Supreme Court of Ohio Clerk of Court - Filed May 04, Case No NO IN THE SUPREME COURT OF OHIO STATE OF OHIO

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1 Supreme Court of Ohio Clerk of Court - Filed May 04, Case No NO IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee vs. Heinz Eisermann Defendant-Appellant MEMORANDUM IN OPPOSITION TO JURISDICTION Counsel for Plaintiff-Appellee TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR BRETT HAMMOND ( ) Assistant Prosecuting Attorney The Justice Center, 8 TH Floor 1200 Ontario Street Cleveland, Ohio (216) Counsel for Defendant-Appellant Joseph Patituce Megan Patituce Catherine Meehan Lorain Rd., Suite 708 North Olmsted, Ohio 44070

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS APPEAL DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR ISSUE OF GREAT PUBLIC INTEREST...1 STATEMENT OF THE CASE AND FACTS...1 LAW AND ARGUMENT...3 APPELLANT S FIRST PROPOSITION OF LAW: An expert may not testify as to the expert s opinion of the veracity of the statements of a child declarant APPELLANT S SECOND PROPOSITION OF LAW: The prosecutor may not argue that a defendant needs to prove anything in order to be found guilty. APPELLANT S THIRD PROPOSITION OF LAW: Prejudicial victim impact is not admissible. APPELLANT S FOURTH PROPOSITION OF LAW: The trial court should have allowed Appellant to psychologically evaluate the alleged victim. APPELLANT S FIFTH AND NINTH PROPOSITIONS OF LAW: Appellant s Motion for Judgment of Acquittal pursuant to Crim.R. 29 should have been granted. APPELLANT S SIXTH PROPOSITION OF LAW: The trial court provided improper jury instructions APPELLANT S SEVENTH PROPOSITION OF LAW: allowed to present a defense. Appellant was not APPELLANT S EIGHTH PROPOSITION OF LAW: The trial court improperly imposed maximum, consecutive sentences. APPELLANT S TENTH PROPOSITION OF LAW: Appellant s conviction was against the manifest weight of the evidence CONCLUSION...15 CERTIFICATE OF SERVICE...16 i

3 I. EXPLANATION OF WHY THIS APPEAL DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR ISSUE OF GREAT PUBLIC INTEREST This Court should decline jurisdiction to review the issues raised by Appellant Heinz Eisermann. Appellant has raised ten propositions of law before this Court. All ten propositions were thoroughly reviewed and denied by the Eighth District Court of Appeals in State v. Eisermann, 8th Dist. Cuyahoga App. No , 2015-Ohio-591. Appellant is now attempting to re-litigate the same issues before this Court. Absent from appellant s memorandum is a discussion of why the Eighth District Court of Appeals erred. Furthermore, each of these ten issues presents legal considerations that have previously been carefully considered by this Court. As such, appellant has failed to present a substantial constitutional question or a matter of significant general interest. His claims are limited to an attempt to correct what he perceives to be numerous errors made by the trial court and the appellate court. For the reasons that follow, the Eighth District Court of Appeals properly affirmed his convictions. II. STATEMENT OF THE CASE AND FACTS This is a case where the State introduced testimony of multiple that substantially supported appellant s two convictions. The defense did not present any witnesses at trial. At the conclusion of trial, appellant was convicted of two counts of gross sexual imposition against the minor female victim, S.P.1. The mother of S.P.1 testified that she became aware that her daughter was acting out when S.P.1 began purposefully urinating and defecating in her pants. (Tr ). S.P.1 testified that around this time, appellant had babysat for her children for a couple hours each day. (Tr , 578). On June 10th or 11th, S.P.1 reached out and touched her younger sister s genitals. (Tr. 573). She told her child, Oh, don t we don t touch other people s private areas. (Tr. 580). S.P.1 1

4 responded, Well, Heinz does. (Tr. 581). S.P.1 also told her mother that appellant tickles her genitals, that his penis gets hard, and white stuff comes out of his penis. (Tr ). She also told her mother, When I lick his pee pee, it gets bigger. (Tr. 687). When S.P.1 s mother confronted appellant, he responded, Well, what d you expect when when she s dry humping me? (Tr. 587). Both S.P.1 and her mother testified at trial to appellant s sexual assault. (Tr ). In addition, Dr. Jennifer Tucker Rosenberg testified to the following: that she is a child psychiatrist at an agency that provides psychiatric treatment to families and children. (Tr. 817, 819). She began treating S.P.1 on May 16, 2013 and diagnosed her with post-traumatic stress disorder. (Tr ). When she questioned S.P.1 about appellant, S.P.1 would begin to throw things and leave the office to avoid questions. (Tr. 826). She also stated that avoidant behavior is consistent with someone who has experienced sexual trauma. (Tr. 859). She also provided testimony on the type and amount of medication she prescribed to the victim. (Tr. 827). Tina Funfgeld testified to the following: that she is a social worker at the Cuyahoga County Department of Children and Family Services. (Tr. 919). She conducted a forensic interview of S.P.1, during which she provided the victim with a drawing of the male anatomy. S.P.1 brought the drawing to her face and acted like she was kissing it. (Tr. 961). S.P.1 told Ms. Funfgeld that only one perpetrator had committed sexual abuse against her. (Tr. 963). Additionally, the State presented consistent testimony from several other witnesses. Specifically, Jacqueline Ketterer, an officer with the Olmsted Township Police Department, indicated that S.P.1 told her that she had licked and touched appellant s penis. (Tr ). Lauren McAliley, a nurse practitioner and director of the Center for Pediatric Ethics and Rainbow Babies and Children s Hospital stated that during a medical examination, S.P.1 told her that 2

5 appellant touched her pee and demonstrated what this meant by sliding her hand under her clothes. (Tr. 1283). Supplementary testimony was also provided by numerous additional witnesses. Following a jury trial, appellant was convicted of two counts of gross sexual imposition, which he now challenges on appeal. III. LAW AND ARGUMENT A. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S FIRST PROPOSITION OF LAW: An expert may not testify as to the expert s opinion of the veracity of the statements of a child declarant. Appellant s first proposition of law should be denied because no expert witness offered a direct opinion on the veracity of the child victim. Even if the identified statements were improperly admitted, they resulted in harmless error. This Court has previously reviewed the issue of whether a witness can provide testimony concerning whether the victim was sexually abused. In State v. Boston, 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989), this Court considered testimony related to allegations that a father had committed gross sexual imposition against his minor daughter. This Court held that an expert s opinion testimony on whether there was sexual abuse would aid jurors in making their decision and is, therefore, admissible pursuant to Evid.R. 702 and 704. Id. Therefore, this Court concluded that a pediatrician s testimony as to whether the victim was sexually abused was properly admissible. This Court further found that an expert s testimony identifying the alleged perpetrator, through the repeating of the victim s out-of-court statement, is admissible. Id. Based on the above, the trial court did not err in admitting Dr. Rosenburg s testimony that from the history that was provided to me, there was certainly a history of sexual abuse and trauma. Although appellant complains that such a statement should be found inadmissible, Dr. 3

6 Rosenburg s statement squarely falls within the type of statement permissible under Boston. Similarly, there was no error in the statement made by Funfgeld that [t]he findings I made were based upon the child s descriptive disclosure, and consistency between the police department, the Care Clinic and myself. (Tr. 969). As the Eighth District Court of Appeals explained, this statement by Funfgeld did not address whether S.P.1 s statements were credible, consistent, or truth, [and] thus, she did not cross the bright line of Boston and testify to S.P.1 s veracity. Id. at 60. Even if either statement was improperly admitted, such error would be harmless. To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. State v. Marinello, 8th Dist. Nos and 86113, 2006-Ohio-282, 40. Here, any error in admitting these statements would be harmless because (1) substantial evidence had already been introduced of appellant s guilt; and (2) evidence had already been introduced from which the jury could reasonably infer that the victim had provided consistent statements to multiple witnesses. As such, this Court should deny appellant s first proposition of law. B. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S SECOND PROPOSITION OF LAW: The prosecutor may not argue that a defendant needs to prove anything in order to be found guilty. Appellant argues that the assistant prosecuting attorney in this case committed multiple instances of prosecutorial misconduct. More specifically, he claims the misconduct resulted from making improper comments, mischaracterizing testimony and misstated facts; [seeking] sympathy for the alleged victim; and, perhaps most egregiously, arg[uing] that the defense needed to prove something to the jury in order for Appellant to be found not guilty. (Appellant s memorandum, 7). 4

7 Appellant s arguments concerning prosecutorial misconduct lack merit. Although the State has a limited opportunity to respond in this brief, the opinion by the Eighth District Court of Appeals is persuasive on this issue. The test for prosecutorial misconduct is whether the remarks were improper, and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Hartman, 93 Ohio St.3d 274, 295 (2001). To establish prejudice, the defendant must show that a reasonable probability exits that but for the improper remarks, the result of the proceeding would have been different. State v. Loza, 71 Ohio St.3d 61, 83 (1994). Appellant has failed to demonstrate that the remarks were improper and that those same remarks resulted in prejudice. The only specific instance of misconduct that appellant mentions on appeal before this Court is the statement: Because to return a verdict of not guilty in this case, defense counsel must convince you to believe something based on how he was questioning her. (Appellant s memorandum, 7). Appellant takes this quote out of context as the State did not imply that the defense possessed the burden of proof. Instead, this statement indicated that the defense s method of questioning the victim was improper and highlighted the weight of evidence introduced by the defense. In State v. Collins, this Court considered a similar argument raised by a defendant claiming prosecutorial misconduct. Collins, 89 Ohio St.3d 524 (2000). The defendant in Collins argued prosecutorial misconduct based on the following statement made by the prosecutor in closing arguments: The State does not have to prove the ability the Defendant s ability to pay. The defendant has to prove that he was unable to pay. Id. Like in this case, the defendant in Collins argued that this statement shifted the burden of proof. This Court rejected the defendant s argument and stated [i]t is long-standing precedent that the state may comment upon a defendant s failure to offer evidence in support its case * * * Such comments do not imply that the 5

8 burden of proof has shifted to the defense, nor do they necessarily constitute a penalty on the defendant s exercise of his Fifth Amendment right to remain silent * * * the prosecutor is not precluded from challenging the weight of the evidence offered in support of an exculpatory theory presented by the defense * * *. Id. at Like the statement made in Collins, the statement made by the prosecutor at closing argument herein did not shift the burden of proof and was permissible. Additionally, for reasons more fully articulated in the opinion by the Eighth District Court of Appeals, appellant s remaining complaints concerning prosecutorial misconduct lack merit. C. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S THIRD PROPOSITION OF LAW: Prejudicial victim impact is not admissible. This Court has held that statements which describe the tragic impact of a crime on a victim and his family clearly fall within the scope of permissible victim evidence. State v. Fautenberry, 72 Ohio St.3d 435, 439, 650 N.E.2d 878 (1995). Furthermore, the circumstances of the victims are relevant to the crime as a whole. The victims cannot be separated from the crime. State v. Eads, 8th Dist. Cuyahoga No , 2007-Ohio-539, 55, citing State v. Williams, 99 Ohio St.3d 439, 2003 Ohio 4164, 43, 793 N.E.2d 446, quoting State v. Lorraine 66 Ohio St.3d 414, 420, 613 N.E.2d 212 (1993). Evidence about a victim is admissible when it relates directly to the circumstances of the crime and is not offered to elicit sympathy from the jury. State v. Allen, 73 Ohio St. 3d 626, 633, 653 N.E.2d 675 (1995). [E]vidence which depicts both the circumstances surrounding the commission of the [offense] and also the impact of the [offense] on the victim s family may be admissible during both the guilt and the sentencing phases. State v. Fauntenberry, 72 Ohio St.3d 435, , 1995-Ohio-209, 650 N.E.2d 878. Although appellant asks this Court to adopt an overly broad proposition of law that considers all prejudicial victim impact testimony 6

9 to be inadmissible, the well-established precedent by this Court is that victim impact testimony is admissible to provide information about the circumstances of the crime. Here, the testimony related to the impact of the victim provided relevant information about the crime as a whole. Appellant complains about the fact that (1) a witness testified that the victim was nervous to testify in front of appellant; (2) a doctor was allowed to testify to the type of medication the victim used after the crime; and (3) testimony about the amount of medication used by the victim after the crime. These pieces of testimony were relevant to prove that the victim was sexually abused. Because this evidence served to demonstrate that S.P.1 was in fact a victim of gross sexual imposition, it was properly deemed admissible. D. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S FOURTH PROPOSITION OF LAW: The trial court should have allowed Appellant to psychologically evaluate the alleged victim. Appellant argues that he was prejudiced because the trial court precluded him from having his own expert witness examine S.P.1. In short, appellant is claiming that he was unable to effectively challenge the credibility of S.P.1 and the state s experts at trial. Contrary to appellant s arguments, the trial court correctly concluded that allowing a defense expert to evaluate S.P.1 in this case would have been impermissible. Appellant s contentions present us with the question of whether expert testimony can be used to show to challenge a minor s credibility. For the reasons stated in Boston, supra, this Court has previously held that an expert may not testify as to the expert s opinion of the truth or falsity, or accuracy or inaccuracy, of the statements of a child declarant. In State v. Moreland, this Court considered the admissibility of expert testimony to challenge the credibility of a child victim. State v. Moreland, 50 Ohio St.3d 58, 62, 522 N.E.2d 894 (1990). Instead, the trier of fact, rather than an expert witness, assumes the responsibility of 7

10 assessing the credibility of a child witness. Because the trial court properly precluded appellant from introducing such testimony, appellant cannot demonstrate that he was prejudiced. Furthermore, the trial court held a competency hearing and determined that S.P.1 is able to accurately receive impressions of fact, and is able to observe things with what she testified to. (Tr. 538). S.P.1 was then subjected to a cross-examination that the Eighth Appellate District recognized as rigorous. Eisermann at 34. Appellant offers no reason for the need for an additional evaluation of S.P.1 other than to challenge the credibility of S.P.1. As such testimony would not be admissible, this Court should deny appellant s fourth assignment of error. E. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S FIFTH AND NINTH PROPOSITIONS OF LAW: Appellant s Motion for Judgment of Acquittal pursuant to Crim.R. 29 should have been granted. In appellant s fifth and ninth propositions of law, he challenges the sufficiency of the evidence of his two convictions for gross sexual imposition. In his fifth proposition of law, he contends that the trial court erred when it dismissed two counts of rape and yet allowed the jury to consider the corresponding lesser included offenses of gross sexual imposition. Appellant argues in his ninth proposition of law that the State failed to introduce sufficient evidence to support his convictions. As these two assignments of error are closely connected, the State addresses both propositions of law in tandem. The trial court did not err when it did not dismiss the lesser included offenses of gross sexual imposition. Contrary to appellant s arguments, an indictment on a greater offense necessarily includes charges against a defendant of the lesser included offenses as well. State v. Lytle (1990), 49 Ohio St.3d 154, 157, 551 N.E.2d 950. Even though an accused may be convicted of a lesser include offense, it is not necessary that each lesser included offense of a crime be set forth in the indictment. Id., citing State v. Lytle (1990), 49 Ohio St.3d 154, 157, 551 N.E.2d 950, 8

11 953, 1990 Ohio LEXIS 93. In the instant matter, appellant was convicted of gross sexual imposition which is the lesser included offense of rape. State v. Johnson (1988), 36 Ohio St.3d 224, 226, 522 N.E.2d As such, appellant s fifth assignment of error lacks merit. Furthermore, when the evidence introduced at trial is considered in a light most favorable to the State, sufficient evidence was introduced for a reasonable juror to conclude beyond a reasonable doubt that appellant was guilty of gross sexual imposition. The relevant inquiry when evaluating a sufficiency claim is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct (1979). Here, the State introduced sufficient evidence that appellant committed the crimes for which the jury ultimately convicted him. Specifically, the victim, S.P.1 testified at trial that at the age of five she entered appellant s bedroom where they would touch each other s pee pees and that when she did touch him he was hard. State v. Eisermann, 8th Dist. No Ohio- 591, 19. The victim also testified that appellant would touch her on her butt and that he placed strawberry syrup on his pee pee, which she licked off of him. Id. Contrary to appellant s claims, the evidence introduced against him was not limited to S.P.1. S.P.1 s mother testified that that her daughter had previously informed her of many of the same details of the sexual assaults that appellant committed against her. Id. at 20. S.P.1 s mother stated how her five year old daughter and appellant would touch each other, how appellant would get hard, and how white stuff would come out. Id. Furthermore, investigating Officer Ketterer testified that S.P.1 had reacted to an anatomical drawing of a male by picking up the drawing, bringing it to her face and kissing the penis of the drawing. Id. at 21. These facts considered together in a light most favorable to the 9

12 State supported appellant s convictions. As such, this Court should decline to accept appellant s fifth and ninth propositions of law. F. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S SIXTH PROPOSITION OF LAW: The trial court provided improper jury instructions. At trial, Appellant did not object to the use of the word victim in jury instructions. As such, the failure to object would require that his claim is reviewed under the plain error standard. State v. Evans, 63 Ohio St.3d 231, 240, 586 N.E.2d 1042 (1992); Crim.R. 52(B). To demonstrate plain error, appellant must demonstrate that the outcome of the proceedings would have been different. State v. Harrison, 122 Ohio St.3d 512, 2009-ohio-3547, 912 N.E.2d 1106, 61. Plain error should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice. State v. Skatzes (2004), 104 Ohio St.3d 195, 205, 819 N.E.2d 215, Ohio Here, appellant cannot demonstrate that the jury instruction resulted in the exceptional circumstance where the verdict would have been otherwise but for the error. Given the overwhelming evidence that supported appellant s convictions, appellant has failed to demonstrate how but for the use of the word victim, he would have been acquitted. As the Eighth District Court of Appeals noted, the jury acquitted appellant of the rape and kidnapping charges in spite of the use of the term victim in the indictment and jury instructions. Eisermann, supra, at 72. Furthermore, the State points out that other appellate courts have rejected similar arguments. See State v. Wright, 9th Dist. Lorain App. No. 02CA008179, 2003-Ohio-3511, 5 ( In this case, Defendant has failed to demonstrate that his substantial rights have been affected by the use of the term victim by the court, prosecutor, and defense counsel. ); see also State v. Donald, 7th Dist. Mahoning App. No. 08 MA 154, 2009-Ohio

13 G. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S SEVENTH PROPOSITION OF LAW: Appellant was not allowed to present a defense. This proposition of law also lacks merit. Appellant argues that he was prejudiced when the trial court did not allow him to cross-examine Officer Ketterer on a specific instance when she allegedly lied on an affidavit. Evid.R. 608(B) provides that [s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witnesses character for truthfulness, other than conviction of crime * * * may not be proved by extrinsic evidence. The same evidentiary rule further provides that specific instances of conduct of the witness s character may [be admitted] in the discretion of the court, if clearly probative of truthfulness or untruthfulness * * *. Here, the trial court did not abuse its discretion when it determined that this specific instance was not relevant to the case and would serve a distracting inquiry into entirely unrelated matters to this case. The admissibility of the prior incident related to Officer Ketterer falls within the discretion of the trial court because the statement was not probative in this case and would likely confuse the issues in the case. Even if this ruling by the trial court was improper, an error in excluding evidence is harmless if such evidence would not negate the overwhelming proof of defendant s guilt. State v. Gilmore (1986), 28 Ohio St.3d 190, 193, 503 N.E.2d 147; State v. Williams (1983), 6 Ohio St.3d 281, 452 N.E.2d 132. Here, appellant cannot demonstrate that the purported failure to admit this evidence would have negated testimony from all the remaining witnesses. Similarly, this Court should reject appellant s claim that he was improperly precluded from cross-examining on another potential suspect. (Tr ). Appellant sought to initiate this line of questioning solely based on the fact that a custody case was filed in December of 2011 to reduce the visitation rights of the victim s biological father. (Tr. 622). The trial court properly concluded 11

14 that absent some evidence that suggested that this information would be probative of the current case, it would preclude this line of questioning. (Tr ). In addition, the trial court noted that it was unclear when the victim s father was granted visitation rights with her father, and consequently any argument that abuse resulted during a visit at her father s house would be a fishing expedition. (Tr. 625). In short, appellant lacked clear evidence that another perpetrator committed the crime, and therefore the trial court s preclusion of an argument of another perpetrator was proper. H. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S EIGHTH PROPOSITION OF LAW: The trial court improperly imposed maximum, consecutive sentences. Appellant contends that the trial court erred when it imposed a prison sentence without first ordering a presentence investigation report ( PSI ). He cites no case law in support of his proposition of law. Contrary to appellant s claim, this Court has limited the requirement of a presentence investigation report to felony sentences where a prison term is not imposed. As this Court directly stated in Amos, [t]he plain text of Crim.R and R.C (A)(1) [] places an unavoidable duty on the trial court to obtain a presentence investigation report in every felony case in which is a prison sentence is not imposed. State v. Amos, 140 Ohio St.3d 238, 2014-Ohio- 3160, 17 N.E.3d 528, 15; see also State v. Cyrus (1992), 63 Ohio St.3d 164, 166, 586 N.E.2d 94, paragraph one of the syllabus; Crim.R Furthermore, there is no indication that the trial court erred in imposing the prison term that it ordered appellant to serve. I. THIS COURT SHOULD DECLINE JURISDICTION OVER APPELLANT S TENTH PROPOSITION OF LAW: Appellant s conviction was against the manifest weight of the evidence. Despite the overwhelming evidence introduced against appellant and the fact that he did not present any witnesses, he argues that his convictions were against the manifest weight of the 12

15 evidence. In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, this Court has previously considered the relevant standard of review for considering a manifest weight challenge: * * * sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence s effect of inducing belief. Id. at , 678 N.E.2d 541. In other words, a reviewing court asks whose evidence is more persuasive the state s or the defendant s? We went on to hold that although there may be sufficient evidence to support a judgment, it could nevertheless be against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a thirteenth juror and disagrees with the factfinder s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Id. at 25. Appellant raises a manifest weight challenge by arguing that S.P.1 testified to conflicting versions of events. In this case, the appellate court correctly noted that the trier of fact is best able to view the witnesses and observe their demeanor, gestures, and voice inflection, and use these observations in weighing the credibility of the proffered testimony. Eisermann at 28, citing Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, 24. Therefore, any appellate court reviewing the evidence under a manifest weight of the evidence challenge should defer to the credibility determinations of the trial court. Here, there is no indication that the trial court found the victim s testimony to be incredible. As the Eighth District Court of Appeals found, S.P.1 gave very consistent versions [of events] to all the adults who interviewed her concerning the reported activities. Id. Furthermore, the State presented substantial evidence in support of appellant s convictions. A reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of the offense have been proven beyond 13

16 a reasonable doubt. State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), syllabus. Here, the victim s mother testified that the victim disclosed that appellant had sexually abused the victim. (Tr. 581). Specifically, S.P.1 s mother testified that appellant touched the victim s genitals, appellant s penis got hard, and that her daughter reported white stuff coming out of appellant s penis. (Tr. 582). S.P.1 s mother further testified that the victim stated that appellant tickles her genitals. (Id.). The victim also testified that appellant put strawberry syrup on his penis and made the victim lick it off. (Tr. 749, 767). S.P.1 also stated that appellant touched her butt. (Tr. 767). The State presented additional evidence from the victim s psychiatrist, Dr. Rosenberg, who testified that she diagnosed the victim with PTSD rooted in sexual molestation. (Tr. 825). Further, Dr. Rosenberg based her diagnosis on not only the victim s statements but also her direct observations of the victim. (Tr ). Therefore, substantial evidence in the record supports appellant s convictions. 14

17 IV. CONCLUSION Appellant has failed to demonstrate that the Eighth District Court of Appeals erred when it affirmed his convictions. He argues that each of his propositions of law has merit, yet he does not explain how the Eighth District Court of Appeals erred in denying his claims. Each proposition of law has been thoroughly considered by this Court in prior cases. Precedent from this Court shows that the Eighth District correctly decided the pertinent legal issues. None of the propositions of law present new legal issues or issues that would clarify current precedent. As such, jurisdiction in this case should be declined. Respectfully submitted, Timothy McGinty Cuyahoga County Prosecutor /S/ Brett Hammond Brett Hammond ( ) Assistant Prosecuting Attorney Cuyahoga County Prosecutor s Office The Justice Center, Courts Tower 1200 Ontario St. Cleveland, Ohio (216)

18 CERTIFICATE OF SERVICE A copy of the foregoing Memorandum in Opposition was sent by regular U.S. mail or electronic service this 4 th day of May, 2015 to: Joseph Patituce Megan Patituce Catherine Meehan Lorain Rd., Suite 708 North Olmsted, Ohio /S/ Brett Hammond Brett Hammond ( ) Assistant Prosecuting Attorney 16