State v. Hartman , 2016 Ohio 2883 ( 2016 )

[Cite as State v. Hartman, 2016-Ohio-2883.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 26609
Plaintiff-Appellee :
: Trial Court Case No. 14-CR-834
v. :
: (Criminal Appeal from
MARK HARTMAN : Common Pleas Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 6th day of May, 2016.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
S. ADELE SHANK, Atty. Reg. No. 0022148, Law Office of S. Adele Shank, 3380 Tremont
Road, 2nd Floor, Columbus, Ohio 43221-2112
and
LAWRENCE J. GREGER, Atty. Reg. No. 0002592, Suite 1100 Liberty Tower, 120 West
Second Street, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Mark Hartman appeals from his conviction and
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sentence on three counts of Rape. Hartman sets forth fifteen assignments of error, alleging
numerous issues involving ineffective assistance of counsel, a defective indictment, the
improper admission of hearsay, a confrontation clause error based on the admission of
scientific evidence from an improper source, and that his convictions are both unsupported
by sufficient evidence and against the manifest weight of the evidence. Hartman also
argues that the cumulative effect of all errors requires reversal. The State asserts that
Hartman was not prejudiced by any of the alleged errors.
{¶ 2} We conclude that sufficient evidence was presented to support the
convictions and that the convictions are not against the manifest weight of the evidence.
We conclude that the indictment was not defective, that any errors regarding the admission
of hearsay were harmless, and that trial counsel’s strategic decisions, if falling below an
objective standard of reasonable representation, are not sufficiently prejudicial to conclude
that there is a reasonable probability that the outcome of the trial would have been different
but for the ineffective assistance of counsel. We conclude that the potential error which
may have affected the defendant’s right to confrontation was waived. Finally, we
conclude that even considered cumulatively, any errors are not sufficiently prejudicial to
merit reversal. Accordingly, the judgment of the trial court is Affirmed.
I. Late Night Party Leads to Sexual Encounter
{¶ 3} During his winter break from college, Mark Hartman agreed to spend the
evening with his best friend, Gordon, who was housesitting at the home of a family friend.
Hartman, Gordon, and one other friend were drinking heavily. Gordon texted a female
friend, Courtney, inviting her to the party. Courtney agreed, and brought two of her
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girlfriends with her, M.W. and Cassie. The women arrived at the party around 11:00 p.m.
Some time during the evening, M.W. texted her parents to let them know she would not
be returning home that evening. After about one hour at the party, Cassie texted her
friends to silently communicate that she wanted to leave, because she was allergic to the
dog in the house. Courtney and M.W left the party and took Cassie back to Courtney’s
house, where she had left her car. M.W. and Courtney returned to the party after 1:00 a.m.
and joined the men in their drinking and card-playing.
{¶ 4} After the third male went to bed, Courtney and Gordon were in the bathroom
together, which left M.W. and Hartman alone in the living room. M.W. testified that she
wanted to go to bed, and Hartman agreed to show her to a bedroom. M.W. testified that
she was a willing participant when Hartman began to kiss her. After this point, M.W.’s and
Hartman’s versions of the facts began to diverge.
{¶ 5} M.W. testified that after she and Hartman entered the bedroom, he initiated
kissing, and she was okay with that. She testified that as Hartman continued to kiss her,
he put his hand up her shirt, she said no, and he stopped. M.W. testified that “then we
kept kissing and he pushed me onto the bed, and then he went up my shirt again. And
again I said no. Which was fine. So we kept - - we kissed again. And then that’s when he
started to go down my pants, and I said no. And that’s when it didn’t stop. He just kept
saying things like, it’s fine, it will be okay, it will be fun, stuff like that. So then he went
ahead and took off my shirt and bra.” Trial Transcript at 29.
{¶ 6} M.W. testified that she began to get nervous because she was not sure what
was going to happen. She testified that Hartman continued to go down her pants again as
he was kissing her, and she kept saying “no, that I didn’t want to do that.” Id. at 30. She
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described that he removed her shirt, bra, and leggings, and then removed his own clothes.
She testified, “that’s when I basically just started to get really scared about the situation
and wasn’t sure how to handle the situation.” Id. She explained the basis of her fear by
testifying:
I was scared because I knew that I was not as strong as he was,
and I knew that if he would have done anything like hit me or anything like
that I would have been out and I wouldn’t have really remembered what had
happened. And it was more important to me to remember what was
happening to me than not know what was happening to me. As a girl
growing up in your teenage years, you hear a ton of stories about what
people can do to you and what, you know, strangers do and you don’t know
the person and you’re not sure what they’re going to do. So it just really
scared me to not - - like and I didn’t know who was around me. I didn’t know
where Courtney was. I didn’t know where anyone else in the house was.
And I just got really scared that something bad might have happened to me.
And then I kept thinking that in this situation I can outsmart the situation,
and you know, I can get out the smart way. And I like have been told how
to get out of these situations and how to be smart. So that’s what I kept
thinking, was how I was going to get out because I knew I wasn’t strong
enough. And I was worried about being hit, or something.
Id. at 32.
{¶ 7} M.W. testified that Hartman continued to kiss her – causing the hickeys on
her neck, and he continued to touch her in different places, including penetrating her
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vagina with his fingers. When asked what she was doing at this point, M.W. responded:
I was just sitting there. A few times I had started to go along with it
because I thought that if I went along with some of it, he might let me go
and he might think that I was like kind of into it, too, and that if he thought
that, that he might let me leave or like go and do something to the point
where I could try and get out and escape. But basically, the whole time I
would say no before and I just kind of sat there. I wasn’t really into it or doing
anything back. I was just there.
Id. at 35.
{¶ 8} M.W. testified that Hartman proceeded to penetrate her vagina with his penis
after she said no, and that he kept saying “like its okay, it will be fine, it will be fun, don’t
worry about it.” Id. at 36. M.W. testified that she kept saying no, and was numb because
she was so scared. She testified that he stopped, took a break, and then began touching
her again, and again penetrated her vagina with his penis. Afterwards, M.W. testified that
she left the room and went into the bathroom, and that Hartman followed her, and began
kissing her again. She described that he grabbed her arms, using enough force to pull her
into the shower with him. She again testified that she “started to go along with it, too,
because I was scared it was going to happen again and I wanted to get out of the situation,
and I was like maybe -- again, I kept thinking the same thing. If I go along with this, there
might be a chance that I can get out of this situation. So that’s what I kept thinking the
whole time was if I go along with this for a little bit, there might be a chance that I can get
out and this wouldn’t have happened to me.” Id. at 40.
{¶ 9} M.W. testified that after they showered, they returned to the bedroom, and
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Hartman began kissing her again, pushed her back onto the bed and again he penetrated
her vagina with his penis. M.W. testified that “I was just so numb and didn’t really feel like
fighting back because I was so scared. And I was like, you know what, I’ll just let it happen
and then it will be done and then I’ll get out of the situation.” Id. at 41. M.W. testified that
when he was done, she attempted to leave the bed, but he pulled her back into the bed.
When she thought Hartman was asleep, she tried to move, but he was still awake and he
asked her to stay. M.W. testified that she agreed to stay there with him “because I didn’t
want anything to happen again.” Id. at 42.
{¶ 10} Hartman’s version of the facts was presented though the admission of a
written statement he gave to the police the day after the event, State’s Ex. 24, the
testimony of the officer who interviewed him, and from Hartman’s testimony at trial.
Hartman admitted that he was intoxicated earlier in the evening, but he testified that he
had stopped drinking alcoholic beverages, and was drinking water before the sexual
encounter. He testified that M.W. initiated intimacy by kissing him before they went to the
bedroom. He testified that they engaged in a good amount of kissing, and when he began
to feel her breasts, and when he slid his hand down her pants, he specifically asked if she
would like to have sex, and she answered yes. He testified that she willingly participated
in the sexual encounter by helping to remove her own clothes and his clothes, asked him
to squeeze her breasts and guided his hand, switched positions, and upon request willingly
engaged in oral sex. Hartman testified that the only time she said “No” was when he asked
if “we could have sex until we finished, and she said no at that time.” He stated that he
stopped after she said “No,” and then they conversed a bit, talking about life, relationships
and school, and then he asked again “if we could finish,” and she said, “Yes, go ahead.”
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Because he did not have a second condom, he asked if she was on birth control, and she
replied, “you really think I would have sex with a random 20 years old without birth control?”
His testimony that he pulled out and ejaculated on the bed was later corroborated by DNA
testing on the bed coverings. The fact that M.W. was taking birth-control medication was
reflected in hospital records.
{¶ 11} The victim’s testimony reflects that she did have her cell phone with her that
evening -- she received a text from the other female at the party that she wanted to go
home, and she texted her parents to tell them she would not be coming home that evening.
The text messages that M.W. and her friend Courtney sent to each other later that morning
were admitted into evidence as defendant’s Ex. H. In the text messages, M.W. expressed
reluctance about reporting the sexual assault, in the following exchange:
M.W.: I need to think about if I want to press charges or not.
Courtney: What are you thinking?
M.W.: I don’t know. I really don’t know.
Courtney: Are you wanting to confront him?
M.W.: No. I don’t ever want to talk to him. I just don’t know if I should
press charges and it’ll be big because “rape in the [R.] house.”
Courtney: I didn’t even think of that. He needs to know what he did was
wrong. Was protection used? And did you shower before or after? As far as
the [Rs], oh well.
M.W.: I know. I agree but I can’t handle a big thing. I can’t even
remember things because I was so in shock. I’m not sure if he did it [or] not.
And in between.
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{¶ 12} After M.W. told her parents what had happened to her, she was taken to
the hospital, arriving at 3:39 P.M. She was initially examined by an ER doctor, then she
talked to the police detective, and then she was referred to a nurse designated as a “sexual
assault nurse examiner.”1 This nurse interviewed M.W., making notes, Ex. 20, which
recorded the victim’s allegations as follows:
Courtney and I went back to the house that one of the guys was
housesitting for. Me and Mike was taking a tour of the house when he
showed me to the bedroom which was downstairs. Mike kissed me on the
lips and tried to take my shirt off and I said no, I’m not doing that. He
(clarified with patient that he was Mike) kept kissing me over and over again
and I kept yelling at him, telling him to stop. That’s when things went from
bad to worse. Mike pushed me on the bed and I landed on my back. He
kept trying to kiss me and this time pulled off my shirt. He held my hands
down beside me and kissed all over my neck, face and chest. He (clarified
with patient that he is Mike) pulled off my leggings. I kept telling him no, get
off of me, but he didn’t. He had sex with me and stuck his hands inside of
me. I managed to get free and go to the bathroom, and he followed me in
there, grabbing my arms trying to pull me in the shower, asking me to take
a shower with him. When I wouldn’t he got mad and pulled on my arms back
into the bedroom. He raped me again. Clarified with patient that Mike stuck
1
The nurse testified that she had attended a 40-hour class in forensics, but she was not
certified as a sexual assault nurse examiner.
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penis and hands inside of vagina. I kept trying to leave but he wouldn’t let
me. My friend finally came upstairs and got me out of there.
{¶ 13} The medical records also indicate that during the process at the hospital,
the victim’s parents were present, and also present were the victim witness advocate, an
Oakwood police officer and an Oakwood police detective. The medical records confirm
that M.W. was not physically injured during the assault, other than the neck bruising
referred to as hickeys. M.W. testified that since the event, she is no longer a social
person, that she is scared to do anything, and no longer goes anywhere alone.
{¶ 14} The day after the alleged incident, defense counsel advised Hartman to
create a written description of everything about the incident, which was given to police two
days after the incident. Defense counsel accompanied his client to two police interviews.
Hartman freely answered all questions asked during the interviews.
II. The Course of Proceedings
{¶ 15} Hartman was indicted on three counts of Rape, felonies of the first degree,
in violation of R.C. 2907.02(A)(2). About a month after the indictment, the defendant
waived, in writing, his right to a jury trial and elected to have his case heard by the trial
judge, after acknowledging that he had a constitutional right to a trial by jury.
{¶ 16} Pertinent to this appeal, we note that Hartman did not move to dismiss the
indictment, did not request a bill of particulars, and did not file any motions regarding
discovery, until after the trial.
{¶ 17} A two-day trial was had before the trial judge, acting as the trier of fact.
Ten days after the trial, the trial court made the following announcement in open court:
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Good afternoon everyone. We are, of course, present in the case of
State of Ohio v. Hartman, 2014-CR-834. Obviously, we are here for me to
announce the verdicts that I have arrived at in this case, following the
presentation of the evidence during the two day bench trial on September
29th and September 30th.
I realize given the stakes and emotions at issue, that everyone in the
courtroom is on edge, and that includes this judge. This case, given the
circumstances, and the role I was required to play has been very difficult.
It’s been very difficult for me, and I know for all concerned.
I also realized that many of you in this courtroom are going to be
devastated by the verdicts after they are announced, and there’s nothing I
can do about that. This will be of little help to those so devastated. I want
you to know that I considered this matter very, very carefully; and I
approached it with the diligence and the care that it deserves. This being
said, I, of course, had to make decisions and I have arrived at those
decisions and I’m now going to announce those decisions.
Going first to Count I of the indictment, I find, based upon the
evidence presented, the applicable law and my assessment of witness
credibility that the State of Ohio proved beyond a reasonable doubt all the
essential elements of rape as charged in Count 1 of the indictment. The
State, that is, proved beyond a reasonable doubt that on December 31,
2013 and in Montgomery County, Ohio, the Defendant, Mark Hartman
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engaged in sexual conduct, digital penetration with M.W. by purposely
compelling her to submit to such sexual conduct by forced [sic] or threat of
force.
Going into Count II, I find again, based upon the evidence presented,
the applicable law, and my assessment of witness credibility that the State
of Ohio proved beyond a reasonable doubt all of the essential elements of
rape as charged in Count II of the indictment. The State, that is, proved
beyond a reasonable doubt that on December 31, 2013 and in Montgomery
County, Ohio, the Defendant, Mark Hartman engaged in sexual conduct,
vaginal intercourse with M.W. by purposely compelling her to submit to such
sexual conduct by force or threat of force.
And finally, as it relates to Count III of the indictment, I finally find
again, based upon the evidence presented, the applicable law, and my
assessment of witness credibility that the State of Ohio proved beyond a
reasonable doubt all of the essential elements of Count III, of rape as
charged in Count III of the indictment. The State, that is, proved beyond a
reasonable doubt that on December 31, 2013 and in Montgomery County,
Ohio, the Defendant, Mark Hartman engaged in sexual conduct, vaginal
intercourse with M.W. by purposely compelling her to submit to such sexual
conduct by force or threat of force.
{¶ 18} Hartman moved for a new trial, arguing that reasonable doubt existed as
a matter of law because the victim’s testimony was not consistent with the substantive
evidence, that the court should have considered the lesser-included offense of Sexual
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Battery, and that the State of Ohio failed to fully disclose all exculpatory evidence. The
trial court conducted a hearing on the motion for a new trial, and accepted testimony from
Mark Squibb, an employee of the Miami Valley Regional Crime Laboratory, and Detective
Norris from the Oakwood Public Safety Department. During trial, Squibb was qualified
as an expert in the field of DNA analysis. Squibb explained that the police gather evidence
and submit it to the laboratory for testing. Each item or exhibit submitted for testing is given
a submission number and a submittal sheet is filled out by the requesting agency
identifying the item and the type of testing requested. Once submitted it is retained in a
property room that is only accessible by individuals in the DNA section. When it is assigned
to an analyst, that person will remove it from the evidence room, keep it in their care and
custody, perform the testing, and then the item is returned to the law enforcement agency
that supplied the item. The DNA lab retains any samples found to contain DNA.
{¶ 19} Squibb was not the analyst who performed the screening or testing. Squibb
conducted a technical review of the analyst’s work, and testified from the contents of
analyst’s report. He did not inspect the comforter or conduct any part of the extraction or
testing. At the post-trial hearing, Squibb testified that part of his review process was to
review the case notes of the lab technician, but these notes had not been requested or
provided to defense counsel. Emily Draper, who wrote the notes and performed the
testing, did not testify at trial or at the post-trial hearing. The testing generated two
Laboratory Reports, one on the rape kit and one on the comforter. Squibb’s testimony
revealed that the lab’s approach is to first test the most probative evidence to confirm or
deny that sexual activity has taken place, and if that test is positive, the testing on the
remaining swabs are deferred until some action is initiated by someone to do further
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testing. The notes of Emily Draper were interpreted by Squibb to mean that after
Hartman’s DNA was matched with swabs from M.W.’s vagina, the lab did not test swabs
taken from rectal, oral and underwear samples or the comforter. Squibb testified that the
police originally requested testing on both the rape kit and the comforter, but once
Hartman’s DNA was found from the rape kit, they did not test the comforter until a later
time after it was requested again. From the notes he reviewed, Squibb did not know who
made that second request, or when it was made. Squibb testified that they had electronic
records of the original submittal from the law enforcement agency and the subsequent
request that caused the comforter to be tested, but he did not have those records and
could not testify to their content. In response to questions by the trial court, Squibb also
testified that he had personally added highlighting and other markings to the lab report to
assist himself in his testimony.
{¶ 20} The trial court overruled the motion for a new trial, making the following
findings of fact:
Mark Hartman, in the hours before the sexual conduct, consumed a
significant amount of alcohol. M.W. and Mr. Hartman had not met before
the December 30-31 “get together” at the [Rs’] Oakwood home. M.W., in
fact referred to Mr. Hartman as “Mike” in the immediate aftermath of that
which occurred. M.W. had not previously been in the [R] home, and thus,
was not familiar with the home’s layout which, apparently, is rather unique.
M.W. did not know where the remaining occupants of the home were as the
critical events unfolded. M.W., in short, was confronted with the following as
the sexual conduct occurred- a larger, stronger intoxicated individual she
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did not know (and thus, she could not gauge how he might react) with the
events occurring in an unfamiliar home at a time when she did not know the
location of the home’s remaining occupants. The element of force regarding
each rape count must be reviewed with those facts in mind.
REVIEW OF THE RAPE COUNTS
Mark Hartman escorted M.W. to a bedroom within the [R.] home so
that M.W. could go to bed. Mr. Hartman after escorting M.W. to the
bedroom, began kissing M.W. while they were standing near the bedroom
door. M.W. consented to the kissing initiated by Mr. Hartman.
Mr. Hartman, as the kissing continued, placed a hand under M.W.’s
shirt and moved the hand upward toward M.W.’s breasts. M.W. indicated
she did not want this to occur with Mr. Hartman, at this point, removing his
hand from underneath M.W.’s shirt.
Mr. Hartman, at this point, pushed M.W. onto the bed. Mr. Hartman
placed a hand underneath M.W.’s pants. M.W., once again, indicated she
did not want this activity to occur. Mr. Hartman did not withdraw his hand,
but instead told M.W. “it will be okay,” “it will be fine,” and “it will be fun.”
Mr. Hartman, after saying these words, beg[a]n to take off M.W.’s
shirt and bra. M.W., as this was occurring said, “no” but Mr. Hartman,
ignoring M.W.’s protest, completed the removal of the shirt and bra.
Mr.Har[t]man, ignoring M.W.’s indication that she did not want the conduct
to progress, removed his clothes and M.W.’s pants.
M.W., at this point, became frightened and unsure concerning how
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to “handle the situation.” M.W.’s fear was prompted by her recognition she
did not have sufficient strength to overcome Mr. Hartman, with this fear
including the thought that Mr. Hartman, an individual she did not know,
could render her unconscious, and if this occurred, she would not remember
what occurred. M.W. was also concerned because she did not know the
location of the home’s remaining occupants.
Mark Hartman, after removing M.W’s clothing, continued to kiss
M.W. M.W. failed to respond with Mr. Hartman, at this point, kissing each
side of M.W.’s neck. The results of the kissing are depicted by State’s
Exhibits 4-9. Mr. Hartman, additionally, began touching M.W.’s body with
his hands and fingers, such touching included “grabbing” M.W.’s breasts
and touching M.W.’s vagina with this touching including Mr. Hartman’s
digital penetration of M.W.’s vagina. Mark Hartman at this point, initiated
sexual conduct with M.W. by inserting his penis into her vagina. M.W.,
before the penetration occurred, said “no” with Mr. Hartman responding that
it would be “okay”, it would be “fine” and it would be “fun.” The vaginal
penetration continued for a “minute or two.”
Mark Hartman, at this juncture, removed his penis from M.W.’s
vagina. M.W. interpreted this as a “break” because soon thereafter Mark
Hartman began touching M.W. once again with this renewed touching
culminating with Mr. Hartman, for the second time, penetrating his penis
into M.W.’s vagina. This episode continued for a minute or two.
M.W., after the second penis/vaginal penetration terminated,
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decided, with her thought being such activity might create an escape
opportunity, to go into the bathroom connected to the bedroom. Mark
Hartman, however, followed M.W. into the bathroom. Mr. Hartman, after
entering the bathroom, began kissing M.W. Mr. Hartman then pulled M.W.
into the shower and turned on the water. Mr. Hartman once again began
touching M.W.’s breasts and vagina. M.W. began crying, but she placed her
face into the running water to hide this from Mr. Hartman.
M.W. exited the shower and informed Mr. Hartman that she did not
“want this.” M.W. walked back into the bedroom with Mr. Hartman following.
Mr. Hartman, at this time, started to kiss M.W. once again, and while doing
so, pushed M.W. back onto the bed. Mark Hartman, at this point, and for
the third time, penetrated his penis into M.W.’s vagina with this episode
continuing for sixty to ninety seconds.
Mark Hartman, after this last act, rolled off of M.W. M.W., thereafter,
attempted on two occasions to leave the bedroom with each attempt
prompting Mark Hartman’s request that she stay. M.W., fearful of what Mr.
Hartman’s reaction may have been if she refused, stayed until Courtney,
sometime during the morning hours, entered the bedroom. M.W., upon
Courtney’s arrival, quickly exited the [R.] home.
Dkt.# 80, pgs. 7-9.
{¶ 21} Addressing the evidence on the element of force, the trial court concluded:
Mark Hartman, as to Count I, continued his sexual advance upon
M.W. despite her verbal indication that she did not consent to the activity.
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Mr. Hartman pushed M.W. onto the bed, and without her consent, removed
her clothing, used his hands and fingers to touch M.W.’s breasts and
vagina, and finally, penetrated M.W.’s vagina with his penis. The conduct
constitutes force necessary to establish beyond a reasonable doubt the
force element. This conclusion recognizes the force element is, by
necessity, a relative concept, that M.W.’s resistance is not a prerequisite to
the force element, and that the force element must be viewed within the
context of M.W.’s concerns regarding Mr. Hartman’s size and strength
relative to her size and strength, that Mr. Hartman was intoxicated, that she
did not know Mr. Hartman, and that as the sexual conduct was occurring,
she did not know the location of the remaining occupants of the home.
Mark Hartman’s conduct relating to Count 2 must be viewed within
the context of that which had already occurred. Mr. Hartman, having already
ignored M.W.’s entreaties to stop and while he remained on top of M.W.,
once again penetrated M.W.’s vagina with his penis. This conduct,
recognizing the concepts and concerns discussed above, constitutes the
force necessary to establish beyond a reasonable doubt the force element
as to Count 2.
Turning, finally, to Count 3, Mr. Hartman’s conduct must, once again,
be viewed within the context of that which had already occurred. Mr.
Hartman, ignoring a final entreaty to stop, once again began kissing and
touching M.W., pushed her onto the bed, positioned himself on top of M.W.,
and penetrated M.W.’s vagina with his penis. This conduct, again
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recognizing the concepts and concerns already discussed, constitutes force
necessary to establish beyond a reasonable doubt the element of force.
[Fn.] Mr. Hartman’s motion vigorously argues that M.W.’s testimony
that she at certain points “went along” with the sexual activity makes a
finding of force impossible. M.W. testified that on occasion she did “go along
with some of it” with the hope that by doing so Mr. Hartman might conclude
she was “into it” with the thought being that if Mr. Hartman thought she was
“into it” this might create an escape opportunity. M.W., however, was not
“going along” with the sexual activity on the occasions when Mr. Hartman
completed the described penis/vaginal penetration. M.W.’s testimony, when
viewed in its entirety, established the element of force as to each rape
count.
Id., pgs. 10-11.
{¶ 22} Hartman was sentenced to four years of imprisonment for each of the three
counts of Rape, to be served concurrently. Hartman was also designated as a tier three
sexual offender, requiring lifetime registration requirements, pursuant to Chapter 2950 of
the Revised Code. Hartman appeals from his conviction and sentence.
III. The Convictions Are Supported By Sufficient Evidence
{¶ 23} Hartman’s First Assignment of Error asserts as follows:
THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUSTAIN THE CONVICTIONS.
{¶ 24} Hartman was indicted for three counts of Rape, in violation of R.C.
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2907.02(A)(2). Under this section, to obtain a conviction for Rape, the State must prove
beyond a reasonable doubt that the accused engaged in sexual conduct with another by
purposely compelling the other person to submit to the sexual conduct by force or threat
of force. Hartman has admitted that he engaged in sexual conduct with another. The
question is whether sufficient evidence was presented to prove beyond a reasonable
doubt that he purposely compelled M.W. to submit to the sexual conduct by force or threat
of force.
{¶ 25} A challenge to the sufficiency of the evidence presents a question of law as
to whether the State has presented adequate evidence on all elements of the offense to
sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741
N.E.2d 594 (2d Dist.2000). “An appellate court's function when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt. 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. Jackson, 2d Dist. Montgomery No. 26050, 2015-Ohio-5490, ¶ 41, quoting State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 26} Pursuant to R.C. 2901.22 (A), “[a] person acts purposely when it is the
person's specific intention to cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender's specific intention to engage in conduct of that
nature.” Therefore, in a Rape case, to prove that the defendant acted “purposely,” the
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State must prove that it was the defendant’s intention to engage in sexual conduct by
forcefully compelling the other person to submit to the sexual conduct. “A rape occurs
only if the perpetrator purposely compels the other to submit by force or threat of force.”
State v. Wilkins, 64 Ohio St.2d 382, 385, 415 N.E.2d 303 (1980).
{¶ 27} Ohio’s rape statute does not require proof of the victim’s lack of consent.
Ohio law does recognize certain victims incapable of giving consent, based on mental or
physical incapacity. Those exceptions do not apply in the case before us. See, e.g., State
v. Hillock, 7th Dist. Harrison No. 02-CA-538, 2002-Ohio-6897. Consent is not an
affirmative defense, but when applicable, consent is used as a defense to challenge the
State’s evidence on the element of purposeful force or compulsion. State v. El-Berri, 8th
Dist. Cuyahoga No. 89477, 2008-Ohio-3539, ¶ 57. When consent is raised as a defense
to a charge of Rape, the test of whether consent negates a finding of force is not whether
a reasonable person confronted with similar circumstances would have understood that
the victim did not consent, the test requires the trier-of-fact to find, beyond reasonable
doubt, that the specific defendant’s purpose or intent was to commit the crime of rape.
State v. Mundy, 99 Ohio App.3d 275, 650 N.E. 2d 502 (2d Dist. 1994). As we discussed
in Mundy:
The determination of a defendant's mental state, absent some
comment on his or her part, must of necessity be determined by the nature
of the act when viewed in conjunction with the surrounding facts and
circumstances. State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d
293, 302. This is, in fact, the well-recognized process of inferential
reasoning. This process by necessity incorporates an objective mechanism
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or standard in determining the defendant's state of mind by the use of
circumstantial evidence. The trier of fact reviews the defendant's conduct in
light of the surrounding facts and circumstances and infers a purpose or
motive.
Id., 99 Ohio App.3d at 288, 650 N.E.2d 502.
{¶ 28} R.C. 2901.01(A)(1) defines “force” as any “violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” In the
case before us, the trial court did not find that Hartman used physical constraint or any
form of violence that caused physical harm during the sexual encounter. The trial court did
not find that Hartman constrained the victim in any way or that the victim exhibited physical
resistance to Hartman’s advances. However, the trial court did find that Hartman
“pushed” M.W. onto the bed, removed her clothes, laid on top of her, and pulled her into
the shower. It has been recognized that proof of physical violence or physical resistance
is not required to establish Rape if the defendant creates in the mind of the victim the belief
that physical force will be used if the victim does not submit. State v. Umphries, 4th Dist.
Ross No. 11CA3301, 2012-Ohio-4711, ¶ 21, and ¶ 16, citing State v. Schaim, 65 Ohio St.
3d 51, 55, 600 N.E. 2d 661 (1992). “The force and violence necessary to commit the
crime of rape depends upon the age, size and strength of the parties and their relation to
each other.” State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988). “Force need not
be overt and physically brutal, but can be subtle and psychological. As long as it can be
shown that the rape victim's will was overcome by fear or duress, the forcible element of
rape can be established.” Umphries at ¶16, quoting State v. Fowler, 27 Ohio App.3d 149,
154, 500 N.E .2d 390 (8th Dist. 1985).
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{¶ 29} In the case before us, the victim testified that her will was overcome by fear,
because she believed she would be hurt if she did not submit to Hartman’s advances. To
find that her will was overcome by fear, the trier-of-fact must have sufficient evidence from
which to infer that her fear was based on some wrongful action or conduct of the defendant
that purposely compelled her to submit to the sexual conduct, against her will. In the case
before us, the trial court stated, “that the force element must be viewed within the context
of M.W.’s concerns regarding Mr. Hartman’s size and strength, that Mr. Hartman was
intoxicated, that she did not know Mr. Hartman, and that, as the sexual conduct was
occurring, she did not know the location of the remaining occupants of the house.” Dkt.
#80, pg. 10.
{¶ 30} Hartman testified that he is 6’3”, weighed 200 pounds, and was physically
fit. Medical records reflected that M.W. is 5’3” and weighed 165 pounds. Hartman and
M.W. were both 20 years old, and both were college students. The victim testified that she
was scared because she was not as strong as Hartman, and she believed that he would
use his superior strength to hurt her if she did not submit to his sexual advances. The
victim testified that she repeatedly said “No” to Hartman during the sexual encounter. The
physical force described by the victim included her testimony that Hartman “pushed” her
onto the bed, removed her clothing, laid on top of her, and “pulled” her into the shower.
{¶ 31} Each of the cases cited by the State addressing the issue of force is
distinguishable from the case before us. In Umphries, the victim felt compelled to submit
out of fear when she awoke during the night to find her uncle on top of her, who had broken
into the house through a window, and she begged him to stop. State v. Umphries, 4th Dist.
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Ross No. 11CA3301, 2012-Ohio-4711. There was no admission that the victim in
Umphries was a willing participant to any part of the encounter, and she communicated
her fear by begging him to stop. Id. The victims in Whitt, Shannon, and Eskridge were
minors. State v. Whitt, 8th Dist. Cuyahoga No. 82293, 2003-Ohio-5934; State v. Shannon,
11th Dist. Lake Nos. 2002-L-007, 2002-L-008, 2004-Ohio-1669; State v. Eskridge, 38 Ohio
St.3d 56, 526 N.E.2d 304 (1988). In State v. Patel, we found sufficient evidence of force
when an employer held his employee “in a locked bathroom and inserted his finger in her
vagina against her will and while ignoring her plea to stop.” State v. Patel, 2d Dist.
Greene No. 2010CA77, 2011-Ohio-6329, ¶ 63. Unlike in the case before us, the
defendant in Patel locked the room to prevent the victim from leaving, and no part of the
sexual encounter was consensual. Id. None of the cited cases present a fact pattern in
which a sexual encounter between adults starts out as consensual, before changing into
a non-consensual encounter.
{¶ 32} We agree that the elements of Rape can be established when the two
participants start the sexual encounter on a consensual basis, but the consent is revoked
by words, actions or conduct that clearly communicates non-consent, the defendant fails
to respect the change in consent, and purposely proceeds to engage in sexual conduct
through force or threat of force evidenced by violence, physical restraint, or some type of
coercive or threatening conduct that creates a belief or fear that physical force will be used
if the victim does not consent. In the case before us, both the defendant’s physique -- he
was bigger and stronger than his victim -- and his conduct of pushing the victim on the
bed, removing her clothes, and pulling her into the shower, was evidence from which a
reasonable finder of fact could find that he purposely acted in a manner that induced fear
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in the victim, compelling her to submit to his sexual conduct, against her will.
{¶ 33} Based on our review of the record, we conclude that the State did present
sufficient evidence from which the trier of fact could conclude that Hartman purposely
compelled M.W. to submit to sexual conduct by force or threat of force. There is no
dispute that it was Hartman’s intention to engage in sexual conduct with M.W. Also, the
testimony of the victim, if believed, supports a finding that Hartman used force to compel
M.W. to submit to sexual conduct at least three times during the course of the evening.
Hartman’s First Assignment of Error is overruled.
IV. Overruling the Motion for a New Trial Was Not an Abuse of Discretion
{¶ 34} Hartman’s Second Assignment of Error asserts:
THE COURT ERRED WHEN IT DENIED HARTMAN’S MOTION
FOR A NEW TRIAL
{¶ 35} Pursuant to Crim. R. 33(A)(4), a new trial may be granted “if the verdict is
not sustained by sufficient evidence or is contrary to law.” The decision whether to grant
a motion for a new trial lies within the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of that discretion. State v. Hayden, 2d Dist.
Montgomery No. 26524, 2015-Ohio-3262, ¶ 30, citing State v. Schiebel, 55 Ohio St.3d
71, 564 N.E.2d 54 (1990). An “abuse of discretion” implies an arbitrary, unreasonable,
or unconscionable attitude on the part of the court. State v. Ulery, 2d Dist. Clark No. 2010-
CA-89, 2011-Ohio-4549, ¶ 9, citing State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144(1980). “A decision is unreasonable if there is no sound reasoning process that would
support that decision. It is not enough that the reviewing court, were it deciding the issue
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de novo, would not have found that reasoning process to be persuasive, perhaps in view
of countervailing reasoning processes that would support a contrary result.” State v. Rossi,
2d Dist. Montgomery No. 24740, 2012-Ohio-2545, ¶ 12, citing AAAA Enterprises, Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d
597 (1990).
{¶ 36} Hartman asserts three separate arguments related to alleged errors in the
trial court’s denial of his motion for his new trial. The first two arguments are both
concerned with the evidence utilized by the trial court to conclude that the element of force
was established by proof of the victim’s subjective thoughts and concerns instead of the
defendant’s conduct. As discussed above, lack of consent is not an element to prove the
offense of Rape, but it is a relevant factor in determining whether force was used to compel
the victim to submit to the sexual conduct against her will. In the decision denying the
motion for a new trial, the trial court did not rely solely on the victim’s conduct, thoughts or
subjective point of view in concluding that Hartman’s conduct was sufficient to induce the
victim’s fear. The trial court looked at the totality of the circumstances, including the relative
size and strength of the defendant and his victim, Hartman’s physical contact with the
victim when he pushed and pulled her, removed her clothes and laid on top of her, his
conduct in ignoring the victim’s repeated verbal statements of “No,” the victim’s
unfamiliarity with her surroundings, and the victim’s reaction to her fears. The trial court,
as the trier of fact, could reasonably infer from the totality of the circumstances, and from
the victim’s testimony, that she was too scared to resist, and that Hartman compelled her
to submit to his sexual conduct against her will.
{¶ 37} Hartman also argues that the trial court’s decision denying the motion for a
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new trial erroneously concluded that three separate instances of rape occurred by penile
penetration, which conflicted with the trial court’s earlier pronouncement that the
convictions were based on one instance of digital penetration and two instances of penile
penetration. Hartman argues that the trial court’s revision of the type of sexual conduct
proven to establish the three charges of Rape shows that the evidence was insufficient to
support the convictions, and that the trial court therefore abused its discretion by denying
the motion for a new trial. As noted earlier, the record does support the conclusion that
the State presented sufficient evidence to allow the trier of fact to find, beyond a
reasonable doubt, that Hartman committed three offenses of Rape. Accordingly, the trial
court did not err by overruling the motion for a new trial, notwithstanding possible confusion
by the trial court, in ruling on the motion, as to the particular offenses comprising the three
Rape convictions. Hartman’s Second Assignment of Error is overruled.
V. The Convictions Are Not Against the Manifest Weight of the Evidence
{¶ 38} For his Third Assignment of Error, Hartman asserts:
HARTMAN’S CONVICTION IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 39} In determining whether a verdict is against the manifest weight of the
evidence, we are required to review the entire record, to weigh the evidence and all
reasonable inferences, and to consider the credibility of the witnesses. State v. Jackson,
2d Dist. Montgomery No. 26050, 2015-Ohio-5490, ¶ 48, citing State v. Hancock, 108 Ohio
St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 39. In determining whether a verdict is
against the manifest weight of the evidence, the appellate court acts as a “thirteenth juror.”
-27-
Id. at ¶ 49, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
“Under this standard of review, the appellate court weighs the evidence in order to
determine whether the trier-of-fact ‘clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” Id.{¶ 40} Unlike the sufficiency-of-evidence standard of review, a reviewing court
does not construe the evidence most strongly in favor of the prosecution when using a
manifest-weight standard of review. State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-
3395, 813 N.E. 2d 964 (2d Dist.). A manifest-weight-of-the-evidence argument questions
the believability of the evidence and asks a reviewing court to determine which of the
competing inferences is more believable. Id. “However, the appellate court may not
substitute its judgment for that of the trier-of-fact on the issue of the credibility of the
witnesses unless it is patently apparent that the factfinder lost its way.” Id. at ¶ 81, citing
State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997).
{¶ 41} In State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684(August 22, 1997), we explained:
[B]ecause the factfinder ... has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of
appeals to find that a judgment is against the manifest weight of the
evidence requires that substantial deference be extended to the factfinder's
determinations of credibility. The decision whether, and to what extent, to
credit the testimony of particular witnesses is within the peculiar
competence of the factfinder, who has seen and heard the witness.
{¶ 42} In the case before us, we must give substantial deference to the trial judge,
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who acted as the trier of fact, and who had the opportunity to see and hear the witnesses
in judging their credibility. We find nothing in the record from which to conclude that the
trial judge patently lost his way in finding the victim to be a more credible witness than the
defendant. Although both the victim and the defendant were drinking alcohol prior to the
sexual encounter, which may have affected their memory of the event, we do not find
sufficient indicia of untruthfulness in the victim’s recollection of the events, or the other
witnesses who supported her testimony, that would require the trier of fact to find that her
testimony lacked credibility. “The trier of fact is better situated than an appellate court to
view witnesses and to observe their demeanor, gestures, voice inflections and to use
those observations in weighing credibility.” State v. Jackson, 2d Dist. Montgomery No.
26050, 2015-Ohio-5490, ¶ 50, citing State v. Lewis, 4th Dist. Scioto No. 01CA2787, 2002
WL 368625 (Feb. 25, 2002). Hartman argues that the victim’s trial testimony and the
statements she made the day after the incident contain several inconsistencies and
admissions that should destroy her credibility. Hartman argues that the victim made an
admission of her lack of recall in a text to her friend, which stated, “I can’t even remember
things because I was so in shock. I’m not sure if he did it [or] not. And in between.” The
State suggests that this comment was made in reference to her memory of whether
Hartman was using a condom, or whether he completed the act of sexual intercourse. “A
trier of fact is free to believe all, part or none of the testimony of each witness.” Id., citing
State v. Long, 127 Ohio App.3d 328, 713 N.E.2d 1 (4th Dist.1998). In the case before
us, the trier of fact was in the best position to judge the victim’s credibility on the version
of the facts she gave from the witness stand at the time of trial.
{¶ 43} The outcome of this case rested on the credibility of the witnesses.
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Respecting the trial court’s judgment on credibility, we conclude that the convictions are
not against the manifest weight of the evidence. This is not the exceptional case in which
the finder of fact lost its way. Hartman’s Third Assignment of Error is overruled.
VI. Ineffective Assistance of Counsel
{¶ 44} In all of the following assignments of error, Hartman alleges that he was
denied the effective assistance of counsel:
IV. COUNSEL WAS INEFFECTIVE WHEN HE ADVISED
HARTMAN TO GIVE THE POLICE A WRITTEN STATEMENT AND TO
SUBMIT TO TWO ROUNDS OF QUESTIONING
V. TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED
TO MOVE TO DISMISS THE INDICTMENT
VI. TRIAL COUNSEL WERE INEFFECTIVE WHEN THEY FAILED
TO REQUEST A BILL OF PARTICULARS
VII. TRIAL COUNSEL WERE INEFFECTIVE IN CROSS-
EXAMINATION WHEN THEY INTRODUCED EVIDENCE ON ELEMENTS
THE STATE HAD FAILED TO PROVE, HEARSAY, AND OTHERWISE
INADMISSIBLE EVIDENCE
VIII. DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY
FAILED TO OBJECT TO HEARSAY INTRODUCED BY THE STATE
IX. COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO
INVESTIGATE THE CASE
{¶ 45} In order to prevail on a claim of ineffective assistance of counsel, a defendant
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must show both deficient performance and resulting prejudice. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Two
elements must be demonstrated: 1) that counsel's representation fell below an objective
standard of reasonableness; and 2) that counsel's errors were serious enough to create a
reasonable probability that, but for the errors, the outcome of the proceeding would have
been different. Id. In our review of an ineffective assistance of counsel claim, “we will not
second-guess trial strategy decisions, and ‘a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.’ ”
State v. English, 2d Dist. Montgomery No. 26337, 2015-Ohio-1665, ¶ 10, quoting State v.
Mason, 82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998).
{¶ 46} Hartman argues six different grounds for establishing that he was denied
the effective assistance of counsel guaranteed by the Sixth Amendment. Hartman claims
that his counsel was ineffective when he was directed to provide a written statement to
the police, and to cooperate fully in a police interrogation. In hindsight, Hartman is able to
identify that this strategy of his defense counsel to fully cooperate with the investigation
against him caused difficulty in defending inconsistent statements that may have impacted
his credibility at trial. “Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel.” State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 37
(2d Dist.), citing Strickland, supra; State v. Parker, 2d Dist. Montgomery No. 19486, 2003-
Ohio-4326, ¶ 13. Throughout the trial, it is apparent that the defense strategy was to
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prove that the victim consented to the sexual conduct, and that Hartman did not purposely
force her to submit to the sexual conduct. Both his written statement and the statements
Hartman made to the police consistently asserted that the victim had consented to the
sexual encounter. Hartman and M.W. are the only two witnesses to the sexual conduct,
which would inevitably lead to a question of which witness to believe. It was reasonable,
in light of counsel’s perspective at the time, to pursue a strategy not to let the victim’s
version of events go unanswered in the investigative stage. We conclude that counsel’s
strategy of cooperation with the police investigation, under the circumstances of this case,
did not constitute ineffective assistance of counsel.
{¶ 47} We also conclude that Hartman was not denied the assistance of effective
counsel when defense counsel failed to file a motion to dismiss the indictment. The
indictment charging Hartman with three counts of Rape did contain all the elements of the
offenses set forth in the Rape statute, R.C. 2907.02(A)(2). Although the indictment did not
include the name of the victim and the nature of the sexual conduct, the name of the
alleged victim was never in question, and the nature of the sexual conduct would have
been available to defense counsel by moving for a bill of particulars. While it may be
argued, again from hindsight, that defense counsel should have moved for a bill of
particulars, Hartman has not established that he was prejudiced by counsel’s failure to do
so. In his written statement, and in his trial testimony, Hartman admitted engaging in a
sexual encounter that included digital penetration, vaginal, anal and oral intercourse with
M.W., so disputing that sexual conduct occurred was not part of his defense. To establish
that he was prejudiced, Hartman would need to establish that but for counsel’s failure to
move for a bill of particulars, there is a reasonable probability that the outcome of the
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proceeding would have been different. As discussed above, the guilty verdicts in this
case resulted from the trier of fact’s decision to find the victim’s testimony to be more
credible. Under these circumstances, we conclude that the details provided by a bill of
particulars would not have resulted in a reasonable probability of a different outcome.
{¶ 48} We agree with Hartman’s assertion that defense counsel, on cross-
examination of the victim, brought up factual matters not presented during the direct
examination of the victim that may have helped the State prove the element of force.
Specifically, the record reveals that defense counsel asked the victim to confirm that
Hartman was “restraining” her, Trial Transcript at 74-75, that Hartman pinned her arms
down, Trial Transcript at 75-76, that Hartman held his forearm across her chest, Hartman
grabbed her wrists, grabbed her arm, and “was doing that forcefully,” Trial Transcript at
80-81. We have held that “trial counsel's decision to cross-examine a witness and the
extent of such cross-examination are tactical matters.” State v. Russell, 2d Dist.
Montgomery No. 21458, 2007-Ohio-137, ¶ 55. “A reviewing court may not second-guess
decisions of counsel which can be considered matters of trial strategy.” State v. Conley,
2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Smith, 17 Ohio St.3d 98,
477 N.E.2d 1128 (1985). “Debatable strategic and tactical decisions may not form the
basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a
better strategy had been available.” Id., citing State v. Cook, 65 Ohio St.3d 516, 524, 605
N.E.2d 70 (1992). Because it was at least arguable that the State had presented
sufficient evidence of force relating to at least one of the Rape counts – the last one
occurring on the bed – trial counsel could reasonably have concluded that it would not be
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safe to eschew cross-examination on the element of force.2
{¶ 49} It appears that the strategy of defense counsel asking the victim about facts
relevant to the issue of force was an attempt to attack her credibility based on different
versions of the events she provided to the sexual assault nurse, to the detective, and
during direct examination at trial. In a case that rests entirely on the credibility of the
witnesses, a strategic choice to conduct cross-examination of the victim on factual issues
relating to elements of the offense is not automatically ineffective assistance of counsel.
In the case before us, it was a valid defense strategy to attack the credibility of the victim
through the use of prior inconsistent statements, a well-established trial strategy. See Evid.
R. 613. We conclude that Hartman was not denied the effective assistance of counsel
when reasonable trial strategy was utilized to challenge the victim’s credibility through a
cross-examination technique of raising inconsistent statements.
{¶ 50} Hartman also argues that his counsel was ineffective based on his failure to
object to inadmissible hearsay from the testimony of the victim’s friend, Courtney, the
sexual assault nurse, and the detective who interviewed the victim at the hospital. With
respect to the victim’s friend, Courtney, Hartman claims that his counsel should have
objected to inadmissible testimony regarding the character of the victim, including her
demeanor immediately after the incident, and to specific statements made by the victim
the following morning. While opinions elicited to prove that a victim is being truthful are
generally inadmissible, a distinction has been made for testimony “which is additional
support for the truth of the facts testified to by the [victim], or which assists the fact finder
2In fact, since the three Rape sentences were ordered to be served concurrently,
acquittal on two of the Rape charges would have amounted to a Pyrrhic victory.
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in assessing the [victim’s] veracity.” State v. Sedgmer, 7th Dist. Harrison No. 00 522 CA,
2002-Ohio-1527, ¶ 23, citing State v. Stowers, 81 Ohio St. 3d 260, 690 N.E. 2d 881 (1998).
In the case before us, defense counsel did not err by failing to object to testimony that was
admissible to assist the trier-of-fact in assessing the victim’s veracity.
{¶ 51} With respect to the sexual assault nurse, Hartman argues that counsel’s
failure to object to the nurse’s inadmissible hearsay was prejudicial. The hospital’s
designated sexual assault nurse did testify as to statements made by the victim, after the
victim had been examined by an ER doctor, so that at the time of the interview a medical
diagnosis had already been completed. The nurse testified that her examination of the
victim was to look for injury that could be consistent with force. Trial Transcript at 177-178.
In response to the victim’s statements, the sexual assault nurse took samples of the
victim’s DNA in order to complete a rape kit, which was to assist law enforcement, not for
medical diagnosis. Ohio licensing law limits a registered nurse’s role to assessing the
patient for the purpose of providing nursing care, and a nursing diagnosis is limited to
“identification of a patient’s needs or problems which are amenable to nursing
intervention.” R.C. 4723.01; O.A.C. 4723-4-01. The victim’s statements to a nurse about
the cause and origin of the injury is inadmissible hearsay, unless “the inception or general
character of the cause of external source thereof is reasonably pertinent to diagnosis or
treatment.” Evid. R. 803(4). The only statements made to a nurse by a victim that are
admissible under Evid. R. 803(4) are statements made for the purpose of nursing
diagnosis or treatment. Therefore, a nurse’s testimony concerning statements made by a
rape victim, recorded by the nurse for the purpose of assisting a criminal investigation,
and not for nursing treatment or diagnosis, is inadmissible hearsay.
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{¶ 52} In the case before us, the nurse did not testify that the victim had any injuries
requiring nursing treatment, or that she provided treatment. Even though defense
counsel failed to object to the nurse’s testimony or the admission of the nurse’s report, Ex.
20, we conclude that this was not sufficiently prejudicial to have affected the outcome of
the trial. The verdicts rested on the credibility of the victim, and no part of the nurse’s
testimony was essential to the trier of fact’s finding that all elements of the offense of Rape
had been established through the victim’s testimony. Therefore, we conclude that Hartman
was not denied effective assistance of counsel by counsel’s failure to object to the nurse’s
testimony.
{¶ 53} Hartman also argues that his counsel was ineffective by having failed to
object to the hearsay evidence admitted through the testimony of the detective. The State
concedes that it was hearsay when the detective testified regarding the statements made
during his interview of the victim. The State does not argue that these statements were
admissible through any exception to the hearsay rule, such as an excited utterance
allowed by Evid. R. 803(2), or a present-sense impression under Evid. R. 803(1). The
only question under this assignment of error is whether the admission of this hearsay was
prejudicial. This question must be viewed in the same manner discussed above
regarding the defense strategy to cross-examine the victim regarding prior inconsistent
statements, which included the statements she made to the detective. As we have already
concluded, it was a reasonable defense strategy to allow the admission of the victim’s
various statements of the incident in order to challenge the victim’s credibility by pointing
out inconsistencies in these pre-trial statements with her testimony at trial. We conclude
that Hartman was not denied effective assistance of counsel as a result of counsel’s
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strategic decision not to object to the detective’s testimony in order to allow the admission
of inconsistent statements by the victim.
{¶ 54} Hartman also argues that counsel was ineffective as a result of counsel’s
failure to investigate the case. Hartman claims that prior to trial his counsel failed to
interview the victim’s friend, Courtney, and the lab witness, Squibb. Hartman also claims
that his counsel was ineffective as a result of counsel’s failure to seek discovery of the
notes of the forensic analyst who actually conducted the DNA tests, Emily Draper, or to
obtain the video recordings of Hartman’s police interviews. We agree that defense counsel
has an obligation to conduct a reasonable pre-trial investigation sufficient to develop
appropriate defense strategies. State v. Ayers, 5th Dist. Licking No. 98 CA 53, 1999 WL
3976 (Nov. 25, 1998), citing State v. Johnson, 24 Ohio St. 3d 87, 494 N.E.2d 1061 (1986),
and 1 A.B.A. Standard for Criminal Justice (1982 Supp.), No. 4-4.1. The defense strategy
in this case was focused on defeating the State’s claim that Hartman purposely forced
M.W. to submit to sexual conduct. This strategy necessitated an attack on the victim’s
credibility, and evidence to bolster Hartman’s credibility. As discussed above, Courtney’s
testimony was offered to support the victim’s credibility. Therefore, defense counsel’s
investigation should have included an interview with Courtney to develop a reasonable
defense strategy to discredit her testimony. Notwithstanding the failure to interview
Courtney, defense counsel did make appropriate objections during her testimony to
challenge the admissibility of hearsay and the admissibility of Courtney’s observations of
the victim’s demeanor after the incident to bolster the victim’s credibility. We conclude that
the failure to interview Courtney before trial was not sufficiently prejudicial to warrant
reversal.
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{¶ 55} The failure to conduct a pretrial interview of Squibb did not amount to
ineffective assistance of counsel. Since defense counsel had no advance notice that
Squibb would be called to testify instead of Draper, the analyst who actually conducted
the DNA tests, it cannot be concluded that counsel failed in the duty to conduct a pre-trial
interview of an unnamed witness. In pre-trial discovery, defense counsel was provided
with the lab report prepared by Draper, but failed to seek any additional documents from
the lab, including Draper’s lab notes, which could have helped counsel prepare an
effective cross-examination to challenge the procedures followed by the lab. The
potential for challenging the lab procedure was fully explored in the post-trial hearing on
the motion for a new trial, but did not result in any evidence that would have supported the
reasonable probability of a different outcome in the trial. Therefore, the failure to seek
discovery of Draper’s lab report notes was not shown to be prejudicial.
{¶ 56} Hartman also claims that defense counsel’s failure to review the sexual
assault evidence kit caused surprise during the trial -- that the kit contained untested
samples of fingernail scrapings and DNA from the victim’s mouth. However, Hartman has
not established how this additional discovery would have helped his defense. Additional
DNA testing was not necessary to establish that it was Hartman who participated in the
sexual encounter with M.W., which Hartman admitted when he first gave a statement to
police, and never thereafter disputed. Hartman has not shown that additional testing
would assist in his defense that M.W. consented to the sexual encounter. We conclude
that Hartman has not established that he was prejudiced by his counsel’s failure to pursue
additional discovery from the rape kit.
{¶ 57} We also conclude that Hartman has not shown prejudice by his counsel’s
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failure to obtain a copy of the video recorded interrogations with the detective from the
Oakwood Police Department. Defense counsel was present with Hartman at the time of
the interviews, which should have adequately prepared counsel for making strategic plans
to cross-examine the detective, and to prepare Hartman for potential cross-examination
during his trial testimony. Hartman has not established how discovery of the video
recordings would have led to a different outcome at trial.
{¶ 58} Hartman’s Fourth through Ninth Assignments of Error are overruled.
VI. Cumulative Effect of Counsel’s Errors
{¶ 59} For his Tenth Assignment of Error, Hartman asserts:
THE CUMULATIVE EFFECT OF COUNSEL’S ERRORS DENIED
HARTMAN A FAIR TRIAL AND RENDERED THEIR ASSISTANCE
INEFFECTIVE
{¶ 60} The Supreme Court of Ohio in State v. DeMarco, 31 Ohio St.3d 191, 509
N.E.2d 1256 (1987), paragraph two of the syllabus, recognized the doctrine of cumulative
error. Under this doctrine, a conviction will be reversed when the cumulative effect of errors
in a trial deprives a defendant of a fair trial even though each of the numerous instances
of trial court error does not individually constitute cause for reversal. Id. at 196-197. See
also State v. Jackson, 141 Ohio St.3d 171, 2014–Ohio–3707, 23 N.E.3d 1023, ¶ 258;
State v. McGail, 2d Dist. Miami No. 2014-CA-27, 2015-Ohio-5384, ¶ 81; State v. Royster,
2d Dist. Montgomery No. 25870, 2015-Ohio-3608, ¶ 56.
{¶ 61} The Supreme Court of Ohio has recognized that multiple errors, when
aggregated, may violate a defendant's right to a fair trial, even when those errors are
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determined to be harmless when separately considered. State v. Madrigal, 87 Ohio St.3d
378, 397, 721 N.E.2d 52 (2000). To find cumulative error, we first must find multiple errors
committed at trial, and secondly, we must conclude that a reasonable probability exists
that the outcome of the trial would have been different but for the combination of the
harmless errors. Id. at 398. See also State v. Zimpfer, 2d Dist. Montgomery No. 26062,
2014-Ohio-4401, citing State v. Thomas, 2d Dist. Clark No. 2000-CA-43, 2001 WL
1103328 (Sept. 21, 2001).
{¶ 62} Based upon our above discussion of the alleged instances of ineffective
assistance of counsel, we conclude that the instances of arguably ineffective assistance
of counsel, even when considered cumulatively, do not give rise to a reasonable
probability of a different result, had they not occurred. Hartman’s Tenth Assignment of
Error is overruled.
VII. The Indictment Was Sufficient
{¶ 63} For his Eleventh Assignment of Error, Hartman asserts:
THE INDICTMENT IS CONSTITUTIONALLY INSUFFICIENT
{¶ 64} For each of the three charges of rape, the indictment states:
Mark Hartman, on or about December 31, 2013 in the County of
Montgomery, aforesaid and the State of Ohio, did engage in sexual conduct
with another, by purposely compelling the other person to submit by force
or threat of force; contrary to the form of the statute (in violation of Section
2907.02(A)(2) of the Ohio Revised Code) in such case made and provided,
and against the peace and dignity of the State of Ohio.
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{¶ 65} The language of the indictment charging Hartman with three counts of Rape
does contain all the elements of the Rape statute, R.C. 2907.02(A)(2). The Supreme Court
of Ohio has held that “[a]n indictment meets constitutional requirements if it ‘first, contains
the elements of the offense charged and fairly informs a defendant of the charge against
which he must defend, and, second, enables him to plead an acquittal or conviction in bar
of future prosecutions for the same offense.’ ” State v. Childs, 88 Ohio St.3d 558, 565, 728
N.E.2d 379 (2000), quoting Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41
L.Ed.2d 590 (1974). In Childs, the Court recognized that an indictment is generally
acceptable if citing the actual language of the statute, unless it inadequately notifies the
defendant of the charge and the severity of the penalty. More recently, in State v. Jackson,
134 Ohio St.3d 184, 2012-Ohio-5561, 980 N.E.2d 1032, the Supreme Court of Ohio
confirmed this holding and found that a charge for aggravated trafficking was sufficient,
without listing the specific drug involved, as long as the indictment identified the statutory
schedule, I through V, in which the drug was listed as it made a difference to the severity
of the penalty. Id. at ¶ 21. Hartman alleges that the indictment is insufficient because it
does not identify the name of the victim, and does not identify the nature of the sexual
conduct for each of the three charges. Hartman argues that without these specifics, the
indictment fails to adequately notify him of the charges against him, and subjects him to
the possibility of additional charges, which would impair his protection from a potential
Double Jeopardy violation.
{¶ 66} The Supreme Court of Ohio has held that when an objection to an indictment
is not raised prior to trial as required by Crim. R. 12(C)(2), it is waived, unless it constitutes
plain error. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 26,
-41-
citing State v. Frazier, 73 Ohio St.3d 323, 332, 652 N.E.2d 1000 (1995). According to
Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Plain error is not found unless it can
be concluded that but for the error, the outcome of the trial would have been different.
State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E. 2d 1043 (1996). Notice of plain error
“is to be taken with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Haney, 12th Dist. Clermont No.
CA2005-07-068, 2006-Ohio-3899, ¶ 50, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.
2d 804 (1978), paragraph three of the syllabus.
{¶ 67} As we concluded above, since the name of the victim was undisputed,
Hartman was not harmed by the failure to identify the name of the victim in the indictment.
We have held that the indictment in a rape case with multiple counts “was sufficient
because it paralleled the language of the statutes, including every element of each charge.
Because the nature of the sexual acts had no bearing on the identity or severity of the
offenses, the specific acts were not essential elements of the crimes and therefore were
not required to be set forth in the indictment.” State v. Shaw, 2d Dist. Montgomery No.
21880, 2008-Ohio-1317, ¶ 20.
{¶ 68} Although the failure to identify the nature of the sexual conduct, in this case,
does not affect the severity of the penalty for Rape, it does raise potential Double Jeopardy
concerns. For example, Hartman admitted that he engaged in both oral and anal
intercourse with the victim, but the State did not attempt to prosecute either of these
potential offenses in the present case. In closing arguments, the State argued that the
first count of Rape was supported by evidence of digital penetration, and the second and
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third counts were supported by evidence of penile penetration. Trial Transcript at 494.
However, in the entry overruling the motion for a new trial, the trial court stated that all
three counts were proven by penile penetration. Under the facts of this case, without
identifying the specific sexual conduct in the language of the indictment, the State might
consider pursuing a second prosecution for the digital penetration or the oral or anal
intercourse. As we concluded in Shaw, supra, the failure of the indictment to notify the
defendant of the nature of the sexual conduct upon which each of his convictions were
based prevents a retrial for any of the potential offenses that occurred during the same
time span covered by the indictment. Id. at ¶ 25. As addressed by the Supreme Court of
Ohio in State v. Anderson, 138 Ohio St. 3d 264, 2014-Ohio-542, 6 N.E. 3d 23, ¶ 59, the
proper time for raising a Double Jeopardy violation is after a second indictment is issued
and a motion to dismiss the indictment is decided. We cannot find that the potential for a
future Double Jeopardy problem is grounds for reversal of a conviction that does not
involve a current Double Jeopardy violation. In other words, we cannot conclude that but
for the defective indictment error, the outcome of this trial would have been different. We
conclude that failure to object to the indictment prior to trial, in accordance with Crim. Rule
12, waived this error on appeal. Consequently, Hartman’s Eleventh Assignment of Error
is overruled.
VIII. Admission of Evidence to Establish Demeanor
Was Not an Abuse of Discretion
{¶ 69} For his Twelfth Assignment of Error, Hartman asserts:
THE TRIAL COURT ERRED WHEN IT ADMITTED AND RELIED
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ON IRRELEVANT AND INADMISSIBLE DEMEANOR-AFTER-THE-FACT
EVIDENCE
{¶ 70} The Supreme Court of Ohio has held that the admission or exclusion of
evidence is within the sound discretion of the trial court and that, unless the trial court
clearly abused its discretion and a party was materially prejudiced as a result, reviewing
courts should be slow to interfere. State v. Byrd, 2d Dist. Montgomery No. 25842, 2014-
Ohio-2553, ¶ 26, citing State v. Hymore, 9 Ohio St. 2d 122, 224 N.E. 2d 126 (1967). A
trial court abuses its discretion when it makes a decision that is unreasonable, arbitrary,
or unconscionable. State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶
24.
{¶ 71} The record reflects that the trial court overruled three objections to testimony
of the victim and her friend Courtney describing how M.W. changed after the alleged
rapes. No expert testimony was offered to substantiate that the sexual incident was the
direct and proximate cause of M.W.’s psychological distress after the sexual encounter.
Hartman argues that testimony regarding the alleged impact on the victim was not relevant
to the material issues in the case, and was highly prejudicial. On the record, the trial court
overruled an objection to a question directed to the victim asking “[A]fter that day how did
you change?” as follows:
MR. CONARD: Objection, Your Honor. No foundation.
THE COURT: Further, I do not see the relevance. What’s the relevance of
this?
MS. MULLINS: Your Honor, it’s to show how a tragic situation changed her
demeanor and her personality. It goes to when someone goes through a
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tragic situation, they change. It goes to show that.
THE COURT: How does make - - I’ll allow just a little bit of this. But, again,
it seems to me that her change in demeanor, it has to be directed toward
whether - - proving that the events she has described more probably
happened. That’s the only reason it could be relevant; is that if those
changes in her demeanor makes it more likely that the events that have
been described occurred. I don’t want this for any form of sympathy.
MS. MULLINS: No, Your Honor.
THE COURT: All right. Go ahead.
MS. MULLINS: [M.W.], how did your demeanor, how did your personality
change from before this happened to after this happened?
MR. CONARD: Your honor, I would renew my objection.
THE COURT: And the basis?
MR. CONARD: It would be relevance.
THE COURT: And again, I think there is some minimal relevance to this
under Evidence Rule 401, in that if this event did change her demeanor, her
personality, that does make it perhaps slightly more likely that the events
described occurred. So for that purpose and that purpose alone, I will allow
this testimony.
Trial Transcript at 46-47.
{¶ 72} The record also reflects that questions were asked of the victim’s friend
Courtney, about the victim’s demeanor after the incident to bolster the victim’s credibility.
Again, the trial court admitted the bolstering testimony, stating as follows:
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THE COURT: Again, I am going to allow it for the minimal purpose of –
since this witness can testify to what [M.W.]’s personality was before the
alleged incident and then after the incident. Not for any purposes of
sympathy, but simply for purposes, under [Evid. R.] 401, of whether or not
this change in personality makes the events more or less probable. For
that purpose and that purpose alone.
Trial Transcript at pgs. 124-125.
{¶ 73} We conclude that the trial court properly found that the evidence of the
victim’s demeanor was probative. While admissible, the trier of fact is free to give little
weight to the evidence. On this record, we conclude that the trial court, the trier of fact, as
evidenced by its comments, did not give undue weight, or even much weight at all, in
rendering its verdict. The alleged change in the victim’s demeanor is but one of numerous
facts that were considered by the trial judge in his conclusion that the victim was raped.
{¶ 74} Courtney’s opinions regarding the victim’s demeanor after the sexual
encounter were rationally based on her perceptions of the victim’s conduct, and helpful to
a clear understanding of her testimony, because her conclusions were drawn from a close
personal friendship with the victim, not just from the type of common experiences used by
juries to draw reasonable inferences. The victim’s testimony about her own personality
changes was subject to cross-examination and was admissible under Evid. R. 401.
{¶ 75} In the case before us, the trial court did not abuse its discretion by admitting
the testimony regarding a change in the victim’s demeanor. Hartman’s Twelfth Assignment
of Error is overruled.
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IX. Admission of Hearsay Was Not Materially Prejudicial
{¶ 76} For his Thirteenth Assignment of Error, Hartman asserts:
THE TRIER OF FACT’S ADMISSION AND CONSIDERATION OF
THE OVERWHELMING AMOUNT OF HEARSAY IN THIS CASE
REQUIRES REVERSAL
{¶ 77} Hartman argues that the trial court improperly admitted hearsay evidence
and that the hearsay was material to the outcome because the trial court announced the
verdict in open court and in the written decision overruling the motion for a new trial, by
stating that its decision was “based on the evidence presented.” We initially note that the
“decision whether to admit or exclude evidence is within the sound discretion of the trial
court, and ‘unless the trial court clearly abused its discretion and a party was materially
prejudiced as a result, reviewing courts should be slow to interfere.’ ” Kademian v. Marger,
2014-Ohio-4408, 20 N.E.3d 1176, ¶ 41 (2d Dist.), quoting Waste Mgt. of Ohio, Inc. v. Mid-
America Tire, Inc., 113 Ohio App.3d 529, 533, 681 N.E.2d 492 (2d Dist.1996). “The trial
court has broad discretion to determine whether a declaration should be admissible as a
hearsay exception.” State v. Everson, 7th Dist. Mahoning No. 12 MA 128, 2016-Ohio-87,
¶ 27, quoting State v. Dever, 64 Ohio St.3d 401, 410, 596 N.E.2d 436 (1992).
{¶ 78} The fact that defense counsel did not object to this hearsay testimony at the
time of trial requires us to utilize a plain error standard of review. Plain error is not
grounds for reversal, unless it is established that but for the error, the outcome of the trial
would have been different. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E. 2d 1043(1996). “Notice of plain error ‘is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’ ” State v. Haney,
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12th Dist. Clermont No. CA2005-07-068, 2006-Ohio-3899, ¶ 50, quoting State v. Long, 53
Ohio St.2d 91, 372 N.E. 2d 804 (1978), paragraph three of the syllabus. Presuming that
the trial court considered and relied on hearsay statements in reaching its verdict, we must
determine if the effect was materially prejudicial such that the outcome would have been
different had the hearsay been excluded.
{¶ 79} As discussed above, the trial court did admit statements made by the victim
to the victim’s friend, Courtney, to the sexual assault nurse, and to the detective who
interviewed the victim. As we concluded above, it was a reasonable defense strategy
not to object to this hearsay in order to establish prior inconsistent statements to attack
the credibility of the victim during cross-examination. Hartman has not produced evidence
of any other grounds for attacking the victim’s credibility that could have been raised if the
hearsay statements had not been admitted. Without the evidence of the prior
inconsistent statements, the defense strategy to attack the victim’s credibility would have
been even more difficult, and less likely to result in an acquittal. Since we find no material
prejudice to the admission of the hearsay statements, we do not find plain error or an
abuse of discretion. Hartman’s Thirteenth Assignment of Error is overruled.
X. Scientific Testing May Be Admitted Through the Testimony of
an Expert Who Did Not Conduct the Testing
{¶ 80} For his Fourteenth Assignment of Error, Hartman asserts:
THE ADMISSION OF MARK SQUIBB’S TESTIMONY IN
VIOLATION OF CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004)
REQUIRES REVERSAL
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{¶ 81} Hartman argues that the admission of scientific evidence through a witness
who did not conduct the scientific test is structural error. Convictions based on structural
errors, which involve a constitutional “defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself,” are subject to automatic
reversal, regardless of whether harm or prejudice is shown. Neder v. United States, 527
U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The State argues that the expert’s
testimony was not hearsay, because the DNA expert testified to his own actions in
performing a peer review of the actual lab technician’s report. The State also argues that
a confrontation clause violation, if any, was waived when the defense failed to object to
the testimony of the DNA expert at trial. The State also argues that any error was
harmless. As discussed below, we conclude that our review of this assignment of error
must be based on whether the error was waived or constitutes plain error.
{¶ 82} For purposes of the confrontation clause, it has been held that the contents
of a laboratory report is testimonial in nature when its conclusion is prima facie evidence
of an element of the offense. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct.
2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. 647, 663-664, 131
S.Ct. 2705, 2716, 180 L.Ed.2d 610 (2011). However, the U.S. Supreme Court has also
held that expert testimony from a forensic specialist about the findings of a DNA test that
was not performed by the witness did not violate the defendant’s right to confrontation
because the testimony was offered for the purpose of explaining the assumptions on which
the expert’s opinion relied, and were not offered for the truth of the assumptions. Williams
v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 183 L.E.2d 89 (2012). See also State v. Maxwell,
139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 42. In the case before us, Hartman
-49-
challenges not only the admission of the lab reports, but his inability to cross-examine the
witness who actually performed the DNA tests. The record supports that the DNA expert
who did testify was unable to fully explain the reasoning for the process used to conduct
the testing, which the witness did not conduct. “Fundamentally, the Confrontation Clause
imposes a burden on the prosecution to present its witnesses, not on the defendant to
bring those adverse witnesses into court.” Melendez-Diaz v. Massachusetts, 557 U.S. at
325. “[T]he [Confrontation] Clause does not tolerate dispensing with confrontation simply
because the court believes that questioning one witness about another's testimonial
statements provides a fair enough opportunity for cross-examination.” Bullcoming v. New
Mexico, 564 U.S. at 662.
{¶ 83} We agree that the record establishes that during trial, defense counsel did
not object to the testimony of Squibb, the DNA expert, in place of Draper, the lab analyst
who personally conducted the testing and interacted with the persons in law enforcement
who requested the tests. We do not agree that counsel’s failure to object automatically
constitutes a waiver of his Sixth Amendment right to confrontation. We acknowledge that
the Supreme Court of Ohio in State v. Pasqualone, 121 Ohio St. 3d 186, 2009-Ohio-315,
903 N.E. 2d 270, held that confrontation clause rights, like other constitutional rights, can
be waived. Although the Court in Pasqualone was addressing the potential error of
admitting a laboratory report, without the testimony of the person who prepared the report,
the holding in Pasqualone rests entirely on a statutory provision, R.C. 2925.51, that
specifically provides that defense counsel statutorily waives the right to insist on the
testimony of the lab technician, if the procedure specified by the statute is not followed.
Inapplicable to the case before us, R.C. 2925.51 only applies to testing done on drugs,
-50-
not DNA samples. The statute applicable to drug testing puts the defense on notice that
they have a right and that it is waived if the procedure is not followed, which comports with
the legal concept of waiver requiring a voluntary relinquishment of a known right. In re
B.N.C., 2d Dist. Montgomery No. 25615, 2013-Ohio-4071, ¶ 49. The U.S. Supreme
Court in Melendez-Diaz, supra, commented that state statutes, such as R.C. 2925.51, do
not run afoul of the confrontation clause when the effect of the statute is only to establish
the procedural timing of when the right must be exercised. In the case before us, the State
identified Emily Draper as the witness it intended to call to introduce the lab report and the
DNA analysis. Dkt. #40. The defense had no prior notice that it would waive the right to
cross-examine the lab technician if she did not show up for trial. However, by failing to
object at trial when the State called Squibb instead of Draper, Hartman waived all but plain
error. “Where preserved by objection, review of Confrontation Clause claims is for
harmless error. Confrontation Clause claims not preserved by objection are reviewed for
plain error.” State v. Habo, 11th Dist. Portage No. 2012-P-0056, 2013-Ohio-2142, ¶ 35,
citing State v. Scott, 10th Dist. Franklin No. 05AP-1144, 2006-Ohio-4981, ¶ 11, fn. 4.
{¶ 84} By claiming structural error, Hartman essentially argues that on this record,
without the testimony of the analyst, prejudice is presumed. We disagree. The purpose
of the testimony of the DNA expert was twofold; first, it proved that Hartman engaged in
sexual intercourse with M.W., because his semen was found from a vaginal swab taken
from M.W.; and secondly, that DNA testing of the bed comforter proved that there was
movement of the two bodies on the comforter, as DNA evidence was found in numerous
different spots. Hartman testified at trial, and did not dispute that he had sexual
intercourse with M.W., so he was not prejudiced by the admission of the DNA lab report
-51-
or the testimony that explained the testing process. The evidence involving the comforter
was also not prejudicial, because it was not probative to any element of the charged
offenses, and may actually have supported Hartman’s defense that the encounter was
consensual, based upon a reasonable inference that M.W. was not held down or
restrained during the sexual encounter. In closing arguments, Hartman’s counsel did
suggest that the testimony of the DNA expert be given little weight because, “when swabs
were taken from [M.W.]’s mouth, they weren’t tested. So, there’s aspects of the
investigation that appear to be incomplete as well that could have helped us in this path
as we look for the truth.” Trial Transcript at 520. If Hartman’s argument is based on the
possibility of evidence that was not provided by the State, that potential error does not
constitute a confrontation-clause violation. “The state has no duty to gather exculpatory
evidence. Moreover, it is wholly speculative whether further investigation would have
uncovered potentially exculpatory evidence.” State v. Smith, 2d Dist. Montgomery No.
20247, 2005-Ohio-1374, ¶ 12, citing State v. Farris, 2d Dist. Clark No. 2003 CA 77, 2004-
Ohio-5980, ¶ 20. The defendant bears the burden to show that the evidence not produced
was materially exculpatory, or that the failure to produce the evidence was based on bad
faith, in order to demonstrate a due-process violation. State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 74-77. Since Hartman has not raised a due-process
argument, the issue of whether the lab should have tested the full rape kit to provide
potentially exculpatory evidence to the defense is not before us. Hartman has not
established that there is a reasonable possibility that had he been able to cross-examine
the lab analyst there would have been a great likelihood of a different outcome.
{¶ 85} Even without the testimony of the DNA analyst, the trier-of-fact had
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sufficient evidence to support each element of the charged offenses. Hartman has not
established that but for a confrontation-clause error, the outcome of the trial would have
been different. Accordingly, Hartman’s Fourteenth Assignment of Error is overruled.
XI. Cumulative Effect Of Multiple Errors Not Established
{¶ 86} For his Fifteenth Assignment of Error, Hartman asserts:
THE CUMULATIVE EFFECT OF MULTIPLE ERRORS DENIED
HARTMAN A FAIR TRIAL
{¶ 87} Hartman argues that the cumulative effect of two or more errors should be
grounds for reversing his convictions, even if the errors are determined to be harmless.
The cumulative-error doctrine provides that a “conviction will be reversed where the
cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair
trial even though each of numerous instances of trial error does not individually constitute
cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E. 2d 623 (1995). “In
order to find cumulative error, we must find: (1) that multiple errors were committed at trial,
and (2) there is a reasonable probability that the outcome of the trial would have been
different but for the combination of the separately harmless errors.” State v. Goldblum, 2d
Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 58.
{¶ 88} Although we have found some basis for a claim of ineffective assistance of
counsel, we have concluded that even when cumulated, the instances of ineffective
assistance are insufficiently prejudicial to merit reversal. Similarly, when those instances
are cumulated with the alleged deficiency in the indictment, and the alleged confrontation-
clause violation, we still conclude that these alleged errors are not sufficiently prejudicial
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to have created a reasonable probability of a different result, had the errors not occurred.
{¶ 89} Hartman’s Fifteenth Assignment of Error is overruled.
XII. Conclusion
{¶ 90} All of Hartman’s assignments of error having been overruled, the judgment
of the trial court is Affirmed.
..........
WELBAUM, J., concurs.
HALL, J., concurring:
{¶ 91} I agree with the resolution of the issues reached in the lead opinion. I write
separately to express my opinion that the right to confront DNA expert Draper was waived.
Moreover, even if it was not, there is no showing that the use of the alternate test reviewer,
Squibb, had any prejudicial effect.
..........
Copies mailed to:
Mathias H. Heck
Andrew T. French
S. Adele Shank
Lawrence J. Greger
Hon. Michael Tucker