         [Cite as State v. Trusty, 2013-Ohio-3548.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NOS: C-120378
                                                                        C-120386
        Plaintiff-Appellee,                           :   TRIAL NO. B-1105783

  vs.                                                 :
                                                            O P I N I O N.
JAMES M. TRUSTY,                                      :

    Defendant-Appellant.                              :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: August 16, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Joshua L. Goode, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}      Defendant-appellant James M. Trusty appeals from the judgment of

the Hamilton County Court of Common Pleas convicting him, after a jury trial, of

gross sexual imposition.

       {¶2}      Trusty argues that the trial court erred by allowing the investigating

detective to testify to his silence during the investigation, in violation of the Fifth

Amendment, and by allowing hearsay evidence of the child victim’s allegations,

thereby bolstering the credibility of her testimony, which was not corroborated by

any physical evidence.      And Trusty contends that he was denied the effective

assistance of trial counsel because counsel failed to object to this evidence. Trusty

further asserts that his conviction was not supported by sufficient evidence, or that it

was against the manifest weight of the evidence, when only the admissible evidence

is considered.

       {¶3}      Because the child victim’s testimony was not significantly impeached

at trial, the record lacks evidence to support a motive for fabrication of her

allegation, the detective’s reference to Trusty’s pre-arrest silence was limited, the

hearsay evidence was cumulative to what the jury heard from the victim, counsel’s

failure to object was likely trial strategy, and the victim’s testimony was more than

sufficient to establish all the elements of the offense, we hold that Trusty has not

demonstrated that the errors at trial affected his substantial rights. In the absence of

the prejudice required for a new trial, we affirm Trusty’s conviction.

                                 I. Background Facts

       {¶4}      In the summer of 2009, 11-year-old M.G. and her parents lived on the

same street as her Aunt Cathy; Cathy’s former husband, defendant Trusty; and the




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couple’s daughter Hollie, who was M.G.’s cousin and close friend.              M.G.’s

grandmother also lived on the street.

       {¶5}    M.G. often spent the night at Hollie’s house in Hollie’s room. On one

morning, while Hollie slept, she got up to see if her aunt or uncle was awake. M.G.

did not see her aunt, but Trusty was awake and asked her to watch TV with him in

his bed in his bedroom, as she had done in the past without incident. But on this

particular day, when M.G. watched T.V. with Trusty, he grabbed her hand and

pushed it down his shorts and boxers so that her hand touched his penis. After 30

seconds, M.G. moved her hand away, and immediately left the house and went to her

grandmother’s house. At trial, M.G. described clearly and credibly the events of that

morning.

       {¶6}    M.G., however, did not tell anyone about the incident for two years.

In August 2011, while on a church youth group retreat in Chicago, M.G. participated

in an activity that involved writing a private letter about something that she was

“scared of.”   M.G. wrote about that morning in the summer of 2009 when Trusty

forced her to touch him inappropriately. She then shared the letter with Melissa

Graham, the youth pastor on the retreat.

       {¶7}    Graham contacted 241-KIDS as required by law when such an

allegation is made. After returning from Chicago, she accompanied M.G. and her

parents to the Norwood Police Department, where they filed a police report.

Detective Jeff Kilby of the Norwood Police Department was assigned to investigate.

       {¶8}    Trusty was later indicted on a charge of gross sexual imposition. At

trial, M.G. explained that she had not disclosed the allegations about her uncle until

after she wrote the letter at the Chicago retreat. She read the jury her letter, which

was marked as state’s exhibit 1 and later admitted into evidence.



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       {¶9}    M.G. further testified that Trusty had not attempted any improper

contact after the incident, but that she had felt uncomfortable around him. She

stopped spending time with him after he was divorced from her Aunt Cathy in 2010,

although she was not involved in the divorce and she missed seeing Trusty. She

remained friends with her cousin, even though she was afraid that her cousin would

end their friendship if she told her what Trusty had done to her.

       {¶10}   On cross-examination, defense counsel elicited from M.G. an

admission that she could not remember some details of the day in question, such as

the date, the color of Trusty’s shorts, or what she had been watching when the

touching occurred. M.G. also admitted that she had not avoided her uncle after the

incident, that she had returned to spend the night at her cousin’s house, while Trusty

was there, on numerous occasions, and that she did not fear him as a result of the

incident. But M.G. never waivered from her claim that on one warm morning,

during the summer when she was 11 years old, Trusty had made her touch his penis

for 30 seconds while she sat next to him on his bed and watched T.V.

       {¶11}   The state presented two other witnesses at Trusty’s trial, Graham and

Detective Kilby. Graham testified that M.G. had cried after giving her the letter on

the Chicago retreat and that M.G. appeared relieved after sharing the contents of the

letter with her. She also stated that after learning of the contents of the letter, she

contacted the authorities and encouraged M.G. to tell her parents.

       {¶12}   Detective Kilby testified that he had begun an investigation based on

the police report filed by M.G. and her parents after the Chicago trip. He told the

jury that he had contacted Trusty and had requested to interview him, but that he

was later notified by an attorney that the attorney had been hired to represent Trusty

and that Trusty had expressly invoked his constitutional right to remain silent.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13}    Defense counsel did not object to this testimony. On cross-

examination, counsel elicited from Detective Kilby testimony that Trusty had

cooperated with law enforcement.

       {¶14}   Both Graham and Kilby testified to some extent, without any

objection, as to statements previously made by M.G., in which she described the

incident with Trusty. To that end, Graham’s testimony was limited to conveying to

the jury that M.G. had alleged that her uncle had abused her two years earlier and

that she had discussed M.G.’s letter with M.G. Detective Kilby did not repeat for the

jury M.G.’s statement to him about the allegations. Instead, he testified that he was

given the letter during his investigation and that the contents of M.G.’s letter

accurately reflected M.G.’s statements to him during his interview of her.

       {¶15}   At trial, Trusty sought to establish through the cross-examination of

the state’s witnesses that M.G. had fabricated the allegations in response to the

divorce between Trusty and M.G.’s aunt. The divorce had occurred a year after the

improper touching and a year before the church retreat where M.G. had disclosed the

allegations. Despite counsel’s questioning, Trusty was not able to establish that the

divorce was acrimonious or that M.G. had been involved in the divorce proceedings.

Trusty did not testify or present any witnesses.

       {¶16}   In closing argument, defense counsel argued that the state had failed

to meet its burden of proof beyond a reasonable doubt, claiming that M.G.’s

testimony was too lacking in detail and that her allegation contradicted common

sense because she continued to spend time with Trusty after the alleged abuse.

Counsel also argued that the state had not presented any evidence to corroborate

M.G.’s testimony. In rebuttal argument, the state asserted that the letter was a “piece

of evidence” that jurors could consider in finding Trusty guilty of the offense.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17}     Subsequently, the jury found Trusty guilty of gross sexual imposition.

               II. Violation of Privilege Against Self-Incrimination

       {¶18}     In his first assignment of error, Trusty argues that the trial court

erred when it allowed his pre-arrest invocation of his right to remain silent to be

used as substantive evidence of guilt, in violation of his Fifth Amendment privilege

against self-incrimination. The state argues that Detective Kilby’s testimony was

permissible because it explained the course of his investigation.

       {¶19}     Trusty argues that the following testimony by Detective Kilby during

the state’s case-in-chief was improper:

       Prosecutor: Now, Officer, once you had talked to the victim and her

       family and Ms. Martin about this incident and done your investigation,

       what did you do next?

       Detective Kilby: I attempted to speak to the defendant about [the

       allegations]. I called him and requested an interview and then I

       received a notification on the 31st of August from Mr. Fox that he was

       going to represent the defendant and that he was going to exercise his

       constitutional right to remain silent. From there, I filed a letter with

       the prosecutor’s office requesting a direct indictment regarding this

       matter.

(Emphasis added.)

       {¶20}     Trusty claims that the prosecutor continued to explore his exercise of

his right to remain silent with the following line of questioning:

       Prosecutor: Okay. And so you have never talked to the defendant in

       regards to this case?

       Detective Kilby: I left him a message. He left me a message.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



        Prosecutor: And you don’t know of any statements that he’s made to

        anyone else as far as that’s concerned?

        Detective Kilby: I understand that he’s had a conversation with his

        daughter.

        Prosecutor: But you don’t know any of that?

        Detective Kilby: I don’t know.

        {¶21}    The Ohio Supreme Court has held that when a defendant has invoked

his Fifth Amendment privilege against self-incrimination during pre-arrest

questioning by expressing a desire to remain silent or to speak to an attorney, the use

of the defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth

Amendment privilege. State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807

N.E.2d 335, following Combs v. Coyle, 205 F.3d 269 (6th Cir.2000).1

        {¶22}    In Leach, two young women called the police and accused the

defendant of crimes including rape. Id. at ¶ 3. The defendant had initially agreed to

speak with the police about the allegations, but he failed to keep the appointment.

Instead, the defendant left a message on an officer’s answering machine stating that

he wanted to speak to an attorney before talking with the police.

        {¶23}    During opening statement at Leach’s trial, the prosecutor referenced

that Leach had failed to keep his appointment and that he had instead stated that he

wanted to speak to an attorney.           On direct examination, the police investigator

testified about his numerous calls to the defendant, that the defendant had not kept

his appointment to speak with the police, and that the defendant “ ‘wanted to speak


1 The United States Supreme Court recently granted certiorari to resolve a division of authority in
the lower courts over whether the prosecution may use a defendant’s assertion of the privilege
against self-incrimination during a noncustodial police interview as part of its case in chief. But
the court, in a plurality decision authored by Justice Alito, found it unnecessary to reach that
question because the petitioner did not invoke the privilege during his interview. Salinas v.
Texas, ___U.S.___, 133 S.Ct. 2174, 186 L.Ed.2d 376, 81 U.S.L.W. 4467 (2013).


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                     OHIO FIRST DISTRICT COURT OF APPEALS



with an attorney before talking with the police.’ ” Id. at ¶ 5. The court held that the

references to Leach’s request for an attorney resulted in the use of Leach’s pre-arrest

silence as substantive evidence of guilt, in violation of the Fifth Amendment.

       {¶24}   In this case, we arrive at the same conclusion, and we hold that the

state’s use of Trusty’s pre-arrest silence as substantive evidence of guilt violated the

Fifth Amendment. In doing so, we reject the state’s argument that Detective Kilby’s

comment on Trusty’s pre-arrest assertion of his Fifth Amendment privilege was

permissible because it was only offered to explain the course of Detective Kilby’s

investigation. The Leach court rejected a similar argument because this type of

information does not explain the course of the investigation. Id. at ¶ 32. Instead, the

testimony by Detective Kilby allowed the jury to infer Trusty’s guilt from his express

invocation of his Fifth Amendment privilege before his arrest.

       {¶25}   A violation of a defendant’s right against self-incrimination is subject

to harmless-error analysis. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971

N.E.2d 865, ¶ 162. Accordingly, we must review the impact of Detective Kilby’s

testimony in this case.

                                     A. Plain Error

       {¶26}   Although we hold that the admission of Detective Kilby’s testimony

concerning Trusty’s invocation of his Fifth Amendment privilege was error, the

record reflects that Trusty did not object to this testimony. As a result, we apply the

plain error standard referenced in Crim.R. 52(B).

       {¶27}   To have plain error under Crim.R. 52(B), there must be an error that

constitutes an “obvious” defect in the trial proceedings and that affects the

defendant’s “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (2002).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶28}    The issue in this case is whether the clear error affected Trusty’s

substantial rights. We may reverse under a plain-error standard only where the

defendant can demonstrate that “but for the error, the outcome of the trial clearly

would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph two of the syllabus. “Notice of plain error under Crim.R. 52(B) is

to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

       {¶29}    Trusty argues that he was prejudiced by the state’s use of his pre-

arrest silence in its case-in-chief because the state’s case turned on the credibility of

the alleged victim, and it was not based on any physical corroborating evidence. He

contends that the facts of this case are similar to those in Leach, where the Ohio

Supreme Court upheld this court’s reversal of the defendant’s convictions for

attempted rape, gross sexual imposition, and kidnapping based in part on the state’s

use of his pre-arrest silence as substantive evidence of guilt, even though Leach had

failed to object to the admission of that evidence.

       {¶30}    But the Ohio Supreme Court affirmed this court in Leach, and we

held that Leach had failed to demonstrate that the state’s use of his pre-arrest silence

rose to the level of plain error. State v. Leach, 150 Ohio App.3d 567, 2002-Ohio-

6654, 782 N.E.2d 631, ¶ 43 (1st Dist.). We reversed his convictions after finding that

the cumulative effect of several errors denied him a fair trial. Id. at ¶ 58.

       {¶31}    The other errors we recognized included the state’s use of Leach’s

post-arrest silence as substantive evidence of guilt, the admission of the Miranda

waiver form, and the admission of lay opinion testimony placing Leach at the scene

where two female teenagers claimed the wrongful conduct had occurred.

Importantly, we also recognized that there was some evidence to support Leach’s



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                     OHIO FIRST DISTRICT COURT OF APPEALS



theory that the complaining witnesses had fabricated the allegations to avoid

consequences for staying overnight and having parties at a friend’s house while the

friend and her family were out of town. Id. at ¶ 45.

       {¶32}    Ultimately, under those circumstances, the testimony of the state’s

witnesses, without any physical evidence, did not demonstrate the overwhelming

evidence that was needed for the court to avoid giving reversible weight to the

cumulative errors, as we could not say that there was no reasonable probability that

the erroneously admitted evidence, when considered as a whole, had contributed to

Leach’s conviction. Id. at ¶ 58.

                         B. Plain Error Not Demonstrated

       {¶33}    We decline to find plain error in this case based on the erroneous

admission of Detective Kilby’s reference to Trusty’s pre-arrest silence.

       {¶34}    First, the reference occurred only during Detective Kilby’s testimony,

without magnification of the error by the prosecutor through a reference to it in

opening statement or closing argument. Importantly, the record does not reflect that

the prosecutor had planned to elicit the improper testimony as a part of her trial

strategy. See State v. Young, 5 Ohio St.3d 221, 450 N.E.2d 1143 (1983), paragraph

three of the syllabus.

       {¶35}    Second, Detective Kilby only referenced Trusty’s invocation of his

privilege, he did not characterize Trusty’s conduct as a way for Trusty to avoid

“incriminat[ing] himself.”     Compare State v. Whitaker, 4th Dist. Scioto No.

07CA3168, 2008-Ohio-4149, ¶ 34 (finding plain error where the trial court failed to

issue a corrective instruction after the investigating officer testified that the

defendant had affirmatively asserted his right to silence out of a fear of incriminating

himself, and the record did not contain overwhelming evidence of guilt).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶36}   Third, as discussed more fully under the third assignment of error,

defense counsel likely chose not to object to avoid drawing attention to the comment.

Plain error ordinarily cannot be used to negate the effect of a tactical decision. See,

e.g., State v. Claytor, 61 Ohio St.3d 234, 240, 574 N.E.2d 472 (1991) (stating that

“what appears to have been a tactical decision * * * cannot now be converted into

judicial error.”); State v. Clayton, 62 Ohio St.2d 45, 46-47, 402 N.E.2d 1189 (1980);

State v. Noggle, 140 Ohio App.3d 733, 746, 749 N.E.2d 309 (3d Dist.2000).

Moreover, counsel diminished the prejudice by quickly eliciting from Detective Kilby

on cross-examination that Trusty had cooperated with the police.

       {¶37}   Finally, M.G. never equivocated from her testimony that during the

summer of her 11th year, her uncle had put her hand down his pants and on his

penis, even after defense counsel thoroughly cross-examined her. Trusty argues that

M.G. was not believable because she could not remember details such as the color of

Trusty’s shorts or the show she had been watching when the touching occurred. But

we disagree with Trusty that M.G.’s inability to remember that type of detail four

years after the event diminished her credibility.

       {¶38}   Trusty also contends that she contradicted herself with respect to the

amount of time that she had sat with Trusty in his bed before the touching occurred.

The transcript reflects that M.G., on direct examination, stated that she had been on

Trusty’s bed for “a few hours” before the inappropriate touching occurred. But when

asked about the time frame on cross-examination, she said that the touching had

occurred shortly after she sat on the bed. We cannot say however, that M.G.’s

testimony was contradictory based on this example. Instead, her answer on direct

examination may not have been clearly articulated. On cross-examination, defense

counsel stated, “I didn’t exactly hear you before, but did you say that you sat in there



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                     OHIO FIRST DISTRICT COURT OF APPEALS



for a couple hours before this occurred?” M.G. replied, “No.” She then stated that

the touching occurred shortly after she sat on Trusty’s bed.

       {¶39}   Further, the record lacks any support for Trusty’s theory that M.G.

fabricated the allegations in response to the termination of his marriage to her aunt.

The testimony at trial demonstrated only that M.G. was not involved in the divorce,

that her Aunt Cathy had remarried, and that M.G. missed her uncle.        Any animosity

towards Trusty displayed by M.G.’s family in the courtroom most likely stemmed

from the allegations involved at trial, and not from the divorce.

       {¶40}   Because Trusty has failed to demonstrate that the result of his trial

would have been different absent the erroneous admission of evidence of his pre-

arrest silence during the state’s case-in-chief, and that a reversal is necessary to avoid

a manifest miscarriage of justice, we overrule the first assignment of error. Long, 53

Ohio St.2d 91, 372 N.E.2d 804, paragraphs two and three of the syllabus.

                     III. Admission of Hearsay Evidence

       {¶41}   In his second assignment of error, Trusty argues that the trial court

erred by admitting inadmissible hearsay evidence that included the contents of

M.G.’s letter and her prior statements to Graham and Detective Kilby about Trusty’s

improper conduct.     According to Trusty, the state repeatedly used M.G.’s prior

statements, which were consistent with her trial testimony, to improperly bolster her

testimony in this case.

       {¶42}   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 inadmissible unless it falls within a limited

number of exceptions.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶43}   The state first contends that the challenged evidence was not offered

for the truth, but to explain the setting of the case and to show why the witnesses

took the actions they did. According to the state, Graham’s testimony explained why

Graham took the matter to the police. Detective Kilby’s testimony regarding the

allegations explained why he filed charges against Trusty for the offense of gross

sexual imposition. See State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401

(1980).

       {¶44}   Although the record reflects that the state offered Graham’s and

Detective Kilby’s testimony concerning M.G.’s allegations to merely explain their

actions, the record also demonstrates that the state did not limit its use of M.G.’s

letter for that purpose. In closing argument, the state expressly invited the jury to

use M.G.’s letter to determine “what happened in the summer of 2009.”

       {¶45}   We hold, therefore, that M.G.’s letter concerning her allegations

against Trusty was offered for its truth.

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

       {¶46}   The state additionally argues that the letter was admissible under

Evid.R. 801(D)(1)(b), as a “prior consistent statement.”

       {¶47}   Under the hearsay rules, the prior consistent statement of a testifying

witness is not admissible to directly bolster that witness’s credibility. But a prior

consistent statement can be used to rebut a charge “of recent fabrication or improper

influence or motive.” Evid.R. 801(D)(1)(b). For a statement to qualify under this

narrow exception to the hearsay rules, the witness must have made the consistent

statement before the alleged fabrication, influence or motive occurred. State v.

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 107, citing Tome v.

United States, 513 U.S. 150, 157-158, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995); State v.



                                            13
                     OHIO FIRST DISTRICT COURT OF APPEALS



Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 59 (6th Dist.);

State v. Nichols, 85 Ohio App.3d 65, 71, 619 N.E.2d 80 (4th Dist.1984).

       {¶48}    In this case, M.G. wrote the letter containing the allegations after the

divorce, not before. Thus, the state could not use the letter as a “prior consistent

statement” to rebut Trusty’s claim that she had fabricated the allegations as a result

of the divorce. See Evid.R. 801(D)(1). As a result, we reject the state’s argument that

the letter was admissible under Evid.R. 801(D)(1), and we conclude that the letter

was inadmissible hearsay.

                                   B. Plain Error

       {¶49}   Because Trusty did not object to the admission of the letter, we review

under a plain-error standard. Trusty urges this court to find plain error, claiming

that the prejudice from the erroneously admitted evidence was magnified because

M.G.’s testimony was not corroborated by any evidence from the crime scene.

       {¶50}   Generally, where the inadmissible hearsay is duplicative of admissible

evidence elicited from the declarant, who was cross-examined on the matter, and the

admissible evidence is sufficient to establish the elements of the offense, the error in

the admission of the hearsay is deemed to be harmless. See Richcreek, 196 Ohio

App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, at ¶ 43; State v. Tomlinson, 33 Ohio

App.3d 278, 515 N.E.2d 963 (12th Dist.1986); State v. Duszynski, 6th Dist. Lucas No.

L-10-1063, 2010-Ohio-6511, ¶ 52; State v. Griffin, 8th Dist. Cuyahoga No. 80499,

2002-Ohio-4288, ¶ 97.

       {¶51}   And, plain error ordinarily cannot be used to negate the effect of a

tactical decision. See Clayton, 62 Ohio St.2d at 46-47, 402 N.E.2d 1189; Noggle, 140

Ohio App.3d at 746, 749 N.E.2d 309. In our opinion, counsel’s failure to object to

the admission of the letter was likely the result of a trial strategy to allow the jurors



                                           14
                     OHIO FIRST DISTRICT COURT OF APPEALS



to conclude that Trusty was not hiding any information from them and that M.G.’s

allegations were too vague.

       {¶52}    We decline to find plain error in this case, even though the state’s case

was based solely on M.G.’s credibility. Our judgment is based on our own reading of

the record, coupled with what seems to us to have been the likely impact of the

inadmissible hearsay on the minds of an average jury.

       {¶53}    The case against Trusty was not based on circumstantial evidence. It

was based on M.G.’s testimony, which was subject to vigorous cross-examination.

The hearsay was cumulative to M.G.’s testimony. And this is not a case where

hearsay evidence was used to bolster identification testimony—M.G. knew her

assailant.

       {¶54}    The jury was able to witness M.G.’s demeanor and judge her

credibility.   Her testimony was not impeached, although defense counsel tried to

impeach her and to present a reason for her to fabricate the charge against her uncle.

       {¶55}    It is likely that the jury believed M.G.’s testimony because Trusty was

unable to discredit her truthfulness. These facts indicate that the admission of the

hearsay evidence did not contribute to the conviction and was harmless beyond a

reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967); State v. Griffin, 142 Ohio App.3d 65, 79, 753 N.E.2d 967 (1st Dist.2001)

       {¶56}    Ultimately, we are unable to find plain error, because we cannot

conclude that the outcome of the trial clearly would have been different if the error

had not occurred and that a reversal is necessary to avoid a manifest miscarriage of

justice. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraphs two and three of the

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




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                     OHIO FIRST DISTRICT COURT OF APPEALS



               IV. Ineffective-Assistance-of-Counsel Claim

       {¶57}   In his third assignment of error, Trusty argues that he was denied his

Sixth Amendment right to the effective assistance of trial counsel. Trusty’s claim is

based on trial counsel’s failure to object when Detective Kilby commented on his pre-

arrest silence and when the state offered hearsay evidence concerning M.G.’s prior

statements.

       {¶58}   To prevail on his claim that trial counsel was ineffective, Trusty must

demonstrate that trial counsel’s performance was both deficient and prejudicial.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989).

       {¶59}   With respect to deficiency, Trusty must show that his counsel’s

performance “fell below an objective standard of reasonableness.” Strickland at 688.

Our scrutiny of defense counsel’s performance must be highly deferential, as

“counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

       {¶60}   Counsel’s failure to make objections is not, by itself, enough to sustain

a claim of ineffective assistance of counsel. State v. Conway, 108 Ohio St.3d 214,

2006-Ohio-791, 842 N.E.2d 996, ¶ 168; State v. Holloway, 38 Ohio St.3d 239, 244,

527 N.E.2d 831 (1988). The fact-finder may perceive objections to be disruptive and

annoying, and an objection may draw unwanted attention to an issue that might pass

without the jury’s notice absent the objection. See State v. Campbell, 69 Ohio St.3d

38, 53, 630 N.E.2d 339 (1994); State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836,

873 N.E.2d 828, ¶ 90. “[C]ompetent counsel may reasonably hesitate to object in the

jury’s presence.” Campbell at 53.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶61}    We first address trial counsel’s failure to object to the admission of

M.G.’s letter. M.G. disclosed her allegations against Trusty in a letter that she first

shared with Graham. The jury was going to learn about the letter, which contained

fewer details than M.G. disclosed in her trial testimony.

       {¶62}    Counsel’s strategy at trial was to undermine the jury’s confidence in

M.G.’s credibility by arguing that M.G.’s trial testimony was inconsistent, that she

had fabricated the allegations because of the divorce, and that she simply had not

presented enough details of the incident for her allegations to be taken seriously.

       {¶63}    Arguably, the letter bolstered M.G.’s credibility, and the resolution of

the factual issues turned solely on her credibility.        The Tenth District Court of

Appeals found that trial counsel’s failure to object to hearsay evidence constituted

the ineffective assistance of counsel where the hearsay bolstered the credibility of the

victim’s eyewitness testimony and the state lacked corroborating physical evidence or

witnesses.     State v. Nichols, 116 Ohio App.3d 759, 765, 689 N.E.2d 98 (10th

Dist.1996).

       {¶64}    But in this case, unlike in Nichols, M.G. knew her assailant and,

therefore, the hearsay did not bolster identification testimony. And, in this case, trial

counsel may have reasonably believed that it was more advantageous to let the jury

see the letter, because the contents of the letter did not materially advance the state’s

case and Trusty could have been perceived as keeping information from the jury if he

had objected.

       {¶65}    After considering these facts, we conclude that counsel’s failure to

object to the admission of M.G.’s letter was a part of his trial strategy and that

counsel’s failure to object to the admission of the letter fell within the wide range of

professionally competent assistance.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶66}   Graham’s and Detective Kilby’s challenged testimony concerning

M.G.’s allegations was not offered to prove the truth of the allegations, but instead to

explain the witnesses’ actions. As such, the testimony was not hearsay, and it was

not excludable on that basis. Therefore, counsel’s failure to object did not constitute

deficient performance.

       {¶67}   Finally, counsel’s failure to object to Detective Kilby’s comment on

Trusty’s invocation of his Fifth Amendment privilege could have been based on a

legitimate trial strategy to not draw further attention to it. See Mundt, 115 Ohio

St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, at ¶ 90; State v. Ford, 1st Dist. Hamilton

No. C-980957, 1999 Ohio App. LEXIS 5367 *11 (Nov. 12, 1999). The state did not

directly elicit or comment on the testimony, the reference was fleeting, and defense

counsel diminished the prejudice by quickly eliciting from Detective Kilby on cross-

examination that Trusty had cooperated with the police.

       {¶68}   In summary, although we concede that counsel’s strategy was subject

to debate, and, in hindsight, it was unsuccessful, any error in not objecting was not

“so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80

L.Ed.2d 674; see Clayton, 62 Ohio St.2d at 49, 402 N.E.2d 1189 (holding that even a

“questionable” strategy does not constitute a deprivation of the effective assistance of

counsel).

       {¶69}   Accordingly, we overrule the third assignment of error.

            V. Sufficiency- and Weight-of-the-Evidence Claims

       {¶70}   In his fourth and fifth assignments of error, which Trusty argues

together, he claims that his conviction was not supported by sufficient evidence and

that it was against the manifest weight of the evidence.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



         {¶71}   To prove Trusty guilty of gross sexual imposition, the state had to

establish that Trusty purposely had sexual contact with M.G. and that M.G. was

under the age of 13 at the time and not his spouse. R.C. 2907.05(A)(4).

         {¶72}   Trusty contends that to meet its burden of proof in this case, the state

was required to present physical evidence to corroborate M.G.’s testimony about the

sexual crime. This is not the law. See, e.g., State v. Gingell, 7 Ohio App.3d 364, 365,

455 N.E.2d 1066 (1st Dist.1982), citing State v. Tuttle, 67 Ohio St. 440, 66 N.E. 524

(1903); State v. Banks, 71 Ohio App.3d 214, 220, 593 N.E.2d 346 (3d Dist.1991); In

re C.S., 10th Dist. Franklin No. 11AP-667, 2012-Ohio-2988, ¶ 29.

         {¶73}    M.G.’s testimony, alone, was sufficient for the state to meet its

burden of proof of each element beyond a reasonable doubt. See State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

         {¶74}   And we find nothing in the record of the proceedings below to suggest that

the jury, in resolving the conflicts in the evidence adduced on the charged offense, lost its

way or created such a manifest miscarriage of justice as to warrant the reversal of Trusty’s

conviction. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We

note that the weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus. Thus, we overrule the fourth and fifth assignments of

error.

                                     V. Conclusion

         {¶75}   Accordingly, we affirm the judgment of the trial court.


                                                                       Judgment affirmed.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



DINKELACKER and DEWINE, JJ., concur.
Please note:

      The court has recorded its own entry on the date of the release of this opinion.




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