State v. Blankenship

[Cite as State v. Blankenship, 2026-Ohio-4329.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY STATE OF OHIO, CASE NO. 2025-P-0033 Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas NICHOLAS L. BLANKENSHIP, Trial Court No. 2024 CR 01027 Defendant-Appellant. OPINION AND JUDGMENT ENTRY Decided: November 2, 2026 Judgment: Affirmed Connie J. Lewandowski, Portage County Prosecutor; Vincent V. Vigluicci and James W. Armstrong, Assistant Prosecutors, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). William C. Livingston, Berkman, Gordon, Murray & Devan, 55 Public Square, Suite 2200, Cleveland, OH 44113 (For Defendant-Appellant). MATT LYNCH, P.J. {¶1} Appellant, Nicholas L. Blankenship, appeals the judgment of the Portage County Court of Common Pleas sentencing him to an aggregate term of imprisonment of 30 years to life after he was found guilty by a jury of two counts of rape of a child less than 10 years of age and two counts of gross sexual imposition (“GSI”) of a child less than 13 years of age. After a careful review of Blankenship’s assignments of error, as well as the record and pertinent law, we affirm the judgment of the trial court. {¶2} On November 22, 2024, a Portage County Grand Jury indicted Blankenship on six counts: Counts (1) and (2), rape of a child less than 10 years of age, first-degree felonies, in violation of R.C. 2907.02(A)(1)(b); Counts (3) and (4), sexual battery of a child less than 13 years of age, second-degree felonies, in violation of R.C. 2907.03; and Counts (5) and (6), GSI of a child less than 13 years of age, third-degree felonies, in violation of R.C. 2907.05. {¶3} The matter proceeded to a four-day jury trial on April 8, 2025. The State presented as witnesses the victim, B.E. (d.o.b. 5/31/12); B.E.’s father (“Father”); B.E.’s mother (“Mother”); Jessica Hoskin, a registered nurse from the Portage County Children’s Advocacy Center; and Billy J. Byers, a detective for the City of Aurora Division of Police. Preliminary Jury Instructions and Opening Arguments {¶4} As relevant to Blankenship’s assigned errors, the trial court’s instructions to the jury included the following: The opening statement should give you an overall picture of what each side thinks the evidence will be. The Attorneys are not witnesses. And since it is your duty to decide the case solely on the evidence you hear in this courtroom you must not consider as evidence any statement of the Attorneys made during trial, including voir dire. And I will say this 100 times. All of the evidence that you need to make this decision will come to you from the witness stand and any Exhibits that are admitted, not what the Attorneys say. ... If the defense does not present any evidence, you may not consider that for any purpose. {¶5} During the State’s opening argument, the prosecutor1 referred to an exercise he had the jurors perform during voir dire regarding whether they could put aside their bias to judge B.E.’s credibility: It is difficult still for [B.E.] to talk about this, right. 1. Two attorneys prosecuted the case for the State. PAGE 2 OF 37 Case No. 2025-P-0033  And there’s a reason, right, there’s a rhyme or reason why I did that exercise with you all. I know the retired police officer when I asked him, and I had you all put your heads back, close your eyes, think about your last sexual experience, things like what part of your body touched what part of theirs, and then we’re gonna talk it, and every single person in this room was like we’re gonna do what? Even . . . told me, I’m not doing it. He looked at me and said I’m not doing it. I think most of you probably were getting ready to tell [the prosecutor] I’m not talking about my last sexual experience. I did that so you could understand and not judge her, right. Not be bias[ed] against her. She’s twelve as she sits here today. I have to call her to the witness stand and I have to bring her in this courtroom. I have to make her go through that because that’s what happens in a sexual abuse trial. We’re going to do our best to have [B.E.] tell you what happened to her. I can’t promise you what she’s going to say or how she’s gonna say it, we’re all gonna see it unfold. I just ask you that you keep an open mind and you allow her the opportunity to tell you what happened to her so you can judge her credibility. And then I’m going to let [defense counsel] cross- examine her. I don’t envy a defense attorney that has to do that, right. Tough job. You gotta go in and gotta cross-examine a little kid that’s been abused. It’s even tougher when the kid has no reason to lie. There is nothing fun about the process, and it’s probably just telling you what actually happened. [At this point defense counsel objected, contending the State was giving an opinion. The court overruled the objection.] You you’ll get a chance to weigh her credibility, listen to her story and simply decide. As the detective will tell you, Detective Byers talked to her, he met with the family. As all good detectives, he looks and he tries to see, okay, is there something going on here? Is dad coaching her, is she lying? He looks at this case, and he’s been on the job for twenty-plus years, and he can’t find one thing that sets off a red flag for him for why [B.E.] these years later would come out and say this if it wasn’t true. If it wasn’t just her telling everyone what happened to her at an age where she was able to talk about it. PAGE 3 OF 37 Case No. 2025-P-0033  He will tell you he made a decision at that point, conferred with his fellow officers, and he said, the evidence and her testimony is evidence, it’s testimonial evidence, you decide what weight to give it. . . . {¶6} Defense counsel’s opening statement, after discussing the “agreed facts,” which included a stipulation that B.E. was the victim of a prior sexual assault that resulted in a conviction, similarly discussed the issue of the victim’s credibility in this case: . . . But you will have more than that. You’ll have your own ability to perceive someone telling the truth or not the truth. You will decide if a four or five- year-old girl comes in here all these years later, tells what happened and give you details of what happened. And that’s your job. That’s all we’re asking. That’s all that we’re asking. Because you make up your mind who to believe and what to believe. The State’s Case {¶7} Father testified he shared custody of B.E. with Mother before gaining sole custody in 2018. He described an incident that took place when B.E. was approximately five years old. He had picked up B.E. for his parental visitation and noticed B.E.’s hair looked greasy. He asked her if she had taken a shower. B.E. told him, “[Blankenship] washed me,” and pointed to her genitals. He asked B.E. what Blankenship used to wash her, and B.E. told him, “just soap on his hands.” Father called Mother right away, and they argued. Mother “was very mean and said that she could do whatever she wants, she has custody.” Father grew even more concerned after Mother and Blankenship, who lived with Mother and B.E. at the time, started exhibiting symptoms and behaviors of drug use, prompting him to seek full custody of B.E. Blankenship stopped accompanying Mother to exchange B.E. with Father for parental visitations sometime in 2017. {¶8} Father further testified B.E. was inappropriately touched by his girlfriend’s son, who pleaded guilty and was convicted in Cuyahoga County during the time Blankenship “was in the picture.” PAGE 4 OF 37 Case No. 2025-P-0033  {¶9} Father recalled B.E. was being seen by a doctor in Lorain County in 2020, and she confided to the doctor that Blankenship had been bathing her. This prompted an investigation by the Aurora Police, which included a forensic child interview in Lorain County; however, no charges were filed. {¶10} In November 2024, Father was in his garage with his nephew, who lived with him and B.E. B.E. had just returned home from a stay at a behavioral health center where she was treated for depression. B.E. came into the garage and told Father she had something to tell him. He “looked at her and I said, look, go ahead, honey, you can tell me, you know. And she had tears in her eyes. And I started to think like, okay, this is – she’s gonna come out and finally talk about this.” She wrote, “he [Blankenship] raped me,” on a piece of paper and handed it to Father. Father called the Aurora police detective who had investigated the incident in 2020. {¶11} Father denied there was any motivation for him or B.E. to fabricate a story. As relevant, the following colloquy occurred on direct examination: [State:] Now for purposes of, if somebody were to say at that time you were trying to make this up or get [B.E.] to lie, you had full custody of her at that time, right? [Father:] Yes. [State:] Her mother, . . . in prison – [Father:] Right. [State:] -- for her part in the death of somebody in an overdose case? [Father:] Right. [State:] At that time she would have three or four years left in her sentence I think. [Father:] Right. PAGE 5 OF 37 Case No. 2025-P-0033  [State:] There’s no custody battle going on. There’s no reason for you to make up a story, correct? [Father:] No. [State:] [Blankenship’s] not fighting you for custody of anybody. He’s not even involved in your family’s life in 2024. [Father:] No. And this is a long time ago. And she brought this up years later. [State:] That’s what I’m trying to establish. I’m asking, does there appear to be any motivation to lie? [Father:] No. [State:] There just seems to be nothing there other than [B.E.] coming forward – [Father:] I would never do that to somebody. I would never ever do that to somebody. [State:] Unless you believed he molested your daughter and then you would? [Father:] Yeah, I’m gonna make the proper calls and get him arrested and put him where he needs to belong. [State:] And at that time you believed your daughter, correct? [Father:] Oh, most definitely. I one hundred percent believe my daughter. {¶12} Father further testified the Aurora police department reopened the case, and B.E. had a forensic interview with Nurse Hoskin at the Children’s Advocacy Center at University Hospitals, Portage Medical Center, after which Blankenship was indicted. {¶13} Nurse Hoskin’s interview with B.E. was played for the jury and admitted into evidence. During the interview, B.E. described the incidents in detail, which included instances of sexual contact and sexual conduct, including penetration. Nurse Hoskin testified she relayed to Father after the interview what B.E. had disclosed because B.E. had described reportable offenses. Nurse Hoskin recounted the interview, stating B.E. PAGE 6 OF 37 Case No. 2025-P-0033 went into specific details about two events, one in B.E.’s bedroom and one in the bathroom. {¶14} Prior to B.E. taking the stand, counsel and the court discussed the police therapy dog that would assist B.E. during her testimony. At the State’s request, the court agreed it would give the jurors the “standard instruction” regarding the dog’s presence and “why he’s here.” Defense counsel had no objection, stating, “I’m sure the court will give the right instruction to the jury.” Accordingly, the court gave the following instruction: I believe [B.E.] is going to testify first thing this morning. As you saw as you were walking by, Bryan is the dog that is basically employed by the Portage County Sheriff’s Office that courts in recent years across the state have begun allowing the dog to stay nearby whoever’s testifying, sometimes adults, sometimes children. So Bryan will actually be laying underneath the witness stand. He’s never a distraction. He doesn’t remove your attention from the witness testifying, but I do allow that[,] as courts have across the state permitted that as a form of – not necessarily comfort, but so that any of the witnesses, whether it’s an adult or a child, have the opportunity to have the dog there to touch when they’re nervous. So we’re gonna go ahead and do that and get Bryan in here and then we have our witness ready, I believe, correct? {¶15} B.E. testified she used to live in Aurora with her mom, her older half-brother, and “Nick” (Blankenship). She recounted the first time Blankenship came into her bedroom when her mother was not home. She was five or six years old, and she was playing with her toys. Blankenship asked her to play a game that “involves taking clothes off.” She stated his “private part touched mine.” Upon further questioning, she testified Blankenship “used his penis” inside and outside of her vagina. {¶16} B.E. recalled the second incident she discussed with Nurse Hoskin in the forensic interview, which occurred at her mother’s house in the bathroom when she was five or six years old. B.E.’s mother was asleep, and B.E. was taking a shower. PAGE 7 OF 37 Case No. 2025-P-0033 Blankenship came into the bathroom and told her, “we’re gonna play that game again.” B.E. told him “no” and said she “did not like that game.” He took his clothes off, and the “same thing that happened in the bedroom” occurred in the shower. When pressed further, B.E. testified Blankenship’s “private parts” touched the inside and outside of her vagina and breasts. {¶17} After each incident, Blankenship told B.E. not to tell anyone because they could both “get in trouble,” it was “just like a game like.” B.E. said she believed him “because I trusted him because, you know, he’s my mom’s boyfriend, like, so I trust him. I was like, okay. So I didn’t tell anybody because I was afraid that I would get in trouble.” B.E. testified she came forward in 2024 because she felt like she grew up and “learned that I wouldn’t get in trouble for that and that it wasn’t my fault so I wanted to tell somebody because I just like – because it was weighing heavily, like I was thinking about it a lot. I just needed to get it off my chest.” {¶18} B.E. acknowledged her mother has drug issues and is currently in prison. B.E. testified she has not seen her mother in years, and her mother sends her letters “once in a while.” B.E. felt her mother was suspicious of Blankenship at the time because she overheard heard her mother say to Blankenship, “you shouldn’t be in my child’s bedroom and you shouldn’t be with her alone.” A few months later, Mother and Blankenship ended their relationship and Blankenship moved out of the house. A short time after that, B.E. went to live with her father. {¶19} Upon the prosecutor’s questioning, B.E. confirmed her testimony was the truth, and she had no reason to lie. As relevant, the following colloquy occurred during direct examination: [State:] Is everything you told the nurse in that video about the details of what occurred between you and [Blankenship] truthful? PAGE 8 OF 37 Case No. 2025-P-0033  [B.E.] Yes. [State:] If I were to sit here and try to say and think of a reason for you to lie, I’m going to ask you some questions, I don’t think you are, but I want to ask you some questions. If I were to try to – we talked about how people may say what if she’s lying. {¶20} Thereafter, defense counsel objected, contending it was improper for the prosecutor to give his opinion on whether B.E. was lying. The prosecutor agreed to “move on.” The court found the prosecutor was “going there to comfort her. Just avoid doing that again.” {¶21} As relevant, in the following colloquy on cross-examination, defense counsel asked B.E. about a prior sexual assault, to which the State objected: [Defense counsel:] Okay. Now there was another time that something happened and it was with I think your dad’s girlfriend’s son. [B.E.] Yeah, nothing happened with him. [Defense counsel:] I’m sorry? [B.E.] Nothing happened with him. It was my mom who had thought that, you know that was happening, and she made it all up. The following occurred in a sidebar, outside the presence of the jury: [State:] I assume he asked, but he’s not asking her to go into details under rape shield and then this whole thing, it would be out on the rape shield. I let it in for the something that happened to her, proceeded to Cuyahoga County, but for her to have to answer questions about all that – [Defense counsel:] So this is new for both of us. She’s saying mom made it up. I have a right to go into – [State:] It’s not relevant. [Defense counsel:] He’s pled guilty. I have a right to go into what you think your mom made up about it. You know, these things were charged, he was convicted. PAGE 9 OF 37 Case No. 2025-P-0033  [State:] It wouldn’t even get in if she admitted – she’s trying to say that the kid did it or something and nobody knows the answer and it’s not relevant. It’s specifically excluded under the rape shield. [The Court:] I think it is. You can ask if she knows – ... [The Court:] I think you can ask if she knows what happened as a result of those charges, but I don’t think you can ask her about what happened. [Defense counsel:] Okay. So if I ask her what did mom make up and she said mom lied. After that can I ask what mom lied about? [The Court:] I don’t know that it’s specific. [State:] Her mom hasn’t accused [Blankenship]. In fact, she said mom didn’t know [Blankenship] was doing this. [The Court:] I think you can ask mom when she testifies. [Defense counsel:] That’s a lie. The guy’s in trouble and he got convicted of it. She said nothing happened. [The Court:] But she hasn’t even seen her mom in years. [State:] Her victimization is off limits. In another incident, it’s other sexual conduct and you addressed it. Now to get into the details is a whole different trial. The juvenile is not on trial here. [The Court:] I don’t think you can go into any of the details. I think that’s as far as you can go with it. And technically you shouldn’t have asked the question, although, because it was brought up initially, I think you guys discussed it prior to trial. For context, it was ground work for why she was in there and that kind of thing, but I think that’s as far as you can go with it. {¶22} Defense counsel did not probe further on the subject when his cross- examination of B.E. resumed. {¶23} Detective Byers testified he received a call in 2020 from Lorain County Children Services reporting B.E. as a possible victim of sexual assault committed by Blankenship. He arranged a forensic interview with B.E. in Lorain County. After reviewing the taped interview, Det. Byers concluded there was no evidence of sexual gratification PAGE 10 OF 37 Case No. 2025-P-0033 since B.E. only described Blankenship bathing her while she was nude. Because B.E. was “doing well,” he decided to “soft close” the case. Det. Byers explained the case was reopened in 2024, after B.E.’s father called the Aurora police department. Father spoke to the officer on duty and reported what B.E. had disclosed to him upon her return from the behavioral health center. {¶24} Det. Byers spoke personally with Father in the next few days, and the forensic interview with Nurse Hoskin was arranged. As relevant, the following colloquy occurred on direct examination of Det. Byers: [State:] And go ahead and walk us through – walk the jury through what you learned regarding what comes out in that interview? What is portrayed to you, what do you do after with this information? [Det. Byers:] The victim detailed two incidents of being raped by the suspect, by her mom’s live-in boyfriend, Nick Blankenship. One incident of rape took place in the home’s bathroom and the other took place in the victim’s bedroom in that interview. In the interview she was able to articulate some details, actually a lot of details that, you know, you’re not gonna learn from watching TV. You’re not gonna have those intimate knowledge at that age. [Defense counsel:] Objection, Your Honor. You can’t speculate on how the victim came up with her allegation. [The Court:] Sustained. [Defense Counsel:] Ask the court to strike that from the record. [The Court:] I’m not gonna strike it, but I understand where you’re going. You just have to be more specific, [prosecutor]. [State:] And Detective Byers, given your training and experience and working in the field, at this point, you’re assessing credibility, you’re assessing voracity. How did [B.E.’s] presentation in that interview come across to you with those aspects in mind, the voracity and credibility of her? [Det. Byers:] Fully credible. Very believable. [Defense Counsel:] Objection, Your Honor, as the witness’ characterization of believability. PAGE 11 OF 37 Case No. 2025-P-0033  [The Court:] Overruled. [State:] And you say fully credible, fully believable, why was that to you? [Det. Byers:] The details she provided in the interview. [State:] And how is what you’re learning now different from that 2020 report that you investigated back in 2020? [Det. Byers:] Like I said, in 2020 we lacked probable cause. And it’s in my training and experience it’s unfortunately common where victims will come forward later when time passes. I found that in other cases. So I’m not sure if I’m answering your question directly enough. [State:] I was trying to get the differences between the two. {¶25} Det. Byers continued his investigation to “substantiate the case.” He reached out to Mother who was serving a sentence at the Portage County Jail. Mother reported B.E. started exhibiting behavioral changes around the time of the incidents, including emotional problems and bedwetting. B.E. did not want to go into the bathroom or her bedroom alone, and she did not want to go to sleep. Det. Byers knew B.E. did not have any contact with Mother for the past few years and Mother had no way of knowing B.E. had reported the incidents and underwent a forensic interview. {¶26} Det. Byers subsequently arrested Blankenship on rape and sexual battery charges. Blankenship denied the charges but corroborated B.E.’s behavioral changes during the alleged time period, including the bedwetting, not wanting to fall asleep, and requiring him to “stand guard” while she went to the bathroom alone. {¶27} Mother testified she was currently incarcerated and serving a prison sentence for attempted corruption of another with drugs. Blankenship lived with her, B.E., and her son from the end of 2015 to the beginning of 2018. Mother explained the incident with Father’s girlfriend’s son took place in 2015. She further testified B.E. exhibited behavioral changes for approximately one year and six months, which included night and PAGE 12 OF 37 Case No. 2025-P-0033 day terrors, not wanting to go to sleep, not wanting to be in her bedroom or the bathroom by herself, bedwetting, and she was inconsolable. B.E. did not disclose to Mother that Blankenship had acted inappropriately towards her. Since Mother has been in prison, she has exchanged several letters with B.E. Closing Arguments and Jury Instructions {¶28} In relevant part, the court instructed the jury: The evidence does not include any statement made by counsel during trial unless such statement was an admission or agreement of certain facts. The opening and closing arguments are not evidence. They are designed to assist you in evaluating the evidence. ... The Defendant is presumed innocent unless his guilt is established beyond a reasonable doubt. The Defendant must be acquitted unless the State produces testimony or evidence that convinces you beyond a reasonable doubt of every essential element charged in the indictment. ... It is not necessary that the Defendant take the stand. He has a constitutional right not to testify. ... {¶29} During closing arguments, as relevant, the prosecutor stated: And I told you in opening I think once you’ve seen the DVD and you hear from her and then you hear that’s not enough to convict somebody, I think you can look across the table at my colleague who I respect and say you know what, it is enough. It’s plenty enough. I believe that little girl. Because if in this community a small little girl can’t come into her community courtroom and tell a story that makes as much sense as her story does, then no little kid can. Kids don’t come to court because it’s enjoyable. They come here because we as adults need to follow the due process and bring them before you. PAGE 13 OF 37 Case No. 2025-P-0033  Nothing about this case lands in that lying and it didn’t happen to her column. . . . {¶30} The jury returned a guilty verdict on all six counts. Sentencing Hearing {¶31} Approximately one month later, the trial court held the sentencing hearing. The State argued the counts of sexual battery should be merged with the two counts of rape and elected to proceed with sentencing on the counts of rape. The State further argued the remaining counts of GSI, with the additional findings by the jury that the offenses were committed to a child who was under the age of thirteen at the time of the offenses, were not allied offenses of similar import. The State believed “there was enough evidence at the trial for the jury to find [Blankenship] guilty on the GSIs as separate offenses. I don’t want to go into the graphic details, but a review of the record would show there’s evidence within the jury trial, the testimony of the victim and other evidence in the case to indicate there was sexual contact in addition to the conduct that was separate, had its own animus and I believe the court can choose to sentence on those.” The State advocated individual sentences on each count of GSI and for those sentences to run consecutively to any other sentence imposed in the case. The defense counter-argued the GSI sentences should run concurrently with the rape sentences because the “sexual contact may not have been sexual in nature.” {¶32} The court agreed with the State that the counts of rape and sexual battery merged and that the GSI counts were separate offenses. The court sentenced Blankenship on the counts of rape to two terms of imprisonment of 15 years to life, and on the counts of GSI to two terms of imprisonment of 5 years. The court ordered the rape sentences to run consecutively to each other, and the counts of GSI to run concurrently PAGE 14 OF 37 Case No. 2025-P-0033 with each other and with the counts of rape, for an aggregate prison sentence of 30 years to life. The court also found Blankenship to be a Tier III sex offender and notified him of his sex offender registry requirements. {¶33} Blankenship timely appealed and raises six assignments of error for our review: [1.] The trial court committed reversible error and violated Appellant’s constitutional right to confront the witnesses against him and right to a fair trial, secured by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution, when it prohibited defense counsel from cross-examining the accuser about a prior fabricated allegation of sexual assault that led to another person’s conviction. [2.] The trial court committed reversible error and violated Appellant’s constitutional right to a fair trial secured by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 when it permitted witnesses to give improper opinion testimony vouching for the credibility of the accuser. [3.] Appellant was denied his constitutional right to a fair trial secured by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution as a result of prosecutorial misconduct. [4.] Appellant was denied his constitutional right to the effective assistance of counsel for failing to effectively cross-examine B.E.’s mother and for failing to object to certain instances of prosecutorial misconduct and improper jury instructions. [5.] Appellant was denied his constitutional right to a fair trial and effective assistance of counsel secured by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution, as a result of the cumulative errors in this case. [6.] The trial court erred in failing to merge Counts Five and Six, charging gross sexual imposition, with Counts One and Two, rape, for purposes of sentencing in violation of R.C. 2945.21 and Appellant’s rights secured under the Fifth and Fourteenth Amendments to the United States Constitution, or, in the alternative, Appellant’s convictions on Counts Five and Six, gross sexual imposition, are based on insufficient evidence in violation of his constitutional rights secured by the Sixth and Fourteenth Amendments to the United States Constitution. PAGE 15 OF 37 Case No. 2025-P-0033  {¶34} We address Blankenship’s assignments of error out of order for ease of discussion. Ohio’s Rape-Shield Law and the Confrontation Clause {¶35} In his first assignment of error, Blankenship contends the trial court committed reversible error and violated his confrontational rights by prohibiting defense counsel from cross-examining B.E. about a prior, fabricated allegation of sexual assault that led to another person’s conviction. {¶36} “‘The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 (1965).’ Crawford v. Washington, 541 U.S. 36, 42 (2004). ‘Section 10, Article I [of the Ohio Constitution] provides no greater right of confrontation than the Sixth Amendment.’ State v. Self, 56 Ohio St.3d 73, 79 (1990).” State v. Arnold, 2010-Ohio-2742, ¶ 12. {¶37} “Cross-examination of a witness is a matter of right, but the ‘extent of cross- examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court.’” State v. Green, 66 Ohio St.3d 141, 147 (1993), quoting Alford v. United States, 282 U.S. 687, 691, 694 (1931). An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010- Ohio-1900, ¶ 62 (2d Dist.), quoting Black’s Law Dictionary (8th Ed. 2004). To the extent Blankenship claims the trial court violated his constitutional rights, a de novo standard of review applies. State v. Mitchell, 2016-Ohio-1439, ¶ 77 (7th Dist.). PAGE 16 OF 37 Case No. 2025-P-0033  {¶38} Ohio’s rape-shield law protects the accuser from the admission of evidence of prior sexual activity. The law is contained in statutes defining the crimes of rape, R.C. 2907.02, and gross sexual imposition, R.C. 2907.05, both of which include the following: Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or sexually transmitted disease or infection, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. R.C. 2907.02(D) and 2907.05(E); accord State v. Jeffries, 2020-Ohio-1539, ¶ 14. {¶39} In determining whether the rape-shield law would unconstitutionally infringe on a defendant’s rights, a court must “balance the state interest which the statute is designed to protect against the probative value of the excluded evidence.” State v. Gardner, 59 Ohio St.2d 14, 17 (1979). {¶40} “Evid.R. 608(B) allows, in the trial court’s discretion, cross-examination on specific instances of conduct ‘if clearly probative of truthfulness or untruthfulness.’ In certain instances it is within the discretion of the trial court to permit cross-examination of a rape victim as to prior false accusations of rape.” State v. Boggs, 63 Ohio St.3d 418 (1992), paragraph one of the syllabus. “Where an alleged rape victim admits on cross- examination that she has made a prior false rape accusation, the trial judge shall conduct an in camera hearing to ascertain whether sexual activity was involved and, as a result, cross-examination on the accusation would be prohibited by R.C. 2907.02(D), or whether the accusation was totally unfounded and therefore could be inquired into pursuant to Evid.R. 608(B).” Id. at paragraph two of the syllabus. {¶41} “When the defense seeks to cross-examine on prior false accusations of rape the burden is upon the defense to demonstrate that the accusations were totally PAGE 17 OF 37 Case No. 2025-P-0033 false and unfounded. Hence the initial inquiry must be whether the accusations were actually made by the [accuser]. Moreover, the trial court must also be satisfied that the prior allegations of sexual misconduct were actually false or fabricated. That is, the trial court must ascertain whether any sexual activity took place, i.e., an actual rape or consensual sex. If it is established that either type of activity took place, the rape shield statute prohibits any further inquiry into this area. Only if it is determined that the prior accusations were false because no sexual activity took place would the rape shield law not bar further cross-examination.” Id. at 423. {¶42} The instant scenario does not squarely fit within an analysis of the Boggs exception to the rape-shield law because B.E. did not testify that she falsely accused someone, but that Mother did. Further, defense counsel would never have been able to carry his burden and demonstrate B.E. made a prior “accusation” that was false and unfounded. Blankenship’s argument rests purely on speculation. “When there is no evidence that the victim made prior false allegations of rape, or as in this case, no prior allegation at all, Boggs does not require the trial court to permit cross-examination or in camera questioning of the victim to search for that evidence.” State v. Boyd, 2024-Ohio- 1059, ¶ 51 (8th Dist.) (where the appellant did not meet the threshold requirement of establishing the victim made the allegation, his claim was purely speculative); State v. McKinney, 2013-Ohio-5394, ¶ 37 (10th Dist.) (“We do not read Boggs to mandate trial courts to permit in camera questioning of the victim and other state’s witnesses regarding alleged false accusations of sexual activity in the complete absence of evidence the victim even made an accusation.”). {¶43} Further, cross-examination of B.E. or cross-examination of Mother on this issue would not be relevant or probative of Blankenship’s guilt and would be highly PAGE 18 OF 37 Case No. 2025-P-0033 prejudicial with the potential to become a “trial within in a trial” of an irrelevant matter, especially where, as here, the jury heard B.E.’s testimony that her mother was untruthful of a prior sexual allegation and could weigh it accordingly. {¶44} While we do not find the trial court abused its discretion in this case, it is troubling that B.E. alleged her mother fabricated a story upon which a conviction rests. We recognize this is a unique circumstance and tangential to whether Blankenship committed the crimes of which he was accused. Moreover, the record is devoid of any detail. However, we would be remiss not to caution that an in camera hearing should be held where “there is a possibility that the victim made false accusations of sexual abuse or activity.” State v. Stuart, 2020-Ohio-3239, ¶ 47 (11th Dist.), citing Boggs at paragraph two of the syllabus. {¶45} Blankenship’s first assignment of error is without merit. Improper Vouching {¶46} In his second assignment of error, Blankenship contends the trial court erred by permitting witnesses to give improper opinion testimony vouching for B.E.’s credibility. {¶47} “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. Improper vouching testimony, however, is “egregious, prejudicial, and constitute