[Cite as State v. Jordan, 2018-Ohio-4108.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 106273



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   HENRY A. JORDAN
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-607809-A

               BEFORE:          Blackmon, J., Stewart, P.J., and Laster Mays, J.

              RELEASED AND JOURNALIZED:                    October 11, 2018
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Debora Brewer
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
       {¶1} Henry A. Jordan (“Jordan”) appeals from his convictions for rape,

aggravated burglary, and kidnapping and assigns the following errors for our review:

       I.       There was insufficient evidence that Henry Jordan was at the crime
                scene or involved in the incident December 23, 2012 and Due
                Process under the State and Federal Constitutions has been violated.

       II.      The convictions are against the manifest weight of the evidence.

       III.     Counsel was constitutionally ineffective under the Sixth and
                Fourteenth Amendments of the federal Constitution and Strickland v.
                Washington, 466 U.S. 668 (1984).

       IV.      Prosecutor misconduct deprived Jordan of a fair trial under the Sixth
                and Fourteenth Amendments of the federal Constitution.

       V.       A combination of ineffective assistance of counsel and prosecutorial

                misconduct deprived Jordan of a fair trial in violation of the Sixth

                and Fourteenth Amendments of the federal Constitution.

       {¶2} Having reviewed the record and pertinent law, we affirm. The apposite

facts follow.

       {¶3} On December 23, 2012, a man forced his way into M.S.’s house and raped

her. M.S. told the police that she did not know who this man was, and eventually the

case went cold. In 2015, information became available in the Combined DNA Index

System (“CODIS”) that matched Jordan’s DNA with a “dried stain” swab taken from

M.S.’s neck at the time of the rape. On July 14, 2016, Jordan was charged with two
counts of rape, one count of kidnapping, and one count of aggravated burglary1. The

case was tried to the court, where evidence was presented that M.S. knew Jordan and had

previously had a consensual sexual relationship with him. On January 26, 2017, Jordan

was found guilty of all four counts. On August 22, 2017, the court sentenced him to

seven years in prison. It is from these convictions that Jordan appeals, arguing that

M.S.’s fiancé, Marcus Ladson, was the man who raped her on the night of December 23,

2012.

                                        Judicial notice

        {¶4} Jordan filed a motion asking this court to take judicial notice of four

exhibits used at a 2016 trial in which Ladson was convicted of a gang-related murder and

other violent felonies. State v. Ladson, Cuyahoga C.P. No. CR-16-604466 (June 7,

2016). This motion was referred to the merit panel. The exhibits are three pictures of

Ladson showing his tattoos and one expert report from a Cleveland police Gang Impact

Unit detective concluding that Ladson is a member of the criminal gang the Heartless

Felons. Jordan argues that he was prejudiced when these exhibits were not used in his

trial because: 1) M.S. described her attacker as having tattoos, and Jordan does not have

any tattoos; and 2) M.S. did not identify Ladson as her attacker for fear that he would

retaliate, as a gang member, if she told the police the truth.


        1
         Jordan was indicted for three additional counts concerning an unrelated incident.   These
three counts were severed for trial and ultimately dismissed.
       {¶5} Evid.R. 201 governs “judicial notice of adjudicative facts; i.e., the facts of

the case. A judicially noticed fact must be one not subject to reasonable dispute in that it

is either (1) generally known within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned.” Evid.R. 201(A) and (B). The exhibits submitted by Jordan

fail to fit into either category.

       {¶6} The Ohio Supreme Court has held that judicial notice may be taken of

dockets or records in other cases. Natl. Distillers & Chem. Corp. v. Limbach, 71 Ohio

St.3d 214, 216, 643 N.E.2d 101 (1994). However, the law does “not state that we may

take judicial notice of evidence contained in the transcripts [and] adjudicative facts

contained in earlier cases.” Id. Furthermore,

       [i]n a direct appeal of a criminal case, appellate review is limited “to what
       transpired in the trial court as reflected by the record made of the
       proceedings.” State v. Ismail, 54 Ohio St.2d 402, 405-406, 377 N.E.2d 500
       (1978). A claim that requires consideration of materials outside of the
       record of proceedings in the trial court is not the type of claim that can be
       considered on direct appeal.

State v. Presnell, 8th Dist. Cuyahoga No. 96172, 2011-Ohio-2801, ¶ 11.

       {¶7} Accordingly, we deny Jordan’s motion for judicial notice.




                                     Trial Testimony
      {¶8} In the case at hand, the first witness to testify was M.S.’s daughter C.M.,

who was five years old at the time of the incident and nine years old at the time of trial.

C.M. testified that on the night of December 23, 2012, her mom M.S. was getting her and

her younger brother ready for bed when someone knocked on their door. M.S. went to

see who was at the door, and C.M. heard her mother scream and yell for help. C.M. went

into the living room and saw “stuff, broken stuff all over the floor.” M.S. was naked and

on the floor, and a man was there with “his pants down halfway. * * * He was on top of

her and she was on the bottom.” C.M. testified that she did not know who this man was

and she had never seen him before. M.S. “had scratches all over her body,” and she was

crying.

      {¶9} M.S. told C.M. to get her phone. C.M. called her aunt and said that “a bad

guy was there.” C.M.’s aunt, who lived down the street, came to M.S.’s house and called

911. The police arrived shortly after. C.M. could not make an in-court identification of

the man she saw that day, testifying, “I don’t remember how his face looked.” Asked if

she had ever seen Jordan before, C.M. stated, “No.” Asked if her mom had a boyfriend,

C.M. replied, “No.” Asked if she knew “a guy named Marcus Ladson,” C.M. answered,

“I don’t remember him.”

      {¶10} M.S. testified that in 2012, she was living with her two children and her

fiancé Marcus Ladson. She had met Jordan that summer while walking down the street.

M.S. and Jordan exchanged phone numbers and had a consensual sexual relationship.
On December 23, 2012, when M.S. was putting her kids to bed, she heard a knock on the

door. She opened the door but did not see anyone there, although she saw a silver car

parked outside. All of a sudden, Jordan “rushed in” to her house smelling of liquor.

M.S. testified about what happened next:

      Once he — once he came in, he had, like, my neck, and, you know, forced
      me, like, on the floor where — I had my son’s bed, like a — toddler bed. I
      was, like, on the floor, like, towards the TV and he had me, like, towards
      my stomach, like I was down on my stomach, and, you know, forced me —
      * * * he rushed into the door, like, having — you know, from behind my
      neck and, you know, I was on the floor and all I remember is I was on my
      stomach and his pants was down. * * * My stomach was, like — I was, like,
      facing down on my stomach and he was on top of me.

      {¶11} M.S. testified that Jordan “shoved” her to the floor “and his pants was down

and his penis was in my vagina.” M.S. was crying and screaming. M.S. testified that

she thought Jordan used a condom because she saw “a wrapper on the floor.” Jordan

then turned her around and put his penis in her mouth. “His stuff, you know, was in. I

guess he was — had used a condom, but his stuff was in my mouth. * * * He just had my

neck and grabbed his penis and put it in my mouth * * *. I was coughing. I was

gagging. I was throwing up.”

      {¶12} M.S. testified that she could not physically get up and leave. M.S. tried to

get Jordan to stop by throwing a lamp at him. M.S. does not remember Jordan leaving,

but she recalls her daughter C.M. and her son standing in the doorway as she was crying

and screaming.
       All I know is my daughter was — my daughter and my son was, like,
       standing there. My daughter, she had got — somehow she got to my
       phone. She found my phone and she had called her auntie, whether — she
       didn’t know — it was just whoever she called first and realized it was her
       auntie and her auntie came down because she lived down the street from me
       and her auntie came, which is Alexis, she had came. She called the police.

       {¶13} M.S. testified that when the nurse at the hospital and the police interviewed

her, she told them that she did not know who did this to her, although she “tried to say his

name, * * * Harry or Henry” and allegedly described him as being bald. M.S. also

testified that she told the police her attacker had tattoos. “I was scared and I thought that,

you know, nobody would believe me, you know, and that actually that he actually had

done it and had hurt me, you know, but I admit that I do know him.” M.S. testified that

she never saw or talked to Jordan again after the night of the assault. However, on cross

examination M.S. testified inconsistently about whether her relationship with Jordan

continued after December 23, 2012.

       {¶14} M.S. testified that in 2015, a detective contacted her about a “DNA hit from

a case from 2012.” The police showed M.S. a photographic lineup, and she picked out

Jordan as “the one that came into my house” and raped her on December 23, 2012.

       {¶15} Former Cleveland police detective Andrew Harasimchuk testified that on

December 27, 2012, he interviewed M.S. concerning her allegations of rape.              M.S.

indicated that she had a consensual sexual partner at the time, Marcus Ladson. Det.

Harasimchuk had Ladson come to the station to give the police “an elimination standard

swab” of his DNA. This sample was sent to the DNA lab so Ladson’s DNA “can be
eliminated from the sexual assault kit.” The results of M.S.’s rape kit showed one swab

from M.S.’s neck that contained “unknown DNA.”

       {¶16} There was no testimony from Det. Harasimchuk about a condom, the name

“Harry or Henry,” or M.S.’s assailant being bald or having tattoos. By May 2013, the

police were unable to develop a suspect from this information, and the case went cold.

       {¶17} Cleveland police officer Timothy McGinty testified that he responded to a

sexual assault call at M.S.’s house on December 23, 2012. Officer McGinty testified that

the front door jamb was pushed out, indicating forced entry, and there was “some kind of

lamp globe that’s broken on the floor.” Officer McGinty testified that M.S. was “very

upset,” and he requested EMS transport her to the hospital.            Furthermore, Officer

McGinty testified that he went back to M.S.’s house after accompanying her to the

hospital to look for a fingernail that M.S. stated broke off during the attack.

       Q:     Okay. And included in your work was a visit to Fairview Hospital
              and then a return visit to the house to look for a fingernail?

       A:     Correct.

       Q:     * * * Did you look for a condom wrapper while you were at the
              scene of the house?

       A:     We looked for any kind of evidence.

       Q:     Were you ever told about a condom wrapper?

       A:     No.
      {¶18} Meredith Molnar testified that, in 2012, she was working as a sexual assault

nurse examiner (“SANE nurse”) at Fairview Hospital. On December 23, 2012, she

examined M.S. for a sexual assault. Molnar testified that she asked M.S. what happened

and M.S. reported to her that the following occurred:

      Me and my fiancé and my kids were chilling in my house watching TV and
      my fiancé was getting ready to go to the bus for work and I was getting my
      kids ready for bed around 9 p.m. I went to the hallway to get clothes and
      into the kitchen to get food for dinner and into the bathroom to wash [C.M.]
      up. She was in the tub. I told her to give me a few minutes to get dinner
      ready and she said okay.

      Then I went into the hallway and I heard someone banging really loud on
      the front door. I waited in the hallway and someone was banging again on
      the front door, so I went to go see who it was through the curtain on the
      door and the man bum-rushed the door somehow. The door hit me on my
      head and I stumbled back and he got past me in the hallway in the house,
      and I heard my daughter yell out for me, and I think it scared him or
      something and he started choking me from behind with one of his arms and
      my mouth started foaming and I think I passed out.
      I woke up because my daughter was hitting my legs above my knees yelling
      at me to get up. I woke up and I didn’t see him and my shorts were messed
      up and down to my thighs. My shirt was still on. I panicked and all I
      could do is cry.

      My daughter called her auntie, who lived down the street, and she came
      over and called 911.

      {¶19} Molnar testified that M.S. assumed she was penetrated vaginally, because

her pants were down, “but she was unsure if a penis or fingers were penetrating her

vagina.” Furthermore, M.S. indicated “that she thinks she remembers performing oral

sex” on the offender. Based on these allegations, Molnar took swabs of M.S.’s vaginal

and oral cavities, as well as other areas of her body, including a “dried stain” of M.S.’s
neck “because she stated [she] was being choked by the assailant with one arm.” Molnar

explained that for a dried stain, “we will dip sterile swabs in sterile water and swab that

area for possible DNA.”

       {¶20} Molnar also took pictures of M.S.’s neck, on which was a “linear superficial

laceration.” M.S. had additional “fresh” bruising on her chin, upper back, left arm, wrist,

and hand, and both knees. Molnar testified that M.S. was “very emotional, crying,

shaking, talking very quickly.” According to Molnar, M.S. indicated to her that Ladson

left the house prior to the incident occurring. Nothing in Molnar’s testimony or M.S.’s

medical records indicated a description of M.S.’s attacker, including whether he was bald

or had tattoos. There is also no mention of the name “Harry or Henry”; rather, M.S.’s

medical records indicated that the attacker was a “stranger.” Additionally, a checklist

that is part of M.S.’s medical records asked if a condom was used at the time of the

assault, and the box checked is “Unsure.”

       {¶21} Hristina Lekova is a DNA analyst at the Cuyahoga County Regional

Forensic Science Laboratory, and she processed M.S.’s rape kit in January 2013.

According to Lekova, “Marcus Ladson’s DNA is present in the sperm fraction of the anal

swab and the cutting from the crotch area of the underpants. It’s also in the sperm

fraction of the vaginal swab * * *. He’s also part of the mixture in the dried stain on the

neck * * * as well as the fingernail scrapings.”
       {¶22} No “seminal fluid” was found in M.S.’s oral swab. An enzyme consistent

with vaginal fluid or saliva was found in M.S.’s oral swab, although Lekova did not reach

a conclusion regarding the oral swab, other than the enzyme “did not come from the

seminal material.” The state asked Lekova, “if somebody was wearing a condom and put

a condom in a victim mouth and had vaginal fluid on that condom, would that be

consistent with your findings?” Lekova answered, “Yes, that’s possible for that vaginal

fluid to be transferred in the mouth cavity.”

       {¶23} Other than Ladson’s and M.S.’s DNA, an unknown DNA profile was found

on the “dried stain” swab taken from M.S.’s neck. This unknown DNA profile was

uploaded to the CODIS database, and the case went cold.

       {¶24} Lekova’s involvement in this case resumed in December 2015, when she

was given a reference swab of Jordan’s DNA that was submitted in another case.

Lekova testified that “Jordan could not be excluded as a possible contributor to the DNA

mixture obtain from * * * the dried stain” found on M.S.’s neck. According to Lekova,

the material of the dried stain, i.e., what kind of bodily fluid, was unknown. Asked if

Jordan’s DNA was found in M.S.’s vaginal swab, Lekova replied, “There is no Mr.

Jordan in the vaginal swab.”       Lekova further explained that if an offender uses a

condom, she would not expect to find his DNA in the victim’s vaginal swab.

       {¶25} Cleveland police detective Karl Lessman testified that he works in the

CODIS Task Force of the Sex Crimes Unit. In October 2015, he received information
from the coroner’s office identifying Jordan as “a hit” in M.S.’s cold case. Det. Lessman

compiled a photo array and, along with former Det. Harasimchuk, went to M.S.’s house to

see if she could identify her attacker. M.S. picked Jordan’s photo out of the lineup. Det.

Lessman located Jordan and took a bucal swab from him, which was sent to the DNA lab.

Jordan’s DNA was identified as a match with the DNA found on the dried stain on M.S.’s

neck.

                               Sufficiency of the Evidence

        {¶26} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where

the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.

29(A) and sufficiency of the evidence require the same analysis. State v. Taylor, 8th Dist.

Cuyahoga No. 100315, 2014-Ohio-3134. “An appellate court’s function when reviewing

the sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Driggins, 8th

Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997).

        {¶27} The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Vickers, 8th Dist.
Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991).

       {¶28} In the case at hand, Jordan was convicted of the following offenses:

Two counts of rape in violation of R.C. 2907.02(A)(2), which states that “[n]o person shall

engage in sexual conduct with another when the offender purposely compels the other

person to submit by force or threat of force”; one count of aggravated burglary in violation

of R.C. 2911.11(A)(1), which states in pertinent part that “[n]o person, by force * *

* shall trespass in an occupied structure * * * when another person * * * is

 present, with purpose to commit * * * any criminal offense, if * * * [t]he offender

 inflicts * * * physical harm on another * * *”; and one count of kidnapping in

violation of R.C. 2905.01(A)(4), which states in pertinent part that “[n]o person, by force *

* * shall * * * restrain the liberty of the other person * * * [t]o engage in sexual activity *

* * with the victim against the victim’s will * * *.”

       {¶29} Jordan argues that, as a matter of law, evidence that he “could not be

excluded” from the DNA found on the dried stain and M.S.’s inconsistent statements

about knowing her attacker are insufficient evidence to convict him of rape and the other

associated offenses.

       {¶30} These arguments are best addressed under a manifest weight of the evidence

theory. This court has held that “there is no requirement, statutory or otherwise, that a

victim’s testimony be corroborated as a condition precedent to a rape conviction.”
Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, at ¶ 39. At trial, M.S. testified

that Jordan “rushed in” to her house uninvited, forcefully raped her vaginally and orally,

choked her, and restrained her to the point that she was not free to move. This evidence is

sufficient to convict Jordan of the offenses with which he was charged.

      {¶31} Accordingly, Jordan’s first assigned error is overruled.

                            Manifest Weight of the Evidence

      {¶32} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶

25, the Ohio Supreme Court addressed the standard of review for a criminal manifest

weight challenge, as follows:

      The criminal manifest-weight-of-the-evidence standard was explained in

      State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. In

      Thompkins, the court distinguished between sufficiency of the evidence and

      manifest weight of the evidence, finding that these concepts differ both

      qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held

      that sufficiency of the evidence is a test of adequacy as to whether the

      evidence is legally sufficient to support a verdict as a matter of law, but

      weight of the evidence addresses the evidence’s effect of inducing belief. Id.

      at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose

      evidence is more persuasive — the state’s or the defendant’s? We went on to

      hold that although there may be sufficient evidence to support a judgment, it
       could nevertheless be against the manifest weight of the evidence. Id. at 387,

       678 N.E.2d 541. “When a court of appeals reverses a judgment of a trial

       court on the basis that the verdict is against the weight of the evidence, the

       appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s

       resolution of the conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing

       Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

       {¶33} An appellate court may not merely substitute its view for that of the jury, but

must find that “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.” Thompkins at 387. Accordingly, reversal on manifest weight grounds

is reserved for “the exceptional case in which the evidence weighs heavily against the

conviction.” Id.

       {¶34} Jordan argues that he was not the man who raped M.S.: “what is more likely

is that Marcus Ladson attacked [M.S.] and she concocted a story to protect herself and her

children from any retribution from Ladson.” To support this argument, Jordan points to

evidence that only Ladson’s DNA — and not Jordan’s DNA — was found in M.S.’s anal

and vaginal swabs, as well as in the scrapings from underneath M.S.’s fingernails.

Ladson’s and Jordan’s DNA were found in the dried stain, and neither Ladson’s nor

Jordan’s DNA was found in M.S.’s oral swab. Jordan also argues that M.S.’s testimony

was inconsistent and, thus, not credible.
       {¶35} The state, on the other hand, argues that the weight of the evidence supports

Jordan’s convictions. M.S. testified that Jordan choked and raped her. M.S. further

testified that “I guess he was — had used a condom,” which allegedly explains why

Jordan’s DNA was not found in her vaginal area or mouth. However, Jordan’s DNA was

found on the dried stain from M.S.’s neck. C.M. testified that she saw, but did not know,

the man who attacked her mother. Furthermore, M.S. testified as to why she did not

identify Jordan at the time of the rape, stating that she was scared and thought nobody

would believe her.

       {¶36} Upon review of the record, we find that M.S.’s trial testimony included the

following: Jordan was the man who raped her; she thought she saw a condom wrapper on

the floor of her house, so assumed that Jordan used a condom; at the time of the incident,

she told either the SANE nurse or the detective the name “Harry” or “Henry” and stated

that her assailant was bald and had tattoos.

       {¶37} We are aware that these details are uncorroborated. A review of the 2012

evidence shows no mention, from M.S. or anyone else, about a condom, the name of the

attacker, or tattoos.   The SANE nurse and two Cleveland police officers that were

involved in the case in 2012 testified. M.S.’s medical records, including the SANE

nurse’s report, were introduced into evidence. There are no police reports — if any exist

— that were made part of the record in this case.
       {¶38} Both police officers stated that M.S. did not say anything about a condom in

2012. No mention of a condom was made in M.S.’s medical records. Additionally, there

is nothing in the medical records, SANE nurse’s testimony, or the police officer’s

testimony indicating that M.S. told anyone that her attacker was named “Harry” or

“Henry,” that he was bald, or that he had tattoos. All of these details came to light only

after Jordan was implicated via CODIS as the unknown DNA contributor.

       {¶39} Although we do find conflicting testimony, we cannot say that the evidence

weighs heavily against conviction, nor can we say that the trial court lost its way and

created a manifest miscarriage of justice. This court has held that “the weight to be given

the evidence and the credibility of the witnesses are primarily matters for the trier of fact.”

 State v. Friedlander, 8th Dist. Cuyahoga No. 90084, 2008-Ohio-2812, ¶ 16. “When

conflicting evidence is presented at trial, a conviction is not against the manifest weight of

the evidence simply because the [factfinder] believed the prosecution testimony.” State v.

Gilliam, 9th Dist. Lorain No. 97CA006757, 1998 Ohio App. LEXIS 3668 (Aug. 12,

1998). Appellate courts are required to give deference to the factfinder’s conclusions

because “[t]he demeanor of witnesses, the manner of their responses, and many other

factors observable by [the factfinder] simply are not available to an appellate court on

review.” State v. Bierbaum, 3d Dist. Seneca No. 13-88-18, 1990 Ohio App. LEXIS 1204

(March 14, 1990).

       {¶40} Accordingly, Jordan’s second assigned error is overruled.
                            Ineffective Assistance of Counsel

       {¶41} To succeed on a claim of ineffective assistance of counsel, a defendant must

establish that his or her attorney’s performance was deficient and that the defendant was

prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, “a court need not determine whether

counsel’s performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is

not to grade counsel’s performance.” Id. at 697. See also State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 3743 (1989).

       {¶42} Jordan argues that his trial counsel was ineffective by failing to investigate

and pursue the theory that Ladson was the man who raped M.S. Jordan alleges that

counsel should have cross examined witnesses about Ladson and presented “evidence in

the public record concerning” Ladson, including Ladson’s 2015 and 2016 convictions for

murder and other gang-related violent felonies, which resulted in a sentence of life in

prison. See State v. Ladson, Cuyahoga C.P. No. CR-15-599880 (Nov. 3, 2015), and State

v. Ladson, Cuyahoga C.P. No. CR-16-604466 (June 7, 2016).

       {¶43} The state, on the other hand, argues that counsel was not ineffective, because

courts “will ordinarily refrain from second-guessing strategic decisions counsel makes at

trial * * *.” State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 151.

Furthermore, the state argues that Jordan was not prejudiced, because there is nothing
other than speculation that the outcome of the trial would have been different had counsel

investigated Ladson further.     Additionally, M.S. has consistently maintained that her

sexual activity with Ladson was consensual.

       {¶44} We find that Jordan has failed to show that his trial counsel’s performance

was deficient and he has failed to show that he was prejudiced.       Accordingly, Jordan’s

counsel was not ineffective, and his third assigned error is overruled.

                                Prosecutorial Misconduct

       {¶45} “The test for prosecutorial misconduct is whether the prosecutor’s remarks

were improper and, if so, whether they prejudicially affected the substantial rights of the

accused. The touchstone of analysis is the fairness of the trial, not the culpability of the

prosecutor.” (Citations omitted.) State v. Eisermann, 8th Dist. Cuyahoga No. 100967,

2015-Ohio-591, ¶ 43. Prosecutorial misconduct constitutes reversible error only in rare

cases. State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993).

       {¶46} Jordan argues the state failed to turn over to the defense information

regarding Ladson’s gang and criminal activity in violation of Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady stands for the proposition that “the

suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or punishment, irrespective of the

good faith or bad faith of the prosecution.”       Id. at 87.   See also Crim.R. 16(B)(5).
According to Jordan, this evidence would have been used to impeach M.S. and explain

why she did not identify Ladson as her attacker.

       {¶47} The state, on the other hand, argues that evidence of Ladson’s criminal

history is not exculpatory and any effect it may have had on M.S.’s credibility is purely

speculative. Nothing in the record indicates that Ladson was a suspect in this case, and

there is nothing suspicious about finding M.S.’s fiancé’s DNA in the swabs taken from

M.S.’s rape kit. Furthermore, “Brady does not apply to materials that are not wholly

within the control of the prosecution. There is no need to require the state to ‘disclose’

material that is readily available to the defense.”       State   v.   McGuire,    8th   Dist.

Cuyahoga No. 105732, 2018-Ohio-1390, ¶ 24.

       {¶48} Accordingly, we find that Ladson’s criminal record is not exculpatory

evidence as envisioned by Brady. Jordan’s fourth assigned error is overruled.



                                      Cumulative Error

       {¶49} A judgment of conviction may be reversed if the cumulative effect of errors

deemed separately harmless “deprives a defendant of the constitutional right to a fair

trial.” State v. DeMarco, 31 Ohio St.3d 191, 196-197, 509 N.E.2d 1256 (1987). By its

terms, the cumulative error doctrine will not provide a basis for reversal in the absence of

multiple errors. State v. Madrigal, 87 Ohio St.3d 378, 398, 872 N.E.2d 52 (2000). Upon

review, we find that the doctrine of cumulative error is not applicable to the instant case as
we do not find multiple instances of harmless error. Jordan’s fifth assigned error is

overruled.

      {¶50} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution. The defendant’s conviction 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.



PATRICIA ANN BLACKMON, JUDGE

MELODY J. STEWART, P.J., and
ANITA LASTER MAYS , J., CONCUR
