State v. Solorio , 2022 Ohio 3749 ( 2022 )

[Cite as State v. Solorio, 2022-Ohio-3749.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210526
TRIAL NO. B-2001537
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
JOSE CALDERON SOLORIO, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 21, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Clyde Bennett II, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} A jury found defendant-appellant Jose Calderon Solorio guilty of
multiple counts of gross sexual imposition against his minor daughter, L.C., after she
accused him of sexually abusing her over a three-year period. On appeal, Mr. Calderon
raises five assignments of error challenging an array of issues, including Brady
violations, admissibility of evidence, imprecision in the indictment, weight and
sufficiency of the evidence, and ineffective assistance of counsel. Based on the record
at hand and the governing caselaw, however, we overrule his assignments of error and
affirm the judgment of the trial court.
I.
{¶2} L.C. testified that Mr. Calderon began sexually abusing her in the
summer of 2017, when she was just 11 years old. The first time an assault occurred,
Mr. Calderon, L.C., and L.C.’s younger brothers were camping in a recreational vehicle
at Caesar Creek State Park in Warren County, Ohio. At night, as L.C. laid in bed
between Mr. Calderon and her youngest brother, Mr. Calderon inappropriately
touched L.C. over her clothes. Several months later, in February or March of 2018,
Mr. Calderon laid next to L.C. on the couch in the family home. This time, he made
inappropriate contact with her beneath her clothing. L.C. also testified about three
other incidents during which Mr. Calderon made inappropriate contact with her
beneath her clothing. These incidents took place when L.C. was 13 years old. Besides
the first incident, the remaining five occurred in Hamilton County.
{¶3} In May 2019, L.C. came forward and told her mother about the abuse.
Earlier that day, while she was supposed to be at a school social event, 13-year-old L.C.
walked to a friend’s home without her parents’ permission. When Mr. Calderon
2
OHIO FIRST DISTRICT COURT OF APPEALS
discovered this, he became enraged—driving to her friend’s home, grabbing L.C. by
the hair, and shoving her into his truck. On the drive home, L.C. tried explaining that
she went to her friend’s home to charge her dying cell phone. Mr. Calderon responded
by striking her in the face, and when they arrived home, he told her to wait inside while
he went to the shed to grab a garden hose. He then proceeded to use the hose to beat
L.C. on her upper legs.
{¶4} This attack served as a breaking point for L.C. When her mother arrived
home from work, L.C. opened up about Mr. Calderon’s history of sexually abusing her
over the past few years. Instead of alerting law enforcement officials or medical
professionals, however, L.C.’s mother dispatched her inside the house while she
discussed the allegations with Mr. Calderon. Her parents took no further action that
night regarding the allegations.
{¶5} The next day at school, L.C. disclosed the abuse to a close friend. Her
friend notified a trusted teacher, who in turn reported the allegations to Dr. Stacy
Orso, the principal of L.C.’s school. After speaking with L.C. and confirming the
allegations, Dr. Orso summoned the police and called the child-abuse-reporting
hotline 241-KIDS. A police officer took L.C. to the Mayerson Center for Safe and
Healthy Children at the Cincinnati Children’s Hospital, where forensic interviewer
Ashley Cremeans interviewed her. Ms. Cremeans made a preliminary finding
confirming inappropriate sexual contact between L.C. and Mr. Calderon.
{¶6} After L.C.’s interview at the Mayerson Center, she testified about the
abuse before a grand jury in August of 2019. She explained the incident at Caesar
Creek Park as well as an incident at a home her father was remodeling. She also
indicated that the abuse occurred other times, when L.C. and Mr. Calderon were alone
3
OHIO FIRST DISTRICT COURT OF APPEALS
in the living room. Notwithstanding this testimony, the grand jury did not return an
indictment.
{¶7} Subsequently, L.C. began attending therapy sessions with a Cincinnati
Children’s Hospital psychologist. Over the course of these sessions, L.C. disclosed
more details about the abuse she suffered, so the psychologist referred her back to the
Mayerson Center for a second interview. This interview, conducted by licensed social
worker Emily Harman, focused on the instances of sexual abuse that L.C. did not share
during her first Mayerson Center interview. Following the second interview, the state
presented the matter to another grand jury, which issued a six-count indictment in
July 2020.
{¶8} The case proceeded to trial, and Mr. Calderon testified in his own
defense. He categorically denied engaging in any inappropriate contact or conduct
with L.C. To the contrary, he maintained that L.C. fabricated the abuse allegations to
deflect attention from her own unruly misconduct.
{¶9} Nevertheless, the jury found Mr. Calderon guilty of all six counts. At a
sentencing hearing, the trial court sentenced him to 18 months in prison for the four
counts of gross sexual imposition in violation of R.C. 2907.05(A)(4) and nine months
for the two counts of gross sexual imposition in violation of R.C. 2907.05(A)(1). The
sentences were made concurrent with each other. Mr. Calderon timely appeals, raising
five assignments of error.
II.
{¶10} In his first assignment of error, Mr. Calderon claims that the state’s
failure to divulge certain information to the defense before trial violated Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Before trial, defense
4
OHIO FIRST DISTRICT COURT OF APPEALS
counsel requested that the state provide the transcript of L.C.’s first grand jury
testimony. The trial court declined—at that point—to unseal the grand jury testimony,
reasoning that it would reconsider and render a final determination when L.C. testified
at trial. During a recess in jury selection, the day before L.C. testified, the state notified
the court that it had decided to relinquish the requested testimony. Defense counsel
accordingly had the requested testimony in hand prior to L.C. taking the stand.
{¶11} “[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Id. at 87. But Brady generally does not apply to delayed disclosure when the defense
has the ability to use the evidence during trial, in the absence of prejudice: “ ‘Brady
generally does not apply to delayed disclosure of exculpatory information, but only to
a complete failure to disclose.’ ” State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903,
114 N.E.3d 1138, ¶ 88, quoting United States v. Bencs, 28 F.3d 555, 560 (6th Cir.1994).
“ ‘Delay only violates Brady when the delay itself causes prejudice.’ ” State v. Osie,
140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 155, quoting United States v.
Patrick, 965 F.2d 1390, 1400 (6th Cir.1992).
{¶12} Before the grand jury, L.C. testified that her father never touched her
underneath her clothes, whereas at trial, L.C. testified as to multiple instances where
her father made inappropriate sexual contact with her underneath her clothes.
Assuming that this testimony was exculpatory, given that counsel possessed the
transcript at issue in advance of L.C.’s testimony, Mr. Calderon fails to show how the
delayed disclosure prejudiced him. In fact, defense counsel ably cross-examined L.C.
on these inconsistencies at trial.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} As Mr. Calderon sees it, had the state turned over L.C.’s first grand jury
testimony before trial, counsel would have been better prepared to impeach L.C. at
trial. But this strikes us as speculative, given the actual impeachment that occurred at
trial. Mr. Calderon sheds no light on what further impeachment efforts counsel would
have pursued had she been armed with the transcripts sooner.
{¶14} And although we can certainly imagine scenarios in which defense
counsel needs additional time to analyze late emerging exculpatory evidence—here,
defense counsel never requested a continuance to review the testimony (or any other
similar relief). On appeal, Mr. Calderon only insists that, had the state provided the
grand jury transcript before trial, defense counsel could have procured extrinsic
evidence to impeach L.C. regarding the conflicting testimony.
{¶15} Without a showing of what specific extrinsic evidence defense counsel
may have been able to procure, “[t]his claim is vague and speculative, * * * and thus
fails to reach the level of a reasonable probability, one that is ‘sufficient to undermine
confidence in the outcome.’ ” Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d
588, at ¶ 156, quoting State v. Johnson, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988),
paragraph five of the syllabus. Mr. Calderon does not explain how earlier disclosure
of L.C.’s first grand jury testimony would have enhanced the ability of the defense to
impeach L.C. Without any showing of prejudice based on the extant record, we
overrule the first assignment of error.
III.
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} In his second assignment of error, Mr. Calderon claims that the time
periods of the offenses alleged in his indictment were overbroad, preventing him from
presenting an effective defense. He alleges that the trial court erred by instructing the
jury that they only need to find that the offense(s) “took place on a date reasonably
near the date claimed” in the indictment. But Mr. Calderon failed to object to this
instruction at trial, limiting our review to plain error. State v. Owens, 162 Ohio St.3d
596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 7 (“When a defendant fails to object to the
jury instructions, [he] waives all but plain error.”).
{¶17} Under the United States and Ohio Constitutions, “an individual accused
of a felony is entitled to an indictment setting forth the ‘nature and cause of the
accusation.’ ” State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985). In the
indictment, the state must assert “all material facts constituting the essential elements
of an offense” so that the accused not only has “adequate notice and opportunity to
defend” but also may “protect himself from any future prosecutions for the same
offense.” Id. But, “[o]rdinarily, precise times and dates are not essential elements of
offenses.” Id. at 171.
{¶18} In the context of child-abuse prosecutions, “[l]arge time windows * * *
are not in conflict with constitutional notice requirements.” State v. Svoboda, 2021-
Ohio-4197, 180 N.E.3d 1277, ¶ 124 (1st Dist.), quoting State v. Morgan, 12th Dist.
Brown Nos. CA 2009-07-029 and CA 2009-08-033, 2010-Ohio-1720, ¶ 12. This is
because, “[i]n many cases involving the sexual abuse of children, the victims are simply
unable to remember exact dates, especially where the crimes involve a repeated course
of conduct over an extended period of time.” State v. See, 1st Dist. Hamilton Nos. C-
190251 and C-190252, 2020-Ohio-2923, ¶ 17.
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} “Child abuse cases can involve broad time periods.” Svoboda at ¶ 126,
citing See at ¶ 19 (one year); State v. Mundy, 99 Ohio App.3d 275, 296, 650 N.E.2d
502 (2d Dist. 1994) (one year to five years); State v. Adams, 2d Dist. Greene Nos. 2013
CA 61 and 2013 CA 62, 2014-Ohio-3432, ¶ 12 (four years, seven years, and eight years).
The broadest time period on any single charge in Mr. Calderon’s indictment was the
three-month window alleged in count one. The time periods specified for the
remaining counts in the indictment ranged from one day to two months. Mr. Calderon
fails to demonstrate that the time periods alleged in his indictment spanned so broadly
that it prevented him from effectively defending himself.
{¶20} Moreover, the trial court borrowed the jury instruction nearly verbatim
from the Ohio Jury Instructions, CR Section 413.07 (Rev. May 21, 2022) (When time
is not essential to an offense, “[i]t is not necessary that the state prove that the offense
was committed on the exact day as charged in the
(indictment)(information)(complaint). It is sufficient to prove that the offense took
place on a date reasonably near the date claimed.”). In light of the instruction’s
tracking the pattern jury instructions and the caselaw discussed above, we see nothing
in the instruction that deprived the defendant of due process or that rose to the level
of plain error. The second assignment of error is accordingly overruled.
IV.
{¶21} In his third assignment of error, Mr. Calderon asserts that his
convictions for counts one through five of his indictment run counter to the manifest
weight of the evidence, and challenges the sufficiency of the evidence that led to his
convictions on these counts.
8
OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} The test for determining the sufficiency of the evidence is whether,
“after viewing the probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt.” State v. Scott, 1st
Dist. Hamilton Nos. C-200385 and C-200403, 2021-Ohio-3427, ¶ 23, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Sufficiency
determinations are reviewed de novo but “the court is not to weigh the evidence.”
State v. McDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12; State v.
Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15 (“Our [sufficiency-
of-the-evidence] review is de novo.”). “And when evidence is susceptible to more than
one construction, a reviewing court must give it the interpretation that is consistent
with the judgment.” In re J.C., 1st Dist. Hamilton No. C-180493, 2019-Ohio-4027, ¶
20.
{¶23} In reviewing a claim challenging the manifest weight of the evidence, we
sit as a “thirteenth juror,” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997), and “review the entire record, weigh the evidence and reasonable inferences,
[and] consider the credibility of the witnesses.” State v. Barnthouse, 1st Dist.
Hamilton No. C-180286, 2019-Ohio-5209, ¶ 6. But we will reverse the trial court’s
decision to convict and grant a new trial only in “ ‘exceptional cases in which the
evidence weighs heavily against the conviction.’ ” State v. Sipple, 2021-Ohio-1319, 170
N.E.3d 1273, ¶ 7 (1st Dist.), quoting Martin at 175.
{¶24} Mr. Calderon takes issue with the inexactitude in the indictment and
imprecision in L.C.’s testimony regarding the timing of counts one through five,
framing both as sufficiency and manifest-weight problems.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} As addressed in our review of Mr. Calderon’s second assignment of
error, however, precise dates and times of the offenses alleged in the indictment were
not required. “[T]he state is given a certain amount of latitude in child sexual abuse
cases and is not strictly held to proving that a crime occurred during a period set forth
in the indictment. This is so partly because the specific time and date of the offense
are not elements of the offense.” State v. Gus, 8th Dist. Cuyahoga No. 85591, 2005-
Ohio-6717, ¶ 6. Here, L.C. was a minor at the time of the ongoing abuse, she was
related to Mr. Calderon, she lived in the same home as Mr. Calderon, and multiple
instances of sexual abuse occurred. L.C. also provided a detailed account of each
instance of sexual abuse. Under such circumstances, viewing the evidence in a light
most favorable to the state, sufficient evidence existed to convict Mr. Calderon. A
rational trier of fact could have found the essential elements of the crimes proven
beyond a reasonable doubt. Nor do we see any manifest-weight problem—the totality
of the evidence leads us to conclude that the jury did not clearly lose its way and create
a manifest miscarriage of justice. We accordingly overrule Mr. Calderon’s third
assignment of error.
V.
{¶26} In his fourth assignment of error, Mr. Calderon challenges the
admissibility of expert testimony, faulting the trial court for allowing Ms. Harman and
Ms. Cremeans to testify as expert witnesses. But because Mr. Calderon raised no
objection to Ms. Harman’s or Ms. Cremeans’s qualifications or methodology as expert
witnesses, we can review his claim only for plain error. State v. Baston, 85 Ohio St.3d
418, 423, 709 N.E.2d 128 (1999). His failure to develop the record on these points
further limits his ability to fashion a persuasive argument.
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} For instance, Mr. Calderon contends that neither Ms. Cremeans nor Ms.
Harman satisfied the requirements of Evid.R. 702 to testify as expert witnesses on the
topic of delayed and incomplete disclosure. Pursuant to Evid.R. 702, a witness may
testify as an expert if the following requirements are met:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons[;]
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or
other specialized information. Evid.R. 702.
{¶28} Ms. Cremeans testified that she had extensive experience working with
child sexual assault victims. She received her bachelor’s and master’s degrees in social
work, completed specialized training with the National Child Advocacy Center
regarding interviewing children who allege sexual abuse, and has worked with victims
of child sexual abuse for over ten years. Among her qualifications, she has conducted
over 600 forensic interviews with children who have alleged physical or sexual abuse.
{¶29} Ms. Harman testified in a similar vein. She received her bachelor’s and
master’s degrees in social work, earned a certificate in child abuse recognition, and is
a licensed independent social worker in the state of Ohio. Beyond participating in
specialized training (such as the Ohio Network of Children’s Advocacy Centers’
forensic interviewing training), she estimated that she has conducted over 1,000
forensic interviews with children alleging physical or sexual abuse.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} Mr. Calderon generally alleges that neither Ms. Cremeans nor Ms.
Harman was qualified to testify as an expert, but he presents no concrete argument as
to how either witness failed to meet the requirements of Evid.R. 702. And, of course,
if trial counsel had concerns related to qualifications or methodology, such matters
should have been explored at trial in order to provide us a comprehensive record to
review. Based on the record at hand, we find no plain error in the trial court’s decision
to qualify Ms. Cremeans and Ms. Harman as expert witnesses.
{¶31} In related fashion, Mr. Calderon takes issue with an email in which the
assistant prosecuting attorney allegedly told Ms. Harman what information to include
in her report. Defense counsel raised this issue at trial, seizing the email as a type of
smoking gun. The prosecuting attorney, however, explained that she had “told [Ms.
Harman] to put the things she testifies to in the report. I’m not telling her what to say.
But I know what her testimony is going to be. I needed her to put that in writing so I
could turn it over to the defense.” Indeed, Crim.R. 16(K) requires that expert reports
be turned over in criminal cases. The trial court determined that defense counsel could
use the email during her cross-examination of Ms. Harman. We find no error in the
trial court’s decision to admit Ms. Harman’s testimony after having learned the
contents of the email, and allowing defense counsel to cross-examine based on the
email blunted any potential prejudice. Accordingly, we overrule Mr. Calderon’s fourth
assignment of error.
VI.
12
OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} In his fifth and final assignment of error, Mr. Calderon insists that he
was denied his constitutional right to the effective assistance of counsel. He contends
that his trial counsel proved ineffective in four respects: (1) for failing to call an expert
witness to testify about delayed disclosure; (2) for failing to question and exercise
peremptory challenges on particular potential jurors; (3) for failing to object to leading
questions and hearsay testimony; and (4) for failing to object to Ms. Cremeans’s expert
testimony about delayed disclosure. Mr. Calderon also asserts that, even if each
instance individually does not constitute ineffective assistance of error, these various
failures taken together amount to cumulative error.
{¶33} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State v.
Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45, citing the Sixth
Amendment to the United States Constitution and Article I, Section 10, Ohio
Constitution. In reviewing an ineffective assistance of counsel claim, we consider
“whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland
v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To justify
a finding of ineffective assistance of counsel, the appellant must overcome a strong
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy.” State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
An appellant must demonstrate that (1) his counsel’s performance was deficient and
(2) that this deficient performance prejudiced the defense. Strickland at 687. And to
show prejudice, an appellant “must prove that there exists a reasonable probability
13
OHIO FIRST DISTRICT COURT OF APPEALS
that. were it not for counsel’s errors, the result of the trial would have been different.”
State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
{¶34} Mr. Calderon first criticizes his trial counsel for failing to call an expert
witness to testify about delayed disclosure. “Generally, the decision not to call an
expert witness does not constitute ineffective assistance of counsel because that
decision is solely a matter of trial strategy.” State v. Patton, 1st Dist. Hamilton No. C-
190694, 2021-Ohio-295, ¶ 30, citing State v. Coleman, 45 Ohio St.3d 298, 307-308,
544 N.E.2d 622 (1989). And “[b]ecause the decision not to present expert testimony
may be tactical, the decision of trial counsel to rely on cross-examination of the state’s
expert does not equate to ineffective assistance of counsel.” Patton at ¶ 30, citing State
v. McRae, 1st Dist. Hamilton No. C-180669, 2020-Ohio-773, ¶ 19. On direct appeal,
it is often impossible for us to review such claims without any proffer or other evidence
in the record about how a hypothetical expert might have testified.
{¶35} The best that Mr. Calderon can muster is that his hoped-for expert
would have undermined L.C.’s credibility and the trial outcome likely would have been
different. Perhaps, but we have no way of knowing that without elaboration on what,
if any, facts and data that a defense expert on the disclosure process of child sexual
assault victims would have offered. Because Mr. Calderon cannot demonstrate the
nature of any defense expert testimony (and how its absence affected the trial), he fails
to establish that he received ineffective assistance of counsel in this regard.
{¶36} Mr. Calderon next argues that his trial counsel stumbled by failing to
exercise peremptory challenges or question potential jurors during voir dire. In this
respect, he features three different jurors: (1) a juror who was a victim of a crime in
which the perpetrator was never found; (2) another juror who had “strong feelings
14
OHIO FIRST DISTRICT COURT OF APPEALS
about the case because he occupationally deals with children and the case was based
on a child;” and (3) a juror who was a psychologist who worked with children.
{¶37} Although defense counsel did not individually question any of these
jurors, the state thoroughly questioned each of them about these potential biases.
During the state’s inquiry, all three identified jurors assured the court that they would
be able to be fair and impartial in this case.
{¶38} After the state’s questioning, defense counsel reminded the jurors that
they could only find Mr. Calderon guilty if the state reached its burden of proof beyond
a reasonable doubt, and the trial court excused a juror who had received years of
training on child sexual assaults as a volunteer with the Catholic church. On this
record, Mr. Calderon fails to demonstrate that his counsel’s performance was deficient
for failing to exercise peremptory challenges or otherwise further question the
identified jurors during voir dire.
{¶39} Mr. Calderon also argues that his trial counsel improperly failed to
object to hearsay statements, statements made in violation of the Confrontation
Clause, and leading questions.
{¶40} “In all criminal prosecutions, the accused shall enjoy * * * the right to
be confronted with the witnesses against him.” Crawford v. Washington, 541 U.S. 36,
38, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), quoting the Sixth Amendment to the
United States Constitution. The Confrontation Clause prohibits the introduction of
testimonial statements by a nontestifying witness. Crawford at 53-54. Mr. Calderon
takes issue with the testimony of Detective Andrew Stoll regarding statements made
to him by L.C. and L.C.’s mother but fails to develop this argument in his appellate
brief. Beyond making a conclusory allegation that his trial counsel failed to object to
15
OHIO FIRST DISTRICT COURT OF APPEALS
inadmissible hearsay statements, Mr. Calderon does not make any concrete showing
of prejudice. From our review of the record, Detective Stoll’s statements pose no
Confrontation Clause or hearsay problem. While the statements he repeated may be
testimonial, they can be attributed to testifying witnesses. In fact, both L.C. and her
mother’s testimonies at trial included the exact statements repeated by Detective Stoll.
Trial counsel had the opportunity to cross-examine L.C. and her mother on these
statements. Accordingly, Mr. Calderon has failed to demonstrate that trial counsel
was ineffective for failing to object to Detective Stoll’s statements.
{¶41} Mr. Calderon’s claim that his trial counsel failed to object to leading
questions fares no better. While ordinarily “[l]eading questions should not be used on
the direct examination of a witness,” Evid.R. 611(C), “it is within the trial court’s
discretion to allow leading questions on direct examination.” State v. Jackson, 92
Ohio St.3d 436, 449, 751 N.E.2d 946 (2001). “Failure to object to leading questions
does not constitute ineffective assistance of counsel.” State v. Bevins, 1st Dist.
Hamilton No. C-050754, 2006-Ohio-6974, ¶ 65. Moreover, many of the questions to
which Mr. Calderon cites were directed toward L.C. While these questions were
indisputably leading, trial counsel’s shortage of objections might have reflected trial
strategy of not interrupting emotional testimony by the young victim. State v.
Phillips, 1st Dist. Hamilton No. C-190635, 2021 Ohio App. LEXIS 1780, *3 (May 26,
2021). Given the state of the record, we have no basis for second-guessing defense
counsel’s trial strategy. Mr. Calderon does not establish that trial counsel was
ineffective for failing to object to hearsay statements and leading questions.
{¶42} Next, Mr. Calderon contends that his counsel should have objected to
Ms. Cremeans’s testimony about delayed disclosure. But, as discussed in our review
16
OHIO FIRST DISTRICT COURT OF APPEALS
of the fourth assignment of error, the lack of objection or record development on this
point below renders it difficult for us to assess the ineffective-assistance claim on
direct review. Moreover, because Mr. Calderon only criticizes Ms. Cremeans’s
testimony on delayed disclosure in his ineffective assistance claim, and because Ms.
Harman offered similar testimony about delayed disclosure, Mr. Calderon cannot
show that the results of the trial would have been different had his counsel objected to
Ms. Cremeans’s testimony.
{¶43} Finally, Mr. Calderon argues that defense counsel’s failure to object at
various points throughout the trial amounted to cumulative error, violating his
constitutional rights. However, having considered his claims both individually and in
the aggregate, we find that counsel’s performance did not fall outside the wide range
of reasonable professional assistance.
{¶44} Accordingly, Mr. Calderon does not establish that trial counsel was
ineffective in any of the four instances he identified, nor does counsel’s failure to object
at various points throughout his trial constitute cumulative error. Mr. Calderon’s fifth
assignment of error is overruled.
* * *
{¶45} In light of the foregoing analysis, we overrule all of Mr. Calderon’s
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
17