[Cite as State v. Coogan, 2014-Ohio-4775.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                Plaintiff-Appellee,                 :

v.                                                  :                 No. 14AP-220
                                                                   (C.P.C. No. 13CR-3015)
Joseph Coogan,                                      :
                                                               (REGULAR CALENDAR)
                Defendant-Appellant.                :


                                             D E C I S I O N

                                    Rendered on October 28, 2014


                Ron O'Brien, Prosecuting Attorney, and Barbara A.
                Farnbacher, for appellee.

                Paul Giorgianni, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

         {¶ 1} Defendant-appellant, Joseph Coogan, appeals his conviction on two counts
of rape in violation of R.C. 2907.02, two counts of sexual battery in violation of R.C.
2907.03, and one count of kidnapping in violation of R.C. 2905.01. For the following
reasons, we affirm the conviction and judgment of the Franklin County Court of Common
Pleas.
         {¶ 2} Appellant presents two assignments of error for our consideration:

                1. The judgment of conviction is contrary to the manifest
                weight of the evidence.

                2. Appointed defense counsel's closing argument was so
                deficient as to deny Mr. Coogan his constitutionally
                guaranteed right to effective assistance of counsel.
No. 14AP-220                                                                            2


       {¶ 3} This case arises from an incident that occurred in the early morning hours
of May 27, 2013 after a party in which both the victim ("KC") and appellant were drinking.
The party occurred at a residence where Cierra Chapman, KC and KC's daughter were
living. In the early morning hours, KC became very intoxicated and then angry when
talking about KC's mother. The other party guests told her to go to bed and appellant
carried KC upstairs to her bedroom, with SC, the 16-year-old brother of Cierra Chapman,
showing the way. Appellant is the biological father of KC who was 19 at the time.
       {¶ 4} At trial, KC testified that once appellant had taken her to her room, he laid
her down on the bed and then he lay next to her. She does not remember SC showing
appellant where the bedroom was, nor does she remember having a cigarette with SC.
She testified that appellant lay down on the bed with her fully clothed. She said that he
removed her pants, bra, and underwear and climbed on top of her. He touched her
breasts and inserted his fingers into her vagina. He told her to be quiet and stop moving,
while he held a blanket over her mouth. KC testified that appellant had his clothes on but
his pants were pulled down.
       {¶ 5} KC said that when Cierra Chapman came into the room appellant
immediately stood up and zipped up his pants, told Cierra to watch KC and left the room.
KC then told Cierra what had happened. KC testified that she was menstruating at the
time and was wearing a tampon, which appellant took out of her. An ambulance and the
police were called and KC was taken to a hospital.
       {¶ 6} Cierra Chapman testified that both KC and appellant were drinking and
appellant carried KC up to her room after she became emotional at the end of the evening,
with her brother SC showing the way. Cierra said that after about 45 minutes to an hour,
she went upstairs to the bedroom which she shared with KC.
       {¶ 7} When Cierra walked into the bedroom, appellant jumped up from lying on
the bed and quickly covered KC with a blanket.         Appellant's pants and belt were
unbuckled. He put on his boots and fixed his belt. He asked Cierra to watch KC because
she was going to be sick and then Cierra showed him out of the bedroom with the light
from her phone.
       {¶ 8} Once appellant left, Cierra turned on the light and KC sat up and said "I
think my dad touched me." (Tr. Vol. I, 111.) Cierra uncovered the blanket and saw KC's
No. 14AP-220                                                                             3


pants and underwear were down around her ankles. Her strapless bra was around her
knees. She also had her shirt pulled up exposing her breasts. Cierra described KC as
hysterical. KC would cry, pass out, then wake up and scream leave me alone. Cierra was
able to get her mother, who was also at the party, to come to the bedroom. KC told
Cierra's mother what happened and they called the police.
       {¶ 9} SC, the 16-year-old brother of Cierra Chapman, said that he had not been
drinking at the party. He testified that both appellant and KC lay down on the bed with
their clothes on when he initially showed them KC's bedroom. SC testified that he went
back to the bedroom after about 15 minutes to check on KC. He found both appellant and
KC under a blanket. SC said that KC sat up and asked for a cigarette. All three of them
smoked a cigarette and talked for a bit. Then SC left the bedroom.
       {¶ 10} The State presented DNA evidence at trial which was collected from KC's
underwear, bra and used tampon. The expert testified that the bra and tampon string
both had some male DNA present. There was also male DNA found on vaginal and anal
swabs from KC but not enough sample was present to make a more extensive comparison.
On KC's underwear, the State's expert testified there was a significant amount of male
DNA. The expert stated the frequency of the DNA profile for the DNA found on the
underwear was one in every 3,333 unrelated male individuals and the appellant fit that
profile.
       {¶ 11} Appellant testified in his own defense and stated that after SC left the room
for a second time both he and KC fell asleep on the bed. Appellant said that KC woke up
and asked that he close the door, so he got up to close the door and realized that it was
already closed. It was at this point he said KC starting taking her clothes off. Appellant
said he told her to stop because he was still in the room. He testified he physically
grabbed her arms and her pants to prevent her from taking her clothes off, at which point
he put the blanket over her and she fell back asleep. Appellant testified he was trying to
adjust his belt to leave when Cierra Chapman came in.
       {¶ 12} Appellant's first assignment of error asserts the judgment of conviction is
contrary to the manifest weight of the evidence. A manifest weight argument requires us
to engage in a limited weighing of the evidence to determine whether there is enough
competent and credible evidence so as to permit reasonable minds to find guilt beyond a
No. 14AP-220                                                                                  4


reasonable doubt and, thereby, to support the judgment of conviction.                State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). In so doing, the court of appeals, sits as a "
'thirteenth juror' " and, after " 'reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id.
       {¶ 13} Issues of witness credibility and concerning the weight to attach to specific
testimony remain primarily within the province of the trier of fact, whose opportunity to
make those determinations is superior to that of a reviewing court. State v. DeHass, 10
Ohio St.2d 230, 231 (1967).      The question is "whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed." State v. Hancock, 108 Ohio St.3d 57, 63, quoting
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). The discretionary power to
grant a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against a conviction. Thompkins at 387.
       {¶ 14} A jury may "take note of the inconsistencies and resolve or discount them
accordingly * * * such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). "Furthermore, it is within the province of the jury to make the
credibility of witnesses. ('It is the province of the jury to determine where the truth
probably lies from conflicting statements, not only of different witnesses but by the same
witness')." State v. Dillon, 10th Dist. No. 04AP-1211, 2005-Ohio-4124, ¶ 15 (citations
omitted).
       {¶ 15} Having examined the entire record, we find that there is enough competent
and credible evidence to find guilt beyond a reasonable doubt. We note Cierra's testimony
that she saw appellant buckling his pants when she entered the room, and saw him hastily
covering KC with the blanket. The fact that Cierra found KC in such a state of undress
under the blanket and the male DNA on the tampon from KC are also compelling pieces
of evidence. We cannot say that the jury clearly lost its way and created a manifest
miscarriage of justice. The fact KC was undressed when Cierra Chapman entered the
room and appellant was securing his pants are not in dispute. The jury could well have
No. 14AP-220                                                                                5


doubted appellant's testimony that his DNA came to be found on KC's cloths and tampon
only because he was trying to keep KC dressed when she attempted to remove her own
cloths.
          {¶ 16} The first assignment of error is overruled.
          {¶ 17} The second assignment of error asserts that the closing argument of the
defense counsel was deficient and denied appellant effective assistance of counsel.
          {¶ 18} A two-step process is employed when considering allegations of ineffective
assistance of counsel:
                 First, there must be a determination as to whether there has
                 been a substantial violation of any of defense counsel's
                 essential duties to his client. Next, and analytically separate
                 from the question of whether the defendant's Sixth
                 Amendment rights were violated, there must be a
                 determination as to whether the defense was prejudiced by
                 counsel's ineffectiveness.

State v. Lytle, 48 Ohio St.2d 391, 396-97 (1976), vacated in part on other grounds,
(1978), 438 U.S. 910.
          {¶ 19} A counsel's performance "will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel's performance." State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. An error by counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment. Id. To warrant reversal,
"[t]he defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Strickland
v. Washington, 466 U.S. 668, 694 (1984).
          {¶ 20} The question is whether counsel acted outside the "wide range of
professionally competent assistance."        Id. at 690.       Appellate courts must be highly
deferential in scrutinizing counsel's performance.             "A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight[.] * * * There are countless ways to provide effective assistance in any given
case." Id. at 689.
No. 14AP-220                                                                               6


              The evidence introduced at trial, however, will be devoted to
              issues of guilt or innocence, and the resulting record in many
              cases will not disclose the facts necessary to decide either
              prong of the Strickland analysis. If the alleged error is one of
              commission, the record may reflect the action taken by
              counsel but not the reasons for it. The appellate court may
              have no way of knowing whether a seemingly unusual or
              misguided action by counsel had a sound strategic motive or
              was taken because the counsel's alternatives were even
              worse.

Massaro v. United States, 538 U.S. 500, 505 (2003).

       {¶ 21} Appellant's argument as to why the closing argument was deficient asserts
counsel failed to point out alleged inconsistencies in KC's testimony. Appellant argues
that failure to point out the inconsistencies increased the likelihood that the jury gave too
much weight to her testimony. Specifically, appellant points out that KC was initially
unsure whether an attack took place. Cierra had testified that KC had first said "I think
my dad touched me." Later KC stated she did not know whether or not appellant
penetrated her with his penis when she was questioned by an examining nurse at a
hospital. Appellant asserts defense counsel should have argued that KC was paranoid.
Appellant also states that counsel should have argued that the tampon string could have
been contaminated with male DNA from being in the trash.
       {¶ 22} Even if these bits of testimony had been emphasized in closing argument,
we have no reason to find that the outcome of the trial would have been different. For us
to find prejudicial error, appellant must show that there is a reasonable probability that,
but for counsel's errors, the result of the trial would have been different. Strickland at
694. Appellant has failed to do so.
       {¶ 23} The second assignment of error is overruled.
       {¶ 24} Having overruled both assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                             SADLER, P.J. and CONNOR, J., concur.
