[Cite as State v. Croce, 2014-Ohio-1627.]




                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100244


                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                            PAUL CROCE
                                                        DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-573312

               BEFORE:           Blackmon, J., Jones, P.J., and Rocco, J.

              RELEASED AND JOURNALIZED:                      April 17, 2014
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Bldg., Suite 940
526 Superior Avenue
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Alison Foy
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Paul Croce (“Croce”) appeals from his convictions for aggravated

burglary, kidnapping, rape, felonious assault, and aggravated robbery. He assigns six

errors for our review.1

       {¶2} Having reviewed the record and pertinent law, we affirm Croce’s

convictions. The apposite facts follow.

                                           Facts

       {¶3} The Cuyahoga County Grand Jury indicted Croce for three counts of

aggravated robbery, three counts of aggravated burglary, two counts of kidnapping, three

counts of rape, and one count of felonious assault.       The offenses arose from Croce

breaking into a 67-year old woman’s house where he raped her vaginally, orally, and

anally, punched her, and stole money from her purse. The crimes occurred in 2006,

however, a DNA match was not found until 2008. Although the police made attempts to

contact the victim, it was not until 2013 that she responded to their attempts to locate her.

The following evidence was presented to the jury.

       {¶4} On the night of July 19, 2006, the victim was awakened by the sound of her

bathroom window being opened. She called out, “Who’s there?” A man responded,

“Steve.” She went to her bedroom door and saw a man in shorts in the doorway. The

lights were off so she could not see clearly. However, she described him to police as a

white male, about six feet tall, with reddish brown hair, and a “gravelly voice.” She




       See appendix.
       1
estimated he was 40 years old. She told the man to get out of her house. The man

pushed her into the bedroom and onto her bed.

       {¶5} He put a pillow over her face. When she told him she could not breathe, he

put a blanket over her face. He put what felt like a knife against her neck and told her that

if she screamed he would slit her throat. He then punched her so hard in her left cheek

that she “saw stars.” The man forced her to perform oral sex, raped her vaginally, and

digitally penetrated her anus with his finger. When he was finished, he asked her if she

had any money. She told him that she had two dollars in her purse. He took the two

dollars and left.

       {¶6} After he left, the victim went to the bathroom to use the toilet and noticed

the screen to her window was cut open. She then called police. The responding officer

testified that the victim was very upset and crying and had a swollen left face. The victim

told him she did not know the assailant but provided him with the above description. The

officer noticed the screen in the bathroom was cut.

       {¶7} The victim was taken by EMS to Marymount Hospital. Nurse Michelle

Schreiber stated that her notes indicated that the victim was upset and disheveled and had a

black eye and bruises on her left arm and neck. Along with conducting a rape kit,

Schreiber also collected “dry stain swabs” in the areas of the victim’s breasts and neck

because the victim had stated the assailant had licked her in those areas. A cat-scan

revealed the victim had a fractured cheek bone.

       {¶8} Forensic scientist David Niemeyer testified that no seminal fluid was

collected from the victim, which would not be unusual if the assailant did not ejaculate.
However, the dry stain swabs had the DNA of both the victim and an unknown male.

After comparing the DNA with Croce’s, Niemeyer stated he could not be ruled out as a

contributor. He added to find someone that would create this type of DNA profile with

the victim’s, he would have to test 202 quadrillion to 300 trillion unrelated people to get

this profile just one time.

       {¶9} Detective Keith Hunter testified that when Croce was arrested, he asked

Croce if he knew the victim or if he dated any older women. Croce denied knowing the

victim, but admitted to dating older women. He denied having sexual relations with the

victim and could not explain how his DNA got on her.

       {¶10} Croce testified in his own defense. He admitted he had prior convictions for

safecracking, burglary, attempted breaking and entering, disorderly conduct, felonious

assault, and driving while under suspension. He pled guilty to all of these crimes and

served time in prison. He stated he was arrested outside his home in April 2013 for

raping the victim. When his defense attorney showed him a photograph of the victim, he

recalled he knew her.

       {¶11} According to Croce, he became acquainted with the victim when he would

walk past her house on his way to a neighborhood bar. She would be outside doing yard

work. They would first only exchange greetings, but then after time, they would engage

in conversation. He stated one night they sat in her backyard talking, and he kissed her.

       {¶12} They proceeded to go inside her house where he kissed her neck and

breasts. He stated once he saw she had a large red scar on her chest, he became “freaked

out” and told her he did not feel well. He then told her he could not continue being
physical with her because he had a girlfriend. He stated the victim became angry and

ordered him repeatedly to leave her house. He was in a hurry to get out of the house and

did not tie his shoes. He claims he either tripped on his shoe strings or a rug and fell into

the victim and they both hit the wall. He then walked home and never saw her again.

       {¶13} He admitted that at the time he lived near the victim. He stated that from

2007-2009 he was in rehabilitation for a crack addiction; however, at the time he knew the

victim, he claimed he was only an alcoholic.

       {¶14} Based on the evidence, the jury found Croce guilty on all counts. The trial

court merged the two aggravated burglary counts and the two aggravated robbery counts.

The kidnapping counts were merged with one of the rape counts. Thus, Croce was

sentenced for one count of aggravated burglary, one count of aggravated robbery, three

counts of rape, and one count of felonious assault. The trial court sentenced Croce to a

total of 28 years to life in prison. The trial court also classified Croce as a tier three sex

offender.




                   Sufficiency of the Evidence and Manifest Weight

       {¶15} We will address Croce’s first and second assigned errors together.        Croce

argues under both assigned errors that his physical interaction with the victim was

consensual, that her face was injured when he tripped and pushed her into the wall, and

that the fact there were no footprints under the bathroom window show that he did not

climb through the bathroom window.
       {¶16} Croce argues that his convictions are not supported by sufficient evidence.

However, if the victim’s version of events is believed, then there was sufficient evidence

that Croce committed aggravated burglary by entering the home with the intent to commit

rape, raped the victim three times, committed felonious assault by hitting her so hard he

fractured her cheek bone, and committed aggravated robbery by taking money from the

victim’s purse.

       {¶17} In determining whether a conviction is supported by sufficient evidence, the

reviewing court must view the evidence “in the light most favorable to the prosecution”

and ask whether “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d 545, 104, 651 N.E.2d

965 (1995). Based on the victim’s version of events, there was sufficient evidence to

support the convictions.

       {¶18} What Croce is actually arguing is that his convictions were against the

manifest weight of the evidence because he contends the victim’s testimony was not

credible given that it conflicted with his version of events.

       {¶19} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

the Ohio Supreme Court addressed the standard of review for a criminal manifest weight

challenge, as follows:

       The criminal manifest-weight-of-the-evidence standard was explained in
       State v. Thompkins (1997), 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d
       541. In Thompkins, the court distinguished between sufficiency of the
       evidence and manifest weight of the evidence, finding that these concepts
       differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541.
       The court held that sufficiency of the evidence is a test of adequacy as to
       whether the evidence is legally sufficient to support a verdict as a matter of
       law, but weight of the evidence addresses the evidence’s effect of inducing
       belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court
       asks whose evidence is more persuasive — the state’s or the defendant’s?
       We went on to hold that although there may be sufficient evidence to support
       a judgment, it could nevertheless be against the manifest weight of the
       evidence. Id. at 387, 678 N.E.2d 541. “When a court of appeals reverses a
       judgment of a trial court on the basis that the verdict is against the weight of
       the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
       with the factfinder’s resolution of the conflicting testimony.” Id. at 387,
       678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.
       2211, 72 L.Ed.2d 652.

Id. at ¶ 25.

       {¶20} There is no dispute that Croce’s DNA was found on the victim’s body.

Croce originally told police he did not know the victim and had never been to her house

and could not explain how his DNA got on the victim’s body. However, at trial, he

changed his story and stated that he did know the victim and that he had engaged in

physical conduct with her. He claims he did not realize who the victim was until he was

shown a photograph of her.

       {¶21} It was within the jury’s discretion to weigh Croce’s testimony against the

victim’s. Given the testimony of the nurse and the responding officer that the victim was

extremely upset after the event, and the fact there was a bruise on her neck where the

victim stated a sharp instrument was pushed against her throat, we cannot say the jury lost

its way in resolving the conflicting evidence. Moreover, if the victim and Croce did know

each other, and she was trying to frame Croce because he spurned her advances, it is likely

that she would have told the officers that he was the man she frequently saw walking to the

neighborhood bar, instead of merely providing a vague physical description of him.
       {¶22} Croce also argues that because there were no footprints under the window

where the assailant allegedly entered the home, shows the victim was lying. However, the

photographs show that the area under the window is grass. Therefore, the fact that there

were no footprints does not show that the victim was lying because footprints are not

normally left on grassy areas. Accordingly, Croce’s first and second assigned errors are

overruled.

                Jury Instruction and Ineffective Assistance of Counsel

       {¶23} Croce’s third and fourth assigned errors will be addressed together. Croce

argues the trial court committed error in failing to give a limiting instruction to the jury

that it could only consider Croce’s prior convictions in relation to his credibility.

Alternatively, Croce argues that counsel was ineffective for failing to request a limiting

instruction regarding his prior convictions.

       {¶24} The Supreme Court of Ohio has previously expressed its reluctance to

impose a duty on the trial court to sua sponte issue a limiting instruction in response to the

admission of other acts evidence. In State v. Schaim, 65 Ohio St.3d 51, 61, 600 N.E.2d

661 (1992), fn. 9, the court explained:

       The defendant * * * claims that it was plain error for the trial court to fail to

       give a limiting instruction on the use of other acts evidence, even though it

       was not requested by the attorney. We decline to adopt this position, as the

       decision not to request a limiting instruction is sometimes a tactical one, and

       we do not wish to impose a duty on the trial courts to read this instruction

       when it is not requested.
       {¶25} Here, defense counsel failed to request such a limiting instruction.

Therefore, the trial court did not err by failing to instruct the jury.

       {¶26} Croce also argues counsel was ineffective for failing to request such an

instruction. To succeed on a claim of ineffective assistance, a defendant must establish

that counsel’s performance was deficient and that the defendant was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

Counsel will only be considered deficient if his or her conduct fell below an objective

standard of reasonableness. Strickland at 688.

       {¶27} When reviewing counsel’s performance, this court must be highly deferential

and “must indulge a strong presumption that counsel’s conduct [fell] within the wide range

of reasonable professional assistance.” Id. at 689. To establish resulting prejudice, a

defendant must show that the outcome of the proceedings would have been different but

for counsel’s deficient performance. Id. at 694.

       {¶28} As the Supreme Court in Schaim acknowledged, the decision whether to

request such an instruction is tactical.        Therefore, counsel’s failure to request the

instruction could have been tactical. Moreover, even if counsel should have requested the

instruction, Croce has failed to demonstrate that but for this error, the outcome of trial

would have been different. When he was arrested Croce denied knowing the victim; at

trial, he testified he knew the victim and had physical contact with her in an attempt to

explain how his DNA got on the victim. The victim, the nurse, and the responding

officer, all testified to the victim’s mental state; she was upset and crying. Also, if the
victim was framing Croce for spurning her advances, surely she would have told the

officers who her assailant was. She could not even identify Croce as her attacker from the

photo array.

       {¶29} Moreover, the record shows the trial court did give a general instruction

regarding judging the credibility of witnesses. In State v. Cobbins, 8th Dist. Cuyahoga

No. 82510, 2004-Ohio-3736, this court held that counsel’s failure to request a limiting

instruction, when the court gave a general instruction on credibility, does not constitute

ineffective assistance of counsel.     Accordingly, we conclude no prejudice resulted.

Croce’s third and fourth assigned errors are overruled.

                                 Consecutive Sentences

       {¶30} In his fifth assigned error, Croce argues the trial court erred by sentencing

him to consecutive sentences without making the required findings.

       {¶31} R.C. 2953.08(G)(2), governing appellate review of felony sentencing,

provides as follows:

       The appellate court may increase, reduce, or otherwise modify a sentence

       that is appealed under this section or may vacate the sentence and remand

       the matter to the sentencing court for resentencing. The appellate court’s

       standard for review is not whether the sentencing court abused its discretion.

       The appellate court may take any action authorized by this division if it

       clearly and convincingly finds either of the following:

       (a) That the record does not support the sentencing court’s findings under

       division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
       2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,

       if any, is relevant;

      (b) That the sentence is otherwise contrary to law.

       {¶32} Thus, under R.C. 2953.08(G)(2), the following two grounds permit an

appellate court to reverse a trial court’s imposition of consecutive sentences upon an

offender: (1) the sentence is “otherwise contrary to law”; or (2) the appellate court, upon

its review, clearly and convincingly finds that “the record does not support the sentencing

court’s findings.” See also State v. Venes, 8th Dist. Cuyahoga No. 98682,

2013-Ohio-1891, ¶ 11.

       {¶33} Under R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial

court must first find that the sentence is “necessary to protect the public from future crime

or to punish the offender.” The trial court must also find that consecutive sentences are

“not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.”     Id. Further, the trial court must find that one of the

following factors applies:

       (a) The offender committed one or more of the multiple offenses while the

       offender was awaiting trial or sentencing, was under a sanction * * *, or was

       under postrelease control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or

       more courses of conduct, and the harm caused by two or more of the

       multiple offenses so committed was so great or unusual that no single prison

       term * * * adequately reflects the seriousness of the offender’s conduct.
       (c) The offender’s history of criminal conduct demonstrates that consecutive

       sentences are necessary to protect the public from future crime by the

       offender.

       {¶34} In the instant case, the court complied with the findings required by the

statute. After considering seriousness and recidivism factors, the court stated as follows:

       I find that consecutive sentences are necessary to
                         protect [the public] and punish you
                         and not disproportionate, and I’m
                         going to find that the harm was so
                         great or unusual that a single term
                         does not adequately reflect the
                         seriousness of your conduct and
                         that your criminal history shows
                         that consecutive terms are needed
                         to protect the public. * * *

       I think these sentences are appropriate, they’re not disproportionate to any
       sentence this Court would impose for similar offenders by similar conduct, I
       think that the harm that was caused to [the victim] accurately reflects the
       sentence is appropriate.
Tr. at 774-775.

       {¶35} Accordingly, because the trial court made the required findings under R.C.

2929.14(C), it did not err by sentencing Croce to consecutive sentences. Croce’s fifth

assigned error is overruled.

                                           Costs

       {¶36} In his sixth assigned error, Croce argues the trial court erred in imposing

costs because it failed to advise him of the consequences if he failed to pay court costs.

The state concedes the error; however, our review of current case law indicates that it has

no merit.
       {¶37} We agree that the trial court failed to advise Croce of the consequences if he

should fail to pay the costs.        Although R.C. 2947.23(A)(1)(a) formerly required the

advisement to apply to all criminal cases, it was modified, effective March 22, 2013, to

apply only where “the judge or magistrate imposes a community control sanction or other

nonresidential sanction[.]” Croce was sentenced on July 23, 2013 and was sentenced to

28 years in prison. Therefore, the advisement was not mandatory. Accordingly, Croce’s

sixth assigned error is overruled.

       {¶38} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution. The defendant’s conviction 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.




PATRICIA ANN BLACKMON, JUDGE

LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR


                                         APPENDIX

Assignments of Error
I. The trial court erred in denying appellant’s motion for acquittal as to the
charges when the state failed to present sufficient evidence to sustain a
conviction.

II. Appellant’s convictions are against the manifest weight of the evidence.

III. The trial court denied appellant’s right to a fair trial erred by not giving
a jury instruction explaining how appellant’s prior convictions could only be
used to weigh his credibility.

IV. Appellant was denied effective assistance of counsel as guaranteed by
Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth
Amendments.

V. The trial court erred by ordering appellant to serve a consecutive
sentence without making the appropriate findings required by R.C. 2929.14.

VI. The trial court erred by ordering appellant to pay costs.
