[Cite as State v. Lindsay, 2011-Ohio-4747.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2010-CA-0134
WENDELL R. LINDSAY, II.                        :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No. 2010-
                                                   CR-0419D

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            September 19, 2011

APPEARANCES:



For Plaintiff-Appellee                             For Defendant-Appellant

JAMES J. MAYER                                     CHARLES M. BROWN
Richland County Prosecutor                         76 North Mulberry Street
38 South Park Street                               Mansfield, OH 44902
Mansfield, OH 44902
[Cite as State v. Lindsay, 2011-Ohio-4747.]


Gwin, P.J.

        {¶1}     Defendant-appellant Wendell R. Lindsay, II appeals from his convictions

and sentences in the Richland County Court of Common Pleas on one count of raping a

minor (R.C. 2907.02(A) (1) (b)), one count of gross sexual imposition (R.C. 2907.05(A)

(4)), and one count of sexual battery (R.C. 2907.03(A)(5). Plaintiff-appellee is the State

of Ohio.

                            STATEMENT OF THE CASE AND FACTS

        {¶2}     On March 4, 2010, ten-year-old N.J. approached her guidance counselor

at school and told her "my mother's boyfriend has been raping me." (T. 197). During the

investigation into the sexual assault, N.J. disclosed that her mother's boyfriend,

appellant, had come into the room that she shared with her younger sister on the

morning of March 4th, pulled down her underwear and stuck his tongue in her vagina.

(T. at 198; 269). This was not the first time a sexual incident had occurred. All in all, N.J.

told the social worker who interviewed her that the appellant had placed his mouth on

her vagina approximately six times and penetrated her vagina with his penis a total of

seven times. (T. at 271).

        {¶3}     After the disclosures, N.J.'s father took her to the hospital for a sexual

assault examination. The nurse who performed the exam found physical evidence

consistent with N.J.'s allegations. As part of the examination, swabs were taken of the

victim's vaginal area and the panties she was wearing at the time of the examination

were collected. DNA collected from the panties and the vaginal area of N.J. was

consistent with the appellant's DNA.
Richland County, Case No. 2010-CA-0134                                                                3


        {¶4}     Appellant was indicted by the Richland County Grand Jury with 5 separate

counts of rape, 5 separate counts of sexual battery, and 5 separate counts of gross

sexual imposition.

        {¶5}     Following the jury trial, appellant was convicted of one count of rape, one

count of sexual battery and one count of gross sexual imposition. The jury returned

verdicts of not guilty to the remaining charges.

        {¶6}     A sentencing hearing was held on October 27, 2010. The trial court

merged the offenses for sentencing purposes and sentenced appellant to a term of ten

years to life.

        {¶7}     Appellant timely appeals, setting forth the following assignments of error1:

        {¶8}     “I.   THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND

DEPRIVED THE DEFENDANT-APPELLANT OF HIS EQUAL PROTECTION RIGHTS

UNDER       THE        FOURTEENTH          AMENDMENT            OF     THE      UNITED       STATES

CONSTITUTION BY UPHOLDING THE PEREMPTORY CHALLENGES OF THE

PROSECUTOR AGAINST TWO BLACK JURORS.

        {¶9}     “II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND

DEPRIVED THE DEFENDANT-APPELLANT UNDER HIS DUE PROCESS RIGHTS

UNDER       1     HE    FOURTEENTH           AMENDMENT           OF     THE     UNITED       STATES

CONSTITUTION AND HIS SIXTH AMENDMENT RIGHTS OF THE UNITED STATES

CONSTITUTION BY DENYING DEFENDANT-APPELLANT TO CHANGE COUNSEL


        1
          We note that Mr. Lindsay filed a pro se “Amendment to Defendant-Appellant’s Appeal Brief on
June 13, 2011. He did not request and was not granted leave to file a pro se brief. This brief was filed
after the State had filed its brief. Appellant’s pro se brief does not show a proper Proof of Service as
mandated by App. R. 13. Accordingly, the State had no opportunity to reply to appellant’s pro se brief.
Additionally, Ohio law prohibits a defendant and his appointed counsel from acting as “co-counsel” See,
State v. Martin, 103 Ohio St.3d 385, 816 N.E.2d 227, 2004-Ohio-5471. Accordingly, we will not address
appellant’s pro se arguments in the disposition of this appeal.
Richland County, Case No. 2010-CA-0134                                4


DURING THE TRIAL AND TO HAVE THE JUDGE RECUSE HIMSELF IN VIOLATION

OF THE DEFENDANT-APPELLANT'S SIXTH AMENDMENT RIGHT TO COUNSEL

AND THE FOURTEENTH AMENDMENT DUE PROCESS.

      {¶10} “III. THE TRIAL COURT ERRED IN FAILURE TO CONTINUE THE TRIAL

BASED UPON THE REQUEST OF THE DEFENDANT-APPELLANT'S ATTORNEY.

      {¶11} “IV. THE DEFENDANT-APPELLANT WAS DENIED HIS RIGHTS TO

DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND OHIO

CONSTITUTION BY RECEIVING INTO EVIDENCE REGARDING DOMESTIC

VIOLENCE AND ADULTERY REPORTEDLY COMMITTED BY THE DEFENDANT-

APPELLANT.

      {¶12} “V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

FAILING TO EXCLUDE OUT-OF-COURT STATEMENTS MADE BY THE ALLEGED

VICTIM   BEING   INTRODUCED      THROUGH   THE   TESTIMONY   OF   OTHER

WITNESSES, IN VIOLATION OF EVIDENCE RULE 802 AND THE DEFENDANT-

APPELLANT'S RIGHT IS GUARANTEED TO HIM BY THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

      {¶13} “VI. DEFENDANT-APPELLANT WAS DEPRIVED OF EFFECTIVE

ASSISTANCE OF COUNSEL BY THE SIXTH AMENDMENT OF THE UNITED

STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION,

AS WELL AS THE DUE PROCESS PROTECTION UNDER THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ARTICLE I,

SECTION 16 OF THE OHIO CONSTITUTION.”
Richland County, Case No. 2010-CA-0134                                                5


                                               I.

       {¶14} During voir dire, appellant raised two Batson objections regarding the

State's use of peremptory challenges against two African-American jurors. In his First

Assignment of Error appellant argues that the State failed to provide race-neutral

reasons for the challenges.

       {¶15} A defendant is denied equal protection of the law guaranteed to him by the

Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the

Ohio Constitution when the state places the defendant on trial before a jury from which

members of the defendant’s race have been purposely excluded.           Strauder v. W.

Virginia (1880), 100 U.S. 303, 305; State v. Hernandez (1992), 63 Ohio St. 3d 577;

State v. Bryant (1995), 104 Ohio App. 3d 512, 516. The “equal protection clause forbids

a prosecutor from challenging potential jurors solely on account of their race or on the

assumption that jurors of the same race as the defendant will be unable to impartially

consider the state’s case against the defendant.” State v. Bryant, supra, 104 Ohio App.

3d 516; Batson v. Kentucky (1986), 476 U.S. 79, 89, 106 S.Ct. 1712.

       {¶16} Whenever a party opposes a peremptory challenge by claiming racial

discrimination “[a] judge should make clear, on the record, that he or she understands

and has applied the precise Batson test when racial discrimination has been alleged in

opposition to a peremptory challenge.” Hicks v. Westinghouse Materials Co., 78 Ohio

St.3d 95, 99, 676 N.E.2d 872, 1997-Ohio-227.

       {¶17} In Hicks, supra, the Ohio Supreme Court set forth the Batson test as

follows:
Richland County, Case No. 2010-CA-0134                                                   6

      {¶18} “The United States Supreme Court set forth in Batson the test to be used

in determining whether a peremptory strike is racially motivated. First, a party opposing

a peremptory challenge must demonstrate a prima-facie case of racial discrimination in

the use of the strike. Id. at 96, 106 S. Ct. at 1723, 90 L. Ed. 2d at 87. To establish a

prima-facie case, a litigant must show he or she is a member of a cognizable racial

group and that the peremptory challenge will remove a member of the litigant’s race

from the venire. The peremptory-challenge opponent is entitled to rely on the fact that

the strike is an inherently ‘discriminating’ device, permitting ‘those to discriminate who

are of a mind to discriminate’. State v. Hernandez (1992), 63 Ohio St. 3d 577, 582, 589

N.E. 2d 1310, 1313, certiorari denied (1992), 506 U.S. 898, 113 S. Ct. 279, 121 L. Ed.

2d 206. The litigant must then show an inference of racial discrimination by the striking

party. The trial court should consider all relevant circumstances in determining whether

a prima-facie case exists, including all statements by counsel exercising the peremptory

challenge, counsel’s questions during voir dire, and whether a pattern of strikes against

minority venire members is present. See, Batson at 96-97, 106 S. Ct. at 1723, 90 L. Ed.

2d at 88. Assuming a prima-facie case exists, the striking party must then articulate a

race-neutral explanation ‘related to the particular case to be tried.’ Id at 95, 106 S. Ct.

at 1724, 90 L.Ed. 2d at 88. A simple affirmation of general good faith will not suffice.

However, the explanation ‘need not rise to the level justifying exercise of a challenge for

cause.’ Id. at 97, 106 S. Ct. at 723, 90 L. Ed. 2d at 88. The critical issue is whether a

discriminatory intent is inherent in counsel’s explanation for use of the strike; intent is

present if the explanation is merely pretext for exclusion on the basis of race.

Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S. Ct. 1859, 1868, 114 L. Ed.
Richland County, Case No. 2010-CA-0134                                                    7

2d 395, 409. 78 Ohio St. 3d. 98-9. See also, State v. Bulin, Stark App. No. 2008-CA-

00045, 2008-Ohio-5691.

       {¶19} Although the prosecutor must present a comprehensible reason, “[t]he

second step of this process does not demand an explanation that is persuasive or even

plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v.

Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769. (per curiam); Rice v. Collins

(2006), 546 U.S. 333, 126 S.Ct. 969, 973-74.

       {¶20} Lastly the trial court must determine whether the party opposing the

peremptory strike has proved purposeful discrimination. Purkett v. Elem (1995), 514

U.S. 765, 766-767, 115 S. Ct. 1769, 1770. It is at this stage that the persuasiveness,

and credibility, of the justification offered by the striking party becomes relevant. Id. at

768, 115 S. Ct. at 1771. The critical question, which the trial judge must resolve, is

whether counsel’s race-neutral explanation should be believed.         Hernandez v. New

York, 500 U.S. at 365, 111 S. Ct. at 1869; State v. Nash (August 14, 1995), Stark

County Court of Appeals, Case No. 1995 CA 00024. This final step involves evaluating

“the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate

burden of persuasion regarding racial motivation rests with, and never shifts from, the

opponent of the strike.” Purkett, supra, at 768, 115 S.Ct. 1769; Rice v. Collins, supra at

126 S.Ct. 974.

       {¶21} It is irrelevant how many minority jurors remain on the panel if even one is

excluded on the basis of race. State v. Bryant, supra, 104 Ohio App. 3d 512; State v.

Tuck 80 Ohio App 3d 721, 724 (Batson, applicable even if there is only one African-
Richland County, Case No. 2010-CA-0134                                                       8

American juror on the panel); Jones v. Ryan (C.A. 3, 1993), 987 F. 2d 960, 972; United

States v. David (C.A. 11, 1986), 803 F. 2d 1567.

       {¶22} On direct appeal in federal court, the credibility findings a trial court makes

in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U.S. 352,

364-366, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (holding that

evaluation of a prosecutor's credibility “lies ‘peculiarly within a trial judge's province’ ”).

Rice v. Collins, supra at 126 S.Ct. 974; State v. Bulin, supra.

       {¶23} In the case at bar, appellant’s trial counsel stated he was making a Batson

objection concerning Juror Tate and Juror Beard; he did not offer any further

explanation to make his prima facie case as required in the first step of Batson. He did

not refer to any statements made by the prosecutor that would indicate that the

challenge was discriminatory, did not point to a pattern of discrimination and did not

point to specific questions in voir dire that would indicate a discriminatory motive.

       {¶24} Moreover, even though the appellant had not met his prima facie burden

to go forward on the challenge the prosecutor voluntarily explained his reasons for the

peremptory strike. Hicks v. Westinghouse, supra, 78 Ohio St. 3d at 100, 676 N.E.

2d 872; State v. Hernandez, supra, 63 Ohio St.3d at 583, 589 N.E.2d 1310; Hernandez

v. New York, supra; State v. Nash, supra.

       {¶25} With respect to Juror Tate the prosecutor stated:

       {¶26} “Judge, she has a criminal history. She failed to disclose that criminal

history on the questionnaire despite the admonition on the questionnaire, not being

honest, she could be held in contempt. She answered yes to having a boyfriend in jail,
Richland County, Case No. 2010-CA-0134                                                      9


she went down and put money on the books. All of those factors make me think she's

not a good juror for the State." (1T. at 124).

       {¶27} With respect to Juror Beard, the prosecutor stated:

       {¶28} “Same reason, Judge, on his questionnaire he indicated that no, he did

not have family members as a defendant, and despite the admonition to be honest,

turns out his son is in the County jail, and he says his son has been a frequent offender,

and he can't explain why he answered in the negative to that question. All of those lead

me to the conclusion that he's either not attentive or is being deceptive. Either way it's

not a jury the State wishes to have." (1T. at 125).

       {¶29} “The trial judge is best placed to consider the factors that underlie

credibility: demeanor, context, and atmosphere. And the trial judge is best placed to

determine whether, in a borderline case, a prosecutor's hesitation or contradiction

reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive

decision. Appellate judges cannot on the basis of a cold record easily second-guess a

trial judge's decision about likely motivation. These circumstances mean that appellate

courts will, and must, grant the trial courts considerable leeway in applying Batson.”

Rice v. Collins, supra at 126 S.Ct. at 977. (Breyer, J., concurring).

       {¶30} Appellant offered no factually specific argument to the trial court or in his

brief to this Court to prove that the peremptory strikes were purposefully discriminatory.

Purkett v. Elem (1995), 514 U.S. 765, 766-767, 115 S.Ct. 1769, 1770. We do not find

that the dismissal of Juror Tate and Beard was clearly erroneous. We find that the

reason provided by the prosecutor prior to exercising a peremptory challenge to excuse

Juror Tate and Juror Beard was racially neutral.
Richland County, Case No. 2010-CA-0134                                                    10


       {¶31} Appellant’s First Assignment of Error is overruled.

                                                 II.

       {¶32} In his Second Assignment of Error appellant contends that the trial court

abused its discretion by overruling his request for new counsel. Further, appellant

contends the trial judge erred by failing to recuse himself from appellant’s case. We

disagree with both of appellant’s arguments.

       A. Motion to Discharge Counsel.

       {¶33} Several times throughout the trial, appellant attempted to request new trial

counsel. Appellant insisted that trial counsel was ineffective and that he was not happy

with his representation. Appellant denied that he had seen any of the evidence except

for the forensics and had never seen the witness lists. (T. at 274). Appellant further

objected to the defense that was presented, "I think there is not an affirmative defense

here. I don't have a defense. I don't have a leg to stand on here. I mean, I have three

witnesses that I attempted - not witnesses, but people that I would like to call to the

stand." (T. at 528). Appellant claims that his attorney failed to call his witnesses for him.

(Id). The three witnesses that appellant wanted to call were Khianti James, Pat Smith

and Dan Myers, his probation officer. (T. at 573). Finally, appellant objected to counsel’s

alleged failure to subpoena his phone records to substantiate some of the claims he

argued during cross examination. (T. at 570).

       {¶34} The right to competent counsel does not require that a criminal defendant

develop and share a "meaningful relationship" with his attorney. Morris v. Slappy

(1983), 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610; State v. Blankenship
Richland County, Case No. 2010-CA-0134                                                  11

(1995), 102 Ohio App.3d 534, 657 N.E.2d 559; State v. Burroughs, 5th Dist. No.

04CAC03018, 2004-Ohio-4769 at ¶ 11.

       {¶35} In the context of reviewing a claim by the defendant that the trial court

abused its discretion by overruling the defendant’s request to discharge court appointed

counsel and to substitute new counsel for the defendant the courts have taken the

approach that the defendant must show a complete breakdown in communication in

order to warrant a reversal of the trial court’s decision. In State v. Cowans (1999), 87

Ohio St.3d 68, 1999-Ohio-250, 717 N.E.2d 298 the Court noted: “[e]ven if counsel had

explored plea options based on a belief that Cowans might be guilty, counsel's belief in

their client's guilt is not good cause for substitution. “‘A lawyer has a duty to give the

accused an honest appraisal of his case. * * * Counsel has a duty to be candid; he has

no duty to be optimistic when the facts do not warrant optimism.' " Brown v. United

States (C.A.D.C.1959), 264 F.2d 363, 369 (en banc), quoted in McKee v. Harris (C.A.2,

1981), 649 F.2d 927, 932. “‘If the rule were otherwise, appointed counsel could be

replaced for doing little more than giving their clients honest advice.' " McKee, 649 F.2d

at 932, quoting McKee v. Harris (S.D.N.Y.1980), 485 F.Supp. 866, 869.” Id. at 73, 717

N.E.2d at 304-305.

       {¶36} In a similar vein it has been held that hostility, tension, or personal

conflicts between an attorney and a client that do not interfere with the preparation or

presentation of a competent defense are insufficient to justify a change in appointed

counsel. See State v. Henness (1997), 79 Ohio St.3d 53, 65-66, 679 N.E.2d 686.

Furthermore, "[m]erely because appointed counsel's trial tactics or approach may vary

from that which appellant views as prudent is not sufficient to warrant the substitution of
Richland County, Case No. 2010-CA-0134                                                                12

counsel." State v. Glasure (1999), 132 Ohio App.3d 227, 239, 724 N.E.2d 1165; State

v. Evans(2003), 153 Ohio App.3d 226, 235-36, 2003-Ohio-3475 at ¶31, 792 N.E.2d

757,764; State v. Newland, 4th Dist. No. 02CA2666, 2003-Ohio-3230 at ¶11.

       {¶37} A defendant has no constitutional right to determine trial tactics and

strategy of counsel. State v. Cowans (1999), 87 Ohio St.3d 68, 72, 717 N.E.2d 298;

State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150; State v.

Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557 at ¶ 183. Rather,

decisions about viable defenses are the exclusive domain of defense counsel after

consulting with the defendant. Id . When there is no demonstration that counsel failed to

research the facts or the law or that counsel was ignorant of a crucial defense, a

reviewing court defers to counsel's judgment in the matter. State v. Clayton (1980), 62

Ohio St.2d 45, 49, 402 N.E.2d 1189, citing People v. Miller (1972), 7 Cal.3d 562, 573-

574, 102 Cal.Rptr. 841, 498 P.2d 1089; State v. Wiley, 10th Dist. No. 03AP-340, 2004-

Ohio-1008 at ¶ 21.

       {¶38} Appellant has not established that such a breakdown occurred. Indeed,

our review of the record indicates appellant's counsel was thoroughly prepared.

Appellant's counsel indicated that he and appellant had reviewed several motions that

were prepared by appellant. They discussed the content of the motions and trial counsel

discussed the issues with him and expressed the belief that the motions did not have

merit. (T. at 142). In this regard we find useful cases in which a defendant has alleged

that he received ineffective assistance of counsel during trial.2

       {¶39} The Ohio Supreme Court has recognized that if counsel, for strategic

reasons, decides not to pursue every possible trial strategy, defendant is not denied
       2
           Appellant has raised ineffective assistance of counsel as Assignment of Error VI, infra.
Richland County, Case No. 2010-CA-0134                                                    13

effective assistance of counsel. State v. Brown (1988), 38 Ohio St.3d 305, 319, 528

N.E.2d 523. When there is no demonstration that counsel failed to research the facts or

the law or that counsel was ignorant of a crucial defense, a reviewing court defers to

counsel's judgment in the matter. State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402

N.E.2d 1189, citing People v. Miller (1972), 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841,

498 P.2d 1089; State v. Wiley, 10th Dist. No. 03AP-340, 2004-Ohio-1008 at ¶ 21.

"Debatable trial tactics do not establish ineffective assistance of counsel." State v.

Hoffner (2004), 102 Ohio St.3d 358, 365, 2004-Ohio-3430, ¶ 45.

       {¶40} Counsel’s decision not to subpoena appellant’s cellular phone records

may have been such a decision. The jury heard both sides of the argument during trial;

they chose to believe the state’s witnesses rather than appellant. There is nothing in the

record to show the jury would have found the appellant not guilty had the phone records

been introduced during trial. State v. Benge, 75 Ohio St.3d 136, 141, 1996-Ohio-227.

       {¶41} Further, appellant was not prevented from presenting witnesses. Khianti

James and Patrice Smith both testified at trial and the court offered appellant the

chance to call Dan Myers if he wanted to, however, the appellant declined. (T. at 595).

Appellant did not proffer what evidence he believes Mr. Myers would have presented

that would aid in his defense, if he were called.

       {¶42} Appellant was aware that the victim's grandmother, Charlene Thomas,

was on the witness list and that she had once been a bailiff to the trial court. (T. at 143).

Appellant used this information to make the argument for a change of venue.

Appellant's counsel admitted that appellant was aware that the victim's grandmother

was a witness in this case. (T. at 394-395).
Richland County, Case No. 2010-CA-0134                                                   14


       {¶43} Appellant has failed to establish a breakdown in attorney-client

relationship of such magnitude as to jeopardize defendant's right to effective assistance

of counsel. State v. Coleman (1988), 37 Ohio St.3d 286, 292, 525 N.E.2d 782, 798-99.

       {¶44} B. Recusal.

       {¶45} Appellant further objected to Judge DeWeese presiding over the trial and

requested that he recuse himself. Appellant's stated reason for the objection was that

the victim's grandmother was a retired bailiff from Judge DeWeese's court

       {¶46} R.C. 2701.03 which is cited by appellee governs the disqualification of a

judge of the court of common pleas. R.C. 2701.03 allows a party to file an affidavit of

disqualification with the Ohio Supreme Court when a common pleas court judge is

allegedly biased against a party or counsel. The filing of the affidavit of disqualification

precludes the trial judge from conducting any further proceedings until the Chief Justice

rules on the affidavit. R.C. 2701.03(D)(1)

       {¶47} R.C. 2701.03 provides the exclusive means for determining whether a trial

judge is biased, prejudiced, or is otherwise disqualified from presiding over a case.

Jones v. Billingham (1995), 105 Ohio App. 3d 8, 11; See also, State v. Demastry, 155

Ohio App.3d 110, 799 N.E.2d 229, 2003-Ohio-5588 at ¶79; State v. Gainer,

Tuscarawas App. No. 2002AP10092, 2003-Ohio-5020 at ¶14. Disqualification

proceedings are not initiated in the court of appeals and are not subject to review by the

court of appeals. Beer v. Griffith (1978), 54 Ohio St.2d 440, 440, 377 N.E.2d 775.

       {¶48} Appellant did not utilize the procedure for disqualification mandated by

R.C. 2701.03. Appellant's claim is not properly before this court and is not demonstrated

by the record. State v. Brack, Stark App.No. 2010CA00061, 2011-Ohio-2949 at ¶75.
Richland County, Case No. 2010-CA-0134                                                  15


       {¶49} For the foregoing reasons, appellant’s Second Assignment of Error is

overruled in its entirety.

                                                III.

       {¶50} Appellant argues in his Third Assignment of Error that the trial court

violated his Due Process rights by not allowing a continuance of the trial after the State

provided a Bill of Particulars two days before the trial. Appellant claims that the Bill of

Particulars included new information, in the form of two new addresses where offenses

were alleged to have occurred and differing offense dates, and as such, appellant was

prejudiced in preparing for trial.

       {¶51} In making the motion, appellant’s counsel stated that he was aware “that

these incidents occurred at 425 Beryl Avenue.” (1T. at 5-6). Counsel stated that he

thought all the incidents occurred at the Beryl Avenue address. (Id. at 8). Counsel’s

objection centered upon two other addresses disclosed in the Bill of Particulars. (Id. at

7). Appellant’s counsel admitted that the time frame was included in the original

indictment. (Id. at 7-8). The time frame was the same in the Bill of Particulars.

       {¶52} In the case at bar, appellant was convicted on Counts Five, Ten and

Fifteen of the Indictment. The jury found appellant not guilty of Counts One through

Four and Counts Eleven through Fourteen. The Counts upon which the jury found

appellant guilty were all alleged in the original indictment to have occurred at the 425

Beryl Avenue address.

       {¶53} We must be mindful of the “ * * * elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show

some error but must also show that that error was prejudicial to him.” See Smith v.
Richland County, Case No. 2010-CA-0134                                                 16

Flesher ( 1967), 12 Ohio St. 2d 107, 233 N.E. 2d 137; State v. Stanton (1968), 15 Ohio

St.2d 215, 217, 239 N.E.2d 92,94; Wachovia Mtg. Corp. v. Aleshire, Licking App. No. 09

CA 4, 2009-Ohio-5097 at ¶16. See, also, App.R. 12(D).

       {¶54} There is no showing in the record that the trial court erred by denying the

continuance because appellant was found not guilty of the offenses that were alleged to

have occurred at addresses other the Beryl Avenue address.

       {¶55} Appellant’s Third Assignment of Error is overruled.

                                                  IV.

       {¶56} In his Fourth Assignment of Error appellant contends that his due process

rights were violated because the court allowed testimony to be presented regarding the

abusive and violent relationship between himself and the victim's mother and regarding

an affair he was having with another woman.

       {¶57} Khianti James testified that she and appellant had an abusive relationship.

(T. at 219-221). The State proffered that the testimony regarding the violent relationship

was relevant in demonstrating to the jury that the victim lived in an environment where

the victim did not feel able to tell her mother about the sexual abuse that appellant was

subjecting her to. (T. at 220). The court allowed the testimony as long as it was close in

time frame to the alleged abuse; otherwise the evidence would be excluded as

irrelevant. Id. Ms. James also testified that she did not believe that appellant had been

faithful to her throughout their relationship. (T. at 229).

       {¶58} Detective Jeff Shook testified and was asked concerning the appellant's

record. (T. at 364- 365). Appellant’s objection was overruled. (Id. at 365). Thereafter,

Detective Shook testified,
Richland County, Case No. 2010-CA-0134                                                17


      {¶59} "Q. What did your research consist of?

      {¶60} “A. Looking at our records data base seeing if there was any reported

domestic assault situations that involved Mr. Lindsay and Ms. James.

      {¶61} “Q.      Did you find any?"

      {¶62} “* * *

      {¶63} “A.      Yes, I found numerous."

      {¶64} Patrice Smith, Richland County Sheriff’s Deputy, testified that she is

Khianti James’ sister. She testified that she responded to a call on Needham Road

regarding a domestic situation. The gist of that call was that appellant was alleged to

have been involved with a married woman, and the husband had come home, found

them together and an argument had ensued. This incident occurred in December 2009.

Ms. Smith was asked by the prosecutor:

      {¶65} “"Q. Well, and her boyfriend is out catting around with some married

woman, that's something you could tell your sister about?"

      {¶66} “A. Absolutely. Yes, sir." (T. at 323).

      {¶67} Initially, we note that the decision to admit or exclude relevant evidence is

within the sound discretion of the trial court. State v. Bey (1999), 85 Ohio St.3d 487,

490, 709 N.E.2d 484, 490. The trial court's decision to admit or exclude relevant

evidence cannot be reversed absent an abuse of that discretion. See, e.g., State v.

Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071; State v. Sage (1987), 31 Ohio

St.3d 173, 510 N.E.2d 343; State v. Rooker (Apr. 15, 1993), Pike App. No. 483,

unreported. The term “abuse of discretion” implies more than an error of law or

judgment. Rather, the term suggests that the trial court acted in an unreasonable,
Richland County, Case No. 2010-CA-0134                                                    18

arbitrary, or unconscionable manner. See, e.g., State v. Xie (1992), 62 Ohio St.3d 521,

584 N.E.2d 715; State v. Montgomery (1991), 61 Ohio St.3d 410, 575 N.E.2d 167.

Furthermore, when applying the abuse of discretion standard, a reviewing court is not

free to merely substitute its judgment for that of the trial court. In re: Jane Doe 1 (1991),

57 Ohio St.3d 135, 566 N.E.2d 1181 (citing Berk v. Matthews (1990), 53 Ohio St.3d

161, 359 N.E .2d 1301).

       {¶68} Evid.R. 404 sets forth a general bar against the use of character evidence.

Of importance to the case sub judice, Evid.R. 404(B) provides as follows:

       {¶69} “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence or mistake or accident.”

       {¶70} The admissibility of other acts evidence is carefully limited because of the

substantial danger that the jury will convict the defendant solely because it assumes

that the defendant has a propensity to commit criminal acts, or deserves punishment

regardless of whether he or she committed the crime charged in the indictment. See

State v. Curry (1975), 43 Ohio St.2d 66, 68, 72 O.O.2d 37, 38, 330 N.E.2d 720, 723.

       {¶71} “Rule 404(b) only bars evidence of ‘prior bad acts,’ such as a criminal

conviction, that are offered to show criminal disposition or propensity. If the evidence

has an independent purpose, its admission is not prohibited by Rule 404(b).” See

United State v. Ushery (6th Cir.1992), 968 F.2d 575, 580.
Richland County, Case No. 2010-CA-0134                                                   19


      {¶72} Under Evid.R. 401, evidence is relevant if it has "any tendency to make

the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence."

      {¶73} In the case at bar, there was no specific showing that the victim in this

case was present or aware of any of the previous instances of alleged domestic

violence. (T. at 221). No explanation is given as to how appellant’s alleged affair with a

married woman has any relevance to the ten year old victim’s allegations of sexual

abuse.

      {¶74} The record in the case at bar makes clear that the testimony concerning

domestic violence and affairs was inadmissible character evidence under Evid. R. 404.

That being said, we find while the testimony concerning domestic violence and

appellant’s alleged affairs was inadmissible, there was no prejudice to the appellant.

      {¶75} In making a Crim.R. 52(A) harmless error analysis, any error will be

deemed harmless if it did not affect the accused's “substantial rights.” Otherwise stated,

the accused has a constitutional guarantee to a trial free from prejudicial error, not

necessarily one free of all error. Before constitutional error can be considered harmless,

we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

Chapman, supra, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 711. Where there is no

reasonable possibility that unlawful testimony contributed to a conviction, the error is

harmless and therefore will not be grounds for reversal. State v. Lytle ( 1976),

48 Ohio St. 2d 391, 2 O.O. 3d 495, 358 N.E. 2d 623, paragraph three of the syllabus,

vacated on other grounds in (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
Richland County, Case No. 2010-CA-0134                                                  20


       {¶76} In the case at bar, the jury was given a limiting instruction. (T. at 603). “A

presumption always exists that the jury has followed the instructions given to it by the

trial court,” Pang v. Minch (1990), 53 Ohio St.3d 186, 187, 559 N.E.2d 1313, at

paragraph four of the syllabus, rehearing denied, 54 Ohio St.3d 716, 562 N.E.2d 163,

approving and following State v. Fox (1938), 133 Ohio St. 154, 12 N.E.2d 413;

Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566. Further, the jury found

appellant not guilty of twelve of the fifteen counts alleged in the Indictment.

       {¶77} Even though the admission of the prior acts was erroneous, we would

conclude, from a review of the entire record, that such error would be 'harmless beyond

a reasonable doubt.' Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705; Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d

284; Schneble v. Florida (1972), 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340.

       {¶78} Appellant’s Fourth Assignment of Error is overruled.

                                                 V.

       {¶79} In his Fifth Assignment of Error, appellant argues that the trial court erred

by permitting witnesses to testify concerning what the victim had disclosed to them. We

disagree.

       {¶80} “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one

of the recognized exceptions. Evid.R. 802; State v. Steffen (1987), 31 Ohio St.3d 111,

119, 509 N.E.2d 383.
Richland County, Case No. 2010-CA-0134                                                   21


       {¶81} “The hearsay rule ... is premised on the theory that out-of-court statements

are subject to particular hazards. The declarant might be lying; he might have

misperceived the events which he relates; he might have faulty memory; his words

might be misunderstood or taken out of context by the listener. And the ways in which

these dangers are minimized for in-court statements the oath, the witness' awareness of

the gravity of the proceedings, the jury's ability to observe the witness' demeanor, and,

most importantly, the right of the opponent to cross-examine are generally absent for

things said out of court.” Williamson v. United States (1994), 512 U.S. 594, 598, 114

S.Ct. 2431, 2434, 129 L.Ed.2d 476.

       {¶82} Under Evid.R. 801(D), prior statements by a witness and admissions by a

party-opponent are not hearsay even though the statements or admissions are offered

for their truth and fall within the basic definition of hearsay. However, Evid.R. 801(D)(1)

requires that the declarant testify at trial and be subject to cross-examination concerning

the statement. In the case at bar, N.J. testified and was subject to cross-examination

during appellant's jury trial.

       {¶83} In the case at bar, Carol Anderson, Elaine Stewart and Luanne Payne

testified as to what the victim disclosed to them as part of their investigation into the

allegations. (T. at 197-199; 201; 269-271; 278; 488-489). Further the State, when

questioned on the record about the testimony in question indicated that the statements

were admissible under Evidence Rule 801(D) (1)(b) as a prior consistent statement to

rebut the charge of recent fabrication. (T. at 299-300).

       {¶84} Pursuant to Evid.R. 801(D)(1)(b), a prior consistent statement of a witness

at trial is admissible on redirect examination to rehabilitate that witness if the statement
Richland County, Case No. 2010-CA-0134                                                 22


is offered to rebut an express or implied charge on cross-examination that the witness

was fabricating testimony given on direct examination. State v. Bock (1984), 16 Ohio

App.3d 146, 474 N.E.2d 1228; State v. Polhamus (June 18, 1999), Montgomery App.

No. 17283. The Rule permits the introduction of the declarant's consistent out-of-court

statements to rebut a charge of recent fabrication, improper influence or motive only

when those statements were made before the charged recent fabrication or improper

influence or motive. Tome v. United States (1995), 513 U.S. 150, 167, 115 S.Ct. 696,

705, 130 L.Ed.2d 574. State v. Nichols (1993), 85 Ohio App.3d 65, 71, 619 N.E.2d 80,

84. (Citations omitted). In addition it must be emphasized that, “[p]rior consistent

statements may not be admitted to counter all forms of impeachment or to bolster the

witness merely because she has been discredited.” Tome, supra at 158, 115 S.Ct. at

701. The question to be addressed is whether the out-of-court statements rebutted the

alleged motive to falsify testimony or the improper influence, not whether they

suggested that the declarant's in-court testimony was true. The Rule speaks of a party

rebutting an alleged motive, not bolstering the veracity of the story told. Tome, supra at

157-158, 115 S.Ct. at 701. “If the Rule were to permit the introduction of prior

statements as substantive evidence to rebut every implicit charge that a witness' in-

court testimony results from recent fabrication or improper influence or motive, the

whole emphasis of the trial could shift to the out-of-court statements, not the in-court

ones.” Id. at 165, 115 S.Ct. at 705. See, also State v. Bleigh, Delaware App. No. 09-

CAA-03-0031, 2010-Ohio-1182 at ¶82.

      {¶85} However, even if we were to find that the trial court erred in admitting at

trial the statements pursuant to Pursuant to Evid.R. 801(D)(1)(b) as a prior consistent
Richland County, Case No. 2010-CA-0134                                                   23


statement of a witness, we would not find it to be prejudicial error under the facts of this

case. Crim.R. 52(A), which governs the criminal appeal of a non-forfeited error, provides

that “[a]ny error * * * which does not affect substantial rights shall be disregarded.”

(Emphasis added.)

       {¶86} The test for determining whether the admission of inflammatory or

otherwise erroneous evidence is harmless and non-constitutional error requires the

reviewing court to look at the whole record, leaving out the disputed evidence, and then

to decide whether there is other substantial evidence to support the guilty verdict. State

v. Riffle, Muskingum App. No.2007-0013, 2007-Ohio-5299 at ¶ 36-37. (Citing State v.

Davis (1975), 44 Ohio App.2d 335, 347, 338 N.E.2d 793). Error is harmless beyond a

reasonable doubt when the remaining evidence constitutes overwhelming proof of the

defendant's guilt. State v. Williams (1988), 38 Ohio St.3d 346, 349-350, 528 N.E.2d 910.

       {¶87} An expert cannot give an opinion of the veracity of the statements of a

child declarant. State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220. However,

there is a difference “between expert testimony that a child witness is telling the truth

and evidence which bolsters a child's credibility.” State v. Stowers, 81 Ohio St.3d 260,

262, 1998-Ohio-0632. Thus, an expert can testify that a child's behavior is consistent

with the behavior of other children who had been sexually abused. Id.

       {¶88} In any event, even if the statements were inadmissible, we note that any

error will be deemed harmless if it did not affect the accused's “substantial rights.”

Before constitutional error can be considered harmless, we must be able to “declare a

belief that it was harmless beyond a reasonable doubt.” Chapman, supra, 386 U.S. at

24, 87 S.Ct. at 828, 17 L.Ed.2d at 711. Where there is no reasonable possibility that
Richland County, Case No. 2010-CA-0134                                                  24


unlawful testimony contributed to a conviction, the error is harmless and therefore will

not be grounds for reversal. State v. Lytle (1976), 48 Ohio St.2d 391, 2 O.O.3d 495, 358

N.E.2d 623, paragraph three of the syllabus, vacated on other grounds in (1978), 438

U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.

       {¶89} In the case at bar, the testimony in question was largely cumulative of the

victim’s trial testimony. Further, independent evidence of the alleged crimes was

introduced to the jury in the form of DNA evidence taken from the underwear the victim

was wearing at the time of the alleged assault. In addition, N.J. herself testified and was

subject to cross-examination. “[W]hen the declarant appears for cross-examination at

trial, the Confrontation Clause places no constraints at all on the use of his prior

testimonial statements.” Crawford v. Washington (2004), 541 U.S. 36, 59, fn. 9, 124

S.Ct. 1354. In this case the jury found appellant guilty of only three of the fifteen

charges included in the Indictment. It does not appear that the jury was unduly swayed

by the admission of the statements in question.

       {¶90} Because we find there is no reasonable possibility that testimony cited as

error by appellant contributed to a conviction, any error is harmless. State v. Kovac, 150

Ohio App.3d 676, 782 N.E.2d 1185, 2002-Ohio-6784 at ¶ 42; State v. Morrison, Summit

App. No. 21687, 2004-Ohio-2669 at ¶ 66.

       {¶91} Appellant’s Fifth Assignment of Error is overruled.

                                               VI.

       {¶92} In his Sixth Assignment of Error, appellant argues that he was denied

effective assistance of trial counsel. Specifically, appellant argues in toto, “All of the

issues raised with respect to the inefficiency and ineffectiveness of counsel was [sic.]
Richland County, Case No. 2010-CA-0134                                                  25


set forth in the previous Assignments of Error. To the extent that objection was not

made by counsel to the evidence referred to herein, failure to object to that testimony

was defective performance, falling below the objective standard of reasonable

representation.” [Appellant’s Brief at 27-28]. We disagree.

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

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

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

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

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373.

       {¶94} To prevail on this claim, appellant must meet both the deficient

performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance

(2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251.

       {¶95} To show deficient performance, appellant must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, at 688.

In light of “the variety of circumstances faced by defense counsel [and] the range of

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

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

considering all the circumstances.” Id., at 688–689. At all points, “[j]udicial scrutiny of

counsel’s performance must be highly deferential.” Id., at 689.

       {¶96} Appellant must further demonstrate that he suffered prejudice from his

counsel’s performance. See Strickland, 466 U. S., at 691 (“An error by counsel, even if
Richland County, Case No. 2010-CA-0134                                               26


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

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

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

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

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

      {¶97} The United States Supreme Court and the Ohio Supreme Court have

held a reviewing court “need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.” Bradley at 143, quoting Strickland at 697.

      {¶98} In the case at bar, appellant argues that his trial counsel was ineffective

because on numerous occasions his trial counsel failed to object or renew objections to

the errors detailed in the foregoing assignments of error.

      {¶99} “‘The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.’ ” State v. Fears (1999), 86 Ohio St.3d 329, 347, 715

N.E.2d 136, quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831.

      {¶100} In light of our discussion of appellant’s assignments of error, appellant's

claim of ineffective assistance of counsel must fail under the second prong of the

Strickland test. Even if trial counsel's performance fell below an objective standard of

reasonable representation, which we do not decide, we find any error was harmless.

      {¶101} We acknowledge the standard for harmless error in the admission of

inflammatory or otherwise erroneous evidence is different from the standard under an

ineffective assistance of counsel analysis. However, for the same reasons advanced in
Richland County, Case No. 2010-CA-0134                                               27


our discussion of the appellant’s five assignments of error supra, we cannot find the

result of the trial was unreliable or the proceeding was fundamentally unfair because of

the performance of trial counsel. State v. Boucher (Dec. 23, 1999), Licking App. No. 99

CA 00045.

      {¶102} Appellant's Sixth Assignment of Error is overruled.

      {¶103} For the foregoing reasons, the judgment of the Richland County Court of

Common Pleas is affirmed.

By Gwin, P.J., and

Edwards, J., concur;

Farmer, J., concurs

separately
                                            _________________________________
                                            HON. W. SCOTT GWIN

                                            _________________________________
                                            HON. SHEILA G. FARMER

                                            _________________________________
                                            HON. JULIE A. EDWARDS




WSG:clw 0808
Richland County, Case No. 2010-CA-0134                                                 28

Farmer, J., concurs separately

      {¶104} I concur in the majority's analysis contained in Assignment of Error V, but

would find that the trial court did not err in permitting the statements as they qualified

under Evid.R. 801(D)(1)(b).




                                         ________________________________
                                         HON. SHEILA G. FARMER
[Cite as State v. Lindsay, 2011-Ohio-4747.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
WENDELL R. LINDSAY, II.                           :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2010-CA-0134




             For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs to

appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. SHEILA G. FARMER

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
