[Cite as State v. Fortune, 2020-Ohio-3606.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                         C.A. No.       19AP0024

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RICHARD FORTUNE II                                    COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2018 CRC-I 000142

                                 DECISION AND JOURNAL ENTRY

Dated: July 6, 2020



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Richard Fortune II, appeals from his convictions in the

Wayne County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     D.M. and M.F. are the stepdaughters of Mr. Fortune. He married their mother when

D.M. was five years old and M.F. was one year old. He later adopted M.F., and she understood

Mr. Fortune to be her biological father until she was fourteen years old. Mr. Fortune and the girls’

mother also had two children together. Their daughter was born about a year and a half after they

married, and their son was born about three years after that.

        {¶3}     When D.M. was ten or eleven years old, she told her mother that Mr. Fortune had

sexually abused her. Her accusations went uninvestigated because she recanted, but other issues

arose as time went on. Mr. Fortune was later investigated for having a sexual relationship with a

teenager and, around that same time, D.M. and M.F. told their mother that he had abused them.
                                                 2


The girls also told friends about the abuse at various points, but none of their disclosures resulted

in any action being taken against Mr. Fortune.

       {¶4}    When M.F. was a preteen and D.M. was a teenager, Mr. Fortune left their mother

for the teenage girl he had been seeing. His new relationship did not last long, however, and he

attempted suicide when the girl ended things. Mr. Fortune spent several days in a coma and several

weeks under observation, during which time D.M. and M.F.’s mother visited him. When it was

time for him to be released, they agreed to reconcile. Nevertheless, infidelity was an ongoing issue

in their relationship, and there were times when the family lived apart.

       {¶5}    Shortly after she turned seventeen, M.F. began seeing a psychiatrist and confessed

that Mr. Fortune had sexually abused her in her youth. The psychiatrist reported the abuse to the

authorities, and an investigation ensued. During that investigation, D.M. likewise informed the

authorities that Mr. Fortune had sexually abused her when she was younger. Their disclosures

ultimately led to Mr. Fortune’s arrest.

       {¶6}    A grand jury indicted Mr. Fortune on four counts of rape and five counts of sexual

battery. Three of his rape counts and four of his sexual battery counts related to D.M. Those

counts alleged that he sexually assaulted her at various points between January 2007 and

September 2010 when she would have been between ten and fourteen years old. The remaining

rape count and the remaining sexual battery count related to M.F. Those counts alleged that he

sexually assaulted her between July 2009 and July 2010 when she would have been between nine

and ten years old.

       {¶7}    Mr. Fortune moved to dismiss his indictment based on pre-indictment delay, but

the court denied his motion. He then waived his right to a jury trial, and a bench trial ensued. The

court found him guilty of the two counts related to M.F., but not guilty of his remaining counts
                                                  3


(i.e., those related to D.M.). The court sentenced Mr. Fortune to a total of fifteen years to life in

prison.

          {¶8}   Mr. Fortune now appeals from his convictions and raises four assignments of error

for our review. To facilitate our review, we reorder several of his assignments of error.

                                                  II.

                                      Assignment of Error III

          The trial court erred in denying [Mr. Fortune’s] motion to dismiss for
          prejudicially delayed prosecution[.]

          {¶9}   In his third assignment of error, Mr. Fortune argues that the trial court erred when

it denied his motion to dismiss without setting forth findings of fact and conclusions of law. We

disagree.

          {¶10} Crim.R. 12(F) requires a trial court to “state its essential findings on the record”

when ruling on a motion to dismiss. Crim.R. 12(F). Yet, “[the rule] is not self-executing[.]” State

v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 112. “[S]uch findings must be placed upon the

record only upon ‘the defendant’s request.’” State v. Larsen, 9th Dist. Medina No. 2363-M, 1995

WL 125577, *2 (Mar. 22, 1995), quoting Bryan v. Knapp, 21 Ohio St.3d 64 (1986), syllabus. “[I]f

a defendant does not request findings of fact, any error is forfeited.” Adams at ¶ 112. Accord State

v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 47.

          {¶11} Mr. Fortune has not challenged any substantive aspect of the trial court’s ruling on

his motion to dismiss. His only argument is that the court committed a procedural error when it

summarily denied his motion. Yet, the record reflects that Mr. Fortune never asked the court to

issue findings of fact in support of its ruling. Nor did he object when it issued an abbreviated

ruling. Because Mr. Fortune did not invoke Crim.R. 12(F) or otherwise bring this issue to the trial
                                                   4


court’s attention, he forfeited any error related to its failure to state its findings on the record. See

Adams at ¶ 112; LaMar at ¶ 47. As such, his third assignment of error is overruled.

                                      Assignment of Error IV

        [Mr. Fortune’s] conviction was against the manifest weight of the evidence.

        {¶12} In his fourth assignment of error, Mr. Fortune argues that his convictions are

against the manifest weight of the evidence. We disagree.

        {¶13} When considering an argument that a criminal conviction is against the manifest

weight standard, this Court is required to

        review 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 trier of fact clearly lost its way and created such a manifest
        miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a

conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit

No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily against

the conviction[,]” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

        {¶14} A rape occurs when a person engages in sexual conduct with another person who

is less than thirteen years of age. See R.C. 2907.02(A)(1)(b). A sexual battery occurs when a

person engages in sexual conduct with another person and is their “natural or adoptive parent, or

a stepparent, or guardian, custodian, or person in loco parentis * * *.” R.C. 2907.03(A)(5). The

trial court found that Mr. Fortune committed one count of rape and one count of sexual battery

against M.F. when she was between nine and ten years old.

        {¶15} M.F. testified that Mr. Fortune was her adoptive father and that her family consisted

of him, her mother, an older sister (D.M.), a younger sister, and a younger brother. She recalled

that Mr. Fortune engaged in sexual activity with her about four to five times when she was nine
                                                5


years old, but she was only able to recount the details surrounding two of those incidents. During

one of the incidents, M.F. recalled falling asleep on the family’s living room couch and waking to

find Mr. Fortune’s mouth on her vagina. She could remember feeling “the wetness of his tongue

and his beard hairs.” She also remembered pretending to sleep and just letting the assault happen.

       {¶16} The second incident M.F. recalled also occurred in their family’s living room. M.F.

recalled being asleep on the couch and waking to find Mr. Fortune touching the area around her

vagina. Penetration did not occur, but M.F.’s pants and underwear were down around her ankles,

and Mr. Fortune was making direct contact with her vaginal area. Startled by the realization that

he was touching her, M.F. drew up her knees and pushed Mr. Fortune away with her feet. She

stated that, in response, he asked what was wrong and said he was giving her a massage. She then

retreated to her older sister D.M.’s bedroom, woke her, and told her Mr. Fortune had touched her.

       {¶17} M.F. testified that she saw three different counselors after she turned fourteen, but

never told them about the abuse. D.M. was the first person she told, and she later confided in a

few friends. M.F. recalled that she also briefly spoke to her mother about the abuse when she was

nine years old. She remembered riding in the car with her mother and D.M. and her mother

receiving a phone call. The phone call was from an older friend of D.M.’s and, during the call, the

friend told M.F.’s mother that she (the friend) was having a sexual relationship with Mr. Fortune.

M.F. recalled her mother being extremely upset and questioning how something like that could

have happened. According to M.F., D.M. responded by telling their mother it had happened to

her. D.M. then nudged M.F., and M.F. likewise said it had happened to her. M.F. indicated that

their mother did not believe anything had transpired, so nothing came of their disclosure.

       {¶18} M.F. testified that, after she turned seventeen, she was referred to a psychiatrist due

to severe depression and anxiety. According to M.F., she did not plan on disclosing the abuse at
                                                  6


that time, but her new psychiatrist had an aggressive style and coaxed it out of her. The psychiatrist

then reported the abuse to the authorities, and M.F. was interviewed at the child advocacy center.

Consistent with her testimony, she told the interviewer that Mr. Fortune had sexually abused her

four to five times when she was around nine years old and that those incidents occurred when she

was sleeping on the family’s living room couch.

       {¶19} D.M. testified that she was three years older than M.F. and, much like her sister,

had been sexually abused by Mr. Fortune. She described how he began molesting her at a young

age and progressed to vaginally raping her as time went on. When she was ten or eleven years

old, her mother and Mr. Fortune had an argument, and D.M. told her mother about the abuse. She

testified that her disclosure caused a great deal of discord and she overheard upsetting

conversations between the adults in the household, including Mr. Fortune’s mother. Because she

was greatly upset by their reaction to her disclosure, D.M. recanted and told her mother that the

abuse had just happened in her bad dreams.

       {¶20} D.M. recalled the night that M.F. rushed into her bedroom and told her that Mr.

Fortune had touched her. She testified that Mr. Fortune had been in her bedroom earlier that

evening and had repeatedly attempted to touch her vagina. After she pushed him away and told

him to leave, Mr. Fortune left her room. A short while later, however, M.F. ran into the room,

crying that he had touched her. D.M. testified that she felt guilty as a result the incident because,

had she not rejected Mr. Fortune’s advances, he would have left her sister alone.

       {¶21} D.M. acknowledged that she saw a counselor not long after Mr. Fortune began

abusing her and never disclosed the abuse. She explained that she was very young at the time and

went to the counselor as part of a custody dispute between her mother and biological father. Thus,

the focus of those sessions was not on Mr. Fortune. Apart from the attempt she made to tell her
                                                  7


mother about the abuse, D.M. did not speak to any authority figure about the abuse until an officer

contacted her about M.F.’s disclosure. D.M. then divulged that she too had been abused and met

with the police for an interview.

       {¶22} D.M. completed a written statement at the conclusion of her interview.

Additionally, at the request of the prosecutor, she completed a more detailed written statement just

before trial. The defense was able to point out a number of inconsistencies between her interview,

her two written statements, and her testimony. For example, she recounted instances of oral sex

in her second written statement, but explicitly denied that any oral sex had occurred when she was

asked about it during her police interview. D.M. testified that additional details came to her as

time went on. She testified that she initially found it difficult to recall many of the details because

she had spent so long trying not to remember what happened.

       {¶23} In her second written statement and on cross-examination, D.M. indicated that she

told two friends about Mr. Fortune’s abuse. One of those friends testified at trial. The friend

testified that she met D.M. in eighth grade and the two became close. She also later befriended

M.F. and sometimes spent time alone with her. According to the friend, both D.M. and M.F.

disclosed to her that Mr. Fortune had sexually abused them. She recalled D.M. disclosing in

September 2016 and M.F. disclosing in June 2017, about two months before M.F. told her

psychiatrist. The friend indicated that neither of the girls offered any details about the abuse other

than that it had happened. The friend recalled that M.F.’s disclosure occurred while they were

driving around and M.F. was “just kind of ranting” about things in her life. While ranting, she told

the friend that Mr. Fortune was not even her biological father and that he had molested her.

       {¶24} Captain Anthony Lemmon was the lead investigator in this matter and spoke with

both M.F. and D.M. He testified that he was familiar with Mr. Fortune because he had previously
                                                   8


spoken to him about a sexual relationship he was having with a teenage girl. The captain met Mr.

Fortune at work to discuss M.F.’s accusations and recorded their conversation. During the

conversation, Mr. Fortune said there were many past events he could not recall because he

damaged his memory when he attempted suicide and spent several days in a coma. He told Captain

Lemmon that he knew there was one occasion where he rubbed M.F.’s leg on the family’s couch

because she was having growing pains. Mr. Fortune remembered her suddenly calling him a name

and running off, but he had no memory of touching her vagina. He did not recall ever touching

her inappropriately. Nevertheless, he told the captain more than once that any accusations she had

made against him must be true because he raised her to always be truthful.

       {¶25} D.M. and M.F.’s mother testified about the family’s living arrangements over the

years and her relationship with Mr. Fortune. She testified that the two split up when he started

sleeping with a teenage girl, but that they reconciled when that relationship ended, he attempted

suicide, and he spent several weeks recuperating. The mother claimed that the police never sought

to interview her about the abuse allegations. It was her opinion that D.M. could not have been

raped several times a week for an extended period without her knowledge. The mother agreed that

D.M. accused Mr. Fortune of abuse when she was about ten, but she noted that D.M. had quickly

recanted and assured her nothing had happened. As for M.F., the mother claimed that M.F. never

told her about any abuse and that she first learned of those accusations when M.F. visited her new

psychiatrist. The mother would not say outright that she did not believe her daughters, but she did

testify that she did not believe the extent of their allegations. She noted that other adults frequently

lived with them throughout the years, so there was almost always more than one adult present

when the girls were home. She also noted that were long stretches of time when Mr. Fortune was

away because he was traveling for work. The mother maintained that she had no inclination
                                                  9


anything inappropriate had ever happened and, had there been ongoing abuse, she would have

noticed.

       {¶26} Contrary to the mother’s testimony, Captain Lemmon testified that he asked her to

come to the police station for an interview. He indicated that she cooperated when he spoke with

her at her house, but she did not want to be formally interviewed at the police station. He also

indicated that she “was not forthcoming with information” when he asked her questions.

       {¶27} The defense called two witnesses who lived with D.M., M.F., and their family at

various points. One witness testified that he was the mother’s cousin, he lived with the family for

about four years, and he never suspected the girls were being sexually abused. The second witness

testified that she came to live with the family because her mother was acquainted with Mr. Fortune.

She estimated that she lived with the family for five to six months and never personally observed

any signs of abuse. The second witness testified that she remembered the mother coming to her

one day and sharing with her that D.M. had accused Mr. Fortune of sexual assault. She also

remembered the mother coming to her again and telling her the accusations were not true and were

just a product of bad dreams D.M. had experienced. The second witness testified that she had a

sexual relationship with Mr. Fortune for a year or more and that he was well-endowed. It was her

opinion that, had he raped either D.M. or M.F., they would have displayed some signs of injury or

there would have been some sort of evidence of abuse.

       {¶28} D.M. and M.F.’s younger sister was twelve years old at the time of trial and also

testified for the defense. The younger sister testified that her parents had a tumultuous relationship

and that, around 2016 to 2017, D.M. and M.F. started encouraging their mother to leave Mr.

Fortune. She indicated that D.M. became upset with Mr. Fortune when he began having a sexual

relationship with one of her older friends and when he refused to allow her boyfriend to move into
                                                  10


the house. Meanwhile, M.F. became upset with him because he refused to buy her a car and she

found out he was not her biological father. According to the younger sister, when D.M. and M.F.

realized that their mother needed a good reason to leave Mr. Fortune, they concocted a plan to

accuse him of sexual abuse.

       {¶29} According to the younger sister, D.M. and M.F. believed they could use Mr.

Fortune’s memory loss to their advantage, as he would not be able to recall earlier incidents they

claimed had happened. She also testified that D.M. thought there was a statute of limitations on

rape that had already expired so that there would be no danger of his incarceration. Although her

sisters wanted her to join in their plan, the younger sister testified that she refused to do so. She

stated that, unbeknownst to her sisters at the time, she had been raped one month earlier and wanted

to distance herself from their plan as much as possible. Yet, she claimed that she would still hear

about it as her sisters discussed it within earshot. The younger sister claimed that, after Mr. Fortune

was released on bond in this matter, her sisters approached her “freaking out” because they knew

there were issues with their stories and they needed “to figure out all the loopholes and make

everything fit.” At that point, they decided to fabricate more details, and D.M. provided the

prosecution with a lengthier written statement.

       {¶30} The younger sister testified that she was in counseling and, as a therapeutic tool,

her counselor taught her to journal. She ultimately wrote two typewritten stories, one of which

was a journal and one of which she submitted as a project for school. Both pieces recounted the

abuse allegations and their impact on the family, with the school project manifesting as a

fictionalized account in which names had been changed. In the journal, the younger sister

specifically wrote about her older sisters fabricating the abuse allegations against Mr. Fortune.

According to the younger sister, she never meant for anyone to see her journal, but Mr. Fortune
                                                11


discovered a copy of it on his laptop, read it, and provided it to the defense. The younger sister

testified that, after her journal emerged, D.M. threatened to harm her.

       {¶31} Mr. Fortune hired a private investigator as part of his defense, and the investigator

testified at trial. He testified that Mr. Fortune provided him with the younger sister’s typewritten

stories one month before trial, after which he interviewed the younger sister on at least four

separate occasions. The investigator was aware that the younger sister was working with the police

in a separate matter related to a man who had raped her. Yet, he was not aware that, during that

investigation, she was interviewed several times by the prosecutor and a victim advocate, both of

whom asked her questions about her older sisters.

       {¶32} On rebuttal, the State called the victim advocate who was present when the

prosecutor interviewed the younger sister about the rape she had suffered. The victim advocate

testified that they met with the younger sister multiple times and frequently brought up the case

against Mr. Fortune as it was going forward at the same time and was a huge source of stress for

her. According to the victim advocate, the younger sister stated that Mr. Fortune was the only

member of her family with whom she had a close relationship and she “never [spoke] to her sisters

in any way in regards to the sexual abuse they incurred.” The younger sister told the victim

advocate that she hoped the allegations were not true because she “would be very devastated if

[Mr. Fortune] went to jail or prison * * *.”

       {¶33} Mr. Fortune argues that his convictions are against the manifest weight of the

evidence. He notes that the trial court acquitted him of the charges related to D.M. due to the

number of inconsistencies in her story. Even so, he argues, her testimony directly contributed to

his convictions on the charges related to M.F. He argues that there was no physical evidence to

support his convictions and, apart from the testimony of the girls, the testimony weighed in his
                                                  12


favor. He notes that the girls’ own mother testified that it was impossible they were abused in the

way they claimed, given her observations, his work schedule, and the number of people who

frequently stayed at the house. Further, he argues that the younger sister’s testimony irrefutably

showed that D.M. and M.F. fabricated their accusations. Mr. Fortune avers that it was illogical for

the trial court to refuse to believe one accuser only to find the other credible. As such, he asserts

that the court lost its way by convicting him.

       {¶34} Upon review, we cannot conclude that the trier of fact clearly lost its way when it

found Mr. Fortune guilty of raping and sexually battering M.F. See Otten, 33 Ohio App.3d at 340.

M.F. described two incidents where Mr. Fortune either performed oral sex on her or touched her

vagina. D.M. remembered M.F. seeking her out after one of those incidents, and their friend also

remembered M.F. telling her that Mr. Fortune had molested her. Although the younger sister

claimed that D.M. and M.F. had fabricated their accusations, there was testimony that she was

very close to Mr. Fortune and upset about the prospect of him going to prison. There also was

testimony that she had told her victim advocate she was not close to her sisters and had never

talked to them about their abuse allegations. As the trier of fact, the court was in the best position

to consider the conflicting evidence and reasonably could have chosen to disbelieve the testimony

of the younger sister. See State v. Andrews, 9th Dist. Summit No. 29260, 2020-Ohio-2703, ¶ 31

(trier of fact in best position to evaluate witness credibility). Likewise, the court could have chosen

to disregard the mother’s assurances that ongoing abuse had not occurred, given the testimony that

she “was not forthcoming with information” and had not been inclined to believe her daughters

when they were younger and first disclosed the abuse. Mr. Fortune specifically told Detective

Lemmon that any accusations M.F. had made against him must have been true because he raised

her to always be truthful. His convictions are not against the weight of the evidence simply because
                                                  13


the trial court chose to believe the State’s witnesses and its version of the events. See State v. Hill,

9th Dist. Summit No. 26519, 2013-Ohio-4022, ¶ 15 (“This Court will not overturn the trial court’s

verdict on a manifest weight of the evidence challenge only because the trier of fact chose to

believe certain witness’ testimony over the testimony of others.”).

        {¶35} Although the trial court did not convict Mr. Fortune of the charges related to D.M.,

it indicated that it “truly believe[d] that something happened” to her and was “fairly convinced”

of those allegations. The court simply found that the State fell short of its burden on those counts.

As the trier of fact, it was the court’s prerogative “to believe all, part, or none of the testimony of

each witness.” Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. The

court, therefore, could have chosen to rely on portions of D.M.’s testimony for purposes of the

counts related to M.F. See id. The court’s decision to do so did not render Mr. Fortune’s verdicts

inconsistent and, in any event, “even inconsistent responses on separate counts will not justify

overturning a verdict.” See State v. Fridley, 9th Dist. Wayne No. 17AP0029, 2019-Ohio-3412, ¶

22. Upon review, Mr. Fortune has not shown that this is the exceptional case where the evidence

weighs heavily against his convictions. See Otten at 340. Accordingly, his fourth assignment of

error is overruled.

                                      Assignment of Error II

       [Mr. Fortune’s] right to a fair trial was compromised by prosecutorial
       misconduct in failing to investigate exculpatory evidence and instead directing
       a witness to create a new statement[.]

       {¶36} In his second assignment of error, Mr. Fortune argues that prosecutorial misconduct

deprived him of a fair trial. Specifically, he argues that the prosecutor engaged in misconduct

when he failed to have the police investigate the younger sister’s claim that D.M. and M.F. lied

and, instead, instructed D.M. to write a more detailed statement. We reject his argument.
                                                14


       {¶37} In deciding whether a prosecutor’s conduct rises to the level of prosecutorial

misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the

defendant’s substantial rights were actually prejudiced. State v. Smith, 14 Ohio St.3d 13, 14

(1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper

conduct deprives the defendant of a fair trial.” State v. Knight, 9th Dist. Lorain No. 03CA008239,

2004-Ohio-1227, ¶ 6, citing State v. Carter, 72 Ohio St.3d 545, 557 (1995). The defendant must

show that, but for the prosecutor’s misconduct, the trier of fact would not have convicted him.

State v. Lollis, 9th Dist. Summit No. 24826, 2010-Ohio-4457, ¶ 24.

       {¶38} If a defendant fails to object to alleged prosecutorial misconduct, he forfeits all but

plain error. State v. Rivera, 9th Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 24. Accord State

v. Dawson, 9th Dist. Summit No. 28311, 2017-Ohio-2833, ¶ 36. Under Crim.R. 52, “[p]lain errors

or defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” Nevertheless, “[t]his Court will not ‘fashion a plain error argument on [a

defendant’s] behalf and then address it sua sponte.’” State v. Rouse, 9th Dist. Summit No. 28301,

2018-Ohio-3266, ¶ 15, quoting State v. Patterson, 9th Dist. Lorain No. 16CA011035, 2017-Ohio-

8196, ¶ 24.

       {¶39} The record reflects that Mr. Fortune discovered the younger sister’s writings on his

computer about a month before trial and turned them over to his counsel. His counsel then gave

the writings to their private investigator, and he repeatedly interviewed the younger sister. The

defense did not provide her writings to the prosecution until less than two weeks before trial. The

prosecutor then met with D.M. and M.F. to discuss what the younger sister had written. Rather

than provide the younger sister’s writings to Captain Lemmon, the prosecutor ultimately asked

D.M. to write another statement. According to Mr. Fortune, the prosecutor ignored his duty to
                                                15


pursue exculpatory evidence when he failed to give the younger sister’s writings to the police and

instead told D.M. to provide additional evidence.

       {¶40} The record reflects that Mr. Fortune never raised the issue of prosecutorial

misconduct at the trial court level. Because he failed to do so, he forfeited his argument save for

a claim of plain error. See Rivera at ¶ 24; Dawson at ¶ 36. Mr. Fortune has not argued plain error

on appeal, and this Court is not inclined to construct that argument on his behalf. See Rouse at ¶

15, quoting Patterson at ¶ 24. See also State v. Bortner, 9th Dist. Lorain No. 02CA008189, 2003-

Ohio-3508, ¶ 22. Further, he has made no attempt to demonstrate how his substantial rights were

actually prejudiced by the prosecutor’s conduct. See Smith, 14 Ohio St.3d at 14. The defense had

access to the younger sister’s writings two weeks before the prosecutor and used that time to

investigate her claims. Mr. Fortune chose not to provide those writings to the police himself, and

it is unclear what additional exculpatory evidence, if any, he believes the police would have

uncovered had the prosecutor asked Captain Lemmon to investigate the writings. Because Mr.

Fortune forfeited his argument and, in any event, has not attempted to explain how he was

substantially prejudiced by the prosecutor’s actions, this Court rejects his argument. Mr. Fortune’s

second assignment of error is overruled.

                                     Assignment of Error I

       [Mr. Fortune] was deprived of his fair trial when the presiding judge, in a
       bench trial, failed to disclose to defense counsel knowledge of prior allegations
       which the trial judge found pertinent[.]

       {¶41} In his first assignment of error, Mr. Fortune argues that he was deprived of a fair

trial due to bias on the part of the trial judge. He argues that the judge was influenced by his

knowledge of facts outside the record and failed to disclose those facts to defense counsel until

sentencing. Because the judge’s impartiality reasonably could have been questioned, Mr. Fortune
                                                 16


avers, his failure to recuse himself offended his due process rights. Upon review, we reject Mr.

Fortune’s argument.

       {¶42} The issue of whether a conviction must be vacated due to bias or prejudice on the

part of a trial judge is one that lies exclusively within the jurisdiction of the Chief Justice of the

Ohio Supreme Court. See State v. Polke, 9th Dist. Medina No. 18CA0061-M, 2019-Ohio-904, ¶

7; R.C. 2701.031. This Court lacks authority “to void a trial court’s judgment on the basis of

personal bias or prejudice on the part of the trial judge * * *.” State v. Hunter, 151 Ohio App.3d

276, 2002-Ohio-7326, ¶ 18 (9th Dist.), citing Beer v. Griffith, 54 Ohio St.2d 440, 441-442 (1978).

Nevertheless, we may determine whether conduct on the part of a trial judge denied a criminal

defendant due process of law. See, e.g., State v. Powell, 9th Dist. Lorain No. 12CA010284, 2017-

Ohio-4030, ¶ 8-13. “A judge is presumed to follow the law and not to be biased, and the

appearance of bias or prejudice must be compelling to overcome these presumptions.” In re

Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, ¶ 5.

       {¶43} According to Mr. Fortune, the trial judge demonstrated bias against him when he

admitted that he had knowledge of a presentence investigation report (“PSI”) that was completed

in 1996. He claims that the judge admitted to having read the report in 1999 when it sentenced

him to three years in prison on an unrelated matter. Mr. Fortune avers that the contents of that PSI

were never made available to him or his counsel, and the court never informed them that he was

intimately familiar with its contents. Because the judge possessed that knowledge about Mr.

Fortune before acting as the trier of fact in this matter and before sentencing him, he argues that

the judge’s statements about the PSI’s contents raised significant concerns about his impartiality.

       {¶44} It is undisputed that no PSI was completed in this case. At sentencing, however,

the trial judge made the following statements:
                                                  17


          The court does have a [PSI] that was done in 1996, which has biographical
          information, social history regarding Mr. Fortune up to that date. That [PSI]
          involved charges of breaking and entering and theft, which the other judge, at that
          time, sentenced Mr. Fortune to prison for 3 years. I picked up a case 3 years later
          involving an unauthorized use of a motor vehicle, to which he pleaded guilty in
          1999 and I gave him concurrent time * * *. That [PSI] contains information about
          Mr. Fortune’s juvenile record, some of which, I think should be mentioned, I think
          it’s pertinent.

The court then went on to discuss that information. It is not entirely clear from the court’s

statements whether it reviewed one PSI from 1996 or one from 1996 and another from 1999. The

record does not contain the PSI(s), and Mr. Fortune did not object to the court’s reference to the

PSI(s).

          {¶45} Upon review, this Court rejects Mr. Fortune’s argument that bias on the part of the

trial judge denied him a fair trial. First, the record does not contain the PSI(s) that the court

referenced during sentencing, so this Court cannot examine the information contained therein. It

was Mr. Fortune’s duty to ensure that the appellate record contained the PSI(s), and he failed to

fulfill that duty. See State v. Collins, 9th Dist. Lorain No. 19CA011462, 2020-Ohio-317, ¶ 14.

Second, Mr. Fortune did not object to the trial judge’s statements, his consideration of the PSI(s),

or his alleged bias. His failure to object resulted in a forfeiture and, once again, he has not argued

plain error on appeal. See State v. Piatt, 9th Dist. Wayne. No. 19AP0023, 2020-Ohio-1177, ¶ 45.

Finally, if Mr. Fortune believed the trial judge was prejudiced or had exhibited bias, he had the

ability to file an affidavit of disqualification with the Ohio Supreme Court. See State v. Smetana,

9th Dist. Lorain No. 12CA010252, 2013-Ohio-2376, ¶ 10. This Court “has no authority to render

a decision with regard to disqualification * * * or to void a trial court’s judgment on the basis of

personal bias or prejudice on the part of the trial judge * * *.” Hunter, 151 Ohio App.3d 276,

2002-Ohio-7326, at ¶ 18, citing Beer, 54 Ohio St.2d at 441-442. Accordingly, Mr. Fortune’s first

assignment of error is overruled.
                                                18


                                                III.

       {¶46} Mr. Fortune’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT




TEODOSIO, J.
CONCURS.
                                                 19


CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶47} While I concur in the majority’s resolution of this appeal, I write separately to note

that I would overrule the first assignment of error on the basis that Fortune has not demonstrated

that his due process rights were violated at trial. I concur in the remainder of the opinion.


APPEARANCES:

DONOVAN HILL, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.
