[Cite as State v. Kasler, 2012-Ohio-6073.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 11-CA-59
                                               :
                                               :
JOHNNIE KASLER                                 :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Fairfield County
                                                    Court of Common Pleas Case No.
                                                    11-CR-404

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             December 20, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

GREGG MARX                                          DAVID A. SAMS
Prosecuting Attorney                                P.O. Box 40
Fairfield County, Ohio                              West Jefferson, Ohio 43162

BY: JOSELYN S. KELLY
Assistant Prosecuting Attorney
239 W. Main Street, Suite 101
Lancaster, Ohio 43130
[Cite as State v. Kasler, 2012-Ohio-6073.]


Edwards, J.

        {¶1}     Appellant, Johnnie Kasler, appeals a judgment of the Fairfield County

Common Pleas Court convicting him of rape (R.C. 2907.02(A)(2)), attempted rape (R.C.

2923.02) and felonious assault (R.C. 2903.11). Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     During the afternoon of April 12, 2008, C.B. went to Mulligan’s, a bar in

Lancaster, to have a drink with a former boyfriend.      C.B. was living in Zanesville with

her boyfriend, who was a long-distance truck driver, but returned to Lancaster at times

to visit her grandchildren, hang out at Mulligan’s, and attend Alcoholics Anonymous

(AA) meetings. After a few hours, she took her friend to his home and returned to the

bar alone. C.B. ran into appellant when she returned to the bar. She knew appellant

from AA meetings and considered him to be a friend.

        {¶3}     C.B. spent three or four hours talking to appellant. She had between five

and ten drinks, but because she was an alcoholic, she had a high tolerance for alcohol.

She described her condition as “lit” but able to function.       Appellant had spent the

afternoon drinking 12 beers in the woods behind the Kroger’s grocery store before riding

his bicycle to Mulligan’s. He had five more beers while talking to C.B. A patron of the

bar observed C.B. fall to the floor several times while attempting to sit down. She also

thought C.B. and appellant were married because appellant was wearing a wedding ring

and he and C.B. were touching each other in the bar.

        {¶4}     Around midnight, C.B. decided to leave and go to a hotel because she did

not want to drive back to Zanesville. Appellant offered to let her sleep on his couch

rather than pay for a hotel. Appellant was having difficulties with his wife because he
Fairfield County App. Case No. 11-CA-59                                                 3


was not working, and was staying in a garage/warehouse structure which belonged to a

friend. C.B. accepted his offer but made it clear that nothing was going to happen

between them.

      {¶5}   C.B. noticed that the place where appellant was staying was filled with

junk and smelled like cats. She intended to sleep until she felt sober enough to drive

home. Appellant instructed her to leave her cell phone near the entrance, and she

complied. She complained of a headache, and appellant brought her a Tylenol and a

Mountain Dew. She sat down on a couch, placing her inhaler and keys on the floor

near her. She then went to sleep.

      {¶6}   C.B. awakened to find appellant, who was naked, on top of her. Her pants

had been removed. She tried to push appellant off, telling him she could not breathe

and was not going to do this. He got off and allowed her to use her inhaler to catch her

breath, but appellant told C.B. he was going to finish what he started. She did not

attempt to leave because she would have to pass appellant to exit the building, and

appellant was sitting near an axe. Appellant was angry and repeated that he planned to

finish what he started. When she repeatedly stated that she did not plan to have sex

with him, appellant hit her and her face began to bleed.

      {¶7}   After hitting her, appellant said to C.B., “Suck my dick.” Tr. 314. She

refused. Appellant began masturbating and told her to “play with herself.” Tr. 315.

C.B. pretended to masturbate. At appellant’s instruction, C.B. laid down and appellant

got on top of her, covering her face with his shirt. Appellant put his penis in her vagina

and began moving up and down. When he stopped, C.B. put her pants back on.
Fairfield County App. Case No. 11-CA-59                                                      4


Appellant instructed her to go in the restroom and urinate, and she complied. He also

told her not to look in the mirror.

       {¶8}   When C.B. returned from the restroom, appellant told her she could not

leave because he did not want to get in trouble. She assured him that she would not tell

anyone. Eventually appellant calmed down and allowed her to leave, walking her to her

car.

       {¶9}   After leaving, C.B. saw the condition of her lip in the car mirror and

realized she needed to go to the emergency room. She stopped at Mulligan’s to try to

learn appellant’s name. The manager noted that she had blood all over her face and

was “beat up.”

       {¶10} C.B. then went to the hospital, where she told the triage nurse that she

had been raped. C.B. agreed to go through a sexual assault exam. Dr. Mark Darnell

saw C.B. and noted that her lip was completely severed.            The inside, outside and

muscular layers of the lip were all split. He called in a plastic surgeon, something he

had done only a handful of times in nineteen years of practice. A plastic surgeon

stitched her lip. Her lips remains scarred and she has no feeling in a portion of her lip.

       {¶11} Detective James Neader of the Lancaster Police Department met with

C.B. after she was discharged from the hospital. He noted that she was quiet and

troubled and had a large cut to the upper right side of her lip.

       {¶12} Detective Neader learned from the owner of the property where the

incident occurred that appellant often stayed at the property.        Appellant voluntarily

appeared at the police station on April 14, 2008. He stated that he went to the garage

with a woman he met at AA. He told police that C.B. asked him to have sex. He said,
Fairfield County App. Case No. 11-CA-59                                                  5


“No problem, we can have sex.” Tr. 530. He was “sort of” bothered by this because he

is married, but “things happen when you’re drinking.” Tr. 530. C.B. kissed him in the

car, and he kissed her back.      He said that she tripped and fell when entering the

garage, which may be where she split her lip. According to appellant the garage is

dimly lit and there are a lot of cats in the building. He told police that they had vaginal

sex which was over in a few minutes. He said the sex was consensual, and he walked

her to her car afterwards.

       {¶13} On April 8, 2011, appellant was indicted on four counts of rape and one

count of attempt to commit rape. Appellant filed a motion to sever offenses. The

motion was granted. He proceeded to trial on one count of rape and one count of

attempted rape relating to C.B. On June 24, 2011, the trial court declared a mistrial

because the jury was unable to reach a verdict.

       {¶14} On September 2, 2011, appellant was indicted on one count of rape, one

count of attempted rape and one count of felonious assault related to C.B. The State

dismissed the corresponding counts in the previous indictment and proceeded to trial

under the new indictment. Following jury trial, he was convicted on all counts. He was

sentenced to nine years incarceration for rape, four years incarceration for attempted

rape, and four years incarceration for felonious assault, to be served consecutively. He

assigns the following errors on appeal:

       {¶15} “I. THE DEFENDANT-APPELLANT WAS RETRIED IN VIOLATION OF

OHIO’S SPEEDY TRIAL STATUTE AND OF HIS RIGHT TO A SPEEDY TRIAL IN

VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS.
Fairfield County App. Case No. 11-CA-59                            6


      {¶16} “II. THE DEFENDANT-APPELLANT WAS RETRIED AND CONVICTED

IN VIOLATION OF HIS RIGHT AGAINST DOUBLE JEOPARDY UNDER THE STATE

AND FEDERAL CONSTITUTIONS.

      {¶17} “III. THE DEFENDANT-APPELLANT WAS DENIED THE RIGHTS OF

CONFRONTATION AND TO PRESENT A DEFENSE UNDER THE STATE/FEDERAL

CONSTITUTIONS.

      {¶18} “IV. THE DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY

PROSECUTORIAL MISCONDUCT IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTIONS.

      {¶19} “V. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND CONTRARY TO DUE PROCESS IN VIOLATION OF THE STATE

AND FEDERAL CONSTITUTIONS.

      {¶20} “VI. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTIONS.

      {¶21} “VII. THE TRIAL COURT ERRED WHEN IMPOSING CONSECUTIVE

SENTENCES IN VIOLATION OF OHIO LAW AND THE STATE AND FEDERAL

CONSTITUTIONS.

      {¶22} “VIII. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY

CUMULATIVE ERROR IN VIOLATION OF OHIO LAW AND THE STATE AND

FEDERAL.”
Fairfield County App. Case No. 11-CA-59                                                    7


                                                 I

       {¶23} In his first assignment of error, appellant argues that the charge of

felonious assault should have been dismissed because his speedy trial rights were

violated.

       {¶24} The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to

these constitutional mandates, R.C. 2945.71 through R.C. 2945.73 prescribe specific

time requirements within which the State must bring an accused to trial. State v. Baker,

78 Ohio St.3d 108, 110, 1997-Ohio-229, 676 N.E.2d 883. R.C. 2945.71 provides, in

pertinent part:

       {¶25} “(C) A person against whom a charge of felony is pending:

       {¶26} “(2) Shall be brought to trial within two hundred seventy days after the

person's arrest....

       {¶27} “(E) For purposes of computing time under divisions (A), (B), (C)(2), and

(D) of this section, each day during which the accused is held in jail in lieu of bail on the

pending charge shall be counted as three days. This division does not apply for

purposes of computing time under division (C)(1) of this section.”

       {¶28} However, the time limit can be tolled, or extended, pursuant to R.C.

2945.72, which states, in relevant part:

       {¶29} “The time within which an accused must be brought to trial, * * * may be

extended only by the following:

       {¶30} “* * *(E) Any period of delay necessitated by reason of a .... motion,

proceeding, or action made or instituted by the accused.
Fairfield County App. Case No. 11-CA-59                                                 8


      {¶31} “(H) The period of any continuance granted on the accused's own motion,

and the period of any reasonable continuance granted other than upon the accused's

own motion.”

      {¶32} Speedy trial statutes are to be strictly construed against the State. State v.

Miller, 113 Ohio App.3d 606, 681 N.E.2d 970(1996). In reviewing a speedy trial claim,

an appellate court must count days chargeable to each side and determine whether the

case was tried within the statutory time limits. City of Oregon v. Kohne, 117 Ohio

App.3d 179, 690 N.E.2d 66 (1997).

      {¶33} Appellant argues that because the felonious assault charges arose out of

the same set of facts as the original rape and attempted rape charges, the time within

which he should be brought to trial began to run with the original indictment.

      {¶34} Subsequent charges made against an accused are subject to the same

speedy-trial constraints as the original charges, if the additional charges arose from the

same facts as the first indictment. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d

1025, 1027 (1989). However, the state is not subject to the speedy-trial timetable of the

initial indictment when additional criminal charges arise from facts different from the

original charges, or the state did not know of these facts at the time of the initial

indictment. Baker, supra, at syllabus.

      {¶35} The State argues that it was not aware of the permanent damage to C.B.’s

lip until 2011 when C.B. returned from Florida, where she had moved subsequent to the

incident, to testify at the first trial, and thus could not have charged appellant with

felonious assault in the original indictment.     Felonious assault is defined by R.C.

2903.11:
Fairfield County App. Case No. 11-CA-59                                                    9


         {¶36} “(A) No person shall knowingly do either of the following:

         {¶37} “(1) Cause serious physical harm to another or to another's unborn;

         {¶38} R.C. 2901.01 defines serious physical harm in pertinent part:

         {¶39} “(5) ‘Serious physical harm to persons’ means any of the following:

         {¶40} “(c) Any physical harm that involves some permanent incapacity, whether

partial or total, or that involves some temporary, substantial incapacity;

         {¶41} “(d) Any physical harm that involves some permanent disfigurement or

that involves some temporary, serious disfigurement;

         {¶42} “(e) Any physical harm that involves acute pain of such duration as to

result in substantial suffering or that involves any degree of prolonged or intractable

pain.”

         {¶43} The evidence presented at trial demonstrates that on the night of the rape,

appellant punched C.B. in the lip when she refused to consent to sex with him. C.B.

went to the hospital later that night to have her lip stitched. Dr. Mark Darnell saw C.B.

and noted that her lip was completely severed. The inside, outside and muscular layers

of the lip were all split. He called in a plastic surgeon, something he had done only a

handful of times in nineteen years of practice. A plastic surgeon stitched her lip. When

the police interviewed appellant several days after the incident, they showed him

pictures of C.B.’s lip and he expressed shock at the severity of the injury. The incident

occurred in April of 2008, but appellant was not indicted until three years later in April of

2011. Although the State may not have seen C.B. until she appeared for the first trial

because she had moved to Florida, the State had access to information concerning the

potential severity of the injury at the time it occurred and could have inquired of C.B.
Fairfield County App. Case No. 11-CA-59                                               10


about the lingering effects of the injury prior to her appearance at trial. We therefore

find that for speedy trial purposes, the felonious assault charge dates back to the date

of the original indictment.

        {¶44} However, in calculating the time within which a criminal defendant must be

brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by the

defendant in a previous case also apply in a subsequent case in which there are

different charges based on the same underlying facts and circumstances of the previous

case.    State v. Blackburn, 118 Ohio St.3d 163, 887 N.E.2d 319, 2008-Ohio-1823,

syllabus. We therefore must determine if the time was tolled in the proceedings under

the first indictment, and whether appellant was brought to trial within 270 days as

required by statute.

        {¶45} Appellant was served with a warrant on the indictment on April 11, 2011.

At that time, he was held in prison and so the triple count provision of R.C. 2945.71(E)

applies. On April 13, 2011, he filed a motion for a bill of particulars and a discovery

request. A demand for discovery or a bill of particulars is a tolling event pursuant to

R.C. 2945.72(E). State v. Brown, 98 Ohio St.3d 121, 781 N.E.2d 159, 2002-Ohio-7040,

syllabus. Because of the triple count provision, the two days that elapsed before the

clock was tolled count as six days.

        {¶46} On May 20, 2011, appellant filed a motion to sever the charges from the

rape charges involving three other victims. This motion is another tolling event. The

court granted the motion to sever the charges on June 17, 2011. At this point, appellant

was no longer held in jail on solely the charges in the instant case as the charges were

severed from the remaining charges. The triple count provision applies only when the
Fairfield County App. Case No. 11-CA-59                                                   11

defendant is being held in jail solely on the pending charge. State v. Sanchez, 110 Ohio

St.3d 274, 277, 853 N.E.2d 283, 2006-Ohio-4478. Thus, the triple-count provision does

not apply when a defendant is being held in custody pursuant to other charges. Id.

Therefore, once the instant charges in which C.B. was the victim were severed from the

charges involving the other three victims, appellant was no longer held in jail solely on

the instant charges and the triple count provision no longer applied.

       {¶47} The speedy trial clock began to run again on June 17, 2011. Four days

elapsed between the judgment granting the motion to sever and the start of appellant’s

first trial. At this point, a total of 10 days had elapsed of the 270 days in which the State

must bring appellant to trial.

       {¶48} Appellant’s first trial resulted in a mistrial on June 24, 2011. Ordinarily, the

interval between the declaration of a mistrial and a retrial does not count toward a

defendant’s statutory speedy trial time, as long as the defendant is retried within a

reasonable time. State v. Morris, 2nd Dist. No. 19283, 2003-Ohio-1049, ¶17, citing

State v. Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982). The holding in Fanning is in

accord with the view that the statutory speedy trial requirements apply only until trial on

the charges involved is commenced, and when that trial terminates in a mistrial the

second trial is merely a continuation of the same trial proceeding. Id. However, only 82

days passed between the declaration of a mistrial on June 24, 2011 and the start of

appellant’s new trial on September 13, 2011, leaving only 92 days elapsed of the 270

days within which appellant had to be brought to trial even if the time following the

mistrial is counted.

       {¶49} The first assignment of error is overruled.
Fairfield County App. Case No. 11-CA-59                                                    12


                                                 II

        {¶50} In his second assignment of error, appellant argues that his retrial was

barred by double jeopardy because the trial court prematurely discharged the jury in the

first trial. He also argues the trial court erred in failing to charge the jury according to

State v. Howard, 42 Ohio St.3d 18 (1989), before finding the jury to be deadlocked.

        {¶51} When a judge discharges a jury on the grounds that the jury cannot reach

a verdict, the Double Jeopardy Clause does not bar a new trial of the defendant.

Renico v. Lett, 130 S.C.t 1855, 176 L.E.2d 678 (2010), citing United States v. Perez, 22

U.S. 579, 6 L.Ed. 165 (1824). In Renico, the United States Supreme Court provided

guidance for reviewing a decision of a trial court to declare a mistrial based on a hung

jury:

        {¶52} “In particular, ‘[t]he trial judge's decision to declare a mistrial when he

considers the jury deadlocked is ... accorded great deference by a reviewing court.’

Washington, 434 U.S., at 510, 98 S.Ct. 824. A ‘mistrial premised upon the trial judge's

belief that the jury is unable to reach a verdict [has been] long considered the classic

basis for a proper mistrial.’ Id., at 509, 98 S.Ct. 824; see also Downum v. United States,

372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) (deadlocked jury is the

‘classic example’ of when the State may try the same defendant twice).

        {¶53} “The reasons for ‘allowing the trial judge to exercise broad discretion’ are

‘especially compelling’ in cases involving a potentially deadlocked jury. Washington, 434

U.S., at 509, 98 S.Ct. 824. There, the justification for deference is that ‘the trial court is

in the best position to assess all the factors which must be considered in making a

necessarily discretionary determination whether the jury will be able to reach a just
Fairfield County App. Case No. 11-CA-59                                                         13

verdict if it continues to deliberate.’ Id., at 510, n. 28, 98 S.Ct. 824. In the absence of

such deference, trial judges might otherwise ‘employ coercive means to break the

apparent deadlock,’ thereby creating a ‘significant risk that a verdict may result from

pressures inherent in the situation rather than the considered judgment of all the jurors.’

Id., at 510, 509, 98 S.Ct. 824.

         {¶54} “This is not to say that we grant absolute deference to trial judges in this

context. Perez itself noted that the judge's exercise of discretion must be ‘sound,’ 9

Wheat, at 580, 6 L.Ed. 165, and we have made clear that ‘[i]f the record reveals that the

trial judge has failed to exercise the “sound discretion’” entrusted to him, the reason for

such deference by an appellate court disappears.’ Washington, 434 U.S., at 510, n. 28,

98 S.Ct. 824. Thus ‘if the trial judge acts for reasons completely unrelated to the trial

problem which purports to be the basis for the mistrial ruling, close appellate scrutiny is

appropriate.’ Ibid. Similarly, ‘if a trial judge acts irrationally or irresponsibly, ... his action

cannot be condoned.’ Id., at 514, 98 S.Ct. 824 (citing United States v. Jorn, 400 U.S.

470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), and Somerville, supra, at 469, 93 S.Ct.

1066).

         {¶55} “We have expressly declined to require the ‘mechanical application’ of any

‘rigid formula’ when trial judges decide whether jury deadlock warrants a mistrial. Wade

v. Hunter, 336 U.S. 684, 691, 690, 69 S.Ct. 834, 93 L.Ed. 974 (1949). We have also

explicitly held that a trial judge declaring a mistrial is not required to make explicit

findings of ‘manifest necessity’ nor to ‘articulate on the record all the factors which

informed the deliberate exercise of his discretion.’ Washington, supra, at 517, 98 S.Ct.

824. And we have never required a trial judge, before declaring a mistrial based on jury
Fairfield County App. Case No. 11-CA-59                                                14


deadlock, to force the jury to deliberate for a minimum period of time, to question the

jurors individually, to consult with (or obtain the consent of) either the prosecutor or

defense counsel, to issue a supplemental jury instruction, or to consider any other

means of breaking the impasse. In 1981, then-Justice Rehnquist noted that this Court

had never ‘overturned a trial court's declaration of a mistrial after a jury was unable to

reach a verdict on the ground that the “manifest necessity” standard had not been met.’

Winston v. Moore, 452 U.S. 944, 947, 101 S.Ct. 3092, 69 L.Ed.2d 960 (opinion

dissenting from denial of certiorari). The same remains true today, nearly 30 years

later.” Id. at 1863-64.

       {¶56} In the instant case, the judgment entry declaring a mistrial notes that the

jury deliberated for 8.5 hours. After two days of testimony, the jury began deliberations

around lunch time on June 24, 2011. The jury asked if they could see a sweatshirt

which had been admitted into evidence, which the court allowed them to view. Tr. 545.

The jury returned a second time and asked if they could see a typed transcript of the

interview with appellant. The court denied this request. Tr. 548-549. The jury returned

a third time with two questions. The first question was whether they could come back

the next day if they did not reach a verdict, and the court answered that yes, they could

come back the next day. Tr. 549. The second question was how long they could stay

that night. The court responded that they could stay as long as they wanted to stay that

night, and could return as early as 8:00 the next morning. Tr. 549-550. The jury

returned later and indicated that they wanted to resume deliberations at 9:00 the next

morning.
Fairfield County App. Case No. 11-CA-59                                                   15


        {¶57} On June 25, 2011, the jury informed the court that they were deadlocked.

The court placed what transpired in response to this information on the record as

follows:

        {¶58} “The 12 jurors had posed a question to the Court approximately 20

minutes ago, 25 minutes ago.

        {¶59} “And the question is: We cannot agree on a verdict. We are not getting

any closer.

        {¶60} “In response to that question, the Court prepared a document which

includes a question, and it reads - - to return to the jurors. And the Court did have its

Bailiff, Mr. Rispress, present this to the jury foreperson. And it was folded when it was

presented. It was folded when it was returned to the Court.

        {¶61} “It states - - after giving the case heading, it says: It is customary for the

Court to inquire if there’s a possibility of reaching an agreement within a reasonable

time.      The Court will, therefore, submit this question to the foreperson with the

instruction that the answer be yes or no. Do not disclose any other information or

indicate the status of your deliberations.

        {¶62} “And the question is: Is there a possibility that after an additional period of

time today, you may reach an agreement?

        {¶63} “Then there’s the word ‘yes’ with a line and then ‘no’ with a line.

        {¶64} “There’s a check in blue ink on the ‘no’ line next to the ‘no.’ And it is

signed by Terry A. Hahn, Foreperson.

        {¶65} “So since we’re here in court, I know you signed this, Mr. Hahn, but I’ll just

ask again. Is there - - without disclosing the status of any deliberations or anything or
Fairfield County App. Case No. 11-CA-59                                                 16


saying anything else, is there a possibility that after an additional period of time today,

you, meaning the jury, may reach an agreement?

       {¶66} “THE FOREPERSON: No.” Tr. 553-554.

       {¶67} Appellant argues that by using the word “today,” the court did not

determine if it was truly impossible for the jury to reach a verdict, and only determined

that they could not reach a verdict that day. However, the jury had indicated earlier that

they were not getting any closer to reaching a verdict. Appellant did not object to the

declaration of the mistrial, nor did he object to the manner in which the trial court

responded to the jury’s inquiry regarding their inability to reach a decision. We cannot

find that the trial court abused its discretion in finding the jury deadlocked.

       {¶68} Appellant also argues that the court erred in failing to give the jury a

supplemental instruction. In Howard, supra, the Ohio Supreme Court approved the

following supplemental instruction to be given a jury that appears to be deadlocked

before they resume deliberations:

       {¶69} The principal mode, provided by our Constitution and laws, for deciding

questions of fact in criminal cases, is by jury verdict. In a large proportion of cases,

absolute certainty cannot be attained or expected. Although the verdict must reflect the

verdict of each individual juror and not mere acquiescence in the conclusion of your

fellows, each question submitted to you should be examined with proper regard and

deference to the opinions of others. You should consider it desirable that the case be

decided. You are selected in the same manner, and from the same source, as any

future jury would be. There is no reason to believe the case will ever be submitted to a

jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to
Fairfield County App. Case No. 11-CA-59                                                  17


believe that more or clearer evidence will be produced by either side. It is your duty to

decide the case, if you can conscientiously do so. You should listen to one another's

arguments with a disposition to be persuaded. Do not hesitate to reexamine your views

and change your position if you are convinced it is erroneous. If there is disagreement,

all jurors should reexamine their positions, given that a unanimous verdict has not been

reached. Jurors for acquittal should consider whether their doubt is reasonable,

considering that it is not shared by others, equally honest, who have heard the same

evidence, with the same desire to arrive at the truth, and under the same oath.

Likewise, jurors for conviction should ask themselves whether they might not

reasonably doubt the correctness of a judgment not concurred in by all other jurors.” 42

Ohio St.3d 18, at syllabus 2.

       {¶70} Appellant failed to object to the manner in which the trial court instructed

the jury, failed to request a Howard instruction, and failed to object to the declaration of

the mistrial upon the court’s determination that the jury was deadlocked.         Because

appellant failed to object to the manner in which the court instructed the jury and failed

to request a Howard instruction, we must find plain error in order to reverse. In order to

prevail under a plain error analysis, appellant bears the burden of demonstrating that

the outcome of the trial clearly would have been different but for the error. State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error “is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Id. at paragraph three of the syllabus.    We cannot find on the

state of this record that had the jury been read the Howard instruction and sent back to

deliberate, they would have acquitted appellant.
Fairfield County App. Case No. 11-CA-59                                                 18


       {¶71} The second assignment of error is overruled.

                                                III

       {¶72} In his third assignment of error, appellant argues that he was denied the

right to cross-examine Detective Neader, Dr. Darnell and the nurse who conducted the

exam at the hospital. He also argues that the court erred in admitting the medical

evidence through the testimony of the nurse when such records were prepared by

others who did not testify.

       {¶73} The trial court may, consistent with the Confrontation Clause, impose

reasonable limits on cross-examination. See, e.g., Delaware v. Fensterer , 474 U.S. 15,

20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 19 (1985); Davis v. Alaska, 415 U.S. 308, 94

S.Ct. 1105, 39 L.Ed.2d 347 (1974).        Furthermore, the admission or exclusion of

evidence rests within the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d

173, 510 N.E.2d 343 (1987). A reviewing court must not disturb a trial court's evidentiary

ruling unless the ruling is found to be an abuse of discretion. Id. An abuse of discretion

connotes more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980).

       {¶74} Appellant first argues that the court erred in sustaining the State’s

objection to his question on cross-examination of Detective Neader regarding whether

appellant’s hands, which had no injuries, would have had some injury if appellant

punched the victim in the mouth hard enough to split her lip. Although the court initially

sustained his objection, when the question was rephrased, Detective Neader did

answer the question without objection:
Fairfield County App. Case No. 11-CA-59                                                    19


       {¶75} “Q. And if he had used his fist, his right fist, to strike C.B. with such force

that it would split her lip open, would you expect to see something on his hands?

       {¶76} “MS. SCHIFFEL: Objection. Lack of foundation.

       {¶77} “THE COURT: Sustained.

       {¶78} “Q. Were you surprised when you saw nothing on his hands?

       {¶79} “A. A little surprised, yes.

       {¶80} “Q. Why were you surprised?

       {¶81} “A. Because sometimes, again, when you have a blunt force like that,

sometimes you may expect to see an injury. But it doesn’t always happen.” Tr. 620.

       {¶82} Therefore, appellant has not demonstrated that he was denied the right to

cross-examine the detective on this issue.

       {¶83} Next appellant argues he was denied the opportunity to cross examine Dr.

Darnell concerning whether the type of injury C.B. suffered to her lip, without dental

damage, was consistent with a fall as opposed to a punch.

       {¶84} Specifically, the question posed to Dr. Darnell was whether the injury to

her lip was “more of a tear as opposed to being caused by blunt trauma.” Tr. 679. At

the time, counsel for appellant was questioning the doctor from a document prepared by

Dr. Lichten, the plastic surgeon. Counsel asked Dr. Darnell what the phrase “through

and through” laceration meant on Dr. Lichten’s report. He explained that a through and

through laceration is if you cut the lip all the way up with a pair of scissors. Tr. 679.

Counsel then asked, “So more of a tear as opposed to being caused by blunt force

trauma?” Tr. 679. No foundation had been laid as to whether Dr. Darnell was qualified

to testify as to the cause of the specific injury, and he had not testified on direct that the
Fairfield County App. Case No. 11-CA-59                                                 20


injury was caused by blunt force trauma as opposed to a fall. He testified on direct

examination that a significant amount of force would be required to split the lip

completely, but expressed no opinion as to what kind of force may or may not cause

this type of split. The record does not reflect that Dr. Darnell was qualified to express

an opinion on what kind of force may or may not cause an injury of this type, and the

trial court did not err in sustaining an objection to this question.

       {¶85} Appellant next argues that the court erred in sustaining the State’s

objection to his questioning of Rhonda Wells, the nurse who conducted the sexual

assault examination at the hospital. Appellant asked Wells, “Other than the lip injury,

did you have any physical findings, any evidence whatsoever to indicate that this was a

sexual assault as opposed to consensual sex?” Tr. 739. The State objected on the

basis that the question embraced the ultimate issue, and the objection was sustained.

       {¶86} Wells had previously testified on direct examination that it is not

necessarily common to find evidence of rape in a sexual assault examination, but she

would find evidence of intercourse. Tr. 696. She also testified that other than the facial

injury, she did not find any other signs of assault or any signs of injury.      Tr. 705.

Therefore, appellant cannot demonstrate any prejudice from the court sustaining the

objection to his testimony because the information he sought to elicit was already in

evidence from Wells’ testimony on direct examination.

       {¶87} Finally, appellant argues that the court erred in admitting into evidence the

examination records prepared by Wells.          He argues these notes are testimonial in

nature and prepared by people who did not testify in violation of his right to confront

witnesses. Appellant stipulated to the admission of this exhibit as a business record.
Fairfield County App. Case No. 11-CA-59                                                     21


Tr. 681. Appellant is therefore bound as to all matters of fact and law concerned in the

stipulation. State v. Large, 5th Dist. No. 2006CA00359, 2007-Ohio-4685, ¶55, citing

State v. Folk, 74 Ohio App.3d 468, 471, 599 N.E.2d 334 (1991). “A party will not be

permitted to take advantage of an error which he himself invited or induced the court to

make.” Id., quoting Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145 (1943), paragraph

one of the syllabus. Being invited error, appellant cannot now complain seeking to undo

that error and any prejudice it may have caused him. Id., citing State v. Kniep, 87 Ohio

App.3d 681, 686, 622 N.E.2d 1138 (1993).

       {¶88} The third assignment of error is overruled.

                                                  IV

       {¶89} In his fourth assignment of error, appellant argues that the prosecutor

committed misconduct in questioning of witnesses and in opening statement.

       {¶90} The standard of review for prosecutorial misconduct is whether the

comments and questions by the prosecution were improper and, if so, whether they

prejudiced appellant's substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739

N.E.2d 749 (2001). Prosecutorial misconduct will not provide a basis for reversal unless

the misconduct can be said to have deprived the appellant of a fair trial based on the

entire record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “The

touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ”

State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, quoting Smith

v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

       {¶91} Appellant first argues that the prosecutor committed misconduct in

questioning the defense witness, Tawny Mowery.                 On cross-examination, the
Fairfield County App. Case No. 11-CA-59                                                22


prosecutor asked Ms. Mowery why, when the prosecutor talked to her the week before,

Mowery told the prosecutor that she did not remember anything from the night in

question. Tr. 765.    Mowery stated that she did not remember saying that to the

prosecutor. Id. Appellant did not object.

      {¶92} Evid. R. 613(A) provides that in examining a witness concerning a prior

statement, whether written or not, the statement need not be shown nor its contents

disclosed to the witness at that time, but on request shall be shown or disclosed to

opposing counsel. Counsel for appellant did not pursue the issue of the prior statement

made by the witness, and when Mowery denied making the statement, the prosecutor

moved on.    Nothing in the record suggests that the prosecutor asked the question

without a good faith belief that Mowery had in fact made the statement. Further, the trial

court instructed the jury at the end of the trial that the evidence does not include any

statement of counsel made during the trial. The prosecutor did not commit misconduct

in asking Ms. Mowery this question.

      {¶93} Appellant next argues that in questioning the victim, the prosecutor

attempted to downplay the amount of alcohol consumed by the victim, “when it was

obvious she was intoxicated after consuming more strong drinks than she could

remember over a roughly a 9-hour period.” He argues that it is not reasonable to

believe that C.B., “who could not remember over less than 3 months whether her pants

were on or off when she awoke to being raped, would be able to accurately recall to the

exact number the number of drinks she consumed on a night three years earlier.” Brief

of appellant, page 14. The prosecutor did not commit misconduct in questioning the

victim as to how many drinks she remembered consuming and her personal feeling
Fairfield County App. Case No. 11-CA-59                                                  23


about her level of intoxication.     The determination as to whether she was able to

remember accurately how much she had to drink or whether she was more intoxicated

than she claimed to be is a credibility determination within the province of the jury.

       {¶94} Appellant next argues that in opening statement, the prosecutor attempted

to insinuate that the lack of blood at the crime scene was due to tampering by appellant,

and also improperly stated that appellant confessed to punching the victim when

appellant said he might have accidently hit her.

       {¶95} The prosecutor stated as follows:

       {¶96} “Detective Neader will tell you, that’s when he began his investigation.

Actually, it began before that, but this is when the action started coming together. He

was able to make contact with the property owner of the garage. He also was able to

put together a suspect. Then he went out and he examined the garage. However,

when he examined the garage, it was much, much later, the evidence will show, than

when C.B. left.

       {¶97} “Detective Neader will tell you he collected evidence from the garage of

what he believed was going to be evidence of the crime - - a comforter, a bed sheet and

a washcloth. And he will tell you that that evidence he collected much, much later

revealed no useful leads or evidence in this case.

       {¶98} “Finally, ladies and gentlemen, on April 14th, 2008, Johnnie Kasler came

to the Police Department and made a recorded interview with Detective Neader. And

you will listen to that interview.
Fairfield County App. Case No. 11-CA-59                                                 24


      {¶99} “In that interview, he admits that he had sex with Carolyn, but he

maintains that it was consensual. He also admits that he may have punched her. He

may have punched her.” Tr. 259-260.

      {¶100} The evidence did in fact show that the evidence was collected at the crime

scene later and that the detective visited the crime scene later. The prosecutor did not

make any comments concerning tampering with the crime scene.                Further, while

appellant did not use the word “punch” in his statement to police, he did tell police that

he might have hit her. The prosecutor’s use of the word “punch” instead of “hit” is not

such a distortion of appellant’s statement as to constitute misconduct, as it is clear from

the context of appellant’s statement to the police that he understood the police were

talking about hitting her in the mouth, causing the injury appellant observed on the

photograph shown to him by police.

      {¶101} Finally, appellant argues that the prosecutor committed misconduct in

eliciting testimony from nurse Rhonda Wells which she later contradicted on cross-

examination. On direct examination, the prosecutor asked Wells to review an exhibit,

which was a medical record prepared by another person. When asked if the history as

recounted in that exhibit was consistent with what C.B. told her at the emergency room,

she responded that it was.      On cross-examination, counsel pointed out the same

section and asked where in the records prepared by the witness this information was

located. Wells responded that she did not document that. When counsel asked her if

Wells would have documented that if C.B. had told her, she responded, “Correct.” Any

inconsistency in Wells testimony goes to the weight and credibility of her testimony.
Fairfield County App. Case No. 11-CA-59                                              25


The inconsistency in her testimony is not attributable to any misconduct by the

prosecutor.

      {¶102} The fourth assignment of error is overruled.

                                               V

      {¶103} In his fifth assignment of error, appellant argues that the judgment is

against the manifest weight of the evidence.

      {¶104} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387,

1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1983).

      {¶105} Appellant was convicted of rape as defined by R.C. 2907.02(A)(2), which

provides, “No person shall engage in sexual conduct with another when the offender

purposely compels the other person to submit by force or threat of force.” Appellant

was also convicted of attempted rape. R.C. 2923.02(A) defines attempt, “No person,

purposely or knowingly, and when purpose or knowledge is sufficient culpability for the

commission of an offense, shall engage in conduct that, if successful, would constitute

or result in the offense.”    Finally, appellant was convicted of felonious assault, in

violation of R.C. 2903.11(A)(1):

      {¶106} “(A) No person shall knowingly do either of the following:
Fairfield County App. Case No. 11-CA-59                                                    26


       {¶107} “(1) Cause serious physical harm to another or to another’s unborn[.]”

       {¶108} C.B.’s testimony, if believed by the jury, was sufficient to convict appellant

of all three offenses. She testified that appellant hit her, then told her to lay down. He

covered her face with a shirt and engaged in vaginal intercourse with her against her

consent. This is sufficient evidence to convict him of rape. She testified that after

hitting her in the mouth, he instructed her, “Suck my dick.” This is sufficient evidence to

convict appellant of attempted rape. She also testified that he punched her in the

mouth.   The medical evidence demonstrated that he split her lip completely open,

requiring closure by a plastic surgeon. C.B., as of the time of trial, still had a scar on her

lip and no feeling in a portion of her lip. This evidence was sufficient, if believed by a

jury, to convict appellant of felonious assault.

       {¶109} Appellant argues that the victim cannot be believed because she was

drunk on the night in question and could not remember what occurred. The only direct

evidence as to what occurred between the parties at the time of the rape was C.B.’s

testimony and appellant’s statement to police that they did have sex, but it was

consensual. The jury, who is in a better position than this court to judge the credibility of

witnesses, did not believe appellant’s statement. Further, appellant also had consumed

a great deal of alcohol on the night in question.

       {¶110} We cannot find that the jury lost its way in believing C.B.’s testimony. The

judgment is not against the manifest weight of the evidence. The fifth assignment of

error is overruled.
Fairfield County App. Case No. 11-CA-59                                                     27


                                                  VI

       {¶111} Appellant argues that counsel was ineffective for failing to move to dismiss

the charges on the grounds of double jeopardy for the reasons argued in the second

assignment of error.

       {¶112} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the

result of the proceedings would have been different. 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). In other words, appellant must show that counsel's conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

       {¶113} Based on our discussion of the second assignment of error, appellant

cannot demonstrate that had counsel moved to dismiss the charges on double jeopardy

grounds based on the trial court’s decision to grant a mistrial in the first trial, the charges

would have been dismissed. The sixth assignment of error is overruled.

                                                 VII

       {¶114} In his seventh assignment of error, appellant argues that the court erred in

sentencing him consecutively because the offenses were allied offenses of similar

import.

       {¶115} R.C. 2941.25 reads as follows:
Fairfield County App. Case No. 11-CA-59                                              28


       {¶116} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

       {¶117} “(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

       {¶118} In State v. Rance, 85 Ohio St.3d 632, 636, 1999–Ohio–291, 710 N.E.2d

699, the Ohio Supreme Court held that offenses are of similar import if the offenses

“correspond to such a degree that the commission of one crime will result in the

commission of the other.” Id. The Rance court further held that courts should compare

the statutory elements in the abstract. Id.

       {¶119} In 2008, the Ohio Supreme Court instructed as follows in State v.

Cabrales, 118 Ohio St.3d 54, 2008–Ohio–1625, 886 N.E.2d 181, paragraph one of the

syllabus:

       {¶120} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case, but are not required to find an

exact alignment of the elements. Instead, if, in comparing the elements of the offenses

in the abstract, the offenses are so similar that the commission of one offense will

necessarily result in the commission of the other, then the offenses are allied offenses

of similar import.”
Fairfield County App. Case No. 11-CA-59                                                  29

         {¶121} According to Cabrales, if the sentencing court has initially determined that

two crimes are allied offenses of similar import, the court then proceeds to the second

part of the two-tiered test and determines whether the two crimes were committed

separately or with a separate animus. Id. at 57, citing State v. Blankenship, 38 Ohio

St.3d 116, 117, 526 N.E.2d 816 (1988).

         {¶122} However, on December 29, 2010, the Ohio Supreme Court decided State

v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, which specifically

overruled the 1999 Rance decision. The Court held: “When determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the

conduct of the accused must be considered.” Id., at the syllabus.

         {¶123} In the instant case, the facts establish that the offenses of felonious

assault, attempted rape and rape were separate acts.             Appellant first committed

felonious assault by punching C.B., splitting open her lip. He then demanded oral sex

from C.B. After C.B. refused to provide oral sex, appellant put his penis in her vagina

against her will.    The trial court did not err in finding that each of these acts was

separate from the others, and the offenses were therefore not allied offenses of similar

import.

         {¶124} The seventh assignment of error is overruled.

                                                VIII

         {¶125} In his final assignment of error, appellant argues that he was denied a fair

trial by the cumulative effect of the errors raised in assignments of error one through

seven.
Fairfield County App. Case No. 11-CA-59                                                    30


       {¶126} Although violations of the Rules of Evidence during trial may singularly not

rise to the level of prejudicial error, a conviction will be reversed where the cumulative

effect of the errors deprived the defendant of the constitutional right to a fair trial. State

v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), ¶ 2 of the syllabus. The

DeMarco case involved numerous violations of the hearsay rule, which the Supreme

Court found cumulatively, resulted in prejudicial error. Id. at 196–197, 509 N.E.2d 1256.

However, the doctrine is not applicable to cases where the court has not found multiple

instances of harmless error. State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623,

1995–Ohio–168.

       {¶127} In the instant case, we have not found multiple instances of harmless

error. The doctrine of cumulative error therefore does not apply. The eighth assignment

of error is overruled.
Fairfield County App. Case No. 11-CA-59                                             31


      {¶128} The judgment of the Fairfield County Common Pleas Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                ______________________________



                                                ______________________________



                                                ______________________________

                                                            JUDGES




JAE/r1105
[Cite as State v. Kasler, 2012-Ohio-6073.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JOHNNIE KASLER                                    :
                                                  :
                        Defendant-Appellant       :       CASE NO. 11-CA-59




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Fairfield County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
