State v. Bell , 2020 Ohio 4510 ( 2020 )

[Cite as State v. Bell, 2020-Ohio-4510.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-18-40
v.
CORY BELL,
OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 2018 CR 0144
Judgment Affirmed
Date of Decision: September 21, 2020
APPEARANCES:
Thomas A. Gjostein for Appellant
Nathan R. Heiser for Appellee
Case No. 9-18-40
PRESTON, J.
{¶1} Defendant-appellant, Cory Bell (“Bell”), appeals the October 9, 2018
judgment of sentence of the Marion County Court of Common Pleas. For the
reasons that follow, we affirm.
{¶2} This case arises from a March 2018 incident in which Bell allegedly
restrained and raped E.M., a former romantic partner. According to E.M., on the
evening of March 28, 2018, she walked to Bell’s house to speak with him about
some text messages he had sent her over the preceding two days and to confront him
about threats he had directed toward her brother. When E.M. arrived at Bell’s house,
Bell allowed her into his bedroom. Shortly after E.M. entered Bell’s bedroom, Bell
allegedly grabbed E.M., pinned her arms to her sides, and pushed her onto his bed.
E.M. alleged that, in the minutes that followed, Bell bound her hands with rope,
forced his penis into her mouth, penetrated her vagina with a flashlight, and engaged
in vaginal intercourse with her.
{¶3} On April 5, 2018, the Marion County Grand Jury indicted Bell on four
counts: Counts One through Three of rape in violation of R.C. 2907.02(A)(2), first-
degree felonies, and Count Four of kidnapping in violation of R.C. 2905.01(A)(4),
-2-
Case No. 9-18-40
a first-degree felony.1 (Doc. No. 1). On April 9, 2018, Bell appeared for
arraignment and pleaded not guilty to the counts of the indictment. (Doc. No. 6).
{¶4} A jury trial commenced on September 18, 2018. (Doc. Nos. 49, 56);
(Sept. 18-20, 2018 Tr., Vol. I, at 9). On September 20, 2018, the jury found Bell
guilty of Counts Three and Four. (Doc. Nos. 93, 94). However, the jury found Bell
not guilty of Counts One and Two. (Doc. Nos. 91, 92).
{¶5} On October 5, 2018, the trial court sentenced Bell to nine years in prison
on Count Three and nine years in prison on Count Four. (Doc. No. 100). The trial
court ordered that the sentences for Counts Three and Four be served concurrently
for an aggregate term of nine years’ imprisonment. (Id.). The trial court filed its
judgment entry of sentence on October 9, 2018. (Id.).
{¶6} On November 5, 2018, Bell filed a notice of appeal. (Doc. No. 104).
He raises two assignments of error for our review, which we elect to consider out of
order.
Assignment of Error No. II
Appellant’s conviction was not supported by the sufficiency of the
evidence in violation of the due process clause of the Fourteenth
Amendment to the U.S. Constitution and Article I, Sections 1 &
16 of the Ohio Constitution and the conviction was also against
the manifest weight of the evidence. [Tr. Overall].
1
Count One related to the allegation that Bell forced E.M. to perform fellatio. (Doc. No. 16). Count Two
related to the allegation that Bell penetrated E.M.’s vagina with a flashlight. (Id.). Count Three related to
the allegation that Bell had nonconsensual vaginal intercourse with E.M. (Id.).
-3-
Case No. 9-18-40
{¶7} In his second assignment of error, Bell argues that his rape and
kidnapping convictions are not supported by sufficient evidence and are against the
manifest weight of the evidence.
{¶8} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Accordingly, we address each legal concept individually.
{¶9} “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.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25
(1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380,
-4-
Case No. 9-18-40
¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or
weight of the evidence.”), citing Thompkins at 386.
{¶10} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, 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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶11} In this case, Bell was convicted of one count of rape and one count of
kidnapping. The offense of rape is codified at R.C. 2907.02, which provides, in
relevant part, that “[n]o person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by force or threat of
-5-
Case No. 9-18-40
force.” R.C. 2907.02(A)(2) (Jan. 1, 2008) (current version at R.C. 2907.02(A)(2)
(Mar. 22, 2020)). “Sexual conduct” includes “vaginal intercourse between a male
and female * * *.” R.C. 2907.01(A) (Jan. 1, 2008) (current version at R.C.
2907.01(A) (Mar. 22, 2019)). “Penetration, however slight, is sufficient to complete
vaginal * * * intercourse.” Id.{¶12} The offense of kidnapping is codified at R.C. 2905.01, which provides,
in relevant part, that “[n]o person, by force, * * * shall * * * restrain the liberty of
[another], for any of the following purposes: * * * [t]o engage in sexual activity, as
defined in [R.C. 2907.01], with the victim against the victim’s will.” R.C.
2905.01(A)(4) (Sept. 30, 2011) (current version at R.C. 2905.01(A)(4) (Mar. 22,
2019)). As defined in R.C. 2907.01, “sexual activity” includes “sexual conduct.”
R.C. 2907.01(C) (Jan. 1, 2008) (current version at R.C. 2907.01(C) (Mar. 22,
2019)). “Under R.C. 2905.01(A), ‘“the [culpability] of the statute is purpose[.]”’”
State v. Bentz, 3d Dist. Allen No. 1-16-17, 2017-Ohio-5483, ¶ 110, quoting State v.
Montgomery, 2d Dist. Montgomery No. 22193, 2009-Ohio-1415, ¶ 12, quoting
State v. Carver, 2d Dist. Montgomery No. 21328, 2008-Ohio-4631, ¶ 145.
{¶13} “Force” is an element of both R.C. 2907.02(A)(2) and R.C.
2905.01(A)(4). “Force” means “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1) (Apr.
6, 2017) (current version at R.C. 2901.01(A)(1) (Mar. 22, 2019)). Furthermore,
-6-
Case No. 9-18-40
R.C. 2907.02(A)(2) and 2905.01(A)(4) each require the State to prove that the
defendant acted purposely. Bentz at ¶ 110; Starcher v. Eberlin, 7th Dist. Belmont
No. 08 BE 19, 2008-Ohio-5042, ¶ 16-17. “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.” R.C. 2901.22(A).
{¶14} At trial, the State’s first witness was Jeanne Henry (“Henry”), one of
E.M.’s best friends. (Sept. 18-20, 2018 Tr., Vol. I, at 174). Henry testified that on
March 28, 2018 at approximately 7:00 p.m., she and E.M. communicated via text
message and spoke on the phone. (Id. at 177-179, 190). According to Henry, E.M.
told her that she was walking over to Bell’s house to speak to him. (Id. at 178-179).
Henry stated that she insisted on accompanying E.M. to Bell’s house and that she
requested that E.M. delay going to Bell’s house until she got off of work. (Id. at
179). However, Henry testified that E.M. would not wait for her before going to
Bell’s house. (Id. at 190).
{¶15} Henry stated that E.M. did not contact her again until approximately
8:45 or 9:00 p.m., at which time E.M. called her. (Id. at 180, 193). Henry testified
that E.M. was crying during the phone call. (Id.). After this phone call, Henry went
to pick up E.M. According to Henry, when she picked up E.M., E.M. “was shaking
-7-
Case No. 9-18-40
to the point where [her] entire car was shaking; [she] would not stop crying.” (Id.
at 181). Henry described E.M. as “distraught” and testified that she could barely
speak when she first got into the car. (Id.). Henry stated that she called her father
for advice and that her father suggested taking E.M. to the emergency room at
Marion General Hospital (“Marion General”). (Id. at 182). Following her father’s
advice, Henry took E.M. to Marion General. Henry testified that at Marion General,
E.M. “couldn’t stop crying” and “wasn’t herself.” (Id. at 185-186). Henry
contrasted E.M.’s emotional state at Marion General with her emotional state during
their conversation before E.M. went to Bell’s house. She stated that before E.M.
went to Bell’s house, “[s]he was fine. She had no problem talking to [her]. She was
her happy-go-lucky, flying-a-kite kind of * * * person before she got there.” (Id. at
192).
{¶16} The State’s next witness was Shelby Landoll (“Landoll”), a Sexual
Assault Nurse Examiner (“SANE”) at Marion General. (Id. at 196). Landoll
testified that she examined E.M. on March 28, 2018. (Id. at 211-212). Landoll
stated that E.M. initially presented as calm but a “little disheveled.” (Id. at 212).
She testified that E.M.’s mood changed during the examination and that she
alternated between anger and sadness. (Id. at 212-213).
{¶17} Landoll testified that during the examination, E.M. disclosed that she
had lost consciousness at some point during the alleged assault. (Sept. 18-20, 2018
-8-
Case No. 9-18-40
Tr., Vol. I, at 218). She also stated that E.M. claimed that Bell had applied force to
her neck. (Id. at 218-219). According to Landoll, she observed several injuries to
E.M. that she believed to be consistent with this account. Landoll testified that she
saw one red dot behind E.M.’s ear, which she identified as a petechia, and that she
noted yellow-brown bruising spanning from the middle of E.M.’s throat to the left
side of her neck. (Id. at 219-223); (State’s Exs. 10, 11, 15). In addition, Landoll
discovered dirt and debris on E.M.’s neck, which suggested to Landoll that
something might have been placed around E.M.’s neck. (Sept. 18-20, 2018 Tr., Vol.
I, at 223).
{¶18} Furthermore, Landoll “distinctly remember[ed] walking in and seeing
ice packs on both [of E.M.’s] wrists.” (Id. at 212). She testified that E.M. presented
with apparent ligature marks all the way around each of her wrists. (Id. at 224);
(State’s Exs. 12, 17, 18). Landoll stated that the redness, cuts, and scratches on
E.M.’s wrists were “consistent with the history that she gave * * *; that she was tied
up with nylon rope; and then that she did try to fight the rope off but wasn’t able to.
So the scratches might be * * * [from] trying to fight off.” (Sept. 18-20, 2018 Tr.,
Vol. I, at 228).
{¶19} Additionally, Landoll testified that E.M. reported pain and tenderness
in her genitals. (Id. at 230). However, Landoll stated that there was nothing
abnormal discovered during E.M.’s pelvic exam and that there were no signs of
-9-
Case No. 9-18-40
genital trauma. (Id. at 229-231). She testified that it is possible for a sexual assault
victim to experience pain without any outward indicators of physical trauma. (Id.
at 230). She further testified that as many as 90 percent of sexual assault victims
who present for examination do not exhibit anal or genital trauma. (Id. at 211, 229).
Landoll opined that E.M.’s injuries were consistent with her report of the alleged
sexual assault and that she was not surprised that E.M. did not present with trauma.
(Id. at 245).
{¶20} On cross-examination, Landoll testified that the ligature marks on
E.M.’s wrists could also be consistent with voluntary binding as part of a sex act.
(Id. at 248). Landoll also stated that other indicators of potential strangulation, such
as neck swelling or tenderness, hoarseness, or shortness of breath, were not
documented during E.M.’s examination. (Id. at 258). However, though she testified
that these are indicators of strangulation, she stated that they are not necessarily
present in every instance of strangulation and that a person who has been strangled
can have one, all, or none of these indicators. (Id.). With respect to the bruising
that she observed on E.M.’s neck, Landoll was unable to offer an opinion as to when
E.M. sustained the bruises. (Id. at 261). She testified that many different factors
affect how bruises age and how bruises look when they age. (Id. at 261-262).
{¶21} Landoll testified that because she did not observe any trauma, she
concluded that it was unnecessary to take photographs of E.M.’s genitals. (Sept.
-10-
Case No. 9-18-40
18-20, 2018 Tr., Vol. I, at 268-269). She stated that she did not observe any damage
to E.M.’s hymen and that her hymen was completely normal for a woman who may
have had sexual intercourse a few hours before the examination or at any time in
her life. (Id. at 273-274). Landoll reiterated that E.M.’s pelvic exam did not reveal
any abnormalities, despite the fact that E.M. reported pelvic pain. (Id. at 274). She
testified that the presence of genital injuries and the absence of genital injuries are
both consistent with and support a finding of sexual assault. (Id. at 279-280).
Finally, Landoll confirmed that E.M. had reported that she kneed Bell in his testicles
during the alleged assault and that she bit him above his elbow. (Id. at 270-273).
{¶22} On redirect examination, Landoll testified that during the examination,
E.M. never stated that she had consensual sexual intercourse with Bell on March
28, 2018 or that she consented to having her wrists bound. (Id. at 276). Landoll
stated that “[t]here [were] many times where [E.M.] said that she wanted let go and
she was asking why [Bell] was doing this to her and that she wanted to leave.” (Id.).
Further, she testified that although swelling of the neck may be a sign of
strangulation, “[t]here may be no signs whatsoever, no outward physical signs
whatsoever of strangulation. That’s very, very possible and common.” (Id. at 277).
Finally, in response to a question posed by a member of the jury, Landoll stated that
she could not offer an opinion as to when the injuries to E.M.’s wrists or neck were
inflicted. (Id. at 283).
-11-
Case No. 9-18-40
{¶23} Following Landoll’s testimony, Darlene Schoonard (“Schoonard”),
who also works as a SANE at Marion General, testified that she examined Bell on
the morning of March 29, 2018. (Sept. 18-20, 2018 Tr., Vol. II, at 291-292, 298-
299, 303). Schoonard testified that she did not document any trauma to or discharge
on Bell’s genitals. (Id. at 302). However, she stated that she found petechiae on
Bell’s tongue, an abrasion on the left side of Bell’s face, superficial scratches on
Bell’s back and on his buttocks, a superficial abrasion on his left wrist, an abrasion
on his right index finger, and abrasions on both of his knees. (Id.).
{¶24} On cross-examination, Schoonard testified that she had the ability to
observe Bell’s entire body during the examination. (Id. at 314). She stated that she
did not find any bite marks on Bell’s body. (Id.). Schoonard testified that, as a
SANE, she is trained to look for things like redness, tenderness, and swelling in a
patient’s groin, but that she did not observe bruising, swelling, or any other indicator
of injury in the area of Bell’s groin. (Id.). She also testified that she did not observe
any injury to Bell’s penis. (Id. at 317-318). Schoonard agreed that the abrasions on
Bell’s body could have been caused by “everyday living,” and she testified that none
of the abrasions on Bell’s body was consistent with a bite mark. (Id. at 315). She
also testified that the scratches on Bell’s face could be consistent with “pimple
popping.” (Id. at 316-317). However, on redirect examination, Schoonard testified
-12-
Case No. 9-18-40
that perpetrators of sexual assault “present with no trauma most of the time.” (Id.
at 319).
{¶25} The State then offered the testimony of Detective Nick Esterline
(“Detective Esterline”) of the Marion Police Department. (Id. at 322). Detective
Esterline testified that he participated in the execution of a search warrant at Bell’s
house. (Id. at 323-324). He stated that during the search of Bell’s bedroom, he
located a section of white rope in a red laundry basket and seized it. (Id. at 325-
326); (State’s Exs. 5, 39). Detective Esterline described the length of rope as being
looped with a knot at one end. (Sept. 18-20, 2018 Tr., Vol. II, at 331); (State’s Ex.
40).
{¶26} On cross-examination, Detective Esterline testified that E.M. had
claimed that the rope used to tie her hands was similar to fishing line. (Sept. 18-20,
2018 Tr., Vol. II, at 341). However, he agreed that the rope discovered in Bell’s
bedroom “doesn’t look like fishing line at all.” (Id.).
{¶27} The State also offered the testimonies of Andrew Sawin (“Sawin”) and
Hallie Dreyer (“Dreyer”), forensic scientists at the Ohio Bureau of Criminal
Investigation. (Id. at 370). Sawin testified that, with respect to swabs taken from
the inside of E.M.’s vagina, a mixture of DNA profiles was found. (Id. at 379-380).
He stated that of the DNA profiles that were suitable for comparison, E.M. was
identified as a contributor; Bell was “excluded from the interpretable data.” (Id. at
-13-
Case No. 9-18-40
379-380). Sawin explained that “the conclusion of Cory Bell excluded from
interpretable data means that for the portion of that mixture that [he] could make
comparisons with, Cory Bell was excluded from that portion.” (Id. at 380-381).
However, he stressed that, concerning the genetic information that was not suitable
for comparison, he could not determine who the contributor was. (Id. at 381).
Sawin testified that the swabs from E.M.’s mons pubis yielded a similar result. That
is, E.M. was included as an expected contributor and a male component was found,
but Bell was excluded from the interpretable data. (Id. at 381-382).
{¶28} Sawin also testified about the results of the testing of the swabs taken
from Bell. Sawin stated that a mixture of DNA profiles was found on swabs taken
from Bell’s penis and testicles. (Sept. 18-20, 2018 Tr., Vol. II, at 383). He testified
that E.M.’s DNA was included as a minor component of that mixture and that “the
statistics that accompany that inclusion is 1 in 3 billion.” (Id. at 383-385). He also
testified that a mixture of DNA profiles was detected in swabs of Bell’s suprapubic
area, that E.M. was identified as a contributor to that mixture, and that “the statistic
to accompany that inclusion is rarer than 1 in 1 trillion.” (Id. at 385). Furthermore,
Sawin stated that E.M. was identified as a contributor to a mixture of DNA found
on Bell’s left thigh. (Id. at 386). However, he testified that although a mixture of
DNA profiles was detected on swabs taken from Bell’s right thigh, E.M. was
excluded from the interpretable data. (Id.).
-14-
Case No. 9-18-40
{¶29} As for Dreyer, she testified about the results of Y-STR DNA testing
performed on the swabs taken from E.M.’s body. Dreyer explained that “Y-STR
DNA is a male-specific DNA test where we look at DNA that is unique to the Y
chromosome, which only males possess.” (Id. at 426). She testified that, with
respect to male DNA found on the swabs from the inside of E.M.’s vagina, “[t]he
only profile that was interpretable was that from the non-sperm fraction and that
profile is consistent with Cory Bell. He had been included. * * * [N]either Cory
Bell, nor any of his paternal male relatives can be eliminated as the source of this
DNA profile.” (Id. at 427). She stated that these results “g[ave] [her] a frequency
of 1 in 699 unrelated males.” (Id. at 427-428). Dreyer testified that similar results
were obtained from E.M.’s perianal swabs, where testing found a single male DNA
profile consistent with Bell’s DNA at a frequency of 1 in 699 unrelated males. (Id.
at 428-429). Dreyer also testified that non-sperm DNA consistent with Bell’s DNA
was recovered from the swabs of E.M.’s mons pubis. (Id. at 429). However,
because this DNA provided only a partial profile, Dreyer could determine only that
this profile “would not occur more frequently than 1 in 58 males.” (Id.). Moreover,
from the available materials, Dreyer could not determine when Bell’s DNA was
deposited on or in E.M. (Id. at 440-441). Finally, Dreyer cautioned that Y-STR
DNA testing cannot be used to make a “unique identification.” (Id. at 431).
-15-
Case No. 9-18-40
{¶30} E.M. was the State’s next witness. She testified that she met Bell in
October 2017 using the online dating service Plenty of Fish. (Id. at 447). E.M.
stated that she and Bell started having sexual relations soon after they met and that
she initially attempted to build a relationship with Bell. (Id. at 448-449). She
testified, however, that by November 2017, she and Bell stopped talking to each
other and mutually agreed to part ways. (Id. at 448-449). Yet, according to E.M.,
by January or February 2018, she and Bell began talking again. (Id. at 450). She
testified that in the ensuing weeks, she and Bell had sexual intercourse two or three
times, but that by the end of February 2018, Bell “seemed like he was getting really
possessive and demanding [that she] constantly come over and everything.” (Id. at
450-451). E.M. stated that, as a result, she withdrew from Bell and stopped going
over to his house. (Id. at 451-452). She also testified that she decided that she no
longer wanted to pursue a relationship with Bell in part because she was attempting
to reunite with an ex-boyfriend. (Id. at 452).
{¶31} E.M. testified that even after she stopped going over to Bell’s house,
Bell continued to send her numerous text messages. (Sept. 18-20, 2018 Tr., Vol. II,
at 452-453). She stated that she frequently did not respond to Bell’s text messages
and that Bell grew increasingly upset because she failed to respond to his messages
and refused to go over to his house. (Id. at 456). E.M. testified that on March 27,
2018, the day before the alleged assault, Bell told her via text message that he
-16-
Case No. 9-18-40
needed to talk to her in person. (Id. at 458). According to E.M., by this time, she
had not been to Bell’s house or had sexual relations with Bell for several weeks.
(Id. at 459, 469). She stated that she told Bell that she did not want to go over to his
house and that she did not want to talk to him anymore. (Id. at 459).
{¶32} E.M. testified that despite her efforts, Bell persisted in trying to get her
to come over to his house. She stated that on March 28, 2018, she was playing video
games with her brother when she received a phone call from Bell. (Id. at 464). She
testified that Bell asked her whether she was going to come over to his house. (Id.).
E.M. stated that during this phone call, she was trying to get Bell to tell her what it
was that he needed to talk to her about in person. (Id.). She testified that Bell
sounded upset because she kept giving him excuses for why she could not go over
to his house at that time. (Id. at 465). According to E.M., while she was talking to
Bell, her brother “jokingly comment[ed] that [she was] not allowed to leave.” (Id.).
E.M. stated that she related this comment to Bell and that Bell responded by
threatening to “whop [sic] [her] little brother’s ass.” (Id. at 465-466). She testified
that she then hung up the phone and that, after receiving more text messages from
Bell threatening her brother, she made a decision. (Id. at 467). E.M. stated that her
“decision was to go over there because [she] was going to confront [Bell] face to
face about him threatening [her] little brother and because of the fact of the matter
-17-
Case No. 9-18-40
that [she] had to pretty much already go over there to figure out what’s wrong with
him.” (Id.).
{¶33} E.M. testified that, having decided to go over to Bell’s house to
confront him, she armed herself with a hunting knife. (Id. at 469-470). She stated
that she brought the knife because she “get[s] very sketchy when it comes to
situations of going to talk to somebody who’s already in a[n] * * * aggravated mood,
so it’s a first instinct for [her] to have something to protect [herself].” (Id. at 469-
470). She insisted that she did not bring the knife with the intention to attack Bell,
but she admitted telling her housemates, “If I don’t come back tonight or you get a
call from jail, it’s probably because I did kill him.” (Id. at 472). E.M. testified that
she put the knife in her back pocket and began walking over to Bell’s house between
7:30 and 8:00 p.m. (Id. at 470-471). She confirmed that she called Henry en route
to Bell’s house and that Henry requested that she not go to Bell’s house
unaccompanied. (Id. at 471). E.M. stated that she did not wait for Henry to come
with her because she did not know what Bell would do when she got to his house
and she did not want Henry to get hurt. (Id.).
{¶34} E.M. testified that when she arrived at Bell’s house, she walked in the
door, confronted him, and told him that if he “ever threaten[ed] [her] little brother
again, [she would] end [him].” (Sept. 18-20, 2018 Tr., Vol. II, at 474). She stated
that Bell said little in response, but that he instead “grabbed [her] as though of a
-18-
Case No. 9-18-40
hug, pinning [her] arms to [her] side, and then he started to kiss [her], and [she] told
him, ‘No.’” (Id.). E.M. said that it felt like Bell was giving her a “bear hug” from
the front. (Id.). She testified that she tried to pull away and break free from Bell,
and she stated that though she is bigger than Bell, she was unable to free herself
because she does not have a lot of muscle mass in her arms. (Id. at 475). She stated
that she suffers from a medical condition that limits her arms’ range of motion and
that she cannot move her arms well when they are pinned “at an exact point” on her
side. (Id.).
{¶35} E.M. testified that Bell “w[ound] up walking [her] backwards to his
bed, and [she] wound up being pretty much pushed onto the bed.” (Id. at 476). She
stated that Bell then got on top of her and resumed trying to kiss her. (Id.). E.M.
testified that for the next 5 to 6 minutes, she tried to push Bell off of her while telling
him that she did not want to have sex with him. (Id. at 476-477). E.M. stated that
Bell eventually placed one foot on the floor, keeping his other leg on top of her to
restrain her, and reached under his bed to grab a length of rope. (Id. at 477-479).
She testified that
at the point in time where he went and reached under the bed, [she]
went to go get back up, and [she] wasn’t able to get up in time before
he grabbed it and pushed [her] down. He was able to get [her] left
hand tied, and as [she] was trying to push him off of [her] with [her]
-19-
Case No. 9-18-40
right and untie it from [her] left hand, he managed to grab [her] right
hand and tie it up with [her] left. And as all of this is going on, [she
was] having [her] hands pinned against [her] chest and trying to push
off of him.
(Id. at 477-478). E.M. identified State’s Exhibit 40 as the rope that Bell used to
bind her wrists. (Id. at 482-483); (State’s Ex. 40).
{¶36} According to E.M., after her wrists were bound, Bell continued to try
to kiss her. (Sept. 18-20, 2018 Tr., Vol. II, at 484). She testified that, at this point
in time, she tried to retrieve the hunting knife from her back pocket and that she was
able to get her fingers on one end of the knife. (Id. at 485). E.M. stated, however,
that because Bell noticed that she was moving her hands toward her back pocket,
she stopped reaching for the knife. (Id.).
{¶37} E.M. testified that after some time on the bed, Bell moved her from
the bed to the floor. (Id. at 486). She stated that as Bell took her off of the bed, she
“kick[ed] him in the genitals.” (Id.). E.M. testified that after she kicked Bell, Bell
got angry, pushed her down to the floor, got on top of her, and tried to kiss her again.
(Id.). She claimed that Bell then tried to force her to perform fellatio. (Id. at 488-
490). According to E.M., as Bell was doing this, his hands slipped and he grabbed
her throat. (Id. at 490). She said that she gasped for air and could not breathe for a
moment. (Id. at 490-491).
-20-
Case No. 9-18-40
{¶38} E.M. testified that, after this, Bell removed her pants and retrieved a
flashlight. (Id. at 492-493). She stated that while Bell busied himself with the
flashlight, she attempted to get off of the floor but was unable to due to her medical
problems and the fact that her hands were tightly bound. (Id. at 493). According to
E.M., when Bell returned, he forced her legs open and penetrated her vagina with
the flashlight. (Id. at 494-496). E.M. testified that after 5 to 10 minutes, Bell
stopped using the flashlight and tried to force her to perform oral sex again. (Id. at
496-497). She stated that Bell finally “wound up going back to [her] vagina and
inserting his penis in [her].” (Id. at 497).
{¶39} E.M. testified that after this ordeal ended, Bell untied her wrists. (Sept.
18-20, 2018 Tr., Vol. II, at 498). She stated that her wrists had turned black and
blue, that her hands were “freezing,” and that she could see “massive discoloration.”
(Id.). E.M. testified that after Bell untied her, she sat on the floor collecting herself
for a few moments before standing up and putting her pants back on. (Id.). She
stated that Bell permitted her to collect her cell phone and knife, both of which had
been thrown under Bell’s bed during the struggle. (Id. at 502). She stated that while
she remained in Bell’s bedroom, Bell kept apologizing to her and told her that he
“fucked up.” (Id. at 499). E.M. spoke with Bell for a few minutes before leaving,
and she testified that as she was leaving, she promised Bell that she would not go to
the police. (Id.). She testified that as she walked away from Bell’s house, she heard
-21-
Case No. 9-18-40
him loudly exclaim, “Fuck.” (Id.). E.M. confirmed that after leaving Bell’s house,
she was picked up by Henry and taken to Marion General. (Id. at 500-501).
{¶40} E.M. denied that she went to Bell’s house to have sex with Bell, and
she denied that she and Bell ever engaged in “rough sex.” (Id. at 473). Furthermore,
E.M. testified that Bell had never previously bound her wrists and that she never
asked Bell to tie her wrists on the day of the incident or at any time previously. (Id.).
She also testified that she never asked Bell to keep her on the bed or on the floor
against her will. (Id.). Finally, E.M. stated that at no time during the incident did
she decide to have consensual sex with Bell. (Id. at 483-484).
{¶41} On cross-examination, E.M. testified that she suffers from anxiety,
“slight” depression, schizophrenia, and bipolar disorder. (Sept. 18-20, 2018 Tr.,
Vol. II, at 520). She agreed that she occasionally does things that can be attributed
to her mental illnesses that she later regrets having done. (Id. at 521).
{¶42} In addition, E.M. testified that she never engaged in bondage during
consensual sex and that she never permitted Bell to bind her wrists. (Id. at 523).
She insisted that she never participated in bondage in any prior sexual relationship
and that she hates being tied up. (Id. at 524). When asked whether she told an
attorney who was previously involved in the case that she allowed Bell to bind her
wrists, E.M. denied making any such statement. (Id. at 523).
-22-
Case No. 9-18-40
{¶43} When questioned about her claim that she kneed Bell in the groin,
E.M. testified that she kneed him with “what force [she] had” and that she was sure
that she made contact with his genitals. (Id. at 543). She also stated that she bit
Bell as hard as she could on his left arm above his elbow. (Id.).
{¶44} On redirect examination, E.M. testified that her schizophrenia and
bipolar disorder do not interfere with her daily life. (Sept. 18-20, 2018 Tr., Vol. II,
at 556). Although she admitted that she did not take the medicine prescribed for
those disorders on the day of the alleged incident, she testified that she had taken
her medication the day before and that the only reason she had not taken her
medication was because the prescriptions were being refilled at the pharmacy. (Id.).
E.M. stated that she did not notice any change in her behavior brought on by having
missed her medications. (Id.). Furthermore, she testified that she was not under the
influence of any substance when she went to Bell’s house. (Id. at 557). Finally,
E.M. stated that she did not remember whether she broke Bell’s skin when she bit
him. (Id. at 558). She described the bite as a “quick bite.” (Id.).
{¶45} Bell offered the testimony of only one witness, Dr. George Shaw (“Dr.
Shaw”), who testified as an expert in emergency medicine. (Sept. 18-20, 2018 Tr.,
Vol. III, at 650). In Dr. Shaw’s opinion, E.M. had engaged in vaginal sexual activity
with a male because male DNA was found in her vagina. (Id. at 652, 654). In
addition, he concluded that Bell “engaged in sexual activity with [E.M.]” because
-23-
Case No. 9-18-40
“DNA samples from both individuals were on his penis.” (Id. at 652). However,
he “could not determine from either the laboratory evidence or the SANE exam”
whether the sexual activity was consensual or nonconsensual. (Id.). Furthermore,
Dr. Shaw believed that E.M.’s wrists “likely were bound as such is consistent with
her physical exam findings,” but he could not determine what was used to bind her
wrists. (Id. at 652-653). Finally, Dr. Shaw concluded that E.M. “was not strangled
as there is no medical evidence as such during her [emergency department] visit.”
(Id. at 652).
{¶46} When asked to elaborate on his conclusion that E.M. was not
strangled, Dr. Shaw explained that his conclusion was based on the fact that the
emergency room physician did not document any injuries to E.M.’s neck suggestive
of strangulation or other signs that she had been strangled, such as hoarseness or
shortness of breath. (See id. at 670). Dr. Shaw acknowledged that there were
“discordances” between the emergency room physician’s findings and Landoll’s
findings, but he felt that the emergency room physician was better qualified to
determine whether E.M.’s symptoms were consistent with strangulation. (Id.). Dr.
Shaw was also questioned about Landoll’s findings that the petechia behind E.M.’s
ear and the bruising to her neck were consistent with strangulation. He testified that
the dot behind E.M.’s ear might be a petechia, but he stated that he could not
determine from the available evidence whether it was a petechia. (Id. at 678-679).
-24-
Case No. 9-18-40
Dr. Shaw testified that further testing was required to determine whether the dot was
in fact a petechia and that there was no indication that Landoll performed this testing
during her examination. (Id. at 679-680). Finally, Dr. Shaw stated that “[i]n
general, an early bruise, 24 hours or less, is going to be purple, maybe blue * * *.
Mainly reddish purple, just the primary colors. It becomes yellow-ish later on.” (Id.
at 680-681). He testified that yellow-brown coloring tends to develop later in the
life of a bruise. (Id. at 681).
{¶47} On cross-examination, Dr. Shaw testified that “[a]ll patients are
different” and that some people bruise differently than others. (Id. at 700). He
stated that although it was his opinion that E.M. was not strangled, he could not
conclude that “no hands were put around her neck.” (Id. at 703). Dr. Shaw testified
that he did not have an opinion about, and that there was no way to know, “how
long hands could have been on [E.M.’s] neck.” (Id. at 704). He stated that it is
possible, though rare, for a strangulation victim to present with no external signs of
strangulation. (Id. at 703-704). Finally, Dr. Shaw reiterated that his opinion that
E.M. likely was not strangled was informed by the emergency room physician’s
report, notwithstanding Landoll’s observations. (Id. at 704-707).
{¶48} We begin with Bell’s argument that his rape and kidnapping
convictions are not supported by sufficient evidence. First, Bell argues that his
convictions are not supported by sufficient evidence because E.M.’s testimony was
-25-
Case No. 9-18-40
not credible. Specifically, Bell contends that E.M. “was caught lying under oath
while testifying.” (Appellant’s Brief at 13). He notes that E.M. “was caught lying
about what occurred on the bed as she became tied up with rope, having given four
different statements to the SANE * * * and the police over time.” (Id. at 14). Bell
also observes that, after having her recollection refreshed, E.M. “had to admit that
she cheated on [him] with another former boyfriend * * *.” (Id.). He further notes
that E.M. testified that she experienced “extreme pain all about her person” during
the incident but that she neglected to mention to Officer Michael Diem (“Officer
Diem”), who questioned her shortly after the incident, that she was experiencing
severe vaginal pain, though she told him about other pain she was experiencing.
(Id.).
{¶49} Bell argues that other questionable aspects of E.M.’s testimony
demonstrate that his convictions are not supported by sufficient evidence. Bell notes
that E.M.’s testimony that he put his hands around her neck is undermined by Dr.
Shaw’s testimony that “yellow-brown bruise marks tend to be older by days * * *.”
(Id. at 13). He also contends that Schoonard’s failure to find any “trauma, bite
marks, bruising, redness, or swelling to his groin area” and the fact that “absolutely
no marks could be found” on him despite E.M.’s claim that “she bit him as hard as
she could” cast doubt on E.M.’s account of the alleged attack. (Id.).
-26-
Case No. 9-18-40
{¶50} Furthermore, Bell seems to maintain that in light of the supposed
unreliability of E.M.’s testimony, an alternative explanation of events, i.e., that he
and E.M. engaged in consensual sexual intercourse, is more plausible. He points
out that there was evidence that E.M. suffers from schizophrenia, depression, and
bipolar disorder and that she did not take her prescribed medications on the day of
the alleged incident. (Id. at 12). Bell argues that “[t]his combination of mental
illness and lack of medical treatment * * * had caused the victim to engage in risky
and irrational behaviors that she had regretted in the past.” (Id.). He also implies
that this pattern of risky behavior is illustrated by the fact that “another male’s DNA
was found in [E.M.’s] vagina.” (Id. at 13). Moreover, Bell suggests that the reason
E.M. did not wait for Henry to accompany her to his house was because E.M. was
going to his house to engage in consensual sexual activity. (See id. at 12). He
further claims that the jury ignored both “testimony which could not conclude that
these acts were nonconsensual” and the fact that Landoll’s “examination and
findings are equally consistent between consensual and nonconsensual sex.” (Id. at
12-13). Finally, he contends that the not guilty verdicts on Counts One and Two of
the indictment are “completely inconsistent” with the guilty verdicts on Counts
Three and Four and constitute “further concrete evidence of insufficiency of the
evidence.” (Id. at 14).
-27-
Case No. 9-18-40
{¶51} Though Bell claims that he is challenging the sufficiency of the
evidence supporting his convictions, it is clear that his arguments go to the weight,
rather than the sufficiency, of the evidence. Therefore, Bell has failed to mount a
proper challenge to the sufficiency of the evidence supporting his convictions. Even
so, we have no difficulty concluding that Bell’s rape and kidnapping convictions are
supported by sufficient evidence. Viewing the evidence in a light most favorable to
the State, E.M.’s testimony establishes that by pinning E.M.’s arms to her side,
climbing on top of her and preventing her from getting up, and binding her wrists,
Bell applied force against E.M. Furthermore, E.M.’s testimony supports that Bell’s
purpose in exerting this force against her was to restrain her liberty in order to
engage in sexual conduct with her and to compel her to submit to this sexual
conduct. Lastly, E.M.’s testimony and the DNA evidence support that Bell did in
fact have vaginal intercourse with E.M., and E.M.’s testimony demonstrates that she
did not consent to having vaginal intercourse with Bell. Accordingly, we conclude
that any rational trier of fact could have found the essential elements of the offenses
of rape and kidnapping proven beyond a reasonable doubt and that Bell’s rape and
kidnapping convictions are therefore supported by sufficient evidence.
{¶52} Having concluded that Bell’s convictions are supported by sufficient
evidence, we now consider whether his convictions are against the manifest weight
of the evidence. In challenging the weight of the evidence supporting his
-28-
Case No. 9-18-40
convictions, Bell simply repeats the arguments he made in his attempt to challenge
the sufficiency of the evidence. (See Appellant’s Brief at 15-16). As indicated
above, these arguments fall into three general categories: (1) E.M.’s testimony was
not credible and inconsistent with other established facts; (2) the best interpretation
of the evidence is that E.M. and Bell had a consensual sexual encounter; and (3)
Bell’s convictions are inconsistent with his acquittals for Counts One and Two of
the indictment. We address each of these categories in turn.
{¶53} First, we reject Bell’s argument that his convictions are against the
manifest weight of the evidence because E.M.’s testimony was unreliable and
inconsistent with other evidence. With each inconsistency or alleged lie highlighted
by Bell, E.M. was afforded an opportunity to explain, or at least acknowledge, the
inconsistency or supposed lie. With respect to E.M.’s shifting accounts of what
happened on Bell’s bed and how she came to be tied up with the rope, E.M.
explained that because she was “very emotionally distraught” when giving her
accounts of the alleged incident to Officer Diem and Landoll, she may have omitted
or mixed up details relating to how she was positioned on Bell’s bed, how she moved
about the bed, and how Bell retrieved the rope and bound her hands. (See Sept. 18-
20, 2018 Tr., Vol. II, at 540-542).
{¶54} As for the issue of E.M. having to admit that she was once unfaithful
to Bell, at one point in her testimony, Bell’s trial counsel asked E.M. whether she
-29-
Case No. 9-18-40
had told Officer Diem that she “did [Bell] wrong,” and E.M. denied making such a
statement “because [she did not] see why [she] would have said it.” (Id. at 524-
525). However, after she reviewed a recording of the statement she made to Officer
Diem, she conceded that she told Officer Diem that she had wronged Bell. (Id. at
534). While she did not further clarify why she denied making the statement, she
later explained that the statement related to the fact that she was “still having some
* * * occasional sexual intercourse with [her] ex while [she] was talking to [Bell].”
(Id. at 557). Finally, E.M. acknowledged that she disclosed her wrist injuries to
Officer Diem, that Officer Diem asked her whether she had any additional injuries,
and that she failed to tell Officer Diem that she was experiencing severe vaginal
pain. (Id. at 552). She testified that the reason she did not mention her pain to
Officer Diem was because it was “something [she] didn’t want to exactly mention
at that point in time * * *.” (Id. at 553).
{¶55} Here, the jury was aware both of the inconsistencies or supposed lies
in E.M.’s testimony and of E.M.’s explanations for these discrepancies. The jury,
being able to observe E.M.’s demeanor and tone of voice, was uniquely positioned
to decide whether to accept E.M.’s explanations and credit her testimony or reject
her explanations and discount this testimony and her testimony generally. “‘While
the jury may take note of the inconsistencies and resolve or discount them
accordingly, * * * such inconsistencies do not render [a] defendant’s conviction
-30-
Case No. 9-18-40
against the manifest weight * * * of the evidence.’” State v. Mann, 10th Dist.
Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37, quoting State v. Nivens, 10th Dist.
Franklin No. 95APA09-1236, 1996 WL 284714, *3 (May 28, 1996). After
reviewing the record, if the jury resolved these inconsistencies in favor of E.M. and
elected to credit her testimony, we cannot say that it erred by doing so.
{¶56} Moreover, Bell’s convictions are not against the manifest weight of
the evidence simply because some of the physical evidence might have conflicted
with E.M.’s account of the incident. Though Dr. Shaw opined that E.M. was not
strangled and that the bruising on her neck would typically indicate an older bruise,
he testified that it is possible for a strangulation victim to present without any
external evidence of strangulation, and he and Landoll both testified that every
person bruises differently. Furthermore, Dr. Shaw could not say that hands were
not placed around E.M.’s neck. Thus, it would not have been unreasonable for the
jury to conclude that E.M. was in fact strangled or that Bell put his hands around
her throat but did not apply force sufficient to cause external injuries. In addition,
while Bell did not exhibit any injuries to his groin or any signs that he had been
bitten, the record contains evidence that would allow the jury to reconcile these
discrepancies. Although E.M. stated that she kneed Bell in the groin with “what
force [she] had,” there is no evidence in the record speaking to how much force
E.M. was capable of applying. Further, while E.M. reported that she bit Bell as hard
-31-
Case No. 9-18-40
as she could, she also characterized the bite as a “quick bite.” Accordingly, it would
not have been impossible for the jury to conclude that E.M. kneed Bell in the groin
and bit him with all the force she could muster, but that this force was not enough
to produce injury capable of documentation the next day. Finally, and perhaps most
importantly, “‘[a] jury, as finder of fact, may believe all, part, or none of a witness’s
testimony.’” State v. Barrie, 10th Dist. Franklin No. 15AP-848, 2016-Ohio-5640,
¶ 22, quoting State v. Taylor, 10th Dist. Franklin No. 14AP-254, 2015-Ohio-2490,
¶ 34. Consequently, given the particular facts of this case and the evidence produced
at trial, the jury could have found that E.M. did not knee or bite Bell or that she
kneed and bit him with less force than she claimed but still have found Bell guilty
of rape and kidnapping.
{¶57} Bell’s second argument, that his convictions are against the manifest
weight of the evidence because the evidence is more consistent with a finding of
consensual sexual intercourse than with a finding of nonconsensual sexual
intercourse, fares no better than his first argument. While Bell did not testify at trial,
and therefore did not offer his own firsthand account of the incident, it is clear that
a substantial objective of Bell’s trial strategy was to suggest to the jury that he and
E.M. had consensual sexual intercourse on March 28, 2018. Both during cross-
examination of the State’s witnesses and in the presentation of Dr. Shaw’s
testimony, Bell’s trial counsel attempted to establish that the physical evidence was
-32-
Case No. 9-18-40
as consistent with a finding of voluntary sexual intercourse as it was with a finding
of involuntary sexual intercourse. Yet, the jury ultimately elected to accept the
State’s theory that Bell bound E.M.’s wrists against her will and engaged in
nonconsensual vaginal intercourse over Bell’s suggestion that the encounter was
consensual. It is well established that “‘[a] verdict is not against the manifest weight
of the evidence because the finder of fact [chose] to believe the State’s witnesses
rather than the defendant’s version of the events.’” State v. Piatt, 9th Dist. Wayne
No. 19AP0023, 2020-Ohio-1177, ¶ 37, quoting State v. Martinez, 9th Dist. Wayne
No. 12CA0054, 2013-Ohio-3189, ¶ 16.
{¶58} Finally, we reject Bell’s argument that his convictions are against the
manifest weight of the evidence because his convictions for Counts Three and Four
are irreconcilably inconsistent with the not-guilty verdicts returned for Counts One
and Two. “Every count of a multiple-count indictment is considered to be distinct
and independent of all the other counts[.]” State v. Rardon, 5th Dist. Delaware No.
17 CAA 04 0027, 2018-Ohio-1935, ¶ 73, citing State v. Trewartha, 165 Ohio
App.3d 91, 2005-Ohio-5697, ¶ 15 (10th Dist.). Hence, “‘[c]onsistency between
verdicts on several counts of an indictment is unnecessary where the defendant is
convicted on one or some counts and acquitted on others; the conviction generally
will be upheld irrespective of its rational incompatibility with the acquittal.’” State
v. Smith, 193 Ohio App.3d 201, 2011-Ohio-997, ¶ 22 (3d Dist.), quoting Trewartha
-33-
Case No. 9-18-40
at ¶ 15, citing State v. Adams, 53 Ohio St.2d 223 (1978). “‘[J]uries can reach
inconsistent verdicts for any number of reasons, including mistake, compromise,
and leniency. * * * [I]t would be incongruous for a defendant to accept the benefits
of an inconsistent verdict without also being required to accept the burden of such
verdicts.’” State v. Gravelle, 6th Dist. Huron No. H-07-010, 2009-Ohio-1533, ¶ 77,
quoting State v. Taylor, 8th Dist. Cuyahoga No. 89629, 2008-Ohio-1626, ¶ 10.
Thus, the fact that the verdicts for Counts Three and Four might be inconsistent with
the verdicts for Counts One and Two does not mean that Bell’s convictions for
Counts Three and Four are against the manifest weight of the evidence. State v.
Carson, 5th Dist. Licking No. 18-CA-25, 2018-Ohio-5305, ¶ 44-47 (rejecting the
appellant’s argument that his gross sexual imposition conviction was against the
manifest weight of the evidence “because it [was] somehow inconsistent with the
acquittals on the rape and attempted-rape counts”); State v. Norman, 10th Dist.
Franklin No. 10AP-680, 2011-Ohio-2870, ¶ 13-15 (concluding that the appellant’s
conviction was not against the manifest weight of the evidence despite the State’s
concession that the jury’s verdicts were not consistent); Gravelle at ¶ 76-77.
{¶59} Bell’s second assignment of error is overruled.
Assignment of Error No. I
The appellant had his rights to due process of law violated under
Article I, Section 10 of the Ohio Constitution and the Sixth
-34-
Case No. 9-18-40
Amendment of the United States Constitution, in being
compelled to stand trial when trial counsel was rendered
ineffective for failing to object to the introduction of the SANE
report for the victim prior to testimony by the SANE nurse. [Tr.
Vol. I, 214].
{¶60} In his first assignment of error, Bell argues that he received ineffective
assistance of counsel. Specifically, Bell argues that his trial counsel was ineffective
because his trial counsel “should have objected to the introduction of the SANE
report of [E.M.] and testimony by [Landoll] at trial.” (Appellant’s Brief at 8). He
contends that “the introduction of the SANE report contained enough prejudicial
evidence, which was not admitted for a medical purpose or treatment and, thereby,
prejudiced the jury against him on Counts 3 & 4 in the Indictment” and that “[b]ut
for the introduction of this hearsay and tainted evidence, the jury likely would have
acquitted [him] on Counts 3 & 4, as it did on Counts 1 & 2.” (Id.).
{¶61} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
the counsel’s performance was deficient or unreasonable under the circumstances;
and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio
St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052 (1984). In order to show counsel’s conduct was deficient or unreasonable, the
-35-
Case No. 9-18-40
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the
errors complained of must amount to a substantial violation of counsel’s essential
duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), citing
State v. Lytle, 48 Ohio St.2d 391, 396 (1976).
{¶62} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
{¶63} After reviewing the record, we conclude that Bell has not established
that he received ineffective assistance of counsel. First, we cannot conclude that
Bell’s trial counsel was ineffective for failing to object to the introduction of the
SANE report because his trial counsel did object to the introduction of the report
when the State sought to admit it at the close of its case. (See Sept. 18-20, 2018 Tr.,
-36-
Case No. 9-18-40
Vol. III, at 627-630). Bell acknowledges that his trial counsel objected to the
admission of the SANE report, but claims that “this objection was untimely, as the
damage and prejudice to the jury had been done already.” (Appellant’s Brief at 8-
9). We disagree. While Landoll had access to the SANE report during her
testimony, she did not read extensively from the report during her testimony, and
there is no indication that the jury had access to the full report at any time before the
State moved to admit it. Thus, we fail to see how Bell’s trial counsel’s decision to
defer a challenge to the admissibility of the SANE report until the State moved to
admit the report was deficient or unreasonable under the circumstances.
{¶64} In addition, we cannot conclude that Bell’s trial counsel performed
deficiently or unreasonably by failing to object to the hearsay contained in Landoll’s
testimony. In her testimony, Landoll related several statements that E.M. made to
her during the course of E.M.’s sexual assault examination on March 28, 2018.
Almost without exception, in the statements Landoll testified about, E.M. described
the events that allegedly caused her reported injuries and the attending
circumstances. (See, e.g., Sept. 18-20, 2018 Tr., Vol. I, at 218-219) (“[S]he did tell
me that she blacked out * * *. She did say that he had force on her neck.”); (See,
e.g., id. at 228) (E.M. reported “that she was tied up with nylon rope; and then that
she did try to fight the rope off but wasn’t able to.”). As these statements appear to
have been made for purposes of medical diagnosis or treatment, as opposed to
-37-
Case No. 9-18-40
having been made for criminal investigative purposes, and because they were
reasonably pertinent to E.M.’s diagnosis or treatment, they fall squarely within
Evid.R. 803(4), under which statements made for purposes of medical diagnosis or
treatment are excepted from the rule against hearsay. Accordingly, we cannot fault
Bell’s trial counsel for failing to object to this testimony.
{¶65} Moreover, even if we were to conclude that Bell’s trial counsel
performed unreasonably or deficiently by failing to object to Landoll’s testimony
and by not objecting sooner to the admission of the SANE report, we cannot
conclude that there is a reasonable probability that the outcome of Bell’s trial would
have been different if his trial counsel had successfully objected to the admission of
this evidence. When the SANE report and Landoll’s testimony about E.M.’s
statements are set aside, there is still considerable evidence supporting that Bell
kidnapped and raped E.M. E.M.’s trial testimony covered most of what is contained
in the SANE report and in the portions of Landoll’s testimony to which Bell now
objects. E.M.’s testimony supports that Bell bound E.M.’s hands against her will,
restrained her freedom of movement, and forced her to submit to vaginal
intercourse. In addition, the photographic evidence showing ligature marks on
E.M.’s wrists, the presence of E.M.’s DNA on Bell’s genitals, suprapubic area, and
thigh, and the likely presence of Bell’s DNA inside of E.M.’s vagina substantiate
-38-
Case No. 9-18-40
E.M.’s claims. Accordingly, even if Bell’s trial counsel’s performance was
unreasonable or deficient, Bell has not demonstrated that he was prejudiced.
{¶66} Bell’s first assignment of error is overruled.
{¶67} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
-39-