[Cite as State v. Gettings, 2017-Ohio-7764.]



                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                         SEVENTH DISTRICT

STATE OF OHIO                                     )
                                                  )
        PLAINTIFF-APPELLEE                        )
                                                  )           CASE NO. 16 MA 0050
VS.                                               )
                                                  )                  OPINION
LEON GETTINGS                                     )
                                                  )
        DEFENDANT-APPELLANT                       )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the Court of
                                                  Common Pleas of Mahoning County,
                                                  Ohio
                                                  Case No. 2012 CR 743

JUDGMENT:                                         Affirmed.

APPEARANCES:
For Plaintiff-Appellee                            Attorney Paul Gains
                                                  Mahoning County Prosecutor
                                                  Attorney Ralph Rivera
                                                  Assistant Prosecutor
                                                  21 West Boardman Street, 6th Floor
                                                  Youngstown, Ohio 44503-1426

For Defendant-Appellant                           Attorney Carlo Ciccone
                                                  1456 White Oak Drive NE
                                                  Warren, Ohio 44841-1650

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                  Dated: September 21, 2017
[Cite as State v. Gettings, 2017-Ohio-7764.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Leon Gettings, appeals his convictions for rape.
Gettings challenges the sufficiency and manifest weight of the evidence, contends
trial counsel was ineffective and finally challenges the trial court's rulings regarding
his motion to suppress. As his arguments are meritless, the judgment of the trial court
is affirmed.
        {¶2}     On August 2, 2012, Gettings was indicted for three counts of rape, all in
violation of R.C. 2907.02 (A)(1)(c)(B) and first degree felonies. Each count alleged
that on or between August 24, 2011, and June 10, 2012, Gettings engaged in sexual
conduct with T.W. whose ability to resist or consent was substantially impaired
because of a mental or physical condition. She was in eighth grade at the time of the
offenses but comprehended at a third grade level. On May 21, 2013, Gettings
entered a plea of guilty to the indictment.
        {¶3}     There were multiple pre-trial filings and procedural delays. Pertinent to
this appeal, Gettings replaced his original attorney and ultimately was granted a
motion to withdraw his plea. Counsel filed, and then withdrew, two motions to
suppress, one in 2014 and a second in 2015, as well as a motion to dismiss. Five
days before an August 2015 trial, co-counsel entered an appearance and filed a
motion for leave to file a motion to suppress and other pre-trial motions, which the
trial court denied as untimely. Gettings filed a motion to waive jury trial and on the
day of trial the judge recused herself and asked the administrative judge to reassign
the case.
        {¶4}     After a new judge was assigned, Gettings once again executed a
waiver of jury trial. In addition to a third motion to suppress, Gettings filed a second
motion to dismiss contending the indictment was too vague. The State opposed
these motions arguing that Gettings' motions were untimely.
        {¶5}     A bench trial was held on February 29 & March 1, 2016. The State
presented the testimony of eleven witnesses including the victim. The defense's sole
witness was Gettings. He was found guilty and sentenced to ten years on each of the
three counts to run concurrently. He was designated a Tier III sex offender.
                                                                                 -2-


                           Sufficiency & Manifest Weight
       {¶6}   Gettings' first of three assignments of error asserts:

       The Trial Court violated Appellant's rights to due process and a fair trial
       when it entered judgment of conviction based on insufficient evidence
       and against the manifest weight of the evidence and, as a result, the
       U.S. Constitution and the Ohio Constitution require the conviction to be
       reversed with prejudice to further prosecution.

       {¶7}   "A challenge to the sufficiency of the evidence tests whether the state
has properly discharged its burden to produce competent, probative, evidence on
each element of the offense charged." State v. Petefish, 7th Dist. No. 10 MA 78,
2011–Ohio–6367, ¶ 16. Thus, sufficiency is a test of adequacy. State v. Thompkins,
78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Whether the evidence is
legally sufficient to sustain a verdict is a question of law. Id. “In reviewing the record
for sufficiency, 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.” State v. Smith,
80 Ohio St.3d 89, 113, 1997-Ohio-355, 684 N.E.2d 668.
       {¶8}   "Weight of the evidence concerns the inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue rather than the
other." State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
A conviction will only be reversed as against the manifest weight of the evidence in
exceptional circumstances. Id. This is so because the triers of fact are in a better
position to determine credibility issues, since they personally viewed the demeanor,
voice inflections and gestures of the witnesses. State v. Hill, 75 Ohio St.3d 195, 204,
661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212
(1967).
       {¶9}   Thus, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences and determine whether, in resolving conflicts
                                                                               -3-


in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered. Thompkins,
387. However, "[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province
to choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002–
Ohio–1152, *2, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th
Dist.1999). Under these circumstances, the verdict is not against the manifest weight
and should be affirmed. State v. Smith, 2016–Ohio–3418, 66 N.E.3d 279, ¶ 49 (7th
Dist.).

          {¶10} With regard to the rape conviction, R.C. 2907.02(A)(1)(c) the State was
required to prove five elements: 1) that Gettings engaged in sexual conduct; 2) with
another, not his spouse; 3) substantial impairment of the other's ability to resist or
consent; 4) due to a mental condition; and 5) Gettings knew or had reasonable cause
to believe that the victim's ability to resist or consent was substantially impaired due
to a mental condition. State v. Hillock, 7th Dist. No. 02-538-CA, 2002–Ohio–6897, ¶
15.
          {¶11} Gettings was indicted with three counts of rape in violation of R.C.
2907.02(A)(1)(c) occurring between August 24, 2011 and June 10, 2012. The first
count of the indictment involved the events of June 10, 2012. The two remaining
counts are based upon a course of conduct that occurred on at least two occasions
during the time frame listed in the indictment.
          {¶12} The June 10, 2012 count of rape is supported by sufficient evidence
and is not against the manifest weight of the evidence. Gettings does not contest any
element other than sexual conduct with the victim. However, Gettings made a written
statement to police admitting he kissed the victim on her stomach and the top of her
vagina. The victim testified that on that date the police were called because Gettings
"was messing" with her. Specifically, that he put her on his bed, pulled down her
pants and put his tongue on her vagina. The victim's mother, M.W., walked in the
bedroom while this was occurring. M.W. testified that she "walked into what I saw
                                                                             -4-


Leon having oral sex with my daughter." He verbally admitted to performing oral sex
on the victim to the law enforcement. Further, Gettings' DNA profile was found on the
victim's underwear.
      {¶13} We next consider whether the two remaining counts are supported by
sufficient evidence and are not against the manifest weight of the evidence. In
addition to the June 10th incident the victim testified that Gettings performed
cunnilingus on her on the couch in the living room. The other pertinent testimony is
from the two nurses who treated the victim. The first nurse examined the victim when
she arrived at the emergency room and stated that Gettings "put his penis in her." A
nurse practitioner, who worked at the Child Advocacy Center, testified that the victim
disclosed that Gettings had rubbed his penis in her face, ejaculated on her, digitally
penetrated her, placed his tongue in her anus and put his penis in her anus and her
vagina. The CAC nurse stated that the victim's knowledge about sexuality was
advanced for her developmental level.
      {¶14} Considering this testimony from these witnesses, there was sufficient
evidence of two counts of rape. Further, the convictions are not against the manifest
weight of the evidence. Thus, this assignment of error is meritless.
                         Ineffective Assistance of Counsel
      {¶15} In his second of three assignments of error, Gettings asserts:

      Appellant was deprived of the effective assistance of trial counsel in
      violation of appellant's rights under the Fifth, Sixth, and Fourteenth
      Amendments to the United States Constitution, and Sections 10 and
      16, Article 1 of the Ohio Constitution.

      {¶16} To prove an allegation of ineffective assistance of counsel, the
defendant must satisfy a two-prong test; that counsel's performance has fallen below
an objective standard of reasonable representation, and that he was prejudiced by
counsel's performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E .2d 373 (1989),
                                                                                -5-


at paragraph two of the syllabus. To demonstrate prejudice, the defendant must
prove that, but for counsel's errors, the result of the trial would have been different.
Id. at paragraph three of the syllabus. In Ohio, a properly licensed attorney is
presumed to be competent and the burden is on the defendant to prove otherwise.
State v. Hamblin, 37 Ohio St.3d 153, 155, 524 N.E.2d 476 (1988).
       {¶17} Gettings argues that his trial counsel rendered ineffective assistance in
five ways: inadequate direct examination; failing to subpoena witnesses; stipulating
to DNA evidence; filing motions to suppress and withdrawing them; and waiving his
jury trial. Each will be discussed in turn.
                                   Direct Examination
       {¶18} Advice provided by a criminal defense attorney to the client regarding
the decision to testify is a tactical decision that cannot be challenged as evidence of
ineffective assistance of counsel. State v. Winchester, 8th Dist. No.79739, 2002-
Ohio-2130, ¶ 12 (internal citations omitted). However, a claim for ineffective
assistance may be successful if the defendant's decision to testify was the result of
coercion. Id. Gettings seems to argue that he should not have testified as it was not
required. However, he does not argue coercion. As such, this remains a tactical
decision of trial counsel.
       {¶19} Gettings further contends that his trial counsel was unprepared and
conducted an inadequate direct examination of him. Gettings' attorney on appeal
selectively picks portions of the transcript to support this contention. As a result, the
arguments are made out of context. A review of the full record demonstrates that
Gettings' complaints fall within the realm of trial strategy.
       {¶20} Appellate counsel also takes issue with the fact that trial counsel twice
asked Gettings whether he was satisfied with her representation. Both times trial
counsel was met with an objection from the State. The trial judge admonished trial
counsel the second time. While unorthodox, appellate counsel provides no law that
this line of questioning establishes deficient performance.
                  Failing to Subpoena Witnesses & DNA Evidence
                                                                              -6-


       {¶21} "The mere failure to subpoena witnesses is not a substantial violation of
an essential duty to a client in the absence of a showing that testimony of any one or
more of the witnesses would have assisted the defense." Middleton v. Allen, 63 Ohio
App.3d 443, 448, 579 N.E.2d 254 (12th Dist.1989) (internal citations omitted). The
failure to subpoena witnesses is not prejudicial if the testimony of those witnesses
simply would have been corroborative. Id.
       {¶22} Gettings argues that trial counsel was ineffective because she did not
subpoena the victim's mother. M.W. was the first witness called by the State and
cross-examined by defense counsel. At the end of the first day of trial, defense
counsel wanted to recall her because "there were statements that were made today
that I feel that I need to present rebuttal on." Counsel ultimately did not subpoena
Wallace or recall her. Gettings fails to explain how this testimony would have assisted
the defense or if it would be more than just corroborative or repetitive.
       {¶23} Gettings argues that his trial counsel was deficient for stipulating to
DNA evidence. This argument is moot as the trial court refused to accept a
stipulation.
                          Withdrawing Motion to Suppress
       {¶24} "[F]ailure to file a suppression motion does not constitute per se
ineffective assistance of counsel." State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–
Ohio–448, 721 N.E.2d 52, quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986). Consequently, "the decision to withdraw a motion
to suppress does not constitute per se ineffective assistance of counsel." State v.
Dominguez, 12th Dist. No. CA2011–09–010, 2012–Ohio–4542, ¶ 20. Gettings must
show that the motion would have had a reasonable probability of success. See State
v. Nields, 93 Ohio St.3d 6, 34, 2001–Ohio–1291, 752 N.E.2d 859. Gettings argues
that his trial counsel was ineffective for withdrawing motions to suppress that had
been previously filed but does not argue or demonstrate that the motions would have
had a reasonable probability of success.
                                  Waiving Jury Trial
                                                                                  -7-


       {¶25} Gettings acknowledges that waiving a jury trial is within the ambit of trial
strategy, however, he argues "coupled with the myriad of other factors involved,
question arises as to whether the decision was strategic." However, we have
determined that the other allegations of ineffective assistance of counsel are
meritless. Further, Gettings waived his right to a jury trial in open court. A written jury
trial waiver is presumptively voluntary, knowing, and intelligent. State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 49. Gettings does not argue that
his waiver was not knowing, voluntary and intelligently made.
       {¶26} In sum, Gettings has not established deficient performance of his trial
counsel that rises to the level of ineffective assistance. Thus, his second assignment
of error is meritless.
                                       Plain Error
       {¶27} In his third of three assignments of error, Gettings asserts:

       The Trial Court committed plain error by refusing to hear Appellant's
       motion to suppress because it was under the erroneous belief that it
       had been untimely filed.

       {¶28} The record reflects the following regarding this assignment of error:

       THE COURT: Before I get to counsel to see if there is anything they
       want to put on the record, I want to clarify a few things on the record.
       On January 6 there was some motions that were filed by the defense.
       Those motions consisted of a motion to dismiss, a motion in limine,
       request for the court to consider lesser included offenses, and a motion
       to suppress. We had a phone conference as a result of those motions
       and at that time the state audibly indicated their objection to all four of
       those motions as being untimely filed. The court then conducted
       discussions with counsel on behalf of the defendant and was advised
       that they were going to withdraw all of those motions except for the
                                                                        -8-


request that the court consider lesser included offenses. Counsel, is
that correct?
DEFENSE COUNSEL: That's correct.
THE COURT: Okay. So I want the record to be clear that with reference
to the motion to dismiss, the court is going to deny that motion whether
it had been withdrawn or not. The motion in limine I am going to deny
because all of the objections or the issues that are raised are the issues
that I would expect to be raised at the time that the testimony was
offered during the trial. With reference for the request for the court to
consider lesser included offenses, I think we are all in agreement that
that's an obligation I have to do, and I think the state concurred with
that at the time when we had our phone conference; is that correct?
Prosecutor, you were in agreement that there is no question I have to
consider lesser included offenses? It doesn't need to be a motion to do
that?
PROSECUTOR: Yes, we do agree with that.
THE COURT: I am obligated by law and with reference to the motion to
suppress, just so the record is clear and this is all part of what we
conducted in our conversation in the phone call where we discussed
these things, it was discussed, and I believe Mr. Johnson indicated that
the motion that had been filed on January 6 was the same motion that
had been filed on October 23, 2014, and on June 8, 2015. Both of
those motions have been withdrawn, and the only issue that was
different in the new motion that had been filed on January 6, 2016, is
there was dialogue and discussion indicating that the defendant was
unaware and unable to appreciate his constitutional right because of his
use of Spice and some other prescribed medications or other
medications that he had been taking. Once again, that motion has been
withdrawn at this time, and we will not make any ruling on that. There
                                                                                   -9-


       also was some discussion at that time, and is contained in the motion,
       that there was no audio or video recording of Mr. Gettings' statement.
       The prosecution indicated that there was, in fact, recorded testimony
       and that that had been provided to the defense. And my understanding
       is that has also been provided. Again so that they are aware and they
       have in their possession the recordings that I anticipate may be offered
       by the state in this case. Inasmuch as the motions have been
       withdrawn, in particular the motion to suppress has been withdrawn, it's
       now a moot point. It doesn't need to be ruled on by the court, even
       though it needs to be pointed out that it was filed untimely. The motions
       had to be filed by the last day of the year, is my recollection was, and
       that was not accomplished. Having discussed those, I am unaware of
       any other outstanding matters that are contained in the court file, and I
       will turn to the attorneys to see whether there is any issues that they
       wish to put on the record.


       {¶29} Gettings' trial counsel never made any argument regarding the trial
court's conclusion that the motion was untimely. "An appellate court will not consider
any error which counsel for a party complaining of the trial court's judgment could
have called but did not call to the trial court's attention at a time when such error
could have been avoided or corrected by the trial court." State v. Awan, 22 Ohio
St.3d 120, 122, 489 N.E.2d 277 (1986). That said, Crim.R. 52(B) gives appellate
courts discretion to correct "[p]lain errors or defects affecting substantial rights." [T]he
accused bears the burden of proof to demonstrate plain error within the record and to
establish this must show a deviation from a legal rule that constitutes an 'obvious'
defect in the trial proceedings. State v. Rogers, 143 Ohio St.3d 385, 2105-Ohio-2459,
38 N.E.3d 860, ¶ 22.
       {¶30} Gettings has not established plain error. The record does not
demonstrate that the trial court refused to hear Gettings' motion to suppress because
                                                                              - 10 -


it was untimely. The trial court indicated there had been a telephone conference and
the motion to suppress was discussed in the context of the previously filed motions
and the evidence the State had in its possession. At that point trial counsel for
Gettings withdrew the motion to suppress.
       {¶31} As the trial court never refused to hear Gettings' motion to suppress, his
third assignment of error is meritless.
       {¶32} In conclusion, Gettings' arguments are meritless as his convictions for
rape were supported by the evidence and are not against the manifest weight of the
evidence. Further, he has not demonstrated that trial counsel was constitutionally
ineffective, and there was no plain error regarding the motions to suppress.
Accordingly, the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Robb, P. J., concurs.
