State v. Green

[Cite as State v. Green, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                   Court of Appeals No. WD-18-029

        Appellee                                Trial Court No. 2017CR0272

v.

Russell David Green                             DECISION AND JUDGMENT

        Appellant                               Decided: March 29, 2019

                                            …

        Paul A. Dobson, Wood County Prosecuting Attorney, David T.
        Harold and James A. Hoppenjans, Assistant Prosecuting Attorneys,
        for appellee.

        Eric Allen Marks, for appellant.

                                            …

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Russell David Green, appeals from the March 28, 2018 judgment

of the Wood County Court of Common Pleas convicting him of sexual battery, a

violation of R.C. 2907.03(A)(5) and (B), and sentencing him to a term of 36 months of

incarceration. For the reasons which follow, we affirm.
       {¶ 2} Appellant appeals asserting the following single assignment of error:

              APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

       ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND

       FOURTEENTH AMENDMENTS TO THE UNITED STATES

       CONSTITUTIONS AND ARTICLE I, SECTION 10 OF THE OHIO

       CONSTITUTION.

       {¶ 3} The following evidence was admitted at trial. The victim testified she first

met appellant when he was dating her mother in 2016 and the victim was 16 years old. A

month later, he moved into the home of the victim’s mother, the victim, and two other

siblings, which was located across the street from the victim’s grandparents, and

contributed to the rent.

       {¶ 4} In the beginning, the victim testified, she would not have characterized

appellant as a father figure because she had a bad relationship with her biological father.

But, over time, she began to think of him as a father figure. She believed appellant

portrayed himself as a father figure by playing video games with her, giving her money,

buying her food and clothing, taking care of household repairs, driving her if her mother

was unavailable, and teaching the victim about things like cars and how to drive. While

she recalled having called appellant “dad” a few times, she generally called him by his

name and acknowledged that in a birthday card she had referred to him as “Bud.”

       {¶ 5} The victim further testified that one night in January 2017, appellant sent her

a text from his bedroom telling about his pornographic dream about her. She became




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upset and went to her grandparent’s home where her sister tried to calm her down. Her

mother came looking for the victim and told her to stay with her grandparents. The

victim believed her mother had a fight with appellant that night. Her mother asked him

to leave, but he refused. The next day, appellant acted like nothing was wrong.

       {¶ 6} After a while, appellant began touching her again, initially starting with

hugging her or rubbing her back. He slapped her bottom once and she told him she did

not like it. They would wrestle until it progressed to him touching her inappropriately.

She would move away from him to make him stop, and he acted like he was not doing it

on purpose. Although appellant had always told her she looked beautiful when she was

dressed up to go out, he started making such comments daily. While appellant’s

suggestive comments disgusted the victim initially, she somehow, over time, felt closer to

him. Appellant bought the victim a new phone and started messaging her and eventually

started a sexual conversation.

       {¶ 7} By March or April 2017, their relationship began to change. Just after the

victim had turned 17 years of age, appellant came home while she was laying on the

couch and started making out with her. He led her into the backroom where he

eventually performed oral sex on her. After the family moved to Perrysburg, Ohio, they

had sex 2-3 times a week while her mother was away. Appellant would leave the house

and return after her mother left. The victim became very obsessed with appellant and

thought she loved him. She promised him she would keep quiet about their relationship

because he convinced the victim her mother would choose appellant over the victim. The




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victim had been close to her mother and did not want to lose her. But, she also kept quiet

because she wanted appellant to marry her.

       {¶ 8} In May 2017, her mother found the victim’s diary which had an entry

regarding her relationship with appellant and saw text messages on the victim’s phone.

Appellant told her mother the victim could not be believed because she was crazy and

had mental issues.

       {¶ 9} Initially, the victim did not want the police involved and denied that she had

been manipulated by appellant because she thought she loved appellant. She admitted

that she told the police the things her mother wanted her to say. However, during an

examination by a Sexual Assault Nurse Examiner (“SANE”), the victim realized she had

been manipulated and brainwashed. Over time, she came to realize she had not really

consented to the sexual activity and that her mother had been right.

       {¶ 10} An officer who was first approached by the mother alone testified the

mother told the officer she believed the daughter had been having a sexual relationship

with appellant, who was like a father to her. The mother indicated appellant had denied

the accusations and accused the victim of being depressed or disturbed. The officer

questioned the mother about appellant’s role in the house and was told he did grocery

shopping, laundry, helped with homework, etc., and if she was not at home, he was in

charge.

       {¶ 11} A second officer interviewed the mother and the victim separately. The

mother told the officer she and her daughter had been living with appellant as a family,




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appellant played a role in discipline, and appellant and her daughter had a father/daughter

relationship even though the mother retained the ultimate right to make decisions

concerning the victim. The officer further testified the mother’s testimony at trial was

inconsistent with what she had told him initially.

       {¶ 12} The victim indicated to the officer she had a good relationship with

appellant and that he helped her with homework and purchased the cell phone for her.

The victim also indicated that except for when appellant was unemployed for health

reasons, he contributed to a joint bank account with her mother. The victim initially

denied the sexual relationship and later indicated she had consented. The officer

explained that she could not have consented if appellant was acting in loco parentis, but

he did not explain the phrase to her. The officer met with the victim a second time to

answer her questions as to why the police were still investigating.

       {¶ 13} The text messages downloaded from the victim’s phone were admitted into

evidence. The officer did not find any messages on appellant’s phone, but the messages

on the victim’s phone were consistent with her statements even though the evidence did

not establish who sent the text messages. The social media messages from the victim’s

account were also admitted into evidence. In three separate social media messages,

appellant referred to the victim as his daughter. The officer did not find any messages

where the victim called appellant “dad” or “father.”

       {¶ 14} The SANE nurse testified she spoke with the mother alone. The mother

stated she had met appellant online and he moved in with her very quickly. She further




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indicated that appellant provided everything for them and was like a father to the victim.

The mother had noticed the victim becoming clingy. The mother also indicated the

victim has Asperger’s Syndrome and ADHD. However, at trial the mother testified that

the victim had been diagnosed with a mild form of Asperger’s Syndrome, but was

expected to grow out of it by late grade school.

       {¶ 15} The nurse spoke to the victim alone and she indicated she initially thought

of appellant like a father and was initially put off by his sexual comments. However, as

he continued to text her, she accepted a sexual relationship with him. The nurse further

testified that she explained to the victim how pedophiles groom children. The nurse

wanted to relieve the victim’s guilt about what happened and explain to her why her

mother was upset with the victim. On cross-examination, the nurse further explained she

had been trained to understand how pedophiles use grooming techniques and that she

counseled the victim to give emotional support because the victim felt guilty for the tense

dynamics between the victim and the mother. On redirect examination, the nurse further

explained what grooming involves.

       {¶ 16} A forensic investigator testified that an analysis of the rape kit samples

indicated appellant as a contributor with a statistic of greater than 1 in 1 trillion.

       {¶ 17} The victim’s mother testified as follows. She and appellant had split up for

a time in 2017, but they reconciled and she is currently engaged to him. When appellant

and the mother first lived together, they had a joint account and paid the bills jointly. She

purchased the victim’s clothing out of the joint account. Appellant’s name was on the




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lease. While the mother consulted with appellant about the victim, the mother believed

she had sole authority over matters concerning the victim. Likewise, the mother testified,

the victim refused to ask appellant’s permission since he was not her father. The mother

never saw appellant exert control over the victim. The victim was not close to her

biological father. Although the mother wanted the victim and appellant to have a

father/daughter relationship, it never developed. The mother believed appellant and the

victim had a great relationship until she found the victim’s diary. The mother explained

that appellant had called the victim his daughter once on social media to encourage her as

she took an exam. However, he never called her his daughter otherwise.

       {¶ 18} When the mother confronted appellant about the diary, he did not deny the

relationship. The mother explained the inconsistency of her statements as stemming from

her later realization that everything was not as it had initially seemed and that the victim

had not been honest. As a result, the mother sent the victim to live with her grandparents.

       {¶ 19} In his sole assignment of error, appellant challenges that his trial counsel

rendered ineffective assistance of counsel under both the Sixth and Fourteenth

Amendments to the United States Constitution and Article I, Section 10, Ohio

Constitution. He presents three alleged errors for our review.

       {¶ 20} Appellant bears the burden of proving that his counsel was ineffective since

an attorney is presumed competent. Strickland v. Washington, 

, 

, 

 (1984), and State v. Clinton, 

, 2017-

. To establish a claim of ineffective assistance of appointed




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counsel under either the United States or Ohio Constitution, the defendant must show that

his counsel’s representation “fell below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” State v.

Bradley, 

, 

 (1989), paragraph two of the syllabus;

.

       {¶ 21} While the reasonableness of the attorney’s conduct must be considered in

light of the facts of each case, reasoned tactical decisions generally cannot form the basis

for a claim of ineffective assistance of counsel. 

; State v. Elmore, 

, 

, 

. Generally, the scope of cross-

examination is considered to be within the scope of debatable trial strategy. Id.; State v.

Spaulding, 

, 

, 

, ¶ 90. The fact that the

strategy is not successful is irrelevant; the deficiency must have resulted in prejudice to

the defendant by an unreliable or fundamentally unfair trial. State v. Carter, 

, 

 (1995).

       {¶ 22} We begin by addressing whether appellant’s trial counsel substantially

violated his duty to represent appellant.

       {¶ 23} Appellant first argues his trial counsel was ineffective because his opening

statements and cross-examination of the victim reveal a defense strategy of admitting a

sexual relationship and contesting whether the victim believed appellant was acting “in

loco parentis.” Appellant asserts, this erroneous strategy caused trial counsel to focus on

the victim’s beliefs rather than the elements the state was required to prove, which was




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whether appellant voluntarily assumed the duties of a parent and supported the child.

Furthermore, appellant asserts that his trial counsel’s cross-examination was based on

assumed facts contrary to appellant’s interests, which actually brought out unsolicited

testimonial evidence supporting the “in loco parentis” element.

       {¶ 24} The elements of sexual battery offense alleged are: “engaging in sexual

conduct with another, not the spouse of the offender when … [t]he offender is the …

person in loco parentis of the other person.” R.C. 2907.03(A)(5). This statute does not

define the element of “in loco parentis” and, therefore, it must be given its common,

ordinary, and usual meaning. State v. Funk, 10th Dist. Franklin No. 05AP-230, 2006-

Ohio-2068, ¶ 55-56. Whether a person stands in loco parentis to a child is a question of

fact the jury must determine. State v. Butler, 3d Dist. Defiance No. 4-11-13, 2012-Ohio-

5022, ¶ 8, quoting State v. Knepley, 3d Dist. Henry No. 7-11-02, 

,

citing State v. Caton, 

, 

 (1st Dist.2000).

       {¶ 25} The Ohio Supreme Court addressed the meaning of “in locos parentis” in

State v. Noggle, 

, 

 (1993), paragraph one of the syllabus

(applying a prior version of the statute), superseded by statute on other grounds as stated

in State v. Mole, 

, 

, 

 (the statute

has been amended several times to expand the coverage to conduct by adults who had

“special authoritative relationships with minors or other vulnerable populations” not

covered by the first six enumerated types of offenders). The Noggle court noted that

“R.C. 2907.03(A)(5) was quite obviously designed to be Ohio’s criminal incest statute,”




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and the General Assembly has indicated its intent to expand the family unit to include

more than biological parents and those with legal parental rights. Id. at 33. The court

reasoned the term includes “a person who has assumed the dominant parental role and is

relied upon by the child for support. … Simply put, the statute applies to the people the

child goes home to.” The court also noted that “[a] person ‘in loco parentis’ was grouped

with guardians and custodians in the statute because they all have similar responsibilities.”

Id.

       {¶ 26} Appellate courts have expanded upon the definition of the term. In State v.

Funk, 10th Dist. Franklin No. 05AP-230, 

, the court held “the

assumption of the in loco parentis relationship is primarily a question of intention, which

is shown by the ‘acts, conduct and declaration of the person [allegedly standing] in that

relationship.’” Id. at ¶ 71 (citations omitted). Support and maintenance are important

indicators of such intent.

       {¶ 27} The Tenth Appellate District has identified ten considerations for

determining whether a person is acting in loco parentis: “(1) the person is charged with a

parent’s rights and responsibilities; (2) the person has assumed the same duties as a

guardian or custodian; (3) the person has assumed a dominant parental role; (4) the child

relies upon the person for support; (5) the child ‘goes home’ to the person; (6) the

person’s relationship with the child is close, supportive, and protective; (7) the person has

the intention of acting as a parent, which is shown by the acts, conduct, and declaration of

the person; (8) the person intentionally assumes the obligations incidental to the parental




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relationship; and (9) the person is the primary caretaker for the child while the biological

parent is absent due to, for example, employment.” State v. Abubakar, 10th Dist.

Franklin No. 11AP-440, 

, ¶ 13.

       {¶ 28} In the case before us, appellant’s trial counsel questioned the victim’s

perception of appellant as a father figure. We reject appellant’s underlying argument that

the victim’s perception of the defendant as a father figure is irrelevant because that

questioning on direct examination brought out testimony describing appellant’s parental-

like conduct. Cross-examination of the victim served to challenge the victim’s credibility

regarding appellant’s conduct and also raised the question of whether appellant’s conduct

was parental or merely typical of someone who merely lives in a household as a

boyfriend of the victim’s parent.

       {¶ 29} Admittedly, trial counsel did not control the victim’s responses on cross-

examination to prevent the victim from making additional statements beneficial to the

prosecution. We also agree that trial counsel’s questions assumed appellant helped

prepare meals and had a joint account with the victim’s mother, which elicited the

victim’s testimony that appellant pitched in with household meals and appellant made

more money than the victim’s mother. However, similar facts were also presented

through the victim’s direct testimony that her mother and appellant shared the rent

payment and household expenses and that appellant had cooked some dinners.

Furthermore, the cross-examination also elicited evidence that benefited appellant, such




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as the fact that the victim had never referred to appellant as “dad” in her texts, social

messages, or in a birthday card.

       {¶ 30} Upon a review of the record, we conclude that trial counsel’s focus on

cross-examination of the victim was a matter of debatable trial strategy and did not

constitute ineffective assistance of counsel.

       {¶ 31} Second, appellant argues his trial counsel rendered ineffective assistance by

failing to prevent the introduction of grooming evidence. Appellant asserts such “other

acts” evidence were irrelevant under Evid.R. 401 because grooming is not an element of

sexual battery. Both appellee and appellant raised the issue of whether appellant

manipulated the victim in their opening statements. Furthermore, defense counsel

inquired further into the issue of “grooming” during the cross-examination of the victim

and the SANE nurse.

       {¶ 32} The issue before us is not plain error, but ineffective assistance. We begin

by determining whether trial counsel breached his duty to appellant by failing to object to

and prevent the admission of grooming evidence in this case.

       {¶ 33} Evidence of “other acts” of the defendant are not admissible at trial for the

purpose of proving the defendant has a character trait and that he acted in the instant case

in conformity with that character trait. Evid.R. 404(B); R.C. 2945.59. However, such

evidence is admissible for a proper purpose, such as proving “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” 

 This rule

is to be strictly construed against admissibility. State v. Conway, 

.


, 

, quoting State v. Broom, 

, 

 (1988), paragraph one of the syllabus.

       {¶ 34} If the “other acts” evidence is alleged to be admissible for the purposes

identified under Evid.R. 404(B) and noted above, the trial court must conduct a three-step

analysis to determine if the “other acts” evidence should be admitted. State v. Williams,

, 

, 

. First, determine

whether the “other acts” evidence makes a fact of consequence more or less probable?

(Evid.R. 401). Second, determine whether the “other acts” evidence is presented for a

legitimate purpose or only to prove the defendant acted in accordance with his character

trait? (Evid.R. 404 (B)). Third, determine whether the “probative value of the other acts

evidence is substantially outweighed by the danger of unfair prejudice.” (Evid.R. 403).

Id. at ¶ 20.

       {¶ 35} The state argues that grooming evidence was relevant in this case as

evidence of appellant’s plan, scheme, motive and/or intent. We disagree. The cases cited

by the state involved the issue of the identity of the perpetrator, which was proven by a

common modus operandi utilized by the defendant regarding other victims. See 

; State v. Horn, 

, 

 (6th Dist.). In the case before

us, the charge is sexual battery and at trial appellant did not deny the sexual relationship

with the victim, but challenged that he was not acting “in loco parentis” to the victim at

the time. The issue of grooming is not, therefore, probative of any fact the state was




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required to prove in this case and its admission served no legitimate purpose for the

prosecution. We discuss prejudice from the admission of the grooming evidence below.

       {¶ 36} As noted above, a particular line of cross-examination can be a debatable

trial strategy. Although it would not be a debatable trial strategy to draw out irrelevant

evidence, the cross-examination in this case regarding the issue of grooming did serve to

challenge the victim’s overall credibility by suggesting she was unduly influenced by the

SANE nurse who had suggested grooming. Therefore, we find the cross-examination

was a debatable trial strategy.

       {¶ 37} Third, appellant contends his defense counsel rendered ineffective

assistance because throughout the trial he failed to control the witnesses to limit their

responses. Appellant points to the cross-examination of the police officer about the

mother’s testimony at trial which conflicted with her earlier statements to him as to the

victim’s credibility. Appellant asserts that in response to the open-ended question, the

officer was permitted to testify that his view of the case had not changed and was based

on the mother’s initial reactions. Appellant asserts trial counsel should have questioned

the mother further so she could have explained her change in testimony.

       {¶ 38} Upon a review of the entire record, we find this cross-examination did not

bring out any new evidence. Furthermore, the cross-examination allowed the mother the

opportunity to explain she changed her opinion after living with the victim for the month

following discovery of the relationship between the victim and appellant. Therefore, we

find trial counsel’s method of cross-examination was a matter of debatable trial strategy.




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       {¶ 39} The second step in the analysis of whether trial counsel rendered

ineffective assistance of counsel is to determine if any violation of the attorney’s duty to

his client resulted in material prejudice to appellant. State v. Holloway, 

, 

 (1988).

       {¶ 40} Upon a review of all of the evidence, we find appellant has failed to

demonstrate such material prejudice. Appellant has failed to show the outcome of the

trial would have been different without the evidence introduced through cross-

examination because the same or similar evidence was also presented through direct

examination of the witnesses.

       {¶ 41} Furthermore, although there were references about manipulation and

testimony was introduced regarding the concept of grooming, the prosecution also

emphasized in its closing arguments that the issue of the victim’s consent to the sexual acts

was irrelevant. The prosecution explained the only issue was whether appellant committed

the acts of sexual battery while in a position of “in loco parentis” to the victim when she

was 16-17 years old. Likewise, the trial court instructed the jury to find the elements of the

charged offense, which did not include the evidence of grooming. See State v. Thomas, 2d

Dist. Montgomery No. 27362, 

. We presume the jury followed the

jury instructions. State v. Ireland, Slip Opinion No. 2017-0344, 

.

       {¶ 42} In this case there was overwhelming evidence of appellant’s parental-like

actions based on the testimony of the victim, her mother’s prior statements, and the

statements the victim made to the nurse and police, as well as appellant’s social media




15.
messages referencing the victim as his daughter. Therefore, we cannot find that the

outcome of the trial would have been different if the consent or grooming issue had not

been raised and evidence relating to the victim’s “consent” to the sexual conduct had

been excluded.

       {¶ 43} Finally, appellant argues the cumulative effect of his trial counsel’s errors

deprived appellant of a fair trial.

       {¶ 44} The doctrine of cumulative error provides that “a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial court

error does not individually constitute cause for reversal.” State v. Garner, 

, 

 (1995), citing State v. DeMarco, 

, 

 (1987), paragraph two of the syllabus. In the case before us, this doctrine is

not applicable because we did not find multiple instances of harmless error.

       {¶ 45} Accordingly, we find appellant’s sole assignment of error not well-taken.

       {¶ 46} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Wood County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                         Judgment affirmed.




16.
                                                               State v. Green
                                                               C.A. No. WD-18-029




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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