[Cite as State v. Howell,
2020-Ohio-821.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-7
:
v. : Trial Court Case No. 2018-CR-669
:
DAKOTA L. HOWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 6th day of March, 2020.
...........
DAVID M. MORRISON, Atty. Reg. No. 0087487, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Defendant-appellant Dakota L. Howell appeals from his conviction for rape.
For the reasons set forth below, we affirm.
I. Facts and Procedural Background
{¶ 2} On October 4, 2017, Fairborn Police Officers Pierre Harris and Jon Matheny
were dispatched to the lobby of the police station to meet with C.B. and her friend, C.N.
C.B. informed the officers that she had been raped on October 1, 2017. She identified
Howell as the perpetrator. The officers took a report and accompanied C.B. to her
apartment, where they collected the clothing she had been wearing at the time of the
offense. They then directed her to a local hospital for an examination.
{¶ 3} Fairborn Police Detective Shane Hartwell was assigned to investigate the
matter. Hartwell met with C.B. Thereafter, he made attempts to contact Howell.
Because Hartwell was unable to locate Howell, he caused a probable cause warrant to
be issued. On August 23, 2018, Howell turned himself in at the Fairborn Police
Department. On that date, Hartwell met Howell in the jail facility and escorted him to an
interview room where an interview was conducted. Following the investigation, Howell
was indicted on one count of rape in violation of R.C. 2907.02(A)(2).
{¶ 4} Howell filed a motion to suppress the statements made to Det. Hartwell
during the interview. A hearing on the motion was conducted on October 11, 2018.
Hartwell testified that as he was escorting Howell to the interview room, Howell stated
that he had been in the process of applying for a job at a store when the manager of the
store informed him that there was an outstanding warrant for his arrest. Hartwell testified
that he placed Howell in the interview room and immediately proceeded to discuss and
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execute a pre-interview form setting forth Howell’s Miranda rights. Hartwell testified that
Howell did not appear to be under the influence of drugs or alcohol, that Howell appeared
to understand his rights, and that no promises or threats were made to cause Howell to
participate in the interview. According to Hartwell, Howell initialed and signed the form,
which was introduced into the record. Hartwell then entered a time of 12:40 p.m. in the
upper right corner of the form and executed his own signature. Hartwell testified that, as
is his normal practice, he filled in the time on the form after Howell executed the form.
Hartwell testified that after writing in the time and signing the form himself, he began to
ask Howell questions. Hartwell testified that Howell indicated he was aware of the nature
of the charge against him and who had made the complaint. Hartwell testified that
Howell also indicated that he and the victim had engaged in consensual sex.
{¶ 5} Hartwell testified that the interview room was equipped with audiovisual
recording equipment which must be turned on by a switch located outside of the room.
Hartwell testified that, after executing the form and hearing the above statements from
Howell, he realized he had forgotten to turn on the recording equipment. Hartwell
testified that he then stepped outside of the room and flipped the switch to the on position.
{¶ 6} The recorded portion of the interview was made part of the record. The
video indicates that the recording began at 12:42 p.m. On the video, Hartwell walked
from the doorway to a table where Howell was seated. A document can be observed on
the table. Hartwell asked Howell whether they had reviewed the form and discussed
Howell’s rights. Howell indicated that they had reviewed and discussed the form and his
rights. Hartwell then asked Howell if he had indicated that he was willing to talk to
Harwell without the presence of a lawyer. Howell stated that he had agreed to the
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interview, but that he no longer wanted to speak to Hartwell. Hartwell reiterated that
Howell had agreed to talk but now did not want to talk. Howell again stated that he no
longer wished to speak to Hartwell. Howell also made several statements thereafter.
{¶ 7} Following the hearing, the trial court overruled the motion to suppress the
statements made to Hartwell prior to the point that Howell asserted his wish to remain
silent, but sustained the motion with regard to the statements made thereafter.
{¶ 8} A jury trial was conducted in January 2019. At that time, C.B. testified that
she and Howell had known each other since they were in the eighth grade. She testified
that they dated for approximately six to seven months beginning in early 2016. C.B.
testified that while they were dating, they engaged in sexual relations. C.B. testified that
she and Howell broke up in August 2016. In October 2016, she began dating T.S., who
she was still dating at the time of the offense.
{¶ 9} C.B. testified that sometime shortly before October 2017, she and C.N. took
food over to Howell’s apartment because they had become aware he was depressed and
had not eaten. C.B. explained her reason for interacting with Howell:
My best friend had died about a month earlier. She had killed herself.
And that’s originally how [Howell] and I had started talking in the first place
because we really didn’t remain that much in contact. It was a bad
breakup. So, we didn’t really talk much afterwards but [our mutual friends
had a] group meeting because [one of them] was still friends with [Howell].
And he had mentioned that he was really sad and he had noticed some of
the same signs that [my best friend] had had before she died. So, we all
kind of started pitching in to make sure that he was okay.”
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Tr. p. 88.
{¶ 10} C.B. testified that on October 1, 2017, she was at work at a local restaurant
when Howell sent her a message asking her to come over to his apartment. C.B. testified
that Howell claimed to be having a hard time and stated he needed to talk to a friend.
C.B. testified she got off work around 8:00 p.m. but she did not leave until T.S., who was
a dishwasher at the same restaurant, was also finished with work. She testified she then
drove T.S. to his residence and informed him she was going over to check on Howell.
{¶ 11} C.B. testified Howell’s apartment was a one-room studio with an attached
bathroom. She testified there were no chairs or couches in the apartment and that the
only places to sit consisted of an exercise machine bench and Howell’s twin-sized bed.
She testified they sat on the bed and began talking. C.B. testified Howell informed her
he had attempted suicide in the recent past. She testified Howell eventually laid down
on the bed and she laid down beside him. C.B. testified that while they were talking she
rolled over onto her stomach in order to check her cellular phone, which was on the floor
next to the bed. C.B. testified that, as she was checking her phone, Howell got on top of
her and tried to pull her leggings down. She testified she “kind of laughed it off at first
[and said] that’s not what’s happening here. That’s not what we’re doing.” Tr. p. 80.
C.B. testified that Howell ignored her and attempted to pull her leggings down again.
She testified she pulled them back up but that Howell then forced the leggings down to
her knees and penetrated her vagina with his penis. C.B. testified that when Howell
stopped and released her, she ran to the bathroom where she vomited. She then
grabbed her purse and ran out of the apartment. She testified that when she entered
her car, she received a text from Howell regarding money he claimed was missing from
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his apartment.
{¶ 12} C.B. testified that she went to her apartment after the incident, and the next
morning she called C.N. When asked why she did not contact the police until October
4, C.B. stated, “I was still trying to process everything that had happened. And we had
just talked about how he was so depressed that he tried to kill himself. And I was worried
that if I said anything that he would. And I didn’t want to be responsible for that.” Tr. p.
87-88.
{¶ 13} Detective Hartwell also testified at trial. During his testimony regarding his
attempts to locate Howell, Hartwell stated, “I looked him up on a law enforcement
information website that provides past residences for people.” Tr. p. 177. Hartwell
testified that the address he obtained was not valid, and he eventually had to seek a
warrant in order to locate Howell. Hartwell testified as to the statements, ruled
admissible, made by Howell during the interview at the police department.
{¶ 14} The State also presented the testimony of Darla Church, a registered nurse
who examined C.B. following the offense. Church testified that she observed no physical
injuries to C.B.
{¶ 15} Howell presented the testimony of Roy Lewis, who stated that he and
Howell were friends. Lewis testified that he had observed Howell’s apartment on
numerous occasions and there were always four to five folding chairs available for sitting.
He also testified he was with Howell when Howell learned of the allegations made by C.B.
and that Howell appeared “shocked” and “kind of flabbergasted.” Tr. p. 236.
{¶ 16} Howell also testified at trial. He stated he had several folding chairs in his
apartment and that he never put them away. He also testified that, on the night of the
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offense, C.B. was wearing a dress when she came to his apartment. Howell testified
that they immediately laid down on the bed and began talking and “cuddling.” Tr. p. 259.
He testified that they engaged in consensual sex and that, afterward, they continued to
talk. Howell testified that C.B. caused him to think she wanted to start dating him again.
He testified that C.B. was “scornful” when he indicated he was not interested in a
relationship and that she left the bed and went to the bathroom for a minute. When she
exited the bathroom, he told her she needed to leave because a friend was coming over
to visit. Howell testified C.B. then “stormed” out of the apartment. Tr. p. 266. He
testified he had no further contact with C.B. until a day or two later when he texted her
about money that was missing from his apartment.
{¶ 17} Howell testified that he later learned a third party had posted a comment on
Facebook regarding C.B.’s accusations against him. Howell testified he was shocked by
the post and that he had not heard anything about the accusation prior to seeing the post.
Howell also testified he had been in the process of applying for a new job when he was
informed by the hiring manager there was an outstanding warrant for his arrest. Howell
testified he asked the manager what the warrant was for, and she told him that it was for
a rape charge.
{¶ 18} Following the trial, the jury convicted Howell of rape as charged. The trial
court sentenced him to a prison term of eight years and designated him a Tier III sex
offender. Howell appeals.
II. Motion to Suppress
{¶ 19} Howell’s first assignment of error states:
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THE TRIAL COURT ERRED IN OVERRULING HOWELL’S MOTION TO
SUPPRESS.
{¶ 20} Howell argues that the trial court should have suppressed the statements
he made to Hartwell because the record does not support a finding they were voluntary.
{¶ 21} “Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372,
797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial
court's findings of fact if they are supported by competent, credible evidence. …
Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.” (Citations omitted.)
Id.
{¶ 22} Howell argues that “[c]oupling together Hartwell’s failure to record the 2-3
minute interaction (during which Howell confessed to consensual sex with [C.B.]) with
Howell’s quick and clear assertion of his Miranda rights on the recording, the
voluntariness of Howell’s confession should be questioned. It should also affect the
credibility of Hartwell’s assertion that Howell make [sic] an incriminating response on the
one hand (unrecorded) but then immediately invoked his rights on the other hand
(recorded).”
{¶ 23} The mere fact that Howell decided to terminate the interview after the
recording equipment was activated does not render any previous admissions involuntary,
nor does it impact Hartwell’s credibility. Hartwell’s testimony regarding Howell’s decision
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to speak to him was actually corroborated by Howell’s acknowledgement, on the
recording, that he had previously agreed to speak to Hartwell without an attorney. The
trial court was aware of Howell’s quick decision to terminate the interview after the
recording was started, and it nevertheless found Hartwell’s testimony about Howell’s
statements credible. The mere fact that a suspect has a change of heart regarding his
decision to speak with law enforcement does not lead to the conclusion that any
statements made prior to that change of heart were involuntary.
{¶ 24} We find nothing on this record to indicate that Howell’s statements to
Hartwell prior to the initiation of the recording were involuntary. There was no evidence
that Hartwell physically or mentally coerced Howell into speaking with him, nor was there
evidence that Hartwell made any threats or promises. As stated, Howell admitted on the
recording that he had agreed to speak to Hartwell. Further, we cannot say Hartwell’s
testimony was inherently incredible. Therefore, we cannot conclude the trial court
abused its discretion by crediting Hartwell’s testimony. Accordingly, the first assignment
of error is overruled.
III. Impeachment
{¶ 25} Howell’s second assignment of error is as follows:
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
QUESTION HOWELL ABOUT PRIOR ALLEGATIONS OF ALLEGED
SEXUAL MISCONDUCT.
{¶ 26} Howell argues that the trial court erred when it permitted the State to ask
him whether he was aware of any prior accusations of sexual misconduct raised by
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women other than C.B. In support, he argues the rape shield statute, R.C. 2907.02,
prohibited such questioning.
{¶ 27} During trial, Howell testified he was informed a background check had
revealed an outstanding warrant. Howell also testified that the manager informed him
the warrant was for rape. At that point, defense counsel asked, “[d]id you have a pretty
good idea, once you heard that, what it was probably about?” Tr. p. 276. Howell
answered, “Oh yeah, like the only person that had ever made allegations like that towards
me was [C.B.], so.” Id. Defense counsel and the prosecutor then approached the
bench where the State argued that Howell had opened the door to impeachment
evidence. Specifically, the State claimed a witness, Grey Gaddis, would testify that,
sometime after C.B. made her allegations, he had confronted Howell concerning reports
that Howell had engaged in inappropriate sexual conduct with other women.
{¶ 28} It appears that the matter was further discussed in chambers during the jury
lunch break and that the trial court concluded the State could question Howell as to his
statement. The in-chambers discussion is not a part of the record before us, but it is
clear from the record that, at the very least, the trial court and the parties agreed upon
and drafted a limiting instruction for the jury. Thereafter, during cross-examination,
Howell admitted to a confrontation during which Gaddis made a claim that other women
had made allegations of inappropriate sexual behavior against Howell.
{¶ 29} Howell is correct that, as a general rule, in a prosecution for rape in violation
of R.C. 2907.02, “[e]vidence of specific instances of the defendant's sexual activity,
opinion evidence of the defendant's sexual activity, and reputation evidence of the
defendant's sexual activity shall not be” admissible except under limited circumstances
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not relevant to this case. R.C. 2907.02(D). However, this court has held that a
defendant waives this statutory prohibition when he or she interjects, or “opens the door”
to, the issue of prior sexual activity into the case. State v. Seymour, 2d Dist. Montgomery
No. 14324, 1994 WL 660763, *4. See also State v. Bozeman, 12th Dist. Butler No.
CA2008-10-248,
2009-Ohio-3677, ¶ 48-49; State v. Banks,
71 Ohio App.3d 214, 220,
593
N.E.2d 346 (3rd Dist.1991); State v. Gauntt, 8th Dist. Cuyahoga No. 63792,
1993 WL
389470, *4.
{¶ 30} Trial courts have discretion over the admission or exclusion of evidence,
and we review the court's decision for an abuse of discretion. State v. Sage, 31 Ohio
St.3d 173,
510 N.E.2d 343 (1987), paragraph two of the syllabus. “A trial court abuses
its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.
An abuse of discretion includes a situation in which a trial court did not engage in a ‘sound
reasoning process.’ Abuse-of-discretion review is deferential and does not permit an
appellate court to simply substitute its judgment for that of the trial court.” (Citations
omitted.) State v. Darmond,
135 Ohio St.3d 343,
2013-Ohio-966,
986 N.E.2d 971, ¶ 34.
{¶ 31} Since Howell made a broad statement that directly denied facts known to
him and the State, we agree he opened the door to the State’s attempt to impeach his
credibility. We note the State did not assert there actually were other instances of such
misconduct, and the State did not further pursue the matter with a rebuttal witness.
Further, during re-direct, it was made clear to the jury that Howell had never been
questioned by law enforcement regarding other such crimes and that he had not been
arrested for, or convicted of, any other such crimes. Additionally, as discussed below, a
limiting instruction was given informing the jury the evidence was to be considered solely
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for the purpose of assessing Howell’s credibility.
{¶ 32} Based upon this record, we cannot conclude the trial court abused its
discretion by permitting the impeachment testimony. Accordingly, the second
assignment of error is overruled.
IV. Limiting Instruction
{¶ 33} The third assignment of error asserted by Howell states:
HOWELL’S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE
TRIAL COURT FAILED TO GIVE A PROPER LIMITING INSTRUCTION
REGARDING THE PAST, PRIOR ALLEGATIONS OF SEXUAL
MISCONDUCT.
{¶ 34} Howell claims that the limiting instruction given regarding the State’s
attempt to impeach him, outlined above, was incorrect. Specifically, he argues that when
evidence suggests a defendant committed other criminal acts, the jury should be
instructed that those acts cannot be considered as proof that the defendant committed
the crime charged. He further claims the limiting instruction that was given was untimely.
{¶ 35} We first note that the parties agreed to the limiting instruction given by the
court and that counsel did not object to the timing of the instruction. Thus, Howell has
waived all but plain error. In order to find plain error there must be an obvious error and
a determination that the error was prejudicial. State v. Payne, 114 Ohio St.3d 502, 2007-
Ohio-4642,
873 N.E.2d 306, ¶ 16. The Supreme Court of Ohio has stressed that “[n]otice
of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
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Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The party
asserting plain error has the burden of proving it, and courts may reverse on this basis
only if the “outcome ‘would have been different absent the error.’ ”
Payne at ¶ 17, quoting
State v. Hill,
92 Ohio St.3d 191, 203,
749 N.E.2d 274 (2001).
{¶ 36} The trial court gave the jury the following agreed limiting instruction:
Ladies and gentlemen, you have heard testimony that Defendant, Dakota
Howell, was aware of other allegations against him of inappropriate sexual
behavior towards other women. This testimony is only to be considered by
you to assist you in determining the credibility of Defendant, Dakota Howell.
It is not to be considered by you for any other purpose.
Tr. p. 312.
{¶ 37} The instruction is similar to the following instruction set forth in Ohio Jury
Instructions (OJI) regarding credibility and other acts:
CREDIBILITY: OTHER ACTS. The court points out that (on direct
examination the witness denied that ...) (... on cross-examination the
witness volunteered that ...). This statement was not directly related to any
issue in this case and the same is true of the answer to the present question;
however, the answer is permitted solely for the purpose of helping you to
test the credibility or weight to be given his testimony as a witness and for
no other purpose.
2 Ohio Jury Instructions CR Section 401.23.
{¶ 38} The comments to the instruction state, in pertinent part:
This instruction is designed to be given before the witness is permitted to
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answer. The instruction applies to the rare situation where the witness
opens the door and invites questioning on an otherwise immaterial fact.
{¶ 39} Howell has not cited an alternate jury instruction that should have been
utilized in lieu of the one presented. Further, although a fine distinction, the evidence
adduced by the State did not demonstrate that Howell had committed other offenses or
bad acts; instead, it was designed to demonstrate that Gaddis had confronted him and
claimed that other women had made allegations. The State did not present Gaddis in
rebuttal, nor did it offer any witnesses to attest to such behavior. Thus, Howell has failed
to demonstrate the need for a statement that the evidence should not be considered as
proof that he committed the crime of rape. The instruction given by the trial court was
consistent with the instruction used when a party is permitted to impeach a witness’s
credibility. The instruction properly informed the jury that the evidence could only be
used for determining Howell’s credibility and for no other purpose. We must presume
that a jury follows the instructions that a trial court issues. Pang v. Minch, 53 Ohio St.3d
186, 195,
559 N.E.2d 1313 (1990). We find no error in the instruction given by the trial
court.
{¶ 40} While Howell is correct that the instruction was designed to be presented to
the jury prior to permitting the witness to answer a question designed to impeach his
credibility, we cannot discern any prejudice stemming from the fact that the trial court
issued the instruction following Howell’s testimony.
{¶ 41} The third assignment of error is overruled.
V. Sufficiency and Manifest Weight of the Evidence
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{¶ 42} Howell’s fourth assignment of error provides:
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 43} In this assignment of error, Howell challenges both the weight and the
sufficiency of the evidence by arguing that C.B. was not credible and that there was no
physical evidence to corroborate her testimony.
{¶ 44} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins,
78 Ohio St.3d 380,
678
N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks,
61 Ohio
St.3d 259,
574 N.E.2d 492 (1991), which states that:
An appellate court's function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.
(Citation omitted). Id. at paragraph two of the syllabus.
{¶ 45} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating whether
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a conviction is against the manifest weight of the evidence, the appellate court must
review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, 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 that the
conviction must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State
v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). A judgment should
be reversed as being against the manifest weight of the evidence “only in the exceptional
case in which the evidence weighs heavily against the conviction.” (Citations omitted.)
Martin at 175.
{¶ 46} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-
881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush,
2017-Ohio-696,
85 N.E.3d 501,
¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight
of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.)
State v. Braxton, 10th Dist. Franklin No. 04AP-725,
2005-Ohio-2198, ¶ 15.
{¶ 47} Howell was convicted of rape in violation of R.C. 2907.02(A)(2), which
provides that “[n]o person shall engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force.” “Sexual
conduct” includes “vaginal intercourse between a male and female.” R.C. 2907.01(A).
There is no dispute that Howell and C.B. had vaginal intercourse, as Howell admitted to
the act when he stated the two engaged in consensual sex. There is also evidence upon
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which the jury could have reasonably concluded that Howell exerted force to compel C.B.
to submit. Specifically, C.B. testified she was lying on her stomach and that Howell got
on top of her when he “forcefully” pulled down her leggings and penetrated her vagina
with his penis. Tr. p. 80.
{¶ 48} Howell claims C.B.’s testimony was not credible because she made
contradictory statements about the offense. He also claims she was not credible
because she testified there were no chairs in Howell’s apartment. Finally, he claims that
C.B. was inherently incredible because she delayed reporting the offense and because
she and Howell had a past history of sexual relations.
{¶ 49} We note the jury was made aware of all of the statements which Howell
argues were contradictory. We also note that C.B. was given the opportunity to explain
any perceived inconsistencies. The jury was also aware of her testimony regarding the
chairs in the apartment and was able to contrast that with the testimony of others that
there were folding chairs in the apartment. Likewise, the jury heard evidence regarding
the past relationship between C.B. and Howell as well as the delay in reporting the
offense.
{¶ 50} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of fact to resolve. State v. Hammad, 2d Dist. Montgomery No.
26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass,
10 Ohio St.2d 230, 231,
227 N.E.2d
212 (1967). Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,
1997 WL
476684, *4 (Aug. 22, 1997). “This court will not substitute its judgment for that of the trier
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of fact on the issue of witness credibility unless it is patently apparent that the trier of fact
lost its way.” State v. Bradley, 2d Dist. Champaign No. 97 CA 03, 1997 WL 691510, *4
(Oct. 24, 1997).
{¶ 51} The jury heard all of Howell’s claimed inconsistences and contradictions
and still chose to credit C.B.’s testimony. As stated, C.B.’s testimony sets forth a
sufficient basis for concluding that Howell committed the offense of rape.
{¶ 52} Finally, with regard to physical evidence, it is well established that physical
evidence is not required to support a conviction for rape against a manifest weight
challenge. State v. West, 10th Dist. Franklin No. 06AP-11, 2006-Ohio-6259, ¶ 18; State
v. Thomas,
2015-Ohio-5247,
54 N.E.3d 732, ¶ 31 (9th Dist.); State v. White, 3d Dist.
Seneca No. 13-16-21,
2017-Ohio-1488, ¶ 54; State v. Williams,
2017-Ohio-8898,
101
N.E.3d 547, ¶ 19 (1st Dist.). Accordingly, the fact that Howell’s conviction was based
solely on C.B.'s testimony and not any physical evidence does not render his conviction
against the manifest weight of the evidence.
{¶ 53} We cannot say Howell’s conviction was against the manifest weight of the
evidence and thus, we must also conclude there was sufficient evidence to sustain the
conviction.
{¶ 54} The fourth assignment of error is overruled.
VI. Law Enforcement Website
{¶ 55} Howell asserts the following for his fifth assignment of error:
HOWELL WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN DETECTIVE
HARTWELL TESTIFIED ABOUT RETRIEVING HOWELL’S ADDRESS
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OFF A “LAW ENFORCEMENT INFORMATION WEBSITE.”
{¶ 56} Howell contends he was unfairly prejudiced when Hartwell testified he used
a law enforcement information website when attempting to locate Howell.
{¶ 57} As noted above, during his testimony about his attempts to locate Howell,
Hartwell stated, “I looked him up on a law enforcement information website that provides
past residences for people.” Tr. p. 177. No objection was made. Thus, our review is
limited to a plain error analysis.
{¶ 58} We note that Hartwell made only the one mention of the website during his
testimony. The statement solely concerned Hartwell’s attempts to locate Howell during
the investigation. Hartwell’s attempts at contact were relevant to the case because,
throughout the trial, Howell focused on Hartwell’s alleged failure to timely contact him
regarding the offense. Further, Hartwell did not assert the site was used solely to search
for persons who had criminal records or arrests. Indeed, his testimony could have been
construed as merely indicating there was a law enforcement website that could be used
for locating addresses of anyone. Finally, Ohio law has generally held that testimony
concerning police investigations is admissible at trial. See State v. Bailey, 8th Dist.
Cuyahoga No. 81498, 2003-Ohio-1834, ¶ 27-29.
{¶ 59} We cannot find error, let alone plain error, on this record. Therefore, the
fifth assignment of error is overruled.
VII. Ineffective Assistance of Counsel
{¶ 60} Howell’s sixth assignment of error states:
HOWELL WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
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AT TRIAL.
{¶ 61} Howell contends that his trial counsel was ineffective because he failed to
(1) properly cross-examine C.B.; (2) request the proper limiting instruction concerning the
admission of prior allegations of sexual misconduct; and (3) object to Hartwell’s testimony
regarding the fact that he used a law enforcement website to obtain Howell’s address.
{¶ 62} “Reversal of a conviction for ineffective assistance of counsel requires that
the defendant show first that counsel's performance was deficient and second that the
deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.”
State v. Dean, 146 Ohio St.3d 106,
2015-Ohio-4347,
54 N.E.3d 80, ¶ 74, citing Strickland
v. Washington,
466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). To establish
deficient performance, a defendant must show that trial counsel's performance fell below
an objective standard of reasonable representation.
Strickland at 688. To establish
prejudice, a defendant must show there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. State v.
Hale,
119 Ohio St.3d 118,
2008-Ohio-3426,
892 N.E.2d 864, ¶ 204, citing
Strickland at
687-688, 694. The failure to make a showing of either deficient performance or prejudice
defeats a claim of ineffective assistance of counsel.
Strickland at 697. In our review of
an ineffective assistance of counsel claim, “we will not second-guess trial strategy
decisions, and ‘a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.’ ” State v. English, 2d Dist.
Montgomery No. 26337,
2015-Ohio-1665, ¶ 10, quoting State v. Mason,
82 Ohio St.3d
144, 157-158,
694 N.E.2d 932 (1998). “Debatable strategic and tactical decisions may
not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it
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looks as if a better strategy had been available.” Id., citing State v. Cook,
65 Ohio St.3d
516, 524,
605 N.E.2d 70 (1992).
{¶ 63} We first turn to the claim that trial counsel failed to conduct an adequate
cross-examination of C.B. Specifically, Howell claims that C.B.’s testimony contradicted
statements she made to Hartwell during the investigation of the offense. Thus, Howell
contends that trial counsel should have played the recording that Hartwell made of those
statements. He contends that “the failure to play the recording in front of the jury affected
the impact [of the impeachment because C.B.’s] own voice impeaching herself would
have impacted [her] credibility highly.”
{¶ 64} This recording is not a part of the record before us, thus we cannot
determine whether it would have had a greater impact on the jury than merely confronting
C.B. about the alleged inconsistencies. Further, it is entirely possible that the recording
contained other information that counsel did not want presented to the jury. In any event,
the jury was made fully aware of the alleged inconsistencies between C.B.’s testimony
and the statements made to Hartwell. Thus, we cannot say on this record that counsel
was deficient in this regard.
{¶ 65} We next turn to the claim that counsel failed to request a proper limiting
instruction regarding the allegations of sexual misconduct involving other women. Given
our disposition of the third assignment of error, we conclude that counsel’s conduct did
not fall below an objective standard of reasonableness.
{¶ 66} Finally, we turn to the claim that counsel was ineffective because he failed
to object when Hartwell mentioned his utilization of a law enforcement website. We note
that Hartwell did not state the site was limited to individuals with criminal records or
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arrests. Indeed, it is possible that the jurors, based on this statement, believed that law
enforcement has a website that permits the police to look up past residences for anyone.
Also, Hartwell made only one brief mention of the site during his more than 40-page
testimony. Importantly, it is entirely possible that trial counsel made a strategic decision
to forego an objection because he did not wish to emphasize the statement by objecting
or seeking a limiting instruction. Thus, we cannot say that counsel acted unreasonably
by failing to object.
{¶ 67} On this record, we cannot conclude trial counsel’s performance fell below
an objective standard of reasonableness. Therefore, we conclude Howell has failed to
demonstrate that counsel was ineffective. Accordingly, the sixth assignment of error is
overruled.
VII. Conclusion
{¶ 68} All of Howell’s assignments of error being overruled, the judgment of the
trial court is affirmed.
.............
FROELICH, J., concurs.
DONOVAN, J., dissents:
{¶ 69} I dissent. The courts of this State have long recognized that evidence of
other acts evidence “carries the potential for the most virulent kind of prejudice for an
accused ….” State v. Snowden, 49 Ohio App.2d 7, 8,
359 N.E.2d 87 (1st Dist.1976).
{¶ 70} In my view, the trial court erred when it permitted the State to question
Howell about a hearsay statement which suggested there were other unspecified
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allegations of sexual misconduct. These purported allegations were not attested to by
the purported victims and/or anyone who allegedly witnessed the misconduct. The
prosecuting attorney, by means of innuendo and suggestion of unidentified general
sexual misconduct, was permitted to lead the jury to believe that the defendant should be
found guilty of rape because of other non-specific purported allegations. Under the
standard used in this case by the majority, “almost any positive comment a defendant
could make about himself or herself would open the door to every possible or even
speculative misdeed he or she ever committed or was even alleged to have committed.”
State v. Jalowiec, 91 Ohio St.3d 220, 244,
744 N.E.2d 163 (2001). (Lundberg Stratton,
J., concurring in part and dissenting in part). Howell’s initial statement ostensibly did no
more than suggest no other complaint led to a rape warrant. A “door opening”
interrogation is not without its limits, and the State overstepped herein. “If the basis upon
which other act evidence is inadmissible under R.C. 2945.59 and Evid.R. 404(B) is
interpreted too loosely, there is no limit to what other acts evidence is admissible.” State
v. Clemons,
94 Ohio App.3d 701, 711,
641 N.E.2d 778 (12th Dist. 1994).
{¶ 71} As was noted in State v. Richardson, 8th Dist. Cuyahoga No. 50424, 1986
WL 5124, *2 (May 1, 1986), we should recognize “a limited privilege to elicit complete and
accurate information, once the party opponent has irrefutably ‘opened the door.’ ” This
is not what was permitted here. Rather, only unspecified hearsay allegations were
suggested. “ ‘This concept of “opening the door” or “invited error” has been widely used
to justify ignoring rules of evidence.’ ” Id. at *3, quoting 1 Weinstein, Evidence (1985)
103-15 to 103-16, Section 103[02]. Evid.R. 608(B) allows, in the trial court’s discretion,
inquiry on cross-examination of specific instances of a witness’s conduct to attack the
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witness’s character for truthfulness or untruthfulness. No specific instance was
identified, and the State did not even investigate Gaddis’s accusation in an attempt to
verify the unspecified allegations.
{¶ 72} It is well established that when a defendant in a rape case opens the door
by referencing his or her character or past behavior – regardless of whether this behavior
was sexual activity or other acts – the prosecution “may call as rebuttal witness[es]
individuals who have observed a defendant engage in acts that were inconsistent with his
assertions.” State v. Hardie, 2d Dist. Montgomery No. 19954, 2004-Ohio-6783, ¶ 21,
citing State v. Agner,
135 Ohio App.3d 286, 293,
733 N.E. 2d 676 (3d Dist. 1999); State
v. Banks,
71 Ohio App.3d 214, 219-220,
593 N.E.2d 346 (3d Dist.1991). See also Holt v.
State,
107 Ohio St. 307,
140 N.E. 349 (1923); State v. Howton, 3d Dist. Allen No. 1-16-
35,
2017-Ohio-4349, ¶ 29. However, this is not what the trial court permitted in Howell’s
case. Witnesses to sexual misconduct and/or victims thereof were not called nor
interviewed. Rather, a wholly non-specific hearsay assertion was improperly utilized to
impugn Howell’s character and imply he was a serial rapist. This vague and hearsay
“propensity evidence” was highly prejudicial to Howell.
{¶ 73} I would reverse.
Copies sent to:
David M. Morrison
Lucas W. Wilder
Hon. Michael A. Buckwalter
