[Cite as State v. Leach, 2018-Ohio-3554.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 18 CA 00004
JONATHAN LEACH

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 17 CR 00574


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 5, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

WILLIAM C. HAYES                               KEVIN J. GALL
PROSECUTING ATTORNEY                           BURKETT & SANDERSON, INC.
PAULA M. SAWYERS                               73 North Sixth Street
ASSISTANT PROSECUTOR                           Newark, Ohio 43055
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 18 CA 00004                                                     2

Wise, John, P. J.

        {¶1}    Defendant-Appellant Jonathan Leach appeals his convictions on six counts

of gross sexual imposition entered in the Licking County Court of Common Pleas following

a jury trial.

        {¶2}    Plaintiff-Appellee is the State of Ohio.

                             STATEMENT OF THE FACTS AND CASE

        {¶3}    The relevant facts and procedural history as set forth in Appellant’s brief

and accepted by the State of Ohio are as follows.

        {¶4}    Appellant Jonathan Leach met his future wife, Breanna, in September,

2009. The two moved in together in March, 2010, and were married in May, 2013. (T. at

203, 217). Prior to meeting Appellant, Breanna had three children from a previous

marriage, all daughters. (T. at 192). During the marriage, Appellant and Breanna had one

child of their own, a boy.

        {¶5}    Breanna lived in a three-bedroom townhouse. (T. at 205). After Appellant

moved in, all three girls slept in one bedroom. (T. at 209). Appellant also had children

from a previous marriage, a son and a daughter, who would also stay at the apartment

on weekends when it was his turn to have them. (T. at 210, 747-48).

        {¶6}    On September 15, 2016, Appellant Jonathan Leach was indicted on twelve

(12) counts of Gross Sexual Imposition, all involving his step-daughters. (See Case No.

2016-CR-00492). Of these counts, five counts alleged violations of R.C. §2907.05(A)(1),

felonies of the fourth degree, five counts alleged violations of R.C. §2907.05(A)(5), also

felonies of the fourth degree, and two counts alleged violations of R.C. §2907.05(A)(4),

felonies of the third degree.
Licking County, Case No. 18 CA 00004                                                       3


       {¶7}   On March 10, 2017, Case No. 2016-CR-00492 was dismissed.

       {¶8}   On June 22, 2017, a new indictment was filed in the Licking County

Common Pleas Court, in Case No. 2017-CR-00574. This new indictment contained

twenty-four (24) felony charges: three counts of gross sexual imposition, in violation of

R.C. §2907.05(A)(4), felonies of the third degree; nine (9) counts of gross sexual

imposition, in violation of R.C. §2907.05(A)(1), felonies of the fourth degree; nine (9)

counts of gross sexual imposition, in violation of R.C. §2905.07(A)(5), felonies of the

fourth degree, and three (3) counts of menacing by stalking, in violation of R.C.

§2903.211(A)(1 )(B)(2)(d), felonies of the fourth degree.

       {¶9}   On September 21, 2017, the Delaware County Prosecutor was appointed

as special prosecutor in this matter.

       {¶10} On October 11, 2017, the trial court judge ordered that all discovery and

court filings in case no. 16-CR-00492 be transferred to case no. 17-CR-00574.

       {¶11} On November 6, 2017, this matter proceeded to a Jury Trial. At trial, the jury

heard the following testimony:

                                          DAUGHTER 1

       {¶12} “Daughter 1”, who was sixteen (16) years old at the time of trial, testified

that in the early morning hours of August 19, 2016, she woke up to the Appellant's hand

touching her thigh. (T. at 424). She testified that she told him to stop and he complied. (T.

at 425). Her sister, “Daughter 2”, was awake at the time and she discussed the incident

with her and then went back to sleep. (T. at 428).

       {¶13} The next morning, she told her mother what had happened. (T. at 429).

“Daughter 1” then went to school and called her biological father to pick her up. (T. at
Licking County, Case No. 18 CA 00004                                                         4


430). “Daughter 1” informed her father of the alleged incident and she was taken to the

police station where she revealed further allegations of similar conduct against Appellant

spanning the previous four years. (T. at 431).

        {¶14} “Daughter 1” further testified that the very first incident occurred when she

was eleven (11) years old. (T. at 433). In that incident, she alleged that Appellant came

into her bedroom and touched her breast over her clothes. (Id.) The second incident

occurred about one year later when she was twelve years old. (T. at 440). During the

second incident, Appellant again allegedly touched her breast over her clothes. (T. at

442). She testified that these were the only incidents that occurred in which she was the

alleged victim. (T. at 448). However, she did testify that two summers after the second

incident with her, she woke up and saw Appellant touching “Daughter 2’s” breast. (T. at

444).

                                            DAUGHTER 2

        {¶15} “Daughter 2”, who was fifteen (15) years old at the time of trial, testified that

on August 19, 2016, she awoke to the sight of a flashlight scanning her and her sisters'

bedroom. (T. at 489). She observed Appellant in the room wearing a t-shirt and boxer

shorts. (Id.) She testified that she witnessed Appellant touch “Daughter 1’s” "lower

regions," and move her shorts. She then heard “Daughter 1” tell Appellant to "go away"

twice, before he complied. (T. at 490). “Daughter 2” testified that Appellant was touching

his own penis with his other hand while he was touching “Daughter 1”. (T. at 491). After

Appellant left the room, “Daughter 2” testified that she waited ten minutes and then woke

“Daughter 1” up and told her what she had just witnessed. (Id.)

        {¶16} “Daughter 2” testified that she was the victim of two alleged sexual assaults

in which Appellant was the perpetrator. (T. at 496). She described the first incident
Licking County, Case No. 18 CA 00004                                                       5

occurring when she was twelve years old, or sometime in 2014 or 2015. (Id.) In this

incident, she woke up to a bright light being shined in her face, and Appellant touching

her breast with his hand. (Id.) She testified that when she caught Appellant doing this,

she stated, "go away, Jon." “Daughter 1” informed her afterwards that she had observed

this incident. (T. at 498, 500).

       {¶17} “Daughter 2” testified that she was the victim of one other incident that

occurred approximately one week before August 19, 2016. (T. at 501). Similar to the other

incidents, she woke up to a bright light being shined in her face, and someone she was

very sure was Appellant was touching her breast with his hand. (T. at 501-2).

                                         “DAUGHTER 3”

       {¶18} “Daughter 3”, who was eleven (11) years old at the time of trial, testified that

she was the victim of a single incident in which Appellant touched her chest and butt

areas. (T. at 553). This incident occurred in the sisters' bedroom while she was faking

sleep in the top bunk. (T. at 552). However, she was not sure when it happened, as she

testified she is not "good with remembering." (Id.) The incident may have occurred one or

two years ago. (Id.) “Daughter 3” did not testify to witnessing or being the victim of any

other incidents.

                                          DNA Evidence

       {¶19} On August 20, 2016, Detective Vanoy of the Newark Police Department

interviewed “Daughter 1” and “Daughter 2” with respect to their allegations. (T. at 347).

Based upon information given to him regarding the incident that occurred the day prior,

Detective Vanoy sent “Daughter 1” back to the apartment on Everett Avenue to collect

the shorts she was wearing at the time of the allegation. (T. at 354). “Daughter 1” brought
Licking County, Case No. 18 CA 00004                                                        6


the shorts to Detective Vanoy in a plastic grocery shopping bag, the shorts were

transferred to a paper bag and sent to the Ohio Bureau of Criminal Investigation ("BCI")

for DNA testing. (T. at 355-7).

       {¶20} BCI analyst, William Schepeler, testified that he conducted DNA

comparisons of swabs taken from “Daughter 1’s” shorts against DNA standards of

“Daughter 1” and Appellant. (T. at 623). Appellant was excluded as a contributor of DNA

in swabs taken from the interior and exterior front panel of “Daughter 1’s” shorts. (T. at

634, 637).

       {¶21} Y-STR DNA analysis was also conducted on the interior and exterior swabs

of the front panel of “Daughter 1’s” shorts. (T. at 646). Schepeler testified that Y-STR DNA

testing looks at the Y chromosome to look for male-specific DNA. (T. at 643). Schepeler

further testified that Y-STR profiles are not unique to a specific individual, all individuals

with shared paternal lineage are expected to have the same Y-STR DNA. (Id.) Y-STR

analysis on these swabs revealed that Jonathan Leach was included as a contributor. (T.

at 648). Schepeler went on to further describe that Appellant was included with a statistic

of 1 in 8,621, meaning that it would be expected to find one individual responsible for the

DNA out of every 8,621 individuals sampled. (Id.) Despite these findings, Schepeler could

not say with any degree of scientific certainty that the DNA found belongs to Appellant.

(T. at 667).

                                           APPELLANT

       {¶22} Appellant took the stand in his own defense and testified that his

relationship with his three step-daughters often involved disputes over the girls’ lack of

effort to keep their room clean. (T. at 766). He further explained that he would look into
Licking County, Case No. 18 CA 00004                                                      7


their room using the flashlight on his cell phone every night after he returned home from

work around 2:00 a.m. (T. at 793, 795-796). Appellant testified to further frustrations with

the girls not completing their chores and stated that all three rarely did their own laundry

and either he or Breanna would do the household's laundry. (T. at 789-90).

       {¶23} Appellant denied ever inappropriately touching any of the girls. (T. at 792).

       {¶24} At the close of the State's case, counsel for the defense moved for a Rule

29 Motion for Acquittal as to all counts of the indictment. The trial court found the motion

to have merit with respect to Counts Six, Seven, Twelve, and Thirteen, which alleged

violations of gross sexual imposition, as well as Counts Twenty-Two, Twenty-Three, and

Twenty-Four, which alleged violations of menacing by stalking; a judgement of acquittal

was entered as to those seven counts.

       {¶25} The remaining counts presented to the jury alleged various violations of

gross sexual imposition.

       {¶26} After deliberations, the jury found the defendant Not Guilty of Counts One,

Two, Three, Four, and Five, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and

Twenty-One.

       {¶27} Appellant was found guilty of gross sexual imposition, in violation of R.C.

§2907.05(A)(1), in Counts Eight, Ten, and Fourteen. He was also found guilty of gross

sexual imposition, in violation of R.C. §2907.05(A)(5), in Counts Nine, Eleven, and

Fifteen.

       {¶28} On January 8, 2018, at the sentencing hearing, it was agreed upon that

Counts Eight and Nine merged for the purposes of sentencing, and the State elected to

proceed with sentencing on Count Eight. The parties also agree that Counts Ten and
Licking County, Case No. 18 CA 00004                                                   8


Eleven merged for the purposes of sentencing, and the State elected to proceed on Count

Ten. Counts Fourteen and Fifteen similarly merged for the purposes of sentencing, and

the State elected to proceed on Count Fourteen.

      {¶29} The trial court sentenced Appellant to nine (9) months imprisonment on

Counts Eight, Ten, and Fourteen, and it was ordered that the counts be served

consecutively, for a total stated prison term of twenty-seven (27) months.

      {¶30} Appellant now appeals, raising the following assignment of error on appeal:

                                 ASSIGNMENTS OF ERROR

      {¶31} “I. THE DEFENDANT-APPELLANT'S CONVICTIONS FOR GROSS

SEXUAL IMPOSITION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      {¶32} “II.   THE     STATE     OF     OHIO    COMMITTED        PROSECUTORIAL

MISCONDUCT DURING ITS CLOSING ARGUMENT IN VIOLATION OF HIS DUE

PROCESS RIGHTS AND DEPRIVING HIM OF A FAIR TRIAL.

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

ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO OBJECT TO

IMPROPER COMMENTS ON THE PART OF THE PROSECUTION DURING CLOSING

ARGUMENT THAT AMOUNTED TO PROSECUTORIAL MISCONDUCT.”

                                               I.

      {¶34} In his first assignment of error, Appellant argues that his convictions are

against the manifest weight of the evidence. We disagree.

      {¶35} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine “whether in resolving conflicts in the evidence, the jury clearly
Licking County, Case No. 18 CA 00004                                                     9


lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–

Ohio–52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” Martin at

175.

       {¶36} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

       {¶37} In the case sub judice, Appellant was convicted of three counts of gross

sexual imposition, in violation of R.C. §2907.05(A)(1) and three counts of gross sexual

imposition in violation of R.C. §2907.05(A)(5), which provides as follows:

       {¶38} R.C. §2907.05 Gross Sexual Imposition

              (A) No person shall have sexual contact with another, not the spouse

       of the offender; cause another, not the spouse of the offender, to have

       sexual contact with the offender; or cause two or more other persons to

       have sexual contact when any of the following applies:

              (1) The offender purposely compels the other person, or one of the

       other persons, to submit by force or threat of force.

              ***
Licking County, Case No. 18 CA 00004                                                       10


              (5) The ability of the other person to resist or consent or the ability of

       one of the other persons to resist or consent is substantially impaired

       because of a mental or physical condition or because of advanced age, and

       the offender knows or has reasonable cause to believe that the ability to

       resist or consent of the other person or of one of the other persons is

       substantially impaired because of a mental or physical condition or because

       of advanced age.

       {¶39} “Sexual contact” is defined in R.C. §2907.01(B) as:

              [A]ny touching of an erogenous zone of another, including without

       limitation the thigh, genitals, buttock, pubic region, or, if the person is a

       female, a breast, for the purpose of sexually arousing or gratifying either

       person.

       {¶40} Appellant was convicted of counts of gross sexual imposition related to

“Daughter 1” and “Daughter 2”. At trial, as set forth above, the jury heard testimony from

both “Daughter 1” and “Daughter 2” with regard to the actions of Appellant. (T. at 421-

428; 444-447; 486-504). Each testified as to what happened to them and their knowledge

of what happened to the other sister. Id. They also testified as to telling their mother what

had occurred. (T. at 429). Additionally, the jury heard from Mr. Schepeler, the forensic

scientist, that Appellant’s Y-STR DNA was found on the clothes belonging to “Daughter

1”. (T. at 623-624, 638, 648).

       {¶41} The testimony of “Daughter 1” and “Daughter 2” alone was sufficient, if

believed by the jury, to support the six (6) convictions of gross sexual imposition.
Licking County, Case No. 18 CA 00004                                                        11


       {¶42} Based on the testimony and evidence presented to the jury, we do not find

the jury lost its way in finding Appellant guilty, and the judgment is not against the manifest

weight of the evidence.

       {¶43} Appellant’s first assignment of error is overruled.

                                                  II.

       {¶44} In his second assignment of error, Appellant argues that the State of Ohio

committed prosecutorial misconduct during its closing argument. We disagree.

       {¶45} The test for prosecutorial misconduct is whether the prosecutor's remarks

and comments were improper and if so, whether those remarks and comments

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596

(1990). In reviewing allegations of prosecutorial misconduct, we must review the

complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S.

168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not provide a

basis for reversal unless the misconduct can be said to have deprived Appellant of a fair

trial based on the entire record. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d 293.

       {¶46} A prosecutor's remarks constitute misconduct if remarks were improper and

if the remarks prejudicially affected an accused's substantial rights. State v. Williams, 99

Ohio St.3d 439, 793 N.E.2d 446, 2003–Ohio–4164. 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 (1990), 51 Ohio St.3d 160,

555 N.E.2d 293. The touchstone of analysis is the “fairness of the trial, not the culpability

of the prosecutor.” State v. Gapen, 104 Ohio St.3d 358, 819 N.E.2d 1047, 2004–Ohio–
Licking County, Case No. 18 CA 00004                                                   12


6548. The record must be viewed in its entirety to determine whether the allegedly

improper remarks were prejudicial. State v. Treesh (2001), 90 Ohio St.3d 460, 739 N.E.2d

749.

       {¶47} Appellant argues that the following statements made by the prosecutor,

during closing argument, were improper:

              Now, the picture should be clear at this point in time, ladies and

       gentlemen, that the Defendant sexually assaulted his stepdaughters. He did

       so over the course of the past several years and I’d like to start by talking

       to you just briefly about these photographs that the Defense keeps showing

       you, and the inference that they want you to make that somehow their

       happiness is indicative that this didn’t happen. That’s nonsense. These

       pictures are disingenuous, at best, fraudulent is probably the more accurate

       term. (T. at 817).

              ***

              Now, ladies and gentlemen, I submit to you that the reason they did

       that is because that’s what happened. There’s no other reason for them to

       be sitting in that chair. You were given no reason why those girls would be

       in here and decide they’re going to concoct this huge story. That they’re

       going to come in here and say, oh, you know, this guy did this, why, because

       they were getting yelled at, because they didn’t do their chores. Ladies and

       gentlemen, what sense does that make? They’re in here telling you about

       what the man did to them over the course of years because he yelled at
Licking County, Case No. 18 CA 00004                                                    13


      them for not washing dishes. Ladies, and gentlemen, that’s preposterous,

      that’s ridiculous. (T. at 851-852).

             ***

             Ladies and gentlemen, hold us to our burden, reasonable doubt,

      beyond a reasonable doubt, and what you’ll see again when the Judge

      reads that language is it’s reason and common sense. Ask yourself, ladies

      and gentlemen, who do you believe, the Defendant who came up here and

      just told you these bad things that these kids did, but gave you no

      explanation as to why these girls are sitting in the chair. Did that make any

      sense? Did any of that have to do with why you are all here today and here

      over the last couple of days? No. Use your reason and common sense and

      ask yourself when judging the credibility of those girls why they’re in that

      chair, how they reacted while they were in that chair, how they answered

      these questions, and, ladies and gentlemen, it is beyond reason, beyond

      common sense that they sat in that chair and told you what that man did to

      them because that’s exactly what happened. (T. at 855-856).

      {¶48} Initially, we note appellant did not object to the claimed misconduct at trial.

If trial counsel fails to object to the alleged instances of prosecutorial misconduct, the

alleged improprieties are waived, absent plain error. State v. White, 82 Ohio St.3d 16, 22,

1998–Ohio–363, 693 N.E.2d 772 (1998), citing State v. Slagle, 65 Ohio St.3d 597, 604,

605 N.E.2d 916 (1992).

      {¶49} We therefore review Appellant's allegations under the plain-error standard.

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
Licking County, Case No. 18 CA 00004                                                        14


noticed although they were not brought to the attention of the court.” The rule places

several limitations on a reviewing court's determination to correct an error despite the

absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a

legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious'

defect in the trial proceedings,” and (3) the error must have affected “substantial rights”

such that “the trial court's error must have affected the outcome of the trial.” State v. Dunn,

5th Dist. Stark No. 2008–CA–00137, 2009–Ohio–1688, citing State v. Morales, 10 Dist.

Franklin Nos. 03–AP–318, 03–AP–319, 2004–Ohio–3391, at ¶ 19. The decision to correct

a plain error is discretionary and should be made “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶50} Upon review, with regard to the statements made in reference to the

photographs Defendant had admitted as exhibits, we find that the State was challenging

the picture of a perfect, happy home which defense counsel was trying to paint by showing

the photographs of the girls smiling with the family, not the actual photographs

themselves. The State then went on to explain that such a photograph depicts only a

moment in time, and cannot show the whole story. (T. at 818). In closing argument, a

prosecutor may comment on “what the evidence has shown and what reasonable

inferences may be drawn therefrom.” Lott, supra, 51 Ohio St.3d at 165. We find the

statement above a fair comment on the evidence.

       {¶51} In the other two challenged statements, we do not find the prosecutor's

statements to be improper because he did not shift the burden of proof to Appellant, and

these statements did not deprive Appellant of a fair trial. Read in context of the
Licking County, Case No. 18 CA 00004                                                        15


surrounding argument, it is clear that the State is asking the jury to evaluate the credibility

of the witnesses. The State asks the jury to consider the testimony of the victims and the

Appellant and use their common sense. Further, the State tells the jury to “hold us to our

burden, reasonable doubt, beyond a reasonable doubt”.

       {¶52} Moreover, Appellant cannot demonstrate, even assuming arguendo the

cited statements were improper, “but for” these statements he would not have been

convicted of the crimes.

       {¶53} We find Appellant was not denied a fair trial due to prosecutorial misconduct

       {¶54} Appellant’s second assignment of error is overruled.

                                                 III.

       {¶55} In his third assignment of error, Appellant maintains he was denied the

effective assistance of trial counsel due to counsel's failure to object to the prosecutorial

statements set forth in the second assigned error. We disagree.

       {¶56} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158 (1955).

       {¶57} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in the
Licking County, Case No. 18 CA 00004                                                      16

same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside

the wide range of professionally competent assistance.” Id. at 690.

       {¶58} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶59} As stated in our analysis in Appellant’s second assignment of error, we find

the prosecutor's closing argument was not objectionable. In the context of the entire trial,

we find defense trial counsel was not deficient in failing to object during closing argument.

Even had the argument been objectionable, counsel may have deliberately chosen not to

object to avoid drawing the jury's attention to the comments. Trial strategy and even

debatable trial tactics do not establish ineffective assistance of counsel. State v. Conway,

109 Ohio St.3d 412, 2006–Ohio–2815, ¶101. Moreover, the failure to object to error,

alone, is not enough to sustain a claim of ineffective assistance of counsel. State v.

Crawford, 5th Dist. Richland No. 07 CA 116, 2008–Ohio–6260, ¶72, appeal not allowed,

123 Ohio St.3d 1474, 2009–Ohio–5704, 915 N.E.2d 1255, citing State v. Fears, 86 Ohio

St.3d 329, 347, 715 N.E.2d 136 (1999).

       {¶60} Further, we find no reasonable probability the outcome of the trial would

have been different had such objections been raised. State v. Scott, 5th Dist. Richland

No. 11CA80, 2012–Ohio–3482, ¶66, appeal not allowed, 133 Ohio St.3d 1491, 2012–

Ohio–5459, 978 N.E.2d 910, citing State v. Graber, 5th Dist. Stark No. 2002CA00014,
Licking County, Case No. 18 CA 00004                                           17


2003–Ohio–137, ¶154, appeal not allowed, 101 Ohio St.3d 1466, 2004–Ohio–819, 804

N.E.2d 40.

       {¶61} Appellant third assignment of error is overruled.

       {¶62} Accordingly, the judgment of the Licking County Common Pleas Court is

affirmed.


By: Wise, John, P. J.

Gwin, J., and

Wise, Earle, J., concur.



JWW/d 0822
