State v. Stacey , 2009 Ohio 3816 ( 2009 )

[Cite as State v. Stacey, 2009-Ohio-3816.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-08-44
v.
PAUL N. STACEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 07-CR-0207
Judgment Affirmed
Date of Decision: August 3, 2009
APPEARANCES:
Allison M. Lawrence for Appellant
Rhonda L. Best for Appellee
WILLAMOWSKI, J.
{¶1} The defendant-appellant, Paul N. Stacey, appeals the judgment of
the Seneca County Common Pleas Court convicting him of rape and ordering him
to serve a mandatory life sentence. On appeal, Stacey contends that Senate Bill 10
violates the ex post facto clause of the United States Constitution and the
retroactivity clause of the Ohio Constitution; that the trial court erred by not
instructing the jury on the lesser-included-offense of gross sexual imposition; that
the trial court erred by allowing the state to amend the indictment; and that he had
the ineffective assistance of trial counsel. For the reasons stated herein, the
judgment of the trial court is affirmed.
{¶2} On September 22, 2006, at approximately 5:30 or 5:45 a.m., Joleen
L. took her five-year old daughter, T.L., to the home shared by Stacey and his
wife, Kim, who babysat T.L. until she left for school. When T.L. arrived at
Stacey’s home, he got out of bed to watch her so Kim could continue to sleep. On
the couch in the living room, Stacey inserted his penis into her vagina and
ejaculated. T.L. went to school that day, and when she came home, she disclosed
the rape to her mother’s live-in boyfriend. Late that night, T.L. was taken to a
hospital in Toledo, Ohio, where a sexual assault nurse examiner completed an
examination. Forensic testing indicated the presence of Stacey’s DNA in T.L.’s
underwear and in her vaginal opening.
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{¶3} On July 31, 2007, a complaint was filed against Stacey alleging a
violation of R.C. 2907.02(A)(1), (B), rape. Stacey waived a preliminary hearing,
and on November 15, 2007, the Seneca County Grand Jury indicted him on one
count of rape, a violation of R.C. 2907.02(A)(1)(b), (B). Also on November 15,
2007, the court granted the state’s motion to amend the indictment to indicate that
the offense was a first-degree felony. On November 27, 2007, Stacey entered a
plea of not guilty at arraignment. During arraignment, the state made an oral
motion to amend the indictment, which had formerly indicated that the victim was
the spouse of the offender, to charge that the victim was not the spouse of the
offender. Defense counsel did not oppose the motion, and the court allowed the
amendment. A written motion was filed by the state on November 28, 2007,
which the court granted on November 29, 2007.
{¶4} The case culminated in a four-day jury trial. On November 20,
2008, the jury found Stacey guilty and found that the victim had been under the
age of 10 at the time of the offense. Immediately following the verdict, the court
held a joint sexual offender classification hearing and sentencing hearing. The
court classified Stacey as a Tier III sex offender and ordered him to serve a
mandatory term of life imprisonment. Stacey appeals the judgment of the trial
court, raising seven assignments of error.
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First Assignment of Error
The trial court’s retroactive application of Senate Bill 10 in
classifying Appellant as a Tier III offender violates the ex post
facto clause of the United States Constitution and the
retroactivity clause of Section 28, Article II of the Ohio
Constitution.
Second Assignment of Error
The trial court committed plain error by failing to instruct the
jury on the lesser-included offense of gross sexual imposition.
Third Assignment of Error
Insofar as the second assignment of error may have been waived
by trial counsel’s failure to request an instruction on the lesser-
included offense of gross sexual imposition, Appellant was
denied his constitutional right to effective assistance of counsel.
Fourth Assignment of Error
The trial court committed plain error when it allowed
amendment of the indictment to charge an offense.
Fifth Assignment of Error
Insofar as the fourth assignment of error may have been waived
by trial counsel’s failure to object in the trial court to the fact
that the grand jury never charged Appellant with a crime,
Appellant was denied his constitutional right to effective
assistance of counsel.
Sixth Assignment of Error
Trial counsel’s failure to object to repeated instances of
inadmissible hearsay denied Appellant his constitutional right to
effective assistance of counsel.
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Seventh Assignment of Error
Insofar as the court may deem the above errors non-prejudicial
when taken alone, the cumulative effect of the errors at trial
deprived Appellant of his constitutional right to a fair trial.
{¶5} For ease of analysis, we elect to consider the assignments of error
out of order. In the fourth assignment of error, Stacey contends he was prejudiced
by the state’s amendment of the indictment, which effectively converted a non-
offense to the offense of rape. Stacey argues that such amendment violates R.C.
2901.03(A), which states that conduct does not constitute a criminal offense unless
it is defined as an offense by the General Assembly, and Crim.R. 7(D) because the
amendment effectively changed the name or identity of the crime charged.
Essentially, Stacey argues that the prosecutor usurped the power of the grand jury
in amending the indictment to charge him with a criminal offense. In response,
the state contends that the error in the original indictment was a clerical error, and
its correction thereof did not change the name or identity of the offense charged.
{¶6} The original indictment stated as follows:
On or about the 22nd day of September 2006, in Seneca County,
Ohio, PAUL N. STACEY did engage in sexual conduct with
another, namely Jane Doe, who is his spouse, when the said Jane
Doe was less than thirteen (13) years of age, namely five (5) years
of age, whether or not the said Paul N. Stacey knew the age of
the said Jane Doe.
SPECIFICATION: The Grand Jury do further find and specify
that the victim, Jane Doe, under division (A)(1)(b) of this section
was less than ten (10) years of age at the time of the commission
of the offense, namely five (5) years of age.
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This being in violation of Section 2907.02(A)(1)(b), (B) of the
Ohio Revised Code and against the peace and dignity of the
State of Ohio.
PENALTY: The penalty for this offense is a sentence of life
imprisonment with parole eligibility as stated in R.C. Section
2967.13(A)(5) and/or a fine of up to $20,000.00.
(Emphasis added). Indictment, Nov. 15, 2007. The indictment was amended on
November 15, 2007 to identify the offense as a first-degree felony. At Stacey’s
arraignment on November 27, 2007, the court indicated that “there was an oral
motion to amend the indictment.” Hearing Tr., Mar. 5, 2009, at 4:14-15. Defense
counsel stated that there was no objection to the amendment, and the court granted
the motion. Id. at 4:16-18. The state filed a written motion to amend the
indictment on November 28, 2007, and in its journal entry of November 29, 2007,
the court amended the language of the indictment from “who is his spouse” to “not
his spouse.”
{¶7} Since an objection was not raised in the trial court, and since any
alleged error in this case did not “result in multiple errors that [were] inextricably
linked to the flawed indictment[,]” we must use the plain-error standard. State v.
Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, at ¶ 7, citing State
v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, at ¶ 23. Plain
error will be recognized “‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” State v.
Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, quoting State v. Long
(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.
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Plain error will exist if the trial court deviated from a legal rule, the error
constituted an obvious defect in the proceedings, and the error affected a
substantial right of the accused. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-
68, 759 N.E.2d 1240 (internal citations omitted).
{¶8} Crim.R. 7(D) allows a trial court to amend an indictment “at any
time” so long as “no change is made in the name or identity of the crime charged.”
See also R.C. 2941.30. “An amendment to the indictment that changes the name
or identity of the crime is unlawful whether or not the defendant was granted a
continuance to prepare for trial; further, a defendant need not demonstrate that he
suffered any prejudice as a result of the forbidden amendment.” State v.
Fairbanks, 172 Ohio App.3d 766, 2007-Ohio-4117, 876 N.E.2d 1293, at ¶ 21,
citing Middletown v. Blevins (1987), 35 Ohio App.3d 65, 67, 519 N.E.2d 846. “A
trial court commits reversible error when it permits an amendment that changes
the name or identity of the crime charged.” Fairbanks, at ¶ 21, citing State v.
Kittle, 4th Dist. No. 04CA41, 2005-Ohio-3198, at ¶ 12; State v. Headley (1983), 6
Ohio St.3d 475, 478-479, 453 N.E.2d 716.
{¶9} “Where the ‘name’ of the crime remains the same, even after
amendment, there is no violation of Crim.R. 7(D) regarding that prohibition.”
State v. Craft, 181 Ohio App.3d 150, 2009-Ohio-675, 908 N.E.2d 476, at ¶ 23,
citing State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, at ¶
5; State v. Corrill (1999), 133 Ohio App.3d 550, 552, 729 N.E.2d 403; State v.
Dukes, 3d Dist. Nos. 1-02-64, 1-02-92, and 1-02-93, 2003-Ohio-2386, at ¶ 10. To
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determine if the “identity” of a crime has changed, the court must examine
whether the “penalty or degree” changed. Id. at ¶ 24, citing Davis, at syllabus.
{¶10} The language of the original and the amended indictments is set
forth above, with the original indictment asserting that the five-year-old victim
was Stacey’s spouse at the time of the offense. The error in the original
indictment was clearly clerical, and the amendment did not change the name or
identity of the crime charged for it was factually and legally impossible for T.L. to
be Stacey’s spouse. Stacey was already married at the time of the offense, so to
have been married to T.L. would have resulted in other criminal activity, namely
bigamy. R.C. 2919.01(A). Furthermore, a minor must obtain consent to marry,
and there was no evidence that such consent had been sought or obtained. R.C.
3101.01(A). Based on the factual and legal impossibility of T.L. being Stacey’s
spouse, we cannot find plain error because the clerical error in the original
indictment did not change the name or identity of the offense charged. See State
v. Sloane, 7th Dist. No. 06 MA 144, 2009-Ohio-1175, at ¶ 47-49 (trial court did not
err by allowing the state to file a superseding indictment, which added the
essential element that the victims were not the spouses of the defendant.). The
fourth assignment of error is overruled.
{¶11} In the second assignment of error, Stacey contends that the trial
court erred by not instructing the jury on the lesser-included offense of gross
sexual imposition. Stacey argues that the testimony of the nurse who administered
the rape kit essentially established reasonable doubt as to the element of
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penetration, and therefore he was entitled to the instruction on gross sexual
imposition, which requires sexual contact rather than sexual conduct.
{¶12} Stacey’s defense was that he had not committed any sexual act with
T.L. Trial Tr., Mar. 5, 2009, at 951; 971; 991. Stacey testified that he had not
raped or had sexual contact with T.L. and during closing argument, counsel’s main
contention was that Stacey had been set up; essentially a complete defense of
denial. Id. at 951; 971; 991; 1037. In his brief, Stacey focuses on the cross-
examination of Jane Sayers, the nurse who had performed the rape kit on T.L.
Stacey elicited testimony that T.L.’s hymen was intact, thus challenging the
element of penetration. On cross-examination, Sayers testified as follows:
Q: So there was [sic] no tears on the hymen?
A: That’s correct. And as I previously said, it would be
uncommon to find injury at that area. The hymen in – in that
area is very elast – elasticized. It stretches a lot.
Q: In – in regard to a five year old?
A: Absolutely. Absolutely. It’s very – we rarely see injuries.
Q: Okay. Well, on the reverse side, if, uhm, if no penis had
been in there with regard to any kind of sexual assault as
described by, uhm – as you were investigating, the hymen would
also be intact, would it not?
A: That’s correct.
Q: So the fact that no tears were noted to the hymen would
indicate that, uhm, that no penis had been in there, wouldn’t
that also be the case?
A: Well, I can’t say. I can only go by the history that was
given to me and the findings that were found. And my his – the
history that was given to me was consistent with the findings
that were found.
Q: Well, what would tears in the hymen – what would tears
in the hymen indicate with you?
***
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A: I’ve seen tears in the hymen, uhm, from straddle injuries,
uhm, any kind of injuries, the child falling off something onto it.
I’ve seen tears from a sexual assault, uhm…
Q: Wouldn’t tears in the hymen deduce, as you just said, a
sexual assault with a penis?
A: It could be. Yes, it could very well.
Q: But also no tears in the hymen would mean that there was
no sexual assault?
A: I can’t say that for sure because of the history that was
given to me.
Q: I didn’t – I didn’t ask you for sure. I said it could mean
there was no tears in the hymen, correct?
***
A: That’s correct.
Q: Which could mean that there was no sexual assault, which
could mean –
A: Yes. Yes, it could mean. Yes.
Trial Tr., at 384-386. Sayer’s testimony that an intact hymen could lead to the
conclusion that no penetration had occurred is the foundation of Stacey’s
argument that he was entitled to a jury instruction on the lesser-included offense of
gross sexual imposition.
{¶13} Gross sexual imposition is a lesser-included offense of rape. State v.
Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, at ¶ 83, citing State
v. Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082, at paragraph one of the
syllabus. However, “when a defendant presents a complete defense to the
substantive elements of the crime, such as an alibi, an instruction on a lesser
included offense is improper.” State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-
4853, 854 N.E.2d 150, at ¶ 137, citing State v. Strodes (1976), 48 Ohio St.2d 113,
117, 357 N.E.2d 375.
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{¶14} However, a defendant is entitled to an instruction on the lesser-
included-offense “‘only if, based on the evidence adduced by the state, the trier of
fact can find for the defendant * * * on some element of the greater offense which
is not required to prove the commission of the lesser offense and for the state on
the elements required to prove the commission of the lesser offense.’” Bethel, at ¶
138, quoting State v. Solomon (1981), 66 Ohio St.2d 214, 421 N.E.2d 139, at
paragraph two of the syllabus. “‘[I]f due to some ambiguity in the state’s version
of the events involved in a case the jury could have a reasonable doubt regarding
the presence of an element required to prove the greater but not the lesser offense,
an instruction on the lesser included offense is ordinarily warranted.’” Id., quoting
Solomon, at 221.
“‘While a trial court does have a duty to include instructions on
lesser included offenses, a defendant still retains the right,
through counsel, to waive such instructions. State v. Clayton
(1980), 62 Ohio St.2d 45, 47, at fn. 2, 402 N.E.2d 1189. Given
this right to waive jury instructions on lesser-included offenses,
plain error does not lie where trial counsel failed to request jury
instructions on lesser included offenses as a matter of trial
strategy. Id. at 47, 402 N.E.2d 1189.’ State v. Davis, 9th Dist. No.
21794, 2004-Ohio-3246, at ¶ 18.”
State v. Pigg, 9th Dist. No. 24360, 2009-Ohio-2107, at ¶ 5. In this case, defense
counsel told the court he would not request an instruction for any lesser-included
offense. Trial Tr., at 999. Following Clayton, we find no plain error on this
record.
{¶15} Even if we were to consider the testimony presented at trial to
determine if an instruction on gross sexual imposition was warranted, there was no
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evidence that would have permitted the jury to find Stacey not guilty of rape but
guilty of gross sexual imposition. Sayers testified that during the examination, she
first uses her fingers to separate the victim’s labia majora, “which [are] the folds
that cover the opening, cover the inside of the, uhm, genitalia. And also there is
called the labia minora, which are the inner lips there. Uhm, we separate those a
little bit and look.” Id. at 351-352. She then “also use[s] something called labial
traction where we actually take our fingers and we pull the inner labia, outer labia,
away from the vaginal opening so that we’re able to see that opening and the
hymen area.” Id. at 352.
{¶16} Stacey’s argument is based on speculative testimony about the
condition of T.L.’s hymen. Even if we accept Sayer’s testimony elicited on cross-
examination, other than his denial of committing the offense, Stacey did not rebut
or challenge the evidence that his penis penetrated T.L.’s labia majora. Based on
Sayer’s testimony, it is clear that the labia majora are more external in the female
genitalia than the hymen, thus requiring an object, such as a penis, to pass the labia
majora before reaching the hymen. “This Court has previously held that vaginal
penetration is proved when any object is applied with sufficient force to cause the
labia majora to spread.” State v. Lindsey, 3d Dist. No. 8-06-24, 2007-Ohio-4490,
citing State v. Farr, 3d Dist. No. 13-06-16, 2007-Ohio-3136, at ¶ 17, citing State v.
Roberts, 10th Dist. No. C-040547, 2005-Ohio-6391, at ¶ 62, fn. 11; State v.
Brewer, 2d Dist. No. 03CA0074, 2004-Ohio-3572, at ¶ 31-32; State v.
Falkenstein, 8th Dist. No. 83316, 2004-Ohio-2561; State v. Grant, 2d Dist. No.
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19824, 2003-Ohio-7240; State v. Blankenship (Dec. 13, 2001), 8th Dist. No.
77900; State v. Childers (Dec. 19, 1996), 10th Dist. No. 96APA05-640-640; State
v. Nivens (May 28, 1996), 10th Dist. No. 95 APA09-1236; State v. Ulis (July 22,
1994), 6th Dist. No. L-93-247; State v. Carpenter (1989), 60 Ohio App.3d 104,
573 N.E.2d 1206. As such, we cannot find plain error in the trial court’s decision
not to instruct the jury on the lesser-included offense of gross sexual imposition.
The second assignment of error is overruled.
{¶17} In the third, fifth, and sixth assignments of error, Stacey contends his
trial counsel was ineffective. In the third assignment of error, Stacey contends that
counsel was ineffective for failing to request a jury instruction on gross sexual
imposition, and that “any competent counsel would have sought to mitigate the
damage by offering the jury the opportunity to find his client guilty of a lesser-
included offense.” In the fifth assignment of error, Stacey argues that trial counsel
was ineffective for failing to object to the state’s motion to amend the indictment
to include the words “not the spouse” of the offender. In the sixth assignment of
error, Stacey challenges several alleged instances of inadmissible hearsay to which
trial counsel did not object. Stacey argues that counsel’s failure to object deprived
the trial court of the opportunity to exclude the hearsay evidence.
{¶18} In response to the third assignment of error, the state notes Stacey’s
refusal “to acknowledge any reason why his DNA would be on the crotch of
[T.L.’s] underwear, so, logically, trial counsel’s strategy of obtaining an acquittal
was in line with Appellant’s position that nothing at all of a sexual nature
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happened between Appellant and [T.L.].” The state claimed that the jury was able
to determine whether penetration occurred based on counsel’s attempts to disprove
penetration, his attempts to discredit the victim, and his attempts to create
reasonable doubt concerning medical and scientific evidence. In regard to the fifth
assignment of error, the state claims trial counsel knew Crim.R. 7(D) permitted
amendment of the indictment based on a clerical error. To rebut the sixth
assignment of error, the state contends that each example of alleged hearsay
mentioned by the defense on appeal fell within a hearsay exception. Specifically,
the state cites Evid.R. 803(2) to explain statements T.L. made to Joleen’s
boyfriend and statements T.L. made to Joleen. As to the statements T.L. made to
Kristine Konley, a nurse who examined T.L. at the Fostoria hospital, and
statements made to Sayers, the state contends that those statements were made for
medical diagnoses and are exceptions to hearsay under Evid.R. 803(4). The state
contends that trial counsel’s failures to object demonstrated his knowledge of the
Rules of Evidence and were not deficiencies.
{¶19} The Supreme Court of Ohio has established a two-part test to
determine if trial counsel was ineffective. First, the defendant must show that
counsel’s performance fell below objective standards of reasonable representation,
and second, the defendant must show resulting prejudice. State v. Dickinson, 3d
Dist. No. 11-08-08, 2009-Ohio-2099, at ¶ 20, citing State v. Bradley (1989), 42
Ohio St.3d 136, 538 N.E.2d 373, at paragraph two of the syllabus. To show
prejudice, the defendant “must prove that there exists a reasonable probability that,
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but for counsel’s errors, the outcome at trial would have been different. Id., citing
Bradley, at paragraph three of the syllabus. “‘Reasonable probability’ is a
probability sufficient to undermine confidence in the outcome of the trial.’” Id.,quoting State v. Waddy (1992), 63 Ohio St.3d 424, 433, 588 N.E.2d 819,
superseded by constitutional amendment on other grounds as recognized by State
v. Smith (1997), 80 Ohio St.3d 89, 103, 684 N.E.2d 668.
{¶20} A defendant must also overcome the presumption that counsel is
competent and must show that counsel’s decisions were “not trial strategies
prompted by reasonable professional judgment.” Id. at ¶ 21, citing Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
Richardson, 3d Dist. No. 13-06-21, 2007-Ohio-115, citing State v. Hoffman
(1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. Even unsuccessful tactical
or strategic decisions will not constitute ineffective assistance of counsel. Id.,citing State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. An
appellate court must review the totality of the circumstances and not isolated
instances of an allegedly deficient performance. Id., citing State v. Fritz, 3d Dist.
No. 13-06-39, 2007-Ohio-3138, at ¶ 35, citing State v. Malone (Dec. 13, 1989), 2d
Dist. No. 10564.
{¶21} This court has previously held that trial counsel’s failure to object
does not establish ineffective assistance of counsel. State v. Turks, 3d Dist. No. 1-
08-44, 2009-Ohio-1837, at ¶ 43, citing State v. Conway (2006), 109 Ohio St.3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103. “Furthermore, trial counsel’s
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failure to object is generally viewed as trial strategy and does not establish
ineffective assistance.” Id., citing State v. McKinney, 11th Dist. No.2007-T-0004,
2008-Ohio-3256, at ¶ 191, citing State v. Hunt (1984), 20 Ohio App.3d 310, 311,
486 N.E.2d 108; State v. Gumm (1995), 73 Ohio St.3d 413, 428, 653 N.E.2d 253.
Based on this record, it appears that trial counsel’s strategy was to attain an
acquittal for his client, without giving the jury the opportunity to consider a lesser-
included offense for a serious charge concerning a five-year old victim. Counsel
attempted to discredit the victim, Joleen, Willie Jordan, and each nurse apparently
in an attempt to raise reasonable doubt and obtain an acquittal for his client. The
alleged hearsay statements were supported when the victim, T.L., testified and was
subject to cross-examination. On this record, we cannot find that Stacey was
prejudiced by the lack of objections to certain instances of alleged hearsay or by
counsel’s professional decision to seek an acquittal on his client’s behalf.
{¶22} As to the issue concerning the indictment, we presume that trial
counsel was aware of the law, including Crim.R. 7(D), the age of the victim,
which was established in the indictment, and the legal impossibility of the wording
of the original indictment. Counsel apparently opted not to object to the
amendment of the indictment and to otherwise fight the charge against his client.
We have previously held that “‘[i]neffective assistance does not exist merely
because counsel failed “to recognize the factual or legal basis for a claim, or failed
to raise the claim despite recognizing it.”’” State v. Tosco, 3d Dist. No. 9-08-21,
2009-Ohio-408, at ¶ 35, quoting State v. Malone (Dec. 13, 1989), 2d Dist. No.
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10564, quoting Smith v. Murray (1986), 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d
434. Even if counsel had objected, the outcome of the case would not have been
different considering the overwhelming evidence against Stacey.
{¶23} In the first assignment of error, Stacey contends that his
classification as a Tier III sex offender violates the ex post facto clause of the
United States Constitution and the retroactivity clause of the Ohio Constitution
because his offense was committed prior to the effective date of Senate Bill 10,
also known as the Adam Walsh Act. This court has previously found both
contentions to be misplaced based on State v. Cook (1998), 83 Ohio St.3d 404, 700
N.E.2d 570, and State v. Williams (2000), 88 Ohio St.3d 513, 728 N.E.2d 342, and
we are bound by the principle of stare decisis to our prior decisions. Holcomb v.
State, 3d Dist. Nos. 8-08-23, 8-08-24, 8-08-25, 8-08-26, 2009-Ohio-782, at ¶ 9,
citing In re Smith, 3d Dist. No. 1-07-58, 2008-Ohio-3234, at ¶ 26-35; 38; Downing
v. State, 3d Dist. No. 8-08-29, 2009-Ohio-1834, at ¶ 15, citing In re Copeland, 3d
Dist. No. 1-08-40, 2009-Ohio-190, at ¶ 11. The first assignment of error is
overruled.
{¶24} In the seventh assignment of error, Stacey argues that cumulative
errors deprived him of a fair trial. Having reviewed the record, we conclude
Stacey received a fair trial. See State v. Jones (2000), 90 Ohio St.3d 403, 422, 739
N.E.2d 300, citing State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293,
quoting United States v. Hastings (1983), 461 U.S. 499, 508-509, 103 S.Ct. 1974,
76 L.Ed.2d 96 (litigants are entitled to a fair trial, not a perfect trial.). We are also
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mindful of the Supreme Court of Ohio’s holding that errors do not “‘become
prejudicial by sheer weight of numbers.’” State v. Were, 118 Ohio St.3d 448,
2008-Ohio-2762, 890 N.E.2d 263, at ¶ 261, quoting State v. Hill (1996), 75 Ohio
St.3d 195, 212, 661 N.E.2d 1068. The seventh assignment of error is overruled.
{¶25} The judgment of the Seneca County Common Pleas Court is
affirmed.
Judgment Affirmed
PRESTON, P.J., concurs.
ROGERS, J., concurs in Judgment,
concurs in Judgment Only on Assignment of Error No. 1.
/jnc
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