In the Matter of: S.M.B. (Defendant-Appellant).
from the Franklin County Court of Common Pleas (C.P.C. No.
14JU-5674), Division of Domestic Relations, Juvenile Branch
R. Venters, Public Defender, and Timothy E. Pierce, for
O'Brien, Prosecuting Attorney, and Valerie Swanson, for
Timothy E. Pierce.
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.
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.
ASSIGNMENTS OF ERROR
6} S.M.B. assigns the following as trial court
[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
[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
[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
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,
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.
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
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
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
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).
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
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?
(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
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
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,
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.
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
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.
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
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.
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. 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
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
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." (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.
S.M.B.'s First ...