[Cite as In re J.A., 2015-Ohio-4409.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re J.A. Court of Appeals No. L-14-1216
Trial Court No. 14241314
DECISION AND JUDGMENT
Decided: October 23, 2015
*****
Brett A. Klimkowsky and Kyle J. Bristow, for appellant.
Julia R. Bates, Lucas County Prosecuting Attorney, and
Chynna L. Fifer, Assistant Prosecuting Attorney, for appellee.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, Juvenile Division, in which appellant, J.A., was found to be a delinquent child in
violation of R.C. 2907.02, which sets forth the crime of rape. On appeal, appellant sets
forth the following assignment of error:
Appellant suffered ineffective assistance of counsel during
Appellant’s case-in-chief at the trial court due to (1) Appellant’s trial
attorney neglecting to properly communicate with Appellant prior to trial in
order to properly prepare for it, (2) Appellant’s trial attorney failing to
properly introduce evidence at trial to evince that a third-party is likely to
be the culprit of the offense, and (3) Appellant’s trial attorney failing to
properly raise an alibi defense.
{¶ 2} On May 28, 2014, S.P. went to the house of appellant’s mother, A.D., to
pick up three of her six children, who had been staying with A.D. for approximately four
days. On the way home one of the children, three-year-old R.S., began to complain of
pain in her rectal area while she was seated in her car seat. Later, at home, the child
began crying when she tried to use the toilet. R.S. told her mother that appellant, who
was 17 years old at the time, “put his wee-wee in her butt.”
{¶ 3} S.P. took her daughter to the emergency room at Toledo Hospital, where she
was examined by Amber Showman, a trained sexual assault nurse examiner (“SANE”).
R.S. repeated the statement about appellant to Showman, after which Showman examined
her. As part of the examination, Showman swabbed R.S.’s rectal area for evidence to be
used in DNA testing, and took pictures of what appeared to be a rectal tear.
{¶ 4} Toledo Police Detective Rebecca Kincaid referred the case to Randall
Schlievert, M.D., director of the Child Abuse Program at Mercy Hospital, who examined
R.S. During the examination R.S. said that she knew appellant, and that he had “hit her.”
2.
R.S. did not repeat her earlier statements of sexual abuse, and a physical examination
performed by Schlievert revealed that R.S.’s injuries had healed.
{¶ 5} On June 17, 2014, Detective Kincaid interviewed appellant. During the
interview, appellant stated that he may have digitally penetrated R.S.’s rectum with his
finger several months earlier, while he was cleaning her after a toilet accident. When
Kincaid asked appellant for a DNA sample to rule him out as a suspect, he complied.
DNA testing revealed that appellant’s DNA was not on any of the samples collected by
Showman. On June 26, 2014, Kincaid filed a supplemental report in which she stated
that “[t]he suspect admits to digitally penetrating [the victim’s] rectum.”
{¶ 6} On July 1, 2014, two complaints were filed against appellant. The first
complaint, case No. 14241314 01, stated that:
[Appellant] did have sexual conduct with three years old victim
* * *, by putting his finger into her rectum. This was admitted to by the
[appellant] when he was interviewed by Detective Kincaid.
Contrary to and in violation of 2907.02(A)(1)(b) of the Ohio Revised
Code, Rape, a felony of the first degree.
The second complaint, case No. 14241314 02, stated that:
[Appellant] did have sexual conduct with three years old victim
* * *, by putting his penis into her rectum. This was disclosed by the
victim to her mother and medical findings were consistent with the
disclosure.
3.
Contrary to and in violation of 2907.02(A)(1)(b) of the Ohio Revised
Code, Rape, a felony of the first degree.
{¶ 7} On August 6, 2014, a hearing was held before a juvenile court magistrate at
which testimony was presented by S.P., Showman, Schlievert, Kincaid, and A.D. S.P.
testified that she is the mother of six children, and that R.S. is her fifth child. S.P. said
that when she went to A.D.’s home to return a cell phone, she saw R.S. walk out of
appellant’s bedroom. S.P. said that, at the time, appellant was in the bedroom with
another child. S.P. stated that she decided to take all three children home at that point.
On the way home, R.S. complained of pain from sitting in the car seat. S.P. said that she
took R.S. to the hospital after the child began screaming with pain when she tried to use
the toilet at home.
{¶ 8} On cross-examination, S.P. testified that she left her three children with A.D.
for several nights because she had to take her husband to physical therapy. She also
testified that A.D. babysat her children many times in the past and that, usually, R.S. is
happy to go to A.D.’s house. However, the night she picked up the children, R.S. was
“nervous” and “upset.”
{¶ 9} Showman, a registered nurse, testified that she is certified as a SANE
examiner, which involves interviewing alleged victims of sexual abuse and collecting
evidence. Showman stated that she examined R.S. with her mother present. Showman
noted several injuries, one of which was a laceration of the tissue between R.S.’s anus
and her vulva, in an area known as the “fourchette.” Showman also said that R.S. would
4.
not allow her to clean off stool from her rectal area, and that she was not able to perform
a complete internal examination because the child was in too much pain. Showman said
the injury appeared to be caused by “blunt force trauma.” On redirect, Showman testified
that R.S.’s injuries were not consistent with a spanking.
{¶ 10} Schlievert testified that he is board certified in child abuse and neglect, and
is recognized in Michigan as an expert in child abuse. Schlievert said that he examined
R.S. at Kincaid’s request and that the exam, which was performed on June 18, 2014, was
“normal.” On cross-examination Schlievert said that R.S. “did not disclose any sexual
conduct perpetrated upon her.” On redirect, he clarified that such non-disclosure is not
abnormal in a young child.
{¶ 11} Kincaid testified that she is a Toledo Police Detective assigned to the
Special Victims Unit, which investigates child sex abuse crimes. Kincaid stated that she
interviewed appellant and R.S., and spoke to S.P. as part of her investigation. On cross-
examination, Kincaid stated that appellant admitted that, four months earlier, he may
have accidentally inserted his finger into R.S.’s rectum while he was cleaning her.
Kincaid also stated that appellant agreed to a DNA test to rule him out as a suspect.
However, appellant was not ruled out as a suspect, even though his DNA was not found
on R.S.
{¶ 12} On redirect, Kincaid testified that DNA is not always present on a rape
victim, even when there is a physical injury present. She also testified that appellant
denied inserting his penis into R.S.’s rectum. She said that she did not hear R.S. accuse
5.
appellant of rape, and it is possible that R.S. said appellant “hurt her” in response to
Kincaid asking if appellant ever spanked R.S.
{¶ 13} After Kincaid’s testimony, the state rested its case. Appellant’s attorney
made a motion for acquittal pursuant to Crim.R. 23, which the trial court denied. The
defense then called appellant’s mother, A.D., to testify on appellant’s behalf.
{¶ 14} A.D. testified that five of her six children, including appellant, live in her
home. She also testified that, although appellant has his own bedroom in her home, the
doorways are covered with blankets because none of the bedrooms have actual doors.
A.D. stated that appellant spends “a lot” of his time at a friend’s house after school each
day, and her nephew, E.D., also stays at her home.
{¶ 15} A.D. said that S.P. is her best friend, and she babysits S.P.’s children often.
She also said that, although S.P. originally said that R.S. and her siblings would stay one
night at A.D.’s house, they actually stayed four nights. A.D. testified that she was at a
neighbor’s house when S.P. came to pick up the children, and that appellant, R.S. and one
other child were playing video games in appellant’s room when S.P. arrived. She said
that R.S. was never alone with appellant, although appellant would occasionally clean up
messes made by the children and sometimes changed the smaller children’s diapers. She
denied ever seeing appellant abuse R.S.
{¶ 16} On cross-examination, A.D. stated that she never left any of her own
children alone with other children because of her nephew, E.D. However, she also stated
that E.D. was not in the home when S.P. came to pick up her children.
6.
{¶ 17} After A.D.’s testimony was concluded, the defense rested, and the state
presented rebuttal testimony by S.P. S.P. testified that she went to A.D.’s house on
May 28, 2014, to drop off A.D.’s cell phone, which had been left in her car. S.P. said
that appellant, another one of her children and R.S. were in appellant’s room when she
arrived. None of A.D.’s children were present except for appellant. At that point, the
state rested and closing arguments were presented to the trial court. Appellant did not
make a statement to the trial court on his own behalf.
{¶ 18} After reviewing all of the evidence, the magistrate found that the state
proved “beyond a reasonable doubt that [appellant] is delinquent of Count 2, rape.”
Count 1 of the complaint was dismissed. The case was continued for disposition, and
appellant was referred to probation and to the sex offender treatment program (“SOT”)
for assessments and recommendations.
{¶ 19} On September 11, 2014, a disposition hearing was held at which the
prosecutor expressed disagreement with Probation Officer Julie Henry’s recommendation
that appellant be placed in a group home. The prosecutor further stated that, due to the
difference in age and size of appellant and his victim, and also the seriousness of the
crime and the danger to the public, the state would recommend commitment to the
Department of Youth Services for one to three years, up to age 21. Appellant’s attorney
asked the magistrate to place appellant in a group home, so that he might be rehabilitated
and “hopefully reintegrate with society and not reoffend * * *.”
7.
{¶ 20} When questioned, appellant’s mother told the magistrate that appellant is
“an amazing kid.” She further stated that appellant was in 11th grade where he has an
academic “IEP,” and he follows rules at home. Appellant’s father stated that appellant is
“a good kid” who “stays out of trouble.” The victim’s mother then stated that, since the
attack, R.S. is afraid of “monsters” and must be re-trained to use the toilet. She also
stated that “my daughter is very awesome, which might have been messed up now, and
that’s all I can say.”
{¶ 21} After the above statements were made, the magistrate stated that “this is a
very, very serious offense,” and noted that, although appellant was 17 years old, he
lacked the “typical maturity of a 17 year old.” The magistrate further stated that sex
offender treatment is not available through DYS, and noted that appellant had already
been detained for 70 days leading up to the trial. The magistrate found that, while the
incident in question was “no accident,” as appellant claimed, nevertheless commitment to
DYS would not give appellant an opportunity for rehabilitation. Accordingly, the
magistrate committed appellant to DYS for three months, but stayed that commitment
and ordered him placed in a group home. Appellant was ordered to attend school, and
participate in an SOT program. Appellant was also placed on probation, classified as a
Tier I sex offender, and ordered to have no further contact with R.S. The trial court
conducted an independent review of the magistrate’s decision and adopted it on
October 10, 2014. A timely notice of appeal was filed in this court on October 14, 2014.
8.
{¶ 22} In his sole assignment of error, appellant argues that he received ineffective
assistance of trial counsel because counsel failed to communicate with appellant and his
mother prior to trial. Appellant further argues that, if counsel had communicated with
him, counsel would have been able to present an alibi defense and to argue that R.S. may
have been raped by appellant’s cousin, E.D., who is a convicted sex offender.
{¶ 23} Attached to appellant’s brief is his own affidavit and that of A.D., in which
they state that appellant and A.D. met with trial counsel “only once prior to the trial” after
which counsel refused to return A.D.’s phone calls or to come to prison to meet with
appellant. Also attached to appellant’s brief is a copy of E.D.’s arrest record, which
shows that E.D. was convicted of unlawful sexual conduct with a minor in January 2014.
{¶ 24} We note initially that a claim of ineffective assistance of counsel that
requires consideration of evidence that is outside the trial court’s record “is not
appropriately considered on a direct appeal.” State v. Hartman, 93 Ohio St.3d 274, 299,
754 N.E.2d 1150 (2000), citing State v. Madrigal, 87 Ohio St.3d 378, 390-391, 721
N.E.2d 52 (2000). Accordingly, to the extent that they were not made a part of the trial
court’s record, we cannot consider the affidavits and other documents that are attached to
appellant’s brief.
{¶ 25} As to appellant’s remaining argument, in order to prevail on a claim of
ineffective assistance of counsel, a defendant must prove two elements: “First, the
defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
9.
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof of prejudice requires a
showing “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694; State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶ 26} In reviewing trial counsel’s actions under the above standard, we must keep
in mind that “trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. * * * Hindsight is not permitted to distort
the assessment of what was reasonable in light of counsel’s perspective at the time, and a
debatable decision concerning trial strategy cannot form the basis of a finding of
ineffective assistance of counsel.” State v. Conley, 2d Dist. Montgomery No. 26359,
2015-Ohio-2553, ¶ 55.
{¶ 27} As to whether counsel failed to communicate with appellant and properly
prepare for trial, it is undisputed that trial counsel met privately with appellant and his
mother at least once. The record also shows that appellant, his parents and his attorney
were present at pretrial conferences held on July 18 and 24, 2014. As to whether counsel
failed to investigate the possibility that a third party, E.D., could have been blamed for
the offense, the trial transcript contains A.D.’s testimony that E.D. lived in her home, and
even shared a room with appellant at the time that the instant offense took place. As
stated above, evidence of E.D.’s prior conviction for sexual abuse is not in the trial
10.
court’s record and therefore cannot be considered by this court on appeal. As to whether
counsel failed to establish that appellant had an alibi defense, A.D. testified that appellant
frequently spends large amounts of time at a friend’s house. However, A.D. also testified
that appellant was home on May 28, 2014, and that he played video games with R.S. in
his room before her mother picked her up.
{¶ 28} On consideration of the foregoing, this court finds that appellant has not
established that counsel’s performance was due to anything other than trial strategy, or
that it was so deficient and/or unprofessional that, but for counsel’s alleged errors, the
result of his trial would have been different. Accordingly, we cannot say that appellant
received ineffective assistance of trial counsel. Appellant’s sole assignment of error is
not well-taken
{¶ 29} The judgment of the Lucas County Court of Common Pleas, Juvenile
Division, is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
11.
In re J.A.
C.A. No. L-14-1216
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
12.
In re J.A.
Combined Opinion