[Cite as State v. Porter, 2013-Ohio-3969.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE OF OHIO                                        C.A. No.       12CA0061-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
STEVEN E. PORTER                                     COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   11CR0479

                                  DECISION AND JOURNAL ENTRY

Dated: September 16, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Steven Porter, appeals from the judgment of the Medina

County Court of Common Pleas. This Court affirms.

                                                 I

        {¶2}     On August 6, 2011, Porter, his wife, Katie, and their two children attended the

wedding of his step-brother, Josh. Also in attendance were brothers Matt and Jessie Shorter, and

C.S. Matt and Jessie are Porter’s cousins by marriage. C.S. is Matt and Jessie’s sister and was

13 years old at the time.

        {¶3}     After the wedding reception, Porter invited Josh, another step-brother, Jake, and

their wives over to his house for an after-party. Josh asked if Matt and Jessie could come along,

to which Porter had no objection. Matt and Jessie volunteered to bring the remaining keg of beer

over to Porter’s after they dropped C.S. off at home. After receiving permission from her father,

C.S. decided to go along with her brothers to Porter’s house.
                                                 2


         {¶4}   While waiting for Josh to bring the tap for the keg, Porter pulled out a bottle of

101 proof peppermint schnapps, a bottle of tequila, and three shot glasses. According to C.S.,

Porter gave her shots of the peppermint schnapps. However, none of the witnesses at trial

admitted to seeing C.S. drinking any alcohol that evening. Josh and his new wife left first,

followed by Jake and his wife. Matt, Jessie, and C.S. intended to spend the evening because

Matt and Jessie were too drunk to drive.

         {¶5}   Katie Porter testified that she went upstairs to bed around 12:00 or 12:30 a.m.

Not long after, Jessie, Matt, C.S., and Porter lay down in the living room to sleep. Matt was

sitting in a reclining chair, while the others were on the “L” shaped sectional couch. Porter was

lying on the long portion that forms the bottom of the “L,” C.S. was lying with her feet toward

Porter’s head, and Jessie was sitting at the end of the couch near C.S.’s head.

         {¶6}   Jessie testified that he woke when he heard Matt get out of the chair and go to the

bathroom to throw up. He then noticed that C.S. had slid down the couch toward Porter and was

quietly moaning. Jessie said that he picked up the blanket covering C.S. and saw that C.S. was

disrobed and that Porter’s hand was touching her bare vagina.

         {¶7}   Jessie testified that he tried to alert his brother Matt, and eventually called 911

while standing in the bathroom with Matt. He hung up the phone with the dispatcher when

Porter opened the bathroom door. Matt and Jessie then went outside, and Jessie called the police

again.

         {¶8}   Officer Matthew Heidelman of the Seville Police Department was the first officer

on scene. Officer Heidelman testified that C.S. “was passed out or sleeping” on the couch when

he entered the living room. He began asking her questions and “could tell something just wasn’t

right. Her speech was somewhat * * * slurred. She just wasn’t very coherent, [and] couldn’t
                                                 3


really make out what had happened.” Detective Kevin Ross arrived shortly thereafter and began

interviewing C.S. Detective Ross testified that C.S. was intoxicated when he spoke to her and

that she “was out of it.” Detective Ross further testified that C.S. told him that Porter had given

her alcohol.

       {¶9}    C.S. testified that Porter had given her two or three shots of peppermint schnapps

and that the last thing she remembered was sitting on the couch with Porter. She remembered

Porter had his hand on her leg and asked her if she was okay. The next thing she knew Officer

Heidelman was waking her. She testified that she did not remove her skirt, underwear or bra and

was unaware that they were off until the officer brought it to her attention.

       {¶10} Porter was indicted on two counts of gross sexual imposition (“GSI”), in violation

of R.C. 2907.05(A)(1) and R.C. 2907.05(A)(5), both felonies of the fourth degree. At trial, the

court granted Porter’s Crim.R. 29 motion and dismissed the count related to R.C. 2907.05(A)(1).

The jury found Porter guilty of the remaining GSI charge, and the court sentenced him to one

year in prison. Porter now appeals and raises three assignments of error for our review.

                                                 II

                                Assignment of Error Number One

       THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY
       VERDICT OF GUILTY OF GROSS SEXUAL IMPOSITION, PURSUANT TO
       R.C. §2907.05(A)(5), AND THAT SAID JURY VERDICT WAS AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶11} In his first assignment of error, Porter argues that the evidence is insufficient to

sustain his conviction for GSI. Additionally, Porter argues that his conviction is against the

manifest weight of the evidence.
                                                4


Sufficiency

       {¶12} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient to

support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),

quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of

adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be

viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.” Id.

       {¶13} “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955).            This Court,

therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,

2008-Ohio-3721, ¶ 4 (9th Dist.).

       {¶14} R.C. 2907.05(A)(5) provides, in relevant part, that:

       No person shall have sexual contact with another, not the spouse of the offender;
       [or] cause another, not the spouse of the offender, to have sexual contact with the
       offender * * * when * * * [t]he ability of the other person to resist or consent * *
       * is substantially impaired because of a mental or physical condition * * *, and
       the offender knows or has reasonable cause to believe that the ability to resist or
       consent of the other person * * * is substantially impaired * * *.

       {¶15} The General Assembly did not define the phrase “substantially impaired” as used

in R.C. 2907.05. See State v. Zeh, 31 Ohio St.3d 99, 103 (1987). “In the absence of clear

legislative intent to the contrary, words and phrases in a statute shall be read in context and

construed according to their plain, ordinary meaning.” (Quotations omitted.) Barton v. G.E.

Baker Constr., Inc., 9th Dist. Lorain No. 10CA009929, 2011-Ohio-5704, ¶ 10. “[S]ubstantial

impairment must be established by demonstrating a present reduction, diminution or decrease in
                                                 5


the victim’s ability, either to appraise the nature of his conduct or to control his conduct.” Zeh,

31 Ohio St.3d at 103-104.

       {¶16} Porter argues that the State failed to produce sufficient evidence to establish that

C.S. was substantially impaired by alcohol. Further, according to Porter, there is no evidence

that he knew or had reasonable cause to believe that C.S. was substantially impaired. Because

Porter limits his argument to this element, we will limit our review accordingly.

       {¶17} C.S. testified that when they arrived at Porter’s everyone started drinking. When

she asked if she could have a drink, Porter offered her shots of 101 proof peppermint schnapps.

C.S. described the curvy shot glass she used and explained that Porter instructed her to drink the

shot fast because it would “taste really bad.” She thought Porter gave her a total of two or three

shots. C.S. further testified that the last thing she remembered was sitting on the couch with

Porter and him “leaning back and touching [her] leg and asking if [she] was okay.” When she

woke she had a blanket over her and a police officer was there. C.S. explained that she still felt

drunk and was unaware that her clothes were off until the police brought it to her attention.

       {¶18} Jessie Shorter testified that when he fell asleep on the couch next to C.S., her head

was up against his leg. He was woken sometime later when Matt got up from the recliner to go

to the bathroom. At that time, Jessie noticed that C.S. had moved a couple of feet away from

him and toward Porter. Jessie heard C.S. moaning quietly, and when he raised her blanket he

noticed she was nude from the waist down and Porter’s hand was on her bare vagina. Construing

the facts in a light most favorable to the State, there is sufficient evidence that C.S. was

substantially impaired and Porter knew it.

       {¶19} However, regardless of whether C.S. had consumed enough alcohol to become

substantially impaired, the testimony of C.S. and Jessie, if believed, presents sufficient evidence
                                                  6


to establish that Porter had sexual contact with C.S. while she was sleeping. We have previously

held that “sleep is a ‘mental or physical condition’ sufficient to substantially impair a victim’s

ability to resist unwelcomed sexual contact within the meaning of [R.C.] 2907.05(A)(5).” State

v. Maynard, 9th Dist. Medina No. 07CA0116-M, 2009-Ohio-282, ¶ 22. Viewing the evidence in

a light most favorable to the State, we conclude that there is sufficient evidence to establish,

beyond a reasonable doubt, that Porter had sexual contact with C.S. while she was substantially

impaired. Porter’s first assignment of error, as it relates to insufficiency, is overruled.

Manifest Weight

       {¶20} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387; Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. “Weight of the evidence concerns ‘the

inclination of the greater amount of credible evidence, offered in a trial, to support one side of

the issue rather than the other.’” (Emphasis sic.) Thompkins at 387, quoting Black’s at 1594.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases. Otten at 340.
                                                7


           a. Porter’s Testimony

       {¶21} Porter testified that he returned home from the wedding about 9:30 or 10 p.m. He

said that he and his wife put the kids to bed and changed into more comfortable clothes before

everyone arrived. Porter maintained that he never personally gave C.S. any alcohol and did not

witness her drinking at any point that evening. He further testified that while they were sleeping

he shoved C.S.’s feet a couple of times because she was kicking him, but denied that he ever had

any sexual contact with her.

           b. Jessie’s Testimony

       {¶22} Jessie testified that he woke when Matt got out of the recliner to go to the

bathroom. Jessie noticed that C.S. had slid closer to Porter and he could hear her moaning softly.

When he lifted her blanket, he saw that C.S. was undressed from the waist down and that

Porter’s hand was on her vagina. Jessie testified that he tried to communicate with Matt by text

message, but Matt’s responses were incoherent. Jessie then went to the bathroom to talk to Matt.

Jessie explained that he did not confront Porter because Porter is much bigger and he worried

about getting hurt if the two fought. Additionally, Jessie stated that he was on probation and

feared that he could get into legal trouble if he was involved in any physical altercation.

Ultimately, Jessie decided to call 911 while in the bathroom with Matt. On the 911 tape, Jessie

can be heard whispering to the 911 operator that his cousin was sexually assaulting his sister

with his finger. He ended the call abruptly when Porter came into the bathroom to see what was

going on. Jessie told Porter that Matt was throwing up and suggested to Matt that they go

outside to smoke. Once outside Jessie called 911 again.
                                                8


            c. Officer Heidelman’s Testimony

       {¶23} Officer Matthew Heidelman of the Seville Police Department was the first officer

to arrive on scene. He testified that he noticed Matt standing in the driveway and asked him

what was going on. Matt replied that he did not know and told him to speak with Jessie, who

had walked a ways down the road. Before Officer Heidelman had a chance to speak to Jessie,

Porter came out of the house cursing and yelling for him to get off of his property. Officer

Heidelman testified that Porter approached him in “an aggressive posture” and would not calm

down. Officer Heidelman then drew his taser and ordered Porter to lie on the ground. Porter

instead walked to the cruiser and placed his hands on the hood. When Officer Heidelman

attempted to handcuff Porter he noticed that his hands were wet. When backup arrived, Porter

was handcuffed and placed in the back of a cruiser so the officers could figure out what was

going on.

       {¶24} Officer Heidelman then spoke with Jessie. He testified that Jessie appeared “very

upset, almost hysterical.” Jessie was crying and it took a couple of minutes to calm him down.

Officer Heidelman was then met by Katie Porter at the front door of the house. He asked to

speak to C.S. and Katie led him into the living room, where he noticed C.S. was either passed out

or sleeping on the couch. While speaking with C.S., Officer Heidelman noticed some women’s

clothing on the couch next to her. He testified that he “could tell something just wasn’t right.”

He explained that her speech was a little slurred and she “just wasn’t very coherent.” Detective

Ross arrived shortly thereafter and took over the interview with C.S.

            d. Detective Ross’ Testimony

       {¶25} According to Detective Ross, C.S. appeared to be intoxicated when he spoke with

her. She had no memory of going to sleep on the couch or how her clothes were removed.
                                                  9


According to Detective Ross, she told him that Porter had given her some shots of peppermint

schnapps and that she did not remember much of anything else.              Katie testified that she

overheard Detective Ross’ interview with C.S. and that C.S. repeatedly said that it was Matt and

Jessie that gave her alcohol, not Porter. Katie also testified that C.S. did not appear intoxicated

during her interview with Detective Ross.

                  i.   Underwear

       {¶26} In processing the scene, the police discovered a pair of men’s underwear under

the portion of the couch where Porter was sleeping. Porter was transported to the police station

for questioning. In the interview, Detective Ross asked Porter about the underwear under the

couch. Porter explained that he did not know how the underwear got under the couch, but that he

had sex there earlier that day with his wife and would not be surprised if more than one pair of

his underwear was found under the couch. He further explained that he was not currently

wearing underwear and that that was not uncommon.

       {¶27} According to Porter, he had removed his underwear when he changed into more

comfortable clothes after the wedding, despite knowing company was coming over. Katie Porter

also testified that Porter often goes without underwear at home. She also said that the underwear

could have fallen under the couch while she was doing laundry. Katie explained that she often

folds laundry on the couch so there are always miscellaneous articles of clothing under the

couch. Additionally, Katie testified that it is possible that the police planted the underwear there.

                 ii.   Wet Hands

       {¶28} In the interview Detective Ross also asked Porter why his hands were wet when

Officer Heidelman tried to handcuff him. Porter explained that he woke up when he heard Matt

and Jessie moving about. He went to see if everything was okay. Jessie told him everything was
                                               10


fine and that Matt was just throwing up. According to Porter, the three then walked outside so

that Jessie and Matt could smoke. Shortly thereafter, Porter came back inside, sat on the couch

for a minute, and decided to clean up the kitchen. According to Porter, he picked up a shot glass

from the kitchen’s center island, but put it right back down because it was sticky. He then went

and washed his hands. At that point, he noticed lights in his driveway and went outside. Porter

explained that he was confrontational and uncooperative at first because he did not know who

was in his driveway or why. He thought maybe Matt and Jessie had gotten into a fight.

                iii.   Shot Glasses

       {¶29} Detective Ross testified that three shot glasses, an empty bottle of 101 proof

peppermint schnapps, and a bottle of tequila were found in the laundry room on top of the dryer.

The shot glasses were dirty and smelled like peppermint schnapps. During the interview with

Porter, Detective Ross informed Porter that his version of the events did not add up because the

shot glasses were not found where he said he left them. Porter maintained that he left the dirty

shot glasses on the island in the kitchen. At trial, Katie Porter testified that she had moved the

liquor bottles and shot glasses to the laundry room after the officers arrived. She admitted that

she did not tell the police that she moved these because nobody asked. She explained that she

did not know what she was doing; she was stressed and just started cleaning. She testified that

the only cleaning she did was move dirty shot glasses to the laundry room. She did not clean the

sink full of dirty dishes or put away the carton of orange juice that had been sitting on the

counter since earlier that evening.

                iv.    Tissues

       {¶30} The police also found a couple of bloody Kleenexes under the couch near where

Porter was sleeping. Porter and Katie testified that they did not know where the Kleenex came
                                                11


from and that they did not have any in the house. The tissues were collected as evidence, but no

DNA testing was performed on them.

           e. DNA Evidence

       {¶31} Several items were submitted for DNA testing. Among the things tested were

swabs from C.S.’s underwear. Y chromosome DNA testing of C.S.’s underwear revealed a

major and minor male profile. The major profile only produced a partial profile, containing just

3 of 17 markers. The source of the minor profile was too small to test. A comparison of Porter’s

DNA to the major Y chromosome profile determined that he could not be excluded as a

contributor. However, because it was only a partial profile, statistically the profile could be

consistent with about 10% of the male population. The State did not take DNA samples from

Jessie or Matt.

       {¶32} Also submitted for DNA analysis were swabs from Porter’s hands. His right hand

revealed a minor DNA profile, but it was too small to test. No DNA was recovered from the

swab of Porter’s left hand.

           f. Social Worker’s Testimony

       {¶33} The police had C.S. transported to Akron Children’s Hospital from Porter’s house

for examination. Prior to her medical examination, Ms. Tyla Dudley, a social worker from

Akron Children’s Hospital, interviewed her.       Ms. Dudley testified that she had to wait to

interview C.S. because of her level of intoxication. When she did speak to C.S., C.S. told her

that she drank, passed out, and woke up to the police standing in front of her. Ms. Dudley

testified that C.S. told her that her brothers had put her on the couch because she was falling over

and that was one of the last things she remembered.
                                                 12


           g. C.S.’s Testimony

       {¶34} C.S. testified that Porter gave her two or three shots of peppermint schnapps and

that the effects of the alcohol hit her all of a sudden. The last thing she remembered was sitting

on the couch with Porter. His hand was on her leg and he was asking her if she was okay. C.S.

testified that she had no idea how her skirt, underwear, and bra were removed. She also stated

that she had no memory of her vagina being touched.

           h. Conclusion

       {¶35} Essentially, the jury was presented with two different versions of the events, one

from Jessie and one from Porter.        The jury was left to decide which version it believed.

“[C]redibility determinations are primarily for the trier of fact.” State v. Browning, 9th Dist.

Summit No. 26687, 2013-Ohio-2787, ¶ 18. Here, the jury chose to believe Jessie’s version of

the events over that of Porter’s. “[T]his Court will not overturn [a jury’s] verdict on a manifest

weight of the evidence challenge simply because the [jury] chose to believe certain witnesses’

testimony over the testimony of others.” Id., quoting State v. Ross, 9th Dist. Wayne No.

12CA0007, 2013-Ohio-522, ¶ 16. After a careful review of the record, we conclude that this is

not the exceptional case where the jury clearly lost its way and created such a manifest

miscarriage of justice by convicting Porter. See Otten, 33 Ohio App.3d at 340. Porter’s first

assignment of error, as it relates to the manifest weight of the evidence, is overruled.

                                Assignment of Error Number Two

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL,
       GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION.

       {¶36} In his second assignment of error, Porter argues that his trial counsel was

ineffective. Specifically, Porter argues his trial counsel was ineffective for failing to: (1) call a
                                               13


DNA expert to testify; (2) call Jessie’s father to testify; (3) plea bargain based upon Jessie’s

alleged confession to his father; (4) present extrinsic evidence of Detective Ross’ bias; and (5)

correct his witness’ testimony.

       {¶37} To prevail on a claim of ineffective assistance of counsel, a defendant must show

(1) that counsel’s performance fell below an objective standard of reasonableness, and (2) that

but for counsel’s deficient performance the result of the trial would have been different.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Accord State v. Bradley, 42 Ohio St.3d 136

(1989), paragraph three of the syllabus. This Court need not address both Strickland prongs if

the defendant has failed to prove either one. State v. Ray, 9th Dist. Summit No. 22459, 2005-

Ohio-4941, ¶ 10. In a direct appeal, we review a claim of ineffective assistance of counsel de

novo. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 53

       {¶38} Porter argues that his counsel was ineffective for failing to call his own DNA

expert to testify at trial. According to Porter, he had “engaged the services of a DNA expert” and

that expert “contradicted the findings of fact[] and conclusions of the State’s DNA expert.”

Because Porter’s argument relies on evidence outside of the record, it is more appropriate for a

petition for post-conviction relief. See State v. Malone, 9th Dist. Lorain No. 12CA010153, 2013-

Ohio-2605, ¶ 19. Based on the information contained in the record, we cannot conclude that

Porter was prejudiced by his attorney’s failure to present testimony from his DNA expert.

       {¶39} Next, Porter argues his counsel was ineffective for failing to call Jessie’s father to

testify. According to Porter, Jessie’s father was prepared to testify that Jessie confessed to him

that Porter did not have sexual contact with C.S.        Again, these arguments are based on

information dehors the record and are more appropriate for a petition for post-conviction relief.

Reviewing the record, we cannot determine what Jessie’s father would have testified to at trial.
                                                 14


As such, Porter cannot establish that his attorney was ineffective for failing to call Jessie’s father

as a witness.

       {¶40} Additionally, Porter argues that his counsel was ineffective for failing to plea

bargain based on Jessie’s confession to his father. The State argues in its brief that it did offer

Porter a plea deal. However, because the offer is not part of the record, we have nothing to

review. Further, there is no evidence in the record regarding plea bargains. Because Porter’s

argument is based on information outside of the record, it is better suited to a petition for post-

conviction relief.

       {¶41} Porter further argues that his counsel was ineffective for failing to present

extrinsic evidence of Detective Ross’ bias. During his cross examination of Detective Ross,

defense counsel asked if he remembered during the lunch recess saying “so pathetic” as he was

walking past Porter. Detective Ross replied that he did not remember saying that, and the court

removed the jury. Defense counsel explained to the court that he did not personally hear the

statement, but was informed by an observer in the courtroom. When asked if he planned to call

the observer as a witness, defense counsel replied that he would have to talk to her again and that

there may be more than one “alleged witness.” The prosecutor told the court that he was with

Detective Ross the whole time and at no point was any comment made toward Porter. The court

brought the jury back in and instructed them to disregard the defense’s question. The court

concluded that if it “were to permit examination of this topic, it would lead, perhaps, to collateral

matters which would prolong the trial and not get us where we need to be.” Neither the State nor

defense counsel objected.

       {¶42} In his brief, Porter argues that defense counsel was “give[n] an opportunity to

introduce extrinsic evidence before the jury to show [Detective Ross’] bias” and was ineffective
                                                 15


for failing to take advantage of such opportunity. However, a reading of the transcript reveals

that the court declined to permit extrinsic evidence on this issue. Porter does not argue that the

court erred in refusing to admit extrinsic evidence. Moreover, Porter’s argument does not

explain what “extrinsic evidence” should have been admitted. Presumably, Porter is arguing that

the observer(s) should have been called to testify. However, that argument necessarily relies on

what the observer(s) would have testified to. As this testimony is not a part of the record, it

cannot establish ineffective assistance and is more appropriate for a petition for post-conviction

relief.

          {¶43} Lastly, Porter argues that his counsel was ineffective for failing to correct the

testimony of Ms. Tyla Dudley, a social worker from Akron Children’s Hospital. Porter called

Ms. Dudley to testify about her interview with C.S., and she was given a copy of her report to

reference. The following exchange occurred during direct examination.

          [Defense:] Okay. Did you ask her any further questions?

          [Ms. Dudley:] Yes. I asked about her periods and she talked about being on birth
          control because that would help regulate it.

On cross-examination, Ms. Dudley re-read her report and confirmed that C.S. was not on birth

control and did not say that she was. Defense counsel addressed the issue in his closing

argument.

          You heard the social worker. I want to talk to you about that, too. I ripped [the
          report] out. I don’t remember seeing it. I had to rip off the report so she could
          take it and read through them. I didn’t have a copy. I didn’t know – I said to her
          why don’t you just read verbatim from the report, Ms. Dudley. She didn’t. I
          didn’t know what she was saying at the time. If I had my own copy, I would have
          corrected her and that was [the prosecutor’s] job. He did it. He corrected her. It
          wasn’t my purpose to mislead you. * * *

          {¶44} Porter argues that his counsel’s failure to correct Ms. Dudley’s testimony

regarding the birth control “cast doubt on [her] credibility.” However, Porter fails to explain
                                                  16


how the result of his trial would have been different if his attorney had corrected Ms. Dudley’s

testimony on direct examination. See Strickland, 466 U.S. at 687. As we have repeatedly held,

“[i]f an argument exists that can support [an] assignment of error, it is not this [C]ourt’s duty to

root it out.” Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,

1998).

         {¶45} Porter’s second assignment of error is overruled.



                                 Assignment of Error Number Three

         THE COURT SHOULD DECLARE PLAIN ERROR SUA SPONTE TO AVOID
         A MISCARRIAGE OF JUSTICE.

         {¶46} In his third assignment of error, Porter argues that the presentation of Porter’s

recorded interview in addition to Detective Ross’ testimony was cumulative and prejudicial to

Porter and amounted to plain error.

         {¶47} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” To establish plain

error:

         First, there must be an error, i.e., a deviation from the legal rule. * * * Second,
         the error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an
         error must be an “obvious” defect in the trial proceedings. * * * Third, the error
         must have affected “substantial rights[ ]” [to the extent that it] * * * affected the
         outcome of the trial.

(Alterations sic.) State v. Hardges, 9th Dist. Summit No. 24175, 2008-Ohio-5567, ¶ 9, quoting

State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “Courts are to notice plain error ‘only to prevent a

manifest miscarriage of justice.’” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16,

quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
                                                17


       {¶48} Porter argues that “the double presentation of evidence improperly and unfairly

bolster[ed] Detective Ross’s testimony when his credibility had yet to have been placed in

question.” However, Porter offers no specific argument about how Detective Ross’ testimony

was bolstered by the presentation of the taped interview. Further, Porter makes no argument that

the outcome of the trial would have been different without the presentation of the recording.

Assuming arguendo that the court erred in admitting the video, Porter has not established

prejudice. Therefore, we cannot find plain error. Porter’s third assignment of error is overruled.

                                                     III

       {¶49} Porter’s assignments of error are overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.
                                         18



                                              BETH WHITMORE
                                              FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

ROBERT C. MEEKER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
