[Cite as State v. Pate,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28702 : v. : Trial Court Case No. 2019-CR-1019 : SCOTT E. PATE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 28th day of May, 2021.

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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Scott E. Pate, appeals from his conviction in the

Montgomery County Court of Common Pleas after a jury found him guilty of ten counts of

rape of a minor less than ten years of age, nine counts of gross sexual imposition, four

counts of unlawful sexual conduct with a minor, and two counts of disseminating matter

harmful to juveniles. In support of his appeal, Pate argues that the trial court erred by

overruling his motion to sever offenses that were joined pursuant to Evid.R. 8(A). Pate

also argues that the trial court erred by admitting two of the victims’ video-recorded

forensic interviews into evidence under the hearsay exceptions in Evid.R. 803(4) and

Evid.R. 807(A). Pate further argues that his convictions for ten counts of rape of a minor

less than ten years of age were not supported by sufficient evidence and were against

the manifest weight of the evidence. Lastly, Pate argues that the State engaged in

prosecutorial misconduct at his trial and that the cumulative effect of all the errors at trial

warrants a reversal of his conviction. For the reasons outlined below, we find that all of

Pate’s claims lack merit, and we will therefore affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On May 1, 2019, a Montgomery County grand jury returned a 26-count

indictment charging Pate with ten counts of rape of a minor less than ten years of age in

violation of R.C. 2907.02(A)(1)(b); ten counts of gross sexual imposition (GSI) in violation

of R.C. 2907.05(A)(4), four counts of unlawful sexual conduct with a minor in violation of

R.C. 2907.04(A), and two counts of disseminating matter harmful to juveniles in violation

of R.C. 2907.31(A)(1). Each of the rape and gross sexual imposition counts included a

sexually violent predator specification under R.C. 2941.148(A). -3-

{¶ 3} The charges stemmed from allegations that Pate sexually abused four

minors, A.A.1, A.A.2, A.A.3, and E.K. The indictment alleged that the sexual abuse of

A.A.1, A.A.2, and A.A.3 occurred between March 1, 2016 and March 16, 2019. At the

time the abuse was disclosed, A.A.1 was seven years old, A.A.2 was five years old, and

A.A.3 was three years old. The indictment alleged that the sexual abuse of E.K. occurred

between January 1, 2004 and April 24, 2004. E.K. was 13 years old at the time of the

alleged abuse. The following table sets forth the charges pertaining to each of the four

victims.

Count Victim Offense Allegation

1 A.A.1 Rape < 10 Digital-vaginal penetration in back room of Pate’s residence

2 A.A.1 GSI Digital-vaginal contact in back room of Pate’s residence (same incident as Count 1)

3 A.A.1 Rape < 10 Digital-vaginal penetration in front room of Pate’s residence

4 A.A.1 GSI Digital-vaginal contact in front room of Pate’s residence (same incident as Count 3)

5 A.A.1 Rape < 10 Cunnilingus in back room of Pate’s residence

6 A.A.1 Rape < 10 Cunnilingus in Pate’s vehicle

7 A.A.1 Rape < 10 Cunnilingus in front room of Pate’s residence

8 A.A.1 Rape < 10 Fellatio in front room of Pate’s residence

9 A.A.1 GSI Penile-vaginal contact in front room of Pate’s residence

10 A.A.1 GSI Vaginal touching in Pate’s vehicle -4-

11 A.A.1 GSI Penile touching at Pate’s residence

12 A.A.1 GSI Penile touching at Pate’s residence

13 A.A.1 GSI Vaginal touching with an object in back room of Pate’s residence

14 A.A.1 Disseminating Pornographic videos shown at Pate’s residence

15 A.A.2 Rape < 10 Cunnilingus in front room of Pate’s residence

16 A.A.2 Rape < 10 Cunnilingus in back room of Pate’s residence

17 A.A.2 Rape < 10 Fellatio at Pate’s residence

18 A.A.2 Rape < 10 Fellatio at Pate’s residence

19 A.A.2 GSI Vaginal touching in front room of Pate’s residence

20 A.A.2 GSI Vaginal touching in Pate’s residence

21 A.A.2 Disseminating Pornographic videos shown at Pate’s residence

22 A.A.3 GSI Digital-vaginal contact at Pate’s residence

23 E.K. Unlawful Digital penetration Sexual Conduct

24 E.K. Unlawful Vaginal intercourse Sexual Conduct

25 E.K. Unlawful Fellatio Sexual Conduct -5-

26 E.K. Unlawful Cunnilingus Sexual Conduct

{¶ 4} Pate pled not guilty to the indicted charges and the matter ultimately

proceeded to a jury trial on the 26 charges set forth above. Pate, however, elected to

have a bench trial on the sexually violent predator specifications. Prior to those

proceedings, the trial court conducted a voir dire examination to determine whether A.A.1

and A.A.2 were competent to testify at trial. Following this examination, the trial court

determined that A.A.1, who was then eight years old, was competent to testify. The trial

court determined, however, that A.A.2, who was then six years old, was not competent to

testify. Having found that A.A.2 was not competent to testify at trial, and following an

evidentiary hearing, the trial court determined that statements A.A.2 had made to her

mother and to a forensic interviewer about the abuse were admissible hearsay under

Evid.R. 807(A).

{¶ 5} Prior to trial, Pate filed a Crim.R. 14 motion to sever the charges related to

A.A.1, A.A.2, and A.A.3 from the charges related to E.K. so that they could be tried

separately. Although Pate conceded that all the charges were properly joined pursuant

to Crim.R. 8(A), he argued that the 12 to 15-year lapse in time between the charges would

cause the jury to have an unfavorable impression of him and would prejudice him at trial.

Pate also argued that the allegations related to E.K. and the allegations related to A.A.1,

A.A.2, and A.A.3 were so dissimilar that joinder served no valid evidentiary purpose.

Pate further argued that the requested severance was appropriate because the evidence

supporting the joined offenses would not be admissible at separate trials as other-acts -6-

evidence under Evid.R. 404(B).

{¶ 6} The trial court disagreed with Pate and denied his motion to sever. In doing

so, the trial court found that the evidence supporting the joined offenses was: (1) relevant;

(2) admissible at separate trials as other-acts evidence under Evid.R. 404(B); and (3) had

a probative value that outweighed the danger of unfair prejudice. The trial court further

found that the charges and evidence were separate and distinct and that there was only

a “scant likelihood of jury confusion.” Order Denying Motion to Sever (Sep. 30, 2019).

{¶ 7} The State called several witnesses at Pate’s jury trial. The witnesses

included A.A.1; E.K.; the mother of A.A.1, A.A.2, and A.A.3; the law enforcement officers

and experts who investigated the allegations of sexual abuse; and the medical and mental

health service providers who examined and treated A.A.1 and A.A.2. Pate also called

four relatives as defense witnesses. Pate called his wife, April Pate; his 19-year-old

daughter, Belinda Pate; his 23-year-old son, Jonathan Pate; and his 25-year-old stepson,

Ty Shyers. The following information was elicited at trial through the witnesses’

testimony and other evidence.

Pate’s Relationship to A.A.1, A.A.2, and A.A.3

{¶ 8} Pate’s wife, April, was close friends with the maternal grandmother of A.A.1,

A.A.2, and A.A.3. When the maternal grandmother passed away in 2012, April became

very close to A.A.1, A.A.2 and A.A.3’s mother (“Mother”). April and Mother became so

close that April was present in the delivery room when A.A.2 and A.A.3 were born.

Mother and her family spent a lot of time at the Pates’ residence for cookouts, birthday

celebrations, and holiday gatherings. Over time, April stepped into the role as -7-

grandmother to A.A.1, A.A.2, and A.A.3. The three girls referred to April as “Mammaw”

and to Pate as “Pawpaw.”

{¶ 9} Beginning in 2016, April and Pate would babysit A.A.1, A.A.2, and A.A.3 free

of charge. At 2:45 p.m. on Monday through Friday, Mother would drop off the three girls

at the Pates’ residence in Miamisburg, Montgomery County, Ohio. The girls would stay

at the Pates’ residence until their father (“Father”) picked them up sometime between

5 p.m. and 8 p.m. Pate, who was unemployed, was oftentimes the only person at home

when Mother dropped off the girls, and he would often babysit the girls when no one else

was at home. Pate also regularly picked up A.A.1 from elementary school during the

school year.

{¶ 10} In addition to babysitting, the Pates allowed A.A.1 and A.A.2 to each spend

one night of the week at their residence. A.A.1 and A.A.2 would rarely spend the night

at the same time. A.A.3, who was still very young, never spent the night with the Pates.

When A.A.1 or A.A.2 would spend the night, the child would either sleep in the bedroom

belonging to Pate’s daughter, Belinda, or on the couch in the living room.

A.A.1’s and A.A.2’s Disclosure of Abuse and the Subsequent Investigation

{¶ 11} On Saturday March 16, 2019, Mother was at home with A.A.1, A.A.2, and

A.A.3 while Father was out getting maintenance performed on their vehicle. As Mother

was finishing cleaning her bedroom, five-year-old A.A.2 came into the room and looked

at a license plate hanging on their wall that had a silhouette of a naked woman on it.

A.A.2 pointed to silhouette and angrily told her Mother that: “Pawpaw needed to tell the

truth.” Trial Trans. Vol. III, p. 542. When Mother asked A.A.2 what she was talking -8-

about, A.A.2 became dismissive. Mother, however, kept asking A.A.2 what she was

talking about, and A.A.2 eventually told Mother that: “Pawpaw’s trying to have sex with

me and my * * * sisters.”

Mother had never heard A.A.2 use the word “sex” before

and did not ask A.A.2 what she thought the word meant. Mother instead asked how long

Pate had been trying to have sex with her and her sisters. A.A.2 responded “for months,”

and then told Mother to ask A.A.1 about the abuse. Id. at 542-543.

{¶ 12} Mother then had A.A.2 leave the room and called seven-year-old A.A.1 into

the room to speak with her privately. During this conversation, Mother asked A.A.1 if

Pate had been touching her, to which A.A.1 responded “Yeah.” Id. at 544. Mother did

not elicit any more information from A.A.1 or A.A.2 until Father returned home, at which

time Mother and Father spoke with A.A.1 alone. As part of that conversation, A.A.1 told

Mother and Father that Pate was “licking on her.” Id. at 546.

{¶ 13} At trial, Mother could not remember what else A.A.1 had told her during their

conversation. However, Mother did recall reporting A.A.1’s and A.A.2’s allegations to

the Miamisburg Police Department the following day, Sunday March 17, 2019, and

providing the police with a written statement. Mother’s written statement, which was

admitted into evidence, described the circumstances surrounding A.A.2’s disclosure and

the information that Mother subsequently learned from speaking with A.A.1. Mother

wrote in the statement that A.A.1 told her that Pate “had her go to their back room and

touches on her privates when nobody is there” and “has rub[b]ed on her down there.”

State’s Exhibit 1.

{¶ 14} After Mother completed her written statement, the investigating officer

instructed Mother to take the girls to the hospital to be examined. Once at the hospital, -9-

the sexual assault nurse examiner (“SANE nurse”) examined A.A.1 and A.A.2. The

examination did not uncover any visible, physical injuries to either girl. At trial, the SANE

nurse testified that it is normal not to see any injuries because vaginal tissue is very pliant

and heals quickly.

{¶ 15} The SANE nurse also performed rape-kit swabs on A.A.1’s and A.A.2’s

mouths, fingernails, genitalia, buttocks, and the areas around their anuses. The swabs

were then tested by a DNA forensic expert from the Miami Valley Regional Crime Lab.

The expert testified that the test results did not uncover any male DNA or semen. The

expert also testified that the results did not surprise her since it was reported that A.A.1.

and A.A.2 had bathed and changed their clothing prior to the swabs being taken.

{¶ 16} The matter was thereafter referred to CARE House, which is an advocacy

center for abused and neglected children in Montgomery County. A social worker for

CARE House, Jennifer Knisley, conducted forensic interviews with A.A.1 and A.A.2 three

days after they disclosed the abuse to Mother and Father. 1 During the forensic

interviews, A.A.1 and A.A.2 made several additional disclosures. Among the disclosures

were that Pate had touched A.A.1’s and A.A.2’s “privates” with his fingers going in circles,

licked their privates, and put his “thing” in their mouths. State’s Exhibit 5(A). A.A.1 also

claimed that when Pate was changing A.A.3’s diaper, she saw Pate touch A.A.3 with his

fingers the same way that he had touched her. Id. A.A.1 further claimed that Pate

touched her private with a blue “thing that you turn on” and “it starts squiggling around.”

Id. A.A.1 and A.A.2 both indicated that Pate showed them videos on his cell phone

1 Knisley attempted to conduct an interview with A.A.3, but A.A.3 was too young and could not communicate. -10-

depicting females performing oral sex on males, and that Pate made them do what was

shown in the videos. Id.

{¶ 17} Following the CARE House interviews, a search warrant was executed at

Pate’s residence. During the search, officers collected Pate’s cell phone and a blue

vibrator located in a filing cabinet in Pate’s bedroom. When questioned by the

investigating detective, Pate denied having any kind of vibrators in his home. After the

detective informed Pate that a blue vibrator was found in his filing cabinet, Pate indicated

that it probably belonged to his wife, April. State’s Exhibit 16(A). During a subsequent

recorded jail call with April, Pate referenced the vibrator with a sense of familiarity, as

Pate told April that the officers had found “Mr. Blue.” State’s Exhibit 17; Trans. Vol. V, p.

1005.

{¶ 18} With regard to pornography, Pate initially told the investigating detective that

he never watched pornographic videos on his cell phone. Pate maintained that he only

visited a website called “Bootyville,” which he claimed showed no sexual acts, just women

wearing G-strings. State’s Exhibit 16(A). However, when the detective asked to search

Pate’s cell phone, Pate began to change his story and indicated that there was sexual

content on his cell phone that his friends had sent him.

{¶ 19} Pate also told the detective that he never showed A.A.1 or A.A.2

pornographic videos. However, as the interview progressed, Pate told the detective that

the girls possibly saw pornographic videos on his cell phone by accident while “walking

up” on him. State’s Exhibit 16(A). Pate claimed that when he saw the girls looking at

the video he would turn off his phone.

{¶ 20} During the course of the investigation, a mobile device examiner used -11-

extraction software to extract the data on Pate’s cell phone. The data extracted included

a website search history showing that Pate had searched and visited several active

websites on pornhub.com as recently as March 2019. The names of the websites that

Pate visited included, but were not limited to: “Exxxtra Small Teens Porn Videos”; “Teen

Porn Videos: Free College Teen Porn Sex Movies”; “Teen Virgin First Time Sex Porn

Videos”; and “Free Midget Teen Girl Porn Videos.” State’s Exhibit 13.

A.A.1’s Allegations of Abuse

{¶ 21} A.A.1 testified at trial that Pate had licked her private on the skin while she

was in the front room and back room of Pate’s house. Trial Trans. Vol. IV, p. 635-648.

A.A.1 also testified that Pate would lick her private in his truck and van when he would

pick her up from school. Id. at 648-651. A.A.1 additionally testified that she observed

Pate lick A.A.2’s private while they were in the front and back room of Pate’s house. Id.

at 666-668. A.A.1 also testified that Pate would rub on her private with two fingers going

in circles while they were in Pate’s living room, back room, van, and truck. Id. at 653-

655. A.A.1 further testified that Pate would make his private touch her bottom on the

skin while she was bending over the arm of a chair in the living room with her pants off.

Id. at 642-644.

{¶ 22} A.A.1 additionally testified that Pate would put a “blue squiggly thing” that

made a buzzing sound on her private. Id. at 656-657. A.A.1 testified that Pate would

also make her touch his private with “the blue squiggly thing” while in the front room and

back room of his house and in his van. Id. at 662. A.A.1 testified that Pate kept “the

blue squiggly thing” in his drawer in the back room. Id. at 655-656. When asked to -12-

identify a picture of the blue vibrator that was found at Pate’s residence, A.A.1 did not

recognize it as the one that Pate had used on her. A.A.1 testified that the one used on

her was round with no bumps on it. Id. at 674. Pate’s wife, April, later testified that six

or seven years ago she had a silver egg or oval shaped vibrator called “bullet.” Trial

Trans. Vol. VI, p. 1145 and 1165-1166.

{¶ 23} A.A.1 further testified that Pate would make her put her mouth on his private

while they were in the living room and back room of his house. Trial Trans. Vol. IV, p.

659-661. A.A.1 also testified that Pate instructed her on how to do this by showing her

a video on his cell phone. Id. A.A.1 testified that the video showed “girls sucking on the

boys’ things.” Id. at 659 and 661. A.A.1 further testified that she saw Pate move his

fingers in circles on A.A.3’s private spot when he was changing her diaper. Id. at 663-

664.

Pate’s Relationship to E.K. and E.K.’s Disclosure of Abuse

{¶ 24} Pate’s wife, April, is E.K.’s aunt, as April’s brother is E.K.’s father. E.K.,

therefore, refers to Pate as her uncle. Between January and April 2004, E.K.’s mother

resided at Orchard Hill Apartments in Miamisburg, Ohio. During this time, E.K., who was

then 13 years old, would go between living with her mother and living with the Pates who

also resided at the Orchard Hill Apartments. E.K. would stay with the Pates for two

weeks at a time.

{¶ 25} On April 23, 2004, E.K. told her stepfather’s sister, Janet Russell, that Pate

sexually abused her. After Russell discussed the matter with E.K.’s mother, who was

skeptical of E.K.’s allegations, Russell called the police. Officer Russell Green of the -13-

Miamisburg Police Department responded to the call and obtained written statements

from Russell and E.K. Although E.K.’s writing was somewhat illegible and difficult to

discern, E.K. indicated at trial that her 2004 written statement described an incident in

which Pate sexually abused her in his bedroom. A legible portion of E.K.’s written

statement indicated that while she was living with Pate, he asked her if she wanted to do

a “69 with him,” and that she said “no.” State’s Exhibit 6. The statement also said that

E.K. “got in the bed with him” and Pate “stuck it in [her]” and said “I love you.” Id.

Russell’s written statement said that E.K. told her that Pate “stuck it in me a little” and that

he “touched her in [private] areas and molested her, but said she was still a virgin.”

State’s Exhibit 55. Although Officer Green reported the matter to his supervisor, for

unknown reasons there was no further investigation into the matter.

{¶ 26} Shortly after reporting the incident, E.K. moved to Georgia to live with her

grandmother. Approximately three or four years later, E.K. returned to Miamisburg, Ohio

to live with her mother. After living with her mother, E.K. lived with a couple of girlfriends

for two or three years until she met her now ex-wife. E.K. and her ex-wife lived in

Kentucky for four years before they got divorced. Following the divorce, E.K. remained

in Kentucky for three years until she moved back to Ohio due to financial hardship.

Because she had nowhere to go, E.K. called her aunt, April, in 2018, to see if she could

stay with her. April, who then lived at the Pates’ current residence in Miamisburg, agreed

to let E.K. live with her, Pate, and their daughter Belinda.

{¶ 27} Between 2018 and 2019, E.K. went back and forth between staying at the

Pates’ residence and a hotel room. While staying with the Pates, E.K. slept on a cot in

the living room. E.K. felt awkward living with the Pates given what had happened -14-

between her and Pate in 2004. E.K., however, kept to herself and did not interact much

with Pate. E.K. testified that on December 15, 2018, Pate had sent her a text message

while they were both at the Pates’ residence that asked her if she wanted “to come back

here show me tit[t]ies.” Trial Trans. Vol. V, p. 846-847; State’s Exhibit 7. E.K. did not

respond to Pate’s text message.

{¶ 28} Shortly thereafter, on January 24, 2019, E.K. was staying in a hotel room

and was supposed to be picked up by Pate after she checked out. E.K. testified that

before Pate picked her up, he sent her a text message that stated: “When I pick you up *

* * can get some of that before you check out[?]” State’s Exhibit 7. When E.K. texted

back “some of what[?]” Pate responded: “W[h]at I always want[.] What do you say been

a while[.] If so I’ll take a shower and bring a jo[i]nt[.]” Id. E.K. testified that “what [Pate]

always wants is pussy.” Trial Trans. Vol. V, p. 849-850. E.K. testified that she declined

Pate’s offer by sending him a message saying that she was on her “monthly.” Id. at 850;

State’s Exhibit 7. E.K. testified that by “monthly” she meant her “period” and that she

was not really on her period. Id. at 850-851. E.K. testified that she lied about being on

her period because it sickened her to think about having intercourse with Pate. Id. at

851.

{¶ 29} After learning about A.A.1’s and A.A.2’s disclosures of abuse, E.K. spoke

to the investigating detective about certain interactions she observed between Pate and

the girls that made her uncomfortable. E.K. also spoke to the detective about the abuse

she suffered at the hands of Pate when she was a child. On March 29, 2019, E.K. wrote

a statement discussing how Pate abused her. See State’s Exhibit 8. Two weeks after

meeting with the detective, E.K. permanently moved out of the Pates’ residence. -15-

E.K.’s Allegations of Abuse

{¶ 30} E.K. testified at trial regarding the abuse she suffered in 2004. E.K.

testified that Pate took her upstairs to his bedroom to play with his “magic cards” and

locked the door behind them while she and Pate were alone at his residence. Trial

Trans. Vol. V, p. 821. E.K. testified that Pate started to get undressed and played a video

on the television at the foot of his bed to help get him aroused. Id. at 822. E.K. testified

that Pate helped her to get undressed and began stroking his penis and told her he had

to “wake up his little friend.” Id. at 823. E.K. testified that Pate then started rubbing her

vagina and licked his fingers afterwards. Id. E.K. testified that Pate then pulled her to

the edge of his bed and stuck his penis inside her vagina. Id. E.K. testified that the

incident eventually ended by Pate pulling out his penis and masturbating until he

ejaculated. Id. at 824.

{¶ 31} E.K. testified that whenever Pate had intercourse with her, he would first

perform cunnilingus on her. Id. at 827. E.K. also testified that when he abused her in

his bedroom, Pate always had the television on showing videos of people having

intercourse and oral sex. Id. at 829. E.K. recalled that Pate instructed her on how to

perform fellatio by showing her how to put her tongue on the back of his penis in order to

apply pressure to it. Id. E.K. also testified that there was another incident in which Pate

stuck his fingers inside her vagina while she was sitting in the front-passenger seat of his

vehicle while they were coming back from the store. Id. at 825-826. E.K. testified that

Pate told her that if she told her mother about the abuse she would get taken away and

never see her mother again. Id. at 830. -16-

Verdict and Sentence

{¶ 32} After considering all the testimony and evidence, the jury found Pate guilty

of 25 of the 26 counts set forth in the indictment, the lone exception being the single count

of gross sexual imposition involving A.A.3. The trial court also found Pate guilty of all the

sexually violent predator specifications. At sentencing, the trial court merged several of

the counts and ordered all of the counts to be served consecutively for a total, aggregate

sentence of ten terms of life in prison without the possibility of parole with an additional

definite term of 58 years to life in prison. The trial court also found that Pate was a Tier

III sex offender, a child victim offender, and a sexual predator who was subject to

registration, reporting, and verification requirements under both Meghan’s Law and the

Adam Walsh Act. Pate now appeals from his convictions, raising five assignments of

error for review.

First Assignment of Error

{¶ 33} Under his first assignment of error, Pate contends that the trial court erred

by failing to grant his motion to sever the charged offenses that pertained to E.K. from the

charged offenses that pertained to A.A.1, A.A.2, and A.A.3., so that the offenses could be

tried separately. We disagree.

Joinder of Offenses

{¶ 34} Crim.R. 8(A) provides, in relevant part, that: “Two or more offenses may be

charged in the same indictment, information or complaint in a separate count for each -17-

offense if the offenses charged * * * are of the same or similar character[.]” Crim.R 8(A)

also allows for the joinder of offenses that “are based on two or more acts or transactions

connected together or constituting parts of a common scheme or plan, or are part of a

course of criminal conduct.” Permitting joinder “ ‘conserves resources by avoiding

duplication inherent in multiple trials and minimizes the possibility of incongruous results

that can occur in successive trials before different juries.’ ” State v. Ford,

,

,

, ¶ 103, quoting State v. Hamblin,

,

(1988).

{¶ 35} “ ‘Notwithstanding the policy in favor of joinder,’ Crim.R. 14 permits a

defendant to request severance of the counts in an indictment ‘on the grounds that he or

she is prejudiced by the joinder of multiple offenses.’ ” Id. at ¶ 104, quoting State v.

LaMar,

,

,

. “The defendant ‘has

the burden of furnishing the trial court with sufficient information so that it can weigh the

considerations favoring joinder against the defendant’s right to a fair trial.’ ”

quoting

State v. Torres,

,

(1981). The State, however,

can overcome a defendant’s claim of prejudicial joinder in two ways.

“The first way

is by satisfying the ‘other acts’ test.” (Citation omitted.) LaMar at ¶ 50. That is, “[i]f in

separate trials the state could introduce evidence of the joined offenses as ‘other acts’

under Evid.R. 404(B), a defendant cannot claim prejudice from the joinder.” (Citations

omitted.) Id. “The state may also negate a claim of prejudice by satisfying the less

stringent ‘joinder test,’ which requires a showing ‘that evidence of each crime joined at

trial is simple and direct.’ ” Id., quoting State v. Lott,

,

(1990) and

. -18-

{¶ 36} In order to prevail on a claim that the trial court erred in denying a motion to

sever, the defendant “ ‘must affirmatively demonstrate (1) that his rights were prejudiced,

(2) that at the time of the motion to sever he provided the trial court with sufficient

information so that it could weigh the considerations favoring joinder against the

defendant’s right to a fair trial, and (3) that given the information provided to the court, it

abused its discretion in refusing to separate the charges for trial.’ ” Ford at ¶ 106, quoting

State v. Schaim,

,

(1992). A trial court’s ruling on

a Crim.R. 14 motion is therefore reviewed for an abuse of discretion.

citing State v.

Hand,

,

,

, ¶ 166. “A trial court abuses

its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

(Citation omitted.) State v. Darmond,

,

,

. An abuse of discretion most often involves an unreasonable decision that is

not supported by a sound reasoning process. AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp.,

,

(1990).

{¶ 37} As noted above, Pate argues that the trial court abused its discretion when

it denied his motion to sever the charged offenses that pertained to E.K. from the charged

offenses that pertained to A.A.1, A.A.2, and A.A.3. In support of the motion, Pate argued

that joining these offenses would prejudice him because the 12 to 15-year time span

between the allegations would create an unfavorable impression of him in the mind of the

jurors. Pate also argued that the allegations pertaining to E.K. were so dissimilar from

the allegations pertaining to A.A.1, A.A.2, and A.A.3, that joinder served no valid

evidentiary purpose. Pate further argued that the State would not be permitted to -19-

introduce evidence of the joined offenses in separate trials as other-acts evidence under

Evid.R. 404(B). The trial court disagreed with Pate’s arguments and denied the motion

to sever. For the following reasons, we do not find that the trial court’s decision was an

abuse of discretion.

Evid.R. 404(B) Other-Acts Evidence

{¶ 38} As previously noted, the State can overcome a defendant’s claim of

prejudicial joinder by showing that evidence of the joined offenses would be admissible

at separate trials as other-acts evidence under Evid.R. 404(B). Ford at ¶ 104; Lamar at

¶ 50. Evid.R. 404(B) provides, in relevant part, that:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.

{¶ 39} Therefore, under Evid.R. 404(B), “evidence of other crimes, wrongs, or acts

may be admissible for any purpose material to the issue of guilt or innocence as long as

it is not being introduced for the purpose of showing the accused’s propensity to commit

bad acts.” State v. Boles,

,

,

(2d Dist.). In other words, “evidence of other acts is admissible when the evidence is

probative of a separate, nonpropensity-based issue.” State v. Hartman,

,

,

.

{¶ 40} R.C. 2945.59 similarly provides that: -20-

In any criminal case in which the defendant’s motive or intent, the

absence of mistake or accident on his part, or the defendant’s scheme, plan,

or system in doing an act is material, any acts of the defendant which tend

to show his motive or intent, the absence of mistake or accident on his part,

or the defendant’s scheme, plan, or system in doing the act in question may

be proved, whether they are contemporaneous with or prior or subsequent

thereto, notwithstanding that such proof may show or tend to show the

commission of another crime by the defendant.

{¶ 41} Like Evid.R. 404(B), R.C. 2945.59 “preclude[s] the admission of evidence

of other crimes, wrongs, or acts offered to prove the character of an accused in order to

show that the accused acted in conformity therewith, but it does not preclude admission

of that evidence for other purposes, e.g., to show proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” State v.

Williams,

,

,

.

{¶ 42} In Williams, the Supreme Court of Ohio “set forth a three-part analysis for

determining the admissibility of other-acts evidence: to be admissible, (1) the evidence

must be relevant, Evid.R. 401, (2) the evidence cannot be presented to prove a person’s

character to show conduct in conformity therewith but must instead be presented for a

legitimate other purpose, Evid.R. 404(B), and (3) the probative value of the evidence

cannot be substantially outweighed by the danger of unfair prejudice, Evid.R. 403.” State

v. Graham, Ohio Slip Opinion No.

, __ N.E.3d __ ¶ 72. “ ‘The

admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a question of law.’ ”

quoting

. “The court is precluded from admitting improper character -21-

evidence under Evid.R. 404(B), but it has discretion to allow other-acts evidence that is

admissible for a permissible purpose.” (Citations omitted.)

{¶ 43} In denying Pate’s motion to sever, the trial court applied the three-part test

in Williams and found that Williams was factually similar to the instant case. Like Pate,

the defendant in Williams was convicted of several counts of rape, gross sexual

imposition, and unlawful sexual conduct with a minor.

. The convicted

offenses in Williams stemmed from the defendant sexually abusing J.H., a 14-year old

boy who the defendant mentored at church. Id. at ¶ 3. Over objection, the trial court in

Williams permitted the State to admit other-acts evidence from a witness who testified

that the defendant had similarly abused him 10 years earlier when he was 16 years old.

Id. at ¶ 5-8. The State offered the witness’s testimony to show that the defendant had a

common plan or scheme, a distinct pattern of sexual conduct, and the intent to achieve

sexual gratification with teenage males. Id. at ¶ 5.

{¶ 44} On appeal, the Eighth District Court of Appeals held that the witness’s

testimony in Williams was inadmissible other acts evidence under Evid.R. 404(B). Id. at

¶ 10. Relying on State v. Curry,

,

(1975), the Eighth

District determined that other-acts evidence offered to show a scheme, plan, or system is

inadmissible unless it shows the background of the alleged crime or proves the identity

of the accused.

The Eighth District therefore held that Curry precluded the

admission of evidence of the defendant’s prior sexual relationship with a different minor,

because the sexual acts of that relationship had been “chronologically and factually

separate occurrences” and the identity of the accused was not an issue at trial. Id. at

¶ 1. The Supreme Court of Ohio, however, disagreed and reversed the Eighth District’s -22-

decision. Id. at ¶ 2.

{¶ 45} In reversing Williams, the Supreme Court explained that evidence of other

crimes, wrongs, or acts of an accused may be admissible to prove intent or plan, even if

the identity of an accused or the immediate background of a crime is not at issue. Id. at

¶ 2. The Supreme Court held that evidence of Williams’s sexual relations with another

teenage boy on previous occasions was relevant to prove that the defendant had a plan

to target vulnerable teenage boys, to mentor them, and to groom them for sexual activity

with the intent of sexual gratification. Id. at ¶ 22. Instead of simply showing propensity,

the Supreme Court found that “[t]he state offered the testimony of [the witness] to

demonstrate the motive, preparation, and plan of the accused to target teenage males

who had no father figure and to gain their trust and confidence for the purpose of grooming

them for sexual activity with the intent to be sexually gratified.” Id. at ¶ 21.

{¶ 46} The Supreme Court also noted that the witness’s testimony “rebutted the

suggestion offered by the defense during opening statements that J.H. had falsely

accused Williams of abuse with the hope of getting out of trouble at school and the

suggestion that Williams was sexually attracted to women.” Id. at ¶ 22. The Supreme

Court additionally found that the witness’s testimony indicating “that Williams received

‘some type of sexual gratification’ also [was] relevant to show that Williams’s intent was

sexual gratification.” (Citation omitted.) Id. Therefore, having found that the witness’s

testimony was relevant, probative of something other than propensity, and not unfairly

prejudicial, the Supreme Court in Williams reinstated the judgment of the trial court. Id.

at ¶ 21-25.

{¶ 47} Relying on Williams, the trial court in this case concluded that if the -23-

allegations concerning E.K. were tried separately from the allegations concerning A.A.1,

A.A.2, and A.A.3, the evidence supporting their respective allegations would be

admissible as other-acts evidence under Evid.R. 404(B). Using the three-part test in

Williams, the trial court found that: (1) the evidence supporting the charges relating to

E.K. was relevant to the charges relating to A.A.1, A.A.2, and A.A.3, and vice versa; (2)

the evidence supporting the charges was probative of non-propensity based issues, i.e.,

Pate’s motive, preparation, plan, lack of mistake or accident, scheme, or pattern of

conduct; and (3) the probative value of the evidence was not outweighed by the danger

of unfair prejudice.

{¶ 48} Pate challenges the trial court’s decision on this matter based on the

Supreme Court of Ohio’s recent decision in Hartman,

, 2020-Ohio-

4440,

. In Hartman, the defendant was accused of raping an adult female

acquaintance in her hotel room after they had spent the evening out with a group of

friends. Id. at ¶ 1. In order to counter Hartman’s claim that the sexual encounter with

the rape victim was consensual, the State presented evidence establishing that Hartman

had sexually abused his stepdaughter when she was a child. Id. at ¶ 12. Following trial,

Hartman was found guilty of rape and appealed his conviction. Id. at ¶ 16. On appeal,

the Eighth District Court of Appeals reversed Hartman’s convictions on grounds that the

evidence purporting to show that he sexually abused his stepdaughter was inadmissible

other-acts evidence under Evid.R. 404(B). Id. at ¶ 17. The Supreme Court of Ohio

agreed with the Eighth District and Hartman and held that the evidence at issue

“constituted improper propensity evidence, and the trial court erred in admitting it.” Id. at

¶ 64. -24-

{¶ 49} In reaching its decision in Hartman, the Supreme Court discussed the

exceptions listed in Evid.R. 404(B) in great detail. With regard to motive, the Supreme

Court explained that: “Motive evidence establishes that the accused had a specific reason

to commit a crime.” Id. at ¶ 48. The Supreme Court found that other-acts evidence is

not admissible for purposes of establishing motive in rape cases when the evidence does

not provide any motive beyond that which can be inferred from the commission of the

offenses itself, i.e., sexual gratification. Id. at ¶ 49-50. For this reason, the motive

exception would not apply in the instant case.

{¶ 50} When discussing the “common scheme or plan” exception in Evid.R.

404(B), the Supreme Court in Hartman distinguished its decision in Williams and stated

the following:

Here, the evidence plainly does not fit into the common

understanding of plan evidence. Hartman’s alleged assault of his

stepdaughter was not part of a larger scheme involving the rape of E.W.

Nonetheless, the state contends that the evidence was admissible as a

result of our decision in Williams,

,

,

.

In Williams, we considered whether other-acts evidence tending to

show a plan may be admitted when the identity of the assailant is not at

issue. Although we had previously indicated that such evidence will most

often be relevant to illustrate the immediate background of the offense or

identify the perpetrator, see Curry,

,

, we

confirmed in Williams that plan evidence is not necessarily limited to those -25-

scenarios and may be admitted for other purposes,

.

While the other-acts evidence in Williams tended to show that

the defendant, who had been charged with the rape of a 14-year-old

boy, had a pattern of grooming teenage boys to take advantage of

them sexually, that fact alone is not what overcame the propensity bar.

Rather, the result in Williams turned on the state’s use of the other-

acts evidence for the purpose of refuting the defendant’s claims that

he was not sexually attracted to teenage boys and establishing that

the defendant had acted with the specific intent of achieving sexual

gratification. Id. at ¶ 22, 25.

There may be instances in which seemingly unrelated but highly

similar crimes could be evidence of a common scheme to commit the

charged crime—perhaps, for instance, a string of robberies occurring close

in time and location. We stress, however, that plan evidence should show

that the crime being charged and the other acts are part of the same grand

design by the defendant. Otherwise, proof that the accused has committed

similar crimes is no different than proof that the accused has a propensity

for committing that type of crime. The takeaway for the jury becomes, “The

accused did it once recently; therefore, the accused did it again.”

Imwinkelried, Using a Contextual Construction to Resolve the Dispute over

the Meaning of the Term “Plan” in Federal Rule of Evidence 404(b), 43

U.Kan.L.Rev. 1005, 1012 (1995).

Here, Hartman’s molestation of his stepdaughter four years prior was -26-

not linked to any overarching plan to commit rape against E.W. The

incidents are wholly distinct, and unlike the common-scheme evidence

demonstrated in Williams,

,

,

, the other-acts evidence in this case contains few similarities

to the crimes charged. Thus, the evidence was not relevant to show a

common scheme or plan.

(Emphasis added.) Hartman,

,

,

.

{¶ 51} The Supreme Court in Hartman also discussed the absence of mistake and

intent exceptions in Evid.R. 404(B) and stated the following:

Other-acts evidence is admissible to negate a defendant’s claim of

mistake or accident with respect to the commission of the alleged crime;

such evidence tends “[t]o show, by similar acts or incidents, that the act in

question was not performed inadvertently, accidentally, involuntarily, or

without guilty knowledge.” McCormick, Evidence, Section 190, at 804 (4th

Ed. 1994). In the criminal context, there are generally two ways in which

the accused may raise a claim of accident. Imwinkelried, 51 Ohio St.L.J.

at 593. The first involves whether a criminal act occurred at all. * * *

The second scenario implicates the intent of the accused. The

question here is not whether the act occurred but whether the defendant

acted with a criminal intent. * * *

***

There is a thin line between the permissible use of other-acts -27-

evidence to show intent and the impermissible use to show propensity.

Allowing other-acts evidence to prove the defendant’s state of mind “flirt[s]

dangerously with eviscerating the character evidence prohibition”

altogether. Leonard at Section 7.4. * * *

For this reason, courts should use caution when evaluating whether

to admit other-acts evidence for the purpose of showing intent or absence

of mistake. To determine whether other-acts evidence is genuinely

probative of the intent of the accused to commit the charged crime, rather

than merely the accused’s propensity to commit similar crimes, the question

is whether, “under the circumstances, the detailed facts of the charged and

uncharged offenses strongly suggest that an innocent explanation is

implausible.” (Emphasis sic.)

at Section 7.5.2. Or to put it another

way, the other-acts evidence “must be so related to the crime charged in

time or circumstances that evidence of the other acts is significantly useful

in showing the defendant’s intent in connection with the crime charged.” 1

Wharton’s Criminal Evidence at Section 4:31.

(Emphasis added.)

.

{¶ 52} With the foregoing principles in mind, we find that the evidence supporting

the joined offenses in this case was more similar to the evidence in Williams than

Hartman. We reach this conclusion because the similarities between the abuse alleged

by A.A.1, A.A.2, and E.K. were not only probative of Pate’s common scheme or pattern

of sexually abusing young girls who were entrusted into his care, but it was also probative

of absence of mistake. Specifically, E.K.’s testimony that Pate played pornographic -28-

videos when he sexually abused her in 2004 tended to refute Pate’s claim that A.A.1 and

A.A.2 accidently saw pornographic videos on his cell phone. E.K.’s testimony that Pate

played pornographic videos showing people having intercourse and oral sex when he

abused her and also instructed her on how to perform fellatio was similar to A.A.1’s

testimony that Pate showed her how to perform fellatio by showing her videos of “girls

sucking on boys’ things.” Trial Trans. Vol. IV, p. 659-661. E.K.’s testimony was likewise

similar to A.A.2’s allegation in her forensic interview that Pate would show her videos of

adults engaging in oral sex and would make her do the things shown in the videos. The

similarities between these allegations indicated that Pate’s actions were not performed

innocently or by accident. Therefore, we find that the evidence of the joined offenses

was relevant and admissible for a reason other than propensity.

{¶ 53} We further find that the probative value of the other-acts evidence was not

outweighed by the danger of unfair prejudice. The other-acts evidence was greatly

probative in that it corroborated the victims’ allegations of abuse. This is especially

important in this case given that A.A.1 and A.A.2 were very young and thus more

susceptible to attacks on their credibility and reliability.

{¶ 54} We also note that the Supreme Court of Ohio has recognized that when a

witness is a material witness in two separate cases there is no prejudice in trying the

cases together. State v. Gordon,

,

,

. A material witness is ‘[a] witness who can testify about matters having some logical

connection with the consequential facts, esp. if few others, if any, know about those

matters.’ ”

quoting Black’s Law Dictionary 1839 (10th Ed. 2014).

{¶ 55} In this case, E.K. was a material witness in that her testimony not only -29-

concerned her allegations of abuse, but A.A.1’s and A.A.2’s allegations as well.

Specifically, E.K. testified that when A.A.1 and A.A.2 were around Pate’s computer, she

would occasionally “hear the girls tell [Pate] to stop, but when [she’d] look over at them

* * * [Pate] would make it look like he was patting their butt or tapping their hips or

something.” Trial Trans. Vol. V, p. 842. E.K. also testified that Pate “would be kissing

them on the neck,” and that the girls “never kissed him back.” Id. at 875. E.K. further

testified that when Pate tried to kiss the girls, they “pushed their head down to their

shoulders and would tell him ‘No, stop.’ ” Id. 875-876. Therefore, because E.K. was a

material witness in both matters, there was no prejudice in joining the offenses in

question.

{¶ 56} For the foregoing reasons, we find that all three parts of the other-acts

admissibility test set forth in Williams were satisfied. That is, the other-acts evidence

was relevant, probative of a non-propensity issue, and its probative value was not

outweighed by the danger of unfair prejudice. See Graham, Ohio Slip Opinion No. 2020-

Ohio-6700, __ N.E.3d __, at ¶ 72. Therefore, the evidence of the joined offenses was

admissible as other-acts evidence under Evid.R. 404(B). Because the State can

overcome a defendant’s claim of prejudicial joinder by showing that it could have

introduced evidence of the joined offenses as other-acts evidence under Evid.R. 404(B),

and because the trial court did not err in finding that the evidence at issue could be

introduced under that rule, the trial court did not abuse its discretion in denying Pate’s

motion to sever the joined offenses.

Simple and Direct Evidence -30-

{¶ 57} Even if we had found that the evidence at issue was not admissible as other-

acts evidence, the State can also defeat a claim of prejudicial joinder by showing that the

evidence pertaining to each offense joined at trial is simple and direct. Ford,

,

,

, at ¶ 104; Lott,

,

. “[W]hen simple and direct evidence exists, an accused is not prejudiced

by joinder regardless of whether the evidence is admissible as other-acts evidence.”

(Citations omitted.) State v. Coley,

,

(2001),

citing

. Evidence is simple and direct if the jury can readily separate the proof

required for each offense, the evidence is straightforward and unlikely to confuse jurors,

and if there is little danger that the jury would improperly consider testimony on one

offense as corroborative of the other. State v. Morgan, 2d Dist. Clark No. 2018-CA-103,

, citing State v. Skatzes,

,

,

, ¶ 34, citing LaMar,

,

,

. (Other citations omitted.)

{¶ 58} In denying Pate’s motion to sever, the trial court found that the evidence

supporting the joined offenses was separate and distinct and that there was a minimal

likelihood of jury confusion. After a thorough review of the record, we find that the trial

court’s decision was reasonable. There is nothing in the record suggesting that the

jurors were ever confused by the evidence or were unable to segregate the offenses and

evidence related to each charge. The jury, in fact, found Pate not guilty of one of the

charges levied against him, thereby demonstrating that the jury was able to sift through

the evidence and segregate the offenses successfully. Therefore, while there were

several charges brought in this case, the record nevertheless indicates that the evidence -31-

supporting each charge was simple and direct. Because the evidence was simple and

direct, for that reason as well, the trial court did not abuse its discretion in denying Pate’s

motion to sever.

{¶ 59} Pate’s first assignment of error is overruled.

Second Assignment of Error

{¶ 60} Under his second assignment of error, Pate challenges the trial court’s

decision to permit portions of A.A.1’s and A.A.2’s forensic interviews to be admitted into

evidence at trial. In support of this claim, Pate contends that the forensic interviews were

inadmissible hearsay evidence under Evid.R. 802. Specifically, Pate claims that the trial

court erred in admitting the forensic interviews under the hearsay exceptions in Evid.R.

803(4) and Evid.R. 807(A). Pate also contends that since A.A.1 testified at trial, her

forensic interview should not have been admitted into evidence because it was cumulative

and prejudicial. For the reasons set forth below, we find that each of Pate’s claims lack

merit.

Standard of Review

{¶ 61} “The admission or exclusion of evidence rests within the sound discretion

of the trial court.” State v. Sage,

,

(1987), paragraph

two of the syllabus. Disagreements about the admission of evidence are therefore

reviewed for an abuse of discretion. State v. Freeman, 2d Dist. Greene No. 2020-CA-

33,

, citing Sage. As a result, “[h]earsay challenges to a trial court’s

admission of statements from children in sex-abuse cases are reviewed under an abuse- -32-

of-discretion standard.” State v. Moore,

,

, ¶ 21 (2d

Dist.), citing State v. Muttart,

,

,

.

As previously noted, “[a] trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.” Darmond,

, 2013-Ohio-

966,

.

A.A.1’s and A.A.2’s Forensic Interviews were Admissible Hearsay Evidence

{¶ 62} 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). As a general rule, hearsay statements are inadmissible as

evidence. Evid.R. 802. There are, however, several exceptions to this rule, including

the exceptions set forth in Evid.R. 803(4) and Evid.R. 807(A). We have addressed each

of these exceptions separately below.

1. Evid.R. 803(4)

{¶ 63} Evid.R. 803(4) provides that a hearsay statement made for purposes of

medical diagnosis or treatment is not excluded by the hearsay rule, even though the

declarant is available as a witness. Specifically, the rule permits “[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.”

Evid.R. 803(4). “Such statements are deemed to be trustworthy and admissible because

‘the effectiveness of the treatment depends upon the accuracy of information given to the

physician [so] the declarant is motivated to tell the truth.’ ” State v. Hazel, 2d Dist. Clark -33-

No. 2011-CA-16,

, quoting State v. Brewer, 6th Dist. Erie No. E-01-

053,

, ¶ 28, citing State v. Eastham,

,

(1988).

{¶ 64} In the present case, the trial court found that A.A.1’s and A.A.2’s forensic

interviews were admissible hearsay under Evid.R. 803(4) because the statements elicited

during the interviews were for purposes of medical diagnosis or treatment. Pate,

however, contends that the primary purpose of the interviews was forensic information

gathering, not medical diagnosis or treatment. Therefore, according to Pate, the

challenged evidence was hearsay and not admissible under Evid.R. 803(4). We

disagree.

{¶ 65} “In determining whether statements made to a forensic interviewer at a child

advocacy center are made for the purpose of medical diagnosis and treatment, as

opposed to forensic investigative purposes, the court must ‘identify the primary purpose

of the statements.’ ” State v. Remy, 2d Dist. Clark No. 2017-CA-6,

, quoting State v. Arnold,

,

,

, ¶ 28.

“Whether the purpose of a child’s statements is for medical diagnosis or treatment will

depend on the facts of the particular case.” State v. Jones,

,

, ¶ 73 (2d Dist.), citing Muttart,

,

,

.

{¶ 66} In Arnold, the Supreme Court of Ohio recognized that child-advocacy

centers are unique insofar as a single interview with a child serves “dual purposes,” which

are: “(1) to gather forensic information to investigate and potentially prosecute a

defendant for the offense and (2) to elicit information necessary for medical diagnosis and -34-

treatment of the victim.” Arnold at ¶ 33. The Supreme Court in Arnold also found

nothing objectionable about considering the child’s statements individually to determine

which ones were for medical diagnosis or treatment and to exclude those that were not.

Id. at ¶ 42. For example, the Supreme Court found that some of the child’s statements

primarily had a forensic or investigative purpose, including the child’s assertion that the

defendant had “shut and locked the bedroom door before raping her; her descriptions of

where her mother and brother were while she was in the bedroom with Arnold, of Arnold’s

boxer shorts, of him removing them, and of what Arnold’s ‘pee-pee’ looked like; and her

statement that Arnold removed her underwear.” Id. at ¶ 34. The Supreme Court found

that “[t]hese statements likely were not necessary for medical diagnosis or treatment.

Rather, they related primarily to the state’s investigation.” Id.

{¶ 67} The Supreme Court, however, also found that “other statements provided

information that was necessary to diagnose and medically treat” the child victim. Id. at

¶ 37. The Supreme Court noted that “[t]he history obtained during the interview is

important for the doctor or nurse practitioner to make an accurate diagnosis and to

determine what evaluation and treatment are necessary.” Id. Specifically, the Supreme

Court held that the victim’s “statements that described the acts that Arnold performed,

including that Arnold touched her ‘pee-pee,’ that Arnold’s ‘pee-pee’ went inside her ‘pee-

pee,’ that Arnold’s ‘pee-pee’ touched her ‘butt,’ that Arnold’s hand touched her ‘pee-pee,’

and that Arnold’s mouth touched her ‘pee-pee’ ” were necessary for medical diagnosis or

treatment. Id. at ¶ 38. The fact that the victim already had undergone a “rape-kit

examination” did not dissuade the Supreme Court from finding that the foregoing

statements were necessary for subsequent medical diagnosis or treatment. Id. at ¶ 39. -35-

The Supreme Court also found nothing objectionable about the fact that police watched

the interview or the fact that information obtained for medical purposes ultimately was

used to prosecute the defendant. These considerations did “not change the fact” that

some of the child’s statements “were made for medical diagnosis and treatment.” Id. at

¶ 43.

{¶ 68} In State v. Warman, 12th Dist. Butler No. CA2016-02-029,

,

the Twelfth District Court of Appeals applied Arnold in a case involving a recording of an

interview at a child-advocacy center. After reviewing the child’s statements during the

interview, the Twelfth District concluded that some of the statements were admissible

under Evid.R. 803(4) and some were not. Id. at ¶ 51-52. Although the trial court in

Warman had allowed the jury to see a video of the entire recorded interview, the Twelfth

District held that the introduction of the inadmissible statements was harmless error and

stated the following:

Under Arnold, KG6's statements concerning the specifics of the

sexual act she performed, i.e., how many times she did it, her physical

interaction with his penis, and “ducking,” were primarily for the purpose of

medical treatment. However, the remaining information in the interview,

including where the car was located, where she and her siblings were

situated in the car, and that she had a shirt around her eyes were

statements drawn from her primarily for a forensic or investigative purpose.

Because these statements were not primarily for medical diagnosis or

treatment they should not have been admitted under the Evid.R. 803(4)

hearsay exception. -36-

Accordingly, some of the statements KG6 made in the interview did

not fall under the hearsay exception for medical diagnosis or treatment, and

therefore the admission of those statements was error to the extent that

they were offered to prove the truth of the matter they asserted. However,

such error was harmless as the state presented ample evidence other than

the video-recorded interview to sustain Warman’s conviction for the rape of

KG6.

Id. at ¶ 50-52.

{¶ 69} In Remy, 2d Dist. Clark No. 2017-CA-6,

, this court also

considered whether statements made by child sex-abuse victims were admissible under

Evid.R. 803(4) as statements made for purposes of medical diagnosis or treatment.

Similar to the case at bar, Remy involved three young children who had been sexually

abused by their stepfather. Id. at ¶ 1-8. After disclosing the abuse, the children

underwent forensic interviews at a child-advocacy center. Id. at ¶ 9. On appeal, we

found that the trial court had erred in admitting the children’s statements during the

interview under Evid.R. 803(4), but determined the error was harmless. Id. at ¶ 90-91.

In so holding, we stated the following:

Based on the evidence before us, the primary purpose of [social

worker] Lowe’s forensic interviews with D.C., J.C., and K.C. was for forensic

information-gathering, not for the purpose of medical diagnosis and

treatment. The interviews were coordinated with law enforcement

personnel, Detective Fent observed the interviews from an observation

room, and Lowe consulted with Detective Fent prior to completing the -37-

interviews that the detective attended. The interviews were not conducted

in a medical facility or through referrals from a medical facility, and there is

no indication that the children gave the statements for purposes of obtaining

a medical diagnosis or treatment. Although referrals to physicians and

counselors were made following certain interviews, the primary goals stated

by Lowe were information-gathering for child safety, not to provide

immediate medical (physical or mental health) care and diagnosis.

Although the recorded videos of Lowe’s interviews were

objectionable, we nevertheless conclude, upon review of the entire record,

that their admission was harmless. As with the statements in [another trial

witness’s] recordings, the allegations by the children in the challenged

interviews with Lowe were repeated to other medical professionals and/or

therapists. Accordingly, the content of the children’s statements would

have been before the jury even absent the video-taped interviews. In

addition, even without the video-recordings, Lowe would have been

permitted to testify about the demeanor of the children during the interviews

and to the referrals that were made as a result of the girls’ statements during

the interviews. Arguably, Lowe might have been permitted to testify about

some of the girls’ allegations to explain why the referrals were made, but

not for the truth of the allegations themselves.

Id. at ¶ 90-91.

{¶ 70} After Remy, this court addressed the same Evid.R. 803(4) issue in State v.

Moore,

,

(2d Dist.) and noted the following: -38-

[I]n the Remy opinion * * *, this court did not attempt to parse the

children’s statements to determine whether the primary purpose for some

of them might have been medical diagnosis or treatment. Instead, we

simply conducted a harmless-error analysis. As illustrated by Arnold and

Warman, however, it is also appropriate to consider a child’s statements

one-by-one to see whether any of them fit within the Evid.R. 803(4) hearsay

exception. In fact, in a second Remy case * * * this court addressed the

same interviews in the context of the children’s mother’s appeal from her

own convictions related to her husband’s abuse. In State v. Remy, 2018-

Ohio-2857,

(2d Dist.), we explicitly recognized that “some

statements” made during the children’s interviews at the child-advocacy

center “may have been made for purpose of treatment” and, thus, may not

have been objectionable on hearsay grounds. Id. at ¶¶ 64-65

(acknowledging that not all of the children’s statements at the child-

advocacy center were necessarily subject to exclusion as hearsay and

recognizing that some of the statements may have been related to medical

treatment). That is precisely what we have found in Moore’s case.

Moore at ¶ 32.

{¶ 71} Like Arnold and Warman, in Moore we held that the critical aspects of the

child victim’s statements to the interviewer were properly admitted under Evid.R. 803(4)

and that the trial court’s erroneous admission of other hearsay statements by the victim

during her interview at the child-advocacy center constituted harmless error. Id. at ¶ 33.

Specifically, we stated that: -39-

Based on our review of the record, the trial court did not act

unreasonably to the extent that it allowed the jury to hear [the victim’s]

statements to [the interviewer] about specific sex acts Moore performed on

her. Those statements referenced multiple instances of vaginal

intercourse, oral sex, contact between Moore’s penis and [the victim’s]

“butt,” and touching of her breasts and vagina. The trial court acted within

its discretion in concluding that the primary purpose of these statements

was medical diagnosis or treatment.

We believe the trial court erred, however, insofar as it allowed the

jury to hear all of [the victim’s] statements to [the interviewer]. For

example, [the victim’s] statements about the physical location of the abuse

and the layout of the house, the presence of anyone else, what Moore said

or sounds he made while performing sex acts, and whether [the victim] was

asleep all appear to have been elicited and made primarily for investigatory

purposes. These sorts of contextual statements were not reasonably

necessary for medical diagnosis or treatment and, therefore, were not

admissible under the Evid.R. 803(4) hearsay exception. As the Twelfth

District did in Warman, however, we find that the trial court’s admission of

these non-medical statements constituted harmless error.

(Footnote omitted.) Id. at ¶ 29-30.

{¶ 72} Based on the holdings in Arnold, Moore, and Warman, we find that the

statements A.A.1 and A.A.2 made during their interviews describing the nature of the

sexual abuse they endured were for purposes of medical diagnosis and treatment and -40-

were therefore admissible under Evid.R. 803(4). For example, A.A.1’s statements during

the interview indicating that Pate rubbed on her private with his fingers going in circles,

put a “blue squiggly thing” on her private, licked her private, and made her suck his private

were all admissible for purposes of medical diagnosis and treatment under Evid.R.

803(4). See State’s Exhibit 5(A). Likewise, A.A.2’s statements during the interview

indicating that Pate put his “thing” in her mouth, touched her “spot” with a wet finger by

putting his finger in his mouth and then dipping it in her “spot”, and that Pate hurt her

when he was “down there,” were also admissible under Evid.R. 803(4). See id.

{¶ 73} Although A.A.1’s and A.A.2’s forensic interviews contained other

statements that did not pertain to medical diagnosis or treatment, upon review, we find

that the admission of those statements was harmless error. This is because A.A.1

reiterated the non-medical statements during her live testimony at trial, and, for reasons

discussed more fully below, all of A.A.2’s non-medical statements were separately

admissible under Evid.R. 807(A). Therefore, all of the statements would have been

presented to the jury regardless of their admissibility under Evid.R. 803(4). Accordingly,

we find that the trial court did not err in applying Evid.R. 803(4) to the statements that

pertained to the nature of Pate’s sexual abuse, and that the other statements improperly

admitted under that rule amounted to harmless error.

2. Evid.R. 807(A)

{¶ 74} Evid.R. 807 “provides an exception to the general exclusion of hearsay

statements when a child under the age of 12 at the time of trial or hearing makes an out-

of-court statement describing any sexual act that is performed on, with, or by the child.”

State v. Silverman,

,

,

, citing -41-

Evid.R. 807(A). Specifically, that rule provides that:

An out-of-court statement made by a child who is under twelve years

of age at the time of trial or hearing describing any sexual activity performed,

or attempted to be performed, by, with, or on the child or describing any act

or attempted act of physical harm directed against the child’s person is not

excluded as hearsay under Evid.R. 802 if all the following apply:

(1) The court finds that the totality of the circumstances surrounding the

making of the statement provides particularized guarantees of

trustworthiness that make the statement at least as reliable as

statements admitted pursuant to Evid.R. 803 and 804. The

circumstances must establish that the child was particularly likely to be

telling the truth when the statement was made and that the test of cross-

examination would add little to the reliability of the statement. In making

its determination of the reliability of the statement, the court shall

consider all of the circumstances surrounding the making of the

statement, including but not limited to spontaneity, the internal

consistency of the statement, the mental state of the child, the child’s

motive or lack of motive to fabricate, the child’s use of terminology

unexpected of a child of similar age, the means by which the statement

was elicited, and the lapse of time between the act and the statement.

In making this determination, the court shall not consider whether there

is independent proof of the sexual activity or attempted sexual activity,

or of the act or attempted act of physical harm directed against the child's -42-

person;

(2) The child’s testimony is not reasonably obtainable by the proponent of

the statement;

(3) There is independent proof of the sexual activity or attempted sexual

activity, or of the act or attempted act of physical harm directed against

the child’s person;

(4) At least ten days before the trial or hearing, a proponent of the statement

has notified all other parties in writing of the content of the statement,

the time and place at which the statement was made, the identity of the

witness who is to testify about the statement, and the circumstances

surrounding the statement that are claimed to indicate its

trustworthiness.

Evid.R. 807(A).

{¶ 75} “For the statement to be admitted [under Evid.R. 807(A)], the proponent of

the statement must not be able to reasonably obtain the child’s testimony.”

, citing Evid.R. 807(A)(2). “[W]hen a court finds that a child is not competent to be a

witness, her testimony is ‘not reasonably obtainable’ pursuant to Evid.R. 807(B)(2).”

(Citations omitted.) State v. Cardosi,

,

(2d

Dist. 1997); State v. C.W.,

,

, ¶ 9 (2d Dist.). In this case,

the trial court conducted a voir dire examination and determined that A.A.2 was not

competent to testify at trial. Therefore, because A.A.2’s was not competent to testify at

trial, her testimony was not reasonably obtainable under Evid.R. 807(A).

{¶ 76} Following an evidentiary hearing, the trial court found that all four -43-

requirements of Evid.R. 807(A) were satisfied in order to permit A.A.2’s forensic interview

to be admitted at trial. Pate, however, contends that the requirement under Evid.R.

807(A)(1) was not satisfied because the statements A.A.2 made during the interview were

unreliable. Pate argues that A.A.2’s statements were unreliable because the

interviewer, Jennifer Knisley, testified that A.A.2 was “scatterbrained” and “chaotic” during

the interview, which prevented Knisley from following the “usual protocol.” Specifically,

Knisley testified that:

[A.A.2 is] five and just developmentally [she] was a little bit more

scatterbrained and kind of chaotic, just—she’s a very active five-year-old

and so she wanted to talk about what she wanted to talk about and not

necessarily follow, you know, this protocol or this structure that I wanted to

go through, so. She demonstrates some of that, was just kind of being all

over and she answers what she wants when she wants.

Trial Trans. Vol. IV, p. 730-731.

{¶ 77} Upon review, we find that Knisley’s testimony does not indicate that A.A.2’s

statements were unreliable. When determining the reliability of A.A.2’s statements, the

trial court thoroughly considered all of the circumstances surrounding the forensic

interview, including the factors listed in Evid.R. 807(A)(1). Specifically, the trial court

found that A.A.2’s statements were elicited by means of a non-leading forensic interview

that showed spontaneity. Although we find that there were some instances where

Knisley had to use leading questions in order to guide A.A.2 back to the topic being

discussed and repeated several questions due to A.A.2’s lack of focus, the video of the

interview as a whole establishes that the interview was neutral and that Knisley did not -44-

improperly influence A.A.2’s responses. The video also shows that A.A.2 would at times

spontaneously provide unsolicited details about the sexual abuse by Pate. The video

further supports the trial court’s finding that there were no material, internal consistencies

in A.A.2’s allegations.

{¶ 78} The trial court also reasonably found that, due A.A.2’s young age, A.A.2 did

not have the cognitive wherewithal to connive a plan to fabricate allegations of sexual

abuse against Pate. In addition, the trial court reasonably found that A.A.2’s use of the

term “sex” during the interview and her ability to physically imitate sex acts was not

something a five-year old would be expected to know or reference. The trial court further

found that the guarantees of trustworthiness that one would expect in statements

admitted under Evid.R. 803(4) were present in the forensic interview. Based on all of

these findings, the trial court reasonably determined that A.A.2’s forensic interview had

particularized guarantees of trustworthiness that made it sufficiently reliable.

{¶ 79} Because the trial court’s findings as to the reliability of A.A.2’s statements

are reasonable, and because the other requirements under Evid.R. 807(A) are not in

dispute, we do not find that the trial court abused its discretion in admitting A.A.2’s forensic

interview under the hearsay exception in Evid.R. 807(A).

The Cumulative Forensic Interview Evidence Was Not Prejudicial

{¶ 80} Pate also contends that since A.A.1 testified about the allegations of sexual

abuse at trial, the trial court erred in admitting her forensic interview because it was

cumulative to her testimony and thus prejudicial. We again disagree.

{¶ 81} “ ‘ “Cumulative evidence” ’ is additional evidence of the same kind to the -45-

same point.” State v. Jali, 2d Dist. Montgomery No. 28294,

, quoting

Kroger v. Ryan,

,

(1911), syllabus. “Pursuant to Evid.R.

403(B), it is within the sound discretion of the trial court to exclude cumulative evidence

only when the probative value of the evidence is substantially outweighed by the danger

of a material prejudice to the defendant.” State v. Arrone, 2d Dist. Greene No. 2005-CA-

89,

. “The mere fact that evidence is repetitive will not be

considered reversible error unless the defendant was unfairly prejudiced thereby.” State

v. Baker, 2d Dist. Montgomery No. 23933,

, quoting State v. Smith,

,

(1997). “The pertinent question is whether

the evidence was unfairly prejudicial to the defendant, not whether it was unfavorable to

him.”

{¶ 82} Upon review, we find that A.A.1’s interview was cumulative in that there was

nothing in the admitted portion of A.A.1’s forensic interview that was not covered by

A.A.1’s trial testimony. The record, however, indicates that the interview was admitted

to assist Knisley in explaining how she analyzed the context of A.A.1’s allegations, i.e.,

whether the allegations had characteristics of innocent touching or sexual abuse. See

Trial Trans. Vol. IV, p. 723 and 728-729. Therefore, while the admission of A.A.1’s

interview may have been cumulative, it was not needlessly cumulative. Regardless,

Pate failed to demonstrate how he was materially prejudiced by the cumulative nature of

the evidence. Pate simply argued that A.A.1’s interview merely corroborated her trial

testimony. While the corroboration may have been unfavorable to Pate, it was not

unfairly prejudicial because even if A.A.1’s interview had not been admitted, there was an

abundance of other evidence presented at trial that corroborated A.A.1’s testimony. -46-

{¶ 83} Because A.A.1’s and A.A.2’s forensic interviews were admissible under the

hearsay exceptions in Evid.R. 803(4) and Evid.R. 807(A), and because A.A.1’s forensic

interview was not prejudicially cumulative, Pate’s second assignment of error is overruled.

Third Assignment of Error

{¶ 84} Under his third assignment of error, Pate contends that his convictions for

six counts of raping A.A.1 and four counts of raping A.A.2 were not supported by sufficient

evidence and were against the manifest weight of the evidence. We disagree.

{¶ 85} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis,

,

(1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.)

{¶ 86} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating

whether a conviction was against the manifest weight of the evidence, the appellate court -47-

must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier

of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’ ”

, quoting State

v. Martin,

,

(1st Dist. 1983). “The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61,

2013-CA-62,

, citing Wilson at ¶ 14.

{¶ 87} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

, *4 (Aug. 22, 1997). However, we may determine which of several competing

inferences suggested by the evidence should be preferred. A judgment of conviction

should be reversed as being against the manifest weight of the evidence only in

exceptional circumstances.

.

{¶ 88} As previously noted, Pate is challenging his convictions for six counts of

raping A.A.1 and four counts of raping A.A.2. Each of the rape counts was in violation

of R.C. 2907.02(A)(1)(b) and included a specification that the victim was less than 10

years of age. See R.C. 2907.02(B). Pursuant to R.C. 2907.02(A)(1)(b): “No person shall

engage in sexual conduct with another who is not the spouse of the offender * * * when

* * * [t]he other person is less than thirteen years of age, whether or not the offender

knows the age of the other person.”

{¶ 89} The term “sexual conduct” is defined as “vaginal intercourse between a -48-

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.” R.C. 2907.01(A). “ ‘Fellatio is committed by touching the male sex organ with

any part of the mouth.’ ” State v. Hudson, 2d Dist. Montgomery No. 22793, 2009-Ohio-

2776, ¶ 42, quoting State v. Long,

,

(9th

Dist. 1989). “[C]unnilingus is completed by the placing of one’s mouth on the female’s

genitals.” State v. Lynch,

,

,

, ¶ 86.

Cunnilingus “generally refers to the act of licking to stimulate the vulva or clitoris with the

lips or tongue.” State v. Gossard, 2d Dist. Montgomery No. 19494,

, ¶ 14.

{¶ 90} Pate contends that there was insufficient evidence to support a finding that

he engaged in sexual conduct with A.A.1 and A.A.2. The following evidence, however,

established otherwise.

Rape of A.A.1

{¶ 91} During trial, A.A.1 referred to her vagina as her “private.” A.A.1 testified

that she used her private for “pottying” and indicated that it was located in her lap area.

Trial Trans. Vol. IV, p. 639-640. A.A.1 also referred to Pate’s penis as his “private,” as

she testified that boys use their private for “pottying” and indicated that a boy’s private is

located between his legs.

Using this terminology, A.A.1 testified to several incidents

of cunnilingus, digital penetration, and fellatio. Each of those incidents are discussed in

detail below.

1. Cunnilingus -49-

{¶ 92} Three of the six counts of rape related to A.A.1 involved allegations of Pate

performing cunnilingus. In support of these counts, A.A.1 testified that Pate licked on

her private in the “back room” and identified the “back room” as Pate’s bedroom.

at

635 and 646. A.A.1 testified that when it happened, she would be lying on her belly on

Pate’s side of the bed with her clothes off. Id. at 646-647. A.A.1 also testified that when

Pate licked her private it would be on her skin. Id. at 646. A.A.1 additionally testified

that Pate licked on her private in the same manner while she was on the flower chair in

Pate’s front room/living room. Id. at 643, 646-648.

{¶ 93} A.A.1 further testified that Pate licked on her private while she was in his

van and truck. Id. at 648-651. A.A.1 testified that after Pate picked her up from school,

he would drive her to the river where no one else was around. Id. at 648-649. A.A.1

testified that when they got to the river, Pate would get out of his vehicle, come around to

the front-passenger seat where she was sitting, and “lick on [her] private.” Id. at 649-

650. A.A.1 testified that Pate instructed her how to put her legs up and once again

indicated that when Pate licked on her private it would be on her skin. Id. at 651-653.

{¶ 94} When viewed in a light most favorable to the State, the foregoing testimony

was sufficient to establish at least three counts of rape by cunnilingus in violation of R.C.

2907.02(A)(1)(b). The testimony established that Pate performed cunnilingus on A.A.1

on at least three separate occasions while: (1) in his bedroom, (2) in the living room and

(3) inside his vehicle by the river.

2. Digital Penetration

{¶ 95} Two of the six counts of rape related to A.A.1 involved allegations of Pate’s

digitally penetrating A.A.1’s vagina. In support of these counts, A.A.1 testified that Pate -50-

rubbed on her private using two of his fingers. Trial Trans. Vol. IV, p. 653. A.A.1

testified that Pate’s fingers “would go in circles” on her skin. Id. At one point, A.A.1

testified that Pate only touched “outside” her body. Id. at 652. However, when A.A.1

was asked to demonstrate on a tissue box how Pate touched her with his fingers, the

record indicates that A.A.1’s fingers went slightly inside the tissue box during the

demonstration. Id. at 654. A.A.1 testified that Pate did this type of touching “[i]n the

living room, back room, van, and truck.” Id. at 654. A.A.1 specifically recalled it

happening in the living room while she was “sitting in [Pate’s] lap.” Id. at 654. A.A.1

testified that it would happen when they were sitting on “the flower chair” and on “the blue

chair.” Id. at 655. A.A.1 testified that it felt “weird.” Id.

{¶ 96} The insertion, however slight, of any part of the body into the vaginal

opening of another constitutes “sexual conduct” for purposes of establishing rape under

R.C. 2907.02(A)(1)(b). R.C. 2907.01(A). Therefore, when viewed in a light most

favorable to the State, we find that the foregoing testimony elicited from A.A.1 was

sufficient to establish at least two counts of rape by digital penetration. Specifically, the

testimony established that Pate digitally penetrated A.A.1 on two occasions in the living

room, i.e. on the flower chair and on the blue chair. The testimony additionally

established that Pate digitally penetrated A.A.1 while in his bedroom and vehicle.

Accordingly, there was sufficient evidence of at least two instances of digital penetration.

Pate’s claim otherwise again lacks merit.

3. Fellatio

{¶ 97} The remaining count of rape related to A.A.1 involved an allegation that

Pate made A.A.1 perform fellatio on him. In support of this count, A.A.1 testified that -51-

Pate “would make [her] put [her] mouth on his private spot.” Trial Trans. Vol. IV, p. 659.

A.A.1 testified that Pate instructed her how to do it by showing her a video on his cell

phone of “girls sucking on the boys’ things.” Id. at 659, 661. A.A.1 testified that Pate

would put his private spot in her mouth while in the living room and in the back room. Id.

at 660. A.A.1 specifically recalled an incident in the front room when “something white”

came out of Pate’s private spot after he put his private in her mouth. Id. A.A.1 testified

that the white substance “squirted out” on the floor and that Pate said “it was juice.” Id.

at 660- 661.

{¶ 98} When viewed in a light most favorable to the State, the foregoing testimony

was sufficient to establish one count of rape by fellatio in violation of R.C.

2907.02(A)(1)(b).

Rape of A.A.2

{¶ 99} As previously discussed, because five-year-old A.A.2 was found to be

incompetent to testify at trial, a portion of A.A.2’s forensic interview was played for the

jury and admitted into evidence pursuant to Evid.R. 807(A). During the interview, A.A.2

initially only described Pate’s abuse of A.A.1. However, A.A.2 eventually began to

include herself in the abuse and described two instances of fellatio. In addition, A.A.1

provided testimony at trial indicating that she saw Pate perform cunnilingus on A.A.2. All

of these incidents are discussed in detail below.

1. Fellatio

{¶ 100} Two of the four counts of rape related to A.A.2 involved allegations of

fellatio. After telling the interviewer about how Pate touched A.A.1 with his genital area, -52-

A.A.2 made the following unsolicited comment: “Him does it sometimes and we have to

put it in [her] mouth.” State’s Exhibit 5(A), 4:55:08 p.m. to 4:55:56 p.m. When the

interviewer clarified and asked A.A.2 if Pate did that to her, A.A.2 first shook her head no

and then responded: “Yeah, but we say no all the time.” Id. at 4:55:57 p.m. to 4:56:06

p.m. When the interviewer asked A.A.2 to tell her about Pate putting “his spot,” i.e., his

genitalia, in her mouth, A.A.2 indicated that Pate did it even though she did not want him

to. Id. at 4:58:12 p.m. to 4:58:21 p.m. A.A.2 then said “We tell him to stop” and

indicated that Pate stopped. Id. at 4:57:42 p.m. to 4:58:43 p.m. When the interviewer

asked A.A.2 to clarify what the “thing” or “spot” was on Pate’s body, A.A.2 said that Pate’s

thing was “in the middle.” Id.

{¶ 101} The interviewer then asked A.A.2 where she was located when Pate puts

his “thing” in her mouth and A.A.2 responded: “At Pawpaw and Mammaw’s.” Id. at

4:58:48 p.m. to 4:58:53 p.m. When asked where in Pawpaw and Mammaw’s house,

A.A.2 responded: “In their bedroom.” Id. at 4:58:54 p.m. to 4:58:59 p.m. A.A.2

thereafter indicated that Pate only did it to her and A.A.1, not to A.A.3. Id. at 4:59:00

p.m. to 4:59:16 p.m.

{¶ 102} Later in the interview, A.A.2 indicated that Pate showed her pornographic

videos. Id. at 5:06:37 p.m. to 5:07:11 p.m. When the interviewer asked what the people

were doing in the videos, A.A.2 said “all these girls do this” and then A.A.2 physically

imitated oral sex by opening her mouth and moving her head. Id. at 5:06:48 p.m. to

5:07:00 p.m. A.A.2 thereafter clarified that “they are doing it to the boy.” Id. at 5:07:03

p.m. to 5:07:13 p.m. A.A.2 said that the people in the videos were “not kids they’re

grownups.” Id. at 5:07:14 p.m. to 5:07:23 p.m. When asked how Pate showed her the -53-

videos, A.A.2 said that “they were doing it on his phone.” Id. at 5:07:45 p.m. to 5:08:06

p.m. A.A.2 also shook her head yes when the interviewer asked her whether Pate had

ever made her do the things shown in the videos. Id. at 5:08:15 p.m. to 5:08:20 p.m.

{¶ 103} When viewed in a light most favorable to the State, the foregoing evidence

was sufficient to establish two counts of rape by fellatio in violation of R.C.

2907.02(A)(1)(b). A.A.2’s comments indicating that she said no to fellatio all the time

and that Pate did it anyway suggested that Pate made her perform fellatio on more than

one occasion. A.A.2 also specifically indicated that Pate made her perform fellatio in his

bedroom. In addition, A.A.2’s comments indicating that Pate showed her videos on his

cell phone of females performing oral sex on males and how Pate made her do the things

in the videos indicated a time that Pate made her perform fellatio on him while showing

her a pornographic video on his cell phone. We further note that A.A.1 testified that she

observed Pate do everything to A.A.2 that he did to her, and A.A.1 specifically testified

that Pate would make her (A.A.1) perform fellatio in the living room and in his bedroom.

Trial Trans. Vol. IV, p. 660 and 664-665. Based on the foregoing statements and

testimony, we find that there was sufficient evidence in the record supporting at least two

separate instances of fellatio involving A.A.2.

2. Cunnilingus

{¶ 104} The remaining two counts of rape related to A.A.2 involve allegations of

cunnilingus. At trial, A.A.1 testified that she observed Pate lick A.A.2’s private in the

living room and his bedroom. Trial Trans. Vol. IV, p. 666-667. A.A.1 testified that this

would happen after school and during sleepovers. Id. at 667. A.A.1 recalled a specific

incident when this happened in the living room, as A.A.1 testified that A.A.2 was on her -54-

belly leaning over the arm of the flower chair and Pate was sitting on the “rolling chair.”

Id. A.A.1 also testified that she recalled seeing Pate lick A.A.2’s private in the back room

while on his side of the bed. Id. at 667-668.

{¶ 105} Again, when viewed in a light most favorable to the State, the foregoing

testimony was sufficient to establish two counts of rape by cunnilingus in violation of R.C.

2907.02(A)(1)(b). A.A.1’s testimony sufficiently established that Pate performed

cunnilingus on A.A.2 in his bedroom and living room.

{¶ 106} Based on all the foregoing evidence, the jury could have reasonably

determined that Pate engaged in six incidents of sexual conduct with A.A.1, as well as

four incidents of sexual conduct with A.A.2, thereby committing a total of ten counts of

rape of a minor less than ten years of age in violation of R.C. 2907.02(A)(1)(b) and (B).

In reaching its verdict, the jury was free to believe all, part, or none of the testimony of

each witness and to draw reasonable inferences from the evidence presented. State v.

Hunt, 2d Dist. Darke No. 2018-CA-9,

. After weighing all the

evidence, including but not limited to the material discovered on Pate’s cell phone, E.K.’s

observations of Pate’s interactions with the girls, and E.K.’s own allegations of abuse, we

cannot say that the jury lost its way or created a manifest miscarriage of justice in

believing A.A.1’s and A.A.2’s allegations of sexual abuse. Simply because the jury

chose to believe A.A.1’s and A.A.2’s allegations did not mean that the verdict was against

the manifest weight of the evidence. Therefore, in addition to being supported by

sufficient evidence, Pate’s convictions for six counts of raping A.A.1 and four counts of

raping A.A.2 were not against the manifest weight of the evidence.

{¶ 107} Pate’s third assignment of error is overruled. -55-

Fourth Assignment of Error

{¶ 108} Under his fourth assignment of error, Pate contends that the State

committed prosecutorial misconduct by pursuing joinder of the offenses related to E.K.

and A.A.1, A.A.2 and A.A.3. Pate also contends that the State committed prosecutorial

misconduct by presenting A.A.1’s and A.A.2’s forensic interviews, the blue vibrator found

in Pate’s residence, and E.K.’s corroborating accusations as evidence at trial. We

disagree.

{¶ 109} “When reviewing a claim of prosecutorial misconduct, our inquiry is

twofold: we must first decide whether the prosecutor’s actions were improper, and if so,

we consider whether the conduct prejudicially affected the defendant’s substantial rights.”

State v. Kirkland,

,

,

, citing

State v. Clinton,

,

,

. “ ‘The

touchstone of due process analysis * * * is the fairness of the trial, not the culpability of

the prosecutor.’ ”

quoting Smith v. Phillips,

,

,

(1982). “Thus, ‘[t]he relevant question is whether the prosecutors’ [conduct]

‘ “so infected the trial with unfairness as to make the resulting conviction a denial of due

process.” ’ ”

quoting Darden v. Wainwright,

,

,

(1986), quoting Donnelly v. DeChristoforo,

,

,

(1974). “Where it is clear beyond a reasonable doubt that the trier of fact

would have found the defendant guilty, even absent the alleged misconduct, the

defendant has not been prejudiced, and his conviction will not be reversed.” State v. St.

John, 2d Dist. Montgomery No. 27988,

, ¶ 110, citing State v. Underwood, -56-

2d Dist. Montgomery No. 24186,

.

{¶ 110} With regard to joinder, pursuant to Crim.R. 8(A), the State was permitted

to pursue joinder of the offenses in question. Therefore, contrary to Pate’s claim

otherwise, pursuing joinder was not improper. In so holding, we note that Pate has never

argued that joinder was improper, as Pate conceded in the court below that these

offenses were properly joined in a single indictment pursuant to Crim.R. 8(A). See Reply

to State’s Motion Contra Defendant’s Motion to Sever (Sep. 24, 2019), p. 2. Pate instead

filed a Crim.R. 14 motion to sever the offenses on grounds of prejudice, which, for the

reasons discussed under Pate’s first assignment of error, was properly denied by the trial

court.

{¶ 111} As discussed under Pate’s second assignment of error, it was also not

improper for the State to present A.A.1’s and A.A.2’s forensic interviews as evidence at

trial, as the interviews were admissible under Evid.R. 803(4) and Evid.R. 807(A). Even

though portions of A.A.1’s interview contained statements that did not fall under Evid.R.

803(4), and even though the statements in A.A.1’s interview were cumulative to her trial

testimony, as previously discussed, Pate was not unfairly prejudiced by those harmless

errors.

{¶ 112} Concerning the blue vibrator, Pate asserts that the State knew A.A.1 would

not recognize it as the one Pate used on her, yet asked her to identify a picture of it at

trial anyway as a means to inflame the jury’s emotions. There is, however, no indication

on the record that the State knew A.A.1 would not recognize the blue vibrator. In any

event, Pate was not prejudiced by the State’s conduct because the fact that A.A.1 did not

recognize the blue vibrator was beneficial to his defense. We cannot say that the State’s -57-

reference to the blue vibrator, which A.A.1 did not recognize, affected the jury’s verdict.

{¶ 113} Finally, we also fail to see how it was improper for the State to admit

evidence of E.K.’s corroborating allegations of sexual abuse at trial. E.K.’s allegations

were admissible not only with respect to the offenses for which she was the victim, but

also with respect to the offenses involving A.A.1, A.A.2, and A.A.3, as we have already

determined that E.K.’s testimony regarding her abuse would be admissible as other-acts

evidence under Evid.R. 404(B). Simply because E.K.’s testimony about Pate’s sexual

abuse tended to corroborate A.A.1’s and A.A.2’s allegations of sexual abuse did not make

her testimony on that subject improper.

{¶ 114} Because the conduct challenged by Pate was not improper or prejudicial,

Pate has not established a claim of prosecutorial misconduct. Therefore, his fourth

assignment of error is overruled.

Fifth Assignment of Error

{¶ 115} Under his fifth assignment of error, Pate contends that the cumulative

effect of all the errors in this case deprived him of a fair trial and warrants a reversal of

his conviction. We again disagree.

{¶ 116} Under the doctrine of cumulative error, “[s]eparately harmless errors may

violate a defendant’s right to a fair trial when the errors are considered together.” State

v. Harris, 2d Dist. Montgomery No. 19796,

, citing State v. Madrigal,

,

(2000). “In order to find cumulative error, we first

must find that multiple errors were committed at trial.”

“A conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of a fair trial even -58-

though each of the numerous instances of trial-court error does not individually constitute

cause for reversal.” State v. Powell,

,

,

, ¶ 223, citing State v. DeMarco,

,

(1987),

paragraph two of the syllabus.

{¶ 117} In this case, the only harmless errors committed at trial were that portions

of A.A.1’s forensic interview were admitted into evidence despite being cumulative and

despite the interview’s containing hearsay statements that did not fall under the medical

diagnosis or treatment hearsay exception in Evid.R. 803(4). After considering these few

harmless errors together, we do not find that they were so pervasive as to deprive Pate

of a fair trial. Accordingly, there is no cause for reversal under the doctrine of cumulative

error.

{¶ 118} Pate’s fifth assignment of error is overruled.

Conclusion

{¶ 119} Having overruled all five assignments of error raised by Pate, the judgment

of the trial court is affirmed.

.............

HALL, J. and EPLEY, J., concur.

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Mathias H. Heck, Jr. Andrew T. French Johnna M. Shia Hon. Mary Lynn Wiseman