COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66956 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JOSEPH L. HOGAN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 8, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-298,976-B JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RICHARD A. BELL, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN P. PARKER Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44113 DONALD C. NUGENT, J.: The defendant-appellant, Joseph Hogan (hereinafter "appellant"), appeals from his conviction for two counts of felonious sexual penetration in violation of R.C. 2907.12, two counts of gross sexual imposition in violation of R.C. 2907.05, and 1 one count of rape in violation of R.C. 2907.02. I. On July 20, 1993, appellant was issued a six-count indictment stemming from offenses occurring between the dates of June 1, 1990 through May 22, 1991. On August 3, 1993, appellant entered a plea of not guilty to all six counts of the indictment. Thereafter, on January 12, 1994, the matter proceeded to trial before a jury. The facts pertinent to the present matter can be derived from the record and the briefs of the parties presented before this court. They are as follows: 1 The trial court dismissed one count of the indictment against the appellant, Count Four, which consisted of a charge of gross sexual imposition. - 3 - A. Appellant Joseph Hogan and Carol Hopkins-Hogan are married and are the natural parents of Lisa and Renee Hogan. Lisa Hogan was born on October 28, 1986; Renee Hogan was born on February 28, 1988. Shortly after the birth of Lisa in 1986, the Department of Human Resources of the State of Ohio became involved in the Hogan family. Mt. Sinai Hospital contacted the department because it was concerned about Carol Hopkins-Hogan's mental health as well as her ability to parent. Because of this referral, the department began an open case file on the Hogan family. On November 27, 1989, Bobby, the nine-month-old son of appellant and his wife, died of sudden infant death syndrome. In line with departmental protocol, the Hogans' other children, Lisa and Renee, were removed from the Hogan home and placed with their paternal aunt, Regina Thomas. On February 21, 1990, the Department of Human Services petitioned for custody of the Hogan children. After concluding that the death of Bobby Hogan was an accident, the department's petition was denied by the juvenile court. At this time, the girls were returned to the home of appellant and his wife. During the early months of 1991, the Department of Human Services received two referrals from East Cleveland Head Start. These referrals involved allegations of physical abuse of Lisa Hogan. Specifically, Lisa had arrived at class with physical signs of abuse such as bruises and cuts. After a number of fruitless - 4 - attempts to make contact with the appellant and his wife, the Department of Human Services motioned for, and was granted, "emergency custody" of Lisa and Renee Hogan on May 22, 1991. At this time, the girls were again placed with their aunt, Regina Thomas. Shortly thereafter, Ms. Thomas requested that the department remove the children from her home. On May 28, 1991, the girls were placed in the first of several foster homes. The children were placed in the foster care of Kevin and Lori Taub. It is the events that occurred prior to Lisa and Renee being removed from the home of appellant and Ms. Hopkins-Hogan (between June 1, 1990 and May 22, 1991) that form the basis of the charges against appellant. B. For its case, the State of Ohio presented the testimony of seven witnesses; appellant's daughters Lisa and Renee Hopkins; the girls' foster parent Lori Taub; social workers Kris Lennon, Christine Rakowsky and Paul Brown; and Dr. Amy Richardson. These witnesses testified, in pertinent part, as follows: LISA HOGAN: Seven-year-old Lisa Hogan, after being found competent to testify by the trial court, stated that appellant was her father. Lisa stated that she and Renee used to sleep on a mattress in the living room when they lived with appellant and Ms. Hopkins-Hogan. - 5 - Lisa stated she remembered that "Poppa and Carol" slept on a pull- out couch in the same room with Lisa and Renee. Lisa recalled a time when Renee and Ms. Hopkins-Hogan were shopping. Lisa stated that appellant had his clothes off and "put his private on [her] leg." In addition, Lisa stated that appellant had put a bar of soap inside her vagina and that it was a "bad touch" and that "it hurt." RENEE HOGAN: Five-year-old Renee Hogan, after being determined competent to testify, stated that she remembered living with appellant and Ms. Hopkins-Hogan along with her sister, Lisa. Renee stated that the penis area of a man was called the "tail." During direct examination, Renee was asked what happened when she "saw Poppa's tail." Renee responded, "He made me suck it." She pointed inside her mouth when asked on what part of the body he put his "tail." MRS. LORI TAUB: The next person to testify was Mrs. Lori Taub. Mrs. Taub testified that she and her husband, Kevin Taub, had been foster parents since 1988. On May 28, 1991, the Taubs received Lisa and Renee Hogan into their home. Shortly after receiving the girls, Mrs. Taub gave each child a bath. At this time, she noticed that Renee's vaginal area was very sensitive in the water. Mrs. Taub also noticed that both girls had a number of scars on their bodies. - 6 - Mrs. Taub further testified that in order to protect herself from any possible allegations of neglect, she took several pictures of 2 the girls showing their scars. After only a few days in the care of the Taubs, Renee came to Mrs. Taub and told her she was very sore and still hurting in the vaginal area. Mrs. Taub testified that she inspected the area and it was very red, swollen and enlarged. Mrs. Taub treated the area with ointment and contacted Ms. Kris Lennon, the social worker involved with the case. Mrs. Taub then took Renee to a general practitioner for treatment. Mrs. Taub stated that Lisa and Renee Hogan remained with the Taubs for a total of forty-three days. Mrs. Taub testified to the numerous behavioral problems the children exhibited while under her care. For example, on several occasions during the night, she heard the girls making strange noises in their room. When Mrs. Taub went in to check on the girls, she found them in bed together fondling each other. In addition, Mrs. Taub testified that on one occasion, she found feces smeared all over the girls' bodies and throughout their bedroom. When Mrs. Taub bathed the girls, she discovered that Renee had feces in her mouth. Mrs. Taub further testified that Lisa had sleep disturbances and would vomit her food and then eat it. Mrs. Taub also testified that during the girls' 2 Upon laying the proper foundation, the pictures were introduced into evidence by the State of Ohio. - 7 - stay, Renee would reach out and attempt to grab Mr. Taub's genitals. In addition, during their stay with the Taubs, Lisa and Renee made several statements to Mrs. Taub regarding activities with appellant. Mrs. Taub had anatomically-correct dolls which children would normally play with while staying at her home. While playing with these dolls, Renee pointed to the penis on the boy doll and stated that she had been forced to have oral sex "with her Poppa Joey." Lisa also referred to "Poppa Joey" and stated to the Taubs that she also had sexual activity with him. On July 10, 1991, Mrs. Taub requested that the children be removed from their home since she and her husband did not have the necessary training or experience to deal with the girls' behavioral problems. Thereafter, the children were removed from the Taub home and placed with the Bellfaire Foster Care Network. Ms. Kris Lennon was the case worker assigned to Lisa and Renee by the Department of Human Services. As a result of Mrs. Taub's concerns, Ms. Lennon referred Lisa and Renee for an interview with sexual abuse worker Paul Brown to determine the probability of sexual abuse. MR. PAUL BROWN: Mr. Brown testified that he is a sex abuse social worker at the Cuyahoga County Department of Children and Family Services. As a part of his duties, he regularly conducts interviews of children - 8 - who have been referred for alleged sexual abuse, with the goal being assessment of risk to the child, identification of the perpetrator, and treatment or therapy. Mr. Brown testified that he conducted an interview with Renee Hogan. Throughout the course of his interview with Renee, Mr. Brown used anatomically-correct drawings. During this interview, she told him that "Daddy Hogan" touched her with a pencil in the vagina. When Mr. Brown asked Renee if she had ever touched an adult's private parts, Renee told Mr. Brown that she had licked "Daddy Hogan." When Mr. Brown asked if anyone else had touched her "pee-pee," Renee responded, "You did." When he asked Renee to show him where she had licked "Daddy Hogan," Renee made marks on the genital area of the drawing of the adult male. In addition, Mr. Brown testified that throughout the interview, Renee kept wanting to touch his genitals. After finishing his interview of Renee, Mr. Brown then conducted a separate interview with Lisa. During this interview, Lisa seemed fascinated by the male doll's penis; however, Mr. Brown testified that Lisa denied ever being touched sexually. Lisa told Mr. Brown that "Daddy Hogan goes to the bathroom" and imitated the male doll urinating. After these initial interviews, Mr. Brown determined that there was "possible sexual abuse" and recommended that the children become involved in therapy. Following Mr. Brown's interviews, the children remained in the care of the Bellfaire Foster Care Network. During this time, the appellant and his wife were allowed limited visitation rights with - 9 - the children. The visitations were conducted under the supervision of Ms. Kris Lennon. MS. KRIS LENNON: Ms. Lennon testified that she was a social worker with the Cuyahoga County Department of Children and Family Services. Ms. Lennon stated that she had become the case worker on the Hogan family file in December, 1990. She testified that after the Department took custody of the girls in June, 1991, it did not receive a request for visitation from appellant or his wife until October, 1991. However, in October, 1991, appellant and Ms. Hopkins-Hogan began to have supervised visitations with Lisa and Renee. During one of these visitations, appellant was told that Renee had named him as the perpetrator. Appellant denied that he was the perpetrator. Ms. Lennon stated that appellant would spontaneously show up at her office to discuss his children. During one visit, appellant read a "confession letter" to Ms. Lennon that he had written to the Lord. Although the letter itself was not introduced into evidence, Ms. Lennon testified that within the letter, Mr. Hogan confessed that: *** he used to be a womanizer, that he used crack cocaine, that he neglected his family. And in this letter the Lord was responding back to him. * * * - 10 - [B]asically he was writing about these various things that he had done that he felt were bad. And that in this letter the Lord's response was always that Mr. Hogan was forgiven. And he stated that in this letter to Lord, Lord I molested my niece. And in the letter the Lord responded but son that's okay, you don't do that anymore. * * * *** He would admit to basically everything except doing anything sexually to Lisa and Renee. Ms. Lennon further testified that during the year 1992, she received two more referrals from the Bellfaire Foster Care Network regarding Lisa and Renee "sexually acting out" while in foster care. As a result of these referrals, Ms. Lennon requested a second sex abuse assist for the girls. The girls were referred to Ms. Christine Rakowsky, a sex abuse social worker at the Cuyahoga County Department of Children and Family Services. MS. CHRISTINE RAKOWSKY: Ms. Rakowsky testified that she interviewed both of the girls on separate occasions. On February 5, 1993, Ms. Rakowsky interviewed Lisa Hogan. After Lisa told her that "Poppa Hogan" touched her, Ms. Rakowsky asked Lisa to show her how the touching occurred by using anatomically-correct dolls. When Lisa took the pants off the male doll, she made strange faces and noises and then placed the penis of the doll on the thigh of the female doll. In addition, Lisa told Ms. Rakowsky that appellant had put his finger and soap into her privates. Ms. Rakowsky testified that Lisa told - 11 - her this was done many times "two summers ago." Lisa also told Ms. Rakowsky that these acts were done on the bed and on the mats and that appellant had done the same thing to Renee. On February 9, 1993, Ms. Rakowsky interviewed Renee Hogan. Ms. Rakowsky testified that Renee was very hyperactive and anxious throughout the interview. Renee described good touches as touches to her buttocks and bad touches as touches to her vaginal area. During this interview, Renee denied that anybody touched her; however, Ms. Rakowsky testified that Renee stated that Lisa and Renee had touched each other. Ms. Rakowsky stated that she ended the interview after only fifteen minutes because Renee refused to communicate. In early April, 1993, Ms. Rakowsky again interviewed Renee Hogan. During this interview, Renee was again very hyperactive and anxious; however, Ms. Rakowsky testified that when she asked Renee why she was there, Renee responded that appellant "put his tail in my mouth and he peed in it." After this, Renee would not sit still, and Ms. Rakowsky ended the interview. After the second interview with Renee Hogan, Ms. Rakowsky testified that she met with appellant regarding getting his daughters back. During this meeting, Ms. Rakowsky testified that appellant stated the following: *** that in 1991 he used cocaine and that he had a girl friend supply him of the drugs and that he almost lost his job. However, due to religion he changed and he said something like, he gave his life to Christ. And he showed me the bible and that he stopped using drugs, - 12 - stopped smoking, stopped seeing other women and that he was a changed man. * * * [A]nd then he wanted to know if his children had said anything at all about the perpetrator because he said he believed the children were abused at the foster home because he found out from Kris Lennon that the children had been doing these different things, strange behavior and he was feeling that this is where this had happened. And he kept saying, asking if the children have named the perpetrator. When I said that Lisa had mentioned him as--he was asking the name she used. And I said, she used the name of Poppa Hogan, then he became very distraught and very upset, started crying, started hitting his head against the wall and saying not my Lisa, no, God, please not my Lisa or something to that effect. After this meeting with Ms. Rakowsky, appellant requested to see her supervisor. When Ms. Rakowsky returned with her supervisor, appellant was calm and composed. DR. AMY RICHARDSON: The final person to testify on behalf of the state was Dr. Amy Richardson. Dr. Richardson is the Director of the Child Protection Program at Rainbow Babies and Children's Hospital. Dr. Richardson testified that she has personally interviewed and examined over seven hundred children in relation to alleged child sexual abuse. She testified that her examinations entail a general physical examination of the heart, lungs, ears and eyes and proceed to a detailed examination of the genital and anal regions. On October 5, 1992, Dr. Richardson examined Renee and Lisa Hogan. During the - 13 - course of her examination, Renee told Dr. Richardson that Renee and her sister had touched each other's private parts and that "Carol and Poppa Joe" had witnessed it. Dr. Richardson testified after completing her physical examination of Renee she found Renee's hymen was "markedly irregular" and her vaginal opening enlarged and "attenuated" (thinned out). Renee's vaginal opening was ten to twelve millimeters; the average for a girl her age is about three to four millimeters. Dr. Richardson next examined Lisa Hogan. She testified that the physical exam showed Lisa's vaginal opening somewhat enlarged, and the vaginal interior showed irritation. On cross-examination, Dr. Richardson agreed that the irritation was "fresh," meaning it recently occurred; however, Dr. Richardson stated that the irritation did not specifically influence her findings. Dr. Richardson testified that during the course of her interviews with Lisa and Renee, neither girl specifically told her that appellant sexually abused her. Dr. Richardson further testified that both girls showed signs of behavioral indicators common in children who are sexually abused. Dr. Richardson stated that these sexualized behaviors in children the girls' ages are learned responses. Finally, Dr. Richardson gave her opinion that both of the girls were victims of sexual abuse between June 1, 1990 and May 22, 1991. After presentation of the state's case, the appellant chose not to present any witnesses on his behalf and rested his case. On - 14 - January 25, 1994, the jury returned a verdict of guilty against appellant for two counts of felonious sexual penetration, two counts of gross sexual imposition, and one count of rape. Thereafter, on January 27, 1994, the trial court sentenced the appellant to consecutive life sentences for the counts of rape and felonious sexual penetration; all other counts were to run concurrently. A timely notice of appeal was filed with this court. II. Appellant has filed a pro se brief in addition to the brief prepared and submitted by his appointed counsel. He submits a total of eight assignments of error for our review: ASSIGNMENTS OF ERROR OF COUNSEL I. THE TRIAL COURT IMPROPERLY ALLOWED HEARSAY STATEMENTS MADE BY THE APPELLANT, AND OTHERS, TO A SOCIAL WORKER IN VIOLATION OF THE RULES OF EVIDENCE. II. STATEMENTS MADE TO SOCIAL WORKERS BY AN ALLEGED CHILD-VICTIM AND WHO TESTIFIES AT TRIAL ARE HEARSAY AND NOT ADMISSIBLE. III. THE TRIAL COURT ALLOWED IMPERMISSIBLE HEARSAY FROM THE FOSTER PARENT IN WHICH SHE RECOUNTED THE CHILD VICTIM'S ALLEGATIONS AS TOLD TO THE FOSTER PARENT. IV. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTIONS. V. THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. ASSIGNMENTS OF ERROR OF PRO SE APPELLANT I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS RIGHTS - 15 - UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I, 10 OF THE OHIO CONSTITUTION. II. THE TRIAL COURT ERRED IN FAILING TO MAKE A FACTUAL DETERMINATION AS TO THE RELIABILITY AND UNDERLYING METHODOLOGY USED REGARDING EXPERT TESTIMONY THEREBY INVALIDATING SUCH AS CONTRARY TO THE RULES OF EVIDENCE, ALSO THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL. III. OTHER ERRORS APPEAR IN AND ON THE RECORD THAT WERE NOT BROUGHT BY COUNSEL, AND CANNOT BE BROUGHT BY PRO-SE APPELLANT AS THE RECORD IS NOT AVAILABLE TO SAME, YET SUCH ERRORS DO CONSTITUTE PLAIN ERROR AND/OR [CUMULATIVELY] REVERSIBLE ERROR. A. We will first address the assignments of error raised by appellant's appointed counsel. 1. Appellant, in the first assignment of error raised by appellant's appointed counsel, challenges the trial court's admittance of statements separately made by appellant to Ms. Lennon and Ms. Rakowsky as being in violation of the rules of evidence. Specifically, the appellant argues that the statements relating to his "confession letter" to the Lord should not have been admitted by the trial court. Appellant argues that the testimony of the social workers relating this "confession" was both hearsay and highly prejudicial and was not relevant or probative of any charge in the indictment. - 16 - Further, appellant argues that this testimony should not have been admitted into evidence because it allowed the state to introduce evidence of the appellant's bad character in violation of Evid.R. 404(A) and (B). In support of this argument, appellant relies upon State v. Lowe (1994), 69 Ohio St.3d 527. We find appellant's argument is without merit. Evid.R. 404(B) generally precludes evidence of previous or subsequent bad acts wholly independent of the criminal offense for which the defendant is on trial. Lowe, supra; State v. Coats (Oct. 6, 1994), Cuyahoga App. No. 65748, unreported. However, appellant's reliance on Evid.R. 404 is misplaced. The statements offered by the social workers were not offered to prove that appellant had engaged in "other acts"; rather, they were offered to prove that appellant actually made the statements. A statement is not hearsay if it is admitted to prove that the declarant made it rather than to prove the truth of its contents. State v. Williams (1988), 38 Ohio St.3d 346. Evid.R. 801(D) encompasses those statements which are not hearsay. The testimony regarding appellant's confession was non- hearsay as it was a statement of a party opponent. Evid.R. 801(D)(2) provides, in pertinent part, as follows: (D) A statement is not hearsay if: * * * - 17 - (2) The statement is offered against a party and is (a) his own statement, in either his individual or a representative capacity *** The Staff Note to Rule 801(D)(2)(a) further explains the rationale for allowing such statements into evidence. It states, in pertinent part, as follows: The statement need not be against the interest of the declarant at the time made. It is sufficient that the statement be that of a party and that it is offered by the opposing party. * * * Problems of trustworthiness are not critical in this class of admission since the opposing party controls the decision to introduce the statement and the party declarant will be in court to refute any unfavorable impact of the statement. The statements of appellant in question were offered into evidence through the testimony of the social workers. These statements were admissions made by the party opponent; i.e., appellant. Appellant had adequate opportunity to cross-examine both Ms. Lennon and Ms. Rakowsky in regard to the credibility of their testimony. In addition, appellant had the opportunity to refute the social workers' testimony. Therefore, they were properly admitted by the trial court under Evid.R. 801(D)(2)(a). Accordingly, we overrule appellant's first assignment of error in his assigned counsel's brief. 2. - 18 - Appellant, in his second assignment of error raised by appointed counsel, argues that the statements made by Lisa and Renee Hogan to their social workers were hearsay and inadmissable. Appellant contends that the statements did not properly satisfy the requirements for admissibility of excited utterances. The statements in question regard the testimony of Ms. Lennon, Ms. Rakowsky and Mr. Brown, supra. Each of these witnesses was a qualified social worker with experience in treating children who were the victims of sexual abuse. During their testimony, each of these witnesses related statements made to him or her by Lisa and Renee Hogan. The trial court admitted these statements pursuant to the hearsay exception of Evid.R. 803(4). Evid.R. 803(4) states, in pertinent part, as follows: The following are not excluded by the hearsay rule, even though the declarant is available as a witness. * * * (4) Statements made for purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the course of external source thereof insofar as reasonably pertinent to diagnosis or treatment. Appellant contends that the statements made by the girls to these social workers were not made for the purposes of medical diagnosis; rather, appellant contends, they were made in order to ascertain the identity of the person who was abusing the girls. In addition, appellant contends the trial court should not have - 19 - allowed the statements of the girls because the girls had already testified. For the following reasons, we find appellant's arguments are without merit. First, this court has long recognized that statements of a child victim of sexual abuse made to a social worker who examined the child victim are admissible under Evid.R. 803(4) if they were examined for the purpose of treatment. State v. Boston (1989), 46 Ohio St.3d 108, 119; Presley v. Presley (1990), 71 Ohio App.3d 34; State v. Shephard (July 1, 1993), Cuyahoga App. No. 62984, unreported; State v. Duke (Aug. 25, 1988), Cuyahoga App. No. 52604, unreported; State v. Negolfka (Nov. 19, 1987), Cuyahoga App. No. 52905, unreported; State v. Cottrell (Feb. 19, 1987), Cuyahoga App. No. 51576, unreported. While the liberalization of Evid.R. 803(4) is well documented, we are mindful of this court's warnings in State v. Chappell (Nov. 10, 1994), Cuyahoga App. No. 66501, unreported, where we held the following: *** [o]ur previous holdings in Shepard, supra, should not be interpreted to create a per se rule that all statements made to social workers regardless of their functions qualify as an exception to the hearsay rule under Evid.R. 803(4). In the present case, the interviews conducted by the social workers resulted in Lisa and Renee being placed in foster care, as well as being referred for further physical and psychological examinations. Therefore, we find that these statements were made during examinations of the children that were conducted in order to properly diagnose and treat the children. - 20 - Second, Evid.R. 803(4) explicitly deals with statements made by a declarant for medical purposes even though the declarant is available to testify. See Evid.R. 803(4), supra. Therefore, the trial court did not err in allowing Ms. Lennon, Ms. Rakowsky and Mr. Brown to testify regarding statements that Lisa and Renee Hogan made to them during their interviews with the girls. Accordingly, we overrule appellant's second assignment of error in his assigned counsel's brief. 3. Appellant, in his third assignment of error raised by appointed counsel, argues that the trial court allowed impermissible hearsay from the children's foster parent, Mrs. Taub. Mrs. Taub testified that Renee Hogan told her that she had been forced to have oral sex with appellant and that Lisa Hogan spoke of sexual actions with appellant. The trial court admitted Mrs. Taub's testimony, over defense counsel's objection, as properly admissible as an excited utterance exception to the hearsay rule. Evid.R. 803(2). A trial court is to be given wide discretion in its decision as to whether the declarant, at the time of the statement, was still under the stress of the nervous excitement. State v. Duncan (1978), 53 Ohio St.2d 215. The Ohio Supreme Court has set forth - 21 - the rationale behind allowing the admission of excited utterances as follows: The circumstances surrounding an excited utterance - a startling event, a statement re- lating to that event, a declarant under the stress of the event - do not allow the declarant a meaningful opportunity to reflect on statements regarding the event. Without opportunity to reflect, the chance that a statement is fabricated, or distorted due to a poor memory, is greatly reduced. This is the rationale for allowing an excited utterance into evidence. State v. Wallace (1988), 37 Ohio St.3d 87, 88. Furthermore, as previously stated, this court has followed the clear judicial trend, recognized in Ohio, to liberalize the requirements for an excited utterance exception when applied to statements made by young children victimized by sexual assaults. Boston, supra; Presley, supra; State v. Wagner (1986), 30 Ohio App.3d 261; Negolfka, supra. In the present case, the testimony of Mrs. Taub related to statements made by both Lisa and Renee Hogan mere days after they were removed from the custody of appellant and his wife. In addition to the statements made by the girls, Mrs. Taub testified that she noticed numerous scars, sexualized behavior and irritation around Renee's vagina shortly after taking custody of the children. The primary focus of a reviewing court in determining whether a child's statements, verbal or nonverbal, constitute admissible hearsay under this exception is upon whether or not "the declarant is still under the stress of nervous excitement from the event." - 22 - Boston, supra; State v. Shephard (July 1, 1993), Cuyahoga App. No. 62984, unreported. At the time Lisa and Renee made the statements to Mrs. Taub, they were approximately four and one-half years old and thirty-nine months old, respectively. Mrs. Taub was the first foster parent the children were sent to after being removed from the home of appellant and Mrs. Hogan. Furthermore, the facts surrounding the children's statements show that the statements in question were all made within a few weeks of the girls being brought into the Taub home. From a thorough review of the circumstances surrounding the statements made by Lisa and Renee, we find that the trial court did not err in finding that the statements made by the girls were sufficiently spontaneous to qualify as admissible hearsay under Evid.R. 803(2). Shepard, supra; Negolfka, supra. Moreover, even assuming arguendo that some of the statements of the girls related by Mrs. Taub were not properly admitted as excited utterances under Evid.R. 803, the admission of these statements by the trial court would have been harmless error. Crim.R. 52(A). Notwithstanding the statements made by Lisa and Renee to Mrs. Taub, the remaining evidence, standing alone, constituted overwhelming proof from which the jury could find that the defendant was the perpetrator of the abuse. State v. Williams (1983), 6 Ohio St.3d 281. Therefore, in light of the overwhelming evidence of appellant's guilt, the admission of Mrs. Taub's testimony was merely cumulative and not prejudicial. State v. - 23 - Bayless (1976), 48 Ohio St.2d 73; In re Johnson (1989), 61 Ohio App.3d 544, 550. Accordingly, we overrule appellant's third assignment of error in his assigned counsel's brief. 4. Appellant, in his fourth and fifth assignments of error raised by appointed counsel, argues that the evidence is insufficient to sustain his conviction and the jury's verdict was against the manifest weight of the evidence. In reviewing both the weight and sufficiency of the evidence, the same test is applied. State v. Jenks (1991), 61 Ohio St.3d 259. A reviewing court will not reverse a conviction were there is substantial evidence upon which a court could reasonably conclude that all elements of the offense have been proven beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph two of syllabus. In addition, we note that a court of appeals may not reverse a jury verdict on weight of the evidence unless all three appellate judges concur. Ohio Constitution, Art. IV, Section 3(h)(3). In the present case, the state presented direct testimony from both of the victims naming appellant as the perpetrator of the abuse. In addition, the victims' testimony expressly stated facts that, if believed, contained all of the necessary elements to prove the offenses with which appellant was charged. Appellant argued in - 24 - the trial court, and before this court, that this testimony of the children should not be believed because the children were "coached" into naming the appellant as their attacker. In support of this argument, appellant points to the inconsistent manner in which the girls referred to appellant as "Daddy Hogan" and "Poppa Hogan." Appellant contends that this and other inconsistencies within the testimony is evidence to show that the children's testimony is the result of coaching by the social workers involved in the case. The credibility of the testimony and the weight of the evidence are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230; State v. Richey (1992), 64 Ohio St.3d 353, 363. In the present case, appellant was able to cross- examine each and every witness presented by the state. Among the state's witnesses were the three social workers responsible for the sexual abuse interviews engaged in with the girls. In fact, the record shows that appellant entered into extensive cross- examination with each of the social workers regarding the possibility of "suggestion" and "coaching" of the child abuse victims. It was within the province of the jury after consideration of all the evidence before it to determine whether the defense's theory of "coaching" should be believed. DeHass, supra. In addition to the testimonial evidence, the state presented physical evidence through the medical records of Dr. Richardson to show that the children exhibited physical signs of sexual abuse as - 25 - well as numerous behavioral indicators typical of sexual abuse. Therefore, from a thorough review of the entire record, we find that there existed ample evidence from which the jury could find the appellant guilty of all the elements of the crimes which he was charged. Accordingly, we overrule appellant's fifth and sixth assignments of error in his assigned counsel's brief. B. We will now discuss the assignments of error presented by appellant's pro se brief filed with this court. 1. Appellant, in his first pro se assignment of error, alleges that he was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Section 10, Article 1 of the Ohio Constitution. A claim of ineffective assistance of counsel involves a two- step analysis: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. - 26 - Strickland v. Washington (1984), 466 U.S. 668. The test enunciated in Strickland is essentially the same as the one adopted by the Ohio Supreme Court in State v. Hester (1976), 45 Ohio St.2d 71, 79 and State v. Lytle (1976), 48 Ohio St.2d 391, 395. Furthermore, the burden of proving one's counsel's ineffectiveness is on the defendant. State v. Smith (1985), 17 Ohio St.3d 98. In Ohio, trial counsel is strongly presumed to have rendered adequate assistance. Id. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. Lytle, supra; State v. Bradley (1989), 42 Ohio St.3d 136; State v. McNair (Sept. 22, 1994), Cuyahoga App. No. 65161, unreported. The test for prejudice requires that a reviewing court look to the totality of the circumstances and determine whether the defendant has met the burden of showing that the decision reached would likely have been different absent errors. Strickland, supra, at 695-696; McNair, supra. In the present case, appellant cites several grounds for his claim of ineffective assistance of counsel. Appellant argues that his trial counsel did not allow him to testify in his own behalf. Because of this, Mr. Hogan maintains it was impossible for him to provide the jury with "crucial evidence" necessary to prove his innocence. Initially, we note that appellant had the benefit of a - 27 - presumption of innocence. In fact, the trial court instructed the jury not to draw any inferences or discuss the fact that appellant invoked his right not to testify. In so doing, the court reminded the jury that the burden of proof is always upon the state to prove every element of the charges against the defendant. The effect of a defendant taking the stand is a matter left to the professional judgment of counsel in consultation with the accused. It is a common strategic tactic for a criminal defendant to choose to invoke his Fifth Amendment right against self- incrimination and allow the matter to be determined by the jury solely on the evidence presented by the state. In addition to Mr. Hogan being able to testify to his purported "crucial evidence," his testimony might have also led the state to the discovery of other evidence against him. Moreover, the record does not show that appellant was affirmatively denied the opportunity to be a witness in his own defense. There is no indication in the record, nor does appellant offer any suggestion in his brief, as to the "crucial evidence" that he was purportedly precluded from presenting. The choice of pursuing one defense tactic at the expense of another cannot be found to be ineffective assistance of counsel absent a showing of prejudice. See, State v. Brown (1988), 38 Ohio St.3d 305, 319. In the present case, appellant has failed to establish any prejudice from his failure to testify on his own behalf. Therefore, we find this action by trial counsel did not violate appellant's right to effective counsel. - 28 - Next, appellant argues that his trial counsel failed to find and subpoena a potential defense witness, Dr. Sheila Barnes. The decision whether or not to call a witness is within the purview of defense counsel's trial tactics. Moreover, the mere failure to subpoena witnesses for a trial is not a substantial violation of defense counsel's essential duty absent a showing of prejudice. State v. Hart (1984), 20 Ohio App.3d 310, 312. A particular decision not to investigate must be examined for reasonableness under the circumstances with strong measures of deference to counsel's judgment. Strickland, supra; State v. Williams (1991), 74 Ohio App.3d 686, 695. In the present case, nothing in the record before this court shows any information relating to Dr. Barnes. It is unclear who Dr. Barnes is, what the nature of Dr. Barnes' testimony would have been, or if her testimony would have been beneficial to appellant. Furthermore, Mr. Hogan has failed to show that he was prejudiced by his inability to call this witness on his behalf. State v. Martin (Dec. 9, 1993), Cuyahoga App. No. 64421, unreported. For these reasons, we find this action by trial counsel did not violate appellant's right to effective counsel. Mr. Hogan further argues that his trial counsel failed to object to, and preserve for review, issues relating to evidence presented by the state which pertained to charges against Mrs. Carol Hopkins-Hogan. The court dismissed the charges of child endangering brought against appellant's wife, Mrs. Hogan, at the close of the state's evidence. Mr. Hogan argues that the - 29 - photographs entered into evidence by the state (see footnote 2) and other evidence presented by the state were not pertinent to his case and should not have been allowed to be seen or heard by the jury. We disagree. Not only were the photographs and testimony in question related to the physical abuse endured by the victims, but it was also necessary and relevant evidence presented by the state in order to support the elements of the offenses with which Mr. Hogan was charged. The trial court ruled that a proper foundation was laid and admitted the photographs into evidence. The weight and reliability to be given these photographs was in the sole discretion of the jury. DeHass, supra. The evidence was properly admitted against defendant. Therefore, in that trial counsel generally had no basis for an objection, Mr. Hogan was not unduly prejudiced by the introduction of this evidence. Finally, Mr. Hogan argues that trial counsel failed to familiarize himself with defendant's case. In this argument, Mr. Hogan reasserts several of his previous arguments as well as specific acts which, he maintains, show that trial counsel was inept in his preparation of his defense. After a thorough review of the entire record, we cannot say that under all of the circumstances, Mr. Hogan was deprived of a fair trial. Mr. Hogan offers no evidence that his counsel failed to thoroughly investigate the nature of his case. Nor does Mr. Hogan present any evidence to prove that there exists a reasonable - 30 - probability that, were it not for trial counsel's purported errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136. On the contrary, our review of the record shows that appellant's trial counsel clearly acted as an effective advocate of appellant. Throughout every phase of the trial, trial counsel ensured that appellant received a fair trial. Accordingly, we overrule appellant's first assignment of error raised in his pro se brief. 2. Appellant, in his second pro se assignment of error, argues that the trial court erred in allowing Dr. Richardson to testify without first making a factual determination that she was qualified to give an expert opinion. Further, appellant argues that the fact he did not have an expert testify on his behalf precluded him from receiving a fair trial. See, Martin, unreported, supra. Initially, we note that during the trial, defendant raised no objection to the testimony of Dr. Richardson regarding either her qualifications or her diagnosis of both Lisa and Renee Hogan. Also, rulings concerning the admissibility of expert testimony are within the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. Frank v. Vulcan Materials, Inc. (1988), 55 Ohio App.3d 153, 155; Henricks v. Front Row Theater (Dec. 15, 1994), Cuyahoga App. No. 66710, unreported. - 31 - Appellant contends that Dr. Richardson's testimony should not have been admitted because it was "patently unreliable in its content." The manner in which a trial court can allow a witness to offer an expert opinion is controlled by Evid.R. 703. In the present case, Dr. Richardson testified regarding her physical examinations of the girls as well as her opinion of the reason for the girls' sexualized behavior. Dr. Richardson opined that the girls' behavioral indicators caused her to conclude that they were the victims of sexual abuse. Dr. Richardson based her opinion not only upon her own extensive experience but also upon statistical data. Evidence relating to behavioral indicators of sexual abuse has commonly and historically been found to be relevant and admissible at trial. State v. Bidinost (1994), 71 Ohio St.3d 449; State v. Hendrix (Aug. 26, 1993), Cuyahoga App. No 63566, unreported. Furthermore, where an expert bases her opinion, in whole or in part, on facts or data perceived by her, the requirements of Evid.R. 703 are satisfied. State v. Solomon (1991), 59 Ohio St.3d 124. In the present case, Dr. Richardson testified that she personally conducted the examinations on both Lisa and Renee. In addition, Dr. Richardson presented the court with a lengthy list of qualifications to support her ability to testify as an expert on the subject of child sexual abuse. Therefore, we find that the trial court did not err in allowing Dr. Richardson to testify regarding her findings. - 32 - Appellant next argues that as an indigent defendant, he should have been afforded the opportunity to refute the opinions of Dr. Richardson through the use of his own expert witness. Initially, we note that appellant failed to request such an expert witness at any point during the trial. Moreover, appellant has failed to provide any evidence in regard to the substance of this expert's testimony; nor has appellant provided evidence of the necessity for said expert. The right of an indigent defendant to government- paid experts does not authorize fishing expeditions. State v. McLaughlin (1988), 55 Ohio App.3d 141, 144. Rather, appellant has the burden to affirmatively establish a substantial prejudicial effect on his defense resulting from the failure to call such witness. See, State v. Smith (1981), 3 Ohio App.3d 115; Martin, unreported, supra. There is nothing in the record to show such a prejudicial effect. Accordingly, we overrule appellant's second assignment of error raised in his pro se brief. 3. Appellant, in his third pro se assignment of error, argues that other errors appear in the record and that such errors amount to plain error. Appellant contends that such errors include the trial court's actions in the pre-trial competency proceedings regarding Lisa and Renee Hogan. In addition, appellant argues that the trial court erred when it failed to make findings of fact - 33 - required by Evid.R. 807. For the reasons that follow, we find that appellant's arguments are without merit. First, we note that determination of the competency of a witness is within the sole discretion of the trial court. State v. Frazier (1991), 61 Ohio St.3d 247, 251; State v. Lee (1983), 9 Ohio App.3d 382. In the present case, the trial court held competency hearings for both of the children prior to allowing them to testify in open court. During these hearings, the trial court asked specific questions of each child regarding their names, address, age and ability to discern right from wrong. Trial counsel for both appellant and appellee were invited to ask any questions during these hearings. After consideration of the testimony of the child witnesses, the trial court determined that they were competent to testify. There is no indication in the record that trial counsel objected to this finding. Absent a showing of an abuse of discretion, a reviewing court will not disturb the trial court's ruling. Lee, supra; State v. Workman (1984), 14 Ohio App.3d 385. From the record before this court, we find that the trial court conducted an appropriate voir dire of the child witnesses in the present case. Second, appellant contends that the trial court should have conducted the children's testimony pursuant to Evid.R. 807. Evid.R. 807 pertains to the statements made by children in abuse cases where the child's testimony is not reasonably obtainable. In the present case, the statements of the children were admitted by - 34 - the trial court under Evid.R. 803. The record shows the state clearly stated this method of presentation before the trial court. Therefore, appellant's contention that the trial court erred when it failed to make a finding of fact pursuant to Evid.R. 807 is misplaced. Lastly, as previously discussed in relation to appellant's claim of ineffective assistance of counsel set forth in his first pro se assignment of error, we find that there exists no evidence of plain error. Plain error does not exist unless, but for the error, the outcome at trial would clearly have been different. State v. Waddy (1992), 63 Ohio St.3d 424, 436; State v. Watson (1991), 61 Ohio St.3d 1, 6; State v. Jells (1990), 53 Ohio St.3d 22. After a thorough review of the entire record, we find no such error. Accordingly, we overrule appellant's third assignment of error in his pro se brief. - 35 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, J. TERRENCE O'DONNELL, J. CONCUR PRESIDING JUDGE DONALD C. NUGENT N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .