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In re S.M.B.

Court of Appeals of Ohio, Tenth District

September 5, 2019

In the Matter of: S.M.B. (Defendant-Appellant).

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 14JU-5674), Division of Domestic Relations, Juvenile Branch

         On brief:

          Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant.

          Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.

         Argued:

          Timothy E. Pierce.

          Valerie Swanson.

          DECISION

          SADLER, J.

         {¶ 1} Defendant-appellant, S.M.B., appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, adjudicating him a delinquent minor for committing rape and gross sexual imposition. For the foregoing reasons, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} This case arose from a complaint filed by plaintiff-appellee, State of Ohio, on April 29, 2014, alleging that minor child, S.M.B., was delinquent due to the offenses of gross sexual imposition, in violation of R.C. 2907.05, on a child, T.R., age ten; rape, in violation of R.C. 2907.02, on a child, M.P., age six; and gross sexual imposition, in violation of R.C. 2907.05, on a child, K.M., age three. Count 1 of the complaint alleges S.M.B. "did grab the breasts of [T.R.] under her bra, after throwing items down her shirt and then retrieving them. [S.M.B.] also grabbed the vaginal area outside of clothing of [T.R.] when she stood to leave the room. [T.R.] is 10 years old." (Apr. 29, 2014 Compl. at 1.) Count 2 of the complaint alleges S.M.B. "did use his hand to touch [M.P.] in the genital area under her clothing as well as have [M.P.] 'suck his privates like a popsicle.' * * * [M.P.] being 5 years of age. (Apr. 29, 2014 Compl. at 1.) Count 3 alleges that S.M.B. "did touch the penis of [K.M.]. [K.M.] is 3 years old." (Apr. 29, 2014 Compl. at 2.) Based on S.M.B.'s birth date, June 18, 1999, he was 14 years old when he allegedly committed the offenses charged in the complaint.

         {¶ 3} On April 30, 2015, S.M.B., by and through his parents, J.B. and B.B., denied the allegations in the complaint. On several days in July and August 2015, a juvenile court magistrate held an adjudicatory hearing on the complaint. On September 1, 2015, the magistrate issued a decision, including findings of fact and conclusions of law, wherein the magistrate found the state had proven the allegation of rape as to victim M.P., beyond a reasonable doubt, and the allegation of gross sexual imposition as to victim K.M., beyond a reasonable doubt. The magistrate found the state had failed to prove the allegation of gross sexual imposition as to victim T.R. and recommended dismissal of Count 1 of the delinquency complaint. Accordingly, the magistrate adjudicated S.M.B. to be a delinquent minor for having committed the offense of rape, as alleged in Count 2 of the complaint, and the offense of gross sexual imposition, as alleged in Count 3 of the complaint.

         {¶ 4} On December 1, 2015, S.M.B., by and through legal counsel, filed an objection to the magistrate's decision wherein S.M.B. challenged "rulings on evidentiary issues and the underlying conclusions of the Magistrate" and claimed "the adjudication by the Magistrate was flawed and not substantiated by the evidence presented." (Dec. 1, 2015 Obj. at 2.) On June 27, 2016, S.M.B. filed the transcript of evidence presented to the magistrate in support of his objection. On October 17, 2016, S.M.B. filed supplemental objections to the magistrate's decision. The supplemental objections included specific challenges to the magistrate's competency determination and certain evidentiary rulings, as well as a claim that the evidence did not support the magistrate's finding that S.M.B. committed the offenses of rape and gross sexual imposition.

         {¶ 5} On November 9, 2016, the juvenile court issued a decision and entry overruling the objections and adjudicating S.M.B. delinquent for committing the offenses of rape and gross sexual imposition. S.M.B. timely appealed to this court from the judgment of the juvenile court.

         II. ASSIGNMENTS OF ERROR

         {¶ 6} S.M.B. assigns the following as trial court error:

[1.] The lower court erred when it allowed [M.P.] to testify when she was not a competent witness. The admission of [M.P.'s] testimony violated Evid.R. 601(A) and R.C. 2317.01 and [S.M.B.'s] right to a fair trial under Article I, Sections 1, 10, and 16 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the United States Constitution.
[2.] The lower court erred when it permitted prosecution witness [M.P.] to testify without her having been administered an oath or affirmation declaring she would do so truthfully with an understanding of the penalties for not testifying truthfully. This violated [S.M.B.'s] rights under Article I, Sections 7 and 10 of the Ohio Constitution, the Sixth and Fourteenth Amendments of the United States Constitution, R.C. 3.21, R.C. 2317.30, R.C. 2945.46, Juv.R. 29(E)(3), and Evid.R. 603.
[3.] The lower court erred when it admitted the statements of [M.P.] and [K.M.] to [C.P.] and [M.M.] (respectively) as hearsay exceptions under Evid.R. 803(2). This violated Evid.R. 802 and [S.M.B.'s] right to a fair trial under Article I, Sections 1, 10, and 16 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the United States Constitution.
[4.] The lower court committed plain error when it admitted during trial the statements of incompetent declarants [K.M.] and [M.P.]. This violated Evid.R. 103(D) and 802 and [S.M.B.'s] right to a fair trial under Article I, Sections 1, 10, and 16 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the United States Constitution.
[5.] The lower court erred in finding [S.M.B.] delinquent inasmuch as its verdicts were against the manifest weight of the evidence.

         III. STANDARD OF REVIEW

         {¶ 7} Civ.R. 53 governs proceedings before a magistrate, including objections to a magistrate's decision. AM & JV, LLC v. MyFlori, LLC, 10th Dist. No. 16AP-713, 2018-Ohio-600, ¶ 18. In ruling on objections to a magistrate's decision, the trial court must undertake an independent review of the matters objected to in order to ascertain whether the magistrate has properly determined the factual issues and appropriately applied the law. Id., citing Civ.R. 53(D)(4)(d). In accordance with Civ.R. 53, a trial court reviews a magistrate's decision de novo. Id., citing James v. My Cute Car, LLC, 10th Dist. No. 16AP-603, 2017-Ohio-1291, ¶ 13. The standard of review on appeal from a trial court judgment that adopts a magistrate's decision varies with the nature of the issues that were (1) preserved for review through objections before the trial court and (2) raised on appeal by assignment of error. AM & JV at ¶ 18, citing In re Guardianship of Schwarzbach, 10th Dist. No. 16AP-670, 2017-Ohio-7299, ¶ 14.

         IV. LEGAL ANALYSIS

         {¶ 8} Because our resolution of S.M.B.'s fifth assignment of error requires us to set out the factual foundation necessary for our analysis of his remaining assignments of error, we will begin our analysis with that assignment of error.

         A. S.M.B.'s Fifth Assignment of Error

         {¶ 9} In S.M.B.'s fifth assignment of error, S.M.B. argues the adjudication of delinquency was against the manifest weight of the evidence. We disagree.

         {¶ 10} In re M.T., 10th Dist. No. 05AP-816, 2006-Ohio-3613, "set[s] forth the standard of review when a juvenile delinquency adjudication is challenged on manifest weight grounds." In re A.W., 10th Dist. No. 09AP-312, 2009-Ohio-5093, ¶ 4. The standard is as follows:

A challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. The court of appeals sits as a "thirteenth juror" and after reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.
A defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial. The determination of weight and credibility of the evidence is for the trier of fact. The rationale is that the trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimony is credible. The trier of fact is free to believe or disbelieve all or any of the testimony. Consequently, although an appellate court must act as a "thirteenth juror" when considering whether the manifest weight of the evidence requires reversal, it must give great deference to the fact finder's determination of the witnesses' credibility. (Citations omitted.) In re M.T. at ¶ 8-9.

Id.

         {¶ 11} With respect to victim M.P., the juvenile court found S.M.B. delinquent for committing rape, in violation of R.C. 2907.02(A)(1)(b), which provides, in relevant part, that "[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." The definition of "sexual conduct" includes "fellatio * * * and * * * the insertion, however slight, of any part of the body * * * into the vaginal or anal opening." R.C. 2907.01(A).

         {¶ 12} With regard to victim K.M., the juvenile court found S.M.B. delinquent for committing gross sexual imposition, in violation of R.C. 2907.05(A)(4), which provides, in relevant part, that "[n]o person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person."" 'Sexual contact' means any touching of an erogenous zone of another, including * * * genitals * * * for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).

         1. Victim M.P.

         {¶ 13} The testimony at trial regarding the sexual abuse of victim M.P. was as follows: M.P. testified that J.B. was her babysitter. When the prosecutor asked M.P. if something happened to her body, she responded "[y]es," and she added it "[f]elt weird." (July 16, 2015 Tr. at 14.) When the prosecuting attorney asked a follow up question, the following exchange took place:

Q. You said it felt weird and then you did something; show us what you did. Okay.
ASSISTANT PROSECUTING ATTORNEY JULIAN: May the record reflect that she's pointing to her vaginal area?
ATTORNEY LISTON: Well she's making an up and down motion in front of her waist.
MAGISTRATE VAN DYKE: And that I will agree to. That's what the record will reflect, at this point.
* * *
Q. [Y]ou said it felt weird, and you pointed to an area on your body; what happened?
A. He touched my private parts.
Q. Who did?
A. [S.M.B.]

(July 16, 2015 Tr. at 15-16.)

         {¶ 14} M.P. was able to make an in-court identification of S.M.B. as the person who had "touched [her] private parts" with "[h]is hands." (July 16, 2015 Tr. at 17.) She also testified: "He made me suck on his thingy." (July 16, 2015 Tr. at 17.) M.P. stated that S.M.B. did this "one time." (July 16, 2015 Tr. at 19.)[1] M.P. testified that she told her mother about this and that her mother took her to see the doctor. M.P. further stated that she told the doctor what happened and she also "told a cop." (July 16, 2015 Tr. at 20.)

         {¶ 15} M.P.'s mother, C.P., testified that in 2014, S.M.B.'s mother, J.B., ran a daycare center out of her home and that she used J.B.'s services to care for M.P. C.P. testified that on April 17, 2014, she and M.P. were watching the film "Frozen" when M.P. kept saying to her "I'm not supposed to say anything." (July 16, 2015 Tr. at 51, 52.) According to C.P., M.P. was calm initially but then she got nervous. Defense counsel objected, and the judge provisionally allowed C.P. to testify about M.P.'s out-of-court statements under the excited utterances exception to the hearsay rule.

         {¶ 16} C.P. testified that M.P. told her: "[S.M.B.] has secrets." (July 16, 2015 Tr. at 53.) When C.P. asked M.P. what she meant, M.P. responded she "wasn't supposed to tell." (July 16, 2015 Tr. at 52-53.) C.P. testified that she told her daughter: "you don't keep secrets from mommy. You tell mommy." (July 16, 2015 Tr. at 53.) C.P. testified that M.P. then told her "[S.M.B.] touches her butt." (July 16, 2015 Tr. at 54.) According to C.P., M.P. uses the word "butt" when referring either to her vagina and her anus. (July 16, 2015 Tr. at 54.) M.P. pointed between her legs when C.P. asked her where on her body S.M.B. touched her. When C.P. asked M.P. if her clothes were on or off when S.M.B. touched her butt, M.P. stated that her clothes were off.

         {¶ 17} On hearing her daughter's revelation, C.P. phoned her sister and then made the decision to take M.P. to Nationwide Children's Hospital ("Children's"). During her trial testimony, C.P. recalled that "maybe a month or two before" M.P. disclosed the sexual abuse, M.P. was having "a lot of difficulty sleeping. * * * She was soiling her pants; having accidents when she didn't really do that. She was more clingy. She would cry." (July 16, 2015 Tr. at 73, 74.)

         {¶ 18} Toni Soltes works in Children's emergency room as a medical social worker. Soltes testified that on April 17, 2014, she was working the triage desk when she was contacted about alleged sexual abuse concerning M.P. Soltes conducted an interview of M.P., at which time M.P. disclosed something had happened at her babysitter's house. M.P. told Soltes that "[S.M.B.] had touched her butt with his dirty hands." (July 17, 2015 Tr. at 38.) With the aid of an anatomical drawing, Soltes encouraged M.P. to show her the part of her body S.M.B. touched. According to Soltes, M.P. identified her vagina as her "butt," and she told Soltes that this happened in front of KM. and another child. (July 17, 2015 Tr. at 46.) Soltes' notes from the interview state that "[M.P.] did tell me [S.M.B.] touches her butt * * * with his dirty hands under her clothes in the hallway." (July 17, 2015 Tr. at 73.) M.P. also told Soltes that S.M.B. "had taken her into his mother's room where he would ask me to suck on his private like a popsicle." (July 17, 2015 Tr. at 48.)

         {¶ 19} According to Soltes, M.P. stated this behavior by S.M.B. occurred "a lot" of times. (July 17, 2015 Tr. at 89.) M.P. further disclosed that S.M.B. "took pictures of her two or three times" and "he had told her not to tell." (July 17, 2015 Tr. at 49.) After talking with M.P., Soltes recommended that M.P. be linked with a therapist for trauma-related treatment.

         {¶ 20} Julia Lloyd, M.D., testified that she was the attending physician in the emergency room at Children's on the night M.P. was brought in. She testified that prior to conducting a physical examination of M.P., she was informed that M.P. "disclosed that the alleged perpetrator had requested oral sex from [her] patient and * * * had put his finger inside her vagina." (July 20, 2015 Tr. at 119.) According to Dr. Lloyd, M.P.'s medical examination was essentially normal, but she cautioned that a normal examination result does not rule out sexual abuse.

         2. Victim K.M.

         {¶ 21} K.M.'s mother, M.M., testified J.B. was K.M.'s former babysitter. According to M.M., sometime in April 2014, K.M. "seemed apprehensive and scared" at dinner. (July 22, 2015 Tr. at 12.) She stated K.M. was just three years old at the time, a few weeks short of his fourth birthday. Over S.M.B.'s objection, M.M. testified that K.M. said "[S.M.B.] played with my penis and I didn't like it, and it hurt." (July 22, 2015 Tr. at 13.) M.M. recalled that her fiancé, her daughter, and one other person were there when K.M. made the statement. When asked about her reaction to K.M.'s statement, M.M. testified: "I was in utter shock, as was everyone at the table and I tried - I asked him what happened, and he said the exact same thing and I said, 'Are you sure?' and he said, 'Yes.'" (July 22, 2015 Tr. at 14.) M.M. testified that K.M. was taught to "use anatomically correct names" for body parts, and when K.M. refers to his penis he is referring to "[h]is genitals." (July 22, 2015 Tr. at 14.)

         {¶ 22} M.M. stated that the next morning she told J.B. about K.M.'s disclosure and that J.B. told her "[i]t's just not possible. It couldn't happen. It didn't happen." (July 22, 2015 Tr. at 16.) C.P. stated that she left K.M. in the care of J.B. for approximately three more weeks, but when she learned of the other allegations of sexual abuse, she took K.M. to Children's to be examined.

         {¶ 23} Kerri Wilkinson works at Children's as a forensic interviewer. When asked what she would expect a child of K.M.'s age to be able to relate, she answered: "I expect a three-year-old child to be able to tell a who, a what. The concept of time for a three or four-year-old; you wouldn't expect them to be able to tell you, you know, before or after or when something happened. They're just not developmentally able to do that. You may be able to get a where something happened but you can usually get a who and a what happened." (July 22, 2015 Tr. at 81.)

         {¶ 24} A videotape of Wilkinson's interview with K.M. was played for the magistrate over S.M.B.'s objection. During the interview, K.M. told Wilkinson that he was three, he knew he was a boy, he lived with his mom, his sister F.M., and K., who he referred to as his daddy. Wilkinson showed K.M. an anatomical drawing and K.M. identified the penis as a private part. When Wilkinson asked K.M. if someone ever touched his private parts, he said that his mom and his daddy touch it when he is in the bath, and his sister "tickles it when they're in the bath together." (July 22, 2015 Tr. at 78.) When Wilkinson asked K.M. if anyone else had touched his penis, he answered "[n]o." (July 22, 2015 Tr. at 106.)

         {¶ 25} The interview then proceeded as follows:

MS. WILKINSON: * * * I heard something about [S.M.B.]? I heard something happened with [S.M.B.].
[KM.]: He played with my penis. [S.M.B.] did.
MS. WILKINSON: Oh. He played with your penis? Okay, tell me all about [S.M.B.] playing with your penis.
[KM.]: He got a tissue and-he got a tissue and he wiped it.
MS. WILKINSON: He got a tissue and wiped it?
[KM.]: Uh-huh (affirmative response).
MS. WILKINSON: Okay. And then what happened after he got a tissue and wiped it?
[KM.]: He (inaudible) and then he got out of [S.M.B.]'s room.
MS. WILKINSON: Okay.
[KM.]: And then he - he leaved (sic).

(July 22, 2015 Tr. at 107-08.)

         {¶ 26} KM. stated that the events he described happened in S.M.B.'s room where he had been sleeping and that J.B. and another boy J.B. was caring for were in the living room. KM. told Wilkinson "[S.M.B.] taked (sic) off my pants and-and my underwear. * * * Then he shutted (sic) the door and he went (inaudible) * * * and then I got up." (July 22, 2015 Tr. at 111.) When Wilkinson asked KM. how it felt when S.M.B. was touching him, KM. responded that "[i]t tickled my penis." (July 22, 2015 Tr. at 112.)

         {¶ 27} On cross-examination, Wilkinson acknowledged that in conducting forensic interviews of suspected child sexual abuse victims she is expected to conform to protocols issued by the Center for Family Safety and the Healing Child Assessment Center ("CAC"), with the goal of minimizing interviewer influence. Wilkinson acknowledged the protocols require the interviewer to remain neutral and to focus on factfinding, without suggesting answers.

         3. S.M.B.'s Witnesses

         {¶ 28} S.M.B. offered his own testimony in an effort to establish he was not at home with the children for a length of time sufficient to commit the crimes in question. S.M.B. testified that on or about the time period of the alleged sexual abuse, he was a freshman in high school and living with his mother, J.B., his father, B.B., and his two dogs. He testified prior to his freshman year, he was involved in the high school band camp and the band camp started around 8:30 a.m. and did not end until after 5:00 p.m. He stated that he woke at 6:00 a.m. on a typical school day and got a ride to school either from a friend's father or one of his grandparents at around 7:00 a.m. He testified he never missed a day of school that year due to illness and that on scheduled days where school was not in session, he was either at his grandparents' home or his aunt's. According to S.M.B., though the school day ended at 2:30, he attended after school band activities each day, and he performed with the band on Friday evenings during football games. He stated that after football season ended, he became involved in the bowling team, Monday through Friday. During bowling season, S.M.B. would get a ride home from school at 2:30 p.m., grab his bowling equipment, and leave for the bowling alley. In addition to band and bowling, S.M.B. was also involved in Taekwondo, which he participated in Monday, Wednesday, and Friday.

         {¶ 29} S.M.B., however, acknowledged that the children his mother was watching were at the house when he got home from school on days when he did not have an activity immediately after the school day. He stated the children were either sleeping or playing in the living room. He stated if a child was sleeping in his room, he was not allowed in. S.M.B. testified he had no responsibilities related to his mother's daycare operation, he never watched the children for his mother, and never played with any of the children. He stated there was never a time when his mother left him in the house alone with the children.

         {¶ 30} S.M.B. denied the allegations made by M.P. He did recall nudging M.P. out of the way with his foot on one occasion when she would not move from the entry to the hallway. S.M.B. also denied the allegations made by K.M. in the videotaped interview with Wilkinson, and he denied ever being alone with K.M. He did acknowledge tripping over K.M. one day when K.M. was sleeping on the floor and that his foot struck the lower half of K.M.'s body. According to S.M.B., the incident with K.M. occurred just a few weeks before the allegations of sexual abuse were made against him.

         {¶ 31} S.M.B. also called J.B. in his defense. He offered the testimony of his mother and other witnesses to establish that he would not have been able to commit the acts of sexual abuse in question without being seen, given his mother's rules regarding the children and the relatively small quarters in which the children were tended. She corroborated S.M.B.'s claims about the incidents where he nudged M.P. out of his way and when he tripped over K.M.

         {¶ 32} J.B. testified that she runs a daycare center out of her home. According to J.B., her home is very small, and she described the layout of the home with the aid of a floor plan. J.B. testified there were as many as seven small children, including infants, under her care in March and April 2014. J.B. testified the children are with her in the home roughly ten hours per day, five days per week. J.B. stated she has a number of rules surrounding the children's care that are never to be broken. For example, she does not allow the children to go into the hallway or the bedrooms unless she places them there. According to J.B., when any child is sleeping in S.M.B.'s room, S.M.B. is not allowed in. On cross-examination, however, J.B. admitted that the inside of S.M.B.'s bedroom cannot be viewed either from the living room, kitchen, or bathroom.

         4. Manifest Weight Analysis

         {¶ 33} S.M.B. concedes the evidence presented by the state, if believed, is sufficient to support the juvenile court's determination that S.M.B. is delinquent for committing rape, in violation of R.C. 2907.02(A)(1)(b), and gross sexual imposition, in violation of R.C. 2907.05(A)(4). S.M.B. argues, however, that the absence of any corroborating physical evidence of sexual abuse, inconsistencies in the victims' accounts of the alleged sexual abuse, and the testimony of S.M.B. and J.B. required acquittal of the charges. We disagree.

         {¶ 34} In our view, the absence of corroborating physical evidence to support M.P.'s claim of sexual abuse is of little consequence in this case given the type of abuse alleged and the time between occurrence and M.P.'s physical examination at Children's.[2] Under the circumstances, it would have been surprising if any physical evidence were found on M.P.'s person or clothing. Moreover, Dr. Lloyd testified a normal medical examination does not rule out sexual abuse.

         {¶ 35} Similarly, the alleged inconsistencies in M.P.'s accounts of the incidents do not render the finding of delinquency against the manifest weight of the evidence. S.M.B. contends that M.P. was not to be believed because she gave additional details about the sexual abuse to hospital personnel that she had not given to her mother. For example, M.P. told Soltes that sexual abuse occurred in the hallway and that other children could have seen it, but she did not give those details to her mother. She also told Soltes about the oral sex but did not mention this to her mother.

         {¶ 36} In our view, the additional details M.P. provided to Soltes are not necessarily inconsistent with the story she told her mother as one would expect a trained forensic examiner, such as Soltes, to uncover greater detail from a victim of sexual abuse than a lay person. Nor do we consider it inconsistent for M.P. to tell Soltes that S.M.B. "made me suck his thingy * * * one time" but later told Soltes the sexual abuse by S.M.B. happened "a lot," because M.P. was initially speaking about a particular sexual act but was later speaking about multiple instances of sexual conduct. (July 16, 2015 Tr. at 19; July 17, 2015 Tr. at 89.) Moreover, the testimony M.P. gave in the courtroom was generally consistent with what she told Soltes at Children's.

         {¶ 37} Though S.M.B.'s trial counsel was able to elicit testimony on cross-examination of M.P. that showed M.P. was confused about the time of day the abuse occurred and the weather outside on the day the abuse occurred, our review of the trial transcript reveals that counsel suggested certain incorrect response to M.P. and that M.P. obliged. The juvenile court found the alleged inconsistencies in M.P.'s victim testimony were "immaterial" to the charges. (Nov. 22, 2017 Decision at 17.) The record supports the juvenile court's assessment.

         {¶ 38} To the extent S.M.B. argues the information M.P. provided to Soltes is not to be believed because Soltes breached established protocols during the interview, the juvenile court noted the relevant protocols permit "modification of the process in order to best suit the needs of both the family and child" and are "designed to be flexible so that employees can adjust to the needs of each individual situation." (Nov. 22, 2017 Decision at 7.) The juvenile court reviewed the trial transcript and the written protocols admitted into evidence. In overruling S.M.B.'s objection, the juvenile court stated: "Upon reviewing and analyzing the CAC protocol, this Court finds that there was no break in CAC Protocol as [S.M.B.] contends. The record does not support [S.M.B.'s] ancillary contention that the employees of Children's Hospital violated CAC protocol." (Nov. 22, 2017 Decision at 7.) The written protocols admitted into evidence support the juvenile court's assessment. See Def.'s Exs. 6 & 7.

         {¶ 39} With regard to the finding of delinquency for the gross sexual imposition on KM., S.M.B. contends the lack of physical evidence to support the allegations of sexual abuse undermined the delinquency determination. However, Katherine Doughty, the advanced practice nurse who examined K.M. at Children's, testified she would not have expected to find any injuries to K.M.'s person or any physical evidence of sexual abuse given the nature of the sexual conduct alleged. The magistrate found that Doughty qualified as an expert in child sexual abuse examination. After observing K.M. while he was being interviewed by Wilkinson, speaking with K.M. and his mother, and conducting a physical examination of K.M., Doughty formed the opinion, to a reasonable degree of certainty, that K.M. had been the victim of inappropriate sexual conduct.

         {¶ 40} S.M.B. also argues that Wilkinson violated established protocol when she used leading questions in asking K.M. about the sexual abuse by S.M.B. and that her breach of protocol rendered K.M.'s disclosure of sexual abuse unworthy of belief. The videotaped interview was played to the magistrate during Wilkinson's testimony, and the relevant protocols were admitted into evidence. The juvenile court reviewed the videotape, the trial transcript, and the written protocols admitted into evidence. In overruling S.M.B.'s objection, the juvenile court concluded Wilkinson's use of certain leading question during her interview with K.M. was "in line with CAC guidelines" and "commonly used when dealing with young children involved in traumatic experiences."[3] (Nov. 22, 2017 Decision at 10.)

         {¶ 41} Our review of the relevant evidence reveals that Wilkinson introduced the topic of possible contact with S.M.B. by asking: "I heard something happened with [S.M.B.]." (July 22, 2015 Tr. at 158.) However, in our view, Wilkinson's questioning of K.M. merely invited K.M. to reveal anything that may have happened with S.M.B. but did not suggest a particular response. See State v. Moore, 2d Dist. No. 2018-CA-14, 2019-Ohio-1671, ¶ 52 ("We have recognized that a question calling for a 'yes' or 'no' answer but not suggesting the answer is not leading."). The videotape reveals that a majority of the questions put to K.M. were not leading. In many instances, Wilkinson simply repeated the information K.M. had provided in a previous response and asked K.M. to explain. Because the majority of Wilkinson's questions of K.M. were not leading, the record supports the juvenile court's determination that Wilkinson did not violate established protocol during the interview with K.M. and that K.M.'s statement had a sufficient indicia of reliability to be considered in determining whether S.M.B. was delinquent for committing gross sexual imposition.

         {¶ 42} S.M.B. next contends the videotaped interview reveals that K.M. gave inconsistent and contradictory responses when asked if anyone had touched his penis. We agree that K.M. initially answered "no" when asked if anyone other than his parents and his sister touched his penis. However, when speaking about S.M.B., KM. gave a somewhat detailed description of the sexual contact. In our view, resolving the inconsistency in K.M.'s statements to Wilkinson was within the purview of the trier of fact. On this record, we cannot say the magistrate and the juvenile court erred in resolving the conflict.

         {¶ 43} Finally, S.M.B. argues that in finding S.M.B. delinquent for committing the rape of victim M.P. and committing gross sexual imposition on victim K.M., the juvenile court erred by not properly crediting the testimony of witnesses presented by the defense. We disagree.

         {¶ 44} The determination of weight and credibility of the evidence is for the trier of fact. In re A.W., 2009-Ohio-5093, at ¶ 4, quoting In re M.T., 2006-Ohio-3613, at ¶ 8-9. The rationale is that the trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimony is credible. In re A.W. at ¶ 4. The trier of fact is free to believe or disbelieve all or any of the testimony. Id. The magistrate believed the testimony of the state's witness and assigned greater weight to their testimony. Neither the magistrate nor the juvenile court found the testimony of S.M.B. and his witnesses to be persuasive.

         {¶ 45} Our review of the record shows that even though the testimony of S.M.B. and his witnesses shows that S.M.B. did not have unfettered access to the victims, the testimony does not support a finding that S.M.B. did not have sufficient access to the victims to commit the crimes in question. S.M.B. admitted he did have contact with both victims during the relevant time period, even though he claims the contact was innocent. Similarly, while the relatively small size of J.B.'s home shows that it would be difficult for the sexual abuse of the two victims to go undetected, the magistrate and the juvenile court were not persuaded by J.B.'s claim that the abuse did not happen because she did not witness it. On this record, we cannot say the juvenile court lost its way in resolving the conflicts in the evidence and reaching the conclusion that S.M.B. was delinquent for committing the offense of rape against victim M.P. and gross sexual imposition against victim K.M.

         {¶ 46} Accordingly, we hold the juvenile court judgment declaring S.M.B. delinquent for committing the offenses of rape and gross sexual imposition is not against the manifest weight of the evidence. S.M.B.'s fifth assignment of error is overruled.

         B. S.M.B.'s First ...


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