State v. Zhu , 2021 Ohio 4577 ( 2021 )

[Cite as State v. Zhu, 2021-Ohio-4577.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio :
Plaintiff-Appellee, : No. 21AP-10
(M.C. No. 2020CRB-1960)
v. :
(REGULAR CALENDAR)
Qian Zhu, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 28, 2021
On brief: The Law Office of Brian Jones, Brian G. Jones and
Elizabeth E. Osorio, for appellant. Argued: Brian G. Jones.
On brief: Zack M. Klein, City Attorney, Orly Ahroni, for
appellee. Argued: Orly Ahroni.
APPEAL from the Franklin County Municipal Court
SADLER, J.
{¶ 1} Defendant-appellant, Qian Zhu, appeals from a judgment of the Franklin
County Municipal Court convicting him of one count of sexual imposition, pursuant to a
jury verdict, and imposing sentence. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Zhu was charged with one count of sexual imposition, a third-degree
misdemeanor in violation of R.C. 2907.06(A)(1). The charge arose from events that
occurred on December 31, 2019, when Zhu performed a massage on S.P. at Touch Therapy
Massage, where Zhu was employed.
{¶ 3} A jury trial on the charge commenced on September 28, 2020. S.P. testified
she suffered from "tennis and golfer's elbow" in her right arm and had back and hip injuries
No. 21AP-10 2
from falling. (Tr. Vol. I at 126.) As a result, S.P. had problems with "sciatica and the
piriformis muscle" in the "area on the outside of [her] buttocks." (Tr. Vol. I at 126.) The
sciatica condition affected her lower back, outside of her hip and buttocks, and her right
leg. During 2019, S.P. received regular massages at Massage Envy to address these
conditions. S.P. unsuccessfully attempted to schedule a massage at Massage Envy for
December 31, 2019, when she had a day off work. She then scheduled a massage at Touch
Therapy Massage, where she had received massages "a few times a couple years [earlier]."
(Tr. Vol. I at 128.)
{¶ 4} When S.P. arrived for her appointment at Touch Therapy Massage on
December 31, 2019, she completed paperwork, including "a crude drawing of a little * * *
person, * * * front and back, where you mark what areas are sensitive and what areas you're
having pain in." (Tr. Vol. I at 131.) She marked the drawing to indicate she wanted to be
massaged on both sides of both arms and from her upper back to the bottom of her gluteal
muscles. S.P. drew a line near the bottom of the buttocks intended to indicate she did not
want a lower body or foot massage. S.P. admitted the line was near the thigh area of the
sketch. S.P. was introduced to Zhu and explained the areas she wanted massaged. Zhu
responded affirmatively, but S.P. noted Zhu's brief response suggested "he didn't have a
very strong command of the English language." (Tr. Vol. I at 135.)
{¶ 5} The massage began with S.P. lying face-down; Zhu first massaged her upper
back and shoulders. While Zhu massaged her shoulders, she could feel Zhu's body "pressed
up against [her]." (Tr. Vol. I at 138.) She also felt Zhu "pressed up against the top of [her]
head" when he was standing near the head of the massage table. (Tr. Vol. I at 138.) The
table was approximately level with Zhu's waist and genital area.
{¶ 6} After massaging S.P.'s head and shoulders, Zhu briefly massaged her gluteal
and hip area, and then "moved down to [her] lower buttocks, like underneath [her] butt
cheek area and [her] upper thighs." (Tr. Vol. I at 139.) S.P. had not intended to have her
upper thigh area massaged. Zhu then began massaging S.P.'s inner thigh. While moving
between her inner thigh and buttocks, Zhu "touched [S.P.'s] vagina several times." (Id.)
S.P. described this as an "open-handed, full touching," stating she "could feel what seemed
like all four of his fingers go all the way across." (Id.) The contact happened three or four
times while S.P. was lying on her stomach. After the first contact, S.P. hoped it was an
No. 21AP-10 3
accident and "moved [her] legs a little bit closer together," but Zhu touched the same area
"a couple more times." (Tr. Vol. I at 140.) S.P. testified she did not yell or say anything to
Zhu because she "kind of shut down about it." (Id.) During the face-down portion of the
massage, Zhu also "grabbed each of [S.P.'s] shoulders one at a time and pulled [her] up off
of the massage table[,] making the sheet drop back and exposing [her] breasts." (Tr. Vol. I
at 141.) At one point, Zhu also "pulled [S.P.'s] leg kind of out at an angle * * * and that
caused the sheet to come up[,] exposing [her] genitals." (Tr. Vol. I at 142.)
{¶ 7} Zhu then left the room and S.P. turned onto her back. S.P. only intended to
have her arms massaged while she was lying on her back. However, when Zhu returned,
he began massaging her upper thighs; while massaging this area, Zhu "rubbed his hand
across - over [her] thigh and across [her] vagina several times." (Tr. Vol. I at 144.) This
occurred when he massaged her right and left legs, approximately six to eight times in total.
S.P. did not say anything to Zhu about touching her vagina but told him she wanted her
arms massaged; Zhu moved to her head and began roughly massaging her temples. Near
the end of the massage, Zhu briefly massaged S.P.'s arms.
{¶ 8} S.P. admitted that several times during the massage, Zhu asked her if the
amount of pressure was okay, and she responded affirmatively. However, S.P. testified Zhu
did not ask if the pressure was okay when touching her vagina. (Tr. Vol. I at 213.)
{¶ 9} S.P. testified that when the massage ended, she dressed and went to the
reception area; she paid $80 for the massage, which cost in the "mid to upper 70s range"
and told the receptionist to keep the change. (Tr. Vol. I at 146.) The receptionist asked how
the massage was and S.P. answered it was "good." (Tr. Vol. I at 182.) S.P. did not say
anything to the receptionist about Zhu's conduct because the receptionist was "dressed
really provocatively" and S.P. thought perhaps "maybe [she] had gone to the type of
massage parlor where that sort of behavior is expected and paid for." (Tr. Vol. I at 148.)
S.P. went to the bathroom and wiped her genital area with a wet paper towel and then left
the massage parlor.
{¶ 10} When S.P. got to her car, she began crying and texted her boyfriend. They
had a phone conversation and he told her what had occurred was criminal. After discussing
the incident with her boyfriend, S.P. called the Franklin County Sheriff's Department from
the massage parlor parking lot. (Tr. Vol. I at 157.) A deputy came to the parking lot and
No. 21AP-10 4
S.P. filled out a report. S.P. testified she filed a report with the Franklin County Prosecutor's
Office a week after the incident.
{¶ 11} On cross-examination, S.P. admitted she had recently filed a civil lawsuit
against Zhu and Touch Therapy Massage. (Tr. Vol. I at 186, 208-09.) On redirect
examination, the state introduced a text message S.P. sent to a friend while she was
completing the report with the deputy. In that text, S.P. told her friend a "creep massage
therapist kept touching my vagina during my massage." (State's Ex. 2; Tr. Vol. I at 212.)
{¶ 12} S.P.'s boyfriend testified about their phone conversation, in which S.P. told
him Zhu had touched her vagina multiple times during the massage. During that
conversation, he told S.P. to call the police and report the incident.
{¶ 13} Zhu's trial counsel called as a witness Franklin County Sheriff's Deputy
Christopher Lee, who responded to S.P.'s call on December 31, 2019, and took her report.
After taking S.P.'s report, Deputy Lee attempted to speak with Zhu but was unable to due
to Zhu's limited English capability. Deputy Lee testified he did not file any charges the day
S.P. made the report. He further testified that probable cause was the appropriate standard
for filing a charge. On cross-examination, Deputy Lee testified when he arrived S.P. was
"visibly upset," crying, and shaking, and "reminded [him] of someone that had been
through some sort of scare or trauma." (Tr. Vol. II at 249.)
{¶ 14} The manager of Touch Therapy Massage testified she had scheduled S.P.'s
appointment and worked the front desk on December 31, 2019. After S.P. completed the
paperwork, the manager introduced S.P. to Zhu and explained his limited English
capability. The manager told S.P. that Zhu would understand if told that the massage was
too hard or too soft and that he would periodically ask if the technique and pressure he used
were okay. She further testified she generally told clients that Zhu would occasionally climb
up onto the table to apply more pressure when massaging the back.
{¶ 15} The manager testified she did not hear any indications of distress during
S.P.'s massage and would have heard any problems because the walls of the facility were
"particularly thin." (Tr. Vol. II at 256.) After the session ended, she asked S.P. about the
massage and S.P. did not complain or indicate anything inappropriate occurred. The
manager claimed S.P. paid for the massage with a credit card and personally tipped Zhu
$10 in cash before leaving. (Tr. Vol. II at 258, 273.) She claimed no other clients had
No. 21AP-10 5
complained about Zhu. The manager was also a licensed massage therapist and, on cross-
examination, testified there were no massage techniques that would involve directly
touching a client's genitals. She asserted that some techniques for massaging the gluteal
muscles and hamstrings to treat lower back pain might involve contact near the genital
area.
{¶ 16} Zhu testified, through an interpreter, that he had practiced massage for more
than ten years in China and nine years since coming to the United States. He had worked
at Touch Therapy Massage for more than three years, generally having three customers
each day at the company's different locations.
{¶ 17} Regarding the events of December 31, 2019, Zhu testified S.P. had a painful
expression before the massage, so he intended to be "extra cautious around her." (Tr. Vol.
II at 283.) Based on the diagram S.P. completed, Zhu recommended starting by massaging
her back. Zhu testified he massaged S.P.'s back and legs while she was lying face-down for
approximately 45 minutes. Zhu claimed S.P. did not say anything to cause him to believe
she was uncomfortable and did not ask him to stop the massage. He testified that when
massaging S.P.'s thigh and hips, he used his elbow "to avoid any misconception." (Tr. Vol.
II at 306.) Zhu denied touching S.P.'s vagina or near her vagina, stating he was "[n]ot even
close, not even once." (Tr. Vol. II at 307.) Zhu claimed S.P. was lying about what occurred
during the massage. He also denied leaning against the table during the massage, stating
it would be unreasonable and "not very professional." (Tr. Vol. II at 293.) On cross-
examination, Zhu admitted it would never be acceptable to touch an individual's vagina
during a massage and that touching someone's vagina could be offensive.
{¶ 18} After Zhu's testimony, the attorneys made closing statements and the case
was submitted to the jury. Following some deliberation, the jury advised the court they
were unable to reach a unanimous agreement. The trial court gave the jury an Allen charge.1
Because it was late on Friday, the trial court then asked the jurors whether they wanted to
continue to deliberate or return the following Monday. The jurors elected to resume
deliberations after the weekend. Before the jury resumed its deliberations the following
1 The Allen charge arises from Allen v. United States, 164 U.S. 492 (1896).
No. 21AP-10 6
Monday, at the state's request, the trial court gave the jury a Howard charge.2 After
continued deliberations, the jury found Zhu guilty of sexual imposition as charged.
{¶ 19} Following a sentencing hearing, the trial court sentenced Zhu to 60 days in
jail, with 57 days suspended, two years of community control, and a $500 fine. The court
designated Zhu as a Tier I sex offender, subject to a 15-year period of annual in-person
verification. Zhu timely appealed the trial court's judgment.
II. ASSIGNMENT(S) OF ERROR
{¶ 20} Zhu assigns the following as trial court error:
ASSIGNMENT OF ERROR I - TRIAL COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
[PURSUANT TO] STRICKLAND V. WASHINGTON, 466 U.S.
668, 686, 104 S.CT. 2052 (1984) AND STATE V. BRADLEY,
42 OHIO ST.3D 136, 538 N.E.2D 373 (1989) BY FAILING TO
REQUEST AN ACCIDENT OR MISTAKE OF FACT JURY
INSTRUCTION.
ASSIGNMENT OF ERROR II - TRIAL COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S.
668, 686, 104 S.CT. 2052 (1984) AND STATE V. BRADLEY,
42 OHIO ST.3D 136, 538 N.E.2D 373 (1989) BY CALLING A
WITNESS WHOSE CROSS[-]EXAMINATION WAS
PREJUDICIAL TO DEFENDANT.
ASSIGNMENT OF ERROR III - TRIAL COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S.
668, 686, 104 S.CT. 2052 (1984) AND STATE V. BRADLEY,
42 OHIO ST.3D 136, 538 N.E.2D 373 (1989) BY
INTRODUCING PREJUDICIAL EVIDENCE OF A
SEPARATE CIVIL LEGAL PROCEEDING AGAINST THE
DEFENDANT.
ASSIGNMENT OF ERROR IV - TRIAL COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S.
668, 686, 104 S.CT. 2052 (1984) AND STATE V. BRADLEY,
42 OHIO ST.3D 136, 538 N.E.2D 373 (1989) BY FAILING TO
2 The Howard charge arises from State v. Howard, 42 Ohio St.3d 18 (1989). In Howard, the Supreme Court
of Ohio abandoned the traditional Allen charge and approved an alternate supplemental instruction for a
deadlocked jury. Howard at paragraphs one and two of the syllabus. Appellant has not asserted the trial
court erred by giving the Allen charge; because the court also gave the Howard charge before the jury resumed
its deliberations, we need not reach that issue.
No. 21AP-10 7
OBJECT TO OR CLARIFY THE STATE AND WITNESSES'
USE OF THE TERM "VAGINA"[.]
ASSIGNMENT OF ERROR V - THE DEFENDANT'S
CONVICTION IS BASED ON LEGALLY INSUFFICIENT
EVIDENCE PURSUANT TO STATE V. THOMPKINS, 78
OHIO ST.3D 380, 1997-OHIO-52 AND STATE V. JENKS, 61
OHIO ST.3D 259, 574 N.E.2D 492 (1991).
ASSIGNMENT OF ERROR VI - THE DEFENDANT'S
CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE PURSUANT TO STATE V. THOMPKINS, 78
OHIO ST.3D 380, 1997-OHIO-52 AND STATE V.
APANOVITCH, 33 OHIO ST.3D 19, 514 N.E.2D 394 (1987).
ASSIGNMENT OF ERROR VII - DUE TO THE
CUMULATIVE ERRORS IN DEFENDANT'S TRIAL HE WAS
DENIED DUE PROCESS PURSUANT TO STATE V.
DEMARCO, 31 OHIO ST.3D 191, 509 N.E.2D 1256 (1987).
III. LEGAL ANALYSIS
{¶ 21} For clarity of analysis, we begin with Zhu's challenges to the sufficiency and
weight of the evidence supporting his conviction. We will then turn to his various claims of
ineffective assistance of trial counsel.
A. Sufficiency of the evidence
{¶ 22} Zhu argues in his fifth assignment of error that his conviction was based on
insufficient evidence.
{¶ 23} "Sufficiency of the evidence is a legal standard that tests whether the evidence
is legally adequate to support a verdict." State v. Kurtz, 10th Dist. No. 17AP-382, 2018-
Ohio-3942, ¶ 15, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "In determining
whether the evidence is legally sufficient to support the jury verdict as a matter of law, '[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.' " State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-
5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), at paragraph two of the
syllabus. When evaluating the sufficiency of the evidence, we "do not assess whether the
prosecution's evidence is to be believed but whether, if believed, the evidence supports the
conviction." Kurtz at ¶ 16. "[T]he testimony of one witness, if believed by the jury, is enough
to support a conviction." State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42.
No. 21AP-10 8
We will not reverse a verdict due to insufficient evidence "unless, after viewing the evidence
in a light most favorable to the prosecution, it is apparent that reasonable minds could not
reach the conclusion reached by the trier of fact." State v. Patterson, 10th Dist. No. 15AP-
1117, 2016-Ohio-7130, ¶ 32.
{¶ 24} Zhu was convicted of violating R.C. 2907.06(A)(1), which provides in relevant
part that "[n]o person shall have sexual contact with another, not the spouse of the offender
* * * when * * * [t]he offender knows that the sexual contact is offensive to the other person
* * * or is reckless in that regard." "Sexual contact" is defined as "any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic
region, or if the person is a female, a breast, for the purpose of sexually arousing or
gratifying either person." R.C. 2907.01(B).
{¶ 25} Zhu first claims there was no evidence he knew or acted recklessly regarding
whether his contact with S.P. was offensive. "A person acts knowingly, regardless of
purpose, when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature." R.C. 2901.22(B). "A person acts recklessly
when, with heedless indifference to the consequences, the person disregards a substantial
and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely
to be of a certain nature." R.C. 2901.22(C).
{¶ 26} On cross-examination, the prosecutor asked Zhu about touching an
individual's vagina during a massage:
Q. You have testified that you are an experienced masseuse,
correct?
A. Yes.
Q. And you will agree it's never acceptable to touch someone's
vagina during a massage, correct?
A. Yes.
Q. And we can also agree that touching someone's vagina could
be offensive, correct?
A. Yes.
(Tr. Vol. II at 318-19.) Zhu also testified that a male masseuse would generally use the
elbow when massaging the muscles along the sides of the buttocks "in order to avoid any
suspicion or impropriety." (Tr. Vol. II at 290.) Zhu claimed he used his elbow to massage
No. 21AP-10 9
S.P.'s thigh and hips "to avoid any misconception." (Tr. Vol. II at 306.) However, S.P.
testified the contact was an "open-handed, full touching" and she "could feel what seemed
like all four of his fingers go all the way across." (Tr. Vol. I. at 139.) Construing this evidence
in a light most favorable to the prosecution, a trier of fact could reasonably find Zhu touched
S.P.'s genitals or pubic region. The trier of fact could also reasonably find Zhu knew that
touching S.P.'s genitals would be offensive or, through the positioning of his hands, acted
recklessly as to whether it would be offensive.
{¶ 27} Zhu also asserts there was no evidence that any contact was for the purpose
of sexual arousal. A purpose of sexual arousal or gratification may be inferred "from the
type, nature, and circumstances of the contact, among other relevant factors." State v.
Barrie, 10th Dist. No. 15AP-848, 2016-Ohio-5640, ¶ 18. While Zhu concedes evidence of
sexual arousal may be inferred, he argues S.P. denied hearing any sound, seeing any
physical reaction, or feeling any "forceful grope or lingering touch" from Zhu that would
suggest a purpose of sexual arousal. (Appellant's Brief at 41.) Zhu further argues the fact
that the massage table was at his waist level and he may have made incidental contact with
the table during the massage does not support an inference of sexual gratification.
However, S.P.'s testimony did not suggest incidental contact with the massage table;
instead, she testified she could feel Zhu "pressed up against [her]" while massaging her
head and shoulders. (Tr. Vol. I at 138.) S.P. also felt Zhu touch her vagina multiple times,
both while she was lying face-down and after she had turned onto her back. Moreover, S.P.
testified Zhu moved her body during the massage in ways that exposed her breasts and her
genitals. This evidence, if believed, was sufficient to support an inference that Zhu had a
purpose of sexual arousal or gratification.
{¶ 28} Finally, Zhu also argues the evidence was insufficient to support the
conviction because there was no independent corroborating evidence of sexual contact.
The sexual imposition statue provides that no one shall be convicted of sexual imposition
"solely upon the victim's testimony unsupported by other evidence." R.C. 2907.06(B).
"The corroborating evidence necessary to satisfy R.C. 2907.06(B) need not be
independently sufficient to convict the accused, and it need not go to every essential
element of the crime charged." State v. Economo, 76 Ohio St.3d 56, 60 (1996). "Slight
No. 21AP-10 10
circumstances or evidence which tends to support the victim's testimony is satisfactory."
Id.{¶ 29} In Economo, a patient alleged her doctor made sexual contact with her during
two office visits. Id. at 56. The Supreme Court found sufficient corroborating evidence to
satisfy R.C. 2907.06(B) based on: (1) medical records showing a physician-patient
relationship existed, (2) medical records showing the patient was treated by the physician
on the date of the alleged second incident, (3) testimony from the patient's sister that the
patient was scared and upset and asked her to come in the examination room so the
physician would not touch her, and (4) testimony from the patient's sister that the patient
was on the verge of crying when she left the examination room. Id. at 60. Similarly, the
Eighth District Court of Appeals found sufficient corroborating evidence in a case involving
a high school student's sexual contact with one of his classmates during class because:
(1) the victim told a friend about the incident after it occurred, (2) the victim told a teacher
the following day that she had been touched by another student in a private area, and (3)
there was testimony that the victim was emotional and extremely upset. In re J.W., 8th
Dist. No. 109031, 2020-Ohio-4065, ¶ 21.
{¶ 30} Here there was sufficient corroborating evidence to satisfy the requirement
of R.C. 2907. 06(B). Zhu and the massage parlor manager testified S.P. received a massage
from Zhu on S.P. on December 31, 2019. S.P.'s boyfriend testified she sent him text
messages and had a phone conversation with him about the incident while sitting in her car
after leaving the massage parlor. The state also introduced a text message sent to another
friend while completing the police report; in the text, S.P. stated her masseuse touched her
vagina. The responding deputy testified S.P. was visibly upset and "reminded [him] of
someone that had been through some sort of scare or trauma." (Tr. Vol. II at 249.) This
evidence met the standard of "[s]light circumstances or evidence which tends to support
the victim's testimony." Economo at 60.
{¶ 31} Based on our review of the evidence, considering it in a light most favorable
to the prosecution, we conclude a rational trier of fact could have found all the essential
elements of sexual imposition proven beyond a reasonable doubt. See Robinson at ¶ 34.
Accordingly, we overrule Zhu's fifth assignment of error.
No. 21AP-10 11
B. Manifest weight of the evidence
{¶ 32} Zhu argues in his sixth assignment of error that the jury's verdict was against
the manifest weight of the evidence.
{¶ 33} "While sufficiency of the evidence is a test of adequacy regarding whether the
evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest
weight of the evidence standard addresses the evidence's effect of inducing belief." State v.
Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 38. This standard requires an
appellate court to determine whether the state's evidence or the defendant's evidence was
more persuasive. Id. When evaluating whether a conviction is against the manifest weight
of the evidence, we "must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses and determine whether, in resolving
any conflicts in the evidence, the jury clearly lost its way and thereby created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial must
be ordered." Id. at ¶ 39. We will only reverse a conviction on manifest weight grounds in
the most exceptional case where the evidence weighs heavily against the conviction. Id. at
¶ 40.
{¶ 34} When evaluating the manifest weight of the evidence, we may consider the
credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953,
¶ 6. "However, in conducting our review, we are guided by the presumption that the jury,
or the trial court in a bench trial, 'is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.' " Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio
St.3d 77, 80 (1984). "Accordingly, we afford great deference to the jury's determination of
witness credibility." State v. Albert, 10th Dist. No. 14AP-30, 2015-Ohio 249, ¶ 14. "Mere
disagreement over the credibility of witnesses is not a sufficient reason to reverse a
judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770, 2014-
Ohio-2501, ¶ 25.
{¶ 35} Zhu argues the verdict was against the manifest weight of the evidence
because of potential confusion over the term "vagina." As discussed more fully below, there
is no evidence of any confusion about this term and Zhu's trial counsel clarified the term
during voir dire. Zhu also claims the jury lost its way by convicting him because S.P. never
No. 21AP-10 12
communicated her discomfort and he had no way of knowing she was dissatisfied with the
massage unless she told him. However, Zhu admitted that touching a client's vagina during
a massage would be offensive; therefore, if the jury believed S.P.'s testimony about the
touching, Zhu's own testimony served to establish the offensiveness of that action.
{¶ 36} Because the jury initially was unable to reach a verdict, Zhu argues it can be
inferred the final verdict was motivated by sympathy for S.P. The trial court expressly
instructed the jurors they "must not be influenced by any consideration of sympathy or
prejudice." (Tr. Vol. II at 356.) A jury is presumed to follow the trial court's instructions.
State v. Shine-Johnson, 10th Dist. No. 17AP-194, 2018-Ohio-3347, ¶ 45; see also State v.
Fox, 133 Ohio St. 154, 160 (1938) ("A presumption always exists that the jury has followed
the instructions of the court as to the law."). Zhu presents nothing more than speculation
and fails to overcome the presumption that the jurors followed the trial court's instruction
not to reach a verdict based on sympathy or prejudice.
{¶ 37} Given the nature of the evidence in this case, with S.P. testifying Zhu touched
her inappropriately and Zhu claiming it did not happen, the jury was inevitably faced with
a credibility determination. The verdict indicates the jury found S.P. more credible and we
must afford "great deference" to that determination. Albert at ¶ 14. Based on our review of
the evidence, we cannot find the jury clearly lost its way and created a manifest miscarriage
of justice in finding Zhu guilty. Cassell at ¶ 39. Accordingly, we overrule Zhu's sixth
assignment of error.
C. Ineffective assistance of counsel
{¶ 38} Zhu's first through fourth assignments of error all raise claims of ineffective
assistance of trial counsel.3 Each of these assignments is governed by the same general
standard, but we will consider the specific merits of each claim individually.
1. Standard for establishing ineffective assistance of counsel
{¶ 39} Zhu must satisfy a two-pronged test to demonstrate ineffective assistance of
counsel. State v Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v.
Washington, 466 U.S. 668 (1984). First, he must show that his counsel's performance was
deficient because it "fell below an objective level of reasonable representation." Id. Second,
3Zhu was represented by two attorneys at trial, but for clarity of discussion we will use "counsel" as a singular
noun.
No. 21AP-10 13
he must show that his counsel's deficient performance prejudiced his defense so far as to
deprive him of a fair trial. Id. The failure to show deficient performance or prejudice will
defeat a claim of ineffective assistance of counsel. State v. Lee, 10th Dist. No. 17AP-908,
2018-Ohio-3957, ¶ 35.
{¶ 40} To establish deficient performance, Zhu must "show that counsel made
errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment." Id. at ¶ 34. "Debatable trial tactics generally do not constitute ineffective
assistance of counsel." State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 116. A claim
of deficient performance "must overcome the strong presumption that counsel's
performance was adequate or that counsel's actions might be considered sound trial
strategy." Lee at ¶ 34.
{¶ 41} To establish prejudice due to the alleged deficient performance, Zhu must
"prove there exists a reasonable probability that, but for counsel's errors, the result of the
trial would have been different." Id. at ¶ 35. " 'A reasonable probability is a probability
sufficient to undermine confidence in the outcome. ' " State v. Montgomery, 148 Ohio St.3d
347, 2016-Ohio-5487, ¶ 82, quoting Strickland at 694.
2. Failure to request jury instructions on accident or mistake
of fact
{¶ 42} Zhu argues in his first assignment of error that his trial counsel was
ineffective by failing to request jury instructions on accident or mistake of fact.
{¶ 43} Generally, "[t]rial courts have a responsibility to give all jury instructions that
are relevant and necessary for the jury to properly weigh the evidence and perform its duty
as the factfinder." Shine-Johnson at ¶ 25. "A party is entitled to the inclusion of its
requested instruction only if it is a correct statement of the law applicable to the facts of the
case." (Emphasis added.) State v. Covington, 10th Dist. No. 06AP-826, 2007-Ohio-5008,
¶ 8. "Jury instructions are proper if they correctly state the law as applied to the facts of the
case, and if reasonable minds can properly reach the conclusion sought by the instructions."
Id.a. Jury instruction on accident
{¶ 44} "[A]ccident 'involves the denial of a culpable mental state and is tantamount
to the defendant not committing an unlawful act.' " State v. Juntunen, 10th Dist. No. 09AP-
1108, 2010-Ohio-5625, ¶ 14, quoting State v. Barnd, 85 Ohio App.3d 254, 260
No. 21AP-10 14
(3d Dist.1993); see also State v. Fears, 86 Ohio St.3d 329, 340 (1999) ("The concept of
accident is tantamount to a denial that the act was intentional."). The model jury
instruction on accident provides, in relevant part, that the defendant "denies that he
committed an unlawful act and says that the result was accidental." Ohio Jury Instructions,
CR Section 421.01 (Rev. June 2021).
{¶ 45} Zhu asserts the evidence was sufficient to warrant an accident instruction,
which would have permitted the jury "to consider whether the contact that was alleged was
accidental and without an intent or purpose of sexual gratification." (Appellant's Brief at
22.) Zhu claims his trial counsel's failure to request an accident instruction prevented the
jury from weighing the testimony in light of such an instruction.
{¶ 46} In State v. Norman, 10th Dist. No. 99AP-398 (Dec. 23, 1999), we considered
whether trial counsel was ineffective by failing to request an accident instruction in a
murder case. The defendant in Norman testified he pointed a gun at the victim to get him
to stop choking another individual; the gun fired and the bullet struck the victim in the
neck, killing him. At various points in his testimony, the defendant alternatively claimed
he pulled the trigger to scare the victim but did not know the gun was loaded, that he did
not intend to injure the victim but wanted to get him off the other individual, that he
intended to injure the victim but not kill him, and that he was scared and thought deadly
force was the only way to stop the victim. After noting that accident and self-defense or
defense of another are generally inconsistent, we concluded the defendant's trial counsel
made a strategic decision to request an instruction on defense of another, rather than
accident, because of the defendant's inconsistent testimony. We concluded this strategic
decision was not ineffective assistance by the defendant's trial counsel.
{¶ 47} In the present case, Zhu repeatedly testified he did not touch S.P.'s vagina:
Q. Your hand was never near her vagina?
A. No. In order – In order to avoid any misconception, I used
my elbow to massage her thigh and groin – hips.
The Interpreter: The interpreter made the error. Thigh and
hip.
***
Q. You didn't accidentally touch her vagina? You didn't
accidentally touch her vagina?
No. 21AP-10 15
A. No, because when I was massaging her legs and her hips, she
was covered under the sheet.
Q. Sir, once again, please just answer my question. So you
didn't touch her vagina three times?
A. No, no.
Q. Not once?
A. No.
Q. Not once?
A. Yes.
Q. Not even close? Not even close?
A. Not even close, not even once.
***
Q. So you heard her say – testify that you touched her vagina 8
to 12 times, correct?
A. I didn't even touch her once. She was lying.
(Tr. Vol. II at 306-07, 310.) Zhu's repeated testimony that he did not touch S.P.'s vagina
and his declaration that S.P. was lying about the incident were inconsistent with an accident
defense, which would require persuading the jury that any contact with S.P.'s vagina was
unintentional and incidental to the massage. Under these circumstances, like in Norman,
it appears trial counsel made a strategic decision to pursue the defense most consistent with
Zhu's testimony. It also appears Zhu's trial counsel made a strategic decision not to argue
in the alternative—i.e., that no contact with S.P.'s vagina occurred but, if it did, any contact
was accidental. We cannot conclude these strategic decisions "fell below an objective level
of reasonable representation." Jackson at ¶ 133. Under these circumstances, Zhu's trial
counsel did not provide ineffective assistance by failing to request a jury instruction on
accident.
b. Jury instruction on mistake of fact
{¶ 48} "Generally, mistake of fact is a defense if it negates a mental state required to
establish an element of a crime, except that if the defendant would be guilty of a crime under
facts as he believed them, then he may be convicted of that offense." State v. Hubbard,
10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 64. "Mistake of fact is widely recognized as a
defense to specific intent crimes such as theft since, when the defendant has an honest
No. 21AP-10 16
purpose, such a purpose provides an excuse for an act that would otherwise be deemed
criminal." Id.{¶ 49} Zhu claims a mistake of fact instruction would have related to the element of
knowledge, arguing there was a lack of evidence he knew incidental contact with S.P.'s
pubic region was offensive to her. Zhu argues S.P. did not tell him before the massage that
she did not want her thighs massaged and did not stop or correct him during the massage.
He asserts the jury could have inferred he had a good faith but mistaken belief he was
massaging the areas S.P. wanted to have addressed and therefore his trial counsel was
ineffective by failing to request a mistake of fact instruction.
{¶ 50} Again, we note Zhu repeatedly denied making any contact with S.P.'s vagina.
He did not allege that touching S.P.'s genitals or pubic region was a necessary, or even an
incidental, part of the massage he performed. Moreover, Zhu expressly admitted on cross-
examination that such contact, if it occurred, would be offensive. Zhu's testimony does not
support a claim that he had an "honest purpose" for touching S.P.'s pubic region that would
"provide[ ] an excuse for an act that would otherwise be deemed criminal." Hubbard at
¶ 64. It appears Zhu's trial counsel made a strategic decision to focus on Zhu's denial of
touching S.P.'s vagina, rather than pursue a mistake of fact instruction that would seek to
provide an excuse for such touching. We cannot conclude this strategic decision "fell below
an objective level of reasonable representation." Jackson at ¶ 133. Zhu's trial counsel did
not provide ineffective assistance by failing to request a mistake of fact instruction.
{¶ 51} Because we find Zhu's trial counsel did not perform deficiently by failing to
request jury instructions on accident or mistake of fact, we cannot find ineffective
assistance of counsel on these grounds. Accordingly, we overrule Zhu's first assignment of
error.
3. Calling Deputy Lee as a witness at trial
{¶ 52} Zhu's second assignment of error argues his trial counsel provided ineffective
assistance by calling Deputy Lee to testify because he gave harmful testimony on cross-
examination.
{¶ 53} "Generally, counsel's decision whether to call a witness falls within the rubric
of trial strategy and will not be second-guessed by a reviewing court." State v. Treesh, 90
Ohio St.3d 460, 490 (2001). "Trial tactics and strategies, even 'debatable trial tactics,' do
No. 21AP-10 17
not constitute a denial of effective assistance of counsel." State v. Thompkins, 10th Dist.
No. 06AP-310, 2006-Ohio-6148, ¶ 9, citing State v. Leonard, 104 Ohio St.3d 54, 2004-
Ohio-6235, ¶ 146.
{¶ 54} Thompkins involved charges of attempted murder and felonious assault; the
victim, who had been in a relationship with Thompkins but was in the process of leaving
him, claimed Thompkins forced her into their home at knifepoint and then choked her. Id.
at ¶ 3. She fled the home and ran to a neighbor's porch; Thompkins followed, ultimately
catching the victim and throwing her to the ground, then stabbing her multiple times. Id.
Thompkins's trial counsel called only one witness, the neighbor to whose porch the victim
had fled. Id. at ¶ 4. On appeal, Thompkins argued this was ineffective assistance, claiming
he had a chance of acquittal before the neighbor testified because the victim's credibility
was questionable. Id. at ¶ 7. Thompkins conceded his trial counsel appeared to seek
testimony that the neighbor did not see a weapon during the altercation but argued that
point was irrelevant and would not have helped his defense. Id.
{¶ 55} Based on its review of the record, this court concluded Thompkins's trial
counsel may have been trying to use the neighbor's testimony to negate the use of a deadly
weapon element of the felonious assault charges and the intent to kill element of the
attempted murder charge. Id. at ¶ 8. We concluded that "although the decision whether to
call [the neighbor] for such a limited purpose while risking damage resulting from the
entirety of his testimony could be classified as a debatable trial tactic with a debatable
chance of success, without putting forth any other testimony, appellant had nothing to
rebut the victim's clear testimony." Id. at ¶ 9. Under those circumstances, the court did not
find trial counsel's strategy to be unreasonable. Id.
{¶ 56} Similarly, in a case involving sexual abuse charges against multiple child
victims, this court found it was not ineffective assistance for defense counsel to call one of
the alleged victims as a witness, even though she ultimately testified that the defendant had
abused her. State v. Douthat, 10th Dist. No. 09AP-870, 2010-Ohio-2225, ¶ 18. The victim
had previously denied being sexually abused in interviews with a children's services
investigator and a police detective, and never talked to anyone but her twin sister about the
abuse. Id. at ¶ 18. This court reasoned defense counsel "could have called [the victim] as a
witness believing that she would continue to deny [Douthat] ever sexually abused her." Id.
No. 21AP-10 18
We concluded calling the victim as a witness was not ineffective assistance "in light of the
extremely wide latitude legal counselors are given in the selection of witnesses, because
[Douthat's] trial counsel had at least a plausible reason for calling [her]." Id.
{¶ 57} Zhu acknowledges his trial counsel likely called Deputy Lee as a witness "to
establish that charges were not immediately filed" against him. (Appellant's Brief at 29.)
He argues Deputy Lee's direct testimony led to a "confusing and unhelpful discussion of
probable cause." Id. Zhu claims Deputy Lee's cross-examination testimony that S.P. was
visibly upset, crying, shaking, and reminded him of someone who had experienced a
trauma was directly harmful to Zhu's defense. Zhu argues it was not a reasonable
professional decision to call Deputy Lee as a witness because of this harmful testimony.
{¶ 58} Like Thompkins and Douthat, the decision to call Deputy Lee as a witness
falls within the realm of a debatable trial tactic. It was clearly an attempt to cast doubt on
S.P.'s claims by establishing that Deputy Lee found insufficient evidence to charge Zhu with
any criminal offense. While the benefit from Deputy Lee's direct testimony ultimately may
have been outweighed by his cross-examination testimony, "an unsuccessful strategy does
not render counsel's assistance constitutionally ineffective." State v. Hunt, 10th Dist. No.
12AP-1037, 2013-Ohio-5326, ¶ 117. Here, Zhu's trial counsel had a plausible reason for
presenting Deputy Lee as a witness. See Douthat at ¶ 18. Therefore, we cannot conclude
Zhu's counsel performed deficiently by calling Deputy Lee to testify at trial.
{¶ 59} Accordingly, we overrule Zhu's second assignment of error.
4. Introducing evidence of the civil proceeding against Zhu
and Touch Therapy Massage
{¶ 60} Zhu argues in his third assignment of error that his trial counsel provided
ineffective assistance by asking S.P. on cross-examination about a separate civil proceeding
against Zhu.
{¶ 61} "Decisions regarding cross-examination are within the trial counsel's
discretion and generally do not form the basis for a claim of ineffective assistance of
counsel." Hunt at ¶ 116. We have held "[t]he extent and scope of cross-examination clearly
falls within the ambit of trial strategy." Id. Therefore, " 'an appellate court reviewing an
ineffective assistance of counsel claim must not scrutinize trial counsel's strategic decision
to engage, or not engage, in a particular line of questioning on cross-examination.' " State
No. 21AP-10 19
v. Dorsey, 10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 22, quoting In re Brooks, 10th Dist.
No. 04AP-164, 2004-Ohio-3887, ¶ 40.
{¶ 62} On cross-examination, Zhu's trial counsel asked S.P. whether she was in the
process of filing a lawsuit against Zhu or Touch Therapy Massage, and whether she was
subject to an open case with the Internal Revenue Service ("IRS") regarding unpaid taxes.
S.P. admitted to having hired an attorney and filing a civil claim against Zhu and Touch
Therapy Massage but denied having any outstanding IRS tax liens. On redirect
examination, the state then introduced the text message S.P. sent to a friend while she was
completing the police report. In that text, S.P. told her friend that a "creep massage
therapist kept touching [her] vagina during [her] massage." (State's Ex. 2; Tr. Vol. I at 212.)
The trial court denied Zhu's objection to the text message, in part under the exception to
the hearsay exclusion for prior consistent statements offered to rebut an express or implied
charge of improper motive.
{¶ 63} Zhu argues the questions about a civil claim against him and pending tax
debts harmed his defense by opening the door for evidence rebutting the implied improper
motive. This allowed the state to introduce S.P.'s text message to her friend, thereby
bolstering her testimony. Zhu claims his trial counsel was aware of the risk of this evidence
prior to trial and had sought to exclude it.
{¶ 64} As explained above, we generally will not scrutinize a particular line of cross-
examination because the scope of cross-examination is within the realm of trial strategy.
Here, it is clear Zhu's trial counsel sought to discredit S.P.'s testimony by suggesting she
had a financial motive to accuse Zhu of improper touching. This appears to have been a
strategic decision guided by Zhu's claim that S.P. was lying about the incident—it offered
an explanation for why S.P. would lie. Although this strategy was unsuccessful and
involved a risk of allowing the state to bolster S.P.'s testimony, we cannot conclude it was
deficient performance. See Hunt at ¶ 117.
{¶ 65} Accordingly, we overrule Zhu's third assignment of error.
5. Failing to clarify the term "vagina"
{¶ 66} In his fourth assignment of error, Zhu argues his trial counsel provided
ineffective assistance by failing to clarify the term "vagina," thereby potentially allowing the
jury to be misled. Zhu asserts that "[m]edically, the vagina is the canal between the hymen
No. 21AP-10 20
and the cervix," but admits that colloquially the term may be used to refer to the external
genitalia. (Appellant's Brief at 36-37.) He claims his trial counsel failed to clarify which
parts of the genitals or pubic region S.P. meant when she used the word vagina. Thus, Zhu
argues, his trial counsel failed to ensure that the jury understood what S.P. and Zhu were
referring to when they used the term vagina.
{¶ 67} The record belies Zhu's claim, however. Although Zhu's trial counsel did not
clarify the term during trial, it was clarified during voir dire when questioning a potential
juror who was also a registered nurse. After discussing the medical distinction between the
vagina and the vulva and other parts of the external genitals, Zhu's counsel advised the
potential jurors "what we're talking about is going to be the external organ." (Tr. Vol. I. at
90.) Having laid this foundation during voir dire, attempting to further clarify the term
during trial, such as asking S.P. to describe in precise detail exactly what part of her genitals
she claimed Zhu touched, could have been detrimental to Zhu's defense. To the extent Zhu
suggests he may have been confused by the term, particularly considering his limited
English, there is nothing in the record indicating Zhu misunderstood the term or failed to
appreciate the distinction between the internal and external genitals when testifying. Zhu
fails to overcome the strong presumption that his trial counsel's performance was adequate
when choosing not to clarify the term vagina in greater detail during trial. See Lee at ¶ 34.
Therefore, we cannot conclude his counsel performed deficiently.
{¶ 68} Accordingly, we overrule Zhu's fourth assignment of error.
D. Cumulative error
{¶ 69} Finally, we turn to Zhu's seventh assignment of error, in which he asserts that
the cumulative effect of his trial counsel's ineffective assistance requires reversal of his
conviction.
{¶ 70} Under the doctrine of cumulative error, "a judgment may be reversed where
the cumulative effect of errors deprives a defendant of his constitutional rights, even though
the errors individually do not rise to the level of prejudicial error." State v. Johnson, 10th
Dist. No. 10AP-137, 2010-Ohio-5440, ¶ 34, citing State v. Garner, 74 Ohio St.3d 49, 64
(1995).
{¶ 71} As explained above, we find no merit to any of Zhu's claims of ineffective
assistance of counsel. "[W]hen none of [an appellant's] individual claims of ineffective
No. 21AP-10 21
assistance of counsel have merit, cumulative error cannot be established simply by joining
those meritless claims together." State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700,
¶ 170; see also Columbus v. Beasley, 10th Dist. No. 17AP-629, 2019-Ohio-719, ¶ 80
("[N]one of appellant's individual claims of ineffective assistance of counsel has merit.
Appellant cannot establish he is entitled to relief simply by combining those unsuccessful
claims together."). Because none of Zhu's ineffective assistance of counsel claims have
merit, he cannot demonstrate cumulative error.
{¶ 72} Accordingly, we overrule Zhu's seventh assignment of error.
IV. CONCLUSION
{¶ 73} For the foregoing reasons, we overrule Zhu's seven assignments of error and
affirm the judgment of the Franklin County Municipal Court.
Judgment affirmed.
JAMISON and NELSON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
_____________