[Cite as State v. Messenger, 2012-Ohio-2692.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-11-40

        v.

CHAD A. MESSENGER,                                       OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 10-CR-500

                                     Judgment Affirmed

                             Date of Decision: June 18, 2012




APPEARANCES:

        Robert C. Nemo for Appellant

        Brent Yager for Appellee
Case No. 9-11-40


SHAW, P.J.

      {¶1} Defendant-appellant Chad A. Messenger (“Messenger”) appeals the

August 30, 2011 judgment of the Marion County Court of Common Pleas

sentencing him to eighteen years in prison after a jury convicted him of

Kidnapping, in violation of R.C. 2905.01(A)(3), a felony of the first degree, two

counts of Rape, in violation of R.C. 2907.02(A)(2), both felonies of the first

degree, Felonious Assault, in violation of R.C. 2903.11(A)(1), a felony of the

second degree, two counts of Domestic Violence, in violation of R.C. 2919.25(A),

both felonies of the fourth degree, and two counts of Violating a Protection Order,

in violation of R.C. 2919.27(A)(1), both misdemeanors of the first degree.

      {¶2} On April 9, 2010, Messenger and Christi Messenger (“Christi”), the

victim in this case, were married. According to Christi, several months into their

marriage Messenger became abusive.

      {¶3} On September 12, 2010 the first of three incidents related to this case

occurred between Messenger and Christi. On that date Messenger came into the

bedroom he shared with Christi and a fight ensued wherein Messenger pulled

Christi’s hair and she pulled his. Messenger then pushed Christi off the bed

causing her to hit her head on either a nearby table or a bed rail. As Christi

attempted to crawl away from Messenger, Messenger took her into the living

room, placed her into a chair and told her not to move. When Messenger left the


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living room Christi ran out of the house and went to seek help from a neighbor.

As a result of this incident, Christi was awarded a Temporary Protection Order

(“TPO”) against Messenger that required Messenger to have no contact with

Christi even if she gave him consent.

         {¶4} On September 16, 2010 the second incident related to this case

occurred. On that date, Christi called the police due to Messenger repeatedly

calling her in violation of the terms of the TPO. Officer David Clemons of the

Marion Police was taking Christi’s statement when Messenger called Christi

again.     Officer Clemons got on the phone and was cussed at severely by

Messenger who was angry because another man was in the house with Christi.

Officer Clemons informed Messenger that he was a police officer and that

Messenger was in violation of the TPO.         Messenger agreed to meet Officer

Clemons at the police station fifteen minutes later but never showed up.

         {¶5} On October 5-6, 2010 the third incident related to this case occurred.

On the night of October 5, Christi and Messenger, having apparently reconciled

despite the TPO still being in effect, went together to a bar called Wild Bill’s in

Marion at approximately 8 p.m. An argument ensued as they left Wild Bill’s after

Messenger accused Christi of flirting with the bartender. When they returned to

their residence on Plymouth Street, the argument escalated to the point that

Messenger smashed Christi’s face into the floor of their home with enough force


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that she thought her jaw was broken. Afterward, Messenger forced Christi out of

the house and into the Jeep that Christi owned. As Christi fought against him,

Messenger slammed Christi’s right foot in the door of the Jeep several times.

      {¶6} Next, Messenger got into the Jeep and drove Christi out to some

property his parents owned in LaRue, Ohio. At the property in LaRue Messenger

digitally penetrated both Christi’s vaginal and anal cavities against her will.

Messenger then drove Christi to a house he and Christi had been renovating where

his Ford Explorer was parked and switched vehicles from Christi’s Jeep to his

Explorer, taking Christi with him.     Throughout the night and into the early

morning hours of October 6 Messenger drove to various places until he had to go

to work transporting mail in Delaware, Ohio.

      {¶7} When Messenger exited the Explorer at work, Christi got out and

sought assistance from one of Messenger’s coworkers, Brian Criswell. Though

Criswell offered to let Christi use his phone, he was unwilling to dial 9-1-1 for

Christi. Christi was asked to leave the area by Criswell’s supervisor so she went

to a United Dairy Farmers nearby and called 9-1-1. She was then taken to Grady

Memorial Hospital.

      {¶8} On October 14, 2010, as a result of the October 5-6, 2010 incidents,

Messenger was indicted for Kidnapping in violation of R.C. 2905.01(A)(3), a

felony of the first degree, two counts of Rape, in violation of R.C. 2907.02(A)(2),


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both felonies of the first degree, Felonious Assault, in violation of R.C.

2903.11(A)(1), a felony of the second degree, Domestic Violence, in violation of

R.C. 2919.25(A), a misdemeanor of the first degree, Violating a Protection Order

in violation of R.C. 2919.27(A)(1), a misdemeanor of the first degree, and

Disrupting Public Services in violation of R.C. 2909.04(A)(3), a felony of the

fourth degree.

        {¶9} On November 10, 2010, the State filed a supplemental indictment

related to the events of October 6, adding a charge of Domestic Violence, in

violation of R.C. 2919.25(A), a felony of the fourth degree, based on Messenger’s

prior conviction of Assault, in violation of R.C. 2903.13, a misdemeanor of the

first degree.1

        {¶10} On April 14, 2011, the State filed another supplemental indictment

charging Messenger with Domestic Violence in violation of R.C. 2919.25(A), a

felony of the fourth degree, for the September 12, 2010 incident, and another

count of Violating a Protection Order, in violation of R.C. 2919.27(A)(1), a

misdemeanor of the first degree, for the September 16, 2010 incident.

        {¶11} On August 15, 2011 the State filed a Nolle Prosequi as to the

misdemeanor Domestic Violence charge from the original indictment and as to the

Disrupting Public Services charge from the original indictment.


1
  This July 29, 2010 conviction for Assault was amended from a charge of Domestic Violence. Christi was
the victim in that case. (State’s Ex. 2).

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        {¶12} Messenger pled not guilty to all of the charges and the case

proceeded to a jury trial which was held August 15-17, 2011. The jury found

Messenger guilty on all counts, namely: Kidnapping in violation of R.C.

2905.01(A)(3), a felony of the first degree; two counts of Rape, in violation of

R.C. 2907.02(A)(2), both felonies of the first degree; Felonious Assault, in

violation of R.C. 2903.11(A)(1), a felony of the second degree; two counts of

Domestic Violence, in violation of R.C. 2919.25(A), both felonies of the fourth

degree; and two counts of violating a Protection Order in violation of R.C.

2919.27(A)(1), both misdemeanors of the first degree.

        {¶13} On August 24, 2011 the court held a sentencing hearing. On August

26, 2011, the court held a second sentencing hearing to notify Messenger of his

duties under the Adam Walsh Act. On August 30, 2011, the court filed its

Judgment Entry sentencing Messenger to 18 years in prison.2

        {¶14} It is from this judgment that Messenger appeals, asserting the

following assignments of error for our review.




2
  Messenger was sentenced to nine years in prison on the Kidnapping charge and seven years in prison on
the Felonious Assault charge with those sentences to be served concurrently. Messenger was sentenced to
eight years in prison on each Rape charge, with those sentences to be served concurrent to each other, but
consecutive to the Kidnapping/Felonious Assault sentence. The Domestic Violence charge arising out of
the October 6, 2010 incident merged with the felonious assault charge. On the Domestic Violence charge
arising out of the September 12, 2010 incident, Messenger was sentenced to one year in prison to be served
consecutive to all other charges. Messenger was sentenced to 180 days in jail on both Protection Order
Violations to be served concurrent with all of the other prison terms, creating an aggregate sentence of 18
years in prison. Messenger received credit for time served.

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                           ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ALLOWING A POLICE
       OFFICER TO GIVE OPINION EVIDENCE ON BATTERED
       WOMAN SYNDROME, NOT ONLY GENERALLY, BUT BY
       ALLOWING OPINION EVIDENCE AS IT RELATED TO
       THE ALLEGED VICTIM.

                          ASSIGNMENT OF ERROR II

       APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL AS A RESULT OF HIS
       COUNSEL’S FAILURE TO OBJECT TO NUMEROUS
       EVIDENTIARY MATTERS.

                          ASSIGNMENT OF ERROR III

       THE JURY’S GUILTY VERDICTS OF RAPE, KIDNAPPING,
       FELONIOUS ASSAULT AND DOMESTIC VIOLENCE
       WERE AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶15} In the interests of clarity, we elect to address the assignments of error

out of order.

                              Third Assignment of Error

       {¶16} In his third assignment of error, Messenger argues that his

convictions for Rape, Kidnapping, Felonious Assault and Domestic Violence were

against the manifest weight of the evidence. Specifically, Messenger argues that

testimony presented in the State’s case was not credible and that the jury clearly

lost its way in reaching its verdict.




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       {¶17} When an appellate court analyzes a conviction under the manifest

weight standard, it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the factfinder “clearly

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

must be reversed and a new trial ordered.” State v. Andrews, 3d Dist. No. 1-05-70,

2006-Ohio-3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172 (1983); State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-

Ohio-355. Only in exceptional cases, where the evidence “weighs heavily against

the conviction,” should an appellate court overturn the trial court’s judgment. Id.

       {¶18} Although the appellate court acts as a “thirteenth juror,” it still must

give due deference to the findings made by the fact-finder. State v. Thompson,

127 Ohio App.3d 511, 529 (1998). The fact-finder, being the jury, occupies a

superior position in determining credibility.      Id.   When examining witness

credibility, “[t]he choice between credible witnesses and their conflicting

testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio

St.3d 120, 123 (1986). To reverse the judgment of a trial court on the weight of

the evidence based upon a jury’s verdict, a unanimous concurrence of all three


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judges on the reviewing panel is required. Thompkins, at paragraph four of the

syllabus.

       {¶19} On appeal, Messenger contends his convictions for Kidnapping, two

counts of Rape, Felonious Assault, and two counts of Domestic Violence were

against the Manifest Weight of the Evidence. The statutes related to those charges

as indicted read:

       KIDNAPPING

       (A) No person, by force, threat, or deception, or, in the case of a
       victim under the age of thirteen or mentally incompetent, by any
       means, shall remove another from the place where the other
       person is found or restrain the liberty of the other person, for
       any of the following purposes:

       ***

       (3) To terrorize, or to inflict serious physical harm on the victim
       or another;

R.C. 2905.01(A)(3).

       RAPE

       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. 2907.02(A)(2).

       FELONIOUS ASSAULT

       (A) No person shall knowingly do either of the following:



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       (1) Cause serious physical harm to another or to another's
       unborn;

R.C. 2903.11(A)(1).

       DOMESTIC VIOLENCE

       (A) No person shall knowingly cause or attempt to cause
       physical harm to a family or household member.

R.C. 2919.25(A).

       {¶20} As the charges arose out of incidents that occurred on different dates,

we have separated the testimony and evidence presented at trial below according

to the date in which the incident took place.

September 12, 2010

       {¶21} Christi testified that on September 12, 2010 she was sitting in the

living room of the residence she shared with Messenger on Plymouth Street in

Marion playing a game on her phone while Messenger kept cussing at her so she

went into the bedroom and locked the door. (Tr. at 140). According to Christi,

Messenger then “busted” open the door and got on top of her and tried to make her

smoke a joint. (Tr. at 140). They ended up pulling each other’s hair and he

shoved her off the bed causing her to crack her head on the bed rail or on the table

beside the bed. (Tr. at 142).

       {¶22} Christi testified that she tried to crawl away but Messenger shoved

her into a chair in the living room and said “bitch, you just fucking set (sic) there


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in that chair you stupid bitch, you ain’t going nowhere.” (Tr. at 142). Christi

testified that when Messenger turned away to go into the bathroom, she took off

running toward the neighbors’ house down the street to call the cops. (Tr. at 142).

       {¶23} Christi ran to a house nearby, knocked on the door and asked to use

the phone. Kayla Lucas corroborated this in her testimony, affirming that Christi

came to her door crying and asked to use her phone. (Tr. at 361-62). Lucas

testified that she turned Christi away saying she did not have a phone. (Tr. at 361-

62). Lucas testified that though she could hear Christi crying, Lucas did not know

Christi and could not see her well so she turned her away. (Tr. at 361-62).

       {¶24} Christi testified that after being turned away by Lucas she saw

Messenger and his son Brandon leaving the house so Christi went back into her

house, retrieved her cellular phone and called the police. (Tr. at 143). Sam

Rietschlin of the Marion City Police Department responded.              (Tr. at 352).

Rietschlin testified that Christi was crying and that he took pictures of her injuries.

(Tr. at 354-55). Christi indicated to Rietschlin that some of her bruises were from

previous encounters with Messenger.         (Tr. at 355).     On cross examination

Rietschlin testified that he did not find any blood at the scene of the incident. (Tr.

at 358).

       {¶25} Messenger testified that he and Christi did get into an argument on

September 12 that resulted in them pulling each other’s hair. (Tr. at 447). He


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further testified that they got into a physical altercation “every other day or two or

three days.” (Tr. at 447). According to Messenger, after the hair pulling, he left

the premises with his son and did not return that night. (Tr. at 448). Further,

Messenger testified that during the next couple of weeks he stayed with a friend of

his until he and Christi reconciled later that month. (Tr. at 449).

        {¶26} As a result of the September 12 incident, Christi was awarded a TPO

against Messenger. Messenger testified that he was aware of the TPO. (Tr. at

449).

September 16, 2010 Incident

        {¶27} Christi testified that on September 16, 2010, Messenger repeatedly

called her in violation of the terms of the TPO using a restricted phone number.

(Tr. at 144). Christi notified the police and Officer Clemons was dispatched to

take a statement. Clemons and Christi both testified that while Clemons was

present, Messenger called again. (Tr. at 144, 365). Clemons testified that he took

the phone and a man identifying himself as Messenger was “yelling, screaming,

ranting, making accusations about there being another man in the house.” (Tr. at

365). After Clemons identified himself as an officer, Messenger agreed to meet

Clemons at the police station for violating the TPO but Messenger never showed

up. (Tr. at 367).

October 5-6, 2010


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       {¶28} Christi testified that on the night of October 5, 2010 she went to a bar

with Messenger called Wild Bill’s in Marion. (Tr. at 146). She testified that the

two got into an argument that continued when they returned home. (Tr. at 148).

Christi testified that after they returned home Messenger grabbed her and slammed

her on the floor causing her to hit the back of her head. (Tr. at 149). She testified

that Messenger then picked her up by her hair and slammed her down on her face

and jaw causing her to believe she broke her jaw. (Tr. at 149). Christi testified

that Messenger then carried her out to her Jeep against her will without any shoes

on and that Christi kicked at Messenger to try to prevent being put into the Jeep.

(Tr. at 150-51). According to Christi, Messenger repeatedly slammed the driver-

side door of the Jeep on Christi’s right foot. (Tr. at 151). Afterward Christi

testified that Messenger got into the Jeep and they traveled toward LaRue where

Messenger’s parents owned some property. (Tr. at 151).

       {¶29} Christi testified the following occurred when they arrived at the

property in LaRue.

       [Messenger] starts * * * running ruts and stuff in the cornfield
       and everything. Running around in a circle, then he slams on
       the brakes, * * * and he opens the door and he’s cussing at me
       again and he grabs a hold of me and throws me out onto the
       ground. And somehow, I don’t know how, I don’t know if my
       pants were loose or what, but my pants are like down halfway
       almost to my knees, so I’m laying there feeling butt naked and
       it’s cold and it’s dark and I’m scared to death. * * * I thought
       he was gonna like get back in the Jeep and run me over. That’s
       why I thought he threw me out. I didn’t know why. And then

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       he’s telling me ‘shut the fuck up you stupid bitch”. (sic) I told
       him no, I told him he can go burn in hell and just leave me alone.
       He’s wanting me to get back in the Jeep after that. I’m like “no,
       go away and leave me alone and I’m crying. He gets out and he
       picks me back up and I thought he was gonna just throw me
       back in the Jeep. That’s not what he done. He bent me over and
       he started jamming his fingers and his thumb and kind of – I
       think that’s all it was, I’m not sure cause I couldn’t see. He
       starts jamming them in my vagina and mainly in my anal area.
       He did it probably eight to 10 or 15 times. And it hurt bad.

       Q: Did you tell him?

       A: It hurt bad. I was trying to get him to stop and I couldn’t, I
       couldn’t, it hurt – I have never had anything like that done to me
       in my life.

       Q: Did you – I think did you ask him to stop?

       A: Yeah, I was screaming at him to stop. He wouldn’t. I was
       trying to push him off of me and I couldn’t.

(Tr. at 152-53).

       {¶30} According to Christi, Messenger then shoved her back into the Jeep

against her will, she “balled back up” and he took off again. (Tr. at 154). From

there Messenger took her to a house they had on Marsh Street in LaRue. (Tr. at

155-56). At the house on Marsh Street, Messenger told Christi that he ran the Jeep

out of gas and they had to get in his Ford Explorer. (Tr at 156). Messenger then

offered to get Christi gas, she declined saying she would not go anywhere with

him.   (Tr. at 156).   Christi testified that they remained at the Marsh Street

residence for maybe “an hour to two hours.” (Tr. at 156). Christi testified that at


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one point she tried to escape out of the window (the passenger side door was not

functional) but Messenger stopped her.         (Tr. at 156).   Christi testified that

Messenger eventually gave her the Jeep keys and said “okay bitch, here’s your

keys, fuck it, take it and go.” (Tr. at 156). From there Messenger exited the

vehicle and got into the Explorer. (Tr. at 156).

       {¶31} Christi testified that Messenger then bumped her Jeep with the

Explorer, got out of the Explorer, pulled her out of the Jeep, dragged her into the

Explorer and drove off again down a country road. (Tr. at 159). According to

Christi, while driving down the country road, Messenger called her a “whore” and

a “bitch” and Christi was “begging” him to leave her alone and to quit. (Tr. at

159). Christi testified that on one country road Messenger stopped and told her to

get out of the Explorer, which she did. (Tr. at 160). Messenger then drove off up

the road but turned back and put her back into the Explorer. (Tr. at 160).

       {¶32} Christi testified that next they drove to a Speedway to get gas and she

tried to get out but Messenger drove right through the Speedway without getting

out. (Tr at 161). From there, Christi testified that Messenger drove her around to

various locations until they ended up back in Delaware where Messenger had to

work on the morning of October 6. (Tr. at 162). Once Messenger exited the

vehicle at work, Christi testified that she got out and looked for help, running into

one of Messenger’s coworkers, Brian Criswell. (Tr. at 163).


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      {¶33} Criswell testified that when he saw Christi she had no shoes on, there

was a tear in her jeans and she had swelling on her face. (Tr. at 215). Criswell

testified that Christi tried to dial a number on his cell phone but there was a

problem and she asked him to call 9-1-1 for her.         (Tr at 223).   On cross-

examination Criswell testified that Christi only tried to dial two numbers then

asked him to dial 9-1-1. (Tr. at 223). Christi and Criswell both testified that

Criswell’s supervisor told Christi she could not be in the area and made her leave.

(Tr. at 163). Christi testified that she made her way to a nearby United Dairy

Farmers and called 9-1-1. (Tr. at 164).

      {¶34} Messenger was taken to Grady Memorial Hospital where she was

examined by Debra Virden, a Sexual Assault Nurse Examiner (“SANE”). Virden

testified that in her 25 years as a nurse, 15 as a SANE nurse, having handled

roughly 150-200 SANE examinations she had only seen perhaps four people with

injuries as extensive as Christi’s.   (Tr. at 236, 274).    Virden documented a

contusion on Christi’s face and various other red, blue, yellow and purple bruises

and abrasions on her body. (Tr. at 247). Virden observed a three centimeter red-

purplish bruise around Christi’s anal cavity and a red tear in Christi’s vaginal

cavity that was about “an eighth of an inch.” (Tr. at 247, 251). The State entered

pictures of the bruising into evidence along with the documents from Grady




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Memorial Hospital. (State’s Ex’s 15a-15n, 1). Virden testified that the injuries

she found were consistent with the story Christi told her. (Tr. at 298).

           {¶35} On cross-examination of Virden, Virden testified that she was unable

to date the vaginal tear and that the injuries could also have resulted from

consensual sex. (Tr. at 289-294). Virden further testified that the bruises were

different colors and some indicated they were several days old while others

indicated they were fresh. (Tr. at 284-286).

           {¶36} Andrew Isom of the Marion City Police Department was dispatched

to Grady Hospital to speak with Christi. (Tr. at 304). Isom observed her injuries

and took her statement. (Tr. at 308-310). Isom also took pictures which he

identified and were entered into evidence at trial. (Tr. at 311).

           {¶37} Natalie Saracco of the Bureau of Criminal Identification and

Investigation tested samples collected by Nurse Virden and testified as to the

results of samples taken. (Tr. at 327). Saracco testified that the results from the

vaginal swab identified semen and showed a presumptive positive for the presence

of blood.          (Tr. at 331).        The results from the underwear sample showed a

presumptive positive for blood, semen, and amylase.3 (Tr. at 331). The results

from the anal samples did not test presumptive positive for semen. (Tr. at 331).




3
    According to testimony at trial, amylase is a component of saliva, urine, and sweat. (Tr. at 332).

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The results from the pubic/anal area tested presumptive positive for blood and

semen. (Tr. at 332).

       {¶38} Tim Rowe, a Police Officer for the City of Marion visited the house

in Marion and testified that he found a trash can was knocked over, there were tire

tracks, and it looked as if someone left in a hurry. (Tr. at 343). Rowe did admit

on cross-examination that there were no blood stains or hair that he noticed in the

home and that he did not know how anything was knocked over. (Tr. at 345-46).

       {¶39} Bob Peterson, an investigator with the County Prosecutor’s Office,

photographed the bruising on Christi’s foot on October 13, 2010, a week after the

incident.   (Tr. at 347).     He testified to taking the photographs and those

photographs were introduced into evidence.

       {¶40} Patrolman Electa Foster went to the home of Christi and Messenger

and testified that she found the back door wide open and that she observed some

cigarette butts on the floor of the living room.       (Tr. at 380-82).     On cross-

examination Foster testified that she found no blood in any of the vehicles or at the

home. (Tr. at 408). At trial Foster identified a surveillance video from Speedway

depicting an Explorer pulling into the Speedway, pausing near the gas pumps, then

driving off seconds later without anyone getting out. (Tr. at 376). Foster also

testified at trial regarding the cycle of domestic violence. (Tr. at 371-75).




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       {¶41} After the State presented the foregoing testimony related to the

October 5-6 incident, the State rested its case. Messenger then took the stand in

his own defense, and testified that he and Christi did travel to the places as Christi

said, but he testified that he did not slam her face in the ground, he did not slam

her foot in the Jeep door, he did not digitally rape her, and he did not hold her

against her will. Messenger testified that Christi came with him willingly and he

did not hit her. Furthermore, Messenger testified to an alternative explanation as

to how Christi received her injuries.

       {¶42} According to Messenger, upon returning home from Wild Bill’s

Christi was very intoxicated and fell getting out of the Jeep hitting her jaw on the

Jeep’s tire. (Tr. at 463). Then, Messenger testified, shortly after they went inside,

they got into an argument where Messenger informed Christi that he was filing for

divorce and Christi smacked him. (Tr. at 466).

       {¶43} Messenger testified that he grabbed some clothes to leave and started

to take them out to the Jeep and while he was taking the clothes out, Christi was in

his way and walking backwards. (Tr. at 466-67). Messenger testified that she fell

backward into the recliner then into the cigarette rolling machine, landing on her

back and buttocks likely causing the bruising she had. (Tr. at 467, 504-05).

Messenger testified that during one of his trips out of the house with the clothes,

he stepped on Christi’s foot which would account for the bruising. (Tr. at 467).


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      {¶44} Messenger testified that Christi went willingly with him when he

left, and that Christi’s pants were down at the property in LaRue because she had

to urinate. (Tr. at 467-69). Messenger denied raping her and testified that they

had had consensual sex “everyday” between September 28, 2010 and October 5,

2010. (Tr. at 453). According to Messenger, he and Christi frequently had sex

including anal sex. (Tr. at 451). Furthermore, Messenger testified that Christi

wanted to engage in “weird” sexual activity that he had never done to any other

woman. (Tr. at 452). This included suffocation with a pillow. (Tr. at 452).

      {¶45} Messenger testified that after Christi urinated at the LaRue property

the two smoked crack cocaine together and then eventually left the property. (Tr.

at 470). Messenger testified that at no point was he holding Christi against her

will and that Christi simply got out of the Explorer when he went to work the next

morning. (Tr. at 480). Messenger also testified that he personally asked Criswell

to take Christi home. (Tr. at 480). Criswell corroborated that such a conversation

took place, but Criswell testified it was over the phone rather than in person. (Tr.

at 224-25).

Analysis

      {¶46} Rather than argue that there was insufficient evidence to support his

convictions, Messenger contends that the greater amount of credible evidence

weighed against his conviction. Although Messenger provides some alternate


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explanations for the incidents and injuries of Christi, there still was a significant

amount of testimony accompanied by a multitude of photographs entered into

evidence which a jury could have properly weighed in favor of Christi and thus

convicted Messenger of the charges against him beyond a reasonable doubt.

Christi’s testimony was largely corroborated by Nurse Virden or various police

officers. Though the witnesses were unable to say definitively that the injuries and

evidence occurred precisely the way Christi said they did, the witnesses did testify

that the injuries and evidence were consistent with her story. Accordingly, we

cannot find that the jury “clearly lost its way” or that Messenger’s convictions for

two counts of Rape, one count of Kidnapping, one count of Felonious Assault, and

two counts of Domestic Violence were against the manifest weight of the

evidence.

       {¶47} Appellant’s third assignment of error is overruled.

                             First Assignment of Error

       {¶48} In Messenger’s first assignment of error, he argues that the trial court

erred in allowing a police officer to give opinion evidence on battered woman’s

syndrome. Specifically Messenger contends that under the Ohio Supreme Court’s

holding in State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, the testimony of

Patrolman Electa Foster went beyond admissible testimony related to battered-




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woman’s syndrome and into the realm of impermissible opinion testimony as to

Christi’s credibility thereby warranting reversal.

       {¶49} At the outset we note that Messenger did not object to the

purportedly impermissible testimony of Foster at trial that he now argues is

prejudicial, and thus the trial court did not have the opportunity to address this

issue. Therefore, the matter will be addressed using a plain error standard. State

v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325. Plain error requires proving that,

“but for the [trial court’s] error, the outcome of the trial clearly would have been

otherwise.” (Emphasis in original.) Id. at ¶ 50 quoting State v. Long, 53 Ohio

St.2d 91, paragraph two of the syllabus.

       {¶50} At trial, after Christi had been cross-examined about getting back

together with Messenger despite the previous incidents of violence and the TPO,

the State called Patrolman Electa Foster of the Marion Police Department. Foster

worked for the Marion police department for 20 years and she spent 12 of those

years as the Violence Against Women Officer where she handled domestic

violence and sex offense investigations. (Tr. at 370). Foster testified that during

those 12 years she was involved with “thousands” of domestic violence cases and

hundreds of sexual assault cases. (Tr. at 371). Foster also testified that she had

attended 28 training sessions over those 12 years both in and out of state related to

domestic violence and sexual assault. (Tr. at 371).


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       {¶51} After covering her background, Foster provided testimony regarding

the cycle of domestic violence and testified that she heard Christi testify about

reconciling with Messenger after the earlier assault incident. (Tr. at 373-75). The

following exchange then took place between the State and Foster.

       Q: [STATE] So for example, in this case we have the June
       assault, then a September 12th domestic violence incident that’s
       before this jury that Officer Rietschlin investigated, the October
       (sic) 16th, 2010 TPO violation that’s before this jury that Officer
       Clemons investigated, and then here we have apparently
       October 6th and she’s willing to go to – apparently willing to go
       to Wild Bill’s with this guy and shoot pool. Does that make any
       sense to you?

       A: [PATROLMAN ELECTA FOSTER] It doesn’t make sense,
       but with my training that’s what I see. It’s very, very common
       in these relationships.

(Tr. at 375).

       {¶52} Messenger argues that during this exchange, Foster’s reference to

“these relationships” groups Messenger and Christi’s relationship into one of a

repeated cycle of domestic violence. Messenger contends that Foster’s testimony

goes beyond the bounds of what is permissible pursuant to Haines by stating that

Messenger was a batterer.

       {¶53} When taking the testimony of Foster in context, we find that Foster is

merely testifying to her experience as a police officer, not that she personally

believes the victim or that she is affirming that Messenger is an abuser. Foster is

simply making a broad statement that based upon her training and experience, it is

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Case No. 9-11-40


not uncommon to see people reconcile in these situations. As such, Foster’s

testimony was properly admissible based solely on her experience as a police

officer without reference to any expertise or opinion as to the “battered-woman

syndrome.” Therefore, we find that Messenger’s argument is without merit.

      {¶54} Accordingly, Messenger’s first assignment of error is overruled.

                           Second Assignment of Error

      {¶55} In Messenger’s second assignment of error, he claims that he was

denied his right to effective assistance of counsel. Specifically, Messenger claims

that his trial counsel was ineffective for failing to object to several segments of

evidence and testimony that cumulatively were prejudicial.

      {¶56} “Reversal of convictions on ineffective assistance requires the

defendant to show ‘first that counsel’s performance was deficient and, second that

the deficient performance prejudiced the defense so as to deprive the defendant of

a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751 at ¶105 quoting

Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052 (1984). When

considering a claim of ineffective assistance of counsel, the court “must indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689.

      {¶57} A tactical decision by trial counsel, who as a licensed attorney is

presumed to be competent, is not by itself enough to show ineffective assistance of


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Case No. 9-11-40


counsel simply because the strategy did not result in an acquittal. State v. Clayton,

62 Ohio St.2d 45, 48-49 (1980); State v. Timm, 3d Dist. No. 13-11-23, 2012-Ohio-

410, ¶ 31. “Furthermore, trial counsel’s failure to object is generally viewed as

trial strategy and does not establish ineffective assistance.” State v. Turks, 3d.

Dist. No. 1-08-44, 2009-Ohio-1837, ¶ 43, citing State v. McKinney, 11th Dist. No.

2007-T-0004, 2008-Ohio-3256, ¶ 191; State v. Gumm, 73 Ohio St.3d 413, 428;

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103.

       {¶58} Among some thirty arguments that Messenger raises in an attempt to

illustrate ineffective assistance of counsel the vast majority relate to decisions that

fall under “trial strategy.” As such we find that the decisions of trial counsel not

to object to specific testimony fail to establish any deficiency.

       {¶59} Examples of failure to object complained of by Messenger include:

that trial counsel erred by not objecting to testimony by Christi of a domestic

violence incident occurring June 29, 2010 not at issue in this case, that trial

counsel erred by not objecting to testimony of Christi that abuse began three

months into the marriage, that trial counsel erred by not objecting to testimony of

Christi that she thought Messenger was trying to kill her, and that trial counsel

erred by not objecting to testimony of Christi that Messenger abused her daily or

every other day.




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       {¶60} Messenger also argues that trial counsel erred by not objecting to

testimony of Christi on trial counsel’s cross-examination when Christi was

unresponsive to the questions and offered testimony such as Messenger having

charges filed against him relating to his daughters, Messenger being sent to jail,

Messenger purposely taking off the roof of the LaRue residence, Messenger

grabbing Christi and slamming her to the floor, Christi saying she was in fear of

Messenger, Christi saying Messenger would abuse her like he always did, and

Christi screaming rather than blowing the horn.

       {¶61} Messenger also complains of trial counsels’ failure to object to Nurse

Virden’s medical testimony regarding blunt force trauma, Nurse Virden’s

testimony that Christi’s bruises were consistent with Messenger holding her,

Nurse Virden’s testimony about whether the injuries could have caused serious

harm or death, Nurse Virden’s testimony of Christi’s history, Nurse Virden’s

testimony that Christi informed her there were threats of homicide, and testimony

by Nurse Virden as to the extent of the injuries relative to other cases.

       {¶62} Additionally, Messenger complains of trial counsel not objecting to

Officer Isom’s testimony that Christi’s foot injury was consistent with being

slammed in a door and that her injury was consistent with her history; Officer

Rowe’s testimony regarding tire tracks and a trash can being knocked over in the




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Case No. 9-11-40


home, and Officer Rietschlin’s testimony to injuries occurring before September

12.

       {¶63} Messenger also complains that trial counsel elected not to request a

Daubert hearing for Nurse Virden, Natalie Saracco, and Officer Foster. However,

Nurse Virden provided medical testimony helpful to Messenger in that some of the

bruises including one on the anus were older indicating potentially consensual

sexual activity as Messenger argued. Furthermore Natalie Saracco’s testimony

could arguably have been beneficial to Messenger in that it reaffirmed that

Messenger and Christi had had consensual sex so recently prior to this incident

that semen was still present. And as discussed under the first assignment of error,

Officer Foster’s testimony did not rise to any level of scientific expertise beyond

her experience as a police officer, thus providing no basis for a Daubert hearing.

       {¶64} In sum, all of the foregoing testimony was successfully utilized by

trial counsel as consistent with non-culpable explanations offered by Messenger or

as indicative of vindictive motive on the part of Christi or otherwise impeaching of

Christi’s credibility, and thus are all consistent with effective trial strategy.

       {¶65} Messenger next argues that trial counsel was ineffective for failing to

object to the State’s closing argument and the State’s rebuttal closing argument on

the basis of alleged improper references of the Prosecutor. The test regarding

prosecutorial misconduct during closing arguments is whether the remarks were


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Case No. 9-11-40


improper and, if so, whether they prejudicially affected the substantial rights of the

defendant. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 231. “In making

this determination, an appellate court should consider several factors: (1) the

nature of the remarks, (2) whether an objection was made by counsel, (3) whether

corrective instructions were given by the court, and (4) the strength of the

evidence against the defendant.” State v. Braxton, 102 Ohio App.3d 28, 41 (8th

Dist. 1995). “The touchstone of the analysis ‘is the fairness of the trial, not the

culpability of the prosecutor.’” Davis, supra, at ¶ 231 quoting Smith v. Phillips,

455 U.S. 209, 219, 102 S.Ct. 940 (1982). Prosecutorial misconduct is generally

not grounds for reversal unless it so taints the proceedings as to deprive the

defendant of a fair trial. State v. Johns, 3d. Dist. No. 13-04-23, 13-04-24, 13-04-

25, 2005-Ohio-1694, ¶ 25.

       {¶66} Messenger first claims that trial counsel was ineffective for failing to

object to a statement made by the State in closing argument regarding the events

between Messenger and Christi at the Delaware post office. The statement at issue

was made during the following section of the State’s closing argument.




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Case No. 9-11-40


       [Messenger]’s toying with her. He’s terrorizing her. He’s
       controlling her. That’s what he wants to do. “I’m in charge.
       You’ll get out when I tell you to get out. You’ll get in when I tell
       you to get in”.

       Go to the post office, unfortunately they don’t have any video, we
       checked. Officer Foster checked, but we didn’t have it. But then
       he leaves in the truck and they go to Speedway. And what did
       she tell them? What did she tell them the very next day within
       two hours from making the 9-1-1 call? “He went through
       Speedway and he was gonna stop and I saw him start to get out
       so I tried to get out, he saw it and grabbed me and we took off
       again.”

       **

       The video, State’s Exhibit 8, of Speedway further corroborates
       what she had to say. She told it right away and it corroborates
       it.

(Emphasis Added.) (Tr. at 561-62).

       {¶67} Messenger specifically objects to the italicized portion of the closing

argument claiming, correctly, that Officer Foster never testified to checking for

video of Christi and Messenger at the post office. The State’s comment at issue

came in the context of describing how various pieces of evidence were consistent

with Christi’s version of events. The State mentioned how it did not have video of

the post office but stated that it did have video from Speedway that was consistent

with Christi’s story of what occurred at the Speedway. The Speedway video was

identified by Officer Foster. No testimony was ever given that Officer Foster

checked for video of anything that occurred at the post office.


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Case No. 9-11-40


       {¶68} While we find that the specific comment in question was indeed

improper as Officer Foster never testified that she checked for video at the post

office, we do not find that this statement so “tainted” the trial as to merit reversal.

A reference in passing to evidence that the State admits does not exist, without

more, is insufficient to satisfy the standards above for prosecutorial misconduct.

Furthermore, as the reference is insufficient to show prosecutorial misconduct, it is

insufficient to establish ineffective assistance of counsel due to Messenger’s

inability to establish prejudice.

       {¶69} Messenger next argues that his trial counsel was ineffective for

failing to object to an inappropriate comment made by the State in the State’s

rebuttal closing argument. In Messenger’s closing argument he raised the point

that there was no blood located in either of the vehicles that Christi and Messenger

were in on the night of October 5-6, 2010 and that there was no blood located in

the home where the violence began. (Tr. at 582-83). Then, in the State’s rebuttal

closing argument, the State made the following statement.

       Well, as you saw most of the injuries are blunt force from
       bruising and so forth. They’re just not cuts. However, there
       was blood found on the underwear. There was blood found in
       the vagina. * * * And I would submit to you that abusers many
       times don’t want to leave injuries readily seen or cuts like that.
       Even though with her he’s still again, look at the pictures, look
       at the different times of the pictures and look at all the bruising.




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Case No. 9-11-40


(Emphasis added.) (Tr. at 592). Messenger specifically objects to the italicized

comment, arguing that no such evidence was presented at trial as to the pattern of

conduct of abusers and that any opinion by the prosecutor concerning such

evidence was objectionable.

      {¶70} Based upon the context of the italicized statement at issue and the

evidence produced at trial discussed at length above, we find this statement of the

Prosecutor during his rebuttal closing argument to be more in the nature of an

argument made in response to an argument raised by defense counsel, rather than

an improper assertion of fact not based upon evidence.         Nevertheless, even

assuming arguendo the comment was improper, we do not find that it so tainted

the trial as to merit reversal or that failure of counsel to object prejudiced

Messenger sufficiently to establish a valid claim of ineffective assistance of

counsel.

      {¶71} As a final aspect of Messenger’s claim for ineffective assistance of

counsel, he argues that all of the above matters constitute, in the aggregate,

support for a cumulative finding of ineffective assistance of trial counsel.

However, since we have found no prejudicial ineffective assistance of counsel on

any of the instances, a cumulative argument is not supported.         Accordingly

Messenger’s second assignment of error is overruled.




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       {¶72} For the foregoing reasons, Messenger’s assignments of error are

overruled and the judgment of the trial court is affirmed.

                                                             Judgment Affirmed

WILLAMOWSKI, J., concurs.
ROGERS, J., concurs in Judgment Only.

/jlr




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