State v. Williams

[Cite as State v. Williams, 2017-Ohio-5598.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 16AP-540
v. : (C.P.C. No. 15CR-4696)

Jerry D. Williams, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on June 29, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued: Michael P.
Walton.

On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam,
and Erik P. Henry, for appellant. Argued: Kort Gatterdam.

APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Jerry D. Williams, appeals from an order of the
Franklin County Court of Common Pleas sentencing him to a total of nine years
incarceration, pursuant to a bench trial verdict, finding appellant guilty of one count of
rape with a firearm specification, one count of gross sexual imposition with a firearm
specification, one count of kidnapping with a firearm specification, and one count of
having a weapon under disability. For the following reasons, we affirm the convictions
and sentence.
I. Facts and Procedural History
{¶ 2} Appellant was indicted on two counts of rape with firearm specifications,
one count of gross sexual imposition with a firearm specification, one count of kidnapping
with a firearm specification, and one count of having a weapon under disability. The
No. 16AP-540 2

indictment alleged that on May 19, 2015, appellant compelled the victim, J.H., by force to
submit to vaginal intercourse, digital vaginal penetration, and sexual contact, and that he
restrained J.H.'s liberty for the purpose of committing rape and gross sexual imposition.
The indictment further alleged that appellant had a firearm on or about his person or
under his control while committing these offenses and displayed, brandished, indicated
possession of, or used the firearm to facilitate the offenses. The indictment asserted that
appellant was prohibited from possessing or using a firearm because he previously had
been adjudicated a delinquent child for having committed the offense of robbery.
Appellant waived his right to a jury trial and the charges were tried before the court.
{¶ 3} J.H. testified at trial that she met appellant, whom she knew as "J.D.,"
shortly before May 19, 2015, and had exchanged text messages with him. A subsequent
police report indicated that some of appellant's text messages expressed a desire to have
sex with J.H. J.H. testified appellant had asked her age and told her his age. J.H. was 17
years old at the time and told appellant he was too old for her to be romantically
interested, but they could be friends. J.H. arranged to meet appellant on May 19, 2015 at
the home of appellant's sister-in-law, which was located behind J.H.'s house, to watch a
basketball game. J.H. testified she and appellant smoked marijuana and watched the
basketball game in the living room. J.H. indicated there were other people in the house at
the time, but they were in different rooms. After the basketball game ended, appellant
invited J.H. to stay and watch a movie. They went to the basement to select a movie, in a
room containing a bed and a television. J.H. testified that while they were picking out a
movie to watch, appellant touched her on the thigh; she declined appellant's advances
multiple times.
{¶ 4} J.H. testified appellant then went to an area near the bed and retrieved a
gun. J.H. stated that when appellant leaned over to get the gun, she saw that a second
gun was tucked into the front of his pants. J.H. testified one of the guns was silver and
black and the other was all black, and she believed the guns were revolvers. Appellant
forced J.H. to remove her clothes and told her she was going to have his son. J.H.
testified that appellant climbed on top of her and forced his penis into her vagina; he had
intercourse with J.H. until he ejaculated. While this was occurring, appellant pointed the
gun at J.H.'s head. J.H. testified that when appellant was finished he kept touching her
No. 16AP-540 3

and talking, as though he was trying to explain himself. J.H. put her clothes back on and
rushed out of the house.
{¶ 5} J.H. testified that she ran home and showered because she felt disgusted
and wanted the night to be over. J.H.'s mother was home at the time, but J.H. did not
want to talk to her about the incident. J.H. told some friends who were waiting at her
house what had occurred, and those friends then told J.H.'s mother. J.H. testified that
her mother then called police. J.H. indicated that the officer who responded on May 19,
2015 was rude and placed her in the backseat of the cruiser to conduct an interview. J.H.
testified that she was not permitted to leave the cruiser. She stated she was very
uncomfortable being in the police cruiser and did not want to talk to the officer. J.H.
testified that she lied to the officer and told him nothing happened because she was
panicking and wanted to be left alone. J.H. testified that her mother called police again
the following day and the officer who responded took her to the hospital, where she was
examined. J.H. told her story to police officers and a nurse at the hospital. J.H. identified
appellant in the courtroom as the man who raped her. On cross-examination, J.H.
admitted that when the first responding officer was questioning her in the back of his
cruiser, she told him that she felt pressured by appellant but that the sex was consensual.
She further testified on cross-examination that she could not recall telling a police
detective that appellant retrieved one gun from under the bed and the other from under a
pillow.
{¶ 6} J.H.'s mother, V.H., testified at trial that J.H. was angry when she returned
home on May 19, 2015. V.H. asked what was wrong, but J.H. did not respond and
immediately went upstairs and showered. One of J.H.'s friends, who had been waiting for
J.H. in her room, told V.H. that J.H. had been raped. After hearing this, V.H. called
police. V.H. testified that the responding officer placed J.H. in the back of his cruiser to
speak with her, "treating her like she's a prisoner." (Tr. at 17.) V.H. stated that the first
officer left without transporting J.H. to the hospital or taking further action. V.H. called
police again and complained that the first officer did not respond appropriately. V.H.
stated that the next day a detective arrived with two police officers, and that J.H. spoke
with a female officer. Officers collected J.H.'s clothing from the prior day and transported
her to the hospital.
No. 16AP-540 4

{¶ 7} The first responding officer was Columbus Division of Police Officer James
Braskie. The dash camera recording of Officer Braskie's interview of J.H. in his police
cruiser was played for the court. Neither J.H. nor Officer Braskie were visible in the
video, but their statements were audible. During the interview, Officer Braskie asked J.H.
multiple times whether she felt she was raped, and J.H. answered no. However, J.H. also
answered no when asked whether she wanted to have sex with appellant. Although J.H.
was not visible in the video, she clearly sounded upset, indicating that she did not want to
talk about the incident. At one point, Officer Braskie left J.H. alone in the cruiser and
went to call a detective; during that portion of the recording, J.H. could be heard
screaming for her mother and asking to be let out of the cruiser. After listening to the
recording of the interview at trial, J.H. confirmed that she answered no when Officer
Braskie asked if she felt like she had been raped, but also answered no when asked if she
wanted to have sex with appellant.
{¶ 8} When V.H. called police on May 20, 2015, Columbus Division of Police
Officer Heidi Dripps responded to J.H.'s home. Officer Dripps interviewed J.H. outside
the presence of her mother. During the interview, J.H. indicated to Officer Dripps that
she had a non-consensual sexual encounter with appellant. After interviewing J.H.,
Officer Dripps contacted the sexual abuse squad and spoke with a detective who advised
her to transport J.H. to the hospital. Columbus Division of Police Officer Michael
Cameron ("Detective Cameron")1 testified that he was a detective in the sexual assault unit
in May 2015, and interviewed J.H. after she was transported to the hospital on May 20,
2015. Detective Cameron testified that, in his initial interview with J.H., she told him she
had a negative experience with another officer the prior evening. J.H. did not tell
Detective Cameron that she denied having been raped when interviewed by Officer
Braskie, but rather that Officer Braskie came to her home and refused to help her.
Detective Cameron contacted Officer Braskie and then interviewed J.H. a second time; as
part of that second interview, he confronted J.H. about her prior statement to Officer
Braskie. Detective Cameron testified that he was satisfied with J.H.'s explanation of her
prior statement to Officer Braskie. Detective Cameron further testified that testing of the
sexual assault examination kit completed at the hospital identified semen and DNA,

1 At the time of trial, Cameron was assigned to the mounted unit of the Columbus Division of Police, but at

the time of the investigation of this incident, he was a detective in the sexual assault unit. Therefore, we will
refer to Cameron as "Detective Cameron" for purposes of this decision.
No. 16AP-540 5

which was put into the offender database. Detective Cameron stated that another officer
showed J.H. a photo lineup containing appellant's photo. J.H. identified appellant as the
man who raped her and had an emotional reaction to seeing appellant's photo.
{¶ 9} During the first interview with Detective Cameron, J.H. stated that
appellant was seated on the bed and reached down beside the bed to retrieve a black
handgun from between the mattress and box springs. She told Detective Cameron that
appellant placed this gun on his lap, and then pulled another black handgun from under
one of the pillows on the bed. J.H. told Detective Cameron that appellant pulled the slide
on the second gun, as if to chamber a live round, and pointed it at her. Appellant then
ordered J.H. to stand and remove her clothes. He kissed her neck and then pushed her
onto the bed. J.H. told Detective Cameron that appellant held the gun to her head while
kissing her neck and massaging her breast. Detective Cameron testified that J.H. did not
mention appellant having a gun in the waist of his pants.
{¶ 10} The sexual assault nurse examiner who examined J.H. at the hospital
testified she identified tenderness on J.H.'s external genitalia and bruising on her cervix,
which were consistent with trauma. The nurse examiner testified that the location of
these injuries was consistent with an assailant being on top of J.H. On cross-examination,
the nurse examiner testified that these types of injuries could also occur during
consensual sex. The nurse examiner's report, which contained the description of the
events that J.H. gave to the nurse, was introduced into evidence. That report indicated
J.H. told the nurse examiner that she and appellant were watching a movie when
appellant grabbed her foot. Appellant then reached between the wall and the table and
retrieved a gun; he then retrieved a second gun from under the mattress. Appellant
pointed the gun at J.H. and told her to remove her pants. When she refused, he cocked
the gun and told her to remove her clothes or he would shoot her. J.H. told the nurse
examiner that appellant put the gun to her back and kissed her neck. Appellant pushed
her onto the bed, then climbed on top of her and inserted his penis into her vagina.
Appellant indicated that he had ejaculated. J.H. told the nurse examiner she started
crying and then put her clothes on and left.
{¶ 11} Plaintiff-appellee, State of Ohio, and appellant stipulated that forensic
scientists from the Ohio Bureau of Criminal Investigation identified the presence of
semen on vaginal samples collected from J.H. at the hospital, that a DNA profile was
No. 16AP-540 6

extracted from the semen and compared with a known sample from appellant, and it was
concluded that appellant's DNA was included in the mixture of DNA present on the
vaginal sample. The state and appellant also stipulated that appellant had previously
been found to be a delinquent child, having committed the offense of robbery.
{¶ 12} After the state completed its presentation, appellant's trial counsel moved
for acquittal under Crim.R. 29. The trial court granted the motion with respect to the
second count of the indictment, which asserted rape through digital penetration, finding
there was insufficient evidence on that charge. The trial court denied the motion as to all
other charges. Appellant's trial counsel introduced into evidence certain portions of the
police reports related to the incident, but did not call any witnesses. The trial court found
appellant guilty of rape through vaginal intercourse, gross sexual imposition, kidnapping,
and having a weapon under disability. The trial court also found appellant guilty of the
firearm specifications associated with the rape, gross sexual imposition, and kidnapping
charges. The court concluded the kidnapping charge merged with the rape charge for
purposes of sentencing.
{¶ 13} The trial court sentenced appellant to 6 years of mandatory imprisonment
on the rape conviction and 3 years of mandatory imprisonment on the firearm
specification associated with that charge. The court further sentenced appellant to 17
months imprisonment on the gross sexual imposition conviction and 3 years
imprisonment on the weapon under disability conviction. The court provided that the
terms for the rape and weapon under disability convictions were to be served
consecutively, and concurrently with the term for the gross sexual imposition conviction,
for a total sentence of 9 years imprisonment. The court informed appellant he was subject
to a mandatory period of 5 years of post-release control and notified him of his sexual
offender classification. The court found that appellant was entitled to 20 days of jail-time
credit.
II. Assignments of Error
{¶ 14} Appellant appeals and assigns the following four assignments of error for
our review:
[I.] THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN IT
ENTERED A JUDGMENT OF CONVICTION BASED ON
INSUFFICIENT EVIDENCE AND AGAINST THE
No. 16AP-540 7

MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF APPELLANT'S RIGHTS UNDER THE UNITED STATES
AND OHIO CONSTITUTIONS.

[II.] THE TRIAL COURT ERRED, CONTRARY TO THE
DUE PROCESS CLAUSES OF THE OHIO AND UNITED
STATES CONSTITUTIONS, AND CONTRARY TO STATE V.
HAND, SLIP OPINION NO. 2016-OHIO-5504, WHEN IT
FOUND APPELLANT GUILTY AND SENTENCED HIM
FOR A WEAPON UNDER DISABILITY OFFENSE WHICH
WAS BASED UPON A PRIOR JUVENILE ADJUDICATION.

[III.] THE TRIAL COURT ERRED IN CALCULATING
APPELLANT'S JAIL-TIME CREDIT CONTRARY TO R.C.
2967.191, R.C. 2929.41, AND APPELLANT'S
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION.

[IV.] APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF
APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF
THE OHIO CONSTITUTION.

III. Discussion
A. Weight and sufficiency of the evidence
{¶ 15} In his first assignment of error, appellant asserts there was insufficient
evidence to support his convictions and that the trial court's judgment was against the
manifest weight of the evidence. Although appellant purports to challenge both the
sufficiency and the weight of the evidence, the majority of his argument centers on the
weight of the evidence.
{¶ 16} "Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate
court must determine "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. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. Where the evidence, "if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction.
No. 16AP-540 8

Id. "The testimony of a single witness, if believed by the finder of fact, is sufficient to
support a criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118,
¶ 18. See also State v. Conkel, 10th Dist. No. 08AP-845, 2009-Ohio-2852, ¶ 14, citing
State v. Ruhlman, 12th Dist. No. CA2005-05-125, 2006-Ohio-2137, ¶ 26 (for the
proposition that the testimony of a victim as to the elements of sexual assault, if believed,
is sufficient to establish the elements of the offense).
{¶ 17} The first count of the indictment charged appellant with rape, in violation of
R.C. 2907.02, asserting that appellant engaged in vaginal intercourse with J.H., and that
he purposely compelled her to submit by force or threat of force. Force is defined as "any
violence, compulsion, or constraint physically exerted by any means upon or against a
person or thing." R.C. 2901.01(A)(1). A person acts purposely when it is his "specific
intention to cause a certain result." R.C. 2901.22(A). J.H. testified that appellant climbed
on top of her and forced his penis into her vagina. She further testified that appellant held
a gun to her head during the rape. Viewed in the light most favorable to the prosecution,
this evidence, if believed by the trial court, was sufficient to establish the elements of rape
as charged in the first count of the indictment. See State v. Taylor, 10th Dist. No. 14AP-
254, 2015-Ohio-2490, ¶ 21-25.
{¶ 18} The third count of the indictment charged appellant with gross sexual
imposition, in violation of R.C. 2907.05, asserting that appellant had sexual contact with
J.H., and that he purposely compelled her to submit by force or threat of force. For
purposes of R.C. 2907.05, "sexual contact" means "any touching of an erogenous zone of
another, including * * * if the person is female, a breast, for the purpose of sexually
arousing or gratifying either person." R.C. 2907.01(B). Detective Cameron testified that
J.H. stated appellant kissed her on the neck and touched her breast while holding a gun to
her head. This occurred immediately before appellant raped J.H. Similarly, the sexual
assault nurse examiner's report indicated that J.H. stated appellant held the gun against
her back and kissed her neck. Although J.H. did not mention appellant kissing her neck
or touching her breast during her trial testimony, Detective Cameron's report, containing
J.H.'s description of this contact, and the nurse examiner's report were both admitted into
evidence. Viewed in the light most favorable to the prosecution, this evidence, if believed
by the trial court, was sufficient to establish the elements of gross sexual imposition. See
State v. Brown, 10th Dist. No. 14AP-101, 2014-Ohio-5043, ¶ 9-13.
No. 16AP-540 9

{¶ 19} The fourth count of the indictment charged appellant with kidnapping in
violation of R.C. 2905.01, asserting that, by force, threat, or deception, appellant removed
J.H. from the place she was found or restrained her liberty for the purpose of committing
rape or gross sexual imposition. Restraining an individual's liberty means limiting or
restraining their freedom of movement. The restraint need not be for any specific
duration or in any specific manner. Taylor at ¶ 18, citing 2 Ohio Jury Instructions, CR
Section 505.01(A) (Rev. Jan. 20, 2007). J.H. testified at trial that appellant began to
touch her thigh and she rejected his advances. Appellant then obtained one of the guns
from near the bed and J.H. saw a second gun in appellant's pants. Appellant ordered J.H.
to remove her clothes at gunpoint, and he was on top of her with the gun pointed at her
head during the rape. She stated, "I was fighting, but then I couldn't fight no more
because I was scared of the gun." (Tr. at 47.) J.H.'s testimony established that appellant
restrained her liberty for the purpose of committing rape. See State v. Logan, 60 Ohio
St.2d 126, 130 (1979) ("[I]mplicit within every forcible rape (R.C. 2907.02[A][1]) is a
kidnapping."). Viewed in the light most favorable to the prosecution, this evidence, if
believed by the trial court, was sufficient to establish the elements of kidnapping. See
Taylor at ¶ 18-20.
{¶ 20} The rape, gross sexual imposition, and kidnapping charges against
appellant each contained firearm specifications, asserting that appellant had a firearm on
or about his person or under his control while committing the offenses and displayed,
brandished, indicated possession of, or used the firearm to facilitate the offense. For
purposes of the firearm specifications, a firearm is defined as "any deadly weapon capable
of expelling or propelling one or more projectiles by the action of an explosive or
combustible propellant" and includes "an unloaded firearm, and any firearm that is
inoperable but that can readily be rendered operable." R.C. 2923.11(B)(1). In the present
case, police did not recover any firearms, and appellant argues the state failed to establish
the presence and operability of a firearm.
{¶ 21} The statute provides that when determining whether a firearm is operable,
"the trier of fact may rely on circumstantial evidence, including, but not limited to, the
representations and actions of the individual exercising control over the firearm." R.C.
2923.11(B)(2). "It is not necessary for the state to produce the gun or offer direct,
empirical evidence that the gun is operable." State v. Whiteside, 10th Dist. No. 07AP-951,
No. 16AP-540 10

2008-Ohio-3951, ¶ 17. "Instead, proof of operability may be established through the
testimony of lay witnesses who were in a position to observe the weapon and the
surrounding circumstances." Id. This court has previously held that "[c]ircumstantial
evidence can support a finding that a firearm was operable, including explicit or implicit
threats made by the person in control of the firearm." State v. Dutton, 10th Dist. No.
09AP-365, 2009-Ohio-6120, ¶ 8. "A victim's belief that the weapon is a gun, together
with the intent on the part of the accused to create and exploit that belief for his own
criminal purposes, is sufficient to prove a firearm specification." Id. "Even actions alone,
without verbal threats, may constitute sufficient circumstances to establish the operability
of a firearm." Id. at ¶ 9. See also State v. Poulson, 10th Dist. No. 09AP-778, 2010-Ohio-
3574, ¶ 36-38 (holding that evidence supported finding that a firearm was operable where
the defendant pointed it at store employees and ordered them into a back room,
announced he was committing a robbery, and told one employee he was not going to
shoot the employee, thus implying that the gun was real and had the ability to shoot).
{¶ 22} In the present case, J.H. testified at trial that appellant retrieved one
firearm from an area near the bed, and the second gun was in the waistband of appellant's
pants. She testified appellant pointed the gun at her head while forcing her to remove her
clothes and while committing the rape. J.H. told the nurse examiner that appellant
pointed the gun at her and told her to remove her clothes; when she refused, appellant
cocked the gun and threatened to shoot her. She further told the nurse examiner
appellant held the gun to her back while kissing her neck. Additionally, Detective
Cameron's report indicated that J.H. stated appellant actioned the slide mechanism of the
gun and pointed it at her. J.H. told Detective Cameron appellant held the gun to her head
while kissing her neck and touching her breast. Viewed in the light most favorable to the
prosecution, this evidence, if believed by the trial court, was sufficient to establish that
appellant possessed and brandished an operable firearm while committing the offenses of
rape, gross sexual imposition, and kidnapping, thus proving the essential elements of the
firearm specifications associated with each charge.
{¶ 23} The fifth count of the indictment charged appellant with having a weapon
under disability, in violation of R.C. 2923.13, asserting that appellant knowingly acquired,
had, carried, or used a firearm, and that he had been adjudicated a delinquent child for an
offense that, if committed by an adult, would have been a felony offense of violence.
No. 16AP-540 11

Appellant stipulated at trial that he previously had been found to be a delinquent child,
having committed the offense of robbery. As explained above, the circumstantial evidence
presented at trial was sufficient to establish that appellant possessed an operable firearm
during the commission of his crimes. Viewed in the light most favorable to the
prosecution, appellant's stipulation and the evidence presented at trial regarding the
firearms, if believed by the trial court, were sufficient to establish the elements of the
charge of having a weapon under disability.
{¶ 24} Having concluded there was sufficient evidence to support each conviction,
we turn to appellant's argument that the convictions were against the manifest weight of
the evidence. "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25.
When presented with a challenge to the manifest weight of
the evidence, an appellate court may not merely substitute
its view for that of the trier of fact, but 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. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 12, citing Thompkins at
387. This authority " 'should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.' " Thompkins at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In conducting our review of the
evidence, "we are guided by the presumption that the jury, or the trial court in a bench
trial, 'is best able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶ 25} Appellant argues that because he admitted to having intercourse with J.H.,
the main issues at trial were whether the intercourse was consensual and whether he
possessed a firearm during the events. Appellant's arguments generally focus on J.H.'s
No. 16AP-540 12

credibility, arguing that her statements were inconsistent during the investigation and at
trial. Appellant notes that J.H. told Officer Braskie multiple times that she was not raped
or forced to have sex, and that her primary concern was whether she would get pregnant.
Appellant also claims J.H. did not tell Officer Dripps or Detective Cameron that she had
told Officer Braskie she was not raped. Appellant further argues that various details in
J.H.'s description of the incident changed throughout the investigation and at trial. J.H.
did not mention firearms when she was interviewed by Officer Braskie. Appellant also
claims J.H. was inconsistent regarding from where appellant retrieved the gun in her
statements to Officer Dripps, Detective Cameron, and the nurse examiner. He argues her
statement at trial about appellant having a gun in the waistband of his pants was
inconsistent with her prior statements to police. He claims J.H. also made inconsistent
statements about whether she and appellant had begun watching a movie when the
incident occurred or whether they had just gone to select a movie, about where she was
positioned before the rape occurred, and about whether she or appellant removed her
clothes.
{¶ 26} "[A]lthough an appellate court must act as a 'thirteenth juror' when
considering whether the manifest weight of the evidence requires reversal, it must give
great deference to the fact finder's determination of the witnesses' credibility." State v.
Spires, 10th Dist. No. 10AP-861, 2011-Ohio-3312, ¶ 18. "[A] defendant is not entitled to a
reversal on manifest weight grounds merely because inconsistent evidence was presented
at trial." Id. With respect to J.H.'s denial of having been raped during the interview by
Officer Braskie, she also denied wanting to have sex with appellant and it was clear from
the recording that she was upset and wanted to end the interview as quickly as possible.
At trial, J.H. testified she lied to Officer Braskie because he was rude and she was
uncomfortable being in the police cruiser, and because she did not want to talk about the
incident. Appellant's trial counsel cross-examined J.H. regarding the alleged
inconsistencies in her statements during the investigation, and cross-examined Officer
Dripps, Detective Cameron, and the nurse examiner about J.H.'s description of the
incident. Thus, the trial court was aware of the alleged inconsistencies and was able to
consider these when weighing J.H.'s credibility. Based on our review of the evidence and
all reasonable inferences, and considering the credibility of the witnesses, we cannot find
No. 16AP-540 13

that the trial court clearly lost its way and created such a manifest miscarriage of justice
that the convictions must be reversed.
{¶ 27} Accordingly, we overrule appellant's first assignment of error.
B. Constitutionality of weapon under disability conviction
{¶ 28} In his second assignment of error, appellant argues that his conviction for
having a weapon under disability violated the Ohio Constitution and the Federal
Constitution. Appellant's trial counsel did not raise this issue at trial, therefore appellant
has waived all but plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-
4034, ¶ 15-16. "Plain error consists of an obvious error or defect in the trial proceedings
that affects a substantial right." State v. Lindsey, 87 Ohio St.3d 479, 482 (2000). We take
notice of plain error " 'with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice.' " State v. Barnes, 94 Ohio St.3d 21, 27
(2002), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶ 29} Appellant asserts his conviction for having a weapon under disability was
unconstitutional because the disability arose from having been adjudicated a delinquent
child on a charge of robbery in 2005. Appellant argues that, under the reasoning of the
Supreme Court of Ohio in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, a prior
juvenile adjudication that was not subject to the right to a jury trial cannot form the basis
for a subsequent conviction for having a weapon under disability. In Hand, the court held
that R.C. 2901.08(A) was unconstitutional "because it is fundamentally unfair to treat a
juvenile adjudication as a previous conviction that enhances either the degree of or the
sentence for a subsequent offense committed as an adult." Id. at paragraph one of the
syllabus. The court further explained that "[b]ecause a juvenile adjudication is not
established through a procedure that provides the right to a jury trial, it cannot be used to
increase a sentence beyond a statutory maximum or mandatory minimum." Id. at
paragraph two of the syllabus. The Hand decision did not directly address the
constitutionality of the weapon under disability statute, R.C. 2923.13, but appellant
argues that the reasoning in Hand applies equally to that provision.
{¶ 30} "An enactment of the General Assembly is presumed to be constitutional,
and before a court may declare it unconstitutional it must appear beyond a reasonable
doubt that the legislation and constitutional provisions are clearly incompatible." State ex
rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. The
No. 16AP-540 14

decision in Hand was limited solely to the statute treating a prior juvenile adjudication as
a prior "conviction" for purposes of determining the degree or the sentence for a
subsequent offense committed as an adult. Hand at ¶ 37. Unlike the scenario in Hand,
under R.C. 2923.13(A)(2), a prior juvenile adjudication does not result in an enhancement
of the degree or potential punishment for an offense; instead, the fact of having been
adjudicated a delinquent juvenile is one of the predicates for the offense. The statute also
prohibits possession of a firearm by individuals in other classifications that do not result
from a trial by jury, such as individuals who are under indictment for a felony offense of
violence or involving a drug of abuse, individuals who are drug dependent, or who have
been adjudicated mentally incompetent. R.C. 2923.13(A)(2) through (5).
{¶ 31} In State v. Carnes, 1st Dist. No. C-150752, 2016-Ohio-8019, the First
District Court of Appeals recently affirmed a weapon under disability conviction where
the disability "was a [prior] juvenile adjudication for an offense that would have
constituted felonious assault had [the defendant] been an adult." Id. at ¶ 2. The majority
rejected the applicability of Hand to R.C. 2923.13(A)(2) and found it to be not relevant
because Hand's holding is limited to banning the use of a juvenile adjudication to enhance
punishment. Carnes at ¶ 15. The dissent in Carnes disagreed and reasoned:
Th[e] fundamental unfairness [of allowing juvenile
adjudications that result from less formal proceedings to be
characterized as criminal convictions that may later enhance
adult punishment], sufficient to deny a defendant due
process of law, is even more apparent when a juvenile
adjudication is the essential predicate for a criminal
proceeding, where its use results not just in a longer sentence
but in a loss of liberty itself. If juvenile adjudications are not
reliable enough to enhance a criminal sentence, surely they
are not sufficiently reliable to alone sustain proof beyond a
reasonable doubt of an element of a crime.

Id. at ¶ 19 (Cunningham, P.J., dissenting).
{¶ 32} Given the factual differences in Hand and the case before us, as well as the
timing of Hand's release after the trial court made its determination in this case, pursuant
to the plain error standard, we cannot find that the trial court committed plain error in
finding a prior juvenile robbery adjudication to constitute a disability for the purpose of
appellant's conviction for having a weapon under disability.
{¶ 33} Accordingly, we overrule appellant's second assignment of error.
No. 16AP-540 15

C. Award of jail-time credit
{¶ 34} Appellant asserts in his third assignment of error that the trial court erred in
calculating the jail-time credit to which he was entitled. R.C. 2967.191 provides that a
prisoner shall receive jail-time credit for "the total number of days that the prisoner was
confined for any reason arising out of the offense for which the prisoner was convicted
and sentenced, including confinement in lieu of bail while awaiting trial." (Emphasis
added.) "Although R.C. 2967.191 mandates that prison authorities credit an inmate with
jail time already served, it is the responsibility of the trial court to make the factual
determination as to the number of days of confinement that a defendant may receive."
State v. Doyle, 10th Dist. No. 12AP-567, 2013-Ohio-3262, ¶ 20, citing State ex rel. Rankin
v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, ¶ 7.
{¶ 35} The trial court awarded appellant 20 days of jail-time credit. Appellant did
not object to the jail-time credit at sentencing; appellant's counsel indicated that 20 days
was the correct amount of jail-time credit. Accordingly, appellant has waived all but plain
error for purposes of appeal. State v. Hunter, 10th Dist. No. 08AP-183, 2008-Ohio-6962,
¶ 16.2
{¶ 36} In the present case, appellant was indicted on September 24, 2015. A
warrant was issued as a detainer to the Ross County jail that same day. Appellant entered
a not guilty plea in the Franklin County Court of Common Pleas on November 6, 2015,
and his bond was set at $150,000. The record includes multiple warrants to convey
appellant from the Ross County jail to the Franklin County jail for various portions of the
proceedings, thus reflecting that appellant was in custody in Ross County at times and in
custody in Franklin County at times while this case was proceeding. At sentencing in the
present case, on June 28, 2016, appellant's trial counsel informed the court that appellant
had not been released from custody by Ross County on June 7, 2016, but continued to be
held pursuant to the Franklin County detainer. This formed the basis for the 20-day
request for jail-time credit made by appellant's trial counsel.
{¶ 37} Appellant argues that he was entitled to 236 days of jail-time credit in the
present case, from November 6, 2015, to June 28, 2016, citing the Supreme Court's
decision in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856. In Fugate, the court held

2The state asserts that we should apply the invited error doctrine because appellant's trial counsel requested
20 days of jail-time credit, which the trial court awarded. See Appellee's Brief at 17-18. However, in cases
such as Hunter, this court has applied the plain error standard in similar circumstances. See Hunter at ¶ 16.
No. 16AP-540 16

that "defendants who are sentenced to concurrent prison terms are entitled to have jail-
time credit applied toward all prison terms for charges on which they were held." Id. at
¶ 1. In Fugate, the Supreme Court determined that time served as a result of a community
control violation on a previous offense should be credited to the community control case
as well as to a new case within which he was indicted on two new felony offenses while the
community control case was pending. The facts in Fugate differ significantly from the
facts here, where appellant was subject to a detainer from Franklin County while being
held on the separate Ross County case.
{¶ 38} In Doyle,3 we referred to our holding in Hunter that:
R.C. 2967.191 requires jail-time credit for "the total number
of days that the prisoner was confined for any reason arising
out of the offense for which the prisoner was convicted and
sentenced." (Emphasis added.) The statute therefore
"requires a connection between the jail-time confinement
and the offense upon which the defendant is
convicted." State v. Thomas, 10th Dist. No. 12AP-144, 2012-
Ohio-4511, ¶ 6. As a result, "[t]here is no jail-time credit for
time served on unrelated offenses, even if that time served
runs concurrently during the pre-detention phase of another
matter." State v. Hunter, 10th Dist. No. 08AP-183, 2008-
Ohio-6962, ¶ 20.

Id. at ¶ 20.
{¶ 39} Appellant acknowledges that he was sentenced to time-served in the Ross
County case, but argues the sentence in the present case should have been imposed
concurrent to that sentence, claiming that he was held on both cases at the same time and
should have received jail-time credit on both cases. Nevertheless, appellant did not
address, and the record does not reveal, whether the detention in the Ross County case
arose out of the offense for which he was convicted and sentenced in the present case. Or,
stated differently, whether there is a connection between the confinement in the Ross
County case and the offense in the present case.
{¶ 40} It is the duty of the appellant on appeal to show an error in the jail-time
credit calculation. "If the appellant has failed to demonstrate error, and no miscalculation
in the jail-time credit is apparent from the record, any claimed error must be overruled."

3 We note our discussion in Doyle that under Fugate "pretrial detention time on one charge, even when the

defendant is simultaneously detained awaiting trial on other, unrelated charges, is creditable in most
circumstances." (Emphasis sic.) Id. at ¶ 25.
No. 16AP-540 17

Hunter at ¶ 17. The state argues the record is insufficient to adequately determine if any
error occurred. We agree. Considering the insufficient record, the factual differences with
Fugate, and our statements in Hunter, we cannot say that the trial court committed plain
error in only granting 20 days of jail-credit conceded by appellant below to be correct.
{¶ 41} Accordingly, we overrule appellant's third assignment of error.
D. Ineffective assistance of counsel
{¶ 42} Appellant claims in his fourth assignment of error that his trial counsel
provided ineffective assistance by failing to call a particular witness to testify, failing to
object to the trial court questioning witnesses, failing to provide mitigation evidence at
sentencing, and failing to request the correct amount of jail-time credit. Appellant also
argues that the cumulative effect of these alleged errors by his trial counsel resulted in
ineffective assistance.
{¶ 43} We apply a two-part test to evaluate claims of ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was
deficient. * * * Second, the defendant must show that the deficient performance
prejudiced the defense." Strickland at 687. "To show that a defendant has been
prejudiced by counsel's deficient performance, the defendant must prove that there exists
a reasonable probability that, were it not for counsel's errors, the result of the trial would
have been different." Bradley at paragraph three of the syllabus. "Judicial scrutiny of
counsel's performance must be highly deferential [and] [b]ecause of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance."
Strickland at 689; Bradley at 141. We will consider each of appellant's claims of
ineffective assistance in turn.
1. Failure to call Officer Braskie as a witness
{¶ 44} Appellant first argues his trial counsel provided ineffective assistance by
failing to call Officer Braskie as a witness at trial. Appellant asserts Officer Braskie could
have testified that J.H. denied being raped multiple times when he was interviewing her
in her house, before the portion of the interview that occurred in his police cruiser.
Appellant claims Officer Braskie could have provided additional testimony about J.H.'s
demeanor during the interview. Appellant also claims that Officer Braskie could have
No. 16AP-540 18

rebutted J.H.'s testimony regarding his conduct during the interview and her claim that
he would not let her out of the police cruiser.
{¶ 45} Generally, counsel's decision whether to call a particular witness falls within
the purview of trial strategy, and a reviewing court will not second guess that decision.
State v. Davis, 10th Dist. No. 09AP-869, 2010-Ohio-4734, ¶ 18. Additionally, "a
defendant is not deprived of effective assistance of counsel when counsel chooses, for
strategical reasons, not to pursue every possible trial tactic." State v. Brown, 38 Ohio
St.3d 305, 319 (1988). In this case, the video of Officer Braskie's interview with J.H. was
played for the court. Although neither Officer Braskie nor J.H. were visible on the video,
the trial court would have been able to make its own evaluation of J.H.'s demeanor based
on the audio of her statements on that video. Appellant's counsel cross-examined J.H.
about the interview conducted by Officer Braskie and she admitted that she denied having
been raped during that interview. While calling Officer Braskie as a witness may have
served to reinforce these points, appellant's trial counsel had already raised them for the
trial court's consideration.
{¶ 46} Moreover, assuming for purpose of analysis that appellant's trial counsel
performed deficiently by failing to call Officer Braskie to testify, that is only the first step
of the test for ineffective assistance of counsel. Appellant must also demonstrate a
reasonable probability that, but for this failure, the outcome of the trial would have been
different. Bradley at paragraph three of the syllabus. "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Strickland at 694.
Appellant argues that Officer Braskie "would have essentially testified J.H. was a liar."
(Appellant's Brief at 41.) To the extent appellant's defense depended on challenging J.H.'s
credibility, appellant's trial counsel pursued this strategy throughout the trial by the cross-
examination of J.H. and the prosecution's other witnesses. The trial court was aware of
the alleged inconsistencies in J.H.'s description of the events and still found her testimony
sufficiently credible to find appellant guilty. Appellant has failed to demonstrate a
reasonable probability that calling Officer Braskie to testify would have changed the trial
court's credibility determination and resulted in a different outcome.
2. Failure to object to trial court questioning witnesses
{¶ 47} Appellant next argues his trial counsel was ineffective by failing to object to
the trial court asking questions of witnesses, particularly J.H., during a bench trial.
No. 16AP-540 19

Appellant asserts the trial court's questions helped the prosecution in proving its case.
Appellant cites the Supreme Court's decision in State v. Fisher, 99 Ohio St.3d 127, 2003-
Ohio-2761, which identified concerns with permitting jurors to question witnesses during
trial, and argues that these concerns apply equally when the trial court asks questions of
witnesses in a bench trial when it is acting as the finder of fact.
{¶ 48} Generally, in a bench trial, we presume the trial court relied on only
relevant, material, and competent evidence in reaching its judgment absent a showing to
the contrary. State v. Turner, 10th Dist. No. 04AP-364, 2004-Ohio-6609, ¶ 24, citing
State v. Richey, 64 Ohio St.3d 353, 357 (1992). The Rules of Evidence expressly provide
that the court may interrogate witnesses in an impartial manner. Evid.R. 614(B). " 'In
absence of any showing of bias, prejudice, or prodding of a witness to elicit partisan
testimony, it will be presumed that the trial court acted with impartiality [in propounding
to the witness questions from the bench] in attempting to ascertain a material fact or to
develop the truth.' " State v. Baston, 85 Ohio St.3d 418, 426 (1999), quoting Jenkins v.
Clark, 7 Ohio App.3d 93, 98 (2d Dist.1982).
{¶ 49} The Supreme Court considered the practice of allowing jurors to question
witnesses in Fisher. The court noted there were several potential benefits, but also
addressed concerns with the practice:
Courts have identified four principal dangers inherent in juror
questioning: (1) jurors may submit inadmissible questions,
(2) counsel may refrain from objecting to improper questions
for fear of offending jurors, (3) juror interruptions may
disrupt courtroom decorum, and (4) such questioning may
distort juror impartiality.

Id. at ¶ 24, citing Spitzer v. Haims & Co., 217 Conn. 532, 546-47 (1991). The Fisher
decision did not address the scenario of the trial court asking questions when conducting
a bench trial. Contrary to appellant's assertion, the concerns identified in Fisher do not
apply with equal force in that scenario. It is less likely that the trial court would ask an
inadmissible question. Similarly, it is unlikely that the trial court's questions would
disrupt courtroom decorum or distort the court's own impartiality.
{¶ 50} In the present case, the court asked questions during direct examination of
V.H., direct examination and cross-examination of J.H., direct examination of Detective
Cameron, and direct examination of the nurse examiner. The trial court's questions
No. 16AP-540 20

appear to have been generally intended to clarify factual issues, such as the following
questions posed to J.H.:
The Court: Can you describe the gun for me, please?

[J.H.]: One of them was like a silver and black, and one was all
black.

The Court: Do you know the difference between a revolver
and a semiautomatic?

[J.H.]: It's not a semiautomatic. I would probably say it's like
a revolver.

The Court: So one was silver and black, you're saying, and one
was --

[J.H.]: All black.

The Court: Did he hold both guns?

[J.H.]: I saw one gun, but the other gun was in his pants.

The Court: Where at in his pants?

[J.H.]: Right here, like in the front.

The Court: Was that gun in his pants when you guys were
upstairs watching basketball?

[J.H.] I don't know.

The Court: All right. Go ahead. Thank you.

(Tr. at 44-45.) The court also intervened to prevent J.H. from testifying to inadmissible
hearsay:
[J.H.]: I would say a couple days later, I'm coming from BP,
and he'll walk behind me and --

The Court: Okay. Stop there. So you can't testify as to what he
told you unless -- it wasn't him, is that correct? It's not the
defendant. You're saying it's the defendant's either brother or
brother-in-law?

[J.H.]: Uh-huh.

The Court: He said something to you?
No. 16AP-540 21

You have to answer out loud.

[J.H.]: Yes.

The Court: As a result of him saying something to you, did you
do something? What did you do?

[J.H.]: I didn't say anything. I got scared and rushed home
because I didn't know if he was talking to me or if he was
talking to a different person.

The Court: Okay.

(Tr. at 53-54.)

{¶ 51} The questions asked by the trial court do not demonstrate any prejudice or
bias, and they do not appear to have resulted in the introduction of inadmissible or
irrelevant evidence. Appellant has failed to establish that his trial counsel performed
deficiently by not objecting to the trial court's questions. Additionally, appellant has
failed to establish a reasonable probability that the result of the trial would have been
different if his counsel had objected to the trial court's questions.
3. Failure to provide mitigating evidence at sentencing
{¶ 52} Appellant also claims his trial counsel was ineffective by failing to provide
mitigating evidence during sentencing. Before the court imposed sentence, appellant's
trial counsel asked the court not to penalize appellant for not speaking on his own behalf.
He also mentioned that appellant had three children and asked the trial court not to
impose the maximum sentence on appellant.
{¶ 53} "Generally, trial counsel's decision as to what mitigating evidence to present
is a matter of trial strategy." State v. Phipps, 10th Dist. No. 14AP-545, 2015-Ohio-3042,
¶ 21, citing State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 37. In this
case, the trial court proceeded directly to sentencing after announcing its verdict.
Appellant's trial counsel expressed difficulty in transitioning immediately to the
sentencing phase. Therefore, his failure to provide additional mitigating evidence may
not have been a strategic decision. Assuming for purposes of analysis that appellant's trial
counsel performed deficiently, however, appellant must also demonstrate a reasonable
probability that the sentence would have been different if additional mitigating evidence
No. 16AP-540 22

was provided. The trial court announced his intention to impose a mid-range sentence,
having concluded that the facts in the case were "pretty egregious." (Tr. at 201.) The
court initially announced it would impose a ten-year sentence, but after being informed
that appellant would not be eligible for judicial release on the rape charge, modified the
sentence to a total of nine years. Although appellant claims that his trial counsel could
have argued that it was not one of the worst forms of the offense or provided background
to establish that appellant was not likely to commit future crimes, the trial court appears
to have had a firm position on the appropriate sentence. Under these circumstances, we
conclude that appellant has not demonstrated a reasonable probability that his sentence
would have been different if his trial counsel had provided additional mitigating evidence
during the sentencing phase.
4. Failure to argue that weapon under disability conviction was
unconstitutional
{¶ 54} Appellant further argues that his trial counsel provided ineffective
assistance by failing to challenge the constitutionality of his conviction for having a
weapon under disability. Appellant's constitutional argument is based on an extension of
the Supreme Court's decision in Hand. The Hand decision was issued on August 25,
2016. The trial and sentencing in the present case were held on June 27th and 28th,
2016. Thus, the Supreme Court had not decided Hand at the time of appellant's trial and
sentencing. Appellant argues, however, that his trial counsel could have objected to
preserve a constitutional challenge to the weapon under disability conviction because,
prior to his trial, the Supreme Court had accepted jurisdiction over the appeal in Hand.
{¶ 55} As explained above, Hand involved a challenge to the constitutionality of
R.C. 2901.08(A), whereas appellant was charged with having violated R.C. 2923.13(A)(2).
An objection to appellant's conviction under R.C. 2923.13(A)(2) based on the fact that the
Supreme Court had taken jurisdiction over the appeal in Hand would have been highly
speculative—essentially arguing that the court might hold R.C. 2901.08(A)
unconstitutional based on reasoning that might also apply to R.C. 2923.13(A)(2). Under
these circumstances, we cannot conclude that appellant's trial counsel performed
deficiently by failing to object to the constitutionality of appellant's conviction for having a
weapon under disability. See, e.g., State v. Meeds, 2d Dist. No. 2003 CA 5, 2004-Ohio-
3577, ¶ 21-22 (holding that court could not conclude trial counsel was ineffective for
No. 16AP-540 23

failing to present "novel argument" regarding whether a confession was made during the
course of plea negotiations that would have been an issue of first impression in the state).
5. Failure to request additional jail-time credit
{¶ 56} Appellant claims that his trial counsel also provided ineffective assistance
during sentencing by failing to request more than 20 days of jail-time credit. As explained
above, we conclude the trial court did not commit plain error by failing to evaluate
whether appellant was entitled to jail-time credit for any of the period that he was held
subject to the detainer issued by the Franklin County trial court. Our determination is
based in large part due to lack of record regarding the Ross County case as well as the
factual differences between this case and Fugate. With this in mind, on direct appeal, we
cannot say that appellant's trial counsel performed deficiently by requesting only 20 days
of jail-time credit.
6. Cumulative effect of ineffectiveness
{¶ 57} Finally, appellant argues that the cumulative effect of his trial counsel's
alleged errors deprived him of his right to a fair trial. However, as explained above, with
the exception of the failure to request additional jail-time credit, which is rendered moot
by our decision on the merits of that issue, none of appellant's individual claims of
ineffective assistance of counsel has merit. Appellant cannot establish that he is entitled
to relief simply by combining those unsuccessful claims together. See State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, ¶ 134 (rejecting claim that cumulative
effect of counsel's errors and omissions constituted ineffective assistance of counsel where
court rejected each of appellant's individual claims of ineffective assistance); State v.
Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, ¶ 173 ("[B]ecause none of Mammone's
individual claims of ineffective assistance has merit, he cannot establish an entitlement to
relief simply by joining those claims together."); State v. Cline, 10th Dist. No. 05AP-869,
2006-Ohio-4782, ¶ 29 ("Finding no instances of ineffective assistance of counsel, we find
no cumulative error as a result of the combined effect of the alleged instances of
ineffective assistance of counsel.").
{¶ 58} Accordingly, we overrule appellant's fourth assignment of error.
No. 16AP-540 24

IV. Conclusion
{¶ 59} For the foregoing reasons, we overrule appellant's four assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, J., concurs.
HORTON, J., concurs in part and dissents in part.
HORTON, J., concurring in part and dissenting in part.
{¶ 60} While I concur with the majority in part, I respectfully dissent regarding its
decision to overrule Williams' second assignment of error.
{¶ 61} The Fifth Amendment of the United States Constitution recognizes that a
defendant must not be deprived of liberty "without due process of law," and the Sixth
Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury." The United States Supreme Court has long
recognized that "these provisions require criminal convictions to rest upon a jury
determination that the defendant is guilty of every element of the crime with which he is
charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510 (1995).
{¶ 62} This foundational principle—that every element of a crime must be proved
beyond a reasonable doubt—also applies to facts that, if proved, increase the penalties a
defendant faces. This is because "a fact is by definition an element of the offense and must
be submitted to the jury if it increases the punishment above what is otherwise legally
prescribed." Alleyne v. United States, __U.S.__, 133 S.Ct. 2151, 2158 (2013). Thus, in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court
held: "Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." In Alleyne, the court recognized that this requirement also
applies to facts that increase a statutorily prescribed mandatory minimum sentence.
Alleyne at 2158.
{¶ 63} As Apprendi made clear, the one exception is "the fact of a prior conviction,"
which need not be submitted to a jury. Id. at 490. The Supreme Court of Ohio explained
this exception in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, at ¶ 31:
But prior convictions are treated differently only because
'unlike virtually any other consideration used to enlarge the
possible penalty for an offense, * * * a prior conviction must
No. 16AP-540 25

itself have been established through procedures satisfying the
fair notice, reasonable doubt, and jury trial guarantees.' Jones
v. United States, 526 U.S. 227, 249, 119 S.Ct. 1215, 143
L.Ed.2d 311 (1999). Thus, at the heart of Apprendi's narrow
exception is the concept that the prior conviction was the
result of a proceeding in which the defendant had the right to
a jury trial and the right to require the prosecutor to prove
guilt beyond a reasonable doubt.

{¶ 64} Because, however, the Sixth Amendment right to a jury trial is absent from
juvenile adjudications, Hand determined that such adjudications could not be included in
Apprendi's exception for actual convictions:
Given the United States Supreme Court's emphatic
pronouncements on the importance of the right to a jury trial,
it is logical to conclude that the court meant to limit the prior-
conviction exception to prior proceedings that satisfied the
jury-trial guarantee. Because a juvenile adjudication is not
established through a procedure that provides the right to a
jury trial, it cannot be used to increase a sentence beyond a
statutory maximum or mandatory minimum.

Hand at ¶ 34. The court further reasoned:
The right to a jury trial is fundamental to due process just as
the right to counsel is fundamental. But in juvenile
proceedings, there is no right to a jury because the focus is on
rehabilitation rather than punishment. To convert an
adjudication into a conviction when the adjudication process
did not provide the right to have a jury test the elements of
that offense offends due process and Apprendi and thus the
state cannot treat a prior juvenile adjudication as a prior
conviction to enhance the penalty for a subsequent conviction.
Id. at ¶ 36.
{¶ 65} Applying these principles, the Supreme Court of Ohio held that R.C.
2901.08(A), a statute that treated a juvenile adjudication as a conviction for purposes of
determining the offense level and sentencing, violated the Due Process Clauses of the
United States Constitution and the Ohio Constitution. Id. at ¶ 37.
{¶ 66} In this case, Williams was convicted of having a weapon while under
disability under R.C. 2923.13. The statute states that "no person shall knowingly acquire,
have, carry, or use any firearm" in a number of circumstances. Relevant here is the
prohibition on carrying a firearm if a defendant "has been convicted of any felony offense
of violence or has been adjudicated a delinquent child for the commission of an offense
No. 16AP-540 26

that, if committed by an adult, would have been a felony offense of violence." R.C.
2923.13(A)(2). The statute treats a defendant's previous conviction for a violent offense,
or a delinquency adjudication of what would have been a violent offense if committed by
an adult, as two alternatives to prove the same element of the offense. However, only the
first alternative—actual conviction—results from a constitutionally sound process that
affords a defendant all the rights to which he is entitled under the Fifth and Sixth
Amendments. See Hand at ¶ 31. Thus, Williams' conviction under the other element,
which requires only a delinquency adjudication resulting from a process that did not
include the right to a jury trial, violated his right to due process. In the juvenile court, no
"jury test[ed] the elements of that offense," and, under Hand, it cannot be treated as a
prior conviction to support an offense. Id. at ¶ 36.
{¶ 67} The majority asserts that Hand does not control because it "was limited
solely to the statute treating a prior juvenile adjudication as a prior 'conviction' for
purposes of determining the degree or the sentence for a subsequent offense committed
as an adult," and, here, "under R.C. 2923.13(A)(2), a prior juvenile adjudication does not
result in an enhancement of the degree or potential punishment for an offense; instead,
the fact of having been adjudicated a delinquent juvenile is one of the predicates for the
offense." (Majority Decision at ¶ 30.) When considering constitutional challenges to
convictions for having a weapon while under disability based on a defendant's previous
delinquency adjudication, other Ohio courts of appeals have pointed to this same
purported distinction as a justification for not applying Hand. State v. McComb, 2d Dist.
No. 26884, 2017-Ohio-4010, ¶ 26 ("Hand does not ban the use of a prior juvenile
adjudication as an element of an offense; rather, Hand bans the use of a juvenile
adjudication to enhance a penalty by treating the adjudication as an adult conviction.");
State v. Hudson, 7th Dist. No. 15 MA 0134, 2017-Ohio-645, ¶ 51 (declining to apply Hand
because the case before did "not involve increasing the degree of an offense or enhancing
a penalty for an offense," but involved "a juvenile with a prior adjudication for an offense
that would be a felony of violence if committed by an adult"); State v. Carnes, 1st Dist. No.
C-150752, 2016-Ohio-8019, ¶ 15 (interpreting Hand as "limited to banning the use of a
juvenile adjudication to enhance punishment").
{¶ 68} However, constitutionally there is no distinction between facts that enhance
punishment and the facts that prove an element of the crime. The United States Supreme
No. 16AP-540 27

Court stated this unequivocally in Alleyne when explaining Apprendi: "In Apprendi, we
held that a fact is by definition an element of the offense and must be submitted to the
jury if it increases the punishment above what is otherwise legally prescribed." Alleyne at
2158. Apprendi as well states that "facts that expose a defendant to a punishment greater
than that otherwise legally prescribed were by definition 'elements' of a separate legal
offense." Apprendi at 483, fn. 10. The equivalency is sound, as it merely emphasizes the
foundational principle that every element of a crime must be proved beyond a reasonable
doubt. Gaudin at 510.
{¶ 69} Because every element must be proved to a jury beyond a reasonable doubt,
the burden on the state to convict a defendant for robbery is not equivalent to, and is
much heavier than, what it must prove to secure an adjudication of delinquency against a
minor. R.C. 2901.08, the statute invalidated in Hand, and R.C. 2923.13, the weapons
while under disability statute, both equated convictions and delinquency adjudications.
Thus, I disagree with the majority that Hand is limited to R.C. 2901.08, the statute it
invalidated, and I would apply its reasoning to any conviction under R.C. 2929.13 based
on a juvenile adjudication. For the foregoing reasons, I would sustain the second
assignment of error, vacate Williams' conviction under R.C. 2929.13, and remand for
resentencing.
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