[Cite as State v. Chamberlain, 2014-Ohio-4619.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BROWN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :    CASE NO. CA2013-04-004

                                                  :           OPINION
   - vs -                                                      10/20/2014
                                                  :

LARRY CHAMBERLAIN,                                :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
              Case Nos. CRI 2011-2249, CRI 2011-2250, CRI 2012-2247



Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Christine D. Tailer, P.O. Box 14, Georgetown, Ohio 45121, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Larry Chamberlain, appeals his convictions in the Brown

County Court of Common Pleas for four counts of rape. For the reasons discussed below,

we affirm his convictions.

        {¶ 2} In November 2011, Chamberlain was indicted for five counts of rape. In

September 2012, he was indicted on an additional count of rape and one count of complicity

to gross sexual imposition. The alleged victim of all charged offenses was S.R., the 12-year-
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old daughter of Chamberlain's girlfriend. Chamberlain maintained that he was not guilty.

       {¶ 3} In February 2013, the state dismissed three of the seven charges against

Chamberlain. The case proceeded to a jury trial in March 2013 on four counts of rape: one

each for anal intercourse, vaginal intercourse, fellatio, and cunnilingus with S.R.

       {¶ 4} The state established the following foundational facts at trial through the

testimony of several employees of the school S.R. attended, the Brown County Department

of Jobs and Family Services ("DJFS"), and the Ripley Police Department. L.R. ("Mother"),

the mother of S.R., shared an apartment with Chamberlain in Ripley, Ohio. S.R. moved in

with the couple in July 2011 after she was removed from her grandfather's care. She was 12

years old at the time, and had an IQ of 54. Tammy Leahy, the teacher who worked one-on-

one with S.R. at school, stated that S.R. had a "Functional Mental Disability" which caused

difficulty with, among other things, the sequencing of events.

       {¶ 5} On August 31, 2011, S.R. informed friends and a counselor at school that

Chamberlain had touched her vagina. The school immediately reported the allegation to

DJFS. Later that afternoon, DJFS investigator Sheri Tabor, accompanied by Ripley Police

Chief Harvey Bowman, visited Mother and Chamberlain at their apartment. Tabor advised

the couple that DJFS had received a report that Chamberlain had molested S.R., and

obtained Mother's permission to pick S.R. up from school and speak with her about the

allegations. Tabor took S.R. directly from school to a foster home.

       {¶ 6} Later that evening, S.R. was transported to Cincinnati Children's Hospital for a

physical examination in connection with the allegations she made against Chamberlain. Two

days later, on September 2, 2011, she returned to Children's Hospital for a forensic interview

with a social worker at the Mayerson Center for Safe and Healthy Children. Thereafter, S.R.

remained in foster care.

       {¶ 7} Mina Devine was the Pediatric Sexual Assault Nurse Examiner on duty at
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Children's Hospital when S.R. was admitted for an examination on August 31, 2011. Devine

testified that her examination revealed that S.R.'s hymen was "irregular shaped," and that

there was a "line type abrasion on her clitoris" and "a slight redness towards her anal area."

Devine also testified that she used a Sexual Assault Evidence Collection Kit ("rape kit") that

was eventually sent through the Ripley Police Department to the Bureau of Criminal

Investigation ("BCI").

       {¶ 8} Dr. Stephanie Kennebeck, M.D., was the physician on duty at Children's

Hospital when S.R. was admitted. Dr. Kennebeck testified that she examined S.R. at the

same time as Devine, and that her examination revealed a "very jagged and irregular

hymenal ring, which is the redundant skin left from the hymen when there's been penetration

of the vagina." She also testified that S.R. had copious thin and brown discharge in her

vaginal vault, and redness around her clitoris. Dr. Kennebeck stated that based on her

findings, and because the hymnal ring "tends to heal very, very quickly," her opinion was that

S.R.'s vagina had been penetrated within 72 hours of the examination.

       {¶ 9} Cecilia Freihofer was the social worker who conducted the forensic interview

with S.R. at the Mayerson Center on September 2, 2011. Freihofer testified that S.R.

indicated to her that her mom's boyfriend touched her with his penis. She stated that S.R.

used drawings to signify that Chamberlain had put his penis in her mouth, vagina, and "butt."

According to Freihofer, S.R. said that Chamberlain:

              [H]ad put a condom on his penis that was hairy. That he first
              tried to put it in her front * * * but it didn't work, so he put it her
              [sic] butt. * * * She said that he wanted her to suck on his penis
              and that, "nasty stuff, that tasted like sour milk," came out of his
              penis and went down her throat.

       {¶ 10} Sarah Glass was the first BCI evidence technician to work with the samples

from S.R.'s rape kit. She testified that no semen was found on S.R.'s vaginal, anal, or oral

swabs, but that amylase was present on S.R.'s breast swabs. According to Glass, amylase
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is a component of saliva. She said that although it is also present in other bodily fluids,

amylase is about a thousand times more concentrated in saliva.

       {¶ 11} Emily Draper, a DNA analyst with BCI, then testified that her testing of the DNA

from the amylase on S.R.'s breast swabs revealed two different DNA profiles. She stated

that one of the DNA profiles was consistent with S.R., and that the other "could" have been

from another person. Draper testified that the DNA profile from the other person was not

developed enough for a comparison with other DNA samples.

       {¶ 12} Next, Adam Garver, a forensic scientist with BCI, testified about the test he ran

on the DNA from S.R.'s breast swab. He stated that the unknown DNA sample contained a

partial Y chromosome DNA profile. Therefore he concluded, with reasonable scientific

certainty, that the DNA was from a male human being. However, Garver, too, stated that the

DNA profile was insufficient for comparison purposes.

       {¶ 13} After the evidence was put on regarding the DNA testing, Mother testified as to

her firsthand knowledge of Chamberlain's sexual encounters with S.R. Prior to trial, Mother

had entered a plea deal with the state wherein in exchange for her truthful testimony against

Chamberlain, the state would accept her guilty plea to one count of gross sexual imposition

and drop five counts of complicity to rape she faced for her involvement in Chamberlain's

encounters with S.R..     At trial, Mother's testimony reflected some initial reluctance to

incriminate either Chamberlain or herself. However, after the trial court took a short recess to

remind her that the plea deal she received would be withdrawn without her truthful testimony,

Mother proved much more forthcoming.

       {¶ 14} Mother testified to an encounter in which Chamberlain performed cunnilingus

on S.R. in Mother's presence. She also recalled a time that she entered the apartment and

found Chamberlain zipping up his pants while leaving S.R.'s room, followed by S.R. who was

straightening up her pants. She remembered telling Chamberlain on that occasion that the
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encounters had to stop or the state would take her kids away. Finally, Mother testified about

the night that she passed out drunk and awoke to find S.R. face down on the bed with

Chamberlain penetrating her from behind. Mother stated that S.R. came to her after this

encounter with complaints of vaginal bleeding.

      {¶ 15} The state then presented S.R.'s testimony via video deposition. On direct

examination, S.R. was presented with an anatomically correct picture of a female and asked

to identify the parts of her body that Chamberlain had touched.          She indicated that

Chamberlain touched her "bottom," vagina, nipples, and mouth. S.R. was then presented

with an anatomically correct picture of a male, and asked to identify the parts of

Chamberlain's body that he used to touch her. She indicated that his mouth touched her

nipples and her vagina, and that his penis touched her bottom, vagina, and mouth. She

further testified that his penis went "all the way up" her vagina and "inside" her mouth and

bottom, and that his mouth was "pretty much on the outside and the inside sometimes [of her

vagina], but it was pretty much both."

      {¶ 16} On cross-examination, S.R. was not able to give a coherent account of when or

in what order her sexual encounters with Chamberlain occurred, but she did provide detailed

descriptions of what transpired during the encounters. S.R. testified about an occasion when

Mother was away at the store and Chamberlain had her lie down on his bed, and "[h]e put his

thing inside of my bottom, and my front, and in my mouth" but stopped when he heard

Mother come home. S.R. stated that Chamberlain did not have a condom on during this

encounter, and noted that afterwards she went to the bathroom and found blood and "yellow

stuff" when she wiped. She said that he usually used a condom.

      {¶ 17} S.R. also testified about another occasion that Mother was at the store. On this

occasion, Chamberlain and S.R. were playing cards on the floor, when Chamberlain took his

pants off, stood up, and put his penis in her mouth. S.R. stated that when she tried to pull
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her head away, he pinched her hand and put both of his hands on her neck to keep her head

still. When asked if Chamberlain had done this before, S.R. responded that he had, but that

she didn't know how many times.

       {¶ 18} Finally, S.R. testified about "the last time" she had intercourse with

Chamberlain, an occasion preceded by a "weird" card game with Chamberlain and Mother in

which people "take off their pants and their clothes * * * and then everything else." S.R.

recalled that after the game, Mother left the room to cook dinner. S.R. stated that when

Mother returned to the room, Chamberlain's "thing was in mine, and then he was * * * on top

of me. * * * When he was putting it in me he was like licking my nipples." S.R. testified that

this made Mother angry, and that when S.R. awoke the next morning Mother threatened to

disown her. According to S.R., this was the morning that she disclosed her encounters with

Chamberlain to her friends at school.

       {¶ 19} In his defense, Chamberlain called only one witness, Diana Walker. Walker is

Mother's aunt and S.R.'s great aunt. She testified that she stopped to visit S.R. and Mother

at the apartment in Ripley three or four times a week, and that she was never given reason to

believe anything was amiss. She stated that she would always ask S.R. how she was being

treated, and that S.R. would always respond Chamberlain and Mother were being good to

her. Additionally, Walker noted that her mother, Mother's grandmother and S.R.'s great

grandmother, stayed at the Ripley apartment for nearly a week and did not report anything

"untoward." Lastly, Walker testified that Mother had a reputation for being "slower" than the

others, and that she hardly ever told the truth.

       {¶ 20} The jury returned a guilty verdict on all four counts, and Chamberlain was

sentenced to three consecutive terms of life imprisonment, and a fourth term of life

imprisonment to run concurrently. Chamberlain now appeals, raising five assignments of

error. For ease of discussion, we address the assignments of error out of order.
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       {¶ 21} Assignment of Error No. 4:

       {¶ 22} THE TRIAL COURT ERRED IN ALLOWING DR. KENNEBECK TO TESTIFY

AS AN EXPERT IN "CHILD SEXUAL ABUSE."

       {¶ 23} In his fourth assignment of error, Chamberlain claims the trial court erred by

allowing Dr. Kennebeck to testify as an "Expert in Child Sexual Abuse." He notes that Dr.

Kennebeck admitted she had not conducted any research or published in the area of sexual

abuse, and that she was only an examiner. As such, Chamberlain asserts Dr. Kennebeck

was not qualified to render the opinion that S.R. evidenced physical findings consistent with

"sexual assault" within the past 72 hours.

       {¶ 24} At the outset, we note that Chamberlain's argument on appeal mischaracterizes

the trial court's findings with respect to Dr. Kennebeck. Although the state did proffer her as

an "expert in child sexual abuse," after Chamberlain's objection the trial court limited its ruling

to a finding that Dr. Kennebeck was an expert in the respective fields of general pediatric

medicine and pediatric emergency medicine.            This ruling was sufficient to qualify Dr.

Kennebeck to testify as to her expert opinion of S.R.'s physical condition at the time of her

examination at Children's Hospital.

       {¶ 25} "'The qualification of an expert is a matter for determination by the [trial] court

on the facts, and rulings with respect to such matters will ordinarily not be reversed unless

there is a clear showing that the court abused its discretion."' State v. Mack, 73 Ohio St.3d

502, 511 (1995), quoting State v. Maupin, 42 Ohio St.2d 473, 479 (1975). Evid.R. 702

provides that a witness may testify as an expert if she can assist the trier of fact in the search

for truth, and all of the following apply:

              (A) The witness' testimony either relates to matters beyond the
              knowledge or experience possessed by lay persons or dispels a
              misconception common among lay persons;

              (B) The witness is qualified as an expert by specialized
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              knowledge, skill, experience, training, or education regarding the
              subject matter of the testimony;

              (C) The witness' testimony is based on reliable scientific,
              technical, or other specialized information. * * *

See also State v. Cartwright, 12th Dist. Preble No. CA2012-03-003, 2013-Ohio-2156, ¶ 33-

34. The qualifications which may satisfy these requirements are "multitudinous." Mack at

511.

       {¶ 26} Dr. Kennebeck testified that she went to medical school at Northwestern

University Medical School, and graduated in 1996.           She completed her residency in

pediatrics at Baylor College of Medicine in 1999, and a fellowship in pediatric emergency

medicine in 2002. The fellowship in pediatric emergency medicine included training in

pediatric child and sexual abuse. She is certified with the American Board of Pediatrics in

general pediatrics, and she is "sub-boarded" in pediatric emergency medicine. Because the

Board's curriculum in pediatric emergency medicine requires training in sexual abuse, Dr.

Kennebeck's certification required her to perform numerous exams, under the tutelage of a

certified expert, on children alleged to be victims of sexual abuse.

       {¶ 27} Dr. Kennebeck is currently employed in the Division of Emergency Medicine at

Cincinnati Children's Hospital, a position she has held for the past ten years. In that position,

she works between 50 and 60 hours per week, splitting her time between clinical duties in the

Emergency Department and academic duties with the Division of Emergency Medicine.

During her tenure at Children's Hospital, she estimates that she has performed hundreds of

exams on children suspected of being sexually abused.

       {¶ 28} Chamberlain conducted a voir dire, during which Dr. Kennebeck acknowledged

there is a specialty for pediatric sexual abuse medicine, and that she has not been certified in

that specialty. She also acknowledged that she has not participated as a researcher or a

primary investigator in any of the current academic studies on child sexual abuse. Yet Dr.
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Kennebeck noted that there are very few practitioners in the area of pediatric sexual abuse

medicine around the country, and that as part of her job she stays up to date on the literature

regarding pediatric abuse. Though she has not published on the academic side, Dr.

Kennebeck testified that she does consider the examination of children suspected to be

victims of sexual abuse to be one of her specialties.

        {¶ 29} We find the trial court did not abuse its discretion by finding Dr. Kennebeck's

ten years of professional experience and extensive training were sufficient to qualify her as

an expert in the areas of general pediatrics and pediatric emergency medicine. We further

find that her training and experience, and her direct physical examination of S.R., qualified

her to provide an opinion as to whether S.R.'s physical condition was consistent with her

allegations against Chamberlain. See Mack, 73 Ohio St.3d at 511.

        {¶ 30} Chamberlain's fourth assignment of error is overruled.

        {¶ 31} Assignment of Error No. 5:

        {¶ 32} THE TRIAL COURT ERRED IN ITS APPLICATION OF R.C. 2907.02(D),

OHIO'S RAPE SHIELD LAW.

        {¶ 33} In his fifth assignment of error, Chamberlain argues that the trial court erred in

applying R.C. 2907.02(D), Ohio's rape shield law, to exclude evidence that S.R. was sexually

abused by someone else before she came to live in his apartment. Specifically, Chamberlain

equates the condition of a torn hymen with having a disease, and asserts that because the

state's evidence of S.R.'s torn hymen implies that it was torn during vaginal intercourse with

him, the rape shield law would allow him to introduce evidence pointing toward a preexisting

tear.

        {¶ 34} Prior to S.R. taking the stand, the trial court heard argument about

Chamberlain's proposed line of questioning regarding the sexual abuse that S.R. suffered

prior to living with Chamberlain. Chamberlain proffered that while S.R. was living with her
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grandfather in Kentucky, Mother's ex-boyfriend was prosecuted and found guilty in a

Kentucky court of sexually abusing S.R., and that during her interview with Freihofer, S.R.

stated the ex-boyfriend had abused her between 20 and 25 times. Chamberlain argued that

this was probative evidence because it raised the possibility that S.R.'s hymen was torn by

the earlier abuse. However, Chamberlain did not offer any medical evidence to support his

theory.

       {¶ 35} The rape shield statute provides, in pertinent part, that "[e]vidence of specific

instances 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 * * *." R.C. 2907.02(D). If the trial court finds that the evidence falls

within one of the law's enumerated exceptions, then the court must further determine whether

the probative value of the evidence outweighs its prejudicial nature. State v. Guthrie, 86 Ohio

App.3d 465, 467 (12th Dist.1993), citing State v. Leslie, 14 Ohio App.3d 343, 346 (2nd

Dist.1984). In making this determination, the trial court must "'balance the state interest

which the statute is designed to protect against the probative value of the excluded

evidence.'" State v. N.D.C., 10th Dist. Franklin No. 06AP-790, 2007-Ohio-5088, ¶ 22,

quoting State v. Gardner, 59 Ohio St.2d 14, 17 (1979). The ultimate decision to admit or

exclude the evidence is within the trial court's sound discretion. State v. Ashcraft, 12th Dist.

No. CA97-11-217, 1998 WL 667657, *2 (Sept. 28, 1998), citing Guthrie at 467.

       {¶ 36} Despite Chamberlain's argument to the contrary, a torn hymen is not the

equivalent of, or even analogous to, a disease. See State v. Trent, 5th Dist. Licking No.

05CA101, 2006-Ohio-3132, ¶ 13. As the Third Appellate District has noted:

               [Whereas] [d]isease is defined as "* * * a pathological condition
               of the body that presents a group of symptoms peculiar to it and
               which sets the condition apart as an abnormal entity * * * an
               "injury" is described as "[t]rauma or damage to some part of the
               body."
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State v. Little, 3d Dist. Seneca No. 13-01-40, 2002-Ohio-5094, ¶ 10, quoting Taber's

Cyclopedic Medical Dictionary 415, 730 (14th Ed.1981). A torn hymen would seem to fit the

definition of "injury," as opposed to "disease." Little at ¶ 10 (noting that no case law

espousing the contrary view could be found).

       {¶ 37} Perhaps more to the point, even if the trial court had found that a torn hymen

falls under the "disease" exception to the rape shield law, Chamberlain's proffered evidence

was of little probative value. To begin with, Chamberlain proffered no medical evidence

supporting his theory that prior sexual abuse could be the source of S.R.'s torn hymen, while

the state's medical expert testified that the hymen was likely torn during vaginal penetration

that occurred within 72 hours of the exam. See Ashcraft at *3 (finding no abuse of discretion

in excluding evidence of prior sexual abuse where the appellant failed to present medical

evidence regarding the irregularity in the victim's hymen). Moreover, the state's evidence

regarding the torn hymen was offered to support the occurrence of recent vaginal

penetration, not to disclose the identity of the perpetrator.

       {¶ 38} Therefore, we find that the trial court did not abuse its discretion by excluding,

under the rape shield law, evidence that S.R. suffered sexual abuse prior to living with

Chamberlain. Chamberlain's fifth assignment of error is overruled.

       {¶ 39} Assignment of Error No. 1:

       {¶ 40} APPELLANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF

TRIAL COUNSEL.

       {¶ 41} In his first assignment of error, Chamberlain argues that his trial counsel

committed so many errors that her representation, taken as a whole, constituted ineffective

assistance of counsel. Specifically, Chamberlain asserts that his counsel (1) helped the state

make its case by bringing forth more damaging facts on cross-examination than were elicited

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during the state's direct examination, (2) failed to object to improper hearsay testimony and

improper expert testimony, and (3) failed to make proper use of rape shield exceptions to

impeach S.R.'s testimony. Chamberlain claims the combined effect of these errors was so

serious as to deprive him of a fair trial.

       {¶ 42} To prevail on an ineffective assistance of counsel claim, an appellant must

satisfy the two-prong Strickland test. State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989),

citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). He must establish

both that his trial counsel's performance fell below an objective standard of reasonableness,

and that counsel's deficient performance prejudiced him to the point of depriving him of a fair

trial. State v. Setty, 12th Dist. Clermont No. CA2013-06-049 and -050, 2014-Ohio-2340, ¶

58, citing Strickland at 688. A reviewing court may approach a Strickland analysis starting

with either prong of the test, and an appellant's failure to satisfy one prong of the test negates

the court's need to consider the other. Bradley at 143, citing Strickland at 697.

                     1. Cross-examination of the State's Witnesses

       {¶ 43} Chamberlain cites four separate instances in which defense counsel's cross-

examination of a witness elicited facts that Chamberlain considers to be more damaging than

those elicited during the state's examination. First, he notes that Sheri Tabor, an investigator

with DJFS, had only testified on direct that she had responded to a report of abuse, but that

questioning on cross-examination led her to reveal S.R. had pointed to her vagina and stated

Chamberlain "put his thing in her." Second, he claims that but for the cross-examination of

Freihofer, the forensic interviewer at the Mayerson Center, the jury would not have been

exposed to a story S.R. told Freihofer about the sexual encounter that occurred when

Chamberlain sent Mother to the store because he did not have a "square packet" (i.e., a

condom).     Third, Chamberlain notes that it was only on cross-examination that Dr.


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Kennebeck testified with regard to the redness of S.R.'s clitoris, the abrasion on S.R.'s

hymen, and a notation in the medical records about a scratch on S.R.'s buttocks. Finally,

Chamberlain points out that all of S.R.'s graphic testimony about the alleged sexual

encounters was elicited on cross-examination.

       {¶ 44} "The scope of cross-examination falls within the ambit of trial strategy, and

debatable trial tactics do not establish ineffective assistance of counsel." State v. Conway,

109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101. Additionally, in evaluating trial counsel's

performance, the reviewing court must indulge a strong presumption that counsel rendered

adequate assistance and exercised reasonable professional judgment. Id. at ¶ 101, citing

Strickland at 689. See also Setty, 2014-Ohio-2340 at ¶ 60.

       {¶ 45} In the present case, the strategy employed by Chamberlain's trial counsel was

to attempt to create reasonable doubt by drawing out the inconsistencies in the evidence

regarding S.R.'s alleged sexual encounters with Chamberlain. Counsel questioned Tabor,

the DJFS investigator, more pointedly about S.R.'s initial statement regarding Chamberlain

because counsel was trying to demonstrate that, at the outset of the investigation, S.R.'s

allegations were merely that Chamberlain touched her. Counsel further questioned Freihofer

about the forensic interview at the Mayerson Center because she was trying to show both

internal inconsistencies in the story S.R. told to Freihofer, and inconsistencies between the

account to Freihofer and S.R.'s testimony at trial. Counsel sought detailed information from

Dr. Kennebeck because there was an apparent inconsistency between observations about

S.R. that Dr. Kennebeck recorded in her medical chart, and observations recorded by the

examining doctor on the next shift. Finally, counsel went so deeply into the graphic details in

her cross-examination of S.R. because she was attempting to show both that S.R. was

confused, and that her story was inconsistent.

       {¶ 46} Under the circumstances, defense counsel's strategy was reasonable. See
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State v. Smallwood, 12th Dist. Butler No. CA95-12-209, 1996 WL 586772, *3 (Oct. 14, 1996)

(noting trial counsel's decisions on cross-examination are presumed to be the product of

sound trial strategy).

                         2. Failure to Object to Improper Testimony

       {¶ 47} Chamberlain believes that his trial counsel was ineffective for failing to object to

Ripley Police Chief Harvey Bowman's hearsay testimony and to the opinion testimony of BCI

analyst, Emily Draper. He asserts his counsel should have raised a hearsay objection when

Chief Bowman testified to the content of what S.R. told the school principal and Tabor, and

when Chief Bowman testified as to Chamberlain's alleged state of mind when he and Tabor

visited Chamberlain's apartment. Additionally, Chamberlain claims that his counsel should

have objected to Draper's testimony as contrary to Evid.R. 702(C) because she testified that

the DNA from the amylase on S.R.'s breast swab "could" be from another person.

       {¶ 48} "Failure to make objections does not automatically constitute ineffective

assistance of counsel * * *." State v. Homer, 12th Dist. Warren No. CA2003-12-117, 2006-

Ohio-1432, ¶ 15, citing State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 168. Even if

we were to agree with Chamberlain that an objection may have been successful based on

the inadmissibility of either Chief Bowman's or Draper's testimony, we cannot say that trial

counsel's failure to object was anything more than trial strategy. State v. Boeddeker, 12th

Dist. Clermont No. CA2009-05-029, 2010-Ohio-106, ¶ 18. Chamberlain's counsel may have

believed that an objection to Chief Bowman's testimony would have unduly focused the jury's

attention on the information, or that an objection was not worth the risk of antagonizing the

jury. Homer at ¶ 15; Boeddeker at ¶ 20. She may also have believed that objecting to

Draper's testimony would have provoked the state, either on re-direct of Draper or with its

other BCI expert witnesses, to seek elaboration on the results of the DNA testing to bolster its


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case. See State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, ¶ 83.

       {¶ 49} Further, even assuming arguendo that counsel was ineffective, Chamberlain

has not clearly demonstrated that his counsel's failure to object resulted in prejudice in either

instance. Homer at ¶ 15; Boeddeker at ¶ 21-22. To show prejudice, the appellant must

demonstrate a reasonable probability that, but for counsel's errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694. With respect to both

Chief Bowman and Draper, the testimony in question was redundant. Chief Bowman's

hearsay testimony was largely consistent with testimony that had already been given by

Tabor, and was later repeated by staff members at S.R.'s school. As to the DNA evidence, in

subsequent testimony Draper affirmed that she could state with reasonable scientific

certainty that the DNA was from another human being. Moreover, her testimony was

consistent with the expert testimony of forensic scientist Adam Garver, whose analysis of

S.R.'s breast swab revealed that the unknown DNA profile came from a male human being.

                                  3. Impeachment of S.R.

       {¶ 50} Finally, Chamberlain argues that his trial counsel did not make effective use of

rape shield exceptions to impeach S.R. He notes that the trial court had ruled to allow the

use of (1) a statement by S.R.'s grandfather that S.R. is not always truthful, (2) a report from

2007 that S.R. had made unsubstantiated allegations of sexual abuse against her

grandfather, (3) a report from 2008 that S.R. had made unsubstantiated allegations of sexual

contact between her and her brother, and (4) S.R.'s history of lying. Chamberlain argues that

the use of this evidence would have "clearly benefitted" his case.

       {¶ 51} Whether or not the presentation of certain evidence would have "clearly

benefitted" an appellant's case is not the standard for discerning whether appellant was

prejudiced by the ineffective assistance of trial counsel. As noted above, to show prejudice

an appellant must demonstrate a reasonable probability that, but for counsel's errors, the
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result of the proceeding would have been different. Strickland at 694. Chamberlain has not

met this burden. S.R.'s claims were corroborated by Mother's testimony, the rape kit analysis

by BCI scientists, the testimony of medical personnel who examined S.R. in the hours

immediately following S.R.'s last sexual encounter with Chamberlain, and the testimony of

the social worker who conducted a forensic interview with S.R. two days after her medical

examination.

       {¶ 52} Moreover, decisions about what evidence to present and which witnesses to

call are committed to trial counsel's professional judgment. State v. Williams, 99 Ohio St.3d

493, 2003-Ohio-4396, ¶ 127, citing State v. Keith, 79 Ohio St.3d 514, 530 (1997). Here,

Chamberlain's counsel made the deliberate decision not to pursue a strategy of impugning

S.R.'s character, but to focus instead on drawing out the inconsistencies in her story. This

was not an unreasonable trial strategy.

       {¶ 53} Chamberlain's first assignment of error is overruled.

       {¶ 54} Assignment of Error No. 2:

       {¶ 55} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 56} Chamberlain argues in his second assignment of error that the evidence offered

against him, if viewed objectively, weighs heavily in favor of his acquittal. He asserts that

S.R.'s cognitive impairment led to an account of the alleged sexual encounters that was

confused and disjointed, and that the other testimony offered against him was highly

contradictory. He therefore contends that the jury's verdict was determined by the graphic

nature of the evidence, not its weight.

       {¶ 57} A manifest weight challenge 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.


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State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 35, citing, State v.

Thompkins, 78 Ohio St.3d 380, 387 (1997). To determine whether a conviction is against the

manifest weight of the evidence, the appellate court must look at the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its

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

and a new trial ordered. Setty, 2014-Ohio-2340 at ¶ 83.

       {¶ 58} In conducting its review, the appellate court must be mindful that the original

trier of fact was in the best position to judge the credibility of witnesses and the weight to be

given the evidence. State v. Kilbarger, 12th Dist. Fayette No. CA2013-04-013, 2014-Ohio-

2341, ¶ 7, citing State v. Bailey, 12th Dist. Butler No. CA2002-03-057, 2003-Ohio-5280, ¶ 22.

Indeed, Section 3(B)(3) of Article IV of the Ohio Constitution provides that no judgment

resulting from a trial by jury shall be reversed on the weight of the evidence except by the

concurrence of all three appellate judges hearing the cause. "It is obvious that one of the

underlying purposes of [this provision] is to preserve the jury's role with respect to issues

surrounding the credibility of witnesses." Thompkins, 78 Ohio St.3d at 389.

       {¶ 59} Chamberlain was convicted of four counts of rape in violation of R.C.

2907.02(A)(1)(b), which provides that "[n]o person shall engage in sexual conduct with

another who is not the spouse of the offender * * * when * * * [t]he other person is less than

thirteen years of age * * *." "Sexual conduct" is defined as:

              vaginal intercourse between a male and female; anal
              intercourse, fellatio, and cunnilingus between persons regardless
              of sex * * *. Penetration, however slight, is sufficient to complete
              vaginal or anal intercourse.

R.C. 2907.01(A).

       {¶ 60} After reviewing the entire record, weighing inferences, and examining the

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credibility of witnesses, we find that Chamberlain's convictions for rape were not against the

manifest weight of the evidence. In her testimony, S.R. demonstrated an adult knowledge of

sexual activity, and described all elements of vaginal intercourse, anal intercourse, fellatio,

and cunnilingus in striking detail. S.R.'s testimony with respect to vaginal intercourse, anal

intercourse, and cunnilingus is corroborated by Mother's testimony regarding her firsthand

knowledge of S.R.'s encounters with Chamberlain.

       {¶ 61} Moreover, S.R.'s testimony with respect to vaginal intercourse is also directly

corroborated by Dr. Kennebeck's opinion that S.R.'s vagina had been penetrated within 72

hours of her examination, and Devine's testimony that S.R. had an "irregular shaped" hymen.

S.R.'s testimony regarding anal intercourse and fellatio is consistent with the information she

provided to Freihofer during her forensic interview at the Mayerson Center. And S.R.'s

account of the last sexual encounter with Chamberlain, during which "he was putting it in me

[and] was like licking my nipples," is consistent with BCI's findings of amylase from a male

human being on one of S.R.'s breast swabs.

       {¶ 62} Hence, while it is true that the evidence was graphic and S.R.'s testimony was

confused at points, the state presented corroborating testimony, as well as medical and

scientific evidence, that amply support the jury's determination of Chamberlain's guilt. "It is

well-established that when 'conflicting evidence is presented at trial, a conviction is not

against the manifest weight of the evidence simply because the trier of fact believed the

prosecution testimony.'" State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-

Ohio-3410, ¶ 35, quoting State v. Guzzo, 12th Dist. Butler No. CA2003-09-232, 2004-Ohio-

4979, ¶ 13.

       {¶ 63} Chamberlain's second assignment of error is overruled.

       {¶ 64} Assignment of Error No. 3:

       {¶ 65} THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT MEGING [SIC]
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TOGETHER THE FOUR RAPE CHARGES, AS ALLIED OFFENSES OF SIMILAR IMPORT,

BASED ON THE ACTUAL TRIAL EVIDENCE.

       {¶ 66} In his third assignment of error, Chamberlain argues the four rape counts

should have been merged as allied offenses of similar import. He asserts that the single act

of engaging in sex, flowing from cunnilingus, to fellatio, to vaginal intercourse, to anal

intercourse, would not amount to different encounters, but only "a single act performed with a

single state of mind."

       {¶ 67} Chamberlain never raised the issue of merger to the trial court. Therefore, this

court will review Chamberlain's allied offenses argument for plain error. State v. Pearce, 12th

Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 14. An alleged error is plain error

only if it is obvious, and "'but for the error, the outcome of the trial clearly would have been

otherwise.'" State v. Calhoun, 12th Dist. Fayette No. CA2013-05-014, 2014-Ohio-3662, ¶ 28,

quoting State v. Blake, 12th Dist. Butler No. CA2011-07-130, 2012-Ohio-3124, ¶ 25.

       {¶ 68} R.C. 2941.25, the statute governing allied offenses of similar import, provides:

              (A) Where the same conduct by defendant can be construed to
              constitute two or more allied offenses of similar import, the
              indictment or information may contain counts for all such
              offenses, but the defendant may be convicted of only one.

              (B) Where the defendant's conduct constitutes two or more
              offenses of dissimilar import, or where his conduct results in two
              or more offenses of the same or similar kind committed
              separately or with a separate animus as to each, the indictment
              or information may contain counts for all such offenses, and the
              defendant may be convicted of all of them.

In other words, the statute "prohibits the imposition of multiple punishments for the same

criminal conduct." State v. Ozevin, 12th Dist. Clermont No. CA2012-06-044, 2013-Ohio-1386,

¶ 9.

       {¶ 69} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme


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Court outlined a two-part test for identifying allied offenses of similar import under R.C.

2941.25. The first part requires the reviewing court to ask whether it is possible to commit

the offenses at issue with the same conduct. Johnson at ¶ 48. The court should not ask

whether committing one offense would always result in the commission of the other, but

simply whether it could result in the commission of the other. Id.

       {¶ 70} If the first part is answered in the affirmative, the reviewing court must proceed

to the second part of the test and ask whether the offenses were actually committed by the

same conduct; "i.e., a single act, committed with a single state of mind." State v. Smith, 12th

Dist. Clermont No. CA2012-01-004, 2012-Ohio-4523, ¶ 13, citing Johnson at ¶ 49. If both

parts of the test are answered in the affirmative, the offenses must be merged as allied

offenses of similar import under R.C. 2941.25(A). Smith at ¶ 13, citing Johnson at ¶ 50.

However, if "the commission of one offense [would] never result in the commission of the

other, or if the offenses [were] committed separately, or if the defendant [had] a separate

animus for each offense, then * * * the offenses will not merge." Johnson at ¶ 51.

       {¶ 71} In the present case, the jury found that Chamberlain engaged in fellatio,

cunnilingus, vaginal intercourse, and anal intercourse with S.R.. It is well-established that

distinct, different kinds of sexual activity constitute separate offenses for sentencing

purposes. State v. Accorinti, 12th Dist. Butler No. CA2012-10-205 and CA2012-11-221,

2013-Ohio-4429, ¶ 14-16, citing State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-

358, ¶ 9 (involving digital penetration of the vagina, fellatio, and vaginal intercourse). See

also State v. Hernandez, 12th Dist. Warren No. CA2010-10-098, 2011-Ohio-3765, ¶ 48-50

(involving vaginal intercourse, cunnilingus, and anal intercourse). "Each act is a further

denigration of the victim's integrity and a further danger to the victim." State v. Barnes, 68

Ohio St.2d 13, 19 (1981) (Celebrezze, C.J., concurring).


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      {¶ 72} Because Chamberlain's four rape offenses involved distinct sexual acts, the trial

court did not commit plain error by failing to merge the offenses for sentencing.

Chamberlain's third assignment of error is overruled.

      {¶ 73} Judgment affirmed.


      S. POWELL and M. POWELL, JJ., concur.




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