State v. Bragg

[Cite as State v. Bragg, 2017-Ohio-5726.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 16-CA-95
DANIEL B. BRAGG :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
16CR311

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 3, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAULA SAWYERS KEVIN GALL
Assistant Prosecuting Attorney Burkett & Sanderson, Inc.
20 S. Second Street, 4th Floor 73 North Sixth Street
Newark, OH 43055 Newark, OH 43055
[Cite as State v. Bragg, 2017-Ohio-5726.]

Gwin, P.J.

{¶1} Appellant Daniel Bragg [“Bragg”] appeals his conviction and sentence after

a jury trial for one count of rape of a minor under 13 years old.

Facts and Procedural History

{¶2} This case involves allegations of inappropriate sexual conduct between

Bragg and the alleged victim, an eleven-year-old girl. The testimony of the alleged victim

was that Bragg forced her to perform oral sex on him, he would perform oral sex on her,

and he would engage in intercourse with the victim. It is alleged that these acts took place

from October 2015 to May 2016. These acts allegedly occurred in Bragg's home.

Detective Mike Collins of the Licking County Sheriff's Office was given consent to search

Bragg’s home. A camisole and underwear consistent with the victim's size was found

in Bragg’s bedroom. Bragg admitted to Detective Collins that he and the victim would

kiss. (1T. at 160). Detective Collins collected some of the victim’s underwear from her

father. The underwear showed signs of bloodstains on them and were submitted to

BCI for testing.

{¶3} Bragg was indicted in a five-count indictment charging him with Rape of a

minor under the age of thirteen. After considering the evidence and the arguments of

counsel, the jury returned a "guilty" verdict as to Count One of the Indictment, and "not

guilty" verdicts as to Counts Two through Five of the Indictment. Mr. Bragg was then

sentenced to a mandatory term of ten years to life imprisonment.

Assignments of Error

{¶4} Bragg presents four assignments of error for our review:
Licking County, Case No. 16-CA-95 3

{¶5} “I. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO OBJECT TO

HEARSAY TESTIMONY.

{¶6} “II. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO OBJECT TO

LEADING QUESTIONS DURING DIRECT EXAMINATION.

{¶7} “III. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO OBJECT TO

TESTIMONY FROM KELLY MORRISON THAT EXCEEDED THE SCOPE OF HER

KNOWLEDGE AND EXPERTISE AND WAS UNFAIRLY PREJUDICIAL.

{¶8} “IV. THE CUMULATIVE EFFECT OF TRIAL COUNSEL'S ERRORS SO

PREJUDICED THE DEFENDANT-APPELLANT THAT HE WAS DEPRIVED OF HIS

CONSTITUTIONAL RIGHT TO A FAIR TRIAL.”

I, II & III

{¶9} Bragg’s first, second and third assignments of error concern ineffective

assistance of trial counsel. Subsumed within this generalized objection are three

challenges to trial counsel’s representation. Specifically, Bragg contends that: (1) trial

counsel failed to object to hearsay testimony, (2) trial counsel failed to object to the state’s

use of leading question, and (3) trial counsel failed to object to an expert witness testifying

beyond her experience and expertise.

Burden of Proof.

{¶10} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of
Licking County, Case No. 16-CA-95 4

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

{¶11} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and Bradley.

Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009).

{¶12} Recently, the United States Supreme Court discussed the prejudice prong

of the Strickland test,

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id., at

694, 104 S.Ct. 2052. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct.

2052. Counsel’s errors must be “so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

(2010). An ineffective-assistance claim can function as a way to escape

rules of waiver and forfeiture and raise issues not presented at trial, and so

the Strickland standard must be applied with scrupulous care, lest “intrusive
Licking County, Case No. 16-CA-95 5

post-trial inquiry” threaten the integrity of the very adversary process the

right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104

S.Ct. 2052. Even under de novo review, the standard for judging counsel’s

representation is a most deferential one. Unlike a later reviewing court, the

attorney observed the relevant proceedings, knew of materials outside the

record, and interacted with the client, with opposing counsel, and with the

judge. It is “all too tempting” to “second-guess counsel’s assistance after

conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell

v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);

Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180

(1993). The question is whether an attorney’s representation amounted to

incompetence under “prevailing professional norms,” not whether it

deviated from best practices or most common custom. Strickland, 466 U.S.,

at 690, 104 S.Ct. 2052.

Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).

{¶13} We note that any error will be deemed harmless if it did not affect the

accused's “substantial rights.” Before constitutional error can be considered harmless,

we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

United States v. Chapman, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Where

there is no reasonable possibility that unlawful testimony contributed to a conviction, the

error is harmless and therefore will not be grounds for reversal. State v. Conway, 108

Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78, citing Chapman; State v. Lytle, 48

Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated in part
Licking County, Case No. 16-CA-95 6

on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154(1978).See

also, State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶177.

1. Failure to object to hearsay.

{¶14} Bragg argues that his trial counsel was ineffective because he failed to object

to hearsay statements. He points to two statements made by Joseph Blue during his

testimony. Specifically the first statement, "My ex-wife catching Dan kissing my

daughter on the lips" and the second statement "I found my daughter and my ex-wife in

my driveway and being told that my daughter has been sexually assaulted by Dan

Bragg."

{¶15} “‘The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d

136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988).

Accord, State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233. A

defendant must also show that he was materially prejudiced by the failure to object.

Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831.

{¶16} As to the first statement, Bragg admitted kissing the victim when interviewed

by Detective Collins. Therefore, any error in the admission of the statement during

Blue’s testimony that Blue’s ex-wife caught Bragg kissing the victim on the lips was

harmless beyond a reasonable doubt. Accordingly, Bragg is unable to demonstrate he

was prejudiced by counsel's ineffectiveness in failing to object to this testimony.

{¶17} Bragg also contends he was prejudiced by counsel’s failure to object to

Blue’s testimony that Blue was “told that my daughter has been sexually assaulted by

Dan Bragg.”
Licking County, Case No. 16-CA-95 7

{¶18} “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one

of the recognized exceptions. Evid.R. 802; State v. Steffen (1987), 31 Ohio St.3d 111,

119, 509 N.E.2d 383.

{¶19} “The hearsay rule ... is premised on the theory that out-of-court statements

are subject to particular hazards. The declarant might be lying; he might have

misperceived the events, which he relates; he might have faulty memory; his words might

be misunderstood or taken out of context by the listener. And the ways in which these

dangers are minimized for in-court statements-the oath, the witness' awareness of the

gravity of the proceedings, the jury's ability to observe the witness' demeanor, and, most

importantly, the right of the opponent to cross-examine-are generally absent for things

said out of court.” Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 2434,

129 L.Ed.2d 476(1994).

{¶20} It is unclear whether Blue was referring to his ex-wife or the victim as the

person who told him Bragg had sexually assaulted the victim. See, 1T. at 110.

{¶21} In the case at bar, the victim testified in detail that Bragg sexually abused

her. As she testified and was subject to cross-examination, the jury was able to determine

her credibility first-hand. Any error in admitting testimony that the victim told Blue or his

ex-wife that Bragg sexually abused her is harmless beyond a reasonable doubt because

the jury heard the victim accuse Bragg of sexually abusing her during her testimony at

trial. Bragg was able to confront and cross-examine the victim concerning her

accusations and whether she told Blue or his ex-wife that Bragg had sexually abused her.
Licking County, Case No. 16-CA-95 8

“Corroboration of victim testimony in rape cases is not required. See State v. Sklenar

(1991), 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks (1991), 71 Ohio App.3d

214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio App.3d 624, 638, 591 N.E.2d

854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7 OBR 464, 455 N.E.2d 1066.”

State v. Johnson, 112 Ohio St .3d 210, 217, 2006-Ohio-6404 at ¶ 53, 858 N.E.2d 1144,

1158.

{¶22} Accordingly, we find that Blue’s testimony did not rise to a level that

adversely affected Bragg’s substantial rights and did not deprive him of a fair trial.

Bragg is unable to demonstrate he was prejudiced by counsel's ineffectiveness in failing

to object to this testimony.

2. Leading questions.

{¶23} Bragg next argues that he was denied ineffective assistance of counsel for

trial counsel's failure to object to leading questions posed to Joseph Blue and the victim.

{¶24} Evidence Rule 611(C) provides that “[l]eading questions should not be used

on the direct examination of a witness except as may be necessary to develop his

testimony.” This rule places the decision whether to allow leading questions on direct

examination within the trial court's discretion. See Staff Note, Evid.R. 611(C); State v.

D’Ambrosio, 67 Ohio St.3d 185, 190, 616 N.E.2d 909, 914(1993). For that reason, the

Ohio Supreme Court has held that the failure to object to leading questions does not

constitute ineffective assistance of counsel. State v. Jackson, 92 Ohio St.3d 436, 449,

751 N.E.2d 946. Further, courts have recognized that due to a trial court's broad

discretion to allow leading questions, the decision to not object to leading questions is a

trial strategy. “Debatable strategic and tactical decisions may not form the basis of a
Licking County, Case No. 16-CA-95 9

claim for ineffective assistance of counsel.” State v. Phillips, 74 Ohio St.3d 72, 85, 1995-

Ohio-171, 656 N.E.2d 643; State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189(1980).

{¶25} Upon review of the questions cited by Bragg, the questions, many of which

though leading, were mainly used to develop the testimony or were inconsequential and

trial counsel might well have not wanted to interrupt the proceedings. (1T. at 104, 108,

112, 116, 135, 136, 138).

{¶26} Bragg relies on State v. Poling, 11th Dist. Portage No. 2004–P–0044, 2006-

Ohio-1008, wherein a conviction was reversed based on prosecutorial misconduct,

including the use of leading questions. In Poling, however, the use of leading questions

was pervasive and egregious. The appellate court observed that 11 witnesses were

presented, leading questions—often supplying testimony—were asked of eight

witnesses, and the leading questions were not buttressed by information elicited in the

normal manner. “These questions, with their answers, often formed a substantial part of

the witness’ performance. The prosecution would persist in leading, following objections

(often sustained) by the trial court. The prosecution did this with mature, experienced

witnesses, such as [a detective]. It did this with its own investigator * * *. It did this the

[the victim’s mother], providing her with an answer following a sustained objection. * * *

The prosecution relied so heavily on leading its witnesses, and supplying them with

answers, that we cannot see how appellant’s conviction could otherwise have been

obtained.” Id. at ¶ 27, 29. The isolated instances of leading questions asked by the

prosecutor at Bragg’s trial were not analogous to Poling. Having reviewed the record,

however, we conclude that the prosecutor resorted to leading questions to move the trial
Licking County, Case No. 16-CA-95 10

along, not to influence his witnesses’ testimony or to supply them with answers. See,

State v. Ross, 2nd Dist. Montgomery No. 22958, 2010-Ohio-843, ¶ 109.

{¶27} Furthermore, based on the overwhelming evidence of Bragg’s guilt, we

cannot say that the outcome of Bragg’s trial would have been different had defense

counsel objected. See, State v. Flowers, 8th Dist. Cuyahoga No. 91864, 2009-Ohio-

4867, ¶29. Accordingly, we find that the prosecutor’s use of leading questions did not

rise to a level that adversely affected Bragg’s substantial rights and did not deprive him

of a fair trial. Bragg is unable to demonstrate he was prejudiced by counsel's

ineffectiveness in failing to object to this testimony.

3. Testimony of expert witness.

{¶28} Bragg argues that the testimony of nurse practitioner Kelly Morrison

concerning epilepsy and autism exceeded the scope of her expertise as a pediatric nurse

practitioner and Bragg's trial counsel should have moved to exclude such testimony as a

violation of Evid.R. 702(B) and Evid.R. 403, as it was unfairly prejudicial. Specifically,

Bragg contends that there was no foundation that the witness was qualified through

knowledge, skill, experience, training, or education, to discuss the effects of epilepsy on

an individuals' short-term and long-term memory. There was no testimony that she was

similarly qualified to discuss the effects of autism on a child's ability to communicate.

{¶29} Evid.R. 702, which governs the admissibility of expert testimony, states: “A

witness may testify as an expert if all of the following apply: (A) The witness' testimony

either relates to matters beyond the knowledge or experience possessed by lay persons

or dispels a misconception common among lay persons; (B) The witness is qualified as

an expert by specialized knowledge, skill, experience, training, or education regarding the
Licking County, Case No. 16-CA-95 11

subject matter of the testimony; (C) The witness' testimony is based on reliable scientific,

technical, or other specialized information.” Evid.R. 702. The proponent of the testimony

bears the burden of establishing the witness's qualification.

{¶30} The testimony that Bragg cites as error concern the effects epilepsy can

have on the brain and how the victim’s developmental delays and autism affected her

ability to communicate. Bragg argues that this testimony provided an explanation to the

jury as to why the victim did not discuss the allegations that account for four of the counts

in the indictment. [Appellant’s Brief at 14].

{¶31} The victim’s father had testified that the victim had epilepsy and had

undergone testing for autism. (1T. at 103-105). He further testified, “She has problems

with motor skills, memory lapse. She also has the – not an ability to put a timeline

together.” (1T. at 104). Further, Blue testified that his daughter has been in behavioral

therapy for a year “and they were unable to connect with her, and they had noticed

tendencies that were coming out as being autistic.” (1T. at 104). Further, the victim

attends a behavioral and special needs school. (1T. at 105).

{¶32} Having reviewed the record, however, we conclude that the testimony of

Ms. Morrison concerned an explanation for the developmental delays experienced by the

victim and how those delays presented themselves during her examination of the victim.

The testimony was not beyond the witness’s specialized knowledge, skill, experience,

training, or education and was not offered for an improper purpose. Further, because the

victim testified at trial the jury was able to assess her ability to recall events and

communicate those events and how her developmental delays presented themselves

during her testimony.
Licking County, Case No. 16-CA-95 12

{¶33} Accordingly, we find that the testimony of Ms. Morrison did not rise to a

level that adversely affected Bragg’s substantial rights and did not deprive him of a fair

trial. Bragg is unable to demonstrate he was prejudiced by counsel's ineffectiveness in

failing to object to this testimony.

Conclusion

{¶34} The claims raised by Bragg do not rise to the level of prejudicial error

necessary to find that he was deprived of a fair trial. Having reviewed the record that

Bragg cites in support of his claim that he was denied effective assistance of counsel, we

find Bragg was not prejudiced by defense counsel’s representation of him. The result of

the trial was not unreliable nor were the proceedings fundamentally unfair because of the

performance of defense counsel. Bragg has failed to demonstrate that there exists a

reasonable probability that, had trial counsel objected as he has suggested in his three

assignments of error, the result of the trial would have changed. As we have noted, any

error in the procedure employed by trial counsel was harmless beyond a reasonable

doubt.

{¶35} Braggs first, second and third assignments of error are overruled.

IV.

{¶36} In his fourth assignment of error, Bragg contends that he was denied a fair

trial due to cumulative errors by the trial court.

{¶37} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150,
Licking County, Case No. 16-CA-95 13

¶197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105

Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶103.

{¶38} Here, Bragg cites the doctrine of cumulative error, lists or incorporates the

previous assignments of error, and gives no analysis or explanation as to why or how the

errors have had a prejudicial cumulative effect. Thus, this assignment of error has no

substance under Bethel and Sapp.

{¶39} Further, where we have found that the trial court did not err, cumulative error

is simply inapplicable. State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003–Ohio-

1313, ¶37. To the extent that we have found that any claimed error of the trial court was

harmless, or that claimed error did not rise to the level of plain error, we conclude that the

cumulative effect of such claimed errors is also harmless because taken together, they

did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 89–90, 2004–

Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.

{¶40} As this case does not involve multiple instances of error, Bragg’s fourth

assignment of error is overruled.
Licking County, Case No. 16-CA-95 14

{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, John, J., and

Baldwin, J., concur