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March 19, 2026 Get Citation Alerts Download PDF Add Note

State v. Toney

Ohio Court of Appeals

• Citations: 2026 Ohio 933
• Docket Number: 115261

• Judges: S. Gallagher

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.9K)

• PDF

Syllabus

Rape; consecutive sentences; R.C. 2929.14(C)(4); remote testimony; Confrontation Clause; harmless error; duplicative testimony; Crim.R. 16(I); witness lists; plain error; cumulative error; manifest weight; credibility; sentencing factors; life terms; R.C. 2971.03(B)(1)(b). Affirmed. Although the trial court erred by permitting the forensic interviewer to testify remotely, that error was harmless based on the remaining evidence and the duplication of testimony from the investigating detective. Because the defendant did not object to a statement made to the venire before the jury was picked and failed to object to any testimony encroaching on victim-impact territory, and because the appellant failed to discuss plain error, there is no reversible error. The defendant's claim that the defendant's father's absence from trial was commented on by the prosecutor is not supported by the record and none of the convictions are against the weight of the evidence solely based on the inconsistencies in the testimony heard by the jury. And finally, a trial court has authority to impose indefinite life sentences consecutively, which are statutorily required under R.C. 2971.03(B)(1)(b).

Combined Opinion

[Cite as State v. Toney, 2026-Ohio-933.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 115261
v. :

CORNELIUS TONEY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 19, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-697304-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jamielle Lamson-Buscho, Assistant
Prosecuting Attorney, for appellee.

Berkman, Gordon, Murray & DeVan and William C.
Livingston, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and
Robert McCaleb, Assistant Public Defender, for amicus
curiae Cuyahoga County Public Defender.
SEAN C. GALLAGHER, P.J.:

Cornelius Toney appeals the jury’s finding him guilty of two counts

of rape of a minor under the age of ten years old. He also appeals the resulting life

sentences with the possibility of parole after 15 years for each offense, which were

consecutively imposed under R.C. 2929.14(C)(4). For the following reasons, we

affirm.

This case involves the delayed disclosure by Toney’s relative of two

rapes that occurred when the victim was approximately seven years old (and Toney

was 20). In 2014 when the victim’s family lived in Maple Heights, Ohio, Toney

would visit and stay in the family’s home. During that time, Toney “favored” the

victim over her brothers and routinely slept in her bed. One night Toney entered

the victim’s bedroom, pulled her pants off, and raped the victim. The victim was

able to recall details of the encounter, including the blanket that she was under at

the time, a branded blanket from the Disney movie Home that the victim received

for her birthday. Toney did not say a word but motioned to the victim to remain

quiet. After being raped, the victim went to the bathroom and observed blood from

her vaginal area — although the victim told officers in one of the interviews that

she could not recall that detail when initially interviewed. Two days later, while

Toney and the victim were alone in the house, Toney raped her again on the couch

in the living room. Although the victim testified to a third rape, occurring in her

bedroom, and additional sexual assaults committed by Toney, the indictment only

included two rape charges.
The victim’s mother testified about the victim having rashes and

vaginal discharge while living in Maple Heights, but the victim’s pediatrician never

mentioned that could have been caused by sexual abuse. She also testified to

behavioral changes the victim experienced during that time and after.

The victim first disclosed the abuse when she was 17 years old after

being caught smoking marijuana and having a friend staying in her bedroom

overnight against her mother’s wishes. The victim’s mother said she was going to

call Toney because she believed the victim had a close relationship with Toney, who

would be able to sort through the problems the victim was having. The victim,

according to her trial testimony, broke down and asked her mother to not contact

Toney. Eventually, the mother was told about the abuse that occurred ten years

earlier, and authorities were called.

Also at trial, in addition to the law enforcement officers investigating

the case, the State presented a trauma therapist from the Cleveland Rape Crisis

Center, who testified to the victim’s treatment for posttraumatic stress disorder,

and the forensic interviewer who assessed the victim following the disclosure. The

forensic interviewer appeared at trial remotely over Toney’s objection. The State

argued, without providing any evidence, that the forensic interviewer was in the

process of relocating to Panama a couple days after trial and was in California

taking care of her elderly parents. According to the State, traveling to Cleveland

for the trial was difficult. The trial court permitted the remote testimony because
“the State has demonstrated sufficiently the unavailability of the witness and the

admissibility of the testimony.” Tr. 284:16-19.

Following the convictions and imposition of sentences, Toney

appealed, advancing seven assignments of error. Each will be addressed in turn

but combined when appropriate for the ease of discussion.

In the first assignment of error, Toney claims the trial court erred by

permitting the forensic interviewer to testify remotely at trial. Although we agree,

that error is harmless in light of the overwhelming evidence presented largely

duplicating the forensic interviewer’s testimony.1

The trial court erred by permitting the forensic interviewer to

remotely testify at trial solely based on the State’s unverified claim of inconvenience

because of her personal obligations and professional relocation plans. The law is

settled on this issue:

The Sixth Amendment to the United States Constitution protects the
right of a criminal defendant “to be confronted with the witnesses
against him.” The “primary object” of this provision is to prevent
unchallenged testimony from being used to convict an accused—a
safeguard that applies to both federal and state prosecutions. The
provision encompasses the rights to have a witness physically appear
in the courtroom, to require the witness to testify under oath, and to

1 The Cuyahoga County Public Defender filed an amicus brief; however, the brief

reiterates the constitutional arguments presented by Toney as to the permissibility of
remote trial testimony. The only exception was the public defender’s presentation of an
additional policy consideration. According to the amicus, the “undersigned counsel and
his colleagues have noticed that since the COVID-19 pandemic, trial courts in the
jurisdiction have continued to trend toward lax enforcement of the ‘face to face’
confrontation requirement — something that was not even really countenanced by the
Ohio Supreme Court at the very height of the pandemic.” No cases were provided to
substantiate their belief as to the existence of the claimed trend.
force the witness to be subject to cross-examination. Importantly, it has
been understood to “guarantee[] the defendant a face-to-face meeting
with witnesses appearing before the trier of fact.”

(Internal citations omitted.) State v. Carter, 2024-Ohio-1247, ¶ 27. Although the

face-to-face requirement is not absolute, the requirement is only displaced in limited

circumstances “‘where denial of such confrontation is necessary to further an

important public policy and only where the reliability of the testimony is otherwise

assured.” Id., citing Maryland v. Craig, 497 U.S. 836, 850 (1990). The evidence

being critical to the State’s prosecution is not, in and of itself, a compelling public

policy interest. Id. at ¶ 38. As the Ohio Supreme Court ultimately concluded,

“avoiding travel delays and inconvenience does not constitute a state interest

anywhere near the same magnitude as” those situations in which remote testimony

would be constitutionally permissible. Id. at ¶ 39.

In this case, as in Carter, the State failed to present any verified

statements or testimony establishing that the forensic interviewer could not travel

to appear in person at trial. The State solely relied on arguments it presented to the

trial court.

Further, the trial court’s conclusion that the State “demonstrated

sufficiently the unavailability of the witness and the admissibility of the testimony”

does not meet the standard for permitting remote trial testimony. A witness simply

being “unavailable” does not answer the question of whether the denial of the

defendant’s right to confront a witness in person advances an important public

policy. Permitting the remote testimony in this case was in error.
Notwithstanding, that conclusion does not end the inquiry. The

remaining question is whether the trial court’s error was harmless. Id. at ¶ 46, citing

Delaware v. Van Arsdall, 475 U.S. 673, 674 (1986) (“While we agree that the trial

court’s ruling was contrary to the mandate of the Confrontation Clause of the Sixth

Amendment, we conclude that the Supreme Court of Delaware was wrong when it

declined to consider whether that ruling was harmless in the context of the trial as a

whole.”). Before an error based on the federal constitution can be deemed harmless,

appellate courts must determine whether the error was harmless beyond a

reasonable doubt. Id. at ¶ 47, citing Chapman v. California, 386 U.S. 18, 24 (1967).

In this context, the Ohio Supreme Court held that Confrontation Clause violations

are considered harmless, “when ‘the remaining evidence, standing alone, constitutes

overwhelming proof of [the] defendant’s guilt.’” Id., quoting State v. Hood, 2012-

Ohio-6208, ¶ 43, and State v. Williams, 6 Ohio St.3d 281 (1983), paragraph six of

the syllabus. “Overwhelming proof becomes readily apparent when ‘the allegedly

inadmissible statements * * * at most tend[] to corroborate certain details’ of the

State’s case-in-chief.” Id., quoting Schneble v. Florida, 405 U.S. 427, 431 (1972). If

the evidence is primarily cumulative, the constitutional violation will be deemed

harmless.

In this case, the forensic interviewer’s testimony was by and large

cumulative, if not helpful to Toney in demonstrating inconsistencies in the victim’s

reporting of the crimes to the various individuals after the disclosure. The forensic

interviewer related the victim’s disclosure of the sexual abuse. Inasmuch as the
forensic interviewer provided brief testimony regarding the normalcy of delayed

disclosures based on her experience, though not as an expert on the subject matter,

so too did one of the investigating detectives. Tr. 475-476. Each based their

conclusion on their respective experience in handling hundreds of child-rape cases,

some involving delayed disclosures, with the detective expressly stating that

“because due to circumstances like age, trauma, things like that, people may disclose

different things at different times.” Id. On cross-examination, the detective clarified

that his testimony with respect to delayed disclosures was based on his “training and

experience,” not just the forensic interviewer’s testimony. Tr. 479. Toney has not

addressed the detective’s independent testimony normalizing delayed disclosures in

sexual-assault cases involving young children.

Toney cites three cases to support his claim that the error cannot be

deemed harmless: State v. McGhee, 2017-Ohio-5773 (11th Dist.); State v. Walls,

2018-Ohio-329 (6th Dist.); and State v. Bellamy, 2021-Ohio-40 (5th Dist.). All

three of those cases were based on Crim.R. 16(K) discovery violations, in which the

delayed-disclosure expert testimony was not disclosed to the defendant within 21

days of trial. Based on the violations of the discovery rule, the respective panels

found error and determined that the error was not harmless because the delayed-

disclosure testimony was only provided by that witness, which permitted the jury to

consider the victim’s testimony reliable despite the delay, and the only other

testimony in the case came from the victim. See McGhee at ¶ 21 (noting the State

believed that the testimony was “crucial” to the case); Walls at ¶ 50 (noting the State
believed the testimony was “vital” to the case); Bellamy at ¶ 46. In this case, the

forensic interviewer was not declared an expert and there is no argument that a

discovery violation occurred through the failure to provide a report.

Unlike the cited cases, although the victim’s testimony in this case

was the primary evidence upon which the convictions were based, it was not the sole

evidence. The victim’s family member corroborated portions of the victim’s

recollection regarding Toney’s relationship with the victim and his predilection to

share her bed during the time the family lived at the Maple Heights home. Further,

the testimony intimating the normalcy of a delayed disclosure when the victim is a

young child was duplicated by the detective, such that the jury was free to consider

his testimony even if the forensic interviewer’s testimony was discarded.

Importantly, the detective’s testimony has not been challenged in this appeal, and

therefore, we cannot disregard that testimony for the purposes of the harmless-error

analysis. See State v. Quarterman, 2014-Ohio-4034, ¶ 19, citing State v. Bodyke,

2010-Ohio-2424, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part) (The

parties, not an appellate court, bear the burden of advancing and supporting an

argument with citations to legal authority and facts in the record.).

Accordingly, the first assignment of error is overruled. It bears

repeating that trial courts should not lightly consider permitting remote testimony

in criminal cases in violation of a defendant’s confrontation rights. Mere

inconvenience to the witness or the State is not sufficient to warrant the

extraordinary step of permitting remote trial testimony. Nevertheless, the error in
this case is harmless in light of the duplicative nature of the forensic interviewer’s

testimony.

In addition to the constitutional question, Toney claims that the

forensic interviewer’s remote testimony was in violation of Crim.R. 40 and that she

was not qualified as an expert to render an opinion on the delayed-disclosure topic

under Evid.R. 701, as partially presented in the third assignment of error. In the

fourth assignment of error, Toney claims that his trial counsel was ineffective for

failing to object to the forensic interviewer’s lack of expertise and ability to render

an opinion at trial. Importantly, the second prong of the ineffective-assistance-of-

counsel claim relies on the existence of prejudice to the defendant. State v. Rogers,

2015-Ohio-2459, ¶ 22.

Having already concluded that the admission of the forensic

interviewer’s testimony was in error, the additional reasons for the exclusion of that

testimony are duplicative. Because all of those errors would also be subject to the

same lack of prejudice based on the harmless-error doctrine, the resolution of the

first assignment of error also resolves those arguments.

In the second assignment of error, Toney claims the trial court erred

by “instructing” the venire, after asking the parties to disclose the witnesses they

identified on their witness lists:

Please note that the parties are not required to call all of the witnesses
that they’ve just named to you. The Court requires them that they
advise the Court of any anticipated or even potential witnesses. So
please don’t hold it against the parties if they do not call all of the
witnesses that were named.
Tr. 50. In addition, during the defense’s closing argument, the trial court sustained

an objection when Toney’s trial counsel asked the jury to “draw [their] own

conclusions about why some family’s here and some’s not.” That reference appears

to have been an invitation to speculate as to why the victim’s family members

attended or skipped the trial proceeding.

According to Toney, those two events violated Crim.R. 16(I), which

provides that “[t]he content of the witness list may not be commented upon or

disclosed to the jury by opposing counsel, but during argument, the presence or

absence of the witness may be commented upon.” With respect to the sustained

objection, Toney now claims that he should have been permitted to ask the jury to

infer that Toney’s father’s testimony would not have been favorable to the State. See

State v. Ford, 2019-Ohio-4539, ¶ 309.

The trial court’s statement to the venire was not an instruction, nor

was the witness list disclosed by opposing counsel. It was a preliminary statement

to the venire at the onset of voir dire by the trial court. Toney has not established

that Crim.R. 16(I) is applicable. Most importantly, for the purposes of this appeal,

there was no objection preserved by Toney, so that issue is reviewed only for plain

error, which we decline to apply. See Rogers, 2015-Ohio-2459, ¶ 23 (“But even if an

accused shows that the trial court committed plain error affecting the outcome of

the proceeding, an appellate court is not required to correct it.”).

In addition to that, it is unclear how his statement from closing

argument regarding the victim’s family members’ attendance at trial had anything
to do with the State’s decision to not call Toney’s father as a witness. The closing

argument did not discuss any one witness, and when placed in context, it amounted

to a speculative request for the jury to consider why the victim’s family members

were or were not attending the trial. There is no identified portion of the trial in

which Toney was precluded from commenting on the State’s failure to call a specific

witness with knowledge of the matter. See, e.g., Ford at ¶ 309. The second

assignment of error is overruled.

In the remainder of the third assignment of error, Toney claims that

the mother’s or the therapist’s testimony improperly broached victim-impact

evidence and should have been excluded. According to Toney, the mother’s

testimony regarding the victim being in a car accident, the impact the sexual-abuse

allegations had on her family dynamics, and the additional surgeries the victim went

through were “only designed to appeal to the sympathies of the jurors.” Because no

objection was timely preserved, our review is for plain error.

Under the plain-error standard, the defendant must demonstrate that

“‘but for a plain or obvious error, the outcome of the proceeding would have been

otherwise, and reversal must be necessary to correct a manifest miscarriage of

justice.’” State v. West, 2022-Ohio-1556, ¶ 22, quoting State v. Quarterman, 2014-

Ohio-4034, ¶ 16. Toney solely relies on the argument that permitting the mother to

testify with statements arguably touching on the impact to the victim was error. He

fails to discuss the plain-error standard beyond the conclusory statement that the

error constitutes plain error. “Under that rule, the defendant bears the burden of
demonstrating that a plain error affected his substantial rights.” State v. Perry,

2004-Ohio-297, ¶ 14, citing United States v. Olano, 507 U.S. 725, 734 (1993). In

light of the limited argument presented for our review, we decline the invitation to

apply the plain-error doctrine. See, e.g., State v. Carpenter, 2026-Ohio-116, ¶ 86

(8thDist.) (concluding that even if the error is presumed, the defendant failed to

demonstrate that recognition of the error was required to correct a manifest

miscarriage of justice, and therefore, the argument was overruled). The third

assignment of error is overruled.

In the fifth assignment of error, Toney claims that the cumulative

effect of permitting the forensic interviewer to testify and the error in permitting the

victim-impact testimony requires a new trial even if the individual errors alone

would not.

Under the cumulative-error doctrine, “a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of a fair trial,

even though each of the numerous errors does not individually constitute cause for

reversal.” State v. Neyland, 2014-Ohio-1914, ¶ 257, citing State v. DeMarco, 31 Ohio

St.3d 191 (1987), paragraph two of the syllabus. As the Ohio Supreme Court noted,

the doctrine is not applicable in cases in which none of the errors committed,

whether considered individually or cumulatively, resulted in prejudicial error. Id.

In this case, although it was error to permit the forensic interviewer to testify

remotely, that error was not prejudicial based on the evidence being duplicative of

other testimony properly presented to the jury. The only other potential error was
with the victim-impact evidence, also rejected on plain-error grounds. Those two

issues did not deprive Toney of a fair trial, and because there was no other identified

error upon which the cumulative-error doctrine could be invoked, the fifth

assignment of error is overruled.

In the sixth assignment of error, Toney claims both of his convictions

for rape are against the weight of the evidence.

When evaluating a claim that a verdict is against the manifest weight

of the evidence, appellate courts “review the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of witnesses, and determine

whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way

and created such a manifest miscarriage of justice” and the conviction must be

reversed and a new trial ordered. State v. Wilks, 2018-Ohio-1562, ¶ 168, citing State

v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Reversing a conviction based upon

the weight of the evidence should occur “‘only in the exceptional case in which the

evidence weighs heavily against the conviction.’” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172 (1st Dist. 1983).

Toney claims that the minor inconsistencies in the victim’s retelling

of her version of events and incidents were sufficient to undermine the overall

credibility of the State’s case against him. He claims that the victim’s different

retellings regarding whether she was “bent over” or had her legs raised while on her

back during the rape in the living room, her differing account of whether Toney used

his hands to inappropriately touch her before the rape in her bedroom, the differing
degree to which she recalled the depth of penetration during the rapes, and the

victim’s varying testimony on finding blood following the first rape all give rise to an

unreliable witness.

The fact that the jury believed the State’s evidence and found the

victim’s testimony credible despite the limitations and impeachment of the witness,

is not in and of itself a basis to declare the convictions to be against the weight of the

evidence. It has long been held that the trier of fact is free to believe all, some, or

none of the evidence presented by the State or defense at trial. State v. Smith, 2010-

Ohio-4006, ¶ 16 (8th Dist.). Simply identifying the inconsistencies or avenues of

impeachment, evidence heard and considered by the jury, is not sufficient to meet

the deferential standard to prove the conviction is against the weight of the evidence.

In this case, the victim provided a detailed account of the sexual

abuse. The minor inconsistencies through the numerous documented retellings she

provided the various authorities or health providers, even when coupled with the

timing of her disclosure, being on the heels of being reprimanded by her mother, do

not render her testimony inherently unreliable. We cannot conclude that the trier

of fact lost its way. The sixth assignment of error is overruled.

In the seventh, and final, assignment of error, Toney claims the trial

court improperly considered his silence as the basis for the underlying sentence and

that the record does not support the consecutive-sentence findings because he is

already serving a life sentence. According to Toney, the trial court’s conclusion that
he failed to demonstrate remorse was an implicit reference to Toney’s silence. We

need not resolve that argument.

The sentence imposed on each individual rape offense was the

statutorily mandated minimum. Under R.C. 2971.03(B)(1)(b), when the victim is

less than ten years old the trial court is required to impose a sentence with a

“minimum term of fifteen years and a maximum of life imprisonment.” The trial

court has no discretion to impose a lesser sentence, and therefore, consideration of

the sentencing factors for the individual sentences has no bearing on this case.

Further, the consecutive-sentence findings under R.C. 2929.14(C)(4)

do not require consideration of remorse, so that argument has no relevance to the

consecutive-sentence findings, which Toney has not challenged in this appeal. His

sole claim with respect to the consecutive sentence is that the findings are not

supported by the record because life terms were imposed. According to Toney, life

sentences cannot be imposed consecutively. R.C. 2929.14(C)(4) authorizes the

imposition of consecutive service of all felony sentences, indefinite life terms

included. State v. Eggleton, 2025-Ohio-1186, ¶ 17 (8th Dist.) (“R.C. 2929.14(C) does

not restrict the imposition of consecutive sentences to specific types of felony

crimes.”), citing State v. Wright, 2022-Ohio-1537, ¶ 129; see also, e.g., Montanez v.

May, 2026-Ohio-90, ¶ 17 (dismissing habeas petition because offender’s life

sentence, with a minimum term until parole eligibility, imposed consecutively to a

definite term was a “valid criminal judgment”). The final assignment of error is

overruled.
Toney’s convictions for the rape of a child under the age of ten and

the resulting sentences are affirmed.

It is ordered that appellee recover from appellant 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

common pleas court 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.

---

SEAN C. GALLAGHER, PRESIDING JUDGE

DEENA R. CALABRESE, J., and
EILEEN A. GALLAGHER, J., CONCUR