State v. Jeffrey

[Cite as State v. Jeffrey, 2013-Ohio-504.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
: Appellate Case No. 24916
Plaintiff-Appellee :
: Trial Court Case No. 11-CR-1661/1
v. :
:
RAYSHAWN T. JEFFERY : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........

OPINION

Rendered on the 15th day of February, 2013.

...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

KRISTOPHER A. HAINES, Atty. Reg. #0080558, Office of the Ohio Public Defender, 250
East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant

.............

FAIN, P.J.

{¶ 1} Defendant-appellant Rayshawn T. Jeffery appeals from his conviction and

sentence for Rape, Kidnapping, and Having Weapons While Under Disability. Jeffery
 2

contends that prosecutorial misconduct committed during the State’s closing argument

deprived him of his right to a fair trial; the trial court erred in failing to assure juror unanimity

in his Rape and Kidnapping guilty verdicts, in violation of Crim.R. 31(A); his trial counsel

was ineffective for failing to raise the prosecutorial misconduct and juror unanimity errors

during the trial; and the trial court erred in not notifying Jeffery at his sentencing hearing that a

failure to pay the court costs could result in an order to perform community service.

{¶ 2} We conclude that the State’s closing argument did not deprive Jeffery of a fair

trial, and his Crim.R. 31(A) right to juror unanimity was not violated. Furthermore, we

conclude that Jeffery has failed to demonstrate ineffective assistance of trial counsel. Finally,

we conclude that the trial court erred in not notifying Jeffery that a failure to pay court costs

could result in an order to perform community service. Accordingly, that part of the

judgment of the trial court ordering the payment of court costs is Reversed; the judgment of

the trial court is Affirmed in all other respects; and this cause is Remanded for the

re-imposition of court costs, in accordance with this opinion.

I. The Offenses

{¶ 3} One night in May 2011, J.R. and her fiancé, J.S., were living in an abandoned

house in Dayton. At around 3:00 a.m., Rayshawn Jeffery and Shane Hopkins arrived at the

house. After knocking at the front door, Jeffery was invited into the house and came in

through the bedroom window. He started waving a gun around and began yelling about the

fact that the house belonged to his grandmother and that J.R. and J.S. would have to pay rent.

Hopkins then climbed into the bedroom through the open window.
[Cite as State v. Jeffrey, 2013-Ohio-504.]
{¶ 4} Jeffery told J.R. that he needed to speak with her privately in another room.

After he led her into the other room, Jeffery told J.R. that he needed payment for her staying at

his grandmother’s house. He lifted up his shirt, unbuckled his pants, and told J.R. to get on

her knees. Jeffery pushed her down, held her head with his right hand, and forced her to

perform fellatio on him as he held the gun in his left hand.

{¶ 5} Hopkins came into the room as Jeffery was forcing J.R. to perform fellatio.

Hopkins walked up behind J.R. and picked her up by her hips to make her stand up. She

asked what Hopkins was doing and Jeffery responded “[H]e’s my blood brother; this is his

grandmama’s house too, so he’s got to get his part of the payment.” Jeffery instructed her to

pull down her pants and give Hopkins his payment. When J.R. hesitated, Hopkins removed

her shorts and began to have vaginal intercourse with her from behind as she was bent over

performing fellatio sex on Jeffery.

{¶ 6} At some point while J.R. was being raped, J.S. stood outside the room and

asked if J.R. was okay. Jeffery lifted the gun a bit higher to her head, which prompted J.R. to

tell J.S. that she was fine and to get away from the door. J.S. left the house and called 9-1-1.

Police cruisers arrived outside the house at about the same time Jeffery ejaculated into J.R.’s

mouth. Hopkins then stopped having intercourse with J.R. and pulled up his pants.

{¶ 7} Jeffery and Hopkins escaped out the bedroom window. J.R. provided the

police with a description of her attackers and the police stopped Jeffery and Hopkins a short

distance from the abandoned house. J.R. identified the two of them to the police. A

handgun was found on a nearby porch. Jeffery and Hopkins denied that they were in the

abandoned house. They were then arrested and taken to the police station.

{¶ 8} Jeffery and Hopkins were interviewed by the police. Initially, each of them
 4

denied that they had any contact with J.R. that morning. But during a second interview,

Hopkins admitted that he and Jeffery had consensual sexual contact with J.R. DNA analysis

confirmed that sexual conduct occurred between J.R. and Hopkins and between J.R. and

Jeffery. A swab that was taken from Jeffery’s penis revealed the presence of J.R.’s DNA, and

the DNA of both Hopkins and J.R. was found on a condom that was discovered in the back

room of the abandoned house.

II. The Course of Proceedings

{¶ 9} Jeffrey and Hopkins were charged by indictment with one count of Rape, in

violation of R.C. 2907.02(A)(2), one count of Kidnapping, in violation of R.C. 2905.01(A)(4),

and one count of Having Weapons While Under Disability, in violation of R.C.

2923.13(A)(2). The Rape and Kidnapping counts carried firearm specifications, in violation

of R.C. 2929.14 and 2941.145.

{¶ 10} Jeffery and Hopkins were tried together before a jury. The jury returned

guilty verdicts on the Rape and Kidnapping counts, along with the firearm specifications.

Jeffery chose to waive his right to a jury trial with respect to his Having Weapons While

Under Disability count. The trial court found Jeffery guilty on this count.

{¶ 11} Jeffery was sentenced to a total prison term of twelve years and was classified

as a Tier 3 sex offender. Jeffery was ordered to pay court costs. The trial court notified

Jeffery of the terms of his post-release control, but did not notify him of any consequence that

might result from a failure to pay court costs. From his conviction and sentence, Jeffery

appeals.
[Cite as State v. Jeffrey, 2013-Ohio-504.]

III. The Alleged Prosecutorial Misconduct Did Not

Prejudicially Affect Jeffery’s Substantial Rights

{¶ 12} Jeffery’s First Assignment of Error states:

THE PROSECUTOR’S MISCONDUCT DENIED MR. JEFFERY A FAIR

TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF MR. JEFFERY’S

FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE

UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF

THE OHIO CONSTITUTION.

{¶ 13} Jeffery contends that “the State recognized that [J.R.] and [J.S.] were

unreliable witnesses, and felt compelled to bolster their testimony through various improper

techniques.” Brief, p. 10. According to Jeffery, the outcome of his trial “came down to the

jury’s proper assessment of witness credibility,” and “the prosecutor complicated the jury’s

proper function when she aligned herself with the jury, vouched for the credibility of the

State’s witnesses, denigrated Mr. Jeffery’s defense, and improperly commented on Mr.

Jeffery’s right to remain silent and suggested that Mr. Jeffery’s invocation of that right was

evidence of his guilt.” Id. at 9.

{¶ 14} All of the alleged prosecutorial misconduct identified by Jeffery occurred

during the State’s closing argument. “Generally, prosecutors are entitled to considerable

latitude in opening and closing arguments.” State v. Whitfield, 2d Dist. Montgomery No.

22432, 2009–Ohio–293, ¶ 12. Accord State v. Ballew, 76 Ohio St.3d 244, 255, 667 N.E.2d

369 (1996). A prosecutor may comment on “what the evidence has shown and what

reasonable inferences can be drawn therefrom.” Id., quoting State v. Richey, 64 Ohio St.3d
 6

353, 362, 595 N.E.2d 915 (1992). “The closing argument must be reviewed in its entirety to

determine prejudicial error.” Ballew at 255.

{¶ 15} The test for prosecutorial misconduct is whether the remarks were improper,

and if so, whether they prejudicially affected the accused’s substantial rights. State v. Smith,

14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the analysis “is the fairness

of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102

S.Ct. 940, 71 L.Ed.2d 78 (1982). The question is whether the prosecutor’s misconduct so

infected the accused’s trial with unfairness that the accused’s convictions came in violation of

the right to due process. Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868, 40

L.Ed.2d 431 (1974).

{¶ 16} Jeffery concedes that there was no objection at trial to the alleged

prosecutorial misconduct so that we must review his claims for plain error. Brief, p. 9. Plain

error is not present unless, but for the error complained of, the outcome of the trial would have

been different. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the

syllabus. A finding of plain error should be made with utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice. Id. at paragraph three of

the syllabus.

A. Vouching for the Credibility of the Witnesses

{¶ 17} Jeffery contends that the prosecutor improperly expressed her opinion

regarding the credibility of the witnesses. In support of his argument, Jeffery cites three

portions of the trial transcript, one in which the prosecutor allegedly vouched for the State’s
 7

witnesses (Tr. 1199) and two in which the prosecutor “vouched” for J.R.’s testimony (Tr.

1229, 1232-1234).

{¶ 18} Jeffery contends that the prosecutor improperly vouched for the State’s

witnesses in the following excerpt from the State’s closing argument:

Folks, a careful and faithful review of this evidence and of all the other

evidence presented to you in this case; a review of [J.R.’s] testimony alone and

this physical evidence much less the exceptional, almost flawless, work of the

Dayton Police Department immediately - - May 11th, May 12th, all summer.

There is proof beyond a reasonable doubt that Rashawn Jeffery and Shane

Hopkins raped this girl vaginally, by forcing her to have fellatio and they took

her to that back room and they held her against that wall with that gun and they

wouldn’t let her go. * * * Tr. 1199.

{¶ 19} Jeffery also identifies the following excerpt from the State’s closing

arguments as further improper vouching for the State’s key witness:

[J.R.] told the story and the evidence matched what she said because

it’s the truth.

He’s the opposite. He’s how you know when somebody’s not telling you the

truth. Because he started, he wasn’t even in that house. Well, at first he started he

was some place else. He was on Gramont when he told Detective House, Officer

House, on the street. But the other guy said Anna and Kammer. So when he’s

interviewed by Detective Lawson now that the other guy have him Anna and Kammer

now he says he was coming from Anna and Kammer. And he sticks with that for a
 8

while until somebody says something about his DNA put him in the house. So then

he goes a little bit further now that they confront him with that - - well, he came in the

house but he didn’t do nothing; he didn’t touch that girl.

***

You know, yes, there came a time when she was lying about what

happened to her. First of all, she is tracked - - a rape victim is tracked down

by a defendant’s mother. How inappropriate is that? And how threatening is

that in its very nature? She doesn’t have no place to go. She can’t run away

and hide.

She’s got another group of people tracking her down making her make

a video with the gun in the pants. She is scared.

Let me tell you this. Talk about motivation for telling the truth or

telling a lie. Do you think anything good happened to her for calling the

police? Did she get anything? She has been insulted. She has made, been

made fun of. She’s had to go through a three-hour rape examine. She had to

go through hours of cross examination where she was grilled and insinuations

were made about her. What motivation did she have to do that? Any one of

you think if somebody would’ve handed her $20,000, $10,000, a thousand

dollars not to go through that that she wouldn’t have taken it?

You know, that’s what the defendants missed. It’s not [J.R.]

versus these defendants. It’s the State of Ohio versus those

defendants. It’s not her choice because if it was, she wouldn’t
 9

have done it. What did this get her?

That’s how you know she’s telling the truth. She’s not getting out of

something. She’s not getting something. She’s doing it because it’s the truth

and because it matches what - - and you know it’s the truth, it matches what it

said and it matches every piece of that evidence.

***

Ladies and gentlemen, the evidence in this case has been

overwhelming. You know what happened to [J.R.]. She told you what

happened. She told the police what happened. She told the rape nurse what

happened to her. And it matched the evidence.

And there was no credible evidence to the contrary. All you have there

is people who change their stories to suit the evidence or somebody who sticks

to a ridiculous story despite all evidence.

She told you the truth. That’s why all the evidence fits, ladies and

gentlemen. And that’s why the State of Ohio will ask you to convict both of

these men as charged – kidnapping and rape. * * * Tr. 1229-1234.

{¶ 20} During closing arguments, prosecutors “can bolster [their] own witnesses, and

conclude by saying, in effect, ‘The evidence supports the conclusion that these witnesses are

telling the truth.’” State v. Draughn, 76 Ohio App.3d 664, 671, 602 N.E.2d 790 (5th

Dist.1992). But a prosecutor “cannot say, ‘I believe these witnesses,’ because such argument

invades the province of the jury, and invites the jury to decide the case based upon the

credibility and status of the prosecutor.” Id., citing State v. Smith, 14 Ohio St.3d 13, 470
 10

N.E.2d 883 (1984). “A prosecutor's statement on witness credibility is not an improper

voucher where it neither implies knowledge of facts outside the record nor places the

prosecutor's personal credibility at issue.” State v. Miller, 4th Dist. Washington No. 06CA11,

2007-Ohio-427, at ¶ 24, citing State v. Keen, 81 Ohio St.3d 646, 666, 693 N.E.2d 246 (1998).

{¶ 21} Jeffery argues that these statements by the prosecutor relating to witness

credibility were improper. We disagree. A “prosecutor may comment upon the

circumstances of witnesses in their testimony, including their interest in the case, their

demeanor, their peculiar opportunity to review the facts, their general intelligence, and their

level of awareness as to what is going on. The prosecutor may conclude by arguing that these

circumstances make the witnesses more or less believable and deserving of more or less

weight.” State v. Clay, 181 Ohio App.3d 563, 2009–Ohio–1235, 910 N.E.2d 14, ¶ 47 (8th

Dist.) (Citation omitted.) Here, the prosecutor never said that she personally believed the

State's witnesses. Rather, the prosecutor argued that, under the circumstances, it was more

likely that the State's witnesses were telling the truth. In short, the prosecutor properly argued

facts to support the witness’s credibility. State v. Green, 90 Ohio St.3d 352, 374,

2000-Ohio-182, 738 N.E.2d 1208. The prosecutor did not impermissibly vouch for the

credibility of the State's witnesses.

B. The State Did Not Impugn Jeffery’s Right to Remain Silent

{¶ 22} Although considerable latitude is permitted in closing argument, a prosecutor

must not equate a defendant's silence to guilt. State v. Thompson, 33 Ohio St.3d 1, 4, 514

N.E.2d 407 (1987). Jeffery contends that the prosecutor “impugned Mr. Jeffery’s right to
 11

remain silent[.]” Brief, p. 6. Jeffery identifies the following excerpt from the State’s closing

argument as constituting the prosecutorial misconduct:

From the moment they’re approached by Officer David House, they

give different stories. Are they walking away like two men who committed

rape? I think they’re walking like two men – I think the evidence supports

they’re walking like two men who think they’re going to get away with rape.

The police are chasing out back. They get out the front window. They ditch

that gun. They’re walking like two men get away with rape. They can’t get

their story together.

One of them denies, denies, denies. I’m not even sure what his defense

is. He has a right to sit there and say nothing. He didn’t say nothing to the

police although he had a right not to, he said I wasn’t even there. And today

he’s arguing, through counsel, that it was consent? Tr. 1228-1229.

{¶ 23} Jeffery exercised his right to not testify at trial. He also exercised his right to

remain silent after initially speaking with the police. Prior to exercising his right to remain

silent, however, he made a statement to the police and answered some questions from the

police. The statement and interview were shown to the jury. Nothing the prosecutor said

above is inconsistent with the evidence given to the jury. Furthermore, the prosecutor

correctly stated that Jeffery “has a right to sit there and say nothing.” The prosecutor’s

closing argument, when viewed as a whole, did not equate Jeffery’s silence to guilt.

Thompson at 4. The argument properly commented upon the inconsistency between Jeffery’s

statement to the police, before he exercised his right to remain silent, that he had no contact
 12

with J.R., and his defense at trial, that his sexual conduct with her was consensual.

{¶ 24} The First Assignment of Error is overruled.

IV. No Error Is Demonstrated with Regard to Juror Unanimity

{¶ 25} Jeffery’s Second Assignment of Error states:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

FAILED TO ASSURE THAT THE JURY’S VERDICTS WERE UNANIMOUS, IN

VIOLATION OF CRIM.R. 31(A), AND IN VIOLATION OF MR. JEFFERY’S

RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.

{¶ 26} The evidence presented at trial showed that Jeffery forced J.R. to perform

fellatio on him, while Hopkins engaged in vaginal intercourse with J.R. Fellatio and vaginal

intercourse are alternative means of committing the offense of Rape. R.C. 2907.02(A)(2).

The Kidnapping offenses were based on the movement and restraint of J.R. for the purpose of

engaging in sexual conduct. Jeffery contends that the trial court erred when it “failed to

assure that the jury agreed regarding which of the specific acts of sexual conduct supported the

convictions.” Brief, p. 11. Jeffery concedes that we must review the alleged error under a

plain error analysis, since no objection was made during the trial. Brief, p. 14.

{¶ 27} In order to find Jeffery guilty of Rape in this case, the State had to prove that

he “engage[d] in sexual conduct with another when [he] purposely compels the other person to

submit by force or threat of force.” R.C. 2907.02(A)(2). The trial court’s instruction to the
 13

jury on the count of Rape mirrored the language in R.C. 2907.02(A)(2), stating:

The defendants are charged with rape. Before you can find either

defendant guilty of rape, you must find beyond a reasonable doubt that on or

about the 11th day of May, 2011, and in Montgomery County, Ohio, each

defendant engaged in sexual conduct with another, in this case [J.R.], by

purposely compelling the other person to submit by force or threat of force.

Sexual conduct in this case means fellatio or vaginal intercourse

between a male and a female. Tr. 1243.

{¶ 28} In order to find Jeffery guilty of Kidnapping in this case, the State had to

prove that he “by force, threat, or deception * * * remove[d] another from the place where the

other person is found or restrain[ed] the liberty of the other person” with the purpose of

“engag[ing] in sexual activity * * * with the victim against the victim’s will[.]” R.C.

2905.01(A)(4). Once again, the trial court’s jury instruction tracked the language of the

statute. The trial court’s instruction to the jury on the count of Kidnapping, states, in part:

The defendants are also charged with kidnapping. Before you can find

either defendant guilty of kidnapping, you must find beyond a reasonable doubt

that on or about the 11th day of May, 2011, and in Montgomery County, Ohio,

each defendant did by force, threat or deception remove J.R. from the place

where she was found or did restrain J.R. of her liberty for the purpose of

engaging in sexual activity with the victim against her will. Tr. 1246.

{¶ 29} The trial court also instructed the jury on the law of complicity. The trial

court stated, in part:
 14

Each defendant may be convicted of rape and/or kidnapping as a

principal offender or upon the basis of complicity.

Rashawn Jeffery may be convicted of the firearm specifications only as

a principal offender.

Shane Hopkins may be convicted of the firearm specifications as a

principal or upon the basis of complicity.

Before you can find either defendant guilty of rape and/or kidnapping

upon the basis of complicity, you must find that on or about May 11th, 2011,

and in Montgomery County, Ohio, the defendant knowingly aided or abetted

the other defendant to commit the offense of rape and/or kidnapping as already

defined. Tr. 1247-1248.

{¶ 30} Jeffery does not take issue with the jury instructions set forth above. Rather,

Jeffery argues that the trial court failed to ensure that the twelve members of the jury were

unanimous in their guilty verdict. The trial court’s instructions to the jury regarding

unanimity state, in part:

The first verdict form relates to Rashawn Jeffery and the charge of rape,

force or threat of force. It’s a fairly simple format. “We, the jury, upon the

issues joined in this case do find the defendant, Rashawn Jeffery” and you’ll

insert, in ink, either guilty or not guilty “of rape, force or threat of force as

charged in Count 1 of the indictment.”

As you can see, there are 12 places for each juror’s signature and when

you reach a verdict, whether that verdict is guilty or not guilty, each of you
 15

must sign the verdict form.

Also, it’s important to note that whether your verdict is guilty or not

guilty, the verdict must be unanimous. All 12 of you must agree upon the

verdict, again, whether it’s guilty or not guilty.

***

Going then to the charges of kidnapping. The first verdict form relates

to Rashawn Jeffery as relates to the charge of kidnapping. It’s the same

format. And once again, you’ll insert either guilty or not guilty where

indicated.

And, once again, to repeat myself but I think it’s worthy of repetition,

each of you must agree upon the verdict; each of you must sign the verdict

form and it must be unanimous whether the verdict is guilty or not guilty. Tr.

1250-52.

{¶ 31} In Ohio, unanimity in a jury verdict is required by Crim.R. 31(A). State v.

Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 35. “Although Crim.R.

31(A) requires juror unanimity on each element of the crime, jurors need not agree to a single

way by which an element is satisfied.” Id. at ¶ 38, citing Richardson v. United States, 526

U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). “[A] ‘jury need not always decide

unanimously which of several possible sets of underlying brute facts make up a particular

element, say, which of several possible means the defendant used to commit an element of the

crime.’” Id., quoting Richardson.

{¶ 32} Both parties agree that the proper analysis to determine whether a defendant’s
 16

Crim.R. 31(A) right has been violated is guided by the Supreme Court’s decision in State v.

Gardner. The Court held, at ¶ 48-52:

In determining whether the state has impermissibly interfered with a

defendant’s Crim.R. 31(A) right to juror unanimity and the due process right to

require that the state prove each element of the offense beyond a reasonable

doubt, the critical inquiry is whether the case involves “alternative means” or

“multiple acts.”

“ ‘ “In an alternative means case, where a single offense may be

committed in more than one way, there must be jury unanimity as to guilt for

the single crime charged. Unanimity is not required, however, as to the means

by which the crime was committed so long as substantial evidence supports

each alternative means. In reviewing an alternative means case, the court must

determine whether a rational trier of fact could have found each means of

committing the crime proved beyond a reasonable doubt.

“ ‘ “In multiple acts cases, on the other hand, several acts are alleged

and any one of them could constitute the crime charged. In these cases, the jury

must be unanimous as to which act or incident constitutes the crime. To ensure

jury unanimity in multiple acts cases, we require that either the State elect the

particular criminal act upon which it will rely for conviction, or that the trial

court instruct the jury that all of them must agree that the same underlying

criminal act has been proved beyond a reasonable doubt.” ’ ” (Footnote

omitted.) State v. Jones (2001), 96 Hawai`i 161, 170, 29 P.3d 351, quoting
 17

State v. Timley (1994), 255 Kan. 286, 289-290, 875 P.2d 242, quoting State v.

Kitchen (1988), 110 Wash.2d 403, 410, 756 P.2d 105.

We find the distinction between “alternative means” cases and

“multiple acts” cases to be a meaningful one and one that is consistent with our

precedent. Davis, McKnight, and Thompson illustrate our analysis in alternative

means cases, while our decision in State v. Johnson (1989), 46 Ohio St.3d 96,

545 N.E.2d 636, recognizes that different standards apply in a multiple-acts

case.

In Johnson, we held that if a single count of an indictment can be

divided into two or more “ ‘distinct conceptual groupings,’ ” the jury must be

instructed specifically that it must unanimously find that the defendant

committed acts within one conceptual grouping in order to reach a guilty

verdict. Id. at 104- 105, 545 N.E.2d 636, quoting United States v. Gipson

(C.A.5, 1977), 553 F.2d 453, 458. But if the single count can be divided into a

“single conceptual grouping of related facts,” no specific instruction is

necessary, because in such a case, the alternatives presented to the jury are not

conceptually distinct, and a “patchwork” verdict is not possible. Johnson, 46

Ohio St.3d at 105, 545 N.E.2d 636.

{¶ 33} In Gardner, the Supreme Court also addressed Ohio’s Rape statute with

respect to Crim.R. 31(A)’s requirement of juror unanimity. The Court, citing its decision in

State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407 (1987), stated, at ¶ 44 and 65:

We held that Ohio’s rape statute required a showing of “sexual
 18

conduct” and that both vaginal intercourse and anal intercourse satisfied the

statutory definition of “sexual conduct.” We concluded that jurors needed to

find only that sexual conduct had occurred in order to find the aggravating

circumstance of rape and that because the statute did not require a specific

finding as to the type of rape, the trial court did not err by refusing to instruct

the jury that it must make that finding. Id., 33 Ohio St.3d at 11, 514 N.E.2d

407. We concluded, “The fact that some jurors might have found that

appellant committed one, but not the other, type of rape in no way reduces the

reliability of appellant's conviction, because a finding of either type of conduct

is sufficient to establish the fact of rape in Ohio.” Id.

***

Similarly, we do not require all jurors to agree whether a defendant

raped a victim orally, vaginally, or anally, because all three constitute “sexual

conduct” in violation of the rape statute. In such cases, there is no violation of

the jury unanimity rule as long as all of the jurors agree that there was

sufficient penetration to satisfy the “sexual conduct” element of the crime of

rape. Thompson, 33 Ohio St.3d at 11, 514 N.E.2d 407.

{¶ 34} Based on our review of Gardner and Thompson, the Rape and Kidnapping

statutes, the jury instructions, the indictment, and the evidence presented to the jury, we

conclude that this is an alternative-means case rather than a multiple-acts case. As Gardner

explained, the jury is therefore not required to agree whether Jeffery raped J.R. orally (his own

conduct) or vaginally (as complicit in Hopkins’s conduct) because each is an alternative form
 19

of “sexual conduct,” an element of Rape. There is no distinction between a defendant

convicted of complicity or as a principal offender. R.C. 2923.03(F).

{¶ 35} Having found this case to be an alternative means case, we “must determine

whether a rational trier of fact could have found each means of committing the crime proved

beyond a reasonable doubt.” Gardner at ¶ 49. Based on the evidence presented to the jury,

including the testimony of J.R. and J.S., along with the DNA evidence, we conclude that a

rational trier of fact could have found each means of committing Rape and Kidnapping proved

beyond a reasonable doubt.

{¶ 36} The Second Assignment of Error is overruled.

V. Jeffery Has Failed to Demonstrate

Ineffective Assistance of Trial Counsel

{¶ 37} Jeffery’s Third Assignment of Error states:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF MR. JEFFERY’S RIGHTS UNDER THE FIFTH,

SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO

CONSTITUTION.

{¶ 38} A claim of ineffective assistance of trial counsel requires both a showing that

counsel’s performance was deficient and that the defendant was prejudiced as a result.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A

reviewing court “must indulge in a strong presumption that counsel’s conduct falls within the
 20

wide range of reasonable professional assistance.” Id. at 689. The prejudice prong requires

a finding that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different, with a reasonable probability being “a

probability sufficient to undermine confidence in the outcome.” Id. at 694. See also State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶ 39} Jeffery contends that trial counsel was ineffective by failing to object to and

seek curative instructions relating to the prosecutorial misconduct that occurred during the

State’s closing argument and by failing either to object to the trial court’s jury instructions or

to request appropriate jury instructions regarding juror unanimity. In essence, Jeffery

contends that his trial counsel was ineffective for failing to object to the errors he assigns in

his first two assignments of error. As discussed in Parts III and IV, above, we conclude that

the record fails to establish prosecutorial misconduct or that Jeffery’s Crim.R. 31(A) right to

juror unanimity was violated. Therefore, Jeffery cannot demonstrate that he received

ineffective assistance of trial counsel.

{¶ 40} The Third Assignment of Error is overruled.

VI. The Trial Court Erred When It Failed to Notify Jeffery

of the Potential Consequences of Failing to Pay Court Costs

{¶ 41} Jeffery’s Fourth Assignment of Error states:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

IMPOSED COURT COSTS AGAINST MR. JEFFERY WITHOUT NOTIFYING

MR. JEFFERY THAT HIS FAILURE TO PAY COURT COSTS MAY RESULT IN
 21

THE TRIAL COURT’S ORDERING HIM TO PERFORM COMMUNITY SERVICE.

{¶ 42} Jeffery contends that the trial court violated R.C. 2947.23(A)(1) when it failed

to notify him at his sentencing hearing of the consequences of his failure to pay court costs.

{¶ 43} R.C. 2947.23(A)(1)(a) provides, in part:

In all criminal cases, including violations of ordinances, the judge or

magistrate shall include in the sentence the costs of prosecution, including any

costs under section 2947.231 of the Revised Code, and render a judgment

against the defendant for such costs. At the time the judge or magistrate

imposes sentence, the judge or magistrate shall notify the defendant of both of

the following:

(i) If the defendant fails to pay that judgment or fails to timely make

payments towards that judgment under a payment schedule approved by the

court, the court may order the defendant to perform community service in an

amount of not more than forty hours per month until the judgment is paid or

until the court is satisfied that the defendant is in compliance with the approved

payment schedule.

(ii) If the court orders the defendant to perform the community service,

the defendant will receive credit upon the judgment at the specified hourly

credit rate per hour of community service performed, and each hour of

community service performed will reduce the judgment by that amount.

{¶ 44} The State concedes that the trial court erred in failing to provide the notice

required by R.C. 2947.23(A)(1). Both the State and Jeffery agree that an appropriate remedy
 22

would be to remand the case to the trial court for re-sentencing so that proper notification can

be provided by the trial court. In his Reply Brief, however, Jeffery goes further and “requests

that this Court modify the trial court’s judgment by eliminating the requirement that he must

perform community service if he does not pay court costs.” Reply Brief, p. 7. In support of

his request, Jeffery cites State v. Henderson, 2d Dist. Montgomery No. 24701,

2012-Ohio-3283. In that case, we wrote, at ¶ 12-13:

In the case before us * * * the error is in the trial court’s having failed to

advise the defendant that he could be required to perform community service in

lieu of paying court costs * * * . Therefore, we agree with the State that

Henderson can receive a complete remedy by eliminating the possibility that he

can ever be required to perform community service in lieu of paying court

costs; if the performance of community service is not a possibility, then he is

not prejudiced by the trial court’s having failed to inform him of that

possibility.

The State has indicated that it would be satisfied with this solution,

even though it eliminates the possibility that Henderson can ever be required to

perform community service if he fails to pay court costs. Accordingly, * * *

we accept this as the proper remedy in this case.

{¶ 45} In Henderson, the State agreed to a modification of the defendant’s sentence

to remove the possibility of having to perform community service. This was understandable

because the defendant in Henderson was sentenced to life in prison without the possibility of

parole. The State has not agreed to a similar modification in this case. We see no reason to
 23

make this modification based on the facts before us. Therefore, the case will be remanded for

the proper imposition of court costs.

{¶ 46} The Fourth Assignment of Error is sustained.

VII. Conclusion

{¶ 47} Jeffery’s Fourth Assignment of Error having been sustained, and his other

assignments of error having been overruled, that part of the judgment of the trial court

imposing court costs is Reversed, the judgment of the trial court is Affirmed in all other

respects, and this cause is Remanded for the re-imposition of court costs consistent with this

opinion.

.............

FROELICH and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck
Kirsten A. Brandt
Kristopher A. Haines
Hon. Michael Tucker