[Cite as State v. Cooper, 2011-Ohio-1822.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 23930
Plaintiff-Appellee :
: Trial Court Case No. 08-CR-1431
v. :
: (Criminal Appeal from
DONALD COOPER : (Common Pleas Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 15th day of April, 2011.
...........
MATHIAS H. HECK, JR., by TIMOTHY J. COLE, Atty. Reg. #0084117, 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
DONALD COOPER, A589-973, Lebanon Correctional Institution, Post Office Box 56,
Lebanon, Ohio 45036
Defendant-Appellant, pro se
.............
FAIN, J.
{¶ 1} Defendant-appellant Donald Cooper appeals from the denial of his
petition for post-conviction relief, without a hearing. Cooper contends that the trial
court should have held a hearing upon his claims that his trial counsel was ineffective
for having failed to obtain, and produce, various items of evidence at his trial.
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{¶ 2} We conclude that the trial court properly denied his petition without a
hearing. With one exception, Cooper’s claims that favorable evidence existed are
entirely speculative. The one exception is a record generated while Cooper was in
prison, following his conviction, indicating the existence of a physical impairment that
would limit his lifting ability to ten pounds. But it is clear that this record did not exist
at the time of trial, so trial counsel, who did present some evidence of Cooper’s
physical limitations, and used that evidence in his closing argument, can hardly have
been ineffective for having failed to submit a piece of evidence that did not exist at
the time of trial.
I
{¶ 3} The facts are set forth in our opinion in Cooper’s direct appeal, State v.
Cooper, Montgomery App. No. 23143, 2010-Ohio-5517, ¶¶ 2-9, as follows:
{¶ 4} “Shortly after 6:00 a.m. on March 29, 2008, twenty-year-old D.D. was
on her way home from work. When she got off of the bus in downtown Dayton, she
called her mother to pick her up, who told her daughter that she (the mother) did not
have enough gas. Not wanting to wait for another bus, D.D. decided to walk to the
Five Oaks neighborhood in which she lived.
{¶ 5} “As D.D. walked north on Main Street, approaching Helena Street, she
heard a man at the bus stop across the street call out, ‘Hey girl. Come here.’ D.D.
looked up and saw the man (later identified as Cooper) walking toward her. D.D.
kept walking, but Cooper started walking faster, catching up to her. Cooper grabbed
D.D.'s arm and asked her where she was going, insisting that he wanted to talk to
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her. The two talked for a couple of minutes, then D.D. told Cooper that she had to
get home to her daughter.
{¶ 6} “Being only two blocks away from her home, D.D. tried to walk away,
but Cooper followed her, continuing to talk. Becoming more concerned, D.D. sent a
text message to her mother, asking for help. Cooper suddenly kissed D.D., who
pushed him away, and repeated that she needed to get home to her child. Cooper
grabbed her arm and told her, ‘You're not going anywhere.’ As Cooper dragged
D.D. into an alley, she hit the send button on her phone to text her mother again.
{¶ 7} “In the alley, Cooper pushed D.D. onto her knees and shoved his penis
into her mouth. Cooper then withdrew his penis and forced D.D. to masturbate him.
D.D. managed to call her mother, who could hear her begging someone to leave her
alone. The call was disconnected, and D.D.'s mother left the house to look for her
daughter. D.D. claimed that Cooper then turned her around and pulled down her
pants. D.D. testified on direct examination that Cooper vaginally raped her from
behind, but on re-direct examination, she testified that Cooper anally raped her.
When Cooper withdrew, D.D. ran down the alley to her home, where she told her
siblings what had happened. D.D.'s mother arrived home a couple of minutes later,
and the family went looking for Cooper, finding him back at the bus stop where D.D.'s
ordeal began. They saw a police officer at a nearby store and reported the attack.
{¶ 8} “The officer arrested Cooper, and D.D. was taken to the hospital. She
suffered from cut, swollen, and bruised lips, bruising to both arms, and an abrasion to
her cervix. Cooper was indicted on two counts of rape and one count of gross
sexual imposition.
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{¶ 9} “Cooper testified that he had sex with D.D., but he insisted that it was
consensual. He said D.D. was a prostitute and that he paid her $20 and shared
some crack cocaine with her in exchange for oral sex that morning. Cooper also
offered the testimony of Daphne Tillman, a drug addict and prostitute with an
extensive criminal history. Tillman claimed that she knew D.D. to be a prostitute.
She testified that she saw D.D. and Cooper smoking crack cocaine at the bus stop
before walking together down the alley.
{¶ 10} “On rebuttal, the State offered the testimony of several police officers
who stated that D.D. did not appear to be under the influence of either drugs or
alcohol when they spoke to her. A detective in the vice squad was not familiar with
either D.D .'s name or her face, and at the time of this offense there were no police
records for D.D. for any crime, including prostitution.
{¶ 11} “A jury found Cooper guilty of gross sexual imposition and one count of
rape for the act of fellatio, but not guilty of the other count of rape. The trial court
ordered Cooper to serve consecutive sentences of ten years for rape and eighteen
months for gross sexual imposition. * * *.”
{¶ 12} On his direct appeal, Cooper’s conviction was affirmed. Id.
{¶ 13} Cooper filed a petition for post-conviction relief. The trial court denied
the petition, without a hearing. This appeal is taken from the order denying his
petition for post-conviction relief.
II
{¶ 14} Cooper’s sole assignment of error is as follows:
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{¶ 15} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
FAILED TO HOLD AN EVIDENTIARY HEARING BEFORE DISMISSING PETITION
FOR POST-CONVICTION RELIEF, A VIOLATION OF R.C. SECTION 2953.21 AND
THE 14TH AMENDMENT DUE PROCESS, AND SUCH FAILURE AMOUTED [sic]
TO PLAIN ERROR.”
{¶ 16} A petitioner for post-conviction relief is not automatically entitled to a
hearing upon his petition. State v. Calhoun (1999), 86 Ohio St.3d 279. Although
Cooper, in his petition, has cited various federal and state constitutional grounds for
relief, they are all predicated upon various allegations that his trial counsel was
ineffective. The absence of evidentiary documents containing sufficient operative
facts to make out a claim of ineffective assistance of trial counsel is a proper basis
for denying a petition for post-conviction relief without a hearing. State v. Kapper
(1983), 5 Ohio St.3d 36, 39.
{¶ 17} In support of his three claims for relief, Cooper set forth the following as
the facts supporting each claim:
{¶ 18} “CLAIM NUMBER ONE
{¶ 19} “ * * * *
{¶ 20} “Trial counsel failed to have examined, and submitted key evidence
which could have substantiated claim of consensual sex and proved innocence.
{¶ 21} “ * * * *
{¶ 22} “A drug analysis of alleged victim’s bodily materials contained in the
State’s rape-kit will substantiate claim of ‘sex for drugs,’ and an inspection of alleged
victim’s clothings (also in evidence) will disprove element of force by dragging alleged
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victim into allley.
{¶ 23} “ * * * *
{¶ 24} “CLAIM NUMBER TWO
{¶ 25} “ * * * *
{¶ 26} “Trial attorney failed to call an expert witness who could have
established that the prosecution’s medical documents and photos (taken hours after
alleged abrasions) were not consistent to the offenses of rape and gross sexual
imposition by force, and could have proved innocence.
{¶ 27} “ * * * *
{¶ 28} “If granted a hearing, Mrs. Janet Aubrey Jackson, Nursing Supervisor at
Good Sam. Hospital, Dayton, Ohio, who has a Master’s Degree, and seventeen (17)
years experience, will testify that had she been called at trial she could have
examined the State’s medical documents and photos, and possibly proved
innocence.
{¶ 29} “CLAIM NUMBER THREE
{¶ 30} “ * * * *
{¶ 31} “Trial counsel failed to provide key evidence which could have shed
more doubt on the prosecution’s case, and no reasonable fact finder would have
found Petitioner guilty; to wit: medical records of Petitioner, and evidence of false
testimony and false written statements made by alleged victim.
{¶ 32} “Attached hereto are the following evidence and affidavit: (1) A medical
document showing limitations of Petitioner after a physical exam done one working
day after he arrived at prison; and (2) Petitioner’s Affidavit.” (Underlining in original.)
7
{¶ 33} The “Petitioner’s Affidavit” referred to is Cooper’s own affidavit, which
essentially repeats the allegations set forth in his petition.
{¶ 34} We have the record, and the victim’s clothing was neither offered, nor
received, in evidence. Likewise, the rape kit was neither offered, nor received, in
evidence, although the Miami Valley Regional Crime Laboratory’s report concerning
its findings and conclusions from the rape kit was received in evidence as State’s
Exhibit 11.
{¶ 35} The only documentary evidence Cooper submitted in support of his
petition have to do with his claim that he had a physical infirmity, or impairment, that
would have made it unlikely that he could have “dragged” his victim off the main
street into an alley. There are two problems with this claim. The first is that the
documents in question were generated in prison after Cooper was tried and
convicted. One of these is a statement that Cooper was issued an arm and wrist
splint on September 7, 2009, which, by its terms, evidently constituted a “pass,” e.g.,
permission for Cooper to possess the splint, which would otherwise be considered
contraband. The other is a “Medical Restriction(s) Statement,” dated November 17,
2008, reflecting the existence of three long-term restrictions beginning that date:
“Low Bunk,” “Low Range,” and “No lifting greater than 10 lbs.”
{¶ 36} Cooper’s trial counsel presented evidence of Cooper’s physical
limitations at trial, and argued to the jury that these limitations made it unlikely that
Cooper could have forced his victim into the alley. Obviously, trial counsel cannot
be deemed to have been ineffective for having failed to offer the prison documents
Cooper submitted in support of his petition for post-conviction relief, since they did
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not exist at the time of trial.
{¶ 37} The second problem with this claim is that the evidence at trial did not
establish that Cooper “dragged” his victim into the alley in the most literal sense of
that verb. On direct, the victim testified that: “He grabbed my arm and took me to
the back of the alley.” When asked if she went with him willingly, or if he forced her,
she testified: “He forced me * * * .”
{¶ 38} The victim was then asked some questions about what happened on
the way to and through the alley, in which the prosecutor used the verb “to drag,” but
the victim did not use that verb. On cross-examination, defense counsel used the
verb “to pull,” and the victim did use this verb, herself, e.g.:
{¶ 39} “Q. Reached across, grabbed you with this arm, pulled you into the
alleyway?
{¶ 40} “A. Yes. Because I was turned as he was pulling me.
{¶ 41} “Q. Okay. You were turned meaning he pulled your body around?
{¶ 42} “A. Yes.”
{¶ 43} If we were to assume: (1) that the victim’s clothing from the time of the
alleged offense still existed, in the same condition, at the time that Cooper’s trial
counsel began representing him; and (2) that the victim’s clothing would have been
intact, without any unusual wear and tear, both of which assumptions are entirely
speculative, that still would not have been inconsistent with the victim’s testimony
concerning the offense. Therefore, we cannot find that trial counsel’s failure to have
sought the production of the victim’s clothing would have satisfied the prejudice
prong of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
9
674.
{¶ 44} The rest of Cooper’s claims are entirely speculative. There is no
reason to believe that an analysis of the victim’s hair would have established that she
was a crack cocaine addict. No evidence, beyond Cooper’s bare allegation, has
been submitted to establish that Janet Aubrey Jackson would have testified and
“possibly proved innocence.” And Cooper has offered no evidence, beyond his bare
assertion, that there was evidence of the victim’s false testimony and false written
statements, other than the discrepancies that trial counsel did, in fact, exploit at trial,
and the testimony of a witness, Daphne Tillman, that the victim appeared to be
smoking crack cocaine with Cooper before they went into the alley, which was, in
fact, presented to the jury at the trial.
{¶ 45} We conclude that the trial court correctly found that Cooper’s petition
for post-conviction relief lacked sufficient support, in the form of documentary
materials other than his own, self-serving affidavit, to justify an evidentiary hearing
upon his petition. Cooper’s sole assignment of error is overruled.
III
{¶ 46} Cooper’s sole assignment of error having been overruled, the order of
the trial court denying his petition for post-conviction relief is Affirmed.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Timothy J. Cole
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Donald Cooper
Hon. Dennis J. Langer