from the Franklin County Court of Common Pleas C.P.C. Nos.
15CR-2461, 15CR-2462, 15CR-4300.
O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher,
Barbara A. Farnbacher.
W. Barstow, for appellant.
1} Defendant-appellant, T.E.H., appeals from three
judgment entries of the Franklin County Court of Common Pleas
finding appellant guilty of multiple counts of rape with
sexually violent predator specifications, gross sexual
imposition with sexually violent predator specifications,
unlawful sexual conduct with a minor, importuning, and
disseminating matter harmful to a minor. For the following
reasons, we affirm the judgments of the trial court.
FACTS AND PROCEDURAL HISTORY
2} This case involves the appeal of appellant's
convictions in three cases involving separate child victims.
In case No. 15CR-2461 (16AP-384), appellant was indicted on
ten counts of rape with sexually violent predator
specifications for his alleged sexual conduct with R.H., who
was 11 years old at the time of the conduct. In case No.
15CR-2462 (16AP-385), appellant was indicted on three counts
of rape with sexually violent predator specifications, three
counts of gross sexual imposition with sexually violent
predator specifications, and three counts of importuning, all
involving A.Y., who was 9 or 10 years old at the time of the
incidents. In case No. 15CR-4300 (16AP-386), arising from
appellant's alleged actions with 13-year-old C.S.,
appellant was indicted on six counts of rape with sexually
violent predator specifications, six counts of unlawful
sexual conduct with a minor, and three counts of
disseminating matter harmful to juveniles.
3} The trial court granted the motion of
plaintiff-appellee, State of Ohio, to join the three cases
for trial. The jury trial commenced March 22, 2016, and
appellee commenced its case-in-chief.
4} C.S. testified that his birthdate is January 27,
1988. In 2011, when he was 13 years old, he lived with his
grandmother, who was his guardian, and his sister, who was a
year or so older than him. His father lived in Florida and
his mom passed away in either 2010 or 2011. He was bullied in
school. Kids picked on him for living with his grandmother,
and because she did not have much money, he wore the same
clothes to school several times a week.
5} C.S. was introduced to appellant by his sister in
2011. At that time, C.S. did not have many friends, and he
had never had a male figure in his life. He went over to
appellant's house several times "from March to
September at least" and estimated that he saw appellant
over one hundred times. (Tr. at 604.) Appellant treated him
like a little brother, like "part of the family."
(Tr. at 606.) Appellant bought C.S. several things, such as a
cell phone and clothing, took C.S. shopping at the mall and a
concert in Cleveland, and bought him a season pass to Kings
Island. Appellant paid C.S.'s phone bill.
6} According to C.S., in exchange for what appellant
bought him, appellant wanted sexual favors. The first time
this happened, appellant had bought him a lot of clothes at
the mall and, shortly thereafter, told C.S. that he wanted
C.S. to let him do sexual acts as a way of paying him back.
C.S. was confused and did not really know what he meant. At
appellant's house, appellant asked him to pull down his
pants, which appellant did, and appellant began sucking his
penis until C.S. ejaculated. Appellant told him it was
alright and nothing was wrong with doing it and that it felt
good and was natural.
7} C.S. testified that this happened frequently over
a six-month period of time, where nearly every weekend there
would be some kind of sexual favor. Appellant also asked C.S.
to have anal sex with him and helped C.S. put a condom on.
C.S. did not want to have sex with appellant but thought if
he did not do it appellant would get mad and take his stuff
away. Appellant also asked C.S. to touch appellant's
penis and go up and down, which C.S. did. C.S. testified that
"[a]bout three times" appellant had pornography
playing on his TV or iPad while C.S. was present in the room.
(Tr. at 610.)
8} Appellant would often drive C.S. to the home of
appellant's cousin, S.H., where A.Y. lived. C.S. did not
really hang out with A.Y. and described A.Y. as mentally
challenged, "never was always there in his head."
(Tr. at 623.) The sexual favors occurred in S.H.'s home
as well as appellant's bedroom.
9} According to C.S., appellant kept a
spreadsheet-type of list on his computer keeping track of
what appellant bought for C.S., what C.S. owed him, and
"chores, " meaning sexual favors, that C.S.
performed to pay off his debt. (Tr. at 620.) Appellant would
sometimes get mad at C.S. when he would not come over and
would say he would take away stuff from him, like the phone.
10} C.S. testified that the last time a sexual act
occurred, appellant drove C.S. to a bridge and performed oral
sex on C.S. After the bridge incident, C.S. reported what was
happening to school personnel and spoke to a detective. At
the time, C.S. stated he was scared and confused about
everything and just wanted it to be over with and did not
want to be around appellant anymore. Because of what
appellant did, C.S. was confused about sex and did not know
what was right and wrong. C.S.'s grandmother could not
really drive and had problems getting C.S. to places the
detective wanted him to go, so the case "kind of just
got dropped." (Tr. at 634.) C.S. was okay with that
because he just wanted to forget it ever happened to him.
C.S. has been in counseling since he was 14 years old and now
understands that it was not his own fault and that he was
"being used" and "t[a]ken advantage of by
appellant. (Tr. at 608.)
11} Mary Zimmerman, a social worker contracted to
provide mental health support for the school district where
C.S. attended middle school, testified that C.S. disclosed
sexual abuse to her in September 2011. Zimmerman had known
C.S. from working with him since his sixth grade school year
and was listed on his "individual education plan"
for emotional disturbance. (Tr. at 528.) In the beginning of
his eighth grade year, C.S., who was upset and pacing,
disclosed that appellant had touched his private parts and
had C.S. touch appellant's private parts. C.S. stated
that appellant would keep track of how much money C.S. owed
him for things appellant bought C.S. and would reduce that
amount after a sex act. As a mandated reporter, Zimmerman
contacted Franklin County Children Services and also called
the police and C.S.'s grandmother.
12} Jennifer (Westgate) Sherfield, MSW, LISW-S, a
social worker employed as a forensic interviewer and mental
health advocate at the Center for Family Safety and Healing
at Nationwide Children's Hospital, testified to
conducting an interview with C.S. (as well as R.H., as
discussed later in this opinion). Sherfield explained that
"[g]rooming and conditioning" are terms used to
describe how perpetrators introduce children to the patterns
of sexual abuse by, for example, befriending and giving a
child things in exchange for sexual acts and introducing
sexual acts incrementally. (Tr. at 458.)
13} During the interview, C.S. told Sherfield that
he met appellant because his sister was dating
appellant's nephew, that he was being bullied at school,
and that kids were calling him gay. C.S. reported that during
the summer 2011, appellant would give him stuff and would
want sexual favors in return. C.S. described sexual favors as
meaning oral sex where appellant would give C.S. a "blow
job." (Tr. at 478.) Appellant would treat the sex act as
money; appellant would keep track on a list on a computer the
"chores" equating to sex acts and a money amount
and would let C.S. know what he "owed" for the
things appellant bought him. (Tr. at 478.) C.S. reported that
for the sexual favors, appellant gave him clothes, a generic
iPad, and an iPod Nano, took C.S. to a concert in Cleveland,
and gave C.S. a cell phone and put C.S. on his family plan.
14} Sherfield testified that C.S. said the first
incident occurred after appellant took C.S. to a mall, bought
him shoes, clothes, and "perfume." (Tr. 479.) When
they returned to appellant's house, appellant told C.S.
that C.S. owed him money for the things that he bought. When
C.S. told appellant he did not have any money, appellant told
C.S. that he would have to give him sexual favors. C.S. then
told Sherfield that appellant "put his mouth on [my]
private part and sucked my dick." (Tr. at 480.) C.S.
reported that this happened more than once-pretty much every
weekend that he hung out with appellant. He hung out with
appellant nearly every weekend of the summer. C.S. reported
that appellant "wanted [him] to sperm in
[appellant's] mouth" because appellant told him he
likes the taste. (Tr. 485.) C.S. additionally reported to
Sherfield that he sucked appellant's penis once or twice,
that "[appellant] made me have sex with his butt"
three times, and that appellant had a medical issue where he
"can't get hard." (Tr. at 482.) C.S. said that
appellant had gay porn on his iPad and that sometimes
appellant would turn on pornography when they were having
oral sex. C.S. denied that anyone had taken his picture
without clothes on or sent him pictures of themselves without
15} In the interview, C.S. told Sherfield that he
did not say anything back to appellant when appellant told
him to do sexual acts "because he was scared and thought
[appellant] would hurt him." (Tr. at 483.) C.S. denied
that appellant or anyone else threatened to hurt him. C.S.
reported that appellant was always cautious when he did
things and smart about it to not get caught, for example, not
talking over the phone about the sexual favors.
16} Sherfield testified that C.S. told her the last
incident of sexual conduct occurred when appellant gave C.S.
a blow job in a car under a bridge. C.S. expressed to
Sherfield that after the incident he had a bad nightmare that
appellant was going to kill him, and C.S. then told his
grandmother about what had happened and she told him he was
not allowed to talk to appellant anymore.
17} Detective Kevin Foos testified that in 2011 he
served as a detective in the Franklin County juvenile
division and that he was the primary investigator of
C.S.'s allegation of sexual abuse against appellant in
2011. Foos spoke with the school counselors and appellant,
observed C.S.'s interview at Children's Hospital, and
spoke separately to C.S. Foos testified that C.S.'s
description to him was consistent with his interview at
Children's Hospital and with what he told school
counselors. According to Foos, C.S. stated that appellant,
whose date of birth is April 16, 1968, performed oral sex on
C.S. around 30 times and that appellant gave him an iPad and
Nano but lost them, and gave him a phone that C.S. gave away.
Foos obtained a search warrant for appellant's computer
and seized the computer. Before receiving the results of the
computer analysis, Foos closed the case due to a lack of
corroboration and transferred out of the juvenile unit in
September or October 2012.
18} R.H. testified that his birthdate is September
17, 2002. When he was around 11 years old, R.H. would attend
church with his deceased father's former partner, who
introduced him to appellant. R.H. became very good friends
with appellant's cousin or nephew, G.C.,  who he thought
was about his age.
19} From the end of the school year in 2014 through
the whole summer and sometime after his 12th birthday, R.H.
would go over to appellant's house to spend the night.
R.H. thought appellant was a fun, cool guy; appellant bought
R.H. season passes to and took him to amusement parks, bought
him shirts, underwear, and expensive athletic shoes that his
mom could not afford, and took him to a shopping mall and
clothing stores. G.C. would go with them on the various
outings. R.H. also testified that appellant gave him an
iPhone and a tablet and that appellant broke the tablet when
appellant got mad at R.H.
20} When R.H. would spend the night, R.H. would
sleep on one of three beds, including appellant's bed
with appellant. G.C. would sleep in the room as well in one
of the smaller beds. R.H. testified that during this time,
appellant was "sucking my penis." (Tr. at 345.)
During the first incident, around the time school let out in
June 2014, appellant and R.H. were laying on appellant's
bed. G.C. left the room to take a shower, and appellant told
R.H. to take off all his clothes. R.H. did so, not knowing
really what to do. Appellant began sucking on R.H.'s
penis, R.H. told him to stop, and appellant did so. R.H. did
not know the exact number of times appellant performed oral
sex on him; he testified that it occurred "around the
whole summer"-"from June to September"-almost
every time he went over to appellant's house, a period
which lasted sometime after his birthday. (Tr. at 353-54.)
R.H. would tell him to stop almost every time, but appellant
would not stop, which made R.H. angry. R.H. denied that
appellant touched other parts of his body.
21} R.H. testified that he disclosed what happened
to his father's former partner, who told R.H. to tell his
mom. Sometime around his 12th birthday, R.H. told his mother
"that [appellant] raped me." (Tr. at 343.)
According to R.H., appellant told R.H. that he had a list of
other kids who he had touched. R.H. denied knowing A.Y. or
22} On cross-examination, R.H. agreed to remembering
an incident in which his father's former partner played a
pornographic DVD of men engaged in sexual activity about the
time R.H. was interviewed by Children's Hospital
regarding appellant. R.H. denied that his father's former
partner ever had touched him or asked him to do anything of a
23} Sherfield, the Nationwide Children's
Hospital social worker, testified to conducting a forensic
interview with R.H. According to Sherfield, R.H. reported
that appellant gave him oral sex "around 15 to 16
times" in exchange for things such as season passes to
amusement parks, clothes, and an iPad. (Tr. at 457.) R.H.
reported that sperm went in appellant's stomach. During
the interview, R.H. told Sherfield that appellant became
angry and smashed the iPad after R.H. said he could not be
doing this anymore and that appellant told him to "take
it to the grave." (Tr. at 461.) R.H. denied to Sherfield
that appellant touched him anywhere else on his body or that
R.H. touched appellant. R.H. reported seeing a list above
appellant's bed entitled " 'People I
Touched' with dudes' names." (Tr. at 462.)
24} The sexual assault nurse examiner at Nationwide
Children's Hospital, Gail Horner, testified to conducting
the physical examination for R.H. on November 25, 2014, and
that the examination of R.H. was normal and did not reveal
physical findings of trauma or sexually transmitted diseases.
Horner testified that, in her experience, she would not
expect any physical findings based on R.H.'s reported
histories. She noted that the majority of children they see
for sexual abuse show no physical findings during the exam
and testified that a man putting his mouth around a boy's
penis is typically not going to leave any physical findings,
and touching with the hands would be even less likely than a
mouth to leave any physical findings.
25} Detective Brian Sheline, an officer with the
Columbus Division of Police assigned to investigate child
sexual abuse allegations, testified to receiving information
and a referral from Children Services in November 2014 about
abuse concerns involving R.H. Sheline obtained a search
warrant for appellant's home, and in early December 2014,
went to appellant's home to attempt to speak with
appellant. Appellant allowed Sheline into his bedroom, which
included one adult size bed and two child size beds. Sheline
produced the warrant and searched and photographed the
bedroom, finding, among other items, a notebook with a list
of names entitled "People That I've Touched, "
"coming of age" books for young boys, and
pornographic DVDs. (Tr. at 142, 144.)
26} In speaking with appellant, Sheline learned of
the previous 2011 investigation of appellant by the Franklin
County Sheriffs Office involving allegations made by C.S.
Sheline contacted an investigator in the sheriffs office
regarding that prior investigation and interviewed C.S.
Detective Joe Schluer, an officer with the Franklin County
Sheriffs Office assigned to handle juvenile sex crimes,
testified he was contacted by Sheline, and Schuler submitted
the computer recovered in the C.S. investigation for
27} Sheline obtained a warrant for appellant's
arrest. Officer Charles Distelhorst of the Columbus Division
of Police testified to executing the warrant at
appellant's home sometime after 11:00 p.m. on May 11,
2015. According to Distelhorst, after appellant's
roommate let them in the house, Distelhorst and several other
officers proceeded upstairs to appellant's bedroom. As
they went up the stairs, Distelhorst noticed a camera on top
of appellant's bedroom door pointing down the stairs.
Distelhorst knocked and opened the unlocked door. Appellant
was lying on a bed under the covers, and a child of about ten
years in age, A.Y., was lying on the same bed under the
covers. Appellant had underwear and a t-shirt on, and A.Y.
wore underwear only. A third young man in pajamas was in the
room on a small bed. Appellant complied with
Distelhorst's orders, and appellant was placed under
arrest. A.Y. was taken to Nationwide Children's Hospital,
and the officers called Sheline to meet A.Y. at the hospital.
28} At the hospital, Emily Combs, MS, LISW, LCSW, a
forensic interviewer, interviewed A.Y. at approximately 2:00
a.m. and, shortly thereafter, wrote a report based on that
interview. Her first impression of AY. was that he was
possibly developmentally delayed. Combs testified that
A.Y.'s medical history included a diagnosis of
posttraumatic stress disorder after witnessing his mom commit
suicide and was being treated with ...