State v. Furman

[Cite as State v. Furman, 

.]



               IN THE COURT OF APPEALS OF OHIO
                           ELEVENTH APPELLATE DISTRICT
                               ASHTABULA COUNTY

STATE OF OHIO,                                   CASE NO. 2022-A-0029

                Plaintiff-Appellee,
                                                 Criminal Appeal from the
        -v-                                      Court of Common Pleas

JOHN FURMAN,
                                                 Trial Court No. 2020 CR 00577
                Defendant-Appellant.


                                             OPINION

                                     Decided: August 28, 2023
                                         Judgment: Affirm


Colleen M. O’Toole, Ashtabula County Prosecutor, and Michael J. Bodyke, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson OH 44047 (For Plaintiff-Appellee).

Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).


EUGENE A. LUCCI, J.

        {¶1}    Appellant, John Furman, appeals his convictions for kidnapping, rape, and

domestic violence following a jury trial. We affirm.

        {¶2}    In December 2020, Furman was indicted on the following charges resulting

from allegations that on two separate dates he had kidnapped, assaulted, and raped his

wife: (1) kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(4) and (C)(1),

with a sexual motivation specification pursuant to R.C. 2941.147(A); (2) rape, a first-

degree felony in violation of R.C. 2907.02(A)(2) and (B); (3) domestic violence, a third-

degree felony, in violation of R.C. 2919.25(A); (4) kidnapping, a first-degree felony, in
violation of R.C. 2905.01(A)(4) and (C)(1), with a firearm specification pursuant to R.C

2941.145(A), and a sexual motivation specification pursuant to R.C. 2941.147(A); (5)

rape, a first-degree felony, in violation of R.C. 2907.02(A)(2) and (B), with a firearm

specification pursuant to R.C. 2941.145(A); and (6) domestic violence, a third-degree

felony, in violation of R.C. 2919.25(A) and (D)(4), with a firearm specification pursuant to

R.C. 2941.145(A). The first three of these charges pertained to incidents alleged to have

occurred on or about October 23, 2020. The latter three charges pertained to incidents

alleged to have occurred on or about October 29, 2020.

        {¶3}    Following the filing of the indictment, the state moved for a competency

evaluation. The issue of Furman’s competency to stand trial was ongoing throughout

much of the trial court’s proceedings. On November 1, 2021, the trial court issued an

entry deeming Furman competent to stand trial.

        {¶4}    Prior to the competency determination, on September 16, 2021, Furman

moved to dismiss, arguing that his speedy trial time had elapsed.1 The state responded

in opposition. Ultimately, the trial court overruled the motion.

        {¶5}    The case proceeded to jury trial. The jury acquitted Furman on the first

three charges, which pertained to the October 23, 2020 incidents. The jury found Furman

guilty of the following with respect to the October 29, 2020 incidents: kidnapping and the

attendant sexual motivation specification, rape, and domestic violence. The trial court

referred Furman for a presentence investigation and report, ordered the parties to prepare

sentencing briefs, and set the matter for sentencing.




1. In a magistrate’s order issued following the arraignment, the magistrate noted that “A Time Waiver was
executed by the Defendant.” However, no time waiver appears in the record.
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Case No. 2022-A-0029
       {¶6}   At sentencing, the trial court sentenced Furman to 10 years of imprisonment

on the kidnapping count, a minimum of 10 years of imprisonment on the rape count, and

24 months of imprisonment on the domestic violence count. The court ordered the

kidnapping and rape sentences to run consecutively and the domestic violence count to

run concurrently, for a minimum aggregate prison term of 20 years to a maximum term of

25 years.

       {¶7}   In his first assigned error, Furman contends:

       {¶8}   “Furman was denied his constitutional and statutory rights to a speedy trial.”

       {¶9}   “The right to a speedy trial is set forth in the Sixth Amendment to the United

States Constitution and is obligatory on the states via the Fourteenth Amendment.” State

v. Sitko, 11th Dist. Trumbull No. 2020-T-0016, 

, citing State v.

Broughton, 

, 

 (1991). “‘Speedy-trial issues present

mixed questions of law and fact.’” Sitko at ¶ 36, quoting State v. Kist, 

, 

, 

 (11th Dist.). “When reviewing a defendant’s

claim that he or she was denied the right to a speedy trial, we apply a de novo standard

of review to questions of law and the clearly erroneous standard to questions of fact.”

Sitko at ¶ 36, citing State v. Evans, 11th Dist. Trumbull No. 2003-T-0132, 2005-Ohio-

1787, ¶ 32.

       {¶10} Pursuant to R.C. 2945.71(C)(2), a person charged with a felony must be

brought to trial within 270 days of that person’s arrest. For purposes of computing this

time, each day that “the accused is held in jail in lieu of bail on the pending charge shall

be counted as three days.” R.C. 2945.71(E).



                                             3

Case No. 2022-A-0029
       {¶11} R.C. 2945.72 extends the time that an accused must be brought to trial for

the following periods:

              (A) Any period during which the accused is unavailable for
              hearing or trial, by reason of other criminal proceedings
              against the accused, within or outside the state, by reason of
              confinement in another state, or by reason of the pendency of
              extradition proceedings, provided that the prosecution
              exercises reasonable diligence to secure availability of the
              accused;

              (B) Any period during which the accused is mentally
              incompetent to stand trial or during which the accused’s
              mental competence to stand trial is being determined, or any
              period during which the accused is physically incapable of
              standing trial;

              (C) Any period of delay necessitated by the accused’s lack of
              counsel, provided that such delay is not occasioned by any
              lack of diligence in providing counsel to an indigent accused
              upon the accused’s request as required by law;

              (D) Any period of delay occasioned by the neglect or improper
              act of the accused;

              (E) Any period of delay necessitated by reason of a plea in
              bar or abatement, motion, proceeding, or action made or
              instituted by the accused;

              (F) Any period of delay necessitated by a removal or change
              of venue pursuant to law;

              (G) Any period during which trial is stayed pursuant to an
              express statutory requirement, or pursuant to an order of
              another court competent to issue such order;

              (H) The period of any continuance granted on the accused’s
              own motion, and the period of any reasonable continuance
              granted other than upon the accused’s own motion;

              (I) Any period during which an appeal filed pursuant to section
              2945.67 of the Revised Code is pending;

              (J) Any period during which an appeal or petition for a writ filed
              pursuant to section 2930.19 of the Revised Code is pending.
                                              4

Case No. 2022-A-0029
      {¶12} Here, Furman maintains that he was arrested on November 17, 2020;

however, the Ashtabula Municipal Court’s entry issued prior to this matter being bound

over to the grand jury indicates that Furman was arrested on October 30, 2020, and, on

appeal, the state acknowledges that Furman was arrested on October 30, 2020. Thus,

the speedy trial time commenced on October 31, 2020, the day after Furman’s arrest.

See Evans, 

 (the day of the arrest is not counted in the speedy

trial time). The record does not indicate that Furman posted bond to secure any pretrial

release. “[F]or purposes of Ohio’s speedy trial statute, a trial commences when voir dire

begins.” State v. Knight, 2d Dist. Greene No. 2003 CA 14, 

. The

transcript indicates that voir dire commenced on February 14, 2022, long past the first 90

days Furman spent in pretrial confinement.

      {¶13} However, the state maintains that several tolling events occurred which

extended the speedy trial time. First, pursuant to R.C. 2945.72(E), speedy trial time was

tolled commencing the day following defense counsel’s motion to reduce bond on

November 5, 2020. State v. Toler, 4th Dist. Ross No. 09CA3103, 

, ¶ 19

(“[W]e do not include the date a motion was filed when calculating speedy trial time,

unless that date also was the date the court entered an order resolving the motion.”).

Shortly thereafter, on November 12, 2020, the defense moved for a transcript, which

continued the tolling period. The municipal court denied the motion to reduce bond on

November 13, 2020; however, the tolling period continued until the transcript was

completed, which the state maintains, and Furman does not dispute, occurred on

December 14, 2020.


                                             5

Case No. 2022-A-0029
         {¶14} After the case was bound over to the trial court, Furman requested

discovery and a bill of particulars on December 21, 2020, which the state supplied on

December 29, 2020. Thus, speedy trial time was again tolled from December 22, 2020

through December 29, 2020, pursuant to R.C. 2945.72(E). See State v. Rivera, 11th Dist.

Ashtabula No. 2011-A-0023, 

, ¶ 20; and State v. Brown, 

, 

, 

 (“A demand for discovery or a bill of

particulars is a tolling event pursuant to R.C. 2945.72(E).”).

         {¶15} Next, Furman’s competency was questioned by the state through its motion

filed on January 8, 2021.       On January 15, 2021, the trial court ordered Forensic

Psychiatric Center of Northeast Ohio, Inc. to conduct the evaluation and prepare a written

statement. Thereafter, a hearing was held due to Furman’s refusal to participate in the

evaluation, eventually resulting in the trial court ordering competency to be determined

through a 20-day inpatient evaluation. The evaluation determined that Furman was

competent to stand trial, but, because Furman refused to stipulate to the report, the trial

court set the matter for further hearing to allow the evaluating doctor to testify. After this

hearing, the court found Furman competent to stand trial in a November 1, 2021 judgment

entry.

         {¶16} R.C. 2945.72(B) thus operated to toll the speedy trial time during the period

“which [Furman’s] mental competence to stand trial [was] being determined.” In State v.

Palmer, 

, 

 (1998), paragraph one of the syllabus,

the Ohio Supreme Court held that the tolling provision of R.C. 2945.72(B) commences

from the date the accused files the motion to determine competency. Unlike Palmer,

here, the state, not the accused, moved for a competency evaluation. Furman contends

                                              6

Case No. 2022-A-0029
that because he did not move for the evaluation, and he was competent to stand trial, the

speedy trial time should not have been tolled. However, pursuant to R.C. 2945.72(B),

speedy-trial time is tolled for “[a]ny period during which the accused is mentally

incompetent to stand trial or during which his mental competence to stand trial is being

determined[.]” (Emphasis added.) See State v. Saunders, 

, 

 (2d Dist.), citing State v. Ridley, 6th Dist. Lucas No. L-10-1314, 2013-Ohio-

1268, ¶ 19, citing State v. Patton, 10th Dist. Franklin No. 08AP-800, 

 (“Although [the defendant] did not seek the competency evaluation, tolling

nevertheless applied provided that the trial court did not abuse its discretion in sustaining

the State’s motion and ordering an evaluation.”).                 While Furman maintains that the

evaluation was unnecessary, he has not advanced an argument on appeal that the trial

court abused its discretion in granting the state’s motion to determine his competency.

        {¶17} Accordingly, the speedy trial time was tolled from January 9, 2020 through

November 1, 2021, when the court determined that Furman was competent to stand trial.

        {¶18} Moreover, while Furman’s competency was being evaluated, Furman

moved to dismiss on speedy trial grounds on September 16, 2021. The trial court denied

the motion on January 7, 2022. Accordingly, the speedy trial time was tolled pursuant to

the motion to dismiss from September 17, 2021 through January 7, 2022.2

        {¶19} Based on the foregoing, as of January 7, 2022, the following time periods

were charged against the state for purposes of speedy trial time: October 31, 2020




2. In addition, defense counsel moved to continue the trial date due to medical reasons. However, as the
parties have not argued that this period of continuance should be charged against Furman, and as it does
not affect the outcome of this assigned error, we proceed to compute the trial time without regard to defense
counsel’s continuances.
                                                     7

Case No. 2022-A-0029
through November 5, 2020 (6 days or 18 jail days); December 15, 2020 through

December 21, 2020 (7 days or 21 jail days); and December 30, 2020 through January 8,

2021 (10 days or 30 jail days). Accordingly, after denying the motion to dismiss on

January 7, 2022, there remained 67 days to commence the trial while Furman remained

in confinement.    Trial thereafter commenced on February 11, 2022, well within the

remaining time.

       {¶20} Therefore, Furman’s first assigned error lacks merit.

       {¶21} In his second assigned error, Furman argues:

       {¶22} “The trial court erred when [it] defined ‘reasonable doubt’ in a manner not

consistent with the statutory definition.”

       {¶23} R.C. 2901.05(C) provides that “[a]s part of its charge to the jury in a criminal

case, the court shall read the definitions of ‘reasonable doubt’ and ‘proof beyond a

reasonable doubt,’ contained in division (E) of this section.” R.C. 2901.05(E) provides:

              “Reasonable doubt” is present when the jurors, after they
              have carefully considered and compared all the evidence,
              cannot say they are firmly convinced of the truth of the charge.
              It is a doubt based on reason and common sense.
              Reasonable doubt is not mere possible doubt, because
              everything relating to human affairs or depending on moral
              evidence is open to some possible or imaginary doubt. “Proof
              beyond a reasonable doubt” is proof of such character that an
              ordinary person would be willing to rely and act upon it in the
              most important of the person’s own affairs.

       {¶24} “In a criminal case, where the trial court's charge to the jury amplifies upon

the statutory definition of reasonable doubt, mandated by [former] R.C. 2945.04, the

complained of amplification must be erroneous and prejudicial to the complaining party

before the judgment of the trial court will be disturbed.” State v. Sargent, 

, 

 (1975), paragraph two of the syllabus.
                                             8

Case No. 2022-A-0029
       {¶25} Here, the trial court instructed the jury on “reasonable doubt” as follows:

              The legislature of the State of Ohio has defined the term
              reasonable doubt and that definition is as follows; reasonable
              doubt is present when jurors after they have carefully
              considered and compared all the evidence, cannot say they
              are firmly convinced of the truth of the charge. It is a doubt
              based on reason and common sense. Reasonable doubt is
              not a mere possible doubt, because everything relating to
              human affairs or depending on moral evidence is open to
              some possible or imaginary doubt.

              Proof beyond a reasonable doubt is proof of such character
              that an ordinary person would be willing to rely and act upon
              it in the most important of his own affairs. You should not
              convict this defendant unless the evidence removes from your
              mind all reasonable doubt of his guilt. On the other hand, you
              should not acquit this defendant upon trivial suppositions.

(Emphasis added.)

       {¶26} On appeal, Furman challenges the last portion of the trial court’s instruction,

that the jury “should not acquit this defendant upon trivial suppositions.”           Furman

maintains he was prejudiced by the addition of this phrase to the instruction because “[i]t

is a phrase that has a tendency to make a conviction more likely.”

       {¶27} However, the defense did not object to the instruction. Therefore, Furman

has forfeited all argument relative to this issue aside from plain error. “Crim.R. 52(B)

affords appellate courts discretion to correct ‘[p]lain errors or defects affecting substantial

rights notwithstanding the accused’s failure to meet his obligation to bring those errors to

the attention of the trial court.” State v. Rogers, 

, 

, 

. “However, the accused bears the burden of proof to demonstrate plain

error on the record, … and must show ‘an error, i.e., a deviation from a legal rule’ that

constitutes ‘an “obvious” defect in the trial proceedings[.]’” 

 quoting State v. Barnes,

, 

 (2002). “[E]ven if the error is obvious, it must have
                                              9

Case No. 2022-A-0029
affected substantial rights,” meaning “‘that the trial court’s error must have affected the

outcome of the trial.’” Rogers at ¶ 22, quoting 

.

       {¶28} This court has previously addressed an identically phrased addition to the

instruction in the context of plain error. State v. McMillen, 11th Dist. Ashtabula No. 94-A-

0050, 

, *9 (Oct. 2, 1995). In McMillen, we relied on State v. Jester, 

, 

 (1987), and State v. Manross, 11th Dist. Ashtabula No.

1295, 

 *8 (July 10, 1987).          In Jester and Manross, the trial courts

employed the “trivial supposition” language in the jury charge, but the appellants failed to

demonstrate prejudice arising from the addition.       Likewise, here, although Furman

speculates that the jury may have been unaware of the meaning of “trivial supposition,”

such speculation does not in itself demonstrate the requisite prejudice. As we stated in

McMillen, “[w]hile we agree that any amplification upon the definitions provided in R.C.

2901.05(D) is unnecessary and inadvisable, the amplification complained of in the instant

case certainly does not constitute plain error.” McMillen at *9, citing State v. Long, 

, 

 (1978).

       {¶29} Accordingly, Furman’s second assigned error lacks merit.

       {¶30} In his third and fourth assigned errors, Furman maintains:

       {¶31} “[3.] The convictions were against the manifest weight of the evidence.”

       {¶32} “[4.] There was insufficient evidence against Furman.”

       {¶33} The “[w]eight of the evidence concerns ‘the inclination of the greater amount

of credible evidence … to support one side of the issue rather than the other.’”

(Emphasis sic.) State v. Thompkins, 

, 

 (1997),

quoting Black’s Law Dictionary 1594 (6th Ed.1990). When considering challenges to the

                                            10

Case No. 2022-A-0029
weight of the evidence, the appellate court reviews “‘the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way and

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

a new trial ordered.’” 

, quoting State v. Martin, 

, 

 (1st Dist.1983). “When a court of appeals reverses a judgment of a

trial court on the basis that the verdict is against the weight of the evidence, the appellate

court sits as a ‘“‘thirteenth juror’”’ and disagrees with the factfinder’s resolution of the

conflicting testimony.” 

, quoting Tibbs v. Florida, 

, 

, 

 (1982). “The discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” 

, quoting 

.

       {¶34} Unlike a manifest weight review, the question of whether sufficient evidence

supports the conviction “is a test of adequacy,” which we review de novo. 

. “In a sufficiency-of-the-evidence inquiry, the question is whether the evidence

presented, when viewed in a light most favorable to the prosecution, would allow any

rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.”

State v. Dent, 

, 

, 

, citing State v.

Jenks, 

, 

 (1991), paragraph two of the syllabus.

       {¶35} Thus, “[w]hen an appellant raises both sufficiency and manifest weight

arguments in an appeal, the appellate court is only required to review the latter argument

because “‘a determination of whether a conviction is or is not supported by the weight of

the   evidence    ‘necessarily   rests   on   the   existence    of   sufficient   evidence.’’”

                                              11

Case No. 2022-A-0029
State v. Fiederer, 11th Dist. Lake No. 2019-L-142, 

, quoting State

v. DiBiase, 11th Dist. Lake No. 2011-L-124, 

, ¶ 38, quoting State v.

Pesec, 11th Dist. Portage No. 2006-P-0084, 

.

       {¶36} Here, as set forth in our recitation of the procedural history, the jury

acquitted Furman of the first three charges pertaining to allegations related to October

23, 2020, but it found Furman guilty of the following charges related to his alleged actions

on October 29, 2020: kidnapping, in violation of R.C. 2905.01(A)(4) and (C)(1), with a

sexual motivation specification pursuant to R.C. 2941.147(A); rape, in violation of R.C.

2907.02(A)(2) and (B); and domestic violence, in violation of R.C. 2919.25(A) and (D)(4).

Accordingly, we will focus our discussion on the evidence pertaining to the October 29,

2020 incidents, while addressing evidence pertaining to the alleged October 23, 2020

incident for background purposes.

       {¶37} With respect to kidnapping, R.C. 2905.01(A)(4) provides:

              No person, by force, threat, or deception, or, in the case of a
              victim under the age of thirteen or mentally incompetent, by
              any means, shall remove another from the place where the
              other person is found or restrain the liberty of the other person
              … [t]o engage in sexual activity, as defined in section
              2907.01 of the Revised Code, with the victim against the
              victim’s will.

R.C. 2905.01(C)(1) generally classifies kidnapping as a first-degree felony. “Sexual

motivation” for purposes of the R.C. 2941.147 specification, means that the offense was

committed with “a purpose to gratify the sexual needs or desires of the offender.” R.C.

2971.01(J).

       {¶38} With respect to rape, R.C. 2907.02(A)(2) provides, “No person shall engage

in sexual conduct with another when the offender purposely compels the other person to

                                             12

Case No. 2022-A-0029
submit by force or threat of force.” R.C. 2907.02(B) generally classifies rape as a first-

degree felony.

       {¶39} With respect to domestic violence, R.C. 2919.25(A) provides, “No person

shall knowingly cause or attempt to cause physical harm to a family or household

member.” R.C. 2919.25(D)(4) provides that, where the offender has previously been

convicted of two or more offenses of domestic violence, a violation of R.C. 2919.25(A) is

classified as a third-degree felony.

       {¶40} In support of these charges, at trial, the state presented the testimony of the

victim, the victim’s mother, a sexual assault nurse examiner, a forensic scientist, and

police officers.

       {¶41} The victim testified that she and Furman had been married since November

2015, and they have three children together. In July 2020, the victim informed Furman

that she wanted a divorce, and Furman refused to consent. Thereafter, the family moved

into a home in Ashtabula County, Ohio. At that time, Furman was working as a tree

trimmer in New York, where he would reside in motels during the week, and he would

return home on Friday nights for the weekend. The victim was working night shifts at a

casino approximately one hour from their home, and she would return home at

approximately 3:30 a.m. each morning on Tuesday through Saturday. Due to their work

and sleep schedules, the victim’s mother would watch the children at her home overnight

and return the children to the victim at 11:00 a.m.

       {¶42} With respect to the Friday, October 23, 2020 allegations, the victim testified

that she returned home from work at approximately 3:30 a.m. She heard a noise in the

basement, and when she went to investigate, she located Furman on the basement stairs.

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Case No. 2022-A-0029
She was surprised Furman was there because he does not typically get home from work

until Friday night, and she had not seen his car. Furman approached her and drew a

knife. He then held the blade to the victim’s face and stated that the victim would not be

cheating on him so much if her “pretty little face [was] all scarred up.” Furman then

instructed her to go the basement and masturbate in front of him. After that, she and

Furman went to the kitchen, and the victim made coffee and the two spoke for some time.

Eventually, they went to the bedroom and had intercourse. The victim indicated that

Furman had his knife in his possession the entire time, and, although she was not “in the

mood” to have intercourse with Furman, she “didn’t fight him off or anything.” The victim

indicated that, at the time of this incident, their marriage was “[v]ery rocky[.]” The next

day, Furman agreed to a divorce if they had one more family day with the children, and

they proceeded to take the children to a pumpkin patch. The victim and Furman agreed

that Furman should seek medical care for his aberrant behavior. On cross-examination,

the victim affirmed that she had testified in another proceeding that she voluntarily had

sex with Furman during the weekend following the October 23 incident.             She also

acknowledged that, following that incident, Furman stayed at their home.

       {¶43} The victim and the victim’s mother testified that they discussed the October

23, 2020 incident. Due to their concerns for the victim’s safety, they decided that, in case

the victim felt herself to be in danger thereafter, she would send a text message to her

mother asking if she had any “weed” as a code that she needed assistance.

       {¶44} With respect to the Thursday, October 29, 2020 allegations, the victim

testified that she came home from work and fell asleep on the couch. She was awoken

by Furman flipping her off the couch. When she got up from the floor, Furman hit her on

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Case No. 2022-A-0029
the left side of her face, and she fell back down. The victim began to scream, and Furman

covered her mouth with his hand. Furman informed her that he was going to kill himself,

and he wanted her to tell their children that their dad had died because their mom was “a

whore.” Furman then hit her twice more, asking where her gun was. She informed him

that it was above the refrigerator. Furman then retrieved the gun and cocked it. He held

it to his head, and then to the victim’s head. Thereafter, he forced vaginal intercourse

with the victim, and demanded she call out the name of the man with whom Furman

believed she was cheating. For about four hours Furman attempted to make the victim

confess that she was cheating on him, and, when she would not, he would strike her.

During this time, Furman also dumped coffee on the victim and chased her around their

dining table. As it approached the time when the victim’s mother would normally return

the children, Furman instructed the victim to text her mother and tell her not to bring the

children home and, instead, the victim would pick them up. The victim texted her mother

saying she would pick up the children, followed by, “do you have any reefer[?]” The victim

indicated that Furman knew that the reference to marijuana was code, and he struck her

again. The victim suggested they leave the house because she thought it would be safer

if she were not alone in the home with him. Furman agreed and led the victim to the

victim’s car and directed her through the driver’s side into the passenger seat. The victim

did not see Furman’s car anywhere. Furman and the victim then drove to Pennsylvania.

Furman continued to have possession of the gun, and he continued to threaten to kill

himself.

       {¶45} The victim’s mother testified that on the morning of October 29, 2020, she

took the children to get lunch and then drove them home. When they arrived, the garage

                                            15

Case No. 2022-A-0029
door was open, which was unusual, and the victim’s car was gone. The victim’s mother

was concerned due to the discussion she had with the victim regarding the October 23,

2020 incident. Accordingly, she told the victim’s children to wait in the car, and she then

began to look for the victim. Inside the home, she heard the victim’s phone ringing in the

garbage can in the kitchen. The house was in disarray, and coffee had been spilled and

chairs knocked over. The victim’s mother called the police and notified them of her

suspicions that Furman had abducted the victim. When the police arrived, the victim’s

mother checked her own phone to verify the victim’s last contact with her, and at that

point, she saw that the victim had sent her their agreed distress code.

       {¶46} An officer from the Ashtabula City Police Department testified that he was

dispatched to the victim’s home on October 29, 2022 to meet with the victim’s mother,

who believed the victim to be missing. After speaking with the victim’s mother, officers

entered the victim’s residence and noticed that coffee had been spilled on the floor, and

an ashtray and chair were overturned in the dining room. Because it appeared that an

altercation had occurred, the officer notified a detective.

       {¶47} A detective who arrived at the scene was briefed by responding officers and

spoke to the victim’s mother. Based upon information received from the victim’s mother,

the detective confirmed that a cell phone located in the home belonged to the victim and

a cell phone located in the back yard belonged to Furman. Officers then began to search

for the two cars owned by the victim and Furman.

       {¶48} Another detective testified that he located Furman’s car at a funeral home

down the road from the victim’s house. Officers then arranged for the car to be towed to

the police station.

                                             16

Case No. 2022-A-0029
       {¶49} Meanwhile, the victim testified that she and Furman continued driving for

several hours in Pennsylvania. Eventually, Furman agreed to return to get his car, to let

the victim take her car home, and to go their separate ways. However, when they went

to retrieve Furman’s car from the funeral home, it had been towed. Realizing that the

police may now be involved, Furman agreed to drive the victim near to her mother’s house

and drop her off. He told the victim that he planned to wait for an officer to get behind

him and commit suicide via police. The victim kissed Furman goodbye on his lips, wished

him good luck, and gave him all of the money in her wallet. The victim then walked to her

mother’s house, and Furman drove away. After arriving at her mother’s house, the police

were notified of her return.

       {¶50} On cross-examination, the victim indicated that, during the October 29

incident, she did drive the car during portions of the day. She further verified that they

did makes stops at a gas station for fuel and along the road to urinate. However, she did

not attempt to flee. The victim indicated that she uses marijuana daily, usually four times

per day, and she had been diagnosed as bipolar in 2018, but does not use the prescribed

medication.

       {¶51} The state further elicited testimony regarding the victim’s injuries. The

victim’s mother testified that when the victim returned to her house, she was shaking and

bruised, and her voice was cracking. Thereafter, the victim went to the police station and

was interviewed. The detective who interviewed the victim testified that she had visible

trauma to the left side of her face, her neck, and her lower forearm. The victim was then

transported to the hospital, where the detective photographed the victim’s injuries.



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       {¶52} A sexual assault nurse examiner testified that she performed an

examination and administered a rape kit on the victim. The nurse indicated that the victim

had bruising behind her ear, under her chin, and on the left side of her face from under

the chin to her hairline. The victim also had lacerations on her foot. There was no injury

noted from the pelvic examination, but the nurse indicated that it is not unusual for women

to not experience injury to the pelvic area from a sexual assault after puberty. A forensic

scientist that tested the swabs from the rape kit testified that some of the swabs indicated

the presence of semen.

       {¶53} The state provided several pictures of the scene and the victim that were

identified through the above witnesses. The state further offered certified copies of two

prior convictions of Furman for domestic violence, and these convictions were admitted

into evidence without objection.

       {¶54} On appeal, Furman contends that the victim was not credible, and no

reasonable jury could believe her testimony. In support, Furman references the victim’s

behavior prior to leaving the car on October 29, 2020, when she kissed Furman goodbye,

gave him money, and wished him well.             Further, Furman points to the victim’s

acknowledgment to having consensual sex with Furman following the alleged October

23, 2020 incident as well as her other statements made on cross-examination as

demonstrating her lack of credibility.

       {¶55} Although the victim’s behavior to which she testified may not be typical or

expected, the jury was in a superior position than this court to assess her credibility. See

State v. Fiederer, 11th Dist. Lake No. 2019-L-142, 

. The victim

testified that Furman repeatedly assaulted her, pointed a gun at her, and forced vaginal

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intercourse with her on October 29, 2020. The victim’s behavior is not so unusual that

we can say that this is the exceptional case where the evidence weighs heavily against

Furman’s convictions. Accordingly, the convictions are not against the weight of the

evidence and are supported by sufficient evidence.

      {¶56} Therefore, Furman’s third and fourth assigned errors lack merit.

      {¶57} In his fifth assigned error, Furman contends:

      {¶58} “Furman was denied his right to the effective assistance of counsel in

violation of the Sixth Amendment and Article I, Section 10 of the Ohio Constitution.”

      {¶59} To prevail on a claim of ineffective assistance of counsel, “a defendant must

prove that counsel’s performance was deficient and that the defendant was prejudiced by

counsel’s deficient performance.” State v. Davis, 

, 

, 

, citing State v. Bradley, 

, 

(1989); and Strickland v. Washington, 

, 

, 

(1984). “Thus, the defendant must demonstrate that counsel’s performance fell below an

objective standard of reasonableness and that there exists a reasonable probability that,

but for counsel’s error, the result of the proceeding would have been different.” 

, citing Bradley at paragraphs two and three of the syllabus.

      {¶60} Furman first argues that counsel was ineffective for failing to move for

immediate discharge based on speedy trial grounds.          However, as set forth in our

recitation of the procedural history as well as our discussion of the first assigned error,

counsel did move to dismiss the indictment on speedy trial grounds. To the extent that

Furman maintains that such a motion should have been later renewed, as set forth in our



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discussion of the first assigned error, there existed no speedy trial violation. Accordingly,

defense counsel was not ineffective on this basis.

       {¶61} Furman next argues that counsel was ineffective for failing to object to the

trial court’s definition of reasonable doubt. However, as set forth in our discussion of

Furman’s second assigned error, he has not established prejudice resulting from the trial

court’s instruction. Furman’s fifth assigned error likewise fails to establish prejudice

resulting from counsel’s failure to object to the court’s instruction. See State v. Walker,

11th Dist. Lake No. 2022-L-077, 

, citing Rogers at ¶ 22 (“both plain

error and ineffective assistance of counsel claims require a showing of an error and that

there exists a reasonable probability that the error affected the outcome of trial”).

       {¶62} Accordingly, Furman’s fifth assigned error lacks merit.

       {¶63} Having found no merit to Furman’s assigned errors, the judgment is

affirmed.



JOHN J. EKLUND, P.J.,

MARY JANE TRAPP, J.,

concur.




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