[Cite as State v. Gary, 2012-Ohio-5813.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 12CA0014
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARCUS GARY COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 11-CR-0272
DECISION AND JOURNAL ENTRY
Dated: December 10, 2012
MOORE, Judge.
{¶1} Defendant, Marcus Gary, appeals from the judgment of the Wayne County Court
of Common Pleas. This Court affirms.
I.
{¶2} On October 3, 2011, the Wayne County Grand Jury indicted Mr. Gary on one
count of rape in violation of R.C. 2907.02(A)(2) and one count of sexual battery in violation of
R.C. 2907.03(A)(1). At his arraignment, Mr. Gary pleaded not guilty, and the case proceeded to
a jury trial. The jury found Mr. Gary guilty of rape but not guilty of sexual battery. The trial
court sentenced him to ten years of incarceration on the rape conviction and to four years and
five months of incarceration as a sanction for violation of postrelease control, to which he was
subject from a prior case. Mr. Gary timely filed a notice of appeal and raises three assignments
of error for our review. We have re-ordered the assignments of error to facilitate our discussion.
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II.
ASSIGNMENT OF ERROR II
THE CONVICTION FOR RAPE WAS AGAINST THE MANIFEST WEIGHT
OF EVIDENCE.
{¶3} In his second assignment of error, Mr. Gary argues that his rape conviction is
against the manifest weight of the evidence. We disagree.
{¶4} When a defendant asserts that his conviction is against the manifest weight of the
evidence,
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). In making this determination, this
Court is mindful that “[e]valuating evidence and assessing credibility are primarily for the trier
of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing Ostendorf-Morris Co. v.
Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio
App.3d 153, 154 (12th Dist.1987).
{¶5} Here, Mr. Gary was convicted of rape in violation of R.C. 2907.02(A)(2), which
provides that “[n]o person shall engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force.” “Sexual conduct” is
defined as “vaginal 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 cavity of another. Penetration, however slight, is sufficient to complete vaginal
or anal intercourse.” R.C. 2907.01(A). In regard to “force or threat of force,” R.C. 2901.01(A)
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defines “force” as “any violence, compulsion or constraint physically exerted by any means upon
or against a person or thing.” A defendant purposely compels his victim to submit by force or
threat of force when he “uses physical force against the victim, or creates the belief that physical
force will be used if the victim does not submit.” State v. Schaim, 65 Ohio St.3d 51 (1992),
paragraph one of the syllabus. Force or the threat of force “can be inferred from the
circumstances surrounding the sexual conduct.” Schaim at 55; State v. Martin, 9th Dist. No.
94CA005909, 1995 WL 296313, *2 (May 17, 1995). Where “it can be shown that the rape
victim’s will was overcome by fear or duress, the forcible element of rape can be established.”
State v. Pordash, 9th Dist. No. 04CA008480, 2004-Ohio-6081, ¶ 12, quoting State v. Eskridge,
38 Ohio St.3d 56, 59 (1988).
{¶6} Here, as part of its case-in-chief, the State presented the testimony of the victim
(“B.S.”), three of B.S.’s adult neighbors: Morgan, Jenny and Chelsea, a sexual assault nurse, and
the responding officer. B.S. testified that, while walking home from the park one afternoon, Mr.
Gary approached her and asked her to help him find his house. She agreed and they began
walking together. When they reached a green garage across from an abandoned home, Mr. Gary
began pushing her on the chest. He then removed some of her clothes, including her bra, and
licked her breasts. B.S. was scared and nervous, and she told him to stop, but he then took her
shorts off of her as well as her underpants. B.S. explained that Mr. Gary put “[h]is fingers in
[her].” He also lowered his pants and showed her his penis, and she pushed him away. She
observed him put on a condom, and she told him to stop. Ultimately, B.S. pushed Mr. Gary
away and quickly put her clothes back on. Mr. Gary told her that, if she told anyone about the
incident, he would kill her. She then ran from the scene toward her house. On her way home,
she was crying, and two women stopped to ask her what had happened. She informed the
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women that she had been raped, and they drove her home. Thereafter, she spoke with a police
officer and went to the hospital for an examination.
{¶7} Morgan and her mother, Jenny, live nearby B.S. and testified that Morgan had
encountered Mr. Gary earlier that day. While Morgan was on her porch talking on the telephone,
Mr. Gary walked up beside her and as he sat next to her, he began touching her leg and lower
back. Morgan, who had never seen Mr. Gary, was uncomfortable and scooted away from him.
When her mother saw Mr. Gary continuously scooting toward Morgan, she went outside and told
him to leave, and he complied. Morgan then left with her friend, Marie, who had driven to
Morgan’s home.
{¶8} While Marie, Morgan, and Morgan’s neighbor Chelsea were driving in the area of
Morgan’s home, the women saw B.S. standing on the sidewalk, speaking with Mr. Gary.
Morgan was concerned for B.S. due to Mr. Gary’s earlier behavior toward Morgan, and because
Morgan believed B.S. to be “slower” and incapable “of understand[ing] fully what he could do to
her.” Morgan asked Marie to stop the vehicle nearby. She soon heard B.S. yelling, and Marie
left the car to get assistance.
{¶9} Chelsea testified that she also was concerned when they drove past B.S. and Mr.
Gary because she had heard of Morgan’s earlier encounter with Mr. Gary. After Chelsea
returned home, Marie came to her house, and the two remained on her porch, from where they
saw B.S. running down the street about ten minutes after having seen her speaking with Mr.
Gary on the sidewalk. The women approached B.S., and they could see that she was crying and
“hysterical,” and she told them that “she just almost got raped.” After calling for police
assistance, the women took B.S. home.
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{¶10} Officer McConnell testified that he was dispatched to B.S.’s home on the date in
question in response to a reported rape. When he arrived, he spoke with B.S., who was
“sobbing,” “shaking,” and appeared to be “traumatized.” It became clear to him that B.S. was
developmentally impaired in some way, and it was difficult for him to put together a coherent,
chronological description of the incident based upon their discussion. However, B.S. was able to
lead the officer to the green shed next to where she alleged that she was attacked. An opened
condom package, a condom, and an unopened condom package were immediately apparent to
the officer on the grass next to the shed. These items were not dirty and appeared to have “just
been dropped there.” B.S. told the officer several times that her vaginal area was hurting, and
the officer’s on-call detective recommended an examination. The officer transported her to the
hospital.
{¶11} When the officer later received a report that the man who was involved in the
incident was located at a gas station, the officer went there and spoke with Mr. Gary. Mr. Gary
agreed to come to the police station, where the officer interviewed him. A recording of the
interview was entered into evidence by the State, as was a short letter of apology that the officer
requested Mr. Gary write to B.S. In the interview, Mr. Gary maintained that he at no time
touched her, but admitted they had spoken regarding her age and sexual history. He also
admitted that when retrieving a condom from his pocket to show her, his pants may have come
down somewhat, exposing his penis. At the end of the interview, Officer McConnell placed Mr.
Gary under arrest.
{¶12} Mr. Gary’s apology letter states, “I am apol[o]gizing to you because I have
behavior problems in the past and you weren’t giving me an issue and it never cross my mind to
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harm you in any kind of way hopefully you can forgive me and live a better life than I have
chose.”
{¶13} Christine Hawkins, a sexual assault nurse examiner for Wooster Community
Hospital, testified that she was on call when B.S. arrived at the hospital. When the nurse spoke
with her, B.S. was tearful and anxious. B.S. told her that her attacker had covered her mouth
when she tried to scream, and “[h]is hand went inside[.]” The nurse asked B.S. if this was “with
his privates,” and she replied that “he almost did.” B.S. told her that “it hurt inside,” and when
the nurse asked where, B.S. pointed to her vaginal opening on a diagram. The nurse explained
that during her examination, she witnessed no evidence of tissue damage, but in a majority of
cases of sexual assault, there are no physical signs of trauma or tissue damage. B.S. also
reported to the nurse that her attacker had licked her face, and Ms. Hawkins collected a swab
sample from her cheek and completed a sexual assault kit.
{¶14} On cross-examination, Ms. Hawkins confirmed that she had not taken swab
samples from B.S.’s breasts, but, if B.S. had told her that her attacker had licked her breasts, she
would have done so. Ms. Hawkins testified that she examined B.S. approximately two hours
after the alleged attack, and depending upon several other factors, state protocol advises to
collect swab samples for saliva within 96 hours. The nurse testified that after she finished
collecting samples, she contacted law enforcement.
{¶15} Officer McConnell testified that he was in contact with medical personnel who
informed him that B.S. had alleged that Mr. Gary had digitally penetrated her and that a sexual
assault kit had been completed. The officer returned to the jail to speak with Mr. Gary to inquire
if he would give his consent for a DNA sample. He agreed, and the officer swabbed both of his
hands and obtained a DNA sample from Mr. Gary’s inner cheek. However, the officer explained
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that, because of the time delay between the incident and the interfering factor of the booking
process, he believed that any trace DNA that may have existed on Mr. Gary’s hands may have
been gone. On cross-examination Officer McConnell confirmed that the booking officers had
reported using very little water during the fingerprinting, which is performed with a digital scan
and not with an ink pad.
{¶16} The parties submitted as joint exhibits the reports of the Bureau of Criminal
Identification. These reports indicate that no amylase or semen were located on the skin swab
samples taken B.S.’s thigh or on the samples taken from her underwear. Further, Mr. Gray’s
DNA was not found in swabs samples taken from B.S.’s underwear or from the skin swab
sample from her cheek. Lastly, B.S.’s DNA was not found in the swab samples taken from Mr.
Gary’s hands.
{¶17} In his merit brief, Mr. Gary argues that the rape conviction was against the
manifest weight of the evidence because (1) there existed no physical evidence of penetration,
(2) no DNA testing was performed on the opened condom, (3) B.S. did not testify consistently as
to digital penetration, (4) B.S. testified as to apparent initial consent, and (5) the verdicts of
guilty of rape and not guilty of sexual battery were inconsistent.
{¶18} Although B.S.’s testimony was at times unclear or inconsistent with the accounts
of the incident when compared to the accounts that other witnesses had recalled her previously
providing, she clearly testified that Mr. Gary “started pushing” her upon reaching the green
garage, that she was scared, and that he digitally penetrated her. “The jury is free to believe all,
part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist. No. 04CA008423,
2004-Ohio-7184, ¶ 35, citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993). This is
because the jury “is best able to view witnesses and observe their demeanor, gestures and voice
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inflections, and use these observations in weighing the credibility of the proffered testimony.”
State v. Cook, 9th Dist. No. 21185, 2003-Ohio-727, ¶ 30, quoting Giurbino v. Giurbino, 89 Ohio
App.3d 646, 659 (8th Dist.1993). We cannot say the jury’s resolution of the inconsistencies was
unreasonable. See State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, ¶ 18 (“A conviction is
not against the manifest weight because the [trier of fact] chose to credit the State’s version of
events.”). Further, the jury “has the right to place considerable weight on the testimony of the
victim,” and “a rape victim’s testimony need not be corroborated by physical evidence in order
to sustain a conviction.” State v. Felder, 9th Dist. No. 91CA005230, 1992 WL 181016, *1 (July
29, 1992); State v. Arias, Case No. 04CA008428, 2004-Ohio-4443, ¶ 32, citing State v. Battle,
9th Dist. No. 15869, 1993 WL 303253, *10 (Aug. 11, 1993), citing State v. Gingell, 7 Ohio
App.3d 364, 365 (1st Dist.1982).
{¶19} While Mr. Gary elected not to testify at trial, the State played a nearly two-hour
video recording of the interview at the police station. While he steadfastly denied touching B.S.
during their encounter despite intense questioning by the officer, the interview is filled with
statements which the jury could have found to be evasive, self-serving, grandiose, narcissistic
and incredible.
{¶20} After reviewing the entire record, weighing the inferences, and examining the
credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest
miscarriage of justice in finding Mr. Gary guilty of rape.
{¶21} As part of his manifest weight assignment of error, Mr. Gary argues that the
verdicts of not guilty on the sexual battery count and guilty on the rape count were inconsistent.
However, an appellant’s “assignment of error provides a roadmap for our review and, as such,
directs our analysis of the trial court’s judgment.” See State v. Brown, 9th Dist. No. 23637,
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2008-Ohio-2670, ¶ 24, citing Hamlin-Scanlon v. Taylor, 9th Dist. No. 23773, 2008-Ohio-411,
and App.R. 16. Therefore, as Mr. Gary has not separately assigned as error his argument as to
inconsistent verdicts, we decline to address it here. See App.R. 12(A)(2), 16(A). Accordingly,
Mr. Gary’s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT
GRANTING [MR.] GARY’S MOTION FOR A MISTRIAL.
{¶22} In his first assignment of error, Mr. Gary argues that the trial court erred in not
granting his motion for a mistrial. We disagree.
{¶23} “Mistrials need be declared only when the ends of justice so require and a fair
trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The essential
inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely
affected.” State v. Wooden, 9th Dist. No. 21138, 2003-Ohio-1917, ¶ 33, quoting Wadsworth v.
Damberger, 9th Dist. No. 3024-M, 2000 WL 1226620, *2 (Aug. 30, 2000). “Great deference is
afforded to a trial court’s decision regarding a motion for mistrial and the court’s ruling will be
reversed only upon the showing of an abuse of discretion.” State v. McKinney, 9th Dist. No.
24430, 2009-Ohio-2225, ¶ 20, citing State v. Stewart, 111 Ohio App.3d 525, 533 (9th Dist.1996).
{¶24} Here, just prior to trial, Mr. Gary moved to exclude evidence of his prior
conviction for importuning, and the trial court granted the motion conditioned on Mr. Gary not
testifying. Although Mr. Gary did not testify, during its instructions to the jury, the trial court
referenced the prior conviction:
THE COURT: * * * Defendant does not testify: it is not necessary that the
Defendant take the witness stand in his own defense. He has a constitutional right
not to testify. The fact that he did testify must not be considered for any purpose.
[PROSECUTOR]: Your Honor, I believe –
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THE COURT: Since the Defendant did not –
[PROSECUTOR]: Oh, okay, never mind.
THE COURT: – testify I’m not going to read you the other – it’s not relevant to
this particular case. Use of a prior conviction, credibility –
[PROSECUTOR]: Um, Your Honor –
THE COURT: Also that would only apply if a Defendant had testified in this case
and that again does not apply in this particular case. Expert witnesses:* * *.”
{¶25} After the court finished reading the jury instructions, a discussion was held out of
the presence of the jury, during which the defense moved for a mistrial based upon the court
commencing recital of instructions pertaining to Mr. Gary’s prior conviction and based upon the
full display of these instructions to the jury on a large television screen. After the trial court sent
the jury back to deliberate, defense counsel again moved for a mistrial.
{¶26} The trial court clarified for the record what had transpired during the instructions:
THE COURT: All right, as I don’t really know what the jury saw or didn’t see
and certainly what they’ve received in writing does not contain these two
paragraphs that indicate that the Defendant – in fact, I’ll read for the Record what
the two paragraphs say that were not provided to the jury in the written
instructions. For the Record it says [“]Defendant testifies: the testimony of the
Defendant is to be weighed by the same rules that apply to other witnesses. Use
of prior conviction, credibility: evidence was received that the Defendant was
convicted of importuning. That evidence was received only for a limited purpose.
It was not received and you may not consider it to prove the character of the
Defendant in order to show that he acted in accordance with that character. If you
find that the Defendant was convicted of importuning you must consider that
evidence only for the purpose of testing the Defendant’s credibility and the weight
to be given to Defendant’s testimony. It cannot be considered for any other
purpose.[”] Those two paragraphs were included in the original jury instruction.
As I indicated they were not provided to the jury in their written instructions and
they were not read to the jury. They were projected on a television screen
momentarily. I don’t know how much they saw or didn’t see. I can’t speak for
the jury. I think I am going to give them a cautionary instruction that if they did
see anything in regard to the Defendant testifying they should disregard that so
I’m going to bring them back out. The motion for mistrial is overruled and I’ll
give them that instruction.
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{¶27} Thereafter, the court caused the jury to return to the courtroom and provided the
following instruction:
THE COURT: * * * When I was reading the instructions and they were projected
on the screen you heard me start to read to you about if the Defendant does
testify. As I told you at that time that does not apply in this case because he did
not testify. There is no instruction in your jury instruction about when the
Defendant does testify so anything you saw or thought you heard or thought you
saw you can disregard in regard to the Defendant testifying. Because none of that
is relevant, obviously he didn’t testify. There’s nothing that you need to know
about what happens when a Defendant testifies. So your instruction doesn’t
include anything on that, it does include, you know, if the Defendant chooses not
to testify and the weight or consideration you can give to that or lack thereof is
included in your instructions so you can refer to that and that’s the only thing that
applies about the Defendant and his testimony. * * *
{¶28} On appeal, Mr. Gary argues that the trial court erred in not granting his motion for
a mistrial and cites State v. Allen, 29 Ohio St.3d 53 (1987), in support of his argument. In Allen,
the Ohio Supreme Court found that the trial court erred in failing to declare a mistrial when the
existence of the defendant’s prior convictions, which were not elements of the charged offense,
was revealed to the jury. Id. at 54-55. In making this determination, the Court stated:
The existence of a prior offense is such an inflammatory fact that ordinarily it
should not be revealed to the jury unless specifically permitted under statute or
rule. The undeniable effect of such information is to incite the jury to convict
based on past misconduct rather than restrict their attention to the offense at hand.
For this reason, we do not consider the trial court’s admonitions to the jury that
appellee’s prior convictions are immaterial to his guilt of the present charge
sufficient to cure the error. Nor are we persuaded that appellee would have been
convicted absent the disclosure to the jury of appellee’s two prior convictions.
Id. at 55.
{¶29} However, subsequent to Allen, the Court upheld convictions where the witnesses’
immaterial references to the defendants’ prior arrests or offenses were “fleeting” or “brief and
isolated.” See State v. Garner, 74 Ohio St.3d 49, 59 (1995) (trial court did not err in denying
defendant’s motion for mistrial where the testifying officer’s reference to defendant’s prior
arrests “was fleeting and was promptly followed by a curative instruction”); State v. Trimble, 122
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Ohio St.3d 297, 321 (reference to defendant “having a prior conviction” was “a brief and isolated
remark that was followed by a curative instruction.” The court also noted that the remark did not
necessitate a mistrial where there was overwhelming evidence of defendant’s guilt).
{¶30} Although we would not characterize the evidence as to Mr. Gary’s guilt as
“overwhelming,” we would characterize the reference to Mr. Gary’s prior conviction as
“fleeting.” The trial court described for the record that the instructions at issue were on the
screen “momentarily.” Further, the trial court did not read these instructions in full, but rather
referenced “[u]se of [a] prior conviction,” without expounding upon it. Then the court
immediately instructed the jury that the instruction was inapplicable. The instructions at issue
were deleted from the written instructions that were presented to the jurors for their use during
deliberations, and the trial court again instructed the jury that no instructions that they may have
heard or read on the screen pertaining to the defendant testifying were relevant in this case and
should be disregarded.
{¶31} Based upon the record before us, we conclude that the trial court’s reference to a
prior conviction was “fleeting” and, based upon the facts and circumstances of this case, the trial
court did not abuse its discretion in denying the motion for a mistrial. Accordingly, Mr. Gary’s
first assignment of error is overruled.
ASSIGNMENT OF ERROR III
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT INSISTING ON AN UP-
TO-DATE MENTAL HEALTH EVALUATION BEFORE TRIAL; FOR NOT
DEMANDING REDACTION OF THE POLICE INTERVIEW OF MR. GARY;
AND FOR NOT REQUESTING AN INSTRUCTION ON LESSER-
INCLUDED-OFFENSE.
{¶32} In his third assignment of error, Mr. Gary contends that his trial counsel was
ineffective by (1) failing to insist on an updated mental health evaluation prior to trial, (2) not
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requesting a redaction of the police interview of Mr. Gary to remove the officer’s references to
B.S.’s truthfulness, and (3) failing to request a jury instruction that sexual battery is a lesser
included offense of rape. We disagree.
{¶33} This Court must analyze claims of ineffective assistance of counsel under a
standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);
State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1)
deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial [.]” Strickland at 687. A
defendant must demonstrate prejudice by showing that, but for counsel’s errors, there is a
reasonable probability that the outcome of the trial would have been different. Id. at 694. In
applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]” Id. at 689. With this standard in mind,
we will examine separately the respects in which Mr. Gary claims that his trial counsel was
ineffective.
Mental Health Examination
{¶34} Prior to sentencing, Mr. Gary’s trial counsel requested a mental health
examination be performed on Mr. Gary, because trial counsel perceived him to be confused as to
the outcome of the trial. In his memorandum in support of this motion, defense counsel stated:
[Mr. Gary] has always appeared to counsel to have a clear understanding of the
nature of the legal proceedings against him, however, during a telephone call to
counsel’s office on January 13, 2012, [Mr. Gary] stated to counsel’s secretary that
he thought he had won the case and was unclear as to why he was still in jail and
what the sentencing hearing * * * had been scheduled for.
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{¶35} However, Mr. Gary argues that trial counsel was ineffective for failing to request
an updated health examination prior to trial, and contends that the need for such an evaluation
“would have been apparent simply from talking to him.” Despite appellate counsel’s assessment
of the immediate and obvious need for such an evaluation prior to trial, there is nothing that
suggests that trial counsel observed such a need prior to his request. Further, given the strong
presumption that defense counsel’s conduct fell within the wide range of reasonable,
professional assistance and defense counsel’s statement that Mr. Gary had “always appeared to
counsel to have a clear understanding” of the proceedings prior to sentencing, we cannot say that
defense counsel’s deficiency in this respect, if any, was so serious as to “deprive Mr. Gary” of
counsel as guaranteed by the Sixth Amendment. See Strickland at 687.
{¶36} Further, as referenced earlier, the video tape recording of Mr. Gary’s interview by
the police was available to the trial court. It showed Mr. Gary fully engaged in a spirited
dialogue with the officer. Despite the officer’s best efforts to guide Mr. Gary into an admission
of having violated B.S., he limited or denied his involvement, frequently disagreeing with the
premises upon which the officer’s questions were based. The video recorded interview taken
immediately after the reporting of the incident tends to support trial counsel’s observation that
Mr. Gary had a clear understanding of the nature of the proceedings.
{¶37} Accordingly, we cannot say that defense counsel was ineffective for failing to
request a mental health evaluation prior to trial.
Video Interview
{¶38} Mr. Gary further argues that his trial counsel was ineffective for failing to request
redaction of his video interview to remove references made by Officer McConnell in regard to
B.S.’s truthfulness. During the video, the officer repeatedly insists that the victim was not lying
15
and that people with her level of cognition are unable to lie. Mr. Gary contends that the playing
of these portions of the interview prejudiced him because there was little evidence of digital
penetration other than B.S.’s testimony. Thus, Mr. Gary maintains that the jury may have taken
the officer’s statements as supportive of B.S.’s credibility.
{¶39} However, it appears from the record that the defense actually embraced the
playing of the unredacted video recording. Rather than move to redact, much of defense
counsel’s cross-examination drew attention to and focused upon the “techniques” employed by
Officer McConnell during his interview of Mr. Gary. The tactical approach was to demonstrate
to the jury that, despite the use of these techniques, (including the suggestion that B.S. could not
lie) Mr. Gary at all times during the interview denied touching her. Based upon the record, it
appears that defense counsel attempted to utilize the officer’s statements of truthfulness as a trial
tactic. See State v. Clayton, 62 Ohio St.2d 45, 49 (1980) (holding that debatable trial tactics and
strategies do not constitute a denial of effective assistance of counsel.)
{¶40} Accordingly, we cannot say that defense counsel was ineffective for his failure to
request redaction of the officer’s references pertaining to B.S.’s truthfulness from the video of
the interview.
Sexual Battery Instruction
{¶41} Lastly, Mr. Gary argues that trial counsel was ineffective for failing to request the
trial court to instruct the jury that sexual battery is, in the abstract, a lesser included offense of
rape. We note that Mr. Gary has again incorporated in his argument a lengthy discussion
regarding inconsistent verdicts which he had set forth in the body of his brief pertaining to his
manifest weight assignment of error. Mr. Gary has nowhere in his brief raised the issue of
inconsistent verdicts as a separate assignment of error. As Mr. Gary’s assignment of error
16
“provides a roadmap for our review” and “directs our analysis of the trial court’s judgment,” we
will confine our analysis to his argument that his trial counsel was ineffective for failing to
request a jury instruction that sexual battery is abstractly a lesser included offense of rape. See
Brown, 2008-Ohio-2670 at ¶ 24; see also App.R. 16.
{¶42} Mr. Gary essentially argues that trial counsel should have requested the court to
instruct the jury that the elements of a rape include all of the elements of a sexual battery. See
State v. Wilkins, 64 Ohio St.2d 382 (1980), syllabus; see also State v. Ortiz, 185 Ohio App.3d
733, 2010-Ohio-38, ¶ 15-18.
{¶43} However, “[t]rial strategy ‘must be accorded deference and cannot be examined
through the distorting effect of hindsight.’” State v. Owens, 9th Dist. No. 25872, 2012-Ohio-
3667, ¶ 15, quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-4815, ¶ 115. The jury was
instructed as to the definition and the elements of rape and of sexual battery. Mr. Gary has not
indicated that the trial court erred in instructing the jury on the elements of either offense.
Additionally, Mr. Gary has directed us to no authority that would support the premise that trial
counsel should have further requested the instruction that he has proposed. Therefore, Mr. Gary
has failed to demonstrate that trial counsel’s performance was deficient in this regard. See
Strickland at 687.
{¶44} Accordingly, we cannot say that defense counsel was ineffective for failing to
request the trial court to instruct the jury that the elements of rape include all of the elements of a
sexual battery, and his third assignment of error is overruled.
III.
{¶45} Mr. Gary’s assignments of error are overruled. The judgment of the Wayne
County Common Pleas Court is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
CLARKE W. OWENS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
State v. Gary
Combined Opinion