State v. Stuckey , 2022 Ohio 4145 ( 2022 )

[Cite as State v. Stuckey, 2022-Ohio-4145.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
CASE NO. 4-22-04
PLAINTIFF-APPELLEE,
v.
RONALD E. STUCKEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 20 CR 13873
Judgment Affirmed
Date of Decision: November 21, 2022
APPEARANCES:
Kenneth R. Bailey for Appellant
Russell R. Herman for Appellee
Case No. 4-22-04
WILLAMOWSKI, J.
{¶1} Defendant-appellant Ronald D. Stuckey (“Stuckey”) appeals the
judgment of the Defiance County Court of Common Pleas, alleging that he was
denied his right to the effective assistance of counsel. For the reasons set forth
below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} Kerisha Sharp (“Sharp”) is the mother of M.W. Tr. 87. At the times
relevant to this case, Stuckey was married to Sharp’s mother. Tr. 88. On weekends
in between July and September of 2019, M.W. went to spend time at her
grandmother’s house where Stuckey lived. Tr. 88, 154, 157. In September of 2019,
Sharp noticed that M.W. seemed “real depressed,” was “crying randomly,” and was
“just being anti-social.” Tr. 89. Sharp then sought counseling for M.W. Tr. 93.
After M.W. expressed thoughts of self-harm, she was brought to a hospital for
examination. Tr. 90. At the hospital, M.W. told Sharp that Stuckey had touched
her inappropriately on multiple occasions while she was at his house. Tr. 93, 158.
On September 30, 2019, M.W. reported Stuckey to her counselor. Tr. 94.
{¶3} On February 7, 2020, Stuckey was indicted on five counts of gross
sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree.
Doc. 1. On December 9, 2021, these charges were tried before a jury. Tr. 1. Both
Stuckey and M.W. testified at trial. Tr. 125, 190. On December 10, 2021, the jury
found Stuckey guilty of three charges of gross sexual imposition. Doc. 35-39. The
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jury acquitted Stuckey of the remaining two charges of gross sexual imposition.
Doc. 35-39. The trial court issued its judgment entry of sentencing on February 14,
2022. Doc. 42.
{¶4} Stuckey filed his notice of appeal on March 9, 2022. Doc. 46. On
appeal, he raises the following two assignments of error:
First Assignment of Error
Defense counsel falls below the standard for the effective
assistance of counsel by failing to file a Rule 29 Motion where the
evidence is insufficient to support a conviction.
Second Assignment of Error
Defense counsel falls below the standard of effective assistance of
counsel by failing to require the State to make the counts of an
indictment distinguishable through a bill of particulars or
discovery.
First Assignment of Error
{¶5} Stuckey argues that his counsel was ineffective for failing to make a
Crim.R. 29 motion at trial.
Legal Standard
{¶6} “Under Ohio law, ‘a properly licensed attorney is presumed to carry out
his duties in a competent manner.’” State v. Harvey, 3d Dist. Marion No. 9-19-34,
2020-Ohio-329, ¶ 57, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993 WL
270995 (July 22, 1993). “For this reason, the appellant has the burden of proving
that he or she was denied the right to the effective assistance of counsel.” State v.
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Cartlidge, 3d Dist. Seneca No. 13-19-44, 2020-Ohio-3615 ¶ 39. “In order to prove
an ineffective assistance of counsel claim, the appellant must carry the burden of
establishing (1) that his or her counsel’s performance was deficient and (2) that this
deficient performance prejudiced the defendant.” State v. McWay, 3d Dist. Allen
No. 1-17-42, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶7} In order to establish deficient performance, the appellant must
demonstrate that trial “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
State v. Morrissey, 2022-Ohio-3519, --- N.E.3d ---, ¶ 26 (3d Dist.), quoting
Strickland at 687. “Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance.” McWay at ¶ 24, quoting State v.
Pellegrini, 3d Dist. Allen No. 1-12-30, 2013-Ohio-141, ¶ 40.
{¶8} “In order to establish prejudice, ‘the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.’” State v. Berry, 3d Dist. Union No. 14-20-05, 2021-Ohio-1132, ¶
122, quoting State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.). If the
appellant does not establish one of these two prongs, the appellate court does not
need to consider the facts of the case under the other prong of the test. State v.
Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State v. Walker,
2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.).
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Legal Analysis
{¶9} Stuckey argues that his convictions were not supported by sufficient
evidence and that his counsel was, therefore, ineffective for failing to make a
Crim.R. 29 motion at trial. “A Crim.R. 29 motion challenges whether the state has
presented evidence upon which a jury could have found the defendant guilty.” State
v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 12 (1st Dist.). Crim.R. 29(A) reads,
in relevant part, as follows:
The court on motion of a defendant or on its own motion, after
the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the
indictment, information, or complaint, if the evidence is
insufficient to sustain a conviction of such offense or offenses. The
court may not reserve ruling on a motion for judgment of
acquittal made at the close of the state’s case.
Crim.R. 29(A). Appellate courts apply a sufficiency-of-the-evidence standard when
examining challenges involving Crim.R. 29 motions. State v. Sullivan, 2017-Ohio-
8937, 102 N.E.3d 86, ¶ 27 (3d Dist.).
{¶10} A challenge to the sufficiency of the evidence supporting a conviction
“is a question of law and a ‘test of adequacy rather than credibility or weight of the
evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40,
quoting State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. The
applicable standard
is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that
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the essential elements of the crime were proven beyond a
reasonable doubt.
State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 8, quoting State
v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.).
Failure to move for an acquittal under Crim.R. 29 is not
ineffective assistance of counsel, where the evidence in the state’s
case demonstrates that reasonable minds can reach different
conclusions as to whether the elements of the charged offense have
been proved beyond a reasonable doubt, and that such a motion
would have been fruitless.
State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-Ohio-4183, ¶ 35, quoting
State v. Giddens, 3d Dist. Allen No. 1-02-52, 2002-Ohio-6148, ¶ 27. See also State
v. Jones, 2d Dist. Montgomery No. 25723, 2013-Ohio-5231, ¶ 13.
{¶11} In order to prove a defendant committed the offense of gross sexual
imposition in violation of R.C. 2907.05(A)(4), (1) “ha[d] sexual contact with
another, not the spouse of the offender * * *” and (2) “the other person * * * is less
than thirteen years of age, whether or not the offender knows the age of that person.”
R.C. 2907.05(A)(4). R.C. 2907.05(A)(4). Further, R.C. 2907.01(B) defines “sexual
contact” as
any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing
or gratifying either person.
R.C. 2907.01(B)(1). Thus, “[t]hrough the definition of sexual contact in R.C.
2907.01(B), gross sexual imposition as described in R.C. 2907.05(A)(4) requires
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proof of touching ‘for the purpose of sexually arousing or gratifying either person.’”
(Emphasis sic.) State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d
816, ¶ 25, quoting R.C. 2907.01(B).
{¶12} At trial, M.W. testified that she was eleven in between July and
October of 2019 and that she was frequently at Stuckey’s house during the weekends
in that timeframe. Tr. 126-127, 158. She then testified as to the following:
[W]hen I would get dropped off, Ron would only try to hug me *
* *. And then when we were in the house, he has his computer in
the living room in the far * * * back on the right side and then he
has his chair, his computer, and his little table and he played this
farm simulator game. And when I would ask to play or if anyone
would ask to play, we would have to sit on his lap because he
didn’t like his computer being left alone or whatever * * *. And
when I would be playing a game, he would have his hand on my
leg like around my vagina area. It would either be on it or like
real close to it.
Tr. 128-129. The State then asked M.W. questions about the timing of these
incidents. She stated that “it happened like throughout the two or three months, but
like it would happen throughout the day * * *.” Tr. 132. She affirmed that Stuckey
inappropriately touched her vaginal area “a number of times * * *.” Tr. 133. She
reported that Stuckey would inappropriately touch her vaginal area “sometimes
throughout the day” and that “it would happen multiple times.” Tr. 133. M.W.
specified that Stuckey never put his hands under her clothing and never asked that
she touch him. Tr. 150-151.
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{¶13} Further, in addition to her testimony about Stuckey repeatedly
touching her vaginal area, M.W. identified three specific incidents that occurred in
between July and September of 2019. Doc. 1. First, M.W. testified that, “once or
twice,” Stuckey did not just touch her vaginal area but “tried to rub it.” Tr. 129.
See Tr. 149, 157. Second, M.W. then stated that, on one specific occasion, Stuckey
“tried to kiss me like out of nowhere and I blocked it with my hand.” Tr. 129. See
Tr. 149. She further explained that Stuckey attempted to kiss her on the lips. Tr.
160. Third, M.W. then stated that, on yet another occasion, Stuckey was wearing a
robe but no other clothing; that she was “sitting like on the arm of his recliner
playing a game”; that “he moved his robe over”; and that this exposed “his private
area” to her. Tr. 130. See Tr. 149, 161. After hearing this testimony, the jurors
found Stuckey guilty of three counts of gross sexual imposition.
{¶14} In this case, M.W.’s testimony detailed at least three specific incidents
that that occurred on days that she was with Stuckey in between July and September
of 2019. Tr. 149. She also testified that, on the days that she was with Stuckey in
this timeframe, he would touch her vaginal area multiple times throughout the day.
Tr. 132-133. The details of these specific incidents coupled with the testimony
about Stuckey touching her vaginal area provide some evidence that Stuckey had
sexual contact with a person under the age of thirteen on at least three occasions.
Having reviewed the evidence in the record in a light most favorable to the
prosecution, we conclude that M.W.’s testimony provided sufficient evidence to
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substantiate each of the essential elements for three convictions of gross sexual
imposition.
{¶15} In conclusion, since Stuckey’s convictions for gross sexual imposition
are supported by sufficient evidence, he cannot demonstrate that the outcome of this
proceeding would have been different had his counsel made a Crim.R. 29 motion.
Thus, in the absence of showing such prejudice, he has not carried the burden of
establishing an ineffective assistance of counsel claim. For this reason, Stuckey’s
first assignment of error is overruled.
Second Assignment of Error
{¶16} Stuckey argues that his counsel was ineffective for failing to demand
a more specific bill of particulars from the State. He also argues that the jurors
entered convictions that were against the weight of the evidence.
Legal Standard
{¶17} We herein reincorporate the legal standard governing ineffective
assistance of counsel claims as set forth under the first assignment of error.
Legal Analysis
{¶18} In this analysis, we will consider Stuckey’s argument regarding the
failure of defense counsel to request a more responsive bill of particulars before we
examine whether the jurors lost their way in finding him guilty of three counts of
gross sexual imposition. In this case, defense counsel filed a motion that requested
a bill of particulars from the State. Doc. 6. In response, the State filed a bill of
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particulars. Doc. 30. On appeal, Stuckey argues that the State’s bill of particulars
did not sufficiently distinguish the five separate instances of gross sexual imposition
and that his defense counsel should have requested a more detailed bill of
particulars.
{¶19} Under Crim.R. 7(E), a defendant may request a bill of particulars from
the State. Crim.R. 7(E). See State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801,
783 N.E.2d 591, ¶ 22 (3d Dist.).
The purpose of a bill of particulars is to inform a defendant of the
nature of the charge against him with sufficient precision to
enable him to prepare for trial, to prevent surprise, or to plead
his acquittal or conviction in bar of another prosecution for the
same offense.
City of Toledo v. Enis, 6th Dist. Lucas No. L-86-404, 1987 WL 19477, *1 (Oct. 30,
1987), quoting State v. Halleck, 24 Ohio App.2d 74, 76, 263 N.E.2d 917, 920 (4th
Dist. 1970).
A bill of particulars need not include information that is within
the knowledge of the defendant or information that a defendant
could discover with due diligence. State v. Sessler, 3d Dist. No. 3-
06-23, 2007-Ohio-4931, ¶ 11, quoting [State v.] Miniard, [4th Dist.
Gallia No. 04CA1,] 2004-Ohio-5352, at ¶ 23. Additionally, a bill
of particulars need not be precise, but rather ‘need only be
directed toward the conduct of the accused as it is understood by
the [S]tate to have occurred.’ [State v.] Gingell, 7 Ohio App.3d
[364,] at 367[, 455 N.E.2d 1066 (1982)].
State v. Balo, 3d Dist. Allen No. 1-10-48, 2011-Ohio-3341, ¶ 42. “A bill of
particulars is not designed to provide the accused with specifications of evidence or
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to serve as a substitute for discovery.” State v. Smith, 2d Dist. Montgomery No.
19370, 2003-Ohio-903, ¶ 20.
{¶20} To demonstrate prejudice with this argument, Stuckey would need to
establish that, but for his defense counsel’s failure to request a more specific bill of
particulars, the outcome of this proceeding would have been different. State v.
Hartmann, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 47 (2d Dist.). As an initial matter,
we note that Stuckey has not identified what additional, available, material
information the State should have included in the bill of particulars. See State v.
Lawrinson, 49 Ohio St.3d 238, 239, 551 N.E.2d 1261, 1262 (1990).
{¶21} Further, Stuckey has not advanced an argument that demonstrates how
the brevity of the bill of particulars prejudiced his defense. Defense counsel capably
cross-examined the State’s witnesses and was able to present evidence in Stuckey’s
defense. See also State v. Williams, 11th Dist. Ashtabula No. 2000-A-0005, 2001
WL 589260, *5 ¶ 24 (June 2, 2001) (considering whether alleged deficiencies in a
bill of particulars “hamper[ed] * * * preparation for trial.”). Based on his defense
at trial, we find no indication that Stuckey or defense counsel was not aware of the
“nature of the charges against him.” State v. Rosa, 8th Dist. Cuyahoga Nos. 100324
and 100325, 2014-Ohio-2764, ¶ 13.
{¶22} Stuckey’s trial defense was also a straightforward denial of the
allegations against him. Tr. 191. State v. Kisseberth, 2d Dist. Montgomery No.
20500, 2005-Ohio-3059, ¶ 65 (Since the accused’s “defense at trial consisted of a
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complete denial of wrongdoing,” “defense counsel lacked compelling reasons to file
a motion for a bill of particulars, and had he done so, it would have no discernible
impact on the outcome of the trial.”), reversed in part on other grounds, In re Ohio
Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847
N.E.2d 1174, ¶ 86. In this appeal, Stuckey has not demonstrated how a more
specific bill of particulars would have altered this defense in any way.
{¶23} Finally, under the facts of this case, Stuckey cannot demonstrate that
the outcome of the trial would have been different in the absence of establishing that
the brevity of the bill of particulars hampered his defense. At trial, both Stuckey
and M.W. testified about the allegations underlying the charges in this case. Tr.
125, 190. Ultimately, resolution of these charges “rested on whose version of events
the jury believed.” State v. Butcher, 11th Dist. Ashtabula No. 2002-A-0059, 2003-
Ohio-5537, ¶ 25. Stuckey has not demonstrated how a more specific bill of
particulars would have changed how the jurors weighed this testimony presented at
trial. Id. See also State v. D.H., 10th Dist. Franklin No. 16AP-501, 2018-Ohio-559,
¶ 80-81. Thus, we find this first argument to be without merit.
{¶24} Next, Stuckey argues that the fact that he was found guilty of only
three of the five charges of gross sexual imposition indicates that “the jury clearly
lost its way.” Appellant’s Brief, 9.
When an appellate court analyzes a conviction under the manifest
weight standard, it ‘sits as the thirteenth juror.’ [State v.]
Thompkins, 78 Ohio St.3d at 387, [1997-Ohio-52,] 678 N.E.2d 541-12-
Case No. 4-22-04
[(1997)]. Accordingly, it must review the entire record, weigh all
of the evidence and its reasonable inferences, consider the
credibility of the witnesses, and determine whether the fact finder
‘clearly lost its way’ in resolving evidentiary conflicts and ‘created
such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). When applying
the manifest weight standard, a reviewing court should only
reverse a trial court’s judgment ‘in exceptional case[s]’ when the
evidence ‘weighs heavily against the conviction.’ Id. at paragraph
three of the syllabus.
State v. Blanton, 2015-Ohio-4620, 48 N.E.3d 1018, ¶ 44 (3d Dist.). “A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses.” State v, Wilson,
2022-Ohio-504, 185 N.E.3d 176, ¶ 59 (3d Dist.), quoting Sullivan, supra, at ¶ 38.
{¶25} Stuckey asserts that the evidence cannot be interpreted to support
convictions for only three of the five charges for gross sexual imposition in this
case. However, as we noted in our prior assignment of error, M.W. was able to
identify at least three specific incidents that occurred in between July and September
2019. First, she stated that Stuckey attempted to rub her vaginal area “once or
twice.” Tr. 129. Second, she testified that, on one occasion, Stuckey attempted to
kiss her on the lips but that she was able to block him with her hand. Tr. 129. Third,
M.W. stated that, on another occasion, Stuckey was wearing a robe and exposed
himself to her. Tr. 129. See Tr. 149.
{¶26} Based on M.W.’s testimony about Stuckey’s behavior in these three
incidents in conjunction with her testimony about Stuckey touching her vaginal
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area, the jurors concluded that the State had established beyond a reasonable doubt
that Stuckey had sexual contact with a person under the age of thirteen on three
occasions. Thus, a jury could reasonably interpret the evidence presented at trial to
find Stuckey guilty of only three of the charges of gross sexual imposition. There
is no indication that the jurors lost their way in finding Stuckey guilty on three
charges of gross sexual imposition. Having examined the evidence in the record on
the basis of its weight and credibility, we conclude that Stuckey’s manifest weight
argument is not persuasive.
{¶27} In conclusion, Stuckey has not, with these arguments, established an
ineffective assistance of counsel claim. He has not established that he was
prejudiced by defense counsel’s decision not to request a more specific bill of
particulars. He also has not established that the jurors lost their way and returned
verdicts against the manifest weight of the evidence. Accordingly, his second
assignment of error is overruled.
Conclusion
{¶28} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Defiance County Court of Common Pleas
is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
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