[Cite as State v. Blasenhauer, 2017-Ohio-7357.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                        JUDGES:
                                                     Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                           Hon. William B. Hoffman, J.
                                                     Hon. Earle E. Wise, Jr., J.
-vs-
                                                     Case No. 16-CA-22
ROBERT L. BLASENHAUER

        Defendant-Appellant                          OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Guernsey County Court of
                                                  Common Pleas, Case No. 15-CR-224


JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           August 24, 2017

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JASON R. FARLEY                                   STEPHEN E. PALMER
Assistant Guernsey County                         WILLIAM FORNIA
Prosecuting Attorney                              Yavitch & Palmer, Co. L.P.A.
145 N. 7th Street                                 511 South High Street
Cambridge, Ohio 43725                             Columbus, Ohio 43215
Guernsey County, Case No. 16-CA-22                                                         2

Hoffman, J.



       {¶1}   Defendant-appellant Robert L. Blasenhauer, Jr. appeals his conviction on

one count of rape, in violation of R.C. 2907.02(A)(1)(b), entered by the Guernsey County

Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   At all times relevant, Appellant was married to M.B., and shared four

children, in addition to seven children Appellant fathered in previous relationships. It is

uncontested the parties were experiencing marital difficulties, personally and financially,

at the time of the events herein, and were contemplating divorce.

       {¶3}   On the evening of September 26th, 2015, Appellant and M.B. had a bonfire

with their children. The parties consumed alcoholic beverages, including shots of whiskey,

with a neighbor. It is undisputed Appellant was intoxicated. Appellant had difficulty

holding his head up, was staggering while walking and slurring his words. M.B. was also

intoxicated. Seven of the parties’ children were home during the evening. B.B., the

parties’ eight year-old daughter, went inside from the bonfire, falling asleep in Appellant

and M.B.’s bedroom.

       {¶4}   Later in the evening, Appellant and M.B. went inside, washing the dirt from

their feet in the bathroom. Appellant proceeded to the bedroom, while M.B. went to the

kitchen to eat cereal. M.B. also sat in the family room with G.B., Appellant’s daughter.

       {¶5}   M.B. later entered the bedroom, observing Appellant on top of B.B. in the

bed. Appellant’s hand was moving. M.B. turned the bedroom light on, screaming at

Appellant to get off B.B. Appellant put his shorts on, throwing a blanket over B.B.
Guernsey County, Case No. 16-CA-22                                                         3


       {¶6}   G.B., Appellant’s other daughter, overheard M.B. yelling and observed

Appellant come out of the bedroom, stating to M.B. “you’re stupid.” M.B. told Appellant

to leave the residence.

       {¶7}   B.B. stated she went inside from the bonfire, going to bed in her parents’

room. She eventually fell asleep, but was later awakened by Appellant pulling the covers

off of her. Appellant pulled her pants off of her, followed by pulling her underwear down

her left leg. Appellant touched his mouth to her “bad spot,” where she “goes to the

bathroom.” She felt Appellant put his “bad spot” in her “bad spot,” but not “too far”. He

rubbed his “bad spot” while touching B.B. M.B. then walked into the room, yelling at

Appellant, who then left the residence.

       {¶8}   M.B. observed a wet spot between B.B.’s legs on the bed, appearing to be

semen. She photographed the scene. M.B. also observed fluid in B.B.’s private area, near

her legs and buttocks. She photographed the image. M.B. ran to the neighbors, later

calling law enforcement.1

       {¶9}   Deputy Oakley of the Guernsey County Sheriff’s Department arrived at the

scene, followed by Lieutenant Mackie. M.B. was emotionally “hysterical” and crying.

Deputy Oakley observed B.B. on the bed, with a sheet or a blanket on top of her.2 B.B.

was not wearing underwear, and a small pair of underwear were located near her on the

bed. The underwear were later determined to be clothing M.B. intended to use to “clean




1
  Contradictory testimony offered at trial indicates M.B. may have placed a phone call
prior to going to the neighbor’s home.
2
  The evidence offered at trial was contradictory as to the state of dress or undress of
B.B. at the time law enforcement arrived.
Guernsey County, Case No. 16-CA-22                                                        4


up” B.B., prior to calling dispatch. Deputy Oakley observed small wet spots on the bed

sheets, directly below B.B.’s buttocks area, and a large round spot of a fluid substance.

       {¶10} Lieutenant Mackie testified M.B. was hysterical at the residence. He further

recounted the apprehension of Appellant, who was found passed out in his work truck,

with no socks and no shirt on. He wore only jean type shorts. Appellant was visibly

intoxicated. A loose pair of boxer shorts was found in his pocket. He was not wearing

underwear.

       {¶11} Appellant was indicted on one count of rape, in violation of R.C.

2907.02(A)(1)(b), a first degree felony, with a victim under the age of thirteen.3

       {¶12} Following a jury trial, Appellant was convicted of the charge on September

30, 2016, and sentence was imposed on October 3, 2016, via Judgment Entry of

Sentence.4

       {¶13} Appellant appeals, assigning as error,



              I.   THE   TRIAL    COURT      COMMITTED       PLAIN     ERROR         BY

       ADMITTING (WITHOUT OBJECTION) IMPPROPER [SIC] HEARSAY

       EVIDENCE IN VIOLATION OF THE RULES OF EVIDENCE AND

       APPELLANT’S RIGHTS OF CONFRONTATION AND TO DUE PROCESS

       OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

       THE     UNITED      STATES      CONSTITUTION         AND      COMPARABLE

       PROVISIONS OF THE OHIO CONSTITUTION.



3
 It is undisputed B.B. was eight years of age at all times relevant.
4
 Appellant was sentenced to eighteen years to life in prison, but does not appeal the
sentence imposed herein.
Guernsey County, Case No. 16-CA-22                                       5


           II. THE TRIAL COURT COMMITTED PLAIN ERROR BY

     ADMITTING (WITHOUT OBJECTION) OTHER ACTS EVIDENCE IN

     VIOLATION OF THE RULES OF EVIDENCE AND APPELLANT’S RIGHT

     TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH

     AMENDMENT TO THE UNITED STATES CONSTITUTION AND

     COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

           III. THE TRIAL COURT COMMITTED PLAIN ERROR BY

     ADMITTING (WITHOUT OBJECTION) IMPROPER EXPERT TESTIMONY

     ABOUT THE VERCITY [SIC] OF THE ALLEGED VICTIM IN VIOLATION

     OF THE RULES OF EVIDENCE AND APPELLANT’S RIGHT TO DUE

     PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH

     AMENDMENT TO THE UNITED STATES CONSTITUTION AND

     COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

           IV. THE PROSECUTOR’S REFERENCE TO APPELLANT’S

     EXERCISE OF THE FIFTH AMENDMENT RIGHT TO REMAIN SILENT

     CONSTITUTED       PLAIN   ERROR,    SERIOUSLY   AFFECTING    THE

     OUTCOME OF APPELLANT’S TRIAL.

           V. THE PROSECUTOR’S REFERENCE TO APPELLANT’S

     UTILIZATION OF HIS 401(K) TO PAY FOR HIS DEFENSE VIOLATED

     APPELLANT’S RIGHT TO COUNSEL GUARANTEED BY THE SIXTH

     AMENDMENT TO THE U.S. CONSTITUTION.

           VI.   THE    APPELLANT     WAS   DENIED    THE   EFFECTIVE

     ASSISTANCE        OF   COUNSEL     CONTRARY     TO   HIS   RIGHTS
Guernsey County, Case No. 16-CA-22                                        6


     GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF

     THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I,

     OF THE OHIO CONSTITUTION.

           VII. UNDER THE DOCTRINE OF ACCUMULATED ERROR, THE

     ERROR     COMMITTED      BY     THE    COURT,     THE   MISCONDUCT

     COMMITTED BY THE STATE, AND THE INEFFECTIVE ASSISTANCE OF

     APPELLANT’S TRIAL COUNSEL WARRANT REVERSAL.

           VIII. THE TRIAL COURT ERRED AND THEREBY DEPRIVED

     APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE

     FOURTEENTH        AMENDMENT           TO    THE   UNITED    STATES

     CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO

     CONSTITUTION BY OVERRULING APPELLANT’S CRIM. R. 29 MOTION

     FOR JUDGMENT OF ACQUITTAL, AS THE STATE FAILED TO OFFER

     SUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF

     THE CHARGES BEYOND A REASONABLE DOUBT.

           IX. THE TRIAL COURT ERRED BY FINDING APPELLANT GUILTY

     AND THEREBY DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS

     GUARANTEED BY PROVISIONS OF THE OHIO CONSTITUTION

     BECAUSE THE VERDICT OF GUILTY WAS AGAINST THE MANIFEST

     WEIGHT OF THE EVIDENCE.



                                            I.
Guernsey County, Case No. 16-CA-22                                                          7


       {¶14} In the first assigned error, Appellant maintains the trial court committed plain

error in allowing hearsay statements into evidence. Specifically, Appellant challenges the

statements made by Deputy Oakley, M.B. and K.B. relative to the alleged other acts

committed against K.B., Appellant’s daughter from a prior relationship.

       {¶15} It is well-settled a party must object in order to preserve an issue for appeal.

See, e.g., State v. Jones (2001), 91 Ohio St.3d 335, 343, 2001–Ohio–57, 744 N.E.2d

1163; State v. Robb (2000), 88 Ohio St.3d 59, 75, 2000–Ohio–275, 723 N.E.2d 1019;

State v. Lindsey (2000), 87 Ohio St.3d 479, 482, 2000–Ohio–465, 721 N.E.2d 995.

Because appellant failed to object to the testimony during the hearing, we must determine

whether the trial court committed plain error in allowing the testimony. Plain error is

reversible error to which no objection was lodged at trial; it is obvious and prejudicial, and

if permitted it would have a material adverse effect on the character and public confidence

in judicial proceedings. State v. Craft (1977), 52 Ohio App.2d 1, 7, 367 N.E.2d 1221. See,

also, Crim.R. 52(B). Notice of plain error is to be taken with utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice. State v.

Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus.

       {¶16} Appellant maintains the trial court committed plain error in allowing Deputy

Oakley to testify as to M.B.’s recantation of events during his investigation. Deputy Oakley

testified as to M.B.’s statements to law enforcement upon their arrival to the residence for

purposes of the investigation. Such statements by M.B. would appear to have been

excepted from the hearsay rule as excited utterances. Specifically, Deputy Oakley

testified M.B. relayed the events of the evening to him upon arrival and M.B. indicated

K.B. had told her of a prior incident in which Appellant engaged in alleged sexual conduct
Guernsey County, Case No. 16-CA-22                                                       8


with her.5 Deputy Oakley spoke with K.B. The testimony was cumulative to the testimony

of M.B. herself and K.B. who testified she made the statements, but later recanted the

allegations prior to trial. Appellant had the opportunity to cross-examine both M.B. and

K.B., therefore the testimony was not prejudicial as both testified at trial.

         {¶17} Appellant further asserts the medical records from Akron Children’s

Hospital offered as exhibits by the State constitute hearsay. Specifically, Exhibit B,

commenting B.B. presented for evaluation after “pt’s father was found on top of her

naked,” and Exhibit C, relating a history presented by caregiver, M.B. Exhibit C states,

“Patient told her mother that her father put his ‘bad spot on her bad spot.’ Child told her

mother this is not the first time it had occurred.*** Mother also stated that her 12 y.o.

Daughter [K.B.] said that he had touched her butt before.” Dr. Hamad, the treating

physician, then relied upon the statements in his medical treatment and diagnosis. He

testified,



                …when I reviewed the records from the social worker, this wasn’t the first

         time, and then the patient had stated to the social worker that she didn’t like to

         think about it so, you know, for her, this may have been normal and this is what

         she thought was normal, which would explain why she wasn’t affected…



         Tr. at 324.




5
    This amounts to double hearsay.
Guernsey County, Case No. 16-CA-22                                                        9


        {¶18} While the statements may constitute hearsay, we find any error in the

admission of the evidence harmless and clearly does not rise to the level of plain error.

The testimony was cumulative to the testimony offered by other witnesses and not

prejudicial as M.B., B.B. and K.B. were all subject to examination with regard to the

statements. B.B.’s calmness during Dr. Hamad’s examination arguably reinforced the

defense theory M.B. was lying about the incident.

        {¶19} Appellant’s first assigned error is overruled.

                                                  II.

        {¶20} In the second assigned error, Appellant maintains the trial court committed

plain error in allowing testimony with regard to other bad acts evidence.

        {¶21} In State v. Stinnet, Fairfield App. No. 15CA24, 2016-Ohio-2711, this Court

held,



               We recognize the admission of other-acts evidence is limited

        because of the substantial danger a jury will convict the defendant solely

        because it assumes 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, and this danger is especially high in a case

        “of an inflammatory nature” such as this one. Schaim, supra, 65 Ohio St.3d

        at 59, 600 N.E.2d 661, citing State v. Curry, 43 Ohio St.2d 66, 68, 330

        N.E.2d 720 (1975). However, “[a]s long as used for purposes other than

        proving that the accused acted in conformity with a particular character trait,

        Evid.R. 404(B) permits the admission of ‘other acts' evidence if it is ‘related
Guernsey County, Case No. 16-CA-22                                                   10

     to and share [s] common features with the crime in question.’” State v.

     Markwell, supra, 2012–Ohio–3096, 2012 WL 2613903, at ¶ 45, citing State

     v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), paragraph one of the

     syllabus.

           The State argues the evidence of each offense would have been

     admissible at separate trials pursuant to Evid.R. 404(B), which states in

     pertinent part: “Evidence of other crimes, wrongs, or acts is not admissible

     to prove the character of a person in order to show action in conformity

     therewith. It may, however, be admissible for other purposes, such as proof

     of motive, opportunity, intent, preparation, plan, knowledge, identity, or

     absence of mistake or accident. * * * *.” The Rule is in accord with R.C.

     2945.59, which states:

           In any criminal case in which the defendant's motive or intent, the

     absence of mistake or accident on his part, or the defendant's scheme, plan,

     or system in doing an act is material, any acts of the defendant which tend

     to show his motive or intent, the absence of mistake or accident on his part,

     or the defendant's scheme, plan, or system in doing the act in question may

     be proved, whether they are contemporaneous with or prior or subsequent

     thereto, notwithstanding that such proof may show or tend to show the

     commission of another crime by the defendant.

           Evidence of other acts is admissible if (1) there is substantial proof

     that the alleged other acts were committed by the defendant and (2) the

     evidence tends to prove motive, opportunity, intent, preparation, plan,
Guernsey County, Case No. 16-CA-22                                                     11

      knowledge, identity, or absence of mistake or accident. State v. Carter

      (1971), 26 Ohio St.2d 79, 83, 55 O.O.2d 130, 269 N.E.2d 115; State v. Lowe

      (1994), 69 Ohio St.3d 527, 530, 634 N.E.2d 616, citing State v. Broom

      (1988), 40 Ohio St.3d 277, 282–283, 533 N.E.2d 682; Evid.R. 404(B); R.C.

      2945.59; Miley, 2006–Ohio–4670, 2006 WL 2589816; Clay, 187 Ohio

      App.3d 633, 2010–Ohio–2720, 933 N.E.2d 296.

             In the case at bar, no dispute exists that appellant was the

      perpetrator. In other words, no dispute exists as to identity. Miley, 2006–

      Ohio–4670, 2006 WL 2589816, at ¶ 73; Clay, 187 Ohio App.3d 633, 2010–

      Ohio–2720, 933 N.E.2d 296, at ¶ 45. As the identity of the person who had

      committed the crime was not an issue, nor was Appellant's intent or motive;

      the other acts would not have been properly admitted to prove appellant's

      scheme, plan, or system in committing the crimes charged. Mt. Vernon v.

      Hayes, Knox App. No. 09–CA–0007, 2009–Ohio–6819, 2009 WL 4985247,

      at ¶ 26. For a comparable analysis, see also this court's opinions in State v.

      Ross, Stark App. No.2009CA00253, 2010–Ohio–5096, 2010 WL 4111163,

      and State v. Gresh, Delaware App. No. 09–CAA–012–0102, 2010–Ohio–

      5814. Additionally, Appellant did not claim mistake or accident. Rather,

      Appellant denied committing the sexual acts altogether.



      {¶22} Here, Appellant denied committing the sexual acts, specifically ejaculation,

but did not dispute his presence in the bedroom. Appellant maintained M.B. fabricated

the story, motivated by her desire to end the marriage and separate herself from Appellant
Guernsey County, Case No. 16-CA-22                                                       12


and Appellant from the children. Appellant’s intent or motive in laying in the bed was at

issue, as he claims to not remember the incident, denying any sexual motive.

Accordingly, the other acts allegations with regard to B.B. and K.B. were relevant, and

properly admissible.

       {¶23} Assuming arguendo, the evidence was not properly admissible as other

acts evidence, Appellant has not demonstrated the trial court committed plain error in

allowing the testimony. K.B. testified at trial she recanted her allegations prior to trial.

G.B.6 testified she stated to M.B. Appellant had never touched her inappropriately, and

she had never witnessed Appellant touch others inappropriately.

       {¶24} Accordingly, Appellant has not demonstrated plain error.

       {¶25} The second assignment of error is overruled.

                                                 III.

       {¶26} In the third assigned error, Appellant maintains the trial court committed

plain error in allowing Dr. Hamad, the treating emergency room physician, to testify as to

the demeanor and “credibility” of B.B. Specifically, Dr. Hamad testified at trial,



              Q. Okay. What—what caused you to remember her specifically?

              A. Well, when I went into the room, mother was shocked. She was

       crying, and it was like she was in disbelief of what happened, and the patient

       was sitting there, and it was like nothing had happened to her. She was like




6
 Appellant’s daughter from a previous relationship, who was at the residence during the
night of the incident.
Guernsey County, Case No. 16-CA-22                                                       13


     this is normal for any child as far as what she had gone through and the

     history that she had told me.



     {¶27} Later while still on direct examination, Dr. Hamad clarified his statement,



            Q. Can you describe that in a little more detail?

            A. It was—it was concerning because she just really was very like

     nothing had happened, and when I reviewed the records from the social

     worker, this wasn’t the first time, and then the patient had stated to the social

     worker that she didn’t like to think about it so, you know, for her, this may

     have been normal and this is what she thought was normal, which would

     explain why she wasn’t affected. Mom was obviously crying and very upset.

            Q. And [B.B.] said I don’t want to think about it?

            A. Yes, to the social worker.

            Q. All right. And that it had happened at least five times?

            A. Correct.

            Q. But she doesn’t like to count because I don’t want to think about

     it?

            ***

            A. Yes. Sorry.



     Tr. at 325-326.
Guernsey County, Case No. 16-CA-22                                                        14


       {¶28} We find the admission of the statements to be error, but harmless error. The

out of court statements were made by the social worker and the alleged victim. The

victim, B.B., later testified at trial; therefore, Appellant had the ability to cross-examine

and confront both B.B. and Dr. Hamad as to the statements made.

       {¶29} Appellant has not demonstrated the trial court committed plain error in

allowing the testimony. Appellant has not established sufficient prejudice to require

reversal.

                                            IV. and V.

       {¶30} In the fourth and fifth assigned errors, Appellant maintains the trial court

committed plain error in allowing the State to comment as to Appellant’s “silence” and

statements while in custody, and his retaining counsel with the use of his 401(K) account.

       {¶31} The test for prosecutorial misconduct is whether the prosecutor's remarks

and comments were improper and if so, whether those remarks and comments

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596

(1990). In reviewing allegations of prosecutorial misconduct, we must review the

complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S.

168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not provide a

basis for reversal unless the misconduct can be said to have deprived appellant of a fair

trial based on the entire record. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d 293.

       {¶32} A prosecutor’s remarks constitute misconduct if remarks were improper and

if the remarks prejudicially affected an accused’s substantial rights. State v. Williams, 99

Ohio St.3d 439, 793 N.E.2d 446, 2003-Ohio-4164. Prosecutorial misconduct will not
Guernsey County, Case No. 16-CA-22                                                         15


provide a basis for reversal unless the misconduct can be said to have deprived the

appellant of a fair trial based on the entire record. State v. Lott (1990), 51 Ohio St.3d 160,

555 N.E.2d 293. The touchstone of analysis is the “fairness of the trial, not the culpability

of the prosecutor.” State v. Gapen, 104 Ohio St.3d 358, 819 N.E.2d 1047, 2004-Ohio-

6548. The record must be viewed in its entirety to determine whether the allegedly

improper remarks were prejudicial. State v. Treesh (2001), 90 Ohio St.3d 460, 739 N.E.2d

749.

       {¶33} In opening statement, the prosecutor herein referred to Appellant’s conduct

in custody with Lieutenant Mackie, stating,



              Lieutenant Mackie says, okay, do you want to know why you’re here?

       Well, yeah. Well, your wife walked in and found you having sexual relations

       with your daughter, and the response of [Appellant]…is he nods his head,

       and then he shakes his head, and he says, caught me having sex? Doesn’t

       jump up and scream no, I didn’t do that. (Emphasis added).



       Tr. at 125-126.



       {¶34} In closing arguments, the prosecutor stated,



              Oh wait, maybe [the semen was] left over from when [Appellant]

       ejaculated on [M.B.’s] breasts, which he testified to after he heard the doctor
Guernsey County, Case No. 16-CA-22                                                         16


       say if it had leaked out of a woman, we would have her DNA. Oh wait, I

       ejaculated on her breasts.



       Tr. at 746.



       {¶35} The prosecutor continued in closing statements, “You heard what he said,

and how his testimony now fits the same testimony he heard.” Tr. at 749.

       {¶36} We find the prosecutor’s statements did not affect the fairness of the trial.

Rather, the evidence demonstrates Appellant was intoxicated at the time he was brought

into custody. Appellant took the stand at trial. He testified as to his reaction to being told

of the allegations with regard to B.B. Specifically, he stated he did not react and jump up,

as it felt as if his “soul had been ripped” out of him. Tr. at 671. He maintains “it was too

hard to believe, hearing something like that.” In addition, he was “hungover.” He claims

he wanted “to die right then and there.” Tr. at 672. Appellant did not admit to the

allegations, merely assenting to his wife’s statements, believing her credibility and

veracity. He stated, “Something had to have happened,” if his wife said it did.

       {¶37} Appellant had no recollection of the events, and did not deny the acts

occurred. Appellant maintained he had no memory of the events, he blacked out, and “if

his wife said it happened, he believed her.” While we find the prosecutor’s comment

during opening was an indirect comment on Appellant’s right to remain silent, we do not

find it rises to the level of reversible error. We find the prosecutor’s comments during

closing argument were permissible.
Guernsey County, Case No. 16-CA-22                                                         17


       {¶38} Appellant further argues the prosecutor improperly commented on his

attaining legal representation with funds withdrawn from his 401(k). However, the

prosecutor’s statements were made in response to Appellant’s own testimony alleging

motive of M.B. to fabricate the allegations, and her desire to access his 401(k) account.

Accordingly, we do not find this statement was made with respect to Appellant’s right to

counsel; rather, in rebuttal to Appellant’s own testimony.

       {¶39} The fourth and fifth assignments of error are overruled.

                                                 VI.

       {¶40} In the sixth assignment of error, Appellant maintains he was denied the

effective assistance of trial counsel due to counsel’s failure to object to the hearsay

statements, other acts evidence and prosecutorial statements set forth in the first five

assigned errors.

       {¶41} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

       {¶42} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same
Guernsey County, Case No. 16-CA-22                                                        18

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶43} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the 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.”

Strickland, 466 U.S. at 694.

       {¶44} While the statements and alleged errors raised by Appellant may have been

objectionable, counsel may have deliberately chosen not to object to avoid drawing the

jury's attention to the comments. Trial strategy and even debatable trial tactics do not

establish ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006–

Ohio–2815, ¶ 101. Strategic choices made after substantial investigation “will seldom if

ever” be found wanting. Strickland, supra, 466 U.S. at 681. Moreover, the failure to object

to error, alone, is not enough to sustain a claim of ineffective assistance of counsel. State

v. Crawford, 5th Dist. No. 07 CA 116, 2008–Ohio–6260, ¶ 72, appeal not allowed, 123

Ohio St.3d 1474, 2009–Ohio–5704, 915 N.E .2d 1255, citing State v. Fears, 86 Ohio St.3d

329, 347, 715 N.E.2d 136 (1999). Ultimately we find no reasonable probability the

outcome of the trial would have been different had such objections been raised. See,

State v. Graber, 5th Dist. No.2002CA00014, 2003–Ohio–137, ¶ 154, appeal not allowed,

101 Ohio St.3d 1466, 2004–Ohio–819, 804 N.E.2d 40.

       {¶45} The sixth assigned error is overruled.

                                                VII.
Guernsey County, Case No. 16-CA-22                                                        19


       {¶46} In the seventh assigned error, Appellant maintains the doctrine of

accumulated error applies, warranting reversal of his conviction.

       {¶47} Based upon our analysis and disposition of the first, second, third, fourth,

fifth and sixth assigned errors, we overrule Appellant’s seventh assigned error.

                                           VIII. and IX.

       {¶48} In the eighth and ninth assigned errors, Appellant maintains his conviction

for rape is against the manifest weight and sufficiency of the evidence. We disagree.

       {¶49} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶50} Criminal Rule 29(A) provides a court must order the entry of a judgment of

acquittal on a charged offense if the evidence is insufficient to sustain a conviction on the

offense. Crim.R. 29(A). However, “a court shall not order an entry of judgment of acquittal

if the evidence is such that reasonable minds can reach different conclusions as to

whether each material element of a crime has been proved beyond a reasonable doubt.”

State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. Thus, a motion

for acquittal tests the sufficiency of the evidence. State v. Tatum, 3d Dist. Seneca No.

13–10–18, 2011-Ohio-3005, 2011 WL 2448972, ¶ 43, citing State v. Miley, 114 Ohio

App.3d 738, 742, 684 N.E.2d 102 (4th Dist.1996).
Guernsey County, Case No. 16-CA-22                                                       20


       {¶51} An appellate court's function when reviewing the sufficiency of the evidence

is to determine whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶52} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witnesses' credibility. “While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. McGregor, 5th Dist. Ashland No. 15–COA–023, 2016-Ohio-3082,

2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP–739, 2000

WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness'

testimony, but may accept only portions of it as true. Id. Our review of the entire record

reveals no significant inconsistencies or other conflicts in appellee's evidence that would

demonstrate a lack of credibility of appellee's witnesses.

       {¶53} Appellant was convicted of one count of rape, in violation of R.C.

2907.02(A)(1)(b), which reads,



              (A)(1) No person shall engage in sexual conduct with another who is

       not the spouse of the offender or who is the spouse of the offender but is

       living separate and apart from the offender, when any of the following

       applies:

              ***
Guernsey County, Case No. 16-CA-22                                                      21


              (b) The other person is less than thirteen years of age, whether or

       not the offender knows the age of the other person.



       {¶54} At trial herein, M.B. testified she observed Appellant, while intoxicated, on

top of B.B., the parties’ eight year-old child, in the parties’ bed. Appellant’s hand was

moving. B.B. testified she was awakened by her father, who pulled off the covers, pulled

down her pants, and pulled her underwear down her left leg. B.B. felt Appellant put his

mouth on her “bad spot” where she goes to the bathroom. Appellant touched himself

during the act, then placing his “bad spot” in her “bad spot,” but “not too far.”

       {¶55} At trial, Vanity Maldonado, a DNA Analyst for the Ohio Bureau of Criminal

Investigation, testified sperm cells and semen were positively tested on the vaginal and

perianal swab collected from B.B. Erika Jimenez, of the BCI, testified the DNA from the

semen found in the perianal swab demonstrated a profile consistent with Appellant, to a

one in four quintillion probability. The DNA evidence demonstrated the swab obtained

from B.B.’s vaginal and perianal area tested positive for the presence of semen, and the

semen matched Appellant’s profile to a high degree of probability.

       {¶56} Based upon the evidence presented at trial, Appellant’s conviction on one

count of rape, in violation of R.C. 2907.02(A)(1)(b) is not against the manifest weight nor

based upon insufficient evidence. The eighth and ninth assigned errors are overruled.
Guernsey County, Case No. 16-CA-22                                             22


       {¶57} Appellant’s conviction entered by the Guernsey County Court of Common

Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
