[Cite as State v. Markwell, 2012-Ohio-3096.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. CT2011-0056
ALAN H. MARKWELL                               :
                                               :
                    Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Muskingum
                                                   County Court of Common Pleas, Case No.
                                                   CR2011-0129


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            July 2, 2012



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

ROBERT L. SMITH                                    DAVID A. SAMS
Box 189                                            Box 40
Zanesville, OH 43702                               Jefferson, OH 43162
[Cite as State v. Markwell, 2012-Ohio-3096.]


Gwin, P.J.

        {¶1}     On August 26, 2011, a jury found appellant Alan H. Markwell [“Markwell”]

guilty of one count of rape and two counts of gross sexual imposition. On September

24, 2011, Markwell returned to court for sentencing. The trial court ordered that

Markwell serve a mandatory prison sentence of ten (10) years on the rape count; a

prison term of eighteen (18) months on the count of gross sexual imposition; and a

prison term of five (5) years on the second count of gross sexual imposition. The

sentences ordered for rape and the count of gross sexual imposition involving the same

victim are to be served concurrent with one another, but consecutive to the sentence

ordered for the gross sexual imposition count involving a different victim, for an

aggregate prison term of fifteen (15) years. Markwell was also designated as a Tier Ill

sexual offender.

                                         Facts and Procedural History

        {¶2}     On April 25, 2011, C.T. a minor reported that she had been touched by

her step-grandfather, Markwell. She told officers that Markwell had touched her on

seven different occasions while she visited her grandmother between June 2008 and

June 2010. C.T. reported that Markwell would come into the room where she and her

sister were sleeping and push his fingers up inside her vagina. She also reported that

Markwell also attempted to do the same thing to her sister, D.T., who would sleep

through the incident.

        {¶3}     Between April 23, and April 25, 2011, C.T. engaged in a texting

conversation with Markwell in which she attempted to get him to admit this conduct. In

one text, Markwell wrote that he loved her and that he was making love to her.
Muskingum County, Case No. CT2011-0056                                                    3


       {¶4}   Upon investigation of these allegations, officers spoke to M. H., then eight

(8) years old, who reported that approximately a year earlier, Markwell had touched her

on her private area.

       {¶5}   Markwell was interviewed by detectives and denied the allegations. In the

defense case, Markwell testified and denied the allegations. He further testified that

M.H., age 8, was sexually adventurous or promiscuous in that she would try to touch

adults on their privates. He further testified about the great relationship that he had with

all of his wife's grandchildren. In regards to the computer messaging, he testified that

his wife's grandchildren had access to the computer during the time in question and

blamed them for fabricating the conversations testified to by C. T. He also testified that

C. T. had a motive to lie about the charges because he had threatened to tell her

parents about a secret boyfriend of hers.

                                      Assignments of Error

       {¶6}   Markwell raises six assignments of error,

       {¶7}   “I. THE CONVICTION IS BASED ON INSUFFICIENT EVIDENCE AND IS

OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION

OF OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

       {¶8}   “II. THE JURY INSTRUCTIONS WERE INSUFFICIENT IN VIOLATION

OF OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

       {¶9}   “III. THE TRIAL COURT ERRED IN JOINING OFFENSES IN VIOLATION

OF OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

       {¶10} “IV. TRIAL COUNSEL WAS INEFFECTIVE IN VIOLATION OF THE

STATE AND FEDERAL CONSTITUTIONS.
Muskingum County, Case No. CT2011-0056                                                   4


      {¶11} “V.    THE    TRIAL    COURT      ERRED     IN   FAILING    TO    SUPPRESS

STATEMENTS OBTAINED IN VIOLATION OF APPELLANT'S CONSTITUTIONAL

RIGHTS IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS.

      {¶12} “VI. APPELLANT WAS DENIED DUE PROCESS BY STRUCTURAL

CUMULATIVE ERROR IN VIOLATION OF OHIO LAW AND THE STATE AND

FEDERAL CONSTITUTIONS.”

                                           ANALYSIS

                                                I.

      {¶13} Markwell challenges his convictions for rape and gross sexual imposition

because he contends that the state failed to prove beyond a reasonable doubt that he

was not married to the victims at the time of the offenses and further that the record

contains insufficient proof that he penetrated the victim to support a conviction for rape.

Markwell further argues that all of his convictions were against the manifest weight of

the evidence.

      {¶14} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, _U.S._, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.
Muskingum County, Case No. CT2011-0056                                                        5


       {¶15} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's at 1594.

       {¶16} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.
Muskingum County, Case No. CT2011-0056                                                 6


              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts. * * *

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶17} In the case at bar, Markwell was found guilty of one count of rape. More

particularly, R.C. 2907.02 states:

              (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:

              ***

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

       not the offender knows the age of the other person.

              (c) The other person's ability to resist or consent is substantially

       impaired because of a mental or physical condition or because of

       advanced age, and the offender knows or has reasonable cause to

       believe that the other person's ability to resist or consent is substantially
Muskingum County, Case No. CT2011-0056                                                 7


      impaired because of a mental or physical condition or because of

      advanced age.

             ***

      {¶18} Markwell was also found guilty of two counts of gross sexual imposition in

violation of R.C. 2907.05 which states:

             (A) No person shall have sexual contact with another, not the

      spouse of the offender; cause another, not the spouse of the offender, to

      have sexual contact with the offender; or cause two or more other persons

      to have sexual contact when any of the following applies:

             ***

             (5) The ability of the other person to resist or consent or the ability

      of one of the other persons to resist or consent is substantially impaired

      because of a mental or physical condition or because of advanced age,

      and the offender knows or has reasonable cause to believe that the ability

      to resist or consent of the other person or of one of the other persons is

      substantially impaired because of a mental or physical condition or

      because of advanced age.

      {¶19} Markwell argues there is a complete absence of proof of non-marriage

between him and the girls an essential element of each charge.

      {¶20} In the present case, each victim testified that Markwell was her "step-

grandpa." C.T. also indicated that she was sixteen (16) years old, lives with her parents

and sister and brother, and attends the eleventh grade at Newark High School.

Similarly, M. H. identified Charlotte Markwell as her grandma and Markwell as her
Muskingum County, Case No. CT2011-0056                                                  8


"grandpa." M. H. also indicated that she was nine (9) years old, lives with her mommy

and daddy, and attends the third grade at Adamsville Elementary School.

       {¶21} Markwell himself testified extensively concerning his family history and

relationships including his first and second marriages. During this testimony, he did not

claim that he was married to either of his victims.

       {¶22} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Markwell was not married to either C.T. or M.H.

       {¶23} Markwell next argues that there was insufficient proof of penetration.

       {¶24} In order to convict Markwell of rape, the state had to prove he engaged in

sexual conduct with C.T. “Sexual conduct” is defined to include “vaginal intercourse

between a male and female; anal intercourse, fellatio, and cunnilingus between persons

regardless of sex; and, without privilege to do so, the insertion, however slight, of any

part of the body or any instrument, apparatus, or other object into the vaginal or anal

cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal

intercourse.” R.C. 2907.01(A).

       {¶25} In the case at bar, C.T. testified that the Markwell penetrated her vagina to

the depth of a fingernail. “Corroboration of victim testimony in rape cases is not

required.” State v. Johnson, 112 Ohio St .3d 210, 217, 2006-Ohio6404 at ¶ 53, 858

N.E.2d 1144, 1158.

       {¶26} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Markwell had committed the crime of rape. We hold, therefore, that the state met its
Muskingum County, Case No. CT2011-0056                                                  9


burden of production regarding each element of the crime of rape and, accordingly,

there was sufficient evidence to support Markwell's conviction.

      {¶27} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680(1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

             A fundamental premise of our criminal trial system is that ‘the jury is

             the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (9th

             Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d

             310 (1974). Determining the weight and credibility of witness

             testimony, therefore, has long been held to be the ‘part of every

             case [that] belongs to the jury, who [is] presumed to be fitted for it

             by [his or her] natural intelligence and... practical knowledge of men

             and the ways of men.’ Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88,

             11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891).

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267(1997).

      {¶28} Although Markwell cross-examined the witnesses and argued that his

computer was hacked, that C.T. had threatened him if he told her parents about her

secret boyfriend and that each child had been sexualized in their own homes, the

weight to be given to the evidence and the credibility of the witnesses are issues for the

trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990).
Muskingum County, Case No. CT2011-0056                                                 10


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

the parties and assess the witness’s 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. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752 (Mar 23, 2000)

citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).

Indeed, the jury need not believe all of a witness' testimony, but may accept only

portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003- Ohio-958, ¶ 21,

citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th

Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d 667,

607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial,

we note that circumstantial evidence has the same probative value as direct evidence.

State v. Jenks, supra.

      {¶30} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,

      The mere number of witnesses, who may support a claim of one or the

      other of the parties to an action, is not to be taken as a basis for resolving

      disputed facts. The degree of proof required is determined by the

      impression which the testimony of the witnesses makes upon the trier of

      facts, and the character of the testimony itself. Credibility, intelligence,

      freedom from bias or prejudice, opportunity to be informed, the disposition

      to tell the truth or otherwise, and the probability or improbability of the

      statements made, are all tests of testimonial value. Where the evidence is
Muskingum County, Case No. CT2011-0056                                                 11

       in conflict, the trier of facts may determine what should be accepted as the

       truth and what should be rejected as false. See Rice v. City of Cleveland,

       114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

       {¶31} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury heard the

witnesses, evaluated the evidence, and was convinced of appellant's guilt. The jury

neither lost their way nor created a miscarriage of justice in convicting Markwell.

       {¶32} Markwell’s first assignment of error is overruled in its entirety.

                                                 II.

       {¶33} In his second assignment of error, Markwell argues that the trial court

failed to properly instruct the jury on the meaning of “penetration” required to sustain a

conviction for rape.

       {¶34} Crim.R. 30(A) governs instructions and states as follows:

              At the close of the evidence or at such earlier time during the trial

       as the court reasonably directs, any party may file written requests that the

       court instruct the jury on the law as set forth in the requests. Copies shall

       be furnished to all other parties at the time of making the requests. The

       court shall inform counsel of its proposed action on the requests prior to

       counsel's arguments to the jury and shall give the jury complete

       instructions after the arguments are completed. The court also may give
Muskingum County, Case No. CT2011-0056                                                     12


       some or all of its instructions to the jury prior to counsel's arguments. The

       court need not reduce its instructions to writing.

              On appeal, a party may not assign as error the giving or the failure

       to give any instructions unless the party objects before the jury retires to

       consider its verdict, stating specifically the matter objected to and the

       grounds of the objection. Opportunity shall be given to make the objection

       out of the hearing of the jury.

       {¶35} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d

35(1999), the United State Supreme Court held that because the failure to properly

instruct the jury is not in most instances structural error, the harmless-error rule of

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies to a failure to

properly instruct the jury, for it does not necessarily render a trial fundamentally unfair or

an unreliable vehicle for determining guilt or innocence. Accordingly, an erroneous jury

instruction that omits an element of the offense is subject to harmless-error analysis. Id.

at 15, 119 S.Ct. at 1837.

       {¶36} On August 23, 2011, Markwell did file a written request for jury instructions

in the case at bar. Of relevance, Markwell asked that the jury be instructed as follows,

“Sexual Conduct means insertion however slight of any part of the body into the vaginal

cavity of another.” Thus, Markwell failed to request a more specific jury instruction

defining “penetration.”

       {¶37} The trial court instructed the jury in relevant part, “the insertion, however

slight, of any part of the body or any instrument, apparatus or other object into the

vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete
Muskingum County, Case No. CT2011-0056                                                 13


vaginal or anal intercourse.” Thus, the trial court gave the jury the instruction that

Markwell had requested at that time.

       {¶38} On appeal, Markwell contends that the trial court was required to define

“penetration” as the spreading of the vaginal lips. E.g., State v. Melendez, 9th Dist. No.

08CA009477, 2009-Ohio-4425; State v. Lucas, 2nd Dist. No. 18644, 2001-Ohio-1350.

       {¶39} As noted in our disposition of Markwell’s first assignment of error, under

the circumstances of the case at bar, there is nothing in the record to show that the he

was prejudiced by the failure to give the instruction that Markwell now claims the trial

court should have given. C.T. testified and demonstrated for the jury that penetration did

in fact occur,

       Q. And I want to talk about the word penetration. Do you know what I

       mean when I say penetration?

       [C.T.] Yes.

       Q. And can you tell me what you think I mean?

       A. Like pushing.

       Q. Did you say pushed in?

       A. Yes.

       ***

       Q. Did you feel anything inside you?

       A. Yes.

       ***

       Q. Demonstrate what you felt.

       A. It’s like (Indicating) just like the tip of your nail.
Muskingum County, Case No. CT2011-0056                                                     14


       Q. Your fingernail?

       A. Yeah.

       ***

       Q. Did you demonstrate with your fingernail it was inside?

       A. Yes.

1T. at 126-127. Thus, C.H. testified that Markwell’s finger penetrated her vaginal cavity.

Accordingly, we find any error in the instructions to the jury was harmless beyond a

reasonable doubt.

       {¶40} Markwell’s second assignment of error is overruled in its entirety.

                                                 III.

       {¶41} In his third assignment of error, Markwell argues that the charges against

him should have been severed and tried in two separate proceedings one for C.T. and

the second for M.H. At the outset, we note that Markwell did not move to sever the

counts for trial; nor did appellant object to the joinder of the cases for trial. Accordingly,

our review is limited to finding plain error.

       {¶42} Crim. R. 52(B) provides that, “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

       {¶43} “[A]n appellate court may, in its discretion, correct an error not raised at

trial only where the appellant demonstrates that (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant’s substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S.
Muskingum County, Case No. CT2011-0056                                                 15


__, 130 S.Ct. 2159, 2010 WL 2025203 (May 24, 2010). (Internal quotation marks and

citations omitted). Accord, State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884

N.E.2d 45, ¶28.

       {¶44} Joinder is appropriate where the evidence is interlocking and the jury is

capable of segregating the proof required for each offense. State v. Czajka, 101 Ohio

App.3d 564, 577-578, 656 N.E.2d 9 (1995). Nonetheless, if it appears that a criminal

defendant would be prejudiced by such joinder, then the trial court is required to order

separate trials. Crim.R. 14.

       {¶45} Prejudice is not demonstrated if one offense would have been admissible

as "other acts" evidence under Evid.R. 404(B) or if the evidence of each crime joined at

trial is simple and direct. State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293(1990).

As 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 to and share[s] common features with the crime in question."

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

syllabus. In particular, evidence of other crimes, wrongs or acts is admissible under this

rule if the evidence shows "proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident." Evidence of other crimes,

wrongs or acts is inadmissible merely to show that an accused has the propensity to

commit crime. Evid.R. 404(B).

       {¶46} When a defendant claims that he or she was prejudiced by the joinder of

multiple offenses, the court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed; and (2) if not, whether the
Muskingum County, Case No. CT2011-0056                                                 16

evidence of each crime is simple and distinct. State v. Schaim, 65 Ohio St.3d 51, 59,

600 N.E.2d 661(1992), citing State v. Hamblin, 37 Ohio St.3d 153, 158-159, 524 N.E.2d

476(1988) and Drew v. United States, 331 F.2d 85(D.C.Cir. 1964). "If the evidence of

other crimes would be admissible at separate trials, any 'prejudice that might result from

the jury's hearing the evidence of the other crime in a joint trial would be no different

from that possible in separate trials,' and a court need not inquire further." Schaim,

supra. quoting Drew v. United States, 331 F.2d at 90. Accordingly, we must determine

the extent to which evidence of each of these crimes would be admissible in other trials

if the counts were severed.

      {¶47} In discussing the dangers associated with admitting other acts evidence in

a case where the offenses included several counts of rape and gross sexual imposition,

the Schaim court stated:

      The admissibility of other acts evidence is carefully limited because of the

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

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

      deserves punishment regardless of whether he or she committed the

      crime charged in the indictment. * * * This danger is particularly high when

      the other acts are very similar to the charged offense, or of an

      inflammatory nature, as is certainly true in this case. The legislature has

      recognized the problems raised by the admission of other acts evidence in

      prosecutions for sexual offenses, and has carefully limited the

      circumstances in which evidence of the defendant's other sexual activity is

      admissible. The forcible rape statute and the gross sexual imposition
Muskingum County, Case No. CT2011-0056                                                   17


       statute both contain subsections that address the admissibility of evidence

       of other sexual activity by either the victim or the defendant. * * *

65 Ohio St.3d at 59-60, 600 N.E.2d 661.

       {¶48} From our review of the evidence, we find: 1) the acts were against family

members, 2) the acts occurred when the children stayed overnight at a residence where

Markwell was present and 3) all the acts occurred when the children were sleeping.

State v. Ickes, 5th Dist. No. 1999AP080052, 2000 WL 874728 (June 13, 2000). These

facts clearly indicate a "scheme, plan or system" negating any claim of accident. Id.

Further, the acts were consecutive in nature, beginning with C.T. and following through

to M.H. Each victim testified separately. The issues were clearly laid out for the jury, and

the jury was instructed that each count and victim should be considered from its own

evidence.

       {¶49} Assuming, arguendo, that the evidence did not fit the "other acts"

exception, it nevertheless fits the second prong of the Schaim test which requires the

evidence of the crime under each indictment to be simple and distinct. 65 Ohio St.3d at

59. In State v. Decker, 88 Ohio App.3d 544, 624 N.E.2d 350(1993) the court found that

the evidence was simple and distinct. The evidence achieved these characteristics in

part because the crimes involved contained different victims and different witnesses,

and therefore, the jury was able to segregate the facts that constituted each crime. Id. at

549.

       {¶50} In this case, the prosecution introduced evidence of each distinct crime.

Both C.T. and M.H. testified at length and in specific detail about how the abuse

occurred, when it began, and how long it continued. Thus, as in Decker, the evidence
Muskingum County, Case No. CT2011-0056                                                    18


was simple and distinct because the facts surrounding each crime were capable of

segregation.

       {¶51} Accordingly, because Markwell was not able to demonstrate that he was

prejudiced by the joinder of claims, he cannot meet the first element of the Schaim test.

Therefore, we do not need to address the remaining elements of the test.

       {¶52} Given the facts sub judice, we find no plain error affecting Markwell's

substantial rights.

       {¶53} Accordingly, Markwell’s third assignment of error is denied.

                                                IV.

       {¶54} In his fourth assignment of error, Markwell claims that his trial counsel was

ineffective for 1).failing to move of acquittal based upon the failure of the state to

present evidence that Markwell was not married to either of the victims; 2).failing to

request a specific jury instruction on the meaning of “penetration” as it refers to a rape

charge and 3). failing to move for a severance of the charges before trial.

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

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

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

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

by counsel's ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

       {¶56} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and
Muskingum County, Case No. CT2011-0056                                               19

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251(2009).

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

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 688, 104 S.Ct. at 2064. This requires showing that counsel made errors 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. at 2064. Counsel also has a duty to

bring to bear such skill and knowledge as will render the trial a reliable adversarial

testing process. Strickland, 466 U.S. at 688, 104 S.Ct. 2052 at 2065.

      Thus, a court deciding an actual ineffectiveness claim must judge the

      reasonableness of counsel's challenged conduct on the facts of the

      particular case, viewed as of the time of counsel's conduct. A convicted

      defendant making a claim of ineffective assistance must identify the acts

      or omissions of counsel that are alleged not to have been the result of

      reasonable professional judgment. The court must then determine

      whether, in light of all the circumstances, the identified acts or omissions

      were outside the wide range of professionally competent assistance. In

      making that determination, the court should keep in mind that counsel's

      function, as elaborated in prevailing professional norms, is to make the

      adversarial testing process work in the particular case. At the same time,

      the court should recognize that counsel is strongly presumed to have

      rendered adequate assistance and made all significant decisions in the

      exercise of reasonable professional judgment.
Muskingum County, Case No. CT2011-0056                                                 20

Strickland 466 U.S. 668 at 689,104 S.Ct. at 2064.

      {¶58} In light of “the variety of circumstances faced by defense counsel [and] the

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

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

considering all the circumstances.” Strickland, 466 U.S. 668 at 689,104 S.Ct. at 2064.

At all points, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”

Strickland, 466 U.S. 668 at 689,104 S.Ct. at 2064.

      {¶59} An appellant must further demonstrate that he suffered prejudice from his

counsel’s performance. See Strickland, 466 U. S. at 691 (“An error by counsel, even if

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

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

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

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

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. To prevail on his ineffective-assistance claim,

appellant must show, therefore, that there is a “reasonable probability” that the Trier of

fact would not have found him guilty.

      {¶60} None of the instances raised by Markwell rise to the level of prejudicial

error necessary to find that he was deprived of a fair trial. Having reviewed the record

that Markwell cites in support of his claim that he was denied effective assistance of

counsel, we find Markwell was not prejudiced by defense counsel’s representation of

him. The result of the trial was not unreliable nor were the proceedings fundamentally

unfair because of the performance of defense counsel.
Muskingum County, Case No. CT2011-0056                                                   21


       {¶61} Because we have found no instances of error in this case, we find

Markwell has not demonstrated that he was prejudiced by trial counsel’s performance.

       {¶62} Markwell’s fourth assignment of error is overruled.

                                                V.

       {¶63} Markwell contends that the trial court erred in overruling his motion to

suppress his interviews with the police.

       {¶64} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law

whether the trial court met the applicable legal standard. See Burnside, supra, citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,

generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review Ornelas, supra. Moreover, due weight should be given “to inferences
Muskingum County, Case No. CT2011-0056                                                22

drawn from those facts by resident judges and local law enforcement officers.” Ornelas,

supra at 698, 116 S.Ct. at 1663.

       {¶65} In order for an accused's statement to be admissible at trial, police must

have given the accused a Miranda warning if there was a custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966). If that

condition is established, the court can proceed to consider whether there has been an

express or implied waiver of Miranda rights. Id., at 476, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694.

       {¶66} A custodial interrogation occurs when a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way and a law

enforcement officer questions that person. Id. “Prior to any questioning, the person must

be warned that he has a right to remain silent, that any statement he does make may be

used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” Id.

       {¶67} In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995), the Court offered the following description of the Miranda custody test:

       Two discrete inquiries are essential to the determination: first, what were

       the circumstances surrounding the interrogation; and second, given those

       circumstances, would a reasonable person have felt he or she was not at

       liberty to terminate the interrogation and leave. Once the scene is set and

       the players' lines and actions are reconstructed, the court must apply an

       objective test to resolve the ultimate inquiry: was there a formal arrest or
Muskingum County, Case No. CT2011-0056                                                     23


       restraint on freedom of movement of the degree associated with a formal

       arrest.

516 U.S., at 112, 116 S.Ct. 457 (internal quotation marks omitted). Accord, Yarborough

v. Alvarado, 541U.S. 652, 653, 124 S.Ct. 2140, 158 L.Ed.2d 938(2004). The police and

courts must “examine all of the circumstances surrounding the interrogation,” Stansbury

v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293(1994), including

those that “would have affected how a reasonable person” in the suspect's position

“would perceive his or her freedom to leave,” Id., at 325, 114 S.Ct. 1526. However, the

test   involves   no   consideration   of   the   particular   suspect's   “actual   mindset.”

Yarborough, 541 U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938. Accord, State v.

Mason, 82 Ohio St.3d 144, 153, 1998-Ohio-370, 694 N.E.2d 932(1998); State v.

Gumm , 73 Ohio St.3d 413, 429, 1995-Ohio-24, 653 N.E.2d 253(1995).

       {¶68} In the case at bar, the following factors weigh against a finding that

Markwell was in custody. Markwell appeared at the police station voluntarily in his own

vehicle accompanied by his wife. There is no suggestion in the record that Markwell

was threatened if he did not appear. Detective Hill read Markwell the standard “Advice

of Rights” form and explained the form to him. After Markwell told Hill that he could not

read or write, Detective Hill took the time to explain Markwell’s rights to him. Markwell

was aware prior to agreeing to come to the station of the nature of the meeting.

Markwell was free to and did in fact return home after the interview.

       {¶69} Other facts point in the opposite direction. Markwell testified that he was

not permitted to speak with his wife. Markwell was never told he was free to leave at

any time during the interview.
Muskingum County, Case No. CT2011-0056                                                  24

      {¶70} In State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d

506(2003), the Ohio Supreme Court noted “[i]t is well established that at a suppression

hearing, ‘the evaluation of evidence and the credibility of witnesses are issues for the

trier of fact.’ State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, citing State

v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 437 N.E.2d 583. The trial court was

free to find the officers' testimony more credible than appellant's. We therefore defer to

the trial court's ruling regarding the weight and credibility of witnesses. State v.

Moore (1998), 81 Ohio St.3d 22, 31, 689 N.E.2d 1.” Brown at 55, 689 N.E.2d 1, 2003-

Ohio-5059 at ¶ 15, 796 N.E.2d at 512.

      {¶71} We conclude that a reasonable person in Markwell's position during the

interview would have understood that he was free to walk away from the questioning by

the officer and leave. State v. Mason, 82 Ohio St.3d 144, 153–154, 694 N.E.2d 932,

1998-Ohio-370(1998).

      {¶72} Markwell argues that because he cannot read or write and because he

had head injuries in the past he felt compelled to speak. Therefore, Markwell contends

that his statements were involuntary.

      {¶73} In Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d

473(1986), the court held that "police over-reaching" is a prerequisite to a finding of

involuntariness. Evidence of use by the interrogators of an inherently coercive tactic

(e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will

trigger the totality of the circumstances analysis. State v. Clark, 38 Ohio St.3d 252, 261,

527 N.E.2d 844, 854(1988).
Muskingum County, Case No. CT2011-0056                                                  25

       {¶74} In the cause sub judice, Markwell does not assert that he was physically

deprived or mistreated while at the police department, nor does the record reveal any

type of physical deprivation. Moreover, there is no evidence that police subjected

Markwell to threats or physical abuse, or deprived him of food, sleep, or medical

treatment. See State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895, 908(1989).

       {¶75} The record is insufficient to establish that Markwell’s “will was overborne”

by the officers’ activities in coming to his home to investigate this crime and in having

Markwell come to the police station to make a statement.

     {¶76}   Based on the foregoing, we find that the trial court did not err in failing to

suppress appellant's oral statements.

     {¶77}   Markwell’s fifth assignment of error is overruled in its entirety.

                                                VI.

     {¶78}   In his sixth assignment of error, Markwell claims he was denied the right to

a fair trial based on cumulative error. Specifically, Markwell alleges that the errors

outlined in his previous assignments of error amount to cumulative error requiring

reversal.

     {¶79}   In State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶

197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105

Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103.

    {¶80}    Here, Markwell cites the doctrine of cumulative error, lists or incorporates

the previous assignments of error, and gives no analysis or explanation as to why or
Muskingum County, Case No. CT2011-0056                                                 26


how the errors have had a prejudicial cumulative effect. Thus, this assignment of error

has no substance under Bethel and Sapp.

    {¶81}    Further, where we have found that the trial court did not err, cumulative

error is simply inapplicable. State v. Carter, 5th Dist. No. 2002CA00125, 2003-Ohio-

1313 at ¶ 37. To the extent that we have found that any claimed error of the trial court

was harmless, or that claimed error did not rise to the level of plain error, we conclude

that the cumulative effect of such claimed errors is also harmless because taken

together, they did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54,

89-90, 2004-Ohio-6235, 818 N.E.2d 229, 270 at ¶ 185.

    {¶82}    As this case does not involve multiple instances of error, Markwell’s sixth

assignment of error is overruled.
Muskingum County, Case No. CT2011-0056                                                 27


                                          Conclusion

    {¶83}    Markwell’s first, second, third, fourth, fifth and sixth assignments of error

are overruled in their entirety and the judgment of the Court of Common Pleas,

Muskingum County, Ohio, is affirmed.

By Gwin, P.J., and

Wise, J., concur;

Hoffman, J., concurs

separately




                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. JOHN W. WISE



WSG:clw 0607
Muskingum County, Case No. CT2011-0056                                                 28


Hoffman, J., concurring

       {¶84} I concur in the majority’s analysis and disposition of Appellant’s

Assignments of Error I, II, IV, V and VI.

       {¶85} I further concur in the majority’s disposition of Appellant’s Assignment of

Error III. The majority finds the facts clearly indicate a scheme, plan or system negating

any claim of accident. I interpret this to mean it finds the evidence admissible under

Evid.R. 404(B). However, the Appellant herein denied the charges, he did not claim

accident. I find the evidence is not admissible under the rule. For a similar analysis see

this Court’s opinion in State v. Slaven, 2010-Ohio-6400. And we noted in Slaven, the

similarities between the sexual abuses committed against each victim and the

inflammatory nature of the offenses elevate the risk of prejudice.

       {¶86} While the evidence as it pertains to each victim may have been direct, I

am not convinced it was simple nor distinct.       The testimony of each victim as to

Appellant’s conduct was similar in nature. The fact-finder would have had a difficult

time looking at the evidence supporting each offense as simple and distinct because the

temptation would be great to respond to the evidence emotionally rather than rationally.

See State v. Frazier, 2004-Ohio-1536, for a similar analysis.

       {¶87} Despite the above, I find the overall weight of the evidence in this case

substantial and more than sufficient to overcome any prejudice Appellant may have

suffered as a result of the joinder.



                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
[Cite as State v. Markwell, 2012-Ohio-3096.]


             IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
ALAN H. MARKWELL                                 :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. CT2011-0056




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

judgment of the Court of Common Pleas, Muskingum County, Ohio, is affirmed. Costs

to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN


                                                     _________________________________
                                                     HON. JOHN W. WISE
