[Cite as State v. Montgomery, 2011-Ohio-3259.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95700



                                       STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.


                             KENNETH MONTGOMERY

                                                 DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-535180

        BEFORE: Kilbane, A.J., Sweeney, J., and Jones, J.

        RELEASED AND JOURNALIZED: June 30, 2011
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Ronni Ducoff
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} Defendant-appellant,     Kenneth     Montgomery       (Montgomery),

appeals his conviction. Finding no merit to the appeal, we affirm.

       {¶ 2} In April 2010, Montgomery was charged with gross sexual

imposition, which carried a sexually violent predator specification. 1        The

matter proceeded to jury trial, at which the following evidence was adduced.




       1The sexually violent predator specification was bifurcated and dismissed by
the State at trial.
        {¶ 3} On January 16, 2010, the victim, J.M., slept over her friend’s

home.2 Her friend, J.W., lived with her grandmother and Montgomery (the

father of two of the grandmother’s children).                       J.M. and J.W. slept in the

living room with Montgomery and J.W.’s cousins. Montgomery laid on a mat

on the floor with J.W.’s cousins, while J.M. and J.W. were on the couch

watching TV. At some point, J.W. moved to the floor with Montgomery and

her cousins.

        {¶ 4} Around 3:00 a.m., everyone was asleep except for J.M. and

Montgomery.          Montgomery approached J.M. while she was lying on the

couch and rubbed and squeezed her buttock.                         He also kissed J.M. on the

cheek. Montgomery told J.M. to spread her legs and that he was going to get

on top of her.          J.M. replied, “no, I don’t want to.”                    J.M. testified that

Montgomery then went back and laid down on the mat. He told J.M. not to

tell anyone what happened. He also said, “if you let me do this, I’ll give you

a Snickers.”        After Montgomery left in the morning, J.M. told J.W. what

happened with him. J.W. told her grandmother, who called J.M.’s mother.

J.M.’s mother picked up J.M. and called the police.




        2The  victim and State’s witnesses are referred to herein by their initials in accordance with this
court’s policy regarding nondisclosure of identities in cases involving sexual violence.
      {¶ 5} At the conclusion of trial, the jury found Montgomery guilty of

gross sexual imposition. The trial court sentenced Montgomery to two years

in prison and classified him as a Tier II sex offender.

      {¶ 6} Montgomery now appeals, raising four assignments of error for

review, which we will address out of order for ease of discussion.

      ASSIGNMENT OF ERROR FOUR

      “[Montgomery’s] conviction was against the manifest
      weight of the evidence.”

      {¶ 7} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶25, the Ohio Supreme Court restated the standard of review

for a criminal manifest weight challenge as follows:

      “The criminal manifest-weight-of-the-evidence standard
      was explained in State v. Thompkins, 78 Ohio St.3d 380,
      [1997-Ohio-52] 678 N.E.2d 541. In Thompkins, the court
      distinguished between sufficiency of the evidence and
      manifest weight of the evidence, finding that these
      concepts differ both qualitatively and quantitatively. Id.
      at 386, 678 N.E.2d 541. The court held that sufficiency of
      the evidence is a test of adequacy as to whether the
      evidence is legally sufficient to support a verdict as a
      matter of law, but weight of the evidence addresses the
      evidence’s effect of inducing belief. Id. at 386-387, 678
      N.E.2d 541. In other words, a reviewing court asks whose
      evidence is more persuasive — the state’s or the
      defendant’s? We went on to hold that although there may
      be sufficient evidence to support a judgment, it could
      nevertheless be against the manifest weight of the
      evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of
      appeals reverses a judgment of a trial court on the basis
      that the verdict is against the weight of the evidence, the
      appellate court sits as a “thirteenth juror” and disagrees
       with the factfinder’s resolution of the conflicting
       testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v.
       Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d
       652.”

       {¶ 8} Moreover, an appellate court may not merely substitute its view

for that of the jury, but must find that “in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” Thompkins at

387. Accordingly, reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.”

 Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717,

720.

       {¶ 9} Montgomery argues that the jury lost its way when it convicted

him of gross sexual imposition. He contends that there was no evidence to

corroborate J.M.’s testimony.    He also attacks J.M.’s credibility, claiming

that her testimony was contradictory and confusing. Specifically, he refers

to J.M.’s testimony that she was asleep when J.W.’s relatives came home

after the incident, while J.W.’s aunt testified that J.M. was awake and J.M.’s

failure to mention that Montgomery kissed her on the cheek to the police and

social worker and her failure to tell the social worker about Montgomery

asking her to lay on top of her and spread her legs.
      {¶ 10} We note that “[a] defendant is not entitled to a reversal on

manifest weight grounds merely because inconsistent evidence was presented

at trial. The determination of weight and credibility of the evidence is for

the trier of fact. The rationale is that the trier of fact is in the best position

to take into account inconsistencies, along with the witnesses’ manner and

demeanor, and determine whether the witnesses’ testimony is credible. As

such, the trier of fact is free to believe or disbelieve all or any of the

testimony.    Consequently, although an appellate court must act as a

‘thirteenth juror’ when considering whether the manifest weight of the

evidence requires reversal, it must give great deference to the fact finder’s

determination of the witnesses’ credibility.”     (Citations omitted.)   State v.

Blackman, Cuyahoga App. No. 95168, 2011-Ohio-2262, ¶21.

      {¶ 11} Upon review, we do not find that the jury clearly lost its way in

assessing J.M.’s testimony. Rather, J.M. admitted that she did not tell the

police or social worker about the kiss.         In addition, Cleveland Police

Detective Alan Strickler (“Strickler”) testified that he learned about the kiss

from J.W. when he interviewed her at the house. Strickler further testified

that the responding officer does not conduct an exhaustive interview.

Instead, their role is to gather basic information and refer it to the

appropriate detective bureau, which explains why “the kiss” was not

described in the initial police report.
      {¶ 12} Moreover, there is no requirement, statutory or otherwise, that

J.M.’s testimony be corroborated as a condition precedent to conviction. See

State v. Davis, Cuyahoga App. No. 91324, 2011-Ohio-2387, ¶10 (where this

court found that there is no requirement that the rape and gross sexual

imposition victims’ testimony be corroborated as a condition precedent to

conviction). Here, J.M. testified Montgomery approached her while she was

lying on the couch and rubbed and squeezed her buttock over her clothing.

He also kissed her on the cheek and told J.M. to spread her legs.

Montgomery told her not to tell anyone what happened. J.M.’s testimony,

the relationship of J.M. to Montgomery’s family, and her subsequent

disclosures do not reveal any reason for J.M. to fabricate the accusations

against Montgomery.

      {¶ 13} Thus, the jury could find the testimony of the State’s witnesses

more believable and find Montgomery guilty of gross sexual imposition.

Accordingly, we cannot say that 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.” Martin at 175.

      {¶ 14} Therefore, the fourth assignment of error is overruled.

      ASSIGNMENT OF ERROR ONE

      “[Montgomery]       was    denied     effective    assistance    of
      counsel.”
        {¶ 15} In order to substantiate a claim for ineffective assistance of

counsel, Montgomery must demonstrate “(a) deficient performance (‘errors so serious

that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment’) and (b) prejudice (‘errors * * * so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable’).   Strickland v. Washington (1984), 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674.         Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373.” State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶30.

        {¶ 16} In Ohio, a properly licensed attorney is presumed competent.              Vaughn v.

Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164.          In evaluating whether a petitioner has

been denied the effective assistance of counsel, the Ohio Supreme Court held that the test is

“whether the accused, under all the circumstances, * * * had a fair trial and substantial justice

was done.” State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304, paragraph four of the

syllabus.   When making that evaluation, a court must determine “whether there has been a

substantial violation of any of defense counsel’s essential duties to his client” and “whether the

defense was prejudiced by counsel’s ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d

391, 358 N.E.2d 623; State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905.

To demonstrate that a defendant has been prejudiced, the defendant must prove “that there

exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different.” Bradley at paragraph three of the syllabus.
      {¶ 17} In the instant case, defense counsel asked Strickler during

cross-examination, to read the statement Montgomery gave to the police.

Strickler testified on the night in question that Montgomery stated that he

was asleep on the mat.        Montgomery then woke up to use the restroom.

J.M.’s feet were in his way, so he grabbed J.M. by the ankles and put her legs

on the couch. After using the restroom, he went back to sleep on the mat.

Montgomery stated that he never spoke to J.M. during the night and that he

never offered her a Snickers candy bar.

      {¶ 18} On redirect, the trial court allowed the State, over defense

counsel’s objection, to introduce Montgomery’s prior attempted robbery and

aggravated assault convictions. The State argued it could use these prior

convictions to impeach Montgomery because the admission of Montgomery’s

statement through Strickler’s testimony was hearsay. See Evid.R. 806.3

      {¶ 19} Montgomery     claims    defense    counsel     was      ineffective   for

introducing Montgomery’s written statement because it “opened the door” for

the State to bring in his prior criminal history. We disagree.

      {¶ 20} In the instant case, Montgomery was represented by highly

competent    counsel,   who    made    the   strategic     decision    to   introduce


      3Evid.R.   806(A) provides that: “[w]hen a hearsay statement, or a statement
defined in Evid.R. 801(D)(2), (c), (d), or (e), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may be supported, by
any evidence that would be admissible for those purposes if declarant had testified
as a witness.”
Montgomery’s statement without having to call Montgomery to the stand.

“This court must presume that a licensed attorney is competent and that the

challenged action is the product of sound trial strategy and falls within the

wide range of professional assistance.    Strickland at 689.    Courts must

generally refrain from second-guessing trial counsel’s strategy, even where

that strategy is questionable, and appellate counsel claims that a different

strategy would have been more effective. State v. Jalowiec, 91 Ohio St.3d

220, 237, 2001-Ohio-26, 744 N.E.2d 163.” State v. Dudley, Cuyahoga App.

No. 94972, 2011-Ohio-726, ¶7.

     {¶ 21} Defense   counsel’s strategy was to emphasize the alleged

inconsistencies in J.M.’s account as to what happened on the night in

question. In opening statement, defense counsel stated “the evidence will

show * * * that when confronted with these accusations * * * Montgomery

said, * * * ‘No, that didn’t happen’” to the police and the social worker.

Defense counsel also stated in opening that the jury will hear things such as

“the Snickers bar that never existed.” It was defense counsel’s objective to

show the jury that Montgomery was consistent with his denial when

questioned by Strickler and the social worker. While the statement led to

the disclosure of Montgomery’s prior conviction, defense counsel indicated

that there were reasons for this line of questioning. Defense counsel stated
he made the decision to ask Strickler about the statement because on direct

examination Strickler testified that Montgomery made a statement.

      {¶ 22} While the introduction of Montgomery’s criminal record may have

impaired his credibility, it cannot be said that it changed the outcome of the

trial. As discussed in the first assignment of error, the jury did not lose its

way when it convicted him of gross sexual imposition. Thus, Montgomery

failed to demonstrate the existence of any materially deficient performance by

counsel and resulting prejudice.

      {¶ 23} Accordingly, the first assignment of error is overruled.

      ASSIGNMENT OF ERROR TWO

      “The trial court erred by not properly instructing the jury
      on the [State’s] use of [Montgomery’s] criminal history.”

      {¶ 24} Montgomery argues the trial court should have instructed the

jury to consider his prior attempted robbery and aggravated assault

convictions only for the limited purpose to judge his credibility, not his

character.

      {¶ 25} However, defense counsel did not request a limiting instruction.

Thus, we review this issue for plain error under Crim.R. 52. See State v.

Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶25.          See,

also, Crim.R. 30(A). “Notice of plain error under Crim.R. 52(B) is to be taken

with the utmost caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91,

372 N.E.2d 804, paragraph three of the syllabus. In order to find plain error,

it must be determined that, but for the error, the outcome of the trial clearly

would have been otherwise. Id. at paragraph two of the syllabus. Moreover,

Montgomery bears the burden of demonstrating that a plain error affected his

substantial rights. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, ¶14.

      {¶ 26} In the instant case, Montgomery failed to demonstrate that the

trial court’s failure to sua sponte give the jury a limiting instruction affected

his substantial rights.   There is no evidence in the record supporting his

claim that the jury relied on the prior convictions when it convicted him of

gross sexual imposition.     Moreover, defense counsel chose not to seek a

limiting instruction. Rather, in closing argument defense counsel stated that

the jury “can consider [Montgomery’s] record for his ability to be truthful or

not. It’s not that, because he committed a crime, he’s likely to commit more

crime.   That’s not it at all.”   The State also advised the jury to only use

Montgomery’s criminal history to gauge his credibility.

      {¶ 27} Thus, the second assignment of error is overruled.

      ASSIGNMENT OF ERROR THREE

      “[Montgomery] was denied a fair trial in violation of [his
      constitutional rights] when the prosecutor engaged in
      misconduct during closing argument.”
      {¶ 28} The test for prosecutorial misconduct in closing argument is

“‘whether the remarks were improper and, if so, whether they prejudicially

affected substantial rights of the defendant.’” State v. Hessler, 90 Ohio St.3d

108, 125, 2000-Ohio-30, 734 N.E.2d 1237, quoting State v. Smith (1984), 14

Ohio St.3d 13, 14, 470 N.E.2d 883.

      {¶ 29} Generally, the State is given a great deal of latitude during

closing argument. State v. Bies, 74 Ohio St.3d 320, 326, 1996-Ohio-276, 658

N.E.2d 754.     Closing arguments must be viewed in their entirety to

determine whether the disputed remarks were prejudicial. State v. Mann

(1993), 93 Ohio App.3d 301, 312, 638 N.E.2d 585. “Isolated comments by a

prosecutor are not to be taken out of context and given their most damaging

meaning.”   State v. Carter, 89 Ohio St.3d 593, 603, 2000-Ohio-172, 734

N.E.2d 345; citing Donnelly v. DeChristoforo (1974), 416 U.S. 637, 94 S.Ct.

1868, 40 L.Ed.2d 431. An appellant is entitled to a new trial only when a

prosecutor asks improper questions or makes improper remarks and those

questions or remarks substantially prejudiced appellant. Smith at 15.

      {¶ 30} Montgomery argues that the prosecutor committed misconduct

when she made the following two comments during closing argument.

      “[1] Keep in mind what [Montgomery] has to gain from his
      innocent explanations of why he’s even near [J.M.], and
      keep in mind what you know about him in terms of his
      history, his prior convictions for attempted robbery and
      aggravated assault[.]”

      “[2] [The] State asks that you put yourself in [J.M.’s] shoes
      and find her account of the sequence of events to be the
      accurate one that you were given.”

      {¶ 31} First, he argues that the State asked the jury to convict him

because of his character in that he had previous convictions.       Second, he

argues the State improperly incited the juror’s emotions by asking the jurors

to put themselves in J.M.’s shoes.

      {¶ 32} A review of the transcript reveals that just before making the

first statement, the State said, “[w]hen you’re analyzing [Montgomery’s]

version [of the incident], * * * I want you to gauge his credibility as you will

all the witnesses who testify; apply the tests of credibility that you apply to

all witnesses.”

      {¶ 33} At no time did the State tell the jury that Montgomery must have

committed the instant offense because he has prior convictions. In fact, in its

final closing argument the State said:

      “You’ll recall that I asked you to look at [Montgomery’s]
      criminal history when you’re gauging credibility. You
      are to consider attempted robbery and [aggravated]
      assault in terms of his credibility. * * * He doesn’t have
      sexual offenses in his background. So no, I was never
      saying to you, because he committed that kind of offense,
      he committed this offense. That’s wrong. I told you
      before, just consider it when you’re looking at his
      statement.”
      {¶ 34} Therefore, based on the foregoing, we do not find that the State’s

first comment was prejudicial.

      {¶ 35} With regard to the second statement, defense counsel did not

object, and therefore, we review for plain error.     As previously stated, in

order to find plain error under Crim.R. 52(B), it must be determined that, but

for the error, the outcome of the trial clearly would have been otherwise.

Long at paragraph three of the syllabus.

      {¶ 36} In the instant case, the prosecutor asked the jury to put

themselves in the victim’s shoes and find her account of the events to be the

accurate one they were given. Considering the record as a whole, we cannot

conclude that the second comment constitutes plain error because we are

unconvinced that the remark contributed to Montgomery’s conviction. See

State v. Garcia, Cuyahoga App. No. 79281, 2002-Ohio-504, (where this court

found that the prosecutor’s comment asking the jury to put themselves in the

victim’s shoes did not prejudice the jury.) Moreover, Montgomery has failed

to demonstrate that the outcome of the trial would have been different had

the prosecutor not made any of the comments. Therefore, we find that these

comments did not deprive Montgomery of a fair trial nor prejudicially affect

his substantial rights.

      {¶ 37} Accordingly, the third assignment of error is overruled.

      Judgment is affirmed.
     It is ordered that appellee recover from appellant costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.




     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR
