[Cite as State v. Clark, 2017-Ohio-4119.]



                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )            CASE NO. 15 MA 0073
V.                                               )
                                                 )                     OPINION
MAURICE CLARK,                                   )
                                                 )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 2010 CR 354

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Francisco E. Luttecke
                                                 Assistant State Public Defender
                                                 250 East Broad St., Suite 1400
                                                 Columbus, Ohio 43215

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                 Dated: June 2, 2017
[Cite as State v. Clark, 2017-Ohio-4119.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Maurice Clark, appeals from a Mahoning County
Common Pleas Court judgment convicting him of rape, following a jury trial.
        {¶2}     Appellant and L.M. were co-workers who frequently carpooled to work,
along with other co-workers, from Youngstown to their place of employment in
Pennsylvania. They began carpooling in the summer of 2009.
        {¶3}     According to L.M. over a short course of time, appellant began to text
and call her asking how she was doing and inquiring if she was dating anyone. L.M.
conveyed to appellant that she was not interested in dating him. But according to
L.M., appellant persisted in asking her out and contacted her multiple times a day by
phone and text. One time, when L.M. fell asleep in the car on the way to work, she
awoke to appellant touching her leg. L.M. told appellant to stop and that she did not
like him in that way.
        {¶4}     Around the end of August 2009, L.M. decided to stop carpooling with
appellant because she felt he was contacting her too much and interfering with her
job. Soon thereafter, however, L.M. was injured at work and took a few days off.
When she was able to return to work on September 13, 2009, L.M. rode with
appellant because she was taking medication that affected her ability to drive.
        {¶5}     After appellant dropped L.M. off at home that night after 10:00 p.m., he
began texting and calling her. At first, L.M. did not respond. L.M. needed to pick up
another prescription medication that night, so she left her house to go to Walgreen’s.
But first she called appellant back to see what he wanted. L.M. stated that appellant
was crying and told her he was depressed and needed to talk to her. So L.M. went
to appellant’s house, which he shared with his mother and daughter.
        {¶6}     When she arrived, close to midnight, appellant met her in the driveway
and got into the passenger side of her vehicle. L.M. stated that appellant kept telling
her how he needed to talk to her, but then he touched her breast. L.M. pushed his
hand away and told him not to touch her. Appellant then asked L.M. to come into the
house to talk. L.M. stated she would not go into the house. But she stated that
appellant grabbed her arm and they walked into the garage, which was attached to
                                                                               -2-


the house. L.M. did not enter the house. Appellant, however, went inside briefly
while L.M. waited in the garage.
       {¶7}   L.M. stated that while she was standing in the garage, the lights went
out inside the house. Then appellant came back out of the house and into the
garage where he turned off the garage lights and locked the door. According to L.M.,
appellant pushed her up against the wall and began grabbing and touching her. He
then threw her to the ground and removed her clothing. L.M. stated appellant pinned
her down and raped her. She stated that she was crying and yelling at him to stop.
She also tried to kick and punch him. L.M. stated that she heard a noise in the
house. She stated appellant then finished assaulting her. She was then able to grab
her clothes and run out of the garage.
       {¶8}   L.M. stated she got into her vehicle and appellant got in the passenger
side. She told him to get out, which he did, but not before asking her if she was
going to call the police. L.M. left appellant’s house and drove to Walgreen’s to pick
up her prescription. L.M. then drove herself to the hospital where she reported that
she had been raped.
       {¶9}   Appellant denied raping L.M.        He admitted the two had sexual
intercourse in his garage on the night in question but insisted it was consensual sex.
       {¶10} A Mahoning County Grand Jury indicted appellant on two counts of
rape, first-degree felonies in violation of R.C. 2907.02(A)(2)(B), and one count of
kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(4)(C).
       {¶11} The matter proceeded to a jury trial. The jury found appellant guilty of
one count of rape. It found him not guilty of the other rape count and of kidnapping.
       {¶12} The trial court subsequently held a sentencing hearing.         The court
sentenced appellant to ten years in prison. The court also designated appellant as a
Tier III sex offender.
       {¶13} Appellant filed a timely notice of appeal on May 15, 2015. He now
raises five assignments of error.
       {¶14} Appellant’s first assignment of error states:
                                                                                -3-


              MR. CLARK WAS DEPRIVED OF HIS RIGHT TO DUE
       PROCESS, A FAIR TRIAL, AND TO PRESENT A DEFENSE TO THE
       STATE’S ACCUSATIONS WHEN THE TRIAL COURT EXCLUDED
       PORTIONS OF A DEFENSE WITNESS’S TESTIMONY.

       {¶15} Appellant contends the trial court erred in excluding part of defense
witness Eugene Tensley’s testimony.        He contends the rape shield law allows
testimony regarding a past sexual relationship between him and L.M.            Appellant
claims Tensley’s testimony would have directly refuted the state’s position that the
relationship between appellant and L.M. was that of appellant constantly pursuing
L.M. and L.M. constantly rejecting him.        Appellant contends that the excluded
testimony supported the possibility that there was a mutual relationship where
consent was possible.
       {¶16} A trial court has broad discretion in determining whether to admit or
exclude evidence. State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (8th
Dist.1996). Abuse of discretion connotes more than an error of law or judgment; it
implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶17} Appellant’s counsel stated that he wished to present Tensley’s
testimony that, on a date prior to the alleged rape, Tensley witnessed appellant
kissing and fondling L.M. (Tr. 449). Counsel gave his reason for wishing to present
this testimony: “And the sexual activity has nothing to do with her prior sexual activity
as such. It has to do with her disagreeing that that ever occurred between her and
the defendant.    It goes to the issue of credibility, not sexual activity.”   (Tr. 447;
Emphasis added). The trial court allowed Tensley to testify. (Tr. 448). But it ruled
his testimony could not have anything to do with sexual activity. (Tr. 449).
       {¶18} The rape shield law provides in relevant part:

              Evidence of specific instances of the victim's sexual activity,
       opinion evidence of the victim's sexual activity, and reputation evidence
                                                                                  -4-


       of the victim's sexual activity shall not be admitted under this section
       unless it involves evidence of the origin of semen, pregnancy, or
       disease, or the victim's past sexual activity with the offender, and only
       to the extent that the court finds that the evidence is material to a fact at
       issue in the case and that its inflammatory or prejudicial nature does not
       outweigh its probative value.

R.C. 2907.02(D).
       {¶19} In determining whether the rape shield law has been unconstitutionally
applied in a particular case, the court must balance the state’s interests, which the
statute is designed to protect, against the probative value of the excluded evidence.
State v. Stoffer, 7th Dist. No. 09-CO-1, 2011-Ohio-5133, ¶ 91, citing             State v.
Gardner, 59 Ohio St.2d 14, 17, 391 N.E.2d 337 (1979).
       {¶20} One of the enumerated exceptions to the rape shield law seems to
apply – Tensley’s testimony allegedly would have been of L.M.’s past sexual activity
(kissing and fondling, not actual sexual intercourse) with appellant. But even if one of
the enumerated exceptions applies, introduction of the evidence is only permitted if
the court finds the evidence is material to a fact at issue and that its prejudicial nature
does not outweigh its probative value. State v. Minton, 4th Dist. No. 15CA1006,
2016-Ohio-5427, ¶ 30; R.C. 2907.02(D).
       {¶21} And even more importantly, if the contested evidence is merely being
used to impeach the victim's credibility, it is not of probative value as to the alleged
rape itself and it should not be admitted. State v. Kaufman, 187 Ohio App.3d 50,
2010-Ohio-1536, 931 N.E.2d 143, ¶ 89 (7th Dist.), citing State v. Williams, 21 Ohio
St.3d 33, 36, 487 N.E.2d 560 (1986).           Stated differently, when the contested
evidence is submitted only to impeach the victim's credibility, such evidence is
prohibited by the rape shield law. Id., citing State v. Ferguson, 5 Ohio St.3d 160, 450
N.E.2d 265 (1983), paragraph two of the syllabus. See also, State v. Ector, 6th Dist.
No. L-07-1169, 2009-Ohio-515, ¶ 21, citing State v. Gardner, 59 Ohio St.2d 14, 391
N.E.2d 337 (1979) (“Evidence of sexual activity offered merely to impeach the
                                                                                 -5-


credibility of the witness is not material to a fact at issue in the case and must be
excluded.”)
       {¶22} In this case, appellant’s counsel admitted that the only reason he
wanted to present Tensley’s testimony that he saw appellant kissing and fondling
L.M. was to impeach L.M.’s credibility. The case law makes clear that impeachment
is not an acceptable reason under the rape shield law to permit evidence of the
victim’s past sexual activity. It is not material to the fact at issue, that being whether
appellant raped L.M. on September 14, 2009. Therefore, the trial court did not abuse
its discretion in ruling that Tensley could not testify as to any sexual activity he may
have observed between appellant and L.M. in the past.
       {¶23} Accordingly, appellant’s first assignment of error is without merit and is
hereby overruled.
       {¶24} Appellant’s second assignment of error states:

              THE TRIAL COURT DENIED MR. CLARK HIS FEDERAL AND
       STATE RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW
       WHEN IT IMPROPERLY INSTRUCTED THE JURY BY MISSTATING
       THE STATE’S BURDEN OF PROOF WITH REGARDS TO THE
       ELEMENT OF FORCE.

       {¶25} Regarding the element of force, the trial court instructed the jury:

       Force means any violence, compulsion, or constraint physically exerted
       by any means upon or against a person or thing. If the state proves
       beyond a reasonable doubt that the defendant overcame the victim’s
       will by fear or duress, you may infer from those facts and [sic] element
       of force.

(Tr. 529).
       {¶26} Appellant contends in this assignment of error that the second sentence
in the above instruction relates to force by a parent or authority figure and does not
                                                                                   -6-


apply in a case such as this.       Appellant further asserts the second sentence is
inapplicable when the victim is an adult. He claims this erroneous instruction was
particularly prejudicial in this case where the jury found him not guilty on the other
two charges.
       {¶27} Appellant failed to object to this jury instruction at trial. Thus, he has
waived all but plain error.
       {¶28} Plain error is one in which but for the error, the outcome of the trial
would have been different. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804
(1978). An erroneous jury instruction does not constitute plain error unless, but for
the error, the outcome of the trial would have clearly been different.             State v.
Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 56, citing
State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983), syllabus.
       {¶29} Appellant was convicted of rape in violation of R.C. 2907.02(A)(2),
which provides that “[n]o person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by force or threat of
force.” (Emphasis added.)
       {¶30} In support of its position that the jury instruction here was proper, the
state relies on our decision in State v. Rupp, 7th Dist. No. 05 MA 166, 2007-Ohio-
1561. In Rupp, the defendant was convicted of raping an adult victim. Over the
defendant’s objection at trial, the court instructed the jury on the statutory definition of
force and then added, “[i]f the state proves beyond a reasonable doubt that the
defendant overcame the victim's will by fear or duress, you may infer from those facts
the element of force.” Id. at ¶ 24. On appeal, the defendant argued the additional
force instruction was only proper in cases where the defendant occupied a position of
authority over a child or other susceptible party. Id. He argued it was inapplicable to
cases involving an adult victim and the instruction relieved the state of its burden of
proving the element of force or threat of force. Id.
       {¶31} In considering the defendant’s arguments, this court noted:

               Appellant's argument fails to distinguish between the finding of
                                                                                  -7-


       force or threat of force for cases of children raped by those in authority
       positions due to fear of discipline and the mere ability of a jury to infer a
       threat of force in all cases where the victim's will is overcome by fear or
       duress even where no express, direct threat of force is made. That is, in
       the case of a young child and a parent, the state need not even prove
       the victim's will was overcome by fear or duress. Rather, such fact can
       be presumed.
              Conversely, in other types of rape cases, the state must prove
       force or threat of force either through direct evidence of such or by
       inference where the defendant overcame the victim's will by fear and
       duress. Thus, if the defendant created the belief that physical force will
       be used in the absence of submission, then threat of force can be
       inferred. Nothing in the rape statute requires the threat of force to be
       direct or express. Thus, threat of force includes both explicit and implicit
       threats.

Id. at ¶ 32-33. We then upheld the jury instruction “as an accurate statement of the
law regarding force or threat of force.” Id. at ¶ 43.
       {¶32} In the case at bar, the “threat of force” instruction is identical to that in
Rupp. And both Rupp and this case involve an adult victim. Moreover, in Rupp, the
defendant objected to the instruction at trial and we still upheld it as an accurate
statement of the law. Here appellant did not object to it, leaving us only with a plain
error review. Given our findings in Rupp, we cannot conclude that the trial court
erred in instructing the jury on the threat of force as part of its definition of the
element of force.
       {¶33} Accordingly, appellant’s second assignment of error is without merit and
is hereby overruled.
       {¶34} Appellant’s third assignment of error states:

              MR. CLARK’S RIGHT TO CONFRONT WITNESSES, TO A
                                                                               -8-


       FAIR TRIAL, AND DUE PROCESS WERE VIOLATED WHEN THE
       STATE       PRESENTED      TESTIMONY       FROM     A    SANE     NURSE
       DIFFERENT THAN THE ONE WHO EXAMINED [L.M.].

       {¶35} Appellant asserts that his right to confront witnesses against him was
violated when the state presented testimony from a different SANE nurse than the
one who examined L.M. Appellant claims that the state presented Lynn Bilal Hines,
who testified as to her examination of L.M. But appellant argues that Lynn Bilal
Hines was not the nurse who actually examined L.M. Instead, he states that Lynn
Veal was the nurse who examined L.M. To allow another nurse to testify as to the
examination conducted by Lynn Veal, appellant argues, was inadmissible hearsay
and violated his right to cross examine the witness against him.
       {¶36} Appellant filed his brief in this appeal on April 21, 2016. On August 12,
2016, the court reporter filed a “corrected transcript” of appellant’s trial.          The
corrected transcript contains a signed errata sheet from the court reporter stating:

                Upon further review of the transcript of proceedings in the
       above-captioned case, the transcript needs to be corrected due to an
       error in transcription. The SANE nurse identified in the transcript as
       Ms. Lynn Bilal Hines should be corrected to read Ms. Lynn Veal Hines.

(Corrected Transcript).   The errata sheet then lists all of the pages where the
misidentification occurred.
       {¶37} Additionally, the record reflects that it was Lynn Veal who was
subpoenaed to testify, not Lynn Bilal Hines.
       {¶38} Thus, the correct nurse who examined L.M. was the one who testified
at appellant’s trial.
       {¶39} Accordingly, appellant’s third assignment of error is without merit and is
hereby overruled.
       {¶40} Appellant’s fourth assignment of error states:
                                                                                -9-


              TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN
       VIOLATION OF MR. CLARK’S RIGHTS UNDER THE FIFTH, SIXTH,
       AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16, OF THE
       OHIO CONSTITUTION.

       {¶41} Here appellant argues his trial counsel was ineffective because he
failed to either proffer Tensley’s testimony or request an in-camera review of his
testimony, failed to realize the nurse who testified was not the nurse who examined
L.M., and failed to object to the jury instruction on force.
       {¶42} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
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, 538 N.E.2d 373 (1989), paragraph two of the
syllabus. Second, appellant must demonstrate that he was prejudiced by counsel's
performance. Id.     To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
       {¶43} Appellant bears the burden of proof on the issue of counsel's
ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.
       {¶44} Appellant first contends his trial counsel was ineffective for failing to
proffer Tensley’s testimony or request an in-camera review of his testimony. As
discussed in appellant’s first assignment of error, however, appellant’s counsel stated
on the record that, given the opportunity to do so, Tensley would testify that he had
witnessed appellant kissing and fondling L.M. (Tr. 449). Moreover, counsel stated
that he only wanted to use Tensley’s testimony to impeach L.M., which as we found
above, is not permitted under the rape shield law. Thus, there is nothing to indicate
that counsel was ineffective in this regard.
                                                                              - 10 -


       {¶45} Appellant next contends his counsel was ineffective for failing to realize
that the nurse who testified was not the nurse who examined L.M. But as discussed
in appellant’s third assignment of error, this misconception on appellate counsel’s
part was due to a typographical error by the court reporter, which has since been
cleared up. The nurse who testified was the nurse who examined L.M.
       {¶46} Finally, appellant contends his counsel was ineffective for failing to
object to the jury instruction on force.     But as discussed in appellant’s second
assignment of error, this instruction was a correct statement of the law and it is
applicable in adult-victim cases.
       {¶47} Based on the above, we cannot conclude that appellant’s trial counsel
was ineffective.
       {¶48} Accordingly, appellant’s fourth assignment of error is without merit and
is hereby overruled.
       {¶49} Appellant’s fifth assignment of error states:

              THE TRIAL COURT VIOLATED MAURICE CLARK’S RIGHT TO
       DUE PROCESS AND A FAIR TRIAL THROUGH CUMULATIVE
       ERROR.

       {¶50} In his final assignment of error, appellant contends the cumulative effect
of the errors discussed in his previous assignments of error warrant a reversal of his
conviction.
       {¶51} An appellate court may reverse a defendant's conviction based on the
doctrine of cumulative error.       Cumulative error occurs when errors deemed
separately harmless deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d
191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
       {¶52} As discussed above, none of appellant's assignments of error have
merit or have raised a harmless error. There is no evidence that appellant was
denied a fair trial. Thus, there was no cumulative error.
       {¶53} Accordingly, appellant's fifth assignment of error is without merit and is
                                                                      - 11 -


hereby overruled.
      {¶54} For the reasons stated above, the trial court's judgment is hereby
affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.
