COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78241 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MAURICE A. HARRIS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JUNE 7, 2001 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CR-386147 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RONNI DUCOFF (#0039884) RENEE L. SNOW (#0068769) Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Fl. Cleveland, OH 44113 For Defendant-Appellant: RUTH FISHBEIN-COHEN(#0041968) 3552 Severn Road, #613 Cleveland Heights, OH 44118 JUDGE TERRENCE O'DONNELL: Maurice Harris appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of one count of felonious assault of Diamond Karban, two counts of -2- endangering children involving Diamond and Anthony Karban, and three counts of domestic violence involving Diamond and Anthony Karban and Ebony Groomster. On appeal, Harris raises twelve assignments of error for our review. After careful review, we affirm the judgment of the court. The record reveals that Maurice Harris lived with Ebony Groomster and her three children: Anthony Pitts Karban, age five, Diamond Karban, a three-year-old Down's Syndrome child, and Deja Harris, Harris' infant child. On July 9, 1999, Groomster called EMS and reported that Diamond was having a seizure. When the paramedics arrived, they discovered bruises to Diamond's face, hands, and abdomen and noticed that Ebony's face appeared to be swollen. They then transported Groomster, Diamond, Anthony and Deja to the emergency room. There, a nurse, Elizabeth Cosgrove, found multiple scars, scratches, and bruises on Anthony, who reported that, When I am bad, Maurice gives me a whipping. He hit me yesterday. He uses his hands, and he uses his belt. He hits my mom and Diamond, too. He also told Cosgrove that his own father and his mother hit him as well, but they do not leave bruises. John Trimbath, a physician's assistant, noted various bruising on different parts of Anthony's body, and specifically observed a fresh bruise on his chest. Anthony told Trimbath that he got spanked frequently by his mother's boyfriend, Maurice, and that he had been hit with a belt across his chest the day before. Trimbath charted some of Anthony's injuries which appeared to have been caused by a belt. -3- Detective Robert Payne from the Euclid Police Department interviewed Anthony at the hospital and learned that Harris had inflicted the marks on his body. Various nurses and doctors examined three-year-old Diamond and found multiple injuries all over her body. Dr. Rhim documented twenty-one of her most serious injuries: an iron burn on her abdomen with visible steam holes, a burn in the middle of her palm, injuries to her genital area, and multiple facial injuries, none of which were consistent with accidents or self-infliction. Dr. Coverdale examined Groomster, who stated that her boyfriend struck her in the face and chest four days earlier. He diagnosed her with multiple facial cranial contusions and abrasions to the chin and upper extremities. Her X-ray also indicated a fractured nose. Groomster gave inconsistent answers about who inflicted the children's wounds, naming at one point, a fictitious Steve Wagner. Deja, Harris's only biological child among the three children, showed no signs of injury. Emergency room personnel summoned Laura Brewster, a social worker, to determine if it would be safe for the children to return home. When she asked Anthony about his bruises, he stated that he was frequently disciplined with a belt across his bare buttocks and legs by both Maurice and his mother, but only Harris left marks on his body. He also told Brewster that Maurice left the marks on Diamond's body, and that he himself sometimes beat up on Diamond. Upon completion of her interviews, Brewster authorized discharge of -4- the children to a friend of the family. The police issued an arrest warrant for Harris on July 9, 1998. When they located him a year later, on October 10, 1999, he initially denied his identity, but eventually admitted that he was Maurice Harris and the officers then arrested him. Before answering police questions, Harris signed a waiver of his Miranda rights and explained to Detective Joseph Bensi, according to Bensi's testimony at trial, that on the day when Diamond received the iron burn, he was ironing on the floor and while the iron was placed down, Diamond came into contact with the iron while trying to reach the glass of water that he was using for the iron's steam unit. As to the cause of Diamond's swollen jaws, he explained that he and Groomster would squeeze her jaws to prevent her from grinding her teeth. He also described flicking a cigarette lighter to teach Diamond about fear. Regarding Anthony, Harris stated, without being asked about a belt, that he never whipped him with a belt, but would sometimes hold up his clenched fist for discipline. During the interview, Harris never brought up the possibility that the children's father, Anthony Karban, Sr., may have caused the marks on the children. As to Groomster's injuries, he explained that when Groomster tried to prevent him from leaving her apartment, he swung his arms in an attempt to frighten her. The grand jury indicted Harris for felonious assault of Groomster, Diamond, and Anthony between July 4th and July 8th, 1998; two counts of endangering children: Diamond and Anthony; and -5- three counts of domestic violence: Groomster, Diamond, and Anthony. A jury trial followed. Among the fourteen witnesses presented by the state, Dr. Coverdale opined that the burn on Diamond's torso had been caused by placing a hot iron on her chest and Dr. Rhim described it as a second-degree burn which could only occur if the iron had been placed there for more than ten seconds. Anthony testified that Maurice did not mistreat or strike Deja, but whipped Diamond with a belt, punched him in the chest and hurt his mother. He also testified that his mom probably left some of the marks on his body with a belt and that his dad had whipped him with a belt on his legs but did not put marks on his body. Harris testified on his own behalf. He explained that he had been ironing the day Diamond incurred the iron burn on her chest, and that, after he fed Diamond, he prepared to give her a bath and saw the burn mark on her body for the first time. He surmised that she must have come into contact with the iron while reaching for a glass of water near the iron. He testified that he did not hear her cry because he had been listening to the music. Regarding Groomster, he testified that he swung at her to get her off him when she grabbed his arms and legs to prevent him from leaving. Finally, he denied any knowledge that police had been looking for him since July 10, 1998 in connection with the injuries to Diamond, Anthony, and Groomster. Following the trial, the jury found Harris guilty of the felonious assault of Diamond; endangering children as related to -6- Diamond and Anthony; and domestic violence against Groomster, Diamond, and Anthony. In imposing sentence, the court found that Harris had committed the worst form of the offense in connection with the felonious assault and endangering children convictions regarding Diamond and sentenced Harris to maximum consecutive eight year terms on each of these charges; the court also imposed a consecutive three year sentence for the charge of endangering children relating to Anthony, consecutive with a term of six months for domestic violence of Groomster, for a total of nineteen and one-half years. In addition, the court sentenced Harris to concurrent terms of one year each for the domestic violence of Diamond and Anthony, which it merged with the endangering children counts. Harris now appeals, raising twelve assignments of error for our review. His first and second assignments both concern the admissibility of alleged hearsay testimony and we consider them together. They state: I. THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF AN UNAVAILABLE CODEFENDANT, THEREBY DEPRIVING DEFENDANT A FAIR TRIAL. II. THE TRIAL COURT ERRED IN ADMITTING HEARSAY TESTIMONY, WHICH DOES NOT FALL UNDER THE EXCEPTION OF EVIDENCE RULE 803(4), THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. Harris challenges various out-of-court statements by Groomster and Anthony implicating him as the source of their injuries. The state asserts that their statements are admissible as exceptions to the hearsay evidence rule. The issue then for our review concerns -7- whether the court properly admitted the out-of-court statements made by Groomster and Anthony. We consider first the group of extrajudicial statements made by Anthony to various medical personnel implicating Harris. Evid. R. 803(4) provides the medical diagnosis or treatment exception to the hearsay rule, stating in pertinent part: EVID. R. 803 HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL The following are not excluded by the hearsay rule, even though the declarant is available as a witness: *** (4) Statements for purposes of medical diagnosis or treatment Statements made for purposes 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 cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. As Harris contends that the identity of a perpetrator falls outside of the medical diagnosis exception, we apply the guidelines provided by the Supreme Court of Ohio for determining the admissibilityof out-of-court identification of a perpetrator. The court stated the following in State v. Dever (1992), 64 Ohio St.3d 401, a sex abuse case involving a child victim: We now proceed to specifically consider the propriety of admitting a child's statement identifying the perpetrator of her abuse under Evid.R. 803(4). Generally, statements of fault are seen as outside the scope of Evid.R. 803(4) because such statements are usually not relevant to either diagnosis or treatment. *** However, in [United States v. Renville (C.A. 8, 1985), 779 F.2d 430], the leading case in this area, *** [t]he [court] found several reasons why the statement of identity is pertinent to treatment or diagnosis. The statement assists the doctor in treating any actual injuries the child may have, in preventing future abuse -8- of the child, and in assessing the emotional and psychological impact of the abuse on the child. Here, Anthony's statements to the medical personnel that the marks in his body had been caused by Harris appears to be pertinent to his treatment in assisting the doctors to prevent future abuse and in assessing the emotional and psychological impact of the abuse on him 1. In addition, Harris also challenges the admission of Anthony's statement made at the hospital to Laura Brewster, a social worker. This court has previously considered the admissibility of statements made to a social worker and has held that where the social worker participated in treating the victim, the social worker's testimony was admissible pursuant to the exception found in Evid.R. 803(4). State v. Jones (Dec. 23, 1999), Cuyahoga App. No. 75390, unreported. In the instant case, Brewster testified that she had been 1 Here, Harris cited State v. Boston (1989), 46 Ohio St. 3d 108, for the proposition that the identification of the perpetrator is inadmissible under Evid. R. 803(4). Boston involves a child declarant who is unavailable to testify. The court reasoned that under proper circumstances, the out-of-court statement of a child declarant identifying, to a third person, the perpetrator of alleged child abuse is better admitted under Evid.R. 801(D)(1)(c) than Evid.R. 803(4). Accordingly, the court held that admitting a child's out-of-court identification of the perpetrator under Evid.R. 801(D)(1)(c), without the child's testimony at trial, requires the trial judge to conduct a voir dire examination of the child under oath. Pursuant to Boston, therefore, Anthony's out of court statement identifying Harris as the perpetrator would be admissible under Evid.R. 801(D)(1)(c), because Anthony, the child declarant in the instant case, testified at trial. We distinguish Boston on this basis. -9- dispatched to the hospital on July 9, 1998 to help assess allegations of child abuse and to help with discharge planning for the children. Because Anthony's statement identifying Harris as the perpetrator had been made to her at the hospital in connection with his treatment and discharge plan, we conclude that the court properly admitted Brewster's testimony. Harris also challenges the testimony of witnesses who related Groomster's extrajudicial statements, among them Timothy Russell, a firefighter and paramedic, who testified that Groomster told him that Diamond had been abused on several occasions; James Ztesar, a Fire Department Lieutenant, who testified that Groomster told him that she had been abused a few days ago; and Dr. Coverdale, who testified that Groomster told him that her boyfriend struck her on her face and chest. Our review of the record indicates that the testimony of Timothy Russell and Dr. Coverdale, which did not reveal the identify of Harris as the perpetrator, is admissible under Evid. R. 803(4) as a medical diagnosis or treatment exception to the hearsay evidence rule. Harris correctly challenged Lt. Ztesar's testimony as inadmissible hearsay evidence. However, the admission of this testimony, in our view, constitutes harmless error pursuant to Crim.R. 52(A), because the testimony is merely cumulative to the admissible testimony by the medical personnel. See State v. Fears (1999), 86 Ohio St.3d 329 (witness's hearsay testimony was cumulative and constitutes harmless error, since the error did not contribute to the verdict.) Harris also challenges police testimony regarding what -10- Groomster told them about her injuries and those of her children, contending that Groomster is untrustworthy and not credible and therefore the court should not have admitted any extrajudicial statements made by her implicating Harris. A review of the record reveals that Groomster did make inconsistent statements to medical personnel and to police as to the identify of the person who caused the children's injuries. However, a declarant's credibility goes to the weight of the evidence, an issue for the jury to determine. Therefore, Harris' challenge is not well taken, as the jury did have an opportunity to consider her credibility and the court did not err by permitting her statements to be presented to the jury. Finally, Harris challenges Groomster's statements contained in a tape recorded interview with police, which Harris offered into evidence as Defense Exhibit 1. In the interview, Groomster told the detective that Harris did the big boy discipline; that Harris would punch Anthony but she never saw him use a belt on Anthony; that it is she who whooped him; and that her injuries came from fighting with Harris during which Harris swung at her. Here, Harris offered the tape into evidence. When a party offers evidence at trial, he is precluded from challenging on appeal the prejudicial effect of that evidence. On the basis of the foregoing, we overrule Harris' first and second assignments of error. Harris' third assignment of error states: III. THE COURT ERRED IN ADMITTING ANY STATEMENTS MADE BY MAURICE HARRIS DURING CUSTODIAL INTERROGATION, SINCE THEY VIOLATED HIS FIFTH AND SIXTH AMENDMENT PRIVILEGES. -11- Harris asserts that he did not knowingly and intelligently waive his rights to counsel prior to his interrogation by Detective Bensi, and therefore his statements to Detective Bensi are not admissible. The state counters that Harris signed a written waiver of his rights before making any statements to the police and therefore his statements to the police are properly admissible as evidence in this case. A defendant who is subjected to custodial interrogation must be advised of his or her Miranda rights and make a knowing and intelligent waiver of those rights before statements obtained durinG g the interrogation will be admissible. Miranda v. Arizona (1966), 384 U.S. 436. Moreover, we are mindful that an ccused's signed waiver form is strong proof that the waiver had een valid. State v. Clark (1988), 380 Ohio St.3d 252,261. Here, the record reveals that the police orally advised Harris f his Miranda rights when they arrested him. The following day, efore questioning, Detective Bensi had him read and sign a form aiving his right to counsel. Bensi explained to Harris that the harges against him related to the injuries of Diamond, Anthony and roomster. Bensi also testified that he was confident that Harris ad a full understanding of his rights. Harris himself testified hat although he voluntarily talked to the police, he did not take he time to read the Rights Form before he signed it, and he resented no evidence at trial that his signature on the waiver form ad been coerced. Because a signed waiver form is strong proof of -12- ts validity, and because no evidence suggests police coercion of he waiver, we conclude that Harris had been advised of and nderstood his rights and that he knowingly and intelligently waived is rights by signing the form. Accordingly, Harris' third ssignment of error is overruled. Harris' next assignment of error states: IV. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE WHICH WAS IRRELEVANT; WHICH WAS PREJUDICIAL, INFLAMMATORY, AND MISLEADING; OF OTHER ACTS; THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. Harris maintains that the trial court erred in admitting what e termed irrelevant, prejudicial and inflammatory testimony from r. Coverdale and Dr. Rhim about possible sexual abuse of Diamond nd thereby deprived him of a fair trial. The state argues that the vidence regarding injuries to Diamond's genitalia was not admitted s evidence of sexual abuse but rather as evidence of the total hysica l abuse she suffered, and further that the court's nstruction to the jury that Harris had not been charged with any exuall y oriented crimes cured any prejudicial effect of that vidence. The issue for review then is whether the court properly dmitted the challenged testimony into evidence. The record reveals that Dr. Covedale and Dr. Rhim testified bout their diagnosis that Diamond may have been sexually abused. n response to the defense counsel's objections, the court twice nstruc ted the jury that there were no separate sexual charges gainst Harris. Because the abrasions in the genitalia area were art of Diamond's overall injuries, we are not persuaded that the -13- resentation of this testimony had been strategically calculated by he state to inflame or mislead the jury as Harris suggests. urthermore, the court cured any potential inflammatory or isleading aspectof the clinical opinion regarding possible sexual buse, in our view, by its repeated instruction that Harris had not een charged with any sexual crimes. See, State v. Treesh (2001), 0 Ohio St.3d 460, 480 (a jury is assumed to follow a court's urative instructions). This assignment of error is therefore verruled. Harris' fifth assignment of error states: V. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE WHICH WAS OF OTHER ACTS; THEREBY DEPRIVING DEFENDANT A FAIR TRIAL. Harris argues that the indictment alleged criminal conduct ccurring between July 4, 1998 and July 8, 1998, and therefore, nthony's testimony as to how Harris disciplined him with a belt onstitutes inadmissible evidence of other acts. The state argues hat Anthony's testimony is admissible because the evidence resented only pertained to the children's injuries between July 4, 998, and July 8, 1998, and further because the state did not offer he evidence to show that he acted in conformity therewith on a articu lar occasion but rather to show opportunity, intent, and nowledge. The issue then concerns whether Anthony's testimony as o how Harris disciplined him constitutes inadmissible other acts vidence. Evid. R. 404 provides in pertinent part: 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes -14- *** (B)Other Crimes, wrongs or acts. Evidence or other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Here there is testimony by Anthony that the day before his mergency room visit Harris whipped him with a belt across the hest. There is also testimony by doctors who noted that some of nthony's injuries were caused by a belt and that there was recent ruising on his chest, among other visible bruises all over his ody. Therefore, Anthony's testimony as to how Harris disciplined im does not constitute other act evidence, because it directly elates to how Anthony received the injuries from Harris during the ive days immediately before Anthony's emergency room visit, the eriod of time specified in the indictment. Accordingly, we verrule this assignment of error. Harris' sixth assignment of error states: VI. THE TRIAL COURT ERRED IN NEGLECTING TO INSTRUCT THE JURY ON SELF-DEFENSE RELATIVE TO COUNT SIX WHICH INVOLVED EBONY GROOMSTER. Harris argues that the trial court committed plain error by ailing to instruct the jury on self-defense relating to the charge f felonious assault of Groomster. The state argues that Harris ever objected to the court's failure to give an instruction on elf-defense and further that the court had no need to give such an nstruction to the jury. The issue for our determination is thus hether the trial court erred in failing to instruct the jury on the efense of self-defense arising out of the felonious assault of -15- roomster. In State v. Williford (1990), 49 Ohio St.3d 247, the Ohio upreme Court explained the law of self-defense: Under Ohio law, self-defense is an affirmative defense. (Citation omitted.) To establish self-defense, the defendant must show "*** (1) [he] was not at fault in creating the situation giving rise to the affray; (2) *** [he] has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of force; and (3) *** [he] must not have violated any duty to retreat or avoid the danger.***" State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus. The defendant is privileged to use that force which is reasonably necessary to repel the attack. (Citation omitted.) "If the defendant fails to prove any one of theseelements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense." (Citation omitted.) urthermore, R.C. 2901.05 states, in pertinent part: *** The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused. In State v. Melchior (1978), 56 Ohio St. 2d 15, syllabus, the ourt stated: The proper standard for determining in a criminal case whether a defendant has successfully raised an affirmative defense under R.C. 2901.05 is to inquire whether the defendant has introduced sufficient evidence, which, if believed, would raise a question in the minds of reasonable men concerning the existence of such issue. Here, the record reveals that Groomster suffered multiple acial injuries and abrasions to her upper extremities and that she old Dr. Coverdale that her boyfriend struck her in the face and hest with his fist. In support of his claim of self-defense, arris testified that Groomster incurred injuries during a scuffle -16- here she grabbed his arms and legs to prevent him from leaving her partment and he slung her off, causing her to hit the wall. The urden of going forward, by a preponderance of the evidence, with he evidence of the affirmative defense of self-defense is upon the ccused, see R.C. 2901.05, supra. An examination of the record ere, however, does not reveal that it contains evidence which, if elieved , would raise a question that Harris was not at fault in reating the scuffle, that he had a bona fide belief that he was in mminent danger of great bodily harm from Groomster, or that he did ot violate any duty to retreat before using force. See Williford, upra. Therefore, we have concluded that Harris has not uccessfully raised an affirmative defense of self-defense under .C. 2901.05 entitling him to a self-defense instruction. We herefore overrule this assignment of error. Harris' seventh assignment of error states: VII. MAURICE HARRIS WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, THEREBY BEING DEPRIVED OF A FAIR TRIAL. Harris argues that he received ineffective assistance of ounsel because his counsel failed to object to (1) the introduction f Harris' statements to police during interrogation and (2) the ack of self-defense instruction. To sustain a position that his counsel had been ineffective, arris must demonstrate both deficient performance and that, but for uch conduct, the outcome of the trial would have been different. ee Stick land v. Washington (1984), 466 US 668; State v. Bradley -17- 1989), 42 Ohio St. 3d 136. On the basis of our discussions relating to the admissibility f Harris' statements to the police and to the lack of evidence to upport a jury instruction on self-defense, we conclude that the ecord before us does not indicate ineffective assistance of ounsel. We therefore overrule this assignment of error. Harris' eighth assignment of error states: VIII. THE CONVICTION IN COUNT FOUR WAS CONTRARY TO LAW, IT WAS CONTRARY TO THE INSTRUCTION GIVEN BY THE COURT. Harris contends that his conviction of endangering children is ontrary to law because the jury made a specific finding that he did ot cause serious physical harm to Anthony, which, he argues, should reclude it from finding him guilty of endangering children. The tate did not directly address this issue. The issue here concerns whether Harris' conviction of ndangering children is inconsistent with the jury's finding that e did not cause serious physical harm to Anthony. R. C. 2919.22 defines the offense of endangering children. It tates, in pertinent part: *** (B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: *** (3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, disc ipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child; *** (E)(1) Whoever violates this section is guilty of endangering children. -18- *** (3) If the offender violates division (B)(2), (3), or (4) of this section, except as otherwise provided in this divisi on, endangering children is a felony of the third degree. If the violation results in serious physical harm to the child involved, *** endangering children is a felony of the second degree. (Emphasis added.) In State v. Glaros (1960), 170 Ohio St. 471, the court stated n its syllabus: It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such erro r could have been avoided or corrected by the trial court. Here, Count Four of the indictment charged Harris with dministrating corporal punishment or other physical disciplinary easure or physically restraining Anthony, resulting in serious hysical harm, in violation of R.C. 2919.22. The record also reveals hat the court instructed the jury as follows: Count Four. ***. Before you can find the defendant guilty, you must find beyond a reasonable doubt that *** the defendant did recklessly administer corporal punishment or othe r physical disciplinary measure or physically restrained Anthony Pitts, a child under eighteen years of age, date of the birth, April 18, 1993 resulting in serious physical harm,in violation of section 2919.22 of the Ohio Revised Code. A careful analysis of R.C. 2919.22 reveals that engaging in onduct which creates a substantial risk of serious physical harm s an element of the offense of endangering children, while a inding of causing serious physical harm pertains to the degree of he offense. See R.C. 2919.22(E)(3). Therefore, the jury's finding hat Harris committed the offense of endangering children is not nconsistent with its further finding that Harris did not cause -19- erious physical harm to Anthony. We therefore conclude that arris' conviction of endangering children is not precluded by law nd overrule this assignment of error. Harris' ninth assignment of error states: IX. THE COURT ERRED IN SEPARATELY CONVICTING AND PUNISHING DEFENDANT FOR ALLIED OFFENSES. Harris argues that his convictions and punishment for separate ounts of endangering children and domestic violence regarding iamond were based on the same act and therefore the court subjected im to double jeopardy in violation of his constitutional rights. e makes a similar argument regarding his convictions and punishment elating to Anthony. The state counters that Harris was convicted or separate acts committed upon Diamond and upon Anthony. The ssueis then whether the court erred in separately convicting and entencing Harris for allied offenses. R.C. 2941.25(A) addresses allied offenses, stating: 2941.25 MULTIPLE COUNTS (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. urthermore, the applicable test for the determination of similar mport is set forth in State v. Rance (1999), 85 Ohio St.3d 632 as he following: if the elements of the crimes correspond to such a egree that the commission of one crime will result in the -20- ommission of the other, the crimes are allied offenses of similar mport. On the other hand, if the elements do not so correspond, he offenses are of dissimilar import and the multiple convictions re permitted. Here, the offenses of endangering children and domestic iolence involve different elements, see R.C. 2919.22 and 2919.25; he elements of the two offenses do not correspond to such a degree hat the commission of one crime will result in the commission of he other. Therefore, Harris' offenses are of dissimilar import and ultiple convictions are permitted. Moreover, the medical testimony eveals that the doctors documented twenty-one injuries on different arts of Diamond's body and that the bruises were in different tates of healing. Similarly, the record indicates that Anthony had umerous bruises on his torso, chest, back and legs, which had been nflicted at different times. Therefore, this is not a case where defendant is convicted of multiple counts for a single injury. ather, the record contains evidence of numerous injuries on the hildren such that the jury could find that Harris' conduct toward he children on various occasions satisfied the elements of both the ffense of endangering children and that of domestic violence. We herefore conclude that Harris may be convicted separately for ndangering children and domestic violence. Consequently, we verrule this assignment of error. Harris' tenth assignment of error states: X. THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO CONVICT MAURICE HARRIS. Harris argues that his convictions are based on insufficient -21- vidence while the state asserts that sufficient evidence existed o support the guilty verdicts. In reviewing the record for sufficiency, the relevant inquiry s whether, after viewing the evidence in a light most favorable to he prosecution, any rational trier of fact could have found the ssential elements of the crime proven beyond a reasonable doubt. tate v. Jenks (1991), 61 Ohio St.3d 259, syllabus. Here, Harris points us to Groomster's statements that mplicated Groomster herself and the children's biological father or the children's injuries. He also directs us to his denial at rial of causing the children's injuries. We note that Harris' rgument raises the issue of the credibility of the witnesses or eclarants. The relevant inquiry in a sufficiency claim, however, nvolves a different analysis. Given the state of the record, we ave concluded that after viewing the evidence in a light most avorable to the prosecutor, any trier of fact could have found the ssential elements of the crimes committed on Diamond, Anthony and roomst er proven beyond a reasonable doubt. Consequently, this ssignment of error is overruled. Harris' eleventh assignment of error states: XI. MAURICE HARRIS WAS DEPRIVED OF HIS LIBERTY ABSENT DUE PROCESS OF LAW BY THE MAXIMUM AND CONSECUTIVE SENTENCES HE RECEIVED IN THE WITHIN CASE, AS THE SENTENCES DO NOT COMPORT WITH OHIO'S NEW SENTENCING SCHEME. Har ris complains that the court erred in imposing maximum entences without making the necessary statutory findings for the elonious assault and child endangering counts relating to Diamond -22- nd similarly for his convictions of domestic violence of Diamond nd Anthony. He also complains that the court erred when it imposed onsecutive sentences without giving its reasons for the felonious ssault against Diamond, the two endangering children convictions, nd the domestic violence count relating to Groomster. In addition, e challenges the court's sentence for his offenses against Anthony nd Diamond violated the principle of proportionality. The state sserts that the court properly imposed maximum consecutive entences. We consider first the issue of whether the court properly mposed maximum sentences. In reviewing a maximum sentence, we efer to R.C. 2929.14(C), which states: * * * the court imposing a sentence upon an offender for a felony may impose the longest prison term * * * only upon offend ers who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders * * * and upon certain repeat violent offenders * * *. In State v. Edmonson (1999), 86 Ohio St.3d 324, the court tated at P.329 that the record must reflect that the court imposed he maximum sentence based on the offender satisfying one of the isted criteria in R.C. 2929.14(C). (Emphasis added.) Additionally, R.C. 2929.19(B)(2) provides that when imposing maximum sentence on an offender for a single offense, a trial ourt must make a finding that gives its reasons for the maximum rison term. Here , in connection with felonious assault and endangering hildren relating to Diamond, the court stated I gave Mr. Harris -23- he maximum amount of time * * *. The court finds that the offender ommitted the worst form of the offense on each of those counts. he record in addition reflects the reasons for the court's finding: he court stated, for example, the burns [on Diamond] were so evere that two years later you could still see the steam holes in er stomach, and we're dealing with a Down's Syndrome child who annot properly take care of herself. Any child that age would not roperly take care of herself. So, that's even more troubling. ecause the record here contains proper finding made by the court nd its reasons, we have concluded that the court did not err in mposing a maximum sentence on these two counts. Rega rding the domestic violence counts against Anthony and iamond, Harris complains that the court did not make the inding that e committed the worst form of offense or that he posed the greatest ikelihood of committing future crimes. R. C. 2929.14(C) does not specifically require the magic ords set forth in the statute; it does not dictate the usage of uch talismanic language, but rather requires substantial ompliance with the statute. See State v. Bolton (Feb. 24, 2000), uyahoga App. No. 75865, unreported, State v. Gillespie (April 24, 000), Clermont App. Nos. CA99-09-090, CA99-09-091, unreported, tate v. Blondheim (May 27, 1998), Summit App. No. 18594, nrepor ted, State v. Quinn (Aug. 30, 1999), Butler App. No. A99-01-018, unreported, State v. Estrada (Sept. 18, 1998), -24- andusky App. No. S-98-006, unreported. Substantial compliance will e found where the trial court has provided sufficient findings on he record to satisfy the requirements of R.C. 2929.14 (C). illespie, Quinn. See also, State v. Brooks (Aug. 18, 1998), ranklin App. No. 97APA11-1543, unreported. Here, the court stated the following during sentencing: Then there is domestic violence convictions for all three members of the household; that being Diamond and Anthony. *** I can't imagine the suffering these children went through, especially Diamond, when I look at these photos and see that iron burn on her stomach that is still visible after all this time. And, the marks on Anthony, it looks like from belts, probably punching too. As I say, a picture speaks a thousand words. These children suffered immensely. *** To have an iron placed on a child's stomach is just unforgivable. If we can't protect the children, who will? *** *** The court has to make specific findings according to law. I`ve reviewed that; I will do that. *** *** Again, these pictures shall be made part of the record for the Court of Appeals to clearly see and understand why I gave the sentence. *** (Tr. 1272- 1274.)(Emphasis added.) We recognize that the court did not articulate the words: the orst form of the offense in its sentencing on the domestic iolence convictions. The record, however, reflects that the court ealized its obligations pursuant to the statutes and specifically eferred to the photographs which depict why the trial court onsidere d this to be the worst form of the offense of domestic iolence: for example, State's Exhibit 19 and 21 which depict harred flesh on Diamond's left index finger caused by a cigarette ighter; State's Exhibit 20 which depicts burned scars to the back f Diamond's right hand and State's Exhibit 22 which depicts a burn -25- o the palm of her right hand; in addition, State's Exhibit 7, 11, nd 12 depict numerous scars and bruises to Anthony's chest and back - some more than an inch in length -- caused by beatings dminis tered to him with a belt. Our court, as well as other ppellate courts, have held that R.C. 2929.14(C) does not require magic words. In our view, the trial court's remarks that a icture speaks a thousand words ; these pictures shall be made part f the record for the Court of Appeals to clearly see and understand hy I gave the sentence ; and [t]he court has to make specific indings according to law. I've reviewed that; I will do that mply demonstrate that the trial court made the finding, although ot verbalized, that Harris committed the worst form of domestic iolence. The record sufficiently evidences the trial court's dheren ce to the public policy underlying R.C. 2929.14(C) which imits maximum sentences to the most deserving offenders, dmonson, supra. Therefore, we have concluded that the trial court mposed a maximum sentence in substantial compliance with the tatute. We next consider Harris' complaint that the court erroneously mposed consecutive sentences because the court, while making the equisite findings, did not give its reasons for the findings. R.C. 2929.19(B)(2)(c) requires a court to make a finding and ive its reasons when imposing consecutive sentences. Moreover, R.C. 929.14(E)(4) provides the circumstances where consecutive sentences re proper: (4) If multiple prison terms are imposed on an off ender for convictions of multiple offenses, the court -26- may require the offender to serve the prison terms cons ecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sen tences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: *** (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adeq uately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demo nstrates that consecutive sentences are necessary to protect the public from future crime by the offender. In this case, the trial court stated the following during entencing: Now, Counts 2, 4, 5, and 6 shall run consecutive to each other. Court finds that this is necessary to protect the public and punish the offender; that this is not disproportionate to the conduct and the danger he poses and undoubtedly this harm is so great or unusual that a single term does not adequately reflect the seriousness of the conduct. (Tr. 1274.) The record before us reveals that the court made the necessary indings: the court stated that (1) the consecutive sentences are ecessary to protect the public and punish the offender; (2) that he consecutive sentences are not disproportionate to the conduct nd the danger he poses; and (3) that the harm is so great or nusual that a single term does not adequately reflect the eriousness of the conduct. To support these findings, the court ommented on the unusual manner in which Harris inflicted the iron urn on Diamond; the suffering experienced by Diamond and Anthony; he fact that Diamond could not articulate the pain and suffering hat she endured; and the need for society to protect the children -27- ho could not protect themselves. We are satisfied that the record eflects that the court gave its reasons for the consecutive entences for imposing consecutive sentences. Lastly, Harris challenges that his sentences for offenses gainst Diamond and Anthony violate the principle of roportionality, because Groomster, in a separate case, received a wo year sentence for her offense against Diamond concurrent with six month sentence for the offense against Anthony, to run oncurrently. R.C. 2929.11 sets forth the purposes of felony sentencing and nunciates the proportionality principle for sentencing: (A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both. (B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony senten cing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and cons istent with sentences imposed for similar crimes committed by similar offenders. (Emphasis added.) Here, we only need to point out that the record before us uggests that Groomster's offenses against the children are of a ature dissimilar to those committed by Harris. Her offense against iamond consists in her failure to bring the attention of Diamond's njuries to the authorities. As to Anthony, the child stated that he marks on his body were caused by Harris, even though his mother -28- ould also punish him by whipping him with a belt. isproportionality is not an issue in this case because the crimes ommitted by Groomster and Harris are not similar offenses. Fur thermore, we are mindful of the discretion given to the rial court regarding sentencing matters. As the court stated in tate v. Tutt (1988), 44 Ohio App.3d 138, [a] sentence imposed ithin the statutory limits and upon consideration of the statutory riteria is generally within the trial court's discretion and will ot be reversed on appeal. Because the sentences here are within he statutory limits and because the court's comments throughout the entencing evidences the court's considerations of the need to unish Harris and to protect the children, we conclude that the entences of Harris were reasonably calculated to achieve the two verrid ing principles set forth in R.C. 2929.11(A) and did not iolate the proportionality principle provided in R.C. 2929.11(B). On the basis of the foregoing, we overrule Harris' eleventh ssignment of error. Harris' final assignment of error states: XII. THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF A SEVEN YEAR OLD INFANT, WHO PROVED NOT TO UNDERSTAND BETWEEN TRUTH AND FALSITY AND HIS RESPONSIBILITY TO BE TRUTHFUL. Harris contends that the court erred in finding seven-year-old nthony competent to testify and in improperly admitting his estimony at trial. The state counters that the court properly ound the child ompetent. The issue then concerns whether the court erred in -29- inding Anthony competent to testify. R.C. 2317.01 provides, in pertinent part: 2317.01 COMPETENT WITNESSES All persons are competent witnesses except those of unsound mind and children under ten years of age who appear incapable of receiving just impressions of the facts and transa ctions respecting which they are examined, or of relating them truly. Furthermore, in State v. Frazer(1991), 61 Ohio St.3d 247, the ourt provides the following guidelines: In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. In addition, we recognize that the determination of competency f children under the age of ten to testify is within the sound iscretion f the trial judge and will not be reversed on appeal absent clear buse of discretion. State v. Allard (1996), 75 Ohio St.3d 482. In the instant case, the trial court held a competency hearing rior to trial to determine Anthony's competency to testify. During he hearing, the court made the following determinations: Okay. From the Court's observations, Anthony stated that if he didn't tell the truth, he might get whipped by his mother, of which I believe is a standard response. He also stated that he did not talk with his mother about this. And to me, that is important. He seemed to have the suff icient capacity to observe and remember and comm unicate. And also, he is conscious of the duty to speak the truth, which I think is important here. He recognizes authority, and he recognizes right from wrong. And what happens when he doesn't tell the truth. Potenti ally when he doesn't tell the truth. And he -30- answered sufficiently in terms of his name, age, residence, who lives with him, and things of that nature. So he has anunderstanding. And when asked why he was here, he has an understanding of what's going on. Which I think is sufficient for him to testify. (Tr. 43-44.) Here, we are aware that the record also reveals that Anthony ad demonstrated a lack of time perception at the hearing and later ade inconsistent statements at trial regarding whether he beat up n his sister. However, the court's comments above reflect that it ook into consideration the guideline set forth in Frazier, and herefore we are satisfied that the trial court did not abuse its iscretion in finding Anthony competent to testify. Consequently e overrule this assignment of error and affirm the judgment of the rial court. Judgment affirmed. It is ordered that appellee recover of appellant its costs -31- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The Defendant's conviction having been affirmed, any bail pending appeal is terminated. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, P.J. and PATRICIA A. BLACKMON, J. CONCUR. TERRENCE O'DONNELL JUDGE S.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E)unless a motion for reconsideration with supporting brief,per App.R.26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .