[Cite as State v. Hartman, 2016-Ohio-2883.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :   Appellate Case No. 26609
         Plaintiff-Appellee                         :
                                                    :   Trial Court Case No. 14-CR-834
 v.                                                 :
                                                    :   (Criminal Appeal from
 MARK HARTMAN                                       :    Common Pleas Court)
                                                    :
         Defendant-Appellant                        :
                                                    :

                                               ...........
                                              OPINION
                              Rendered on the 6th day of May, 2016.
                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

S. ADELE SHANK, Atty. Reg. No. 0022148, Law Office of S. Adele Shank, 3380 Tremont
Road, 2nd Floor, Columbus, Ohio 43221-2112
and
LAWRENCE J. GREGER, Atty. Reg. No. 0002592, Suite 1100 Liberty Tower, 120 West
Second Street, Dayton, Ohio 45402

        Attorneys for Defendant-Appellant

                                              .............

FAIN, J.

        {¶ 1} Defendant-appellant Mark Hartman appeals from his conviction and
                                                                                           -2-


sentence on three counts of Rape. Hartman sets forth fifteen assignments of error, alleging

numerous issues involving ineffective assistance of counsel, a defective indictment, the

improper admission of hearsay, a confrontation clause error based on the admission of

scientific evidence from an improper source, and that his convictions are both unsupported

by sufficient evidence and against the manifest weight of the evidence. Hartman also

argues that the cumulative effect of all errors requires reversal. The State asserts that

Hartman was not prejudiced by any of the alleged errors.

       {¶ 2} We conclude that sufficient evidence was presented to support the

convictions and that the convictions are not against the manifest weight of the evidence.

We conclude that the indictment was not defective, that any errors regarding the admission

of hearsay were harmless, and that trial counsel’s strategic decisions, if falling below an

objective standard of reasonable representation, are not sufficiently prejudicial to conclude

that there is a reasonable probability that the outcome of the trial would have been different

but for the ineffective assistance of counsel. We conclude that the potential error which

may have affected the defendant’s right to confrontation was waived.              Finally, we

conclude that even considered cumulatively, any errors are not sufficiently prejudicial to

merit reversal. Accordingly, the judgment of the trial court is Affirmed.



                         I. Late Night Party Leads to Sexual Encounter

       {¶ 3} During his winter break from college, Mark Hartman agreed to spend the

evening with his best friend, Gordon, who was housesitting at the home of a family friend.

Hartman, Gordon, and one other friend were drinking heavily. Gordon texted a female

friend, Courtney, inviting her to the party. Courtney agreed, and brought two of her
                                                                                             -3-


girlfriends with her, M.W. and Cassie. The women arrived at the party around 11:00 p.m.

Some time during the evening, M.W. texted her parents to let them know she would not

be returning home that evening. After about one hour at the party, Cassie texted her

friends to silently communicate that she wanted to leave, because she was allergic to the

dog in the house. Courtney and M.W left the party and took Cassie back to Courtney’s

house, where she had left her car. M.W. and Courtney returned to the party after 1:00 a.m.

and joined the men in their drinking and card-playing.

       {¶ 4} After the third male went to bed, Courtney and Gordon were in the bathroom

together, which left M.W. and Hartman alone in the living room. M.W. testified that she

wanted to go to bed, and Hartman agreed to show her to a bedroom. M.W. testified that

she was a willing participant when Hartman began to kiss her. After this point, M.W.’s and

Hartman’s versions of the facts began to diverge.

       {¶ 5} M.W. testified that after she and Hartman entered the bedroom, he initiated

kissing, and she was okay with that. She testified that as Hartman continued to kiss her,

he put his hand up her shirt, she said no, and he stopped. M.W. testified that “then we

kept kissing and he pushed me onto the bed, and then he went up my shirt again. And

again I said no. Which was fine. So we kept - - we kissed again. And then that’s when he

started to go down my pants, and I said no. And that’s when it didn’t stop. He just kept

saying things like, it’s fine, it will be okay, it will be fun, stuff like that. So then he went

ahead and took off my shirt and bra.” Trial Transcript at 29.

       {¶ 6} M.W. testified that she began to get nervous because she was not sure what

was going to happen. She testified that Hartman continued to go down her pants again as

he was kissing her, and she kept saying “no, that I didn’t want to do that.” Id. at 30. She
                                                                                          -4-


described that he removed her shirt, bra, and leggings, and then removed his own clothes.

She testified, “that’s when I basically just started to get really scared about the situation

and wasn’t sure how to handle the situation.” Id. She explained the basis of her fear by

testifying:

               I was scared because I knew that I was not as strong as he was,

       and I knew that if he would have done anything like hit me or anything like

       that I would have been out and I wouldn’t have really remembered what had

       happened. And it was more important to me to remember what was

       happening to me than not know what was happening to me. As a girl

       growing up in your teenage years, you hear a ton of stories about what

       people can do to you and what, you know, strangers do and you don’t know

       the person and you’re not sure what they’re going to do. So it just really

       scared me to not - - like and I didn’t know who was around me. I didn’t know

       where Courtney was. I didn’t know where anyone else in the house was.

       And I just got really scared that something bad might have happened to me.

       And then I kept thinking that in this situation I can outsmart the situation,

       and you know, I can get out the smart way. And I like have been told how

       to get out of these situations and how to be smart. So that’s what I kept

       thinking, was how I was going to get out because I knew I wasn’t strong

       enough. And I was worried about being hit, or something.

Id. at 32.

       {¶ 7} M.W. testified that Hartman continued to kiss her – causing the hickeys on

her neck, and he continued to touch her in different places, including penetrating her
                                                                                              -5-


vagina with his fingers. When asked what she was doing at this point, M.W. responded:

              I was just sitting there. A few times I had started to go along with it

       because I thought that if I went along with some of it, he might let me go

       and he might think that I was like kind of into it, too, and that if he thought

       that, that he might let me leave or like go and do something to the point

       where I could try and get out and escape. But basically, the whole time I

       would say no before and I just kind of sat there. I wasn’t really into it or doing

       anything back. I was just there.

Id. at 35.

       {¶ 8} M.W. testified that Hartman proceeded to penetrate her vagina with his penis

after she said no, and that he kept saying “like its okay, it will be fine, it will be fun, don’t

worry about it.” Id. at 36. M.W. testified that she kept saying no, and was numb because

she was so scared. She testified that he stopped, took a break, and then began touching

her again, and again penetrated her vagina with his penis. Afterwards, M.W. testified that

she left the room and went into the bathroom, and that Hartman followed her, and began

kissing her again. She described that he grabbed her arms, using enough force to pull her

into the shower with him. She again testified that she “started to go along with it, too,

because I was scared it was going to happen again and I wanted to get out of the situation,

and I was like maybe -- again, I kept thinking the same thing. If I go along with this, there

might be a chance that I can get out of this situation. So that’s what I kept thinking the

whole time was if I go along with this for a little bit, there might be a chance that I can get

out and this wouldn’t have happened to me.” Id. at 40.

       {¶ 9} M.W. testified that after they showered, they returned to the bedroom, and
                                                                                               -6-


Hartman began kissing her again, pushed her back onto the bed and again he penetrated

her vagina with his penis. M.W. testified that “I was just so numb and didn’t really feel like

fighting back because I was so scared. And I was like, you know what, I’ll just let it happen

and then it will be done and then I’ll get out of the situation.” Id. at 41.   M.W. testified that

when he was done, she attempted to leave the bed, but he pulled her back into the bed.

When she thought Hartman was asleep, she tried to move, but he was still awake and he

asked her to stay. M.W. testified that she agreed to stay there with him “because I didn’t

want anything to happen again.” Id. at 42.

       {¶ 10} Hartman’s version of the facts was presented though the admission of a

written statement he gave to the police the day after the event, State’s Ex. 24, the

testimony of the officer who interviewed him, and from Hartman’s testimony at trial.

Hartman admitted that he was intoxicated earlier in the evening, but he testified that he

had stopped drinking alcoholic beverages, and was drinking water before the sexual

encounter. He testified that M.W. initiated intimacy by kissing him before they went to the

bedroom. He testified that they engaged in a good amount of kissing, and when he began

to feel her breasts, and when he slid his hand down her pants, he specifically asked if she

would like to have sex, and she answered yes. He testified that she willingly participated

in the sexual encounter by helping to remove her own clothes and his clothes, asked him

to squeeze her breasts and guided his hand, switched positions, and upon request willingly

engaged in oral sex. Hartman testified that the only time she said “No” was when he asked

if “we could have sex until we finished, and she said no at that time.” He stated that he

stopped after she said “No,” and then they conversed a bit, talking about life, relationships

and school, and then he asked again “if we could finish,” and she said, “Yes, go ahead.”
                                                                                           -7-


Because he did not have a second condom, he asked if she was on birth control, and she

replied, “you really think I would have sex with a random 20 years old without birth control?”

His testimony that he pulled out and ejaculated on the bed was later corroborated by DNA

testing on the bed coverings. The fact that M.W. was taking birth-control medication was

reflected in hospital records.

       {¶ 11} The victim’s testimony reflects that she did have her cell phone with her that

evening -- she received a text from the other female at the party that she wanted to go

home, and she texted her parents to tell them she would not be coming home that evening.

The text messages that M.W. and her friend Courtney sent to each other later that morning

were admitted into evidence as defendant’s Ex. H. In the text messages, M.W. expressed

reluctance about reporting the sexual assault, in the following exchange:

       M.W.:         I need to think about if I want to press charges or not.

       Courtney:     What are you thinking?

       M.W.:         I don’t know. I really don’t know.

       Courtney:     Are you wanting to confront him?

       M.W.:         No. I don’t ever want to talk to him. I just don’t know if I should

       press charges and it’ll be big because “rape in the [R.] house.”

       Courtney:     I didn’t even think of that. He needs to know what he did was

       wrong. Was protection used? And did you shower before or after? As far as

       the [Rs], oh well.

       M.W.:         I know. I agree but I can’t handle a big thing. I can’t even

       remember things because I was so in shock. I’m not sure if he did it [or] not.

       And in between.
                                                                                          -8-




       {¶ 12} After M.W. told her parents what had happened to her, she was taken to

the hospital, arriving at 3:39 P.M. She was initially examined by an ER doctor, then she

talked to the police detective, and then she was referred to a nurse designated as a “sexual

assault nurse examiner.”1 This nurse interviewed M.W., making notes, Ex. 20, which

recorded the victim’s allegations as follows:

              Courtney and I went back to the house that one of the guys was

       housesitting for. Me and Mike was taking a tour of the house when he

       showed me to the bedroom which was downstairs. Mike kissed me on the

       lips and tried to take my shirt off and I said no, I’m not doing that. He

       (clarified with patient that he was Mike) kept kissing me over and over again

       and I kept yelling at him, telling him to stop. That’s when things went from

       bad to worse. Mike pushed me on the bed and I landed on my back. He

       kept trying to kiss me and this time pulled off my shirt. He held my hands

       down beside me and kissed all over my neck, face and chest. He (clarified

       with patient that he is Mike) pulled off my leggings. I kept telling him no, get

       off of me, but he didn’t. He had sex with me and stuck his hands inside of

       me. I managed to get free and go to the bathroom, and he followed me in

       there, grabbing my arms trying to pull me in the shower, asking me to take

       a shower with him. When I wouldn’t he got mad and pulled on my arms back

       into the bedroom. He raped me again. Clarified with patient that Mike stuck



1
 The nurse testified that she had attended a 40-hour class in forensics, but she was not
certified as a sexual assault nurse examiner.
                                                                                           -9-


       penis and hands inside of vagina. I kept trying to leave but he wouldn’t let

       me. My friend finally came upstairs and got me out of there.

       {¶ 13} The medical records also indicate that during the process at the hospital,

the victim’s parents were present, and also present were the victim witness advocate, an

Oakwood police officer and an Oakwood police detective. The medical records confirm

that M.W. was not physically injured during the assault, other than the neck bruising

referred to as hickeys.      M.W. testified that since the event, she is no longer a social

person, that she is scared to do anything, and no longer goes anywhere alone.

       {¶ 14} The day after the alleged incident, defense counsel advised Hartman to

create a written description of everything about the incident, which was given to police two

days after the incident. Defense counsel accompanied his client to two police interviews.

Hartman freely answered all questions asked during the interviews.



                            II. The Course of Proceedings

       {¶ 15} Hartman was indicted on three counts of Rape, felonies of the first degree,

in violation of R.C. 2907.02(A)(2). About a month after the indictment, the defendant

waived, in writing, his right to a jury trial and elected to have his case heard by the trial

judge, after acknowledging that he had a constitutional right to a trial by jury.

       {¶ 16} Pertinent to this appeal, we note that Hartman did not move to dismiss the

indictment, did not request a bill of particulars, and did not file any motions regarding

discovery, until after the trial.

       {¶ 17} A two-day trial was had before the trial judge, acting as the trier of fact.

Ten days after the trial, the trial court made the following announcement in open court:
                                                                                -10-




       Good afternoon everyone. We are, of course, present in the case of

State of Ohio v. Hartman, 2014-CR-834. Obviously, we are here for me to

announce the verdicts that I have arrived at in this case, following the

presentation of the evidence during the two day bench trial on September

29th and September 30th.

       I realize given the stakes and emotions at issue, that everyone in the

courtroom is on edge, and that includes this judge. This case, given the

circumstances, and the role I was required to play has been very difficult.

It’s been very difficult for me, and I know for all concerned.

       I also realized that many of you in this courtroom are going to be

devastated by the verdicts after they are announced, and there’s nothing I

can do about that. This will be of little help to those so devastated. I want

you to know that I considered this matter very, very carefully; and I

approached it with the diligence and the care that it deserves. This being

said, I, of course, had to make decisions and I have arrived at those

decisions and I’m now going to announce those decisions.

       Going first to Count I of the indictment, I find, based upon the

evidence presented, the applicable law and my assessment of witness

credibility that the State of Ohio proved beyond a reasonable doubt all the

essential elements of rape as charged in Count 1 of the indictment. The

State, that is, proved beyond a reasonable doubt that on December 31,

2013 and in Montgomery County, Ohio, the Defendant, Mark Hartman
                                                                                           -11-


      engaged in sexual conduct, digital penetration with M.W. by purposely

      compelling her to submit to such sexual conduct by forced [sic] or threat of

      force.

               Going into Count II, I find again, based upon the evidence presented,

      the applicable law, and my assessment of witness credibility that the State

      of Ohio proved beyond a reasonable doubt all of the essential elements of

      rape as charged in Count II of the indictment. The State, that is, proved

      beyond a reasonable doubt that on December 31, 2013 and in Montgomery

      County, Ohio, the Defendant, Mark Hartman engaged in sexual conduct,

      vaginal intercourse with M.W. by purposely compelling her to submit to such

      sexual conduct by force or threat of force.

               And finally, as it relates to Count III of the indictment, I finally find

      again, based upon the evidence presented, the applicable law, and my

      assessment of witness credibility that the State of Ohio proved beyond a

      reasonable doubt all of the essential elements of Count III, of rape as

      charged in Count III of the indictment. The State, that is, proved beyond a

      reasonable doubt that on December 31, 2013 and in Montgomery County,

      Ohio, the Defendant, Mark Hartman engaged in sexual conduct, vaginal

      intercourse with M.W. by purposely compelling her to submit to such sexual

      conduct by force or threat of force.

      {¶ 18}     Hartman moved for a new trial, arguing that reasonable doubt existed as

a matter of law because the victim’s testimony was not consistent with the substantive

evidence, that the court should have considered the lesser-included offense of Sexual
                                                                                            -12-


Battery, and that the State of Ohio failed to fully disclose all exculpatory evidence. The

trial court conducted a hearing on the motion for a new trial, and accepted testimony from

Mark Squibb, an employee of the Miami Valley Regional Crime Laboratory, and Detective

Norris from the Oakwood Public Safety Department. During trial, Squibb was qualified

as an expert in the field of DNA analysis. Squibb explained that the police gather evidence

and submit it to the laboratory for testing. Each item or exhibit submitted for testing is given

a submission number and a submittal sheet is filled out by the requesting agency

identifying the item and the type of testing requested. Once submitted it is retained in a

property room that is only accessible by individuals in the DNA section. When it is assigned

to an analyst, that person will remove it from the evidence room, keep it in their care and

custody, perform the testing, and then the item is returned to the law enforcement agency

that supplied the item. The DNA lab retains any samples found to contain DNA.

       {¶ 19} Squibb was not the analyst who performed the screening or testing. Squibb

conducted a technical review of the analyst’s work, and testified from the contents of

analyst’s report. He did not inspect the comforter or conduct any part of the extraction or

testing. At the post-trial hearing, Squibb testified that part of his review process was to

review the case notes of the lab technician, but these notes had not been requested or

provided to defense counsel. Emily Draper, who wrote the notes and performed the

testing, did not testify at trial or at the post-trial hearing. The testing generated two

Laboratory Reports, one on the rape kit and one on the comforter. Squibb’s testimony

revealed that the lab’s approach is to first test the most probative evidence to confirm or

deny that sexual activity has taken place, and if that test is positive, the testing on the

remaining swabs are deferred until some action is initiated by someone to do further
                                                                                         -13-


testing. The notes of Emily Draper were interpreted by Squibb to mean that after

Hartman’s DNA was matched with swabs from M.W.’s vagina, the lab did not test swabs

taken from rectal, oral and underwear samples or the comforter. Squibb testified that the

police originally requested testing on both the rape kit and the comforter, but once

Hartman’s DNA was found from the rape kit, they did not test the comforter until a later

time after it was requested again. From the notes he reviewed, Squibb did not know who

made that second request, or when it was made. Squibb testified that they had electronic

records of the original submittal from the law enforcement agency and the subsequent

request that caused the comforter to be tested, but he did not have those records and

could not testify to their content. In response to questions by the trial court, Squibb also

testified that he had personally added highlighting and other markings to the lab report to

assist himself in his testimony.

       {¶ 20} The trial court overruled the motion for a new trial, making the following

findings of fact:

               Mark Hartman, in the hours before the sexual conduct, consumed a

       significant amount of alcohol. M.W. and Mr. Hartman had not met before

       the December 30-31 “get together” at the [Rs’] Oakwood home. M.W., in

       fact referred to Mr. Hartman as “Mike” in the immediate aftermath of that

       which occurred. M.W. had not previously been in the [R] home, and thus,

       was not familiar with the home’s layout which, apparently, is rather unique.

       M.W. did not know where the remaining occupants of the home were as the

       critical events unfolded. M.W., in short, was confronted with the following as

       the sexual conduct occurred- a larger, stronger intoxicated individual she
                                                                                    -14-


did not know (and thus, she could not gauge how he might react) with the

events occurring in an unfamiliar home at a time when she did not know the

location of the home’s remaining occupants. The element of force regarding

each rape count must be reviewed with those facts in mind.

REVIEW OF THE RAPE COUNTS

       Mark Hartman escorted M.W. to a bedroom within the [R.] home so

that M.W. could go to bed. Mr. Hartman after escorting M.W. to the

bedroom, began kissing M.W. while they were standing near the bedroom

door. M.W. consented to the kissing initiated by Mr. Hartman.

       Mr. Hartman, as the kissing continued, placed a hand under M.W.’s

shirt and moved the hand upward toward M.W.’s breasts. M.W. indicated

she did not want this to occur with Mr. Hartman, at this point, removing his

hand from underneath M.W.’s shirt.

       Mr. Hartman, at this point, pushed M.W. onto the bed. Mr. Hartman

placed a hand underneath M.W.’s pants. M.W., once again, indicated she

did not want this activity to occur. Mr. Hartman did not withdraw his hand,

but instead told M.W. “it will be okay,” “it will be fine,” and “it will be fun.”

       Mr. Hartman, after saying these words, beg[a]n to take off M.W.’s

shirt and bra. M.W., as this was occurring said, “no” but Mr. Hartman,

ignoring M.W.’s protest, completed the removal of the shirt and bra.

Mr.Har[t]man, ignoring M.W.’s indication that she did not want the conduct

to progress, removed his clothes and M.W.’s pants.

       M.W., at this point, became frightened and unsure concerning how
                                                                              -15-


to “handle the situation.” M.W.’s fear was prompted by her recognition she

did not have sufficient strength to overcome Mr. Hartman, with this fear

including the thought that Mr. Hartman, an individual she did not know,

could render her unconscious, and if this occurred, she would not remember

what occurred. M.W. was also concerned because she did not know the

location of the home’s remaining occupants.

      Mark Hartman, after removing M.W’s clothing, continued to kiss

M.W. M.W. failed to respond with Mr. Hartman, at this point, kissing each

side of M.W.’s neck. The results of the kissing are depicted by State’s

Exhibits 4-9. Mr. Hartman, additionally, began touching M.W.’s body with

his hands and fingers, such touching included “grabbing” M.W.’s breasts

and touching M.W.’s vagina with this touching including Mr. Hartman’s

digital penetration of M.W.’s vagina. Mark Hartman at this point, initiated

sexual conduct with M.W. by inserting his penis into her vagina. M.W.,

before the penetration occurred, said “no” with Mr. Hartman responding that

it would be “okay”, it would be “fine” and it would be “fun.” The vaginal

penetration continued for a “minute or two.”

      Mark Hartman, at this juncture, removed his penis from M.W.’s

vagina. M.W. interpreted this as a “break” because soon thereafter Mark

Hartman began touching M.W. once again with this renewed touching

culminating with Mr. Hartman, for the second time, penetrating his penis

into M.W.’s vagina. This episode continued for a minute or two.

      M.W., after the second penis/vaginal penetration terminated,
                                                                                       -16-


      decided, with her thought being such activity might create an escape

      opportunity, to go into the bathroom connected to the bedroom. Mark

      Hartman, however, followed M.W. into the bathroom. Mr. Hartman, after

      entering the bathroom, began kissing M.W. Mr. Hartman then pulled M.W.

      into the shower and turned on the water. Mr. Hartman once again began

      touching M.W.’s breasts and vagina. M.W. began crying, but she placed her

      face into the running water to hide this from Mr. Hartman.

             M.W. exited the shower and informed Mr. Hartman that she did not

      “want this.” M.W. walked back into the bedroom with Mr. Hartman following.

      Mr. Hartman, at this time, started to kiss M.W. once again, and while doing

      so, pushed M.W. back onto the bed. Mark Hartman, at this point, and for

      the third time, penetrated his penis into M.W.’s vagina with this episode

      continuing for sixty to ninety seconds.

             Mark Hartman, after this last act, rolled off of M.W. M.W., thereafter,

      attempted on two occasions to leave the bedroom with each attempt

      prompting Mark Hartman’s request that she stay. M.W., fearful of what Mr.

      Hartman’s reaction may have been if she refused, stayed until Courtney,

      sometime during the morning hours, entered the bedroom. M.W., upon

      Courtney’s arrival, quickly exited the [R.] home.

Dkt.# 80, pgs. 7-9.

      {¶ 21} Addressing the evidence on the element of force, the trial court concluded:

             Mark Hartman, as to Count I, continued his sexual advance upon

      M.W. despite her verbal indication that she did not consent to the activity.
                                                                                 -17-


Mr. Hartman pushed M.W. onto the bed, and without her consent, removed

her clothing, used his hands and fingers to touch M.W.’s breasts and

vagina, and finally, penetrated M.W.’s vagina with his penis. The conduct

constitutes force necessary to establish beyond a reasonable doubt the

force element. This conclusion recognizes the force element is, by

necessity, a relative concept, that M.W.’s resistance is not a prerequisite to

the force element, and that the force element must be viewed within the

context of M.W.’s concerns regarding Mr. Hartman’s size and strength

relative to her size and strength, that Mr. Hartman was intoxicated, that she

did not know Mr. Hartman, and that as the sexual conduct was occurring,

she did not know the location of the remaining occupants of the home.

       Mark Hartman’s conduct relating to Count 2 must be viewed within

the context of that which had already occurred. Mr. Hartman, having already

ignored M.W.’s entreaties to stop and while he remained on top of M.W.,

once again penetrated M.W.’s vagina with his penis. This conduct,

recognizing the concepts and concerns discussed above, constitutes the

force necessary to establish beyond a reasonable doubt the force element

as to Count 2.

       Turning, finally, to Count 3, Mr. Hartman’s conduct must, once again,

be viewed within the context of that which had already occurred. Mr.

Hartman, ignoring a final entreaty to stop, once again began kissing and

touching M.W., pushed her onto the bed, positioned himself on top of M.W.,

and penetrated M.W.’s vagina with his penis. This conduct, again
                                                                                        -18-


       recognizing the concepts and concerns already discussed, constitutes force

       necessary to establish beyond a reasonable doubt the element of force.

                [Fn.] Mr. Hartman’s motion vigorously argues that M.W.’s testimony

       that she at certain points “went along” with the sexual activity makes a

       finding of force impossible. M.W. testified that on occasion she did “go along

       with some of it” with the hope that by doing so Mr. Hartman might conclude

       she was “into it” with the thought being that if Mr. Hartman thought she was

       “into it” this might create an escape opportunity. M.W., however, was not

       “going along” with the sexual activity on the occasions when Mr. Hartman

       completed the described penis/vaginal penetration. M.W.’s testimony, when

       viewed in its entirety, established the element of force as to each rape

       count.

Id., pgs. 10-11.

       {¶ 22} Hartman was sentenced to four years of imprisonment for each of the three

counts of Rape, to be served concurrently. Hartman was also designated as a tier three

sexual offender, requiring lifetime registration requirements, pursuant to Chapter 2950 of

the Revised Code. Hartman appeals from his conviction and sentence.



                III. The Convictions Are Supported By Sufficient Evidence

       {¶ 23} Hartman’s First Assignment of Error asserts as follows:

                THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

       SUSTAIN THE CONVICTIONS.

       {¶ 24} Hartman was indicted for three counts of Rape, in violation of R.C.
                                                                                          -19-


2907.02(A)(2). Under this section, to obtain a conviction for Rape, the State must prove

beyond a reasonable doubt that the accused engaged in sexual conduct with another by

purposely compelling the other person to submit to the sexual conduct by force or threat

of force. Hartman has admitted that he engaged in sexual conduct with another. The

question is whether sufficient evidence was presented to prove beyond a reasonable

doubt that he purposely compelled M.W. to submit to the sexual conduct by force or threat

of force.

       {¶ 25} A challenge to the sufficiency of the evidence presents a question of law as

to whether the State has presented adequate evidence on all elements of the offense to

sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741

N.E.2d 594 (2d Dist.2000). “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. 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. Jackson, 2d Dist. Montgomery No. 26050, 2015-Ohio-5490, ¶ 41, quoting State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 26} Pursuant to R.C. 2901.22 (A), “[a] person acts purposely when it is the

person's specific intention to cause a certain result, or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is the offender's specific intention to engage in conduct of that

nature.” Therefore, in a Rape case, to prove that the defendant acted “purposely,” the
                                                                                        -20-


State must prove that it was the defendant’s intention to engage in sexual conduct by

forcefully compelling the other person to submit to the sexual conduct. “A rape occurs

only if the perpetrator purposely compels the other to submit by force or threat of force.”

State v. Wilkins, 64 Ohio St.2d 382, 385, 415 N.E.2d 303 (1980).

      {¶ 27} Ohio’s rape statute does not require proof of the victim’s lack of consent.

Ohio law does recognize certain victims incapable of giving consent, based on mental or

physical incapacity. Those exceptions do not apply in the case before us. See, e.g., State

v. Hillock, 7th Dist. Harrison No. 02-CA-538, 2002-Ohio-6897.         Consent is not an

affirmative defense, but when applicable, consent is used as a defense to challenge the

State’s evidence on the element of purposeful force or compulsion. State v. El-Berri, 8th

Dist. Cuyahoga No. 89477, 2008-Ohio-3539, ¶ 57. When consent is raised as a defense

to a charge of Rape, the test of whether consent negates a finding of force is not whether

a reasonable person confronted with similar circumstances would have understood that

the victim did not consent, the test requires the trier-of-fact to find, beyond reasonable

doubt, that the specific defendant’s purpose or intent was to commit the crime of rape.

State v. Mundy, 99 Ohio App.3d 275, 650 N.E. 2d 502 (2d Dist. 1994). As we discussed

in Mundy:

             The determination of a defendant's mental state, absent some

      comment on his or her part, must of necessity be determined by the nature

      of the act when viewed in conjunction with the surrounding facts and

      circumstances. State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d

      293, 302. This is, in fact, the well-recognized process of inferential

      reasoning. This process by necessity incorporates an objective mechanism
                                                                                           -21-


       or standard in determining the defendant's state of mind by the use of

       circumstantial evidence. The trier of fact reviews the defendant's conduct in

       light of the surrounding facts and circumstances and infers a purpose or

       motive.

Id., 99 Ohio App.3d at 288, 650 N.E.2d 502.

       {¶ 28} R.C. 2901.01(A)(1) defines “force” as any “violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” In the

case before us, the trial court did not find that Hartman used physical constraint or any

form of violence that caused physical harm during the sexual encounter. The trial court did

not find that Hartman constrained the victim in any way or that the victim exhibited physical

resistance to Hartman’s advances.         However, the trial court did find that Hartman

“pushed” M.W. onto the bed, removed her clothes, laid on top of her, and pulled her into

the shower. It has been recognized that proof of physical violence or physical resistance

is not required to establish Rape if the defendant creates in the mind of the victim the belief

that physical force will be used if the victim does not submit. State v. Umphries, 4th Dist.

Ross No. 11CA3301, 2012-Ohio-4711, ¶ 21, and ¶ 16, citing State v. Schaim, 65 Ohio St.

3d 51, 55, 600 N.E. 2d 661 (1992). “The force and violence necessary to commit the

crime of rape depends upon the age, size and strength of the parties and their relation to

each other.” State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988). “Force need not

be overt and physically brutal, but can be subtle and psychological. As long as it can be

shown that the rape victim's will was overcome by fear or duress, the forcible element of

rape can be established.” Umphries at ¶16, quoting State v. Fowler, 27 Ohio App.3d 149,

154, 500 N.E .2d 390 (8th Dist. 1985).
                                                                                          -22-




       {¶ 29} In the case before us, the victim testified that her will was overcome by fear,

because she believed she would be hurt if she did not submit to Hartman’s advances. To

find that her will was overcome by fear, the trier-of-fact must have sufficient evidence from

which to infer that her fear was based on some wrongful action or conduct of the defendant

that purposely compelled her to submit to the sexual conduct, against her will. In the case

before us, the trial court stated, “that the force element must be viewed within the context

of M.W.’s concerns regarding Mr. Hartman’s size and strength, that Mr. Hartman was

intoxicated, that she did not know Mr. Hartman, and that, as the sexual conduct was

occurring, she did not know the location of the remaining occupants of the house.” Dkt.

#80, pg. 10.

       {¶ 30} Hartman testified that he is 6’3”, weighed 200 pounds, and was physically

fit. Medical records reflected that M.W. is 5’3” and weighed 165 pounds. Hartman and

M.W. were both 20 years old, and both were college students. The victim testified that she

was scared because she was not as strong as Hartman, and she believed that he would

use his superior strength to hurt her if she did not submit to his sexual advances. The

victim testified that she repeatedly said “No” to Hartman during the sexual encounter. The

physical force described by the victim included her testimony that Hartman “pushed” her

onto the bed, removed her clothing, laid on top of her, and “pulled” her into the shower.

       {¶ 31} Each of the cases cited by the State addressing the issue of force is

distinguishable from the case before us. In Umphries, the victim felt compelled to submit

out of fear when she awoke during the night to find her uncle on top of her, who had broken

into the house through a window, and she begged him to stop. State v. Umphries, 4th Dist.
                                                                                           -23-


Ross No. 11CA3301, 2012-Ohio-4711. There was no admission that the victim in

Umphries was a willing participant to any part of the encounter, and she communicated

her fear by begging him to stop. Id. The victims in Whitt, Shannon, and Eskridge were

minors. State v. Whitt, 8th Dist. Cuyahoga No. 82293, 2003-Ohio-5934; State v. Shannon,

11th Dist. Lake Nos. 2002-L-007, 2002-L-008, 2004-Ohio-1669; State v. Eskridge, 38 Ohio

St.3d 56, 526 N.E.2d 304 (1988). In State v. Patel, we found sufficient evidence of force

when an employer held his employee “in a locked bathroom and inserted his finger in her

vagina against her will and while ignoring her plea to stop.” State v. Patel, 2d Dist.

Greene No. 2010CA77, 2011-Ohio-6329, ¶ 63.             Unlike in the case before us, the

defendant in Patel locked the room to prevent the victim from leaving, and no part of the

sexual encounter was consensual. Id. None of the cited cases present a fact pattern in

which a sexual encounter between adults starts out as consensual, before changing into

a non-consensual encounter.

       {¶ 32} We agree that the elements of Rape can be established when the two

participants start the sexual encounter on a consensual basis, but the consent is revoked

by words, actions or conduct that clearly communicates non-consent, the defendant fails

to respect the change in consent, and purposely proceeds to engage in sexual conduct

through force or threat of force evidenced by violence, physical restraint, or some type of

coercive or threatening conduct that creates a belief or fear that physical force will be used

if the victim does not consent. In the case before us, both the defendant’s physique -- he

was bigger and stronger than his victim -- and his conduct of pushing the victim on the

bed, removing her clothes, and pulling her into the shower, was evidence from which a

reasonable finder of fact could find that he purposely acted in a manner that induced fear
                                                                                          -24-


in the victim, compelling her to submit to his sexual conduct, against her will.

       {¶ 33} Based on our review of the record, we conclude that the State did present

sufficient evidence from which the trier of fact could conclude that Hartman purposely

compelled M.W. to submit to sexual conduct by force or threat of force. There is no

dispute that it was Hartman’s intention to engage in sexual conduct with M.W. Also, the

testimony of the victim, if believed, supports a finding that Hartman used force to compel

M.W. to submit to sexual conduct at least three times during the course of the evening.

Hartman’s First Assignment of Error is overruled.



     IV. Overruling the Motion for a New Trial Was Not an Abuse of Discretion

       {¶ 34} Hartman’s Second Assignment of Error asserts:

              THE COURT ERRED WHEN IT DENIED HARTMAN’S MOTION

       FOR A NEW TRIAL

       {¶ 35} Pursuant to Crim. R. 33(A)(4), a new trial may be granted “if the verdict is

not sustained by sufficient evidence or is contrary to law.” The decision whether to grant

a motion for a new trial lies within the sound discretion of the trial court and will not be

disturbed on appeal absent an abuse of that discretion. State v. Hayden, 2d Dist.

Montgomery No. 26524, 2015-Ohio-3262, ¶ 30, citing State v. Schiebel, 55 Ohio St.3d

71, 564 N.E.2d 54 (1990). An “abuse of discretion” implies an arbitrary, unreasonable,

or unconscionable attitude on the part of the court. State v. Ulery, 2d Dist. Clark No. 2010-

CA-89, 2011-Ohio-4549, ¶ 9, citing State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144

(1980). “A decision is unreasonable if there is no sound reasoning process that would

support that decision. It is not enough that the reviewing court, were it deciding the issue
                                                                                              -25-


de novo, would not have found that reasoning process to be persuasive, perhaps in view

of countervailing reasoning processes that would support a contrary result.” State v. Rossi,

2d Dist. Montgomery No. 24740, 2012-Ohio-2545, ¶ 12, citing AAAA Enterprises, Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d

597 (1990).

       {¶ 36} Hartman asserts three separate arguments related to alleged errors in the

trial court’s denial of his motion for his new trial. The first two arguments are both

concerned with the evidence utilized by the trial court to conclude that the element of force

was established by proof of the victim’s subjective thoughts and concerns instead of the

defendant’s conduct. As discussed above, lack of consent is not an element to prove the

offense of Rape, but it is a relevant factor in determining whether force was used to compel

the victim to submit to the sexual conduct against her will. In the decision denying the

motion for a new trial, the trial court did not rely solely on the victim’s conduct, thoughts or

subjective point of view in concluding that Hartman’s conduct was sufficient to induce the

victim’s fear. The trial court looked at the totality of the circumstances, including the relative

size and strength of the defendant and his victim, Hartman’s physical contact with the

victim when he pushed and pulled her, removed her clothes and laid on top of her, his

conduct in ignoring the victim’s repeated verbal statements of “No,” the victim’s

unfamiliarity with her surroundings, and the victim’s reaction to her fears. The trial court,

as the trier of fact, could reasonably infer from the totality of the circumstances, and from

the victim’s testimony, that she was too scared to resist, and that Hartman compelled her

to submit to his sexual conduct against her will.

       {¶ 37} Hartman also argues that the trial court’s decision denying the motion for a
                                                                                           -26-


new trial erroneously concluded that three separate instances of rape occurred by penile

penetration, which conflicted with the trial court’s earlier pronouncement that the

convictions were based on one instance of digital penetration and two instances of penile

penetration. Hartman argues that the trial court’s revision of the type of sexual conduct

proven to establish the three charges of Rape shows that the evidence was insufficient to

support the convictions, and that the trial court therefore abused its discretion by denying

the motion for a new trial. As noted earlier, the record does support the conclusion that

the State presented sufficient evidence to allow the trier of fact to find, beyond a

reasonable doubt, that Hartman committed three offenses of Rape. Accordingly, the trial

court did not err by overruling the motion for a new trial, notwithstanding possible confusion

by the trial court, in ruling on the motion, as to the particular offenses comprising the three

Rape convictions. Hartman’s Second Assignment of Error is overruled.



      V. The Convictions Are Not Against the Manifest Weight of the Evidence

       {¶ 38} For his Third Assignment of Error, Hartman asserts:

              HARTMAN’S CONVICTION IS AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE.

       {¶ 39} In determining whether a verdict is against the manifest weight of the

evidence, we are required to review the entire record, to weigh the evidence and all

reasonable inferences, and to consider the credibility of the witnesses. State v. Jackson,

2d Dist. Montgomery No. 26050, 2015-Ohio-5490, ¶ 48, citing State v. Hancock, 108 Ohio

St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 39. In determining whether a verdict is

against the manifest weight of the evidence, the appellate court acts as a “thirteenth juror.”
                                                                                           -27-

Id. at ¶ 49, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

“Under this standard of review, the appellate court weighs the evidence in order to

determine whether the trier-of-fact ‘clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” Id.

       {¶ 40} Unlike the sufficiency-of-evidence standard of review, a reviewing court

does not construe the evidence most strongly in favor of the prosecution when using a

manifest-weight standard of review. State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-

3395, 813 N.E. 2d 964 (2d Dist.). A manifest-weight-of-the-evidence argument questions

the believability of the evidence and asks a reviewing court to determine which of the

competing inferences is more believable. Id. “However, the appellate court may not

substitute its judgment for that of the trier-of-fact on the issue of the credibility of the

witnesses unless it is patently apparent that the factfinder lost its way.” Id. at ¶ 81, citing

State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997).

       {¶ 41} In State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684

(August 22, 1997), we explained:

               [B]ecause the factfinder ... has the opportunity to see and hear the

       witnesses, the cautious exercise of the discretionary power of a court of

       appeals to find that a judgment is against the manifest weight of the

       evidence requires that substantial deference be extended to the factfinder's

       determinations of credibility. The decision whether, and to what extent, to

       credit the testimony of particular witnesses is within the peculiar

       competence of the factfinder, who has seen and heard the witness.

       {¶ 42} In the case before us, we must give substantial deference to the trial judge,
                                                                                             -28-


who acted as the trier of fact, and who had the opportunity to see and hear the witnesses

in judging their credibility. We find nothing in the record from which to conclude that the

trial judge patently lost his way in finding the victim to be a more credible witness than the

defendant. Although both the victim and the defendant were drinking alcohol prior to the

sexual encounter, which may have affected their memory of the event, we do not find

sufficient indicia of untruthfulness in the victim’s recollection of the events, or the other

witnesses who supported her testimony, that would require the trier of fact to find that her

testimony lacked credibility. “The trier of fact is better situated than an appellate court to

view witnesses and to observe their demeanor, gestures, voice inflections and to use

those observations in weighing credibility.” State v. Jackson, 2d Dist. Montgomery No.

26050, 2015-Ohio-5490, ¶ 50, citing State v. Lewis, 4th Dist. Scioto No. 01CA2787, 2002

WL 368625 (Feb. 25, 2002). Hartman argues that the victim’s trial testimony and the

statements she made the day after the incident contain several inconsistencies and

admissions that should destroy her credibility. Hartman argues that the victim made an

admission of her lack of recall in a text to her friend, which stated, “I can’t even remember

things because I was so in shock. I’m not sure if he did it [or] not. And in between.” The

State suggests that this comment was made in reference to her memory of whether

Hartman was using a condom, or whether he completed the act of sexual intercourse. “A

trier of fact is free to believe all, part or none of the testimony of each witness.” Id., citing

State v. Long, 127 Ohio App.3d 328, 713 N.E.2d 1 (4th Dist.1998). In the case before

us, the trier of fact was in the best position to judge the victim’s credibility on the version

of the facts she gave from the witness stand at the time of trial.

       {¶ 43} The outcome of this case rested on the credibility of the witnesses.
                                                                                         -29-


Respecting the trial court’s judgment on credibility, we conclude that the convictions are

not against the manifest weight of the evidence. This is not the exceptional case in which

the finder of fact lost its way. Hartman’s Third Assignment of Error is overruled.



                         VI. Ineffective Assistance of Counsel

      {¶ 44} In all of the following assignments of error, Hartman alleges that he was

denied the effective assistance of counsel:

             IV.    COUNSEL     WAS     INEFFECTIVE       WHEN      HE     ADVISED

      HARTMAN TO GIVE THE POLICE A WRITTEN STATEMENT AND TO

      SUBMIT TO TWO ROUNDS OF QUESTIONING

             V. TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED

      TO MOVE TO DISMISS THE INDICTMENT

             VI. TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED

      TO REQUEST A BILL OF PARTICULARS

             VII.   TRIAL   COUNSEL       WERE      INEFFECTIVE       IN   CROSS-

      EXAMINATION WHEN THEY INTRODUCED EVIDENCE ON ELEMENTS

      THE STATE HAD FAILED TO PROVE, HEARSAY, AND OTHERWISE

      INADMISSIBLE EVIDENCE

             VIII. DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY

      FAILED TO OBJECT TO HEARSAY INTRODUCED BY THE STATE

             IX. COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO

      INVESTIGATE THE CASE

      {¶ 45} In order to prevail on a claim of ineffective assistance of counsel, a defendant
                                                                                           -30-

must show both deficient performance and resulting prejudice. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Two

elements must be demonstrated: 1) that counsel's representation fell below an objective

standard of reasonableness; and 2) that counsel's errors were serious enough to create a

reasonable probability that, but for the errors, the outcome of the proceeding would have

been different. Id. In our review of an ineffective assistance of counsel claim, “we will not

second-guess trial strategy decisions, and ‘a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance.’ ”

State v. English, 2d Dist. Montgomery No. 26337, 2015-Ohio-1665, ¶ 10, quoting State v.

Mason, 82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998).

       {¶ 46} Hartman argues six different grounds for establishing that he was denied

the effective assistance of counsel guaranteed by the Sixth Amendment. Hartman claims

that his counsel was ineffective when he was directed to provide a written statement to

the police, and to cooperate fully in a police interrogation. In hindsight, Hartman is able to

identify that this strategy of his defense counsel to fully cooperate with the investigation

against him caused difficulty in defending inconsistent statements that may have impacted

his credibility at trial. “Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel's perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel.” State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 37

(2d Dist.), citing Strickland, supra; State v. Parker, 2d Dist. Montgomery No. 19486, 2003-

Ohio-4326, ¶ 13. Throughout the trial, it is apparent that the defense strategy was to
                                                                                         -31-


prove that the victim consented to the sexual conduct, and that Hartman did not purposely

force her to submit to the sexual conduct. Both his written statement and the statements

Hartman made to the police consistently asserted that the victim had consented to the

sexual encounter. Hartman and M.W. are the only two witnesses to the sexual conduct,

which would inevitably lead to a question of which witness to believe. It was reasonable,

in light of counsel’s perspective at the time, to pursue a strategy not to let the victim’s

version of events go unanswered in the investigative stage. We conclude that counsel’s

strategy of cooperation with the police investigation, under the circumstances of this case,

did not constitute ineffective assistance of counsel.

       {¶ 47} We also conclude that Hartman was not denied the assistance of effective

counsel when defense counsel failed to file a motion to dismiss the indictment. The

indictment charging Hartman with three counts of Rape did contain all the elements of the

offenses set forth in the Rape statute, R.C. 2907.02(A)(2). Although the indictment did not

include the name of the victim and the nature of the sexual conduct, the name of the

alleged victim was never in question, and the nature of the sexual conduct would have

been available to defense counsel by moving for a bill of particulars. While it may be

argued, again from hindsight, that defense counsel should have moved for a bill of

particulars, Hartman has not established that he was prejudiced by counsel’s failure to do

so. In his written statement, and in his trial testimony, Hartman admitted engaging in a

sexual encounter that included digital penetration, vaginal, anal and oral intercourse with

M.W., so disputing that sexual conduct occurred was not part of his defense. To establish

that he was prejudiced, Hartman would need to establish that but for counsel’s failure to

move for a bill of particulars, there is a reasonable probability that the outcome of the
                                                                                           -32-


proceeding would have been different. As discussed above, the guilty verdicts in this

case resulted from the trier of fact’s decision to find the victim’s testimony to be more

credible. Under these circumstances, we conclude that the details provided by a bill of

particulars would not have resulted in a reasonable probability of a different outcome.

       {¶ 48} We agree with Hartman’s assertion that defense counsel, on cross-

examination of the victim, brought up factual matters not presented during the direct

examination of the victim that may have helped the State prove the element of force.

Specifically, the record reveals that defense counsel asked the victim to confirm that

Hartman was “restraining” her, Trial Transcript at 74-75, that Hartman pinned her arms

down, Trial Transcript at 75-76, that Hartman held his forearm across her chest, Hartman

grabbed her wrists, grabbed her arm, and “was doing that forcefully,” Trial Transcript at

80-81. We have held that “trial counsel's decision to cross-examine a witness and the

extent of such cross-examination are tactical matters.” State v. Russell, 2d Dist.

Montgomery No. 21458, 2007-Ohio-137, ¶ 55. “A reviewing court may not second-guess

decisions of counsel which can be considered matters of trial strategy.” State v. Conley,

2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Smith, 17 Ohio St.3d 98,

477 N.E.2d 1128 (1985). “Debatable strategic and tactical decisions may not form the

basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a

better strategy had been available.” Id., citing State v. Cook, 65 Ohio St.3d 516, 524, 605

N.E.2d 70 (1992).     Because it was at least arguable that the State had presented

sufficient evidence of force relating to at least one of the Rape counts – the last one

occurring on the bed – trial counsel could reasonably have concluded that it would not be
                                                                                             -33-


safe to eschew cross-examination on the element of force.2

       {¶ 49} It appears that the strategy of defense counsel asking the victim about facts

relevant to the issue of force was an attempt to attack her credibility based on different

versions of the events she provided to the sexual assault nurse, to the detective, and

during direct examination at trial. In a case that rests entirely on the credibility of the

witnesses, a strategic choice to conduct cross-examination of the victim on factual issues

relating to elements of the offense is not automatically ineffective assistance of counsel.

In the case before us, it was a valid defense strategy to attack the credibility of the victim

through the use of prior inconsistent statements, a well-established trial strategy. See Evid.

R. 613. We conclude that Hartman was not denied the effective assistance of counsel

when reasonable trial strategy was utilized to challenge the victim’s credibility through a

cross-examination technique of raising inconsistent statements.

       {¶ 50} Hartman also argues that his counsel was ineffective based on his failure to

object to inadmissible hearsay from the testimony of the victim’s friend, Courtney, the

sexual assault nurse, and the detective who interviewed the victim at the hospital. With

respect to the victim’s friend, Courtney, Hartman claims that his counsel should have

objected to inadmissible testimony regarding the character of the victim, including her

demeanor immediately after the incident, and to specific statements made by the victim

the following morning. While opinions elicited to prove that a victim is being truthful are

generally inadmissible, a distinction has been made for testimony “which is additional

support for the truth of the facts testified to by the [victim], or which assists the fact finder



2In fact, since the three Rape sentences were ordered to be served concurrently,
acquittal on two of the Rape charges would have amounted to a Pyrrhic victory.
                                                                                           -34-

in assessing the [victim’s] veracity.” State v. Sedgmer, 7th Dist. Harrison No. 00 522 CA,

2002-Ohio-1527, ¶ 23, citing State v. Stowers, 81 Ohio St. 3d 260, 690 N.E. 2d 881 (1998).

In the case before us, defense counsel did not err by failing to object to testimony that was

admissible to assist the trier-of-fact in assessing the victim’s veracity.

       {¶ 51} With respect to the sexual assault nurse, Hartman argues that counsel’s

failure to object to the nurse’s inadmissible hearsay was prejudicial. The hospital’s

designated sexual assault nurse did testify as to statements made by the victim, after the

victim had been examined by an ER doctor, so that at the time of the interview a medical

diagnosis had already been completed. The nurse testified that her examination of the

victim was to look for injury that could be consistent with force. Trial Transcript at 177-178.

In response to the victim’s statements, the sexual assault nurse took samples of the

victim’s DNA in order to complete a rape kit, which was to assist law enforcement, not for

medical diagnosis. Ohio licensing law limits a registered nurse’s role to assessing the

patient for the purpose of providing nursing care, and a nursing diagnosis is limited to

“identification of a patient’s needs or problems which are amenable to nursing

intervention.” R.C. 4723.01; O.A.C. 4723-4-01. The victim’s statements to a nurse about

the cause and origin of the injury is inadmissible hearsay, unless “the inception or general

character of the cause of external source thereof is reasonably pertinent to diagnosis or

treatment.” Evid. R. 803(4). The only statements made to a nurse by a victim that are

admissible under Evid. R. 803(4) are statements made for the purpose of nursing

diagnosis or treatment. Therefore, a nurse’s testimony concerning statements made by a

rape victim, recorded by the nurse for the purpose of assisting a criminal investigation,

and not for nursing treatment or diagnosis, is inadmissible hearsay.
                                                                                           -35-


       {¶ 52} In the case before us, the nurse did not testify that the victim had any injuries

requiring nursing treatment, or that she provided treatment.          Even though defense

counsel failed to object to the nurse’s testimony or the admission of the nurse’s report, Ex.

20, we conclude that this was not sufficiently prejudicial to have affected the outcome of

the trial. The verdicts rested on the credibility of the victim, and no part of the nurse’s

testimony was essential to the trier of fact’s finding that all elements of the offense of Rape

had been established through the victim’s testimony. Therefore, we conclude that Hartman

was not denied effective assistance of counsel by counsel’s failure to object to the nurse’s

testimony.

       {¶ 53} Hartman also argues that his counsel was ineffective by having failed to

object to the hearsay evidence admitted through the testimony of the detective. The State

concedes that it was hearsay when the detective testified regarding the statements made

during his interview of the victim. The State does not argue that these statements were

admissible through any exception to the hearsay rule, such as an excited utterance

allowed by Evid. R. 803(2), or a present-sense impression under Evid. R. 803(1).          The

only question under this assignment of error is whether the admission of this hearsay was

prejudicial.   This question must be viewed in the same manner discussed above

regarding the defense strategy to cross-examine the victim regarding prior inconsistent

statements, which included the statements she made to the detective. As we have already

concluded, it was a reasonable defense strategy to allow the admission of the victim’s

various statements of the incident in order to challenge the victim’s credibility by pointing

out inconsistencies in these pre-trial statements with her testimony at trial. We conclude

that Hartman was not denied effective assistance of counsel as a result of counsel’s
                                                                                           -36-


strategic decision not to object to the detective’s testimony in order to allow the admission

of inconsistent statements by the victim.

       {¶ 54} Hartman also argues that counsel was ineffective as a result of counsel’s

failure to investigate the case. Hartman claims that prior to trial his counsel failed to

interview the victim’s friend, Courtney, and the lab witness, Squibb. Hartman also claims

that his counsel was ineffective as a result of counsel’s failure to seek discovery of the

notes of the forensic analyst who actually conducted the DNA tests, Emily Draper, or to

obtain the video recordings of Hartman’s police interviews. We agree that defense counsel

has an obligation to conduct a reasonable pre-trial investigation sufficient to develop

appropriate defense strategies. State v. Ayers, 5th Dist. Licking No. 98 CA 53, 1999 WL

3976 (Nov. 25, 1998), citing State v. Johnson, 24 Ohio St. 3d 87, 494 N.E.2d 1061 (1986),

and 1 A.B.A. Standard for Criminal Justice (1982 Supp.), No. 4-4.1. The defense strategy

in this case was focused on defeating the State’s claim that Hartman purposely forced

M.W. to submit to sexual conduct. This strategy necessitated an attack on the victim’s

credibility, and evidence to bolster Hartman’s credibility. As discussed above, Courtney’s

testimony was offered to support the victim’s credibility. Therefore, defense counsel’s

investigation should have included an interview with Courtney to develop a reasonable

defense strategy to discredit her testimony. Notwithstanding the failure to interview

Courtney, defense counsel did make appropriate objections during her testimony to

challenge the admissibility of hearsay and the admissibility of Courtney’s observations of

the victim’s demeanor after the incident to bolster the victim’s credibility. We conclude that

the failure to interview Courtney before trial was not sufficiently prejudicial to warrant

reversal.
                                                                                         -37-


       {¶ 55} The failure to conduct a pretrial interview of Squibb did not amount to

ineffective assistance of counsel. Since defense counsel had no advance notice that

Squibb would be called to testify instead of Draper, the analyst who actually conducted

the DNA tests, it cannot be concluded that counsel failed in the duty to conduct a pre-trial

interview of an unnamed witness. In pre-trial discovery, defense counsel was provided

with the lab report prepared by Draper, but failed to seek any additional documents from

the lab, including Draper’s lab notes, which could have helped counsel prepare an

effective cross-examination to challenge the procedures followed by the lab.           The

potential for challenging the lab procedure was fully explored in the post-trial hearing on

the motion for a new trial, but did not result in any evidence that would have supported the

reasonable probability of a different outcome in the trial. Therefore, the failure to seek

discovery of Draper’s lab report notes was not shown to be prejudicial.

       {¶ 56} Hartman also claims that defense counsel’s failure to review the sexual

assault evidence kit caused surprise during the trial -- that the kit contained untested

samples of fingernail scrapings and DNA from the victim’s mouth. However, Hartman has

not established how this additional discovery would have helped his defense. Additional

DNA testing was not necessary to establish that it was Hartman who participated in the

sexual encounter with M.W., which Hartman admitted when he first gave a statement to

police, and never thereafter disputed. Hartman has not shown that additional testing

would assist in his defense that M.W. consented to the sexual encounter. We conclude

that Hartman has not established that he was prejudiced by his counsel’s failure to pursue

additional discovery from the rape kit.

       {¶ 57} We also conclude that Hartman has not shown prejudice by his counsel’s
                                                                                          -38-


failure to obtain a copy of the video recorded interrogations with the detective from the

Oakwood Police Department. Defense counsel was present with Hartman at the time of

the interviews, which should have adequately prepared counsel for making strategic plans

to cross-examine the detective, and to prepare Hartman for potential cross-examination

during his trial testimony. Hartman has not established how discovery of the video

recordings would have led to a different outcome at trial.

       {¶ 58} Hartman’s Fourth through Ninth Assignments of Error are overruled.



                       VI. Cumulative Effect of Counsel’s Errors

       {¶ 59} For his Tenth Assignment of Error, Hartman asserts:

              THE CUMULATIVE EFFECT OF COUNSEL’S ERRORS DENIED

       HARTMAN A FAIR TRIAL AND RENDERED THEIR ASSISTANCE

       INEFFECTIVE

       {¶ 60} The Supreme Court of Ohio in State v. DeMarco, 31 Ohio St.3d 191, 509

N.E.2d 1256 (1987), paragraph two of the syllabus, recognized the doctrine of cumulative

error. Under this doctrine, a conviction will be reversed when the cumulative effect of errors

in a trial deprives a defendant of a fair trial even though each of the numerous instances

of trial court error does not individually constitute cause for reversal. Id. at 196-197. See

also State v. Jackson, 141 Ohio St.3d 171, 2014–Ohio–3707, 23 N.E.3d 1023, ¶ 258;

State v. McGail, 2d Dist. Miami No. 2014-CA-27, 2015-Ohio-5384, ¶ 81; State v. Royster,

2d Dist. Montgomery No. 25870, 2015-Ohio-3608, ¶ 56.

       {¶ 61} The Supreme Court of Ohio has recognized that multiple errors, when

aggregated, may violate a defendant's right to a fair trial, even when those errors are
                                                                                          -39-

determined to be harmless when separately considered. State v. Madrigal, 87 Ohio St.3d

378, 397, 721 N.E.2d 52 (2000). To find cumulative error, we first must find multiple errors

committed at trial, and secondly, we must conclude that a reasonable probability exists

that the outcome of the trial would have been different but for the combination of the

harmless errors. Id. at 398. See also State v. Zimpfer, 2d Dist. Montgomery No. 26062,

2014-Ohio-4401, citing State v. Thomas, 2d Dist. Clark No. 2000-CA-43, 2001 WL

1103328 (Sept. 21, 2001).

       {¶ 62} Based upon our above discussion of the alleged instances of ineffective

assistance of counsel, we conclude that the instances of arguably ineffective assistance

of counsel, even when considered cumulatively, do not give rise to a reasonable

probability of a different result, had they not occurred. Hartman’s Tenth Assignment of

Error is overruled.



                           VII. The Indictment Was Sufficient

       {¶ 63} For his Eleventh Assignment of Error, Hartman asserts:

       THE INDICTMENT IS CONSTITUTIONALLY INSUFFICIENT

       {¶ 64} For each of the three charges of rape, the indictment states:

              Mark Hartman, on or about December 31, 2013 in the County of

       Montgomery, aforesaid and the State of Ohio, did engage in sexual conduct

       with another, by purposely compelling the other person to submit by force

       or threat of force; contrary to the form of the statute (in violation of Section

       2907.02(A)(2) of the Ohio Revised Code) in such case made and provided,

       and against the peace and dignity of the State of Ohio.
                                                                                              -40-


       {¶ 65} The language of the indictment charging Hartman with three counts of Rape

does contain all the elements of the Rape statute, R.C. 2907.02(A)(2). The Supreme Court

of Ohio has held that “[a]n indictment meets constitutional requirements if it ‘first, contains

the elements of the offense charged and fairly informs a defendant of the charge against

which he must defend, and, second, enables him to plead an acquittal or conviction in bar

of future prosecutions for the same offense.’ ” State v. Childs, 88 Ohio St.3d 558, 565, 728

N.E.2d 379 (2000), quoting Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41

L.Ed.2d 590 (1974). In Childs, the Court recognized that an indictment is generally

acceptable if citing the actual language of the statute, unless it inadequately notifies the

defendant of the charge and the severity of the penalty. More recently, in State v. Jackson,

134 Ohio St.3d 184, 2012-Ohio-5561, 980 N.E.2d 1032, the Supreme Court of Ohio

confirmed this holding and found that a charge for aggravated trafficking was sufficient,

without listing the specific drug involved, as long as the indictment identified the statutory

schedule, I through V, in which the drug was listed as it made a difference to the severity

of the penalty. Id. at ¶ 21.   Hartman alleges that the indictment is insufficient because it

does not identify the name of the victim, and does not identify the nature of the sexual

conduct for each of the three charges. Hartman argues that without these specifics, the

indictment fails to adequately notify him of the charges against him, and subjects him to

the possibility of additional charges, which would impair his protection from a potential

Double Jeopardy violation.

       {¶ 66} The Supreme Court of Ohio has held that when an objection to an indictment

is not raised prior to trial as required by Crim. R. 12(C)(2), it is waived, unless it constitutes

plain error. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 26,
                                                                                          -41-

citing State v. Frazier, 73 Ohio St.3d 323, 332, 652 N.E.2d 1000 (1995). According to

Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” Plain error is not found unless it can

be concluded that but for the error, the outcome of the trial would have been different.

State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E. 2d 1043 (1996). Notice of plain error

“is to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Haney, 12th Dist. Clermont No.

CA2005-07-068, 2006-Ohio-3899, ¶ 50, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.

2d 804 (1978), paragraph three of the syllabus.

       {¶ 67} As we concluded above, since the name of the victim was undisputed,

Hartman was not harmed by the failure to identify the name of the victim in the indictment.

We have held that the indictment in a rape case with multiple counts “was sufficient

because it paralleled the language of the statutes, including every element of each charge.

Because the nature of the sexual acts had no bearing on the identity or severity of the

offenses, the specific acts were not essential elements of the crimes and therefore were

not required to be set forth in the indictment.” State v. Shaw, 2d Dist. Montgomery No.

21880, 2008-Ohio-1317, ¶ 20.

       {¶ 68} Although the failure to identify the nature of the sexual conduct, in this case,

does not affect the severity of the penalty for Rape, it does raise potential Double Jeopardy

concerns.   For example, Hartman admitted that he engaged in both oral and anal

intercourse with the victim, but the State did not attempt to prosecute either of these

potential offenses in the present case. In closing arguments, the State argued that the

first count of Rape was supported by evidence of digital penetration, and the second and
                                                                                           -42-


third counts were supported by evidence of penile penetration. Trial Transcript at 494.

However, in the entry overruling the motion for a new trial, the trial court stated that all

three counts were proven by penile penetration. Under the facts of this case, without

identifying the specific sexual conduct in the language of the indictment, the State might

consider pursuing a second prosecution for the digital penetration or the oral or anal

intercourse. As we concluded in Shaw, supra, the failure of the indictment to notify the

defendant of the nature of the sexual conduct upon which each of his convictions were

based prevents a retrial for any of the potential offenses that occurred during the same

time span covered by the indictment. Id. at ¶ 25. As addressed by the Supreme Court of

Ohio in State v. Anderson, 138 Ohio St. 3d 264, 2014-Ohio-542, 6 N.E. 3d 23, ¶ 59, the

proper time for raising a Double Jeopardy violation is after a second indictment is issued

and a motion to dismiss the indictment is decided. We cannot find that the potential for a

future Double Jeopardy problem is grounds for reversal of a conviction that does not

involve a current Double Jeopardy violation. In other words, we cannot conclude that but

for the defective indictment error, the outcome of this trial would have been different. We

conclude that failure to object to the indictment prior to trial, in accordance with Crim. Rule

12, waived this error on appeal. Consequently, Hartman’s Eleventh Assignment of Error

is overruled.



                  VIII. Admission of Evidence to Establish Demeanor

                             Was Not an Abuse of Discretion

       {¶ 69} For his Twelfth Assignment of Error, Hartman asserts:

                THE TRIAL COURT ERRED WHEN IT ADMITTED AND RELIED
                                                                                           -43-


       ON IRRELEVANT AND INADMISSIBLE DEMEANOR-AFTER-THE-FACT

       EVIDENCE

       {¶ 70} The Supreme Court of Ohio has held that the admission or exclusion of

evidence is within the sound discretion of the trial court and that, unless the trial court

clearly abused its discretion and a party was materially prejudiced as a result, reviewing

courts should be slow to interfere. State v. Byrd, 2d Dist. Montgomery No. 25842, 2014-

Ohio-2553, ¶ 26, citing State v. Hymore, 9 Ohio St. 2d 122, 224 N.E. 2d 126 (1967). A

trial court abuses its discretion when it makes a decision that is unreasonable, arbitrary,

or unconscionable. State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶

24.

       {¶ 71} The record reflects that the trial court overruled three objections to testimony

of the victim and her friend Courtney describing how M.W. changed after the alleged

rapes. No expert testimony was offered to substantiate that the sexual incident was the

direct and proximate cause of M.W.’s psychological distress after the sexual encounter.

Hartman argues that testimony regarding the alleged impact on the victim was not relevant

to the material issues in the case, and was highly prejudicial. On the record, the trial court

overruled an objection to a question directed to the victim asking “[A]fter that day how did

you change?” as follows:

       MR. CONARD: Objection, Your Honor. No foundation.

       THE COURT: Further, I do not see the relevance. What’s the relevance of

       this?

       MS. MULLINS: Your Honor, it’s to show how a tragic situation changed her

       demeanor and her personality. It goes to when someone goes through a
                                                                                          -44-


       tragic situation, they change. It goes to show that.

       THE COURT: How does make - - I’ll allow just a little bit of this. But, again,

       it seems to me that her change in demeanor, it has to be directed toward

       whether - - proving that the events she has described more probably

       happened. That’s the only reason it could be relevant; is that if those

       changes in her demeanor makes it more likely that the events that have

       been described occurred. I don’t want this for any form of sympathy.

       MS. MULLINS: No, Your Honor.

       THE COURT: All right. Go ahead.

       MS. MULLINS: [M.W.], how did your demeanor, how did your personality

       change from before this happened to after this happened?

       MR. CONARD: Your honor, I would renew my objection.

       THE COURT: And the basis?

       MR. CONARD: It would be relevance.

       THE COURT: And again, I think there is some minimal relevance to this

       under Evidence Rule 401, in that if this event did change her demeanor, her

       personality, that does make it perhaps slightly more likely that the events

       described occurred. So for that purpose and that purpose alone, I will allow

       this testimony.

Trial Transcript at 46-47.

       {¶ 72} The record also reflects that questions were asked of the victim’s friend

Courtney, about the victim’s demeanor after the incident to bolster the victim’s credibility.

Again, the trial court admitted the bolstering testimony, stating as follows:
                                                                                           -45-


       THE COURT: Again, I am going to allow it for the minimal purpose of –

       since this witness can testify to what [M.W.]’s personality was before the

       alleged incident and then after the incident. Not for any purposes of

       sympathy, but simply for purposes, under [Evid. R.] 401, of whether or not

       this change in personality makes the events more or less probable. For

       that purpose and that purpose alone.

Trial Transcript at pgs. 124-125.

       {¶ 73} We conclude that the trial court properly found that the evidence of the

victim’s demeanor was probative. While admissible, the trier of fact is free to give little

weight to the evidence. On this record, we conclude that the trial court, the trier of fact, as

evidenced by its comments, did not give undue weight, or even much weight at all, in

rendering its verdict. The alleged change in the victim’s demeanor is but one of numerous

facts that were considered by the trial judge in his conclusion that the victim was raped.

       {¶ 74} Courtney’s opinions regarding the victim’s demeanor after the sexual

encounter were rationally based on her perceptions of the victim’s conduct, and helpful to

a clear understanding of her testimony, because her conclusions were drawn from a close

personal friendship with the victim, not just from the type of common experiences used by

juries to draw reasonable inferences. The victim’s testimony about her own personality

changes was subject to cross-examination and was admissible under Evid. R. 401.

       {¶ 75} In the case before us, the trial court did not abuse its discretion by admitting

the testimony regarding a change in the victim’s demeanor. Hartman’s Twelfth Assignment

of Error is overruled.
                                                                                           -46-


               IX. Admission of Hearsay Was Not Materially Prejudicial

       {¶ 76} For his Thirteenth Assignment of Error, Hartman asserts:

              THE TRIER OF FACT’S ADMISSION AND CONSIDERATION OF

       THE OVERWHELMING AMOUNT OF HEARSAY IN THIS CASE

       REQUIRES REVERSAL

       {¶ 77} Hartman argues that the trial court improperly admitted hearsay evidence

and that the hearsay was material to the outcome because the trial court announced the

verdict in open court and in the written decision overruling the motion for a new trial, by

stating that its decision was “based on the evidence presented.” We initially note that the

“decision whether to admit or exclude evidence is within the sound discretion of the trial

court, and ‘unless the trial court clearly abused its discretion and a party was materially

prejudiced as a result, reviewing courts should be slow to interfere.’ ” Kademian v. Marger,

2014-Ohio-4408, 20 N.E.3d 1176, ¶ 41 (2d Dist.), quoting Waste Mgt. of Ohio, Inc. v. Mid-

America Tire, Inc., 113 Ohio App.3d 529, 533, 681 N.E.2d 492 (2d Dist.1996). “The trial

court has broad discretion to determine whether a declaration should be admissible as a

hearsay exception.” State v. Everson, 7th Dist. Mahoning No. 12 MA 128, 2016-Ohio-87,

¶ 27, quoting State v. Dever, 64 Ohio St.3d 401, 410, 596 N.E.2d 436 (1992).

       {¶ 78} The fact that defense counsel did not object to this hearsay testimony at the

time of trial requires us to utilize a plain error standard of review. Plain error is not

grounds for reversal, unless it is established that but for the error, the outcome of the trial

would have been different. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E. 2d 1043

(1996). “Notice of plain error ‘is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’ ” State v. Haney,
                                                                                          -47-

12th Dist. Clermont No. CA2005-07-068, 2006-Ohio-3899, ¶ 50, quoting State v. Long, 53

Ohio St.2d 91, 372 N.E. 2d 804 (1978), paragraph three of the syllabus. Presuming that

the trial court considered and relied on hearsay statements in reaching its verdict, we must

determine if the effect was materially prejudicial such that the outcome would have been

different had the hearsay been excluded.

       {¶ 79} As discussed above, the trial court did admit statements made by the victim

to the victim’s friend, Courtney, to the sexual assault nurse, and to the detective who

interviewed the victim.   As we concluded above, it was a reasonable defense strategy

not to object to this hearsay in order to establish prior inconsistent statements to attack

the credibility of the victim during cross-examination. Hartman has not produced evidence

of any other grounds for attacking the victim’s credibility that could have been raised if the

hearsay statements had not been admitted.             Without the evidence of the prior

inconsistent statements, the defense strategy to attack the victim’s credibility would have

been even more difficult, and less likely to result in an acquittal. Since we find no material

prejudice to the admission of the hearsay statements, we do not find plain error or an

abuse of discretion. Hartman’s Thirteenth Assignment of Error is overruled.



          X. Scientific Testing May Be Admitted Through the Testimony of

                      an Expert Who Did Not Conduct the Testing

       {¶ 80} For his Fourteenth Assignment of Error, Hartman asserts:

              THE    ADMISSION       OF    MARK      SQUIBB’S      TESTIMONY       IN

       VIOLATION OF CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004)

       REQUIRES REVERSAL
                                                                                          -48-


       {¶ 81} Hartman argues that the admission of scientific evidence through a witness

who did not conduct the scientific test is structural error. Convictions based on structural

errors, which involve a constitutional “defect affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself,” are subject to automatic

reversal, regardless of whether harm or prejudice is shown. Neder v. United States, 527

U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The State argues that the expert’s

testimony was not hearsay, because the DNA expert testified to his own actions in

performing a peer review of the actual lab technician’s report. The State also argues that

a confrontation clause violation, if any, was waived when the defense failed to object to

the testimony of the DNA expert at trial.     The State also argues that any error was

harmless. As discussed below, we conclude that our review of this assignment of error

must be based on whether the error was waived or constitutes plain error.

       {¶ 82} For purposes of the confrontation clause, it has been held that the contents

of a laboratory report is testimonial in nature when its conclusion is prima facie evidence

of an element of the offense. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct.

2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. 647, 663-664, 131

S.Ct. 2705, 2716, 180 L.Ed.2d 610 (2011). However, the U.S. Supreme Court has also

held that expert testimony from a forensic specialist about the findings of a DNA test that

was not performed by the witness did not violate the defendant’s right to confrontation

because the testimony was offered for the purpose of explaining the assumptions on which

the expert’s opinion relied, and were not offered for the truth of the assumptions. Williams

v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 183 L.E.2d 89 (2012). See also State v. Maxwell,

139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 42. In the case before us, Hartman
                                                                                          -49-


challenges not only the admission of the lab reports, but his inability to cross-examine the

witness who actually performed the DNA tests. The record supports that the DNA expert

who did testify was unable to fully explain the reasoning for the process used to conduct

the testing, which the witness did not conduct. “Fundamentally, the Confrontation Clause

imposes a burden on the prosecution to present its witnesses, not on the defendant to

bring those adverse witnesses into court.” Melendez-Diaz v. Massachusetts, 557 U.S. at

325. “[T]he [Confrontation] Clause does not tolerate dispensing with confrontation simply

because the court believes that questioning one witness about another's testimonial

statements provides a fair enough opportunity for cross-examination.” Bullcoming v. New

Mexico, 564 U.S. at 662.

       {¶ 83} We agree that the record establishes that during trial, defense counsel did

not object to the testimony of Squibb, the DNA expert, in place of Draper, the lab analyst

who personally conducted the testing and interacted with the persons in law enforcement

who requested the tests. We do not agree that counsel’s failure to object automatically

constitutes a waiver of his Sixth Amendment right to confrontation. We acknowledge that

the Supreme Court of Ohio in State v. Pasqualone, 121 Ohio St. 3d 186, 2009-Ohio-315,

903 N.E. 2d 270, held that confrontation clause rights, like other constitutional rights, can

be waived. Although the Court in Pasqualone was addressing the potential error of

admitting a laboratory report, without the testimony of the person who prepared the report,

the holding in Pasqualone rests entirely on a statutory provision, R.C. 2925.51, that

specifically provides that defense counsel statutorily waives the right to insist on the

testimony of the lab technician, if the procedure specified by the statute is not followed.

Inapplicable to the case before us, R.C. 2925.51 only applies to testing done on drugs,
                                                                                          -50-


not DNA samples. The statute applicable to drug testing puts the defense on notice that

they have a right and that it is waived if the procedure is not followed, which comports with

the legal concept of waiver requiring a voluntary relinquishment of a known right. In re

B.N.C., 2d Dist. Montgomery No. 25615, 2013-Ohio-4071, ¶ 49.             The U.S. Supreme

Court in Melendez-Diaz, supra, commented that state statutes, such as R.C. 2925.51, do

not run afoul of the confrontation clause when the effect of the statute is only to establish

the procedural timing of when the right must be exercised. In the case before us, the State

identified Emily Draper as the witness it intended to call to introduce the lab report and the

DNA analysis. Dkt. #40. The defense had no prior notice that it would waive the right to

cross-examine the lab technician if she did not show up for trial. However, by failing to

object at trial when the State called Squibb instead of Draper, Hartman waived all but plain

error.    “Where preserved by objection, review of Confrontation Clause claims is for

harmless error. Confrontation Clause claims not preserved by objection are reviewed for

plain error.” State v. Habo, 11th Dist. Portage No. 2012-P-0056, 2013-Ohio-2142, ¶ 35,

citing State v. Scott, 10th Dist. Franklin No. 05AP-1144, 2006-Ohio-4981, ¶ 11, fn. 4.

         {¶ 84} By claiming structural error, Hartman essentially argues that on this record,

without the testimony of the analyst, prejudice is presumed. We disagree. The purpose

of the testimony of the DNA expert was twofold; first, it proved that Hartman engaged in

sexual intercourse with M.W., because his semen was found from a vaginal swab taken

from M.W.; and secondly, that DNA testing of the bed comforter proved that there was

movement of the two bodies on the comforter, as DNA evidence was found in numerous

different spots.    Hartman testified at trial, and did not dispute that he had sexual

intercourse with M.W., so he was not prejudiced by the admission of the DNA lab report
                                                                                         -51-


or the testimony that explained the testing process. The evidence involving the comforter

was also not prejudicial, because it was not probative to any element of the charged

offenses, and may actually have supported Hartman’s defense that the encounter was

consensual, based upon a reasonable inference that M.W. was not held down or

restrained during the sexual encounter. In closing arguments, Hartman’s counsel did

suggest that the testimony of the DNA expert be given little weight because, “when swabs

were taken from [M.W.]’s mouth, they weren’t tested. So, there’s aspects of the

investigation that appear to be incomplete as well that could have helped us in this path

as we look for the truth.” Trial Transcript at 520. If Hartman’s argument is based on the

possibility of evidence that was not provided by the State, that potential error does not

constitute a confrontation-clause violation. “The state has no duty to gather exculpatory

evidence. Moreover, it is wholly speculative whether further investigation would have

uncovered potentially exculpatory evidence.” State v. Smith, 2d Dist. Montgomery No.

20247, 2005-Ohio-1374, ¶ 12, citing State v. Farris, 2d Dist. Clark No. 2003 CA 77, 2004-

Ohio-5980, ¶ 20. The defendant bears the burden to show that the evidence not produced

was materially exculpatory, or that the failure to produce the evidence was based on bad

faith, in order to demonstrate a due-process violation. State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865, ¶ 74-77. Since Hartman has not raised a due-process

argument, the issue of whether the lab should have tested the full rape kit to provide

potentially exculpatory evidence to the defense is not before us. Hartman has not

established that there is a reasonable possibility that had he been able to cross-examine

the lab analyst there would have been a great likelihood of a different outcome.

       {¶ 85} Even without the testimony of the DNA analyst, the trier-of-fact had
                                                                                             -52-


sufficient evidence to support each element of the charged offenses. Hartman has not

established that but for a confrontation-clause error, the outcome of the trial would have

been different. Accordingly, Hartman’s Fourteenth Assignment of Error is overruled.



              XI. Cumulative Effect Of Multiple Errors Not Established

       {¶ 86} For his Fifteenth Assignment of Error, Hartman asserts:

              THE CUMULATIVE EFFECT OF MULTIPLE ERRORS DENIED

       HARTMAN A FAIR TRIAL

       {¶ 87} Hartman argues that the cumulative effect of two or more errors should be

grounds for reversing his convictions, even if the errors are determined to be harmless.

The cumulative-error doctrine provides that a “conviction will be reversed where the

cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair

trial even though each of numerous instances of trial error does not individually constitute

cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E. 2d 623 (1995). “In

order to find cumulative error, we must find: (1) that multiple errors were committed at trial,

and (2) there is a reasonable probability that the outcome of the trial would have been

different but for the combination of the separately harmless errors.” State v. Goldblum, 2d

Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 58.

       {¶ 88} Although we have found some basis for a claim of ineffective assistance of

counsel, we have concluded that even when cumulated, the instances of ineffective

assistance are insufficiently prejudicial to merit reversal. Similarly, when those instances

are cumulated with the alleged deficiency in the indictment, and the alleged confrontation-

clause violation, we still conclude that these alleged errors are not sufficiently prejudicial
                                                                                           -53-


to have created a reasonable probability of a different result, had the errors not occurred.

       {¶ 89} Hartman’s Fifteenth Assignment of Error is overruled.



                                      XII. Conclusion

       {¶ 90} All of Hartman’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

                                        ..........


WELBAUM, J., concurs.

HALL, J., concurring:

       {¶ 91} I agree with the resolution of the issues reached in the lead opinion. I write

separately to express my opinion that the right to confront DNA expert Draper was waived.

Moreover, even if it was not, there is no showing that the use of the alternate test reviewer,

Squibb, had any prejudicial effect.

                                        ..........




Copies mailed to:

Mathias H. Heck
Andrew T. French
S. Adele Shank
Lawrence J. Greger
Hon. Michael Tucker
