[Cite as State v. Wallace, 2017-Ohio-7322.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105123




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                              LAWRENCE J. WALLACE
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-601805-A

        BEFORE: Keough, A.J., Boyle, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: August 24, 2017
ATTORNEY FOR APPELLANT

Mary Elaine Hall
245 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jeffrey Schnatter
       Melissa Riley
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

          {¶1} Defendant-appellant, Lawrence J. Wallace (“Wallace”), appeals from the

trial court’s judgment, rendered after a jury verdict, finding him guilty of unlawful sexual

conduct with a minor, sentencing him to one year incarceration, and determining he is a

Tier II sexual offender. Wallace contends that he was denied his constitutional right to

effective assistance of counsel when counsel failed to exercise a peremptory challenge

and allowed a biased juror to be seated on the jury. Finding no merit to the appeal, we

affirm.

I.        Background

          {¶2} Wallace was indicted in a multicount indictment as follows: Count 1, rape

(vaginal intercourse) in violation of R.C. 2907.02(A); Count 2, rape by force

(cunnilingus) in violation of R.C. 2907.02(A)(2); Count 3, rape by force (digital

penetration) in violation of R.C. 2907.02(A)(2); Count 4, gross sexual imposition

(touching the victim’s breast) in violation of R.C. 2907.05(A)(1); Count 5, gross sexual

imposition (touching the victim’s thighs) in violation of R.C. 2907.05(A)(1); Count 6,

unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), with a furthermore

specification that the victim was at least 13 years old but younger than 16, and that

Wallace was ten or more years older than the victim at the time of the offense; and Count

7, kidnapping in violation of R.C. 2905.01(A)(4). The charges arose out of incident

involving Wallace and his 14-year-old goddaughter.
       {¶3} During voir dire, Juror No. 13 revealed that she was a police officer for the

city of Cleveland police department but stated that she believed she could be a juror

because “I know how to be impartial and how to, you know, give people fair judgment.”

She further revealed that two years earlier, she had been the victim of kidnap and rape by

her ex-husband, who pleaded guilty to domestic violence as a result of the incident. She

stated that her experience would not cause her to be biased against Wallace, however,

despite the rape allegations in this case. The prosecutor asked her:

       PROSECUTOR: Okay. How do you think that will affect you, hearing
       from a victim, her saying she’s a victim of a rape?

       JUROR NO. 13: I don’t — I know that it will not affect me to be biased.
       And the reason I say that is because it wasn’t until I was explaining to the
       police officer and the detective that came out that they put the title “rape”
       on it.

       I just — sometimes when we think of rape, we just think of someone laying
       down and penetrating themselves into you, but there’s so many other, you
       know, surrounding things of rape.

       In my situation, it was him sticking his finger in me, and it wasn’t, like, a
       full-blown. It was — the fact that he touched me there and it penetrated
       even this much, it was technically rape. So I’m not even — I guess I’m not
       hurt by it or bothered by it as much as, I guess, people think I should be.

       I just don’t like to talk about it in front of a lot of people because I don’t
       want them to think that, oh, she’s weak, or that happened to her, or, oh, my
       God. I don’t like that because I’m much stronger from this.

       ***

       PROSECUTOR: Okay. And listening to somebody talk about a sexual
       assault, that’s not going to cause you to go back into those — like, you’d
       be able to focus on what this young lady is saying, not bringing back
       memories?
       JUROR NO. 13: Yes. Absolutely.

Defense counsel then questioned Juror No. 13:

       DEFENSE COUNSEL: Thank you. You heard, [Juror No. 13], you heard
       the allegations in this case, and one of the rape charges is digital
       penetration. And when you hear those facts, to echo what the prosecutor
       said, that won’t affect your ability to be fair and impartial at all?

       JUROR NO. 13: No, it will not affect me.

(Tr. 165-170.) After the voir dire was complete, three jurors were excused for cause at

the suggestion of the prosecutor and defense counsel, and Juror No. 13 became Juror No.

3 (hereafter referred to as Juror No. 3). The prosecutor and defense counsel then each

used all of their peremptory challenges on remaining jurors. Defense counsel did not use

a peremptory challenge on Juror No. 3.

       {¶4} The jury subsequently found Wallace guilty of Count 6, unlawful sexual

conduct with a minor with the furthermore specification, and acquitted him of all other

charges. The court sentenced him to one year in prison and ordered him to register as a

Tier II sexual offender. This appeal followed.

II.    Law and Analysis

       {¶5} In his single assignment of error, Wallace contends that his trial counsel was

ineffective for not using a peremptory challenge to excuse Juror No. 3, a rape victim,

from being impaneled as a jury member, and that counsel’s ineffectiveness prejudiced his

right to have an impartial jury decide his case.

       {¶6} To establish constitutionally ineffective assistance of counsel, a defendant

must demonstrate (1) deficient performance by counsel, i.e., that counsel’s performance
fell below an objective standard of reasonable representation; and (2) prejudice, i.e., a

reasonable probability that but for counsel’s errors, the result of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113.

 When performing a Strickland analysis, courts “‘must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’”

State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 151, quoting

Strickland at 689.

       {¶7} Generally, jury selection falls within the realm of trial strategy and tactics.

State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 63; State v. Keith,

79 Ohio St.3d 514, 684 N.E.2d 47 (1997).           Thus, the Ohio Supreme Court has

recognized that because “decisions about voir dire are highly subjective and prone to

individual attorney strategy,” Mammone at ¶ 153, reviewing courts should not

second-guess trial counsel’s voir dire strategy nor impose “‘hindsight views’” about how

counsel might have voir-dired the jury differently. Mundt at ¶ 63, quoting State v.

Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998). As the Ohio Supreme Court

explained in Mundt at ¶ 64:

       “Few decisions at trial are as subjective or prone to individual attorney
       strategy as juror voir dire, where decisions are often made on the basis of
       intangible factors.” Miller v. Francis (C.A.6, 2001), 269 F.3d 609, 620.
       “The selection of a jury is inevitably a call upon experience and intuition.
       The trial lawyer must draw upon his own insights and empathetic abilities.
       Written records give us only shadows for measuring the quality of such
       efforts.” * * * Romero v. Lynaugh (C.A.5, 1989), 884 F.2d 871, 878.
       {¶8} With respect to peremptory challenges, the Ohio Supreme Court has found

that “‘[b]ecause the use of peremptory challenges is inherently subjective and intuitive, an

appellate record will rarely disclose reversible incompetence in this process.’” Mundt at

¶ 83, quoting People v. Freeman, 8 Cal.4th 450, 485, 34 Cal.Rptr.2d 558, 882 P.2d 249

(1994).

       {¶9} Wallace contends that Juror No. 3 was biased against him and could not be

impartial when evaluating the evidence because she had been raped two years prior to his

trial, and that counsel was therefore ineffective for not removing her from the jury. He

asserts that “no rape victim is qualified under the Sixth Amendment to render an impartial

verdict when deliberating rape charges against a criminal defendant.”

       {¶10} Wallace relies upon State v. Zerla, 10th Dist. Franklin No. 91AP-562, 1992

Ohio App. LEXIS 1280 (Mar. 17, 1992), wherein the defendant was charged with rape

and kidnapping, and the trial court overruled counsel’s challenge for cause regarding a

juror who had been raped three years earlier. The appeals court held that the trial court

had abused its discretion in refusing to excuse the juror for cause, stating:

       Of all crimes, the crime of rape is one of the most emotionally devastating
       to its victims. When victims of recent sexual crimes are seated on a jury in
       a rape case, there is a substantial risk that they will identify themselves
       emotionally with the victim and against the accused. We do not mean to
       imply that all rape victims are presumed to be biased. But where the crime
       is relatively recent and the juror has not yet fully recovered from the
       experience, it is difficult to believe that such a juror could be objective.
       Under these circumstances, the juror’s pledge to remain impartial and
       unbiased is insufficient to overcome the clear showing of bias implied from
       the recent and unresolved sexual attack.

Id. at *7.
       {¶11} Zerla is easily distinguishable from this case, however. In Zerla, the juror

stated that she had not yet fully recovered from her sexual assault experience. She was

still receiving rape-related counseling at the time of trial, and had been arrested three

times in the three years since the rape for driving while intoxicated, incidents the juror

attributed to the emotional trauma she was still suffering as a result of the rape. In light

of these circumstances, the appellate court found that despite the juror’s assurances that

she could put the experience behind her and decide the case fairly upon its merits, the trial

court abused its discretion in not removing her for cause.

       {¶12} In this case, unlike Zerla, Juror No. 3 never gave any indication that she was

still suffering any emotional trauma as a result of the incident with her ex-husband. In

fact, Juror No. 3 did not even consider herself to be a rape victim; she explained that what

happened was “technically rape” because her ex-husband inserted his finger inside her,

but she was “not bothered by it” as much as people might expect her to be. She stated

further that as her ex-husband’s criminal case proceeded, she “started to heal and pray on

it and look and say, you know what, take care of yourself and, you know, he did

something — he’s a good person, but he made a terrible decision.” In light of these

circumstances, Juror No. 3’s statement that she would be able to remain impartial, despite

her past experience, was credible.

       {¶13} This case is more like State v. Mundy, 99 Ohio App.3d 275, 650 N.E.2d 502

(2d Dist.1994), in which the defendant, who was convicted of 12 counts of gross sexual

imposition for having sexual contact with his three minor grandchildren, argued that the
trial court erred in denying his challenge for cause to two prospective jurors who

indicated during voir dire that they had been the victims of sexual abuse as children by

family members. Based upon their demeanor and answers to questions, the trial court

determined the jurors could be fair and impartial, and overruled the challenge for cause.

The Second District affirmed on appeal, finding that unlike Zerla, the sexual assault was

not recent, and that at the time of trial, the jurors were not receiving counseling related to

the sexual assault or “still actively engaged in the process of recovering from their

experience.” Id. at 298.

       {¶14} Here, as in Mundy, Juror No. 3 was not still actively recovering from her

experience with her ex-husband.       In fact, she stated that she had healed from the

experience and did not hold any animosity toward her ex-husband. Unlike Zerla, there

is nothing in the record demonstrating a “substantial risk” that Juror No. 3 would identify

herself emotionally with the victim and against the defendant. Zerla, 10th Dist. Franklin

No. 91AP-562, 1992 Ohio App. LEXIS 1280 at *7.

       {¶15} Furthermore, we cannot adopt Wallace’s contention that no rape victim can

ever serve on a jury in a case where the defendant is charged with rape. As the Tenth

District recognized in Zerla, not all rape victims are presumed to be biased. Id. Rather,

a juror should not serve “if, under the circumstances, the juror cannot realistically be

considered impartial and indifferent.” Id.; see also R.C. 2313.17(B)(9) (good cause

exists to challenge a prospective juror when “the person discloses by the person’s answers
that the person cannot be a fair and impartial juror or will not follow the law as given to

the person by the court.”)

       {¶16} The use of peremptory challenges is a matter of strategy that, even if

debatable, does not constitute ineffective assistance of counsel. State v. McNeill, 83

Ohio St.3d 438, 439, 700 N.E.2d 596 (1998). Here, counsel’s decision to not dismiss

Juror No. 3 with a peremptory challenge was not debatable strategy; it was a legitimate

tactical decision. Because Juror No. 3 indicated that she could be fair and impartial in

deciding the case, despite her past experience, and there was no evidence to the contrary,

counsel’s decision to leave her on the jury allowed him to use all of his peremptory

challenges to dismiss other prospective jurors, presumably because he felt they could not

adequately consider Wallace’s case.

       {¶17} Moreover, even if counsel’s performance were deficient, Wallace cannot

establish prejudice under Strickland because he cannot establish a reasonable probability

that the result of the trial would have been different had Juror No. 3 been excused.

Instead, he can only speculate that the jury would have returned a not guilty verdict on the

single count he was convicted on — unlawful sexual conduct with a minor — if Juror No.

3 had been excused. Speculation, however, is insufficient to demonstrate the prejudice

component of an ineffective assistance of counsel claim. State v. Powell, 132 Ohio St.3d

233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86; State v. Jenkins, 4th Dist. Ross No.

13CA3413, 2014-Ohio-3123, ¶ 22.
       {¶18} Furthermore, to establish the prejudice element when a defendant alleges

ineffective assistance of counsel due to trial counsel’s failure to excuse a biased juror,

“the defendant ‘must show that the juror was actually biased against him.’” Mundt, 115

Ohio St.3d 514, 2007-Ohio-4836 at ¶ 65, quoting Miller v. Francis, 269 F.3d 609, 616

(6th Cir.2001). As discussed above, although Wallace claims Juror No. 3 was biased, the

record does not support that claim. Accordingly, he has not established that he suffered

prejudice because his counsel allowed Juror No. 3 to be seated as a juror. Therefore, we

find no ineffective assistance of counsel and overrule the assignment of error.

       {¶19} 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 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.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
