[Cite as State v. Nian, 2016-Ohio-5146.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 15CAA070052
                                                :
 ABULAY NIAN                                    :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court
                                                    of Common Pleas, Case No. 14 CR I 11
                                                    0522



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             July 25, 2016




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 CAROL HAMILTON O’BRIEN                             DAVID E. STENSON
 DELAWARE CO. PROSECUTOR                            Suite 316
 MARK C. SLEEPER                                    131 North Ludlow Street
 140 North Sandusky St.                             Dayton, OH 45402
 Delaware, OH 43015
Delaware County, Case No. 15CAA070052                                                   2

Delaney, J.

       {¶1} Appellant Abulay Nian appeals from the June 16, 2015 Judgment Entry of

Prison Sentence of the Delaware County Court of Common Pleas. Appellee is the state

of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} At the time of these events, victim Jane Doe was 17 years old and lived with

her Mother and two brothers in Delaware County, Ohio. To avoid disclosure of the identity

of the sexual-assault victim and minor witnesses, the brothers will be referred to as John

Doe and Richard Roe. John Doe is mentally disabled and requires the assistance of an

“independent co-worker,” a home health aide who helps him with independent living skills.

Richard Roe was age 15.

       {¶3} On November 15, 2014, Mother, the three children, and appellant were in

the home. Appellant had worked with the family for approximately two weeks as John

Doe’s home health aide. He was employed through an agency Mother found with the

assistance of the Delaware County Disabilities Board. Appellant spent several hours with

John Doe five days a week, helping him with chores and tasks of independent living such

as laundry and cooking. During those two weeks, appellant and John Doe would often

“hang out” in John Doe’s bedroom, listening to music. Jane Doe and Richard Roe would

join them in listening to music or in going to a park to play basketball.

       {¶4} On this date, appellant came downstairs and exited the house to retrieve

his time sheet from his car. Mother and Richard Roe were in the downstairs living room.

Mother signed off on the time sheet. Appellant went back upstairs and Mother assumed

he was saying goodbye to John Doe.
Delaware County, Case No. 15CAA070052                                                   3


       {¶5} Jane Doe was in her bedroom watching Netflix when appellant knocked on

her door. He came into her bedroom and asked for a hug. Jane agreed and stood to hug

appellant. He tried to kiss her and put his hand on her “private area.” Jane was wearing

leggings and a sports bra. She testified appellant first put his hand on her vagina on top

of the leggings. Appellant started kissing her neck and she asked him to stop. She said

he stuck his hand inside the leggings and touched her vagina. She asked him to leave.

Appellant then pulled the leggings down to her knees and placed his mouth on her vagina.

Jane Doe described appellant gripping her thighs and said his mouth made contact with

her genitals. Jane Doe pushed appellant’s head away and appellant left the room.

       {¶6} Mother observed appellant leave the house. Richard Roe went upstairs

and discovered his sister “curled up in a ball” crying in her bedroom. She was FaceTiming

with a friend and testified she told the friend and her brother what happened and asked

what she should do. Richard Roe said Mother had to be told. He and Jane Doe told

Mother what happened and she called the Delaware County Sheriff’s Department

immediately.   Mother also called the agency which employed appellant and left a

message instructing the agency not to permit appellant to return to their home.

       {¶7} A deputy came to the house, took a report, collected the clothes Jane Doe

had been wearing, and instructed her to go to Nationwide Children’s Hospital for a sexual

assault examination. A rape kit was collected at the hospital and submitted to B.C.I for

forensic analysis.

       {¶8} A forensic biologist found amylase, a component of saliva, on the interior

crotch of Jane Doe’s leggings. A cutting from the area yielded a mixture of D.N.A.; Jane

Doe was the major contributor and the comparison with appellant’s D.N.A. was
Delaware County, Case No. 15CAA070052                                                     4


inconclusive. A swabbing of the area, however, also yielded a mixture of D.N.A., with

Jane Doe as the major contributor and appellant included as the minor contributor.

       {¶9} Appellant was charged by indictment with two counts of forcible rape

pursuant to R.C. 2907.02(A)(2), both felonies of the first degree. Appellant entered pleas

of not guilty and the case proceeded to trial by jury. Upon the close of appellee’s

evidence, appellant moved for acquittal upon Count I, forcible rape by digital penetration,

pursuant to Crim.R. 29(A). The trial court sustained the motion as to Count I, but overruled

the motion as to Count II, forcible rape by cunnilingus.

       {¶10} Appellant was found guilty upon Count II.

       {¶11} On May 13, 2015, appellant filed a motion for new trial based upon jury

misconduct. The motion was accompanied by an affidavit of a juror stating that during

deliberations, another juror “introduced into the discussions facts about [appellant] being

from Sierra Leone and having a prior record,” facts allegedly obtained from newspaper

accounts of the trial. Appellee responded with a motion in opposition.

       {¶12} The trial court overruled the motion for new trial on June 3, 2015 and the

matter proceeded to sentencing on June 15, 2015. The trial court imposed a prison term

of 5 years and determined appellant to be a Tier III sex offender.

       {¶13} Appellant now appeals from the trial court’s June 16, 2015 judgment entry

of conviction and sentence.

       {¶14} Appellant raises nine assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶15} “I. APPELLANT’S CONVICTION IS AGAINST THE SUFFICIENCY OF

THE EVIDENCE AS A MATTER OF LAW.”
Delaware County, Case No. 15CAA070052                                        5


      {¶16} “II. APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.”

      {¶17} “III.   PROSECUTORIAL MISCONDUCT DENIED APPELLANT A FAIR

TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF HIS FIFTH, SIXTH, AND

FOURTEENTH          AMENDMENT   RIGHTS     UNDER    THE     UNITED      STATES

CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO

CONSTITUTION.”

      {¶18} “IV. APPELLANT WAS DENIED DUE PROCESS OF LAW THROUGH

THE   TRIAL     COURT’S     ERRONEOUS     BELIEF   THAT   SENTENCING      WAS

MANDATORY.”

      {¶19} “V.     APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND

IMPARTIAL     PANEL    OF   JURORS   AS   GUARANTEED      UNDER   THE    SIXTH

AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE

I OF THE OHIO CONSTITUTION AS THE RESULT OF JURORS’ IMPROPER

CONSIDERATION OF EXTRANEOUS INFORMATION AND THE TRIAL COURT’S

REFUSAL TO GRANT APPELLANT A NEW TRIAL.”

      {¶20} “VI.    TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN

VIOLATION OF APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.”

      {¶21} “VII.    THE COURT ERRED IN INSTRUCTING JURORS TO STRIKE

INFORMATION THEY HAD HEARD FROM DEFENSE COUNSEL.”
Delaware County, Case No. 15CAA070052                                                      6


       {¶22} “VIII.    THE COURT ERRED IN INSTRUCTING JURORS WITH A

CONCLUSORY STATEMENT THAT APPELLANT COMMITTED THE CRIME WITH

WHICH HE WAS ACCUSED.”

       {¶23} “IX.     THE CUMULATIVE EFFECT OF THE FOREGOING ERRORS

DENIED APPELLANT A FAIR TRIAL.”

                                        ANALYSIS

                                               I., II.

       {¶24} Appellant’s first and second assignments of error are related and will be

considered together. Appellant argues his conviction upon one count of rape is against

the manifest weight and sufficiency of the evidence. We disagree.

       {¶25} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

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

       {¶26} Appellee argues appellant failed to preserve the issue of the sufficiency of

the evidence because he did not make a motion for acquittal pursuant to Crim.R. 29(A)
Delaware County, Case No. 15CAA070052                                                       7


as to Count II, only to Count I. T. 275. As the trial court noted, Count I was premised

upon the act of digital penetration and Count II upon the act of cunnilingus. In granting

appellant’s motion for acquittal as to Count I, the trial court found insufficient evidence of

penetration. (T. II, 178). In State v. Brown, 5th Dist. Licking No.2006–CA–53, 2007–

Ohio–2005 at ¶ 36, we noted failure to timely file a Crim.R. 29(A) motion during a jury trial

does not waive an argument on appeal concerning the sufficiency of the evidence. Thus,

for purposes of this review, we do not consider appellant to have waived his right to argue

sufficiency of the evidence on appeal. State v. Lee, 5th Dist. Richland No. 15-CA-52,

2016-Ohio-1045, ¶ 30.

       {¶27} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶28} Appellant was found guilty of one count of rape pursuant to R.C.

2907.02(A)(2), which states, “No person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or threat of

force.” R.C. 2907.01(A) defines “sexual conduct” in pertinent part as * * * cunnilingus

between persons regardless of sex; and, without privilege to do so, the insertion, however
Delaware County, Case No. 15CAA070052                                                       8


slight, of any part of the body or any instrument, apparatus, or other object into the vaginal

or anal opening of another. Penetration, however slight, is sufficient to complete vaginal

or anal intercourse.” The trial court defined cunnilingus as “a sexual act committed with

the mouth and the female [sex] organ.”1 As acknowledged by appellant in his brief, Jane

Doe testified appellant’s mouth made contact with her vagina. T. 155.

       {¶29} Nonetheless, appellant argues the evidence of the act of cunnilingus as

described by the victim at trial is insufficient to sustain his rape conviction because the

conduct described does not rise to the level of “sexual conduct” pursuant to R.C.

2907.01(A); the testimony did not indicate whether the contact was “intentional” and there

is no indication the act was committed for stimulation or sexual pleasure. We note the

statutory definitions of “rape” and “sexual conduct” require no such elements, nor did the

jury instruction upon the meaning of “cunnilingus,” to which appellant did not object. We

find the act described by the victim sufficiently describes an act of forcible cunnilingus.

See, State v. Dippel, 10th Dist. Franklin No. 03AP-448, 2004-Ohio-4649.

       {¶30} Appellant argues his rape conviction is against the manifest weight of the

evidence because there is no evidence he intended to place his mouth on the victim’s

vagina and there is no evidence the act was committed for sexual pleasure. We note,

however, the victim testified the act was committed after appellant had forcibly kissed her,

pulled down her leggings, and held her in place with his hands “gripping” her thighs. It is

well-established that the weight of the evidence and the credibility of the witnesses are




1 The word “sex” was initially omitted from the jury instructions. The trial court advised
the parties the instruction given to the jurors would be corrected to define cunnilingus as
“a sexual act committed with the mouth and the female [sex] organ.”
Delaware County, Case No. 15CAA070052                                                     9

determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-

2126, 767 N.E.2d 216.

       {¶31} Appellant further argues the physical evidence does not support his

conviction, but as appellee points out, amylase, an enzyme found in the highest

concentrations of saliva, was found on the inner crotch area of the leggings. A swab from

the same surface contained appellant’s D.N.A. While the forensic expert could not testify

the amylase specifically came from appellant because amylase does not contain D.N.A.,

it is circumstantial evidence that supports the victim’s testimony.       We are mindful,

moreover, that “[c]orroboration of victim testimony in rape cases is not required.” State v.

Meeks, 5th Dist. No. 2014CA00017, 2015-Ohio-1527, 34 N.E.3d 382, ¶ 81, appeal not

allowed, 143 Ohio St.3d 1543, 2015-Ohio-4633, 40 N.E.3d 1180, citing State v. Cuthbert,

5th Dist. Delaware No. 11CAA070065, 2012-Ohio-4472, 2012 WL 4474720, ¶ 28 and

State v. Johnson, 112 Ohio St.3d 210–217, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 53.

       {¶32} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’“ Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio

App.3d at 175. The jury neither lost its way nor created a miscarriage of justice in

convicting appellant upon one count of rape. Appellant’s first and second assignments

of error are overruled.

                                                III.

       {¶33} In his third assignment of error, appellant argues he was deprived of a fair

trial by numerous instances of prosecutorial misconduct. We disagree.

       {¶34} The test for prosecutorial misconduct is whether the prosecutor's remarks

and comments were improper and if so, whether those remarks and comments
Delaware County, Case No. 15CAA070052                                                       10

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 166, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d

596 (1990). In reviewing allegations of prosecutorial misconduct, we must review the

complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S.

168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not

provide a basis for reversal unless the misconduct can be said to have deprived appellant

of a fair trial based on the entire record. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d

293.

       {¶35} Appellant cites a number of instances of alleged prosecutorial misconduct

throughout the trial. We note appellant did not object to any of these comments at trial. If

trial counsel fails to object to the alleged instances of prosecutorial misconduct, the

alleged improprieties are waived, absent plain error. State v. White, 82 Ohio St.3d 16, 22,

1998–Ohio–363, 693 N.E.2d 772 (1998), citing State v. Slagle, 65 Ohio St.3d 597, 604,

605 N.E.2d 916 (1992).

       {¶36} We therefore review appellant's allegations under the plain-error standard.

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” The rule places

several limitations on a reviewing court's determination to correct an error despite the

absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a

legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious'

defect in the trial proceedings,” and (3) the error must have affected “substantial rights”

such that “the trial court's error must have affected the outcome of the trial.” State v. Dunn,

5th Dist. No.2008–CA–00137, 2009–Ohio–1688, citing State v. Morales, 10 Dist. Nos.
Delaware County, Case No. 15CAA070052                                                     11


03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19. The decision to correct a plain error is

discretionary and should be made “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶37} Appellant asserts the prosecutor mischaracterized the victim’s testimony in

closing argument but we disagree. In closing argument, a prosecutor may comment on

“what the evidence has shown and what reasonable inferences may be drawn therefrom.”

State v. Young, 5th Dist. Richland No. 14CA25, 2015-Ohio-2075, ¶ 25, citing Lott, supra,

51 Ohio St.3d at 165. The summary of the victim’s testimony cited here is a fair comment

on the evidence.

       {¶38} Appellant alleges the prosecutor “provided inaccurate sentencing

information to the court,” to wit, that the rape conviction implicated a mandatory prison

sentence pursuant to R.C. 2929.13(F)(2).2 Appellant cites and repeats the section in his

brief but argues the mandatory prison term does not apply because the victim is not under

13 years of age and the indictment did not contain a sexually-violent predator



2      R.C. 2929.13(F)(2) states: Notwithstanding divisions (A) to (E) of this section, the
court shall impose a prison term or terms under sections 2929.02 to 2929.06, section
2929.14, section 2929.142, or section 2971.03 of the Revised Code and except as
specifically provided in section 2929.20, divisions (C) to (I) of section 2967.19, or section
2967.191 of the Revised Code or when parole is authorized for the offense under section
2967.13 of the Revised Code shall not reduce the term or terms pursuant to section
2929.20, section 2967.19, section 2967.193, or any other provision of Chapter 2967. or
Chapter 5120. of the Revised Code for any of the following offenses:
       (2) Any rape, regardless of whether force was involved and regardless of the age
of the victim, or an attempt to commit rape if, had the offender completed the rape that
was attempted, the offender would have been guilty of a violation of division (A)(1)(b) of
section 2907.02 of the Revised Code and would be sentenced under section 2971.03 of
the Revised Code[.]
Delaware County, Case No. 15CAA070052                                                   12


specification. These are not elements of a mandatory prison term for rape and the

prosecutor did not misstate the sentencing terms.

       {¶39} Appellant argues the prosecutor improperly impugned defense trial counsel

but we disagree with the characterization of the statements. “Prosecutors are entitled to

respond, fairly, to arguments of the defense.” State v. Young, 5th Dist. Richland No.

14CA25, 2015-Ohio-2075, ¶ 30. The prosecutor did not impugn counsel.

       {¶40} Appellant summarily argues the prosecutor committed several other acts of

misconduct but upon our review of the record, we disagree that the statements were

improper, much less that “absent the prosecutor's comments, the jury would not have

found defendant guilty.” State v. Clay, 181 Ohio App.3d 563, 2009–Ohio–1235, 910

N.E.2d 14 at ¶ 49 (8th Dist.), citing State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883

(1984).

       {¶41} Appellant has not demonstrated any improper conduct by the prosecutor,

much less any that rises to the level of plain error. Appellant’s third assignment of error

is overruled.



                                               IV.

       {¶42} In his fourth assignment of error, appellant argues the trial court sentenced

him under the incorrect belief that the mandatory provisions outlined in R.C. 2929.13(F)

applied in the instant case. We disagree.

       {¶43} As we noted in our discussion of appellant’s third assignment of error, the

prosecutor advised the trial court that a prison term is mandatory upon any rape conviction

pursuant to R.C. 2929.13(F)(2). A rape conviction carries a mandatory prison term and
Delaware County, Case No. 15CAA070052                                                    13

the defendant is ineligible for judicial release. See, State v. Cunningham, 5th Dist.

Coshocton No. 05CA018, 2006-Ohio-4695.

       {¶44} Appellant again argues the mandatory term does not apply in this case

because the victim is not under the age of 13 and he was not indicted as a sexually-

violent predator. These are not requirements to impose a mandatory prison term upon a

rape conviction.

       {¶45} Appellant’s fourth assignment of error is overruled.

                                                V.

       {¶46} In his fifth assignment of error, appellant argues juror misconduct required

the trial court to grant appellant’s motion for new trial. We disagree.

       {¶47} The analysis of a case involving alleged juror misconduct requires a two-

tier inquiry. First, it must be determined whether there was juror misconduct. Second, if

juror misconduct is found, it must then be determined whether the misconduct materially

affected appellant's substantial rights. State v. Meeks, supra, 2015-Ohio-1527 at ¶ 115,

citing State v. Taylor, 73 Ohio App.3d 827, 833, 598 N.E.2d 818 (4th Dist.1991).

       {¶48} The hearing in this case was conducted pursuant to Ohio Evid. R. 606(B),

which states in pertinent part:

                     Upon an inquiry into the validity of a verdict or indictment, a

              juror may not testify as to any matter or statement occurring during

              the course of the jury's deliberations or to the effect of anything upon

              that or any other juror's mind or emotions as influencing the juror to

              assent to or dissent from the verdict or indictment or concerning the

              juror's mental processes in connection therewith. A juror may testify
Delaware County, Case No. 15CAA070052                                                       14


              on the question whether extraneous prejudicial information was

              improperly brought to the jury's attention or whether any outside

              influence was improperly brought to bear on any juror, only after

              some outside evidence of that act or event has been presented. * * *

              *.

       {¶49} The trial court’s decision that no juror misconduct occurred, and subsequent

denial of a new trial, is not an abuse of discretion. In cases involving outside influences

on jurors, trial courts are granted broad discretion in dealing with the contact and

determining whether to declare a mistrial or to replace an affected juror. Id. at ¶ 117, citing

State v. Phillips, 74 Ohio St.3d 72, 89, 656 N.E.2d 643, 661 (1995), and United States v.

Daniels, 528 F.2d 705, 709–710 (C.A.6, 1976); United States v. Williams, 822 F.2d 1174,

1189 (C.A.D.C.1987); Annotation, 3 A.L.R.5th 963, 971, Section 2 (1992). A trial judge's

determination of possible juror bias should be given great deference only upon the

appellate court's satisfaction that the trial judge exercised sound discretion in determining

whether juror bias existed and whether it could be cured. Id., citing State v. Gunnell, 132

Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243, ¶ 29. We are satisfied the trial court

exercised sound discretion.

       {¶50} Appellant failed to produce sufficient evidence of improper outside influence

upon the jury. The existence of a newspaper article about the case is not sufficient

evidence that an act of juror misconduct occurred.

       {¶51} Appellant’s fifth assignment of error is overruled.

                                                 VI.
Delaware County, Case No. 15CAA070052                                                      15


       {¶52} In his sixth assignment of error, appellant argues he received ineffective

assistance of trial counsel. We disagree.

       {¶53} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

       {¶54} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶55} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the 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.”

Strickland, 466 U.S. at 694.

       {¶56} First, appellant cites defense trial counsel’s failure to object to the

mandatory prison term. As we addressed supra, appellant’s prison term is mandatory.

       {¶57} Next, appellant cites defense trial counsel’s comments in voir dire and

opening statement about appellant’s status as an immigrant and his understanding of
Delaware County, Case No. 15CAA070052                                                    16


texts from the victim. The trial court later told the jury to disregard these statements

because they were not supported by the evidence at trial in light of appellant’s decision

not to testify. Counsel’s comments were reasonable trial strategy because when the

statements were made, the possibility existed appellant would testify. His citizenship

status was a legitimate matter of inquiry during voir dire.

       {¶58} Finally, appellant cites multiple failures to object without stating what the

basis for objection might have been. None of the cited examples are necessarily

objectionable and trial counsel's decision to ignore them may be reasonably attributed to

trial strategy. Trial strategy and even debatable trial tactics do not establish ineffective

assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848

N.E.2d 810, ¶ 101. Strategic choices made after substantial investigation “will seldom if

ever” be found wanting. Strickland, supra, 466 U.S. at 681, 104 S.Ct. 2052. Moreover,

the failure to object to error, alone, is not enough to sustain a claim of ineffective

assistance of counsel. State v. Crawford, 5th Dist. No. 07 CA 116, 2008-Ohio-6260, 2008

WL 5077638, ¶ 72, appeal not allowed, 123 Ohio St.3d 1474, 2009-Ohio-5704, 915

N.E.2d 1255, citing State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999).

Ultimately we find no reasonable probability the outcome of the trial would have been

different had such objections been raised. See, State v. Graber, 5th Dist. No.

2002CA00014, 2003-Ohio-137, 2003 WL 124283, ¶ 154, appeal not allowed, 101 Ohio

St.3d 1466, 2004-Ohio-819, 804 N.E.2d 40.

       {¶59} Appellant’s sixth assignment of error is overruled.

                                                VII.
Delaware County, Case No. 15CAA070052                                                    17


       {¶60} In his seventh assignment of error, appellant argues the trial court should

not have instructed the jury to disregard statements made by defense trial counsel

regarding appellant’s citizenship status. We disagree.

       {¶61} In opening statement, defense trial counsel stated appellant came to the

U.S. from Sierra Leone. Further, in reference to texts between appellant and the victim

after the rape, defense trial counsel stated appellant understood the victim referred to a

“hug,” prompting him to apologize, and he did not realize she alleged rape. When these

comments were not supported by any evidence at trial, the trial court properly instructed

the jury to disregard.

       {¶62} “[A] court's instructions to the jury should be addressed to the actual issues

in the case as posited by the evidence and the pleadings.” State v. Farringer, 5th Dist.

Fairfield No. 14-CA-43, 2015-Ohio-2644, ¶ 19, appeal not allowed, 144 Ohio St.3d 1440,

2015-Ohio-5468, 43 N.E.3d 451, citing State v. Guster, 66 Ohio St.2d 266, 271, 421

N.E.2d 157 (1981). A trial court does not abuse its discretion when it instructs the jury to

disregard an issue raised by a defendant in opening statement when no evidence in

support is presented at trial. State v. Johnson, 11th Dist. Ashtabula No. 2001-A-0043,

2002-Ohio-6570, ¶ 27.

       {¶63} Appellant’s seventh assignment of error is overruled.

                                               VIII.

       {¶64} In his eighth assignment of error, appellant summarily argues the trial court

erred in allegedly making a conclusory statement regarding appellant’s guilt during jury

instructions. We disagree.
Delaware County, Case No. 15CAA070052                                                     18


       {¶65} We have reviewed the cited comment and disagree with appellant’s

characterization of it as a conclusory statement of appellant’s guilt. The trial court merely

informed the jury of the allegations contained in the indictment during preliminary jury

instructions. The description of the conduct does not constitute a comment on appellant’s

guilt or innocence.

       {¶66} Appellant’s eighth assignment of error is overruled.

                                                  IX.

       {¶67} In his ninth assignment of error, appellant claims the effect of cumulative

errors in the jury trial deprived him of a fair trial. We disagree.

       {¶68} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the Ohio

Supreme Court held pursuant to the cumulative error doctrine “a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial court

error does not individually constitute cause for reversal.”

       {¶69} In the instant case, we do not find multiple instances of harmless error

triggering the cumulative error doctrine, and appellant’s ninth assignment of error is

therefore overruled.
Delaware County, Case No. 15CAA070052                                                19


                                    CONCLUSION

       {¶70} Appellant’s nine assignments of error are overruled and the judgment of the

Delaware County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Baldwin, J., concur.
