[Cite as State v. Macksyn, 2013-Ohio-1649.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. Sheila G. Farmer, J.
-vs-
                                                 Case No. 2012CA00140
DELANOR L. MACKSYN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Case No. 2011CR1494


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       April 22, 2013


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JOHN D. FERRERO,                              BERNARD L. HUNT
PROSECUTING ATTORNEY,                         2395 McGinty Rd NW
STARK COUNTY, OHIO                            North Canton, Ohio 44720

BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00140                                                          2

Hoffman, J.


       {¶1}      Defendant-appellant Delanor Lamar Macksyn appeals his conviction and

sentence entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}      At all times pertinent herein, A.L. a fifteen year-old female, lived with her

mother and Appellant. On June 9, 2011, A.L. informed her mother she planned to run

away, disclosing to her mother Appellant had had sex with her. A.L.'s mother did not

believe her, but took her to Affinity Medical Center where she was seen and told to go to

Akron Children's Hospital for a SANE (Sexual Assault Nurse Examiner) nurse

examination. A.L.'s mother then left the hospital subsequently against medical advice.

The hospital subsequently reported the incident to Child Protection Services and the

Canton Police Department.

       {¶3}      As a result of a follow up call from Child Protection Services, A.L.'s mother

took her to the Children's Network the following day.            A.L. was interviewed and

physically examined. A.L., then in the ninth grade, disclosed Appellant had engaged in

sexual conduct with her since eighth grade. She stated he would ejaculate and wipe

himself off.

       {¶4}      As a result of A.L.’s statements, samples were taken of A.L.'s fingernail

clippings, blood, saliva, specimens from her vagina, perianal and anal area, the inside

of both cheeks, a strand of head hair and pubic hair and a sexual assault kit was

developed. The kit was then turned over to the Stark County Crime Laboratory.
Stark County, Case No. 2012CA00140                                                      3


       {¶5}   As a result of the allegations, the residence where Appellant and A.L. lived

was searched. The comforter and two sheets were taken from A.L.'s bed, black shorts,

and some paper towels. A DNA standard was also obtained from Appellant.

       {¶6}   On July 13, 2011, Michelle Foster of the Stark County Crime Laboratory

tested the sexual assault kit and determined the sperm present on the vaginal swab

taken from A.L. matched Appellant's DNA profile to a probability of 1 in 2.675 sextillion,

a very rare profile. Foster opined with the exception of an identical twin, Appellant was

the source of the semen from the vaginal swabs in A.L.'s sexual assault kit. The sperm

from the anal-perianal swabs matched Appellant's DNA source to a probability of 1 in

31.3 quadrillion, again a rare profile. Foster further opined the sperm bands were intact,

and sex was recent.

       {¶7}   Appellant was indicted by the Stark County Grand Jury on five counts of

unlawful sexual conduct with a minor, a violation of R.C. 2907.04(A)(B)(3). The State

subsequently dismissed two counts finding the evidence only supported three incidents

of sexual conduct. Following a jury trial, Appellant was convicted of the charges. The

trial court sentenced Appellant to sixty months in prison on each of the three counts to

be served consecutively for a total of 180 months in prison or fifteen years. The trial

court further designated Appellant a Tier II sexual offender.

       {¶8}   Appellant now appeals, assigning as error,

       {¶9}   “I. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

HIS TRIAL COUNSEL WHEN COUNSEL FAILED TO OBJECT AND REQUEST A

HEARING ON THE INTERVIEW HELD AT THE CHILD ADVOCACY CENTER BY C.J.

CROSS AS MANDATED BY STATE V. ARNOLD.
Stark County, Case No. 2012CA00140                                                           4


         {¶10} “II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S RULE

29, MOTION TO DISMISS THE INCIDENTS OF CHRISTMAS 2010 AND SPRING OF

2011.”

                                                   I.

         {¶11} In the first assignment of error, Appellant asserts he was denied the

effective assistance of counsel because his counsel failed to object to and request a

hearing on the victim’s interview conducted at the child advocacy center, the Children’s

Network.

         {¶12} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

         {¶13} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251(2009).

         {¶14} To show deficient performance, appellant must establish that “counsel's

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 688, 104 S.Ct. at 2064. 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, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel also has a duty to
Stark County, Case No. 2012CA00140                                                      5


bring to bear such skill and knowledge as will render the trial a reliable adversarial

testing process. Strickland, 466 U.S. at 688, 104 S.Ct. 2052 at 2065.

      {¶15} Thus, a court deciding an ineffectiveness claim must judge the

reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct. A convicted defendant making a claim of

ineffective assistance must identify the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment. The court must then

determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. In making that

determination, the court should keep in mind counsel's function, as elaborated in

prevailing professional norms, is to make the adversarial testing process work in the

particular case. At the same time, the court should recognize counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment. Strickland 466 U.S. 668 at 689,104

S.Ct. at 2064.

      {¶16} In light of “the variety of circumstances faced by defense counsel [and] the

range of legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel's assistance was reasonable

considering all the circumstances.” Strickland, 466 U.S. 668 at 689,104 S.Ct. at 2064.

At all points, “[j]udicial scrutiny of counsel's performance must be highly deferential.”

Strickland, 466 U.S. 668 at 689,104 S.Ct. at 2064.

      {¶17} An appellant must further demonstrate he suffered prejudice from his

counsel's performance. See Strickland, 466 U.S. at 691 (“An error by counsel, even if
Stark County, Case No. 2012CA00140                                                         6


professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. To prevail on his ineffective-assistance claim,

appellant must show, therefore, that there is a “reasonable probability” that the trier of

fact would not have found him guilty.

       {¶18} Appellant maintains his trial counsel was ineffective in failing to request a

hearing to determine if the victim interview was primarily forensic in nature; rather than

for the purpose of medical diagnosis, pursuant to State v. Arnold (2010), 126 Ohio St.3d

290, 2010-Ohio-2742. Second, he asserts counsel failed to subpoena C.J. Cross, the

social worker who conducted the interview. Third, he claims counsel failed to object to

the lack of a tape or transcript of the interview.

       {¶19} In State v. Arnold, supra, the Ohio Supreme Court held,

       {¶20} "We hold that statements made to interviewers at child-advocacy centers

that are made for medical diagnosis and treatment are nontestimonial and are

admissible without offending the Confrontation Clause. Thus, we affirm the judgment of

the court of appeals to the extent that M.A.'s statements to Marshall for the purpose of

medical treatment and diagnosis were properly admitted. We further hold that

statements made to interviewers at child-advocacy centers that serve primarily a

forensic or investigative purpose are testimonial and are inadmissible pursuant to the

Confrontation Clause when the declarant is unavailable for cross-examination at trial. "
Stark County, Case No. 2012CA00140                                                        7


       {¶21} Here, a review of the record demonstrates A.L. testified at trial and was

available for cross-examination at trial. Therefore, Appellant's right to confront A.L.

relative to statements made by A.L. has not been violated; and the statements are not

hearsay. While Appellant’s counsel failed to subpoena C.J. Cross, the social worker

who conducted the interview, we find the outcome of the trial would not have been

otherwise but for the alleged error. Further, Appellant has not demonstrated prejudice

as a result of the state’s failure to provide a tape or transcripts of the proceedings.

       {¶22} The first assignment of error is overruled.

                                                    II.

       {¶23} In the second assignment of error, Appellant argues the trial court erred in

denying his Criminal Rule 29 motion to dismiss the incidents during Christmas 2010,

and Spring of 2011.

       {¶24} In determining whether a trial court erred in overruling an appellant's

motion for judgment of acquittal, the reviewing court focuses on the sufficiency of the

evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965,

974(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991).

       {¶25} Appellant was convicted of unlawful sexual conduct with a minor, in

violation of R.C. 2907.04(A), which states:

       {¶26} "(A) No person who is eighteen years of age or older shall engage in

sexual conduct with another, who is not the spouse of the offender, when the offender

knows the other person is thirteen years of age or older but less than sixteen years of

age, or the offender is reckless in that regard."
Stark County, Case No. 2012CA00140                                                         8


       {¶27} Determinations regarding the credibility of witnesses and the weight of the

testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. No. 97333, 2012–

Ohio–2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

The trier of fact is best able “to view the witnesses and observe their demeanor,

gestures, and voice inflections, and use these observations in weighing the credibility of

the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007–Ohio–2202, 865

N.E.2d 1264, ¶ 24. The trier of fact may take note of any inconsistencies and resolve

them accordingly, “believ[ing] all, part, or none of a witness's testimony.” State v. Raver,

10th Dist. No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61,

67, 197 N.E.2d 548 (1964).

       {¶28} Here, A.L. testified to the location of the abuse, describing the sexual acts

in detail as committed by Appellant. Appellant essentially tries to attack the credibility of

A.L.'s testimony, but we find Appellant has not demonstrated the jury lost its way in

reaching its decision.

       {¶29} Accordingly, the trial court did not err in overruling Appellant's Criminal

Rule 29 motion for acquittal.

       {¶30} The second assignment of error is overruled.
Stark County, Case No. 2012CA00140                                           9


      {¶31} Appellant's conviction in the Stark County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                       s/ William B. Hoffman _________________
                                       HON. WILLIAM B. HOFFMAN


                                       s/ W. Scott Gwin _____________________
                                       HON. W. SCOTT GWIN


                                       s/ Sheila G. Farmer __________________
                                       HON. SHEILA G. FARMER
Stark County, Case No. 2012CA00140                                               10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
DELANOR L. MACKSYN                        :
                                          :
       Defendant-Appellant                :         Case No. 2012CA00140



       For the reasons stated in our accompanying Opinion, Appellant's conviction in

the Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
