[Cite as State v. Manley, 2017-Ohio-8271.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-17-06
PLAINTIFF-APPELLEE,
v.
JOHN L. MANLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2015 0427
Judgment Affirmed
Date of Decision: October 23, 2017
APPEARANCES:
F. Stephen Chamberlain for Appellant
Jana E. Emerick for Appellee
Case No. 1-17-06
SHAW, J.
{¶1} Defendant-appellant, John Manley (“Manley”), brings this appeal from
the January 10, 2017, judgment of the Allen County Common Pleas Court
sentencing Manley to serve 16 months in prison after he was convicted by a jury of
Gross Sexual Imposition in violation of R.C. 2907.05(A)(1), a felony of the fourth
degree. On appeal, Manley argues that he received ineffective assistance of counsel,
that his conviction was not supported by sufficient evidence, and that his conviction
was against the manifest weight of the evidence.
Procedural History
{¶2} On December 17, 2015, Manley was indicted for one count of Gross
Sexual Imposition in violation of R.C. 2907.05(A)(1), a felony of the fourth degree.
Manley pled not guilty to the charge, and his case proceeded to a jury trial. Manley
was ultimately convicted and on January 10, 2017, he was sentenced to serve 16
months in prison. It is from this judgment that Manley appeals, asserting the
following assignments of error for our review.
Assignment of Error No. 1
The Defendant was deprived of his right to a fair trial due to the
ineffective assistance of counsel.
Assignment of Error No. 2
The conviction of the Defendant was against the manifest weight
of the evidence and was based upon insufficient evidence.
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{¶3} We elect to address the assignments of error out of the order in which
they were raised.
Second Assignment of Error
{¶4} In his second assignment of error, Manley argues that his conviction
was not supported by sufficient evidence, and that his conviction was against the
manifest weight of the evidence.
Relevant Authority
{¶5} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is
a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency
challenge, “ ‘the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’ ” State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
{¶6} By contrast, in reviewing whether a verdict was against the manifest
weight of the evidence, the appellate court sits as a “thirteenth juror” and examines
the conflicting testimony. Thompkins at 387. In doing so, this Court must review
the entire record, weigh the evidence and all of the reasonable inferences, consider
the credibility of witnesses and determine whether in resolving conflicts in the
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evidence, the factfinder “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” Id.
Furthermore, “[t]o reverse a judgment of a trial court on the weight of the evidence,
when the judgment results from a trial by jury, a unanimous concurrence of all three
judges on the court of appeals panel reviewing the case is required. Thompkins at
paragraph 4 of the syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).
{¶7} In this case, Manley was convicted of Gross Sexual Imposition in
violation of R.C. 2907.05(A)(1), which reads, “No person shall have sexual contact
with another, not the spouse of the offender * * * when * * * [t]he offender
purposely compels the other person * * * to submit by force or threat of force.”
Evidence Presented by the State
{¶8} At trial the State called seven witnesses including the victim, S.J., who
was 27 years old and the mother of four children. S.J. testified that she initially met
Manley at a local bar when S.J. was out with a female friend. S.J. testified that
Manley approached her at the bar, romantically, and S.J. lied to Manley at the time
and told him that the female S.J. was with was actually her girlfriend, which was
not the case.
{¶9} S.J. testified that she later came into contact with Manley again when
she was looking for a house to rent for herself, her boyfriend, and her four children.
She testified that she saw a home for rent on Cedar Street in Lima and called the
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number listed and the landlord happened to be Manley. The Cedar Street home was
too small for S.J., but Manley had another home for rent that was more suitable,
which S.J. decided to rent.
{¶10} S.J. testified that after moving into the residence, she eventually
became uncomfortable dealing with Manley, so she asked her boyfriend to deal with
him regarding the rent. S.J. indicated that Manley would occasionally send her text
messages, but she eventually changed her number.1 S.J. testified that after she
changed her number, Manley showed up unannounced at her place of employment.
S.J. testified that Manley made her uncomfortable, so she made an excuse to get him
to leave, telling Manley that cameras were there and she could get into trouble.
{¶11} As to the incident in question, S.J. testified that on October 19, 2015,
around 11 or 11:30 a.m. she was at her residence alone when Manley came in. S.J.
then testified as follows.
* * * My front door was open, but we had a screen door. He came
and said that he had to talk to me. He walked in the house. I was
sitting on the edge of my couch * * *[.] When he walked in I felt
uncomfortable, but he started telling me about what him and
Anthony, which was my boyfriend, had talked about the day
before about rent, which I already knew about. I told him I knew
about it so he would cut the story short. He ended up shutting the
door behind him and locking it. He walked over to me and stood
above me and kept saying, he said that I knew he was trying to get
on with me for a long time. He began rubbing himself through
his pants and then was trying to grab my hand to touch him. I
was trying to pull away and so then he pulled it out and put my
1
It is not clear to what extent, if any, S.J. changed her number specifically because of Manley.
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hand on his penis. He was trying to rub my hand on it. Then he
– then he took my breast out of my shirt. I started to scoot. I have
a sectional and I was trying to scoot this way because I had my
phone and my knife in my bedroom.
Q [Prosecutor]: You had what in your bedroom?
A [S.J.]: A knife and my phone. I scooted around my sectional.
I didn’t want to make a big deal and start running. So, I was
scooting and he continued to do it. Then when I got up he ended
up corralling me in the corner and ejaculated on my floor, in front
of me basically.
(Tr. at 95-96).
{¶12} S.J. would clarify that Manley held her hand on his penis, that she tried
to pull back, that she said no, and told him that she wanted him to go away. S.J.
also testified that she was too scared to run, because she was afraid it would make
it worse and she was scared of what Manley might do to her.
{¶13} S.J. testified that she “freaked out,” and Manley could tell. S.J.
testified that she kept saying to him that she had to go pick up her boyfriend’s cousin
so that Manley would leave. (Tr. at 104). S.J. testified that Manley pulled his pants
up and walked out the front door, and that she quickly followed him out in case he
changed his mind and wanted to come back inside. S.J. testified that she then did
go to her boyfriend’s cousin’s house, who lived nearby.
{¶14} S.J. told her boyfriend’s cousin what happened and got in touch with
her boyfriend, who was at work. Then S.J. went to her sister’s residence and told
her what happened. S.J. went back to her residence with her sister, at which time
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Manley returned to speak with S.J. Manley made an audio recording of that
conversation, which was introduced at trial. On the recording, Manley asks why
S.J. told Anthony that Manley had raped her. S.J. indicated that she never said
“rape” specifically, but she said that Manley took it too far. Manley admitted on the
audio recording that he might have taken it too far and he stated that he would not
come at her again like that.
{¶15} Later that same evening, S.J. called the police and the police
responded to her residence. S.J. was interviewed and the portion of her carpet where
Manley had purportedly ejaculated was removed and seized for evidence. DNA
was taken from S.J. and a swab was taken from a place on her neck where she said
Manley had kissed her during the encounter.
{¶16} The substance on the carpet that was collected turned out to be semen
and the State’s expert testified that it was consistent with Manley’s DNA. Further,
DNA consistent with Manley was found on S.J.’s neck.
{¶17} Along with S.J., the State called multiple officers to testify who were
involved in responding to the scene, collecting evidence, and investigating the
crime. The State presented expert testimony from BCI linking the DNA evidence
to Manley. The State also called S.J.’s sister, who testified as to what S.J. told her
on the date of the incident and S.J.’s demeanor at the time.
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Sufficiency of the Evidence
{¶18} Manley argues that the preceding evidence presented by the State at
trial was insufficient to convict him at trial of Gross Sexual Imposition. We
disagree.
{¶19} Viewing the evidence in the light most favorable to the State, as we
are directed, there is clearly testimony that Manley forced S.J.’s hand onto his penis
and that he held it there, constituting both force and sexual contact. There was also
clear testimony that S.J. was not, and never had been, the spouse of Manley. S.J.
testified to additional sexual contact, such as Manley grabbing her breast. She also
indicated that Manley “corralled” her in the corner. Based on this testimony, we
cannot find that insufficient evidence was presented to convict Manley of Gross
Sexual Imposition.
Defense Case
{¶20} Manley took the stand in his own defense. Manley contended that
from the first meeting he had with S.J. at a local bar he and S.J. had started a sexual
relationship. Manley contended that one night he went to S.J.’s work and she
performed oral sex on him and that they then had sexual intercourse the next day at
the empty house on Cedar Street that S.J. had originally looked at to rent. As to the
incident in question, Manley testified that S.J. had consensually performed oral sex
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on him, and that they were interrupted when someone knocked at the door. Manley
testified that he and S.J. then got into an argument, at which point he left.
{¶21} Manley testified that later on the date of the alleged incident, he
received a message from S.J.’s boyfriend accusing Manley of raping S.J. Manley
testified that he then went back to S.J.’s residence and had a conversation with her
and her sister, which he recorded, asking why S.J. had accused him of rape. Manley
testified that the reason why he said on the recording that he had taken it “too far”
was because he had yelled at S.J. after the consensual sexual encounter. Manley
adamantly denied forcing any type of sexual contact upon S.J., claiming that the two
had been engaged in an on-again, off-again affair since they had met.
{¶22} A friend of Manley’s also testified at trial. She testified that S.J. had
a reputation for being an untruthful person.
State’s Rebuttal
{¶23} The State recalled its detective on rebuttal and played a recording of
Manley speaking with S.J.’s boyfriend shortly after the purported incident. On the
tape, Manley repeatedly denies having any kind of current sexual relationship with
S.J.
Manifest Weight of the Evidence
{¶24} Manley argues that even if there was sufficient evidence to convict
him, his conviction was against the manifest weight of the evidence. We disagree.
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{¶25} The jury in this case was able to see and hear the testimony of both
S.J. and Manley and weigh their credibility. While Manley may argue that S.J. was
lying and that she was not credible, the jury elected to believe her. The jury also
elected not to believe Manley’s explanation regarding why he had said on his own
recording that he took things too far.
{¶26} Moreover, Manley may claim that his counsel failed to investigate
certain items that would help prove his innocence, but the jury heard Manley’s
testimony that a consensual relationship existed and the jury did not believe it.
Based on the record before us and the testimony presented we cannot find that the
jury clearly lost its way or created a manifest miscarriage of justice. Therefore,
Manley’s second assignment of error is overruled.
First Assignment of Error
{¶27} In his first assignment of error, Manley argues that he received
ineffective assistance of trial counsel. Specifically, Manley argues that his attorney
was unfamiliar with the rape shield law, that his attorney failed to “grasp [] hearsay
rules that are basic and fundamental[,]” that his attorney failed to properly impeach
a witness, and that trial counsel failed to adequately investigate certain evidence that
Manley feels would have shown that he was innocent.
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Standard of Review
{¶28} To establish an ineffective assistance of counsel claim, Manley must
show that his trial counsel’s performance was deficient and that counsel’s
performance prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,
¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to
make either showing defeats a claim of ineffective assistance of counsel. State v.
Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no
reason for a court deciding an ineffective assistance claim to approach the inquiry
in the same order or even to address both components of the inquiry if the defendant
makes an insufficient showing on one.”).
Analysis
{¶29} Manley first argues that his counsel was somehow deficient because
the prosecutor initially misstated the rape shield law. At the time of the
conversation regarding the rape shield law, the parties were discussing whether
specific instances of sexual activity between Manley and the victim could be
introduced into evidence. The prosecutor initially indicated that such testimony
would be improper; however, the prosecutor later admitted to misreading the rule.
Thus, any misstatement that such testimony was inadmissible was later corrected,
and defense counsel did, in fact, introduce testimony of a prior purported sexual
history between Manley and S.J. Therefore, Manley’s arguments are not supported,
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and not well-taken. Similarly, Manley’s claim that his trial counsel did not have a
“basic grasp” of hearsay rules is unsupported in his brief by any record citations to
illustrate how this alleged failure prejudiced him. We find no merit to this argument.
{¶30} Manley next argues that his trial counsel was ineffective for failing to
introduce extrinsic evidence of a prior inconsistent statement of the victim. He cites
no specific instance in the record to support his contention, just arguing generally
that trial counsel failed to properly introduce relevant prior inconsistent statements
that this Court has no knowledge of actually existing. Notably, at least one of S.J.’s
purportedly prior inconsistent statements was talked about at length by the parties
and the trial court ruled that the prior inconsistent statement was related to an
inconsequential issue and thus was not admissible at trial. Defense Counsel argued
repeatedly that it was an issue of consequence, thus we fail to see how counsel could
have been ineffective for making his arguments simply because he did not prevail,
particularly given that the extrinsic evidence would have been used to discount an
irrelevant issue.
{¶31} Manley also argues that his trial counsel was ineffective for failing to
acquire any text messages or phone records between S.J. and the defendant. First,
we have no knowledge as an appellate court that such records exist at all, let alone
contain anything favorable to Manley. In order to find ineffective assistance of
counsel, we would have to speculate that the records existed, that they were
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favorable to Manley and that they were so favorable that counsel was ineffective
for failing to present them. There are mechanisms to present newly discovered
evidence via post-conviction procedures. Inviting an appellate court to speculate
about hypothetical material is not proper grounds for reversal under ineffective
assistance of counsel.
{¶32} Finally, Manley makes a similar argument claiming that his counsel
was ineffective for failing to get a blanket tested for DNA. Manley claims that he
and S.J. had intercourse on a certain blanket in an otherwise empty house on Cedar
Street long before the incident in question. Manley apparently gave the blanket to
the police after this case was filed to be tested for DNA.
{¶33} The blanket at issue came up at trial, where Manley repeatedly said he
did not know why it was not tested because it would show that an ongoing sexual
relationship occurred. However, in the State’s rebuttal case, the detective
investigating the case indicated that when S.J. moved out of the residence Manley
owned, she left a number of items behind, which included various articles of
clothing, and Manley eventually received access to that residence. Thus the State
insinuated that Manley had access to clothes and (potentially) blankets from the
residence that may have contained S.J.’s DNA.
{¶34} Assessing Manley’s argument, he again invites this court to speculate
that the DNA on the blanket, if tested, would support his story and that there were
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not alternative explanations for it such as the one provided by the State at trial. We
decline to engage in such speculation. Given that there is no actual indication in the
record that evidence favorable to Manley truly existed, we can find neither that
counsel’s performance was deficient nor that any deficient performance was
prejudicial. Therefore, Manley’s first assignment of error is overruled.
Conclusion
{¶35} For the foregoing reasons Manley’s assignments of error are overruled
and the judgment of the Allen County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
/jlr
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State v. Manley
Combined Opinion