[Cite as State v. Grether, 2019-Ohio-4243.]


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

STATE OF OHIO                                         C.A. No.       28977

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRANDON GRETHER                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2016-08-2778

                                  DECISION AND JOURNAL ENTRY

Dated: October 16, 2019



        CARR, Presiding Judge.

        {¶1}     Defendant-Appellant Brandon Grether appeals the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In 2008, Grether moved in with V.A.’s mother. At the time V.A. was around 4

years old. V.A. never knew her biological father, but came to consider Grether her father.

Grether and V.A.’s mother had three children together but never married. They all lived together

in a home in Cuyahoga Falls. V.A. shared a bedroom with her three half-siblings.

        {¶3}     In the early morning hours of July 4, 2016, when V.A. was 12 years old, Grether

digitally penetrated V.A. DNA consistent with Grether’s was later discovered in the underwear

V.A. had been wearing.

        {¶4}     V.A. disclosed the abuse to her mother after Grether left for work that afternoon.

V.A. told her mother that she “woke up to daddy fingering [her.]” V.A.’s mother texted Grether
                                                 2


and asked, “Did you finger [V.A.] last night? * * * How could you do this?” Shortly thereafter,

Grether called V.A.’s mother and told her that he was drunk and did not know why he did it.

Grether left work and went home. When he got home, V.A.’s mother demanded that Grether

apologize to V.A., which he did. Grether then left the house.

         {¶5}   V.A.’s mother called the police and an officer came to the house and took a

statement from V.A. and her mother. When asked by the officer whether V.A. remembered if

Grether put his fingers inside of her, V.A. responded that she did not know but then said she

thought that he did.

         {¶6}   On July 5, 2016, Grether was discovered in a car in his sister’s garage with the

vehicle running. Grether was ultimately transported to the hospital by police and, at that time,

admitted that he had been attempting suicide, allegedly due to depression.

         {¶7}   On July 8, 2016, V.A. was interviewed by a social worker at the Children at Risk

Evaluation (“CARE”) Center. V.A. reported that Grether had touched her “in [her] private area”

with his finger. When asked for more details, V.A. indicated that Grether had touched her inside

her private area. V.A. also underwent a medical examination.

         {¶8}   Grether was charged with one count of rape in violation of R.C. 2907.02(A)(1)(b)

and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4). A couple months

prior to trial, Grether sent a letter to V.A.’s mother, which read in part, “I’m sorry for what has

happened[,] what I’ve done[.] I just wish I could take it all back[.] I’m so sorry I let you all

down.”

         {¶9}   At trial, V.A. testified that Grether penetrated her, which she clarified meant that

he touched her “[i]nside of [her] vagina.” She indicated that she knew it was inside of her body

because she “could feel it and it hurt.” V.A. testified that she was certain that Grether penetrated
                                                 3


her vagina with his fingers and averred that he touched her in the place where tampons are

inserted.

       {¶10} During the cross-examination of V.A., defense counsel played a portion of V.A.’s

and her mother’s interview with police. That interview was not admitted into evidence. The day

after that audio was played, defense counsel moved for a mistrial alleging that a portion of the

audio which mentioned Grether’s prior conviction was inadvertently played. It is unclear from

the record whether the jury heard the portion that was inadvertently played. The trial court

denied the motion based upon the invited error doctrine but indicated it was willing to give a

curative instruction. Ultimately, defense counsel declined to have the trial court give a curative

instruction.

       {¶11} With respect to the jury instructions, the State and defense counsel disagreed as to

the how jury should be instructed as to the definition of sexual conduct. The State maintained

that this Court’s precedent in State v. Melendez, 9th Dist. Lorain No. 08CA009477, 2009-Ohio-

4425 and State v. Nieves, 9th Dist. Lorain No. 12CA010255, 2013-Ohio-4093, was controlling,

while defense counsel asserted that that language in Melendez and Nieves would “make[] rapes

out of gross sexual imposition.” That precedent provides that “insertion, however slight, of a

part of the body or other object within the vulva o[r] labia is sufficient to prove vaginal

penetration for purposes of proving sexual conduct as defined in R.C. 2907.01(A) and rape in

violation of R.C. 2907.02.” (Internal quotations omitted.) Nieves at ¶ 9, quoting Melendez at ¶

14. Ultimately, the trial court utilized language from Melendez and Nieves in its instruction.

       {¶12} The jury found Grether guilty of both counts. Grether was sentenced to life

imprisonment with the possibility of parole after ten years. Grether has appealed, raising three

assignments of error for our review.
                                                 4


                                                 II.

                                 ASSIGNMENT OF ERROR I

       MR. GRETHER WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR
       TRIAL BASED UPON THE INEFFECTIVE ASSISTANCE OF TRIAL
       COUNSEL.

       {¶13} Grether argues in his first assignment of error that his trial attorneys were

ineffective. Specifically, Grether maintains that trial counsel were ineffective in allowing the

portion of the interview of V.A. and V.A.’s mother to be played that mentioned Grether’s prior

conviction. Additionally, Grether essentially argues that defense counsel’s cross-examination of

V.A. amounted to ineffective assistance because it indicated a complete misunderstanding of this

Court’s precedent in Melendez and Nieves.

       {¶14} In order to prevail on a claim of ineffective assistance of counsel, Grether must

show that trial “counsel’s performance fell below an objective standard of reasonableness and

that prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674

(1998), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Grether must show that

counsel’s performance was objectively deficient by producing evidence that counsel acted

unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second,

Grether must demonstrate that but for counsel’s errors, there is a reasonable probability that the

results of the trial would have been different. Keith at 534.

       {¶15} Grether first asserts that trial counsel were ineffective in inadvertently playing a

portion of the audio of the police interview of V.A. and her mother wherein Grether’s prior

conviction was mentioned. The audio that was played is not in this Court’s record and was not

admitted into evidence. Notwithstanding, the trial court recollected the statement as “he [had]

done this before. He went to prison for molesting a child or something like that.” The trial court
                                                 5


also noted that, while one of the attorneys on the defense side was saying “shh, shh” and waiving

his arms as the recording was playing, the other attorney, who was actually playing the

recording, did not even appear to hear the inappropriate portion of the recording. The attorney

who did hear it then stated that he would have to discuss with co-counsel about whether a

curative instruction should be given because such an instruction would “bring it to the attention

[of] those that didn’t otherwise hear it.” Ultimately, defense counsel declined to have a curative

instruction given to the jury.

       {¶16} Given the foregoing, we fail to see how Grether has demonstrated he was

prejudiced by trial counsel’s alleged ineffectiveness. Grether’s argument is premised on the

notion that the jury heard the inappropriate statements and was thereby prejudiced by them.

However, Grether’s premise is pure speculation. See State v. Patel, 9th Dist. Summit No. 24024,

2008-Ohio-4692, ¶ 55 (“It is the duty of the appellant to demonstrate error on appeal and to

include appropriate citations to the transcripts and record in support of that argument.”).

       {¶17} Moreover, even assuming that Grether is correct that the jury heard the statements

at issue, we still cannot say that Grether has demonstrated that he was prejudiced by trial

counsel’s performance. Here, the acts Grether committed were largely undisputed. In addition

to V.A.’s trial testimony and prior statements, there was evidence that, after V.A.’s mother texted

Grether to ask if he had “finger[ed]” V.A., Grether called and claimed that he was drunk and did

not know why he did it. Further, shortly before trial, when Grether would have been well aware

of the charges pending against him, Grether sent V.A.’s mother a letter wherein he stated “I’m

sorry for what has happened[,] what I’ve done[.] I just wish I could take it all back[.] I’m so

sorry I let you all down.” There was also evidence presented that Grether attempted suicide the

day after V.A.’s mother confronted him with V.A.’s accusations.            Finally, a DNA profile
                                                 6


consistent with Grether’s was found on the underwear V.A. was wearing at the time of the

assault. In fact, the evidence of sexual abuse was so strong that defense counsel, in closing

arguments, stated “[c]learly there is a touching here from all the evidence you heard. We are not

going to deny that.”

       {¶18} Grether has not explained how, in light of the evidence presented, and the

arguments of defense counsel, Grether was prejudiced even if the jury heard the audio that

mentioned his prior conviction. See id.

       {¶19} Grether also contends that his trial attorneys pursued a line of questioning, cross-

examination, and argument that was contrary to the law of this district. Grether asserts that it

was clear that the trial attorneys’ defense was that “any touching of the vaginal area, outside the

vaginal opening, [was] not sexual conduct constituting rape, but sexual contact, which would be

an element of gross sexual imposition.” Grether argues that this goes against the precedent of

Melendez and Nieves.      To support his claim that trial counsel misunderstood this Court’s

precedent, he points to trial counsel’s questioning of V.A.

       {¶20} First, we note that “[t]he scope of questioning is generally a matter left to the

discretion of defense counsel.” (Internal quotations and citations omitted.) State v. Bagi, 9th

Dist. Wayne No. 11CA0059, 2012-Ohio-3520, ¶ 19. “A trial counsel’s line of questioning on

cross-examination is a matter of trial strategy. Ineffective assistance does not result from

reasonable cross-examination that does not elicit a desired response.” (Internal quotations and

citations omitted.) Id.

       {¶21} We cannot say that Grether has demonstrated that trial counsel’s cross-

examination of V.A. was unreasonable. Given the evidence presented at trial, the main dispute

concerned the allegations of rape. From this Court’s perspective, it is clear that trial counsel
                                                7


sought to impeach and discredit V.A.’s trial testimony via trial counsel’s cross-examination. In

her trial testimony, V.A. was much more definitive and specific about Grether’s actions, as

compared to her prior statements. As V.A.’s trial testimony provided important evidence to

support that allegation, we fail to understand, and Grether has not adequately explained, why

impeaching V.A.’s credibility and pointing out disparities between her prior statements and her

trial testimony would be unreasonable even assuming trial counsel was mistaken as to this

Court’s precedent concerning the definition of sexual conduct.

       {¶22} As to Grether’s claim that trial counsel’s misunderstanding of this Court’s

precedent led Grether to reject a plea offer, Grether’s claim is speculative and not supported by

the record before this Court. We note that the trial court indicated at the time of sentencing that

defense counsel recommended that Grether take a plea deal, “which was for 16 years of flat

time.” Grether, notwithstanding trial counsel’s recommendation, refused the plea.

       {¶23} Grether has not demonstrated ineffective assistance of trial counsel. Grether’s

first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. GRETHER BY
       DENYING THE MOTION FOR MISTRIAL.

       {¶24} Grether argues in his second assignment of error that the trial court erred in

denying his motion for a mistrial.

       {¶25} We review a trial court’s decision denying a motion for a mistrial for an abuse of

discretion. State v. Horne, 9th Dist. Summit No. 25238, 2011-Ohio-1901, ¶ 18. “Mistrials need

be declared only when the ends of justice so require and a fair trial is no longer possible. The

essential inquiry on a motion for mistrial is whether the substantial rights of the accused are

adversely affected.” (Internal quotations and citations omitted.) State v. Edwards, 9th Dist.
                                                 8


Summit No. 28164, 2017-Ohio-7231, ¶ 13. “In determining whether a defendant was deprived

of a fair trial, a court must determine whether, absent the error or irregularity, the jury would

have found the appellant guilty beyond a reasonable doubt.” (Internal quotations omitted.) Id.

“To determine whether the alleged misconduct resulted in prejudice, a court must consider (1)

the nature of the error, (2) whether an objection was made, (3) whether the trial court provided

corrective instructions, and (4) the strength of the evidence against the defendant.” Id.

       {¶26} As discussed above, during the cross-examination of V.A., defense counsel

played a portion of V.A.’s and her mother’s interview with police. That interview was not

admitted into evidence. V.A.’s testimony concluded the testimony for that day. The next day at

the beginning of the day, defense counsel moved for a mistrial alleging that a portion of the

audio which mentioned Grether’s prior conviction was inadvertently played. It is unclear from

the record whether the jury heard the portion that was inadvertently played. The trial court

denied the motion based upon the invited error doctrine but indicated it was willing to give a

curative instruction. Ultimately, defense counsel declined to have the trial court give a curative

instruction.

       {¶27} “The doctrine of invited error holds that a litigant may not take advantage of an

error which he himself invited or induced.” (Internal quotations and citation omitted.) Edwards

at ¶ 37. “[A] litigant cannot be permitted, either intentionally or [unintentionally] to induce or

mislead a court into the commission of an error and then procure a reversal of the judgment for

an error for which he was actively responsible.” (Internal quotations and citation omitted.) State

v. Ealy, 10th Dist. Franklin No. 15AP-600, 2016-Ohio-1185, ¶ 30. The invited error doctrine has

been applied in the context of motions for mistrials. See State v. Osley, 6th Dist. Lucas No. L-

17-1025, 2018-Ohio-437, ¶ 21-26 (discussing cases related to Defendants’ outbursts during
                                                 9


trial); State v. Jones, 10th Dist. Franklin No. 12AP1091, 2014-Ohio-674, ¶ 22 (“A number of

appellate courts have concluded that the doctrine of invited error prevents a defendant who elicits

or provides inadmissible polygraph evidence at trial, from raising the erroneous admission of

such evidence either as grounds for mistrial or reversal on appeal.”); State v. Beeson, 2d Dist.

Montgomery No. 19312, 2002-Ohio-4341, ¶ 29-34 (“As the trial court correctly noted in

overruling Defendant’s motion for a mistrial, the testimony about which Defendant now

complains was not elicited by the State. It was elicited by Defendant during cross-examination

of the State’s witness, Officer Drayton.”).      Nonetheless, even if the trial court erred in

concluding the action amount to invited error, we still conclude the trial court did not abuse its

discretion in denying the motion for mistrial.

       {¶28} As discussed at length above, it is not clear that any member of the jury actually

heard the statements about Grether’s prior conviction. Accordingly, it is difficult to conclude

that Grether was prejudiced by the inadvertent playing of the statements. Further, in light of the

evidence before the jury, and defense counsel’s closing arguments, also discussed above, we

likewise fail to see how the jury was prejudiced by the playing of the statements. Overall,

Grether has not demonstrated that the trial court abused its discretion in denying his motion for

mistrial as he has not shown that his substantial rights were adversely affected. See Edwards,

2017-Ohio-7231, at ¶ 13.

       {¶29} Grether’s second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERS[I]BLE
       ERROR IN GIVING IMPROPER JURY INSTRUCTIONS ON THE ELEMENT
       OF SEXUAL CONDUCT IN THE CHARGE OF RAPE.
                                                10


       {¶30} Grether argues in his third assignment of error that the trial court erred in giving

an improper jury instruction concerning the definition of sexual conduct. Specifically, Grether

challenges the trial court’s inclusion of language from Melendez and Nieves in the instruction. In

so doing, Grether focuses on changes to the statutory definition that became effective in 2006.

       {¶31} “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.

Although trial courts enjoy broad discretion in fashioning jury instructions, they must present a

correct, pertinent statement of the law that is appropriate to the facts.” (Internal citations and

quotations omitted.) State v. Jackson, 9th Dist. Summit No. 27739, 2017-Ohio-278, ¶ 23. In

addition, Crim.R. 30(A) provides in relevant part that, “[o]n appeal, a party may not assign as

error the giving or the failure to give any instructions unless the party objects before the jury

retires to consider its verdict, stating specifically the matter objected to and the grounds of the

objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

       {¶32} Prior to the trial court instructing the jury, one of the defense attorneys “renew[ed

his] objection to any instruction based on the case of State v. Nieves.” (Emphasis added.)

Whether to give an instruction consistent with Nieves and Melendez was contested.               The

statutory definition of sexual conduct states that it “means vaginal intercourse between a male

and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and,

without privilege to do so, the insertion, however slight, of any part of the body or any

instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration,

however slight, is sufficient to complete vaginal or anal intercourse.” R.C. 2907.01(A). As

mentioned above, Melendez and Nieves stand for the proposition that “insertion, however slight,

of a part of the body or other object within the vulva o[r] labia is sufficient to prove vaginal
                                               11


penetration for purposes of proving sexual conduct as defined in R.C. 2907.01(A) and rape in

violation of R.C. 2907.02.” Nieves, 2013-Ohio-4093, at ¶ 9, quoting Melendez, 2009-Ohio-4425,

at ¶ 14. Defense counsel maintained that including the foregoing language in the instruction

would “make[] rapes out of gross sexual imposition.”

       {¶33} On appeal, Grether appears to argue that changes to the statutory definition in

2006, which altered the language from “vaginal or anal cavity” to the current “vaginal or anal

opening” were not considered in Melendez and Nieves and that the changes to the statute have

rendered reliance upon the language in Melendez and Nieves inappropriate. Grether asserts that

the current statutory language is “more limiting, and does not include the vulva or labia.” See

State v. D.H., 10th Dist. Franklin No. 16AP-15, 2018-Ohio-559, ¶ 39-40.

       {¶34} Grether has not convinced us that we should revisit our case law. Notably, in

Melendez, this Court cited to the current definition of sexual conduct. See Melendez at ¶ 8.

Thus, we disagree that this Court did not take the current statutory language into account in

developing our precedent. Accordingly, Grether has not persuaded us that, to the extent the trial

court’s jury instruction included language from Melendez and Nieves, it was erroneous.

       {¶35} Grether’s third assignment of error is overruled.

                                              III.

       {¶36} Grether’s assignments of error are overruled.       The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                12


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

Pleas, County of Summit, 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.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
