State v. Royster , 2015 Ohio 3608 ( 2015 )

[Cite as State v. Royster, 2015-Ohio-3608.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 25870
:
v. : T.C. NO. 12CR1272
:
JOSEPH A. ROYSTER : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the __4th__ day of __September___, 2015.
...........
ANDREW T. FRENCH, Atty, Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT L. MUES, Atty. Reg. No. 0017449 and CHARLES W. MORRISON, Atty. Reg.
No. 0084368, 1105 Wilmington Avenue, Dayton, Ohio 45420
Attorneys for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Joseph Royster,
filed August 19, 2013. Royster was convicted, on August 20, 2013, following a jury trial,
on two counts of rape of a child under ten years of age, in violation of R.C.
2907.02(A)(1)(b), felonies of the first degree, and one count of endangering children
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(corporal punishment), in violation of R.C. 2919.22(B)(3), a felony of the third degree.
The trial court dismissed a third count of rape after Royster made a Crim.R. 29 motion for
acquittal at the close of the State’s case. Royster received concurrent sentences of 15
years to life on the rape counts, and 36 months on the endangering children offense, for
an aggregate sentence of 15 years to life.1 Royster was also designated a Tier 3 sex
offender. The victim herein, J.J., who was born in July, 2002, is the daughter of Royster’s
girlfriend.
{¶ 2} On December 23, 2013, appointed counsel for Royster filed an appellate
brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), alleging that no arguably meritorious issues existed for appeal. On March 24,
2014, Royster filed a pro se brief. On October 3, 2014, this Court determined that
potentially meritorious issues did exist for purposes of appeal, namely whether there was
sufficient evidence to sustain a conviction for child endangerment, whether there was
sufficient evidence of penile penetration to sustain the rape conviction on count two, and
whether Royster’s convictions of rape and child endangerment are against the manifest
weight of the evidence. This Court appointed new counsel to analyze these issues as
well as any additional assignments of error recognized after a thorough review of the
entire record.
{¶ 3} The following evidence was adduced at trial. Terry Stevenson testified that
she is a “registered play therapist” at the Mental Health Clinic in Troy, and that she began
treating J.J. around August of 2012. She stated that she sees J.J. “about once a month,”
and that she has seen her 15 times. Stevenson stated that she and J.J. were “working
1
The record reflects that in the course of plea negotiations, the State offered an agreed
sentence of ten years, which Royster rejected.
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on sexual abuse to help her work through it. She was having nightmares. She was
having flashbacks. * * * She couldn’t sleep, she was so afraid. * * * She’s just really been
trying to work through all those feelings so that she doesn’t have to be in constant fear.”
Stevenson stated that J.J. at one time “had thought about hanging herself.” Stevenson
stated that she has worked with sexually abused children most of her career, and that
J.J.’s behavior and symptoms are “very consistent” with those of other children who have
disclosed sexual abuse. Stevenson testified that J.J. told her that Royster told her that
he would have to leave their home if she disclosed the abuse to anyone.
{¶ 4} Stevenson stated that J.J. also disclosed an episode of sexual abuse
involving two young boys. On cross-examination, Stevenson stated that J.J. disclosed
the incident in January, 2013, and that the boys were 11 and 12 years old. The following
exchange occurred:
Q. And you said she was fairly graphic with that? She called it a
tower? They formed a tower?
A. Yes.
Q. * * * And she was bent over the bed when one boy had his penis
inserted into her anus. Is that correct?
A. Yes. Yes.
Q. And I think the other boy was inserting his penis into the other
boy’s anus. Is that correct?
A. I believe so.
{¶ 5} Lori Vavul-Roediger testified that she is a pediatrician employed at Dayton
Children’s Hospital as the medical director for the Department of Child Advocacy. She
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stated that she is board certified in general pediatrics as well as in child abuse pediatrics,
and the court designated Vavul-Roediger an expert in those areas. Vavul-Roediger
testified that she examined J.J. on April 17, 2012, and that she spoke with J.J.’s maternal
grandmother, J.B., with whom J.J. resided. According to Vavul-Roediger, J.J.
“spontaneously,” and not in response to questioning, told her in the course of her
examination that she does not like to wear dresses and expose her legs because of
scarring there. She stated that J.J. told her that one scar on her left knee was from falling
down, and when asked about visible linear scaring on her right thigh, she “sort of
shrugged and said, I don’t know, and didn’t respond otherwise.” Vavul-Roediger stated
that she was concerned about the linear scarring due to the “patterned nature of the
scarring on her legs in that I was worried that they may not be accidental in nature based
on their characteristics, their pattern, their placement on her leg. They didn’t seem to be
a typical location nor a type of injury that would typically result from routine activity in an
active child.” Vavul-Roediger testified that she asked J.J. “if she had ever been hurt by
anyone,” and that J.J. “looked down and said, my mom’s boyfriend hit me with a belt * * *
and the buckle on my legs.” Vavul-Roediger testified that she asked J.J. “if she had any
specific marks on her legs that could have been caused by being hit with a belt or buckle.
She said, I don’t know, he just hit me on my legs.” Vavul-Roediger stated that she has
observed scars on children inflicted by a belt in her experience, and she acknowledged
that there could be a substantial risk of scarring if a child were beaten with a belt.
{¶ 6} Vavul-Roediger testified that she asked J.J. if Royster hurt her in any other
way, and she testified as follows:
* * * And she was quiet and said, yes. I asked her if it was hard to
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talk about and she said, yes. I asked [J.J.] if she could show where on her
body she had been hurt by Joseph and she put her hand over her genital
area and said, my privates.
I asked her if she could explain what had happened to her privates
and she said, I don’t want to tell you with all these people in the room and
referenced the nurse and a training medical student who was in the room
with me. So we asked those parties to be excused from the room * * * and
they exited. And her Grandmother remained behind at [J.J.’s] request.
Grandmother made no comment during this entire time and sat silently on
the chair.
And I asked her, at this time, if she would be willing and would like to
tell me what had happened and she said yes, now that the other folks had
left the room.
Q. Was she able to tell you, at that point, or did you do some other
activities with her first?
A. I asked nothing else and she began to talk.
Q. What did she tell you?
A. [J.J.] said, Joseph touched me on my privates. He put his
private in my private. And I asked her did anything else happen, thinking
that she might be able to report something general in terms of any other
type of contact. And she said he had a plastic bag on his private. And I
clarified with her * * * what she meant because I was rather surprised. And
she, again clarified that Joseph had a plastic bag on his private when he
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had put his private in her private.
And I asked her what it felt like to her body when Joseph put his
private in her private, and [J.J.] said it hurt, it hurt to pee after. I asked her
if anything else happened and [J.J.] said, he put his finger in my private; he
went like this - - inside my private. And she motioned with her finger in the
air in circles, demonstrating that. And she continued to talk and said, his
nail is long and when I peed, it hurt. * * *
I asked her if Joseph told her anything about what happened and
[J.J.] said, he told me not to tell. And I asked her if Joseph had, by chance,
told her what would happen if she told. And [J.J.] said, he said he would
get in trouble with my mom and she would not date him anymore. I asked
her if anyone else besides Joseph had ever touched her or hurt her privates
in any way and [J.J.] said no.
We talked about who she could talk to if she was worried or scared,
and she said, my grandma. * * *
{¶ 7} Vavul-Roediger testified that after talking with J.J., she performed a
physical and genital exam. She stated that “there was one area on [J.J.’s] hymen that
had what we call a notch or an area where there was essentially a depression, sort of a
U-shaped scooped out depression.” According to Vavul-Roediger, “the notch was noted
to sort of, what we call persist or stay in two different exam positions,” namely a “supine
position on the back,” and “in what we call a prone or knee-chest position.”
Vavul-Roediger noted that she had not examined J.J. prior to the alleged sexual abuse,
and that she did not know if “this notch was something that was previously there or not.”
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She stated that the notch, by itself, is “essentially, diagnostically, something of
indeterminate significance.” The following exchange occurred:
Q. Did [J.J.] express any other symptoms to you, like having
problems falling asleep at night or anything of concern for her safety or
anything like that?
A. There * * * were several other issues. She has been - - or had,
rather, been complaining, I guess of stomachaches that her care provider
felt was due to her anxiety and feeling nervous. She had reportedly had a
decline in her academic performance for several months. Had been
perceived by her care provider as being very anxious and clingy. Having
difficulty sleeping, wanting to sleep with her primary care provider.
Reporting that she would constantly check household doors and
windows to make sure that they were locked. Very fearful that her
biological mother would return to take her back to the home setting where
the alleged perpetrator resided. And said that she was also very fearful
and worried about other parties coming, you know, to understand. Like
I’m assuming school and other family and friends to learn what had
happened to her. * * *
So she was having a great deal of anxiety and a lot of symptoms of *
* * hyper-vigilance. * * * So lots of concerns for, * * * possible post-traumatic
type symptoms as well.
Q. And, again, in and of themselves, those symptoms can’t say for
sure abuse happened but are they supportive of a disclosure, clear
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disclosure of abuse?
A. The symptoms, themselves, if someone said I have a child who
is clingy and anxious and can’t sleep and checks windows. I’m not going to
go, oh. Well, that’s a child who’s sexually abused, by no means. But
clearly, when you look at the constellation of everything that this little child
has, unfortunately, and that you understand what is most clear and
paramount, that she’s giving a very, very clear disclosure of being sexually
abused. Yes, her symptoms are supportive of what she reports has
occurred to her.
Q. * * * Doctor, * * * you’re not here to give an expert opinion on the
truthfulness of what the child’s saying?
A. No, I’m not here to say that whatsoever. I’m saying that she
clearly reports being sexually maltreated. Her symptoms clearly are
supportive of what she reports.
Finally, Vavul-Roediger testified that the linear scarring on J.J.’s legs “could be”
consistent with being hit with a belt.
{¶ 8} On cross-examination, Vavul-Roediger testified that according to the history
provided by J.J.’s grandmother, J.J. resided in the same home with Royster from 2010 to
the spring of 2011, when she then resided with her grandmother. When asked if she
herself had observed any of the behaviors indicative of J.J.’s anxiety as reported by J.J.
and her grandmother, Vavul-Roediger replied that she observed that J.J. “was anxious,
she was fearful, she was emotionally distraught. She was afraid. Plain and simple.
This was not an easy thing for her just to disclose. And it was clear that this little girl was
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very, very afraid when sharing what she shared with me about this man.”
Vavul-Roediger testified that she understood the word “private” to refer to J.J.’s vagina,
“because she had previously put her hand over her genital area and called it her private.”
Vavul-Roediger stated that someone who has not been sexually abused could have a
hymeneal notch. She stated that J.J. “had a notch that was a deep notch at 7 to 8 o’clock,
which is a particular area on her hymen. This deep notch that was there, it is not acute,
meaning it’s not a fresh notch, * * * there was no bleeding or bruising associated with it. I
can’t tell you how long that notch has been there. * * *.” She further clarified that she
“can’t tell you the specific reason the notch is there. I can tell you it’s an indeterminate
finding that could be supportive of this child’s disclosure, of digital-vaginal penetration and
penile-vaginal penetration. It is not a normal exam.” Regarding the scars on J.J.’s right
thigh, Vavul-Roediger stated that there were two separate, hyperpigmented scars next to
each other that were about a centimeter-and-a-half in length. On redirect,
Vavul-Roediger stated that the “majority of patients we see, as this child was seen, days,
weeks, months, perhaps longer, after an alleged incident or incidents of sexual abuse
have normal exams.”
{¶ 9} J.J.’s grandmother, J.B., testified that J.J. and her little brother came to live
with her in April of 2011, after J.J.’s mother dropped them off at her home. J.B. testified
that she observed that J.J “was little quieter and she didn’t play with my other
granddaughter as much as she used to.” According to J.B., one Sunday she “was in the
washing room and [J.J.] came out and she was crying in the kitchen, sitting in a chair, just
balled up in a chair. And I kept asking her what was wrong and she would never say
anything because she was crying real hard, and then, finally, she told me, Joe.” J.B.
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stated that J.J. did not tell her details of what had happened but that she gradually, over
time, disclosed the abuse. J.B. stated that in the first week of March, 2012, she
contacted the Piqua police based upon J.J.’s disclosure. J.B. stated that she was
present when J.J. provided information to the police about Royster, and that she later
took J.J. to speak to officers in Dayton, and to Care House. She stated that in January,
2013, J.J. disclosed further abuse by other people. When asked if she was upset with
J.J. for not telling her about the additional abuse, J.B. agreed and responded, “I thought
she would tell me most of anything that happened, but she didn’t tell me about that. But
she said she didn’t want to tell me. I think [J.J.] figured that I had heard enough.” J.B.
stated that J.J. has upset stomachs, that she did not want to come to court, is “clingy” and
has trouble sleeping. She stated that J.J. “always makes sure the door is locked.”
{¶ 10} Officer Paula Craft of the Piqua Police Department testified that on March 2,
2012, she responded to J.B.’s home, and that after meeting with her, she advised J.B. to
bring J.J. to the Piqua police station in Miami County the following day. After talking to
J.J. on the following day, Craft testified that she realized that the offenses alleged by her
to have occurred took place on Salem Avenue in Dayton and Montgomery County, and
that she advised J.B. to take J.J. to speak to an officer in that jurisdiction.
{¶ 11} J.J. testified that she is 11 years old and lives with J.B., her brother, and
two cousins. She stated that when she was eight years old, she lived with her mother in
Troy, and that she later moved to Linda Vista Avenue in Dayton and attended a local
public school. J.J. stated that Royster resided with her, her brother, and her mother at
the Linda Vista address. J.J. stated that her mother worked at night until the early morning
hours, and that she and her brother stayed home with Royster. J.J. testified that on one
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occasion, Royster asked her to come into the room he shared with J.J.’s mother, while her
mother was at work, and that he “told me to pull my underwear down. Then he told me.
He put his hands on my private parts.” The following exchange occurred:
Q. * * * So you’re in that room. He asked you to take down your
underwear. And then what happened?
A. He put his fingers in my private.
Q. * * * Now a lot of people use different terms for different body
parts. Can you - -
A. My front private.
Q. * * *Can you point to the jury where it is?
(Inaudible response)
Q. * * * And when you say inside your private, how did you know it
was on the inside?
A. I could feel it.
Q. How did it feel?
A. It hurt.
Q. * * * Is there any reason if you know, why it hurt? Was there
anything about the Defendant’s fingers that - -
A. He had long fingernails.
Q. * * * After that happened did it continue to hurt afterwards?
A. Yes.
Q. What about when you went to the bathroom?
A. Yes. When I went to school too.
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Q. * * * Now when he did that to you was that the only time he’s ever
touched you or were there any other times he touched you?
A. One more time.
Q. * * * Was that in the same apartment or somewhere else?
A. Same apartment.
Q. And when he touched you the second time where did that
happen? * * *
***
A. His bedroom.
Q. * * * Did he have his clothes on or off when he touched you?
A. Off.
Q. And what part of his body touched what - -
A. His private part in the front.
***
Q. And what did it touch for you?
A. My private part in the front.
Q. * * * And when he touched you was - - did you feel it skin on skin
or was there anything in between?
A. Skin on skin.
Q. * * * Was there anything on his private part?
A. A plastic bag.
***
A. A bag, plastic sandwich bag.
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Q. * * *Did you see where he got that?
A. Off my mom’s dresser.
Q. Did he put that on before he touched you or after he touched
you?
A. Before he touched me.
Q. * * * Now when he touched you with his penis did it touch just - -
well, did it go all the way in, a little bit in, or not in at all?
A. A little bit in.
Q. * * * I want you to look at this tissue box. If this is on the outside
and this is all the way in, can you show like how it went in?
A. About that much.
Q. * * * So it went in just a little bit?
A. Yes.
Q. * * * What happened when it went in just a little bit? Did it hurt?
A. I can - - I don’t know.
Q. * * * Well, what happened?
A. It went in just a little bit, but then he told me it wouldn’t work.
***
Q. * * * How old were you when these things happened? Were you
eight or - -
A. Eight.
***
A. Eight or nine.
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Q. * * * When you were still eight years old did you go live with your
grandma in April of 2011?
A. Yes.
Q. * * * Did the Defendant ever say anything to you about whether
you should talk about this?
A. He said * * * if you tell your mom about it, she will break up with
him.
***
Q. With regard to the Defendant, did he ever discipline you if you
got in trouble?
A. Yes.
Q. What would he discipline you with?
A. A belt.
Q. And when he hit you with a belt what part of your body would he
hit?
A. My butt.
Q. * * * Did he ever hit you on your legs?
A. A little bit sometimes.
Q. * * * Did that ever leave any marks that you remember?
A. Like weps (sic)?
***
Q. Like welts?
A. Yeah.
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{¶ 12} J.J. testified that she did not tell J.B. about the abuse until February of
2012. J.J. testified that after the instant case began, she advised the prosecutor that
while she was still living with her mother and brother, after Royster had abused her, that
other boys, who were the sons of one of her mother’s friend, abused her. According to
J.J., “[t]here were two little boys there and they were my mom’s friend’s son. And * * * we
were in this house and we were playing a video game. * * * He took me inside of his
room with his friend and they tried - - and the little boy tried to make me put my mouth on
his private part, but I didn’t want to. And then the other two boys tried to put their private
parts into my butt.” J.J. stated that she was nine years old when this occurred, and that
the other boys were around her age. J.J. further testified about another incident
involving a 14 year old boy that occurred while she resided with her mom and Royster.
She stated that she was in someone’s basement and the boy “said I had to put my mouth
over his private part to play” video games. J.J. testified that Royster found out about the
incident with the 14 year old boy, and that Royster “said my private part was his.” J.J.
identified photographs of the apartment where she resided on Linda Vista Avenue. J.J.
stated that she has been in therapy since she was ten years old, and that she discusses
her feelings there. When asked how she feels about Royster, she replied, “I don’t like
him and he scares me.”
{¶ 13} On cross-examination, J.J. was asked if she told Officer Craft that Royster
abused her at an address on Salem Avenue, and J.J. indicated that she did not
remember. J.J. acknowledged that she never lived on Salem Avenue in Dayton. The
following exchange occurred:
Q. Now you talked about Joe using a belt and I believe sometimes
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would use it on your - - he used it on your butt and sometimes on your legs,
is that right?
A. Yes.
Q. Do you remember where on your legs?
***
Q. On the tops or the bottom, like - -
A. The top.
Q. * * * And you said that it would sometimes, you would have a
welt?
A. Yes.
Q. * * * do you still have any of those welts?
A. No.
Q. So any of the marks that the belt caused went away?
A. Yes.
{¶ 14} J.J. testified that she was interviewed by Detective Richard Taylor of the
Dayton Police Department at Care House twice, and she testified that she told Taylor in
the first interview that no one else besides Royster had touched her inappropriately, and
she testified that that was not the truth. J.J. stated that the other two incidents that she
described in her direct testimony with the young boys occurred while she resided with her
mother, brother and Royster. She stated that she did not discuss the incidents with her
mother, and that she did not know how Royster found out about the incident involving the
14 year old boy. J.J. stated that in her second interview with Taylor, which occurred after
she had reported the incidents involving the boys to the prosecutor, she told Taylor that
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the two boys wanted her to do something “nasty”, and that one of the boys placed his
penis against her “butt,” but that it did not go inside. J.J. denied telling Stephenson that
the boy’s penis did go inside her “butt.” J.J. acknowledged that she told Vavul-Roediger
that no one besides Royster touched her inappropriately, and that that was incorrect.
{¶ 15} Detective Taylor testified that in March, 2012, he was assigned to the
“special victims unit with a specialty at Care House.” He stated that the instant matter was
referred to the Dayton Police Department from Miami County Children’s Services by
means of a “TRU,” or telephone reporting unit, “and that’s generally kind of a low priority
call” because the alleged victim is not in immediate danger. When the instant case was
assigned to Taylor, he testified that he contacted the Miami County Children’s Services
caseworker and scheduled a forensic interview for J.J. at Care House. Taylor stated that
he is trained to conduct a forensic interview with a child victim in a manner that
encourages the child “to tell you what happened in their words and narrate freely.”
Taylor stated that children are “highly suggestible,” and that “[w]e try to ask open ended
questions. You do your best not to ask a yes or no questions. (sic) If you do have to ask
a yes or no question * * * if their answer is yes, you say, ‘Well, tell me about that.’ You
know, you don’t want to direct them. You just try to stay neutral * * * and get them to tell
you what happened in their own words.”
{¶ 16} In the course of his interview with J.J., Taylor stated that she used
terminology beyond her years that concerned him. He stated that J.J. “talked about
when [Royster] put her (sic) finger in her. * * * I asked her how she knew it was inside and
she described that it hurt and then talked about - - described his fingernails as being very
long and it caused her pain.” Taylor stated that when J.J. disclosed the second incident,
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“she talks about that the Defendant was naked and put a plastic sandwich bag on his
private * * * initially when she’s telling me this and I’m thinking she’s describing a condom.
But she was very adamant that, no, this was a plastic sandwich bag that like you would
pack your school lunch in.” According to Taylor, that is “not something - - that’s just not
normal. It’s just not something normal you would hear coming from - - I believe she was
ten years old at the time, telling me.” The following exchange occurred:
Q. And now when you say not normal, like she shouldn’t have that
advanced knowledge or that –
A. Yes. In my opinion - -
Q. Well, don’t give us your opinion.
A. Oh, I’m sorry. I’m sorry.
Q. But that’s when you say it caused you concern. In other words,
I guess what I’m trying to make sure I understand. When you say, gave
you pause or caused you concern, it wasn’t you were worried or were you
worried that somebody had been coaching her or was it you were
concerned, or gave you pause, because this is the type of thing, you know,
unless you’ve experienced it would be hard to make up?
A. Well, I would say, yes, I was definitely - - I was worried that - - that
gave me concern that this did not seem like something that would be made
up. It just seemed very odd, something that almost you had to experience.
And it also, you know, I’ve been around kids that have been coached and
I’ve interviewed those kids. And usually the details, when the details are
much more, you know, it would be maybe, for example, he put a condom
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on, not a plastic sandwich bag. So that’s what concerned me.
{¶ 17} The following exchange occurred regarding the location of the offenses:
Q. * * * Did you get any sense of or was [J.J.] able to give you any
description of the place she lived?
A. She did.
Q. * * * And is that area, Linda Vista Avenue, where is that in
relation to Salem Avenue?
A. Linda Vista is approximately one block off of Salem Avenue.
***
Q. * * * At some point after the interview did you actually go out to
try and corroborate her story about where she lived or investigate where it
might be?
A. I did.
Q. And do you remember where you went?
A. * * * once the interview was done with what information I had,
suspect information, I looked up through a couple of databases that are
available to us and found the address of * * * Linda Vista that the suspect
had used, one in either a State of Ohio database provided by the attorney
general’s office which uses driver’s license, motor vehicle registration, that
type of public stuff. And he had used * * * Linda Vista, Apartment * * *. Also
* * * I found a traffic ticket that Mr. Royster had received where he had also
carried the address of Linda Vista, Apartment * * *.
Taylor stated that he went to the Linda Vista address and spoke to a woman who
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indicated she had resided there since November, 2011, and who confirmed that she had
received mail there addressed to J.J.’s mother. Taylor identified photographs taken by
him of the apartment on April 11, 2012.
{¶ 18} Regarding the incident with the 14 year old boy, the following exchange
occurred:
Q. When you interviewed [J.J.] a second time about some of these
other incidents, trying to follow up on with the other boys, did she give you
kind of a disclosure at that point of what she said happened?
A. With those boys, yes, she did.
Q. Did she ever mention whether Joe had said anything to her?
A. She did tell me about a comment that Joe had made to her.
Q. What’d she say?
A. * * * she had told me about the second incident with the 14 year
old in the basement. She said that after that Joe had found out
somewhere. And she told me they had been out and they’d gotten like
some candy and food and this was later and Joe was having a talk with her
about that and told her that “Nobody is to touch your parts, your private
parts, because those are mine.”
{¶ 19} On cross-examination, Taylor testified that in his first interview with J.J.,
she told him that no one else touched her inappropriately, and that he did not learn of the
subsequent two incidents for almost a year, in late January or early February of 2013.
{¶ 20} On redirect examination, the following exchange occurred:
Q. Detective, this is probably my fault, so I apologize, but we kept using
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red flag and concern and could mean you pause for seems like lots of different
categories of things. So I want to bring it back to that, just to clarify.
***
Q. Was there anything [J.J.] said to you during her interview that caused
you a concern that she was lying to you, either being coached or whatever?
A. No.
Q. Obviously you weren’t there, so you don’t know whether, you can’t
vouch for that she’s saying the truth, but I just mean in terms of when you talk
about a red flag for things she said there was nothing that was like, oh, that’s
because either she’s being coached or lying?
A. No. At no time did I think that.
***
{¶ 21} We note that Royster filed a petition for post-conviction relief on March 3,
2014, which the trial court overruled on August 25, 2014. This Court affirmed the decision
of the trial court in State v. Royster, 2d Dist. Montgomery No. 26378, 2015-Ohio-625.
Royster, acting pro se, sought reconsideration of that decision, and this Court granted his
application for the purpose of considering Royster’s argument that his counsel failed to
investigate a more specific timeframe for the offenses. State v. Royster, 2d Dist.
Montgomery No. 26378 (April 7, 2015). Thereafter, this Court affirmed our prior
decision. Id.{¶ 22} Royster asserts four assignments of error herein2. His first assigned error
2
We note that portions of Royster’s brief are single-spaced. App.R. 19(A) governs the
form of briefs and provides that briefs shall be double-spaced “except quoted matter
which shall be single spaced.”
-22-
is as follows:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
CRIM.R. 29 MOTION FOR A[C]QUITTAL WITH RESPECT TO THE
PENILE RAPE AND CHILD ENDANGERING OFFENSES, AS THE STATE
FAILED TO PRODUCE SUFFICIENT EVIDENCE TO PROVE EACH
ESSENTIAL ELEMENT OF THE OFFENSES BEYOND A REASONABLE
DOUBT.
A. The State Failed to Produce Sufficient Evidence that the
Appellant’s Use of Corporal Punishment was “Excessive under the
Circumstances,” and That It Created A “Substantial Risk of Serious
Physical Harm,” as Required by R.C. 2919.22(B)(3).
B. The State Failed to Produce Sufficient Evidence That Vaginal
Penetration Occurred as Required Under R.C. 2907.02(A)(1)(b).
{¶ 23} As this Court has previously noted:
When reviewing the denial of a Crim.R. 29(A) motion, an appellate
court applies the same standard as is used to review a claim based on the
sufficiency of the evidence. “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,
2009–Ohio–525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N .E.2d 541 (1997). The relevant inquiry is whether any rational finder
of fact, after viewing the evidence in a light most favorable to the State,
-23-
could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d
1096 (1997). A guilty verdict will not be disturbed on appeal unless
“reasonable minds could not reach the conclusion reached by the
trier-of-fact.” Id.State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 28.
{¶ 24} Royster directs our attention to Bowman v. Bowman, 9th Dist. Medina No.
13CA0064-M, 2014-Ohio-2851, in which the Ninth District affirmed the grant of a civil
protection order in favor of a mother and against the father where “a rational finder of fact
could have found that [father’s] use of corporal punishment was ‘excessive under the
circumstance and create[d] a substantial risk of serious physical harm * * *.’ ” Id., ¶ 18.
The father in Bowman slapped his eleven year old daughter “in the face with enough force
to knock her to the ground, leave a handprint the following day, and cause her lip to swell
because she would not hand over her iPod.” Id. The Ninth District held that when
“determining whether corporal punishment was excessive, a trial court must consider the
totality of the circumstances, ‘including the age of the child, the child’s response to non
[-] corporal punishment, and the behavior being punished.’ * * *.” Id., ¶ 11.
{¶ 25} Royster also relies upon State v. Rosa, 6 N.E.3d 57, 2013-Ohio-5867 (7th
Dist.), which held that the evidence was insufficient to support a father’s conviction for
domestic violence. The Rosa court noted that, “[i]n a reasonable attempt to stop [the
son’s] behavior and separate him from the other children, [the father] grabbed [his son] by
the neck and placed him in his room, causing very minimal injury * * *.” Id., ¶ 46. The Rosa
court also determined that in “parental discipline cases, the State must prove that the
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parent’s conduct was improper and unreasonable corporal punishment in light of the
totality of the circumstances.”3 Id., ¶ 35.
{¶ 26} Royster further asserts as follows:
No pictures of these marks were ever introduced into evidence, nor
were they published to the jury. Outside of J.J.’s testimony that appellant
used a belt on her legs “a little bit sometimes” that temporarily left welts, the
state produced no evidence that any punishment administered was
“excessive under the circumstances.” Simply put, there were no details of
where or when the incident(s) occurred, no discussion of the circumstances
leading up to the punishment, no discussion of whether non-corporal
punishment methods had failed in the past, and no evidence of what
occurred afterwards (i.e. whether medical treatment was sought, whether or
not J.J. experienced any pain, etc.). Therefore, the jury had absolutely no
circumstances to consider when assessing the charge. The record
affirmatively demonstrates that the state failed to produce sufficient
evidence that appellant’s use of corporal punishment was “excessive under
the circumstances.” Therefore, the evidence produced at trial is
insufficient to uphold a guilty verdict as a matter of law and the conviction
3
See State v. Thompson, 2d Dist. Miami No. 04CA30, 2006-Ohio-582, ¶ 33 (“The trial
court concluded that Defendant's conduct in striking his stepdaughter's hand with [a]
metal object was not appropriate as a means of physical punishment and was extreme
and excessive under the circumstances, and therefore, was not proper and reasonable
parental discipline. Under the totality of these facts and circumstances, we conclude that
the trial court acted well within its discretion in reaching its decision. Having failed to prove
that affirmative defense, Defendant was properly found guilty of domestic violence.”)
(emphasis added).
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should be reversed.
{¶ 27} The State responds in part as follows:
* * * In Royster’s mind, since the jury did not hear evidence regarding
the circumstances under which he beat J.J. - such as what J.J. did to
deserve the beating or how J.J. had responded in the past to other, less
severe forms of punishment – the evidence was insufficient to show that the
beating he inflicted here was “excessive.” Royster’s argument appears to
assume that beating an eight-year-old with a belt so severely that it leaves
welts and permanent scarring might be appropriate under some
circumstances and that, therefore, evidence is sufficient to support a charge
of endangering children only if the trier of fact is aware of the totality of the
circumstances under which the beating occurred. * * *
{¶ 28} R.C. 2919.22 provides:
***
(B) No person shall do any of the following to a child under eighteen
years of age * * *
***
(3) Administer corporal punishment * * * which punishment * * * is
excessive under the circumstances and creates a substantial risk of serious
physical harm to the child.
{¶ 29} Pursuant to R.C. 2901.01(A)(5), and as the jury was instructed, serious
physical harm to persons means in relevant part:
(a) Any mental illness or condition of such gravity as would normally
-26-
require hospitalization or prolonged psychiatric treatment;
***
(d) Any physical harm that involves some permanent disfigurement
or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged or
intractable pain.
{¶ 30} Having reviewed the evidence in a light most favorable to the State, we
conclude that a rational finder of fact could have found the essential elements of
endangering children proven beyond a reasonable doubt. J.J. testified on direct and
cross that if she got into trouble, Royster would discipline her by means of a belt, and that
the belt and buckle left welts on her legs and buttocks. J.J. went to live with J.B. in April
of 2011, and at the time of Vavul-Roediger’s physical examination of J.J. one year later, in
April, 2012, according to the doctor, visible scarring on her left knee and right thigh were
present. Vavul Roediger testified that J.J. told her that the scar on her knee was caused
by a fall, but when asked about the scarring on her right thigh, J.J. was reluctant to
respond. Only after Vavul-Roediger asked her if someone had harmed her did J.J.
disclose that Royster beat her with a belt and buckle. The jury was free to attribute J.J.’s
initial reluctance to incriminate Royster both to her overwhelming fear of him and her
concern that others would learn what he did to her. This conclusion is supported by
Vavul-Roediger’s testimony that J.J. spontaneously told her that she did not like to wear
dresses because doing so exposed the scars on her legs. Further, based upon her
training and experience, Vavul-Roediger expressed concern that the scars on J.J.’s thigh
-27-
“may not be accidental in nature based on their characteristics, their pattern, their
placement on her leg.” According to Vavul-Roediger, the scarring “did not seem to be a
typical location for a type of injury that would typically result from routine activity in an
active child.” While she could not definitively state that the scarring was caused by a belt
and buckle, Vavul-Roediger testified that the marks could be consistent with being beaten
by a belt, and that being beaten with a belt could cause scarring, or, in other words,
serious physical harm.
{¶ 31} Finally, we conclude that Royster’s reliance upon Bowman and Rosa is
misplaced for the proposition that in the absence of evidence regarding the totality of the
circumstances surrounding Royster’s endangering children offense, Royster was entitled
to an acquittal. We note that the Rosa Court noted “the unique nature of the parent/child
relationship, including the parent’s right to discipline their child, including the use of
corporal punishment,” and as the State asserts, the matter herein is not a parental
discipline case. Id., ¶ 21. If the jury believed J.J.’s testimony that Royster beat her with
a belt and buckle to such an extent that welts remained visible on her skin, and credited
Vavul-Roediger’s testimony regarding the nature and pattern of the scarring as
inconsistent with a typical childhood injury, the jury could have found the essential
elements of R.C. 2919.22(B)(3) proven beyond a reasonable doubt.
{¶ 32} Regarding Royster’s assertion that the State failed to produce sufficient
evidence of penile penetration, Royster asserts in part that “J.J.’s testimony is confusing
as she is unclear regarding the specifics of what happened and is even unsure whether it
hurt. * * * J.J. initially stated that she felt appellant, ‘skin on skin,’ but later said he covered
his penis with a plastic bag he retrieved off the dresser.” Royster asserts that there “is no
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evidence that appellant was actually trying to push inside of her vagina and there was no
evidence whether J.J. even experienced any pain as she so explicitly detailed in regards
to the alleged digital penetration. The details of the account here are extremely vague
and unclear and thus, do not prove beyond a reasonable doubt that penetration
occurred.” Royster directs our attention to State v. Wells, 91 Ohio St.3d 32, 740 N.E.2d
1097 (2001), in which the Ohio Supreme Court affirmed the decision of this Court that
reversed the defendant’s conviction for anal rape after finding that the State failed to
prove penetration into the victim’s anal cavity. The Wells Court held as follows:
[T]here is sufficient evidence of anal intercourse, for purposes of the
crime of anal rape under R.C. 2907.02, where the trier of fact finds that the
defendant penetrated, however slightly, the victim's anus with any part of
the defendant's body, or with any instrument, apparatus, or other object. If
the evidence shows that the defendant made contact only with the victim's
buttocks, there is not sufficient evidence to prove the defendant guilty of the
crime of anal rape. As a corollary, where the evidence shows that the
defendant attempts to penetrate the victim's anus, and, for whatever
reason, fails to do so and makes contact only with the buttocks, there is
sufficient evidence to prove the defendant guilty of the crime of attempted
anal rape.
State v. Wells, 91 Ohio St. 3d 32, 34, 740 N.E.2d 1097 (2001).
{¶ 33} Royster notes that this Court applied Wells in State v. Lucas, 2d Dist.
Montgomery No. 18644, 2001 WL 1103288 (Sept. 21, 2001), which involved a charge of
vaginal rape. As this Court noted in State v. Grant, 2d Dist. Montgomery No. 19824,
-29-
2003-Ohio-7240, ¶ 25, the evidence in Lucas “showed that the defendant had rubbed his
penis across the victim’s vaginal area. We held that, as in Wells, the evidence was
insufficient to show penetration, and that in order to prove vaginal rape there must be
evidence that the force of the object caused the labia, which form the outer lips of the
victim’s vagina, to spread. * * *.” As noted in Grant, “[a]bsent that, and depending on the
circumstances, only attempted vaginal rape is shown.” Id.{¶ 34} R.C. 2907.02(A)(1) provides: “No person shall engage in sexual conduct
with another who is not the spouse of the offender * * * when * * * (b) The other person is
less than thirteen years of age * * *.” R.C. 2907.01(A) provides: “ ‘Sexual conduct’
means vaginal intercourse between a male and female * * *. Penetration, however
slight, is sufficient to complete vaginal * * * intercourse.”
{¶ 35} We agree with the State’s assertion that, if “believed, the evidence
presented at trial established that Royster’s penis went into J.J.’s vagina – not almost in or
close to being in as Royster appears to suggest.” In State v. Cox, 2d District
Montgomery No. 25477, 2013-Ohio-4941, Cox was charged with penile rape, and the
victim testified that Cox “tried to put his penis inside me but being so young it didn’t exactly
work out that way,” and that he “tried” to push his penis into her vagina. Id., ¶ 44. When
asked if Cox’s penis entered her vagina, the victim replied, “I mean a little bit but it - -I was
so small as a kid, I mean I don’t know. * * *. It did. It – he tried, but it didn’t go in all the
way.” The victim acknowledged that Cox’s penis “got in a little bit,” and that “[i]t hurt.” Id.
This Court concluded that the victim’s testimony, “if believed, is sufficient to permit the jury
to reasonably conclude that Cox’s conduct in inserting his penis ‘a little bit’ into [the
victim’s] vagina necessarily caused the labia majora to spread. C.F’s testimony was not
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confusing nor was she unsure whether Cox had penetrated her vagina with his penis.”
Id., ¶ 45.
{¶ 36} We disagree with Royster that J.J.’s testimony is confusing and insufficient
to support his conviction for penile rape; J.J. testified that Royster was naked at the time
of the offense, and the fact that she initially stated that she felt skin to skin contact with
him does not belie her assertion that he further penetrated her vagina with his penis
inside a plastic bag. When questioned further, J.J. stated that Royster placed a
sandwich bag on his penis and then put his penis a “little bit in” her vagina. Although the
electronic recording of J.J.’s demonstration with the tissue box is not part of the record
before us, we note that immediately following the demonstration, counsel for the State
confirmed with her, “So it went in just a little bit,” and defense counsel did not object to the
State’s characterization of J.J.’s demonstration.
{¶ 37} We note that Vavul-Roediger testified that J.J. gave “a very, very clear
disclosure of being sexually abused,” and that “her symptoms are supportive of what she”
reported. J.J.'s testimony at trial regarding Royster’s use of the plastic bag was
consistent with the version of events that she related to Vavul-Roediger; Vavul-Roediger
testified that J.J. “again clarified that Joseph had a plastic bag on his private when he had
put his private in her private.” Vavul-Roediger testified that she “asked [J.J.] what it felt like
to her body when Joseph put his private in her private, and [J.J.] said it hurt, it hurt to pee
after,” and we conclude that, given J.J.’s tender years, the fact that she was unsure at trial
whether Royster hurt her in the course of the abuse does not render her version of events
vague and unclear as Royster asserts. Taylor’s testimony regarding J.J.’s version of
events, namely that Royster was naked and put a plastic sandwich bag on his penis was
-31-
further consistent with J.J.’s trial testimony; Taylor testified that J.J. “was very adamant”
about the plastic bag. Construing the evidence most strongly in favor of the State, we
conclude that, if believed, the evidence against Royster would support a conviction for
penile rape.
{¶ 38} For the foregoing reasons, Royster’s first assigned error is overruled.
{¶ 39} Royster’s second assigned error is as follows:
APPELLANT’S CONVICTIONS FOR TWO COUNTS OF RAPE ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 40} Royster asserts that “J.J. gave conflicting statements regarding how old
she was when the abuse occurred,” citing her testimony that she was “[e]ight or nine” at
the time. Royster asserts that “J.J. told several people that she had only been abused by
the appellant. However, she later indicated that there were two other incidents of abuse
that occurred with different people.” Royster directs our attention to J.J.’s admission that
she did not tell Vavul-Roediger the truth about the other incidents of abuse, and her
admission that she was dishonest with Taylor about the other incidents, and he asserts
that “[t]his alone is enough to demonstrate that J.J.’s credibility is called into question as
she told some people that other instances of abuse had occurred and others that it had
not.” Royster asserts that “J.J. was inconsistent in describing the abuse that occurred
with the two younger boys,” asserting that she told Taylor “that one of the boys had his
penis up against her from behind,” but that she told Stephenson that “the boy placed his
penis inside her anus.” Royster asserts that “J.J. made inconsistent statements
regarding whether her grandmother was upset with her for not disclosing the other
incidents of abuse sooner,” asserting that while Stephenson testified that J.J. told her that
-32-
B.J. was upset that J.J. withheld the information, J.J. denied making the statement about
her grandmother to Stephenson. Royster asserts, as he did in the first assigned error,
that “J.J. gave conflicting statements in regards to the details of the penile abuse,” namely
that she testified that she felt skin to skin contact with Royster and then stated that he had
a plastic bag on his penis. Royster asserts that “J.J. claimed the abuse took place on
Salem Avenue, and then later admits she never lived there.” Finally, Royster asserts
that “J.J. never told anyone of the other incidents of abuse until she went to live with her
grandmother. Despite that, while she was still living with the appellant, she indicated that
he made a comment to her in regards to the incident with the fourteen year old boy.”
According to Royster, “J.J. made numerous conflicting statements, thus damaging their
reliability. As a result, the jury’s dependence upon them was misplaced and it is clear
that they lost their way in arriving at a guilty verdict.”
{¶ 41} The State responds that a review of Royster’s above assertions “shows
that either (1) they were not conflicting or inconsistent at all; (2) they related to collateral or
inconsequential matters; or (3) they can easily be attributed to J.J.’s young age at the time
of the sexual assaults * * * and the trial * * * as well as the passage of time in between.”
The State further asserts that even if J.J.’s testimony was inconsistent at times, she was
thoroughly cross-examined by defense counsel.
{¶ 42} As this Court has previously noted:
In contrast [to a sufficiency of the evidence argument], “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.” [State v. Wilson, 2d Dist. Montgomery No. 22581,
-33-
2009-Ohio-525], ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328,
2012–Ohio–2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’
refers to a greater amount of credible evidence and relates to persuasion”).
When evaluating whether a conviction is against the manifest weight of the
evidence, the appellate court 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.” [State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
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, 1997 WL 476684 (Aug. 22, 1997). However, we
may determine which of several competing inferences suggested by the
evidence should be preferred. Id. The fact that the evidence is subject to
different interpretations does not render the conviction against the manifest
weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be
reversed as being against the manifest weight of the evidence only in
exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
State v. Jones, 2d Dist. Montgomery No. 25724, 2014-Ohio-2309, ¶ 8-9.
{¶ 43} We initially note, as the State asserts, that a “ ‘conviction is not against the
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manifest weight of the evidence solely because the jury heard inconsistent testimony. * *
*.’ ” State v. Robinson, 2d Dist. Montgomery No. 17393, 2001 WL 62569, *9 (Jan. 26,
2001). We conclude that the jury did not lose its way simply because it chose to believe
J.J.’s testimony regarding the penile rape, as set forth above, as well as her testimony
that Royster put his fingers inside her “front private” in a manner that caused her ongoing
pain due to his long fingernails. We note that as with the penile rape, J.J.’s trial
testimony regarding the digital rape was consistent with the version of events that she
related to Vavul-Roediger, and that J.J. further demonstrated Royster’s conduct in
committing that offense to Vavul-Roediger by motioning with her finger in circles. As
noted above, Vavul-Roediger stressed that J.J. gave “a very, very clear disclosure” of the
rape offenses, and that her symptoms, including her fear, anxiety, stomach aches,
“possible post-traumatic type symptoms,” as well as the presence of the U-shaped
depression or notch on her hymen, while not conclusive proof of abuse, could be
supportive of what J.J. reported. As with the penile rape, J.J.’s trial testimony was also
consistent with the version of events that she related to Taylor regarding the digital rape,
Royster’s conduct, and his long fingernails.
{¶ 44} Finally, we agree with the State that any inconsistencies in J.J.’s testimony
cited by Royster related to inconsequential matters and not to the rape offenses. Further,
J.J. was testifying before a group of strangers about what Royster, whom she feared, had
done to her, and minor inconsistencies in her testimony, such as her age at the time of the
offenses, or whether or not her grandmother was upset that she delayed disclosing the
additional abuse that did not involve Royster, are understandable. We note that J.B.
testified that J.J. told her that she did not want to disclose the additional abuse to her
-35-
because J.J. “figured that I had heard enough.” The jury was free to attribute J.J.’s failure
to disclose the additional abuse involving the young boys to Vavul-Roediger and Taylor to
the difficulty in doing so and her fear that she might get into trouble. While J.J.’s
descriptions of that abuse varied in terms of whether anal penetration occurred, J.J.’s
version of the events involving Royster were in fact very consistent, as discussed above.
Regarding Royster’s assertion that “it is unclear as to whether or not J.J. can even say for
certain where she was living when the abuse was alleged to have occurred,” based upon
Craft’s testimony that she believed that the abuse occurred on Salem Avenue, we note
that J.J. identified photographs of her apartment on Linda Vista Avenue where she
testified the abuse occurred, and she stated that she did not live on Salem Avenue.
Finally, regarding Royster’s assertion that, if J.J. “never told anyone about the other
abuse that occurred until January of 2013, then it was not possible for Mr. Royster to have
known, let alone comment on, the incident between August 2010 and April 2011,” we note
that J.J.’s trial testimony was again consistent with what she reported to Taylor in terms of
Royster’s comment. The identity of the 14 year old perpetrator is unknown, and the jury
was free to conclude that Royster may have learned of the incident from someone other
than J.J.
{¶ 45} Having reviewed the entire record, weighed the evidence and all
reasonable inferences, we conclude that Royster’s rape convictions are not against the
manifest weight of the evidence. Royster’ second assigned error is accordingly
overruled.
{¶ 46} Royster’s third assigned error is as follows:
APPELLANT’S TRIAL COUNSEL PROVIDED INEFFECTIVE
-36-
ASSISTANCE BY FAILING TO PURSUE AN ALIBI DEFENSE; NOT
REQUESTING MORE SPECIFIC DATES IN THE BILL OF
PARTICULARS; AND FAILING TO OBJECT TO THE BOLSTERING OF
J.J.’S CREDIBILITY BY DETECTIVE TAYLOR.
{¶ 47} Royster asserts as follows:
First, counsel failed to pursue an alibi defense when evidence
existed that would indisputably prove Appellant was not living in Ohio for at
least two months of the time period delineated in the indictment. Second,
trial counsel did not request more specific dates in the bill of particulars, and
did not file a motion to compel when the state was not forthcoming with the
document. Third, and perhaps most importantly, counsel failed to object to
certain testimony of Detective Taylor, which effectively bolstered J.J.’s
credibility. As a result, appellant’s convictions should be reversed.
{¶ 48} As this Court has previously noted:
To reverse a conviction based on ineffective assistance of counsel,
an appellant must demonstrate both that trial counsel's conduct fell below
an objective standard of reasonableness and that the errors were serious
enough to create a reasonable probability that, but for the errors, the result
of the trial would have been different. Strickland v. Washington, 466 U.S.
668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong
presumption that his or her conduct falls within the wide range of
reasonable assistance. Strickland, 466 U.S. at 688.
-37-
State v. Vineyard, 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 28.
{¶ 49} Regarding Royster’s initial argument that his counsel was deficient in failing
to pursue an alibi defense this Court previously addressed this assertion in overruling
Royster’s petition for post-conviction relief as follows:
* * * Royster claims his counsel was ineffective in failing to
investigate his alibi that he was residing at the Carpenter Shelter in Virginia
during the time frame that the rape offenses allegedly occurred. In support
of the alibi argument, Royster submitted documentation from the shelter
indicating that he was residing there between July 16, 2010 and October
12, 2010. Royster states in his affidavit that he had a discussion with his
counsel regarding the dates of the alleged offenses and his alibi. He also
averred that he provided his counsel with other supporting documentation,
but that counsel did not want to use it.
Even if we were to assume counsel's performance was deficient with
respect to investigating Royster's alibi, Royster has failed to establish that
any further investigation would have changed the outcome of his case. As
previously noted, he was indicted for committing the rape offenses
sometime between August 1, 2010 and April 30, 2011. While he established
an alibi between July 16, 2010 and October 12, 2010, there is still a six
month window of time in which the offenses could have occurred as alleged.
There was also testimony presented at trial indicating that the offenses
were committed within the alleged time frame. As the trial court indicated,
Royster is not alleging that he was at the homeless shelter during the entire
-38-
period between August 1, 2010 and April 30, 2011. Therefore, we agree
with the trial court's finding that the homeless shelter evidence is immaterial
to the outcome.
For the foregoing reasons, Royster's claim that his trial counsel was
ineffective in failing to investigate his alibi has no merit.
State v. Royster, 2d District Montgomery No. 26378, 2015-Ohio-625, ¶ 36-38.
{¶ 50} Regarding Royster’s assertion that his counsel was ineffective for failing to
request more specific dates on which the charged conduct occurred and failing to file a
motion to compel, we note that he relies upon State v. Sellards, 17 Ohio St.3d 169, 478
N.E.2d 781 (1985). This Court previously rejected this assertion when ruling upon
Royster’s application for reconsideration as follows:
In his application for reconsideration, Royster generally claims that
we failed to consider [Sellards]. Sellards held that “the state must, in
response to a request for a bill of particulars or demand for discovery,
supply specific dates and times with regard to an alleged offense where it
possesses such information.” * * * Id. at 169. Sellards also explained that
“inexactitude, even where the state is simply unable to comply with the
times and dates more specific than those found in the indictment, may also
prove fatal to the prosecution. Such would be the case if the absence of
specifics truly prejudices the accused’s ability to fairly defend himself.”
(Emphasis sic.) Id. at 172. The court in Sellards explained that an example
of such prejudice is if “ ‘the defendant had been imprisoned or was
indisputably elsewhere during part but not all of the intervals of time set out
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in the indictment.’ ” Id., quoting State v. Gingell, 7 Ohio App.3d 364, 368,
455 N.E.2d 1066 (1st Dist. 1982).
In his pro se brief, filed on October 14, 2014, Royster cited Sellards
in support of one of his ineffective assistance of counsel claims in which he
argued that his counsel was ineffective in failing to investigate * * * a more
specific timeframe for the offenses alleged in the indictment. * * *
***
Here, Royster has not demonstrated that there is a reasonable
probability that the outcome of his trial would have been different had his
trial counsel investigated more specific offense dates. The trial testimony
of the victim and the victim’s grandmother establishes that there was not a
more specific timeframe for the offense than what was alleged in the
indictment. The victim testified that when she was eight years old, Royster
sexually abused her inside the apartment they lived in together with her
mother on Linda Vista Avenue in Dayton, Ohio. The victim testified that
she turned eight on July 27, 2010. Both the victim and the victim’s
grandmother indicated that in April, 2011, the victim left the Linda Vista
residence to live with her grandmother and has remained there since. This
testimony is consistent with the timeframe of the alleged abuse in the
indictment – August 1, 2010 through April 30, 2011. Therefore, no new or
different information would have been obtained following any further
investigation by Royster’s trial counsel.
State v. Royster, 2d Dist. Montgomery No. 26378 (April 7, 2015).
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{¶ 51} In support of Royster’s assertion that defense counsel was ineffective in
failing to object to Taylor’s testimony, he relies upon State v. Boston, 46 Ohio St.3d 108,
545 N.E.2d 1220 (1989). “In Boston, the Supreme Court of Ohio held that an expert may
not comment on the credibility or veracity of a witness. This court has stated that the rule
announced in Boston applies to police officers as well as expert witnesses, because a
juror is likely to perceive an officer as an expert and because the rule applies to lay
persons as well as experts. * * *.” State v. Tobin, 2d Dist. Greene No. 2005 CA 150,
2007-Ohio-1345, ¶ 24.
{¶ 52} In response, the State directs our attention to State v. Stowers, 81 Ohio
St.3d 260, 262, 690 N.E.2d 881 (1998). As this Court previously noted, the “ ‘ Ohio
Supreme Court has found that testimony from a psychologist on the behavioral
characteristics of sexually abused children is admissible, see [Stowers, at 262], and so
have we. * * *.’ State v. Rosas, 2d Dist. Montgomery No. 22424, 2009-Ohio-1404, ¶
41.” State v. Zimpfer, 2d Dist. Montgomery No. 26062, 2014-Ohio-4401, ¶ 30. In Rosas,
this Court noted the “distinction ‘between expert testimony that a child witness is telling
the truth,’ on the one hand, and on the other hand, ‘evidence which bolsters a child’s
credibility insofar as it supports the prosecution’s efforts to prove that a child has been
abused.’ Stowers, at 262, * * *. Expert testimony is admissible as to the latter.” Rosas,
¶ 42. As this Court determined in Rosas, “evidence that provides ‘additional support for
the truth of the facts testified to by the child, or which assists the fact finder in assessing
the child’s veracity’ * ** ” is admissible. Id., quoting Stowers at 262. “Such testimony
‘does not usurp the role of the jury, but rather gives information to a jury which helps it
make an educated determination.’ [Stowers] at 263 * * *.” Rosas, id.-41-
{¶ 53} In reviewing Taylor’s testimony, we agree with the State that Taylor
permissibly testified that J.J.’s description of Royster’s conduct in raping her was specific
and detailed in a manner beyond her years. Also, the prosecutor cautioned Taylor not to
provide his opinion and expressly noted in the course of Taylor’s testimony that Taylor
“can’t vouch for that [J.J.’s] saying the truth.” Even if we conclude that Taylor improperly
testified as to his belief that J.J. was telling the truth when he stated that at “no time did I
think that” J.J. had been coached or was lying, Royster cannot satisfy the second prong of
the Strickland analysis. In other words, had defense counsel objected to Taylor’s
testimony, we have no basis to conclude that the outcome of the trial would have been
different. This is so because, in cases involving the sexual abuse of children, “the most
reliable evidence still comes from the child victim. Judges and jurors are the best
fact-finders as to the credibility of witnesses and in determining guilt or innocence.”
Stowers, at 264, Resnick, J., dissenting. J.J. testified and was cross-examined about
what happened to her, and the jury clearly believed her testimony. We have no basis to
conclude that they would not have done so had defense counsel objected to Taylor’s
testimony.
{¶ 54} Since ineffective assistance of counsel is not demonstrated, Royster’s
third assigned error is overruled.
{¶ 55} Royster’s fourth assignment of error is as follows:
THE CUMULATIVE EFFECT OF THE ERRORS DEPRIVED
APPELLANT OF A FAIR TRIAL AND THEREFORE, WARRANT A
REVERSAL UNDER THE CUMULATIVE ERROR DOCTRINE.
{¶ 56} As noted by the Supreme Court of Ohio:
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State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus, recognized the doctrine of cumulative error.
Under this doctrine, a conviction will be reversed when the cumulative effect
of errors in a trial deprives a defendant of a fair trial even though each of the
numerous instances of trial court error does not individually constitute
cause for reversal. Id. at 196–197, 509 N.E.2d 1256. * * *
State v. Jackson, 141 Ohio St. 3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 258.
{¶ 57} For the reasons set forth in Royster’s first three assigned errors, we
conclude that the record does not contain numerous, cumulative errors that deprived
Royster of a fair trial. Accordingly, his fourth assignment of error is overruled.
{¶ 58} Having overruled Royster’s assigned errors, the judgment of the trial court
is affirmed.
..........
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Robert L. Mues
Charles W. Morrison
Hon. Timothy N. O’Connell