[Cite as State v. Maerlender, 2011-Ohio-2515.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95071




                                    STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                       WILLIAM R. MAERLENDER
                                                       DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-520988
                                       2


      BEFORE:      Rocco, J., Kilbane, A.J., and Blackmon, J.

      RELEASED AND JOURNALIZED:                 May 26, 2011

                                       -i-

ATTORNEY FOR APPELLANT

Jennifer J. Scott
The Rockefeller Building
614 W. Superior Avenue, Suite 1402
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant     William Maerlender appeals from his

convictions after a jury found him guilty of two counts of rape, one count of

kidnapping, and one count of gross sexual imposition (“GSI”).

      {¶ 2} Appellant presents three assignments of error.        He claims his

trial counsel provided ineffective assistance in several respects, the trial court
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made improper evidentiary rulings, and his convictions are not supported by

either sufficient evidence or the manifest weight of the evidence.

      {¶ 3} Upon a review of the record, this court cannot find that any of

appellant’s claims have merit. Therefore, his convictions and sentence are

affirmed.

      {¶ 4} Appellant’s convictions result from an incident that occurred over

the night of July 30 through the early morning hours of the next day. The

victim, AD,1 provided the following account at appellant’s trial.

      {¶ 5} In April, 2008, AD moved with her boyfriend CL to an apartment

complex located in Berea, Ohio. At that time, both of them had been charged

in a drug case; AD wanted to “start over”2 at a new place. They shared the

apartment with another young man, EJ, with whom they both worked. AD

also made acquaintance over time with other residents in the complex,

including appellant and his girlfriend, Heather.        AD eventually viewed

appellant as a friend, but CL and appellant became antagonistic toward each

other after an altercation occurred between them.




      1 Inaccordance with this court’s policy of protecting the privacy of sexual
assault victims, she and her immediate family members will be referred to by
initials.
      2Quotes   indicate testimony given at trial.
                                     4

      {¶ 6} In May 2008, AD applied in her criminal case for the “Early

Intervention Program” (“EIP”).    She understood she could no longer use

drugs after she made her application. Subsequently, she learned she was

pregnant; this development made her more determined to forgo substances

that might harm her baby.

      {¶ 7} However, AD missed a pretrial hearing scheduled for July 23,

2008, and became aware that a warrant had been issued for her arrest. She

asked her attorney to intercede with the court on her behalf about the

situation and waited to hear whether he was successful.

      {¶ 8} On the night of July 30, 2008, AD and CL had an argument.     The

argument remained unresolved as CL left the apartment to seek medical

treatment for a back problem. AD decided the two of them needed a “cooling

off” period, so at approximately 10:00 p.m. she also left the apartment,

proceeding to appellant’s unit.

      {¶ 9} Appellant and Heather welcomed AD.            After hearing AD’s

explanation for her visit, appellant told her she could sleep on one of their

couches if she wanted to. AD sat down with them to watch television. As

the evening passed, AD observed appellant and Heather “were drinking,” but

she did not want to be “tempted by anything.”       Thus, although Heather

ingested a “yellow pill” that appellant offered, AD surreptitiously “went into
                                     5

the bathroom” with the one appellant provided to her and “flushed it down

the toilet” instead of taking it. Appellant told AD the pill would help her

“feel more comfortable,” and AD did not want to hurt his feelings by rejecting

it outright. AD eventually fell asleep on the couch.

      {¶ 10} Sometime later, AD awoke to find her “bra had been pulled up

and [appellant’s] fingers were in [her] vagina and he was leaning over the

side of the couch.” Appellant was “groping” one of her breasts with one hand,

while his other was “[d]own [her] pants,” inside her underwear. AD was

“stunned” at the discovery, and asked appellant “what he was doing.”

Appellant seemed “shocked” to find her awake; he answered that he was “just

rubbing” her.

      {¶ 11} AD arose from the couch, rearranged her clothing, and moved

toward the front door; her aim was to get herself “out and away from the

situation without further being harmed.” Appellant moved in front of her to

block the door. He reassured her that “everything’s okay,” and that she still

could sleep there. AD told him she had to leave, reaching her hand toward

the door. In the face of her insistence, appellant stood aside, but preceded

her down the stairway. Although he repeated that she could remain, AD fled

home.
                                     6

      {¶ 12} AD reported what occurred to CL before he could enter the

building; he described her demeanor as “a wreck.” Although AD’s experience

made CL angry enough to try to confront appellant, CL received no answer

when he “pounded” on appellant’s door. Moreover, CL and AD agreed that

she should not report the incident because of her outstanding arrest warrant.

      {¶ 13} On September 9, 2008, however, the incident came to light.

Berea police detective Dennis Bort arrived at the apartment building

investigating a theft report, and received information that led him to seek an

interview with CL. After CL spoke to Bort, CL asked if another crime could

be reported.

      {¶ 14} Bort spoke with AD as a result of CL’s inquiry, thus commencing

an investigation of the sexual assault. AD provided an oral and a written

statement. She also agreed to meet with appellant and to wear a “wire” in

order to record their conversation. In talking about the incident with AD,

appellant told her he did not remember doing anything to her, but if he did,

he was “sorry.”

      {¶ 15} Bort subsequently interviewed appellant and attempted to speak

to Heather. Appellant denied both committing the offenses and apologizing

to AD.   Heather appeared “sluggish” and “maybe a little hung over”; she

“declined to talk” at that time. Although appellant later indicated to Bort
                                      7

that Heather might be available for a further interview, appellant never

followed up on this possiblity.

      {¶ 16} On February 12, 2009, appellant was indicted in this case on four

counts.   Counts 1 and 2 charged him with rape in violation of both R.C.

2907.02(A)(2) and (A)(1)(c), Count 3 charged him with kidnapping with a

sexual motivation specification, and Count 4 charged him with GSI.

Appellant retained counsel to represent him.

      {¶ 17} The case originally was scheduled for trial on June 8, 2009.    The

record reflects that the prosecutor filed her witness list on April 20, 2009; one

of the names on the list was “Miranda Vermes [sic].”           Trial had to be

continued for various reasons thereafter, however; eventually, trial was

scheduled for March 22, 2010.

      {¶ 18} On that date, the trial court noted on the record that defense

counsel raised an issue of a possible conflict in his representation of

appellant. Defense counsel explained under oath that a woman named “Mrs.

Davis” had approached him to represent her daughter in an unrelated case,

and that he had conducted one meeting with her and her daughter to discuss

the matter.

      {¶ 19} Defense counsel further stated that it was not until March 19,

2010, upon noticing the name “Miranda Bermes” on the state’s subpoena list,
                                       8

that he became aware that the prosecutor intended to call his new client’s

daughter as a witness at appellant’s trial. Defense counsel assured the court

that nothing about appellant’s case had been mentioned in his meeting with

Davis and Bermes.

      {¶ 20} In discussing the matter with defense counsel, the trial court

ordered counsel to withdraw from Bermes’s representation and abjured him

from utilizing any information he had gained from Bermes in his

cross-examination of her.   Defense counsel pledged to comply with those

directives.   Appellant had no objection to defense counsel’s continued

representation. The case proceeded to trial.

      {¶ 21} The state presented the testimony of AD, her mother, CL,

Bermes, and Bort. After the trial court denied his Crim.R. 29 motion for

acquittal, appellant testified in his own behalf.     He also presented the

testimony of his friend Herbert Ebner.       Appellant denied committing the

offenses, and asserted that CL put AD up to making the allegations as a way

to extort money from appellant. Ebner indicated that on one occasion, he

witnessed CL “yelling at” appellant.

      {¶ 22} The jury ultimately found appellant guilty on all counts.    At

sentencing, the prosecutor acknowledged that Counts 1, 2, and 3 were allied

offenses pursuant to R.C. 2941.25(A), and left it “up to the court” to choose
                                          9

the one on which to impose sentence. The trial court merged Counts 2 and 3

into Count 1, and imposed concurrent terms of five years on Count 1 and one

year on Count 4.          The trial court also classified appellant as a “Tier III”

sexual offender.

         {¶ 23} Appellant appeals from his convictions with three assignments of

error.

         {¶ 24} “I.     The appellant was denied his constitutional right of

due process based upon ineffective assistance of counsel.

         {¶ 25} “II.    The trial court improperly denied the admission of

relevant testimony in contravention of appellant’s right to due

process.

         {¶ 26} “III.    The convictions of the appellant were against the

manifest weight of the evidence and the evidence was insufficient as

a matter of law.”

         {¶ 27} In his first assignment of error, he claims his retained attorney

provided such ineffective assistance as to deny his constitutional rights.

Appellant contends that because counsel failed to realize Bermes was a

state’s witness, he did not adequately prepare for trial, because counsel failed

to object to the prosecutor’s question to Bort about whether appellant “made

any efforts to bring [Heather] down to the station to talk to” Bort, counsel did
                                    10

not protect appellant’s right to remain silent, and because counsel was unable

to introduce evidence of CL’s specific threats to appellant, counsel did not

provide appellant a full defense.

      {¶ 28} A reviewing court will not deem counsel’s performance ineffective

unless a defendant can show both that counsel’s performance fell below an

objective standard of reasonable representation and that prejudice arose from

the deficient performance. State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373, paragraph one of the syllabus.

      {¶ 29} In order to show prejudice, a defendant must prove that, but for

counsel’s errors, a reasonable probability exists that the trial result would

have been different. Id. at paragraph two of the syllabus. Judicial scrutiny

of a lawyer’s performance must be highly deferential.         State v. Moon,

Cuyahoga App. No. 93673, 2010-Ohio-4483, citing State v. Sallie, 81 Ohio

St.3d 673, 1998-Ohio-343, 693 N.E.2d 267. This court will not second-guess

matters of trial strategy.   State v. Clayton (1980), 62 Ohio St.2d 45, 402

N.E.2d 1189, certiorari denied Clayton v. Ohio (1980), 449 U.S. 879, 101 S.Ct.

227, 66 L.Ed.2d 102.

      {¶ 30} The record of this case fails to support a conclusion that

appellant’s defense counsel was unprepared for trial. Defense counsel took

part in many pretrial hearings during the thirteen months that the case was
                                       11

pending. The prosecutor misspelled Bermes’s name in her original response

to the defense request for discovery, and counsel found the error when

sending out subpoenas for potential defense witnesses. When the trial court

asked appellant on the day of trial if he had any reservations about counsel’s

representation, appellant expressed confidence in his attorney.

      {¶ 31} Similarly, counsel’s failure to object to the prosecutor’s final

questions of Bort during direct examination does not support a conclusion

that counsel’s omission was unintended.         Counsel reasonably could have

concluded the jury would understand appellant had no control over Heather’s

actions. State v. Tibbetts, 92 Ohio St.3d 146, 165-167, 2001-Ohio-132, 749

N.E.2d 226.

      {¶ 32} Finally, a review of defense counsel’s performance demonstrates

he effectively established the animosity CL held toward appellant; CL showed

his attitude in his answers during cross-examination. Moreover, counsel’s

questions of appellant during direct examination clearly brought forward the

theory of the defense. Counsel’s strategy may have proved unsuccessful, but

this fact, in itself, does not establish ineffective assistance. Id.

      {¶ 33} Accordingly, appellant’s first assignment of error is overruled.

      {¶ 34} Appellant next asserts the trial court made errors in making

rulings on evidentiary matters. Appellant argues the trial court should have
                                      12

permitted: 1) Bermes to give her opinion on the truthfulness of AD’s

allegations against appellant; 2) CL to testify about AD’s previous abortion;

and 3) Ebner to testify about specific threats CL made against him.

Appellant further contends the trial court should have foreclosed both

testimony about AD’s statements made directly after the incident, and the

prosecutor’s question of Bort as to whether appellant ever brought Heather to

the police station.

      {¶ 35} A trial court has broad discretion in the admission or exclusion of

evidence.    State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343,

paragraph two of the syllabus. Thus,           a trial court’s ruling on the

admissibility of evidence will be upheld unless the record demonstrates an

abuse of discretion that caused material prejudice. State v. Martin (1985), 19

Ohio St.3d 122, 129, 483 N.E.2d 1157. A review of the record in this case

fails to demonstrate the trial court abused its discretion.

      {¶ 36} The trial court refused to permit Bermes to give her opinion about

the truthfulness of AD’s allegations because Bermes gave her opinion during

an interview with counsel that, at the time, was protected by attorney-client

privilege.   The trial court simply held defense counsel to his promise to

refrain from questioning Bermes on such matters.
                                     13

      {¶ 37} As to CL’s attempt to comment on AD’s earlier pregnancy, such

testimony would have been gratuitous and irrelevant; therefore, the trial

court properly excluded it.       Evid.R. 402.     Similarly, the trial court

appropriately refused to permit Ebner to provide hearsay evidence prohibited

by Evid.R. 801(C). Since appellant’s testimony established a possible motive

for CL and AD to bring false allegations against him, moreover, he cannot

demonstrate any material prejudice resulted from the trial court’s decisions.



      {¶ 38} A review of CL’s testimony about statements AD made to him

about her experience directly after it occurred demonstrates the testimony

was admissible pursuant to Evid.R. 803(2). At any event, since AD herself

testified, appellant’s defense counsel was able to subject her to a thorough

cross-examination.

      {¶ 39} Finally,   as appellant has previously argued in his first

assignment of error, defense counsel never objected to the prosecutor’s final

questions of Bort during direct examination. The trial court, moreover, was

not obligated to exclude Bort’s answers, especially under these circumstances.

 Bort’s testimony described the course of his investigation; it cannot fairly be

construed to constitute a comment on appellant’s right to remain silent. See,

e.g., State v. Craig, Cuyahoga App. No. 94455, 2011-Ohio-206, ¶17.
                                      14

       {¶ 40} Appellant’s second assignment of error, accordingly, also is

overruled.

       {¶ 41} Appellant argues in his third assignment of error that his

convictions are not supported by either sufficient evidence or the manifest

weight of the evidence. This court disagrees.

       {¶ 42} In reviewing a challenge based upon sufficiency, this court must

examine the evidence presented at trial to determine whether, if believed, the

evidence would convince the average mind of the accused’s guilt beyond a

reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492.

The evidence must be viewed in the light most favorable to the prosecution.

State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

Sufficiency is a question of law; the trial court determines whether the state

has met its burden to produce evidence on each element of the crime charged.

 Id.

       {¶ 43} In considering a challenge to the manifest weight of the evidence,

the reviewing court examines the entire record, weighs the evidence and all

reasonable inferences, and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the judgment must be reversed.             State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.            The
                                        15

discretionary power to grant a new hearing should be exercised only in the

exceptional case in which the evidence weighs heavily against the judgment.

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

Moreover, this court must remain mindful that the weight of the evidence and

the credibility of the witnesses are matters primarily for the jury to assess.

State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of

the syllabus.

      {¶ 44} Appellant was convicted of rape, in violation of both R.C.

2907.02(A)(1)(c) and (2); those provisions state in pertinent part:

      {¶ 45} “(A)(1)     No person shall engage in sexual conduct with another

who is not the spouse of the offender * * * , when any of the following applies:

      {¶ 46} “(c)      The other’s ability to resist or consent is substantially

impaired because of a * * * physical condition * * * , and the offender knows

or has reasonable cause to believe that the other person’s ability to resist or

consent is substantially impaired because of a * * * physical condition * * * .

      {¶ 47} “ * * *

      {¶ 48} “(2)      No person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or

threat of force.”
                                         16

      {¶ 49} Appellant also was convicted of kidnapping, in violation of R.C.

2905.01, which states in pertinent part:

      {¶ 50} “(A)     No person, by force, * * * shall * * * restrain the liberty of

[an]other person, for any of the following purposes:

      {¶ 51} “(4)     To engage in sexual activity * * * with the victim against

the victim’s will.”

      {¶ 52} Finally, the jury convicted appellant of gross sexual imposition, in

violation of R.C. 2907.05, which states in pertinent part:

      {¶ 53} “(A)     No person shall have sexual contact with another, not the

spouse of the offender; * * * when any of the following applies:

      {¶ 54} “(1)     The offender purposely compels the other person * * * to

submit by force or threat of force.”

      {¶ 55} The state presented the jury with sufficient evidence to prove

appellant committed each of the foregoing offenses. AD testified that even

though she was a very “heavy” sleeper, she awoke to find appellant fondling

one of her breasts with one hand while two fingers of his other hand were

inside her vagina. Her clothing had been pushed aside, and appellant was

“leaning over” her. AD stated she was “shocked” by appellant’s actions and

she initially was “paralyzed.”      She further testified she was afraid he might

do more harm to her if she did not act in a relatively calm manner.
                                       17

      {¶ 56} AD also testified that after she got up and rearranged her

clothing, appellant saw her move toward the apartment door, so he placed

himself in front of it.       Appellant tried to prevent her from leaving his

apartment until he realized she was insistent.

      {¶ 57} AD gave a compelling description of the incident and its

surrounding circumstances.        Her testimony found corroboration in CL’s

observations of her demeanor immediately after the incident, and in AD’s

mother’s assessment of AD’s reaction to her ordeal.         Indeed, the state’s

witnesses presented a logical, coherent account.

      {¶ 58} Appellant’s story, on the other hand, strained credulity in light of

his admissions. Furthermore, Ebner added little to appellant’s defense.

      {¶ 59} Consequently, appellant’s convictions are supported by both

sufficient evidence and the manifest weight of the evidence.            State v.

Jackson, Cuyahoga App. No. 93235, 2010-Ohio-3716. His third assignment

of error also is overruled.

      Appellant’s convictions are 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
                                     18

convictions 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.




KENNETH A. ROCCO, JUDGE

MARY EILEEN KILBANE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
