[Cite as State v. Reed, 2014-Ohio-644.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-13-11
v.
DAVID E. REED, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 13-CR-0002
Judgment Affirmed
Date of Decision: February 24, 2014
APPEARANCES:
Randy F. Hoffman for Appellant
Douglas D. Rowland for Appellee
Case No. 16-13-11
ROGERS, J.
{¶1} Defendant-Appellant, David Reed, appeals the judgment of the Court
of Common Pleas of Wyandot County convicting him of two counts of rape and
one count of gross sexual imposition and sentencing him to 25 years to life in
prison. On appeal, Reed argues that the trial court erred by: (1) denying his
motion for acquittal at the end of the State’s evidence; and (2) entering a guilty
verdict that was against the manifest weight of the evidence. Reed also contends
that he was denied effective assistance of counsel. For the reasons that follow, we
affirm the trial court’s judgment.
{¶2} On January 9, 2013, the Wyandot County Grand Jury returned an
indictment against Reed charging him with two counts of rape in violation of R.C.
2907.02(A)(1)(b), felonies of the first degree and one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree.
{¶3} A jury trial was held in this matter on August 21, 2013. The following
relevant evidence was adduced during the State’s case-in-chief.
{¶4} The first witness to testify for the State was M.R. He testified that he
is currently 15 years old and his birthday is in August, 1998. M.R. stated that
Reed is his grandfather on his father’s side. He also stated that he lived in Reed’s
basement from 2005 to 2008 or 2009 in Wyandot County with his father and his
mother.
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{¶5} M.R. stated that sometimes he would sleep in Reed’s bed with him.
M.R. then stated:
A: Well, [Reed] pulled down my pants and – well, PJs, of course.
And he got something from his, like suitcase or something, and,
well, he stuck it up my butt. And, well, he told me that if I told
anybody – before that, he said that it was God’s fault. He did it to
me because I was a bad child. And he said if I told anybody, that I
would be in severe trouble.
Q: Do you remember how old you were when this happened
[M.R.]?
A: Well, not a specific time. It was when I was about ten. But
before that, it would be from seven to ten.
Trial Tr., p. 93-94. M.R. described the object that was inserted inside of him as
being made of metal, silver and shiny, and the size of a pencil. Id. at 95. The
suitcase that the object was kept in was described as being black with gold locks
on it and “something that a lawyer would have.” Id. M.R. then made an in-court
identification of Reed.
{¶6} On cross-examination, M.R. was asked why he waited four years to
tell anyone about what had happened, and M.R. replied that Reed had begun doing
the same thing to his younger brother. M.R. and Reed’s defense counsel then had
the following exchange:
Q: Isn’t it true that this came about after your mom and your dad
were fighting over where you were going to live?
A: Yea, I guess. Sort of.
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Q: Isn’t it true that you and our mom had discussed this prior to
reporting anything?
A: Yes.
Q: And at that time, you were living at your father’s correct, with
your father?
A: Yes.
Q: Isn’t it true that your mom is the one who wanted you to tell
somebody about this?
A: Yes.
***
Q: And since you’ve been living with your mom, excuse me --
before you moved in with your mom, you and your mom discussed
what you were going to say, correct?
A: No. I just told them the truth.
Q: You and your mom discussed what you were going to say when
you went and told somebody, correct, whether it was Children
Services or a police officer, correct?
A: They just told me to tell the truth.
Q: Okay. Your mom didn’t talk about what you were going to
say?
A: No.
Id. at p. 99-100.
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{¶7} Reed then asked “[i]sn’t it true that it’s not Mr. Reed who actually did
this to you, it was Mark Reed, your father?” Id. at p. 101. M.R. replied that both
his father and Reed would insert objects inside of him. Id.
{¶8} M.R.’s mother, Virgy Gault, then testified for the State. Gault stated
that she moved to Sycamore to live with Reed in early February of 2005 and left in
2007 when she separated from her husband, Mark Reed. When she lived in
Sycamore, Reed and his wife lived upstairs while she lived in the basement with
Mark and their children. While Gault moved out in 2007, her children stayed at
Reed’s residence until the end of the 2008-2009 school year. Once Gault learned
of the allegations M.R. made against Reed, she called the police department.
Gault also denied making up these allegations in order to gain custody of her
children.
{¶9} Gault testified that M.R. is “struggling a lot with everything going
on.” Id. at p. 108. She explained that M.R. has become emotional and sensitive
and has mentioned suicide a couple of times. She also testified that in 2009, M.R.
“started have sexual expressions that he should not have been having at that age.”
Id. at p. 110. Gault testified that M.R. was “caught putting a pencil up his butt” in
2010. Id. at p. 111. After Gault separated from Mark, she had visitation with
their children every other weekend. Gault testified that she obtained custody of
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her children in September of 2012, after M.R. made these allegations against
Reed.
{¶10} On cross-examination, Gault denied discussing these allegations after
the custody dispute arose and stated that “[t]hese allegations are the reason that the
custody issue arose.” Id. at p. 113-14. She also denied telling M.R. what to say to
Children Services. Gault testified that there is a case pending in Seneca County
for custody of her children.
{¶11} J.P. was the next witness for the State. He testified that his birthday
is November 19, 1998. J.P. stated that he knew Reed from Boy Scouts and that
Reed was his Scout leader.
{¶12} J.P. stated that in the Summer of 2011, when we was twelve years
old, he and Reed went to Scout Village, located in Wyandot County, to paint a
shed. Once they were done painting, J.P. went swimming in the pond. After J.P.
was done swimming, he took his boxers off so they would dry. Reed then told J.P.
he needed to check him for leeches and began touching and rubbing J.P. When
asked where Reed touched and rubbed J.P., he replied “down by my balls.” Id. at
p. 130. J.P. testified that Reed did not look for leeches anywhere else on his body.
The touching and rubbing lasted for about five minutes. Reed stopped touching
and rubbing J.P. once other campers pulled into Scout Village.
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{¶13} J.P. testified the next day after the pond incident Reed hurt him
again. J.P. went over to Reed’s house to mow his yard. After mowing Reed’s
yard for about an hour and a half, J.P. went inside Reed’s house to get a drink of
water. J.P. then testified that Reed held him down and “touch[ed] me down by my
butt and rubb[ed] his penis all over me.” Id. at p. 139. J.P. stated:
A: He rubbed it on me. Then he stuck something in me.
Q: He stuck something in you?
A: Yes.
Q: Okay. Where did he stick it in you?
A: My butt.
Q: Okay. Do you know what it was that he stuck in your butt?
A: No.
Q: Do you know what it felt like?
A: It was smooth.
Q: It was smooth. Okay. Do you know if it was his penis that he
stuck in your butt?
A: It wasn’t.
Q: It wasn’t?
A: No. It was something that looked like a fake penis.
Q: Something that looked like a fake penis. Do you remember
how big it was?
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A: No.
Q: Do you remember what color it was?
A: It was white.
Q: It was white. What else happened?
A: He was masturbating.
***
Q: Okay. How long did this happen, [J.P.]?
A: A good fifteen minutes.
***
Q: This went on for about fifteen minutes. Do you remember what
happened after that?
A: Yeah.
Q: What happened?
A: He ejaculated and he came on my butt.
Q: Did he ever stick his penis in you, [J.P.]?
A: No.
Id. at p. 140-42.
{¶14} After this incident occurred, Reed took J.P. outside and hit him with
a stick and said “if I told anybody, he was going to hurt me more than he already
did.” Id. at p. 143. J.P. stated that these two incidents happened in September of
2011. J.P. stated that he quit the Boy Scouts after he went to a Boy Scout camp
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and got tied to a tree by another Boy Scout. J.P. stated that this happened after
Reed touched him. J.P. was never asked to make an in court identification of
Reed.
{¶15} On cross-examination, J.P. stated that he was frequently bullied by
other Boy Scouts. J.P. went to Reed to report the bullying, but Reed told him that
“boys will be boys[.]” J.P. admitted that he was not happy with Reed’s response
and that he and his mom went to the police about the bullying, but the police
couldn’t do anything about it. J.P. also testified:
Q: That made you more mad, didn’t it?
A: Yeah.
Q: You told them you wanted people to get in trouble, didn’t you?
A: Yeah.
Q: You wanted Mr. Reed to get in trouble, didn’t you?
A: Yes.
Id. at p. 148.
{¶16} J.P. also denied speaking about the allegations with M.R. J.P.
admitted that the first time he was interviewed by Wyandot County Children
Services he did not make any allegations against Reed. Further, J.P. stated:
Q: Isn’t it true, at that second interview, the allegation you made
was the allegation from the Boy Scout camp?
A: No. I made more.
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Q: Okay. You know that one is recorded, as well, correct?
A: Yeah.
Q: So if we were to view that video, you would have said
something on that video then?
A: If you view that video, there is going to be everything I just told
you.
Q: Okay. Isn’t it true that you never made an allegation about Mr.
Reed sticking something up your butt until after you spoke to
[M.R.]?
A: No. That’s not true. I never spoke to him about this.
Q: Isn’t it true that your story even changed today? When you
were interviewed by any of those three people, did you ever make
any statements about leeches on your body?
A: Yeah, but there were none on there. I made the statement that
he was checking me for leeches.
Q: Two of those interviews were recorded. On two of those
interviews, you never made a statement about leeches, did you?
A: Yes, I did.
Q: And isn’t it true when you were interviewed in Toledo, you
didn’t say he stuck a fake penis up your butt. You said he stuck his
penis up your butt, didn’t you?
A: No. I said he stuck a fake penis in my butt.
Id. at p. 150-52.
{¶17} Detective Kerwin Wiseley from the Wyandot County Sheriff’s
Office then testified for the State. He testified that J.P.’s allegation that he was
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tied to a tree at a Boy Scout camp was originally reported to the Wyandot County
Sheriff’s Office on July 16, 2011. Id. at p. 157.
{¶18} At the close of the State’s evidence, Reed moved for a Crim.R. 29
motion for acquittal, which the trial court denied. During Reed’s case-in-chief, the
following relevant evidence was adduced.
{¶19} Reed testified that in 2009, he lived in Sycamore, Ohio with his wife,
son, daughter-in-law, and their children, M.R., A.R., and V.R. Reed denied ever
being alone with M.R. in his house. Reed replied that “[t]here was always
somebody around[.]” Id. at p. 163. Reed stated that M.R. never slept in his
bedroom. Reed did admit to owning a briefcase with gold locks on it. He stated
that he used an attaché case and kept his “Boy Scout stuff in it.” Id. at p. 164.
Reed stated that he carried it to all his Boy Scout meetings. He denied ever
touching M.R. inappropriately or touching M.R. with any inappropriate objects.
{¶20} Reed testified that he was in the Boy Scouts since 1986. Reed stated
that he and J.P. would spend time together at Scout Village. Reed stated that he
and J.P. were fixing up a shed in Scout Village and J.P. wanted to go swimming in
the pond. When Reed told him it was time to go, J.P. got out of the water, went to
the passenger side of his truck, and changed his clothes. Reed stated that he was
on the driver’s side of the truck. Reed denied ever having any conversation with
J.P. about leeches and testified that he never touched J.P. inappropriately.
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{¶21} Reed also confirmed that J.P. did come to his house the next day. He
stated his wife was present. He stated that J.P. sat down in his family room and
watched a video. Reed testified that he and J.P. did not do any chores that day and
that he was watching J.P. until his mother got home from work. He stated that J.P.
was only at his house for a half hour. Reed denied ever being alone with J.P. on
that day and stated that his wife was present the entire time.
{¶22} Reed also offered testimony that J.P. had gotten in trouble with his
grandmother and that he spanked J.P. as a punishment on one occasion. Reed
stated:
So then I went out and got [J.P.]. I took him back out to the house --
or out to the house that night so he could spend the night. We went
outside. I used -- I paddled him, because I was asked to do that. I
used my hand. I did not use a stick or beat him with anything else. I
used my hand. I explained to him, I said, I will never hit you with a
stick, or a belt, or anything like that. I’m using my hand.
I probably whacked him three or four times, maybe five. Then
we went back in the house. He had his clothes on at that time. I had
all of my clothes on. We went back in the house. He went into the
guest bedroom and went to bed. I went into my bedroom and went
to bed. At no time did I have any other contact with him.
Id. at p. 172-73.
{¶23} When asked about what happened to J.P. at the Boy Scout camp,
Reed replied that he was not there when it happened but learned about the incident
later. He stated the Hancock County Sheriff’s Office contacted him and was
investigating the incident. Reed testified that he cooperated with their
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investigation. When asked whether J.P. got mad over how he handled the
situation, Reed replied, “I don’t think [J.P.] got as mad at me that much as his
mother did. I had to follow what the [Boy Scout Association] told me to do, and I
cooperated with Hancock County.” Id. at p. 176.
{¶24} On cross-examination, Reed had the following relevant exchange
with the State:
Q: Are you saying you would never, ever allow yourself to be
alone with one of [your grandchildren]? Is that what you’re saying?
A: Right.
Q: Okay. And was that [a] rule because you have an attraction to
young children?
A: No.
Q: So is it your testimony here today that you have absolutely no
attraction to young men?
A: No.
Q: And you would never view young men in a state of nudity?
A: What’s that?
Q: Are you saying you would never view young men in a state of
nudity?
A: Yes, I have.
Q: Yes, you have.
A: On the internet.
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Q: On the internet. Okay. And what young -- when did this occur?
A: Late 2006, 2007.
Q: So you’re testifying here today that you have, and you do have
an attraction for young men then, if you’re watching young men in
the state of nudity on the internet?
A: I don’t have an attraction for them.
Id. at p. 182-83. Reed denied watching child pornography and insisted that it was
adult pornography and it was always “teenagers, or eighteen and older.” Id. at p.
184.
{¶25} Reed stated that he was always by himself when he was watching
pornography and that he only watched the pornography for six or seven weeks in
late 2006, early 2007. Reed also stated that he was always clothed when watching
pornography.
{¶26} The State then called Tina Reed as a rebuttal witness. Tina testified
that Reed is her father-in-law and that she lived with Reed from 2009-2011. Tina
stated that Reed would sometimes watch M.R. and his younger brother when their
father brought them over to visit. Tina also stated that she observed Reed
watching child pornography on her computer.1 Tina testified:
Q: Okay. And what, if anything, disturbing did you see?
1
Reed’s trial counsel objected to Tina’s testimony regarding the pornography as irrelevant. However, the
trial court overruled Reed’s objection and ruled that the proposed testimony would be relevant to his
credibility.
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A: [Reed] sitting at the computer chair naked watching porn, child
porn.
Q: Why do you say it was child porn?
A: Because I could see it.
Q: Okay.
A: It was little boys.
Q: Okay. And when you say “little boys,” can you tell me how
old they were?
A: They couldn’t have been older than fifteen.
Q: Okay.
A: They were young.
Id. at p. 201.
{¶27} Tina also stated she would see Reed looking at this type of
pornography almost every day. Tina stated that she, personally, never confronted
Reed about the pornography but there was a “family meeting” where her family
asked Reed about the pornography. Id. at p. 202. Reed stated that he was
watching it to see the different penis sizes. Id. Tina stated that she left her child
alone with Reed.
{¶28} On cross-examination, Tina explained that she and her husband got
Reed a computer from Rent-A-Center to use. She stated that she gave the
computer to Detective Wiseley after M.R. made allegations against Reed. Tina
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then explained where she would be, in relation to Reed, when he was looking at
child pornography.
A: To come up the stairs -- we live downstairs in the basement.
You have to come up the stairs, in the door, into a living room. Go
through the kitchen, which connects to the living room, to another
living room. In that other living room, there is a computer desk in
this corner, and the bathroom is over here in the hallway.
Q: So you’re on the opposite side of the room, correct?
A: Yes.
Q: How far away would you say you were?
A: It’s not that far. I don’t know. Probably five feet, maybe.
Q: You’re five feet away from a naked guy looking at child porn --
A: Yes.
Q: -- on a regular basis?
A: Yes.
Q: That’s your testimony, that on a regular basis --
A: Yes.
Q: -- he would be naked, looking at child porn five feet away from
you?
A: Yes.
Q: And you lived there for how long?
A: Two years. About two years.
Id. at p. 205.
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{¶29} The State also called Detective Wiseley again as a rebuttal witness.
Detective Wiseley stated that when he learned that Reed might be viewing child
pornography, he took the computer into the custody of the Wyandot County
Sheriff’s Office. He stated that Tina, as the owner of the computer, gave him
permission to take the computer. Detective Wiseley stated that the computer was
sent to Ohio Bureau of Criminal Investigation (“BCI”) for analysis but has not
received the results yet.
{¶30} On cross-examination, Detective Wiseley testified that he took
possession of the computer a year ago, in September of 2012. He also stated that
he sent the computer to BCI six weeks ago. Detective Wiseley then had the
following relevant exchange:
Q: So you guys didn’t send it in -- your department didn’t send it
in to BCI for analysis until six weeks prior to trial, correct?
A: That’s correct.
Q: You’ve had it in your possession for ten and a half months?
A: I already answered that. Yes, sir.
Id. at p. 209.
{¶31} Both the State and Reed offered their closing statements and the trial
court charged the jury before deliberations.
{¶32} That same day, the jury returned guilty verdicts on all counts. The
trial court ordered a presentence investigation report (“PSI”) and this matter
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proceeded to sentencing on September 20, 2013. After hearing evidence and
argument related to punishment, the trial court imposed the sentence as follows:
(1) 10 years to life in prison for the first rape count; (2) 10 years to life for the
second rape count; and (3) five years in prison for the gross sexual imposition
count, all to be run consecutively. As such, the trial court imposed a total prison
term of 25 years to life.
{¶33} Reed filed this timely appeal, presenting the following assignments
of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DENYING APPELLANT’S MOTIONS [SIC] FOR
ACQUITTAL AT THE END OF THE STATE’S EVIDENCE,
AS THE EVIDENCE PRESENTED WAS INSUFFICIENT
FOR A CONVICTION
Assignment of Error No. II
THE JURY VERDICT OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. III
APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL
BY THE INEFFECTIVE ASSISTANCE OF COUNSEL.
Assignment of Error No. I
{¶34} In his first assignment of error, Reed argues that the trial court erred
by denying his motion for acquittal because the State presented insufficient
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evidence for a conviction. Specifically, Reed argues that because J.P. failed to
make an in-court identification of Reed, the trial court should have granted his
motion for acquittal on counts two and three. We disagree.
Standard of Review
{¶35} Under Crim.R. 29(A), “a court shall not order an entry of judgment
of acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved
beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261 (1978),
syllabus. Consequently, a motion for acquittal tests the sufficiency of the
evidence. State v. Miley, 114 Ohio App.3d 738, 742 (4th Dist.1996).
{¶36} When an appellate court reviews a record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d
384, 2005–Ohio–2282, ¶ 47. Sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, the question of whether the offered evidence is sufficient to sustain a
verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-
Ohio-2079, ¶ 4.
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R.C. 2907.02(A)(1)(b)
{¶37} Reed was charged with two counts of rape in violation of R.C.
2907.02(A)(1)(b), which provides:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender
but is living separate and apart from the offender, when any of the
following applies:
***
(b) The other person is less than thirteen years of age, whether or
not the offender knows the age of the other person.
Further, “sexual conduct” is defined as:
[V]aginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part
of the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another. Penetration, however slight, is
sufficient to complete vaginal or anal intercourse.
R.C. 2907.01(A).
{¶38} On appeal, Reed argues that M.R.’s and J.P.’s testimony was
incredible, and thus the trial court erred in denying his motion for acquittal.
However, credibility issues pertain to the weight of the evidence, not sufficiency
of the evidence. See Thompkins, 78 Ohio St.3d at 388-90. Thus, we will not
address this issue until we discuss Reed’s second assignment of error regarding
manifest weight.
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{¶39} Reed also asserts that J.P. never made an in-court identification of
Reed, and thus he should have been acquitted on counts two and three. Generally,
there is no requirement that in criminal cases a defendant must be identified in
court by a witness. State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-
488, ¶ 19; In re W.S., 11th Dist. Geauga No. 2009-G-2878, 2009-Ohio-5427, ¶ 41;
State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶ 14. “
‘Identity may be established by direct evidence, but direct evidence of
identification is not required; circumstantial evidence may be sufficient to
establish the identity of [the] accused as the person who committed the crime * *
*.’ ” State v. Scott, 3 Ohio App.2d 239, 244-45 (7th Dist.1965), quoting 23 C.J.S.
Criminal Law § 920, p. 645; see also State v. Brown, 10th Dist. Franklin No.
07AP-244, 2007-Ohio-6542, ¶ 19.
{¶40} M.R. was the first witness to testify for the State and he made a
positive in court identification of Reed and also mentioned him by name. J.P.
subsequently took the stand and identified Reed by name. Both M.R. and J.P.
testified that Reed lived in Sycamore, Ohio. Viewing the evidence in the light
most favorable to the State, we find that there was enough circumstantial evidence
presented to prove Reed’s identity.
{¶41} Further, both M.R. and J.P. testified that Reed inserted an instrument
into their anal openings. M.R. and J.P. both testified that they were under the age
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of 13 when this sexual conduct occurred. Therefore, we find that at the conclusion
of the State’s evidence, a rational trier of fact could have found that the State
proved the essential elements of rape beyond a reasonable doubt.
R.C. 2907.05(A)(4)
{¶42} Reed was also charged with one count of gross sexual imposition in
violation of R.C. 2907.05(A)(4) which states:
(A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the offender,
to have sexual contact with the offender; or cause two or more
persons to have sexual contact when any of the following applies:
***
(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of
that person.
Further, “sexual contact” is defined as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or
if the person is female, a breast, for the purpose of sexually arousing or gratifying
either person.” R.C. 2907.01(B).
{¶43} As mentioned above, at the close of the State’s evidence, J.P. had
testified that he was under the age of 13 when Reed touched his genitals while
they were at Scout Village. J.P. testified that Reed only checked for leeches
around his genitals and nowhere else on his body. Further, J.P. stated that Reed
stopped abruptly once other campers arrived at Scout Village. Therefore, the State
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provided sufficient evidence that Reed had sexual contact with J.P., a minor under
the age of 13, with the purpose to sexually gratify himself.
{¶44} Accordingly, we overrule Reed’s first assignment of error.
Assignment of Error No. II
{¶45} In his second assignment of error, Reed argues that his convictions
were against the manifest weight of the evidence. We disagree.
Standard of Review
{¶46} When an appellate court analyzes a conviction under the manifest
weight standard, it “sits as the thirteenth juror.” Thompkins, 78 Ohio St.3d at 387.
Accordingly, it must review the entire record, weigh all of the evidence and its
reasonable inferences, consider the credibility of the witnesses, and determine
whether the fact finder “clearly lost its way” in resolving evidentiary conflicts and
“created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). When applying the manifest weight standard, a reviewing court
should only reverse a trial court’s judgment “in exceptional case[s]” when the
evidence “weighs heavily against the conviction.” Id. at paragraph three of the
syllabus.
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Evidence at Trial
{¶47} In addition to the State’s case-in-chief, Reed took the stand to testify
in his defense. On direct examination, Reed stated that he was never alone with
M.R. and never touched him inappropriately. Further, Reed admitted to being
alone with J.P. at Scout Village the day the alleged sexual contact took place, but
adamantly denied ever seeing J.P. naked, or touching him in an inappropriate
manner. Reed also admitted that J.P. came over to his house the day after he and
J.P. went to Scout Village, but stated that J.P. watched a movie the entire time.
Again, Reed denied touching J.P. or inserting anything into J.P.’s anus.
{¶48} On cross-examination, Reed admitted to watching pornography of
young men, but insisted that it was “eighteen years or older.” Trial Tr., p. 189.
Reed also stated that it was only for six or seven weeks and that he was always
fully clothed and by himself when watching the pornography.
{¶49} The State called Tina Reed as a rebuttal witness, who testified that
she saw Reed watch child pornography on her computer while she was living with
Reed from 2009-2011. She further testified that Reed would watch this child
pornography naked. The State also recalled Detective Wiseley to the stand, who
confirmed that he confiscated the computer on which Reed was allegedly
watching child pornography. Although the computer had been in the possession
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of the Wyandot County Sheriff’s Office for almost a year, the computer was sent
to BCI only six weeks before the trial for analysis.
{¶50} On appeal, Reed’s only argument that the jury’s verdict was against
the manifest weight of the evidence is that M.R.’s and J.P.’s testimony was
incredible. Thus, the jury should have believed Reed’s version of events and
found him not guilty.
{¶51} “It is well-established that ‘[w]hen conflicting evidence is presented
at trial, a conviction is not against the manifest weight of the evidence simply
because the jury believed the prosecution testimony.’ ” State v. Bates, 12th Dist.
Butler No. CA2009-06-174, 2010-Ohio-1723, ¶ 11, quoting State v. Bromagen,
12th Dist. Clermont No. CA2005-09-087, 2006-Ohio-4429, ¶ 38. Further, the
credibility of witnesses is primarily an issue for the trier of fact. State v. Payne, 3d
Dist. Hancock No. 5-04-21, 2004-Ohio-6487, ¶ 15. Accordingly, this court must
afford the decision of the trier of fact the appropriate deference when considering
such credibility issues. We will not substitute our judgment for that of the trier of
fact on the issue of witness credibility unless it is patently clear that the fact finder
lost its way. Payne at ¶ 15; see also State v. Parks, 3d Dist. Van Wert No. 15-03-
16, 2004-Ohio-4023, ¶ 13.
{¶52} Reed’s credibility was attacked when Tina’s testimony conflicted
with Reed’s. While Reed stated he watched male pornography of young men who
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were over the age of 18, Tina stated that she saw Reed watch pornography of boys
who were under the age of 15. Reed also stated that he was never naked when he
viewed the pornography, but Tina testified that he would sit in a chair, naked,
when he watched pornography. Lastly, Reed testified that he only watched
pornography for six or seven weeks, whereas Tina testified that he watched the
pornography for over a year and a half.
{¶53} Looking at all the evidence before us, we cannot say the trier of fact
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. The trier of fact was in the best position
to hear all of the witnesses’ testimony, observe the witnesses, and determine their
reliability. Further, there is limited evidence in the record before us indicating that
Reed’s version of events was entirely credible. Reed was contradicted when the
State presented its rebuttal witnesses. Further the two victims’ testimony was
corroborated by the State’s other witnesses, and also by Reed himself.
{¶54} Accordingly, we overrule Reed’s second assignment of error.
Assignment of Error No. III
{¶55} In his third assignment of error, Reed argues that he was denied
effective assistance of counsel. Specifically, Reed argues that his trial counsel was
ineffective because he did not make objections to improper questioning throughout
the trial. We disagree.
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{¶56} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of syllabus. “To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different.” Id. at paragraph three of syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by
constitutional amendment on other grounds as recognized by State v. Smith, 80
Ohio St.3d 89, 103, 1997-Ohio-355.
{¶57} Further, the court must look to the totality of the circumstances and
not isolated instances of an allegedly deficient performance. State v. Barnett, 3d
Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶ 45. “Ineffective assistance does not
exist merely because counsel failed ‘to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it.’ ” Id., quoting Smith v.
Murray, 477 U.S. 527, 106 S.Ct. 2661 (1986).
{¶58} Generally, trial tactics, even questionable ones, do not constitute a
deprivation of effective counsel. State v. Ray, 3d Dist. Union No. 14-05-39, 2006-
Ohio-5640, ¶ 63. Further, “trial counsel’s failure to make objections is within the
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realm of trial tactics and does not establish ineffective assistance of counsel.”
State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-Ohio-4183, ¶ 31; Ray,
2006-Ohio-5640, ¶ 63.
{¶59} On appeal, Reed argues that his trial counsel failed to object to
prejudicial and improper comments the prosecutor made during voir dire, opening
statements, cross-examination, and in closing statements. Upon our review of the
record, the actions of Reed’s trial counsel appear to have been tactical or strategic
trial decisions. As such, the actions or inactions of Reed’s trial counsel do not fall
below an objective standard of reasonable representation. Further, the inactions of
Reed’s trial counsel did not create any reasonable probability of a different
outcome.
{¶60} Reed also argues that the prosecutor made an improper statement in
his closing argument when he stated that “[k]ids just don’t make that sort of stuff
up * * * it had a ring of truth to it[]” and that his trial counsel was ineffective for
failing to object to the alleged misconduct. Trial Tr., p. 222. Generally, the State
is granted “wide latitude” in its closing statements. State v. Lott, 51 Ohio St.3d
160, 165 (1990). However, a prosecutor may not vouch for the truthfulness of a
witness. State v. Masing, 6th Dist. Ottawa No. OT-01-022, * 3, 2002-Ohio-1873.
This is because “expressions of personal opinion by the prosecutor are ‘a form of
unsworn, unchecked testimony and tend to exploit the influence of the
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prosecutor’s office and undermine the objective detachment that should separate a
lawyer from the cause being argued.’ ” State v. Baldev, 12th Dist. Butler No.
CA2004-05-106, 2005-Ohio-2369, ¶ 21, quoting State v. Rahman, 23 Ohio St.3d
146, fn 8 (1986). However, “the touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial, not the culpability of
the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
{¶61} Reed does not raise in a separate assignment of error that the State
engaged in prosecutorial misconduct,2 only that his trial counsel was ineffective
for failing to object to this one incident of alleged misconduct. When a trial
counsel fails to object to a prosecutor’s repeated “pejorative ranting at his client’s
expense” courts have found that his performance fell below an objective standard
of reasonable representation. State v. Carpenter, 116 Ohio App.3d 615, 626, (2d
Dist.1996). In Carpenter the prosecutor “went beyond merely arguing reasonable
inferences from the facts, and asserted as fact that the defendant was a liar and that
the state’s witnesses were honest.” Id. at 624. The prosecutor made repeated
improper comments throughout the trial, without a single objection from the
defense counsel. Id. We find the present matter distinguishable, as the
prosecutor’s comment was an isolated incident and had almost no effect on the
fairness of Reed’s trial. Therefore, the decision of Reed’s trial counsel not to
2
Although it appears that the State’s statement during its closing argument came close to witness vouching,
whether the State engaged in prosecutorial misconduct was not raised by Reed and we decline to address
the issue.
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object during the State’s closing statement was a tactical decision and was
reasonable under Strickland standards.
{¶62} Accordingly, we overrule Reed’s third assignment of error.
{¶63} Having found no error prejudicial to Reed in the particulars assigned
and argued, we affirm the trial court’s judgment.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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