State v. Perkins ( 2014 )

[Cite as State v. Perkins , 2014-Ohio-752.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-13-01
v.
CORY A. PERKINS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2012 CR 27
Judgment Affirmed
Date of Decision: March 3, 2014
APPEARANCES:
Deborah Kovac Rump for Appellant
Mark C. Miller and Elizabeth H. Smith for Appellee
Case No. 5-13-01
SHAW, J.
{¶1} Defendant-appellant Cory A. Perkins (“Perkins”) appeals the
January 11, 2013, judgment of the Hancock County Common Pleas Court
sentencing Perkins to an aggregate prison term of 21 years following a jury trial
wherein Perkins was convicted of three counts of Rape in violation of R.C.
2907.02(A)(2), all felonies of the first degree.
{¶2} The facts relevant to this appeal are as follows. On February 7,
2012, Perkins was indicted for three counts of Rape in violation of R.C.
2907.02(A)(2). (Doc. 1).
{¶3} On February 9, 2012, Perkins was arraigned and pled not guilty to
the charges. (Doc. 6).
{¶4} On August 2, 2012, the State filed a motion in limine seeking to
exclude evidence of the victim’s prior sexual activity. (Doc. 48).
{¶5} On August 3, 2012, the State filed a notice of intention to use other
acts evidence. (Doc. 49). The motion indicated that the State would introduce
evidence that Perkins was out “on bond” on another criminal offense for the
purpose of establishing Perkins’ identity, as it was one of only a few pieces of
information that the victim could recall about Perkins. (Id.)
{¶6} On October 1, 2012, a hearing was held on the State’s motion in
limine and on the State’s notification of intention to use other acts evidence. At
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the hearing, the parties stipulated that no evidence of the victim’s sexual history
would be introduced at the trial. (Doc. 86). After hearing the parties’ arguments
regarding “other acts” testimony, the court determined that the “other acts”
testimony concerning Perkins’ bond status would be admissible for the limited
purpose of establishing Perkins’ identity and that any prior criminal offense should
not be mentioned. (Id.) The court stated that its determination was subject to
further ruling on any objections raised at trial. (Id.)
{¶7} On October 22-25, 2012, a jury trial was held. At the trial, the State
called seven witnesses, beginning with Angelica Sayarath (“Sayarath”). Sayarath
testified that on the night of August 12, 2011, she went to the Walnut Saloon in
Findlay, Ohio, with her friend Kyle Sayler. (Tr. at 263). There, she observed the
victim in this case (hereinafter referred to as “Kelsie”) having a drink with her
friend Desta. (Id. at 264). The four females ended up congregating at a table
along with two men whom none of the girls knew, later identified as Perkins and
Perkins’ brother Joel. (Id. at 268-69). Sayarath testified that Perkins bought a
round of shots for everyone at the table but Sayarath, as Sayarath was driving and
not drinking. (Id. at 272).
{¶8} Sayarath testified that the group of six stayed at that table for the
evening. (Id. at 270). Sayarath testified that as she initially conversed with
Kelsie, Sayarath did not think Kelsie was intoxicated. (Id. at 274). At some point
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during their conversation, Kelsie asked Sayarath to accompany her to the
bathroom, and Sayarath did so. (Id. at 274-275). According to Sayarath, about 15
minutes after that first trip to the bathroom, Kelsie again asked Sayarath to
accompany her to the bathroom, and Sayarath did so for a second time. (Id.)
During the second trip to the bathroom, Sayarath testified that Kelsie’s demeanor
changed and that Kelsie could hardly walk. (Id. at 276). Sayarath testified that
Kelsie almost fell over coming out of the bathroom stall. (Id.)
{¶9} Sayarath testified that back at the table where their group was
gathered, Kelsie kept leaning away from Perkins when Perkins talked to Kelsie,
causing Kelsie to bump into Sayarath multiple times as Sayarath was seated on
Kelsie’s other side. (Id. at 277). Sayarath testified that Perkins mentioned at one
point during the night that he was on “felony probation.” (Tr. at 274).
{¶10} Sayarath testified that around 1:00-1:30 a.m. she was ready to leave
the bar. (Id. at 282). When Sayarath left, she took Kyle and Desta with her to
drop them off. (Id.) Sayarath testified that although it concerned her leaving
Kelsie at the bar, and that the whole situation didn’t “feel right,” Kelsie had told
Sayarath that she had money for a cab and was going to stay, so Sayarath left
without her. (Tr. at 278-279).
{¶11} The State next called Kelsie, and Kelsie corroborated Sayarath’s
version of events at the bar. Kelsie testified that she did not recall when Desta,
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Sayarath, and Kyle left. (Tr. at 309). Kelsie testified that the last thing she
remembered from the bar was dancing with some girls when a song she liked
came on. (Id.) Kelsie testified that the next thing she knew she was being pulled
out of Perkins’ vehicle by her hair into a field. (Id.) The first thing she
remembered Perkins saying to her in the field was that he was going to “put it in
her butt.” (Id. at 310).
{¶12} Kelsie testified that Perkins then forced her to the ground, and
inserted his penis into her anal cavity. (Tr. at 311). Kelsie testified that it hurt and
she tried to fight back. (Id.) Kelsie testified that she hit Perkins in the face area
and that Perkins hit her back. (Id.) Kelsie also testified she was scared and asked
him to stop. (Id. at 312). She testified that she screamed for help. (Id.)
{¶13} Kelsie testified that Perkins then forced his penis into her vagina.
(Id. at 313). Kelsie testified that she didn’t fight back much or say much after he
had hit her. (Id.) Kelsie testified that at some point Perkins slammed her head
into the tire of his vehicle and then forced his penis into her mouth with such force
that she could not breathe. (Id.) Kelsie also testified that Perkins smacked her in
the face multiple times with his penis across her cheeks, and that it humiliated her.
(Id. at 315). According to Kelsie, Perkins said he could kill her and leave her
there because no one knew that she was there. (Id. at 314).
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{¶14} Kelsie testified that after the incident she got back in the vehicle and
was crying. (Tr. at 314). She testified that Perkins then drove her back to her
trailer park at Riverview Terrace. (Id. at 315). According to Kelsie, the drive
from the field to Riverview Terrace where she lived only took “[j]ust a couple
minutes.” (Id. at 316). Kelsie testified that when they arrived in the trailer park,
Perkins pushed her out of the vehicle. (Id.) Kelsie testified that she was so
disoriented she did not know where she was, so she had to call her husband’s
friend John to come get her. (Id.) Kelsie’s husband, David, was hanging out with
John at their trailer, and Kelsie could not call David directly because David’s
phone had been disconnected. (Id. at 317).
{¶15} John testified that when he received the call, he and David were still
awake. (Tr. at 413). John testified that he put David on the phone immediately.
(Tr. at 414). David testified that Kelsie was hysterical and that Kelsie told him she
was in the trailer park and did not know where she was. (Tr. at 386-87). David
testified that he directed her to walk to the nearest street sign. (Id.) It turned out
Kelsie was on their street, just further up the road. (Id. at 387). David and John
then drove down and picked up Kelsie. (Id.) David and John testified Kelsie was
hysterical and dirty and that they had to help her into the vehicle. (Id.)
{¶16} Once back at the residence, David testified that Kelsie continued to
be hysterical and that he could hardly understand what she was trying to tell him.
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(Tr. at 389). Kelsie testified that only the kitchen light was on at the residence as
the children were asleep. (Tr. at 318). David testified that they did not turn on
more lights in the house so as to not wake the children. (Id.) David testified that
Kelsie told him she had been raped, but he could hardly understand her, so he did
not call the police right then. (Tr. at 389). Kelsie repeatedly complained to David
that her butt hurt so bad that she thought something was wrong, so she asked her
husband to look at it. (Tr. at 318). David, not understanding her, did not do so.
Kelsie ended up going back into the bedroom and going to sleep. (Tr. at 318).
David and John slept in the living room on separate couches. (Id.) David and
Kelsie testified that David regularly slept on the couch due to Kelsie’s “snoring.”
(Id.)
{¶17} After sleeping for several hours, Kelsie woke David up to show him
her bruises in the light of day. (Tr. at 320). David testified that when he saw his
wife’s injuries he knew something had happened. (Tr. at 389-90). David also had
found a piece of straw in Kelsie’s hair, which he threw in the trash. (Tr. at 320);
(Tr. at 393). Kelsie informed David about the rape, and David suggested that they
call the police. (Tr. at 393). Kelsie, David, and John’s stories regarding what
happened once Kelsie called John’s phone in the trailer park through the next
morning were all consistent.
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{¶18} Deputy Lyle Harvitt responded to Kelsie and David’s residence and
spoke with Kelsie out of the presence of her husband. (Tr. at 544-545). Kelsie
told Deputy Harvitt her version of events. (Tr. at 545). Deputy Harvitt noted that
Kelsie had some dirt and grass stains on the pants she had been wearing the night
before, as well as some dirt, pieces of grass, and dried mud on the shirt she had
been wearing. (Tr. at 552). Deputy Harvitt testified that he collected the piece of
straw that David had taken out of Kelsie’s hair. (Tr. at 552-53). Deputy Harvitt
asked Kelsie who had assaulted her, and Kelsie relayed to him all that she could
remember. Kelsie recalled that her assailant’s first name was Cory, and that Cory
had told her he was out on bond on a criminal charge. (Tr. at 546). Kelsie also
recalled the first name of Cory’s probation officer and the name of his attorney.
(Id.) After collecting this information, Deputy Harvitt had Kelsie go to Toledo
Hospital to see a Sexual Assault Nurse Examiner (“SANE”).
{¶19} At the hospital, Kelsie was examined by Katie Bush, a SANE. Bush
testified that there were over two dozen visible injuries to Kelsie.1 (Tr. at 478).
The injuries ranged from head to toe, including two genital injuries, a knocked-out
filling in Kelsie’s mouth, a large bruise on Kelsie’s face, and bruises and
scratching on Kelsie’s back and legs. (Id.) Bush noted that Kelsie’s thigh bruising
could be indicative of someone forcing her legs open, and that the thigh bruising
1
Specifically, Bush identified 26 visible injuries to Kelsie. (Tr. at 478).
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was consistent with Kelsie’s story. (Tr. at 495). Bush also noted that some of the
bruises indicated the use of a significant amount of force. (Tr. at 491).
{¶20} Deputy Harvitt testified that he eventually learned the person Kelsie
described to him was Cory Perkins. (Tr. at 565). Through her own independent
investigation over the internet, Kelsie found her assailant, and identified him as
Perkins as well. (Id.) DNA evidence taken by Bush during Kelsie’s examination
was later returned, confirming the presence of Perkins’ semen in Kelsie’s vagina.
(Tr. at 584).
{¶21} At the conclusion of the State’s case, Perkins called three witnesses
on his behalf. Perkins first called his brother Joel, who had been at the bar with
Perkins on the evening/early morning of the incident. Joel testified at the trial that
when they left the bar that night, Perkins dropped him off. (Tr. at 626). Joel
testified that Kelsie invited herself to get a ride home. (Id.) Through cross-
examination it was revealed that Joel had an extensive criminal history and was a
convicted sex offender. (Tr. at 629).
{¶22} Perkins’ mother then testified at the trial. She testified that Perkins
came home in the early morning hours on the date of the alleged incident with
Kelsie and that the two subsequently left together. (Tr. at 647).
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{¶23} Breann2 Perkins also testified at the trial. Breann had been married
to Perkins but the two were separated. Breann testified that Perkins had a heart
attack at 24, and that the heart condition prevented him from engaging in physical
activities. (Tr. at 678-680).
{¶24} Once the preceding testimony was presented, the parties presented
closing arguments and the case was submitted to the jury. After deliberating, the
jury found Perkins guilty of all three counts of Rape. The trial court ordered a pre-
sentence investigation and set the matter for sentencing.
{¶25} On January 3, 2013, the court held a sentencing hearing. Perkins
was sentenced to 7 years in prison on each count of Rape, to be served
consecutively, for an aggregate prison term of 21 years. An entry reflecting
Perkins’ sentence was filed January 13, 2013. (Doc. 110).
{¶26} It is from this judgment that Perkins appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
PERKINS’ RIGHT TO REMAIN SILENT AND BE
REPRESENTED BY COUNSEL AS GUARANTEED BY THE
CONSTITUTION WAS VIOLATED WHEN THE STATE’S
LAW ENFORCEMENT WITNESS REPEATEDLY
TESTIFIED THAT PERKINS INVOKED THOSE RIGHTS
AFTER BEING MIRANDIZED DURING A CUSTODIAL
INTERVIEW. HIS RIGHT TO DUE PROCESS WAS
LIKEWISE VIOLATED BY THIS DISCLOSURE.
2
Appellant’s Brief cites his estranged wife’s name as “Breanna.” The State names her “Breanne” in its
brief. The transcript, which does not include the spelling of her name, cites it as “Breann” and that is the
spelling we will use herein. (Tr. at 675).
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ASSIGNMENT OF ERROR 2
THE TRIAL COURT ABUSED ITS DISCRETION BY
GRANTING THE STATE’S MOTION TO USE EVID.R. 404(b)
EVIDENCE. SPECIFICALLY, THAT THE JURY WAS
PERMITTED TO REPEATEDLY BE ADVISED THAT
PERKINS WAS ON BOND FOR ANOTHER CRIMINAL
CASE WHEN THE EVENTS CHARGED IN THIS CASE
OCCURRED. THE BOND WAS FOR A BURGLARY CASE,
AND WAS SUPPOSED TO BE USED FOR IDENTITY EVEN
THOUGH IDENTITY WAS NOT IN ISSUE. FURTHER, THE
JURY WAS INCORRECTLY TOLD PERKINS HAD PRIOR
CONVICTIONS AND WAS ON PROBATION.
ASSIGNMENT OF ERROR 3
THE STATE FAILED TO PROVE VENUE, WHICH IS A
CRITICAL EVIDENTIARY REQUIREMENT. PERKINS’
CONVICTIONS WERE LEGALLY BASED UPON
INSUFFICIENT EVIDENCE AND HIS RULE 29 MOTION
SHOULD HAVE BEEN GRANTED.
ASSIGNMENT OF ERROR 4
THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPROPERLY APPLYING THE RAPE SHIELD LAW TO
PREVENT PERKINS FROM OFFERING MEDICAL
EVIDENCE THAT HIS SERIOUS HEART CONDITION
GREATLY LIMITS HIS ABILITY TO ENGAGE IN THE
PHYSICAL ACTIVITIES ALLEGED.
ASSIGNMENT OF ERROR 5
PERKINS’ TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE
UNITED STATES CONSTITUTION, SIXTH AMENDMENT.
ASSIGNMENT OF ERROR 6
THE PROSECUTOR ENGAGED IN PERSISTENT,
PERVASIVE AND INTENTIONAL MISCONDUCT, OFTEN
TAKING ADVANTAGE OF PERKINS’ INEFFECTIVE
COUNSEL BY TESTIFYING TO THE JURY AND USING
EXTRINSIC HEARSAY CHARACTER EVIDENCE TO
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IMPEACH PERKINS EVEN THOUGH HE DID NOT
TESTIFY.
{¶27} For the sake of clarity, we elect to address some of the assignments
of error out of the order in which they were raised.
Third Assignment of Error
{¶28} In Perkins’ third assignment of error, Perkins argues that there was
insufficient evidence to convict him and that his Crim.R. 29 motion for acquittal
should have been granted. Specifically, Perkins contends that the State failed to
prove “venue.”3
{¶29} Crim.R. 29(A) provides that a court must order the entry of a
judgment of acquittal of a charged offense “if the evidence is insufficient to
sustain a conviction of such offense[.]” However, “a court shall not order an entry
of judgment of acquittal if the evidence is such that reasonable minds can reach
different conclusions as to whether each material element of a crime has been
proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261(1978), syllabus. Thus, a motion for acquittal tests the sufficiency of the evidence.
State v. Tatum, 3d Dist. Seneca No. 13–10–18, 2011–Ohio–3005, ¶ 43, citing State
v. Miley, 114 Ohio App.3d 738, 742 (4th Dist.1996).
{¶30} When an appellate court reviews a record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in a light most favorable to
3
Perkins does not argue that there was insufficient evidence to convict him regarding any of the other
elements in his crime.
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the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d
384, 2005–Ohio–2282, ¶ 47, citing State v. Jenks, 61 Ohio St.3d 259 (1991),
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89 (1997). Sufficiency is a test of adequacy, and the
question of whether evidence is sufficient to sustain a verdict is one of law. State
v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶31} In a criminal case, venue is not a material element, but the State
must still prove venue beyond a reasonable doubt. State v. Headley, 6 Ohio St.3d
475, 477 (1983). “Venue is satisfied where there is a sufficient nexus between the
defendant and the county of the trial.” State v. Chintalapalli, 88 Ohio St.3d 43, 45
(2000). Venue need not be proven in express terms. Id. Rather, it can be
established by all of the facts and circumstances viewed in the light most favorable
to the state. Id. In addition, it has been stated that a trial court has broad
discretion to determine the facts which would establish venue. See, e.g., State v.
Mills, 6th Dist. Williams No. WM–09–014, 2010-Ohio-4705, ¶ 22.
{¶32} R.C. 2901.12 governs venue, and reads, in pertinent part,
(A) The trial of a criminal case in this state shall be held in a
court having jurisdiction of the subject matter, and in the
territory of which the offense or any element of the offense was
committed.
***
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(G) When it appears beyond a reasonable doubt that an offense
or any element of an offense was committed in any of two or
more jurisdictions, but it cannot reasonably be determined in
which jurisdiction the offense or element was committed, the
offender may be tried in any of those jurisdictions.
{¶33} In this case, Perkins contends that the State failed to prove venue as
Kelsie was unable to identify where the rapes took place, and Deputy Harvitt
never learned the location where the rapes took place. Perkins contends that there
was a significant time gap between when Kelsie and Perkins left the bar and when
Kelsie made the phone call to her husband’s friend in the trailer park. Perkins
argues that during this time gap, they could have left Hancock County or even the
state of Ohio.
{¶34} In State v. Stemm, 3d Dist. Union Co. No. 14-08-44, 2009-Ohio-
1655, we addressed a similar situation where a victim did not remember leaving a
bar with a defendant and could not identify the location of the crime. Stemm at ¶
25. Citing an analogous case from the Twelfth District favorably,4 we found that
although the episode began and ended in Union County, it was
uncertain whether the location where the offenses took place was
in Union County or one of the several adjacent counties twenty
or twenty-five minutes from Marysville. Despite this
uncertainty, we find that proof existed beyond a reasonable
doubt that the offenses occurred in Union County or one of the
adjacent counties, establishing jurisdiction in Union County
pursuant to R.C. 2901.12(G).
4
State v. Miller, 63 Ohio App.3d 479 (12th Dist.1989).
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Id.{¶35} The facts in this case are similar to Stemm, in that Kelsie met Perkins
in a bar called the Walnut Saloon in Hancock County. Kelsie was returned after
the incident to her residence in Hancock County. While it is uncertain where the
incidences of rape actually took place, pursuant to our prior case law, R.C.
2901.12(G) would make venue proper in Hancock County.
{¶36} However, even if R.C. 2901.12(G) was not applicable to this case,
we would also find based on the facts that there was sufficient evidence for a juror
to determine beyond a reasonable doubt that the incident did, in fact, take place in
Hancock County based on Kelsie’s testimony and the testimony of Deputy Harvitt.
Kelsie testified that the drive from the field where she was raped to her trailer park
lasted “[j]ust a couple minutes.” (Tr. at 316). Deputy Harvitt testified that
although he did not identify the field where Kelsie was raped, there were fields
both near Kelsie’s trailer park, and within a quarter mile of Perkins’ residence,
which was in Hancock County. Based on this testimony, a juror could infer that
the rape took place within a very short distance from Kelsie’s trailer park, being
that it was such a short drive, making venue proper in Hancock County.
{¶37} Thus for either or both of these reasons, Perkins’ third assignment of
error is overruled.
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Fourth Assignment of Error
{¶38} In Perkins’ fourth assignment of error, Perkins argues that the trial
court abused its discretion by not permitting Perkins to offer evidence that his
heart condition restricted his sexual activities. Specifically, Perkins contends that
the trial court erred by excluding testimony of Perkins’ estranged wife that Perkins
was limited in the sexual positions he could perform.
{¶39} Prior to Breann Perkins testifying on Perkins’ behalf, the court
convened outside of the jury’s presence. Perkins’ counsel then stated the
following:
MR. CALLEJAS: Your Honor, part of the testimony that Mrs.
Perkins will be testifying to is the sexual activity between her
and the Defendant, Cory Perkins, my client, Your Honor. Some
of that testimony would include the type of actual sexual activity
that was – that was normal during the course of their marriage,
including, Your Honor, the positions of – the sexual positions
that they entertained while having sex as a result of Cory’s
medical condition, Your Honor. Which effects – prevents him
from doing certain types of serious physical activities, including
the normal act of sex, Your Honor.
It’s my understanding from our preliminary suggestions [sic]
that the Court felt that the rape shield statute would be
appropriate in this matter. I would advise the Court that I felt –
for the purposes of the record, that I thought that this testimony
was important. That it was more important than the State’s
interest in preventing testimony regarding sexual activity of the
Defendant, and that his right – his constitutional rights to bring
evidence before the Court would be prohibited by the Court
ruling that the State – the Rape Shield Statute apply in this
matter.
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(Tr. at 669-670).
{¶40} In response to counsel’s argument, the trial court analyzed the Rape
Shield Law, turning to R.C. 2907.02(D) for instruction as to what testimony was
permissible. It reads, in part,
(D) * * *
Evidence of specific instances of the defendant's sexual activity,
opinion evidence of the defendant's sexual activity, and
reputation evidence of the defendant's sexual activity shall not
be admitted under this section unless it involves evidence of the
origin of semen, pregnancy, or disease, the defendant's past
sexual activity with the victim, or is admissible against the
defendant under section 2945.59 of the Revised Code, and only
to the extent that the court finds that the evidence is material to
a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.
(Emphasis added.) R.C. 2907.02(D).
{¶41} After reviewing this section of the Revised Code, the trial court
reasoned that the stated purpose of Breann’s testimony did not fall under any of
the exceptions in R.C. 2907.02(D), and thus the court found that the testimony was
not admissible. (Tr. at 672).
{¶42} Following this discussion and the trial court’s ruling, Breann Perkins
took the stand and testified that Perkins had a major heart attack at 24, that Perkins
took medication for his heart condition, and that his heart condition prevented him
from engaging in certain physical activities. (Tr. at 679-680).
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{¶43} On appeal, Perkins contends that the trial court improperly prevented
Breann Perkins from testifying that Perkins’ heart condition “limited his ability to
engage in sexual positions other than traditional vaginal sex, and overall limited
his ability to perform sexually.” (Appt’s Br. at 25).
{¶44} At the outset we would note that the proffered testimony would
appear to be inconsistent with Perkins’ defense that the sexual conduct alleged by
Kelsie was consensual. For this reason alone, we believe the trial court’s decision
to exclude this testimony would not constitute an abuse of discretion.
{¶45} In addition, we note that the jury did get to hear testimony that
Perkins had a heart condition as well as testimony that Perkins was precluded from
engaging in certain “physical acts.” From this testimony, the jury could have
inferred the excluded testimony of Breann and thus any error in failing to construe
the testimony as evidence of “disease” within the exceptions to R.C. 2907.02(D)—
particularly in the absence of any medical testimony—is rendered harmless in our
view.
{¶46} Accordingly, for the foregoing reasons we do not find that the trial
court erred in excluding Breann’s testimony under R.C. 2907.02(D). Therefore,
Perkins’ fourth assignment of error is overruled.
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First Assignment of Error
{¶47} In Perkins’ first assignment of error, Perkins contends that his right
to remain silent was violated when Deputy Harvitt testified that Perkins invoked
his Miranda rights and chose to remain silent during Harvitt’s interview of
Perkins.
{¶48} At the outset, we would note that Perkins’ counsel did not object to
this issue at trial, and we therefore review it under a plain error standard. In order
to have plain error under Crim.R. 52(B) there must be an error, the error must be
an “obvious” defect in the trial proceedings, and the error must have affected
“substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, (2002). Plain error is
to be used “‘with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’” Id. quoting State v. Long, 53 Ohio
St.2d 91 (1978), paragraph three of the syllabus.
{¶49} Evidence submitted by the State regarding a defendant's exercise of
his right to remain silent during an interrogation violates the Due Process Clause
of both the state and federal constitutions. Doyle v. Ohio, 426 U.S. 610, 618, 96
S.Ct. 2240 (1976); State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, ¶ 18. “A
defendant's decision to exercise his right to remain silent during police
interrogation is generally inadmissible at trial either for purposes of impeachment
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or as substantive evidence of guilt.” State v. Perez, 3d Dist. Defiance No. 4-03-49,
2004-Ohio-4007, ¶ 10, citing Leach.
{¶50} Use of a defendant’s silence in the State’s case-in-chief puts a
defendant in the position of having to choose between allowing a jury to infer guilt
from his silence or being forced to take the stand to explain his prior silence,
thereby surrendering his right not to testify. Perez, 2004-Ohio-4007, at ¶ 20.
Nevertheless, the introduction of evidence regarding a defendant's decision to
remain silent does not constitute reversible error if, based on the whole record, the
evidence was harmless beyond any reasonable doubt. State v. Zimmerman, 18
Ohio St.3d 43, 45, (1985). The Ohio Supreme Court has held that “[a] single
comment by a police officer as to a suspect's silence without any suggestion that
the jury infer guilt from the silence constitutes harmless error.” State v. Treesh, 90
Ohio St.3d 460, 480, 2001-Ohio-4; State v. Roby, 3d Dist. Putnam No. 12-09-09,
2010-Ohio-1498, ¶ 14.
{¶51} On appeal, Perkins argues that his rights were violated during the
following portion of the State’s direct examination of Deputy Harvitt:
Q[Prosecutor]: So as part of your meeting you advised him of
his Constitutional Rights?
A[Deputy Harvitt]: Yes
Q: Where did you meet with Cory?
A: Interview room at the Sheriff’s Office.
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Q: I believe that was January 3rd?
A: Yes.
Q: What did he tell you had occurred on the night of this
incident?
A: After I read him his Rights and he agreed to speak with me,
he told me during that meeting that he had met up with Kelsie.
And then he mentioned something about a friend of Kelsie’s.
Then I asked him where it was at, and he said he was at home.
At his home. I asked where that at [sic]. He gave me that
address on Township Road 67. I further questioned him and he
corrected me and said, no he was only with Kelsie at that home.
Q: Did he say whether anyone else was there, or was just [sic] he
and Kelsie?
A: Way I understood it was just he and Kelsie according to the
last statement that he made to me that referenced that.
Q: Did you ask him what occurred between he and Kelsie?
A: At that point I had started back and asked if he was at the
Walnut Saloon that night. And he said he was. That’s where I
met Kelsie. At that point he made a decision he wanted to talk
to a lawyer.
Q: Did you ask him specifically to explain what happened that
night?
A: I did. I did.
Q: What was his response to that specific question?
A: I can’t do that.
Q: He stated I can’t do that?
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A: Yes.
Q: Then when you asked him with regard to the Walnut Saloon
did he provide you with information about that?
A: That’s when he did say he had met Kelsie there. And then he
decided he wanted to talk to an attorney.
Q: Did he then leave the Sheriff’s Office?
A: Yes. I walked him out of the interview room and into the
lobby.
(Tr. at 577-578).
{¶52} This is the only instance of Perkins’ invoking his Miranda rights
referenced by Perkins on appeal, and the only testimony elicited by the State on
this matter. As such, this was an isolated mention by the State of Perkins invoking
his Miranda rights, and only made in the context of explaining why police
questioning was stopped. As in State v. Welch, 3d Dist. Wyandot No. 16-06-02,
2006-Ohio-6684, ¶ 13, an isolated incident will ordinarily not rise to the level of
reversible error. See also State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4;
State v. Roby, 3d Dist. Putnam No. 12-09-09, 2010-Ohio-1498, ¶ 14. We believe
this to be especially true, where, as here, Perkins had initially waived his right to
remain silent and voluntarily gave a partial statement before then electing not to
continue.
{¶53} Additionally, we note that the trial court gave a limiting instruction
on Perkins’ silence, stating, “[i]t is not necessary that the Defendant take the
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witness stand in his own defense. He has a constitutional right not to testify. The
fact that he did not testified [sic] must not be considered for any purpose.” (Tr. at
734). The jury is presumed to follow that instruction, diminishing any claim of
prejudice to Perkins. State v. Blevins, 36 Ohio App.3d 147, 150, (10th Dist.1987),
citing Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct. 1091, 1095 (1978).
Similarly, we note that Perkins’ defense counsel also reinforced the same point in
his cross examination of Deputy Harvitt.
Q[Perkins’ Counsel]: Now you said that Mr. Perkins at one
point called your office, is that correct?
A[Deputy Harvitt]: Yes.
Q: And that at some point you met with him?
A: Yes.
Q: And that he explained to you why you weren’t able to get
ahold of him, is that correct?
A: Yes.
Q: Then when he – you met with him at some point he exercised
his right to maintain his silence, is that correct?
A: Yes, requested to talk to an attorney, yes.
Q: You certainly didn’t have a problem with that, did you?
A: No.
***
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Case No. 5-13-01
Q: And it’s certainly not a crime to exercise your Constitutional
Rights, correct?
A: That’s correct.
Q: As a matter [of] fact, that’s why you gave him a sheet so that
he had that available to him, is that correct?
A: That’s correct, yes.
(Tr. at 602-603).
{¶54} Finally, “[w]here constitutional error in the admission of evidence is
extant, such error is harmless beyond a reasonable doubt if the remaining
evidence, standing alone, constitutes overwhelming proof of defendant’s guilt.”
State v. Williams, 6 Ohio St.3d 281 (1983); State v. Risner, 3d Dist. Logan No. 8-
12-02, 2012-Ohio-5954, ¶ 56. Here, Kelsie had 26 separate injuries documented
which corroborated her version of events from bruising on her thighs, to her face,
to her genitals. In addition, her clothes were dirty and muddy and straw was found
in her hair, contradicting Perkins’ contention that he took her to his home to
engage in consensual sex. In light of this overwhelming evidence, Perkins is
unable to establish that even if there was error here, it was anything other than
harmless error. Accordingly, Perkins’ first assignment of error is overruled.
Second Assignment of Error
{¶55} In Perkins’ second assignment of error, Perkins argues that “other
acts” testimony regarding him being “out on bond” was not related to the criminal
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charges against him in this trial and was therefore highly prejudicial. Evid.R.
404(B). Specifically, Perkins contends that “identity” was not a material issue at
the trial and therefore “other acts” testimony should have been excluded.
{¶56} Prior to the trial, the State filed a notice of intention to use “other
acts” evidence. The court held a hearing on this matter along with the State’s
motion in limine on October 1, 2012. At that hearing, the prosecutor stated that he
intended to introduce testimony that Perkins had told Kelsie and Sayarath at the
bar that Perkins was “out on bond” for another criminal offense. The State also
intended to elicit testimony that Perkins named his “probation officer”5 at the bar,
and that Perkins also named his attorney. The State contended that this evidence
was necessary as it was part of how Perkins was ultimately identified by Kelsie
and by Deputy Harvitt.
{¶57} Perkins’ trial counsel objected to the use of this evidence at the
hearing, and contended that it would be highly prejudicial. The trial court held
that it would be admissible for the limited purpose of establishing identity, but the
crime for which Perkins was “out on bond” should not be mentioned. In addition,
the trial court stated that its determination was subject to further ruling at trial
{¶58} At the trial, Perkins’ bond status came up multiple times. It first
came up in opening statements when the prosecutor stated,
5
Apparently, as was discussed at oral argument, Hancock County’s probation department also handles their
“bond” issues.
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Case No. 5-13-01
Two men started talking to the ladies and eventually
conversation turned around the fact that Kelsie was studying
some criminal justice at Owens. So the Defendant told her how
long he was on probation, and she thought that was strange that
he would be in a bar if he was on probation. But it was part of
what she remembered about that night.
(Tr. at 249). Later in opening statements, the prosecutor added,
Kelsie was able to remember that she was with a guy named
Cory. That he was on probation. She was also able to tell
Detective Harvitt that he was on probation with the Probation
Officer named Chad. That his attorney in this case was Ken
Sass. Those are names that Detective Harvitt recognized.
(Tr. at 252).
{¶59} Perkins’ bond status first came up during trial testimony in the
context of Sayarath’s testimony. When Sayarath was on the stand, the following
testimony was elicited.
Q [Prosecutor]: What was some of the discussion that took
place at the table, if you recall?
A [Sayarath]: There wasn’t too much that I specifically
remember, other than I remember it being brought up that Cory
was on felony probation for something. And I do remember
looking at him and asking him, well why are you here?
Q: Who brought that up?
A: I don’t remember. It was just in topic of conversation I
happen[ed] to overhear.
Q: In response you did specifically ask Cory about it, is that
correct?
A: Yes.
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Case No. 5-13-01
Q: Do you remember Cory making any other statements on that
night?
A: Not specifically, no.
(Tr. at 273-274).
{¶60} Perkins’ status next came up during Kelsie’s testimony. Kelsie
testified to the following.
Q [Prosecutor]: What did you and the people sitting at the table
talk about that evening?
A [Kelsie]: We talked about a lot of different things. I talked
about the fact – at the time I was in school getting my associates
degree in criminal justice.
Q: Did the males talk to you about anything?
A: Yes.
Q: What did they talk to you about?
A: The one male, Joel, talked about his job, what he did for a
living. Cory was talking about some trouble that he was in.
Q: Okay. Did he state anything specific about the trouble?
A: Yeah. What the charge was. Who his bond officer was and
who his lawyer was.
Q: Who did he say was his bond officer?
A: Chad.
Q: Who did he say his attorney was?
A: Ken Sass.
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(Tr. at 307-308).
{¶61} In a later portion of testimony, Kelsie again referred to Perkins’
status.
Q [Prosecutor]: Now when you were talking to Detective
Harvitt about what had happened to you, did you tell him who
had done these things to you?
A: I told him I didn’t know. I just knew his first name.
***
Q: Did you tell him anything else about that person?
A: I described him, what he looked like. Also what he had told
me from the bar.
Q: What was that?
A: The details of like how he was in trouble. The lawyer[’]s
name and that.
Q: Okay. Did you do anymore investigation on your own about
who this person was?
A: Yes.
***
Q: What did you do?
A: I used Google. I put in the first name and Findlay, Ohio.
And the charge that he told me he was in trouble for. Just
clicked [G]oogle.
(Tr. at 324-325).
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Case No. 5-13-01
{¶62} Perkins’ status was next mentioned in the testimony of Deputy
Harvitt.
Q [Prosecutor]: How did you go about [attempting to contact
Perkins]?
A [Deputy Harvitt]: I tried to * * * contact * * * him through
his probation. I couldn’t get him to answer his phone.
Q: You couldn’t get who to answer the phone?
A: Cory to answer his phone. I don’t remember if it was either
shut off or it went right to his voicemail. So I tried to go through
his probation officer to try to relay some messages to get to him,
or if he showed up to call me and I would go down and meet
with him.
Q: Did you have any success in making that contact through the
probation officer?
A: Eventually I did, yes.
***
Q: Prior to that meeting and to having to go through the
probation officer, how many attempts did you make to contact
Cory?
A: I’m going to say probably a half a dozen.
(Tr. at 574-576).
{¶63} Perkins’ status was then brought up again during Joel’s testimony in
Perkins’ defense. When Joel was being cross-examined by the State, the
following testimony was elicited.
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Case No. 5-13-01
Q [Prosecutor on cross]: Okay. Your brother you knew as
being supervised at the time by the Adult Probation
Department? He was on some type of bond status, is that
correct?
A: I don’t know, was he?
Q: I’m asking you the question.
A: I don’t know.
***
Q: At the time your brother was being supervised by the Adult
Probation Department on bond status – you’re familiar with
bond status first of all?
A: Yes, I am.
Q: At that time you knew your brother was on bond status?
[DEFENSE COUNSEL]: Your Honor, he’s already asked and
answered that question.
[COURT]: Overruled.
Q: You knew your brother was on bond?
A: No, I did not.
Q: You had no idea your brother was on bond at that time?
A: No, sir.
Q: You knew your brother was being represented by Ken Sass,
an attorney, correct?
A: No, I did not.
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Case No. 5-13-01
Q: Okay. That was not something you ever discussed with your
brother?
A: No.
Q: Are you familiar with Ken Sass, an attorney here in town?
A: Yes, I am.
Q: But you weren’t aware that your brother was being
represented by him at that time?
A: No, I did not.
Q: Did you know your brother had been charged?
A: With the case before this, yes.
Q: Okay. So you knew he had at least been charged?
A: Right.
(Tr. 632-634).
{¶64} Perkins “bond” status also came up in closing arguments. In closing
arguments, the prosecutor referred to Kelsie’s identification of Perkins stating,
“The Defendant * * * started talking about how he was on probation. On
probation with Chad and Ken Sass was his attorney. That was information that
she ultimately used to identify her attacker.” (Tr. at 705). The prosecutor also
referred to what Kelsie told Deputy Harvitt, stating,
She also gave the detective the information about the two men
and one of them being on probation, having an attorney. Gave a
physical description of the two men. And Detective Harvitt
indicated that he had a chance and recognized that there is a
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Case No. 5-13-01
probation officer named Chad, a local attorney by the name of
Mr. Ken Sass. He was later able to confirm the description that
Kelsie had given to him as matching the Defendant and his
brother Joel.
(Tr. at 709).
{¶65} After the closing arguments, the court made the following limiting
instruction with regard to the “bond” status and “other acts” testimony.
Now evidence was received about the commission of crimes
other than the offense with which the Defendant is charged in
this trial. That evidence was received only for a limited purpose.
It was not received and you may not consider it to prove the
character of the Defendant in order to show that he acted in
conformity with that character. If you find that the evidence of
other crimes is true and that the Defendant committed them, you
may consider that evidence only for the purpose of deciding
whether it proves the identity of the person who committed the
offense in this trial. That evidence cannot be considered for any
other purpose.
(Tr. at 732).6
{¶66} On appeal, Perkins contends that the trial court erred by allowing the
“other acts” testimony that he was out on bond. Perkins argues that the testimony
was inadmissible and highly prejudicial, leaving the jury with the impression that
Perkins was on probation for another crime.
{¶67} Perkins argues that identity was not an issue at trial, as Perkins
stipulated that he had sex with the victim. Perkins also maintains that even if the
6
Prior to closing arguments, the court had instructed the jury that closing arguments were not evidence.
(Tr. at 699). The court made a similar instruction following the closing arguments. (Tr. at 731).
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Case No. 5-13-01
evidence was admissible under Evid.R. 404(b)7 its probative value was
substantially outweighed by the danger of unfair prejudice and thus it should have
been excluded under Evid.R. 403.8 Perkins does concede, however, that his trial
attorney did not object to the “other acts” testimony at trial, leaving us with a plain
error review.
{¶68} The State contends that the “other acts” testimony was necessary as
it was one of the few pieces of information that Kelsie had known about Perkins
and it was used to help both her and Deputy Harvitt separately identify Perkins.
The State argues that Perkins’ stipulation to his identity is irrelevant based on the
Ohio Supreme Court’s decision State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-
5059, and our own recent decision in State v. Hansen, 3d Dist. Seneca No. 13-12-
42, 2013-Ohio-1735. The Ohio Supreme Court held in Brown, that
Evid.R. 404(B) clearly allows “other acts” evidence as proof of
identity. State v. Allen (1995), 73 Ohio St.3d 626, 632, 653 N.E.2d
675. * * * Appellant asserts that identity was not at issue, since
he had already admitted to killing one of the store clerks. Thus,
appellant maintains that the “other acts” testimony was
unnecessary to prove identity. This argument lacks merit. As
7
Evid.R. 404(B) reads,
(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. In criminal cases, the proponent of evidence to be offered
under this rule shall provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
8
Evid.R. 403(A) reads, “Although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
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Case No. 5-13-01
stated in State v. McNeill (1998), 83 Ohio St.3d 438, 442, 700
N.E.2d 596, need is irrelevant in determining the validity of an
Evid.R. 404(B) objection. Moreover, the trial court minimized
the likelihood of undue prejudice by giving limiting instructions
to the jury to alert them to the narrow purpose of admitting
such evidence. We consequently find that the trial court did not
abuse its discretion in admitting this “other acts” testimony.
Brown at ¶ 24.
{¶69} In Hansen, supra, we similarly held, “[t]he fact that Hansen wanted
to stipulate to identity does not mean that the State had to accept the stipulation,
nor does it mean that the trial court was required to exclude this otherwise
probative evidence.” Hansen, at ¶ 28 citing State v. Collins, 4th Dist. No. 1021,
(Apr. 21, 1980).
{¶70} In this case, there were potential legitimate reasons for the State to
introduce the “other acts” testimony. As argued by the State, the fact that Perkins
said at the bar that he was “on bond” or “on felony probation” was used to
determine his identity by Kelsie and by Deputy Harvitt. The information also
could have been valid to show how Deputy Harvitt located Perkins. In addition, it
could have been probative as corroborative of the facts of Kelsie’s story.
{¶71} Despite the potential reasons for the evidence being admissible, we
find the number of times that the “probation” evidence was referred to by the
State, both in the testimony and in opening and closing arguments, was clearly
excessive and as such constituted error. Nevertheless, similar to Brown, the jury
was given a limiting instruction regarding the other acts testimony, and the jury is
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Case No. 5-13-01
presumed to have followed that instruction. State v. Blevins, 36 Ohio App.3d 147,
150, (10th Dist.1987), citing Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct.
1091, 1095 (1978). Thus, given that there is some legitimate purpose for
introducing the evidence, and given that there was a limiting instruction that the
jury was presumed to follow, we cannot find that its inclusion, or the erroneously
excessive mention of this evidence by the State, rose to the level of plain error,
particularly in the face of the overwhelming evidence of guilt. Accordingly,
Perkins’ second assignment of error is overruled.
Fifth Assignment of Error
{¶72} In Perkins’ fifth assignment of error, Perkins argues that his trial
counsel was ineffective. Specifically, Perkins contends that trial counsel called
witnesses that were detrimental to Perkins’ case, that trial counsel did not
investigate the background of the witnesses thoroughly enough, that trial counsel
did not object to prejudicial testimony and evidence, and that trial counsel allowed
the testimony related to Perkins’ bond status repeatedly without objection.
{¶73} “Reversal of convictions on ineffective assistance requires the
defendant to show ‘first that counsel’s performance was deficient and, second that
the deficient performance prejudiced the defense so as to deprive the defendant of
a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751 at ¶105,
quoting Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052 (1984).
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Case No. 5-13-01
When considering a claim of ineffective assistance of counsel, the court “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
{¶74} A tactical decision by trial counsel, who as a licensed attorney is
presumed to be competent, is not by itself enough to show ineffective assistance of
counsel simply because the strategy did not result in an acquittal. State v. Clayton,
62 Ohio St.2d 45, 48-49 (1980); State v. Timm, 3d Dist. Seneca No. 13-11-23,
2012-Ohio-410, ¶ 31. “Furthermore, trial counsel’s failure to object is generally
viewed as trial strategy and does not establish ineffective assistance.” State v.
Turks, 3d. Dist. Allen No. 1-08-44, 2009-Ohio-1837, ¶ 43, citing State v.
McKinney, 11th Dist. Trumbull No. 2007-T-0004, 2008-Ohio-3256, ¶ 191; State v.
Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103.
{¶75} On appeal, Perkins argues that his counsel was ineffective for
multiple reasons. First, Perkins contends that his trial counsel was ineffective for
calling Perkins’ brother Joel as a witness. Perkins contends that Joel’s testimony
was more harmful than helpful, particularly in light of the fact that Joel had a prior
sex offense, and prior felony convictions.
{¶76} Despite Perkins’ arguments, Joel did testify that Kelsie and Desta
approached Joel and Perkins at the bar, contradicting earlier testimony of Kelsie
and Sayarath, and that Kelsie left willingly with Perkins at the end of the night.
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Case No. 5-13-01
Joel also testified that Kelsie was the one that asked for a ride home in the first
place, potentially adding some credibility to Perkins’ defense of consensual sex.
Thus while Joel’s criminal history might have painted him in a less than favorable
light to the jury, his testimony did contradict in important respects some of the
State’s witnesses’ testimony.
{¶77} Perkins next argues that his trial counsel was ineffective for failing
to object to “extrinsic character evidence” when the State was cross-examining
Joel and Breann Perkins. Perkins first points to a section where the State asked
whether Joel had previously helped his brother in a bar fight. Joel repeatedly
denies helping his brother. As Joel never admitted to being involved in that bar
fight, it is unclear how counsel’s failure to object would rise to the level of
ineffective assistance as no damaging testimony was admitted by Joel.
{¶78} Perkins also points to his trial counsel’s failure to object to the
following exchange as ineffective:
Q [Prosecutor on Cross]: You’ve never had to talk to a cop?
A [Joel Perkins]: No, I did not. Not on that, no, I have not.
Q: You’ve had to talk to cops on lots of occasions, correct?
A: Yes, sir.
Q: Okay. You don’t really like talking to cops, do you?
A: It doesn’t matter. They’re people just like me.
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Case No. 5-13-01
(Tr. at 636-637).
{¶79} Perkins argues that the State’s questions were inflammatory and that
his trial counsel should have objected. However, as can be seen, the questions
asked by the State were reasonable follow-ups to Joel’s initial response that he did
not talk to a cop and therefore would have been admissible over any objection
regardless. Perkins also contends that his counsel should have objected to the
State’s questioning regarding Joel’s prior felony conviction for fleeing and grand
theft without establishing how this would have been inadmissible.
{¶80} Perkins makes similar arguments that his counsel was ineffective for
failing to object during the State’s cross-examination of Breann Perkins. On cross,
Breann testified that she had gotten a civil protection order against Perkins. The
prosecutor then inquired into the specifics of the incident leading to the granting of
the protection order. Breann denied some of the prosecutor’s specifics and the
prosecutor continued to question her credibility as Breann had testified on direct
examination to Perkins’ good character. Pursuant to Evid.R. 404(A)(1) the State
was entitled to rebut the evidence of Perkins’ good character on cross
examination. On appeal Perkins cites no authority that the prosecutor’s
questioning was impermissible, merely arguing that Perkins’ trial counsel should
have objected because it was potentially damaging.
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Case No. 5-13-01
{¶81} Perkins next argues that his counsel was ineffective for failing to
object to the evidence and issues associated with the first and second assignments
of error. Having already determined that no reversible error was contained in
those assignments, we cannot find counsel’s failure to object was prejudicial or
rose to the level of ineffective assistance of counsel.
{¶82} Perkins next contends that his trial counsel was ineffective for not
admitting into evidence a “prior assault conviction” of Kelsie’s husband David.
However, Perkins’ counsel argued to the trial court for the admissibility of
David’s prior misdemeanor convictions for assault and criminal damaging, but the
court ruled that “it does not go to the truthfulness or veracity” and “relates to a
specific instance of conduct.” (Tr. at 403). The court then stated, “[y]ou can ask
some further very limited questions to test his credibility, but I’m not going to let
you go into the prior convictions, prior conduct[.]” (Id.) Based on our review of
Evid.R. 609, the trial court properly ruled that the evidence could not be used to
test David’s credibility as the convictions (if there even were convictions)
involved misdemeanors. Perkins cites no law to show us that the convictions
should have otherwise been admissible, and thus we cannot find Perkins’ trial
counsel ineffective on this matter.
{¶83} Finally, Perkins broadly contends his counsel was ineffective for
failing to “undertake reasonable investigations.” Perkins cites as an example that
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Case No. 5-13-01
trial counsel should have called Perkins’ treating cardiologist as an expert to avoid
the issue of having Breann Perkins testify about specific instances of past sexual
conduct. However, we have nothing in the record to establish what any
cardiologist’s testimony would be, and a cardiologist’s testimony that Perkins was
unable to perform sexual acts might have undermined Perkins’ defense of
consensual sexual activity. Thus the record is devoid of anything that would
establish counsel was ineffective in his trial decision on this matter.
{¶84} In conclusion, Perkins has not demonstrated that his counsel was
ineffective, and he has not demonstrated that he was deprived of a fair trial by any
of his counsel’s actions. Accordingly, Perkins’ fifth assignment of error is
overruled.
Sixth Assignment of Error
{¶85} In Perkins’ sixth assignment of error, Perkins argues that the
prosecutor engaged in “persistent and pervasive misconduct” thereby denying
Perkins his right to a fair trial. Specifically, Perkins contends that the prosecutor
elicited testimony in violation of Perkins’ right to remain silent, that the prosecutor
was hostile to Perkins’ brother Joel when Joel was testifying, that the prosecutor
made improper statements during closing arguments, and that the prosecutor
improperly elicited testimony regarding Perkins’ bond status.
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Case No. 5-13-01
{¶86} In reviewing claims of prosecutorial misconduct, the test is whether
the prosecutor's remarks were improper and, if so, whether those comments
prejudicially affected the substantial rights of the defendant. State v. Jones, 90
Ohio St.3d 403, 420 (2000). “The touchstone of analysis ‘is the fairness of the
trial, not the culpability of the prosecutor.’” Id., quoting Smith v. Phillips, 455
U.S. 209, 219, 102 S.Ct. 940 (1982). Where it is clear beyond a reasonable doubt
that the jury would have found the defendant guilty, even absent the alleged
misconduct, the defendant has not been prejudiced, and his conviction will not be
reversed. See State v. Underwood, 2d Dist. Montgomery No. 24186, 2011-Ohio-
5418, ¶ 21. We review allegations of prosecutorial misconduct in the context of
the entire trial. State v. Stevenson, 2nd Dist. Greene No. 2007-CA-51, 2008-Ohio-
2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464 (1986).
{¶87} “Parties have wide latitude in their closing statements, particularly
‘latitude as to what the evidence has shown and what inferences can be drawn
from the evidence.’” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-
Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, at
¶ 213. A prosecutor may comment upon the testimony of witnesses and suggest
the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, at
¶ 116.
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Case No. 5-13-01
{¶88} In arguing prosecutorial misconduct, Perkins first argues that the
prosecutor improperly elicited testimony from Perkins regarding his right to
counsel and to his right to remain silent. Having already found that there was no
reversible error regarding this issue, we decline to further address this.
{¶89} Perkins next argues that the “prosecutor’s dislike of Perkins’ brother
was so obvious the trial court ordered him to be more civil.” This argument
ignores the fact that it was both the prosecutor and Joel Perkins that were
admonished to be more civil, and it is not clear whether either or both prompted
this warning. (Tr. at 632-633). Nevertheless, there is nothing in the record to
establish that there was any further incivility on the part of either the prosecutor or
the witness, and there were no other instances of this in the trial.
{¶90} Perkins then argues that the prosecutor’s closing argument contained
multiple improper statements. Perkins contends that the prosecutor improperly
“resurrected the argument that Perkins drugged Kelsie.” The prosecutor is entitled
to make reasonable inferences from the evidence, and Sayarath testified that she
thought Kelsie was potentially drugged because Kelsie went from sober to highly
intoxicated so quickly. Perkins argues that this was conclusively refuted by the
SANE, but the SANE testified she did not test Kelsie for any drugs because Kelsie
informed her she was highly intoxicated and could not remember some events
from the evening. The prosecutor did not conclusively say Kelsie had been
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drugged, he merely raised it as a possibility. We cannot find that making that
inference based on the explicit testimony of a witness is improper.
{¶91} Perkins then revisits his arguments from the third assignment of
error and the prosecutor’s statements about venue during closing arguments. After
reviewing the record, we find no error with the prosecutor’s statements regarding
venue.
{¶92} Next, Perkins argues that the prosecutor engaged in misconduct by
“repeat[ing] certain questions even though the witness answered.” Perkins points
to no instances where the questioning was improper to rise to the level of
misconduct, and we have not found any herein, so we cannot find that the
prosecutor engaged in misconduct on this basis.
{¶93} Perkins also contends that the prosecutor presented extrinsic
character evidence when Breann Perkins was on the stand. However, Perkins
ignores the fact that Breann was asked about the good character of the accused on
direct examination, making it proper under Evid.R. 404(A)(1) for the prosecutor to
cross-examine her about the character of the accused to test her credibility.
{¶94} Perkins also takes issue with the prosecutor’s references to the
“bond” issue discussed in the second assignment of error. We have previously
found some of those references to be excessive and erroneous. However, as there
were also legitimate reasons for introducing this evidence, we again do not find it
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to be reversible error or reversible misconduct on the part of the prosecutor.
Notably, while the prosecutor did mention the “bond” issue several times, the
prosecutor did not mention the actual criminal charge for which Perkins was “out
on bond,” illustrating that the prosecutor did at least comply to this extent with the
court’s ruling from the earlier hearing on the matter.
{¶95} In conclusion, after reviewing the record, Perkins is unable to
establish that any misconduct materially altered the outcome of his trial.
Accordingly, Perkins’ sixth assignment of error is overruled.
{¶96} For the foregoing reasons, Perkins’ assignments of error are
overruled and the judgment of the Hancock County Common Pleas Court is
affirmed.
Judgment Affirmed
PRESTON, J., concurs.
/jlr
WILLAMOWSKI, P.J., Concurring Separately.
{¶97} I concur with the judgment of the majority affirming the judgment of
the trial court. However, I am writing separately as I would find that the trial court
erred by excluding the testimony concerning the medical condition of the
defendant pursuant to the R.C. 2907.02(D) as is set forth in the fourth assignment
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of error. The portion of the statute in question, commonly referred to as the Rape
Shield Law, states as follows.
Evidence of specific instances of the defendant’s sexual activity,
opinion evidence of the defendant’s sexual activity, and
reputation evidence of the defendant’s sexual activity shall not
be admitted under this section unless it involves evidence of the
origin of semen, pregnancy, or disease, the defendant’s past
sexual activity with the victim, or is admissible against the
defendant under section 2945.59 of the Revised Code, and only
to the extent that the court finds that the evidence is material to
a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.
R.C. 2907.02(D). The purpose of the Rape Shield Law is to prevent the use of a
victim’s sexual history from being used against the victim and prevents the jury
from putting the victim on trial. See State v. Williams, 21 Ohio St.3d 33, 487
N.E.2d 560 (1986). In Williams, the Supreme Court of Ohio held that there
possibly could be situations in which the sexual history of one party with a third
party may be relevant and would be admissible in those situations. Id. at 35. The
Court held that in situations where the testimony affects more than the credibility
of a party, then it is admissible. Id. Additionally, this specific statutory section
prevents the use of a defendant’s sexual history from being used by the
prosecution against the defendant. It does not and constitutionally should not
prevent the defendant from raising his or her own history.
{¶98} Here, Perkins sought to enter testimony from his estranged wife that
Perkins has serious heart issues which limited his ability to engage in sexual
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activity of any kind and would have affected his ability to perform the acts for
which Perkins was being tried. This issue is one of ability to commit the crime,
not merely a question of credibility of the victim. Thus, pursuant to the holding in
Williams, the evidence should have been admissible. The evidence should also
have been admitted because the defendant has the right to waive the protection
provided by the statute.
{¶99} Although I believe the evidence should have been admitted, I would
not sustain the fourth assignment of error because I believe the error was harmless.
There was substantial other evidence to indicate that Perkins had committed the
acts for which he was tried. Thus, the outcome of the case was unlikely to change
even if the evidence had been admitted. Therefore I concur in the judgment.
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