, he would have accepted the plea agreement because it removed

all life-tail exposure. We find disingenuous Sayles’s argument that had he known

that he could receive a sentence that amounted to a life sentence, i.e. 100 years, he

would have accepted the plea. There is nothing in the record that demonstrates that

Sayles would have accepted the plea offer had he known the consecutive nature of

the sentence if found guilty at trial. Accordingly, we find that he did not receive

ineffective assistance of counsel during the plea discussion.

B. Amendment to the Indictment

Following the state’s case-in-chief, the state moved to amend the

indictment to conform to the evidence presented. Specifically, the state moved to

amend Counts 7, 8, 22, 23, and 24 to reflect the dates of when the offenses were

alleged to have occurred based on the testimony of the victims.

In Counts 7 and 8 (rape and kidnapping), the indictment provided

that the offenses occurred between December 3, 2016 and December 2, 2017. The

state moved to amend the date to reflect that the offense occurred between

December 3, 2015 and December 2, 2016. The purpose of the amendment was “to

reflect age 12 for [the victim].” (Tr. 591.) In Count 22 (kidnapping), the indictment alleged that the offense occurred on June 1, 2012. The state moved to amend the

date to reflect that the offense occurred between January 1, 2011 through June 1,

2012. The amendment would conform with the corresponding rape offense in

Count 21 that alleged the same date range.2 In Counts 23 and 24 (rape and

kidnapping), the indictment provided that the offense occurred from January 1,

2015 to June 1, 2016. The state moved to amend the date to reflect that the offense

occurred between March 1, 2018 to April 15, 2018. Defense counsel did not

specifically object to the amendments, and the trial court granted the state’s request.

Sayles contends on appeal that his counsel was ineffective for not

objecting to the state’s motion because the amendments allowed for convictions of

offenses on evidence that the grand jury did not consider, i.e. the amendment

changed the nature of the offense.

Crim.R. 7(D) provides that a court may amend an indictment “at any

time before, during, or after a trial * * * provided no change is made in the name or

identity of the crime charged.” “A change in the name or identity of a crime charged

occurs when the offense alleged in the indictment and the offense alleged in the

amended indictment contain different elements that require independent proof.”

State v. Buchanan,

,

, ¶ 22 (8th Dist.).

Sayles relies upon this court’s decision in State v. Vitale,

,

(8th Dist. 1994), for the proposition that the change in

2The jury acquitted Sayles of Counts 21 and 22. Accordingly, any error, if at all, would be harmless by virtue of the not guilty verdict. the date range for the offenses changed the identity of the crimes. In Vitale, this

court found that the amendment was different from the evidence on which the grand

jury issued the indictment. Accordingly, we held that because it included a different

potential theft, occurring at a different address, over an expanded time period, the

amendment to the indictment was prejudicial to Vitale’s defense.

Vitale is clearly distinguishable. In this case, the amendments did not

change the name or identity of the crimes charged — they only changed the range of

dates for the offenses as testified to by the victims. In cases involving sexual

misconduct with a young child, precise times and dates of the conduct or offenses

often will not be determined. State v. Boyer, 10th Dist. Franklin No. 06AP-05,

. And unless it is detrimental to the defense, the precise time and

date of an alleged offense are ordinarily not essential elements. State v. Sellards,

,

(1985) (absent material detriment to the

preparation of a defense, the omission of specific dates and times is without

prejudice, and without constitutional consequence).

We find that the amendment was not in error, and therefore, counsel

was not ineffective for failing to object. Moreover, Sayles has not demonstrated how

the amendment prejudiced his defense. His defense strategy was that he never

engaged in any sexual contact or conduct with the victims. Unlike where a defendant

intends to use or rely on an alibi, Sayles’s defense was actual innocence. See, e.g.,

State v. Czech, 8th Dist. Cuyahoga No. 100900,

(vague time frames

may be detrimental when presenting an alibi defense). Accordingly, Sayles has not demonstrated that counsel was ineffective

by failing to object to the state’s Crim.R. 7(D) amendment during trial.

C. Failure to Object — Hearsay Testimony

Kathleen Hackett, the sexual assault nurse examination (“SANE”)

program coordinator for Rainbow Babies and Children’s Hospital and SANE nurse,

stated that she conducted the victims’ rape-kit examinations. She testified regarding

her examination and interview with each victim.

Sayles contends that counsel was ineffective for failing to object to the

“nonmedical parts” of Hackett’s testimony and for failing to request the court to

redact those portions of her report that she obtained for use during prosecution. He

claims this testimony and evidence strengthened the victims’ allegations and

provided a more clear and concise account of the allegations. Sayles, however, fails

to specifically identify what parts of her testimony or report were objectionable.

Statements made for the purposes of medical diagnosis and treatment

are a clearly defined, long-standing exception to the hearsay rules. Evid.R. 803(4)

provides an exception for “[s]tatements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms, pain, or

sensations, or the inception or general character of the cause or external source

thereof insofar as reasonably pertinent to diagnosis or treatment.” Further, in

considering cases of sexual assault, “courts have consistently found that a

description of the encounter and identification of the perpetrator are within the

scope of statements for medical treatment and diagnosis.” In re D.L., 8th Dist. Cuyahoga No. 84643,

, citing State v. Stahl, 9th Dist. Summit

No. 22261,

. However, not every statement made by a

declarant in aid of treatment is admissible under the rule: “The exception is limited

to those statements made by the patient which are reasonably pertinent to an

accurate diagnosis and should not be a conduit through which matters of no medical

significance would be admitted.” Staff Note to Evid.R. 803(4); State v. Echols, 8th

Dist. Cuyahoga No. 102504,

.

In this case, when viewing the entirety of Hackett’s testimony and

reports prepared during the examination, we find the victims’ statements were

admissible pursuant to Evid.R. 803(4) because they made them in aid of medical

diagnosis and treatment. The victims’ statements provided to Hackett allowed her

to understand where injury, if any, might be present, or explain why no injury was

visible. Each victim reported where the assaults occurred, described the nature and

duration of the assault, how and where Sayles touched them, whether and where

they experienced pain and discomfort, whether Sayles ejaculated or wore a condom,

whether the touching was under on or top of clothing, and whether they engaged in

consensual sexual relations. This information was for the purpose of medical

diagnosis and treatment to guide Hackett in her examination and determine where

potential injury may have occurred or where certain areas needed treatment.

Even if portions of the victims’ statements or Hackett’s report were

inadmissible, the error was harmless because each victim testified about each

offense as it pertained to them, and to whom and when they made their disclosures. The record reflects that counsel effectively cross-examined the victims exposing

some inconsistencies and casting doubt on the allegations. The jury was able to

assess the credibility of each victim and believe or disbelieve the victims where they

deemed it appropriate. The jury’s ability to make these credibility assessments and

segregate proof is reflected in the not guilty verdicts on certain counts in the

indictment. See, e.g., State v. Bonneau, 8th Dist. Cuyahoga No. 97565, 2012-Ohio-

3258, ¶ 22 (not guilty verdict as counts pertaining to one victim and guilty verdicts

as to another demonstrated jury was able to separate the evidence and consider

victims separately). Moreover, our review of the record demonstrates that defense

counsel effectively cross-examined Hackett about the nature of the examination and

her inability to “to detect any injuries of any type in any of the three [victims].” (Tr.

585.)

Accordingly, Sayles has failed to demonstrate that counsel was

ineffective by failing to object to portions of Hackett’s testimony.

D. Failure to Object—Vouching for Victim Credibility

Sayles contends that counsel was ineffective for failing to object to

testimony from the social workers regarding the trauma the victims suffered

because of the abuse. He summarily maintains that the social workers’ testimony

inappropriately vouched for the credibility of the victims, which amounted to

improper victim impact evidence.

“An expert [and law witness] may not testify as to the expert’s opinion

of the veracity of the statements of a child declarant." State v. Boston,

,

(1989), syllabus. Such testimony is presumptively prejudicial

and inadmissible because it “‘infringe[s] upon the role of the fact finder, who is

charged with making determinations of veracity and credibility.’”

,

quoting State v. Eastham,

,

(1988) (Brown,

J., concurring).

There is a fine line between an expert offering an opinion as to the

truth of a child’s statement and “testimony which is additional support for the truth

of the facts testified to by the child, or which assists the fact finder in assessing the

child’s veracity.” State v. Stowers,

,

(1998). Whereas offering an opinion on truthfulness is strictly prohibited,

testimony under the second category is allowed. In Stowers, the court addressed

the admissibility of expert testimony that the behavior of the victims was consistent

with behavior observed in sexually abused children. The court found that it was

admissible and did not violate Boston because the expert’s testimony provided

information to the jury that would allow it to make an “educated determination”

regarding the ultimate issues in the case. The court emphasized a distinction

“between expert testimony that a child witness is telling the truth and evidence

which bolsters a child’s credibility insofar as it supports the prosecution’s efforts to

prove that the child has been abused.”

.

In this case, each victim was referred to a separate therapist for the

purpose of receiving counseling and treatment. Each therapist, who was also a

licensed social worker, testified about the background information they received from the referring agencies. Based on the background information and their

individual interactions with the victims, all three of the social workers, like the social

worker in Stowers, stated that the behavior of the victims was consistent with

behavior observed in sexually abused children. Because the Ohio Supreme Court

has stated that this type of testimony is admissible in helping the jury and does not

vouch for witness credibility, trial counsel was not ineffective for failing to object to

the testimony. Further, at no point did any of the social workers offer an opinion

about whether the victims were telling the truth.

We also find that the social workers’ testimony did not rise to victim

impact testimony. This court has previously held that a licensed social worker’s

testimony about diagnosis and treatment is not victim impact evidence as defined

under the law. State v. Ibrahim, 8th Dist. Cuyahoga No. 102114,

.

Even if counsel were deficient in failing to object to the social workers’

testimony, Sayles has not demonstrated how he was prejudiced by the deficient

performance such that the result of the trial would have been different. Each victim

testified about the assaults and how they felt during the sexual assaults. Again, the

jury was able to assess the credibility of the victims during trial. Accordingly, we

find that Sayles was not deprived of effective assistance of counsel when his counsel

failed to object to the testimony of each social worker.

Based on the foregoing, Sayles’s first assignment of error is overruled. II. Inaccurate Information During Plea Discussion

In his second assignment of error, Sayles contends that the trial court

plainly erred by providing inaccurate information during the plea discussion about

his sentencing exposure in the event of a guilty verdict following trial. Accordingly,

he contends that his convictions should be set aside.

Notice of plain error should be with “utmost caution, under

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

State v. Long,

,

(1978), paragraph three of the

syllabus. Plain error under Crim.R. 52(B) requires a finding that, but for the error,

the outcome of the trial clearly would have been different.

at paragraph two of

the syllabus.; State v. Watson,

,

(1991) (“Plain error

does not exist unless, but for the error, the outcome * * * would have been

different.”).

We do not find any error, plain or otherwise. Without citing to any

rule or case law in support, Sayles contends that that much like in accepting a guilty

plea where the defendant must be advised of the maximum penalty involved for the

offenses, the same should be true for when a defendant rejects a guilty plea. We

disagree. Pursuant to Crim.R. 11, the maximum penalty advisement pertains to the

offenses the defendant would be pleading guilty to, not the offenses with which the

defendant was originally charged. See generally Crim.R. 11(C); State v. Rogers, 12th

Dist. Butler No. CA2019-11-194,

, quoting State v. Bishop,

,

,

(Kennedy, J., dissenting) (Crim.R. 11(C)(2)(a) “‘requires the trial court to advise the defendant of the

maximum penalty for each of the charges that the accused is resolving with the

plea.’”)

In this case, the trial court engaged in a plea discussion with Sayles

and addressed the consequences of not accepting the plea. The court advised him

regarding Counts 1, 3, 5, and 13 that “if you are found guilty you would be looking at

the imposition of twenty-five to life imprisonment on each of those.” (Tr. 6-7.)

Admittedly, the trial court did not advise Sayles that the trial court was required to

impose the minimum terms consecutively if he were found guilty. However, because

Sayles rejected the plea agreement and elected to proceed to trial, the trial court was

not required to conform its plea discussions pursuant to Crim.R. 11. There is nothing

in the rule that requires a trial court to compare the sentencing exposure under the

plea agreement to that in the indictment.

Even if there was error, Sayles has again failed in his burden to

demonstrate that he would have accepted the plea agreement. We have already

determined that Sayles did not receive ineffective assistance of counsel during the

plea discussion because Sayles failed to demonstrate that he would have accepted

the plea agreement had he known the mandatory consecutive nature of the

sentences imposed in Counts 1,3, 5, and 13. We further find that the trial court did

not commit plain error by failing to advise Sayles that if he was found guilty of

Counts 1, 3, 5, and 13, the court was required to impose the minimum terms

consecutively. Again, Sayles has failed to demonstrate that the outcome of the proceedings would have been different had he been advised that those counts

carried mandatory consecutive sentences. Without such a demonstration, this court

will not recognize that plain error occurred.

Accordingly, Sayles’s second assignment of error is overruled.

III. Inadmissible Evidence

Without citation to the record, Sayles contends in his third

assignment of error that the trial court erred in allowing the victims’ mother to

vouch for the credibility of one of the victims. He summarily contends that the

“error’s impact was harmful” because the case hinged on credibility.

Our review of the record reveals that during cross-examination,

counsel questioned mother about her younger daughter’s truthfulness. (Tr. 274.)

On redirect, the prosecutor followed up about daughter’s truthfulness and whether

her children lie. (Tr. 279-280.) She explained that they do not lie, but tell “small

fibs.” (Tr. 280.) The prosecutor then questioned: “Have they ever lied to you about

anything like, ‘I was raped by my step-dad,’ they ever lie to you about that? Is that

the sort of lie we’re dealing with here?” (Tr. at id.) Over objection, mother

responded “no.” (Tr. at id.)

A trial court has broad discretion concerning the admission of

evidence; in the absence of an abuse of discretion that materially prejudices a

defendant, a reviewing court generally will not reverse an evidentiary ruling. State

v. Humberto,

,

,

(10th

Dist.), citing State v. Issa,

,

(2001). Lay witnesses are prohibited from testifying as to another witness’s

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

,

citing State v. Kovac,

,

,

(2d Dist.). “[I]t is the fact-finder, not the so-called expert or lay witness, who bears

the burden of assessing the credibility and veracity of witnesses.” Boston,

,

.

In this case, even if we find that mother vouched for the credibility of

her daughter, violating Boston, the error was harmless. A Boston violation may be

harmless error beyond a reasonable doubt “(1) if the victim testifies and is subject to

cross-examination, (2) the state introduces substantial medical evidence of sexual

abuse, and (3) the expert or lay person's opinion testimony is cumulative to other

evidence.” State v. Djuric, 8th Dist. Cuyahoga No. 87745,

,

citing State v. Palmer, 9th Dist. Medina No. 2323-M,

(Feb. 8, 1995). Moreover, this court has implied that “Boston does not apply when

the child victim actually testifies and is subjected to cross-examination.” Djuric;

State v. Benjamin, 8th Dist. Cuyahoga No. 87364,

, ¶ 19

In this case, all three victims testified and were subject to cross-

examination. Additionally, the state introduced DNA evidence obtained from the

inner thigh area of the younger daughter — the victim whose mother allegedly

vouched for her credibility. This DNA was consistent with Sayles’s DNA profile.

Accordingly, we find that any Boston violation was harmless beyond a reasonable

doubt. Accordingly, Sayles’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 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 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.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and ANITA LASTER MAYS, J., CONCUR