[Cite as State v. Bugara, 2019-Ohio-39.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                   :       Hon. W. Scott Gwin, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
TYLER BUGARA                                 :       Case No. 2018CA00039
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2017CR0884




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 7, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellee

JOHN D. FERRERO                                      AARON KOVALCHIK
KATHLEEN O. TATARSKY                                 116 Cleveland Avenue NW
110 Central Plaza S - Suite 510                      808 Courtyard Centre
Canton, OH 44702                                     Canton, OH 44702
Stark County, Case No. 2018CA00039                                                       2

Wise, E., J.

       {¶ 1} Defendant-Appellant Tyler Bugara appeals the March 1, 2018 judgment of

conviction and sentence of the Court of Common Pleas of Stark County, Ohio. Plaintiff-

Appellee is the state of Ohio.

                            FACTS AND PROCEDURAL HISTORY

       {¶ 2} In March 2017, S.B worked as a waitress at Grinder's in Alliance, Ohio. S.B

ended a relationship that month and on March 12, her coworkers Jamie Callahan and

Tanette Preas thought getting S.B out for an evening would get her mind off the breakup.

       {¶ 3} At approximately 10:30 that evening, they arrived at Rey's, a bar in Alliance.

Others joined as well, including Bugara, who was S.B's supervisor at Grinder's.

       {¶ 4} S.B started out drinking Crown Royal and coke, and when others did not

finish their drinks, she did. She also did some shots. Bugara was flirty with S.B that

evening and S.B was flirty in return. Everyone was having a good time.

       {¶ 5} At some point, however, due to the amount of liquor she consumed, S.B

went outside and vomited. Realizing she was too drunk to drive, she went back into the

bar and asked Callahan and Preas if they would like to walk with her to her apartment,

about a mile and a half away, and stay with her since they had both been drinking as well.

When they left on foot at approximately 2:00 a.m. S.B thought both Callahan and Preas

had decided to go to her place, but as they walked toward her apartment, she realized it

was Callahan and Bugara with her.

       {¶ 6} When she tried to recall the events of the evening the following day, S.B did

not recall actually leaving the bar, but did recall the walk home and feeling sick. During
Stark County, Case No. 2018CA00039                                                      3


the walk home, S.B fell once in the snow. She recalled Callahan and Bugara ahead of

her with their arms around each other and laughing.

      {¶ 7} S.B did not recall inviting Bugara, but did not dissuade him from joining them

as she did not feel threatened. Once at her apartment, Callahan asked S.B for clothes to

sleep in. When S.B bent over to find clothing for Callahan in her bottom dresser drawer,

she fell over. S.B later remembered Callahan's voice, and that she was trying to get S.B

off the floor and into bed, but S.B just wanted to stay on the floor because Callahan

touching her and moving her made S.B feel like she was going to vomit again.

      {¶ 8} Callahan left S.B where she fell. She and Bugara then ate what they found

in S.B's refrigerator and drank liquor they found in the house as well. Callahan then fell

asleep on the sofa.

      {¶ 9} The next thing S.B recalled was waking up due to pain in her anus. She was

on her side on her bed and Bugara was behind her with his penis inserted in her rectum.

S.B passed out again.

      {¶ 10} S.B next woke to Callahan frantic because she did not know what time it

was and both she and S.B had to be at work. Once fully awake, S.B noticed she was in

bed with the covers pulled up over herself, and that her work clothing was half off. Her

shirt was pulled up and her bra unhooked. Her pants and underwear were pulled down to

mid-thigh. Bugara was gone.

      {¶ 11} S.B contacted her father to take her and Callahan to their cars. She did not

say anything to Callahan about what happened, because she did not want to believe it

happened. The event seemed dream like to her. But when S.B started dressing herself,

she noticed her anus hurt. She further noted her knee hurt when walking.
Stark County, Case No. 2018CA00039                                                       4


          {¶ 12} S.B's father took her and Callahan to their cars. S.B did not mention

anything to her father either as she did not know how to raise such a subject with her

father.

          {¶ 13} Once home again, S.B looked at the blue sheets on her bed and noticed a

semen stain, which confirmed her suspicions. She called her brother and asked him to

come over. S.B's brother took her to Alliance Hospital where she reported she had been

sexually assaulted. As per protocol, hospital staff contacted police. Officer Patrick Kelly

of the Alliance Police Department responded to the hospital and spoke with S.B. He

interviewed S.B while wearing a point of view camera which recorded the interview. S.B

was visibly shaken and upset while she relayed the above outlined events to Kelly. She

gave Kelly the keys to her apartment and permission to search the same. Kelly contacted

his shift commander and requested a detective to meet him at the apartment as he

believed there would be evidence to collect.

          {¶ 14} Detective Matthew Shatzer met Kelly at S.B's apartment. Shatzer

photographed the bedroom as well as the rest of the apartment. Because S.B had stated

she believed there was semen on the bed sheets, Shatzer used an alternative light source

on the sheets which revealed an area of possible body fluids on the fitted sheet. The

sheets were collected as evidence.

          {¶ 15} Because Alliance Hospital does not have a Sexual Assault Nurse Examiner

(SANE) on staff, S.B was sent to Aultman Hospital for a sexual assault examination. After

processing the scene at the apartment, Shatzer went to Aultman to speak with S.B. He

found S.B upset, but she relayed the same sequence of events to Shatzer as she had to
Stark County, Case No. 2018CA00039                                                        5


Kelly. When Shatzer spoke with S.B two days later, her recall of events remained the

same.

        {¶ 16} Shatzer also spoke with Callahan. The evening of March 12, 2017 was the

first time Callahan had ever socialized with S.B. Callahan confirmed they were all at Rey's

after work at Grinder's and that all felt too drunk to drive. She further confirmed that S.B

passed out on her bedroom floor while she was trying to get clothing for Callahan to sleep

in. Callahan stated she and Bugara tried to get S.B into bed without success, so they left

her on the floor. She further recalled herself and Bugera drinking some more and eating

before she went to sleep on the sofa. In the morning, she awoke on the sofa and noted

Bugera was gone. Although she had never heard S.B invite Bugera into her bedroom,

she thought maybe he was in S.B's bedroom, but did not find him there. S.B was alone

in her room on her bed. Callahan noted S.B seemed hungover, but she gave Callahan no

indication that anything else was wrong.

        {¶ 17} Karen Rowlands is a SANE nurse at Aultman Hospital and performed S.B's

sexual assault examination. Rowlands swabbed several areas of S.B's body including

anal, perianal and vaginal regions. She sealed these swabs and other evidence in

envelopes, placed them in the rape kit and gave the kit to Shatzer. Shatzer delivered the

kit and the sheets recovered from S.B's bed to the Bureau of Criminal Investigations

Crime Laboratory (BCI).

        {¶ 18} Sara Horst is a forensic biologist at the BCI. She examines items of

evidence for the presence of bodily fluids. She examined S.B's oral, anal, perianal and

vaginal swabs. None of the swabs contained sperm cells, but one was positive for
Stark County, Case No. 2018CA00039                                                          6


semen. Horst did find sperm cells on the fitted sheet. The sheet and the anal and

perianal swabs were sent to the DNA section of the BCI laboratory for further analysis.

       {¶ 19} Emily Feldenkris works in the DNA section of the BCI. She further

examined the fitted sheet. Using a DNA standard developed from an oral swab

submitted to the lab from Bugara, Feldenkris was able to develop a DNA profile from the

sperm cells on the fitted sheet and compare it to Bugara’s DNA profile. Feldenkris

concluded that the likelihood of the stain being left by anyone other than Bugara was

one in one trillion.

       {¶ 20} Male-specific Y-STR testing was conducted on S.B's anal and perianal

swabs. This type of testing looks for DNA found on the Y-chromosome and thus

possessed only by men. Bugara was consistent with the male DNA found on the anal

and perianal swabs. The profile isolated from the swab would not be expected to occur

more frequently than 1 in 700 males in the United States population. This statistic – 1 in

700 – is the rarest Y-STR estimate observed.

       {¶ 21} As a result of these events, on June 23, 2017, the Stark County Grand

Jury returned an indictment charging Bugara with one count of rape pursuant to R.C.

2907.02()(1)(a), a felony of the first degree and one count of sexual battery pursuant to

R.C. 2907.03(A)(1) and/or (A)(2), a felony of the third degree. Bugara pled not guilty to

the charges and elected to proceed to a jury trial, which began on February 20, 2018.

Before trial began, the state dismissed the single count of rape.

       {¶ 22} The state called seven witnesses, including S.B. Bugara called one

witness - Preas. During Preas’ testimony, Bugera attempted to introduce text messages

between Preas and S.B. The state objected because Bugera had not disclosed the texts
Stark County, Case No. 2018CA00039                                                           7


during discovery, nor during the state's case-in-chief. Instead, counsel for Bugera had

waited until late the afternoon before to disclose this evidence, and disclosed only one

text message at that time. The court limited Bugara to asking if Preas was in contact

with S.B at 3:59 a.m the morning in question, which Preas answered in the affirmative.

The trial court excluded, however, the content of the texts. Bugara made no proffer as to

the content of the texts.

       {¶ 23} After hearing all the evidence and deliberating, the jury returned a verdict

of guilty of the charge of sexual battery. Bugara was sentenced to four years in prison

and was classified as a Tier III sexual offender.

       {¶ 24} Bugara filed an appeal, and the matter is now before this court for

consideration. He raises three assignments of error:

       {¶ 25} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

ALLOW EITHER EVIDENCE TO BE PRESENTED BY APPELLANT OR A BRIEF

RECESS TO REVIEW THE EVIDENCE.

       {¶ 26} APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 27} APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.

                                             I

       {¶ 28} In his first assignment of error, Bugara argues the trial court abused its

discretion when it prohibited him from introducing text messages during his direct

examination of Preas. We disagree.
Stark County, Case No. 2018CA00039                                                        8


       {¶ 29} First, we review a trial court's decision regarding allegations of non-

compliance with discovery rules under an abuse of discretion standard. Crim.R. 16(L). In

order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

   {¶ 30}     Next, Crim.R. 16(A) sets forth the general purpose of Crim.R.16 and states:



       Purpose, Scope and Reciprocity. This rule is to provide all parties in a criminal

       case with the information necessary for a full and fair adjudication of the facts, to

       protect the integrity of the justice system and the rights of defendants, and to

       protect the well-being of witnesses, victims, and society at large. All duties and

       remedies are subject to a standard of due diligence, apply to the defense and the

       prosecution equally, and are intended to be reciprocal. Once discovery is initiated

       by demand of the defendant, all parties have a continuing duty to supplement their

       disclosures.



       {¶ 31} Third, as stated in Crim.R. 16(A), discovery rules are reciprocal. Crim.R.

16(H) sets forth a defendant's responsibilities under the rule:



              (H) Discovery: Right to Copy or Photograph. If the defendant

              serves a written demand for discovery or any other pleading seeking

              disclosure of evidence on the prosecuting attorney, a reciprocal duty

              of disclosure by the defendant arises without further demand by the
Stark County, Case No. 2018CA00039                                                     9


           state. A public records request made by the defendant, directly or

           indirectly, shall be treated as a demand for discovery in a criminal

           case if, and only if, the request is made to an agency involved in the

           prosecution or investigation of that case. The defendant shall provide

           copies or photographs, or permit the prosecuting attorney to copy or

           photograph, the following items related to the particular case

           indictment, information or complaint, and which are material to the

           innocence or alibi of the defendant, or are intended for use by the

           defense as evidence at the trial, or were obtained from or belong to

           the victim, within the possession of, or reasonably available to the

           defendant, except as provided in division (J) of this rule:

           (1) All laboratory or hospital reports, books, papers, documents,

           photographs, tangible objects, buildings or places;

           (2) Results of physical or mental examinations, experiments or

           scientific tests;

           (3) Any evidence that tends to negate the guilt of the defendant, or

           is material to punishment, or tends to support an alibi. However,

           nothing in this rule shall be construed to require the defendant to

           disclose information that would tend to incriminate that defendant;

           (4) All investigative reports, except as provided in division (J) of this

           rule;
Stark County, Case No. 2018CA00039                                                        10


              (5) Any written or recorded statement by a witness in the defendant’s

              case-in-chief, or any witness that it reasonably anticipates calling as

              a witness in surrebuttal.



       {¶ 32} Crim.R. 16(L) sets forth the trial court's role in regulating discovery between

the parties. For the most part, the trial court maintains discretion to sanction discovery

violations:



              (L) Regulation of Discovery.

              (1) The trial court may make orders regulating discovery not

              inconsistent with this rule. If at any time during the course of the

              proceedings it is brought to the attention of the court that a party has

              failed to comply with this rule or with an order issued pursuant to this

              rule, the court may order such party to permit the discovery or

              inspection, grant a continuance, or prohibit the party from introducing

              in evidence the material not disclosed, or it may make such other

              order as it deems just under the circumstances.

              (2) The trial court specifically may regulate the time, place, and

              manner of a pro se defendant’s access to any discoverable material

              not to exceed the scope of this rule.

              (3) In cases in which the attorney-client relationship is terminated

              prior to trial for any reason, any material that is designated “counsel

              only”, or limited in dissemination by protective order, must be
Stark County, Case No. 2018CA00039                                                     11


             returned to the state. Any work product derived from said material

             shall not be provided to the defendant.



      {¶ 33} Counsel for Bugara was obligated to provide the text messages to the state

pursuant to Crim.R. 16(H). “The overall objective of the criminal rules ‘is to remove the

element of gamesmanship from a trial.’ ” State v. Darmond, 135 Ohio St.3d 343, 2013-

Ohio-966, 986 N.E.2d 971, ¶ 19 quoting City of Lakewood v. Papadelis, 32 Ohio St.3d 1,

3, 511 N.E.2d 1138 (1987). “The purpose of the discovery rules ‘is to prevent surprise

and the secreting of evidence favorable to one party.’ ” Id. quoting Lakewood, 32 Ohio

St.3d at 3, 511 N.E.2d 1138 (1987).

      {¶ 34} According to the docket in this matter, Bugara requested discovery on July

3, 2017. The state responded to Bugara's request and requested reciprocal discovery on

July 14, 2017. Bugara did not provide or mention any text messages to the state until late

afternoon on February 22, 1018, the day before Preas’ testimony. Further, at that time,

counsel for Bugara provided just one text message to the state. During Preas’ testimony,

counsel attempted to question her about texts between herself and S.B. Questioned by

the court upon the state's objection, counsel alleged he had just found out about the text

messages the day before. Transcript of trial, February 22, 2018 (T. II) 151-158.

      {¶ 35} Contrary to Bugara's argument, the trial court's ruling on the matter did not

entirely prohibit testimony regarding the text messages. Instead, because counsel for

appellant argued all he wanted to demonstrate that S.B was in contact with Preas at 3:59

a.m, the trial court permitted counsel to ask that question, but did not permit counsel to

introduce the messages themselves. T. III, 156, 158. Preas answered affirmatively.
Stark County, Case No. 2018CA00039                                                       12


Appellant further argues introduction of the text messages was vital to impeaching S.B's

credibility as she had denied texting Preas. However, counsel cross-examined S.B as

follows:



              [Counsel for Bugara]: Ma'am, if Tanette has a text from you at 3:50

              a.m. saying everything is ok, we made it back home; would you think

              Tanette would lie about a thing like that getting a text from you?

              [S.B]: No.



              T(II) 83.



       {¶ 36} We find the trial court's remedy under these facts excluding the text

messages falls within the boundaries of Crim.R 16(L), and further, that appellant was

permitted to establish what he sought to establish. We therefore find no abuse of

discretion.

       {¶ 37} The first assignment of error is overruled.

                                             II

       {¶ 38} In his second assignment of error, Bugara argues his counsel rendered

ineffective assistance by failing to provide the text messages between S.B and Preas to

the state and further by failing to subpoena witnesses from Preas' cellular service provider

to verify the messages. We disagree.

       {¶ 39} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
Stark County, Case No. 2018CA00039                                                        13


below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.” Strickland

at 694, 104 S.Ct. 2052.

       {¶ 40} While counsel for Bugara should have provided the text messages to the

state in a timely fashion, and should have subpoenaed the appropriate witnesses to

introduce such evidence, Bugara still fails to establish the second Strickland prong as he

cannot demonstrate prejudice. In regard to the messages, counsel for appellant stated

"Your Honor, all I want to try to establish is that [Preas] was in communication [with S.B]

[up to] 3:59. That's it." T. III 156. Counsel was permitted to ask this question of Preas and

Preas answered affirmatively. T. III 158.

       {¶ 41} We therefore find Bugara suffered no prejudice and overrule the second

assignment of error.

                                             III

       {¶ 42} Bugara's third assignment of error argues his conviction is against the

manifest weight and sufficiency of the evidence. We disagree.

       {¶ 43} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether,

after viewing the evidence in a light most favorable to the prosecution, any rational trier
Stark County, Case No. 2018CA00039                                                     14


of fact could have found the essential elements of the crime proven beyond a reasonable

doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing

court is to examine 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 jury 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. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction."

Martin at 175.

      {¶ 44} Bugara went to trial charged with one count of sexual battery pursuant to

R.C. 2907.03(A)(1) and/or (A)(2). These sections state:



             (A) No person shall engage in sexual conduct with another, not the

             spouse of the offender, when any of the following apply:

             (1) The offender knowingly coerces the other person to submit by

             any means that would prevent resistance by a person of ordinary

             resolution.

             (2) The offender knows that the other person's ability to appraise the

             nature of or control the other person's own conduct is substantially

             impaired.
Stark County, Case No. 2018CA00039                                                      15


      {¶ 45} Sexual conduct is defined in R.C. 2907.01(A):



      “Sexual conduct” 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.



      {¶ 46} Bugara first argues the state failed to produce sufficient evidence to prove

sexual conduct occurred.

      {¶ 47} S.B testified she awoke due to pain in her backside. Before passing out

again, she realized Bugara was behind her with his penis inserted in her anus. T(I) 53.

      {¶ 48} Later that day, S.B saw a SANE nurse at Aultman Hospital who swabbed

S.B’s anal and perianal areas. Those swabs were sent to the BCI where it Y-STR testing

determined that Bugara’s DNA was consistent with the DNA isolated from the anal and

perianal swabs. T(III)126-132. Additionally, sperm cells belonging to Bugara were found

on the fitted sheet on S.B’s bed. T(III) 121-123. We find this evidence was sufficient to

prove sexual conduct occurred.

      {¶ 49} Next, Bugara argues the state failed to produce sufficient evidence to prove

S.B was substantially impaired.

      {¶ 50} The trial court instructed the jury that “substantially impaired means a

present reduction, diminution, or decrease in the victim’s ability either to appraise the
Stark County, Case No. 2018CA00039                                                       16


nature of her conduct or control her conduct.” T(IV) 21. S.B testified that she consumed

mixed drinks and shots on the evening in question and eventually vomited outside the bar

due to excessive consumption. T(II) 42-43, 45.She does not recall portions of the evening,

but was aware she, Callahan, and Bugara walked to her apartment and that she fell once

on the walk home. T(II) 47-48. She further recalled falling over as she attempted to get

clothing for Callahan to sleep in, and then passing out on the floor. T(II) 52. Through

Callahan's testimony, the state proved Bugara should have been aware of S.B's

condition. Callahan testified that after S.B passed out on the floor, she and Bugara

attempted to get her up and into bed. Being unsuccessful in the attempt, they left her

where she fell. T(III) 57. We therefore find sufficient evidence to support a finding of

substantial impairment.

       {¶ 51} Last, Bugara points to inconsistencies in S.B’s testimony vis-à-vis Callahan

and Preas, and argues S.B should not have been believed by the jury due to these

inconsistencies. The weight to be given to the evidence and the credibility of the witnesses

however, are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d

180 (1990). The jury was free to accept or reject any or all of the evidence offered by the

parties and assess the witness's credibility. “ ‘While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.’ ” State v. Craig, Franklin App. No. 99AP-739, 2000 WL 297252, (Mar. 23,

2000), quoting State v. Nivens, Franklin App. No. 95APA09-1236, 1996 WL 284714, (May

28, 1996). Indeed, the jurors need not believe all of a witness's testimony, but may accept

only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, ¶
Stark County, Case No. 2018CA00039                                                     17

21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke,

Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d

667, 607 N.E.2d 1096 (1992).

       {¶ 52} Appellant points to inconsistencies in S.B's testimony with that of Callahan

and Preas. None of these inconsistencies, however, pertain to the elements of sexual

battery, but rather things that may or may not have occurred before the actual assault on

S.B. There is no evidence in this record to indicate the jury lost its way in making its

credibility determinations.

       {¶ 53} We find the state produced sufficient evidence to support Bugara’s

conviction and further find the conviction is not against the manifest weight of the

evidence.

       {¶ 54} The final assignment of error is overruled.
Stark County, Case No. 2018CA00039                                        18


      {¶ 55} The judgment of the Court of Common Pleas, Stark County, Ohio is

affirmed.


By Wise, Earle, J.

Wise, John, P. J. and

Gwin, J. concur.




EEW/rw
