[Cite as State v. Rogers,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2023-08-063

: OPINION - vs - 4/29/2024 :

TODD JEFFREY ROGERS, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 22CR39713

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Flannery | Georgalis, LLC, and Nathan R. Coyne and Matthew L. Jalandoni, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Todd Jeffrey Rogers, appeals his conviction in the Warren County

Court of Common Pleas for one count of first-degree felony rape and five counts of third-

degree felony gross sexual imposition of a child and close family member who, at all times

relevant, was under the age of ten years. For the reasons outlined below, we affirm

Rogers' conviction. Warren CA2023-08-063

Facts and Procedural History

{¶ 2} On September 9, 2022, the Warren County Grand Jury returned an 11-count

indictment against Rogers. The indictment charged Rogers with two counts of first-

degree felony rape, two counts of first-degree felony attempted rape, and seven counts

of third-degree felony gross sexual imposition. The charges arose based on allegations

that Rogers had sexually abused an under ten-year-old child and close family member

on multiple occasions while in Warren County, Ohio between January 1, 2019 and August

2, 2022.

{¶ 3} On July 24 through 26, 2023, the matter proceeded to a three-day jury trial.

Prior to trial, the state dismissed three of the 11 counts. Rogers was tried for the following

eight counts: one count of first-degree felony rape in violation of R.C. 2907.02(A)(1)(b)

(Count 1); one count of first-degree felony attempted rape in violation of R.C. 2923.02

and 2907.02(A)(1)(b), which included an attempted rape specification pursuant to R.C.

2941.1419(A) (Count 2); four counts of third-degree felony gross sexual imposition in

violation of R.C. 2907.05(B) (Counts 3, 4, 6, and 8); and two counts of third-degree felony

gross sexual imposition in violation of R.C. 2907.05(A)(4) (Counts 5 and 7).1

{¶ 4} On July 26, 2023, the jury returned a verdict finding Rogers guilty on all

eight of the above-named counts, as well as on the single attempted rape specification.

Following the return of the jury's verdict, the trial court proceeded to sentencing. The trial

court merged Counts 1, 2 and 3 as allied offenses of similar import. Upon the trial court's

merger, the state elected to proceed with sentencing Rogers on Count 1. This count, as

set forth above, charged Rogers with first-degree felony rape in violation of R.C.

1. R.C. 2941.1419(A), which sets forth the attempted rape specification attached to Count 2, "mandates an indefinite prison term of ten years to life when an offender is convicted of attempted rape and the victim is under ten years old at the time of the offense." State v. Dix, 8th Dist. Cuyahoga No. 112458, 2023-Ohio- 4123, ¶ 3. -2- Warren CA2023-08-063

2907.02(A)(1)(b).2 Based on the state's election, the trial court then sentenced Rogers

on Count 1 to an indefinite mandatory minimum sentence of 15 years to life in prison, less

seven days of jail-time credit, and designated Rogers a Tier III sex offender/child-victim

offender in accordance with R.C. 2950.01(G).

{¶ 5} After imposing this sentence, the trial court then also sentenced Rogers to

serve 60 months in prison on each of the five remaining counts of third-degree felony

gross sexual imposition set forth in Counts 4, 5, 6, 7, and 8 of the indictment. The trial

court ordered each of those five 60-month prison sentences to be served concurrently to

one another and to the indefinite 15-years-to-life prison sentence the trial court had

imposed on Count 1. This is in addition to the trial court notifying Rogers that he would

be subject to a mandatory five-year postrelease control term when, and if, he was ever

released from prison.

Rogers' Appeal and Two Assignments of Error for Review

{¶ 6} On August 17, 2023, Rogers filed a notice of appeal. Following briefing,

oral argument was held before this court on March 11, 2024. Rogers' appeal now properly

before this court for decision, Rogers has raised two assignments of error for review.

{¶ 7} Assignment of Error No. 1:

{¶ 8} DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY

FAILING TO CHALLENGE A BIASED JUROR FOR CAUSE, DEPRIVING ROGERS OF

2. R.C. 2907.02(A)(1)(b) prohibits any person from engaging in "sexual conduct" with another, who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from 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." The term "sexual conduct" is defined by R.C. 2907.01(A) to include "vaginal intercourse" between a male and female. The term "sexual conduct" is also defined by R.C. 2907.01(A) to include "the insertion, however slight, of any part of the body" into the "vaginal opening" of another. "Thus, when the phrases 'vaginal intercourse' and 'vaginal opening' are read together, it is apparent that sexual conduct occurs when there is penetration of the vaginal opening by a penis or other body part." State v. Strong, 1st Dist. Hamilton Nos. C-100484 and C-100486,

. "This necessarily includes digital penetration of the victim's vaginal opening with a finger or fingers." State v. Zamora, 12th Dist. Clermont Nos. CA2022-10-060 and CA2022-11-071,

. -3- Warren CA2023-08-063

HIS RIGHT TO AN IMPARTIAL JURY.

{¶ 9} In his first assignment of error, Rogers argues his trial counsel was

ineffective for failing to challenge for cause an alleged "biased juror," Juror McCarthy,

pursuant to R.C. 2313.17(B)(9).3 This failure, according to Rogers, deprived him of a fair

and impartial jury guaranteed to him by the Sixth and Fourteenth Amendments to the

United States Constitution. We disagree.

Ineffective Assistance of Counsel Standard

{¶ 10} "Counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment." State

v. Burns, 12th Dist. Clinton No. CA2013-10-019,

. Given this

presumption, "[t]to prevail on an ineffective assistance of counsel claim, an appellant must

satisfy the two-prong test set forth in Strickland v. Washington,

,

(1984)." State v. Ford, 12th Dist. Madison No. CA2019-10-027,

. "[U]nder Strickland, in order to prevail on a claim that counsel was ineffective, a

criminal defendant must show (1) that his counsel's performance was deficient and (2)

that that performance prejudiced him." State v. Simpson,

, 2020-Ohio-

6719, ¶ 18, citing

. This requires the reviewing court to "determine

whether the totality of circumstances supports a finding that counsel's performance was

deficient, and if so, whether the deficient performance was prejudicial to the defendant."

State v. Romero,

,

. "The failure to make an

adequate showing on either prong is fatal to an ineffective assistance of counsel claim."

State v. Jewell, 12th Dist. Warren No. CA2021-09-080,

.

{¶ 11} "Trial counsel's performance is considered deficient where 'that counsel's

3. Although identified by just his last name, we have nevertheless changed the name of the juror in question for purposes of issuing this opinion. -4- Warren CA2023-08-063

performance fell below an objective standard of reasonable representation * * *.'" State

v. Zamora, 12th Dist. Clermont Nos. CA2022-10-060 and CA2022-11-071, 2023-Ohio-

1847, ¶ 21, quoting State v. Drain,

,

. Therefore,

to establish deficient performance, the "appellant must show that counsel made errors so

serious that counsel failed to function as the 'counsel' guaranteed by the Sixth

Amendment." State v. Hamblin,

(1988), citing Strickland,

. "Trial counsel's deficient performance is deemed prejudicial where there

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

have been different.'" State v. Elcess, 12th Dist. Warren No. CA2023-01-005, 2023-Ohio-

2820, ¶ 22, quoting State v. Lawson,

,

.

Accordingly, to establish prejudice, the appellant must show "'that counsel's errors were

so serious as to deprive [him] of a fair trial, a trial whose result is reliable.'" State v. Cepec,

,

, quoting Strickland.

What Rogers Must Establish to Prove His Trial Counsel was Ineffective

{¶ 12} Given these principles, in order for Rogers to establish that his trial

counsel's performance was deficient in this case, Rogers must establish that his trial

counsel's performance was objectively unreasonable in light of his trial counsel's failure

to challenge for cause the alleged "biased juror," Juror McCarthy, pursuant to R.C.

2313.17(B)(9).4 See State v. Bates,

,

, citing

Hughes v. United States,

(6th Cir. 2001). As for prejudice, Rogers must

establish that there exists a reasonable probability that his trial counsel's failure to

4. R.C. 2313.17(B)(9) sets forth one of the nine enumerated "good causes" for challenging any person called as a juror. State v. Carter, 7th Dist. Mahoning No. 15 MA 0225,

. Specifically, "R.C. 2313.17(B)(9) provides that a prospective juror may be excused for cause when that person 'discloses by the person's answers that the person cannot be a fair and impartial juror or will not follow the law as given to the person by the court.'" Long v. Harding, 12th Dist. Butler No. CA2020-11-120,

. -5- Warren CA2023-08-063

challenge Juror McCarthy for cause deprived him of a fair and impartial jury guaranteed

to him by the Sixth and Fourteenth Amendments to the United States Constitution. To do

this, Rogers must show that Juror McCarthy was, in fact, actually biased against him.

citing State v. Mundt,

,

, ¶ 67.

{¶ 13} "'Actual bias is "bias in fact"—the existence of a state of mind that leads to

an inference that the person will not act with entire impartiality.'"

quoting United States

v. Torres,

(2d Cir. 1997), citing United States v. Wood,

,

(1936). "Actual bias can be found from a juror's express admission or from

circumstantial evidence of the juror's biased attitudes." Id. at ¶ 26, citing

.

For example, courts have found actual bias where a juror unequivocally stated that she

could not be fair due to law-enforcement bias, when a juror had a fixed opinion of the

defendant's guilt based on pretrial publicity, when a juror expressed views on the death

penalty that prevented or substantially impaired him from performing his duties as a juror,

and where a Caucasian juror revealed in her jury questionnaire a blatant racial bias

against Black people in a case where the defendant was Black. Id. at ¶ 26, 37.

The Deficiency Prong

{¶ 14} As for the first prong of the two-part Strickland test, the deficiency prong,

Rogers argues that his trial counsel "performed deficiently" by failing to challenge for

cause the alleged "biased juror," Juror McCarthy, pursuant to R.C. 2313.17(B)(9). The

crux of this case, however, is not whether Rogers' trial counsel was deficient for failing to

challenge Juror McCarthy for cause. This is because, as this court's research on this

issue indicates, trial counsel's failure to challenge a juror who is actually biased against

their client would, in nearly every conceivable circumstance, constitute deficient

performance that falls below an objective standard of reasonable representation. This

-6- Warren CA2023-08-063

holds true even though, as noted by the Ohio Supreme Court, "'[f]ew decisions at trial are

as subjective or prone to individual attorney strategy as juror voir dire, where decisions

are often made on the basis of intangible factors.'" Mundt,

at ¶ 64,

quoting Miller v. Francis,

(6th Cir. 2001).

{¶ 15} "'[T]he decision whether to seat a biased juror cannot be a discretionary or

strategic decision.'" State v. Froman,

,

, quoting

Miller v. Webb,

(6th Cir. 2004). "If counsel's decision not to challenge

a biased venireperson could constitute sound trial strategy, then sound trial strategy

would include counsel's decision to waive, in effect, a criminal defendant's right to an

impartial jury." Hughes,

, citing United States v. Martinez-Salazar,

,

(2000) (holding that the seating of a biased juror who should

have been dismissed for cause requires reversal of the conviction). "[T]here is no sound

trial strategy that could support what is essentially a waiver of a defendant's basic Sixth

Amendment right to trial by an impartial jury." Miller,

. Therefore, rather

than the first prong of the two-part Strickland test, the deficiency prong, it is instead that

test's second part, the prejudice prong, that requires this court's attention.

The Prejudice Prong

{¶ 16} As stated previously, in order to satisfy the second prong of the two-part

Strickland test, Rogers must establish that there exists a reasonable probability that his

trial counsel's failure to challenge for cause the alleged "biased juror," Juror McCarthy,

deprived him of a fair and impartial jury. To do this, Rogers must show that Juror McCarthy

was, in fact, actually biased against him.

{¶ 17} Rogers argues that Juror McCarthy was actually biased against him, "and

this was apparent from the start of the trial court's questioning." To support this claim,

-7- Warren CA2023-08-063

Rogers points to several instances in the trial transcript where Juror McCarthy admitted

during voir dire that he had concerns about his ability to remain fair and impartial given

the disturbing nature of the charges for which Rogers had been accused. This includes

Juror McCarthy stating, "I might have a hard time with it," in response to the trial court

asking the original 13 prospective jurors seated in the jury box whether any of them would

have any problem with "deciding what the truth is in this case," and determining whether

the state had proven its case beyond a reasonable without applying "sympathy" and

"prejudice," but instead being "fair when you're evaluating this case," when considering

much of the state's evidence would be based on the testimony from a "child witness."

{¶ 18} This also includes Juror McCarthy stating, "It's a good question. I don't have

an answer for you," when specifically asked by the trial court whether he could follow the

trial court's instructions, including those instructions related to the presumption of Rogers'

innocence and the application of the proof-beyond-a-reasonable-doubt standard

necessary to prove Rogers' guilt, knowing that he was "having a hard time" with this case

given the state's case was largely dependent on testimony from a child witness who he

tended to "just want to favor," or whether he could "put that aside and listen to the

evidence and be fair."

{¶ 19} This further includes Juror McCarthy stating, "I'd say it'd be hard for me to

say that he's not guilty," and "people don't wind up here from not doing anything," when

asked by Rogers' trial counsel what his verdict would be right then, guilty or not guilty,

"knowing that there's a presumption of innocence," that Rogers was "innocent as he sits

here right now, what would your verdict be?"5 This is in addition to Juror McCarthy

5. We note that, in response to Juror McCarthy's statement that "people don't wind up here from not doing anything," Rogers' trial counsel stated, "Okay. That⎯that's what's going on in your head. That's an honest statement." -8- Warren CA2023-08-063

agreeing with the state that this type of case, a case involving the alleged sexual abuse

of a child by a close family member, was not his "kinda case" and that he was "sure" the

rest of the jury felt the same way.

{¶ 20} However, upon review, we disagree with Rogers' characterization of the

record. That is to say, we disagree with Rogers' assertion that the record in this case

firmly establishes that Juror McCarthy exhibited an actual bias against him. Rather, upon

a thorough review of the record in this case, including an extensive review of the voir dire

transcript, we find Juror McCarthy's statements set forth above are nothing more than

Juror McCarthy verbalizing the internal struggle he was facing in determining whether he,

or anybody else, could honestly be expected to be remain fair and impartial while

empaneled on a jury tasked with determining the guilt or innocence of a man accused of

sexually abusing a child and close family member. Juror McCarthy's struggle is certainly

understandable, and his honesty in answering the difficult questions posed to him as a

prospective juror commendable, and in no way indicative of an actual bias against

Rogers. This is particularly true here when considering Juror McCarthy later responded

"10" when asked by Rogers' trial counsel, "How important on a scale of one to 10 is it to

be honest, just generally?"

{¶ 21} What is more, and what simply cannot be ignored, is the numerous

occasions in which Juror McCarthy, as part of the original 13 prospective jurors seated in

the jury box, agreed that he not only could, but would, remain fair and impartial if he was

ultimately selected to serve as a juror in this case. This also included the several

instances in which all 13 prospective jurors, including Juror McCarthy, expressly stated

that they would follow the trial court's instructions and would not "change the law or apply

your own idea of what you think the law should be." For example, when the prosecutor

remarked that "[i]t is very important to follow the law that the Judge gives you on what I

-9- Warren CA2023-08-063

have to prove to you," which the prosecutor followed up by asking whether "everybody

here was willing to do that," the record indicates that the 13 prospective jurors responded

"affirmatively." This included Juror McCarthy. The record indicates that Juror McCarthy

also responded "affirmatively" when specifically asked by the prosecutor whether he

could fulfill his duties if he were selected to be a juror in this case because he would have

to "sit in judgment, right, and you're asked to do the right thing." This would necessarily

include Juror McCarthy following the trial court's instructions in regard to presumption of

Rogers' innocence and the proof-beyond-a-reasonable-doubt standard the state would

need to overcome in order to establish Rogers' guilt.

{¶ 22} In light of the foregoing, and while it may be true that Juror McCarthy did

express some hesitancy regarding his own ability, and the ability of any of the other 12

prospective jurors then seated with him in the jury box, to remain fair and impartial while

empaneled on a jury that was tasked with determining the guilt or innocence of a man

accused of sexually abusing a child and close family member, Juror McCarthy never

stated that he either could not, or would not, be fair and impartial if he was selected as a

juror in this case. See, e.g., State v. Miller, 12th Dist. Butler No. CA2009-04-106, 2010-

Ohio-1722, ¶ 27, 35 (finding appellant's trial counsel was not ineffective for failing to use

a peremptory challenge against an alleged biased juror where the record did not support

appellant's claim that juror was actually biased against the appellant despite the juror

expressing some "hesitation" as to whether the juror could be unbiased in rendering a

verdict in a case where appellant was charged with shaking and severely injuring his days

old infant daughter). The record indicates that Juror McCarthy had in fact stated the exact

opposite.

{¶ 23} "Where jurors demonstrate during voir dire that they are able to remain fair

and impartial, no action will lie for ineffective assistance of counsel for not seeking their

- 10 - Warren CA2023-08-063

removal." State v. Burns, 12th Dist. Clinton No. CA2013-10-019,

.

Such is the case here. Therefore, because Rogers did not establish that Juror McCarthy,

because of his partiality or biases, was incapable and unwilling to decide the case based

solely on the evidence presented at trial, Rogers has not established that there exists a

reasonable probability that his trial counsel's failure to challenge Juror McCarthy for cause

pursuant to R.C. 2313.17(B)(9) deprived him of a fair and impartial jury. See Bates, 2020-

Ohio-634 at ¶ 25 (noting that, to prevail on his ineffective assistance of counsel claim,

appellant "must prove that at least one of the jurors at his trial, because of the juror's

partiality or biases, was not 'capable and willing to decide the case solely on the evidence'

before that juror"), quoting Smith v. Phillips,

,

(1982).

Accordingly, Rogers' first assignment of error lacks merit and is overruled.

{¶ 24} Assignment of Error No. 2:

{¶ 25} THE PROSECUTOR COMMITTED MISCONDUCT THROUGH HIS

IMPROPER COMMENTS THROUGHOUT THE TRIAL.

{¶ 26} In his second assignment of error, Rogers argues the prosecutor committed

prosecutorial misconduct by making improper comments throughout trial, thereby

mandating his conviction be reversed and a new trial ordered. We disagree.

Prosecutorial Misconduct Standard

{¶ 27} "For a conviction to be reversed on the basis of prosecutorial misconduct,

a defendant must prove the prosecutor's acts were improper and that they prejudicially

affected the defendant's substantial rights." State v. Warnock, 12th Dist. Madison No.

CA2023-02-001,

, citing State v. Elmore,

, 2006-

Ohio-6207, ¶ 62. "To demonstrate prejudice, a defendant must show that the improper

acts were so prejudicial that the outcome of the trial would clearly have been different had

- 11 - Warren CA2023-08-063

those improper acts not occurred." State v. Kaufhold, 12th Dist. Butler No. CA2019-09-

148,

. "The focus of an inquiry into allegations of prosecutorial

misconduct is upon the fairness of the trial, not upon the culpability of the prosecutor."

State v. Combs, 12th Dist. Clermont No. CA2020-01-004,

. A

prosecutor's alleged misconduct "is not grounds for error unless the defendant has been

denied a fair trial." State v. Olvera-Guillen, 12th Dist. Butler No. CA2007-05-118, 2008-

Ohio-5416, ¶ 27. "Therefore, a finding of prosecutorial misconduct will not be grounds

for reversal unless the defendant has been denied a fair trial because of the prosecutor's

prejudicial conduct." State v. Carpenter, 12th Dist. Clinton No. CA2022-02-005, 2023-

Ohio-2523, ¶ 95. This is because a defendant is only "guaranteed a fair trial, not a perfect

one." State v. Miller, 12th Dist. Preble No. CA2019-11-010,

.

Rogers' Arguments and Analysis

{¶ 28} As noted above, Rogers argues the prosecutor committed prosecutorial

misconduct by making improper comments throughout his trial. Rogers claims these

improper comments began during voir dire when the prosecutor stated that, in "almost all

of my cases, [the] sexual assault[] occurred by someone who kn[e]w the child, right?"

Rogers claims the prosecutor's improper comments then continued a short time later

when the prosecutor stated during voir dire that, in his experience, it was "pretty common"

for victims of sexual assault to "freeze" while being assaulted rather than to run away or

fight off their attacker. Rogers claims the prosecutor's improper comments also included

the prosecutor stating, "I've had very few cases where a child was sexually assaulted and

witnessed by another person." However, upon review of the record, we do not find the

prosecutor's comments, whether improper or not, to be so prejudicial that the outcome of

Rogers' trial would clearly have been different had the prosecutor not made any of the

- 12 - Warren CA2023-08-063

comments that he did.

{¶ 29} In reaching this decision, we note that the prosecutor's comments were

made colloquially, and in a conversational manner, during a time when the prosecutor

was admittedly trying to make the 13 prospective jurors then seated in the jury box

"uncomfortable" in hopes that they would open up and speak to him more freely when

answering his voir dire questioning. The challenged comments made by the prosecutor

did not accuse Rogers of committing the charged offense or show the prosecutor's

personal belief as to Rogers' guilt or innocence of the crimes charged. The prosecutor's

comments also did not express his personal belief or opinion as to the credibility of any

witness. This includes the credibility of the alleged child victim. Therefore, although we

question the prosecutor's tactics, we find the prosecutor's statements set forth above

were nothing more than isolated, generally benign statements that did not undermine the

overall fairness of Rogers' trial. Rogers' argument otherwise lacks merit.

{¶ 30} Rogers argues the prosecutor also committed prosecutorial misconduct

during his direct examination of the child victim. To support this argument, Rogers claims

that it was improper for the prosecutor to ask the victim, "Did you tell the grand jury the

truth about what had happened?" Rogers claims this question was improper in that it

"bolstered" the victim's credibility based upon evidence that "was not and could not be

presented at trial." Surely, it would be improper for the prosecutor to "bolster the

testimony of a witness with statements of his or her personal belief in the credibility of the

witness's testimony." State v. Elliott, 8th Dist. Cuyahoga No. 91999,

, ¶

42. It would also be "improper for an attorney to vouch for the evidence by implying

knowledge of facts outside the record." State v. Ruggles, 12th Dist. Warren Nos. CA2019-

05-038 and CA2019-05-044 thru CA2019-05-046,

. But, when

taken in context, the prosecutor's question posed to the child victim about whether she

- 13 - Warren CA2023-08-063

had testified truthfully to the grand jury was merely a part of a long line of questions meant

to show the victim's testimony elicited at trial was consistent in that it contained the same

allegations against Rogers that the victim had initially told to her mother, allegations that

her mother then confronted Rogers with directly, as well as what the victim had told the

social worker who interviewed her at a local child advocacy center. Therefore, in this

context, we cannot say the prosecutor's question was improper.

{¶ 31} Regardless, even if we were to find the prosecutor's question improper, this

was one, single question, that was brief in both the amount of time it took the prosecutor

to ask the question, as well as the length of time it took the child victim to answer. What

is more, shortly after this question was asked, the victim was then subject to cross-

examination by Rogers' trial counsel. This included many questions that were intended

to call into question the child victim's credibility and veracity in regard to the allegations of

sexual abuse that she had levied against Rogers. Therefore, as the trier of fact, the jury

had ample opportunity to assess the child victim's credibility by witnessing for itself the

victim testifying about the alleged sexual abuse she claimed Rogers had perpetrated

against her, independent of any improper witness vouching that may have taken place by

the prosecutor. See State v. Sanchez-Garza, 12th Dist. Butler No. CA2016-02-036, 2017-

Ohio-1234, ¶ 48. Accordingly, while we again question the prosecutor's tactics, we find

the prosecutor's question set forth above was nothing more than one, isolated question

that did not undermine the overall fairness of Rogers' trial. Rogers' argument otherwise

again lacks merit.

{¶ 32} Rogers further argues the prosecutor committed prosecutorial misconduct

during his rebuttal closing argument. To support this argument, Rogers initially claims

that it was improper for the prosecutor to state at the start of his rebuttal that he was "sure"

the child victim was not confused about what she claimed Rogers had done to her.

- 14 - Warren CA2023-08-063

However, upon review, we again find ourselves in disagreement with how Rogers

characterizes the record. What the prosecutor actually stated, when read in conjunction

with the rest of the words in that sentence, and the other sentences making up that

paragraph, was the following:

I get a chance to respond. I promise I will not talk long. I want to respond to some specific things that [Rogers' trial counsel] brought up. One, [the child victim] is not confused. She is not confused. I really⎯I think during this argument was the first time I heard that apparently [the victim] was so traumatized by the touching that [another family member] did that she apparently became hallucinatory or something. I'm sure where that⎯[the victim] is not confused. This is the thing I want you to take from this. Every question, every suggestion that [Rogers' trial counsel] made, he had the opportunity to ask [the child victim] about, and he didn't. You know you asked her those questions? I did. Because you know that she's not confused.

[Rogers' trial counsel] could have asked [the victim], didn't you make this up? He didn't. [Rogers' trial counsel] could have asked her, aren't you confusing [Rogers] with [this other family member]? But he didn't. He doesn't want to hear what [the victim's] answers are. He wants to just throw suggestions out to you and I've kind of lost counting how many there are.

(Emphasis added.)

{¶ 33} When reviewing the italicized language set forth above, this was clearly an

attempt by the prosecutor to state, "I'm [not] sure where that [idea came from]. [The

victim] is not confused," and not, as Rogers suggests within his appellate brief, the

prosecutor stating, "I'm sure * * * [the victim] is not confused." To claim otherwise, like

Rogers does in his appellate brief, is to completely ignore the words "where that" and the

context in which those words were actually spoken by the prosecutor in this case.

Therefore, when read in its proper context, such a statement was not improper and cannot

form the basis of a prosecutorial misconduct claim. Rogers' claim otherwise lacks merit.

{¶ 34} Regardless, even if we were to assume Rogers' reading of the record was

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correct, it is well established that, in closing argument, "[a] prosecutor may bolster his

witnesses, may state that the evidence supports the conclusion that his witnesses are

telling the truth, and may, in his rebuttal, state that the evidence does not support the

defense's conclusions or that certain witnesses are more or less believable." State v.

Cisternino, 11th Dist. Lake No. 99-L-137,

, *14-*15 (Mar. 30,

2001). More specifically, in rebuttal, the prosecutor may:

argue that the evidence does not support the conclusion postulated by defense counsel. He may comment upon the circumstances of witnesses in their testimony, including their interest in the case, their demeanor, their peculiar opportunity to review the facts, their general intelligence, and their level of awareness as to what is going on. He may conclude by arguing that these circumstances make the witnesses more or less believable and deserving of more or less weight.

State v. Fether, 5th Dist. Stark No. 2011-CA00148,

, quoting State

v. Draughn,

(5th Dist. 1992).

{¶ 35} While certainly unartfully done, when the challenged statement is reviewed

in context, that was essentially what the prosecutor was doing in this case. That is to say,

by claiming the child victim was not confused about what Rogers had done to her, the

prosecutor was doing nothing more than arguing that the evidence did not support the

conclusion postulated by Rogers' trial counsel. That being, Rogers' trial counsel's

argument that the victim had become so traumatized by what another close family

member had done to her that she believed the allegations of sexual abuse that she had

levied against Rogers were true when they were not. Therefore, when taken in its proper

context, we find the prosecutor's statement set forth above was neither improper nor was

the prosecutor's statement prejudicial so as to affect Rogers' substantial rights. The

prosecutor's comment was instead permissible commentary based on the evidence

properly admitted at trial. Rogers' argument otherwise lacks merit.

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{¶ 36} Rogers lastly argues the prosecutor committed prosecutorial misconduct by

telling the jury that the child victim had been consistent in the allegations she had levied

against him "over and over again." Rogers argues that this statement was improper

because the prosecutor was "referring to [the victim's] grand jury testimony, and expressly

telling the jury that the witness's testimony was corroborated by evidence known to the

government but not known to the jury." But, just as before, we once again find ourselves

in disagreement with how Rogers characterizes the record. What the prosecutor actually

stated, when the words "over and over again" are read in conjunction with the rest of the

prosecutor's words used in that sentence, and the other sentences making up that portion

of the prosecutor's rebuttal, was the following:

[The victim] knows who [the other family member who abused her] is and [she] knows who [Rogers] is. [The victim] knows what [the one family member] did to her and she knows what [Rogers] did to her. [The victim] is not impressionable. Even her own grandmother had to admit that she's pretty smart. You had plenty of opportunity to see her. I agree, yes, that she was sheltered. And that's important because what's the⎯you know, available information for the detailed descriptions of abuse that happened to her.

But you want to talk about fanciful, I can't even imagine what it would take to try to convince an eight-year-old child to repeat over and over again, consistently abuse in that level of detail. That's fanciful.

(Emphasis added.)

{¶ 37} "[I]t is well established that a prosecutor's latitude in closing argument is

wider on rebuttal where the prosecutor has room to respond to closing arguments of

defense counsel." State v. King, 12th Dist. Clermont No. CA2022-01-001, 2022-Ohio-

3388, ¶ 50, citing State v. Farwell, 12th Dist. Clermont No. CA2001-03-041,

, *32 (Apr. 22, 2002). Therefore, when taken in its proper context, we

find the prosecutor's statement set forth above was neither improper nor was the

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prosecutor's statement prejudicial so as to affect Rogers' substantial rights. The

prosecutor's comment, while possibly alluding to the victim's grand jury testimony as one

example of the child victim's consistent, unwavering allegations of sexual abuse that she

had levied against Rogers, was permissible commentary based on the arguments

advanced by Rogers' trial counsel during counsel's own closing argument. That being,

rather than the "fanciful" or "hallucinatory" allegations of a confused child, the child

victim's allegations of sexual abuse against Rogers were consistent in that the victim's

allegations repeatedly accused Rogers of sexually abusing her in the same manner and

on multiple occasions over a period of several years while in Warren County, Ohio

between January 1, 2019 and August 2, 2022. Accordingly, because we find no merit to

any of the arguments advanced by Rogers herein, Rogers' second assignment of error

also lacks merit and is overruled.

Conclusion

{¶ 38} For the reasons outlined below, and finding no merit to any of the arguments

advanced here in in support of Rogers' two assignments of error, Rogers' appeal

challenging his conviction for one count of first-degree felony rape and five counts of third-

degree felony gross sexual imposition of a child who, at all times relevant, was under the

age of ten years old, is denied.

{¶ 39} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

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