[Cite as State v. Bower, 2015-Ohio-4420.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 17-15-07

        v.

ROBERT E. BOWER,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 13CR000059

                                      Judgment Affirmed

                           Date of Decision: October 26, 2015




APPEARANCES:

        Robert E. Bower, Appellant

        Brandon W. Puckett for Appellee
Case No. 17-15-07


ROGERS, P.J

       {¶1} Defendant-Appellant, Robert E. Bower, appeals the judgment of the

Court of Common Pleas of Shelby County denying his petition for post-conviction

relief. On appeal, Bower argues that the trial court erred in failing to find that he

was denied effective assistance of counsel. For the reasons set forth herein, we

affirm the judgment of the trial court.

       {¶2} On February 28, 2013, a Shelby County Grand Jury indicted Bower

on one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first

degree, along with an attendant sexual-motivation specification, and one count of

kidnapping in violation of R.C. 2905.01(A)(4), a felony of the first degree. The

charges stemmed from an incident in which 63-year-old Bower allegedly engaged

in nonconsensual oral sex with the 26-year-old victim. Bower entered a plea of

not guilty.

       {¶3} Thereafter, the State dismissed the attendant specification alleging that

Bower committed the rape with a sexually-motivated purpose.

       {¶4} On February 4, 2014, a jury trial commenced, and Bower was

ultimately found guilty on both counts. On April 8, 2014, the trial court sentenced

Bower to eight years in prison.




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         {¶5} Defendant timely appealed, and on May 18, 2015, Bower’s conviction

and sentence were affirmed. State v. Bower, 3d Dist. Shelby No. 17-14-14, 2015-

Ohio-1889.1

         {¶6} Meanwhile, on March 11, 2015, Bower filed a petition for post-

conviction relief, pursuant to R.C. 2953.21, claiming that he was denied effective

assistance of counsel as guaranteed to him by the Sixth Amendment to the United

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

Specifically, Bower challenged trial counsel’s failure to call an expert witness, Dr.

Dan Krane, to testify regarding the alternative ways that amylase, a component of

saliva, could have been transferred to the victim’s body. Attached to Bower’s

petition was (1) Bower’s affidavit (2) written correspondences between trial

counsel and Dr. Krane and (3) a copy of Dr. Krane’s subpoena and its service

instructions.

         {¶7} By way of entry dated April 21, 2015, the trial court denied Bower’s

petition. In doing so, the trial court noted that the decision to forgo calling Dr.

Krane was presumably trial strategy, as Dr. Krane’s opinions primarily aligned

with the testimony of the State’s experts. Moreover, the State’s experts conceded




1
  In our earlier decision, we stated that Bower’s charge of kidnapping carried an attendant sexual-
motivation specification and that the jury found Bower guilty of all charges in the indictment, including the
specification. In fact, the sexual-motivation specification was indicted in connection with the sole count of
rape, and the State ultimately dismissed the specification prior to the start of trial.

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Case No. 17-15-07


that the fluids found on the victim’s body could have been transferred by several

different means, including those asserted by Bower.

      {¶8} It is from this judgment that Bower appeals, presenting the following

assignments of error for our review.

                           Assignment of Error No. I

      TRIAL COURTS [SIC] DECISION/ORDER DENYING
      PETITIONERS [SIC], PETITION FOR POST CONVICTION
      RELIEF IS CONTRARY TO THE OHIO CONSTITUTION,
      ARTICLE 1:10, OHIO SUPREME COURT LAW AND LAW
      SET DOWN BY THE UNITED STATES CONSTITUTION, TO
      WIT.

                           Assignment of Error No. II

      COUNSEL’S    INEFFECTIVENESS    VIOLATED                         MR.
      BOWERS [SIC] RIGHT TO PRESENT A DEFENSE.


      {¶9} Due to the nature of Bower’s assignments of error, we elect to address

them together.

                         Assignments of Error Nos. I & II

      {¶10} In his first and second assignment of error, Bower argues that the

trial court erred in denying his petition for post-conviction relief. Specifically,

Bower claims that he was denied effective assistance of counsel as guaranteed to

him by the Sixth Amendment to the United States Constitution, and Article I,

Section 10 of the Ohio Constitution. We disagree.



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       {¶11} R.C. 2953.21, Ohio’s post-conviction relief statute, provides those

convicted of a felony offense “ ‘a remedy for a collateral attack upon judgments of

conviction claimed to be void or voidable under the United States or the Ohio

Constitution.’ ” State v. Scott-Hoover, 3d Dist. Crawford No. 3-04-11, 2004-

Ohio-4804, ¶ 10, quoting State v. Yarbrough, 3d Dist. Shelby No. 17-2000-10,

2001 WL 454683, *3 (Apr. 30, 2001). “A petitioner must establish that there has

been a denial or infringement of his constitutional rights in order to prevail on a

petition for post-conviction relief.” State v. Wyerick, 3d. Mercer No. 10-07-23,

2008-Ohio-2257, ¶ 11.

       {¶12} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of the syllabus. “To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.” Id. at paragraph three of the syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103, 1997-Ohio-355.


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       {¶13} Further, the court must look to the totality of the circumstances and

not isolated instances of an allegedly deficient performance. State v. Barnett, 3d

Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶ 45. “Ineffective assistance does not

exist merely because counsel failed ‘to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.’ ” Id., quoting Smith v.

Murray, 477 U.S. 527, 535, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

       {¶14} In reviewing an effective assistance of counsel challenge, we are

reminded that

       [j]udicial scrutiny of counsel’s performance is to be highly
       deferential, and reviewing courts must refrain from second-guessing
       the strategic decisions of trial counsel. To justify a finding of
       ineffective assistance of counsel, the appellant must overcome a
       strong presumption that, under the circumstances, the challenged
       action might be considered sound trial strategy.

State v. Carter, 72 Ohio St.3d 545, 558 (1995). In other words, “trial counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance.” State v. Thompson, 33 Ohio St.3d 1, 10

(1987).

       {¶15} Here, we cannot say that trial counsel’s failure to call Dr. Krane as a

witness was unreasonable. Bower avers that Dr. Krane’s testimony was necessary

because it contradicted the testimony of the State’s experts, forensic scientists

Malorie Kulp and Halle Garofola. According to Bower, “it was not fair for the

states [sic] experts [sic] witness to imply that the DNA came from cunnilingus,

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Case No. 17-15-07


this tipped the scales of justice in favor of the prosecution.” (Docket No. 261, p.

10). Bower maintains that Dr. Krane’s testimony was necessary to establish that

the fluids found on the victim’s vaginal area could have been transferred by means

other than oral sex. In reviewing Bower’s evidence, we cannot reach the same

conclusion.

      {¶16} In the written correspondences between Dr. Krane and trial counsel,

Dr. Krane indicated that he agreed with Ms. Kulp’s finding that “the Y-

chromosome DNA profile from the vaginal swab appears to be consistent with

[Bower].” (Docket No. 261, Exhibit A4, p. 1). Dr. Krane further opined that

although the results from the vaginal sample could be consistent with Bower

engaging in oral sex with the victim, “they would also be consistent with a number

of alternative means of DNA transfer including but not limited to touching,

vaginal sex and secondary transfer.” (Docket No. 261, Exhibit A4, p. 2).

      {¶17} According to Bower, Dr. Krane’s opinion was necessary to support

Bower’s claim that the fluids were transferred to the victim’s vaginal area by way

of touching. While it is true that Dr. Krane’s opinion supported Bower’s version

of events, trial counsel elicited similar support from the State’s experts on cross-

examination. On multiple occasions, Ms. Kulp admitted that the fluids found in

the victim’s underwear could have resulted from the victim’s menstrual cycle,

which was ongoing at the time of the alleged rape. To that end, Ms. Kulp also


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implied that the fluids could have resulted from events entirely unrelated to

Bower.    Furthermore, Ms. Garofola corroborated Bower’s version of events

insofar as she testified that it was “absolutely” possible that the fluids were

transferred to the victim’s vaginal area by way of touching. Trial Tr. p. 364.

       {¶18} In reviewing the evidence attached to Bower’s petition, it is

abundantly clear that the substance of Dr. Krane’s testimony was elicited and

explored during the examination of the State’s experts. As such, we cannot say

that the decision to forgo calling Dr. Krane was unreasonable.

       {¶19} Because Bower failed to establish that trial counsel’s performance

fell below an objective standard of reasonableness, we need not address whether

Bower was prejudiced thereby.

       {¶20} In addition to his claim of ineffective assistance of counsel, Bower

also challenges the admissibility of Ms. Garofola’s testimony.         Specifically,

Bower contends that Ms. Garofola improperly testified that the fluids found on the

victim’s body were “more than likely” transferred by means other than those

asserted by Bower. Trial Tr. p. 364-365.

       {¶21} Under the doctrine of res judicata

       a final judgment of conviction bars a convicted defendant who was
       represented by counsel from raising and litigating in any proceeding
       except an appeal from that judgment, any defense or any claimed
       lack of due process that was raised or could have been raised by the
       defendant at the trial, which resulted in that judgment of conviction,
       or on appeal from that judgment.

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State v. Perry, 10 Ohio St.2d 175 (1967), at paragraph 9 of the syllabus. Here,

Bower could have raised and litigated this claim on direct appeal, as the

admissibility of Ms. Garofola’s testimony could have been fairly determined

without resort to evidence dehors the record. Thus, Bower’s claim is barred by the

doctrine of res judicata.

       {¶22} In light of the foregoing, we cannot say that the trial court erred in

denying Bower’s petition for post-conviction relief.    Accordingly, Bower’s first

and second assignments of error are overruled.

       {¶23} Having found no error prejudicial to the appellant, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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