[Cite as State v. Maloney, 2018-Ohio-316.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   C.A. CASE NO. 27269
                                                   :
 v.                                                :   T.C. NO. 2016-CR-00312
                                                   :
 LINDRELL E. MALONEY                               :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 26th day of January, 2018.

                                              ...........

HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P. O. Box 49637, Dayton, Ohio 45449
     Attorney for Defendant-Appellant

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




DONOVAN, J.
                                                                                          -2-




       {¶ 1} This matter is before the Court on the September 16, 2016 Notice of Appeal

of Lindrell E. Maloney. Maloney appeals from his judgment entry of conviction on two

counts of rape (under thirteen), in violation of R.C. 2907.02(A)(1)(b), felonies of the first

degree, and two counts of sexual battery (natural parent), in violation R.C. 2907.03(A)(5),

felonies of the third degree. The victim herein is Maloney’s biological daughter, N.S.

Maloney was sentenced to a mandatory term of 10 years to life on Count I, rape (under

thirteen); to a mandatory concurrent term of 10 years to life on Count III, rape (under

thirteen); to 60 months on Count II, sexual battery (natural parent); and to 60 months on

Count IV, sexual battery (natural parent), with Counts II and IV to be served concurrently

to each other and consecutively to Counts I and III, for a total term of 15 years to life.

Maloney was also designated a Tier III sex offender.

       {¶ 2} Maloney was indicted on March 10, 2016, and he pled not guilty on March

29, 2016. On July 8, 2016, Maloney executed a “Waiver of Jury.” On July 15, 2016,

Maloney filed “Defendant’s Motion to Dismiss,” arguing that the State failed to preserve

exculpatory evidence, namely the DNA swabs from the rape kit of the victim, N.S. The

State opposed the motion to dismiss on July 18, 2016, asserting that “[t]o date, the State

has provided all discovery to Defendant, including the outstanding * * * DNA lab results

which was [sic] emailed to the State on July 15, 2016.”           The trial court overruled

Maloney’s motion to dismiss on August 4, 2016. According to the court, “as the State

notes, the Miami Valley Regional Crime Laboratory sent the results of the rape kit analysis

to the State on July 15, 2016, and those results were made available to Defendant’s

counsel on the same day.”
                                                                                         -3-


      {¶ 3} The bench trial commenced on August 18, 2016. At the start thereof, the

following exchange occurred:

      THE COURT: * * *

              We went through, previously, withdrawal of the jury on this case.

      And that’s been filed. So the record should reflect that.

              I just want to take a moment just to reiterate that with you, Mr.

      Maloney. It was your desire and is your desire to waive a jury on this and

      try all matters to this Court, to the Bench; is that correct?

              THE DEFENDANT: Yes, sir.

              THE COURT: Okay. I just wanted to make sure of that.

              Before we begin, is [sic] there any preliminary matters the Court

      needs to address? Let’s start with the State?

              MS. CONNELLY: Yes, Your Honor. Thank you.

      About a week ago, up until about a week ago, there were no plea offers or

      negotiations between the State and the Defense.

              Last week, the State made an offer to the Defendant to plead to one

      count of rape by force which would carry a 3 to 11 mandatory sentence and

      a gross sexual imposition under 13 which would carry with it a 12 to 16

      month sentence1 which is not mandatory. We would leave the sentencing

      open to argue for the Court to decide. And that would, by virtue of that plea

      that would take away the life tail that he is looking at with the rape under 13.


1
  We note that gross sexual imposition (under 13), in violation of R.C. 2907.05(A)(4), is a
felony of the third degree, and pursuant to R.C. 2929.14(A)(3)(a), the sentencing range
is 12 to 60, not 12 to 16, months.
                                                                                       -4-


      And he rejected that offer.

             THE COURT: Mr. Thompson, did you relay that offer to your client

      and discuss it with him?

             MR. THOMPSON: Yes, I did, Your Honor. We did discuss the

      matter is some detail. And after discussing it, Mr. Maloney informed me

      that he wished to reject that offer and go forward with trial today.

             THE COURT: Very well. Is that correct, Mr. Maloney?

             THE DEFENDANT: Yes, sir.

      {¶ 4} Dr. Kent Depue was the first witness to testify.       He stated that he is a

physician employed at Dayton Children’s Hospital in the emergency department. He

stated that on October 25, 2015, he examined N.S. due a “report of possible sexual

abuse,” specifically two incidents of digital vaginal penetration. The following exchange

occurred:

             Q. * * * And so she came into the emergency department for that

      reason?

             A. That’s correct.

             Q. * * * And when she came into the emergency department and

      you were told that that was the chief complaint, what kind of exam do you

      give a patient when that is the complaint?

             A. So, typically, as far as these sort of circumstances go, our social

      workers are called immediately. They’re the ones who take the history.

      So physicians or residents or whoever, typically not even nurses, get very

      limited history, so.
                                                                                         -5-


               As far as the details of what happened in these specific

        circumstances, we leave it to them to take the history. They then come

        and report to us exactly what the history is. And then we proceed with the

        examination. I typically do a cursory examination, you know, heart, lungs,

        you know, that sort of general thing.

               And then our SANE nurses who are trained for evidence collection

        in these circumstances will take them into another room that has our setup

        for such things, get them into position, do their evidence collection and then

        have me come in and do an examination.

        {¶ 5} Depue stated that N.S.’s examination was normal, and that a normal exam

is “definitely not” determinative of whether or not sexual abuse occurred. He stated that

“[w]hen these circumstances arrive almost always there is no physical evidence of

abuse.” When asked if he would expect to see trauma following digital penetration,

Depue responded that it “would depend on how vigorous it was.” On cross examination,

Depue stated that he “cannot, by physical examination, determine whether someone has

had sex or vaginal penetration just by looking at them.” He stated that in the course of

the exam, he “found no evidence of trauma,” and that N.S. was not complaining of any

pain.

        {¶ 6} Robert Lingo testified that he is employed as a detective at the Trotwood

Police Department. He stated that on October 25, 2015, he was employed as a patrol

officer, and that he responded to a call involving N.S. on that date. He stated that he

responded to an apartment complex where N.S. resided, and that Maloney’s girlfriend,

J.S., pulled into the parking lot behind him with N.S. in the car. Lingo stated that Maloney
                                                                                           -6-


was following them in a different vehicle. According to Lingo, Maloney was eventually

placed into the back of a cruiser because he “was yelling angrily something to the effect

that you know that this is all false” while Lingo was attempting to speak to J.S. Lingo

testified that Maloney “stated that he felt that the victim was confusing incidents from an

incident several weeks prior that involved her having a shaving bump or something to that

effect, starting to bleed and that he helped her with it.”      Lingo stated that Maloney

remained in the cruiser while J.S. gathered personal items from the residence, and that

she and N.S. then went to the hospital. Lingo stated that he advised Maloney of his

rights before speaking to him in the cruiser, and that Maloney agreed to speak to him. On

cross examination, Lingo stated that J.S. reported to him that Maloney “had stuck his

thumb into [N.S.’] vagina.”

       {¶ 7} N.S. testified that she turned 13 in July of 2016, and that she is in the

seventh grade. She stated that last year she resided with Maloney and J.S., as well as

her little sister. N.S. stated that in October of 2015, she “got in trouble because a girl got

in my face. First time I got in trouble because a girl jumped in my face and called me out

my name and I smacked her out of my face.” N.S. stated that she received an in-school

suspension and that she told her father about it. The following exchange occurred:

              Q. * * * Did something else happen at school then?

              A. Yeah, I missed the bus the first time I got in trouble.

              ***

              Q. * * * Can you tell us what happened when you missed the bus?

              A. When I missed the bus, I came back in the house and I told my

       dad. And he was, he woke up and said you just wanted to stay here
                                                                                      -7-


      because my cousin, [K. W.] was here. And I said no. And then when he

      got up - - I was going in my room to change my clothes and he told me to

      come here and I told him to hold on because I was trying to put on some

      pants. And then he said you don’t tell me to hold on. And he made me

      come here. And then I sat on the couch. He put me on his legs and then

      that’s when he started putting his finger in my private part.

      {¶ 8} N.S. stated that her private part is her vagina. She stated that K.W. spent

the night with N.S. the night before and did not have to go to school, and that K.W. was

still asleep in N.S.’ bedroom when N.S. came back inside the apartment. She stated that

her father had been sleeping on the couch in the living room, and that he was angry that

she missed the bus. N.S. stated that she wanted to change her clothes because she

had been rushed, and “when I finally looked at myself, I looked ridiculous.” She stated

that when she left her room and went into the living room, she was wearing “a pink shirt

and underwear.” N.S. testified that Maloney said, “do you think the ‘S’ word is a game?

I said no. He said you just trying to miss the bus because K.W. was here. I said, no, I

didn’t.” According to N.S., “he said didn’t I tell you I was going to put my foot up your

butt. And then that’s when he started putting his thumb in my private part.” N.S. stated

that she could not say anything “because I was crying.”         N.S. stated that Maloney

stopped when K.W. came out of the bedroom and went into the bathroom. She stated

that K.W. then returned to the bedroom without entering the living room. N.S. stated that

she did not remember the date of the abuse but that it happened on a Friday in October.

      {¶ 9} The following exchange occurred:

             Q. * * * And I want to take you, then to the next day.
                                                                             -8-


      ***

      Q. All right? Saturday?

      ***

      A. Yes.

      Q. Can you tell me what happened?

      A. That Friday I got in trouble.

      ***

      Q. Now hold on. Was this the time - - well, how did you get in

trouble on Friday? What did you do?

      A. That’s the time when a girl jumped into my face and I smacked

her out of my face.

      Q. And that’s when you got the ISS.

      A. Yes.

      Q. * * * And so then on Saturday - - when did you tell your dad that

that had happened?

      A. I told him that Friday but he didn’t do anything about it.

      ***

      Q. * * * So then on Saturday, what happened?

      A. He said, it was just me and him in the house, * * * and I was

sitting on the couch like this way and I had my legs on the couch and my

head and things were facing towards the back of the couch.

      ***

      Q. * * * So you’re not sitting on it like normal?
                                                                                          -9-


              A. Yeah, I’m not sitting on it normal.

              Q. * * * So go ahead.

              A. * * * He was sitting on the floor. And then that’s when he started

       to play with me.

              Q. What do you mean by that?

              A. Like tickle me and stuff and hold me tightly. And then he was

       holding me tightly and I hate being held down, so I’m trying to move. And

       he squinched [sic] my legs, like my body together and like held me. And

       then that’s when he was like, then he was putting his fingers in my pants

       and stuff and I had on some shorts. He put his finger in my pants and he

       was shoving in my private part [sic]. And I was crying, I was screaming

       and crying.

       {¶ 10} N.S. stated that Maloney reached inside of her shorts and underwear. She

stated that he “said that just because he * * * didn’t do nothing that day didn’t mean that

he wasn’t going to do nothing. So then that’s when he kept continuously saying you think

stuff is a game.” When asked how Maloney was speaking, N.S. replied, “Like. You

think s**t is a game, you think s**t is a game.” N.S. testified that no one else was in the

apartment at the time. N.S. stated that when J.S. returned home, she told N.S. to get

ready to go to her grandmother’s house, and that when “we was in the car I told her I had

to tell her something in this; I was like I’ll tell you when we pull off * * *.” According to

N.S., “when we pulled off, I told her and she was like, ‘For real; no he didn’t.’ And I said

yes, he did. And that’s when she started crying and she called him and was like, ‘So you

put your finger in [N.S.’] private part.’ ”   When asked if she could hear Maloney’s
                                                                                          -10-


response in the phone call, N.S. responded, “[h]e was like, no, no, I didn’t. Very calmly.”

N.S. stated that J.S. then called “her Aunt Francis and the police.”

       {¶ 11} N.S. additionally testified that she remained in J.S.’ car while J.S. spoke to

the police, and that Maloney called J.S.’ phone from the police cruiser, which she

answered. N.S. testified that “he tells me to lie and tell me to tell them that he was looking

at a bump on my private part. And I told him no, I put that on my little sister, * * * what

is wrong with you.” When asked what “put that on” meant, N.S. responded, “Like I

sweared (sic) on her.”

       {¶ 12} N.S. stated that after J.S. spoke to the police, N.S. “went to get my things

from inside of the apartment that we were in. And then we called my grandma to see

where she is and she was at Kohl’s * * * in Trotwood. And we pulled * * * over there and

waited for my grandma to come outside.” She stated that J.S. spoke to her grandmother

and “we went to the hospital like I think that night or another night.” N.S. stated that

Maloney had told her not to tell anyone about the abuse. She stated that she now lives

with her grandmother.

       {¶ 13} On cross examination, N.S. testified that K.W. is the daughter of Maloney’s

brother. She stated that in the first incident, Maloney put his thumb in her vagina, and

that it was very painful. She stated that the first incident on Friday lasted “[l]ike two

minutes,” and that she did not experience bruising or bleeding.             She stated that

afterwards, “when I went into my room to put on my clothes, I woke [K.W.] up and I told

her that my dad put his finger in my private part. And she was like (demonstrating) and

put the cover back over her head and went back to sleep.” N.S. stated that her father

drove her to school after the Friday incident. She stated that after school, when she got
                                                                                     -11-


home, she asked K.W. if she had heard what she told her about the abuse in the morning,

and that K.W. indicated that she heard what N.S. told her. N.S. stated that she did not

tell any teachers at school what had happened. She stated that during that school year,

she “had Ds and Fs” and “a couple Cs and a couple As.” She stated that Maloney

punished her for her bad grades by making her stay in her room, and “I have to give up

my phone and my TV.” The following exchange occurred:

             Q. * * * You said you got into a fight at school with a girl?

             A. It wasn’t like a fight. I just, I considered it I was removing her

      out of my face.

             Q. Removing her out of your face?

             A. Yes.

             Q. * * * Was that, did you physically do that?

             A. Yes.

             ***

             Q. How did - - can you tell me a little bit about that?

             A. She jumped in my face and called me out my name which was

      the “B” word.

             Q. Okay.

             A. And I’m walking, minding my own business. So my choice was

      to smack her out of my face.

             ***

             Q. And, in fact, you received an in-school suspension for that.

             A. Yes.
                                                                                 -12-


       Q. * * * And did your father place you on punishment for that, also?

       A. No.

       Q. He never did?

       A. He didn’t do anything.

       Q. * * * Did he talk to you about it?

       A. He did not do nothing that day.

       Q. * * * Did he do anything later that month?

       A. Yes. That Saturday he, I was sitting on the couch and that’s

when he was playing with me and he was holding me up like tight - -

       Q. Uh-huh

       A. - - and I was trying to get loose. And that’s when he put his finger

in my private part.

       Q. * * * And that was - -

       A. His thumb. * * *

       Q. * * * So the first time - - and I’m kind of going off your earlier

testimony - - was on a Friday, correct?

       ***

       A. The first time was on a Friday. Later that Friday, I got in trouble

at school and got ISS. And then I told him about it. He didn’t do anything.

And then that Saturday that’s when he put his finger in my private part.

       Q. * * * That Saturday was following the Friday.

       A. Yes.

       ***
                                                                                         -13-


               Q. * * * Now when this - - so it happened twice.

               A. Yes.

               Q. * * * And the Friday, did he put his thumb inside your vagina?

               A. Yes.

               Q. * * * And the following Saturday he repeated that and put his

       thumb?

               A. Yes.

               Q. So on both times it was his thumb. Are you sure about that?

               A. Yes. I’m positive.

               Q. * * * Did you see him? Could you see him when he inserted it

       or how did you know it was his thumb and not a finger?

               A. Because if it was his finger, I would’ve felt his finger. It was his

       thumb because he was (indicating) and injected it in my private part.

       {¶ 14} N.S. stated that she was in pain at school the entire day on Friday. She

stated that her little sister was asleep when the incident occurred on Friday, and that J.S.

was at work.

       {¶ 15} On re-direct examination, N.S. stated that prior to the incidents on Friday

and Saturday, if she got into trouble her father would “make me take off all of my clothes

from like my shirt and my bra and my underwear and my pants and my socks and my

shoes. And he’ll make me bend over the couch and he’ll get the belt and he’ll whoop

me.” She testified that “[t]hat happened multiple times when I have got in trouble at

school.” N.S. stated that she did not make up the allegations of abuse because she was

being punished. She stated that K.W. is close to Maloney. N.S. stated that she and her
                                                                                        -14-


father were watching “The Young and the Restless” when the incident happened on

Saturday. When asked why she did not tell anyone at school what had happened to her

on Friday, N.S. responded that Maloney “told me not to tell anyone or he would kill me.”

      {¶ 16} Melinda Kaiser testified that she is employed at Eastway Behavioral

Healthcare as a nurse practitioner. She stated that her “role is to assess and treat mental

health problems” for her patients. Kaiser testified that she began seeing N.S. monthly

as a patient in January 2016, and N.S. “was referred by her school” due to disruptive

behavior and reported physical, emotional, and sexual abuse by her father.          Kaiser

stated that N.S. was in therapy at South Community prior to coming to Eastway

Behavioral Healthcare, and that she had been diagnosed with attention deficit disorder

and oppositional defiant disorder. Kaiser testified that she completed a psychological

assessment of N.S. and diagnosed her with attention deficit disorder, oppositional defiant

disorder, and also post-traumatic stress disorder. When asked what made her conclude

that N.S. had post-traumatic stress disorder, Kaiser responded, “Her reported history of

the abuse as well as her symptoms related to that. She had intrusive thoughts about it.

She had nightmares about it. She had flashbacks about it.” Kaiser stated that N.S.

takes medication for post-traumatic stress disorder.     Kaiser stated that N.S.’ mental

health is improving due to “medication management, the therapy, as well as a more stable

loving home environment” with her grandmother. She stated that her issues at school

have also improved.     Kaiser testified that pre-existing behavioral problems can be

exacerbated by physical or sexual abuse.

      {¶ 17} On cross-examination, Kaiser testified that N.S. was referred to her by her

school for her behavior problems, and by Children’s Services for the allegations of sexual
                                                                                        -15-


abuse. On re-direct examination, she stated that N.S. discussed “being hit by her dad and

sexually abused by her dad.” Kaiser testified that such abuse can be a cause of post-

traumatic stress disorder.

       {¶ 18} J.S. testified that she has a two-year old child with Maloney, who is her

boyfriend, and that she is expecting a second child with him. She stated that she lived

with N.S. in October 2015. J.S. stated that she contacted the police because of what

N.S. reported to her. She stated that she spoke to Maloney, and that they “didn’t have

a long conversation. I just asked him and he was sleeping and he didn’t know what I

was talking about.” J.S. testified that she was employed at Tenneco in October 2015, and

that she worked from 6:00 a.m. to 3:00 p.m. Monday through Friday. She stated that after

the police responded to her call, she took N.S. to the hospital. J.S. denied crying when

N.S. reported the abuse to her.

       {¶ 19} On cross examination, J.S. testified that Maloney denied the allegations,

and that “he thought I had made her say it because me and him got into a [sic] argument.”

She asserted that while she was talking to the police, her phone rang and N.S. answered

it. J.S. stated that N.S. advised her that Maloney put his thumb in her private part, “and

she didn’t really have a story to tell me. She just said that’s all that happened.” J.S.

stated that N.S. was not being punished at the time, and that “she was kind of always on

some sort of punishment but he never was never really stuck out his punishment [sic].”

J.S. stated that she did not have concerns for the safety of her own daughter, who was

one at the time, and that she “just kept thinking how could [N.S.] say this.”

       {¶ 20} J.S. testified that she had custody of N.S. for a while, because N.S.’ “mama

was giving up custody of all her children then and Lindrell couldn’t get it at that moment.
                                                                                          -16-


So it went through a list of people and * * * I had to go to court to get it, Juvenile Court.”

She stated that Maloney eventually got custody. J.S. stated that she met N.S. “when

she was around 8. She was always hyper.” J.S. stated that N.S. “started getting in

trouble often in school. She started lying.” According to J.S., once while Maloney was

incarcerated, N.S. told N.S.’ grandmother “that I was whooping on the kid when I didn’t

never whoop her then.” She stated that at a later time, “when [Maloney] was about to

get out of jail, maybe a month before or close to couple weeks, [N.S.] had told them that

I was feeding her old food,” which J.S. asserted was untrue. J.S. stated that N.S. “got

into a fight once. And she would often get suspended off the bus and she wouldn’t tell

us when she got suspended. She would act like she missed the bus.” J.S. stated that

she took N.S. to the hospital on the night of October 25, 2015, and that she was not

complaining of any pain.

       {¶ 21} Detective Natalie Watson testified that she is employed by the City of

Trotwood Police Department, that she was assigned to N.S.’ case on October 26, 2015,

and that she “contacted CARE House to set up a forensic interview.” Watson talked to

Maloney and he advised her “that his daughter is known to lie when she’s off her

medication,” and that N.S. “was on punishment and wanted to get off of punishment.”

Watson stated that she asked Maloney about his initial explanation about the shaving

bump, and that Maloney stated that J.S. told N.S. “that she needed to start shaving her

pubic hair. He was not okay with that because she was 12 years old but he said that she

had came to him. She had a bump on her vagina that was bleeding and she had came

to him, showed him and he cleaned it with some alcohol.” Watson testified that she

confirmed that N.S. received an in-school suspension on the Friday that she was initially
                                                                                      -17-


abused.

      {¶ 22} On cross examination, Watson indicated that she set up an appointment to

meet with Maloney, and that she met him at the Trotwood Police Department conference

room for an interview that lasted 45 minutes.          Watson stated that at the time she

interviewed Maloney, he was free to leave at any time, he was not under arrest, and he

completed the entire interview without leaving. She stated that she met with him again

in the Montgomery County Jail to obtain a DNA swab from him, which she submitted to

“BCI.” The following exchange occurred:

             Q. * * * Do you know if that ever came back?

             A. Yes.

             Q. * * * Do you know the results of that?

             A. I don’t know them verbatim but.

             ***

             BY MR. THOMPSON:

             Detective, I’m handing you what’s been marked for purposes of

      identification as Defendant’s Exhibit A.

             MS. CONNELLY: Your Honor, can we approach?

             THE COURT: Yes.

                    (At sidebar)

             MS. CONNELLY: It’s a lab report by Amy Dallaire and she’s not

      Amy Dallaire. She’s not able to testify to it.

             THE COURT: What’s the purpose of showing her the report?

             MR. THOMPSON: She testified about taking the DNA on October
                                                                                         -18-


       15th. So I was going to show her that to confirm that she did take it.

              THE COURT: Well, she admitted she took it.

              ***

              MR. THOMPSON: Oh. This is the result of it though.

              THE COURT: Well, she can’t testify as the result [sic]. She doesn’t

       have the qualifications to testify to that. She testified she took it and where

       it went.

              ***

              THE COURT: So that’s about as far as you can go with that.

       {¶ 23} At the conclusion of the State’s case, defense counsel moved for an

acquittal under Crim. R. 29. The court overruled the motion.

       {¶ 24} K.W. then testified for the defense that she is 14, that Maloney is her uncle,

and that N.S. is her cousin. She stated that she has a “real close bond” with N.S. K.W.

stated that she spent the night at N.S.’ house in October 2015, and that she did not have

school the next morning. K.W. testified that N.S. got up in the morning and got ready for

school, “but she missed the bus.” According to K.W., N.S. “came back in the house.

And I was up with her sister,” who was one year old. K.W. testified that she was in the

front room with N.S.’ sister, and that N.S. told her that “she was going to find a reason to

leave.” K.W. stated that “my uncle told her to put back on her book bag and stuff and he

was taking her to school because she thought she wasn’t going because I didn’t have it.”

K.W. stated that N.S. retrieved her book bag from the back of the house, that her sister

and she followed N.S., and then they “all came to the front room.” K.W. stated that she

did not observe her uncle do anything inappropriate to N.S. According to K.W., N.S.
                                                                                       -19-


never told her that Maloney touched her inappropriately. When asked if N.S. ever came

to her while she was in bed and told her that her father touched her inappropriately, K.W.

responded, “[t]he only thing she told me was she was going to find a reason to leave.”

K.W. stated that N.S. wanted to leave “from that house” because “she was going to a

psychiatrist and she missed her mom. And she was failing so she was in trouble.” K.W.

stated that she, N.S., Maloney, and the baby sister left the house together.

      {¶ 25} On cross examination, K.W. stated that she is very close to Maloney and

that she spends a lot of nights at his home. When asked, “And you don’t want to see

him get in trouble * * *,” K.W. responded, “I’m speaking the God honest truth.” She stated

that she has spoken to her mother, father, and grandmother about the case.

      {¶ 26} The following day, at the start of the proceedings, the following exchange

occurred:

             THE COURT: * * * Is there any matters to put on the record before

      we start this morning?

             ***

             THE COURT: From the Defense?

             MR. THOMPSON: Just, Your Honor, that I did submit this Court’s

      offer to Mr. Maloney and at this time he doesn’t want to go forward with it.

             THE COURT: The record should be clear. It wasn’t any Court’s

      offer. I just wanted him to reconsider what the State had offered yesterday

      before we began. Since we didn’t have a jury, I thought that was a good

      opportunity to spend some time to do that this morning, so.

             MR. THOMPSON: Okay.
                                                                                          -20-


              THE COURT: I appreciate you talking to him. * * *

       {¶ 27} Finally, Maloney testified that he obtained custody of N.S. when he was

released from incarceration on March 11, 2014. He stated that N.S.’ biological mother

“was unstable to take care of her so I stepped in and I started taking care of her.”

Maloney stated that N.S. was six at the time. According to Maloney, N.S. is “cool for the

most part but she got troubles. She got troubles. She’d be lying. You know, she’d play

both sides, she manipulative to get what she want.” Maloney stated that he disciplined

N.S. by taking “her stuff that she needed,” and that he also spanked her. He stated that

he was no longer spanking N.S. in October 2015 because he “felt like she was getting too

old to be getting spankings so I just started taking her stuff that she liked like her phone,

TV, new shoes, clothes.”       According to Maloney, N.S. was exhibiting behavioral

problems in October 2015, and she “would be acting out, lying and making up stories to

try to get out of the house. And, you know, I wasn’t really going for that so I just kept her

on punishment.”

       {¶ 28} When asked what the punishment consisted of, Maloney responded that

N.S. “couldn’t have nothing, her phone, TV, her new shoes, her new clothes. The only

thing she could do is come out the room when she needed to take a shower, when she

needed to eat, finish her homework and go to bed or go to school.” At the time, Maloney

testified, N.S. “was mad, throwing stuff, telling me she going to run away, all types of

stuff.” Maloney testified that he told N.S. that “you can go back with your mom if you

want to. And she cried, said no, that she ain’t going to get nothing. I said well then you

going to have to start behaving then or this is what the punishment is.” Maloney stated

that N.S. was specifically punished for fighting “[s]ome girl” at school. He stated that he
                                                                                          -21-


learned of the fight when the teachers called him, that he asked N.S. about it, and that

she “lied to me.” According to Maloney, N.S. was “on a thing to where on a regular

school basis * * * she’d bring a note home every day and it states her behavior, it states

what she did for that day and her homework. Because previous times, she was hiding her

homework in her locker, wasn’t bringing it home, lying to me about it like she didn’t have

no homework.” Maloney stated that N.S. “would come, lying to me about she about to

catch the bus knowing she got kicked off the bus, so [sic].”

       {¶ 29} Maloney stated that he initiated counseling for N.S. around May 2015, and

that she went every two weeks. He stated that N.S. was prescribed medication, and he

made sure she took it every morning. Maloney stated that N.S. “was unruly for real.”

He stated that he encouraged the relationship between N.S. and K.W. because he

“wanted [K.W.] to rub off on [N.S.] because [K.W.] is like in sports and her grades is getting

good and she, you know, she don’t lie; she tell the truth. * * *.”

       {¶ 30} On the Friday when N.S. missed the bus, Maloney stated that when she

returned to the apartment, K.W. was sitting on the couch in the living room putting clothes

on N.S.’ baby sister. Maloney testified that when N.S. came inside, he told her “like you

ain’t about to stay here just because [K.W.] here. I’m like, man, get your book bag back

up and we’re about to go. And I dropped her off at school.” He stated that he, N.S.,

K.W., and N.S.’ baby sister all left together in the car. Maloney testified that none of the

abuse that N.S. described occurred. Maloney stated that he has six daughters, aged

“[t]wenty, 16, 16, 13, 7 and 2 and about to have another girl.” He stated that he has

never been accused of sexual abuse by his other daughters.

       {¶ 31} On cross examination, Maloney stated that he obtained custody of N.S.
                                                                                       -22-


“because something happened to her before. * * * Somebody had tried to touch her before

and I took custody of her because her mama wasn’t doing nothing about it.” According

to Maloney, N.S. made up the allegations against him “to go back to her mama.”

      {¶ 32} Before closing arguments, the parties stipulated to the authenticity of a

video of N.S.’ CARE House interview, and the court viewed the video in open court. The

video was admitted as Joint Exhibit I.

      {¶ 33} After closing arguments, the court took a recess to deliberate.         After

reconvening, the court indicated as follows:

              The record should reflect that the parties are present with the

      Defendant.

              Normally, the Court would just read the verdicts but I think some

      explanation would be in order here. I’m not going to go through all the

      explanations but I will hit some highlights.

              First of all, I’m going to say that defense counsel in the closing

      argument was very accurate in his first statement that he made that

      someone is lying. I think that’s very clear in this case. And the Court is

      the trier of fact in this case. And the Court must determine who is lying. I

      must determine the credibility of the witnesses and apply those tests of

      truthfulness.

              I’ve heard testimony. I’ve watched the demeanor of the witnesses.

      I’ve reviewed the reasons for the things they said or their motivation

      involved, their motivation for not telling the truth and any biases they may

      have.
                                                                                -23-


       In judging the credibility, I also looked to see if testimony could be

corroborated.    I found there was corroboration of the victim, [N.S.], in

several respects. The Court finds that her in-court testimony, first of all,

and her video testimony that was offered by the defense and made a joint

exhibit submitted to this Court to be consistent.

       Defense in this case argued that the motivation of the victim was to

get out of punishment and go live with her mother. The Court does not find

this to be supported by the evidence in this case.

       Now, it is true that the victim did not immediately tell anyone right

away that this offense had happened but the Court finds that this is not

unusual in these type of cases.

       However, it should be noted that when the victim, she testified that

she felt safe when [J.S.] picked her up and as they were driving away from

the Defendant, she told her of this incident.

       Now it’s obvious that [J.S.] has a relationship with the Defendant and

is motivated to protect him and I can understand that. But at the time she

picked up the victim, it was obvious that she believed the victim enough to

immediately call the police and take her, too, to be examined at Children’s

Hospital and believed her enough that she had her own daughter examined

at the hospital, as well.

       Now, although the physical exam did not reveal any trauma, Dr.

Depue did testify that just because something is inserted in the vagina does

not mean that there would be trauma.
                                                                                             -24-


             There’s no dispute that the victim in this case had behavioral

      problems. No one disputes that. No one disputes the fact that she was in

      counseling with diagnosis of PTSD until after this incident which is some

      corroboration that something happened. Along with the PTSD were the

      flashbacks and the nightmares as testified by her current or recent

      counselor.

      {¶ 34} The court then indicated it found Maloney guilty of each count, and further

found that N.S. was under the age of 13. When asked if he had anything to say, Maloney

then advised the court as follows:

             The doctor that was used for the prosecution on behalf of the State

      to see if there was penetration and now couldn’t tell whether it happened or

      not. But I already stated that there was no penetration, tearing or bruising

      on my paperwork.

             I would like to resubmit that paperwork that I received from the same

      doctor that you used to, that you used against me clearing me of

      penetration, tearing and bruising which, to wit, you used to convict me.

      This (indiscernible) behavior leads me to believe this whole court

      proceeding is a railroad case that you, the judge, prosecutor and this lack

      of knew what would happen. [sic]

             The person who was representing me did not tell me about the ten

      or the five-year deal that was offered to me in court till after found guilty [sic].

      I feel like you went off a [sic] opinion instead of the facts due to the fact that

      you refused true statement on DNA which is used in every rape case these
                                                                                           -25-


       days but for some reason not mines (sic) when it could clear my name of

       any of these charges.

                 I would like to show that I have the evidence that clears me of any

       rape, any sexual crime ever.         This is the DNA evidence.       The doctor

       statements, no penetration, none of that. I got all of the evidence that

       suggested I did nothing wrong. They even had a search warrant from my

       DNA that I’d like to show. Twice they came and got my DNA and then you-

       all tell me I can’t use my DNA to clear my name when I’m clearly innocent

       of all these charges that’s held against me.

                 I feel like I was ill-ly (sic) represented. He didn’t tell me about the

       five year deal or the ten year deal that was offered to me and I feel like I

       should’ve knew about that instead of proceeding through the Court, you

       know what I mean, the Court stipulations.

                 But I do have the DNA evidence that excludes me from any rape,

       any sexual battery, any indication of rape that my so-called lawyer was

       supposed to submit that clear my name from any rape or any wrongdoing

       in this case.

       {¶ 35} Defendant asserts two assignments of error herein. His first assigned error

is as follows:

                 THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

       SUSTAIN MALONEY’S CONVICTIONS AND MALONEY’S CONVICTIONS

       ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 36} According to Maloney, while “a rape victim’s testimony, if believed, may be
                                                                                        -26-


adequate to meet the State’s burden of production of trial, in this case, we must ask

ourselves: What are we to believe? The victim in this case gave inconsistent versions

of what happened, on what day, and how it happened.” According to Maloney, N.S.’

testimony in the video of her CARE House interview and her trial testimony are

inconsistent. According to Maloney, “N.S. has accused her Father of raping her and she

cannot even explain how it happened. She initially told her step-mother that he used his

finger.    She told the hospital that he used his finger.   She told the [CARE] House

interviewer that he used his finger. She adamantly told the trial court that he used his

thumb.” Maloney asserts that N.S. told the CARE House interviewer that K.W. entered

the living room in the course of the abuse, but that she told the trial court that K.W. did

not enter the living room. Maloney argues that N.S. told the CARE House interviewer

that when the abuse occurred on Saturday, J.S. was at work, and she testified in court

that J.S. and her baby sister were at her step-grandmother’s home on Saturday.

Maloney argues that while N.S. testified that she went to the hospital Saturday night, the

evidence at trial shows that she was examined on Sunday. Maloney asserts that N.S.

“cannot even explain what she was wearing” when the abuse occurred. He asserts that

while N.S. told the CARE House interviewer that she told J.S. about the abuse on

Saturday, she told the CARE House interviewer that she told J.S. the following Sunday.

          {¶ 37} Maloney argues that “N.S. lies to get what she wants.” He notes that

K.W.’s testimony conflicts with that of N.S. Maloney argues that N.S. wanted to leave

her father’s home and get out of her punishment. He notes that J.S. “was not concerned

about their child’s safety.”   According to Maloney, “the evidence shows that [N.S.’]

Father has been nothing more than a caring and loving Father and a disciplinarian when
                                                                                        -27-


it came to N.S.’s bad behavior.” He directs our attention to his and J.S.’s testimony

regarding N.S.’ propensity to lie.    Maloney notes that “the school referred N.S. to

Eastway for her issues with anger, aggression, oppositional defiance [dis]order, being

argumentative and impulsive.”      He notes that N.S.’ post-traumatic stress disorder

diagnosis “was made solely on N.S.’s self-reporting.” He argues that the “evidence in

this case points more to a manipulative, troubled child making up a story to get out of the

house, than her Father raping her.” Maloney asserts that N.S.’ “testimony is not sufficient

to sustain a conviction for rape and sexual battery against her Father,”

      {¶ 38} The State responds that N.S.’ CARE House interview and her testimony at

trial “were consistent. N.S. was consistent with respect to the identity of the offender,

her relationship to the offender, and the impermissible sexual acts that occurred when

she was 12 years old.” The State asserts that the definition of “finger” includes the

thumb.

      {¶ 39} As this Court has previously noted:

             “A sufficiency of the evidence argument disputes whether the State

      has presented adequate evidence on each element of the offense to allow

      the case to go to the jury or sustain the verdict as a matter of law.” State

      v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing

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

      reviewing whether the State has presented sufficient evidence to support a

      conviction, “the relevant inquiry is whether any rational finder of fact, after

      viewing the evidence in the light most favorable to the State, could have

      found the essential elements of the crime proven beyond a reasonable
                                                                                -28-

doubt.” State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997),

citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). A guilty verdict will not be disturbed on appeal unless, “reasonable

minds could not reach the conclusion reached by the trier-of-fact.” Id.

       ***

       * * * To reverse a judgment as being against the manifest weight of

the evidence, an appellate court must determine that “the jury clearly lost

its way and created * * * a manifest miscarriage of justice.”       State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). * * * “It is

well established that the trier of fact may credit some, part, or none of the

testimony of a witness.” State v. Pheanis, 2d Dist. Montgomery No. 26560,

2015-Ohio-5015, ¶ 29, citing State v. Butt, 2d Dist. Montgomery No. 22774,

2009-Ohio-6814, ¶ 19; State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964).

       “The credibility of the witnesses and the weight to be given to their

testimony are matters for the trier of facts to resolve.” State v. Hammad,

2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v.

DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “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).           “[T]he appellate court may not
                                                                                           -29-


       substitute its judgment for that of the trier-of-fact on the issue of 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). * * *

State v. Wilson, 2d Dist. Montgomery No. 27001, 2016-Ohio-7329, ¶ 6, 10-11.

       {¶ 40} R.C. 2907.02(A)(1)(b) proscribes rape and provides: “No person shall

engage in sexual conduct with another who is not the spouse of the offender * * * when *

* * [t]he other person is less than thirteen years of age, whether or not the offender knows

the age of the other person.” R.C. 2907.03(A)(5) proscribes sexual battery and provides:

“No person shall engage in sexual conduct with another, not the spouse of the offender,

when * * * [t]he offender is the other person’s natural or adoptive parent * * *.”

       {¶ 41} We initially note that we have viewed N.S.’ CARE House interview, Joint

Exhibit I. Therein, N.S. stated that Maloney is her father and that he is 35 years old.

N.S. stated that in the first incident of abuse, after she missed her school bus, Maloney

kept saying that “I think things are a game.” She stated that he placed his finger “in my

hole of my private part.” N.S. stated that she was “screaming, crying,” and when K.W.

woke up, Defendant acted like he was yelling at N.S. “or just whooped me or something,

which he didn’t.” She stated that K.W. went into the bathroom and he “kept continuing

to put his finger in my private part.” She stated that “when he got done,” she went into

the bedroom where K.W. had gone and told K.W. that Maloney “put his finger in my private

part.” She stated that her little sister was also home, who was one year old. N.S. stated

that Maloney took her to school, and that she did not tell anyone because he told her not

to do so. She stated that “it was hurting all day” and she “had my legs crossed.” When
                                                                                         -30-


asked about the details of the first incident, N.S. stated that Maloney stopped the abuse

when K.W. entered the living room, and that he began it again when she went into the

bathroom. She stated that she was trying to put her pants on when Maloney called her

into the living room. She stated that she then had on only underwear and a pink shirt

with a jean jacket. She stated that Maloney’s other hand was on her back, “pushing me

up” in the course of the abuse. She stated that K.W. went straight to the restroom, and

that Maloney “put his finger back in.”

       {¶ 42} N.S. stated that prior to the second incident, she got in trouble in school

after she hit a girl and received an in-school suspension. She stated that a “few days

went by” and on the weekend Maloney was “acting like he was all fun and games,” and

then he “put his finger in my private part.” She stated that he said, “You see how I can

be all nice and then switch up on you.” She stated that no one else was home at the

time. N.S. stated that when J.S. came home on Sunday, she disclosed the abuse to her.

N.S. stated that Friday was the first time and Saturday was the last time that Maloney

abused her. She stated that prior to the second incident, she and Maloney were watching

“The Young and the Restless” when the abuse began, and that “we both like so into” the

television show. She stated that Maloney then “held me down,” and she stated that she

hates to be held down. N.S. stated that Maloney kept “kept pushing it in,” and asking

her, “does it hurt, does it hurt?” She stated that she kept saying yes, and that he told her

to walk around the house. N.S. stated that her little sister was at daycare and J.S. was

at work at the time. She stated that J.S. began to cry when she told her about the abuse,

and that she called Maloney and asked him if N.S. was telling the truth. N.S. stated that

Maloney denied abusing her, and that he sounded very calm. She stated that Maloney
                                                                                         -31-


has “a really bad anger problem,” and that he is “not no calm person.” N.S. stated that

J.S. said “it had to be true” because of Maloney’s calm response. She stated that K.W.

put the bed covers over her head when she told her about the first incident.

       {¶ 43} N.S. further stated that Maloney would “whoop” her by making her take off

all of her clothes, spread her legs and bend over the couch, and that J.S. told him to stop

the practice because “that’s not how you whoop a girl.” She stated that “it happened

every year.” N.S. stated that her “private” is her vagina. N.S. stated that she did not have

to touch Maloney in the course of the abuse. N.S. stated that she was across the street

in J.S.’ car when the police arrived. She stated that she and her little sister were both

examined at the hospital because J.S. “didn’t know if [Maloney] would have touched” her

sister. N.S. stated that Maloney called J.S.’ cell phone from the police cruiser and that

she answered the call while she was in the car. She stated that Maloney said, “you better

lie.” N.S. said that she responded, “I put it on my sister,” and “I’m not gonna lie over

something this serious.” She stated that she told him, “I’m not about to sit here and lie

for you” and hung up on him.

       {¶ 44} Regarding Maloney’s assertion that N.S.’ testimony was unreliable, we

disagree. The inconsistencies, such as whether Maloney abused N.S. with his thumb or

his finger, or exactly when the abuse occurred, or the whereabouts of J.S. during the

second incident of abuse, or the inconsistencies between N.S.’ version of events and

K.W.’s testimony, do not render N.S.’ consistent version of events unreliable. As the

State asserts, N.S.’ CARE House interview and her trial testimony were consistent in

alleging that Maloney, N.S.’ father, on two occasions, sexually abused N.S. in her home,

by means of digital penetration, once after she missed the school bus and returned to the
                                                                                           -32-


apartment, where her cousin and baby sister were present, attempted to change her

clothes, and went into the living room in a shirt and underwear at Maloney’s insistence

after she told him to “hold on,” and once while she and her father were alone in the

apartment while she was on the couch, after he held her down. Her interview and

testimony were further consistent regarding Maloney’s use of corporal punishment and

other discipline.

       {¶ 45} N.S.’ testimony was corroborated in large part by the testimony of the other

witnesses, as the trial court determined. Melinda Kaiser testified that N.S. was referred

to her for reported physical, emotional, and sexual abuse at the hands of her father. J.S.’

testimony established that N.S. reported the abuse to her. J.S. clearly believed N.S.’

allegations as noted by the trial court. J.S. confronted Maloney, reported the allegations

to the police, and took N.S. to the hospital. N.S. stated in her CARE House interview

that J.S. had N.S.’ little sister examined at the hospital as well. J.S. testified consistently

with N.S. that N.S. answered J.S.’ cell phone in the car while J.S. spoke to the police.

J.S. stated that N.S. “didn’t really have a story to tell me,” and told her “that’s all that

happened,” and N.S. did not accuse Maloney of further sexual abuse beyond the digital

penetration. Detective Watson confirmed N.S.’ report that she received an in-school

suspension on the Friday that she was initially abused after missing the bus. While K.W.

adamantly testified that N.S. was motivated by a desire to leave Maloney’s residence,

she further testified that she spoke to her mother, father and grandmother about this

matter, all of whom have an interest in protecting Maloney.

       {¶ 46} Finally, the court had the opportunity to hear all of the witness testimony

and view the CARE House interview, and the court credited N.S.’ testimony and found
                                                                                          -33-


that it was corroborated in “several respects.” We defer to the trial court’s credibility

assessment.     Accordingly, we conclude that, viewing the evidence in a light most

favorable to the State, a rational finder of fact could have found the essential elements of

rape and sexual battery proven beyond a reasonable doubt, and that the finder of fact did

not lose its way and create a manifest injustice. In other words, Maloney’s convictions

are supported by sufficient evidence and not against the manifest weight of the evidence.

For the foregoing reasons, Maloney’s first assignment of error is overruled.

       {¶ 47} Maloney’s second assignment of error is as follows:

              MALONEY WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE

       PROCESS          THROUGH          CONSTITUTIONALLY              INEFFECTIVE

       ASSISTANCE OF COUNSEL.

       {¶ 48} According to Maloney, defense counsel “was ineffective for failing to

engage in reasonable investigation and preparation.”           He specifically argues that

defense counsel failed to subpoena school and daycare records “to indicate N.S.’s time

of late arrival at school or the baby’s arrival at daycare,” since the “records may have

given the trial court a time line to assist as to whether the alleged acts could have occurred

within that amount of time.”       Maloney further asserts that defense counsel “was

ineffective for failure to communicate a plea offer.” He argues that in addition to the plea

offer placed in the record by the prosecutor, “a second plea offer was extended prior to

the second day of trial that was not communicated to Maloney by his trial counsel.”

Maloney asserts that “[t]his second offer was an off the record offer for a prison term of

five (5) years. The original plea offer did not contain an agreement as to sentencing.”

Maloney asserts that “at the end of the trial, on the record, Maloney even told the Judge
                                                                                        -34-


that his attorney did not tell him about the ten OR five-year deal that was offered to him

until after he was found guilty.”

       {¶ 49} Maloney asserts that defense counsel was further ineffective “when he

improperly advised Maloney to waive a jury.” According to Maloney, “on July 8, 2016, at

the pre-trial conference, a jury waiver was signed by Maloney and the Judge did discuss

the effect of a jury waiver on the record.” He asserts that “it was clear that Maloney was

visibly upset with the amount of time since his arrest and the need for a continuance

because the DNA evidence was still outstanding and the Doctor was unavailable to

testify.” Maloney directs our attention to: “CD: July 8, 2016 Pre-Trial Conference and

Jury Waiver,” which is not part of the record before us. Maloney asserts that “trial

counsel advised Maloney to waive a jury because the Judge would go strictly off the

evidence. Because Maloney was anxious to have his day in court and thinking that trial

counsel would present his evidence, he waived a jury on advice of counsel.” Maloney

argues that it “is very clear from this record that counsel’s advice was bad, especially in

light of the evidence NOT presented by him. Thus, Maloney’s waiver was not knowingly,

intelligently or voluntarily given.”

       {¶ 50} Maloney argues defense counsel “was ineffective for failure to subpoena

expert testimony concerning DNA analysis and results.” He asserts that a “rape kit was

performed, and [N.S.’] clothing would have been collected,” and that Detective Watson

obtained a sample of Maloney’s DNA, but that the “DNA results were not a part of the

evidence at trial.” Maloney argues that at the pre-trial conference on July 8, 2016, the

DNA results “were still outstanding. * * * The case was continued for counsel to be

afforded an opportunity to review the results prior to trial. * * * However, no DNA
                                                                                         -35-


comparison results were admitted at trial because the lab professional was not available

to testify and the Doctor who performed the rape kit was not available to testify.” Maloney

asserts that he “complained to the trial court on the record that he felt like he was poorly

represented.” Finally, Maloney asserts that defense counsel “was ineffective for failure to

file a motion to suppress his statements to the police.”

       {¶ 51} The State responds that “Maloney cannot demonstrate that these alleged

errors would have resulted in the outcome of the proceedings being any different, and,

therefore, his second assignment of error fails.” Regarding the alleged failure to

investigate, the State responds that “even if the school/daycare records indicated that

neither N.S. nor the baby were late on the day of the offense, this does not negate the

ability of Maloney to have committed the offense.” Regarding the plea offer, the State

asserts that not “only does the record not establish that an offer was made to Maloney,

but the record also does not establish that there was a reasonable probability that he

would have accepted the plea even if it had been offered to him.”

       {¶ 52} Regarding the jury waiver, the State asserts that “Maloney does not contend

that he did not understand the proceedings or indicate how his decision was involuntary,”

and any “argument that Maloney would have been found not guilty after a jury trial is

merely speculative and cannot constitute ineffective assistance of counsel.” Regarding

defense counsel’s alleged failure to subpoena expert testimony concerning DNA analysis

and results, the State argues that in “criminal cases, DNA is not always found,” and

“even if Maloney’s DNA was not found in the rape kit, this does not amount to a situation

in which the outcome of the trial would have been different had a DNA expert testified at

trial.” The State asserts that “[w]ithout having a proffer of the documentation as part of
                                                                                          -36-


the record to consider, this claim should more appropriately be raised in a petition for

post-conviction relief and, accordingly, be overruled.” Finally, regarding Maloney’s

assertion that defense counsel was ineffective for failing to file a motion to suppress, the

State responds that “[n]othing in the record demonstrates that Maloney was coerced into

making any statements or that he did not knowingly, intelligently, and voluntarily agree to

speak with police.” According to the State, Maloney cannot demonstrate prejudice.

       {¶ 53} As this Court has previously noted:

              To prevail on an ineffective-assistance of counsel claim, a defendant

       must show deficient performance and resulting prejudice. Strickland v.

       Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       To show deficiency, a defendant must show that trial counsel’s

       representation fell below an objective standard of reasonableness.          Id.

       Prejudice exists and a reversal is warranted only where a defendant shows

       a reasonable probability that but for counsel’s deficient performance the

       result of the proceeding would have been different. State v. Bradley, 42

       Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).

State v. Ward, 2d Dist. Montgomery No. 26773, 2016-Ohio-5354, ¶ 9.

       {¶ 54} “A debatable decision involving trial tactics generally does not constitute a

deprivation of effective counsel. State v. Phillips (1995), 74 Ohio St.3d 72, 656 N.E.2d

643, 1995-Ohio-171.” State v. Russell, 2d Dist. Montgomery No. 21458, 2007-Ohio-137,

¶ 50. “Trial counsel is entitled to a strong presumption that his or her conduct falls within

the wide range of reasonable assistance. * * *.” State v. Woullard, 158 Ohio App.3d 31,

2004-Ohio-3395, 813 N.E.2d 964, ¶ 37 (2d Dist.).
                                                                                            -37-


       {¶ 55} Regarding defense counsel’s alleged failure to investigate and subpoena

N.S.’ school records and her little sister’s daycare records, as the Ohio Supreme Court

has noted:

              It is axiomatic that effective representation of a client carries with it a

       burden to investigate. “ * *     [C]ounsel has a duty to make reasonable

       investigations or to make a reasonable decision that makes particular

       investigations unnecessary.       In any ineffectiveness case, a particular

       decision not to investigate must be directly assessed for reasonableness in

       all the circumstances, applying a heavy measure of deference to counsel’s

       judgments.” Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066. See,

       also, Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373 (1989).

       {¶ 56} We conclude that there is nothing in the record to indicate that the school

and day care records may have been exculpatory, thereby necessitating their

investigation; Maloney merely speculates that the records “may have given the trial court

a time line to assist as to whether the alleged acts could have occurred within that amount

of time.” N.S. testified that the abuse that occurred on Friday lasted only a couple of

minutes, and that Maloney then drove her to school. N.S., Maloney and K.W. testified

that Maloney wanted N.S. to immediately leave the home and not stay there with K.W.

Even if the records demonstrated that N.S. arrived on time on Friday, this does not

preclude a finding that Maloney had sufficient time to commit the offense. We have no

basis to conclude that the records would have altered the outcome of the trial.

Accordingly, we find that ineffective assistance in this regard is not established.
                                                                                          -38-


       {¶ 57} Regarding defense counsel’s alleged failure to communicate a second

plea offer, the record does not support Maloney’s argument of ineffective assistance.      At

the start of trial, the prosecutor advised the court of the one offer it extended to Maloney,

namely a plea to one count of rape by force, with a mandatory sentence of three to 11

years, along with a plea to gross sexual imposition (under 13), with a non-mandatory

sentence of “12 to [60]” months, thereby avoiding a potential life sentence. Defense

counsel confirmed to the court that he relayed the offer to Maloney and discussed it with

him “in some detail,” and Maloney confirmed that he rejected the offer. On the second

day of trial, defense counsel indicated that he again submitted the plea offer to Maloney,

and that Maloney again rejected the offer. The court indicated that it “wanted [Maloney]

to reconsider what the State had offered yesterday [on the record] before we began,” and

that the court appreciated that defense counsel again spoke to Maloney about the offer.

Not until after he was found guilty did Maloney make a vague reference to “the ten or the

five-year deal that was offered to me in court.” We have no basis to conclude that any

additional offer was presented to defense counsel, or that Maloney would have accepted

the offer, since he consistently maintained his innocence. For the foregoing reasons, we

conclude that Maloney fails to establish his counsel’s deficient performance regarding the

alleged plea offer.

       {¶ 58} Regarding Maloney’s argument that his counsel’s performance was

deficient in advising him to waive a jury at the July 8, 2016 pre-trial conference, as noted

above, a record of the pre-trial conference is not before us. “App.R. 9 requires an

appellant to supply the court with a transcript of prior proceedings necessary for

disposition of any question on appeal.” State v. Kreuzer, 2d Dist. Montgomery No. 98-
                                                                                           -39-


CA-100, 1999 WL 959206, * 5 (Aug. 6, 1999). Absent a transcript of the proceedings,

we “must presume regularity in the proceedings before the trial court.” Id.

       {¶ 59} We further note that R.C. 2945.05 provides: “In all criminal cases pending

in courts of record in this state, the defendant may waive a trial by jury and be tried by the

court without a jury.” Maloney’s waiver is part of the record before us. It provides: “I

fully understand that under the laws of this state, I have a constitutional right to a trial by

jury. I hereby voluntarily waive and relinquish my right to a trial by jury, and agree to be

tried by a Judge.” It was signed by Maloney on July 8, 2016 and filed on July 14, 2016.

As the Supreme Court of Ohio has indicated:

              A jury waiver must be voluntary, knowing, and intelligent. State v.

       Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 45. * * * A

       written jury waiver is “presumptively voluntary, knowing, and intelligent.”

       State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927,

       ¶ 37. Only a “plain showing that the defendant’s waiver was not freely and

       intelligently made” will rebut that presumption. Id., citing Adams v. United

       States ex rel. McCann, 137 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268

       (1942).

State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 22.

       {¶ 60} Maloney acknowledges that the trial judge “did discuss the effect of a jury

waiver on the record.” The court further confirmed, at the start of trial, that “[w]e went

through, previously, withdrawal of the jury on this case.” The court specifically confirmed

with Maloney that it “was your desire and is your desire to waive a jury on this and try all

matters to this Court,” and Maloney replied, “Yes, sir.” Again, we conclude that Maloney
                                                                                         -40-


fails to demonstrate deficient performance and resulting prejudice based upon his jury

waiver.

       {¶ 61} Regarding Maloney’s assertion that defense counsel was ineffective for

failing to subpoena expert DNA testimony to his prejudice, we conclude that this argument

fails for a couple of reasons. We initially note that just as the absence of physical trauma

is not determinative of whether sexual abuse occurred, an absence of DNA evidence

linking a defendant to a victim of sexual abuse is also not dispositive; “there is no

requirement that testimonial evidence of sexual abuse must be corroborated by physical

or other evidence.” State v. Barnes, 2d Dist. Montgomery No. 25517, 2014-Ohio-47, ¶ 31

(holding that while the only evidence of sexual abuse was the victim’s testimony, “the fact

that there was no DNA evidence of Barnes’ sexual contact with H.S. does not render his

conviction against the manifest weight of the evidence”), citing State v. Kaufman, 187

Ohio App.3d 50, 2010-Ohio-1536, 931 N.E.2d 143, ¶ 71 (7th Dist.). Even if we were to

conclude that defense counsel’s performance was deficient for failing to subpoena expert

testimony concerning DNA analysis of N.S.’ rape kit, on this record we cannot conclude

that the outcome of the trial would have been otherwise had counsel done so.

       {¶ 62} Finally, regarding Maloney’s argument that defense counsel was ineffective

for failing to file a motion to suppress his statements, we again disagree. “A defendant’s

statement to police is voluntary absent evidence that his will was overborne and his

capacity for self-determination was critically impaired due to coercive police conduct.

Coloradao v. Spring (1987), 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954; State v.

Otte, 74 Ohio St.3d 555, 562, 1996-Ohio-108.” State v. Buk-Shul, 2d Dist. Montgomery

No. 23603, 2010-Ohio-3902, ¶ 9. Detective Lingo testified that he read Maloney his rights
                                                                                          -41-


in the cruiser before speaking to him, that Maloney agreed to speak to him, and no

evidence was offered that he admitted to the allegations against him. Detective Watson

stated that Maloney was free to leave her interview with him at any time, and that he

completed the interview. As the State asserts, there is no evidence that Maloney’s

statements to police were involuntary due to coercive police conduct or subject to

suppression.    Further, the adduced statements were exculpatory, not inculpatory.

Accordingly, we find no deficiency in defense counsel’s failure to file a motion to suppress,

a matter of trial strategy, and that Maloney has failed to establish that the outcome of his

trial would have been otherwise if counsel had filed the suppression motion.

       {¶ 63} For the foregoing reasons, Maloney’s second assignment of error is

overruled, and the judgment of the trial court is affirmed.

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

WELBAUM, P.J. and HALL, J., concur.




Copies mailed to:

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Hon. Dennis J. Adkins
