[Cite as State v. Statzer, 2016-Ohio-7434.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2015-08-148
        Plaintiff-Appellee,                         :
                                                                OPINION
                                                    :           10/24/2016
    - vs -
                                                    :

RALPH STATZER, JR.,                                 :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2014-05-0807



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Fred Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for appellant



        S. POWELL, J.

        {¶ 1} Ralph Statzer, Jr. appeals his convictions in the Butler County Common Pleas

Court for rape. The state indicted Statzer for raping a minor family member multiple times

while the victim was between seven and eleven years old. During trial, the court held an in

camera rape shield hearing to determine whether Statzer's counsel could cross-examine the

victim regarding an allegation that she falsely accused another relative of rape. During the

hearing the victim denied that the allegation was false and indicated that the allegation
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involved molestation, but not intercourse. Trial resumed and Statzer's counsel asked the

victim no further questions on this subject. At the conclusion of the bench trial, the court

found Statzer guilty of five counts of rape. The court imposed sentences of life in prison with

parole, and ten years to life, on four of the counts. On count three, the court sentenced

Statzer to 18 years to life in prison.

       {¶ 2} On appeal, Statzer raises three assignments of error.

       {¶ 3} Assignment of Error No. 1:

       {¶ 4} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT DID NOT CONDUCT A COMPLETE RAPE SHIELD HEARING AND

WHEN IT DID NOT MAKE THE DETERMINATION REGARDING THE ABILITY TO CROSS-

EXAMINE [THE VICTIM].

       {¶ 5} Statzer contends that the court erred in the manner in which it conducted the

rape shield hearing. Statzer argues that the court failed to make a required factual finding,

i.e., whether and what type of sexual activity occurred between the victim and the other

relative, and further failed to outline Statzer's counsel's ability to cross-examine the victim on

the alleged false accusation.

       {¶ 6} Statzer did not object to the court's handling of the rape shield hearing.

Nonetheless, Crim.R. 52(B) provides that "[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court." Plain error

means an obvious defect in trial proceedings that affected the defendant's substantial rights.

State v. Knodel, 12th Dist. Butler No. CA2006-06-156, 2007-Ohio-4536, ¶ 15.

       {¶ 7} Evid.R. 608(B) generally precludes the admission of extrinsic evidence of

specific conduct of a witness that is submitted for the purpose of challenging the witness'

character for truthfulness. In addition, R.C. 2907.02(D), the rape shield law, prohibits

evidence of "specific instances of the victim's sexual activity" in rape prosecutions.
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       {¶ 8} In State v. Boggs, 63 Ohio St.3d 418 (1992), the Supreme Court of Ohio

addressed whether and how a defendant could, for the purpose of attacking credibility, cross-

examine a victim on prior false allegations of rape. The court concluded that false allegations

of rape could be inquired into only where the allegations were "totally unfounded." Id. at

paragraph two of the syllabus. Stated otherwise, evidence of a prior false accusation of rape

may be admissible so long as there was no sexual activity between the victim and the falsely

accused.

       {¶ 9} The burden is on the defense to demonstrate the allegations of sexual

misconduct were made by the victim and were "actually false or fabricated." Id. at 423. The

court must also determine whether any sexual activity took place, either rape or consensual

sex.   The rape shield law precludes further cross-examination on the subject of the

accusations unless the court determines that the prior allegations were false because no

sexual activity took place. Id.

       {¶ 10} During trial and on cross-examination, Statzer's counsel asked the victim if she

had ever made any false allegations of rape. She said "no." The court then held an in

camera hearing pursuant to Boggs. Statzer's counsel asked the victim about a recorded call

her mother placed to children's services to report that another relative had raped the victim.

During the call, the victim could be heard yelling in the background that she was "not raped."

       {¶ 11} Statzer's counsel asked the victim to explain this remark. The victim responded

that at the time of the recorded call she did not know the legal definition of rape and,

therefore, "I did not consider myself raped." She explained that she later learned the legal

definition before she testified at a grand jury, and that someone (presumably the prosecutor)

told her that "at a certain age and what had happened, it qualified as rape." The hearing

ended and trial resumed. Statzer's counsel asked the victim no further questions on this

subject.
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       {¶ 12} This court finds no obvious defect affecting substantial rights, i.e., plain error, in

the trial court's handling of the rape shield hearing. The court had the discretion to exclude

this extrinsic evidence under Evid.R. 608(B). And pursuant to Boggs, Statzer had the burden

to demonstrate that the victim made a false, totally unfounded, accusation of rape. He failed

to do so. The victim yelled that she was "not raped." However, she explained that this was

not a recanting of an earlier allegation. She testified that she did not, at the time, understand

the legal definition of rape. In other words, she alleged molestation but did not have sexual

intercourse with the perpetrator and thus, did not consider herself "raped."

       {¶ 13} We do not find that the victim's testimony was ambiguous or that further

questioning by Statzer or the court was necessary to determine the alleged specific act of

sexual misconduct. Moreover, because sexual activity was involved, the rape shield law

would preclude cross-examination on this subject during trial. Boggs, 63 Ohio St.3d at 423.

Statzer's counsel presumably realized this and there was no need for the court to offer

explicit direction on this subject. Consequently, we overrule the first assignment of error.

       {¶ 14} Assignment of Error No 2:

       {¶ 15} APPELLANT RECEIVED THE INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 16} Statzer argues that his convictions must be reversed because he received

ineffective assistance of counsel. Counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment. State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. To

prevail on an ineffective assistance of counsel claim, Statzer must show his trial counsel's

performance fell below an objective standard of reasonableness and that he was prejudiced

as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984).

       {¶ 17} In order to demonstrate prejudice, Statzer must establish that, but for his trial

counsel's errors, there is a reasonable probability that the result of trial would have been
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different. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 42.

A "reasonable probability" is a probability that is "sufficient to undermine confidence in the

outcome." Strickland at 694. The failure to make an adequate showing on either prong is

fatal to an ineffective assistance of counsel claim. Kinsworthy at ¶ 42.

                                     Rape shield hearing

       {¶ 18} Statzer contends that counsel was ineffective during the rape shield hearing

and should have inquired further of the victim concerning the alleged false allegation of rape.

This argument is meritless for the reasons set forth in our discussion on the first assignment

of error. Statzer failed to demonstrate that the victim made a false accusation. Moreover,

even if he had met his burden of proving that the accusation was false, further cross-

examination at trial would be precluded by the rape shield law because there was sexual

activity involved.

               Failure to claim rape shield statute unconstitutional as applied

       {¶ 19} Statzer argues that his counsel was ineffective for failing to challenge the

constitutionality of the rape shield law as it was applied to him. The rape shield law prohibits

the admission of evidence concerning a victim's sexual activity except in some narrow

circumstances. R.C. 2907.02(D). Necessarily, any restriction on a defendant's ability to

cross-examine an accuser could impede due process rights.

       {¶ 20} But a defendant's due process rights must be balanced against the state's

interest in the rape shield law. State v. Hart, 112 Ohio App.3d 327, 331 (12th Dist.1996). To

determine whether the rape shield law was unconstitutionally applied, the state's interest

must be balanced against the probative value of the excluded evidence. Id. at 331-332.

Legitimate state interests include guarding the victim's privacy, preventing the victim from

undue harassment, and discouraging the tendency in rape cases to try the victim rather than

the defendant. Id. at 332.
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       {¶ 21} To assess the probative value of the excluded evidence, it is necessary to

examine its relevance to the issues for which it was offered. Id. Here, the excluded evidence

was intended to demonstrate that the victim falsely accused another relative of a different

rape, i.e., to attack the victim's credibility.      But Statzer offered no credible evidence

establishing the falsity of the allegation. Thus, the excluded evidence lacked probative value.

Moreover, the excluded evidence was oriented exclusively towards impeaching the victim's

credibility and was not probative of any material issue in the case, i.e., whether Statzer raped

the victim on specific dates over the course of multiple years. Consequently, an as-applied

challenge to the rape shield law would lack merit and counsel cannot be deficient for failing to

raise a meritless claim.

                           Failure to cross-examine and call a witness

       {¶ 22} Statzer contends that counsel was ineffective for failing to confront the victim

with an affidavit. The affidavit, signed by a relative, alleged that the victim told the relative that

the victim's mother pressured her into making false accusations of rape against Statzer.

However, Statzer's counsel did cross-examine the victim on this specific allegation and the

victim denied the claim. Accordingly, this argument lacks merit.

       {¶ 23} Statzer also argues that counsel was ineffective for failing to ensure that the

relative who signed the affidavit appeared and testified at trial. The record demonstrates that

Statzer's counsel twice subpoenaed the relative to appear, once by personal service and

once by certified mail, and neither attempts at service were successful. The record does not

reflect whether counsel made any additional efforts to secure the witness.

       {¶ 24} Even if counsel made no further attempts we cannot find any deficiency on this

record. It is well-established that the choice to call witnesses is a trial tactic. State v. Jones,

12th Dist. Butler No. CA2001-03-056, 2002-Ohio-5505, at ¶ 22. Trial tactics are afforded the

presumption of reasonableness. To overcome that presumption, and to establish prejudice,
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Statzer "must establish that the testimony of the witness would have significantly assisted the

defense[,] and that the testimony would have affected the outcome of the case." Id.

       {¶ 25} We conclude that the relative's anticipated testimony would not have changed

the outcome of this case. This prosecution hinged on the credibility of the victim, witnesses,

and Statzer. Here, the trial judge believed the victim's testimony describing five separate

instances where Statzer raped her. We defer to the factfinder on credibility determinations.

State v. Andrews, 12th Dist. Butler No. CA2009-02-052, 2010-Ohio-108, ¶ 46.

       {¶ 26} And after having reviewed the record, we find no error in the trial court's

determination that Statzer's testimony was not credible. Statzer's version of events at trial

was inconsistent with his earlier statements. And Statzer's claim that the minor victim asked

him to perform oral sex on her, that she became angry at him when he refused, and then

decided to falsely accuse him of rape, strains credibility. Consequently, we find nothing to

suggest that the relative's anticipated testimony would have affected the outcome of the

case. Accordingly, we overrule the second assignment of error.

       {¶ 27} Assignment of Error No. 3:

       {¶ 28} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELANT WHEN IT IMPOSED A PRISON TERM OF 18 YEARS TO LIFE PURSUANT TO

COUNT III.

       {¶ 29} Statzer challenges his sentence on count three of the indictment, i.e., rape, a

violation of R.C. 2907.02(A)(1)(b), with a specification that the victim was less than ten years

of age. On this count the court imposed an indefinite sentence of 18 years to life in prison.

Statzer argues that this sentence was erroneous and the state agrees.

       {¶ 30} In State v. Jones, 12th Dist. Brown No. CA2014-09-017, 2015-Ohio-2314, this

court found that there are two sentencing options for a conviction under R.C.

2907.02(A)(1)(b) where the victim is under ten years of age. Id. at ¶ 11. The court may
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sentence the offender to an indefinite term of 15 years to life in prison, pursuant to R.C.

2971.03(B)(1)(b), or life without parole, pursuant to R.C. 2907.02(B). Therefore, this court

finds that the trial court erred in sentencing Statzer to an indefinite term of 18 years to life in

prison. Consequently, we find merit in the third assignment of error and reverse and remand

for resentencing on count three.

       {¶ 31} Statzer also argues that R.C. 2971.03(B)(1)(b) is in conflict with R.C.

2967.13(A)(5), the latter of which provides that a prisoner convicted of rape becomes eligible

for parole after ten years of imprisonment if the court imposed a sentence of "imprisonment

for life." Thus, Statzer argues that the rule of lenity requires he receive the lesser of the two

conflicting sentences, i.e., a ten-year minimum sentence. This argument is meritless.

Statzer was not sentenced to imprisonment for life on count three.               Moreover, R.C.

2967.13(A) states that it governs parole eligibility except as provided in subsection (G). R.C.

2967.13(G) provides that a prisoner serving a prison term imposed pursuant to R.C. 2971.03,

as was the case here, never becomes eligible for parole during that term of imprisonment.

       {¶ 32} Judgment affirmed in part, reversed in part and remanded.


       PIPER, P.J., and RINGLAND, J., concur.




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