[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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