[Cite as State v. O.E.P.-T.,
2023-Ohio-2035.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 21AP-500
(C.P.C. No. 18CR-5540)
v. :
(REGULAR CALENDAR)
[O.E.P.-T.], :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 20, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and
Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: L. Scott Petroff, for appellant. Argued: L. Scott
Petroff.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Defendant-appellant, O.E.P.-T., appeals from the September 7, 2021
judgment of the Franklin County Court of Common Pleas convicting him, pursuant to a jury
verdict, of 9 felony sex offenses involving a minor, and sentencing him to 50 years to life
imprisonment. For the following reasons, we affirm the trial court’s judgment.
I. PROCEDURAL BACKGROUND
{¶ 2} In November 2018, a Franklin County Grand Jury returned a 13-count
indictment charging appellant with 3 counts of rape (2 counts pertaining to a child under
10, 1 count pertaining to a child under 13), 1 count of attempted rape, 6 counts of sexual
battery, and 3 counts of unlawful sexual conduct with a minor. (Nov. 8, 2018 Indictment.)
No. 21AP-500 2
All offenses involved appellant’s minor stepdaughter, R.S., within 6 different timeframes
between 2012 and 2018.
{¶ 3} Following a 5-day trial, a jury found appellant guilty of Counts 5 through 13
and not guilty of Counts 1 through 4. (Tr. Vol. IV at 635-42.)
{¶ 4} At the September 7, 2021 sentencing hearing, the trial court merged Count 6
with Count 5, Count 8 with Count 7, Count 10 with Count 9, and Count 13 with Count 12.
(Sept. 7, 2021 Sent. Tr. at 5-6, 16-19; Sept. 7, 2021 Jgmt. Entry.) In addition to counsel, R.S.,
R.S.’s mother (“A.C.”), and appellant addressed the trial court before the sentence was
imposed. After merging the counts, the trial court sentenced appellant as follows:
• Count 5 – Rape with child under the age of 10 specification, in violation of R.C.
2907.02(A)(1)(b), a felony of the first degree: Mandatory 15 years to life
imprisonment.
• Count 7 – Rape with child under the age of 10 specification, in violation of R.C.
2907.02(A)(1)(b), a felony of the first degree: Mandatory 15 years to life
imprisonment.
• Count 9 – Rape with child under the age of 13 specification, in violation of R.C.
2907.02(A)(1)(b), a felony of the first degree: Mandatory 10 years to life
imprisonment.
• Count 11 – Attempted rape, in violation of R.C. 2923.02(A), a felony of the first
degree: Mandatory 5 years to life imprisonment.
• Count 12 – Sexual battery, in violation of R.C. 2907.03(A)(5), a felony of the
third degree: Non-mandatory 5 years imprisonment.
(Sent. Tr. at 16-17; Sept. 7, 2021 Jgmt. Entry.)
{¶ 5} The trial court then made statutory findings relating to the necessity of
consecutive prison sentences and ordered appellant to serve the prison sentences
consecutively, for an aggregate sentence of 50 years to life imprisonment. (Sent. Tr. at 18.)
{¶ 6} Appellant timely appealed and asserts the following seven assignments of
error for our review:
[I.] THE CUMULATIVE EFFECT OF THE STATE’S FAILURE
TO PROVIDE CERTAIN DISCOVERABLE EVIDENCE
RESULTED IN A VIOLATION [OF APPELLANT’S] RIGHT
TO DUE PROCESS AS REQUIRED BY THE UNITED STATES
AND OHIO CONSTITUTIONS.
No. 21AP-500 3
[II.] THE COURT WRONGLY DENIED THE JURY
INSTRUCTIONS OFFERED BY [APPELLANT] AND FAILED
TO PROPERLY INSTRUCT THE JURY ABOUT
UNDISCLOSED EVIDENCE WHEN THAT EVIDENCE WAS
IN THE POSSESSION OF STATE AGENTS.
[III.] [APPELLANT] SUFFERED PREJUDICE DUE TO THE
INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION
OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE OHIO CONSTITUTION AND THE UNITED STATES
CONSTITUTION, BASED UPON THE CUMULATIVE
IMPACT OF TRIAL COUNSELS’ FAILURE TO OBJECT TO
INADMISSIBLE AND PREJUDICIAL OTHER ACTS
EVIDENCE, FAILURE TO REQUEST AN OTHER ACTS
INSTRUCTION, AND FAILURE TO OBJECT TO THE
INTRODUCTION OF THE ENTIRE NATIONWIDE REPORT
THAT ESSENTIALLY “DOCTOR WASHED” THE
OTHERWISE UNRELIABLE TESTIMONY OF THE
ALLEGED VICTIM.
[IV.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
[APPELLANT] BY IMPROPERLY SENTENCING HIM TO
CONSECUTIVE PRISON TERMS.
[V.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
[APPELLANT] BY IMPROPERLY SENTENCING HIM TO
THE MAXIMUM AVAILABLE PRISON TERM.
[VI.] THE CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF
[APPELLANT’S] RIGHT TO DUE PROCESS AS
GUARANTEED BY THE OHIO CONSTITUTION AND THE
UNITED STATES CONSTITUTION.
[VII.] THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE CONVICTIONS OF [APPELLANT] IN
VIOLATION OF DUE PROCESS AS GUARANTEED BY THE
OHIO CONSTITUTION AND THE UNITED STATES
CONSTITUTION.
II. FACTUAL OVERVIEW
{¶ 7} Appellant’s jury trial commenced in August 2021, at which time the following
facts were established.
No. 21AP-500 4
{¶ 8} Appellant came into R.S.’s life in 2011 when he met, began dating, moved in
with, and married her mother, A.C. (Tr. Vol. II at 217-19, 287-88; Tr. Vol. III at 482-84.) At
that time, R.S. (born in 2004) was six or seven years old (Tr. Vol. II at 214, 217-19; Tr. Vol.
III at 484) and her biological father had recently left the family’s home (Tr. Vol. II at 250).
After she turned nine, R.S. stopped seeing or communicating with her biological father. (Tr.
Vol. II at 250.) Thereafter, R.S. looked to appellant as the father figure in her life and
referred to him as “Dad.” (Tr. Vol. II at 217, 256.)
{¶ 9} R.S. testified that appellant began sexually abusing her on a regular basis
around 2012/2013 and did not stop until August 2018, when she was 14 years old and
reported the abuse to police. (See Tr. Vol. II at 214-49.)
{¶ 10} R.S. testified that the “entire reason” for her delayed disclosure was her
concern that her two younger sisters—twin girls born to A.C. and appellant in May 2012—
would grow up without a father in their lives. (Tr. Vol. II at 249-50, 286-88; Tr. Vol. III at
484.) This concern carried great weight with R.S. because of her own father’s absence from
her life. (Tr. Vol. II at 249-50, 283.) R.S. also testified that she had a distant relationship
with A.C. and older siblings at the time of the abuse, which also contributed to her delayed
reporting. (Tr. Vol. II at 249-51, 279-80, 283-85, 321-22, 324; Tr. Vol. III at 359-60.)
{¶ 11} Nonetheless, on August 7, 2018, R.S. reported these incidents to law
enforcement. (Tr. Vol. II at 217, 253-54, 262-63, 293; Tr. Vol. III at 364-65.) Although R.S.
said she “was afraid that if it continued, [she would] end up dead or something,” she did
not say she was fearful appellant would harm her. (Tr. Vol. II at 249.) In fact, the record
suggests these remarks pertained to R.S.’s reported history of self-harm behaviors and
frequent suicidal ideations, including as recently as two days before reporting the abuse to
police. (See, e.g., Tr. Vol. III at 393-94; Trial Ex. B at 10-11.)
{¶ 12} In August 2018, R.S.’s sister (age 20), brother (age 17), and twin half-sisters
(age 6)—along with a family friend (age 22)—were living in the home with R.S., A.C., and
appellant. (Tr. Vol. II at 248, 259-60, 320, 324-25.)
{¶ 13} By 2018, R.S. was already familiar with the investigatory process associated
with these types of allegations. This is because, in 2014, R.S. reported to appellant that his
son—who had been living with the family since 2012—was sexually abusing her. (Tr. Vol. II
at 266-71, 283-84, 288-92; Tr. Vol. III at 490, 509.) These allegations were reported to law
No. 21AP-500 5
enforcement, investigated, and resulted in criminal convictions. (Tr. Vol. III at 456. See also
Trial Ex. B at 18.) After she made this disclosure, R.S. began counseling. (Tr. Vol. II at 271-
72.) Evidence and testimony presented at trial indicated the timeframe of alleged abuse by
appellant (2012-2018) overlapped, in part, with the timeframe of abuse by appellant’s son.
(See Tr. Vol. III at 374, 479.)
A. R.S.’s allegations against appellant
{¶ 14} At trial, R.S. described sexual conduct that occurred during six distinct time
periods over the course of seven years. She explained that she engaged in sexual acts with
appellant because of his authoritative role as her stepfather. (See Tr. Vol. II at 227, 237-40.)
She did what she was told because she believed she did not have a choice. (Tr. Vol. II at
240.) She described capitulating to sexual encounters with appellant because he threatened
to take away (or to give back) items that were important to her. (Tr. Vol. II at 227, 237-38.)
R.S. testified that if she refused to engage in sexual conduct with him, appellant used
“insults or pure force.” (Tr. Vol. II at 237-38.)
1. June 10, 2012 to June 9, 2013
{¶ 15} The first incident occurred in 2012 at the family’s Whitehall residence when
R.S. was seven or eight years old. (See Tr. Vol. II at 219, 274-75. See also Tr. Vol. II at 289-
90.) R.S. testified that appellant took her into a closet in his bedroom, directed her to get
on her knees and open her mouth, and put his penis inside of her mouth. (Tr. Vol. II at 219-
22.) He portrayed the encounter to R.S. as a game. (Tr. Vol. II at 220.) R.S. testified this
happened multiple times at the Whitehall residence. (Tr. Vol. II at 220-21.) She also
described being told by appellant to swallow when he ejaculated in her mouth. (Tr. Vol. II
at 222.) These allegations formed the factual basis for the rape and sexual battery offenses
charged in Counts 5 and 6.
2. June 10, 2013 to June 9, 2014
{¶ 16} The family moved to “Bar Harbor” in October 2012, when R.S. was eight years
old. (See Tr. Vol. II at 222-23, 276-77, 290.) R.S. testified that appellant continued making
her perform oral sex on him and he began performing oral sex on R.S. in the bed he shared
with A.C. (See Tr. Vol. II at 222-26.) R.S. also described occasions where appellant asked
her to “wake him up [the next morning] by sitting on his face.” (Tr. Vol. II at 226-28.) R.S.
testified that appellant then pretended she was her mother and called R.S. by her mother’s
No. 21AP-500 6
name. (Tr. Vol. II at 228-29.) According to R.S., these types of sexual encounters happened
multiple times at the Bar Harbor home. (Tr. Vol. II at 224-26.) These allegations formed
the factual basis for the rape and sexual battery offenses charged in Counts 7 and 8.
3. June 10, 2014 to June 9, 2015
{¶ 17} The family moved to the “Chatterly” residence in late 2014, when R.S. was 10
or 11 years old. (See Tr. Vol. II at 226, 235, 277-79, 290.) R.S. testified that, at that residence,
appellant continued forcing her to perform oral sex on and receive oral sex from him—all
of which happened on multiple occasions. (Tr. Vol. II at 226-29, 231-32.) This usually
happened in her parents’ bedroom. (Tr. Vol. II at 231-32.) These allegations formed the
factual basis for the rape and sexual battery offenses charged in Counts 9 and 10.
4. May 1, 2014 to October 1, 2015
{¶ 18} R.S. testified that while the family was still living at their Chatterly residence,
appellant “attempted to rape [her] multiple times.” (Tr. Vol. II at 232-35, 277-79.) She
described appellant telling her to bend over the footboard of his marital bed and read a
video game booklet while he lubricated and attempted to insert his penis into R.S.’s anus.
(Tr. Vol. II at 232-33.) Because R.S. cried, however, he “wouldn’t get very far.” (Tr. Vol. II
at 233.) Although she described this as happening multiple times, R.S. could not recall if
appellant ever penetrated her anus with his penis. (Tr. Vol. II at 234.) Again, R.S. was 10 or
11 years old at this time. (Tr. Vol. II at 235.) These allegations formed the factual basis for
the attempted rape offense charged in Count 11.
5. June 10, 2014 to June 9, 2015
{¶ 19} In October 2015, the family moved from their Chatterly residence to their
current residence on Tall Meadows Drive. (Tr. Vol. II at 235, 279-80, 290-91.) R.S. was
around 11 years old at this time. (Tr. Vol. II at 235-36.)
{¶ 20} R.S. testified that appellant continued forcing her to perform and receive oral
sex, as previously described, at that residence. (Tr. Vol. II at 235-36, 238-42.) During this
time, he also began putting his fingers in R.S.’s vagina. (Tr. Vol. II at 236-37.) R.S. described
being forced to sit in the same chair with appellant when he was playing video games in the
living room so he could “randomly, whenever he felt like it, put his hands into [her] pants
… and stick his fingers inside” her vagina. (Tr. Vol. II at 236-38.) This happened more
No. 21AP-500 7
than once. (Tr. Vol. II at 237.) She also testified that appellant groped her breasts, touched
her butt, and stuck his head inside her shirt on multiple occasions. (Tr. Vol. II at 238-39.)
She testified the sexual encounters occurred in her parents’ bedroom, the living room, the
hallways, and, essentially, anywhere in the home when no one else was around. (Tr. Vol. II
at 239.) These allegations formed the factual basis for the sexual battery and unlawful
sexual conduct with a minor offenses charged in Counts 12 and 13.
{¶ 21} R.S. described the layout of the Tall Meadows home (Tr. Vol. II at 239-42),
and the state presented ten photographs of the home as evidence at trial. (Tr. Vol. II at 242-
46; Trial Ex. A-1 through A-10; Tr. Vol. III at 436. See also Tr. Vol. III at 503-08.)
6. August 6, 2018
{¶ 22} R.S. also testified that appellant sexually abused her on two separate
occasions in 2018 at their Tall Meadows residence. (Tr. Vol. II at 245-49.) Testifying about
one incident, R.S. claimed that after repeatedly calling and texting her, appellant came into
her bedroom, joined her in bed, kissed her, and touched her vagina and breasts underneath
her clothing. (Tr. Vol. II at 246-47.) R.S. described appellant putting his hands down her
pants and inserting his fingers into her vagina approximately one week later. (Tr. Vol. II at
247-49.) He then told R.S. to come downstairs to his bed, and he performed cunnilingus on
her. (Tr. Vol. II at 248.) These allegations formed the factual basis for the sexual battery
and unlawful sexual conduct with a minor offenses charged in Counts 1 through 4.
B. Investigation and Deactivation of Case–August/September 2018
{¶ 23} On August 7, 2018, Columbus Police Department (“CPD”) Officer Joel
Huffman was on patrol when he was dispatched to the Tall Meadows address in response
to a sexual abuse call made by R.S. to police. (Tr. Vol. I at 199-202.) Based on the
information R.S. gave to law enforcement, appellant was taken into custody that day. (Tr.
Vol. I at 203; Tr. Vol. III at 496-97.)
{¶ 24} Although R.S.’s older sister, A.C., and the family friend residing in the home
were present while officers were there, Officer Huffman testified he did not interview or
take statements from anyone else at the scene. (Tr. Vol. I at 202, 205.) Nor did he collect
any evidence. (Tr. Vol. I at 205.) Instead, he referred the matter to Detective Jennifer Haas,
who was then assigned as the lead investigator on this case. (See Tr. Vol. I at 203-04; Tr.
Vol. III at 444-45.)
No. 21AP-500 8
{¶ 25} After appellant was taken into custody, he voluntarily signed a waiver of his
Miranda rights and consented to an interview with Detective Haas at CPD headquarters.
(Tr. Vol. III at 444-45, 449-51, 497-98.) While he was being interviewed, R.S. was
undergoing a forensic interview at Nationwide Children’s Hospital Child Assessment
Center (“CAC”) with Alicia Daniels, a licensed independent social worker. (Tr. Vol. III at
445-46, 448-49. See also Tr. Vol. III at 358-59; Trial Ex. B.) A copy of Ms. Daniels’s report
created in connection with that interview was presented and admitted—in its entirety and
without any redactions—without objection at trial. (Trial Ex. B; Tr. Vol. III at 360-61, 436.)
{¶ 26} In her August 7, 2018 interview with Ms. Daniels, R.S. disclosed chronic
sexual abuse by appellant starting when she was eight years old. (Tr. Vol. III at 361-64.)
Detective Haas’s partner, Detective Jones, observed R.S.’s forensic interview and conveyed
the information R.S. shared to Detective Haas while she was interviewing appellant. (Tr.
Vol. III at 449-52.) During the interview, Detective Haas shared R.S.’s allegations with
appellant. (Tr. Vol. III at 451.) Appellant told Detective Haas R.S.’s allegations against him
were similar to the allegations R.S. made against his son in 2014. (Tr. Vol. III at 456, 498.)
{¶ 27} Also on August 7, 2018, Dr. Farah Brink performed a physical examination
and collected evidence from R.S. at Nationwide CAC. (Tr. Vol. III at 387-89, 394-96; Tr.
Vol. II at 264-66.) R.S. reported to Dr. Brink and Ms. Daniels that appellant penetrated her
vagina with his fingers and put his mouth on her vagina and both breasts the day before.
(Tr. Vol. III at 361-62, 399-400; Trial Ex. B; Trial Ex. C-5. See also Tr. Vol. II at 265-66.)
Dr. Brink testified that her physical examination of R.S. was unremarkable (other than wellhealed scars on her thighs that R.S. reported were from incidents of self-harm) and that she
observed no signs of sexual abuse related trauma. (Tr. Vol. III at 394-95, 402-03, 411-12,
416-18.) Because R.S. alleged sexual assault occurred within 72 hours of her arrival at
Nationwide CAC, Dr. Brink also collected DNA evidence from R.S. for the sexual assault
nurse examination (“SANE”) kit (e.g., rape kit or forensic kit). (Tr. Vol. III at 386, 396-99,
406-07, 457-58; Trial Ex. C-5.) In Dr. Brink’s corresponding records, she indicated that
R.S. told her she had bathed, brushed her teeth, urinated, had a bowel movement, changed
clothes, eaten, and consumed beverages since her assault the previous day. (Tr. Vol. III
400-01, 415; Trial Ex. C-5.)
No. 21AP-500 9
{¶ 28} On August 7, 2018, while he was in custody, appellant voluntarily provided a
DNA sample to law enforcement upon Detective Haas’s request. (Tr. Vol. III at 453, 498-
99.) Thereafter, five samples from the SANE kit performed on R.S. were submitted to CPD’s
crime lab for comparison with appellant’s DNA sample: vaginal swabs, anal swabs, thigh
swabs, breast swabs, and tissue paper.1 (Tr. Vol. III at 424-32, 457-58, 461-62; Trial Ex. D.
See also Tr. Vol. III at 424-25.) Ultimately, the CPD crime lab issued a report (dated
August 22, 2018) containing the results of its SANE kit analysis: no male DNA was detected
on any of the five samples. (Tr. Vol. III at 425-30, 432-34, 458-59, 461-62; Trial Ex. D.)
{¶ 29} Detective Haas also learned from R.S.’s forensic interview that R.S. claimed
appellant had sexually explicit videos or photographs on his phone. (Tr. Vol. III at 453-55.
See also Tr. Vol. II at 268-69; Tr. Vol. III at 363.) Detective Haas thus asked appellant for
consent to search his cellphone, and appellant voluntarily signed a release for his cellphone
to be seized and searched by police. (Tr. Vol. III at 446, 454-55, 499.) Subsequently,
Detective Haas submitted the phone to CPD’s digital forensic unit for data extraction and
analysis. (Tr. Vol. III at 455.) Ultimately, the forensic examination of his phone produced
nothing of evidentiary value in this case. (Tr. Vol. III at 455-56, 460.)
{¶ 30} On August 14, 2018, Detective Haas conducted a follow-up interview with
R.S. and asked for the clothes she had worn during the August 6, 2018 incident. (Tr. Vol.
III at 458-59.) R.S. was unable to turn over the clothes, however, because she had since
washed them. (Tr. Vol. III at 458-59; Tr. Vol. II at 267-68.)
{¶ 31} During her investigation, Detective Haas spoke with A.C. several times over
the phone. (Tr. Vol. III at 447-48, 460-64, 471; Tr. Vol. II at 332-33.) At trial, A.C. testified
that during an August phone conversation, Detective Haas told her to record conversations
she had with appellant. (Tr. Vol. II at 294, 303, 334.) In her testimony, Detective Haas
asserted that although she did not recall affirmatively telling A.C. to do this, “it would not
be unusual” for her to endorse a witness’s offer to try to obtain recorded admissions from a
1 The tissue paper came from R.S.’s attempt at collecting DNA evidence after appellant performed
cunnilingus on her the day before. (Tr. Vol. II at 252-53, 266; Tr. Vol. III at 365, 375, 399, 428.) R.S. also
gave one of the Nationwide CAC doctors a pubic hair she found on her hand after she touched appellant’s
penis. (See Tr. Vol. II at 253, 266-68, 281-82; Tr. Vol. III at 365, 375, 457, 475-76.) R.S. explained she
collected this evidence because, prior to calling police, she “had done a small amount of research.” (Tr. Vol.
II at 252-53. See also Tr. Vol. II at 267-68, 281-82.)
No. 21AP-500 10
suspect in a case such as this one. (Tr. Vol. III at 466-67.) Nothing in the record suggests,
however, that Detective Haas or anyone from CPD gave A.C. instructions, recording
equipment, or specific questions to ask appellant.
{¶ 32} On September 13, 2018, Detective Haas told A.C. that nothing of evidentiary
value was recovered from appellant’s cellphone or the SANE kit. (Tr. Vol. III at 460-63; Tr.
Vol. II at 333-34). In response, A.C. advised Detective Haas that she and R.S. no longer
wanted the case to proceed. (Tr. Vol. III at 460-64, 470-71. See also Tr. Vol. II at 335, 339-
40.) A.C. also expressed to Detective Haas doubts she had about the veracity of R.S.’s
allegations against appellant. (Tr. Vol. III at 463; Tr. Vol. II at 335, 340.) Detective Haas
closed (or inactivated) her investigation into appellant on September 19, 2018. (Tr. Vol. III
at 463-66.)
{¶ 33} Nonetheless, even after CPD ceased its investigation, A.C. continued
recording her conversations with appellant. (Tr. Vol. II at 335-40.)
C. Recorded Conversations and Reactivation of Case–October 2018
{¶ 34} A.C. began recording her conversations with appellant shortly after he was
released from jail. (See Tr. Vol. II at 326-27, 334-35; Tr. Vol. III at 500-02.) She testified at
trial about recording “probably 100” of her conversations with appellant between midAugust and late October 2018. (Tr. Vol. II at 303, 334, 337. See also Tr. Vol. II at 295-96,
335-36, 339-40.) She testified these recorded conversations took place at various locations,
but all six recordings played at trial occurred in a car. (See Tr. Vol. II at 294-95, 304, 309,
312-15; Tr. Vol. III at 500-03.) A.C. never told appellant that he was being recorded. (Tr.
Vol. II at 336.) Although appellant testified that he “kind of thought she was,” A.C. denied
that she was recording him whenever he asked. (Tr. Vol. III at 517-18.)
{¶ 35} In late October 2018, A.C. turned over at least six recordings of her
conversations with appellant to CPD Detective McGuire. (Tr. Vol. III at 472-73. See also Tr.
Vol. II at 337-38, 340-41.) Detective McGuire informed Detective Haas that A.C. had been
in contact with him about the case. (See Tr. Vol. III at 466, 472-73; Tr. Vol. II at 340.) But,
because Detective Haas was out on vacation, she did not actively pursue any further
investigation. (Tr. Vol. III at 466. See also Tr. Vol. II at 332-33.) Accordingly, Detective
McGuire reviewed the recordings. (See Tr. Vol. III at 472-74.)
No. 21AP-500 11
{¶ 36} Soon thereafter, police reactivated their investigation. (See Tr. Vol. II at 296;
Tr. Vol. III at 472-74.) Appellant was rearrested in late October 2018 and indicted with 13
felony sex offenses on November 8, 2018. (See Tr. Vol. II at 296, 327.)
{¶ 37} Six recorded conversations between appellant and A.C. were played for the
jury in their entirety and admitted as evidence at trial over the defense’s objection. (Tr. Vol.
III at 437-40. See, e.g., Tr. Vol. II at 303-16.)
1. First Recording
{¶ 38} In the first recording (Trial Ex. E-1; Tr. Vol. II at 304-06), A.C. asked
appellant: “But how do I know you’re not going to do this stuff again?” (Trial Ex. E-1 at
3:50.) At trial, A.C. testified she was referring to the sexual abuse of R.S. (Tr. Vol. II at 305.)
Appellant responded: “I’m not. That’s the thing, I’m not. You know, you don’t understand.
You know what a wake-up call is?” (Trial Ex. E-1 at 3:54.) When A.C. talked about her
difficulty in coming to terms with the reality of the situation, appellant told her: “There is
nothing to deal with. That’s what I’m trying to tell you.” (Trial Ex. E-1 at 7:25.)
{¶ 39} A.C. expressed concerns about R.S.’s behavior on multiple occasions during
that recorded conversation; each time, appellant said R.S. is smart and manipulative. (Trial
Ex. E-1 at 8:12, 12:15.) A.C. asked: “So, basically, it’s not as traumatic as she made it out to
be, right?,” to which appellant responded: “No, it’s not.” (Trial Ex. E-1 at 9:55; Tr. Vol. II at
305-06.) He also told A.C. that half of R.S.’s allegations were untrue. (Trial Ex. E-1 at 10:05.)
{¶ 40} During the recorded conversation, appellant denied the sexual abuse started
as early as R.S. reported. When A.C. asked when it started, appellant indicated he needed
to think. (Trial Ex. E-1 at 11:10.) Appellant also denied abusing R.S. before she made the
allegations about his son in 2014, but when A.C. suggested “it was after,” appellant
responded by accusing her of fishing. (Trial Ex. E-1 at 12:00.) He expressed frustration that
A.C. repeatedly asked questions he had already answered. (Trial Ex. E-1 at 12:15.) Appellant
never unequivocally denied all of the allegations.
2. Second Recording
{¶ 41} In the second recorded conversation (Trial Ex. E-2; Tr. Vol. II at 306-09),
appellant said: “I hope you paid attention when I told you that [R.S.] is smarter than what
you think.” (Trial Ex. E-2 at 5:04.) A.C. agreed that R.S. is above-average, figures things
out, and knows how to manipulate people. (Trial Ex. E-2 at 5:10.)
No. 21AP-500 12
{¶ 42} A.C. brought up an incident when she saw R.S.’s arm around appellant and
shared her general concern that appellant was in a relationship with R.S. (See Trial Ex. E-2
at 5:40.) Appellant asserted R.S. “is not as innocent as you think,” implying R.S. initiated
some of their alleged sexual encounters, and emphasized that he did not make R.S. do
anything. (Trial Ex. E-2 at 7:43, 9:40; Tr. Vol. II at 307-08.) Appellant acknowledged the
harm he had caused and was “trying to make it up to everybody [he] hurt.” (Trial Ex. E-2 at
8:55.) A.C. suggested that R.S. was “experimenting with [appellant’s] crazy sexuality,” and
appellant responded that he was protecting R.S. by not telling A.C. about R.S.’s behavior
towards him. (See Trial Ex. E-2 at 10:30.) He also claimed he caught R.S. staring at his penis
when he was wearing boxers, but acknowledged he “should have known better.” (Trial Ex.
E-2 at 11:50.) Appellant denied knowing “how this began.” (Trial Ex. E-2 at 11:39.)
{¶ 43} When appellant expressed concern that A.C. might tell someone about these
admissions, she responded: “No, I’m not. I can’t! …, if I say anything, can you imagine, if
I know that this happened, and she tells somebody that I know, you know what’s going to
happen? They’re going to yank my twins.” (Trial. Ex. E-2 at 11:19.)
{¶ 44} Also during the recorded conversation, A.C. asked if R.S. is still a virgin, and
appellant denied having sexual intercourse with her. (Trial Ex. E-2 at 13:00.) A.C. then
clarified: “So, it was basically just like mutual oral,” to which appellant responded: “Yeah,
yeah. Something like that.” (Trial Ex. E-2 at 13:25; Tr. Vol. II at 308.)
3. Third Recording
{¶ 45} In the third recording (Trial Ex. E-3; Tr. Vol. II at 309-12), A.C. and appellant
contemplated their long-term situation since A.C.’s children (including R.S.) no longer
wanted to be in the home with appellant. (Trial Ex. E-3 at 10:30; Tr. Vol. II at 309-10.)
Appellant reiterated that R.S. is not an innocent party. (See Trial Ex. E-3 at 20:25.) He
conceded that he “know[s] it was wrong,” but maintained some things R.S. said about him
were untrue. (See Trial Ex. E-3 at 21:35.)
{¶ 46} A.C. told appellant that R.S. said he would “wake her up to do it,” which
appellant repeatedly denied. (Trial Ex. E-3 at 16:00.) Appellant also denied “this” occurred
on a daily basis. (Trial Ex. E-3 at 25:05.) After A.C. said R.S. claimed it was a few times a
week, appellant responded: “No, not even.” (Trial Ex. E-3 at 25:30.) He denied it happened
often and told A.C.: “I can’t tell you exactly how it is, but I can tell you, no, it wasn’t a few
No. 21AP-500 13
times a week.” (Trial Ex. E-3 at 26:15.) When A.C. asked appellant to tell her how it started,
he responded: “I’m trying to think.” (Trial Ex. E-3 at 26:20.) He ultimately suggested it
began when he and A.C. “were arguing a lot.” (Trial Ex. E-3 at 27:55.) A.C. asked if it began
at “this house” (meaning the Tall Meadows residence), but appellant responded: “No, I
believe it was Chatterly.” (Trial Ex. E-3 at 27:58; Tr. Vol. II at 311.)
4. Fourth Recording
{¶ 47} In the fourth recorded conversation between appellant and A.C. (Trial Ex. E-
4; Tr. Vol. II at 312-13), appellant again denied ever going into R.S.’s room to engage in
sexual conduct with her. (Trial Ex. E-4 at 10:00.) A.C. referenced their earlier conversation
about when the conduct started, and appellant did not deny what he previously shared.
(Trial Ex. E-4 at 10:30.) When A.C. asked what triggered the conduct, appellant became
irritated and responded: “I told you when, I told you about what time. Okay? And where. *
… I just told you, we were fighting a lot.” (Trial Ex. E-4 at 13:05, 17:10.) He also told A.C.
the first time “it happened” was in their downstairs living room. (Trial Ex. E-4 at 14:30.)
5. Fifth Recording
{¶ 48} In the fifth recording (Trial Ex. E-5; Tr. Vol. II at 313-15), appellant assured
A.C. “it won’t” happen again. (Trial Ex. E-5 at 10:50; Tr. Vol. II at 314.) He also denied “ever
doing anything like that before.” (Trial Ex. E-5 at 11:31; Tr. Vol. II at 314-15.) Appellant told
A.C. he inflicted some harm on his arms because he was ashamed. (Trial Ex. E-5 at 16:00.)
{¶ 49} A.C. suggested she might be at fault for what happened, and appellant
responded: “It was all me. I knew right from wrong.” (Trial Ex. E-5 at 11:40; Tr. Vol. II at
315.) A.C. expressed concern about the long-term “horrific effect” sexual abuse might have
on R.S., and appellant told A.C. to just keep doing what she’s doing. (Trial Ex. E-5 at 12:30.)
A.C. mentioned R.S. saying she was forced, to which appellant did not respond. (Trial Ex.
E-5 at 13:40.)
6. Sixth Recording
{¶ 50} In the sixth recorded conversation played for the jury (Trial Ex. E-6; Tr. Vol.
II at 315-17), A.C. emphasized the gravity of the situation to appellant. (Trial Ex. E-6 at
13:40.) In response, appellant said: “[Y]ou act like I don’t understand it, or I don’t feel it, or
I’m not guil…like I don’t feel…like I don’t feel anything about it.” (Trial Ex. E-6 at 13:50.)
No. 21AP-500 14
Appellant told A.C. he is “trying to show [her] that [he] want[s] to deal with it” and that he
“can be better.” (Trial Ex. E-6 at 24:34. See also id. at 15:25.)
{¶ 51} A.C. told appellant she wanted a new bed as a result of his previous
confirmation that “it” happened in their bedroom. (Trial Ex. E-6 at 17:10, 17:23.) Appellant
responded: “That’s fine.” (Trial Ex. E-6 at 17:20.) A.C. explained that “in order to forget
things,” she had “to get rid of everything that reminds [her] of it.” (Trial Ex. E-6 at 17:55.)
Appellant told her they would buy a new mattress that weekend. (Trial Ex. E-6 at 18:00.)
{¶ 52} A.C. expressed concern about getting counseling “for this and not tell[ing]
everything.” (Trial Ex. E-6 at 20:19.) She said: “I’ve kissed your lips, and I know where
they’ve been, and that bothers me.” (Trial Ex. E-6 at 20:30.) Appellant’s suggested solution
was for A.C. not to kiss him anymore. (Trial Ex. E-6 at 20:33.) Appellant assured A.C. that
“it wasn’t as bad as [R.S.] said,” but A.C. said she “didn’t want to imagine [her] husband
going down on [her] daughter.” (Trial Ex. E-6 at 20:45.) Appellant did not deny or
otherwise expressly address this statement.
{¶ 53} Appellant expressed regret about telling A.C. the truth because she was not
handling that information well. But, he ultimately concluded that: “If I kept it, I knew we
couldn’t heal. … But don’t call me selfish when all I did was think about you, to sit there
and tell you that, man.” (Trial Ex. E-6 at 23:10.)
7. Possible Additional Recordings Not Produced or Provided
{¶ 54} During trial, A.C. testified that she turned over more than six recordings to
CPD, and speculated there may have been at least two more. (Tr. Vol. II at 337-38.)
Detective Haas testified she had no knowledge of the number or content of the recorded
conversations A.C. gave to CPD because Detective McGuire received and reviewed the
recordings and took over that part of the case. (Tr. Vol. III at 472-74.) A.C. explained that
she only met Detective McGuire once and R.S. “did most of the communication with him.”
(See Tr. Vol. II at 340.) Although he was under subpoena (May 28, 2021 Subpoena), neither
party called Detective McGuire to testify at trial.
{¶ 55} The state and defense counsel both indicated they were surprised by A.C.’s
mid-trial revelation about the existence of more than six recorded conversations with
appellant. (See Tr. Vol. II at 337-38; Tr. Vol. III at 438.) A.C. testified that some of the
recordings were lost when her phone malfunctioned, but she did not indicate how many.
No. 21AP-500 15
(Tr. Vol. II at 296, 337-38.) She also seemed to suggest that recordings she did not believe
were “usable” were not preserved or turned over to police. (See Tr. Vol. II at 296.) However,
neither the state nor defense counsel asked A.C. to clarify what she meant by “usable” or
how many of her recorded conversations she believed were not “usable,” and therefore, not
preserved.
{¶ 56} Appellant testified that he repeatedly denied R.S.’s allegations during
conversations with A.C., which he suggested would be on other recordings not provided or
preserved. (See Tr. Vol. III at 517-19.) He claimed the conversations in the six recordings
played for the jury occurred in late October 2018, after A.C. had been “hammering [him]
about these things” for weeks and shortly after his brother died. (Tr. Vol. III at 517-19, 528-
29.) Appellant also claimed he made the inculpatory statements (admissions and failures
to deny) on those six recordings in an attempt to stop A.C.’s repeated questioning. (Tr. Vol.
III at 518-21.) Appellant further alleged he made these inculpatory statements on one
occasion after A.C. threatened to harm herself. (Tr. Vol. III at 518-21.) This threat is not
reflected in any of the six recordings played at trial, however, and A.C. was never questioned
about this claim.
D. Other Evidence and Testimony Presented at Trial
{¶ 57} During trial, R.S. described appellant’s penis as uncircumcised and stated
there is a mole “somewhere around his penis.” (Tr. Vol. II at 253.) A.C. testified that
appellant was uncircumcised, had “a mark down there,” and had “some scarring on the
head” of his penis. (Tr. Vol. II at 317.)
{¶ 58} Appellant testified at trial and expressly denied all of the allegations. (Tr. Vol.
III at 522-23.) During trial, appellant’s counsel relied on R.S.’s 2014 experience with
reporting sexual abuse to undermine R.S.’s credibility in three ways. First, to emphasize
R.S.’s delayed disclosure of sexual abuse by appellant despite being in a position to tell an
adult outside of her home when she raised the sexual abuse allegations in 2014. (See, e.g.,
Tr. Vol. II at 269-74, 322-24; Tr. Vol. III at 494-96.) Second, to suggest R.S. conflated abuse
by appellant’s son with the allegations she was making against appellant. (See, e.g., Tr. Vol.
II at 269-80; Tr. Vol. III at 373-74, 498, 509, 513-15.) And third, to argue the allegations
were fabricated by R.S. who, the defense contended, was smart, manipulative, familiar with
No. 21AP-500 16
law enforcement investigations, and knew what she needed to say to ensure appellant
would be removed from her home. (See, e.g., Tr. Vol. II at 258, 267-68, 322.)
III. ANALYSIS
{¶ 59} On appeal, appellant raises seven assignments of error. We address all
assignments of error in the order in which they are raised except for the third assignment
of error arguing ineffective assistance of trial counsel, which we address last.
A. First Assignment of Error
{¶ 60} In his first assignment of error, appellant argues the state suppressed
evidence—recordings of conversations between A.C. and appellant—in violation of his
constitutional right to due process and Brady v. Maryland, 373 U.S. 83 (1963). (Appellant’s
Brief at 14-19.) He explains why he believes additional recordings were withheld, destroyed,
or lost and suggests the trial court erred in admitting the six recordings over defense
counsel’s objection under Brady.
1. Controlling Law
{¶ 61} The crux of appellant’s arguments begins with Brady, wherein the Supreme
Court of the United States held that due process requires the prosecution to provide to the
defense any evidence favorable to the accused that is material either to guilt or punishment.
373 U.S. at 83, 87-88. See also Smith v. Cain,
565 U.S. 73, 75 (2012) (a criminal defendant’s
due process rights are violated when the state “withholds evidence that is favorable to the
defense and material to the defendant’s guilt or punishment”). The Supreme Court
subsequently held that such obligation includes evidence affecting the credibility of a
prosecution witness, including impeachment evidence. See Giglio v. United States,
405
U.S. 150, 154 (1972). A Brady violation occurs when: (1) the state suppresses evidence,
either willfully or inadvertently; (2) the evidence is favorable to the defendant as either
exculpatory (material) or impeachment evidence; and (3) prejudice has resulted to the
defendant. State v. Bethel,
167 Ohio St.3d 362,
2022-Ohio-783, ¶ 19, citing Strickler v.
Greene,
527 U.S. 263, 281-82 (1999). Prejudice occurs when there is a reasonable
probability that the result of the trial would have been different had the evidence been
disclosed to the defense.
Id., citing Kyles v. Whitley,
514 U.S. 419, 433-34 (1995), quoting
United States v. Bagley,
473 U.S. 667, 678, 682 (1985).
No. 21AP-500 17
{¶ 62} If a defendant cannot demonstrate that undisclosed or lost evidence is
materially exculpatory, then, to establish a due process violation, the defendant must
demonstrate the police or prosecution lost, destroyed, or failed to preserve the “potentially
useful” evidence in bad faith. State v. Geeslin, 116 Ohio St.3d 252,
2007-Ohio-5239, ¶ 10;
Arizona v. Youngblood,
488 U.S. 51, 57-58 (1988). “The term ‘bad faith’ generally implies
something more than bad judgment or negligence.” (Citations omitted.) State ex rel.
Horton v. Kilbane,
167 Ohio St.3d 413,
2022-Ohio-205, ¶ 31. It “imports a dishonest
purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some
ulterior motive[,] or ill will partaking of the nature of fraud.” (Citations omitted.)
Id. See
also State v. Wolf,
154 Ohio App.3d 293,
2003-Ohio-4885, ¶ 14 (7th Dist.), quoting Hoskins
v. Aetna Life Ins. Co.,
6 Ohio St.3d 272, 276 (1983). A continuing cavalier attitude toward
preservation of evidence with an abundantly apparent evidentiary value can, under certain
facts and circumstances, amount to “bad faith.” See, e.g., State v. Durnwald,
163 Ohio
App.3d 361,
2005-Ohio-4867, ¶ 31-36 (6th Dist.); State v. Benson,
152 Ohio App.3d 495,
2003-Ohio-1944, ¶ 14-15 (1st Dist.).
2. Trial court proceedings related to potentially missing recordings
{¶ 63} Although trial counsel knew about the six recorded conversations before trial
began, neither the prosecutor nor appellant’s defense counsel knew A.C. would testify she
recorded these conversations at the request of law enforcement. (See, e.g., Tr. Vol. II at 299;
Tr. Vol. III at 438.) After A.C. testified that Detective Haas asked her to record her
conversations with appellant, appellant’s trial counsel moved for either a continuance or a
mistrial pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). (Tr. Vol. II at 299-302.)
These oral motions were predicated on the argument that such statements were
unconstitutionally obtained by a third-party actor on behalf of the state because “[n]o
Miranda rights were given when these statements were elicited from [appellant].” (Tr. Vol.
II at 300.) Had such information been known prior to trial, appellant’s counsel argued, the
defense would have moved to suppress the recordings before trial commenced. (Tr. Vol. II
at 300.) In denying those motions, the trial court noted that nothing in the record suggested
appellant’s statements to A.C. were obtained while he was “in custody,” which is necessary
for purposes of Miranda. (Tr. Vol. II at 301.) See, e.g., Cleveland v. Oles,
152 Ohio St.3d 1,
2017-Ohio-5834, ¶ 9-24. Appellant does not challenge that ruling on appeal.
No. 21AP-500 18
{¶ 64} After the six recorded conversations were played at trial (without objection),
A.C. testified on cross-examination that, between August and October 2018, she recorded
“probably 100” conversations with appellant. (Tr. Vol. II at 335-37. See also Tr. Vol. II at
295-96.) Some of those recordings were lost when her phone malfunctioned, while others
(beyond the six played at trial) may have been deleted by her, not turned over to police, or
provided to police but not produced in discovery to appellant’s counsel. (See Tr. Vol. II at
337-38; Appellant’s Brief at 14-19. See also Tr. Vol. II at 296.) The record shows that the
prosecutor and appellant’s counsel were surprised by A.C.’s mid-trial revelation about the
possible existence of more than six recordings, including potentially two more recordings
she gave to law enforcement. (See Tr. Vol. II at 337-38; Tr. Vol. III at 438.) Yet, appellant’s
trial counsel did not move the trial court for any remedial action—mistrial, continuance,
exclusion of evidence, or otherwise—based on Crim.R. 16 or Brady at that time.
{¶ 65} When the state moved to admit the six recordings as evidence the day after
A.C. testified, appellant’s trial counsel objected, citing Brady. (See Tr. Vol. II at 437-38.) In
response, the prosecutor represented that he had not been made aware of any other
possible recordings until A.C. testified at trial. (Tr. Vol. III at 438.) Appellant’s counsel did
not refute this representation; instead, he requested a jury instruction concerning missing
evidence, which is the subject of appellant’s second assignment of error. (Tr. Vol. II at 438.)
{¶ 66} The trial court ultimately admitted the six recordings over the defense’s
objection, but suggested that if the defense “end[ed] up calling the detective or anything
like that, that [issue relating to potentially withheld or destroyed evidence] could be
explored as well.” (Tr. Vol. II at 438-39.)
{¶ 67} During the defense’s case-in-chief, appellant’s trial counsel called Detective
Haas as a witness. Detective Haas testified that Detective McGuire handled this portion of
the investigation and she did not review or receive A.C.’s recordings. (Tr. Vol. III at 473-
74.) And although Detective McGuire was subpoenaed for trial (May 28, 2021 Subpoena),
neither the state nor defense counsel elected to call him as a witness.
3. Analysis
{¶ 68} Appellant argues in his first assignment of error that additional recordings of
conversations he had with A.C. existed (at least at some point) and would have supported
No. 21AP-500 19
his testimony and weakened the inculpatory value of the six recordings played for the jury
and admitted into evidence at trial.
{¶ 69} Appellant and A.C. both testified about having many in-person conversations
after R.S. reported sexual abuse to police. (See, e.g., Tr. Vol. III at 500-03, 528; Tr. Vol. II
at 293-96.) Appellant testified that he repeatedly denied R.S.’s allegations during these
conversations. (Tr. Vol. III at 517-22, 528-29, 534-36.) The recordings played for the jury
did not, however, include adamant or unequivocal denials by appellant.
{¶ 70} During his testimony, Appellant claimed the recordings played for the jury
depicted conversations that took place after A.C. had “been hammering” him for months
about R.S.’s allegations and suggested what he said in those recordings was what he
believed was necessary for “her to stop.” (Tr. Vol. III at 518-19, 528-29.) Appellant
described A.C. questioning him about R.S.’s allegations while threatening to harm herself
with a razor on one occasion. (Tr. Vol. III at 520-21.) But that conversation was not among
the six played at trial, and it is unclear precisely what impact he purports that interaction
had on any subsequent conversations. (See Tr. Vol. III at 520-21.) Appellant also proffered
in his trial testimony that, when the inculpatory recordings were made, he was in a bad
mindset and was desperate to see his children (which A.C. facilitated, on some occasions
when they met). (Tr. Vol. III at 518, 520-22, 532-36.) At trial, appellant expressly denied
engaging in any sexual acts with R.S., and speculated that his repeated denials of the
allegations during conversations with A.C. would be reflected on the other possible
recordings A.C. may have made. (Tr. Vol. III at 517-21, 522-23, 534-36.)
{¶ 71} Appellant’s Brady claim fails, however, at its inception. Although he
speculates about the nature of the conversations that would have been on other potential
recordings that may have, at some point, existed, it is well-established that mere
speculation—without more—is insufficient to support a claimed Brady violation. See, e.g.,
State v. Sullivan, 10th Dist. No. 13AP-861, 2014-Ohio-1260, ¶ 20, citing State v. Moore,
10th Dist. No. 11AP-1116,
2013-Ohio-3365, ¶ 43, and State v. Hanna,
95 Ohio St.3d 285,
2002-Ohio-2221, ¶ 60. Everything appellant claims on appeal about possible recordings of
conversations he had with A.C.—from the number, content, and whether the state knew (or
should have known) about them—is based on speculation.
No. 21AP-500 20
{¶ 72} A.C. testified she was not sure how many conversations she recorded, but
conjectured “probably 100.” (Tr. Vol. II at 337.) Some of those recordings, she testified,
were lost because her “one phone burnt up after a few months of recording.” (Tr. Vol. II at
296.) Nothing in the record indicates, however, precisely (or even approximately) how
many recordings were lost as a result. If anything, the record suggests most of A.C.’s
recordings were lost due to the malfunctioning of her phone. (See Tr. Vol. II at 337-38.)
{¶ 73} Appellant contends in his brief that “[A.C.] claims she provided at least two
additional recordings to detectives.” (Appellant’s Brief at 17.) But that claim is itself a
speculative extrapolation of her actual testimony, which is set forth, in relevant part, below:
[DEFENSE:] And of those 100 -- or hundreds of recordings,
you turned over six to the Columbus police, correct?
[A.C.:] Actually, no, there are more. Like, there were more. I’m
not sure why there’s only six here.
…
[DEFENSE:] How many more were not turned over?
[A.C.:] There’s probably two more that weren’t. Well, they
should have been turned over. I don’t know why they weren’t.
(Tr. Vol. II at 337.) Based on this testimony, it is not entirely clear whether A.C. meant
there were two additional recordings in her possession that she did not turn over to police
or that she gave two additional recordings to police that were not played by the state at trial.
The defense did not attempt to clarify her testimony, and Detective Haas was not able to
offer additional information because Detective McGuire took A.C.’s call and dealt with the
recordings. (Tr. Vol. III at 473-74. See also Tr. Vol. II at 332, 340.)
{¶ 74} Moreover, Detective McGuire was not called to testify at trial. Thus, there is
no testimony in the record from the detective who received and reviewed the recordings
about the number and content of the recordings that appellant now argues on appeal were
unconstitutionally withheld. And, of note, A.C. was not asked to describe the conversations
she recorded but, for whatever reason, were not played at trial.
{¶ 75} Without some evidence beyond appellant’s hypotheses—that additional
recordings actually existed and contained material exculpatory evidence—appellant cannot
No. 21AP-500 21
prove the state violated Brady. As such, we find appellant failed to prove the recordings at
issue would have provided material exculpatory evidence.
{¶ 76} Because the content of the possible additional recordings is unknown and
only potentially useful, appellant must establish bad faith on the state’s part to succeed with
a due process claim. See Geeslin, 2007-Ohio-5239 at ¶ 10; Youngblood,
488 U.S. at 57-58.
The evidence appellant argues was unconstitutionally suppressed falls into three
categories: (1) recordings in the possession of law enforcement that were not given to the
defense; (2) recordings lost due to the malfunction of A.C.’s phone; and (3) recordings A.C.
may have intentionally deleted.
{¶ 77} As to the first category, we reiterate that, as described above, appellant has
not provided compelling proof that any of these recordings existed or were available to the
state. It is true that the Brady rule “encompasses evidence ‘known only to police
investigators and not to the prosecutor.’ ” Strickler, 527 U.S. at 280-81, quoting Kyles,
514
U.S. at 438. And, “[i]n order to comply with Brady, therefore, ‘the individual prosecutor
has a duty to learn of any favorable evidence known to the others acting on the
government’s behalf …, including the police.’ ”
Id., quoting
Kyles at 437. But the record
does not clearly establish that any additional recordings were, in fact, provided to law
enforcement. Further, without evidentiary support or any legal argument, appellant
contends that we should somehow infer bad faith by either the police or the prosecutor. We
decline to speculate about malfeasance by the state when the defense did not adequately
attempt to develop the record below by, for instance, calling Detective McGuire as a witness
or attempting to clarify A.C.s testimony on this matter. Accordingly, the arguments
appellant makes with respect to this first category of suppressed evidence are not well-taken.
{¶ 78} As to the second and third categories of suppressed evidence—lost or deleted
recordings—appellant does not point to any authority for the proposition that Brady
requires the state to secure and ensure the preservation of evidence not in its possession
from third parties. We recognize A.C. claimed Detective Haas asked her to start recording
her conversations with appellant. (See, e.g., Tr. Vol. II at 294, 327, 334.) And while
Detective Haas had no recollection of telling A.C. to do this, it is true that Detective Haas
acknowledged “it would not be unusual” for her to endorse a witness’s offer to try to obtain
No. 21AP-500 22
recorded admissions from a suspect in a case such as this one. (Tr. Vol. III at 466-67.) But
we do not find this evidence sufficiently establishes that A.C. was acting on behalf of the
state when she recorded her conversations with appellant.
{¶ 79} Because this case involves the potential disposal of evidence by a third-party
who was not acting on behalf of or at the direction of the state, it is difficult for appellant to
connect the destruction of evidence to bad faith on the part of the state. Nothing in the
record suggests the state was even aware of the recordings lost on A.C.’s phone or that A.C.
may have deleted. “Without state action, the panoply of constitutional protections generally
does not apply.” State v. Fornshell, 1st Dist. No. C-180267, 2021-Ohio-674, ¶ 11, citing
Bouquett v. St. Elizabeth Corp.,
43 Ohio St.3d 50, 53 (1989) (appellee required to show
state action to “warrant the constitutional protection of due process”).
{¶ 80} Our determination that A.C. was not a state actor is fatal to appellant’s
arguments concerning lost or destroyed evidence. But, even if she were a state actor, his
arguments are without merit. As to the recordings lost when A.C.’s phone malfunctioned
(the second category), appellant offers no explanation in his brief as to how A.C. acted in
bad faith. Nor do we believe the record suggests she did. With regard to the third category,
appellant contends in his brief that A.C. “expressly stated she deleted recordings to prevent
[appellant] from gaining access to them.” (Appellant’s Brief at 19, citing Tr. Vol. II at 296.)
But he mischaracterizes her testimony. A.C. stated that she first downloaded the recordings
to her daughter’s phone before deleting them from her own phone. (Tr. Vol. II at 296.)
A.C. was not asked if she ever intentionally deleted recordings before such transfer
occurred.
{¶ 81} Without a showing that the evidence at issue was materially exculpatory or
that the state acted in bad faith—let alone a showing of the existence of any suppressed
evidence or state action—we overrule appellant’s first assignment of error.
B. Second Assignment of Error
{¶ 82} In his second assignment of error, appellant contends the trial court erred
when it denied his request for a jury instruction on the adverse inference a jury is permitted
to draw from the recordings the state may have not provided to defense counsel in
discovery. Those arguments are not well-taken.
No. 21AP-500 23
1. Controlling Law and Standard of Review
{¶ 83} The purpose of jury instructions is to properly guide the jury in deciding
questions of fact based on the applicable substantive law. Thus, a trial court must give jury
instructions that are relevant and necessary for the jury to weigh the evidence and discharge
its duty as fact finder. State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the
syllabus. In fact, in a criminal case, prejudicial error is found where a court fails to give an
instruction that is pertinent to the case, states the law correctly, and is not covered by the
general charge. State v. Sneed,
63 Ohio St.3d 3, 9 (1992); State v. Angel, 10th Dist. No.
19AP-771,
2021-Ohio-4322, ¶ 67, quoting State v. Joy,
74 Ohio St.3d 178, 181 (1995).
Although a trial court “has broad discretion to decide how to fashion jury instructions,”
such instructions must “present a correct, pertinent statement of the law that is appropriate
to the facts” of the case. State v. White,
142 Ohio St.3d 277,
2015-Ohio-492, ¶ 46, citing
State v. Griffin,
141 Ohio St.3d 392,
2014-Ohio-4767, ¶ 5; State v. Lessin,
67 Ohio St.3d
487, 493 (1993). No purpose is served by giving instructions on law that does not apply to
the facts and circumstances of the case.
{¶ 84} We review a trial court’s decision to deny requested jury instructions for an
abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68 (1989); State v. Robinson, 10th
Dist. No. 17AP-853,
2019-Ohio-558, ¶ 30. An abuse of discretion occurs when the trial
court’s decision was unreasonable, arbitrary, or unconscionable. See, e.g., State v. Brown,
10th Dist. No. 22AP-38,
2022-Ohio-4073, ¶ 19, citing Blakemore v. Blakemore,
5 Ohio
St.3d 217, 219 (1983). “A court abuses its discretion when a legal rule entrusts a decision to
a judge’s discretion and the judge’s exercise of that discretion is outside of the legally
permissible range of choices.” State v. Hackett,
164 Ohio St.3d 74,
2020-Ohio-6699, ¶ 19.
An abuse of discretion may also be found where a trial court “applies the wrong legal
standard, misapplies the correct legal standard, or relies on clearly erroneous findings of
fact.” Thomas v. Cleveland,
176 Ohio App.3d 401,
2008-Ohio-1720, ¶ 15 (8th Dist.). See
also New Asian Super Mkt. v. Jiahe Weng, 10th Dist. No. 17AP-207,
2018-Ohio-1248, ¶ 16.
2. Analysis
{¶ 85} Appellant timely filed his request for an adverse inference instruction.
(Aug. 5, 2021 Defendant’s Proposed Jury Instruction.) Before closing arguments, his trial
counsel presented argument as to why the requested instruction was warranted. (Tr. Vol.
No. 21AP-500 24
III at 539-43.) After closing arguments, the trial court formally denied the requested
instruction. (Tr. Vol. IV at 593.) Appellant’s trial counsel then objected to that decision on
the record. (Tr. Vol. IV at 593.)
{¶ 86} An adverse inference may arise where a party who has control of the evidence
in question fails, without satisfactory explanation, to provide the evidence to another party.
See, e.g., Poseidon Environmental Servs. v. Nu Way Indus. Waste Mgt., LLC, 7th Dist. No.
16 MA 0083, 2017-Ohio-9407, ¶ 18, citing Vidovic v. Hoynes, 11th Dist. No. 2014-L-054,
2015-Ohio-712, ¶ 78, citing Schwaller v. Maguire, 1st Dist. No. C-02055,
2003-Ohio-6917,
¶ 24. In that situation, a jury is permitted to draw an inference that would be unfavorable
to the party who has failed to produce the evidence in question. See
id. Before giving such
instruction to a jury, however, Ohio courts typically require a strong showing of
malfeasance—or, at least, gross neglect. See
id.
{¶ 87} As the state notes, the adverse inference instruction is generally applied in
civil cases. (See Appellee’s Brief at 14-15.) And this makes sense because parties in civil cases
have equal discovery burdens and fewer constitutional protections than criminal
defendants. In arguing this instruction should be extended to criminal cases, appellant cites
as support a single case from another appellate district: State v. Blankenship, 9th Dist. No.
2815, 1994 Ohio App. LEXIS 4230 (Sept. 21, 1994). (Appellant’s Brief at 23.)
{¶ 88} In Blankenship, the Ninth District Court of Appeals affirmed the trial court’s
refusal to give a similar instruction in a criminal case. Id. at *11-12. The defendant requested
the adverse inference instruction because the state had physical evidence in its custody (ski
mask and duffle bag) that it did not present to the jury. Id. During closing arguments,
defense counsel was permitted to imply that such evidence would have been damaging to
the state’s case had it been presented. Id. But, the trial court refused to specifically instruct
the jury that defense counsel’s implication was appropriate. Id. at *12. Reviewing that
refusal, the Blankenship court noted that defense counsel’s closing arguments “were not
evidence that could be considered by the jury” and “[t]here was no need for a specific
instruction informing the jury that defendant’s counsel’s argument was not inappropriate.”
Id. at *13.
{¶ 89} Appellant contends that because the Ninth District did not expressly find
such instruction to be wholly improper in criminal cases, the trial court erred in refusing to
No. 21AP-500 25
give that instruction in this case. This argument is not well-taken. The Blankenship court
did not rule upon whether the adverse inference instruction applies in criminal cases
because it found the requested instruction was not necessary under the facts and
circumstances of that case. The court’s silence on the applicability of this instruction to
criminal cases does not, however, equate to an endorsement of such application.
{¶ 90} But beyond the failure to provide legal authority in support of this claim, and
assuming an adverse inference instruction could be appropriate in criminal cases, we do
not believe appellant adequately established the factual predicate to warrant such
instruction anyway. The record does not establish that recordings beyond the six played for
the jury were ever in the state’s control. Indeed, appellant’s trial counsel never claimed the
prosecutor had additional recordings that simply were not turned over to the defense. (Tr.
Vol. II at 299.) And, the prosecutor denied on the record that he did. (Tr. Vol. III at 438.)
At most, the record suggests additional recordings might have been lost or deleted by A.C.,
or provided to a detective (who was not called to testify at trial) but not given to the
prosecutor. Setting aside appellant’s failure to adequately establish whether such evidence
existed, appellant is unable to make a showing of malfeasance or gross neglect on the part
of the prosecutor to warrant this instruction. Accordingly, we expressly decline to opine on
whether an adverse inference instruction could be appropriate in a criminal case because
we find it would not be factually warranted here.
{¶ 91} For the foregoing reasons, we find the trial court did not abuse its discretion
when it refused to give appellant’s proposed jury instruction. Accordingly, we overrule his
second assignment of error.
C. Fourth Assignment of Error
{¶ 92} In his fourth assignment of error, appellant asserts the record does not
support the trial court’s imposition of consecutive sentences. We disagree.
1. Controlling Law
{¶ 93} When multiple prison terms are imposed, Ohio law presumes those
sentences will run concurrently—not consecutively. R.C. 2929.41(A); State v. Gwynne,
__ Ohio St.3d __, 2022-Ohio-4607, ¶ 10 (“Gwynne II”); State v. Hitchcock,
157 Ohio St.3d
215,
2019-Ohio-3246, ¶ 21.
No. 21AP-500 26
{¶ 94} Under R.C. 2929.14(C)(4), however, a trial court is permitted to impose
consecutive sentences, but only after it makes the mandatory sentencing findings
prescribed by the statute. See Gwynne II at ¶ 10-11; State v. Bates, 118 Ohio St.3d 174,
2008-Ohio-1983, ¶ 15-16. Specifically, the trial court must find: (1) “the consecutive service
is necessary to protect the public from future crime or to punish the offender”;
(2) “consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public”; and (3) one or more of R.C.
2929.14(C)(4)’s subsections apply. R.C. 2929.14(C)(4). See also Gwynne II at ¶ 10.
{¶ 95} Relevant here, R.C. 2929.14(C)(4)’s subsections require the trial court to find
that either: (1) two or more offenses were committed as part of a course of conduct and the
harm caused by the offenses was so great or unusual that a single prison term cannot
adequately reflect the seriousness of the offender’s conduct; or (2) the offender’s criminal
history demonstrates that consecutive sentences are needed to protect the public from the
defendant committing future crimes. R.C. 2929.14(C)(4)(b) and (c). (See Sent. Tr. at 18.)
2. Appellate Review of Consecutive Sentences.
{¶ 96} The proper scope of felony sentence review by Ohio appellate courts,
including review of consecutive sentences, is set forth in R.C. 2953.08(G)(2), which
provides, in relevant part:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.
The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this division
if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
No. 21AP-500 27
See State v. Gwynne, 158 Ohio St.3d 279,
2019-Ohio-4761, ¶ 16 (“Gwynne I”); Gwynne II
at ¶ 10. To determine whether a trial court complied with R.C. 2929.14(C)(4), we must
engage in a two-step analysis.
{¶ 97} We first review the record to confirm the trial court made the requisite
consecutive sentence findings under R.C. 2929.14—“i.e., the first and second findings
regarding necessity and proportionality, as well as the third required finding under R.C.
2929.14(C)(4)(a), (b), or (c).” Gwynne II at ¶ 25. The trial court must state the required
findings at the sentencing hearing and incorporate those findings into the sentencing entry.
State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, ¶ 29. Although a “word-for-word
recitation of the language of the statute is not required,” a reviewing court must be able to
discern that the trial court engaged in the correct analysis, and determine that the record
contains evidence to support the trial court’s findings.
Id. A trial court is not required to
state the precise reasons for its statutory findings on the record. State v. Sullivan, 10th Dist.
No. 11AP-414,
2012-Ohio-2737, ¶ 24.
{¶ 98} If a trial court fails to properly make the required statutory findings, we “must
hold that the order of consecutive sentences is contrary to law and either modify the
sentence or vacate it and remand the case for resentencing.” Gwynne II at ¶ 25, citing
Bonnell at ¶ 36-37. Even if we find just one of the trial court’s consecutive sentence findings
not to be supported under the clear and convincing standard provided by R.C.
2953.08(G)(2), we must modify or vacate the trial court’s consecutive sentence order.
Gwynne II at ¶ 26, citing R.C. 2953.08(G)(2).
{¶ 99} If we instead determine the trial court properly made the necessary findings
to impose consecutive sentences under R.C. 2929.14(C)(4), we must next evaluate whether
the record clearly and convincingly supports those findings. Gwynne II at ¶ 26. “ ‘Clear and
convincing evidence is that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is required
“beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’ ” Id. at ¶ 19,
quoting State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 22, quoting Cross v.
Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus.
No. 21AP-500 28
3. Analysis
{¶ 100} In this case, the trial court ran all of appellant’s prison sentences
consecutively, for an aggregate sentence of 50 years to life imprisonment. In support of its
decision to impose consecutive sentences for all counts, the trial court stated that it found:
[C]onsecutive sentences are necessary to protect the public
from future crimes and to punish the offender; that it’s not
disproportionate to the seriousness of the offender’s conduct
and the danger the offender poses to the public; and that the
offenses are all part of one or more courses of conduct and the
harm caused is so great or unusual, that a single prison term
would not adequately reflect the seriousness of the offender’s
conduct.
(Sent. Tr. at 18.) The third finding relates to R.C. 2929.14(C)(4)(b).
{¶ 101} Appellant does not dispute that the trial court made the statutorily required
consecutive sentence findings on the record (Sent. Tr. at 18) and incorporated those
findings into the sentencing entry (Sept. 7, 2021 Jgmt. Entry at 2). Rather, he challenges
the substance of the trial court’s findings under R.C. 2929.14(C).
{¶ 102} Appellant first argues the record does not support findings under R.C.
2929.14(C)(4)(a) or (c). But, the trial court did not make findings under either subsection.
(See Sent. Tr. at 18.) Thus, those arguments are not well-taken.
{¶ 103} Next, appellant contends “consecutive sentences are unnecessary for
adequate punishment” because he “is already facing a life sentence.” (Appellant’s Brief at
33.) But he provides no support for his proposition that, because consecutive sentences
might be superfluous, a trial court cannot (or should not) order a defendant to consecutively
serve multiple mandatory prison sentences when at least one carries a life tail. Compare
with State v. Blanton, 4th Dist. No. 16CA1031, 2018-Ohio-1275, ¶ 102 (finding a similar
argument to be “disingenuous and completely unpersuasive”); State v. Townsend, 8th Dist.
No. 110525,
2022-Ohio-692, ¶ 18. Because appellant fails to offer any legal authority to
support this argument, we decline to address this portion of his assignment of error. See
App.R. 12(A)(2) and 16(A)(7). And, in any event, we do not find this argument compelling,
given the record in this case.
No. 21AP-500 29
{¶ 104} Appellant finally argues the trial court’s finding under R.C. 2929.14(C)(4)(b)
is not clearly and convincingly supported by the record. (Appellant’s Brief at 33-34.) R.C.
2929.14(C)(4)(b) states: “At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the multiple
offenses so committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects the
seriousness of the offender’s conduct.”
{¶ 105} In support of his arguments involving this statutory factor, appellant makes
a blanket assertion—without providing any legal support—that the harm R.S. suffered “is
not unique” from others like it because all “victims of this type of offense suffer[] this type
of harm.” (Appellant’s Brief at 33-34.) But he fails to develop this argument in his brief or
offer any legal authority in support of it. He also does not, for instance, compare the
sentence imposed and facts of his case with others to justify or bolster his contention that
the harm here is not unique. Compare with State v. Glover, 1st Dist. No. C-220088, 2023-
Ohio-1153, ¶ 75-79.
{¶ 106} Nevertheless, following a thorough review of the record, we cannot say that it
clearly and convincingly fails to support the trial court’s findings under R.C.
2929.14(C)(4)(b). We first note that appellant does not dispute the first clause of R.C.
2929.14(C)(4)(b): “At least two of the multiple offenses were committed as part of one or
more courses of conduct.” Because the offenses for which appellant was sentenced occurred
many times for approximately six years, the record clearly and convincingly supports this
component of the trial court’s finding.
{¶ 107} As for the second sentence of R.C. 2929.14(C)(4)(b)—“the harm caused by
two or more of the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct”—we also find this component
to be clearly and convincingly supported by the record. (Emphasis added.) The focus of R.C.
2929.14(C)(4)(b) is the harm caused by the multiple offenses. If the harm caused by the
multiple offenses is so great that no single prison term for any one of the offenses
sufficiently reflects the seriousness of the offender’s conduct, then consecutive sentences
may be appropriate. See Gwynne I, 2022-Ohio-4607 at ¶ 15, fn. 2.
No. 21AP-500 30
{¶ 108} Appellant first came into R.S.’s life when she was 7 years old. Before she was
10 years old, he began sexually abusing her regularly, until 2018, when she was 14. During
this time, appellant caused R.S. to feel disconnected from her family. (Tr. Vol. II at 249-51,
279-80, 283-85, 321-22, 324; Sent. Tr. at 9.) As R.S.’s stepfather, appellant was in a position
of trust and control, which he used to facilitate the ongoing abuse and manipulate R.S. into
performing sexual acts. (See Tr. Vol. II at 226, 236-37.) Appellant called R.S. by her
mother’s name, and directed R.S. to pretend that she was her mother. (Tr. Vol. II at 228.)
He also convinced R.S. she could not be loved by anyone else, and distorted her
understanding of a healthy relationship. (See Sent. Tr. at 6-7. See also Tr. Vol. III at 360.)
{¶ 109} The record shows appellant continued sexually abusing R.S. even after R.S.
disclosed to him in 2014 that she was being sexually abused by his son. Indeed, the abuse
continued until 2018, when R.S. reported it to law enforcement. Once these allegations
came to light, appellant denied they were true. He tried to convince A.C. that R.S. was lying.
(Tr. Vol. II at 335-38.) In fact, A.C. initially asked the lead detective to close her
investigation into the allegations her own daughter made, and the lead detective honored
that request. (Tr. Vol. II at 335; Tr. Vol. III at 460-66.) In the recorded conversations
between appellant and A.C. played at trial, appellant downplayed his role, asserted the
sexual conduct was mutual, and blamed R.S. by suggesting she did things to entice him.
(See, e.g., Trial Ex. E-2, E-3, E-4, and E-5.) Again, the only reason the abuse stopped was
because the offenses were reported to the police by R.S.
{¶ 110} As a result of the sexual abuse, R.S. indicated she still suffers from anxiety
and lack of trust. (Sent. Tr. at 6-7.) She described avoiding or having negative reactions to
regular activities—showering, eating certain foods, flinching when touched by her friends—
because she associated those activities with the “terrible things” appellant had done to her.
(Sent. Tr. at 7.) When she presented to Nationwide CAC on August 7, 2018, R.S. reported
engaging in self-harm behavior and having frequent suicidal thoughts. (Tr. Vol. III at 392-
94. See also Tr. Vol. II at 249.)
{¶ 111} The record of this case indicates the nature of the offenses, the severity of
appellant’s course of criminal conduct over a lengthy period of time, and the psychological
harm to R.S. all contribute to our determination that the record clearly and convincingly
supports the trial court’s findings that the offenses were more serious than conduct
No. 21AP-500 31
normally constituting the offenses of rape and sexual battery, and that the harm caused was
so great or unusual that no single prison term for any of the offenses committed adequately
reflects the seriousness of his conduct.
{¶ 112} For these reasons, appellant’s fourth assignment of error is overruled.
D. Fifth Assignment of Error
{¶ 113} In his fifth assignment of error, appellant argues the trial court erred in
sentencing him to the maximum available prison term. We disagree.
1. Controlling Law
{¶ 114} R.C. 2929.11 addresses the purposes of felony sentencing. It provides as
follows:
(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others, to punish
the offender, and to promote the effective rehabilitation of the
offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To
achieve those purposes, the sentencing court shall consider the
need for incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or
both.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony
sentencing set forth in division (A) of this section,
commensurate with and not demeaning to the seriousness of
the offender’s conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes
committed by similar offenders.
(C) A court that imposes a sentence upon an offender for a
felony shall not base the sentence upon the race, ethnic
background, gender, or religion of the offender.
{¶ 115} R.C. 2929.12 addresses factors to be taken into account when imposing a
sentence under R.C. 2929.11:
Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this
No. 21AP-500 32
chapter upon an offender for a felony has discretion to
determine the most effective way to comply with the purposes
and principles of sentencing set forth in section 2929.11 of the
Revised Code. In exercising that discretion, the court shall
consider the factors set forth in [divisions (B) through (F)] of
this section … and, in addition, may consider any other
factors that are relevant to achieving those purposes and
principles of sentencing.
R.C. 2929.12(A). R.C. 2929.12(B) through (F) then set out factors for the sentencing court
to consider, including the seriousness of the defendant’s conduct and likelihood of
recidivism.
{¶ 116} It is well-settled that neither R.C. 2929.11 nor 2929.12 requires a trial court
to make any specific factual findings on the record. State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, ¶ 20, citing State v. Wilson,
129 Ohio St.3d 214,
2011-Ohio-2669, ¶ 31;
State v. Arnett,
88 Ohio St.3d 208, 215 (2000). See also State v. Holloman, 10th Dist. No.
07AP-875,
2008-Ohio-2650, ¶ 18; State v. Ibrahim, 10th Dist. No. 13AP-167, 2014-Ohio-
666, ¶ 20, citing State v. Peterson, 10th Dist. No. 12AP-646,
2013-Ohio-1807, ¶ 31.
2. Standard of Review
{¶ 117} As described above, the proper scope of felony sentence appellate review is
set forth in R.C. 2953.08(G)(2). Under this statute, appellate courts are not permitted to
weigh the evidence and alter a sentence under R.C. 2929.11 and 2929.12. Jones at ¶ 42.
Appellate review of a sentence that is “otherwise contrary to law” is permitted, however,
under R.C. 2953.08(G)(2)(a). Otherwise contrary to law means “ ‘in violation of statute or
legal regulations.’ ”
Jones at ¶ 34, quoting Black’s Law Dictionary 328 (6th Ed.1990).
3. Analysis
{¶ 118} In this case, the record reflects, and appellant concedes, the trial court
considered and applied the appropriate statutory sentencing criteria and imposed a
sentence authorized by applicable law. (Sent. Tr. at 16-19; Sept. 7, 2021 Jgmt. Entry.)
{¶ 119} Appellant instead argues the trial court’s imposition of a maximum prison
sentence is “otherwise contrary to law.” This is because, he contends, the trial court
improperly “used extraneous factors outside of those laid out in R.C. 2929.11 and 2929.12.”
(Appellant’s Brief at 35-37.) Specifically, he points to the uncharged criminal allegations
described in statements provided by R.S. and A.C. during the sentencing hearing. Appellant
No. 21AP-500 33
argues these “additional allegations tainted the sentencing” and the trial court should not
have considered these “improper factors.” His contentions are not compelling, for two
reasons. (Appellant’s Brief at 37.)
{¶ 120} First, the record contravenes his factual assertions. After appellant’s trial
counsel objected to R.S.’s and A.C.’s statements at sentencing, the trial court stated that it
had “read them, but at the end of the day[,] will base its ruling and [the] sentence [it
imposes] on the purposes and principles of sentencing and the law.” (Sent. Tr. at 12-14.)
We find there to be nothing in the record that contradicts that statement.
{¶ 121} Second, even had the trial court considered uncharged other acts evidence
when sentencing appellant, consideration of such information is permissible. “ ‘Courts have
consistently held that evidence of other crimes, including crimes that never result in
criminal charges being pursued, or criminal charges that are dismissed as a result of a plea
bargain, may be considered at sentencing.’ ” State v. Dixon, 4th Dist. No. 21CA8, 2022-
Ohio-2807, ¶ 31, quoting State v. Starkey, 7th Dist. No. 06 MA 110, 2007-Ohio-6702, ¶ 16,
citing State v. Cooey,
46 Ohio St.3d 20, 35 (1989). See also State v. Banks, 10th Dist. No.
10AP-1065,
2011-Ohio-2749, ¶ 24, citing State v. Wiles,
59 Ohio St.3d 71, 78 (1991), State
v. Bowser,
186 Ohio App.3d 162,
2010-Ohio-951, ¶ 16 (2d Dist.), and Starkey at ¶ 19.
Indeed, “ ‘[c]ourts have historically been permitted to consider hearsay evidence, evidence
of an offender’s criminal history, the facts concerning charges dismissed, and even offenses
for which charges were not filed, but were addressed in the presentence investigation
(“PSI”).’ ” State v. Steele, 8th Dist. No. 105085,
2017-Ohio-7605, ¶ 10, quoting State v.
Ropp, 3d Dist. No. 14-13-21,
2014-Ohio-2462, ¶ 4. “A caveat is that uncharged conduct
cannot be ‘the sole basis for the sentence.’ ” Steele at ¶ 10, quoting State v. Gray, 8th Dist.
No. 91806,
2009-Ohio-4200, ¶ 13, citing State v. Williams, 8th Dist. No. 79273,
2002 Ohio
App. LEXIS 453, *24 (Feb. 7, 2002).
{¶ 122} The trial court imposed prison terms for all counts that were within the
applicable statutory ranges. Even if uncharged conduct was considered by the trial court at
sentencing, the record is clear that it was only one factor among many the trial court
considered in its sentencing decision. (See, e.g., Sent. Tr. at 16.) Based on the foregoing, we
cannot conclude the trial court acted contrary to law. Accordingly, appellant’s fifth
assignment of error is overruled.
No. 21AP-500 34
E. Sixth Assignment of Error
{¶ 123} In his sixth assignment of error, appellant contends his convictions were
against the manifest weight of the evidence. We disagree.
1. Controlling Law and Standard of Review
{¶ 124} A manifest weight challenge attacks the credibility of the evidence presented
and questions whether the state met its burden of persuasion. See, e.g., State v. Richey,
10th Dist. No. 17AP-260, 2018-Ohio-3498, ¶ 50, citing Eastley v. Volkman,
132 Ohio St.3d
328,
2012-Ohio-2179, ¶ 11-13, citing State v. Thompkins,
78 Ohio St.3d 380, 386-87 (1997).
“Although evidence may be sufficient to sustain a guilty verdict, the issue of manifest weight
requires a different type of analysis.” State v. Walker, 10th Dist. No. 02AP-679, 2003-Ohio-
986, ¶ 43. “Weight of the evidence” concerns the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.
State v. Petty, 10th Dist. No. 15AP-950,
2017-Ohio-1062, ¶ 60, citing State v. Boone, 10th
Dist. No. 14AP-87,
2015-Ohio-2648, ¶ 49, citing
Thompkins at 387.
{¶ 125} When considering an appellant’s claim that a conviction is against the
manifest weight of the evidence, we sit as a “thirteenth juror” and may disagree “with the
factfinder’s resolution of the conflicting testimony.” Thompkins at 387, citing Tibbs v.
Florida,
457 U.S. 31, 42 (1982). See also State v. Martin, __ Ohio St.3d __, 2022-Ohio-
4175, ¶ 26. In making this determination, we must examine the entire record, weigh the
evidence and all reasonable inferences, consider the witnesses’ 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. See, e.g., Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-
Ohio-4153, ¶ 10;
Eastley at ¶ 20;
Thompkins at 387; Martin at ¶ 26.
{¶ 126} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding credibility of witnesses and the
weight of testimony are primarily for the trier of fact. See, e.g., State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus; Morris v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 20AP-131,
2021-Ohio-3803, ¶ 64, citing Watson v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 11AP-606,
2012-Ohio-1017, ¶ 31, citing Seasons Coal Co., Inc. v.
Cleveland,
10 Ohio St.3d 77, 80 (1984). See also State v. Brightwell, 10th Dist. No. 18AP-
No. 21AP-500 35
243,
2019-Ohio-1009, ¶ 33. The trier of fact is best able “to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co. at 80.
{¶ 127} This is a difficult burden for an appellant to overcome because the resolution
of factual issues resides with the trier of fact, DeHass at paragraph one of the syllabus, and
the trier of fact has the authority to “believe or disbelieve any witness or accept part of what
a witness says and reject the rest,” State v. Antill, 176 Ohio St. 61, 67 (1964). Further, to
reverse a jury verdict as being against the manifest weight of the evidence, a unanimous
concurrence of all three judges on the court of appeals panel reviewing the case is required
pursuant to Article IV, Section 3(B)(3) of the Ohio Constitution. Bryan-Wollman v.
Domonko,
115 Ohio St.3d 291,
2007-Ohio-4918, ¶ 2-4, citing Thompkins at paragraph four
of the syllabus.
2. Analysis
{¶ 128} Our analysis of appellant’s manifest weight challenge is limited to the
offenses charged in Counts 5, 7, 9, 11, and 12 for which he was sentenced, as Counts 6, 8,
10, and 13 were merged for purposes of sentencing.2 See State v. McKinney, 10th Dist. No.
08AP-23, 2008-Ohio-6522, ¶ 44. See also State v. Kpoto, 10th Dist. No. 19AP-492, 2020-
Ohio-3866, ¶ 13, 16-21.
{¶ 129} Counts 5 and 7 concerned rape by fellatio of a child under the age of 10, in
violation of R.C. 2907.02(A)(1)(b) and (B). Count 9 concerned rape by fellatio of a child
under the age of 13, in violation of R.C. 2907.02(A)(1)(b). Count 11 concerned attempted
rape by anal penetration of a child under the age of 13, in violation of R.C. 2907.02(A)(1)(b).
And Count 12 concerned sexual battery by fellatio, when appellant was the stepfather of
R.S., in violation of R.C. 2907.03(A)(5).
{¶ 130} Appellant’s manifest weight challenge pertains exclusively to the “sexual
conduct” element of these five counts. In his merit brief, he argues that since there was
conflicting testimony about the sexual conduct throughout the trial, his convictions were
against the manifest weight of the evidence. He contends the jury made inconsistent
2If we found appellant’s convictions under Counts 5, 7, 9, or 12 to be against the manifest weight of the
evidence, however, we would also evaluate the evidence underlying the offenses charged in Counts 6, 8, 10,
and 13. Such additional analysis is not necessary in this case.
No. 21AP-500 36
determinations of R.S.’s credibility because it found him not guilty of Counts 1 through 4
but guilty of all other counts. He proffers that “[t]he only major difference between the
counts for which [he] was convicted and those he was acquitted was [his] ability to disprove
the new accusations,” which formed the basis for Counts 1 through 4. (Appellant’s Brief at
40.) Appellant also argues R.S. presented conflicting testimony regarding the 2018
allegations (of which he was found not guilty) and the circumstances surrounding A.C.’s
presence in the home. (See Appellant’s Brief at 40-41.)
{¶ 131} While there was conflicting testimony presented at trial, a defendant “is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence was
presented.” State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. See also State
v. J.E.C., 10th Dist. No. 12AP-584,
2013-Ohio-1909, ¶ 42. The jury may consider conflicting
testimony from a witness in determining credibility and the persuasiveness of the account
by either discounting or otherwise resolving the discrepancies. State v. Taylor, 10th Dist.
No. 14AP-254,
2015-Ohio-2490, ¶ 34, citing Midstate Educators Credit Union, Inc. v.
Werner,
175 Ohio App.3d 288,
2008-Ohio-641, ¶ 28 (10th Dist.). “ ‘The finder of fact can
accept all, part or none of the testimony offered by a witness, whether it is expert opinion
or eyewitness fact, and whether it is merely evidential or tends to prove the ultimate fact.’ ”
Petty,
2017-Ohio-1062, at ¶ 63, quoting State v. Mullins, 10th Dist. No. 16AP-236, 2016-
Ohio-8347, ¶ 39.
{¶ 132} On review, we reject appellant’s claim that his convictions were against the
manifest weight of the evidence. Appellant’s manifest weight challenge hinges on R.S.’s lack
of credibility, but ignores other evidence presented at trial—specifically, his six recorded
conversations with A.C. When repeatedly questioned by A.C. about R.S.’s allegations,
appellant did not deny all of the acts of abuse she alleged. Instead, he minimized the
traumatic nature of the abuse (See, e.g., Trial Ex. E-1 at 9:55; Tr. Vol. II at 305-06; Trial Ex.
E-6 at 20:45) and claimed that only half of R.S.’s allegations were untrue (Trial Ex. E-1 at
10:05). Appellant also assured A.C. he would not “do this stuff again.” (Trial Ex. E-1 at 3:50;
Tr. Vol. II at 305. See also Trial Ex. E-5 at 10:50; Tr. Vol. II at 314.) And he suggested R.S.
was an active participant in the sexual encounters. (Trial Ex. E-2 at 7:43, 9:40, 11:50; Tr.
Vol. II at 307-08; Trial Ex. E-3 at 20:25.)
No. 21AP-500 37
{¶ 133} Appellant admitted to engaging in mutual oral sex with R.S. (Trial Ex. E-2 at
13:25; Tr. Vol. II at 308. See also Trial Ex. E-6 at 20:45.) And when A.C. asked him if R.S.
was still a virgin, appellant denied having sexual intercourse with R.S. (Trial Ex. E-2 at
13:00.) These statements do not contradict R.S.’s allegations and are consistent with the
state’s factual allegations underlying the offenses for which he was convicted. Counts 5, 7,
9, and 12 related to fellatio, and Count 11 alleged attempted anal penetration.
{¶ 134} “ ‘[W]here a factual issue depends solely upon a determination of which
witnesses to believe, that is the credibility of witnesses, a reviewing court will not, except
upon extremely extraordinary circumstances, reverse a factual finding … as being against
the manifest weight of the evidence.’ ” In re L.J., 10th Dist. No. 11AP-495, 2012-Ohio-1414,
¶ 21, quoting In re Johnson, 10th Dist. No. 04AP-1136,
2005-Ohio-4389, ¶ 26. The jury, as
trier of fact, was in the best position to consider the discrepancies in the testimony
regarding whether, when, and how often R.S. performed fellatio on appellant. The jury was
also in the best position to evaluate the credibility of R.S.’s testimony about appellant
attempting anal penetration.
{¶ 135} The jury was likewise free to disbelieve appellant’s statements as to when,
how often, what, or where the abuse occurred. And the jury was free to find appellant was
not a credible witness, as his trial testimony denying all sexual encounters with R.S. was
not consistent with his statements on the six recordings. For instance, in one recording,
appellant indicated the abuse happened after R.S. made the allegations about his son in
2014. (Trial Ex. E-1 at 11:10.) He told A.C. the encounters with R.S. began at their Chatterly
residence (Trial Ex. E-3 at 27:58; Tr. Vol. II at 311), and more specifically, in their living
room (Trial Ex. E-4 at 14:30) and their bedroom (see Trial Ex. E-6 at 17:23.). Appellant
explained why he engaged in sexual conduct with R.S. (Trial Ex. E-4 at 13:05, 17:10; Trial
Ex. E-3 at 27:55.)
{¶ 136} Given appellant’s inculpatory statements on the six recordings, we cannot say
this is one of the rare cases where the trier of fact clearly lost its way in believing R.S.’s
testimony that fellatio occurred between R.S. and appellant on multiple occasions, as was
alleged in Counts 5, 7, 9, and 12. Nor can we say the jury clearly lost its way in believing
R.S.’s testimony about the attempted anal rape alleged in Count 11.
No. 21AP-500 38
{¶ 137} Therefore, we conclude appellant’s convictions for Counts 5, 7, 9, 11, and 12
are not against the manifest weight of the evidence and overrule his sixth assignment of
error.
F. Seventh Assignment of Error
{¶ 138} In his seventh assignment of error, appellant contends the evidence at trial
was insufficient to support his convictions.
1. Controlling Law and Standard of Review
{¶ 139} The issue of whether the evidence is sufficient as a matter of law to support a
conviction involves a determination of whether the state met its burden of production at
trial. See, e.g., State v. Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786, ¶ 16; State v.
Frazier, 10th Dist. No. 05AP-1323,
2007-Ohio-11, ¶ 7; Thompkins,
78 Ohio St.3d at 386.
We do not weigh the evidence but instead determine “ ‘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.’ ” State v. Leonard,
104
Ohio St.3d 54,
2004-Ohio-6235, ¶ 77, quoting State v. Jenks,
61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. We essentially assume the state’s witnesses testified
truthfully and determine if that testimony satisfies each element of the crime. State v.
Watkins, 10th Dist. No. 16AP-142,
2016-Ohio-8272, ¶ 31, quoting State v. Hill, 10th Dist.
No. 07AP-889,
2008-Ohio-4257, ¶ 41. Thus, evidence is sufficient to support a conviction
where, if believed, that evidence would allow any rational trier of fact to conclude that the
state proved each element of the offense beyond a reasonable doubt. Frazier at ¶ 7, citing
Jenks at paragraph two of the syllabus.
2. Analysis
{¶ 140} Appellant generally contends Counts 5 through 13 are not supported by
sufficient probative evidence because no physical evidence of any offense was presented at
trial and R.S. was not a credible witness. (Appellant’s Brief at 44.) These arguments,
however, pertain not to the sufficiency of evidence, but to the manifest weight. Having
already overruled appellant’s manifest weight challenge in the sixth assignment of error,
this portion of his argument is not well-taken.
{¶ 141} Appellant also argues the state failed to present sufficient probative evidence
establishing R.S. was under the age of 10 for the rape by fellatio offense charged in Count 7
No. 21AP-500 39
to support the guilty verdict for the under-10 specification. (Appellant’s Brief at 42-44.) We
disagree.
{¶ 142} R.S. testified about sexual conduct (fellatio) that occurred at the family’s Bar
Harbor home multiple times. (Tr. Vol. II at 222-26.) She testified that she was 8 when she
moved to that residence and left “shortly after” her 10th birthday. (Tr. Vol. II at 223-26.)
A.C. testified the family lived at the Bar Harbor residence from October 2012 until
September/October 2014. (Tr. Vol. II at 289.) Because R.S. was born in June 2004, she was
under 10 for approximately 1 year and 8 months out of 2 years the family spent in that
home. R.S. described the acts as occurring many times, often, and for a duration of almost
7 years. (See, e.g., Tr. Vol. II at 218, 221-28, 231-34, 236-37, 239-40.) And R.S. testified that
appellant performed oral sex on her before she turned 10:
[STATE:] And what would he do once you were sitting on his
face?
[R.S.:] He would perform oral sex on me.
[STATE:] Okay. So his mouth was touching your vagina?
[R.S.:] Yes.
[STATE:] And that’s something that started once you moved
to Chatterly Lane?
[R.S.:] No, that would happen when we lived in Bar Harbor
too.
[STATE:] Okay. So it started before Chatterly Lane?
[R.S.:] Yes.
[STATE:] So that’s before you even turned 10?
[R.S.:] Yes.
(Tr. Vol. II at 228-29.)
{¶ 143} Construing the evidence in the light most favorable to the state, a reasonable
trier of fact could have found the state proved, beyond a reasonable doubt, that appellant
engaged in fellatio with R.S. when she was younger than the age of 10 based on R.S.’s
No. 21AP-500 40
testimony. Therefore, we conclude appellant’s conviction for Count 7 is supported by
sufficient evidence.
{¶ 144} For the foregoing reasons, appellant’s seventh assignment of error is
overruled.
G. Third Assignment of Error
{¶ 145} In his third assignment of error, appellant argues he received ineffective
assistance of counsel. Those arguments are not well-taken.
1. Controlling Law and Standard of Review
{¶ 146} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) counsel’s performance was deficient or objectively unreasonable, as
determined by “ ‘prevailing professional norms’ ” and (2) that the deficient performance of
counsel prejudiced the defendant. State v. Spaulding, 151 Ohio St.3d 378,
2016-Ohio-8126,
¶ 77, quoting Strickland v. Washington,
466 U.S. 668, 688, 694 (1984).
{¶ 147} To show that trial counsel’s performance was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show counsel’s actions were not trial strategies prompted by
reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong
presumption that all decisions fall within the wide range of reasonable professional
assistance. State v. Sallie,
81 Ohio St.3d 673, 675 (1998). Tactical or strategic decisions,
even if unsuccessful, do not generally constitute ineffective assistance of counsel. State v.
Frazier,
61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a
substantial violation of counsel’s essential duties to his client. See State v. Bradley,
42 Ohio
St.3d 136, 141-42 (1989).
{¶ 148} Prejudice results when “ ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Bradley at 142, quoting
Strickland at 694. “ ‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ”
Id., quoting
Strickland at 694.
{¶ 149} When analyzing an ineffective assistance of counsel claim, an appellate court
“need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland at
697. See also State v. Wade, 10th Dist. No. 20AP-456,
2021-Ohio-4090, ¶ 19. “If it is easier
No. 21AP-500 41
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice … that
course should be followed.”
Strickland at 697.
2. Analysis
{¶ 150} Appellant asserts his trial counsel was ineffective in three ways: (1) failing to
object to the introduction of prior bad acts of domestic violence; (2) failing to request an
“other acts” instruction, as contemplated by State v. Hartman, 161 Ohio St.3d 214, 2020-
Ohio-4440; and (3) failing to object to the presentation and admission of the entire
Nationwide CAC report without redactions. (Appellant’s Brief at 28-34.) Additionally,
appellant asserts the cumulative effect of counsel’s alleged errors rendered his trial counsel
ineffective.
{¶ 151} As to the merits of each ineffective assistance allegation, the state argues
appellant fails to rebut the presumption that his trial counsel provided him with adequate
representation. The state also contends that appellant has failed to demonstrate how he
was prejudiced by any of the alleged errors individually or cumulatively.
a. Failure to object to testimony and evidence about prior bad
acts of domestic violence
{¶ 152} Appellant first alleges his attorney was ineffective for failing to object to the
introduction of irrelevant and inadmissible prior bad acts evidence presented to the jury
through the testimony of R.S., Alicia Daniels (the forensic interviewer at Nationwide
Children’s Hospital), and A.C., and through State’s Exhibit B (Ms. Daniels’s report). This
evidence pertained to the allegation that appellant previously committed domestic violence
against his wife.
{¶ 153} While explaining her strained relationship with A.C., R.S. stated: “There was
always a fight or [appellant] would hit [A.C.]. You would hear her screaming from
downstairs. We just -- we weren’t allowed to have any kind of connection with her or each
other.” (Tr. Vol. II at 251.) A.C. testified that appellant “was arrested for assaulting” her.
(Tr. Vol. II at 294.) And Ms. Daniels testified that, in her forensic interview, R.S. “talked
about exposure to some domestic violence from her stepfather towards her mother,”
“physical abuse from her stepfather towards her siblings,” physical abuse towards herself,
and “a lot of emotional maltreatment.” (Tr. Vol. III at 359.) Ms. Daniels’s report also
No. 21AP-500 42
reflected a history of domestic violence in the home. (Trial Ex. B at 4, 27, 44, 52.) No specific
details about the domestic violence were presented at trial.
{¶ 154} Relevant evidence is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Evid.R. 401. “Evidence which is not
relevant is not admissible.” Evid.R. 402. “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Evid.R. 404(B). However, this evidence may be relevant for other purposes,
such as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id.; accord R.C. 2945.59. The list of permitted purposes in
Evid.R. 404(B) is not exhaustive. State v. Morris, 132 Ohio St.3d 337,
2012-Ohio-2407,
¶ 18. Rather, “evidence of other crimes, wrongs, or acts may be admissible for any purpose
material to the issue of guilt or innocence, as long as it is not being introduced for the
purpose of showing the accused’s propensity to commit bad acts.” State v. Boles,
187 Ohio
App.3d 345,
2010-Ohio-278, ¶ 49 (2d Dist.). But, even if evidence is relevant, it is not
admissible “if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).
{¶ 155} Appellant concedes in his brief that “the claims of domestic violence[,] [at
most,] help form the background and explain why there was a lack of reporting on behalf
of R.S.” (Appellant’s Brief at 28.) Thus, he arguably concedes the evidence was relevant
under Evid.R. 401.
{¶ 156} Ultimately, appellant argues his trial counsel’s failure to object to this
evidence under Evid.R. 403 constituted deficient performance. Generally, he contends that
the brief and vague reference to these prior domestic violence incidents tainted the jury’s
perception of him. (Appellant’s Brief at 29.) Again, appellant concedes relevance but asserts
such evidence was unfairly prejudicial. Given that there were only four references to this
other-acts evidence over the course of a four-day trial, and that these references were not
descriptive and did not amount to anything more than a brief mention of the prior history,
we find that trial counsel’s objection to such testimony and evidence would have been futile
and not likely sustained if made.
No. 21AP-500 43
{¶ 157} Defense counsel’s failure to object to admissible evidence does not constitute
deficient performance under Strickland. See, e.g., State v. Tyler, 10th Dist. No. 05AP-989,
2006-Ohio-6896, ¶ 40. “Counsel is certainly not deficient for failing to raise a meritless
issue.” State v. Issa,
93 Ohio St.3d 49, 68 (2001). Appellant has failed to demonstrate that
an objection to this other-acts evidence would have been successful; thus, we find he has
not demonstrated deficient performance.
{¶ 158} And, assuming arguendo that the challenged other-acts evidence was
inadmissible, “[f]ailure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.” State v. Holloway, 38 Ohio St.3d 239, 244 (1988). See
also State v. Pawlak, 8th Dist. No. 99555,
2014-Ohio-2175, ¶ 81-83; State v. Taylor, 10th
Dist. No. 12AP-870,
2013-Ohio-3699, ¶ 33-35. As the Supreme Court of Ohio has explained:
“[E]xperienced trial counsel learn that objections to each
potentially objectionable event could actually act to their
party’s detriment. … In light of this, any single failure to
object usually cannot be said to have been error unless the
evidence sought is so prejudicial … that failure to object
essentially defaults the case to the state. Otherwise, defense
counsel must so consistently fail to use objections, despite
numerous and clear reasons for doing so, that counsel’s failure
cannot reasonably have been said to have been part of a trial
strategy or tactical choice.”
State v. Johnson, 112 Ohio St.3d 210,
2006-Ohio-6404, ¶ 140, quoting Lundgren v.
Mitchell,
440 F.3d 754, 774 (6th Cir.2006).
{¶ 159} In this case, defense counsel’s failure to object can be reasonably viewed as
trial strategy or tactical choice. This was a situation where a single offhand reference was
made to domestic violence on a few independent occasions. The reference was not detailed
and, once it was made by the witness, the prosecutor did not pursue any additional inquiry
about the topic. Objecting in each of these separate instances could have brought a
heightened awareness to the testimony—something trial counsel might have intended to
avoid. Accordingly, we find trial counsel’s failure to object to minor references such as those
presented here, even if erroneous, may have been a reasonable tactical choice. For these
reasons, we conclude counsel’s failure to object to this other-acts evidence did not
constitute deficient performance.
No. 21AP-500 44
{¶ 160} Moreover, appellant fails to demonstrate prejudice, or a reasonable
probability that, but for his trial counsel’s failure to object to these brief and non-descriptive
references to alleged domestic violence incidents between appellant and A.C., the result of
the proceeding would have been different. Appellant broadly contends that “[t]he repeated
introduction of [this other-acts evidence] tainted the [jury’s] view of [him],” and cast him
“as someone prone to commit crime.” (Appellant’s Brief at 29.) However, the jury’s verdict,
which included acquittals on four counts, belies his claim that the admission of irrelevant
and inadmissible other-acts evidence generally tainted the jury’s view of him, so as to satisfy
Strickland’s prejudice prong.3 See, e.g., State v. Gardner, 2d Dist. No. 21357, 2010-Ohio-
6479, ¶ 33.
{¶ 161} Additionally, the state produced ample evidence supporting the counts of
which the jury found appellant guilty. R.S. provided direct testimony of appellant’s sexual
conduct and provided a description of appellant’s penis that was consistent with A.C.’s
description. And, importantly, the state played six recordings containing appellant’s
inculpatory statements, acknowledgments, and admissions relating to the sexual conduct
R.S. described. On those six recordings, appellant never expressly denied engaging in any
sexual encounters with R.S. He admitted to some (namely, mutual oral sex), told A.C. where
the first encounter happened (living room of their Chatterly residence), informed A.C.
where other encounters occurred (the marital bed, for instance), justified his actions (e.g.,
he was fighting with A.C. and R.S. was not innocent), and repeatedly apologized for his
actions. Although appellant unequivocally denied all allegations in his trial testimony, his
credibility was undoubtedly undermined by the inculpatory statements he made on those
3 The state also generally posits appellant’s trial counsel was “obviously somewhat effective, as the jury
acquitted [appellant] on some counts.” (See Appellee’s Brief at 21.) Fundamentally, we caution against the
notion that an acquittal on some counts is inherently indicative of trial counsel’s effective performance
under Strickland as to all counts. For instance, in Pawlak, 2014-Ohio-2175, the defendant was charged
in a 26-count indictment with offenses related to 5 different victims. Notwithstanding the state’s voluntary
dismissal of 3 counts, the trial court’s judgment of acquittal on 4 counts pursuant to defense counsel’s
Crim.R. 29 motion, and the jury’s acquittal of the defendant on 12 counts, the Eighth District found that
numerous errors made by defense counsel during trial constituted ineffective assistance of counsel,
sustained the assigned errors, and ordered a new trial. See also State v. Smith, 2d Dist. No. 2003-CA-23,
2004-Ohio-665.
No. 21AP-500 45
six recordings. Accordingly, in light of this evidence, we do not believe trial counsel’s failure
to object to the other-acts evidence impacted the outcome of appellant’s trial.
{¶ 162} Based on the foregoing, we find trial counsel’s failure to object to other-acts
evidence concerning prior domestic violence against A.C. did not constitute ineffective
assistance of counsel.
b. Failure to request an other-acts evidence limiting instruction
{¶ 163} Appellant also contends his trial counsel’s failure to request a limiting
instruction concerning the other-acts evidence constituted ineffective assistance of counsel.
As appellant notes, when other-acts evidence is presented at trial, “ ‘a court should explain
both the specific purpose for which the evidence may be considered and the rationale for
its admission on the record.’ ” (Appellant’s Brief at 30, quoting Hartman, 2020-Ohio-4440
at ¶ 34.)
{¶ 164} Such instruction is given, where appropriate, to mitigate the risk of a jury
using such evidence improperly. The Supreme Court has cautioned trial courts, however,
about giving such limiting instruction sua sponte any time other-acts evidence is presented
at trial. “Depending on the nature of the other-acts evidence and the context in which it is
used, defense counsel may as a matter of strategy wish to avoid highlighting the evidence
for the jury.” Hartman at ¶ 67, citing State v. Schaim,
65 Ohio St.3d 51, 61 (1992), fn. 9
(“the decision not to request a limiting instruction is sometimes a tactical one, and we do
not wish to impose a duty on the trial courts to read this instruction when it is not
requested”).
{¶ 165} As courts, including this one, have recognized, trial counsel may decide, as a
matter of trial strategy, not to request a limiting instruction due to concerns that a limiting
instruction “will only emphasize in the juror’s minds the evidence of other criminal acts
committed by the defendant, thereby reinforcing the prejudice.” Strongsville v. Sperk, 8th
Dist. No. 91799, 2009-Ohio-1615, ¶ 38. See State v. Hester, 10th Dist. No. 02AP-401, 2002-
Ohio-6966, ¶ 15 (“Counsel may have declined to request a limiting instruction regarding
appellant’s prior convictions out of concern that, if such an instruction were given, the prior
convictions would be once again called to the jury’s attention.”). The defense’s trial strategy
in this case was to undermine the credibility of R.S. and A.C., emphasize the lack of physical
evidence, even with appellant’s cooperation, and add context to the inculpatory statements
No. 21AP-500 46
appellant made on the six recordings. Given the brief, vague, and infrequent references to
prior domestic violence incidents involving A.C., we find the decision not to request a
limiting instruction was consistent with the trial strategy of appellant’s trial counsel.
{¶ 166} Moreover, as described in the previous section, the state produced ample
evidence supporting all counts on which appellant was convicted, including testimony from
R.S. and inculpatory statements made by appellant conceding he engaged in some sexual
conduct with R.S. Accordingly, we do not find his trial counsel’s failure to request a limiting
instruction impacted the outcome of trial.
{¶ 167} Based on the foregoing, we find appellant fails to demonstrate either the
deficient performance or prejudice Strickland requires to support this allegation of
ineffective assistance of counsel.
c. Allowing the full Nationwide CAC report to be presented and
admitted as evidence without redactions
{¶ 168} Appellant also argues his trial counsel was ineffective in failing to object to
the presentation and admission of the entire Nationwide CAC report (Trial Ex. B), without
redactions. (Appellant’s Brief at 29-30.) He specifically takes issue with two sections, and
generally alleges that “[m]any of the statements found in the report cannot be attributed to
seeking medical treatment” under Evid.R. 803(4). (See id.) Our analysis is limited to the
specific passages appellant identifies in his brief. See, e.g., State v. C.C.B., 10th Dist. No.
18AP-782, 2019-Ohio-3631, ¶ 38, citing In re L.W., 10th Dist. No. 17AP-587, 2018-Ohio-
2099, ¶ 46; App.R. 16(A)(7).
{¶ 169} At oral argument before this court, the state conceded that not all statements
contained in the Nationwide CAC report were admissible as statements for purposes of
medical diagnosis or treatment under Evid.R. 803(4). The state also agreed the Nationwide
CAC report should not have been admitted in its entirety and that some of the extraneous
statements should have been redacted. Nonetheless, the state maintains that appellant fails
to demonstrate that his trial counsel was ineffective for failing to object to the admission of
the entire report or that the improper admission of this unredacted report affected the
outcome of trial.
{¶ 170} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
No. 21AP-500 47
the matter asserted.” Hearsay is generally inadmissible unless an exception applies. Evid.R.
802. Pertinent here, Evid.R. 803 excludes various items from the hearsay rule, “even
though the declarant is available as a witness,” including “[s]tatements made for purposes
of medical diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment.” Evid.R. 803(4).
The term “medical diagnosis” in Evid.R. 803(4) includes a mental health diagnosis. State
v. R.L.R., 10th Dist. No. 18AP-971, 2020-Ohio-4577, ¶ 16, citing In re S.A., 12th Dist. No.
CA2017-07-092,
2017-Ohio-8792, ¶ 41. See also State v. Arnold,
126 Ohio St.3d 290, 2010-
Ohio-2742, ¶ 33-44.
{¶ 171} “ ‘[Evid. R.] 803(4) encompasses statements made by persons who bring the
patient to the hospital or doctor’s office, as long as the third person's statements are in
subjective contemplation of treatment or diagnosis. … Where, however, circumstances
indicate the third [person] is merely speculating as to facts relating to the injury, exclusion
may be warranted since the essential element of reliability is not present.’ ” State v.
Thompson, 2d Dist. No. 22984, 2010-Ohio-1680, ¶ 24, quoting Weissenberger’s Ohio
Evidence Courtroom Manual 583 (2008). See also State v. Airwyke, 11th Dist. No. 2006-
T-0073,
2007-Ohio-3199, ¶ 21. The hearsay exception provided by Evid.R. 803(4) is limited
to those statements made by the patient (or third party who brought the patient to the
medical facility) which are reasonably pertinent to an accurate diagnosis and should not be
a conduit through which matters of no medical significance would be admitted. State v.
Boston,
46 Ohio St.3d 108, 121 (1989).
{¶ 172} First, appellant takes issue with some of the “order comments” in the
“Referral to Behavioral Health/Psychiatry/Psychology” section of that report, which
describe R.S.’s “pertinent past history” as follows:
“Chronic exposure to DV against mother by her biofather and
stepfather. Family currently in fear of being killed by
stepfather[] now that patient has disclosed. She was sexually
abused by stepfather’s son in the past, and she was seen in 2014
in our CAC for that at the time. The stepfather’s son is serving
prison time currently for the crime. Patient did not disclose
about stepfather until today (8/7); however, they were both
No. 21AP-500 48
sexually abusing her during the same time periods. Stepfather
continued after the stepbrother was incarcerated.”
(Appellant’s Brief at 29, quoting Trial Ex. B at 18.)
{¶ 173} Appellant concedes the rule permits Dr. Brink to “repeat the allegations made
by R.S., assuming they were for the purpose of medical treatment,” but takes issue with the
fact that this paragraph is Dr. Brink’s summary of R.S.’s responses during her forensic
interview at Nationwide CAC—i.e., they are not framed as the “words of R.S.” (Appellant’s
Brief at 29.) He contends this paragraph contains an out-of-court statement “made by a
medical professional that [improperly] asserts that a crime—the one [appellant] is on trial
for—occurred.” (Appellant’s Brief at 29.) Since this paragraph is designated as R.S.’s
“pertinent past history,” however, it can be inferred that the information in this paragraph
came from statements made by R.S. (or A.C.) for purposes of medical treatment and
diagnosis. And because this paragraph is included as part of Dr. Brink’s referral of R.S. to a
mental health provider, context clearly indicates it reflects a summary of information
obtained from R.S. and A.C. that Dr. Brink believed was pertinent to this referral—not an
improper opinion that the charged offenses actually occurred. Accordingly, this argument
is not well-taken.
{¶ 174} Appellant also argues this paragraph improperly “states, as fact, that the
family is now in fear of [being killed by] him,” which he claims “implies that [appellant] has
a guilty consci[ence].” (Appellant’s Brief at 29-30.) Without further explanation, we cannot
ascertain how the former implies the latter. In any event, we agree that information about
the family’s fear of appellant killing them was arguably not made for purposes of R.S.’s
medical treatment and diagnosis. It was thus not admissible under Evid.R. 803(4). Finding
this statement to be inadmissible hearsay, a pretrial motion to suppress this statement (or
objection at trial) would not have been futile and would likely have been sustained if made,
as there would be no justification for its admission. Accordingly, we must next consider
whether failing to object constituted deficient performance.
{¶ 175} Failing to object to irrelevant and prejudicial testimony may sometimes be
viewed as tactical. In this case, however, counsel’s failure to seek exclusion of the statement
that the family is afraid appellant will kill them cannot reasonably be viewed as trial strategy
or tactical choice. Defense counsel had this report prior to trial. We acknowledge that there
No. 21AP-500 49
may be strategy involved in an attorney’s decision not to object to evidence during trial; but,
in this case, that would not have been necessary. A pretrial suppression motion could have
been filed, or defense counsel could have moved for redaction of this statement outside of
the presence of the jury. Thus, we find there was no tactical reason to acquiesce to its
inclusion in the admitted report.
{¶ 176} Appellant argues prejudice under Strickland by claiming the paragraph’s
reference to domestic violence and his family fearing him “created a propensity inference
that [appellant] commits crimes against his family.” (Appellant’s Brief at 30.) Even
assuming that to be true, we find appellant cannot demonstrate there is a reasonable
probability the outcome of the trial would have been different if these two statements had
been excluded from the report. The state presented ample evidence of guilt, including
numerous inculpatory statements made by appellant on the six recordings, R.S.’s direct
testimony of appellant’s sexual conduct with her, and R.S.’s ability to provide a description
of appellant’s penis that was consistent with A.C.’s description. Trial counsel’s failure to
seek suppression of two sentences typed in a small font size and buried in a paragraph on a
page in the middle of the 53-page exhibit does not amount to the prejudice required by
Strickland.
{¶ 177} We find that all other statements in this paragraph were made for purposes
of—and are reasonably pertinent to—R.S.’s mental health medical treatment and diagnosis.
Thus, they fall within Evid.R. 803(4)’s hearsay exception. Based on the forgoing, we find
appellant fails to demonstrate that an objection to Dr. Brink’s summary of the allegations
R.S. made against him would have been successful. Failure to object to admissible evidence
does not constitute deficient performance of counsel under Strickland. See Tyler, 2006-
Ohio-6896 at ¶ 40; Taylor, 78 Ohio St.3d at 31. Moreover, for the same reasons described
above, he cannot demonstrate that the failure to suppress these statements prejudiced him.
{¶ 178} Based on the foregoing, we conclude that defense counsel’s failure to seek
exclusion of this paragraph in the Nationwide CAC report did not constitute ineffective
assistance.
No. 21AP-500 50
{¶ 179} Second, appellant takes issue with a sentence in the “Interview Summary”
section authored by Ms. Daniels4 stating: “The child’s disclosure at the Child Assessment
Center was clear, coherent, and consistent.” (Appellant’s Brief at 30, citing Trial Ex. B at 8.)
Of note, Ms. Daniels was not asked about this statement in the report during her trial
testimony. Appellant argues his trial counsel was ineffective in failing to seek excision of
this statement from the Nationwide CAC report because it improperly reflected Ms.
Daniels’s opinion about the veracity of R.S.’s statements. (Appellant’s Brief at 30.)
{¶ 180} The Supreme Court has held that an expert witness may not testify as to their
opinion of the veracity of a child declarant. Boston at 128-29. More generally, an expert
may not provide opinion testimony regarding the truth of a witness’s statements or
testimony. State v. Stowers,
81 Ohio St.3d 260, 262 (1998). Such testimony is
presumptively prejudicial and inadmissible because it “ ‘infringe[s] upon the role of the fact
finder, who is charged with making determinations of veracity and credibility.’ ”
Boston at
128-29, quoting State v. Eastham,
39 Ohio St.3d 307, 312 (1988) (Brown, J., concurring).
However, an expert may provide testimony that supports “the truth of the facts testified to
by the child, or which assists the fact finder in assessing the child's veracity.” (Emphasis
deleted.)
Stowers at 262-63. This testimony “ ‘does not usurp the role of the jury, but rather
gives information to a jury which helps it make an educated determination.’ ”
Id. at 263,
quoting State v. Gersin,
76 Ohio St.3d 491, 494 (1996). See also State v. Sayles, 8th Dist.
No. 108524,
2020-Ohio-5508, ¶ 37-40.
{¶ 181} Here, we conclude Ms. Daniels’s statement in the Nationwide CAC report that
R.S.’s account was “clear, coherent, and consistent” does not amount to an opinion on the
veracity of R.S.’s allegations. Rather, Ms. Daniels’s impression that R.S. gave a “clear,
coherent, and consistent” statement is admissible information that can help the jury make
an educated determination about the manner in which R.S. recounted her story and did not
improperly vouch for R.S.’s credibility. Accordingly, because the testimony was permissible
under Boston and Stowers, we find trial counsel was not ineffective for failing to object to
this statement in the Nationwide CAC report.
4In his brief, appellant attributes this statement to Dr. Brink. However, this statement was made by Alicia
Daniels, the licensed social worker who conducted the forensic interview of R.S.
No. 21AP-500 51
{¶ 182} Even if counsel were deficient in failing to object to this statement in Ms.
Daniels’s report—which she was not asked about at trial—appellant has not demonstrated
how he was prejudiced by the deficient performance such that the result of the trial could
have been different. R.S. testified about the sexual encounters at trial. The state also
presented evidence and testimony relating to the statements R.S. made about the sexual
abuse in 2018 when she reported it. Thus, the jury was able to make its own determination
during the trial as to whether R.S.’s statements were clear, coherent, and consistent for
purposes of assessing her credibility. Accordingly, we find that appellant was not deprived
of effective assistance of counsel when his counsel failed to object to the admission of the
full Nationwide CAC report on the basis of this statement.
d. Cumulative Error
{¶ 183} Finally, appellant argues his counsel was ineffective based on the cumulative
effect of his errors during the trial. “Under this 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.
Graham, 164 Ohio St.3d 187,
2020-Ohio-6700, ¶ 169. See also State v. C.D.S., 10th Dist.
No. 20AP-355,
2021-Ohio-4492, ¶ 112. As applied to a claim for ineffective assistance of
counsel, “[e]ach assertion of ineffective assistance of counsel going to cumulative error
depends on the merits of each individual claim; when none of the individual claims of
ineffective assistance of counsel have merit, cumulative error cannot be established simply
by joining those meritless claims together.”
Graham at ¶ 170, citing State v. Hill,
75 Ohio
St.3d 195 (1996).
{¶ 184} We have already concluded that appellant has failed to demonstrate his trial
counsel committed multiple errors under the performance prong of Strickland. Thus, in
the absence of establishing that multiple errors were committed by his counsel at trial, he
cannot establish cumulative error. Appellant has not, with these arguments, carried the
burden of establishing an ineffective assistance of counsel claim on appeal. See State v.
Gear, 3d Dist. No. 15-22-03, 2023-Ohio-1246, ¶ 59. Because all of his individual claims of
ineffective assistance of counsel, with the exception of one (sentence in the report
concerning the family’s fear of appellant), are without merit as to deficient performance,
we find he has failed to show cumulative error sufficient to reverse his convictions.
No. 21AP-500 52
{¶ 185} Even assuming we found appellant’s ineffective assistance allegations, when
considered in the aggregate, amount to deficient performance of his trial counsel, we
nonetheless find he cannot demonstrate the prejudice necessary under Strickland. This is
because the state produced ample evidence of his guilt at trial. R.S. testified about the sexual
encounters she had with him and described appellant’s penis in a manner consistent with
A.C.’s description of it. In the six recorded conversations between appellant and A.C.,
appellant never expressly denied having any sexual encounters with R.S. Instead, the jury
heard appellant admit to engaging in some sexual conduct with R.S. (namely, mutual oral
sex), describe where the first encounter occurred (living room of their Chatterly residence)
and where others took place (the marital bed, for instance). The jury also heard him justify
(e.g., he was fighting with A.C. and R.S. was not innocent) and apologize for his actions.
Even if none of the performance errors appellant alleges occurred, we do not believe, in
light of this inculpatory evidence, it is reasonably probable the outcome of his trial would
have been different.
{¶ 186} Based on the foregoing, we find that appellant is unable to demonstrate
ineffective assistance of counsel. Accordingly, we overrule his third assignment of error.
IV. CONCLUSION
{¶ 187} Having overruled appellant’s seven assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
