State v. Artis , 2021 Ohio 2965 ( 2021 )

[Cite as State v. Artis, 2021-Ohio-2965.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1267
Appellee Trial Court No. CR0201801686
v.
Lee Artis, Jr. DECISION AND JUDGMENT
Appellant Decided: August 27, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Lee Artis Jr., appeals the October 9, 2019 judgment of the Lucas
County Court of Common Pleas sentencing him to an aggregate term of 17 years in
prison. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} In April 2018, Artis was indicted on three counts of rape in violation of R.C.
2907.02(A)(2), all first-degree felonies. The charges arose from sexual assaults on D.V.,
who was between 13 and 15 years old during the timeframes alleged in the indictment.
Count 1 related to penile penetration of the anus, count 2 related to digital penetration of
the vagina, and count 3 related to penile penetration of the vagina. Initially, Artis
retained attorney R. Lee Roberts Jr. (“Roberts”) to represent him. Later, attorneys
Anthony McGeorge and Richard Roberts Sr. (“Richard”) also entered appearances on
Artis’s behalf.
{¶ 3} The case was tried to a jury in July 2019. At trial, the state presented the
testimony of Detectives David Morford and Rebecca Kincaid of the Toledo Police
Department (“TPD”); D.V.’s mother, M.E. (“mother”); sexual assault nurse examiner
(“SANE”), Amanda Brigode; D.V.’s “cousin,” Ericka Jennings; and D.V. In his defense,
Artis presented the testimony of his girlfriend, Blanca Saldivar, and the video deposition
of Dr. Warren Metherd. The following facts were established at trial.
A. Text message testimony and plea offer
{¶ 4} The state’s first witness was Detective Morford, the TPD detective who
extracted data from mother’s cellphone. He testified that the data-extraction report
admitted as state’s exhibit No. 19 was the report he created by using an extraction tool
called Cellebrite on a phone owned by mother, after getting mother’s consent to the
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extraction. To obtain the data in state’s exhibit No. 19, Morford performed a logical
extraction of the data on the phone. Morford explained that a logical extraction pulls
information that is physically present on the device being examined. A logical extraction
does not include any information that is deleted from the device before Cellebrite extracts
the data. After extracting data from mother’s phone, Morford did not open the phone to
compare the information in state’s exhibit No. 19 to the data actually on the phone
because, he explained, doing so would cause changes to the phone’s operating system
and he had no reason to believe that the Cellebrite device was not working properly.
{¶ 5} Among the information that Morford extracted was a series of text messages
from February 27 and 28, 2018, between mother’s phone and a contact named “Lee.”
Morford said that the contact name and its associated phone number were pulled from the
phone; he did not know if “Lee” was Artis or if the phone number associated with the
“Lee” contact was Artis’s number. The court permitted Morford to read the text
messages, which contained incriminating statements by “Lee,” including:1
 “I apologize SO much for so much [mother] I I really do im sitting
ova so hurt for breaking your daughters trust n yours ova my dumb ass
actions……”
1
The text messages are transcribed exactly as they appear in the trial exhibit. All
spelling, formatting, and grammatical errors appear in the original.
3.
 In response to a message from mother to “Lee” that stated, “Jusr
be ready to b picked up today. We bout to b on our way to the hospital n go
fromt here. I’m so fucked up over this.this is my baby u touched. U put
your fingers in a LITTLE GIRL. Then tried putting your grown Dick in
her. You will not get outta this one[,]” “Lee” texted, “Please listen to me
[mother] please I just want to tell you my story please”
 In response to a message from mother to “Lee” that stated, “[D.V.]
already blames herself for allowing it to happen. * * *,” “Lee” texted, “Im
not blaming her i would never do that it’s my fault”
 After a message from mother to “Lee” that concluded, “I’m just
sick[,]” “Lee” responded, “Thts y i want u to hear my side i was so hurt
yesterday [when D.V. disclosed the abuse] i couldn’t even tlk to u n tell u
my side no lies”
{¶ 6} Morford was the only witness on the first day of trial. The next morning,
before the trial reconvened, the state put on the record that it had offered Artis a plea
bargain the night before, after the jury heard testimony including the incriminating text
messages. It offered to let Artis plead to one count of rape with an agreed-upon prison
term of five years, which Artis rejected. Roberts confirmed that Artis did not want to
take the plea. The court verified with Artis that he had discussed the offer with his
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attorneys and explained the total potential sanctions Artis faced if convicted, after which
Artis said that he wanted to reject the state’s offer. So, the trial continued.
B. The remainder of the state’s case
{¶ 7} When the trial resumed, mother testified that she had known Artis for
approximately ten years and that he was a “very good friend * * *.” She denied ever
having a sexual relationship with Artis. Her children, including D.V., knew Artis and got
along well with him. Mother said that Artis “did a lot of picking [D.V.] up and tickling
her and playing with her * * *.” In 2015, when the state alleged that Artis’s abuse of
D.V. began, Artis was coming to mother’s house two or three times a week and it was not
unusual for Artis to be at the house when mother was not there. However, when mother
was not home, Jennings—who lived with mother—was. Jennings is an adult who is not
related to mother and D.V., but she and D.V. think of each other as cousins.
{¶ 8} D.V. testified that Artis—a “close family friend” whom she had known since
she was a young child—began abusing her when she was approximately 13 years old.
Before the abuse began, D.V. liked Artis and thought of him as an uncle.
{¶ 9} D.V. said that Artis would come to her house when mother was not home
and that Artis would “try to get me to follow him, like he try to get me to go with him,
and when he did, like he would try to touch me.” When this happened, D.V.’s younger
siblings would usually be in another room watching television or playing with Artis’s
cellphone.
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{¶ 10} D.V. recounted several incidents of Artis’s inappropriate behavior with her.
The first incident, which related to the anal rape charge, happened in one of D.V.’s prior
homes. She and Artis were in the kitchen, which D.V. described as “like a narrow
hallway.” D.V. stood facing the counter and Artis stood behind her. Artis “kept trying to
like touch * * *” D.V. while she told him no. She said that Artis was trying to keep her
in the kitchen. Eventually, Artis pulled down his and D.V.’s pants, and his “private”
“touched” her. She clarified that Artis’s penis touched her “butt” and that it “went in a
little bit because it gave me like a shock.” After this happened, D.V. got away from Artis
and went to her room. She said that Artis told her “I’m sorry, I didn’t mean to do that.”
D.V. said that she did not initially tell anyone about this encounter because she was
“scared of the output of what would have happened.”
{¶ 11} The second incident happened at Artis’s house. D.V. and one of her sisters
stayed the night with Artis and his girlfriend, Saldivar, so that Saldivar could take them
on an outing the next day. D.V. slept on one of the couches in the living room, and her
sister slept on the other. During the night, D.V. woke to Artis attempting to remove her
pants. D.V. “told him no because my little sister was right there.” D.V. was able to stop
Artis from removing her pants, and Artis did not do anything else to D.V. that night.
{¶ 12} Next, D.V. generally described Artis’s behavior toward her when she lived
at another of her former homes. This conduct formed the basis of the digital rape charge.
She said that Artis would come to the house when mother was not home and would
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distract her younger siblings with his cellphone. According to D.V., while the other
children played on the phone, “whenever [Artis] had a chance to if I was alone or
anything he would try to touch me or if I was around my sisters he would try to pull me
out of the room like to the other room or take me downstairs. There’s been a couple
times where I’ll be sleep and he would try—he would touch me in my sleep or.” To
clarify the type of touching Artis was doing, the prosecutor asked D.V. the following
series of questions:
[Prosecutor] Where, what kinds of places would he touch you?
[D.V.] My private like down.
[Prosecutor] Down so—
[D.V.] The front area.
[Prosecutor] So that would be your vagina?
[D.V.] Yes.
[Prosecutor] So he would touch you. What would he touch your
vagina with?
[D.V.] Either his fingers and a couple times he tried to put his
mouth down there.
[Prosecutor] When he would touch you with his fingers were they
outside of your body or inside of your body?
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[D.V.] Outside I believe. There might have been a couple times he
tried to go inside.
[Prosecutor] Did you ever feel his fingers inside your body?
[D.V.] Yes.
{¶ 13} The final incident that D.V. described was the incident that precipitated her
disclosure of the abuse to mother. Artis came to the house after work on a weekday. He
gave Jennings some money so that she would take D.V.’s younger siblings to the store.
D.V. was lying in bed and just waking up when Artis came into her room. She said that
Artis sat on the edge of her bed and “kept trying to touch” her, but that Jennings walked
into the room and told Artis that he should not be in there. Regardless, Artis stayed in the
room after Jennings left. After leaving D.V.’s room, Jennings took some of D.V.’s
younger siblings to the store while others stayed behind.
{¶ 14} Once Jennings left, D.V. said that Artis was “holding” and “forcing” her to
get her to go downstairs into the kitchen. D.V. described the assault as follows:
[Artis] kept trying to like touch, and I was saying no. And I told him
I was going to tell, and he told me I wasn’t. And eventually he pulled his
pants down, pulled mine down, and then he tried to hurry up and go in, and
I felt like a shock, and I ran upstairs, and my mom had walked in like a
couple seconds later like after I got upstairs * * *.
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She said that Artis entered her “private, the front area,” which she clarified referred to
Artis’s penis entering her vagina. As soon as D.V. felt the “shock,” she broke away from
Artis, pulled up her pants, and ran up the stairs to her bedroom. D.V. was already in her
bedroom when mother came home.
{¶ 15} Jennings also testified to an earlier time when she saw Artis in D.V.’s
bedroom. When Artis came over that day, Jennings assumed that he was there to see
mother, who was not home. Jennings told Artis that mother would not be back for a
while, and she thought that Artis left. Later, Jennings went back upstairs and saw D.V.
sleeping in her bed and Artis sitting on the edge of the bed. She told Artis that he should
not be in D.V.’s room. Artis did not say anything; he “just looked at [Jennings] crazy.”
When D.V. came downstairs, Jennings said that D.V. was “acting like he did something
to her. She wasn’t acting normal. * * * Like she was acting like she was afraid * * *.
She wasn’t acting like herself.”
{¶ 16} In addition to recounting the circumstances of the rapes, D.V. recalled
writing a letter to mother disclosing the rapes the day after the final assault happened.
She wrote that “someone has been touching [her] in inappropriate ways more and more
ever since [she] was 13 * * *” and that “the person who has been doing this to me is
lee.... [sic].” D.V. did not immediately give the letter to mother because her siblings were
around. She kept the letter to herself “overnight” and then showed it to her best friend,
who encouraged D.V. to tell mother and said that she would tell mother if D.V. did not.
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Rather than going to mother, though, D.V. showed the letter to Jennings “late at night”
while mother was sleeping. Jennings told one of D.V.’s brothers about the abuse. D.V.’s
brother texted her to encourage her to tell mother, and also texted mother to tell her that
she needed to talk to D.V.
{¶ 17} The next morning, mother asked D.V. about her brother’s text messages
from the night before, which is when D.V. gave mother the letter. D.V. said that she
wrote the letter because “I couldn’t bring myself to tell [mother] the whole story face to
face.” Even after writing the letter, D.V. hesitated to show mother because she still had
“that fear in me wondering what was going to happen afterwards.” She wrote the letter
because she “felt like if I wrote it and just showed or told somebody like it would stop so
like, but I was just scared still like of the output of what would happen.”
{¶ 18} During cross-examination regarding the letter, D.V. admitted that she did
not actually write the letter to mother the day after the final assault. And although D.V.
testified that she reported to the SANE that the abuse began when she was 11 or 12 years
old, she conceded that her letter, medical records, and initial report to the police all
indicate that the abuse began when she was 13 years old. She said that the first time she
reported that she was 11 years old when the abuse began was during her interview with
Kincaid. On redirect, D.V. clarified that Artis had done things like tickling her thighs
when she was 11, but did not insert anything into her body until she was 13.
10.
{¶ 19} After reading the letter, mother called Saldivar to tell her about D.V.’s
accusations. Mother asked Saldivar to come to her house to talk about the letter; Saldivar
brought Artis with her. According to mother, when she showed Artis the letter from
D.V., Artis initially denied the allegations and repeatedly asked to talk to D.V., which
mother would not allow. But after mother “yelled at [Artis] like just stop lying, like just
admit it,* * * he just broke down and he was shaking and crying and saying like, I don’t
know what I did, I pulled her pants down, no I didn’t pull her pants down. * * * [H]e just
kept saying I didn’t—he was like I didn’t mean to hurt her, just tell her come here, just let
me talk to her.” Rather than continue the conversation with Artis, mother told him to
leave.
{¶ 20} D.V. recalled Artis and Saldivar’s visit slightly differently. She testified
that
[m]y mom kept telling me to come out there to tell them like what
happened, but I didn’t want to face [Artis], so I refused to go out there, and
they made him go downstairs and I went—that’s when I came out, went to
my mom’s room with my mom and Blanca, and she was like tell her what
happened. And I told her, and she was just like—she like kept questioning
me like about it, like asking me different questions about it, and eventually
she just was like I’m sorry. * * * I don’t remember like the whole
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conversation. I just know I told her and she was like questioning about it,
and they eventually left.
{¶ 21} Jennings testified that she was in her bedroom with D.V. when Artis and
Saldivar came to the house. She said that mother’s conversation with Artis and Saldivar
took place in mother’s bedroom with the door open, and that she was peeking her head
out of her room while the conversation happened. Jennings overheard mother, Artis, and
Saldivar talking about “him touching on [D.V.].” According to Jennings, “[a]ll [she]
heard was that [Artis] touched [D.V.] and he didn’t mean to.” She described Artis as
“acting nervous” that day based on “just how he was looking and everything like he was
nervous.”
{¶ 22} After the confrontation at mother’s house, Artis texted mother, and they
engaged in the text conversation that Morford testified to. Mother said that Artis was the
person whose phone number that she saved in her phone’s contacts as “Lee.” While
reviewing the text messages for the jury, mother also claimed that she had heard rumors
that Artis was telling other people that D.V. “was rubbing on [Artis] and pulled his thing
out,” or that Artis was claiming that any sexual contact with D.V. was consensual.
{¶ 23} The day after D.V. gave mother her letter, mother took her to the hospital
for an examination. Amanda Brigode, the SANE who examined D.V., testified that D.V.
volunteered information and was alert, oriented, calm, and cooperative during the exam.
She said that D.V. avoided eye contact while telling her story, spoke slowly and in a
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whisper, was tearful, and talked and cried at the same time. Brigode recorded D.V.’s
statement about the rapes in her medical records, which Brigode read during her
testimony. According to Brigode’s records, D.V. reported that
[the touching] started when I was 13. He would come into my room
at night and put his hands under my blanket and try to push my legs apart
and tell me to make room. I didn’t know what he was doing. I was scared.
Another time he tried to put pulling [sic] my pants down and sticking it in.
I think it went in my butt because it hurt really bad. I was able to get away
from him. * * * One time he came into my room and was pulling my pants
down and he put his mouth down there. I was kicking him to get off me.
He put his fingers in me, too. My cousin ended up coming into the room
and asked him what he was doing.
Regarding the incident that precipitated D.V.’s report of the abuse, Brigode testified that
D.V. reported that
my mom went to the store and he was there. He gave my sisters his
phone so that they could leave us alone—or would leave us alone. He
grabbed me by the arm and pulled me downstairs to the kitchen. He held
me against the wall and he pulled my pants down. He tried to put it inside
me. It went in a little bit and it hurt—and hurt so I jumped and I was able
to get away from him.
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At trial, D.V. testified that she went downstairs of her own accord, despite telling Brigode
that Artis had grabbed her by the arms and dragged her downstairs.
{¶ 24} Brigode’s narrative also included D.V.’s identification of Artis as the
person who assaulted her, and mother’s statements that the “perpetrator” had come to
mother’s home the day before and that he “eventually became tearful and admitted to
having gone too far. Stating that he didn’t mean to hurt her.” Additionally, mother told
Brigode that she “received a phone call from perpetrator’s mother this a.m. requesting
that she not go to the police.” Brigode clarified on cross-examination that she does not
“form an opinion” on whether the person the victim identifies as the perpetrator actually
committed the assault; she “just simply note[s] what they report.”
{¶ 25} Brigode said that she conducted her physical examination of D.V. about six
days after the last incident of sexual assault. Because the exam happened more than 72
hours after the assault, Brigode was precluded by state law from collecting forensic
evidence. Thus, there was no DNA evidence in this case. During the physical exam,
Brigode photographed a bruise on D.V.’s forearm, which D.V. reported was from Artis
grabbing her arm during the assault. Because everyone’s bodies heal differently, Brigode
is unable to predict the rate of healing for bruises. The only other injury that Brigode
noted was some tenderness in one area of D.V.’s vaginal wall. Although Brigode could
not say for sure what caused the tenderness in that area, she “wouldn’t attribute that to
[her] exam.” She did not see any injuries to D.V.’s hymen. Brigode testified that it is
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“rare” to find traumatic injuries in a child’s vaginal area because of anatomical reasons
and because most people who are sexually assaulted do not fight their attacker.
Moreover, if there had been any injury to D.V.’s hymen, Brigode “anticipated that it
would have been healed by the time that [she] saw [D.V.] in that six day period.”
{¶ 26} Following the SANE exam, mother took D.V. to the police station to report
the rapes. Kincaid was assigned to investigate. She met with D.V. and mother several
days later. According to Kincaid, mother was “still pretty hot under the collar about the
whole incident occurring,” while D.V. was “matter of fact, just plain solid like a record, *
* * like monotone voice talking about what happened.” Kincaid also interviewed
Jennings as part of her investigation.
{¶ 27} During D.V.’s interview, she told Kincaid “the story, the same story like
when it first happened and like from where it really affected me and pushed me to tell my
mom and like I told her the events and like where it happened and what happened and
what house and everything.” Additionally, mother told Kincaid about the text messages
between her and Artis and gave Kincaid her phone so that the TPD could retrieve the
messages.
{¶ 28} In addition to interviewing D.V. and mother, Kincaid spoke to Jennings,
“reached out to” Artis, and attempted to contact Saldivar. She confirmed that there was
no DNA evidence in this case.
15.
{¶ 29} Following Kincaid’s testimony, the state rested, and Artis moved for
acquittal under Crim.R. 29. His entire argument was that “the State has failed to produce
evidence sufficient to support a conviction on Counts 1, 2, or 3.” The state responded
that it had “presented sufficient evidence regarding each and every element of the
offenses of rape charged in the indictment sufficient to put the case before the jury’s
consideration.” The court denied the motion because “given specifically the testimony of
the alleged victim and the SANE nurse who testified yesterday, there is sufficient
evidence to establish a prima facia case as to each element of the charges before the
Court.”
C. Artis’s case
{¶ 30} In his defense, Artis called Saldivar to testify and presented the video
deposition of Metherd, an obstetrician/gynecologist.
{¶ 31} Before Saldivar testified, the court became aware that she had been in the
courtroom the day before, despite the court’s separation-of-witnesses order. When the
court questioned Saldivar about her presence in court, she claimed that she was unaware
that she could not be in the courtroom, she had seen mother and Brigode testify, she did
not speak to Artis’s lawyers until after court concluded that day, and, although she had
spoken to mother, mother did not tell her that prospective witnesses could not be in the
courtroom. The court permitted Saldivar to testify, but to remedy the violation of the
separation order, the court prohibited the parties from asking questions about testimony
16.
that Saldivar heard the day before. The court also explained the separation order to the
jurors and told them that “yesterday [Saldivar] was present in court contrary to this
Court’s separation order. You are to use this witness’s transgression and apply it to her
credibility in any way you choose if at all.”
{¶ 32} Saldivar testified that she is Artis’s girlfriend and that they have two
children together. She said that she spoke to mother “[h]ere and there” during the time
that they had known each other, but, generally, mother would call or text Saldivar “only
when it came to asking to borrow money or to sell food stamps.”
{¶ 33} Regarding the night that D.V. and her sibling stayed at Artis and Saldivar’s
house, Saldivar testified that she and Artis were in bed together when Artis’s friend
called and asked him to go out. Artis returned around 4:30 a.m. On cross, Saldivar said
that Artis was out with friends, but she did not know specifically where he went.
{¶ 34} When the couple got up around 8:00 a.m., the children were all asleep
downstairs. The children were still sleeping when Saldivar left to take Artis to work.
When she returned from dropping off Artis, the children were awake. Saldivar was
pregnant at the time and did not feel up to taking the children on their planned outing, so
she and the kids stayed at the apartment all day. Saldivar said that there was nothing out
of the ordinary about D.V. that day; D.V. “was calm. She was chill. She was playing
with the kids, the two younger kids, watching TV, just playing.”
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{¶ 35} Regarding the morning that mother disclosed D.V.’s accusations to Artis
and Saldivar, Saldivar testified that she received a call from mother asking her to come to
mother’s home. When Saldivar and Artis got to mother’s house, Saldivar said that Artis
stayed downstairs while she went upstairs to mother’s room. Mother gave Saldivar
D.V.’s letter, and Saldivar
read the letter both sides, and then I told [mother] I said, okay, where
do we go from here. And she said, I don’t know, I’m a little confused. I
don’t know what to do. I don’t know what to believe. I don’t know what
to think. And then she said she’s going to talk to her daughter and
whatever her daughter decided to do was what was going to happen.
Mother then called Artis upstairs. He and mother smoked marijuana while mother
continued to talk to Saldivar about D.V.’s accusations. Saldivar said that eventually
mother “asked [Artis], she was like did you did do it, why did you do it, and he just said
no, and we left [it] at that.” Artis did not admit or confess to anything while he was in
mother’s room.
{¶ 36} Mother continued to talk to Saldivar about the accusations, so Saldivar told
Artis to go downstairs and get ready to leave. While Artis was waiting downstairs,
Saldivar told mother, “whatever you need to do, whatever you feel you need to do do it.
There’s nothing I could say or do to change your mind. Just your [sic] the mother do
whatever you want to do.” At this point, D.V. came into mother’s bedroom. Saldivar
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said that D.V. sat on the bed and “doesn’t say one word.” Saldivar told her, “I
understand you showed me this letter, okay, do what you got to do, and then I left.”
{¶ 37} On cross, Saldivar clarified that Artis never read D.V.’s letter. She thought
that mother handed him the letter, “but he didn’t read it cause [Saldivar] just told him like
it doesn’t even matter, just don’t worry about it.” She reasoned that “anything he had
said at that point would have looked bad. So, [she] was doing it on his behalf to not add
fuel to the fire at the [sic] point.” Artis was “confused, hurt, [and] upset” during the
confrontation, but was not crying. Saldivar did not recall seeing Jennings at all while she
was at mother’s house.
{¶ 38} Additionally, the prosecutor elicited from Saldivar that she had spoken to
Artis and his attorneys about her testimony, but had not spoken to Kincaid, any other
TPD officers, or the prosecutors about the case. Although the state sent her letters telling
her to come in for a pretrial interview, the times and dates chosen by the prosecutors “fell
on days that I had to work, and I just couldn’t get out of my work schedule. So, it was a
personal decision that I made on myself to not appear.” While she admitted that Artis
was facing serious charges, when the prosecutor asked if Saldivar “didn’t think this
matter was important enough to miss work or try to get off of work to appear for either of
those interviews[,]” Saldivar responded that the “letters don’t indicate the severity of why
I needed * * * to be interviewed. * * * Yes, the charges are severe. It is, but I have two
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children to provide for. I’m sorry, I chose to go to work than [sic] to come do an
interview.” She also said that no one advised her to not meet with the prosecutors.
{¶ 39} Artis’s final witness was Metherd, an expert in the fields of obstetrics and
gynecology. He reviewed D.V.’s medical records from the SANE exam and issued his
opinions based only on the records.
{¶ 40} Based on D.V.’s report to Brigode that her vagina was penetrated by a
“Penis, Finger and Tongue” and there was attempted penetration of her anus by a penis,
Artis’s attorney asked Metherd if he had opinions on whether these instances of
penetration occurred. Metherd testified that it was “hard to be certain” whether D.V.’s
vagina was penetrated with a finger because there were too many unknown variables that
could affect evidence of digital penetration. Thus, he could not say to a reasonable
degree of medical certainty that D.V.’s vagina was penetrated by a finger. Nor could he
determine from the information in the medical records whether oral sex had been
performed on D.V. However, Metherd believed that penile penetration had not occurred.
{¶ 41} D.V.’s medical records noted that there was “No Acute Injury” to D.V.’s
hymen and described the hymen as “Pink, Redundant, Annular, Thick and Fluffy.”
Metherd said that this description is not indicative of a hymen that had suffered trauma,
and he opined that a patient with this type of hymen would not have experienced what
counsel called “penile insertive [sic] sex.” And, while Metherd would “not necessarily”
expect to see acute injuries in the vaginal area approximately one week after a sexual
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assault, he would “expect the hymen to have a different appearance if there had been
penile penetration.” He would also expect the hymen to have a different appearance if it
had suffered some type of trauma during digital penetration. Based solely on the
description of the hymen, it was Metherd’s expert opinion that D.V.’s vagina was not
penetrated past the hymen by a penis.
{¶ 42} Metherd also reviewed the photographs that Brigode took of D.V.’s arm.
Although he noted “a slight discoloration in one area * * *,” he was “having a difficult
time seeing a bruise * * *” in the photographs. He said that, assuming a person was
grabbed forcefully by the arms and pulled down a flight of stairs, he would “[a]t some
point, probably” expect to see a bruise or some type of markings where the person was
grabbed.
{¶ 43} Regarding the tenderness of the vaginal wall that Brigode recorded,
Metherd said that the tenderness could have resulted from a physical examination of the
vagina.
{¶ 44} On cross-examination, Metherd confirmed that he did not examine D.V.
himself, but had only reviewed her medical records, although he believed that “[i]t’s
always better to see the patient yourself for everything.” He also admitted that he had
never been qualified as an expert in sexual-assault examinations. Metherd had conducted
approximately a dozen sexual-assault exams in his career, but the majority of those
occurred while he was a medical resident more than 30 years ago.
21.
{¶ 45} Metherd could not definitively provide a typical rate of healing for vaginal
injuries because healing depends on the type and extent of the injuries. However, based
on D.V.’s description of the assault, Metherd said “that does not sound like trauma was
inflicted * * *” because he did not “see any indication that [the perpetrator] used any type
of foreign object [or] any indication that she expressed that [her vaginal area] was
painful” after the assault was over. He said that he would not expect to see injuries to the
area six days after the assault if there was no trauma to the area, which he defined as
“breaking the skin or putting added pressure on an area that would cause bruising.”
{¶ 46} Metherd also said that he had “not rendered an opinion on whether an
assault occurred. [That] depends on what your legal definition of an assault is.” The
prosecutor defined intercourse as occurring when there was “penetration, however slight,
* * *” and asked if Metherd could give an opinion on whether penile penetration
occurred. He responded that “it’s fair to say that no penis has gone past that hymen.” It
became apparent after repeated questioning by the prosecutor that Metherd’s opinion was
based on the medical definition of the vaginal opening (which is past the hymen), so he
was not opining on the occurrence of penetration into any vaginal structures in front of
the hymen. Metherd could not opine on whether anal or digital penetration had occurred.
{¶ 47} Artis rested after Metherd’s testimony. He renewed his Crim.R. 29 motion
at the close of his case, arguing that the state “[f]ailed to provide any affirmative evidence
that [D.V.] has been penetrated by a penis vaginally. They failed to provide affirmative
22.
evidence beyond a reasonable doubt that [D.V.] has been penetrated by a penis anally.
Also failed to provide [D.V.] has been penetrated by a finger.” The state responded that
it had produced evidence to prove every element of each count. The court again denied
Artis’s motion on the same basis as before.
{¶ 48} After hearing the evidence, the jury acquitted Artis of count 1 and
convicted him of counts 2 and 3.
D. Artis’s motion for a new trial and sentencing
{¶ 49} Following the trial, Artis retained new counsel, Neil McElroy, who moved
for a new trial under Crim.R. 33. In his motion, Artis alleged that his attorneys provided
ineffective assistance of counsel by relying on a trial strategy that required the admission
of specific evidence—the majority of which the trial court excluded—and not telling
Artis that there was a possibility that the evidence would be excluded or realizing that the
evidence was inadmissible. He claimed that counsel’s failure caused him to make an
uninformed decision about the plea offer the state made after the first day of trial. Artis
also alleged that he was denied a fair trial because, in response to his motion in limine
requesting a Daubert hearing on Morford’s testimony, the state represented that it would
not seek to qualify Morford as an expert. At trial, however, the state sought to qualify
Morford as an expert, which the court allowed. Artis argued that the admission of
Morford’s expert testimony without holding a Daubert hearing “deprived [him] of full
and complete litigation of the issues raised in * * *” his pretrial motions.
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{¶ 50} The state responded that counsel’s decisions regarding the evidence were
trial strategy, and the not-guilty verdict on count 1 tended to show that counsel were not
ineffective. The state also argued that, although Morford was qualified as an expert, he
did not offer any expert opinions during his testimony. Regardless, Artis invited any
error by asking the trial court to voir dire Morford on his qualifications to extract data
from cellphones, so Morford was only qualified as an expert because of Artis’s actions.
{¶ 51} At the hearing on Artis’s motion, Roberts and McGeorge each testified
regarding their representation of Artis. Regarding their qualifications, McGeorge
testified that he was a sole practitioner who handled “[c]ivil litigation, business litigation,
child custody, * * * a little bit of criminal defense, and divorces.” The criminal cases he
handled were “[m]ainly misdemeanors.” At the time of the hearing, he had been
practicing for almost four years. Although he had done civil trials, Artis’s trial was his
only criminal trial. Roberts testified that he was a criminal defense attorney and had been
practicing for approximately three years at the time of the hearing. He had done five
trials in his career, but Artis’s trial was his first felony trial. He did not tell either Artis or
his family that it was his first felony trial.
{¶ 52} Artis first hired Roberts to represent him. McGeorge became involved in
Artis’s case when Roberts approached him about the “possibility of excluding text
messages in this matter through motion practice as well as oral motions,” which was an
issue that McGeorge had previously handled in civil and domestic relations cases.
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Roberts said that the evidentiary issues surrounding the text messages were “of the
utmost importance.” To that end, Artis’s defense team filed motions to exclude and a
request for a Daubert hearing regarding Morford’s testimony. Nevertheless, Roberts said
that his “entire trial strategy was expecting the text messages to be included.” He
testified that he never told Artis to expect the texts to be excluded.
{¶ 53} McGeorge discussed with Artis the possibility that the court would
overrule his motions related to the text messages. McGeorge did not agree with
McElroy’s characterization of the text messages as “inculpatory.” But McGeorge
“believe[d] the text messages were not in a positive light for Mr. Artis and that those text
messages should they get in would be more harmful than good.” Roberts agreed that
“those text messages would be very problematic for [Artis’s] case.” Later in the hearing,
Roberts went further and said, “[o]f course they’re practically inculpatory. He practically
admits to raping a young girl in them, so, yeah, it’s pretty important to [the state’s] case.”
{¶ 54} Before trial, the state offered to allow Artis to plead guilty to one count of
rape with no recommendation for the sentence. Roberts and McGeorge discussed the
offer with Artis. McGeorge did not recall specifically what he told Artis about whether
to take the plea deal. Roberts explained to Artis the different potential outcomes if he
went to trial rather than accept the state’s offer, but “[u]ltimately it was his decision
because he was the one who was going to have to wear the orange jumpsuit if he was
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found guilty.” At the time the state made this offer, McGeorge believed that Artis “could
be successful at trial if the text messages were excluded.”
{¶ 55} After the first day of trial—when Roberts and McGeorge were
unsuccessful in excluding Morford’s testimony and the text messages were admitted—the
attorneys met with the trial judge in chambers to discuss the possibility of a plea.
McElroy asked McGeorge if it was “clear that the Judge called everyone in [to chambers]
because things just went really bad[.]” As McGeorge was responding, “I wouldn’t
characterize it as that,” the trial judge interrupted with “I would.” The court went on to
explain that
I called counsel into Chambers after I heard Detective Morford
testify and what those text messages alleged when the victim’s mother
writes the text, and I will not quote it correctly, you raped my daughter, and
his text message back was something to the effect I’m so sorry for my,
quote, dumb ass actions. I called counsel into Chambers after the jury was
released, closed the door, and I told the State of Ohio they were going to
make an offer. They were going to make an offer on this case, and that [the
defense attorneys] will strongly recommend their client take it. Mr.
Roberts said that he wouldn’t take anything under [sic] 6 years. [The
prosecutor] said she would be personally offended at anything under 8
years was offered on this case or was ordered. The next morning [the
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prosecutor] comes back with five years. Less than what Mr. Roberts
wanted. Less than what [the prosecutor] indicated would be offensive. I
am the person who took them in Chambers and told the State of Ohio that
they were going to make a better offer than they had made before.
McGeorge agreed with the court’s account of the meeting in chambers. During the
meeting, McGeorge told the prosecutors that “if a plea offer between three to five years
was presented, it’s possible that we could come to a resolution with Mr. Artis accepting
that.” Roberts testified that he told the prosecutors that he thought he could get Artis to
plead to a charge of unlawful sexual conduct with a minor. The state indicated that it
would let Artis’s defense team know later that night if it was willing to offer a plea deal.
{¶ 56} Artis and his attorneys met after the in-chambers discussion to advise Artis
of the outcome of the meeting. McGeorge told Artis that if the state offered a deal that
included a three- to five-year sentence, “he should seriously consider it and talk to—talk
with his family about it that night prior to making any decision and coming back to
court.” That night, the state made an offer for Artis to plead guilty to one count of rape
with a five-year agreed upon sentence. Roberts called Artis to relay the state’s offer.
Because he met with Artis after trial that day to discuss the pros and cons of an offer that
included a three- to five-year sentence, he did not meet with him again after the state
made its offer. He testified that McGeorge and Richard both thought that Artis should
take the plea, but Roberts
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was more noncommittal. I left it in his hands because I believe that
strongly that he has a constitutional right to a trial, and it’s his decision, and
* * * he was the one who ultimately would have to go sit for five years if he
did take that deal. What I told him was so far from what we’ve been
preparing for nothing has changed. The text messages came in. We
thought they were going to come in. We knew that they could be very
problematic to your case. If you still believe that you’re—if you still
strongly say you’re innocent, didn’t do this, and you want your day in
court, let’s keep going with the trial. You’ve had a chance to see what
the—how the jury responds to those text messages. If that changes your
opinion today, then you need to take this deal.
If the state had offered the unlawful sexual conduct charge, Roberts would have made
greater efforts to get Artis to take the plea deal. But he said that “Mr. Artis was adamant
that he did not commit this and he was not taking a plea.”
{¶ 57} Roberts said that the admission of the text messages did not change his
opinion on how the trial would turn out; he still “thought [Artis] was going to have a very
tough time being acquitted.” He said that he shared his opinion on the outcome with
Artis “[i]n not those words, but yes, I believe that was conveyed to him.”
{¶ 58} McGeorge also claimed that he and Roberts “did make strong
recommendations that [Artis] take a plea. I personally made a strong recommendation
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that he should take a plea anywhere between three to five years.” But McGeorge did not
speak with or visit Artis the night the state made its offer; he had only a brief discussion
with Artis the next morning before trial.
{¶ 59} On the second day of trial, Artis’s lawyers attempted to impeach mother’s
testimony by using some printed Facebook posts and screenshots of a text conversation
between mother and Saldivar in which mother offered to sell her food stamps to Saldivar.
The trial court excluded the exhibits, and Artis’s attorneys did not make a proffer of the
exhibits. McGeorge believed that the posts and texts were admissible under one of the
exceptions to the hearsay rule, although he could not recall which one. According to
Roberts, he believed that the text messages would come in through Saldivar’s testimony,
but they “abandoned that after [Saldivar] gave testimony that was inconsistent with what
she had told us previously and which was detrimental to Mr. Artis’s case.”
{¶ 60} Both attorneys also thought that the Facebook posts were potentially
admissible as evidence of mother’s character. McGeorge said that they wanted to use the
posts to “assist in discrediting [mother’s] text messages between herself and Mr. Artis”
because mother posted Artis’s messages to her, but did not include her messages to him.
McGeorge said that they wanted to use the fact that mother posted “doctored” text
messages to Facebook to show that “there was the potential that those text messages were
doctored prior to the cell phone [sic] being handed over to the detective who did the
extraction.” However, the attorneys did not subpoena Facebook for records. And,
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although they sent a subpoena to one cellphone carrier, when they learned that the carrier
did not service mother’s phone number at the time the messages were sent, they did not
try to subpoena the correct carrier because, according to Roberts, their “strategy changed
after that subpoena was sent.” McGeorge said that they decided to “us[e] separate
evidence in order to try and prove that those text messages [in mother’s Facebook posts]
were doctored.”
{¶ 61} On cross-examination, each attorney said that he discussed with Artis his
constitutional rights, the maximum penalties he would face if convicted of all charges,
the lesser penalties he would face if he accepted the plea offers, possible defenses to the
charges, and evidence for and against his case. Regarding the initial plea offer, the
attorneys and Artis decided together that Artis did not want to take the plea because there
was no recommended or agreed upon sentence. This was before the trial court ruled
against Artis’s pretrial motions addressing Morford’s testimony, and they “did not
believe at that time there would be sufficient evidence if the text messages were excluded
to convict him.”
{¶ 62} Once the text messages came in, McGeorge said that their plan was to
negate the impact of the messages by “attempt[ing] to discredit [mother] as well as
discredit Detective Morford.” He noted that, although their strategy was not effective on
counts 2 and 3, it worked and resulted in a not-guilty verdict on count 1. They also had a
plan in place to bolster Artis’s testimony if he took the stand, but ultimately Artis opted
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not to testify. McGeorge “[e]xplicitly” told Artis that “it would not be a good idea to
testify * * *.”
{¶ 63} Roberts and McGeorge gave Artis their best advice regarding the pleas, and
Artis chose to decline them. According to McGeorge, Artis declined the state’s last plea
offer because “he advised us that he did not rape or have any sexual contact with [D.V.].”
Roberts agreed that Artis was “adamant and denying it.” Although McGeorge believed
that Artis should take the state’s offer, neither he nor Roberts told Artis that he should
take the deal, but told Artis that it was up to him. Given the highly damaging nature of
the text messages, Roberts said that he “was confident that we were providing him the
best defense possible based on his wishes to have a trial.”
{¶ 64} Artis’s next witness was attorney Ronnie Wingate. Artis attempted to offer
Wingate as an expert in criminal defense. The court did not allow it, but recognized
Wingate’s “experience as learned counsel.”
{¶ 65} Wingate agreed with McElroy’s characterization of the texts as
“particularly inculpatory[.]” In his opinion,
an acquittal was not going to happen, that in all likelihood [Artis]
would be convicted, and if convicted he would be looking at a much higher
penalty * * *. With that being said, then at some point you have to decide
whether or not you’ re going to minimize the damages, and in this case if
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the State is ordering a single count of rape with a five year sentence, agreed
upon sentence, * * * then that is something that he should accept.
He indicated that he would inform a client in the same position that “in all likelihood if
you proceed to trial you will be found guilty. And * * * it may not be what you want to
do, but it would be the smartest thing for you to do to accept this plea and resolve this
matter with as minimum damage as possible.”
{¶ 66} Due to the inexperience of Roberts and McGeorge, Wingate did not believe
that Artis received effective assistance of counsel at trial.
{¶ 67} Finally, Artis testified in his own behalf. He said that he had not been
through a trial before and relied on his lawyers to inform his decisions. When the state
made its five-year offer, Roberts called Artis and told him that he “shouldn’t take it
because he felt like he had a good chance of beating the case * * * [b]ecause he felt like
he had a good strategy to beat it.” He claimed that if Roberts had told him that there was
a strong likelihood that he would be convicted, Artis would have accepted the plea deal.
{¶ 68} On cross, Artis conceded that McGeorge told him to accept an offer from
the state that included a three- to five-year sentence. Although he also conceded that it
was his choice to reject the plea offer, he insisted that he only did so because “my lawyer
and I came to a decision that I should deny the offer.”
{¶ 69} The trial court asked Artis when he decided he wanted to take the plea deal.
After some back-and-forth between the judge and Artis, Artis admitted that he decided
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that he wanted to take the deal after the second day of trial when “everything got in, then
nothing they tried their strategies didn’t work.” He said that he talked to his lawyers
about pleading at that point, but Roberts “felt like he had a good chance of getting me
basically acquitted.” The judge pointed out to Artis that he said during his presentence
investigation interview that he wanted a trial “[t]o show [his] innocence.” When the
court asked if Artis “wanted a new trial to show your innocence. You don’t want a new
trial so you can plea; is that fair?” Artis responded, “Yeah, but I would take a plea * * *.”
When McElroy asked a follow up question, Artis clarified that he initially misunderstood
the possible outcome of a successful motion for a new trial. He was not asking the court
for a new jury trial, but was “asking [the court] to consider giving me the plea so I can
take the plea.”
{¶ 70} Following the testimony and argument from counsel, the trial court denied
Artis’s motion. The court noted that it “was not obvious during the trial” that Roberts
and McGeorge were defending their first felony trial because “[t]hey objected a lot, to
almost everything. And they had arguments. They had case law. They had statutes they
would bring up here and argue on the record why I should rule a certain way. And they
just didn’t win.” It also noted that the screenshots of mother’s Facebook posts and the
text messages between mother and Saldivar were not admitted at trial because they
addressed a collateral issue. The court disagreed with Artis’s assessment that the text
messages between him and mother were what resulted in his conviction. Instead, the
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court believed that when D.V. “spoke the way she did in front of this jury [Artis] was
going to get convicted. Text messages, no text messages, doesn’t make a difference. It’s
her. It’s not pieces of paper that got him convicted.” The court concluded that Artis’s
trial attorneys provided adequate representation because they met the threshold for
competence under the Sixth Amendment and that the court’s denial of a Daubert hearing
regarding Morford’s extraction of mother’s cellphone did not affect Artis’s substantial
rights because he was not entitled to the hearing. The court also believed that Artis had
“buyer’s remorse” and would only have accepted a plea deal after he was convicted.
That is, it was the jury’s verdict—not the advice of counsel—that caused Artis to have a
change of heart.
{¶ 71} Immediately after ruling on Artis’s Crim.R. 33 motion, the trial court
sentenced him to a mandatory eight-year prison term on count 2 and a mandatory nine-
year prison term on count 3. The court ordered Artis to serve the sentences consecutively
for an aggregate prison term of 17 years.
E. Assignments of error
{¶ 72} Artis appeals the trial court’s decision, asserting three assignments of error:
I. Appellant received ineffective assistance of counsel in violation of
his rights under the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, §10 of the Constitution of the State of Ohio.
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II. The trial court erred in denying Appellant’s Crim.R.29 [sic]
motion.
III. The jury’s verdict was against the manifest weight of the
evidence presented at trial.
II. Law and Analysis
A. Artis received effective assistance of trial counsel.
{¶ 73} In his first assignment of error, Artis argues that Roberts and McGeorge
were ineffective for numerous reasons: (1) they lacked felony-trial experience, but did
not disclose that to Artis, and the record is “void of any substantive legal statement,
contribution or decision * * *” from Richard, the most experienced attorney on the case;
(2) based on the “increased risk of conviction” after the text messages came in on the first
day of trial, “it is impossible to justify counsel’s lack of any attempt to persuade [Artis] to
accept the State’s offer * * *”; (3) neither Roberts nor McGeorge was able to articulate
their trial strategy to preclude the admission of the text messages between mother and
Artis; (4) counsel did not object to the admission of Morford’s Cellebrite extraction
report; (5) although Roberts said that he wanted to plead to unlawful sexual conduct with
a minor, a lesser included offense of rape, counsel did not request jury instructions on the
lesser included offense; (6) neither Roberts nor McGeorge was able to articulate their
trial strategy to admit the Facebook posts and the text messages between mother and
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Saldivar; and (7) counsel did not make a proffer of the Facebook posts or text messages
between mother and Saldivar once the trial court excluded them.
{¶ 74} The state responds that (1) Roberts’s and McGeorge’s inexperience did not
cause their performance to fall below an objective standard of reasonable representation,
which refutes Artis’s claims related to the plea agreement; (2) the majority of Artis’s
arguments about counsel’s strategy are refuted by the record, and, regardless,
unsuccessful trial strategy is not a basis for a finding of ineffective assistance; (3) failure
to proffer evidence does not automatically make counsel ineffective; and (4) unlawful
sexual conduct with a minor is not a lesser included offense of rape, so counsel could not
be ineffective for failing to request an unlawful-sexual-conduct jury instruction.
{¶ 75} To prevail on a claim of ineffective assistance of counsel, the appellant
must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Properly licensed Ohio lawyers are presumed to be competent, State v. Gondor,
112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, and there are “countless”
ways for an attorney to provide effective assistance in a case, so “‘[j]udicial scrutiny of
counsel’s performance must be highly deferential.’” State v. Bradley, 42 Ohio St.3d 136,
142, 538 N.E.2d 373 (1989), quoting Strickland at 689.
36.
{¶ 76} To establish ineffective assistance of counsel, the appellant must show “(1)
deficient performance of counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” State v. Sanders, 94
Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland at 694.
{¶ 77} Counsel is “strongly presumed” to have rendered adequate assistance and
“the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” State v. Smith, 17 Ohio
St.3d 98, 100, 477 N.E.2d 1128 (1985), quoting Strickland at 694-695. Generally, trial
strategy and tactical decisions—even debatable ones—cannot form the basis of a claim of
ineffective assistance of counsel. State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-
Ohio-2603, ¶ 22. Similarly, counsel’s inexperience—alone—is not sufficient to show
that counsel was ineffective. State v. Wilson, 5th Dist. Delaware No. 2006CA100082,
2007-Ohio-4564, ¶ 55 (“The fact that this case was counsel’s first jury trial does not
equate to ineffective assistance of counsel. Every attorney has to have a first jury trial.”
And when a defendant retains counsel, he “cannot fault the inexperience of his own
choice of attorney.”); State v. Lopshire, 11th Dist. Portage No. 2005-P-0037, 2006-Ohio-
3215, ¶ 37, quoting State v. Peoples, 28 Ohio App.2d 162, 275 N.E.2d 626 (2d
37.
Dist.1971), paragraphs five and six of the syllabus (“‘Mere inexperience or
unskillfulness, mistakes or errors of judgment, and improper trial strategy in connection
with the case are ordinarily insufficient to justify setting aside a judgment of conviction
because of the claimed incompetency of retained counsel for the accused” unless
“retained counsel’s representation has been so inadequate as to make the trial a farce and
a mockery of justice * * *.’”).
{¶ 78} Initially, we agree with the state that the record contradicts many of Artis’s
claims of errors by counsel. For example, although Artis claims that counsel could not
articulated their trial strategy at the hearing on his motion for a new trial, McGeorge
testified to the efforts they made at excluding Morford’s testimony and, ultimately, the
text messages between mother and Artis. Both attorneys also testified to their (ultimately
unsuccessful) plan to impeach mother’s testimony. Additionally, Roberts objected to the
admission of Morford’s Cellebrite report, despite Artis’s claim to the contrary.
{¶ 79} We also note that the majority of Artis’s complaints relate to counsel’s trial
strategy. While some of the thought process behind Roberts and McGeorge’s trial
strategy was flawed, and their strategy was ultimately less successful than they hoped,
nothing that counsel did was so far outside of the realm of reasonable representation that
it amounted to ineffective assistance. For example, whether and how to cross-examine
and impeach a witness is a matter of trial strategy that does not constitute ineffective
assistance, State v. Ford, 12th Dist. Madison No. CA2019-10-027, 2021-Ohio-782, ¶ 17,
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as is whether to object to certain testimony and evidence. State v. Holmes, 6th Dist.
Lucas No. L-17-1111, 2019-Ohio-896, ¶ 95. Roberts and McGeorge made these types of
decisions while defending Artis, and we, as the reviewing court, cannot use hindsight to
second-guess counsel’s strategic decisions. State v. Mason, 82 Ohio St.3d 144, 157, 694
N.E.2d 932 (1998).
{¶ 80} As to the other areas in which Artis argues that trial counsel were lacking,
we do not find that Roberts’s and McGeorge’s actions rose to the level of ineffective
assistance. Regarding the state’s plea offer after the first day of trial, advice telling a
client to either accept or reject a plea deal is not per se ineffective assistance. See State v.
Taylor, 10th Dist. Franklin No. 14AP-166, 2014-Ohio-3574, ¶ 14-15; State v. Day, 2019-
Ohio-4816, 149 N.E.3d 122, ¶ 28 (4th Dist.). To establish ineffective assistance in
connection with plea negotiations, in addition to showing that his attorneys provided
deficient representation, the appellant must demonstrate a reasonable probability that (1)
the appellant would have accepted the plea offer, (2) the state would not have withdrawn
the offer and the court would have accepted the offer, and (3) the conviction, sentence, or
both would have been more favorable to the appellant. State v. Casey, 2018-Ohio-2084,
113 N.E.3d 959, ¶ 24 (12th Dist.), citing Lafler v. Cooper, 566 U.S. 156, 164, 132 S.Ct.
1376, 182 L.Ed.2d 398 (2012).
{¶ 81} Artis has not shown that his attorneys provided deficient representation by
giving him their assessment of his chances of successfully defending against the rape
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charges after his text messages to mother were admitted on the first day of trial. Roberts
and McGeorge acted reasonably in advising Artis and in not attempting to force him into
taking the plea when he continued to profess his innocence. While other attorneys might
have handled the situation differently, that does not make Roberts and McGeorge’s
approach objectively unreasonable. Although Artis testified that Roberts explicitly told
him to reject the offer because he thought that they could win at trial, the trial court chose
to believe Roberts and McGeorge’s testimony over Artis’s, classifying Artis’s change of
heart as “buyer’s remorse” when he realized that he was facing far more than five years
in prison. Beyond that, as the trial court pointed out, whether Artis would have accepted
the plea offer before he was convicted is questionable. Taking all of this into
consideration, we cannot find that Artis’s trial counsel were ineffective in this regard.
{¶ 82} Artis also fails to show that counsel’s relative inexperience resulted in their
representation falling below an objective standard of reasonable representation. A
lawyer’s inexperience does not per se make him or her ineffective because all properly
licensed Ohio lawyers are presumed to be competent. State v. Vunda, 12th Dist. Butler
Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 61. It is up to Artis to
show that his attorneys’ lack of experience equated to a lack of competence, which he has
failed to do. Roberts and McGeorge effectively argued Artis’s case—which resulted in
an acquittal on the anal rape charge—cross-examined witnesses, and countered aspects of
the state’s case. As the trial court noted, it did not know until the hearing on Artis’s
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motion for a new trial that both Roberts and McGeorge were defending their first felony
jury trial, nor was it apparent to the court from Roberts’s and McGeorge’s performance
that they lacked felony-trial experience. The fact that they made some missteps and were
not successful in getting Artis acquitted of all three charges does not mean that they were
ineffective. Additionally, they had Richard, a seasoned attorney, on the defense team,
and Artis does not allege that Richard was incompetent or ineffective, simply that the
record does not show that Richard made any affirmative contributions to his case. An
allegation that only part of the defense team was ineffective weighs against a finding that
a defendant received ineffective assistance of counsel. See id. Because Artis has not met
his burden of showing that his attorneys’ inexperience caused their representation to fall
below an objectively reasonable standard of representation, we find that counsel was not
ineffective in this regard.
{¶ 83} Next, Artis argues that counsel should have requested a jury instruction on
the lesser included offense of unlawful sexual conduct with a minor. “[F]ailure to request
an instruction for lesser included offenses without more does not establish ineffective
assistance of counsel.” State v. White, 6th Dist. Lucas No. L-06-1363, 2008-Ohio-2990,
¶ 62, citing State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996). Something
“more” could include, for example, “evidence that the failure to make the request was a
reason other than trial strategy.” Id. But when the defendant is not entitled to the lesser
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included instruction, counsel is not ineffective for failing to make the request. See State
v. Shadoan, 4th Dist. Adams No. 03CA764, 2004-Ohio-1756, ¶ 67.
{¶ 84} In this case, Artis was not entitled to a jury instruction on unlawful sexual
conduct of a minor because it is not a lesser included offense of forcible rape. “An
offense that includes an element that another offense lacks cannot be a lesser included
offense of that other offense.” State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, 166
N.E.3d 1142, ¶ 8. Unlawful sexual conduct with a minor in violation of R.C. 2907.04(A)
includes the element that “the offender knows the [victim] is thirteen years of age or
older but less than sixteen years of age, or the offender is reckless in that regard.”
Forcible rape in violation of R.C. 2907.02(A)(2) does not include an age element. Thus,
unlawful sexual conduct with a minor is not a lesser included offense of rape charged
under R.C. 2907.02(A)(2), and Artis was not entitled to the jury instruction that he claims
his trial attorneys should have requested. And because Artis was not entitled to the
instruction, his counsel’s representation was not deficient because they failed to request
it. Artis’s argument to the contrary lacks merit.
{¶ 85} In addition, Artis argues that Roberts and McGeorge were ineffective for
failing to proffer mother’s Facebook posts and texts to Saldivar after the trial court ruled
them inadmissible. Failing to proffer excluded evidence is not per se ineffective
assistance. State v. Warren, 8th Dist. Cuyahoga No. 83823, 2004-Ohio-5599, ¶ 31.
When a proffer would not help the defendant’s case, counsel’s failure to proffer does not
42.
make their performance deficient. State v. Rutledge, 10th Dist. Franklin No. 17AP-590,
2019-Ohio-3460, ¶ 42. Here, Artis does not allege how a proffer of the exhibits—which
are in the record because they were used at the hearing on Artis’s motion for a new
trial—would have helped his case. The trial court correctly ruled that the Facebook posts
and text messages were inadmissible, so even assuming that the failure to proffer was not
objectively reasonable, any error by counsel in that regard was harmless.
{¶ 86} Finally, Artis argues that “counsels [sic] errors were cumulative based on
inexperience and but for said errors, his case would have resulted in resolution by plea
agreement.” Under the cumulative-error doctrine, “a conviction will be reversed when
the cumulative effect of errors in a trial deprives a defendant of a fair trial even though
each of the numerous instances of trial-court error does not individually constitute cause
for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶
223. We have not found that Roberts and McGeorge’s performance was deficient during
the trial, so there are no errors that collectively resulted in prejudice to Artis.
{¶ 87} Because none of Artis’s allegations of ineffectiveness by Roberts and
McGeorge fall below an objectively reasonable standard of representation, he cannot
show that his trial attorneys were ineffective. His first assignment of error is not well-
taken.
43.
B. The trial court properly denied Artis’s Crim.R. 29 motion.
{¶ 88} In his second assignment of error, Artis argues that the trial court erred by
denying his Crim.R. 29 motion because the “evidence introduced by the State of Ohio in
this matter is essentially the letter and statements of D.V. which were unsupported by any
physical evidence or witness corroboration.” The state responds that D.V.’s testimony
was sufficient to prove the elements of rape.
{¶ 89} A motion for acquittal under Crim.R. 29(A) challenges the sufficiency of
the evidence. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶
39. The denial of a motion for acquittal under Crim.R. 29(A) “is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶ 90} Whether there is sufficient evidence to support a conviction is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a
challenge to the sufficiency of evidence, “[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.”
(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668(1997). In making that determination, the appellate court will not weigh the evidence or
assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378
N.E.2d 1049 (1978).
44.
{¶ 91} Artis was convicted of rape under R.C. 2907.02(A)(2), which requires the
state to prove that the defendant engaged in sexual conduct with another by compelling
the other person to submit by force or threat of force.
{¶ 92} As applicable here, “sexual conduct” means “vaginal intercourse between a
male and female; * * * and, without privilege to do so, the insertion, however slight, of
any part of the body * * * into the vaginal * * * opening of another. Penetration,
however slight, is sufficient to complete vaginal * * * intercourse.” R.C. 2907.01(A).
{¶ 93} “Force” is defined as “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). “A
defendant purposely compels another to submit to sexual conduct by force or threat of
force if the defendant uses physical force against that person, or creates the belief that
physical force will be used if the victim does not submit.” State v. Schaim, 65 Ohio St.3d
51, 600 N.E.2d 661 (1992), paragraph one of the syllabus. “The law is clear: any
amount of physical force or threat of physical force, however slight, is sufficient to
support * * *” a rape conviction under R.C. 2907.02(A)(2). (Emphasis sic.) State v.
Heiney, 2018-Ohio-3408, 117 N.E.3d 1034, ¶ 122 (6th Dist.). Additionally, when the
victim is a child and the offender is a trusted adult, “‘force need not be overt and
physically brutal, but can be subtle and psychological. As long as it can be shown that
the * * * victim’s will was overcome by fear or duress, the forcible element * * * can be
established.’” (Ellipses sic.) State v. Griffith, 10th Dist. Franklin No. 05AP-1042, 2006-
45.
Ohio-6983, ¶ 17, quoting State v. Eskridge, 38 Ohio St.3d 56, 58-59, 526 N.E.2d 304(1988).
{¶ 94} Here, Artis was convicted of digital and penile rape. To support the digital
rape charge, the state presented testimony from D.V. that Artis put his fingers inside her
vagina. That is, D.V. testified that Artis would try to “touch” her “whenever * * * [she]
was alone” or he would “try to pull [her]” into another room away from others, and that
on a few occasions he would “touch [her] in [her] sleep.” She clarified that Artis would
“touch” her on these occasions with his fingers or his mouth, and that he tried to put his
fingers inside of her “a couple times” and that she felt his fingers inside her vagina. This
is sufficient to prove the penetration element of the digital rape charge.
{¶ 95} We also find sufficient evidence to support the element of physical force.
Although D.V. did not testify regarding the specific physical force that accompanied each
instance in which she felt Artis’s fingers inside her vagina (some of which may have been
initiated while she was asleep), D.V.’s medical records—which were read into evidence
by Brigode—detail the physical force that accompanied at least one instance of digital
penetration. According to the medical records, D.V. stated that Artis “would come into
my room at night and put his hands under my blanket and try to push my legs apart and
tell me to make room” and “[o]ne time he came into my room and was pulling my pants
down and he put his mouth down there. I was kicking him to get off me. He put his
fingers in me, too.” Artis’s removal of D.V.’s pants is sufficient evidence of force. State
46.
v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 67. Indeed, even if D.V.
had been asleep when this incident began, the manipulation of a sleeping victim’s body
or clothing to facilitate sexual conduct is sufficient evidence of force. State v. Burton, 4th
Dist. Gallia No. 05CA3, 2007-Ohio-1660, ¶ 38 (manipulation of a sleeping victim’s
clothing to facilitate sexual conduct is sufficient force to support a conviction under R.C.
2907.02(A)(2)); see also Heiney at ¶ 124 (finding manipulation of victims’ clothing was
sufficient force to support gross sexual imposition convictions).
{¶ 96} As to the penile rape charge, D.V. testified and reported to Brigode that
Artis grabbed her arm or arms and pulled her downstairs before holding her against a
counter, removing her pants, and forcing his penis into her vagina. This is sufficient to
meet the force element of penile rape.
{¶ 97} Regarding the penetration element of penile rape, D.V. specifically testified
that she felt Artis’s penis enter her body. Although Metherd testified that D.V.’s hymen
did not have the appearance of a hymen that had been penetrated by an adult penis, so
Artis’s penis could not have entered her vaginal opening, it was clear from his testimony
that he was referring to the medical—rather than legal—definition of “vaginal opening.”
That is, Metherd defined the hymen as the point at which the vagina began. However,
“[c]ourts have consistently held that vaginal penetration is proved when any object is
applied with sufficient force to cause the labia majora [the external female genitalia] to
spread.” State v. Patterson, 5th Dist. Tuscarawas No. 2020 AP 12 0025, 2021-Ohio-
47.
2387, ¶ 24. In other words—although perhaps medically imprecise—legally, the vagina
begins at the external genitalia, not some deeper internal structure. Thus, D.V.’s
testimony that she felt Artis’s penis inside of her body is sufficient evidence of
penetration to support the penile rape charge.
{¶ 98} Ultimately, Artis’s argument regarding his Crim.R. 29 motion comes down
to D.V.’s credibility, which we cannot consider when weighing the sufficiency of the
evidence. Considering the evidence in the light most favorable to the state, we find that a
“rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” (Internal citations omitted.) Smith, 80 Ohio St.3d at 113, 684
N.E.2d 668, so the trial court properly denied Artis’s Crim.R. 29 motion. Thus, his
second assignment of error is not well-taken.
C. Artis’s convictions are not against the weight of the evidence.
{¶ 99} Finally, in his third assignment of error, Artis argues that his convictions
are against the manifest weight of the evidence because (1) the jury did not give
appropriate weight to evidence that mother deleted text messages from her phone before
giving it to Morford; (2) Morford “was not actually trained in Cellbrite [sic] cellphone
data extraction until after he performed the extraction * * *” on mother’s phone; (3)
Brigode “did not collect physical or medical evidence and did not indicate any physical
injuries to D.V. * * *”; and (4) the jury focused on the perception—supported only by
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D.V.’s testimony—that Artis was a “bad person that had groomed D.V. for sexual
conduct from an early age.”
{¶ 100} The state responds that, when considering the evidence and the credibility
of the witnesses, the jury did not lose its way and create a manifest miscarriage of justice
by convicting Artis.
{¶ 101} When we review a claim that a verdict is against the manifest weight of
the evidence, we weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether the jury clearly lost its way in
resolving evidentiary conflicts so as to create such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541. We do not view the evidence in a light most favorable to the
prosecution. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s
resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No. L-10-
1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 387. Reversal on manifest weight
grounds is reserved for “the exceptional case in which the evidence weighs heavily
against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 102} Although we consider the credibility of witnesses under a manifest-weight
standard, we must, nonetheless, extend special deference to the jury’s credibility
determinations, given that it is the jury that has the benefit of seeing the witnesses testify,
49.
observing their facial expressions and body language, hearing their voice inflections, and
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. The jury, as the finder of fact and the sole
judge of the weight of the evidence and the credibility of the witnesses, may believe or
disbelieve all, part, or none of a witness’s testimony. State v. Caudill, 6th Dist. Wood
No. WD-07-009, 2008-Ohio-1557, ¶ 62, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964).
{¶ 103} After reviewing the evidence and the credibility of the witnesses and
weighing the testimony, we are not convinced that the evidence weighs heavily against a
conviction. First, there was no evidence that mother deleted text messages that were
relevant to the rape charges against Artis. The messages that she might have deleted
related to her attempts to sell her food stamps to Saldivar. On cross-examination, mother
admitted that she had offered to sell food stamps to Saldivar, which the jury was entitled
to weigh as it saw fit.
{¶ 104} Second, contrary to Artis’s argument, Morford was trained in Cellebrite
extraction before extracting mother’s phone, although he was not certified by the
company until after the extraction. There is nothing in the record to show that a person
using Cellebrite to extract a cellphone must be certified by Cellebrite before performing
the extraction. Nor is there any evidence that Morford lacked the necessary training and
skills to use Cellebrite, so this argument lacks merit.
50.
{¶ 105} Third, Brigode testified that she was precluded by law from collecting
physical evidence, such as DNA, during D.V.’s exam because the sexual assault occurred
more than 72 hours before the exam. Because D.V. was examined six days after the rape,
it is reasonable to infer that any physical evidence that existed at the time of the rape was
no longer on D.V.’s body. Additionally, the brevity of the rape and the passage of time
makes it reasonable to infer that any injuries D.V. might have sustained in her vaginal
area were healed by the time of the exam.
{¶ 106} Finally, Artis argues that the jury perceived him as a bad person who had
groomed D.V. from a young age based solely on D.V.’s testimony. There is no way of
knowing if the jury perceived Artis as a “bad person.” As far as grooming behaviors,
D.V., mother, and Jennings each testified to things that Artis did that might have
groomed D.V. for sexual conduct, such as tickling D.V.’s thighs and giving her siblings
his phone so that they would leave him and D.V. alone. Any perception the jury had of
Artis as engaging in this behavior was based on more than just D.V.’s testimony.
{¶ 107} In sum, after weighing the evidence and the credibility of the witnesses,
we cannot say that the jury lost its way or created a manifest miscarriage of justice by
convicting Artis of two counts of rape. We find, therefore, that Artis’s conviction is not
against the manifest weight of the evidence. Thus, his third assignment of error is not
well-taken.
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III. Conclusion
{¶ 108} Based on the foregoing, the October 9, 2019 judgment of the Lucas County
Court of Common Pleas is affirmed. Artis is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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