[Cite as State v. Howell, 2016-Ohio-7749.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 15 CAA 12 0098
PATRICK HOWELL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 15 CRI 050227


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 14, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAROL HAMILTON O'BRIEN                         APRIL F. CAMPBELL
PROSECUTING ATTORNEY                           CAMPBELL LAW LLC
DOUGLAS N. DUMOLT                              545 Metro Place South
ASSISTANT PROSECUTOR                           Suite 100
140 North Sandusky Street, 3rd Floor           Dublin, Ohio 43017
Delaware, Ohio 43015
Delaware County, Case No. 15 CAA 12 0098                                                     2

Wise, J.

       {¶1}   Appellant Patrick Howell appeals his felony rape convictions in the Court of

Common Pleas, Delaware County. Appellee is the State of Ohio. The relevant facts

leading to this appeal are as follows.

       {¶2}   On May 22, 2015, the Delaware County Grand Jury indicted Appellant

Howell on five counts of rape, R.C. 2907.02(A)(1)(b), all first-degree felonies. The victim

was appellant’s minor daughter, D.H.

       {¶3}   During discovery, the State disclosed it intended to use DNA evidence at

trial that would scientifically identify D.H. as being the source of DNA on a sex toy found

in the master bedroom.

       {¶4}   Accordingly, at a pre-trial hearing conducted on July 6, 2015, appellant’s

trial counsel orally moved for a State-funded DNA expert to assist him in preparing for

appellant’s defense. At that time, the assistant prosecutor asked “if we could have, once

[appellant’s written] motion has been filed, a few days to look at it and see if an opposition

is appropriate or not, that would be the request of the State.” Tr., 7/6/15 Pretrial, at 4. The

trial court thereupon scheduled a second pre-trial hearing for August 7, 2015.

       {¶5}   In the meantime, appellant filed his formal motion for an expert witness to

evaluate the DNA evidence the State intended to use at trial, and the State filed a

response in opposition. Appellant filed a supplemental motion on August 14, 2015. The

trial court thereafter denied appellant an expert witness to evaluate the DNA evidence the

State intended to use at trial.

       {¶6}   The matter proceeded to a jury trial commencing on November 10, 2015.

Among other witnesses, the State called a children services caseworker to the stand to
Delaware County, Case No. 15 CAA 12 0098                                                  3


testify as to her investigation of the sexual abuse allegations. A detective who collected

material from inside appellant’s home also testified. The State’s two DNA forensic

scientists likewise testified. The child victim, D.H., and her mother each took the stand as

well. During the defense phase, appellant testified on his own behalf.

       {¶7}   Appellant was ultimately found guilty on each rape count. He was sentenced

to consecutive sentences of twenty-five years-to-life on counts one and two. He was

sentenced concurrently on the remaining counts.

       {¶8}   On December 21, 2015, appellant filed a notice of appeal. He herein raises

the following five Assignments of Error:

       {¶9}   “I. A PROSECUTOR HAS NO RIGHT TO CHALLENGE AN INDIGENT

DEFENDANT'S MOTION FOR STATE FUNDING OF AN EXPERT WITNESS BECAUSE

AN INDIGENT DEFENDANT IS ENTITLED TO AN EX-PARTE HEARING, WITHOUT

WHICH HIS RIGHT AGAINST SELF-INCRIMINATION IS ENCROACHED UPON, AS IS

HIS RIGHT TO EQUAL PROTECTION.

       {¶10} “II. THE TRIAL COURT VIOLATED HOWELL'S DUE PROCESS RIGHT

WHEN IT DENIED HIM FUNDING FOR A DNA EXPERT TO ASSIST IN HOWELL'S

DEFENSE.

       {¶11} “III. APPELLANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE

APPELLANT'S TRIAL COUNSEL WAS DEFICIENT AT TRIAL, WITH RESULTING

PREJUDICE.

       {¶12} “IV. IT IS PROSECUTORIAL MISCONDUCT WHEN A PROSECUTOR

PLACES HIS OWN CREDIBILITY AT ISSUE, AND VOUCHES FOR A WITNESS'S

CREDIBILITY. IT IS PREJUDICIAL ERROR WHERE, AS HERE, THAT WITNESS WAS
Delaware County, Case No. 15 CAA 12 0098                                                   4


THE ONLY WITNESS TO THE EVENTS FOR WHICH DEFENDANT WAS CONVICTED;

THE REMARKS WERE MADE IN REBUTTAL; AND WERE MADE WITHOUT A

CURATIVE INSTRUCTION.

       {¶13} “V. BECAUSE OF CUMULATIVE ERROR, HOWELL WAS DENIED HIS

RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S INTERVENTION ON HOWELL'S

MOTION FOR EXPERT FUNDING; THE TRIAL COURT'S DENIAL OF THAT MOTION;

DEFENSE      COUNSEL'S       INEFFECTIVE          ASSISTANCE     AT   TRIAL;    AND     THE

PROSECUTOR'S IMPROPER VOUCHING IN CLOSING.”

                                             I.

       {¶14} In his First Assignment of Error, appellant argues the trial court erred in

permitting the State to challenge his motion for an appointed expert witness. We disagree.

       {¶15} In Ake v. Oklahoma (1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53,

the United States Supreme Court held that an indigent defendant charged with a capital

offense has a due process right to a state-provided psychiatrist when he makes an ex

parte showing that his sanity will be a significant factor in his defense. The Ohio Supreme

Court subsequently recognized that even though Ake involved the provision of expert

psychiatric assistance, “the case now is generally recognized to support the proposition

that due process may require that a criminal defendant be provided other types of expert

assistance when necessary to present an adequate defense.” State v. Mason, 82 Ohio

St.3d 144, 149, 694 N.E.2d 932, 1998–Ohio–370.

       {¶16} Nonetheless, Ake does not require that all such motions be considered on

an ex parte basis. “An ex parte hearing may be required when such protection is

necessary to protect defense counsel's strategy, but it is not required in every case.” State
Delaware County, Case No. 15 CAA 12 0098                                                     5

v. Brown, 5th Dist. Richland No. 2011–CA–0021, 2011-Ohio-6782, ¶ 39, citing State v.

Peeples (1994), 94 Ohio App.3d 34, 640 N.E.2d 208. This Court has set forth a significant

burden for a defendant advancing the present issue to demonstrate on appeal: He must

show that had he been given an ex parte hearing for the purpose of protecting defense

counsel's strategy, (1) his request for the appropriation of fees would have been granted,

(2) the expert would have testified, and (3) there would have been an acquittal. See

Brown, supra.

       {¶17} In the case sub judice, as an initial matter, we note the record does not

clearly confirm that appellant actually requested an ex parte hearing. Appellant’s

“Supplemental Motion for Appropriation of Funds for Consulting Technical Expert” filed

August 14, 2015 (after the pre-trial hearings of July 6, 2015 and August 7, 2015), indeed

indicates that defense counsel had supplied certain information to the trial court for an in

camera inspection, but this appears to chiefly pertain to the question of fees charged by

a proposed independent lab. Nonetheless, as indicated in our recitation of facts, we

reiterate that the State utilized forensic testing to scientifically identify D.H. as being the

source of DNA on a sex toy found in the master bedroom (Tr. at 373), thus creating for

the jury the potential inference that appellant was involved in sexual perpetration on the

child. Appellant’s trial counsel’s generalized assertions to the trial court that he would be

unable to challenge the State’s submitted DNA findings without the assistance of an

independent expert analyst falls far short of explaining what manner of successful

defense strategy would need the protection of an ex parte hearing.

       {¶18} Accordingly, we find no error or abuse of discretion under the circumstances

in the trial court’s failure to hold an ex parte hearing on the issue of an appointed DNA
Delaware County, Case No. 15 CAA 12 0098                                                   6


defense expert and in the allowance of the prosecutor to respond to such request via a

memorandum contra.

       {¶19} Appellant's First Assignment of Error is therefore overruled.

                                             II.

       {¶20} In his Second Assignment of Error, appellant argues the trial court erred in

denying his motion for an appointed expert DNA witness. We disagree.

       {¶21} As a matter of due process, indigent defendants are entitled to receive the

“raw materials” and the “basic tools of an adequate defense.” Ake, supra, at 77, 105 S.Ct.

1087, 84 L.Ed.2d 53 (1985). However, the decision to grant funds for expert assistance

to indigent defendants is left to the sound discretion of the trial court. State v. Bays, 5th

Dist. Ashland No. 13–COA–005, 2013–Ohio–4177, ¶ 16, citing State v. Mason, supra, at

150. An abuse of discretion connotes more than an error of law or judgment, it implies the

court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219.

       {¶22} An indigent criminal defendant seeking funds to obtain expert assistance at

State expense requires a “particularized showing” (1) of a reasonable probability that the

requested expert would aid in his defense, and (2) that denial of the requested expert

assistance would result in an unfair trial. See Mason at 149, 694 N.E.2d 932. This Court

has similarly recognized that “[i]n the absence of a particularized showing of need, due

process as guaranteed by the Fifth and Fourteenth Amendments to the United States

Constitution and Section 16, Article I of the Ohio Constitution does not require the

provision of an expert witness.” State v. Babcock, 5th Dist. Stark No. 2011CA00286,

2012–Ohio–3627, ¶ 30, citing In re B.L., 5th Dist. Licking No. 09–CA–54, 2009–Ohio–
Delaware County, Case No. 15 CAA 12 0098                                                  7


6341, ¶ 41. Furthermore, “undeveloped assertions that the proposed assistance would

be useful to the defense are patently inadequate.” In the Matter of Kristopher F., 5th Dist.

Stark No. 2006CA00312, 2007–Ohio–3259, ¶ 48, quoting State v. Wright, 7th Dist.

Columbiana No. 97 CO 35, 2001-Ohio-3423.

       {¶23} Because public funds are a finite resource, they are properly reserved for

defendants who can show a “particularized need” for them. See Babcock, supra.

Attorneys are routinely expected to familiarize themselves with complex issues as they

are presented or as they develop in a case. As the State notes in response, we have now

reached the point of familiarity with certain scientific advances to at least recognize that

there is nothing novel about the use of DNA evidence in criminal cases. Indeed, "[t]here

are ample materials available [regarding DNA analysis] by which resourceful counsel can

educate himself [or herself] sufficiently to formulate an effective cross-examination." See

State v. Alltop, 12th Dist. Fayette No. CA2013–06–018, 2014-Ohio-1695, ¶ 16.

       {¶24} In the case sub judice, appellant's trial counsel forthrightly represented to

the court that he was an attorney, not a scientist, and urged that he needed the assistance

of an expert witness to review the BCI report prepared by the DNA analyst, as well as its

underlying documentation, for purposes of effectively confronting said pertinent

prosecution witnesses. See Tr., August 7, 2015, at 7-9. However, upon review, we are

unable to conclude the trial court abused its discretion in failing to afford appellant an

expert witness at the State’s expense under the facts and circumstances presented.

       {¶25} Appellant's Second Assignment of Error is therefore overruled.
Delaware County, Case No. 15 CAA 12 0098                                                   8


                                             IV.

       {¶26} In his Fourth Assignment of Error, which we will address out of sequence,

appellant argues the State engaged in prosecutorial misconduct during closing

arguments. We disagree.

       {¶27} Ohio courts have recognized that it is improper for an attorney to engage in

vouching during a trial via expressing his or her personal opinion as to the credibility of a

witness. See, e.g., State v. Williams (1997), 79 Ohio St.3d 1, 12, 679 N.E.2d 646.

However, a conviction will be reversed for prosecutorial misconduct only where it is clear

beyond a reasonable doubt that, absent the prosecutor's comments, the jury would not

have found the defendant guilty. State v. Benge, 75 Ohio St.3d 136, 141, 661 N.E.2d

1019, 1996–Ohio–227. Furthermore, isolated comments by a prosecutor are not to be

taken out of context and given their “most damaging meaning.” See Donnelly v.

DeChristoforo (1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431. Generally, a

prosecutor's conduct at trial is not grounds for reversal unless that conduct deprives the

defendant of a fair trial. State v. Loza (1994), 71 Ohio St.3d 61, 78, 641 N.E.2d 1082.

       {¶28} Appellant asserts that the assistant prosecutor told the jury, during closing

remarks, that with his ten years of experience in the courts, he “believed what [D.H.] said.”

However, the transcript reveals the full statement of the assistant prosecutor was as

follows:

              "The judge will tell you that the testimony of one witness if believed

       is sufficient to convict someone beyond a reasonable doubt. And I've been

       doing this for about ten years now and talk [sic] with jurors afterwards and

       [sic] said I believe what she said but [sic]. If you believe what she said, then
Delaware County, Case No. 15 CAA 12 0098                                                   9


       you have a duty to vote guilty on each and every count because her

       testimony alone, her words gave you every element of every offense

       charged. The testimony of one witness if believed. So that's the question

       here, do you believe her? If you do, your duty's clear.

       {¶29} Tr. at 612.

       {¶30} The exact meaning of the aforesaid closing argument portion is somewhat

clouded by either syntax or scrivener’s errors. However, as there has been no apparent

utilization of App.R. 9(E) in this matter for purposes of correction of the record, our

assessment of the above passage, in its context, is that rather than vouching for the

witness, the assistant prosecutor was trying to properly emphasize that the jurors

themselves would have to determine the credibility of the witnesses. In other words, we

find the “I believe” phrasing was most likely in reference to what other jurors had told the

assistant prosecutor after the conclusion of previous cases about their efforts to weigh

the evidence.

       {¶31} Therefore, upon review, we reject appellant’s proposition that the assistant

prosecutor was vouching for the victim’s credibility during closing arguments.

Furthermore, because defense counsel did not object to the alleged prosecutorial

misconduct, appellant has forfeited all but plain error. See State v. Kuhar, 9th Dist. Medina

No. 15A0053–M, 2016-Ohio-5280, ¶ 20, citing State v. Reed, 9th Dist. Wayne No.

12CA0051, 2013–Ohio–3970, ¶ 57.

       {¶32} Accordingly, we find no reversible error on the basis of prosecutorial

misconduct.

       {¶33} Appellant's Fourth Assignment of Error is therefore overruled.
Delaware County, Case No. 15 CAA 12 0098                                                  10


                                             III.

       {¶34} In his Third Assignment of Error, appellant contends he was deprived of the

effective assistance of counsel at his trial. We disagree.

       {¶35} The test for ineffective assistance claims is set forth in Strickland v.

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

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. There is essentially a two-pronged

analysis in reviewing a claim for ineffective assistance of counsel. First, the trial court

must determine whether counsel's assistance was ineffective; i.e., whether counsel's

performance fell below an objective standard of reasonable representation and was

violative of any of his or her essential duties to the client. If the court finds ineffective

assistance of counsel, it 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.

 Failure to object to State’s introduction of alleged hearsay statements regarding D.H.

       {¶36} Ineffective assistance may result where a defendant was prejudiced by

defense counsel's failure to object to improper questioning by the State during a trial. See

State v. Buchanan, 12th Dist. Brown No. CA2008-04-001, 2009-Ohio-6042, ¶ 61. As a

general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. Where

evidentiary issues are preserved for appeal, our standard task is to look at the totality of

the circumstances in the case, and determine whether the trial court acted unreasonably,

arbitrarily or unconscionably in allowing or excluding the disputed evidence. State v.

Oman, 5th Dist. Stark No. 1999CA00027, 2000 WL 222190.
Delaware County, Case No. 15 CAA 12 0098                                                    11

       {¶37} In the case sub judice, appellant directs us to witness Michelle Leighty, a

children services caseworker who testified in detail regarding her conversation with D.H.

See Tr. 169-205. Specifically, appellant first notes Leighty’s testimony about D.H.’s

repeated references to being “stressed” at home. For example, Leighty recalled: “[D.H.]

probably brought that up about five minutes into the interview that it was stress. She was

stressed at home and I could see when she talked about stress, then her body language

did kind of [sic], she would look down, pick at her nails and not make a lot of eye contact

with me.” Tr. at 188. However, we cannot find it was unreasonable for defense counsel

to refrain from objecting at this point, in light of the hearsay exception under Evid.R. 803(3)

for statements of a declarant's then existing state of mind, emotion, sensation, or physical

condition See, e.g., State v. Griffin, 1st Dist. Hamilton C–020084, 2003-Ohio-3196, ¶ 27

(applying said exception where a victim had made statements that reflected her then-

existing state of mind of being fearful of the defendant).

       {¶38} Appellant secondly directs us to Leighty’s further testimony about her

discussions with D.H., who, while at first hesitant to talk about “body parts,” eventually,

with the assistance of anatomical drawings, did “identif[y] the parts and the abuse during

the interview.” See Tr. at 193-195. However, we find no demonstration of prejudice in

defense counsel’s failure to object in this regard, as the trial court ultimately gave a

curative instruction on the topic of hearsay (see Tr. at 190) and D.H later testified herself.

See State v. F.R., 10th Dist. Franklin No. 14AP–440, 34 N.E.3d 498, 2015-Ohio-1914, ¶

37 (recognizing that the admission of hearsay is harmless error where the declarant was

also a witness and examined regarding matters identical to those contained in the

hearsay statements.)
Delaware County, Case No. 15 CAA 12 0098                                                    12

      Failure to object to, and defense introduction of, alleged “other acts” evidence

       {¶39} Appellant next directs us to some of the testimony of D.H.'s mother, Rhoda

Howell, who described sexually-oriented text messages appellant sent to Rhoda at work,

including regular messages wherein he “would say he was horny.” See Tr. at 227.

Appellant urges that his trial counsel was ineffective for failing to object to such references

as improper “other acts” evidence, citing Evid.R. 403(A), 404(B) and 608(B). It is well-

established that competent counsel may reasonably hesitate to object to potential errors

in the jury's presence because objections may be considered bothersome by the jury and

may tend to interrupt the flow of a trial. See State v. Rogers, 9th Dist. Summit No. 19176,

1999 WL 239100, citing State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339

(internal quotations omitted). We find in this instance that defense counsel could

reasonably have determined that appellant’s messages about his sexual tension while

his wife was a work were generalized comments which did not warrant additional

interruption of the flow of the trial.

       {¶40} Appellant further argues that his trial counsel “sealed [appellant’s] fate as

having a propensity for sexual deviance” by unsuccessfully trying to confirm via cross-

examination of Detective McQuigg that additional investigation regarding D.H.’s sister

found nothing amiss, only to have the detective answer: “There was an incident that was

described that needed to be followed up on, yes.” See Tr. at 293. We note defense

counsel at that point simply moved on to other subjects, and chose not to draw more

attention to the detective’s answer. Assuming arguendo that defense counsel’s

performance was deficient on this sole question, we are unpersuaded that appellant was

thereby prejudiced in light of the additional evidence in the trial record.
Delaware County, Case No. 15 CAA 12 0098                                               13

           Failure to object to references to appellant being in jail during trial

       {¶41} Appellant next contends that defense counsel should have objected to

references made by caseworker Leighty and Detective McQuigg concerning appellant’s

presence in jail during some of their interviews. See Tr. at 205, 280-281. We note the

Ohio Supreme Court has patently recognized that “[e]vidence about a defendant's arrest

and ensuing custody does not contravene the presumption of innocence.” State v.

Williams, 99 Ohio St.3d 439, 793 N.E.2d 446, 2003-Ohio-4164, ¶ 75. Upon review, we

find no demonstration of prejudice in defense counsel’s decision not to object in this

regard. Bradley, supra.

            Failure to seek exclusion of certain exhibits via a motion in limine

       {¶42} Appellant also contends his trial counsel was deficient for failing to seek

exclusion of “several pictures, and the sexual objects [presented] as exhibits repeatedly

to the jury.” Appellant’s Brief at 17. This appears to be in reference to photographs of

pornographic material, the aforementioned sex toy and lubricant found in the master

bedroom, and a “penis pump” device. Appellant appears to concede that these items were

relevant evidence, but he maintains that they were inflammatory to the jurors. However,

the record clearly indicates that D.H. subsequently testified how these items were related

to the sexual abuse she encountered in the home. As such, we do not find that the cited

exhibits were so inflammatory in nature that defense counsel’s decision not to object or

pursue a motion in limine affected the outcome of the trial.
Delaware County, Case No. 15 CAA 12 0098                                                 14

                      Failure to rebut, via video-recorded interview,
                detective's characterization of appellant’s custodial denial

       {¶43} Appellant next contends that defense counsel should have sought to

introduce the actual video of appellant’s interview with detectives, as a means of

countering McQuigg’s recollection that appellant’s denial of the charges was periodically

“passive” and unemotional      during the conversation. See Tr. at 280-281, 290-293.

However, “[t]he law is well settled that only those issues occurring on the record can be

evaluated in a direct appeal.” State v. Rodvold, 6th Dist. Huron No. H–10–012, 2012-

Ohio-619, ¶ 41. It would be improperly speculative for this Court to attempt to gauge the

import of a recorded police interview when the video was not introduced at trial and is

thus dehors the present appellate record.

    Failure to object to alleged prosecutorial misconduct in State’s rebuttal argument

       {¶44} Based on our previous rejection of appellant’s general assertion of

prosecutorial misconduct on the basis of alleged “vouching” of a witness by the assistant

prosecutor during closing, we find no ineffective assistance of trial counsel on this point.

       {¶45} Appellant's Third Assignment of Error is therefore overruled.

                                             V.

       {¶46} In his Fifth Assignment of Error, appellant contends he was deprived of a

fair trial based on the existence of cumulative error. We disagree.

       {¶47} The doctrine of cumulative error provides that a conviction will be reversed

where the cumulative effect of evidentiary errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial court

error does not singularly constitute cause for reversal. State v. DeMarco (1987), 31 Ohio

St.3d 191, 509 N.E.2d 1256, paragraph two of the syllabus.
Delaware County, Case No. 15 CAA 12 0098                                              15


      {¶48} In support of his “cumulative error” argument, appellant essentially revisits

a number of the claims asserted in his previous assigned errors.

      {¶49} Notwithstanding this Court's past reluctance to embrace cumulative error

as grounds for reversal (see State v. Mascarella, 5th Tuscarawas No. 94 AP 100075,

1995 WL 495390 (July 6, 1995)), we have reviewed the pertinent parts of the record in

this matter, and we do not find reversible error has been demonstrated on this basis as

urged by appellant.

      {¶50} Appellant's Fifth Assignment of Error is therefore overruled.

      {¶51} For the foregoing reasons, the judgment of the Court of Common Pleas,

Delaware County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.




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