[Cite as State v. Howton, 2017-Ohio-4349.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,
                                                         CASE NO. 1-16-35
       PLAINTIFF-APPELLEE,

      v.

BROOKS D. HOWTON,                                        OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR 2015 0300

                                     Judgment Affirmed

                             Date of Decision: June 19, 2017



APPEARANCES:

        Allen Vender for Appellant

        Terri L. Kohlrieser for Appellee
Case No. 1-16-35


WILLAMOWKSI, J.

       {¶1} Defendant-appellant Brooks D. Howton (“Howton”) appeals the

judgment of the Allen County Court of Common Pleas, alleging (1) that the trial

court erred in finding that the offenses of rape and kidnapping in this case were

not allied offenses subject to merger, (2) that the trial court erred in allowing the

State to call rebuttal witnesses who were not disclosed before trial, and (3) that he

received ineffective assistance of counsel at trial. For the reasons set forth below,

the judgment of the lower court is affirmed.

                           Facts and Procedural History

       {¶2} On August 7, 2015, AD woke up at 7:28 a.m. to the sound of Howton

knocking on her bedroom window. Doc. 144 at 200. Though AD lived with her

mother, Darcie Simpson (“Simpson”), AD was alone in her house on this morning

because Simpson was away at work. Id. At this time, AD and Howton were

dating and had a sexual relationship. Id. at 199. Howton occasionally stayed

overnight at Simpson’s house in AD’s room, but he did not live there. Id. at 203.

From outside the window, Howton asked AD to let him inside the house, and she

promptly unlocked her door and let him in the house. Id.

       {¶3} Once he was inside, AD began to walk towards her bedroom because

she wanted to go back to sleep. Id. at 272. She did not invite Howton to come

with her into the bedroom. Id. As she was walking, Howton began questioning

her about why she did not answer her phone when he had called her earlier. Id. at


                                         -2-
Case No. 1-16-35


273. He then questioned her about whether she was communicating with other

men and wanted to check her phone. Id. at 274. AD did not allow him to go

through her phone, left the room, entered the kitchen, and began doing dishes. Id.

at 278. Howton followed AD into the kitchen and “kept bumping into [her]” from

behind before he “bear hugged [her].” Id. at 279. At this point, AD pushed him

away from her, told him to “leave [her] alone,” and walked back into the living

room. Id. at 283-284, 287. Howton then followed AD into the living room and sat

on AD’s lap. Id. at 287. At this point, Howton grabbed AD by her wrists, pulled

her up from where she was sitting, and began pushing her through the house

towards the bedroom. Id. at 289.

      {¶4} Once they reached the bedroom, Howton pushed AD onto the bed,

began to undress her, and took off all of her clothing. Id. at 206. While he was

holding her down on the bed, he grabbed a vibrator that was in the bedroom and

forcibly thrust it into AD’s vaginal cavity, pushing so hard that AD “jumped.” Id.

at 208-209. After this, Howton asked AD to perform fellatio on him. Id. at 209-

210. When AD refused, he accused her of engaging in such activity with other

men. Id. at 210. AD then struck him with her fist in an attempt to get him off of

her. Id. at 211. In response, Howton put his arm around AD’s neck and began to

choke her. Id. AD struggled against Howton until she passed out. Id. at 212.

When she regained consciousness, Howton then picked AD up by her neck, lifted

her up, and choked her again until she lost consciousness a second time. Id. at


                                       -3-
Case No. 1-16-35


213. When AD regained consciousness this time, she was on the floor beside the

bed; her nose was bleeding; and she was out of breath. Id. She begged Howton to

let her get her inhaler from her purse, but he did not allow her to do so and began

slapping her. Id. at 213-214. AD’s nose continued to bleed, and she reached for a

tee shirt to wipe the blood from her face. Id.

       {¶5} At this point, Howton said, “I’m going to leave ‘cause I know you’re

going to call the police on me.” Id. at 302. As he was leaving, however, he

noticed that some blood had gotten on his shoes. Id. at 302-303. Howton then

ordered AD to start the washing machine to remove traces of the blood from the

bedding and his shoes. Id. at 215-216, 306. After the washing machine had been

started, Howton began apologizing to AD and asked her to come into the living

room with him. Id. at 308. Once they were in the living room, AD sat down on

the floor and said, “I don’t want you touching me. * * * I want to be by myself. I

don’t want to do anything with you.” Id. at 310. Howton then spread out a

comforter on the floor of the living room and told AD to lay down with him on the

comforter. Id. at 218, 310. When AD refused, Howton began undressing AD, put

his arm around her, and pulled her to the floor. Id. at 219. During his testimony,

Howton estimated that the time period between their struggle in the bedroom and

this interaction in the living room could have been up to an hour. Doc. 145 at 597.

During this process, AD was crying, and Howton told her to stop sobbing. Doc.




                                         -4-
Case No. 1-16-35


144 at 218-219. Howton then performed oral sex on her and then engaged in

phallic penetration of her vaginal cavity. Id. at 219-220, 313.

       {¶6} About ten minutes later, Howton fell asleep. Id. at 315. AD then sat

up, which awakened Howton. He said, “[N]o, lay back down; lay back down.”

Id. at 315. AD said, in response, “I got to pee.” Id. AD then went into the

restroom, locked the door, and climbed out of the bathroom window. Id. at 316.

She then went to a neighbor’s house and called for help. Id. at 328. When the

police arrived, AD told them that Howton was in her house. Id. at 332. The

police knocked on the front door of AD’s house, which was locked, and requested

entry, but no one answered. Doc. 143 at 151. In between 11:00 and 11:30 that

morning, Simpson, who was at work, was contacted by her sister over the phone

and told what had happened to AD. Id. at 186. Simpson drove home and gave the

police a key to the house. Id. at 189. The police were then able to gain entry into

the house, found Howton in AD’s bedroom, and arrested him without incident. Id.

at 155-156. Doc. 144 at 335.

       {¶7} On September 17, 2015, Howton was charged with one count of

aggravated burglary in violation of R.C. 2911.11(A)(1), 2911.11(B); one count of

kidnapping in violation of R.C. 2905.01(A)(4), 2905.01(C)(1); one count of

felonious assault in violation of R.C. 2903.11(A)(1), 2903.11(D)(1)(a); two counts

of rape in violation of R.C. 2907.02(A)(2), 2907.02(B); and one count of

tampering with evidence in violation of R.C. 2921.12(A)(1), 2921.12(B). Doc. 3.


                                         -5-
Case No. 1-16-35


The sixth count, which charged Howton with tampering with evidence, was later

dismissed on the motion of the prosecution. Doc. 143 at 1.

      {¶8} The trial occurred in between April 26, 2016, and May 3, 2016.

During trial, Howton chose to testify as part of the Defense’s case-in-chief. Doc.

145 at 559. In his testimony, Howton claimed that the sexual encounters between

him and AD were consensual. Id. at 576-577. He alleged that, during one of these

encounters in the bedroom, AD indicated to him that she wanted him to stop. Id.

at 583. He claimed that he, in response, stopped and, admitting that he was

“lightweight intoxicated,” began to taunt her mildly. Id. at 583-584. He then

testified that AD hit him in the face but admitted that he choked her as retaliation

before pushing her onto the bed and smacking her several times. Id. at 588.

      {¶9} In reference to this altercation, the following exchange took place

between Howton’s defense counsel and Howton at trial.

      Q. Okay. Did everything stop as far as any sort of her trying to
      come at you or anything? Did that all stop?

      A. After her nose started bleeding she sat on the bed. The bed
      had a couple of blood drops on it, which is her bed, closer to the
      south most part of the house.

      Q. Okay.

      A. Okay. She sat on the bed. She cried a little bit. I talked to
      her to let her know that I was tired of her putting her hands on
      me and stuff. She stayed in there for a little bit. Like I said, I
      told her I was about to leave because I felt like she made me, she
      forced this on herself.



                                        -6-
Case No. 1-16-35


      Q. Okay.

      A. I felt like she made me get out of my character and, you
      know, put my hands on her after she put her hands on me first.

(Emphasis added.) Id. at 593-594. Howton testified on direct examination that he

apologized to AD. He described this conversation at trial, saying,

      A. But I was also explaining to her that over and over and over
      we had had this type of situation.

      Q. Okay.

      A. Which ultimately I’m the one always getting hit. I’m always
      getting—I’m the one always getting smacked. I’m the one
      always getting punched. I mean—so this—it wasn’t—I don’t
      think it was avoidable, but I started letting her know, like, you
      know, ‘I’m sorry for doing that, but I told you that you needed
      to stop.’

      Q. Now, why do you think—why do you think it should have
      been avoidable? Do you mean on your part?

      A. Yea, it should have been avoidable on my part because, like
      my family said, man, you know, I complained about this the
      whole time. I should have done left.

      Q. Should you have had more self-control even though you were
      getting hit?

      A. Yea, I should have had more self-control because I’m a man
      and, you know, I don’t feel like it’s right for a man to hit a
      woman. But—

      Q. Is that why you were apologizing?

      A. Yes, sir.




                                        -7-
Case No. 1-16-35


(Emphasis added.) Id. at 596-597. Howton then alleged that they had consensual

“make-up sex” in the living room after his apology. Id. at 598. Howton’s defense

counsel then began questioning Howton about the subsequent police investigation.

       Q. Okay. Well, when you were talking to Detective Neidemire,
       again, you were asking about this rape/burglary thing?

       A. Yes, sir.

       Q. Did you keep telling him that you didn’t rape anybody?

       A. I always told him that I didn’t. I ain’t never been known to be
       no person like that.

(Emphasis added.) Id. at 610.

       {¶10} After these exchanges between Howton and his defense counsel on

direct examination on April 28, 2016, the State stated the following on the record:

       [I]n light of the defendant talking about character and things of
       that nature, his own character, the State is intending to
       introduce some things which pursuant to 404(B) we need to put
       Mr. Chamberlain on notice of. But, like I said, there’s a lot of
       things in the works. I’ve got people out investigating a couple of
       things right now as we speak. The first thing tomorrow
       morning, or even tonight, I could possibly e-mail Mr.
       Chamberlain to give him more precise information as to what
       I’m talking about.

Id. at 617. After conducting further investigation that evening, the prosecutor

emailed defense counsel the names of two witnesses that the State intended to call

for the purpose of rebutting Howton’s statements about these offenses being

inconsistent with his good character. Id. at 620-622, 625.




                                        -8-
Case No. 1-16-35


      {¶11} While the State had the name of one of these witnesses—SS—for

two or three weeks prior to trial, the prosecutor informed the court that she, based

upon her experience, did not anticipate that Howton would, even if he chose to

testify, make statements that would make his character an issue. Id. at 622. SS’s

name had been disclosed to defense counsel orally, but SS’s name was not in the

list of witnesses that the State planned on calling to testify. Id. at 637. The

prosecutor only became aware of the other witness—AH—during the course of

the trial. Id. at 652-653. Doc. 105. On April 29, 2016, the court determined that,

on direct examination, Howton had ‘opened the door’ to character evidence being

presented on rebuttal and found that the prosecutor had not committed a Crim.R.

16 violation in failing to disclose the names of SS and AH prior to trial. Id. at

657-658. Further, the trial court also granted defense counsel’s request for a

continuance, giving Howton’s counsel the weekend to prepare for the rebuttal

testimony of SS and AH. Id. at 647-648. On May 2, 2016, the State called SS and

AH as rebuttal witnesses. Doc. 146 at 704, 713.

      {¶12} On May 3, 2016, the jury found Howton guilty of one count of

aggravated burglary, one count of kidnapping, one count of felonious assault, and

one count of rape. Doc. 114. The jurors could not come to an agreement on the

fourth count charged in the indictment, which was the first of the two counts of

rape. Doc. 147 at 881. Thus, the jurors could not come to an agreement as to

whether Howton committed the offense of rape in the bedroom as alleged by the


                                        -9-
Case No. 1-16-35


State in the fourth count of the indictment but found that Howton was guilty of

committing the offense of rape in the living room as alleged by the State in the

fifth count of the indictment. Doc. 112. Doc. 89. The trial judge declared a

mistrial only as to the fourth count charged in the indictment. Doc. 147 at 882.

On June 13, 2016, the trial judge sentenced Howton and found that none of the

offenses in which Howton was convicted were subject to merger. Doc. 126 at 22-

23. Howton filed notice of appeal on July 8, 2016. Doc. 130. On appeal, he

raises the following three assignments of error.

                            First Assignment of Error

       The trial court erred in sentencing Howton, when it determined
       that rape and kidnapping were not allied offenses.

                           Second Assignment of Error

       The trial court abused its discretion when it permitted the State
       to call rebuttal witnesses that it did not disclose before trial but
       it reasonably anticipated, and allowed the state to impermissibly
       present evidence of other acts by the defendant through those
       rebuttal witnesses.

                            Third Assignment of Error

       Howton received ineffective assistance of counsel when his
       attorney failed to request a jury instruction for aggravated
       assault.

We will consider these three assignments of error in the order in which they

appear in the appellant’s brief.




                                        -10-
Case No. 1-16-35


                            First Assignment of Error

      {¶13} Howton argues that the offense of kidnapping was incidental to the

offense of rape in this case because his “conduct restraining [AD was] for the

purpose of engaging in sexual activity * * *.” Appellant’s Brief, 8. He argues that

these two crimes were allied offenses of similar import that should have been

merged at sentencing because the offense of kidnapping was committed with the

same conduct as the rape, resulted in the same type of harm to the victim, and was

undertaken with the same animus. For these reasons, he requests that this court

reverse his convictions and remand this case for resentencing.

                                  Legal Standard

      {¶14} R.C. 2941.25 codifies certain protections of the Double Jeopardy

Clauses of the United States Constitution and the Ohio Constitution by prohibiting

a defendant from being convicted multiple times for the same conduct. State v.

Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 28, citing State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 27. Under R.C.

2941.25,

      (A) Where the same conduct by defendant can be construed to
      constitute two or more allied offenses of similar import, the
      indictment or information may contain counts for all such
      offenses, but the defendant may be convicted of only one.

      (B) Where the defendant's conduct constitutes two or more
      offenses of dissimilar import, or where his conduct results in two
      or more offenses of the same or similar kind committed
      separately or with a separate animus as to each, the indictment


                                       -11-
Case No. 1-16-35


       or information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

R.C. 2941.25(A), (B).

       [I]f a defendant is charged with allied offenses—which are
       multiple crimes committed with the same conduct—the ‘trial
       court is required to merge [these offenses] at sentencing.’ To
       determine ‘whether two offenses are * * * subject to merger
       under R.C. 2941.25, the conduct of the accused must be
       considered.’

(Citations omitted.) State v. Brentlinger, 3d Dist. Allen No. 1-16-23, 2017-Ohio-

2588, ¶ 27.

       {¶15} However, multiple convictions are permitted “if we answer

affirmatively to just one of the following three questions: (1) Were the offenses

dissimilar in import or significance? (2) Were they committed separate[ly]? And

(3) Were they committed with a separate animus or motivation.” State v. Potts, 3d

Dist. Hancock No. 5-16-03, 2016-Ohio-5555, ¶ 96, quoting State v. Bailey, 1st

Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 76. The question of whether

offenses are allied offenses of similar import subject to merger is reviewed under a

de novo standard. State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶

36.

                                  Legal Analysis

       {¶16} In this case, the crimes of rape and kidnapping were not allied

offenses of similar import because these crimes were committed separately.

Howton was at AD’s home from 7:28 a.m. until in between 11:00 and 11:30 a.m.


                                       -12-
Case No. 1-16-35


Doc. 144 at 186, 200. In this time period, AD testified that Howton raped her

twice at two different times and in two different rooms. The first alleged rape

occurred in AD’s bedroom. Howton pushed AD from the living room to the

bedroom, held her down, spread her legs apart forcibly, and choked her until she

passed out. Though the jurors did not find him guilty of committing the crime of

rape in the bedroom—as alleged by the prosecution—the jury did find Howton

guilty of the offense kidnapping for these actions. The kidnapping offense, which

was the third count in the indictment, arose from Howton’s actions in the bedroom

not his actions in the living room. Doc. 89. Specifically, the third count in the

indictment charged him with kidnapping for choking AD. Id.

       {¶17} The offense of kidnapping for which Howton was convicted was a

violation of R.C. 2905.01(A)(4), which reads, in pertinent part, as follows:

       (A) No person, by force, threat, or deception * * * shall remove
       another from the place where the other person is found or
       restrain the liberty of the other purpose, for any of the following
       purposes:

       ***

       (4) To engage in sexual activity * * * with the victim against the
       victim’s will;

R.C. 2905.01(A)(4). For the defendant to be found guilty under this provision, the

jury does not have to find that the kidnapping facilitated a nonconsensual sexual

encounter. Rather, this statute only requires that the jury find that the restraint or

removal was performed with the intention of facilitating a nonconsensual sexual


                                        -13-
Case No. 1-16-35


encounter. The jury determined that Howton had such an intent and convicted him

of kidnapping accordingly. Thus, the offense of kidnapping was completed in the

bedroom. Howton was not convicted of the rape that was alleged to have occurred

contemporaneously with this kidnapping offense.

      {¶18} The conviction for rape that Howton received arose from conduct

that occurred some time after this first alleged rape. After Howton released AD

from his grip and she regained consciousness, he was preparing to leave the house

when he realized his shoes had blood on them. Doc. 144 at 302. He decided to

stay until AD had run his shoes through the washing machine. Id. at 215-216,

302, 306. Doc. 145 at 590. By this time, AD and Howton had moved from the

bedroom and into the living room. Id. at 597. According to Howton’s testimony,

he felt bad, at this point, about his behavior towards AD, talked with AD for a

while, apologized for his actions, and asked for forgiveness. Id. At trial, AD

testified that Howton proceeded to rape her a second time in the living room. Doc.

144 at 219-220. Howton testified that up to an hour had passed by between the

incident in the bedroom and the sexual encounter that occurred in the living room.

Doc. 145 at 597.

      {¶19} Based on these facts, it is clear that the offenses of kidnapping and

rape were committed separately. First, Howton admitted that he planned to leave

after he completed the crime of kidnapping in the bedroom, which suggests that he

had not yet formed the intent to rape her in the living room. His actions showed


                                      -14-
Case No. 1-16-35


that he seemed to believe that his activities at AD’s house had come to a

conclusion. This also suggests that the kidnapping and rape were not part of an

ongoing series of criminal activities but were each two separate episodes of

criminal activity. Second, an interlude of up to an hour occurred in between the

commission of the crime of kidnapping in the bedroom and the commission of the

crime of rape in the living room. During this time, AD and Howton talked; AD

did laundry; and Howton formed a bed with blankets on the floor in the living

room. This interval divides the kidnapping in the bedroom and the rape in the

living room into two separate series of events.

       {¶20} Third, these offenses occurred in different places in AD’s house.

The kidnapping primarily occurred in the bedroom. After Howton had completed

this action, he ceased violently restraining AD and released her from his physical

control. She then went into the living room voluntarily. It was in this room where

he later began to restrain her forcibly a second time while he committed the

offense of rape. The facts of this case show that these offenses were committed

with separate conduct at different times and in different locations. These crimes

are not, therefore, allied offenses of similar import that are subject to merger. For

these reasons, Howton’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶21} Under this assignment of error, Howton advances two arguments.

First, he argues that the trial court erred in allowing the State to call rebuttal


                                        -15-
Case No. 1-16-35


witnesses who had not been disclosed to defense counsel prior to the

commencement of the trial. He asserts that the State was aware that he was going

to testify and, therefore, was aware of the possibility that Howton could comment

on his character, which would ‘open the door’ to the admission of character

evidence on rebuttal. Thus, Howton argues the fact that these witnesses could

have been called for rebuttal was foreseeable and that the prosecutor, therefore,

had a duty under Crim.R. 16 to disclose these witnesses prior to trial. Second,

Howton here argues that the trial court also erred in allowing extrinsic evidence of

other bad acts to be presented at trial through the State’s rebuttal witnesses. On

the basis of these arguments, Howton requests that this court vacate his

convictions and order a new trial. We will address these two arguments in the

order presented in Howton’s brief.

                     Legal Standard for Undisclosed Witnesses

       {¶22} Crim.R. 16(I) reads, in its relevant part, as follows: “Each party shall

provide to opposing counsel a written witness list, including names and addresses

of any witness it intends to call in its case-in-chief, or reasonably anticipates

calling in rebuttal or surrebuttal.”    Crim.R. 16(I).    Thus, “[t]he criterion for

determining whether the state should have provided the name of a witness called

for rebuttal is whether the state reasonably should have anticipated that it was

likely to call the witness, whether during its case in chief or in rebuttal.” State v.

Mossburg, 3d Dist. Van Wert No. 15-06-10, 2007-Ohio-3343, ¶ 24, quoting State


                                        -16-
Case No. 1-16-35


v. Lorraine, 66 Ohio St.3d 414, 423, 613 N.E.2d 212 (1993), citing State v.

Howard, 56 Ohio St.2d 328, 332-333, 383 N.E.2d 912 (1978). “A prosecutor does

not have ‘a duty to provide the names of witnesses that he reasonably did not

anticipate would testify until testimony was presented by appellant which was then

properly rebutted.’” State v. Evans, 9th Dist. Lorain No. 07CA009274, 2008-

Ohio-4295, ¶ 7, quoting Lorraine at 423.

       {¶23} “The purpose of a rebuttal witness is to ‘explain, refute or disprove

new facts introduced into evidence by the adverse party * * *.’” State v. Dubose,

1st Dist. Hamilton No. C-070397, 2008-Ohio-4983, ¶ 69, quoting State v. McNeill,

83 Ohio St.3d 438, 446, 700 N.E.2d 596 (1998). “The testimony of a rebuttal

witness is only relevant to challenge the evidence introduced by the opponent, and

the scope of this testimony is limited to such evidence.” State v. Adkins, 4th Dist.

Gallia No. 03CA27, 2004-Ohio-3627, ¶ 11, citing McNeill at 446. “The admission

of rebuttal evidence rests within the sound discretion of the trial court, and an

appellate court will not disturb a ruling on its admissibility absent an abuse of

discretion.” State v. Weaver, 12th Dist. Butler No. CA2009-01-022, 2009-Ohio-

5923, ¶ 35, citing State v. Finnerty, 45 Ohio St.3d 104, 109, 543 N.E.2d 1233,

1238 (1989). “An abuse of discretion is more than an error of judgment; rather, it

implies that the trial court's decision was unreasonable, arbitrary, or capricious.”

State v. Thompson, --- N.E.3d ---, 2017-Ohio-792, ¶ 11 (3d Dist.), quoting

Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 14.


                                       -17-
Case No. 1-16-35


                                  Legal Analysis

       {¶24} After examining the record, we do not find any evidence that the

prosecutor had a duty under Crim.R. 16(I) to disclose the names of the rebuttal

witnesses because the State did not reasonably anticipate that it was likely that SS

and AH would be called to testify on rebuttal. Under Evid.R. 404(A)(1), the

evidence presented through SS and AH could not have been introduced in the

prosecution’s case-in-chief and was admissible on rebuttal only if the defendant

placed his own character into evidence during his testimony. Evid.R. 404(A)(1).

The prosecutor could not have known that SS’s testimony was admissible as

character evidence on rebuttal until after hearing Howton proclaim during the

Defense’s case-in-chief that the crimes of which he had been accused were not

consistent with his character. Finnerty at 108-109. See State v. Hicks, 6th Dist.

Lucas No. L-02-1254, 2003-Ohio-4968, ¶ 18. Crim.R. 16(I) requires the State to

disclose witnesses “it reasonably anticipates it is likely to call * * *.” (Emphasis

added.) Howard at 915. This standard does not require the State to anticipate

every conceivable scenario that may arise out of the Defense’s case-in-chief or to

disclose any witness who could possibly be called on rebuttal as a consequence of

every possible eventuality.

       {¶25} The State was also unaware of the allegations that Howton had

sexually assaulted AH until April 28, 2016, which was after the trial had already

commenced. Doc. 105. The prosecutor, therefore, could not have disclosed AH’s


                                       -18-
Case No. 1-16-35


name and address prior to trial. The duty of disclosure under Crim.R. 16(I) is

continuing, but the record shows that the prosecutor disclosed this witness to

defense counsel on the same day that the State had become aware of AH’s

allegations. The State forwarded AH’s information to defense counsel after the

prosecutor had the opportunity to investigate these allegations further. For these

reasons, we hold that the State did not act in violation of Crim.R. 16(I) when it did

not disclose the names of SS and AH prior to trial.

       {¶26} Further, the State notified the Defense of its intention to call SS and

AH as rebuttal witnesses during the first recess after the defendant brought his

character into issue, though the prosecutor was not able to disclose SS and AH’s

names until she conducted further investigation that evening. Doc. 145 at 617.

Doc. 146 at 622. In response, defense counsel requested a continuance from the

trial court. Id. at 635-636. The trial court granted a continuance, giving defense

counsel the entire weekend to prepare for the rebuttal witnesses. See State v.

Greiner, 2d Dist. Greene No. 95-CA-08, 1996 WL 354765, 3 (June 28, 1996).

Under Crim.R. 16(L), the granting of a continuance is a remedy for a prosecutorial

violation of Crim.R. 16. Crim.R. 16(L). Even if the prosecutor had failed to

disclose the names of these witnesses in violation of the discovery rules, the trial

court granted a remedy for such a violation, removing the potential for prejudice

against the defendant by the admission of this evidence. See State v. Heinish, 50

Ohio St.3d 231, 236, 553 N.E.2d 1026, 1032 (1990). Given the facts of this case,


                                        -19-
Case No. 1-16-35


we do not find any evidence that the trial court abused its discretion by admitting

this evidence.

                 Legal Standard for Extrinsic Evidence of Other Acts

       {¶27} Evid.R. 404(A) prohibits the admission of character evidence “for

the purpose of proving action in conformity therewith on a particular occasion * *

*.” Evid.R. 404(A). One of several exceptions to this general rule follows in

404(A)(1), which states that

       Evidence of a pertinent trait of character offered by an accused,
       or by the prosecution to rebut the same is admissible; however,
       in prosecutions for rape, gross sexual imposition, and
       prostitution, the exceptions provided by statute enacted by the
       General Assembly are applicable.

Evid.R. 404(A)(1).

       In other words, Evid.R. 404(A)(1) allows a defendant to “offer
       evidence of his good character as proof that he did not commit
       the act charged because such conduct is not in accord with his
       character[,]” but if he does, “the prosecution [may] offer
       evidence of the bad character of the accused.” “By introducing
       such evidence, the defendant ‘opens the door’ for the
       prosecution, which is then permitted to rebut or impeach the
       character evidence on cross-examination.”

(Citations omitted.) State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-

1788, ¶ 119.

       {¶28} Evid.R. 404(A)(1) expressly subjects itself to statutory provisions in

the Revised Code that further restrict the admissibility of character evidence in

rape cases. R.C. 2907.02(D) demarcates these limitations and reads as follows:



                                        -20-
Case No. 1-16-35


      Evidence of specific instances of the defendant's sexual activity,
      opinion evidence of the defendant's sexual activity, and
      reputation evidence of the defendant's sexual activity shall not
      be admitted under this section unless it involves evidence of the
      origin of semen, pregnancy, or disease, the defendant’s past
      sexual activity with the victim, or is admissible against the
      defendant under section 2945.59 of the Revised Code, and only
      to the extent that the court finds that the evidence is material to
      a fact at issue in the case and that its inflammatory or
      prejudicial nature does not outweigh its probative value.

R.C. 2907.02(D).

      {¶29} However, “[a] defendant waives the statutory limitations regarding

specific instances of sexual activity when the defendant ‘opens the door’ to the

issue of his past sexual conduct.” State v. Depinet, 3d Dist. Seneca No. 13-12-32,

2013-Ohio-1850, ¶ 18, citing State v. Banks, 71 Ohio App.3d 214, 593 N.E.2d 346

(3d Dist.1991). See State v. Seymour, 2d Dist. Montgomery No. 14324, 1994 WL

660763 (Nov. 23, 1994); State v. Fannin, 4th Dist. Ross No. 98CA2456, 1999 WL

402231 (June 11, 1999); State v. Chojnacki, 9th Dist. Medina No. 2326-M, 1994

WL 721918 (Dec. 30, 1994); State v. Bozeman, 12th Dist. Butler No. CA2008-10-

248, 2009-Ohio-3677, ¶ 49-50. Thus, when a defendant in a rape case ‘opens the

door’ by referencing his or her character or past behavior—regardless of whether

this behavior was sexual activity or other acts—the prosecution “may call as

rebuttal witness individuals who have observed a defendant engage in acts that

were inconsistent with his assertions.” State v. Hardie, 2d Dist. Montgomery No.

19954, 2004-Ohio-6783, ¶ 21, citing State v. Agner, 135 Ohio App.3d 286, 293,



                                      -21-
Case No. 1-16-35


733 N.E.2d 676 (1999); Banks, supra, at 219-220. See Holt v. State, 107 Ohio St.

307, 140 N.E. 349 (1923).

       {¶30} “The admission of such [other-acts] evidence lies within the broad

discretion of the trial court, and a reviewing court should not disturb evidentiary

decisions in the absence of an abuse of discretion that created material prejudice.”

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14,

quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66.

“An abuse of discretion is more than an error of judgment; rather, it implies that

the trial court's decision was unreasonable, arbitrary, or capricious.” Schroeder v.

Niese, --- N.E.3d ---, 2016-Ohio-8397, ¶ 7, quoting Heilman at ¶ 14. “When

applying the abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court.” State v. Plott, --- N.E.3d ---,

2017-Ohio-38, ¶ 52 (3d Dist.), citing State v. Slappey, 3d Dist. Marion No. 9–12–

58, 2013-Ohio-1939, ¶ 12.

                                  Legal Analysis

       {¶31} On appeal, the prosecution argues that Howton made three

statements during direct examination that put his character at issue and ‘opened

the door’ to the admission of SS and AH’s testimony on rebuttal. First, the

prosecution points to a statement made by Howton to his defense counsel when he

was explaining why he repeatedly hit AD. In this exchange, Howton stated, “I felt

like she made me get out of my character and, you know, put my hands on her


                                        -22-
Case No. 1-16-35


after she put her hands on me first.” Doc. 145 at 593-594. Second, the State

points to the reason that he gave his defense counsel for apologizing to AD after

he hit her. He said, “Yea, I should have had more self-control because I’m a man

and, you know, I don’t feel like it’s right for a man to hit a woman.” Id. at 596-

597. Third, the prosecution points to a statement in which Howton was relaying

the content of a conversation he had with the police investigator assigned to this

case. When asked by his defense counsel at trial whether he denied the allegations

of rape during the police investigation, Howton said, “I always told him [the

investigator] that I didn’t. I ain’t never been known to be no person like that.” Id.

at 610.

          {¶32} With these statements, Howton defended himself by arguing that the

accusations against him were inconsistent with his character.        His statements

represent himself as a peaceful person that is not disposed to violent behavior. Id.

at 593-594, 596-597, 610. The first two statements put his character at issue in

regard to the offenses of kidnapping and felonious assault. The third statement put

his allegations of his good character forward as a reason to believe that he did not

commit the crime of rape. Id. In so doing, he made his character an issue in this

trial and ‘opened the door’ for the prosecution to rebut these assertions with

evidence showing that his character did not conform to his representations at trial.

See Velez at ¶ 118-119, citing State v. Jacobs, 4th Dist. Gallia No. 03CA24, 2004-

Ohio-3393, ¶ 20; State v. Grubb, 111 Ohio App.3d 277, 675 N.E.2d 1353 (2d


                                        -23-
Case No. 1-16-35


Dist.1996). Further, we do not see any other indications in the record that the trial

court abused its discretion in admitting this evidence. For these reasons, Howton’s

second assignment of error is overruled.

                             Third Assignment of Error

         {¶33} In his third assignment of error, Howton argues that he was

prejudiced by the ineffective assistance of his trial counsel. While Howton was

testifying, defense counsel asked him several questions about whether AD struck

Howton first and argued in closing statements that Howton’s violent actions were

provoked by AD. Doc. 145 at 587, 593-594, 597, 611. See Doc. 147 at 801-802.

On appeal, Howton argues that it was not logical for his trial counsel to make this

argument and then not request a jury instruction for aggravated assault. As a

consequence, the trial court only gave the jury instructions for the more serious

offense of felonious assault. Howton argues that had the jury been given the

instructions for aggravated assault, they may have found from these facts that he

acted in response to provocation, finding him guilty of a lesser offense. He now

requests that this court reverse his conviction for felonious assault and order a new

trial.

                                  Legal Standard

         {¶34} Under Ohio law, “a properly licensed attorney is presumed to carry

out his duties in a competent manner.” State v. Gee, 3d Dist. Putnam No. 12-92-9,

1993 WL 270995 (July 22, 1993). Thus, the petitioner has the burden of proving


                                        -24-
Case No. 1-16-35


the ineffective assistance of counsel claim. State v. Mayse, --- N.E.3d ---, 2017-

Ohio-1483, ¶ 22 (3d Dist.), quoting State v. Calhoun, 86 Ohio St.3d 279, 289, 714

N.E.2d 905 (1999). Under the test set forth in Strickland v. Washington, the

petitioner must establish two elements. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). If the petitioner cannot

prove one of these elements, “it [is] unnecessary for a court to consider the other

prong of the test.” State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d

Dist.).

          {¶35} First, the petitioner must establish that “counsel’s performance was

deficient. This requires showing that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland at 687. “In order to show deficient performance, the

defendant must prove that counsel's performance fell below an objective level of

reasonable representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, 848 N.E.2d 810, ¶ 95, citing Strickland at 687. “Counsel need not raise

meritless issues or even all arguably meritorious issues.” Mayse at ¶ 24, citing

State v. Jones, 91 Ohio St.3d 335, 354, 744 N.E.2d 1163 (2001). “[T]he failure to

make objections is not alone enough to sustain a claim of ineffective assistance of

counsel.” Id. at ¶ 103, citing State v. Holloway, 38 Ohio St.3d 239, 244, 527

N.E.2d 831 (1988); State v. Gumm, 73 Ohio St.3d 413, 428, 653 N.E.2d 253




                                         -25-
Case No. 1-16-35


(1995). Further, “counsel’s decision not to request a jury instruction falls within

the ambit of trial strategy.” Conway at ¶ 111.

       {¶36} Second, the petitioner needs to establish “that the deficient

performance prejudiced the defense. This requires showing that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Strickland at 687. “To show prejudice, the defendant must show a

reasonable probability that, but for counsel's errors, the result of the proceeding

would have been different.” Conway at ¶ 95, citing Strickland at 687; State v.

Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). “Appellate courts

examine the record to determine “whether the accused, under all the

circumstances, * * * had a fair trial and substantial justice was done.” State v.

Rodriquez, 3d Dist. Defiance No. 4-16-16, 2017-Ohio-1318, ¶ 9, quoting State v.

Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.

                                  Legal Analysis

       {¶37} On appeal, Howton has failed to establish that “counsel’s

performance was deficient” and that “counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, supra, at 687. He alleges that his trial counsel should

have requested jury instructions for the offense of aggravated assault in addition to

the instructions that were provided for the offense of felonious assault and seems




                                        -26-
Case No. 1-16-35


to suggest that, upon trial counsel’s request, the trial court would have been

obligated by law to include the requested instruction.

       {¶38} A trial court, however, has the discretion to deny requested jury

instructions unless “the requested instructions contain a correct, pertinent

statement of the law and are appropriate to the facts * * *.” State v. Lessin, 67

Ohio St.3d 487, 494, 620 N.E.2d 72, 77 (1993). The following analysis of this

case will show that the trial court would not have been obligated to give these jury

instructions if they had been requested. Thus, the decision by defense counsel not

to request jury instructions for the offense of aggravated assault was a matter of

trial strategy and not a failure to act that falls below the standard of reasonableness

to which attorneys are held. See State v. Harrison, 2015-Ohio-1419, 31 N.E.3d

220, ¶ 89, citing State v. Morris, 9th Dist. Summit No. 22089, 2005-Ohio-1136,

¶ 100; State v. Fisk, 9th Dist. Summit No. 21196, 2003-Ohio-3149, ¶ 9; State v.

Hill, 73 Ohio St.3d 433, 443, 653 N.E.2d 271 (1995); State v. Oates, 2013-Ohio-

2609, 993 N.E.2d 846, ¶ 9 (3d Dist.).

       {¶39} The elements for the crimes of felonious assault and aggravated

assault are identical except that the offense of aggravated assault has “the

additional mitigating element of serious provocation.” State v. Deem, 40 Ohio

St.3d 205, 211, 533 N.E.2d 294, 299-300 (1988). See R.C. 2903.12. Compare

R.C. 2903.11.




                                         -27-
Case No. 1-16-35


       [I]n a trial for felonious assault, where the defendant presents
       sufficient evidence of serious provocation (such that a jury could
       both reasonably acquit defendant of felonious assault and
       convict defendant of aggravated assault), an instruction on
       aggravated assault (as a different degree of felonious assault)
       must be given.

Id. at 300. Under this rule, “[p]rovocation, to be serious, must be reasonably

sufficient to bring on extreme stress and the provocation must be reasonably

sufficient to incite or to arouse the defendant into using deadly force.” Id., quoting

State v. Mabry, 5 Ohio App.3d 13, 449 N.E.2d 16 (1982), paragraph five of the

syllabus.

       {¶40} In this case, the defendant admitted at trial that he had his arm

around AD’s throat, grabbed her neck, pushed her, and slapped her. Doc. 145 at

586, 588, 592-593. In letters he sent to AD while he was incarcerated, Howton

admitted that he “lost it,” was drunk at the time of the incident, “smacked [her] a

couple times too hard,” “beat [her] up,” and choked her. Doc. 146 at 683-685. On

appeal, Howton points to the fact that AD punched him one time as the “serious

provocation” that prompted his violent response. Courts across Ohio, however,

have held that “a victim’s simple pushing or punching does not constitute

sufficient provocation to warrant an aggravated assault instruction.”        State v.

Bryan, 4th Dist. Gallia No. 03CA3, 2004-Ohio-2066, ¶ 24, citing State v. Koballa,

8th Dist. Cuyahoga No. 82013, 2003-Ohio-3535; State v. Pack, 4th Dist. Pike No.




                                        -28-
Case No. 1-16-35


93CA525, 1994 WL 274429 (June 20, 1994). State v. Pennington, 5th Dist.

Guernsey No. 16CA14, 2017-Ohio-1423, ¶ 19-20.

       {¶41} Thus, AD’s action was not enough “to arouse the passions of an

ordinary person beyond the power of his or her control.” State v. Torres, 3d Dist.

Defiance No. 4-01-06, 2002 WL 418392 (March 18, 2002), quoting State v.

Shane, 63 Ohio St.3d 630, 637, 590 N.E.2d 272 (1992). Since this evidence was

not sufficient under Ohio law to require a jury instruction for aggravated assault,

the decision not to request a jury instruction for the offense of aggravated assault

was clearly a matter of trial strategy and not evidence of a deficient performance

on the part of defense counsel. As Howton has not carried the burden of showing

his trial counsel’s performance was deficient, his third assignment of error is

overruled.

                                    Conclusion

       {¶42} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Allen County Court of Common Pleas is

affirmed.

                                                               Judgment Affirmed

ZIMMERMAN and SHAW, J.J, concur.

/hls




                                       -29-
