[Cite as State v. Quinones, 2014-Ohio-5544.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 100928




                                               STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                        ANDREW QUINONES

                                                          DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED




                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-562226-A


        BEFORE: Celebrezze, P.J., McCormack, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: December 18, 2014
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Holly Welsh
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Defendant-appellant Andrew Quinones appeals from his convictions for rape, gross

sexual imposition, and kidnapping. After a careful review of the record and relevant case law,

we affirm appellant’s convictions.

                                       I. Procedural History

       {¶2} On December 4, 2012, appellant was indicted on three counts of rape, four counts of

kidnapping, one count of gross sexual imposition, and one count of pandering obscenity

involving a minor.     The indictment was rendered based on allegations that appellant had

molested victim, S.H., seven years earlier when she was between the ages of nine and ten.

       {¶3} On May 6, 2013, the case proceeded to a jury trial. At the conclusion of the state’s

case, the state dismissed Count 9, pandering obscenity involving a minor. At the conclusion of

trial, the jury was deadlocked and a mistrial was declared. A new trial was set for July 8, 2013.

       {¶4} On July 26, 2013, a new attorney filed a notice of appearance on behalf of appellant,

and a bench trial began on November 19, 2013. At the conclusion of trial, the trial court found

appellant guilty on all counts.

       {¶5} At sentencing, appellant was sentenced to five years for gross sexual imposition, ten

years for rape, and life with the possibility for parole after ten years for kidnapping. The

sentences were ordered to run concurrently.        The court also declared appellant to be an

aggravated sexually-oriented offender.

                                     II. Statement of the Facts

       {¶6} In March 2004, Heather H. became romantically involved with appellant. Shortly

thereafter, Heather learned that she was pregnant with appellant’s child. On May 24, 2004,
Heather and appellant married. During Heather’s pregnancy, appellant was in the military and

stationed in Pensacola, Florida while Heather remained in Ohio.

       {¶7} In September 2004, appellant returned to Ohio, without permission from his

superiors, when he learned that Heather was experiencing medical complications due to her

pregnancy. Appellant moved in with Heather and her family in order to care for Heather during

the remainder of her pregnancy.      At the time, Heather lived with her mother Helen, her

10-year-old sister S.H., and her 11-year-old brother W.H.

       {¶8} On January 10, 2005, Heather and appellant’s daughter, A.Q., was born. After

A.Q.’s birth, appellant returned to Pensacola, Florida, where he was punished for his

unauthorized absence and ultimately discharged from the military. When appellant returned to

Ohio, he permanently moved into Helen’s residence.

       {¶9} While appellant was living in Helen’s household, Helen had a job with a municipal

clerk of courts office. Additionally, Heather worked at a local drug store. Consequently, S.H.

and W.H. were often left at home alone with appellant, and he became the authority figure in the

household.

       {¶10} S.H. testified that when she was between the ages of nine and ten, appellant began

sexually abusing her.    According to S.H., the abuse began with a kiss and escalated into

appellant instructing her to “touch his penis,” inappropriately touching her, and directing her to

perform oral sex. S.H. testified that appellant’s requests became more frequent and aggressive.

On a specific occasion, appellant forced her to perform oral sex by pulling her elbows together

and pushing her head down. S.H. testified that on a number of occasions, he took her down to

the basement and forced her to have anal sex. S.H. explained that she complied with appellant’s

directions because she felt that she had to obey him or she would be punished. S.H. stated that
the abuse ended when she moved to Crawford County with her mother and brother in the fall of

2005.

        {¶11} S.H. testified that as she became older and fully grasped what had been done to her,

she became depressed and suicidal. S.H. stated that she was concerned appellant would sexually

abuse A.Q.

        {¶12} When S.H. was approximately 16 years old, she was participating in a junior

varsity basketball practice when she reacted negatively to a comment one of her teammates made

and “stormed out of the gym in a rage.” Her coach, Jen Meyer, followed S.H. into the locker

room. Meyer testified that when she asked S.H. what was bothering her, S.H. responded that

“there were things that happened at home that weren’t good.”            Meyer testified that she

encouraged S.H. to meet with the school’s guidance counselor, Tena Eyster.

        {¶13} After several meetings with Eyster, S.H. disclosed that she had been “molested by a

family member” when she was younger and living in Cleveland. According to Eyster, S.H.

conveyed the information in a very “matter of fact” manner and stated that “there was oral sex

and penetration.” Following this conversation, Eyster contacted Crawford County Children and

Family Services. Eyster also contacted S.H.’s mother, Helen, and set up a meeting where S.H.

told her mother about the abuse.

        {¶14} Devon Sipes Ruiz, a case worker for Crawford County Children and Family

Services, testified that she was assigned to perform an assessment of S.H. Ruiz testified that

once she confirmed that S.H. was no longer residing in the home with appellant, she contacted

law enforcement and made them aware of the allegations.          Thereafter, Ruiz conducted an

interview of S.H. where S.H. described some specific details of her sexual abuse. Ruiz testified

that she subsequently sent a copy of her assessment to the Newburgh Heights Police Department.
       {¶15} Detective Brian O’Connell of the Newburgh Heights Police Department was

assigned to investigate the sexual assault of S.H. Det. O’Connell testified that following his

receipt of case worker Ruiz’s assessment, he contacted Helen and asked to meet S.H.             Det.

O’Connell stated that he and a representative of the Cleveland Rape Crisis Center conducted an

interview with S.H. Det. O’Connell testified that although “her statements were somewhat

vague on dates and times,” S.H. was able to explain and

       articulate that there were multiple instances that began to happen, instances being
       that of kissing, then progressed on to fondling of genitalia — [appellant]’s
       genitalia with her hand, him fondling S.H. with his hands. Then it progressed to
       oral sex, * * * as well as then progressing to what [S.H.] stated herself as sodomy
       and anal sex.

Following his interview of S.H., Det. O’Connell conducted a non-custodial interview of

appellant. Det. O’Connell described appellant as “evasive” and “physically uptight.”

       {¶16} Appellant brings this timely appeal, raising one assignment of error for review.

                                     III. Law and Analysis

       {¶17} In his sole assignment of error, appellant argues that he was denied the effective

assistance of counsel, in violation of the Sixth Amendment to the U.S. Constitution.

       {¶18} In order to establish a claim of ineffective assistance of counsel, appellant must

demonstrate that (1) counsel’s performance was deficient or unreasonable under the

circumstances and (2) the deficient performance prejudiced the defense.            Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, an attorney

properly licensed is presumed competent. State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d 293

(1990). The defendant has the burden of proof and must overcome the strong presumption that

counsel’s performance was adequate or that counsel’s action might be sound trial strategy. State

v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
           {¶19} Generally, decisions on strategy and trial tactics are granted wide latitude of

professional judgment, and it is not the duty of a reviewing court to analyze trial counsel’s legal

tactics and maneuvers. State v. Gau, 11th Dist. Ashtabula No. 2005-A-0082, 2006-Ohio-6531, ¶

35, citing Strickland. Furthermore, “in a bench trial, the trial court is presumed to have relied

only upon admissible evidence.”            State v. Warren, 8th Dist. Cuyahoga No. 83823,

2004-Ohio-5599, ¶ 47, citing State v. Davis, 63 Ohio St.3d 44, 584 N.E.2d 1192 (1992). See

also State v. Turner, 10th Dist. Franklin No. 04AP-364, 2004-Ohio-6609, ¶ 24.

           {¶20} In the case at hand, appellant contends that defense counsel was deficient in three

different respects. He claims that defense counsel used improper strategy and tactics, allowed

impermissible evidence to be admitted at trial, and failed to adequately prepare for trial.

           {¶21} Initially, appellant argues that defense counsel’s strategy was “doomed” in “the

most offensive way possible.”        Here, the record reflects that defense counsel attempted to

discredit S.H.’s testimony by suggesting that it was “anatomically impossible” for appellant to

anally rape S.H. without causing her serious physical injuries. Appellant’s defense was centered

on his past sexual partners, who were called to testify about appellant’s anatomy and sexual

history.     Appellant contends that defense counsel’s theory of defense was irrelevant and

constituted a misunderstanding of the law.

           {¶22} Further, appellant challenges defense counsel’s decision to elicit testimony during

the cross-examination of Heather and social worker Ruiz relating to whether they believed S.H.’s

allegations and asking Det. O’Connell if he “form[ed] an opinion as to [appellant’s] guilt.”

Appellant argues that defense counsel effectively bolstered the credibility of S.H. and prejudiced

his own client’s defense.
       {¶23} Next, appellant argues that defense counsel failed to object to numerous instances

of inadmissible evidence. Specifically, he contends that defense counsel failed to object to

Heather’s testimony concerning their “terrible marriage” or to Det. O’Connell’s testimony that

appellant was “very evasive” during his initial interview.

       {¶24} Finally, appellant argues that defense counsel’s conduct throughout the trial placed

his level of preparation into question.

       {¶25} After a careful review of the record in its entirety, we find that appellant has not

demonstrated a “reasonable probability” that the outcome of the proceedings would have been

different but for defense counsel’s deficient performance. We recognize that defense counsel’s

line of questioning relating to appellant’s sex life with his past partners may not have been

relevant. Further, the record supports appellant’s position that defense counsel should not have

raised questions concerning S.H.’s credibility during cross-examination and demonstrated a lack

of preparation prior to calling appellant to the stand. Nevertheless, we will ordinarily refrain from

second-guessing strategic decisions counsel makes at trial, even where counsel’s trial strategy

was questionable. See State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶

33 (“the scope of cross-examination falls within the realm of trial strategy and, therefore,

debatable trial tactics do not establish ineffective assistance of counsel”), citing State v. Clayton,

62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).

       {¶26} Moreover, we must presume that the trial court, serving as the trier of fact in a

bench trial, did not consider such improper evidence. In re B.P.K., 10th Dist. Franklin No.

12AP-343, 2012-Ohio-6166, ¶ 19. In fact, the trial court emphasized this point, stating:

       I want the reviewing court to realize that certain testimony, and particularly the
       testimony that was elicited by the defense on cross-examination which was
       opinion testimony by the detective in the case about whether he believed the
       defendant was telling the truth during the course of his statement, the Court did
       not consider the opinion testimony in reaching its verdict, or anyone else.

       {¶27} In our view, the perceived errors in defense counsel’s performance did not impact

the sufficiency of the state’s evidence. As noted by the trial court at the sentencing hearing,

S.H.’s testimony was consistent throughout the proceedings despite defense counsel’s attempts to

impeach her credibility and time line.       (Tr. 1620-22.)     As such, appellant’s ineffective

assistance of counsel arguments fail the second prong in Strickland, supra.

       {¶28} Appellant’s sole assignment of error is overruled.

       {¶29} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s convictions having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR
