State v. Manley , 2017 Ohio 8271 ( 2017 )


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  • [Cite as State v. Manley, 
    2017-Ohio-8271
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    ALLEN COUNTY
    STATE OF OHIO,
    CASE NO. 1-17-06
    PLAINTIFF-APPELLEE,
    v.
    JOHN L. MANLEY,                                           OPINION
    DEFENDANT-APPELLANT.
    Appeal from Allen County Common Pleas Court
    Trial Court No. CR 2015 0427
    Judgment Affirmed
    Date of Decision: October 23, 2017
    APPEARANCES:
    F. Stephen Chamberlain for Appellant
    Jana E. Emerick for Appellee
    Case No. 1-17-06
    SHAW, J.
    {¶1} Defendant-appellant, John Manley (“Manley”), brings this appeal from
    the January 10, 2017, judgment of the Allen County Common Pleas Court
    sentencing Manley to serve 16 months in prison after he was convicted by a jury of
    Gross Sexual Imposition in violation of R.C. 2907.05(A)(1), a felony of the fourth
    degree. On appeal, Manley argues that he received ineffective assistance of counsel,
    that his conviction was not supported by sufficient evidence, and that his conviction
    was against the manifest weight of the evidence.
    Procedural History
    {¶2} On December 17, 2015, Manley was indicted for one count of Gross
    Sexual Imposition in violation of R.C. 2907.05(A)(1), a felony of the fourth degree.
    Manley pled not guilty to the charge, and his case proceeded to a jury trial. Manley
    was ultimately convicted and on January 10, 2017, he was sentenced to serve 16
    months in prison. It is from this judgment that Manley appeals, asserting the
    following assignments of error for our review.
    Assignment of Error No. 1
    The Defendant was deprived of his right to a fair trial due to the
    ineffective assistance of counsel.
    Assignment of Error No. 2
    The conviction of the Defendant was against the manifest weight
    of the evidence and was based upon insufficient evidence.
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    Case No. 1-17-06
    {¶3} We elect to address the assignments of error out of the order in which
    they were raised.
    Second Assignment of Error
    {¶4} In his second assignment of error, Manley argues that his conviction
    was not supported by sufficient evidence, and that his conviction was against the
    manifest weight of the evidence.
    Relevant Authority
    {¶5} Whether there is legally sufficient evidence to sustain a verdict is a
    question of law. State v. Thompkins, 
    78 Ohio St.3d 380
    , 386 (1997). Sufficiency is
    a test of adequacy. 
    Id.
     When an appellate court reviews a record upon a sufficiency
    challenge, “ ‘the relevant inquiry is whether, after viewing the evidence in a light
    most favorable to the prosecution, any rational trier of fact could have found the
    essential elements of the crime proven beyond a reasonable doubt.’ ” State v.
    Leonard, 
    104 Ohio St.3d 54
    , 
    2004-Ohio-6235
    , ¶ 77, quoting State v. Jenks, 
    61 Ohio St.3d 259
     (1991), paragraph two of the syllabus.
    {¶6} By contrast, in reviewing whether a verdict was against the manifest
    weight of the evidence, the appellate court sits as a “thirteenth juror” and examines
    the conflicting testimony. Thompkins at 387. In doing so, this Court must review
    the entire record, weigh the evidence and all of the reasonable inferences, consider
    the credibility of witnesses and determine whether in resolving conflicts in the
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    Case No. 1-17-06
    evidence, the factfinder “clearly lost its way and created such a manifest miscarriage
    of justice that the conviction must be reversed and a new trial ordered.” 
    Id.
    Furthermore, “[t]o reverse a judgment of a trial court on the weight of the evidence,
    when the judgment results from a trial by jury, a unanimous concurrence of all three
    judges on the court of appeals panel reviewing the case is required. Thompkins at
    paragraph 4 of the syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).
    {¶7} In this case, Manley was convicted of Gross Sexual Imposition in
    violation of R.C. 2907.05(A)(1), which reads, “No person shall have sexual contact
    with another, not the spouse of the offender * * * when * * * [t]he offender
    purposely compels the other person * * * to submit by force or threat of force.”
    Evidence Presented by the State
    {¶8} At trial the State called seven witnesses including the victim, S.J., who
    was 27 years old and the mother of four children. S.J. testified that she initially met
    Manley at a local bar when S.J. was out with a female friend. S.J. testified that
    Manley approached her at the bar, romantically, and S.J. lied to Manley at the time
    and told him that the female S.J. was with was actually her girlfriend, which was
    not the case.
    {¶9} S.J. testified that she later came into contact with Manley again when
    she was looking for a house to rent for herself, her boyfriend, and her four children.
    She testified that she saw a home for rent on Cedar Street in Lima and called the
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    number listed and the landlord happened to be Manley. The Cedar Street home was
    too small for S.J., but Manley had another home for rent that was more suitable,
    which S.J. decided to rent.
    {¶10} S.J. testified that after moving into the residence, she eventually
    became uncomfortable dealing with Manley, so she asked her boyfriend to deal with
    him regarding the rent. S.J. indicated that Manley would occasionally send her text
    messages, but she eventually changed her number.1 S.J. testified that after she
    changed her number, Manley showed up unannounced at her place of employment.
    S.J. testified that Manley made her uncomfortable, so she made an excuse to get him
    to leave, telling Manley that cameras were there and she could get into trouble.
    {¶11} As to the incident in question, S.J. testified that on October 19, 2015,
    around 11 or 11:30 a.m. she was at her residence alone when Manley came in. S.J.
    then testified as follows.
    * * * My front door was open, but we had a screen door. He came
    and said that he had to talk to me. He walked in the house. I was
    sitting on the edge of my couch * * *[.] When he walked in I felt
    uncomfortable, but he started telling me about what him and
    Anthony, which was my boyfriend, had talked about the day
    before about rent, which I already knew about. I told him I knew
    about it so he would cut the story short. He ended up shutting the
    door behind him and locking it. He walked over to me and stood
    above me and kept saying, he said that I knew he was trying to get
    on with me for a long time. He began rubbing himself through
    his pants and then was trying to grab my hand to touch him. I
    was trying to pull away and so then he pulled it out and put my
    1
    It is not clear to what extent, if any, S.J. changed her number specifically because of Manley.
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    Case No. 1-17-06
    hand on his penis. He was trying to rub my hand on it. Then he
    – then he took my breast out of my shirt. I started to scoot. I have
    a sectional and I was trying to scoot this way because I had my
    phone and my knife in my bedroom.
    Q [Prosecutor]: You had what in your bedroom?
    A [S.J.]: A knife and my phone. I scooted around my sectional.
    I didn’t want to make a big deal and start running. So, I was
    scooting and he continued to do it. Then when I got up he ended
    up corralling me in the corner and ejaculated on my floor, in front
    of me basically.
    (Tr. at 95-96).
    {¶12} S.J. would clarify that Manley held her hand on his penis, that she tried
    to pull back, that she said no, and told him that she wanted him to go away. S.J.
    also testified that she was too scared to run, because she was afraid it would make
    it worse and she was scared of what Manley might do to her.
    {¶13} S.J. testified that she “freaked out,” and Manley could tell. S.J.
    testified that she kept saying to him that she had to go pick up her boyfriend’s cousin
    so that Manley would leave. (Tr. at 104). S.J. testified that Manley pulled his pants
    up and walked out the front door, and that she quickly followed him out in case he
    changed his mind and wanted to come back inside. S.J. testified that she then did
    go to her boyfriend’s cousin’s house, who lived nearby.
    {¶14} S.J. told her boyfriend’s cousin what happened and got in touch with
    her boyfriend, who was at work. Then S.J. went to her sister’s residence and told
    her what happened. S.J. went back to her residence with her sister, at which time
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    Case No. 1-17-06
    Manley returned to speak with S.J. Manley made an audio recording of that
    conversation, which was introduced at trial. On the recording, Manley asks why
    S.J. told Anthony that Manley had raped her. S.J. indicated that she never said
    “rape” specifically, but she said that Manley took it too far. Manley admitted on the
    audio recording that he might have taken it too far and he stated that he would not
    come at her again like that.
    {¶15} Later that same evening, S.J. called the police and the police
    responded to her residence. S.J. was interviewed and the portion of her carpet where
    Manley had purportedly ejaculated was removed and seized for evidence. DNA
    was taken from S.J. and a swab was taken from a place on her neck where she said
    Manley had kissed her during the encounter.
    {¶16} The substance on the carpet that was collected turned out to be semen
    and the State’s expert testified that it was consistent with Manley’s DNA. Further,
    DNA consistent with Manley was found on S.J.’s neck.
    {¶17} Along with S.J., the State called multiple officers to testify who were
    involved in responding to the scene, collecting evidence, and investigating the
    crime. The State presented expert testimony from BCI linking the DNA evidence
    to Manley. The State also called S.J.’s sister, who testified as to what S.J. told her
    on the date of the incident and S.J.’s demeanor at the time.
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    Sufficiency of the Evidence
    {¶18} Manley argues that the preceding evidence presented by the State at
    trial was insufficient to convict him at trial of Gross Sexual Imposition. We
    disagree.
    {¶19} Viewing the evidence in the light most favorable to the State, as we
    are directed, there is clearly testimony that Manley forced S.J.’s hand onto his penis
    and that he held it there, constituting both force and sexual contact. There was also
    clear testimony that S.J. was not, and never had been, the spouse of Manley. S.J.
    testified to additional sexual contact, such as Manley grabbing her breast. She also
    indicated that Manley “corralled” her in the corner. Based on this testimony, we
    cannot find that insufficient evidence was presented to convict Manley of Gross
    Sexual Imposition.
    Defense Case
    {¶20} Manley took the stand in his own defense. Manley contended that
    from the first meeting he had with S.J. at a local bar he and S.J. had started a sexual
    relationship. Manley contended that one night he went to S.J.’s work and she
    performed oral sex on him and that they then had sexual intercourse the next day at
    the empty house on Cedar Street that S.J. had originally looked at to rent. As to the
    incident in question, Manley testified that S.J. had consensually performed oral sex
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    Case No. 1-17-06
    on him, and that they were interrupted when someone knocked at the door. Manley
    testified that he and S.J. then got into an argument, at which point he left.
    {¶21} Manley testified that later on the date of the alleged incident, he
    received a message from S.J.’s boyfriend accusing Manley of raping S.J. Manley
    testified that he then went back to S.J.’s residence and had a conversation with her
    and her sister, which he recorded, asking why S.J. had accused him of rape. Manley
    testified that the reason why he said on the recording that he had taken it “too far”
    was because he had yelled at S.J. after the consensual sexual encounter. Manley
    adamantly denied forcing any type of sexual contact upon S.J., claiming that the two
    had been engaged in an on-again, off-again affair since they had met.
    {¶22} A friend of Manley’s also testified at trial. She testified that S.J. had
    a reputation for being an untruthful person.
    State’s Rebuttal
    {¶23} The State recalled its detective on rebuttal and played a recording of
    Manley speaking with S.J.’s boyfriend shortly after the purported incident. On the
    tape, Manley repeatedly denies having any kind of current sexual relationship with
    S.J.
    Manifest Weight of the Evidence
    {¶24} Manley argues that even if there was sufficient evidence to convict
    him, his conviction was against the manifest weight of the evidence. We disagree.
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    {¶25} The jury in this case was able to see and hear the testimony of both
    S.J. and Manley and weigh their credibility. While Manley may argue that S.J. was
    lying and that she was not credible, the jury elected to believe her. The jury also
    elected not to believe Manley’s explanation regarding why he had said on his own
    recording that he took things too far.
    {¶26} Moreover, Manley may claim that his counsel failed to investigate
    certain items that would help prove his innocence, but the jury heard Manley’s
    testimony that a consensual relationship existed and the jury did not believe it.
    Based on the record before us and the testimony presented we cannot find that the
    jury clearly lost its way or created a manifest miscarriage of justice. Therefore,
    Manley’s second assignment of error is overruled.
    First Assignment of Error
    {¶27} In his first assignment of error, Manley argues that he received
    ineffective assistance of trial counsel. Specifically, Manley argues that his attorney
    was unfamiliar with the rape shield law, that his attorney failed to “grasp [] hearsay
    rules that are basic and fundamental[,]” that his attorney failed to properly impeach
    a witness, and that trial counsel failed to adequately investigate certain evidence that
    Manley feels would have shown that he was innocent.
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    Standard of Review
    {¶28} To establish an ineffective assistance of counsel claim, Manley must
    show that his trial counsel’s performance was deficient and that counsel’s
    performance prejudiced him. State v. Jackson, 
    107 Ohio St.3d 53
    , 
    2005-Ohio-5981
    ,
    ¶ 133, citing Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). The failure to
    make either showing defeats a claim of ineffective assistance of counsel. State v.
    Bradley, 
    42 Ohio St.3d 136
    , 143 (1989), quoting Strickland at 697 (“[T]here is no
    reason for a court deciding an ineffective assistance claim to approach the inquiry
    in the same order or even to address both components of the inquiry if the defendant
    makes an insufficient showing on one.”).
    Analysis
    {¶29} Manley first argues that his counsel was somehow deficient because
    the prosecutor initially misstated the rape shield law.       At the time of the
    conversation regarding the rape shield law, the parties were discussing whether
    specific instances of sexual activity between Manley and the victim could be
    introduced into evidence. The prosecutor initially indicated that such testimony
    would be improper; however, the prosecutor later admitted to misreading the rule.
    Thus, any misstatement that such testimony was inadmissible was later corrected,
    and defense counsel did, in fact, introduce testimony of a prior purported sexual
    history between Manley and S.J. Therefore, Manley’s arguments are not supported,
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    Case No. 1-17-06
    and not well-taken. Similarly, Manley’s claim that his trial counsel did not have a
    “basic grasp” of hearsay rules is unsupported in his brief by any record citations to
    illustrate how this alleged failure prejudiced him. We find no merit to this argument.
    {¶30} Manley next argues that his trial counsel was ineffective for failing to
    introduce extrinsic evidence of a prior inconsistent statement of the victim. He cites
    no specific instance in the record to support his contention, just arguing generally
    that trial counsel failed to properly introduce relevant prior inconsistent statements
    that this Court has no knowledge of actually existing. Notably, at least one of S.J.’s
    purportedly prior inconsistent statements was talked about at length by the parties
    and the trial court ruled that the prior inconsistent statement was related to an
    inconsequential issue and thus was not admissible at trial. Defense Counsel argued
    repeatedly that it was an issue of consequence, thus we fail to see how counsel could
    have been ineffective for making his arguments simply because he did not prevail,
    particularly given that the extrinsic evidence would have been used to discount an
    irrelevant issue.
    {¶31} Manley also argues that his trial counsel was ineffective for failing to
    acquire any text messages or phone records between S.J. and the defendant. First,
    we have no knowledge as an appellate court that such records exist at all, let alone
    contain anything favorable to Manley. In order to find ineffective assistance of
    counsel, we would have to speculate that the records existed, that they were
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    Case No. 1-17-06
    favorable to Manley and that they were so favorable that counsel was ineffective
    for failing to present them. There are mechanisms to present newly discovered
    evidence via post-conviction procedures. Inviting an appellate court to speculate
    about hypothetical material is not proper grounds for reversal under ineffective
    assistance of counsel.
    {¶32} Finally, Manley makes a similar argument claiming that his counsel
    was ineffective for failing to get a blanket tested for DNA. Manley claims that he
    and S.J. had intercourse on a certain blanket in an otherwise empty house on Cedar
    Street long before the incident in question. Manley apparently gave the blanket to
    the police after this case was filed to be tested for DNA.
    {¶33} The blanket at issue came up at trial, where Manley repeatedly said he
    did not know why it was not tested because it would show that an ongoing sexual
    relationship occurred.    However, in the State’s rebuttal case, the detective
    investigating the case indicated that when S.J. moved out of the residence Manley
    owned, she left a number of items behind, which included various articles of
    clothing, and Manley eventually received access to that residence. Thus the State
    insinuated that Manley had access to clothes and (potentially) blankets from the
    residence that may have contained S.J.’s DNA.
    {¶34} Assessing Manley’s argument, he again invites this court to speculate
    that the DNA on the blanket, if tested, would support his story and that there were
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    Case No. 1-17-06
    not alternative explanations for it such as the one provided by the State at trial. We
    decline to engage in such speculation. Given that there is no actual indication in the
    record that evidence favorable to Manley truly existed, we can find neither that
    counsel’s performance was deficient nor that any deficient performance was
    prejudicial. Therefore, Manley’s first assignment of error is overruled.
    Conclusion
    {¶35} For the foregoing reasons Manley’s assignments of error are overruled
    and the judgment of the Allen County Common Pleas Court is affirmed.
    Judgment Affirmed
    PRESTON, P.J. and ZIMMERMAN, J., concur.
    /jlr
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Document Info

Docket Number: 1-17-06

Citation Numbers: 2017 Ohio 8271

Judges: Shaw

Filed Date: 10/23/2017

Precedential Status: Precedential

Modified Date: 10/23/2017