[Cite as State v. Zimpfer, 2016-Ohio-7330.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 26857
                                                    :
 v.                                                 :   T.C. NO. 12CR3315
                                                    :
 THOMAS S. ZIMPFER                                  :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

               Rendered on the ___14th___ day of _____October_____, 2016.

                                               ...........

ANDREW FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
      Attorney for Defendant-Appellant

                                              .............

FROELICH, J.

        {¶ 1} Thomas Zimpfer appeals from a judgment of the Montgomery County Court

of Common Pleas, which, after a hearing, denied his petition for post-conviction relief

based on ineffective assistance of counsel. For the following reasons, the trial court’s

judgment will be affirmed.
                                                                                              -2-


                              I. Factual and Procedural History

         {¶ 2} After a jury trial in October 2013, Zimpfer was convicted of four counts of

rape, in violation of R.C. 2907.02(A)(2), and three counts of unlawful sexual conduct with

a minor, in violation of R.C. 2907.04(A). He was acquitted after a bench trial of four

sexually violent predator specifications.

         {¶ 3} The facts underlying Zimpfer’s convictions were described in detail in our

opinion on Zimpfer’s direct appeal from his convictions.           State v. Zimpfer, 2d Dist.

Montgomery No. 26062, 2014-Ohio-4401. Stated simply, the charges stemmed from

five incidents between November 2004 and November 2009, when L.R., the complainant,

was between 13 and her eighteenth birthday. Zimpfer, his wife, and two children were

neighbors of L.R. Zimpfer’s wife, Erika, and L.R. became very close, and L.R. babysat

for the Zimpfers’ infant.      On different occasions when L.R. was babysitting at the

Zimpfers’ home, Zimpfer engaged in inappropriate sexual acts with her. These acts

included touching her breasts and vaginal area and penetrating her vagina with his

fingers, with a sex toy, and with his penis.

         {¶ 4} Zimpfer’s petition for post-conviction relief focused on the fifth incident, which

the parties refer to as “the weeding incident.” We described this incident in our opinion

on Zimpfer’s direct appeal, as follows:

                The final incident occurred when L.R. was sixteen. L.R. testified

         that at this juncture, she was getting along better with her family and had

         been going to the Zimpfer residence very sporadically. However, one day

         Erika1 sent a text message to L.R.’s father asking if L.R. could come to the


1
    The exhibits attached to Zimpfer’s petition for post-conviction relief reflect that Mrs.
                                                                                        -3-


      residence and weed the flowerbeds. L.R.’s father sent her to the Zimpfers

      at Erika’s request.

             [D.S., L.R.’s boyfriend]2 asked her not to go to the Zimpfer residence

      that day, but L.R. testified that she believed if she refused, she would arouse

      suspicion. L.R. drove her car over to the Zimpfer residence and parked

      very close to the flowerbeds. L.R. testified that she did not observe any of

      the vehicles that Zimpfer drove. Accordingly, L.R. assumed no one was

      home and she would be safe. Zimpfer, however, emerged from the house

      while L.R. was weeding, grabbed her by the arm, and pulled her into the

      house. L.R. attempted to fight him off, but Zimpfer overpowered her. He

      removed her pants, pushed her up against the sectional sofa in the living

      room, and penetrated her vagina with his penis. Thereafter, L.R. pulled

      her pants up, ran outside the house, and retrieved her phone. L.R. sent a

      text to [her boyfriend] in which she asked him to come and help her.

      Zimpfer remained in the house.

             Upon arriving at the Zimpfer residence, [L.R.’s boyfriend] located

      L.R. near the flowerbeds. [He] testified that L.R. seemed very upset and

      was acting uncharacteristically emotional.     At this point, [her boyfriend]

      went to [the] house and beat on the front door. Zimpfer did not come to the

      door, nor did he come outside while L.R. and [her boyfriend] were still there.

      L.R. finished the weeding because she did not want Erika to be suspicious


Zimpfer’s first name is spelled Erika, not Ericka, which is how we spelled it in our prior
opinion. Mrs. Zimpfer’s name is corrected to Erika throughout.
2
  In our prior opinion, we incorrectly referred to L.R.’s boyfriend as D.P.
                                                                                         -4-


         regarding why the job was not done. L.R. and [her boyfriend] eventually

         left and went back to her house.

(Footnotes added.) Zimpfer at ¶ 18-20.          Both L.R. and D.S. had testified about the

weeding incident at trial.3

         {¶ 5} During their testimony, L.R. and D.S. both indicated that they knew each

other since middle school, had dated, and had children together. L.R. testified that she

was 14 when they started dating, and she stated that her children were born in 2009

(when L.R. was 17) and 2011 (when L.R. was 19). Defense counsel did not cross-

examine D.S. about whether L.R. had represented that she was a virgin when she and

D.S. first had sex. However, the trial court had issued a pretrial ruling precluding defense

counsel from eliciting testimony regarding L.R.’s sexual activity, other than the sexual

activity between her and Zimpfer, and claims that L.R. was sexually abused by someone

other than Zimpfer. (Oct. 22, 2013 Order).

         {¶ 6} L.R. disclosed the abuse by Zimpfer to the police in August 2012, and

Zimpfer was ultimately indicted for and convicted of multiple counts of unlawful sexual

conduct with a minor and rape. The trial court sentenced Zimpfer to an aggregate

sentence of 33 years in prison. Zimpfer was also designated a Tier III sex offender/child

victim offender.

         {¶ 7} Zimpfer appealed from his convictions, claiming that the trial court erred by

admitting the expert testimony of a clinical child psychologist, who testified at trial

regarding the behavioral characteristics of children who have been sexually abused. He

also asserted that his rape convictions were based on insufficient evidence and against


3   The trial transcript is part of the record before us.
                                                                                           -5-


the manifest weight of the evidence, because the evidence did not support a finding of

force by an authority figure, and that the court erred in giving a jury instruction concerning

his status as an authority figure. Zimpfer claimed that his attorney rendered ineffective

assistance by failing to object to the admission of the psychologist’s testimony and to

the jury instruction pertaining to his status as an authority figure. Finally, Zimpfer

claimed that these cumulative errors deprived him of a fair trial.           Zimpfer did not

challenge the trial court’s order regarding the Rape Shield Law. We rejected Zimpfer’s

assignments of error and affirmed his conviction. Zimpfer, 2d Dist. Montgomery No.

26062, 2014-Ohio-4401.

       {¶ 8} On September 8, 2014, Zimpfer filed a petition for post-conviction relief,

claiming ineffective assistance of counsel. The crux of Zimpfer’s argument was that

trial counsel was allegedly made aware of information, prior to trial, that could have

been used to impeach the testimony of his wife, Erika, and the complainant, L.R., but

counsel failed “to pursue or use it.” The petition specifically alleged that counsel was

informed that Erika had been involved in two extramarital affairs and that Erika

fabricated evidence and tampered with witnesses after Zimpfer confronted her about

the affairs. Erika allegedly told Zimpfer repeatedly that she could make his “situation”

go away. The petition further raised that L.R.’s boyfriend, D.S., never mentioned the

weeding incident to Pat Tannreuther, the investigator for the Public Defender’s Office,

and that D.S. testified at trial about the weeding incident after a visit from Erika.

Zimpfer requested a hearing on his petition.

       {¶ 9} Attached to the petition were affidavits from Zimpfer and his close friend,
                                                                                       -6-


Shannon Bemis, various purported meeting notes, and copies of correspondence and

text messages. Zimpfer also stated that his current attorney had his (Zimpfer’s) cell

phone with more than 250 text messages, as well as a DVD that included Erika’s

statements concerning “making this all go away.” After a conference call, the trial

court ordered defense counsel to provide copies of the text messages and DVD to the

State and the trial court. Defense counsel complied with the court’s order in late

December 2014 and/or early January 2015. (See Doc. #15; Order Requiring State’s

Counsel to File its Memorandum In Opposition to Defendant’s Petition for Post

Conviction Relief Not Later Than Monday, January 12, 2015.)

      {¶ 10} The State filed its responsive memorandum on January 7, 2015. The

State noted that the majority of Zimpfer’s claims were that Erika was having

extramarital affairs and used the criminal justice system to manipulate friends into

making false allegations against him. The State asserted that Zimpfer’s evidence to

support these claims – multiple text messages between Zimpfer and Erika’s lover and

three voice recordings – did not substantiate Zimpfer’s allegations. The State also

argued that Zimpfer did not demonstrate that his trial counsel was ineffective for failing

to use the evidence of Erika’s affairs at trial. The State further asserted that no

ineffective assistance of counsel was demonstrated based on counsel’s failure to use

information obtained in interviews with D.S.; the State noted that the defense

investigator could not have testified about her interview with D.S. about the weeding

incident, because D.S. did not provide a prior inconsistent statement.

      {¶ 11} On January 21, 2015, the trial court conducted a hearing with counsel
                                                                                              -7-


during which the court apparently requested that defense counsel clarify in writing his

requested relief, provide the standard for granting a hearing on a petition for post-

conviction relief, and identify his proposed witnesses. The record does not contain a

transcript of this hearing, but it is referenced in the parties’ subsequent filings and the trial

court’s decision on the petition.

       {¶ 12} On January 30, 2015, Zimpfer filed a memorandum, stating the standard for

granting a hearing and indicating that his proposed witnesses were Bemis, Tina Beech,

D.S., Tannreuther, and himself (Zimpfer).

       {¶ 13} On February 17, 2015, the trial court granted Zimpfer’s request for a hearing

on his petition. In its analysis, the court indicated that Zimpfer had not met the standard

for a hearing. It reasoned that (1) strategic decisions are presumed to fall within the

range of reasonable professional assistance and there was no evidence that, even

assuming deficient performance, the outcome would have been different, (2) Zimpfer’s

affidavits relied significantly on hearsay, and (3) Zimpfer and Bemis were “unquestionably

interested in the outcome of the petition.” Nevertheless, the court granted a hearing “in

an abundance of caution.”

       {¶ 14} The hearing on Zimpfer’s petition was held on March 27, 2015. Again, no

transcript of this hearing was prepared. However, the trial court’s decision on Zimpfer’s

petition indicates that Tannreuther, Bemis, Zimpfer’s trial counsel, and Zimpfer testified

at the hearing. See Doc. #43. The trial court later summarized the issues raised as

follows:

              [A]t the March 27, 2015 Hearing and/or Defendant’s post-hearing

       briefing, Defendant and his counsel abandoned all issues raised in his
                                                                                       -8-


      Petition except for the following claims of ineffective assistance of counsel

      based upon [trial counsel’s] decisions: 1) not to pursue the theory that the

      Complaining Witness was a “virgin” when she first engaged in sexual

      intercourse with [D.S] and thus somehow perjured herself when she testified

      that Defendant raped her; 2) not to call Ms. Tannreuther or Ms. Bemis as

      witnesses at trial; 3) not to impeach [D.S]’s trial testimony regarding an

      alleged “weeding incident” during which his truck window was broken; and

      4) not to elicit testimony regarding Erika Zimpfer’s (“Mrs. Zimpfer”) alleged

      extramarital affairs that somehow would have demonstrated her bias

      against Defendant.

                The real crux of Defendant’s Petition is that, at the time the

      Complaining Witness first had sexual intercourse with her boyfriend, [D.S],

      she was a “virgin,” hymen intact, and “bled” as the result of her first sexual

      intercourse with [D.S] – a time presumably after she claims she was raped

      by Defendant. * * *

(Emphasis omitted.) The parties filed post-hearing memoranda on the issues raised at

the hearing. See Doc. #37-#39.

      {¶ 15} In June 2015, the trial court, sua sponte, ordered the Montgomery County

Public Defender to produce its entire file regarding Zimpfer’s case for in camera review

by the court.     The Public Defender’s Office complied with this order.     It is unclear

whether the documents were returned to the Public Defender’s Office; they are not part

of the record before us.

      {¶ 16} On September 10, 2015, the trial court “conducted on the record a final
                                                                                     -9-

follow-up conference with the parties’ respective counsel.”      See Doc. #43.     This

conference also was not transcribed. However, the record reflects that no testimony was

presented at this hearing. Id.

      {¶ 17} On September 14, 2015, the trial court denied Zimpfer’s petition. The

trial expressly found Tannreuther’s and trial counsel’s testimony to be credible “in all

respects.” The court further found that Bemis’s and Zimpfer’s testimony was not

credible “insofar as it would contradict Ms. Tannreuther’s and [trial counsel’s]

testimony.” The trial court’s decision indicated that it had admitted into evidence

Defense Exhibits A and B, as well as Court’s Exhibits I and II, which will be described

below; these exhibits are part of the record before us.

      {¶ 18} The trial court made the following factual findings:

             Ms. Bemis claims she conversed three times with [D.S] in

      February and March 2013.

             Ms. Bemis claims that on February 11, 2013, she individually

      spoke with [D.S] at his apartment (“February 11, 2013 Conversation”)

      from which she claims taking detailed notes of [his] responses reflecting

      her claim that [D.S] stated that the Complaining Witness told him when

      they first had sex that she was a “virgin.”     As noted above, Court’s

      Exhibit I is a “clean” copy of Ms. Bemis’ alleged notes from that first

      conversation and Defendant’s Exhibit B is a copy of the same alleged

      notes which contains certain later added interlineations and material

      which were not in her notes and were not in her hand. Rather, these
                                                                                -10-


added interlineations and material were written after trial by a third party.

         Ms. Bemis also claims that approximately one week later, she

spoke with [D.S] a second time at his apartment during which Mrs.

Zimpfer was also present.

         Then, on March 4, 2013, Ms. Tannreuther interviewed [D.S] at Ms.

Bemis’ home during which Ms. Bemis was also present (“March 4, 2013

Interview”). Ms. Tannreuther asked [him] open-ended questions about

the situation and those involved. After [D.S]’s March 4, 2013 Interview,

Ms. Tannreuther made a report and provided that report to [trial counsel].

         The Court finds, as a matter of fact, that Ms. Bemis is an

unapologetic cheerleader for Defendant, believing him incapable of

committing the acts of which he now stands convicted by a jury of his

peers.

         The Court finds, as a matter of fact, that Ms. Bemis created at

least three sets of notes relating to her conversations with [D.S]: 1) her

February 11, 2013 notes; 2) her longer, numbered paragraph set of

notes; and 3) her “random” notes. None of these notes makes any

mention that [D.S] claimed the Complaining Witness “bled” when he first

had sexual intercourse with her. The first and third sets of notes merely

claim that [D.S] stated that the Complaining Witness told him when they

first had sexual intercourse that she was a “virgin.” None of the sets of

notes makes any mention of the weeding incident to which [D.S] testified
                                                                               -11-


at trial – and why would they? – nobody questioned [D.S] regarding a

weeding incident and he volunteered nothing regarding the same.

      The Court finds, as a matter of fact, that [D.S] never told Ms.

Bemis, or anybody else for that matter, that the Complaining Witness

“bled” following their first sexual intercourse. Simply put, the Court finds

it utterly incredible that Ms. Bemis, Defendant’s advocate and champion,

would have somehow failed in any of her notes to make mention of

“bleeding” by the Complaining Witness following her first sexual

intercourse with [D.S].

      The Court finds, as a matter of fact, that Ms. Tannreuther informed

[trial counsel] that she would be unavailable on the trial date owing to

vacation plans and that she was not called as a witness owing to [trial

counsel’s] strategic decision not to call her.

      The Court finds, as a matter of fact, that [trial counsel] made a

strategic decision not to call Ms. Bemis, who would merely have

testified as to Defendant’s character as a “good person,” somehow

incapable of committing the offenses of which he has been convicted.

      The Court finds, as a matter of fact, that [trial counsel] was aware

at the time of trial that Mrs. Zimpfer and Defendant were in the process

of divorcing and that [trial counsel] knew of Mrs. Zimpfer’s alleged affair

with a North Carolina boyfriend. As a matter of fact, [trial counsel] made

a strategic decision, based upon his experience as a defense
                                                                                      -12-


      attorney who had tried similar cases, that he would not offer evidence

      of Mrs. Zimpfer’s romantic life, particularly since, as a matter of fact, at

      trial both Mrs. Zimpfer and Defendant testified they were estranged so

      that Mrs. Zimpfer’s alleged bias against Defendant was already

      established.

             Regarding Court’s Exhibit I/Defendant’s Exhibit B, the Court finds

      as a matter of fact that Ms. Bemis never provided [trial counsel] a copy

      of these notes from her February 11, 2013 conversation with [D.S]. As

      a matter of fact, however, based upon the Court’s personal review of

      the Public Defender’s file for its representation of Defendant, Ms. Bemis

      did provide [trial counsel] with a copy of her lengthy numbered

      paragraph notes and her “random” notes.

(Emphasis in original.)

      {¶ 19} In denying Zimpfer’s petition, the trial court reached the following

conclusions. First, the court held that the issue of L.R.’s sexual activity with D.S. was

barred by res judicata; the trial court had issued a pretrial order excluding testimony

or evidence of L.R.’s sexual activity other than sexual activity with Zimpfer, and that

issue had not been raised on appeal.

      {¶ 20} Second, the court held that trial counsel made objectively reasonable

decisions not to call Tannreuther or Bemis, that those decisions fell within trial

strategy, and that counsel’s decisions would not be second-guessed by the trial court

in a petition for post-conviction relief.    The court noted that Tannreuther was
                                                                                   -13-


unavailable and, even if she had been, she “never questioned [D.S.] about the alleged

weeding incident and he had offered nothing on the subject.             Further, Ms.

Tannreuther knew nothing of the ‘virginity’ issue.” The court stated that Bemis’s

testimony would have consisted of nothing more than inadmissible character

evidence.

      {¶ 21} Third, the court concluded that L.R.’s statements regarding her virginity

were barred by the trial court’s pretrial ruling, were inadmissible hearsay, and were

barred by the Rape Shield Law. The court further reasoned:

             Although Rape Shield under R.C. 2907.02(D) arguably does not

      apply to charges of unlawful sexual conduct pursuant to R.C. 2907.04,

      both the Court’s October 22, 2013 Order and Evid.R. 403(A) would have

      prevented [trial counsel] from introducing evidence regarding the

      Complaining Witness’ and [D.S.’s] sexual relationship. For example –

      no scientific evidence could support the old wives’ tale that a woman,

      when first sexually penetrated, necessarily “bleeds.” Therefore, such

      “evidence” even if otherwise admissible despite Rape Shield, would have

      been excluded pursuant to Evid. R. 403(A) as simple nonsense.

      {¶ 22} Fourth, the trial court concluded that trial counsel’s “objectively

reasonable decision not to attempt impeachment of [D.S.] regarding the alleged

weeding incident could never be ineffective assistance.” The court found that D.S.

was not questioned about the incident, by anyone, prior to trial, and D.S. had not

volunteered the information. The court stated, “[Trial counsel’s] decision to avoid
                                                                                          -14-


jousting with [D.S.] on cross examination about the matter was sound trial strategy,

especially since [D.S.] had made no prior inconsistent statements on the matter and

seasoned trial counsel do not ask questions to which they do not know the answers.”

       {¶ 23} Fifth, the trial court found that trial counsel had made an objectively

reasonable decision “not to drag Mrs. Zimpfer’s romantic life into the trial, especially

since both she and Defendant testified at trial that they were separated thereby

establishing she hardly remained enamored of her estranged husband.” The court

further reasoned that such evidence would have been inadmissible under Evid.R.

403(A) and 403(B).

       {¶ 24} Finally, the court noted that it, sua sponte, assured itself that no Brady

violation had occurred.

       {¶ 25} Zimpfer appeals from the trial court’s denial of his petition for post-

conviction relief.

            II. Post-Conviction Relief: Ineffective Assistance of Counsel

       {¶ 26} “A post[-]conviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,

639 N.E.2d 67 (1994); see also State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶ 48. To prevail on a petition for post-conviction relief, the defendant

must establish a violation of his constitutional rights which renders the judgment of

conviction void or voidable. R.C. 2953.21.

       {¶ 27} We review the trial court’s denial of a petition for an abuse of discretion.

Gondor at ¶ 52.        An abuse of discretion implies an arbitrary, unreasonable,

unconscionable attitude on the part of the trial court. State v. Hancock, 108 Ohio St.3d
                                                                                          -15-


57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 130.

       {¶ 28} Moreover, when the trial court has ruled on a petition for post-conviction

relief after a hearing, we must give deference to the trial court’s findings of fact. Gondor

at ¶ 47-48. A reviewing court should not overrule the trial court’s findings on a petition

for post-conviction relief if those findings are supported by competent and credible

evidence. Id. at ¶ 58.

       {¶ 29} Zimpfer’s petition for post-conviction relief asserted claims of ineffective

assistance of counsel. In general, we review alleged instances of ineffective assistance

of trial counsel under the two-pronged analysis set forth in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of

Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those

cases, trial counsel is entitled to a strong presumption that his or her conduct falls within

the wide range of reasonable assistance. Strickland, 466 U.S. at 688.

       {¶ 30} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the trial would have been different. See

id.; Bradley at 142. Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel’s perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v.

Rucker, 2d Dist. Montgomery No. 24340, 2012-Ohio-4860, ¶ 58.

       {¶ 31} On appeal, Zimpfer claims that the trial court erred in denying his petition
                                                                                          -16-


based on ineffective assistance of counsel. First, he asserts that the outcome of the rape

charge based on the weeding incident would have been different had trial counsel called

Tannreuther or Bemis to challenge D.S.’s testimony that the weeding incident had actually

occurred. Second, he argues that counsel should have called Bemis to testify regarding

D.S.’s out-of-court statement that L.R. had said that she was a virgin when she and D.S.

first had sex together. Zimpfer asserts that the Rape Shield Law does not bar this

statement. Finally, Zimpfer asserts that the evidence at the hearing on his petition did

not support a finding that trial counsel made objectively reasonable decisions.

       {¶ 32} At the outset, we emphasize that the record does not contain a transcript of

the hearing on Zimpfer’s petition. Under App.R. 9(B), the appellant has the duty to

provide a transcript for appellate review.       Absent a written transcript, we cannot

speculate what the testimony at the post-conviction relief hearing was, and therefore have

limited bases from which we can review any alleged legal error by the trial court. In

general, we are constrained to presume the regularity of the trial court’s proceedings and

that the evidence before the trial court supported the trial court’s judgment. Smith v.

Duran, 2d Dist. Montgomery No. 20827, 2005-Ohio-4729, ¶ 14.

       {¶ 33} With the limited record before us, we cannot conclude that the record does

not support the trial court’s finding that trial counsel made objectively reasonable

decisions. In the absence of a transcript, we do not know what trial counsel testified to

at the hearing on Zimpfer’s petition, including the rationale that he provided for failing to

call Bemis and Tannreuther to testify, to cross-examine D.S. about his sexual activity with

L.R, and to question Erika about her affairs.      The trial court expressly credited trial

counsel’s testimony, and we must presume that the evidence supported the trial court’s
                                                                                          -17-


conclusion that trial counsel’s reasons constituted reasonable trial strategy.

       {¶ 34} Even considering the limited evidence before us, we cannot conclude that

trial counsel acted deficiently. First, Bemis’s notes indicate that D.S. stated that L.R. told

him [D.S.] that she was a virgin when they first had sex, and the trial court found that trial

counsel was provided notes that contained that information. Regardless, even if trial

counsel wanted to use that information during his cross-examination of D.S., the trial court

had issued a ruling precluding defense counsel from eliciting testimony regarding L.R.’s

sexual activity, other than the sexual activity between her and Zimpfer.

       {¶ 35} At oral argument, Zimpfer’s counsel contended that the trial court’s October

22, 2013 ruling only excluded testimony or evidence of sexual activity, as opposed to the

absence of sexual activity. However, the questions about L.R.’s alleged statement would

necessarily be asked in the context of her first sexual activity with D.S., who is not the

defendant. Trial counsel cannot be faulted for complying with the trial court’s Rape

Shield ruling, regardless of the correctness of that ruling. Any argument that the trial

court erred in precluding the eliciting of such evidence was a matter for appeal.

       {¶ 36} Furthermore, any testimony by Bemis or D.S. that L.R. had reported being

a virgin when she first had sex with D.S. would be inadmissible hearsay. Trial counsel’s

failure to ask D.S. about L.R.’s statement regarding her virginity and to call Bemis

regarding D.S.’s comment to her about L.R.’s virginity does not constitute ineffective

assistance.

       {¶ 37} The trial court found that D.S. never told Bemis that L.R. had bled following

their first intercourse. With the record before us, we find nothing to cast doubt on the

trial court’s finding. We find no basis for a claim of ineffective assistance of counsel
                                                                                           -18-


based on trial counsel’s failure to use information about L.R. and D.S.’s first sexual activity

at trial.

        {¶ 38} In addition, we find nothing in the record to suggest that trial counsel acted

unreasonably in failing to cross-examine D.S. about his alleged failure to mention the

weeding incident prior to trial. Nothing in the exhibits suggests that D.S. was asked

about the weeding incident prior to trial, and we have no basis in the record to conclude

that the trial court erred in concluding that counsel made a reasonable strategic decision

“to avoid jousting with [D.S.] on cross examination about the matter.”

        {¶ 39} We find nothing in the limited record to support that Bemis and Tannreuther

had admissible testimony to offer at trial. And, we find nothing to suggest that trial

counsel acted deficiently when he failed to raise Erika’s extramarital affairs at trial.

        {¶ 40} Zimpfer’s assignment of error is overruled.

                                       III. Conclusion

        {¶ 41} The trial court’s judgment will be affirmed.

                                          .............

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Andrew French
George A. Katchmer
Hon. Steven K. Dankof
