[Cite as State v. Pierce, 2014-Ohio-1505.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. Willam B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
KYLE D. PIERCE                               :       Case No. 13-CA-00008
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Perry County Court
                                                     of Common Pleas, Case No.
                                                     12-CR-0091



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    April 7, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

NANCY NASH RIDENOUR                                  STEVEN P. SCHNITTKE
Assistant Prosecuting Attorney                       Schnittke & Smith
111 North High Street, P.O. Box 569                  114 S. High Street, P.O. Box 536
New Lexington, OH 43764                              New Lexington, OH 43764
Perry County, Case No. 13-CA-00008                                                        2




Baldwin, J.

     {¶1}     Defendant-appellant Kyle Pierce appeals his conviction and sentence from

the Perry County Court of Common Pleas on one count of unlawful sexual conduct with

a minor. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

     {¶2}     On November 16, 2012, the Perry County Grand Jury indicted appellant

on one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04 (A)

and (B)(1), a felony of the fourth degree. At his arraignment on December 7, 2012,

appellant entered a plea of not guilty to the charge.

     {¶3}     On May 29, 2013, the parties filed a Stipulation that was signed by

appellant. The parties stipulated that, on or about January 27, 2012 through February

10, 2012, the alleged victim was 13 years old and appellant was 20 years old, that the

alleged victim was not appellant’s spouse, and that the alleged victim and appellant

engaged in sexual conduct on or about January 27, 2012 through February 10, 2012.

Thereafter, a jury trial commenced on such date.

     {¶4}     At the trial, the alleged victim, C.S., testified that she was in eighth grade

during January and February of 2012 and attended Fairfield Union Junior High. She

testified that she met appellant through her cousin Drake who was friends with

appellant. C.S. testified that during January and February of 2012, she had a Facebook

page and that on her profile page, she listed her school as Fairfield Union Junior High.

According to C.S., she and appellant had conversations on Facebook through instant
Perry County, Case No. 13-CA-00008                                                     3


messaging. C.S. testified that she talked with appellant about going to school, doing

chores at home and other matters.

     {¶5}    Appellant and C.S. arranged to meet on a weekend during the above time

frame because C.S.’s mother worked on Fridays, Saturdays and Sundays in the

morning. C.S. testified that she asked her mother if she could go and stay with her

friend Autumn and that her mother consented. C.S. indicated that she told her mother

she was going to be at Autumn’s for the whole weekend and gave her mother the

telephone number of appellant’s mother rather than Autumn’s mother.            After her

mother left for work, C.S. got her clothes together and walked down to a gas station

where she was picked up by appellant. When appellant picked her up, John

Brickhouse and his girlfriend Jennifer were with him.            The four then went to

Brickhouse’s house and spent the night. C.S. testified that she did not have sex with

appellant on the Friday night.

     {¶6}    When asked during direct examination if she ever told appellant her age,

C.S. testified that she told him that she was 13 years old. She denied that she initially

told appellant that she was a different age. She also testified that when appellant and

C.S. went to appellant’s mother’s house, appellant told his mother that C.S. was 18

years old. According to her, appellant’s mother had asked about C.S.’s age. C.S.

agreed that she never corrected appellant in front of his mother and testified that when

she asked appellant why he told his mother she was 18, he said that his mother would

get mad if she knew C.S. was younger than 18 years old. C.S. also indicated that she

was afraid to tell appellant's mother that she was only 13 years old. C.S. also testified

that the two of them had sex that night at Brickhouse’s house.
Perry County, Case No. 13-CA-00008                                                        4


     {¶7}    After that weekend, appellant and C.S. continued instant messaging back

and forth and arranged a second meeting the beginning of February of 2012. The two

had sex again. C.S. testified that she never told appellant’s parent’s or friends that she

was 18 years old, but that she tried to tell John Brickhouse that she was 13 years old.

When appellant came into the room, the conversation ended. According to C.S.,

Brickhouse “had somewhat of an idea” how old she was. Trial Transcript at 76. While

C.S. and appellant arranged another meeting for the following weekend, C.S.’s mother

became aware of what was happening. When asked, C.S. testified that she never told

appellant what grade she was in but that she discussed going to school and doing

chores at home with him during their Facebook conversations.

     {¶8}    On cross-examination, C.S. testified that she tried to tell John Brickhouse

in private about her age because she thought that he should know but believed that if

she tried to talk to him in front of appellant, appellant would stop her. She testified that

she used to smoke cigarettes and would take them from her mother or from people

older than her who smoked. C.S. also testified that she met appellant’s grandmother

and that his grandmother never asked her how old she was and she never said. She

admitted that she never told John Brickhouse, Jennifer, or anyone in appellant’s family

how old she was until the night that her mother caught her. She admitted on cross-

examination that she never told them that she was 13, 16 or 18 years old and that

appellant was the only one who actually knew that she was 13. She also admitted that

she lied to her mother about her whereabouts for the three weekends.
Perry County, Case No. 13-CA-00008                                                     5


     {¶9}    On redirect, C.S. testified that she did not tell anyone else her age

because she was worried that she would not be able to be with appellant. She again

testified that appellant knew her age.

     {¶10}   At the trial, John Brickhouse testified that appellant used to live with him

and lived with him during the end of January through the beginning of February of

2012. He testified that he had a prior conviction for gross sexual imposition and was a

registered sex offender. Brickhouse testified that he had communicated with C.S. on

Facebook and that her Facebook page stated that she was 18 and still in junior high.

He testified that C.S. told him that she was 16 years old, but that when he saw her

picture on Facebook, she looked younger than 16. Brickhouse also testified that when

he went with appellant during the last weekend of January of 2012 to pick C.S. up, she

appeared to be 13 or 14 years old. According to Brickhouse, he told appellant that he

did not think that C.S. was 18 and was at most 15 years old and that C.S. had told him

that she was 16, but that appellant kept telling him that C.S. was 18 years old.

Brickhouse testified that C.S. did not talk like she was 18 and acted in an immature

manner. He testified that she “slipped up by revealing that she’s still in junior high,

eighth grade or something like that” and that no one else caught the slip but him. Trial

Transcript at 100. Appellant was not present when she said she was in eighth grade,

but Brickhouse testified that he told appellant what C.S. had said on multiple

occasions.

     {¶11}   Brickhouse further testified that when he went over to appellant’s house,

appellant introduced C.S. to his family and that both appellant and C.S. told them that

she was 18 years old. He also testified that he was scared when he learned C.S.’s
Perry County, Case No. 13-CA-00008                                                      6


mother had found out the deception because he was on parole and was not permitted

to be around anyone younger than 18 years old.

     {¶12}   On cross-examination, Brickhouse testified that when he first started

talking to C.S. on Facebook, her profile said that she was 18 years old. He testified

that he observed her smoking cigarettes but never saw her purchase any.

     {¶13}   Sergeant Daniel Corder of the Perry County Sheriff’s Office testified he

was called to investigate an alleged rape. A caseworker told him C.S.’s name and told

him that C.S. had had consensual sex with a 20 year old male. The male was

appellant. Sergeant Corder testified that he talked with C.S. on February 10, 2012 and

that she looked young and was wearing glasses and a T-shirt which he testified were

appropriate for her age. When he went to appellant’s house, both appellant and his

mother told him that C.S. had said that she was 18 years old.

     {¶14}   Sergeant Corder was asked if he had a chance to observe C.S.’s

Facebook profile page. He testified that he did and that her personal information stated

that she was 18, but that it also said that she attended Fairfield Union Junior High

School. He testified that you had to be 18 years of age to obtain a Facebook account,

but that juveniles often lied about their age in order to obtain one. The Sergeant further

testified that when he was interviewing C.S., she seemed very immature to him.

     {¶15}   Appellant testified at trial in his own defense. He testified that his mother

and grandmother asked C.S. how old she was and that she told them that she was 18

years old and would be 19 in a few weeks. He testified that when he later found out

how old C.S. was, he started freaking out. He also testified that he asked C.S. when

she was getting an ID and that she told him that she was getting one in a couple of
Perry County, Case No. 13-CA-00008                                                      7


weeks so that she could buy her own cigarettes. He denied that C.S. ever told him that

she was 13 or 16 years old. He testified that she told him that she was 18 years old

and that he saw her age listed as 18 on Facebook. Appellant further testified that he

felt that C.S. had tricked him. He also testified that C.S. told him that she had smoked

marijuana with her mother and her mother’s boyfriend.

     {¶16}   On cross-examination, appellant denied that C.S. ever talked about school

during their conversations, but also testified that C.S. told him that she was a senior in

high school getting ready to graduate. He then admitted that he had conversations

about school with C.S. and testified that Fairfield Union Junior High was listed on her

Facebook page. Appellant denied that C.S. acted immaturely or in a childish manner

except when she was messed up. He testified that he “didn’t think she was underage

though because I know a lot of people that are older than me that looks like they are

12.” Trial Transcript at 149. When he was asked why he questioned C.S. about her

age, appellant testified that a lot of people liked to lie about their age and he had to

make sure that C.S. was 18 years old. The following is an excerpt from appellant’s

testimony:

     {¶17}   “Q:    You stated in your testimony that after the first weekend, you were

speaking with her on the phone or texting, and you – your own words, you stated that

you were trying to find out how old she was?

     {¶18}   “A:    I wanted to hear it from her mom.

     {¶19}   “Q:    Why would you want to hear it from her mom if you didn’t question

how old she was?

     {¶20}   “A:    Because my mom told me I should figure out her actual age.
Perry County, Case No. 13-CA-00008                                                   8


     {¶21}   “Q:    Okay.   So other people had some feelers out that perhaps she

wasn’t as old as what she was saying, is that true?

     {¶22}   “A:    Well, my mom didn’t really second guess it either. She said --

     {¶23}   “Q:    I’m going to stop you. Your mom told you, yes or no, that you

should probably find out how old she is, yes or?

     {¶24}   “A:    Yes.

     {¶25}   “Q:    And that’s when you were trying to do - - after you had already met

her, you were questioning how old she was?

     {¶26}   “A:    Yes.”

     {¶27}   Trial Transcript at 151-152.

     {¶28}   Appellant admitted that he did have a question about C.S.’s age.

     {¶29}   Linda Pierce, appellant’s grandmother, testified that when she asked C.S.

how old she was during their first meeting, C.S. told her that she was 18 years old and

was graduating that spring. She testified that she saw C.S. smoke her own cigarettes

and that, the two times she saw C.S., she had no reason to believe that she was not 18

years old. According to her, C.S. had her boobs hanging out, had makeup on and had

her hair done like 18 year old girls do. She also testified that C.S. told her that she

smoked and drank with her mother.

     {¶30}   On cross-examination, Linda Pierce testified that she asked C.S. how old

she was because she wanted to know where C.S.’s mother was. She told appellant

that she wanted C.S. out of there because she did not like her “boobs flopping out and

sitting around there going outside smoking..” Trial Transcript at 165.
Perry County, Case No. 13-CA-00008                                                       9


     {¶31}   Sheri Pierce, appellant’s mother, also testified at trial. She testified that

when she asked C.S. how old she was, C.S. told them that she was 18 years old and

she did not second guess her. She testified that C.S. looked 18 because she had her

hair done, was wearing makeup and showed cleavage. She further testified that she

figured that C.S. was 18 because she was smoking and had her own cigarettes.

     {¶32}   On cross-examination, Sheri Pierce denied that, after the first weekend,

she told appellant that he better find out how old C.S. was, but then testified that she

guessed that she did make such a statement. When asked why she did, she testified

that it was because of the way girls dressed and acted. She denied having an inkling

that C.S. was not as old as she claimed. Sheri Pierce testified that she had a 13 year

old daughter and that her daughter did not dress like C.S. She also testified that she

might have questioned C.S.’s age after the first time she met her, but did not recall.

     {¶33}   At the conclusion of the evidence and the end of deliberations, the jury, on

May 29, 2013, found appellant guilty of unlawful sexual conduct with a minor. Pursuant

to a Judgment Entry filed on July 31, 2013, appellant was sentenced to ten (10)

months in prison. Appellant also was labeled a Tier 2 Sex Offender.

     {¶34}   Appellant now raises the following assignment of error on appeal:

     {¶35}   TRIAL COUNSEL WAS INEFFECTIVE IN PROVIDING ASSISTANCE TO

DEFENDANT AT HIS TRIAL.



                                               I

     {¶36}   Appellant, in his sole assignment of error, argues that he received

ineffective assistance of trial counsel. We disagree.
Perry County, Case No. 13-CA-00008                                                      10


     {¶37}   Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; whether counsel's performance fell

below an objective standard of reasonable representation and was violative of any of

his essential duties to the client. If we find ineffective assistance of counsel, we must

then determine whether or not the defense was actually prejudiced by counsel's

ineffectiveness such that the reliability of the outcome of the trial is suspect. This

requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different. Id. Trial

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

of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 1998-

Ohio-343, 693 N.E.2d 267. Furthermore, both prongs of the Strickland test need not be

analyzed if the claim of ineffective assistance can be resolved under one prong. State

v. Doss, 4th Dist. Gallia No. 09CA20, 2012–Ohio–883, ¶ 16, citing State v. Madrigal, 87

Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52.

     {¶38}   Appellant was convicted of sexual conduct with a minor, a violation of

R.C. 2907.04(A), which states: “No person who is eighteen years of age or older shall

engage in sexual conduct with another who is not the spouse of the offender, when the

offender knows the other person is thirteen years of age or older but less than sixteen

years of age, or the offender is reckless in that regard.” The definition of “recklessness”

is found in R.C. 2901.22(C), which states:
Perry County, Case No. 13-CA-00008                                                     11


     {¶39}   “(C) A person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to

cause a certain result or is likely to be of a certain nature. A person is reckless with

respect to circumstances when, with heedless indifference to the consequences, he

perversely disregards a known risk that such circumstances are likely to exist.”

     {¶40}   Appellant concedes that trial counsel attempted to show that the victim in

this case represented that she was 18 years old, but argues that trial counsel was

ineffective is failing to present how the victim physically appeared on each occasion

that she was with appellant. He contends that trial counsel, therefore, failed to properly

develop his defense that he was not reckless. We disagree.

     {¶41}   As is set forth above, there was testimony from both Linda Pierce,

appellant’s grandmother, and Sheri Pierce, his mother, that C.S. had makeup on, had

her hair done, and was showing cleavage. Moreover, the victim in this case testified at

trial and the jury had the chance to view her in person. Thus, there was testimony as to

C.S.’s physical appearance.

     {¶42}   Moreover, we find that appellant was not prejudiced by such alleged

ineffectiveness because there was overhwelming evidence produced at trial to show

appellant was reckless with regard to the victim's age. As is stated above, C.S.’s

Facebook page stated that she attended junior high. She herself testified that she told

appellant she was 13 years old. During her Facebook conversations with appellant,

she talked about school and doing chores at home where she lived with her mother.

John Brickhouse testified that C.S. had told him that she was 16 and that, when he

saw her picture on Facebook, she appeared even younger. Upon meeting her in
Perry County, Case No. 13-CA-00008                                                   12


person, he thought that she appeared to be 13 or 14 years old and told appellant that

he thought that she was 15 years old at most. He also testified that C.S. was childish

and immature. Appellant admitted that after the first weekend, he was attempting to

find out how old C.S. was, indicating that he himself had concerns about her age.

Appellant further testified that after first meeting C.S., his mother questioned how old

she was. Appellant’s mother testified that she wondered about C.S.’s age because

she wondered why C.S. was away from home three weekends in a row. Appellant’s

grandmother also questioned C.S.’s age. In short, there was overwhelming evidence of

recklessness.

      {¶43}   Appellant’s first assignment of error is, therefore, overruled.

      {¶44}   Accordingly, the judgment of the Perry County Court of Common Pleas is

affirmed.


By: Baldwin, J.

Hoffman, P.J. and

Farmer, J. concur.
